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August 9, 2010

Does a mistress have rights?

Dear HerWord,

I am a government employee here in Quezon City and I have a boyfriend who is also a government employee, but he works in the province. He is married and has four kids but he and his wife are not on good terms now. I want to have a child with my boyfriend. It is alright with me if we are not married (maybe when they finally separate or get annulled) but the important thing is I want to have a child because I am almost 40 years old. mistress So my questions are:

1) When I get pregnant (and) give birth, is there a possibility that my boyfriend’s wife will file a case against me or us?

2) If yes, what kind of case will this be?

3) Can I (and my boyfriend) be removed from my/our work in government if such a case is filed?

4) Can I use my boyfriend’s surname for our child?

5) Which is more advantageous to the child: using my surname or my boyfriend’s surname?

6) What will be my boyfriend’s responsibilities to my child?

7) What can I get from my boyfriend for my child (e.g.financial support)?

8) What is the difference between legal separation and annulment?

Thank you very much and more power.

Respectfully yours,

[name undisclosed]

Atty. Junio's reply:

I understand that, at your age, you are yearning for a family you can call your own. Nevertheless, do not make that as an excuse for you to continue an illicit affair with a married man, much more of planning to have a baby with him. You seem so desperate to have a child. I will not blame you for loving a married man. However, desperation should take its toll because your possible actions will cause you future anxieties.

When your boyfriend gets you pregnant and his wife finds out about this, she might file a case of concubinage against you and your boyfriend. The Philippine Revised Penal Code explicitly penalizes concubinage. Concubinage is present when a husband shall keep a mistress in the conjugal dwelling, or shall have sexual intercourse, under scandalous circumstances, with a woman not his wife, or shall co-habit with her in any other place. Even if they are not in good terms such will not be a valid defense because they are still legally married.

A disciplinary action through either suspension or dismissal from government office on the ground of disgraceful and immoral conduct for having an illicit affair with a married person may be filed against you (and your boyfriend). It is necessary however, that a separate administrative complaint be filed against you.

With regard to the surname of your child, if ever you had one, your child has to follow your surname. Nevertheless, your child can use the surname of his father provided that: first, the father gives his consent, and second, you authorize the use of the father’s surname in lieu of yours. According to Republic Act 9255 (Revilla Law), an illegitimate child may use the surname of his father if his filiation has been expressly recognized by the father through the record of birth of the child or in a public document or private written instrument.

Which is more advantageous to use, then? I submit that the use of your surname is more advantageous to you and your child. First, the record of birth of your child with the name of his father may be used against you for the crime of concubinage. Second, a lot of women regret the use of man’s name in the record birth of the child when the relationship between the parents become sour and when the father refuse to provide the necessary support to the child. Another expensive legal process is necessary for the change of entries in the birth record. Lastly, if you plan to go abroad, there will be problems bringing your child because the child carries the surname of his father.

As for the obligation of the father to your child, he is required by law to give support to the child. Child support covers everything indispensable for the sustenance, dwelling, clothing, education, medical attendance, and other needs of the child, depending upon the means of the father. Furthermore, even if your child is considered illegitimate, he or she is entitled to his legitime ("mana") upon the death of his father. Your child is entitled to receive half of the share of one legitimate child of the father.

Regarding your question on the difference of legal separation and annulment, in the former, the marriage is not defective given that the grounds exist after the celebration of the marriage; in the latter, the marriage is defective since the grounds exist at the time of or before the marriage. The parties in legal separation cannot remarry because they are still married to each other, while the parties in annulment can marry again because the marriage is set aside.

I hope I was able to address all your concerns. My advice is that do not enter into a situation, where for shallow reasons, you will sacrifice many things. Think about the effect and the legal consequences of your actions. I am sure you will not regret everything if you do what is right and moral.

God bless!

Atty. Irene

If you have questions for Atty. Irene, email feedback@herword.com.

Atty. Irene May Junio obtained her Bachelor of Laws degree from the San Beda law school. She took her pre law in the Saint Louis University with a degree in A.B. Political Science. She presently works as an associate at the Raul Lambino Law Office, handling and assisting in civil and family cases, crimimal-, corporate, and labor cases, among others.


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