G.R. No.

167109

February 6, 2007

FELICITAS AMOR-CATALAN, Petitioner,

vs.
COURT OF APPEALS, MANILA, ORLANDO B. CATALAN and MEROPE E.
BRAGANZA, Respondents.
DECISION

P200,000.00 and attorneys fees in the amount of P50,000.00, including costs of this
suit; and
3) The donation in consideration of marriage is ordered revoked and the property
donated is ordered awarded to the heirs of Juliana Braganza.
Furnish copies of this Decision to Atty. Napoleon B. Arenas, Jr. and Atty. Nolan
Evangelista.

YNARES-SANTIAGO, J.:

SO ORDERED.10

This petition for review assails the Decision1 of the Court of Appeals in CA-G.R. CV
No. 69875 dated August 6, 2004, which reversed the Decision 2 of the Regional Trial
Court (RTC) of Dagupan City, Branch 44, in Civil Case No. D-10636, declaring the
marriage between respondents Orlando B. Catalan and Merope E. Braganza void on
the ground of bigamy, as well as the Resolution3 dated January 27, 2005, which
denied the motion for reconsideration.

Respondents appealed the decision to the Court of Appeals, which reversed the
decision of the RTC, thus:

Petitioner Felicitas Amor-Catalan married respondent Orlando on June 4, 1950 in

Mabini, Pangasinan.4Thereafter, they migrated to the United States of America and
allegedly became naturalized citizens thereof. After 38 years of marriage, Felicitas
and Orlando divorced in April 1988.5

SO ORDERED.11

Two months after the divorce, or on June 16, 1988, Orlando married respondent
Merope in Calasiao, Pangasinan.6 Contending that said marriage was bigamous since
Merope had a prior subsisting marriage with Eusebio Bristol, petitioner filed a
petition for declaration of nullity of marriage with damages in the RTC of Dagupan
City7 against Orlando and Merope.
Respondents filed a motion to dismiss8 on the ground of lack of cause of action as
petitioner was allegedly not a real party-in-interest, but it was denied. 9 Trial on the
merits ensued.
On October 10, 2000, the RTC rendered judgment in favor of the petitioner, the
dispositive portion of which reads:
WHEREFORE, judgment is declared in favor of plaintiff Felicitas Amor Catalan and
against defendants Orlando B. Catalan and Merope E. Braganza, as follows:
1) The subsequent marriage of Merope Braganza with Orlando B. Catalan is declared
null and void ab initio;
2) The defendants are ordered jointly and severally to pay plaintiff by way of moral
damages the amount of P300,000.00, exemplary damages in the amount of

WHEREFORE, premises considered, we hereby GRANT the appeal and consequently

REVERSE and SET ASIDE the appealed decision. We likewise DISMISS Civil Case No.
D-10636, RTC, Branch 44, Dagupan City. No costs.

After the motion for reconsideration was denied, petitioner filed the instant petition
for review raising the following issues:
I.
WHETHER PETITIONER HAS THE REQUIRED STANDING IN COURT TO QUESTION THE
NULLITY OF THE MARRIAGE BETWEEN RESPONDENTS;
II.
WHETHER THE FAILURE OF THE COURT OF APPEALS TO DECLARE THE QUESTIONED
MARRIAGE VOID CONSTITUTES REVERSIBLE ERROR. 12
Petitioner contends that the bigamous marriage of the respondents, which brought
embarrassment to her and her children, confers upon her an interest to seek judicial
remedy to address her grievances and to protect her family from further
embarrassment and humiliation. She claims that the Court of Appeals committed
reversible error in not declaring the marriage void despite overwhelming evidence
and the state policy discouraging illegal and immoral marriages.13
The main issue to be resolved is whether petitioner has the personality to file a
petition for the declaration of nullity of marriage of the respondents on the ground of
bigamy. However, this issue may not be resolved without first determining the
corollary factual issues of whether the petitioner and respondent Orlando had

indeed become naturalized American citizens and whether they had actually been
judicially granted a divorce decree.
While it is a settled rule that the Court is not a trier of facts and does not normally
undertake the re-examination of the evidence presented by the contending parties
during the trial of the case,14 there are, however, exceptions to this rule, like when
the findings of facts of the RTC and the Court of Appeals are conflicting, or when the
findings are conclusions without citation of specific evidence on which they are
based.15
Both the RTC and the Court of Appeals found that petitioner and respondent Orlando
were naturalized American citizens and that they obtained a divorce decree in April
1988. However, after a careful review of the records, we note that other than the
allegations in the complaint and the testimony during the trial, the records are bereft
of competent evidence to prove their naturalization and divorce.
The Court of Appeals therefore had no basis when it held:
In light of the allegations of Felicitas complaint and the documentary and
testimonial evidence she presented, we deem it undisputed that Orlando and
Felicitas are American citizens and had this citizenship status when they secured
their divorce decree in April 1988. We are not therefore dealing in this case with
Filipino citizens whose marital status is governed by the Family Code and our Civil
Code, but with American citizens who secured their divorce in the U.S. and who are
considered by their national law to be free to contract another marriage. x x x 16
Further, the Court of Appeals mistakenly considered the failure of the petitioner to
refute or contest the allegation in respondents brief, that she and respondent
Orlando were American citizens at the time they secured their divorce in April 1988,
as sufficient to establish the fact of naturalization and divorce.17 We note that it was
the petitioner who alleged in her complaint that they acquired American citizenship
and that respondent Orlando obtained a judicial divorce decree.18 It is settled rule
that one who alleges a fact has the burden of proving it and mere allegation is not
evidence.19
Divorce means the legal dissolution of a lawful union for a cause arising after
marriage. But divorces are of different types. The two basic ones are (1) absolute
divorce or a vinculo matrimonii and (2) limited divorce or a mensa et thoro. The first
kind terminates the marriage, while the second suspends it and leaves the bond in
full force.20 A divorce obtained abroad by an alien may be recognized in our
jurisdiction, provided such decree is valid according to the national law of the
foreigner.21 However, before it can be recognized by our courts, the party pleading it
must prove the divorce as a fact and demonstrate its conformity to the foreign law
allowing it, which must be proved considering that our courts cannot take judicial
notice of foreign laws.22

Without the divorce decree and foreign law as part of the evidence, we cannot rule
on the issue of whether petitioner has the personality to file the petition for
declaration of nullity of marriage. After all, she may have the personality to file the
petition if the divorce decree obtained was a limited divorce or a mensa et thoro; or
the foreign law may restrict remarriage even after the divorce decree becomes
absolute.23 In such case, the RTC would be correct to declare the marriage of the
respondents void for being bigamous, there being already in evidence two existing
marriage certificates, which were both obtained in the Philippines, one in Mabini,
Pangasinan dated December 21, 1959 between Eusebio Bristol and respondent
Merope,24 and the other, in Calasiao, Pangasinan dated June 16, 1988 between the
respondents.25
However, if there was indeed a divorce decree obtained and which, following the
national law of Orlando, does not restrict remarriage, the Court of Appeals would be
correct in ruling that petitioner has no legal personality to file a petition to declare
the nullity of marriage, thus:
Freed from their existing marital bond, each of the former spouses no longer has any
interest nor should each have the personality to inquire into the marriage that the
other might subsequently contract. x x x Viewed from another perspective, Felicitas
has no existing interest in Orlandos subsequent marriage since the validity, as well
as any defect or infirmity, of this subsequent marriage will not affect the divorced
status of Orlando and Felicitas. x x x26
True, under the New Civil Code which is the law in force at the time the respondents
were married, or even in the Family Code, there is no specific provision as to who
can file a petition to declare the nullity of marriage; however, only a party who can
demonstrate "proper interest" can file the same. A petition to declare the nullity of
marriage, like any other actions, must be prosecuted or defended in the name of the
real party in interest27 and must be based on a cause of action.28 Thus, in Nial v.
Bayadog,29 the Court held that the children have the personality to file the petition
to declare the nullity of the marriage of their deceased father to their stepmother as
it affects their successional rights.1awphi1.net
Significantly, Section 2(a) of The Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages, which took effect on March 15,
2003, now specifically provides:
SECTION 2. Petition for declaration of absolute nullity of void marriages.
(a) Who may file. A petition for declaration of absolute nullity of void marriage
may be filed solely by the husband or the wife.
xxxx

In fine, petitioners personality to file the petition to declare the nullity of marriage
cannot be ascertained because of the absence of the divorce decree and the foreign
law allowing it. Hence, a remand of the case to the trial court for reception of
additional evidence is necessary to determine whether respondent Orlando was
granted a divorce decree and whether the foreign law which granted the same
allows or restricts remarriage. If it is proved that a valid divorce decree was obtained
and the same did not allow respondent Orlandos remarriage, then the trial court
should declare respondents marriage as bigamous and void ab initio but reduce the
amount of moral damages from P300,000.00 to P50,000.00 and exemplary damages
from P200,000.00 to P25,000.00. On the contrary, if it is proved that a valid divorce
decree was obtained which allowed Orlando to remarry, then the trial court must
dismiss the instant petition to declare nullity of marriage on the ground that
petitioner Felicitas Amor-Catalan lacks legal personality to file the same.
WHEREFORE, in view of the foregoing, let this case be REMANDED to the trial court
for its proper disposition. No costs.
SO ORDERED.

G.R. No. 94053 March 17, 1993

Antique. Respondent claimed he then immediately asked permission to leave his

ship to return home. He arrived in Antique in November 1983.

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
GREGORIO NOLASCO, respondent.
The Solicitor General for plaintiff-appellee.
Warloo G. Cardenal for respondent.
RESOLUTION

Respondent further testified that his efforts to look for her himself whenever his ship
docked in England proved fruitless. He also stated that all the letters he had sent to
his missing spouse at No. 38 Ravena Road, Allerton, Liverpool, England, the address
of the bar where he and Janet Monica first met, were all returned to him. He also
claimed that he inquired from among friends but they too had no news of Janet
Monica.
On cross-examination, respondent stated that he had lived with and later married
Janet Monica Parker despite his lack of knowledge as to her family background. He
insisted that his wife continued to refuse to give him such information even after
they were married. He also testified that he did not report the matter of Janet
Monica's disappearance to the Philippine government authorities.

FELICIANO, J.:
On 5 August 1988, respondent Gregorio Nolasco filed before the Regional Trial Court
of Antique, Branch 10, a petition for the declaration of presumptive death of his wife
Janet Monica Parker, invoking Article 41 of the Family Code. The petition prayed that
respondent's wife be declared presumptively dead or, in the alternative, that the
marriage be declared null and void. 1
The Republic of the Philippines opposed the petition through the Provincial
Prosecutor of Antique who had been deputized to assist the Solicitor-General in the
instant case. The Republic argued, first, that Nolasco did not possess a "wellfounded belief that the absent spouse was already dead," 2 and second, Nolasco's
attempt to have his marriage annulled in the same proceeding was a "cunning
attempt" to circumvent the law on marriage. 3
During trial, respondent Nolasco testified that he was a seaman and that he had first
met Janet Monica Parker, a British subject, in a bar in England during one of his
ship's port calls. From that chance meeting onwards, Janet Monica Parker lived with
respondent Nolasco on his ship for six (6) months until they returned to respondent's
hometown of San Jose, Antique on 19 November 1980 after his seaman's contract
expired. On 15 January 1982, respondent married Janet Monica Parker in San Jose,
Antique, in Catholic rites officiated by Fr. Henry van Tilborg in the Cathedral of San
Jose.
Respondent Nolasco further testified that after the marriage celebration, he
obtained another employment contract as a seaman and left his wife with his
parents in San Jose, Antique. Sometime in January 1983, while working overseas,
respondent received a letter from his mother informing him that Janet Monica had
given birth to his son. The same letter informed him that Janet Monica had left

Respondent Nolasco presented his mother, Alicia Nolasco, as his witness. She
testified that her daughter-in-law Janet Monica had expressed a desire to return to
England even before she had given birth to Gerry Nolasco on 7 December 1982.
When asked why her daughter-in-law might have wished to leave Antique,
respondent's mother replied that Janet Monica never got used to the rural way of life
in San Jose, Antique. Alicia Nolasco also said that she had tried to dissuade Janet
Monica from leaving as she had given birth to her son just fifteen days before, but
when she (Alicia) failed to do so, she gave Janet Monica P22,000.00 for her expenses
before she left on 22 December 1982 for England. She further claimed that she had
no information as to the missing person's present whereabouts.
The trial court granted Nolasco's petition in a Judgment dated 12 October 1988 the
dispositive portion of which reads:
Wherefore, under Article 41, paragraph 2 of the Family Code of the
Philippines (Executive Order No. 209, July 6, 1987, as amended by
Executive Order No. 227, July 17, 1987) this Court hereby declares
as presumptively dead Janet Monica Parker Nolasco, without
prejudice to her reappearance. 4
The Republic appealed to the Court of Appeals contending that the trial court erred
in declaring Janet Monica Parker presumptively dead because respondent Nolasco
had failed to show that there existed a well founded belief for such declaration.
The Court of Appeals affirmed the trial court's decision, holding that respondent had
sufficiently established a basis to form a belief that his absent spouse had already
died.

The Republic, through the Solicitor-General, is now before this Court on a Petition for
Review where the following allegations are made:
1. The Court of Appeals erred in affirming the trial court's finding that there existed a
well-founded belief on the part of Nolasco that Janet Monica Parker was already
dead; and

1. That the absent spouse has been missing for four consecutive years, or two
consecutive years if the disappearance occurred where there is danger of death
under the circumstances laid down in Article 391, Civil Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief that the absentee is dead; and

2. The Court of Appeals erred in affirming the trial Court's declaration that the
petition was a proper case of the declaration of presumptive death under Article 41,
Family Code. 5

4. That the present spouse files a summary proceeding for the declaration of
presumptive death of the absentee. 10

The issue before this Court, as formulated by petitioner is "[w]hether or not Nolasco
has a well-founded belief that his wife is already dead." 6

Respondent naturally asserts that he had complied with all these requirements. 11

The present case was filed before the trial court pursuant to Article 41 of the Family
Code which provides that:

Petitioner's argument, upon the other hand, boils down to this: that respondent
failed to prove that he had complied with the third requirement, i.e., the existence of
a "well-founded belief" that the absent spouse is already dead.

Art. 41. A marriage contracted by any person during the subsistence of a previous
marriage shall be null and void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four consecutive years and
the spouse present had a well-founded belief that the absent spouse was already
dead. In case of disappearance where there is danger of death under the
circumstances set forth in the provision of Article 391 of the Civil Code, an absence
of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding
paragraph, the spouse present must institute a summary proceeding as provided in
this Code for the declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse. (Emphasis supplied).
When Article 41 is compared with the old provision of the Civil Code, which it
superseded, 7 the following crucial differences emerge. Under Article 41, the time
required for the presumption to arise has been shortened to four (4) years; however,
there is need for a judicial declaration of presumptive death to enable the spouse
present to remarry. 8 Also, Article 41 of the Family Code imposes a stricter standard
than the Civil Code: Article 83 of the Civil Code merely requires either that there
be no news that such absentee is still alive; or the absentee is generally considered
to be dead andbelieved to be so by the spouse present, or is presumed dead under
Article 390 and 391 of the Civil Code. 9 The Family Code, upon the other hand,
prescribes as "well founded belief" that the absentee is already dead before a
petition for declaration of presumptive death can be granted.
As pointed out by the Solicitor-General, there are four (4) requisites for the
declaration of presumptive death under Article 41 of the Family Code:

The Court believes that respondent Nolasco failed to conduct a search for his
missing wife with such diligence as to give rise to a "well-founded belief" that she is
dead.
United States v. Biasbas, 12 is instructive as to degree of diligence required in
searching for a missing spouse. In that case, defendant Macario Biasbas was
charged with the crime of bigamy. He set-up the defense of a good faith belief that
his first wife had already died. The Court held that defendant had not exercised due
diligence to ascertain the whereabouts of his first wife, noting that:
While the defendant testified that he had made inquiries concerning the
whereabouts of his wife, he fails to state of whom he made such inquiries. He did not
even write to the parents of his first wife, who lived in the Province of Pampanga, for
the purpose of securing information concerning her whereabouts. He admits that he
had a suspicion only that his first wife was dead. He admits that the only basis of his
suspicion was the fact that she had been absent. . . . 13
In the case at bar, the Court considers that the investigation allegedly conducted by
respondent in his attempt to ascertain Janet Monica Parker's whereabouts is too
sketchy to form the basis of a reasonable or well-founded belief that she was already
dead. When he arrived in San Jose, Antique after learning of Janet Monica's
departure, instead of seeking the help of local authorities or of the British
Embassy, 14 he secured another seaman's contract and went to London, a vast city
of many millions of inhabitants, to look for her there.
Q After arriving here in San Jose, Antique, did you exert efforts to inquire the
whereabouts of your wife?

A Yes, Sir.
Court:
How did you do that?
A I secured another contract with the ship and we had a trip to London and I went to
London to look for her I could not find her (sic). 15 (Emphasis supplied)
Respondent's testimony, however, showed that he confused London for Liverpool
and this casts doubt on his supposed efforts to locate his wife in England. The Court
of Appeal's justification of the mistake, to wit:
. . . Well, while the cognoscente (sic) would readily know the geographical difference
between London and Liverpool, for a humble seaman like Gregorio the two places
could mean one place in England, the port where his ship docked and where he
found Janet. Our own provincial folks, every time they leave home to visit relatives in
Pasay City, Kalookan City, or Paraaque, would announce to friends and relatives,
"We're going to Manila." This apparent error in naming of places of destination does
not appear to be fatal. 16
is not well taken. There is no analogy between Manila and its neighboring cities, on
one hand, and London and Liverpool, on the other, which, as pointed out by the
Solicitor-General, are around three hundred fifty (350) kilometers apart. We do not
consider that walking into a major city like Liverpool or London with a simple hope of
somehow bumping into one particular person there which is in effect what
Nolasco says he did can be regarded as a reasonably diligent search.
The Court also views respondent's claim that Janet Monica declined to give any
information as to her personal background even after she had married
respondent 17 too convenient an excuse to justify his failure to locate her. The same
can be said of the loss of the alleged letters respondent had sent to his wife which
respondent claims were all returned to him. Respondent said he had lost these
returned letters, under unspecified circumstances.
Neither can this Court give much credence to respondent's bare assertion that he
had inquired from their friends of her whereabouts, considering that respondent did
not identify those friends in his testimony. The Court of Appeals ruled that since the
prosecutor failed to rebut this evidence during trial, it is good evidence. But this kind
of evidence cannot, by its nature, be rebutted. In any case, admissibility is not
synonymous with credibility. 18 As noted before, there are serious doubts to
respondent's credibility. Moreover, even if admitted as evidence, said testimony
merely tended to show that the missing spouse had chosen not to communicate
with their common acquaintances, and not that she was dead.

Respondent testified that immediately after receiving his mother's letter sometime
in January 1983, he cut short his employment contract to return to San Jose,
Antique. However, he did not explain the delay of nine (9) months from January
1983, when he allegedly asked leave from his captain, to November 1983 when be
finally reached San Jose. Respondent, moreover, claimed he married Janet Monica
Parker without inquiring about her parents and their place of residence. 19 Also,
respondent failed to explain why he did not even try to get the help of the police or
other authorities in London and Liverpool in his effort to find his wife. The
circumstances of Janet Monica's departure and respondent's subsequent behavior
make it very difficult to regard the claimed belief that Janet Monica was dead a wellfounded one.
In Goitia v. Campos-Rueda,

20

the Court stressed that:

. . . Marriage is an institution, the maintenance of which in its purity the public is

deeply interested. It is a relationship for life and the parties cannot terminate it at
any shorter period by virtue of any contract they make. . . . . 21 (Emphasis supplied)
By the same token, the spouses should not be allowed, by the simple expedient of
agreeing that one of them leave the conjugal abode and never to return again, to
circumvent the policy of the laws on marriage. The Court notes that respondent
even tried to have his marriage annulled before the trial court in the same
proceeding.
In In Re Szatraw, 22 the Court warned against such collusion between the parties
when they find it impossible to dissolve the marital bonds through existing legal
means.
While the Court understands the need of respondent's young son, Gerry Nolasco, for
maternal care, still the requirements of the law must prevail. Since respondent failed
to satisfy the clear requirements of the law, his petition for a judicial declaration of
presumptive death must be denied. The law does not view marriage like an ordinary
contract. Article 1 of the Family Code emphasizes that.
. . . Marriage is a special contract of permanent union between a man and a
woman entered into in accordance with law for the establishment of conjugal and
family life. It is the foundation of the familyand an inviolable social
institution whose nature, consequences, and incidents are governed by law and not
subject to stipulation, except that marriage settlements may fix the property
relations during the marriage within the limits provided by this Code. (Emphasis
supplied)
In Arroyo, Jr. v. Court of Appeals,

23

the Court stressed strongly the need to protect.

. . . the basic social institutions of marriage and the family in the preservation of
which the State bas the strongest interest; the public policy here involved is of the

most fundamental kind. In Article II, Section 12 of the Constitution there is set forth
the following basic state policy:
The State recognizes the sanctity of family life and shall protect and strengthen the
family as a basic autonomous social institution. . . .
The same sentiment bas been expressed in the Family Code of the Philippines in
Article 149:
The family, being the foundation of the nation, is a basic social institution which
public policy cherishes and protects. Consequently, family relations are governed by
law and no custom, practice or agreement destructive of the family shall be
recognized or given effect. 24
In fine, respondent failed to establish that he had the well-founded belief required by
law that his absent wife was already dead that would sustain the issuance of a court
order declaring Janet Monica Parker presumptively dead.
WHEREFORE, the Decision of the Court of Appeals dated 23 February 1990, affirming
the trial court's decision declaring Janet Monica Parker presumptively dead is hereby
REVERSED and both Decisions are hereby NULLIFIED and SET ASIDE. Costs against
respondent.
Bidin, Davide, Jr., Romero and Melo, JJ., concur.
Gutierrez, Jr. J., is on leave.

G.R. No. L-43905 May 30, 1983

SERAFIA G. TOLENTINO, petitioner,
vs.
HON. EDGARDO L. PARAS, MARIA CLEMENTE and THE LOCAL CIVIL
REGISTRAR OF PAOMBONG, BULACAN, respondents.
Amelita G. Tolentino for petitioner.
Hermin E. Arceo for Maria Clemente.

dated October 21, 1976, respondent Court, upon private respondent's instance,
dismissed the case, stating:
The Motion to Dismiss filed by the defendants in this case, thru counsel Atty. Hernan
E. Arceo, for the reasons therein mentioned, is hereby GRANTED. Further: (1) the
correction of the entry in the Office of the Local Civil Registrar is not the proper
remedy because the issue involved is marital relationship; (2) the Court has not
acquired proper jurisdiction because as prescribed under Art. 108, read together
with Art. 412 of the Civil Code publication is needed in a case like this, and up to
now, there has been no such publication; and (3) in a sense, the subject matter of
this case has been aptly discussed in Special Proceeding No. 1587-M, which this
Court has already dismissed, for lack of the proper requisites under the law.

The Solicitor General for respondents.

In view of the above dismissal, all other motions in this case are hereby considered
MOOT and ACADEMIC.
MELENCIO-HERRERA, J.:
The reversal of respondent Court's Order, dismissing petitioner's suit for her
"declaration ... as the lawful surviving spouse of deceased Amado Tolentino and the
correction of the death certificate of the same", is sought in this Petition for Review
on Certiorari.
The records disclose that Amado Tolentino had contracted a second marriage with
private respondent herein, Maria Clemente, at Paombong, Bulacan, on November 1,
1948 (Annex "C", Petition), while his marriage with petitioner, Serafia G. Tolentino,
celebrated on July 31, 1943, was still subsisting (Annex "A", Petition).
Petitioner charged Amado with Bigamy in Criminal Case No. 2768 of the Court of
First Instance of Bulacan, Branch II, which Court, upon Amado's plea of guilty,
sentenced him to suffer the corresponding penalty. After Amado had served the
prison sentence imposed on him, he continued to live with private respondent until
his death on July 25, 1974. His death certificate carried the entry "Name of Surviving
Spouse Maria Clemente."
In Special Proceedings No. 1587-M for Correction of Entry, petitioner sought to
correct the name of the surviving spouse in the death certificate from "Maria
Clemente" to "Serafia G. Tolentino", her name. The lower Court dismissed the
petition "for lack of the proper requisites under the law" and indicated the need for a
more detailed proceeding,
Conformably thereto, petitioner filed the case below against private respondent and
the Local Civil Registrar of Paombong, Bulacan, for her declaration as the lawful
surviving spouse, and the correction of the death certificate of Amado. In an Order,

SO ORDERED.

Thus, petitioner's present recourse mainly challenging the grounds relied upon by
respondent Court in ordering dismissal.
We rule for petitioner.
First, for the remedy. Although petitioner's ultimate objective is the correction of
entry contemplated in Article 412 of the Civil Code and Rule 108 of the Rules of
Court, she initially seeks a judicial declaration that she is the lawful surviving spouse
of the deceased, Amado, in order to lay the basis for the correction of the entry in
the death certificate of said deceased. The suit below is a proper remedy. It is of an
adversary character as contrasted to a mere summary proceeding. A claim of right
is asserted against one who has an interest in contesting it. Private respondent, as
the individual most affected; is a party defendant, and has appeared to contest the
petition and defend her interests. The Local Civil Registrar is also a party defendant.
The publication required by the Court below pursuant to Rule 108 of the Rules of
Court is not absolutely necessary for no other parties are involved. After all,
publication is required to bar indifferently all who might be minded to make an
objection of any sort against the right sought to be established. 2 Besides, even
assuming that this is a proceeding under Rule 108, it was the Court that was caned
upon to order the publication, 3 but it did not. in the ultimate analysis, Courts are not
concerned so much with the form of actions as with their substance. 4
Second, for the merits. Considering that Amado, upon his own plea, was convicted
for Bigamy, that sentence furnishes the necessary proof of the marital status of
petitioner and the deceased. There is no better proof of marriage than the admission
by the accused of the existence of such marriage. 5 The second marriage that he
contracted with private respondent during the lifetime of his first spouse is null and

void from the beginning and of no force and effect. 6 No judicial decree is necessary
to establish the invalidity of a void marriage. 7 It can be safely concluded, then,
without need of further proof nor remand to 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 Registrar may,
therefore, be validly made.
Having arrived at the foregoing conclusion, the other issues raised need no longer
be discussed.
In fine, since there is no question regarding the invalidity of Amado's second
marriage with private respondent and that the entry made in the corresponding local
register is thereby rendered false, it may be corrected. 8 While document such as
death and birth certificates, are public and entries therein are presumed to be
correct, such presumption is merely disputable and will have to yield to more
positive evidence establishing their inaccuracy. 9
WHEREFORE, the Order, dated October 21, 1975, of respondent Court is hereby set
aside and petitioner, Serafia G. Tolentino, hereby declared the surviving spouse of
the deceased Amado Tolentino. Let the corresponding correction be made in the
latter's death certificate in the records of the Local Civil Registrar of Paombong,
Bulacan.
No costs.
SOORDERED.

G.R. No. L-53703 August 19, 1986

LILIA OLIVA WIEGEL, petitioner,
vs.
THE HONORABLE ALICIA V. SEMPIO-DIY (as presiding judge of the Juvenile
and Domestic Relations Court of Caloocan City) and KARL HEINZ
WIEGEL, respondents.
Dapucanta, Dulay & Associates for petitioner.
Siguion Reyna, Montecillo and Ongsiako Law Office for private respondent.

PARAS, J.:
In an action (Family Case No. 483) filed before the erstwhile Juvenile and Domestic
Relations Court of Caloocan City, herein respondent Karl Heinz Wiegel (plaintiff
therein) asked for the declaration of Nullity of his marriage (celebrated on July, 1978
at the Holy Catholic Apostolic Christian Church Branch in Makati, Metro Manila) with
herein petitioner Lilia Oliva Wiegel (Lilia, for short, and defendant therein) on the
ground of Lilia's previous existing marriage to one Eduardo A. Maxion, the ceremony
having been performed on June 25, 1972 at our Lady of Lourdes Church in Quezon
City. Lilia, while admitting the existence of said prior subsisting marriage claimed
that said marriage was null and void, she and the first husband Eduardo A. Maxion
having been allegedly forced to enter said marital union. In the pre-trial that ensued,
the issue agreed upon by both parties was the status of the first marriage (assuming
the presence of force exerted against both parties): was said prior marriage void or
was it merely voidable? Contesting the validity of the pre-trial order, Lilia asked the
respondent court for an opportunity to present evidence-

(2) the Order dated April 14, 1980, denying petitioner's motion to allow her to
present evidence in her favor.
We find the petition devoid of merit.
There is no need for petitioner to prove that her first marriage was vitiated by force
committed against both parties because assuming this to be so, the marriage will
not be void but merely viodable (Art. 85, Civil Code), and therefore valid until
annulled. Since no annulment has yet been made, it is clear that when she married
respondent she was still validly married to her first husband, consequently, her
marriage to respondent is VOID (Art. 80, Civil Code).
There is likewise no need of introducing evidence about the existing prior marriage
of her first husband at the time they married each other, for then such a marriage
though void still needs according to this Court a judicial declaration 1 of such fact
and for all legal intents and purposes she would still be regarded as a married
woman at the time she contracted her marriage with respondent Karl Heinz Wiegel);
accordingly, the marriage of petitioner and respondent would be regarded VOID
under the law.
WHEREFORE, this petition is hereby DISMISSED, for lack of merit, and the Orders
complained of are hereby AFFIRMED. Costs against petitioner.
SO ORDERED.

(1) that the first marriage was vitiated by force exercised upon both her and the first
husband; and
(2) that the first husband was at the time of the marriage in 1972 already married
to someone else.
Respondent judge ruled against the presentation of evidence because the existence
of force exerted on both parties of the first marriage had already been agreed upon.
Hence, the present petition for certiorari assailing the following Orders of
therespondent Judge(1) the Order dated March 17, 1980 in which the parties were compelled to submit
the case for resolution based on "agreed facts;" and

10

G.R. No. L-53642 April 15, 1988

LEONILO C. DONATO, petitioners,
vs.
HON. ARTEMON D. LUNA, PRESIDING JUDGE, COURT OF FIRST INSTANCE OF
MANIIA, BRANCH XXXII HON. JOSE FLAMINIANO, CITY FISCAL OF MANILA;
PAZ B. ABAYAN, respondents.
Leopoldo P. Dela Rosa for petitioner.
Emiterio C. Manibog for private respondent.
City Fiscal of Manila for public respondent.

GANCAYCO, J.:
In this petition for certiorari and prohibition with preliminary injunction, the question
for the resolution of the Court is whether or not a criminal case for bigamy pending
before the Court of First Itance of Manila should be suspended in view of a civil case
for annulment of marriage pending before the Juvenile and Domestic Relations Court
on the ground that the latter constitutes a prejudicial question. The respondent
judge ruled in the negative. We sustain him.
The pertinent facts as set forth in the records follow. On January 23, 1979, the City
Fiscal of Manila acting thru Assistant City Fiscal Amado N. Cantor filed an information
for bigamy against herein petitioner, Leonilo C. Donato with the Court of First
Instance of Manila, docketed as Criminal Case No. 43554 and assigned to Branch
XXXII of said court. The information was filed based on the complaint of private
respondent Paz B. Abayan.
On September 28, 1979, before the petitioner's arraignment, private respondent
filed with the Juvenile and Domestic Relations Court of Manila a civil action for
declaration of nullity of her marriage with petitioner contracted on September 26,
1978, which action was docketed as Civil Case No. E-02627. Said civil case was
based on the ground that private respondent consented to entering into the
marriage, which was petitioner Donato's second one, since she had no previous
knowledge that petitioner was already married to a certain Rosalinda R. Maluping on
June 30, 1978. Petitioner Donato's answer in the civil case for nullity interposed the
defense that his second marriage was void since it was solemnized without a
marriage license and that force, violence, intimidation and undue influence were
employed by private respondent to obtain petitioner's consent to the marriage. Prior
to the solemnization of the subsequent or second marriage, petitioner and private
respondent had lived together and deported themselves as husband and wife

without the benefit of wedlock for a period of at least five years as evidenced by a
joint affidavit executed by them on September 26, 1978, for which reason, the
requisite marriage license was dispensed with pursuant to Article 76 of the New Civil
Code pertaining to marriages of exceptional character.
Prior to the date set for the trial on the merits of Criminal Case No. 43554, petitioner
filed a motion to suspend the proceedings of said case contending that Civil Case
No. E-02627 seeking the annulment of his second marriage filed by private
respondent raises a prejudicial question which must first be determined or decided
before the criminal case can proceed.
In an order dated April 7, 1980. Hon. Artemon D. Luna denied the motion to suspend
the proceedings in Criminal Case No. 43554 for bigamy. Respondent judge's basis for
denial is the ruling laid down in the case of Landicho vs. Relova. 1 The order further
directed that the proceedings in the criminal case can proceed as scheduled.
A motion for reconsideration was flied by herein petitioner thru counsel citing as one
of his grounds for suspension of proceedings the ruling laid down by this Court in the
case of De la Cruz vs. Ejercito 2 which was a much later case than that cited by
respondent judge in his order of denial.
The motion for reconsideration of the said order was likewise denied in an order
dated April 14, 1980, for lack of merit. Hence, the present petition for certiorari and
prohibition with preliminary injunction.
A prejudicial question has been defined to be one which arises in a case, the
resolution of which question is a logical antecedent of the issue involved in said
case, and the cognizance of which pertains to another tribunal. 3 It is one based on a
fact distinct and separate from the crime but so intimately connected with it that it
determines the guilt or innocence of the accused, and for it to suspend the criminal
action, it must appear not only that said case involves facts intimately related to
those upon which the criminal prosecution would be based but also that in the
resolution of the issue or issues raised in the civil case, the guilt or innocence of the
accused would necessarily be determined. 4 A prejudicial question usually comes
into play in a situation where a civil action and a criminal action may proceed,
because howsoever the issue raised in the civil action is resolved would be
determinative juris et de jure of the guilt or innocence of the accused in a criminal
case. 5
The requisites of a prejudicial question do not obtain in the case at bar. It must be
noted that the issue before the Juvenile and Domestic Relations Court touching upon
the nullity of the second marriage is not determinative of petitioner Donato's guilt or
innocence in the crime of bigamy. Furthermore, it was petitioner's second wife, the
herein private respondent Paz B. Abayan who filed the complaint for annulment of
the second marriage on the ground that her consent was obtained through deceit.

11

Petitioner Donato raised the argument that the second marriage should have been
declared null and void on the ground of force, threats and intimidation allegedly
employed against him by private respondent only sometime later when he was
required to answer the civil action for anulment of the second marriage. The
doctrine elucidated upon by the case of Landicho vs. Relova 6 may be applied to the
present case. Said case states that:
The mere fact that there are actions to annul the marriages entered into by the
accused in a bigamy case does not mean that "prejudicial questions" are
automatically raised in civil actions as to warrant the suspension of the case. In
order that the case of annulment of marriage be considered a prejudicial question to
the bigamy case against the accused, it must be shown that the petitioner's consent
to such marriage must be the one that was obtained by means of duress, force and
intimidation to show that his act in the second marriage must be involuntary and
cannot be the basis of his conviction for the crime of bigamy. The situation in the
present case is markedly different. At the time the petitioner was indicted for
bigamy on February 27, 1963, the fact that two marriage ceremonies had been
contracted appeared to be indisputable. And it was the second spouse, not the
petitioner who filed the action for nullity on the ground of force, threats and
intimidation. And it was only on June 15, 1963, that petitioner, as defendant in the
civil action, filed a third-party complaint against the first spouse alleging that his
marriage with her should be declared null and void on the ground of force, threats
and intimidation. Assuming that the first marriage was null and void on the ground
alleged by petitioner, the fact would not be material to the outcome of the case.
Parties to the marriage should not be permitted to judge for themselves its nullity,
for the same must be submitted to the judgment of the competent courts and only
when the nullity of the marriage is so declared can it be held as void, and so long as
there is no such declaration the presumption is that the marriage exists. Therefore,
he who contracts a second marriage before the judicial declaration of nullity of the
first marriage assumes the risk of being prosecuted for bigamy. The lower court
therefore, has not abused much less gravely abused, its discretion in failing to
suspend the hearing as sought by petitioner.
In the case at bar, petitioner has not even sufficiently shown that his consent to the
second marriage has been obtained by the use of threats, force and intimidation.
Petitioner calls the attention of this Court to the fact that the case of De la Cruz vs.
Ejercito is a later case and as such it should be the one applied to the case at bar.
We cannot agree. The situation in the case at bar is markedly different. In the
aforecited case it was accused Milagros dela Cruz who was charged with bigamy for
having contracted a second marriage while a previous one existed. Likewise,
Milagros dela Cruz was also the one who filed an action for annulment on the ground
of duress, as contra-distinguished from the present case wherein it was private
respondent Paz B. Abayan, petitioner's second wife, who filed a complaint for
annulment of the second marriage on the ground that her consent was obtained
through deceit since she was not aware that petitioner's marriage was still
subsisting. Moreover, in De la Cruz, a judgment was already rendered in the civil
case that the second marriage of De la Cruz was null and void, thus determinative of

the guilt or innocence of the accused in the criminal case. In the present case, there
is as yet no such judgment in the civil case.
Pursuant to the doctrine discussed in Landicho vs. Relova, petitioner Donato cannot
apply the rule on prejudicial questions since a case for annulment of marriage can
be considered as a prejudicial question to the bigamy case against the accused only
if it is proved that the petitioner's consent to such marriage was obtained by means
of duress, violence and intimidation in order to establish that his act in the
subsequent marriage was an involuntary one and as such the same cannot be the
basis for conviction. The preceding elements do not exist in the case at bar.
Obviously, petitioner merely raised the issue of prejudicial question to evade the
prosecution of the criminal case. The records reveal that prior to petitioner's second
marriage on September 26, 1978, he had been living with private respondent Paz B.
Abayan as husband and wife for more than five years without the benefit of
marriage. Thus, petitioner's averments that his consent was obtained by private
respondent through force, violence, intimidation and undue influence in entering a
subsequent marriage is belled by the fact that both petitioner and private
respondent executed an affidavit which stated that they had lived together as
husband and wife without benefit of marriage for five years, one month and one day
until their marital union was formally ratified by the second marriage and that it was
private respondent who eventually filed the civil action for nullity.
Another event which militates against petitioner's contentions is the fact hat it was
only when Civil Case No. E-02627 was filed on September 28, 1979, or more than
the lapse of one year from the solemnization of the second marriage that petitioner
came up with the story that his consent to the marriage was secured through the
use of force, violence, intimidation and undue influence. Petitioner also continued to
live with private respondent until November 1978, when the latter left their abode
upon learning that Leonilo Donato was already previously married.
In the light of the preceding factual circumstances, it can be seen that the
respondent Judge did not err in his earlier order. There is no pivotal issue that must
be pre-emptively resolved in Civil Case No. E-02627 before proceedings in the
criminal action for bigamy can be undertaken.
Accordingly, there being no prejudicial question shown to exit the order of denial
issued by the respondent judge dated April 14, 1980 should be sustained.
WHEREFORE, in view of the foregoing, the instant petition is hereby DISMISSED for
lack of merit. We make no pronouncement as to costs.
SO ORDERED.
Teehankee, C.J., Narvasa, Cruz and Grio-Aquino, JJ., concur.

12

13

A.M. No. 2349 July 3, 1992

DOROTHY B. TERRE, complainant,
vs.
ATTY. JORDAN TERRE, respondent.
PER CURIAM:
In a sworn complaint filed with this Court on 24 December 1981, complainant
Dorothy B. Terre charged respondent Jordan Terre, a member of the Philippine Bar
with "grossly immoral conduct," consisting of contracting a second marriage and
living with another woman other than complainant, while his prior marriage with
complainant remained subsisting.
The Court resolved to require respondent to answer the complaint. 1 Respondent
successfully evaded five (5) attempts to serve a copy of the Court's Resolution and
of the complaint by moving from one place to another, such that he could not be
found nor reached in his alleged place of employment or residence. 2 On 24 April
1985, that is after three (3) years and a half, with still no answer from the
respondent, the Court noted respondent's success in evading service of the
complaint and the Court's Resolution and thereupon resolved to "suspend
respondent Atty. Jordan Terre from the practice of law until after he appears and/or
files his answer to the complaint against him" in the instant
case. 3
On 28 September 1985, respondent finally filed an Answer with a Motion to Set
Aside and/or Lift Suspension Order. In his Answer, Atty. Terre averred that he had
contracted marriage with complainant Dorothy Terre on 14 June 1977 upon her
representation that she was single; that he subsequently learned that Dorothy was
married to a certain Merlito A. Bercenilla sometime in 1968; that when he confronted
Dorothy about her prior marriage, Dorothy drove him out of their conjugal residence;
that Dorothy had mockingly told him of her private meetings with Merlito A.
Bercenilla and that the child she was then carrying (i.e., Jason Terre) was the son of
Bercenilla; that believing in good faith that his marriage to complainant was null and
void ab initio, he contracted marriage with Helina Malicdem at Dasol, Pangasinan. 4
In her Reply, complainant Dorothy denied that Jason Terre was the child of Merlito A.
Bercenilla and insisted that Jason was the child of respondent Jordan Terre, as
evidenced by Jason's Birth Certificate and physical resemblance to respondent.
Dorothy further explained that while she had given birth to Jason Terre at the PAFGH
registered as a dependent of Merlito Bercenilla, she had done so out of extreme
necessity and to avoid risk of death or injury to the fetus which happened to be in a
difficult breech position. According to Dorothy, she had then already been
abandoned by respondent Jordan Terre, leaving her penniless and without means to
pay for the medical and hospital bills arising by reason of her pregnancy.
The Court denied respondent's Motion to Set Aside or Lift the Suspension Order and
instead referred; by a Resolution dated 6 January 1986, the complaint to the Office
of the Solicitor General for investigation, report and recommendation. 5
Then Solicitor Pio C. Guerrero was appointed investigator by the Office of the
Solicitor General. He set the case for hearing on 7 July 1986 with notice to both
parties. On 7 July 1986, complainant Dorothy appeared and presented her evidence
ex parte, since respondent did not so appear. 6 The Investigating Solicitor scheduled
and held another hearing on 19 August 1986, where he put clarificatory questions to
the complainant; respondent once again did not appear despite notice to do so.

Complainant finally offered her evidence and rested her case. The Solicitor set still
another hearing for 2 October 1986, notifying respondent to present his evidence
with a warning that should he fail once more to appear, the case would be deemed
submitted for resolution. Respondent did not appear on 2 October 1986. The
Investigating Solicitor accordingly considered respondent to have waived his right to
present evidence and declared the case submitted for resolution. The parties were
given time to submit their respective memoranda. Complainant Dorothy did so on 8
December 1986. Respondent Terre did not file his memorandum.
On 26 February 1990, the Office of the Solicitor General submitted its "Report and
Recommendation" to this Court. The Report summarized the testimony of the
complainant in the following manner:
Complainant Dorothy Terre took the witness stand and testified substantially as
follows: she and respondent met for the first time in 1979 as fourth year high school
classmates in Cadiz City High School (tsn, July 7, 1986, p. 9); she was then married
to Merlito Bercenilla, while respondent was single (id.); respondent was aware of her
marital status (ibid, p. 14); it was then that respondent started courting her but
nothing happened of the courtship (ibid, p. 10); they [complainant and respondent]
moved to Manila were they respectively pursued their education, respondent as a
law student at the Lyceum University (tsn, July 7, 1986, p. 12, 15-16); respondent
continued courting her, this time with more persistence (ibid, p. 11); she decided
nothing would come of it since she was married but he [respondent] explained to
her that their marriage was void ab initio since she and her first husband were first
cousins (ibid, p. 12); convinced by his explanation and having secured favorable
advice from her mother and
ex-in-laws, she agreed to marry him [respondent] (ibid, 12-13, 16); in their marriage
license, despite her [complainant's] objection, he [respondent] wrote "single" as her
status explaining that since her marriage was void ab initio, there was no need to go
to court to declare it as such (ibid, 14-15); they were married before Judge Priscilla
Mijares of the City Court of Manila on June 14, 1977 (Exhibit A; tsn, July 7, 1986, pp.
16-17); Jason Terre was born of their union on June 25, 1981 (Exhibit B, tsn, July 7,
1986, p. 18); all through their married state up to the time he [respondent]
disappeared in 1981, complainant supported respondent, in addition to the
allowance the latter was getting from his parents (ibid, pp. 19-20); she was unaware
of the reason for his disappearance until she found out later that respondent married
a certain Vilma [sic] Malicdem (Exhibit C, tsn, July 7, 1986, pp. 21-22); she then filed
a case for abandonment of minor with the City Fiscal of Pasay City (ibid, p. 23) which
was subsequently filed before Branch II of the City Court of Pasay City as Criminal
Case No. 816159 (Exhibit D; tsn, July 7, 1986, p. 24); she likewise filed a case for
bigamy against respondent and Helina Malicdem with the office of the Provincial
Fiscal of Pangasinan, where a prima facie case was found to exist (Exhibit E; tsn, July
7, pp. 25-26); additionally, complainant filed an administrative case against
respondent with the Commission on Audit where he was employed, which case
however was considered closed for being moot and academic when respondent was
considered automatically separated from the service for having gone on absence
without official leave (Exhibit F; tsn, July 7, 1986, pp. 28-29). 7
There is no dispute over the fact that complainant Dorothy Terre and respondent
Jordan Terre contracted marriage on 14 July 1977 before Judge Priscilla Mijares.
There is further no dispute over the fact that on 3 May 1981, respondent Jordan
Terre married Helina Malicdem in Dasol, Pangasinan. When the second marriage was

14

entered into, respondent's prior marriage with complainant was subsisting, no

judicial action having been initiated or any judicial declaration obtained as to the
nullity of such prior marriage of respondent with complainant.
Respondent Jordan Terre sought to defend himself by claiming that he had believed
in good faith that his prior marriage with complainant Dorothy Terre was null and
void ab initio and that no action for a judicial declaration of nullity was necessary.
The Court considers this claim on the part of respondent Jordan Terre as a spurious
defense. In the first place, respondent has not rebutted complainant's evidence as to
the basic facts which underscores the bad faith of respondent Terre. In the second
place, that pretended defense is the same argument by which he had inveigled
complainant into believing that her prior marriage to Merlito A. Bercenilla being
incestuous and void ab initio (Dorothy and Merlito being allegedly first cousins to
each other), she was free to contract a second marriage with the respondent.
Respondent Jordan Terre, being a lawyer, knew or should have known that such an
argument ran counter to the prevailing case law of this Court which holds that for
purposes of determining whether a person is legally free to contract a second
marriage, a judicial declaration that the first marriage was null and void ab initio is
essential. 8 Even if we were to assume, arguendo merely, that Jordan Terre held that
mistaken belief in good faith, the same result will follow. For if we are to hold Jordan
Terre to his own argument, his first marriage to complainant Dorothy Terre must be
deemed valid, with the result that his second marriage to Helina Malicdem must be
regarded as bigamous and criminal in character.
That the moral character of respondent Jordan Terre was deeply flawed is shown by
other circumstances. As noted, he convinced the complainant that her prior
marriage to Bercenilla was null and void ab initio, that she was still legally single and
free to marry him. When complainant and respondent had contracted their
marriage, respondent went through law school while being supported by
complainant, with some assistance from respondent's parents. After respondent had
finished his law course and gotten complainant pregnant, respondent abandoned
the complainant without support and without the wherewithal for delivering his own
child safely in a hospital.
Thus, we agree with the Solicitor General that respondent Jordan Terre, by his
actions, "eloquently displayed, not only his unfitness to remain as a member of the
Bar, but likewise his inadequacy to uphold the purpose and responsibility of his
gender" because marriage is a basic social institution. 9
In Pomperada v. Jochico, 10 the Court, in rejecting a petition to be allowed to take the
oath as a member of the Bar and to sign the Roll of Attorneys, said through Mme.
Justice Melencio-Herrera:
It is evident that respondent fails to meet the standard of moral fitness for
membership in the legal profession. Whether the marriage was a joke as respondent
claims, or a trick played on her as claimed by complainant, it does not speak well of
respondent's moral values. Respondent had made a mockery of marriage, a basic
social institution which public policy cherishes and protects (Article 216, Civil Code).

money from complainant. . . . ." The Court held such acts "indicative of a character
not worthy of a member of the Bar." 13
We believe and so hold that the conduct of respondent Jordan Terre in inveigling
complainant Dorothy Terre to contract a second marriage with him; in abandoning
complainant Dorothy Terre after she had cared for him and supported him through
law school, leaving her without means for the safe delivery of his own child; in
contracting a second marriage with Helina Malicdem while his first marriage with
complainant Dorothy Terre was subsisting, constituted "grossly immoral conduct"
under Section 27 of Rule 138 of the Rules of Court, affording more than sufficient
basis for disbarment of respondent Jordan Terre. He was unworthy of admission to
the Bar in the first place. The Court will correct this error forthwith.
WHEREFORE, the Court Resolved to DISBAR respondent Jordan Terre and to STRIKE
OUT his name from the Roll of Attorneys. A copy of this decision shall be spread on
the personal record of respondent Jordan Terre in the Bar Confidant's Office. A copy
of this resolution shall also be furnished to the Integrated Bar of the Philippines and
shall be circularized to all the courts of the land.
SO ORDERED

11

In Bolivar v. Simbol, 12 the Court found the respondent there guilty of "grossly
immoral conduct" because he made a dupe of complainant, living on her bounty and
allowing her to spend for his schooling and other personal necessities while dangling
before her the mirage of a marriage, marrying another girl as soon as he had
finished his studies, keeping his marriage a secret while continuing to demand

15

G.R. No. 109454 June 14, 1994

JOSE C. SERMONIA, petitioner,
vs.
HON. COURT OF APPEALS, Eleventh Division, HON. DEOGRACIAS
FELIZARDO, Presiding Judge, Regional Trial Court of Pasig, Br. 151, and
JOSEPH SINSAY, respondents.
Quasha, Asperilla, Ancheta, Pea and Nolasco for petitioner.
Ponciano L. Escuadra for private respondent.

