A legitimate child is one conceived or born during the marriage of the parents.

A child born to unmarried parents who subsequently married each other, those parents not having been disqualified from marrying at the time of the child’s conception, is also considered legitimate.

The child is presumed to be the child of the husband and the wife.

A legitimate child has rights and advantages conferred by law.

These include:

(1) The right to bear the surnames of both parents

(2) The right to receive support from their parents, their ascendants, and in proper cases, their brothers and sisters, in accordance with law

(3) The right to be entitled to the full rights of inheritance enjoyed by other legitimate children under the law

In turn, parents have duties to their legal, legitimate child. These include:

1) To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means;

(2) To give them love and affection, advice and counsel, companionship and understanding;

(3) To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, self-discipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties of citizenship;

(4) To furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from bad company, and prevent them from acquiring habits detrimental to their health, studies and morals;

A child born of a valid marriage is presumed to be legitimate.

The legitimacy of a child can be impugned only through a direct action. A direct action is a court case filed for this specific purpose.

It has to be proved that the husband could not have been the father.

The legitimacy of a child can be assailed in court if it was physically impossible for the husband to have been the father or, in the case of artificial insemination, that the written consent of either parent was improperly obtained.

The Family Code of the Philippines states these legal grounds as follows:

(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;

(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 [artificial insemination]; or

(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.  

If a direct action is not filed within the short window of time allowed by law, then the child’s legitimate status becomes fixed and can no longer be questioned.

The husband or his heirs will lose the right to exclude a child from the right to bear the husband’s surname, the right to receive support, and the right to inherit that a legitimate child enjoys.

This is so even if the husband never acknowledged the child as his, was never involved in the child’s life, or even if the couple had long since separated but were still legally married to each other when the child was born.

Generally, only the mother’s husband can legally question whether or not a child is really his. The law allows him to impugn a child’s legitimacy only under certain grounds and only within a short window of time.

Impugning legitimacy must be through a direct action. A case must be filed specifically to impugn the child’s legitimacy. The legitimacy of the child cannot be questioned as a collateral issue in another action filed for a different purpose, such as in an inheritance case to settle the father’s estate.

The action to impugn legitimacy can be brought only by the husband or his heirs within the periods fixed by law.

The mother herself cannot simply declare against the legitimacy of her child who was born of her marriage.

The Supreme Court has affirmed that only the husband – or his heirs in exceptional instances — can contest the legitimacy of a child born to his wife.

The husband’s heirs can file such a case within the period if:

(1) the husband died before the expiration of the period;

(2) the husband died after the filing of the complaint without having desisted therefrom; or

(3) the child was born after the death of the husband.

Despite the general rule that it is only the husband or his heirs who can file a case to effectively impugn legitimacy, there are extraordinary cases where the Supreme Court allowed others to do so under certain circumstances.

In 2021, the Supreme Court reversed a trial court’s dismissal of a Petition filed by a man who claimed to be a child’s biological father. The child’s mother had died and the man sought to prove that he, rather than the woman’s estranged husband, was the child’s father. Citing the best interest of the child as the primary consideration, the Supreme Court remanded the case to the lower court for reception of evidence, allowing the man to prove his paternity of the child.

It seems that the fact of the mother’s death and that the claimant father had been in actual custody of the child since the latter’s birth moved the court to make this extraordinary exception. (Santiago v. Jornacion, G.R. No. 230049. October 6, 2021)

In 2022, the Supreme Court granted a similar exception to the child herself. It ruled that, “Children who enjoy the presumption of legitimacy under Article 164 of the Family Code may impugn this presumption through any of the grounds provided under Article 166 of the same Code.” In that case, a woman claimed to be an illegitimate child born of her mother’s affair. The Supreme Court allowed her to prove that her father was not her mother’s husband. (Yap v. Yap, G.R. No. 222259. October 17, 2022)

Those cases were extraordinary not only because the Supreme Court allowed persons other than the husband to file them, but also because they had been filed many years after the brief window in which the Family Code allows a Petition to impugn legitimacy.

