Are the children from my second marriage still legitimate if my missing spouse comes back?

Termination looks forward; legitimacy looks back

The fear behind this question is that a reappearance retroactively unmakes the second family. It does not. The Code speaks of the termination of the subsequent marriage, not of its being void from the beginning, and it then says in terms that children conceived prior to that termination shall be considered legitimate. The status is settled by the fact of conception during the marriage, and it is not reopened by what happens afterwards. That is a deliberate choice: the children had no part in the absence, the presumption of death, or the remarriage, and the Code declines to make them carry the consequences of any of it.

Good faith and bad faith change money, not children

The rest of Article 43 is largely about property and it does turn on fault. The community or conjugal partnership is dissolved and liquidated; a spouse who contracted the subsequent marriage in bad faith forfeits his or her share of the net profits in favour of the common children, or failing them the children of a previous marriage, or failing those the innocent spouse. Donations by reason of marriage stay valid unless the donee married in bad faith, in which case they are revoked by operation of law. Note where the forfeited share goes first: to the children. Bad faith costs a spouse money and inheritance rights, but it never costs a child legitimacy.

What the innocent spouse may also do

Two further consequences sit in the same article and are easy to miss. The innocent spouse may revoke the designation of the spouse who acted in bad faith as beneficiary in any insurance policy, and may do so even if such designation be stipulated as irrevocable — an unusual override of what the policy itself says. And the spouse who contracted the subsequent marriage in bad faith is disqualified from inheriting from the innocent spouse, by will or by intestacy alike. Both of these are about the adults. Neither touches the children's share, which comes to them as legitimate children of that marriage.

What to get in order

Practically, the documents that matter are the children's birth certificates, the record of the subsequent marriage, and whatever established the first spouse's absence in the first place. The liquidation is where the real dispute usually lands, because bad faith has to be shown before any forfeiture follows, and the person alleging it carries that burden. If insurance or a pension is involved, the beneficiary designation should be looked at early rather than after a claim is filed — revocation is available, but it has to actually be exercised.

Cases citing this provision

These Supreme Court decisions cite the provision above. We list them so you can read them yourself; the summaries of what each decided are not ours to give.

• V. Maquilan vs. D. Maquilan, G.R. No. 155409, June 8, 2007 — read the decision on LawPhil →
• Lucila David and the Heirs of Rene F. Aguas, namely: Princess Luren D. Aguas, G.R. No. 241036, January 26, 2021 — read the decision on LawPhil →
• Noel Buenaventura vs. Court of Appeals, et al, G.R. No. 127358, March 31, 2005 — read the decision on LawPhil →

Related provisions

• Family Code, Article 43 — Effects of Terminating a Subsequent Marriage