Illegitimate Children

1.      What is an illegitimate child?

A child who is born of parents not married to each other or born out of wedlock is an illegitimate child.

 

Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in the Family Code of the Philippines (Article 165 of the Family Code).

 

2.      Who are considered illegitimate children?

The following are considered illegitimate children:

  1. Children born to couples who are not legally married or of common-law marriages;
  2. Children born of incestuous marriages;
  3. Children born of bigamous marriages;
  4. Children born of adulterous relations between parents;
  5. Children born of marriages void for reason of public policy under Article 38 of the Family Code;
  6. Children born of couples below 18, where they are married or not;
  7. Children born of other void marriages under Article 15 unless otherwise provided.

(OCRG. Cir. No. 89-13, 17 July 1989)

 

3.      Are there different kinds of illegitimate children?

Yes. There are two kinds of illegitimate children. They are:

     1. An unrecognized illegitimate child – the child is not acknowledged by his biological father, and thus has to use the surname of his mother.

     2. A recognized illegitimate child – the child is recognized or acknowledged by his father. He is allowed to use the surname of his father. The filiation can be recognized by the father through:

      i)        The recognition of the father of the child’s paternity through the record of birth appearing in the civil register;

     ii)      When admission is made in a public document;

    iii)    When admission is made in a private handwritten document.

 

4.      What do you mean by paternity and filiation?

Paternity and filiation refers to the relationship existing between parent and child. Filiation may be by nature or adoption. Children may be legitimate or illegitimate.

 

5.      How can filiation be proven?

Filiations of legitimate (or illegitimate) children are established by any of the following:

  1. The record of birth appearing in the civil registry or a final judgment
  2. An admission of legitimate (or illegitimate) filiation in a public document or a private handwritten instrument and signed by the parent concerned.

 

6.      What if the child has no such proofs to prove his filiation to his biological father?

In the absence of any of the above evidence, such legitimate or illegitimate filiation may be proved by:

  1. Open and continuous possession of the status of a legitimate or illegitimate child;
  2. Any other means allowed by the Rules of Court and special laws. (Article 172 of the Family Code)

 

7.      Are illegitimate children entitled to support?

If the child has been recognized by his father, the child is entitled to support. But if he is an unrecognized child, the relationship between the child and the father must first be proved. Once paternity has been proven, only then the child is entitled and can ask for child support from the father.

 

8.      Define Support as used in Philippine laws.

Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation in keeping with the financial capacity of the family.

The amount to be granted in granting the amount of support are based on two factors

  1. The resources or financial capacity of the family or the giver

      2. The indispensable needs of the recipient.

 

9.      I have a 5 year old daughter and her father had never contributed a centavo since her birth. We are not married but he acknowledged her paternity in a handwritten love letter. Can I ask for support for my child, including the support that she was entitled to since she was born?

Yes. Your daughter is entitled to support starting from her birth. The father’s acknowledgement of his paternity, even though it is a private document, proved his filiation to your daughter. Thus, as her father, he is obliged to support his daughter.

 

The law provides that the obligation to give support shall be demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or extra-judicial demand. (Baltazar vs. Serfino, 14 SCRA 820)

 

10.  I have a child which I am obliged to support. What are my options in so far as giving support is concerned?

As the person obliged to give support, you shall have the option to fulfill the obligation either:

  1. by paying the allowance fixed, or
  2. by receiving and maintaining in the family dwelling the person who has a right to receive support.

The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto.

 

11.  When can an illegitimate child use the surname of his father?

Illegitimate children can use the surname of their father if:

  1. Their filiation has been expressly recognized by the father through the record of birth appearing in the civil registrar;
  2. When an admission in a public document or a private handwritten instrument is made by the father.

