G.R. No. 206248

Grace Grande vs Patricio Antonio

G.R. No. 206248

Facts:

Grande and Antonio had an illicit relationship. Out of it was born two children. Antonio did not expressly recognize the illegitimate children. He wanted to have the children use his surname.

Issue:

Whether or not it is legal to let the illegitimate children use Antonio surname even when they were not expressly recognized by the father.

Held:

The case was reprimanded to the RTC.

However, according to Article 176 of the Family Code which was amended by RA 9255 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. However, illegitimate children may use the surname of their father if their filiation has been expressly recognized by their 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. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child.

According to the rule on statutory construction, the use of 'may' is permissive and operates to confer discretion. In applying the same to the case at bar, the use of the word 'may' in the provision readily shows that an acknowledged illegitimate child is under no compulsion to use the surname of his illegitimate father.