G.R. No. 123450, 31 August 2005


Gerardo Concepcion, the petitioner, and Ma. Theresa Almonte, private respondent, was married in December 1989 and begotten a child named Jose Gerardo in December 1990. The husband filed on December 1991, a petition to have his marriage annulled on the ground of bigamy since the wife married a certain Mario Gopiao sometime in December 1980, whom according to the husband was still alive and living in Loyola Heights, QC. Trial court ruled that the son was an illegitimate child and the custody was awarded to the wife while Gerardo was granted visitation rights. Theresa argued that there was nothing in the law granting “visitation rights in favor of the putative father of an illegitimate child”. She further wanted to have the surname of the son changed from “Concepcion to Almonte”, her maiden name, since an illegitimate child should use his mother’s surname. After the requested oral argument, trial court reversed its ruling and held the son to be not the son of Gerardo but of Mario. Hence, the child was a legitimate child of Theresa and Mario.


Whether the child is the legitimate child of Ma.Theresa and Gopiao or the illegimate child of Ma.Theresa and Gerardo.


The status and filiation of a child cannot be compromised. Article 164 of the Family Code is clear. A child who is conceived or born during the marriage of his parents is legitimate. As a guaranty in favor of the child and to protect his status of legitimacy, Article 167 of the Family Code provides:

Article 167. The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.

The law requires that every reasonable presumption be made in favor of legitimacy. Gerardo has no standing in law to dispute the status of Jose Gerardo. Only Ma. Theresas husband Mario or, in a proper case, his heirs, who can contest the legitimacy of the child Jose Gerardo born to his wife. Impugning the legitimacy of a child is a strictly personal right of the husband or, in exceptional cases, his heirs. Since the marriage of Gerardo and Ma. Theresa was void from the very beginning; he never became her husband and thus never acquired any right to impugn the legitimacy of her child.

During the period that Gerardo and Ma. Theresa were living together in Fairview, Quezon City, Mario was living in Loyola Heights which is also in Quezon City. Fairview and Loyola Heights are only a scant four kilometres apart.

Considering these circumstances, the separation between Ma. Theresa and her lawful husband, Mario, was certainly not such as to make it physically impossible for them to engage in the marital act. Sexual union between spouses is assumed. Evidence sufficient to defeat the assumption should be presented by him who asserts the contrary. There is no such evidence here. Thus, the presumption of legitimacy in favor of Jose Gerardo, as the issue of the marriage between Ma. Theresa and Mario, stands.

First, the import of Ma. Theres as statement is that Jose Gerardo is not her legitimate son with Mario but her illegitimate son with Gerardo. This declaration ― an avowal by the mother that her child is illegitimate ― is the very declaration that is proscribed by Article 167 of the Family Code. The language of the law is unmistakable. An assertion by the mother against the legitimacy of her child cannot affect the legitimacy of a child born or conceived within a valid marriage.

Second, even assuming the truth of her statement, it does not mean that there was never an instance where Ma. Theresa could have been together with Mario or that there occurred absolutely no intercourse between them. All she said was that she never lived with Mario. She never claimed that nothing ever happened between them. Telling is the fact that both of them were living in Quezon City during the time material to Jose Gerardos conception and birth. Far from foreclosing the possibility of marital intimacy, their proximity to each other only serves to reinforce such possibility. Thus, the impossibility of physical access was never established beyond reasonable doubt.

Third, to give credence to Ma. Theresa’s statement is to allow her to arrogate unto herself a right exclusively lodged in the husband, or in a proper case, his heirs. A mother has no right to disavow a child because maternity is never uncertain. Hence, Ma. Theresa is not permitted by law to question Jose Gerardos legitimacy.

Finally, for reasons of public decency and morality, a married woman cannot say that she had no intercourse with her husband and that her offspring is illegitimate. The proscription is in consonance with the presumption in favor of family solidarity. It also promotes the intention of the law to lean toward the legitimacy of children.

The Court upholds the presumption of his legitimacy. As a legitimate child, Jose Gerardo shall have the right to bear the surnames of his father Mario and mother Ma. Theresa, in conformity with the provisions of the Civil Code on surnames. A persons surname or family name identifies the family to which he belongs and is passed on from parent to child. Hence, Gerardo cannot impose his surname on Jose Gerardo who is, in the eyes of the law, not related to him in any way.

* Case digest by Paula Bianca B. Eguia, LLB-1, Andres Bonifacio Law School, SY 2017-2018