Sunday, January 28, 2007

Family Code of the Philippines: Primer on illegitimate children

Summary:

[1] Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in the Family Code.

[2] Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children.

[3] A petition for compulsory recognition of an illegitimate child must be filed during the lifetime of the alleged parent.

[4] Illegitimate children must use the surname of their mother. They are under the exclusive parental authority of their mother.

RA 9255, however, gives illegitimate children the right to use their biological father’s surname under certain conditions.

[5] If the biological father does not acknowledge the child, the entry for middle name in the birth certificate must be left blank.

[6] The legitime (share in the inheritance) of each illegitimate child is one-half of a legitimate child’s legitime.

[7] Illegitimate children are entitled to financial support.

[8] Related posts:

(Note: Click the picture to download a free PDF newsletter on the topic “Visitation rights over illegitimate children”.)

Articles 175 and 176 of the Family Code provide for the ways by which illegitimate children can establish their filiation, and their rights as to their surname and inheritance. (Republic Act 9255, approved on February 24, 2004, amended Art. 176.)

Who are illegitimate children?

Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in the Family Code.

How can illegitimate children establish their filiation?

Illegitimate children may establish their filiation (or relationship with their biological parent) in the same way and on the same evidence as legitimate children.

How can the filiation of legitimate children (and of illegitimate children) be proved?

The filiation of legitimate children is established by any of the following:
[1] The record of birth appearing in the civil register or a final judgment; or

[2] An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.
In the absence of these evidence, the legitimate filiation is proved by:
[1] The open and continuous possession of the status of a legitimate child; or

[2] Any other means allowed by the Rules of Court and special laws.
What is the difference between voluntary recognition and compulsory recognition of an illegitimate child?
Voluntary recognition must be express such as that in a record of birth appearing in the civil register, a final judgment, a public instrument or private handwritten instrument signed by the parent concerned. The voluntary recognition of an illegitimate child by his or her parent needs no further court action and is, therefore, not subject to the limitation that the action for recognition be brought during the lifetime of the putative parent.

Judicial or compulsory recognition, on the other hand, may be demanded by the illegitimate child of his parents and must be brought during the lifetime of the presumed parents.
(Divinagracia v. Bellosillo, No. L-47407, 12 August 1986, 143 SCRA 356; Victoria C. Tayag, Petitioner, vs. Felicidad A. Tayag-Gallor, Respondent, G.R. No. 174680, March 24, 2008)

Who should file the action to claim the status of an illegitimate child? When should it be filed?

Based on Article 175, the action (or court case, in simpler terms) to claim the status of an illegitimate child must be filed:
  • by the guardian of a child who is a minor, or is incapacitated or insane, during the child’s lifetime;
  • by the child, upon reaching the age of majority;
  • by the child’s heirs if the child dies during minority or insanity, within five years from the death.
If the child dies after reaching the age of majority without filing the action, the heirs cannot file it.

If the ground for filing the action is open and continuous possession of the status of a illegitimate child, it must be filed during the lifetime of the alleged parent. (Article 175, 2nd paragraph)

What surname should illegitimate children use?


(Note: Please read my post “What surname should illegitimate children use?”)

Illegitimate children should use the surname and be under the parental authority of their mother. They are entitled to support in conformity with the Family Code. (Article 176, Family Code)

Republic Act 9255, approved on February 24, 2004, amended Article 176. Under RA 9255, illegitimate children may use 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. The father, however, has the right to file an action before the regular courts to prove non-filiation.

If the father does not recognize the child, the entry for middle name in the birth certificate must be left blank

In the case of In Re: Petition for Change of Name and/or Correction/Cancellation of Entry in Civil Registry of Julian Lin Carulasan Wang, the Supreme Court ruled:
Our laws on the use of surnames state that legitimate and legitimated children shall principally use the surname of the father. The Family Code gives legitimate children the right to bear the surnames of the father and the mother, while illegitimate children shall use the surname of their mother, unless their father recognizes their filiation, in which case they may bear the father’s surname.

Applying these laws, an illegitimate child whose filiation is not recognized by the father bears only a given name and his mother’ surname, and does not have a middle name. The name of the unrecognized illegitimate child therefore identifies him as such. It is only when the illegitimate child is legitimated by the subsequent marriage of his parents or acknowledged by the father in a public document or private handwritten instrument that he bears both his mother’s surname as his middle name and his father’s surname as his surname, reflecting his status as a legitimated child or an acknowledged child.(Emphasis by boldfacing supplied)
How much is the legitime (share in the inheritance) of an illegitimate child?

The legitime of each illegitimate child is one-half of the legitime of a legitimate child. Please read “Computing the legitimes of legitimate and illegitimate children; an illegitimate child gets one-half”.

Illegitimate children are entitled to financial support

[1] If the illegitimate children have not been recognized by their biological father, they can file a petition for compulsory recognition and financial support. They can ask the court to compel the father to undergo DNA testing. (Please read DNA testing to prove legitimacy or illegitimacy of children; Supreme Court’s New Rule on DNA Evidence)

[2] If the father has recognized the illegitimate children by signing the birth certificate or through a written document, they can file a petition for Protection Order for support under Section 8, paragraph (g) of RA 9262. (If the father claims that his signature or the document was forged, they can ask the court to compel him to undergo DNA testing.)

Through a Protection Order, the court will order the father and his employer to set aside a certain percentage of his salary to be remitted directly to the children on a monthly basis. If the father or his employer, or both fail to do so, they can be charged with contempt of court.

The Family Code does not provide a specific percentage of the monthly salary for the support. It only provides that amount of support is balanced between the necessities of the person asking for support and the financial capability of the person from whom support is being asked. Support can be reduced or increased proportionately, according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to furnish the same.

241 comments :

1 – 200 of 241   Newer›   Newest»
Anonymous said...

my husband has a child before we got married. we are not lucky to have children of our own, my question is how much would then be the legitime of the child considering that we don't have a legitimate child?

Atty. Gerry T. Galacio said...

1. Clarifications first: Legitime is the legal term used when referring to the share in an inheritance when there is a last will and testament involved. This falls under what the New Civil Code refers to as testate succession.

When a person dies without a last will and testament, the share in the inheritance is called intestate share. This falls under the New Civil Code provisions on legal or intestate succession.

The proportions for the legitime and intestate share are not the same, although the intention of the law is for the two to be more or less equal.

In testate succession, the proportions are such that there is what we call the free portion which the testator (the person making the will) can give to anyone he or she chooses.

The surviving spouse gets his or her share in the community property or conjugal partnership first. After that share has been deducted, then the legitimes or intestate shares are computed.

2. Your husband’s compulsory heirs are you and his illegitimate son. When your husband dies, the legitimes are 1/3 for illegitimate children and 1/3 for the surviving spouse. The intestate shares are 1/2 for the illegitimate children and 1/2 for the surviving spouse.

The relevant provisions of the New Civil Code are as follow:

Legitime

Art. 894. If the testator leaves illegitimate children, the surviving spouse shall be entitled to one-third of the hereditary estate of the deceased and the illegitimate children to another third. The remaining third shall be at the free disposal of the testator.

Intestate share

Art. 998. If a widow or widower survives with illegitimate children, such widow or widower shall be entitled to one-half of the inheritance, and the illegitimate children or their descendants, whether legitimate or illegitimate, to the other half.


3. Assuming that your husband’s parents are still alive when he dies, then the proportions are the following: Legitime – illegitimate children1/4, surviving spouse 1/8, and legitimate parents,1/2. On the other hand, intestate shares - illegitimate children 1/4, surviving spouse 1/4, and legitimate parents,1/2.

The relevant provisions of the New Civil Code in this situation are as follow:

Legitime

Art. 899. When the widow or widower survives with legitimate parents or ascendants and with illegitimate children, such surviving spouse shall be entitled to one-eighth of the hereditary estate of the deceased which must be taken from the free portion, and the illegitimate children shall be entitled to one-fourth of the estate which shall be taken also from the disposable portion. The testator may freely dispose of the remaining one-eighth of the estate.

Intestate share

Art. 1000. If legitimate ascendants, the surviving spouse, and illegitimate children are left, the ascendants shall be entitled to one-half of the inheritance, and the other half shall be divided between the surviving spouse and the illegitimate children so that such widow or widower shall have one-fourth of the estate, and the illegitimate children the other fourth.


4. I will assume that you have not adopted the child. Since you and the child are not related, he has no right to inherit from you. Your compulsory heirs are your husband and your parents; or in your parent’s absence, your siblings (and nephews and nieces representing your dead siblings, if any).

5. You can read more about legitimes and intestate shares in the New Civil Code section of my Family Matters website at www.familymatters.org.ph.

hello29 said...

we had a child out of wedlock.i am 18 then. the child is now 6yrs old. his father and i decided to marry each other last year, but before that we already petitioned RA9255 in order for our child to use the surname of his father. now my question is how can we apply for the legitimation of our child and what are the steps we needed? thanks so much for the help

Atty. Gerry T. Galacio said...

hello29,

Articles 177 to 182 of the Family Code are the governing laws for the legitimation of children. Please take note that you must have been 18 years of age at the time your child was CONCEIVED. If you were below 18 at the time of the conception, then legitimation will not apply in your child’s case. Please surf to my Salt and Light blog and read my article Legitimation, the rights of illegitimate children, Spongebob and Gary, Dingdong and Marianne on the proposed amendments to the FC provisions on legitimation. The link is http://-salt-and-light-.blogspot.com/2007/08/legitimation-rights-of-illegitimate.html

As to the procedures and required documents, please surf to the National Statistics Office website at www.census.gov.ph. Or you can go to the Local Civil Registrar in your town or city. The LCR has a checklist of documents needed for legitimation. It is only a matter of getting the required documents, filling up certain forms, lining up and submitting the requirements.

Anonymous said...

Hi!good day..I appreciate very much your column here...and i know that you can also help me a lot...i am married, problems is, my husband left me last year to UAE carrying a visit visa without any permission...but prior to that he already was an OFW.only that time he left without any word..because we're startin to have a bad marrige because i learned that he had a woman in UAE...after he left last year, he does not support the family well anymore..he rarely communicate with us anymore..we have two sons..a 4 and 5 yr old boys..he regularly sent us money but very minimal..ranging 3,000 to 6,000 a month...but that does not suffice for our expenses, i m very much burdened to this...i feel so bad aboutit..i dont know what to do..my sons are both goin to school now..and it means money..pls help..how am i goin to ask for paternal support to him..i dont know what company he is connected into and if he is still in UAE..pls help me what to do..thank you so much..

cyril

Atty. Gerry T. Galacio said...

Cyril,

1. Please read my article “Support for abandoned woman and family” also found in this blog (look for the link in the sidebar) or copy and paste this link
http://famli.blogspot.com/2006/10/support-for-abandoned-woman-and-family.html

2. The problem is that your husband is outside the reach of Philippine law while he is in UAE. In order for a Protection Order to be effective against him, he must be here in the Philippines.

3. You can try to avail of the benefits under the Solo Parents Welfare Act of 2000. Go to the DSWD in your town or city and submit the requirements. The benefits are not that substantial but they can help in some way.

4. If you and your husband have some property, you can ask the court for authority to dispose of these properties in the absence of your husband.

Anonymous said...

i am a widow, but got pregnant with a married man. i do not want to reveal the father's name in the birth certificate when i give birth to my child. What would be the middle name of my child and the surname? (of course i wont use the surname of my late husband) please help.

Atty. Gerry T. Galacio said...

Under Article 176 of the Family Code, illegitimate children must use the surname of the mother (in your case, your maiden surname), The entry for middle name in the birth certificate is left BLANK.

Anonymous said...

Hi Atty.

Good day! I have a question, Is a child considered illegitimate if his surname is not the same as his father since birth? The mother had a falling out with her husband after the child was born but they were legally married (this happen long time ago in the early 1900's). They got seperated after the child was born, and was so mad with the husband she registered the child to her surname, after 25 years the child decided to be go back with his father and was accepted. The child is now old and both his parents are deceased. Does the child has legal rights to claim ownership with his fathers property? Or properties from the relatives of his father (his father has sisters which are unmarried and has no child).

thanks a lot and more power to your blog.

Atty. Gerry T. Galacio said...

The child must file the necessary petitions in court so that his relationship to his father can be established AND to enable him to claim his rights as a compulsory heir. This is quite difficult since both parents are now deceased, although not impossible.

First of all, Article 167 of the FC is in favor of the child. The said article states, “The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress”. Since the child was born during the marriage, then it is considered as legitimate. The mother’s act of registering the child under her surname can be considered as equivalent to a mother declaring against its legitimacy. But as the Supreme Court has ruled consistently, a child born during the marriage is considered legitimate.

Some other evidence that can establish his filiation (relationship with the father) under Article 172 of the Family Code are (a) an admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned; and (b) he open and continuous possession of the status of a legitimate child.

Anonymous said...

I am separated and of course still using my husband's surname. I'm now pregnant with my current partner. What surname will my child use and how about the middle name? Thanks Atty.

Atty. Gerry T. Galacio said...

Under the amendment to Article 176 of the Family Code, the child can use the surname of the biological father. OR you can use your maiden surname as the child’s surname with the entry for middle name left blank. In either case, however, your husband can possibly use this as evidence against you in a case for adultery.

Anonymous said...

as a follow up question for the one above...is it okay for us to leave the country until such time that everything has been taken care of legally...will my pregnancy affect an ongoing annulment case that i have filed?

Atty. Gerry T. Galacio said...

1. You have to be present during court hearings for your petition for nullity.

2. Because of your pregnancy,
your husband can file an Answer in your nullity case alleging that you are the one who is psychologically incapacitated. You have to consult your lawyer on this matter.

Anonymous said...

thanks for the nice and informative blogs atty. i am 17 y/o when i gave birth to my first child and 1yr & 4months later gave birth to my second child, both of the same father and was acknowledged on their birth certificates too. i was not allowed by my parents to marry the kids' dad coz i have to finish my studies first. i separated with him before i gave even gave birth to my youngest child. i had moved on, graduated college, got a good job in the US and financially supported the kids alone and i visit my kids every year on my annual leave from work. my parents and siblings already migrated to UK 5 years ago, and my parents agreed with the kids' dad's parents to take care of the kids while their immigration papers are being processed. the things is, there is no physical evidence that they had this agreement. this year, i am now 25 y/o and married the man of my dreams this year and were planning to get the kids to stay with us. what is the proper thing to do since the kids were left in the philippines living with their grandparents (father side)? how will i attain legal custody papers? i hope u can help me out. thanks a lot.

Atty. Gerry T. Galacio said...

You are not married to your kids’ father and so they are illegitimate. Under Article 176 of the Family Code, illegitimate children are under the sole parental authority of the mother (even if acknowledged by the biological father in the birth certificates AND even if RA 9255 was availed of). Custody thus belongs to you. It does not matter that there was no signed agreement that your in-laws were just supposed to take care of your kids temporarily.

If your in-laws refuse to give your kids to you, then you (or anyone with personal knowledge of the situation acting in your behalf) can file a petition for a Protection Order under RA 9262 to gain custody. I have several articles on RA 9262 in this blog and in my Salt and Light blog. Please take time to read them, especially the article on Protection Orders.

According to RA 9262 and its implementing rules, you can regain custody of your kids almost immediately. Petitions for Protection Orders are supposed to be finished within 30 days from the time the petition is filed. On the day you file the petition, the court may immediately issue a TPO (Temporary Protection Order) and within 30 days, the hearings for the issuance of a PPO (Permanent Protection Order) must be finished.

Anonymous said...

Atty im puting into consideration availing RA 9255 for my child.The only reason why she's using my family name is because my family insisted since we cannot get marry at that time.The annulment of her father is still in process, if ther annulment will be granted and supposing we get marry in the future will the marriage make her a legitimate child?If I opt for RA 9255 will she automatically use my maiden name as her middle name?
thanks a lot.

Atty. Gerry T. Galacio said...

1. Even if the annulment of your daughter’s father is granted and you get married, she will still be illegitimate. This is because the requirements of the Family Code regarding LEGITIMATION are not present, specifically the following article:

Art. 177. Only children conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other may be legitimated.

When your daughter was conceived, her father was still married. Thus legitimation cannot take place because of this legal impediment.

2. Under RA 9255, if the father allows it, your daughter can use his surname. The middle name will of course be your maiden name. However, there will be a notation on the birth certificate (done by the Local Civil Registrar) that RA 9255 was made use of, meaning it will be clear to anyone that you and the father are not legally married.

You have to inquire with the Local Civil Registrar as to the procedure in availing of RA 9255. In brief, however, if the father had signed the birth certificate of your daughter, then that means he allows the use of his name. In other cases, he can execute an AUSF (Affidavit to Use the Surname of the Father) and you can submit this to the LCR.

Anonymous said...

What would happen if the father never admitted the child to be his, never signed any documents, never established any connection between himself and the child? Will the illegitimate child still be entitled to the inheritance left by the father (even if a last will and testament is present leaving everything to the legitimate children and wife)? And can the illegitimate child still seek for monetary support from the father even if he is not recognized? Thank you.

