FILIATION: In the Philippine Modern Society

“In every child who is born, under no matter what circumstances, and of no matter what
parents, the potentiality of the human race is born again; and in him, too, once more, and of each
of us, our terrific responsibility towards human life; towards the utmost idea of goodfsness, of the
horror of error, and of God.” – James Agee

I. INTRODUCTION

Filiation, generally, refers to the recognized legal status of the relationship

between family members. Specifically, from the child’s perspective, it is the legal bond
connecting him to his mother or to his father.1

It is said that filiation is one of the major components of someone’s personality;

that which completes his identity. As such, it is often with important implications for a
person’s welfare in social and personal terms.2 Thus, this relationship is covered by law
for familial and social reasons, and various effects, rights, obligations, and liabilities
arise therefrom.3 However, it does not arise, unmediated, from brute facts such as siring
a child or giving birth. It is to be expected, then, as in the case of other legal constructs,
that there will often be a gap between a parent-like state of fact and filiation or
parentage as a matter of law.4

The Filipino Family and Marriage

The family is the natural and fundamental group unit of society and is entitled to
protection by the State.5 No more than the 1987 Philippine Constitution recognizes as
one of its State Policies that “the State recognizes the sanctity of family life and shall
protect and strengthen the family as a basic autonomous social institution.”6 It goes

1 Leckey, R., June 2012, “Filiation,” McGill Companion to Law, https://www.mcgill.ca/

companion/list/filiation, (November 8, 2017)
2 Hum, S.F., 1994, “Filiation in assisted reproduction: potential conflicts and legal implications,” Pubmed,

https://www.ncbi.nlm.nih.gov/pubmed/7962447, November 8, 2017.

3 Corral, H.F., 2001, “Filiation and Assisted Reproductive Technology,” https://corraltalciani.files.

wordpress. com/2010/04/filiation-in-art.pdf, November 8, 2017.

4 Leckey, R., op cit.

5 Article 16(3) , UDHR

6 Article II, Sec 12, Philippine Constituion

further by devoting a whole Article to the protection of the “family”, stating that “The
State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall
strengthen its solidarity and actively promote its total development.”7

Adding to the fact that Filipinos are widely known and described as family-
oriented, and that Filipino families have been observed to be closely-knit, it is not
farfetched that a wide number of laws have been passed over the years for its
protection. One best example is the Family Code of the Philippines which took effect on
August 3, 1988.

The cherished Filipino family is, however, not without qualifications. Its
solidarity is premised on the sanctity of marriage and is characterized by the premium
placed on legitimacy. Filipinos honor the family and spurious relationships are
discouraged, if not condemned. While the advocacy for the rights of the child have
found its way in Philippine laws and jurisprudence, the thrust of discouraging illicit
relationships remains.8

This, nevertheless, was not always the case. The system of laws adopted in the
Philippines has undergone a lot of modifications that were based on the changing
experiences of Filipinos. However, such modifications would readily show that though
a majority of these laws are based on foreign laws, there were still efforts from the
lawmakers to infuse in such laws the culture and principles of Filipinos.

To start with, it is a historical fact that the indigenous tribes in the Philippines,
upon emerging from the hunting into the agricultural stage, settled down into
barangays composed of anywhere from thirty to one hundred families. Here, the
family was already recognized as a basic unit of society and marriage was considered a
contract between families which gave their mutual consent instead of individuals.
However, polygamy was still tolerated and divorce or separation was relatively liberal
on grounds of incompatibility, neglect, or misconduct.9

When the Spaniards conquered the Philippines towards the close of the
nineteenth century with the sword in one hand and the cross in the other, their legal
system was likewise transplanted here. At its core was the early Roman law intertwined
with religion. Actually, the Spanish Civil Code is said to have embodied the doctrines of

7Article XV, Section 1, Philippine Constitution.

8Ateneo pdf
9 Romero, F.R.P., “Concerns and Emerging Trends On Laws Relating to Family and Children,”

http://plj.upd.edu.ph/concerns-and-emerging-trends-on-laws-relating-to-family-and-children/ ,
November 8, 2017
the Church. A bird’s eye-view of the laws governing family relations and marriage in
the Philippines will reveal that the Spanish Civil Code has been the underlying legal
foundation in this sphere of our national life.10

With the advent of the American regime, major amendments in such field of law
emerged, namely: the Marriage Law and The Act to Establish Divorce. Nonetheless,
with the achievement of Philippine Independence after World War II, then President
Manuel A. Roxas created a Commission headed by Dr. Jorge C. Bocobo in view of the
“need for immediate revision of all existing substantive laws of the Philippines and of
codifying them in conformity with the customs, traditions, and idiosyncrasies of the
Filipino people and with modern trends in legislation and the progressive principles of
law.”

