Child born to married woman is her husband’s

Dear PAO,

I am waiting for the result of my annulment but I am planning to have a baby with my present boyfriend,
who is single and will acknowledge the baby. Will there be any problem on the processing for the
legitimation if my baby is born while my annulment is still on process? When can we start processing the
legitimation of our child?

Jaja

Dear Jaja,

Under the Family Code, an illegitimate child who is born to parents who are not married at the time of
his birth may become a legitimate child upon the subsequent marriage of his parents following the
provision of Article 177 of the Family Code, which states that 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 application for the annotation of the
legitimation in the child’s birth certificate may be processed immediately after the marriage of the
parents in the local civil registry of the place where the child was born. Based from the foregoing, a child
with your present boyfriend, who would be born while the annulment of your previous marriage is on
process, cannot be legitimated by your subsequent marriage because of such existing marriage, which
disqualifies you from marrying his father.

Moreover, there is a presumption in the Family Code that a child who is conceived or born during the
marriage of parents is considered their legitimate child even if the mother may have declared against its
legitimacy or may have been sentenced as an adulteress (Article 164 and Article 167, Family Code). The
above provision of law means that a child born to a woman who is married is presumed to be her
legitimate child with her husband. This presumption may be overcome if the father would impugn the
legitimacy of the child within a limited period. The child would be considered legitimate if said husband
failed to impugn said legitimacy.

In order to avoid any difficulty or problem regarding the status of your child, it is best that you wait for
your marriage to be annulled and after the lapse of three hundred days thereafter. The lapse of three
hundred days is required to avoid any controversy which could arise in connection with Article 168 of
the Family Code, which states that:
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.

It is moreover suggested for you not to get married immediately after the issuance of the decree of
annulment to avoid prosecution for the crime of premature marriage punishable under Article 351 of
the Revised Penal Code, which provides for penalty to any woman who shall marry within three hundred
and one days after her marriage shall have been annulled or dissolved.