Challenging the legitimacy of a child

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Persida Acosta

Persida Acosta

Dear PAO,
I’ve been working as a corporate branch manager here in Manila for almost a decade now. Considering the nature of my work, I seldom get to see my family in my home province. Despite this, I make sure that my wife and children live comfortably by consistently providing for them. I heard rumors, however, that my wife was having an affair with another man. As much as I don’t want these rumors to affect our relationship, I was forced to face the truth when my wife told me that she was pregnant. This was very hard for me to accept considering that we haven’t been intimate for a long time, and I know for a fact that it is impossible for me to impregnate her while I was away. This confirmed my fear of my wife’s infidelity.

As much as I don’t want to blame the unborn child, I also don’t want to spend my limited resources on a child who is not mine. Because of this, I want to know how I can legally disconnect myself from my wife’s child with another man. Please advice me on my legal rights about this. Thanks.
Mr. B

Dear Mr. B,
It appears that you intend to disown the child of your wife because of your suspicion that the child was conceived with another man. This legally translates to your desire to impugn the legitimacy of your wife’s child. To do this, you must understand that despite your strong belief that the child of your wife 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. This is imperative because the law provides that “children conceived or born during the marriage of the parents are legitimate.” (Article 164, Family Code of the Philippines)

In impugning the legitimacy of a child, Article 166 of the Family Code of the Philippines law 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:

(a) xxx;

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

(c) xxx

xxx xxx xxx.”

Considering the aforementioned provisions, you must 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 child was conceived. Should you be able to convince the court on your claim and allegations, then it may declare that the child is the illegitimate child of your wife without any legal relation to you. As a consequence, the child will lose his rights over you as his father including the child’s right to demand support from you and receive a share from your estate. The law, however, 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.” (Ibid.)

It is imperative that the action to impugn the legitimacy of a child must be filed within the aforementioned period. Otherwise, a petition to impugn a child’s legitimacy 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.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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