 

12.  Who may claim the legitimacy of the child?

The persons who can claim the legitimacy of the child are:

  1. Child himself – it is the exclusive and personal right of the child which may be brought anytime during his lifetime;
  2. Heirs of the child – it is transmitted to the heirs of the child within a period of 5 years in case

i)                    The child dies during minority;

ii)                  The child is in a state of insanity;

iii)                The child dies after action has already been instituted.

 

13.  As a father, I question the paternity of my wife’s youngest son, who I believe was sired by her lover. How can I impugn the legitimacy of the child?

The following are the grounds on impugning the legitimacy of a child:

 

  1. Physical impossibility of the husband to have sexual intercourse with his wife within the first 120 days of the 300 days immediately preceding the child’s birth due to:

i)                    Physical incapacity of the husband;

ii)                  The husband and wife were living separately; or

iii)                The serious illness of the husband which absolutely prevented sexual intercourse.

 

  1. Biological or scientific proof that the child could not have been that of the husband; and
  2. Written authorization or ratification of either parent for artificial insemination was obtained through mistake, fraud, violence, intimidation or undue influence (Article 166 of the Family Code).

 

14.  Who may impugn the legitimacy of the child?

Only the husband may impugn the legitimacy of the child. However, the heirs of the husband may impugn the legitimacy of the child under the following circumstances:

  1. The husband dies after the end of the prescription of the action;
  2. The husband dies after filing complaint; and
  3. The child was born after the husband’s death.

 

15.  Is there a prescriptive period to impugn the legitimacy of the child?

The following are the prescriptive periods to impugn the legitimacy of the child:

  1. One year – from the knowledge of birth or recording in the civil register, if the husband or heirs live in the SAME city/municipality;
  2. Two years – if both reside in the Philippines;
  3. Three years – if the child’s birth took place or was recorded in the Philippines while the husband has his residence; or vice versa

(Article 170 of the Family Code)

 

16.  Can a mother question the legitimacy of her own child?

No. A mother cannot question the legitimacy of her own child. An assertion by the mother against the legitimacy of her child cannot affect the legitimacy of the child born or conceived within a valid marriage. A mother has no right to disavow a child because maternity is never uncertain. (Concepcion v. CA, G.R. No. 123450, 31 August 2005)

 

17.  When can the child bring the action for recognition of his status?

The action for recognition may be brought during the lifetime of the child when the filiation of the illegitimate child is established by:

  1. A record of birth in the civil register;
  2. A final judgment
  3. An admission of filiation in a public document
  4. A private handwritten instrument signed by the parent concerned.

 

The action for recognition would be brought during the lifetime of the alleged parent if the action is based on:

  1. The open and continuous possession of the status of an illegitimate child
  2. Any other means allowed by the rules or special laws.

 

18.  I am an unrecognized illegitimate child. My biological father abandoned my mother upon learning of her pregnancy. Is there any way I can get him to recognize me so we can be entitled to child support?

When a man refuses to recognize a child as his, there is no other recourse but to file a petition compulsory recognition of an illegitimate child in the courts and only when filiation is proved, only then the courts can force a man to recognize his child. The Petition must be filed during the lifetime of the alleged parent.

 

If the parent and son relationship is in issue, the relationship should be established first before support can be demanded. The civil status of sonship being denied and this civil status, from which the right to support is derived, being in issue, it is apparent that no effect can be given to such a claim until an authoritative declaration has been made as to the existence of the cause. (Francisco vs. Zandueta, 61 Phil. 752)

 

There must be a declaration of the status of the child from which the right to support is derived and before support can be ordered. Such a declaration may be provisional, that is, by affidavits. (Mangulabnan vs. IAC, 185 SCRA 760)

 

When there is no proof of filiation, the man does not have to recognize the child and furthermore, support may not be granted since there is no basis that the man is the father.

