Bar Q and A #13

1. Under Art. 172 in relation to Art. 173 and Art. 175 of the FC, the filiation of illegitimate children may be established in the same way and by the same evidence as legitimate children. Art. 172 provides that 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.

2. No. Since Danilo has already been adopted by Carlos, he ceased to be an illegitimate child. An adopted child acquires all the rights of a legitimate child under Art, 189 of the FC.

To be able to inherit, the illegitimate filiation of Nestor must have been admitted by his father in any of the following:

  1. The record of birth appearing in the civil register,

  2. A final judgment,

  3. A public document signed by the father, or

  4. A private handwritten document signed by the (Art. 175 in relation to Art. 172, FC)

The child is legitimate of the second marriage under Article 168(2) of the Family Code which provides that a "child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within three hundred days after the termination of the former marriage."

Under the facts stated, X and Y are legitimate children of B and G. E is the legitimate children of B and G. E is the legitimated child of B and G. F is the illegitimate child of B and C as legitimate children of B and C, X and Y have the following rights:

1) To bear the surnames of the father and the mother, in conformity with the provisions of the Civil Code on surnames;
2) To receive support from their parents, their ascendants, and in proper cases, their brothers and sisters, in conformity with the provisions of the Family Code on Support; and
3) To be entitled to the legitime and other successional rights granted to them by the Civil Code. (Art. 174, Family Code) E is the legitimated child of B and G. Under Art.
177 of the Family Code, 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. E will have the same rights as X and Y. F is the illegitimate child of B and
G. F has the right to use the surname of G, her mother, and is entitled to support as well as the legitime consisting of ½ of that of each of X, Y and E. (Art. 176, Family Code)

a) Yes, Joey has a cause of action against Tintin. While the Family Code has repealed the provisions of the New Civil Code on proof of filiation, said repeal did not impair vested rights. Joey was born an illegitimate child in 1981. As an illegitimate child, he had acquired, at birth, the right to prove his filiation in accordance with the provisions of the New Civil Code in force at that time. Under the New Civil Code, an illegitimate child may file an action to compel his recognition even after the death of the putative father when the father died during the minority of the child. While the Family Code has repealed this provision, it will not operate to prejudice Joey who has already acquired a vested rightthereto.

b) The defenses of Tintin are not tenable. The fact that Joey’s birth certificate does not show that Steve was his father is of no moment. The law does not require such mention. Besides, the New Civil Code provides that when the father did not sign the birth certificate, his name should not be disclosed therein. While it is true that capacity to inherit is determined at the time of the death of the decedent and that filiation is an element of capacity to inherit, filiation is determined not at the time of the death of the decedent but at the time of the birth of the child who is born with a status. Such status may subsequently change such as in legitimation, but legitimation is deemed to retroact to the time of birth. In the same manner, recognition when given voluntarily by the father, or decreed by the court, retroacts to the time of the child’s birth.

c) If Joey filed the action and died when the New Civil Code was still in force, his action would be dismissed because the action was not transmissible to the heirs of the illegitimate child. (Conde v. Abaya, 13 Phil. 249 [1909]) But if the action was filed after effectivity of the Family Code, and Joey died during the pendency of the action for recognition, it should not be dismissed.

Under the present Family Code, an action commenced by a legitimate child to claim his legitimate filiation is not extinguished by his death. The Family Code makes this provision applicable to the action for recognition filed by an illegitimate child. Joey has the right to invoke this provision because it does not impair any vested rights. (Art. 175, Family Code)

Yes, an illegitimate child, upon adoption by her natural father, can use the surname of her natural mother as her middle name. The Court has ruled that there is no law prohibiting an illegitimate child adopted by her natural father to use, as middle name, her mother's surname. What is not prohibited is allowed. After all, the use of the maternal name as the middle name is in accord with Filipino culture and customs and adoption is intended for the benefit of the adopted. (In Re: Adoption of Stephanie Nathy Astorga Garcia, G.R. No. 148311, March 31, 2005)

a) No. He has no right to compel Rona to use his surname. The law does not give him the right simply because he gave her support. (RA 9255)

Under the Family Code, an illegitimate child was required to use only the surname of the mother. Under RA 9255 (An Act Allowing Illegitimate Children To Use The Surname Of Their Father, Amending For The Purpose Article 176 Of Executive Order No. 209, Otherwise Known As The "Family Code Of The Philippines"), otherwise known as the Revilla law, however, the illegitimate child is given the option to use the surname of the illegitimate father when the latter has recognized the former in accordance with law. Since the choice belongs to the illegitimate child, Rodolfo cannot compel Rona, if already of age, to use the surname against her will. If Rona is still a minor, to use the surname of Rodolfo will require the consent of Rona's mother who has sole parental authority over her.

b) No, because Rodolfo has no parental authority over Rona. He who has the parental authority has the right to custody. Under the Family Code, the mother alone has parental authority over the illegitimate child. This is true even if the illegitimate father has recognized the child and even though he is giving support for the child. To acquire custody over Rona, Rodolfo should first deprive Nanette of parental authority if there is a ground under the law, and in a proper court proceeding. In the same action, the court may award custody of Rona to Rodolfo if it is for her best interest.

ZMN was legitimated by the subsequent marriage of RN and DM because at the time he was conceived, RN and DM could have validly married each other. Under the Family Code children conceived and born outside of wedlock of parents who, at the time of the former's conception, were not disqualified by any impediment to marry each other are legitimated by the subsequent marriage of the parents.

No, Gianna will not be legitimated. While the court may have declared the marriage void ab initio and therefore, no marriage took place in the eyes of the law, Gianna will still not be legitimated. This is because at the time she was conceived and born her biological parents could not have validly married each other. For their marriage to be valid, the court must first declare the first marriage null and void. In the problem, Gianna was conceived and born before the court has decreed the nullity of her mother’s previous marriage.