Impugning legitimacy, A166-171 Family Code
1. Concept
1) Impugn – means “to assail by words or arguments”. (Merriam-Webster Online Dictionary)
2) Legitimacy – means “the quality or state of being legitimate”. (Merriam-Webster Online Dictionary)
3) Impugning legitimacy – refers to the act of assailing or questioning the status of children as to whether they are marital or nonmarital children.
a. Legitimacy v. Filiation
Legitimacy and filiation are two different concepts. Therefore, while the law grants the husband the sole right to impugn his child’s legitimacy, the same child may bring an action to establish that she is not filiated to her mother’s husband. (Ko v. Republic, G.R. No. 210984, April 12, 2023, Per Leonen, SAJ.)
Ko v. Republic, G.R. No. 210984, April 12, 2023, Per Leonen, SAJ.:
• This right to establish filiation is consistent with Article 164 of the Family Code and the presumption of legitimacy. The concept of legitimacy is straightforward: it is a civil status established if the person is born during the subsistence of marriage. Filiation, on the other hand, is a relationship, the state of being someone’s offspring; it is determined mainly by biology. It may be the law that solely declares who are legitimate children, but in no way can it alter blood relationships.
• Confusion arises because our legal concept of legitimacy assumes filiation when legitimacy and filiation are two different concepts.[30] To recall Article 164 of the Family Code provides that “[c]hildren conceived or born during the marriage of the parents are legitimate.” Thus, Article 164 assumes two things: (1) that the child was born during the subsistence of a marriage; and (2) that this subsisting marriage is the marriage of their parents.
• The reality, however, is that a child can be born during the subsistence of a marriage, but not necessarily that of their biological parents. Nonetheless, under Concepcion, children born under similar circumstances would be legitimate, but doubts as to their filiation and identity will persist. For this reason, children should be allowed, as the law allows them, to establish their filiation notwithstanding the presumption of legitimacy. To reiterate, legitimacy and filiation are conceptually distinct.
• This Court recognized this conceptual difference in Estate of Rogelio Ong v. Diaz. In that case, this Court allowed the conduct of DNA testing to compel the putative father’s estate to recognize the minor child and give support, notwithstanding the child’s birth during the subsistence of her mother’s marriage to another man. Estate of Ong is notable because the child is legitimate under the law; she was born during the subsistence of her mother’s marriage to another man, not the deceased Rogelio Ong. Nevertheless, the child was allowed to prove her filiation to her putative father primarily to get the recognition that she was the deceased’s child and to get support. In Estate of Ong, a legitimate child was allowed to establish her filiation to a person, not her mother’s husband.
• In the same way that the child in Estate of Ong was allowed to bring an action to establish filiation, Jamie Shaye should likewise be allowed to establish her filiation to petitioner. However, it must be emphasized that the choice to do so would be hers and hers alone. After all, it is her interests that would be affected by such action.
• The presumption of legitimacy and this Court’s ruling in Concepcion are based on a laudable purpose: upholding the best interest of the child. However, Concepcion defined the “best interest of the child” in terms of successional rights.
• The law, reason and common sense dictate that a legitimate status is more favorable to the child. In the eyes of the law, the legitimate child enjoys a preferred and superior status. He is entitled to bear the surnames of both his father and mother, full support and full inheritance. On the other hand, an illegitimate child is bound to use the surname and be under the parental authority only of his mother. He can claim support only from a more limited group and his legitime is only half of that of his legitimate counterpart[.]
• Some may agree that having more property and successional rights are in their best interest. For others, establishing their true identity matters more than anything in the world. When the latter case is true, they should be allowed to establish their filiation, regardless of any presumption or legal fiction to the contrary.
See: Original Decision
2. Grounds of impugning legitimacy
a. Physically impossibility of sexual intercourse
Art. 166. Legitimacy of a child may be impugned only on the following grounds:
(1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of:
(a) the physical incapacity of the husband to have sexual intercourse with his wife;
(b) the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or
(c) serious illness of the husband, which absolutely prevented sexual intercourse; x x x
Liyao, Jr. v. Tanhoti-Liyao, G.R. No. 138961, March 7, 2002, Per De Leon, Jr., J.:
• The fact that Corazon Garcia had been living separately from her husband, Ramon Yulo, at the time petitioner was conceived and born is of no moment. While physical impossibility for the husband to have sexual intercourse with his wife is one of the grounds for impugning the legitimacy of the child, it bears emphasis that the grounds for impugning the legitimacy of the child mentioned in Article 255 of the Civil Code may only be invoked by the husband, or in proper cases, his heirs under the conditions set forth under Article 262 of the Civil Code. Impugning the legitimacy of the child is a strictly personal right of the husband, or in exceptional cases, his heirs for the simple reason that he is the one directly confronted with the scandal and ridicule which the infidelity of his wife produces and he should be the one to decide whether to conceal that infidelity or expose it in view of the moral and economic interest involved. It is only in exceptional cases that his heirs are allowed to contest such legitimacy. Outside of these cases, none – even his heirs – can impugn legitimacy; that would amount o an insult to his memory.
