It is high time to rephrase the word ‘illegitimate’ in reference to a child

By Atty. Eduardo T. Reyes III

The word “illegitimate” means something not authorized by law, or not in accordance with law. More pointedly, in Family Law, an illegitimate child refers to one who was born outside of a lawful marriage.

Art. 164 of the Family Code states that: “Children conceived or born during the marriage of the parents are legitimate”. The preposition “or” actually works in favor of the child because it is enough that he/ she is either conceived “or” born during the marriage of the parents, to make him or her a legitimate child.

This is strengthened further by Article 165 of the same Code which enunciates that: “Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this Code”. Thus, for a child to be deemed as “illegitimate”, he/ she must be both conceived “and” born, outside a valid marriage.

The phrase “unless otherwise provided in this Code” refers to what are envisaged in Article 54 which  provides that:

Art. 54. Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate.

In turn, Article 36 refers to void marriages on account of psychological incapacity while Article 53 to void marriages for failure to record the judgment of nullity of marriage in the civil register, to liquidate the common properties, and to deliver the children’s presumptive legitimes.

So by way of exception, the only children who are born outside a valid marriage who are still considered as legitimate, are those born to marriages where one party thereto is- or both parties are- afflicted with a psychological malady, and those born to marriages where one of the spouses contracted a second marriage without liquidating the properties of his/ her former marriage and delivering the children’s presumptive legitimes.

In the words of Justice Marvic Leonen in the very recent case of Aquino v. Aquino, G.R. Nos. 206912 and 209018, December 7, 2021 (which is an en banc decision, excerpts of which were posted on the Supreme Court website on 31 March 2022), the great divide between legitimate children on one hand, and illegitimate ones on the other, is underlined in Article 992 which embodies what is known as the “iron-curtain rule” that bars “nonmarital children from inheriting from their grandparents and other direct ascendants, as they are covered by the term “relatives”. Earlier jurisprudence had justified the prohibition under the “iron curtain rule” as one “inferred from a perceived hostility between the marital and nonmarital sides of a family”.

More interestingly, the decision used the terms “marital” and “nonmarital” to replace the terms “legitimate” and “illegitimate” when referring to the children, as the latter are pejorative terms when used to describe children based on their parents’ marital status.  This is a departure from the presumption that “nonmarital children are products of illicit relationships or that they are automatically placed in a hostile environment perpetrated by the marital family”.

Indeed, society nowadays has become more modern and progressive in its mindset such that the line that used to separate children who were born within a valid marriage and those without, is more becoming insignificant or inconsequential.

And rightly so.

For it is not the fault of the children if their parents do not believe in marriage. There should be no stigma to be worn by children who were born to parents who did not marry.

Yet again, the New Civil Code as well as the Family Code still use the terms “legitimate” and “illegitimate”. What would be the legal consequence if the Supreme Court veers from using such “pejorative” words?

The humble submission of this column is that the change in terminology means no disrespect for the law, but is rather an adherence to what is known as “sociological jurisprudence”, which is a “belief that judges had to take into account economic, social, and political facts in addition to legal theory when determining a case”. (Dissent and the Supreme Court, Its Role in the Court’s History and the Nation’s Constitutional Dialogue, by Melvin I. Urofsky). Its variation is “legal realism” which in turn reckons that “many factors influence legal outcomes, of which the law itself was but one”(Ibid).

Based on this recent ruling in Aquino v. Aquino, the Supreme Court ruled that “children, regardless of their parents’ marital status, can now inherit from their grandparents and other direct ascendants by right of representation”. In effect, the “iron-curtain rule” had been removed. So, too, is the classification that segregates children according to the marital status of their parents for purposes of succession.

With this, the ball is now in the lawmakers’ court. All laws which provisions refer to children born outside of marriage must now be called as “nonmarital children” while those born within marriage as “marital children”.

It is high time to amend our Civil and Family Laws to conform to societal sentiment and breathe life to what Justice Louis D. Brandeis calls “The Living Law”.

(Atty. Eduardo T. Reyes, III is the senior partner of ET Reyes III & Associates- a law firm based in Iloilo City. He is a litigation attorney, a law professor, and a book author. His website is etriiilaw.com).