Tag Archive: Legitimation due to Subsequent Marriage


06 - 14

Mercy is married to Joel and they have three kids, all minors.  In 2015, they separated, with Joel taking their children with him to the province where they can continue their studies while he tended the family’s farm as his means of income.  Mercy was left in Manila with her parents; she was working as a call center agent at the time of their separation.

In 2016, Joel filed for annulment.  Around the same time the papers were hand-carried by a court personnel to Mercy’s house, she was already dating a new guy from work.  Not long after, Mercy broke the news to her family that she is pregnant.

Her boyfriend, an unmarried man, is willing to acknowledge Mercy’s baby.  Their plan is to get married as soon as Mercy’s previous marriage is officially annulled; they will have their baby legitimized after they get married.

Will Mercy and Joel’s plans succeed?  Will this not cause problems or confusion on the child’s birth right?  Can the child use his biological father’s last name while his mother is still married to her previous husband?

According to the Family Code, a child born to a married woman is considered legitimate, even if the mother declares against its legitimacy, or even if she has been sentenced as an adulteress (Article 164 and Article 167).

Given these insights, Mercy’s boyfriend is not legally entitled to acknowledge the child because Mercy is still married to Joel (pending decision of filed annulment case).  Moreover, letting the child use Mercy’s boyfriend’s last name will cause further confusion in the child’s legitimacy and birth right.  To make matters worse, Mercy’s child is not qualified to be “legitimized due to subsequent marriage” because of the existence of her marriage with Joel at the time of the child’s birth.

Only if Joel, being Mercy’s legal husband at the time of the child’s birth, disputes the child’s legitimacy, will Mercy be able to declare the child as ‘illegitimate’; otherwise, her child remains ‘legitimate’ and registered as Joel’s child.

What are the provisions for remarrying after an annulment has been approved?

It would have been best for Mercy to have waited until the annulment was approved before she and her boyfriend decided to have a child.  Technically, there is even a prescriptive period of 300 days after the annulment has been handed down, before Mercy bears another child, if only to avoid any controversy on her child’s legitimacy.

Below are the specific articles from the Family Code that will help us understand this provision better:

Article 168.  If the marriage is terminated and the mother contracted another marriage within 300 days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary:

(1) A child born BEFORE 180 days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within 300 hundred days after the termination of the former marriage;

(2) A child born AFTER 180 days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the 300 days after the termination of the former marriage.

It is also good to note that getting married immediately after the issuance of the decree of annulment may be considered a crime of premature marriage; this is punishable under Article 351 of the Revised Penal Code.

Sources:

www.gov.ph

http://www.manilatimes.net

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06 - 05 (2)

Minerva was already 23 years old when she learned that her father is married with children before she was born.  She learned about it the hard way – when she landed her first job, her supervisor turned out to be her father’s eldest son from his previous marriage, making him her half-brother.

She did her research and found out that her father’s marriage with his previous wife is still in effect; he had not filed for an annulment and in fact, has been sending financial support for his children while staying with Minerva and her mom!

What proved to be more difficult and confusing for Minerva is the fact that her status in her birth certificate is ‘Legitimated’ (due to subsequent marriage).  As far as she knows, she was born before her father (who was presumed to be single then) and mother were ‘married’.  They got married when Minerva was 7 years old, she even stood as flower girl during their wedding!

Now that it looks like her father is not even legally capable of ‘marrying’ her mother in the first place, what does that make of her ‘legitimation’?

What is ‘Legitimation’?

According to the Philippine Statistics Authority (PSA) website, legitimation is a remedy by means of which those who in fact were not born in wedlock and should, therefore, be considered illegitimate, are by fiction, considered legitimate, it being supposed that they were born when their parents were already validly married.

Who can be ‘Legitimated’?

Legitimation may be done for children who were conceived before their biological parents were married, provided that their parents were not disqualified by any impediments to marry each other.

For a child to be considered legitimated by subsequent marriage, it is necessary that:

  • The parents could have legally contracted marriage at the time the child was conceived;
  • That the child has been acknowledged by the parents before or after the celebration of their marriage; and
  • The acknowledgment was made with the consent of the child, if age or with the approval of the court, if a minor, unless it has been made in the certificate before a court of record, or in any authentic writing.

