Use of Surname by illegitimate or nonmarital children, A176 Family Code
1. Use of Surname by illegitimate or nonmarital children
Article 176. Illegitimate children shall use the surname x x x of their mother x x x However, illegitimate children may use the 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. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. x x x (As amended by R.A. 9255)
Viña v. Oteyza, G.R. No. 273935, August 18, 2025, Per Leonen, SAJ.:
• The Court of Appeals’ approval of the change of name is not only procedurally flawed but also lacked legal basis.
• In granting respondent’s prayer to change Brandon’s name from “Brandon Tyler Ty Viña” as appearing on his certificate of live birth to “Brandon Tyler Ty,” the Court of Appeals merely cited Article 176 of the Family Code, as amended, without any discussion on how the cited provision applied to Brandon.
• The Court of Appeals seemed to have ignored the second sentence of Article 176, which permits nonmarital children to use the surname of their father provided that the father expressly recognized their filiation through the record of birth appearing in the civil register, or through an admission in a public document or private handwritten instrument made by the father. There was no mention that petitioner did not recognize his filiation with Brandon for the Court of Appeals to grant the prayer for change of name.
• Respondent herself stated in her appeal before the Court of Appeals that Brandon was a nonmarital child, being born before she got married to petitioner.As a nonmarital child at the time he was born, Brandon should have used the surname of his mother pursuant to Article 176 of the Family Code, as amended. However, the fact that Brandon was able to use the surname of his father means that petitioner expressly recognized his filiation with Brandon.
• That petitioner recognized his filiation with Brandon is strengthened by the fact that petitioner vehemently opposed respondent’s petition for adoption with an application for Brandon’s change of name. Respondent also never alleged that petitioner did not recognize his filiation with Brandon. The records reveal that Brandon was aware that petitioner was his father.Petitioner also provided financial support for Brandon and was allowed to visit and spend time with his child.
• Considering that Article 176 of the Family Code allows nonmarital children to use the surname of their father, provided that the father made an express recognition of their filiation, then there would have been no reason for the Court of Appeals to have granted respondent’s prayer for her minor child’s change of name.
• Respondent’s contention regarding the absence of an affidavit to use the surname of the father as required by the Revised Implementing Rules and Regulations of Republic Act No. 9255is misplaced. The Rulesapply to nonmarital children whose births were unregistered or previously registered under the surname of the mother. Here, the child’s birth certificate is already registered under the surname of the father, and it is the mother who now wants to change the surname of her child after her marriage with the father was nullified.
a. Middle name
Applying these laws, an illegitimate child whose filiation is not recognized by the father bears only a given name and his mother’s 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 illegitimate child. (In Re: Petition for Change of Name, G.R. No. 159966, March 30, 2005, Per Tinga, J.)
Accordingly, the registration in the civil registry of the birth of such individuals requires that the middle name be indicated in the certificate. The registered name of a legitimate, legitimated and recognized illegitimate child thus contains a given or proper name, a middle name, and a surname. (In Re: Petition for Change of Name, G.R. No. 159966, March 30, 2005, Per Tinga, J.)
