I was born in 1991. My father married my mother in October 1997, but my mother is legally married to another man before she married my father. In short, my father is her second husband.
My Philippine Statistics Authority (PSA) birth certificate was registered in November 1997. I do not have a middle name in my birth certificate and my surname was followed after my mother’s surname. There was an annotation that I was “legitimated by the subsequent marriage” of my parents. But there was no annotation as to my correct complete name; that is, bearing the surname of my father.
I tried to process the additional annotation in my PSA birth certificate so that it would reflect my father’s surname, because I have been using my father’s surname in my other papers like my transcript, diploma, driver’s license and the like. But I was told that I should first cancel my existing birth certificate, because it is not possible for me to be legitimated considering that my mother has a first marriage. Is this true? What should I do?
Legitimation is a process whereby an illegitimate child is raised to the status of legitimacy by reason of the subsequent valid marriage of his/her parents. However, three elements must exist in order for legitimation to take place: (1) The parents must not be disqualified to marry each other by any legal impediment at the time of conception of the child, or if so disqualified but only because either or both of them is/are minor parent/s; (2) The child is conceived and born outside of a valid marriage; and (3) The parents subsequently enter into a valid marriage (Section 1, Republic Act No. 9858).
In your situation, it cannot be denied that your mother entered into two marriages and that her marriage with your father is the subsequent one. Initially, it may be said that her marriage with your father is void considering that she has a prior marriage. But the same is not conclusive as you may have been conceived and born at the time when your mother’s first marriage was already nullified or annulled by the court, or you were conceived and born at the time when her first husband has already passed away, in which case there is no legal impediment for her to enter into a subsequent relationship with another man. Thus, it would be prudent for you to determine first whether these circumstances are applicable to your case. If so, then legitimation may still take place. You will only need to present additional supporting documents such as the death certificate of the prior spouse of your mother or the court order of the presumptive death, in case he was presumed dead, or the court order nullifying or annulling your mother’s first marriage.
However, if your mother’s first marriage is still subsisting and her prior spouse is still alive at the time when you were conceived and born, then it is correct to say that you may not be legitimated and you may not use the surname of the person you are claiming to be your father. For all legal intents, you are considered the legitimate child of your mother and her legal spouse. Thus, you have the right to bear their surnames. This is in consonance with Article 167 of the Family Code of the Philippines which provides that: “The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.”
It is only when there is a strong evidence that could prove the impossibility of sexual activities between them that the court may consider declaring against your legitimacy. To further elucidate this provision our Supreme Court has explained:
“x x x As a guaranty in favor of the child21 and to protect his status of legitimacy, Article 167 of the Family Code provides:
Article 167. The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.
The law requires that every reasonable presumption be made in favor of legitimacy. We explained the rationale of this rule in the recent case of Cabatania v. Court of Appeals:
The presumption of legitimacy does not only flow out of a declaration in the statute but is based on the broad principles of natural justice and the supposed virtue of the mother. It is grounded on the policy to protect the innocent offspring from the odium of illegitimacy.
x x x
The presumption is quasi-conclusive and may be refuted only by the evidence of physical impossibility of coitus between husband and wife within the first 120 days of the 300 days which immediately preceded the birth of the child.
To rebut the presumption, the separation between the spouses must be such as to make marital intimacy impossible.32 This may take place, for instance, when they reside in different countries or provinces and they were never together during the period of conception.33 Or, the husband was in prison during the period of conception, unless it appears that sexual union took place through the violation of prison regulations. x x x” (Concepcion vs. Court of Appeals,G.R. No. 123450. August 31, 2005).
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.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to email@example.com