Art. 40.

The absolute nullity of a previous marriage may be It would seem that the accused and Maria Faicol marriage contracted by any person during the lifetime of his
invoked for purposes of remarriage on the basis solely of a did not live a happy marital life in Cebu, for it first spouse illegal and void from its performance, and no
final judgment declaring such previous marriage void. appears that in 1949 and 1950, Maria Faicol judicial decree is necessary to establish its invalidity, as
suffered injuries to her eyes because of physical distinguished from mere annullable marriages. There is
maltreatment in the hands of the accused. On here no pretense that appellant's second marriage with
January 22, 1953, the accused sent Maria Faicol Olga Lema was contracted in the belief that the first spouse,
G.R. No. L-10016 February 28, 1957 to Iloilo, allegedly for the purpose of undergoing Jovita de Asis, had been absent for seven consecutive
treatment of her eyesight. During her absence, the years or generally considered as dead, so as to render said
THE PEOPLE OF THE PHILIPPINES, plaintiff-appelle, accused contracted a third marriage with a certain marriage valid until declared null and void by a subsequent
vs. Jesusa C. Maglasang on October 3, 1953, in court.
PROCESO S. ARAGON, defendant-appellant. Sibonga, Cebu. (See Exhibits "C", "D", "E" and "F")
We are of the very weighty reasons by Justice Alex Reyes
Office of the Solicitor General Ambrosio Padilla and The accused admitted having contracted marriage in the dissent in the case above-quoted But this weighty
Solicitor Adolfo Brillantes for appellee. with Jesusa C. Maglasangin Sibonga, Cebu, on reasons notwithstanding, the very fundamental principle of
Prospero V. Manuel, Fernando Moncada and Antonio Abad October 3, 1953, Although the accused made an strict construction of penal laws in favor of the accused,
Tornis for defendant and appellant. attempt to deny his previous marriage with Maria which principle we may not ignore, seems to justify our
Faicol, the Court, however, believes that the stand in the above-cited case of People vs. Mendoza. Our
attempt is futile for the fact of the said second Revised Penal Code is of recent enactment and had the
LABRADOR, J.:
marriage was fully established not only by the rule enunciated in Spain and in America requiring judicial
certificate of the said marriage, but also by the declaration of nullity of ab initio void marriages been within
Appeal from a judgment of the Court of First Instance of testimony of Maria Faicol and of Eulogio Giroy, the contemplation of the legislature, an express provision to
Cebu finding appellant guilty of bigamy. The facts are not one of the sponsors of the wedding, and the that effect would or should have been inserted in the law. In
disputed and, as found by the trial court, are as follows: identification of the accused made by Maria Faicol. its absence, we are bound by said rule of strict
(See Exhibits "A" and "B"; t.s.n. pp. 32-33, 40, 41, interpretation already adverted to.
On September 28, 1925, the accused, under the name of hearing of April 27, 1954).
Proceso Rosima, contracted marriage with a certain Maria It is to be noted that the action was instituted upon
Gorrea in the Philippine Independent Church in Cebu The Court of First Instance of Cebu held that even complaint of the second wife, whose marriage with the
(Exhibits "1" and "1-A"). While his marriage with Maria in the absence of an express provision in Act No. appellant was not renewed after the death of the first wife
Gorrea was subsisting, the accused under the name of 3613 authorizing the filing of an action for judicial and before the third marriage was entered into. Hence, the
Proceso Aragon, contracted a canonical marriage with declaration of nullity of a marriage void ab initio, last marriage was a valid one and appellant's prosecution
Maria Faicol on August 27, 1934, in the Santa Teresita defendant could not legally contract marriage with for contracting this marriage can not prosper.
Church in Iloilo City. Jesusa C. Maglasang without the dissolution of his
marriage to Maria Faicol, either by the death of the For the foregoing considerations, the judgment appealed
The sponsors of the accused and Maria Faicol were Eulogio latter or by the judicial declaration of the nullity of from is hereby reversed and the defendant-appellant
Giroy, who was then an employee of the Office of the such marriage, at the instance of the latter. acquitted, with costs de oficio, without prejudice to his
Municipal Treasurer of Iloilo, and a certain Emilio Tomesa, a Authorities given for this ruling are 5 Viada, 5th prosecution for having contracted the second bigamous
clerk in the said office (Exhibit "A" and testimonies of edition, 651; 35 American Jurisprudence, Marriage, marriage. So ordered.
Eulogio Giroy and complainant Maria Faicol). After the said Sec. 46, p. 212; Bickford vs. Bickford, 74 N. H. 466,
marriage, the accused and Maria Faicol established 69 A. 579.
residence in Iloilo. As the accused was then a traveling
salesman, he commuted between Iloilo where he Appellant in this Court relies on the case of People
maintained Maria Faicol, and Cebu where he maintained G.R. No. L-23214 June 30, 1970
vs. Mendoza, (95 Phil., 845; 50 Off. Gaz., [10]
his first wife, Maria Gorrea died in Cebu City on August 5, 4767). In this case the majority of this Court
1939 (Exhibit "2"). After Maria Gorrea's death, and seeing declared: OFELIA GOMEZ, as Administratrix of the Estate of the
that the coast was dear in Cebu, the accused brought Maria late ISIDRA GOMEZ Y AQUINO, plaintiff-appellee,
Faicol to Cebu City in 1940, where she worked as a vs.
The statutory provision (section 29 of the Marriage
teacher-nurse. JOAQUIN P. LIPANA, defendant-appellant.
Law or Act No. 3613) plainly makes a subsequent
Marcelo Y. Hernandez for plaintiff-appellee. bigamous and void ab initio; and (2) in holding that section, must be commenced within the periods and by the
Article 1417 of the Spanish Civil Code is applicable parties as follows:
Presentacion G. Santos for defendant-appellant. in this case.
xxx xxx xxx
The first error has not been committed. The
controlling statute is Act 3613 of the Philippine (b) For causes mentioned in subdivision (b); by either party
Legislature, the Marriage Law which became during the life of the other, or by the former husband or wife.
MAKALINTAL, J.:
effective on December 4, 1929 and was in force
when the two marriages were celebrated. The
The defendant-appellant, Joaquin P. Lipana, contracted xxx xxx xxx
pertinent provisions are as follows:
two marriages: the first with Maria Loreto Ancino in 1930
and the second with Isidra Gomez y Aquino in 1935. At the The appellant, relying on Section 30(b) quoted above,
SEC. 29. Illegal Marriages. — Any marriage
time of the second marriage the first was still subsisting, maintains that his marriage to Isidra Gomez was valid and
subsequently contracted by any person during the
which fact, however, Lipana concealed from the second could be annulled only in an action for that purpose, which
lifetime of the first spouse of such person with any
wife. in the light of Section 31 could be filed only by either party
person other than such first spouse shall be illegal
thereto, during the lifetime of the other, or by the former
and void from its performance, unless;
On December 17, 1943 the spouses of the second marriage spouse.
acquired by purchase a piece of land in Cubao, Quezon
(a) The first marriage was annulled or dissolved;
City, for the price of P3,000.00. The Torrens title for the However, it is not Section 30 but Section 29 which governs
property (Transfer Certificate No. 25289 of the Register of in this case, particularly the first paragraph thereof, which
Deeds for Quezon City) was issued on February 1, 1944, in (b) The first spouse had been absent for seven says that "any marriage contracted by any person during
the name of "Joaquin Lipana married to Isidra Gomez." On consecutive years at the time of the second the lifetime of the first spouse of such person with any
July 20, 1958 Isidra Gomez died intestate and childless, marriage without the spouse present having news person other than such first spouse shall be illegal and void
and survived only by her sisters as the nearest relatives. On of the absentee being alive, or the absentee being from its performance." This is the general rule, to which the
August 7, 1961 Ofelia Gomez, judicial administratrix of her generally considered as dead and believed to be only exceptions are those mentioned in subsections (a) and
estate, commenced the present suit, praying for the so by the spouse present at the time of contracting (b) of the same provision.<äre||anº•1àw>
forfeiture of the husband's share in the Cubao property in such subsequent marriage, the marriage so
favor of the said estate. Reliance is placed on Article 1417 contracted being valid in either case until declared
There is no suggestion here that the defendant's 1930
of the old Civil Code, the Spanish text of which provides: null and void by a competent court.
marriage to Maria Loreto Ancino had been annulled or
dissolved when he married Isidra Gomez in 1935, and there
La sociedad de gananciales concluye al disolverse el SEC. 30. Annullable marriages. — A marriage may is no proof that he did so under the conditions envisioned in
matrimonio o al ser declarado nulo. be annulled for any of the following causes, sub-section (b). The burden is on the party invoking the
existing at the time of the marriage: exception to prove that he comes under it; and the
El conjuge que por su mala fe hubiere sido causa de la defendant has not discharged that burden at all, no
nulidad, no tendra parte en los bienes gananciales. xxx xxx xxx evidence whatsoever having been adduced by him at the
trial. Indeed, he contracted the second marriage less than
(b) That the former husband or wife of either was seven years after the first, and he has not shown that his
The trial court, ruling that the second marriage was void ab
living and the marriage with such former husband first wife was then generally considered dead or was
initio and that the husband was the one who gave cause for
or wife was then in force; believed by him to be so.
its nullity, applied the aforequoted provision and declared
his interest in the disputed property forfeited in favor of the
estate of the deceased second wife. xxx xxx xxx The second error bears closer analysis. Is Article 1417 of
the Spanish Civil Code applicable under the facts of this
case?
In the present appeal by the defendant he attributes two SEC. 31. Time for filing action for decree of nullity.
errors to the trial court: (1) in allowing a collateral attack on — The action to obtain a decree of nullity of
the validity of the second marriage and in holding it to be marriage, for causes mentioned in the preceding There is one primordial fact which must be considered,
namely, that since the defendant's first marriage has not
been dissolved or declared void the conjugal partnership
established by that marriage has not ceased. Nor has the should be reckoned as of the date it was thereby, which includes properties acquired by the husband
first wife lost or relinquished her status as putative heir of celebrated in 1935. This article speaks from the during its existence.
her husband under the new Civil Code, entitled to share in moment of the termination of the conjugal
his estate upon his death should she survive him. partnership (either by the dissolution of the The only just and equitable solution in this case would be to
Consequently, whether as conjugal partner in a still marriage or by the declaration of its nullity); and it recognize the right of the second wife to her husband, and
subsisting marriage or as such putative heir she has an would be self-contradictory to consider that the consider the other half as pertaining to the conjugal
interest in the husband's share in the property here in conjugal partnership was formed and terminated at partnership of the first marriage.
dispute, even if it was acquired during the second marriage, the same time and by the same act, that is, by the
of which interest she would be deprived if his share should celebration itself of the marriage. Colin y
WHEREFORE, the decision appealed from is reversed, and
be declared forfeited in favor of the second wife. Capitant2 comments on this provision as follows:
the complaint is dismissed, without pronouncement as to
costs.
There is a difference of opinion among the members of this Disuelven matrimonio y, por tanto la sociedad de
Court as to whether such resulting prejudice to the first wife gananciales, la muerte de uno de los conjuges y la
G.R. No. L-28093 January 30, 1971
is within the contemplation of the Spanish Civil Code when declaracion de nulidad.<äre||anº•1àw>
it decrees in general terms in Article 1417 that the spouse
who in bad faith has given cause for nullity (of the marriage) BASILIA BERDIN VDA. DE CONSUEGRA; JULIANA,
En caso de declaracion de nulidad, la sociedad de
shall have no share in the conjugal properties, considering PACITA, MARIA LOURDES, JOSE, JR., RODRIGO,
gananciales se extingue al ser declarado nulo el
that in the present case the first marriage has not been LINEDA and LUIS, all surnamed
matrimonio, es decir, en el momento en que sea
terminated and therefore likewise impresses the conjugal CONSUEGRA, petitioners-appellants,
firme la sentencia declarativa de la nulidad.
stamp of that marriage upon whatever properties are vs.
acquired during its existence. We believe, however, that it is GOVERNMENT SERVICE INSURANCE SYSTEM,
xxx xxx xxx COMMISSIONER OF PUBLIC HIGHWAYS, HIGHWAY
not necessary to resolve that question here inasmuch as
the facts do not call for the application of Article 1417. The DISTRICT ENGINEER OF SURIGAO DEL NORTE,
first paragraph of this Article states two causes for the It may thus be seen that if the nullity, or annulment, COMMISSIONER OF CIVIL SERVICE, and ROSARIO
termination of the conjugal partnership: (1) dissolution of the of the marriage is the basis for the application of DIAZ, respondents-appellees.
marriage and (2) declaration of nullity. Under the second Article 1417, there is need for a judicial declaration
paragraph of the same Article it is upon the termination of thereof, which of course contemplates an action Bernardino O. Almeda for petitioners-appellants.
the partnership by either of said causes that the forfeiture of for that purpose. In the instant case, however, the
the guilty spouse takes place. Now then, when did the conjugal partnership formed by the second
Binag and Arevalo, Jr. for respondent-appellee Government
conjugal partnership formed by virtue of the marriage of the marriage was dissolved by the death of the second
Service Insurance System.
defendant to the deceased Isidra Gomez terminate? wife; and there has been no judicial declaration of
Obviously when the marriage was dissolved by the latter's nullity except possibly in this very action, filed after
dissolution by death had taken place and when Office of the Solicitor General for other
death in 1958. By that time Article 1417 was no longer in
Article 1417 of the Spanish Civil Code was no respondents-appellees.
force, having been eliminated in the new Civil Code, which
took effect in 1950. The legal situation arising from these longer in force.
facts is that while insofar as the second wife was concerned,
she having acted in good faith, her marriage produced civil There is, to be sure, a statement of Manresa3 that
effects and gave rise, just the same, to the formation of a in case of nullity it is presumed, with respect to the ZALDIVAR, J.:
conjugal partnership wherein she was entitled to an equal spouse who acted in bad faith, that neither the
share upon dissolution,1 no action lies under Article 1417 marriage nor the conjugal partnership ever existed, Appeal on purely questions of law from the decision of the
for the forfeiture of the husband's share in her favor, much and hence such spouse has no right to a share in Court of First Instance of Surigao del Norte, dated March 7,
less in favor of her estate, with respect to which there are the conjugal properties; but this legal effect of such 1967, in its Special Proceeding No. 1720.
after all no children, but only collateral relatives, who are presumption derives from the premise that Article
entitled to succeed. 1417 is still in force, and in any event is of doubtful
The pertinent facts, culled from the stipulation of facts
application if it would be in derogation of and to the
submitted by the parties, are the following:
It would not do to say that since the second marriage, in this prejudice of the right of the other spouse of the first
case was void ab initio the application of Article 1417 marriage in the conjugal partnership formed
The late Jose Consuegra, at the time of his death, was Dissatisfied with the foregoing ruling and Berdin Vda. de Consuegra and her co-petitioners Juliana,
employed as a shop foreman of the office of the District apportionment made by the GSIS, Basilia Berdin Pacita, Maria Lourdes, Jose, Jr., Rodrigo, Lenida and Luis,
Engineer in the province of Surigao del Norte. In his lifetime, and her children1 filed on October 10, 1966 a all surnamed Consuegra, beneficiary and entitled to
Consuegra contracted two marriages, the first with herein petition for mandamus with preliminary injunction one-half (1/2) of the retirement benefit in the amount of Six
respondent Rosario Diaz, solemnized in the parish church in the Court of First Instance of Surigao, naming as Thousand Three Hundred Four Pesos and Fourty-Seven
of San Nicolas de Tolentino, Surigao, Surigao, on July 15, respondents the GSIS, the Commissioner of Centavos (P6,304.47) due to the deceased Jose
1937, out of which marriage were born two children, namely, Public Highways, the Highway District Engineer of Consuegra from the Government Service Insurance System
Jose Consuegra, Jr. and Pedro Consuegra, but both Surigao del Norte, the Commissioner of Civil or the amount of P3,152.235 to be divided equally among
predeceased their father; and the second, which was Service, and Rosario Diaz, praying that they them in the proportional amount of 1/16 each. Likewise, the
contracted in good faith while the first marriage was (petitioners therein) be declared the legal heirs and respondent Rosario Diaz Vda. de Consuegra is hereby
subsisting, with herein petitioner Basilia Berdin, on May 1, exclusive beneficiaries of the retirement insurance declared beneficiary and entitled to the other half of the
1957 in the same parish and municipality, out of which of the late Jose Consuegra, and that a writ of retirement benefit of the late Jose Consuegra or the amount
marriage were born seven children, namely, Juliana, Pacita, preliminary injunction be issued restraining the of P3,152.235. The case with respect to the Highway
Maria Lourdes, Jose, Rodrigo, Lenida and Luz, all implementation of the adjudication made by the District Engineer of Surigao del Norte is hereby ordered
surnamed Consuegra. GSIS. On October 26, 1966, the trial court issued dismissed.
an order requiring therein respondents to file their
Being a member of the Government Service Insurance respective answers, but refrained from issuing the Hence the present appeal by herein petitioners-appellants,
System (GSIS, for short) when Consuegra died on writ of preliminary injunction prayed for. On Basilia Berdin and her children.
September 26, 1965, the proceeds of his life insurance February 11, 1967, the parties submitted a
under policy No. 601801 were paid by the GSIS to petitioner stipulation of facts, prayed that the same be
It is the contention of appellants that the lower court erred in
Basilia Berdin and her children who were the beneficiaries admitted and approved and that judgment be
not holding that the designated beneficiaries in the life
named in the policy. Having been in the service of the rendered on the basis of the stipulation of facts. On
insurance of the late Jose Consuegra are also the exclusive
government for 22.5028 years, Consuegra was entitled to March 7, 1967, the court below rendered judgment,
beneficiaries in the retirement insurance of said deceased.
retirement insurance benefits in the sum of P6,304.47 the pertinent portions of which are quoted
In other words, it is the submission of appellants that
pursuant to Section 12(c) of Commonwealth Act 186 as hereunder:
because the deceased Jose Consuegra failed to designate
amended by Republic Acts 1616 and 3836. Consuegra did the beneficiaries in his retirement insurance, the appellants
not designate any beneficiary who would receive the This Court, in conformity with the foregoing who were the beneficiaries named in the life insurance
retirement insurance benefits due to him. Respondent stipulation of facts, likewise is in full accord with should automatically be considered the beneficiaries to
Rosario Diaz, the widow by the first marriage, filed a claim the parties with respect to the authority cited by receive the retirement insurance benefits, to the exclusion
with the GSIS asking that the retirement insurance benefits them in support of said stipulation and which is of respondent Rosario Diaz. From the arguments adduced
be paid to her as the only legal heir of Consuegra, herein-below cited for purposes of this judgment, by appellants in their brief We gather that it is their stand
considering that the deceased did not designate any to wit: that the system of life insurance and the system of
beneficiary with respect to his retirement insurance benefits. retirement insurance, that are provided for in
Petitioner Basilia Berdin and her children, likewise, filed a "When two women innocently and in good faith are Commonwealth Act 186 as amended, are simply
similar claim with the GSIS, asserting that being the legally united in holy matrimony to the same man, complementary to each other, or that one is a part or an
beneficiaries named in the life insurance policy of they and their children, born of said wedlock, will extension of the other, such that whoever is named the
Consuegra, they are the only ones entitled to receive the be regarded as legitimate children and each family beneficiary in the life insurance is also the beneficiary in the
retirement insurance benefits due the deceased Consuegra. be entitled to one half of the estate. Lao & Lao vs. retirement insurance when no such beneficiary is named in
Resolving the conflicting claims, the GSIS ruled that the Dee Tim, 45 Phil. 739; Estrella vs. Laong Masa, the retirement insurance.
legal heirs of the late Jose Consuegra were Rosario Diaz, Inc., (CA) 39 OG 79; Pisalbon vs. Bejec, 74 Phil.
his widow by his first marriage who is entitled to one-half, or 88. The contention of appellants is untenable.
8/16, of the retirement insurance benefits, on the one hand;
and Basilia Berdin, his widow by the second marriage and
WHEREFORE, in view of the above premises, this It should be noted that the law creating the Government
their seven children, on the other hand, who are entitled to
Court is of the opinion that the foregoing stipulation Service Insurance System is Commonwealth Act 186 which
the remaining one-half, or 8/16, each of them to receive an
of facts is in order and in accordance with law and was enacted by the National Assembly on November 14,
equal share of 1/16.
the same is hereby approved. Judgment, therefore, 1936. As originally approved, Commonwealth Act 186
is hereby rendered declaring the petitioner Basilia provided for the compulsory membership in the
Government Service Insurance System of all regularly and The gratuity is payable by the employer or office suspended because of the war, and the operation was
permanently appointed officials and employees of the concerned which is hereby authorized to provide resumed sometime in 1946. When Consuegra designated
government, considering as automatically insured on life all the necessary appropriation to pay the same from his beneficiaries in his life insurance he could not have
such officials and employees, and issuing to them the any unexpended items of appropriations. intended those beneficiaries of his life insurance as also the
corresponding membership policy under the terms and beneficiaries of his retirement insurance because the
conditions as provided in the Act.2 Elective or appointive officials and employees paid provisions on retirement insurance under the GSIS came
gratuity under this subsection shall be entitled to about only when Com. Act 186 was amended by Rep. Act
Originally, Commonwealth Act 186 provided for life the commutation of the unused vacation and sick 660 on June 16, 1951. Hence, it cannot be said that
insurance only. Commonwealth Act 186 was amended by leave, based on the highest rate received, which because herein appellants were designated beneficiaries in
Republic Act 660 which was enacted by the Congress of the they may have to their credit at the time of Consuegra's life insurance they automatically became the
Philippines on June 16, 1951, and, among others, the retirement. beneficiaries also of his retirement insurance. Rep. Act 660
amendatory Act provided that aside from the system of life added to Com. Act 186 provisions regarding retirement
insurance under the Government Service Insurance System insurance, which are Sections 11, 12, and 13 of Com. Act
Jose Consuegra died on September 26, 1965, and
there was also established the system of retirement 186, as amended. Subsection (b) of Section 11 of Com. Act
so at the time of his death he had acquired rights
insurance. Thus, We will note in Republic Act 660 that there 186, as amended by Rep. Act 660, provides as follows:
under the above-quoted provisions of subsection
is a chapter on life insurance and another chapter on (c) of Section 12 of Com. Act 186, as finally
retirement insurance. 3 Under the chapter on life insurance amended by Rep. Act 3836 on June 22, 1963. (b) Survivors benefit. — Upon death before he becomes
are sections 8, 9 and 10 of Commonwealth Act 186, as When Consuegra died on September 26, 1965, he eligible for retirement, his beneficiaries as recorded in the
amended; and under the chapter on retirement insurance had to his credit 22.5028 years of service in the application for retirement annuity filed with the System shall
are sections 11, 12, 13 and 13-A. On May 31, 1957, government, and pursuant to the above-quoted be paid his own premiums with interest of three per centum
Republic Act 1616 was enacted by Congress, amending provisions of subsection (c) of Section 12 of Com. per annum, compounded monthly. If on his death he is
section 12 of Commonwealth Act 186 as amended by Act 186, as amended, on the basis of the highest eligible for retirement, then the automatic retirement annuity
Republic Act 660, by adding thereto two new subsections, rate of salary received by him which was P282.83 or the annuity chosen by him previously shall be paid
designated as subsections (b) and (c). This subsection (c) per month, he was entitled to receive retirement accordingly.
of section 12 of Commonwealth Act 186, as amended by insurance benefits in the amount of P6,304.47.
Republic Acts 660, 1616 and 3096, was again amended by This is the retirement benefits that are the subject The above-quoted provisions of subsection (b) of Section
Republic Act 3836 which was enacted on June 22, of dispute between the appellants, on the one 11 of Commonwealth Act 186, as amended by Rep. Act 660,
1963.lâwphî1.ñèt The pertinent provisions of subsection (c) hand, and the appellee Rosario Diaz, on the other, clearly indicate that there is need for the employee to file an
of Section 12 of Commonwealth Act 186, as thus amended in the present case. The question posed is: to application for retirement insurance benefits when he
and reamended, read as follows: whom should this retirement insurance benefits of becomes a member of the GSIS, and he should state in his
Jose Consuegra be paid, because he did not, or application the beneficiary of his retirement insurance.
(c) Retirement is likewise allowed to a member, regardless failed to, designate the beneficiary of his Hence, the beneficiary named in the life insurance does not
of age, who has rendered at least twenty years of service. retirement insurance? automatically become the beneficiary in the retirement
The benefit shall, in addition to the return of his personal insurance unless the same beneficiary in the life insurance
contributions plus interest and the payment of the If Consuegra had 22.5028 years of service in the is so designated in the application for retirement insurance.
corresponding employer's premiums described in government when he died on September 26, 1965,
subsection (a) of Section 5 hereof, without interest, be only it follows that he started in the government service Section 24 of Commonwealth Act 186, as amended by Rep.
a gratuity equivalent to one month's salary for every year of sometime during the early part of 1943, or before Act 660, provides for a life insurance fund and for a
service, based on the highest rate received, but not to 1943. In 1943 Com. Act 186 was not yet amended, retirement insurance fund. There was no such provision in
exceed twenty-four months; Provided, That the retiring and the only benefits then provided for in said Com. Com. Act 186 before it was amended by Rep. Act 660. Thus,
officer or employee has been in the service of the said Act 186 were those that proceed from a life subsections (a) and (b) of Section 24 of Commonwealth Act
employer or office for at least four years, immediately insurance. Upon entering the government service 186, as amended by Rep. Act 660, partly read as follows:
preceding his retirement. Consuegra became a compulsory member of the
GSIS, being automatically insured on his life, (a) Life insurance fund. — This shall consist of all premiums
xxx xxx xxx pursuant to the provisions of Com. Act 186 which for life insurance benefit and/or earnings and savings
was in force at the time. During 1943 the operation therefrom. It shall meet death claims as they may arise or
of the Government Service Insurance System was such equities as any member may be entitled to, under the
conditions of his policy, and shall maintain the required It is Our view, therefore, that the respondent GSIS WHEREFORE, the decision appealed from is affirmed, with
reserves to the end of guaranteeing the fulfillment of the life had correctly acted when it ruled that the proceeds costs against petitioners-appellants. It is so ordered.
insurance contracts issued by the System ... of the retirement insurance of the late Jose
Consuegra should be divided equally between his A.M. No. 58 June 2, 1977
(b) Retirement insurance fund. — This shall consist of all first living wife Rosario Diaz, on the one hand, and
contributions for retirement insurance benefit and of his second wife Basilia Berdin and his children by
PEDRO ODAYAT, complainant,
earnings and savings therefrom. It shall meet annuity her, on the other; and the lower court did not
vs.
payments and establish the required reserves to the end of commit error when it confirmed the action of the
DEMETRIO AMANTE, respondent.
guaranteeing the fulfillment of the contracts issued by the GSIS, it being accepted as a fact that the second
System. ... marriage of Jose Consuegra to Basilia Berdin was
contracted in good faith. The lower court has
correctly applied the ruling of this Court in the case
Thus, We see that the GSIS offers two separate and distinct
of Lao, et al. vs. Dee Tim, et al., 45 Phil. 739 as ANTONIO, J.:
systems of benefits to its members — one is the life
cited in the stipulation of facts and in the decision
insurance and the other is the retirement insurance. These
appealed from.5 In the recent case of Gomez vs. In a verified amended letter-complaint dated March 10,
two distinct systems of benefits are paid out from two
Lipana, L-23214, June 30, 1970,6 this Court, in 1973,1 Pedro Odayat charged Atty. Demetrio Z. Amante,
distinct and separate funds that are maintained by the
construing the rights of two women who were Clerk of Court, Court of First Instance, Branch IX, Basey,
GSIS.
married to the same man — a situation more or Samar, with oppression, immorality and falsification of a
less similar to the case of appellant Basilia Berdin public document. 2
In the case of the proceeds of a life insurance, the same are and appellee Rosario Diaz — held "that since the
paid to whoever is named the beneficiary in the life defendant's first marriage has not been dissolved
insurance policy. As in the case of a life insurance provided Briefly stated, complainant's basic allegations are: (1) that
or declared void the conjugal partnership
for in the Insurance Act (Act 2427, as amended), the respondent grabbed a portion of complainant's land, and,
established by that marriage has not ceased. Nor
beneficiary in a life insurance under the GSIS may not when this latter resented, the former arrogantly challenged
has the first wife lost or relinquished her status as
necessarily be a heir of the insured. The insured in a life the complainant to bring the matter to court; (2) that
putative heir of her husband under the new Civil
insurance may designate any person as beneficiary unless respondent is cohabiting with one Beatriz Jornada, with
Code, entitled to share in his estate upon his death
disqualified to be so under the provisions of the Civil whom he begot many children, even while his spouse
should she survive him. Consequently, whether as
Code.4 And in the absence of any beneficiary named in the Filomena Abella is still alive; and (3) that respondent,
conjugal partner in a still subsisting marriage or as
life insurance policy, the proceeds of the insurance will go to although married, falsely represented his status as single in
such putative heir she has an interest in the
the estate of the insured. the information sheet be submitted in connection with his
husband's share in the property here in dispute.... "
appointment to his present position as Clerk of Court.
And with respect to the right of the second wife,
Retirement insurance is primarily intended for the benefit of this Court observed that although the second
the employee — to provide for his old age, or incapacity, marriage can be presumed to be void ab initio as it After respondent Demetrio Amante had submitted his
after rendering service in the government for a required was celebrated while the first marriage was still letter-comment dated April 24, 1973, 3 which was
number of years. If the employee reaches the age of subsisting, still there is need for judicial declaration considered as his answer to the amended complaint, this
retirement, he gets the retirement benefits even to the of such nullity. And inasmuch as the conjugal Court, in its minute resolution of July 16, 1974, 4 referred
exclusion of the beneficiary or beneficiaries named in his partnership formed by the second marriage was this Administrative Matter No. P-58 to the Executive Judge
application for retirement insurance. The beneficiary of the dissolved before judicial declaration of its nullity, of the Court of First Instance, Branch I, Catbalogan, Samar,
retirement insurance can only claim the proceeds of the "[t]he only lust and equitable solution in this case for investigation, report and recommendation, and the
retirement insurance if the employee dies before retirement. would be to recognize the right of the second wife matter was docketed therein as Administrative Case No.
If the employee failed or overlooked to state the beneficiary to her share of one-half in the property acquired by 264. The charges were investigated by District Judge
of his retirement insurance, the retirement benefits will her and her husband and consider the other half Segundo M. Zosa of said Court. After appropriate
accrue to his estate and will be given to his legal heirs in as pertaining to the conjugal partnership of the first proceedings, Judge Zosa submitted to this Court his Report
accordance with law, as in the case of a life insurance if no marriage." and Recommendation dated December 3,1974. 5
beneficiary is named in the insurance policy.
1. Oppression. — In the course of formal investigation on
August 26, 1974 before Judge Zosa, complainant
acquiesced to the dropping of this charge of oppression
against respondent, inasmuch as the issue involved therein any communication from Filomena Abella, much
refers to a boundary dispute between the complainant and less knew of her whereabouts. Hermin E. Arceo for Maria Clemente.
the respondent and admittedly being more properly a cause
for a civil action. 6 Hence, the scope of the investigation by To rebut the charge of immorality, respondent The Solicitor General for Respondents.
Judge Zosa is limited to the other two charges. presented in evidence the certification dated
September 12, 1974 of David C. Jacobe, the Local
2. Immorality. — To prove this charge of immorality against Civil Registrar of Pateros, Rizal 15 attesting that, in
SYLLABUS
respondent, complainant Pedro Odayat testified and accordance with the Register of Marriages in his
presented Exhibits "A" to "E", to the effect that respondent office, Filomena Abella was married to one Eliseo
and Filomena Abella were married in Tacloban City on Portales on February 16, 1948. Respondent's
October 16, 1948 before Judge Eugenio Brillo (then Justice contention is that his marriage with Filomena 1. REMEDIAL LAW; SPECIAL PROCEEDINGS; ACTION
of the Peace of Tacloban, Leyte; 7 ) that they had one son, Abella was void ab initio, because of her previous FOR JUDICIAL DECLARATION AS THE SURVIVING
who was born on August 23, 1949 and baptized on October marriage with said Eliseo Portales. SPOUSE, A PROPER REMEDY, THOUGH THE
1, 1949 by the name of Romeo Amante, in the Sto. Nino ULTIMATE OBJECT IS CORRECTION OF ENTRY
Church, Tacloban City, by Rev. Fr. Magdaleno Agnes; 8 that The Investigator finds for the respondent and CONTEMPLATED IN ARTICLE 412 OF THE CIVIL CODE
he came to know Filomena Abella, who is a native of Sta. recommends his exoneration from this charge. AND RULE 108 OF THE RULES OF COURT. — Although
Rita, Samar, only after her marriage to the respondent when Indeed, there is no question that Filomena Abella's petitioner’s ultimate objective is the correction of entry
they took up their residence for five years in Basey, Samar; marriage with the respondent was void ab contemplated in Article 412 of the Civil Code and Rule 108
that he did not know if Filomena Abella was still single when initio under Article 80 [4] of the New Civil code, and of the Rules of Court, she initially seeks a judicial
she married the respondent; that long before he filed his no judicial decree is necessary to establish the declaration that she is the lawful surviving spouse of the
complaint against respondent on March 10, 1973, he came invalidity of void marriages. 16 deceased, Amado, in order to lay the basis for the
to know that the respondent and one Beatriz Jornado were correction of the entry in the death certificate of said
living as husband and wife in Basey, Samar; that they had deceased. The suit below is a proper remedy. It is of an
3. Falsification of a This document. — The
several children, two of whom are Maria Felisa J. Amante, adversary character as contrasted to a mere summary
Investigator found that the complainant failed to
who was born on April 12, 1967, as per certified true copy of proceeding. A claim of right is asserted against one who
prove this charge. Contrary to the allegation of the
the Certificate of Birth of said child, 9 duly signed and issued has an interest in contesting it. Private respondent, as the
complainant, the document in question, 17 shows
on May 7, 1973 by Perfecto Cabuquit, the Local Civil individual most affected, is a party defendant, and has
that the respondent actually placed in "Item 6. Civil
Registrar, 10 and Alma Amante y Jornada, who was born on appeared to contest the petition and defend her interests.
Status" therein the word "Married". 18
April 8, 1965 and baptized on July 5, 1965, as per The Local Civil Registrar is also a party defendant.
Certificate of Baptism, duly signed and issued on March 6,
1973 by the Parish Priest, Rev. Fr. Jose M. Lentejas; 11 and In view of the foregoing, We find that the
2. ID.; ID.; REQUIRED PUBLICATION UNDER RULE 108,
that one of the reasons why he filed his complaint against recommendation of the Investigator is in
RULES OF COURT NOT ABSOLUTELY NECESSARY
the respondent was because of their land dispute. accordance with law and the evidence on record.
WHERE NO OTHER PARTIES ARE INVOLVED. — The
publication required by the Court below pursuant to Rule
On the other hand, respondent Demetrio Amante testified, WHEREFORE, respondent Demetrio Amante is 108 of the Rules of Court is not absolutely necessary for no
in his behalf, and presented Atty. Demosthenes Duquilla, as hereby exonerated from the charges filed against other parties are involved. After all, publication is required to
well as Exhibits "1" and "2". Respondent admits his him by complainant. Let a copy of this decision be bar indifferently all who might be minded to make an
marriage with Filomena Abella on October 16, 1948.12 He attached to his personal record, objection of any sort against the right sought to be
also admits that he has been living with Beatriz Jornada, established. Besides, even assuming that this is a
whom he married on April 4, 1964 during a religious revival [G.R. No. L-43905. May 30, 1983.] proceeding under Rule 108, it was the Court that was called
in Almagro, Samar, before Rev. Fr. John Belly, a upon to order the publication, but it did not. In the ultimate
Franciscan Missionary, 13 and with whom he begot six (6) SERAFIA G. TOLENTINO, Petitioner, v. HON. analysis, Courts are not concerned so much with the form of
children.14 Respondent, however, claims he was coerced EDGARDO L. PARAS, MARIA CLEMENTE and actions as with their substance.
into marrying Filomena Abella, unaware that she was THE LOCAL CIVIL REGISTRAR OF
already married to another man, and they separated in 1949 PAOMBONG, BULACAN, Respondents. 3. ID.; EVIDENCE; PLEA OF GUILT IN BIGAMY; NO
after Filomena Abella told him of her previous marriage; that BETTER PROOF OF THE EXISTENCE OF MARRIAGE
from 1949 to 1964, the respondent did not hear or received Amelita G. Tolentino for Petitioner. THAN THE ADMISSION BY THE ACCUSED. —
Considering that Amado, upon his own plea, was convicted subsisting (Annex "A", Petition).chanrobles law "In view of the above dismissal, all other motions in this
for Bigamy, that sentence furnishes the necessary proof of library case are hereby considered MOOT and ACADEMIC.
the marital status of petitioner and the deceased. There is
no better proof of marriage than the admission by the Petitioner charged Amado with Bigamy in Criminal "SO ORDERED." 1
accused of the existence of such marriage. The second Case No. 2768 of the Court of First Instance of
marriage that he contracted with private respondent during Bulacan, Branch II, which Court, upon Amado’s Thus, petitioner’s present recourse mainly challenging the
the lifetime of his first spouse is null and void from the plea of guilty, sentenced him to suffer the grounds relied upon by respondent Court in ordering
beginning and of no force and effect. No judicial decree is corresponding penalty. After Amado had served dismissal.
necessary to establish the invalidity of a void marriage. It the prison sentence imposed on him, he continued
can be safely concluded, then, without need of further proof to live with private respondent until his death on We rule for Petitioner.
nor remand to the Court below, that private respondent is July 25, 1974. His death certificate carried the
not the surviving spouse of the deceased Amado, but entry "Name of Surviving Spouse — Maria First, for the remedy. Although petitioner’s ultimate objective
petitioner. Rectification of the erroneous entry in the records Clemente.." is the collection of entry contemplated in Article 412 of the
of the Local Civil Registrar may, therefore, be validly made. Civil Code and Rule 108 of the Rules of Court, she initially
In Special Proceedings No. 1587-M for Correction seeks a judicial declaration that she is the lawful surviving
4. ID.; ID.; PRESUMPTION THAT ENTRIES IN PUBLIC of Entry, petitioner sought to correct the name of spouse of the deceased, Amado, in order to lay the basis for
DOCUMENTS SUCH AS DEATH AND BIRTH the surviving spouse in the death certificate from the correction of the entry in the death certificate of said
CERTIFICATES ARE CORRECT, DISPUTABLE. — In fine, "Maria Clemente" to "Serafia G. Tolentino", her deceased. The suit below is a proper remedy. It is of an
since there is no question regarding the invalidity of name. The lower Court dismissed the petition "for adversary character as contrasted to a mere summary
Amado’s second marriage with private respondent and that lack of the proper requisites under the law" and proceeding. A claim of right is asserted against one who
the entry made in the corresponding local register is thereby indicated the need for a more detailed proceeding. has an interest in contesting it. Private respondent, as the
rendered false, it may be corrected. While documents, such individual most affected; is a party defendant, and has
as death and birth certificates, are public and entries therein Conformably thereto, petitioner filed the case appeared to contest the petition and defend her interests.
are presumed to be correct, such presumption is merely below against private respondent and the Local The Local Civil Registrar is also a party defendant. The
disputable and will have to yield to more positive evidence Civil Registrar of Paombong, Bulacan, for her publication required by the Court below pursuant to Rule
establishing their inaccuracy. declaration as the lawful surviving spouse, and the 108 of the Rules of Court is not absolutely necessary for no
correction of the death certificate of Amado. In an other parties are involved. After all, publication is required to
Order, dated October 21, 1975, respondent Court, bar indifferently all who might be minded to make an
upon private respondent’s instance, dismissed the objection of any sort against the right sought to be
DECISION case, stating:jgc:chanrobles.com.ph established. 2 Besides, even assuming that this is a
proceeding under Rule 108, it was the Court that was called
"The Motion to Dismiss filed by the defendants in upon to order the publication, 3 but it did not. In the ultimate
this case, thru counsel Atty. Hermin E. Arceo, for analysis, Courts are not concerned so much with the form of
MELENCIO-HERRERA, J.:
the reasons therein mentioned, is hereby actions as with their substance. 4
GRANTED. Further: (1) the correction of the entry
in the Office of the Local Civil Registrar is not the Second, for the merits. Considering that Amado, upon his
The reversal of respondent Court’s Order, dismissing proper remedy because the issue involved is own plea, was convicted for Bigamy, that sentence
petitioner’s suit for her "declaration . . . as the lawful marital relationship; (2) the Court has not acquired furnishes the necessary proof of the marital status of
surviving spouse of deceased Amado Tolentino and the proper jurisdiction because as prescribed under petitioner and the deceased. There is no better proof of
correction of the death certificate of the same", is sought in Art. 108, read together with Art. 412 of the Civil marriage than the admission by the accused of the
this Petition for Review on Certiorari. Code — publication is needed in a case like this, existence of such marriage. 5 The second marriage that he
and up to now, there has been no such publication; contracted with private respondent during the lifetime of his
The records disclose that Amado Tolentino had contracted and (3) in a sense, the subject matter of this case first spouse is null and void from the beginning and of no
a second marriage with private respondent herein, Maria has been aptly discussed in Special Proceeding force and effect. 6 No judicial decree is necessary to
Clemente, at Paombong, Bulacan, on November 1, 1948 No. 1587-M, which this Court has already establish the invalidity of a void marriage. 7 It can be safely
(Annex "C", Petition), while his marriage with petitioner, dismissed, also for lack of the proper requisites concluded, then, without need of further proof nor remand to
Serafia G. Tolentino, celebrated on July 31, 1943, was still under the law. the Court below, that private respondent is not the surviving
spouse of the deceased Amado, but petitioner. Rectification
of the erroneous entry in the records of the Local Civil 1. REMEDIAL LAW; SPECIAL PROCEEDINGS; accused of the existence of such marriage. The second
Registrar may, therefore, be validly made.chanrobles.com : ACTION FOR JUDICIAL DECLARATION AS THE marriage that he contracted with private respondent during
virtual law library SURVIVING SPOUSE, A PROPER REMEDY, the lifetime of his first spouse is null and void from the
THOUGH THE ULTIMATE OBJECT IS beginning and of no force and effect. No judicial decree is
Having arrived at the foregoing conclusion, the other issues CORRECTION OF ENTRY CONTEMPLATED IN necessary to establish the invalidity of a void marriage. It
raised need no longer be discussed. ARTICLE 412 OF THE CIVIL CODE AND RULE can be safely concluded, then, without need of further proof
108 OF THE RULES OF COURT. — Although nor remand to the Court below, that private respondent is
In fine, since there is no question regarding the invalidity of petitioner’s ultimate objective is the correction of not the surviving spouse of the deceased Amado, but
Amado’s second marriage with private respondent and that entry contemplated in Article 412 of the Civil Code petitioner. Rectification of the erroneous entry in the records
the entry made in the corresponding local register is thereby and Rule 108 of the Rules of Court, she initially of the Local Civil Registrar may, therefore, be validly made.
rendered false, it may be corrected. 8 While documents, seeks a judicial declaration that she is the lawful
such as death and birth certificates, are public and entries surviving spouse of the deceased, Amado, in order 4. ID.; ID.; PRESUMPTION THAT ENTRIES IN PUBLIC
therein are presumed to be correct, such presumption is to lay the basis for the correction of the entry in the DOCUMENTS SUCH AS DEATH AND BIRTH
merely disputable and will have to yield to more positive death certificate of said deceased. The suit below CERTIFICATES ARE CORRECT, DISPUTABLE. — In fine,
evidence establishing their inaccuracy. 9 is a proper remedy. It is of an adversary character since there is no question regarding the invalidity of
as contrasted to a mere summary proceeding. A Amado’s second marriage with private respondent and that
WHEREFORE, the Order, dated October 21, 1975, of claim of right is asserted against one who has an the entry made in the corresponding local register is thereby
respondent Court is hereby set aside and petitioner, Serafia interest in contesting it. Private respondent, as the rendered false, it may be corrected. While documents, such
G. Tolentino, hereby declared the surviving spouse of the individual most affected, is a party defendant, and as death and birth certificates, are public and entries therein
deceased Amado Tolentino. Let the corresponding has appeared to contest the petition and defend are presumed to be correct, such presumption is merely
correction be made in the latter’s death certificate in the her interests. The Local Civil Registrar is also a disputable and will have to yield to more positive evidence
records of the Local Civil Registrar of Paombong, Bulacan. party defendant. establishing their inaccuracy.

