Annulment

Hello:

Presuming this concern arises within Philippine jurisdiction, the situation you described will not automatically affect your ability to file an annulment based on psychological incapacity under Article 36 of the Family Code. However, there are a few legal points that you need to clearly understand before deciding to use your foreign boyfriend’s surname for your child.

Firstly, the surname of the child depends on the legal status of the parents at the time of birth and the acknowledgment of paternity.

a) If you are still legally married to your husband when the child is born, the law presumes that the child is legitimate and the husband is the legal father under Article 164 of the Family Code. This is called the presumption of legitimacy. Because of this presumption, the child will normally carry the surname of your legal husband unless the presumption is challenged.

b) If your foreign boyfriend acknowledges the child, the child may use his surname, but this must be done properly through an Affidavit of Acknowledgment of Paternity or admission in the birth certificate. In practice, the Civil Registrar may still question this if you are legally married to someone else because of the presumption mentioned above.

c) In some situations, the child may instead use your surname to avoid legal complications while your marriage remains valid. This is a common practical approach while the annulment case is pending.

Secondly, regarding the annulment case based on psychological incapacity, your pregnancy with another partner does not automatically defeat your case. The Supreme Court has repeatedly ruled that psychological incapacity must be proven to have existed at the time of the marriage, meaning the focus of the court will be on:

a) your husband’s chronic infidelity and relationship with another woman,
b) his abandonment of marital obligations, and
c) the overall incapacity to perform essential marital duties.

The fact that you have been separated for seven years and that he has a child with another woman can actually support the narrative that the marriage was already dysfunctional and beyond repair.

Thirdly, you should also understand that the court will look at the total circumstances of the marriage, including the long separation and the husband’s conduct. Your current relationship normally does not determine whether psychological incapacity existed at the time of marriage.

From a practical standpoint, many lawyers would advise the following strategy while the annulment is not yet filed or pending:

a) register the child using your surname,
b) have the biological father execute an Affidavit of Acknowledgment, and
c) correct the surname later if necessary after the annulment or through proper legal proceedings.

This avoids complications with the presumption of legitimacy under Philippine law.

If you want, I can also explain the best legal strategy in your case, especially since your partner is a foreigner and you are planning to file an annulment. The strategy may involve structuring the birth registration and annulment timeline carefully so that it does not create unnecessary legal issues later.

I am the owner of Recososa Law Firm, based in the Philippines, with offices in Luzon, Visayas, and Mindanao. If you would like us to review your situation in detail and help prepare the annulment case properly, we can schedule an initial consultation via Zoom, Google Meet, or a physical meeting at our office.

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Sincerely,

ATTY. JOFRE B. RECOSOSA
Owner, Managing Partner
Recososa Law Firm