BELLOSILLO, J.:
Bigamy is an illegal marriage committed by contracting a second or subsequent
marriage before the first marriage has been legally dissolved, or before the absent
spouse has been declared presumptively dead by means of a judgment rendered in
the proper proceedings. 1 Bigamy carries with it the imposable penalty of prision
mayor. Being punishable by an afflictive penalty, this crime prescribes in fifteen (15)
years. 2 The fifteen-year prescriptive period commences to run from the day on
which the crime is discovered by the offended party, the authorities, or their agents .
. .3
That petitioner contracted a bigamous marriage seems impliedly admitted. 4 At
least, it is not expressly denied. Thus the only issue for resolution is whether his
prosecution for bigamy is already time-barred, which hinges on whether its
discovery is deemed to have taken place from the time the offended party actually
knew of the second marriage or from the time the document evidencing the
subsequent marriage was registered with the Civil Registry consistent with the rule
on constructive notice.
The antecedents: In an information filed on 26 May 1992, petitioner Jose C.
Sermonia was charged with bigamy before the Regional Trial Court of Pasig, Br. 151,
for contracting marriage with Ma. Lourdes Unson on 15 February 1975 while his prior
marriage to Virginia C. Nievera remained valid and subsisting. 5
Petitioner moved to quash the information on the ground that his criminal liability for
bigamy has been extinguished by prescription.
In the order of 1 October 1992, respondent judge denied the motion to quash. On 27
October 1992, he likewise denied the motion to reconsider his order of denial.

Petitioner challenged the above orders before the Court of Appeals through a
petition for certiorari and prohibition. In the assailed decision of
21 January 1993, his petition was dismissed for lack of merit. 6
In this recourse, petitioner contends that his criminal liability for bigamy has been
obliterated by prescription. He avers that since the second marriage contract was
duly registered with the Office of the Civil Registrar in 1975, 7such fact of registration
makes it a matter of public record and thus constitutes notice to the whole world.
The offended party therefore is considered to have had constructive notice of the
subsequent marriage as of 1975; hence, prescription commenced to run on the day
the marriage contract was registered. For this reason, the corresponding information
for bigamy should have been filed on or before 1990 and not only in 1992.
Petitioner likewise takes issue with the "alleged concealment of the bigamous
marriage" as declared by the appellate court, insisting that the second marriage was
publicly held at Our Lady of Nativity Church in Marikina on
15 February 1975, and adding for good measure that from the moment of
registration the marriage contract was open to inspection by any interested person.
On the other hand, the prosecution maintains that the prescriptive period does not
begin from the commission of the crime but from the time of discovery by
complainant which was in July 1991.
While we concede the point that the rule on constructive notice in civil cases may be
applied in criminal actions if the factual and legal circumstances so warrant, 8 we
agree with the view expounded by the Court of Appeals that it cannot apply in the
crime of bigamy notwithstanding the possibility of its being more favorable to the
accused. The appellate court succinctly explains
Argued by the petitioner is that the principle of constructive notice should be applied
in the case at bar, principally citing in support of his stand, the cases of People
v. Reyes (175 SCRA 597); andPeople v. Dinsay (40 SCRA 50).
This Court is of the view that the principle of constructive notice should not be
applied in regard to the crime of bigamy as judicial notice may be taken of the fact
that a bigamous marriage is generally entered into by the offender in secrecy from
the spouse of the previous subsisting marriage. Also, a bigamous marriage is
generally entered into in a place where the offender is not known to be still a
married person, in order to conceal his legal impediment to contract another
marriage.
In the case of real property, the registration of any transaction involving any right or
interest therein is made in the Register of Deeds of the place where the said
property is located. Verification in the office of the Register of Deeds concerned of
the transactions involving the said property can easily be made by any interested

16

party. In the case of a bigamous marriage, verification by the offended person or the
authorities of the same would indeed be quite difficult as such a marriage may be
entered into in a place where the offender is not known to be still a married person.
Be it noted that in the criminal cases cited by the petitioner wherein constructive
notice was applied, involved therein were land or property disputes and certainly,
marriage is not property.
The non-application to the crime of bigamy of the principle of constructive notice is
not contrary to the well entrenched policy that penal laws should be construed
liberally in favor of the accused. To compute the prescriptive period for the offense
of bigamy from registration thereof would amount to almost absolving the offenders
thereof for liability therefor. While the celebration of the bigamous marriage may be
said to be open and made of public record by its registration, the offender however
is not truthful as he conceals from the officiating authority and those concerned the
existence of his previous subsisting marriage. He does not reveal to them that he is
still a married person. He likewise conceals from his legitimate spouse his bigamous
marriage. And for these, he contracts the bigamous marriage in a place where he is
not known to be still a married person. And such a place may be anywhere, under
which circumstance, the discovery of the bigamous marriage is rendered quite
difficult and would take time. It is therefore reasonable that the prescriptive period
for the crime of bigamy should be counted only from the day on which the said
crime was discovered by the offended party, the authorities or their agency (sic).
Considering such concealment of the bigamous marriage by the offender, if the
prescriptive period for the offense of bigamy were to be counted from the date of
registration thereof, the prosecution of the violators of the said offense would almost
be impossible. The interpretation urged by the petitioner would encourage fearless
violations of a social institution cherished and protected by law. 9

Finally, petitioner would want us to believe that there was no concealment at all
because his marriage contract with Ms. Unson was recorded in the Civil Registry
which is open to all and sundry for inspection. We cannot go along with his argument
because why did he indicate in the marriage contract that he was "single" thus
obviously hiding his true status as a married man? Or for that matter, why did he not
simply tell his first wife about the subsequent marriage in Marikina so that
everything would be out in the open. The answer is obvious: He knew that no priest
or minister would knowingly perform or authorize a bigamous marriage as this would
subject him to punishment under the Marriage Law. 10 Obviously, petitioner had no
intention of revealing his duplicity to his first spouse and gambled instead on the
probability that she or any third party would ever go to the local civil registrar to
inquire. In the meantime, through the simple expedience of having the second
marriage recorded in the local civil registry, he has set into motion the running of
the fifteen-year prescriptive period against the unwary and the unsuspecting victim
of his philandering.
Were we to put our imprimatur to the theory advanced by petitioner, in all likelihood
we would be playing right into the hands of philanderers. For we would be equating
the contract of marriage with ordinary deeds of conveyance and other similar
documents without due regard for the stability of marriage as an inviolable social
institution, the preservation of which is a primary concern of our society.
WHEREFORE, finding no reversible error in the questioned decision of the Court of
Appeals, the same is AFFIRMED.
SO ORDERED.

To this we may also add that the rule on constructive notice will make
de rigueur the routinary inspection or verification of the marriages listed in the
National Census Office and in various local civil registries all over the country to
make certain that no second or even third marriage has been contracted without the
knowledge of the legitimate spouse. This is too formidable a task to even
contemplate.
More importantly, while Sec. 52 of P.D. 1529 (Property Registration Decree) provides
for constructive notice to all persons of every conveyance, mortgage, lease, lien,
attachment, order, judgment, instrument or entry affecting registered land filed or
entered in the office of the Register of Deeds for the province or city where the land
to which it relates lies from the time of such registering, filing or entering, there is no
counterpart provision either in Act
No. 3753 (Act to Establish a Civil Register) or in Arts. 407 to 413 of the Civil Code,
which leads us to the conclusion that there is no legal basis for applying the
constructive notice rule to the documents registered in the Civil Register.

17

[G.R. No. 145226. February 06, 2004]

LUCIO

MORIGO
y
CACHO, petitioner,
PHILIPPINES, respondent.

vs.

PEOPLE

OF

THE

DECISION
QUISUMBING, J.:
This petition for review on certiorari seeks to reverse the decision[1] dated
October 21, 1999 of the Court of Appeals in CA-G.R. CR No. 20700, which affirmed
the judgment[2] dated August 5, 1996 of the Regional Trial Court (RTC) of Bohol,
Branch 4, in Criminal Case No. 8688. The trial court found herein petitioner Lucio
Morigo y Cacho guilty beyond reasonable doubt of bigamy and sentenced him to a
prison term of seven (7) months ofprision correccional as minimum to six (6) years
and one (1) day of prision mayor as maximum. Also assailed in this petition is the
resolution[3] of the appellate court, dated September 25, 2000, denying Morigos
motion for reconsideration.
The facts of this case, as found by the court a quo, are as follows:
Appellant Lucio Morigo and Lucia Barrete were boardmates at the house of Catalina
Tortor at Tagbilaran City, Province of Bohol, for a period of four (4) years (from 19741978).
After school year 1977-78, Lucio Morigo and Lucia Barrete lost contact with each
other.
In 1984, Lucio Morigo was surprised to receive a card from Lucia Barrete from
Singapore. The former replied and after an exchange of letters, they became
sweethearts.
In 1986, Lucia returned to the Philippines but left again for Canada to work there.
While in Canada, they maintained constant communication.
In 1990, Lucia came back to the Philippines and proposed to petition appellant to
join her in Canada. Both agreed to get married, thus they were married on August
30, 1990 at the Iglesia de Filipina Nacional at Catagdaan, Pilar, Bohol.
On September 8, 1990, Lucia reported back to her work in Canada leaving appellant
Lucio behind.

On August 19, 1991, Lucia filed with the Ontario Court (General Division) a petition
for divorce against appellant which was granted by the court on January 17, 1992
and to take effect on February 17, 1992.
On October 4, 1992, appellant Lucio Morigo married Maria Jececha Lumbago [4] at
the Virgen sa Barangay Parish, Tagbilaran City, Bohol.
On September 21, 1993, accused filed a complaint for judicial declaration of nullity
of marriage in the Regional Trial Court of Bohol, docketed as Civil Case No. 6020. The
complaint seek (sic) among others, the declaration of nullity of accuseds marriage
with Lucia, on the ground that no marriage ceremony actually took place.
On October 19, 1993, appellant was charged with Bigamy in an Information [5] filed
by the City Prosecutor of Tagbilaran [City], with the Regional Trial Court of Bohol. [6]
The petitioner moved for suspension of the arraignment on the ground that the
civil case for judicial nullification of his marriage with Lucia posed a prejudicial
question in the bigamy case. His motion was granted, but subsequently denied upon
motion for reconsideration by the prosecution. When arraigned in the bigamy case,
which was docketed as Criminal Case No. 8688, herein petitioner pleaded not guilty
to the charge. Trial thereafter ensued.
On August 5, 1996, the RTC of Bohol handed down its judgment in Criminal
Case No. 8688, as follows:
WHEREFORE, foregoing premises considered, the Court finds accused Lucio Morigo y
Cacho guilty beyond reasonable doubt of the crime of Bigamy and sentences him to
suffer the penalty of imprisonment ranging from Seven (7) Months of Prision
Correccional as minimum to Six (6) Years and One (1) Day of Prision Mayoras
maximum.
SO ORDERED.[7]
In convicting herein petitioner, the trial court discounted petitioners claim that
his first marriage to Lucia was null and void ab initio. FollowingDomingo v. Court of
Appeals,[8] the trial court ruled that want of a valid marriage ceremony is not a
defense in a charge of bigamy. The parties to a marriage should not be allowed to
assume that their marriage is void even if such be the fact but must first secure a
judicial declaration of the nullity of their marriage before they can be allowed to
marry again.
Anent the Canadian divorce obtained by Lucia, the trial court cited Ramirez
v. Gmur,[9] which held that the court of a country in which neither of the spouses is
domiciled and in which one or both spouses may resort merely for the purpose of
obtaining a divorce, has no jurisdiction to determine the matrimonial status of the

18

parties. As such, a divorce granted by said court is not entitled to recognition

anywhere. Debunking Lucios defense of good faith in contracting the second
marriage, the trial court stressed that following People v. Bitdu,[10] everyone is
presumed to know the law, and the fact that one does not know that his act
constitutes a violation of the law does not exempt him from the consequences
thereof.

in the opinion prepared by Justice Bernardo P. Abesamis. The dissent observed that
as the first marriage was validly declared void ab initio, then there was no first
marriage to speak of. Since the date of the nullity retroacts to the date of the first
marriage and since herein petitioner was, in the eyes of the law, never married, he
cannot be convicted beyond reasonable doubt of bigamy.
The present petition raises the following issues for our resolution:

Seasonably, petitioner filed an appeal with the Court of Appeals, docketed as

CA-G.R. CR No. 20700.
Meanwhile, on October 23, 1997, or while CA-G.R. CR No. 20700 was pending
before the appellate court, the trial court rendered a decision in Civil Case No. 6020
declaring the marriage between Lucio and Lucia void ab initio since no marriage
ceremony actually took place. No appeal was taken from this decision, which then
became final and executory.
On October 21, 1999, the appellate court decided CA-G.R. CR No. 20700 as
follows:
WHEREFORE, finding no error in the appealed decision, the same is hereby
AFFIRMED in toto.
SO ORDERED.[11]
In affirming the assailed judgment of conviction, the appellate court stressed
that the subsequent declaration of nullity of Lucios marriage to Lucia in Civil Case
No. 6020 could not acquit Lucio. The reason is that what is sought to be punished by
Article 349[12] of the Revised Penal Code is the act of contracting a second marriage
before the first marriage had been dissolved. Hence, the CA held, the fact that the
first marriage was void from the beginning is not a valid defense in a bigamy case.
The Court of Appeals also pointed out that the divorce decree obtained by
Lucia from the Canadian court could not be accorded validity in the Philippines,
pursuant to Article 15[13] of the Civil Code and given the fact that it is contrary to
public policy in this jurisdiction. Under Article 17 [14] of the Civil Code, a declaration of
public policy cannot be rendered ineffectual by a judgment promulgated in a foreign
jurisdiction.
Petitioner moved for reconsideration of the appellate courts decision,
contending that the doctrine in Mendiola v. People,[15] allows mistake upon a difficult
question of law (such as the effect of a foreign divorce decree) to be a basis for good
faith.
On September 25, 2000, the appellate court denied the motion for lack of
merit.[16] However, the denial was by a split vote. The ponente of the appellate
courts original decision in CA-G.R. CR No. 20700, Justice Eugenio S. Labitoria, joined

A.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPLY THE RULE
THAT IN CRIMES PENALIZED UNDER THE REVISED PENAL CODE, CRIMINAL INTENT IS
AN INDISPENSABLE REQUISITE. COROLLARILY, WHETHER OR NOT THE COURT OF
APPEALS ERRED IN FAILING TO APPRECIATE [THE] PETITIONERS LACK OF CRIMINAL
INTENT WHEN HE CONTRACTED THE SECOND MARRIAGE.
B.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN HOLDING THAT THE RULING IN
PEOPLE VS. BITDU (58 PHIL. 817) IS APPLICABLE TO THE CASE AT BAR.
C.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPLY THE RULE
THAT EACH AND EVERY CIRCUMSTANCE FAVORING THE INNOCENCE OF THE
ACCUSED MUST BE TAKEN INTO ACCOUNT.[17]
To our mind, the primordial issue should be whether or not petitioner
committed bigamy and if so, whether his defense of good faith is valid.
The petitioner submits that he should not be faulted for relying in good faith
upon the divorce decree of the Ontario court. He highlights the fact that he
contracted the second marriage openly and publicly, which a person intent upon
bigamy would not be doing. The petitioner further argues that his lack of criminal
intent is material to a conviction or acquittal in the instant case. The crime of
bigamy, just like other felonies punished under the Revised Penal Code, is mala in
se, and hence, good faith and lack of criminal intent are allowed as a complete
defense. He stresses that there is a difference between the intent to commit the
crime and the intent to perpetrate the act. Hence, it does not necessarily follow that
his intention to contract a second marriage is tantamount to an intent to commit
bigamy.
For the respondent, the Office of the Solicitor General (OSG) submits that good
faith in the instant case is a convenient but flimsy excuse. The Solicitor General
relies upon our ruling in Marbella-Bobis v. Bobis,[18] which held that bigamy can be
successfully prosecuted provided all the elements concur, stressing that under

19

Article 40[19] of the Family Code, a judicial declaration of nullity is a must before a
party may re-marry. Whether or not the petitioner was aware of said Article 40 is of
no account as everyone is presumed to know the law. The OSG counters that
petitioners contention that he was in good faith because he relied on the divorce
decree of the Ontario court is negated by his act of filing Civil Case No. 6020,
seeking a judicial declaration of nullity of his marriage to Lucia.
Before we delve into petitioners defense of good faith and lack of criminal
intent, we must first determine whether all the elements of bigamy are present in
this case. In Marbella-Bobis v. Bobis,[20] we laid down the elements of bigamy thus:
(1) the offender has been legally married;
(2) the first marriage has not been legally dissolved, or in case his or her spouse is
absent, the absent spouse has not been judicially declared presumptively dead;
(3) he contracts a subsequent marriage; and
(4) the subsequent marriage would have been valid had it not been for the existence
of the first.
Applying the foregoing test to the instant case, we note that during the
pendency of CA-G.R. CR No. 20700, the RTC of Bohol Branch 1, handed down the
following decision in Civil Case No. 6020, to wit:
WHEREFORE, premises considered, judgment is hereby rendered decreeing the
annulment of the marriage entered into by petitioner Lucio Morigo and Lucia Barrete
on August 23, 1990 in Pilar, Bohol and further directing the Local Civil Registrar of
Pilar, Bohol to effect the cancellation of the marriage contract.
SO ORDERED.[21]
The trial court found that there was no actual marriage ceremony performed
between Lucio and Lucia by a solemnizing officer. Instead, what transpired was a
mere signing of the marriage contract by the two, without the presence of a
solemnizing officer. The trial court thus held that the marriage is void ab initio, in
accordance with Articles 3[22] and 4[23] of the Family Code. As the dissenting opinion
in CA-G.R. CR No. 20700, correctly puts it, This simply means that there was no
marriage to begin with; and that such declaration of nullity retroacts to the date of
the first marriage. In other words, for all intents and purposes, reckoned from the
date of the declaration of the first marriage as void ab initio to the date of the
celebration of the first marriage, the accused was, under the eyes of the law, never
married.[24] The records show that no appeal was taken from the decision of the trial
court in Civil Case No. 6020, hence, the decision had long become final and
executory.

The first element of bigamy as a crime requires that the accused must have
been legally married. But in this case, legally speaking, the petitioner was never
married to Lucia Barrete. Thus, there is no first marriage to speak of. Under the
principle of retroactivity of a marriage being declared voidab initio, the two were
never married from the beginning. The contract of marriage is null; it bears no legal
effect. Taking this argument to its logical conclusion, for legal purposes, petitioner
was not married to Lucia at the time he contracted the marriage with Maria Jececha.
The existence and the validity of the first marriage being an essential element of the
crime of bigamy, it is but logical that a conviction for said offense cannot be
sustained where there is no first marriage to speak of. The petitioner, must, perforce
be acquitted of the instant charge.
The present case is analogous to, but must be distinguished from Mercado v.
Tan.[25] In the latter case, the judicial declaration of nullity of the first marriage was
likewise obtained after the second marriage was already celebrated. We held therein
that:
A judicial declaration of nullity of a previous marriage is necessary before a
subsequent one can be legally contracted. One who enters into a subsequent
marriage without first obtaining such judicial declaration is guilty of bigamy. This
principle applies even if the earlier union is characterized by statutes as void. [26]
It bears stressing though that in Mercado, the first marriage was actually
solemnized not just once, but twice: first before a judge where a marriage certificate
was duly issued and then again six months later before a priest in religious rites.
Ostensibly, at least, the first marriage appeared to have transpired, although later
declared void ab initio.
In the instant case, however, no marriage ceremony at all was performed by a
duly authorized solemnizing officer. Petitioner and Lucia Barrete merely signed a
marriage contract on their own. The mere private act of signing a marriage contract
bears no semblance to a valid marriage and thus, needs no judicial declaration of
nullity. Such act alone, without more, cannot be deemed to constitute an ostensibly
valid marriage for which petitioner might be held liable for bigamy unless he first
secures a judicial declaration of nullity before he contracts a subsequent marriage.
The law abhors an injustice and the Court is mandated to liberally construe a
penal statute in favor of an accused and weigh every circumstance in favor of the
presumption of innocence to ensure that justice is done. Under the circumstances of
the present case, we held that petitioner has not committed bigamy. Further, we
also find that we need not tarry on the issue of the validity of his defense of good
faith or lack of criminal intent, which is now moot and academic.
WHEREFORE, the instant petition is GRANTED. The assailed decision, dated
October 21, 1999 of the Court of Appeals in CA-G.R. CR No. 20700, as well as the
resolution of the appellate court dated September 25, 2000, denying herein
petitioners motion for reconsideration, is REVERSED and SET ASIDE. The petitioner

20

Lucio Morigo y Cacho is ACQUITTED from the charge of BIGAMY on the ground that
his guilt has not been proven with moral certainty.
SO ORDERED.

21

G.R. No. 136467

April 6, 2000

ANTONIA ARMAS Y CALISTERIO, petitioner,

vs.
MARIETTA CALISTERIO, respondent.

VITUG, J.:
On 24 April 1992, Teodorico Calisterio died intestate, leaving several parcels of land
with an estimated value of P604,750.00. Teodorico was survived by his wife, herein
respondent Marietta Calisterio.
Teodorico was the second husband of Marietta who had previously been married to
James William Bounds on 13 January 1946 at Caloocan City. James Bounds
disappeared without a trace on 11 February 1947. Teodorico and Marietta were
married eleven years later, or on 08 May 1958, without Marietta having priorly
secured a court declaration that James was presumptively dead.
On 09 October 1992, herein petitioner Antonia Armas y Calisterio, a surviving sister
of Teodorico, filed with the Regional Trial Court ("RTC") of Quezon City, Branch 104, a
petition entitled, "In the Matter of Intestate Estate of the Deceased Teodorico
Calisterio y Cacabelos, Antonia Armas, Petitioner," claiming to be inter alia, the sole
surviving heir of Teodorico Calisterio, the marriage between the latter and
respondent Marietta Espinosa Calisterio being allegedly bigamous and thereby null
and void. She prayed that her son Sinfroniano C. Armas, Jr., be appointed
administrator, without bond, of the estate of the deceased and that the inheritance
be adjudicated to her after all the obligations of the estate would have been settled.
Respondent Marietta opposed the petition. Marietta stated that her first marriage
with James Bounds had been dissolved due to the latter's absence, his whereabouts
being unknown, for more than eleven years before she contracted her second
marriage with Teodorico. Contending to be the surviving spouse of Teodorico, she
sought priority in the administration of the estate of the decedent.
On 05 February 1993, the trial court issued an order appointing jointly Sinfroniano C.
Armas, Jr., and respondent Marietta administrator and administratrix, respectively, of
the intestate estate of Teodorico.
On 17 January 1996, the lower court handed down its decision in favor of petitioner
Antonia; it adjudged:

WHEREFORE, judgment is hereby rendered finding for the petitioner and against the
oppositor whereby herein petitioner, Antonia Armas y Calisterio, is declared as the
sole heir of the estate of Teodorico Calisterio y Cacabelos. 1
Respondent Marietta appealed the decision of the trial court to the Court of Appeals,
formulating that
1. The trial court erred in applying the provisions of the Family Code in the instant
case despite the fact that the controversy arose when the New Civil Code was the
law in force.
2. The trial court erred in holding that the marriage between oppositor-appellant and
the deceased Teodorico Calisterio is bigamous for failure of the former to secure a
decree of the presumptive death of her first spouse.
3. The trial court erred in not holding that the property situated at No. 32 Batangas
Street, San Francisco del Monte, Quezon City, is the conjugal property of the
oppositor-appellant and the deceased Teodorico Calisterio.
4. The trial court erred in holding that oppositor-appellant is not a legal heir of
deceased Teodorico Calisterio.
5. The trial court erred in not holding that letters of administration should be granted
solely in favor of oppositor-appellant. 2
On 31 August 1998, the appellate court, through Mr. Justice Conrado M. Vasquez, Jr.,
promulgated its now assailed decision, thus:
IN VIEW OF ALL THE FOREGOING, the Decision appealed from is REVERSED
AND SET ASIDE, and a new one entered declaring as follows:
(a) Marietta Calisterio's marriage to Teodorico remains valid;
(b) The house and lot situated at #32 Batangas Street, San Francisco del Monte,
Quezon City, belong to the conjugal partnership property with the concomitant
obligation of the partnership to pay the value of the land to Teodorico's estate as of
the time of the taking;
(c) Marietta Calisterio, being Teodorico's compulsory heir, is entitled to one half of
her husband's estate, and Teodorico's sister, herein petitioner Antonia Armas and
her children, to the other half;
(d) The trial court is ordered to determine the competence of Marietta E. Calisterio
to act as administrator of Teodorico's estate, and if so found competent and willing,

22

that she be appointed as such; otherwise, to determine who among the deceased's
next of kin is competent and willing to become the administrator of the estate. 3

partakes of the nature of fraud, a breach of a known duty through some motive of
interest or ill will. 7 The Court does not find these circumstances to be here extant.

On 23 November 1998, the Court of Appeals denied petitioner's motion for

reconsideration, prompting her to interpose the present appeal. Petitioner
asseverates:

A judicial declaration of absence of the absentee spouse is not necessary 8 as long as

the prescribed period of absence is met. It is equally noteworthy that the marriage
in these exceptional cases are, by the explicit mandate of Article 83, to be deemed
valid "until declared null and void by a competent court." It follows that the burden
of proof would be, in these cases, on the party assailing the second marriage.

It is respectfully submitted that the decision of the Court of Appeals reversing and
setting aside the decision of the trial court is not in accord with the law or with the
applicable decisions of this Honorable Court. 4
It is evident that the basic issue focuses on the validity of the marriage between the
deceased Teodorico and respondent Marietta, that, in turn, would be determinative
of her right as a surviving spouse.
The marriage between the deceased Teodorico and respondent Marietta was
solemnized on 08 May 1958. The law in force at that time was the Civil Code, not the
Family Code which took effect only on 03 August 1988. Article 256 of the Family
Code 5 itself limited its retroactive governance only to cases where it thereby would
not prejudice or impair vested or acquired rights in accordance with the Civil Code or
other laws.
Verily, the applicable specific provision in the instant controversy is Article 83 of the
New Civil Code which provides:
Art. 83. Any marriage subsequently contracted by any person during the lifetime of
the first spouse of such person with any person other than such first spouse shall be
illegal and void from its performance, unless:
(1) The first marriage was annulled or dissolved; or
(2) The first spouse had been absent for seven consecutive years at the time of the
second marriage without the spouse present having news of the absentee being
alive, or if the absentee, though he has been absent for less than seven years, is
generally considered as dead and believed to be so by the spouse present at the
time of contracting such subsequent marriage, or if the absentee is presumed dead
according to articles 390 and 391. The marriage so contracted shall be valid in any
of the three cases until declared null and void by a competent court.
Under the foregoing provisions, a subsequent marriage contracted during the
lifetime of the first spouse is illegal and void ab initio unless the prior marriage is
first annulled or dissolved. Paragraph (2) of the law gives exceptions from the above
rule. For the subsequent marriage referred to in the three exceptional cases therein
provided, to be held valid, the spouse present (not the absentee spouse) so
contracting the later marriage must have done so in good faith. 6 Bad faith imports a
dishonest purpose or some moral obliquity and conscious doing of wrong it

In contrast, under the 1988 Family Code, in order that a subsequent bigamous
marriage may exceptionally be considered valid, the following conditions must
concur; viz.: (a) The prior spouse of the contracting party must have been absent for
four consecutive years, or two years where there is danger of death under the
circumstances stated in Article 391 of the Civil Code at the time of disappearance;
(b) the spouse present has a well-founded belief that the absent spouse is already
dead; and (c) there is, unlike the old rule, a judicial declaration of presumptive death
of the absentee for which purpose the spouse present can institute a summary
proceeding in court to ask for that declaration. The last condition is consistent and in
consonance with the requirement of judicial intervention in subsequent marriages as
so provided in Article 41 9 , in relation to Article 40, 10 of the Family Code.
In the case at bar, it remained undisputed that respondent Marietta's first husband,
James William Bounds, had been absent or had disappeared for more than eleven
years before she entered into a second marriage in 1958 with the deceased
Teodorico Calisterio. This second marriage, having been contracted during the
regime of the Civil Code, should thus be deemed valid notwithstanding the absence
of a judicial declaration of presumptive death of James Bounds.
The conjugal property of Teodorico and Marietta, no evidence having been adduced
to indicate another property regime between the spouses, pertains to them in
common. Upon its dissolution with the death of Teodorico, the property should
rightly be divided in two equal portions one portion going to the surviving spouse
and the other portion to the estate of the deceased spouse. The successional right in
intestacy of a surviving spouse over the net estate 11 of the deceased, concurring
with legitimate brothers and sisters or nephews and nieces (the latter by right of
representation), is one-half of the inheritance, the brothers and sisters or nephews
and nieces, being entitled to the other half. Nephews and nieces, however, can only
succeed by right of representation in the presence of uncles and aunts; alone, upon
the other hand, nephews and nieces can succeed in their own right which is to say
that brothers or sisters exclude nephews and nieces except only in representation by
the latter of their parents who predecease or are incapacitated to succeed. The
appellate court has thus erred in granting, in paragraph (c) of the dispositive portion
of its judgment, successional rights, to petitioner's children, along with their own
mother Antonia who herself is invoking successional rights over the estate of her
deceased brother.1wphi1

23

WHEREFORE, the assailed judgment of the Court of Appeals in CA G.R. CV No. 51574
is AFFIRMED except insofar only as it decreed in paragraph (c) of the dispositive
portion thereof that the children of petitioner are likewise entitled, along with her, to
the other half of the inheritance, in lieu of which, it is hereby DECLARED that said
one-half share of the decedent's estate pertains solely to petitioner to the exclusion
of her own children. No costs.
SO ORDERED.

24

REPUBLIC
PHILIPPINES,
Petitioner,

OF

THE

G. R. No. 187512

Petition for Declaration of Presumptive Death, based on Article 41 of the Family

Code,
was
a
summary
judicial
proceeding,
in which the judgment is immediately final and executory and, thus, not appealable.

Present:
CARPIO, J., Chairperson,
BRION,
PEREZ,
SERENO, and
REYES, JJ.

- versus -

YOLANDA CADACIO GRANADA,

Respondent.

Promulgated:
June 13, 2012

x--------------------------------------------------x
DECISION
SERENO, J.:
This is a Rule 45 Petition seeking the reversal of the Resolutions dated 23 January
2009[1] and 3 April 2009[2] issued by the Court of Appeals (CA), which affirmed the
grant by the Regional Trial Court (RTC) of the Petition for Declaration of Presumptive
Death of the absent spouse of respondent.
In May 1991, respondent Yolanda Cadacio Granada (Yolanda) met Cyrus
Granada
(Cyrus)
at
Sumida
Electric
Philippines,
an
electronics
company in Paranaque where both were then working. The two eventually got
married at the Manila City Hall on 3 March 1993. Their marriage resulted in the birth
of their son, Cyborg Dean Cadacio Granada.
Sometime in May 1994, when Sumida Electric Philippines closed down,
Cyrus went to Taiwan to seek employment. Yolanda claimed that from that time, she
had not received any communication from her husband, notwithstanding efforts to
locate him. Her brother testified that he had asked the relatives of Cyrus regarding
the latters whereabouts, to no avail.
After nine (9) years of waiting, Yolanda filed a Petition to have Cyrus
declared presumptively dead. The Petition was raffled to Presiding Judge Avelino
Demetria of RTC Branch 85, Lipa City, and was docketed as Sp. Proc. No. 2002-0530.
On 7 February 2005, the RTC rendered a Decision declaring Cyrus as
presumptively dead.
On 10 March 2005, petitioner Republic of the Philippines, represented by
the Office of the Solicitor General (OSG), filed a Motion for Reconsideration of this
Decision. Petitioner argued that Yolanda had failed to exert earnest efforts to locate
Cyrus and thus failed to prove her well-founded belief that he was already dead.
However, in an Order dated 29 June 2007, the RTC denied the motion.
Petitioner filed a Notice of Appeal to elevate the case to the CA, presumably
under Rule 41, Section 2(a) of the Rules of Court. Yolanda filed a Motion to Dismiss
on the ground that the CA had no jurisdiction over the appeal. She argued that her

In its 23 January 2009 Resolution, the appellate court granted Yolandas

Motion to Dismiss on the ground of lack of jurisdiction. CitingRepublic v. BermudezLorino,[3] the CA ruled that a petition for declaration of presumptive death under Rule
41 of the Family Code is a summary proceeding. Thus, judgment thereon is
immediately final and executory upon notice to the parties.
Petitioner moved for reconsideration, but its motion was likewise denied by
the CA in a Resolution dated 3 April 2009.[4]
Hence, the present Rule 45 Petition.
Issues
1.
Whether the CA seriously erred in dismissing the Petition on
the ground that the Decision of the RTC in a summary proceeding for the
declaration of presumptive death is immediately final and executory upon
notice to the parties and, hence, is not subject to ordinary appeal
2.
Whether the CA seriously erred in affirming the RTCs grant of
the Petition for Declaration of Presumptive Death under Article 41 of the
Family Code based on the evidence that respondent presented

Our Ruling
1.
On whether the CA seriously erred in dismissing the Petition on
the ground that the Decision of the RTC in a summary proceeding for the
declaration of presumptive death is immediately final and executory upon
notice to the parties and, hence, is not subject to ordinary appeal
In the assailed Resolution dated 23 January 2009, the CA dismissed the
Petition assailing the RTCs grant of the Petition for Declaration of Presumptive Death
of the absent spouse under Article 41 of the Family Code. Citing Republic v.
Bermudez-Lorino,[5] the appellate court noted that a petition for declaration of
presumptive death for the purpose of remarriage is a summary judicial proceeding
under the Family Code. Hence, the RTC Decision therein is immediately final and
executory upon notice to the parties, by express provision of Article 247 of the same
Code. The decision is therefore not subject to ordinary appeal, and the attempt to
question it through a Notice of Appeal is unavailing.
We affirm the CA ruling.
Article 41 of the Family Code provides:
Art. 41. A marriage contracted by any person during the subsistence of a previous
marriage shall be null and void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four consecutive years and the
spouse present has a well-founded belief that the absent spouse was already dead .
In case of disappearance where there is danger of death under the circumstances
set forth in the provisions of Article 391 of the Civil Code, an absence of only two
years shall be sufficient.

25

For the purpose of contracting the subsequent marriage under the preceding
paragraph the spouse present must institute a summary proceeding as provided in
this Code for the declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse. (Underscoring
supplied.)
Clearly, a petition for declaration of presumptive death of an absent spouse
for the purpose of contracting a subsequent marriage under Article 41 of the Family
Code is a summary proceeding as provided for under the Family Code.
Further, Title XI of the Family Code is entitled Summary Judicial Proceedings
in the Family Law. Subsumed thereunder are Articles 238 and 247, which provide:
Art. 238. Until modified by the Supreme Court, the procedural rules in this Title shall
apply in all cases provided for in this Code requiring summary court proceedings.
Such cases shall be decided in an expeditious manner without regard to technical
rules.
xxx xxx xxx
Art. 247. The judgment of the court shall be immediately final and
executory.
Further, Article 253 of the Family Code reads:
ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern
summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as
they are applicable.
Taken together, Articles 41, 238, 247 and 253 of the Family Code provide that since
a petition for declaration of presumptive death is a summary proceeding, the
judgment of the court therein shall be immediately final and executory.
In Republic v. Bermudez-Lorino,[6] the Republic likewise appealed the CAs
affirmation of the RTCs grant of respondents Petition for Declaration of Presumptive
Death of her absent spouse. The Court therein held that it was an error for the
Republic to file a Notice of Appeal when the latter elevated the matter to the CA, to
wit:
In Summary Judicial Proceedings under the Family Code, there is no reglementary
period within which to perfect an appeal, precisely because judgments rendered
thereunder, by express provision of Section 247, Family Code, supra, are
immediately final and executory.
xxx xxx xxx
But, if only to set the records straight and for the future guidance of the bench and
the bar, let it be stated that the RTCs decision dated November 7, 2001, was
immediately final and executory upon notice to the parties. It was erroneous for the
OSG to file a notice of appeal, and for the RTC to give due course thereto. The Court
of Appeals acquired no jurisdiction over the case, and should have dismissed the
appeal outright on that ground.
Justice (later Chief Justice) Artemio Panganiban, who concurred in the result
reached by the Court in Republic v. Bermudez-Lorino, additionally opined that what
the OSG should have filed was a petition for certiorari under Rule 65, not a petition
for review under Rule 45.
In the present case, the Republic argues that Bermudez-Lorino has been
superseded by the subsequent Decision of the Court inRepublic v. Jomoc,[7] issued a
few months later.

In Jomoc, the RTC granted respondents Petition for Declaration of

Presumptive Death of her absent husband for the purpose of remarriage. Petitioner
Republic appealed the RTC Decision by filing a Notice of Appeal. The trial court
disapproved
the
Notice
of
Appeal
on
the
ground
that,
under
the Rules of Court,[8] a record on appeal is required to be filed when appealing
special proceedings cases. The CA affirmed the RTC ruling. In reversing the CA, this
Court clarified that while an action for declaration of death or absence under Rule
72, Section 1(m), expressly falls under the category of special proceedings, a
petition for declaration of presumptive death under Article 41 of the Family Code is a
summary proceeding, as provided for by Article 238 of the same Code. Since its
purpose was to enable her to contract a subsequent valid marriage, petitioners
action was a summary proceeding based on Article 41 of the Family Code, rather
than a special proceeding under Rule 72 of the Rules of Court. Considering that this
action was not a special proceeding, petitioner was not required to file a record on
appeal when it appealed the RTC Decision to the CA.
We do not agree with the Republics argument that Republic v.
Jomoc superseded our ruling in Republic v. Bermudez-Lorino. As observed by the CA,
the Supreme Court in Jomoc did not expound on the characteristics of a summary
proceeding under the Family Code. In contrast, the Court in BermudezLorino expressly stated that its ruling on the impropriety of an ordinary appeal as a
vehicle for questioning the trial courts Decision in a summary proceeding for
declaration of presumptive death under Article 41 of the Family Code was intended
to set the records straight and for the future guidance of the bench and the bar.
At any rate, four years after Jomoc, this Court settled the rule regarding
appeal of judgments rendered in summary proceedings under the Family Code when
it ruled in Republic v. Tango:[9]
This case presents an opportunity for us to settle the rule on appeal of
judgments rendered in summary proceedings under the Family Code and
accordingly, refine our previous decisions thereon.
Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN
THE FAMILY LAW, establishes the rules that govern summary court proceedings in
the Family Code:
ART. 238. Until modified by the Supreme Court, the procedural rules in this Title shall
apply in all cases provided for in this Code requiring summary court proceedings.
Such cases shall be decided in an expeditious manner without regard to technical
rules.
In turn, Article 253 of the Family Code specifies the cases covered by the rules in
chapters two and three of the same title. It states:
ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern
summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as
they are applicable. (Emphasis supplied.)
In plain text, Article 247 in Chapter 2 of the same title reads:
ART 247. The judgment of the court shall be immediately final and
executory.

26

By express provision of law, the judgment of the court in a summary proceeding

shall be immediately final and executory. As a matter of course, it follows that no
appeal can be had of the trial court's judgment in a summary proceeding for the
declaration of presumptive death of an absent spouse under Article 41 of the Family
Code. It goes without saying, however, that an aggrieved party may file a petition
for certiorari to question abuse of discretion amounting to lack of jurisdiction. Such
petition should be filed in the Court of Appeals in accordance with the Doctrine of
Hierarchy of Courts. To be sure, even if the Court's original jurisdiction to issue a writ
of certiorari is concurrent with the RTCs and the Court of Appeals in certain cases,
such concurrence does not sanction an unrestricted freedom of choice of court
forum. From the decision of the Court of Appeals, the losing party may then file a
petition for review on certiorari under Rule 45 of the Rules of Court with the Supreme
Court. This is because the errors which the court may commit in the exercise of
jurisdiction are merely errors of judgment which are the proper subject of an appeal.
In sum, under Article 41 of the Family Code, the losing party in a summary
proceeding for the declaration of presumptive death may file a petition for certiorari
with the CA on the ground that, in rendering judgment thereon, the trial court
committed grave abuse of discretion amounting to lack of jurisdiction. From the
decision of the CA, the aggrieved party may elevate the matter to this Court via a
petition for review on certiorari under Rule 45 of the Rules of Court.
Evidently then, the CA did not commit any error in dismissing the Republics
Notice of Appeal on the ground that the RTC judgment on the Petition for Declaration
of Presumptive Death of respondents spouse was immediately final and executory
and, hence, not subject to ordinary appeal.
2.
On whether the CA seriously erred in affirming the RTCs grant
of the Petition for Declaration of Presumptive Death under Article 41 of the
Family Code based on the evidence that respondent had presented
Petitioner also assails the RTCs grant of the Petition for Declaration of
Presumptive Death of the absent spouse of respondent on the ground that she had
not adduced the evidence required to establish a well-founded belief that her absent
spouse was already dead, as expressly required by Article 41 of the Family Code.
Petitioner cites Republic v. Nolasco,[10] United States v. Biasbas[11] and Republic v.
Court of Appeals and Alegro[12] as authorities on the subject.
In Nolasco, petitioner Republic sought the reversal of the CAs affirmation of
the RTCs grant of respondents Petition for Declaration of Presumptive Death of his
absent spouse, a British subject who left their home in the Philippines soon after
giving birth to their son while respondent was on board a vessel working as a
seafarer. Petitioner Republic sought the reversal of the ruling on the ground that
respondent
was
not
able
to
establish
his well-founded belief that the absentee is already dead, as required by Article 41
of the Family Code. In ruling thereon, this Court recognized that this provision
imposes more stringent requirements than does Article 83 of the Civil Code. [13] The
Civil Code provision merely requires either that there be no news that the absentee
is still alive; or that the absentee is generally considered to be dead and is believed
to be so by the spouse present, or is presumed dead under Articles 390 and 391 of
the Civil Code. In comparison, the Family Code provision prescribes a well-founded
belief that the absentee is already dead before a petition for declaration of
presumptive death can be granted. As noted by the Court in that case, the four

requisites for the declaration of presumptive death under the Family Code are as
follows:
1. That the absent spouse has been missing for four consecutive
years, or two consecutive years if the disappearance occurred
where there is danger of death under the circumstances laid
down in Article 391, Civil Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief that the
absentee is dead; and
4. That the present spouse files a summary proceeding for the
declaration of presumptive death of the absentee.
In evaluating whether the present spouse has been able to prove the
existence of a well-founded belief that the absent spouse is already dead, the Court
in Nolasco cited United States v. Biasbas,[14] which it found to be instructive as to the
diligence required in searching for a missing spouse.
In Biasbas, the Court held that defendant Biasbas failed to exercise due
diligence in ascertaining the whereabouts of his first wife, considering his admission
that that he only had a suspicion that she was dead, and that the only basis of that
suspicion was the fact of her absence.
Similarly, in Republic v. Court of Appeals and Alegro, petitioner Republic
sought the reversal of the CA ruling affirming the RTCs grant of the Petition for
Declaration of Presumptive Death of the absent spouse on the ground that the
respondent therein had not been able to prove a well-founded belief that his spouse
was already dead. The Court reversed the CA, granted the Petition, and provided the
following criteria for determining the existence of a well-founded belief under Article
41 of the Family Code:
For the purpose of contracting the subsequent marriage under the preceding
paragraph, the spouse present must institute a summary proceeding as provided in
this Code for the declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse.
The spouse present is, thus, burdened to prove that his spouse has been absent and
that he has a well-founded belief that the absent spouse is already dead before the
present spouse may contract a subsequent marriage. The law does not define what
is meant by a well-grounded belief. Cuello Callon writes that es menester que su
creencia sea firme se funde en motivos racionales.
Belief is a state of the mind or condition prompting the doing of an overt act. It may
be proved by direct evidence or circumstantial evidence which may tend, even in a
slight degree, to elucidate the inquiry or assist to a determination probably founded
in truth. Any fact or circumstance relating to the character, habits, conditions,
attachments, prosperity and objects of life which usually control the conduct of men,
and are the motives of their actions, was, so far as it tends to explain or characterize
their disappearance or throw light on their intentions, competence [sic] evidence on
the ultimate question of his death.
The belief of the present spouse must be the result of proper and honest to
goodness inquiries and efforts to ascertain the whereabouts of the absent spouse

27

and whether the absent spouse is still alive or is already dead. Whether or not the
spouse
present
acted
on
a
well-founded
belief
of
death of the absent spouse depends upon the inquiries to be drawn from a great
many circumstances occurring before and after the disappearance of the absent
spouse and the nature and extent of the inquiries made by present spouse.
(Footnotes omitted, underscoring supplied.)
Applying the foregoing standards to the present case, petitioner points out
that respondent Yolanda did not initiate a diligent search to locate her absent
husband. While her brother Diosdado Cadacio testified to having inquired about the
whereabouts of Cyrus from the latters relatives, these relatives were not presented
to corroborate Diosdados testimony. In short, respondent was allegedly not diligent
in her search for her husband. Petitioner argues that if she were, she would have
sought information from the Taiwanese Consular Office or assistance from other
government agencies in Taiwan or the Philippines. She could have also utilized mass
media for this end, but she did not. Worse, she failed to explain these omissions.
The Republics arguments are well-taken. Nevertheless, we are constrained
to deny the Petition.
The RTC ruling on the issue of whether respondent was able to prove her
well-founded belief that her absent spouse was already dead prior to her filing of the
Petition to declare him presumptively dead is already final and can no longer be
modified or reversed. Indeed, [n]othing is more settled in law than that when a
judgment becomes final and executory, it becomes immutable and unalterable. The
same may no longer be modified in any respect, even if the modification is meant to
correct what is perceived to be an erroneous conclusion of fact or law. [15]
WHEREFORE, premises considered, the assailed Resolutions of the Court
of Appeals dated 23 January 2009 and 3 April 2009 in CA-G.R. CV No. 90165
are AFFIRMED.
SO ORDERED.

28

G.R. No. 165545

March 24, 2006

SOCIAL SECURITY SYSTEM, Petitioner,

vs.
TERESITA JARQUE VDA. DE BAILON, Respondent.
DECISION
CARPIO MORALES,J.:
The Court of Appeals Decision1 dated June 23, 20042 and Resolution dated
September 28, 20043 reversing the Resolution dated April 2, 20034 and Order dated
June 4, 20035 of the Social Security Commission (SSC) in SSC Case No. 4-15149-01
are challenged in the present petition for review on certiorari.
On April 25, 1955, Clemente G. Bailon (Bailon) and Alice P. Diaz (Alice) contracted
marriage in Barcelona, Sorsogon.6
More than 15 years later or on October 9, 1970, Bailon filed before the then Court of
First Instance (CFI) of Sorsogon a petition 7 to declare Alice presumptively dead.

Cecilia Bailon-Yap (Cecilia), who claimed to be a daughter of Bailon and one Elisa
Jayona (Elisa) contested before the SSS the release to respondent of the death and
funeral benefits. She claimed that Bailon contracted three marriages in his lifetime,
the first with Alice, the second with her mother Elisa, and the third with respondent,
all of whom are still alive; she, together with her siblings, paid for Bailons medical
and funeral expenses; and all the documents submitted by respondent to the SSS in
support of her claims are spurious.
In support of her claim, Cecilia and her sister Norma Bailon Chavez (Norma)
submitted an Affidavit dated February 13, 199915 averring that they are two of nine
children of Bailon and Elisa who cohabited as husband and wife as early as 1958;
and they were reserving their right to file the necessary court action to contest the
marriage between Bailon and respondent as they personally know that Alice is "still
very much alive."16
In the meantime, on April 5, 1999, a certain Hermes P. Diaz, claiming to be the
brother and guardian of "Aliz P. Diaz," filed before the SSS a claim for death benefits
accruing from Bailons death,17 he further attesting in a sworn statement18 that it
was Norma who defrayed Bailons funeral expenses.
Elisa and seven of her children 19 subsequently filed claims for death benefits as
Bailons beneficiaries before the SSS.20

By Order of December 10, 1970,8 the CFI granted the petition, disposing as follows:
WHEREFORE, there being no opposition filed against the petition notwithstanding
the publication of the Notice of Hearing in a newspaper of general circulation in the
country, Alice Diaz is hereby declared to [sic] all legal intents and purposes, except
for those of succession, presumptively dead.
SO ORDERED.9 (Underscoring supplied)
Close to 13 years after his wife Alice was declared presumptively dead or on August
8, 1983, Bailon contracted marriage with Teresita Jarque (respondent) in Casiguran,
Sorsogon.10

Atty. Marites C. de la Torre of the Legal Unit of the SSS Bicol Cluster, Naga City
recommended the cancellation of payment of death pension benefits to respondent
and the issuance of an order for the refund of the amount paid to her from February
1998 to May 1999 representing such benefits; the denial of the claim of Alice on the
ground that she was not dependent upon Bailon for support during his lifetime; and
the payment of the balance of the five-year guaranteed pension to Bailons
beneficiaries according to the order of preference provided under the law, after the
amount erroneously paid to respondent has been collected. The pertinent portions of
the Memorandum read:
1. Aliz [sic] Diaz never disappeared. The court must have been misled by
misrepresentation in declaring the first wife, Aliz [sic] Diaz, as presumptively dead.