Eventually, Republic Act No. 386 or the Civil Code of the Philippines took effect
on August 30, 1950 where fifty-seven percent of the 2270 articles were still derived from
the Spanish Civil Code although quite a number of new provisions were taken from
other Civil Law countries. The new Code likewise restated doctrines laid down by the
Supreme Court and amendments and innovations were incorporated to rectify unjust or
unwise provisions heretofore in force.11

The next major effort to introduce radical amendments was the Civil Code
Revision Project of the UP Law Center launched in 1979. The Project aimed to
strengthen the family, clearly define the rights of women in society as equal to that of
the men, provide additional safeguards for the protection of children, and bring our law
on paternity and filiation in step with the latest scientific discoveries. As Director of the
UP Law Center at the time, the author was privileged to be designated Chairman of the
Committee tasked to prepare a draft of the revision of Book I of the Civil Code jointly
with the Integrated Bar of the Philippines. When the resources of the IBP ran low, the
project was turned over to the Law Center with the renowned civilist Justice J.B.L.
Reyes as Chairman and Justice Ricardo C. Puno as Co-Chairman.12

Such drastic revision was based on years of experience under the Civil Code and
changes or developments in all aspects of Filipino life. The unsuitability of certain
provisions of the Code, implanted from foreign sources, has been highlighted, showing
its unfairness, unjustness, gaps and inadequacies. Thus, there was a widely accepted
fact of the need to attune them to contemporary developments and trends. Among the

10 Ibid.
11 Id.
12 Ibid.
Civil Code provisions repealed were those pertaining to Marriage, Legal Separation,
Rights and Obligations between Husband and Wife, Property Relations between
Husband and Wife, The Family, Paternity and Filiation, Support, and Parental
Authority.13

Eventually, Executive Order No. 209 was signed into law on July 6, 1987 by
President Corazon C. Aquino in her capacity as Legislator under the Freedom
Constitution of 1986. The resultant Family Code of the Philippines, enacted separately
from the Civil Code, took effect on August 3, 1988.14

Under the Family Code of the Philippines, in consonance with the concept of the
family as “the foundation of the nation,” marriage was recognized, not merely as a
contract or agreement between a man and a woman, but as an institution which once
founded, gives rise to far-reaching consequences, implications. Beings so, it was defined
as a special contract of permanent union between a man and a woman entered into in
accordance with law for the establishment of conjugal and family life. 15 Aside from the
provisions on marriage, the rights, obligations as well as the reliefs given to husbands
and wives, the Family Code of the Philippines as well provides, among others, for
provisions regarding paternity and filiation which is the subject matter of this paper.

All premises considered, it only leads to a conclusion that Filipino families have
grown to that point that blood and marriage relationships are greatly valued; that
biological ties are important and extend even up to distant relatives. As such, the
eventual development of laws that gives greater protection to children who are born of
valid marriages; children who are presumed to be the fruits of the love shared between
a man and woman who are bound by a special union. Thus, marriage is considered as
the act that founds a new family and filiation as the institution by which that family
extends forwards in time.16

A Perspective on Philippine Filiation Laws

Filiation is one of the foundational institutions of the civil law of the family. As
mentioned earlier, it is one of the major components of someone's identity, that, which
completes his being.

13 Ibid.
14 Id.
15 Article 1, Family Code of the Philippines.

16 Leckey, R., op cit.

 Considered as a whole, the law on filiation in the Philippines is generally based
on three premises.

First, that the filiation or paternity is an act of faith. Here, there is no certainty as
to the real father of the child borne by the mother. Thus, as mentioned earlier, he has to
rely on the word of the mother that the child is his.

Second, that filiation is greatly enmeshed with marriage, such that legitimate
filiation or parentage flowed from the marriage between the mother of a child and her
husband. The child’s mother was, ostensibly, known by having given birth to the child.
Her husband was irrefutably presumed to be the father. The sense was that one could
never with certainty know who had fathered a child, but one could know to whom the
mother was married and to whom an obligation of fidelity thus bound her.17

Third, that legitimacy is preferred. This is based on the old stigma attached to
bastards in society, and in law. The illegitimate child is disgracefully looked down upon
by the legitimate family. The legitimate family sees in the illegitimate child nothing but
the product of sin, palpable evidence of a blemish broken in life. As such, the solidarity
of the family prevents the raising of the illegitimate child to the same status as that of
the legitimate child.

