Dad can’t force illegitimate son to use his surname

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Persida Acosta

Persida Acosta

Dear PAO,
I had a live-in partner a few years back. Because of financial problems, we decided to break up. We had a son, who is 7 years old now. I was not around when our son was born so I was not able to sign his birth certificate. If ever I will acknowledge my son, can I compel him to use my surname?
Rene Boy

Dear Rene Boy,
It is evident based on your narration that your son is illegitimate, as he was born outside a valid marriage. As an illegitimate child, the law mandates him to use the surname of his mother. The law, however, allows him to use the surname of his father, if he was recognized as a child by the latter. This is the clear and unambiguous provision of the law, particularly Article 176 of the Family Code as amended by Republic Act (RA) 9255, to wit:

“Article 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this code. However, illegitimate children may use the surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child.”

As explicitly stated in the law, an illegitimate child shall use the surname of his/her mother. In the event that he/she was acknowledged by his/her father, he/she is given the choice to use the latter’s surname. It, however, does not follow that just because the child was recognized as such by the father, he/she is obliged to use his/her father’s surname. In the case of Grace M. Grande vs. Patricio T. Antonio (G.R. No. 206248, February 18, 2014), the Supreme Court had the occasion to expound on the matter as follows:


“Now comes the matter of the change of surname of the illegitimate children. Is there a legal basis for the court to order the change of the surname to that of respondent?

Clearly, there is none. Otherwise, the order or ruling will contravene the explicit and unequivocal provision of Art. 176 of the Family Code, as amended by RA 9255.

Article 176 gives illegitimate children the right to decide if they want to use the surname of their father or not. It is not the father (herein respondent) or the mother (herein petitioner) who is granted by law the right to dictate the surname of their illegitimate children.

Nothing is more settled than that when the law is clear and free from ambiguity, it must be taken to mean what it says and it must be given its literal meaning free from any interpretation. Respondent’s position that the court can order the minors to use his surname, therefore, has no legal basis.

On its face, Article 176, as amended, is free from ambiguity. And where there is no ambiguity, one must abide by its words. The use of the word “may” in the provision readily shows that an acknowledged illegitimate child is under no compulsion to use the surname of his illegitimate father. The word “may” is permissive and operates to confer discretion upon the illegitimate children.”

Thus, as can be gleaned from the foregoing, you cannot compel your son to use your surname.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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