CHAPTER 2: PROOF OF FILIATION (ARTS 172- 174)

Article 172 - The filiation of legitimate children is 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. (265a, 266a,
267a)

Provides us the proof of filiation of a legitimate child. The evidence here are
classified into two: Primary and Secondary.

A. Primary Proof of Filiation

1. Record of birth appearing in the civil register or a final judgement.

NOTE: Now the local civil registrar is very strict in entering in the birth certificate of the
child, entries are correct, otherwise, unlike before when the woman gives birth she will
state whatever she likes to be entered in the record of birth. Right now, to ensure that
the data there stated in the record of birth are accurate, then these documents that you
will have to submit will be required in the hospital to immediately submit these
information so that what will be entered in the record of birth will be accurate.

In the recent decision of the Court if the child is legitimate, it is not necessary for the
parent to …. In the birth certificate because that presumption that a child is conceived
or born during the valid marriage is legitimate. Record of birth is the PRIMARY proof
that you are a legitimate child.

EXAMPLE: If you are claiming to have inherit a title from your parent then you can
produce your birth certificate, your record of birth. Because that is your basis to prove
your filiation or a judgment from the Court. If there was a litigation on the matter of your
status as a legitimate child and there is already a judgment that is rendered by the
Court, that is the proof of your being as a legitimate child.
2. Second is an admission of legitimate filiation in a public document or in a private
handwritten instrument and signed by the parent concerned.

EXAMPLE: The decedent prior to his death, has executed a last will and testament, and
in that testament, he has stated that you are his legitimate child. So that is a public
document that can be presented as proof that you are a legitimate child.

Public document - notarized/acknowledged by a notary public

It could also be a private handwritten instrument;

EXAMPLE: You have a love letter sent by the man to the wife and mentions there the
name of the legitimate child. Here, it has to bare the signature of the parent concerned,
so if it’s just written or encoded without the signature of the parent then that cannot be
considered as a primary proof of filiation.

So those are the two primary proofs of filiation.

We know go to secondary proof, in the absence of any of the said primary proof of
filiation, then you can now present the secondary. That’s why it says there “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.”:

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

EXAMPLE: You have been introduced in the community to be the legitimate child, your
parent whom you are claiming that you are their legitimate child has been the paying
for you legitimation. Or in the different gatherings you are always being introduced as a
legitimate child. So that is an open continuous possession of the status of a legitimate
child.

NOTE: When you say open and continuous, it does not only refer to a few instances, it
has to be several instances that you are being considered as a legitimate child.

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

You will be studying evidence under Rules of Court, so in addition to other evidences,
like testimonial evidence can also be admitted, persons who are of dealings with the
family, but this time in addition with other evidences, you can present the Baptismal
Certificate. However, if the parent has no participation at all in that Baptismal
Certificate then it cannot be an evidence of filiation. It can only be considered as a
proof that the sacrament of Baptism has been administered in the child. Because you
can put the name of any other person there in the. Baptismal Certificate, so if the
parent concerned had no participation at all, providing that information, then that
cannot be considered as a proof of filiation.

NOTE: It is now important that if your filiation to a parent has been disputed, then you
will have to present evidence. And those are the evidences that are acceptable to
prove your filiation.

PERIOD OF FILING RECOGNITION AS LEGITIMATE CHILD (ART 173)

QUESTION: Now, within what period of time should a person who is claiming to be a
legitimate child, should file the action for recognition as a legitimate child? — When we
go to the illegitimate children, we will have to compare the difference between the
provisions on how to prove filiation of an illegitimate child in relation to the parent
filiation as against the filiation of a legitimate child to the parent. And also, within what
period of time a person can file an action for recognition as a legitimate child.

If you are a legitimate child, the period within which you can file the action to claim you
status as a legitimate child — it is during your entire lifetime.

Art. 173. 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.

So if you are a legitimate child of a particular person, you have your entire lifetime to
file the action to claim your being a legitimate child. However, if you die when you are
still a minor or in a state of insanity, then you transmit your right to file the action to
claim your status as a legitimate child to your heirs, this time the period is within 5
years to institute the action. Five years from the time of death of the legitimate child, if
that is transmitted to the heirs.
So in other terms, the heirs cannot file the action for as long as the child himself is still
alive. It is the prerogative of the legitimate child to file the action in Court during his
entire lifetime.
RIGHTS OF A LEGITIMATE CHILD (ART. 174)
QUESTION: What are therefore the rights of a legitimate child?
The reason why a person could want to prove his being a legitimate child is because of
certain rights, arising from one’s status as a legitimate child. What are the rights that
you would be entitled to have if you are a legitimate child? —

Art. 174. Legitimate children shall have the right:

(1) To bear the surnames of the father and the mother, in conformity with the provisions
of the Civil Code on Surnames;
(3) 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; and
(4) To be entitled to the legitimate and other successional rights granted to them by
the Civil Code. (264a)

Chapter on Support - who are the persons who entitled to support of each other. So if
you are a legitimate child, when you have a need to be supportive, just take note that
our law that enumerates the persons who are obliged to support each other. When it
says “to support each other”, it is not one way, it is reciprocal.