On January 30, 1998, Bailon, who was a member of the Social Security System (SSS)
since 1960 and a retiree pensioner thereof effective July 1994, died. 11

xxxx

Respondent thereupon filed a claim for funeral benefits, and was

granted P12,00012 by the SSS.

x x x the Order of the court in the "Petition to Declare Alice Diaz

Presumptively Dead," did not become final. The presence of Aliz [sic] Diaz,
is contrary proof that rendered it invalid.

Respondent filed on March 11, 1998 an additional claim for death benefits 13 which
was also granted by the SSS on April 6, 1998.14

xxxx

29

3. It was the deceased member who abandoned his wife, Aliz [sic] Diaz. He,
being in bad faith, and is the deserting spouse, his remarriage is void, being
bigamous.
xxxx
In this case, it is the deceased member who was the deserting spouse and who
remarried, thus his marriage to Teresita Jarque, for the second time was void as it
was bigamous. To require affidavit of reappearance to terminate the second
marriage is not necessary as there is no disappearance of Aliz [sic] Diaz, the first
wife, and a voidable marriage [sic], to speak of.21 (Underscoring supplied)
In the meantime, the SSS Sorsogon Branch, by letter of August 16, 2000, 22 advised
respondent that as Cecilia and Norma were the ones who defrayed Bailons funeral
expenses, she should return the P12,000 paid to her.
In a separate letter dated September 7, 1999, 23 the SSS advised respondent of the
cancellation of her monthly pension for death benefits in view of the opinion
rendered by its legal department that her marriage with Bailon was void as it was
contracted while the latters marriage with Alice was still subsisting; and the
December 10, 1970 CFI Order declaring Alice presumptively dead did not become
final, her "presence" being "contrary proof" against the validity of the order. It thus
requested respondent to return the amount of P24,000 representing the total
amount of monthly pension she had received from the SSS from February 1998 to
May 1999.
Respondent protested the cancellation of her monthly pension for death benefits by
letter to the SSS dated October 12, 1999.24 In a subsequent letter dated November
27, 199925 to the SSC, she reiterated her request for the release of her monthly
pension, asserting that her marriage with Bailon was not declared before any court
of justice as bigamous or unlawful, hence, it remained valid and subsisting for all
legal intents and purposes as in fact Bailon designated her as his beneficiary.
The SSS, however, by letter to respondent dated January 21, 2000, 26 maintained the
denial of her claim for and the discontinuance of payment of monthly pension. It
advised her, however, that she was not deprived of her right to file a petition with
the SSC.

After the SSS filed its Answer29 to respondents petition, and the parties filed their
respective Position Papers, one Alicia P. Diaz filed an Affidavit 30 dated August 14,
2002 with the SSS Naga Branch attesting that she is the widow of Bailon; she had
only recently come to know of the petition filed by Bailon to declare her
presumptively dead; it is not true that she disappeared as Bailon could have easily
located her, she having stayed at her parents residence in Barcelona, Sorsogon
after she found out that Bailon was having an extramarital affair; and Bailon used to
visit her even after their separation.
By Resolution of April 2, 2003, the SSC found that the marriage of respondent to
Bailon was void and, therefore, she was "just a common-law-wife." Accordingly it
disposed as follows, quoted verbatim:
WHEREFORE, this Commission finds, and so holds, that petitioner Teresita JarqueBailon is not the legitimate spouse and primary beneficiary of SSS member
Clemente Bailon.
Accordingly, the petitioner is hereby ordered to refund to the SSS the amount
of P24,000.00 representing the death benefit she received therefrom for the period
February 1998 until May 1999 as well as P12,000.00 representing the funeral
benefit.
The SSS is hereby ordered to pay Alice (a.k.a. Aliz) Diaz-Bailon the appropriate death
benefit arising from the demise of SSS member Clemente Bailon in accordance with
Section 8(e) and (k) as well as Section 13 of the SS Law, as amended, and its
prevailing rules and regulations and to inform this Commission of its compliance
herewith.
SO ORDERED.31 (Underscoring supplied)
In so ruling against respondent, the SSC ratiocinated.
After a thorough examination of the evidence at hand, this Commission comes to the
inevitable conclusion that the petitioner is not the legitimate wife of the deceased
member.
xxxx

27

Respondent thus filed a petition against the SSS before the SSC for the restoration
to her of her entitlement to monthly pension.
In the meantime, respondent informed the SSS that she was returning, under
protest, the amount of P12,000 representing the funeral benefits she received, she
alleging that Norma and her siblings "forcibly and coercively prevented her from
spending any amount during Bailons wake."28

There is x x x ample evidence pointing to the fact that, contrary to the declaration of
the then CFI of Sorsogon (10th Judicial District), the first wife never disappeared as
the deceased member represented in bad faith. This Commission accords credence
to the findings of the SSS contained in its Memorandum dated August 9,
1999,32revealing that Alice (a.k.a. Aliz) Diaz never left Barcelona, Sorsogon, after her
separation from Clemente Bailon x x x.

30

As the declaration of presumptive death was extracted by the deceased member

using artifice and by exerting fraud upon the unsuspecting court of law, x x x it
never had the effect of giving the deceased member the right to marry anew. x x x
[I]t is clear that the marriage to the petitioner is void, considering that the first
marriage on April 25, 1955 to Alice Diaz was not previously annulled, invalidated or
otherwise dissolved during the lifetime of the parties thereto. x x x as determined
through the investigation conducted by the SSS, Clemente Bailon was the
abandoning spouse, not Alice Diaz Bailon.

a presumption juris tantum," the second marriage contracted by a person with an

absent spouse endures until annulled. It is only the competent court that can nullify
the second marriage pursuant to Article 87 of the Civil Code and upon the
reappearance of the missing spouse, which action for annulment may be
filed. Nowhere does the law contemplates [sic] the possibility that respondent SSS
may validly declare the second marriage null and void on the basis alone of its own
investigation and declare that the decision of the RTC declaring one to be
presumptively dead is without basis.

xxxx

Respondent SSS cannot arrogate upon itself the authority to review the decision of
the regular courts under the pretext of determining the actual and lawful
beneficiaries of its members. Notwithstanding its opinion as to the soundness of the
findings of the RTC, it should extend due credence to the decision of the RTC absent
of [sic] any judicial pronouncement to the contrary. x x x

It having been established, by substantial evidence, that the petitioner was just a
common-law wife of the deceased member, it necessarily follows that she is not
entitled as a primary beneficiary, to the latters death benefit. x x x
xxxx
It having been determined that Teresita Jarque was not the legitimate surviving
spouse and primary beneficiary of Clemente Bailon, it behooves her to refund the
total amount of death benefit she received from the SSS for the period from
February 1998 until May 1999 pursuant to the principle of solutio indebiti x x x
Likewise, it appearing that she was not the one who actually defrayed the cost of the
wake and burial of Clemente Bailon, she must return the amount
of P12,000.00 which was earlier given to her by the SSS as funeral
benefit.33(Underscoring supplied)
Respondents Motion for Reconsideration34 having been denied by Order of June 4,
2003, she filed a petition for review35 before the Court of Appeals (CA).
By Decision of June 23, 2004, the CA reversed and set aside the April 2, 2003
Resolution and June 4, 2003 Order of the SSC and thus ordered the SSS to pay
respondent all the pension benefits due her. Held the CA:
x x x [T]he paramount concern in this case transcends the issue of whether or not
the decision of the then CFI, now RTC, declaring Alice Diaz presumptively dead has
attained finality but, more importantly, whether or not the respondents SSS and
Commission can validly re-evaluate the findings of the RTC, and on its own, declare
the latters decision to be bereft of any basis. On similar import, can respondents
SSS and Commission validly declare the first marriage subsisting and the second
marriage null and void?
xxxx
x x x while it is true that a judgment declaring a person presumptively dead never
attains finality as the finding that "the person is unheard of in seven years is merely

x x x [A]ssuming arguendo that respondent SSS actually possesses the authority to

declare the decision of the RTC to be without basis, the procedure it followed was
offensive to the principle of fair play and thus its findings are of doubtful quality
considering that petitioner Teresita was not given ample opportunity to present
evidence for and her behalf.
xxxx
Respondent SSS is correct in stating that the filing of an Affidavit of Reappearance
with the Civil Registry is no longer practical under the premises. Indeed, there is no
more first marriage to restore as the marital bond between Alice Diaz and Clemente
Bailon was already terminated upon the latters death. Neither is there a second
marriage to terminate because the second marriage was likewise dissolved by the
death of Clemente Bailon.
However, it is not correct to conclude that simply because the filing of the Affidavit
of Reappearance with the Civil Registry where parties to the subsequent marriage
reside is already inutile, the respondent SSS has now the authority to review the
decision of the RTC and consequently declare the second marriage null and
void.36(Emphasis and underscoring supplied)
The SSC and the SSS separately filed their Motions for Reconsideration 37 which were
both denied for lack of merit.
Hence, the SSS present petition for review on certiorari 38 anchored on the following
grounds:
I
THE DECISION OF THE HONORABLE COURT OF APPEALS IS CONTRARY TO LAW.

31

II
THE HONORABLE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION
AMOUNTING TO LACK OF JURISDICTION.39
The SSS faults the CA for failing to give due consideration to the findings of facts of
the SSC on the prior and subsisting marriage between Bailon and Alice; in
disregarding the authority of the SSC to determine to whom, between Alice and
respondent, the death benefits should be awarded pursuant to Section 5 40 of the
Social Security Law; and in declaring that the SSS did not give respondent due
process or ample opportunity to present evidence in her behalf.
The SSS submits that "the observations and findings relative to the CFI proceedings
are of no moment to the present controversy, as the same may be considered only
as obiter dicta in view of the SSCs finding of the existence of a prior and subsisting
marriage between Bailon and Alice by virtue of which Alice has a better right to the
death benefits."41
The petition fails.
That the SSC is empowered to settle any dispute with respect to SSS coverage,
benefits and contributions, there is no doubt. In so exercising such power, however,
it cannot review, much less reverse, decisions rendered by courts of law as it did in
the case at bar when it declared that the December 10, 1970 CFI Order was
obtained through fraud and subsequently disregarded the same, making its own
findings with respect to the validity of Bailon and Alices marriage on the one hand
and the invalidity of Bailon and respondents marriage on the other.
In interfering with and passing upon the CFI Order, the SSC virtually acted as an
appellate court. The law does not give the SSC unfettered discretion to trifle with
orders of regular courts in the exercise of its authority to determine the beneficiaries
of the SSS.
The two marriages involved herein having been solemnized prior to the effectivity on
August 3, 1988 of the Family Code, the applicable law to determine their validity is
the Civil Code which was the law in effect at the time of their celebration. 42
Article 83 of the Civil Code43 provides:
Art. 83. Any marriage subsequently contracted by any person during the lifetime of
the first spouse of such person with any person other than such first spouse shall be
illegal and void from its performance, unless:
(1) The first marriage was annulled or dissolved; or

(2) The first spouse had been absent for seven consecutive years at the
time of the second marriage without the spouse present having news of the
absentee being alive, or if the absentee, though he has been absent for
less than seven years, is generally considered as dead and believed to be
so by the spouse present at the time of contracting such subsequent
marriage, or if the absentee is presumed dead according to Articles
390 and 391. The marriage so contracted shall be valid in any of the
three cases until declared null and void by a competent court. (Emphasis
and underscoring supplied)
Under the foregoing provision of the Civil Code, a subsequent marriage contracted
during the lifetime of the first spouse is illegal and void ab initio unless the prior
marriage is first annulled or dissolved or contracted under any of the three
exceptional circumstances. It bears noting that the marriage under any of these
exceptional cases is deemed valid "until declared null and void by a competent
court." It follows that the onus probandi in these cases rests on the party assailing
the second marriage.44
In the case at bar, as found by the CFI, Alice had been absent for 15 consecutive
years45 when Bailon sought the declaration of her presumptive death, which judicial
declaration was not even a requirement then for purposes of remarriage. 46
Eminent jurist Arturo M. Tolentino (now deceased) commented:
Where a person has entered into two successive marriages, a presumption arises in
favor of the validity of the second marriage, and the burden is on the party attacking
the validity of the second marriage to prove that the first marriage had not been
dissolved; it is not enough to prove the first marriage, for it must also be shown that
it had not ended when the second marriage was contracted. The presumption in
favor of the innocence of the defendant from crime or wrong and of the legality of
his second marriage, will prevail over the presumption of the continuance of life of
the first spouse or of the continuance of the marital relation with such first
spouse.47(Underscoring supplied)
Under the Civil Code, a subsequent marriage being voidable,48 it is terminated by
final judgment of annulment in a case instituted by the absent spouse who
reappears or by either of the spouses in the subsequent marriage.
Under the Family Code, no judicial proceeding to annul a subsequent marriage is
necessary. Thus Article 42 thereof provides:
Art. 42. The subsequent marriage referred to in the preceding Article shall
be automatically terminated by therecording of the affidavit of reappearance of
the absent spouse, unless there is a judgment annulling the previous marriage or
declaring it void ab initio.

32

A sworn statement of the fact and circumstances of reappearance shall be recorded

in the civil registry of the residence of the parties to the subsequent marriage at the
instance of any interested person, with due notice to the spouses of the
subsequent marriage and without prejudice to the fact of reappearance being
judicially determined in case such fact is disputed. (Emphasis and underscoring
supplied)
The termination of the subsequent marriage by affidavit provided by the abovequoted provision of the Family Code does not preclude the filing of an action in court
to prove the reappearance of the absentee and obtain a declaration of dissolution or
termination of the subsequent marriage.49
If the absentee reappears, but no step is taken to terminate the subsequent
marriage, either by affidavit or by court action, such absentees mere reappearance,
even if made known to the spouses in the subsequent marriage, will not terminate
such marriage.50 Since the second marriage has been contracted because of a
presumption that the former spouse is dead, such presumption continues inspite of
the spouses physical reappearance, and by fiction of law, he or she must still be
regarded as legally an absentee until the subsequent marriage is terminated as
provided by law.51

It bears reiterating that a voidable marriage cannot be assailed collaterally except in

a direct proceeding. Consequently, such marriages can be assailed only during the
lifetime of the parties and not after the death of either, in which case the parties and
their offspring will be left as if the marriage had been perfectly valid. 55 Upon the
death of either, the marriage cannot be impeached, and is made good ab initio.56
In the case at bar, as no step was taken to nullify, in accordance with law, Bailons
and respondents marriage prior to the formers death in 1998, respondent is
rightfully the dependent spouse-beneficiary of Bailon.
In light of the foregoing discussions, consideration of the other issues raised has
been rendered unnecessary.
WHEREFORE, the petition is DENIED.
No costs.
SO ORDERED.

If the subsequent marriage is not terminated by registration of an affidavit of

reappearance or by judicial declaration but by death of either spouse as in the
case at bar, Tolentino submits:
x x x [G]enerally if a subsequent marriage is dissolved by the death of either spouse,
the effects of dissolution of valid marriages shall arise. The good or bad faith of
either spouse can no longer be raised, because, as in annullable or voidable
marriages, the marriage cannot be questioned except in a direct action for
annulment.52(Underscoring supplied)
Similarly, Lapuz v. Eufemio53 instructs:
In fact, even if the bigamous marriage had not been void ab initio but only voidable
under Article 83, paragraph 2, of the Civil Code, because the second marriage had
been contracted with the first wife having been an absentee for seven consecutive
years, or when she had been generally believed dead, still the action for annulment
became extinguished as soon as one of the three persons involved had died, as
provided in Article 87, paragraph 2, of the Code, requiring that the action for
annulment should be brought during the lifetime of any one of the parties
involved. And furthermore, the liquidation of any conjugal partnership that might
have resulted from such voidable marriage must be carried out "in the testate or
intestate proceedings of the deceased spouse," as expressly provided in Section 2 of
the Revised Rule 73, and not in the annulment proceeding.54 (Emphasis and
underscoring supplied)

33

ADMINISTRATIVE CIRCULAR NO. 12

designate the deputy sheriff of another branch without first securing the consent of
the Presiding Judge thereof;

SUPREME COURT CIRCULARS AND ORDERS

TO: ALL JUDGES AND CLERKS OF COURT OF THE REGIONAL TRIAL COURTS,
METROPOLITAN TRIAL COURTS, AND MUNICIPAL TRIAL COURTS IN CITIES

SUBJECT: GUIDELINES AND PROCEDURE IN THE SERVICE AND EXECUTION OF

COURT WRITS AND PROCESSES IN THE REORGANIZED COURTS

For the purpose of streamlining the service and execution of court writs and
processes in the reorganized courts under Batas Pambansa Blg. 129, otherwise
known as "The Judiciary Reorganization Act of 1980", and to better serve the public
good and facilitate the administration of justice, the Court set forth hereunder the
following guidelines:

4.All sheriffs and deputy sheriffs shall submit a report to the judge concerned
on the action taken on all writs and processes assigned to them within ten (10) days
from receipt of said process or writ. Said Report shall form part of the records of the
case;

5.No sheriff or deputy sheriff shall execute a court writ outside his territorial
jurisdiction without first notifying in writing, and seeking the assistance of, the
sheriff of the place where the execution shall take place;

6.No sheriff or deputy sheriff shall act as special deputy sheriff of any party
litigant;

7.The judge may be allowed to designate or deputize any person to serve court
processes and writs in remote areas in the absence of the regular sheriff thereat;
1.All Clerks of Court, who are also ex-oficio sheriffs, and/or their deputy sheriffs
shall serve all court processes and execute all writs of their respective courts within
their territorial jurisdiction;

2.All Clerks of Court of the Metropolitan Trial Court and Municipal Trial Courts in
Cities, and/or their deputy sheriffs shall serve all court processes and execute all
writs of their respective courts within their territorial jurisdiction;

3.The judge of the Regional Trial Court, Metropolitan Trial Court, and the
Municipal Trial Court in Cities, in the absence of the deputy sheriff appointed and
assigned in his sala, may at any time designate any of the deputy sheriffs in the
office of the Clerk of Court. However, the said judge shall not be allowed to

8.The sheriff is primarily responsible for the speedy and efficient service of all
court processes and writs originating from his court and the branches thereof, and
those that may be delegated to him from other courts. He shall submit to the Office
of the Court Administrator, Supreme Court, a monthly report which shall indicate
therein the number of writs and processes issued and served, as well as the number
of writs and processes unserved, during the month, and the names of deputy
sheriffs who executed each writ. Unserved writs and processes shall be explained in
the report.

34

These guidelines and procedure shall take effect immediately.

35

[G.R. No. 47101. April 25, 1941.]

GODOFREDO BUCCAT, demandante y apelante, contra LUIDA MANGONON DE
BUCCAT, demandada y apelada.
D. Feliciano Leviste, D. Tomas P. Paganiban y Doa Sotera N. Megia en
representacion del apelante.

El matrimonio es una institucion sacratisima: es el cimiento en que descansa la

sociedad. Para anularlo, son menester pruebas claras y fehacientes. En este asunto
no existen tales pruebas.

Doa Luida Mangonon de Buccat en su propia representacion.

Hallando la sentencia apelada ajustada a derecho, debe ser confirmada, como por la
presente las confirmamos, en todas sus partes, con las costas al apelante. Asi se
ordena.

SYLLABUS
1. MATRIMONIO; VALIDEZ. El matrimonio es una institucion sacratisima: es el
cimiento en que descansa la sociedad. Para anularlo, son menester pruebas claras y
fehacientes. En este asunto no existen tales pruebas.

Avancea, Pres. Imperial, Diaz, y Laurel, MM., estan conformes

DECISION
HORRILLENO, M. p:chanrob1es virtual 1aw library
Este asunto se ha elevado a esta Superioridad por el Juzgado de Primera Instancia
de Baguio, ya que solo suscita una cuestion puramente de derecho.
El 20 de marzo de 1939 el demandante inicio la presente causa, en la que no
comparecio la demandada, no obstante haber sido debidamente emplazada. Por lo
que, permitido el demandante a presentar sus pruebas, el Juzgado inferior fallo el
asunto a favor de la demandada. De ahi esta apelacion.
El demandante pide la anulacion de su matrimonio habido con la demandada Luida
Mangonon de Buccat el 26 de noviembre de 1938, en la Ciudad de Baguio,
fundandose en que, al consentir en dicho matrimonio, lo hizo porque la demandada
le habia asegurado que ella era virgen.
De la decision del Juzgado inferior se desprenden los siguientes hechos:chanrob1es
virtual 1aw library
El demandante conocio a la demandada el mes de marzo de 1938. Despues de
varias entravistas, ambos quedaron comprometidos el 19 de septiembre del mosmo
ao. El 26 de noviembre de igual ao, el demandante contrajo matrimonio con la
demandada en la catedral catolica de la Ciudad de Baguio. Despues de convivir
maritalmente por espacio de ochenta y nueve dias, la demandada dio a luz un nio
de nueve dias, la demandada dio a luz un nio de nueve meses, el 23 de febrero de
1939. De resultas de este acontecimiento, el demandante abandono a la
demandada y no volvio a hacer vida marital con ella.
No vemos razon alguna para revocar la sentencia apelada. En efecto, es inverosimil
la alegacion del demandante y apelante que el ni siquiera habia sospechado el
estado gravido de la demandada, estando esta, como queda probado, en condicion
preada muy avanzada. Por lo que no ha lugar a estimar el fraude de que habla el
apelante. Lo alegado por este en el sentido de que no es raro hallar a personas de
abdomen desarollado, nos parece pueril para merecer nuestra consideracion, tanto
maa cuanto que el demandante era estudiante de primer ao de derecho.

36

G.R. No. L-15853

July 27, 1960
FERNANDO AQUINO, petitioner,
vs.
CONCHITA DELIZO, respondent.
GUTIERREZ DAVID, J.:
This is a petition for certiorari to review a decision of the Court of Appeals affirming
that of the Court of First Instance of Rizal which dismissed petitioner's complaint for
annulment of his marriage with respondent Conchita Delizo.
The dismissed complaint, which was filed on September 6, 1955, was based on the
ground of fraud, it being alleged, among other things, that defendant Conchita
Delizo, herein respondent, at the date of her marriage to plaintiff, herein petitioner
Fernando Aquino, on December 27, 1954, concealed from the latter that fact that
she was pregnant by another man, and sometime in April, 1955, or about four
months after their marriage, gave birth to a child. In her answer, defendant claimed
that the child was conceived out of lawful wedlock between her and the plaintiff.
At the trial, the attorney's for both parties appeared and the court a quo ordered
Assistant Provincial Fiscal Jose Goco to represent the State in the proceedings to
prevent collusion. Only the plaintiff however, testified and the only documentary
evidence presented was the marriage contract between the parties. Defendant
neither appeared nor presented any evidence despite the reservation made by her
counsel that he would present evidence on a later date.
On June 16, 1956, the trial court noting that no birth certificate was presented to
show that the child was born within 180 days after the marriage between the
parties, and holding that concealment of pregnancy as alleged by the plaintiff does
not constitute such fraud sa would annul a marriage dismissed the complaint.
Through a verified "petition to reopen for reception of additional evidence", plaintiff
tried to present the certificates of birth and delivery of the child born of the
defendant on April 26, 1955, which documents, according to him, he had failed to
secure earlier and produce before the trial court thru excusable negligence. The
petition, however, was denied.
On appeal to the Court of Appeals, that court held that there has been excusable
neglect in plaintiff's inability to present the proof of the child's birth, through her
birth certificate, and for that reason the court a quo erred in denying the motion for
reception of additional evidence. On the theory, however, that it was not impossible
for plaintiff and defendant to have had sexual intercourse during their engagement
so that the child could be their own, and finding unbelievable plaintiff's claim that he
did not notice or even suspect that defendant was pregnant when he married her,
the appellate court, nevertheless, affirmed the dismissal of the complaint.
On March 17, 1959, plaintiff filed a motion praying that the decision be
reconsidered, or, if such reconsideration be denied, that the case be remanded to
the lower court for new trial. In support of the motion, plaintiff attached as annexes
thereof the following documents:
1. Affidavit of Cesar Aquino (Annex A) (defendant's brother-in-law
and plaintiff's brother, with whom defendant was living at the time
plaintiff met, courted and married her, and with whom defendant
has begotten two more children, aside from her first born, in
common-law relationship) admitting that he is the father of
defendant's first born, Catherine Bess Aquino, and that he and

defendant hid her pregnancy from plaintiff at the time of plaintiff's

marriage to defendant;
2. Affidavit of defendant, Conchita Delizo (Annex "B") admitting
her pregnancy by Cesar Aquino, her brother-in-law and plaintiff's
own brother, at the time of her marriage to plaintiff and her having
hidden this fact from plaintiff before and up to the time of their
marriage;
3. Affidavit of Albert Powell (Annex "C") stating that he knew Cesar
Aquino and defendant lived together as husband and wife before
December 27, 1954, the date of plaintiff's marriage to defendant;
4. Birth Certificate of defendant's first born, Catherine Bess Aquino
showing her date of birth to be April 26, 1955;
5. Birth Certificate (Annex "D") of Carolle Ann Aquino, the second
child of defendant with Cesar Aquino, her brother-in-law;
6. Birth Certificate (Annex "E") of Chris Charibel Aquino, the third
child of Cesar Aquino and defendant; and
7. Pictures of defendant showing her natural plumpness as early
as 1952 to as late as November, 1954, the November, 1954 photo
itself does not show defendant's pregnancy which must have been
almost four months old at the time the picture was taken.
Acting upon the motion, the Court of Appeals ordered the defendant Conchita Delizo
and Assistant Provincial Fiscal of Rizal, who was representing the Government, to
answer the motion for reconsideration, and deferred action on the prayer for new
trial until after the case is disposed of. As both the defendant and the fiscal failed to
file an answer, and stating that it "does not believe the veracity of the contents of
the motion and its annexes", the Court of Appeals, on August 6, 1959, denied the
motion. From that order, the plaintiff brought the case to this Court thru the present
petition for certiorari.
After going over the record of the case, we find that the dismissal of plaintiff's
complaint cannot be sustained.
Under the new Civil Code, concealment by the wife of the fact that at the time of the
marriage, she was pregnant by a man other than her husband constitutes fraud and
is ground for annulment of marriage. (Art. 85, par. (4) in relation to Art. 86, par. (3).
In the case of Buccat vs. Buccat (72 Phil., 19) cited in the decision sought to be
reviewed, which was also an action for the annulment of marriage on the ground of
fraud, plaintiff's claim that he did not even suspect the pregnancy of the defendant
was held to be unbelievable, it having been proven that the latter was already in an
advanced stage of pregnancy (7th month) at the time of their marriage. That
pronouncement, however, cannot apply to the case at bar. Here the defendant wife
was alleged to be only more than four months pregnant at the time of her marriage
to plaintiff. At that stage, we are not prepared to say that her pregnancy was readily
apparent, especially since she was "naturally plump" or fat as alleged by plaintiff.
According to medical authorities, even on the 5th month of pregnancy, the
enlargement of a woman's abdomen is still below the umbilicus, that is to say, the
enlargement is limited to the lower part of the abdomen so that it is hardly
noticeable and may, if noticed, be attributed only to fat formation on the lower part
of the abdomen. It is only on the 6th month of pregnancy that the enlargement of
the woman's abdomen reaches a height above the umbilicus, making the roundness
of the abdomen more general and apparent. (See Lull, Clinical Obstetrics, p. 122) If,

37

as claimed by plaintiff, defendant is "naturally plump", he could hardly be expected

to know, merely by looking, whether or not she was pregnant at the time of their
marriage more so because she must have attempted to conceal the true state of
affairs. Even physicians and surgeons, with the aid of the woman herself who shows
and gives her subjective and objective symptoms, can only claim positive diagnosis
of pregnancy in 33% at five months. and 50% at six months. (XI Cyclopedia of
Medicine, Surgery, etc. Pregnancy, p. 10).
The appellate court also said that it was not impossible for plaintiff and defendant to
have had sexual intercourse before they got married and therefore the child could
be their own. This statement, however, is purely conjectural and finds no support or
justification in the record.
Upon the other hand, the evidence sought to be introduced at the new trial, taken
together with what has already been adduced would, in our opinion, be sufficient to
sustain the fraud alleged by plaintiff. The Court of Appeals should, therefore, not
have denied the motion praying for new trial simply because defendant failed to file
her answer thereto. Such failure of the defendant cannot be taken as evidence of
collusion, especially since a provincial fiscal has been ordered of represent the
Government precisely to prevent such collusion. As to the veracity of the contents of
the motion and its annexes, the same can best be determined only after hearing
evidence. In the circumstance, we think that justice would be better served if a new
trial were ordered.
Wherefore, the decision complained of is set aside and the case remanded to the
court a quo for new trial. Without costs.

38

G.R. No. 109975

February 9, 2001

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
ERLINDA MATIAS DAGDAG, respondent.
QUISUMBING, J.:

For review on certiorari is the decision1 of the Court of Appeals dated April 22, 1993,
in CA-G.R. CY No. 34378, which affirmed the decision of the Regional Trial Court of
Olongapo City in Civil Case No. 380-0-90 declaring the marriage of Erlinda Matias
Dagdag and Avelino Dagdag void under Article 36 of the Family Code.
On September 7, 1975, Erlinda Matias, 16 years old, married Avelino Parangan
Dagdag, 20 years old, at the Iglesia Filipina Independent Church in Cuyapo, Nueva
Ecija.2 The marriage certificate was issued by the Office of the Local Civil Registrar of
the Municipality of Cuyapo, Nueva Ecija, on October 20, 1988.
Erlinda and Avelino begot two children, namely: Avelyn M. Dagdag, born on January
16, 1978; and Eden M. Dagdag, born on April 21, 1982.3 Their birth certificates were
issued by the Office of the Local Civil Registrar of the Municipality of Cuyapo, Nueva
Ecija, also on October 20, 1988.
Erlinda and Avelino lived in a house in District 8, Cuyapo, Nueva Ecija, located at the
back of the house of their in-laws.4 A week after the wedding, Avelino started leaving
his family without explanation. He would disappear for months, suddenly reappear
for a few months, then disappear again. During the times when he was with his
family, he indulged in drinking sprees with friends and would return home drunk. He
would force his wife to submit to sexual intercourse and if she refused, he would
inflict physical injuries on her.5
On October 1993, he left his family again and that was the last they heard from him.
Erlinda was constrained to look for a job in Olongapo City as a manicurist to support
herself and her children. Finally, Erlinda learned that Avelino was imprisoned for
some crime,6 and that he escaped from jail on October 22, 1985.7 A certification
therefor dated February 14, 1990, was issued by Jail Warden Orlando S. Limon.
Avelino remains at-large to date.
On July 3, 1990, Erlinda filed with the Regional Trial Court of Olongapo City a petition
for judicial declaration of nullity of marriage on the ground of psychological
incapacity under Article 36 of the Family Code.8 Since Avelino could not be located,
summons was served by publication in the Olongapo News, a newspaper of general
circulation, on September 3, 10, and 17, 1990.9 Subsequently, a hearing was

conducted to establish jurisdictional facts. Thereafter, on December 17, 1990, the

date set for presentation of evidence, only Erlinda and her counsel appeared. Erlinda
testified and presented her sister-in-law, Virginia Dagdag, as her only witness.
Virginia testified that she is married to the brother of Avelino. She and her husband
live in Olongapo City but they spend their vacations at the house of Avelino's
parents in Cuyapo, Nueva Ecija. She testified that Erlinda and Avelino always
quarrelled, and that Avelino never stayed for long at the couple's house. She knew
that Avelino had been gone for a long time now, and that she pitied Erlinda and the
children.10
Thereafter, Erlinda rested her case. The trial court issued an Order giving the
investigating prosecutor until January 2, 1991, to manifest in writing whether or not
he would present controverting evidence, and stating that should he fail to file said
manifestation, the case would be deemed submitted for decision.
In compliance with the Order, the investigating prosecutor conducted an
investigation and found that there was no collusion between the parties. However,
he intended to intervene in the case to avoid fabrication of evidence. 11
On December 27, 1990, without waiting for the investigating prosecutor's
manifestation dated December 5, 1990, the trial court rendered a decision 12
declaring the marriage of Erlinda and Avelino void under Article 36 of the Family
Code, disposing thus:

"WHEREFORE, and viewed from the foregoing considerations, the Court

hereby declares the marriage celebrated at Cuyapo, Nueva Ecija between
Erlinda Matias and Avelino Dagdag on 7 September 1975 to be null and
void.
The Local Civil Registrar of Cuyapo, Nueva Ecija is hereby ordered to enter
into his Book of Marriage this declaration after this decision shall have
become final and executory .
SO ORDERED."

On January 29, 1991, the investigating prosecutor filed a Motion to Set Aside
Judgment on the ground that the decision was prematurely rendered since he was
given until January 2, 1991 to manifest whether he was presenting controverting
evidence.

39

The Office of the Solicitor General likewise filed a Motion for Reconsideration of the
decision on the ground that the same is not in accordance with the evidence and the
law. After requiring Erlinda to comment, the trial court denied the Motion for
Reconsideration in an Order dated August 21, 1991 as follows: 13

"This resolves the Motion for Reconsideration of the Decision of this

Honorable Court dated December 27, 1990 filed by the Solicitor-General.
The observation of the movant is to the effect that 'Mere alcoholism and
abusiveness are not enough to show psychological incapacity. Nor is
abandonment. These are common in marriage. There must be showing that
these traits, stemmed from psychological incapacity existing at the time of
celebration of the marriage.
In the case at bar, the abandonment is prolonged as the husband left his
wife and children since 1983. The defendant, while in jail escaped and
whose present whereabouts are unknown. He failed to support his family
for the same period of time, actuations clearly indicative of the failure of
the husband to comply with the essential marital obligations of marriage
defined and enumerated under Article 68 of the Family Code. These
findings of facts are uncontroverted. 1wphi1.nt
Defendant's character traits, by their nature, existed at the time of
marriage and became manifest only after the marriage. In rerum natura,
these traits are manifestations of lack of marital responsibility and appear
now to be incurable. Nothing can be graver since the family members are
now left to fend for themselves. Contrary to the opinion of the SolicitorGeneral, these are not common in marriage.
Let it be said that the provisions of Article 36 of the New Family Code, to
assuage the sensibilities of the more numerous church, is a substitute for
divorce (See: Sempio Diy, New Family Code, p. 36) in order to dissolve
marriages that exist only in name.
WHEREFORE, and the foregoing considered, the motion for Reconsideration
aforecited is DENIED for lack of merit.

THE LOWER COURT ERRED IN DECLARING APPELLEE'S MARRIAGE TO A

VELINO DAGDAG NULL AND VOID ON THE GROUND OF PSYCHOLOGICAL
INCAPACITY OF THE LATTER, PURSUANT TO ARTICLE 36 OF THE FAMILY
CODE, THE PSYCHOLOGICAL INCAPACITY OF THE NATURE CONTEMPLATED
BY THE LAW NOT HAVING BEEN PROVEN TO EXIST. 14
On April 22, 1993, the Court of Appeals rendered a decision 15 affirming the decision
of the trial court, disposing thus:

"Avelino Dagdag is psychologically incapacitated not only because he failed

to perform the duties and obligations of a married person but because he is
emotionally immature and irresponsible, an alcoholic, and a criminal.
Necessarily, the plaintiff is now endowed with the right to seek the judicial
declaration of nullity of their marriage under Article 36 of the Family Code.
Defendant's constant non-fulfillment of any of such obligations is
continously (sic) destroying the integrity or wholeness of his marriage with
the plaintiff. (Pineda, The Family Code of the Philippines Annotated, 1992
Ed., p. 46)."16

Hence, the present petition for review ,17 filed by the Solicitor General.
The Solicitor General contends that the alleged psychological incapacity of Avelino
Dagdag is not of the nature contemplated by Article 36 of the Family Code.
According to him, the Court of Appeals made an erroneous and incorrect
interpretation of the phrase "psychological incapacity" and an incorrect application
thereof to the facts of the case. Respondent, in her Comment, insists that the facts
constituting psychological incapacity were proven by preponderance of evidence
during trial.
At issue is whether or not the trial court and the Court of Appeals correctly declared
the marriage as null and void under Article 36 of the Family Code, on the ground
that the husband suffers from psychological incapacity as he is emotionally
immature and irresponsible, a habitual alcoholic, and a fugitive from justice.

SO ORDERED"
Article 36 of the Family Code provides The Solicitor General appealed to the Court of Appeals, raising the sole assignment
of error that:

40

"A marriage contracted by any party who, at the time of the celebration,
was psychologically incapacitated to comply with the essential marital
obligations of marriage, shall likewise be void even if such incapacity
becomes manifest only after its solemnization."
Whether or not psychological incapacity exists in a given case calling for annulment
of a marriage, depends crucially, more than in any field of the law, on the facts of
the case. Each case must be judged, not on the basis of a priori assumptions,
predilections or generalizations but according to its own facts. In regard to
psychological incapacity as a ground for annulment of marriage, it is trite to say that
no case is on "all fours" with another case. The trial judge must take pains in
examining the factual milieu and the appellate court must, as much as possible,
avoid substituting its own judgment for that of the trial court. 18
In Republic v. Court of Appeals and Molina,19the Court laid down the following
GUIDELINES in the interpretation and application of Article 36 of the Family Code:

"(1) The burden of proof to show the nullity of the marriage belongs to the
plaintiff. Any doubt should be resolved in favor of the existence and
continuation of the marriage and against its dissolution and nullity. This is
rooted in the fact that both our Constitution and our laws cherish the
validity of marriage and unity of the family. x x x

(2) The root cause of the psychological incapacity must be: (a) medically or
clinically identified, (b) alleged in the complaint, (c) sufficiently proven by
experts and (d) clearly explained in the decision. Article 36 of the Family
Code requires that the incapacity must be psychological - not physical,
although its manifestations and/or symptoms may be physical. The
evidence must convince the court that the parties, or one of them, was
mentally or psychically ill to such an extent that the person could not have
known the obligations he was assuming, or knowing them, could not have
given valid assumption thereof. Although no example of such incapacity
need be given here so as not to limit the application of the provision under
the principle of ejusdem generis (Salita vs. Magtolis, 233 SCRA 100, June
13, 1994), nevertheless such root cause must be identified as a
psychological illness and its incapacitating nature fully explained. Expert
evidence may be given by qualified psychiatrists and clinical psychologists.

existing when the parties exchanged their "I do's." The manifestation of the
illness need not be perceivable at such time, but the illness itself must have
attached at such moment, or prior thereto.

(4) Such incapacity must also be shown to be medically or clinically

permanent or incurable. Such incurability may be absolute or even relative
only in regard to the other spouse, not necessarily absolutely against
everyone of the same sex. Furthermore, such incapacity must be relevant
to the assumption of marriage obligations, not necessarily to those not
related to marriage, like the exercise of a profession or employment in a
job. Hence, a pediatrician may be effective in diagnosing illnesses of
children and prescribing medicine to cure them but may not be
psychologically capacitated to procreate, bear and raise his/her own
children as an essential obligation of marriage.

(5) Such illness must be grave enough to bring about the disability of the
party to assume the essential obligations of marriage. Thus, "mild
characteriological peculiarities, mood changes, occasional emotional
outbursts" cannot be accepted as root causes. The illness must be shown
as downright incapacity or inability, not a refusal, neglect or difficulty,
much less in will. In other words, there is a natal or supervening disabling
factor in the person, an adverse integral element in the personality
structure that effectively incapacitates the person from really accepting
and thereby complying with the obligations essential to marriage.

(6) The essential marital obligations must be those embraced by Articles 68

up to 71 of the Family Code20 as regards the husband and wife as well as
Articles 220, 221 and 225 of the same Code21 in regard to parents and their
children. Such non-complied marital obligation(s) must also be stated in the
petition, proven by evidence and included in the text of the decision.

(7) Interpretations given by the National Appellate Matrimonial Tribunal of

the Catholic Church in the Philippines, while not controlling or decisive,
should be given great respect by our courts. x x x

(3) The incapacity must be proven to be existing at "the time of the

celebration" of the marriage. The evidence must show that the illness was

41

(8) The trial court must order the prosecuting attorney or fiscal and the
Solicitor General to appear as counsel for the state. No decision shall be
handed down unless the Solicitor General issues a certification, which will
be quoted in the decision, briefly stating therein his reasons for his
agreement or opposition, as the case may be, to the petition. The SolicitorGeneral, along with the prosecuting attorney, shall submit to the court such
certification within fifteen (15) days from the date the case is deemed
submitted for resolution of the court. The Solicitor-General shall discharge
the equivalent function of the defensor vinculi contemplated under Canon
1095."22

No pronouncement as to costs.
SO ORDERED.

Taking into consideration these guidelines, it is evident that Erlinda failed to comply
with the above-mentioned evidentiary requirements. Erlinda failed to comply with
guideline No. 2 which requires that the root cause of psychological incapacity must
be medically or clinically identified and sufficiently proven by experts, since no
psychiatrist or medical doctor testified as to the alleged psychological incapacity of
her husband. Further, the allegation that the husband is a fugitive from justice was
not sufficiently proven. In fact, the crime for which he was arrested was not even
alleged. The investigating prosecutor was likewise not given an opportunity to
present controverting evidence since the trial court's decision was prematurely
rendered.
In the case of Hernandez v. Court of Appeals,23we affirmed the dismissal of the trial
court and Court of Appeals of the petition for annulment on the ground of dearth of
the evidence presented. We further explained therein that -

"Moreover, expert testimony should have been presented to establish the

precise cause of private respondent's psychological incapacity, if any, in
order to show that it existed at the inception of the marriage. The burden of
proof to show the nullity of the marriage rests upon petitioner. The Court is
mindful of the policy of the 1987 Constitution to protect and strengthen the
family as the basic autonomous social institution and marriage as the
foundation of the family. (Art. II, Sec. 12, Art. XV, Secs. 1-2) Thus, any doubt
should be resolved in favor of the validity of the marriage. (citing Republic
of the Philippines v. Court of Appeals, supra. )"24

WHEREFORE, the present petition is GRANTED. The assailed Decision of the Court
of Appeals dated April 22, 1993, in CA-G.R. CY No. 34378 is REVERSED and SET
ASIDE.

42

G.R. No. 179620

August 26, 2008

MANUEL G. ALMELOR, petitioner,

vs.
THE HON. REGIONAL TRIAL COURT OF LAS PIAS CITY, BRANCH 254, and
LEONIDA T. ALMELOR, respondents.
DECISION
REYES, R.T., J.:
MARRIAGE, in its totality, involves the spouses' right to the community of their whole
lives. It likewise involves a true intertwining of personalities. 1
This is a petition for review on certiorari of the Decision2 of the Court of Appeals (CA)
denying the petition for annulment of judgment and affirming in toto the decision of
the Regional Trial Court (RTC), Las Pias, Branch 254. The CA dismissed outright the
Rule 47 petition for being the wrong remedy.

Manuel has for his mother. Manuel's deep attachment to his mother and his
dependence on her decision-making were incomprehensible to Leonida. 8
Further adding to her woes was his concealment to her of his homosexuality. Her
suspicions were first aroused when she noticed Manuel's peculiar closeness to his
male companions. For instance, she caught him in an indiscreet telephone
conversation manifesting his affection for a male caller.9 She also found several
pornographic homosexual materials in his possession. 10 Her worse fears were
confirmed when she saw Manuel kissed another man on the lips. The man was a
certain Dr. Nogales.11 When she confronted Manuel, he denied everything. At this
point, Leonida took her children and left their conjugal abode. Since then, Manuel
stopped giving support to their children.12
Dr. Valentina del Fonso Garcia, a clinical psychologist, was presented to prove
Leonida's claim. Dr. del Fonso Garcia testified that she conducted evaluative
interviews and a battery of psychiatric tests on Leonida. She also had a one-time
interview with Manuel and face-to-face interviews with Ma. Paulina Corrinne (the
eldest child).13 She concluded that Manuel is psychologically incapacitated. 14 Such
incapacity is marked by antecedence; it existed even before the marriage and
appeared to be incurable.

The Facts
Petitioner Manuel G. Almelor (Manuel) and respondent Leonida Trinidad (Leonida)
were married on January 29, 1989 at the Manila Cathedral.3 Their union bore three
children: (1) Maria Paulina Corinne, born on October 20, 1989; (2) Napoleon Manuel,
born on August 9, 1991; and (3) Manuel Homer, born on July 4, 1994. 4 Manuel and
Leonida are both medical practitioners, an anesthesiologist and a pediatrician,
respectively.5
After eleven (11) years of marriage, Leonida filed a petition with the RTC in Las Pias
City to annul their marriage on the ground that Manuel was psychologically
incapacitated to perform his marital obligations. The case, docketed as LP-00-0132
was raffled off to Branch 254.
During the trial, Leonida testified that she first met Manuel in 1981 at the San Lazaro
Hospital where they worked as medical student clerks. At that time, she regarded
Manuel as a very thoughtful person who got along well with other people. They soon
became sweethearts. Three years after, they got married.6
Leonida averred that Manuel's kind and gentle demeanor did not last long. In the
public eye, Manuel was the picture of a perfect husband and father. This was not the
case in his private life. At home, Leonida described Manuel as a harsh disciplinarian,
unreasonably meticulous, easily angered. Manuel's unreasonable way of imposing
discipline on their children was the cause of their frequent fights as a couple. 7
Leonida complained that this was in stark contrast to the alleged lavish affection

Manuel, for his part, admitted that he and Leonida had some petty arguments here
and there. He, however, maintained that their marital relationship was generally
harmonious. The petition for annulment filed by Leonida came as a surprise to him.
Manuel countered that the true cause of Leonida's hostility against him was their
professional rivalry. It began when he refused to heed the memorandum 15 released
by Christ the King Hospital. The memorandum ordered him to desist from converting
his own lying-in clinic to a primary or secondary hospital. 16 Leonida's family owns
Christ the King Hospital which is situated in the same subdivision as Manuel's clinic
and residence.17 In other words, he and her family have competing or rival hospitals
in the same vicinity.
Manuel belied her allegation that he was a cruel father to their children. He denied
maltreating them. At most, he only imposed the necessary discipline on the children.
He also defended his show of affection for his mother. He said there was nothing
wrong for him to return the love and affection of the person who reared and looked
after him and his siblings. This is especially apt now that his mother is in her twilight
years.18 Manuel pointed out that Leonida found fault in this otherwise healthy
relationship because of her very jealous and possessive nature.19
This same overly jealous behavior of Leonida drove Manuel to avoid the company of
female friends. He wanted to avoid any further misunderstanding with his wife. But,
Leonida instead conjured up stories about his sexual preference. She also fabricated

43

tales about pornographic materials found in his possession to cast doubt on his
masculinity.20

Upon compliance, a decree of nullity of marriage shall be issued.

SO ORDERED.24 (Emphasis supplied)

To corroborate his version, he presented his brother, Jesus G. Almelor. Jesus narrated
that he usually stayed at Manuel's house during his weekly trips to Manila from Iriga
City. He was a witness to the generally harmonious relationship between his brother
Manuel and sister-in-law, Leonida. True, they had some quarrels typical of a husband
and wife relationship. But there was nothing similar to what Leonida described in her
testimony.21
Jesus further testified that he was with his brother on the day Leonida allegedly saw
Manuel kissed another man. He denied that such an incident occurred. On that
particular date,22 he and Manuel went straight home from a trip to Bicol. There was
no other person with them at that time, except their driver. 23
Manuel expressed his intention to refute Dr. del Fonso Garcia's findings by
presenting his own expert witness. However, no psychiatrist was presented.
RTC Disposition
By decision dated November 25, 2005, the RTC granted the petition for annulment,
with the following disposition:
WHEREFORE, premised on the foregoing, judgment is hereby rendered:
1. Declaring the marriage contracted by herein parties on 29 January 1989
and all its effects under the law null and void from the beginning;
2. Dissolving the regime of community property between the same parties
with forfeiture of defendant's share thereon in favor of the same parties'
children whose legal custody is awarded to plaintiff with visitorial right
afforded to defendant;
3. Ordering the defendant to give monthly financial support to all the
children; and
4. Pursuant to the provisions of A.M. No. 02-11-10-SC:
a. Directing the Branch Clerk of this Court to enter this Judgment
upon its finality in the Book of Entry of Judgment and to issue an
Entry of Judgment in accordance thereto; and
b. Directing the Local Civil Registrars of Las Pias City and Manila
City to cause the registration of the said Entry of Judgment in their
respective Books of Marriages.

