Articles 175 to 176 FAMILY CODE (Paternity and Filiation)

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Cleotilde Ilagan
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FAMILY CODE OF THE PHILIPPINES

TITLE VI: PATERNITY AND FILIATION

Chapter 3. Illegitimate Children

Article 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children.

The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent. (289a)

Filiation of illegitimate children may establish as follows:

Art. 172

ü  Record of birth appearing in the civil register or final judgment; or

ü  An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned;

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

§  The open and continuous possession of the status of a legitimate child; or

§  Any other means allowed by the Rules of Court and special laws.

Art. 173

ü  Claim for legitimacy 

Ø  May be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during his minority or in state of insanity. (5 years to institute action)

Art. 172 paragraph 2

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

ü  Article 172 paragraph 2 is an exception because if the putative parent is already dead, he can no longer talk or defend his/herself.

Illustration:   

§  A and B have an illegitimate child C born on 1988.

§  A died in 2010. C cannot go to Court anymore to establish filiation because of the death of A.

§  But if A died when C is still a minor, he has the right to go to court to establish filiation.

Marquino vs. IAC

GR No. 72078, June 27, 1994

52 SCAD 425

Eustiquio Marquino and Maria Terenal-Marquino (wife) survived by Luz Marquino, Ana Marquino and Eva Marquino “legitimate children” (Petitioners)

Bibiana Romano-Pagadora survived by Pedro, Emy, June, Edgar, May, Mago, Arden and Mars Pagadora (Respondents)

FACTS:

Respondent Bibiana filed action for Judicial Declaration of Filiation, Annulment of Partition, Support and Damages against Eutiquio.  Bibiana was born on December 1926 allegedly of Eutiquio and in that time was single.  It was alleged that the Marquino family personally knew her since she was hired as domestic helper in their household at Dumaguete.  She likewise received financial assistance from them hence, she enjoyed continuous possession of the status of an acknowledged natural child by direct and unequivocal acts of the father and his family.  The Marquinos denied all these.  Respondent was not able to finish presenting her evidence since she died on March 1979 but the sue for compulsory recognition was done while Eustiquio was still alive.  Her heirs were ordered to substitute her as parties-plaintiffs. 

Petitioners, legitimate children of Eutiquio, assailed decision of respondent court in holding that the heirs of Bibiana, allegedly a natural child of Eutiquio, can continue the action already filed by her to compel recognition and the death of the putative parent will not extinguish such action and can be continued by the heirs substituting the said deceased parent.

ISSUES:

1.  Whether or not the right of action for acknowledgment as a natural child be transmitted to the heirs and 

2.  Whether or not Article 173 can be given retroactive effect.

HELD:

SC ruled that right of action for the acknowledgment as a natural child can never be transmitted because the law does not make any mention of it in any case, not even as an exception.  The right is purely a personal one to the natural child.  The death of putative father in an action for recognition of a natural child can not be continued by the heirs of the former since the party in the best position to oppose the same is the putative parent himself. 

Such provision of the Family Code cannot be given retroactive effect so as to apply in the case at bar since it will prejudice the vested rights of petitioners transmitted to them at the time of death of their father.

IAC decision was reversed and set aside.  The petition against Marquino’s were dismissed.

Article 176. 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. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. (287a)

Legitimate Children	Illegitimate Children
As to Use of Surname
Right to bear father’s surname	Generally required to use the mother’s surname Exception: If child’s 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 (R.A. No. 9255, Sec. 1).
As to Parental Authority
Joint authority of parents	Sole parental authority of mother
As to Support
Entitled to receive support from any of his or her direct ascendants and descendants in accordance with the priority set by law in Art. 195 and 199 of Family Code (Sta. Maria supra at 686).	Entitled to receive support only up to his or her grandparents or grandchildren as provided for in Art. 195, pars. 2 and 3 (Sta. Maria, supra at p.686).
As to Successional Right
Entitled to inheritance	Entitled to ½ of legitimate child’s inheritance

Definition of Terms:

Illegitimate – Children conceived and born outside a valid marriage. (Art. 165)

Legitimate – Children conceived or born during the marriage of the parents. (Art. 164)

Paternity and Maternity – is the civil status of a father / mother with regard to the child.

Filiation – Is the civil status of a child with regard to his parents. Nature or by adoption (Art. 163)

 Surname of illegitimate child

Article 176 and RA 9255

The provision of Article 176 of the Family Code states that:

·         illegitimate children shall use the surname of their mother

·         shall be under the parental authority of their mother

·         shall be entitled to support in conformity with this Code.

However, it has been amended by RA 9255, “An Act Allowing Illegitimate Children to Use the Surname of their Father” which took effect on February 4, 2004.  The law now provides that “illegitimate children may use the surname of their father when:

           ·         if their filiation has been expressly recognized by their father through the 

                record of birth appearing in the civil registrar;

           ·         the admission in a public document or private handwritten instrument is made

                by the father.

If the putative(supposed) father is not sure  whether or not he is really the father of the illegitimate child or children, the law provides that the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime and the legitime of each illegitimate child shall consist of one-half of the legitimate child.

Note that it is not the father or the mother who is granted by the law the right to dictate the surname of their illegitimate children because the law uses the word “may”.  Therefore, the illegitimate children has the right to decide whether or not they use the surname of the father.

It is best to emphasize once again that the yardstick by which policies affecting children are to be measured is their best interest (Grande vs. Antonio, GR 206248, February 18, 2014, Ponente: Associate Justice Presbitero Velasco, Jr.).

Case Digest : 

REPUBLIC OF THE PHILIPPINES, petitioner, vs. TRINIDAD R.A. CAPOTE, respondent. 514 SCRA 76, G.R. No. 157043 February 2, 2007

FACTS

        Respondent, Trinidad R. A. Capote (ad litem) filed a petition for change of name of her ward from Giovanni N. Gallamaso to Giovanni Nadores.  Giovanni N. Gallamoso is the illegitimate natural child  of Corazon P. Nadores and Diosdado Gallamoso who was born on July 9, 1982 before the Family Code took effect.  His mother used the surname of the natural father despite the absence of marriage.  From the time he was born up to the present, his father failed to take the responsibilities to him on matters of financial, physical, emotional and spiritual concerns.  Giovanni as a grown up, now fully aware of how he stands with his father and he desires to have his surname change to that of his mother's surname.  Giovanni's mother is intending to petition him to join her in the US and his continued use of the surname Gallamaso may complicate his status as natural child.

      The trial court granted the petition while the Republic of the Philippines, through the OSG, filed an appeal with a contention that the trial court erred in granting the petition in a summary proceeding.   CA affirmed the trial court's decision. Hence, this appeal.

ISSUE

     Whether or not the petition for change of surname be granted.

HELD

     The Supreme Court declared through its ponente, then Justice Corona that respondent's evidence sufficiently established that, under Art. 176 of the Civil Code, Giovanni is entitled to change his name as he was never recognized by his father while his mother has always recognized him as her child. A change of name will erase the impression that he was ever recognized by his father. It is also to his best interest as it will facilitate his mother’s intended petition to have him join her in the United States. The Court further held that they will not stand in the way of the reunification of mother and son.