Son considered legitimate even if mother denies him

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Persida Acosta

Persida Acosta

Dear PAO,
I am married but I have a one-month-old son from another man. I honestly do not know how to go about my life when I found out I was pregnant and even until now that I have already given birth to my son. Although my husband and I are civil with each other (we have been separated for five years already), I have never mentioned to him about my son. We never had a child of our own because it was not his priority, he said. That is actually the main reason why we ended up separated.

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Anyway, I want to process my son’s birth certificate now. I want him to use my surname and I also want to indicate the name of his real father. My cousins told me that it may not be possible because it is assumed that my son is that of my husband. Is this true, even if I am already saying that he is not my husband’s child? Is there any other way? Please advise me on this matter.
Avie

Dear Avie,
If you and your husband are still lawfully married to each other, that is, your marriage has not yet been annulled or declared null and void by the court, then your son is considered as your legitimate child with your husband. This is in view of the provisions of the Family Code of the Philippines, particularly Article 164 (1), which states that children who are conceived or born during the marriage of their parents are legitimate. Corollary, he will bear your surname and that of your husband. (Article 174, Id.)

This holds true despite the fact that you are expressly declaring that your son is not of your husband but that of another man. The law protects the interest of the child and it is clearly provided under Article 167 of the Family Code which states, “The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.”

Moreover, the law only vests upon the husband or, in a proper case, any of his heirs, the right to dispute or impugn the child’s legitimacy and it may only be brought to court within the periods specified under the law. (Article 170, Id.)

Please note that your husband may only impugn your son’s legitimacy on the following grounds: (1) That it was physically impossible for him to have sexual intercourse with you within the first 120 days of the 300 days that immediately preceded the birth of your son because of: (a) his physical incapacity to have sexual intercourse with you; (b) the fact that you are living separately in such a way that sexual intercourse was not possible; or (c) his serious illness, 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 your husband, except if your son was conceived as a result of artificial insemination as provided in the second paragraph of Article 164; or (3) That in case your son was conceived through artificial insemination, written authorization or ratification by either of you was obtained through mistake, fraud, violence, intimidation or undue influence.” (Article 166, Id.)

Please note further that the heirs of the husband may only impugn the filiation of the child if: (1) the husband should die before the expiration of the period fixed for bringing his action; (2) he should die after the filing of the complaint without having desisted therefrom; or (3) the child was born after the death of the husband. (Article 171, Id.)

Only if the court renders judgment favorable to your husband, impugning your son’s legitimacy, may the latter be considered as an illegitimate child and lawfully use your surname. Insofar as declaring the real father of your son in his birth certificate, this may only prosper if that father will lawfully acknowledge your son as his.

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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