Dear PAO,

My mother used to be married to another man. Shortly after they wed, they decided to separate but they never bothered to have their marriage declared null and void. They have been estranged ever since. Eventually, my mother met my father and although they could not tie the knot because of my mother’s subsisting marriage, that did not stop them from starting a family of their own. The three of us had been living a normal family life when my mother discovered that my official birth record reflects the name of her estranged husband as my father, even though she is certain she used my father’s name upon registration of my birth. My father and I have the best relationship, and I know that it breaks his heart that I appear to be someone else’s child and not his, even just on paper. What can my father do to prove that I am, in fact, his child?

Frankie

Dear Frankie,

Under our laws, there exists a presumption of legitimacy for children born to married women. In such a case, the husband is presumed to be the father of the child. It is anchored on the State’s policy to promote the welfare of the child — more specifically, “to protect the innocent offspring from the odium of illegitimacy.” (Bernie Santiago vs. Rommel C. Jornacion, et al., G.R. No. 230049, October 06, 2021, Ponente: Associate Justice Rosmari D. Carandang). Indeed, our society recognizes legitimate status as one more favorable to the child; hence, the presumption as such vested by law may only be overthrown by clear and convincing evidence to the contrary, and limited only to the following grounds:

“Article 166. Legitimacy of a child may be impugned only on the following grounds:

“(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 xxx” (Family Code of the Philippines)

Note that our law reserves the right to impugn the legitimacy of the child to the husband, or his heirs, in case: 1) the husband should die before the expiration of the period fixed for bringing his action; 2) should he die after the filing of the complaint without having desisted therefrom; or 3) the child was born after the death of the husband. (Article 171, Family Code of the Philippines)

To prevent the status of a child born in wedlock from being in a prolonged state of uncertainty, our law limits the period to impugn the legitimacy of a child to one (1) year from the birth of the child or knowledge thereof in case the husband or his heirs should reside in the city or municipality where the birth took place or was recorded, two (2) years should they reside anywhere else in the Philippines, and three (3) years should they reside abroad. (Article 170, Family Code of the Philippines)

Accordingly, it is only your mother’s husband, or his heirs, as the case may be, who may file an action to impugn your legitimacy based on specific grounds, and strictly within the periods allowed by law. Upon the expiration of these periods, your legitimate status becomes fixed, unassailable, and conclusively established.

While your father lacks the legal standing to impugn your legitimacy, and in case your mother’s husband refrains from filing the appropriate action, or lacks the interest to initiate one despite knowledge of your existence, it does not mean that your family is left without recourse. Recent Supreme Court rulings distinguish the concept of legitimacy from that of filiation, stating in essence that “while the law grants the husband the sole right to impugn his child’s legitimacy, the same child may bring an action to establish that he/she is not filiated to his/her mother’s husband,” because unlike legitimacy, filiation or the state of being someone’s offspring is determined by biology, and not by law. (James Kua Co vs. Republic of the Philippines, G.R. No. 210984, April 12, 2023, Ponente: Senior Associate Justice Marvic Mario Victor F. Leonen) This means that notwithstanding the presumption of legitimacy, you may still establish your illegitimate filiation to your father, provided you do so during his lifetime. (Article 175, Family Code of the Philippines)

We hope that we were able to answer your queries. This advice was based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Thank you for your continued trust and support.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]