Atty. Gerry T. Galacio said...

Article 175 of the Family Code, in relation to Article 172, provides for the means by which legitimate and illegitimate children can prove their filiation (relationship with the parents). Article 172 provides:

The filiation of legitimate children is established by any of the following:

(1) The record of birth appearing in the civil register or a final judgment; or

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

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

(1) The open and continuous possession of the status of a legitimate child; or

(2) Any other means allowed by the Rules of Court and special laws.


The means allowed by the Rules of Court (Section 130) are :

(a) An act or declaration concerning pedigree
(b) Family reputation or tradition concerning pedigree
(c) Common reputation concerning pedigree
(d) Judicial admission
(e) Admission of a party
(f) Admission by silence

Please surf to the Chan Robles website for you to see these portions of Section 130 of the Rules of Court.

It follows that if a person cannot prove his legitimate or illegitimate filiation, then he or she cannot inherit or ask support from the parent concerned.

Anonymous said...

good day!

i have a daughter whose last name is of the father's, however, we are not married. he has signed the birth cert acknowledging the fact that he is the father. i would now like to change her last name to my name. how and can i do that without asking for the biological father's consent? thank you. your blog site is very informative.

Atty. Gerry T. Galacio said...

Under the Implementing Rules of the NSO for RA 9255, when the father signed the birth certificate, that was his permission for the child to use his surname. RA 9255 does not provide for situations when for one reason or another, the mother now wants the child to carry her surname. You are not the first person to ask me this question, incidentally.

The proper procedure for changing the surname of your child is to file a petition for cancellation or correction of entries in the civil registry under Rule 108. There is a copy of Rule 108 in the Legal Procedures section of my Family Matters website at www.familymatters.org.ph

Please take note that even if the father signed the birth certificate, thus acknowledging that he is the father, your child is still illegitimate. Under Article 176 FC, illegitimate children are under the sole parental authority of the mother. However, there might be a problem with the court which will handle the petition. RA 9255 was enacted (primarily due to the efforts of Sen. Loren Legarda) precisely for the benefit of illegitimate children. The judge will surely question your motives and reasons for wanting to change the child’s surname. The court might require the biological father to file his comment to your petition. In the first place, you might have to include the biological father as a RESPONDENT (a party against whom a petiton is filed).

Practically speaking, you have to retain the services of a lawyer who will file the Rule 108 petition for you.

Anonymous said...

just a follow up question re the comment on june 6 at 3:26 am.

what if the woman gets married and the husband would like to adopt the child whose last name is of the father. would there be a problem if the husband who is not the biological father be able to do so or would they still need the father's consent for that?

Atty. Gerry T. Galacio said...

Please read my article “Procedures in adoption under RA 8552” http://famli.blogspot.com/2007/11/procedures-in-adoption-under-ra-8552.html

Anonymous said...

good day!
atty. I'm pregnant at present,25 years of age, i just want to ask if naming our baby after my boyfriends surname will affect his mothers petition to him from america. we're not married and his mother's petition to him indicates that he's only single.
thank you in advance!

rinoah

Atty. Gerry T. Galacio said...

rinoah,

Article 176 of the Family Code as amended by RA 9255 allows illegitimate children to use the surname of the biological father if he allows it. Once your child is born, you can ask your boyfriend to sign an AUSF (Affidavit to Use the Surname of the Father), and then submit it to the Local Civil Registrar. OR, if your boyfriend signs the birth certificate, then that is his authorization for the use of his surname. Please take note however that even if the child uses the surname of the father, the child is still illegitimate.

A man can be single and yet have a child using his surname as provided for by the Family Code. As to the possible effect on his potential immigration to the US, that can only be answered by the US embassy here.

If you want people to pray for you and your situation right now, please follow this link: http://womentodaymagazine.com/chat/share.html

Gina Lyn said...

Atty., I have an illegitimate daughter. I wasn't aware that her middle name should be left BLANK. So now, we are both using the same middle name. How should I correct this? Thank you very much

Atty. Gerry T. Galacio said...

You have to file a petition under Rule 108 for correction or cancellation of entries in the civil register. There is a copy of Rule 108 under the Legal Procedures section of my website www.familymatters.org.ph

Trixie said...

hi!!!

My bestfriend was married 10 yrs ago when she was still 18 and her boyfriend 17 with a consent form from both parents i don't know y, coz she's not pregnant at all maybe parent's decision. They had a civil marriage but wasn't able to go back at the date given for the release of their marriage contract. And now they are having difficulties in trying to request for a copy of their marriage contract because they forgot the date they were married and until now she's using her maiden name. what can she do about this coz i've already helped her but then the date is very important for the request to be processed. She wants to resolved this asap coz they are planning to have a baby and she fears it would be a lot of problem for the baby and even for them. It affects almost everything. Thank you!

Atty. Gerry T. Galacio said...

The real and biggest problem that your bestfriend has is not the date of her marriage but the validity of her marriage. Article 35, paragraph 1 of the Family Code states that a marriage contracted by any party below eighteen years of age even with the consent of parents or guardians is void from the beginning.

(Under Article 40 FC, there must be a judicial declaration of nullity before any of the parties can get married again.)

Trixie said...

hi!
thanks for the immediate response, so , she is not legally married to the guy? i'm sorry but i don't understand. what will happen then? or what can she do about it? They can't just get married again? coz she's 28 now and her husband is 27...i must tell her about this, her in-law is a lawyer y did they allowed this to go this far and didn't do something about it for almost 10 yrs now and they are still 2gether....tnx so much...

Atty. Gerry T. Galacio said...

1. Most probably, it was made to appear that the guy was already 18 years old at the time of the marriage (when in fact he was actually only 17).

2. If it can be proven that the guy was actually 17 at the time of the marriage, then the marriage is void. However, as I said, there must be a declaration of nullity in compliance with Article 40 FC.

If nobody questions the validity of the marriage, then their situation goes on as it has been going on for the last ten years of their lives. Meaning, they treat each other as legally maried spouses when in fact ther marriage can be declared void.

3. As to your previous question of how to get a copy of the marriage certificate when the parties do not remember the date of the wedding, I suggest that they apply for a CENOMAR. If their marriage certificate is on file with the NSO, then the it will issue a document stating that there is already a marriage certificate on its file. From there, they can determine the date of their wedding.

Anonymous said...

hi!
i just want to know if kids that are born on the year 2003 is also entitled to use my fathers surname. If not and the kid is using it, is there a legal way to not make them use it. According to my father, he didnt sign any documents. If my mother finds out that they forge my father's signature, what will we do and gonna be sued. I will appreciate if you can give us any idea about this problem.

Atty. Gerry T. Galacio said...

As a rule, laws are prospective in nature, that is, they should not be given any retroactive effects. However, RA 9255 which took effect in March 19, 2004 repealed, or modified Article 176.

The Implementing Rules and Regulations of RA 9255 expressly state that the law applies to all illegitimate children born before or after it became effective. Thus, even if the child you are referring to was born in 2003, then RA 9255 will apply.

However, since as you say that your father never signed any document, then your father can file the proper petition to question the use of his surname. This is provided for by RA 9255 when it states that “The father has the right to institute an action before the regular courts to prove non-filiation during his lifetime.”

Rosy said...

good day!

Hi! i would just like to ask a few questions actualy it's not mine, she works for us for about quite sometime and a relative of my mother-in-law. She would like to know if she can claim from the property of her stepmom, the story was kind of confusing and all but i hope you can help her...,her mother and father were legally married, 2 sons 3 daughters but then her mother died his father found another woman to be with but never married the woman, the woman has a son and they lived as family and adopted a daughter. The property was said to be given by the government to the people in Breakwater,Dasmarinas, Cavite. The property then was placed under her stepmom's name that time her father and her stepmom are living together for couple of yrs. Does she and the rest of her siblings aside from the only son of her stepmom has the right to claim the property? Coz both the father and the stepmom are now deceased...what will happen to the property? .... tnx so much....

Atty. Gerry T. Galacio said...

Since the father and the stepmom were not married, then Article 147 of the Family Code applies. Please surf to my Family Matters website for this article. She together with her siblings can claim that this property in Breakwater, Dasmarinas, Cavite belonged not only to the stepmom but also to their father (on the basis of Article 147). They should contact the government agency involved so that they can file their claim or ask for its intervention or mediation so that the title (if any) or the records can state that they are also the heirs, besides the only son of the stepmom.

Rosy said...

Thank u so much Atty. Galacio for the help i appreciate that very much she is so happy to know all about this, she and her children are very worried thinking they're going to live elsewhere...one last question though...what if ther property still has a balance of 8,000 i think it's a housing project, as i have told you before under the name of her stepmom, do they still need to pay for the balance? isn't it treated as fully paid coz the owner past away 5 yrs ago? They really dn't have much money just enough for them to survive the everyday expenses sometimes almost not enough...but you've been a great help for them they want to extend their deepest gratitude...god bless.....tnx so much

Atty. Gerry T. Galacio said...

With government land or housing programs like CMP (Community Mortgage Program) or LTAP (Land Tenure Acquisition Program), there is a provision that once the registered beneficiary dies, then the heirs automatically own the property without need of paying whatever balance there is. Please check with the particular government agency that is in charge of that program in Breakwater Dasmarinas. Or if they have a copy of the award certificate, they can check the provisions (under Terms and Conditions) of that award.

Anonymous said...

Hi Atty. Is it possible to create a legal paper in which states that the father of my child can have no claim of my child forever? The father is not willing to support as of now, but I'm afraid that he will come after us after I give birth. I don't want to have anything to do with the father anymore. Also, is it possible to leave the father's details in the birth certificate blank? My child will be using my surname. Your help will be greatly appreciated.

Anonymous said...

Hi Atty. I have a question. My brother impregnated 2 women only 1 month apart. Meaning, girl 1 gave birth 1 month earlier than girl 2, and my brother gave consent to those 2 women for their kids to use his surname. Now he's getting married with girl 1 which is his real GF. Here are my questions sir:

1. Kid 1 will be legitimated since her parents will be married?

2. Do they need to file anything after the wedding to legitimate their child? where?

3. What are the rights of woman 2? rights of kid 2? My brother gives financial support to kid 2 but unable to physically visit the kid 2 by his own choice to prioritize e woman 1 and kid 1.

4. Can woman 2 sue my brother for not physically going there?

5. Can woman 1 or my brother sue or put a restraining order to woman 2 since she's harassing and making up stories to ruin their relationship.

6. Is it possible by law that a third party will act as a bridge or communicator between my brother and woman 2 to avoid further issues?



Thank you so much!

Atty. Gerry T. Galacio said...

1. If you and the man are married, then such document will not be valid. The Family Code provides that parental authority cannot be renounced, waived or transferred except as authorized by law (for example in adoption).

2. If you and the man are not married, then such a document is not necessary. The child will be illegitimate and under Article 176 FC, parental authority belongs to you.

Just make sure that when you are about to give birth, tell the hospital staff or the midwife explicitly NOT to allow the man to sign the back of your baby’s birth certificate. If the man is able to sign the birth certificate, then under RA 9255, the baby’s surname will automatically be that of the man. (The baby will still be illegitimate however even if the surname of the man is used.)

3. If the man is harassing you, then you can ask the Family Court to issue a Protection Order so that he will be ordered not to contact you in any way and to stay away from you. Please read my articles on RA 9262 especially on Protection Orders.

Anonymous said...

Good Morning Sir. I'm not sure if you're post was for my questions, but here they are again. Thanks in advance!

_____________________


Hi Atty. I have a couple of questions. My brother impregnated 2 women only 1 month apart. Meaning, girl 1 gave birth 1 month earlier than girl 2, and my brother gave consent to those 2 women for their kids to use his surname. Now he's getting married with girl 1. Here are my questions sir:

1. Kid 1 will be legitimated since her parents will be married?

2. Do they need to file anything after the wedding to legitimate their child? where?

3. What are the rights of woman 2? rights of kid 2? My brother gives financial support to kid 2 but unable to physically visit the kid 2 by his own choice to prioritize woman 1 and kid 1.

4. Can woman 2 sue my brother for not physically going there?

5. Can woman 1 or my brother sue or put a restraining order to woman 2 since she's harassing and making up stories to ruin their relationship.

6. Is it possible by law that a third party will act as a bridge or communicator between my brother and woman 2 to avoid further issues?



Thank you so much!

Atty. Gerry T. Galacio said...

1. Legitimation is covered by Articles 177 to 182 of the Family Code. If the requirements are complied with, then the child can be legitimated.

The application and documents for legitimation must be filed with the Local Civil Registrar that issued the birth certificate. Please surf to the NSO website at www.census.gov.ph for the requirements for legitimation. It might be possible to apply for legitimation online.

2. Your brother will be in a lot of trouble if Woman 2 files a case against him using RA 9262 “Anti-Violence Against Women and their Children Act of 2004”. Woman 2 can file a civil case for damages, or a criminal case (with penalties ranging from four years imprisonment up to twelve years) or a petition for Protection Order against your brother.

3. It is possible that a third party will act as a bridge or communicator between yur brother and Woman 2 to avoid further issues. However, that third party must NOT be a government official or employee (like barangay officials, police officers, DSWD workers, etc). Please read my article “Mediation not allowed in domestic violence cases (with apologies to Pia Guanio)” at

http://-salt-and-light-.blogspot.com/2006/08/mediation-not-allowed-in-domestic.html

single mom said...

Hi Sir!

I have been searching for someone who can specifically address my issues. I am a single parent of a 4 year old daughter. Her father signed the birth certificate but my daughter uses my family name. Now the father provides Php 1000 monthly, which I still constantly reminds coz he always gives it a month late. We didn't have any physical agreement of the amount to give but he seems to take it as enough for his daughter. Also, he doesn;t spend time with our daughter. He is a medrep who probably receives 20K monthly. He has 2 other younger kids (but unmarried and separated with the mother).

-Can you suggest on how I can possibly get more financial support from him?

-Would it do good if I report it to his company and demand a monthly deduction from his salary to avoid delay of payment?

Thank you and more power to your blog! With your kindness and knowledge, you are helping a lot of people....

Atty. Gerry T. Galacio said...

single mom,

Please read my article “Support for abandoned woman and family” also in this blog. Look for the link in the sidebar.

I also have free downloadable PDF newsletter on support from my Family Matters website. Use this link:

http://familymatters.org.ph/PDF newsletters/Legal issues and family matters number 004 July 31 2008.pdf

Essentially, through a petition for a Protection Order under RA 9262, the judge will compel the man and his employer to remit to you directly on a monthly basis a certain percentage of his salary. If he and his employer fail to do so, they can be held in contempt of court.

Note: as to the issue of your child’s surname, please read my article “What’s in a name? Problems with RA 9255 and its IRR” dated July 14, 2008.

Cindy said...

Hello Atty.
I'm separated from my husband for almost 5yrs now.We have a son who is now in grade school.I was able to get a monthly child support from him, unfortunately he lost his job this month.
My husband lives with someone else and they have 2 kids.Atty my question is how can I compel for him to give child support? I have learned that his mistress holds a high position and receives a big salary.My husband for all I know doesnt have any property or any other asset.
I am only interested with child support, if i'm going to petition for a protection order will I be able to get financial support even if he doesnt have a job?Is it possible for him to get it from his mistress?
Thank you.

Atty. Gerry T. Galacio said...

A Protection Order is useless if the respondent (the person against whom the petition is filed) does not have work, income or property. You cannot oblige your husband’s mistress to answer for your husband’s obligations.

You should coordinate with other single parents so you can petition Congress and the Senate to increase the benefits provided by our Solo Parents Welfare Law. One proposal is to grant single parents benefits similar to those enjoyed by senior citizens.

Anonymous said...

Hi Atty.

A year ago I bore a child with my live-in boyfriend. My child used the father's surname in the birth certificate. Now, I am separated from my boyfriend and I want my child not to use her father's surname. What legal procedure shall i resort to? A friend suggested adoption procedures. Is that right even if i'm the mother of my child? Thank you.

Atty. Gerry T. Galacio said...

Please read my post “What surname should illegitimate children use? Problems and issues with RA 9255 and its implementing guidelines” dated July 14, 2008.

Anonymous said...

If my husband does not want to work anymore no matter how i try to persuade him to find a job and i'm the only one working to death,, he has this hobby of taking care of pigeons and doves and can't leave them to find a permanent job,that is why he does not want to work. Can I sue him or can i file a legal separation?-anonymous

Anonymous said...

Hi Atty.
Good Day!
I am a single mother, I have a 2 years old kid. We separated with my live in partner a year and half. And my kid using the surname of my kid's father. I want to know if the full custody of my kid is with me. I have a partner now and he is the one supporting our financial needs because before 4 or 5 months ago my kid's father supporting us financially but he stopped when he knew about my boyfriend but from the starts of our relation we have a verbal agreement that if i found the man i want to be with and can marry me, he will allow me because he is not allowed to marry me because he still married. My only concern is i want my full custody of my kid even my kid using the surname of the biological father. And I want to know if we can adopt my kid after the marriage of my current partner now because he want to adopt my kid and it is possible for us to leave the country without the consent of the biological father of my kid? We need to get married first before we adopt my kid? Please help me I want to know the possibility if we can go out the country without his consent because my child is still illegitimate even he acknowledged my kid, and i want to know if my kid the full custody is with me ane when or where or how i can get the papers to make myself have a full custody to my kid. Please help me.
Thank you and more power. You help me a lot.