No costs. 2. ID.; ID.; REQUIRED PUBLICATION UNDER

RULE 108, RULES OF COURT NOT
SO ORDERED. ABSOLUTELY NECESSARY WHERE NO DECISION
OTHER PARTIES ARE INVOLVED. — The
publication required by the Court below pursuant
to Rule 108 of the Rules of Court is not absolutely
MELENCIO-HERRERA, J.:
necessary for no other parties are involved. After
[G.R. No. L-43905. May 30, 1983.] all, publication is required to bar indifferently all
who might be minded to make an objection of any
SERAFIA G. TOLENTINO, Petitioner, v. HON. EDGARDO sort against the right sought to be established. The reversal of respondent Court’s Order, dismissing
L. PARAS, MARIA CLEMENTE and THE LOCAL CIVIL Besides, even assuming that this is a proceeding petitioner’s suit for her "declaration . . . as the lawful
REGISTRAR OF PAOMBONG, BULACAN, Respondents. under Rule 108, it was the Court that was called surviving spouse of deceased Amado Tolentino and the
upon to order the publication, but it did not. In the correction of the death certificate of the same", is sought in
Amelita G. Tolentino for Petitioner. ultimate analysis, Courts are not concerned so this Petition for Review on Certiorari.
much with the form of actions as with their
Hermin E. Arceo for Maria Clemente. substance. The records disclose that Amado Tolentino had contracted
a second marriage with private respondent herein, Maria
The Solicitor General for Respondents. 3. ID.; EVIDENCE; PLEA OF GUILT IN BIGAMY; Clemente, at Paombong, Bulacan, on November 1, 1948
NO BETTER PROOF OF THE EXISTENCE OF (Annex "C", Petition), while his marriage with petitioner,
MARRIAGE THAN THE ADMISSION BY THE Serafia G. Tolentino, celebrated on July 31, 1943, was still
ACCUSED. — Considering that Amado, upon his subsisting (Annex "A", Petition).chanrobles law library
SYLLABUS own plea, was convicted for Bigamy, that sentence
furnishes the necessary proof of the marital status Petitioner charged Amado with Bigamy in Criminal Case No.
of petitioner and the deceased. There is no better 2768 of the Court of First Instance of Bulacan, Branch II,
proof of marriage than the admission by the
which Court, upon Amado’s plea of guilty, sentenced him to First, for the remedy. Although petitioner’s ultimate Having arrived at the foregoing conclusion, the other issues
suffer the corresponding penalty. After Amado had served objective is the collection of entry contemplated in raised need no longer be discussed.
the prison sentence imposed on him, he continued to live Article 412 of the Civil Code and Rule 108 of the
with private respondent until his death on July 25, 1974. His Rules of Court, she initially seeks a judicial In fine, since there is no question regarding the invalidity of
death certificate carried the entry "Name of Surviving declaration that she is the lawful surviving spouse Amado’s second marriage with private respondent and that
Spouse — Maria Clemente.." of the deceased, Amado, in order to lay the basis the entry made in the corresponding local register is thereby
for the correction of the entry in the death rendered false, it may be corrected. 8 While documents,
In Special Proceedings No. 1587-M for Correction of Entry, certificate of said deceased. The suit below is a such as death and birth certificates, are public and entries
petitioner sought to correct the name of the surviving proper remedy. It is of an adversary character as therein are presumed to be correct, such presumption is
spouse in the death certificate from "Maria Clemente" to contrasted to a mere summary proceeding. A merely disputable and will have to yield to more positive
"Serafia G. Tolentino", her name. The lower Court claim of right is asserted against one who has an evidence establishing their inaccuracy. 9
dismissed the petition "for lack of the proper requisites interest in contesting it. Private respondent, as the
under the law" and indicated the need for a more detailed individual most affected; is a party defendant, and WHEREFORE, the Order, dated October 21, 1975, of
proceeding. has appeared to contest the petition and defend respondent Court is hereby set aside and petitioner, Serafia
her interests. The Local Civil Registrar is also a G. Tolentino, hereby declared the surviving spouse of the
Conformably thereto, petitioner filed the case below against party defendant. The publication required by the deceased Amado Tolentino. Let the corresponding
private respondent and the Local Civil Registrar of Court below pursuant to Rule 108 of the Rules of correction be made in the latter’s death certificate in the
Paombong, Bulacan, for her declaration as the lawful Court is not absolutely necessary for no other records of the Local Civil Registrar of Paombong, Bulacan.
surviving spouse, and the correction of the death certificate parties are involved. After all, publication is
of Amado. In an Order, dated October 21, 1975, respondent required to bar indifferently all who might be No costs.
Court, upon private respondent’s instance, dismissed the minded to make an objection of any sort against
case, stating:jgc:chanrobles.com.ph the right sought to be established. 2 Besides, even SO ORDERED.
assuming that this is a proceeding under Rule 108,
"The Motion to Dismiss filed by the defendants in this case, it was the Court that was called upon to order the
thru counsel Atty. Hermin E. Arceo, for the reasons therein publication, 3 but it did not. In the ultimate analysis,
mentioned, is hereby GRANTED. Further: (1) the correction Courts are not concerned so much with the form of G.R. No. L-53703 August 19, 1986
of the entry in the Office of the Local Civil Registrar is not actions as with their substance. 4
the proper remedy because the issue involved is marital LILIA OLIVA WIEGEL, petitioner,
relationship; (2) the Court has not acquired proper Second, for the merits. Considering that Amado, vs.
jurisdiction because as prescribed under Art. 108, read upon his own plea, was convicted for Bigamy, that THE HONORABLE ALICIA V. SEMPIO-DIY (as presiding
together with Art. 412 of the Civil Code — publication is sentence furnishes the necessary proof of the judge of the Juvenile and Domestic Relations Court of
needed in a case like this, and up to now, there has been no marital status of petitioner and the deceased. Caloocan City) and KARL HEINZ WIEGEL, respondents.
such publication; and (3) in a sense, the subject matter of There is no better proof of marriage than the
this case has been aptly discussed in Special Proceeding admission by the accused of the existence of such
Dapucanta, Dulay & Associates for petitioner.
No. 1587-M, which this Court has already dismissed, also marriage. 5 The second marriage that he
for lack of the proper requisites under the law. contracted with private respondent during the
lifetime of his first spouse is null and void from the Siguion Reyna, Montecillo and Ongsiako Law Office for
"In view of the above dismissal, all other motions in this beginning and of no force and effect. 6 No judicial private respondent.
case are hereby considered MOOT and ACADEMIC. decree is necessary to establish the invalidity of a
void marriage. 7 It can be safely concluded, then,
"SO ORDERED." 1 without need of further proof nor remand to the
Court below, that private respondent is not the PARAS, J.:
Thus, petitioner’s present recourse mainly challenging the surviving spouse of the deceased Amado, but
grounds relied upon by respondent Court in ordering petitioner. Rectification of the erroneous entry in
In an action (Family Case No. 483) filed before the erstwhile
dismissal. the records of the Local Civil Registrar may,
Juvenile and Domestic Relations Court of Caloocan City,
therefore, be validly made.chanrobles.com : virtual
herein respondent Karl Heinz Wiegel (plaintiff therein)
We rule for Petitioner. law library
asked for the declaration of Nullity of his marriage
(celebrated on July, 1978 at the Holy Catholic Apostolic consequently, her marriage to respondent is VOID Yap entitled to inherit his estate and dismissing the
Christian Church Branch in Makati, Metro Manila) with (Art. 80, Civil Code). opposition filed by the private respondents. The dispositive
herein petitioner Lilia Oliva Wiegel (Lilia, for short, and portion of the decision on appeal reads:
defendant therein) on the ground of Lilia's previous existing There is likewise no need of introducing evidence
marriage to one Eduardo A. Maxion, the ceremony having about the existing prior marriage of her first WHEREFORE, the decision appealed from is hereby set
been performed on June 25, 1972 at our Lady of Lourdes husband at the time they married each other, for aside and, after a complete and correct inventory is
Church in Quezon City. Lilia, while admitting the existence then such a marriage though void still needs returned by the administratrix, the entire estate of the
of said prior subsisting marriage claimed that said marriage according to this Court a judicial declaration 1 of deceased Maning Yap shall be divided into two equal parts,
was null and void, she and the first husband Eduardo A. such fact and for all legal intents and purposes she one-half (1/2) corresponding to the petitioner Talina
Maxion having been allegedly forced to enter said marital would still be regarded as a married woman at the Bianong and her children Shirley Yap and Jaime Yap and
union. In the pre-trial that ensued, the issue agreed upon by time she contracted her marriage with respondent the other half corresponding to the oppositors Nancy J. Yap
both parties was the status of the first marriage (assuming Karl Heinz Wiegel); accordingly, the marriage of and her children Maning Yap, Jr., Julia Yap, Jasmin Yap
the presence of force exerted against both parties): was petitioner and respondent would be regarded and Samuel Yap, without pronouncement as to costs.
said prior marriage void or was it merely voidable? VOID under the law.
Contesting the validity of the pre-trial order, Lilia asked the
Maning Yap, during his lifetime married twice: first, to Talina
respondent court for an opportunity to present evidence-
WHEREFORE, this petition is hereby DISMISSED, Bianong in 1939 and second, to Nancy Yap on December
for lack of merit, and the Orders complained of are 11, 1948.
(1) that the first marriage was vitiated by force exercised hereby AFFIRMED. Costs against petitioner.
upon both her and the first husband; and
Maning Yap and Talina Bianong were married at Bara-as
SO ORDERED. Plantation, Malabang, Lanao del Sur, in accordance with
(2) that the first husband was at the time of the marriage in the Muslim rites and practices prescribed by the Islam
1972 already married to someone else. religion professed by both of them. Immediately, after the
G.R. No. L-40003 October 28, 1986
marriage, the couple lived in the house of the parents of
Respondent judge ruled against the presentation of Maning Yap at the poblacion of Malabang, Lanao del Sur.
SHIRLEY YAP, in her own behalf and in her
evidence because the existence of force exerted on both Out of the marriage, four children were born; two of them
capacity as Administratrix of the estate of
parties of the first marriage had already been agreed upon. died in infancy during the Japanese occupation, while the
MANING YAP, JAIME YAP, and TALINA
Hence, the present petition for certiorari assailing the two others are petitioners Shirley Yap and Jaime Yap.
BIANONG VDA. DE YAP, petitioners,
following Orders of therespondent Judge-
vs.
COURT OF APPEALS, NANCY J. YAP, MANING While the first marriage was still subsisting, Maning Yap
(1) the Order dated March 17, 1980 in which the parties YAP, JR., JULIA YAP, JASMIN YAP, and married Nancy J. Yap on December 11, 1948 in a civil
were compelled to submit the case for resolution based on SAMUEL YAP, respondents. ceremony performed by District Judge Juan Sarenas of the
"agreed facts;" and Court of First Instance of Cotabato. Nancy Yap entered into
the marriage in the belief that Maning Yap was not a
Francisco Villanueva for petitioners.
(2) the Order dated April 14, 1980, denying petitioner's married man. They had four children, namely respondents
motion to allow her to present evidence in her favor. Maning Yap, Jr., Julia Yap, Jasmin Yap and Samuel Yap.
Ramon Tuangco for respondents. On February 21, 1964, Maning Yap died in Piagapo, Lanao
del Sur, in the crash of an airplane of the Philippine Air
We find the petition devoid of merit.
Lines. At the time of his death he, therefore, had two
families living separately about 80 kilometers apart.
There is no need for petitioner to prove that her first
GUTIERREZ, JR., J.:
marriage was vitiated by force committed against both
On March 3, 1964, Talina Bianong Vda. de Yap filed
parties because assuming this to be so, the marriage will
This is a petition to review the decision of the Court Special Proceeding No. 1334 (Intestate Estate of Maning
not be void but merely viodable (Art. 85, Civil Code), and
of Appeals which set aside the earlier decision of Yap) before the Court of First Instance of Lanao del Sur,
therefore valid until annulled. Since no annulment has yet
the then Court of First Instance of Lanao del Sur in seeking the issuance of letters of administration for the
been made, it is clear that when she married respondent
Special Proceeding No. 1334 (R-61), declaring the estate of Maning Yap. Among other things, the petition
she was still validly married to her first husband,
petitioners as the legal heirs of the late Maning alleged that Maning Yap left personal and real properties all
located at Malabang, Lanao del Sur, with an approximate The opposition and claim of the opposition is lasted, under the Spanish law, are entitled to all the rights of
value of P100,000.00. hereby dismissed without costs. a legitimate wife and children. The common law allowing
none of the incidents of a true marriage to follow another
The petition was opposed by Nancy J. Yap and her minor Upon appeal by Nancy Yap and her children, the marriage entered into during the continuance of a first, was
children on the ground that she is the legitimate widow of appellate court reversed and set aside the decision. early found to work a great injustice upon the innocent
Maning Yap and that Maning Yap, Jr., Julia Yap, Jasmin As stated earlier, the Court of Appeals ruled that parties to the second marriage, and specially upon the
Yap and Samuel Yap, all minors, are their legitimate the estate of Maning Yap should be equally offspring of such second marriage. ...
children. divided into two equal parts: one-half (1/2) to
Talina Bianong and her children and the other half The petitioners now contend that Maning Yap died in 1964
Talina Bianong was initially appointed special administratrix (1/2) to Nancy Yap and her children. when the New Civil Code had already super ed the old
of the intestate estate of Maning Yap. However, after a Spanish Civil Code. They state that pursuant to Article 2263
formal hearing and on recommendation of Talina, the lower The appellate court applied the ruling in Lao of the New Civil Code, the distribution of the estate of
court appointed Shirley Yap as regular administratrix of the and Lao v. Dee Tim (45 Phil. 739). The facts in the Maning Yap should be in accordance with, the new codal
intestate estate of Maning Yap. cited case are similar to the case at bar in that Yap provisions and not the Leyes Partidas, which is an old law
Siong in his lifetime contracted two marriages; first no longer applicable,
Various claims filed by the creditors against the intestate to Dee Tim on September 14, 1893 in China with
estate of Maning Yap were duly approved by the court and whom he had three children and second to Maria We agree.
paid by the administratrix. Since there still existed a residue Lao on June 24, 1903 with whom he had one child.
of the intestate estate consisting of real and personal Moreover, Maria Lao entered into the marriage Article 2263, a transitional provision in the New Civil Code
properties and collectible debts after payments to creditors, believing that Yap Siong was not then a married which took effect on August 30, 1950 states:
the court set the case for hearing to arrive at a declaration man. Yap Siong died on September 1922 leaving
of heirship for the purpose of liquidating the conjugal properties which were claimed by the two families.
Rights to the inheritance of a person who died, with or
partnership of the late Maning Yap and his surviving spouse In resolving the issue on how the properties of Yap
without a will, before the effectivity of this Code, shall be
and to determine the heirs entitled to inherit his intestate Siong should be divided, this Court applied the
governed by the Civil Code of 1889, by other previous laws,
estate. Leyes de Partidas (Law 1; Title 13, Partida 4), to
and by the Rules of Court. The inheritance of those who,
wit:
with or without a will die after the beginning of the effectivity
After trial, the lower court rendered decision declaring of this Code, shall be adjudicated and distributed in
Talina Bianong and her children as the legal heirs of Maning xxx xxx xxx accordance with this new body of laws and by the Rules of
Yap. The dispositive portion of the decision reads: Court; but the testamentary provisions shall be carried out
... [W]here two wome innocently and in good faith insofar as they may be permitted by this Code. Therefore,
IN VIEW OF ALL THE FOREGOING, judgment is hereby are legally united in holy matrimony to the same legitimes, betterments, legacies and bequests shall be
rendered: man, their children and each family will be entitled respected; however, their amount shall be reduced if in no
to one-half of the estate of the husband upon other manner can every compulsory heir be given his full
distribution of his estate. That provision of the share according to this Code. (Rule 12a)
(a) Declaring Talina Bianong, Shirley Yap and Jaime Yap,
Leyes de Partidas is a very humane and wise law.
the legal heirs of the late Maning Yap and entitled to inherit
It justly protects those who innocently have The Report of the Code Commission explains the rule, to
or succeed to his intestate with Talina Bianong, as his
entered into the solemn relation of marriage and wit:
surviving spouse, and Shirleyt Yap and Jaime Yap, as his
their descendants. The good faith of all the parties
surviving legitimate children;
will be presumed until the contrary is positive
The decisive fact which gives origin to the right of the heirs,
proved. (Articles 69, Civil Code; Las Leyes de
(b) Adjudicating to Talina Bianong one-third (1/3) of the devisees and legatees is the death of the decedent. This is
Matrimonio, section 96; Gaines v. Hennen, 65 U.S.,
whole intestate estate of the late Maning Yap, as her share, the basis of the foregoing rule. No heir, devisee or legatee
553).
pursuant to Art. 996 of the New Civil Code; to Shirley Yap, has any vested right until the moment of such death (Civil
the other one-third (1/3) as her share and to Jaime Yap the Code, Padilla, Volume VII, 1975, p. 712).
A woman who is deceied by a man who
remaining one-third (1/3), also as his share, pursuant to Art.
respresents himself as single and who marries him,
980 in conjunction with Art. 996 of the new Civil Code. We have accordingly ruled that the rights to the inheritance
she and her children born while the deception
of a person who died before the effectivity of the New Civil
Code shall be governed by the Civil Code of 1889, by other 73, Revised Rules of Court (Lapuz v. Eufemio, 43 However, Nancy Yap's children by Maning Yap have the
previous laws and by the Rules of Court (See Vidaurrazaga SCRA 177). status of natural children by legal fiction and are considered
v. Court of Appeals, 91 Phil. 492; Canales v. Arrogante, 91 compulsory heirs of the late Maning Yap. (Articles 89 and
Phil. 9; and Morales, et al. v. Yañez, 98 Phil. 677), while the Article 142 of the New Civil Code provides: 887, New Civil Code).
rights to the inheritance of a person who died after the
effectivity of the New Civil Code shall be governed by the Considering the foregoing, the estate of Maning Yap which
By means of the conjugal partnership of gains the
New Civil Code (Del Prado v. Santos, 18 SCRA 68). is one-half (1/2) pro indiviso of the net remainder of the
husband and wife place in a common fund the
fruits of their separate property and the income conjugal partnership of gains of the first marriage (Articles
There is no dispute that the marriage of Talina Bianong to from their work or industry, and divide equally, 142 and 185 New Civil Code), the other half being the share
Maning Yap was valid and that the second marriage upon the dissolution of the marriage or of the of Talina Bianong, should be distributed as follows:
contracted by the latter with Nancy Yap was illegal and void partnership, the net gains or benefits obtained
pursuant to Act 3613 of the Philippine Legislature, the indiscriminately by either spouse during the a. To the legitimate children, Shirley Yap and Jaime
Marriage Law which was in force when the two marriages marriage. Yap-one-half (1/2) of the resulting net estate to be divided
were celebrated to wit: equally between them pursuant to Article 888 of the New
and Article 185 thereof states: Civil Code;
SEC. 29. Illegal Marriages. — Any marriage subsequently
contracted by any person during the lifetime of the first b. To the legitimate widow Talina Bianong one-fourth (1/4)
The net remainder of the conjugal partnership of
spouse of such person with any person other than such first of the net estate taken from the free portion or disposable
gains shall be divided equally between the
spouse shall be illegal and void from its performance, half of the estate pursuant to Article 999 in relation. to
husband and the wife or their respective heirs,
unless; Article 897 of the New Civil Code; and
unless a different basis of division was agreed
upon in the marriage settlements.
(a) The first marriage was annulled or dissolved; c. To the natural children by legal fiction --Maning Yap, Jr.,
Pursuant to these provisions, the net remainder of Julia Yap, Jasmin Yap and Samuel Yap-the remaining
(b) The first spouse had been absent for seven consecutive the conjugal partnership of gains after money one-fourth (1/4) of the net estate to be shared equally
years at the time of the second marriage without the spouse claims filed by creditors against the intestate between them pursuant to the first and third paragraphs of
present having news of the absentee being alive, or the estate of Maning Yap approved by the lower court Article 895 in relation to Article 983 of the New Civil Code.
absentee being generally considered as dead and believed have been paid by the administratrix should be
to be so by the spouse present at the time of contracting equally divided between Maning Yap and Talina WHEREFORE, the instant PETITION is GRANTED. The
such subsequent marriage, the marriage so contracted Bianong as their shares. The one-half share of questioned decision of the Court of Appeals is hereby
being valid in either case until declared null and void by a Maning Yap would then comprise his intestate REVERSED and SET ASIDE. The widow, Talina Bianong
competent court. estate to be distributed among his heirs. (See also shall receive one half (1/2) of the whole intestate estate as
Vda. de Delizo v. Delizo, 69 SCRA 216) her share in the net remainder of the conjugal partnership of
Bearing this in mind, how must the estate of Maning Yap be gains. The other half, which is the net estate of the late
distributed? Under the law of succession in the New Civil Code, Maning Yap, is distributed and adjudicated as stated above.
Maning Yap's legal heirs are Talina Bianong, her
The records show that the real and personal properties children Shirley Yap and Jaime Yap and the SO ORDERED.
under administration in the intestate estate proceedings of children of Nancy Yap by Maning Yap namely:
Maning Yap were acquired by Talina Bianong and the Maning Yap, Jr., Julia Yap, Jasmin Yap and A.M. No. 2349 July 3, 1992
deceased Maning Yap during their marriage. Hence, these Samuel Yap. Talina Bianong, the first wife had not
properties, in the absence of any evidence to the contrary lost or relinquished her status as putative heir of
DOROTHY B. TERRE, complainant,
are considered conjugal properties of Talina Bianong and her husband. She is entitled to share in Maning
vs.
Maning Yap (Article 142, New Civil Code). Considering that Yap's estate upon his death (Gomez v. Lipana, 33
ATTY. JORDAN TERRE, respondent.
there was no liquidation of the conjugal partnership of gains SCRA 615). On the other hand, Nancy Yap, the
during the lifetime of Maning Yap, such liquidation must be second wife cannot inherit from Maning Yap
carried out in the intestate proceedings of Maning Yap, the because their marriage was void ab initio. (Art. 83,
deceased spouse as expressly provided in Section 2, Rule New Civil Code; People v. Mendoza, 95 Phil. 845)
PER CURIAM: dependent of Merlito Bercenilla, she had done so Complainant Dorothy Terre took the witness stand and
out of extreme necessity and to avoid risk of death testified substantially as follows: she and respondent met
In a sworn complaint filed with this Court on 24 December or injury to the fetus which happened to be in a for the first time in 1979 as fourth year high school
1981, complainant Dorothy B. Terre charged respondent difficult breech position. According to Dorothy, she classmates in Cadiz City High School (tsn, July 7, 1986, p.
Jordan Terre, a member of the Philippine Bar with "grossly had then already been abandoned by respondent 9); she was then married to Merlito Bercenilla, while
immoral conduct," consisting of contracting a second Jordan Terre, leaving her penniless and without respondent was single (id.); respondent was aware of her
marriage and living with another woman other than means to pay for the medical and hospital bills marital status (ibid, p. 14); it was then that respondent
complainant, while his prior marriage with complainant arising by reason of her pregnancy. started courting her but nothing happened of the courtship
remained subsisting. (ibid, p. 10); they [complainant and respondent] moved to
The Court denied respondent's Motion to Set Manila were they respectively pursued their education,
Aside or Lift the Suspension Order and instead respondent as a law student at the Lyceum University (tsn,
The Court resolved to require respondent to answer the
referred; by a Resolution dated 6 January 1986, July 7, 1986, p. 12, 15-16); respondent continued courting
complaint. 1 Respondent successfully evaded five (5)
the complaint to the Office of the Solicitor General her, this time with more persistence (ibid, p. 11); she
attempts to serve a copy of the Court's Resolution and of
for investigation, report and recommendation. 5 decided nothing would come of it since she was married but
the complaint by moving from one place to another, such
he [respondent] explained to her that their marriage was
that he could not be found nor reached in his alleged place
void ab initio since she and her first husband were first
of employment or residence. 2 On 24 April 1985, that is Then Solicitor Pio C. Guerrero was appointed
cousins (ibid, p. 12); convinced by his explanation and
after three (3) years and a half, with still no answer from the investigator by the Office of the Solicitor General.
having secured favorable advice from her mother and
respondent, the Court noted respondent's success in He set the case for hearing on 7 July 1986 with
ex-in-laws, she agreed to marry him [respondent] (ibid,
evading service of the complaint and the Court's Resolution notice to both parties. On 7 July 1986, complainant
12-13, 16); in their marriage license, despite her
and thereupon resolved to "suspend respondent Atty. Dorothy appeared and presented her evidence ex
[complainant's] objection, he [respondent] wrote "single" as
Jordan Terre from the practice of law until after he appears parte, since respondent did not so appear. 6 The
her status explaining that since her marriage was void ab
and/or files his answer to the complaint against him" in the Investigating Solicitor scheduled and held another
initio, there was no need to go to court to declare it as such
instant hearing on 19 August 1986, where he put
(ibid, 14-15); they were married before Judge Priscilla
case. 3 clarificatory questions to the complainant;
Mijares of the City Court of Manila on June 14, 1977 (Exhibit
respondent once again did not appear despite
A; tsn, July 7, 1986, pp. 16-17); Jason Terre was born of
On 28 September 1985, respondent finally filed an Answer notice to do so. Complainant finally offered her
their union on June 25, 1981 (Exhibit B, tsn, July 7, 1986, p.
with a Motion to Set Aside and/or Lift Suspension Order. In evidence and rested her case. The Solicitor set still
18); all through their married state up to the time he
his Answer, Atty. Terre averred that he had contracted another hearing for 2 October 1986, notifying
[respondent] disappeared in 1981, complainant supported
marriage with complainant Dorothy Terre on 14 June 1977 respondent to present his evidence with a warning
respondent, in addition to the allowance the latter was
upon her representation that she was single; that he that should he fail once more to appear, the case
getting from his parents (ibid, pp. 19-20); she was unaware
subsequently learned that Dorothy was married to a certain would be deemed submitted for resolution.
of the reason for his disappearance until she found out later
Merlito A. Bercenilla sometime in 1968; that when he Respondent did not appear on 2 October 1986.
that respondent married a certain Vilma [sic] Malicdem
confronted Dorothy about her prior marriage, Dorothy drove The Investigating Solicitor accordingly considered
(Exhibit C, tsn, July 7, 1986, pp. 21-22); she then filed a
him out of their conjugal residence; that Dorothy had respondent to have waived his right to present
case for abandonment of minor with the City Fiscal of Pasay
mockingly told him of her private meetings with Merlito A. evidence and declared the case submitted for
City (ibid, p. 23) which was subsequently filed before
Bercenilla and that the child she was then carrying (i.e., resolution. The parties were given time to submit
Branch II of the City Court of Pasay City as Criminal Case
Jason Terre) was the son of Bercenilla; that believing in their respective memoranda. Complainant Dorothy
No. 816159 (Exhibit D; tsn, July 7, 1986, p. 24); she likewise
good faith that his marriage to complainant was null and did so on 8 December 1986. Respondent Terre did
filed a case for bigamy against respondent and Helina
void ab initio, he contracted marriage with Helina Malicdem not file his memorandum.
Malicdem with the office of the Provincial Fiscal of
at Dasol, Pangasinan. 4 Pangasinan, where a prima facie case was found to exist
On 26 February 1990, the Office of the Solicitor (Exhibit E; tsn, July 7, pp. 25-26); additionally, complainant
In her Reply, complainant Dorothy denied that Jason Terre General submitted its "Report and filed an administrative case against respondent with the
was the child of Merlito A. Bercenilla and insisted that Jason Recommendation" to this Court. The Report Commission on Audit where he was employed, which case
was the child of respondent Jordan Terre, as evidenced by summarized the testimony of the complainant in however was considered closed for being moot and
Jason's Birth Certificate and physical resemblance to the following manner: academic when respondent was considered automatically
respondent. Dorothy further explained that while she had separated from the service for having gone on absence
given birth to Jason Terre at the PAFGH registered as a
without official leave (Exhibit F; tsn, July 7, 1986, pp. Bercenilla was null and void ab initio, that she was "indicative of a character not worthy of a member of the
28-29). 7 still legally single and free to marry him. When Bar." 13
complainant and respondent had contracted their
There is no dispute over the fact that complainant Dorothy marriage, respondent went through law school We believe and so hold that the conduct of respondent
Terre and respondent Jordan Terre contracted marriage on while being supported by complainant, with some Jordan Terre in inveigling complainant Dorothy Terre to
14 July 1977 before Judge Priscilla Mijares. There is further assistance from respondent's parents. After contract a second marriage with him; in abandoning
no dispute over the fact that on 3 May 1981, respondent respondent had finished his law course and gotten complainant Dorothy Terre after she had cared for him and
Jordan Terre married Helina Malicdem in Dasol, complainant pregnant, respondent abandoned the supported him through law school, leaving her without
Pangasinan. When the second marriage was entered into, complainant without support and without the means for the safe delivery of his own child; in contracting a
respondent's prior marriage with complainant was wherewithal for delivering his own child safely in a second marriage with Helina Malicdem while his first
subsisting, no judicial action having been initiated or any hospital. marriage with complainant Dorothy Terre was subsisting,
judicial declaration obtained as to the nullity of such prior constituted "grossly immoral conduct" under Section 27 of
marriage of respondent with complainant. Thus, we agree with the Solicitor General that Rule 138 of the Rules of Court, affording more than
respondent Jordan Terre, by his actions, sufficient basis for disbarment of respondent Jordan Terre.
Respondent Jordan Terre sought to defend himself by "eloquently displayed, not only his unfitness to He was unworthy of admission to the Bar in the first place.
claiming that he had believed in good faith that his prior remain as a member of the Bar, but likewise his The Court will correct this error forthwith.
marriage with complainant Dorothy Terre was null and inadequacy to uphold the purpose and
void ab initio and that no action for a judicial declaration of responsibility of his gender" because marriage is a WHEREFORE, the Court Resolved to DISBAR respondent
nullity was necessary. basic social institution. 9 Jordan Terre and to STRIKE OUT his name from the Roll of
Attorneys. A copy of this decision shall be spread on the
The Court considers this claim on the part of respondent In Pomperada v. Jochico, 10 the Court, in rejecting personal record of respondent Jordan Terre in the Bar
Jordan Terre as a spurious defense. In the first place, a petition to be allowed to take the oath as a Confidant's Office. A copy of this resolution shall also be
respondent has not rebutted complainant's evidence as to member of the Bar and to sign the Roll of furnished to the Integrated Bar of the Philippines and shall
the basic facts which underscores the bad faith of Attorneys, said through Mme. Justice be circularized to all the courts of the land.
respondent Terre. In the second place, that pretended Melencio-Herrera:
defense is the same argument by which he had inveigled SO ORDERED.
complainant into believing that her prior marriage to Merlito It is evident that respondent fails to meet the
A. Bercenilla being incestuous and void ab initio (Dorothy standard of moral fitness for membership in the G.R. No. 104818 September 17, 1993
and Merlito being allegedly first cousins to each other), she legal profession. Whether the marriage was a joke
was free to contract a second marriage with the respondent. as respondent claims, or a trick played on her as
ROBERTO DOMINGO, petitioner,
Respondent Jordan Terre, being a lawyer, knew or should claimed by complainant, it does not speak well of
vs.
have known that such an argument ran counter to the respondent's moral values. Respondent had made
COURT OF APPEALS and DELIA SOLEDAD AVERA
prevailing case law of this Court which holds that for a mockery of marriage, a basic social institution
represented by her Attorney-in-Fact MOISES R.
purposes of determining whether a person is legally free to which public policy cherishes and protects (Article
AVERA, respondents.
contract a second marriage, a judicial declaration that the 216, Civil Code). 11
first marriage was null and void ab initio is essential. 8 Even
if we were to assume, arguendo merely, that Jordan Terre Jose P.O. Aliling IV for petitioner.
In Bolivar v. Simbol, 12 the Court found the
held that mistaken belief in good faith, the same result will respondent there guilty of "grossly immoral
follow. For if we are to hold Jordan Terre to his own conduct" because he made a dupe of complainant, De Guzman, Meneses & Associates for private respondent.
argument, his first marriage to complainant Dorothy Terre living on her bounty and allowing her to spend for
must be deemed valid, with the result that his second his schooling and other personal necessities while
marriage to Helina Malicdem must be regarded as dangling before her the mirage of a marriage,
bigamous and criminal in character. marrying another girl as soon as he had finished ROMERO, J.:
his studies, keeping his marriage a secret while
That the moral character of respondent Jordan Terre was continuing to demand money from
The instant petition seeks the reversal of respondent court's
deeply flawed is shown by other circumstances. As noted, complainant. . . . ." The Court held such acts
ruling finding no grave abuse of discretion in the lower
he convinced the complainant that her prior marriage to
court's order denying petitioner's motion to dismiss the Petitioner filed a Motion to Dismiss on the ground v. GSIS2 and the absence of justiciable controversy as to
petition for declaration of nullity of marriage and separation that the petition stated no cause of action. The the nullity of the marriage. On September 11, 1991, Judge
of property. marriage being void ab initio, the petition for the Austria denied the motion for reconsideration and gave
declaration of its nullity is, therefore, superfluous petitioner fifteen (15) days from receipt within which to file
On May 29, 1991, private respondent Delia Soledad A. and unnecessary. It added that private respondent his answer.
Domingo filed a petition before the Regional Trial Court of has no property which is in his possession.
Pasig entitled "Declaration of Nullity of Marriage and Instead of filing the required answer, petitioner filed a
Separation of Property" against petitioner Roberto Domingo. On August 20, 1991, Judge Maria Alicia M. Austria special civil action of certiorari and mandamus on the
The petition which was docketed as Special Proceedings issued an Order denying the motion to dismiss for ground that the lower court acted with grave abuse of
No. 1989-J alleged among others that: they were married lack of merit. She explained: discretion amounting to lack of jurisdiction in denying the
on November 29, 1976 at the YMCA Youth Center Bldg., as motion to dismiss.
evidenced by a Marriage Contract Registry No. 1277K-76 Movant argues that a second marriage contracted
with Marriage License No. 4999036 issued at Carmona, after a first marriage by a man with another woman On February 7, 1992, the Court of Appeals 3 dismissed the
Cavite; unknown to her, he had a previous marriage with is illegal and void (citing the case of Yap v. Court of petition. It explained that the case of Yap v. CA4 cited by
one Emerlina dela Paz on April 25, 1969 which marriage is Appeals, 145 SCRA 229) and no judicial decree is petitioner and that of Consuegra v. GSIS relied upon by the
valid and still existing; she came to know of the prior necessary to establish the invalidity of a void lower court do not have relevance in the case at bar, there
marriage only sometime in 1983 when Emerlina dela Paz marriage (citing the cases of People v. Aragon, being no identity of facts because these cases dealt with the
sued them for bigamy; from January 23 1979 up to the 100 Phil. 1033; People v. Mendoza, 95 Phil. 845). successional rights of the second wife while the instant case
present, she has been working in Saudi Arabia and she Indeed, under the Yap case there is no dispute prays for separation of property corollary with the
used to come to the Philippines only when she would avail that the second marriage contracted by declaration of nullity of marriage. It observed that the
of the one-month annual vacation leave granted by her respondent with herein petitioner after a first separation and subsequent distribution of the properties
foreign employer since 1983 up to the present, he has been marriage with another woman is illegal and void. acquired during the union can be had only upon proper
unemployed and completely dependent upon her for However, as to whether or not the second determination of the status of the marital relationship
support and subsistence; out of her personal earnings, she marriage should first be judicially declared a nullity between said parties, whether or not the validity of the first
purchased real and personal properties with a total amount is not an issue in said case. In the case of Vda. de marriage is denied by petitioner. Furthermore, in order to
of approximately P350,000.00, which are under the Consuegra v. GSIS, the Supreme Court ruled in avoid duplication and multiplicity of suits, the declaration of
possession and administration of Roberto; sometime in explicit terms, thus: nullity of marriage may be invoked in this proceeding
June 1989, while on her one-month vacation, she together with the partition and distribution of the properties
discovered that he was cohabiting with another woman; she involved. Citing Articles 48, 50 and 52 of the Family Code, it
And with respect to the right of the second wife,
further discovered that he had been disposing of some of held that private respondent's prayer for declaration of
this Court observed that although the second
her properties without her knowledge or consent; she absolute nullity of their marriage may be raised together
marriage can be presumed to be void ab initio as it
confronted him about this and thereafter appointed her with other incidents of their marriage such as the separation
was celebrated while the first marriage was still
brother Moises R. Avera as her attorney-in-fact to take care of their properties. Lastly, it noted that since the Court has
subsisting, still there is need for judicial declaration
of her properties; he failed and refused to turn over the jurisdiction, the alleged error in refusing to grant the motion
of its nullity. (37 SCRA 316, 326)
possession and administration of said properties to her to dismiss is merely one of law for which the remedy
brother/attorney-in-fact; and he is not authorized to ordinarily would have been to file an answer, proceed with
administer and possess the same on account of the nullity The above ruling which is of later vintage deviated
the trial and in case of an adverse decision, reiterate the
of their marriage. The petition prayed that a temporary from the previous rulings of the Supreme Court in
issue on appeal. The motion for reconsideration was
restraining order or a writ of preliminary injunction be issued the aforecited cases of Aragon and Mendoza.
subsequently denied for lack of merit.5
enjoining Roberto from exercising any act of administration
and ownership over said properties; their marriage be Finally, the contention of respondent movant that
Hence, this petition.
declared null and void and of no force and effect; and Delia petitioner has no property in his possession is an
Soledad be declared the sole and exclusive owner of all issue that may be determined only after trial on the
properties acquired at the time of their void marriage and merits.1 The two basic issues confronting the Court in the instant
such properties be placed under the proper management case are the following.
and administration of the attorney-in-fact. A motion for reconsideration was filed stressing
the erroneous application of Vda. de Consuegra
First, whether or not a petition for judicial declaration of a This dissenting opinion was adopted as the Came the Family Code which settled once and for all the
void marriage is necessary. If in the affirmative, whether the majority position in subsequent cases involving the conflicting jurisprudence on the matter. A declaration of the
same should be filed only for purposes of remarriage. same issue. Thus, in Gomez v. Lipana, 11 the absolute nullity of a marriage is now explicitly required
Court abandoned its earlier ruling in either as a cause of action or a ground for
Second, whether or not SP No. 1989-J is the proper remedy the Aragon and Mendoza cases. In reversing the defense. 14 Where the absolute nullity of a previous
of private respondent to recover certain real and personal lower court's order forfeiting the husband's share marriage is sought to be invoked for purposes of contracting
properties allegedly belonging to her exclusively. of the disputed property acquired during the a second marriage, the sole basis acceptable in law for said
second marriage, the Court stated that "if the projected marriage be free from legal infirmity is a final
nullity, or annulment of the marriage is the basis judgment declaring the previous marriage void. 15
Petitioner, invoking the ruling in People
for the application of Article 1417, there is need for
v. Aragon6 and People v. Mendoza,7 contends that SP. No.
a judicial declaration thereof, which of course The Family Law Revision Committee and the Civil Code
1989-J for Declaration of Nullity of Marriage and Separation
contemplates an action for that purpose." Revision Committee 16 which drafted what is now the
of Property filed by private respondent must be dismissed
for being unnecessary and superfluous. Furthermore, under Family Code of the Philippines took the position that parties
his own interpretation of Article 40 of the Family Code, he Citing Gomez v. Lipana, the Court subsequently to a marriage should not be allowed to assume that their
submits that a petition for declaration of absolute nullity of held in Vda. de Consuegra v. Government Service marriage is void even if such be the fact but must first
marriage is required only for purposes of remarriage. Since Insurance System, that "although the second secure a judicial declaration of the nullity of their marriage
the petition in SP No. 1989-J contains no allegation of marriage can be presumed to be void ab initio as it before they can be allowed to marry again. This is borne out
private respondent's intention to remarry, said petition was celebrated while the first marriage was still by the following minutes of the 152nd Joint Meeting of the
should therefore, be dismissed. subsisting, still there is need for judicial declaration Civil Code and Family Law Committees where the present
of such nullity." Article 40, then Art. 39, was discussed.
On the other hand, private respondent insists on the
necessity of a judicial declaration of the nullity of their In Tolentino v. Paras,12 however, the Court turned B. Article 39. —
marriage, not for purposes of remarriage, but in order to around and applied
provide a basis for the separation and distribution of the the Aragon and Mendoza ruling once again. In The absolute nullity of a marriage may be invoked only on
properties acquired during coverture. granting the prayer of the first wife asking for a the basis of a final judgment declaring the marriage void,
declaration as the lawful surviving spouse and the except as provided in Article 41.
correction of the death certificate of her deceased
There is no question that the marriage of petitioner and
husband, it explained that "(t)he second marriage
private respondent celebrated while the former's previous Justice Caguioa remarked that the above provision should
that he contracted with private respondent during
marriage with one Emerlina de la Paz was still subsisting, is include not only void but also voidable marriages. He then
the lifetime of his first spouse is null and void from
bigamous. As such, it is from the beginning.8 Petitioner suggested that the above provision be modified as follows:
the beginning and of no force and effect. No
himself does not dispute the absolute nullity of their
judicial decree is necessary to establish the
marriage.9 The validity of a marriage may be invoked only . . .
invalidity of a void marriage."

The cases of People v. Aragon and People Justice Reyes (J.B.L. Reyes), however, proposed that they
However, in the more recent case of Wiegel
v. Mendoza relied upon by petitioner are cases where the say:
v. Sempio-Diy 13 the Court reverted to
Court had earlier ruled that no judicial decree is necessary
the Consuegra case and held that there was "no
to establish the invalidity of a void, bigamous marriage. It is
need of introducing evidence about the existing The validity or invalidity of a marriage may be invoked
noteworthy to observe that Justice Alex Reyes, however,
prior marriage of her first husband at the time they only . . .
dissented on these occasions stating that:
married each other, for then such a marriage
though void still needs according to this Court a On the other hand, Justice Puno suggested that they say:
Though the logician may say that where the former judicial declaration of such fact and for all legal
marriage was void there would be nothing to dissolve, still it intents and purposes she would still be regarded
is not for the spouses to judge whether that marriage was The invalidity of a marriage may be invoked only . . .
as a married woman at the time she contracted her
void or not. That judgment is reserved to the courts. . . . 10 marriage with respondent Karl Heinz Wiegel."
Justice Caguioa explained that his idea is that one cannot
determine for himself whether or not his marriage is valid
and that a court action is needed. Justice Puno accordingly the marriage is valid. He then asked: Are they Justice Caguioa explained that the idea in the above
proposed that the provision be modified to read: depriving one of the right to raise the defense that provision is that if one enters into a subsequent marriage
he has no liability because the basis of the liability without obtaining a final judgment declaring the nullity of a
The invalidity of a marriage may be invoked only on the is void? Prof. Bautista added that they cannot say previous marriage, said subsequent marriage is void ab
basis of a final judgment annulling the marriage or declaring that there will be no judgment on the validity or initio.
the marriage void, except as provided in Article 41. invalidity of the marriage because it will be taken
up in the same proceeding. It will not be a After further deliberation, Justice Puno suggested that they
unilateral declaration that, it is a void go back to the original wording of the provision as follows:
Justice Caguioa remarked that in annulment, there is no
marriage. Justice Caguioa saw the point of Prof.
question. Justice Puno, however, pointed out that, even if it
Bautista and suggested that they limit the provision
is a judgment of annulment, they still have to produce the The absolute nullity of a previous marriage may be invoked
to remarriage. He then proposed that Article 39 be
judgment. for purposes of remarriage only on the basis of a final
reworded as follows:
judgment declaring such previous marriage void, except as
Justice Caguioa suggested that they say: provided in Article 41. 17
The absolute nullity of a marriage for purposes of
remarriage may be invoked only on the basis of
The invalidity of a marriage may be invoked only on the In fact, the requirement for a declaration of absolute nullity
final judgment . . .
basis of a final judgment declaring the marriage invalid, of a marriage is also for the protection of the spouse who,
except as provided in Article 41. believing that his or her marriage is illegal and void, marries
Justice Puno suggested that the above be again. With the judicial declaration of the nullity of his or her
modified as follows: first marriage, the person who marries again cannot be
Justice Puno raised the question: When a marriage is
charged with bigamy. 18
declared invalid, does it include the annulment of a
The absolute nullity of a previous marriage may be
marriage and the declaration that the marriage is void?
invoked for purposes of establishing the validity of Just over a year ago, the Court made the pronouncement
Justice Caguioa replied in the affirmative. Dean Gupit
a subsequent marriage only on the basis of a final that there is a necessity for a declaration of absolute nullity
added that in some judgments, even if the marriage is
judgment declaring such previous marriage void, of a prior subsisting marriage before contracting another in
annulled, it is declared void. Justice Puno suggested that
except as provided in Article 41. the recent case of Terre v. Terre. 19 The Court, in turning
this matter be made clear in the provision.
down the defense of respondent Terre who was charged
Justice Puno later modified the above as follows: with grossly immoral conduct consisting of contracting a
Prof. Baviera remarked that the original idea in the provision
second marriage and living with another woman other than
is to require first a judicial declaration of a void marriage and
For the purpose of establishing the validity of a complainant while his prior marriage with the latter
not annullable marriages, with which the other members
subsequent marriage, the absolute nullity of a remained subsisting, said that "for purposes of determining
concurred. Judge Diy added that annullable marriages are
previous marriage may only be invoked on the whether a person is legally free to contract a second
presumed valid until a direct action is filed to annul it, which
basis of a final judgment declaring such nullity, marriage, a judicial declaration that the first marriage was
the other members affirmed. Justice Puno remarked that if
except as provided in Article 41. null and void ab initio is essential."
this is so, then the phrase "absolute nullity" can stand since
it might result in confusion if they change the phrase to
"invalidity" if what they are referring to in the provision is the Justice Caguioa commented that the above As regards the necessity for a judicial declaration of
declaration that the marriage is void. provision is too broad and will not solve the absolute nullity of marriage, petitioner submits that the
objection of Prof. Bautista. He proposed that they same can be maintained only if it is for the purpose of
say: remarriage. Failure to allege this purpose, according to
Prof. Bautista commented that they will be doing away with
petitioner's theory, will warrant dismissal of the same.
collateral defense as well as collateral attack. Justice
Caguioa explained that the idea in the provision is that there For the purpose of entering into a subsequent
should be a final judgment declaring the marriage void and marriage, the absolute nullity of a previous Article 40 of the Family Code provides:
a party should not declare for himself whether or not the marriage may only be invoked on the basis of a
marriage is void, while the other members affirmed. Justice final judgment declaring such nullity, except as Art. 40. The absolute nullity of a previous marriage may be
Caguioa added that they are, therefore, trying to avoid a provided in Article 41. invoked for purposes of remarriage on the basis solely of a
collateral attack on that point. Prof. Bautista stated that final judgment declaring such previous marriage void. (n)
there are actions which are brought on the assumption that
Crucial to the proper interpretation of Article 40 is the Marriage, a sacrosanct institution, declared by the remarry will result in the dismissal of SP No. 1989-J is
position in the provision of the word "solely." As it is placed, Constitution as an "inviolable social institution, is untenable. His misconstruction of Art. 40 resulting from the
the same shows that it is meant to qualify "final judgment the foundation of the family;" as such, it "shall be misplaced emphasis on the term "solely" was in fact
declaring such previous marriage void." Realizing the need protected by the State."20 In more explicit terms, anticipated by the members of the Committee.
for careful craftsmanship in conveying the precise intent of the Family Code characterizes it as "a special
the Committee members, the provision in question, as it contract of permanent union between a man and a Dean Gupit commented the word "only" may be
finally emerged, did not state "The absolute nullity of a woman entered into in accordance with law for the misconstrued to refer to "for purposes of remarriage." Judge
previous marriage may be invoked solely for purposes of establishment of conjugal, and family life." 21 So Diy stated that "only" refers to "final judgment." Justice
remarriage . . .," in which case "solely" would clearly qualify crucial are marriage and the family to the stability Puno suggested that they say "on the basis only of a final
the phrase "for purposes of remarriage." Had the and peace of the nation that their "nature, judgment." Prof. Baviera suggested that they use the legal
phraseology been such, the interpretation of petitioner consequences, and incidents are governed by law term "solely" instead of "only," which the Committee
would have been correct and, that is, that the absolute and not subject to stipulation . . ." 22 As a matter of approved. 24 (Emphasis supplied)
nullity of a previous marriage may be invoked solely for policy, therefore, the nullification of a marriage for
purposes of remarriage, thus rendering irrelevant the clause the purpose of contracting another cannot be
Pursuing his previous argument that the declaration for
"on the basis solely of a final judgment declaring such accomplished merely on the basis of the
absolute nullity of marriage is unnecessary, petitioner
previous marriage void." perception of both parties or of one that their union
suggests that private respondent should have filed an
is so defective with respect to the essential
ordinary civil action for the recovery of the properties
That Article 40 as finally formulated included the significant requisites of a contract of marriage as to render it
alleged to have been acquired during their union. In such an
clause denotes that such final judgment declaring the void ipso jure and with no legal effect — and
eventuality, the lower court would not be acting as a mere
previous marriage void need not be obtained only for nothing more. Were this so, this inviolable social
special court but would be clothed with jurisdiction to rule on
purposes of remarriage. Undoubtedly, one can conceive of institution would be reduced to a mockery and
the issues of possession and ownership. In addition, he
other instances where a party might well invoke the would rest on very shaky foundations indeed. And
pointed out that there is actually nothing to separate or
absolute nullity of a previous marriage for purposes other the grounds for nullifying marriage would be as
partition as the petition admits that all the properties were
than remarriage, such as in case of an action for liquidation, diverse and far-ranging as human ingenuity and
acquired with private respondent's money.
partition, distribution and separation of property between fancy could conceive. For such a social significant
the erstwhile spouses, as well as an action for the custody institution, an official state pronouncement through
the courts, and nothing less, will satisfy the The Court of Appeals disregarded this argument and
and support of their common children and the delivery of the
exacting norms of society. Not only would such an concluded that "the prayer for declaration of absolute nullity
latters' presumptive legitimes. In such cases, evidence
open and public declaration by the courts of marriage may be raised together with the other incident
needs must be adduced, testimonial or documentary, to
definitively confirm the nullity of the contract of of their marriage such as the separation of their properties."
prove the existence of grounds rendering such a previous
marriage an absolute nullity. These need not be limited marriage, but the same would be easily verifiable
solely to an earlier final judgment of a court declaring such through records accessible to everyone. When a marriage is declared void ab initio, the law states
previous marriage void. Hence, in the instance where a that the final judgment therein shall provide for "the
party who has previously contracted a marriage which That the law seeks to ensure that a prior marriage liquidation, partition and distribution of the properties of the
remains subsisting desires to enter into another marriage is no impediment to a second sought to be spouses, the custody and support of the common children,
which is legally unassailable, he is required by law to prove contracted by one of the parties may be gleaned and the delivery of their presumptive legitimes, unless such
that the previous one was an absolute nullity. But this he from new information required in the Family Code matters had been adjudicated in previous judicial
may do on the basis solely of a final judgment declaring to be included in the application for a marriage proceedings." 25 Other specific effects flowing therefrom, in
such previous marriage void. license, viz, "If previously married, how, when and proper cases, are the following:
where the previous marriage was dissolved and
This leads us to the question: Why the distinction? In other annulled." 23 Art. 43. xxx xxx xxx
words, for purposes of remarriage, why should the only
legally acceptable basis for declaring a previous marriage Reverting to the case before us, petitioner's (2) The absolute community of property or the conjugal
an absolute nullity be a final judgment declaring such interpretation of Art. 40 of the Family Code is, partnership, as the case may be, shall be dissolved and
previous marriage void? Whereas, for purposes other than undoubtedly, quite restrictive. Thus, his position liquidated, but if either spouse contracted said marriage in
remarriage, other evidence is acceptable? that private respondent's failure to state in the bad faith, his or her share of the net profits of the community
petition that the same is filed to enable her to property or conjugal partnership property shall be forfeited
in favor of the common children or, if there are none, the SO ORDERED. misconduct for allegedly having committed bigamy and
children of the guilty spouse by a previous marriage or, in falsification of public documents.
default of children, the innocent spouse; [A.M. No. MTJ-95-1070. February 12, 1997]
After receipt of the respondent's Comment, the Court on
(3) Donations by reason of marriage shall remain valid, MARIA APIAG, TERESITA CANTERO February 5, 1996, referred this case3 to Executive Judge
except that if the donee contracted the marriage in bad faith, SECUROM and GLICERIO Gualberto P. Delgado of the Regional Trial Court of Toledo
such donations made to said donee are revoked by CANTERO, complainants, vs. JUDGE City, Cebu for investigation, report and recommendation.
operation of law; ESMERALDO G. CANTERO, Respondent. The latter submitted his Report and
Recommendation4 dated July 26, 1996. Thereafter, the
(4) The innocent spouse may revoke the designation of the Court referred this case also to the Office of the Court
DECISION
other spouse who acted in bad faith as a beneficiary in any Administrator5 for evaluation, report and recommendation.
insurance policy, even if such designation be stipulated as
PANGANIBAN, J.:
irrevocable; and According to the complainants:

Judges ought to be more learned than witty, more

(5) The spouse who contracted the subsequent marriage in "Sometime in August 11, 1947, defendant (should be
reverend than plausible, and more advised than
bad faith shall be disqualified to inherit from the innocent respondent) and plaintiff (should be complainant) Maria
confident. Above all things, integrity is their portion
spouse by testate and intestate succession. (n) Apiag, joined together in holy matrimony in marriage after
and proper virtue.1chanroblesvirtuallawlibrary
having lived together as husband and wife wherein they
Art. 44. If both spouses of the subsequent marriage acted in begot a daughter who was born on June 19, 1947, whom
The eminent Francis Bacon wrote the foregoing they named: Teresita A. Cantero; and then on October 29,
bad faith, said marriage shall be void ab initio and all
exhortation some 400 years ago. Today, it is still 1953, Glicerio A. Cantero was born. Thereafter, defendant
donations by reason of marriage and testamentary
relevant and quotable. By the nature of their left the conjugal home without any apparent cause, and
disposition made by one in favor of the other are revoked by
functions, judges are revered as models of leaving the plaintiff Maria Apiag to raise the two children
operation of law. (n) 26
integrity, wisdom, decorum, competence and with her meager income as a public school teacher at
propriety. Human as they are, however, Hinundayan, Southern Leyte. Plaintiffs suffered a lot after
Based on the foregoing provisions, private respondent's magistrates do have their own weaknesses, defendant abandoned them for no reason whatsoever. For
ultimate prayer for separation of property will simply be one frailties, mistakes and even indiscretions. In the several years, defendant was never heard of and his
of the necessary consequences of the judicial declaration of case before us, respondent Judge Esmeraldo G. whereabout unknown.
absolute nullity of their marriage. Thus, petitioner's Cantero was charged administratively in the
suggestion that in order for their properties to be separated, twilight of his government service, as a result of a
an ordinary civil action has to be instituted for that purpose Few years ago, defendant surfaced at Hinundayan,
failed love affair that happened some 46 years ago.
is baseless. The Family Code has clearly provided the Southern Leyte, whereupon, plaintiffs begged for support,
After an otherwise unblemished record, he would
effects of the declaration of nullity of marriage, one of which however, they were ignored by defendant. x x
have reached the compulsory retirement age of 70
is the separation of property according to the regime of x"6chanroblesvirtuallawlibrary
years on August 8, 1997 had death not intervened
property relations governing them. It stands to reason that a few months ago on September 26, 1996.
the lower court before whom the issue of nullity of a first Notwithstanding his death, this Court still resolved On September 21, 1993, complainants, through Atty.
marriage is brought is likewise clothed with jurisdiction to to rule on this case, as it may affect his retirement Redentor G. Guyala, wrote a letter to respondent as follows:
decide the incidental questions regarding the couple's benefits.
properties. Accordingly, the respondent court committed no "Judge Esmeraldo Cantero
reversible error in finding that the lower court committed no
Antecedent Facts
grave abuse of discretion in denying petitioner's motion to
Pinamungajan, Cebu
dismiss SP No. 1989-J.
In a letter-complaint2
dated November 10, 1993,
Maria Apiag Cantero with her daughter Teresita A. Dear Judge Cantero:
WHEREFORE, the instant petition is hereby DENIED. The
Cantero Sacurom and son Glicerio A. Cantero
decision of respondent Court dated February 7, 1992 and
charged the respondent, Judge Esmeraldo G.
the Resolution dated March 20, 1992 are AFFIRMED.
Cantero of the Municipal Circuit Trial Court of
Pinamungajan-Aloquinsan, Cebu, with gross
We are writing in behalf of your legal wife, Maria Apiag, and -- June 10, 1977; and Desirie Vic Y. Cantero -- complainant, and then and there gave birth to a child,
your two legitimate children by her, Teresita (Mrs. Sacurom) December 2, 1981. named Teresita Apiag, having (been) born out of wedlock
and Glicerio. on June 19, 1947, now Mrs. Teresita Sacurom, one of the
It was shocking to the senses that in all of the complainants. That in order to save name and shame,
It appears that sometime in the 1950's for reasons known public documents required of defendant Judge parents of both the respondent and the complainant came
only to you, you left your conjugal home at Hinundayan, Cantero to be filed with the Supreme Court such to an agreement to allow the respondent, and the
Southern Leyte, and abandoned without any means of as his sworn statement of assets and liabilities, his complainant (to) get married in the (sic) name, but not to live
support your said wife and children. Since then and up to personal data sheet (SC Form P. 001), income tax together as husband, wife for being close relatives, thereby
now, they have not seen or heard from you. returns and his insurance policy with the forcing the respondent to appear in a marriage affair where
Government Service Insurance System, defendant all the pertinent marriage papers were all ready (sic)
misrepresented himself as being married to Nieves prepared (sic), and duly signed by somebody; that after the
They would wish now that you do them right by living up to
C. Ygay, with whom he contracted a second said affair both respondent and the complainant
your duty as husband and father to them, particularly that
marriage. The truth of the matter is that defendant immediately separated each other (sic) without living
expressly provided under Art. 68 and Art. 195 of the Family
is married to plaintiff Maria Apiag with whom they together as husband, and wife even for a day, nor having
Code (Art. 109 and 195 of the Civil Code) in relation to Art.
have two legitimate children, namely: Teresita A. established a conjugal home. From that time respondent
203 of the same Code.
Cantero and Glicerio A. and the complainant have never met each other nor having
Cantero."8chanroblesvirtuallawlibrary (sic) communicated (with) each other for the last 40 years;
You will please consider this letter as a formal demand for that respondent continued his studies at Cebu City, and
maintenance and support for three of them, and a request eventually became member of the Philippine Bar, having
that they be properly instituted and named as your The respondent Judge, in his Comment, explained
passed the bar examination in the year 1960, that is 14
compulsory heirs and legal beneficiaries in all legal his side as follows:
years after the affair of 1947; that in 1964, respondent was
documents now on file and to be filed with the Supreme first connected in the government service as Comelec
Court and other agencies or offices as may be required "x x x I admit the existence and form of Annex 'A' Registrar of the Commission on Elections, assigned at
under applicable laws, such as, the insurance (GSIS) and of the said complaint, but vehemently deny the Pinamungajan, Cebu(,) that is 16 years after the affair of
retirement laws. validity of its due execution, for the truth of the 1947; that in the year 1982, respondent was appointed as
matter is that such alleged marriage was only CLAO lawyer, now PAO, of the Department of Justice, that
We hope this matter can be amicably settled among you, dramatized at the instance of our parents just to is 35 years after the after the affair of 1947; and finally, on
your wife and children, without having to resort to judicial shot (sic) their wishes and purposes on the matter, October 3, 1989, respondent was appointed to the Judiciary
recourse. without my consent freely given. As a matter of fact, as Municipal Circuit Trial Judge (MCTC) of the
I was only called by my parents to go home to our Municipalities of Pinamungajan and Aloguinsan, province of
town at Hinundayan, Southern Leyte to attend Cebu, that is 42 years from August 11, 1947; that
Very truly yours,
party celebration of my sister's birthday from Iligan respondent is (sic) already 32 years in the government
City, without patently knowing I was made to service up to the present time with more than 6 years in the
(SGD.) REDENTOR G. appear (in) a certain drama marriage and we were Judiciary; that respondent is already 69 years old, having
GUYALA"7chanroblesvirtuallawlibrary forced to acknowledge our signatures appearing in been born on August 8, 1927, and retirable by next year if
the duly prepared marriage contract(.) That was 46 God willing; that respondent has served in the government
The letter elicited no action or response from the years ago when I was yet 20 years of age, and at service for the last 32 years, faithfully, honestly and
respondent. Subsequently, complainants learned that my second year high school judiciously without any complaint whatsoever, except this
respondent Judge had another family. In their own words, days."9chanroblesvirtuallawlibrary instant case; that respondent as member of the Judiciary,
has live-up (sic) to the standard required by the (sic)
"x x x The plaintiffs later on learned that defendant has Furthermore, Judge Cantero related that: member (sic) of the bar and judiciary; that the charges
another wife by the name of Nieves C. Ygay, a Public against the respondent were all based or rooted from the
School teacher from Tagao, Pinamungajan, Cebu. "x x x sometime in the year 1947, when both incedent (sic) that happened on August 11, 1947 and no
According to some documents obtained by plaintiffs, the respondent and complainant, Maria Apiag were other; that the complainants are morally dishonest in filing
herein defendant and Nieves C. Ygay have children of their still in their early age and in their second year high the instant (case) just now, an elapsed (sic) of almost 42
own, named as follows with their date of births: Noralyn Y. school days, they were engaged in a lovely affair years and knowing that respondent (is) retirable by next
Cantero -- May 19, 1968; Ellen Y. Cantero -- February 4, which resulted to the pregnancy of the said year, 1997; that this actuation is very suspicious, and
1970; Erwin Y. Cantero -- April 29, 1979; Onofre Y. Cantero intriguing;
xxx 1. That the First Party is presently a Municipal said dismissal be received by the First Party, otherwise the
Circuit Trial Judge of Pinamungajan-Aloguinsan, above-agreement is void from the beginning; and the
That complainant Maria Apiag has been living together with Cebu, is charged by Second Party for Misconduct Second Party must desist from further claining (sic) and
another man during her public service as public school before the Office of the Court Administrator of the filing civil abd (sic) criminal liabilities.
teacher and have begotten a child, name (sic) Manuel Supreme Court now pending action;
Apiag and respondent promised (sic) the Honorable Court 5. That this agreement is executed voluntarily, in good faith,
to furnish a complete paper regarding this case in order to 2. That the parties have came (sic) to agreement and in the interest of good will and reconciliation and both
enlighten the Honorable (Court) that, he who seek (sic) to have the said case settled amicably in the parties is (sic) duty bound to follow faithfully and
justice must seek justice with cleab (sic) hand; interest of family unity and reconciliation, and religiously."11chanroblesvirtuallawlibrary
arrived at compromise agreement based on law of
That respondent did not file any annullment (sic) or judicial equity, as follows: In line with the foregoing, the respondent wrote a letter
declaration (of nullity) of the alleged marriage because it is dated 14 March, 1994 addressed to the Government
the contention and honest belief, all the way, that the said (a) That both parties have agreed Service Insurance System (GSIS) designating Teresita
marriage was void from the beginning, and as such nothing voluntarily, the Second Party will Cantero Sacurom and Glicerio Cantero as additional
is to be voided or nullified, and to do so will be inconsistent get ONE FOURTH (1/4) of the beneficiaries in his life insurance
with the stand of the respondent; that this instant case (was) retirement that the First will receive policy.12chanroblesvirtuallawlibrary
simply filed for money consideration as reflected in their from the GSIS, and the rest of it
letter of demand; (t)hat as a matter of fact, respondent and will be for the First Party; The Issues
the complainant have already signed a compromised (sic)
agreement, copy of which hereto (sic) attached as Annex '1', (b) That the Second Party and his The respondent Judge formulated the following "issues":
stating among other things that respondent will give a brother will be included as one of
monthly allowance to Terecita (sic) Sacurom in the (amount) the beneficiaries of the First Party,
of P4,000.00 and the complainant will withdraw their "1. That the first marriage with the complainant, Maria Apiag
in case of death;
complaint from the Supreme Court., and that respondent on August 11, 1947 is void;
had already given the said allowance for three consecutive
(c) That the Second party and his
months plus the amount of P25,000.00 for their Attorney to 2. The absence of his first wife complainant Maria Apiag for
only brother will inherit the
withdraw the case, and that respondent stop (sic) the more than seven (7) years raise the presumption that she is
properties of the First party
monthly allowance until such time the complainant will already dead, that there was no need for any judicial
inherited from his parents;
actually withdraw the instant case, and without knowledge declaration;
of the respondent, complainant proceeded (sic) their
complaint after the elapsed (sic) of three (3) (d) That the Second Party,
3. The charge of Grave Misconduct is not applicable to him
years."10chanroblesvirtuallawlibrary representing her brother, is
because assuming that he committed the offense, he was
authorized to receive and
not yet a member of the judiciary;
collect P4,000.00, monthly out of
Relevant portions of said compromise agreement which
the second check salary of the
was executed sometime in March 1994 by Esmeraldo C. 4. The crime of Bigamy and Falsification had already
First Party (The second half salary
Cantero and Teresita C. Sacurom and witnessed by Maria prescribed;
only);
Apiag and Leovegardo Sacurom are reproduced thus:

