I have read that illegitimate children may not be compelled to use the surname of their father. Is this true? I have an eight-year-old illegitimate child. Her father has not actually acknowledged her yet, although he has signified his intention. The last time we spoke, he told me that he will only execute an affidavit of paternity if I will guarantee him that our daughter will be using his surname, to which I am not amenable because he is very irresponsible and he prioritizes his vices over us. I just want to know if I am on the right side. I do not want to do something that is contrary to our laws or which may be prejudicial to my daughter. I hope you can enlighten me.
The law that is applicable to your concern is Republic Act (R.A.) 9255. It is particularly stated therein that, “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. x x x” (Emphasis supplied)
It is clear from the very provision above-stated that the general rule is that illegitimate children are mandated to use the surname of their mother. It is only an exception to this rule that illegitimate children may be allowed to use the surname of their father.
Accordingly, illegitimate children may not be compelled to use the surname of their father. In the same vein, the father of your eight-year-old illegitimate child may not compel you or your daughter to use his surname, even if he acknowledges his filiation with said child.
This rule is upheld in the recent decision of the Supreme Court in the case of Grande vs. Antonio (G.R. No. 206248, February 18, 2014), where the highest tribunal declared that the provisions of Article 176 of the Family Code of the Philippines, as amended by R.A. 9255, are explicit and unequivocal, clear and free from any ambiguity. The Court held that “x x x 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. x x x” Further, the court ruled that, “x x x 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. x x x”
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.
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