The trial court nullified the marriage, not on the ground of Article 36, but Article 45
of the Family Code. It ratiocinated:
x x x a careful evaluation and in-depth analysis of the surrounding
circumstances of the allegations in the complaint and of the evidence
presented in support thereof (sic) reveals that in this case (sic) there is
more than meets the eyes (sic).
Both legally and biologically, homosexuality x x x is, indeed, generally
incompatible with hetero sexual marriage. This is reason enough that in this
jurisdiction (sic) the law recognizes marriage as a special contract
exclusively only between a man and a woman x x x and thus when
homosexuality has trespassed into marriage, the same law provides ample
remedies to correct the situation [Article 45(3) in relation to Article 46(4) or
Article 55, par. 6, Family Code]. This is of course in recognition of the
biological fact that no matter how a man cheats himself that he is not a
homosexual and forces himself to live a normal heterosexual life, there will
surely come a time when his true sexual preference as a homosexual shall
prevail in haunting him and thus jeopardizing the solidity, honor, and
welfare of his own family.25
Manuel filed a notice of appeal which was, however, denied due course. Undaunted,
he filed a petition for annulment of judgment with the CA.26
Manuel contended that the assailed decision was issued in excess of the lower
court's jurisdiction; that it had no jurisdiction to dissolve the absolute community of
property and forfeit his conjugal share in favor of his children.
CA Disposition
On July 31, 2007, the CA denied the petition, disposing as follows:
WHEREFORE, the present Petition for Annulment of Judgment is hereby
DENIED. The Court AFFIRMS in toto the Decision (dated November 25,
2005) of the Regional Trial Court (Branch 254), in Las Pias City, in Civil
Case No. LP-00-0132. No costs.27
The CA stated that petitioner pursued the wrong remedy by filing the extraordinary
remedy of petition for annulment of judgment. Said the appellate court:

44

It is obvious that the petitioner is questioning the propriety of the decision

rendered by the lower Court. But the remedy assuming there was a mistake
is not a Petition for Annulment of Judgment but an ordinary appeal. An error
of judgment may be reversed or corrected only by appeal.
What petitioner is ascribing is an error of judgment, not of jurisdiction,
which is properly the subject of an ordinary appeal.
In short, petitioner admits the jurisdiction of the lower court but he claims
excess in the exercise thereof. "Excess" assuming there was is not covered
by Rule 47 of the 1997 Rules of Civil Procedure. The Rule refers the lack of
jurisdiction and not the exercise thereof.28
Issues
Petitioner Manuel takes the present recourse via Rule 45, assigning to the CA the
following errors:
I
THE HONORABLE COURT OF APPEALS ERRED IN NOT TREATING THE
PETITION FOR ANNULMENT OF JUDGMENT AS A PETITION FOR REVIEW IN
VIEW OF THE IMPORTANCE OF THE ISSUES INVOLVED AND IN THE INTEREST
OF JUSTICE;
II
THE HONORABLE COURT OF APPEALS ERRED IN UPHOLDING THE DECISION
OF THE TRIAL COURT AS REGARDS THE ORDER DECLARING THE MARRIAGE
AS NULL AND VOID ON THE GROUND OF PETITIONER'S PSYCHOLOGICAL
INCAPACITY;
III
THE HONORABLE COURT OF APPEALS ERRED IN UPHOLDING THE DECISION
OF THE TRIAL COURT AS REGARDS THE ORDER TO FORFEIT THE SHARE OF
PETITIONER IN HIS SHARE OF THE CONJUGAL ASSETS.29
Our Ruling
I. The stringent rules of procedures may be relaxed to serve the demands
of substantial justice and in the Court's exercise of equity jurisdiction.
Generally, an appeal taken either to the Supreme Court or the CA by the wrong or
inappropriate mode shall be dismissed.30 This is to prevent the party from benefiting

from one's neglect and mistakes. However, like most rules, it carries certain
exceptions. After all, the ultimate purpose of all rules of procedures is to achieve
substantial justice as expeditiously as possible.31
Annulment of judgment under Rule 47 is a last remedy. It can not be resorted to if
the ordinary remedies are available or no longer available through no fault of
petitioner.32 However, in Buenaflor v. Court of Appeals,33 this Court clarified the
proper appreciation for technical rules of procedure, in this wise:
Rules of procedures are intended to promote, not to defeat,
substantial justice and, therefore, they should not be applied in a
very rigid and technical sense. The exception is that while the
Rules are liberally construed, the provisions with respect to the
rules on the manner and periods for perfecting appeals are strictly
applied. As an exception to the exception, these rules have
sometimes been relaxed on equitable considerations . Also, in some
cases the Supreme Court has given due course to an appeal perfected out
of time where a stringent application of the rules would have denied it, but
only when to do so would serve the demands of substantial justice and in
the exercise of equity jurisdiction of the Supreme Court.34 (Emphasis and
underscoring supplied)
For reasons of justice and equity, this Court has allowed exceptions to the stringent
rules governing appeals.35 It has, in the past, refused to sacrifice justice for
technicality.36
After discovering the palpable error of his petition, Manuel seeks the indulgence of
this Court to consider his petition before the CA instead as a petition for certiorari
under Rule 65.
A perusal of the said petition reveals that Manuel imputed grave abuse of discretion
to the lower court for annulling his marriage on account of his alleged
homosexuality. This is not the first time that this Court is faced with a similar
situation. In Nerves v. Civil Service Commission,37 petitioner Delia R. Nerves elevated
to the CA a Civil Service Commission (CSC) decision suspending her for six (6)
months. The CSC ruled Nerves, a public school teacher, is deemed to have already
served her six-month suspension during the pendency of the case. Nevertheless,
she is ordered reinstated without back wages. On appeal, Nerves stated in her
petition, inter alia:
1. This is a petition for certiorari filed pursuant to Article IX-A, Section 7 of
the Constitution of the Philippines and under Rule 65 of the Rules of Court.
2. But per Supreme Court Revised Administrative Circular No. 1-95 (Revised
Circular No. 1-91) petitioner is filing the instant petition with this Honorable
Court instead of the Supreme Court.38 (Underscoring supplied)

45

The CA dismissed Nerves' petition for certiorari for being the wrong remedy or the
inappropriate mode of appeal.39 The CA opined that "under the Supreme Court
Revised Administrative Circular No. 1-95 x x x appeals from judgments or final
orders or resolutions of CSC is by a petition for review." 40
This Court granted Nerves petition and held that she had substantially complied with
the Administrative Circular. The Court stated:
That it was erroneously labeled as a petition for certiorari under Rule 65 of
the Rules of Court is only a minor procedural lapse, not fatal to the appeal.
xxx
More importantly, the appeal on its face appears to be impressed with
merit. Hence, the Court of Appeals should have overlooked the
insubstantial defects of the petition x x x in order to do justice to the
parties concerned. There is, indeed, nothing sacrosanct about procedural
rules, which should be liberally construed in order to promote their object
and assist the parties in obtaining just, speedy, and inexpensive
determination of every action or proceeding. As it has been said, where the
rigid application of the rules would frustrate substantial justice, or bar the
vindication of a legitimate grievance, the courts are justified in exempting a
particular case from the operation of the rules.41 (Underscoring supplied)
Similarly, in the more recent case of Tan v. Dumarpa,42 petitioner Joy G. Tan availed
of a wrong remedy by filing a petition for review on certiorari instead of a motion for
new trial or an ordinary appeal. In the interest of justice, this Court considered the
petition, pro hac vice, as a petition for certiorari under Rule 65.
This Court found that based on Tan's allegations, the trial court prima facie
committed grave abuse of discretion in rendering a judgment by default. If
uncorrected, it will cause petitioner great injustice. The Court elucidated in this wise:
Indeed, where as here, there is a strong showing that grave miscarriage of
justice would result from the strict application of the Rules, we will not
hesitate to relax the same in the interest of substantial justice.43
(Underscoring supplied)
Measured by the foregoing yardstick, justice will be better served by giving due
course to the present petition and treating petitioner's CA petition as one for
certiorari under Rule 65, considering that what is at stake is the validity or nonvalidity of a marriage.
In Salazar v. Court of Appeals,44 citing Labad v. University of Southeastern
Philippines, this Court reiterated:

x x x The dismissal of appeals on purely technical grounds is frowned upon.

While the right to appeal is a statutory, not a natural right, nonetheless it is
an essential part of our judicial system and courts should proceed with
caution so as not to deprive a party of the right to appeal, but rather,
ensure that every party-litigant has the amplest opportunity for the proper
and just disposition of his cause, free from the constraints of
technicalities.45
Indeed, it is far better and more prudent for a court to excuse a technical lapse and
afford the parties a review of the case on the merits to attain the ends of justice. 46
Furthermore, it was the negligence and incompetence of Manuel's counsel that
prejudiced his right to appeal. His counsel, Atty. Christine Dugenio, repeatedly
availed of inappropriate remedies. After the denial of her notice of appeal, she failed
to move for reconsideration or new trial at the first instance. She also erroneously
filed a petition for annulment of judgment rather than pursue an ordinary appeal.
These manifest errors were clearly indicative of counsel's incompetence. These
gravely worked to the detriment of Manuel's appeal. True it is that the negligence of
counsel binds the client. Still, this Court has recognized certain exceptions: (1)
where reckless or gross negligence of counsel deprives the client of due process of
law; (2) when its application will result in outright deprivation of the client's liberty
and property; or (3) where the interest of justice so require. 47
The negligence of Manuel's counsel falls under the exceptions. Ultimately, the
reckless or gross negligence of petitioner's former counsel led to the loss of his right
to appeal. He should not be made to suffer for his counsel's grave mistakes. Higher
interests of justice and equity demand that he be allowed to ventilate his case in a
higher court.
In Apex Mining, Inc. v. Court of Appeals,48 this Court explained thus:
It is settled that the negligence of counsel binds the client. This is based on
the rule that any act performed by a counsel within the scope of his general
or implied authority is regarded as an act of his client. However, where
counsel is guilty of gross ignorance, negligence and dereliction of duty,
which resulted in the client's being held liable for damages in a damage
suit, the client is deprived of his day in court and the judgment may be set
aside on such ground. In the instant case, higher interests of justice and
equity demand that petitioners be allowed to present evidence on their
defense. Petitioners may not be made to suffer for the lawyer's mistakes.
This Court will always be disposed to grant relief to parties
aggrieved by perfidy, fraud, reckless inattention and downright
incompetence of lawyers, which has the consequence of depriving
their clients, of their day in court.49 (Emphasis supplied)

46

Clearly, this Court has the power to except a particular case from the operation of
the rule whenever the demands of justice require it. With more conviction should it
wield such power in a case involving the sacrosanct institution of marriage. This
Court is guided with the thrust of giving a party the fullest opportunity to establish
the merits of one's action.50
The client was likewise spared from counsel's negligence in Government Service
Insurance System v. Bengson Commercial Buildings, Inc.51 and Ancheta v. GuerseyDalaygon.52 Said the Court in Bengson:
But if under the circumstances of the case, the rule deserts its proper office
as an aid to justice and becomes a great hindrance and chief enemy, its
rigors must be relaxed to admit exceptions thereto and to prevent a
miscarriage of justice. In other words, the court has the power to except a
particular case from the operation of the rule whenever the purposes of
justice require it.53
II. Concealment of homosexuality is the proper ground to annul a
marriage, not homosexuality per se.
Manuel is a desperate man determined to salvage what remains of his marriage.
Persistent in his quest, he fought back all the heavy accusations of incapacity,
cruelty, and doubted masculinity thrown at him.
The trial court declared that Leonida's petition for nullity had "no basis at all
because the supporting grounds relied upon can not legally make a case under
Article 36 of the Family Code." It went further by citing Republic v. Molina:54
Indeed, mere allegations of conflicting personalities, irreconcilable
differences, incessant quarrels and/or beatings, unpredictable mood swings,
infidelities, vices, abandonment, and difficulty, neglect, or failure in the
performance of some marital obligations do not suffice to establish
psychological incapacity.55
If so, the lower court should have dismissed outright the petition for not meeting the
guidelines set in Molina. What Leonida attempted to demonstrate were Manuel's
homosexual tendencies by citing overt acts generally predominant among
homosexual individuals.56 She wanted to prove that the perceived homosexuality
rendered Manuel incapable of fulfilling the essential marital obligations.
But instead of dismissing the petition, the trial court nullified the marriage between
Manuel and Leonida on the ground of vitiated consent by virtue of fraud. In support
of its conclusion, the lower court reasoned out:
As insinuated by the State (p. 75, TSN, 15 December 2003), when there is
smoke surely there is fire. Although vehemently denied by defendant, there

is preponderant evidence enough to establish with certainty that defendant

is really a homosexual. This is the fact that can be deduced from the
totality of the marriage life scenario of herein parties.
Before his marriage, defendant knew very well that people around him
even including his own close friends doubted his true sexual preference
(TSN, pp. 35-36, 13 December 2000; pp. 73-75, 15 December 2003). After
receiving many forewarnings, plaintiff told defendant about the rumor she
heard but defendant did not do anything to prove to the whole world once
and for all the truth of all his denials. Defendant threatened to sue those
people but nothing happened after that. There may have been more
important matters to attend to than to waste time and effort filing cases
against and be effected by these people and so, putting more premiums on
defendant's denials, plaintiff just the same married him. Reasons upon
reasons may be advanced to either exculpate or nail to the cross defendant
for his act of initially concealing his homosexuality to plaintiff, but in the
end, only one thing is certain - even during his marriage with plaintiff, the
smoke of doubt about his real preference continued and even got thicker,
reason why obviously defendant failed to establish a happy and solid
family; and in so failing, plaintiff and their children became his innocent and
unwilling victims.
Yes, there is nothing untoward of a man if, like herein defendant, he is
meticulous over even small details in the house (sic) like wrongly folded
bed sheets, etc. or if a man is more authoritative in knowing what clothes
or jewelry shall fit his wife (pp. 77-81, TSN, 15 December 2003); but these
admissions of defendant taken in the light of evidence presented
apparently showing that he had extra fondness of his male friends (sic) to
the extent that twice on separate occasions (pp. 4-7, TSN, 14 February
2001) he was allegedly seen by plaintiff kissing another man lips-to-lips
plus the homosexual magazines and tapes likewise allegedly discovered
underneath his bed (Exhibits "L" and "M"), the doubt as to his real sex
identity becomes stronger. The accusation of plaintiff versus thereof of
defendant may be the name of the game in this case; but the simple
reason of professional rivalry advanced by the defendant is certainly not
enough to justify and obscure the question why plaintiff should accuse him
of such a very untoward infidelity at the expense and humiliation of their
children and family as a whole.57
Evidently, no sufficient proof was presented to substantiate the allegations that
Manuel is a homosexual and that he concealed this to Leonida at the time of their
marriage. The lower court considered the public perception of Manuel's sexual
preference without the corroboration of witnesses. Also, it took cognizance of
Manuel's peculiarities and interpreted it against his sexuality.
Even assuming, ex gratia argumenti, that Manuel is a homosexual, the lower court
cannot appreciate it as a ground to annul his marriage with Leonida. The law is clear
- a marriage may be annulled when the consent of either party was obtained by

47

fraud,58 such as concealment of homosexuality.59 Nowhere in the said decision was it

proven by preponderance of evidence that Manuel was a homosexual at the onset of
his marriage and that he deliberately hid such fact to his wife. 60 It is the
concealment of homosexuality, and not homosexuality per se, that vitiates the
consent of the innocent party. Such concealment presupposes bad faith and intent
to defraud the other party in giving consent to the marriage.
Consent is an essential requisite of a valid marriage. To be valid, it must be freely
given by both parties. An allegation of vitiated consent must be proven by
preponderance of evidence. The Family Code has enumerated an exclusive list of
circumstances61 constituting fraud. Homosexuality per se is not among those cited,
but its concealment.
This distinction becomes more apparent when we go over the deliberations 62 of the
Committees on the Civil Code and Family Law, to wit:
Justice Caguioa remarked that this ground should be eliminated in the
provision on the grounds for legal separation. Dean Gupit, however, pointed
out that in Article 46, they are talking only of "concealment," while in the
article on legal separation, there is actuality. Judge Diy added that in legal
separation, the ground existed after the marriage, while in Article 46, the
ground existed at the time of the marriage. Justice Reyes suggested that,
for clarity, they add the phrase "existing at the time of the marriage" at the
end of subparagraph (4). The Committee approved the suggestion.63
To reiterate, homosexuality per se is only a ground for legal separation. It is its
concealment that serves as a valid ground to annul a marriage. 64 Concealment in
this case is not simply a blanket denial, but one that is constitutive of fraud. It is this
fundamental element that respondent failed to prove.
In the United States, homosexuality has been considered as a basis for divorce. It
indicates that questions of sexual identity strike so deeply at one of the basic
elements of marriage, which is the exclusive sexual bond between the spouses. 65 In
Crutcher v. Crutcher,66 the Court held:
Unnatural practices of the kind charged here are an infamous indignity to
the wife, and which would make the marriage relation so revolting to her
that it would become impossible for her to discharge the duties of a wife,
and would defeat the whole purpose of the relation. In the natural course of
things, they would cause mental suffering to the extent of affecting her
health.67
However, although there may be similar sentiments here in the Philippines, the legal
overtones are significantly different. Divorce is not recognized in the country.
Homosexuality and its alleged incompatibility to a healthy heterosexual life are not
sanctioned as grounds to sever the marriage bond in our jurisdiction. At most, it is
only a ground to separate from bed and board.

What was proven in the hearings a quo was a relatively blissful marital union for
more than eleven (11) years, which produced three (3) children. The burden of proof
to show the nullity of the marriage rests on Leonida. Sadly, she failed to discharge
this onus.
The same failure to prove fraud which purportedly resulted to a vitiated marital
consent was found in Villanueva v. Court of Appeals.68 In Villanueva, instead of
proving vitiation of consent, appellant resorted to baseless portrayals of his wife as a
perpetrator of fraudulent schemes. Said the Court:
Factual findings of the Court of Appeals, especially if they coincide with
those of the trial court, as in the instant case, are generally binding on this
Court. We affirm the findings of the Court of Appeals that petitioner freely
and voluntarily married private respondent and that no threats or
intimidation, duress or violence compelled him to do so, thus Appellant anchored his prayer for the annulment of his marriage on the
ground that he did not freely consent to be married to the appellee. He
cited several incidents that created on his mind a reasonable and wellgrounded fear of an imminent and grave danger to his life and safety. x x x
The Court is not convinced that appellant's apprehension of danger to his
person is so overwhelming as to deprive him of the will to enter voluntarily
to a contract of marriage. It is not disputed that at the time he was
allegedly being harassed, appellant worked as a security guard in a bank.
Given the rudiments of self-defense, or, at the very least, the proper way to
keep himself out of harm's way. x x x
Appellant also invoked fraud to annul his marriage, as he was made to
believe by appellee that the latter was pregnant with his child when they
were married. Appellant's excuse that he could not have impregnated the
appellee because he did not have an erection during their tryst is flimsy at
best, and an outright lie at worst. The complaint is bereft of any reference
to his inability to copulate with the appellee. x x x
xxxx
x x x The failure to cohabit becomes relevant only if it arises as a result of
the perpetration of any of the grounds for annulling the marriage, such as
lack of parental consent, insanity, fraud, intimidation, or undue influence x
x x. Since the appellant failed to justify his failure to cohabit with the
appellee on any of these grounds, the validity of his marriage must be
upheld.69

48

Verily, the lower court committed grave abuse of discretion, not only by solely taking
into account petitioner's homosexuality per se and not its concealment, but by
declaring the marriage void from its existence.

SO ORDERED.

This Court is mindful of the constitutional policy to protect and strengthen the family
as the basic autonomous social institution and marriage as the foundation of the
family.70 The State and the public have vital interest in the maintenance and
preservation of these social institutions against desecration by fabricated
evidence.71 Thus, any doubt should be resolved in favor of the validity of marriage.
III. In a valid marriage, the husband and wife jointly administer and enjoy
their community or conjugal property.
Article 96 of the Family Code, on regimes of absolute community property, provides:
Art. 96. The administration and enjoyment of the community property shall
belong to both spouses jointly. In case of disagreement, the husband's
decision shall prevail, subject to recourse to the court by the wife for a
proper remedy, which must be availed of within five years from the date of
the contract implementing such decision.
In the event that one spouse is incapacitated or otherwise unable to
participate in the administration of the common properties, the other
spouse may assume sole powers of administration. These powers do not
include the powers of disposition or encumbrance without the authority of
the court or the written consent of the other spouse. In the absence of such
authority or consent, the disposition or encumbrance shall be void.
However, the transaction shall be construed as a continuing offer on the
part of the consenting spouse and the third person, and may be perfected
as a binding contract upon the acceptance by the other spouse or
authorization by the court before the offer is withdrawn by either or both
offerors.
A similar provision, Article 12472 prescribes joint administration and enjoyment in a
regime of conjugal partnership. In a valid marriage, both spouses exercise
administration and enjoyment of the property regime, jointly.
In the case under review, the RTC decreed a dissolution of the community property
of Manuel and Leonida. In the same breath, the trial court forfeited Manuel's share in
favor of the children. Considering that the marriage is upheld valid and subsisting,
the dissolution and forfeiture of Manuel's share in the property regime is
unwarranted. They remain the joint administrators of the community property.
WHEREFORE, the petition is GRANTED. The appealed Decision is REVERSED and
SET ASIDE and the petition in the trial court to annul the marriage is DISMISSED.

49

VERONICA
CABACUNGAN
ALCAZAR,
Petitioner,

G.R. No. 174451

Present:
- versus -

CARPIO, J.,
REY C. ALCAZAR,
Respondent.

Chairperson,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA, and
PERALTA, JJ.
Promulgated:

October 13, 2009

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

This Petition for Review on Certiorari seeks to reverse the Decision 1 dated
24 May 2006 of the Court of Appeals in CA-G.R. CV No. 84471, affirming the Decision
dated 9 June 2004 of the Regional Trial Court (RTC) of Malolos City, Branch 85, in
Civil Case No. 664-M-2002, which dismissed petitioner Veronica Cabacungan
Alcazars Complaint for the annulment of her marriage to respondent Rey C. Alcazar.
The Complaint,2 docketed as Civil Case No. 664-M-2002, was filed by
petitioner before the RTC on 22 August 2002. Petitioner alleged in her Complaint
that she was married to respondent on 11 October 2000 by Rev. Augusto G.
Pabustan (Pabustan), at the latters residence. After their wedding, petitioner and
respondent lived for five days in San Jose, Occidental Mindoro, the hometown of

respondents parents. Thereafter, the newlyweds went back to Manila, but

respondent did not live with petitioner at the latters abode at 2601-C Jose Abad
Santos Avenue, Tondo, Manila. On 23 October 2000, respondent left for Riyadh,
Kingdom of Saudi Arabia, where he worked as an upholsterer in a furniture shop.
While working in Riyadh, respondent did not communicate with petitioner by phone
or by letter. Petitioner tried to call respondent for five times but respondent never
answered. About a year and a half after respondent left for Riyadh, a co-teacher
informed petitioner that respondent was about to come home to the Philippines.
Petitioner was surprised why she was not advised by respondent of his arrival.
Petitioner further averred in her Complaint that when respondent arrived in
the Philippines, the latter did not go home to petitioner at 2601-C Jose Abad Santos
Avenue, Tondo, Manila. Instead, respondent proceeded to his parents house in San
Jose, Occidental Mindoro. Upon learning that respondent was in San Jose, Occidental
Mindoro, petitioner went to see her brother-in-law in Velasquez St., Tondo, Manila,
who claimed that he was not aware of respondents whereabouts. Petitioner traveled
to San Jose, Occidental Mindoro, where she was informed that respondent had been
living with his parents since his arrival in March 2002.
Petitioner asserted that from the time respondent arrived in the Philippines,
he never contacted her. Thus, petitioner concluded that respondent was physically
incapable of consummating his marriage with her, providing sufficient cause for
annulment of their marriage pursuant to paragraph 5, Article 45 of the Family Code
of the Philippines (Family Code). There was also no more possibility of reconciliation
between petitioner and respondent.
Per the Sheriffs Return3 dated 3 October 2002, a summons, together with a
copy of petitioners Complaint, was served upon respondent on 30 September 2002. 4
On 18 November 2002, petitioner, through counsel, filed a Motion 5 to direct
the public prosecutor to conduct an investigation of the case pursuant to Article 48
of the Family Code.
As respondent did not file an Answer, the RTC issued on 27 November 2002
an Order6 directing the public prosecutor to conduct an investigation to ensure that
no collusion existed between the parties; to submit a report thereon; and to appear

3
4

6
50

in all stages of the proceedings to see to it that evidence was not fabricated or
suppressed.
On 4 March 2003, Public Prosecutrix Veronica A.V. de Guzman (De Guzman)
submitted her Report manifesting that she had conducted an investigation of the
case of petitioner and respondent in January 2003, but respondent never
participated therein. Public Prosecutrix De Guzman also noted that no collusion took
place between the parties, and measures were taken to prevent suppression of
evidence between them. She then recommended that a full-blown trial be conducted
to determine whether petitioners Complaint was meritorious or not.

1. has a grandiose of self-importance (e.g. exaggerates achievements and

talents, expect to be recognized as superior without commensurate
achievements)
2. is preoccupied with fantasies of unlimited success, power, brilliance,
beauty or ideal love
3. believes that he or she is special and unique and can only be understood
by, or should associate with, other special or high status people
(institutions)

Pre-trial was held and terminated on 20 May 2003.

4. requires excessive admiration

On 21 May 2003, the RTC received the Notice of Appearance of the Solicitor

5. has sense of entitlement, i.e., unreasonable expectations of especially

favorable treatment or automatic compliance with his or her expectations

Trial on the merits ensued thereafter.

6. is interpersonally exploitative, i.e., takes advantage of others to achieve

his or her own ends

General.

During trial, petitioner presented herself, her mother Lolita Cabacungan

(Cabacungan), and clinical psychologist Nedy L. Tayag (Tayag) as witnesses.
Petitioner first took the witness stand and elaborated on the allegations in
her Complaint. Cabacungan corroborated petitioners testimony.
Petitioners third witness, Tayag, presented the following psychological evaluation of
petitioner and respondent:
After meticulous scrutiny and careful analysis of the collected data,
petitioner is found to be free from any underlying personality aberration
neither (sic) of any serious psychopathological traits, which may possibly
impede her normal functioning (sic) of marriage. On the other hand, the
undersigned arrived to (sic) a firm opinion that the sudden breakdown of
marital life between petitioner and respondent was clearly due to the
diagnosed personality disorder that the respondent is harboring, making
him psychologically incapacitated to properly assume and comply [with]
essential roles (sic) of obligations as a married man.
The pattern of behaviors displayed by the respondent satisfies the
diagnostic criteria of a disorder clinically classified as Narcissistic
Personality Disorder, a condition deemed to be grave, severe, long
lasting in proportion and incurable by any treatment.
People suffering from Narcissistic Personality Disorder are known to
have a pervasive pattern of grandiosity (in fantasy or behavior), need for
admiration, and lack of empathy, beginning by early adulthood and present
in a variety of contexts, as indicated by five (or more) of the following:

7. lacks empathy: is unwilling to recognize or identify with the feelings and

needs of others
8. is often envious of others or believes that others are envious of him or
her
9. shows arrogant, haughty behavior or attitudes.
The root cause of respondents personality disorder can be attributed to his
early childhood years with predisposing psychosocial factors that
influence[d] his development. It was recounted that respondent is the first
child of his mothers second family. Obviously, unhealthy familial
constellation composed his immediate environment in his growing up
years. Respondent had undergone a severe longing for attention from his
father who had been unfaithful to them and had died early in life, that he
was left alone to fend for the family needs. More so that they were coping
against poverty, his caregivers failed to validate his needs, wishes or
responses and overlooked the love and attention he yearned which led to
develop a pathological need for self-object to help him maintain a cohesive
sense of self-such so great that everything other people offer is consumed.
Hence, he is unable to develop relationship with other (sic) beyond this
need. There is no capacity for empathy sharing, or loving others.
The psychological incapacity of the respondent is characterized by juridical
antecedence as it already existed long before he entered into marriage.
Since it already started early in life, it is deeply engrained within his system

51

and becomes a[n] integral part of his personality structure, thereby

rendering such to be permanent and incurable. 7

WHEREFORE, premises considered, the Petition for Annulment of Marriage

is hereby DENIED.9

Tayag concluded in the end that:

As such, their marriage is already beyond repair, considering the fact that it
has long been (sic) ceased to exist and have their different life priorities.
Reconciliation between them is regarded to be (sic). The essential
obligations of love, trust, respect, fidelity, authentic cohabitation as
husband and wife, mutual help and support, and commitment, did not and
will no lon[g]er exist between them. With due consideration of the abovementioned findings, the undersigned recommends, the declaration of nullity
of marriage between petitioner and respondent.8

On 18 February 2004, petitioner filed her Formal Offer of Evidence. Public

Prosecutrix Myrna S. Lagrosa (Lagrosa), who replaced Public Prosecutrix De Guzman,
interposed no objection to the admission of petitioners evidence and manifested
that she would no longer present evidence for the State.

Petitioner filed a Motion for Reconsideration 10 but it was denied by the RTC in an
Order11 dated 19 August 2004.
Aggrieved, petitioner filed an appeal with the Court of Appeals, docketed as
CA-G.R. CV No. 84471. In a Decision12 dated 24 May 2006, the Court of Appeals
affirmed the RTC Decision dated 9 June 2004. The Court of Appeals ruled that the
RTC did not err in finding that petitioner failed to prove respondents psychological
incapacity. Other than petitioners bare allegations, no other evidence was presented
to prove respondents personality disorder that made him completely unable to
discharge the essential obligations of the marital state. Citing Republic v. Court of
Appeals,13 the appellate court ruled that the evidence should be able to establish
that at least one of the spouses was mentally or physically ill to such an extent that
said person could not have known the marital obligations to be assumed; or knowing
the marital obligations, could not have validly assumed the same. At most,
respondents abandonment of petitioner could be a ground for legal separation under
Article 5 of the Family Code.
Petitioners Motion for Reconsideration was denied by the Court of Appeals in a
Resolution14 dated 28 August 2008.

On 9 June 2004, the RTC rendered its Decision denying petitioners

Complaint for annulment of her marriage to respondent, holding in substance that:

In the case at bar, the Court finds that the acts of the respondent in not
communicating with petitioner and not living with the latter the moment he
returned home from Saudi Arabia despite their marriage do (sic) not lead to
a conclusion of psychological incapacity on his part. There is absolutely no
showing that his defects were already present at the inception of their
marriage or that these are incurable.

Hence, this Petition raising the sole issue of:

9
10
11

That being the case, the Court resolves to deny the instant petition.

12
7

13

14
52

WHETHER OR NOT, AS DEFINED BY THE LAW AND JURISPRUDENCE,

RESPONDENT IS PSYCHOLOGICALLY INCAPACITATED TO PERFORM THE
ESSENTIAL MARITAL OBLIGATONS.15

At the outset, it must be noted that the Complaint originally filed by petitioner
before the RTC was for annulment of marriage based on Article 45, paragraph
5 of the Family Code, which reads:

ART. 45. A marriage may be annulled for any of the following causes, existing at the
time of the marriage:

xxxx
(5) That either party was physically incapable of
consummating the marriage with the other, and such
incapacity continues and appears to be incurable; x x x.
Article 45(5) of the Family Code refers to lack of power to copulate. 16
Incapacity to consummate denotes the permanent inability on the part of the
spouses to perform the complete act of sexual intercourse. 17 Non-consummation of a
marriage may be on the part of the husband or of the wife and may be caused by a
physical or structural defect in the anatomy of one of the parties or it may be due to
chronic illness and inhibitions or fears arising in whole or in part from psychophysical
conditions. It may be caused by psychogenic causes, where such mental block or
disturbance has the result of making the spouse physically incapable of performing
the marriage act.18
No evidence was presented in the case at bar to establish that respondent
was in any way physically incapable to consummate his marriage with petitioner.
Petitioner even admitted during her cross-examination that she and respondent had
sexual intercourse after their wedding and before respondent left for abroad. There
obviously being no physical incapacity on respondents part, then, there is no ground
for annulling petitioners marriage to respondent. Petitioners Complaint was,
therefore, rightfully dismissed.

One curious thing, though, caught this Courts attention. As can be gleaned
from the evidence presented by petitioner and the observations of the RTC and the
Court of Appeals, it appears that petitioner was actually seeking the declaration of
nullity of her marriage to respondent based on the latters psychological incapacity
to comply with his marital obligations of marriage under Article 36 of the Family
Code.
Petitioner attributes the filing of the erroneous Complaint before the RTC to
her former counsels mistake or gross ignorance.19 But even said reason cannot save
petitioners Complaint from dismissal. It is settled in this jurisdiction that the client is
bound by the acts, even mistakes, of the counsel in the realm of procedural
technique.20 Although this rule is not a hard and fast one and admits of exceptions,
such as where the mistake of counsel is so gross, palpable and inexcusable as to
result in the violation of his clients substantive rights, 21 petitioner failed to convince
us that such exceptional circumstances exist herein.
Assuming for the sake of argument that we can treat the Complaint as one
for declaration of nullity based on Article 36 of the Family Code, we will still dismiss
the Complaint for lack of merit, consistent with the evidence presented by petitioner
during the trial.
Article 36 of the Family Code provides:
ART. 36. A marriage contracted by any party who, at the
time of the celebration, was psychologically incapacitated to
comply with the essential marital obligations of marriage, shall
likewise be void even if such incapacity becomes manifest only
after its solemnization.

In Santos v. Court of Appeals,22 the Court declared that psychological

incapacity under Article 36 of the Family Code is not meant to comprehend all
possible cases of psychoses. It should refer, rather, to no less than a mental (not
physical) incapacity that causes a party to be truly incognitive of the basic marital
covenants that concomitantly must be assumed and discharged by the parties to

15

19

16

20

17

21

18

22
53

the marriage. Psychological incapacity must be characterized by (a) gravity, (b)

juridical antecedence, and (c) incurability.23
The Court laid down the guidelines in resolving petitions for declaration of
nullity of marriage, based on Article 36 of the Family Code, in Republic v. Court of
Appeals,24 to wit:
(1) The burden of proof to show the nullity of the marriage belongs to the
plaintiff. Any doubt should be resolved in favor of the existence and
continuation of the marriage and against its dissolution and nullity. This is
rooted in the fact that both our Constitution and our laws cherish the
validity of marriage and unity of the family. Thus, our Constitution devotes
an entire Article on the Family, recognizing it as the foundation of the
nation. It decrees marriage as legally inviolable, thereby protecting it from
dissolution at the whim of the parties. Both the family and marriage are to
be protected by the state.
The Family Code echoes this constitutional edict on marriage and the family
and emphasizes their permanence, inviolability and solidarity.
(2) The root cause of the psychological incapacity must be a) medically or
clinically identified, b) alleged in the complaint, c) sufficiently proven by
experts and d) clearly explained in the decision. Article 36 of the Family
Code requires that the incapacity must be psychological not physical,
although its manifestations and/or symptoms may be physical. The
evidence must convince the court that the parties, or one of them, was
mentally or psychically ill to such an extent that the person could not have
known the obligations he was assuming, or knowing them, could not have
given valid assumption thereof. Although no example of such incapacity
need be given here so as not to limit the application of the provision under
the principle of ejusdem generis, nevertheless such root cause must be
identified as a psychological illness and its incapacitating nature fully
explained. Expert evidence may be given by qualified psychiatrists and
clinical psychologists.
(3) The incapacity must be proven to be existing at the time of the
celebration of the marriage. The evidence must show that the illness was
existing when the parties exchanged their I dos. The manifestation of the
illness need not be perceivable at such time, but the illness itself must have
attached at such moment, or prior thereto.
(4) Such incapacity must also be shown to be medically or clinically
permanent or incurable. Such incurability may be absolute or even relative

only in regard to the other spouse, not necessarily absolutely against

everyone of the same sex. Furthermore, such incapacity must be relevant
to the assumption of marriage obligations, not necessarily to those not
related to marriage, like the exercise of a profession or employment in a
job. Hence, a pediatrician may be effective in diagnosing illnesses of
children and prescribing medicine to cure them but may not be
psychologically capacitated to procreate, bear and raise his/her own
children as an essential obligation of marriage.
(5) Such illness must be grave enough to bring about the disability of the
party to assume the essential obligations of marriage. Thus, mild
characteriological peculiarities, mood changes, occasional emotional
outbursts cannot be accepted as root causes. The illness must be shown as
downright incapacity or inability, not a refusal, neglect or difficulty, much
less ill will. In other words, there is a natal or supervening disabling factor in
the person, an adverse integral element in the personality structure that
effectively incapacitates the person from really accepting and thereby
complying with the obligations essential to marriage.
(6) The essential marital obligations must be those embraced by Articles 68
up to 71 of the Family Code as regards the husband and wife as well as
Articles 220, 221 and 225 of the same Code in regard to parents and their
children. Such non-complied marital obligation(s) must also be stated in the
petition, proven by evidence and included in the text of the decision.
(7) Interpretations given by the National Appellate Matrimonial Tribunal of
the Catholic Church in the Philippines, while not controlling or decisive,
should be given great respect by our courts. x x x.

Being accordingly guided by the aforequoted pronouncements in Republic

v. Court of Appeals, we scrutinized the totality of evidence presented by petitioner
and found that the same was not enough to sustain a finding that respondent was
psychologically incapacitated.
Petitioners evidence, particularly her and her mothers testimonies, merely
established that respondent left petitioner soon after their wedding to work in Saudi
Arabia; that when respondent returned to the Philippines a year and a half later, he
directly went to live with his parents in San Jose, Occidental Mindoro, and not with
petitioner in Tondo, Manila; and that respondent also did not contact petitioner at all
since leaving for abroad. These testimonies though do not give us much insight into
respondents psychological state.

23

Tayags psychological report leaves much to be desired and hardly helps

petitioners cause. It must be noted that Tayag was not able to personally examine
respondent. Respondent did not appear for examination despite Tayags invitation. 25

24

25
54

Tayag, in evaluating respondents psychological state, had to rely on information

provided by petitioner. Hence, we expect Tayag to have been more prudent and
thorough in her evaluation of respondents psychological condition, since her source
of information, namely, petitioner, was hardly impartial.
Tayag concluded in her report that respondent was suffering from
Narcissistic Personality Disorder, traceable to the latters experiences during his
childhood. Yet, the report is totally bereft of the basis for the said conclusion. Tayag
did not particularly describe the pattern of behavior that showed that respondent
indeed had a Narcissistic Personality Disorder. Tayag likewise failed to explain how
such a personality disorder made respondent psychologically incapacitated to
perform his obligations as a husband. We emphasize that the burden falls upon
petitioner, not just to prove that respondent suffers from a psychological disorder,
but also that such psychological disorder renders him truly incognitive of the basic
marital covenants that concomitantly must be assumed and discharged by the
parties to the marriage.26 Psychological incapacity must be more than just a
difficulty, a refusal, or a neglect in the performance of some marital obligations.
In this instance, we have been allowed, through the evidence adduced, to
peek into petitioners marital life and, as a result, we perceive a simple case of a
married couple being apart too long, becoming strangers to each other, with the
husband falling out of love and distancing or detaching himself as much as possible
from his wife.
To be tired and give up on ones situation and on ones spouse are not
necessarily signs of psychological illness; neither can falling out of love be so
labeled. When these happen, the remedy for some is to cut the marital knot to allow
the parties to go their separate ways. This simple remedy, however, is not available
to us under our laws. Ours is a limited remedy that addresses only a very specific
situation a relationship where no marriage could have validly been concluded
because the parties; or where one of them, by reason of a grave and incurable
psychological illness existing when the marriage was celebrated, did not appreciate
the obligations of marital life and, thus, could not have validly entered into a
marriage.27
An unsatisfactory marriage is not a null and void marriage. As we stated in
Marcos v. Marcos28:
Article 36 of the Family Code, we stress, is not to be confused with a
divorce law that cuts the marital bond at the time the causes therefor

manifest themselves. It refers to a serious psychological illness afflicting a

party even before the celebration of the marriage. It is a malady so grave
and so permanent as to deprive one of awareness of the duties and
responsibilities of the matrimonial bond one is about to assume. x x x.

Resultantly, we have held in the past that mere irreconcilable differences

and conflicting personalities in no wise constitute psychological incapacity. 29
As a last-ditch effort to have her marriage to respondent declared null,
petitioner pleads abandonment by and sexual infidelity of respondent. In a
Manifestation and Motion30 dated 21 August 2007 filed before us, petitioner claims
that she was informed by one Jacinto Fordonez, who is residing in the same
barangay as respondent in Occidental Mindoro, that respondent is living-in with
another woman named Sally.
Sexual infidelity, per se, however, does not constitute psychological incapacity
within the contemplation of the Family Code. Again, petitioner must be able to
establish that respondents unfaithfulness is a manifestation of a disordered
personality, which makes him completely unable to discharge the essential
obligations of the marital state.31
It remains settled that the State has a high stake in the preservation of
marriage rooted in its recognition of the sanctity of married life and its mission to
protect and strengthen the family as a basic autonomous social institution. Hence,
any doubt should be resolved in favor of the existence and continuation of the
marriage and against its dissolution and nullity. 32 Presumption is always in favor of
the validity of marriage. Semper praesumitur pro matrimonio.33 In the case at bar,
petitioner failed to persuade us that respondents failure to communicate with
petitioner since leaving for Saudi Arabia to work, and to live with petitioner after
returning to the country, are grave psychological maladies that are keeping him
from knowing and/or complying with the essential obligations of marriage.

29
30

26

31

27

32

28

33
55

We are not downplaying petitioners frustration and misery in finding herself

shackled, so to speak, to a marriage that is no longer working. Regrettably, there are
situations like this one, where neither law nor society can provide the specific
answers to every individual problem.34
WHEREFORE, the Petition is DENIED. The 24 May 2006 Decision and 28
August 2008 Resolution of the Court of Appeals in CA-G.R. CV No. 84471, which
affirmed the 9 June 2004 Decision of the Regional Trial Court of Malolos City, Branch
85, dismissing petitioner Veronica Cabacungan Alcazars Complaint in Civil Case No.
664-M-2002, are AFFIRMED. No costs.
SO ORDERED.

34
56

G.R. No. L-27972

October 31, 1927
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
FELIPE SANTIAGO, defendant-appellant.
Fausto C. Cuizon for appellant.
Attorney-General Jaranilla for appellee.

circumstance must be as clearly proved as any other element of the crime (U. S. vs.
Binayoh, 35 Phil., 23, 31; Albert, Law on Crimes, pp. 88-89); and we cannot feel
certain, upon the proof before us, that the place of the commission of this offense
was remote enough from habitation or possible aid to make appropriate the
estimation of the aggravating circumstance referred to. 1awph!l.net
The judgment appealed from is in accordance with law, and will be affirmed. So
ordered, with costs against the appellant.

STREET, J.:
This appeal has been brought to reverse a judgment of the Court of First Instance of
the Province of Nueva Ecija, finding the appellant, Felipe Santiago, guilty of the
offense of rape and sentencing him to undergo imprisonment for fourteen years,
eight months and one day, reclusion temporal, with the accessories prescribed by
law, requiring him to endow the offended party, Felicita Masilang, in the amount of
P500, without subsidiary imprisonment in case of insolvency, requiring him also to
recognize and maintain, at P15 per month, the offspring, if there should be any, as
consequence of the rape, and requiring him further to pay the costs.
The deceased wife of the appellant was the aunt of Felicita Masilang, aged 18, who
was the injured girl in this case. She is therefore appellant's niece by marriage, and
she calls him uncle. Both are residents of the municipality of Gapan, in the Province
of Nueva Ecija. On November 23, 1926, the appellant asked Felicita, who was them
about 18 years of age, to accompany him across the river on some errand. The girl
agreed and they went over the river together into the municipality of San Leonardo.
After crossing the river, the appellant conducted the girl to a place about twenty
paces from the highway where tall grass and other growth hid them public view. In
this spot the appellant manifested a desire to have sexual intercourse with the girl,
but she refused to give her consent, and he finally notwithstanding her resistance,
accomplished his purpose by force and against her will.
After the deed had been done the appellant conducted the girl to the house of his
uncle, Agaton Santiago, who lived not far away. They arrived here about 11 a. m.,
and remained for several hours. In the course of the afternoon Agaton Santiago
brought in a protestant minister who went through the ceremony of marrying the
couple. After this was over the appellant gave the girl a few pesos and sent her
home. Her father happened to be away that night, but upon his return the next day,
she told him what had happened, a this prosecution for rape was started.
The trial court found that the offense of rape had been committed, as above stated,
and the marriage ceremony was a mere ruse by which the appellant hoped to
escape from the criminal consequences of his act. We concur in this view of the
case. The manner in which the appellant death with the girl after the marriage, as
well as before, shows that he had no bona fide intention of making her his wife, and
the ceremony cannot be considered binding on her because of duress. The marriage
was therefore void for lack of essential consent, and it supplies no impediment to
the prosecution of the wrongdoer.
The Attorney-General suggest that, in fixing the penalty, it would be proper to take
into account the aggravating circumstance that the offense was committed in an
uninhabited place. But the evidence fails to show beyond a reasonable doubt that
crime was committed en despoblado. The incident occurred only a few paces from
the Manila North Road, and it appears that there was an unoccupied house nearby to
which the girl was taken and where food was procured from Florentina Cuizon who
lived not far away. It is the constant doctrine of the court that an aggravating

57

G.R. No. L-12790

August 31, 1960
JOEL JIMENEZ, plaintiff-appellee,
vs.
REMEDIOS CAIZARES, defendant.
Republic of the Philippines, intervenor-appellant.
Acting Solicitor General Guillermo E. Torres and Solicitor Pacifico P. de Castro for
appellant.
Climaco, Ascarraga and Silang for appellee.
PADILLA, J.:
In a complaint filed on 7 June 1955 in the Court of First Instance of Zamboanga the
plaintiff Joel Jimenez prays for a decree annulling his marriage to the defendant
Remedios Caizares contracted on 3 August 1950 before a judge of the municipal
court of Zamboanga City, upon the ground that the office of her genitals or vagina
was to small to allow the penetration of a male organ or penis for copulation; that
the condition of her genitals as described above existed at the time of marriage and
continues to exist; and that for that reason he left the conjugal home two nights and
one day after they had been married. On 14 June 1955 the wife was summoned and
served a copy of the complaint. She did not file an answer. On 29 September 1956,
pursuant to the provisions of article 88 of the Civil Code, the Court directed the city
attorney of Zamboanga to inquire whether there was a collusion, to intervene for the
State to see that the evidence for the plaintiff is not a frame-up, concocted or
fabricated. On 17 December 1956 the Court entered an order requiring the
defendant to submit to a physical examination by a competent lady physician to
determine her physical capacity for copulation and to submit, within ten days from
receipt of the order, a medical certificate on the result thereof. On 14 March 1957
the defendant was granted additional five days from notice to comply with the order
of 17 December 1956 with warning that her failure to undergo medical examination
and submit the required doctor's certificate would be deemed lack of interest on her
part in the case and that judgment upon the evidence presented by her husband
would be rendered.
After hearing, at which the defendant was not present, on 11 April 1957 the Court
entered a decree annulling the marriage between the plaintiff and the defendant. On
26 April 1957 the city attorney filed a motion for reconsideration of the decree thus
entered, upon the ground, among others, that the defendant's impotency has not
been satisfactorily established as required by law; that she had not been physically
examined because she had refused to be examined; that instead of annulling the
marriage the Court should have punished her for contempt of court and compelled
her to undergo a physical examination and submit a medical certificate; and that the
decree sought to be reconsidered would open the door to married couples, who want
to end their marriage to collude or connive with each other by just alleging
impotency of one of them. He prayed that the complaint be dismissed or that the
wife be subjected to a physical examination. Pending resolution of his motion, the
city attorney timely appealed from the decree. On 13 May 1957 the motion for
reconsideration was denied.
The question to determine is whether the marriage in question may be annulled on
the strength only of the lone testimony of the husband who claimed and testified
that his wife was and is impotent. The latter did not answer the complaint, was
absent during the hearing, and refused to submit to a medical examination.