3. That it was further voluntarily agreed that the 5. The charges have no basis in fact and in
"That this COMPROMISE AGREEMENT is executed and law."13chanroblesvirtuallawlibrary
Second Party will cause the withdrawal and the
entered into by ESMERALDO C. CANTERO, of legal age,
outright dismissal of the said pending case filed by
married, Filipino, and with residence and postal address at
her and her mother; Report and Recommendation of Investigating Judge and
Pinamungajan, Cebu, Philippines, otherwise called as the
Court Administrator
FIRST PARTY, and TERESITA C. SACUROM, also of legal
age, married, Filipino, representing her mother and her 4. That it was also agreed that the above
brother, and a residence (sic) of 133-A J. Ramos Street, agreement, shall never be effective and Investigating Judge Gualberto P. Delgado recommended in
Caloocan City, after having duly swirn (sic) to in accordance enforceable unless the said case will be withdrawn his report that:
with law do hereby depose and say: and dismiss (sic) from the Supreme Court, and
"After a careful perusal of the evidence submitted by the 99-102, rollo), that he had committed a In spite of his death, this Court decided to resolve this case
parties, this Office finds respondent Guilty of the crime of misrepresentation by stating therein that his on the merits, in view of the foregoing recommendation of
Grave Misconduct (Bigamy and Falsification of Public spouse is Nieves Ygay and (had) eight (8) children the OCA which, if affirmed by this Court, would mean
Documents) however, considering his length of service in (with her) which is far from (the) truth that his wife forfeiture of the death and retirement of the respondent.
the government, it is recommended that he be suspended is Maria Apiag with whom he had two (2) children.
for one (1) year without pay."14chanroblesvirtuallawlibrary Gross Misconduct Not Applicable
Aside from the admission, the untenable line of
The Office of the Court Administrator also submitted its defense by the respondent presupposes the The misconduct imputed by the complainants against the
report15 recommending respondent Judge's dismissal, as imposition of an administrative sanction for the judge comprises the following: abandonment of his first wife
follows: charges filed against him. 'A judge's actuation of and children, failing to give support, marrying for the second
cohabiting with another when his marriage was still time without having first obtained a judicial declaration of
"After a careful review of all the documents on file in this valid and subsisting - his wife having been nullity of his first marriage, and falsification of public
case, we find no cogent reason to disturb the findings of the allegedly absent for four years only constitutes documents. Misconduct, as a ground for administrative
investigating judge. gross immoral conduct' (Abadilla vs. Tabiliran Jr., action, has a specific meaning in law.
249 SCRA 447). It is evident that respondent failed
to meet the standard of moral fitness for
Extant from the records of the case and as admitted by "'Misconduct in office has definite and well understood legal
membership in the legal profession. While deceit
respondent, he was married to complainant Maria Apiag on meaning. By uniform legal definition, it is a misconduct such
employed by respondent, existed prior to his
August 11, 1947 and have (sic) two (2) children with her. as affects his performance of his duties as an officer and not
appointment as a x x x Judge, his immoral and
Respondent's contention that such marriage was in jest and such only as affects his character as a private individual. In
illegal act of cohabiting with x x x began and
assuming that it was valid, it has lost its validity on the such cases, it has been said at all times, it is necessary to
continued when he was already in the judiciary. A
ground that they never met again nor have communicated separate the character of man from the character of an
judge, in order to promote public confidence in the
with each other for the last 40 years cannot be given a (sic) officer. x x x It is settled that misconduct, misfeasance, or
integrity and impartiality of the judiciary, must
scant consideration. Respondent's argument that he was malfeasance warranting removal from office of an officer,
behave with propriety at all times, in the
not yet a lawyer, much more, a member of the bench when must have direct relation to and be connected with the
performance of his judicial duties and in his
he contracted his first marriage with the complainant, is performance of official duties x x x.' More specifically, in
everyday life. These are judicial guidepost to(sic)
unavailing for having studied law and had become a Buenaventura vs. Benedicto, an administrative proceeding
self-evident to be overlooked. No position exacts a
member of the Bar in 1960, he knows that the marriage against a judge of the court of first instance, the present
greater demand on moral righteousness and
cannot be dissolved without a judicial declaration of death. Chief Justice defines misconduct as referring 'to a
uprightness of an individual than a seat in the
Respondent's second marriage with Nieves Ygay was transgression of some established and definite rule of
judiciary (Atienza vs. Brilliantes, Jr., 243 SCRA
therefore bigamous for it was contracted during the action, more particularly unlawful behavior or gross
32-33).
existence of a previous marriage. negligence by the public officer.' That is to abide by the
authoritative doctrine as set forth in the leading case of In re
ACCORDINGLY, it is respectfully recommended Horilleno, a decision penned by Justice Malcolm, which
We are likewise not persuaded by the assertion of the
that respondent judge be DISMISSED from the requires that in order for serious misconduct to be shown,
respondent that he cannot be held liable for misconduct on
service with forfeiture of all leave and retirement there must be 'reliable evidence showing that the judicial
the ground that he was not yet a lawyer nor a judge when
benefits and with prejudice to re-appointment in acts complained of were corrupt or inspired by an intention
the act(s) complained of were committed. The infraction he
any branch, instrumentality or agency of the to violate the law or were in persistent disregard of
committed continued from the time he became a lawyer in
government, including government-owned and well-known legal rules.'"16
1960 to the time he was appointed as a judge in October 23,
controlled corporations."
1989. This is a continuing offense (an unlawful act
performed continuously or over and over again, Law The acts imputed against respondent Judge Cantero clearly
Dictionary, Robert E. Rothenberg). He can therefore be As earlier indicated, respondent Judge died on pertain to his personal life and have no direct relation to his
held liable for his misdeeds. September 27, 1996 while this case was still being judicial function. Neither do these misdeeds directly relate
deliberated upon by this Court. to the discharge of his official responsibilities. Therefore,
On the charge of falsification, it was shown with clarity in his said acts cannot be deemed misconduct much less gross
Personal Data Sheet for Judges, Sworn Statement of The Court's Ruling misconduct in office. For any of the aforementioned acts of
Assets, Liabilities and Networth, Income Tax Return (pp. Judge Cantero" x x x (t)o warrant disciplinary action, the act
of the judge must have a direct relation to the performance
of his official duties. It is necessary to separate the documents, a valid defense in a charge of Finally, the Court also scrutinized the whole of respondent's
character of the man from the character of the falsification of public document,23 which must be record. Other than this case, we found no trace of
officer."17chanroblesvirtuallawlibrary appreciated in his favor. wrongdoing in the discharge of his judicial functions from
the time of his appointment up to the filing of this
Nullity of Prior Marriage Personal Conduct of a Judge administrative case, and has to all appearances lived up to
the stringent standards embodied in the Code of Judicial
Conduct. Considering his otherwise untarnished 32 years in
It is not disputed that respondent did not obtain a judicial However, the absence of a finding of criminal
government service,26 this Court is inclined to treat him with
declaration of nullity of his marriage to Maria Apiag prior to liability on his part does not preclude this Court
leniency.
marrying Nieves C. Ygay. He argued however that the first from finding him administratively liable for his
marriage was void and that there was no need to have the indiscretion, which would have merited disciplinary
same judicially declared void, pursuant to jurisprudence action from this Court had death not intervened. In Man is not perfect. At one time or another, he may commit a
then prevailing. In the en banc case of Odayat vs. deciding this case, the Court emphasizes that mistake. But we should not look only at his sin. We should
Amante,18 complainant charged Amante, a clerk of court, "(t)he personal behavior of a judge, not only upon also consider the man's sincerity in his repentance, his
with oppression, immorality and falsification of public the bench but also in his everyday life, should be genuine effort at restitution and his eventual triumph in the
document. The complainant Odayat alleged among others " above reproach and free from the appearance of reformation of his life.
x x x that respondent is cohabiting with one Beatriz Jornada, impropriety. He should maintain high ethical
with whom he begot many children, even while his spouse principles and sense of propriety without which he This respondent should not be judged solely and finally by
Filomena Abella is still alive x x x." In order to rebut the cannot preserve the faith of the people in the what took place some 46 years ago. He may have
charge of immorality, Amante " x x x presented in evidence judiciary, so indispensable in an orderly society. committed an indiscretion in the past. But having repented
the certification (of the) x x x Local Civil Registrar x x x For the judicial office circumscribes the personal for it, such youthful mistake should not forever haunt him
attesting that x x x Filomena Abella was married to one conduct of a judge and imposes a number of and should not totally destroy his career and render inutile
Eliseo Portales on February 16, 1948. Respondent's restrictions thereon, which he has to observe his otherwise unblemished record. Indeed, it should not
contention is that his marriage with Filomena Abella was faithfully as the price he has to pay for accepting demolish completely what he built in his public life since
void ab initio, because of her previous marriage with said and occupying an exalted position in the then. Much less should it absolutely deprive him and/or his
Eliseo Portales." This Court ruled that "Filomena Abella's administration of justice."24 It is against this heirs of the rewards and fruits of his long and dedicated
marriage with the respondent was void ab initio under standard that we must gauge the public and service in government. For these reasons, dismissal from
Article 80 [4] of the New Civil Code, and no judicial decree private life of Judge Cantero. service as recommended by the Office of the Court
is necessary to establish the invalidity of void marriages." 19 Administrator would be too harsh.
The conduct of the respondent judge in his
Now, per current jurisprudence, "a marriage though void still personal life falls short of this standard because However, we also cannot just gloss over the fact that he
needs x x x a judicial declaration of such fact"20 before any the record reveals he had two families. The record was remiss in attending to the needs of his children of his
party thereto "can marry again; otherwise, the second also shows that he did not attend to the needs, first marriage -- children whose filiation he did not deny. He
marriage will also be void."21 This was expressly provided support and education of his children of his first neglected them and refused to support them until they came
under Article 4022 of the Family Code. However, the marriage. Such is conduct unbecoming a trial up with this administrative charge. For such conduct, this
marriage of Judge Cantero to Nieves Ygay took place and magistrate. Thus, the late Judge Cantero "violated Court would have imposed a penalty. But in view of his
all their children were born before the promulgation of Canon 3 of the Canons of Judicial Ethics which death prior to the promulgation of this Decision, dismissal of
Wiegel vs. Sempio-Diy and before the effectivity of the mandates that '[a] judge's official conduct should the case is now in order.
Family Code. Hence, the doctrine in Odayat vs. Amante be free from the appearance of impropriety, and
applies in favor of respondent. his personal behavior, not only upon the bench WHEREFORE, premises considered, this case is
and in the performance of judicial duties, but also hereby DISMISSED.
On the other hand, the charge of falsification will not in his everyday life, should be beyond reproach,'
prosper either because it is based on a finding of guilt in the and Canon 2 of the Code of Judicial Conduct
SO ORDERED.
bigamy charge. Since, as shown in the preceding which provides that '[a] judge should avoid
discussion, the bigamy charge cannot stand, so too must impropriety and the appearance of impropriety in
all activities.'"25chanroblesvirtuallawlibrary G.R. No. 122749 July 31, 1996
the accusation of falsification fail. Furthermore, the
respondent judge's belief in good faith that his first marriage
was void shows his lack of malice in filling up these public A Penalty of Suspension is Warranted
ANTONIO A. S. VALDEZ, petitioner, Stella Eloisa and Joaquin Pedro shall be placed in provisions on ownership found in the Civil Code shall
vs. the custody of their mother, herein respondent apply.3 (Emphasis supplied.)
REGIONAL TRIAL COURT, BRANCH 102, QUEZON Consuelo Gomez-Valdes.
CITY, and CONSUELO M. In addressing specifically the issue regarding the disposition
GOMEZ-VALDEZ, respondents. The petitioner and respondent shall have visitation of the family dwelling, the trial court said:
rights over the children who are in the custody of
the other. Considering that this Court has already declared the
marriage between petitioner and respondent as null and
VITUG, J.:p (3) The petitioner and the respondent are directed void ab initio, pursuant to Art. 147, the property regime of
to start proceedings on the liquidation of their petitioner and respondent shall be governed by the rules on
The petition for new bewails, purely on the question of law, common properties as defined by Article 147 of ownership.
an alleged error committed by the Regional Trial Court in the Family Code, and to comply with the provisions
Civil Case No. Q-92-12539. Petitioner avers that the court a of Articles 50, 51, and 52 of the same code, within The provisions of Articles 102 and 129 of the Family Code
quo has failed to apply the correct law that should govern thirty (30) days from notice of this decision. finds no application since Article 102 refers to the procedure
the disposition of a family dwelling in a situation where a for the liquidation of the conjugal partnership property and
marriage is declared void ab initio because of psychological Let a copy of this decision be furnished the Local Article 129 refers to the procedure for the liquidation of
incapacity on the part of either or both parties in the Civil Registrar of Mandaluyong, Metro Manila, for the absolute community of property.4
contract. proper recording in the registry of
marriages.2 (Emphasis ours.) Petitioner moved for a reconsideration of the order. The
The pertinent facts giving rise to this incident are, by large, motion was denied on 30 October 1995.
not in dispute. Consuelo Gomez sought a clarification of that
portion of the decision directing compliance with In his recourse to this Court, petitioner submits that Articles
Antonio Valdez and Consuelo Gomez were married on 05 Articles 50, 51 and 52 of the Family Code. She 50, 51 and 52 of the Family Code should be held controlling:
January 1971. Begotten during the marriage were five asserted that the Family Code contained no he argues that:
children. In a petition, dated 22 June 1992, Valdez sought provisions on the procedure for the liquidation of
the declaration of nullity of the marriage pursuant to Article common property in "unions without marriage."
I
36 of the Family code (docketed Civil Case No. Q-92-12539, Parenthetically, during the hearing of the motion,
Regional Trial Court of Quezon City, Branch 102). After the the children filed a joint affidavit expressing their
desire to remain with their father, Antonio Valdez, Article 147 of the Family Code does not apply to cases
hearing the parties following the joinder of issues, the trial
herein petitioner. where the parties are psychologically incapacitated.
court,1 in its decision of 29 July 1994, granted the
petition, viz:
In an order, dated 05 May 1995, the trial court II
WHEREFORE, judgment is hereby rendered as follows: made the following clarification:
Articles 50, 51 and 52 in relation to Articles 102 and 129 of
Consequently, considering that Article 147 of the the Family Code govern the disposition of the family
(1) The marriage of petitioner Antonio Valdez and
Family Code explicitly provides that the property dwelling in cases where a marriage is declared void ab initio,
respondent Consuelo Gomez-Valdez is hereby declared
acquired by both parties during their union, in the including a marriage declared void by reason of the
null and void under Article 36 of the Family Code on the
absence of proof to the contrary, are presumed to psychological incapacity of the spouses.
ground of their mutual psychological incapacity to comply
with their essential marital obligations; have been obtained through the joint efforts of the
parties and will be owned by them in equal shares, III
plaintiff and defendant will own their "family
(2) The three older children, Carlos Enrique III, Antonio
home" and all their properties for that matter in Assuming arguendo that Article 147 applies to marriages
Quintin and Angela Rosario shall choose which parent they
equal shares. declared void ab initio on the ground of the psychological
would want to stay with.
incapacity of a spouse, the same may be read consistently
In the liquidation and partition of properties owned with Article 129.
in common by the plaintiff and defendant, the
IV other, so exclusively live together as husband and exclusively with each other (as husband and wife), only the
wife under a void marriage or without the benefit of property acquired by both of them through their actual joint
It is necessary to determine the parent with whom majority marriage. The term "capacitated" in the provision contribution of money, property or industry shall be owned
of the children wish to stay.5 (in the first paragraph of the law) refers to the legal in common and in proportion to their respective
capacity of a party to contract marriage, i.e., any contributions. Such contributions and corresponding shares,
"male or female of the age of eighteen years or however, are prima facie presumed to be equal. The share
The trial court correctly applied the law. In a void marriage,
upwards not under any of the impediments of any party who is married to another shall accrue to the
regardless of the cause thereof, the property relations of the
mentioned in Articles 37 and 38"7 of the Code. absolute community or conjugal partnership, as the case
parties during the period of cohabitation is governed by the
may be, if so existing under a valid marriage. If the party
provisions of Article 147 or Article 148, such as the case
Under this property regime, property acquired by who has acted in bad faith is not validly married to another,
may be, of the Family Code. Article 147 is a remake of
both spouses through their work and industry shall his or her share shall be forfeited in the manner already
Article 144 of the Civil Code as interpreted and so applied in
be governed by the rules on equal co-ownership. heretofore expressed. 11
previous cases;6 it provides:
Any property acquired during the union is prima
facie presumed to have been obtained through In deciding to take further cognizance of the issue on the
Art. 147. When a man and a woman who are capacitated to
their joint efforts. A party who did not participate in settlement of the parties' common property, the trial court
marry each other, live exclusively with each other as
the acquisition of the property shall be considered acted neither imprudently nor precipitately; a court which
husband and wife without the benefit of marriage or under a
as having contributed thereto jointly if said party's has jurisdiction to declare the marriage a nullity must be
void marriage, their wages and salaries shall be owned by
"efforts consisted in the care and maintenance of deemed likewise clothed in authority to resolve incidental
them in equal shares and the property acquired by both of
the family household."8 Unlike the conjugal and consequential matters. Nor did it commit a reversible
them through their work or industry shall be governed by the
partnership of gains, the fruits of the couple's error in ruling that petitioner and private respondent own the
rules on co-ownership.
separate property are not included in the "family home" and all their common property in equal
co-ownership. shares, as well as in concluding that, in the liquidation and
In the absence of proof to the contrary, properties acquired partition of the property owned in common by them, the
while they lived together shall be presumed to have been provisions on co-ownership under the Civil Code, not
Article 147 of the Family Code, in the substance
obtained by their joint efforts, work or industry, and shall be Articles 50, 51 and 52, in relation to Articles 102 and
and to the above extent, has clarified Article 144 of
owned by them in equal shares. For purposes of this Article, 129, 12 of the Family Code, should aptly prevail. The rules
the Civil Code; in addition, the law now expressly
a party who did not participate in the acquisition by the other set up to govern the liquidation of either the absolute
provides that —
party of any property shall be deemed to have contributed community or the conjugal partnership of gains, the
jointly in the acquisition thereof in the former's efforts property regimes recognized for valid and voidable
consisted in the care and maintenance of the family and of (a) Neither party can dispose or encumber by
marriages (in the latter case until the contract is annulled),
the household. act intervivos his or her share in co-ownership
are irrelevant to the liquidation of the co-ownership that
property, without consent of the other, during the
exists between common-law spouses. The first paragraph
period of cohabitation; and
Neither party can encumber or dispose by acts inter vivos of of Articles 50 of the Family Code, applying paragraphs (2),
his or her share in the property acquired during cohabitation (3), (4) and 95) of Article 43, 13 relates only, by its explicit
and owned in common, without the consent of the other, (b) In the case of a void marriage, any party in bad terms, to voidable marriages and, exceptionally,
until after the termination of their cohabitation. faith shall forfeit his or her share in the to void marriages under Article 40 14 of the Code, i.e., the
co-ownership in favor of their common children; in declaration of nullity of a subsequent marriage contracted
default thereof or waiver by any or all of the by a spouse of a prior void marriage before the latter is
When only one of the parties to a void marriage is in good
common children, each vacant share shall belong judicially declared void. The latter is a special rule that
faith, the share of the party in bad faith in the ownership
to the respective surviving descendants, or still in somehow recognizes the philosophy and an old doctrine
shall be forfeited in favor of their common children. In case
default thereof, to the innocent party. The forfeiture that void marriages are inexistent from the very beginning
of default of or waiver by any or all of the common children
shall take place upon the termination of the and no judicial decree is necessary to establish their nullity.
or their descendants, each vacant share shall belong to the
cohabitation9 or declaration of nullity of the In now requiring for purposes of remarriage, the declaration
innocent party. In all cases, the forfeiture shall take place
marriage. 10 of nullity by final judgment of the previously contracted void
upon the termination of the cohabitation.
marriage, the present law aims to do away with any
When the common-law spouses suffer from a legal continuing uncertainty on the status of the second marriage.
This particular kind of co-ownership applies when a man
impediment to marry or when they do not live It is not then illogical for the provisions of Article 43, in
and a woman, suffering no illegal impediment to marry each
relation to Articles 41 15 and 42, 16 of the Family Code, on November 10, 1992, with respondent Susan Yee respondent presented: 1) the marriage certificate of the
the effects of the termination of a subsequent marriage Cariño (hereafter referred to as Susan Yee), with deceased and the petitioner which bears no marriage
contracted during the subsistence of a previous marriage to whom he had no children in their almost ten year license number; 5 and 2) a certification dated March 9, 1994,
be made applicable pro hac vice. In all other cases, it is not cohabitation starting way back in 1982. from the Local Civil Registrar of San Juan, Metro Manila,
to be assumed that the law has also meant to have which reads –
coincident property relations, on the one hand, between In 1988, SPO4 Santiago S. Cariño became ill and
spouses in valid and voidable marriages (before annulment) bedridden due to diabetes complicated by This is to certify that this Office has no record of marriage
and, on the other, between common-law spouses or pulmonary tuberculosis. He passed away on license of the spouses SANTIAGO CARINO (sic) and
spouses of void marriages, leaving to ordain, on the latter November 23, 1992, under the care of Susan Yee, SUSAN NICDAO, who are married in this municipality on
case, the ordinary rules on co-ownership subject to the who spent for his medical and burial expenses. June 20, 1969. Hence, we cannot issue as requested a true
provisions of the Family Code on the "family home," i.e., the Both petitioner and respondent filed claims for copy or transcription of Marriage License number from the
provisions found in Title V, Chapter 2, of the Family Code, monetary benefits and financial assistance records of this archives.
remain in force and effect regardless of the property regime pertaining to the deceased from various
of the spouses. government agencies. Petitioner Susan Nicdao This certification is issued upon the request of Mrs. Susan
was able to collect a total of P146,000.00 from Yee Cariño for whatever legal purpose it may serve. 6
WHEREFORE, the questioned orders, dated 05 May 1995 “MBAI, PCCUI, Commutation, NAPOLCOM, [and]
and 30 October 1995, of the trial court are AFFIRMED. No Pag-ibig,” 3 while respondent Susan Yee received
On August 28, 1995, the trial court ruled in favor of
costs. a total of P21,000.00 from “GSIS Life, Burial (GSIS)
respondent, Susan Yee, holding as follows:
and burial (SSS).” 4
G.R. No. 132529. February 2, 2001
WHEREFORE, the defendant is hereby ordered to pay the
On December 14, 1993, respondent Susan Yee
plaintiff the sum of P73,000.00, half of the amount which
SUSAN NICDAO CARIÑO, petitioner, filed the instant case for collection of sum of
was paid to her in the form of death benefits arising from the
vs. money against petitioner Susan Nicdao praying,
death of SPO4 Santiago S. Cariño, plus attorney’s fees in
SUSAN YEE CARIÑO, respondent. inter alia, that petitioner be ordered to return to her
the amount of P5,000.00, and costs of suit.
at least one-half of the one hundred forty-six
thousand pesos (P146,000.00) collectively
DECISION IT IS SO ORDERED. 7
denominated as “death benefits” which she
(petitioner) received from “MBAI, PCCUI,
YNARES-SANTIAGO, J.: Commutation, NAPOLCOM, [and] Pag-ibig.” On appeal by petitioner to the Court of Appeals, the latter
Despite service of summons, petitioner failed to file affirmed in toto the decision of the trial court. Hence, the
The issue for resolution in the case at bar hinges on the her answer, prompting the trial court to declare her instant petition, contending that:
validity of the two marriages contracted by the deceased in default.
SPO4 Santiago S. Cariño, whose “death benefits” is now I.
the subject of the controversy between the two Susans Respondent Susan Yee admitted that her
whom he married. 1âwphi1.nêt marriage to the deceased took place during the THE HONORABLE COURT OF APPEALS GRAVELY
subsistence of, and without first obtaining a judicial ERRED IN AFFIRMING THE FINDINGS OF THE LOWER
Before this Court is a petition for review on certiorari declaration of nullity of, the marriage between COURT THAT VDA. DE CONSUEGRA VS. GSIS IS
seeking to set aside the decision 1 of the Court of Appeals in petitioner and the deceased. She, however, APPLICABLE TO THE CASE AT BAR.
CA-G.R. CV No. 51263, which affirmed in toto the claimed that she had no knowledge of the previous
decision 2 of the Regional Trial Court of Quezon City, marriage and that she became aware of it only at
II.
Branch 87, in Civil Case No. Q-93-18632. the funeral of the deceased, where she met
petitioner who introduced herself as the wife of the
deceased. To bolster her action for collection of THE HONORABLE COURT OF APPEALS GRAVELY
During the lifetime of the late SPO4 Santiago S. Cariño, he
sum of money, respondent contended that the ERRED IN APPLYING EQUITY IN THE INSTANT CASE
contracted two marriages, the first was on June 20, 1969,
marriage of petitioner and the deceased is void ab INSTEAD OF THE CLEAR AND UNEQUIVOCAL
with petitioner Susan Nicdao Cariño (hereafter referred to
initio because the same was solemnized without MANDATE OF THE FAMILY CODE.
as Susan Nicdao), with whom he had two offsprings,
namely, Sahlee and Sandee Cariño; and the second was on the required marriage license. In support thereof,
III. marriages exempt from the license requirement. A a party can enter into a second marriage, otherwise, the
marriage license, therefore, was indispensable to second marriage would also be void.
THE HONORABLE COURT OF APPEALS GRAVELY the validity of their marriage. This notwithstanding,
ERRED IN NOT FINDING THE CASE OF VDA. DE the records reveal that the marriage contract of Accordingly, the declaration in the instant case of nullity of
CONSUEGRA VS GSIS TO HAVE BEEN MODIFIED, petitioner and the deceased bears no marriage the previous marriage of the deceased and petitioner Susan
AMENDED AND EVEN ABANDONED BY THE license number and, as certified by the Local Civil Nicdao does not validate the second marriage of the
ENACTMENT OF THE FAMILY CODE. 8 Registrar of San Juan, Metro Manila, their office deceased with respondent Susan Yee. The fact remains
has no record of such marriage license. that their marriage was solemnized without first obtaining a
In Republic v. Court of Appeals, 15 the Court held judicial decree declaring the marriage of petitioner Susan
Under Article 40 of the Family Code, the absolute nullity of a
that such a certification is adequate to prove the Nicdao and the deceased void. Hence, the marriage of
previous marriage may be invoked for purposes of
non-issuance of a marriage license. Absent any respondent Susan Yee and the deceased is, likewise, void
remarriage on the basis solely of a final judgment declaring
circumstance of suspicion, as in the present case, ab initio.
such previous marriage void. Meaning, where the absolute
the certification issued by the local civil registrar
nullity of a previous marriage is sought to be invoked for
enjoys probative value, he being the officer
purposes of contracting a second marriage, the sole basis One of the effects of the declaration of nullity of marriage is
charged under the law to keep a record of all data
acceptable in law, for said projected marriage to be free the separation of the property of the spouses according to
relative to the issuance of a marriage license.
from legal infirmity, is a final judgment declaring the the applicable property regime. 16 Considering that the two
previous marriage void. 9 However, for purposes other than marriages are void ab initio, the applicable property regime
remarriage, no judicial action is necessary to declare a Such being the case, the presumed validity of the would not be absolute community or conjugal partnership of
marriage an absolute nullity. For other purposes, such as marriage of petitioner and the deceased has been property, but rather, be governed by the provisions of
but not limited to the determination of heirship, legitimacy or sufficiently overcome. It then became the burden Articles 147 and 148 of the Family Code on “Property
illegitimacy of a child, settlement of estate, dissolution of of petitioner to prove that their marriage is valid Regime of Unions Without Marriage.”
property regime, or a criminal case for that matter, the court and that they secured the required marriage
may pass upon the validity of marriage even after the death license. Although she was declared in default
Under Article 148 of the Family Code, which refers to the
of the parties thereto, and even in a suit not directly before the trial court, petitioner could have
property regime of bigamous marriages, adulterous
instituted to question the validity of said marriage, so long squarely met the issue and explained the absence
relationships, relationships in a state of concubine,
as it is essential to the determination of the case. 10 In such of a marriage license in her pleadings before the
relationships where both man and woman are married to
instances, evidence must be adduced, testimonial or Court of Appeals and this Court. But petitioner
other persons, multiple alliances of the same married
documentary, to prove the existence of grounds rendering conveniently avoided the issue and chose to
man, 17 -
such a previous marriage an absolute nullity. These need refrain from pursuing an argument that will put her
not be limited solely to an earlier final judgment of a court case in jeopardy. Hence, the presumed validity of
their marriage cannot stand. “... [O]nly the properties acquired by both of the parties
declaring such previous marriage void. 11
through their actual joint contribution of money, property, or
industry shall be owned by them in common in proportion to
It is clear therefore that the Court is clothed with sufficient It is beyond cavil, therefore, that the marriage
their respective contributions ...”
authority to pass upon the validity of the two marriages in between petitioner Susan Nicdao and the
this case, as the same is essential to the determination of deceased, having been solemnized without the
necessary marriage license, and not being one of In this property regime, the properties acquired by the
who is rightfully entitled to the subject “death benefits” of the
the marriages exempt from the marriage license parties through their actual joint contribution shall belong
deceased.
requirement, is undoubtedly void ab initio. to the co-ownership. Wages and salaries earned by each
party belong to him or her exclusively. Then too,
Under the Civil Code, which was the law in force when the contributions in the form of care of the home, children and
marriage of petitioner Susan Nicdao and the deceased was It does not follow from the foregoing disquisition,
household, or spiritual or moral inspiration, are excluded in
solemnized in 1969, a valid marriage license is a requisite however, that since the marriage of petitioner and
this regime. 18
of marriage, 12 and the absence thereof, subject to certain the deceased is declared void ab initio, the “death
exceptions, 13 renders the marriage void ab initio. 14 benefits” under scrutiny would now be awarded to
respondent Susan Yee. To reiterate, under Article Considering that the marriage of respondent Susan Yee
40 of the Family Code, for purposes of remarriage, and the deceased is a bigamous marriage, having been
In the case at bar, there is no question that the marriage of solemnized during the subsistence of a previous marriage
there must first be a prior judicial declaration of the
petitioner and the deceased does not fall within the then presumed to be valid (between petitioner and the
nullity of a previous marriage, though void, before
deceased), the application of Article 148 is therefore in When only one of the parties to a void marriage is Consequently, whether as conjugal partner in a still
order. in good faith, the share of the party in bad faith in subsisting marriage or as such putative heir she has an
the co-ownership shall be forfeited in favor of their interest in the husband’s share in the property here in
The disputed P146,000.00 from MBAI [AFP Mutual Benefit common children. In case of default of or waiver by dispute....” And with respect to the right of the second wife,
Association, Inc.], NAPOLCOM, Commutation, Pag-ibig, any or all of the common children or their this Court observed that although the second marriage can
and PCCUI, are clearly renumerations, incentives and descendants, each vacant share shall belong to be presumed to be void ab initio as it was celebrated while
benefits from governmental agencies earned by the the respective surviving descendants. In the the first marriage was still subsisting, still there is need for
deceased as a police officer. Unless respondent Susan Yee absence of descendants, such share shall belong judicial declaration of such nullity. And inasmuch as the
presents proof to the contrary, it could not be said that she to the innocent party. In all cases, the forfeiture conjugal partnership formed by the second marriage was
contributed money, property or industry in the acquisition of shall take place upon termination of the dissolved before judicial declaration of its nullity, “[t]he only
these monetary benefits. Hence, they are not owned in cohabitation. just and equitable solution in this case would be to
common by respondent and the deceased, but belong to recognize the right of the second wife to her share of
the deceased alone and respondent has no right In contrast to Article 148, under the foregoing one-half in the property acquired by her and her husband,
whatsoever to claim the same. By intestate succession, the article, wages and salaries earned by either party and consider the other half as pertaining to the conjugal
said “death benefits” of the deceased shall pass to his legal during the cohabitation shall be owned by the partnership of the first marriage.” 21
heirs. And, respondent, not being the legal wife of the parties in equal shares and will be divided equally
deceased is not one of them. between them, even if only one party earned the It should be stressed, however, that the aforecited decision
wages and the other did not contribute is premised on the rule which requires a prior and separate
As to the property regime of petitioner Susan Nicdao and thereto. 19 Conformably, even if the disputed judicial declaration of nullity of marriage. This is the reason
the deceased, Article 147 of the Family Code governs. This “death benefits” were earned by the deceased why in the said case, the Court determined the rights of the
article applies to unions of parties who are legally alone as a government employee, Article 147 parties in accordance with their existing property regime.
capacitated and not barred by any impediment to contract creates a co-ownership in respect thereto, entitling
marriage, but whose marriage is nonetheless void for other the petitioner to share one-half thereof. As there is In Domingo v. Court of Appeals, 22 however, the Court,
reasons, like the absence of a marriage license. Article 147 no allegation of bad faith in the present case, both construing Article 40 of the Family Code, clarified that a
of the Family Code reads - parties of the first marriage are presumed to be in prior and separate declaration of nullity of a marriage is an
good faith. Thus, one-half of the subject “death all important condition precedent only for purposes of
benefits” under scrutiny shall go to the petitioner remarriage. That is, if a party who is previously married
Art. 147. When a man and a woman who are capacitated to
as her share in the property regime, and the other wishes to contract a second marriage, he or she has to
marry each other, live exclusively with each other as
half pertaining to the deceased shall pass by, obtain first a judicial decree declaring the first marriage void,
husband and wife without the benefit of marriage or under a
intestate succession, to his legal heirs, namely, his before he or she could contract said second marriage,
void marriage, their wages and salaries shall be owned by
children with Susan Nicdao. otherwise the second marriage would be void. The same
them in equal shares and the property acquired by both of
them through their work or industry shall be governed by the rule applies even if the first marriage is patently void
rules on co-ownership. In affirming the decision of the trial court, the Court because the parties are not free to determine for
of Appeals relied on the case of Vda. de themselves the validity or invalidity or their marriage.
Consuegra v. Government Service Insurance However, for purposes other than to remarry, like for filing a
In the absence of proof to the contrary, properties acquired
System, 20 where the Court awarded one-half of case for collection of sum of money anchored on a marriage
while they lived together shall be presumed to have been
the retirement benefits of the deceased to the first claimed to be valid, no prior and separate judicial
obtained by their joint efforts, work or industry, and shall be
wife and the other half, to the second wife, holding declaration of nullity is necessary. All that a party has to do
owned by them in equal shares. For purposes of this Article,
that: is to present evidence, testimonial or documentary, that
a party who did not participate in the acquisition by the other
would prove that the marriage from which his or her rights
party of any property shall be deemed to have contributed
“... [S]ince the defendant’s first marriage has not flow is in fact valid. Thereupon, the court, if material to the
jointly in the acquisition thereof if the former’s efforts
been dissolved or declared void the conjugal determination of the issues before it, will rule on the status
consisted in the care and maintenance of the family and of
partnership established by that marriage has not of the marriage involved and proceed to determine the
the household.
ceased. Nor has the first wife lost or relinquished rights of the parties in accordance with the applicable laws
her status as putative heir of her husband under and jurisprudence. Thus, in Niñal v. Bayadog, 23 the Court
xxx explained:
the new Civil Code, entitled to share in his estate
upon his death should she survive him.
[T]he court may pass upon the validity of marriage even in a denying reconsideration. The assailed Decision Bacolod City. Both marriages were consummated when out
suit not directly instituted to question the same so long as it affirmed the ruling of the Regional Trial Court of the first consortium, Ma. Thelma Oliva bore accused two
is essential to the determination of the case. This is without (RTC) of Bacolod City in Criminal Case No. 13848, children, while a child, Vincent Paul, Jr. was sired by
prejudice to any issue that may arise in the case. When which convicted herein petitioner of bigamy as accused with complainant Ma. Consuelo Tan.
such need arises, a final judgment of declaration of nullity is follows:
necessary even if the purpose is other than to remarry. The "On October 5, 1992, a letter-complaint for bigamy was filed
clause “on the basis of a final judgment declaring such "WHEREFORE, finding the guilt of accused Dr. by complainant through counsel with the City Prosecutor of
previous marriage void” in Article 40 of the Family Code Vincent Paul G. Mercado a.k.a. Dr. Vincent G. Bacolod City, which eventually resulted [in] the institution of
connoted that such final judgment need not be obtained Mercado of the crime of Bigamy punishable under the present case before this Court against said accused, Dr.
only for purpose of remarriage. Article 349 of the Revised Penal Code to have Vincent G. Mercado, on March 1, 1993 in an Information
been proven beyond reasonable doubt, [the court dated January 22, 1993.
WHEREFORE, the petition is GRANTED, and the decision hereby renders] judgment imposing upon him a
of the Court of Appeals in CA-G.R. CV No. 51263 which prison term of three (3) years, four (4) months and "On November 13, 1992, or more than a month after the
affirmed the decision of the Regional Trial Court of Quezon fifteen (15) days of prision correccional, as bigamy case was lodged in the Prosecutor’s Office,
City ordering petitioner to pay respondent the sum of minimum of his indeterminate sentence, to eight (8) accused filed an action for Declaration of Nullity of Marriage
P73,000.00 plus attorney’s fees in the amount of P5,000.00, years and twenty-one (21) days of prision mayor, against Ma. Thelma V. Oliva in RTC-Br. 22, Cebu City, and
is REVERSED and SET ASIDE. The complaint in Civil Case as maximum, plus accessory penalties provided in a Decision dated May 6, 1993 the marriage between
No. Q-93-18632, is hereby DISMISSED. No by law. Vincent G. Mercado and Ma. Thelma V. Oliva was declared
pronouncement as to costs.1âwphi1.nêt null and void.
Costs against accused."2
SO ORDERED. "Accused is charged [with] bigamy under Article 349 of the
The Facts Revised Penal Code for having contracted a second
G.R. No. 137110 August 1, 2000 marriage with herein complainant Ma. Consuelo Tan on
The facts are quoted by Court of Appeals (CA) June 27, 1991 when at that time he was previously united in
VINCENT PAUL G. MERCADO a.k.a. VINCENT G. from the trial court’s judgment, as follows: "From lawful marriage with Ma. Thelma V. Oliva on April 10, 1976
MERCADO, petitioner, the evidence adduced by the parties, there is no at Cebu City, without said first marriage having been legally
vs. dispute that accused Dr. Vincent Mercado and dissolved. As shown by the evidence and admitted by
CONSUELO TAN, respondent. complainant Ma. Consuelo Tan got married on accused, all the essential elements of the crime are present,
June 27, 1991 before MTCC-Bacolod City Br. 7 namely: (a) that the offender has been previously legally
Judge Gorgonio J. Ibañez [by reason of] which a married; (2) that the first marriage has not been legally
DECISION
Marriage Contract was duly executed and signed dissolved or in case the spouse is absent, the absent
by the parties. As entered in said document, the spouse could not yet be presumed dead according to the
PANGANIBAN, J.: Civil Code; (3) that he contract[ed] a second or subsequent
status of accused was ‘single’. There is no dispute
either that at the time of the celebration of the marriage; and (4) that the second or subsequent marriage
A judicial declaration of nullity of a previous marriage is wedding with complainant, accused was actually a ha[d] all the essential requisites for validity. x x x
necessary before a subsequent one can be legally married man, having been in lawful wedlock with
contracted. One who enters into a subsequent marriage Ma. Thelma Oliva in a marriage ceremony "While acknowledging the existence of the two marriage[s],
without first obtaining such judicial declaration is guilty of solemnized on April 10, 1976 by Judge Leonardo accused posited the defense that his previous marriage
bigamy. This principle applies even if the earlier union is B. Cañares, CFI-Br. XIV, Cebu City per Marriage ha[d] been judicially declared null and void and that the
characterized by statute as "void." Certificate issued in connection therewith, which private complainant had knowledge of the first marriage of
matrimony was further blessed by Rev. Father accused.
The Case Arthur Baur on October 10, 1976 in religious rites
at the Sacred Heart Church, Cebu City. In the "It is an admitted fact that when the second marriage was
Before us is a Petition for Review on Certiorari assailing the same manner, the civil marriage between accused entered into with Ma. Consuelo Tan on June 27, 1991,
July 14, 1998 Decision of the Court of Appeals (CA) 1 in and complainant was confirmed in a church accused’s prior marriage with Ma. Thelma V. Oliva was
CA-GR CR No. 19830 and its January 4, 1999 Resolution ceremony on June 29, 1991 officiated by Msgr. subsisting, no judicial action having yet been initiated or any
Victorino A. Rivas, Judicial Vicar, Diocese of
judicial declaration obtained as to the nullity of such prior Whether or not petitioner is entitled to an acquittal Petitioner contends, however, that he obtained a judicial
marriage with Ma. Thelma V. Oliva. Since no declaration of on the basis of reasonable doubt."6 declaration of nullity of his first marriage under Article 36 of
the nullity of his first marriage ha[d] yet been made at the the Family Code, thereby rendering it void ab initio. Unlike
time of his second marriage, it is clear that accused was a The Court’s Ruling voidable marriages which are considered valid until set
married man when he contracted such second marriage aside by a competent court, he argues that a void marriage
with complainant on June 27, 1991. He was still at the time is deemed never to have taken place at all.8 Thus, he
The Petition is not meritorious.
validly married to his first wife."3 concludes that there is no first marriage to speak of.
Petitioner also quotes the commentaries9 of former Justice
Main Issue:Effect of Nullity of Previous Marriage Luis Reyes that "it is now settled that if the first marriage is
Ruling of the Court of Appeals
void from the beginning, it is a defense in a bigamy charge.
Petitioner was convicted of bigamy under Article But if the first marriage is voidable, it is not a defense."
Agreeing with the lower court, the Court of Appeals stated:
349 of the Revised Penal Code, which provides:
Respondent, on the other hand, admits that the first
"Under Article 40 of the Family Code, ‘the absolute nullity of
"The penalty of prision mayor shall be imposed marriage was declared null and void under Article 36 of the
a previous marriage may be invoked for purposes of
upon any person who shall contract a second or Family Code, but she points out that that declaration came
remarriage on the basis solely of a final judgment declaring
subsequent marriage before the former marriage only after the Information had been filed. Hence, by then,
such previous marriage void.’ But here, the final judgment
has been legally dissolved, or before the absent the crime had already been consummated. She argues that
declaring null and void accused’s previous marriage came
spouse has been declared presumptively dead by a judicial declaration of nullity of a void previous marriage
not before the celebration of the second marriage, but after,
means of a judgment rendered in the proper must be obtained before a person can marry for a
when the case for bigamy against accused was already
proceedings." subsequent time.
tried in court. And what constitutes the crime of bigamy is
the act of any person who shall contract a second
subsequent marriage ‘before’ the former marriage has been The elements of this crime are as follows: We agree with the respondent.
legally dissolved."4
"1. That the offender has been legally married; To be sure, jurisprudence regarding the need for a judicial
Hence, this Petition.5 declaration of nullity of the previous marriage has been
2. That the marriage has not been legally characterized as "conflicting."10 In People v. Mendoza,11 a
dissolved or, in case his or her spouse is absent, bigamy case involving an accused who married three times,
The Issues
the absent spouse could not yet be presumed the Court ruled that there was no need for such declaration.
dead according to the Civil Code; In that case, the accused contracted a second marriage
In his Memorandum, petitioner raises the following issues: during the subsistence of the first. When the first wife died,
he married for the third time. The second wife then charged
3. That he contracts a second or subsequent
"A him with bigamy. Acquitting him, the Court held that the
marriage;
second marriage was void ab initio because it had been
Whether or not the element of previous legal marriage is contracted while the first marriage was still in effect. Since
4. That the second or subsequent marriage has all the second marriage was obviously void and illegal, the
present in order to convict petitioner.
the essential requisites for validity."7 Court ruled that there was no need for a judicial declaration
of its nullity. Hence, the accused did not commit bigamy
"B
When the Information was filed on January 22, when he married for the third time. This ruling was affirmed
1993, all the elements of bigamy were present. It is by the Court in People v. Aragon,12 which involved
Whether or not a liberal interpretation in favor of petitioner undisputed that petitioner married Thelma G. Oliva substantially the same facts.
of Article 349 of the Revised Penal Code punishing bigamy, on April 10, 1976 in Cebu City. While that marriage
in relation to Articles 36 and 40 of the Family Code, negates was still subsisting, he contracted a second But in subsequent cases, the Court impressed the need for
the guilt of petitioner. marriage, this time with Respondent Ma. Consuelo a judicial declaration of nullity. In Vda de Consuegra v.
Tan who subsequently filed the Complaint for GSIS,13 Jose Consuegra married for the second time while
"C bigamy. the first marriage was still subsisting. Upon his death, the
Court awarded one half of the proceeds of his retirement
benefits to the first wife and the other half to the second wife
and her children, notwithstanding the manifest nullity of the now explicitly required either as a cause of action The provision appeared in substantially the same form
second marriage. It held: "And with respect to the right of or a ground for defense; in fact, the requirement under Article 83 of the 1950 Civil Code and Article 41 of the
the second wife, this Court observes that although the for a declaration of absolute nullity of a marriage is Family Code. However, Article 40 of the Family Code, a
second marriage can be presumed to be void ab initio as it also for the protection of the spouse who, believing new provision, expressly requires a judicial declaration of
was celebrated while the first marriage was still that his or her marriage is illegal and void, marries nullity of the previous marriage, as follows:
subsisting, still there is need for judicial declaration of such again. With the judicial declaration of the nullity of
nullity." his or her first marriage, the person who marries "ART. 40. The absolute nullity of a previous marriage may
again cannot be charged with bigamy."18 be invoked for purposes of remarriage on the basis solely of
In Tolentino v. Paras,14 however, the Court again held that a final judgment declaring such marriage void."
judicial declaration of nullity of a void marriage was not Unlike Mendoza and Aragon, Domingo as well as
necessary. In that case, a man married twice. In his Death the other cases herein cited was not a criminal In view of this provision, Domingo stressed that a final
Certificate, his second wife was named as his surviving prosecution for bigamy. judgment declaring such marriage void was necessary.
spouse. The first wife then filed a Petition to correct the said Nonetheless, Domingo underscored the need for a Verily, the Family Code and Domingo affirm the earlier
entry in the Death Certificate. The Court ruled in favor of the judicial declaration of nullity of a void marriage on ruling in Wiegel. Thus, a Civil Law authority and member of
first wife, holding that "the second marriage that he the basis of a new provision of the Family Code, the Civil Code Revision Commitee has observed:
contracted with private respondent during the lifetime of the which came into effect several years after the
first spouse is null and void from the beginning and of no promulgation of Mendoza and Aragon.
"[Article 40] is also in line with the recent decisions of the
force and effect. No judicial decree is necessary to establish
Supreme Court that the marriage of a person may be null
the invalidity of a void marriage." In Mendoza and Aragon, the Court relied on and void but there is need of a judicial declaration of such
Section 29 of Act No. 3613 (Marriage Law), which fact before that person can marry again; otherwise, the
In Wiegel v. Sempio-Diy,15 the Court stressed the need for provided: second marriage will also be void (Wiegel v. Sempio-Diy,
such declaration. In that case, Karl Heinz Wiegel filed an Aug. 19/86, 143 SCRA 499, Vda. De Consuegra v. GSIS,
action for the declaration of nullity of his marriage to Lilia "Illegal marriages. — Any marriage subsequently 37 SCRA 315). This provision changes the old rule that
Olivia Wiegel on the ground that the latter had a prior contracted by any person during the lifetime of the where a marriage is illegal and void from its performance,
existing marriage. After pretrial, Lilia asked that she be first spouse shall be illegal and void from its no judicial decree is necessary to establish its validity
allowed to present evidence to prove, among others, that performance, unless: (People v. Mendoza, 95 Phil. 843; People v. Aragon, 100
her first husband had previously been married to another Phil. 1033)."20
woman. In holding that there was no need for such
(a) The first marriage was annulled or dissolved;
evidence, the Court ruled: "x x x There is likewise no need
In this light, the statutory mooring of the ruling
of introducing evidence about the existing prior marriage of
(b) The first spouse had been absent for seven in Mendoza and Aragon – that there is no need for a judicial
her first husband at the time they married each other, for
consecutive years at the time of the second declaration of nullity of a void marriage -- has been cast
then such a marriage though void still needs, according to
marriage without the spouse present having news aside by Article 40 of the Family Code. Such declaration is
this Court, a judicial declaration of such fact and for all legal
of the absentee being alive, or the absentee being now necessary before one can contract a second marriage.
intents and purposes she would still be regarded as a
generally considered as dead and believed to be Absent that declaration, we hold that one may be charged
married woman at the time she contracted her marriage
so by the spouse present at the time of contracting with and convicted of bigamy.
with respondent Karl Heinz Wiegel; x x x."
such subsequent marriage, the marriage as
contracted being valid in either case until declared The present ruling is consistent with our pronouncement
Subsequently, in Yap v. CA,16 the Court reverted to the
null and void by a competent court." in Terre v. Terre,21 which involved an administrative
ruling in People v. Mendoza, holding that there was no need
Complaint against a lawyer for marrying twice. In rejecting
for such declaration of nullity.
The Court held in those two cases that the said the lawyer’s argument that he was free to enter into a
provision "plainly makes a subsequent marriage second marriage because the first one was void ab initio,
In Domingo v. CA,17 the issue raised was whether a judicial the Court ruled: "for purposes of determining whether a
contracted by any person during the lifetime of his
declaration of nullity was still necessary for the recovery and person is legally free to contract a second marriage, a
first spouse illegal and void from its performance,
the separation of properties of erstwhile spouses. Ruling in judicial declaration that the first marriage was null and
and no judicial decree is necessary to establish its
the affirmative, the Court declared: "The Family Code has void ab initio is essential." The Court further noted that the
invalidity, as distinguished from mere annulable
settled once and for all the conflicting jurisprudence on the said rule was "cast into statutory form by Article 40 of the
marriages."19
matter. A declaration of the absolute nullity of a marriage is
Family Code." Significantly, it observed that the second In her Memorandum, respondent prays that the VITUG, J.:
marriage, contracted without a judicial declaration that the Court set aside the ruling of the Court of Appeals
first marriage was void, was "bigamous and criminal in insofar as it denied her claim of damages and At the pith of the controversy is the defense of the absolute
character." attorney’s fees.23 nullity of a previous marriage in an indictment for bigamy.
The majority opinion, penned by my esteemed brother, Mr.
Moreover, Justice Reyes, an authority in Criminal Law Her prayer has no merit. She did not appeal the Justice Artemio V. Panganiban, enunciates that it is only a
whose earlier work was cited by petitioner, changed his ruling of the CA against her; hence, she cannot judicially decreed prior void marriage which can constitute a
view on the subject in view of Article 40 of the Family Code obtain affirmative relief from this Court.24 In any defense against the criminal charge.
and wrote in 1993 that a person must first obtain a judicial event, we find no reason to reverse or set aside
declaration of the nullity of a void marriage before the pertinent ruling of the CA on this point, which The civil law rule stated in Article 40 of the Family Code is
contracting a subsequent marriage:22 we quote hereunder: a given but I have strong reservations on its application
beyond what appears to be its expressed context. The
"It is now settled that the fact that the first marriage is void "We are convinced from the totality of the evidence subject of the instant petition is a criminal prosecution, not a
from the beginning is not a defense in a bigamy charge. As presented in this case that Consuelo Tan is not the civil case, and the ponencia affirms the conviction of
with a voidable marriage, there must be a judicial innocent victim that she claims to be; she was well petitioner Vincent Paul G. Mercado for bigamy.
declaration of the nullity of a marriage before contracting the aware of the existence of the previous marriage
second marriage. Article 40 of the Family Code states that x when she contracted matrimony with Dr. Mercado. Article 40 of the Family code reads:
x x. The Code Commission believes that the parties to a The testimonies of the defense witnesses prove
marriage should not be allowed to assume that their this, and we find no reason to doubt said
"ART. 40. The absolute nullity of a previous marriage may
marriage is void, even if such is the fact, but must first testimonies.
be invoked for purposes of remarriage on the basis solely
secure a judicial declaration of nullity of their marriage
of a final judgment declaring such previous marriage void."
before they should be allowed to marry again. x x x." xxx xxx xxx
The phrase "for purposes of remarriage" is not at all
In the instant case, petitioner contracted a second marriage "Indeed, the claim of Consuelo Tan that she was insignificant. Void marriages, like void contracts, are
although there was yet no judicial declaration of nullity of his not aware of his previous marriage does not inexistent from the very beginning. It is only by way of
first marriage. In fact, he instituted the Petition to have the inspire belief, especially as she had seen that Dr. exception that the Family code requires a judicial
first marriage declared void only after complainant had filed Mercado had two (2) children with him. We are declaration of nullity of the previous marriage before a
a letter-complaint charging him with bigamy. By contracting convinced that she took the plunge anyway, subsequent marriage is contracted; without such
a second marriage while the first was still subsisting, he relying on the fact that the first wife would no declaration, the validity and the full legal consequence of
committed the acts punishable under Article 349 of the longer return to Dr. Mercado, she being by then the subsequent marriage would itself be in similar jeopardy
Revised Penal Code. already living with another man. under Article 53, in relation to Article 52, of the Family Code.
Parenthetically, I would daresay that the necessity of a
That he subsequently obtained a judicial declaration of the "Consuelo Tan can therefore not claim damages in judicial declaration of nullity of a void marriage for the
nullity of the first marriage was immaterial. To repeat, the this case where she was fully conscious of the purpose of remarriage should be held to refer merely to
crime had already been consummated by then. Moreover, consequences of her act. She should have known cases where it can be said that a marriage, at least
his view effectively encourages delay in the prosecution of that she would suffer humiliation in the event the ostensibly, had taken place. No such judicial declaration of
bigamy cases; an accused could simply file a petition to truth [would] come out, as it did in this case, nullity, in my view, should still be deemed essential when
declare his previous marriage void and invoke the ironically because of her personal instigation. If the "marriage," for instance, is between persons of the
pendency of that action as a prejudicial question in the there are indeed damages caused to her same sex or when either or both parties had not at all given
criminal case. We cannot allow that. reputation, they are of her own willful making."25 consent to the "marriage." Indeed, it is likely that Article 40
of the Family Code has been meant and intended to refer
Under the circumstances of the present case, he is guilty of WHEREFORE, the Petition is DENIED and the only to marriages declared void under the provisions of
the charge against him. assailed Decision AFFIRMED. Costs against Articles 35, 36, 37, 38 and 53 thereof.
petitioner.
Damages
SO ORDERED.
In fine, the Family Code, I respectfully submit, did not have YNARES-SANTIAGO, J.: Zenaida Biñas was acquitted for insufficiency of evidence.6
the effect of overturning the rule in criminal law and related
jurisprudence. The Revised Penal Code expresses: This petition for review on certiorari seeks to On appeal, the Court of Appeals affirmed with modification
reverse and set aside the decision1 of the Court of the decision of the trial court, as follows:
"Art. 349. Bigamy.---The penalty of prision mayor shall be Appeals in CA-G.R. No. 26135 which affirmed with
imposed upon any person who shall contract a second or modification the decision of the Regional Trial WHEREFORE, the Decision appealed from is hereby
subsequent marriage before the former marriage has Court, Branch 77, San Mateo, Rizal in Criminal MODIFIED as to the penalty imposed but AFFIRMED in all
been legally dissolved, or before the absent spouse has Case No. 2803 convicting petitioner Salvador S. other respects. Appreciating the mitigating circumstance
been declared presumptively dead by means of a judgment Abunado of bigamy. that accused is 76 years of age and applying the provisions
rendered in the proper proceedings. of the Indeterminate Sentence Law, the appellant is hereby
The records show that on September 18, 1967, sentenced to suffer an indeterminate prison term of two (2)
Surely, the foregoing provision contemplated an existing, Salvador married Narcisa Arceño at the Manila years, four (4) months and one (1) day of prision
not void, prior marriage. Covered by article 349 would thus City Hall before Rev. Pedro Tiangco.2 In 1988 correccional as Minimum to six (6) years and one (1) day of
be, for instance, a voidable marriage, it obviously being Narcisa left for Japan to work but returned to the prision mayor as Maximum. No costs.
valid and subsisting until set aside by a competent court. As Philippines in 1992, when she learned that her
early as People vs. Aragon,1 this Court has underscored: husband was having an extra-marital affair and SO ORDERED.7
has left their conjugal home.
"xxx Our Revised Penal Code is of recent enactment Petitioner is now before us on petition for review.
and had the rule enunciated in Spain and in America After earnest efforts, Narcisa found Salvador in
requiring judicial declaration of nullity of ab initio void Quezon City cohabiting with Fe Corazon Plato.
First, he argues that the Information was defective as it
marriages been within the contemplation of the She also discovered that on January 10, 1989,
stated that the bigamous marriage was contracted in 1995
legislature, an express provision to that effect would or Salvador contracted a second marriage with a
when in fact it should have been 1989.
should have been inserted in the law. In its absence, we certain Zenaida Biñas before Judge Lilian Dinulos
are bound by said rule of strict interpretation." Panontongan in San Mateo, Rizal.3
Indeed, an accused has the right to be informed of the
nature and cause of the accusation against him. 8 It is
Unlike a voidable marriage which legally exists until On January 19, 1995, an annulment case was filed
required that the acts and omissions complained of as
judicially annulled (and therefore not a defense in bigamy if by Salvador against Narcisa.4 On May 18, 1995, a
constituting the offense must be alleged in the Information.9
the second marriage were contracted prior to the decree case for bigamy was filed by Narcisa against
of annulment), the complete nullity, however, of a Salvador and Zenaida.5
previously contracted marriage, being a total nullity The real nature of the crime charged is determined by the
and inexistent, should be capable of being independently facts alleged in the Information and not by the title or
Salvador admitted that he first married Zenaida on
raised by way of a defense in a criminal case for bigamy. I designation of the offense contained in the caption of the
December 24, 1955 before a municipal trial court
see no incongruence between this rule in criminal law and Information. It is fundamental that every element of which
judge in Concepcion, Iloilo and has four children
that of the Family Code, and each may be applied within the the offense is comprised must be alleged in the Information.
with her prior to their separation in 1966. It
respective spheres of governance. What facts and circumstances are necessary to be alleged
appeared however that there was no evidence of
in the Information must be determined by reference to the
their 1955 marriage so he and Zenaida remarried
definition and essential elements of the specific crimes.10
Accordingly, I vote to grant the petition. on January 10, 1989, upon the request of their son
for the purpose of complying with the requirements
for his commission in the military. The question, therefore, is whether petitioner has been
G.R. No. 159218 March 30, 2004
sufficiently informed of the nature and cause of the
accusation against him, namely, that he contracted a
SALVADOR S. ABUNADO and ZENAIDA BIÑAS On May 18, 2001, the trial court convicted
subsequent marriage with another woman while his first
ABUNADO, Petitioners, petitioner Salvador Abunado of bigamy and
marriage was subsisting.
vs. sentenced him to suffer imprisonment of six (6)
PEOPLE OF THE PHILIPPINES, Responden years and one (1) day, as minimum, to eight (8)
years and one (1) day, as maximum. Petitioner The information against petitioner alleges:

DECISION
That in or about and sometime in the month of January, considering that a crime is committed against the is that the first marriage be subsisting at the time the second
1995 at the Municipality of San Mateo, Rizal place (sic) State and the crime of Bigamy is a public offense marriage is contracted.18
within the jurisdiction of this Honorable Court, the which can be denounced not only by the person
above-named accused, having been legally married to affected thereby but even by a civic-spirited citizen Thus, under the law, a marriage, even one which is void or
complainant Narcisa Abunado on September 16, 1967 who may come to know the same.14 voidable, shall be deemed valid until declared otherwise in a
which has not been legally dissolved, did then and judicial proceeding.19 In this case, even if petitioner
there willfully, unlawfully and feloniously contract a Third, petitioner claims that his petition for eventually obtained a declaration that his first marriage was
subsequent marriage to Zenaida Biñas Abunado on annulment/declaration of nullity of marriage was a void ab initio, the point is, both the first and the second
January 10, 1989 which has all the essential requisites of a prejudicial question, hence, the proceedings in the marriage were subsisting before the first marriage was
valid marriage. bigamy case should have been suspended during annulled.
the pendency of the annulment case. Petitioner, in
CONTRARY TO LAW.11 fact, eventually obtained a judicial declaration of Finally, petitioner claims that the penalty imposed on him
nullity of his marriage to Narcisa on October 29, was improper.
The statement in the information that the crime was 1999.15
committed "in or about and sometime in the month of Article 349 of the Revised Penal Code imposes the penalty
January, 1995," was an obvious typographical error, for the A prejudicial question has been defined as one of prision mayor for bigamy. Under the Indeterminate
same information clearly states that petitioner contracted a based on a fact distinct and separate from the Sentence Law, the court shall sentence the accused to an
subsequent marriage to Zenaida Biñas Abunado on crime but so intimately connected with it that it indeterminate penalty, the maximum term of which shall be
January 10, 1989. Petitioner’s submission, therefore, that determines the guilt or innocence of the accused, that which, in view of the attending circumstances, could be
the information was defective is untenable. and for it to suspend the criminal action, it must properly imposed under the Revised Penal Code, and the
appear not only that said case involves facts minimum term of which shall be within the range of the
The general rule is that a defective information cannot intimately related to those upon which the criminal penalty next lower to that prescribed by the Code for the
support a judgment of conviction unless the defect was prosecution would be based but also that in the offense. The penalty next lower would be based on the
cured by evidence during the trial and no objection appears resolution of the issue or issues raised in the civil penalty prescribed by the Code for the offense, without first
to have been raised.12 It should be remembered that case, the guilt or innocence of the accused would considering any modifying circumstance attendant to the
bigamy can be successfully prosecuted provided all its necessarily be determined. The rationale behind commission of the crime. The determination of the minimum
elements concur – two of which are a previous marriage the principle of suspending a criminal case in view penalty is left by law to the sound discretion of the court and
and a subsequent marriage which possesses all the of a prejudicial question is to avoid two conflicting it can be anywhere within the range of the penalty next
requisites for validity.13 All of these have been sufficiently decisions.16 lower without any reference to the periods into which it
established by the prosecution during the trial. Notably, might be subdivided. The modifying circumstances are
petitioner failed to object to the alleged defect in the The subsequent judicial declaration of the nullity of considered only in the imposition of the maximum term of
Information during the trial and only raised the same for the the first marriage was immaterial because prior to the indeterminate sentence.20
first time on appeal before the Court of Appeals. the declaration of nullity, the crime had already
been consummated. Moreover, petitioner’s In light of the fact that petitioner is more than 70 years of
Second, petitioner argues that Narcisa consented to his assertion would only delay the prosecution of age,21 which is a mitigating circumstance under Article 13,
marriage to Zenaida, which had the effect of absolving him bigamy cases considering that an accused could paragraph 2 of the Revised Penal Code, the maximum term
of criminal liability. simply file a petition to declare his previous of the indeterminate sentence should be taken from prision
marriage void and invoke the pendency of that mayor in its minimum period which ranges from six (6)
action as a prejudicial question in the criminal case. years and one (1) day to eight (8) years, while the minimum
In this regard, we agree with the Court of Appeals when it
We cannot allow that.17 term should be taken from prision correccional in any of its
ruled, thus:
periods which ranges from six (6) months and one (1) day to
The outcome of the civil case for annulment of six (6) years.
x x x, while he claims that there was condonation on the
petitioner’s marriage to Narcisa had no bearing
part of complainant when he entered into a bigamous
upon the determination of petitioner’s innocence or Therefore, the penalty imposed by the Court of Appeals, i.e.,
marriage, the same was likewise not established by clear
guilt in the criminal case for bigamy, because all two (2) years, four (4) months and one (1) day of prision
and convincing evidence. But then, a pardon by the
that is required for the charge of bigamy to prosper
offended party does not extinguish criminal action
correccional, as minimum, to six (6) years and one (1) day Under the Family Code, before one can contract a Conversely, if the person remarries without securing a
of prision mayor, as maximum, is proper. second marriage on the ground of nullity of the first judicial declaration of nullity of his previous marriage, he is
marriage, one must first secure a final judgment liable for bigamy.
WHEREFORE, in view of the foregoing, the decision of the declaring the first marriage void. Article 40 of the
Court of Appeals in CA-G.R. CR No. 26135, finding Family Code provides: Article 40 of the Family Code considers the marital vinculum
petitioner Salvador S. Abunado guilty beyond reasonable of the previous marriage to subsist for purposes of
doubt of the crime of bigamy, and sentencing him to suffer Art. 40. The absolute nullity of a previous marriage remarriage, unless the previous marriage is judicially
an indeterminate penalty of two (2) years, four (4) months may be invoked for purposes of remarriage on the declared void by final judgment. Thus, if the marital
and one (1) day of prision correccional, as minimum, to six basis solely of a final judgment declaring such vinculum of the previous marriage subsists because of the
(6) years and one (1) day of prision mayor, as maximum, is previous marriage void. absence of judicial declaration of its nullity, the second
AFFIRMED. marriage is contracted during the existence of the first
The Family Code took effect on 3 August 1988, marriage resulting in the crime of bigamy.
Costs de oficio. before the second marriage of Abunado on 10
January 1989. Under Article 40 of the Family Code, the marital vinculum of
SO ORDERED. a previous marriage that is void ab initio subsists only for
Prior to the Family Code, one could contract a purposes of remarriage. For purposes other than
subsequent marriage on the ground of nullity of the remarriage, marriages that are void ab initio, such as those
Davide, Jr., C.J. (Chairman), Panganiban, Ynares-Santiago,
previous marriage without first securing a judicial falling under Articles 35 and 36 of the Family Code, are void
Carpio, and Azcuna, JJ.
annulment of the previous marriage. If even without a judicial declaration of nullity. As the Court
subsequently the previous marriage were judicially held in Cariño v. Cariño:5
declared void, the subsequent marriage would not
be deemed bigamous. The nullity of the previous Under Article 40 of the Family Code, the absolute nullity of a
Concurring Opinion marriage could even be judicially declared in the previous marriage may be invoked for purposes of
criminal case for bigamy,2 although the person remarriage on the basis solely of a final judgment declaring
CARPIO, J.: remarrying "assume(d) the risk of being such previous marriage void. Meaning, where the absolute
prosecuted for bigamy"3 should the court uphold nullity of a previous marriage is sought to be invoked for
I concur in the result of the ponencia of Justice Consuelo the validity of the first marriage. Article 40 of the purposes of contracting a second marriage, the sole basis
Ynares-Santiago finding appellant Salvador S. Abunado Family Code has changed this. acceptable in law, for said projected marriage to be free
guilty of bigamy. from legal infirmity, is a final judgment declaring the
Now, one must first secure a final judicial previous marriage void. However, for purposes other than
declaration of nullity of the previous marriage remarriage, no judicial action is necessary to declare a
The material facts are not in dispute. On 18 September
before he is freed from the marital bond or marriage an absolute nullity. x x x . (Emphasis supplied)
1967, Abunado married Narcisa Arceno. While his marriage
with Arceno remained unannulled, Abunado married vinculum of the previous marriage. If he fails to
Zenaida Biñas on 10 January 1989. Subsequently, on 29 secure a judicial declaration of nullity and contracts Cariño, penned by Justice Consuelo Ynares-Santiago
October 1999, Abunado obtained from the Regional Trial a second marriage, then the second marriage herself, contradicts the statement in her present ponencia
Court of Makati City a judicial declaration of nullity of his becomes bigamous. As the Court stated in that "under the law, a marriage, even one which is void or
marriage with Arceno. On 18 May 2001, the Regional Trial Domingo v. Court of Appeals4 in explaining Article voidable, shall be deemed valid until declared otherwise in a
Court of San Mateo, Rizal rendered a decision convicting 40 of the Family Code: judicial proceeding." I believe the ruling in Cariño is correct
Abunado of bigamy. and should not be disturbed. As Justice Jose C. Vitug
In fact, the requirement for a declaration of explained in his recent textbook on Civil Law (Volume I):
The sole issue is whether the second marriage of Abunado absolute nullity of a marriage is also for the
to Biñas on 10 January 1989 constitutes the crime of protection of the spouse who, believing that his or The phrase "for purposes of remarriage" is not at all
bigamy under Article 3491 of the Revised Penal Code. More her marriage is illegal and void, marries again. insignificant. Void marriages, like void contracts, are
precisely, the issue turns on whether Abunado’s first With the judicial declaration of the nullity of his or inexistent from the very beginning. It is only by way
marriage to Arceno was still subsisting at the time Abunado her first marriage, the person who marries again of exception that the Family Code requires a judicial
married Biñas. cannot be charged with bigamy. declaration of nullity of the previous marriage before a
subsequent marriage is contracted; x x x.6 (Emphasis residence of the parties to the subsequent During trial, respondent Nolasco testified that he was a
supplied) marriage at the instance of any interested person, seaman and that he had first met Janet Monica Parker, a
with due notice to the spouses of the subsequent British subject, in a bar in England during one of his ship's
Thus, the general rule is if the marriage is void ab initio, it is marriage and without prejudice to the fact of port calls. From that chance meeting onwards, Janet
ipso facto void without need of any judicial declaration of reappearance being judicially determined in case Monica Parker lived with respondent Nolasco on his ship for
nullity. The only recognized exception7 under existing law is such fact is disputed. (n) six (6) months until they returned to respondent's hometown
Article 40 of the Family Code where a marriage void ab of San Jose, Antique on 19 November 1980 after his
initio is deemed valid for purposes of remarriage, hence seaman's contract expired. On 15 January 1982,
necessitating a judicial declaration of nullity before one can respondent married Janet Monica Parker in San Jose,
contract a subsequent marriage. G.R. No. 94053 March 17, 1993 Antique, in Catholic rites officiated by Fr. Henry van Tilborg
in the Cathedral of San Jose.
Article 40 of the Family Code applies only to a situation REPUBLIC OF THE PHILIPPINES, petitioner,
where the previous marriage suffers from nullity while the vs. Respondent Nolasco further testified that after the marriage
second marriage does not. Under Article 40, what requires GREGORIO NOLASCO, respondent. celebration, he obtained another employment contract as a
a judicial declaration of nullity is the previous marriage, not seaman and left his wife with his parents in San Jose,
the subsequent marriage. Article 40 does not apply to a The Solicitor General for plaintiff-appellee. Antique. Sometime in January 1983, while working
situation where the first marriage does not suffer from any overseas, respondent received a letter from his mother
defect while the second is void. informing him that Janet Monica had given birth to his son.
Warloo G. Cardenal for respondent.
The same letter informed him that Janet Monica had left
Antique. Respondent claimed he then immediately asked
Accordingly, I vote to deny the petition and affirm the RESOLUTION permission to leave his ship to return home. He arrived in
decision of the Court of Appeals finding appellant Salvador
Antique in November 1983.
S. Abunado guilty of the crime of bigamy.

