DOJ OPINION NO. 011, s.

1990 2nd Indorsement January 17, 1990

Respectfully returned to Mr. Tomas P. Africa, Civil Registrar General, National Statistics Office, Manila, the within letter of the Second Secretary of the Embassy of the Federal Republic of Germany requesting for clarification/opinion on the status of the daughter of one Consuelo Mamangon Haarnagel. The facts presented are as follows: that a certain Consuelo Haarnagel, nee Mamangon, who is a Filipino citizen, was married to a German national; that they were divorced on April 2, 1987 before the effectivity of the Family Code on August 3, 1988; that on August 12, 1988 Mrs. Haarnagel gave birth to a daughter; and that on September 5, 1988, the child was recognized by her biological father, one Charles Scauzzo, an American national. prcd In relation to the above presented facts, you pose the following queries: "1. Considering that Mrs. CONSUELO MAMANGON HAARNAGEL is a divorcee, is her child a natural child or an illegitimate child other (than) natural? "2. What surname will the child carry? Considering that the child was born when the Family Code has already taken effect, and Article 176 of said Code provides that illegitimate children shall use the surname of the mother, what is now the considered surname of the mother MAMANGON which is her surname or HAARNAGEL which is the surname of her former husband?" The pertinent provisions of the law are as follows: Family Code "Art. 26.All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 36, 37 and 38. (71a) "Where a marriage between a Filipino and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law. (n) (as amended by E.O. No. 227, dated July 17, 1987)" "Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws. (n)" "Art. 164. xxx Children conceived or born during the marriage of the parents are legitimate. xxx xxx

"Art. 165. Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this Code. (n)."

"Art. 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 of a legitimate child. (278a): As regards the first query, it is believed that the daughter of Mrs. Haarnagel is an illegitimate child. At the outset, it should be mentioned that the Civil Code provisions on filiation have been superseded by the provisions of the Family Code which limits the classification of children to legitimate and illegitimate thereby eliminating acknowledged natural children and natural children by legal fiction (Sempio-Dy, Handbook on the Family Code of the Philippines, p. 228). Considering that the subject child was conceived and born outside a valid marriage, regardless of the validity or invalidity of the divorce secured prior to the effectivity of the Family Code, the daughter of Mrs. Haarnagel is an illegitimate child pursuant to the express provision of the aforequoted Section 165 of the Family Code, the law in force at the time of the child's birth. The fact that the child was recognized by her biological father, one Charles Scauzzo, an American national, would not affect her status since under the Family Code, legitimation can only take place by a subsequent valid marriage between parents. prcd As regards the second query, it is our opinion that the child will carry the name presently being used by the mother. Under Article 176 of the Family Code, illegitimate children shall use the surname and shall be under the parental authority of the mother. We have had occasion to rule that a Filipino woman who was validity divorced abroad by her alien husband is allowed to use her former family name (i.e. the name she employed prior to her marriage). The right or privilege of the wife to use the husband's surname springs from the fact of marriage and when the marriage is dissolved, the basis for the continued use by the wife of her husband's surname ceases (Sec. of Justice Op. No. 10, s. 1989). It was further stated in the aforecited opinion that ". . . the idea of the inclusion of the second paragraph of Article 26 is to avoid the absurd situation of the Filipino being still legally married to his or her alien spouse, although the latter is no longer married to the Filipino spouse because he or she had obtained a divorce abroad which is recognized by his or her national law. It will, likewise, solve the problem of many Filipino women, who, under the Civil Code, are still considered married to their alien husband even after the latter have already validly divorced them under their (the husband's) national law and perhaps have already remarried (Alicia V. Sempio-Dy, Handbook on the Family Code of The Philippines, p. 27)." Wherefore, in the case under consideration, the child should carry the name prior to the marriage of her mother, i.e. Mamangon. Please be guided accordingly. FRANKLIN M. DRILON Secretary