Absent wife, illegitimate son

Published by rudy Date posted on April 1, 2009

Dear PAO,

I have a four-year-old illegitimate son. I cannot marry his father because he is married to someone else. I met him in 2002, got pregnant in February 2004 and gave birth in October 2004. He acknowledged my son in his birth certificate.

To straighten things out, I advised the father of my child to file for an annulment of marriage in January 2004. Unfortunately, the case was dismissed due to his wife’s failure to appear. His wife has not been back since she left for abroad some 10 years ago.

The father of my son and his wife got married at the same time their first child was born in November 1992 in Makati, Metro Manila. Technically, is the marriage valid? All I know is that the father of my son merely secured a marriage contract from the Municipal Hall of Makati as a requirement from the hospital since he is in the military service.

The National Statistics Office has records of their marriage. How long will I have to wait to legitimize my son? I’m also in the government service and I still declare that I’m a single parent. Will my being a single parent affect my service in the government on moral grounds? I’m not living with the father of my child because I don’t want us to get into trouble.

L.E.Y.

Dear L.E.Y.,

You are asking whether the marriage between the father of your child and his wife is valid. If the requisites provided in Articles 2 and 3 of the Family Code of the Philippines are present, the marriage is valid. To wit:

1. Legal capacity of the contracting parties who must be a male and a female.

2. Consent freely given in the presence of the solemnizing officer.

3. Authority of the solemnizing officer.

4. A valid marriage license except in cases provided for in Chapter 2 of this Title.

5. A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age.

You mentioned that the date of marriage between the father of your son and his wife and the date of birth of their first child are the same. If a valid marriage ceremony took place between the parties as required by the above provision even if the wife delivered their first-born child on the same date, then the marriage is still valid. But if by giving birth to the child, they were prevented from appearing before the solemnizing officer and from personally declaring that they take each other as husband and wife, then the marriage is void ab initio because of the absence of one of the formal requisites of marriage. However, the parties cannot declare among themselves that their marriage is null and avoid. A petition for the declaration of nullity of the marriage must be filed with the court. Once declared null and void by the court, the parties may contract another marriage again.

Regarding the legitimation of your son, we regret to inform you that it cannot be done even if you and his father subsequently marry each other upon the declaration of nullity of your partner’s marriage. The fact of his acknowledgment in your son’s birth certificate has no bearing.

Under Article 177 of the Family Code, 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. At the time you conceived your child, his father was under a subsisting marriage. Thus, he was not capacitated to marry you at the time of your son’s birth.

But for purposes of discussion, assuming that you and the father of your child are subsequently married, your remedy would be to adopt your son to elevate him to the status of a legitimate child.

Lastly, being a single parent is not per se violative of the Civil Service Law. What is prohibited is the involvement in notoriously disgraceful or immoral conduct . . . from subordinate employees as provided in Section 33 (Administrative Jurisdiction for Disciplining Officers and Employees) of Republic Act No. 2260.

We wish to remind you that this opinion is solely based on your narration of facts and our appreciation of the same. The opinion may vary if other facts are added or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net or via text message (key in: Times dearpao <YOUR QUESTION> and send to 2299).

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