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. (Please read the related post If a wife gets pregnant by a man not her husband, will the child be legitimate or illegitimate?)

(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) If the mother of an illegitimate child dies, who will exercise parental authority?

(9) 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.

If the mother of an illegitimate child dies, who will exercise parental authority?

An OFW from the Middle East e-mailed me asking about his right to his illegitimate children since the mother has died. He said that he wants custody of his children, but the maternal grandparents refuse to let the children be with him.

Article 212 of the Family Code states: “In case of absence or death of either parent, the parent present shall continue exercising parental authority.”

I stand to be corrected, but I do not think that Article 212 applies in this situation. Notice that it says “the parent present shall continue exercising parental authority.” But under Article 176 of the Family Code, sole parental authority belongs to the mother. The biological father does not have any parental authority, and so, in case of the mother’s death, what parental authority can he “continue” to exercise?

I think Article 214 of the Family Code provides a possible answer. It says:
In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the same consideration mentioned in the preceding article, shall exercise the authority.
The question is which grandparents – the maternal grandparents or the paternal grandparents? Again based on Article 176, I will say that it is the grandparents on the illegitimate child’s mother side who should exercise parental authority.

In the situation of that OFW I told you about above, he can of course file a petition in court for parental authority to be granted to him. He can file a petition to this effect or file for adoption of his illegitimate children under RA 8552. Either way, if the court grants his petition, he will have parental authority over his children.