Marriage in this country is an institution in which the community is deeply

interested. The state has surrounded it with safeguards to maintain its purity,
continuity and permanence. The security and stability of the state are largely
dependent upon it. It is the interest of each and every member of the community to
prevent the bringing about of a condition that would shake its foundation and
ultimately lead to its destruction. The incidents of the status are governed by law,
not by will of the parties. The law specifically enumerates the legal grounds, that
must be proved to exist by indubitable evidence, to annul a marriage. In the case at
bar, the annulment of the marriage in question was decreed upon the sole testimony
of the husband who was expected to give testimony tending or aiming at securing
the annulment of his marriage he sought and seeks. Whether the wife is really
impotent cannot be deemed to have been satisfactorily established, becase from the
commencement of the proceedings until the entry of the decree she had abstained
from taking part therein. Although her refusal to be examined or failure to appear in
court show indifference on her part, yet from such attitude the presumption arising
out of the suppression of evidence could not arise or be inferred because women of
this country are by nature coy, bashful and shy and would not submit to a physical
examination unless compelled to by competent authority. This the Court may do
without doing violence to and infringing in this case is not self-incrimination. She is
not charged with any offense. She is not being compelled to be a witness against
herself.1 "Impotency being an abnormal condition should not be presumed. The
presumption is in favor of potency."2 The lone testimony of the husband that his wife
is physically incapable of sexual intercourse is insufficient to tear asunder the ties
that have bound them together as husband and wife.
The decree appealed from is set aside and the case remanded to the lower court for
further proceedings in accordance with this decision, without pronouncement as to
costs.
G.R. No. L-53880 March 17, 1994
ENRICO L. PACETE, CLARITA DE LA CONCEPCION, EMELDA C. PACETE,
EVELINA C. PACETE and EDUARDO C. PACETE, petitioners,
vs.
HON. GLICERIO V. CARRIAGA, JR. and CONCEPCION (CONCHITA) ALANIS
PACETE, respondents.
Juan G. Sibug and Rodolfo B. Quiachon for petitioners.
Julio F. Andres, Jr. for private respondent.
VITUG, J.:
The issue in this petition for certiorari is whether or not the Court of First Instance
(now Regional Trial Court) of Cotabato, Branch I, in Cotabato City, gravely abused its
discretion in denying petitioners' motion for extension of time to file their answer in
Civil Case No. 2518, in declaring petitioners in default and in rendering its decision
of 17 March 1980 which, among other things, decreed the legal separation of
petitioner Enrico L. Pacete and private respondent Concepcion Alanis and held to be
null and void ab initio the marriage of Enrico L. Pacete to Clarita de la Concepcion.
On 29 October 1979, Concepcion Alanis filed with the court below a complaint for
the declaration of nullity of the marriage between her erstwhile husband Enrico L.
Pacete and one Clarita de la Concepcion, as well as for legal separation (between
Alanis and Pacete), accounting and separation of property. In her complaint, she

58

averred that she was married to Pacete on 30 April 1938 before the Justice of the
Peace of Cotabato, Cotabato; that they had a child named Consuelo who was born
on 11 March 1943; that Pacete subsequently contracted (in 1948) a second marriage
with Clarita de la Concepcion in Kidapawan, North Cotabato; that she learned of
such marriage only on 01 August 1979; that during her marriage to Pacete, the
latter acquired vast property consisting of large tracts of land, fishponds and several
motor vehicles; that he fraudulently placed the several pieces of property either in
his name and Clarita or in the names of his children with Clarita and other
"dummies;" that Pacete ignored overtures for an amicable settlement; and that
reconciliation between her and Pacete was impossible since he evidently preferred
to continue living with Clarita.
The defendants were each served with summons on 15 November 1979. They filed a
motion for an extension of twenty (20) days from 30 November 1979 within which to
file an answer. The court granted the motion. On 18 December 1979, appearing
through a new counsel, the defendants filed a second motion for an extension of
another thirty (30) days from 20 December 1979. On 07 January 1980, the lower
court granted the motion but only for twenty (20) days to be counted from 20
December 1979 or until 09 January 1980. The Order of the court was mailed to
defendants' counsel on 11 January 1980. Likely still unaware of the court order, the
defendants, on 05 February 1980, again filed another motion (dated 18 January
1980) for an extension of "fifteen (15) days counted from the expiration of the 30day period previously sought" within which to file an answer. The following day, or
on 06 February 1980, the court denied this last motion on the ground that it was
"filed after the original period given . . . as first extension had expired." 1
The plaintiff thereupon filed a motion to declare the defendants in default, which the
court forthwith granted. The plaintiff was then directed to present her evidence. 2
The court received plaintiff's evidence during the hearings held on 15, 20, 21 and 22
February 1980.
On 17 March 1980, the court 3 promulgated the herein questioned decision,
disposing of the case, thus
WHEREFORE, order is hereby issued ordering:
1. The issuance of a Decree of Legal Separation of the marriage between, the
plaintiff, Concepcion (Conchita) Alanis Pacete and the herein defendants, Enrico L.
Pacete, in accordance with the Philippine laws and with consequences, as provided
for by our laws;
2. That the following properties are hereby declared as the conjugal properties of the
partnership of the plaintiff, Concepcion (Conchita) Alanis Pacete and the defendant,
Enrico L. Pacete, half and half, to wit:
1. The parcel of land covered by TCT No. V-815 which is a parcel of land
situated in the barrio of Langcong, Municipality of Matanog (previously of Parang),
province of Maguindanao (previously of Cotabato province) with an area of 45,265
square meters registered in the name of Enrico Pacete, Filipino, of legal age, married
to Conchita Alanis as shown in Exhibits "B" and "B-1" for the plaintiff.
2. A parcel of land covered by Transfer Certificate of Title No. T-20442, with
an area of 538 square meters and covered by Tax Declaration No. 2650 (74) in the
name of Enrico Pacete, situated in the Poblacion of Kidapawan, North Cotabato,
together with all its improvements, which parcel of land, as shown by Exhibits "K-1"

was acquired by way of absolute deed of sale executed by Amrosio Mondog on

January 14, 1965.
3. A parcel of land covered by Transfer Certificate of Title No. T-20424 and
covered by Tax Declaration No. 803 (74), with an area of 5.1670 hectares, more or
less, as shown by Exhibit "R", the same was registered in the name of Enrico Pacete
and the same was acquired by Enrico Pacete last February 17, 1967 from Ambag
Ampoy, as shown by Exhibit "R-1", situated at Musan, Kidapawan, North Cotabato.
4. A parcel of land situated at Lanao, Kidapawan, North Cotabato, with an
area of 5.0567 hectares, covered by Tax Declaration No. 4332 (74), as shown by
Exhibit "S", and registered in the name of Enrico Pacete.
5. A parcel of land covered by Transfer Certificate of Title No. T-9750,
situated at Lika, Mlang, North Cotabato, with an area of 4.9841 hectares and the
same is covered by Tax Declaration No. 803 (74) and registered in the name of
Enrico Pacete and which land was acquired by Enrico Pacete from Salvador Pacete
on September 24, 1962, as shown by Exhibit "Q-1".
6. A parcel of land covered by Transfer Certificate of Title No. T-9944, with
an area of 9.9566 and also covered by Tax Declaration No. 8608 (74) and registered
in the name of the defendant Enrico L. Pacete which Enrico L. Pacete acquired from
Sancho Balingcos last October 22, 1962, as shown by Exhibit "L-1" and which parcel
of land is situated at (Kialab), Kiab, Matalam, North Cotabato.
7. A parcel of land covered by Transfer Certificate of Title No. T-9227,
situated at Kiab, Matalam, North Cotabato, with an area of 12.04339 hectares, more
or less, and also covered by Tax Declaration No. 8607 (74) both in the name of the
defendant Enrico L. Pacete which he acquired last October 15, 1962 from Minda
Bernardino, as shown by Exhibit "M-1".
8. A parcel of land covered by Transfer Certificate of Title No. T-9228,
situated at Kiab, Matalam, North Cotabato, with an area of 10.8908 hectares,
registered in the name of Enrico Pacete and also covered by Tax Declaration No.
5781 (74) in the name of Enrico Pacete and which parcel of land he acquired last
September 25, 1962 from Conchita dela Torre, as shown by Exhibit "P-1".
9. A parcel of land covered by Transfer Certificate of Title No. T-10301,
situated at Linao, Matalam, North Cotabato, with an area of 7.2547 hectares,
registered in the name of Enrico Pacete and also covered by Tax Declaration No.
8716 (74) also in the name of Enrico Pacete which Enrico Pacete acquired from
Agustin Bijo last July 16, 1963, as shown by Exhibit "N-1".
10. A parcel of land covered by Transfer Certificate of Title No. 12728 in the
name of the defendant, Enrico L. Pacete, with an area of 10.9006 hectares, situated
at Linao, Matalam, North Cotabato and is also covered by Tax Declaration No. 5745
(74) in the name of Enrico Pacete, as shown on Exhibit "O" and which Enrico Pacete
acquired last December 31, 1963 from Eliseo Pugni, as shown on Exhibit "0-1".
3. Ordering the Cancellation of Original Certificate of Title No. P-34243 covering Lot
No. 1066, issued in the name of Evelina Pacete, situated at Kiab, Matalam, North
Cotabato, and ordering the registration of the same in the joint name of Concepcion
(Conchita) Alanis Pacete and Enrico L. Pacete as their conjugal property, with
address on the part of Concepcion (Conchita) Alanis Pacete at Parang, Maguindanao
and on the part of Enrico L. Pacete at Kidapawan, North Cotabato.

59

4. Ordering likewise the cancellation of Original Certificate of Title No. V-20101,

covering Lot No. 77, in the name of Eduardo C. Pacete, situated at New Lawaan,
Mlang, North Cotabato, and the issuance of a new Transfer Certificate of Title in the
joint name of (half and half) Concepcion (Conchita) Alanis Pacete and Enrico L.
Pacete.

certiorari is allowed when the default order is improperly declared, or even when it is
properly declared, where grave abuse of discretion attended such declaration. 6 In
these exceptional instances, the special civil action of certiorari to declare the nullity
of a judgment by default is available. 7 In the case at bench, the default order
unquestionably is not legally sanctioned. The Civil Code provides:

5. Ordering likewise the cancellation of Original Certificate of Title No. P-29890,

covering Lot 1068, situated at Kiab, Matalam, North Cotabato, with an area of
12.1031 hectares, in the name of Emelda C. Pacete and the issuance of a new
Transfer Certificate of Title in the joint name (half and half) of Concepcion (Conchita)
Alanis Pacete and Enrico L. Pacete; and declaring that the fishpond situated at Barrio
Tumanan, Bislig, Surigao Del Sur, with an area of 48 hectares and covered by
Fishpond Lease Agreement of Emelda C. Pacete, dated July 29, 1977 be cancelled
and in lieu thereof, the joint name of Concepcion (Conchita) Alanis Pacete and her
husband, Enrico L. Pacete, be registered as their joint property, including the 50
hectares fishpond situated in the same place, Barrio Timanan, Bislig, Surigao del Sur.

Art. 101. No decree of legal separation shall be promulgated upon a stipulation of

facts or by confession of judgment.
In case of non-appearance of the defendant, the court shall order the prosecuting
attorney to inquire whether or not a collusion between the parties exists. If there is
no collusion, the prosecuting attorney shall intervene for the State in order to take
care that the evidence for the plaintiff is not fabricated.
The provision has been taken from Article 30 of the California Civil Code, 8 and it is,
in substance, reproduced in Article 60 of the Family Code. 9
Article 101 reflects the public policy on marriages, and it should easily explain the
mandatory tenor of the law. In Brown v. Yambao, 10 the Court has observed:
The policy of Article 101 of the new Civil Code, calling for the intervention of the
state attorneys in case of uncontested proceedings for legal separation (and of
annulment of marriages, under Article 88), is to emphasize that marriage is more
than a mere contract; that it is a social institution in which the state is vitally
interested, so that its continuation or interruption can not be made to depend upon
the parties themselves (Civil Code, Article 52; Adong vs. Cheong Gee, 43 Phil. 43;
Ramirez v. Gmur, 42 Phil. 855; Goitia v. Campos, 35 Phil. 252). It is consonant with
this policy that the inquiry by the Fiscal should be allowed to focus upon any
relevant matter that may indicate whether the proceedings for separation or
annulment are fully justified or not.
Article 103 of the Civil Code, now Article 58 of the Family Code, further mandates
that an action for legal separation must "in no case be tried before six months shall
have elapsed since the filing of the petition," obviously in order to provide the
parties a "cooling-off" period. In this interim, the court should take steps toward
getting the parties to reconcile.
The significance of the above substantive provisions of the law is further
underscored by the inclusion of the following provision in Rule 18 of the Rules of
Court:

6. Ordering the following motor vehicles to be the joint properties of the conjugal
partnership of Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete, viz:
a. Motor vehicle with Plate No. T-RG-783; Make, Dodge; Motor No. T13720561; Chassis No. 83920393, and Type, Mcarrier;
b. Motor vehicle with Plate No. T-RG-784; Make, Dodge; Motor No. T214229547; Chassis No. 10D-1302-C; and Type, Mcarrier;
c. Motor vehicle with Plate No. J-PR-818; Make, Ford; Motor No. GRW116188; Chassis No. HOCC-GPW-1161-88-C; Type, Jeep;
d. Motor vehicle with Plate No. TH-5J-583; Make, Ford: Motor No. F70MU511111; Chassis No. HOCC-GPW-1161188-G; Type, Stake;
e. Motor vehicle with Plate No. TH-5J-584; Make, Hino; Motor No. ED30045758; Chassis No. KB222-22044; Type, Stake; and
f. Motor vehicle with Plate No. TH-5J-585; Make, Ford: Motor No. LTC-780-Dv;
Chassis No. 10F-13582-K; Type, Stake.
7. Ordering the defendant Enrico L. Pacete to pay the plaintiff the sum of P46,950.00
which is the share of the plaintiff in the unaccounted income of the ricemill and corn
sheller for three years from 1971 to 1973.
8. Ordering the defendant, Enrico L. Pacete, to reimburse the plaintiff the monetary
equipment of 30% of whether the plaintiff has recovered as attorney's fees;
9. Declaring the subsequent marriage between defendant Enrico L. Pacete and
Clarita de la Concepcion to be void ab initio; and
10. Ordering the defendants to pay the costs of this suit. 4
Hence, the instant special civil action of certiorari.
Under ordinary circumstances, the petition would have outrightly been dismissed,
for, as also pointed out by private respondents, the proper remedy of petitioners
should have instead been either to appeal from the judgment by default or to file a
petition for relief from judgment. 5 This rule, however, is not inflexible; a petition for

Sec. 6. No defaults in actions for annulments of marriage or for legal separation. If

the defendant in an action for annulment of marriage or for legal separation fails to
answer, the court shall order the prosecuting attorney to investigate whether or not
a collusion between the parties exists, and if there is no collusion, to intervene for
the State in order to see to it that the evidence submitted is not fabricated.
The special prescriptions on actions that can put the integrity of marriage to possible
jeopardy are impelled by no less than the State's interest in the marriage relation
and its avowed intention not to leave the matter within the exclusive domain and
the vagaries of the parties to alone dictate.
It is clear that the petitioner did, in fact, specifically pray for legal separation. 11 That
other remedies, whether principal or incidental, have likewise been sought in the
same action cannot dispense, nor excuse compliance, with any of the statutory
requirements aforequoted.

60

WHEREFORE, the petition for certiorari is hereby GRANTED and the proceedings
below, including the Decision of 17 March 1980 appealed from, are NULLIFIED and
SET ASIDE. No costs.
SO ORDERED

61

G.R. No. L-19671

November 29, 1965
PASTOR B. TENCHAVEZ, plaintiff-appellant,
vs.
VICENTA F. ESCAO, ET AL., defendants-appellees.
I. V. Binamira & F. B. Barria for plaintiff-appellant.
Jalandoni & Jarnir for defendants-appellees.
REYES, J.B.L., J.:
Direct appeal, on factual and legal questions, from the judgment of the Court of First
Instance of Cebu, in its Civil Case No. R-4177, denying the claim of the plaintiffappellant, Pastor B. Tenchavez, for legal separation and one million pesos in
damages against his wife and parents-in-law, the defendants-appellees, Vicente,
Mamerto and Mena,1 all surnamed "Escao," respectively.2
The facts, supported by the evidence of record, are the following:
Missing her late afternoon classes on 24 February 1948 in the University of San
Carlos, Cebu City, where she was then enrolled as a second year student of
commerce, Vicenta Escao, 27 years of age (scion of a well-to-do and socially
prominent Filipino family of Spanish ancestry and a "sheltered colegiala"),
exchanged marriage vows with Pastor Tenchavez, 32 years of age, an engineer, exarmy officer and of undistinguished stock, without the knowledge of her parents,
before a Catholic chaplain, Lt. Moises Lavares, in the house of one Juan Alburo in the
said city. The marriage was the culmination of a previous love affair and was duly
registered with the local civil register.
Vicenta's letters to Pastor, and his to her, before the marriage, indicate that the
couple were deeply in love. Together with a friend, Pacita Noel, their matchmaker
and go-between, they had planned out their marital future whereby Pacita would be
the governess of their first-born; they started saving money in a piggy bank. A few
weeks before their secret marriage, their engagement was broken; Vicenta returned
the engagement ring and accepted another suitor, Joseling Lao. Her love for Pastor
beckoned; she pleaded for his return, and they reconciled. This time they planned to
get married and then elope. To facilitate the elopement, Vicenta had brought some
of her clothes to the room of Pacita Noel in St. Mary's Hall, which was their usual
trysting place.
Although planned for the midnight following their marriage, the elopement did not,
however, materialize because when Vicente went back to her classes after the
marriage, her mother, who got wind of the intended nuptials, was already waiting for
her at the college. Vicenta was taken home where she admitted that she had
already married Pastor. Mamerto and Mena Escao were surprised, because Pastor
never asked for the hand of Vicente, and were disgusted because of the great
scandal that the clandestine marriage would provoke (t.s.n., vol. III, pp. 1105-06).
The following morning, the Escao spouses sought priestly advice. Father Reynes
suggested a recelebration to validate what he believed to be an invalid marriage,
from the standpoint of the Church, due to the lack of authority from the Archbishop
or the parish priest for the officiating chaplain to celebrate the marriage. The
recelebration did not take place, because on 26 February 1948 Mamerto Escao was
handed by a maid, whose name he claims he does not remember, a letter
purportedly coming from San Carlos college students and disclosing an amorous
relationship between Pastor Tenchavez and Pacita Noel; Vicenta translated the letter
to her father, and thereafter would not agree to a new marriage. Vicenta and Pastor
met that day in the house of Mrs. Pilar Mendezona. Thereafter, Vicenta continued

living with her parents while Pastor returned to his job in Manila. Her letter of 22
March 1948 (Exh. "M"), while still solicitous of her husband's welfare, was not as
endearing as her previous letters when their love was aflame.
Vicenta was bred in Catholic ways but is of a changeable disposition, and Pastor
knew it. She fondly accepted her being called a "jellyfish." She was not prevented by
her parents from communicating with Pastor (Exh. "1-Escao"), but her letters
became less frequent as the days passed. As of June, 1948 the newlyweds were
already estranged (Exh. "2-Escao"). Vicenta had gone to Jimenez, Misamis
Occidental, to escape from the scandal that her marriage stirred in Cebu society.
There, a lawyer filed for her a petition, drafted by then Senator Emmanuel Pelaez, to
annul her marriage. She did not sign the petition (Exh. "B-5"). The case was
dismissed without prejudice because of her non-appearance at the hearing (Exh. "B4").
On 24 June 1950, without informing her husband, she applied for a passport,
indicating in her application that she was single, that her purpose was to study, and
she was domiciled in Cebu City, and that she intended to return after two years. The
application was approved, and she left for the United States. On 22 August 1950,
she filed a verified complaint for divorce against the herein plaintiff in the Second
Judicial District Court of the State of Nevada in and for the County of Washoe, on the
ground of "extreme cruelty, entirely mental in character." On 21 October 1950, a
decree of divorce, "final and absolute", was issued in open court by the said tribunal.
In 1951 Mamerto and Mena Escao filed a petition with the Archbishop of Cebu to
annul their daughter's marriage to Pastor (Exh. "D"). On 10 September 1954, Vicenta
sought papal dispensation of her marriage (Exh. "D"-2).
On 13 September 1954, Vicenta married an American, Russell Leo Moran, in Nevada.
She now lives with him in California, and, by him, has begotten children. She
acquired American citizenship on 8 August 1958.
But on 30 July 1955, Tenchavez had initiated the proceedings at bar by a complaint
in the Court of First Instance of Cebu, and amended on 31 May 1956, against Vicenta
F. Escao, her parents, Mamerto and Mena Escao, whom he charged with having
dissuaded and discouraged Vicenta from joining her husband, and alienating her
affections, and against the Roman Catholic Church, for having, through its Diocesan
Tribunal, decreed the annulment of the marriage, and asked for legal separation and
one million pesos in damages. Vicenta claimed a valid divorce from plaintiff and an
equally valid marriage to her present husband, Russell Leo Moran; while her parents
denied that they had in any way influenced their daughter's acts, and
counterclaimed for moral damages.
The appealed judgment did not decree a legal separation, but freed the plaintiff from
supporting his wife and to acquire property to the exclusion of his wife. It allowed
the counterclaim of Mamerto Escao and Mena Escao for moral and exemplary
damages and attorney's fees against the plaintiff-appellant, to the extent of
P45,000.00, and plaintiff resorted directly to this Court.
The appellant ascribes, as errors of the trial court, the following:
1. In not declaring legal separation; in not holding defendant
Vicenta F. Escao liable for damages and in dismissing the
complaint;.
2. In not holding the defendant parents Mamerto Escano and the
heirs of Doa Mena Escao liable for damages;.

62

3 In holding the plaintiff liable for and requiring him to pay the
damages to the defendant parents on their counterclaims; and.
4. In dismissing the complaint and in denying the relief sought by
the plaintiff.
That on 24 February 1948 the plaintiff-appellant, Pastor Tenchavez, and the
defendant-appellee, Vicenta Escao, were validly married to each other, from the
standpoint of our civil law, is clearly established by the record before us. Both
parties were then above the age of majority, and otherwise qualified; and both
consented to the marriage, which was performed by a Catholic priest (army chaplain
Lavares) in the presence of competent witnesses. It is nowhere shown that said
priest was not duly authorized under civil law to solemnize marriages.
The chaplain's alleged lack of ecclesiastical authorization from the parish priest and
the Ordinary, as required by Canon law, is irrelevant in our civil law, not only
because of the separation of Church and State but also because Act 3613 of the
Philippine Legislature (which was the marriage law in force at the time) expressly
provided that
SEC. 1. Essential requisites. Essential requisites for marriage are
the legal capacity of the contracting parties and consent.
(Emphasis supplied)
The actual authority of the solemnizing officer was thus only a formal requirement,
and, therefore, not essential to give the marriage civil effects,3 and this is
emphasized by section 27 of said marriage act, which provided the following:
SEC. 27. Failure to comply with formal requirements. No marriage
shall be declared invalid because of the absence of one or several
of the formal requirements of this Act if, when it was performed,
the spouses or one of them believed in good faith that the person
who solemnized the marriage was actually empowered to do so,
and that the marriage was perfectly legal.
The good faith of all the parties to the marriage (and hence the validity of their
marriage) will be presumed until the contrary is positively proved (Lao vs. Dee Tim,
45 Phil. 739, 745; Francisco vs. Jason, 60 Phil. 442, 448). It is well to note here that
in the case at bar, doubts as to the authority of the solemnizing priest arose only
after the marriage, when Vicenta's parents consulted Father Reynes and the
archbishop of Cebu. Moreover, the very act of Vicenta in abandoning her original
action for annulment and subsequently suing for divorce implies an admission that
her marriage to plaintiff was valid and binding.
Defendant Vicenta Escao argues that when she contracted the marriage she was
under the undue influence of Pacita Noel, whom she charges to have been in
conspiracy with appellant Tenchavez. Even granting, for argument's sake, the truth
of that contention, and assuming that Vicenta's consent was vitiated by fraud and
undue influence, such vices did not render her marriage ab initio void, but merely
voidable, and the marriage remained valid until annulled by a competent civil court.
This was never done, and admittedly, Vicenta's suit for annulment in the Court of
First Instance of Misamis was dismissed for non-prosecution.
It is equally clear from the record that the valid marriage between Pastor Tenchavez
and Vicenta Escao remained subsisting and undissolved under Philippine law,
notwithstanding the decree of absolute divorce that the wife sought and obtained on
21 October 1950 from the Second Judicial District Court of Washoe County, State of
Nevada, on grounds of "extreme cruelty, entirely mental in character." At the time

the divorce decree was issued, Vicenta Escao, like her husband, was still a Filipino
citizen.4 She was then subject to Philippine law, and Article 15 of the Civil Code of
the Philippines (Rep. Act No. 386), already in force at the time, expressly provided:
Laws relating to family rights and duties or to the status, condition
and legal capacity of persons are binding upon the citizens of the
Philippines, even though living abroad.
The Civil Code of the Philippines, now in force, does not admit absolute divorce, quo
ad vinculo matrimonii; and in fact does not even use that term, to further emphasize
its restrictive policy on the matter, in contrast to the preceding legislation that
admitted absolute divorce on grounds of adultery of the wife or concubinage of the
husband (Act 2710). Instead of divorce, the present Civil Code only provides for legal
separation (Title IV, Book 1, Arts. 97 to 108), and, even in that case, it expressly
prescribes that "the marriage bonds shall not be severed" (Art. 106, subpar. 1).
For the Philippine courts to recognize and give recognition or effect to a foreign
decree of absolute divorce betiveen Filipino citizens could be a patent violation of
the declared public policy of the state, specially in view of the third paragraph of
Article 17 of the Civil Code that prescribes the following:
Prohibitive laws concerning persons, their acts or property, and
those which have for their object public order, policy and good
customs, shall not be rendered ineffective by laws or judgments
promulgated, or by determinations or conventions agreed upon in
a foreign country.
Even more, the grant of effectivity in this jurisdiction to such foreign divorce decrees
would, in effect, give rise to an irritating and scandalous discrimination in favor of
wealthy citizens, to the detriment of those members of our polity whose means do
not permit them to sojourn abroad and obtain absolute divorces outside the
Philippines.
From this point of view, it is irrelevant that appellant Pastor Tenchavez should have
appeared in the Nevada divorce court. Primarily because the policy of our law
cannot be nullified by acts of private parties (Civil Code,Art. 17, jam quot.); and
additionally, because the mere appearance of a non-resident consort cannot confer
jurisdiction where the court originally had none (Area vs. Javier, 95 Phil. 579).
From the preceding facts and considerations, there flows as a necessary
consequence that in this jurisdiction Vicenta Escao's divorce and second marriage
are not entitled to recognition as valid; for her previous union to plaintiff Tenchavez
must be declared to be existent and undissolved. It follows, likewise, that her refusal
to perform her wifely duties, and her denial of consortium and her desertion of her
husband constitute in law a wrong caused through her fault, for which the husband
is entitled to the corresponding indemnity (Civil Code, Art. 2176). Neither an
unsubstantiated charge of deceit nor an anonymous letter charging immorality
against the husband constitute, contrary to her claim, adequate excuse. Wherefore,
her marriage and cohabitation with Russell Leo Moran is technically "intercourse
with a person not her husband" from the standpoint of Philippine Law, and entitles
plaintiff-appellant Tenchavez to a decree of "legal separation under our law, on the
basis of adultery" (Revised Penal Code, Art. 333).
The foregoing conclusions as to the untoward effect of a marriage after an invalid
divorce are in accord with the previous doctrines and rulings of this court on the
subject, particularly those that were rendered under our laws prior to the approval of
the absolute divorce act (Act 2710 of the Philippine Legislature). As a matter of legal

63

history, our statutes did not recognize divorces a vinculo before 1917, when Act
2710 became effective; and the present Civil Code of the Philippines, in disregarding
absolute divorces, in effect merely reverted to the policies on the subject prevailing
before Act 2710. The rulings, therefore, under the Civil Code of 1889, prior to the Act
above-mentioned, are now, fully applicable. Of these, the decision in Ramirez vs.
Gmur, 42 Phil. 855, is of particular interest. Said this Court in that case:
As the divorce granted by the French Court must be ignored, it
results that the marriage of Dr. Mory and Leona Castro, celebrated
in London in 1905, could not legalize their relations; and the
circumstance that they afterwards passed for husband and wife in
Switzerland until her death is wholly without legal significance.
The claims of the very children to participate in the estate of
Samuel Bishop must therefore be rejected. The right to inherit is
limited to legitimate, legitimated and acknowledged natural
children. The children of adulterous relations are wholly excluded.
The word "descendants" as used in Article 941 of the Civil Code
cannot be interpreted to include illegitimates born of adulterous
relations. (Emphasis supplied)
Except for the fact that the successional rights of the children, begotten from
Vicenta's marriage to Leo Moran after the invalid divorce, are not involved in the
case at bar, the Gmur case is authority for the proposition that such union is
adulterous in this jurisdiction, and, therefore, justifies an action for legal separation
on the part of the innocent consort of the first marriage, that stands undissolved in
Philippine law. In not so declaring, the trial court committed error.
True it is that our ruling gives rise to anomalous situations where the status of a
person (whether divorced or not) would depend on the territory where the question
arises. Anomalies of this kind are not new in the Philippines, and the answer to them
was given in Barretto vs. Gonzales, 58 Phil. 667:
The hardship of the existing divorce laws in the Philippine Islands
are well known to the members of the Legislature. It is the duty of
the Courts to enforce the laws of divorce as written by Legislature
if they are constitutional. Courts have no right to say that such
laws are too strict or too liberal. (p. 72)
The appellant's first assignment of error is, therefore, sustained.
However, the plaintiff-appellant's charge that his wife's parents, Dr. Mamerto Escao
and his wife, the late Doa Mena Escao, alienated the affections of their daughter
and influenced her conduct toward her husband are not supported by credible
evidence. The testimony of Pastor Tenchavez about the Escao's animosity toward
him strikes us to be merely conjecture and exaggeration, and are belied by Pastor's
own letters written before this suit was begun (Exh. "2-Escao" and "Vicenta," Rec.
on App., pp. 270-274). In these letters he expressly apologized to the defendants for
"misjudging them" and for the "great unhappiness" caused by his "impulsive
blunders" and "sinful pride," "effrontery and audacity" [sic]. Plaintiff was admitted to
the Escao house to visit and court Vicenta, and the record shows nothing to prove
that he would not have been accepted to marry Vicente had he openly asked for her
hand, as good manners and breeding demanded. Even after learning of the
clandestine marriage, and despite their shock at such unexpected event, the parents
of Vicenta proposed and arranged that the marriage be recelebrated in strict
conformity with the canons of their religion upon advice that the previous one was

canonically defective. If no recelebration of the marriage ceremony was had it was

not due to defendants Mamerto Escao and his wife, but to the refusal of Vicenta to
proceed with it. That the spouses Escao did not seek to compel or induce their
daughter to assent to the recelebration but respected her decision, or that they
abided by her resolve, does not constitute in law an alienation of affections. Neither
does the fact that Vicenta's parents sent her money while she was in the United
States; for it was natural that they should not wish their daughter to live in penury
even if they did not concur in her decision to divorce Tenchavez (27 Am. Jur. 130132).
There is no evidence that the parents of Vicenta, out of improper motives, aided and
abetted her original suit for annulment, or her subsequent divorce; she appears to
have acted independently, and being of age, she was entitled to judge what was
best for her and ask that her decisions be respected. Her parents, in so doing,
certainly cannot be charged with alienation of affections in the absence of malice or
unworthy motives, which have not been shown, good faith being always presumed
until the contrary is proved.
SEC. 529. Liability of Parents, Guardians or Kin. The law
distinguishes between the right of a parent to interest himself in
the marital affairs of his child and the absence of rights in a
stranger to intermeddle in such affairs. However, such distinction
between the liability of parents and that of strangers is only in
regard to what will justify interference. A parent isliable for
alienation of affections resulting from his own malicious conduct,
as where he wrongfully entices his son or daughter to leave his or
her spouse, but he is not liable unless he acts maliciously, without
justification and from unworthy motives. He is not liable where he
acts and advises his child in good faith with respect to his child's
marital relations in the interest of his child as he sees it, the
marriage of his child not terminating his right and liberty to
interest himself in, and be extremely solicitous for, his child's
welfare and happiness, even where his conduct and advice
suggest or result in the separation of the spouses or the obtaining
of a divorce or annulment, or where he acts under mistake or
misinformation, or where his advice or interference are indiscreet
or unfortunate, although it has been held that the parent is liable
for consequences resulting from recklessness. He may in good
faith take his child into his home and afford him or her protection
and support, so long as he has not maliciously enticed his child
away, or does not maliciously entice or cause him or her to stay
away, from his or her spouse. This rule has more frequently been
applied in the case of advice given to a married daughter, but it is
equally applicable in the case of advice given to a son.
Plaintiff Tenchavez, in falsely charging Vicenta's aged parents with racial or social
discrimination and with having exerted efforts and pressured her to seek annulment
and divorce, unquestionably caused them unrest and anxiety, entitling them to
recover damages. While this suit may not have been impelled by actual malice, the
charges were certainly reckless in the face of the proven facts and circumstances.
Court actions are not established for parties to give vent to their prejudices or
spleen.

64

In the assessment of the moral damages recoverable by appellant Pastor Tenchavez

from defendant Vicente Escao, it is proper to take into account, against his patently
unreasonable claim for a million pesos in damages, that (a) the marriage was
celebrated in secret, and its failure was not characterized by publicity or undue
humiliation on appellant's part; (b) that the parties never lived together; and (c) that
there is evidence that appellant had originally agreed to the annulment of the
marriage, although such a promise was legally invalid, being against public policy
(cf. Art. 88, Civ. Code). While appellant is unable to remarry under our law, this fact
is a consequence of the indissoluble character of the union that appellant entered
into voluntarily and with open eyes rather than of her divorce and her second
marriage. All told, we are of the opinion that appellant should recover P25,000 only
by way of moral damages and attorney's fees.
With regard to the P45,000 damages awarded to the defendants, Dr. Mamerto
Escao and Mena Escao, by the court below, we opine that the same are excessive.
While the filing of this unfounded suit must have wounded said defendants' feelings
and caused them anxiety, the same could in no way have seriously injured their
reputation, or otherwise prejudiced them, lawsuits having become a common
occurrence in present society. What is important, and has been correctly established
in the decision of the court below, is that said defendants were not guilty of any
improper conduct in the whole deplorable affair. This Court, therefore, reduces the
damages awarded to P5,000 only.
Summing up, the Court rules:
(1) That a foreign divorce between Filipino citizens, sought and decreed after the
effectivity of the present Civil Code (Rep. Act 386), is not entitled to recognition as
valid in this jurisdiction; and neither is the marriage contracted with another party
by the divorced consort, subsequently to the foreign decree of divorce, entitled to
validity in the country;
(2) That the remarriage of divorced wife and her co-habitation with a person other
than the lawful husband entitle the latter to a decree of legal separation
conformably to Philippine law;
(3) That the desertion and securing of an invalid divorce decree by one consort
entitles the other to recover damages;
(4) That an action for alienation of affections against the parents of one consort does
not lie in the absence of proof of malice or unworthy motives on their part.
WHEREFORE, the decision under appeal is hereby modified as follows;
(1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a decree of legal
separation from defendant Vicenta F. Escao;
(2) Sentencing defendant-appellee Vicenta Escao to pay plaintiff-appellant
Tenchavez the amount of P25,000 for damages and attorneys' fees;
(3) Sentencing appellant Pastor Tenchavez to pay the appellee, Mamerto Escao and
the estate of his wife, the deceased Mena Escao, P5,000 by way of damages and
attorneys' fees.
Neither party to recover costs.
Bengzon, C.J., Bautista Angelo, Concepcion, Dizon, Regala, Makalintal, Bengzon, J.P.
and Zaldivar, JJ., concur.

65

ONG ENG KIAM a.k.a.

WILLIAM ONG,
Petitioner

- versus -

G.R. NO. 153206

Present:PANGANIBAN, C.J.
(Chairperson)
YNARES-SANTIAGO,
AUSTRIA-MARTINEZ,
CALLEJO, SR., and
CHICO-NAZARIO, JJ.

LUCITA G. ONG,

Promulgated:
Respondent.
October 23, 2006
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION
AUSTRIA-MARTINEZ, J.:

Before this Court is a Petition for Review seeking the reversal of the
Decision35 of the Court of Appeals (CA) in CA G.R. CV No. 59400 which affirmed in
toto the Decision of the Regional Trial Court (RTC) Branch 41, Dagupan City granting
the petition for legal separation filed by herein respondent, as well as the
Resolution36 of the CA dated April 26, 2002 which denied petitioners motion for
reconsideration.

Ong Eng Kiam, also known as William Ong (William) and Lucita G. Ong (Lucita) were
married on July 13, 1975 at the San Agustin Church in Manila. They have three
children: Kingston, Charleston, and Princeton who are now all of the age of
majority.37
On March 21, 1996, Lucita filed a Complaint for Legal Separation under Article 55
par. (1) of the Family Code38 before the Regional Trial Court (RTC) of Dagupan City,

35

Branch 41 alleging that her life with William was marked by physical violence,
threats, intimidation and grossly abusive conduct.39
Lucita claimed that: soon after three years of marriage, she and William quarreled
almost every day, with physical violence being inflicted upon her; William would
shout invectives at her like putang ina mo, gago, tanga, and he would slap her, kick
her, pull her hair, bang her head against concrete wall and throw at her whatever he
could reach with his hand; the causes of these fights were petty things regarding
their children or their business; William would also scold and beat the children at
different parts of their bodies using the buckle of his belt; whenever she tried to stop
William from hitting the children, he would turn his ire on her and box her; on
December 9, 1995, after she protested with Williams decision to allow their eldest
son Kingston to go to Bacolod, William slapped her and said, it is none of your
business; on December 14, 1995, she asked William to bring Kingston back from
Bacolod; a violent quarrel ensued and William hit her on her head, left cheek, eye,
stomach, and arms; when William hit her on the stomach and she bent down
because of the pain, he hit her on the head then pointed a gun at her and asked her
to leave the house; she then went to her sisters house in Binondo where she was
fetched by her other siblings and brought to their parents house in Dagupan; the
following day, she went to her parents doctor, Dr. Vicente Elinzano for treatment of
her injuries.40
William for his part denied that he ever inflicted physical harm on his wife,
used insulting language against her, or whipped the children with the buckle of his
belt. While he admits that he and Lucita quarreled on December 9, 1995, at their
house in Jose Abad Santos Avenue, Tondo, Manila, he claimed that he left the same,
stayed in their Greenhills condominium and only went back to their Tondo house to
work in their office below. In the afternoon of December 14, 1995, their
laundrywoman told him that Lucita left the house.41
On January 5, 1998, the RTC rendered its Decision decreeing legal
separation, thus:
WHEREFORE, premises considered, judgment is hereby rendered decreeing
the legal separation of plaintiff and defendant, with all the legal effects
attendant thereto, particularly the dissolution and liquidation of the
conjugal partnership properties, for which purpose the parties are hereby
ordered to submit a complete inventory of said properties so that the Court
can make a just and proper division, such division to be embodied in a
supplemental decision.

36

39

37

40

38

41
66

SO ORDERED.42
The RTC found that:
It is indubitable that plaintiff (Lucita) and defendant (William) had
their frequent quarrels and misunderstanding which made both of their
lives miserable and hellish. This is even admitted by the defendant when he
said that there was no day that he did not quarrel with his wife. Defendant
had regarded the plaintiff negligent in the performance of her wifely duties
and had blamed her for not reporting to him about the wrongdoings of their
children. (citations omitted)
These quarrels were always punctuated by acts of physical
violence, threats and intimidation by the defendant against the plaintiff and
on the children. In the process, insulting words and language were heaped
upon her. The plaintiff suffered and endured the mental and physical
anguish of these marital fights until December 14, 1995 when she had
reached the limits of her endurance. The more than twenty years of her
marriage could not have been put to waste by the plaintiff if the same had
been lived in an atmosphere of love, harmony and peace. Worst, their
children are also suffering. As very well stated in plaintiffs memorandum, it
would be unthinkable for her to throw away this twenty years of
relationship, abandon the comforts of her home and be separated from her
children, whom she loves, if there exists no cause, which is already beyond
her endurance.43
William appealed to the CA which affirmed in toto the RTC decision. In its
Decision dated October 8, 2001, the CA found that the testimonies for Lucita were
straightforward and credible and the ground for legal separation under Art. 55, par. 1
of the Family Code, i.e., physical violence and grossly abusive conduct directed
against Lucita, were adequately proven.44
As the CA explained:
The straightforward and candid testimonies of the witnesses were
uncontroverted and credible. Dr. Elinzanos testimony was able to show that
the [Lucita] suffered several injuries inflicted by [William]. It is clear that on
December 14, 1995, she sustained redness in her cheek, black eye on her
left eye, fist blow on the stomach, blood clot and a blackish discoloration on

both shoulders and a bump or bukol on her head. The presence of these
injuries was established by the testimonies of [Lucita] herself and her
sister, Linda Lim. The Memorandum/Medical Certificate also confirmed the
evidence presented and does not deviate from the doctors main testimony
--- that [Lucita] suffered physical violence on [sic] the hands of her
husband, caused by physical trauma, slapping of the cheek, boxing and fist
blows. The effect of the so-called alterations in the Memorandum/Medical
Certificate questioned by [William] does not depart from the main thrust of
the testimony of the said doctor.
Also, the testimony of [Lucita] herself consistently and constantly
established that [William] inflicted repeated physical violence upon her
during their marriage and that she had been subjected to grossly abusive
conduct when he constantly hurled invectives at her even in front of their
customers and employees, shouting words like, gaga, putang ina mo,
tanga, and you dont know anything.
These were further corroborated by several incidents narrated by
Linda Lim who lived in their conjugal home from 1989 to 1991. She saw her
sister after the December 14, 1995 incident when she (Lucita) was fetched
by the latter on the same date. She was a witness to the kind of
relationship her sister and [William] had during the three years she lived
with them. She observed that [William] has an explosive temper, easily
gets angry and becomes very violent. She cited several instances which
proved that William Ong indeed treated her wife shabbily and despicably, in
words and deeds.
xxx
That the physical violence and grossly abusive conduct were
brought to bear upon [Lucita] by [William] have been duly established by
[Lucita] and her witnesses. These incidents were not explained nor
controverted by [William], except by making a general denial thereof.
Consequently, as between an affirmative assertion and a general denial,
weight must be accorded to the affirmative assertion.

42

The grossly abusive conduct is also apparent in the instances

testified to by [Lucita] and her sister. The injurious invectives hurled at
[Lucita] and his treatment of her, in its entirety, in front of their employees
and friends, are enough to constitute grossly abusive conduct. The
aggregate behavior of [William] warrants legal separation under grossly
abusive conduct. x x x45

43

William filed a motion for reconsideration which was denied by the CA on April 26,
2002.46

44

45
67

Hence the present petition where William claims that:

I
THE COURT OF APPEALS COMMITTED AN ERROR OF LAW IN DISREGARDING
CLEAR EVIDENCE THAT THE PETITION FOR LEGAL SEPARATION WAS
INSTITUTED BY THE PRIVATE RESPONDENT FOR THE SOLE PURPOSE OF
REMOVING FROM PETITIONER THE CONTROL AND OWNERSHIP OF THEIR
CONJUGAL PROPERTIES AND TO TRANSFER THE SAME TO PRIVATE
RESPONDENTS FAMILY.
II
THE COURT OF APPEALS COMMITTED AN ERROR OF LAW IN DISREGARDING
CLEAR EVIDENCE REPUDIATING PRIVATE RESPONDENTS CLAIM OF
REPEATED PHYSICAL VIOLENCE AND GROSSLY ABUSIVE CONDUCT ON THE
PART OF PETITIONER.47

William argues that: the real motive of Lucita and her family in filing the case is to
wrest control and ownership of properties belonging to the conjugal partnership;
these properties, which include real properties in Hong Kong, Metro Manila, Baguio
and Dagupan, were acquired during the marriage through his (Williams) sole efforts;
the only parties who will benefit from a decree of legal separation are Lucitas
parents and siblings while such decree would condemn him as a violent and cruel
person, a wife-beater and child abuser, and will taint his reputation, especially
among the Filipino-Chinese community; substantial facts and circumstances have
been overlooked which warrant an exception to the general rule that factual findings
of the trial court will not be disturbed on appeal; the findings of the trial court that
he committed acts of repeated physical violence against Lucita and their children
were not sufficiently established; what took place were disagreements regarding the
manner of raising and disciplining the children particularly Charleston, Lucitas
favorite son; marriage being a social contract cannot be impaired by mere verbal
disagreements and the complaining party must adduce clear and convincing
evidence to justify legal separation; the CA erred in relying on the testimonies of
Lucita and her witnesses, her sister Linda Lim, and their parents doctor, Dr. Vicente
Elinzanzo, whose testimonies are tainted with relationship and fraud; in the 20 years
of their marriage, Lucita has not complained of any cruel behavior on the part of
William in relation to their marital and family life; William expressed his willingness
to receive respondent unconditionally however, it is Lucita who abandoned the
conjugal dwelling on December 14, 1995 and instituted the complaint below in order
to appropriate for herself and her relatives the conjugal properties; the Constitution

provides that marriage is an inviolable social institution and shall be protected by

the State, thus the rule is the preservation of the marital union and not its
infringement; only for grounds enumerated in Art. 55 of the Family Code, which
grounds should be clearly and convincingly proven, can the courts decree a legal
separation among the spouses.48

Respondent Lucita in her Comment, meanwhile, asserts that: the issues raised in the
present petition are factual; the findings of both lower courts rest on strong and
clear evidence borne by the records; this Court is not a trier of facts and factual
findings of the RTC when confirmed by the CA are final and conclusive and may not
be reviewed on appeal; the contention of William that Lucita filed the case for legal
separation in order to remove from William the control and ownership of their
conjugal properties and to transfer the same to Lucitas family is absurd; Lucita will
not just throw her marriage of 20 years and forego the companionship of William
and her children just to serve the interest of her family; Lucita left the conjugal
home because of the repeated physical violence and grossly abusive conduct of
petitioner.49

Petitioner filed a Reply, reasserting his claims in his petition, 50 as well as a

Memorandum where he averred for the first time that since respondent is guilty of
abandonment, the petition for legal separation should be denied following Art. 56,
par. (4) of the Family Code.51 Petitioner argues that since respondent herself has
given ground for legal separation by abandoning the family simply because of a
quarrel and refusing to return thereto unless the conjugal properties were placed in
the administration of petitioners in-laws, no decree of legal separation should be
issued in her favor.52

48
49
50

46

51

47

52
68

Respondent likewise filed a Memorandum reiterating her earlier

assertions.53

We resolve to deny the petition.

It is settled that questions of fact cannot be the subject of a petition for
review under Rule 45 of the Rules of Court. The rule finds more stringent application
where the CA upholds the findings of fact of the trial court. In such instance, this
Court is generally bound to adopt the facts as determined by the lower courts. 54

The only instances when this Court reviews findings of fact are:

(1) when the findings are grounded entirely on speculation, surmises or

conjectures; (2) when the inference made is manifestly mistaken, absurd or
impossible; (3) when there is grave abuse of discretion; (4) when the
judgment is based on a misapprehension of facts; (5) when the findings of
facts are conflicting; (6) when in making its findings the Court of Appeals
went beyond the issues of the case, or its findings are contrary to the
admissions of both the appellant and the appellee; (7) when the findings
are contrary to that of the trial court; (8) when the findings are conclusions
without citation of specific evidence on which they are based; (9) when the
facts set forth in the petition as well as in the petitioners main and reply
briefs are not disputed by the respondent; (10) when the findings of fact
are premised on the supposed absence of evidence and contradicted by the
evidence on record; and (11) when the Court of Appeals manifestly
overlooked certain relevant facts not disputed by the parties, which, if
properly considered, would justify a different conclusion.55

Indeed, this Court cannot review factual findings on appeal, especially

when they are borne out by the records or are based on substantial evidence. 56 In
this case, the findings of the RTC were affirmed by the CA and are adequately
supported by the records.
As correctly observed by the trial court, William himself admitted that there was no
day that he did not quarrel with his wife, which made his life miserable, and he
blames her for being negligent of her wifely duties and for not reporting to him the
wrongdoings of their children.57
Lucita and her sister, Linda Lim, also gave numerous accounts of the instances when
William displayed violent temper against Lucita and their children; such as: when
William threw a steel chair at Lucita;58 threw chairs at their children; 59 slapped Lucita
and utter insulting words at her;60 use the buckle of the belt in whipping the
children;61 pinned Lucita against the wall with his strong arms almost strangling her,
and smashed the flower vase and brick rocks and moldings leaving the bedroom in
disarray;62 shouted at Lucita and threw a directory at her, in front of Linda and the
employees of their business, because he could not find a draft letter on his table; 63
got mad at Charleston for cooking steak with vetchin prompting William to smash
the plate with steak and hit Charleston, then slapped Lucita and shouted at her
putang ina mo, gago, wala kang pakialam, tarantado when she sided with
Charleston;64 and the December 9 and December 14, 1995 incidents which forced
Lucita to leave the conjugal dwelling.65

56
57
58
59

As petitioner failed to show that the instant case falls under any of the exceptional
circumstances, the general rule applies.

60

53

61

54

62

55

63
69

Lucita also explained that the injuries she received on December 14, 1995, were not
the first. As she related before the trial court:
q.
You stated on cross examination that the injuries you
sustained on December 14, 1995 were the most serious?
a.

