Everything You Need to Know About Applying Republic Act No. 9255 (“Allowing Illegitimate Children to Use the Surname of Their Father”) — When the Child’s Mother Was Previously Married (Philippine legal context, updated as of 16 June 2025)
1. Legislative Framework at a Glance
| Law / Issuance | Key Point | Relevance to a Previously-Married Mother |
|---|---|---|
| Republic Act 9255 (effective 19 March 2004) | Amends Art. 176 of the Family Code so an illegitimate child may bear the father’s surname if the father “recognizes” the child in the manner the Act requires. | The child must first be indisputably illegitimate. If the mother was still married to someone else when the child was born (or within 300 days from dissolution of that marriage), the child is presumed legitimate in law—RA 9255 cannot operate until that presumption is overturned. |
| Administrative Order No. 1, s. 2004 (IRR of RA 9255, Civil Registrar-General) | Lays down the Affidavit to Use the Surname of the Father (AUSF) procedure before the Local Civil Registry Office (LCRO). | Provides the checklist of supporting documents—including those proving the mother’s marital history. |
| RA 9048 as amended by RA 10172 | Authorises the LCRO to correct clerical errors or change a child’s first name administratively. | The surname change under RA 9255 is not a clerical correction; it follows its own process (AUSF). |
| Rule 108, Rules of Court | Judicial proceeding to cancel or correct substantial entries in the civil registry. | Needed only if the child is “legitimate by presumption” (because the mother was still married) and the parties intend to impugn legitimacy or change the status of the child. |
2. Preliminary Question: Is the Child Truly “Illegitimate”?
| Scenario | Is the Child Illegitimate? | What Must Be Done Before RA 9255? |
|---|---|---|
| Mother’s previous marriage was already dissolved by death, annulment or a decree of nullity before conception, and the child is born more than 300 days after the dissolution. | Yes. Presumption of legitimacy does not attach. | None. Child qualifies immediately for RA 9255. |
| Mother’s marriage exists (or was dissolved < 300 days before birth) when the child is born. | Presumed Legitimate under Arts. 164-168, Family Code. | A case under Rule 108 (or sometimes an action to impugn under Art. 170-171) must first be filed to have the civil registry annotation changed from “legitimate” to “illegitimate”. Not an AUSF matter yet. |
| Mother’s marriage has no record of dissolution but parties separated de facto. | Still presumed legitimate to the legal husband. | Court action required. RA 9255 administrative route unavailable until the presumption is defeated. |
Practical Tip. LCROs invariably require (1) an annotated marriage certificate showing the decree of nullity/annulment and its certificate of finality, or (2) a death certificate of the prior spouse, to show the presumption of legitimacy no longer applies.
3. Who May File, and When?
Father or Mother (on behalf of child)
- Child below 7 years old – either parent may execute the AUSF.
- Child 7–17 years old – child must sign in the AUSF together with the parent.
Child alone
- 18 years up to 21 – child signs the AUSF, with mother’s consent.
- 22 years or older – child may file independently; parental consent is not required.
Important: The father’s express recognition and consent to the surname change are indispensable under Sec. 3, RA 9255. If the father is deceased, his recognition must already appear in the birth record (e.g., he already signed the birth certificate or a prior Affidavit of Acknowledgment).
4. Documentary Checklist (Typical LCRO Practice)
| Document | Purpose / Notes |
|---|---|
| Affidavit to Use the Surname of the Father (AUSF) | Must be subscribed before the LCR, assisted by a notary or administering officer. |
| Public-issued ID of Executing Party/Parties | To prove identity. |
| PSA-certified Birth Certificate (Child) | Original record to be annotated. |
| Father’s PSA CENOMAR (Certificate of No Marriage) or PSA Marriage Certificate | Shows father’s civil status; reconfirms no existing marriage that would render the child legitimate elsewhere. |
| Mother’s Annotated Marriage Certificate + Decree of Nullity/Annulment or Spouse’s Death Certificate | Proves dissolution of prior marriage; defeats legitimacy presumption. |
| If child is 7–17 y/o: Child’s school ID or any government ID | For the child’s co-signature and consent. |
| Processing fee (varies: P150–P300 LCRO, plus PSA annotation fee) | Official receipt needed for PSA endorsement. |
Some LCROs ask for a barangay certification of residency or community tax certificate (CTC) for local verification, while others require the father’s personal appearance to sign the AUSF in front of the Civil Registrar.
5. Step-by-Step Administrative Flow
- Prepare and sign the AUSF with the supporting documents.
- File at the LCRO of the child’s place of birth or usual residence.
- Pay the regulatory fees (local + transmittal to the PSA main office).
- LCRO evaluates, registers the AUSF, and tags the entry as a “petition under RA 9255.”
- Posting period (15 calendar days) on the LCRO bulletin board.
- If unopposed, LCRO approves, annotates the birth record, and forwards to PSA-OCRG.
- PSA releases the annotated Birth Certificate (“with father’s surname”) usually within 1–3 months, depending on back-room queue times.
Time line: 2–6 months in Metro Manila; generally shorter in low-volume municipalities.
