While a mother may wish for her child born out of wedlock to adopt the surname of a new partner, i.e., the biological father, the law, nevertheless, upholds a presumption of legitimacy in favor of the legal husband, and contesting paternity requires a judicial decree.

Dear Atty. Duran,

ood day! I would like to seek your legal advice regarding my current situation.

My former partner and I have been separated for seven (7) years due to his infidelity. He now has a six-year-old daughter with another woman. Recently, I entered into a new relationship with a foreign partner, and I am currently pregnant.

I would like to ask if it is possible for my child to use my foreign partner’s last name. Additionally, I am planning to file a petition for annulment on the ground of psychological incapacity.

In this regard, may I inquire whether allowing my child to use my foreign partner’s surname is allowed under Philippine law?

Thank you, and I look forward to your guidance.

Woman Seeking a Fresh Start

Dear Woman Seeking a Fresh Start, 

Thank you for your inquiry. Your situation involves complex provisions on marriage, paternity, and filiation under the Family Code, thus necessitating a strategic legal approach to ensure your decisions will be both well-informed and legally sound.

The Family Code of the Philippines

In the Philippines, the Family Code (E.O. 209) is the primary law that governs family relations, including the requirements for marriage, grounds for its dissolution, and the legal status, rights, and obligations of parents and children. It serves as the legal framework for determining the legitimacy of children and the specific conditions under which a marriage may be declared void or annulled. 

Presumption of Legitimacy

According to Article 164 of the Family Code, “Children conceived or born during the marriage of the parents are legitimate.” Because your marriage has not yet been legally dissolved by a court, the law presumes that your husband is the father of the child you are currently carrying, regardless of your seven-year separation.

While the law protects the child’s legal status, Article 167 provides that the child retains the status of legitimacy notwithstanding any declaration by the mother denying such legitimacy or any judgment declaring her an adulteress. 

However, such legitimacy of the child may be impugned if it was physically impossible for the husband to have sexual intercourse with the wife within the first 120 days of the 300 days before childbirth (including the fact that they were living separately in such a way that intercourse was impossible), due to biological or scientific reasons, or if in artificial insemination, parental consent was vitiated by mistake, fraud, violence, intimidation, or undue influence (Article 166). 

Under Articles 170 and 171 of the Family Code, this action, however, is strictly personal to the legal husband, or in exceptional cases his heirs, and must be filed within specific prescriptive periods (one to three years depending on the place of birth or knowledge of the event). Equally, the Court ruled, in Concepcion vs. Court of Appeals, G.R. No. 123450 (08-31-2005), that a mother has no legal standing to impugn the legitimacy of her own child born during a valid marriage.

Restrictions on the Use of Your New Foreign Partner’s Surname

According to Article 176 of the Family Code, as amended by Republic Act No. 9255, illegitimate children shall use the surname of their mother, or if paternity is expressly acknowledged, then they may also use their father’s surname. Such acknowledgement may be annotated at the back of the Certificate of Live Birth, in a separate document (e.g., Affidavit of Admission of Paternity or AAP), or in a private handwritten instrument (PHI).

Because of the presumption of legitimacy, this provision does not apply where a child is born to a married mother, as the law considers the child to be that of the legal husband. Only once the child’s legitimacy is successfully impugned by the proper party may the alleged father—in your case, your foreign partner—validly acknowledge the child in the civil registry.

I hope this provides a clear explanation and initial guidance. For any further clarification or assistance with family law issues in the Philippines, feel free to contact our team at Duran & Duran-Schulze Law. We are located just in Bonifacio Global City (BGC), Taguig, Metro Manila. You may call us at (02) 8478-5826 (landline) or +639171940482 (mobile), or email info@duranschulze.com.