iii. Action to Impugn Legitimacy

Rules in Filing an Action (Art. 173 in relation to 175):

General rule: Only the child can bring an action to claim legitimacy/illegitimacy:

General rule: It must be filed during his or her lifetime

Exception: For illegitimate children, when the action is based on par. 2 of Art. 172, the action may be brought ONLY during the lifetime of the alleged parent (Ara v. Pizzaro, G.R. No. 1872773; J. Leonen).

Exception: The right may be transmitted to the heirs of the child in the following cases:

• Death during minority;
• Insanity; or
• When the action has already been instituted by the child

NOTE: Under 1 & 2, the heirs shall have a period of 5 years within which to institute the action.

Republic Act No. 9255

This act provides that illegitimate children may optionally use the father’s surname provided that:

• Filiation has been recognized by the father through the record of birth appearing in the civil register.
• Admission in public document OR private handwritten instrument is made by the father

NOTE: Provided that the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime.

Public instrument subscribed and made under oath by the putative father indicating the illegitimate child as his is sufficient to establish illegitimate filiation

Q: Why is an illegitimate child of a woman, who gets married, allowed to bear the surname of her subsequent spouse, while a legitimate child may not?

A: To allow the child to adopt the surname of his mother’s second husband, who is not his father, could result in confusion in his paternity. It could also create the suspicion that the child, who was born during the covertures of his mother with her first husband, was in fact sired by the second husband, thus bringing his legitimate status into discredit. (Republic v. Vicencio, G.R. No. 88202. December 14, 1998)

Action to Impugn Legitimacy – Family Code, arts. 166 and 170-171

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;

(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; 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. (255a)

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. (263a)

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)

Who may Impugn the Legitimacy of a Child

General Rule: Only the husband can impugn the legitimacy of a child.

Exceptions: The heirs of the husband may impugn he child filiation in the following case: (Art. 171)

• If the husband dies before the expiration of period for filing the action
• If the husband dies after filing without desisting
• If the child was born after the death of the husband

Periods for Filing of Action to Impugn Legitimacy

• If the husband (or his heirs, in proper cases) resides in the same city or municipality where the birth took place or was recorded: within 1 year
• If the husband (or his heirs) does not reside in the city or municipality where the child birth took place or was recorded but his residence is in the Philippines: within 2 years.
• If the husband resides abroad (or, in proper cases, all his heirs reside abroad): within 3 years. (Art. 170)

NOTE: the period shall be counted from the knowledge of he child birth OR from the time of recording in the civil register. However, if he child birth a 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 act of registration of said birth, whichever is earlier.

Requisites of legitimation

• The child must have been conceived and born outside wedlock.
• At conception, the parents must have had no impediment to marrying each other, except that either or both were below 18 years of age.
• The parents must subsequently enter into a valid marriage.

Rights of legitimated children — Family Code, Art. 179. Legitimated children have the same rights as legitimate children.

Who may impugn legitimation — Family Code, Art. 182. Only a person prejudiced in their rights may impugn legitimation, within five years from the accrual of the cause of action.

Example. Roderick and Faye lived together when he was 18 and she was 16. After Faye turned 18, her parents arranged her marriage to Brad. Faye continued seeing Roderick during that marriage and gave birth to Laica. Faye later killed Brad and married Roderick without a marriage license, claiming more than five years of continuous cohabitation. Can their marriage legitimate Laica? No. Laica was born during Faye’s marriage to Brad and is presumed legitimate as Brad’s child. Moreover, Faye was married to Brad when Laica was conceived and born, so Faye and Roderick had an impediment to marrying each other. Only a child conceived and born outside wedlock whose parents had no disqualifying impediment at conception may be legitimated. (Family Code, Art. 177.)

Adopted children. Adoption is a juridical act and a proceeding in rem that generally gives a child, whether related to the adopter or not, the rights and status of a legitimate child. It establishes a relationship comparable to legitimate paternity and filiation. (In the Matter of the Adoption of Stephanie Nathy Astorga Garcia, G.R. No. 148311, March 31, 2005.)

Adoption generally creates a relationship only between the adopter and the adopted child, not between the child and the adopter’s other relatives, unless the law expressly provides otherwise. Adoption also creates certain impediments to marriage and does not make the adopted child’s children descendants of the adopter.

Preference in adoption:

• Adoption by the extended family
• Domestic adoption
• Inter-country adoption

Domestic Administrative Adoption and Alternative Child Care Act: R.A. No. 11642.