Legitimate Children, A163-165 Family Code
1. Concept
Art. 164. Children conceived or born during the marriage of the parents are legitimate.
Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child. (55a, 258a)
Art. 165. Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this Code. (n)
| NB: While the Family Code uses the terms legitimate or illegitimate, the Supreme Court has shifted to using marital children to refer to legitimate children, and nonmarital children to refer to illegitimate children. This is a move away from the pejorative terms of “legitimate” and “illegitimate”. (Supreme Court n.d., ‘SC Revisits “Iron Curtain Rule” in Succession Law, Upholds Best Interest of the Child’, https://sc.judiciary.gov.ph/sc-revisits-iron-curtain-rule-in-succession-law-upholds-best-interest-of-the-child/) |
1) Marital children, a.k.a. legitimate children – are those who were conceived or born during the marriage of the parents, including artificial insemination whether either or both are donors provided they authorized or ratified such in writing before the birth of the child. (FAMILY CODE, Article 164)
2) Nonmarital children, a.k.a. illegitimate children – are those who were conceived or born outside of a valid marriage between the parents, unless otherwise provided in the Family Code. (Ibid., Article 165)
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.)
2. Filiation
Filiation must be established for a child to claim support from a putative father. (Abella v. Cabañero, G.R. No. 206647, August 9, 2017, Per Leonen, J.)
As filiation is beyond question, support follows as matter of obligation. (Montefalcon v. Vasquez, G.R. No. 165016, June 17, 2009, Per Quisumbing, J.)
a. Types
Art. 163. The filiation of children may be by nature or by adoption. Natural filiation may be legitimate or illegitimate. (n)
Filiation of children may either be:
1) By nature; or
2) By adoption.
Filiation proceedings are usually filed not just to adjudicate paternity but also to secure a legal right associated with paternity, such as citizenship, support (as in the present case), or inheritance. The burden of proving paternity is on the person who alleges that the putative father is the biological father of the child. There are four significant procedural aspects of a traditional paternity action which parties have to face: a prima facie case, affirmative defenses, presumption of legitimacy, and physical resemblance between the putative father and child. (Ong v. Diaz, G.R. No. 171713, December 17, 2007, Per Chico-Nazario, J.)
a. By nature
Art. 163. The filiation of children may be by nature or by adoption. Natural filiation may be legitimate or illegitimate. (n)
1) Under the Family Code, the classification of children is limited to either:
(a) legitimate; or
(b) illegitimate. (Arado v. Alcoran, G.R. No. 163362, 08 July 2015, Bersamin, J.)
b. By adoption
See: Domestic Adoption RA 8552, Inter-Country Adoption (RA 8043)
2. Presumption
Art. 164. Children conceived or born during the marriage of the parents are legitimate.
Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child. (55a, 258a)
1) Presumption of legitimacy: Paragraph 1, Article 164 provides for a presumption of legitimacy in favor of children, who are either: (a) conceived or (b) born during the marriage.
Ko v. Republic, G.R. No. 210984, 12 April 2023, Per Leonen, J.:
• Article 164 of the Family Code provides that “children conceived or born during the marriage are legitimate.” This means that legitimacy as a status attaches once when a person is born within wedlock. There is no dispute that Jamie Shaye was born before the marriage between her mother, Shalimar, and Kerwin was voided. Jamie Shaye is deemed born within wedlock, and, therefore, is considered a legitimate child.
• The presumption of legitimacy was expounded in Concepcion v. Court of Appeals, 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. The Court of Appeals did not err in denying petitioner’s Petition.
See: Original Decision
a. Policy
1) The law requires that every reasonable presumption be made in favor of legitimacy. (Ong v. Diaz [2007], supra.)
2) The presumption of legitimacy does not only flow out of a declaration in the statute but is based on the broad principles of natural justice and the supposed virtue of the mother. The presumption is grounded on the policy to protect the innocent offspring from the odium of illegitimacy. (Cabatania v. CA, G.R. No. 124814, October 21, 2004, Per Corona, J.)
b. Rebuttable presumption
Ordonña v. Local Civil Registrar of Pasig City, En Banc, G.R. No. 215370, 09 November 2021, Per Inting, J.:
• Article 16451 of the Family Code provides that “children conceived or born during the marriage of the parties are legitimate.” Here, petitioner admitted to being in a valid and subsisting marriage with Ariel when she conceived and gave birth to Alrich Paul. Thus, Alrich Paul is presumed to be a legitimate child of petitioner and Ariel.
• To elucidate, the presumption of legitimacy under Article 164 of the Family Code is not conclusive. It may be disputed based on the grounds and manner provided under Articles 166, 170, and 171 of the same law.
• In Concepcion v. Court of Appeals (2005), the Court ruled that the presumption of legitimacy is “quasi-conclusive” and may be rebutted or overthrown.
See: Original Decision
Concepcion v. CA, G.R. No. 123450, 31 August 2005, Per Corona, J.:
• The presumption of legitimacy proceeds from the sexual union in marriage, particularly during the period of conception. To overthrow this presumption on the basis of Article 166 (1)(b) of the Family Code, it must be shown beyond reasonable doubt that there was no access that could have enabled the husband to father the child. Sexual intercourse is to be presumed where personal access is not disproved, unless such presumption is rebutted by evidence to the contrary.
• The presumption is quasi-conclusive and may be refuted only by the evidence of physical impossibility of coitus between husband and wife within the first 120 days of the 300 days which immediately preceded the birth of the child.
