Mario Arsenio A. Atienza*

Let me tell you a short story.

     In a not too distant barangay, a 17-year-old lass eloped with her 20-year-old boyfriend. Unfortunately for them, after the traditional "paman-hikan", they realized that they cannot get married because of the legal impediment of minority on the part of the girl.

     After some legal consultations and finding out that no marriage license can be issued, it was decided by the elders that the two can just live together in a common-law relationship and that a civil or church wedding will follow after the attainment of the age of majority on the part of the woman.

     Nine months thereafter, a child was born. He was registered as an illegitimate child, hence he carried the surname of his mother. He was baptized under said name. Let us call him "Boy'.

     After the mother attained the age of majority, no marriage took place for various reasons, mainly financial. After another year, "Girlie" was born and was likewise registered as an illegitimate child.

     It was only after Girlie's birth that finally a church wedding was cele-brated. One year thereafter, another child was born. Let us call him "Roy". Because Roy was born within a lawful wedlock, he was registered as a legitimate child and carried his father's surname in the registry of birth.

     When the children reach school-age, the problem of different surnames and status cropped-up. Girlie's status was upgraded to that of a legitimized child while Boy remained as an illegitimate. Girlie and Roy carried their father's surname but Boy, still bears his mother's surname. One is illegiti-mate, the other is legitimated and the third is legitimate.

     This factual scenario is repeated with some minor variances thousands of time over in almost all communities in the country.

     Ordinary laymen cannot understand and are puzzled with the kind of law we have which results to such absurd situations. They cannot compre-hend the "wisdom" of the law and why, despite the subsequent celebration of a valid marriage, the first born remains illegitimate. When told that the best remedy under the situation is for the parents to adopt Boy, they expressed greater amazement and incredulity for that "legal" situation. Their disappointment turned to frustration when informed that an ordinary adoption case may cost them several thousand pesos as legal expenses.

     You may wonder why I brought this up in this initial issue of our Law Journal. This is because, this situation is a common legal problem brought to my attention by numerous couples who are similarly situated.

     As a public prosecutor, there is a common perception especially from the unlettered and indigents that a "Fiscal" has an inexhaustible stock of legal wisdom. Thus, requests for legal assistance are not limited to criminal cases but likewise to all sorts of human problems, from the sublime to the ridiculous! Maybe, it is not because of Solomonic wisdom or sagacity, but probably these pieces of advice and opinions are for free. Unlike doctors, lawyers cannot bill a person asking for legal advice especially lawyers in the public service.

      They are tasked to attend to these problems, legal or otherwise, to ease the minds and lighten the burdens of those who sought from them solace or enlightenment.

     Going back to the legal problem posed by the aforementioned scenario, the "culprit" is Article 177 of the Family Code, to wit:

"Art. 177. Only children conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other, may be legitimated."
     At the time of Boy's conception, his mother suffers from the legal impediment of minority. On the part of Girlie, when she was conceived, there was no legal impediment existing on the part of her parents. Thus, the subsequent valid marriage cannot legitimate Boy's civil status but did legitimate Girlie's illegitimate status.

     I am honestly convinced that this law needs an urgent amendment. It is biased against children who have no say whatsoever as to the timing of their birth. Why will they be discriminated against? It is better to amend this law than to pursue Companero Rene Cayetano's bill to lower the marrying age to 14 and 16 for male and female, respectively. This can be easily done by merely adding as an exception, the phrase 'except the impediment of minority" to Article 177. As herein proposed, Article 177 of the Family Code, should read as follows:

"Art. 177. Only children conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other, "except the impediment of minority" may be legitimated."
     With these magic words, thousands of illegitimate children will enjoy the same rights as their legitimate and full-blood brothers and sisters. The adoption process can be discarded, legal expenses saved and court dockets unclogged. Of greater significance is that it will do justice to the innocent children.

     I purposely singled out the legal impediment of minority as the only exception because to include children of bigamous marriages and adultero-us children, would destroy the rationale of legitimation if the parents subsequently marry each other.1 In the situations mentioned above, the impediment of minority is not as "grave" as the impediment of bigamy and adultery. I am honestly convinced that it will not dilute the essence of legitimation. Rather, it appears that said provision is primarily directed against bigamous and adulterous relationship, both criminal offenses.

     This may not be an earth-shaking legal treatise, but it is a practical and humanitarian approach to the mischievous effect of the seemingly innocu-ous provision of Article 177 of the Family Code on legitimation.


* AA, LLB (With Honors-San Beda College); City Prosecutor of Batangas; Newspaper columnist; Professor of Criminal and Remedial Laws, University of Batangas.
1 Minutes of the Civil Code Revision Committee, August 24, 1985.