PHILIPPINE LAW ON PATERNITY AND FILIATION:

THE SPANISH LEGACY

Prof. Danilo L. Concepcion

Dean of the  College of Law
University of the Philippines

Filiation under Philippine Law

            The Philippine Civil Law has retained the old classification of children under the Old
Spanish Civil Code, namely: natural and adoptive. It has also retained the two types of natural
children, namely: legitimate and illegitimate. As in the Old Civil Code, the basis of the
classification of children is the existence or absence of marriage between the mother and father
of the child. When a child is conceived AND born outside a valid marriage, the child is
illegitimate, while a child conceived OR born during a valid marriage is legitimate.

Gradation of Status and Rights of Children

            There is a distinction between the rights of a father over his legitimate  and illegitimate
children. Under the Old Civil Code, an illegitimate father had neither rights nor obligations over
his illegitimate children. In the same way, illegitimate children had no rights enforceable against
the illegitimate father and his family. The illegitimate children, commonly called bastards, were
total strangers to the family of the illegitimate father.

            The New Civil Code enacted in 1950 introduced some reforms. On the one hand, the new
code gave the illegitimate children the right of support from the illegitimate father and the right
to inherit from him. The father, on the other hand, was given paternal authority over the bastard
child jointly with the mother, provided he recognized the child in accordance with the formalities
prescribed in the law. The illegitimate father was also given inheritance rights from the
illegitimate child.

            In a much recent law, the Family Code of 1988, the father of the illegitimate child was
deprived of parental authority over the child. The reason was more practical than legal. Joint
parental authority of two people who do not live together and who are usually at odds with each
other, is simply unmanageable. Hence, parental authority was given solely to the mother.

            Under the Old Code, an illegitimate child did not have any successional rights in the
estate of his illegitimate father. This was true even though the father had publicly recognized him
as his bastard. The New Civil Code of 1950 tempered this rule and allowed the illegitimate child
an inheritance. However, the illegitimate child was not placed on equal footing with a legitimate
child. For instance, the inheritance right of an illegitimate child is just half that of a legitimate
child; a legitimate child excludes the grandparents from the inheritance of the legitimate parent
while an illegitimate child does not; and an illegitimate child is barred from inheriting from the
legitimate relatives of his illegitimate parent, and vice versa.
The Concept of Legal Parent

            The Old Spanish Civil Code classified the children on the basis of presumption. This was
understandable because at that time, paternity of a child was nothing but an act of faith on the
part of the man who had to put absolute trust on the declaration of the child’s mother. At that
time, science did not yet have the capability to establish the paternity of the child with certainty.
The Queen, in those days, had to be sequestered, quarantined, and guarded to ensure that only the
King had access to her. That way, there would be no doubt that the King was the father of her
offsprings. The Queen had to suffer, too, the duty of allowing a coterie of spectators when she
was giving birth. This was done so that her child would be immediately branded to guard against
the introduction of changelings to the throne.

            The absence of the means to establish the filiation of a child left the law makers with no
choice but to rely on presumptions. Legal presumption was the cornerstone of the paternity rules
in the Old Civil Code, and it has remained the basis of the present law in the Philippines.

            Under Philippine law, the husband is presumed to be the father of the child of his wife.
This presumption holds even though they were no longer living together when the child was
conceived and born, and even though the mother has admitted that her husband is not the father
of her child, and even though she has disclosed who the biological father of the child is. Under
our system of laws, the marriage of the husband to the biological mother of the child has made
him  the legal father of every child his wife will conceive and give birth to.

            Such presumption may be defeated only by a court declaration that the child is not of the
husband in an action timely instituted. In such action, the husband has the burden of proving that
he is not the father of the child.  The fact that it was impossible for him to be the father because
of his physical  separation from the wife is one of the evidence he may use to prove his case. He
may also seek the aid of science, such as DNA matching, to prove that he was not the father of
the child.

            Unless the husband goes to court to reject siring the child, the presumption that the child
is his legitimate child would subsist. The action to reject paternity of the child, however, is not
open to the husband all the time. He has to do it within a prescribed period of time. If no action
was instituted during the prescriptive period, the child becomes conclusively presumed as his
legitimate child. In such a case, the husband and his relatives are not allowed to deny and
question the filiation of the child and are obliged to honor his rights as a legitimate child.