Respondent further testified that his efforts to look for her

Art. 41. A marriage contracted by any person during
FELICIANO, J.: himself whenever his ship docked in England proved
subsistence of a previous marriage shall be null and void,
fruitless. He also stated that all the letters he had sent to his
unless before the celebration of the subsequent marriage,
On 5 August 1988, respondent Gregorio Nolasco missing spouse at No. 38 Ravena Road, Allerton, Liverpool,
the prior spouse had been absent for four consecutive years
filed before the Regional Trial Court of Antique, England, the address of the bar where he and Janet Monica
and the spouse present has a well-founded belief that the
Branch 10, a petition for the declaration of first met, were all returned to him. He also claimed that he
absent spouse was already dead. In case of disappearance
presumptive death of his wife Janet Monica Parker, inquired from among friends but they too had no news of
where there is danger of death under the circumstances set
invoking Article 41 of the Family Code. The petition Janet Monica.
forth in the provisions of Article 391 of the Civil Code, an
absence of only two years shall be sufficient. prayed that respondent's wife be declared
presumptively dead or, in the alternative, that the On cross-examination, respondent stated that he had lived
For the purpose of contracting the subsequent marriage marriage be declared null and void.1 with and later married Janet Monica Parker despite his lack
under the preceding paragraph the spouse present must of knowledge as to her family background. He insisted that
institute a summary proceeding as provided in this Code for The Republic of the Philippines opposed the his wife continued to refuse to give him such information
the declaration of presumptive death of the absentee, petition through the Provincial Prosecutor of even after they were married. He also testified that he did
without prejudice to the effect of reappearance of the absent Antique who had been deputized to assist the not report the matter of Janet Monica's disappearance to
spouse. (83a) Solicitor-General in the instant case. The Republic the Philippine government authorities.
argued, first, that Nolasco did not possess a
Art. 42. The subsequent marriage referred to in the
"well-founded belief that the absent spouse was Respondent Nolasco presented his mother, Alicia Nolasco,
preceding Article shall be automatically terminated by the
already dead,"2 and second, Nolasco's attempt to as his witness. She testified that her daughter-in-law Janet
recording of the affidavit of reappearance of the absent
have his marriage annulled in the same Monica had expressed a desire to return to England even
spouse, unless there is a judgment annulling the previous
proceeding was a "cunning attempt" to circumvent before she had given birth to Gerry Nolasco on 7 December
marriage or declaring it void ab initio.
the law on marriage.3 1982. When asked why her daughter-in-law might have
A sworn statement of the fact and circumstances of wished to leave Antique, respondent's mother replied that
reappearance shall be recorded in the civil registry of the Janet Monica never got used to the rural way of life in San
Jose, Antique. Alicia Nolasco also said that she had tried to The present case was filed before the trial court 1. That the absent spouse has been missing for four
dissuade Janet Monica from leaving as she had given birth pursuant to Article 41 of the Family Code which consecutive years, or two consecutive years if the
to her son just fifteen days before, but when she (Alicia) provides that: disappearance occurred where there is danger of death
failed to do so, she gave Janet Monica P22,000.00 for her under the circumstances laid down in Article 391, Civil
expenses before she left on 22 December 1982 for England. Art. 41. A marriage contracted by any person Code;
She further claimed that she had no information as to the during the subsistence of a previous marriage shall
missing person's present whereabouts. be null and void, unless before the celebration of 2. That the present spouse wishes to remarry;
the subsequent marriage, the prior spouse had
The trial court granted Nolasco's petition in a Judgment been absent for four consecutive years and 3. That the present spouse has a well-founded belief that
dated 12 October 1988 the dispositive portion of which the spouse present had a well-founded belief that the absentee is dead; and
reads: the absent spouse was already dead. In case of
disappearance where there is danger of death
4. That the present spouse files a summary proceeding for
Wherefore, under Article 41, paragraph 2 of the Family under the circumstances set forth in the provision
the declaration of presumptive death of the absentee. 10
Code of the Philippines (Executive Order No. 209, July 6, of Article 391 of the Civil Code, an absence of only
1987, as amended by Executive Order No. 227, July 17, two years shall be sufficient.
Respondent naturally asserts that he had complied with all
1987) this Court hereby declares as presumptively dead
these requirements.11
Janet Monica Parker Nolasco, without prejudice to her For the purpose of contracting the subsequent
reappearance.4 marriage under the preceding paragraph, the
spouse present must institute a summary Petitioner's argument, upon the other hand, boils down to
proceeding as provided in this Code for the this: that respondent failed to prove that he had complied
The Republic appealed to the Court of Appeals contending
declaration of presumptive death of the absentee, with the third requirement, i.e., the existence of a
that the trial court erred in declaring Janet Monica Parker
without prejudice to the effect of reappearance of "well-founded belief" that the absent spouse is already
presumptively dead because respondent Nolasco had failed
the absent spouse. (Emphasis supplied). dead.
to show that there existed a well founded belief for such
declaration.
When Article 41 is compared with the old provision The Court believes that respondent Nolasco failed to
of the Civil Code, which it superseded,7 the conduct a search for his missing wife with such diligence as
The Court of Appeals affirmed the trial court's decision,
following crucial differences emerge. Under Article to give rise to a "well-founded belief" that she is dead.
holding that respondent had sufficiently established a basis
to form a belief that his absent spouse had already died. 41, the time required for the presumption to arise
has been shortened to four (4) years; however, United States v. Biasbas, 12 is instructive as to degree of
there is need for a judicial declaration of diligence required in searching for a missing spouse. In that
The Republic, through the Solicitor-General, is now before
presumptive death to enable the spouse present to case, defendant Macario Biasbas was charged with the
this Court on a Petition for Review where the following
remarry.8 Also, Article 41 of the Family Code crime of bigamy. He set-up the defense of a good faith
allegations are made:
imposes a stricter standard than the Civil Code: belief that his first wife had already died. The Court held that
Article 83 of the Civil Code merely requires either defendant had not exercised due diligence to ascertain the
1. The Court of Appeals erred in affirming the trial court's that there be no news that such absentee is still whereabouts of his first wife, noting that:
finding that there existed a well-founded belief on the part of alive; or the absentee is generally considered to be
Nolasco that Janet Monica Parker was already dead; and dead and believed to be so by the spouse present, While the defendant testified that he had made inquiries
or is presumed dead under Article 390 and 391 of concerning the whereabouts of his wife, he fails to state of
2. The Court of Appeals erred in affirming the trial Court's the Civil Code.9 The Family Code, upon the other whom he made such inquiries. He did not even write to the
declaration that the petition was a proper case of the hand, prescribes as "well founded belief" that the parents of his first wife, who lived in the Province of
declaration of presumptive death under Article 41, Family absentee is already dead before a petition for Pampanga, for the purpose of securing information
Code.5 declaration of presumptive death can be granted. concerning her whereabouts. He admits that he had a
suspicion only that his first wife was dead. He admits that
The issue before this Court, as formulated by petitioner is As pointed out by the Solicitor-General, there are the only basis of his suspicion was the fact that she had
"[w]hether or not Nolasco has a well-founded belief that his four (4) requisites for the declaration of been absent. . . . 13
wife is already dead."6 presumptive death under Article 41 of the Family
Code:
In the case at bar, the Court considers that the investigation which is in effect what Nolasco says he did — can belief that Janet Monica was dead a well-founded one.
allegedly conducted by respondent in his attempt to be regarded as a reasonably diligent search.
ascertain Janet Monica Parker's whereabouts is too sketchy In Goitia v. Campos-Rueda, 20 the Court stressed that:
to form the basis of a reasonable or well-founded belief that The Court also views respondent's claim that
she was already dead. When he arrived in San Jose, Janet Monica declined to give any information as . . . Marriage is an institution, the maintenance of which in
Antique after learning of Janet Monica's departure, instead to her personal background even after she had its purity the public is deeply interested. It is a relationship
of seeking the help of local authorities or of the British married respondent 17 too convenient an excuse for life and the parties cannot terminate it at any shorter
Embassy, 14 he secured another seaman's contract and to justify his failure to locate her. The same can be period by virtue of any contract they
went to London, a vast city of many millions of inhabitants, said of the loss of the alleged letters respondent make. . . . . 21 (Emphasis supplied)
to look for her there. had sent to his wife which respondent claims were
all returned to him. Respondent said he had lost
By the same token, the spouses should not be allowed, by
Q After arriving here in San Jose, Antique, did you exert these returned letters, under unspecified
the simple expedient of agreeing that one of them leave the
efforts to inquire the whereabouts of your wife? circumstances.
conjugal abode and never to return again, to circumvent the
policy of the laws on marriage. The Court notes that
A Yes, Sir. Neither can this Court give much credence to respondent even tried to have his marriage annulled before
respondent's bare assertion that he had inquired the trial court in the same proceeding.
Court: from their friends of her whereabouts, considering
that respondent did not identify those friends in his
In In Re Szatraw, 22 the Court warned against such
testimony. The Court of Appeals ruled that since
How did you do that? collusion between the parties when they find it impossible to
the prosecutor failed to rebut this evidence during
dissolve the marital bonds through existing legal means.
trial, it is good evidence. But this kind of evidence
A I secured another contract with the ship and we had a trip cannot, by its nature, be rebutted. In any case,
to London and I went to London to look for her I could not admissibility is not synonymous with While the Court understands the need of respondent's
find her (sic). 15 (Emphasis supplied) credibility. 18 As noted before, there are serious young son, Gerry Nolasco, for maternal care, still the
doubts to respondent's credibility. Moreover, even requirements of the law must prevail. Since respondent
Respondent's testimony, however, showed that he if admitted as evidence, said testimony merely failed to satisfy the clear requirements of the law, his
confused London for Liverpool and this casts doubt on his tended to show that the missing spouse had petition for a judicial declaration of presumptive death must
supposed efforts to locate his wife in England. The Court of chosen not to communicate with their common be denied. The law does not view marriage like an ordinary
Appeal's justification of the mistake, to wit: acquaintances, and not that she was dead. contract. Article 1 of the Family Code emphasizes that.

. . . Well, while the cognoscente (sic) would readily know the Respondent testified that immediately after . . . Marriage is a special contract of permanent
geographical difference between London and Liverpool, for receiving his mother's letter sometime in January union between a man and a woman entered into in
a humble seaman like Gregorio the two places could mean 1983, he cut short his employment contract to accordance with law for the establishment of conjugal and
one — place in England, the port where his ship docked and return to San Jose, Antique. However, he did not family life. It is the foundation of the family and an inviolable
where he found Janet. Our own provincial folks, every time explain the delay of nine (9) months from January social institution whose nature, consequences,
they leave home to visit relatives in Pasay City, Kalookan 1983, when he allegedly asked leave from his and incidents are governed by law and not subject to
City, or Parañaque, would announce to friends and relatives, captain, to November 1983 when be finally stipulation, except that marriage settlements may fix the
"We're going to Manila." This apparent error in naming of reached San Jose. Respondent, moreover, property relations during the marriage within the limits
places of destination does not appear to be fatal. 16 claimed he married Janet Monica Parker without provided by this Code. (Emphasis supplied)
inquiring about her parents and their place of
is not well taken. There is no analogy between Manila and residence. 19 Also, respondent failed to explain In Arroyo, Jr. v. Court of Appeals, 23 the Court stressed
its neighboring cities, on one hand, and London and why he did not even try to get the help of the police strongly the need to protect.
Liverpool, on the other, which, as pointed out by the or other authorities in London and Liverpool in his
Solicitor-General, are around three hundred fifty (350) effort to find his wife. The circumstances of Janet . . . the basic social institutions of marriage and the family in
kilometers apart. We do not consider that walking into a Monica's departure and respondent's subsequent the preservation of which the State bas the strongest
major city like Liverpool or London with a simple hope of behavior make it very difficult to regard the claimed interest; the public policy here involved is of the most
somehow bumping into one particular person there —
fundamental kind. In Article II, Section 12 of the Constitution (4) That the consent of either party was obtained article 88 of the Civil Code, the Court directed the city
there is set forth the following basic state policy: by force, intimidation or undue influence, unless attorney of Zamboanga to inquire whether there was a
the same having disappeared or ceased, such collusion, to intervene for the State to see that the evidence
The State recognizes the sanctity of family life and shall party thereafter freely cohabited with the other as for the plaintiff is not a frame-up, concocted or fabricated.
protect and strengthen the family as a basic autonomous husband and wife; On 17 December 1956 the Court entered an order requiring
social institution. . . . the defendant to submit to a physical examination by a
(5) That either party was physically incapable of competent lady physician to determine her physical
consummating the marriage with the other, and capacity for copulation and to submit, within ten days from
The same sentiment bas been expressed in the Family such incapacity continues and appears to be receipt of the order, a medical certificate on the result
Code of the Philippines in Article 149: incurable; or thereof. On 14 March 1957 the defendant was granted
additional five days from notice to comply with the order of
The family, being the foundation of the nation, is a basic (6) That either party was afflicted with a
17 December 1956 with warning that her failure to undergo
social institution which public policy cherishes and protects. sexually-transmissible disease found to be serious
medical examination and submit the required doctor's
Consequently, family relations are governed by law and no and appears to be incurable.
certificate would be deemed lack of interest on her part in
custom, practice or agreement destructive of the family the case and that judgment upon the evidence presented by
shall be recognized or given effect. 24 her husband would be rendered.
G.R. No. L-12790 August 31, 1960
In fine, respondent failed to establish that he had the After hearing, at which the defendant was not present, on
well-founded belief required by law that his absent wife was 11 April 1957 the Court entered a decree annulling the
already dead that would sustain the issuance of a court JOEL JIMENEZ, plaintiff-appellee,
vs. marriage between the plaintiff and the defendant. On 26
order declaring Janet Monica Parker presumptively dead. April 1957 the city attorney filed a motion for reconsideration
REMEDIOS CAÑIZARES, defendant.
Republic of the of the decree thus entered, upon the ground, among others,
WHEREFORE, the Decision of the Court of Appeals dated Philippines, intervenor-appellant. that the defendant's impotency has not been satisfactorily
23 February 1990, affirming the trial court's decision established as required by law; that she had not been
declaring Janet Monica Parker presumptively dead is physically examined because she had refused to be
hereby REVERSED and both Decisions are hereby Acting Solicitor General Guillermo E. Torres and examined; that instead of annulling the marriage the Court
NULLIFIED and SET ASIDE. Costs against respondent. Solicitor Pacifico P. de Castro for appellant. should have punished her for contempt of court and
Climaco, Ascarraga and Silang for appellee. compelled her to undergo a physical examination and
Art. 45. A marriage may be annulled for any of the following submit a medical certificate; and that the decree sought to
causes, existing at the time of the marriage: PADILLA, J.: be reconsidered would open the door to married couples,
who want to end their marriage to collude or connive with
(1) That the party in whose behalf it is sought to have the In a complaint filed on 7 June 1955 in the Court of each other by just alleging impotency of one of them. He
marriage annulled was eighteen years of age or over but First Instance of Zamboanga the plaintiff Joel prayed that the complaint be dismissed or that the wife be
below twenty-one, and the marriage was solemnized Jimenez prays for a decree annulling his marriage subjected to a physical examination. Pending resolution of
without the consent of the parents, guardian or person to the defendant Remedios Cañizares contracted his motion, the city attorney timely appealed from the
having substitute parental authority over the party, in that on 3 August 1950 before a judge of the municipal decree. On 13 May 1957 the motion for reconsideration was
order, unless after attaining the age of twenty-one, such court of Zamboanga City, upon the ground that the denied.
party freely cohabited with the other and both lived together office of her genitals or vagina was to small to
as husband and wife; allow the penetration of a male organ or penis for The question to determine is whether the marriage in
copulation; that the condition of her genitals as question may be annulled on the strength only of the lone
(2) That either party was of unsound mind, unless such
described above existed at the time of marriage testimony of the husband who claimed and testified that his
party after coming to reason, freely cohabited with the other
and continues to exist; and that for that reason he wife was and is impotent. The latter did not answer the
as husband and wife;
left the conjugal home two nights and one day after complaint, was absent during the hearing, and refused to
(3) That the consent of either party was obtained by fraud, they had been married. On 14 June 1955 the wife submit to a medical examination.
unless such party afterwards, with full knowledge of the was summoned and served a copy of the
facts constituting the fraud, freely cohabited with the other complaint. She did not file an answer. On 29 Marriage in this country is an institution in which the
as husband and wife; September 1956, pursuant to the provisions of community is deeply interested. The state has surrounded it
with safeguards to maintain its purity, continuity and In the cases referred to in the preceding paragraph, A declaration of nullity of marriage under Article 36 of the
permanence. The security and stability of the state are no judgment shall be based upon a stipulation of Family Code requires the application of procedural and
largely dependent upon it. It is the interest of each and facts or confession of judgment. (88a) substantive guidelines. While compliance with these
every member of the community to prevent the bringing requirements mostly devolves upon petitioner, the State is
about of a condition that would shake its foundation and Art. 49. During the pendency of the action and in likewise mandated to actively intervene in the procedure.
ultimately lead to its destruction. The incidents of the status the absence of adequate provisions in a written Should there be non-compliance by the State with its
are governed by law, not by will of the parties. The law agreement between the spouses, the Court shall statutory duty, there is a need to remand the case to the
specifically enumerates the legal grounds, that must be provide for the support of the spouses and the lower court for proper trial.
proved to exist by indubitable evidence, to annul a marriage. custody and support of their common children. The
In the case at bar, the annulment of the marriage in Court shall give paramount consideration to the
The Case
question was decreed upon the sole testimony of the moral and material welfare of said children and
husband who was expected to give testimony tending or their choice of the parent with whom they wish to
remain as provided to in Title IX. It shall also What is before the Court4 is an appeal from a decision of
aiming at securing the annulment of his marriage he sought
provide for appropriate visitation rights of the other the Court of Appeals5 which affirmed the decision of the
and seeks. Whether the wife is really impotent cannot be
parent. Regional Trial Court, Branch 158, Pasig City6 dismissing
deemed to have been satisfactorily established, becase
petitioner Florence Malcampo-Sin's (hereafter "Florence")
from the commencement of the proceedings until the entry
petition for declaration of nullity of marriage due to
of the decree she had abstained from taking part therein.
psychological incapacity for insufficiency of evidence.
Although her refusal to be examined or failure to appear in
court show indifference on her part, yet from such attitude G.R. No. 137590 March 26, 2001
the presumption arising out of the suppression of evidence The Facts
could not arise or be inferred because women of this FLORENCE MALCAMPO-SIN, petitioner,
country are by nature coy, bashful and shy and would not vs. On January 4, 1987, after a two-year courtship and
submit to a physical examination unless compelled to by PHILIPP T. SIN, respondent. engagement, Florence and respondent Philipp T. Sin
competent authority. This the Court may do without doing (hereafter "Philipp"), a Portugese citizen, were married at St.
violence to and infringing in this case is not PARDO, J.: Jude Catholic Parish in San Miguel, Manila.7
self-incrimination. She is not charged with any offense. She
is not being compelled to be a witness against On September 20, 1994, Florence filed with the Regional
The Family Code emphasizes the permanent
herself.1 "Impotency being an abnormal condition should Trial Court, Branch 158, Pasig City, a complaint for
nature of marriage, hailing it as the foundation of
not be presumed. The presumption is in favor of "declaration of nullity of marriage" against Philipp. 8 Trial
the family.1 It is this inviolability which is central to
potency."2 The lone testimony of the husband that his wife ensued and the parties presented their respective
our traditional and religious concepts of morality
is physically incapable of sexual intercourse is insufficient to documentary and testimonial evidence.
and provides the very bedrock on which our
tear asunder the ties that have bound them together as
society finds stability.2 Marriage is immutable and
husband and wife.
when both spouses give their consent to enter it, On June 16, 1995, the trial court dismissed Florence's
their consent becomes irrevocable, unchanged petition.9
The decree appealed from is set aside and the case even by their independent wills.
remanded to the lower court for further proceedings in
On December 19, 1995, Florence filed with the trial court a
accordance with this decision, without pronouncement as to
However, this inviolability depends on whether the notice of appeal to the Court of Appeals.10
costs.
marriage exists and is valid. If it is void ab initio,
the "permanence" of the union becomes irrelevant, After due proceedings, on April 30, 1998, the Court of
Art. 48. In all cases of annulment or declaration of absolute and the Court can step in to declare it so. Article 36 Appeals promulgated its decision, the dispositive portion of
nullity of marriage, the Court shall order the prosecuting of the Family Code is the justification.3 Where it which reads:
attorney or fiscal assigned to it to appear on behalf of the applies and is duly proven, a judicial declaration
State to take steps to prevent collusion between the parties can free the parties from the rights, obligations,
and to take care that evidence is not fabricated or "IN THE LIGHT OF ALL THE FOREGOING, the Appeal is
burdens and consequences stemming from their
suppressed. DISMISSED. The Decision appealed from is AFFIRMED.
marriage.
Cost against the Appellant."11
On June 23, 1998, petitioner filed with the Court of Appeals "(8) The trial court must order the prosecuting be resolved in favor of the existence and continuation of the
a motion for reconsideration of the aforequoted decision. 12 attorney or fiscal and the Solicitor General to marriage and against its dissolution and nullity. This is
appear as counsel for the state. No decision shall rooted in the fact that both our Constitution and our laws
On January 19, 1999, the Court of Appeals denied be handed down unless the Solicitor General cherish the validity of marriage and unity of the family. Thus,
petitioner's motion for reconsideration.13 issues a certification, which will be quoted in the our Constitution devotes an entire Article on the Family,
decision,17 briefly stating therein his reasons for recognizing it "as the foundation of the nation." It decrees
his agreement or opposition as the case may be, marriage as legally "inviolable," thereby protecting it from
Hence, this appeal.14
to the petition. The Solicitor-General shall dissolution at the whim of the parties. Both the family and
discharge the equivalent function of the defensor marriage are to be "protected" by the state. The Family
The Court's Ruling vinculi contemplated under Canon 1095 (italics Code echoes this constitutional edict on marriage and the
ours)."18 family and emphasizes their permanence, inviolability and
We note that throughout the trial in the lower court, the solidarity.
State did not participate in the proceedings. While Fiscal The records are bereft of any evidence that the
Jose Danilo C. Jabson15 filed with the trial court a State participated in the prosecution of the case "(2) The root cause of the psychological incapacity must be:
manifestation dated November 16, 1994, stating that he not just at the trial level but on appeal with the a) medically or clinically identified, b) alleged in the
found no collusion between the parties,16 he did not actively Court of Appeals as well. Other than the complaint, c) sufficiently proven by experts and d) clearly
participate therein. Other than entering his appearance at "manifestation" filed with the trial court on explained in the decision. Article 36 of the Family Code
certain hearings of the case, nothing more was heard from November 16, 1994, the State did not file any requires that the incapacity must be psychological — not
him. Neither did the presiding Judge take any step to pleading, motion or position paper, at any stage of physical, although its manifestations and/or symptoms may
encourage the fiscal to contribute to the proceedings. the proceedings. be physical. The evidence must convince the court that the
parties, or one of them, was mentally or psychically (sic) ill
The Family Code mandates: In Republic of the Philippines v. Erlinda Matias to such an extent that the person could not have known the
Dagdag,19 while we upheld the validity of the obligations he was assuming, or knowing them, could not
"ARTICLE 48. In all cases of annulment or declaration of marriage, we nevertheless characterized the have given valid assumption thereof. Although no example
absolute nullity of marriage, the Court shall order the decision of the trial court as "prematurely of such incapacity need be given here so as not to limit the
prosecuting attorney or fiscal assigned to it to appear on rendered" since the investigating prosecutor was application of the provision under the principle of ejusdem
behalf of the State to take steps to prevent collusion not given an opportunity to present controverting generis, nevertheless such root cause must be identified as
between the parties and to take care that evidence is not evidence before the judgment was rendered. This a psychological illness and its incapacitating nature fully
fabricated or suppressed (italics ours). stresses the importance of the participation of the explained. Expert evidence may be given by qualified
State. psychiatrists and clinical psychologists.
"In the cases referred to in the preceding paragraph, no
judgment shall be based upon a stipulation of facts or Having so ruled, we decline to rule on the factual "(3) The incapacity must be proven to be existing at "the
confession of judgment." disputes of the case, this being within the province time of the celebration" of the marriage. The evidence must
of the trial court upon proper re-trial. show that the illness was existing when the parties
exchanged their "I do's." The manifestation of the illness
It can be argued that since the lower court dismissed the
need not be perceivable at such time, but the illness itself
petition, the evil sought to be prevented (i.e., dissolution of Obiter Dictum
must have attached at such moment, or prior thereto.
the marriage) did not come about, hence, the lack of
participation of the State was cured. Not so. The task of For purposes of re-trial, we guide the parties thus:
protecting marriage as an inviolable social institution "(4) Such incapacity must also be shown to be medically or
In Republic vs. Court of Appeals,20 the guidelines
requires vigilant and zealous participation and not clinically permanent or incurable. Such incurability may be
in the interpretation and application of Article 36 of
mere pro-forma compliance. The protection of marriage as absolute or even relative only in regard to the other spouse,
the Family Code are as follows (omitting guideline
a sacred institution requires not just the defense of a true not necessarily absolutely against everyone of the same
[8] in the enumeration as it was already earlier
and genuine union but the exposure of an invalid one as sex. Furthermore, such incapacity must be relevant to the
quoted):
well. This is made clear by the following pronouncement: assumption of marriage obligations, not necessarily to those
not related to marriage, like the exercise of a profession or
"(1) The burden of proof to show the nullity of the employment in a job. Hence, a pediatrician may be effective
marriage belongs to the plaintiff. Any doubt should in diagnosing illnesses of children and prescribing medicine
to cure them but may not be psychologically capacitated to EMILIO R. TUASON, petitioner, administration of the conjugal partnership by alienating
procreate, bear and raise his/her own children as an vs. some of their assets and incurring large obligations with
essential obligation of marriage. COURT OF APPEALS and MARIA VICTORIA L. banks, credit card companies and other financial institutions,
TUASON, respondents. without private respondent's consent; that attempts at
"(5) Such illness must be grave enough to bring about the reconciliation were made but they all failed because of
disability of the party to assume the essential obligations of petitioner's refusal to reform. In addition to her prayer for
marriage. Thus, "mild characteriological peculiarities, mood annulment of marriage, private respondent prayed for
changes, occasional emotional outbursts" cannot be powers of administration to save the conjugal properties
PUNO, J.:p
accepted as root causes. The illness must be shown as from further dissipation.1
downright incapacity or inability, not refusal, neglect or
This petition for review on certiorari seeks to annul
difficulty, much less ill will. In other words, there is a natal or Petitioner answered denying the imputations against him.
and set aside the decision dated July 29, 1994 of
supervening disabling factor in the person, an adverse As affirmative defense, he claimed that he and private
the Court of Appeals in CA-G.R. CV No. 37925
integral element in the personality structure that effectively respondent were a normal married couple during the first
denying petitioner's appeal from an order of the
incapacitates the person from really accepting and thereby ten years of their marriage and actually begot two children
Regional Trial Court, Branch 149, Makati in Civil
complying with the obligations essential to marriage. during this period; that it was only in 1982 that they began to
Case No. 3769.
have serious personal differences when his wife did not
"(6) The essential marital obligations must be those accord the respect and dignity due him as a husband but
This case arose from the following facts: treated him like a persona non grata; that due to the
embraced by Articles 68 up to 71 of the Family Code as
regards the husband and wife as well as Articles 220, 221 "extreme animosities " between them, he temporarily left
and 225 of the same Code in regard to parents and their In 1989, private respondent Maria Victoria Lopez the conjugal home for a "cooling-off period" in 1984; that it is
children. Such non-complied marital obligation(s) must also Tuason filed with the Regional Trial Court, Branch private respondent who had been taking prohibited drugs
be stated in the petition, proven by evidence and included in 149, Makati a petition for annulment or declaration and had a serious affair with another man; that petitioner's
the text of the decision. of nullity of her marriage to petitioner Emilio R. work as owner and operator of a radio and television station
Tuason. In her complaint, private respondent exposed him to malicious gossip linking him to various
alleged that she and petitioner were married on women in media and the entertainment world; and that
"(7) Interpretations given by the National Appellate
June 3, 1972 and from this union, begot two since 1984, he experienced financial reverses in his
Matrimonial Tribunal of the Catholic Church in the
children; that at the time of the marriage, petitioner business and was compelled, with the knowledge of his wife,
Philippines, while not controlling or decisive, should be
was already psychologically incapacitated to to dispose of some of the conjugal shares in exclusive golf
given great respect by our courts."
comply with his essential marital obligations which and country clubs. Petitioner petitioned the court to allow
became manifest afterward and resulted in violent him to return to the conjugal home and continue his
The Fallo fights between husband and wife; that in one of administration of the conjugal partnership.
their fights, petitioner inflicted physical injuries on
WHEREFORE, the Court REVERSES and SETS ASIDE private respondent which impelled her to file a After the issues were joined, trial commenced on March 30,
the appealed decision of the Court of Appeals in CA-G.R. criminal case for physical injuries against him; that 1990. Private respondent presented four witnesses, namely,
CV No. 51304, promulgated on April 30, 1998 and the petitioner used prohibited drugs, was apprehended herself; Dr. Samuel Wiley, a Canon Law expert and
decision of the Regional Trial Court, Branch 158, Pasig City by the authorities and sentenced to a one-year marriage counselor of both private respondent and
in Civil Case No. 3190, dated June 16, 1995. suspended penalty and has not been rehabilitated; petitioner; Ms. Adelita Prieto, a close friend of the spouses,
that petitioner was a womanizer, and in 1984, he and Atty. Jose F. Racela IV, private respondent's counsel.
Let the case be REMANDED to the trial court for proper left the conjugal home and cohabited with three Private respondent likewise submitted documentary
trial. women in succession, one of whom he presented evidence consisting of newspaper articles of her husband's
to the public as his wife; that after he left the relationship with other women, his apprehension by the
conjugal dwelling, petitioner gave minimal support authorities for illegal possession of drugs; and copies of a
No costs.
to the family and even refused to pay for the tuition prior a church annulment decree.2 The parties' marriage
fees of their children compelling private was clerically annulled by the Tribunal Metropolitanum
SO ORDERED. respondent to accept donations and dole-outs Matrimonial which was affirmed by the National Appellate
from her family and friends; that petitioner likewise Matrimonial Tribunal in 1986.3
G.R. No. 116607 April 10, 1996 became a spendthrift and abused his
During presentation of private respondent's evidence, On September 24, 1990, private respondent filed a must assert facts showing that he has a good, substantial
petitioner, on April 18, 1990, filed his Opposition to private "Motion for Dissolution of Conjugal Partnership of and meritorious defense or cause of action. 11 If the petition
respondent's petition for appointment as administratrix of Gains and Adjudication to Plaintiff of the Conjugal is granted, the court shall proceed to hear and determine
the conjugal partnership of gains. Properties."7 Petitioner opposed the motion on the case as if a timely motion for new trial had been granted
October 17, 1990.8 therein. 12
After private respondent rested her case, the trial court
scheduled the reception of petitioner's evidence on May 11, Also on the same day, October 17, 1990, petitioner, In the case at bar, the decision annulling petitioner's
1990. through new counsel, filed with the trial court a marriage to private respondent had already become final
petition for relief from judgment of the June 29, and executory when petitioner failed to appeal during the
On May 8, 1990, two days before the scheduled hearing , a 1990 decision. reglementary period. Petitioner however claims that the
counsel for petitioner moved for a postponement on the decision of the trial court was null and void for violation of
ground that the principal counsel was out of the country and The trial court denied the petition on August 8, his right to due process. He contends he was denied due
due to return on the first week of June.4 The court granted 1991.9 process when, after failing to appear on two scheduled
the motion and reset the hearing to June 8, 1990.5 hearings, the trial court deemed him to have waived his
right to present evidence and rendered judgment on the
Petitioner appealed before the Court of Appeals
basis of the evidence for private respondent. Petitioner
On June 8, 1990, petitioner failed to appear. On oral motion the order of the trial court denying his petition for
justifies his absence at the hearings on the ground that he
of private respondent, the court declared petitioner to have relief from judgment. On July 29, 1994, the Court
was then "confined for medical and/or rehabilitation
waived his right to present evidence and deemed the case of Appeals dismissed the appeal and affirmed the
reason." 13 In his affidavit of merit before the trial court, he
submitted for decision on the basis of the evidence order of the trial court. 10
attached a certification by Lt. Col. Plaridel F. Vidal, Director
presented.
of the Narcotics Command, Drug Rehabilitation Center
Hence this petition. which states that on March 27, 1990 petitioner was admitted
On June 29, 1990, the trial court rendered judgment for treatment of drug dependency at the Drug Rehabilitation
declaring the nullity of private respondent's marriage to The threshold issue is whether a petition for relief Center at Camp Bagong Diwa, Bicutan, Taguig, Metro
petitioner and awarding custody of the children to private from judgment is warranted under the Manila of the Philippine Constabulary-Integrated National
respondent. The court ruled: circumstances of the case. Police. 14 The records, however, show that the former
counsel of petitioner did not inform the trial court of this
WHEREFORE, in view of the foregoing, the marriage We rule in the negative. confinement. And when the court rendered its decision, the
contracted by Ma. Victoria L. Tuason and Emilio R. Tuason same counsel was out of the country for which reason the
on June 3, 1972 is declared null and void ab initio on the decision became final and executory as no appeal was
A petition for relief from judgment is governed by
ground of psychological incapacity on the part of the taken therefrom. 15
Rule 38, Section 2 of the Revised Rules of Court
defendant under Sec. 36 of the Family Code. Let herein
which provides:
judgment of annulment be recorded in the registry of The failure of petitioner's counsel to notify him on time of the
Mandaluyong, Metro Manila where the marriage was adverse judgment to enable him to appeal therefrom is
contracted and in the registry of Makati, Metro Manila where Sec. 2. Petition to Court of First Instance for relief
negligence which is not excusable. Notice sent to counsel of
the marriage is annulled. from judgment or other proceeding thereof. —
record is binding upon the client and the neglect or failure of
When a judgment or order is entered, or any other
counsel to inform him of an adverse judgment resulting in
proceeding is taken, against a party in a Court of
The custody of the two (2) legitimate children of the plaintiff the loss of his right to appeal is not a ground for setting
First Instance through fraud, accident, mistake, or
and the defendant is hereby awarded to the plaintiff. aside a judgment valid and regular on its face. 16
excusable negligence, he may file a petition in
such court and in the same cause praying that the
The foregoing judgment is without prejudice to the judgment, order or proceeding be set aside. Similarly inexcusable was the failure of his former counsel
application of the other effects of annulment as provided for to inform the trial court of petitioner's confinement and
under Arts . 50 and 51 of the Family Code of the medical treatment as the reason for his non-appearance at
Under the rules, a final and executory judgment or
Philippines.6 the scheduled hearings. Petitioner has not given any reason
order of the Regional Trial Court may be set aside
why his former counsel, intentionally or unintentionally, did
on the ground of fraud, accident, mistake or
Counsel for petitioner received a copy of this decision on not inform the court of this fact. This led the trial court to
excusable negligence. In addition, the petitioner
August 24, 1990. No appeal was taken from the decision. order the case deemed submitted for decision on the basis
of the evidence presented by the private respondent alone. State to take steps to prevent collusion between hence, their preservation is not the concern alone of the
To compound the negligence of petitioner's counsel, the the parties and to take care that evidence is not family members.
order of the trial court was never assailed via a motion for fabricated or suppressed.
reconsideration. The facts in the case at bar do not call for the strict
In the cases referred to in the preceding paragraph, application of Articles 48 and 60 of the Family Code. For
Clearly, petitioner cannot now claim that he was deprived of no judgment shall be based upon a stipulation of one, petitioner was not declared in default by the trial court
due process. He may have lost his right to present evidence facts or confession of judgment. for failure to answer. Petitioner filed his answer to the
but he was not denied his day in court. As the record show, complaint and contested the cause of action alleged by
petitioner, through counsel, actively participated in the xxx xxx xxx private respondent. He actively participated in the
proceedings below. He filed his answer to the petition, proceedings below by filing several pleadings and
cross-examined private respondent's witnesses and even cross-examining the witnesses of private respondent. It is
Art. 60. No decree of legal separation shall be
submitted his opposition to private respondent's motion for crystal clear that every stage of the litigation was
based upon a stipulation of facts or a confession of
dissolution of the conjugal partnership of gains. 17 characterized by a no-holds barred contest and not by
judgment.
collusion.
A petition for relief from judgment is an equitable remedy; it
In any case, the Court shall order the prosecuting
is allowed only in exception cases where there is no other The role of the prosecuting attorney or fiscal in annulment of
attorney or fiscal assigned to it to take steps to
available or adequate remedy. When a party has another marriage and legal separation proceedings is to determine
prevent collusion between the parties and to take
remedy available or adequate remedy. When a party has whether collusion exists between the parties and to take
care that the evidence is not fabricated or
another remedy available to him, which may be either a care that the evidence is not suppressed or fabricated.
suppressed. 21
motion for new trial or appeal from an adverse decision of Petitioner's vehement opposition to the annulment
the trial or appeal from an adverse decision of the trial court, proceedings negates the conclusion that collusion existed
and he was not prevented by fraud, accident, mistake or A grant of annulment of marriage or legal between the parties. There is no allegation by the petitioner
excusable negligence from filing such motion or taking such separation by default is fraught with the danger of that evidence was suppressed or fabricated by any of the
appeal, he cannot avail himself of this petition. 18 Indeed, collusion. 22 Hence, in all cases for annulment, parties. Under these circumstances, we are convinced that
relief will not be granted to a party who seeks avoidance declaration of nullity of marriage and legal the non-intervention of a prosecuting attorney to assure lack
from the effects of the judgment when the loss of the separation, the prosecuting attorney or fiscal is of collusion between the contending parties is not fatal to
remedy at law was due to his own negligence; otherwise the ordered to appear on behalf of the state for the the validity of the proceedings in the trial court.
petition for relief can be used to revive the right to appeal purpose of preventing any collusion between the
which had been lost thru inexcusable negligence. 19 parties and to take care that their evidence is not
Petitioner also refutes the testimonies of private
fabricated or suppressed. If the defendant spouse
respondent's witnesses, particularly Dr. Samuel Wiley and
fails to answer the complaint, the court cannot
Petitioner also insists that he has a valid and meritorious Ms. Adelita Prieto, as biased, incredible and hearsay.
declare him or her in default but instead, should
defense. He cites the Family Code which provides that in Petitioner alleges that if he were able to present his
order the prosecuting attorney to determine if
actions for annulment of marriage or legal separation, the evidence, he could have testified that he was not
collusion exists between the parties.23 The
prosecuting officer should intervene for the state because psychologically incapacitated at the time of the marriage as
prosecuting attorney or fiscal may oppose the
the law "looks with disfavor upon the haphazard declaration indicated by the fact that during their first ten years, he and
application for legal separation or annulment
of annulment of marriages by default." He contends that private respondent lived together with their children as one
through the presentation of his own evidence, if in
when he failed to appear at the scheduled hearings, the trial normal and happy family, that he continued supporting his
his opinion, the proof adduced is dubious and
court should have ordered the prosecuting officer to family even after he left the conjugal dwelling and that his
fabricated.24 Our Constitution is committed to the
intervene for the state and inquire as to the reason for his work as owner and operator of a radio and television
policy of strengthening the family as a basic social
non-appearance. 20 corporation places him in the public eye and makes him a
institution. 25 Our family law is based on the policy
good subject for malicious gossip linking him with various
that marriage is not a mere contract, but a social
Articles 48 and 60 of the Family Code read as follows: women. These facts, according to petitioner, should
institution in which the state is vitally interested.
disprove the ground for annulment of his marriage to
The state can find no stronger anchor than on
petitioner.
Art. 48. In all cases of annulment or declaration of absolute good, solid and happy families. The break up of
nullity of marriage, the Court shall order the prosecution families weakens our social and moral fabric and,
attorney or fiscal assigned to it to appear on behalf of the Suffice it to state that the finding of the trial court as to the
existence or non-existence of petitioner's psychological
incapacity at the time of the marriage is final and binding on contravention of a previous understanding, to have telling how this kind of set-up, no matter how temporary
us. 26 Petitioner has not sufficiently shown that the trial the children in his company on weekends. Silva and/or remote, would affect the moral and emotional
court's factual findings and evaluation of the testimonies of filed a petition for custodial rights over the children conditions of the minor children. Knowing that they are
private respondent's witnesses vis-a-vis petitioner's before the Regional Trial Court (RTC), Branch 78, illegitimate is hard enough, but having to live with it,
defenses are clearly and manifestly erroneous. 27 of Quezon City. The petition was opposed by witnessing their father living with a woman not their mother
Gonzales who averred that Silva often engaged in may have a more damaging effect upon them.
IN VIEW WHEREOF, the petition is denied and the decision "gambling and womanizing" which she feared
dated July 29, 1994 of the Court of Appeals in CA-G.R. CV could affect the moral and social values of the "Article 3 of PD 603, otherwise known as the Child and
No. 37925 is affirmed. children. Youth Welfare Code, provides in part:

[G.R. No. 114742. July 17, 1997] In an order, dated 07 April 1989, the trial court "`Art. 3. Rights of the Child. - x x x
adjudged:
CARLITOS E. SILVA, Petitioner, v. HON. COURT OF `(1) x x x
APPEALS and SUZANNE T. GONZALES, Respondents. "WHEREFORE, premises considered, judgment is
rendered directing respondent to allow herein
`(2) x x x
petitioner visitorial rights to his children during
DECISION
Saturdays and/or Sundays, but in no case should
he take out the children without the written `(3) x x x
VITUG, J.: consent of the mother or respondent
herein. No pronouncement as to `(4) x x x
Parents have the natural right, as well as the moral and costs."1chanroblesvirtuallawlibrary
legal duty, to care for their children, see to their proper `(5) Every child has the right to be brought up in an
upbringing and safeguard their best interest and welfare. Silva appeared somehow satisfied with the atmosphere of morality and rectitude for the enrichment and
This authority and responsibility may not be unduly denied judgment for only Gonzales interposed an appeal the strengthening of his character.
the parents; neither may it be renounced by them. Even from the RTCs order to the Court of Appeals.
when the parents are estranged and their affection for each
`(6) x x x
other is lost, the attachment and feeling for their offsprings
In the meantime, Gonzales got married to a Dutch
invariably remain unchanged. Neither the law nor the courts
national. The newlyweds emigrated to Holland with `(7) x x x
allow this affinity to suffer absent, of course, any real, grave
Ramon Carlos and Rica Natalia.
and imminent threat to the well-being of the child.
`(8) Every child has the right to protection
On 23 September 1993, the appellate tribunal against exploitation, improper influences, hazards and other
The petition bears upon this concern.
ruled in favor of Gonzales; it held: conditions or circumstances prejudicial to
his physical, mental, emotional, social and moral
Carlitos E. Silva, a married businessman, and Suzanne T.
"In all questions, regarding the care, custody, development.
Gonzales, an unmarried local actress, cohabited without the
education and property of the child, his welfare
benefit of marriage. The union saw the birth of two children:
shall be the paramount consideration' - not the `x x x'
Ramon Carlos and Rica Natalia. Not very long after, a rift in
welfare of the parents (Art. 8, PD 603). Under the
their relationship surfaced. It began, according to Silva,
predicament and/or status of both
when Gonzales decided to resume her acting career over "With Articles 3 and 8 of PD 603, in mind, We find it to the
petitioner-appellee and respondent-appellant, We
his vigorous objections. The assertion was quickly refuted best interest of the minor children, to deny visitorial and/or
find it more wholesome morally and emotionally for
by Gonzales who claimed that she, in fact, had never temporary custodial rights to the father, even at the expense
the children if we put a stop to the rotation of
stopped working throughout their relationship. At any rate, of hurting said parent. After all, if indeed his love for the
custody of said children. Allowing these children to
the two eventually parted ways. children is genuine and more divine than the love for himself,
stay with their mother on weekdays and then with
a little self-sacrifice and self-denial may bring more benefit
their father and the latter's live-in partner on
The instant controversy was spawned, in February 1986, by to the children. While petitioner-appellee, as father, may not
weekends may not be conducive to a normal
the refusal of Gonzales to allow Silva, in apparent intentionally prejudice the children by improper influence,
up-bringing of children of tender age. There is no
what the children may witness and hear while in their
father's house may not be in keeping with the atmosphere and counsel, companionship and understanding. that petitioner would have ulterior motives or undue designs
of morality and rectitude where they should be brought up. The Constitution itself speaks in terms of more than a parents natural desire to be able to call on,
the "natural and primary rights of parents in the even if it were only on brief visits, his own children. The trial
"The children concerned are still in their early formative rearing of the youth.4 There is nothing conclusive court, in any case, has seen it fit to understandably provide
years of life. The molding of the character of the child starts to indicate that these provisions are meant to this precautionary measure, i.e., "in no case (can petitioner)
at home. A home with only one parent is more normal than solely address themselves to legitimate take out the children without the written consent of the
two separate houses - (one house where one parent lives relationships. Indeed, although in varying degrees, mother."
and another house where the other parent with another the laws on support and successional rights, by
woman/man lives). After all, under Article 176 of the Family way of examples, clearly go beyond the legitimate WHEREFORE, the decision of the trial court is
Code, illegitimate children are supposed to use the members of the family and so explicitly encompass REINSTATED, reversing thereby the judgment of the
surname of and shall be under the parental authority of their illegitimate relationships as well.5 Then, too, and appellate court which is hereby SET ASIDE. No costs.
mother. most importantly, in the declaration of nullity of
marriages, a situation that presupposes
SO ORDERED.
a void or inexistent marriage, Article 49 of the
"The child is one of the most important assets of the nation.
Family Code provides for appropriate visitation
It is thus important we be careful in rearing the children G.R. No. 122749 July 31, 1996
rights to parents who are not given custody of their
especially so if they are illegitimates, as in this case.
children.
ANTONIO A. S. VALDEZ, petitioner,
"WHEREFORE, in view of all the foregoing, judgment is vs.
There is no doubt that in all cases involving a child,
hereby rendered giving due course to the appeal. The Order REGIONAL TRIAL COURT, BRANCH 102, QUEZON
his interest and welfare is always the paramount
of the Regional Trial Court of Quezon City dated April 7, CITY, and CONSUELO M.
consideration. The Court shares the view of the
1989 is hereby reversed. Petitioner-appellee's petition for GOMEZ-VALDEZ, respondents.
Solicitor General, who has recommended due
visitorial rights is hereby denied.
course to the petition, that a few hours spent by
petitioner with the children, however, could not all
"SO ORDERED."2chanroblesvirtuallawlibrary be that detrimental to the children. Similarly, what
the trial court has observed is not entirely without VITUG, J.:p
Silva comes to this Court for relief. merit; thus:
The petition for new bewails, purely on the question of law,
The issue before us is not really a question of child custody; "The allegations of respondent against the an alleged error committed by the Regional Trial Court in
instead, the case merely concerns the visitation right of a character of petitioner, even assuming as true, Civil Case No. Q-92-12539. Petitioner avers that the court a
parent over his children which the trial court has adjudged in cannot be taken as sufficient basis to render quo has failed to apply the correct law that should govern
favor of petitioner by holding that he shall have visitorial petitioner an unfit father. The fears expressed by the disposition of a family dwelling in a situation where a
rights to his children during Saturdays and/or Sundays, but respondent to the effect that petitioner shall be marriage is declared void ab initio because of psychological
in no case (could) he take out the children without the able to corrupt and degrade their children once incapacity on the part of either or both parties in the
written consent of the mother x x x." The visitation right allowed to even temporarily associate with contract.
referred to is the right of access of a noncustodial parent to petitioner is but the product of respondent's
his or her child or children.3chanroblesvirtuallawlibrary unfounded imagination, for no man, bereft of all
The pertinent facts giving rise to this incident are, by large,
moral persuasions and goodness, would ever take
not in dispute.
There is, despite a dearth of specific legal provisions, the trouble and expense in instituting a legal action
enough recognition on the inherent and natural right of for the purpose of seeing his illegitimate children. It
can just be imagined the deep sorrows of a father Antonio Valdez and Consuelo Gomez were married on 05
parents over their children. Article 150 of the Family Code
who is deprived of his children of tender January 1971. Begotten during the marriage were five
expresses that "(f)amily relations include those x x x (2)
ages."6chanroblesvirtuallawlibrary children. In a petition, dated 22 June 1992, Valdez sought
(b)etween parents and children; x x x." Article 209, in
the declaration of nullity of the marriage pursuant to Article
relation to Article 220, of the Code states that it is the
36 of the Family code (docketed Civil Case No. Q-92-12539,
natural right and duty of parents and those exercising The Court appreciates the apprehensions of
Regional Trial Court of Quezon City, Branch 102). After the
parental authority to, among other things, keep children in private respondent and their well-meant concern
hearing the parties following the joinder of issues, the trial
their company and to give them love and affection, advice for the children; nevertheless, it seems unlikely
court,1 in its decision of 29 July 1994, granted the Consequently, considering that Article 147 of the II
petition, viz: Family Code explicitly provides that the property
acquired by both parties during their union, in the Articles 50, 51 and 52 in relation to Articles 102 and 129 of
WHEREFORE, judgment is hereby rendered as follows: absence of proof to the contrary, are presumed to the Family Code govern the disposition of the family
have been obtained through the joint efforts of the dwelling in cases where a marriage is declared void ab initio,
parties and will be owned by them in equal shares, including a marriage declared void by reason of the
(1) The marriage of petitioner Antonio Valdez and
plaintiff and defendant will own their "family psychological incapacity of the spouses.
respondent Consuelo Gomez-Valdez is hereby declared
home" and all their properties for that matter in
null and void under Article 36 of the Family Code on the
equal shares.
ground of their mutual psychological incapacity to comply III
with their essential marital obligations;
In the liquidation and partition of properties owned
Assuming arguendo that Article 147 applies to marriages
in common by the plaintiff and defendant, the
(2) The three older children, Carlos Enrique III, Antonio declared void ab initio on the ground of the psychological
provisions on ownership found in the Civil Code
Quintin and Angela Rosario shall choose which parent they incapacity of a spouse, the same may be read consistently
shall apply.3 (Emphasis supplied.)
would want to stay with. with Article 129.

