I am an OFW who worked abroad for my family for more than four years. After returning to our country, I discovered that my wife had a new male child while I was away. I think this is impossible since I’ve been out of the country for a very long time. As much as I know that it is not the child’s fault, I don’t want to take responsibility over her child which I’m sure is not mine.
I was also told that the inheritance share of my other real children will be affected and reduced by the inclusion of my wife’s child. Because of this, I have decided to disown this child. Now I’d like to know how I can legally do this to remove my legal obligation to my wife’s son from an affair. I hope you can help me.
Based from your narration, your desire to disown a child legally translates to impugning the legitimacy of your wife’s child. This is necessary because the law provides that “children conceived or born during the marriage of the parents are legitimate” (Article 164, Family Code of the Philippines). Therefore, despite your complete belief that the child is not yours, you must first overcome the legal presumption that your wife’s son is your legitimate child since he was born within and during your marriage.
In impugning the legitimacy of a child, Article 166 of the Family Code of the Philippines provides several grounds to wit:
“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:
(b) the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible;
xxx xxx xxx.”
Using the aforementioned legal ground, you may prove before the court that it was impossible for you and your wife to have engaged in sexual intercourse during the time when your wife’s son was conceived. Should the court find merit in your action to impugn the child’s legitimacy, then it may declare that the child is the illegitimate child of your wife without any legal relation to you. As a consequence thereof, the child will lose his right over you as his father including your obligation to provide him support and share in your estate.
It is however important to note that the law likewise provides for specific periods within which to file an action to impugn the legitimacy of a child to wit:
“Art. 170. 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” (Family Code of the Philippines).
It is imperative that the action to impugn the legitimacy of a child be filed within the aforementioned period otherwise it may be dismissed for being filed beyond the reglamentary period.
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.