            Neither may the biological father  successfully claim paternity of the child. This is true
even though DNA tests have proven beyond doubt that the child is his biological child. The law
has adopted this rule because at the time the law was adopted bastards were treated miserably by
law and society. Hence, a legitimate status, even though a mere presumption, was preferred over
a true but illegitimate filiation. The presumption of legitimacy was considered a measure of
protection of the child who was better off with a legitimate status. Moreover, the law could not
accept the proposition that a child has two natural fathers.
            This system of presumption, however, poses many practical problems. For instance, may
the child in our illustration marry another child of the biological father by another woman? In
reality, the two are half-blood siblings who are not allowed to marry under ordinary
circumstances due to close blood relation. The law, however, does not prohibit their marriage.
And yet, the child in our illustration will not be allowed to marry another child of his legal father
even though they are not at all related by blood.

            With the advances in science, I firmly believe that it is now time for the Philippines to
follow the step taken by Spain in revising its sytem of laws to keep up with the times.

Legal Parent vs. Biological Parent

            To illustrate the difference between the concepts of legal parent and biological parent, let
us take the case of a woman who was made pregnant by her boyfriend. The woman broke off
with her boyfriend when he refused to marry her. While carrying her baby, she met another man,
who despite knowing that she was pregnant by another man, married her. The child was born
after the marriage.

            What is the status of the child?

            Under Philippine law, the child is presumed to be the legitimate child of the husband who
shall exercise all the rights of a father. The husband is the legal parent of the child although the
boyfriend was the biological parent. Under those circumstances, the biological parent has no
rights with respect to the child and vice versa. The child cannot inherit from the boyfriend who
was his true father, and the boyfriend cannot inherit from his biological child.  

            It would have been different if the woman got married after she has given birth. This is
because the status of a child is fixed at the time of its birth. As a single mother, her child would
be an illegitimate child at the time of its birth. In such case the mother shall, under the law, be
the only legal parent of the child. The child would have no legal father until the biological father
has formally recognized the child as his, or has been adopted by another. The subsequent
marriage of the mother to another man will not change the status of the child which had already
been fixed at the time of its birth. The husband and the mother, however, may adopt the child to
level up its status. The adopted child is treated under the law as the legitimate child of the
adopters. If, on the other hand, the biological father married the mother after giving birth to the
child, the status of the child improves. From illegitimate, its status becomes legitimated.

            For the same reason, while the sperm donor is the biological father in case of artificial
insemination, he is not given any rights with respect to the resulting child if the woman who
received his donation is a married woman.  The husband of the woman shall be the legal parent
of the child.

            In modernizing our laws, I believe the identity of the sperm donor should be disclosed, to
allow the resulting child of the donation, or the child’s prospective spouse, to know if they are
related by blood if such is important to them.
            As regards a mother, our laws recognize the birth mother as the legal parent of the child
regardless of the source of the egg or the embryo. If the mother is unmarried, the child will be
illegitimate, but if she is married, the child is her and her husband’s legitimate child.

Filiation of Illegitimate Children

            As in the Old Civil Code, there is no presumption in the present law who the father of an
illegitimate child is. To have a legal father, the illegitimate child has to be formally recognized
by someone. Recognition may be voluntary or by court declaration. Voluntary recognition has to
be in a public instrument or in a handwritten document signed by the recognizing father. A
unilateral declaration by the mother is not enough. Hence, when the father has not signed the
report of live birth, the child’s record will indicate the father as unknown. Without such
recognition, the illegitimate child acquires no rights enforceable against the illegitimate father.

            In case the illegitimate father has denied paternity, the child may bring an action to seek
judicial declaration of his filiation. He may present all admissible evidence to prove his claim.
He may also ask the court to compel his alleged father to undergo DNA test. This action,
however, may be brought by the bastard child only during the lifetime of the putative father.
When the father dies, the child will never be able to get a judicial declaration.

            As in the Old Civil Code, an illegitimate child may not be recognized by more than one
father. Having two natural fathers was inconceivable under the Old Code. One of the two
recognition has to be declared ineffective.