Thanks,

Chrystal

Atty. Gerry T. Galacio said...

Article 55 of the Family Code enumerates the grounds for legal separation. A husband’s refusal to work is not one of the grounds. However, you can sue your husband under RA 9262’s provisions on psychological violence or economic abuse. Please read my posts on RA 9262 in this blog. Look for the links in the sidebar.

Atty. Gerry T. Galacio said...

Chrystal,

1. Please read my July 14, 2008 post in this blog entitled “What surname should illegitimate children use? Problems and issues with RA 9255 and its implementing guidelines.” As I discussed in that post, your child is illegitimate even though the surname is that of the biological father. Under Article 176 of the Family Code, parental authority (which necessarily includes custody) belongs to you. You do not need any paper or docunment to have full custody; the FC already states that you as the mother has parental authority and custody.

2. Please surf to the DSWD website for the amended rules on travel clearances for minors. Since the child is illegitimate, there is usually no problem with bringing the child out of the country.

3. Please read my post entitled “Procedures in adoption under RA 8552”. Look for the link in the sidebar. You have to get married first before adoption can be filed. However, if you leave the Philippines, you will have a problem since the petition for adoption must be filed here (since your child is a Filipino citizen). But if you and the child go abroad and later on become citizens of another country, then adoption can take place there under the laws of that country.

Anonymous said...

Good day!
Its a follow up question last July 29, 2008. It is possible for the father of my kid that he can sue me if we can get out of the country without his consent? because we planning to go out of the country for 3 months and i'm worried if its possible for him to file me a kidnapping case if we leave without consent. But if i ask his consent for sure he cannot allow it or maybe he can ask money to sign the papers. Please help me about my follow up question because i'm worried. Thank you very much and more power to your site.
Thanks,

Chrystal

Anonymous said...

Good Morning Sir,

Just a follow up question on my previous post last July 10 about my borther's case. I'm quite confused on to what questions did you answer.

You said:


2.) Your brother will be in a lot of trouble if Woman 2 files a case against him using RA 9262 “Anti-Violence Against Women and their Children Act of 2004”. Woman 2 can file a civil case for damages, or a criminal case (with penalties ranging from four years imprisonment up to twelve years) or a petition for Protection Order against your brother. = Why /How coul Woman 2 file a case for my brother? Can not physically visiting the kid be a ground for a civil case or criminal case under RA 9262


And Sir, I was asking if WOman 1 or my brother sue woman 2 for harassing woman 1 or just by merely provoking them to fight or creates stories to ruin the reputation of the couple?


Thank you!

Atty. Gerry T. Galacio said...

Chrystal,

If you are able to get a Protection Order under RA 9262 from the court to regain custody of your illegitimate child, then a charge of kidnapping will not prosper legally. You need to retain the services of a lawyer who will help you get a Protection Order and help you get the travel clearance.

Atty. Gerry T. Galacio said...

I did a shortcut in my answer.

Of course, Woman 1 and your brother can file the appropriate cases against Woman 2.

But if Woman 2 files a case against your brother using RA 9262 “Anti-Violence Against Women and their Children Act of 2004, then your brother will be in a lot of trouble.

Hannah said...

Hello Atty.
Few months ago my partner and his legal wife made an agreement on child support at the PAO office. They have one child, my partner and I already have one child and I'm about to give birth to our second child.The shares have been equally devided bet my parner,his legit child, our child.
According to my partner the lawyer(PAO) told him that our unborn child is not yet entitled to any child support until he is born.
Atty is that fair and true?
What should we do to change the agreement after our second child is born so that he can also have a child support from my partner?
Please help.Thank you.

Anonymous said...

I chanced upon ur blog while searching for possible legal answers to my query.

I have an 8 year old child who carries my surname.. her biological father and i were never married but he had signed the paternity acknowledgment at the back of her birth cert. We broke up when my daughter was barely 2years old, and he has not stood up to his responsibility with our daughter. I singlehandedly shouldered all of my kid's expenses and needs. He shows no effort to see the kid or to check how she is. Now, I am in a relationship with a very responsible man who loves my daughter just as much. We plan to get married next year, he wants to change my daughter's surname to his. QUestions:

1) Do we still have to undergo adoption to be able to change my daughter's surname?

2) Do i need the CONSENT of her irresponsible biological father if ever my hubby-to-be wants to adopt my daughter?

3) How long does the adoption proceedings last? is it expensive?

thanks so much!

Atty. Gerry T. Galacio said...

Please read my post entitled Procedures in adoption under RA 8552 in this blog. Look for the link in the sidebar.

Adoption is necessary not just to change your daughter’s surname but so that (a) your relationship with your daughter will become legitimate; and (b) your husband will have parental authority over your daughter.

2. RA 8552 states the following:

Sec. 9. Whose Consent is Necessary to the Adoption. — After being properly counseled and informed of his/her right to give or withhold his/her approval of the adoption, the written consent of the following to the adoption is hereby required:

(a) The adoptee, if ten (10) years of age or over;

(b) The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child;


In adoption proceedings, the court’s paramount consideration is the welfare of the child. Even if the biological father does not give his consent, the social worker who conducts the case study and the home visit and the court are both inclined to give a favorable recommendation and decision with regards the adoption.

For ore information, you can talk to any social worker of the Family Courts in your city. If you are from Metro Manila, you can go the DSWD office in Mendiola, Manila near NTC and CEU and ask for more information there.

The expenses for adoption proceedings are (a) the lawyer’s professional fee which in Metro Manila averages fifty thousand pesos, and the lawyer’s appearance fee per hearing which runs from one thousand five hundred to two thousand pesos; (b) docket fee or filing fee; (c) publication in a newspaper once a week for three weeks of the court’s order setting the case for initial hearing; (d) service of summons fee for the court sheriff or process server; (e) transcripts of stenographic notes; etc.

More or less, you can expect to spend one hundred thousand pesos for the adoption. If you are from the province, the expenses especially that of the lawyer’s fee will be considerably lower.

Anonymous said...

Good day Atty. Galacio,
One of my friend told me to right you, because helped her problem.
I want to ask something from you, I have a daughter almost 2 years of age and she using her father's surname, we are not married because I found out that he have a family, after we broke up 4 months ago and he got all the stuff and aplliances we bought during the time that we lived together and he stopped supporting my daughter and stopped seing with her. I have a partner now and his a foreigner and now he supporting our needs and we plan to get married, and my partner now help and supporting my daughters needs.. My worried is if we plan to get out of the country I will need his consent? I dont want to ask any help from him because i have own job, I only want to know if i can force him to sign the consent papers if ever I will need his consent for my daughter when we leave the country? before he told to my sister that he can sue me or his wife will sue me because i lived with him and he messaged me a bad words but i ignored all of it, I only want to know is it is possible for him to sue me? Please I need your help. Thank you and more power.
Godbless.
Asley

Atty. Gerry T. Galacio said...

Asley,

1. Your child is illegitimate and so under Article 176, parental authority belongs to you (that includes custody). Even if your child is using the surname of her biological father under RA 9255, she is still illegitimate and still under your parental authority. Please download my free PDF newsletter on this topic from my Family Matters website.

2. Please surf to the DSWD website for the amended rules on travel clearance for minors. Since your child is illegitimate, there will not be much of a problem in getting a travel clearance for her. The DSWD office which processes travel clearances is located behind PWU and PCU in Taft Avenue (Malvar St. I think).

3. You are the offended party since you did not know that he was married. For his wife to file a case (like concubinage) against you, she is required to charge her husband also. Please read my article on “Adultery, concubinage, psychological violence” also in this blog. Look for the link in the sidebar. I also have a free PDF newsletter on this topic in my Family Matters website.

Because of his verbal threats, you can charge that man for psychological violence under RA 9262. The minimum penalty is six years imprisonment.

Anonymous said...

i hope im not double posting.

Atty. i have this problem bout the surname im using. i was legit child but my parent seperate long ago. when i was in grade1 i'm using " Ydia " <- my fathers surname but when i was about to enter grade2 my mother told me to use the surname of my step father instead and ofcourse i obeyed. i graduated highschool using the surname of my stepfather and i have my diploma to prove it but now i have this problem, i want to apply for a passport but ofcourse we all know that it requires birthcertificate/I.Ds. I have my NSO birthcertificate w/ me ofcourse my name having my real fathers surname but all my ID and diploma/form 137 has my name using my stepfathers surname. What should I do? i need to get a passport but all i have is a NSO birthcertificate and dont have a I.Ds or any other supporting document to be use as rewuirements in DFA.. what is the right thing to do? i'm sorry for my bad english<< pwede ba magtagalog sa blog na to? =) I'm so happy i found this blog.. this is realy helpful.. thankyou Atty. hope you can help me too..

jeff from cavite

Atty. Gerry T. Galacio said...

Jeff,

1. The usual problem is that there are errors to be corrected in the birth certificate. The remedy for that is either Rule 108 of the Rules of Court or in case of clerical errors / change of first name, the Guinigundo Law.

2. In your case however, the problem is not with your birth certificate but with your school records. Try to ask the DFA if they will accept what is known as Affidavit of Rectification and Identification. In this affidavit, you will explain the problem in the discrepancies of your birth certificate and school records. You also need to include the affidavit of two or more disinterested parties (meaning those who are not related to you) who have known you while you were still a kid to verify your identity and to explain the discrepancy. You can ask any notary-public to draft this Affidavit of Rectification and identification for you.

Jeoffrey said...

Atty good day!
Both of my illegitimate children are using my surname. I am going to work abroad and I've been told that I can petition my family after 6months.
I want to include my 2 illegitimate children in my petition, by law I know that they are under the custody of their mother specially that they are minors.
What are the procedures and steps that I should do so that i can petition them.I want to know before I leave so I can prepare any necessary documents.
Thank you.

PaRaLLeL said...

Hi good day sir..
My mom recently found out that my dad was having an affair with another woman. This woman got pregnant and gave birth to the child a couple of months ago. My dad said he was forced to claim the child (Signed the birth cert. and everything), so therefore the child is considered illegitimate.
1. How can we file a petition to "UNFILE" the child as Illegitimate?

Mom and Dad are in good terms already, but during those times my mom is still trying to find out that my dad's having an affair, the other woman texted and threatened to kill or hurt us.
1. If those texts were already deleted, can we still file a case against her?

With this woman trying to make our lives miserable and everything, mom got so scared. And as a result, she prevents my dad to provide support with the said child.
1. If there's really nothing we can do to "UNFILE" illegitimacy over the child, how can my dad legally "NOT" provide support for the child?
a. Dad works as a contractor for houses he builds and more likely earn decent money just for his family (Us). Dad has his own company under his name. If the company is gonna be filed under Me and my Mom's name, and my dad will just serve as an employee of the said company, will the child still receive support like we get? Or it will just depend on how much money my dad can earn with his salary from the company.
b. Mom decided to put all property names under Mine and Hers, in that case can the child still claim inheritance? What if it's put under a different name like (Aunt, Relatives, or whomever) Can the child still have claims?

Thanks and hoping for your legal advice.

Atty. Gerry T. Galacio said...

Jeoffrey,

Even if your children are using your surname, they are still illegitimate. Under Article 176 of the Family Code, illegitimate children are under the SOLE parental authority of the mother.

I am assuming that you only want to petition your two kids and not their biological mother. In this case, there is no way you can get these children out of the country or include them in your petition.

The only way is for you to file a petition in court for the termination of the mother’s parental authority over the kids and for such authority to be given to you. But as you can read from my post titled ”Can a mother be deprived of custody of her child?” (look for the link in the sidebar) it will be a very, very difficult thing for you to get such parental authority.

Atty. Gerry T. Galacio said...

PaRaLLeL,

1. Under Article 176, however, it is provided that ”the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. Please take note that it is your father and not you or your mother who must file this case in court.

2. Article 176 also provides that illegitimate children are entitled to support and to inheritance. Please download my article on support from my Family Matters website titled “Issue no. 004 July 31, 2008 "Financial support for abandoned woman and her children".”

Please follow this link:
http://www.familymatters.org.ph/PDF newsletters/Legal issues and family matters number 004 July 31 2008.pdf

3. You can of course file the appropriate civil or criminal cases against your father’s mistress. You need evidence however to prove your claims. The text messages would have been considered as good evidence.

Please take note however that your father’s mistress can file civil and criminal cases against your father under RA 9262. Please read my posts on RA 9262 in this blog (look for the links in the sidebar). The penalty for psychological violence (which covers a wide ground and which can be used by a mistress, a girlfriend, etc) is a minimum of six years imprisonment. For economic abuse (which includes failure to give proper support) the penalty is four years imprisonment.

4. With your questions as to transferring titles or registration of properties, I am sorry but I cannot counsel you on that. It will be legally, ethically and Biblically wrong for me to counsel you on how to evade what may be valid and legal claims against what your father is responsible for.

Anonymous said...

Good day sir! I am an illegitimate son to a married man. I would kindly ask if there would be any possibilities that my father wouldnt give me any of his inherited share according to another law or even his own will. Im looking forward for your answer. Thank You!

JL said...

Good day sir! I am an illegitimate son to a married man. I would kindly ask if there would be any possibilities that my father wouldnt give me any of his inherited share according to another law or even his own will. Im looking forward for your answer. Thank You!

Atty. Gerry T. Galacio said...

JL,

Under Article 176 of the Family Code, illegitimate children are entitled to inherit from their biological parents. The share in the inheritance (called legitime) is one half of whatever a legitimate child gets.

The only way by which you can be deprived of your inheritance is if and when your father disinherits you. Please read my post titled “Disinheriting children and descendants, legitimate as well as illegitimate”. Look for the link in the sidebar. Please take note however that the legal requirements for disinheritance are very strict. If the requirements are not complied with, then the disinheritance becomes invalid.

Jeoffrey said...

Atty thank you for the response,just a follow up to my post last Aug 24. I am very much aware that my children are under their mother's sole custody and care. I am very lucky enough that my former partner and I are in good terms and share mutual respect. I am able to see my children anytime and be with them anytime. I talked to my former partner and discussed to her my plan to petition our children, and she agreed. Atty what should we do to forego this plans. Is her consent enough? Any other documents needed?
Thank you in advance for the advice.

Atty. Gerry T. Galacio said...

Jeoffrey,

Your partner’s consent is NOT enough. Article 210 of the Family Code states that ”Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law.”

Guardianship may be a viable legal option for you as you can see from the Supreme Court Rule on Guardianship (there is a copy under the Legal Procedures section of www.familymatters.org.ph).

Since your chulden will be living with you in another country, the best option for you however is adoption under RA 8552. Please read my post in this blog titled “Procedures in adoption under RA 8552>”

Anonymous said...

Hi Attorney!

I am a single mother of a 3 month
old son. His father is married to
another woman and is still processing his annulment but he did sign the birth certificate as well as the AUSF (Affidavit to Use the Surname of the Father) but my son uses my family name since my mom insisted on it and it is also what is indicated on the birth certificate.

However, the baby's father now wants our baby to use his surname. Is it possible then to change the family name of my son to that of his fathers 2 months from now and how should i go about it?

I would really appreciate your help regarding this matter. Thanks!

Atty. Gerry T. Galacio said...

Please read my post on this blog on the issue of what surname an illegitimate child should use. Or you can download a free PDF newsletter on this topic. You can use this link:

http://www.familymatters.org.ph/PDF newsletters/Legal issues and family matters number 005 August 15 2008.pdf

If you had given birth in a hospital, the father’s surname would have (or should have) been used automatically in the birth certificate. This is because the hospital staff are familiar with the NSO guidelines for Ra 9255.Anyway, since the birth certificate had been signed and an AUSF has been issued, you just simply have to coordinate with the Local Civil Registrar of your child’s birthplace to work things out.

JL said...

I have received your answer and I very much appreciated it atty. Thank You. I have another question sir. Im not sure if my fathers family dont know that i am an illegitimate son of his, but what if he didnt state my name in his last will for inheritance? Would that mean that I couldnt inherit any of his legitime? Thanks in advance atty and Godbless!

Atty. Gerry T. Galacio said...

JL,

You must be able to establish your illegitimate status under Article 175 in relation to Article 172 of the Family Code. If not, you will not be able to inherit from your biological father.

Anonymous said...

hi atty...I jst would like to ask, my friend was being married to a foreigner almost 3 years...they live in america and now they are here in pinas to setlle hteir life then his husband liv e with other girl...So what should be the legal rights of my friend since they got married in america,..and he abandon my friend and his one daughther..so if whatever will happen with her husband..what should be the claim of my friend since the marriage took place in america..please help tnaks and more power!

Atty. Gerry T. Galacio said...