In addressing specifically the issue regarding the

Stella Eloisa and Joaquin Pedro shall be placed in the IV
disposition of the family dwelling, the trial court
custody of their mother, herein respondent Consuelo
said:
Gomez-Valdes. It is necessary to determine the parent with whom majority
of the children wish to stay.5
Considering that this Court has already declared
The petitioner and respondent shall have visitation rights
the marriage between petitioner and respondent
over the children who are in the custody of the other. The trial court correctly applied the law. In a void marriage,
as null and void ab initio, pursuant to Art. 147, the
property regime of petitioner and respondent shall regardless of the cause thereof, the property relations of the
(3) The petitioner and the respondent are directed to start be governed by the rules on ownership. parties during the period of cohabitation is governed by the
proceedings on the liquidation of their common provisions of Article 147 or Article 148, such as the case
properties as defined by Article 147 of the Family Code, and may be, of the Family Code. Article 147 is a remake of
The provisions of Articles 102 and 129 of the
to comply with the provisions of Articles 50, 51, and 52 of Article 144 of the Civil Code as interpreted and so applied in
Family Code finds no application since Article 102
the same code, within thirty (30) days from notice of this previous cases;6 it provides:
refers to the procedure for the liquidation of
decision.
the conjugal partnership property and Article 129
refers to the procedure for the liquidation of Art. 147. When a man and a woman who are capacitated to
Let a copy of this decision be furnished the Local Civil the absolute community of property.4 marry each other, live exclusively with each other as
Registrar of Mandaluyong, Metro Manila, for proper husband and wife without the benefit of marriage or under a
recording in the registry of marriages.2 (Emphasis ours.) void marriage, their wages and salaries shall be owned by
Petitioner moved for a reconsideration of the order.
them in equal shares and the property acquired by both of
The motion was denied on 30 October 1995.
Consuelo Gomez sought a clarification of that portion of the them through their work or industry shall be governed by the
decision directing compliance with Articles 50, 51 and 52 of rules on co-ownership.
In his recourse to this Court, petitioner submits that
the Family Code. She asserted that the Family Code
Articles 50, 51 and 52 of the Family Code should
contained no provisions on the procedure for the liquidation In the absence of proof to the contrary, properties acquired
be held controlling: he argues that:
of common property in "unions without marriage." while they lived together shall be presumed to have been
Parenthetically, during the hearing of the motion, the obtained by their joint efforts, work or industry, and shall be
children filed a joint affidavit expressing their desire to I owned by them in equal shares. For purposes of this Article,
remain with their father, Antonio Valdez, herein petitioner. a party who did not participate in the acquisition by the other
Article 147 of the Family Code does not apply to party of any property shall be deemed to have contributed
In an order, dated 05 May 1995, the trial court made the cases where the parties are psychologically jointly in the acquisition thereof in the former's efforts
following clarification: incapacitated. consisted in the care and maintenance of the family and of
the household.
Neither party can encumber or dispose by acts inter vivos of their common children; in default thereof or waiver first paragraph of Articles 50 of the Family Code, applying
his or her share in the property acquired during cohabitation by any or all of the common children, each vacant paragraphs (2), (3), (4) and 95) of Article 43, 13 relates only,
and owned in common, without the consent of the other, share shall belong to the respective surviving by its explicit terms, to voidable marriages and,
until after the termination of their cohabitation. descendants, or still in default thereof, to the exceptionally, to void marriages under Article 40 14 of the
innocent party. The forfeiture shall take place upon Code, i.e., the declaration of nullity of a subsequent
When only one of the parties to a void marriage is in good the termination of the cohabitation9 or declaration marriage contracted by a spouse of a prior void marriage
faith, the share of the party in bad faith in the ownership of nullity of the marriage. 10 before the latter is judicially declared void. The latter is a
shall be forfeited in favor of their common children. In case special rule that somehow recognizes the philosophy and
of default of or waiver by any or all of the common children When the common-law spouses suffer from a legal an old doctrine that void marriages are inexistent from the
or their descendants, each vacant share shall belong to the impediment to marry or when they do not live very beginning and no judicial decree is necessary to
innocent party. In all cases, the forfeiture shall take place exclusively with each other (as husband and wife), establish their nullity. In now requiring for purposes of
upon the termination of the cohabitation. only the property acquired by both of them through remarriage, the declaration of nullity by final judgment of the
their actual joint contribution of money, property or previously contracted void marriage, the present law aims
industry shall be owned in common and in to do away with any continuing uncertainty on the status of
This particular kind of co-ownership applies when a man
proportion to their respective contributions. Such the second marriage. It is not then illogical for the provisions
and a woman, suffering no illegal impediment to marry each
contributions and corresponding shares, however, of Article 43, in relation to Articles 41 15 and 42, 16 of the
other, so exclusively live together as husband and wife
are prima facie presumed to be equal. The share Family Code, on the effects of the termination of a
under a void marriage or without the benefit of marriage.
of any party who is married to another shall accrue subsequent marriage contracted during the subsistence of a
The term "capacitated" in the provision (in the first
to the absolute community or conjugal partnership, previous marriage to be made applicable pro hac vice. In all
paragraph of the law) refers to the legal capacity of a party
as the case may be, if so existing under a valid other cases, it is not to be assumed that the law has also
to contract marriage, i.e., any "male or female of the age of
marriage. If the party who has acted in bad faith is meant to have coincident property relations, on the one
eighteen years or upwards not under any of the
not validly married to another, his or her share hand, between spouses in valid and voidable marriages
impediments mentioned in Articles 37 and 38"7 of the Code.
shall be forfeited in the manner already heretofore (before annulment) and, on the other, between common-law
expressed. 11 spouses or spouses of void marriages, leaving to ordain, on
Under this property regime, property acquired by both the latter case, the ordinary rules on co-ownership subject
spouses through their work and industry shall be governed to the provisions of the Family Code on the "family
by the rules on equal co-ownership. Any property acquired In deciding to take further cognizance of the issue
home," i.e., the provisions found in Title V, Chapter 2, of the
during the union is prima facie presumed to have been on the settlement of the parties' common property,
Family Code, remain in force and effect regardless of the
obtained through their joint efforts. A party who did not the trial court acted neither imprudently nor
property regime of the spouses.
participate in the acquisition of the property shall be precipitately; a court which has jurisdiction to
considered as having contributed thereto jointly if said declare the marriage a nullity must be deemed
likewise clothed in authority to resolve incidental WHEREFORE, the questioned orders, dated 05 May 1995
party's "efforts consisted in the care and maintenance of the
and consequential matters. Nor did it commit a and 30 October 1995, of the trial court are AFFIRMED. No
family household."8 Unlike the conjugal partnership of gains,
reversible error in ruling that petitioner and private costs.
the fruits of the couple's separate property are not included
in the co-ownership. respondent own the "family home" and all their
common property in equal shares, as well as in TITLE II
concluding that, in the liquidation and partition of
Article 147 of the Family Code, in the substance and to the LEGAL SEPARATION
the property owned in common by them, the
above extent, has clarified Article 144 of the Civil Code; in
provisions on co-ownership under the Civil Code,
addition, the law now expressly provides that —
not Articles 50, 51 and 52, in relation to Articles
Art. 55. A petition for legal separation may be filed on any of
102 and 129, 12 of the Family Code, should aptly
(a) Neither party can dispose or encumber by the following grounds:
prevail. The rules set up to govern the liquidation
act intervivos his or her share in co-ownership property, of either the absolute community or the conjugal
without consent of the other, during the period of partnership of gains, the property regimes
cohabitation; and recognized for valid and voidable marriages (in the (1) Repeated physical violence or grossly abusive conduct
latter case until the contract is annulled), are directed against the petitioner, a common child, or a child of
(b) In the case of a void marriage, any party in bad faith irrelevant to the liquidation of the co-ownership the petitioner;
shall forfeit his or her share in the co-ownership in favor of that exists between common-law spouses. The
(2) Physical violence or moral pressure to compel the Art. 57. An action for legal separation shall be filed be within five years from the time of the occurrence of any
petitioner to change religious or political affiliation; within five years from the time of the occurrence of of the following causes:
the cause. (102)
(3) Attempt of respondent to corrupt or induce the petitioner,
(a) Repeated physical violence or grossly abusive conduct
a common child, or a child of the petitioner, to engage in
directed against the petitioner, a common child, or a child of
prostitution, or connivance in such corruption or
the petitioner;
inducement; A.M. No. 02-11-11-SC March 4, 2003
(4) Final judgment sentencing the respondent to (b) Physical violence or moral pressure to compel the
imprisonment of more than six years, even if pardoned; RE: PROPOSED RULE ON LEGAL petitioner to change religious or political affiliation;
SEPARATION
(5) Drug addiction or habitual alcoholism of the respondent;
(c) Attempt of respondent to corrupt or induce the petitioner,
RESOLUTION a common child, or a child of the petitioner, to engage in
(6) Lesbianism or homosexuality of the respondent;
prostitution, or connivance in such corruption or
(7) Contracting by the respondent of a subsequent Acting on the letter of the Chairman of the inducement;
bigamous marriage, whether in the Philippines or abroad; Committee on Revision of the Rules of Court
submitting for this Court's consideration and (d) Final judgment sentencing the respondent to
(8) Sexual infidelity or perversion;
approval the Proposed Rule on Legal Separation, imprisonment of more than six years, even if pardoned;
(9) Attempt by the respondent against the life of the the Court Resolved to APPROVED the same.
petitioner; or (e) Drug addiction or habitual alcoholism of the respondent;
The Rule shall take effect on March 15,
(10) Abandonment of petitioner by respondent without 2003 following its publication in a newspaper of
justifiable cause for more than one year. (f) Lesbianism or homosexuality of the respondent;
general circulation not later than March 7, 2003
For purposes of this Article, the term "child" shall include a (g) Contracting by the respondent of a subsequent
child by nature or by adoption. (9a) March 4, 2003
bigamous marriage, whether in or outside the Philippines;

Davide Jr. C.J., Bellosillo, Puno, Vitug, Mendoza,

(h) Sexual infidelity or perversion of the respondent;
Art. 56. The petition for legal separation shall be denied on Panganiban, Quisumbing, Sandoval Gutierrez,
any of the following grounds: Carpio, Austria-Martinez, Carpio-Morales, Callejo,
Sr. and Azcuna, JJ. (i) Attempt on the life of petitioner by the respondent; or
(1) Where the aggrieved party has condoned the offense or Ynares-Santiago, on leave,
act complained of; Corona, officially on leave. (j) Abandonment of petitioner by respondent without
justifiable cause for more than one year.
(2) Where the aggrieved party has consented to the
RULE ON LEGAL SEPARATION
commission of the offense or act complained of;
(b) Contents and form. - The petition for legal separation
(3) Where there is connivance between the parties in the Section 1. Scope. - This Rule shall govern shall:
commission of the offense or act constituting the ground for petitions for legal separation under the Family
legal separation; Code of the Philippines. (1) Allege the complete facts constituting the cause of
action.
(4) Where both parties have given ground for legal
The Rules of Court shall apply
separation;
suppletorily. (2) State the names and ages of the common children of the
(5) Where there is collusion between the parties to obtain parties, specify the regime governing their property relations,
decree of legal separation; or Section 2. Petition. - (a) Who may and when to the properties involved, and creditors, if any. If there is no
file. - (1) A petition for legal separation may be filed adequate provision in a written agreement between the
(6) Where the action is barred by prescription. (100a) only by the husband or the wife, as the case may parties, the petitioner may apply for a provisional order for
spousal support, custody and support of common children,
visitation rights, administration of community or conjugal (2) docket number; (3) nature of the petition; (4) (c) If the public prosecutor reports that no collusion exists,
property, and other similar matters requiring urgent action, principal grounds of the petition and the reliefs the court shall set the case for pre-trial. It shall be the duty
prayed for, and (5) a directive for respondent to of the public prosecutor to appear for the State at the
(3) Be verified and accompanied by a certification against answer within thirty days from the last issue of pre-trial.
forum shopping. The verification and certification must be publication.
personally signed by the petitioner. No petition may be filed Section 7. Social Worker. - The court may require a social
solely by counsel or through an attorney-in-fact. If the Section 4. Motion to Dismiss. - No motion to worker to conduct a case study and to submit the
petitioner is in a foreign country, the verification and dismiss the petition shall be allowed except on the corresponding report at least three days before the pre-trial.
certification against forum shopping shall be authenticated ground of lack of jurisdiction over the subject The court may also require a case study at any stage of the
by the duly authorized officer of the Philippine embassy or matter or over the parties; provided, however, that case whenever necessary,
legation, consul general, consul or vice-consul or consular any other ground that might warrant a dismissal of
agent in said country the case may be raised as an affirmative defense Section 8. Pre-trial. -
in an answer.
(4) Be filed in six copies. The petitioner shall, within five (a) Pre-trial mandatory.-A pre-trial is mandatory. On motion
days from such filing, furnish a copy of the petition to the Section 5. Answer. - (a) The respondent shall file or motu proprio, the court shall set the pre-trial after the last
City or Provincial Prosecutor and the creditors, if any, and his answer within fifteen days from receipt of pleading has been served and filed, or upon receipt of the
submit to the court proof of such service within the same summons, or within thirty days from the last issue report of the public prosecutor that no collusion exists
period. of publication in case of service of summons by between the parties on a date not earlier than six months
publication. The answer must be verified by from date of the filing of the petition.
Failure to comply with the preceding requirements respondent himself and not by counsel or
may be a ground for immediate dismissal of the petition. attorney-in-fact.
(b) Notice of Pre-trial.-(1) The notice of pre-trial shall
contain:
(c) Venue. - The petition shall be filed in the Family Court of (b) If the respondent fails to file an answer, the
the province or city where the petitioner or the respondent court shall not declare him in default.
(a) the date of pre-trial conference; and
has been residing for at least six months prior to the date of
filing "or in The case of a non-resident respondent, where (c) Where no answer is filed/or if the answer does
(b) an order directing the parties to file and serve their
he may be found in the Philippines, at the election of the not tender an issue the court shall order the public
respective pre-trial briefs in such manner as shall ensure
petitioner. prosecutor to investigate whether collusion exists
the receipt thereof by the adverse party at least three days
between the parties.
before the date of pre-trial.
Section 3. Summons. - The service of summons shall be
governed by Rule 14 of the Rules of Court and by the Section 6. Investigation Report of Public
(2) The notice shall be served separately on the parties and
following rules: Prosecutor. - (a) Within one one month after
their respective counsels as well as on the public prosecutor.
receipt of the court order mentioned in paragraph
It shall be their duty to appear personally at the pre-trial.
(a) Where the respondent cannot be located at his given (c) of the preceeding section, the public prosecutor
address or his whereabouts are unknown and cannot be shall submit a report to the court on whether the
parties are in collusion and serve copies on the (3) Notice of pre-trial shall be sent to the respondent even if
ascertained by diligent inquiry, service of summons may, by
parties and their respective counsels, if any. he fails to file an answer. In case of summons by publication
leave of court, be effected upon him by publication once a
and the respondent failed to file his answer, notice of
week for two consecutive weeks in a newspaper of general
pre-trial shall be sent to respondent at his last known
circulation in the Philippines and in such place as the court (b) If the public prosecutor finds that collusion
address.
may order. In addition, a copy of the summons shall be exists, he shall state the basis thereof in his report.
served on respondent at his last known address by The parties shall file their respective comments on
registered mail or by any other means the court may deem the finding of collusion within ten days from receipt Section 9. Contents of pre-trial brief. - The pre-trial brief
sufficient. of copy of the report. The court shall set the report shall contain the following:
for hearing and if convinced that parties are in
(b) The summons to be published shall be contained in an collusion,-it shall dismiss the petition.
order of the court with the following data; (1) title of the case;
(1) A statement of the willingness of the parties to enter into The mediator shall render a report within fabrication or suppression of evidence during the trial on the
agreements as may be allowed by law, indicating the one month from referral which, for good reasons, merits.
desired terms thereof; the court may extend for a period not exceeding
one month. (c) The parties shall not be allowed to raise issues or
(2) A concise statement of their respective claims together present witnesses and evidence other than those stated in
with the applicable laws and authorities; In case mediation is not availed of or the pre-trial order. The order shall control the trial of the
where it fails, the court shall proceed with the case unless modified by the court to prevent manifest
(3) Admitted facts and proposed stipulations of facts, as well pre-trial conference, on which occasion it shall injustice.
as the disputed factual and legal issues; consider the advisability of receiving expert
testimony and such other matters as may aid in the (d) The parties shall have five days from receipt of the
prompt disposition of the petition. pre-trial order to propose corrections or modifications.
(4) All the evidence to be presented, including expert
opinion, if any, briefly stating or describing the nature and
purpose thereof; Section 12. Pre-trial order. - (a) The proceedings Section 13. Prohibited compromise. - The court shall not
in the pre-trial shall be recorded. Upon termination allow compromise on prohibited matters, such as the
of the pre-trial, the court shall issue a pre-trial following:
(5) The number and names of the witnesses and their
order which shall recite in detail the matters taken
respective affidavits; and
up in the conference, the action taken thereon, the
(1) The civil status of persons;
amendments allowed on the pleadings, and,
(6) Such other matters as the court may require. except as to the ground of legal separation, the
agreements or admissions made by the parties on (2) The validity of a marriage or of a legal separation;
Failure to file the pre-trial brief or to comply with its any of the matters considered, including any
required contents shall have the same effect as failure to provisional order that may be necessary or agreed (3) Any ground lor legal separation;
appear at the pre-trial under the succeeding section. upon by the parties.
(4) Future support;
Section 10. Effect of failure to appear at the pre-trial. - (1) If (b) Should the action proceed to trial, the order
the petitioner fails to appear personally, the case shall be shall contain a recital of the following: (5) The jurisdiction of courts; and
dismissed unless his counsel or a duly authorized
representative appears in court and proves a valid excuse (1) Facts undisputed, admitted, and those which (6) Future legitime.
for the non-appearance of the petitioner. need not be proved subject to Section 13 of this
Rule;
Section 14. Trial. - (a) The presiding judge shall personally
(2) If the respondent filed his answer but fails to appear, the
conduct the trial of the case. No delegation of the reception
court shall proceed with the pre-trial and require the public (2) Factual and legal issues to be litigated; of evidence to a commissioner shall be allowed except as to
prosecutor to investigate the non-appearance of the
matters involving property relations of the spouses.
respondent and submit within fifteen days a report to the
(3) Evidence, including objects and documents,
court stating whether his non-appearance is due to any
that have been marked and will be presented; (b) The grounds for legal separation must be proved. No
collusion between the parties/ If there is no collusion the
court shall require the public prosecutor to intervene for the judgment on the pleadings, summary judgment, or
State during the trial on the.merits to prevent suppression or (4) Names of witnesses who will be presented and confession of judgment shall be allowed.
fabrication of evidence. their testimonies in the form of affidavits; and
(c) The court may order the exclusion from the courtroom of
Section 11. Pre-trial conference. - At the pre-trial (5) Schedule of the presentation of evidence. all persons, including members of the press, who do not
conference, the court may refer the issues to a mediator have a direct interest in the case. Such an order may be
who shall assist the parties in reaching an agreement on The pre-trial order shall also contain a made if the court determines on the record othat requiring a
matters not prohibited by law. directive to the public prosecutor to appear for the party to testify in open court would not enhance the
State and take steps to prevent collusion between ascertainment of truth; would cause to the party
the parties at any stage of the proceedings and psychological harm or inability to effectively communicate
due to embarrassment, fear, or timidity; would violate the (c) The decision shall likewise declare that: under the Family Code unless such matters had been
party's right to privacy; or would be offensive to decency adjudicated in previous judicial proceedings.
(1) The spouses are entitled to live separately from
(d) No copy shall be taken nor any examination or perusal each other but the marriage bond is not severed; Section 19. Issuance of Decree of Legal Separation. - (a)
of the records of the case or parts thereof be made by any The court shall issue the Decree of Legal Separation after:
person other than a party or counsel of a party, except by (2) The obligation of mutual support between the
order of the court. spouses ceases; and (1) registration of the entry of judgment granting the petition
tor legal separation in the Civil Registry where the marriage
Section 15. Memoranda. - The court may require the (3) The offending spouse is disqualified from was celebrated and in the Civil Registry where the Family
parties and the public prosecutor to file their respective inheriting from the innocent spouse by intestate Court is located; and
memoranda in support of their claims within fifteen days succession, and provisions in favor of the
from the date the trial is terminated. No other pleadings or offending spouse made in the will of the innocent (2) registration of the approved partition and distribution of
papers may be submitted without leave of court. After the spouse are revoked by operation of law. the properties of the spouses, in the proper Register of
lapse of the period herein provided, the case will be Deeds where the real properties are located.
considered submitted for decision, with or without the
(d) The parties, including the Solicitor General and
memoranda.
the public prosecutor, shall be served with copies (b) The court shall quote in the Decree the dispositive
of the decision personally or by registered mail. If portion of the judgment entered and attach to the Decree
Section 16. Decision. - (a) The court shall deny the petition the respondent summoned by publication failed to the approved deed of partition.
on any of the following grounds: appear in the action, the dispositive part of the
decision shall also be published once in a Section 20. Registration and publication of the Decree of
(1) The aggrieved party has condoned the offense or act newspaper of general circulation. Legal Separation; decree as best evidence. -
complained of or has consented to the commission of the
offense or act complained of; Section 17. Appeal. - (a) Registration of decree.-The prevailing party shall cause
the registration of the Decree in the Civil Registry where the
(2) There is connivance in the commission of the offense-or (a) Pre-condition. - No appeal from the decision marriage was registered, in the Civil Registry of the place
act constituting the ground for legal separation; shall be allowed unless the appellant has filed a where the Family Court is situated, and in the National
motion for reconsideration or new trial within fifteen Census and Statistics Office. He shall report to the court
(3) Both parties have given ground for legal separation; days from notice of judgment. compliance with this requirement within thirty days iron
receipt of the copy of the Decree.
(4) There is collusion between the parties to obtain the (b) Notice of Appeal - An aggrieved party or the
decree of legal separation; or Solicitor General may appeal from the decision by (b) Publication of decree.-- In case service of summons was
filing a Notice of Appeal within fifteen days from made by publication, the parties shall cause the publication
(5) The action is barred by prescription. notice of denial of the motion for reconsideration or of the Decree once in a newspaper of general circulation.
new trial. The appellant shall serve a copy of the
notice of appeal upon the adverse parties. (c) Best evidence.-The registered Decree shall be the best
(b) If the court renders a decision granting the petition, it
shall declare therein that the Decree of Legal Separation evidence to prove the legal separation of the parties and
shall be issued by the court only after full compliance with Section 18. Liquidation, partition and distribution, shall serve as notice to third persons concerning the
liquidation under the Family Code. custody, and support of minor children. - Upon properties of petitioner and respondent.
entry of the judgment granting the petition, or, in
case of appeal, upon receipt of the entry of Section 21. Effect of death of a party; duty of the Family
However, in the absence of any property of.the
judgment of the appellate court granting the Court or Appellate Court. - (a) In case a party dies at any
parties, the court shall forthwith issue a Decree of Legal
petition, the Family Court, on motion of either party, stage of me proceedings before the entry of judgment, the
Separation which shall be registered in the Civil Registry
shall proceed with the liquidation, partition and court shall order the case closed and terminated without
where the marriage was recorded and in the Civil Registry
distribution of the properties of the spouses, prejudice to the settlement of estate proper proceedings in
where the Family Court granting the legal separation is
including custody and support of common children, the regular courts.
located.
(b) If the party dies after the entry of judgment, the same property relations under which the spouses shall (c) The creditors shall be furnished with copies of the
shall be binding upon the parties and their successors in be covered. motion and the agreement.
interest in the settlement of the estate in the regular courts.
(d) If the spouses reconciled after the issuance of (d) The court shall require the spouses to cause the
Section 22. Petition for revocation of donations. - (a) Within the Decree, the court, upon proper motion, shall publication of their verified motion for two consecutive
five (5) years from the date the decision granting the petition issue a decree of reconciliation declaring therein weeks in a newspaper of general circulation.
for legal separation has become final, the innocent spouse that the Decree is set aside but the separation of
may file a petition under oath the same proceeding for legal property and any forfeiture of the share of the (e) After due hearing, and the court decides to grant the
separation to revoke the donations in favor of the offending guilty spouse already effected subsists, unless the motion, it shall issue an order directing the parties to record
spouse. spouses have agreed to revive their former regime the order in the proper registries of property within thirty
of property relations or adopt a new regime. days from receipt of a copy of the order and submit proof of
(b)The revocation of the donations shall be recorded in the compliance within the same period.
Register of Deeds of Deeds in the places where the (e) In case of paragraphs (b), (c), and (d). if the
properties are located. reconciled spouses choose to adopt a regime of Section 25. Effectivity. - This Rule shall take effect on
property relations different from that which they March 15,2003 following its publication in a newspaper of
(c)Alienations, liens, and encumbrances registered in good had prior to the filing of the petition for legal general circulation not later than March 7, 2003.
faith. before the recording of the petition for revocation in separation, the spouses shall comply with Section
the registries of property shall be respected. 24 hereof.
Art. 58. An action for legal separation shall in no case be
tried before six months shall have elapsed since the filing of
(d)After the issuance of the Decree of Legal Separation, the (f) The decree of reconciliation shall be recorded in the petition. (103)
innocent spouse may revoke the designation of the the Civil Registries where the marriage and the
offending spouse as a beneficiary in any insurance policy Decree had been registered. Art. 59. No legal separation may be decreed unless the
even if such designation be stipulated as irrevocable. The Court has taken steps toward the reconciliation of the
revocation or change shall take effect upon written Section 24. Revival of property regime or adoption spouses and is fully satisfied, despite such efforts, that
notification thereof to the insurer. of another. - reconciliation is highly improbable. (n)

Art. 60. No decree of legal separation shall be based upon a

Section 23. Decree of Reconciliation. - (a) If the spouses (a) In case of reconciliation under Section 23, stipulation of facts or a confession of judgment.
had reconciled, a joint manifestation under oath, duly paragraph (c) above, the parties shall file a verified
signed by the spouses, may be filed in the same proceeding motion for revival of regime of property relations or In any case, the Court shall order the prosecuting attorney
for legal separation. the adoption of another regime of property or fiscal assigned to it to take steps to prevent collusion
relations in the same proceeding for legal between the parties and to take care that the evidence is
(b) If the reconciliation occurred while the proceeding for separation attaching to said motion their not fabricated or suppressed. (101a)
legal separation is pending, the court shall immediately agreement for the approval of the court.
Art. 61. After the filing of the petition for legal separation, the
issue an order terminating the proceeding. spouses shall be entitled to live separately from each other.
(b) The agreement which shall be verified shall
(c) If the reconciliation occurred after the rendition of the specify the following: The court, in the absence of a written agreement between
judgment granting the petition for legal separation but the spouses, shall designate either of them or a third person
before the issuance of the Decree, the spouses shall (1) The properties to be contributed to the restored to administer the absolute community or conjugal
express in their manifestation whether or not they agree to or new regime; partnership property. The administrator appointed by the
revive the former regime of their property relations or court shall have the same powers and duties as those of a
choose a new regime. guardian under the Rules of Court. (104a)
(2) Those to be retained as separate properties of
each spouse; and Art. 62. During the pendency of the action for legal
The court shall immediately issue a Decree of separation, the provisions of Article 49 shall likewise apply
Reconciliation declaring that the legal separation (3) The names of all their known creditors, their to the support of the spouses and the custody and support
proceeding is set aside and specifying the regime of addresses, and the amounts owing to each. of the common children. (105a)
 placed the several pieces of property either in his (Conchita) Alanis Pacete and the herein defendants, Enrico
name and Clarita or in the names of his children L. Pacete, in accordance with the Philippine laws and with
G.R. No. L-53880 March 17, 1994 with Clarita and other "dummies;" that Pacete consequences, as provided for by our laws;
ignored overtures for an amicable settlement; and
that reconciliation between her and Pacete was 2. That the following properties are hereby declared as the
ENRICO L. PACETE, CLARITA DE LA CONCEPCION,
impossible since he evidently preferred to continue conjugal properties of the partnership of the plaintiff,
EMELDA C. PACETE, EVELINA C. PACETE and
living with Clarita. Concepcion (Conchita) Alanis Pacete and the defendant,
EDUARDO C. PACETE, petitioners,
vs. Enrico L. Pacete, half and half, to wit:
HON. GLICERIO V. CARRIAGA, JR. and CONCEPCION The defendants were each served with summons
(CONCHITA) ALANIS PACETE, respondents. on 15 November 1979. They filed a motion for an 1. The parcel of land covered by TCT No. V-815 which is a
extension of twenty (20) days from 30 November parcel of land situated in the barrio of Langcong,
1979 within which to file an answer. The court Municipality of Matanog (previously of Parang), province of
Juan G. Sibug and Rodolfo B. Quiachon for petitioners.
granted the motion. On 18 December 1979, Maguindanao (previously of Cotabato province) with an
appearing through a new counsel, the defendants area of 45,265 square meters registered in the name of
Julio F. Andres, Jr. for private respondent. filed a second motion for an extension of another Enrico Pacete, Filipino, of legal age, married to Conchita
thirty (30) days from 20 December 1979. On 07 Alanis as shown in Exhibits "B" and "B-1" for the plaintiff.
January 1980, the lower court granted the motion
but only for twenty (20) days to be counted from 20
2. A parcel of land covered by Transfer Certificate of Title
VITUG, J.: December 1979 or until 09 January 1980. The
No. T-20442, with an area of 538 square meters and
Order of the court was mailed to defendants'
covered by Tax Declaration No. 2650 (74) in the name of
counsel on 11 January 1980. Likely still unaware
The issue in this petition for certiorari is whether or not the Enrico Pacete, situated in the Poblacion of Kidapawan,
of the court order, the defendants, on 05 February
Court of First Instance (now Regional Trial Court) of North Cotabato, together with all its improvements, which
1980, again filed another motion (dated 18
Cotabato, Branch I, in Cotabato City, gravely abused its parcel of land, as shown by Exhibits "K-1" was acquired by
January 1980) for an extension of "fifteen (15)
discretion in denying petitioners' motion for extension of way of absolute deed of sale executed by Amrosio Mondog
days counted from the expiration of the 30-day
time to file their answer in Civil Case No. 2518, on January 14, 1965.
period previously sought" within which to file an
in declaring petitioners in default and in rendering its
answer. The following day, or on 06 February 1980,
decision of 17 March 1980 which, among other things, 3. A parcel of land covered by Transfer Certificate of Title
the court denied this last motion on the ground that
decreed the legal separation of petitioner Enrico L. Pacete No. T-20424 and covered by Tax Declaration No. 803 (74),
it was "filed after the original period given . . . as
and private respondent Concepcion Alanis and held to be with an area of 5.1670 hectares, more or less, as shown by
first extension had expired."1
null and void ab initio the marriage of Enrico L. Pacete to Exhibit "R", the same was registered in the name of Enrico
Clarita de la Concepcion. Pacete and the same was acquired by Enrico Pacete last
The plaintiff thereupon filed a motion to declare the
February 17, 1967 from Ambag Ampoy, as shown by
defendants in default, which the court forthwith
On 29 October 1979, Concepcion Alanis filed with the court Exhibit "R-1", situated at Musan, Kidapawan, North
granted. The plaintiff was then directed to present
below a complaint for the declaration of nullity of the Cotabato.
her evidence.2 The court received plaintiff's
marriage between her erstwhile husband Enrico L. Pacete
evidence during the hearings held on 15, 20, 21
and one Clarita de la Concepcion, as well as for legal 4. A parcel of land situated at Lanao, Kidapawan, North
and 22 February 1980.
separation (between Alanis and Pacete), accounting and Cotabato, with an area of 5.0567 hectares, covered by Tax
separation of property. In her complaint, she averred that Declaration No. 4332 (74), as shown by Exhibit "S", and
she was married to Pacete on 30 April 1938 before the On 17 March 1980, the court3 promulgated the
registered in the name of Enrico Pacete.
Justice of the Peace of Cotabato, Cotabato; that they had a herein questioned decision, disposing of the case,
child named Consuelo who was born on 11 March 1943; thus —
5. A parcel of land covered by Transfer Certificate of Title
that Pacete subsequently contracted (in 1948) a second
No. T-9750, situated at Lika, Mlang, North Cotabato, with an
marriage with Clarita de la Concepcion in Kidapawan, North WHEREFORE, order is hereby issued ordering:
area of 4.9841 hectares and the same is covered by Tax
Cotabato; that she learned of such marriage only on 01
Declaration No. 803 (74) and registered in the name of
August 1979; that during her marriage to Pacete, the latter 1. The issuance of a Decree of Legal Separation of Enrico Pacete and which land was acquired by Enrico
acquired vast property consisting of large tracts of land, the marriage between, the plaintiff, Concepcion
fishponds and several motor vehicles; that he fraudulently
Pacete from Salvador Pacete on September 24, 1962, as Evelina Pacete, situated at Kiab, Matalam, North b. Motor vehicle with Plate No. T-RG-784; Make, Dodge;
shown by Exhibit "Q-1". Cotabato, and ordering the registration of the Motor No. T214-229547; Chassis No. 10D-1302-C; and
same in the joint name of Concepcion (Conchita) Type, Mcarrier;
6. A parcel of land covered by Transfer Certificate of Title Alanis Pacete and Enrico L. Pacete as their
No. T-9944, with an area of 9.9566 and also covered by Tax conjugal property, with address on the part of c. Motor vehicle with Plate No. J-PR-818; Make, Ford;
Declaration No. 8608 (74) and registered in the name of the Concepcion (Conchita) Alanis Pacete at Parang, Motor No. GRW-116188; Chassis No.
defendant Enrico L. Pacete which Enrico L. Pacete Maguindanao and on the part of Enrico L. Pacete HOCC-GPW-1161-88-C; Type, Jeep;
acquired from Sancho Balingcos last October 22, 1962, as at Kidapawan, North Cotabato.
shown by Exhibit "L-1" and which parcel of land is situated d. Motor vehicle with Plate No. TH-5J-583; Make, Ford:
at (Kialab), Kiab, Matalam, North Cotabato. 4. Ordering likewise the cancellation of Original Motor No. F70MU5-11111; Chassis No.
Certificate of Title No. V-20101, covering Lot No. HOCC-GPW-1161188-G; Type, Stake;
7. A parcel of land covered by Transfer Certificate of Title 77, in the name of Eduardo C. Pacete, situated at
No. T-9227, situated at Kiab, Matalam, North Cotabato, with New Lawaan, Mlang, North Cotabato, and the
e. Motor vehicle with Plate No. TH-5J-584; Make, Hino;
an area of 12.04339 hectares, more or less, and also issuance of a new Transfer Certificate of Title in
Motor No. ED300-45758; Chassis No. KB222-22044; Type,
covered by Tax Declaration No. 8607 (74) both in the name the joint name of (half and half) Concepcion
Stake; and
of the defendant Enrico L. Pacete which he acquired last (Conchita) Alanis Pacete and Enrico L. Pacete.
October 15, 1962 from Minda Bernardino, as shown by
f. Motor vehicle with Plate No. TH-5J-585; Make, Ford:
Exhibit "M-1". 5. Ordering likewise the cancellation of Original
Motor No. LTC-780-Dv; Chassis No. 10F-13582-K; Type,
Certificate of Title No. P-29890, covering Lot 1068,
Stake.
8. A parcel of land covered by Transfer Certificate of Title situated at Kiab, Matalam, North Cotabato, with an
No. T-9228, situated at Kiab, Matalam, North Cotabato, with area of 12.1031 hectares, in the name of Emelda
C. Pacete and the issuance of a new Transfer 7. Ordering the defendant Enrico L. Pacete to pay the
an area of 10.8908 hectares, registered in the name of
Certificate of Title in the joint name (half and half) plaintiff the sum of P46,950.00 which is the share of the
Enrico Pacete and also covered by Tax Declaration No.
of Concepcion (Conchita) Alanis Pacete and plaintiff in the unaccounted income of the ricemill and corn
5781 (74) in the name of Enrico Pacete and which parcel of
Enrico L. Pacete; and declaring that the fishpond sheller for three years from 1971 to 1973.
land he acquired last September 25, 1962 from Conchita
dela Torre, as shown by Exhibit "P-1". situated at Barrio Tumanan, Bislig, Surigao Del
Sur, with an area of 48 hectares and covered by 8. Ordering the defendant, Enrico L. Pacete, to reimburse
Fishpond Lease Agreement of Emelda C. Pacete, the plaintiff the monetary equipment of 30% of whether the
9. A parcel of land covered by Transfer Certificate of Title
dated July 29, 1977 be cancelled and in lieu plaintiff has recovered as attorney's fees;
No. T-10301, situated at Linao, Matalam, North Cotabato,
thereof, the joint name of Concepcion (Conchita)
with an area of 7.2547 hectares, registered in the name of
Alanis Pacete and her husband, Enrico L. Pacete, 9. Declaring the subsequent marriage between defendant
Enrico Pacete and also covered by Tax Declaration No.
be registered as their joint property, including the Enrico L. Pacete and Clarita de la Concepcion to be void ab
8716 (74) also in the name of Enrico Pacete which Enrico
50 hectares fishpond situated in the same place, initio; and
Pacete acquired from Agustin Bijo last July 16, 1963, as
Barrio Timanan, Bislig, Surigao del Sur.
shown by Exhibit "N-1".
10. Ordering the defendants to pay the costs of this suit. 4
6. Ordering the following motor vehicles to be the
10. A parcel of land covered by Transfer Certificate of Title
joint properties of the conjugal partnership of
No. 12728 in the name of the defendant, Enrico L. Pacete, Hence, the instant special civil action of certiorari.
Concepcion (Conchita) Alanis Pacete and Enrico L.
with an area of 10.9006 hectares, situated at Linao,
Pacete, viz:
Matalam, North Cotabato and is also covered by Tax Under ordinary circumstances, the petition would have
Declaration No. 5745 (74) in the name of Enrico Pacete, as outrightly been dismissed, for, as also pointed out by private
shown on Exhibit "O" and which Enrico Pacete acquired last a. Motor vehicle with Plate No. T-RG-783; Make,
respondents, the proper remedy of petitioners should have
December 31, 1963 from Eliseo Pugni, as shown on Exhibit Dodge; Motor No. T137-20561; Chassis No.
instead been either to appeal from the judgment by default
"0-1". 83920393, and Type, Mcarrier;
or to file a petition for relief from judgment. 5 This rule,
however, is not inflexible; a petition for certiorari is allowed
3. Ordering the Cancellation of Original Certificate of Title when the default order is improperly declared, or even when
No. P-34243 covering Lot No. 1066, issued in the name of it is properly declared, where grave abuse of discretion
attended such declaration.6 In these exceptional instances, court should take steps toward getting the parties of Negros Oriental and CLEMEN G.
the special civil action of certiorari to declare the nullity of a to reconcile. RAMOS, respondents.
judgment by default is available.7 In the case at bench, the
default order unquestionably is not legally sanctioned. The The significance of the above substantive T. R. Reyes & Associates for petitioner.
Civil Code provides: provisions of the law is further underscored by the
inclusion of the following provision in Rule 18 of Soleto J. Erames for respondents.
Art. 101. No decree of legal separation shall be the Rules of Court:
promulgated upon a stipulation of facts or by confession of
judgment. Sec. 6. No defaults in actions for annulments of
marriage or for legal separation. — If the
FERNANDO, J.:p
In case of non-appearance of the defendant, the court shall defendant in an action for annulment of marriage
order the prosecuting attorney to inquire whether or not a or for legal separation fails to answer, the court
collusion between the parties exists. If there is no collusion, shall order the prosecuting attorney to investigate The question raised in this petition for certiorari is whether
the prosecuting attorney shall intervene for the State in whether or not a collusion between the parties or not Article 103 of the Civil Code prohibiting the hearing of
order to take care that the evidence for the plaintiff is not exists, and if there is no collusion, to intervene for an action for legal separation before the lapse of six months
fabricated. the State in order to see to it that the evidence from the filing of the petition, would likewise preclude the
submitted is not fabricated. court from acting on a motion for preliminary mandatory
injunction applied for as an ancillary remedy to such a suit.
The provision has been taken from Article 30 of the
Respondent Cipriano Vamenta, Jr., of the Court of First
California Civil Code,8 and it is, in substance, reproduced in The special prescriptions on actions that can put
Instance of Negros Oriental, answered the question in the
Article 60 of the Family Code.9 the integrity of marriage to possible jeopardy are
affirmative, in view of the absolute tenor of such Civil Code
impelled by no less than the State's interest in the
provision, which reads thus: "An action for legal separation
Article 101 reflects the public policy on marriages, and it marriage relation and its avowed intention not to
shall in no case be tried before six months shall have
should easily explain the mandatory tenor of the law. leave the matter within the exclusive domain and
elapsed since the filing of the petition." He therefore ordered
In Brown v. Yambao, 10 the Court has observed: the vagaries of the parties to alone dictate.
the suspension, upon the plea of the other respondent the
husband Clemente G. Ramos, of the hearing on a motion
The policy of Article 101 of the new Civil Code, calling for It is clear that the petitioner did, in fact, specifically for a writ of preliminary mandatory injunction filed by
the intervention of the state attorneys in case of pray for legal separation. 11 That other remedies, petitioner at the same time the suit for legal separation was
uncontested proceedings for legal separation (and of whether principal or incidental, have likewise been instituted. Petitioner, Lucy Somosa-Ramos, the wife who
annulment of marriages, under Article 88), is to emphasize sought in the same action cannot dispense, nor brought the action for legal separation would dispute such a
that marriage is more than a mere contract; that it is a social excuse compliance, with any of the statutory ruling. Hence, this certiorari proceeding. As will be shown
institution in which the state is vitally interested, so that its requirements aforequoted. later there is justification for such a move on the part of
continuation or interruption can not be made to depend petitioner. The respondent Judge ought to have acted
upon the parties themselves (Civil Code, Article 52; Adong WHEREFORE, the petition for certiorari is hereby differently. The plea for a writ of certiorari must be granted.
vs. Cheong Gee, 43 Phil. 43; Ramirez v. Gmur, 42 Phil. 855; GRANTED and the proceedings below, including
Goitia v. Campos, 35 Phil. 252). It is consonant with this the Decision of 17 March 1980 appealed from, are The pleadings show that on June 18, 1971, petitioner filed
policy that the inquiry by the Fiscal should be allowed to NULLIFIED and SET ASIDE. No costs. Civil Case No. 5274 in the sala of respondent Judge against
focus upon any relevant matter that may indicate whether respondent Clemente Ramos for legal separation, on
the proceedings for separation or annulment are fully SO ORDERED. concubinage on the respondent's part and an attempt by
justified or not. him against her life being alleged. She likewise sought the
G.R. No. L-34132 July 29, 1972 issuance of a writ of preliminary mandatory injunction for the
Article 103 of the Civil Code, now Article 58 of the Family return to her of what she claimed to be her paraphernal and
Code, further mandates that an action for legal separation exclusive property, then under the administration and
LUCY SOMOSA-RAMOS, petitioner,
must "in no case be tried before six months shall have management of respondent Clemente Ramos. There was
vs.
elapsed since the filing of the petition," obviously in order to an opposition to the hearing of such a motion, dated July 3,
THE HONORABLE CIPRIANO VAMENTA, JR.,
provide the parties a "cooling-off" period. In this interim, the 1971, based on Article 103 of the Civil Code. It was further
Presiding Judge of the Court of First Instance
manifested by him in a pleading dated July 16, 1971, that if
the motion asking for preliminary mandatory injunction were interposition of a six-month period before an action therein Article 103 (Civil Code) is evidently intended as a
heard, the prospect of the reconciliation of the spouses for legal separation is to be tried. cooling off period to make possible a reconciliation between
would become even more dim. Respondent Judge ordered the spouses. The recital of their grievances against each
the parties to submit their respective memoranda on the The court where the action is pending according to other in court may only fan their already inflamed passions
matter. Then on September 3, 1971, petitioner received an Article 103 is to remain passive. It must let the against one another, and the lawmaker has imposed the
order dated August 4, 1971 of respondent Judge granting parties alone in the meanwhile. It is precluded from period to give them opportunity for dispassionate reflection.
the motion of respondent Ramos to suspend the hearing of hearing the suit. There is then some plausibility for But this practical expedient, necessary to carry out
the petition for a writ of mandatory preliminary injunction. the view of the lower court that an ancillary motion legislative policy, does not have the effect of overriding
That is the order complained of in this petition for certiorari. such as one for preliminary mandatory injunction is other provisions such as the determination of the custody of
Respondents were required to answer according to our not to be acted on. If it were otherwise, there would the children and alimony and support pendente lite
resolution of October 5, 1971. The answer was filed be a failure to abide by the literal language of such according to the circumstance ... The law expressly enjoins
December 2 of that year. Then on January 12, 1972 came a codal provision. That the law, however, remains that these should be determined by the court according to
manifestation from parties in the case submitting the matter cognizant of the need in certain cases for judicial the circumstances. If these are ignored or the courts close
without further arguments. power to assert itself is discernible from what is set their eyes to actual facts, rank injustice may be
forth in the following article. It reads thus: "After the caused."4 At any rate, from the time of the issuance of the
After a careful consideration of the legal question presented, filing of the petition for legal separation, the spouse order complained of on August 4, 1971, more than six
it is the holding of this Court that Article 103 the Civil Code shall be entitled to live separately from each other months certainly had elapsed. Thus there can be no more
is not an absolute bar to the hearing motion for preliminary and manage their respective property. The impediment for the lower court acting on the motion of
injunction prior to the expiration of the six-month period. husband shall continue to manage the conjugal petitioner for the issuance of a writ of preliminary mandatory
partnership property but if the court deems it injunction.
1. It is understandable why there should be a period during proper, it may appoint another to manage said
which the court is precluded from acting. Ordinarily of property, in which case the administrator shall WHEREFORE, the plea of petitioner for a writ of certiorari is
course, no such delay is permissible. Justice to parties have the same rights and duties as a guardian and granted, and the order of respondent Court of August 4,
would not thereby be served. The sooner the dispute is shall not be allowed to dispose of the income or of 1971, suspending the hearing on the petition for a writ of
resolved, the better for all concerned. A suit for legal the capital except in accordance with the orders of preliminary mandatory injunction is set aside. Respondent
separation, however, is something else again. It involves a the court."2 There would appear to be then a Judge is directed to proceed without delay to hear the
relationship on which the law for the best reasons would recognition that the question of management of motion for preliminary mandatory injunction. Costs against
attach the quality of permanence. That there are times their respective property need not be left respondent Clemente G. Ramos.
when domestic felicity is much less than it ought to be is not unresolved even during such six-month period. An
of course to be denied. Grievances, whether fancied or real, administrator may even be appointed for the G.R. No. 79284 November 27, 1987
may be entertained by one or both of the spouses. There management of the property of the conjugal
may be constant bickering. The loss affection on the part of partnership. The absolute limitation from which the
FROILAN C. GANDIONCO, petitioner,
one or both may be discernible. Nonetheless, it will not court suffers under the preceding article is thereby
vs.
serve public interest, much less the welfare of the husband eased. The parties may in the meanwhile be heard.
HON. SENEN C. PEÑARANDA, as Presiding Judge of
or the wife, to allow them to go their respective ways. Where There is justification then for the petitioner's
the Regional Trial Court of Misamis Oriental, Branch 18,
there are offspring, the reason for maintaining the conjugal insistence that her motion for preliminary
Cagayan de Oro City, and TERESITA S.
union is even more imperative. It is a mark of realism of the mandatory injunction should not be ignored by the
GANDIONCO, respondents.
law that for certain cases, adultery on the part of the wife lower court. There is all the more reason for this
and concubinage on the part of the husband, or an attempt response from respondent Judge, considering that
of one spouse against the life of the other,1 it recognizes, the husband whom she accused of concubinage
albeit reluctantly, that the couple is better off apart. A suit for and an attempt against her life would in the
legal separation lies. Even then, the hope that the parties meanwhile continue in the management of what PADILLA, J.:
may settle their differences is not all together abandoned. she claimed to be her paraphernal property, an
The healing balm of time may aid in the process. Hopefully, assertion that was not specifically denied by him. A special civil action for certiorari, with application for
the guilty parties may mend his or her ways, and the What was held by this Court in Araneta v. injunction, to annul (1) the Order of the respondent Judge,
offended party may in turn exhibit magnanimity. Hence, the Concepcion,3 thus possesses relevance: "It is dated 10 December 1986, ordering petitioner to pay
conceded that the period of six months fixed support pendente lite to private respondent (his wife) and
their child, and (2) the Order of the same respondent Judge, arises from, or is inextricably tied to the criminal the amendment under the 1985 Rules on Criminal
dated 5 August 1987, denying petitioner's motion to action for concubinage, so that all proceedings Procedure, a civil action for legal separation, based on
suspend hearings in the action for legal separation filed related to legal separation will have to be concubinage, may proceed ahead of, or simultaneously with,
against him by private respondent as well as his motion to suspended to await conviction or acquittal for a criminal action for concubinage, because said civil action
inhibit respondent Judge from further hearing and trying the concubinage in the criminal case. Authority for this is not one "to enforce the civil liability arising from the
case. position is this Court's decision in the case offense" even if both the civil and criminal actions arise from
of Jerusalem vs. Hon. Roberto Zurbano. 1 or are related to the same offense. Such civil action is one
On 29 May 1986, private respondent, the legal wife of the intended to obtain the right to live separately, with the legal
petitioner, filed with the Regional Trial Court of Misamis Petitioner's contention is not correct. consequences thereof, such as, the dissolution of the
Oriental, 10th Judicial District, Branch 18, in Cagayan de conjugal partnership of gains, custody of offsprings, support,
Oro City, presided over by respondent Judge, a complaint and disqualification from inheriting from the innocent
In Jerusalem, the Court's statement to the effect
against petitioner for legal separation, on the ground of spouse, among others. As correctly pointed out by the
that suspension of an action for legal separation
concubinage, with a petition for support and payment of respondent Judge in his Order dated 5 August 1987:
would be proper if an allegation of concubinage is
damages. This case was docketed as Civil Case No. 10636. made therein, relied solely on Sec. 1 of Rule 107
On 13 October 1986, private respondent also filed with the of the then provisions of the Rules of Court on The unreported case of JERUSALEM vs. Hon. Roberto
Municipal Trial Court, General Santos City, a complaint criminal procedure, to wit: Zurbano, Judge of CFI of Antique, et al., L-11935, April 24,
against petitioner for concubinage, which was docketed on 1959 (105 Phil. 1277) is not controlling. It applied paragraph
23 October 1986 as Criminal Case No. 15437111. On 14 C of Sec. 1, of then Rule 107 of the Rules of Court, which
Sec. 1. Rules governing civil actions arising from
November 1986, application for the provisional remedy of reads:
offenses.-Except as otherwise provided by law, the
support pendente lite, pending a decision in the action for
following rules shall he observed:
legal separation, was filed by private respondent in the civil After a criminal action has been commenced, no civil action
case for legal separation. The respondent judge, as already arising from the same offense can be prosecuted and the
stated, on 10 December 1986, ordered The payment of (a) When a criminal action is instituted, the civil
same shall be suspended, in whatever stage it may be
support pendente lite. action for recovery of civil liability arising from the
found, until final judgment in the criminal proceeding has
offense charged is impliedly instituted with the
been rendered. (Emphasis supplied)
criminal action, unless the offended party
In this recourse, petitioner contends that the civil action for
expressly waives the civil action or reserves his
legal separation and the incidents consequent thereto, such The governing rule is now Sec. 3, Rule 111, 1985 Rules on
right to institute it separately;
as, application for support pendente lite, should be Criminal Procedure which refers to "civil actions to enforce
suspended in view of the criminal case for concubinage filed the civil liability arising from the offense" as contemplated in
against him the private respondent. In support of his (b) Criminal and civil actions arising from the same
the first paragraph of Section 1 of Rule 111-which is a civil
contention, petitioner cites Art. III. Sec. 3 of the 1985 Rules offense may be instituted separately, but after the
action "for recovery of civil liability arising from the offense
on Criminal Procedure, which states: criminal action has been commenced the civil
charged." Sec. 1, Rule 111, (1985) is specific that it refers to
action can not be instituted until final judgment has
civil action for the recovery of civil liability arising from the
been rendered in the criminal action;
SEC. 3. Other Civil action arising from offenses. offense charged. Whereas, the old Sec. 1 (c), Rule 107
— Whenever the offended party shall have instituted the simply referred to "Civil action arising from the offense."
civil action to enforce the civil liability arising from the (c) After a criminal action has been commenced,
offense. as contemplated in the first Section 1 hereof, the no civil action arising from the same offense can
As earlier noted this action for legal separation is not to
following rules shall be observed: be prosecuted and the same shall be suspended
recover civil liability, in the main, but is aimed at the
in whatever stage it may be found until final
conjugal rights of the spouses and their relations to each
judgment in the criminal proceeding has been
(a) After a criminal action has been commenced the other, within the contemplation of Articles 7 to 108, of the
rendered ... (Emphasis supplied)
pending civil action arising from the same offense shall be Civil Code."2
suspended, in whatever stage it may be found, until final
judgment in the criminal proceeding has been rendered. . . . The provisions last quoted did not clearly state, as
Petitioner also argues that his conviction for concubinage
the 1985 Rules do, that the civil action to be
will have to be first secured before the action for legal
suspended, with or upon the filing of a criminal
The civil action for legal separation, grounded as it is on separation can prosper or succeed, as the basis of the
action, is one which is "to enforce the civil liability
concubinage, it is petitioner's position that such civil action
arising from the offense". In other words, in view of
action for legal separation is his alleged offense of WHEREFORE, the instant petition is hereby In her answer, the private respondent opposed the
concubinage. DISMISSED. Costs against petitioner. authorization and filed a counterclaim for legal separation.
She alleged that the house in Greenhills was being
Petitioner's assumption is erroneous. SO ORDERED. occupied by her and their six children and that they were
depending for their support on the rentals from another
conjugal property, a building and lot in Forbes Park which
A decree of legal separation, on the ground of concubinage, G.R. No. 106169 February 14, 1994
was on lease to Nobumichi Izumi. She also informed the
may be issued upon proof by preponderance of evidence in
court that despite her husband's retirement, he had not
the action for legal separation. 3 No criminal proceeding or SAMSON T. SABALONES, petitioner, returned to his legitimate family and was instead
conviction is necessary. To this end, the doctrine vs. maintaining a separate residence in Don Antonio Heights,
in Francisco vs. Tayao 4 has been modified, as that case THE COURT OF APPEALS and REMEDIOS Fairview, Quezon City, with Thelma Cumareng and their
was decided under Act. No. 2710, when absolute divorce GAVIOLA-SABALONES, respondents. three children.
was then allowed and had for its grounds the same grounds
for legal separation under the New Civil Code, with the
Leven S. Puno for petitioner. In her prayer, she asked the court to grant the decree of
requirement, under such former law, that the guilt of
defendant spouses had to be established by final judgment legal separation and order the liquidation of their conjugal
in a criminal action. That requirement has not been Benigno M. Puno for private respondent. properties, with forfeiture of her husband's share therein
reproduced or adopted by the framers of the present Civil because of his adultery. She also prayed that it enjoin the
Code, and the omission has been uniformly accepted as a petitioner and his agents from a) disturbing the occupants of
modification of the stringent rule in Francisco v. Tayao.5 the Forbes Park property and b) disposing of or
encumbering any of the conjugal properties.
CRUZ, J.:
Petitioner's attempt to resist payment of support pendente
lite to his wife must also fail, as we find no proof of grave After trial, Judge Mariano M. Umali, found that the petitioner
The subject of this petition is the preliminary
abuse of discretion on the part of the respondent Judge in had indeed contracted a bigamous marriage on October 5,
injunction issued by the respondent court pending
ordering the same. Support pendente lite, as a remedy, can 1981, with Thelma Cumareng, to whom he had returned
resolution of a case on appeal. We deal only with
be availed of in an action for legal separation, and granted upon his retirement in 1985 at a separate residence. The
this matter and not the merits of the case.
at the discretion of the judge. 6 If petitioner finds the amount court thus decreed the legal separation of the spouses and
of support pendente lite ordered as too onerous, he can the forfeiture of the petitioner's share in the conjugal
As a member of our diplomatic service assigned to properties, declaring as well that he was not entitled to
always file a motion to modify or reduce the same. 7
different countries during his successive tours of support from his respondent wife.1
duties, petitioner Samson T. Sabalones left to his
Petitioner lastly seeks to have the respondent Judge wife, herein respondent Remedios
disqualified from hearing the case, as the grant of This decision was appealed to the respondent
Gaviola-Sabalones, the administration of some of
support pendente lite and the denial of the motion to court. Pendente lite, the respondent wife filed a motion for
their conjugal, properties for fifteen years.
suspend hearings in the case, are taken by the petitioner as the issuance of a writ of preliminary injunction to enjoin the
a disregard of applicable laws and existing doctrines, petitioner from interfering with the administration of their
Sabalones retired as ambassador in 1985 and properties in Greenhills and Forbes Park. She alleged inter
thereby showing the respondent Judge's alleged manifest
came back to the Philippines but not to his wife alia that he had harassed the tenant of the Forbes Park
partiality to private respondent.
and their children. Four years later, he filed an property by informing him that his lease would not be
action for judicial authorization to sell a building renewed. She also complained that the petitioner had
Petitioner's contention is without merit. Divergence of and lot located at disposed of one of their valuable conjugal properties in the
opinions between a judge hearing a case and a party's #17 Eisenhower St., Greenhills, San Juan, Metro United States in favor of his paramour, to the prejudice of
counsel, as to applicable laws and jurisprudence, is not a Manila, belonging to the conjugal partnership. He his legitimate wife and children.
sufficient ground to disqualify the judge from hearing the claimed that he was sixty-eight years old, very sick
case, on the ground of bias and manifest partiality. This is and living alone without any income, and that his
more so, in this case, where we find the judge's disposition The petitioner opposed this motion and filed his own motion
share of the proceeds of the sale to defray the
of petitioner's motions to be sound and well-taken. to prevent his wife from entering into a new contract of lease
prohibitive cost of his hospitalization and medical
over the Forbes Park property with its present tenant, or
treatment.
with future tenants, without his consent.
After hearing, the Court of Appeals, in an order dated April 7, The Court has carefully considered the issues and As observed by Francisco, "Injunction is primarily a
1992, granted the preliminary injunction prayed for by his the arguments of the parties and finds that the preventive remedy. Its province is to afford relief against
wife.2 petition has no merit. future acts which are against equity and good conscience
and to keep and preserve the thing in the status quo, rather
The petitioner now assails this order, arguing that since the We agree with the respondent court that pending than to remedy what is past or to punish for wrongful acts
law provides for a joint administration of the conjugal the appointment of an administrator over the whole already committed. It may issue to prevent future wrongs
properties by the husband and wife, no injunctive relief can mass of conjugal assets, the respondent court was although no right has yet been violated."4
be issued against one or the other because no right will be justified in allowing the wife to continue with her
violated. In support of this contention, he cites Art. 124 of administration. It was also correct, taking into The Court notes that the wife has been administering the
the Family Code, reading as follows: account the evidence adduced at the hearing, in subject properties for almost nineteen years now,
enjoining the petitioner from interfering with his apparently without complaint on the part of the petitioner.
Art. 124. The administration and enjoyment of the conjugal wife's administration pending resolution of the He has not alleged, much less shown, that her
partnership property shall belong to both spouses jointly. In appeal. administration has caused prejudice to the conjugal
case of disagreement, the husband's decision shall prevail, partnership. What he merely suggests is that the lease of
subject to recourse to the court by the wife for proper The law does indeed grant to the spouses joint the Forbes Park property could be renewed on better terms,
remedy, which must be availed of within five years from the administration over the conjugal properties as or he should at least be given his share of the rentals.
date of the contract implementing such decision. clearly provided in the above-cited Article 124 of
the Family Code. However, Article 61, also above In her motion for the issuance of a preliminary injunction,
In the event that one spouse is incapacitated or otherwise quoted, states that after a petition for legal the respondent wife alleged that the petitioner's harassment
unable to participate in the administration of the conjugal separation has been filed, the trial court shall, in of their tenant at Forbes Park
properties, the other spouse may assume sole powers of the absence of a written agreement between the would jeopardize the lease and deprive her and her children
the administration. These powers do not include disposition couple, appoint either one of the spouses or a third of the income therefrom on which they depend for their
or encumbrance without authority of the court or the written person to act as the administrator. subsistence. She also testified the numerous . . . including
consent of the other spouse. In the absence of such various dollar accounts, two houses in Quezon City and
authority or consent, the disposition or encumbrance shall While it is true that no formal designation of the Cebu City, and a Mercedes Benz. The private respondent
be void. However, the transaction shall be construed and administrator has been made, such designation also complained that on June 10, 1991, the petitioner
the third person, and may be perfected as a binding was implicit in the decision of the trial court executed a quitclaim over their conjugal property in Apple
contract upon the acceptance by the other spouse or the denying the petitioner any share in the conjugal Valley, San Bernardino, California, U.S.A., in favor of
authorization by the court before the offer is withdrawn by properties (and thus also disqualifying him as Thelma Cumareng, to improve his paramour's luxurious
either or both offerors. administrator thereof). That designation was in lifestyle to the prejudice of his legitimate family.
effect approved by the Court of Appeals when it
He further notes that the respondent court failed to appoint issued in favor of the respondent wife the These allegations, none of which was refuted by the
an administrator of the conjugal assets as mandated by Art. preliminary injunction now under challenge. husband, show that the injunction is necessary to protect
61 of the Code, thus: the interests of the private respondent and her children and
The primary purpose of the provisional remedy of prevent the dissipation of the conjugal assets.
Art. 61 After the filing of the petition for legal separation, the injunction is to preserve the status quo of the
spouses shall be entitled to live separately from each other. things subject of the action or the relations The twin requirements of a valid injunction are the existence
between the parties and thus protect the rights of of a right and its actual or threatened violation.5 Regardless
the plaintiff respecting these matters during the of the outcome of the appeal, it cannot be denied that as the
The court, in the absence of a written agreement between
pendency of the suit. Otherwise, the defendant petitioner's legitimate wife (and the complainant and injured
the spouses, shall designate either of them or a third person
may, before final judgment, do or continue doing spouse in the action for legal separation), the private
to administer the absolute community or conjugal
the act which the plaintiff asks the court to restrain respondent has a right to a share (if not the whole) of the
partnership property. The administrator appointed by the
and thus make ineffectual the final judgment that conjugal estate. There is also, in our view, enough evidence
court shall have the same powers and duties as those of a
may be rendered afterwards in favor of the to raise the apprehension that entrusting said estate to the
guardian under the Rules of Court.
plaintiff.3 petitioner may result in its improvident disposition to the
detriment of his wife and children. We agree that inasmuch
as the trial court had earlier declared the forfeiture of the
petitioner's share in the conjugal properties, it would be lived together as husband and wife continuously On 26 June 1969, counsel for deceased petitioner moved to
prudent not to allow him in the meantime to participate in its until 1943 when her husband abandoned her; that substitute the deceased Carmen by her father, Macario
management. they had no child; that they acquired properties Lapuz. Counsel for Eufemio opposed the
during their marriage; and that she discovered her motion.chanroblesvirtualawlibrarychanrobles virtual law
Let it be stressed that the injunction has not permanently husband cohabiting with a Chinese woman named library
installed the respondent wife as the administrator of the Go Hiok at 1319 Sisa Street, Manila, on or about
whole mass of conjugal assets. It has merely allowed her to March 1949. She prayed for the issuance of a On 29 July 1969, the court issued the order under review,
continue administering the properties in the meantime decree of legal separation, which, among others, dismissing the case. 2In the body of the order, the court
without interference from the petitioner, pending the would order that the defendant Eufemio S. stated that the motion to dismiss and the motion for
express designation of the administrator in accordance with Eufemio should be deprived of his share of the substitution had to be resolved on the question of whether
Article 61 of the Family Code. conjugal partnership or not the plaintiff's cause of action has survived, which the
profits.chanroblesvirtualawlibrarychanrobles virtual court resolved in the negative. Petitioner's moved to
law library reconsider but the motion was denied on 15 September
WHEREFORE, the petition is DENIED for lack of merit. It is
so ordered. 1969.chanroblesvirtualawlibrarychanrobles virtual law
In his second amended answer to the petition, library
herein respondent Eufemio S. Eufemio alleged
G.R. No. L-30977 January 31, 1972
affirmative and special defenses, and, along with After first securing an extension of time to file a petition for
several other claims involving money and other review of the order of dismissal issued by the juvenile and
CARMEN LAPUZ SY, represented by her substitute properties, counter-claimed for the declaration of domestic relations court, the petitioner filed the present
MACARIO LAPUZ, petitioner-appellant, vs. EUFEMIO S. nullity ab initio of his marriage with Carmen O. petition on 14 October 1969. The same was given due
EUFEMIO alias EUFEMIO SY UY, respondent-appellee. Lapuz Sy, on the ground of his prior and subsisting course and answer thereto was filed by respondent, who
marriage, celebrated according to Chinese law prayed for the affirmance of the said order. 3chanrobles
Jose W. Diokno for petitioner-appellant. and customs, with one Go Hiok, alias Ngo virtual law library
Hiok.chanroblesvirtualawlibrarychanrobles virtual
D. G. Eufemio for respondent-appellee. law library
Although the defendant below, the herein respondent
Eufemio S. Eufemio, filed counterclaims, he did not pursue
REYES J.B.L., J.: Issues having been joined, trial proceeded and the them after the court below dismissed the case. He
parties adduced their respective evidence. But acquiesced in the dismissal of said counterclaims by
before the trial could be completed (the praying for the affirmance of the order that dismissed not
Petition, filed after the effectivity of Republic Act 5440, for
respondent was already scheduled to present only the petition for legal separation but also his
review by certiorari of an order, dated 29 July 1969, of the
surrebuttal evidence on 9 and 18 June 1969), counterclaim to declare the Eufemio-Lapuz marriage to be
Juvenile and Domestic Relations Court of Manila, in its Civil
petitioner Carmen O. Lapuz Sy died in a vehicular null and void ab initio.chanroblesvirtualawlibrarychanrobles
Case No. 20387, dismissing said case for legal separation
accident on 31 May 1969. Counsel for petitioner virtual law library
on the ground that the death of the therein plaintiff, Carmen
duly notified the court of her
O. Lapuz Sy, which occurred during the pendency of the
death.chanroblesvirtualawlibrarychanrobles virtual
case, abated the cause of action as well as the action itself. But petitioner Carmen O. Lapuz Sy (through her
law library
The dismissal order was issued over the objection of self-assumed substitute - for the lower court did not act on
Macario Lapuz, the heir of the deceased plaintiff (and the motion for substitution) stated the principal issue to be
petitioner herein) who sought to substitute the deceased On 9 June 1969, respondent Eufemio moved to as follows:
and to have the case prosecuted to final dismiss the "petition for legal separation" 1on two
judgment.chanroblesvirtualawlibrarychanrobles virtual law (2) grounds, namely: that the petition for legal
When an action for legal separation is
library separation was filed beyond the one-year period
converted by the counterclaim into one
provided for in Article 102 of the Civil Code; and
for a declaration of nullity of a marriage,
that the death of Carmen abated the action for
On 18 August 1953, Carmen O. Lapuz Sy filed a petition for does the death of a party abate the
legal
legal separation against Eufemio S. Eufemio, alleging, in proceedings?
separation.chanroblesvirtualawlibrarychanrobles
the main, that they were married civilly on 21 September
virtual law library
1934 and canonically on 30 September 1934; that they had
The issue as framed by petitioner injects into it a supposed Marriage is a personal relation solely the effect of the decree of legal separation; hence,
conversion of a legal separation suit to one for declaration or status, created under the they can not survive the death of the plaintiff if it occurs prior
of nullity of a marriage, which is without basis, for even sanction of law, and an action to the decree. On the point, Article 106 of the Civil Code
petitioner asserted that "the respondent has acquiesced to for divorce is a proceeding provides: .
the dismissal of his counterclaim" (Petitioner's Brief, page brought for the purpose of
22). Not only this. The petition for legal separation and the effecting a dissolution of that Art. 106. The decree of legal separation
counterclaim to declare the nullity of the self same marriage relation. The action is one of a shall have the following
can stand independent and separate adjudication. They are personal nature. In the absence effects: chanrobles virtual law library
not inseparable nor was the action for legal separation of a statute to the contrary, the
converted into one for a declaration of nullity by the death of one of the parties to
(1) The spouses shall be entitled to live
counterclaim, for legal separation pre-supposes a valid such action abates the action,
separately from each other, but the
marriage, while the petition for nullity has a voidable for the reason that death has
marriage bonds shall not be
marriage as a settled the question of
severed; .chanroblesvirtualawlibrarychan
pre-condition.chanroblesvirtualawlibrarychanrobles virtual separation beyond all
robles virtual law library
law library controversy and deprived the
court of jurisdiction, both over
the persons of the parties to the (2) The conjugal partnership of gains or
The first real issue in this case is: Does the death of the
action and of the subject-matter the absolute conjugal community of
plaintiff before final decree, in an action for legal separation,
of the action itself. For this property shall be dissolved and liquidated,
abate the action? If it does, will abatement also apply if the
reason the courts are almost but the offending spouse shall have no
action involves property
unanimous in holding that the right to any share of the profits earned by
rights? .chanroblesvirtualawlibrarychanrobles virtual law
death of either party to a divorce the partnership or community, without
library
proceeding, before final decree, prejudice to the provisions of article
abates the action. 1 Corpus 176; chanrobles virtual law library
An action for legal separation which involves nothing more
Juris, 208; Wren v. Moss, 2
than the bed-and-board separation of the spouses (there
Gilman, 72; Danforth v. Danforth, (3) The custody of the minor children
being no absolute divorce in this jurisdiction) is purely
111 Ill. 236; Matter of Grandall, shall be awarded to the innocent spouse,
personal. The Civil Code of the Philippines recognizes this
196 N.Y. 127, 89 N.E. 578; 134 unless otherwise directed by the court in
in its Article 100, by allowing only the innocent spouse (and
Am St. Rep. 830; 17 Ann. Cas. the interest of said minors, for whom said
no one else) to claim legal separation; and in its Article 108,
874; Wilcon v. Wilson, 73 Mich, court may appoint a guardian; chanrobles
by providing that the spouses can, by their reconciliation,
620, 41 N.W. 817; Strickland v. virtual law library
stop or abate the proceedings and even rescind a decree of
Strickland, 80 Ark. 452, 97 S. W.
legal separation already rendered. Being personal in
659; McCurley v. McCurley, 60 (4) The offending spouse shall be
character, it follows that the death of one party to the action
Md. 185, 45 Am. Rep. 717; disqualified from inheriting from the
causes the death of the action itself - actio personalis
Begbie v. Begbie, 128 Cal. 155, innocent spouse by intestate succession.
moritur cum persona.
60 Pac. 667, 49 L.R.A. Moreover, provisions in favor of the
141. 5chanrobles virtual law offending spouse made in the will of the
... When one of the spouses is dead, library innocent one shall be revoked by
there is no need for divorce, because the
operation of law.
marriage is dissolved. The heirs cannot
The same rule is true of causes of action and suits
even continue the suit, if the death of the
for separation and maintenance (Johnson vs. From this article it is apparent that the right to the
spouse takes place during the course of
Bates, Ark. 101 SW 412; 1 Corpus Juris dissolution of the conjugal partnership of gains (or of the
the suit (Article 244, Section 3). The
208).chanroblesvirtualawlibrarychanrobles virtual absolute community of property), the loss of right by the
action is absolutely dead (Cass., July 27,
law library offending spouse to any share of the profits earned by the
1871, D. 71. 1. 81; Cass. req., May 8,
1933, D. H. 1933, partnership or community, or his disqualification to inherit by
332.") 4 .chanroblesvirtualawlibrarychanro A review of the resulting changes in property intestacy from the innocent spouse as well as the
bles virtual law library relations between spouses shows that they are revocation of testamentary provisions in favor of the
offending spouse made by the innocent one, are all rights the decree such rights do not come into existence, ACCORDINGLY, the appealed judgment of the Manila
and disabilities that, by the very terms of the Civil Code so that before the finality of a decree, these claims Court of Juvenile and Domestic Relations is hereby affirmed.
article, are vested exclusively in the persons of the spouses; are merely rights in expectation. If death No special pronouncement as to costs.
and by their nature and intent, such claims and disabilities supervenes during the pendency of the action, no
are difficult to conceive as assignable or transmissible. decree can be forthcoming, death producing a Republic Act No. 9262 March 08, 2004
Hence, a claim to said rights is not a claim that "is not more radical and definitive separation; and the
thereby extinguished" after a party dies, under Section 17, expected consequential rights and claims would
AN ACT DEFINING VIOLENCE AGAINST WOMEN AND
Rule 3, of the Rules of Court, to warrant continuation of the necessarily remain
THEIR CHILDREN, PROVIDING FOR PROTECTIVE
action through a substitute of the deceased party. unborn.chanroblesvirtualawlibrarychanrobles
MEASURES FOR VICTIMS, PRESCRIBING PENALTIES
virtual law library
THEREFORE, AND FOR OTHER PURPOSES
Sec. 17. Death of party. After a party dies
and the claim is not thereby extinguished, As to the petition of respondent-appellee Eufemio
Be it enacted by the Senate and House of Representatives
the court shall order, upon proper notice, for a declaration of nullity ab initio of his marriage
of the Philippine Congress Assembled:
the legal representative of the deceased to Carmen Lapuz, it is apparent that such action
to appear and to be substituted for the became moot and academic upon the death of the
deceased, within a period of thirty (30) latter, and there could be no further interest in SECTION 1. Short Title.- This Act shall be known as the
days, or within such time as may be continuing the same after her demise, that "Anti-Violence Against Women and Their Children Act of
granted... automatically dissolved the questioned union. Any 2004".
property rights acquired by either party as a result
The same result flows from a consideration of the of Article 144 of the Civil Code of the Philippines 6 SECTION 2. Declaration of Policy.- It is hereby declared
enumeration of the actions that survive for or against could be resolved and determined in a proper that the State values the dignity of women and children and
administrators in Section 1, Rule 87, of the Revised Rules action for partition by either the appellee or by the guarantees full respect for human rights. The State also
of Court: heirs of the recognizes the need to protect the family and its members
appellant.chanroblesvirtualawlibrarychanrobles particularly women and children, from violence and threats
virtual law library to their personal safety and security.
SECTION 1. Actions which may and
which may not be brought against
executor or administrator. No action upon In fact, even if the bigamous marriage had not Towards this end, the State shall exert efforts to address
a claim for the recovery of money or debt been void ab initio but only voidable under Article violence committed against women and children in keeping
or interest thereon shall be commenced 83, paragraph 2, of the Civil Code, because the with the fundamental freedoms guaranteed under the
against the executor or administrator; but second marriage had been contracted with the first Constitution and the Provisions of the Universal Declaration
actions to recover real or personal wife having been an absentee for seven of Human Rights, the convention on the Elimination of all
property, or an interest therein, from the consecutive years, or when she had been forms of discrimination Against Women, Convention on the
estate, or to enforce a lien thereon, and generally believed dead, still the action for Rights of the Child and other international human rights
actions to recover damages for an injury annulment became extinguished as soon as one of instruments of which the Philippines is a party.
to person or property, real or personal, the three persons involved had died, as provided
may be commenced against him. in Article 87, paragraph 2, of the Code, requiring SECTION 3. Definition of Terms.- As used in this Act,
that the action for annulment should be brought
during the lifetime of any one of the parties
Neither actions for legal separation or for annulment of (a) "Violence against women and their children" refers to
involved. And furthermore, the liquidation of any
marriage can be deemed fairly included in the any act or a series of acts committed by any person against
conjugal partnership that might have resulted from
enumeration..chanroblesvirtualawlibrarychanrobles virtual a woman who is his wife, former wife, or against a woman
such voidable marriage must be carried out "in the
law library with whom the person has or had a sexual or dating
testate or intestate proceedings of the deceased
relationship, or with whom he has a common child, or
spouse", as expressly provided in Section 2 of the
A further reason why an action for legal separation is against her child whether legitimate or illegitimate, within or
Revised Rule 73, and not in the annulment
abated by the death of the plaintiff, even if property rights without the family abode, which result in or is likely to result
proceeding.chanroblesvirtualawlibrarychanrobles
are involved, is that these rights are mere effects of decree in physical, sexual, psychological harm or suffering, or
virtual law library
of separation, their source being the decree itself; without economic abuse including threats of such acts, battery,
assault, coercion, harassment or arbitrary deprivation of spouse/partner objects on valid, serious and moral (g) "Safe place or shelter" refers to any home or institution
liberty. It includes, but is not limited to, the following acts: grounds as defined in Article 73 of the Family maintained or managed by the Department of Social
Code; Welfare and Development (DSWD) or by any other agency
A. "Physical Violence" refers to acts that include bodily or or voluntary organization accredited by the DSWD for the
physical harm; 2. deprivation or threat of deprivation of financial purposes of this Act or any other suitable place the resident
resources and the right to the use and enjoyment of which is willing temporarily to receive the victim.
B. "Sexual violence" refers to an act which is sexual in of the conjugal, community or property owned in
nature, committed against a woman or her child. It includes, common; (h) "Children" refers to those below eighteen (18) years of
but is not limited to: age or older but are incapable of taking care of themselves
3. destroying household property; as defined under Republic Act No. 7610. As used in this Act,
it includes the biological children of the victim and other
a) rape, sexual harassment, acts of lasciviousness, treating
children under her care.
a woman or her child as a sex object, making demeaning 4. controlling the victims' own money or properties
and sexually suggestive remarks, physically attacking the or solely controlling the conjugal money or
sexual parts of the victim's body, forcing her/him to watch properties. SECTION 4. Construction.- This Act shall be liberally
obscene publications and indecent shows or forcing the construed to promote the protection and safety of victims of
woman or her child to do indecent acts and/or make films violence against women and their children.
(b) "Battery" refers to an act of inflicting physical
thereof, forcing the wife and mistress/lover to live in the harm upon the woman or her child resulting to the
conjugal home or sleep together in the same room with the physical and psychological or emotional distress. SECTION 5. Acts of Violence Against Women and Their
abuser; Children.- The crime of violence against women and their
children is committed through any of the following acts:
(c) "Battered Woman Syndrome" refers to a
b) acts causing or attempting to cause the victim to engage scientifically defined pattern of psychological and
in any sexual activity by force, threat of force, physical or behavioral symptoms found in women living in (a) Causing physical harm to the woman or her child;
other harm or threat of physical or other harm or coercion; battering relationships as a result of cumulative
abuse. (b) Threatening to cause the woman or her child physical
c) Prostituting the woman or child. harm;
(d) "Stalking" refers to an intentional act committed
C. "Psychological violence" refers to acts or omissions by a person who, knowingly and without lawful (c) Attempting to cause the woman or her child physical
causing or likely to cause mental or emotional suffering of justification follows the woman or her child or harm;
the victim such as but not limited to intimidation, places the woman or her child under surveillance
harassment, stalking, damage to property, public ridicule or directly or indirectly or a combination thereof. (d) Placing the woman or her child in fear of imminent
humiliation, repeated verbal abuse and mental infidelity. It physical harm;
includes causing or allowing the victim to witness the (e) "Dating relationship" refers to a situation
physical, sexual or psychological abuse of a member of the wherein the parties live as husband and wife (e) Attempting to compel or compelling the woman or her
family to which the victim belongs, or to witness without the benefit of marriage or are romantically child to engage in conduct which the woman or her child
pornography in any form or to witness abusive injury to pets involved over time and on a continuing basis has the right to desist from or desist from conduct which the
or to unlawful or unwanted deprivation of the right to during the course of the relationship. A casual woman or her child has the right to engage in, or attempting
custody and/or visitation of common children. acquaintance or ordinary socialization between to restrict or restricting the woman's or her child's freedom
two individuals in a business or social context is of movement or conduct by force or threat of force, physical
D. "Economic abuse" refers to acts that make or attempt to not a dating relationship. or other harm or threat of physical or other harm, or
make a woman financially dependent which includes, but is intimidation directed against the woman or child. This shall
not limited to the following: (f) "Sexual relations" refers to a single sexual act include, but not limited to, the following acts committed with
which may or may not result in the bearing of a the purpose or effect of controlling or restricting the
1. withdrawal of financial support or preventing the victim common child. woman's or her child's movement or conduct:
from engaging in any legitimate profession, occupation,
business or activity, except in cases wherein the other
(1) Threatening to deprive or actually depriving the woman (i) Causing mental or emotional anguish, public (f) Acts falling under Section 5(h) and Section 5(i) shall be
or her child of custody to her/his family; ridicule or humiliation to the woman or her child, punished by prision mayor.
including, but not limited to, repeated verbal and
(2) Depriving or threatening to deprive the woman or her emotional abuse, and denial of financial support or If the acts are committed while the woman or child is
children of financial support legally due her or her family, or custody of minor children of access to the woman's pregnant or committed in the presence of her child, the
deliberately providing the woman's children insufficient child/children. penalty to be applied shall be the maximum period of
financial support; penalty prescribed in the section.
SECTION 6. Penalties.- The crime of violence
(3) Depriving or threatening to deprive the woman or her against women and their children, under Section 5 In addition to imprisonment, the perpetrator shall (a) pay a
child of a legal right; hereof shall be punished according to the following fine in the amount of not less than One hundred thousand
rules: pesos (P100,000.00) but not more than three hundred
(4) Preventing the woman in engaging in any legitimate thousand pesos (300,000.00); (b) undergo mandatory
profession, occupation, business or activity or controlling (a) Acts falling under Section 5(a) constituting psychological counseling or psychiatric treatment and shall
the victim's own mon4ey or properties, or solely controlling attempted, frustrated or consummated parricide or report compliance to the court.
the conjugal or common money, or properties; murder or homicide shall be punished in
accordance with the provisions of the Revised SECTION 7. Venue.- The Regional Trial Court designated
Penal Code. as a Family Court shall have original and exclusive
(f) Inflicting or threatening to inflict physical harm on oneself
for the purpose of controlling her actions or decisions; jurisdiction over cases of violence against women and their
If these acts resulted in mutilation, it shall be children under this law. In the absence of such court in the
punishable in accordance with the Revised Penal place where the offense was committed, the case shall be
(g) Causing or attempting to cause the woman or her child
Code; those constituting serious physical injuries filed in the Regional Trial Court where the crime or any of its
to engage in any sexual activity which does not constitute
shall have the penalty of prison mayor; those elements was committed at the option of the compliant.
rape, by force or threat of force, physical harm, or through
constituting less serious physical injuries shall be
intimidation directed against the woman or her child or
punished by prision correccional; and those SECTION 8. Protection Orders.- A protection order is an
her/his immediate family;
constituting slight physical injuries shall be order issued under this act for the purpose of preventing
punished by arresto mayor. further acts of violence against a woman or her child
(h) Engaging in purposeful, knowing, or reckless conduct,
specified in Section 5 of this Act and granting other
personally or through another, that alarms or causes
Acts falling under Section 5(b) shall be punished necessary relief. The relief granted under a protection order
substantial emotional or psychological distress to the
by imprisonment of two degrees lower than the serve the purpose of safeguarding the victim from further
woman or her child. This shall include, but not be limited to,
prescribed penalty for the consummated crime as harm, minimizing any disruption in the victim's daily life, and
the following acts:
specified in the preceding paragraph but shall in facilitating the opportunity and ability of the victim to
no case be lower than arresto mayor. independently regain control over her life. The provisions of
(1) Stalking or following the woman or her child in public or the protection order shall be enforced by law enforcement
private places; agencies. The protection orders that may be issued under
(b) Acts falling under Section 5(c) and 5(d) shall be
punished by arresto mayor; this Act are the barangay protection order (BPO), temporary
(2) Peering in the window or lingering outside the residence protection order (TPO) and permanent protection order
of the woman or her child; (PPO). The protection orders that may be issued under this
(c) Acts falling under Section 5(e) shall be
Act shall include any, some or all of the following reliefs:
punished by prision correccional;
(3) Entering or remaining in the dwelling or on the property
of the woman or her child against her/his will; (a) Prohibition of the respondent from threatening to commit
(d) Acts falling under Section 5(f) shall be
or committing, personally or through another, any of the
punished by arresto mayor;
(4) Destroying the property and personal belongings or acts mentioned in Section 5 of this Act;
inflicting harm to animals or pets of the woman or her child;
(e) Acts falling under Section 5(g) shall be
and (b) Prohibition of the respondent from harassing, annoying,
punished by prision mayor;
telephoning, contacting or otherwise communicating with
(5) Engaging in any form of harassment or violence; the petitioner, directly or indirectly;
(c) Removal and exclusion of the respondent from the direct the appropriate authority to investigate on (f) Punong Barangay or Barangay Kagawad;
residence of the petitioner, regardless of ownership of the the offender and take appropriate action on matter;
residence, either temporarily for the purpose of protecting (g) lawyer, counselor, therapist or healthcare provider of the
the petitioner, or permanently where no property rights are (i) Restitution for actual damages caused by the petitioner;
violated, and if respondent must remove personal effects violence inflicted, including, but not limited to,
from the residence, the court shall direct a law enforcement property damage, medical expenses, childcare (h) At least two (2) concerned responsible citizens of the
agent to accompany the respondent has gathered his things expenses and loss of income; city or municipality where the violence against women and
and escort respondent from the residence;
their children occurred and who has personal knowledge of
(j) Directing the DSWD or any appropriate agency the offense committed.
(d) Directing the respondent to stay away from petitioner to provide petitioner may need; and
and designated family or household member at a distance
SECTION 10. Where to Apply for a Protection Order. –
specified by the court, and to stay away from the residence,
(k) Provision of such other forms of relief as the Applications for BPOs shall follow the rules on venue under
school, place of employment, or any specified place
court deems necessary to protect and provide for Section 409 of the Local Government Code of 1991 and its
frequented by the petitioner and any designated family or
the safety of the petitioner and any designated implementing rules and regulations. An application for a
household member;
family or household member, provided petitioner TPO or PPO may be filed in the regional trial court,
and any designated family or household member metropolitan trial court, municipal trial court, municipal
(e) Directing lawful possession and use by petitioner of an consents to such relief. circuit trial court with territorial jurisdiction over the place of
automobile and other essential personal effects, regardless residence of the petitioner: Provided, however, That if a
of ownership, and directing the appropriate law enforcement family court exists in the place of residence of the petitioner,
Any of the reliefs provided under this section shall
officer to accompany the petitioner to the residence of the the application shall be filed with that court.
be granted even in the absence of a decree of
parties to ensure that the petitioner is safely restored to the
legal separation or annulment or declaration of
possession of the automobile and other essential personal
absolute nullity of marriage. SECTION 11. How to Apply for a Protection Order. – The
effects, or to supervise the petitioner's or respondent's
application for a protection order must be in writing, signed
removal of personal belongings;
The issuance of a BPO or the pendency of an and verified under oath by the applicant. It may be filed as
application for BPO shall not preclude a petitioner an independent action or as incidental relief in any civil or
(f) Granting a temporary or permanent custody of a criminal case the subject matter or issues thereof partakes
from applying for, or the court from granting a TPO
child/children to the petitioner; of a violence as described in this Act. A standard protection
or PPO.
order application form, written in English with translation to
(g) Directing the respondent to provide support to the the major local languages, shall be made available to
SECTION 9. Who may file Petition for Protection
woman and/or her child if entitled to legal support. facilitate applications for protections order, and shall contain,
Orders. – A petition for protection order may be
Notwithstanding other laws to the contrary, the court shall among other, the following information:
filed by any of the following:
order an appropriate percentage of the income or salary of
the respondent to be withheld regularly by the respondent's (a) names and addresses of petitioner and respondent;
employer for the same to be automatically remitted directly (a) the offended party;
to the woman. Failure to remit and/or withhold or any delay
(b) description of relationships between petitioner and
in the remittance of support to the woman and/or her child (b) parents or guardians of the offended party;
respondent;
without justifiable cause shall render the respondent or his
employer liable for indirect contempt of court; (c) ascendants, descendants or collateral relatives
(c) a statement of the circumstances of the abuse;
within the fourth civil degree of consanguinity or
(h) Prohibition of the respondent from any use or affinity;
possession of any firearm or deadly weapon and order him (d) description of the reliefs requested by petitioner as
to surrender the same to the court for appropriate specified in Section 8 herein;
(d) officers or social workers of the DSWD or social
disposition by the court, including revocation of license and workers of local government units (LGUs);
disqualification to apply for any license to use or possess a (e) request for counsel and reasons for such;
firearm. If the offender is a law enforcement agent, the court
(e) police officers, preferably those in charge of
shall order the offender to surrender his firearm and shall (f) request for waiver of application fees until hearing; and
women and children's desks;
(g) an attestation that there is no pending application for a SECTION 14. Barangay Protection Orders (BPOs); protection order issued by the court after notice and
protection order in another court. Who May Issue and How. - Barangay Protection hearing.
Orders (BPOs) refer to the protection order issued
If the applicants is not the victim, the application must be by the Punong Barangay ordering the perpetrator Respondents non-appearance despite proper notice, or his
accompanied by an affidavit of the applicant attesting to (a) to desist from committing acts under Section 5 (a) lack of a lawyer, or the non-availability of his lawyer shall
the circumstances of the abuse suffered by the victim and and (b) of this Act. A Punong Barangay who not be a ground for rescheduling or postponing the hearing
(b) the circumstances of consent given by the victim for the receives applications for a BPO shall issue the on the merits of the issuance of a PPO. If the respondents
filling of the application. When disclosure of the address of protection order to the applicant on the date of appears without counsel on the date of the hearing on the
the victim will pose danger to her life, it shall be so stated in filing after ex parte determination of the basis of PPO, the court shall appoint a lawyer for the respondent
the application. In such a case, the applicant shall attest the application. If the Punong Barangay is and immediately proceed with the hearing. In case the
that the victim is residing in the municipality or city over unavailable to act on the application for a BPO, the respondent fails to appear despite proper notice, the court
which court has territorial jurisdiction, and shall provide a application shall be acted upon by any shall allow ex parte presentation of the evidence by the
mailing address for purpose of service processing. available Barangay Kagawad. If the BPO is issued applicant and render judgment on the basis of the evidence
by a Barangay Kagawad the order must be presented. The court shall allow the introduction of any
accompanied by an attestation by the Barangay history of abusive conduct of a respondent even if the same
An application for protection order filed with a court shall be
Kagawad that the Punong Barangay was was not directed against the applicant or the person for
considered an application for both a TPO and PPO.
unavailable at the time for the issuance of the BPO. whom the applicant is made.
BPOs shall be effective for fifteen (15) days.
Barangay officials and court personnel shall assist Immediately after the issuance of an ex parte BPO,
applicants in the preparation of the application. Law The court shall, to the extent possible, conduct the hearing
the Punong Barangay or Barangay Kagawad shall
enforcement agents shall also extend assistance in the on the merits of the issuance of a PPO in one (1) day.
personally serve a copy of the same on the
application for protection orders in cases brought to their Where the court is unable to conduct the hearing within one
respondent, or direct any barangay official to effect
attention. (1) day and the TPO issued is due to expire, the court shall
is personal service.
continuously extend or renew the TPO for a period of thirty
(30) days at each particular time until final judgment is
SECTION 12. Enforceability of Protection Orders. – All The parties may be accompanied by a non-lawyer issued. The extended or renewed TPO may be modified by
TPOs and PPOs issued under this Act shall be enforceable advocate in any proceeding before the Punong the court as may be necessary or applicable to address the
anywhere in the Philippines and a violation thereof shall be Barangay. needs of the applicant.
punishable with a fine ranging from Five Thousand Pesos
(P5,000.00) to Fifty Thousand Pesos (P50,000.00) and/or
SECTION 15. Temporary Protection Orders. The court may grant any, some or all of the reliefs specified
imprisonment of six (6) months.
– Temporary Protection Orders (TPOs) refers to in Section 8 hereof in a PPO. A PPO shall be effective until
the protection order issued by the court on the date revoked by a court upon application of the person in whose
SECTION 13. Legal Representation of Petitioners for of filing of the application after ex favor the order was issued. The court shall ensure
Protection Order. – If the woman or her child requests in the parte determination that such order should be immediate personal service of the PPO on respondent.
applications for a protection order for the appointment of issued. A court may grant in a TPO any, some or
counsel because of lack of economic means to hire a all of the reliefs mentioned in this Act and shall be
counsel de parte, the court shall immediately direct the The court shall not deny the issuance of protection order on
effective for thirty (30) days. The court shall
Public Attorney's Office (PAO) to represent the petitioner in the basis of the lapse of time between the act of violence
schedule a hearing on the issuance of a PPO prior
the hearing on the application. If the PAO determines that and the filing of the application.
to or on the date of the expiration of the TPO. The
the applicant can afford to hire the services of a counsel de court shall order the immediate personal service of
parte, it shall facilitate the legal representation of the the TPO on the respondent by the court sheriff Regardless of the conviction or acquittal of the respondent,
petitioner by a counsel de parte. The lack of access to who may obtain the assistance of law enforcement the Court must determine whether or not the PPO shall
family or conjugal resources by the applicant, such as when agents for the service. The TPO shall include become final. Even in a dismissal, a PPO shall be granted
the same are controlled by the perpetrator, shall qualify the notice of the date of the hearing on the merits of as long as there is no clear showing that the act from which
petitioner to legal representation by the PAO. the issuance of a PPO. the order might arise did not exist.

