Thursday, August 27, 2009

If a wife gets pregnant by a man not her husband, will the child be legitimate or illegitimate?

Summary:

How does a wife get pregnant by a man who is not her husband? What will be the status of the child?


Situation 1: By artificial insemination; if the wife and her husband complied with the 2nd paragraph of Article 164 of the Family Code, then the child is legitimate.

Situation 2: By sexual intercourse in a one-night stand or a live-in relationship while the marriage is subsisting; the child, however, is considered the legitimate child of the wife and her husband because of Article 164 of the Family Code (“children conceived or born during the marriage of the parents are legitimate”) and Article 167 (“the child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress”).

Situation 2 creates a big legal mess for the physically separated wife and husband. The wife no longer wants to have anything to do with her husband but the child is presumed to be legitimate. What surname will she use in the child’s birth certificate?
  • If she uses the biological father’s surname, this can be used as evidence by her husband in filing a case of adultery against her and the biological father.

  • If she informs the Local Civil Registrar that she is physically separated from her husband, the LCR will not allow her to register the child under the biological father’s surname because of Articles 164 and 167 of the Family Code.

  • She can claim that she is single and then either leave the entry for the name of the father blank or use the biological father’s name; in this situation, she can potentially be charged with perjury.

  • If she uses her husband’s surname for the child, her husband can file a case of damages against her.
Whatever the wife does with the child’s birth certificate, there are adverse legal and practical consequences.

On the other hand, if the husband fails to comply with the periods stated in Article 170, then he (or his heirs) can no longer question the legitimacy of the child. The child will be entitled to inherit from him.

For children who may have been born in this kind of situation, they will find themselves in a limbo: they are legitimate from the legal point of view but are illegitimate biologically.

Most of you will probably say that of course, the child will be illegitimate. But I wish to discuss here several issues which give us a different answer:

[1] Conception as a result of artificial insemination

[2] Presumption of legitimacy of a child born during the marriage of the parents

[3] Ways legitimacy can be impugned or questioned

[4] DNA testing to prove legitimacy or illegitimacy

Conception as a result of artificial insemination

The 2nd paragraph of Article 164 of the Family Code states:
Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child.
Artificial insemination can either be AIH (artificial insemination by husband) or AID (artificial insemination by donor). Both husband and wife must have given their consent in a written document recorded with the Local Civil Registrar’s office. Firstly, I find it difficult to conceive, pardon the pun, of a woman being subjected to artificial insemination against her consent or willing participation. Secondly, if it is AIH, why would a written and recorded document still be necessary?

Why would couples resort to artificial insemination? Please take time to read the following articles by Sandra Glahn:
Presumption of legitimacy of a child born during the marriage of the parents

The first paragraph of Article 164 of the Family Code states that “children conceived or born during the marriage of the parents are legitimate”. This presumption can be disputed; Article 166 provides the grounds for questioning the legitimacy of a child. This presumption on legitimacy can however become conclusive as the Supreme Court explained in the case of Dizon vs. De Jesus G.R. No. 142877, October 2, 2001:
There is perhaps no presumption of the law more firmly established and founded on sounder morality and more convincing reason than the presumption that children born in wedlock are legitimate. This presumption indeed becomes conclusive in the absence of proof that there is physical impossibility of access between the spouses during the first 120 days of the 300 days which immediately precedes the birth of the child due to (a) the physical incapacity of the husband to have sexual intercourse with his wife; (b) the fact that the husband and wife are living separately in such a way that sexual intercourse is not possible; or (c) serious illness of the husband, which absolutely prevents sexual intercourse.
The child is considered legitimate even though the mother has been convicted of adultery

The law favors the legitimacy of the child as Article 164 provides. Moreover, Article 167 provides that “the child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.”

The law favors the legitimacy of a child


Please read carefully the 2005 Supreme Court decision in the case of “Gerardo Concepcion vs. Court of Appeals and Ma. Theresa Almonte.” In this case, Gerardo filed a case for declaration of nullity of his marriage to Theresa on the ground that their marriage was bigamous. Theresa was already married to a certain Mario when they got married (and Mario was still alive and living in Quezon City.) As a result, the trial court declared their son Jose Gerardo to be an illegitimate child. When the trial court denied Theresa’s motion to have Jose Gerardo’s surname changed to her maiden surname, she brought the case up to the Court of Appeals.

The CA ruled, to the shock of both Gerardo and Theresa, that Jose Gerardo was not the son of Ma. Theresa by Gerardo but by Mario during her first marriage. The CA ruling, later on affirmed by the Supreme Court, declared that every presumption must be in favor of legitimacy. The Supreme Court ruled that
During the period that Gerardo and Ma. Theresa were living together in Fairview, Quezon City, Mario was living in Loyola Heights which is also in Quezon City. Fairview and Loyola Heights are only a scant four kilometers apart.

Not only did both Ma. Theresa and Mario reside in the same city but also that no evidence at all was presented to disprove personal access between them. Considering these circumstances, the separation between Ma. Theresa and her lawful husband, Mario, was certainly not such as to make it physically impossible for them to engage in the marital act.

Sexual union between spouses is assumed. Evidence sufficient to defeat the assumption should be presented by him who asserts the contrary. There is no such evidence here. Thus, the presumption of legitimacy in favor of Jose Gerardo, as the issue of the marriage between Ma. Theresa and Mario, stands.
The Supreme Court ruled that it was only Mario (the first husband) or in the proper case, his heirs, who could question the legitimacy.