1. The Family Code rule on marriages done outside the Philippines is lex loci celebrationis meaning, if the marriage is valid in the place where it was solemnized, then it is valid here in the Philippines (with some exceptions like marriage below 18 or incestuous marriages). So assuming that the marriage is valid in the US, then it is also considered valid here in the Philippines.

2. If your friend and the child have already become US citizens, then they can request for help from the US embassy here.

3. Your friend can avail of the benefits and protection provided by RA 9262 Anti-Violence Against Women and their Children Act of 2004. Please read my posts about RA 9262 in this blog (look for the links in the sidebar).

Anonymous said...

Follow-up question atty..wth my blog last sept 13..about my friend, no its only the child who is the US citizen..she did not stayed their for 5 years but she has a greencard for two years..she cant go back anymore to the state because she's unstable for now and the man are being together with the girl til now.So its hard for her, he send some money sometime but it cannot compensate with all of the expenses..She's at mess now because the man seems so happy with his mistress...thanks and Godbless

Anonymous said...

Good day Atty.
I am living with a married man abroad and we have 2 children. The children are of schooling age and they are using their father's surname on all official documents (foreign passport, school papers, etc). Their birth certificates (in the country where they were born) shows the father's surname. I would like to report their birth to the Philippine embassy but the Philippine consul refuses to place the father's surname, as she said the law states that as illegitimate children, they should carry the mother's surname. She insisted that even if an affidavit is drawn up to show the father's consent, the Philippine law would not allow it. She insisted that the law recognizing the father's surname for illegitimate children had already been changed and she can't do anything about it. What can I do (or what papers can I show the Philippine Consul) to make her consider using the father's surname? I sent them an e-mail but they have not answered me. Can I file their birth certificates through the Philippine embassy using my surname, then later amend it using the father's surname? I am really, really worried about this, please help me.

Atty. Gerry T. Galacio said...

The consul may not be aware of RA 9255 which amended Article 176 of the Family Code. Under this law, illegitimate children are allowed to use the surname of their biological father if (1) the father signs the birth certificate) or (2) the father executes what is known as AUSF or Affidavit to Use the Surname of the Father.

What you can do is to communicate with the Legal Department of the National Statistics Office and ask for its legal opinion regarding your situation. You can then submit to the consul this NSO legal opinion.

Please also surf to the NSO website www.census.gov.ph so you can read the Implementing Guidelines for RA 9255. The NSO also has its e-census system where you might be able to file the birth certificates via the Internet.

Please also read my article entitled What surname should illegitimate children use? Problems and issues with RA 9255 and its implementing guidelines OR download my free PDF newsletter on this topic from my website www.familymatters.org.ph

Anonymous said...

attorney:
i am a legitimate daughter however my mom died 4yrs ago now and my father is living his own life with a married girl younger than me - this unfortunately has been a source of dispute between me and my father. i cannot say we are well off but we are not poverty stricken as well - in fact my father is an editor in a well known broadsheet publication - and for the longest time i have not consulted friends my prob with my father because of shame. But because of his disinterest in helping me financially and emotionally - he has continued his aloofness towards me until i heard about some of our properties now belonging to this and that person - my question is - am i not entitled as an heir to my mother? he keeps stressing to me that he is the one responsible in buying this and that property etc and that he can do whatever with it - that i should wait for him to die - my worry is if he does die - i really have no idea on whatever else properties he has accumulated - all i have stressed from him is that he wish to live with this girl who is clearly milking him money right now - he might as well give me my share as heir to my mom - and we do not have to communicate anymore coz i am very much against that relationship - pls clarify - i am entitled now 25% of whatever property right? and that i have the right to claim them now.

Atty. Gerry T. Galacio said...

1. You did not indicate as to when your parents got married. If they got married after August 1988, then the Family Code is the prevailing law between them and the default system of property relations between your parents is absolute community of property (ACP). If your parents got married before August 1988, then they were governed by the New Civil Code of the Philippines and the default system of property relations is conjugal partnership of gains (CPG).

2. When your mother died, there should have been a settlement of her estate. Meaning, you and your father (assuming you are the only heirs) should have undertaken either a judicial settlement of her estate OR by simply going to a notary public for an extrajudicial settlement.

Assuming you and your father are the only heirs, the sharing according to the New Civil Code of the Philippines (please surf to www.familymatters.org.ph) is that 50% goes to your father as his share in the community property (I am assuming here ACP). Then the remaining 50% will be divided between you and your father. Meaning, out of the 50%, you are entitled to 25%. When? As of the time your mother died.

3. This may be the law which is beneficial to you. However as things and time go on, it will become more and more difficult for you to claim any of the properties or share in the inheritance that rightfully belongs to you. You should even NOW obtain the services of a lawyer to protect your rights. Please take note that the FC provides that before you can file a case in court, there must be earnest efforts at a compromise (since the case involves family members). Your lawyer can help you in this.

Also, you can ask your lawyer to help you avoid filing a case in court by availing of the services of the Office for ADR (Alternative Dispute Resolution) of the Department of Justice created under RA 9285 (there is copy in my Family Matters website). ADR involves mediation, conciliation, arbitration, etc and is supposed to look for win-win solutions for all parties involved.

If ADR fails, then you have no choice but to go to court. The good thing is that even if the case is filed, court-referred mediation is still available for you and your father.

Anonymous said...

thanks so much - my parents have been married way before aug1988 for sure i am now 38 years old & still single - i have been thru many legal counsels for consults and have been adviced the same thing - i just cannot afford a lawyer right now and thru a friend i was able to obtain one early this year and my father signed an extra judicial where it states the chosen properties will be turned over to me - as to date i followed up this particular property which is being rented out - i was following up with him when i can be able to use it coz i wanted to put up a convenient store in that area - apparently he snapped and reminded me that i was just his daughter blah blah blah that i have no right whatsoever to dictate him this and that - but earlier this year he knew about my plans and yet he leased it again for another year - my mom died 2004 of april and i found out the affair he was having with this lady much younger than me dec of the same year. he has a good paying job for sure and i know his business is also doing well - i just do not understand why he is stalling me - i have a surviving business but whatever i can get hopefully from this settlement i want to push my business more - in front of the lawyer he talks like he cares about me that he will help me blah blah - but on the contrary - i tried to keep my self busy this year coz i need the income to survive so i kind of put aside my conflict with my dad - until this event again transpired and i am losing my patience with him coz am not getting any younger - i do not intend to wait for him to die - all i want is to take my share now - since he has opted to live like a bachelor without any efforts to even say hi to me - i really do not know where to start - but do i definitely have a good chance? coz i will definitely have to save up for a good lawyer coz my father is well connected with people in politics. can you help recommend a lawyer? i don't mind working with one that can work on commission thanks so much

Anonymous said...

Hello Atty,
My sister and I are illegitimate children I am 19 and my sis is 17.My parents have been together for 19yrs. My dad is now very sick, the last time we talked he told us that my sis and I are his beneficiaries in SSS and others.He also wanted that in case he dies he wants us to take care of his remains.He plans to make a last will and testament which indicates his wishes.
Since he is legally married and has a legit son, I would like to ask where do we legally stand in all of these, his assets,remains and all.
We dont want to claim everything since we know that truth.
If he does execute a last will and testament indicating us as his heirs will it be legally binding?
I just want to know our rights, bec we also respect the rights of our half brother.
Thank you.

Atty. Gerry T. Galacio said...

I cannot recommend a lawyer openly through this blog. You need to e-mail me so I can give you some names.

You can ask the lawyer if he or she is willing to enter into what is called contingent fee basis, meaning the lawyer gets paid only in case he or she wins the case. The lawyer then gets paid a certain percentage of whatever amount is awarded by the court. Sometimes lawyers will charge an appearance fee even if they agree to a contingent fee basis. The percentage varies from lawyer to lawyer.

Atty. Gerry T. Galacio said...

Even if your biological father does not execute a last will and testament, your rights are protected by Article 176 of the Family Code. By express provision of the law, you and your sister are entitled to 50% of whatever the share is of your half-brother.

If there are lands (titled properties) in your father’s estate, it is much better if he does not make a last will and testament. Under our laws on last will and testament, the will must be probated (approved by the court) if real properties are involved. A probate proceeding will take time and delay the disposition of your father’s estate.

If there is no last will and testament AND there is no conflict among you, your sister and your half-brother, then you can just enter into an extra-judicial settlement. Please read my December 7, 2005 post about extra-judicial settlement.

With regards your mother, she is covered by Articles 147 or 148 of the Family Code.

Anonymous said...

Dear Atty. Galacio,

I thank you for providing this free advise site. This is really a lot of help.

My case is quite similar to the previous case. My parents were married in 1980. My mom died in 2004 and my father re-married an ex-girlfriend who resides in the states. However, my father was also having an affair with a younger woman at that time which was discovered by my step mom. So they separated immediately, they didn't even get a chance to live together as a married couple.
Now, my bros and I are living in the house built by mom & dad. Against our will, my father is living with us with her younger woman and their son. This is creating a lot of shame for our family. Everytime we try to ask him to make his woman leave, he always tells us that our house is HIS house and we have no right to tell him what to do. He tells us that we'll only have the house once he's dead.

I would like to know sir, is there something me and my bros could do to get her out of the house legally?? You've also mentioned in the past that concubinage is hard to prove, why is that??
Any advice you could give me will be very much appreciated.

Thank you in advance and more power to you.

from, ms. nice

Atty. Gerry T. Galacio said...

ms. nice,

1. Your father is wrong. When your mother died, her heirs (meaning, your father, you and your brothers) should have settled her estate or in simpler terms, divided her properties among yourselves. This could have been done (and can still be done) through either a judicial or extrajudicial settlement of estate. Please read my post on extrajudicial settlement )look for the link in the sidebar).

Since your mother died several years ago, you should immediately retain the services of a lawyer to protect your rights. If the estate tax on your mother’s properties has not been paid (the BIR must also have been notified within 30 days of your mother’s death), then penalties and surcharges will continue to accumulate. You just might lose all the shares you are entitled to just by paying the penalties.

To avoid the court litigation against your father, you and your brothers can seek the services of the Department of Justice Office for ADR (Alternative Dispute Resolution) created under Republic Act 9285.

2. RA 9262 applies to your situation. Please read my posts on RA 9262 (look for the links in the sidebar). Concubinage is not the issue here. Through a Protection Order under RA 9262, you can evict your father from the house even though it is titled in his name. But like I said, you should try to avoid litigation by resorting to ADR under RA 9285.

Anonymous said...

Hi Atty Gerry,


I know you can shed light on this one... it seems really complicated... I am an illegitimate child, My mom got pregnant when she was 21 yrs old, my mom and dad has been separated from then on... they were never married.. after 21 yrs,back in college... i was able to meet my father for the 1st time... we had spent time catching up on each others lives. anyway to cut it short... Here are the facts:

- in my birth certificate i use my mother's surname.

- my dad's name is stated in my birth certificate.

Though the problem is:

- in my lifetime i have used my father's surname, thus i have my dad's surname in all my personal identification documents including school, office and government records, in everything!

- so the surname stated in my birth certificate is different from what i am using and have been using. (for the reason as to how it happened, i could share to you privately)


My dad is residing in the US, he has migrated there in the 90s... we just met before because he took a vacation here for just a month or two. We have discussed about formally acknowledging me in papers etc. but was not acted upon due to time constraints since he had to go back to the US already. we also didnt have any constant communication since then, though i have contacts with his relatives here in the Phils.


My dilemma now is on how i can i have my NSO birth certificate amended and changed to my father's surname, since that was the one i have been using all my life. I have thought about it and decided to start acting on it because i know i wont be able to get a passport without submitting an authenticated NSO Birth certificate which i dont have and which if i do have would raise a question on my identity.


I know it sounds really complicated, how can we make it much simpler? how do i go about it? what are the things i need to do, what are the forms i need to submit etc.

I am now 25 years old and have plans of going abroad, though this problem really hampens me.


I believe you could provide me really valuable legal advice and adepth information, which would help me a lot since this issue has been a real burden to me.


Thank you nad God Bless you Atty Gerry.

Atty. Gerry T. Galacio said...

RA 9255 (also known as the Guinigundo Law) and the NSO implementing guidelines provide the very easy solution for your situation.

Previously, under Article 176, illegitimate children had to use the surname of the biological mother. RA 9255 however amended Article 176. Now, the illegitimate child can use the father’s surname if he signs the birth certificate or issues a public or private document acknowledging the child.

Under RA 9262 and the NSO implementing guidelines, all a father has to do is sign an AUSF (Affidavit To Use the Surname of Father) and then have this document submitted to the Local Civil Registrar.

Since your father had already signed your birth certificate, however, the NSO implementing guidelines provide for a RETROACTIVE EFFECT and the procedure for that effect. There will be no need for the AUSF. You just coordinate with the LCR or NSO.

Please read my article “What surname should illegitimate children use? Problems and issues with RA 9255 and its implementing guidelines” (look for the link in the sidebar) or download my free PDF newsletter from my Family Matters website.

Anonymous said...

Hi Atty,
My father died last 1995, we are the second family. My mother married my father he was a widow. The house that we lived in was his first wife and they were married long before 1988 so it is conjugal property, So when my father died does this house automatically should belong to my mother but the problem is my half sister let my father sign a paper that he sold the property to her and when he died she put in the death certificate that my mother was a deceased and she didn't get his pension (he was a school principal) can we fix this problem and my mother claim his pension and can we have share with that property? Please advise.
Another question...My brother died last 1994 and have i son and later his wife died also and she put someone as a guardian of my nephew and my brother and his wife have property 2 houses and his wife was collecting some benefits because my brother was a police for almost 15 years of service and now my nephew was only 7 yrs then and he is 16 yrs old but my mother want to petition her children and how can she include my nephew that she is not the guardian none of us as related to my nephew has to guardian to my nephew but he is staying with my elder sister but my sister didn't received any amount from his guardian. Can my mother in my nephew to her petition or she needs to adopt him or get a sole custody to my nephew. please advise. I am sorry for the english and too many questions. More power to you atty.

concern daughter

Atty. Gerry T. Galacio said...

concerned daughter,

When your father’s first wife died, her estate should have been settled (meaning, your father and the other legal heirs should have been given their share in the inheritance). When your father got married to your mother, under the law, the default system of property relations between them was complete separation of property.

If there was forgery or falsification in the documents you mentioned (pension), then you should take the proper steps. You should first inquire with the GSIS (if your father was a government employee) or ask for the help of a lawyer. The problem however is that it has been so long (from 1995 to 2008).

2. Article 210 of the Family Code states that parental authority cannot be renounced or transferred. That person whom your sister-in-law assigned as guardian may not therefore have any legal authority over the child.

What your mother should do are (1) file a petition for habeas corpus against that so-called guardian; or (2) file a petition for guardianship; or (3) directly and immediately file a petition for adoption.

I have posts on adoption in this blog (look for the link in the sidebar). As to guardianship, please surf to the Legal Procedures section of www.familymatters.org.ph

Anonymous said...

Hi Attorney Gelacio,

I understand that under the Family code I cannot simply change my surname without a court order. I also understand that the reason for the change should be very valid, valid enough not to arouse suspicion of an attempt to escape any criminal offence. Actually Atty I dont have any problem dealing with this, the problem is i have a very uncanny surname, quite hard to spell and pronounce and at times subject to ridicule by peers and other people. I'm alredy used to this as i have beend carrying this name for the last 32years, I'm more worried for my future childred, i dont want them to suffer (god forbid) the experience of being joked upon in school just because of their surname.

My questions are:

1. What is the chance the court will grant my petition for the change given my reason as stated bove?

2. How much will it cost me and how long will it take for the court to hear and answer my petition?

3. What will happen to my existing documents (passport, school and office records, etc) if the court will grant my petition?

4. I am getting married in 2 months and my wife will assume my current surname. If ever the court will grant my petition, will she have to undergo another process of name change?

Many thanks and hope to get your views on these soon.

Regards,

Nio

Anonymous said...

Hi Attorney Gelacio,

I understand that under the Family code I cannot simply change my surname without a court order. I also understand that the reason for the change should be very valid, valid enough not to arouse suspicion of an attempt to escape any criminal offence. Actually Atty I dont have any problem dealing with this, the problem is i have a very uncanny surname, quite hard to spell and pronounce and at times subject to ridicule by peers and other people. I'm alredy used to this as i have beend carrying this name for the last 32years, I'm more worried for my future childred, i dont want them to suffer (god forbid) the experience of being joked upon in school just because of their surname.

My questions are:

1. What is the chance the court will grant my petition for the change given my reason as stated bove?

2. How much will it cost me and how long will it take for the court to hear and answer my petition?

3. What will happen to my existing documents (passport, school and office records, etc) if the court will grant my petition?

4. I am getting married in 2 months and my wife will assume my current surname. If ever the court will grant my petition, will she have to undergo another process of name change?

Many thanks and hope to get your views on these soon.

Regards,

Nio

Atty. Gerry T. Galacio said...

