457 Phil. 560; 101 OG No. 34, 5781 (August 22, 2005)
CARPIO MORALES, J.:
Article 366. A natural child acknowledged by both parents shall principally use the surname of the father. If recognized by only one of the parents, a natural child shall employ the surname of the recognizing parent. (Emphasis and underscoring supplied)Though conceding that the appeal had valid arguments, Civil Registrar General Tomas P. Africa, by letter[7] of December 26, 1994, denied the appeal on the ground that neither the Office of the Civil Registrar General nor any of the Civil Registry Offices in the country is given the power or discretion to effect an administrative change of entry in the civil register.
By Decision[11] of March 11, 1996, the Court of Appeals held that Title XIII, Book I of the New Civil Code on the Use of Surnames was not repealed by the Family Code, citing its repealing clause or Article 254. It held, however, that the Local Civil Registrar of Manila is not allowed to administratively correct the entry in the Civil Registry of the City by deleting and changing petitioner's family name LEONARDO to FERNANDEZ upon the submission of an affidavit of her father recognizing her. It went on to declare that petitioner could change her surname by judicial action pursuant to Rule 108 of the Rules of Court.
- Whether or not Article 176 of the Family Code be given a mandatory application in case a child was born outside of wedlock even though the putative father acknowledges said child as his and agrees and allows his child to bear his surname [and]
- Whether or not a judicial proceeding is required for the use of [petitioner's] surname.
IF PETITIONER, AS HELD IN THE 11 MARCH 1996 DECISION OF THE HONORABLE COURT OF APPEALS, MAY USE HER NATURAL FATHER'S SURNAME, THE COROLLARY MATTER TO DETERMINE IN THIS CASE IS WHETHER OR NOT RESORT TO RULE 108 OF THE RULES OF COURT REQUIRING JUDICIAL PROCEEDING AND PUBLICATION, IS THE PROPER ACTION TO BE TAKEN - AS DIRECTED IN THE COURT OF APPEALS' DECISION - TO ENABLE THE PETITIONER TO USE HER NATURAL FATHER'S SURNAME.[13]Ubi jus, ibi remedium.[14] When there is a right, there is a remedy. Conversely, if there is no right, there is no remedy as every remedial right is based on a substantive right.
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. (Emphasis and underscoring supplied)The rule applies even if petitioner's father admits paternity. So Mossesgeld v. Court of Appeals holds:[15]
Article 176 of the Family Code of the Philippines provides that "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." This is the rule regardless of whether or not the father admits paternity. Consequently, the Local Civil Registrar correctly refused to register the certificate of live birth of petitioner's illegitimate child using the surname of the alleged father, even with the latter's consent . . . (Emphasis and underscoring supplied)Contrary to the ruling of the Court of Appeals, Article 176 of the Family Code repealed Title XIII, Book I of the New Civil Code regarding the Use of Surnames. Article 254 of the Family Code reads:
Article 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I Republic Act 386, otherwise known as the Civil Code of the Philippines, as amended, and Articles 17, 18, 19, 27, 28, 29, 30, 31, 39, 40, 41 and 42 of Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code, as amended and all laws, decrees, executive orders, proclamations, rules and regulations, or parts thereof, inconsistent herewith are hereby repealed. (Emphasis and underscoring supplied)Thus this Court declared in Mossesgeld:
The Family Code has effectively repealed the provisions of Article 366 of the Civil Code of the Philippines giving a natural child acknowledged by both parents the right to use the surname of the father. The Family Code has limited the classification of children to legitimate and illegitimate, thereby eliminating the category of acknowledged natural children and natural children by legal fiction. (Emphasis and underscoring supplied)Since petitioner was born an illegitimate child after the Family Code took effect, she has no right to use her father's surname.