            Under the Old Code, if recognition was at the initiative of the person claiming to be the
illegitimate father, the consent of the illegitimate child was necessary for his recognition to take
place. This requirement was suppressed in the Family Code. However, the Family Code allows
any such recognition to be contested at any time by any interested party.

Filiation of Children Born After Termination of Marriage

            When a widow, who remarries within 300 days after the death of her first husband, gives
birth to a child after the celebration of the second marriage, who is the father of the child?  

            Under our present law, if the child was conceived before the death of the first husband,
the child is legitimate of the first husband even though born after the celebration of the second
marriage. If the child was conceived after the death of the husband, the child is considered
legitimate of the second husband. The problem is how do we know when the child was
conceived?

            Again, our paternity laws being founded on antiquity, relies on presumption in
determining the paternity of such child. It is believed that a child is conceived during the first
120 days of the 300 days immediately preceding the birth of the child. Hence, a child born before
180 days after the celebration of the second marriage is presumed to be the child of the first
husband provided it was born before 300 days after the death of the first husband. Otherwise, the
child is presumed the child of the second husband. The same rule applies if the first marriage was
dissolved not by death of the first husband but by the annulment or declaration of nullity of the
first marriage. The presumption, however, is disputable. As discussed earlier, the child being
presumed legitimate, such presumption may be defeated only by a court declaration.

Filiation of Adopted Children

            Adopted children are considered legitimate children of their adoptive parents. The
adoptive parents, therefore, are treated as the legal parents of the adopted child. But if the
adopted child was a legitimate child of a married couple before his adoption, what becomes of
the child’s relationship with its legal parents after the adoption? Do the legal parents cease to be
legal parents?

            To bring home the point, an illustration may be helpful. Let us take the case discussed
earlier. The case of the woman who married another man while pregnant by her boyfriend, and
who gave birth after the marriage. In that case, the husband of the mother was the legal parent
while the boyfriend was the biological father. If the child is to be adopted later on by another
couple, it is the consent of the legal parents that is required to be given and not that of the
biological father. By adoption, the adopting parents will have all the rights of legitimate parents,
and the parental authority of the legal parents shall be terminated.

            The adopted child shall be considered a legitimate child of the adopting parents. The
adopting parents, therefore, become legal parents of the adopted child. And since the adopted
child is considered a legitimate child of the adopters, he is prohibited from marrying the
legitimate or another adopted child of the adopting parents. The prohibition is not because the
adopting parents have become his legal parents, but due to public policy. It is viewed as not
morally correct to allow two people who lived together and were treated and raised as siblings to
marry each other. Take note, however, that the adopted child is allowed by law to marry an
illegitimate child of the adopting parent because the illegitimate child is not expected to live with
the illegitimate father.

            In adoption, the legal parents do not cease to be legal parents. They simply lose their
parental authority. The adopted child, therefore, has two sets of legal parents except that the first
set lost their parental authority over him. Hence, the adopted child is a legal heir of both sets of
legal parents, and  both sets of legal parents, under the Family Code, are legal heirs of the
adopted child. This was not the case under the New Civil Code, where the adopting parents were
not legal heirs of the adopted child.

            The adopted child remains a relative of the family of his legal parents. For this reason,
the adopted child cannot marry his sibling and first cousins by his legal parents.

            In our illustrative case, the biological father is still considered a stranger to the  the
adopted child. This is why the adopted child in our illustration is not prohibited from marrying
his half-blood sibling by his biological father.    

Conclusion
            We recognize the need to update Philippine law on paternity and filiation to cope with the
times.           We believe that a review of the changes and reforms introduced by Spain to its laws
is in order if only to find out if those changes are applicable or suitable to the Philippines. For
this purpose, we will need an English translation of the Spanish law and other relevant materials.
We shall also need the translation of the pertinent jurisprudence on the subject. We are sure the
Philippines will benefit from the wisdom and experience of Spain on this important aspect of
family law.
Rights of illegitimate children | Inquirer Opinion