Nio,

Rule 103 provides the remedy for your situation (there is a copy under the Legal Procedures section of www.familymatters.org.ph). Please take note that RA 9048 (Guinigundo Law) applies to correction of clerical errors in the birth certificate OR change in the FIRST name. In your case, you want to change your surname. Rule 103 precisely is the remedy.

As to cost, major expenses would be the professional fee of the lawyer you will retain, and the publication in a newspaper of the court order setting the case for initial hearing. Please do not be shy when bargaining, as it were, with a lawyer’s professional fee. As to the publication, however, you do not have a choice. The Office of the Clerk of Court conducts a raffle among accredited newspapers. If the Inquirer or Bulletin for example wins the raffle, you will be forced to pay higher (compared to smaller newspapers).

As to the problem of your impending marriage: The petition under Rule 103 will take about a year to finish. Thus your wife will carry your uncanny, hard to spell surname. What you can do is to file the Rule 103 petition AFTER your marriage. Your wife can then join you in filing the petition. This is to save time, money and effort. One other remedy is for you file for Rule 103, and when the court grants it, your wife can then file for Rule 108 (but this is time-consuming.)

The court’s order for the change in your surname affects only government records like birth certificates, other documents in the civil register (LCR, DFA, NSO, etc). As to your private documents (school records, diplomas, etc) the court does not have any jurisdiction to order these institutions to issue new documents reflecting your changed surname. When there is a question as to your private documents and your new documents, you can simply attach a copy of the court’s decision.

Anonymous said...

Hi,

I am a single mom of 5 yrs old child. His father signed the acknowledgement part of birth certificate. We parted our ways last 3 years ago and when he begun working in Singapore he only sent financial support twice.


His father now is a permanent residence of Singapore and married already.
Is there a chance for me to get financial support to him? Since I know some information from him or I can track him just in case if there is legal documents to be sent to him.
I read from here that Once a person live in other country he is not cover anymore with Philippine law . does it mean I cannot do anything to get support from him if there is ways will you please give me advice on how to do it or what organizations here in philippines can help me do that?

Atty. Gerry T. Galacio said...

As I discussed here, once the man comes back to the Philippines, you should immediately file a petition for Protection Order and at the same time ask the court to issue a Hold Departure Order. In the meantime, you can try to avail of whatever benefits are provided by our Solo Parents Welfare Law. Contact the DSWD in your town or city.

nio said...

Hi Attorney,

This concerns my first email to you regarding my plan to change my surname under Rule 103. First many thanks for answering my queries. Can you give me ball park figure how much would it cost us (lawyer's fee + publication assuming major daily etc) for the whole process? Thanks and hoping for your reply soon.

Nio

Atty. Gerry T. Galacio said...

Nio,

1. In Metro Manila, average acceptance fee of lawyers is from 35 to 50 thousand pesos, plus an appearance fee ranging from 1,500 to 3,000 pesos per hearing.

2. The publication costs for a major daily will probably range from 30 to 50 thousand (for the complete three weeks of publication and the notarized affidavit of publication). You can check with the advertising departments of these major dailies as to their rates for judicial notices.

Nio said...

Atty,

Many thanks again.At least I have an idea now on the cost. Just a few more questions, in this kind situation, how many times do we normally have to appear in court?and what is the likelihood the court will grant our petition to change our surname??

Regards,

Nio

Anonymous said...

Im 10 years older to my husband when we got married in 2000. We lived together for only 2 weeks, when I caught him with another woman ( with the consent of my in-laws). After that incident, my husband just disappeared. I called up my in-laws many, many times regarding my husband's whereabouts, and they said, they had no idea.

It's the most devastating part of my life and I thought I'd die. Thanks to my loving parents, I was able to pull thru with my life.

Up to this time, 8 years had passed, I still have not seen my husband. What's more painful, if I died, he will be sole beneficiary to my SSS benefits.

I want to move forward and claim the life and dignity I've lost. I don't have the money or resources to have our marriage annulled. How can I regain my name back? Is 8 years of separation with totally no commuication from my husband enough reason to have our marriage nulled & void?

Please help me, I have nobody and nothing to go to this kind of ordeal. Thank you very much! God bless you abundantly.

Atty. Gerry T. Galacio said...

Please read my post titled “If husband and wife have not seen each other for more than seven years, does it mean that their marriage is already void?” (look for the link in the sidebar).
In that post, I discussed the procedure in filing a petition for declaration of presumptive death for purposes of remarriage.

What you can do right now is to ask a COMPETENT lawyer-notary public to prepare document for the disinheritance of your husband. Please read my post titled “Disinheriting your spouse” (look for the link in the sidebar).

Besides disinheriting your husband, you should also file a petition for judicial separation of property under Articles 134 to 142 of the Family Code.

After you have disinherited your husband, file a copy of the disinheritance with the SSS. As I said, look for a competent lawyer-notary public to work on the document for disinheritance. The grounds and requirements for disinheritance are very strict.

Atty. Gerry T. Galacio said...

Nio,

First hearing is the jurisdictional hearing (required for all parties concerned to be present). If during the hearing, the court finds that there are no oppositors to the petition (except the State), then the court might agree to an ex parte hearing. Meaning, the hearing is conducted no longer in open court before the judge but before a court-appointed commissioner and the stenographer. This facilitates the procedure.

If the court does not allow ex parte presentation of evidence (for reasons that the proceeding must be adversarial), then hearings in open court will be held. The number of hearings and the length of time for the whole process will depend on several things (how busy the court calendar is, the number of witnesses you will present, the availability of the fiscal who will represent the State, etc).

Lawyers are not allowed by the ethics of the profession to guarantee the successful outcome of a case. For samples of cases involving Rule 103, you can simply go to any law school library and do some research.

Anonymous said...

Good day Atty.! My girlfriend and I are going to have a baby soon. Since we are not yet married, can I avail of paternity leave or not? Thank you!

Atty. Gerry T. Galacio said...

Section 2 of Republic Act No. 8187 states that “Notwithstanding any law, rules and regulations to the contrary, every married male employee in the private and public sectors shall be entitled to a paternity leave of seven (7) days with full pay for the first four (4) deliveries of the legitimate spouse with whom he is cohabiting. The male employee applying for paternity leave shall notify his employer of the pregnancy of his legitimate spouse and the expected date of such delivery.”

You are not therefore entitled to paternity leave.

nitesoul said...

hi atty! my ex-gf and i parted ways in a not so good way. she is demanding a 20-25% financial support for our son who is currently 7 months old. but she also stated that i will never, ever see my son ever again. my question is, how much do i really have to give as financial support to my son and is it right that i will never see my son ever? that hurts.

Atty. Gerry T. Galacio said...

The amount of financial support depends on the needs of the person asking for support AND the capacitiy of the person from whom support is being asked. Please download my free PDF newsletter from www.familymatters.org.ph titled Issue no. 004 July 31, 2008 "Financial support for abandoned woman and her children". You can use this hyperlink

http://www.familymatters.org.ph/PDF newsletters/Legal issues and family matters number 004 July 31 2008.pdf

You have visitation rights over your illegitimate child. Please download my free PDF newsletter titled Issue no. 008 September 30, 2008 "Visitation rights over illegitimate children". Use this hyperlink

http://www.familymatters.org.ph/PDF newsletters/Legal issues and family matters number 008 September 30 2008.pdf

Since there is disagreement between you and your ex-girlfriend, you should file a petition in court asking for the setting of your visitation rights and how much support you should give. Please take note however that since your child is illegitimate, sole parental authority belongs to her.

Anonymous said...

Hello, My father and mother were married and had 3 children, including myself. They divorced and my father remarried and had 3 more children. Here is the problem: My grandparent's property in the PI was left to my father and his siblings when they passed away, but my father and his siblings never transferred the property into their names. My father passed away this year with no will, but upon his deathbed requested to his wife and his siblings that his share of the properties in the PI properties go to me and my brother and sister from his first marriage. All other assets in the USA (insurance, pensions..etc...) will go to his second wife and their children. The second wife is now fighting for all the property and says it is all hers. We are told even though we are my fathers legitmate children, we have no claim. Is this true? Note: We, the 3 childred from the 1st marriage live in the USA and are US Citizens. The 2nd wife and 3 children reside in the PI. Please advise. I appreciate your help.

Atty. Gerry T. Galacio said...

1. You did not indicate whether your father was a Filipino citizen or not at the time of the divorce, OR why the second wife is saying that you and your siblings do not have any claim. If the basis of the second wife's claim is that your father, you and your siblings are American citizens, then she is wrong.

The properties were inherited by your father and his own siblings. Even if your father was already an American citizen at the time of your grandfather’s death, the Constitution of the Philippines allows foreigners to own lands by way of inheritance, specifically through intestate succession (meaning, without a last will and testament). Please download my free PDF newsletter Issue no. 010 November 15, 2008 "Property rights of foreigners married to Filipino citizens; Can foreign citizens own lands or houses in the Philippines?” You can use this link

http://www.familymatters.org.ph/PDF%20newsletters/Legal%20issues%20and%20family%20matters%20number%20010%20November%2015%202008.pdf

2. Your problem (and even that of the second wife) is that the titles of these properties were never transferred from your grandfather to your father and his own siblings (they probably were just paying all these years the “amilyar” or the real estate taxes). That means that the estate tax probably has never been paid.

The estate tax is 20% of the value of the property; the inheritance tax has been abolished. With all the years from the time your grandfather died until now, the penalties for the non-payment of the estate tax will be extremely high. Please take note that the Register of Deeds will not transfer the titles of the properties from your grandfather to you, your siblings or to the second wife until and unless the estate tax and its penalties have been paid.

3. You can retain the services of lawyers here in the Philippines to fight for your rights. You can find on the Internet the names and contact information of law offices here. I suggest that you retain the services of a law office instead of solo practitioners (unless you know them personally or come highly recommended by your friends and relatives here).

Anonymous said...

Hello, Thank you for your response. My father was US Citizen at the time of his death. We are being told by the second wife and her attorneys in the PI that Phillipine law says upon death, everything goes to the wife and minor children. Our family lawyer in the PI also states this and that we, the children from his previous marrige who reside in the USA, have no claim to my father's inheritance. Is our attorney wrong and we should have a right?

This site and your advice has been very help. I very much appreciate it.

Atty. Gerry T. Galacio said...

I need more information as to properly give you a better informed legal opinion.

I will presume that the 2nd wife is a Filipino citizen based on the facts you have given. I will also presume that your father and the 2nd wife got married here in the Philippines. Did they execute any marriage settlement (or a pre-nuptial agreement as American better understand the term) before they got married? If not, then their property relations will be governed by the Family Code provisions on ACP (absolute community of property). Upon the death of your father, the 2nd wife will be entitled to one-half of your father’s estate as her share in the community property.

What about the other half of the estate?

You mentioned that the 2nd wife’s lawyer says that only the wife and the minor children are entitled to inherit from your father. Your family lawyer also says that the children from the previous marriage who reside in the USA are not entitled to inherit.

Firstly, I am not aware of any Philippine law which says that only minor children can inherit excluding those who are already adults.

Secondly, I don’t know the factual and legal basis for your family lawyer’s opinion that you and your siblings are not allowed to inherit from your father. (Please take note of my previous answer on the right of foreigners to own lands in ther Philippines by virtue of intestate succession.)

THIRDLY AND MOST IMPORTANTLY, your father was an American citizen at the time he died. This means that as to the right of succession (in layman’s terms,. the right to inherit) is governed not by the Family Code of the Philippines or of the New Civil Code of the Philippines BUT by your father’s national law. Specifically, by your father’s state law. Meaning, if your father was a legal resident of California, for example, at the time of his death, then California state law will govern as to who can inherit from him regardless of where the properties may be located. This was the Philippine Supreme Court ruling in the old, old case of Miciano vs. Brimo involving a Turkish citizen who had properties here in the Philippines.

As I said, I do not know all of the factual background. What you can do is to ask your family lawyer to write down his opinion and tell him that you are seeking a second opinion. Based on your lawyer’s written explanation of the facts and the laws he cites, I will be better able to answer your questions.

Annie said...

hi atty, my husband has a son out of wedlock. His son is 13 years old turning 14 in 2009. His son currently resides in my husband's residence in manila and we have been supporting his son's schooling and other living expenses. We have plans of having his son visit us here in the states and possibly migrate here should his son decide that he wants to live with us. We have tried to find his son's files in NSO but we lucked out as they claim that they do not have the paperwork not even in microfilm. We currently have a photocopy of his b/c but we have found out that my husband's name is not listed as the father of the child. Although we have two signed affidavits stating that my husband is the father. THese affidavits have been notarized as well as signed by both my husband and his ex. We tried to go to the LCRO to have his son's bc amended to contain my husband's name in section 15 but the person there said that it is the mother who should come and get these paperwork done. the guy did not even look at all the other evidences that my husband presented to him. all that the guy said was and i quote "dapat kayong dalawa ang mag file nyan" the mother was not present at that time.

sad to say, we have been trying to get a hold of his ex but we havent been lucky enough to locate her and even when we do, we cant seem to get her full cooperation with regards to this matter. I was under the impression that the 2 affidavits and other paperwork (school record, TIN, etc) would suffice as evidence of acknowledgment /paternity. is this true that it is the mother's responsibility to file for the change in b/c? or is there something that we can present to the LCRO /municipal person as we already have two signed affidavits.

we are really in need of your expertise on this matter. i do hope you could shed us some light. thank you very much

annie

Atty. Gerry T. Galacio said...

Please read my post titled “What surname should illegitimate children use? Problems and issues with RA 9255 and its implementing guidelines” (look for the link in the sidebar, or in the introductory portion of this post).

Please take note that even if your husband is able to change the child's surname to that of his, the child will still be illegitimate. This means that parental authority belongs exclusively to the mother. In order to terminate the mother's parental authority, the proper petition must be filed in court.

Anonymous said...

06 January 2009

Magandang araw po, Atty.

Nabasa ko po yung isang article ninyo about annulment and nullity of marriage. Gusto ko po sanang i-contract service ninyo to obtain for me yung sinasabi ninyong COURT ORDER nullifying a marriage I contracted wrongfully on the following basis:

1.Lack of marriage license
2.Lack of authority of the solemnizing official
3.Bigamous marriage

After 4 or 5 years po kasi nang nag-hiwalay kami nung 1st Ex-wife ko I met another woman whom I felt compelled to marry out of necessity. Pero our supposed marriage was not held in a church or in front of an authorized city official. Meron kaming pinuntahang small office offering services like secret marriages, etc. Some of the details na nakasulat doon sa certificate namin are even fictitious Wala din po kaming kinuhang marriage license prior to this. In addition po, 8 or 9 years na rin po kaming hiwalay nitong 2nd ex-wife ko and hindi ko na rin po alam kung nasaan na siya. Meron po kaming isang anak na nasa kanya and hindi ko na rin po nakita ever since na mag-hiwalay po kami. Willing pa rin po ako suportahan yung anak ko pero gusto po sanang maiayos yung illegality nang aming marriage.

Atty., magkano po ba ang magagastos and gano po katagal bago matapos itong prosesong ito?

Kung meron po kayong mga detalye na gustong malaman, willing po akong makipag-correspond sa inyo. Kelangan ko lang po nang tulong niyo.

Salamat po, Atty.

Atty. Gerry T. Galacio said...

As a matter of Biblical principle, I do not handle annulment cases.

Please read the comments and my replies to the comments. I have already discussed the procedures, time, and costs involved in annulment case several times in this blog (look for my posts on marriage, voidable and void marriages, for example).

Persons offering quickie marriage services oftentimes ask people to sign what is known as affidavit of marital cohabitation (Article 34 of the Family Code). With this affidavit which you may have unknowingly signed, there was no need for a marriage license.

As to the issue of a bigamous marriage, that is against your interest. You got married a second time without the first marriage having been judicially annulled first. You can therefore be charged with bigamy. If you cannot establish that your second marriage was void, then you can be convicted of bigamy.

Separation of the couple for seven years or more does not invalidate a marriage. Please read my post titled “If husband and wife have not seen each other for more than seven years, does it mean that their marriage is already void?” (look for the link in the sidebar).

Anonymous said...

good day atty.!
i have a 3 month old son with a married guy, my son is using his father's surname. me and the guy mutually decided not to see each other anymore so that we can move on with our lives--he, with his wife & son, and me, with our baby. there is actually no problem with this arrangement since i can provide for my baby. now, everytime the guy and his wife fight, i am always dragged into the issues and his wife harrassed me through text messages and constant missed calls. those are annoying since i am already living peacefully, and i have lots of things to attend to (since im a working mom). the reason of their constant brawls is that the guy insist on giving my son financial support, and of course his wife insisted that i am the one urging his husband to support our son, that's why she harasses me. she solely believes that i am brainwashing his husband to support the kid, and believes that the kid has no rights either financial or moral supports from his father, since he is illegitimate.
how can i end this nagging situation atty.? if i file RA 9262, what are the requirements/documents needed in filing this? and where do i file this? do i need a lawyer in filing this?
please enlighten me with this procedure atty. Galacio.
thanks so much and God bless!

Atty. Gerry T. Galacio said...

