Presumption of Legitimacy

A married woman gives birth to a child whose father is not the woman’s husband, what is the status of the child? Can the child carry the surname of his biological father? What are the rights of the biological father? This is probably one of the most difficult cases to explain. For how can a child be considered the legitimate child of the mother’s legal spouse when biologically he is not? Under our family code the child shall be considered as the legitimate child of the spouses. The biological father has no rights whatsoever not even visitational rights with respect to the child. This may be a very difficult situation for the concerned but this is a safeguard instituted by the family code to protect the right of the child.

Conception vs. CA and Almonte

Gerardo Conception married Ma. Theresa Almonte and shortly after, the latter gave birth to a child- Jose Gerardo. After sometime however, Gerardo filed for the declaration of nullity of their marriage on the ground that his marriage with Ma. Theresa was bigamous. It was found out that Ma. Theresa was previously married to Mario. The trial court in its decision declared the marriage void ab initio granting Gerardo visitational rights over their son. Believing that Gerardo should not be granted visitational rights, Ma. Theresa appealed the decision. On appeal, the Court of Appeals declared that the legitimacy of the child is determined by law and not by the parents. Jose Gerardo is in the eyes of the law, the child of the spouses Ma. Theresa and Mario. In effect, the child is not related to Gerardo and cannot use his surname and the latter cannot also be granted visitational rights. Gerardo appealed the decision of the CA.

Jose Gerardo is the son of Mario

The Supreme Court affirmed the decision of the CA. Jose Gerardo is the legitimate son of Mario. The SC justified its judgment, saying: “As a guaranty in favor of the child and to protect his status of legitimacy, Article 167 of the Family Code provides: Article 167. The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.” (G.R. No. 123450. August 31, 2005). The admissions of Mario and Ma. Theresa that they did never live together as husband and wife cannot over turn the presumption under the Family Code. To counter this presumption, it must be shown that it was physically impossible for Mario and Ma. Theresa to have had any sexual union such as when one of them is abroad during the child’s conception. In this case, Mario was living just four kilometers away from Ma. Theresa. In the end the SC expressed its incredulity on the situation: “It perplexes us why both Gerardo and Ma. Theresa would doggedly press for Jose Gerardos illegitimacy while claiming that they both had the child’s interests at heart. The law, reason and common sense dictate that a legitimate status is more favorable to the child. In the eyes of the law, the legitimate child enjoys a preferred and superior status. He is entitled to bear the surnames of his father and mother, full support and full inheritance. On the other hand, an illegitimate child is bound to use the surname and be under the parental authority only of his mother. He can claim support only from a more limited group and his legitime is only half of that of his legitimate counterpart. Moreover (without unwittingly exacerbating the discrimination against him), in the eyes of society, a bastard is usually regarded as bearing a stigma or mark of dishonor. Needless to state, the legitimacy presumptively vested by law upon Jose Gerardo favors his interest.”


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