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 (300) 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 (180) 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 (300) days after the termination of the former marriage;
(2)
A child born AFTER one hundred eighty (180) 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 (300) 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 (181) days AFTER her marriage shall have been annulled or dissolved.
Please
be reminded that the above legal opinion is solely based on our
appreciation of the problem that you have presented. The opinion may
vary when other facts are stated.
source: Manila Times' Column of Atty Persida Acosta with emphasis provided by Broker Rem
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