The Civil Code and the Family Code, which both regulate filial relationships, provide that illegitimate
children “shall use the surname … of their mother.” But Revilla Sr. himself authored a law in 2004
(Republic Act 9255, otherwise known as the “Revilla Law”) that amended these two codes and allowed
illegitimate children to 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.”
Simply stated, such express (not implied) recognition may be found in the original birth certificate signed
by the father, or in a notarized document, or private written instrument executed by the father. Absent
such express acknowledgment, an illegitimate child can use only the surname of the mother.
xxx.
The amount of support “shall be in proportion to the resources or means of the giver and to the
necessities of the recipient.” It may vary proportionately from time to time according to the reduction or
increase of the financial capability of the obligor and the needs of the obligee.
It is not just the parents who are obliged to give support. “Brothers and sisters not legitimately related,
whether of the full or half blood, are likewise bound to support each other,” but support may be denied to
illegitimate siblings “if the need is due to a cause imputable to the claimant’s fault or negligence.” Under
the Family Code, the many Revilla children, whether legitimate or not, may owe support to each other.
Succession or inheritance. By succession, the property, rights and obligations (to the extent of the value
of the inheritance) of a person are transmitted to the heirs (and others called devisees or legatees) upon
his or her death, either by a will or by operation of law, or partly by will and partly by operation of law.
Decedents may dispose by means of a will only such portions of their property that are not reserved by
law for the compulsory heirs. In other words, a testator cannot, as a rule, disinherit compulsory heirs.
Once duly acknowledged, illegitimate children are entitled to inherit from their father. They are entitled to
what the law refers to as “legitime,” which is that part of the testator’s estate that cannot be freely given
away because the law reserves it for the compulsory heirs. While recognized illegitimate children are
compulsory heirs, their legitime, according to the Revilla Law, is equivalent only to one-half of the legitime
of legitimate children.
Legally “adopted” and “legitimated” children are treated better than illegitimate children because the
former enjoy the same rights as legitimate ones. Children – conceived and born 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 by the marriage of their parents after their birth. x x x.
x x x."
Illegitimate Children

1.      What is an illegitimate child?

A child who is born of parents not married to each other or born out of wedlock is an illegitimate
child.

Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided
in the Family Code of the Philippines (Article 165 of the Family Code).

2.      Who are considered illegitimate children?

The following are considered illegitimate children:

1. Children born to couples who are not legally married or of common-law marriages;
2. Children born of incestuous marriages;
3. Children born of bigamous marriages;
4. Children born of adulterous relations between parents;
5. Children born of marriages void for reason of public policy under Article 38 of the Family Code;
6. Children born of couples below 18, where they are married or not;
7. Children born of other void marriages under Article 15 unless otherwise provided.

(OCRG. Cir. No. 89-13, 17 July 1989)

3.      Are there different kinds of illegitimate children?

Yes. There are two kinds of illegitimate children. They are:

     1. An unrecognized illegitimate child – the child is not acknowledged by his biological
father, and thus has to use the surname of his mother.

     2. A recognized illegitimate child – the child is recognized or acknowledged by his father. He
is allowed to use the surname of his father. The filiation can be recognized by the father through:

      i)        The recognition of the father of the child’s paternity through the record of birth
appearing in the civil register;

     ii)      When admission is made in a public document;

    iii)    When admission is made in a private handwritten document.

 

4.      What do you mean by paternity and filiation?

Paternity and filiation refers to the relationship existing between parent and child. Filiation may
be by nature or adoption. Children may be legitimate or illegitimate.

5.      How can filiation be proven?

Filiations of legitimate (or illegitimate) children are established by any of the following:

1. The record of birth appearing in the civil registry or a final judgment

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

6.      What if the child has no such proofs to prove his filiation to his biological father?

In the absence of any of the above evidence, such legitimate or illegitimate filiation may be
proved by:

1. Open and continuous possession of the status of a legitimate or illegitimate child;

2. Any other means allowed by the Rules of Court and special laws. (Article 172 of the Family
Code)

7.      Are illegitimate children entitled to support?

If the child has been recognized by his father, the child is entitled to support. But if he is an
unrecognized child, the relationship between the child and the father must first be proved. Once
paternity has been proven, only then the child is entitled and can ask for child support from the
father.

8.      Define Support as used in Philippine laws.

Support comprises everything indispensable for sustenance, dwelling, clothing, medical

attendance, education and transportation in keeping with the financial capacity of the family.

