Case Digest: ANN BRIGITT LEONARDO, et al. v. COURT OF APPEALS, et al.

ANN BRIGITT LEONARDO, et al. v. COURT OF APPEALS, et al.

G.R. No. 125329, 10 September 2003

When there is a right, there is a remedy. Conversely, if there is no right, there is no remedy as every remedial right is based on a substantive right.

Petitioner Ann Brigitt Leonardo (Brigitt) is an illegitemate child of common-law-spouses Eddie B. Fernandez and Gloria C. Leonardo. Wanting Brigitt to carry his surname, Eddie executed an affidavit and a letter which was submitted to the Local Civil Registrar asking for the change of her surname. The Local Civil Registrar of Manila denied said request on the ground that under the family code, illegitimate children should carry their mother‘s surname. It likewise held that it does not have the authority to effect such change. Brigitt then appealed to the Civil Registrar General which also denied the request on the ground the same ground.

Undaunted, Leonardo filed a Petition for Review upon the Court of Appeals. The CA declared that an illegitimate child born after the effectivity of the Family Code can use the surname of the father but the power to effect the change lies in the Court and not with Local and Civil Registrar. Hence, this appeal.

ISSUE:

Whether or not an illegitimate child born after the effectivity of the Family Code can use the surname of the father

HELD:

Ubi jus, ibi remedium. When there is a right, there is a remedy. Conversely, if there is no right, there is no remedy as every remedial right is based on a substantive right.
Article 176 of the Family Code provides that ―an 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. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. The rule applies even if petitioner‘s father admits paternity.‖

The Court declared in Mossesgeld the Family Code has effectively repealed the provisions of Article 366 of the Civil Code of the Philippines giving a natural child acknowledged by both parents the right to use the surname of the father.

Since Brigitt was born an illegitimate child after the Family Code took effect, she has no right to use her father’s surname.