LEGITIMATION OF BIRTH BY SUBSEQUENT MARRIAGE OF PARENTS1

• Authenticated Marriage Contract

• Certificate of No Marriage (CENOMAR) or Advisory on Marriages (CSR Fonrm
No. 5) from PSA-NSO
• Certificate of Live Birth of the Child (COLB)
• If not acknowledged, or if the name of the father is not entered in the
COLB, Submit proof of Filiation, like SSS/GSIS, ITR, PhilHealth, Pag-IBIG
Insurance Policy, Employment Record and execute the Affidavitn of Paternity/
Acknowledgment
• Joint Affidavit of Legitimation (AOL)
• Personal Appearance of both parents

1. Contact a lawyer who will prepare the Petition for correction of entry.

Lawyers shall file the Petition in the Regional Trial Court. The fee for filing the Petition in the Regional Trial Court is
2.
P160.00.

3. The Petition will be raffled and assigned to a branch of the Regional Trial Court.

The assigned Regional Trial Court shall issue an Order for the publication of its Order in a newspaper of general
4.
circulation for three consecutive weeks. Fee for publication varies.

5. The Order contains the date of the first hearing.

During the first hearing, the lawyer will present compliance of the jurisdictional requirements like publication of the
6.
Order in a newspaper of general circulation.

After establishing compliance with jurisdictional requirements, the petitioner will be presented in Court to testify. The
7.
Court may assign the Clerk of Court to receive evidence.

During the hearing, it is possible that an oppositor may appear contesting the Petition. If no oppositor appears, the Clerk
8.
of Court will receive the petitioner�s evidence.

1
http://www.mandaluyong.gov.ph/updates/downloads/files/charter%20final%202016.pdf
Legitimation must be recorded in certificate of live birth
0
BY THE MANILA TIMES ON NOVEMBER 29, 2013DEARPAO
Tweet
Dear PAO,

I would like to ask if there is any probability that I can change my surname into my father’s surname. I am now
using my mother’s surname. When I was born they were not yet married, because my father had an ongoing
petition from my grandparents in the USA. When I was two years old, Papa was diagnosed with cancer and
decided to marry my mother.

The problem is, my mom’s surname in their marriage contract was misspelled as “Villacorta” instead of
“Villanueva”. In my birth certificate though, my father was able to sign as my father. I am really hoping that you
will help me with my inquiry. If ever there is a way to do this, may I know the procedure? Thank you.
Sincerely,
OPZ
Dear OPZ,

Based on your letter, four facts may be established: First, you were born before your parents were married, and
the only reason your parents were not yet married was because your father had an ongoing petition in the United
States of America (USA).

Second, your father was able to acknowledge you as his child in your birth certificate. Third, soon after, your
parents eventually got married. Fourth, your mother’s surname was misspelled in the marriage contract.

We strongly advise that your mother should have her surname corrected in her marriage certificate, so there
will be no question when you apply for the use of your father’s surname. Republic Act (R.A.) No. 9048
authorizes the city or municipal civil registrar to correct a clerical or typographical error in an entry without
need of a judicial order. If it is evident in their marriage certificate that the misspelling was clearly a
typographical or clerical error, then she can avail of this remedy. Otherwise, she must file a petition in court
for the correction of her surname.

Since your parents had no legal impediment at the time of your birth and they subsequently got married, you
are considered as a legitimated child. A legitimated child is similar to a legitimate child, except for the fact
that you were born prior to your parents’ marriage. Article 177 of the Family Code defines legitimated children
as those “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…” Therefore, as far as the law is concerned,
you were legitimated when your parents got married.

For you to enjoy all the benefits of a legitimated child, including the right to use the surname of your
father, the fact of legitimation must be recorded in your certificate of live birth. In order to do this, you must
submit the following requirements to the civil registrar where your birth was recorded:

(1) Certificate of Marriage of your parents;

(2) Your Certificate of Live Birth;

(3) Acknowledgment, but you do not need this, as you were acknowledged by your father in your birth
certificate; and

(4) Affidavit of legitimation executed by both parents.

Once you submit all the requirements and the civil registrar sees that everything is in order, your original
name appearing in your birth certificate shall not be erased or deleted. Instead, an annotation in the remarks
space stating “Legitimated by Subsequent Marriage” indicating the family name which you shall bear because
of legitimation shall be written.

