b. Marital (Legitimate) and Nonmarital (Illegitimate) Children

Classifications of filiation

• Natural
• Legitimate – conceived OR born within a valid marriage.
• Illegitimate – conceived AND born outside a valid marriage.
• Judicial Act
• Legitimated – conceived and born outside of wedlock of parents without impediment to marry at the time of conception or were so disqualified only because either or both of them were below eighteen (18) years of age. (FC, Art. 177)
• Adopted – a filiation created by law which vests between two persons a relationship similar to that which results from legitimate paternity and filiation.

Legitimate and Illegitimate Children – Family Code, arts. 164-165 and 167-169

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)

Art. 167. The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. (256a)

Art. 168. If the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary:

(1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within three hundred days after the termination of the former marriage;

(2) A child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage. (259a)

Art. 169. The legitimacy or illegitimacy of a child born after three hundred days following the termination of the marriage shall be proved by whoever alleges such legitimacy or illegitimacy. (261a)

A minor follows the domicile of his parents

• Domicile of origin can only be lost when a change of domicile occurs
• If the child is illegitimate, the domicile of the mother is followed

LEGITIMATE CHILDREN

Those conceived or born during a valid marriage. (Art. 164)

Rules to remember

• Family relations exists even if they are not living together.
• Family relations include those between parents and children, whether the children are legitimate or illegitimate. (Family Code, Art. 150)
• Adopted children are included. (Minutes of Committee Meeting of August 24, 1985)

This also includes children who are:

• Conceived through artificial insemination of the wife, provided both spouses authorized or ratified it in a written instrument signed before the child's birth and recorded with the birth certificate (Art. 164, Family Code)
• Conceived or born of a voidable marriage before decree of annulment;
• Conceived or born before judgment of absolute nullity under Art. 36 (psychological incapacity) becomes final and executory;
• Conceived or born of a subsequent marriage under Art. 53 (failure to record the judgment, partition and distribution of properties, and delivery of children presumptive legitime);
• Legally adopted; and
• Legitimated, conceived and born outside of wedlock of parents without impediment at the time of conception and who subsequently married

A child born inside a valid marriage is legitimate. Hence a child born inside a bigamous marriage, which is void, is considered a child under the first marriage, which has not been nullified or annulled (Concepcion v. Court of Appeals, G.R. No. 123450, October 2, 2006) unless the husband timely impugns the legitimacy of the child.

An agreement by parties as to the status of a child is void. Only the law determines legitimacy or illegitimacy. Thus, the child, in the eyes of the law, is legitimate under the first marriage notwithstanding the admission in pleadings by the wife and her second husband that the child is their legitimate son. Similarly, any declaration of the mother that her child is illegitimate has no probative value. (Concepcion v. Court of Appeals, G.R. No. 123450, October 2, 2006)

ILLEGITIMATE CHILDREN

Those conceived AND born outside a valid marriage. (Art. 165)

These include those who are:

• Born of marriages which are void ab initio such as bigamous and incestuous marriages and void marriages by reason of public policy
• Conceived and born of voidable marriages after the decree of annulment
• Conceived and born out of wedlock

Rights of Legitimate Children – Family Code, art. 174

Art. 174. Legitimate children shall have the right:

(1) To bear the surnames of the father and the mother, in conformity with the provisions of the Civil Code on Surnames;

(2) To receive support from their parents, their ascendants, and in proper cases, their brothers and sisters, in conformity with the provisions of this Code on Support; and

(3) To be entitled to the legitimate and other successional rights granted to them by the Civil Code. (264a)

Rights of Illegitimate Children – Family Code, art. 176 as amended by R.A. No. 9255

Article 176. 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. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. (As amended by R.A. 9255, Dated Feb. 24, 2004)

Iron Curtain Rule / Barrier Principle / Principle of Absolute Separation

An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. (Art. 992)

Former Diaz rule: The right of representation is not available to illegitimate descendants of legitimate children in the inheritance of a legitimate grandparent. (Diaz v. Intermediate Appellate Court, G.R. No. L66574, June 17, 1987) Under the current Aquino rule, Article 992 does not bar an illegitimate child from inheriting from a direct ascendant by right of representation. (Aquino v. Aquino, G.R. No. 208912, Dec. 7, 2021)

NOTE: The above ruling in Diaz no longer applies considering Aquino v. Aquino, (G.R. Nos. 208912 and 209018, Dec. 7, 2021), where the court ruled that grandparents and direct ascendants fall outside the scope of “relatives” under Art. 992.1

Effects of Judicial Declaration of Nullity of Marriage

• On the status of children

GR: Children conceived and born outside of a valid marriage or inside a void marriage are illegitimate.