The amount to be granted in granting the amount of support are based on two factors
 1. The resources or financial capacity of the family or the giver

      2. The indispensable needs of the recipient.

9.      I have a 5 year old daughter and her father had never contributed a centavo since her
birth. We are not married but he acknowledged her paternity in a handwritten love letter.
Can I ask for support for my child, including the support that she was entitled to since she
was born?

Yes. Your daughter is entitled to support starting from her birth. The father’s acknowledgement
of his paternity, even though it is a private document, proved his filiation to your daughter. Thus,
as her father, he is obliged to support his daughter.

The law provides that the obligation to give support shall be demandable from the time the
person who has a right to receive the same needs it for maintenance, but it shall not be paid
except from the date of judicial or extra-judicial demand. (Baltazar vs. Serfino, 14 SCRA 820)

10.  I have a child which I am obliged to support. What are my options in so far as giving
support is concerned?

As the person obliged to give support, you shall have the option to fulfill the obligation either:

1. by paying the allowance fixed, or

2. by receiving and maintaining in the family dwelling the person who has a right to receive
support.

The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto.

11.  When can an illegitimate child use the surname of his father?

Illegitimate children can use the surname of their father if:

1. Their filiation has been expressly recognized by the father through the record of birth appearing
in the civil registrar;
2. When an admission in a public document or a private handwritten instrument is made by the
father.

 
12.  Who may claim the legitimacy of the child?

The persons who can claim the legitimacy of the child are:

1. Child himself – it is the exclusive and personal right of the child which may be brought anytime
during his lifetime;
2. Heirs of the child – it is transmitted to the heirs of the child within a period of 5 years in case

i)                    The child dies during minority;

ii)                  The child is in a state of insanity;

iii)                The child dies after action has already been instituted.

13.  As a father, I question the paternity of my wife’s youngest son, who I believe was sired
by her lover. How can I impugn the legitimacy of the child?

The following are the grounds on impugning the legitimacy of a child:

1. Physical impossibility of the husband to have sexual intercourse with his wife within the first 120
days of the 300 days immediately preceding the child’s birth due to:

i)                    Physical incapacity of the husband;

ii)                  The husband and wife were living separately; or

iii)                The serious illness of the husband which absolutely prevented sexual intercourse.

1. Biological or scientific proof that the child could not have been that of the husband; and
2. Written authorization or ratification of either parent for artificial insemination was obtained
through mistake, fraud, violence, intimidation or undue influence (Article 166 of the Family
Code).

14.  Who may impugn the legitimacy of the child?

Only the husband may impugn the legitimacy of the child. However, the heirs of the husband
may impugn the legitimacy of the child under the following circumstances:
 1. The husband dies after the end of the prescription of the action;
2. The husband dies after filing complaint; and
3. The child was born after the husband’s death.

15.  Is there a prescriptive period to impugn the legitimacy of the child?

The following are the prescriptive periods to impugn the legitimacy of the child:

1. One year – from the knowledge of birth or recording in the civil register, if the husband or heirs
live in the SAME city/municipality;
2. Two years – if both reside in the Philippines;
3. Three years – if the child’s birth took place or was recorded in the Philippines while the husband
has his residence; or vice versa

(Article 170 of the Family Code)

16.  Can a mother question the legitimacy of her own child?

No. A mother cannot question the legitimacy of her own child. An assertion by the mother
against the legitimacy of her child cannot affect the legitimacy of the child born or conceived
within a valid marriage. A mother has no right to disavow a child because maternity is never
uncertain. (Concepcion v. CA, G.R. No. 123450, 31 August 2005)

17.  When can the child bring the action for recognition of his status?

The action for recognition may be brought during the lifetime of the child when the filiation of
the illegitimate child is established by:

1. A record of birth in the civil register;

2. A final judgment
3. An admission of filiation in a public document
4. A private handwritten instrument signed by the parent concerned.

The action for recognition would be brought during the lifetime of the alleged parent if the action
is based on:

1. The open and continuous possession of the status of an illegitimate child

2. Any other means allowed by the rules or special laws.
 

18.  I am an unrecognized illegitimate child. My biological father abandoned my mother

upon learning of her pregnancy. Is there any way I can get him to recognize me so we can
be entitled to child support?

