My son’s status in his birth certificate is illegitimate because I was not yet married to his father when he was born in 2004. We cannot be married at tet time because his father’s first marriage was not yet annulled. We, however, got married in 2010. Can my son be legitimated?
Legitimation is defined as a process wherein a child who was born out of wedlock and is therefore, considered illegitimate, shall, by fiction, be considered legitimate upon the valid marriage of his parents. This has the following requisites: 1) the parents of the illegitimate child were not under any legal impediment to marry each other except when they were disqualified because either or both of them were below eighteen (18) years of age; and 2) subsequent valid marriage between the parents of the illegitimate child (Section 1, Republic Act 9858).
Based on the foregoing, the process of legitimation cannot be applied to your son because his father has the impediment of an existing prior marriage at the time of his birth. Hence, even if you contracted a valid marriage with his father, his status may not be changed from illegitimate to legitimated.
Nevertheless, the status of your son may still be changed to the same status as that of a legitimate child through the process of adoption. To legally adopt your son, you and your husband shall file a Petition for Adoption before the Family Court of the place where you are residing. Since your son is already eleven (11) years old, you have to secure his consent to the adoption. Once you have complied with all the requirements and the court, after hearing on the merits of your case, has granted your petition, your son shall be considered as your and your husband’s legitimate son for all intents and purposes of the law. As such, he shall be entitled to all the rights and obligations provided by law to legitimate children born to you without discrimination of any kind. To this end, your son shall also be entitled to love, guidance and support in keeping with the means of the family (Section 17, RA 8552).
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts that you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
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