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H. Paternity and Filiation

1. Legitimate children

a. CONCEPT

The filiation of children may be by nature or by adoption. Natural filiation may be legitimate or illegitimate. (Article 163, Family Code)

Children conceived or born during the marriage of the parents are legitimate.(Article 164, Ibid.)

1) Conceived or born during marriage

Children conceived or born during the marriage of the parents are legitimate. (Ibid.)

2) Artificial insemination

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. (Paragraph 2, Article 164, Ibid.)

b. RIGHTS OF LEGITIMATE CHILDREN

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. (Article 174, Ibid.)

2. Proof of filiation

a. HOW TO PROVE FILIATION

1) Legitimate children

a) Primary proof

The filiation of legitimate children is established by any of the following:

1) The record of birth appearing in the civil register or a final judgment; or

2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. (Article 172, Ibid.)

b) Secondary proof

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child; or

(2) Any other means allowed by the Rules of Court and special laws. (Paragraph 2, Article 172, Ibid.)

2) Illegitimate children

Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children.(Article 175, Ibid.)

b. Action to claim legitimacy

1) Who may file

The action to claim legitimacy may be brought by the child during his or her lifetime. (Article 173, Ibid.)

Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. (Article 175, Ibid.)

2) In case of death

The action to claim legitimacy shall be transmitted to the heirs should the child die during minority or in a state of insanity. (Article 163, Ibid.)

3) The 5-year prescription for heirs

a) Legitimate children

The heirs shall have a period of five years within which to institute the action. (Ibid.)

b) Illegitimate children

GENERAL RULE: The action must be brought within the same period specified in Article 173. (Paragraph 2, Article 175, Ibid.)

EXCEPTION:…except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent. (Paragraph 2, Article 175, Ibid.)

The problem of the private respondent, however, is that, since he seeks to prove his filiation under the second paragraph of Article 172 of the Family Code, his action is now barred because of his alleged father’s death in 1975. (Dorotea v. CA, G.R. No. 76873, 26 October 1989)

It is clear that the private respondent can no longer be allowed at this time to introduce evidence of his open and continuous possession of the status of an illegitimate child or prove his alleged filiation through any of the means allowed by the Rules of Court or special laws. The simple reason is that Apolinario Uyguangco is already dead and can no longer be heard on the claim of his alleged son’s illegitimate filiation. (Ibid.)

3. Illegitimate children

a. CONCEPT

Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this Code. (Article 165, Ibid.)

b. SURNAME

1) Mother’s surname, by default

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, Family Code, as amended by R.A. 9255)

2) When the father

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. (Ibid.)

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. (Ibid.)

4. Action to impugn legitimacy

a. GROUNDS TO IMPUGN LEGITIMACY

1) Physical impossibility to have sexual intercourse

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; (Article 166[1],Family Code)

2) Biological or other scientific reasons

Legitimacy of a child may be impugned only on the following grounds: …

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; (Article 166[2], Ibid.)

3) Defective consent in artificial insemination

Legitimacy of a child may be impugned only on the following grounds: …

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. (Article 166[3], Ibid.)

b. WHERE MOTHER HERSELF DECLARED AGAINST LEGITIMACY

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

c. 300-DAY RULE FOR SUBSEQUENT MARRIAGE AFTER TERMINATION OF FORMER MARRIAGE

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. (Article 168, Ibid.)

1) Former marriage

a) Born before 180 days after solemnization of subsequent marriage, provided born within 300 days after termination former marriage

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. (Article 168[1], Ibid.)

2) Subsequent marriage

a) Born after 180 days after solemnization of subsequent marriage, even if born within 300 days after termination of former marriage

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. (Article 168[2], Ibid.)

d. BURDEN ON PROOF ON WHO ALLEGES

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.(Article 169, Ibid.)

e. PRESCRIPTION

1) The 1-year prescription

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. (Article 170, Ibid.)

2)The 2-year prescription

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. (Paragraph 2, Article 170, Ibid.)

f. HEIRS OF HUSBAND, WHEN THEY CAN IMPUGN FILIATION

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 died 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. (Article 171, Ibid.)

5. Legitimated children

a. CONCEPT

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 impediment to marry each other may be legitimated. (Article 177, Ibid.)

b. HOW MADE

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

c. RIGHTS OF LEGITIMATED CHILDREN

Legitimated children shall enjoy the same rights as legitimate children. (Article 179, Ibid.)

d. RETROACTIVE EFFECT

1) To the time of child’s birth

The effects of legitimation shall retroact to the time of the child’s birth. (Article 180, Ibid.)

2) Benefits descendants

The legitimation of children who died before the celebration of the marriage shall benefit their descendants. (Article 181, Ibid.)

e. WHO MAY IMPUGN

1) Those whose rights are prejudiced

Legitimation may be impugned only by those who are prejudiced in their rights.. (Article 182, Ibid.)

2) The 5-year prescription

Legitimation may be impugned within five years from the time their cause of action accrues. (Ibid.)

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