We hope that we were able to enlighten you on the matter. Please be reminded that this advice is based
solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other
facts are changed or elaborated.
https://psa.gov.ph/civilregistration/legitimation

LEGITIMATION

Release Date:
Monday, January 2, 2012

Who are legitimate children?

Children born after one hundred and eighty days following the celebration of the marriage, and before three
hundred days following its dissolution or the separation of the spouses shall be presumed to be legitimate.
(Art. 225, Civil of the Philippines).

Children conceived or born during the marriage of the parents are legitimate.

Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a
donor are likewise legitimate children of the husband and his wife, provided that both of them authorized or
ratified such insemination in a written instrument executed and signed by them before the birth of the child.
The instrument shall be recorded in the civil registry together with the birth certificate of the child. (Art. 164,
Family Code of the Philippines).

Is the child considered legitimate although the mother may have declared against its legitimacy?

The child shall be considered legitimate although the mother may have declared against its legitimacy or may
have been sentenced as an adulteress. (Art. 167, Family Code of the Philippines)

What are the rights of legitimate children?

Legitimate children shall have the right :

To bear the surnames of the father and the mother:

To receive support from them, from their ascendants, and in a proper case, from their brothers and sisters,
in conformity with article 291 and,
To the legitimate and other successional rights which this Code recognize in their favor. (Art. 263, Civil
Code of the Philippines)

Legitimate child have the right to bear the surname of the father and of the mother. (Art. 62(a) of P.D. 1083
(Code of Muslim Personal Law of the Philippines).

The provisions of the law governing use of surnames were formulated in order to avoid confusion in the use
of surnames, and to settle doubts on their proper use (Report of Code Commission, p51, cited in Tolentino,
supra, p.721), we are unable to find any provision in the Muslim Code or the Civil Code which would authorize
the use of the name as the family name of surname of the children of Muslim parents, for purposes of
registration, especially in accomplishing the Certificate of Live Birth (Mun. Form No.102).
Accordingly, unless the law is amended to reflect the alleged tradition or practice, the children should bear
the family or surname of their father for registration purposes. (Opinion No. 112, Series of 1985, from the
Minister of Justice Estelto P. Mendoza)

Who are illegitimate children?

Children conceived and born out a valid marriage are illegitimate, unless otherwise provided in the Family
Code (Art. 165, F.C.)

Who are considered illegitimate children?

The following are illegitimate children :

Children born to couples who are not legally married or of common-law marriages;
Children born of incestuous marriages;
Children born of bigamous marriages;
Children born of adulterous relations between parents;
Children born of marriages void for reason of public policy under Art. 38 of the Family Code;
Children born of couples below 18, whether they are married (which married is void) or not; and,
Children born of other void marriages under Art. 15 unless otherwise provided. (OCRG Cir. No. 89-13 dated
July 17, 1989)
What is the rule on the registration of births of illegitimate children who were born prior to August 3, 1988?

Illegitimate children as defined under the Civil Code of the Philippines who were born prior to August 3, 1988
and whose births were not previously registered shall be registered under the following rules in addition to
those provided for delayed registration of births;

Recognition or acknowledgement of an illegitimate child may be made jointly by the father and
mother or by only one of them (Art. 276, C.C.) When the father or the mother makes the recognition
separately, he or she shall not reveal the name of the person with whom he or she had the child; neither shall
he or she state any circumstance whereby the other parent may be identified (Art. 280, C.C.)
An illegitimate child has the right to bear the surname of the parent recognizing him (par. 1, Art. 282, C.C.)
However, an illegitimate child who is not recognized or acknowledged by both parents in accordance with
law shall be registered under the surname of the mother (Opinion No. 147 s. 1986, Minister of Justice)
Recognition shall be made in the record of birth, a will, statement before a record, or in any authentic writing
(Art. 278, C.C.). If made on record of birth at the time of registration the affidavit of acknowledgement printed
at the back of the certificate of live birth shall be signed and sworn to jointly by the parents of the illegitimate
child, or only by the mother if the father refuses (Sec. 5, Act No. 3753).
May an illegitimate child born on or after August 3, 1988 carry the surname of the father if the father executed
an affidavit of admission of paternity?

Illegitimate children born on or after August 3, 1988 shall use the surname of the mother. (Section 1 OCRG
Circular No.4 dated October 11, 1988).

