Children’s Legitimacy After Annulment and Declaration of Absolute Nullity of Marriage

“Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life” (Article 1, Family Code). 

Under Articles 2 and 3 of the Family Code (E.O. 209), a valid marriage requires the presence of distinct essential and formal requisites. The essential requisites mandate that the contracting parties must be a male and a female possessing the legal capacity to marry, and they must give their free consent in the immediate presence of a solemnizing officer.

On the other hand, the formal requisites dictate the procedural and ceremonial legality of the union. These require that the solemnizing officer has the proper legal authority, that a valid marriage license is secured (unless exempt by law), and that a marriage ceremony takes place where the parties personally declare their intent to take each other as husband and wife before the officer and at least two adult witnesses.

In the absence of any of these essential or formal requisites, a marriage can be rendered void ab initio or void from the beginning (Article 4), serving as the statutory basis for a Petition for Declaration of Absolute Nullity of Marriage. 

These grounds are heavily expanded under Articles 35 to 38, capturing specific violations such as underage marriage, an unauthorized solemnizing officer, the absence of a valid marriage license, bigamous or polygamous unions, mistaken identity, a void subsequent marriage, psychological incapacity, incestuous relations, and marriages contrary to public policy.

On the other hand, a defect in any of the essential requisites can also make a marriage voidable and dissolved by a decree of Annulment. Unlike a declaration of absolute nullity, an annulment applies to a marriage that is valid until legally set aside by a court based on the exclusive grounds itemized under Article 45, which include lack of parental consent, unsound mind or insanity, fraud, force or undue influence, physical incapacity, and sexually transmissible disease. 

Now the big question is—when a court declares a marriage void ab initio or voidable, does this make the children illegitimate?

Because a child’s civil status is a direct legal consequence of the marriage itself, it is not a collateral issue that courts are barred from resolving in a petition for annulment or declaration of nullity. As a result, litigants can rightfully expect the court to rule on their legitimacy within the same proceeding, safely relying on clear statutory mandates. 

Under Article 165, “Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this Code.”

Plainly stated, because a declaration of absolute nullity treats a marriage as if it did not legally exist, children born from such unions are generally classified as illegitimate. Conversely, because a voidable marriage undergoes an annulment—meaning it is legally valid until judicially set aside—the children retain their status as legitimate.

Nevertheless, the statutory caveat “unless otherwise provided in this Code” opens the door to explicit exceptions designed to protect innocent offspring. Under Article 54,

“Article 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.”

Clearly stated, children conceived or born before an annulment decree are legitimate. Thus, this conclusively resolves any ambiguity as to whether a decree of annulment strips children of their legitimate status. 

However, determining legitimacy in marriage nullity cases is more complicated than it appears. Because Article 54 explicitly references psychological incapacity under Article 36, a strict textual reading excludes children born under all other grounds of nullity from retaining their legitimate status.

In recent jurisprudence, in Republic vs. Tangarorang, G.R. No. 272006 (February 05, 2025), the Supreme Court clarified that Article 54 applies with equal force to legitimated children. The Court held that children born prior to marriage who were subsequently legitimated by their parents’ marriage retain their legitimate status even if that marriage is later declared void ab initio under Article 36 for psychological incapacity, reversing lower court rulings that attempted to reclassify such children as illegitimate.

Based on the foregoing, children born of marriages voided under Article 35 (lack of basic requisites, etc.), Article 37 (incestuous marriages), and Article 38 (marriages contrary to public policy) fall outside the scope of Article 54 and are thus considered illegitimate.

In addition, children born and conceived in subsequent bigamous marriages (with judicial declaration of presumptive death) under Article 41 are covered under a special legitimacy rule under Article 43(1), where they are considered legitimate. 

So what will happen if children are declared illegitimate?

Critical to declarations of nullity of marriage, the custody of children from a void marriage may be determined by the parents’ written agreement or by the court, with the best interest of the child as the paramount consideration. 

Under Article 312 of the Family Code, “In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit.” 

Equally important, under Article 214, “In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the same consideration mentioned in the preceding article, shall exercise the authority.” 

Regardless of the validity of the marriage, both parents remain legally obligated to support their legitimate or illegitimate children under Article 195. Pursuant to Article 201, the amount of support depends on the parents’ financial capacity and the child’s essential needs.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is established. For advice tailored to your specific circumstances, consult a qualified professional.

Duran & Duran-Schulze Law (“DDS Law”) is a family law firm in Metro Manila, Philippines, specializing in declarations of nullity of marriage and annulments. For legal consultations and inquiries, call us at (02) 8928-9535 (landline) or +639171940482 (mobile), or email info@duranschulze.com.