Ways legitimacy can be impugned or questioned

Article 166 of the Family Code provides the ways by which legitimacy can be impugned or questioned:
(1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of:

(a) the physical incapacity of the husband to have sexual intercourse with his wife;

(b) the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or

(c) serious illness of the husband, which absolutely prevented sexual intercourse;

(2) That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the instance provided in the second paragraph of Article 164; or

(3) That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence.
Periods within which to question legitimacy

Article 170 provides for certain periods within which the husband can question the legitimacy of the child:
The action to impugn the legitimacy of the child shall be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded.

If the husband or, in his default, all of his heirs do not reside at the place of birth as defined in the first paragraph or where it was recorded, the period shall be two years if they should reside in the Philippines; and three years if abroad. If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, whichever is earlier.
Briefly, the period is one year from the birth of the child if the husband or his heirs live in the same town or city where the child was born. The period is two years if the husband or his heirs if they reside elsewhere in the Philippines. The period is three years if the husband or his heirs are living abroad.

Article 171 provides for the grounds whereby the husband’s heirs can question the legitimacy of the child:
The heirs of the husband may impugn the filiation of the child within the period prescribed in the preceding article only in the following cases:

(1) If the husband should die before the expiration of the period fixed for bringing his action;

(2) If he should die after the filing of the complaint without having desisted therefrom; or

(3) If the child was born after the death of the husband.
Can the action to question the legitimacy of a child be filed beyond the periods provided by Article 170? This question was raised in the 2000 case of “Teofista Babiera, petitioner, vs. Presentacion B. Catotal, respondent.” The Supreme Court clarified that:

[1] Articles 170 and 171 of the Family Code apply to instances in which the father impugns the legitimacy of his wife’s child. The provisions, however, presuppose that the child was the undisputed offspring of the mother.

[2] These articles govern a situation where a husband (or his heirs) denies as his own a child of his wife. These articles do not contemplate a situation where a child is alleged not to be the child of nature or biological child of a certain couple.

DNA testing to prove legitimacy or illegitimacy; the need to amend Articles 170 and 171 of the Family Code


What these provisions of the FC are saying is that if the period (one, two or three years) has already passed, the husband or his heirs can no longer question the legitimacy of the child. These periods provided by the Family Code, as far as I can recall, were taken verbatim from the New Civil Code of the Philippines. The NCC became effective in 1949 while the Family Code became effective in 1998. As far as I can recall from my Persons and Family relations class in MLQU in 1987-88, these periods were provided because of the fickleness of human memory.

Today, however, DNA testing can very easily determine the paternity of children. This is one area where the Family Code has not kept pace with technology. Perhaps our senators and congressmen can modify Article 170 of the Family Code so that any father who wants to question the legitimacy of a child can do so even beyond these periods. Please read my post “DNA testing to prove legitimacy or illegitimacy of children; Supreme Court’s New Rule on DNA Evidence.”

9 comments :

mom101 said...

Greetings!

I have been reading your blogs but there are still questions lingering at the back of my mind.

I am currently 36 weeks pregnant. The status of my child's father is married. He was married 9 years ago but the marriage lasted for 3 months only. His wife had another relationship.

Before we met, his wife already bore 2 children with another man, not the father of my child. The two parties agreed to have their marriage annulled but still on the process as of the moment.

I will be giving birth this coming Feb 2010 already. The father of my child insisted to use his surname. I am happy that the father of my child wants to acknowledge this child since we also have plans in getting married once his annullment is already approved.

Atty, if im going to use the surname of the father would there be any conflict in the future? The child is still illegitimate since we parents are not married?

Thank you.

Looking forward for your advice. God bless

Atty. Gerry T. Galacio said...

The Family Code defines an illegitimate child as someone born outside of marriage. Your child will therefore be illegitimate. But the child can use the father’s surname under RA 9255.

Even if you get married later, the child cannot be LEGITIMATED since the child will be born under a legal impediment (a valid subsisting marriage on the part of the father).

mom101 said...

Thank you so much Atty for taking the time to answer my queries.

If in the future, the annullment will be approved and the two of us will be married, can the father of my child apply for an adoption to make our child legitimate? Is that possible?

Regards. God bless.

Atty. Gerry T. Galacio said...

Mom 101,

Please read my post on “Procedures in adoption” (look for the link in the sidebar).

Anonymous said...

Hi Atty. My wife and I have been separated in fact for more than 3 years and she now has a 2-year old child by another man. I did learn of the child's birth then but i didn't know then that the child would be considered mine.

I'm not sure what the child's birth certificate states. What if in the birth certificate of such child, the other man acknowledges the child to be his or she (my wife) puts father undetermined. Can I use this to file a case to impugn the legitimacy of the child? It doesn't seem to fall within the grounds provided in Art 166.

If my estranged wife does not object, can I claim that I only found out about the birth of the child just now and avail of the 2 year period from date of knowledge to file the case?

Atty. Gerry T. Galacio said...

What you need to do is to retain the services of a lawyer, explain to him/her all the facts especially the relevant time periods. Your lawyer will then come with what is called “theory of the case” which is his/her determination of what the applicable laws are and how best to proceed with the case.

One other thing you can do is to talk to your congressman or congresswoman and ask that these portions of the Family Code be amended or repealed. As I discussed in this post, the periods were provided even before the Family Code became effective in 1988. Back then, DNA testing was unheard of. The Family Code has not kept up with the developments in science and technology.

Anonymous said...

In the case that I will be using my legal husband's surname for the child, should I leave the father's info portion blank? since he won't be present when I deliver the baby. Is there a way that my legal husband will get a copy of my child's BC? And is there no way for me to choose my maiden name instead? Lastly, I usually go abroad and plan to migrate in the future, what will the problems be if i choose my married name? my maiden name? Pls help, I badly need the answers. Thanks and God Bless.

Anonymous said...

Just to clarify my last statement of going abroad...I plan to bring my son and this new baby with me when I go abroad.

Atty. Gerry T. Galacio said...

I already answered your e-mail.