The father of an illegitimate child who wishes to have his name indicated in item 13 of the Certificate of Live
Birth shall execute an affidavit of Admission of Paternity in lieu of the affidavit of acknowledgement. The
purpose of affidavit of admission of paternity is for the support and succession only, and it does not entitle
the illegitimate child to use the surname of his father. (Section 2 OCRG Circular No. 4 dated October 11,
1988)

What is the rule on the registration of births illegitimate children who were born on August 3,
1988 and thereafter?
The following rules shall govern the registration of illegitimate children who were born on August 3, 1988 and
thereafter:

An illegitimate child shall use the surname of his mother (Art. 176, F.C.) regardless of whether or not his
father admits paternity (opinion of Civil Code Revision Committee, September 23, 1988).
The name of the father of the illegitimate child may be indicated on the birth certificate of the latter whenever
the former executes an affidavit of admission of paternity, provided that such affidavit shall not affect the
naming of the illegitimate child (opinion of the Civil Code Revision Committee, September 23, 1988)
The affidavit mentioned in the immediately preceding paragraph, if executed by the father shall be
permanently attached to and shall form part of the birth certificate of the illegitimate child. The birth certificate
in such a case must have a remark "With Attached Affidavit of Admission of Paternity" impressed with a
rubber stamp at the upper left-hand margin and duly signed by the local civil registrar or authorized civil
registry personnel.
Illegitimate children falling under this classification who were not registered within the prescribed period of
registration shall comply with the requirement of delayed registration of births. (Section 4 Circular No. 89-13
dated 17 July 1989)
What consist the full name of an individual?

The full name of an individual consists of a first or given name, a middle name which is the mother's maiden
surname and the last name which is generally the father's surname. Entries of names in the birth certificate
should, as much as possible and legally permissible, follow the above convention. (I.M. p 14)

Is it permissible to leave the first name of the child blank in case the parents cannot decide on the name yet?

If until registration the parents are not decided on the first name for the child, write only the middle and last
name but never write "Baby Boy or Baby Girl". Entries such as "Jr." of "II" affixed to an individual's first name
to distinguish him from an ascendant of the same name are acceptable as added identification. (I.M. p. 14-
15).

What are the rules in making the entry of the last name of a child?

For a child born to a legally married couple, write the last name of father ;
For a child born to a mother who is not married during a pregnancy and at the time of birth, the following rules
shall apply:
If the child was born on or after 3 August 1988, write the last name of the mother.
If the child was born before 3 August 1988:
Enter the last name of the father if both parents execute the Affidavit of Acknowledgement at the back of the
Certificate of Live Birth.
Enter the last name of the acknowledging parent if either the father or the mother alone acknowledges the
child. In this case, no information should lead to the identity of the parent not acknowledging the child, that
is, the space provided for the information about the parent must have "Not Applicable" or "N.A." as entry".
If no parent acknowledges the child, enter the last name of the mother (I.M. p. 15-16)
What is the rule in the registration of the place of birth?

For births that occur in hospital, clinic or institution, write the complete name and address of the hospital or
institution.
For births that did not occur in any of the above institution, write the complete address where the birth
occurred. (I.M. p. 17)
Is it important to indicate the date and place of the marriage of the parents in the certificate of live birth?

It is extremely important that this item (Item 18) is not left blank, otherwise, the legitimacy of the child will be
questioned.

If the parents have forgotten the exact date of their marriage, enter the approximate year. If they cannot
approximate the year, enter "forgotten".

Enter "Not Applicable" if the child has unknown father or mother.

Enter "Unknown", "Don't Know" or "D.K." if the informant could not supply the information.

Enter "Not Married" if the parents of the child are not legally married on or before the birth of the child and
their names appeared in Item 6 and Item 13. (I.M. p. 24-25)

What is the implication if Item 22 (Received at the Office of the Civil Registrar) is not signed by the receiver?

The signature affixed in this item indicates that the certificate was filed and accepted by the civil registrar.
The date indicates whether the birth certificate was filed within the reglamentary period.

The absence of the necessary signature in Item 22 can be a basis for questioning the validity of the certificate.
(I.M. p.27)

What is meant by an “Out-of-town Reporting of Birth”?

An out-of-town reporting of birth occurs when the Certificate of Live Birth is presented to the civil registrar of
a city or municipality which is not the place of birth, not for registration but to be forwarded to the civil registrar
of the city or municipality where the birth occurred and where it should be registered.