EXAMPLE: Like parents and child, they are entitled to support each other, which means
to say, if it is the parents who needs to be supported and the child has the capacity to
give support, then the child has the obligation to support the parents. In a like manner,
that if the child needs to be supported, even if the child is already of age, if there is a
need for him to be supported and the parents still have the capacity to support. Then
the parents are obliged to give support. Because the provision on support is based on
one’s need, the need of the recipient and the capacity of the other.

So we have on the chapter of support the enumeration of persons who are obliged to
support each other, and one of them is “parent and children are required to support
each other.”

Now if you are a legitimate child, you are not only entitled to get the support from your
parents. Aside from your parents, it says, you are also entitled to get support from your
ascendants. So if your parents cannot give you support but your grandparents have
the capacity to give support, then you can demand support from your grandparents.
Even great grandparents because the law says ascendants. It does not say
grandparents only, when you say ascendants, that covers grandparents and great
grandparents.
Also, from your brothers and sisters. So brothers and sisters are also obliged to give
support to each other, subject to the rules under the Family Code.

(3) To be entitled to the legitimate and other successional rights granted to them
by the Civil Code. (264a)

This is the reason why, you would really want to prove that you are a legitimate child.
Because of these rights that your are entited to have, the moment you are able to prove
your filiation as a legitimate child.

CHAPTER 3: ILLEGITIMATE CHILDREN (ARTS 175-176)

Who are those illegitimate child? — Those who are conceived and born outside the
valid marriage.

As far as proving filiation is concerned, more problems or cases arise with respect to
illegitimate children. Not mush with the respect of the legitimate children. More
problems or cases are with respect to the illegitimate children, especially when the
father does not recognize the illegitimate child.

As far as illegitimate children are concerned, how would an illegitimate child prove his
filiation with his parents, how would he prove that he or she is an illegitimate child? —
Our law provides that the proof of filiation of an illegitimate child are the same proof
that we have already mentioned with respect to legitimate children.

What are these again? — proof of birth or judgement, public document or private
written document signed by the parents as primary proof, in the absence we have the
secondary proof, open and continuous possession of the status of a legitimate child or
illegitimate child as the case may be, and other proof as provided by the Rules of
Court.

DIFFERENCE BETWEEN ILLEGITIMATE AND LEGITIMATE, PROOF (ART. 175)

Where does the difference lie if we have the same kinds of proof, both for legitimate
and illegitimate. Is there any difference? — Article 175 says…

Art. 175. Illegitimate children may establish their illegitimate filiation in the same way
and on the same evidence as legitimate children. The action must be brought within
the same period specified in Article 173, 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.
The difference lies in the 2nd paragraph, it says “The action must be brought within the
same period specified in Article 173, 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.”

Going back to the legitimate, as far as the legitimate child run are concerned, within
what period of time can a legitimate child file an action to be recognized as a legitimate
child? — DURING HIS ENTIRE LIFETIME, regardless of the proof whether it is primary
or secondary. Also if he dies while still a minor in the state of insanity, it is transmitted
to the heirs to have the right to file an action within 5 years.

But if you are an illegitimate child, If your proof is primary (either of the first two; record
of birth/judgment or is a public document/private document of the parent) you have
your entire lifetime also to file an action. BUT if your evidence is secondary (open and
continuous possession of the status of a legitimate child and any other evidence
allowed by the Rules of Court) then you can file the action only while your alleged
parent is still alive.

NOTE: If you are an illegitimate child, and your proof is the secondary, you make sure
that you file your action, while your parent is still alive. Unless again, your proof is
primary.

NOTE: As far as legitimate children are concerned, regardless of the kind of proof,
whether primary or secondary, the action can be filed within the entire lifetime of the
legitimate child.