Unlike before I considered December 14, 1995 the very

serious because before it is only on the arm and black
eye, but on this December 14, I suffered bruises in all
parts of my body, sir.66

To these, all William and his witnesses, could offer are denials and attempts to
downplay the said incidents.67
As between the detailed accounts given for Lucita and the general denial for William,
the Court gives more weight to those of the former. The Court also gives a great
amount of consideration to the assessment of the trial court regarding the credibility
of witnesses as trial court judges enjoy the unique opportunity of observing the
deportment of witnesses on the stand, a vantage point denied appellate tribunals. 68
Indeed, it is settled that the assessment of the trial court of the credibility of
witnesses is entitled to great respect and weight having had the opportunity to
observe the conduct and demeanor of the witnesses while testifying. 69
In this case, the RTC noted that:
[William]s denial and that of his witnesses of the
imputation of physical violence committed by him could not be
given much credence by the Court. Since the office secretary
Ofelia Rosal and the family laundrywoman Rosalino Morco are
dependent upon defendant for their livelihood, their testimonies
may be tainted with bias and they could not be considered as

64
65

impartial and credible witnesses. So with Kingston Ong who lives

with defendant and depends upon him for support.70
Parenthetically, William claims that that the witnesses of Lucita are not credible
because of their relationship with her. We do not agree. Relationship alone is not
reason enough to discredit and label a witnesss testimony as biased and unworthy
of credence71 and a witness relationship to one of the parties does not automatically
affect the veracity of his or her testimony. 72 Considering the detailed and
straightforward testimonies given by Linda Lim and Dr. Vicente Elinzano, bolstered
by the credence accorded them by the trial court, the Court finds that their
testimonies are not tainted with bias.
William also posits that the real motive of Lucita in filing the case for legal
separation is in order for her side of the family to gain control of the conjugal
properties; that Lucita was willing to destroy his reputation by filing the legal
separation case just so her parents and her siblings could control the properties he
worked hard for. The Court finds such reasoning hard to believe. What benefit would
Lucita personally gain by pushing for her parents and siblings financial interests at
the expense of her marriage? What is more probable is that there truly exists a
ground for legal separation, a cause so strong, that Lucita had to seek redress from
the courts. As aptly stated by the RTC,

...it would be unthinkable for her to throw away this twenty years of relationship,
abandon the comforts of her home and be separated from her children whom she
loves, if there exists no cause, which is already beyond her endurance. 73

The claim of William that a decree of legal separation would taint his reputation and
label him as a wife-beater and child-abuser also does not elicit sympathy from this
Court. If there would be such a smear on his reputation then it would not be because
of Lucitas decision to seek relief from the courts, but because he gave Lucita reason
to go to court in the first place.
Also without merit is the argument of William that since Lucita has
abandoned the family, a decree of legal separation should not be granted, following

66

70

67

71

68

72

69

73
70

Art. 56, par. (4) of the Family Code which provides that legal separation shall be
denied when both parties have given ground for legal separation. The abandonment
referred to by the Family Code is abandonment without justifiable cause for more
than one year.74 As it was established that Lucita left William due to his abusive
conduct, such does not constitute abandonment contemplated by the said provision.
As a final note, we reiterate that our Constitution is committed to the policy of
strengthening the family as a basic social institution.75 The Constitution itself
however does not establish the parameters of state protection to marriage and the
family, as it remains the province of the legislature to define all legal aspects of
marriage and prescribe the strategy and the modalities to protect it and put into
operation the constitutional provisions that protect the same. 76 With the enactment
of the Family Code, this has been accomplished as it defines marriage and the
family, spells out the corresponding legal effects, imposes the limitations that affect
married and family life, as well as prescribes the grounds for declaration of nullity
and those for legal separation. 77 As Lucita has adequately proven the presence of a
ground for legal separation, the Court has no reason but to affirm the findings of the
RTC and the CA, and grant her the relief she is entitled to under the law.

WHEREFORE, the petition is DENIED for lack of merit.

Costs against petitioner.

SO ORDERED.

74
75
76
77
71

A.M. No. 1022-MJ May 7, 1976

REDENTOR ALBANO, complainant,
vs.
MUNICIPAL JUDGE PATROCINIO C. GAPUSAN of Dumalneg, Ilocos Norte,
respondent.
RESOLUTION
AQUINO, J.:
Redentor Albano in a verified complaint dated August 18, 1975 charged Municipal
Judge Patrocinio C. Gapusan of Dumalneg and Adams, Ilocos Norte (1) with
incompetence and Ignorance of the law for having prepared and notarized a
document providing for tile personal separation of husband and wife and the
extrajudicial liquidation of their conjugal partnership and (2) with having allegedly
influenced Judge Zacarias A. Crispin of the Court of First Instance of Ilocos Norte in
deciding two criminal cases.
Malpractice as a notary. In 1941 or five years before his appointment to the
bench, respondent Gapusan notarized a document for the personal separation of the
spouses Valentina Andres and Guillermo Maligta of Barrio 6, Vintar, Ilocos Norte and
for the extrajudicial liquidation of their conjugal partnership.
It was stipulated in that document that if either spouse should commit adultery or
concubinage, as the case may be, then the other should refrain from filing an action
against the other.
Judge Gapusan denied that he drafted the agreement. He explained that the
spouses had been separated for a long time when they signed the separation
agreement and that the wife had begotten children with her paramour. He said that
there was a stipulation in the agreement that the spouses would live together in
case of reconciliation. His belief was that the separation agreement forestalled the
occurrence of violent incidents between the spouses.
Albano in filing the malpractice charge is in effect asking this Court to take belated
disciplinary action against Judge Gapusan as a member of the bar or as a notary. (He
was admitted to the bar in 1937).
There is no question that the covenents contained in the said separation agreement
are contrary to law, morals and good customs (Biton vs. Momongan, 62 Phil. 7).
Those stipulations undermine the institutions of marriage and the family, "Marriage
is not a mere contract but an inviolable social institution". "The family is a basic
social institution which public policy cherishes and protects." (Arts. 52 and 216, Civil
Code). Marriage and the family are the bases of human society throughout the
civilized world (Adong vs. Cheong Seng Gee, 43 Phil. 43; Ramirez vs. Gmur, 42 Phil.
855, 864; Goitia vs. Campos Rueda, 35 Phil. 252, 254; Brown vs. Yambao, 102 Phil.
168).
To preserve the institutions of marriage and the family, the law considers as void
"any contract for personal separation between husband and wife" and "every
extrajudicial agreement, during the marriage, for the dissolution of the conjugal
partnership" (Art. 221, Civil Code). Before the new Civil Code, it was held that the
extrajudicial dissolution of the conjugal partnership without judicial sanction was
void (Quintana vs. Lerma, 24 Phil. 285; De Luna vs. Linatoc, 74 Phil. 15).
A notary should not facilitate the disintegration of a marriage and the family by
encouraging the separation of the spouses and extrajudically dissolving the conjugal
partnership. Notaries were severely censured by this Court for notarizing documents
which subvert the institutions of marriage and the family (Selanova vs. Mendoza,

Adm. Matter No. 804-CJ, May 19, 1975, 64 SCRA 69; Miranda vs. Fuentes, Adm. Case
No. 241, April 30, 1966, 16 SCRA 802; Biton vs. Momongan, supra,, Panganiban vs.
Borromeo, 58 Phil. 367; In re Santiago, 70 Phil. 66; Balinon vs. De Leon, 94 Phil.
277).
Respondent Gapusan as a member of the bar should be censured for having
notarized the void separation agreement already mentioned.
However, his notarization of that document does not warrant any disciplinary action
against him as a municipal judge (he was appointed in 1946 as justice of the peace)
especially considering that his appointment to the judiciary was screened by the
Commission on Appointments (See Ty vs. San Diego, Adm. Matter No. 169-J, June 29,
1972).
Alleged misconduct in influencing CFI Judge. Albano complains that Judge
Gapusan took advantage of his intimacy with Judge Crispin. He implies that by
reason of that intimacy Judge Crispin acquitted of frustrated murder the defendants
in Criminal Case No. 102-III, People vs. Freddie Gapusan Gamboa, et al. and
convicted Albano (complainant herein) of double frustrated murder with triple
attempted murder in Criminal Case No. 70-III.
Albano said that Freddie Gapusan, an accused in the first criminal case abovementioned and a complaining witness in the other case against Albano, is a relative
of Judge Gapusan. He revealed that after the acquittal decision was rendered by
Judge Crispin in Criminal Case No. 102 III, the relatives of the accused in that case
were saying that their relationship to Judge Gapusan, a friend of Judge Crispin,
proved to be "worthwhile and useful".
Judge Gapusan admitted in his answer that he is close to Judge Crispin because they
used to be members of the Municipal Judges League (when it was headed by Judge
Crispin) and because the latter used to be an Executive Judge (with supervision over
municipal judges). Respondent said that his association with Judge Crispin "was
purely official".
Judge Gapusan also admitted that Freddie Gapusan is his distant relative. He denied
that he influenced Judge Crispin in rendering his decisions in the two criminal cases.
It is manifest that Alliano's imputation that Judge Gapusan influenced Judge Crispin
is anchored on mere suspicion. If he has any evidence that Judge Crispin committed
any irregularity due to the alleged influence exerted by Judge Gapusan, then Albano
should have complained against Judge Crispin's actuations. He should riot vent his
ire on Judge Gapusan alone.
When an officer or court allows itself to enter upon the sea of suspicion, it permits
itself to enter upon a sea which has no shore, and the embarkation is without a
rudder or compass to control the direction or to ascertain its bearing." (Dy Keng vs.
Collector of Customs, 40 Phil, 118, 123).
A person has freedom to choose his friends and to hobnob with them. It is not a
crime nor unethical per se for a municipal judge to fraternize with a Judge of the
Court of First Instance. Whether the fraternization resulted in an unjust verdict
rendered by the Judge of the Court of First Instance due to the sinister or corruptive
influence of the municipal judge cannot be shown by mere inference, or conjecture.
It should be Substantiated by solid evidence. The unjustness of the decision should
be indubitably established.
The second charge should be dismissed for being speculative and unfair to Judge
Crispin. (He retired in September, 1975).

72

WHEREFORE, the respondent, as a member of the bar, is for having notarized the
above-mentioned void agreement. The second charge is dismissed.
SO ORDERED.
Fernando, Actg. C.J., Antonio and Martin, JJ, concur.
Concepcion, Jr., J., is on leave.
Separate Opinions
BARREDO, J., concurring:
Because offense was committed thirty-five years ago, otherwise, there would have
been a heavier sanction.

Separate Opinions
BARREDO, J., concurring:
Because offense was committed thirty-five years ago, otherwise, there would have
been a heavier sanction.

73

A.M. No. 1637 July 6, 1976

IN RE: ATTY. RUFILLO D. BUCANA, respondent.
RESOLUTION
ANTONIO, J.:
Acting upon the letter of Mrs. Angela Drilon Baltazar, Barangay Captain of Victories,
Dumangas, Iloilo, dated February 26, 1976, respondent Notary Public Rufillo D.
Bucana was required by this Court in its Resolution of March 23, 1976, to show cause
within ten (10) days from notice, why he should not be disciplinarily dealt with for
having notarized on November 10, 1975 at Dumangas, Iloilo an Agreement executed
by the spouses Gonzalo Baltazar and Luisa Sorongon wherein the afore-mentioned
spouses agreed therein that "in case anyone of them will remarry both parties offer
no objection and waive all civil and criminal actions against them" and that the
afore-mentioned Agreement was "entered into for the purpose of agreement to allow
each and everyone of them to remarry without objection or reservation ...", which
affidavit is contrary to law because it sanctions an illicit and immoral purpose.
On April 21, 1976, respondent . submitted his explanation, admitting that he
notarized the afore-mentioned document and that the Agreement is "immoral and
against public policy", but in mitigation he asserted that the document in question
was Prepared by his clerk, Lucia D. Doctolero without his previous knowledge; that
when said document was presented to him for signature after it was signed by the
parties, he vehemently refused to sign it and informed the parties that the
document was immoral; that he placed the said document on his table among his
files and more than a week later, he asked his clerk where the document was for the
purpose of destroying it, but to his surprise he found that the same was notarized by
him as per his file copies in the office; that he dispatched his clerk to get the copy
from the parties, but the afore-mentioned parties could not be found in their
respective residences; that he must have inadvertently notarized the same in view
of the numerous documents on his table and at that time he was emotionally
disturbed as his father (now deceased) was then seriously ill. The foregoing
contentions of respondent were corroborated substantially by the separate sworn
statements of his clerk, Lucia D. Doctolero and Angela Drilon Baltazar, both dated
April 20, 1976. 1
There is no question that the afore-mentioned Agreement is contrary to law, morals
and good customs. Marriage is an inviolable social institution, in the maintenance of
which in its purity the public is deeply interested for it is the foundation of the family
and of society without which there could be neither civilization nor progress. 2
The contract, in substance, purports to formulate an agreement between the
husband and the wife to take unto himself a concubine and the wife to live in
adulterous relations with another man, without opposition from either one, and what
is more, it induces each party to commit bigamy. 3 This is not only immoral but in
effect abets the commission of a crime. A notary public, by virtue of the nature of his
office, is required to exercise his duties with due care and with due regard to the
provisions of existing law.
As stressed by Justice Malcolm in Panganiban v. Borromeo, 4 "it is for the notary to
inform himself of the facts to which he intends to certify and to take part in no illegal
enterprise. The notary public is usually a person who has been admitted to the
practice of law, and as such, in the commingling of his duties notary and lawyer,
must be held responsible for both. We are led to hold that a member of the bar who

performs an act as a notary public of a disgraceful or immoral character may be held

to account by the court even to the extent of disbarment."
In the case at bar, respondent in effect pleads for clemency, claiming that the
notarization of the questioned document was due to his negligence. We find,
however, that the aforementioned document could not have been notarized if the
respondent had only exercised the requisite care required by law in the exercise of
his duties as notary public.
WHEREFORE, We hold that respondent Rufillo D. Bucana is guilty of malpractice and
is hereby suspended from the office of not try public for a period of six (6) months,
with the admonition that a repetition of the same or a similar act in the future will be
dealt with more severely.

74

G.R. No. 11263

November 2, 1916
ELOISA GOITIA DE LA CAMARA, plaintiff-appellant,
vs.
JOSE CAMPOS RUEDA, defendant-appellee.
Eduardo Gutierrez Repide and Felix Socias for appellant.
Sanz, Opisso and Luzuriaga for appellee.
TRENT, J.:
This is an action by the wife against her husband for support outside of the conjugal
domicile. From a judgment sustaining the defendant's demurrer upon the ground
that the facts alleged in the complaint do not state a cause of action, followed by an
order dismissing the case after the plaintiff declined to amend, the latter appealed.
It was urged in the first instance, and the court so held, that the defendant cannot
be compelled to support the plaintiff, except in his own house, unless it be by virtue
of a judicial decree granting her a divorce or separation from the defendant.
The parties were legally married in the city of Manila on January 7, 1915, and
immediately thereafter established their residence at 115 Calle San Marcelino,
where they lived together for about a month, when the plaintiff returned to the
home of her parents. The pertinent allegations of the complaint are as follows:
That the defendant, one month after he had contracted marriage
with the plaintiff, demanded of her that she perform unchaste and
lascivious acts on his genital organs; that the plaintiff spurned the
obscene demands of the defendant and refused to perform any act
other than legal and valid cohabitation; that the defendant, since
that date had continually on other successive dates, made similar
lewd and indecorous demands on his wife, the plaintiff, who
always spurned them, which just refusals of the plaintiff
exasperated the defendant and induce him to maltreat her by
word and deed and inflict injuries upon her lips, her face and
different parts of her body; and that, as the plaintiff was unable by
any means to induce the defendant to desist from his repugnant
desires and cease from maltreating her, she was obliged to leave
the conjugal abode and take refuge in the home of her parents.
Marriage in this jurisdiction is a contract entered into in the manner and with the
solemnities established by General Orders No. 68, in so far as its civil effects are
concerned requiring the consent of the parties. (Garcia vs. Montague, 12 Phil. Rep.,
480, citing article 1261 of Civil Code.) Upon the termination of the marriage
ceremony, a conjugal partnership is formed between the parties. (Sy Joc Lieng vs.
Encarnacion, 16 Phil. Rep., 137.) To this extent a marriage partakes of the nature of
an ordinary contract. But it is something more than a mere contract. It is a new
relation, the rights, duties, and obligations of which rest not upon the agreement of
the parties but upon the general law which defines and prescribes those rights,
duties, and obligations .Marriage is an institution, in the maintenance of which in its
purity the public is deeply interested. It is a relation for life and the parties cannot
terminate it at any shorter period by virtue of any contract they may make .The
reciprocal rights arising from this relation, so long as it continues, are such as the
law determines from time to time, and none other. When the legal existence of the
parties is merged into one by marriage, the new relation is regulated and controlled
by the state or government upon principles of public policy for the benefit of society

as well as the parties. And when the object of a marriage is defeated by rendering
its continuance intolerable to one of the parties and productive of no possible good
to the community, relief in some way should be obtainable. With these principles to
guide us, we will inquire into the status of the law touching and governing the
question under consideration.
Articles 42 to 107 of the Civil Code are not in force in the Philippine Islands
(Benedicto vs. De la Rama, 3 Phil .Rep., 34). Articles 44 to 78 of the Law of Civil
Marriage of 1870, in force in the Peninsula, were extended to the Philippine Islands
by royal decree on April 13, 1883 (Ebreo vs. Sichon, 4 Phil. Rep., 705). Articles 44,
45, and 48 of this law read:
ART. 44. The spouses are obliged to be faithful to each other and
to mutually assist each other.
ART. 45. The husband must live with and protect his wife. (The
second paragraph deals with the management of the wife's
property.)
ART. 48. The wife must obey her husband, live with him, and follow
him when he charges his domicile or residence.
Notwithstanding the provisions of the foregoing paragraph, the
court may for just cause relieve her from this duty when the
husband removes his residence to a foreign country.
And articles 143 and 149 of the Civil Code are as follows:
ART. 143. The following are obliged to support each other
reciprocally to the whole extent specified in the preceding article.
1. The consorts.
xxx
xxx
xxx
ART. (149) 49. The person obliged to give support may, at his
option, satisfy it, either by paying the pension that may be fixed or
by receiving and maintaining in his own home the person having
the right to the same.
Article 152 of the Civil Code gives the instances when the obligation to give support
shall cease. The failure of the wife to live with her husband is not one of them.
The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the
duties and obligations of the spouses. The spouses must be faithful to, assist, and
support each other. The husband must live with and protect his wife. The wife must
obey and live with her husband and follow him when he changes his domicile or
residence, except when he removes to a foreign country. But the husband who is
obliged to support his wife may, at his option, do so by paying her a fixed pension or
by receiving and maintaining her in his own home. May the husband, on account of
his conduct toward his wife, lose this option and be compelled to pay the pension? Is
the rule established by article 149 of the Civil Code absolute? The supreme court of
Spain in its decision of December 5, 1903, held:.
That in accordance with the ruling of the supreme court of Spain in
its decisions dated May 11, 1897, November 25, 1899, and July 5,
1901, the option which article 149 grants the person, obliged to
furnish subsistence, between paying the pension fixed or receiving
and keeping in his own house the party who is entitled to the
same, is not so absolute as to prevent cases being considered
wherein, either because this right would be opposed to the
exercise of a preferential right or because of the existence of some

75

justifiable cause morally opposed to the removal of the party

enjoying the maintenance, the right of selection must be
understood as being thereby restricted.
Whereas the only question discussed in the case which gave rise
to this appeal was whether there was any reason to prevent the
exercise of the option granted by article 149 of the Civil Code to
the person obliged to furnish subsistence, to receive and maintain
in his own house the one who is entitled to receive it; and
inasmuch as nothing has been alleged or discussed with regard to
the parental authority of Pedro Alcantara Calvo, which he ha not
exercised, and it having been set forth that the natural father
simply claims his child for the purpose of thus better attending to
her maintenance, no action having been taken by him toward
providing the support until, owing to such negligence, the mother
was obliged to demand it; it is seen that these circumstances,
together with the fact of the marriage of Pedro Alcantara, and that
it would be difficult for the mother to maintain relations with her
daughter, all constitute an impediment of such a nature as to
prevent the exercise of the option in the present case, without
prejudice to such decision as may be deemed proper with regard
to the other questions previously cited in respect to which no
opinion should be expressed at this time.
The above was quoted with approval in United States and De Jesus vs. Alvir (9 Phil.
Rep., 576), wherein the court held that the rule laid down in article 149 of the Civil
Code "is not absolute." but it is insisted that there existed a preexisting or
preferential right in each of these cases which was opposed to the removal of the
one entitled to support. It is true that in the first the person claiming the option was
the natural father of the child and had married a woman other than the child's
mother, and in the second the right to support had already been established by a
final judgment in a criminal case. Notwithstanding these facts the two cases clearly
established the proposition that the option given by article 149 of the Civil Code may
not be exercised in any and all cases.
Counsel for the defendant cite, in support of their contention, the decision of the
supreme court of Spain, dated November 3, 1905. In this case Don Berno Comas, as
a result of certain business reverses and in order no to prejudice his wife, conferred
upon her powers to administer and dispose of her property. When she left him he
gave her all the muniments of title, mortgage credits, notes, P10,000 in accounts
receivable, and the key to the safe in which he kept a large amount of jewels, thus
depriving himself of all his possessions and being reduced in consequence to want.
Subsequently he instituted this civil action against his wife, who was then living in
opulence, for support and the revocation of the powers heretofore granted in
reference to the administration and disposal of her property. In her answer the wife
claimed that the plaintiff (her husband) was not legally in a situation to claim
support and that the powers voluntarily conferred and accepted by her were
bilateral and could not be canceled by the plaintiff. From a judgment in favor of the
plaintiff the defendant wife appealed to the Audencia Territorial wherein, after due
trial, judgment was rendered in her favor dismissing the action upon the merits. The
plaintiff appealed to the supreme court and that high tribunal, in affirming the
judgment of the Audencia Territorial, said:

Considering that article 143, No. 1, of the Civil Code, providing

that the spouses are mutually obliged to provide each other with
support, cannot but be subordinate to the other provisions of said
Code which regulates the family organization and the duties of
spouses not legally separated, among which duties are those of
their living together and mutually helping each other, as provided
in article 56 of the aforementioned code; and taking this for
granted, the obligation of the spouse who has property to furnish
support to the one who has no property and is in need of it for
subsistence, is to be understood as limited to the case where, in
accordance with law, their separation has been decreed, either
temporarily or finally and this case, with respect to the husband,
cannot occur until a judgment of divorce is rendered, since, until
then, if he is culpable, he is not deprived of the management of
his wife's property and of the product of the other property
belonging to the conjugal partnership; and
Considering that, should the doctrine maintained in the appeal
prevail, it would allow married persons to disregard the marriage
bond and separate from each other of their own free will, thus
establishing, contrary to the legal provision contained in said
article 56 of the Civil Code, a legal status entirely incompatible
with the nature and effects of marriage in disregard of the duties
inherent therein and disturbing the unity of the family, in
opposition to what the law, in conformity with good morals, has
established; and.
Considering that, as the spouses D. Ramon Benso and Doa Adela
Galindo are not legally separated, it is their duty to live together
and afford each other help and support; and for this reason, it
cannot be held that the former has need of support from his wife
so that he may live apart from her without the conjugal abode
where it is his place to be, nor of her conferring power upon him to
dispose even of the fruits of her property in order therewith to pay
the matrimonial expenses and, consequently, those of his own
support without need of going to his wife; wherefore the judgment
appealed from, denying the petition of D. Ramon Benso for
support, has not violated the articles of the Civil Code and the
doctrine invoked in the assignments of error 1 and 5 of the appeal.
From a careful reading of the case just cited and quoted from it appears quite clearly
that the spouses separated voluntarily in accordance with an agreement previously
made. At least there are strong indications to this effect, for the court says, "should
the doctrine maintained in the appeal prevail, it would allow married persons to
disregard the marriage bond and separate from each other of their own free will." If
this be the true basis upon which the supreme court of Spain rested its decision,
then the doctrine therein enunciated would not be controlling in cases where one of
the spouses was compelled to leave the conjugal abode by the other or where the
husband voluntarily abandons such abode and the wife seeks to force him to furnish
support. That this is true appears from the decision of the same high tribunal, dated
October 16, 1903. In this case the wife brought an action for support against her
husband who had willfully and voluntarily abandoned the conjugal abode without

76

any cause whatever. The supreme court, reversing the judgment absolving the
defendant upon the ground that no action for divorce, etc., had been instituted, said:
In the case at bar, it has been proven that it was Don Teodoro
Exposito who left the conjugal abode, although he claims, without
however proving his contention, that the person responsible for
this situation was his wife, as she turned him out of the house.
From this state of affairs it results that it is the wife who is party
abandoned, the husband not having prosecuted any action to keep
her in his company and he therefore finds himself, as long as he
consents to the situation, under the ineluctable obligation to
support his wife in fulfillment of the natural duty sanctioned in
article 56 of the Code in relation with paragraph 1 of article 143. In
not so holding, the trial court, on the mistaken ground that for the
fulfillment of this duty the situation or relation of the spouses
should be regulated in the manner it indicates, has made the
errors of law assigned in the first three grounds alleged, because
the nature of the duty of affording mutual support is compatible
and enforcible in all situations, so long as the needy spouse does
not create any illicit situation of the court above
described.lawphil.net
If we are in error as to the doctrine enunciated by the supreme court of Spain in its
decision of November 3, 1905, and if the court did hold, as contended by counsel for
the defendant in the case under consideration, that neither spouse can be
compelled to support the other outside of the conjugal abode, unless it be by virtue
of a final judgment granting the injured one a divorce or separation from the other,
still such doctrine or holding would not necessarily control in this jurisdiction for the
reason that the substantive law is not in every particular the same here as it is in
Spain. As we have already stated, articles 42 to 107 of the Civil Code in force in the
Peninsula are not in force in the Philippine Islands. The law governing the duties and
obligations of husband and wife in this country are articles 44 to 78 of the Law of
Civil Marriage of 1870 .In Spain the complaining spouse has, under article 105 of the
Civil Code, various causes for divorce, such as adultery on the part of the wife in
every case and on the part of the husband when public scandal or disgrace of the
wife results therefrom; personal violence actually inflicted or grave insults: violence
exercised by the husband toward the wife in order to force her to change her
religion; the proposal of the husband to prostitute his wife; the attempts of the
husband or wife to corrupt their sons or to prostitute their daughters; the
connivance in their corruption or prostitution; and the condemnation of a spouse to
perpetual chains or hard labor, while in this jurisdiction the only ground for a divorce
is adultery. (Benedicto vs. De la Rama, 3 Phil .Rep., 34, 45.) This positive and
absolute doctrine was announced by this court in the case just cited after an
exhaustive examination of the entire subject. Although the case was appealed to the
Supreme Court of the United States and the judgment rendered by this court was
there reversed, the reversal did not affect in any way or weaken the doctrine in
reference to adultery being the only ground for a divorce. And since the decision was
promulgated by this court in that case in December, 1903, no change or
modification of the rule has been announced. It is, therefore, the well settled and
accepted doctrine in this jurisdiction.

But it is argued that to grant support in an independent suit is equivalent to granting

divorce or separation, as it necessitates a determination of the question whether the
wife has a good and sufficient cause for living separate from her husband; and,
consequently, if a court lacks power to decree a divorce, as in the instant case,
power to grant a separate maintenance must also be lacking. The weakness of this
argument lies in the assumption that the power to grant support in a separate action
is dependent upon a power to grant a divorce. That the one is not dependent upon
the other is apparent from the very nature of the marital obligations of the spouses.
The mere act of marriage creates an obligation on the part of the husband to
support his wife. This obligation is founded not so much on the express or implied
terms of the contract of marriage as on the natural and legal duty of the husband;
an obligation, the enforcement of which is of such vital concern to the state itself
that the laws will not permit him to terminate it by his own wrongful acts in driving
his wife to seek protection in the parental home. A judgment for separate
maintenance is not due and payable either as damages or as a penalty; nor is it a
debt in the strict legal sense of the term, but rather a judgment calling for the
performance of a duty made specific by the mandate of the sovereign. This is done
from necessity and with a view to preserve the public peace and the purity of the
wife; as where the husband makes so base demands upon his wife and indulges in
the habit of assaulting her. The pro tanto separation resulting from a decree for
separate support is not an impeachment of that public policy by which marriage is
regarded as so sacred and inviolable in its nature; it is merely a stronger policy
overruling a weaker one; and except in so far only as such separation is tolerated as
a means of preserving the public peace and morals may be considered, it does not
in any respect whatever impair the marriage contract or for any purpose place the
wife in the situation of a feme sole.
The foregoing are the grounds upon which our short opinion and order for judgment,
heretofore filed in this case, rest.
Torres, Johnson and Carson, JJ., concur.
Separate Opinions
MORELAND, J., concurring:
I based my vote in this case upon the ground that a husband cannot, by his own
wrongful acts, relieve himself from the duty to support his wife imposed by law; and
where a husband, by wrongful, illegal, and unbearable conduct, drives his wife from
the domicile fixed by him, he cannot take advantage of her departure to abrogate
the law applicable to the marital relation and repudiate his duties thereunder. In law
and for all purposes within its purview, the wife still remains an inmate of the
conjugal domicile; for I regard it as a principle of law universally recognized that
where a person by his wrongful and illegal acts creates a condition which under
ordinary circumstances would produce the loss of rights or status pertaining to
another, the law will, whenever necessary to protect fully the rights or status of the
person affected by such acts, regard the condition by such acts created as not
existing and will recur to and act upon the original situation of the parties to
determine their relative rights or the status of the person adversely affected.
I do not believe, therefore, that the case is properly conceived by defendant, when
the consideration thereof proceeds solely on the theory that the wife is outside the

77

domicile fixed by the husband. Under the facts alleged in the complainant the wife is
legally still within the conjugal domicile.
G.R. No. L-861
September 30, 1947
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ANGEL ZAPANTA Y
TUAZON, Defendant-Appellant.
Quijano, Rosete and Tizon for appellant.
Assistant Solicitor General Carmelino G. Alvendia and Solicitor Isidro C. Borromeo for
appellee.
BENGZON, J.:
At about midnight of September 15, 1945, the accused Angel Zapanta y Tuazon and
one Antero Gomez proceeded to the house of Policarpio Salazar on Francisco Street,
Tondo, Manila. Gomez removed the bamboo pole that barred the gate, and both
climbed the stairs, and knocked at the door of the dwelling. Answering a question of
Policarpio's wife, one of the nocturnal visitors falsely identifying as "Maning"
requested admittance pretending that he wanted "to tell something" to her husband.
As the door was opened, the two entered, pistol in hand, and then the accused
pointing his gun at Salazar asked, "Are you Totoy Kalabaw?" (nickname of Salazar).
The next instant Salazar and the accused were grappling for the possession of the
firearm. At this moment Gomez shot Salazar to death. Thereafter both assailants
hurriedly fled.chanroblesvirtualawlibrary chanrobles virtual law library
Police officers subsequently investigating the affair were handed the gun which had
fallen from the hands of the accused in the scuffle, he having forgotten to retrieve it
in his flight from the scene of the shooting.chanroblesvirtualawlibrary chanrobles
virtual law library
It was later discovered, upon investigation, that two days before the fatal incident
Antero Gomez, informing the accused that he had a quarrel with Salazar, asked for
assistance to kill him; and the accused agreed to help.chanroblesvirtualawlibrary
chanrobles virtual law library
Antero Gomez was not prosecuted because he died before the presentation of the
information, he having been reportedly killed in an affray with the
police.chanroblesvirtualawlibrary chanrobles virtual law library
Hailed into court for murder and confronted with the evidence of the People above
related, the defendant-appellant Angel Zapanta y Tuazon attempted to prove an alibi
with his lone testimony, which the trial judge discredited, obviously because, (1) it
was uncorroborated, (2) for all his youth, the prisoner was a confirmed lawbreaker
(See footnote) * and (3) because he was positively identified by an eyewitness, the
wife of the deceased, Ponciana Isidro, and her assertions were backed by the finding
of appellant's gun in the house and by the latter's confession, Exhibits C and
Q.chanroblesvirtualawlibrary chanrobles virtual law library
Appellant's counsel sensibly abstain from insisting on that defense; but in their
carefully prepared brief, they discuss several errors allegedly committed by His
Honor, to wit: (a) in holding there was conspiracy between appellant and Antero
Gomez; (b) in ruling that Zapanta was duly identified and (c) in considering the
latter's confession.chanroblesvirtualawlibrary chanrobles virtual law library
In criminal cases the identification of the culprit has always has been a paramount
question. Several instances of miscarriage of justice on that score are known in
judicial annals. Therefore, judges can not be overly cautious in analyzing evidence
on the point. On the other hand, where conditions of visibility are favorable and the
witness does not appear to be based against the man on the dock, his or her

assertions as to the identity of the malefactor should normally be accepted. And this
is more so where the witness is the victim or his near-relative as in this case,
because these usually strive to remember the factions of the assailants. In this
expediente no reasons exist to question the veracity of the bereaved widow, and it is
admitted that a kerosene lamp lighted the place. Hence, considering the confessions
of appellant in Exhibits C and Q, he should be deemed sufficiently
identified.chanroblesvirtualawlibrary chanrobles virtual law library
It is true that, as contended by counsel, the herein accused would not be responsible
for the murder, in the absence or conspiracy between him and Gomez (who actually
did the killing). But unluckily for him, such conspiracy was established by proof that
he had agreed to help Gomez assassinate Salazar, that both at midnight repaired to
the house, tricked the inmates into opening the door, and rushed inside with drawn
pistols, almost immediately eliminating the surprised "kalabaw". There was
concerted action, and the common homicidal intent was unmistakable, from which
solidary criminal responsibility arose. 1 chanrobles virtual law library
The record discloses that when in custody of the police, herein appellant made the
following admissions of guilt:
Two days before Totoy Kalabaw was shot by Antero Gomez, Antero told me that he
and Totoy Kalabaw had a quarrel. Antero told me to go with him and kill Totoy
Kalabaw and I agreed. Antero and I were both armed with .45 Cal. automatic pistols
when we proceeded to the house of Totoy Kalabaw. When we arrived at Totoy
Kalabaw's house, we found the gate closed and a bamboo bar was slung across the
gate. Antero picked up the bamboo bar and placed it near the gate. We then climbed
up the stairs of the house. Antero knocked several times on the door and after ten
(10) minutes a woman opened it. Antero drew his gun when he entered the door and
I followed him. We saw Totoy Kalabaw as soon as we entered standing beside the
woman who opened the door and when I went near him, he suddenly grabbed me by
the arms and tried to get my pistol at my waist. He tried to grab for my gun and was
able to wrest it away from me but at this time Antero shot him. We then run down
the house and fled, in our haste to get away I left my .45 automatic pistol at the
place where Totoy Kalabaw fell. (Exhibit C.)chanrobles virtual law library
I together with Antero Gomez went to the house of Totoy Kalabaw and when his wife
opened the door, I drew my pistol from my waist but before I was able to do so,
Totoy Kalabaw grappled with me and we wrestled for the possession of the pistol. I
was hit then by the pistol on my right index finger. Antero Gomez, seeing that Totoy
Kalabaw had the edge on me, shot at Totoy Kalabaw about two times as I remember.
(Exhibit Q.)
Contending that the trial judge erred in considering this confession, appellant's
counsel do not assert it was obtained through violence or fraud. They merely claim
that it contains improbabilities, and should therefore be disregarded. But mere
improbability should yield to actual facts told by the accused himself. If the
confession was voluntarily signed - there was evidence to that effect - the appellant
should not be heard to impugn the events therein described on grounds of
improbability, because he would thereby be saying: "that is my story, but do not
believe it because I lied."chanrobles virtual law library
The offense charged was murder. The facts proved established it, the destruction of
Salazar's life having been accomplished with evident premeditation (article 248,
Revised Penal Code). Although there are the aggravating circumstances of nighttime
and dwelling, the penalty imposable is reclusion perpetua only, in view of the

78

dissent of some members of this Court (article 47, Revised Penal Code.)
Consequently, the judgment of the court below is affirmed, it being in accordance
with the law for such cases made and provided.chanroblesvirtualawlibrary
chanrobles virtual law library
Moran, C.J., Paras, Feria, Pablo, Hilado, Briones, Padilla, and Tuason, JJ., concur.
Separate Opinionschanrobles virtual law library
PERFECTO, J., dissenting:chanrobles virtual law library
Appellant Angel Zapanta, 18 years old, is accused of the murder of Policarpio
Salazar which took place at 171 Francisco, Tondo, Manila on September 15,
1945.chanroblesvirtualawlibrary chanrobles virtual law library
Upon the alleged participation of appellant in said killing, the prosecution presented
the testimony of Ponciana Isidro, the widow, and Exhibits Q and C, the alleged
written confession of appellant.chanroblesvirtualawlibrary chanrobles virtual law
library
Ponciana testified that her husband and she were soundly asleep when they heard
somebody knocking at the door saying: "Totoy, open the door." She asked "Who is
there?" The answer was "It is Maning." Her husband told her not to open the door
right away. She told the man calling to wait for a few minutes. But he continued
knocking at the door saying: Open the door. I want to tell something to your
husband." She opened the door with her husband behind her. Two men with
revolvers went inside the house. One of them pointed the revolver at the stomach of
her husband who was then on her left. The intruder who was pointing his revolver at
her husband's stomach asked: "Are you Totoy Kalabaw?" When asked who was the
man pointing his revolver at her husband, the witness answered: "I saw their form
and as that was the first time I saw him, I did not know him nor his name, but I saw
the form of his figure." But at the time she was testifying she knew that it was Angel
Zapanta and his companion was Antero Gomez. Antero Gomez was standing as
guard with his revolver. The incident took place in the kitchen. "My husband took
hold of the wrists of Angel Zapanta, even twisting it, and took him to the kitchen
because he was fearing that Angel would fire shots and hit me and my two children."
Then Antero Gomez said: "Let him go, let him go." The witness pleaded for mercy,
kneeling before Antero Gomez and imploring him not to kill her husband, but Gomez
proceeded to approach the husband, and all of a sudden she heard followed by a
thud and then she saw her husband fall. The shots were fired by Antero Gomez. The
intruders went down to look for the gun of Zapanta. The gun was in the kitchen. The
husband sat on it. The gun was seen by the witness when the police authorities
arrived. The witness could not talk anymore with her husband because he was killed
instantly. When the witness screamed for help nobody came. The neighbors arrived
shortly after the police authorities had arrived. The incident took place at 11:40 in
the evening. On that night were no lights in the streets. The moon was bright. In the
house, there was a kerosene lamp. The struggle took place in the kitchen. On cross
examination, she testified that "nobody covered up my husband. What I mean was
that Antero Gomez came in first and struck his revolver at my husband's stomach."
She never saw the intruders before. That was the first time she saw them. On
September 16, 1945, she made a statement to the police authorities regarding the
incident but she did not mention the name of any of the intruders. When she made
the statement, "she knew their faces only not their names." The first time she heard
the name of Angel Zapanta was: "From the police officers, and in the newspapers,

because I was called to the fiscal's office." She learned about the name of Antero
Gomez since September, and of Angel Zapanta, about October. The only identifying
detail she gave to the police officers were the clothes worn by the appellant. She
was asked if she wanted to see Angel Zapanta in the municipal jail. "I told them I
preferred not to see him because it would only madden to see his face." So she did
not see him and she only saw him in court. On re-direct questions of the fiscal, she
emphasized fact that she saw Zapanta on the night of the incident and, for the
second time, when she was testifying in court. The witness did not notice whether or
not the assailants were wearing any hat. The witness identified the bamboo pole,
Exhibit B, as the one which served as a bar to close the gate of the
fence.chanroblesvirtualawlibrary chanrobles virtual law library
Fred G. Luchico, testifying for the prosecution, declared that he found no fingerprints
of Angel Zapanta on the bamboo pole Exhibit B, but he found fingerprints of Antero
Gomez thereon.chanroblesvirtualawlibrary chanrobles virtual law library
The testimony of the widow appears to us not convincing enough to show that she
was able to identify conclusively appellant Angel Zapanta. On the night of the
incident it was the first time she saw the two assailants. She alleges seeing for the
second time appellant Zapanta in the court room, at the time she was testifying. She
refused to have a look at him at the municipal jail. Was she so sure that she even
refused an opportunity to verify whether the person was in jail was really one of
those who assaulted their house? The incident took place at 11:30 at night. The
witness was soundly asleep at the time the appellant knocked at their door. Upon
entering the house, one of them stuck his revolver immediately at the stomach of
her husband. There was a struggle. The appellant and her husband went to the
kitchen, the other appellant followed and fired shots. Her husband fell down. The
assailants then went down. There was a kerosene lamp. But in view of the
suddenness of the attack and the brief moment in which the incident took place, it
seems to us improbable that the widow could have identified the two assailants by
their faces. Our doubt is emphasized by the fact that the widow had contradicted
herself on an important, essential and decisive detail. In her direct testimony she
testified that it was Angel Zapanta who stuck his revolver at the stomach of her
husband. On cross-examination she stated that it was Antero Gomez who stuck his
revolver at the stomach of her husband. No explanation has given on this
contradiction. Neither the prosecution nor the witness attempted to give any
explanation at all.chanroblesvirtualawlibrary chanrobles virtual law library
Detective Montilla testified upon the alleged confession of appellant Angel Zapanta,
Exhibit Q. He testified that he met Zapanta when the latter was turned over to him
by Lt. Pelgin and Lt. Lomosa then assigned to Precinct No. 4. On said occasion
appellant admitted before him having taken part in the killing of Policarpio Salazar.
The statement was made in writing and it is presented as Exhibit Q, carrying
signature of Angel Zapanta on pages 1 and 2. The statement Exhibit Q was prepared
by witness Montilla. The witness that appellant "can talk a little English," but in
another part of his testimony he said that appellant "could not understand English"
and later on, that appellant can write a little English, showing to said effect the
signatures of appellant in Exhibit Q. In Exhibit Q there is a statement as follows: "I
was hit then by the pistol on my right index finger."chanrobles virtual law library
In this regard, the transcript of the stenographic notes shows the following
unchallenged statement by counsel for the defense: "We only to make of record that
in spite of the confession, or rather the testimony of Detective Montilla that the right

79

index finger of Angel Zapanta was shot, said right index finger of Angel Zapanta
remained intact and there is not even any sign or trace of its having been hit by any
bullet, much less a .45 caliber bullet, even with the minutest ocular
inspection."chanrobles virtual law library
Detective Diosdado Lapia testified regarding Exhibit C, an alleged statement made
by Zapanta on October 11, 1945, at the office of the Homicide Squad, Bilibid Prison.
Lapia testified that Zapanta does not speak or write English, but the contents of
Exhibit C were translated into Tagalog and vice-versa by
Lapia.chanroblesvirtualawlibrary chanrobles virtual law library
Appellant that early on the morning of October 10, he was arrested by Lt. Pelgin with
the help of Lomosa and Santos. He was arrested while he was sleeping. The arrest
took place at Subic. He was brought to Caloocan, then to the CID at Bilibid Prison.
"Upon arriving at the CID, I was taken to a lie-detector room and there I was given
fist blows." The one who gave him fist blows was Moody, an American. When the
accused was taken to the lie-detector room, he was manacled with his hands behind
his back. The investigation was made by Pablo Montilla accompanied by two big
Americans. The investigation was made in English but the appellant could not speak
or understand English. The investigation was made through an interpreter. At the
time he signed Exhibit Q it was not read to him by Montilla in Tagalog. He did not ask
Montilla to explain his statement in Tagalog, because "I could not even talk because
the agent who approached me gave me blows." The contents were even covered
with a piece of paper. The only part shown to appellant when he signed it is the
space for his signature. Those who were investigating him imputed to him the
commission of the crime and insisted that he should admit his guilt. Those who were
insisting were all those who were investigating him. Appellant was investigated by
Detective Dado. He was investigated with manacled hands. Answering questions
propounded on cross-examination, appellant testified that Exhibit Q was only made
by the detectives. That part of the exhibit concerning the killing of Policarpio Salazar
is not true. He said the same regarding the killing of Policarpio Salazar appearing in
Exhibit C. Lt. Pelgin was holding appellant by the hair. He was the one who choked
him and after removing his handcuffs started giving him blows. They gave blows one
after the other. At one time, two or three of them gave him blows, later took him to
the bartolina where he was compelled to make an admission, and then took him
back to the lie-detector room to give him more blows. It did not occur to the
appellant to ask for hospitalization because he knew it would be impossible to talk
as they like a dog. Appellant was beaten because compelled him to admit the
murder imputed to him with which he had nothing to do. Finally he signed Exhibit Q
and C stating: "I signed them not with my own accord but because I was afraid to
receive more punishment; besides they assured me that this document had no
meaning at all." The contents of Exhibit C were not read to appellant. Appellant
signed Exhibit C for two persons: (1) Because of their assurance that Exhibit C had
no meaning at all, and (2) because he was afraid that refusal to sign it would mean
further punishment.chanroblesvirtualawlibrary chanrobles virtual law library
The prosecution did not give any evidence on rebuttal to refute the testimony of
appellant as to the torture and maltreatment to which he was subjected before he
signed Exhibit Q and C.chanroblesvirtualawlibrary chanrobles virtual law library
Under the circumstances, we are compelled to reject said Exhibits Q and C as
evidence against appellant. Not having been contradicted, appellant's statement
with regard to the circumstances under which he signed Exhibits Q and C should be

conclusive, and it appears from said statement that he did not sign the documents
voluntarily. Not only because appellant's testimony has not been contradicted, but
because there are so many cases in which police authorities resorted to third-degree
measures to extract confessions or admissions from detained persons, we are
constrained to believe appellant's testimony. The legislature itself has shown its lack
of confidence on confessions or admissions obtained by police officers from accused
under arrest or detention. This is shown by article 114 of the Revised Penal Code in
which the confession upon which an accused under said article may be convicted
must be one given in open court.chanroblesvirtualawlibrary chanrobles virtual law
library
The guilt of appellant not having been proved beyond all reasonable doubt, we vote
for the reversal of the appealed decision and the acquittal of appellant.

80

G.R. No. 79284 November 27, 1987

FROILAN C. GANDIONCO, petitioner,
vs.
HON. SENEN C. PEARANDA, as Presiding Judge of the Regional Trial Court
of Misamis Oriental, Branch 18, Cagayan de Oro City, and TERESITA S.
GANDIONCO, respondents.
PADILLA, J.:
A special civil action for certiorari, with application for injunction, to annul (1) the
Order of the respondent Judge, dated 10 December 1986, ordering petitioner to pay
support pendente lite to private respondent (his wife) and their child, and (2) the
Order of the same respondent Judge, dated 5 August 1987, denying petitioner's
motion to suspend hearings in the action for legal separation filed against him by
private respondent as well as his motion to inhibit respondent Judge from further
hearing and trying the case.
On 29 May 1986, private respondent, the legal wife of the petitioner, filed with the
Regional Trial Court of Misamis Oriental, 10th Judicial District, Branch 18, in Cagayan
de Oro City, presided over by respondent Judge, a complaint against petitioner for
legal separation, on the ground of concubinage, with a petition for support and
payment of damages. This case was docketed as Civil Case No. 10636. On 13
October 1986, private respondent also filed with the Municipal Trial Court, General
Santos City, a complaint against petitioner for concubinage, which was docketed on
23 October 1986 as Criminal Case No. 15437111. On 14 November 1986, application
for the provisional remedy of support pendente lite, pending a decision in the action
for legal separation, was filed by private respondent in the civil case for legal
separation. The respondent judge, as already stated, on 10 December 1986, ordered
The payment of support pendente lite.
In this recourse, petitioner contends that the civil action for legal separation and the
incidents consequent thereto, such as, application for support pendente lite, should
be suspended in view of the criminal case for concubinage filed against him the
private respondent. In support of his contention, petitioner cites Art. III. Sec. 3 of the
1985 Rules on Criminal Procedure, which states:
SEC. 3. Other Civil action arising from offenses.
Whenever the offended party shall have instituted the
civil action to enforce the civil liability arising from the
offense. as contemplated in the first Section 1 hereof, the
following rules shall be observed:
(a) After a criminal action has been commenced the
pending civil action arising from the same offense shall
be suspended, in whatever stage it may be found, until
final judgment in the criminal proceeding has been
rendered. . . .
The civil action for legal separation, grounded as it is on concubinage, it is
petitioner's position that such civil action arises from, or is inextricably tied to the
criminal action for concubinage, so that all proceedings related to legal separation
will have to be suspended to await conviction or acquittal for concubinage in the
criminal case. Authority for this position is this Court's decision in the case of
Jerusalem vs. Hon. Roberto Zurbano. 1
Petitioner's contention is not correct.