However, a private counsel offering free legal service is not SECTION 16. Permanent Protection Orders. – SECTION 17. Notice of Sanction in Protection Orders. –
barred from representing the petitioner. Permanent Protection Order (PPO) refers to The following statement must be printed in bold-faced type
or in capital letters on the protection order issued by Rule 71 of the Rules of Court, without prejudice to elements for justifying circumstances of self-defense under
the Punong Barangay or court: any other criminal or civil action that the offended the Revised Penal Code.
party may file for any of the acts committed.
"VIOLATION OF THIS ORDER IS PUNISHABLE BY In the determination of the state of mind of the woman who
LAW." SECTION 22. Applicability of Protection Orders to was suffering from battered woman syndrome at the time of
Criminal Cases. – The foregoing provisions on the commission of the crime, the courts shall be assisted by
SECTION 18. Mandatory Period For Acting on Applications protection orders shall be applicable in impliedly expert psychiatrists/ psychologists.
For Protection Orders – Failure to act on an application for a instituted with the criminal actions involving
protection order within the reglementary period specified in violence against women and their children. SECTION 27. Prohibited Defense. – Being under the
the previous section without justifiable cause shall render influence of alcohol, any illicit drug, or any other
the official or judge administratively liable. SECTION 23. Bond to Keep the Peace. – The mind-altering substance shall not be a defense under this
Court may order any person against whom a Act.
SECTION 19. Legal Separation Cases. – In cases of legal protection order is issued to give a bond to keep
separation, where violence as specified in this Act is alleged, the peace, to present two sufficient sureties who SECTION 28. Custody of children. – The woman victim of
Article 58 of the Family Code shall not apply. The court shall shall undertake that such person will not commit violence shall be entitled to the custody and support of her
proceed on the main case and other incidents of the case the violence sought to be prevented. child/children. Children below seven (7) years old older but
as soon as possible. The hearing on any application for a with mental or physical disabilities shall automatically be
protection order filed by the petitioner must be conducted Should the respondent fail to give the bond as given to the mother, with right to support, unless the court
within the mandatory period specified in this Act. required, he shall be detained for a period which finds compelling reasons to order otherwise.
shall in no case exceed six (6) months, if he shall
SECTION 20. Priority of Application for a Protection have been prosecuted for acts punishable under A victim who is suffering from battered woman syndrome
Order. – Ex parte and adversarial hearings to determine the Section 5(a) to 5(f) and not exceeding thirty (30) shall not be disqualified from having custody of her children.
basis of applications for a protection order under this Act days, if for acts punishable under Section 5(g) to In no case shall custody of minor children be given to the
shall have priority over all other proceedings. Barangay 5(I). perpetrator of a woman who is suffering from Battered
officials and the courts shall schedule and conduct hearings woman syndrome.
on applications for a protection order under this Act above The protection orders referred to in this section are
all other business and, if necessary, suspend other the TPOs and the PPOs issued only by the courts. SECTION 29. Duties of Prosecutors/Court Personnel. –
proceedings in order to hear applications for a protection Prosecutors and court personnel should observe the
order. SECTION 24. Prescriptive Period. – Acts falling following duties when dealing with victims under this Act:
under Sections 5(a) to 5(f) shall prescribe in twenty
SECTION 21. Violation of Protection Orders. – A complaint (20) years. Acts falling under Sections 5(g) to 5(I) a) communicate with the victim in a language understood by
for a violation of a BPO issued under this Act must be filed shall prescribe in ten (10) years. the woman or her child; and
directly with any municipal trial court, metropolitan trial court,
or municipal circuit trial court that has territorial jurisdiction SECTION 25. Public Crime. – Violence against b) inform the victim of her/his rights including legal remedies
over the barangay that issued the BPO. Violation of a BPO women and their children shall be considered a available and procedure, and privileges for indigent litigants.
shall be punishable by imprisonment of thirty (30) days public offense which may be prosecuted upon the
without prejudice to any other criminal or civil action that the filing of a complaint by any citizen having personal
offended party may file for any of the acts committed. SECTION 30. Duties of Barangay Officials and Law
knowledge of the circumstances involving the
Enforcers. – Barangay officials and law enforcers shall have
commission of the crime.
the following duties:
A judgement of violation of a BPO ma be appealed
according to the Rules of Court. During trial and upon SECTION 26. Battered Woman Syndrome as a
judgment, the trial court may motu proprio issue a protection (a) respond immediately to a call for help or request for
Defense. – Victim-survivors who are found by the
order as it deems necessary without need of an application. assistance or protection of the victim by entering the
courts to be suffering from battered woman
necessary whether or not a protection order has been
syndrome do not incur any criminal and civil
issued and ensure the safety of the victim/s;
Violation of any provision of a TPO or PPO issued under liability notwithstanding the absence of any of the
this Act shall constitute contempt of court punishable under
(b) confiscate any deadly weapon in the possession of the (d) safeguard the records and make them criminal, civil or administrative liability resulting therefrom.
perpetrator or within plain view; available to the victim upon request at actual cost;
and SECTION 35. Rights of Victims. – In addition to their rights
(c) transport or escort the victim/s to a safe place of their under existing laws, victims of violence against women and
choice or to a clinic or hospital; (e) provide the victim immediate and adequate their children shall have the following rights:
notice of rights and remedies provided under this
(d) assist the victim in removing personal belongs from the Act, and services available to them. (a) to be treated with respect and dignity;
house;
SECTION 32. Duties of Other Government (b) to avail of legal assistance form the PAO of the
(e) assist the barangay officials and other government Agencies and LGUs – Other government agencies Department of Justice (DOJ) or any public legal assistance
officers and employees who respond to a call for help; and LGUs shall establish programs such as, but office;
not limited to, education and information campaign
and seminars or symposia on the nature, causes,
(f) ensure the enforcement of the Protection Orders issued (c) To be entitled to support services form the DSWD and
incidence and consequences of such violence
by the Punong Barangy or the courts; LGUs'
particularly towards educating the public on its
social impacts.
(g) arrest the suspected perpetrator wiithout a warrant when (d) To be entitled to all legal remedies and support as
any of the acts of violence defined by this Act is occurring, provided for under the Family Code; and
It shall be the duty of the concerned government
or when he/she has personal knowledge that any act of
agencies and LGU's to ensure the sustained
abuse has just been committed, and there is imminent (e) To be informed of their rights and the services available
education and training of their officers and
danger to the life or limb of the victim as defined in this Act; to them including their right to apply for a protection order.
personnel on the prevention of violence against
and
women and their children under the Act.
SECTION 36. Damages. – Any victim of violence under this
(h) immediately report the call for assessment or assistance Act shall be entitled to actual, compensatory, moral and
SECTION 33. Prohibited Acts. – A Punong
of the DSWD, social Welfare Department of LGUs or exemplary damages.
Barangay, Barangay Kagawad or the court hearing
accredited non-government organizations (NGOs).
an application for a protection order shall not order,
direct, force or in any way unduly influence he SECTION 37. Hold Departure Order. – The court shall
Any barangay official or law enforcer who fails to report the applicant for a protection order to compromise or expedite the process of issuance of a hold departure order
incident shall be liable for a fine not exceeding Ten abandon any of the reliefs sought in the application in cases prosecuted under this Act.
Thousand Pesos (P10,000.00) or whenever applicable for protection under this Act. Section 7 of the
criminal, civil or administrative liability. Family Courts Act of 1997 and Sections 410, 411, SECTION 38. Exemption from Payment of Docket Fee and
412 and 413 of the Local Government Code of Other Expenses. – If the victim is an indigent or there is an
SECTION 31. Healthcare Provider Response to Abuse – 1991 shall not apply in proceedings where relief is immediate necessity due to imminent danger or threat of
Any healthcare provider, including, but not limited to, an sought under this Act. danger to act on an application for a protection order, the
attending physician, nurse, clinician, barangay health court shall accept the application without payment of the
worker, therapist or counselor who suspects abuse or has Failure to comply with this Section shall render the filing fee and other fees and of transcript of stenographic
been informed by the victim of violence shall: official or judge administratively liable. notes.

(a) properly document any of the victim's physical, SECTION 34. Persons Intervening Exempt from SECTION 39. Inter-Agency Council on Violence Against
emotional or psychological injuries; Liability. – In every case of violence against Women and Their Children (IAC-VAWC). In pursuance of
women and their children as herein defined, any the abovementioned policy, there is hereby established an
(b) properly record any of victim's suspicions, observations person, private individual or police authority or Inter-Agency Council on Violence Against Women and their
and circumstances of the examination or visit; barangay official who, acting in accordance with children, hereinafter known as the Council, which shall be
law, responds or intervenes without using violence composed of the following agencies:
(c) automatically provide the victim free of charge a medical or restraint greater than necessary to ensure the
certificate concerning the examination or visit; safety of the victim, shall not be liable for any
(a) Department of Social Welfare and Development temporary shelters, provide counseling, them to properly handle cases of violence against women
(DSWD); psycho-social services and /or, recovery, and their children.
rehabilitation programs and livelihood assistance.
(b) National Commission on the Role of Filipino Women SECTION 43. Entitled to Leave. – Victims under this Act
(NCRFW); The DOH shall provide medical assistance to shall be entitled to take a paid leave of absence up to ten
victims. (10) days in addition to other paid leaves under the Labor
(c) Civil Service Commission (CSC); Code and Civil Service Rules and Regulations, extendible
SECTION 41. Counseling and Treatment of when the necessity arises as specified in the protection
Offenders. – The DSWD shall provide order.
(d) Commission on Human rights (CHR)
rehabilitative counseling and treatment to
perpetrators towards learning constructive ways of Any employer who shall prejudice the right of the person
(e) Council for the Welfare of Children (CWC);
coping with anger and emotional outbursts and under this section shall be penalized in accordance with the
reforming their ways. When necessary, the provisions of the Labor Code and Civil Service Rules and
(f) Department of Justice (DOJ); offender shall be ordered by the Court to submit to Regulations. Likewise, an employer who shall prejudice any
psychiatric treatment or confinement. person for assisting a co-employee who is a victim under
(g) Department of the Interior and Local Government this Act shall likewise be liable for discrimination.
(DILG); SECTION 42. Training of Persons Involved in
Responding to Violence Against Women and their SECTION 44. Confidentiality. – All records pertaining to
(h) Philippine National Police (PNP); Children Cases. – All agencies involved in cases of violence against women and their children
responding to violence against women and their including those in the barangay shall be confidential and all
(i) Department of Health (DOH); children cases shall be required to undergo public officers and employees and public or private clinics to
education and training to acquaint them with: hospitals shall respect the right to privacy of the victim.
Whoever publishes or causes to be published, in any format,
(j) Department of Education (DepEd);
a. the nature, extend and causes of violence the name, address, telephone number, school, business
against women and their children; address, employer, or other identifying information of a
(k) Department of Labor and Employment (DOLE); and victim or an immediate family member, without the latter's
consent, shall be liable to the contempt power of the court.
b. the legal rights of, and remedies available to,
(l) National Bureau of Investigation (NBI).
victims of violence against women and their
children; Any person who violates this provision shall suffer the
These agencies are tasked to formulate programs and penalty of one (1) year imprisonment and a fine of not more
projects to eliminate VAW based on their mandates as well than Five Hundred Thousand pesos (P500,000.00).
c. the services and facilities available to victims or
as develop capability programs for their employees to
survivors;
become more sensitive to the needs of their clients. The SECTION 45. Funding – The amount necessary to
Council will also serve as the monitoring body as regards to implement the provisions of this Act shall be included in the
VAW initiatives. d. the legal duties imposed on police officers to
annual General Appropriations Act (GAA).
make arrest and to offer protection and assistance;
and
The Council members may designate their duly authorized The Gender and Development (GAD) Budget of the
representative who shall have a rank not lower than an mandated agencies and LGU's shall be used to implement
assistant secretary or its equivalent. These representatives e. techniques for handling incidents of violence
services for victim of violence against women and their
shall attend Council meetings in their behalf, and shall against women and their children that minimize the
children.
receive emoluments as may be determined by the Council likelihood of injury to the officer and promote the
in accordance with existing budget and accounting rules safety of the victim or survivor.
SECTION 46. Implementing Rules and Regulations. –
and regulations.
Within six (6) months from the approval of this Act, the DOJ,
The PNP, in coordination with LGU's shall
the NCRFW, the DSWD, the DILG, the DOH, and the PNP,
SECTION 40. Mandatory Programs and Services for establish an education and training program for
and three (3) representatives from NGOs to be identified by
Victims. – The DSWD, and LGU's shall provide the victims police officers and barangay officials to enable
the NCRFW, shall promulgate the Implementing Rules and ANTONIO MACADANGDANG, Petitioner, left for Cebu for good. When she returned to Davao in 1971,
Regulations (IRR) of this Act. vs. THE COURT OF APPEALS; HONORABLE she learned of the illicit affairs of her estranged husband.
ALEJANDRO E. SEBASTIAN, in his capacity as Then and there, she decided to take the initial
SECTION 47. Suppletory Application – For purposes of this Presiding Judge, Court of First Instance of action.chanroblesvirtualawlibrarychanrobles virtual law
Act, the Revised Penal Code and other applicable laws, Davao, 16th Judicial District, Sala 1, Tagum, library
shall have suppletory application. Davao del Norte; FILOMENA GAVIANA,
MACADANGDANG; and ROLANDO On April 28, 1971, private respondent (plaintiff therein)
RAMA, Respondents. instituted a complaint for legal separation in the Court of
SECTION 48. Separability Clause. – If any section or
provision of this Act is held unconstitutional or invalid, the First Instance of Davao, Branch VI I I at Tagum, Davao,
other sections or provisions shall not be affected. RESOLUTION which complaint was docketed as Civil Case No. 109 and
entitled "Filomena Gaviana Macadangdang vs. Antonio
MAKASIAR, J.: Macadangdang" [P. 156,
SECTION 49. Repealing Clause – All laws, Presidential
rec].chanroblesvirtualawlibrary chanrobles virtual law library
decrees, executive orders and rules and regulations, or
parts thereof, inconsistent with the provisions of this Act are This petition for certiorari, prohibition and
hereby repealed or modified accordingly. injunction with prayer for temporary restraining Petitioner (then defendant) filed his answer with
order presents for review the Court of Appeal's counterclaim dated May 31, 1971 [p. 158,
resolution dated December 21, 1973, which rec].chanroblesvirtualawlibrary chanrobles virtual law library
SECTION 50. Effectivity – This Act shall take effect fifteen
(15) days from the date of its complete publication in at least dismissed the petition in CA-G.R. No. Sp-02656-R,
two (2) newspapers of general circulation. petitioner's motion for reconsideration of the said On February 9, 1972, private respondent filed a petition for
resolution having been denied on January 29, appointment of administrator, to administer the estate of the
1974.chanroblesvirtualawlibrary chanrobles virtual conjugal partnership pending the termination of the case [p.
Art. 63. The decree of legal separation shall have the
law library 100, rec.].chanroblesvirtualawlibrary chanrobles virtual law
following effects:
library
(1) The spouses shall be entitled to live separately from From the records, it appears that respondent
each other, but the marriage bonds shall not be severed; Filomena Gaviana Macadangdang (hereinafter Petitioner opposed the aforesaid petition in a pleading
referred to as private respondent) and petitioner dated February 21, 1972 [P. 102, rec] chanrobles virtual law
(2) The absolute community or the conjugal partnership Antonio Macadangdang contracted marriage in library
shall be dissolved and liquidated but the offending spouse 1946 after having lived together for two years.
shall have no right to any share of the net profits earned by From a humble buy-and-sell business and sari-sari On January 4, 1973, the petition for appointment of
the absolute community or the conjugal partnership, which store operation in Davao City, the spouses moved administrator not having been acted upon, the trial court
shall be forfeited in accordance with the provisions of Article to Mawab Davao del Norte where, through hard handed down its decision, the dispositive portion of which
43(2); work and good fortune, their small business grew states thus: chanrobles virtual law library
(3) The custody of the minor children shall be awarded to and expanded into merchandising, trucking,
the innocent spouse, subject to the provisions of Article 213 transportation, rice and corn mill business, abaca
Wherefore, judgment is hereby rendered ordering the legal
of this Code; and stripping, real estate and others. They were
separation of plaintiff and the defendant, or what under the
blessed with six children, three of whom were
old law was separation from bed and board - a mensa et
(4) The offending spouse shall be disqualified from already of majority age and the other three were
thoro - with all the legal effects attendant thereto,
inheriting from the innocent spouse by intestate succession. still minors as of the time this case was initiated in
particularly the dissolution and liquidation of the conjugal
Moreover, provisions in favor of the offending spouse made the lower court. With their established businesses
community of property. Since there is no complete list of the
in the will of the innocent spouse shall be revoked by and accumulated wealth, their once simple life
community property which has to be divided, pending the
operation of law. (106a) became complicated and their relationship started
dissolution of the conjugal property, the defendant is
to suffer setbacks. While the economic or material
ordered to pay to plaintiff P10,000.00 for her support, for
aspect of their marriage was stabilized the physical
any way he had been disposing some of the properties or
and spiritual aspects became shaky. Both accused
mortgaging them without sharing the plaintiff any part of the
G.R. No. L-38287 October 23, 1981 each other of indulging in extramarital relations.
fruits or proceeds thereof until the court can appoint an
Married life for them became so intolerable that
administrator, as prayed for by plaintiff in a separate petition,
they separated in 1965 when private respondent
who will take over the administration and management of all This motion for reconsideration was denied in the The Court of Appeals, in its resolution of December 21,
the conjugal partnership properties, and act as guardian of order of October 13, 1973 [p. 133, 1973, ruled that the questioned January 4, 1973 decision of
the minor children; to protect said properties from rec].chanroblesvirtualawlibrary chanrobles virtual the lower court had become final and, consequently, the
dissipation, and who will submit a complete inventory of law library appointment of an administrator was valid and that the
said properties so that the Court can make a just division, petition was not sufficient in substance, since the applicable
such division to be embodied in a supplemental decision. ... On October 13, 1973, herein private respondent law and jurisprudence afford the petitioner no valid cause to
[pp. 104-115, rec.]. filed a motion for appointment of administrator and impugn the three questioned orders. The appellate court
submission of complete fist of conjugal assets by accordingly dismissed the petition [pp. 70-80,
On August 7, 1973, private respondent filed a motion defendant, submitting therein three nominees for rec].chanroblesvirtualawlibrary chanrobles virtual law library
praying that she be allowed to withdraw P10,000.00 from administrator [p. 135,
the lease rental of a portion of their conjugal property rec].chanroblesvirtualawlibrary chanrobles virtual Hence, this appeal from the resolution of December 21,
deposited by Francisco Dizon [p. 116, law library 1973.chanroblesvirtualawlibrary chanrobles virtual law
rec.].chanroblesvirtualawlibrary chanrobles virtual law library
library On October 23, 1973, petitioner filed his second
motion for reconsideration praying therein that the On February 6, 1980, counsel for petitioner, through a
Respondent Judge acted on the aforesaid motion by issuing orders of September 20, 1973 and October 13, notice of death and motion to dismiss, informed this Court
the order of August 13, 1973 which directed the clerk of 1973 be reconsidered by not proceeding with the that petitioner Antonio Macadangdang died on November
court "to deliver, under receipt, to plaintiff Filomena Gaviana appointment of an administrator of the conjugal 30, 1979 and as a consequence thereof, this case and Civil
Macadangdang and/or to her counsel, Atty. Marcial properties of the parties [p. 137, Case No. 109 of the Court of First Instance of Davao have
Fernandez, the amount of P10,000.00" [p. 118, rec].chanroblesvirtualawlibrary chanrobles virtual become moot and academic [p. 516,
rec].chanroblesvirtualawlibrary chanrobles virtual law library law library rec.].chanroblesvirtualawlibrary chanrobles virtual law
library
On August 25, 1973, private respondent filed another Respondent Judge denied the aforesaid second
motion for the appointment of an administrator, reiterating motion for reconsideration in his order of Private respondent, when required to comment on the
her previous petition and urging favorable action thereon "to November 19, 1973, reiterating therein his ruling aforesaid motion, moved for a resolution of this case
impede unlawful sequestration of some conjugal assets and that the decree of legal separation had become although she believes that petitioner's death has posed new
clandestine transfers" by petitioner [p. 120, rec.]. Petitioner final [p. 141, intervening circumstances that would affect the entire
again filed his opposition dated September 6, 1973 [p. 122, rec].chanroblesvirtualawlibrary chanrobles virtual purpose in filing the same. In effect, private respondent
rec.].chanroblesvirtualawlibrary chanrobles virtual law law library agrees with petitioner's counsel that her husband's death
library has rendered the instant petition moot and academic [pp.
Petitioner brought the case to the Court of Appeals 522, 524, rec.].chanroblesvirtualawlibrary chanrobles virtual
On September 20, 1973, respondent Judge issued an order in a petition for certiorari and prohibition with writ of law library
directing plaintiff's counsel "to submit three (3) names for preliminary injunction and/or temporary restraining
appointment as administrator, including in the list, if order filed on December 18, 1973. Said petition Petitioner had averred that the Court of Appeals gravely
possible, a banking institution authorized to handle cases of sought to review, set aside and declare null and erred in holding that respondent Judge's incomplete
administration of properties, furnishing a copy of said list to void the orders of September 20, 1973, October 13, decision of January 4, 1973 had become final and
defendant, who shag be given three (3) days from receipt 1973 and November 19, 1973 of respondent executory and that the same Court committed an error in
thereof to present his observations and objections to said Judge; to prohibit respondent Judge from carrying holding that the appointment of an administrator in the case
recommended persons or entity, after which the Court will out and executing the aforecited orders; and to below was proper.chanroblesvirtualawlibrary chanrobles
select the administrator as may seem best suited for the prohibit him from treating, regarding and virtual law library
purpose" [pp. 126-127, rec] chanrobles virtual law library construing his decision of January 4, 1973 as
being "final and executory" as well as from Private respondent, upon the other hand, has always
Petitioner then filed a motion for reconsideration dated enforcing the same in any manner whatsoever [pp. maintained that - chanrobles virtual law library
October 3, 1973 of the order of September 20, 1973 with 1, 4, & 5, CA
prayer that he be allowed to continue administering the rec.].chanroblesvirtualawlibrary chanrobles virtual
1. the decision of January 4, 1973 had become final and
conjugal properties in accordance with law [p. 128, rec.]. law library
executory when the petitioner failed to appeal therefrom
within the reglementary period of 30 days from receipt In support of his contention that the Court of the issues involved in the litigation. For this reason the trial
thereof, despite the non-issuance of a supplemental Appeals committed grave error in holding that had to be reopened and a supplemental decision had to be
decision regarding the division of the conjugal properties; respondent Judge's incomplete decision of rendered ... (at p. 1053; emphasis supplied).
and chanrobles virtual law library January 4, 1973 had become final and executory,
petitioner had consistently asserted the following WE do not find merit in petitioner's submission that the
2. the appointment of an administrator pending the actual reasons: chanrobles virtual law library questioned decision had not become final and executory
division of said properties is proper being a must and an since the law explicitly and clearly provides for the
exercise of the sound discretion of the Honorable Presiding 1. Private respondent's complaint for legal dissolution and liquidation of the conjugal partnership of
Judge in the Court of First Instance of Davao, Branch VIII in separation and division of properties was a single gains of the absolute community of property as among the
Tagum [pp. 193-194, rec]. complaint. Thus, she explicitly prayed: chanrobles effects of the final decree of legal separation. Article 106 of
virtual law library the Civil Code thus reads: chanrobles virtual law library
Did petitioner's death on November 30, 1979 render the
case moot and academic? Legal problems do not cease xxx xxx xxxchanrobles virtual law library Art. 106. The decree of legal separation shall have the
simply because one of the parties dies; the same problems following effects: chanrobles virtual law library
may come up again in another case of similar magnitude. 3. That upon trial of this action judgment be
Considering also the far-reaching significance and rendered ordering the legal separation of the 1) The spouses shall be entitled to live separately from each
implications of a pronouncement on the very important plaintiff and the defendant and the division of all other, but the marriage bonds shall not be
issues involved, this Court feels bound to meet said issues the assets of the conjugal partnership, ... [p. 157, severed; chanrobles virtual law library
frontally and come out with a decisive resolution of the rec)
same.chanroblesvirtualawlibrary chanrobles virtual law
2) The conjugal partnership of gains or the absolute
library
In this single action, private respondent asked the conjugal community of property shall be dissolved and
trial court to decide if petitioner and she should be liquidated but the offending spouse shall have no right to
Thus, the questions for resolution have been narrowed legally separated, and if they should, what any share of the profits earned by the partnership or
down to the following: chanrobles virtual law library properties would form part of the conjugal regime community, without prejudice to the provisions of article
and which properties would be assigned to each 176;
1. Whether the decision of the trial court dated January 4, spouse.chanroblesvirtualawlibrary chanrobles
1973 in Civil Case No. 109 finding herein petitioner guilty of virtual law library xxx xxx xxxchanrobles virtual law library
concubinage and decreeing legal separation between him
and his wife Filomena Gaviana Macadangdang (private 2. Of the aforesaid issues, the lower court resolved [emphasis supplied].
respondent herein) had already become final and executory only the issue of legal separation and reserved for
long before the herein petition was filed; chanrobles virtual supplemental decision the division of the conjugal
law library The aforequoted provision mandates the dissolution and
properties. Petitioner had further argued that
liquidation of the property regime of the spouses upon
- chanrobles virtual law library
finality of the decree of legal separation. Such dissolution
2. Should the children of both spouses predecease the
and liquidation are necessary consequences of the final
surviving spouse, whether the intestate heirs of the Inasmuch as the Decision failed to dispose of all decree. This legal effect of the decree of legal
deceased could inherit from the innocent surviving spouse, the issues before the Court, which necessitated separation ipso facto or automatically follows, as an
particularly where the latter's share in the conjugal assets is the announcement of a forthcoming supplemental inevitable incident of, the judgment decreeing legal
concerned, in view of Article 106, No. 4 of the New Civil decision, petitioner respectfully submits that the separation-for the purpose of determining the share of each
Code; and chanrobles virtual law library Decision was an incomplete judgment. In Santos v. spouse in the conjugal
de Guzman, 1 SCRA 1048, is found this very assets.chanroblesvirtualawlibrary chanrobles virtual law
3. The effect of the pendency of Special Proceedings No. succinct explanation of what an incomplete library
134 in the Court of First Instance of Davao for the judgment is: chanrobles virtual law library
settlement of the estate of the deceased petitioner herein,
Even American courts have made definite pronouncements
on the decision in Civil Case No. 109 as well as on the ... There was but one case before the lower court. on the aforestated legal effect of a divorce (legal separation)
instant petition. Its first decision (of June 12, 1956) was, as already decree.chanroblesvirtualawlibrary chanrobles virtual law
stated, incomplete the same not having resolved library
Generally speaking, the purpose of a decree in divorce with the marriage and precludes the parties as to Miranda vs. Court of Appeals (L-33007, 71 SCRA 295,
insofar as the disposition of property is concerned is to fix all matters which might have been legitimately [June 18, 1976]). In this case, this Court explicitly
and make certain the property rights and interests of the proved in support of charges or defenses in the stated: chanrobles virtual law library
parties (Mich-Westgate vs. Westgate, 288 N.W. 860, 291 action (U.S.-Spreckles vs. Wakefield, C.C.A. 286 F.
Mich. 18, 300 [1] p. 354, C.J.S. Vol. 27B); and it has been 465) and bars any action thereafter brought by For the guidance of the bench and bar, the court declares
held that the provisions of the decree should definitely and either party to determine the question of property as abandoned the doctrine of Fuentebella vs. Carrascoso
finally determine the property rights and interests of the rights (Fla.-Cooper vs. Cooper, 69 So. 2d 881; and adopts the opposite rule that judgments for recovery
parties (Wash.-Shaffer vs. Shaffer, 262 P. 2d. 763, 43 Finston vs. Finston, 37 So. 2d 423,160 Fla. 935; p. with accounting are final and appealable (without need of
Wash. 2d 629; 300 [11 p. 354 C.J.S. Vol. 27B); and that any 751, C.J.S. Vol. awaiting the accounting) and would become final and
attempted reservation of such questions for future 27A).chanroblesvirtualawlibrary chanrobles virtual executory if not appealed within the reglementary period.
determination is improper and error (Mich.-Karwowski vs. law library
Karwowski, 20 N.W. 2d 851, 313 Mich. 167, 300 11] p. 354,
In resolving the question of whether or not the judgment
C.J.S., Vol. 27B; emphasis An absolute divorce ordinarily terminates all directing an accounting in an action for recovery of
supplied).chanroblesvirtualawlibrary chanrobles virtual law property rights and interests, not actually vested, properties is final and appealable, this Court further
library of divorced persons in property of each other, explained: chanrobles virtual law library
which are dependent on the marriage
Some statutes providing for the division or disposition of the (U.S.-Cockrill vs. Woodson, D.C. Mo., 70 F. 752),
The judgment "directing an accounting is appealable,
property of the parties to a divorce have been held at least where no proceedings have been taken to
regardless of whether the accounting is the principal relief
mandatory and hence to require the court to decree some vacate or modify the decree by appeal until the
sought or a mere incident or consequence of the judgment
division of their property rights (U.S.-Pearce vs. CIR, 62 S. statutory time therefor has expired (Kan.-Roberts
which grants recovery and delivery of absconded properties
Ct. 154, 315 U.S. 543, 86 L. ed. 1016, construing Texas vs. Fagan 92 P. 559, 76 Kan. 536). Accordingly,
as the principal relief and expressly provides that"a
statute; 291 [1] p. 263 C.J.S. Vol. unless the court granting the decree is without
judgment or order directing an accounting in an action, shall
27B).chanroblesvirtualawlibrary chanrobles virtual law jurisdiction, inchoate rights of the wife in the
not be stayed after its rendition and before an appeal is
library husband's property are usually cut off (Ky-Bowling
taken or during the pendency of an
vs. Little, 206 S.W. 1, 182 Ky 86) especially where
appeal.chanroblesvirtualawlibrary chanrobles virtual law
Likewise, it has been held that the settlement of some by the terms of the decree all property obtained by
library
pro-property rights between the parties is an incident of either spouse from or through the other during the
every decree of divorce where there is any property marriage is restored to such spouse (Tex. Houston,
etc., R. Co. vs. Helm, Civ. App. 93 S.W. 697; pp. xxx xxx xxxchanrobles virtual law library
involved (Utah-Smith vs. Smith, 291 P. 298, 77 Utah 60,
291 [1] p. 264, C.J.S., Vol. 752-753, C.J.S. Vol.
27B).chanroblesvirtualawlibrary chanrobles virtual law 27A).chanroblesvirtualawlibrary chanrobles virtual If a judgment which directs solely an accounting is
library law library appealable notwithstanding that it "does not finally dispose
of the action and the accounting has yet to be rendered to
Enunciating with directness and finality, one U.S. complete the relief sought," much more so is a judgment
It has been held that notwithstanding the division of property
court held: "The part of a divorce suit regarding which orders accounting as a mere incident appealable,
between the parties, the subject matter of a divorce action
property is a part of the very divorce action itself" because the judgment which orders the delivery of
remains the marital status of the parties, the settlement of
(Tex.-Ex parte Scott 123 S.W. 2d. 306, 313, 133 properties does finally dispose of the action on its
the property rights being merely incidental (Wash.-State ex
Tex. 1, answers to certified questions conformed merits, chanrobles virtual law library
rel. Atkins vs. Superior Court of King Country, 97 P. 2d. 139,
1 Wash. 2d 677; 291 [1] p. 264 C.J.S., Vol. 27B; emphasis to, Civ. App. 126, S.W. 2d 525; 291 [1] p. 264,
supplied).chanroblesvirtualawlibrary chanrobles virtual law C.J.S. Vol. xxx xxx xxxchanrobles virtual law library
library 27B).chanroblesvirtualawlibrary chanrobles virtual
law library Imperative and controlling considerations of public
Under other authorities, by the very nature of the litigation, policy and of sound practice in the courts to achieve
all property rights growing out of marital relations are settled Petitioner erred in invoking the case of Vda. de the desideratum of just, speedy and inexpensive
and included in divorce proceedings (Ind.-Novak vs. Novak, Zaldarriaga vs. Zaldarriaga which in turn cited the determination of every action militate against such
133 N.E. 2d 578, 126 Ind. App. 428) and a decree of doctrine of Fuentebella vs. Carrascoso, which We a novel and unprecedented situation where a judgment on
divorce is an adjudication of all property rights connected have already declared abrogated in the case of the merits for recovery of properties would be
left dangling and would be considered as "interlocutory" and The Court's considered opinion is the Civil Code) clearly spells out the effects of a final decree
subject to revision and alteration at will for as long as that imperative considerations of public policy and of legal separation on the conjugal
the accounting ordered as a mere incident and logical of sound practice in the courts and adherence to property.chanroblesvirtualawlibrary chanrobles virtual law
consequence has not been rendered and acted upon by the the constitutional mandate of simplified, just, library
trial court.chanroblesvirtualawlibrary chanrobles virtual law speedy and inexpensive determination of every
library action can for considering such judgments for The death on November 30, 1979 of herein petitioner who
recovery of property with was declared the guilty spouse by the trial court, before the
xxx xxx xxxchanrobles virtual law library accounting as final judgments which are duly liquidation of the conjugal property is effected, poses a new
appealable (and would therefore become final problem which can be resolved simply by the application of
and executory if not appealed within the the rules on intestate succession with respect to the
The Court, however, deems it proper for the guidance of the
reglementary period) with the accounting as a properties of the deceased
bench and bar to now declare as is clearly indicated from
mere incident of the judgment to be rendered petitioner.chanroblesvirtualawlibrary chanrobles virtual law
the compelling reasons and considerations herein-above
during the course of the appeal as provided in Rule library
stated:- that the court considers the better rule to be that
39, section 4 or to be implemented at the
stated in H.E. Heacock Co. vs. American Trading Co. (53
execution stage upon final affirmance on appeal of
Phil. 481 [19291, to wit, that where the primary purpose of a Thus, the rules on dissolution and liquidation of the conjugal
the judgment (as in Court of Industrial Relations
case is to ascertain and determine who between plaintiff partnership of gains under the aforecited provisions of the
unfair labor practice cases ordering reinstatement
and defendant is the true owner and entitled to the Civil Code would be applied effective January 4, 1973 when
of the worker with accounting, computation and
exclusive use of the disputed property, "the judgment ... the decree of legal separation became final. Upon the
payment of his backwages less earnings
rendered by the lower court [is] a judgment on the merits as liquidation and distribution conformably with the law
elsewhere during his layoff) and that the only
to those questions, and (that) the order of the court for governing the effects of the final decree of legal separation,
reason given in Fuentebella for the contrary ruling,
an accounting was based upon and is incidental to the the law on intestate succession should take over in the
viz, "the general harm that would follow from
judgment on the merits. That is to say, that the judgment ... disposition of whatever remaining properties have been
throwing the door open to multiplicity of appeals in
(is) a final judgment ... ; that in this kind of a case an allocated to petitioner. This procedure involves details
a single case is of lesser import and
accounting is a mere incident to the judgment; that which properly pertain to the lower
consequence".
an appeal lies from the rendition of the judgment as court.chanroblesvirtualawlibrary chanrobles virtual law
rendered ...chanroblesvirtualawlibrarychanrobles virtual law library
library Considering the aforestated well-established
jurisprudence on the matter, the clear mandate of
The properties that may be allocated to the deceased
Article 106 of the Civil Code and the aforequoted
xxx xxx xxxchanrobles virtual law library petitioner by virtue of the liquidation of the conjugal assets,
ruling in the Miranda case, the decision of the trial
shall be distributed in accordance with the laws of intestate
court dated January 4, 1973 decreeing the legal
-that accordingly, the contrary ruling in Fuentebella vs. succession in Special Proceedings No.
separation between then spouses Antonio
Carrascoso which expressly reversed the Heacock case 134.chanroblesvirtualawlibrary chanrobles virtual law library
Macadangdang and Filomena Gaviana
and a line of similar decisions (Africa vs. Africa, 42 Phil. 934; Macadangdang had long become final and
Villanueva vs. Capistrano; Prophylactic Brush Co., et al. vs. executory and the division of the conjugal property WHEREFORE, THIS PETITION IS HEREBY DISMISSED,
Court of Appeals, G.R. No. 46254, Nov. 23, 1938 in a "supplemental decision" is a mere incident of WITH COSTS AGAINST PETITIONER'S
[Unpublished) and ruled that such a decision for recovery of the decree of legal ESTATE.chanroblesvirtualawlibrary chanrobles virtual law
property with accounting 'is not final but merely interlocutory separation.chanroblesvirtualawlibrary chanrobles library
and therefore not appealable and subsequent cases virtual law library
Adhering to the same Zaldarriaga vs. Enriquez, 1 SCRA
1188) must be now in turn abandoned and set
Since We have ruled on the finality of the judgment
aside.chanroblesvirtualawlibrary chanrobles virtual law
decreeing the spouses' legal separation as of A.M. No. 02-11-12-SC March 4, 2003
library
January 4, 1973, the remaining issue for Our
resolution is the final disposition of their conjugal RE: PROPOSED RULE ON PROVISIONAL ORDERS
xxx xxx xxxchanrobles virtual law library partnership of gains which partnership, by reason
of the final decree, had been automatically
RESOLUTION
dissolved. The law (Articles 106, 107 and 176 of
 Acting on the letter of the Chairman of the (c) The court may likewise consider the following been accustomed to; (4) the non-monetary contributions
Committee on Revision of the Rules of Court submitting for factors: (1) whether the spouse seeking support is that the parents will make toward the care and well-being of
this Court's consideration and approval the Proposed Rule the custodian of a child whose circumstances the child.
on Provisional Orders, the Court Resolved to APPROVED make it appropriate for that spouse not to seek
the same. outside employment; (2) the time necessary to The Family Court may direct the deduction of the
acquire sufficient education and training to enable provisional support from the salary of the parent.
The Rule shall take effect on March 15, 2003 the spouse seeking support to find appropriate
following its publication in a newspaper of general employment, and that spouse's future earning
Section 4. Child Custody. - In determining the right party or
circulation not later than March 7, 2003 capacity; (3) the-duration of the marriage; (4) the
person to whom the custody of the child of the parties may
comparative financial resources of the spouses,
be awarded pending the petition, the court shall consider
including their comparative earning abilities in the
March 4, 2003 the best interests of the child and shall give paramount
labor market; (5) the needs and obligations of each
consideration to the material and moral welfare of the child.
spouse; (6) the contribution of each spouse to the
Davide Jr. C.J., Bellosillo, Puno, Vitug, Mendoza, marriage, including services rendered in
Panganiban, Quisumbing, Sandoval Gutierrez, Carpio, home-making, child care, education, and career The court may likewise consider the following
Austria-Martinez, Carpio-Morales, Callejo, Sr. and Azcuna, building of the other spouse; (7) the age and health factors: (a) the agreement of the parties; (b) the desire and
JJ. of the spouses; (8) the physical and emotional ability of each parent to foster an open and loving
Ynares-Santiago, on leave, conditions of the spouses; (9) the ability of the relationship between the child and the other parent; (c) the
Corona, officially on leave. supporting spouse to give support, taking into child's health, safety, and welfare; (d) any history of child or
account that spouse's earning capacity, earned spousal abase by the person seeking custody or who has
RULE ON PROVISIONAL ORDERS and unearned income, assets, and standard of had any filial relationship with the child, including anyone
living; and (10) any other factor the court may courting the parent; (e) the nature and frequency of contact
deem just and equitable. with both parents; (f) habitual use of alcohol or regulated
Section 1. When Issued, - Upon receipt of a verified
substances; (g) marital misconduct; (h) the most suitable
petition for declaration of absolute nullity of void marriage or
physical, emotional, spiritual, psychological and educational
for annulment of voidable marriage, or for legal separation, (d) The Family Court may direct the deduction of
environment; and (i) the preference of the child, if over
and at any time during the proceeding, the court, motu the provisional support from the salary of the
seven years of age and of sufficient discernment, unless the
proprio or upon application under oath of any of the parties, spouse.
parent chosen is unfit.
guardian or designated custodian, may issue provisional
orders and protection orders with or without a hearing. Section 3. Child Support. - The common children
These orders may be enforced immediately, with or without The court may award provisional custody in the
of the spouses shall be supported from the
a bond, and for such period and under such terms" and following order of preference: (1) to both parents jointly; (2)
properties of the absolute community or the
conditions as the court may deem necessary. to either parent taking into account all relevant
conjugal partnership.
considerations under the foregoing paragraph, especially
the choice of the child over seven years of age, unless the
Section 2. Spousal Support. - In determining support for Subject to the sound discretion of the parent chosen is unfit; (3} to the surviving grandparent, or if
the spouses, the court may be guided by the following rules: court, either parent or both may be ordered to give there are several of them, to the grandparent chosen by the
an amount necessary for the support, child over seven years of age and of sufficient discernment,
(a) In the absence of adequate provisions in a written maintenance, and education of the child. It shall be unless the grandparent is unfit or disqualified; (4) to the
agreement between the spouses, the spouses may be in proportion to the resources or means of the eldest brother or sister over twenty-one years of age, unless
supported from the properties of the absolute community or giver and to the necessities of the recipient. he or she is unfit or disqualified; (5) to the child's actual
the conjugal partnership. custodian over twenty-one years of age, unless unfit or
In determining the amount of provisional disqualified; or (6) to any other person deemed by the court
(b) The court may award support to either spouse in such support, the court may likewise consider the suitable to provide proper care and guidance for the child.
amount and for such period of time as the court may deem following factors: (1) the financial resources of the
just and reasonable based on their standard of living during custodial and non-custodial parent and those of The custodian temporarily designated by the" court
the marriage. the child; (2) the physical and emotional health of shall give the court and the parents five days notice of any
the child and his or her special needs and plan to change the residence of the child or take him out of
aptitudes; (3) the standard of living the child has
his residence for more than three days provided it does not The court may recall the order. motu The receiver or administrator may not dispose of or
prejudice the visitation rights of the parents. proprio or upon verified motion of any of the parties encumber any common property or specific separate
after summary hearing, subject to such terms and property of either spouse without prior authority of the court.
Section 5. Visitation Rights. - Appropriate visitation rights conditions as may be necessary for the best
shall be provided to the parent who is not awarded interests of the child. The provisional order issued by the court shall be
provisional custody unless found unfit or disqualified by the registered in the proper Register of Deeds and annotated in
court. . Section 7. Order of Protection. - The court may all titles of properties subject of the receivership or
issue an Order of Protection requiring any person: administration.
Section 6. Hold Departure Order. - Pending resolution of
the petition, no child of the parties shall be brought out of (a) to stay away from the home, school, business, Section 9. Effectivity. - This Rule shall take effect on March
the country without prior order from the court. or place of employment of the child, other parent or 15, 2003 following its publication in a newspaper of general
any other party, and to stay away from any other circulation not later than March 7, 2003.
The court, motu proprio or upon application under specific place designated by the court;
oath, may issue ex-parte a hold departure order, addressed TITLE III
to the Bureau of Immigration and Deportation, directing it (b) to refrain from harassing, intimidating, or
not to allow the departure of the child from the Philippines threatening such child or the other parent or any RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND
without the permission of the court. person to whom custody of the child is awarded; WIFE