• To rebut the presumption, the separation between the spouses must be such as to make marital intimacy impossible. This may take place, for instance, when they reside in different countries or provinces and they were never together during the period of conception. Or, the husband was in prison during the period of conception, unless it appears that sexual union took place through the violation of prison regulations.
• Here, during the period that Gerardo and Ma. Theresa were living together in Fairview, Quezon City, Mario was living in Loyola Heights which is also in Quezon City. Fairview and Loyola Heights are only a scant four kilometers apart.
• Not only did both Ma. Theresa and Mario reside in the same city but also that no evidence at all was presented to disprove personal access between them. Considering these circumstances, the separation between Ma. Theresa and her lawful husband, Mario, was certainly not such as to make it physically impossible for them to engage in the marital act.
• Sexual union between spouses is assumed. Evidence sufficient to defeat the assumption should be presented by him who asserts the contrary. There is no such evidence here. Thus, the presumption of legitimacy in favor of Jose Gerardo, as the issue of the marriage between Ma. Theresa and Mario, stands.
• Gerardo relies on Ma. Theresa’s statement in her answer to the petition for annulment of marriage that she never lived with Mario. He claims this was an admission that there was never any sexual relation between her and Mario, an admission that was binding on her.
• Gerardo’s argument is without merit.
• First, the import of Ma. Theresa’s statement is that Jose Gerardo is not her legitimate son with Mario but her illegitimate son with Gerardo. This declaration ― an avowal by the mother that her child is illegitimate ― is the very declaration that is proscribed by Article 167 of the Family Code.
• The language of the law is unmistakable. An assertion by the mother against the legitimacy of her child cannot affect the legitimacy of a child born or conceived within a valid marriage.
• Second, even assuming the truth of her statement, it does not mean that there was never an instance where Ma. Theresa could have been together with Mario or that there occurred absolutely no intercourse between them. All she said was that she never lived with Mario. She never claimed that nothing ever happened between them.
• Telling is the fact that both of them were living in Quezon City during the time material to Jose Gerardo’s conception and birth. Far from foreclosing the possibility of marital intimacy, their proximity to each other only serves to reinforce such possibility. Thus, the impossibility of physical access was never established beyond reasonable doubt.
• Third, to give credence to Ma. Theresa’s statement is to allow her to arrogate unto herself a right exclusively lodged in the husband, or in a proper case, his heirs. A mother has no right to disavow a child because maternity is never uncertain. Hence, Ma. Theresa is not permitted by law to question Jose Gerardo’s legitimacy.
• Finally, for reasons of public decency and morality, a married woman cannot say that she had no intercourse with her husband and that her offspring is illegitimate. The proscription is in consonance with the presumption in favor of family solidarity. It also promotes the intention of the law to lean toward the legitimacy of children.
See: Original Decision
3. No collateral attack against legitimacy and filiation
“The legitimacy and filiation of children cannot be collaterally attacked in a petition for correction of entries in the certificate of live birth.” (Miller v. Miller, G.R. No. 200344, August 8, 2019, Per Leonen, J.)
A petition for correction whose commanding intent is to impugn a child’s filiation with a parent identified in birth records—and not merely to harmonize those records with self-evident facts—will be disallowed for being such a collateral attack. (In Re: Petition for Cancellation and Correction of Entries in the Records of Birth, G.R. No. 180802, August 1, 2022, Per Leonen, SAJ.)
Ordoña v. The Local Civil Registrar of Pasig City, En Banc, G.R. No. 215370, November 9, 2021, Per Inting, J.:
• Associate Justice Alfredo Benjamin S. Caguioa aptly pointed out the Court’s pronouncement in Miller v. Miller(Miller). In that case, the Court, speaking through Associate Justice Marvic M.V.F. Leonen and relying on Braza v. The City Civil Registrar of Himamaylan City, Negros Occ.,categorically ruled that the legitimacy and filiation of children cannot be collaterally attacked in a petition for correction of entries in the certificate of live birth, the action filed in that case.The Court ruled:
Here, petitioners sought the correction of private respondent’s surname in her birth certificate registered as Local Civil Registrar No. 825. They want her to use her mother’s surname, Espenida, instead or Miller, claiming that she was not an acknowledged illegitimate child of John.
What petitioners seek is not a mere clerical change. It is not a simple matter of correcting a single letter in private respondent’s surname due to a misspelling. Rather, private respondent’s filiation will be gravely affected, as changing her surname from Miller to Espenida will also change her status. This will affect not only her identity, but her successional rights as well. Certainly, this change is substantial.
• In Braza v. The City Civil Registrar of Himamaylan City, Negros Occidental, this Court emphasized that “legitimacy and filiation can be questioned only in a direct action seasonably filed by the proper party, and not through collateral attack[.]” Moreover, impugning the legitimacy of a child is governed by Article 171 of the Family Code, not Rule 108 of the Rules of Court.
• Article 164of the Family Code provides that “children conceived or born during the marriage of the parties are legitimate.” Here, petitioner admitted to being in a valid and subsisting marriage with Ariel when she conceived and gave birth to Alrich Paul. Thus, Alrich Paul is presumed to be a legitimate child of petitioner and Ariel. However, looking at the Rule 108 petition in this case, petitioner, mother of Alrich Paul, in effect declared against her child’s legitimacy when she alleged that Alrich Paul was the child of Allan.
• Following the pronouncement in Miller, petitioner’s collateral attack of Alrich Paul’s filiation cannot be allowed in a Rule 108 proceeding. Thus, on this ground alone, the RTC should have dismissed the Rule 108 petition.
See: Original Decision
