Dear Atty. Angela,

My husband and I have been separated for three years but we are not yet annulled. We both have our own partners and are living peacefully apart. Recently, my boyfriend and I found out that I am pregnant with our baby. My concern is that when I give birth, is it possible that I will name my boyfriend as the father of my child despite still being married to my husband?

Evelyn

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Dear Evelyn,

As you are still currently married to your husband, despite being already in a different relationship, the child will be considered as a legitimate child of your husband — and not as a child of your boyfriend. Your husband is given the remedy to impugn the legitimacy of the child within the time prescribed by law.

Under Article 170 of the Family Code:

“ARTICLE 170. 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.”

As the Supreme Court ruled in Geronimo v. Santos, G.R. No. 197099 (2015), “upon the expiration of the periods provided in Article 170, the action to impugn the legitimacy of a child can no longer be brought. The status conferred by the presumption, therefore, becomes fixed, and can no longer be questioned. The obvious intention of the law is to prevent the status of a child born in wedlock from being in a state of uncertainty for a long time. It also aims to force early action to settle any doubt as to the paternity of such child, so that the evidence material to the matter, which must necessarily be facts occurring during the period of the conception of the child, may still be easily available.”

Pursuant to the foregoing, your husband is given the opportunity to impugn the legitimacy of the unborn child within the prescribed period fixed in the law. Thus, your boyfriend does not have the right to claim paternity over the child. It is incumbent that the process of impugning the legitimacy of the child be first sought, if not, your child will be acknowledged by law as the legitimate child of your husband.

Atty. Angela Antonio