Article 166 of the Family Code: Grounds to impugn legitimacy
Status: In force
What does Article 166 say?
Legitimacy of a child may be impugned only on the following grounds:
(1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of:
(a) the physical incapacity of the husband to have sexual intercourse with his wife;
(b) the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or
(c) serious illness of the husband, which absolutely prevented sexual intercourse;
(2) That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the instance provided in the second paragraph of Article 164; or
(3) That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence.
What does it mean in plain language?
A child conceived or born during a marriage is legitimate. Article 166 of the Family Code lists the only grounds on which that legitimacy can be challenged in court. Only the husband may bring the case, or his heirs in a few situations, and only within the short periods in Article 170. After that, the child's status becomes fixed.
To "impugn legitimacy" means to ask a court to declare that a child born to a married woman is not her husband's child.
How does it work in real life?
Zeny and Arman: the mother's statement
Zeny gives birth while married to Arman. During a quarrel she says another man is the father. The child is still legitimate (Article 167). Only Arman, or his heirs in the Article 171 cases, may impugn, and only on an Article 166 ground.
Arman: the one-year period
Arman lives in the same city where the child was born and registered. He must file within one year from knowing of the birth or its recording. If he lived abroad, he would have three years. After the period, the child's status becomes fixed.
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?
- Who is legitimate: Article 164. How filiation is proved: Article 172.
- For children of a marriage later annulled or declared void, see are children legitimate after annulment?
- A man who is not the husband cannot use Article 166. In Concepcion (2005), a man whose own marriage to the mother was void because she was still married to another never acquired the right to impugn her child's legitimacy.
- A child born outside marriage may use the father's surname when the father has recognized the child in the record of birth or in a written admission. In that case, under Article 176, the father has the right to bring an action before the regular courts during his lifetime to prove non-filiation.
- For a question-and-answer guide, see can a husband deny he is the father of his wife's child?
What does Article 166 say?
Legitimacy of a child may be impugned only on the following grounds: (1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of: (a) the physical incapacity of the husband to have sexual intercourse with his wife; (b) the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or (c) serious illness of the husband, which absolutely prevented sexual intercourse;
(2) That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the instance provided in the second paragraph of Article 164; or
(3) That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence.
What do the three grounds mean?
- Physical impossibility. Count back 300 days from the birth. In the first 120 of those days, intercourse between the husband and wife must have been physically impossible, because of the husband's physical incapacity, because they lived apart in a way that made intercourse impossible, or because of a serious illness of the husband. In Concepcion v. Court of Appeals (2005), the Court said it must be shown beyond reasonable doubt that there was no access that could have enabled the husband to father the child.
- Biological or scientific reasons. It is proved that the child could not be the husband's. This ground does not apply to a child conceived by artificial insemination that both spouses authorized or ratified in writing before the birth, under the second paragraph of Article 164.
- Artificial insemination. The written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence.
Does the mother's word change the child's status?
No. Article 167 says the child is considered legitimate even if the mother declared against its legitimacy or was sentenced as an adulteress. In Concepcion v. Court of Appeals (2005), the Supreme Court said "the status and filiation of a child cannot be compromised" and that a minor cannot be deprived of legitimate status on the bare declaration of the mother or the supposed father.
Who may file, and by when?
Who. The Supreme Court has said impugning legitimacy is a strictly personal right of the husband or, in exceptional cases, his heirs (Liyao, Jr. v. Tanhoti-Liyao, 2002, decided under the earlier Civil Code rules with the same principle; and Concepcion, 2005). The child cannot choose a different father: if the husband does not impugn, the child's status is fixed. Under Article 171, the heirs may impugn only if the husband died before the period expired, died after filing without withdrawing the case, or if the child was born after his death.
When. Article 170 sets the periods:
The action to impugn the legitimacy of the child shall be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded.
If the husband or, in his default, all of his heirs do not reside at the place of birth as defined in the first paragraph or where it was recorded, the period shall be two years if they should reside in the Philippines; and three years if abroad. If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, whichever is earlier.
In Aguilar v. Siasat (2015), the Court repeated that once these periods expire, the action is no longer legally feasible and the status conferred by the presumption "becomes fixed and unassailable".
Frequently asked questions
Can a husband deny that a child born to his wife is his?
Only by impugning the child's legitimacy in court, on the grounds in Article 166 and within the period in Article 170. A child conceived or born during the marriage is legitimate under Article 164.
What are the grounds to impugn legitimacy?
Three: physical impossibility of intercourse in the first 120 of the 300 days before the birth, because of the husband's incapacity, separate living or serious illness; proof that for biological or other scientific reasons the child could not be the husband's; and, for artificial insemination, consent obtained through mistake, fraud, violence, intimidation or undue influence.
Can the mother declare that her husband is not the father?
Her declaration does not change the child's status. Article 167 says the child is considered legitimate even if the mother declared against its legitimacy. In Concepcion v. Court of Appeals (2005), the Supreme Court said a minor cannot be deprived of legitimate status on the bare declaration of the mother.
Who can file the case?
The husband. His heirs may file only in the three cases in Article 171. The Supreme Court has called impugning legitimacy a strictly personal right of the husband or, in exceptional cases, his heirs.
How long does the husband have to file?
Under Article 170, one year from knowledge of the birth or its recording if he lives in the city or municipality where the birth took place or was recorded; two years if he lives elsewhere in the Philippines; three years if abroad. If the birth was concealed, the period runs from discovery.
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
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