ARTICLES 175-176 OF THE FAMILY CODE OF THE PHILIPPINES

FAMILY CODE OF THE PHILIPPINES

TITLE VI: PATERNITY AND FILIATION

Chapter 3. Illegitimate Children

Article 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children.

The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent. (289a)

Filiation of illegitimate children may establish as follows:

Art. 172

ü  Record of birth appearing in the civil register or final judgment; or

ü  An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned;

Ø  In the absence of the foregoing evidence, the legitimate filiation shall be proved by;

§  The open and continuous possession of the status of a legitimate child; or

§  Any other means allowed by the Rules of Court and special laws.

Art. 173

ü  Claim for legitimacy 

Ø  May be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during his minority or in state of insanity. (5 years to institute action)

Art. 172 paragraph 2

ü  (2) An admission of legitimate filiation in a public document or private handwritten instrument and signed by the parent concerned;

ü  Article 172 paragraph 2 is an exception because if the putative parent is already dead, he can no longer talk or defend his/herself.

Illustration:   

§  A and B have an illegitimate child C born on 1988.

§  A died in 2010. C cannot go to Court anymore to establish filiation because of the death of A.

§  But if A died when C is still a minor, he has the right to go to court to establish filiation.

Surname of illegitimate child

Article 176 and RA 9255

The provision of Article 176 of the Family Code states that:

• illegitimate children shall use the surname of their mother

• shall be under the parental authority of their mother 

• shall be entitled to support in conformity with this Code.

However, it has been amended by RA 9255, “An Act Allowing Illegitimate Children to Use the Surname of their Father” which took effect on February 4, 2004.  The law now provides that “illegitimate children may use the surname of their father when: 

• if their filiation has been expressly recognized by their father through the record of birth appearing in the civil registrar; 

• the admission in a public document or private handwritten instrument is made by the father.

If the putative(supposed) father is not sure  whether or not he is really the father of the illegitimate child or children, the law provides that the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime and the legitime of each illegitimate child shall consist of one-half of the legitimate child. 

Note that it is not the father or the mother who is granted by the law the right to dictate the surname of their illegitimate children because the law uses the word “may”.  Therefore, the illegitimate children has the right to decide whether or not they use the surname of the father.

Remember: The yardstick by which policies affecting children are to be measured is their best interest.

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. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. (287a)

Legitimate Children	Illegitimate Children
As to Use of Surname
Right to bear father’s surname	Generally required to use the mother’s surname Exception: If child’s 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 (R.A. No. 9255, Sec. 1).
As to Parental Authority
Joint authority of parents	Sole parental authority of mother
As to Support
Entitled to receive support from any of his or her direct ascendants and descendants in accordance with the priority set by law in Art. 195 and 199 of Family Code (Sta. Maria supra at 686).	Entitled to receive support only up to his or her grandparents or grandchildren as provided for in Art. 195, pars. 2 and 3 (Sta. Maria, supra at p.686).
As to Successional Right
Entitled to inheritance	Entitled to ½ of legitimate child’s inheritance

Definition of Terms:
Illegitimate – Children conceived and born outside a valid marriage. (Art. 165)

Legitimate – Children conceived or born during the marriage of the parents. (Art. 164)

Paternity and Maternity – is the civil status of a father / mother with regard to the child.

Filiation – Is the civil status of a child with regard to his parents. Nature or by adoption (Art. 163)

Handwritten Autobiography

In Dela Cruz vs. Garcia (G.R. No. 177728, July 31, 2009), a handwritten autobiography of the father was recognized as evidence of filiation although not signed. The Court ruled that “where the private handwritten instrument is accompanied by other relevant and competent evidence, it suffices that the claim of filiation therein be shown to have been made and handwritten by the acknowledging parent as it is merely corroborative of such other evidence.”

CASE DIGEST:

G.R. No. 177728               July 31, 2009

JENIE SAN JUAN DELA CRUZ and minor CHRISTIAN DELA CRUZ "AQUINO," represented by JENIE SAN JUAN DELA CRUZ, Petitioners, vs. RONALD PAUL S. GRACIA, in his capacity as City Civil Registrar of Antipolo City, Respondent.

Ponente: Justice CARPIO MORALES

FACTS:

Ø  Petitioner Jenie San Juan Dela Cruz (Jenie) and then 19-year old Christian Dominique Sto. Tomas Aquino (Dominique) lived together as husband and wife without the benefit of marriage.

Ø  On September 4, 2005, Dominique died. After almost two months, or on November 2, 2005, Jenie, who continued to live with Dominique’s parents, gave birth to her herein co-petitioner minor child Christian Dela Cruz "Aquino".

Ø  Jenie applied for registration of the child’s birth, using Dominique’s surname Aquino, with the Office of the City Civil Registrar, Antipolo City, in support of which she submitted the child’s Certificate of Live Birth, Affidavit to Use the Surname of the Father (AUSF) which she had executed and signed, and Affidavit of Acknowledgment executed by Dominique’s father Domingo Butch Aquino.

Ø  Jenie attached to the AUSF a document entitled "AUTOBIOGRAPHY" which Dominique, during his lifetime, wrote in his own handwriting.

Ø  The City Civil Registrar of Antipolo City, Ronald Paul S. Gracia (respondent), denied Jenie’s application for registration of the child’s name because the child was born out of wedlock.

Ø  Jenie and the child promptly filed a complaint for injunction/registration of name against respondent before the Regional Trial Court of Antipolo City.

Ø  The trial court held that even if Dominique was the author of the handwritten Autobiography, the same does not contain any express recognition of paternity.

Ø  Hence, this Petition for Review on Certiorari was filed before the Supreme Court.

ISSUE:

Whether or not the unsigned handwritten instrument of the deceased father of minor Christian can be considered as recognition of paternity

RULING: Yes. The Court ruled that the private handwritten instrument is accompanied by other relevant and competent evidence; it suffices that the claim of filiation therein be shown to have been made and handwritten by the acknowledging parent as it is merely corroborative of such other evidence.

Article 176 of the Family Code, as amended by RA 9255, permits an illegitimate child to use the surname of his/her father if the latter had previously recognized him/her as his offspring through an admission made in a pubic of private handwritten instrument.

Article 176, as amended, does not explicitly state that there must be a signature by the putative father in the private handwritten instrument.

The following rules respecting the requirement of affixing the signature of the acknowledging parent in any private handwritten instrument wherein an admission of filiation of a legitimate or illegitimate child is made:

1) Where the private handwritten instrument is the lone piece of evidence submitted to prove filiation, there should be strict compliance with the requirement that the same must be signed by the acknowledging parent; and

2) Where the private handwritten instrument is accompanied by other relevant and competent evidence, it suffices that the claim of filiation therein be shown to have been made and handwritten by the acknowledging parent as it is merely corroborative of such other evidence.

References:

Judge Albano, Ed Vincent S. (2017). Family Code of the Philippines

https://www.lawphil.net/judjuris/juri2009/jul2009/gr_177728_2009.html