The duty of accepting Certificate of Live Birth for out-of-town reporting by the concerned civil registrar may
also be performed by the Civil Registrar-General of by his authorized representatives who are the Regional
Administrators and Provincial Statistics Officers of the Philippine Statistics Authority. (Rule 20, A.O. No. 1 s
1993).

What are the requirements to be complied with by the concerned parties in the out-of-town reporting of birth?
The party who is applying for out-of-town reporting of birth shall execute an affidavit declaring therein, among
other things, the facts of birth and the reasons why said birth was not recorded in the civil registrar of the city
or municipality where it occurred. The affidavit which must be attested by at least two (2) witnesses, shall
serve as an application for registration shall be submitted to the civil registrar together with four (4) copies of
the Certificate of Live Birth;
If the application is for delayed registration of birth, the requirements under the rules governing delayed
registration of birth shall also be complied with;
The civil registrar or the authorized representative of the Philippine Statistics Authority to the application for
out-of-town reporting is presented may require from the applicant such other supporting papers as may be
considered necessary in establishing the facts of birth especially those pertaining to the date and place of
birth and filiation of the child whose birth is being sought for registration;
The Certificate of Live Birth, for the purpose of this Rule, shall have the marginal annotation in the form of
the following remark : "Registered pursuant to Rule 20 of the Administrative Order No. 1, s. 1993" ; and,
The civil registrar of the city or municipality where the out-of-town reporting is sought, upon receipt of the
Certificate of Live Birth and pertinent papers, shall proceed with the registration. He shall indicate the date
when he received the document, and shall sign over his printed name in appropriate space in the Certificate
of Live Birth. When the Certificate of Live Birth has been duly recorded and assigned a registry number, the
civil registrar shall send back the original copy to the civil registrar or the authorized representative of the
Philippine Statistics Authority who forwarded the Certificate of Live Birth, who in turn shall give the copy
bearing the registry number to the registrant. (Rule 20, A.O. Order No. 1 S. 1993)
What is the legitimation and who can be legitimated?

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. (1 Manresa 550, as cited on p. 251, Handbook on Family Code of
the Philippines, Alicia V. Sempio-Diy).
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 impediments to marry each other, may be legitimated. (Art. 177, Family
Code)
Legitimation of children by subsequent marriage of parents shall be recorded in the civil registry office of
the place where the birth was recorded. The requirements for registration of legitimation of illegitimate
children are:
a) Certificate of Marriage;

b) Certificate of Live Birth of the child;

c) Acknowledgement (not required for illegitimate children born on or after 3 August 1988);

d) Affidavit of legitimation executed by both parents which shall contain the following facts:

(1) the names of the parents;

(2) that at the time when child was conceived, the aforesaid parents could have contracted marriage, and
that they subsequently contracted marriage,

(3) the date and place when such marriage was solemnized;
(4) the name of the officer who officiated the marriage;

(5) the city or municipality where such marriage was recorded;

(6) the name of the child to be legitimated, and the other facts of birth;

(7) the date and place where the birth of the child was registered; and

(8) the manner by which the child was acknowledged by the parents which may be in the child’s record of
birth, in a will, a statement before a court of record, or in any authentic writing (not required for illegitimate
children born on or after 3 August 1988).

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 acknowledgement has been 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.
The original family name of the child as appearing in Registrar of Births shall not be erased or deleted, but in
the remarks space shall be written "Legitimated by Subsequent Marriage" indicating the family name which
the child shall bear by virtue of the legitimation also giving reference to the entry number in the Registrar of
Legal Instruments.

When the interested party requests a copy of the birth certificate of a legitimated child a certified copy of the
certificate of Live Birth bearing the annotation "Legitimated by Subsequent Marriage on ________ (date of
marriage) at __________ (place of marriage)" or a certified transcription using standard form from the
Register of Births bearing the effects of legitimation and the same annotation indicated in the certified true
copy shall be issued. (Rule 66, A.O. No. 1 S. 1993)

How does legitimation take place?

Legitimation shall take place by a subsequent valid marriage between parents. The annulment of a voidable
marriage shall not affect the legitimation (Art. 178, Family Code of the Philippines).
Petitions for correction of birth certificate errors not as costly as criminal or civil cases
By The Manila Times on December 5, 2013

Dear PAO,
I have a legal problem regarding the entries in the birth certificates of my two children. From my reading of your column,
I learned that the error in the entries in the birth certificates of my children will require correction which can only be
effected by an order of the court. My questions are, how is the petition filed and how much will I spend for this including
the lawyer’s fees?

