Introduction

In the Philippines, the status of a child—whether legitimate or illegitimate—carries significant legal implications, affecting rights to support, succession, and even the use of surnames. The Family Code of the Philippines (Executive Order No. 209, as amended) provides the primary framework for determining filiation and the processes by which a child's status may be elevated through legitimation. Legitimation is a legal mechanism designed to confer legitimacy upon children born out of wedlock by virtue of the subsequent marriage of their biological parents. However, complexities arise when the mother is already bound by a prior marriage that remains valid and subsisting. This article explores the intricacies of legitimation under Philippine law, with a focus on whether it is possible when the mother's first marriage still exists, examining relevant provisions, requirements, procedural aspects, effects, and potential barriers.

Understanding Legitimation Under the Family Code

Legitimation is governed primarily by Articles 177 to 182 of the Family Code. It is a remedial measure intended to protect the welfare of children by removing the stigma and legal disadvantages associated with illegitimate status.

Definition and Requirements

Article 177 of the Family Code states: "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." Legitimation occurs automatically upon the valid subsequent marriage of the child's biological parents. Key requirements include:

The child must be illegitimate at birth, meaning conceived and born outside a valid marriage.
The parents must not have been disqualified from marrying each other at the time of the child's conception (e.g., no existing legal impediments such as a prior subsisting marriage).
A valid marriage between the parents must take place after the child's birth.

Amendments to the law, such as Republic Act No. 9255 (2004), which allows illegitimate children to use their father's surname upon acknowledgment, do not alter the core requirements for legitimation but complement them by providing additional rights to illegitimate children. Further, Republic Act No. 9858 (2009) expanded legitimation to include children born to parents who were disqualified from marrying due to age (minority) at conception, provided the marriage occurs after both reach the age of majority.

Effects of Legitimation

Once legitimated, the child enjoys the full rights of a legitimate child retroactively from the date of birth, as per Article 179. These rights include:

Equal status in succession (Article 178), entitling the child to the same legitime as legitimate children.
Right to parental authority, support, and the use of the parents' surnames without qualifiers like "Jr." or indications of illegitimacy.
Retroactive application, meaning the child's status is deemed legitimate from birth for purposes of civil registry records and legal documents (Article 180).

The effects do not, however, erase prior acts or contracts entered into under the illegitimate status, nor do they prejudice third parties who acted in good faith.

Procedure for Legitimation

Legitimation is not a judicial process but an administrative one, requiring:

The execution of an Affidavit of Legitimation by the parents, acknowledging the child and the fact of marriage.
Annotation in the child's birth certificate at the Civil Registry (Article 180).
If the child is over 18, their consent is required for the annotation.

Failure to follow this procedure does not invalidate the legitimation itself, which vests upon marriage, but it may delay official recognition.

The Presumption of Legitimacy and Illegitimate Children

To address the core question, it is essential to distinguish between legitimate and illegitimate children, particularly in the context of a mother's existing marriage.

Presumption of Legitimacy

Under Article 164, children conceived or born during a valid marriage are presumed legitimate. This presumption is strong and can only be rebutted by clear and convincing evidence under Article 166, on grounds such as:

Physical impossibility of the husband accessing the wife during the conception period (e.g., due to absence or impotence).
Serious illness preventing conception.
Biological or scientific proof (e.g., DNA evidence) showing the husband is not the father, as allowed by later jurisprudence and amendments.

If a child is born to a married woman but fathered by another man, the child is initially presumed legitimate to the husband. Impugning this legitimacy requires a court action, typically filed by the husband within specified periods (Article 170: one year from knowledge for the husband, or three years for others).

If the presumption is successfully rebutted, the child is reclassified as illegitimate. However, this does not automatically lead to legitimation.

Illegitimacy in the Context of Adultery or Concubinage

A child born from an extramarital relationship while the mother's marriage subsists is often the result of adultery (for the mother) or concubinage (for the father). Such children are illegitimate unless the presumption of legitimacy is overcome. Even then, legitimation hinges on the parents' ability to marry.

Barriers to Legitimation When the Mother’s First Marriage Subsists

The central issue is whether legitimation can occur if the mother's prior marriage remains valid and undissolved. The answer is unequivocally no, for several reasons rooted in Philippine law's emphasis on monogamy and the validity of marriage.