When a man refuses to recognize a child as his, there is no other recourse but to file a petition
compulsory recognition of an illegitimate child in the courts and only when filiation is proved,
only then the courts can force a man to recognize his child. The Petition must be filed during the
lifetime of the alleged parent.

If the parent and son relationship is in issue, the relationship should be established first before
support can be demanded. The civil status of sonship being denied and this civil status, from
which the right to support is derived, being in issue, it is apparent that no effect can be given to
such a claim until an authoritative declaration has been made as to the existence of the cause.
(Francisco vs. Zandueta, 61 Phil. 752)

There must be a declaration of the status of the child from which the right to support is derived
and before support can be ordered. Such a declaration may be provisional, that is, by affidavits.
(Mangulabnan vs. IAC, 185 SCRA 760)

When there is no proof of filiation, the man does not have to recognize the child and
furthermore, support may not be granted since there is no basis that the man is the father.

19.  What are examples of these moral or legal obstacles?

The following are examples of moral or legal obstacles:

1. When the recipient is an illegitimate child and the person obliged to giver support is legally
married to a woman not the mother of the child. (Pascual vs. Martinez, C.A. 37 O.G. 2418)
2. When the father has been shown to have previously maltreated the child severely. (Pascual vs.
Martinez, C.A. 37 O.G. 2418)
3. When the wife is maltreated for refusing to perform unchaste acts with the husband. (Goitia vs.
Campos Rueda, 35 Phil. 576)
4. When the father has been criminally guilty of seduction (U.S. vs. Alvir, 9 Phil. 576)
5. When the wife cannot live with the husband and her mother-in-law because of constant
quarrels arising from in-law relationship. (del Rosario vs. Del Rosario, C.A. 46 O.G. No. 12, p.
6122)
 

20.  What is legitimation?

Legitimation is a remedy by means of which those who in fact were not born in wedlock and
should, therefore, be considered illegitimate, are, by fiction, considered legitimate, it being
supposed that they were born when their parents were already validly married. It shall take place
only by the subsequent valid marriage between the biological parents. (P. 251, Handbook on
Family Code of the Philippines, Alicia V, Sempio-Diy).

21.  Who can be legitimated?

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 impediments to marry each other, may be
legitimated (Article 177 of the Family Code of the Philippines).

22.  What is the process of legitimation?

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

23.  What are the requisites of legitimation?

The requisites of legitimation are:

1. The child is illegitimate.

2. The parents at the time of the child’s conception are not disqualified by any impediment from
marrying each other or were so disqualified only because either or both of them were below
eighteen (18) years of age.
3. There is a valid marriage subsequent to the child’s marriage.

24.  What is the status of children conceived by artificial insemination?

The status of the child is legitimate, if both the spouses authorized or ratified such procedure in a
written instrument, executed and signed, before the birth of the child and recorded. (Article 164
of the Family Code)
 

25.  What if one of the parent of a child born of artificial insemination, declare that their
consent was induced by fraud?

The status of the said child would be illegitimate as one of the conditions were not met.

26.  What is the status of a child who was born after 300 days of the termination of the first
marriage of his mother and contracted a second marriage?

The child wound belong to the father of the first marriage, if the child was born before the lapse
of 180 days after the celebration of the second marriage, provided that it was born within 300
days after termination of the first marriage.

However, the child would belong to the father of the second marriage, if the child was born after
180 days following celebration of the second marriage, whether born within 300 days after
termination of the first marriage, or afterwards. (Article 168 of the Family Code)

27.  I have a 3 year old son with a married man. He wants custody of the child. Would the
courts grant him custody?

No, an illegitimate child shall be under the sole custody of the mother. Thus, regardless of the
child being wanted by the father, it is the mother who has the parental authority of the child and
has sole custody over him. Only when it can be proved that the mother is unfit to have custody of
the child, the custody will then be awarded to the father.

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 of the Family
Code of the Philippines)

Parental authority is the natural right and duty of parents over the person and property of their
minor children which include the caring and rearing of them for civic consciousness and
efficiency and development of their moral, mental and physical character and well-being
(Article 209 of the Family Code of the Philippines).