• It is therefor clear that the present petition initiated by Corazon G. Garcia as guardian ad litem of the then minor, herein petitioner, to compel recognition by respondents of petitioner William Liyao, Jr, as the illegitimate son of the late William Liyao cannot prosper. It is settled that a child born within a valid marriage is presumed legitimate even though the mother may have declared against its legitimacy or may have been sentenced as an adulteress. We cannot allow petitioner to maintain his present petition and subvert the clear mandate of the law that only the husband, or in exceptional circumstances, his heirs, could impugn the legitimacy of a child born in a valid and subsisting marriage. The child himself cannot choose his own filiation. If the husband, presumed to be the father does not impugn the legitimacy of the child, then the status of the child is fixed, and the latter cannot choose to be the child of his mother’s alleged paramour. On the other hand, if the presumption of legitimacy is overthrown, the child cannot elect the paternity of the husband who successfully defeated the presumption.
See: Original Decision
b. Proof of biological or other scientific reasons; exception
Art. 166. Legitimacy of a child may be impugned only on the following grounds:
x x x
(2) That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the instance provided in the second paragraph of Article 164; x x x
1) [W]hile scientific proof is allowed to impugn legitimacy under Article 166(2) of the Family Code, the same type of proof should also be allowed to establish filiation under Article 175 in relation to Article 172, paragraph 2(2) – i.e., any other means allowed by the Rules of Court. One of these means is through the use of DNA evidence under A.M. No. 06-11-5-SC. (Santiago v. Jornacion, G.R. No. 230049, October 6, 2021, Per Carandang, J.)
2) The presumption that a child born in wedlock is legitimate is only a disputable presumption. This presumption may be overthrown using the grounds enumerated in Article 166 of the Family Code. One of these grounds… is biological or scientific proof. (Yap v. Yap, G.R. No. 222259, October 17, 2022, Per Leonen, SAJ.)
3) DNA is the fundamental building block of a person’s entire genetic make-up. DNA is found in all human cells and is the same in every cell of the same person. Genetic identity is unique. Hence, a person’s DNA profile can determine his identity. (Estate of Ong v. Diaz, G.R. No. 171713, December 17, 2007, Per Chico-Nazario, J.)
4) DNA analysis is a procedure in which DNA extracted from a biological sample obtained from an individual is examined. The DNA is processed to generate a pattern, or a DNA profile, for the individual from whom the sample is taken. This DNA profile is unique for each person, except for identical twins. (Estate of Ong v. Diaz [2007], supra.)
See: A.M. No. 06-11-5-SC
Ordoña v. Local Civil Registrar of Pasig City, En Banc, G.R. No. 215370, Per Inting, J.:
• We must also appraise technological developments that have made paternity determinations exact and foolproof. One such progress is DNA testing. When Article 170 of the Family Code was deliberated upon, the advantages that we now have of resorting to DNA testing to establish paternity were not available. The framers of Article 170 were clearly and convincingly not cognizant of this scientific testing because, otherwise, they would have mentioned or referred to it. But with DNA testing, it has become illogical and contrary to reason to continue denying to the wife the standing to question or challenge her own child’s legitimacy.
• Technological developments have made the overarching power of presumptions such as the presumption of legitimacy and its concomitant bar-rule or preclusion rule anachronistic and arbitrary because the presumptions these doctrines hold can already be easily debunked by science. The situation is akin to putting premium to form over undeniable substance should we continue to restrict the standing to impugn legitimacy to the husband and only exceptionally his heirs and deny this same personality to the wife despite the availability of infallible means to establish the wife’s claim of illegitimacy.
See: Original Decision
c. Vitiated authorization or ratification for artificial insemination
Art. 166. Legitimacy of a child may be impugned only on the following grounds:
x x x
(3) That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence. (255a)
3. Legal standing
1) It must be emphasized that the direct action to impugn the legitimacy of a child must be brought by the proper parties and within the period limited by law. (Ordoña v. Local Civil Registrar of Pasig City, En Banc, G.R. No. 215370, November 9, 2021, Per Inting, J.)