6. Fees and Typical Time-Frames (2025)
| Stage | Govt. Fee (PhP) | Who Collects | Duration |
|---|---|---|---|
| Filing & annotation | 150 – 300 | LCRO | Same day |
| PSA annotation & copy issuance | 160 (per copy) | PSA | 2 – 8 weeks |
| Notarial oath fees | 200 – 500 (market rate) | Private notary | At execution |
| Optional newspaper publication (very rare) | 1 000 – 3 000 | Publisher | Only when LCRO orders—usually unnecessary |
7. Legal Consequences — What the AUSF Does and Does Not Do
| Effect | Explanation |
|---|---|
| Change of Surname | The child may legally use the father’s surname in all public and private records (passports, school records, PhilHealth, GSIS/SSS, driver’s license, bank accounts, etc.). |
| No legitimation | RA 9255 does not legitimate the child. Status remains “illegitimate,” subject to later legitimation (e.g., by subsequent valid marriage under Art. 177 Family Code) or adoption. |
| Inheritance Rights | Child already enjoys compulsory-heir status as an illegitimate child under Art. 887 Civil Code. Using the father’s surname does not expand or reduce successional shares. |
| Child Support | Father’s acknowledgment strengthens the enforceability of support under Art. 195(5), Family Code, but the duty existed even before the surname change. |
| Citizenship | No effect; citizenship is determined by parentage, not surname. |
| Travel Consent Rules | DFA and BI typically require the acknowledged father’s consent (or a DSWD clearance) for minors travelling abroad, similar to legitimate minors. |
8. Special and Problematic Cases
Father refuses to sign the AUSF but earlier signed the Birth Certificate AUSF need not be executed; father’s earlier signature is already a sufficient act of recognition. Mother (if still within age ranges allowed) may execute the AUSF alone, attaching a PSA-certified copy of the birth-certificate showing the father’s signature.
Father abroad / unavailable Notarised or consularised AUSF and Special Power of Attorney (SPA) may be accepted, provided the signature is authenticated by the Philippine Embassy/Consulate.
Clerical mistakes (e.g., wrong father’s first name) Must first be corrected via RA 9048 proceedings at the LCRO before or simultaneously with the RA 9255 petition.
Surname change disallowed – Child already uses the father’s surname and seeks to revert to mother’s surname → Covered by RA 9048 (change of first name or surname). – Father disputes paternity post-AUSF → Father must institute action to impugn recognition; until a court judgment is issued, the annotated record stands.
9. Interaction With Related Proceedings
| Proceeding | Why It May Be Needed | Court / Administrative? |
|---|---|---|
| Rule 108 (Art. 412 Civil Code) | To cancel the presumption of legitimacy when the mother was still married. | RTC (special proceeding) |
| Petition for Legitimation (Art. 177) | If parents later marry each other and wish to confer legitimacy. | LCRO or RTC (depending on local practice) |
| Adoption | Where father or step-father wishes to legitimate and adopt simultaneously; creates full legitimate status. | RTC – Family Court |
| Change of Given Name / Clerical Error (RA 9048/10172) | E.g., wrong spelling of father’s surname, wrong sex, birth-date errors. | LCRO |
10. Checklist for Legal Practitioners
- Confirm the mother’s marital status at the time of conception and birth; obtain the marriage certificate and dissolution decree or death certificate.
- Count the 300-day period under Art. 168.
- Secure father’s recognition (signature on AUSF or earlier acknowledgment).
- Prepare AUSF in triplicate with IDs and notarisation.
- File at correct LCRO; pay fees; follow up posting period.
- Monitor PSA annotation; obtain new PSA birth certificate.
- Advise client on subsequent steps (passport renewal, PhilHealth update, school records, SSS/GSIS).
11. Frequently Asked Questions
| Question | Short Answer |
|---|---|
| Can the LCRO reject an AUSF if the father’s ID is foreign and un-authenticated? | Yes. IDs must be authenticated or consularised if issued abroad. |
| Does the child have to change his first name to match the father’s preference? | No. RA 9255 affects only the surname. |
| Is publication required? | Only if ordered by the LCRO because of opposition—rare for RA 9255 cases. |
| Can a DNA test substitute for the AUSF? | No. DNA may be used in court to prove paternity, but the AUSF (or father’s prior signature) is still the statutory mode of acknowledgment. |
| What if the child is already 30? | He/she may file an AUSF personally. Age is no bar once of majority age. |
12. Key Take-aways
- Single biggest hurdle in cases where the mother was still married: defeating the presumption of legitimacy. No amount of AUSF paperwork can shortcut this—only death, annulment/nullity (plus the lapse of 300 days), or a court action can.
- The AUSF procedure is purely administrative and relatively quick once the illegitimacy issue is settled.
- RA 9255 is about equal identity, not legitimacy. It allows the child the social and psychological benefit of the father’s surname while keeping intact the civil-code distinction between legitimate and illegitimate.
Remember: requirements vary slightly from one LCRO to another. Always verify the latest local checklist and processing times, and obtain certified PSA copies of all relevant documents before appearing at the registry.