memorandum & legal opinion - ex. #3

8/10/2019 Memorandum & Legal Opinion - Ex. #3

http://slidepdf.com/reader/full/memorandum-legal-opinion-ex-3 1/4

October 9, 2014

Mrs. DD306 San Sebastian St.,Recto Avenue, Manila

Dear Madam:

Here is the opinion you requested. The facts gathered from you are as follows:

You mentioned that had an affair with an American, which bore a son. Unfortunately,this all took place during your marriage with Mr. EE. The son looks like his Americanfather, which obviously Mrs. DD could not hide from Mr. EE. When the child was born,Mr. EE only looked at the baby and her. However, in time, Mr. EE cared for the child.Months later, you and the American executed affidavits recognizing that the child was

the American's son. Mr. EE, amazingly, executed his own affidavit denying that thechild was a result of the relationship between you and the foreigner.

Now, the issue here is whether or not American's acknowledgment of parenting thechild through an affidavit he executed has any legal effect.

In my opinion, American's acknowledgment of parenting the child through an affidavithe executed has no legal effect.

Legitimacy of the child is based on whether or not the child is conceived during the

marriage and a child if conceived during the marriage, even though the the mothercommit adultery, is still legitimate in accordance with the Article 164 and 167 of theFamily Code which state that:

“ Art. 164. Children conceived or born during the marriage of the parentsare legitimate.” xxx xxx xxx

“Art. 167 . The child shall be considered legitimate although themother may have declared against its legitimacy or may have beensentenced as an adulteress.”

In your case, where your husband acknowledge your child as his own, this issue hasbeen answered by the Supreme Court in the case of Gerardo Concepcion vs. Court of Appeals and Ma. Theresa Almonte (G.R. No. 123450. August 31, 2005) as cited in the book,“Persons and Family Relations Law” by Sta. Maria (p.604), when they ruled that thechild was a legitimate child of the petitioner and the second husband, to wit:

“xxx xxx where the wife bigamously married another and a child was bornin the said bigamous union and where the bigamous marriage wasdeclared null and void, the Supreme Court ruled that the child actuallyborn in the second voided union was in effect born of the wife in the first

subsisting marriage and therefore, in the eyes of the law, the father of thewas the first husband of the wife. It was also asserted that the birthcertificate of the child stating the name of the second husband as the fathercreated a presumption of fact which would have been rebutted, but thiscontention was rejected by the Supreme Court by stating that in case ofconflict between a presumption of law that a child born inside a validmarriage is legitimate and a presumption of fact arising from the



statement of filiation in a birth certificate, the presumption of law will prevail.”

In your case, the child is born during the existence of your marriage with Mr. EE. Andeven if Mr. EE knows that he is not the biological father of your child, still he

acknowledge the child as his own. Therefore, in the eyes of the law the child is alegitimate son of Mr. EE. Even though the American executed an affidavit declaring thathe is the father of your son, this affidavit will not have a legal effect since Mr. EE, as thepresent father acknowledged by our laws executed also an affidavit that he is also thefather of your child. Since the American did nothing to prove that he is father otherthan the said affidavit, in case of doubt between the men, the doubt will resolve in favorof Mr. EE because he has more established evidence that he is the father.

To conclude, in applying Article 164 and 167 of the Family Code and the decision in thecase of Gerardo Concepcion vs. Court of Appeals and Ma. Theresa Almonte (G.R. No. 123450.

August 31, 2005), the affidavit executed by the American has no legal effect because thechild was conceived during the existence of the marriage and the legal husbandacknowledged the child as his own even though he has the knowledge of youradulterous act.

Very truly yours,

(Atty.) Leangie L. Mora



MEMORANDUM

TO: Mrs. DDFROM: (Atty.) Leangie L. Mora

RE: PaternityDATE: October 9, 2014

QUESTION PRESENTED

Whether or not the American's acknowledgment of parenting the child throughan affidavit he executed child has any legal effect.

ANSWER

American's acknowledgment of parenting the child through an affidavit heexecuted has no legal effect.

FACTS

Mrs. DD had an affair with an American, which bore a son. Unfortunately, thisall took place during your marriage with Mr. EE. The son looks like his Americanfather, which obviously Mrs. DD could not hide from Mr. EE. When the child was born,Mr. EE only looked at the baby and her. However, in time, Mr. EE cared for the child.Months later, Mrs. DD and the American executed affidavits recognizing that the child

was the American's son. Mr. EE, amazingly, executed his own affidavit denying that thechild was a result of the relationship between you and the foreigner.

DISCUSSION

Legitimacy of the child is based on whether or not the child is conceived duringthe marriage and a child if conceived during the marriage, even though the the mothercommit adultery, is still legitimate in accordance with the Article 164 and 167 of theFamily Code which state that:

“ Art. 164. Children conceived or born during the marriage of the parentsare legitimate.” xxx xxx xxx

“Art. 167 . The child shall be considered legitimate although themother may have declared against its legitimacy or may have beensentenced as an adulteress.”

In instant case, where the husband acknowledge the child as his own, this issuehas been answered by the Supreme Court in the case of Gerardo Concepcion vs. Court of

Appeals and Ma. Theresa Almonte (G.R. No. 123450. August 31, 2005) as cited in the book,“Persons and Family Relations Law” by Sta. Maria (p.604), when they ruled that thechild was a legitimate child of the petitioner and the second husband, to wit:

“xxx xxx where the wife bigamously married another and a childwas born in the said bigamous union and where the bigamous marriagewas declared null and void, the Supreme Court ruled that the child



actually born in the second voided union was in effect born of the wife inthe first subsisting marriage and therefore, in the eyes of the law, the father of the was the first husband of the wife. It was also asserted that thebirth certificate of the child stating the name of the second husband as the father created a presumption of fact which would have been rebutted, but

this contention was rejected by the Supreme Court by stating that in caseof conflict between a presumption of law that a child born inside a validmarriage is legitimate and a presumption of fact arising from thestatement of filiation in a birth certificate, the presumption of law will prevail.”

In the instant case, the child is born during the existence of your marriage withMr. EE. And even if Mr. EE knows that he is not the biological father of your child, stillhe acknowledge the child as his own. Therefore, in the eyes of the law the child is alegitimate son of Mr. EE. Even though the American executed an affidavit declaring that

he is the father of your son, this affidavit will not have a legal effect since Mr. EE, as thepresent father acknowledged by our laws executed also an affidavit that he is also thefather of your child. Since the American did nothing to prove that he is father otherthan the said affidavit, in case of doubt between the men, the doubt will resolve in favorof Mr. EE because he has more established evidence that he is the father.

CONCLUSION

In applying Article 164 and 167 of the Family Code and the decision in the case

of Gerardo Concepcion vs. Court of Appeals and Ma. Theresa Almonte (G.R. No. 123450. August 31, 2005), the affidavit executed by the American has no legal effect because thechild was conceived during the existence of the marriage and the legal husbandacknowledged the child as his own even though he has the knowledge of youradulterous act.

memorandum & legal opinion - ex. #3

Documents