• Parents’ separation affects child’s legitimacy


    Persida Acosta

    Dear PAO,
    My friend was born in 1995. Her parents got married in 1992 but they separated in 1997 when my friend was about to turn two years old. She always assumed that she is a legitimate child but someone told her recently that she is illegitimate because of her parents’ separation. Is this correct? Please advise us on this matter.

    Dear Elsy,
    A child’s natural filiation to his or her parents is determined by provisions of our law. Such natural filiation may either be legitimate or illegitimate. Pursuant to Article 164 of Executive Order 209, or the Family Code of the Philippines, “children conceived or born during the marriage of the parents are legitimate.” A contrario, children who are conceived and born outside of a valid marriage are considered illegitimate, unless otherwise provided in the code. (Article 165, Id.)

    In your letter, you said your friend’s parents were married in 1992 and that she was born in 1995. Accordingly, it is submitted that your friend is a legitimate child as she was conceived and born at the time when her parents were already married to each other.

    Now as to the effect of her parents’ separation on her status as a legitimate child, we submit a qualified answer. If her parents merely separated, she remains to hold the status of a legitimate child. Mere separation of spouses-parents does not affect their natural filiation with their children. The same holds true even if the spouses have been declared by the court as legally separated pursuant to the provisions of our Family Code as the decree of legal separation does not severe the marriage bonds, though it entitles the spouses to live separately from each other. (Article 63 (1), Id.)

    Also, your friend’s legitimate status will not be affected if her parents separated for the reason that a decree of annulment of marriage pursuant to Article 45 of the code was granted to them in 1997. The reason is that, in voidable marriages, the legitimate status of the child born during the marriage is not affected considering that the union between the spouses was validly created, only that such marriage was subsequently invalidated by the court in view of a defect in any of the essential requisites to a valid marriage, because either party was physically incapable of consummating the marriage with the other and such incapacity continues and appears to be incurable, or because either party was afflicted with a sexually-transmissible disease, which was found to be serious and appears to be incurable. (Id.) The same holds true if her parents separated on account of a declaration of the nullity of their marriage, rendered in 1997, on the basis of psychological incapacity as expressed under Article 36 of the same code. The applicable law on both situations is Article 54 of the Family Code that provides: “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. x x x”

    If, however, the parents of your friend separated in view of a declaration rendered in 1997 of nullity of their marriage, the cause of which is the absence of any essential or formal requisites to the marriage, that their marriage is an incestuous one or their marriage is against public policy (Articles35, 37 and 38, Id.), then your friend will be considered as an illegitimate child. In such a case, the marriage is void ab initio or void from the beginning. Again, Article 165 of the code provides that “children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this code.”(emphasis ours)

    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 dearpao@manilatimes.net


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