Nonetheless, in 2022, the Supreme Court dismissed a Petition to change entries in a birth certificate filed by siblings who claimed that one of their married mother’s supposed children was falsely registered as such. The siblings claimed that although the child was their father’s, she was actually born of an affair with another woman. In dismissing their Petition, the Supreme Court ruled that a collateral attack to impugn filiation could not be allowed. The Supreme Court further ruled that it was their father, and not the siblings, who had the right to file a case impugning the legitimacy of a child. (In Re: Petition for Cancellation and Correction of Entries in the Records of Birth, Rita K. Lee, et al, G.R. No. 180802, August 1, 2022)

In 2023, the Supreme Court again reaffirmed a strict reading of the Family Code.  In Vasay v. Vasay, G.R. No. 246078, January 23, 2023, it ruled that a husband’s Petition to impugn legitimacy had been filed in court months too late to meet the one year window. In Vasay, the Supreme Court ruled that even the husband himself could no longer question whether or not the child was his because the action was already barred by law.

All told, the Family Code’s strict requirements with respect to who can file and when must still be kept in mind.

A case to impugn the legitimacy of a child should be filed within one, two, or three years, depending on the circumstances. It will be barred or dismissed if filed beyond that period.

If the husband resides in the city or municipality where the birth occurred, then the case must be filed within one year from the knowledge of the birth or its recording in the civil register.

If the husband does not reside at the place of birth or where it was recorded, the window to file the case is two years if he resides in the Philippines; and three years if he lives abroad.

If the birth of the child has been concealed from or was unknown to the husband, 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.

If the husband has died, then his heirs can file the case to impugn the filiation of the child within the period in his stead:

(1) If the husband died 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)

The period within the court case to impugn is very important because the legal presumption of legitimacy becomes fixed when it lapses. A husband can no longer file a case to dispute parentage when the period has lapsed.

This means that, even if it there is strong evidence that the child is not the husband’s – because he was in another country at the time of the child’s conception or because DNA tests prove he was not the father – the law will refuse to change the legal status of the child once the period has lapsed.

The Supreme Court has upheld that the public policy behind the law is to create a ‘force-field ‘ in favor of the legitimacy of the child who was born during the existence of a marriage.

The intention of the law is to prevent the status of a child born in wedlock from being in a state of uncertainty for a long time. It also aims to force early action to settle any doubt as to the paternity of such child, so that the evidence material to the matter, which must necessarily be facts occurring during the period of the conception of the child, may still be easily available.

A case should be filed with a Family Court for the specific purpose of impugning or assailing the legitimacy of the child.

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 28, 2019)

Even a mother’s declaration against the child’s legitimacy, her denial that the child was fathered by her husband, is insufficient in itself to prove that the child is illegitimate. Not even a mother’s conviction for the crime of adultery suffices.

Rather, the evidence has to prove beyond reasonable doubt that the husband could not have been the father. The law presumes in favor of legitimacy so that the evidence presented in the court must be enough to overcome that presumption.

The law grants every reasonable presumption in favor of legitimacy. 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.”

Under the Revised Rules of Civil Procedure, as much of the evidence as possible should be ready before the case is filed with the Court.

Witnesses should also be ready testify to what they know of the marital situation and the family circumstances.

The evidence can include travel records to show that the spouses could not have conceived the child together. They can also include DNA evidence, either voluntarily submitted or taken by order of the court upon prima facie showing that there is reason to doubt the child’s paternity.

A husband can file a court case to disclaim paternity even if he is not based in the Philippines.

The Filipino lawyer can work with the husband remotely to prepare the Petition to impugn legitimacy. This is done through careful online talks and correspondence. The lawyer will then draft the documents for the husband to sign. Upon his approval, the husband can sign these documents and have them notarized at a Philippine consulate, or before a foreign notary then apostilled in accordance with the Hague Apostille Convention.

These notarized documents include the Petition and an affidavit sworn to by the husband. He can then send these via DHL or other courier to his lawyer in the Philippines to file with the Family Court.

The Family Court will review the documents submitted, order that notice and summons be sent to all concerned parties, and calendar the case for trial.

When it is time for the husband to testify as a witness, the husband can travel to the Philippines for the court hearing. Alternatively, Philippine courts can allow remote, video conference testimony so that the husband can testify from the Philippine consulate in the foreign country where he is based.

Contact our office at admin@lawyerphilippines.org for help on a case to prove or disprove paternity, or to impugn the legitimacy of a child.

Atty. Francesco Britanico