2) [T]he express provisions of law identify the proper parties who can impugn a child’s legitimated status. Article 182 of the Family Code provides that, “Legitimation may be impugned only by those who are prejudiced in their rights, within five years from the time their cause of action accrues.” (Republic v. Boquiren, G.R. No. 250199, February 13, 2023, Per Inting, J.)
2) [Articles 164, 166, 170 and 171 of the Family Code] govern a situation where a husband (or his heirs) denies as his own a child of his wife. Thus, under Article 166, it is the husband who can impugn the legitimacy of said child by proving: (1) it was physically impossible for him to have sexual intercourse, with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child; (2) that for biological or other scientific reasons, the child could not have been his child; (3) that in case of children conceived through artificial insemination, the written authorization or ratification by either parent was obtained through mistake, fraud, violence, intimidation or undue influence. Articles 170 and 171 reinforce this reading as they speak of the prescriptive period within which the husband or any of his heirs should file the action impugning the legitimacy of said child. Doubtless then, the appellate court did not err when it refused to apply these articles to the case at bench. (Benitez-Badua v. CA, G.R. No. 105625, 24 January 1994, Per Puno, J.)
a. Mother’s impugnment, invalid
Art. 167. The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. (256a)
Ordoña v. Local Civil Registrar of Pasig City, En Banc, G.R. No. 215370, November 9, 2021, Per Inting, J.:
• Richelle Busque Ordoña (petitioner) was married to a certain Ariel O. Libut (Ariel) on October 10, 2000 in Las Piñas City. In December 2005, petitioner went to Qatar for work until 2008 when she discovered that Ariel had an illicit relationship. This prompted her to return to the Philippines and separate from him. Despite their eventual separation, petitioner has not yet filed a petition for annulment of her marriage to Ariel.
• Thereafter, in April 2008, petitioner applied for another work in Abu Dhabi, United Arab Emirates (UAE) where she met Allan D. Fulgueras (Allan), her former colleague in Qatar. She and Allan engaged in an intimate relationship which resulted in petitioner’s pregnancy with Allan as the purported father. Thus, petitioner went back to the Philippines sometime in September 2009. On January 26, 2010, petitioner gave birth to a son in a hospital in Pasig City. In the Certificate of Live Birth, the child was given the name “Alrich Paul Ordoña Fulgueras” with “Allan Demen Fulgueras” as the purported father.
• Here, as correctly opined by Associate Justice Estela M. Perlas-Bernabe, petitioner is barred from impugning Alrich Paul’s presumed legitimacy considering the prohibition under Article 167 of the Family Code. Article 167 provides that “[t]he child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.”
• [T]he rule is that the mother is barred from impugning or declaring against the legitimacy of her child, and only the father, or in exceptional instances, his heirs, can contest in an appropriate action the legitimacy of a child born to his wife based on any of the grounds enumerated under Article 166 of the Family Code.
See: Original Decision
b. Children questioning their legitimacy
De Jesus v. The Estate of Decedent Juan Gamboa Dizon, G.R. No. 142877, October 2, 2001, Per Vitug, J.:
• [I]n an attempt to establish their illegitimate filiation to the late Juan G. Dizon, petitioners, in effect, would impugn their legitimate status as being children of Danilo de Jesus and Carolina Aves de Jesus. This step cannot be aptly done because the law itself establishes the legitimacy of children conceived or born during the marriage of the parents. The presumption of legitimacy fixes a civil status for the child born in wedlock, and only the father, or in exceptional instances the latter’s heirs, can contest in an appropriate action the legitimacy of a child born to his wife. Thus, it is only when the legitimacy of a child has been successfully impugned that the paternity of the husband can be rejected.
• Respondents correctly argued that petitioners hardly could find succor in Divinagracia. In said case, the Supreme Court remanded to the trial court for further proceedings the action for partition filed by an illegitimate child who had claimed to be an acknowledged spurious child by virtue of a private document, signed by the acknowledging parent, evidencing such recognition. It was not a case of legitimate children asserting to be somebody else’s illegitimate children. Petitioners totally ignored the fact that it was not for them, given the attendant circumstances particularly, to declare that they could not have been the legitimate children, clearly opposed to the entries in their respective birth certificates, of Danilo and Carolina de Jesus.