 

19.  What are examples of these moral or legal obstacles?

The following are examples of moral or legal obstacles:

  1. When the recipient is an illegitimate child and the person obliged to giver support is legally married to a woman not the mother of the child. (Pascual vs. Martinez, C.A. 37 O.G. 2418)
  2. When the father has been shown to have previously maltreated the child severely. (Pascual vs. Martinez, C.A. 37 O.G. 2418)
  3. When the wife is maltreated for refusing to perform unchaste acts with the husband. (Goitia vs. Campos Rueda, 35 Phil. 576)
  4. When the father has been criminally guilty of seduction (U.S. vs. Alvir, 9 Phil. 576)
  5. When the wife cannot live with the husband and her mother-in-law because of constant quarrels arising from in-law relationship. (del Rosario vs. Del Rosario, C.A. 46 O.G. No. 12, p. 6122)

 

20.  What is legitimation?

Legitimation is a remedy by means of which those who in fact were not born in wedlock and should, therefore, be considered illegitimate, are, by fiction, considered legitimate, it being supposed that they were born when their parents were already validly married. It shall take place only by the subsequent valid marriage between the biological parents. (P. 251, Handbook on Family Code of the Philippines, Alicia V, Sempio-Diy).

 

21.  Who can be legitimated?

Only children conceived and born outside of wedlock of parents who at the time of the conception of the former, were not disqualified by any impediments to marry each other, may be legitimated (Article 177 of the Family Code of the Philippines).

 

22.  What is the process of legitimation?

Legitimation shall take place by a subsequent valid marriage between parents. The annulment of a voidable marriage shall not affect the legitimation (Article 178 of the Family Code of the Philippines).

 

23.  What are the requisites of legitimation?

The requisites of legitimation are:

  1. The child is illegitimate.
  2. The parents at the time of the child’s conception are not disqualified by any impediment from marrying each other or were so disqualified only because either or both of them were below eighteen (18) years of age.
  3. There is a valid marriage subsequent to the child’s marriage.

 

24.  What is the status of children conceived by artificial insemination?

The status of the child is legitimate, if both the spouses authorized or ratified such procedure in a written instrument, executed and signed, before the birth of the child and recorded. (Article 164 of the Family Code)

 

25.  What if one of the parent of a child born of artificial insemination, declare that their consent was induced by fraud?

The status of the said child would be illegitimate as one of the conditions were not met.

 

26.  What is the status of a child who was born after 300 days of the termination of the first marriage of his mother and contracted a second marriage?

The child wound belong to the father of the first marriage, if the child was born before the lapse of 180 days after the celebration of the second marriage, provided that it was born within 300 days after termination of the first marriage.

 

However, the child would belong to the father of the second marriage, if the child was born after 180 days following celebration of the second marriage, whether born within 300 days after termination of the first marriage, or afterwards. (Article 168 of the Family Code)

 

27.  I have a 3 year old son with a married man. He wants custody of the child. Would the courts grant him custody?

No, an illegitimate child shall be under the sole custody of the mother. Thus, regardless of the child being wanted by the father, it is the mother who has the parental authority of the child and has sole custody over him. Only when it can be proved that the mother is unfit to have custody of the child, the custody will then be awarded to the father.

 

Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. (Article 176 of the Family Code of the Philippines)

 

Parental authority is the natural right and duty of parents over the person and property of their minor children which include the caring and rearing of them for civic consciousness and efficiency and development of their moral, mental and physical character and well-being (Article 209 of the Family Code of the Philippines).

 

28.  What if the child was recognized by the father and contains his surname in the birth certificate?

The child is still considered illegitimate as he was conceived and borne out of wedlock. Thus, being illegitimate, he is placed under the custody of his mother to the exclusion of even the child’s biological father.

 

“Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. However, illegitimate children may use the surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father.” (Article 176 of the Family Code of the Philippines)

 

29.  I have a 7 year old son. His biological father just died leaving his wife and 2 daughters. Will my child have a share in the estate?

Yes, your son is entitled to half the legitime of the legitimate child. Your son will get half of what his sisters would be getting. (Article 176 of the Family Code)