My wife and I have been married for ten years now. Just like all married couples, we have had our share of fights and disagreements. About two years ago, we had a fight that led me to leave our conjugal home. We were able to patch things up months after I left and then my wife became pregnant. She gave birth late last year, but truth be told, I am uncertain if our son is really mine. Can I legally question my relation with this child? I just want to be sure because I do not want to live with a child that is not really mine. Please advise.
As a rule, a child who is conceived or born during the marriage of his parents is considered as a legitimate child (Article 164, New Civil Code of the Philippines). Accordingly, your son shall be considered your legitimate child because, although you have been physically separated from your wife for a period of time, he was still conceived and born during the subsistence of your marriage.
Nevertheless, we do not disregard the doubts that you may be having as to your filiation with your son given your physical separation from your wife at a seemingly close period to when he was conceived. You may opt to talk to your wife first and discuss with her your doubts. You may also consider securing a Deoxyribonucleic acid test or DNA test.
If your wife is not amenable to such test and you wish to pursue a legal course of action, you may question the legitimacy of your son by filing an action in court to impugn such legitimacy. Please note that such action may only rest on any of the following grounds mentioned under Article 166, Ibid.:
“(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.” (Emphasis supplied)
Kindly be advised as well that such action may only be brought to court within one year from the knowledge of the birth of your son or its recording in the civil register, if you reside in the city or municipality where the birth took place or was recorded. The action may be brought within two years from the knowledge of the birth or its recording if you reside elsewhere in the Philippines, or within three years if you lived abroad. (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 firstname.lastname@example.org