Nicolas and de Vega Law Article: If the Wife Gives Birth to a Child of Another Man, what is the Status of the Child?

The child is considered as legitimate unless the husband impugns the legitimacy of the child within the period prescribed by law.

In the opposite side of the fairy tale world of happily ever after marriages, there is a grim reality of marriages that simply do not work. It becomes worse when the wife engages in an affair and gives birth to the child of her lover. In such case, what is the status of the child and who shall be considered as the child’s father?

Art. 164 of the Philippine Family Code categorically provides that children conceived or born during the marriage of the parents are legitimate.  Thus, such love child shall be classified as the legitimate child of the husband and wife. In fact, Art. 167 of the same law enunciates that the child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.

It may sound bizarre that despite the fact that the child was a result of an illicit relation, he or she is nonetheless considered as a legitimate child of the spouse.  However, the Family Code tilts towards the legitimacy of the child.  As amply explained by the Philippine Supreme Court in the case of Cabatania vs. Court of Appeals (G.R. No. 124814, 21 October 2004), 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. It is grounded on the policy to protect the innocent offspring from the odium of illegitimacy.

Only the husband, not the lover, can impugn the legitimacy of the child.

Another unique situation in the Philippines is the fact that it is only the husband (or his heirs in exceptional circumstances) that can impugn the legitimacy of the child.  In fact, the lover (and actual father of the child) of his wife has no legal personality to lodge a court case and claim the child as his own. In Geronimo vs. Santos (G.R. No. 197099, 28 September 2015), the Supreme Court explained that “Only the husband can contest the legitimacy of a child born to his wife. He is the one directly confronted with the scandal and ridicule which the infidelity of his wife produces; and he should 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 to an insult to his memory.” Thus, as a respect to the dignity of the husband, he is the only one vested with personality to disclaim the child”.

In order to impugn the filiation of the child, the husband must prove impossibility of sexual intercourse with the wife.

Should the husband wish to impugn the legitimacy of the child, he needs to prove the grounds enunciated in Art. 166 of the Family Code. As summarized by the Supreme Court in Social Security System vs. Aguas (G.R. No. 165546, 27 February 2006):

” There is perhaps no presumption of the law more firmly established and founded on sounder morality and more convincing reason than the presumption that children born in wedlock are legitimate. This presumption indeed becomes conclusive in the absence of proof that there is physical impossibility of access between the spouses during the first 120 days of the 300 days which immediately precedes the birth of the child due to (a) the physical incapacity of the husband to have sexual intercourse with his wife; (b) the fact that the husband and wife are living separately in such way that sexual intercourse is not possible; or (c) serious illness of the husband, which absolutely prevents sexual intercourse. Quite remarkably, upon the expiration of the periods set forth in Article 170, and in proper cases Article 171, of the Family Code (which took effect on 03 August 1988), the action to impugn the legitimacy of the child would no longer be legally feasible and the status conferred by the presumption becomes fixed and unassailable.”

As can be gleaned above, the husband must prove that there is physical impossibility for sexual coitus between him and his wife within the first 120 days of the 300 days immediately preceding the birth of the child. To illustrate, the Supreme Court in Concepcion vs. Court of Appeals (G.R. No. 123450, 31 August 2005) elucidated that “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.

The husband can only impugn the legitimacy of the child within the periods provided by law. Otherwise, he is barred from doing so.

Aside from the fact that impugning the legitimacy of the child is the husband’s personal right, the Family Code is quite strict and mandates reglementary periods in invoking such right. Art. 170 of the Family Code provides:

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.

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; and three years if abroad. 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.

The 1, 2- and 3-year periods stated above should be strictly followed. Upon the lapse of said periods, the legitimacy of the child shall hold strong.  As explained by the Supreme Court in In Geronimo vs. Santos (G.R. No. 197099, 28 September 2015):

Upon the expiration of the periods provided in Article 170, the action to impugn the legitimacy of a child can no longer be brought. The status conferred by the presumption, therefore, becomes fixed, and can no longer be questioned.1âwphi1 The obvious 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.

Under exceptional circumstances, the heirs of the husband can file the case.

Under exceptional circumstances, the heirs of the husband may impugn the filiation of the child due to the following grounds stated in Art. 171 of the Family Code:

(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. 

In view of the foregoing, the lover of the wife would have a difficult time to claim paternity and parental authority over the child. He must wait for the husband to disclaim the legitimacy of the lovechild.

That is how children born out of adulterous relations are viewed under Philippine laws.

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