On what grounds may the legitimacy of a child be impugned?

Legitimacy of a child may be impugned only on the following grounds:

(1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of:

(a) the physical incapacity of the husband to have sexual intercourse with his wife;

(b) the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or

(c) serious illness of the husband, which absolutely prevented sexual intercourse;

(2) That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the instance provided in the second paragraph of Article 164 where the child is conceived as a result of artificial insemination; or

(3) That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence. (Art. 166, Family Code)


Who may impugn the legitimacy of the child?

Generally, only the husband can contest the legitimacy of a child born to his wife. He is the one directly confronted with the scandal and ridicule which the infidelity of his wife produces; and he should decide whether to conceal that infidelity or expose it, in view of the moral or economic interest involved. (Macadangdang vs. CA, G.R. No. L-49542, September 12, 1980; Liyao vs. Tanhoti-Liyao, G.R. No. 138961. March 7, 2002)

It is only in exceptional cases that his heirs are allowed to contest such legitimacy. Outside of these cases, none - even his heirs - can impugn legitimacy; that would amount to an insult to his memory. (Liyao vs. Tanhoti-Liyao)


In what instances may the heirs of the husband impugn the filiation of the child?

The heirs of the husband may impugn the filiation of the child only in the following cases:

(1) If the husband should die before the expiration of the period fixed for bringing his action;

(2) If he should die after the filing of the complaint without having desisted therefrom; or

(3) If the child was born after the death of the husband. (Art. 171, Family Code)


When should the action to question the legitimacy of a child be filed in court?

The action to impugn the legitimacy of the child may be brought within 1, 2, or 3 years from the
knowledge of the birth or its recording in the civil register. Article 170 of the Family Code provides:

1. The action to impugn the legitimacy of the child must be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded.

2. If the husband or, in his default, all of his heirs do not reside at the place of birth as defined in the paragraph above or where it was recorded, the period shall be two years if they should reside in the Philippines; and three years if abroad. 

3. If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period must be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, whichever is earlier. 


May impotency be a ground for impugning of the legitimacy of a child?

Impotence refers to the inability of the male organ to copulation, to perform its proper function. As defined in the celebrated case of Menciano vs. San Jose (89 Phil. 63), impotency is the physical inability to have sexual intercourse. It is not synonymous with sterility. Sterility refers to the inability to procreate, whereas, impotence refers to the physical inability to perform the act of sexual intercourse. In respect of the impotency of the husband of the mother of a child, to overcome the presumption of legitimacy on conception or birth in wedlock or to show illegitimacy, it has been held or recognized that the evidence or proof must be clear or satisfactory: clear, satisfactory and convincing, irresistible or positive (Macadangdang vs. CA). 


Will an advance stage of tuberculosis establish a ground for impugnation of the legitimacy of a child?

No. Just because tuberculosis is advanced in a man does not necessarily mean that he is incapable of sexual intercourse. There are cases where persons suffering from tuberculosis can do the carnal act even in the most crucial stage of health because then they seemed to be more inclined to sexual intercourse (Macadangdang vs. CA). Experience shows that tuberculosis does not prevent carnal intercourse. (Andal vs. Macaraeg, G.R. No. L-2474, May 30, 1951)


■This presumption of legitimacy is based on the assumption that there is sexual union in marriage, particularly during the period of conception. Hence, proof of the physical impossibility of such sexual union prevents the application of the presumption. 

The modern rule is that, in order to overthrow the presumption of legitimacy, it must be shown beyond reasonable doubt that there was no access as could have enabled the husband to be the father of the child. Sexual intercourse is to be presumed where personal access is not disproved, unless such presumption is rebutted by evidence to the contrary; where sexual intercourse is presumed or proved, the husband must be taken to be the father of the child.

To defeat the presumption of legitimacy, therefore, there must be physical impossibility of access by the husband to the wife during the period of conception. The law expressly refers to physical impossibility. Hence, a circumstance which makes sexual relations improbable, cannot defeat the presumption of legitimacy; but it may be proved as a circumstance to corroborate proof of physical impossibility of access.

The separation between the spouses must be such as to make sexual access impossible. This may take place when they reside in different countries or provinces, and they have never been together during the period of conception (Estate of Benito Marcelo, 60 Phil. 442). Or, the husband may be in prison during the period of conception, unless it appears that sexual union took place through corrupt violation of or allowed by prison regulations.

The illness of the husband must be of such a nature as to exclude the possibility of his having sexual intercourse with his wife; such as, when because of a injury, he was placed in a plaster cast, and it was inconceivable to have sexual intercourse without the most severe pain; or the illness produced temporary or permanent impotence, making copulation impossible (Macadangdang vs. CA).