The Family Court issuing the hold departure order (c) to refrain from acts of commission or omission
shall furnish the Department of Foreign Affairs and the that create an unreasonable risk to the health, Art. 68. The husband and wife are obliged to live together,
Bureau of Immigration and Deportation of the Department safety, or welfare of the child; observe mutual love, respect and fidelity, and render mutual
of Justice a copy of the hold departure order issued within help and support.
twenty-four hours from the time of its issuance and through (d) to permit a parent, or a person entitled to
the fastest available means of transmittal. visitation by a court order or a separation
agreement, to visit the child at stated periods;
G.R. No. L-23482 August 30, 1968
The hold-departure order shall contain the
following information: (e) to permit a designated party to enter the
ALFONSO LACSON, petitioner,
residence during a specified period of time in order
(a) the complete name (including the middle name), the to take persona! belongings not contested in a vs.
CARMEN SAN JOSE-LACSON and THE COURT OF
date and place of birth, and the place of last residence of proceeding pending with the Family Court;
APPEALS, respondents.
the person against whom a hold-departure order has been
issued or whose departure from the country has been (f) to comply with such other orders as are
enjoined; necessary for the protection of the child. -----------------------------

(b) the complete title and docket number of the case in Section 8. Administration of Common Property. - G.R. No. L-23767 August 30, 1968
which the hold departure was issued; If a spouse without just cause abandons the other
or-fails to comply with his or her obligations to the CARMEN SAN JOSE-LACSON, plaintiff-appellant,
(c) the specific nature of the case; and family, the court may, upon application of the vs.
aggrieved party under oath, issue a provisional ALFONSO LACSON, defendant-appellee.
(d) the date of the hold-departure order. order appointing the applicant or a third person as
receiver or sole administrator of the common -----------------------------
property subject to such precautionary conditions it
If available, a recent photograph of the person
may impose. G.R. No. L-24259 August 30, 1968
against whom a hold-departure order has been issued or
whose departure from the country has been enjoined
should also be included.
ALFONSO LACSON, petitioner-appellee, at the Santa Clara Subdivision, Bacolod City, did elder children Enrique and Maria Teresa to petitioner
vs. not return, and decided to reside in Manila. Alfonso Lacson — this judgment of course being subject to
CARMEN SAN JOSE-LACSON, petitioner-appellant. enforcement by execution writ and contempt.
4. Petitioners have mutually agreed upon the
Paredes, Poblador, Cruz and Nazareno for dissolution of their conjugal partnership subject to 5. Petitioners have no creditors.
respondent-appellant Carmen San Jose-Lacson. judicial approval as required by Article 191 of the
Norberto Quisumbing for petitioner-appellee Alfonso Civil Code of the Philippines — the particular terms WHEREFORE, they respectfully pray that notice of this
Lacson. and conditions of their mutual agreement being as petition be given to creditors and third parties pursuant to
follows: Article 191 of the Civil Code of the Philippines and
CASTRO, J.: thereafter that the Court enter its judicial approval of the
(a) There will be separation of property — foregoing agreement for the dissolution of their conjugal
These three cases (G.R. L-23482, L-23767 and L-24259) petitioner Carmen San Jose-Lacson hereby partnership and for separation of property, except that the
involving the same parties pose a common fundamental waiving any and all claims for a share in property Court shall immediately approve the terms set out in
issue the resolution of which will necessarily and that may be held by petitioner Alfonso Lacson paragraph 4 above and embody the same in a judgment
inescapably resolve all the other issues. Thus their joinder since they have acquired no property of any immediately binding on the parties hereto to the end that
in this decision. consequence. any non-compliance or violation of its terms by one party
shall entitle the other to enforcement by execution writ and
(b) Hereafter, each of them shall own, dispose of, contempt even though the proceedings as to creditors have
The antecedent facts are not disputed.
possess, administer and enjoy such separate not been terminated.".
estate as they may acquire without the consent of
Alfonso Lacson (hereinafter referred to as the petitioner
the other and all earnings from any profession, Finding the foregoing joint petition to be "conformable to
spouse) and Carmen San Jose-Lacson (hereinafter referred
business or industry as may be derived by each law," the CFI (Judge Jose F. Fernandez, presiding) issued
to as the respondent spouse) were married on February 14,
petitioner shall belong to that petitioner an order on April 27, 1963, rendering judgment (hereinafter
1953. To them were born four children, all alive.
exclusively. referred to as the compromise judgment) approving and
incorporating in toto their compromise agreement. In
On January 9, 1963 the respondent spouse left the conjugal compliance with paragraph 4 (e) of their mutual agreement
(c) The custody of the two elder children named
home in Santa Clara Subdivision, Bacolod City, and (par. 3[e] of the compromise judgment), the petitioner
Enrique and Maria Teresa shall be awarded to
commenced to reside in Manila. She filed on March 12, spouse delivered all the four children to the respondent
petitioner Alfonso Lacson and the custody of the
1963 a complaint docketed as civil case E-00030 in the spouse and remitted money for their support.
younger children named Gerrard and Ramon shall
Juvenile and Domestic Relations Court of Manila
be awarded to petitioner Carmen San
(hereinafter referred to as the JDRC) for custody of all their
Jose-Lacson. On May 7, 1963 the respondent spouse filed in the JDRC a
children as well as support for them and herself.
motion wherein she alleged that she "entered into and
(d) Petitioner Alfonso Lacson shall pay petitioner signed the ... Joint Petition as the only means by which she
However, the spouses, thru the assistance of their could have immediate custody of the ... minor children who
Carmen San Jose-Lacson a monthly allowance of
respective attorneys, succeeded in reaching an amicable are all below the age of 7," and thereafter prayed that she
P300.00 for the support of the children in her
settlement respecting custody of the children, support, and "be considered relieved of the ... agreement pertaining to
custody.
separation of property. On April 27, 1963 they filed a joint the custody and visitation of her minor children ... and that
petition dated April 21, 1963, docketed as special since all the children are now in her custody, the said
proceeding 6978 of the Court of First Instance of Negros (e) Each petitioner shall have reciprocal rights of
custody in her favor be confirmed pendente lite." On May 24,
Occidental (hereinafter referred to as the CFI). visitation of the children in the custody of the other
1963 the petitioner spouse opposed the said motion and
at their respective residences and, during the
moved to dismiss the complaint based, among other things,
summer months, the two children in the custody of
The important and pertinent portions of the petition, on the grounds of res judicata and lis pendens. The JDRC
each petitioner shall be given to the other except
embodying their amicable settlement, read as follows: on May 28, 1963, issued an order which sustained the
that, for this year's summer months, all four
petitioner spouse's plea of bar by prior judgment and lis
children shall be delivered to and remain with
3. Petitioners have separated last January 9, 1963 when pendens, and dismissed the case. After the denial of her
petitioner Carmen San Jose-Lacson until June 15,
petitioner Carmen San Jose-Lacson left their conjugal home motion for reconsideration, the respondent spouse
1963 — on which date, she shall return the two
interposed an appeal to the Court of Appeals (CA-G.R. No.
32608-R) wherein she raised, among others, the issue of June 27, 1963, she averred that the CFI (thru (1) The Court of Appeals erred in annulling thru certiorari
validity or legality of the compromise agreement in Judge Querubin) committed grave abuse of the lower court's order of execution of the compromise
connection only with the custody of their minor children. On discretion and acted in excess of jurisdiction in judgment.
October 14, 1964 the Court of Appeals certified the said ordering the immediate execution of the
appeal to the Supreme Court (G.R. No. L-23767), since "no compromise judgment in its order of June 22, 1963, (2) The Court of Appeals erred in resolving in the certiorari
hearing on the facts was ever held in the court below — no thus in effect depriving her of the right to appeal. case the issue of the legality of the compromise judgment
evidence, testimonial or documentary, presented — only a She prayed for (1) the issuance of a writ of which is involved in two appeals, instead of the issue of
question of law pends resolution in the appeal." . preliminary injunction enjoining the respondents grave abuse of discretion in ordering its execution.
therein and any person acting under them from
The respondent spouse likewise filed a motion dated May enforcing, by contempt proceedings and other
(3) The Court of Appeals erred in ruling that the
15, 1963 for reconsideration of the compromise judgment means, the writ of execution issued pursuant to the
compromise agreement upon which the judgment is based
dated April 27, 1963 rendered in special proceeding 6978 of order of the respondent Judge Querubin dated
violates article 363 of the Civil Code. 1äwphï1.ñët
the CFI, wherein she also alleged, among others, that she June 22, 1963 in special proceeding 6978 of the
entered into the joint petition as the only means by which CFI, (2) the setting aside, after hearing, of the
compromise judgment dated April 27, 1963 and As heretofore adverted, the aforecited three appeals
she could have immediate custody of her minor children,
the order dated June 22, 1963, and (3) the converge on one focal issue: whether the compromise
and thereafter prayed the CFI to reconsider its judgment
awarding of the custody of Enrique and Maria agreement entered into by the parties and the judgment of
pertaining to the custody and visitation of her minor children
Teresa to her, their mother. As prayed for, the the CFI grounded on the said agreement, are conformable
and to relieve her from the said agreement. The petitioner
Court of Appeals issued ex parte a writ of to law.
spouse opposed the said motion and, on June 1, 1963, filed
a motion for execution of the compromise judgment and a preliminary injunction enjoining the enforcement of
charge for contempt. The CFI (Judge Jose R. Querubin, the order dated June 22, 1963 for execution of the We hold that the compromise agreement and the judgment
presiding), in its order dated June 22, 1963, denied the compromise judgment rendered in special of the CFI grounded on the said agreement are valid with
respondent spouse's motion for reconsideration, granted proceeding 6978. The petitioner spouse filed an respect to the separation of property of the spouses and the
the petitioner spouse's motion for execution, and ordered urgent motion dated July 5, 1963 for the dissolution of the conjugal partnership.
that upon "failure on the part of Carmen San Jose-Lacson to dissolution of the writ of preliminary injunction ex
deliver the said children [i.e., to return the two older children parte which urgent motion was denied by the Court The law allows separation of property of the spouses and
Enrique and Maria Teresa in accordance with her of Appeals in its resolution dated July 9, 1963. The the dissolution of their conjugal partnership provided judicial
agreement with Alfonso Lacson] to the special sheriff on or petitioner spouse likewise filed his answer. After sanction is secured beforehand. Thus the new Civil Code
before June 29, 1963, she may be held for contempt hearing, the Court of Appeals on May 11, 1964 provides:
pursuant to the provisions of Rule 39 sections 9 and 10, and promulgated in said certiorari case (CA-G.R. No.
Rule 64 section 7 of the (old) Rules of Court." From the 32384-R) its decision granting the petition
In the absence of an express declaration in the marriage
aforesaid compromise judgment dated April 27, 1963 and for certiorari and declaring null and void both (a)
settlements, the separation of property between spouses
execution order dated June 22, 1963, the respondent the compromise judgment dated April 27, 1963 in
during the marriage shall not take place save in virtue of a
spouse interposed an appeal to the Court of Appeals so far as it relates to the custody and right of
judicial order. (Art. 190, emphasis supplied)
(CA-G.R. No. 32798-R) wherein she likewise questioned visitation over the two children, Enrique and
the validity or legality of her agreement with the petitioner Teresa, and (b) the order dated June 22, 1963 for
execution of said judgment. The petitioner spouse The husband and the wife may agree upon the dissolution
spouse respecting custody of their children. On February 11,
moved to reconsider, but his motion for of the conjugal partnership during the marriage, subject to
1965 the Court of Appeals also certified the said appeal to
reconsideration was denied by the Court of judicial approval. All the creditors of the husband and of the
the Supreme Court (G.R. No. L-24259), since "no evidence
Appeals in its resolution dated July 31, 1964. From wife, as well as of the conjugal partnership, shall be notified
of any kind was introduced before the trial court and ...
the decision dated May 11, 1964 and the of any petition for judicial approval of the voluntary
appellant did not specifically ask to be allowed to present
resolution dated July 31, 1964, the petitioner dissolution of the conjugal partnership, so that any such
evidence on her behalf." .
spouse interposed an appeal to this Court, as creditors may appear at the hearing to safeguard his
abovestated, and assigned the following errors: interests. Upon approval of the petition for dissolution of the
The respondent spouse also instituted certiorari conjugal partnership, the court shall take such measures as
proceedings before the Court of Appeals (CA-G.R. No. may protect the creditors and other third persons. (Art. 191,
32384R), now the subject of an appeal by certiorari to this par. 4, emphasis supplied).
Court (G.R. No. L-23482). In her petition for certiorari dated
In the case at bar, the spouses obtained judicial imprimatur '... For though in particular cases the repugnance ... [T]hat the Rules do not require as a ground for dismissal
of their separation of property and the dissolution of their of the law to dissolve the obligations of matrimonial of a complaint that there is a prior pending action. They
conjugal partnership. It does not appeal that they have cohabitation may operate with great severity upon provide only that there is a pending action, not a pending
creditors who will be prejudiced by the said arrangements. individuals, yet it must be carefully remembered prior action. 1
that the general happiness of the married life is
It is likewise undisputed that the couple have been secured by its indissolubility. When people We agree with the Court of Appeals, however, that the CFI
separated in fact for at least five years - the wife's residence understand that they must live together, except for erred in depriving the mother, the respondent spouse, of the
being in Manila, and the husband's in the conjugal home in a very few reasons known to the law, they learn to custody of the two older children (both then below the age
Bacolod City. Therefore, inasmuch as a lengthy separation soften by mutual accommodation that yoke which of 7).
has supervened between them, the propriety of severing they know they cannot shake off; they become
their financial and proprietary interests is manifest. good husbands and good wives from the necessity
The Civil Code specifically commands in the second
of remaining husbands and wives; for necessity is
sentence of its article 363 that "No mother shall be
a powerful master in teaching the duties which it
Besides, this Court cannot constrain the spouses to live separated from her child under seven years of age, unless
imposes ..." (Evans vs. Evans, 1 Hag. Con., 35;
together, as the court finds compelling reasons for such measure." The
161 Eng. Reprint, 466, 467.) (Arroyo vs. Vasquez
rationale of this new provision was explained by the Code
de Arroyo, Id., pp. 58-59).
[I]t is not within the province of the courts of this country to Commission thus:
attempt to compel one of the spouses to cohabit with, and
We now come to the question of the custody and
render conjugal rights to, the other. .. At best such an order The general rule is recommended in order to avoid many a
support of the children.
can be effective for no other purpose than to compel the tragedy where a mother has seen her baby torn away from
spouse to live under the same roof; and the experience of her. No man can sound the deep sorrows of a mother who
those countries where the courts of justice have assumed to It is not disputed that it was the JDRC which first is deprived of her child of tender age. The exception
compel the cohabitation of married couple shows that the acquired jurisdiction over the matter of custody allowed by the rule has to be for "compelling reasons" for
policy of the practice is extremely questionable. (Arroyo v. and support of the children. The complaint the good of the child: those cases must indeed be rare, if
Vasquez de Arroyo, 42 Phil. 54, 60). docketed as civil case E-00030 in the JDRC was the mother's heart is not to be unduly hurt. If she has erred,
filed by the respondent spouse on March 12, 1963, as in cases of adultery, the penalty of imprisonment and the
whereas the joint petition of the parties docketed (relative) divorce decree will ordinarily be sufficient
However, in so approving the regime of separation of
as special proceeding 6978 in the CFI was filed on punishment for her. Moreover, her moral dereliction will not
property of the spouses and the dissolution of their conjugal
April 27, 1963. However, when the respondent have any effect upon the baby who is as yet unable to
partnership, this Court does not thereby accord recognition
spouse signed the joint petition on the same understand the situation." (Report of the Code Commission,
to nor legalize the de facto separation of the spouses, which
matter of custody and support of the children and p. 12).
again in the language of Arroyo v. Vasquez de Arroyo,
filed the same with the CFI of Negros Occidental,
supra — is a "state which is abnormal and fraught with
she in effect abandoned her action in the JDRC.
grave danger to all concerned." We would like to douse the The use of the word shall2 in article 363 of the Civil Code,
The petitioner spouse — who could have raised
momentary seething emotions of couples who, at the coupled with the observations made by the Code
the issue of lis pendens in abatement of the case
slightest ruffling of domestic tranquility — brought about by Commission in respect to the said legal provision,
filed in the CFI, but did not do so - had the right,
"mere austerity of temper, petulance of manners, rudeness underscores its mandatory character. It prohibits in no
therefore, to cite the decision of the CFI and to ask
of language, a want of civil attention and accommodation, uncertain: terms the separation of a mother and her child
for the dismissal of the action filed by the
even occasional sallies of passion" without more — would below seven years, unless such separation is grounded
respondent spouse in the JDRC, on the grounds
be minded to separate from each other. In this jurisdiction, upon compelling reasons as determined by a court.
of res judicata and lis pendens. And the JDRC
the husband and the wife are obliged to live together,
acted correctly and justifiably in dismissing the
observe mutual respect and fidelity, and render mutual help The order dated April 27, 1963 of the CFI, in so far as it
case for custody and support of the children based
and support (art. 109, new Civil Code). There is, therefore, awarded custody of the two older children who were 6 and 5
on those grounds. For it is no defense against the
virtue in making it as difficult as possible for married couples years old, respectively, to the father, in effect sought to
dismissal of the action that the case before the CFI
— impelled by no better cause than their whims and separate them from their mother. To that extent therefore, it
was filed later than the action before the JDRC,
caprices — to abandon each other's company. was null and void because clearly violative of article 363 of
considering:.
the Civil Code.
Neither does the said award of custody fall within the (1) Is entitled to parental care; choose which parent it prefers to live with if it be over ten
exception because the record is bereft of any compelling years of age, unless the parent so chosen be unfit to take
reason to support the lower court's order depriving the wife (2) Shall receive at least elementary education; charge of the child by reason of moral depravity, habitual
of her minor children's company. True, the CFI stated in its drunkenness, incapacity, or poverty... (Emphasis supplied).
order dated June 22, 1963, denying the respondent
(3) Shall be given moral and civic training by the
spouse's motion for reconsideration of its order dated April One last point regarding the matter of support for the
parents or guardian;
27, 1963, that . children — assuming that the custody of any or more of the
children will be finally awarded to the mother. Although the
(4) Has a right to live in an atmosphere conducive
... If the parties have agreed to file a joint petition, it was spouses have agreed upon the monthly support of P150 to
to his physical, moral and intellectual
because they wanted to avoid the exposure of the bitter be given by the petitioner spouse for each child, still this
development.
truths which serve as succulent morsel for scandal mongers Court must speak out its mind on the insufficiency of this
and idle gossipers and to save their children from amount. We, take judicial notice of the devaluation of the
embarrassment and inferiority complex which may It is clear that the abovequoted legal provision peso in 1962 and the steady skyrocketing of prices of all
inevitably stain their lives. .. grants to every child rights which are not and commodities, goods, and services, not to mention the fact
should not be dependent solely on the wishes, that all the children are already of school age. We believe,
much less the whims and caprices, of his parents. therefore, that the CFI may increase this amount of P150
If the parties agreed to submit the matter of custody of the
His welfare should not be subject to the parents' according to the needs of each child.
minor children to the Court for incorporation in the final
say-so or mutual agreement alone. Where, as in
judgment, they purposely suppressed the "compelling
this case, the parents are already separated in fact,
reasons for such measure" from appearing in the public With the view that we take of this case, we find it
the courts must step in to determine in whose
records. This is for the sake and for the welfare of the minor unnecessary to pass upon the other errors assigned in the
custody the child can better be assured the right
children.". three appeals.
granted to him by law. The need, therefore, to
present evidence regarding this matter, becomes
But the foregoing statement is at best a mere hint that there imperative. A careful scrutiny of the records ACCORDINGLY, the decision dated May 11, 1964 and the
were compelling reasons. The lower court's order is reveals that no such evidence was introduced in resolution dated July 31, 1964 of the Court of Appeals in
eloquently silent on what these compelling reasons are. the CFI. This latter court relied merely on the CA-G.R. 32384-R (subject matter of G.R. L-23482), and the
Needless to state, courts cannot proceed on mere mutual agreement of the spouses-parents. To be orders dated May 28, 1963 and June 24, 1963 of the
insinuations; they must be confronted with facts before they sure, this was not a sufficient basis to determine Juvenile and Domestic Relations Court (subject matter of
can properly adjudicate. the fitness of each parent to be the custodian of G.R. L-23767) are affirmed. G.R. L-24259 is hereby
the children. remanded to the Court of First Instance of Negros
It might be argued — and correctly — that since five years Occidental for further proceedings, in accordance with this
have elapsed since the filing of these cases in 1963, the decision. No pronouncement as to costs.
Besides, at least one of the children — Enrique,
ages of the four children should now be as follows: Enrique the eldest — is now eleven years of age and
— 11, Maria Teresa — 10, Gerrard — 9, and Ramon — 5. should be given the choice of the parent he wishes G.R. No. 127406 November 27, 2000
Therefore, the issue regarding the award of the custody of to live with. This is the clear mandate of sec. 6,
Enrique and Maria Teresa to the petitioner spouse has Rule 99 of the Rules of Court which, states, inter OFELIA P. TY, petitioner,
become moot and academic. The passage of time has alia: vs.
removed the prop which supports the respondent spouse's THE COURT OF APPEALS, and EDGARDO M.
position. REYES, respondents.
... When husband and wife are divorced or living
separately and apart from each other, and the
Nonetheless, this Court is loath to uphold the couple's question as to the care, custody, and control of a DECISION
agreement regarding the custody of the child or children of their marriage is brought before
children. 1äwphï1.ñët a Court of First Instance by petition or as an QUISUMBING, J.:
incident to any other proceeding, the court, upon
Article 356 of the new Civil Code provides: hearing testimony as may be pertinent, shall award
This appeal seeks the reversal of the decision dated July 24,
the care, custody and control of each such child as
1996, of the Court of Appeals in C.A. – G.R. CV 37897,
Every child: will be for its best interest permitting the child to
which affirmed the decision of the Regional Trial Court of
Pasig, Branch 160, declaring the marriage contract between sufficient proof of the facts therein. The fact that 2. Plaintiff-appellant Eduardo M. Reyes is ordered to give
private respondent Edgardo M. Reyes and petitioner Ofelia the civil marriage of private respondent and monthly support in the amount of P15,000.00 to his children
P. Ty null and void ab initio. It also ordered private petitioner took place on April 4, 1979, before the Faye Eloise Reyes and Rachel Anne Reyes from November
respondent to pay P15,000.00 as monthly support for their judgment declaring his prior marriage as null 4, 1991; and
children Faye Eloise Reyes and Rachel Anne Reyes. and void is undisputed. It also appears
indisputable that private respondent and petitioner 3. Cost against plaintiff-appellant Eduardo M. Reyes.
As shown in the records of the case, private respondent had a church wedding ceremony on April 4, 1982.1
married Anna Maria Regina Villanueva in a civil ceremony SO ORDERED.2
on March 29, 1977, in Manila. Then they had a church The Pasig RTC sustained private respondent’s
wedding on August 27, 1977. However, on August 4, 1980, civil suit and declared his marriage to herein
Petitioner’s motion for reconsideration was denied. Hence,
the Juvenile and Domestic Relations Court of Quezon City petitioner null and void ab initio in its decision
this instant petition asserting that the Court of Appeals
declared their marriage null and void ab initio for lack of a dated November 4, 1991. Both parties appealed to
erred:
valid marriage license. The church wedding on August 27, respondent Court of Appeals. On July 24, 1996,
1977, was also declared null and void ab initio for lack of the appellate court affirmed the trial court’s
consent of the parties. decision. It ruled that a judicial declaration of nullity I.
of the first marriage (to Anna Maria) must first be
Even before the decree was issued nullifying his marriage secured before a subsequent marriage could be BOTH IN THE DECISION AND THE RESOLUTION, IN
to Anna Maria, private respondent wed Ofelia P. Ty, herein validly contracted. Said the appellate court: REQUIRING FOR THE VALIDITY OF PETITIONER’S
petitioner, on April 4, 1979, in ceremonies officiated by the MARRIAGE TO RESPONDENT, A JUDICIAL DECREE
judge of the City Court of Pasay. On April 4, 1982, they also We can accept, without difficulty, the doctrine cited NOT REQUIRED BY LAW.
had a church wedding in Makati, Metro Manila. by defendant’s counsel that ‘no judicial decree is
necessary to establish the invalidity of void II
On January 3, 1991, private respondent filed a Civil Case marriages.’ It does not say, however, that a
1853-J with the RTC of Pasig, Branch 160, praying that his second marriage may proceed even without a IN THE RESOLUTION, IN APPLYING THE RULING
marriage to petitioner be declared null and void. He alleged judicial decree. While it is true that if a marriage is IN DOMINGO VS. COURT OF APPEALS.
that they had no marriage license when they got married. null and void, ab initio, there is in fact no subsisting
He also averred that at the time he married petitioner, he marriage, we are unwilling to rule that the matter of
III
was still married to Anna Maria. He stated that at the time whether a marriage is valid or not is for each
he married petitioner the decree of nullity of his marriage to married spouse to determine for himself – for this
would be the consequence of allowing a spouse to IN BOTH THE DECISION AND RESOLUTION IN NOT
Anna Maria had not been issued. The decree of nullity of his
proceed to a second marriage even before a CONSIDERING THE CIVIL EFFECTS OF THE
marriage to Anna Maria was rendered only on August 4,
competent court issues a judicial decree of nullity RELIGIOUS RATIFICATION WHICH USED THE SAME
1980, while his civil marriage to petitioner took place on
of his first marriage. The results would be MARRIAGE LICENSE.
April 4, 1979.
disquieting, to say the least, and could not have
been the intendment of even the now-repealed IV
Petitioner, in defending her marriage to private respondent,
provisions of the Civil Code on marriage.
pointed out that his claim that their marriage was contracted
without a valid license is untrue. She submitted their IN THE DECISION NOT GRANTING MORAL AND
Marriage License No. 5739990 issued at Rosario, Cavite on xxx EXEMPLARY DAMAGES TO THE
April 3, 1979, as Exh. 11, 12 and 12-A. He did not question DEFENDANT-APPELLANT.
this document when it was submitted in evidence. Petitioner WHEREFORE, upon the foregoing ratiocination,
also submitted the decision of the Juvenile and Domestic We modify the appealed Decision in this wise: The principal issue in this case is whether the decree of
Relations Court of Quezon City dated August 4, 1980, nullity of the first marriage is required before a subsequent
which declared null and void his civil marriage to Anna 1. The marriage contracted by plaintiff-appellant marriage can be entered into validly? To resolve this
Maria Regina Villanueva celebrated on March 29, 1977, [herein private respondent] Eduardo M. Reyes and question, we shall go over applicable laws and pertinent
and his church marriage to said Anna Maria on August 27, defendant-appellant [herein petitioner] Ofelia P. Ty cases to shed light on the assigned errors, particularly the
1977. These documents were submitted as evidence during is declared null and void ab initio; first and the second which we shall discuss jointly.
trial and, according to petitioner, are therefore deemed
In sustaining the trial court, the Court of Appeals declared (1) The first marriage was annulled or dissolved; or proceeds of the retirement insurance of the husband. The
the marriage of petitioner to private respondent null Court observed that although the second marriage can be
and void for lack of a prior judicial decree of nullity of the (2) The first spouse had been absent for seven presumed to be void ab initio as it was celebrated while the
marriage between private respondent and Villanueva. The consecutive years at the time of the second first marriage was still subsisting, still there was a need for
appellate court rejected petitioner’s claim that People v. marriage without the spouse present having news judicial declaration of such nullity (of the second marriage).
Mendoza3 and People v. Aragon4 are applicable in this of the absentee being alive, or if the absentee, And since the death of the husband supervened before
case. For these cases held that where a marriage though he has been absent for less than seven such declaration, we upheld the right of the second wife to
is void from its performance, no judicial decree is necessary years, is generally considered as dead and before share in the estate they acquired, on grounds of justice and
to establish its invalidity. But the appellate court said these any person believed to be so by the spouse equity.14
cases, decided before the enactment of the Family Code present at the time of contracting such subsequent
(E.O. No. 209 as amended by E.O No. 227), no longer marriage, or if the absentee is presumed dead But in Odayat v. Amante (1977),15 the Court adverted
control. A binding decree is now needed and must be read according to articles 390 and 391. The marriage so to Aragon and Mendoza as precedents. We exonerated a
into the provisions of law previously obtaining.5 contracted shall be valid in any of the three cases clerk of court of the charge of immorality on the ground that
until declared null and void by a competent court. his marriage to Filomena Abella in October of 1948 was
In refusing to consider petitioner’s appeal favorably, the void, since she was already previously married to one
appellate court also said: As to whether a judicial declaration of nullity of a Eliseo Portales in February of the same year. The Court
void marriage is necessary, the Civil Code held that no judicial decree is necessary to establish the
Terre v. Attorney Terre, Adm. Case No. 2349, 3 July 1992 is contains no express provision to that effect. invalidity of void marriages. This ruling was affirmed
mandatory precedent for this case. Although decided by the Jurisprudence on the matter, however, appears to in Tolentino v. Paras.16
High Court in 1992, the facts situate it within the regime of be conflicting.
the now-repealed provisions of the Civil Code, as in the Yet again in Wiegel v. Sempio-Diy (1986),17 the Court held
instant case. Originally, in People v. Mendoza,10 and People v. that there is a need for a judicial declaration of nullity of a
Aragon,11 this Court held that no judicial decree is void marriage. In Wiegel, Lilia married Maxion in 1972. In
xxx necessary to establish the nullity of a void 1978, she married another man, Wiegel. Wiegel filed a
marriage. Both cases involved the same factual petition with the Juvenile Domestic Relations Court to
milieu. Accused contracted a second marriage declare his marriage to Lilia as void on the ground of her
For purposes of determining whether a person is legally free
during the subsistence of his first marriage. After previous valid marriage. The Court, expressly relying
to contract a second marriage, a judicial declaration that the
the death of his first wife, accused contracted a on Consuegra, concluded that:18
first marriage was null and void ab initio is essential. . . .6
third marriage during the subsistence of the
second marriage. The second wife initiated a There is likewise no need of introducing evidence about the
At the outset, we must note that private respondent’s first
complaint for bigamy. The Court acquitted existing prior marriage of her first husband at the time they
and second marriages contracted in 1977 and 1979,
accused on the ground that the second marriage is married each other, for then such a marriage though void
respectively, are governed by the provisions of the Civil
void, having been contracted during the existence still needs according to this Court a judicial declaration
Code. The present case differs significantly from the recent
of the first marriage. There is no need for a judicial (citing Consuegra) of such fact and for all legal intents and
cases of Bobis v. Bobis7 and Mercado v. Tan,8 both
declaration that said second marriage is void. purposes she would still be regarded as a married woman
involving a criminal case for bigamy where the bigamous
Since the second marriage is void, and the first at the time she contracted her marriage with respondent
marriage was contracted during the effectivity of the Family
one terminated by the death of his wife, there are Karl Heinz Wiegel; accordingly, the marriage of petitioner
Code,9 under which a judicial declaration of nullity of
no two subsisting valid marriages. Hence, there and respondent would be regarded VOID under the law.
marriage is clearly required.
can be no bigamy. Justice Alex Reyes dissented in (Emphasis supplied).
both cases, saying that it is not for the spouses but
Pertinent to the present controversy, Article 83 of the Civil the court to judge whether a marriage is void or In Yap v. Court of Appeals,19 however, the Court found the
Code provides that: not. second marriage void without need of judicial declaration,
thus reverting to the Odayat, Mendoza and Aragon rulings.
Art. 83. Any marriage subsequently contracted by any In Gomez v. Lipana,12 and Consuegra v.
person during the lifetime of the first spouse of such person Consuegra,13 however, we recognized the right of At any rate, the confusion under the Civil Code was put to
with any person other than such first spouse shall be illegal the second wife who entered into the marriage in rest under the Family Code. Our rulings in Gomez,
and void from its performance, unless: good faith, to share in their acquired estate and in
Consuegra, and Wiegel were eventually embodied in Article need for a judicial declaration of nullity of the first due consideration and weight. She adds that the interest of
40 of the Family Code.20 Article 40 of said Code expressly marriage pursuant to prevailing jurisprudence at the State in protecting the inviolability of marriage, as a
required a judicial declaration of nullity of marriage – that time. legal and social institution, outweighs such technicality. In
our view, petitioner and private respondent had complied
Art. 40. The absolute nullity of a previous marriage may be Similarly, in the present case, the second marriage with all the essential and formal requisites for a valid
invoked for purposes of remarriage on the basis solely of a of private respondent was entered into in 1979, marriage, including the requirement of a valid license in the
final judgment declaring such previous marriage void. before Wiegel. At that time, the prevailing rule was first of the two ceremonies. That this license was used
found in Odayat, Mendoza and Aragon. The first legally in the celebration of the civil ceremony does not
marriage of private respondent being void for lack detract from the ceremonial use thereof in the church
In Terre v. Terre (1992)21 the Court, applying Gomez,
of license and consent, there was no need for wedding of the same parties to the marriage, for we hold
Consuegra and Wiegel, categorically stated that a judicial
judicial declaration of its nullity before he could that the latter rites served not only to ratify but also to fortify
declaration of nullity of a void marriage is necessary. Thus,
contract a second marriage. In this case, therefore, the first. The appellate court might have its reasons for
we disbarred a lawyer for contracting a bigamous marriage
we conclude that private respondent’s second brushing aside this possible defense of the defendant below
during the subsistence of his first marriage. He claimed that
marriage to petitioner is valid. which undoubtedly could have tendered a valid issue, but
his first marriage in 1977 was void since his first wife was
which was not timely interposed by her before the trial court.
already married in 1968. We held that Atty. Terre should
But we are now persuaded we cannot play blind to the
have known that the prevailing case law is that "for Moreover, we find that the provisions of the Family
absurdity, if not inequity, of letting the wrongdoer profit from
purposes of determining whether a person is legally free to Code cannot be retroactively applied to the
what the CA calls "his own deceit and perfidy."
contract a second marriage, a judicial declaration that the present case, for to do so would prejudice the
first marriage was null and void ab initio is essential." vested rights of petitioner and of her children. As
held in Jison v. Court of Appeals,25 the Family On the matter of petitioner’s counterclaim for damages and
Code has retroactive effect unless there be attorney’s fees.1âwphi1 Although the appellate court
The Court applied this ruling in subsequent cases.
impairment of vested rights. In the present case, admitted that they found private respondent acted
In Domingo v. Court of Appeals (1993),22 the Court held:
that impairment of vested rights of petitioner and "duplicitously and craftily" in marrying petitioner, it did not
the children is patent. Additionally, we are not quite award moral damages because the latter did not adduce
Came the Family Code which settled once and for all the evidence to support her claim.26
prepared to give assent to the appellate court’s
conflicting jurisprudence on the matter. A declaration of
finding that despite private respondent’s "deceit
absolute nullity of marriage is now explicitly required either
and perfidy" in contracting marriage with petitioner, Like the lower courts, we are also of the view that no
as a cause of action or a ground for defense. (Art. 39 of the
he could benefit from her silence on the issue. damages should be awarded in the present case, but for
Family Code). Where the absolute nullity of a previous
Thus, coming now to the civil effects of the church another reason. Petitioner wants her marriage to private
marriage is sought to be invoked for purposes of contracting
ceremony wherein petitioner married private respondent held valid and subsisting. She is suing to
a second marriage, the sole basis acceptable in law for said
respondent using the marriage license used three maintain her status as legitimate wife. In the same breath,
projected marriage to be free from legal infirmity is a final
years earlier in the civil ceremony, we find that she asks for damages from her husband for filing a
judgment declaring the previous marriage void. (Family
petitioner now has raised this matter properly. baseless complaint for annulment of their marriage which
Code, Art. 40; See also arts. 11, 13, 42, 44, 48, 50, 52, 54,
Earlier petitioner claimed as untruthful private caused her mental anguish, anxiety, besmirched reputation,
86, 99, 147, 148).23
respondent’s allegation that he wed petitioner but social humiliation and alienation from her parents. Should
they lacked a marriage license. Indeed we find we grant her prayer, we would have a situation where the
However, a recent case applied the old rule because of the there was a marriage license, though it was the husband pays the wife damages from conjugal or common
peculiar circumstances of the case. In Apiag v. Cantero, same license issued on April 3, 1979 and used in funds. To do so, would make the application of the law
(1997)24 the first wife charged a municipal trial judge of both the civil and the church rites. Obviously, the absurd. Logic, if not common sense, militates against such
immorality for entering into a second marriage. The judge church ceremony was confirmatory of their civil incongruity. Moreover, our laws do not comprehend an
claimed that his first marriage was void since he was merely marriage. As petitioner contends, the appellate action for damages between husband and wife merely
forced into marrying his first wife whom he got pregnant. On court erred when it refused to recognize the because of breach of a marital obligation.27 There are other
the issue of nullity of the first marriage, we validity and salutary effects of said canonical remedies.28
applied Odayat, Mendoza and Aragon. We held that since marriage on a technicality, i.e. that petitioner had
the second marriage took place and all the children failed to raise this matter as affirmative defense WHEREFORE, the petition is GRANTED. The assailed
thereunder were born before the promulgation during trial. She argues that such failure does not Decision of the Court of Appeals dated July 24, 1996 and its
of Wiegel and the effectivity of the Family Code, there is no prevent the appellate court from giving her defense Resolution dated November 7, 1996, are reversed partially,
so that the marriage of petitioner Ofelia P. Ty and private As a ground of their appeal, the appellants Aleko E. Manila in their Studebaker car — driven by the said plaintiff
respondent Edgardo M. Reyes is hereby DECLARED Lilius et al., in turn, assign two alleged errors as Aleko E. Lilius — for the municipality of Pagsanjan,
VALID AND SUBSISTING; and the award of the amount of committed by the same court a quo in its judgment Province of Laguna, on a sight-seeing trip. It was the first
P15,000.00 is RATIFIED and MAINTAINED as monthly in question, which will be discussed later. time that he made said trip although he had already been to
support to their two children, Faye Eloise Reyes and Rachel many places, driving his own car, in and outside the
Anne Reyes, for as long as they are of minor age or This case originated from a complaint filed by Philippines. Where the road was clear and unobstructed,
otherwise legally entitled thereto. Costs against private Aleko E. Lilius et al., praying, under the facts the plaintiff drove at the rate of from 19 to 25 miles an hour.
respondent. therein alleged, that the Manila Railroad Company Prior thereto, he had made the trip as far as Calauan, but
be ordered to pay to said plaintiffs, by way of never from Calauan to Pagsanjan, via Dayap. He was
SO ORDERED. indemnity for material and moral damages entirely unacquainted with the conditions of the road at said
suffered by them through the fault and negligence points and had no knowledge of the existence of a railroad
of the said defendant entity's employees, the sum crossing at Dayap. Before reaching the crossing in question,
G.R. No. L-39587 March 24, 1934
of P50,000 plus legal interest thereon from the there was nothing to indicate its existence and inasmuch as
date of the filing of the complaint, with costs. there were many houses, shrubs and trees along the road,
ALEKO E. LILIUS, ET AL., plaintiffs-appellants, it was impossible to see an approaching train. At about
vs. seven or eight meters from the crossing, coming from
THE MANILA RAILROAD The defendant the Manila Railroad Company,
Calauan, the plaintiff saw an autotruck parked on the left
COMPANY, defendant-appellant. answering the complaint, denies each and every
side of the road. Several people, who seemed to have
allegation thereof and, by way of special defense,
alighted from the said truck, were walking on the opposite
alleges that the plaintiff Aleko E. Lilius, with the
Harvey and O'Brien for plaintiffs-appellants. side. He slowed down to about 12 miles an hour and
cooperation of his wife and coplaintiff, negligently
Jose C. Abreu for defendant-appellant. sounded his horn for the people to get out of the way. With
and recklessly drove his car, and prays that it be
his attention thus occupied, he did not see the crossing but
absolved from the complaint.
VILLA-REAL, J.: he heard two short whistles. Immediately afterwards, he
saw a huge black mass fling itself upon him, which turned
The following facts have been proven at the trial, out to be locomotive No. 713 of the defendant company's
This case involves two appeals, one by the defendant the some without question and the others by a train coming eastward from Bay to Dayap station. The
Manila Railroad Company, and the other by the plaintiffs preponderance of evidence, to wit: locomotive struck the plaintiff's car right in the center. After
Aleko E. Lilius et al., from the judgment rendered by the
dragging the said car a distance of about ten meters, the
Court of First Instance of Manila, the dispositive part of
The plaintiff Aleko E. Lilius has, for many years, locomotive threw it upon a siding. The force of the impact
which reads as follows:
been a well-known and reputed journalist, author was so great that the plaintiff's wife and daughter were
and photographer. At the time of the collision in thrown from the car and were picked up from the ground
Wherefore, judgment is rendered ordering the defendant question, he was a staff correspondent in the Far unconscious and seriously hurt. In spite of the efforts of
company to pay to the plaintiffs, for the purposes above East of the magazines The American Weekly of engineer Andres Basilio, he was unable to stop the
stated, the total amount of P30,865, with the costs of the New York and The Sphere of London. locomotive until after it had gone about seventy meters from
suit. And although the suit brought by the plaintiffs has the the crossing.
nature of a joint action, it must be understood that of the
Some of his works have been translated into
amount adjudicated to the said plaintiffs in this judgment,
various languages. He had others in preparation On the afternoon of the same day, the plaintiff's entered St.
the sum of P10,000 personally belongs to the plaintiff Sonja
when the accident occurred. According to him, his Paul's Hospital in the City of Manila where they were treated
Maria Lilius; the sum of P5,000, to the plaintiff Brita
writings netted him a monthly income of P1,500. by Dr. Waterous. The plaintiff Aleko E. Lilius suffered from a
Marianne Lilius; the sum of P250, to Dr. Marfori of the
He utilized the linguistic ability of his wife Sonja fractured nose, a contusion above the left eye and a
Calauan Hospital, Province of Laguna, and the balance to
Maria Lilius, who translated his articles and books lacerated wound on the right leg, in addition to multiple
the plaintiff Aleko E. Lilius.
into English, German, and Swedish. Furthermore, contusions and scratches on various parts of the body. As a
she acted as his secretary. result of the accident, the said plaintiff was highly nervous
In support of its appeal, the appellant the Manila Railroad and very easily irritated, and for several months he had
Company assigns nine alleged errors committed by the trial great difficulty in concentrating his attention on any matter
At about 7 o'clock on the morning of May 10, 1931,
court in its said judgment, which will be discussed in the and could not write articles nor short stories for the
the plaintiff, his wife Sonja Maria Lilius, and his
course of this decision.
4-year old daughter Brita Marianne Lilius, left
newspapers and magazines to which he was a contributor, in order that they might take the necessary ending, driving his car at a speed which prudence
thus losing for some time his only means of livelihood. precautions before crossing the railroad; and, on demanded according to the circumstances and conditions
the part of its employees — the flagman and of the road, slackening his speed in the face of an obstacle
The plaintiff Sonja Maria Lilius suffered from fractures of the switchman, for not having remained at his post at and blowing his horn upon seeing persons on the road, in
pelvic bone, the tibia and fibula of the right leg, below the the crossing in question to warn passers-by of the order to warn them of his approach and request them to get
knee, and received a large lacerated wound on the approaching train; the stationmaster, for failure to out of the way, as he did when he came upon the truck
forehead. She underwent two surgical operations on the left send the said flagman and switchman to his post parked on the left hand side of the road seven or eight
leg for the purpose of joining the fractured bones but said on time; and the engineer, for not having taken the meters from the place where the accident occurred, and
operations notwithstanding, the leg in question still necessary precautions to avoid an accident, in upon the persons who appeared to have alighted from the
continues deformed. In the opinion of Dr. Waterous, the view of the absence of said flagman and said truck. If he failed to stop, look and listen before going
deformity is permanent in character and as a result the switchman, by slackening his speed and over the crossing, in spite of the fact that he was driving at
plaintiff will have some difficulty in walking. The lacerated continuously ringing the bell and blowing the 12 miles per hour after having been free from obstacles, it
wound, which she received on her forehead, has left a whistle before arriving at the crossing. Although it was because, his attention having been occupied in
disfiguring scar. is probable that the defendant-appellant entity attempting to go ahead, he did not see the crossing in
employed the diligence of a good father of a family question, nor anything, nor anybody indicating its existence,
in selecting its aforesaid employees, however, it as he knew nothing about it beforehand. The first and only
The child Brita Marianne Lilius received two lacerated
did not employ such diligence in supervising their warning, which he received of the impending danger, was
wounds, one on the forehead and the other on the left side
work and the discharge of their duties because, two short blows from the whistle of the locomotive
of the face, in addition to fractures of both legs, above and
otherwise, it would have had a semaphore or sign immediately preceding the collision and when the accident
below the knees. Her condition was serious and, for several
at the crossing and, on previous occasions as well had already become inevitable.
days, she was hovering between life and death. Due to a
as on the night in question, the flagman and
timely and successful surgical operation, she survived her
switchman would have always been at his post at In view of the foregoing considerations, this court is of the
wounds. The lacerations received by the child have left
the crossing upon the arrival of a train. The opinion that the defendant the Manila Railroad Company
deep scars which will permanently disfigure her face, and
diligence of a good father of a family, which the law alone is liable for the accident by reason of its own
because of the fractures of both legs, although now
requires in order to avoid damage, is not confined negligence and that of its employees, for not having
completely cured, she will be forced to walk with some
to the careful and prudent selection of employed the diligence of a good father of a family in the
difficulty and continuous extreme care in order to keep her
subordinates or employees but includes inspection supervision of the said employees in the discharge of their
balance.
of their work and supervision of the discharge of duties.
their duties.
Prior to the accident, there had been no notice nor sign of
the existence of the crossing, nor was there anybody to The next question to be decided refers to the sums of
However, in order that a victim of an accident may money fixed by the court a quo as indemnities for damages
warn the public of approaching trains. The flagman or
recover indemnity for damages from the person which the defendant company should pay to the
switchman arrived after the collision, coming from the
liable therefor, it is not enough that the latter has plaintiffs-appellants.
station with a red flag in one hand and a green one in the
been guilty of negligence, but it is also necessary
other, both of which were wound on their respective sticks.
that the said victim has not, through his own
The said flagman and switchman had many times absented With respect to the plaintiff-appellant Aleko E. Lilius,
negligence, contributed to the accident, inasmuch
himself from his post at the crossing upon the arrival of a although this court believes his claim of a net income of
as nobody is a guarantor of his neighbor's
train. The train left Bay station a little late and therefore P1,500 a month to be somewhat exaggerated, however, the
personal safety and property, but everybody
traveled at great speed. sum of P5,000, adjudicated to him by the trial court as
should look after them, employing the care and
indemnity for damages, is reasonable.
diligence that a good father of a family should
Upon examination of the oral as well as of the documentary apply to his own person, to the members of his
evidence which the parties presented at the trial in support family and to his property, in order to avoid any As to the sum of P10,635 which the court awards to the
of their respective contentions, and after taking into damage. It appears that the herein plaintiffs by way of indemnity for damages, the different
consideration all the circumstances of the case, this court is plaintiff-appellant Aleko E. Lilius took all items thereof representing doctor's fees, hospital and
of the opinion that the accident was due to negligence on precautions which his skill and the presence of his nursing services, loss of personal effects and torn clothing,
the part of the defendant-appellant company, for not having wife and child suggested to him in order that his have duly been proven at the trial and the sum in question is
had on that occasion any semaphore at the crossing at pleasure trip might be enjoyable and have a happy not excessive, taking into consideration the circumstances
Dayap, to serve as a warning to passers-by of its existence in which the said expenses have been incurred.
Taking into consideration the fact that the plaintiff Sonja As to the amount of P10,000 claimed by the difficult to assume, by virtue of the marriage alone, that she
Maria Lilius, wife of the plaintiff Aleko E. Lilius is — in the plaintiff Aleko E. Lilius as damages for the loss of performed all the said tasks and her physical incapacity
language of the court, which saw her at the trial — "young his wife's services in his business as journalist and always redounded to the husband's prejudice inasmuch as
and beautiful and the big scar, which she has on her author, which services consisted in going over his it deprived him of her assistance. However, nowadays when
forehead caused by the lacerated wound received by her writings, translating them into English, German women, in their desire to be more useful to society and to
from the accident, disfigures her face and that the fracture and Swedish, and acting as his secretary, in the nation, are demanding greater civil rights and are
of her left leg has caused a permanent deformity which addition to the fact that such services formed part aspiring to become man's equal in all the activities of life,
renders it very difficult for her to walk", and taking into of the work whereby he realized a net monthly commercial and industrial, professional and political, many
further consideration her social standing, neither is the sum income of P1,500, there is no sufficient evidence of them spending their time outside the home, engaged in
of P10,000, adjudicated to her by the said trial court by way of the true value of said services nor to the effect their businesses, industry, profession and within a short
of indemnity for patrimonial and moral damages, excessive. that he needed them during her illness and had to time, in politics, and entrusting the care of their home to a
In the case of Gutierrez vs. Gutierrez (56 Phil., 177), the employ a translator to act in her stead. housekeeper, and their children, if not to a nursemaid, to
right leg of the plaintiff Narciso Gutierrez was fractured as a public or private institutions which take charge of young
result of a collision between the autobus in which he was The plaintiff Aleko E. Lilius also seeks to recover children while their mothers are at work, marriage has
riding and the defendant's car, which fractured required the sum of P2,500 for the loss of what is called ceased to create the presumption that a woman complies
medical attendance for a considerable period of time. On Anglo-Saxon common law "consortium" of his wife, with the duties to her husband and children, which the law
the day of the trial the fracture had not yet completely that is, "her services, society and conjugal imposes upon her, and he who seeks to collect indemnity
healed but it might cause him permanent lameness. The companionship", as a result of personal injuries for damages resulting from deprivation of her domestic
trial court sentenced the defendants to indemnify him in the which she had received from the accident now services must prove such services. In the case under
sum of P10,000 which this court reduced to P5,000, in spite under consideration. consideration, apart from the services of his wife Sonja
of the fact that the said plaintiff therein was neither young Maria Lilius as translator and secretary, the value of which
nor good-looking, nor had he suffered any facial deformity, has not been proven, the plaintiff Aleko E. Lilius has not
