Dear PAO,
I gave birth to my illegitimate child from my previous relationship in 2006. In 2008, I got married to my Canadian husband. On the same year, 2008, I applied for my Canadian visa at the Canadian Embassy here in the Philippines and I declared in my application my child and the name of his biological father.

After the said marriage, we successfully managed to change the surname of my son to that of my husband. He was carrying my surname in his birth certificate. My husband executed two affidavits for the change of name, affidavit to use surname of the father and affidavit of admission of paternity, which were notarized by the Philippine Consulate in Canada.

In 2011, I submitted the visa application of my son at the Canadian Immigration. But six months before the supposed release, it found the discrepancy in the name of my son’s father in my previous visa application before the Canadian Embassy and the birth certificate of my son. The visa application of my son was denied. We requested for assistance at the Canadian Immigration in Manila and the office wanted us to rectify the birth certificate of my son to remove the name of my husband as his biological father. Please help us with my problem.
Judith

Dear Judith,
A perusal of your narration reveals that you were able to change the surname of your son from yours to that of your husband through Republic Act (RA) No. 9255 entitled “An Act Allowing Illegitimate Children to Use the Surname of their Father, Amending for the Purpose Article 176 of Executive Order No. 209, Otherwise known as then Family Code of the Philippines”. Under the Rules and Regulations Governing the Implementation of RA No. 9255, an illegitimate child whose birth was registered under the surname of the mother may use the surname of his father through submission of accomplished affidavit to use the surname of the father and an affidavit of acknowledgement. The affidavits shall be registered at the local civil registry of the place where the birth of the child is recorded. Thereafter, the local civil registrar shall enter the appropriate annotation in the birth certificate of the child allowing the child to use the surname of his illegitimate father by reason of the latter’s acknowledgement.

According to you, your husband has executed the two mentioned affidavits, affidavit to use surname of the father and affidavit of acknowledgment, in order for your child to use the surname of your husband before you actually got married to him, which he has no legal or moral obligation to do since he is not the biological father. In order to rectify or correct the birth certificate of your son containing the acknowledgment of your husband, you have to file in court a petition for cancellation or correction of entry in the civil registry under the provisions of Rule 108 of the Rules of Court. However, the declaration of your husband that your son is his in the child’s birth certificate has legal implications. The process that your husband has undertaken did not only have the effect of changing the surname of your child to that of your husband; it has also declared your child to be your husband’s. The act of your husband in declaring your child as his is an act which may constitute criminal liability as he was declaring under oath a statement which he knows to be untrue. Accordingly he may be liable for perjury and simulation of birth punishable under Articles 183 and 347 respectively of the Revised Penal Code.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.