Child legitimate even if mom declares vs his legitimacy

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Persida Acosta

Persida Acosta

Dear PAO,
My husband and I ended our relationship three years ago. We just did not see things eye to eye. I really wanted to have kids, but he thought that they will just get in his way. He was more focused on his career than building a family. There was no formality or legality to our separation and we remain civil to each other to this day. My concern is that I am now pregnant and will be giving birth in two months. I want the child to carry my surname, but my friend told me that the child will have to carry the surname of my husband. Is this correct even if both my husband and I know that the child is not his? Can I just make an affidavit and submit that as proof that the child is my illegitimate child from another man? Please advise me on this matter.
Heidi

Dear Heidi,
The provision of our law is explicit: “Children conceived or born during the marriage of the parents are legitimate. x x x”(Article 164 (1), Family Code of the Philippines). Accordingly, if your husband is alive during the conception or birth of your child, the child will be presumed to be your and your husband’s legitimate child. It follows also that this child will have to carry the surname of your husband, because pursuant to Article 174 of the same law, legitimate children have the right to bear the surnames of their parents.

The same is true even if you are certain that the child is not your husband’s, that your husband knows this fact
or that you have declared by means of an affidavit the child was a result of your adulterous affiliation with another man. It is clearly stated under the law that a child shall be considered legitimate although the mother may have declared against his legitimacy or may have been sentenced as an adulteress (Article 167, Ibid.).

The only way for your child to be considered as illegitimate and not use the surname of your husband is if the latter impugns the child’s legitimacy on any of 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

(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”(Article 166, Id.).

Please be advised that your husband must bring the action to impugn the legitimacy of your child within one (1) year from the knowledge of the child’s birth or its recording in the civil register, if he resides in the same city or municipality where the birth took place or was recorded. If he resides elsewhere in the Philippines, he must bring the action within two (2) years; and if residing abroad, within three (3) years from the knowledge of the child’s birth or its recording in the civil register(Article 170, Id.).

We hope that we were able to answer your queries. Please be reminded that this advice is 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.

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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