In all aspects, Minerva’s legitimation would have been legal and binding except for the fact that her father is married to another woman at the time he ‘married’ Minerva’s mother.  Effectively, this invalidates Minerva’s legitimation because the marriage between her parents is invalid.  In fact, she is not even qualified for legitimation.

Can a legitimation be cancelled?

Yes it can be cancelled by filing a petition for cancellation before the court where the petitioner’s birth certificate was registered.  The petitioner will need the assistance and guidance of a lawyer.  When approved, the civil registrar shall again annotate in the birth certificate that the ‘legitimation’ (also a previous annotation) is hereby cancelled.

Source: www.psa.gov.ph

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02-07

A child born out of wedlock is an illegitimate child.  Under the law, such children shall carry their mother’s last name on their birth certificates unless their father provides his consent to let the child use his last name.  In cases when the parents of an illegitimate child decide to marry later on, the child’s status is effectively changed to “legitimate”.  And as a legitimzied child, he or she is given the same entitlements as that of a legitimate child, retroacting to the time of the child’s birth.  This includes the child’s right to use her father’s surname.

So how come “legitimized” children, who have been using their father’s last name since after their parents got married (after their birth), are still required to execute an AUSF (Affidavit to Use Surname of Father) if they want to use their father’s last name on their passports?  (Otherwise, their passports shall bear the last name of the mother as if their birth right is still illegitimate).

When a child is “legitimized”, certain procedures must be undertaken in order to apply the child’s father’s last name on the child’s birth certificate.  Unless the necessary amendments and attachments have been officially applied on the child’s birth certificate, her right to use her father’s last name may still be questioned.

When applying for a passport, the DFA requires a copy of the applicant’s PSA Birth Certificate.  This shall be their basis for the person’s information, including and most especially, the person’s name.  If the birth certificate is not supported by documents attesting to the fact that the person has been “legitimized”, he or she may not be able to use the father’s last name on his passport.

If you were legitimized (due to subsequent marriage of your parents), you need to accomplish the following in relation to your use of your father’s last name:

a. Visit the office of the Local Civil Registrar where your birth was registered and secure the following documents:

  • Affidavit of Paternity/Acknowledgment (certified photocopy)
  • Joint Affidavit of Legitimation
  • Certification of Registration of Legal Instrument (Affidavit of Legitimation)
  • Certified True Copy of Birth Certificate with remarks/annotation based on the legitimation by subsequent marriage.

b. Verify that the birth certificate (of the legitimated child) and the marriage contract of the parents have been certified by the PSA.  If not, secure it from the city or municipal Civil Registrar’s Office where the child was registered and where the parents were married.

When applying for a passport and you would like to use your father’s last name:

  • Bring a copy of your PSA Birth Certificate.
  • Check to make sure that your copy includes an annotation regarding your new status as legitimated.
  • If the legitimized child is still a minor, the mother must be present during the passport application.
  • If the mother is abroad, the person accompanying the child (including the father), must be able to execute the following:
    • Affidavit of Support and Consent
    • Special Power of Attorney authenticated by the Philippine Embassy in the country where the mother resides.

A legitimized child may use her father’s last name on her passport provided her PSA Birth Certificate bears the necessary annotations regarding her legitimation and documented proof that the father has allowed the child to use his last name (AUSF, Affidavit of Support and Consent).

Sources:

http://www.dfa.gov.ph/

https://psa.gov.ph/content/application-requirements

http://www.manilatimes.net/illegitimate-child-has-to-use-mothers-surname/230283/

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31

Parents who have children born before they were married can have their children legitimized by executing an Affidavit of Legitimation.  This must be submitted to the Office of the Civil Registrar of the child’s birthplace.  Court decrees, on the other hand, are legal instruments concerning the status of a person such as Admission of Paternity, Legitimation, Affidavit to Use the Surname of the Father (AUSF), and the like.

