“I am a married woman but I am separated from my husband and presently living with another man. I had a child with the man I am presently living with, what is the status of the child?”
Several listeners of my radio program “Punto Legal” aired over DZWT 540 asked me this question. I also know that there are several individuals or couples who have the same problem or situation. Due to the long and expensive process of a petition for declaration of nullity, married individuals who are living separately from their spouses are in this situation. They live together and have children with their partners although their marriage with their respective legal spouses still subsist. This creates a complicated situation particularly for the married woman. If she gives birth to a child but the father is not the legal spouse, there is created a complicated legal situation. The child is presumed to be the child of the legal husband. This is a situation demonstrated in a case where the child filed a case seeking recognition as a spurious child of his supposed biological father and to be considered as one of the heirs.
Liyao Jr. vs. Liyao et., al.
William ”Billy” Liyao Jr. is the son of Corazon Garcia who was married to Ramon Yulo but were living separately from each other. Corazon cohabited with William Liyao and during that time the former conceived and gave birth to a son, William Jr. The elder Liyao visited and stayed with the new born and mother at the hospital, paid for all the expenses, and presented the younger Liyao as his “good looking son”. William would bring his son in his office and would present him to everyone as his son and provided for his needs. Friends and acquaintances of William and Corazon knew that Billy was the son of William. When the latter died of a heart attack, Billy assisted by his mother Corazon, filed a case seeking to be recognized as a spurious child of William and considered as one of the heirs of the late William. The trial court granted the petition but on appeal the Court of Appeals reversed the decision. The Supreme Court affirmed the decision of the CA.
Billy is presumed to be the legitimate child of Ramon Yulo, the legal husband of Corazon. “Under the New Civil Code, a child born and conceived during a valid marriage is presumed to be legitimate. The presumption of legitimacy of children does not only flow out from a declaration contained in the statute but is based on the broad principles of natural justice and the supposed virtue of the mother. The presumption is grounded in a policy to protect innocent offspring from the odium of illegitimacy.” (G.R. 138961, 07 March 2002) The law considers Billy as the legitimate child of Ramon and Corazon because at the time of his conception and birth, Ramon and Corazon’s marriage was still subsisting. This presumption may only be overturned if it can be shown that it was physically impossible for the husband and wife to have had physical contact “within the first one hundred and twenty of the three hundred which precede the birth of the child” (Art. 255, of the New Civil Code, Art. 166 in the Family Code). But even if there was physical impossibility the petition could not be granted. “While physical impossibility for the husband to have sexual intercourse with his wife is one of the grounds for impugning the legitimacy of the child, it bears emphasis that the grounds for impugning the legitimacy of the child mentioned in Article 255 of the Civil Code may only be invoked by the husband, or in proper cases, his heirs under the conditions set forth under Article 262 of the Civil Code. Impugning the legitimacy of the child is a strictly personal right of the husband, or in exceptional cases, his heirs for the simple reason that he is the one directly confronted with the scandal and ridicule which the infidelity of his wife produces and he should be the one to decide whether to conceal that infidelity or expose it in view of the moral and economic interest involved.”