 
28.  What if the child was recognized by the father and contains his surname in the birth
certificate?

The child is still considered illegitimate as he was conceived and borne out of wedlock. Thus,
being illegitimate, he is placed under the custody of his mother to the exclusion of even the
child’s biological father.

“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.” (Article 176 of the
Family Code of the Philippines)

29.  I have a 7 year old son. His biological father just died leaving his wife and 2 daughters.
Will my child have a share in the estate?

Yes, your son is entitled to half the legitime of the legitimate child. Your son will get half of
what his sisters would be getting. (Article 176 of the Family Code)
Should there be no distinction between legitimate and
illegitimate children?

A news item from the Philippine Star reveals that House Bill 2355 was filed by Albay 2nd
District Rep. Al Francis Bichara ‘which seeks to treat legitimate and illegitimate children as co-
equal.‘The last portion of the report cites Congressman Bichara as saying that ‘aside from being
marginalized as a result of this unwarranted label, children born out of marriage have limited
rights and privileges especially with respect to successional rights.‘

Presently, the intestate share and legitime of an illegitimate child is one half of that of a
legitimate child, and there is a barrier of intestate succession under Article 992 of the Civil Code
between illegitimate children and the legitimate relatives of his/her parent.

In relation to the proposed amendment, it is best to remember that the distinction between
legitimate and illegitimate children do not only deal with successional rights –  there are other
distinctions found in Philippine law between legitimate and illegitimate children. Some of these
distinctions include:

1. Which parent exercises parental authority over the child – default parental authority over an
illegitimate child resides only in the mother under Article 176 of the Family Code as amended by
RA 9255 even if the child is recognized by the father, while default parental authority over
legitimate children reside in both parents under Article 211 of the Family Code.

2. Questions over whether the conjugal partnership or absolute community should be liable for
the amount of support a parent gives to his/her illegitimate child – under Articles 94(9) and 122
3rd paragraph of the Family Code, conjugal partnership / absolute community property are only
secondarily liable for the support of illegitimate children since primary responsibility falls on the
parent’s exclusive property; on the other hand, support of legitimate children are a primary
liability of the conjugal partnership of gains and absolute community of property under Articles
94(1) and Art 121(1) of the Family Code.

3. The use of the father’s name as surname – the legitimate child is obligated to use the father’s
surname since Article 174 of the Family Code says that the legitimate child shall have the right
‘[t]o bear the surnames of the father and the mother, in conformity with the provisions of the
Civil Code on Surnames‘ and Article 364 of the Civil Code uses the mandatory word ‘shall‘ in
stating that ‘[l]egitimate and legitimated children shall principally use the surname of the
father;‘ on the other hand, recognized illegitimate children under Article 176 of the Family Code
as amended by RA 9255 may choose to use or not to use their father’s surname since Article 176
of the Family Code says that ‘illegitimate children may use the surname of their father if their
filiation has been expressly recognized‘.

4. The prohibition of certain marriages – under Article 38(7) of the Family Code, a marriage
between an adopted child and a legitimate child of the adopter is void as against public policy,
while there is no such prohibition between a marriage between an adopted child and an
illegitimate child of the adopter, Article 38(7) of the Family Code being an express statutory
exception to the general rule is that “[t]he relationship created by the adoption is between only
the adopting parents and the adopted child and does not extend to the blood relatives of either
party”: see Sayson vs CA (G.R. Nos. 89224-25, 23 January 1992).

5. The requirement of consent of the adopter’s children to the adoption – under Section 9 of RA
8552 the adopter’s legitimate children ten years of age or over must give their consent to the
adoption but the consent of the adopter’s illegitimate children of the same age is necessary only
if the illegitimate children are ‘living with said adopter and the latter’s spouse‘.

6. The use of a middle name – An unrecognized illegitimate child may be unjustly discriminated
in school because his or her name does not contain a middle name. In Wang vs Cebu City Civil
Registrar (G.R. No. 159966.  March 30, 2005) it was stated that

[A]n illegitimate child whose filiation is not recognized by the father bears only a given name
and his mother’s surname, and does not have a middle name.  The name of the unrecognized
illegitimate child therefore identifies him as such.  It is only when the illegitimate child is
legitimated by the subsequent marriage of his parents or acknowledged by the father in a public
document or private handwritten instrument that he bears both his mother’s surname as his
middle name and his father’s surname as his surname, reflecting his status as a legitimated child
or an acknowledged illegitimate child.