Ms. Saipan

Dear Ms. Saipan,

Before you can file the petition to effect the correction in the birth certificates of your children, you should consult a
lawyer who will prepare the said petition. The Petition for Correction of Entry in the record of birth of any party seeking
for correction in the same may be filed in the Regional Trial Court of the place where the birth is registered. In your
case, you may file the petition in the place of the appropriate civil registry where the births of your two (2) children are
registered. The said remedy is provided for under Section 1, Rule 108 of the Rules of Court which provides that:

“Any person interested in any act, event or order or decree concerning the civil status of persons which has been
recorded in the civil register may file a verified petition for the cancellation or correction of any entry relating thereto,
with the Court of First Instance (now Regional Trial Court) of the province where the civil registry is located.”

The following entries in the Civil Register may be cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal
separations; (e) judgments or annulments of marriage; (f) judgment declaring marriages void from the beginning; (g)
legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization; (k) election, loss or recovery of
citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of a minor; and (o)
changes of name (Section 2, Rule 108, Rules of Court).

“Any person interested in any act, event or order or decree concerning the civil status of persons which has been
recorded in the civil register may file a verified petition for the cancellation or correction of any entry relating thereto,
with the Court of First Instance (now Regional Trial Court) of the province where the civil registry is located.”

The following entries in the Civil Register may be cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal
separations; (e) judgments or annulments of marriage; (f) judgment declaring marriages void from the beginning; (g)
legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization; (k) election, loss or recovery of
citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of a minor; and (o)
changes of name (Section 2, Rule 108, Rules of Court).

Canon 20 of the Code of Professional Responsibility, provides, that a lawyer shall charge only fair and reasonable fees
and in the determination of the lawyers’ fees, a lawyer shall be guided by the following factors, to wit:

a) The time spent and the extent of the services rendered or required;
b) The novelty and difficulty of the questions involved;
c) The importance of the subject matter;
d) The skill demanded;
e) The probability of losing other employment as a result of the acceptance of the proferred case;
f) The customary charges for similar services and the schedule of fees of the IBP chapter to which he belongs;
g) The amount involved in the controversy and the benefits resulting to the client from the service;
h) The character of the employment, whether occasional or established; and
i) Professional standing of the lawyer (Rule 20.01 Code of Professional Responsibility).

Petitions for correction of entries may not be as difficult as other criminal or civil cases, hence, lawyers may not be
charging you much more than what is fair and reasonable.

We hope that we were able to substantially answer all your queries. However, please be reminded that our opinion is
based on your narration of facts and our appreciation of the same. The opinion may vary if other facts are added or
elaborated
CASES

1. REPUBLIC vs. BENEMERITO, G.R. No. 146963. March 15, 2004

Facts: Petition for Correction of entry of a birth certificate:

Father’s name: Peter Benemerito to Petronio Benemerito.

Date of marriage of parents: from September 1, 1989 to January 25, 1998.

Ruling: A clerical error is one which is visible to the eyes or obvious to the understanding; an error made by a clerk or
a transcriber; a mistake in copying or writing, or a harmless change such as a correction of name that is clearly
misspelled or of a misstatement of the occupation of the parent.

The "corrections" sought to be made by respondent in the birth certificate of Joven Lee could hardly qualify as just
clerical errors. In order to effect the desired changes, it would be essential to establish that Peter Laurente Benemerito,
the person named as being the father of Joven Lee, and Petronio L. Benemerito, herein respondent, refer to the same
person.

The intended correction of the date of marriage of the parents of Joven Lee from 01 September 1989, appearing in his
certificate of birth, to 25 January 1998, would, in effect, change the status of the child, Joven Lee, born on 01 June
1990 at a time when he and his wife were not as yet legally married, from being the legitimate son of Peter Laurente
Benemerito to being instead the legitimated child of Petronio L. Benemerito and a certain Peter Laurente Benemerito.

ADVERSARIAL PROCEEDINGS: A case does not amount to an adversarial proceeding simply because an opportunity
to contest the petition is afforded by the publication of the petition in a newspaper of general circulation. The
corresponding petition should also implead as respondents the civil registrar and all other persons who may have
or may claim to have any interest that would be affected thereby.

2.