Article 164 of the Family Code: Who are legitimate children
Status: In force
What does Article 164 say?
Children conceived or born during the marriage of the parents are legitimate.
Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child.
What does it mean in plain language?
Under Article 164 of the Family Code, a child is legitimate if he or she was conceived or born during the marriage of the parents. Only one of the two is needed. A child conceived through artificial insemination is also legitimate, but only if both husband and wife agreed to it in a signed written document made before the birth.
"Conceived" means the time the pregnancy began. "Born" means the date of birth. So a baby conceived before the wedding and born after it is legitimate. A baby conceived during the marriage and born after the marriage ends is legitimate too, because the conception happened during the marriage.
The rule assumes a valid marriage. For children conceived and born outside a valid marriage, Article 165 gives the opposite rule:
Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this Code.
One rule "otherwise provided" is Article 54: children conceived or born before an annulment, or before a nullity judgment under Article 36, becomes final are legitimate.
How does it work in real life?
Grace and Noel: born after the wedding
Grace became pregnant in January. She and Noel married in March, and the baby was born in September. The baby was born during the marriage, so the child is legitimate under Article 164, even though the pregnancy began before the wedding.
Lorna: a child born after her husband died
Lorna's husband, Ben, died in an accident while she was three months pregnant. The baby was conceived during the marriage, so the child is legitimate under Article 164, even though the birth came after Ben's death.
Mitch and Paolo: treatment with a donor
Mitch and her husband, Paolo, used donor sperm in a fertility treatment. Before the birth, both signed a written document authorizing the insemination. Under the second paragraph of Article 164, the child is their legitimate child. The document must be recorded in the civil registry with the birth certificate.
These are made-up examples to show how the rule works. They are not advice for any real case.
What does this mean in practice?
- The child's birth is recorded by the local civil registrar, and the PSA issues copies. See the site's guide to getting a PSA birth certificate online.
- A mother's statement alone cannot make a child of the marriage illegitimate (Article 167).
- Only the grounds in Article 166, filed within the periods in Article 170, can be used to challenge legitimacy.
- A child born before the parents married may be legitimated by their later marriage, in the cases set by Article 177 and Article 178.
- For children of an annulled marriage, see are children legitimate after an annulment?
What does Article 164 say exactly?
The article has two paragraphs. The first is short:
Children conceived or born during the marriage of the parents are legitimate.
The second paragraph covers artificial insemination. In plain words:
- It applies when the wife was inseminated with the sperm of the husband, of a donor, or both.
- The condition is that both husband and wife authorized or ratified the insemination in a written instrument signed by them before the birth of the child.
- The article adds that the instrument shall be recorded in the civil registry together with the child's birth certificate.
When the condition is met, the child is a legitimate child "of the husband and his wife", even if the sperm came from a donor.
What rights does a legitimate child have?
Article 174 lists them. A legitimate child has the right to bear the surnames of the father and the mother, to receive support from their parents, their ascendants and, in proper cases, their brothers and sisters, and to the inheritance rights the Civil Code gives legitimate children. Article 195 names who must support whom.
An illegitimate child has different rules: the mother's surname (the child may use the father's surname if the father recognized the child), the mother's parental authority, and a legitime of one-half of a legitimate child's. See Article 176.
Can the legitimacy of a child be challenged?
Yes, but only in narrow ways. Article 167 protects the child:
The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.
Article 166 lists the only grounds to impugn (challenge) legitimacy. In short: it was physically impossible for the husband to have sexual intercourse with his wife in the first 120 days of the 300 days before the birth, because of his physical incapacity, because the spouses lived apart in a way that made intercourse impossible, or because of a serious illness of the husband; biological or other scientific reasons show the child could not be the husband's (except in the insemination case of Article 164); or, for insemination, the written consent was obtained through mistake, fraud, violence, intimidation or undue influence.
Article 170 sets short deadlines. The case must be filed within one year from knowing of the birth or its recording, if the husband or his heirs live in the city or municipality where the birth took place or was recorded. It is two years if they live elsewhere in the Philippines, and three years if they live abroad. If the birth was concealed from or unknown to the husband or his heirs, the period counts from the discovery or knowledge of the birth or of its registration, whichever is earlier. The husband's heirs can bring the action only in the cases listed in Article 171.
Frequently asked questions
What is a legitimate child under the Family Code?
A child conceived or born during the marriage of the parents. Article 164 says either one is enough: the child can be conceived before the wedding and born after it, or conceived during the marriage and born after it ends.
Is a baby born a few months after the wedding legitimate?
Yes. Article 164 covers children born during the marriage, even if they were conceived before the wedding.
Is a child of a married woman legitimate even if she says the husband is not the father?
Article 167 says the child is still considered legitimate even if the mother declares against its legitimacy. Legitimacy can be challenged only on the grounds in Article 166, within the periods in Article 170.
Are children born through artificial insemination legitimate?
Yes, under Article 164, if the husband and wife both authorized or ratified the insemination in a written instrument they signed before the child's birth. This applies whether the sperm came from the husband, a donor, or both. The instrument is recorded in the civil registry with the birth certificate.
What is the opposite of a legitimate child?
An illegitimate child. Article 165 says children conceived and born outside a valid marriage are illegitimate, unless the Family Code provides otherwise. Article 176 sets their rights.
Can an illegitimate child become legitimate?
Yes, in some cases. Under Articles 177 and 178, the child may be legitimated if the parents later marry each other in a valid marriage and, when the child was conceived, nothing barred them from marrying each other except being under 18.
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
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