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Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
AT A GLANCE:
The rules on the use of surnames by a child depends whether a child is legitimate, legitimated, adopted, or illegitimate.
- Legitimate and legitimated: His or her father’s o mother’s surname;
- Adopted: The adopter’s surname; and,
- Illegitimate: The mother’s surname or the father’s surname provided, all requisites are complied with.
(New Civil Code and Republic Act No. 9255)
When a child is born, they are typically bestowed with a name, commonly chosen by the parents or another significant individual in the child’s life. While the process of assigning a first name is generally straightforward and personalized, determining which surname to be used involves additional considerations.
In many societies, the default practice is to inherit the father’s surname, a convention deeply rooted in historical and patriarchal norms. Nevertheless, is this approach an unequivocal rule when it comes to using surnames? While the tradition of inheriting the father’s surname is prevalent in many cultures and often considered the default practice, it is essential to recognize that this is not an absolute rule universally. Let’s delve into this matter more deeply.
In our legal jurisdiction, the regulations governing the selection and use of a surname for a child hinge on the child’s legal status, distinguishing between categories such as legitimacy, legitimation, adoption, and illegitimacy.
For Legitimate and Legitimated Children
Generally speaking, legitimate children are those born to parents who are legally married. In such cases, the child typically inherits the surname of the father, adhering to the conventional practice in many jurisdictions. This linkage to the father’s surname reflects the legal recognition of the marital union.
On the other hand, legitimation refers to the process of granting legal status to a child born out of wedlock, typically through subsequent marriage of the parents. Legitimated children may acquire the father’s surname following the legitimation process, solidifying their legal connection to the family.
Further, the New Civil Code says:
Legitimate and legitimated children shall principally use the surname of the father. (Article 364, New Civil Code)
The use of the term “principally” introduces a level of discretion and choice for the parents. While the conventional practice is for these children to inherit the father’s surname, the term “principally” implies that the mother’s surname could also be considered.
Thus, it can be inferred that legitimate and legitimated children have the option to adopt either their father’s or mother’s surname, as the law specifies that the surname of the father is primarily to be used. The term “principally” emphasizes a preference rather than an exclusive requirement, allowing for flexibility in surname selection.
In fact, there is no legal obstacle if the child chooses to use the surname of the mother, as he is equally entitled thereto. (Sta. Maria, 2017)
For Adopted Children
For adopted children, the New Civil Code provides:
An adopted child shall bear the surname of the adopter.
(Article 365, New Civil Code)
As a way of example, when the adopter is a single woman, the adopted child will carry the surname of the single woman adopter upon grant of the petition for adoption.
However, a question arises if the adopter subsequently enters into marriage. What happens to the adopted child’s surname in such a scenario? The answer is that, the adopted child retains their existing surname – the maiden surname of the single woman adopter. This is because the adoption process occurred under the single status of the woman as a sole adopter.
Hence, if the husband wishes to have the adopted child bear his surname, another petition to legally adopt the child is required. This shall facilitate the change of the child’s surname to that of the husband.
For Illegitimate Children
Illegitimate children who are born to parents who are not legally married, may have different rules regarding surname assignment. The New Civil Code says:
Illegitimate children referred to in Article 287 shall bear the surname of the mother. (Article 368, New Civil Code)
Children conceived before the decree annulling a voidable marriage shall principally use the surname of the father. (Article 368, New Civil Code)
However, under Republic Act No. 9255, an illegitimate child shall bear the surname of the mother, OR the father provided all requisites needed under the law are present. The law says:
Article 176 of Executive Order No. 209, otherwise known as the Family Code of the Philippines, is hereby amended to read as follows:
“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.” (Section 1, Republic Act No. 9255, An Act Allowing Illegitimate Children to Use the Surname of Their Father)
Thus, the child has the option to use the surname of the father in the following instances:
- If his/her filiation has been expressly recognized by the father through the record of birth appearing in the civil registry; or,
- When an admission of paternity is made by the father in a public document or private handwritten instrument. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime.
Under the above mentioned provisions, the use of the illegitimate father’s surname is permissive and not obligatory. (Rabuya, 2009)
In essence, the rules regarding the use of surnames for children in our jurisdiction are intricately tied to legal categories such as legitimacy, legitimation, adoption, and illegitimacy.
Read also: Married Woman on the Use of Surname of Her Husband
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