DIFFERENCE: period wherein one can file an action for recognition

CASE IN POINT: Charles Gotargo(???) vs. Buli (???) — Application of the

principles

RIGHTS OF THE ILLEGITIMATE CHILDREN (ART. 176)

What are the right of the illegitimate children? — We have discussed the rights of the
legitimate, the right to use the surname of the mother and father, the right to be
supported. By the parents, ascendants and the brothers and sisters, and the right to a
legitimate and other successional rights. What if you are an illegitimate child? What will
be your rights? — Article 176 of the Family Code
Art. 176. Illegitimate children shall use the surname and shall be under the parental
authority of their mother, and shall be entitled to support in conformity with this Code.
The legitime of each illegitimate child shall consist of one-half of the legitime of a
legitimate child. Except for this modification, all other provisions in the Civil
Code governing successional rights shall remain in force. (287a)

However, the illegitimate child may use the surname of his or her father if their filiation
has been expressly recognized by the father to the record of birth appearing in the civil
register or when an admission in a public document… Prior to the original Family Code.

We go back to the original Family Code prior to the amendment. The original Family
Code, simply says that an illegitimate child shall use the surname of the mother and
shall be under the parental authority of the father. That was the original Family Code, so
in other words, based on the original provision, even if the illegitimate child was
recognized by the father, the illegitimate child was not allowed to use the surname of
the father. That is why it resulted to one case where the father recognized his
illegitimate child but the local civil registrar did not allow the amendment to the record
of the birth of the child, because the father wanted his illegitimate child, whom he has
recognized, to use his surname. And the local civil registrar simply pointed out this
provision which says illegitimate children shall use the surname of the mother. With
statutory construction, the word “shall” is mandatory. And the SC sustained the
argument of the local civil registrar.

That prompted the amendment. Which was introduced by way of RA 9225. Under the
amendment, if the father recognizes the illegitimate child as his child, that child MAY
use the surname of the father.

NOTE: The wording of the amendment says “may use”, the surname of the father if
their filiation has been expressly recognized by the father through the record of birth
appearing in the Civil Register or when an admission in a public document or private
handwritten instrument is made by the father. Provided the father has the right to
institute an action before regular Courts, to prove non-filiation during his lifetime. The
legitime of each illegitimate child shall consist of 1/2 of the legitime of the legitimate
child.

Under the present law, as amended, an illegitimate child MAY use the surname of the
father if that child has been recognized by the father. In what manner will the
recognition be? — 1) In the record of birth, he can already sign the birth certificate of
the child, that he is the father of the child. 2) In the private handwritten instruments
signed by the father, but note that when it says “may” it is optional. That is not
mandatory that the illegitimate child should use the surname of the father.
 In fact there was a case that really reached the SC, to nullify the implementing rules
and regulation that was issued by the Civil Registrar General, when the IRR noted that
it is mandatory which will be applicable.

SUCCESSIONAL RIGHT OF AN ILLEGITIMATE CHILD

What is the successional right of an illegitimate child? — An illegitimate child is only
entitled to a share equal to 1/2 of the share of a legitimate child.

Those are his or her rights.

PARENTAL AUTHORITY OVER THE ILLEGITIMATE CHILD

Regarding parental authority. The illegitimate child shall be under the parental authority
of the mother. That is why in cases where there is a dispute as to who should be given
the custody of the illegitimate child, whether if the father recognizes the child, the Court
will always be equal, the Court will grant the custody of the child to the mother.
Because the law provides that parental authority over the illegitimate children shall be
exercised by the mother as a general rule.

GENERAL RULE: Parental authority is granted to the mother as the law provides.

However in cases where, if we are going to relate this with another provision of the
Family Code. If the parents of the illegitimate child are living together, then parental
authority can be exercised jointly by the father and the mother. Because as far as
legitimate children are concerned, when we go to the Chapter of Parental Authority, as
far as legitimate children are concerned, Parental Authority will be exercised jointly by
the father and mother for the legitimate children, but for the illegitimate children, as a
rule, it is the mother who exercises parental authority.

Why is that so? — Because again, maternity is certain, specially with respect to the
illegitimate child.

CASE IN POINT: GRANDE vs ANTIONIO

When the proof is compulsory for an acknowledged illegitimate child to use the
surname of the father, because deals with a case where the father recognized his
illegitimate children, and after the recognition, he wanted the illegitimate children to use
his surname. His basis was the amendment to the Family Code, which says now that
illegitimate children may use the surname of the father and also the IRR issues by the
Civil Registrar General where what was stated in the IRR, is that the illegitimate child
recognized, shall use the surname of the father.

There was then a conflict between what is stated in the law from what is stated in the
IRR. In statutory construction, if there is a conflict between the law and the IRR, which
will prevail? — The law, and since the laws says “may”, then it is not mandatory.

