• When a wife gets pregnant by another man

    Persida Acosta

    Persida Acosta

    Dear PAO,
    My wife and I got married three years ago but after a year, we decided to separate because of some issues we cannot resolve. Now, I heard that my wife is currently pregnant. This bothers me because I heard stories from my friends where the wife seeks support for the child from the husband even though the latter is not the father of the child. If this is true, what are my rights? I am certain that I am not the father of the child she is carrying.

    Dear Rufus,
    Under Article 164 of the Family Code, children conceived or born during the marriage of the parents are legitimate. This rule is founded on the broad principles of natural justice and the supposed virtue of the mother instituted to protect innocent offspring from the odium of illegitimacy (Cabatania vs. Court of Appeals, G.R. No. 124814, October 21, 2004).

    Thus, 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 and considering that your marriage to your wife is still subsisting, the child she is carrying, if born, will be presumed to be your child.

    Notwithstanding this fact, you are granted the right to dispute your paternal tie to the child, should the latter be born. 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 due to 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 (Article 166, Family Code). Of course, the latter ground excludes instances where the father agreed to artificial insemination unless his consent thereto was obtained through mistake, fraud, violence, intimidation, or undue influence.

    Thus, should your wife subsequently give birth to the child she is carrying in her womb, you may use any of the grounds mentioned above to question your relation to the child.

    Bear in mind, however, that an action to impugn the legitimacy may only be filed within the prescriptive period provided by law. The husband is only allowed to file a petition in court within the following periods: 1) one 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; 2) two years if the husband resides in another city or municipality in the Philippines; or 3) three years if he resides abroad (Article 170, Family Code). Otherwise, the husband will lose his right to question the legitimacy of the child. Hence, we advise you to keep abreast with information concerning the pregnancy of your wife and, should the child be born, file the action to impugn the legitimacy of the child within the period applicable to your case.

    We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts that 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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    1 Comment

    1. I am a worker of a Christian organization. One of our benefits was a motorcycle which our organization arranges for us to have to be used for our day-to-day work. This arrangement requires the workers to pay the monthly amortization of the motorcycle. After months of paying, our National Director decided I am no longer wanted. So I was terminated without any apparent reason except I did not pass his standard. I did not violate any policy of the organization. I accepted the decision. However, they took from me the motorcycle from me. I am willing to continue paying it. What should I do?