In the case of Goitia vs. Campos Rueda (35 Phil.,
nor did he have the social standing that the herein presented any evidence showing the existence of domestic
252, 255, 256), this court, interpreting the
plaintiff-appellant Sonja Maria Lilius enjoys.1ªvvphi1.ne+ services and their nature, rendered by her prior to the
provisions of the Civil Marriage Law of 1870, in
accident, in order that it may serve as a basis in estimating
force in these Islands with reference to the mutual
As to the indemnity of P5,000 in favor of the child Brita their value.
rights and obligations of the spouses, contained in
Marianne Lilius, daughter of Aleko E. Lilius and Sonja Maria articles 44-48 thereof, said as follows:
Lilius, neither is the same excessive, taking into Furthermore, inasmuch as a wife's domestic assistance and
consideration the fact that the lacerations received by her conjugal companionship are purely personal and voluntary
The above quoted provisions of the Law of Civil
have left deep scars that permanently disfigure her face and acts which neither of the spouses may be compelled to
Marriage and the Civil Code fix the duties and
that the fractures of both her legs permanently render it render (Arroyo vs. Vazquez de Arroyo, 42 Phil., 54), it is
obligations of the spouses. The spouses must be
difficult for her to walk freely, continuous extreme care being necessary for the party claiming indemnity for the loss of
faithful to, assist, and support each other. The
necessary in order to keep her balance in addition to the such services to prove that the person obliged to render
husband must live with and protect his wife. The
fact that all of this unfavorably and to a great extent affect them had done so before he was injured and that he would
wife must obey and live with her husband and
her matrimonial future. be willing to continue rendering them had he not been
follow him when he changes his domicile or
prevented from so doing.
residence, except when he removes to a foreign
With respect to the plaintiffs' appeal, the first question to be country. . . .
decided is that raised by the plaintiff Aleko E. Lilius relative In view of the foregoing considerations this court is of the
to the insufficiency of the sum of P5,000 which the trial court opinion and so holds: (1) That a railroad company which
Therefore, under the law and the doctrine of this
adjudicated to him by way of indemnity for damages has not installed a semaphore at a crossing an does not see
court, one of the husband's rights is to count on his
consisting in the loss of his income as journalist and author to it that its flagman and switchman faithfully complies with
wife's assistance. This assistance comprises the
as a result of his illness. This question has impliedly been his duty of remaining at the crossing when a train arrives, is
management of the home and the performance of
decided in the negative when the defendant-appellant guilty of negligence and is civilly liable for damages suffered
household duties, including the care and education
entity's petition for the reduction of said indemnity was by a motorist and his family who cross its line without
of the children and attention to the husband upon
denied, declaring it to be reasonable. negligence on their part; (2) that an indemnity of P10,000
whom primarily devolves the duty of supporting the
for a permanent deformity on the face and on the left leg,
family of which he is the head. When the wife's
suffered by a young and beautiful society woman, is not
mission was circumscribed to the home, it was not
excessive; (3) that an indemnity of P5,000 for a permanent "c) By means of fraudulent machination or grave "3) When the rape is committed in full view of the spouse,
deformity on the face and legs of a four-year old girl abuse of authority; and parent, any of the children or other relatives within the third
belonging to a well-to-do family, is not excessive; and (4) civil degree of consanguinity;
that in order that a husband may recover damages for "d) When the offended party is under twelve (12)
deprivation of his wife's assistance during her illness from years of age or is demented, even though none of "4) When the victim is a religious engaged in legitimate
an accident, it is necessary for him to prove the existence of the circumstances mentioned above be present. religious vocation or calling and is personally known to be
such assistance and his wife's willingness to continue such by the offender before or at the time of the commission
rendering it had she not been prevented from so doing by "2) By any person who, under any of the of the crime;
her illness. circumstances mentioned in paragraph 1 hereof,
shall commit an act of sexual assault by inserting "5) When the victim is a child below seven (7) years old;
his penis into another person's mouth or anal
The plaintiffs-appellants are entitled to interest of 6 percent
orifice, or any instrument or object, into the genital "6) When the offender knows that he is afflicted with the
per annum on the amount of the indemnities adjudicated to
or anal orifice of another person. Human Immuno-Deficiency Virus (HIV)/Acquired Immune
them, from the date of the appealed judgment until this
judgment becomes final, in accordance with the provisions Deficiency Syndrome (AIDS) or any other sexually
"Article 266-B. Penalty. - Rape under paragraph 1 transmissible disease and the virus or disease is
of section 510 of Act No. 190.
of the next preceding article shall be punished by transmitted to the victim;
reclusion perpetua.
Wherefore, not finding any error in the judgment appealed
"7) When committed by any member of the Armed Forces of
from, it is hereby affirmed in toto, with the sole modification "Whenever the rape is committed with the use of a the Philippines or para-military units thereof or the
that interest of 6 per cent per annum from the date of the deadly weapon or by two or more persons, the Philippine National Police or any law enforcement agency
appealed judgment until this judgment becomes final will be penalty shall be reclusion perpetua to death. or penal institution, when the offender took advantage of his
added to the indemnities granted, with the costs of both
position to facilitate the commission of the crime;
instances against the appellant. So ordered. "When by reason or on the occasion of the rape,
the victim has become insane, the penalty shall "8) When by reason or on the occasion of the rape,
Section 1. Short Title. - This Act shall be known as "The become reclusion perpetua to death. the victim has suffered permanent physical mutilation or
Anti-Rape Law of 1997." disability;
"When the rape is attempted and a homicide is
Sec. 2. Rape as a Crime Against Persons. - The crime of committed by reason or on the occasion thereof, "9) When the offender knew of the pregnancy of the
rape shall hereafter be classified as a Crime Against the penalty shall be reclusion perpetua to death. offended party at the time of the commission of the crime;
Persons under Title Eight of Act No. 3815, as amended, and
otherwise known as the Revised Penal Code. Accordingly, "When by reason or on the occasion ofthe rape,
there shall be incorporated into Title Eight of the same Code homicide is committed, the penalty shall be death. "10) When the offender knew of the mental disability,
a new chapter to be known as Chapter Three on Rape, to emotional disorder and/or physical handicap of the offended
read as follows: "The death penalty shall also be imposed if the party at the time of the commission of the crime.
crime of rape is committed with any of the following
"Chapter Three aggravating/qualifying circumstances:
"Rape "Rape under paragraph 2 of the next preceding article shall
be punished by prision mayor.
"Article 266-A. Rape: When And How Committed. - "l) When the victim is under eighteen (18) years of
Rape is committed: age and the offender is a parent, ascendant, "Whenever the rape is committed with the use of a deadly
step-parent, guardian, relative by consanguinity or weapon or by two or more persons, the penalty shall be
"1) By a man who shall have carnal knowledge of a affinity within the third civil degree, or the prision mayor to reclusion temporal.
woman under any of the following circumstances: common-law spouse of the parent of the victim;
"a) Through force, threat, or intimidation; "When by reason or on the occasion of the rape, the victim
"2) When the victim is under the custody of the has become insane, the penalty shall be reclusion temporal.
police or military authorities or any law
"b) When the offended party is deprived of reason or
enforcement or penal institution; "When the rape is attempted and a homicide is committed
otherwise unconscious;
by reason or on the occasion thereof, the penalty shall be
reclusion temporal to reclusion perpetua. consent of the other. The latter may object only on Corporation, et. al.," docketed as CA-G.R. CV No.
valid, serious, and moral grounds. 29632,1 upholding the decision of the Regional Trial Court
"When by reason or on the occasion ofthe rape, homicide is of Pasig, Branch 168, which ruled that the conjugal
committed, the penalty shall be reclusion perpetua. In case of disagreement, the court shall decide partnership of gains of respondents-spouses Alfredo and
whether or not: Encarnacion Ching is not liable for the payment of the debts
"Reclusion temporal shall be imposed if the rape is secured by respondent-husband Alfredo Ching.
(1) The objection is proper; and
committed with any of the ten aggravating/ qualifying
circumstances mentioned in this article. (2) Benefit has occurred to the family prior to the A chronology of the essential antecedent facts is necessary
objection or thereafter. If the benefit accrued prior for a clear understanding of the case at bar.
"Article 266-C. Effect of Pardon. - The subsequent valid to the objection, the resulting obligation shall be
marriage between the offended party shall extinguish the enforced against the separate property of the Philippine Blooming Mills (hereinafter referred to as PBM)
criminal action or the penalty imposed. spouse who has not obtained consent. obtained a P50,300,000.00 loan from petitioner Ayala
The foregoing provisions shall not prejudice the Investment and Development Corporation (hereinafter
"In case it is the legal husband who is the offender, the
rights of creditors who acted in good faith. (117a) referred to as AIDC). As added security for the credit line
subsequent forgiveness by the wife as the offended party
extended to PBM, respondent Alfredo Ching, Executive
shall extinguish the criminal action or the penalty: Provided,
Vice President of PBM, executed security agreements on
That the crime shall not be extinguished or the penalty shall
December 10, 1980 and on March 20, 1981 making himself
not be abated if the marriage is void ab initio.
G.R. No. 118305 February 12, 1998 jointly and severally answerable with PBM's indebtedness
to AIDC.
"Article 266-D. Presumptions. - Any physical overt act
manifesting resistance against the act of rape in any degree AYALA INVESTMENT & DEVELOPMENT CORP.
from the offended party, or where the offended party is so and ABELARDO MAGSAJO, petitioners, PBM failed to pay the loan. Thus, on July 30, 1981, AIDC
situated as to render her/him incapable of giving valid vs. filed a case for sum of money against PBM and
consent, may be accepted as evidence in the prosecution of COURT OF APPEALS and SPOUSES ALFREDO respondent-husband Alfredo Ching with the then Court of
the acts punished under Article 266-A." & ENCARNACION CHING, respondents. First Instance of Rizal (Pasig), Branch VIII, entitled "Ayala
Investment and Development Corporation vs. Philippine
Blooming Mills and Alfredo Ching," docketed as Civil Case
Sec. 3. Separability Clause. - If any part, Sec., or provision No. 42228.
of this Act is declared invalid or unconstitutional, the other
parts thereof not affected thereby shall remain valid. MARTINEZ, J.:
After trial, the court rendered judgment ordering PBM and
respondent-husband Alfredo Ching to jointly and severally
Sec. 4. Repealing Clause. - Article 336 of Act No. 3815, as Under Article 161 of the Civil Code, what debts pay AIDC the principal amount of P50,300,000.00 with
amended, and all laws, acts, presidential decrees, and obligations contracted by the husband alone interests.
executive orders, administrative orders, rules and are considered "for the benefit of the conjugal
regulations inconsistent with or contrary to the provisions of partnership" which are chargeable against the
Pending appeal of the judgment in Civil Case No. 42228,
this Act are deemed amended, modified or repealed conjugal partnership? Is a surety agreement or an
upon motion of AIDC, the lower court issued a writ of
accordingly. accommodation contract entered into by the
execution pending appeal. Upon AIDC's putting up of an
husband in favor of his employer within the
P8,000,000.00 bond, a writ of execution dated May 12,
Sec. 5. Effectivity. - This Act shall take effect fifteen (15) contemplation of the said provision?
1982 was issued. Thereafter, petitioner Abelardo Magsajo,
days after completion of its publication in two (2)
Sr., Deputy Sheriff of Rizal and appointed sheriff in Civil
newspapers of general circulation. These are the issues which we will resolve in this Case No. 42228, caused the issuance and service upon
petition for review. respondents-spouses of a notice of sheriff sale dated May
20, 1982 on three (3) of their conjugal properties. Petitioner
The petitioner assails the decision dated April 14, Magsajo then scheduled the auction sale of the properties
1994 of the respondent Court of Appeals in levied.
Art. 73. Either spouse may exercise any legitimate
"Spouses Alfredo and Encarnacion Ching
profession, occupation, business or activity without the
vs. Ayala Investment and Development
On June 9, 1982, private respondents filed a case of two (2) of the real properties are actually in the The dispositive portion of the decision reads:
injunction against petitioners with the then Court of First name of Encarnacion Ching, a non-party to Civil
Instance of Rizal (Pasig), Branch XIII, to enjoin the auction Case No. 42228. WHEREFORE, in view of all the foregoing, judgment is
sale alleging that petitioners cannot enforce the judgment hereby rendered DISMISSING the appeal. The decision of
against the conjugal partnership levied on the ground that, The lower court denied the motion to dismiss. the Regional Trial Court is AFFIRMED in toto.6
among others, the subject loan did not redound to the Hence, trial on the merits proceeded. Private
benefit of the said conjugal partnership. 2 Upon application respondents presented several witnesses. On the Petitioner filed a Motion for Reconsideration which was
of private respondents, the lower court issued a temporary other hand, petitioners did not present any denied by the respondent court in a Resolution dated
restraining order to prevent petitioner Magsajo from evidence. November 28, 1994.7
proceeding with the enforcement of the writ of execution
and with the sale of the said properties at public auction.
On September 18, 1991, the trial court Hence, this petition for review. Petitioner contends that the
promulgated its decision declaring the sale on "respondent court erred in ruling that the conjugal
AIDC filed a petition for certiorari before the Court of execution null and void. Petitioners appealed to partnership of private respondents is not liable for the
Appeals,3 questioning the order of the lower court enjoining the respondent court, which was docketed as obligation by the respondent-husband."
the sale. Respondent Court of Appeals issued a Temporary CA-G.R. CV No. 29632.
Restraining Order on June 25, 1982, enjoining the lower
court4 from enforcing its Order of June 14, 1982, thus Specifically, the errors allegedly committed by the
On April 14, 1994, the respondent court respondent court are as follows:
paving the way for the scheduled auction sale of
promulgated the assailed decision, affirming the
respondents-spouses conjugal properties.
decision of the regional trial court. It held that:
I. RESPONDENT COURT ERRED IN RULING THAT THE
On June 25, 1982, the auction sale took place. AIDC being OBLIGATION INCURRED RESPONDENT HUSBAND DID
The loan procured from respondent-appellant NOT REDOUND TO THE BENEFIT OF THE CONJUGAL
the only bidder, was issued a Certificate of Sale by
AIDC was for the advancement and benefit of PARTNERSHIP OF THE PRIVATE RESPONDENT.
petitioner Magsajo, which was registered on July 2, 1982.
Philippine Blooming Mills and not for the benefit of
Upon expiration of the redemption period, petitioner sheriff
the conjugal partnership of petitioners-appellees.
issued the final deed of sale on August 4, 1982 which was II. RESPONDENT COURT ERRED IN RULING THAT THE
registered on August 9, 1983. ACT OF RESPONDENT HUSBAND IN SECURING THE
xxx xxx xxx SUBJECT LOAN IS NOT PART OF HIS INDUSTRY,
In the meantime, the respondent court, on August 4, 1982, BUSINESS OR CAREER FROM WHICH HE SUPPORTS
decided CA-G.R. SP No. 14404, in this manner: As to the applicable law, whether it is Article 161 of HIS FAMILY.
the New Civil Code or Article 1211 of the Family
Code-suffice it to say that the two provisions are Petitioners in their appeal point out that there is no need to
WHEREFORE, the petition for certiorari in this case is
substantially the same. Nevertheless, We agree prove that actual benefit redounded to the benefit of the
granted and the challenged order of the respondent Judge
with the trial court that the Family Code is the partnership; all that is necessary, they say, is that the
dated June 14, 1982 in Civil Case No. 46309 is hereby set
applicable law on the matter . . . . . . . transaction was entered into for the benefit of the conjugal
aside and nullified. The same petition insofar as it seeks to
enjoin the respondent Judge from proceeding with Civil partnership. Thus, petitioners aver that:
Case No. 46309 is, however, denied. No pronouncement is Article 121 of the Family Code provides that "The
here made as to costs. . . . 5 conjugal partnership shall be liable for: . . . (2) All The wordings of Article 161 of the Civil Code is very clear:
debts and obligations contracted during the for the partnership to be held liable, the husband must have
marriage by the designated Administrator-Spouse contracted the debt "for the benefit of the partnership, thus:
On September 3, 1983, AIDC filed a motion to dismiss the
for the benefit of the conjugal partnership of
petition for injunction filed before Branch XIII of the CFI of
gains . . . ." The burden of proof that the debt was
Rizal (Pasig) on the ground that the same had become Art. 161. The conjugal partnership shall be liable for:
contracted for the benefit of the conjugal
moot and academic with the consummation of the sale.
partnership of gains, lies with the creditor-party
Respondents filed their opposition to the motion arguing, 1) all debts and obligations contracted by the husband for
litigant claiming as such. In the case at bar,
among others, that where a third party who claim is the benefit of the conjugal partnership . . . .
respondent-appellant AIDC failed to prove that the
ownership of the property attached or levied upon, a
debt was contracted by appellee-husband, for the
different legal situation is presented; and that in this case,
benefit of the conjugal partnership of gains.
There is a difference between the phrases: "redounded to The husband, as the manager of the partnership showing then of some advantage which clearly accrued to
the benefit of" or "benefited from" (on the one hand) and "for (Article 1412, Civil Code), has a right to embark the welfare of the spouses. Certainly, to make a conjugal
the benefit of (on the other). The former require that actual the partnership in an ordinary commercial partnership respond for a liability that should appertain to
benefit must have been realized; the latter requires only that enterprise for gain, and the fact that the wife may the husband alone is to defeat and frustrate the avowed
the transaction should be one which normally would not approve of a venture does not make it a private objective of the new Civil Code to show the utmost concern
produce benefit to the partnership, regardless of whether or and personal one of the husband. (Abella de Diaz) for the solidarity and well-being of the family as a unit. The
not actual benefit accrued.8 husband, therefore, is denied the power to assume
Debts contracted by the husband for and in the unnecessary and unwarranted risks to the financial stability
We do not agree with petitioners that there is a difference exercise of the industry or profession by which he of the conjugal partnership. (Luzon Surety, Inc.)
between the terms "redounded to the benefit of" or contributes to the support of the family, cannot be
"benefited from" on the one hand; and "for the benefit of" on deemed to be his exclusive and private debts. From the foregoing jurisprudential rulings of this Court, we
the other. They mean one and the same thing. Article 161 (1) (Cobb-Perez). can derive the following conclusions:
of the Civil Code and Article 121 (2) of the Family Code are
similarly worded, i.e., both use the term "for the benefit of." . . . if he incurs an indebtedness in the legitimate (A) If the husband himself is the principal obligor in the
On the other hand, Article 122 of the Family Code provides pursuit of his career or profession or suffers losses contract, i.e., he directly received the money and services to
that "The payment of personal debts by the husband or the in a legitimate business, the conjugal partnership be used in or for his own business or his own profession,
wife before or during the marriage shall not be charged to must equally bear the indebtedness and the losses, that contract falls within the term . . . . obligations for the
the conjugal partnership except insofar as they redounded unless he deliberately acted to the prejudice of his benefit of the conjugal partnership." Here, no actual benefit
to the benefit of the family." As can be seen, the terms are family. (G-Tractors) may be proved. It is enough that the benefit to the family is
used interchangeably. apparent at the time of the signing of the contract. From the
However, in the cases of Ansaldo vs. Sheriff of very nature of the contract of loan or services, the family
Petitioners further contend that the ruling of the respondent Manila, Fidelity Insurance & Luzon Insurance stands to benefit from the loan facility or services to be
court runs counter to the pronouncement of this Court in the Co.,14 Liberty Insurance Corporation rendered to the business or profession of the husband. It is
case of Cobb-Perez vs. Lantin,9 that the husband as head vs. Banuelos, 15 and Luzon Surety Inc. vs. De immaterial, if in the end, his business or profession fails or
of the family and as administrator of the conjugal Garcia, 16 cited by the respondents, we ruled that: does not succeed. Simply stated, where the husband
partnership is presumed to have contracted obligations for contracts obligations on behalf of the family business, the
the benefit of the family or the conjugal partnership. law presumes, and rightly so, that such obligation will
The fruits of the paraphernal property which form
redound to the benefit of the conjugal partnership.
part of the assets of the conjugal partnership, are
Contrary to the contention of the petitioners, the case of subject to the payment of the debts and expenses
Cobb-Perez is not applicable in the case at bar. This Court of the spouses, but not to the payment of the (B) On the other hand, if the money or services are given to
has, on several instances, interpreted the term "for the personal obligations (guaranty agreements) of the another person or entity, and the husband acted only as
benefit of the conjugal partnership." husband, unless it be proved that such obligations a surety or guarantor, that contract cannot, by itself, alone
were productive of some benefit to the family." be categorized as falling within the context of "obligations
In the cases of Javier vs. Osmeña, 10 Abella de Diaz (Ansaldo; parenthetical phrase ours.) for the benefit of the conjugal partnership." The contract of
vs. Erlanger & Galinger, Inc., 11 Cobb-Perez loan or services is clearly for the benefit of the principal
vs. Lantin 12 and G-Tractors, Inc. vs. Court of debtor and not for the surety or his family. No presumption
When there is no showing that the execution of an
Appeals, 13 cited by the petitioners, we held that: can be inferred that, when a husband enters into a contract
indemnity agreement by the husband redounded
of surety or accommodation agreement, it is "for the benefit
to the benefit of his family, the undertaking is not a
of the conjugal partnership." Proof must be presented to
The debts contracted by the husband during the marriage conjugal debt but an obligation personal to him.
establish benefit redounding to the conjugal partnership.
relation, for and in the exercise of the industry or profession (Liberty Insurance)
by which he contributes toward the support of his family, are
not his personal and private debts, and the products or Thus, the distinction between the Cobb-Perez case, and we
In the most categorical language, a conjugal
income from the wife's own property, which, like those of add, that of the three other companion cases, on the one
partnership under Article 161 of the new Civil Code
her husband's, are liable for the payment of the marriage hand, and that of Ansaldo, Liberty Insurance and Luzon
is liable only for such "debts and obligations
expenses, cannot be excepted from the payment of such Surety, is that in the former, the husband contracted the
contracted by the husband for the benefit of the
debts. (Javier) obligation for his own business; while in the latter, the
conjugal partnership." There must be the requisite
husband merely acted as a surety for the loan contracted by partnership" used in Article 161 of the Civil Code of entitled to his monthly salary of P20,000.00 for an extended
another for the latter's business. the Philippines in describing the charges and length of time because of the loan he guaranteed;
obligations for which the conjugal partnership is
The evidence of petitioner indubitably show that liable do not require that actual profit or benefit (b) The shares of stock of the members of his family would
co-respondent Alfredo Ching signed as surety for the P50M must accrue to the conjugal partnership from the appreciate if the PBM could be rehabilitated through the
loan contracted on behalf of PBM. petitioner should have husband's transaction; but it suffices that the loan obtained;
adduced evidence to prove that Alfredo Ching's acting as transaction should be one that normally would
surety redounded to the benefit of the conjugal partnership. produce such benefit for the partnership. This is
(c) His prestige in the corporation would be enhanced and
The reason for this is as lucidly explained by the respondent the ratio behind our ruling in Javier vs. Osmeña,
his career would be boosted should PBM survive because
court: 34 Phil. 336, that obligations incurred by the
of the loan.
husband in the practice of his profession are
collectible from the conjugal partnership.
The loan procured from respondent-appellant AIDC was for However, these are not the benefits contemplated by Article
the advancement and benefit of Philippine Blooming Mills 161 of the Civil Code. The benefits must be one directly
and not for the benefit of the conjugal partnership of The aforequoted concurring opinion agreed with
resulting from the loan. It cannot merely be a by-product or
petitioners-appellees. Philippine Blooming Mills has a the majority decision that the conjugal partnership
a spin-off of the loan itself.
personality distinct and separate from the family of should not be made liable for the surety agreement
petitioners-appellees — this despite the fact that the which was clearly for the benefit of a third party.
Such opinion merely registered an exception to In all our decisions involving accommodation contracts of
members of the said family happened to be stockholders of
what may be construed as a sweeping statement the husband, 18 we underscored the requirement that:
said corporate entity.
that in all cases actual profit or benefit must accrue "there must be the requisite showing . . . of some advantage
to the conjugal partnership. The opinion merely which clearly accrued to the welfare of the spouses" or
xxx xxx xxx "benefits to his family" or "that such obligations are
made it clear that no actual benefits to the family
need be proved in some cases such as in the productive of some benefit to the family." Unfortunately, the
. . . . The burden of proof that the debt was contracted for Javier case. There, the husband was the principal petition did not present any proof to show: (a) Whether or
the benefit of the conjugal partnership of gains, lies with the obligor himself. Thus, said transaction was found not the corporate existence of PBM was prolonged and for
creditor-party litigant claiming as such. In the case at bar, to be "one that would normally produce . . . benefit how many months or years; and/or (b) Whether or not the
respondent-appellant AIDC failed to prove that the debt was for the partnership." In the later case of G-Tractors, PBM was saved by the loan and its shares of stock
contracted by appellee-husband, for the benefit of the Inc., the husband was also the principal obligor — appreciated, if so, how much and how substantial was the
conjugal partnership of gains. What is apparent from the not merely the surety. This latter case, therefore, holdings of the Ching family.
facts of the case is that the judgment debt was contracted did not create any precedent. It did not also
by or in the name of the Corporation Philippine Blooming supersede the Luzon Surety Company case, nor Such benefits (prospects of longer employment and
Mills and appellee-husband only signed as surety thereof. any of the previous accommodation contract cases, probable increase in the value of stocks) might have been
The debt is clearly a corporate debt and where this Court ruled that they were for the already apparent or could be anticipated at the time the
respondent-appellant's right of recourse against benefit of third parties. accommodation agreement was entered into. But would
appellee-husband as surety is only to the extent of his those "benefits" qualify the transaction as one of the
corporate stockholdings. It does not extend to the conjugal "obligations . . . for the benefit of the conjugal partnership"?
But it could be argued, as the petitioner suggests,
partnership of gains of the family of Are indirect and remote probable benefits, the ones referred
that even in such kind of contract of
petitioners-appellees. . . . . . .17 to in Article 161 of the Civil Code? The Court of Appeals in
accommodation, a benefit for the family may also
result, when the guarantee is in favor of the denying the motion for reconsideration, disposed of these
Petitioners contend that no actual benefit need accrue to husband's employer. questions in the following manner:
the conjugal partnership. To support this contention, they
cite Justice J.B.L. Reyes' authoritative opinion in the Luzon No matter how one looks at it, the debt/credit
In the case at bar, petitioner claims that the
Surety Company case: respondents-appellants is purely a corporate debt granted
benefits the respondent family would reasonably
anticipate were the following: to PBM, with petitioner-appellee-husband merely signing as
I concur in the result, but would like to make of record that, surety. While such petitioner-appellee-husband, as such
in my opinion, the words "all debts and obligations surety, is solidarily liable with the principal debtor AIDC,
(a) The employment of co-respondent Alfredo
contracted by the husband for the benefit of the conjugal such liability under the Civil Code provisions is specifically
Ching would be prolonged and he would be
restricted by Article 122 (par. 1) of the Family Code, so that This is the underlying reason why the Family Code spouses' signatures are required in order to bind the
debts for which the husband is liable may not be charged clarifies that the obligations entered into by one of conjugal partnerships.
against conjugal partnership properties. Article 122 of the the spouses must be those that redounded to the
Family Code is explicit — "The payment of personal debts benefit of the family and that the measure of the The fact that on several occasions the lending institutions
contracted by the husband or the wife before or during the partnership's liability is to "the extent that the did not require the signature of the wife and the husband
marriage shall not be charged to the conjugal partnership family is benefited."20 signed alone does not mean that being a surety became
except insofar as they redounded to the benefit of the part of his profession. Neither could he be presumed to
family. These are all in keeping with the spirit and intent of have acted for the conjugal partnership.
the other provisions of the Civil Code which
Respondents-appellants insist that the corporate debt in prohibits any of the spouses to donate or convey Article 121, paragraph 3, of the Family Code is emphatic
question falls under the exception laid down in said Article gratuitously any part of the conjugal that the payment of personal debts contracted by the
122 (par. one). We do not agree. The loan procured from property. 21 Thus, when co-respondent Alfredo husband or the wife before or during the marriage shall not
respondent-appellant AIDC was for the sole advancement Ching entered into a surety agreement he, from be charged to the conjugal partnership except to the extent
and benefit of Philippine Blooming Mills and not for the then on, definitely put in peril the conjugal property that they redounded to the benefit of the family.
benefit of the conjugal partnership of petitioners-appellees. (in this case, including the family home) and
placed it in danger of being taken gratuitously as in
Here, the property in dispute also involves the family home.
. . . appellee-husband derives salaries, dividends benefits cases of donation.
The loan is a corporate loan not a personal one. Signing as
from Philippine Blooming Mills (the debtor corporation), only a surety is certainly not an exercise of an industry or
because said husband is an employee of said PBM. These In the second assignment of error, the petitioner profession nor an act of administration for the benefit of the
salaries and benefits, are not the "benefits" contemplated advances the view that acting as surety is part of family.
by Articles 121 and 122 of the Family Code. The "benefits" the business or profession of the
contemplated by the exception in Article 122 (Family Code) respondent-husband.
On the basis of the facts, the rules, the law and equity, the
is that benefit derived directly from the use of the loan. In
assailed decision should be upheld as we now uphold it.
the case at bar, the loan is a corporate loan extended to This theory is new as it is novel. This is, of course, without prejudice to petitioner's right to
PBM and used by PBM itself, not by
enforce the obligation in its favor against the PBM receiver
petitioner-appellee-husband or his family. The alleged
The respondent court correctly observed that: in accordance with the rehabilitation program and payment
benefit, if any, continuously harped by
schedule approved or to be approved by the Securities &
respondents-appellants, are not only incidental but also
Signing as a surety is certainly not an exercise of Exchange Commission.
speculative. 19
an industry or profession, hence the cited cases
of Cobb-Perez vs. Lantin; Abella de Diaz WHEREFORE, the petition for review should be, as it is
We agree with the respondent court. Indeed, considering
vs. Erlanger & Galinger; G-Tractors, Inc. vs. CA do hereby, DENIED for lack of merit.
the odds involved in guaranteeing a large amount
not apply in the instant case. Signing as a surety is
(P50,000,000.00) of loan, the probable prolongation of
not embarking in a business.22 SO ORDERED.
employment in PBM and increase in value of its stocks,
would be too small to qualify the transaction as one "for the
benefit" of the surety's family. Verily, no one could say, with We are likewise of the view that no matter how [G.R. No. 114791. May 29, 1997]
a degree of certainty, that the said contract is even often an executive acted or was persuaded to act,
"productive of some benefits" to the conjugal partnership. as a surety for his own employer, this should not
NANCY GO AND ALEX GO, Petitioners, v. THE
be taken to mean that he had thereby embarked in
HONORABLE COURT OF APPEALS, HERMOGENES
the business of suretyship or guaranty.
We likewise agree with the respondent court (and this view ONG and JANE C. ONG, Respondents.
is not contested by the petitioners) that the provisions of the
Family Code is applicable in this case. These provisions This is not to say, however, that we are unaware
DECISION
highlight the underlying concern of the law for the that executives are often asked to stand as surety
conservation of the conjugal partnership; for the husband's for their company's loan obligations. This is
especially true if the corporate officials have ROMERO, J.:
duty to protect and safeguard, if not augment, not to
dissipate it. sufficient property of their own; otherwise, their
No less than the Constitution commands us to protect b) P75,000.00, as moral damages; neither have such persons against the principal.
marriage as an inviolable social institution and the
foundation of the family.1 In our society, the importance of a c) P20,000.00, as exemplary damages; In such case the agent is the one directly bound in
wedding ceremony cannot be underestimated as it is the favor of the person with whom he has contracted, as if
matrix of the family and, therefore, an occasion worth the transaction were his own, except when the contract
d) P5,000.00, as attorneys fees; and
reliving in the succeeding years. involves things belonging to the principal.
e) P2,000.00, as litigation expenses;
It is in this light that we narrate the following undisputed xxx xxx xxx
facts:
Defendants are also ordered to pay the costs.
Petitioners argument that since the video equipment used
Private respondents spouses Hermogenes and Jane Ong belonged to Lim and thus the contract was actually entered
were married on June 7, 1981, in Dumaguete City. The SO ORDERED.
into between private respondents and Lim is not deserving
video coverage of the wedding was provided by petitioners of any serious consideration. In the instant case, the
at a contract price of P1,650.00. Three times thereafter, the Dissatisfied with the decision, petitioners contract entered into is one of service, that is, for the video
newlyweds tried to claim the video tape of their wedding, elevated the case to the Court of Appeals coverage of the wedding. Consequently, it can hardly be
which they planned to show to their relatives in the United which, on September 14, 1993, dismissed the said that the object of the contract was the video equipment
States where they were to spend their honeymoon, and appeal and affirmed the trial courts decision. used. The use by petitioners of the video equipment of
thrice they failed because the tape was apparently not yet another person is of no consequence.
processed. The parties then agreed that the tape would be Hence, this petition.
ready upon private respondents return.
It must also be noted that in the course of the protracted trial
Petitioners contend that the Court of Appeals below, petitioners did not even present Lim to corroborate
When private respondents came home from their erred in not appreciating the evidence they their contention that they were mere agents of the latter. It
honeymoon, however, they found out that the tape had presented to prove that they acted only as would not be unwarranted to assume that their failure to
been erased by petitioners and therefore, could no longer agents of a certain Pablo Lim and, as such, present such a vital witness would have had an adverse
be delivered. should not have been held liable. In addition, result on the case.4chanroblesvirtuallawlibrary
they aver that there is no evidence to show that
Furious at the loss of the tape which was supposed to be the erasure of the tape was done in bad faith so As regards the award of damages, petitioners would
the only record of their wedding, private respondents filed as to justify the award of impress upon this Court their lack of malice or fraudulent
on September 23, 1981 a complaint for specific damages.2chanroblesvirtuallawlibrary intent in the erasure of the tape. They insist that since
performance and damages against petitioners before the private respondents did not claim the tape after the lapse of
Regional Trial Court, 7th Judicial District, Branch 33, The petition is not meritorious. thirty days, as agreed upon in their contract, the erasure
Dumaguete City. After a protracted trial, the court a was done in consonance with consistent business practice
quo rendered a decision, to wit: to minimize losses.5chanroblesvirtuallawlibrary
Petitioners claim that for the video coverage,
the cameraman was employed by Pablo Lim
WHEREFORE, judgment is hereby granted: who also owned the video equipment used. We are not persuaded.
They further assert that they merely get a
1. Ordering the rescission of the agreement entered into commission for all customers solicited for As correctly observed by the Court of Appeals, it is contrary
between plaintiff Hermogenes Ong and defendant Nancy their principal.3chanroblesvirtuallawlibrary to human nature for any newlywed couple to neglect to
Go; claim the video coverage of their wedding; the fact that
This contention is primarily premised on private respondents filed a case against petitioners belies
2. Declaring defendants Alex Go and Nancy Go jointly and Article 1883 of the Civil Code which states such assertion. Clearly, petitioners are guilty of actionable
severally liable to plaintiffs Hermogenes Ong and Jane C. thus: delay for having failed to process the video tape.
Ong for the following sums: Considering that private respondents were about to leave
ART. 1883. If an agent acts in his own name, for the United States, they took care to inform petitioners
a) P450.00, the down payment made at contract time; the principal has no right of action against the that they would just claim the tape upon their return two
persons with whom the agent has contracted;
months later. Thus, the erasure of the tape after the lapse of feelings, sleepless nights and humiliation that the SO ORDERED.
thirty days was unjustified. appellees suffered and which under the
circumstances could be awarded as allowed under Art. 86. A donation by reason of marriage may be revoked
In this regard, Article 1170 of the Civil Code provides that Articles 2217 and 2218 of the Civil by the donor in the following cases:
those who in the performance of their obligations are guilty Code.9chanroblesvirtuallawlibrary
of fraud, negligence or delay, and those who is any manner (1) If the marriage is not celebrated or judicially declared
contravene the tenor thereof, are liable for damages. Considering the attendant wanton negligence void ab initio except donations made in the marriage
committed by petitioners in the case at bar, the settlements, which shall be governed by Article 81;
In the instant case, petitioners and private respondents award of exemplary damages by the trial court is
(2) When the marriage takes place without the consent of
entered into a contract whereby, for a fee, the former justified10 to serve as a warning to all entities
the parents or guardian, as required by law;
undertook to cover the latters wedding and deliver to them a engaged in the same business to observe due
video copy of said event. For whatever reason, petitioners diligence in the conduct of their affairs. (3) When the marriage is annulled, and the donee acted in
failed to provide private respondents with their tape. Clearly, bad faith;
petitioners are guilty of contravening their obligation to said The award of attorneys fees and litigation
private respondents and are thus liable for damages. expenses are likewise proper, consistent with (4) Upon legal separation, the donee being the guilty
Article 220811 of the Civil Code. spouse;

The grant of actual or compensatory damages in the (5) If it is with a resolutory condition and the condition is
amount of P450.00 is justified, as reimbursement of the Finally, petitioner Alex Go questions the finding of complied with;
downpayment paid by private respondents to the trial and appellate courts holding him jointly
petitioners.6chanroblesvirtuallawlibrary and severally liable with his wife Nancy regarding (6) When the donee has committed an act of ingratitude as
the pecuniary liabilities imposed. He argues that specified by the provisions of the Civil Code on donations in
when his wife entered into the contract with private general. (132a)
Generally, moral damages cannot be recovered in an action
for breach of contract because this case is not among those respondent, she was acting alone for her sole
enumerated in Article 2219 of the Civil Code. However, it is interest.12chanroblesvirtuallawlibrary
also accepted in this jurisdiction that liability for
[G.R. No. 116668. July 28, 1997]
a quasi-delict may still exist despite the presence of We find merit in this contention. Under Article 117
contractual relations, that is, the act which violates the of the Civil Code (now Article 73 of the Family
contract may also constitute a quasi-delict.7 Consequently, Code), the wife may exercise any profession, ERLINDA A. AGAPAY, Petitioner, v. CARLINA
moral damages are recoverable for the breach of contract occupation or engage in business without the (CORNELIA) V. PALANG and HERMINIA P. DELA
which was palpably wanton, reckless, malicious or in bad consent of the husband. In the instant case, we are CRUZ, Respondents.
faith, oppresive or abusive.8chanroblesvirtuallawlibrary convinced that it was only petitioner Nancy Go
who entered into the contract with private DECISION
Petitioners act or omission in recklessly erasing the video respondent. Consequently, we rule that she is
coverage of private respondents wedding was precisely the solely liable to private respondents for the ROMERO, J.:
cause of the suffering private respondents had to undergo. damages awarded below, pursuant to the principle
that contracts produce effect only as between the
Before us is a petition for review of the decision of the Court
parties who execute
As the appellate court aptly observed: of Appeals in CA-G.R. CV No. 24199 entitled Erlinda
them.13chanroblesvirtuallawlibrary
Agapay v. Carlina (Cornelia) Palang and Herminia P. Dela
Considering the sentimental value of the tapes and the fact Cruz dated June 22, 1994 involving the ownership of two
WHEREFORE, the assailed decision dated parcels of land acquired during the cohabitation of petitioner
that the event therein recorded a wedding which in our
September 14, 1993 is hereby AFFIRMED with the and private respondents legitimate spouse.
culture is a significant milestone to be cherished and
MODIFICATION that petitioner Alex Go is
remembered could no longer be reenacted and was lost
absolved from any liability to private respondents
forever, the trial court was correct in awarding the appellees Miguel Palang contracted his first marriage on July 16, 1949
and that petitioner Nancy Go is solely liable to said
moral damages albeit in the amount of P75,000.00, which when he took private respondent Carlina (or Cornelia)
private respondents for the judgment award. Costs
was a great reduction from plaintiffs demand in the Vallesterol as a wife at the Pozorrubio Roman Catholic
against petitioners.
complaint, in compensation for the mental anguish, tortured Church in Pangasinan. A few months after the wedding, in
October 1949, he left to work in Hawaii. Miguel and Carlinas back the riceland and the house and lot both 4) Adjudicating to Kristopher Palang as his inheritance from
only child, Herminia Palang, was born on May 12, 1950. located at Binalonan, Pangasinan allegedly his deceased father, Miguel Palang, the one-half (1/2) of the
purchased by Miguel during his cohabitation with agricultural land situated at Balisa, San Felipe, Binalonan,
Miguel returned in 1954 for a year. His next visit to the petitioner. Pangasinan, under TCT No. 101736 in the name of Miguel
Philippines was in 1964 and during the entire duration of his Palang, provided that the former (Kristopher) executes,
year-long sojourn he stayed in Zambales with his brother, Petitioner, as defendant below, contended that within 15 days after this decision becomes final and
not in Pangasinan with his wife and child. The trial court while the riceland covered by TCT No. 101736 is executory, a quit-claim forever renouncing any claims to
found evidence that as early as 1957, Miguel had attempted registered in their names (Miguel and Erlinda), she annul/reduce the donation to Herminia Palang de la Cruz of
to divorce Carlina in Hawaii.1 When he returned for good in had already given her half of the property to their all conjugal properties of her parents, Miguel Palang and
1972, he refused to live with private respondents, but son Kristopher Palang. She added that the house Carlina Vallesterol Palang, dated October 30, 1975,
stayed alone in a house in Pozorrubio, Pangasinan. and lot covered by TCT No. 143120 is her sole otherwise, the estate of deceased Miguel Palang will have
property, having bought the same with her own to be settled in another separate action;
On July 15, 1973, the then sixty-three-year-old Miguel money. Erlinda added that Carlina is precluded
contracted his second marriage with nineteen-year-old from claiming aforesaid properties since the latter 5) No pronouncement as to damages and attorneys fees.
Erlinda Agapay, herein petitioner.2 Two months earlier, on had already donated their conjugal estate to
May 17, 1973, Miguel and Erlinda, as evidenced by the Herminia. SO ORDERED.6chanroblesvirtuallawlibrary
Deed of Sale, jointly purchased a parcel of agricultural land
located at San Felipe, Binalonan, Pangasinan with an area After trial on the merits, the lower court rendered On appeal, respondent court reversed the trial courts
of 10,080 square meters. Consequently, Transfer its decision on June 30, 1989 dismissing the decision. The Court of Appeals rendered its decision on July
Certificate of Title No. 101736 covering said rice land was complaint after declaring that there was little 22, 1994 with the following dispositive portion:
issued in their names. evidence to prove that the subject properties
pertained to the conjugal property of Carlina and
WHEREFORE, PREMISES CONSIDERED, the appealed
A house and lot in Binalonan, Pangasinan was likewise Miguel Palang. The lower court went on to provide
decision is hereby REVERSED and another one entered:
purchased on September 23, 1975, allegedly by Erlinda as for the intestate shares of the parties, particularly
the sole vendee. TCT No. 143120 covering said property of Kristopher Palang, Miguels illegitimate son. The
dispositive portion of the decision reads: 1. Declaring plaintiffs-appellants the owners of the
was later issued in her name.
properties in question;

On October 30, 1975, Miguel and Cornelia Palang executed WHEREFORE, premises considered, judgment is
hereby rendered- 2. Ordering defendant-appellee to vacate and deliver the
a Deed of Donation as a form of compromise agreement to
properties in question to herein plaintiffs-appellants;
settle and end a case filed by the latter.3 The parties therein
agreed to donate their conjugal property consisting of six 1) Dismissing the complaint, with costs against
parcels of land to their only child, Herminia plaintiffs; 3. Ordering the Register of Deeds of Pangasinan to cancel
Palang.4chanroblesvirtuallawlibrary Transfer Certificate of Title Nos. 143120 and 101736 and to
issue in lieu thereof another certificate of title in the name of
2) Confirming the ownership of defendant Erlinda
plaintiffs-appellants.
Miguel and Erlindas cohabitation produced a son, Agapay of the residential lot located at Poblacion,
Kristopher A. Palang, born on December 6, 1977. In 1979, Binalonan, Pangasinan, as evidenced by TCT No.
Miguel and Erlinda were convicted of Concubinage upon 143120, Lot 290-B including the old house No pronouncement as to costs.7chanroblesvirtuallawlibrary
Carlinas complaint.5 Two years later, on February 15, 1981, standing therein;
Miguel died. Hence, this petition.
3) Confirming the ownership of one-half (1/2)
On July 11, 1981, Carlina Palang and her daughter portion of that piece of agricultural land situated at Petitioner claims that the Court of Appeals erred in not
Herminia Palang de la Cruz, herein private respondents, Balisa, San Felipe, Binalonan, Pangasinan, sustaining the validity of two deeds of absolute sale
instituted the case at bar, an action for recovery of consisting of 10,080 square meters and as covering the riceland and the house and lot, the first in favor
ownership and possession with damages against petitioner evidenced by TCT No. 101736, Lot 1123-A to of Miguel Palang and Erlinda Agapay and the second, in
before the Regional Trial Court in Urdaneta, Pangasinan Erlinda Agapay; favor of Erlinda Agapay alone. Second, petitioner contends
(Civil Case No. U-4265). Private respondents sought to get that respondent appellate court erred in not declaring
Kristopher A. Palang as Miguel Palangs illegitimate son and In the case at bar, Erlinda tried to establish by her spouses during the marriage shall not take place except by
thus entitled to inherit from Miguels estate. Third, testimony that she is engaged in the business of judicial order or without judicial conferment when there is an
respondent court erred, according to petitioner, in not buy and sell and had a sari-sari store10 but failed express stipulation in the marriage settlements. 13 The
finding that there is sufficient pleading and evidence that to persuade us that she actually contributed judgment which resulted from the parties compromise was
Kristoffer A. Palang or Christopher A. Palang should be money to buy the subject riceland. Worth noting is not specifically and expressly for separation of property and
considered as party-defendant in Civil Case No. U-4625 the fact that on the date of conveyance, May 17, should not be so inferred.
before the trial court and in CA-G.R. No. 1973, petitioner was only around twenty years of
24199.8chanroblesvirtuallawlibrary age and Miguel Palang was already sixty-four and With respect to the house and lot, Erlinda allegedly bought
a pensioner of the U.S. Government. Considering the same for P20,000.00 on September 23, 1975 when she
After studying the merits of the instant case, as well as the her youthfulness, it is unrealistic to conclude that in was only 22 years old. The testimony of the notary public
pertinent provisions of law and jurisprudence, the Court 1973 she contributed P3,750.00 as her share in who prepared the deed of conveyance for the property
denies the petition and affirms the questioned decision of the purchase price of subject property,11 there reveals the falsehood of this claim. Atty. Constantino Sagun
the Court of Appeals. being no proof of the same. testified that Miguel Palang provided the money for the
purchase price and directed that Erlindas name alone be
The first and principal issue is the ownership of the two Petitioner now claims that the riceland was bought placed as the vendee.14chanroblesvirtuallawlibrary
pieces of property subject of this action. Petitioner assails two months before Miguel and Erlinda actually
the validity of the deeds of conveyance over the same cohabited. In the nature of an afterthought, said The transaction was properly a donation made by Miguel to
parcels of land. There is no dispute that the transfers of added assertion was intended to exclude their Erlinda, but one which was clearly void and inexistent by
ownership from the original owners of the riceland and the case from the operation of Article 148 of the Family express provision of law because it was made between
house and lot, Corazon Ilomin and the spouses Cespedes, Code. Proof of the precise date when they persons guilty of adultery or concubinage at the time of the
respectively, were valid. commenced their adulterous cohabitation not donation, under Article 739 of the Civil Code. Moreover,
having been adduced, we cannot state definitively Article 87 of the Family Code expressly provides that the
that the riceland was purchased even before they prohibition against donations between spouses now applies
The sale of the riceland on May 17, 1973, was made in
started living together. In any case, even assuming to donations between persons living together as husband
favor of Miguel and Erlinda. The provision of law applicable
that the subject property was bought before and wife without a valid marriage,15 for otherwise, the
here is Article 148 of the Family Code providing for cases of
cohabitation, the rules of co-ownership would still condition of those who incurred guilt would turn out to be
cohabitation when a man and a woman who
apply and proof of actual contribution would still be better than those in legal union.16chanroblesvirtuallawlibrary
are not capacitated to marry each other live exclusively with
essential.
each other as husband and wife without the benefit of
marriage or under a void marriage. While Miguel and The second issue concerning Kristopher Palangs status
Erlinda contracted marriage on July 15, 1973, said union Since petitioner failed to prove that she contributed and claim as an illegitimate son and heir to Miguels estate is
was patently void because the earlier marriage of Miguel money to the purchase price of the riceland in here resolved in favor of respondent courts correct
and Carlina was still susbsisting and unaffected by the Binalonan, Pangasinan, we find no basis to justify assessment that the trial court erred in making
latters de facto separation. her co-ownership with Miguel over the same. pronouncements regarding Kristophers heirship and filiation
Consequently, the riceland should, as correctly inasmuch as questions as to who are the heirs of the
held by the Court of Appeals, revert to the conjugal decedent, proof of filiation of illegitimate children and the
Under Article 148, only the properties acquired by both of
partnership property of the deceased Miguel and determination of the estate of the latter and claims thereto
the parties through their actual joint contribution of
private respondent Carlina Palang. should be ventilated in the proper probate court or in a
money, property or industry shall be owned by them in
common in proportion to their respective contributions. It special proceeding instituted for the purpose and cannot be
must be stressed that actual contribution is required by this Furthermore, it is immaterial that Miguel and adjudicated in the instant ordinary civil action which is for
provision, in contrast to Article 147 which states that efforts Carlina previously agreed to donate their conjugal recovery of ownership and
in the care and maintenance of the family and household, property in favor of their daughter Herminia in possession.17chanroblesvirtuallawlibrary
are regarded as contributions to the acquisition of common 1975. The trial court erred in holding that the
property by one who has no salary or income or work or decision adopting their compromise agreement in As regards the third issue, petitioner contends that
industry. If the actual contribution of the party is not proved, effect partakes the nature of judicial confirmation Kristopher Palang should be considered as party-defendant
there will be no co-ownership and no presumption of equal of the separation of property between spouses and in the case at bar following the trial courts decision which
shares.9chanroblesvirtuallawlibrary the termination of the conjugal expressly found that Kristopher had not been impleaded as
partnership.12 Separation of property between party defendant but theorized that he had submitted to the
courts jurisdiction through his mother/guardian ad
litem.18 The trial court erred gravely. Kristopher, not having
been impleaded, was, therefore, not a party to the case at
bar. His mother, Erlinda, cannot be called his guardian ad
litem for he was not involved in the case at bar. Petitioner
adds that there is no need for Kristopher to file another
action to prove that he is the illegitimate son of Miguel, in
order to avoid multiplicity of suits.19 Petitioners grave error
has been discussed in the preceeding paragraph where the
need for probate proceedings to resolve the settlement of
Miguels estate and Kristophers successional rights has
been pointed out.

WHEREFORE, the instant petition is hereby DENIED. The

questioned decision of the Court of Appeals is AFFIRMED.
Costs against petitioner.

SO ORDERED.

Art. 87. Every donation or grant of gratuitous advantage,

direct or indirect, between the spouses during the marriage
shall be void, except moderate gifts which the spouses may
give each other on the occasion of any family rejoicing. The
prohibition shall also apply to persons living together as
husband and wife without a valid marriage. (133a)