COMMENTARY: What are the rights of a child born of an extramarital relationship?

This piece answers a question many of you emailed me in response to my last article, “Can a mistress be held liable under the law?”

You asked: What if a child had been born out of a woman’s affair with a married man, does the woman have a right to demand financial support for the child?  

The answer is: It depends.

If the child's mother is also married, she can only try to appeal to her lover's altruism and ask him to voluntarily give support, but if he refuses, she cannot seek the aid of the courts to demand support from him.

This is because the child is presumed by law to be the legitimate child and, consequently, the responsibility of the unfaithful woman and her husband, even if the child is biologically the offspring of another man.

The law always favors legitimacy. This is for the benefit of the child. Not even the mother can question the legitimacy of her own child.

On the other hand, if the mother is unwed, then the child is entitled to support from the biological father as well as the right to use said father's surname and the right to inherit when said father dies.

To be able, however, to demand these rights, the child must first have been recognized by the father.  

The easiest way to establish filiation between father and child is immediately after the child’s birth.

When a love child is born, the unwed mother can ask the father to recognize the child by accomplishing the admission of paternity in the child’s birth certificate. Once this is done, the child shall be entitled to all the rights mentioned above.

If, however, the father refuses to recognize the child, the mother may go to court and file a petition for recognition.

In the petition, the mother must establish the relationship of father and child through any of the following means (assuming there is no admission of paternity in the birth certificate): 1) an admission of filiation in a public document or a private handwritten instrument (both of which must be signed by the father); or 2) open and continuous possession of the status of a child of such father; or 3) any other means allowed by the Rules of Court and special laws.

Support

Support for a child includes housing, food, clothing, medical care, education, and transportation.

A father is legally obliged to give support for the education of all his children (legitimate or otherwise), even after they’ve turned 18. Thus, even assuming the child chooses to take up lengthy studies such as medicine or law, the father is still obliged to financially support him.

The amount, however, of support demandable must be in proportion to the father's resources. The needs of the child are also taken into consideration.

In the absence of the love child’s parents (say, if they are deceased), the child’s grandparents or, in their absence, his brothers and sisters---whether legitimately related or not, and whether of the full or half blood--- are legally obliged to give him support.  

If these persons who are obliged to give support unjustly refuse to give it, any third person may give support for the child, and such person may legally demand reimbursement from the former.
So here we see that, in terms of support, a love child’s rights are the same as a legitimate child’s.

Use of a father's surname

Under the old law, a love child can only use the surname of his unwed mother. But RA 9255 (passed in 2004) changed that, allowing the child to use the surname of the father under certain conditions, mainly:  “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.”

There is no need to go to court to change a child’s surname to follow his father’s. The father, or the single mother, or the child’s guardian, or the child himself (if already of age), may simply file an Affidavit to Use the Surname of the Father (AUSF) and supporting documents at the Local Civil
Registry Office (LCRO) where the child was born, if the birth occurred within the Philippines. If the birth occurred outside the Philippines, the AUSF and supporting documents should be filed at the LCRO of Manila.

Again, here we see that, provided the father expressly recognized their filiation, a love child’s rights are similar to a legitimate child’s.

Inheritance

Under our laws, a love child can inherit from both his parents through succession. But again, to demand this right, the child must first have been recognized by such parents.

Just like a child born within marriage, a child born outside marriage is a compulsory heir of his parents. This means he cannot be left out of the succession or be perfunctorily disinherited.

"Compulsory" means there is no choice for the parents; they cannot pass on their estate to other persons to the exclusion of their compulsory heirs. The law expressly reserves a portion of their estate for such compulsory heirs.  

The share, however, of a recognized love child in the estate of his deceased parents is only equivalent to one-half the share of a legitimate child.

Just as an unfaithful spouse cannot summarily disinherit his recognized love child, neither can such child be left out of the inheritance by his half-siblings or the other legitimate heirs of his parents.

If the legitimate heirs executed an extrajudicial settlement of the estate without including or notifying the other compulsory heirs (including any love child of the deceased), the latter can go to court and file a petition to nullify the extrajudicial settlement, and such excluded compulsory heirs can then claim their share in the inheritance.

Here we see that the inheritance rights of a love child is different than that of a legitimate child’s in the sense that a love child can only get the equivalent of half what a legitimate child can inherit from their parents.

But the law is still evolving. Perhaps soon, our lawmakers will realize that a love child is no different from a legitimate child---they are both fully persons, and they both deserve the same rights and protections under the law.