Article 165 of the Family Code: Illegitimate children
Status: In force
What does Article 165 say?
Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this Code.
What does it mean in plain language?
Article 165 of the Family Code says that children conceived and born outside a valid marriage are illegitimate, unless the Code provides otherwise. "Illegitimate" is the legal term for the child's status; it describes how the parents' relationship stood, not the child. The child's rights, such as surname, parental authority, support and a share in the inheritance, are set mainly in Article 176.
How does it work in real life?
Jenny: born to parents who never married
Jenny's parents lived together but never married. She was conceived and born outside a valid marriage, so she is illegitimate under Article 165. She uses her mother's surname unless her father recognized her in one of the ways in Article 176.
Ramil: born before the annulment became final
Ramil was born while his parents' marriage was still in force. Years later, a court annulled it. Under Article 54, Ramil is legitimate, because he was born before the judgment became final and executory.
Kim: legitimated
Kim was born when her parents, both single and over eighteen, were not yet married. They married when she was three. Under Articles 177 and 178, their valid marriage legitimated her.
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 birth record usually shows the child's status and surname; see the guide to the PSA birth certificate.
- For using the father's surname, see can an illegitimate child use the father's surname?
- For custody, see who has custody of an illegitimate child?
- For children of annulled marriages, see are children legitimate after annulment?
- Shares in an inheritance are in the table of legitime shares.
- See also the comparison legitimate vs illegitimate child.
What does Article 165 say?
Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this Code.
What does "conceived and born outside a valid marriage" mean?
Both conception and birth must fall outside a valid marriage. Article 164 says children conceived or born during the marriage of the parents are legitimate. So a child conceived before the wedding but born after it, or conceived during the marriage but born after it ended, is legitimate under Article 164.
What exceptions does the Code provide?
"Unless otherwise provided in this Code" points to cases where a child is legitimate even though the marriage was not valid or ended:
- [Void marriage](/law/glossary/void-marriage) under Article 36, and annulled marriages. Article 54 says children conceived or born before the judgment of annulment, or of absolute nullity under Article 36, has become final and executory are legitimate. Children of a subsequent marriage under Article 53 are also legitimate.
- Second marriage after a [declaration of presumptive death](/law/glossary/presumptive-death). Article 43(1) says the children of the subsequent marriage conceived before its termination are legitimate.
- [Legitimation](/law/glossary/legitimation). Under Article 177, as amended by Republic Act No. 9858, and Article 178, a child of parents who were not disqualified to marry each other when the child was conceived, or were disqualified only because either or both were below eighteen, becomes legitimated by the parents' subsequent valid marriage.
What are the rights of an illegitimate child?
Article 176, as amended by Republic Act No. 9255, sets them:
| Right | What Article 176 says |
|---|---|
| Surname | The mother's surname; the father's surname may be used if he expressly recognized the child through the record of birth in the civil register, or by an admission in a public document or private handwritten instrument |
| Parental authority | Under the parental authority of the mother |
| Support | Entitled to support in conformity with the Code |
| Legitime | One-half of the legitime of a legitimate child |
The same article gives the father the right to bring an action before the regular courts to prove non-filiation during his lifetime.
How is the status proved?
Article 175 says illegitimate children may establish their filiation in the same way and on the same evidence as legitimate children. When the claim rests only on open and continuous possession of status or other means, the action must be brought during the lifetime of the alleged parent.
Frequently asked questions
Who is an illegitimate child under the Family Code?
Article 165 says children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in the Family Code.
Are children of an annulled or void marriage illegitimate?
Not always. Article 54 says children conceived or born before the judgment of annulment, or of absolute nullity under Article 36, has become final and executory are legitimate. Children of a subsequent marriage under Article 53 are also legitimate.
What surname does an illegitimate child use?
Article 176, as amended by Republic Act No. 9255, says illegitimate children use the surname of their mother, but may use the surname of their father if he expressly recognized them through the record of birth or by an admission in a public document or private handwritten instrument.
How much does an illegitimate child inherit?
Article 176 says the legitime of each illegitimate child is one-half of the legitime of a legitimate child.
Can an illegitimate child become legitimate?
In some cases. Under Articles 177 and 178, a child of parents who could have married each other when the child was conceived, or could not only because either or both were below eighteen, is legitimated by the parents' subsequent valid marriage.
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
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