In Jerusalem, the Court's statement to the effect that suspension of an action for
legal separation would be proper if an allegation of concubinage is made therein,
relied solely on Sec. 1 of Rule 107 of the then provisions of the Rules of Court on
criminal procedure, to wit:
Sec. 1. Rules governing civil actions arising from
offenses.-Except as otherwise provided by law, the
following rules shall he observed:
(a) When a criminal action is instituted, the civil action for
recovery of civil liability arising from the offense charged
is impliedly instituted with the criminal action, unless the
offended party expressly waives the civil action or
reserves his right to institute it separately;
(b) Criminal and civil actions arising from the same
offense may be instituted separately, but after the
criminal action has been commenced the civil action can
not be instituted until final judgment has been rendered
in the criminal action;
(c) After a criminal action has been commenced, no civil
action arising from the same offense can be prosecuted
and the same shall be suspended in whatever stage it
may be found until final judgment in the criminal
proceeding has been rendered ... (Emphasis supplied)
The provisions last quoted did not clearly state, as the 1985 Rules do, that the civil
action to be suspended, with or upon the filing of a criminal action, is one which is
"to enforce the civil liability arising from the offense". In other words, in view of the
amendment under the 1985 Rules on Criminal Procedure, a civil action for legal
separation, based on concubinage, may proceed ahead of, or simultaneously with, a
criminal action for concubinage, because said civil action is not one "to enforce the
civil liability arising from the offense" even if both the civil and criminal actions arise
from or are related to the same offense. Such civil action is one intended to obtain
the right to live separately, with the legal consequences thereof, such as, the
dissolution of the conjugal partnership of gains, custody of offsprings, support, and
disqualification from inheriting from the innocent spouse, among others. As correctly
pointed out by the respondent Judge in his Order dated 5 August 1987:
The unreported case of JERUSALEM vs. Hon. Roberto Zurbano, Judge of CFI of
Antique, et al., L-11935, April 24, 1959 (105 Phil. 1277) is not controlling. It applied
paragraph C of Sec. 1, of then Rule 107 of the Rules of Court, which reads:
After a criminal action has been commenced, no civil action arising from
the same offense can be prosecuted and the same shall be suspended, in whatever
stage it may be found, until final judgment in the criminal proceeding has been
rendered. (Emphasis supplied)
The governing rule is now Sec. 3, Rule 111, 1985 Rules on Criminal Procedure which
refers to "civil actions to enforce the civil liability arising from the offense" as
contemplated in the first paragraph of Section 1 of Rule 111-which is a civil action
"for recovery of civil liability arising from the offense charged." Sec. 1, Rule 111,
(1985) is specific that it refers to civil action for the recovery of civil liability arising

81

from the offense charged. Whereas, the old Sec. 1 (c), Rule 107 simply referred to
"Civil action arising from the offense."
As earlier noted this action for legal separation is not to recover civil liability, in the
main, but is aimed at the conjugal rights of the spouses and their relations to each
other, within the contemplation of Articles 7 to 108, of the Civil Code." 2
Petitioner also argues that his conviction for concubinage will have to be first
secured before the action for legal separation can prosper or succeed, as the basis
of the action for legal separation is his alleged offense of concubinage.
Petitioner's assumption is erroneous.
A decree of legal separation, on the ground of concubinage, may be issued upon
proof by preponderance of evidence in the action for legal separation. 3 No criminal
proceeding or conviction is necessary. To this end, the doctrine in Francisco vs.
Tayao 4 has been modified, as that case was decided under Act. No. 2710, when
absolute divorce was then allowed and had for its grounds the same grounds for
legal separation under the New Civil Code, with the requirement, under such former
law, that the guilt of defendant spouses had to be established by final judgment in a
criminal action. That requirement has not been reproduced or adopted by the
framers of the present Civil Code, and the omission has been uniformly accepted as
a modification of the stringent rule in Francisco v. Tayao. 5
Petitioner's attempt to resist payment of support pendente lite to his wife must also
fail, as we find no proof of grave abuse of discretion on the part of the respondent
Judge in ordering the same. Support pendente lite, as a remedy, can be availed of in
an action for legal separation, and granted at the discretion of the judge. 6 If
petitioner finds the amount of support pendente lite ordered as too onerous, he can
always file a motion to modify or reduce the same. 7
Petitioner lastly seeks to have the respondent Judge disqualified from hearing the
case, as the grant of support pendente lite and the denial of the motion to suspend
hearings in the case, are taken by the petitioner as a disregard of applicable laws
and existing doctrines, thereby showing the respondent Judge's alleged manifest
partiality to private respondent.
Petitioner's contention is without merit. Divergence of opinions between a judge
hearing a case and a party's counsel, as to applicable laws and jurisprudence, is not
a sufficient ground to disqualify the judge from hearing the case, on the ground of
bias and manifest partiality. This is more so, in this case, where we find the judge's
disposition of petitioner's motions to be sound and well-taken.
WHEREFORE, the instant petition is hereby DISMISSED. Costs against petitioner.
SO ORDERED.
Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur.

82

[G.R. No. 116607. April 10, 1996] EMILIO TUASON, petitioner, vs. COURT OF
APPEALS and MARIA VICTORIA L. TUASON, respondents.
SYLLABUS
1.
REMEDIAL LAW; CIVIL PROCEDURE; RELIEF FROM JUDGMENT;
ALLOWED ONLY IN EXCEPTIONAL CASES WHERE THERE IS NO OTHER
AVAILABLE OR ADEQUATE REMEDY. - A petition for relief from judgment is
an equitable remedy; it is allowed only in exceptional cases where there is no
other available or adequate remedy. When a party has another remedy
available to him, which may be either a motion for new trial or appeal from an
adverse decision of the trial court, and he was not prevented by fraud,
accident, mistake or excusable negligence from filing such motion or taking
such appeal, he cannot avail himself of this petition. Indeed, relief will not be
granted to a party who seeks avoidance from the effects of the judgment when
the loss of the remedy at law was due to his own negligence; otherwise the
petition for relief can be used to revive the right to appeal which have been
lost thru inexcusable negligence.
2.
ID.; ID.; ID.; WHEN AVAILED MUST BE BASED ON THE GROUND OF
FRAUD, ACCIDENT, MISTAKE OR EXCUSABLE NEGLIGENCE AND THAT IT
IS SHOWN THAT PETITIONER HAS A GOOD, SUBSTANTIAL AND
MERITORIOUS DEFENSE OR CAUSE OF ACTION. - A petition for relief from
judgment is governed by Rule 38, Section 2 of the Revised Rules of Court. A
final and executory judgment or order of the Regional Trial Court may be set
aside on the ground of fraud, accident, mistake or excusable negligence. In
addition, the petitioner must assert facts showing that he has a good,
substantial and meritorious defense or cause of action. If the petition is
granted, the court shall proceed to hear and determine the case as if a timely
motion for new trial had been granted therein.
3.
ID.; ID.; ID.; NOTICES SENT TO COUNSEL OF RECORD, BINDING UPON
THE CLIENT. The failure of petitioners counsel to notify him on time of the
adverse judgment to enable him to appeal therefrom is negligence which is not
excusable. Notice sent to counsel of record is binding upon the client and the
neglect or failure of counsel to inform him of an adverse judgment resulting in
the loss of this right to appeal is not a ground for setting aside a judgment
valid and regular on its face.
4.
ID.; ID.; ID.; COUNSEL REQUIRED TO INFORM THE TRIAL COURT THE
REASON FOR HIS CLIENTS NON-APPEARANCE AT THE SCHEDULED
HEARINGS. - Similarly inexcusable was the failure of his former counsel to
inform the trial court of petitioners confinement and medical treatment as the
reason for his non-appearance at the scheduled hearings. Petitioner has not
given any reason why his former counsel, intentionally or unintentionally, did
not inform the court of this fact. This led the trial court to order the case
deemed submitted for decision on the basis of the evidence presented by the
private respondent alone. To compound the negligence of petitioners counsel,
the order of the trial court was never assailed via a motion for reconsideration.
5.
ID.; EVIDENCE; CREDIBILITY OF WITNESSES; FACTUAL FINDINGS OF
THE TRIAL COURT UPHELD ABSENT PROOF THAT THE WITNESSES
TESTIMONIES ARE CLEARLY AND MANIFESTLY ERRONEOUS. - Suffice it to
state that the finding of the trial court as to the existence or non-existence of
petitioners psychological incapacity at the time of the marriage is final and

binding on us. Petitioner has not sufficiently shown that the trial courts factual
findings and evaluation of the testimonies of private respondents witnesses
vis-a-vis petitioners defenses are clearly and manifestly erroneous.
6.
CONSTITUTIONAL LAW; BILL OF RIGHTS; PROCEDURAL DUE PROCESS;
NOT VIOLATED IF PETITIONER WAS GIVEN OPPORTUNITY TO BE HEARD.
- Petitioner cannot now claim that he was deprived of due process. He may
have lost his right to present evidence but he was not denied his day in court.
As the records show, petitioner, through counsel, actively participated in the
proceedings below. He filed his answer to the petition, cross-examined private
respondents witnesses and even submitted his opposition to private
respondents motion for dissolution of the conjugal partnership of gains.
7.
CIVIL LAW; FAMILY CODE; ANNULMENT, DECLARATION OF NULLITY AND
LEGAL SEPARATION; PROSECUTING ATTORNEY OR FISCAL MAY BE
ORDERED BY THE COURT TO INTERVENE ON BEHALF OF THE STATE TO
PREVENT COLLUSION BETWEEN THE PARTIES. - A grant of annulment of
marriage or legal separation by default is fraught with the danger of collusion.
Hence, in all cases for annulment, declaration of nullity of marriage and legal
separation, the prosecuting attorney or fiscal is ordered to appear on behalf of
the state for the purpose of preventing any collusion between the parties and
to take care that their evidence is not fabricated or suppressed. If the
defendant spouse fails to answer the complaint, the court cannot declare him
or her in default but instead, should order the prosecuting attorney to
determine if collusion exists between the parties. The prosecuting attorney or
fiscal may oppose the application for legal separation or annulment through
the presentation of his own evidence, if in his opinion, the proof adduced is
dubious and fabricated.
8.
ID.; ID.; ID.; NON-INTERFERENCE OF A PROSECUTING ATTORNEY IS
NOT FATAL TO THE VALIDITY OF THE PROCEEDINGS IN THE TRIAL
COURT IF PETITIONER VEHEMENTLY OPPOSED THE ANNULMENT OF
THEIR MARRIAGE IN THE SAID COURT. - The role of the prosecuting
attorney or fiscal in annulment of marriage and legal separation proceedings is
to determine whether collusion exists between the parties and to take care
that the evidence is not suppressed or fabricated. Petitioners vehement
opposition to the annulment proceedings negates the conclusion that collusion
existed between the parties. There is no allegation by the petitioner that
evidence was suppressed or fabricated by any of the parties. Under these
circumstances, we are convinced that the non-intervention of a prosecuting
attorney to assure lack of collusion between the contending parties is not fatal
to the validity of the proceedings in the trial court.
APPEARANCES OF COUNSEL
Seguion Reyna, Montecillo & Ongsiako for petitioner.
Salonga, Hernandez & Allado for private respondent.
DECISION
PUNO, J.:
This petition for review on certiorari seeks to annul and set aside the decision
dated July 29, 1994 of the Court of Appeals in CA-G.R. CV No. 37925 denying
petitioners appeal from an order of the Regional Trial Court, Branch 149, Makati in
Civil Case No. 3769.
This case arose from the following facts:

83

In 1989, private respondent Maria Victoria Lopez Tuason filed with the Regional
Trial Court, Branch 149, Makati a petition for annulment or declaration of nullity of
her marriage to petitioner Emilio R. Tuason. In her complaint, private respondent
alleged that she and petitioner were married on June 3, 1972 and from this union,
begot two children; that at the time of the marriage, petitioner was already
psychologically incapacitated to comply with his essential marital obligations which
became manifest afterward and resulted in violent fights between husband and wife;
that in one of their fights, petitioner inflicted physical injuries on private respondent
which impelled her to file a criminal case for physical injuries against him; that
petitioner used prohibited drugs, was apprehended by the authorities and sentenced
to a one-year suspended penalty and has not been rehabilitated; that petitioner was
a womanizer, and in 1984, he left the conjugal home and cohabited with three
women in succession, one of whom he presented to the public as his wife; that after
he left the conjugal dwelling, petitioner gave minimal support to the family and even
refused to pay for the tuition fees of their children compelling private respondent to
accept donations and dole-outs from her family and friends; that petitioner likewise
became a spendthrift and abused his administration of the conjugal partnership by
alienating some of their assets and incurring large obligations with banks, credit
card companies and other financial institutions, without private respondents
consent; that attempts at reconciliation were made but they all failed because of
petitioners refusal to reform. In addition to her prayer for annulment of marriage,
private respondent prayed for powers of administration to save the conjugal
properties from further dissipation.i
Petitioner answered denying the imputations against him. As affirmative
defense, he claimed that he and private respondent were a normal married couple
during the first ten years of their marriage and actually begot two children during
this period; that it was only in 1982 that they began to have serious personal
differences when his wife did not accord the respect and dignity due him as a
husband but treated him like a persona non grata; that due to the extreme
animosities between them, he temporarily left the conjugal home for a cooling-off
period in 1984; that it is private respondent who had been taking prohibited drugs
and had a serious affair with another man; that petitioners work as owner and
operator of a radio and television station exposed him to malicious gossip linking
him to various women in media and the entertainment world; and that since 1984,
he experienced financial reverses in his business and was compelled, with the
knowledge of his wife, to dispose of some of the conjugal shares in exclusive golf
and country clubs. Petitioner petitioned the court to allow him to return to the
conjugal home and continue his administration of the conjugal partnership.
After the issues were joined, trial commenced on March 30, 1990. Private
respondent presented four witnesses, namely, herself; Dr. Samuel Wiley, a Canon
Law expert and marriage counselor of both private respondent and petitioner; Ms.
Adelita Prieto, a close friend of the spouses, and Any. Jose F. Racela IV, private
respondents counsel. Private respondent likewise submitted documentary evidence
consisting of newspaper articles of her husbands relationship with other women, his
apprehension by the authorities for illegal possession of drugs; and copies of a prior
church annulment decree.ii The parties marriage was clerically annulled by the
Tribunal Metropolitanum Matrimoniale which was affirmed by the National Appellate
Matrimonial Tribunal in 1986.iii
During presentation of private respondents evidence, petitioner, on April 18,

1990, filed his Opposition to private respondents petition for appointment as

administratrix of the conjugal partnership of gains.
After private respondent rested her case, the trial court scheduled the
reception of petitioners evidence on May 11, 1990.
On May 8, 1990, two days before the scheduled hearing, a counsel for
petitioner moved for a postponement on the ground that the principal counsel was
out of the country and due to return on the first week of June. iv The court granted the
motion and reset the hearing to June 8, 1990.v
On June 8, 1990, petitioner failed to appear. On oral motion of private
respondent, the court declared petitioner to have waived his right to present
evidence and deemed the case submitted for decision on the basis of the evidence
presented.
On June 29, 1990, the trial court rendered judgment declaring the nullity of
private respondents marriage to petitioner and awarding custody of the children to
private respondent. The court ruled:
WHEREFORE, in view of the foregoing, the marriage contracted by
Ma. Victoria L. Tuason and Emilio R. Tuason on June 3, 1972 is declared
null and void oh initio on the ground of psychological incapacity on the
part of the defendant under Sec. 36 of the Family Code. Let herein
judgment of annulment be recorded in the registry of Mandaluyong, Metro
Manila where the marriage was contracted and in the registry of Makati,
Metro Manila where the marriage is annulled.
The custody of the two (2) legitimate children of the plaintiff and the defendant
is hereby awarded to the plaintiff.
The foregoing judgment is without prejudice to the application of the other
effects of annulment as provided for under Arts. 50 and 51 of the Family Code of the
Philippines.vi
Counsel for petitioner received a copy of this decision on August 24, 1990. No
appeal was taken from the decision.
On September 24, 1990, private respondent filed a Motion for Dissolution of
Conjugal Partnership of Gains and Adjudication to Plaintiff of the Conjugal
Properties.vii Petitioner opposed the motion on October 17, 1990viii
Also on the same day, October 17, 1990, petitioner, through new counsel, filed
with the trial court a petition for relief from judgment of the June 29, 1990 decision.
The trial court denied the petition on August 8, 1991.ix
Petitioner appealed before the Court of Appeals the order of the trial court
denying his petition for relief from judgment. On July 29, 1994, the Court of Appeals
dismissed the appeal and affirmed the order of the trial court. x
Hence this petition.
The threshold issue is whether a petition for relief from judgment is warranted
under the circumstances of the case.
We rule in the negative.
A petition for relief from judgment is governed by Rule 38, Section 2 of the
Revised Rules of Court which provides:
Section 2. Petition to Court of First Instance for relief from judgment
or other proceedings thereof. - When a judgment or order is entered, or
any other proceeding is taken, against a party in a court of first instance
through fraud, accident, mistake, or excusable negligence, he may file a
petition in such court and in the same cause praying that the judgment,

84

order or proceeding be set aside.

Under the rules, a final and executory judgment or order of the Regional Trial
Court may be set aside on the ground of fraud, accident, mistake or excusable
negligence. In addition, the petitioner must assert facts showing that he has a good,
substantial and meritorious defense or cause of action. xi If the petition is granted,
the court shall proceed to hear and determine the case as if a timely motion for new
trial had been granted therein.xii
In the case at bar, the decision annulling petitioners marriage to private
respondent had already become final and executory when petitioner failed to appeal
during the reglementary period. Petitioner however claims that the decision of the
trial court was null and void for violation of his right to due process. He contends he
was denied due process when, after failing to appear on two scheduled hearings, the
trial court deemed him to have waived his right to present evidence and rendered
judgment on the basis of the evidence for private respondent. Petitioner justifies his
absence at the hearings on the ground that he was then confined for medical and/or
rehabilitation reasons.xiii In his affidavit of merit before the trial court, he attached a
certification by Lt. Col. Plaridel F. Vidal, Director of the Narcotics Command, Drug
Rehabilitation Center which states that on March 27, 1990 petitioner was admitted
for treatment of drug dependency at the Drug Rehabilitation Center at Camp Bagong
Diwa, Bicutan, Taguig, Metro Manila of the Philippine Constabulary-Integrated
National Police.xiv The records, however, show that the former counsel of petitioner
did not inform the trial court of this confinement. And when the court rendered its
decision, the same counsel was out of the country for which reason the decision
became final and executory as no appeal was taken therefrom.xv
The failure of petitioners counsel to notify him on time of the adverse judgment
to enable him to appeal therefrom is negligence which is not excusable. Notice sent
to counsel of record is binding upon the client and the neglect or failure of counsel to
inform him of an adverse judgment resulting in the loss of his right to appeal is not a
ground for setting aside a judgment valid and regular on its face.xvi
Similarly inexcusable was the failure of his former counsel to inform the trial
court of petitioners confinement and medical treatment as the reason for his nonappearance at the scheduled hearings. Petitioner has not given any reason why his
former counsel, intentionally or unintentionally, did not inform the court of this fact.
This led the trial court to order the case deemed submitted for decision on the basis
of the evidence presented by the private respondent alone. To compound the
negligence of petitioners counsel, the order of the trial court was never assailed via
a motion for reconsideration.
Clearly, petitioner cannot now claim that he was deprived of due process. He
may have lost his right to present evidence but he was not denied his day in court.
As the records show, petitioner, through counsel, actively participated in the
proceedings below. He filed his answer to the petition, cross-examined private
respondents witnesses and even submitted his opposition to private respondents
motion for dissolution of the conjugal partnership of gains. xvii
A petition for relief from judgment is an equitable remedy; it is allowed only in
exceptional cases where there is no other available or adequate remedy. When a
party has another remedy available to him, which may be either a motion for new
trial or appeal from an adverse decision of the trial court, and he was not prevented
by fraud, accident, mistake or excusable negligence from filing such motion or
taking such appeal, he cannot avail himself of this petition. xviii Indeed, relief will not

be granted to a party who seeks avoidance from the effects of the judgment when
the loss of the remedy at law was due to his own negligence; otherwise the petition
for relief can be used to revive the right to appeal which had been lost thru
inexcusable negligence.xix
Petitioner also insists that he has a valid and meritorious defense. He cites the
Family Code which provides that in actions for annulment of marriage or legal
separation, the prosecuting officer should intervene for the state because the law
looks with disfavor upon the haphazard declaration of annulment of marriages by
default. He contends that when he failed to appear at the scheduled hearings, the
trial court should have ordered the prosecuting officer to intervene for the state and
inquire as to the reason for his non-appearance. xx
Articles 48 and 60 of the Family Code read as follows:
Art. 48. In all cases of annulment or declaration of absolute nullity of
marriage, the Court shall order the prosecution attorney or fiscal assigned
to it to appear on behalf of the State to take steps to prevent collusion
between the parties and to take care that evidence is not fabricated or
suppressed.
In the cases referred to in the preceding paragraph, no judgment
shall be based upon a stipulation of facts or confession of judgment.
x x xx x x
xxx
Art. 60. No decree of legal separation shall be based upon a
stipulation of facts or a confession of judgment.
In any case, the Court shall order the prosecuting attorney or fiscal assigned to
it to take steps to prevent collusion between the parties and to take care that the
evidence is not fabricated or suppressed.xxi
A grant of annulment of marriage or legal separation by default is fraught with
the danger of collusion. xxii Hence, in all cases for annulment, declaration of nullity of
marriage and legal separation, the prosecuting attorney or fiscal is ordered to
appear on behalf of the state for the purpose of preventing any collusion between
the parties and to take care that their evidence is not fabricated or suppressed. If
the defendant spouse fails to answer the complaint, the court cannot declare him or
her in default but instead, should order the prosecuting attorney to determine if
collusion exists between the parties.xxiii The prosecuting attorney or fiscal may
oppose the application for legal separation or annulment through the presentation of
his own evidence, if in his opinion, the proof adduced is dubious and fabricated. xxiv
Our Constitution is committed to the policy of strengthening the family as a basic
social institution.xxv Our family law is based on the policy that marriage is not a mere
contract, but a social institution in which the state is vitally interested. The state can
find no stronger anchor than on good, solid and happy families. The break up of
families weakens our social and moral fabric and, hence, their preservation is not
the concern alone of the family members.
The facts in the case at bar do not call for the strict application of Articles 48
and 60 of the Family Code. For one, petitioner was not declared in default by the trial
court for failure to answer. Petitioner filed his answer to the complaint and contested
the cause of action alleged by private respondent. He actively participated in the
proceedings below by filing several pleadings and cross-examining the witnesses of
private respondent. It is crystal clear that every stage of the litigation was
characterized by a no-holds barred contest and not by collusion.
The role of the prosecuting attorney or fiscal in annulment of marriage and

85

legal separation proceedings is to determine whether collusion exists between the

parties and to take care that the evidence is not suppressed or fabricated.
Petitioners vehement opposition to the annulment proceedings negates the
conclusion that collusion existed between the parties. There is no allegation by the
petitioner that evidence was suppressed or fabricated by any of the parties. Under
these circumstances, we are convinced that the non-intervention of a prosecuting
attorney to assure lack of collusion between the contending parties is not fatal to the
validity of the proceedings in the trial court.
Petitioner also refutes the testimonies of private respondents witnesses,
particularly Dr. Samuel Wiley and Ms. Adelita Prieto, as biased, incredible and
hearsay. Petitioner alleges that if he were able to present his evidence, he could
have testified that he was not psychologically incapacitated at the time of the
marriage as indicated by the fact that during their first ten years, he and private
respondent lived together with their children as one normal and happy family, that
he continued supporting his family even after he left the conjugal dwelling and that
his work as owner and operator of a radio and television corporation places him in
the public eye and makes him a good subject for malicious gossip linking him with
various women. These facts, according to petitioner, should disprove the ground for
annulment of his marriage to petitioner.
Suffice it to state that the finding of the trial court as to the existence or nonexistence of petitioners psychological incapacity at the time of the marriage is final
and binding on us.xxvi Petitioner has not sufficiently shown that the trial courts factual
findings and evaluation of the testimonies of private respondents witnesses vis-a-vis
petitioners defenses are clearly and manifestly erroneous.xxvii
IN VIEW WHEREOF, the petition is denied and the decision dated July 29,
1994 of the Court of Appeals in CA-G.R. CV No. 37925 is affirmed.
SO ORDERED.

86

[G.R. No. 132592. January 23, 2002]

AIDA P. BAEZ, petitioner, vs. GABRIEL B. BAEZ, respondent.
[G.R. No. 133628. January 23, 2002]
AIDA P. BAEZ, petitioner, vs. GABRIEL B. BAEZ, respondent.
DECISION
QUISUMBING, J.:
These two petitions stem from the decision xxviii dated September 23, 1996 of
the Regional Trial Court of Cebu, Branch 20, in Civil Case No. CEB-16765. The first xxix
seeks the reversal of the Court of Appeals decision dated March 21, 1997, setting
aside the orders dated October 1 and November 22, 1996 of the Regional Trial Court.
The secondxxx prays for the reversal of the resolution dated February 10, 1998, of the
Court of Appeals in CA-G.R. No. CV-56265, denying the motion to dismiss.
The antecedent facts, as gathered from the parties pleadings, are as follows:
On September 23, 1996, the Regional Trial Court of Cebu, Branch 20, decided
Civil Case No. CEB-16765, decreeing among others the legal separation between
petitioner Aida Baez and respondent Gabriel Baez on the ground of the latters sexual
infidelity; the dissolution of their conjugal property relations and the division of the
net conjugal assets; the forfeiture of respondents one-half share in the net conjugal
assets in favor of the common children; the payment to petitioners counsel of the
sum of P100,000 as attorneys fees to be taken from petitioners share in the net
assets; and the surrender by respondent of the use and possession of a Mazda
motor vehicle and the smaller residential house located at Maria Luisa Estate Park
Subdivision to petitioner and the common children within 15 days from receipt of the
decision.
Thereafter, petitioner filed an urgent ex-parte motion to modify said decision,
while respondent filed a Notice of Appeal.
The trial court granted petitioner Aida Banez urgent ex-parte motion to modify
the decision on October 1, 1996 by approving the Commitment of Fees dated
December 22, 1994; obliging petitioner to pay as attorneys fees the equivalent of
5% of the total value of respondents ideal share in the net conjugal assets; and
ordering the administrator to pay petitioners counsel, Atty. Adelino B. Sitoy, the sum
of P100,000 as advance attorneys fees chargeable against the aforecited 5%. xxxi
In another motion to modify the decision, petitioner Aida Baez sought moral
and exemplary damages, as well as litigation expenses. On October 9, 1996, she
filed a motion for execution pending appeal. Respondent Gabriel Baez filed a
consolidated written opposition to the two motions, and also prayed for the
reconsideration of the October 1, 1996 order.
On November 22, 1996, the trial court denied Aidas motion for moral and
exemplary damages and litigation expenses but gave due course to the execution
pending appeal. Thus:
WHEREFORE, in view of all the foregoing premises, the petitioners motion
to modify decision is hereby ordered denied. But, petitioners motion for
execution of decision pending appeal is hereby granted. Consequently, let a
writ of execution be issued in this case to enforce the decision for (1)
respondent to vacate the premises of the small residential house situated in
Maria Luisa Estate Park Subdivision, Lahug, Cebu City and for (2) respondent to
surrender the use and possession of said Mazda motor vehicle together with its
keys and accessories thereof to petitioner.
Atty. Edgar Gica, the Special Administrator, appointed in this case, is

hereby ordered to make the necessary computation of the value of the one-half
(1/2) share of petitioner in the net remaining conjugal assets of the spouses
within 10 days from receipt of this order.
The petitioner is hereby ordered to post a bond in the amount of
P1,500,000.00 to answer for all the damages that respondent may suffer
arising from the issuance of said writ of execution pending appeal and to
further answer for all the advances that petitioner may have received from the
Special Administrator in this case pending final termination of this present
case.xxxii
In turn, in a petition for certiorari, Gabriel Baez elevated the case to the Court
of Appeals. On March 21, 1997, the appellate court rendered its decision, thus:
WHEREFORE, the Order dated October 1, 1996 and the Omnibus
Order dated November 22, 1996, insofar as (1) it authorized the release
of the sum of P100,000.00 to private respondents counsel as the
advanced share of private respondent [Aida Baez] in the net remaining
conjugal assets, and (2) granted the motion for execution pending appeal
by ordering petitioner [Gabriel Baez] to vacate the premises of the small
residential house situated in Maria Luisa Estate Park Subdivision, Lahug,
Cebu City, and to surrender the use and possession of the Mazda Motor
vehicle to private respondent are hereby SET ASIDE. The writ of execution
dated December 2, 1996 and the Order dated December 10, 1996
granting the motion filed by the sheriff to make symbolic delivery of the
subject house and motor vehicle to the administrator of the partnership
are also SET ASIDE.
As prayed for by petitioner, the Administrator of the conjugal
partnership is hereby ordered to cause the reimbursement by counsel for
the private respondent [Aida Baez] of the amount of P100,000.00
released to him as advance payment of attorneys fees.
SO ORDERED.xxxiii
On February 10, 1998, the Court of Appeals denied Aidas motion for
reconsideration. Hence, the petition in G.R. No. 132592, filed by herein petitioner.
In the meantime, the trial court gave due course to Gabriels Notice of Appeal
and elevated on April 15, 1997 the entire case records to the Court of Appeals. Aida
filed with the Court of Appeals a motion to dismiss the appeal on the ground that
Gabriel had failed to file with the appellate court a Record on Appeal. On February
10, 1998, the Court of Appeals decided the motion, thus:
WHEREFORE, premises considered, the petitionerappellants motion
to dismiss filed on November 3, 1997 is hereby DENIED. The appointment
of the petitioner-appellee as administratix of the conjugal properties is
hereby AFFIRMED.
In view of petitioners Motion to Withdraw her own appeal filed on
November 27, 1997, and for failing to pay the required docket fee within
the prescribed period under Rule 41, Section 4 of the 1997 Rules of Civil
Procedure, the appeal instituted by the petitioner Aida P. Baez is hereby
DISMISSED.
In continuance of the appeal of respondent-appellant [Gabriel Baez],
he is hereby ordered to file his brief with the court within 45 days from
receipt of this resolution. The petitioner-appellee [Aida Baez] shall file her
own brief with the court within 45 days from receipt of the petitioner-

87

appellants [Gabriel Baez] brief.

SO ORDERED.xxxiv
The appellate court also denied herein petitioners motion for reconsideration, hence,
the petition in G.R. No. 133628.
On January 19, 2000, we consolidated the two petitions. Petitioner Aida Baez
now avers that the Court of Appeals erred:
I. G.R. No. 132592
... IN SETTING ASIDE THE GRANT OF EXECUTION PENDING APPEAL BY THE
TRIAL COURT OF THE PORTIONS OF ITS DECISION ORDERING RESPONDENT TO
VACATE THE SMALLER RESIDENTIAL HOUSE LOCATED AT THE MARIA LUISA
ESTATE PARK SUBDIVISION, CEBU CITY, AND TO PAY P100,000.00 TO
PETITIONERS COUNSEL AS ATTORNEYS FEES TO BE TAKEN FROM HER SHARE IN
THE NET CONJUGAL ASSETS.xxxv
II. G.R. No. 133628:
... IN NOT GRANTING PETITIONERS MOTION TO DISMISS RESPONDENTS
ORDINARY APPEAL AND/OR NOT RETURNING THE RECORDS OF CIVIL CASE NO.
CEB-16765 TO THE REGIONAL TRIAL COURT OF CEBU.xxxvi
In G.R. No. 132592, petitioner manifested that she no longer questions the
Court of Appeals decision on the Mazda vehicle because respondent repossessed it.
As to the residential house, she claimed that being conjugal in nature, justice
requires that she and her children be allowed to occupy and enjoy the house
considering that during the entire proceedings before the trial court, she did not
have the chance to occupy it. Further, she posted a bond of P1,500,000 for the
damages which respondent may suffer. xxxvii For these reasons, she asked for
execution pending appeal. The amount of P100,000 as advance payment to her
counsel was a drop in the bucket compared to the bond she posted, according to
her. She also suggested as an alternative that she simply be required to put up an
additional bond. She also agreed to submit to an accounting as regular
administratrix and the advance attorneys fees be charged to her share in the net
conjugal assets.
In his comment, respondent denied petitioners allegation that she did not have
the chance to occupy the residential house. He averred that she could have, had she
chosen to. According to him, as the inventory of the couples properties showed,
petitioner owned two houses and lots and two motor vehicles in the United States,
where she is a permanent resident. Respondent contended that there was no
compelling reason for petitioner to have the judgment executed pending appeal.
Essentially, the core issue in G.R. No. 132592 is whether execution of judgment
pending appeal was justified.
As held in Echaus vs. Court of Appeals, 199 SCRA 381, 386 (1991), execution
pending appeal is allowed when superior circumstances demanding urgency
outweigh the damages that may result from the issuance of the writ. Otherwise,
instead of being an instrument of solicitude and justice, the writ may well become a
tool of oppression and inequity.xxxviii
In this case, considering the reasons cited by petitioner, we are of the view that
there is no superior or urgent circumstance that outweighs the damage which
respondent would suffer if he were ordered to vacate the house. We note that
petitioner did not refute respondents allegations that she did not intend to use said
house, and that she has two (2) other houses in the United States where she is a
permanent resident, while he had none at all. Merely putting up a bond is not

sufficient reason to justify her plea for execution pending appeal. To do so would
make execution routinary, the rule rather than the exception.xxxix
Similarly, we are not persuaded that the P100,000 advance payment to
petitioners counsel was properly granted. We see no justification to pre-empt the
judgment by the Court of Appeals concerning said amount of P100,000 at the time
that the trial courts judgment was already on appeal.
In G.R. No. 133628, petitioner Aida Baez contends that an action for legal
separation is among the cases where multiple appeals may be taken. According to
her, the filing of a record on appeal, pursuant to Section 2(a), Rule 41 of the Rules of
Court,xl is required in this case. She concludes that respondents appeal should have
been dismissed for his failure to file the record on appeal within the reglementary
period, as provided under Section 1-b, Rule 50 of the Rules of Court. xli
Petitioner likewise prays that, in the event that we do not dismiss Gabriel Baez
appeal, we should direct the appellate court to return the records of the case to the
RTC of Cebu. Thereafter, according to her, respondent should file his record on
appeal for approval and transmittal to the Court of Appeals. In the alternative, she
prays that the appellate court retain only the pleadings and evidence necessary to
resolve respondents appeal pursuant to Section 6, Rule 44 xlii and Section 6, Rule
135xliii of the Rules of Court, and return the rest of the case records to the RTC.
In turn, respondent argues that Section 39 of B.P. 129 xliv expressly abolished
the requirement of a record on appeal, except in appeals in special proceedings in
accordance with Rule 109,xlv and other cases wherein multiple appeals are allowed.
An action for legal separation, he avers, is neither a special proceeding nor one
where multiple appeals are allowed.
Now, is an action for legal separation one where multiple appeals are allowed?
We do not think so.
In Roman Catholic Archbishop of Manila v. Court of Appeals, 258 SCRA 186, 194
(1996), this Court held:
xxx Multiple appeals are allowed in special proceedings, in actions for
recovery of property with accounting, in actions for partition of property
with accounting, in the special civil actions of eminent domain and
foreclosure of mortgage. The rationale behind allowing more than one
appeal in the same case is to enable the rest of the case to proceed in the
event that a separate and distinct issue is resolved by the court and held
to be final.
In said case, the two issues raised by therein petitioner that may allegedly be
the subject of multiple appeals arose from the same cause of action, and the subject
matter pertains to the same lessor-lessee relationship between the parties. Hence,
splitting the appeals in that case would only be violative of the rule against
multiplicity of appeals.
The same holds true in an action for legal separation. The issues involved in
the case will necessarily relate to the same marital relationship between the parties.
The effects of legal separation, such as entitlement to live separately, dissolution
and liquidation of the absolute community or conjugal partnership, and custody of
the minor children, follow from the decree of legal separation. xlvi They are not
separate or distinct matters that may be resolved by the court and become final
prior to or apart from the decree of legal separation. Rather, they are mere incidents
of legal separation.xlvii Thus, they may not be subject to multiple appeals.
Petitioners alternative prayers that in case we do not dismiss the appeal, we

88

return the records to the trial court and require respondent to file a record on
appeal, or we return the records to the trial court and retain only the pleadings and
orders relevant to the appeal, are untenable. If we grant the first, we are effectively
saying that the instant case is one involving multiple appeals, which it is not. If we
allow the second, we are effectively applying by analogy, Section 6, Rule 44 and
Section 6, Rule 135 of the Rules of Court, without petitioner showing support
therefor in law or jurisprudence.xlviii
WHEREFORE, the instant petitions are DENIED for lack of merit. The decision
and resolution of the Court of Appeals in CA-G.R. SP No. 42663 and CA-G.R. No. CV56265, respectively, are hereby AFFIRMED, so that the Order dated October 1, 1996,
of the Regional Trial Court authorizing the release of P100,000 to petitioners counsel;
the Omnibus Order dated November 22, 1996 granting the motion pending appeal;
the writ of execution dated December 2, 1996; and the Order dated December 10,
1996 granting the motion by the sheriff to make symbolic delivery of the house and
vehicle are SET ASIDE. Further, the Administrator of the conjugal partnership is
ORDERED to cause the reimbursement by petitioners counsel of the released
amount of P100,000. The Court of Appeals is hereby DIRECTED to give due course to
respondents appeal, and the Division Clerk of Court of this Court is likewise
DIRECTED to promptly remand the record of these cases to the Court of Appeals.
Costs against petitioner.
SO ORDERED.
[G.R. No. 139789. May 12, 2000]
ERLINDA K. ILUSORIO, petitioner, vs. ERLINDA I. BILDNER and SYLVIA K.
ILUSORIO, JOHN DOE and JANE DOE, respondents. Mesm
[G.R. No. 139808. May 12, 2000]
POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER, and SYLVIA ILUSORIO,
petitioners, vs. COURT OF APPEALS and ERLINDA K. ILUSORIO,
respondents.
DECISION
PARDO, J.:
May a wife secure a writ of habeas corpus to compel her husband to live with her in
conjugal bliss? The answer is no. Marital rights including coverture and living in
conjugal dwelling may not be enforced by the extra-ordinary writ of habeas corpus.
A writ of habeas corpus extends to all cases of illegal confinement or detention, 78 or
by which the rightful custody of a person is withheld from the one entitled thereto. 79
Slx
"Habeas corpus is a writ directed to the person detaining another, commanding him
to produce the body of the prisoner at a designated time and place, with the day
and cause of his capture and detention, to do, submit to, and receive whatsoever
the court or judge awarding the writ shall consider in that behalf." 80

It is a high prerogative, common-law writ, of ancient origin, the great object of which
is the liberation of those who may be imprisoned without sufficient cause. 81 It is
issued when one is deprived of liberty or is wrongfully prevented from exercising
legal custody over another person.82
The petition of Erlinda K. Ilusorio83 is to reverse the decision84 of the Court of Appeals
and its resolution85 dismissing the application for habeas corpus to have the custody
of her husband, lawyer Potenciano Ilusorio and enforce consortium as the wife.
On the other hand, the petition of Potenciano Ilusorio86 is to annul that portion of the
decision of the Court of Appeals giving Erlinda K. Ilusorio visitation rights to her
husband and to enjoin Erlinda and the Court of Appeals from enforcing the visitation
rights.
The undisputed facts are as follows: Scslx
Erlinda Kalaw Ilusorio is the wife of lawyer Potenciano Ilusorio.
Potenciano Ilusorio is about 86 years of age possessed of extensive property valued
at millions of pesos. For many years, lawyer Potenciano Ilusorio was Chairman of the
Board and President of Baguio Country Club.
On July 11, 1942, Erlinda Kalaw and Potenciano Ilusorio contracted matrimony and
lived together for a period of thirty (30) years. In 1972, they separated from bed and
board for undisclosed reasons. Potenciano lived at Urdaneta Condominium, Ayala
Ave., Makati City when he was in Manila and at Ilusorio Penthouse, Baguio Country
Club when he was in Baguio City. On the other hand, Erlinda lived in Antipolo City.
Out of their marriage, the spouses had six (6) children, namely: Ramon Ilusorio (age
55); Erlinda Ilusorio Bildner (age 52); Maximo (age 50); Sylvia (age 49); Marietta
(age 48); and Shereen (age 39).
On December 30, 1997, upon Potencianos arrival from the United States, he stayed
with Erlinda for about five (5) months in Antipolo City. The children, Sylvia and
Erlinda (Lin), alleged that during this time, their mother gave Potenciano an
overdose of 200 mg instead of 100 mg Zoloft, an antidepressant drug prescribed by
his doctor in New York, U.S.A. As a consequence, Potencianos health deteriorated.

78

84

79

85

80

86

81
82
83

89

On February 25, 1998, Erlinda filed with the Regional Trial Court, Antipolo City a
petition87 for guardianship over the person and property of Potenciano Ilusorio due to
the latters advanced age, frail health, poor eyesight and impaired judgment.
On May 31, 1998, after attending a corporate meeting in Baguio City, Potenciano
Ilusorio did not return to Antipolo City and instead lived at Cleveland Condominium,
Makati. Slxsc
On March 11, 1999, Erlinda filed with the Court of Appeals a petition for habeas
corpus to have the custody of lawyer Potenciano Ilusorio. She alleged that
respondents88 refused petitioners demands to see and visit her husband and
prohibited Potenciano from returning to Antipolo City.
After due hearing, on April 5, 1999, the Court of Appeals rendered decision the
dispositive portion of which reads:
"WHEREFORE, in the light of the foregoing disquisitions, judgment
is hereby rendered:
"(1) Ordering, for humanitarian consideration and upon petitioners
manifestation, respondents Erlinda K. Ilusorio Bildner and Sylvia
Ilusorio-Yap, the administrator of Cleveland Condominium or
anywhere in its place, his guards and Potenciano Ilusorios staff
especially Ms. Aurora Montemayor to allow visitation rights to
Potenciano Ilusorios wife, Erlinda Ilusorio and all her children,
notwithstanding any list limiting visitors thereof, under penalty of
contempt in case of violation of refusal thereof; xxx
"(2) ORDERING that the writ of habeas corpus previously issued be
recalled and the herein petition for habeas corpus be DENIED DUE
COURSE, as it is hereby DISMISSED for lack of unlawful restraint or
detention of the subject of the petition.
"SO ORDERED."89
Hence, the two petitions, which were consolidated and are herein jointly decided.
As heretofore stated, a writ of habeas corpus extends to all cases of illegal
confinement or detention,90 or by which the rightful custody of a person is withheld
from the one entitled thereto. It is available where a person continues to be
unlawfully denied of one or more of his constitutional freedoms, where there is
denial of due process, where the restraints are not merely involuntary but are
unnecessary, and where a deprivation of freedom originally valid has later become
arbitrary.91 It is devised as a speedy and effectual remedy to relieve persons from

unlawful restraint, as the best and only sufficient defense of personal freedom. 92
Jksm
The essential object and purpose of the writ of habeas corpus is to inquire into all
manner of involuntary restraint, and to relieve a person therefrom if such restraint is
illegal.93
To justify the grant of the petition, the restraint of liberty must be an illegal and
involuntary deprivation of freedom of action.94 The illegal restraint of liberty must be
actual and effective, not merely nominal or moral.95
The evidence shows that there was no actual and effective detention or deprivation
of lawyer Potenciano Ilusorios liberty that would justify the issuance of the writ. The
fact that lawyer Potenciano Ilusorio is about 86 years of age, or under medication
does not necessarily render him mentally incapacitated. Soundness of mind does
not hinge on age or medical condition but on the capacity of the individual to discern
his actions.
After due hearing, the Court of Appeals concluded that there was no unlawful
restraint on his liberty.
The Court of Appeals also observed that lawyer Potenciano Ilusorio did not request
the administrator of the Cleveland Condominium not to allow his wife and other
children from seeing or visiting him. He made it clear that he did not object to seeing
them.
As to lawyer Potenciano Ilusorios mental state, the Court of Appeals observed that
he was of sound and alert mind, having answered all the relevant questions to the
satisfaction of the court.
Being of sound mind, he is thus possessed with the capacity to make choices. In this
case, the crucial choices revolve on his residence and the people he opts to see or
live with. The choices he made may not appeal to some of his family members but
these are choices which exclusively belong to Potenciano. He made it clear before
the Court of Appeals that he was not prevented from leaving his house or seeing
people. With that declaration, and absent any true restraint on his liberty, we have
no reason to reverse the findings of the Court of Appeals.
With his full mental capacity coupled with the right of choice, Potenciano Ilusorio
may not be the subject of visitation rights against his free choice. Otherwise, we will

87

92

88

93

89

94

90

95

91

90

deprive him of his right to privacy. Needless to say, this will run against his
fundamental constitutional right. Es m
The Court of Appeals exceeded its authority when it awarded visitation rights in a
petition for habeas corpus where Erlinda never even prayed for such right. The
ruling is not consistent with the finding of subjects sanity.
When the court ordered the grant of visitation rights, it also emphasized that the
same shall be enforced under penalty of contempt in case of violation or refusal to
comply. Such assertion of raw, naked power is unnecessary.
The Court of Appeals missed the fact that the case did not involve the right of a
parent to visit a minor child but the right of a wife to visit a husband. In case the
husband refuses to see his wife for private reasons, he is at liberty to do so without
threat of any penalty attached to the exercise of his right.
No court is empowered as a judicial authority to compel a husband to live with his
wife. Coverture cannot be enforced by compulsion of a writ of habeas corpus carried
out by sheriffs or by any other mesne process. That is a matter beyond judicial
authority and is best left to the man and womans free choice.
WHEREFORE, in G. R. No. 139789, the Court DISMISSES the petition for lack of
merit. No costs.
In G. R. No. 139808, the Court GRANTS the petition and nullifies the decision of the
Court of Appeals insofar as it gives visitation rights to respondent Erlinda K. Ilusorio.
No costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.

91

Manila
G.R. No. L-32820-21 January 30, 1976
DOROTEA DE OCAMPO VDA. DE DELIZO and her nine (9) children, named
REGINO, CRISPINA, CARMEN, BASILIO, HILARIO, MACARIO, SENDON
MARCIANO and HERMOGENES, all surnamed DELIZO y OCAMPO, petitionersappellants,
vs.
URBANA DELIZO, assisted by her husband, AMBROCIO FLORA, SEVERINO
DELIZO and the Heirs of FRANCISCO DELIZO, namely, RANCIVILLANO
SOLTRIFILO, JOSEFINA, EUPROCINA, AUREA, EDITA and FE all surnamed
DELIZO, and ROSENDA GENOVE VDA. DE DELIZO, respondents-appellees.
Leandro C. Sevilla for petitioners-appellants.
Romeo J. Callejo respondents-appellees.
ANTONIO, J.:
These two cases involve the partition of the conjugal partnership properties of two
marriages contracted by Nicolas Delizo. The first, was with Rosa Villasfer, which
lasted from April 20, 1891 until Rows death on December 7, 1909, or a period of
eighteen (18) years; and the second, with Dorotea de Ocampo, which existed for a
period of forty-six (46) years, or from October, 1911 until the death of Nicolas Delizo
on May 3, 1957 at the age of ninety (90) years. The action for partition was
instituted on April 15, 1957 by a daughter and a son of the first marriage, namely,
Urbana Delizo and Severino Delizo, and the heirs of Francisco Delizo, another son,
who died in 1943, specifically, Rancivillano Soltrifilo Josefina, Eufrocina, Aurea, Edita,
and Fe, all surnamed Delizo (the last three being minors were represented by their
mother, Rosenda Genove) all against their father, Nicolas Delizo, and his second
wife, Dorotea de Ocampo, and their nine (9) children, the herein petitionersappellants, namely Regino, Crispina, Carmen, Basilio, Hilario, Macario, Sendon,
Marciano, and Hermogenes, all surnamed Delizo.
The aforesaid defendants opposed the partition, claiming that the properties
described in the complaint were those of the second marriage. On May 3, 1957,
Nicolas Delizo died and was substituted by his children in the second m as party
defendants. In the meantime, Special Proceedings No. 1058 (Intestate Estate of the
late Nicolas Delizo) was filed by Dorotea de Ocampo on June 3, 1957. Thereafter, or
on August 23, 1971, Severino De died intestate and is now represented by his
children, namely, Federico, Severina, Angelina, Segundina and Brigida, all surnamed
Delizo. Involved are the properties acquired by Nicolas Delizo, among which are
sixty-six (66) hectares of agricultural lands in San Jose City, Nueva Ecija; fifty-eight
(58) hectares of riceland in Muoz of the same province; and a square meter lot at
1056-M P. Campa, Sampaloc, Manila. The properties are specifically described as
follows:
(1) Lots Nos. 210, 211, 388, 389, 390, and 407 of the San Jose Cadastre situation in
Rizal, San Jose with a combined area of about sixty-six (66) hectares covered by OCT
No. 6176-N.E. issued in the name of Nicolas Delizo, married to Dorotea de Ocampo
(Exh. F or 11);
(2) Lot No. 1915 of the San Jose Cadastre with an area of about 1,056 square meters
and covered by OCT No. 5783 in the name of Nicolas Delizo, married to Dorotea de
Ocampo (Exh. G or 12);

(3) Lot No. 498 of the San Jose Cadastre with an area of about 3,366 square meters
and covered by OCT No. 5622, N.E. issued in the name of Nicolas Delizo, married to
Dorotea de Ocampo (Exh. H. or 13);
(4) A parcel of land in San Jose, Nueva Ecija containing an area of 13.2948 hectares
and covered by TCT No. 2985-N.E. (Exh. I. or 13-A);
(5) An agricultural land of about 17.4753 hectares situated in sitio Rangayan, Muoz
and covered by TCT No. 5162 (Exh. J or 14);
(6) A parcel of land in Barrio Caanawan, San Jose, with an area of about 14.0354
hectares and covered by TCT No. 11910 (Exh. K or 10);
(7) A cornland in Barrio Rangayan, Muoz, Nueva Ecija, of about 1,500 square
meters and covered by Tax Declaration No. 5476;
(8) Riceland in Barrio San Andres, Muoz of about 5,083 square meters and covered
by Tax Declaration No. 7083;
(9) Riceland in Barrio Rangayan, Muoz, Nueva Ecija, containing an area of about
17.4755 hectares and covered by Tax Declaration No. 812;
(10) Lot No. 847-a riceland in Barrio Bayan, Muoz, with an area of about 13.0902
hectares and covered by TCT No. 3585 issued in the name of Nicolas Delizo, married
to Dorotea de Ocampo on April 25,1929 (Exhs. L or 15 & 15-A);
(11) A camarin of strong materials, with galvanized iron roofing in San Jose, Nueva
Ecija, about eight (8) meters by twelve
(12) meters; (12) A residential house and lot at Sanchez Street, San Jose, Nueva
Ecija;
(13) Lot No. 1790 of San Jose Cadastre of about 2,840 square meters and covered by
Original Certificate of Title No. 8131 in the names of spouses Silvestre Batara and
Maria Soriano issued on November 16, 1927 (Exh. M or 16), superseded by Transfer
Certificate of Title No. NT-29524 issued in the name of Juan T. Gualberto on May
25,1959 (Exh. N or 17) claimed by the heirs of Nicolas Delizo and Dorotea de
Ocampo pursuant to deed of sale (Exh. N1);
(14) An urban lot and coconut plantation in San Fabian, Pangasinan;
(15) A lot and residential house consisting Of a two-door accessoria at No. 1056-58
(formerly 562) P. Campa, Sampaloc, Manila;
(16) A sawmill with accessories, bulldozers, etc. in San Jose, Nueva Ecija (bulldozer is
now in Gordon, Isabels in the possession of Regino Delizo and Basilio Delizo); and
(17) Several heads of carabaos. After trial, the lower court rendered judgment on
April 27, 1964, distributing the aforesaid properties as follows: (a) onehalf () pro
indiviso to the three (3) children of the first marriage, namely, Urbana Delizo,
Severino Delizo, and the heirs of the deceased Francisco Delizo, viz.: Rancivillano
Soltrifilo Josefina, Eufrocina, Aurea, Edita, and Fe (b) one-fourth () pro indiviso to
the surviving spouse, Dorotea de Ocampo; and (c) one-fourth () pro in equal
shares to the children of both marriages, nine (9) of whom were begotten during the
second marriage, or into thirteen (13) parts.
From said judgment. petitioners-appellants appealed to the Court of Appeals. On
August 12, 1970, the Appellate Court rendered judgment, affirming with
modifications the trial court's decision. The facts as found by the Appellate Court are
as follows:
As regards the Caanawan lands situated in Caanawan, San Jose, Nueva Ecija,
comprising some 66 hectares, defendants capitalize on the undisputed fact that
Original Certificate of Title No. 6176 (Exh. F or 11) issued on August 21, 1924,

92

covering these lands is in the name of Nicolas Delizo, ma to Dorotea de Ocampo.