1. Your illegitimate child is entitled to support as provided for by Article 176 of the Family Code. You yourself can ask for support under RA 9262.

2. You cannot file an RA 9262 case against the woman. RA 9262 can only be filed against a husband, former husband, live-in partner, former live-in partner, boyfriend, ex-boyfriend, etc.

You can possibly file against the woman a civil case for damages under Article 21 of the New Civil Code or a criminal case for unjust vexation under the Revised Penal Code. But filing any kind of case will just open yourself to charges or countercharges being filed by the wife.

Anonymous said...

dear atty,
how i can get support for my illegitimate son when his father denies my son? please help me.. thank you!

Anonymous said...

good day atty.!
thank you for the immediate reply. actually, i have no intention of filing any case for the woman. follow up question for the one dated 1/11/09, if i'll gonna file RA 9262, do we need to appear in court for hearings? how long does it usually takes?
thank you so much.

Anonymous said...

Lady Grace,


Hello Atty,

I read all the blogs here, and it can help us a lot.. Atty. i would like to refer my situation, my husband impregnated with other woman before we got married, the story was, we are both pregnant same year and same month, when my husband knew that i am pregnant he marry me, but he didn't abandon the woman, even he has no work, his trying to give a support since her pregnancy until she gave birth. Now atty. my husband has no work, and they want my husband to sign a paper for a legal support, my husband didn't sign it unless he don't have work as of now...Now atty. my husband is applying work for abroad.. what should we do atty? do they have a right to file a case to my husband? they want to file a case in POEA so that my husband cannot go in abroad, i need your reply atty. thanks and more power.. GOD bless


Divine

Atty. Gerry T. Galacio said...

You should file a petition against the man for compulsory recognition of your child. The Family Code provides for certain ways an illegitimate child to establish illegitimate filiation (Article 177 in relation with Article 172).If these ways are not possible or non-existent, in your petition, you can ask the court to compel the man to undergo DNA testing.

Atty. Gerry T. Galacio said...

Of course you have to appear in court for the hearings. You will be asked to testify on the witness stand. Accusation is not synonymous with guilt and you have to substantiate your charges.

Atty. Gerry T. Galacio said...

Divine,

Your husband can be compelled to support the other woman and her child through a Protection Order under RA 9262. This law applies even to the mistress or to the 2nd family.

Please take note however that the amount of support will be balanced by the court between the needs of the person asking for support and the financial capability of the person from whom support is being asked.

Anonymous said...

Good day Atty,

Can you please elaborat a little on the '(b)' part.



Some other evidence that can establish his filiation (relationship with the father) under Article 172 of the Family Code are (a) an admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned; and (b) he open and continuous possession of the status of a legitimate child.

thanks!

Atty. Gerry T. Galacio said...

The phrase “open and continuous possession of the status of a legitimate child” simply means among other things, that the child carries the paternal surname, treated by the parents and family of the child as legitimate, was constantly attended to as to his support and education, and was given the reputation among people in the community of being a child of his parents.

In the case of Aruego et al vs. Court of Appeals G.R. No. 112193 March 13, 1996, the following actions by the father were considered as evidence of a child openly and continuously possessing the status of a legitimate child:

(a) Regular support and educational expenses;

(b) Allowance to use his surname

(c) Payment of maternal bills;

(d) Payment of baptismal expenses and attendance therein;

(e) Taking them to restaurants and department stores on occasions of family rejoicing;

(f) Attendance to school problems of plaintiffs;

(g) Calling and allowing plaintiffs to his office every now and then;

(h) Introducing them as such children to family friends.

Anonymous said...

good day atty,
hi! the father of my new born son is using our fights before as an excuse to get away with his obligation. i told him before that it was better for him not to be involved since our fights was causing me stress that led to threatened abortion, i had to take medications for the baby to be alive.
my lawyer sent him a demand letter of support. if ever i'll file a case of support in court, can our fights before and my actions of letting him go affect the case? can his alibi be valid in court,for him not to provide financial support?
thank you...

bianca

Anonymous said...

hi again..in relation to dna testing, who is compelled to pay for it? is it the complainant or the defendant during the duration of the court hearing?

bianca

Anonymous said...

Sana po ay matulungan nyo ako tungkol sa 2 kung anak idad 17 at 16. ako po ay 24 at ang aking bf ay 22 nung ang aking 17 na anak ay isinilang nung 1990 at dahil sa bagong batas ay napilitan kaming magdecisyon na sa bahay manganak para maisunod sa kanya ang apelyido ng bata at ganuon din po ang ginawa namin after ng 1 taon ng ako ay manganak sa aking bunso. Alam ko po na hindi palusot ang ka ignorantehan ng batas, ang inisip lang po ng bf ko nuon ay ang kahihiyan ng aming anak na ipanganak na walang nakasulat na ama sa bc. sapagkat wala pong nakapagsabi na pwede naman palang ilagay ang kanyang apelyido sa likod ng bc bilang patunay na kinikilala nya ang kanyang mga anak. Kaya sinulat po nya sa bc ng mga bata na kami ay kasal at hindi naman po kami hinanapan ng katibayan. Kami po ngayon ay matagal ng hiwalay at may kanya kanya ng buhay. ang mga anak ko po ay sa kanyang pamilya nakatira dahil mas angat sila sa kabuhayan, ang kanilang ama ay sa America na rin po naninirahan. ang problema po ng aking 2 anak ay:
1. gusto silang kunin ng kanilang ama ngunit kailangan nila ang marriage contract (dahil po dito ay baka malaman na rin nila na sila ay d lihitimo)
2. umalis ang kanilang ama na single ang estado dahil yun naman ang katotohanan kaya ang bc nila ay magkakaruon ng question.
3. matagal ko ng sinuko ang aking karapatan sa kanila ngunit ngayon ay kailangan nila ng consent ng ina kung lumabas na sila ay ilihitimo (yun ay d ko maibigay dahil hindi alam ng aking bf ang tungko sa kanila)
Maaari nyo po pa akong payuhan kung pano maiaayos ang kanilang papeles (bc)kung mapatunayan na walang naka record na kasalan pwede po bang ayusin ang bc. payag pa rin po ang ama na gamitin ang apelyido nya pero sana ay tangalin na kami ay kasal.
Pasensya na po kung napakahaba ng aking isinulat at sana po ay matulungan nyo po ang aking mga anak para sa kanilang future.
God Bless

Anonymous said...

hello, i would like to seek your advice regarding guardianship to my younger siblings. My mum and dad is separated for more than 13 years now and me and my siblings are living with my father's family since then. I found out that he is not my real father (bc is not showing his name and my known father confessed) and that they were not also married as what my brother and sisters bc is stating otherwise. so that makes the 3 of us illigitimate and thats where my problem started because I dont know where are mum now. May I know how i can get legal custodianship to my siblings in the absence of my mother so that i can transact legal matters for my siblings behalf. thank you

Atty. Gerry T. Galacio said...

1. Please read the Supreme Court Rule on Guardianship of Minors under the Legal Procedures section of www.familymatters.org.ph.

2. Article 216 of the Family Code states:

In default of parents or a judicially appointed guardian, the following person shall exercise substitute parental authority over the child in the order indicated:
(1) The surviving grandparent, as provided in Art. 214;

(2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and

(3) The child's actual custodian, over twenty-one years of age, unless unfit or disqualified.
Whenever the appointment of a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed.


3. You can ask for free legal help from the PAO (Public Attorneys Office) or from the IBP (Integrated Bar of the Philippines) chapter in your town or city. The IBP chapter offices are usually located in the Hall of Justice of cities. You can also try to get free legal help from the OLA (office of Legal Aid) of the UP College of Law in Diliman, Quezon City.

The DOJ Action Center acts on complaints, requests for assistance and legal queries of walk-in clients of the DOJFor legal assistance please visit the Department of Justice Action Center (DOJAC) Main Office, Ground Floor, Multi-Purpose Building, Padre Faura Street, Ermita, Manila; Telephone no: 523-84-81; Email Address: dojac@doj.gov.ph or visit any Regional/Provincial/City Prosecution Offices in your locality.

Atty. Gerry T. Galacio said...

The legal remedy which can be used in this situation is Rule 108 for cancellation or correction of entries in the birth certificate. RA 9048 or the Guinigundo Law is not applicable since the matters at issue here are substantial and not merely clerical errors. But you yourself or your children’s father cannot file this petition since you were the ones responsible for the false entries. Your own children should be the ones to file this petition to correct their birth certificates. The problem however is that you could potentially be charged criminally with falsifying entries in the birth certificates.

Atty. Gerry T. Galacio said...

Bianca,

You already have a lawyer handling your case. It will be a violation of the ethics of the legal profession if I counsel you on the merits of your case. I’m sure you investigated the capability of your lawyer before you retained his or her services. You should therefore trust your lawyer’s competence. Ask your lawyer to explain every aspect of your case, and at the same time, read as much as you can on these matters.

Atty. Gerry T. Galacio said...

For everyone:

Thanks for browsing this blog. I hope that I have been able to help you even in some small way. From this point on, however, please do not post your questions or comments here. Please email to me your questions or comments at gtgalacio@yahoo.com.


Answering e-mails is a much more straightforward and time conserving effort for me. With questions posted in this blog, I have to first open my e-mail and then copy/paste the comments or questions to Word. After composing my replies, I then have to search for the specific page where the comments are located and then use a dialog box to post my replies. It is a time-consuming process.

Again, from this point on, please e-mail your questions or comments to me.

youngmother said...

Good Day Atty.,

I am 22 years old,a mother of a 4-year old baby girl. I gave birth at the age of 17. My baby is using my surname.I'm not yet married because I'm still pursuing my studies. My baby right now is in the care of my cousin who has no child and with a live-in partner.They are now in our province while I am here in Manila.I left my child when she was 1 and half years old. Most of my friends ask me, what if they will change the surname of my baby with their surname? What will I do? Now Atty., is it possible that they can change the surname of my baby without my consent?I read from your site that a illegitimate child who is under 7 years old must be in the custody of the mother. What if attorney I can't still get my baby during that time, can I still get my baby? I consult you attorney because I'm really worried to think about it. Hope you can give an advice..Thank you and God bless!!!

Atty. Gerry T. Galacio said...

Your cousin and live-in partner cannot simply or even legally change the name of your child. They will have to resort to forgery or falsification of public documents in order to get a new birth certificate for the child.

Under Article 176 of the Family Code, you as the mother have sole parental authority over the child. Even if the child has gone beyond seven years of age, you still have parental authority over her. If and when your cousin does anything to deprive you of custody of your child, you can apply for a Protection Order under RA 9262 to regain such custody.

To avoid that potential problem however, you should place your child under the care of another party, not with your cousin. Contact the DSWD in the town or city where your child is in right now and ask about placing your child in a foster home.

You did not also mention about your parents. Why not place your child under the care of your parents? If your parents do not know about your child, then perhaps it is time that you confide in them about your situation.

Anonymous said...

Hello there,

My question is as follows. My girlfriend and I wish to get married outside of the Philippines. She has a 4 year old son who was conceived with her ex-boyfriend (they were never married) and now the local government (swiss) require 'proof of custody'. Is there a text that stipulates clearly that an illigitimate child 'belongs' to the mother, even if he has his birth fathers name? His father refuses to be part of discussions about joint custody (which in myunderstanding is more rights than he is allowed to anyhow?

Can you please help?

It is much appreciated. Thank you.

Atty. Gerry T. Galacio said...

Article 176 of the Family Code of the Philippines states:

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 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.(As amended by Republic Act 9255, approved February 24,2004.)

Please download my free PDF newsletter titled Issue no. 008 September 30, 2008 “Visitation rights over illegitimate children” from www.familymatters.org.ph . Please also read my article on the same topic in this blog (look for the link in the sidebar).

Please take note of the following:

[1] Even if your girlfriend’s child is using the surname of the biological father, the child is still illegitimate. Being illegitimate, the child is under the SOLE parental authority of the mother.

In a court battle over custody, Article 176 of the Family Code and Supreme Court decisions are squarely in favor of your girlfriend. Actually, you do not even have to go to court to establish what the law and court decisions have already provided for. As the Supreme Court decided in the 2004 case of Briones vs. Miguel:

“An illegitimate child is under the sole parental authority of the mother. In the exercise of that authority, she is entitled to keep the child in her company. The Court will not deprive her of custody, absent any imperative cause showing her unfitness to exercise such authority and care.”

[2] The biological father’s rights pertain only to visitation rights and NOT to custody of the child. Thus, if your girlfriend brings the child out of the country, that is an exercise of her parental authority. The biological father cannot say that his visitation rights are being violated if the child is brought out of the country.

This is what happened in the Silva v. Court of Appeals case which I discussed in this blog and in the PDF newsletter. The mother despite, the court-imposed visitation rights, brought her children out of the country to Holland in the exercise of her parental authority.

[3] Travel clearance for illegitimate children: Based on the DSWD’s amended rules on travel clearance, the Parental Travel Permit, which was a former requirement for a minor traveling with only one parent, is no longer needed. A minor traveling abroad with either parent or with his her solo parent or legal guardian is exempt from the travel clearance requirement.

[4] Please take note however that if and when you plan to adopt the child later on, you will need the consent of the biological father.

[5] With regards the problem of the child using the surname of the biological father, please download my free PDF newsletter titled Issue no. 005 August 15, 2008 "What surname should illegitimate children use? Problems and issues with RA 9255 and its implementing guidelines"

In the last portion of this newsletter, I discussed how women affected by this situation can have the name of the child reverted to their surname instead of the father’s surname.

If you want to have official copies of these laws (Family Code of the Philippines, DSWD travel clearance guidelines, etc), you can ask for help from the Philippine embassy or consulate in Switzerland. OR, you can try to contact the University of the Philippines Law Center which is the official repository of Philippine laws. For the amended travel clearance guidelines, please surf to www.dswd.gov.ph. For the Supreme Court decisions, please surf to www.supremecourt.gov.ph

Problematic said...

Good Day Atty!

I have a concern regarding RA 9255 and my child's name.

My son was born March 2005, but during those times, my girlfriend's parents did not accept our relationship and thus took my girlfriends pregnancy into hiding. I was informed that during my son's registration, he has three given names, and the middle and last name was the same as his mothers.

After a year, we have finally decided to live together as what we are doing today, which finally had her parents blessings. We are still living together and are currently planning to fix our son's birth registration for future identifications. Now my questions:

1. My son has three given names, due to my girlfriend's mom, the real two names was added with another one in which we were totally against. Is there a possibility to remove that other given name since we do not even use that name to call our son (and by my opinion, would give our son a hard time writing his own name)?

2. I have read about RA 9255 and what does it do. If we plan to change my son's last name, aside from the public document and acknowledgment of the father, could we make this appeal into effect even if we are still not yet married but just living together?

3. As addition to question number 2, I am currently having a hard time financially supporting my son, but since we three are now living together, the both of us share time and expenses for the child. Would the LRC question if I am financially capable of supporting the child? If so, would this be a hindrance in our intentions on changing the surname?

4. As my son is using the same middle name as his mothers, is there any way we could change that into the mother's surname if we appealed for the change of surname?


If you do wonder why such problems have been done, this was due to my girlfriend's mother who made the registration in birth against my girlfriends will, at the same time, I was late to arrive at the hospital for about a few hours due to work and at the same time, my girlfriend did not wish me and her mom to meet back then.

If you also have any other advices on what we should do, I would also like to know about it so we should be perfectly aware on everything that must be done to fix all the problems we face at the moment.

Thank you so much for your help and more power to your blog.

Atty. Gerry T. Galacio said...

Problematic,

1. With regards the three given names I doubt if RA 9048 (Guinigundo Law) will apply or if the LCR will allow it. This law was meant only for change of first name (when there is a difference between the name in the birth certificate and the name used in documents like school records) and for correction of clerical errors. The proper remedy which the LCR might require is Rule 108 “Correction and cancellation of entries in the civil register”. You should clarify this matter with the LCR. Filing a Rule 108 petition is time-consumng and costly.

2. With RA 9255, the change in the child’s surname from that of the mother to yours is allowed even if you are not married. As to your financial capability at this point in time, this will not be inquired into by the LCR.

3. Please read my primer on the Family Code provisions on legitimation, Articles 177 to 182 (look for the link in the sidebar). If you and your girlfriend qualify for legitimation (that is, there was no legal obstacle or impediment to your marriage at the time your baby was conceived, and you got married later on), then you should do so. Meaning, get married and then ask for the change in your child’s birth certificate. Please consult with the LCR if the problem with the middle name can be remedied when you apply for legitimation. If the LCR will not agree with changing the middle name, then again as I said, you will be forced to file a petition in court under Rule 108.

Anonymous said...

Hi Atty,

I just want to ask a few questions regarding our current family situation. My uncle(my father's brother) died last year, and left a small property in laguna. Since my deceased uncle is single, the property is left to the three brothers, one of them is my father. They decided to give the ownership to one of my uncle, which in turn will pay my father and my other uncle they're share (in assumption that the property will be sold to my other uncle, less his share of the assessed amount) of the property. what are the process to formalize/legalize this agreement? the land title is still named after my deceased uncle. thanks.

