Changing a child’s surname to their father’s in the Philippines is a common legal process, yet it is often shrouded in confusion regarding which specific procedure applies. Under Philippine law, the path depends entirely on the marital status of the parents at the time of the child’s birth and whether they marry later.
Here is a comprehensive guide to the two primary methods: Republic Act No. 9255 and Legitimation.
1. Republic Act No. 9255 (For Illegitimate Children)
Prior to 2004, illegitimate children were strictly required to use their mother’s surname. RA 9255, signed into law on February 24, 2004, amended Article 176 of the Family Code, allowing illegitimate children to use the father's surname if the father has formally recognized the child.
Scope and Applicability
- Who it’s for: Children born out of wedlock whose parents are not married to each other.
- The Requirement: The father must acknowledge paternity through a public document or a private handwritten instrument.
The Mechanism: The AUSF
The most critical document in this process is the Affidavit of Admission of Paternity (AAP) or the Affidavit to Use the Surname of the Father (AUSF).
- If the father signed the birth certificate: He has already admitted paternity. The mother or guardian simply needs to file the AUSF.
- If the father did NOT sign the birth certificate: He must execute an Affidavit of Admission of Paternity, followed by the AUSF.
Where to File
- Born in the Philippines: Local Civil Registry Office (LCRO) where the birth was registered.
- Born Abroad: Philippine Consulate or Embassy with jurisdiction over the place of birth.
2. Legitimation (By Subsequent Marriage)
Legitimation is a process where a child born out of wedlock is considered "legitimated" (placed in the same status as a legitimate child) because their parents married each other after the birth.
Requirements for Legitimation
Under the Family Code and RA 9858, a child can be legitimated if:
- The parents were not disqualified by any legal impediment to marry each other at the time the child was conceived.
- The parents subsequently enter into a valid marriage.
Note: If one or both parents were still married to someone else (bigamy) or were under the legal age at the time of conception, the child cannot be legitimated; they remain illegitimate but may still use the father's name via RA 9255.
The Process
- Affidavit of Legitimation: Both parents execute an affidavit stating the date and place of marriage and that no legal impediment existed at the time of conception.
- Registration: This is filed with the LCRO where the birth was recorded.
- Annotation: The original birth certificate is not discarded. Instead, a marginal annotation is added to the record stating the child is now legitimated and will use the father's surname.
Comparison: RA 9255 vs. Legitimation
| Feature | RA 9255 | Legitimation |
|---|---|---|
| Parental Status | Unmarried | Married (after birth) |
| Child's Status | Remains "Illegitimate" | Becomes "Legitimated" |
| Surname Change | Allowed via AUSF | Allowed via Marriage/Affidavit |
| Rights | Limited successional rights | Full rights of a legitimate child |
3. General Requirements for Filing
While specific local civil registrars may have slight variations, the standard documentary requirements include:
- Certified True Copy (CTC) of the Child’s Birth Certificate.
- Affidavit of Admission of Paternity (if not signed on the birth certificate).
- Affidavit to Use the Surname of the Father (AUSF).
- Certificate of Marriage (for Legitimation only).
- Certificate of No Marriage (CENOMAR) of both parents (to prove no legal impediment for Legitimation).
- Valid IDs of the parents.
4. Key Legal Effects
Changing the surname is not merely cosmetic; it has lasting legal implications:
- Parental Authority: For illegitimate children (RA 9255), parental authority remains with the mother even if the child uses the father's surname, unless a court orders otherwise.
- Support: Recognition of paternity (the basis for the name change) legally obliges the father to provide financial support.
- Succession: Legitimated children have the same inheritance rights as those born within marriage (100% of the legitime). Illegitimate children who use the father’s name under RA 9255 are entitled to 50% of the legitime of a legitimate child.
Important Reminder on Timing
- For births after March 19, 2004: RA 9255 applies directly.
- For births between August 3, 1988, and March 19, 2004: The process is slightly different as it falls under the transition period of the Family Code and the implementation of RA 9255. These cases often require a petition for "Correction of Entry" or manual filing of recognition documents.
Would you like me to draft a sample Affidavit to Use the Surname of the Father (AUSF) for your reference?