Children born during marriage of parents are legitimate

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Persida Acosta

Persida Acosta

Dear PAO,
My parents got married, and their union was blessed with three children, including me. Unfortunately, their relationship turned sour and my mother left our house to live with another man. After several months, my father died. In his funeral, my mother showed up with a bulging belly. She said the father of the child is our father. We believe that the child’s father is her paramour because at the time the fetus was conceived, my parents were already separated. Is her claim tenable? If so, how can we contest it?
Mitoy

Dear Mitoy,
It appears from your narration that your parents did not legally terminate their marriage either by declaration of nullity or annulment of marriage. Rather, they only separated in fact (de facto) when your mother left your house.

If this is the case, then the child which your mother conceived after she left your house, if subsequently born, would still be presumed legitimate being born during the wedlock of your parents. Under Article 164 of the Family Code, children conceived or born during the marriage of the parents are legitimate. Yet, the presumption is not conclusive. It may be rebutted or contested in accordance with law.

Under Article 166 of the Family Code, the legitimacy of the child may be impugned by showing that: (1) 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; (2) for biological or other scientific reasons, the child could not have been of the husband, except in authorized artificial insemination; or (3) in case of children conceived through artificial insemination, there was mistake, fraud, violence, intimidation, or undue influence in obtaining the written consent of either parent. The physical impossibility mentioned above contemplates a situation where the husband is physically incapacitated or have a serious illness which absolutely prevented sexual intercourse, or the spouses were living separately in such a way that sexual intercourse was not possible. These grounds are exclusive. Hence, it must be shown that any of the foregoing grounds exists to support an action to impugn the legitimacy of a child.


You mentioned that your parents are already separated at the time the fetus was conceived. This is not enough. To rebut the presumption, it must be shown that there was no way that the husband could be the father of the child. The separation between the spouses must be such as to make marital intimacy impossible. This may take place, for instance, when they reside in different countries or provinces and they were never together during the period of conception (Concepcion v. Court of Appeals, G.R. No. 123450, 31 August 2005).

Hence, should the child be subsequently born, he/she will be presumed a legitimate child of your parents. His/her legitimacy may only be impugned only on the grounds mentioned above. Considering that the child will be a posthumous child of your father or one born after death, you, as one of his heirs, may impugn the child’s legitimacy by filing the appropriate petition in court (Art. 172, Family Code).

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.

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