Impugning legitimacy of a child

2
Persida Acosta

Persida Acosta

Dear PAO,
It’s been years since my wife and I decided to call it quits. Since our separation, I’ve heard numerous rumors about my wife. She is allegedly having affairs with different men. I could not care less about her rumored relationships, but what concerns me is that she just gave birth to a child, and from what I heard, the child is fatherless. May I know if this could have repercussions on me as her legal husband?
Sting

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Dear Sting,
There is a presumption that children conceived or born during marriage are legitimate children of the spouses (Concepcion v. Court of Appeals, G.R. No. 123450, 31 August 2005). Following this rule, the child that your wife has delivered could be presumed to be your child because you are the legal husband according to your narration.

Nonetheless, the presumption is not conclusive, which means that you may dispute your relationship or filiation to the child. Under Article 166 of the Family Code, a father may impugn the legitimacy of a child if he can prove that copulation between the husband and wife within the first 120 days of the 300 days immediately preceding the birth of the child was physically impossible because of the father’s incapacity to have sexual intercourse by reason of serious illness or otherwise, or the fact that he and his wife were living separately in such a way that sexual intercourse was not possible like in the case where the husband is living abroad when the child was conceived. The father may also impugn his relation to the child by showing proof that, for biological or other scientific reasons, the child could not have been his.

Bear in mind, however, that the right to impugn the legitimacy of a child, i.e. disown the child, may only be filed within the prescriptive periods provided by law, particularly, one (1) year from the knowledge of the birth or its recording in the civil register if the husband resides in the same city where the child was born, two (2) years if the husband resides in another city or municipality in the Philippines, or three (3) years if he resides abroad (Art. 170, Id.) Failure to file the action within these prescriptive periods will bar the right of the husband to dispute his filiation with the child.

Based on the foregoing, you have the right to impugn the legitimacy of the child that your wife has just given birth. You may prove the same by showing impossibility of sexual congress between you and your wife and/or by presenting biological or scientific reasons that the child is not yours. As cautioned above, the action to impugn the legitimacy of the child is only allowed to be filed within a specified period. Hence, we highly advise you to file the necessary action in court without delay to avoid prescription from setting in.

We hope we were able to sufficiently answer your concerns. Please bear in mind that our opinion is based on the facts you presented and our appreciation of the same. Our opinion may vary if 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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2 Comments

  1. After Prescription, is the admission of a wife that the child is not of the legal husband on electronic evidence that is a SMS on mobile phone for many instances acceptable in court?