In the Philippine legal system, the default rule for illegitimate children—those born out of wedlock—was historically to use the surname of their mother. However, Republic Act No. 9255, which amended Article 176 of the Family Code, provides a legal mechanism for illegitimate children to use the surname of their father, provided certain conditions of recognition are met.
The Legal Basis
Under the original text of the Family Code, illegitimate children were compelled to use the mother’s surname. RA 9255, enacted in 2004, modified this by stating that illegitimate children may use the surname of their father if their filiation has been expressly recognized by the father.
This recognition can be established through:
- The Record of Birth appearing in the civil register; or
- An Admission of Paternity in a public document or a private handwritten instrument.
Requirements for the Change
The process depends largely on when the birth was registered and whether the father signed the birth certificate.
1. At the Time of Birth
If the father is willing to acknowledge the child at the time of birth, he must sign the Affidavit of Admission of Paternity (AAP) found at the back of the Certificate of Live Birth (COLB). In this scenario, the child can immediately take the father's surname upon registration.
2. After the Birth has Been Registered
If the child was initially registered under the mother’s surname, the following documents are required to effect the change:
- Affidavit of Admission of Paternity (AAP): Executed by the father, stating he is the biological father of the child.
- Affidavits to Use the Surname of the Father (AUSF): * If the child is 0–6 years old, the mother or guardian executes the AUSF.
- If the child is 7–17 years old, the child executes the AUSF with an "Attestation" from the mother.
- If the child is of age (18+ years old), the child executes the AUSF personally without need for maternal attestation.
Where to File
The application is filed at the Local Civil Registry Office (LCRO) of the city or municipality where the birth occurred.
- For births abroad: The documents are filed with the Philippine Foreign Service Post (Embassy or Consulate) of the country of birth.
- For births in the Philippines but the parties reside elsewhere: The documents may be executed before a notary public or consular officer and sent to the LCRO where the birth was recorded.
Important Procedural Nuances
The "Mandatory" vs. "Permissive" Nature The Supreme Court has clarified that the use of the father's surname is a right granted to the child, not a requirement. The word "may" in RA 9255 implies that the choice remains with the child (or the mother/guardian, depending on the child's age).
Private Handwritten Instruments If the father is deceased or unavailable but left behind a handwritten note or letter specifically admitting paternity, this can serve as the basis for the change. However, this often requires further verification or a court order if the LCRO finds the evidence insufficient.
Effect on the Birth Certificate Unlike a "Correction of Clerical Error," a change under RA 9255 results in an annotation on the original Certificate of Live Birth. The original surname (the mother's) is not erased; instead, a remark is added stating that the child is now authorized to use the father’s surname pursuant to RA 9255.
Limitations of RA 9255
It is critical to distinguish between using a surname and legitimation.
- RA 9255 only allows the use of the surname; it does not change the child's status from illegitimate to legitimate.
- Legitimation only occurs if the parents were qualified to marry at the time of conception and subsequently enter into a valid marriage.
If the father refuses to sign an admission of paternity, RA 9255 cannot be used. In such cases, a judicial action for Compulsory Recognition must be filed in court to prove filiation through DNA testing or other evidence.
Summary Table: Who Executes the AUSF?
| Age of Child | Who Executes the AUSF? | Requirement |
|---|---|---|
| 0 to 6 years | Mother or Guardian | Father's Admission of Paternity |
| 7 to 17 years | The Child | Mother's Attestation + Father's Admission |
| 18 years and above | The Child | Father's Admission of Paternity |