This is further strengthened by Article 220 of the Civil Code of the Philippines. It
provides that “in case of doubt, all presumptions favor the solidarity of the family.
Thus, every intendment of law or facts leans toward the validity of marriage, the
indissolubility of the marriage bonds, the legitimacy of children x x x.” Though this
provision has been omitted in the Family Code, the principles and values contained
therein remain the public policy in the Philippines.18

In the Philippines, it is the Family Code of the Philippines that mainly govern
filiation. The lawmakers devoted 31 provisions to govern such, specifically Article 163
up to Article 182. The same was, however, based on the old Civil Code, which became
effective in August 30, 1950; that in turn, was based on the Spanish Civil Code.

The Old Spanish Civil Code determined the status of children on the basis of
presumptions. This was understandable because at that time, the 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

17 Leckey, R., op cit.

18 Ateneo
capability to establish the paternity of the child with certainty. Thus, 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.19

Proceeding from such, 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 or born
during a valid marriage, the child is legitimate, while a conceived and born outside a
valid marriage is illegitimate.20

Legitimate Filiation

The status of the children vis-à-vis their parents go to the very essence of the
stability and integrity of the family. Thus, it is to the interest of the State to uphold the
legitimacy of children inasmuch as this status spawns certain rights.21

The notion of legitimacy accompanied the development of societies and domestic

religion. Marriage was recognized as an institution and different social and cultural
systems supported the concept that procreation is an essential end of marriage. Sexual
union between spouses is assumed. Consequently, a child born to a married woman is
considered to be the child of her husband. Proceeding from this, children born in
wedlock are presumed to be legitimate. In case a child is born inside a valid marriage,
the presumption of legitimacy immediately attaches and such presumption fixes a civil
status for the child born in wedlock.22 However, 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. Here, the
status of the child is raised to the status of a legitimate child, through the later marriage
of the parents.23

19 Concepcion, D. L., “Philippine Law on Paternity and Filiation: The Spanish Legacy,”
http://www.eumed. net/libros-gratis/2015/1458/paternity-filiation.htm, November 19, 2017.
20 Ibid.

21 Romero, F.R.P., op cit.

22 Ateneo

23 Article 177, Family Code of the Philippines.

 The definition of legitimate children must not be limited to such. Under the law
children born through artificial insemination are also considered as legitimate children.
This, however, is subject to the compliance of the husband and wife with the formalities
provided by the law.24 Furthermore, children born of a valid marriage which was
subsequently declared as void under Articles 36 and 35(6) of the Family Code of the
Philippines are still considered as legitimate children. Lastly, children born after the
death of the husband, but conceived before his death, are considered the legitimate
child of the deceased husband, as long as the child was born up to three hundred days
after the death the husband, or is otherwise terminated.

The importance of determining legitimate filiation mostly lies on the resulting

rights that attach to such, namely:

1) The right to have a complete name which is composed of the following:

a) First name/s;
b) Middle name which is the maiden surname of the mother; and
c) Surname which is the surname of the father.

2) The right to receive support from their parents, their ascendants, and in
proper cases, their brothers and sisters, in conformity with the provisions of
this Code on Support;

3) The right of a minor child to be under the joint parental authority and
custody of his parents; and

4) Full successional rights as primary compulsory heir of his parents entitling

him to a legitime equivalent to one half of the hereditary estate of each of his
parents.25

It is evident that legitimacy is established by law from the moment of birth. If

facts or circumstances tend to establish legitimacy, then the presumption attaches. Proof
of legitimacy becomes proper only when the legitimacy of the child is under attack.26
Thus, legitimate filiation must be proved in the following instances:

1) When the legitimacy of the child is being questioned under the following
grounds:

24 Article 164, The Family Code of the Philippines.

25 Article 174, The Family Code of the Philippines.
26 Ateneo
 a) Physical impossibility of sexual intercourse between the husband and
wife during the first 120 days during the 300 days preceding the birth
of the child;
b) Biological or scientific reasons; and
c) Vitiated consent if the child be born through artificial insemination.

2) When the status of a child born after 300 days following the termination of
marriage is sought to be established.27

In instances when the filiation of a legitimate child is questioned, the same can be
proved by evidence. Specifically, Article 172 of the Family Code of the Philippines
provides that the filiation of legitimate children may be established by any of the
following:

1) The record of birth appearing in the civil register or a final judgment; or

2) An admission of legitimate filiation in a public document or a private

handwritten instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved
by:

1) The open and continuous possession of the status of a legitimate child; or

2) Any other means allowed by the Rules of Court and special laws.

The action to claim legitimacy may be brought by the child during his or her
lifetime and shall be transmitted to the heirs should the child die during minority or in
a state of insanity. In these cases, the heirs shall have a period of five years within which
to institute the action.28

Illegitimate Filiation

An illegitimate child is one who was born and conceived outside of a valid
marriage. Furthermore, the law confers illegitimate filiation upon children born or

27 Ateneo
28 Article 173, The Family Code of the Philippines.
conceived of void marriages except marriages declared void under Articles 36 and 35(6)
of the Family Code of the Philippines.