XPNs:

• Legitimate if the marriage is void on the ground of psychological incapacity of either or both parties, provided the children were conceived or born before the judgment of absolute nullity becomes final and executory. (Art. 54, FC)
• Children conceived or born of a subsequent marriage that is void under Art. 53 for non-compliance with the requirements set forth under Art. 52 of the FC are legitimate. (Art. 54, FC)
• Legitimate if the children were conceived or born before the judgment of annulment or absolute nullity of the marriage under Art. 36 has become final and executory. (Art. 54, first sentence), FC)
• Legitimate if the children were conceived or born of the subsequent marriage under Art. 53. (Art. 54, FC)
• Property Relations

GR: Either Art. 147 or 148 (Co-ownership) of the FC will apply.

Art. 147. applies if the parties are capacitated to marry each other but their marriage is void. Property acquired during their cohabitation through their work or industry is co-owned, subject to the presumptions of joint contribution and equal shares under Art. 147 of the FC; property acquired through one party’s exclusive funds is not automatically co-owned.

Art. 148. applies if the parties suffer legal impediment (i.e., due to age or relationship pursuant to Arts. 37 and 38 of the FC). Under Article 148, only property acquired through the parties' actual joint contribution of money, property, or industry is co-owned, in proportion to their respective contributions.

XPN: If the subsequent marriage is void for non-compliance with Art. 40 of the FC, the property relations of the void subsequent marriage are governed either by absolute community or the conjugal partnership of gains, as the case may be, unless the parties agree to a complete separation of property in a marriage settlement before marriage. (Diño vs. Diño, G.R. 178044, 29 Jan. 2011)

Q: Is a decree of nullity of the first marriage required before a subsequent marriage can be entered into validly?

A: Under the Art. 40 of the FC, the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.

XPNs:

• If parties merely signed the marriage contract, i.e., without the presence of the solemnizing officer; NOTE: The mere private act of signing a marriage contract bears no semblance to a valid marriage and, thus, needs no judicial declaration of nullity of marriage. (Morigo vs. People, G.R. 145226, 06 Feb. 2004)
• If one of the parties was a victim of identity theft. Here, the victim discovered that she was already married to a Korean national upon receipt of her NSO’s CENOMAR. The SC affirmed the trial court’s order for correction of entry under Rule 108 of ROC without need of declaration of nullity of the marriage since there is no marriage to be declared void in the first place; (Republic vs Olaybar, G.R. 189538, 10 Feb. 2014)
• Proxy marriages conducted in the Philippines;
• Same sex marriage celebrated abroad involving Filipino citizens by reason of public policy. Same sex marriage contracted by a Filipino citizen is not recognized as a valid marriage in the Philippines pursuant Art. 1 of FC and Art. 15 of the NCC.

Q: Will the nullity of the subsequent marriage constitute a prejudicial question in the crime of bigamy?

A: YES. “The validity of the second marriage is a prejudicial question to the criminal prosecution for bigamy. To our mind, it is time to abandon the earlier precedents and adopt a more liberal view that a void ab initio marriage can be used as a defense in bigamy even without a separate judicial declaration of absolute nullity. The accused may present testimonial or documentary evidence such as the judicial declaration of absolute.” (Pulido v. People G.R. No. 220149, 27 July 2021 as penned by J. Hernando)

• Donations Propter Nuptias

GR: Donations propter nuptias are revocable at the instance of the donor.

Cohabitation

It means more than sexual intercourse, especially when one of the parties is already old and may no longer be interested in sex. (Ibid.)

Cohabitation is the public assumption by a man and a woman of the marital relation, and dwelling together as man and wife, thereby holding themselves out to the public as such. Secret meetings or nights clandestinely spent together, even if often repeated, do not constitute such kind of cohabitation. (Pineda 2011, citing Arcaba v. Vda. de Batocael, G.R. No. 146683, 22 Nov. 2001)