MAY A MARRIED woman claim that her child is not her husband’s?
She can tell her friends that, of course, but can she do it legally? Can the biological father (not her husband) acknowledge paternity through his signature on the birth certificate?
And if the biological father does indeed acknowledge the child, will his signature be legally binding as against the whole world?
For example, will the child lose hereditary rights to the woman’s husband?
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This is the debacle of some Filipinas who either work abroad and temporarily leave their families here or are left here to tend to the family home while their husbands seek pasture elsewhere.
In one case, the Supreme Court narrates that a Filipina was a married woman when she left the Philippines to work in Qatar sometime in 2005. After three years abroad, the woman discovered that her husband was maintaining an illicit relationship with another woman back here in the Philippines.
The woman decided to separate from her husband. This is separation “in fact,” meaning that no petition to annul the marriage was ever filed in court. The parties merely decided to lead separate lives.
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After the separation, the woman got into an intimate relationship with a co-employee abroad. She later got pregnant and gave birth to a baby boy here in the Philippines.
The boy’s birth certificate showed that his mother’s “lover” acknowledged him as his own. The boy thus carried the surname of his real dad even when his mother was still married to another man.
The mother likely realized that this was a decision made in haste, not realizing the social or possibly legal backlash against a document that effectively admitted the “adulterous” circumstances surrounding the boy’s conception and birth.
She decided to file a petition in court to correct the entry and revert to her maiden name as the boy’s surname.
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The petition faced many problems. The Family Code provides that “children conceived or born during the marriage of the parents are legitimate.”
Since the woman in this case was still married, the birth certificate must reflect the name of her estranged husband as the boy’s father.
The Family Code also states that “the child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.”
In short, no Filipina is at liberty to provide entries in the certificate of live birth if doing so will render her child illegitimate during the subsistence of a marriage.
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Worse, it is only the husband or his heirs who may file a case in court to attack the legitimacy of a child that is allegedly his.
Even the child cannot file case in court to prove his filiation to the alleged father. The law does not allow him to do so because he will in effect be free to choose his own filiation.
The law supposedly protects innocent children from the bad social effects of being illegitimate.
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We have a weird situation where the child bears the surname of his real father but enjoys legitimacy as the child of his mother’s husband.
The mother is powerless to do anything even if there was physical impossibility of sexual union with the husband. Modern methods like DNA testing can also prove or disprove filiation.
Since getting an annulment is very difficult, and divorce is not yet legal here, there are cases of Filipinas abroad who bear children that carry foreigner genes and therefore could not have been sired by the Filipino husband.
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Why do we need Congress when there are “too many laws” already?
Truth is, there cannot be enough laws. This is one example of how the law must adjust to the changing times. We must be able to grant remedies to mothers who continue to face a blank wall when confronted with the harshness of the law./PN
