Court gives child new father



A child born within a bigamous marriage is considered the legitimate child of the first marriage.

A newlywed couple had a son. Unfortunately, just two years after they got married, the husband sought the annulment of his marriage on the ground of bigamy: his wife was previously married and had never annulled her first marriage. The wife never denied her previous marriage but claimed it was a sham and that she never lived with her first husband.

The Regional Trial Court ruled that the first marriage was valid and subsisiting. As a result, her second marriage was annulled for being bigamous and her son was deemed an illegitimate child, born out of wedlock. The Court of Appeals (CA), on the other hand, reversed and held that their son was the legitimate son of the wife and her first husband and not the second husband.

[the wife]was legitimately married to Mario Gopiao when the child Jose Gerardo was born. Therefore, the child—under the law—is the legitimate child of the legal and subsisting marriage between [the wife]and Mario Gopiao; he cannot be deemed to be the illegitimate child of the void and non-existent ‘marriage’ between [the wife]and [Gerardo].

The Supreme Court (SC) affirmed the decision of the CA. Citing Article 164 and 167 of the Family Code, it ruled that a child conceived or born during the marriage of his parents is legitimate even when the mother declares against its legitimacy because the law requires every reasonable presumption to be made for the child’s best interest and in favor of legitimacy. The only way to impugn the legitimacy of the the child is to show that it was physically impossible for the wife and her first husband to have sexual intercourse within the first 120 days of the 300 days which immediately preceded the birth of the child.

To rebut the presumption, 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. Or, the husband was in prison during the period of conception, unless it appears that sexual union took place through the violation of prison regulations.

Circumstances revealed that all the parties to the case lived in Quezon City. During the time the wife was living with her second husband, her first husband only lived four kilometers away. Thus, the presumption that no sexual intercourse could have taken place between the wife and her first husband was not established beyond reasonable doubt.

The SC reiterated that public policy demands that there be no compromise on the status and filiation of a child.

For reasons of public decency and morality, a married woman cannot say that she had no intercourse with her husband and that her offspring is illegitimate. The proscription is in consonance with the presumption in favor of family solidarity. It also promotes the intention of the law to lean toward the legitimacy of children.

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Moreover, the law itself establishes the status of a child from the moment of his birth… The status of a child is determined by the law itself and proof of filiation is necessary only when the legitimacy of the child is being questioned.

Consequently, the second husband, despite being the paternal father, was considered an outsider and could not impugn the legitimacy of his child. As such, he could not be granted visitorial rights (Concepcion v. Court of Appeals, G.R. No. 123450, 31 August 2005, J. Corona).


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