Can there be a presumption of legitimacy if the child is conceived of the wife when the spouses are legally separated?
It may be recalled that children born or conceived of the wife during a marriage are presumed legitimate. This presumption of legitimacy is based on the provisions of Articles 164 1st par, 166, 167, 170, and 171 of the Family Code.
The right of coition (sexual intercourse) generally exists between the husband and wife as implied from their obligation ‘to live together’ (Article 68 Family Code). Arguably, this may be the reason why the husband must prove physical impossibility of sexual intercourse under Article 166 of the Family Code. However, such right of coition and right to live together is inexistent when a legal separation has been finally decreed by the Court (see Article 63(1) of the Family Code which says that ‘The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed’).
It is arguable then, that when the spouses are legally and de facto separated, there is no presumption of legitimacy that attaches when legal and de facto separation coincide during the time of concepcion of the child. Since there is no presumption that attaches, there is no need for the husband to impugn any presumed legitimacy by adducing evidence enumerated under Article 166 of the Family Code.
Against the arguments above, it may be argued that the presumption of legitimacy does not depend upon the right of sexual access, since Article 164 of the Family Code expressly states that children conceived or born during the marriage are legitimate. Previously, under the New Civil Code, there was a provision (Article 261) which stated that ‘There is no presumption of legitimacy or illegitimacy of a child born after three hundred days following the dissolution of the marriage or the separation of the spouses. Whoever alleges the legitimacy or the illegitimacy of such child must prove his allegation’. (underscoring supplied). The underlined phrase was not carried over to Article 169 of the Family Code.
– Atty. Alex Andrew P. Icao
Philippine Family Law perspectives 