Legitimation of an illegitimate child

Legitimation is the process by which a child born out of wedlock may be legitimated and enjoy the same status and rights as a legitimate child. It takes place when the parents of the child who were not married to each other at the time of conception, enter into a valid marriage after the birth of the child.

Who can be legitimated? Before the Family Code took effect on Aug. 3, 1988, the applicable provision was Art. 269 of the Civil Code which provided that "[O]nly natural children can be legitimated. Children 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, are natural." The Family Code, in Art. 177, now provides: "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." The only change was the deletion of "natural". This had to do with the elimination of the classification of natural children. Under the Family Code, there are only two classifications of children, namely, legitimate and illegitimate.

Children conceived and born outside a valid marriage are illegitimate. They are those born of parents who were not married or those born of common law marriages, incestuous marriages, bigamous marriages, adulterous relations, marriages void for reasons of public policy, couples below 18 years of age, other void marriages except those based on the psychological incapacity of the spouse(s) and remarriage of such psychologically incapacitated spouse(s) where the requirements have not been met. However, not all illegitimate children can be legitimated. Otherwise, Art. 177 could have just said that all children born outside of wedlock may be legitimated. To qualify for legitimation, the illegitimate child’s parents should not have been disqualified by any impediment to marry at the time of conception.

The case of De Santos vs. Hon. Angeles, et al. (Dec. 12, 1995; 251 SCRA 206) exhaustively tackled a gray area of legitimation under the Civil Code – whether Art. 289 allows legitimation of not only "natural children proper" but also "natural children by legal fiction". Under the Civil Code, children born of marriages which are void from the beginning or after the decree of annulment in voidable marriages are "natural children by legal fiction". Children conceived of parents who, at that time, were not disqualified to marry by any impediment are the "natural children proper". Briefly, the parents of the child in the De Santos case could not validly marry because one had a prior subsisting marriage. They did marry but their marriage was bigamous or void from the beginning. The issue was whether the child born of that bigamous marriage who is considered a "natural child by legal fiction" became legitimated when his parents married after the death of the first spouse. The Supreme Court held that even if Art. 89 of the Civil Code gave natural children by legal fiction the same status, rights and obligations as acknowledged natural children, Art. 269 applies only to natural children proper or those born outside of wedlock of parents who, at the time of the conception, were not disqualified by any impediment to marry. The De Santos case and the repeal of Art. 89 of the Civil Code thus support a strict interpretation of Art. 177 of the Family Code.

Supposing that the prior subsisting marriage is void or voidable, can the illegitimate child of one of the spouses born before the declaration of absolute nullity or judgment of annulment be legitimated. The prevailing view is that the illegitimate child cannot be legitimated because the parent with the prior subsisting marriage was disqualified to marry at the time of conception. Even if the prior subsisting marriage is void or voidable and a declaration of absolute nullity or judgment of annulment is obtained after the birth of the illegitimate child, legitimation cannot take place.

Justice Alicia V. Sempio-Diy, who was a member of the Civil Code Revision Committee that drafted the Family Code, cited as one of the reasons for limiting legitimation the unfairness to the legitimate children in terms of successional rights. Presently, therefore, children of adulterous relations, incestuous and bigamous marriages, and other void marriages, and marriages void by reason of public policy under Art. 38 of the Family Code (marriages between collateral blood relatives up to the fourth civil degree, other relatives by affinity or adoption and where one killed his spouse or the spouse of the other party) are incapable of legitimation.

Legitimation takes place by the subsequent marriage of the parents of the child. Justice Diy opines that as long as the requisites of Art. 177 are complied with, the child is ipso facto legitimated no matter how long a period of time has elapsed from the birth of said child to the subsequent marriage of his parents. In fact, even if the subsequent marriage turns out to be voidable and is annulled, the child remains legitimated. Further, the effects of legitimation retroact to the time of the child’s birth.

Legitimation may be impugned by those prejudiced in their rights within five years from the time their cause of action accrues. Those prejudiced are the legitimate children or their heirs since they will suffer a diminution of inheritance. Since the prejudice involves successional rights, the cause of action accrues upon the death of the common parent.

(The author is a senior partner of Angara Abello Concepcion Regala & Cruz Law Offices. She may be contacted at 830-8000; fax at 894-4697 or email at: [email protected])