Affidavit to Use the Surname of the Father

What is an Affidavit to Use the Surname of the Father?

An Affidavit to Use the Surname of the Father is a document that is used in order for an illegitimate child to use the biological father's surname.

An Affidavit to Use the Surname of the Father can be executed by the child's mother or, in the absence of the child's mother, the child's guardian, or the child himself or herself.

Who is an illegitimate child?

An illegitimate child is one whose parents are not married. Under the Family Code, an illegitimate child shall use their mother's surname however, they may use their father's surname if their relationship has been expressly recognized by the father through the record of birth, such as the Certificate of Live Birth, or when admission has been made in a public document, such as an Affidavit of Admission of Paternity, or a Private Handwritten Instrument.

What is the difference between an Affidavit to Use the Surname of the Father and an Affidavit of Admission of Paternity?

An Affidavit of Admission of Paternity and an Affidavit to Use the Surname of the Father are similar because they can produce the effect where the illegitimate child can use the surname of his biological father. However, an Affidavit to Use the Surname of the Father is used by the biological mother or the legal guardian if they want to allow the illegitimate child to use the surname of the biological father, further, the illegitimate child himself can execute and sign an Affidavit to Use the Surname of the Father if they are already 18 years age or above. Whereas an Affidavit of Admission of Paternity is used by a biological father to acknowledge his illegitimate child (this refers to the child whose parents are unmarried).

Note that An Affidavit to Use the Surname of the Father can only be signed by the biological mother, the legal guardian, or the illegitimate child himself, once the biological father already admits his paternity to the illegitimate child under an Affidavit of Admission of Paternity.

Is it mandatory to have an Affidavit to Use the Surname of the Father?

If the biological father of an illegitimate child has acknowledged said child, and the child's mother or legal guardian, or the child himself wants to use the surname of his father, then it is mandatory to execute or sign an Affidavit to Use the Surname of the Father. This will ensure that the child will be allowed to use the surname of the father, and consequently be entitled to support, and to inherit from the estate of the father upon the father's death.

What must an Affidavit to Use the Surname of the Father contain?

An Affidavit to Use the Surname of the Father should contain the following information:

• The details of the affiant, who may be the mother, the legal guardian, or the child himself,
• The details of the illegitimate child whose surname will be changed,
• The birth date of the illegitimate child,
• The details of the biological father, an
• The document where the biological father admitted the paternity e.g. Affidavit of Admission of Paternity.

Who can enter into an Affidavit to Use the Surname of the Father?

The person who will sign an Affidavit to Use the Surname of the Father is the affiant who may be the child's mother or, in the absence of the child's mother, the child's guardian, or the child himself. The illegitimate child can sign depending on his age:

• If the child is 0-6 years old, then this affidavit should be signed by the mother or, in the absence of the child's mother, the child's guardian.
• If the child is 7-17 years old, then this affidavit should be signed by the child provided that they are fully aware of the consequence of this affidavit (that they will use the surname of their father and that the same will be reflected in their birth certificate) as attested (supported) by their mother or guardian,
• If the child is 18 years old and above, then the affidavit should be signed by the child. In this case, there is no need for the attestation of their mother or guardian.

What can be the duration of an Affidavit to Use the Surname of the Father?

The Affidavit to Use the Surname of the Father may be used during the lifetime of the biological father and can also be used by the illegitimate child after his biological father's death.

What has to be done once an Affidavit to Use the Surname of the Father is ready?

Once the affidavit has been completed, the affiant must print at least 2 copies of the document, and then proceed with its notarization.

The affiant must personally appear before a notary public and present at least one current identification document (I.D.) issued by an official agency bearing the photograph and signature of the Affiant. The affiant must swear under oath the whole truth of the contents of the affidavit and then sign all copies of the affidavit. The affiant will be asked to leave one original copy for the files of the notary public.

Once notarized, the affiant may use the document as needed, i.e. admission that he is the biological father of the illegitimate child so that the illegitimate child will be allowed to use the surname of the biological father.

Which documents should be attached to an Affidavit to Use the Surname of the Father?

The document where the details of the live birth of the illegitimate child is recorded which is usually the birth certificate, should be attached. Further, the previously executed Affidavit of Admission of Paternity or any other similar document by the father may also be attached.

Is it necessary to notarize an Affidavit to Use the Surname of the Father for it to be valid?

Yes, because an Affidavit to Use the Surname of the Father is a sworn statement, which should be executed or signed in the presence of a notary public.

Is it necessary to register the Affidavit to Use the Surname of the Father?

Once notarized, the Affidavit to Use the Surname of the Father should be registered as follows:

• Local Civil Registry Office at the place of birth: If the document is executed in the Philippines and the child's birth occurred in the Philippines.
• Philippine Foreign Service Post: If the document was executed outside the Philippines. The Philippine Foreign Service Post should be the one in the country of residence of the person executing this affidavit or, if there is none, in the Philippine Foreign Service Post of the country nearest the place of residence of the person executing this affidavit. A Philippine Foreign Service for the purpose of registering this document refers to Philippine embassies and consulates general.
• Local Civil Registry Office at the place of execution: If the document was executed in the Philippines but the child's birth occurred outside the Philippines.

While the Affidavit to Use the Surname of the Father may be used during the lifetime of the biological father and can also be used by the illegitimate child after his biological father's death, the document should be registered within 20 days from the date it is signed by the affiant.

In case registration is made beyond 20 days, there should be a notice to the public, stating that the child wants to use the surname of the father and that there will be a delayed registration of the same. This should be posted on the bulletin board of the city or municipality of the affiant for a period of not less than 10 days. If there is no challenge to this registration or if the civil registrar has concluded an investigation if someone challenges or opposes the registration, the civil registrar may deny or approve the registration of the Affidavit to Use the Surname of the Father

What are the costs involved in the finalization of an Affidavit to Use the Surname of the Father?

Notarization fees for an Affidavit to Use the Surname of the Father are typically PHP100 to PHP500. The government agency concerned may also require the payment of registration fees.

Which laws are applicable to an Affidavit to Use the Surname of the Father?

The Family Code of the Philippines is the primary law that governs marriage and family relations in the Philippines. On the other hand, affidavits are governed by the 2004 Rules on Notarial Practice. It should be noted that making false statements in an affidavit may be punishable under the Revised Penal Code.

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