Atty. Gerry T. Galacio said...

Within 30 days from the death of your uncle, the three brothers should have filed with the BIR a notice of death.

The three brothers should ask a notary public to draft an extra-judicial agreement for them, incorporating the sharing or division plan they have agreed upon. After signing this agreement and having it notarized, they should then pay the estate tax with the BIR. The tax is 20% of the value of the estate, less deductions for last hospitalization, funeral, etc.

After paying all the taxes (estate, transfer taxes, real estate tax, etc), the three brothers can then present proofs of payment of these taxes and the extra-judicial agreement, etc. The Register of Deeds will then transfer the title to the brother named in the settlement.

Anonymous said...

hi attorney,I am a single mom with two kids.my problem is that how will a demand for a financial support from the father of my kids.coz, he keeps on declining that we can never ask his support because were not living with him.We are not yet married.because his annulment is in process.Do we have the right for support? Thanks and more power.

azzihr0624

Anonymous said...

hello attorney. I am separated for three years and i got two children borne outside ny marriage. When I gave birth, I was a bit confused about the baby's surnames so, my partner and I made a fake marriage certificate.Im a bit worried now because i was having doubts that his mother will take my children away from me. Can i file for a protection order under RA 9262 if ever that situation happens? She was threatening to kill me and family if i take my kids with me. What is the best thing to do?

Atty. Gerry T. Galacio said...

You did not indicate what your partner is doing right now or if the mother is acting in his behalf. If the mother is acting in his behalf, then you can apply for a Protection Order under RA 9262 for custody of your children. The Protection order can be also for your partner or any person acting in his behalf to stay away from you and your designated family members. Your partner’s mother does not have any right over your children.

Anonymous said...

hello!

Would like to ask website re Local Civil Registrar on Illegitimate children before & after world war II, like 1945 below.thanks

Anonymous said...

hi... i am a father of three and my marriage to their mother was annuled three years ago... i now have a girlfriend who is now carrying my child... she wants us to get married... by doing so and without a pre-nup, i understand that my girlfriend and my unborn child will be entitled to whatever is provided by law... my eldest daughter, who is 15 by the way, insists on my gf and i having a pre-nup, to protect them from anything untoward that may happen in the event that we do get married... is there anyway that i could give my three kids that protection without having to go through a pre-nup?

hope you can provide me with some answers... thanks...

vassili said...

Good day Atty. Galacio,

I appreciate so much the advises that you gave to other people, I am Allan from Zambales & i'm also a illegitimate child, I was raised by my mother alone without my biological father (they are not married). i never hesitate to ask her regarding my biological father since my childhood, i'm already 28 yrs.old, married & also a father to 1 child. when i was a child, i acquired informations about my biological father from my mother's relatives, then I just confirmed then that some of my ninong & ninang are actually my uncle & aunties from my biological father sides. I never bother my biological father knowing that he alraedy had another family, he dont gave me any financial support & never show-up to me. My questions are, What are my rights being an illegitimate child? What should i do if ever i have a rights? How about if he denied me as his biological child? my Birth certificate doesnt indicate any name of my biological father.
I truly need your assistance & advise to this case of mine.

Sincerely,

ALLAN

Yumi said...

Hi.

I am giving birth soon. May choice ba ako na gamitin ng baby ko ang surname ko instead of her father's kahit alam ko na pwede nya gamitin ang surname ng father nya by proving that he recognizes her through a public document or signed private letter? If I let her use her father's surname, will it have an adverse effect on his annulment with the ex-wife?

Please advise me on what to do best for myself and my baby. Many thanks.

Atty. Gerry T. Galacio said...

The NSO website is www.census.gov.ph. Before the effectivity of the Family Code of the Philippines in August 1988, the prevailing law was the New Civil Code of the Philippines.

Atty. Gerry T. Galacio said...

Yumi,

As to what possible effects the use of the father’s surname are on his pending petition for declaration of nullity, you have to consult the lawyer handling that petition.

A lot of women have regretted using the man’s surname in the child’s birth certificate especially when the man refused to provide financial support or totally abandoned them. Some women also had the opportunity to get married to other guys and problems arose since their child is using the biological father’s surname. If you plan to go abroad in the future, you will have problems bringing your child out of the country if the birth certificate bears the father’s surname.

Atty. Gerry T. Galacio said...

Allan,

Under Article 176 of the Family Code, an illegitimate child is entitled to inherit from his/her biological father. The illegitimate child gets a share of the inheritance which is 50% of whatever a legitimate child is entitled to receive.

But since you have not been recognized by your father, you need to establish that you are indeed an illegitimate child of your father.

Article 175 of the Family Code states that illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children.

Thus, you can try to establish your illegitimate filiation through Article 172 which states:
The filiation of legitimate children is established by any of the following:

(1) The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child; or

(2) Any other means allowed by the Rules of Court and special laws.
Even now, you might have to file a petition for compulsory recognition of an illegitimate child against your biological father.

For free legal assistance, please contact the DOJ Action Center. The DOJAC acts on complaints, requests for assistance and legal queries of walk-in clients of the DOJ. For legal assistance please visit the Department of Justice Action Center (DOJAC) Main Office, Ground Floor, Multi-Purpose Building, Padre Faura Street, Ermita, Manila; Telephone no: 523-84-81; Email Address: dojac@doj.gov.ph or visit any Regional/Provincial/City Prosecution Offices in your town or city.

Atty. Gerry T. Galacio said...

Please ask the lawyer who handled your annulment case to explain to you and your children what legal safeguards the Family Code and the court decision itself provide for the children.

First of all, the FC and the court decision annulling your marriage provide that your children’s presumptive legitimes be given to them. Has this been done? (“Presumptive legitime” means whatever your children are entitled to inherit from you and your former wife at the time of the court’s decision.)

The FC also provides that later on (when you or your ex-wife dies), your children will still inherit from you (and your spouse) minus what they have already received as their presumptive legitimes.

Also, your children are legitimate despite the declaration of nullity of your marriage. This means that they are entitled to support under Articles 194 to 208 of the Family Code. This means that your children should not be afraid that they will be neglected especially if you begin to have children with your (prospective) spouse.

Anonymous said...

Good day Atty. Iam a single mother of a seven-year old child. My daughter uses my middle and family name. Will there be a problem if her birth certificate indicates my middle and family name?Thank you.

Atty. Gerry T. Galacio said...

It will appear that you and your daughter are not mother and daughter BUT sisters. The entry for middle name should have been left blank. You can file a petition for correction under Rule 108.

Please take note of the issues I discussed in my post What surname should illegitimate children use? Problems and issues with RA 9255 and its implementing guidelines (look for the link in the sidebar).

Anonymous said...

Just a follow up question, if i dont file a petition for correction, will there be a problem in the future since my daughter's school record shows she has my middle name? and can the father not be obliged to support her? Her father sends financial support but he never finds a way to see her since birth. Can i force him to see my daughter?

michelle said...

Good day Sir,
My husband has a child before we got married. He regularly sends money to the child every month since she was born as her allowance and we also pay for half of her tuition fee plus miscellaneous yearly since she started schooling for i want the other half to be paid by the mother who has a very stable job as software developer in an international company and a sarisari store in their house.we are not lucky to have a child of our own yet. my question is does his illegitimate child has a right to claim from our conjugal property like the house and lot my husband bought during our marriage, a bank remittance account under my name alone wherein my husband sends money, and a joint bank account of my husband and me?

Atty. Gerry T. Galacio said...

If ever you go abroad or try to avail of benefits (SSS, GSIS, etc) for your child, you might have a problem establishing what the right legal relationship is between you and your daughter.

The father’s relationship with your daughter is a personal matter. He cannot be judicially forced to see or care for his child. Please read my post “Can you legally force your spouse to live with and to love you?” which deals with this issue (look for the link in the sidebar).

angela said...

Atty.,

As i've read the previous emails on this blog, i got confused on what surname an illegitimate child should use. My husband has an illegitimate son before we got married. His son uses the middle and family name of his mother in all his school records though my husband signed the birthcertificate. Under RA 9255, is it automatic that the child must use my husband's surname because he has signed the birthcertificate? I just want to know so that i could advice the mother on what surname the child should use to correct his school records for he his only in grade 4and to avoid problems in the future.

Anonymous said...

Dear Atty,

I would like to ask if I can take my 4 yrs old son out of the country

He is using my last BF's surname and the guy also signed on the Birth Certificate

I have not heard anything from him for the last 3yrs nor received any financial support

I am applying for Canada and I wanted to take my son

It is breaking my heart leaving my son

Thank you,
Zol

Anonymous said...

I am not married with my son's father

Thanks,
Zol

Mai said...

Atty,

Does the mother of an illegitimate child has a right to ask for financial support for herself under RA 9262? The father gives monthly allowance for the child and pays for the child's school fees. I hope you could help me with this because my husband's ex gf is demanding for support not only for the child but also for herself.

Atty. Gerry T. Galacio said...

Mai,

Your husband’s ex-gf is covered by RA 9262. She has the options of filing against your husband a civil case for damages, a criminal case, or a Protection Order (ro all three). As to whether she is entitled to continuing support for herself, it will depend on what her allegations will be in the case she will file. (She can, for example, claim that she herself has expenses in taking care of the child.)

But she can, as I said, file a civil case for damages against your husband. These damages include actual, exemplary and moral. For example she can claim that due to that previous relationship and the child, she has been deprived of economic and educational opportunities.

Atty. Gerry T. Galacio said...

Zol,

Please surf to the DSWD website (www.dswd.gov.ph) for the amended and relaxed rules on travel clearance for minors, illegitimate children, etc.For free legal assistance, please contact the DOJ Action Center. The DOJAC acts on complaints, requests for assistance and legal queries of walk-in clients of the DOJ. For legal assistance please visit the Department of Justice Action Center (DOJAC) Main Office, Ground Floor, Multi-Purpose Building, Padre Faura Street, Ermita, Manila; Telephone no: 523-84-81; Email Address: dojac@doj.gov.ph or visit any Regional/Provincial/City Prosecution Offices in your town or city.

Atty. Gerry T. Galacio said...

Angela,

Please read my post “What surname should illegitimate children use? Problems and issues with RA 9255 and its implementing guidelines” (look for the link in the sidebar).

The entry for middle should have been left blank. Since your husband’s illegitimate child is using the middle name and the surname of his mother, it will appear that the mother and the child are siblings (“magkapatid”).

The Implementing Rules and regulations of RA 9255 make it mandatory for an illegitimate child to use the surname of the father. This is why I said that the IRR of RA 9255 has become a tool for oppressing women.

Atty. Gerry T. Galacio said...

Michelle,

Article 176 provides that an illegitimate child has the right to inherit from the biological parent (50% of what an illegitimate child is entitled to as inherit). When your husband dies, his compulsory heirs will be you, his parents (if still alive), and the illegitimate child (assuming of course that if by that time, you still do not have children). Your husband’s compulsory heirs will have to settle his estate. Please read my March 19, 2009 post titled “Article 176 of the Family Code: computing the legitimes of legitimate and illegitimate children; an illegitimate child gets one-half.” This post discusses how the estate is divided among the surviving spouse and the children (legitimate or illegitimate).

COSINE said...

Hi Atty. Galacio,
the father of my son was a PMAer. I gave birth to his son but when he was still serving our country. I didnt know that he has family with 2 kids because he lied that he's single. I notified him about my pregnancy, but because of scandal and i was not after for his money, i didn't search for him for 2 years. I was outcast by my parents and siblings. Due to financial stability and pity on my child, I had contacted with him through facebook. He recognized his son because he really looks like him.. He told me that he cant give financial support as a father, he has to save allowance because his wife can notice it to send me. Now our child is 8 years old.. The father is a member of US Marines and now a US citizen.. What rights shall I and child can claim from him? What legal actions can i make that my child will experience what his half brothers experience, too?Thanks and hope u can answer me clearly me. More power!!!

Atty. Gerry T. Galacio said...

Cosine,

Please read my posts on RA 9262, Protection Orders for financial support and “Support for abandoned woman and family” (look for the links in the sidebar).

Anonymous said...

Atty,

here's my case:
I used to have a live in partner for 4 yrs, never married, had a son. broke up with him coz im fed up with his borderline personality disorder (seems like he has it),but cant leave the house coz I cant get my son coz his 91 year old father (we live at his fathers house), very weak, loves my son dearly wants my son at the house all the time.I gave in. so, were separated but still lives under 1 roof, i was also still looking for a place then and was picky for my son. then i met someone, we dated and i didnt expect it to be serious. when he left the phils,(foreigner) we kept in touch.i didnt know that he's been spying on my emails pala in our computer. im that stupid. I even saved some of our chats. to make the story short, he used it against me and said that i can now not get my son coz i had an affair while were together! and he even blackmailed me! he will send the emails to my boss coz my BF is a guest at the hotel I worked with and im not allowed to date any guest (i told my boss anyway), also, he videotaped us sleeping in one bed to show my BF that were still 2gether. we argue all the time on which room should my son stay (im supposed to sleep in the spare room) but im tired from work, decided to just sleep in our room with my son in the middle of the bed. I explained to my BF anyway, but that was it for me, I left. I now live 7mins away from them. I can only get my son2x aweek coz of his father again! now that they say hes dying, i cant get him anymore, so i visit my son whenever I can.
I am under a k1 visa now. once my visa's released, i plan to bring my son under k2 visa. he said he will not allow it and will do everything in his power for me not to be able to get my son. hes accusing me of abandonement naman ngayon! coz my son was with him all the time daw! crazy!
what should i do atty? should i just secretly prepare my sons requirements, visa, passport and then just take him with me on the day of our flight? Im willing naman to let my son stay pa with him and my family for almost a year before i get him but i dont want to take the risk coz he could plan something or hide my son while im in the US.hes so selfish, ive been so giving. my son got closer to him na nga and recognizes the nanny as more of his mom than me coz i cant take my son home with me. please enlighten me.

thanks,

abby

Faithless said...

Hi Atty. Galacio.

I've read some random posts and find it very helpful. I would like to seek for your advice regarding my sister's case. She is legally married and had one daughter however due to some misunderstandings, they separate ways when their kid was about 3 years old. The case is, she just gave birth last May 8th on her second daughter with another man. We are quite confused now on the status of my sister being married since we are going to register the child anytime soon. Reading your blogs about surnames of illegitimate children, we are seriously both considering the options of naming it after the father or just leaving the child's middle name blank.


Please give us few suggestions on what will be our best options on my sister's status as what will reflect on the child's birth certificate.

Thanks and God Bless!

expecting mama said...

Dear Atty. Galacio,



I am thankful I have read your web pages.



I'd like to ask how can an illegitmate child be legitimated?



I, 30 and my bf, 33 were thinking of getting married after my giving birth this coming oct/nov. I know that children born out of wedlock are classified as illegimate. But can a subsequent marriage automatically be legitimated? If not, what are the requirements and how long are we going to process that?



Thank you and I look forward to your response.



Regards,
expecting mama

Atty. Gerry T. Galacio said...

Abby,

Your son is illegitimate and so under Article 176, SOLE parental authority belongs to you. The biological father only has visitation rights.

Please read my other posts like “Can a mother be deprived of custody of her child?” and
“Custody battles over children: what determines fitness of a parent over another?” (look for the links in the sidebar). In these posts, I discussed that even if the mother is convicted of adultery, she cannot be deprived of custody of her child. The Court said that the imprisonment is enough punishment for her.

Please read especially the post titled “Visitation rights over illegitimate children” where I discussed the case of Silva vs. Court of Appeals (http://www.supremecourt.gov.ph/jurisprudence/1997/jul1997/114742.htm).

In this case, the court granted visitation rights to the biological father. Despite this however, Suzanne Gonzales (the mother) in the exercise of her parental authority was able to immigrate with her children to another country.

Unless the biological father succeeds in a court case of having your parental authority terminated, he cannot prevent you from immigrating with your child. (Please study the amended and relaxed rules on travel clearance for minors with the DSWD website).

As a precautionary measure, you should apply for a solo parent ID. Contact the DSWD in your municipal or city hall and submit all the required documents.

For free legal assistance, please contact the DOJ Action Center. The DOJAC acts on complaints, requests for assistance and legal queries of walk-in clients of the DOJ. For legal assistance please visit the Department of Justice Action Center (DOJAC) Main Office, Ground Floor, Multi-Purpose Building, Padre Faura Street, Ermita, Manila; Telephone no: 523-84-81; Email Address: dojac@doj.gov.ph or visit any Regional/Provincial/City Prosecution Offices in your town or city.

You can also try to ask for legal assistance from SALIGAN (Sentro ng Alternatibong Lingap Panligal) Manila, G/F Hoffner Building, Social Development Complex, Ateneo de Manila University, Loyola Heights, Quezon City, Philippines; Tel. (632) 426-6001 loc. 4858-4860, Telefax: (632) 426-6124; E-mail: saligan@saligan.org; Website: www.saligan.org

Anonymous said...

