Papers of the Private Law of the Philippines and Spain International Scientific Congress

Papers of the Private Law of the Philippines and Spain International Scientific Congress

Coord.: José Manuel de Torres Perea
Universidad de Málaga

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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.    


            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.