Short answer. Possibly, but only if the separation was such that sexual intercourse was genuinely not possible during the first 120 days of the 300-day period before birth. Merely living in different cities does not automatically satisfy this ground — the statute requires a separation that made intercourse impossible, not just inconvenient.
What the law says
the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible
Family Code, Article 166 — Grounds to Impugn Legitimacy. Read the full provision →
The statutory ground and its specific requirement
Article 166 of the Family Code lists the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible as one ground for impugning legitimacy. The critical phrase is "in such a way that sexual intercourse was not possible." Physical distance between cities, standing alone, typically does not make intercourse impossible — people travel. The ground requires a separation so complete that conjugal access was genuinely precluded during the relevant period.
The relevant time window
This separation must have existed within the first 120 days of the 300 days which immediately preceded the birth of the child — the statutory conception window. A husband who was living apart from his wife for much of the marriage but was present and accessible during that 120-day window cannot rely on this ground. Conversely, a husband who was confined abroad with no means of returning or even communicating — in a situation genuinely preventing conjugal access — is in a stronger position, though still required to prove it.
What the person impugning must show
The burden is on the party seeking to impugn the child's legitimacy to prove the separation was of the qualifying kind. Evidence that courts will scrutinize includes: how far apart the couple lived, whether they had any contact or visits during the period, travel records, communications, and any other circumstances bearing on whether access was truly impossible. A husband who occasionally visited his wife in another city during the conception window will face serious difficulty establishing this ground.
The presumption protects the child
Under Article 164 of the Family Code, a child conceived or born during marriage is presumed legitimate. That presumption exists to protect children, and the grounds for rebutting it in Article 166 are exclusive and strictly construed. A court is unlikely to find the ground established on mere geographic separation without evidence of circumstances that genuinely foreclosed the possibility of intercourse during the relevant period. If you are involved in this kind of dispute — whether defending the child's status or raising the question — legal counsel can help assess whether the specific facts meet the statutory threshold.
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.
- Bernie Santiago vs. Rommel C. Jornacion and The City Civil Registrar of Marikina City, G.R. No. 230049, October 6, 2021 — read the decision on LawPhil →
- Lowella Yap vs. Almeda Yap, Hearty Yap-Dybongco and Diosdado Yap, Jr, G.R. No. 222259, October 17, 2022 — read the decision on LawPhil →
- Richelle Busque Ordoña vs. The Local Civil Registrar of Pasig City and Allan D, G.R. No. 215370, November 9, 2021 — read the decision on LawPhil →
- Eugenio San Juan Geronimo vs Karen Santos, G.R. No. 197099, September 28, 2015 — read the decision on LawPhil →