Hi, my husband had a son with a woman before me, but they were never married. However, in the child's birth certificate, it indicates that his parents are married, which is actually not, hence there was a discrepancy in the birth certificate. After several years, my husband and I got married and we now have a child. I just want to know the legal and/or financial rights of our own child vs his 1st child? Do they have equal rights in all aspects? Do you consider his 1st child a legitimate? even if the marriage never took place and the information was written wrongly.

Atty. Gerry T. Galacio said...

expecting mama,

Please read Articles 177 to 182 of the Family Code on legitimation (www.familymatters.org.ph). Please also read my post “Family Code of the Philippines: Primer on legitimation” (look for the link in the sidebar).

For the documents to be submitted for legitimation, please consult the Local Civil Registrar in your town or city.

Atty. Gerry T. Galacio said...

Faithless,

Since your sister is still legally married, then her baby is presumed to be that of her legal husband. Article 164 of the Family Code provides that “children conceived or born during the marriage of the parents are legitimate.”

Please read carefully the 2005 Supreme Court decision in the case of “Gerardo Concepcion vs. Court of Appeals and Ma. Theresa Almonte.” In this case, Gerardo filed a case for declaration of nullity of his marriage to Theresa on the ground their marriage was bigamous.

Theresa was already married to a certain Mario when they got married (and Mario was still alive and living in Quezon City.) As a result, the trial court declared their son Jose Gerardo to be an illegitimate child. When the trial court denied Theresa’s motion to have Jose Gerardo’s surname changed to her maiden surname, she brought the case up to the Court of Appeals.

The CA ruled, to the shock of both Gerardo and Theresa, that Jose Gerardo was not the son of Ma. Theresa by Gerardo, but by Mario during her first marriage. The CA ruling, later on affirmed by the Supreme Court, declared that every presumption must be in favor of legitimacy. The Supreme Court ruled that

[1] During the period that Gerardo and Ma. Theresa were living together in Fairview, Quezon City, Mario was living in Loyola Heights which is also in Quezon City. Fairview and Loyola Heights are only a scant four kilometers apart.

[2] Not only did both Ma. Theresa and Mario reside in the same city but also that no evidence at all was presented to disprove personal access between them. Considering these circumstances, the separation between Ma. Theresa and her lawful husband, Mario, was certainly not such as to make it physically impossible for them to engage in the marital act.

[3] Sexual union between spouses is assumed. Evidence sufficient to defeat the assumption should be presented by him who asserts the contrary. There is no such evidence here. Thus, the presumption of legitimacy in favor of Jose Gerardo, as the issue of the marriage between Ma. Theresa and Mario, stands.

Your sister is in a legal mess. If she registers the child using her maiden surname, then she can be charged with adultery by her legal husband. If the child is registered under the surname of her legal husband, following the Supreme Court ruling I discussed above, then the legal husband and his family can contest the legitimacy of the child, and possibly bring a civil case for damages against your sister.

As to the custody of your sister’s daughter, please read my Legal Updates posts:

Can a mother be deprived of custody of her child?

Custody battles over children: what determines fitness of a parent over another?

The Supreme Court has ruled that even if a mother has been convicted of adultery, this is not necessarily a ground for depriving her of custody of her children. The imprisonment by itself is enough punishment. (During the imprisonment however the father may petition the court for temporary custody of the child/children.)

Atty. Gerry T. Galacio said...

Based on the birth certificate of the first child:

[1] It appears that your husband is married twice; thus he may be sued for bigamy.

[2] It appears that your marriage is null and void for being bigamous.

[3] It appears that the first child is legitimate and thus entitled to all the rights and privileges under the provisions of the Family Code (use of parent’s surname, inheritance, support, etc).

Your husband should therefore take legal steps to correct the birth certificate of that first child under Rule 108 of the Revised Rules of Court to clear the issue of whether the child is legitimate or not, and to erase any cloud over the legality of your marriage. He should retain the services of a lawyer.

Anonymous said...

I have a son with a married man. In his birth certificate, of course the child carries my maiden name, I'm the only parent indicated and the space intended for the father is blank. All other legal and public documents indicate that I'm the sole parent. When I got involved with the married man, he and his wife have been separated already for many years. They lived in different houses since they separated. The guy and I never lived in the same house and were already separated even before I gave birth. The wife has knowledge of my existence and already had a verbal agreement with the husband that they would mind their own business (since the wife is also involved with another man). Their annulment is underway. My question is, can the wife sue me for whatever case? If yes, what's the corresponding punishment? How can I counter if ever she files a case?

Atty. Gerry T. Galacio said...

Please read my post “Adultery, concubinage and psychological violence” (look for the link in the sidebar). Please also read the comments and my replies to the comments.

Anonymous said...

My father passed away recently. He has 2 illegitimate children using his surname. He did not leave a will bec. he does not have any properties here in the Philippines but abroad. My mothers owns properties during the time of their marriage, all of which are solely under her name - she worked for it, my father did not contribute a single penny. We want to protect her so that the illegitimate family cannot touch her hard earned wealth. I am worried that the law might see the properties as conjugal and therefore, my dad has a share and so do the illegitimate children. Please help. Thank you.

Anonymous said...

my daughter out of wedlock use my surname .how can i change her surname into his biolgical father's surname.what are the process of this action?her birth certificate was not yet released.

Atty. Gerry T. Galacio said...

You did not indicate as to when your parents got married. After August 1988 when the Family Code took effect, the system of property relations between couples (when there is no pre-nuptial agreement) is automatically absolute community of property. Before August 1988, under the New Civil Code of the Philippines, the default system of property relations was conjugal partnership of gains. In brief, under the CPG, there were properties considered as exclusive properties of each spouse, and the spouse merely shared whatever the fruits, interests, gains were from the conjugal partnership.

If your parents got married before August 1988, their property relations were governed by CPG. The system of liquidating the CPG is now covered by the Family Code. Please read my posts on ACP and CPG (look for the links in the sidebar).

You also did not indicate what was your father’s citizenship at the time he died. If he was a foreign citizen, then his national law (not Philippine law) will determine who his heirs are.

Please take note that even if the property are titled only in your mother’s name, this will not necessarily mean that such properties are exclusive to your mother. You should personally consult a lawyer who can look at all your documents, ask for all details, etc.

Atty. Gerry T. Galacio said...

Please read my post What surname should illegitimate children use? Problems and issues with RA 9255 and its implementing guidelines (look for the link in the sidebar).

Anonymous said...

i would like to ask under RA 9262 under in the description of terms "Violence against women and their children" refers to any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty."
Now in the description "with whom he has a child" what if the situation is that the father do not have the job or sick. so the father cannot provider financial assistance. is there any possibilities that the father will be imprison? thank you.

joie

Atty. Gerry T. Galacio said...

Joie,

The Family Code provides that the amount of support is balanced between the necessities of the person asking for support and the financial capability of the person from whom support is being asked. If the father is unemployed therefore, that cannot be used as ground for putting him in prison.

Anonymous said...

hello atty. i have a son out of wedlock, his father signed his birth certificate and even gives support every month, after 7 years, his father married and now his father's wife texted to inform me to stop asking support since hes already married and he does not enough money to support his illegitimate son. does she have the right to text as such? does my son has no right to get support from his natural father just because he is illigitimate? please advise.

Anonymous said...

hi. is the father of an illegitimate child entitled to child custody if the mother dies? my sister gave birth to a baby girl, and her boyfriend (they are not married) acknowledge paternity at the birth certificate. however, my sister died a few days after delivery. can my family claim custody over the child? what are the rights of the baby's father?

Atty. Gerry T. Galacio said...

Your son even if he is illegitimate has the right to be supported by his biological father. Under Article 176 of the Family Code, he even has the right to inherit from his father. Please read my post “Support for abandoned woman and family” (look for the link in the sidebar) as to the procedure by which you can ask for support for your child.

worried mom said...

hello atty. I have a big problem right now. I had a relationship with a married man and got pregnant with him. his wife discovered it lately but i don't have an affair with him anymore. I haven't talked and seen him in a long time,his wife and in-laws keep on saying bad words against me which i don't answer them back to avoid arguments. Can his wife file a criminal case against me and my baby? Can i also file a case against them for disturbing silence? can i aslo file a case to the father of my baby for support although he don't have a work? please help me.

Atty. Gerry T. Galacio said...

Under Article 176 of the Family Code, sole parental authority belongs to the mother. Even if the father singed the birth certificate, and even if the child is using the father’s surname, the child is still illegitimate. All the father has is visitation right.

Article 216 FC provides that:

In default of parents or a judicially appointed guardian, the following person shall exercise substitute parental authority over the child in the order indicated:

(1) The surviving grandparent, as provided in Art. 214;

(2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and

(3) The child's actual custodian, over twenty-one years of age, unless unfit or disqualified.

Whenever the appointment of a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed.

What you should do is to file a petition in court for you or anyone in your family to be appointed as the guardian of the child. Please read “Rule on Guardianship of Minors A.M. No. 03-02-05-SC” in the Legal Procedures section of www.familymatters.org.ph

For free legal assistance, please contact the DOJ Action Center. The DOJAC acts on complaints, requests for assistance and legal queries of walk-in clients of the DOJ. For legal assistance please visit the Department of Justice Action Center (DOJAC) Main Office, Ground Floor, Multi-Purpose Building, Padre Faura Street, Ermita, Manila; Telephone no: 523-84-81; Email Address: dojac@doj.gov.ph or visit any Regional/Provincial/City Prosecution Offices in your town or city.

Atty. Gerry T. Galacio said...

worried mom,

Please read my post titled “Adultery, concubinage and psychological violence” (look for the link in the sidebar). Read also the comments and my replies to the comments.

In terms of support, please read my post “Support for abandoned woman and family”. If the man however is jobless, then it is useless to ask him for support. Once he is employed, then that is the time to make the legal moves.

Anonymous said...

hi.. my child is illegitimate and is using his father's surname. Is there any chance that she can use mine instead of her father?

Atty. Gerry T. Galacio said...

Please read my post titled “What surname should illegitimate children use? Problems and issues with RA 9255 and its implementing guidelines” (look for the link in the sidebar; please also read the comments and my replies to the comments).

Anonymous said...

hi attorney. Please enlighten me with my problem. Since I was a kid, i am using my father's surname. all my documents, including certificates, license, id's etc, i am using my father's surname. When I am planning to apply for passport, I found out that in my birth certificate, my i am using my mother's surname. I found out that I am born on the day they are not yet married. I also found out that my father has his first marriage long time ago. He and his first wife were not seeing each other and they have no communication for the past 27 years. How can I change my surname in my birth certificate? How can I apply for my father's surname? Please help me.

Atty. Gerry T. Galacio said...

Since your father was already married at the time he got married to your mother, you are illegitimate. Please read my posts titled “What surname should illegitimate children use? Problems and issues with RA 9255 and its implementing guidelines” (look for the link in the sidebar).

If your biological father signed your birth certificate OR issues an AUSF (Affidavit to Use the Surname of the Father), then you can use your father’s surname. Just go to the Local Civil Registrar of the town or city which issued your birth certificate and ask for the requirements of RA 9255.

Anonymous said...

My sisters and I, all legal-aged and legitimate children , recently found out that our father has a 3-year-old illegitimate child with a prostitute. He has been giving monthly support to the child (and we suspect that he has been giving financial support because he is being blackmailed by the prostitute's husband) although he claims he did not sign any documents proving the child's filiation. A house and lot has been given to the illegitimate childe and monthly financial support is given through bank deposits.No DNA tests have also been made to confirm that the child is indeed our father's. Our father says that in the child's birth certificate, the prostitute's legal husband was stated as the child's father. Our father owns a large amount of property. In the future, can the illegitimate child hold a claim to inherit from our father's properties? And supposing that the illegitimate child can prove his filiation, is there a legal way for us to prevent the illegitimate child from inheriting from our father? My father is still alive at this time. Can he transfer all his properties to us, his legitimate children via deed of sale so that the illegitimate child can no longer claim such properties upon our father's death?

Atty. Gerry T. Galacio said...

First of all, even if your father did not have a child with that prostitute, he could still be charged with violation of RA 9262 by that woman. Please take note that even if the sexual relation did not result into an offspring, an RA 9262 case can still be filed.

Article 175 in relation to Article 172 of the Family Code provides the ways by which the illegitimate filiation of the child can be proven. Your father’s acts of providing for the child can be used as a ground to prove the “open and continuous possession of the status of an illegitimate child”.

You said that the prostitute is married. This is in your father’s favor. Article 164 of the Family Code provides that a child born during the subsistence of a marriage is presumed to be legitimate. This means that the child is presumed to be that of the prostitute and her husband. Article 167 FC also provides that “the child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.”

Should the illegitimate child therefore try to claim later on his rights under Article 176 FC, your father and/or you and your siblings can use Articles 164 and 167 as defense.

However as I noted above, your father by his relationship with that prostitute has placed himself in a big legal mess, and has opened himself to a possible charge of RA 9262 (even if that alleged illegitimate child had not been born).
For free legal assistance, please contact the DOJ Action Center. The DOJAC acts on complaints, requests for assistance and legal queries of walk-in clients of the DOJ. For legal assistance please visit the Department of Justice Action Center (DOJAC) Main Office, Ground Floor, Multi-Purpose Building, Padre Faura Street, Ermita, Manila; Telephone no: 523-84-81; Email Address: dojac@doj.gov.ph or visit any Regional/Provincial/City Prosecution Offices in your town or city.

Anonymous said...

Hi Sir, please advice me what to do.
My father died last month (untimely death).My mom and my 2 brothers are now worried about my dad's half brother (illigitiamte) coz he is now claiming all the properties (inheritance)left by my dad, he is now taking over all the properties. What are we going to do? can we also claim our rights as bereaved family? My eldest brother is helping my uncle (half brother of my dad)in claiming all of it, in short my brother sides on my uncle. I cannot do anything coz im an OFW, its only my husband who's left in the Phil (coz he now resigned as OFW)w/ my mom and 3 sons. Please help us and advice us what to do.

Atty. Gerry T. Galacio said...

Upon your father’s death, his compulsory heirs are your mother, you and your siblings. Assuming there are no differences, the heirs can simply ask a notary-public to draw up an extra-judicial settlement. After this extrajudicial settlement has been notarized and the estate taxes have been paid, the Register of Deeds will then transfer the titles from your father’s name to the names of the compulsory heirs. Your uncle (half-brother of your father) is NOT a compulsory heir.

In order to protect your rights, your mother, you and your CPA-brother have to retain the services of a lawyer. This lawyer will first send a demand letter from you or your mother addressed to all the compulsory heirs. The demand letter is meant for all the heirs to come to an agreement as to how to divide the properties. If there is no agreement, then the lawyer will file a petition for the judicial settlement of your father’s estate. You have to do this at once so that your uncle will not have any opportunity to transfer the properties to his name.

If your mother is physically unable to oversee the filing of this case and attend the hearings, you can issue a Special Power of Attorney in favor of your husband. You husband can then pursue the case for you.

Anonymous said...

Hi Attorney Galacio,

I read your posts and thought you may be able to advise me correctly.

My father recently passed away, about a month now, and we've found out he had another family: his mistress and their two illegitimate children (13 and 8). My father signed both birth certificates saying the children were his. My father was an Indian national but a permanent resident of the Philippines, but did have not any employment on record. My parents were married in 1980, and my brother and I were both born shortly after in 1982 and 1984. There no properties under my father's name, but my Mom owns a few, which were acquired during the marriage up to 1992. Two years ago my father lost his leg to diabetes and was very ill for almost 5 years, and completely depended on my Mom.
At my father's wake at a funeral home, the other family showed up, even though the mistress was advised verbally by a relative (not us) she was not permitted to attend, but she still showed up with the two illegitimate children (who showed up to the wake a few days prior). We asked her to leave, she started shouting and causing a scene, I shoved her and my Mom kicked her (not hard) in her butt. We have it on video, it was not serious at all. She is claiming loss of consciousness and dizziness, but her medical note from the City Health is dated 2 days after the incident, and she was only prescribed rest for 3 days. Also, the same night of the incident after we had gone home to shower, etc, she came back with friends to cause trouble, but the guard asked her to leave. She is now charging my mother and I with physical injuries. At the first meeting with the Barangay officials the mistress said that since my father was a Sikh, having more than one wife is acceptable in India. We've just attended the third meeting with the Barangay officials. The mistress wants us to apologize for what happened, no other demands have been made yet.

Questions:
1. Does the mistress and/or the illegitimate children have right to any of my Mom's property?
2. If they do have a right, are there any steps we can take to prevent them from getting anything? Like transferring all her assets to my brother's and my name?
3. Can we charge the mistress with adultery/concubinage?
4. Can we sue the mistress, or take any legal action against her for the disturbance at my father's wake?
5. If we apologize, will that be an admission on our part? and can she take further legal action?
6. If we make her sign an instrument stating we will apologize if they do not seek any support/claims, will that hold up against future claims?

I know there's a lot of questions, but I live in a small town and the lawyers here are not very good.

Sincerely,
V

«Oldest ‹Older   1 – 200 of 241   Newer› Newest»