Impediment of a Subsisting Marriage

Article 177 requires that the parents be free from impediments to marry at the time of the child's conception and, crucially, that they enter into a valid subsequent marriage. A subsisting marriage constitutes an absolute impediment under Article 35(4), rendering any subsequent marriage void ab initio (bigamous). Bigamy is a criminal offense under Article 349 of the Revised Penal Code, punishable by imprisonment.

If the mother's first marriage exists, she cannot legally marry the child's biological father without first terminating the prior union. Termination options are limited in the Philippines, as absolute divorce is not recognized for Filipino citizens (except under the Muslim Personal Laws or for foreigners in mixed marriages under Article 26). Instead:

Annulment (Articles 45-47): For voidable marriages, on grounds like fraud, impotence, or psychological incapacity.
Declaration of Nullity (Articles 35-38): For void marriages, such as bigamous, incestuous, or lacking essential requisites.
Legal Separation (Articles 55-67): Allows separation of bed and board but does not dissolve the marriage bond, so remarriage is impossible.

Without ending the first marriage, any attempt to marry the biological father would be invalid, and thus incapable of effecting legitimation.

Conception During a Subsisting Marriage

If the child was conceived while the mother's first marriage was intact, the parents were disqualified from marrying each other at conception due to the impediment. Article 177 explicitly excludes such children from legitimation, even if the first marriage is later terminated and the parents marry. This is a strict rule to uphold marital fidelity.

Jurisprudence, such as in Abella v. Civil Registrar (G.R. No. 161079, 2005), reinforces that legitimation requires no impediments at conception. If the mother was married at conception, the child cannot be legitimated later.

Exceptions and Special Cases

Void Marriages: If the first marriage is void from the beginning (e.g., due to lack of marriage license), it is as if it never existed. In such cases, the mother was never truly married, allowing for legitimation upon marriage to the biological father. However, this requires a judicial declaration of nullity before remarriage (Article 40).
Minority as Impediment: Under RA 9858, if the only impediment at conception was age, legitimation is possible once both parents reach 18 and marry.
Children Born Before the Family Code: Article 182 provides transitional rules for children born before August 3, 1988, but the subsisting marriage barrier remains.
Adoption as Alternative: If legitimation is impossible, adoption (under RA 8552 or RA 8043 for inter-country) may confer similar rights, but it is a distinct process requiring court approval and does not retroactively change birth status.

No exceptions allow legitimation while the first marriage subsists, as this would contravene public policy against bigamy.

Related Legal Implications

Acknowledgment of Illegitimate Children

Even without legitimation, the biological father may acknowledge the child voluntarily (Article 172) via public document, will, or court action, granting rights to support and surname use (RA 9255). However, this falls short of full legitimacy.

Succession and Property Rights

Illegitimate children receive half the legitime of legitimate ones (Article 176, as amended by RA 9255). Legitimation equalizes this, but without it, disparities persist.

Custody and Support

Illegitimate children are under the mother's sole parental authority (Article 176), unless the father acknowledges and seeks joint authority. Support obligations remain enforceable against both parents.

Jurisprudence and Policy Considerations

Supreme Court decisions, such as De Jesus v. Estate of Dizon (G.R. No. 142877, 2001), emphasize protecting children's welfare but uphold strict legitimation rules to preserve family stability. Policy-wise, the law discourages extramarital affairs by limiting remedies when marriages subsist.

Conclusion

Under the Philippine Family Code, a child cannot be legitimated if the mother's first marriage still exists, as this prevents a valid subsequent marriage to the biological father—a prerequisite for legitimation. The child may remain presumed legitimate to the first husband or be deemed illegitimate if the presumption is rebutted, but legitimation is barred by legal impediments and public policy. To achieve legitimation, the first marriage must be judicially nullified or annulled, allowing the parents to marry without violation. Parties in such situations should consult legal counsel to explore annulment, acknowledgment, or adoption as alternatives, ensuring the child's best interests are prioritized in accordance with constitutional mandates (Article II, Section 12, 1987 Constitution). This framework reflects the Philippines' commitment to monogamous marriages while providing mechanisms for child protection.