Dear PAO,
I married my second wife a few months after my first marriage was annulled. I didn’t have a child with my first wife. My second wife, however, will give birth to our son in a couple of weeks.

Am I qualified to avail of paternity leave even if the mother of my son is not my first wife? If so, can I avail of paternity leave even if my wife has not given birth yet? She has complications in her pregnancy, which requires frequent hospitalizations.
Mr. Z
 
Dear Mr. Z,
Paternity leave refers to the benefits granted to a married male employee allowing him not to report for work for seven (7) days but continues to earn the compensation therefor, on the condition that his spouse has delivered a child or suffered a miscarriage for purposes of enabling him to effectively support his wife in her period of recovery and/or in the nursing of the newly-born child (Section 3, Republic Act (RA) No. 8187). Section 3 of the Revised Implementing Rules and Regulations of RA No. 8187, sets forth the conditions to entitlement of paternity leave benefits, to wit:

“SECTION 3. Conditions to entitlement of paternity leave benefits. —

A married male employee shall be entitled to paternity benefits provided that:

a. he is an employee at the time of delivery of his child;

b. he is cohabiting with his spouse at the time she gives birth or suffers a miscarriage.

c. he has applied for paternity leave in accordance with Section 4 hereof; and

d. his wife has given birth or suffered a miscarriage.”

You may still avail of the paternity leave even if the mother of your son is only your second wife. The law provides that it shall be given to a married male employee in the private and public sectors for the first four (4) deliveries of the legitimate spouse with whom he is cohabiting (Section 1, RA No. 8187). It does not distinguish whether the employee has been previously married or not. What is important is that the employee concerned is legally married with the expectant mother at the time of availing the paternity leave.

As regards your second question, paternity leave benefits, as a rule, shall be granted to a qualified employee after the delivery by his wife. The employers, however, shall not be precluded from allowing an employee to avail of paternity leave before or during the delivery, provided, that the total number of days shall not exceed seven (7) days for each delivery (Section 5, Revised Implementing Rules and Regulations of RA No. 8187).

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.

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