The SC said that Article 176 of the Family Code, as amended, gives illegitimate children
the right to decide if they want to use the surname of their father of not. It is not the
father or the mother who is granted by this law, the right to dictate a surname of their
illegitimate children. The use of the word “may” in the provision clearly shows that an
acknowledged illegitimate child, is under no compulsion to use the surname of his
illegitimate father. The the SC emphasized once again, that the yardstick by which
policies affecting children that to be assure is their best interest. The rule regarding the
use of a child’s surname is second only to the rule requiring that the child be placed in
the best possible situation, considering his circumstances. So because of thistle SC
declared null and void the provisions of the IRR of RA 9225 of the same office of the
Civil Registrar General, Administrative Order No. 1, in so far as it provides the
mandatory use by the illegitimate children of their father’s surname, upon the father’s
recognition of paternity. The use of the word “shall” in the IRR is of no moment, the
clear and unambiguous and unequivocal use of the word “may” in Article 176.
Rendering the use of the father’s surname by the illegitimate children is discretionary.
The law says “may” the IRR says “shall” and being inconsistent, what will prevail is the
“may”

Illegitimate children are given the choice on the surname by which they will be using.

CHAPTER 4: LEGITIMATED CHILDREN (ARTS 177-182)

Art. 177. 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. (269a)

Art. 178. Legitimation shall take place by a subsequent valid marriage between
parents. The annulment of a voidable marriage shall not affect the legitimation. (270a)
Art. 179. Legitimated children shall enjoy the same rights as legitimate children. (272a)
Art. 180. The effects of legitimation shall retroact to the time of the child's birth. (273a)
Art. 181. The legitimation of children who died before the celebration of the marriage
shall benefit their descendants. (274)
Art. 182. Legitimation may be impugned only by those who are prejudiced in their
rights, within five years from the time their cause of action accrues. (275a)

QUESTION: When could this happen that we will have legitimated children? — This
refers to a situation where a child is conceived and born outside the marriage. So a
legitimate child outside a marriage.

QUESTION: When can an illegitimate child become a legitimated child? — If at the time
of the conception of the child, the parents had no legal impediment to marry each
other.

EXAMPLE: X was single and Y was also single, they h=were living together as husband
and wife without the benefit of marriage. A child was born to them while they were still
single. At the time of the conception of the child the parents are free to marry each
other. When the parents, subsequently, gets married, the subsequent marriage of the
parents will result to the legitimation of the child. And so the child is called a
legitimated child.

NOTE: The rights of a legitimated child are the same as a legitimate child.

BUT NOTE, the condition is for an illegitimate child to become legitimated by the
subsequent marriage of the parents, at the time when the child was conceived, the
parents should have NO LEGAL IMPEDIMENT TO MARRY EACH OTHER.

QUESTION, OLD FC: What happened then in the original provision of the Family Code?
— If you apply that rule, what happens if at the time when two persons were living
together as husband and wife. One of them was below 18, and while the woman was
below 18, they could not get married because otherwise the marriage is void. And so,
they were just living together as husband and wife and a child was conceived and born
outside of the marriage. When they were already of a manageable age, they contracted
marriage. Under the old law the child there who was conceived while the mother was
below 18, there was a legal impediment, and so the subsequent marriage did not result
to the legitimation of the child. Because the condition was at the time of the conception
of the child, the parents should have no legal impediment to marry each other.

EXPLANATION, AMENDMENT: What happened was if you had a child who was
conceived while the mother for example was below 18, the subsequent marriage of the
parents will not result to the legitimation of the child. And when a child is born now and
they are married, the child is legitimate. That child born during the marriage and the
child born prior to the marriage, they are full-blood brothers and sisters but one is
illegitimate and the other is legitimate. And so to solve that absurd situation, the law
now placed an exception, as amended by RA 9858.

It is now that the requirement of no legal impediment has now an exception. It says
that … not disqualified by any impediment to marry each other or when disqualified
only because either or both of them were below 18 years of age. So under the present
law, as amended, if the impediment is age, the child can still be legitimated by the
subsequent marriage. That is the only exceptions regards to legitimated children.
RETROACTIVE EFFECT OF LEGITIMATION
The effects of legitimation retroacts with the time of the birth of the child, not from the
time when that marriage was solemnized. It retroacts with the time, in other words, if
the parents subsequently get married, it is as if the child is already legitimated when he
was born.

So can a child, who died prior to the marriage of the parents, be considered as a
legitimated child? — YES, because it retroacts with the time of his birth. So if the child
died before his parents got married, it would still benefit his heirs, because this is what
we consider as the heirs of a legitimated child. It retroacts to the time of birth and it can
be transmitted to his heirs, if he died prior to the the marriage of his parents.

Who can question the legitimation of a child? — Persons who are prejudiced by the
legitimation may question the legitimation of the child.