Mercy is married to Joel and they have three kids, all minors. In 2015, they separated, with Joel taking their children with him to the province where they can continue their studies while he tended the family’s farm as his means of income. Mercy was left in Manila with her parents; she was working as a call center agent at the time of their separation.
In 2016, Joel filed for annulment. Around the same time the papers were hand-carried by a court personnel to Mercy’s house, she was already dating a new guy from work. Not long after, Mercy broke the news to her family that she is pregnant.
Her boyfriend, an unmarried man, is willing to acknowledge Mercy’s baby. Their plan is to get married as soon as Mercy’s previous marriage is officially annulled; they will have their baby legitimized after they get married.
Will Mercy and Joel’s plans succeed? Will this not cause problems or confusion on the child’s birth right? Can the child use his biological father’s last name while his mother is still married to her previous husband?
According to the Family Code, a child born to a married woman is considered legitimate, even if the mother declares against its legitimacy, or even if she has been sentenced as an adulteress (Article 164 and Article 167).
Given these insights, Mercy’s boyfriend is not legally entitled to acknowledge the child because Mercy is still married to Joel (pending decision of filed annulment case). Moreover, letting the child use Mercy’s boyfriend’s last name will cause further confusion in the child’s legitimacy and birth right. To make matters worse, Mercy’s child is not qualified to be “legitimized due to subsequent marriage” because of the existence of her marriage with Joel at the time of the child’s birth.
Only if Joel, being Mercy’s legal husband at the time of the child’s birth, disputes the child’s legitimacy, will Mercy be able to declare the child as ‘illegitimate’; otherwise, her child remains ‘legitimate’ and registered as Joel’s child.
What are the provisions for remarrying after an annulment has been approved?
It would have been best for Mercy to have waited until the annulment was approved before she and her boyfriend decided to have a child. Technically, there is even a prescriptive period of 300 days after the annulment has been handed down, before Mercy bears another child, if only to avoid any controversy on her child’s legitimacy.
Below are the specific articles from the Family Code that will help us understand this provision better:
Article 168. If the marriage is terminated and the mother contracted another marriage within 300 days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary:
(1) A child born BEFORE 180 days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within 300 hundred days after the termination of the former marriage;
(2) A child born AFTER 180 days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the 300 days after the termination of the former marriage.
It is also good to note that getting married immediately after the issuance of the decree of annulment may be considered a crime of premature marriage; this is punishable under Article 351 of the Revised Penal Code.