In the same case of Wang it was stated that ‘[t]he Family Code gives legitimate children the
right to bear the surnames of the father and the mother.‘

7. Proof of filiation – A legitimate child is one who is born or conceived during the parent’s
marriage; once operative facts are proven to give rise to the presumption of legitimacy (one
operative fact being that the child is born or conceived of the wife during the marriage), then the
presumption of legitimacy arises without need of any other proof. Illegitimacy requires either a
voluntary recognition (under the first paragraph of Article 172 of the Family Code, it is a
voluntary recognition found in a record of birth,  public document or a private handwritten
instrument and signed by the parent concerned), or a compulsory recognition through a court
judgment (requiring proof under the 2nd paragraph of Article 172 of the Family Code – ‘[t]he
open and continuous possession of the status of a legitimate child’ and ‘[a]ny other means
allowed by the Rules of Court and special laws’).

– Atty. Alex Andrew P. Icao

Illegitimate child entitled to share from father’s inheritance
August 22, 2014 9:41 pm

by PERSIDA ACOSTA

Dear PAO,
I have a daughter with my ex-boyfriend. My ex-boyfriend acknowledged our daughter as his
child and he even signed my daughter’s birth certificate. I recently found out, however, that my
ex-boyfriend already passed away and that he left another child with his wife. Because of this, I
want to know if there is any chance that my daughter can get any inheritance from his father
since I know for a fact that my ex-boyfriend is well-off. I tried to communicate and discuss this
with the family of my ex-boyfriend but I was told that my child has no right to inherit from her
father and that she is not going to get anything. I just want to know if my child has a right to
claim inheritance from her father even if she is an illegitimate child and how much will my
daughter get from her father. I hope you can advice me on this matter. Thank you!                 
Delilah

Dear Delilah,
Philippine laws provide for the rights of children, both legitimate and illegitimate, to inherit from
their parents. Article 887 of the Civil Code of the Philippines enumerates the list of compulsory
heirs, including illegitimate children along with legitimate children of the deceased, as among
those entitled to compulsory inheritance from pieces of property left by the deceased parents.
And in relation to this, the portion of the property left by a deceased parent for their children is
called legitime, which is defined by law as:

“Legitime is that part of the testator’s property which he cannot dispose of because the law has
reserved it for certain heirs, who are, therefore, called compulsory heirs” (Art. 886, Civil Code of
the Philippines).

As stated in this cited law, legitimes are reserved for compulsory heirs. And since illegitimate
children, such as your daughter, are recognized under the law as compulsory heirs, then it
follows that she is also entitled to a share in the property left by her father that is reserved by law
for her. Thus, there is no basis in the claim of your ex-boyfriend’s family that your daughter has
no right to inherit from her father.

Note however that before illegitimate children can be considered as compulsory heirs, there is
still a requirement for them to duly prove their filiation with their deceased parent. And in your
situation, since you have mentioned that the father of your daughter signed her birth certificate,
this is an acknowledgment of his relation as a father, which is a sufficient proof of his filiation to
your daughter. Therefore, the status of being an illegitimate child of your daughter, by itself, is
not an impediment to her right to inherit from her deceased father.

Finally, with regard to the share of your daughter from the legitime of his father, it is important
to note that the law also provides for the size of the share to be received by an illegitimate child
compared with the share of a legitimate child. The law states that an illegitimate child shall
receive a share equivalent to half of the share that will be received by a legitimate child who in
turn shall receive a share of half of the value of the whole legitime (Art. 895, Civil Code of the
Philippines). As an example, if the total value of the legitime left by a deceased is two million
pesos (P2,000,000.00), a legitimate child shall receive one million pesos (P1,000,000.00) from it,
while an illegitimate child is entitled to only five hundred thousand pesos (P500,000.00), which
is half of the value received by the legitimate child. Thus, although your daughter is entitled to a
share in the legitime, the size of her share is limited by this provision of the law.

Again, we find it necessary to mention that this opinion is solely based on the facts you have
narrated and our appreciation of the same. The opinion may vary when the facts are changed or
elaborated.

We hope that we were able to enlighten you on the matter.