Under Philippine laws, an illegitimate child has only one filiation—that of his
mother. He does not have a father since the same is a stranger both to the mother, and
to the child. Furthermore, as have been mentioned, due to the policy that legitimacy is
preferred over illegitimacy; an illegitimate child cannot be raised to the same status as
that of a legitimate child. Thus, he is entitled only to the following rights:

1) The right to have a name which is composed only of two parts, specifically:
a) First name/s; and
b) Surname which is the surname of the mother.

2) The right of the child to demand support only from his mother;

3) The right of a minor child to be under the joint parental authority and
custody of only his mother; and

4) Limited successional rights as primary compulsory heir of his parents

entitling him to a legitime equivalent to one half of the share of a legitimate
child, subject to modifications as provided by law.

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. Only when the father acknowledged the child can his
filiation as to the former be established. 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.29

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. Article 172 of the Family Code of the Philippines may also be used by
the illegitimate child to prove his filiation. However, the action must be brought within
the same period as that of a legitimate child, except when the action is based on the
second paragraph of Article 172, in which case the action may be brought during the
lifetime of the alleged parent.30

29 Concepcion, D. L., op cit.

30 Article 175, The Family Code of the Philippines.
 Without such recognition, the illegitimate child acquires no rights enforceable
against the illegitimate father. If, on the other hand, the illegitimate child has been
recognized by the father, he can use the surname of his father if wishes to do so. He
may as well demand support from his father.

Legal Dilemmas regarding Philippine Filiation Laws

As discussed, the law on filiation in the Philippines, at first glance, seems to be a

sufficient guide for the establishment of one’s filiation. However, after scrutinizing the
same, it shows that filiation under these laws takes for granted what filiation really is;
that it is the relation between a parent and his or her children. Moreover, that it is not
primarily a juridical, but a natural relation, in the sense that it precedes the law.

Coming from such, this paper aims to show strong criticism over the way in
which laws of filiation in the Philippines provide for juridical acceptance of filiation, the
fact that the content of filiation is purely formal and depended on the condescendence
of the father, and the provision whereby only the husband, in his lifetime, might contest
paternity of adulterine offspring, wilfully keeping up a false fatherhood.

Specifically, a perusal of such laws would point to two apparent loopholes:

The first is best illustrated by the case of Concepcion v. CA. In this case, the child,
Jose Gerardo, though fathered by another man, was considered as the legitimate child
of the spouses Mario Gopiao and Ma. Theresa Almonte. The Supreme Court reasoned
out that the status and filiation of a child cannot be compromised; that Article 164 of the
Family Code of the Philippines is clear. A child who is conceived or born during the
marriage of his parents is legitimate. Since the marriage of Mario and Ma. Theresa was
still subsisting and valid, the Court considered the child as having been born within
such valid marriage, thus, the legitimate child of the spouses.31

This decision of the Supreme Court which until now has not been overturned
creates a confusing situation where the child, who is naturally illegitimate, was raised to
the status of a legitimate child. Corollary with such status, he would get to enjoy the
rights reserved only for legitimate children. Lastly, it also creates an unfair situation
wherein Mario Gopiao, who is not the biological father of the child, was made
responsible for the latter. Here, based on the presumptions provided the law; he became

31 G.R. No. 123450; August 31, 2005

the father of a child who was a fruit of the illicit relationship of his wife with another
man.

The second dilemma would arise from the provision of the law that the
legitimate filiation of a child can only be impugned by the father. Such rule results to a
much prohibited situation wherein the biological father and mother, as well as the child
himself cannot impugn the latter’s legitimacy in order for his filiation with his real
father to be established.

This situation can also be illustrated in the same case, wherein the real father,
Gerardo Concepcion, was prohibited by the court to impugn the legitimacy of the child
based on the physical impossibility of sexual intercourse between Mario and Ma.
Theresa. The Court ruled that Gerardo has no standing in law to dispute the status of
the child. It is only Mario, in a proper case, who can contest the legitimacy of the child
born to his wife. Impugning the legitimacy of a child is a strictly personal right of the
husband or, in exceptional cases, his heirs. Since the marriage of Gerardo and Ma.
Theresa was void from the very beginning; he never became her husband and thus
never acquired any right to impugn the legitimacy of her child.32

With this, unless, Mario impugns the legitimacy of the child, they are left in a
situation where Gerardo, the biological father, is made a mere stranger to the child to
whom he naturally has every right to care for and support.

These instances would necessarily show the dichotomy between "natural" and
"legal" filiation and that such dichotomy has clouded the conceptualization of filiation
for a long time.

32 Id.