How and under what circumstance will a child's legitimacy be affected by an annulment decree? My son is 11 and my marriage was annulled in 2012 on the grounds of it being bigamous. Does that make my son illegitimate? What should I do now?
Only those children born within a valid and existing marriage are considered legitimate, while children born during a void marriage are generally considered illegitimate. According to the Family Code, the following marriages shall be void from the beginning:
1. Those contracted by any party below eighteen years of age even with the consent of parents or guardians; 2. Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so; 3. Those solemnized without a valid marriage license; 4. Bigamous or polygamous marriages; 5. Those contracted through mistake of one contracting party as to the identity of the other; and 6. Subsequent marriages, where, even if the previous marriage has already been declared void, the parties did not have the judgment of nullity of marriage, the partition and distribution of the properties of the spouses, and the delivery of the presumptive legitimes of the children recorded in the appropriate civil registry.
Thus, children who are born under any of the six void marriages above are considered illegitimate. On the other hand, children who were born to a marriage that was later declared void due to the psychological incapacity of one or both of the spouses under Art. 36 of the Family Code are still considered legitimate. In your case, since your marriage was bigamous, your son is considered illegitimate under the law.
Your next step now depends on what you want to happen. If you just want your son to continue using his father’s name, then there is no need to worry. If your son is already carrying the surname of the father, you don’t need to have it changed, since illegitimate children are entitled to use the father’s last name, as long as paternity was acknowledged.
However, if you want your son to become a legitimate child, you have the option of adopting him. RA 8552, or the Domestic Adoption Act of 1998, provides that an unwed mother can adopt her own child to raise the child’s status to that of a legitimate child. But the consent of the biological father is necessary, and he must be willing to lose his parental authority over the child, which means that your son can no longer use his father’s surname. After adoption, your son will be considered your legitimate son for all intents and purposes.