Registration of court decrees as well as requests for CTCs of annulment, adoption, correction of entry, change of name, presumptive death, and the like are handled at Counter 7 of the Quezon City Hall.  On the other hand, Court Decrees with finality and annotation as well as Legitimation papers must be submitted to Counter 15.

The following are the requirements when filing for Legitimation at the Quezon City Hall as well as the fees to be paid for other cases such as annulment of marriage, adoption, etc.

Requirements for Legitimation:

  1. Joint Affidavit of Legitimation signed by both parents.
  2. Certified True Copy of Marriage Contract
  3. Certified True Copy of Birth Certificate
  4. Admission of Paternity/Acknowledgment of Father
  5. Certificate of No Marriage (CENOMAR) from NSO.

Other requirements will be on a case-to-case basis.  Allow two to four working days as processing time; you will be given a claim stub for your filed request.

Registration Fees:

  1. Annulment of marriage – PHP 500.00
  2. Correction of entry or change of name – PHP 400.00
  3. Per registration of supplementary reports or documents as additional data – PHP 100.00
  4. Legalization of Aliens – PHP 500.00
  5. Local Adoption – PHP 1,000.00
  6. Legitimation – PHP 400.00
  7. Foundling – PHP 500.00
  8. Naturalization – PHP 1,000.00
  9. Foreign Adoption – PHP 1,000.00
  10. Repatriation – PHP 1,000.00
  11. Presumptive Death – PHP 1,000.00
  12. Per registration of other documents – PHP 300.00

Source: http://quezoncity.gov.ph/index.php/qc-services/requirements-a-procedures/261-civilregguide

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Legitimation

When a child is born out of wedlock, his or her birthright is marked as illegitimate.  The child carries the last name of his mother unless he is acknowledged by his father on paper or his parents decide to get married later on.  Should it be the latter, the child is able to carry the father’s last name by virtue of a legitimation process.  This means that the illegitimate child’s birthright shall be changed to legitimate without the need of a court order.

Such is the story of Dess, an illegitimate child whose parents got married before she turned 10 years old.  Her parents worked on her legitimation right after they got married so that Dess can rightfully carry her father’s last name.  However, when they requested for a copy of her PSA birth certificate to complete her college graduation document requirements, they found out that no changes on her last name, nor any annotations, were applied on her birth certificate. She was still marked as illegitimate and still bears her mother’s maiden last name as her last name.

What could have happened?

Dess and her parents already had a copy of her Certificate of Legitimacy.  This was the document they received from the LCR when they filed for her legitimation.  On their copy, there is an annotation that read:

Legitimated by subsequent marriage of parents (mother’s maiden name) and (father’s name) on (date of marriage) at (place of marriage) under Reg. No. XXXX-XXX.  Hence, the child should now use the name (name of child using father’s surname).

Dess has been using the name Odessa Castro Talajib – Talajib being her father’s last name – since she was 11 years old.

Dess’ parents should have submitted to the PSA the Certificate of Legitimacy that they got from the LCR when they filed for her legitimation.  This would have triggered PSA’s certification and updating of Dess’ records in PSA’s files.  In other cases, the LCR where the legitimation was applied for, may also submit the Certificate of Legitimacy on the client’s behalf.  You just need to make constant follow-ups to make sure that the documents are duly processed.

For our information, here is the list of requirements when filing the Certificate of Legitimacy at the PSA:

Legitimation by Subsequent Marriage

  1. Secure the following documents from the city / municipal Civil Registrar’s Office (C/MCR) where the birth of the child was recorded:
    • Affidavit of Paternity / Acknowledgement (Certified Photocopy)
    • Joint Affidavit of Legitimation
    • Certificate of Registration of Legal Instrument (Affidavit of Legitimation)
    • Certified True Copy of Birth Certificate with remarks/annotation based on the legitimation by subsequent marriage.
  2. Verify the original birth certificate at the National Statistics Office (NSO).  If negative result, secure it from the C/MCR Office where the child was originally registered (certified photocopy).
  3. Verify the marriage contract of parents at NSO.  If negative result, secure it from the C/MCR Office where the marriage was solemnized (certified true copy).

Source: https://psa.gov.ph/content/application-requirements

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