• The rule that the written acknowledgment made by the deceased Juan G. Dizon establishes petitioners’ alleged illegitimate filiation to the decedent cannot be validly invoked to be of any relevance in this instance. This issue, i.e., whether petitioners are indeed the acknowledged illegitimate offsprings of the decedent, cannot be aptly adjudicated without an action having been first been instituted to impugn their legitimacy as being the children of Danilo B. de Jesus and Carolina Aves de Jesus born in lawful wedlock. Jurisprudence is strongly settled that the paramount declaration of legitimacy by law cannot be attacked collaterally, one that can only be repudiated or contested in a direct suit specifically brought for that purpose. Indeed, a child so born in such wedlock shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as having been an adulteress.
See: Original Decision
4. Subsequent marriage w/n 365 days termination of prior marriage, A168
Art. 168. If the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary:
(1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within three hundred days after the termination of the former marriage;
(2) A child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage. (259a)
a. Born before 180 days
Art. 168. If the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary:
(1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within three hundred days after the termination of the former marriage; x x x
b. Born after 180 days
Art. 168. If the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary:
x x x
(2) A child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage. (259a)
5. Burden of proof
Art. 169. The legitimacy or illegitimacy of a child born after three hundred days following the termination of the marriage shall be proved by whoever alleges such legitimacy or illegitimacy. (261a)
6. Prescriptive period
a. When 1-year prescription
Art. 170. The action to impugn the legitimacy of the child shall be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded. x x x
1) 1-year prescriptive period: Paragraph 1, Article 170 provides for a 1-year prescriptive period for any action to impugn legitimacy of a child reckoned from the knowledge of the birth or it recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded;
2) Article 170 provides that only the husband and, in some instances, his heirs can bring this direct action but only on specified grounds. Even the mother is prohibited by law from declaring against her child’s legitimacy. (Ko v. Republic [2023], supra.)
Ko v. Republic, G.R. No. 210984, 12 April 2023, Per Leonen, J.:
• The presumption of legitimacy was expounded in Concepcion v. Court of Appeals (2005), where the child was declared legitimate by virtue of the mother’s first marriage, this despite the mother’s declaration that her child was not fathered by her first husband. In that case, this Court prohibited the putative father from impugning the legitimacy of the child because he is not the husband allowed by law to do so.
• Similar to the child in Concepcion, Jamie Shaye retains her legitimate status despite the entries in her birth certificate and the declaration of her mother, Shalimar, that her father is not Kerwin but petitioner. Furthermore, not being the husband, petitioner has no right under the law to impugn Jamie Shaye’s legitimacy by filing the Petition for voluntary recognition.
See: Original Decision
b. When 2-year prescription
Art. 170. x x x
If the husband or, in his default, all of his heirs do not reside at the place of birth as defined in the first paragraph or where it was recorded, the period shall be two years if they should reside in the Philippines; x x x
c. When 3-year prescription
Art. 170. x x x
If the husband or, in his default, all of his heirs do not reside at the place of birth as defined in the first paragraph or where it was recorded, the period shall be x x x three years if abroad. x x x
d. Concealment or birth unknown
Art. 170. x x x
x x x If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, whichever is earlier. (263a)
7. Grounds of heirs
Art. 171. The heirs of the husband may impugn the filiation of the child within the period prescribed in the preceding article only in the following cases:
(1) If the husband should die before the expiration of the period fixed for bringing his action;
(2) If he should die after the filing of the complaint without having desisted therefrom; or
(3) If the child was born after the death of the husband. (262a)
Babiera v. Catotal, G.R. No. 138493, 15 June 2000, Per Panganiban, J.:
• Petitioner contends that respondent has no standing to sue, because Article 171 of the Family Code states that the child’s filiation can be impugned only by the father or, in special circumstances, his heirs. She adds that the legitimacy of a child is not subject to a collateral attack.
• This argument is incorrect. Respondent has the requisite standing to initiate the present action. Section 2, Rule 3 of the Rules of Court, provides that a real party in interest is one “who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit.” The interest of respondent in the civil status of petitioner stems from an action for partition which the latter filed against the former. The case concerned the properties inherited by respondent from her parents.
• Moreover, Article 171 of the Family Code is not applicable to the present case. A close reading of this provision shows that it applies to instances in which the father impugns the legitimacy of his wife’s child. The provision, however, presupposes that the child was the undisputed offspring of the mother. The present case alleges and shows that Hermogena did not give birth to petitioner. In other words, the prayer herein is not to declare that petitioner is an illegitimate child of Hermogena, but to establish that the former is not the latter’s child at all. Verily, the present action does not impugn petitioner’s filiation to Spouses Eugenio and Hermogena Babiera, because there is no blood relation to impugn in the first place.
See: Original Decision
