Dear PAO,
My sister filed a petition for the declaration of her marriage with her husband as void on the ground of psychological incapacity. The court granted the petition and declared the marriage of my sister as

void ab initio. My sister had five children during the time of her marriage. Will the children be considered illegitimate or legitimate?
Winnie

Dear Winnie,
Based on the facts you have given us, there is no doubt that the children of your sister are legitimate. The law provides that children conceived or born during the marriage of the parents are legitimate (Article 164, Family Code of the Philippines). Since your sister had five children during or inside the time of her marriage, they are considered as legitimate children. On the other hand, children conceived and born outside a valid marriage are illegitimate (Article 165, Family Code of the Philippines).

The declaration of the court that your sister’s marriage is void due to psychological incapacity does not change the status of your children. According to Section 54 of the Family Code:

 “Art. 54. Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate.”

Article 36 cited in this provision refers to void marriage due to psychological incapacity. This provision applies squarely to your sister’s marriage, which was declared void due to psychological incapacity. In accordance with the aforementioned law, the five children of your sister are still considered as legitimate children even after the declaration of marriage as void since the fact remains that the children were born before the final declaration of nullity. Thus, the said children have all the rights as legitimate children, and this does not change even after the final order by the court declaring the marriage as void.

We hope that we were able to sufficiently address your query. We remind you, however, that this opinion is solely based upon the facts you have given us and our appreciation of the same. The opinion may vary when the facts are changed.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to This email address is being protected from spambots. You need JavaScript enabled to view it.