Defendants further point out that the testimonies of defendant Dorotea de Ocampo
and octogenarian Moises Patricio prove that these lands were acquired during the
second marriage.
However, the fact that the disputed lands situated in Caanawan were registered in
the name of 'Nicolas Delizo, married to Dorotea de Ocampo's no proof that the
property is owned by the second conjugal partnership. The phrase 'married to' is
merely descriptive of the civil status of Nicolas Delizo (Gonzales vs. Miller, 69 Phil.
340; De Jesus vs. Padilla, CA-G.R. No. 12191-R, April 19, 1955; Muoz & Tan Go Inc.
vs. Santos CA-G.R. No. "27759-R, October 3, 1963; Pratts vs. Sheriff of Rizal, 53 Phil.
51, 53). Neither is the testimony of Dorotea de Ocampo that the said lands were
acquired by her and her spouse, altogether clear and persuasive. For while the
admitted fact is that she and Nicolas Delizo were married in 1911, she declared on
the witness stand that the aforesaid properties were given by Pedro Salvador to her
and her spouse in 1908 (t.s.n., p. 288, March 8, 1963), thereby leading the trial court
to infer an admission that these lands were acquired during the first marriage of
Nicolas Delizo. It may likewise be noted that as per her testimony, she and her
father arrived in Caanawan, San Jose, Nueva Ecija, when Rosa Villasfer was still alive.
That would be sometime before 1911. But she admitted that her father then was not
able to acquire lands from Pedro Salvador, their grantor, because he had no more
lands to distribute to settlers. Accordingly, it is farfetched that after Rosa's death
and the subsequent marriage of Nicolas Delizo to Dorotea de Ocampo, Pedro
Salvador would still have those 67 hectares which defendants claimed were acquired
by the spouses Nicolas Delizo and Dorotea de Ocampo by grant from Pedro Salvador
(t.s.n., pp. 459-46, March 15, 1963).
Moises Patricio tried to confirm the widow, declaring that Nicolas Delizo was married
to defendant Dorotea de Ocampo, when he was given lands in Caanawan by Pedro
Salvador (t.s.n., p. 493, June 7, 1963). However, he placed the acquisition sometime
during the founding of Barrio Sto. Tomas, San Jose, Nueva Ecija (Id., p. 492) which
took place some four years after the Spanish-Filipino revolution of 1896 (t.s.n., pp.
548-549, June 21, 1963), or approximately 1900. Therefore, it could not be Dorotea
de Ocampo, but Rosa Villasfer, who was admittedly still alive and the wife of Nicolas
Delizo at the time of the acquisition.
Ranged against these unreliable testimonies for the defendants, is the testimony of
Lorenzo Delizo, who being a brother of deceased Nicolas Delizo, stands in equal
relationship to the plaintiffs, who were Nicolas' children by the first marriage, and
the defendants, who were children of Nicolas in his second marriage. His testimony
therefore carries great weight. This witness averred that 16 hectares were acquired
as homestead by his deceased brother, Nicolas Delizo, from Pedro Salvador and
Mauricio Salvador who were then 'cabecillas' distributing lands to homesteaders in
1905 (t.s.n., p. 12, January 20, 1961); that Nicolas acquired by sale the 16-hectare
homestead of Nicolas Dacquel in 1906, another 16- hectare homestead of Mariano
Antolin in 1907 and the 16-hectare homestead of Francisco Pascua in 1908 (id., pp.
14-15). Lorenzo's declarations are supported by the testimonies of (1) Urbana
Delizo, a daughter of Nicolas by his first marriage and who was already 17 when her
mother, Rosa Villasfer, died in 1909 (id., p. 19); (2) Sabiniano Villanueva, a son of

one of Nicolas' tenants on the controverted Caanawan lands (id., pp. 93-168) and (3)
Raymundo Eugenio, a former clerk in the municipal treasurer's office who u to
collect taxes on the land belonging to Nicolas and later became municipal "president
of San Jose, Nueva Ecija (t.s.n., pp. 367-368, Jan. 31, 1964), although these
Caanawan lands cannot be traced back to TD 431, Exhibit P-9 issued in 1906, cited
by appellants (see notations at bottom of reverse side of alleged succeeding TDs)
aside from the fact that the notations on the reverse side thereof are suspicious (see
years when tax commenced and when issued) and the discrepancy between areas
(8 Ha. in Exhibit P-9 and 57 Ha. for lots 210 and 211).
Accordingly, we find with the trial court that the Caanawan lands, comprising lots
Nos. 210, 211, 388, 390, 398 and 407.1-under Original Certificate of Title No. 6176
(Exh. F or 11) were acquired during the existence of the first marriage of Nicolas
Delizo to Rosa Villasfer and there being no affirmative showing that they belonged
exclusively to said Nicolas Delizo, should therefore correspond to the first conjugal
partnership of Nicolas Delizo and Rosa Villasfer. So with the lot and house at 562 P.
Campa St., Sampaloc, Manila, known as Lot 47, Block 83 covered by TCT No. 9616Manila which was ceded during the second marriage in payment of, or substitution
for, the Caanawan property, because the Asiatic Petroleum Company to which it had
been mortgaged as bond for Juan Par as agent foreclosed the mortgage, when the
agent defaulted in his obligation to the company, Exhibits 6, 7 & 19 (Art. 153
[formerly, 140], par. 1, new Civil Code).
However, with regard to the other properties in question, like lot No. 498 of the San
Jose Cadastre, under Original certificate of Title No. 5622, likewise issued in the
name of Nicolas Delizo, married to Dorotea de Ocampo'; a parcel of land in San Jose,
Nueva Ecija under TCT No. 2985 (Exh. I or 13)' and agricultural land of about
17.4753 hectares in Sitio Rangayan, Muoz Nueva Ecija under TCT No. 5162 (Exh. J
or 14); another parcel of land in Caanawan, San Jose, with an area of about 14.0354
hectares under TCT No. 11910 (Exh. K or 10); a coin land in barrio Rangayan, Muoz,
Nueva Ecija, of about 1,500 square me ' quarters under Tax Declaration No. 5476; a
riceland in barrio San Andres, Muoz Nueva Ecija, of about 5,083 square meters
under Tax Dec. 7083; another riceland in Rangayan, Muoz, of about 17.4755
hectares under Tax Dec. No. 812; a riceland, lot No. 847, of about 13.0902 hectares
covered by TCT No. 3585 issued on April 29, 1929 in the name of 'Nicolas Delizo,
married to Dorotea de Ocampo'(Exh. L or 1.5)-, a camarin of strong materials with
galvanized iron roofing in San Jose, Nueva Ecija, about 8 meters by 12 meters; a
residential lot at Sanches Street, San Jose, Nueva Ecija; lot No. 1790 of the San Jose
Cadastre consisting of 2,840 square meters, more or less, under Original Certificate
of Title No. 8131 in another name but claimed by the heirs under deed of sale,
Exhibit N1 a sugar cane mill in San Jose, Nueva Ecija and several heads of carabaos
(Exh. 0); Lots Nos. 495 and 496 of the San Jose Cadastre, possessed by defendants
although adjudicated in the name of Marcelo Tomas and Guillermo Cabiso,
respectively; lot No. 494-A, of the San Jose Cadastre, adjudicated in the name of
Nicolas Delizo and Dorotea de Ocampo (RA, pp. 96-97),-there is no controversy that
these were all acquired during the existence of the second marriage of Nicolas
Delizo.
On the basis of the foregoing facts, the Court of Appeals rendered judgment as
follows:

93

But the trial court held that because there was no liquidation of the conjugal
partnership property of the first marriage, upon the death of the first wife, 'the
conjugal partnership was converted into one of co-ownership between Nicolas Delizo
and his children of the first marriage .... Hence, all the fruits or increase of the
properties acquired thereafter shall belong to such co-ownership.' We cannot agree
with this legal conclusion. One-half of the conjugal properties of the first marriage
constituted the separate property of the husband at the formation of the second
conjugal partnership upon his remarriage in October 1911 (Art. 145, NCC). Moreover,
the fruits of the Caanawan property were acquired through the labor and industry of
Nicolas Delizo and Dorotea Ocampo; and indeed, two witnesses for the plaintiffs
admitted that at the time of the death of Rosa Villasfer, only about 20 hectares of
the Caanawan property had been cleared and cultivated (pp. 22-23; 113, 117, 3834, t.s.n.). This property was practically virgin land, and the rest thereof or about 47
hectares were therefore cleared and cultivated only during the marriage of Nicolas
Delizo and Dorotea Ocampo. This is impliedly admitted in plaintiffs' complaint that
'from the time of death of the said Rosa Villasfer, the defendants ... have WORKED
upon, TILLED and CULTIVATED, or otherwise offered in tenancy the whole of the
agricultural lands described' (par. 2). The Caanawan property left to itself could not
produce any fruits for they did not have any permanent improvements thereon.
What was produced according to the evidence was palay, and the production of
palay requires tilling, cultivation, seedlings, gathering, preservation and marketing.
It was thru the labor and industry of Nicolas Delizo and Dorotea de Ocampo that the
Caanawan property was able to produce fruits. Whatever it produced thru the labor
and industry of the spouses belongs to their conjugal partnership. While it is true
that to the owner of the land belongs the fruits, whether natural, industrial or civil
(Art. 441, NCC formerly Art. 354, Spanish Civil Code), this does not mean that all
that is produced belongs to the owner of the land. The owner, according to Art. 443,
NCC (formerly Art. 356, Spanish Civil Code) who receives the fruits, has the
obligation to pay the expenses made by a person in their production, gathering and
preservation. When Dorotea Ocampo admitted that the Muoz property was
purchased partly with the fruits of the Caanawan property, she was referring to the
gross production, not deducting therefrom what could have pertained to the person
who produced the fruits. So it seems "that if we are to determine with mathematical
certainty what portion of the Muoz property and other properties acquired during
the second marriage should pertain to the first marriage as corn spending to the
value of its share in the fruits of the Caanawan property, and what should belong to
the second marriage as corresponding to the value of the labor and industry of the
spouses Delizo and Ocampo, we have to find how much was produced during the
second marriage and determine what will be the share of the owner of the land what
will correspond to the one who produced the fruits. The burden of proof lies upon the
plaintiffs under the rules of evidence. But, of course, this is an impossibility. For no
records have been kept and it is not in accordance with the Filipino customs for the
surviving spouse-whether he remarries or not-to keep the record of the produce of
the properties left by the deceased spouse. tradition thereto, according to Dorotea
Ocampo, part of the price used in the purchase of Muoz property was the proceeds
of a loan which, together with the properties purchased with it, belongs to the
conjugal partnership of Nicolas Delizo and Dorotea Ocampo. Under these
circumstances, it would be impossible to determine with mathematical precision

what portion of the properties acquired during the second marriage of Nicolas Delizo
should belong to the second conjugal partnership and what portion should belong to
the heirs of the first conjugal partnership, one half of which pertains to the husband.
However, considering that
1. At the time of the dissolution of the first marriage or about five years after
acquisition, according to plaintiffs' evidence, only about 20 hectares of the
Caanawan property had been cultivated, the remaining 47 hectares were therefore
cleared and improved during the second marriage thru the labor and industry of the
spouses Nicolas Delizo and Dorotea Ocampo for 46 years (1911-1967). These
improvements were made in good faith considering that Nicolas Delizo administered
the properties of the first marriage. The second marriage is entitled to
reimbursement for the increase in value of these 47 hectares (Art. 516, NCC Even
the Muoz property acquired during the second marriage had to be improved by the
spouses Nicolas Delizo and Dorotea Ocampo.
2. The one-half of the fruits of the Caanawan property which should pertain to the
heirs of Rosa Villasfer refers only to one-half o f the net after deducting the expenses
of clearing the land, cultivating, gathering and preservation. Forty-seven hectares of
the Caanawan property were cleared and cultivated only during the second
marriage. Even under a liberal apportionment of the produce, the heirs of the
second marriage could not be entitled to more than 30% of the produce.
3. Part of the price used in the purchase of the properties acquired during the
second marriage were the proceeds of a loan. This is conjugal property of the
"second marriage (Palanca vs. Smith, Bell and Co., 9 Phil. 131,133; Castillo Jr. vs.
Pasco, 11 SCRA 102, 106-7).
4. The improvements on 47 hectares of the Caanawan property and on the Muoz
property were made at the expense of the second conjugal partnership of Nicolas
Delizo and Dorotea Ocampo, and thru their labor and industry which lasted for 46
years, whereas the first conjugal partnership had the Caanawan property for less
than 6 years.
Taking into account all the foregoing circumstances and equities of the case, an
adjudication of 20% of all the properties acquired during the second marriage,
including the Muoz property, to the children of the first marriage, and 80% to the
conjugal partnership of Nicolas Delizo and Dorotea Ocampo is fair and equitable. So
the properties of the estate should be partitioned thus:
One-half of the Caanawan property and the house and lot at 562 P. Campa Street,
Manila, covered by TCT No. 9616 as the share of Rosa Villasfer in the first conjugal
partnership of Nicolas Delizo and Rosa Villasfer or 1/6 thereof for each child of the
first marriage; and 20% of all the other properties or 1/15 thereof for each such
child. To Nicolas Delizo should be adjudicated one-half of the Caanawan property
and the house and lot on P. Campa, but in view of the death of Nicolas Delizo his
share descends to all the children, both of the first and second marriages and the
surviving spouse, Dorotea Ocampo, and should therefore be divided by the number
of children plus one or 1/26 thereof for each heir. tightly per cent of all the properties

94

acquired during the marriage of Nicolas Delizo and Dorotea Ocampo constitute the
conjugal partnership of Nicolas Delizo and Dorotea Ocampo; one-half thereof is the
share of Nicolas Delizo, to be divided among his heirs in accordance with the
preceding statement, or 2/65 thereof for each heir; the other half constitutes the
share of Dorotea Ocampo in the conjugal partnership, or 2/5 thereof.
WHEREFORE, paragraph 1 of the judgment appealed from is hereby
modified as follows:
1. Declaring that (a) of the Caanawan property and the house and lot at
562 P. Campa Street, Manila covered by TCT No. 9616-8139 (1/6 + 1/26) thereof pro
indiviso shall pertain to each of the children of Nicolas Delizo "of the first marriage,
namely: Urbana, Severino and the late Francisco Delizo (the last represented by his
children Rancivillano Soltrifilo Josefina, Eufrocina, Aurea, Edita and Fe and 1/26
thereof pro indiviso shall pertain to each of the children of the second marriage and
their mother Dorotea Ocampo; (a) of all other properties required during the second
marriage-19/195 thereof pro indiviso shall pertain to each of the three children by
the first marriage, 2/65 thereof pro indiviso shall pertain to each of the nine children
of the second marriage, while 28/65 thereof pro indiviso shall pertain to the widow
Dorotea Ocampo. The rest of the judgment particularly paragraphs 2 and 3 are
affirmed; without pronouncement as to costs in both instances.
From this adverse judgment, petitioners-appellants interposed the present petition
for review. The thrust of petitioners- appellants' petition is that the Appellate Court
acted under a misapprehension of the facts or decided the legal issues in a way
which is not in consonance with law and with the applicable decisions of this Court,
(a) since, the 67-hectare Caanawan properties could not have been properties of the
first marriage because they were then public lands being homesteads, and while the
first conjugal partnership may have had possessory rights over said properties, it
was only during the second marriage that the requirements of the public land law
were complied with, resulting in the confirmation, registration and issuance of the
Torrens Title over said properties to Nicolas Delizo and his second wife, Dorotea de
Ocampo; (b) apart from the fact that the legal presumption that all properties of the
marriage belong to the conjugal partnership of Nicolas Delizo and Dorotea de
Ocampo were not sufficiently rebutted, these properties were actually. In the
adverse possession under claim of title of petitioners-appellants continuously for a
period of 47 years (1911 to 1957), and consequently, the claim of respondentsappellees for partition should have been considered barred by acquisitive and
extinctive prescription, laches and estoppel; d (c) in any event, there being serious
doubts as to whether. said properties belong to the first marriage, it would have
been more equitable if the said partnership properties were divided between the
different partnerships in proportion to the duration of each and the capital of the
spouses,-pursuant to Article 189 of the Civil Code.
From the findings of the Appellate Court that sixty-six (66) hectares of the Caanawan
properties w ere acquired by Nicolas Delizo as homesteads during the period of the
first marriage, thus: sixteen (16) hectares as a homestead from the Government in
1905; and the 16-hectare homestead of Nicolas Dacquel, the 16-hectare homestead
of Mariano Antolin, and the 16-hectare homestead of Francisco Pascua by purchase
in 1%6, .1907 and 1908, respectively, it does not necessarily follow that they should
be considered as properties of the first marriage, considering that being homesteads
they were part of the public domain, and it was not shown that all the requirements

of the Homestead Law to warrant the grant of a patent to the homesteader have
been complied with prior to the death in 1909 of Delizo's first wife, Rosa Villasfer.
Under Act 926, 1 which was then the applicable law, the right of the homesteader to
the patent does not become absolute until after he has complied with all the
requirements of the law. One of the most important requirements is that the "person
filing the application shall prove by two credible witnesses that he has resided upon
and cultivated the land for the term of five years immediately succeeding the time
of filing the application aforesaid, and shall make affidavit that no part of said land
has been alienated or encumbered ... (Section 3 of Act 926, italics supplied). Prior to
the fulfillment of such requirement, the- applicant has no complete equitable estate
over the homestead which he can sell and convey, mortgage for lease. 2 Until a
homestead right is established and registered under Section 3 of Act 926, there is
only an inchoate right to the property and it has not ceased to be a part of the public
domain and, therefore, not susceptible to alienation as such. 3 Conversely, when a
"homesteader has complied with all the terms and conditions which entitled him to a
patent for a particular tract of public land, he acquires a vested interest therein and
has to be regarded an equitable owner thereof." 4 The decisive factor, therefore, in
the determination of whether a parcel of land acquired by way of homestead is
conjugal property of the first or the second marriage, is not necessarily the time of
the issuance of the homestead patent but the time of the fulfillment of the
requirements of the public land law for the acquisition of such right to the patent. 5
As testified to by Lorenzo Delizo, his brother, Nicolas Delizo, and the latter's wife,
Rosa Villasfer, arrived in Barrio Caanawan, San Jose, Nueva Ecija, from Barrio Ungag,
Cuyapo, Nueva Ecija, during the year 1905. It was during that same year that Pedro
Salvador and Mauricio Salvador, who were then the cabecillas were distributing
lands to homesteaders in Barrio Caanawan. Nicolas Dacquel, Mariano Antolin and
Francisco Pascua must have received their respective homesteads from the same
officers of the government that same year, considering that their respective
homesteads are all adjacent to the homestead of Nicolas Delizo and according to the
evidence, this was the time when the homesteads in that barrio were parceled out to
the new settlers. Indeed, the Homestead Act was then of recent vintage, having
been enacted by the Philippine Commission by authority of the United States
Government, only on October 7, 1903.
Considering that Nicolas Dacquel must have been in possession of his homestead for
barely a year when he transferred his rights in 1906, Mariano Antolin for about two
years with respect to his homestead in 1907, and Francisco Pascua for about three
years in 1908 as regards to his homestead, at the time of their respective
conveyances to Nicolas Delizo, it is, therefore, obvious that not one of them could
have complied with the requirements of Act No. 926 to entitle any one of them to
the issuance of a homestead patent before they sold or assigned their rights to
Nicolas Delizo. The law was quite specific, that "No certificate shall be given or
patent issued for the land applied for until the motion of five year. From the date of
the filing of the application and if, at the expiration of such time or at any time
within three years thereafter, the person filing such application shall prove by two
credible witnesses that he has resided upon and cultivate the land for the term of
five years immediately succeeding the time of filing the application aforesaid, and
shall make affidavit that no part of said land has been I alienated or encumbered,
and that he has borne true allegiance to the Government of the United States and
that of the Philippine Islands, then, upon payment of a fee of ten pesos, Philippine

95

currency to such officer as may be designated by law as local land officer, or in case
there be no such officer then to the Chief of the Bureau of Lands, he shall be entitled
to a patent." (Section 3, Act No. 926, italics supplied). Having neither legal nor
equitable title thereon, what was transferred by them to Nicolas Delizo were,
therefore, not rights of ownership, but inchoate rights as applicants for homesteads
over portions of the public domain. Similarly, having received the homestead only in
1905, Nicolas Delizo could not have perfected his rights thereon by the completion
of the five-year occupancy and cultivation requirement of the law, in 1909.
Buttressing the conclusion that Nicolas Delizo could not have perfected his rights to
the four homesteads before 1909 is the specific limitation imposed by section 3 of
Act No. 926 which provides that "No person who is the owner of more than sixteen
hectares of land in said Islands or who has had the benefits of any gratuitous
allotment of sixteen hectares of land since the acquisition of the Islands by the
United States, shall be entitled to the benefits of this chapter."
The foregoing sufficiently show that the Appellate Court erred in, holding that the
entire Caanawan properties belong to the conjugal partnership of Nicolas Delizo and
Rosa Villasfer. Considering, however, that about twenty (20) hectares were
cultivated and rendered productive during the period from 1905 to 1909, judgment
and equity demand that the rights to said properties be apportioned to the parties in
proportion to the extent to which the requirements of the public land laws had been
complied with during the existence of each conjugal partnership.
II
In connection with the other properties, such as Lot No. 498 of the San Jose
Cadastre, under Original Certificate of Title No. 5622; a parcel of land in San Jose,
Nueva Ecija, under Transfer Certificate of Title No. 2985 (Exh. I or 13), and
agricultural land of about 17.4753 hectares in Sitio Rangayan, Muoz Nueva Ecija,
under Transfer Certificate of Title No. 5162 (Exh. J or 14); a parcel of land in
Caanawan, San Jose, with an area of about 14.0354 hectares, under Transfer
Certificate of Title No. 11910 (Exh. K or 10); a cornland in Barrio Rangayan, Muoz,
Nueva Ecija, of about 1,500 square meters under Tax Declaration No. 5476; a
riceland in Rangayan, Muoz of about 17.4755 hectares, under Tax Declaration No.
812; a riceland, Lot No. 847, of about 13.0902 hectares covered by Transfer
Certificate of Title No. 3585, issued on April 29, 1929 in the name of "Nicolas Delizo,
married to Dorotea de Ocampo" (Exh. L or 15); a camarin of strong materials with
galvanized iron roofing in San Jose, Nueva Ecija; a residential lot at Sanchez Street,
San Jose, Nueva Ecija; Lot No. 1790 of the San Jose Cadastre, consisting of about
2,840 square meters, more or less, under Original Certificate of Title No. 8131 "in
another name but claimed by the heirs under deed of sale, Exhibit N1 a sugar mill in
San Jose, Nueva Ecija and several heads of carabaos (Exh. 0); Lots Nos. 495 and 496
of the San Jose Cadastre, possessed by defendants although adjudicated in the
name of Marcelo Tomas and Guillermo Cabiso respectively; and another lot, Lot No.
494A of the San Jose Cadastre adjudicated in the ' C, name of Nicolas Delizo,
married to Dorotea de Ocampo, the Appellate Court decision penned by Justice
Arsenio Solidum held that "there is no controversy that these were all acquired
during the existence of the second marriage of Nicolas Delizo"
The same opinion, however, held that since these properties were acquired from the
produce of the Caanawan properties although such produce is the result of the labor
and industry of the spouses Nicolas Delizo and Dorotea de Ocampo, only eighty per
cent (80%) of said properties acquired during the second marriage should appertain

to the second conjugal partnership, while twenty per cent (20%) thereof adjudicated
to the children of the first marriage. The two concurring Appellate Justices, although
of the view that the legal presumption that those properties acquired during the
regime of the second conjugal partnership belong to said partnership has not been
rebutted by respondents-appellees and, therefore, would hold that such afteracquired properties should belong to the second conjugal partnership, concurred
nevertheless in the result aforesaid, in order to reach a judgment in the case. It
would have been facile to hold that those after-acquired properties belong to the
second conjugal partnership in view of the statutory presumption enunciated in
Article 1407 of the old Civil Code (now Article 160, New Civil Code). 6 There are,
however, important considerations which preclude Us from doing so. There is the
established fact that the produce of the Caanawan lands contributed considerably to
the acquisition of these properties, and We have held that the children of the first
marriage, as a matter of equity, should share in the Caanawan properties. To deny
the respondents-appellees a share in such properties would have exacerbated
discord instead of enhancing family solidarity and understanding.
Considering these circumstances and since the capital of either marriage or the
contribution of each spouse cannot be determined with mathematical precision, the
total mass of these properties should be divided between the two conjugal
partnerships in proportion to the duration of each partnership. 7 Under this criterion,
the second conjugal partnership should be entitled to 46/64 or 23/32 of the total
mass of properties, and the first conjugal partnership. to 18/64 or 9/32 thereof pro
indivision. The share of the estate of Nicolas Delizo is one-half (1/2) pro indiviso of
the net remainder 8 of the conjugal partnership of gains of the first and second
marriages, which would amount to 32/64 or 1/2 of the whole estate. This should be
distributed in equal shares to his children of both marriages, 9 with the widow having
the same share as that of legitimate child. 10 The widow. Dorotea de Ocampo, is
entitled to one-half () of the net remainder of the second conjugal partnership and
to her share as heir of her deceased husband which amounts to 23/64 of said
properties, plus 1/13 of 32/64 pro indivision. The share of the heirs of Rosa Villasfer
would be 9/64 thereof. The foregoing is recapitulated as follows:
Share of Rosa Villasfer, lst wife 9/64 of whole estate to be divided among three (3)
children Share of Dorotea de Ocampo, 23/64 of whole estate plus her
2nd wife share in Nicolas Delizo s estate.
Share of Nicolas Delizo, husband 32/64 of whole estate to be divided into thirteen
(13) equal parts.Whole Estate 64/64 Computation of Sharing
3/64 + 1/26 = 142/1664] 3/64 + 1/26 = 142/1664] - Share of each child of
3/64 + 1/26 = 142/1664] lst marriage 1/26 = 64/1664]
1/26 = 64/1664] 1/26 = 64/1664] 1/26 = 64/1664] - Share of each child of
1/26 = 64/1664] 2nd marriage 1/26 = 64/1664] 1/26 = 64/1664] 1/26 = 64/1664]
1/26 = 64/1664] 23/64 + 1/26 = 662/1664 - Share of Dorotea Ocampo.
32/64 + 13/26= 1664/1664 - Whole Estate
In the partition of the properties, the probate court should take into account the fact
that the respondents-appellees are in possession of the Muoz lands, while the
petitioners-appellants have been in possession of the Caanawan properties as well
as the house and lot at 562 P. Campa Street. Sampaloc, Manila, as directed in the
trial court's order of April 23, 1958 record on Appeal, pp. 76-77). Should it be
convenient for the parties, their respective shares should be taken from the
properties presently under their custody.

96

Having reached the foregoing conclusions. it is unnecessary to resolve the other

legal questions raised in the appeal.
WHEREFORE, the appealed decision of the Court of Appeals is hereby modified as
herein indicated. The records of these cases should be, as they are hereby,
remanded to the trial court for further proceedings in accordance with this
judgment. No costs.

97

FIRST DIVISION
[G.R. No. 109557. November 29, 2000]
JOSE UY and his Spouse GLENDA J. UY and GILDA L. JARDELEZA,
petitioners, vs. COURT OF APPEALS and TEODORO L. JARDELEZA,
respondents.
DECISION
PARDO, J.:
The case is an appeal via certiorari from the decision xlix of the Court of Appeals
and its resolution denying reconsideration l reversing that of the Regional Trial Court,
Iloilo, Branch 32li and declaring void the special proceedings instituted therein by
petitioners to authorize petitioner Gilda L. Jardeleza, in view of the comatose
condition of her husband, Ernesto Jardeleza, Sr., with the approval of the court, to
dispose of their conjugal property in favor of co-petitioners, their daughter and son
in law, for the ostensible purpose of financial need in the personal, business and
medical expenses of her incapacitated husband.
The facts, as found by the Court of Appeals, are as follows:
This case is a dispute between Teodoro L. Jardeleza (herein respondent) on the
one hand, against his mother Gilda L. Jardeleza, and sister and brother-in-law, the
spouses Jose Uy and Glenda Jardeleza (herein petitioners) on the other hand. The
controversy came about as a result of Dr. Ernesto Jardeleza, Sr.s suffering of a stroke
on March 25, 1991, which left him comatose and bereft of any motor or mental
faculties. Said Ernesto Jardeleza, Sr. is the father of herein respondent Teodoro
Jardeleza and husband of herein private respondent Gilda Jardeleza.
Upon learning that one piece of real property belonging to the senior Jardeleza
spouses was about to be sold, petitioner Teodoro Jardeleza, on June 6, 1991, filed a
petition (Annex A) before the R.T.C. of Iloilo City, Branch 25, where it was docketed
as Special Proceeding No. 4689, in the matter of the guardianship of Dr. Ernesto
Jardeleza, Sr. The petitioner averred therein that the present physical and mental
incapacity of Dr. Ernesto Jardeleza, Sr. prevent him from competently administering
his properties, and in order to prevent the loss and dissipation of the Jardelezas real
and personal assets, there was a need for a court-appointed guardian to administer
said properties. It was prayed therein that Letters of Guardianship be issued in favor
of herein private respondent Gilda Ledesma Jardeleza, wife of Dr. Ernesto Jardeleza,
Sr. It was further prayed that in the meantime, no property of Dr. Ernesto Jardeleza,
Sr. be negotiated, mortgaged or otherwise alienated to third persons, particularly Lot
No. 4291 and all the improvements thereon, located along Bonifacio Drive, Iloilo
City, and covered by T.C.T. No. 47337.
A few days later, or on June 13, 1991, respondent Gilda L. Jardeleza herself
filed a petition docketed as Special Proceeding NO. 4691, before Branch 32 of the
R.T.C. of Iloilo City, regarding the declaration of incapacity of Ernesto Jardeleza, Sr.,
assumption of sole powers of administration of conjugal properties, and
authorization to sell the same (Annex B). Therein, the petitioner Gilda L. Jardeleza
averred the physical and mental incapacity of her husband, who was then confined
for intensive medical care and treatment at the Iloilo Doctors Hospital. She signified
to the court her desire to assume sole powers of administration of their conjugal
properties. She also alleged that her husbands medical treatment and
hospitalization expenses were piling up, accumulating to several hundred thousands
of pesos already. For this, she urgently needed to sell one piece of real property,
specifically Lot No. 4291 and its improvements. Thus, she prayed for authorization

from the court to sell said property.

The following day, June 14, 1991, Branch 32 of the R.T.C. of Iloilo City issued an
Order (Annex C) finding the petition in Spec. Proc. No. 4691 to be sufficient in form
and substance, and setting the hearing thereof for June 20, 1991. The scheduled
hearing of the petition proceeded, attended by therein petitioner Gilda Jardeleza, her
counsel, her two children, namely Ernesto Jardeleza, Jr., and Glenda Jardeleza Uy,
and Dr. Rolando Padilla, one of Ernesto Jardeleza, Sr.s attending physicians.
On that same day, June 20, 1991, Branch 32 of the RTC of Iloilo City rendered
its Decision (Annex D), finding that it was convinced that Ernesto Jardeleza, Sr. was
truly incapacitated to participate in the administration of the conjugal properties,
and that the sale of Lot No. 4291 and the improvements thereon was necessary to
defray the mounting expenses for treatment and Hospitalization. The said court also
made the pronouncement that the petition filed by Gilda L. Jardeleza was pursuant
to Article 124 of the Family Code, and that the proceedings thereon are governed by
the rules on summary proceedings sanctioned under Article 253 of the same Code x
x x.
The said court then disposed as follows:
WHEREFORE, there being factual and legal bases to the petition
dated June 13, 1991, the Court hereby renders judgment as follows:
1) declaring Ernesto Jardeleza, Sr., petitioners husband, to be
incapacitated and unable to participate in the administration of conjugal
properties;
2) authorizing petitioner Gilda L. Jardeleza to assume sole powers of
administration of their conjugal properties; and
3) authorizing aforesaid petitioner to sell Lot No. 4291 of the
Cadastral Survey of Iloilo, situated in Iloilo City and covered by TCT No.
47337 issued in the names of Ernesto Jardeleza, Sr. and Gilda L. Jardeleza
and the buildings standing thereof.
SO ORDERED.
On June 24, 1991, herein petitioner Teodoro Jardeleza filed his Opposition to the
proceedings before Branch 32 in Spec. Proc. Case No. 4691, said petitioner being
unaware and not knowing that a decision has already been rendered on the case by
public respondent.
On July 3, 1991, herein petitioner Teodoro Jardeleza filed a motion for
reconsideration of the judgment in Spec. Proc. No. 4691 and a motion for
consolidation of the two cases (Annex F). He propounded the argument that the
petition for declaration of incapacity, assumption of sole powers of administration,
and authority to sell the conjugal properties was essentially a petition for
guardianship of the person and properties of Ernesto Jardeleza, Sr. As such, it cannot
be prosecuted in accordance with the provisions on summary proceedings set out in
Article 253 of the Family Code. It should follow the rules governing special
proceedings in the Revised Rules of Court which require procedural due process,
particularly the need for notice and a hearing on the merits. On the other hand,
even if Gilda Jardelezas petition can be prosecuted by summary proceedings, there
was still a failure to comply with the basic requirements thereof, making the decision
in Spec. Proc. No. 4691 a defective one. He further alleged that under the New Civil
Code, Ernesto Jardeleza, Sr. had acquired vested rights as a conjugal partner, and
that these rights cannot be impaired or prejudiced without his consent. Neither can
he be deprived of his share in the conjugal properties through mere summary

98

proceedings. He then restated his position that Spec. Proc. No. 4691 should be
consolidated with Spec. Proc. No. 4689 which was filed earlier and pending before
Branch 25.
Teodoro Jardeleza also questioned the propriety of the sale of Lot No. 4291 and
the improvements thereon supposedly to pay the accumulated financial obligations
arising from Ernesto Jardeleza, Sr.s hospitalization. He alleged that the market value
of the property would be around Twelve to Fifteen Million Pesos, but that he had
been informed that it would be sold for much less. He also pointed out that the
building thereon which houses the Jardeleza Clinic is a monument to Ernesto
Jardeleza Sr.s industry, labor and service to his fellowmen. Hence, the said property
has a lot of sentimental value to his family. Besides, argued Teodoro Jardeleza, then
conjugal partnership had other liquid assets to pay off all financial obligations. He
mentioned that apart from sufficient cash, Jardeleza, Sr. owned stocks of Iloilo
Doctors Hospital which can be off-set against the cost of medical and hospital bills.
Furthermore, Ernesto Jardeleza, Sr. enjoys certain privileges at the said hospital
which allows him to pay on installment basis. Moreover, two of Ernesto Jardeleza Sr.s
attending physicians are his own sons who do not charge anything for their
professional services.
On July 4, 1991, Teodoro Jardeleza filed in Spec. Proc. No. 4691 a supplement to
his motion for reconsideration (Annex G). He reiterated his contention that summary
proceedings was irregularly applied. He also noted that the provisions on summary
proceedings found in Chapter 2 of the Family Code comes under the heading on
Separation in Fact Between Husband and Wife which contemplates of a situation
where both spouses are of disposing mind. Thus, he argued that were one spouse is
comatose without motor and mental faculties, the said provisions cannot be made to
apply.
While the motion for reconsideration was pending, Gilda Jardeleza disposed by
absolute sale Lot No. 4291 and all its improvements to her daughter, Ma. Glenda
Jardeleza Uy, for Eight Million Pesos (P8,000,000.00), as evidenced by a Deed
Absolute Sale dated July 8, 1991 executed between them (p. 111, Rollo). Under date
of July 23, 1991, Gilda Jardeleza filed an urgent ex-parte motion for approval of the
deed of absolute sale.
On August 12, 1991 Teodoro Jardeleza filed his Opposition to the motion for
approval of the deed of sale on the grounds that: (1) the motion was prematurely
filed and should be held in abeyance until the final resolution of the petition; (2) the
motion does not allege nor prove the justifications for the sale; and (3) the motion
does not allege that had Ernesto Jardeleza, Sr. been competent, he would have given
his consent to the sale.
Judge Amelita K. del Rosario-Benedicto of Branch 32 of the respondent Court,
who had penned the decision in Spec. Proc. No. 4691 had in the meantime formally
inhibited herself from further acting in this case (Annex I). The case was then
reraffled to Branch 28 of the said court.
On December 19, 1991, the said court issued an Order (Annex M) denying
herein petitioners motion for reconsideration and approving respondent Jardelezas
motion for approval of the deed of absolute sale. The said court ruled that:
After a careful and thorough perusal of the decision, dated June 20, 1991,
the Motion for Reconsideration, as well as its supplements filed by
oppositor, Teodoro L. Jardeleza, through counsel, and the opposition to the
Motion for Reconsideration, including its supplements, filed by petitioner,

through counsel, this Court is of the opinion and so holds, that her Honor,
Amelita K. del Rosario-Benedicto, Presiding Judge of Branch 32, of this
Court, has properly observed the procedure embodied under Article 253,
in relation to Article 124, of the Family Code, in rendering her decision
dated June 20, 1991.
Also, as correctly stated by petitioner, through counsel, that
oppositor Teodor L. Jardeleza does not have the personality to oppose the
instant petition considering that the property or properties, subject of the
petition, belongs to the conjugal partnership of the spouses Ernesto and
Gilda Jardeleza, who are both still alive.
In view thereof, the Motion for Reconsideration of oppositor Teodoro
L. Jardeleza, is hereby denied for lack of merit.
Considering the validity of the decision dated June 20, 1991, which
among others, authorized Gilda L. Jardeleza to sell Lot No. 4291 of the
Cadastral Survey of Iloilo, covered by Transfer Certificate of Title No.
47337 issued in the names of Ernesto Jardeleza, Sr., and Gilda L. Jardeleza
and the building standing thereon, the Urgent Ex-Parte Motion for
Approval of Deed of Absolute Sale dated July 23, 1991, filed by petitioner,
through counsel, is hereby granted and the deed of absolute sale,
executed and notarized on July 8, 1991, by and between Gilda L.
Jardeleza, as vendor, and Ma. Glenda Jardeleza, as vendee, is hereby
approved, and the Register of Deeds of Iloilo City, is directed to register
the sale and issue the corresponding transfer certificate of title to the
vendee.
SO ORDERED.lii
On December 9, 1992, the Court of Appeals promulgated its decision reversing
the appealed decision and ordering the trial court to dismiss the special proceedings
to approve the deed of sale, which was also declared void. liii
On December 29, 1992, petitioners filed a motion for reconsideration, liv
however, on March 29, 1993, the Court of Appeals denied the motion, finding no
cogent and compelling reason to disturb the decision.lv
Hence, this appeal.lvi
The issue raised is whether petitioner Gilda L. Jardeleza as the wife of Ernesto
Jardeleza, Sr. who suffered a stroke, a cerebrovascular accident, rendering him
comatose, without motor and mental faculties, and could not manage their conjugal
partnership property may assume sole powers of administration of the conjugal
property under Article 124 of the Family Code and dispose of a parcel of land with its
improvements, worth more than twelve million pesos, with the approval of the court
in a summary proceedings, to her co-petitioners, her own daughter and son-in-law,
for the amount of eight million pesos.
The Court of Appeals ruled that in the condition of Dr. Ernesto Jardeleza, Sr.,
the procedural rules on summary proceedings in relation to Article 124 of the Family
Code are not applicable. Because Dr. Jardeleza, Sr. was unable to take care of
himself and manage the conjugal property due to illness that had rendered him
comatose, the proper remedy was the appointment of a judicial guardian of the
person or estate or both of such incompetent, under Rule 93, Section 1, 1964
Revised Rules of Court. Indeed, petitioner earlier had filed such a petition for judicial
guardianship.
Article 124 of the Family Code provides as follows:

99

ART. 124. The administration and enjoyment of the conjugal partnership

property shall belong to both spouses jointly. In case of disagreement, the husbands
decision shall prevail, subject to recourse to the court by the wife for a proper
remedy which must be availed of within five years from the date of the contract
implementing such decision.
In the event that one spouse is incapacitated or otherwise unable to participate
in the administration of the conjugal properties, the other spouse may assume sole
powers of administration. These powers do not include the powers of disposition or
encumbrance which must have the authority of the court or the written consent of
the other spouse. In the absence of such authority or consent, the disposition or
encumbrance shall be void. However, the transaction shall be construed as a
continuing offer on the part of the consenting spouse and the third person, and may
be perfected as a binding contract upon the acceptance by the other spouse or
authorization by the court before the offer is withdrawn by either or both offerors.
(165a).
In regular manner, the rules on summary judicial proceedings under the Family
Code govern the proceedings under Article 124 of the Family Code. The situation
contemplated is one where the spouse is absent, or separated in fact or has
abandoned the other or consent is withheld or cannot be obtained. Such rules do not
apply to cases where the non-consenting spouse is incapacitated or incompetent to
give consent. In this case, the trial court found that the subject spouse "is an
incompetent" who was in comatose or semi-comatose condition, a victim of stroke,
cerebrovascular accident, without motor and mental faculties, and with a diagnosis
of brain stem infarct.lvii In such case, the proper remedy is a judicial guardianship
proceedings under Rule 93 of the 1964 Revised Rules of Court.
Even assuming that the rules of summary judicial proceedings under the Family
Code may apply to the wife's administration of the conjugal property, the law
provides that the wife who assumes sole powers of administration has the same
powers and duties as a guardian under the Rules of Court.lviii
Consequently, a spouse who desires to sell real property as such administrator
of the conjugal property must observe the procedure for the sale of the wards estate
required of judicial guardians under Rule 95, 1964 Revised Rules of Court, not the
summary judicial proceedings under the Family Code.
In the case at bar, the trial court did not comply with the procedure under the
Revised Rules of Court. Indeed, the trial court did not even observe the requirements
of the summary judicial proceedings under the Family Code. Thus, the trial court did
not serve notice of the petition to the incapacitated spouse; it did not require him to
show cause why the petition should not be granted.
Hence, we agree with the Court of Appeals that absent an opportunity to be
heard, the decision rendered by the trial court is void for lack of due process. The
doctrine consistently adhered to by this Court is that a denial of due process suffices
to cast on the official act taken by whatever branch of the government the impress
of nullity.lix A decision rendered without due process is void ab initio and may be
attacked directly or collaterally.lx A decision is void for lack of due process if, as a
result, a party is deprived of the opportunity of being heard. lxi A void decision may
be assailed or impugned at any time either directly or collaterally, by means of a
separate action, or by resisting such decision in any action or proceeding where it is
invoked.lxii
WHEREFORE, the Court AFFIRMS the decision of the Court of Appeals in CA-G.

R. SP No. 26936, in toto.

Costs against petitioners.
SO ORDERED.

100

Subsequently, the RTC rendered a Decision99 dated October 10, 2005, the dispositive
portion of which provides:

SECOND DIVISION
BRIGIDO B. QUIAO,
Petitioner,

G.R. No 176556
Present:
CARPIO, J., Chairperson,
BRION,
PEREZ,
SERENO, and
REYES, JJ.

- versus -

RITA C. QUIAO, KITCHIE C. QUIAO, LOTIS C. QUIAO,

PETCHIE C. QUIAO, represented by their mother RITA
QUIAO,
Respondents.

Promulgated:
July 4, 2012

x-----------------------------------------------------------------------------------------x

WHEREFORE, viewed from the foregoing considerations, judgment is hereby

rendered declaring the legal separation of plaintiff Rita C. Quiao and
defendant-respondent Brigido B. Quiao pursuant to Article 55.
As such, the herein parties shall be entitled to live separately from each
other, but the marriage bond shall not be severed.
Except for Letecia C. Quiao who is of legal age, the three minor children,
namely, Kitchie, Lotis and Petchie, all surnamed Quiao shall remain under
the custody of the plaintiff who is the innocent spouse.
Further, except for the personal and real properties already foreclosed by
the RCBC, all the remaining properties, namely:
1.

DECISION

coffee mill in Balongagan, Las Nieves, Agusan del

Norte;

REYES, J.:

2.
coffee mill in Durian, Las Nieves, Agusan del Norte;
3.
corn mill in Casiklan, Las Nieves, Agusan del Norte;
4.
coffee mill in Esperanza, Agusan del Sur;
5.
a parcel of land with an area of 1,200 square meters
located in Tungao, Butuan City;
6.
a parcel of agricultural land with an area of 5
hectares located in Manila de Bugabos, Butuan City;
7.
a parcel of land with an area of 84 square meters
located in Tungao, Butuan City;
8.
Bashier Bon Factory located in Tungao, Butuan City;

The family is the basic and the most important institution of society. It is in
the family where children are born and molded either to become useful citizens of
the country or troublemakers in the community. Thus, we are saddened when
parents have to separate and fight over properties, without regard to the message
they send to their children. Notwithstanding this, we must not shirk from our
obligation to rule on this case involving legal separation escalating to questions on
dissolution and partition of properties.
The Case
This case comes before us via Petition for Review on Certiorari96 under Rule
45 of the Rules of Court. The petitioner seeks that we vacate and set aside the
Order97 dated January 8, 2007 of the Regional Trial Court (RTC), Branch 1, Butuan
City. In lieu of the said order, we are asked to issue a Resolution defining the net
profits subject of the forfeiture as a result of the decree of legal separation in
accordance with the provision of Article 102(4) of the Family Code, or alternatively,
in accordance with the provisions of Article 176 of the Civil Code.
Antecedent Facts
On October 26, 2000, herein respondent Rita C. Quiao (Rita) filed a
complaint for legal separation against herein petitioner Brigido B. Quiao (Brigido). 98

shall be divided equally between herein [respondents] and

[petitioner] subject to the respective legitimes of the children and
the payment of the unpaid conjugal liabilities of [P]45,740.00.
[Petitioners] share, however, of the net profits earned by
the conjugal partnership is forfeited in favor of the common
children.
He is further ordered to reimburse [respondents] the sum
of [P]19,000.00 as attorney's fees and litigation expenses of
[P]5,000.00[.]

96

SO ORDERED.100

97

99

98

100
101

Neither party filed a motion for reconsideration and appeal within the
period provided for under Section 17(a) and (b) of the Rule on Legal Separation. 101

On July 6, 2006, the writ was partially executed with the petitioner paying the
respondents the amount of P46,870.00, representing the following payments:

On December 12, 2005, the respondents filed a motion for execution 102
which the trial court granted in its Order dated December 16, 2005, the dispositive
portion of which reads:
Wherefore, finding the motion to be well taken, the same
is hereby granted. Let a writ of execution be issued for the
immediate enforcement of the Judgment.
SO ORDERED.103

Subsequently, on February 10, 2006, the RTC issued a Writ of Execution 104
which reads as follows:
NOW THEREFORE, that of the goods and chattels of the [petitioner]
BRIGIDO B. QUIAO you cause to be made the sums stated in the aforequoted DECISION [sic], together with your lawful fees in the service of this
Writ, all in the Philippine Currency.
But if sufficient personal property cannot be found whereof to satisfy this
execution and your lawful fees, then we command you that of the lands and
buildings of the said [petitioner], you make the said sums in the manner
required by law. You are enjoined to strictly observed Section 9, Rule 39,
Rule [sic] of the 1997 Rules of Civil Procedure.

(a) P22,870.00 as petitioner's share of the payment of the conjugal share;

(b) P19,000.00 as attorney's fees; and
(c) P5,000.00 as litigation expenses.106
On July 7, 2006, or after more than nine months from the promulgation of
the Decision, the petitioner filed before the RTC a Motion for Clarification, 107 asking
the RTC to define the term Net Profits Earned.
To resolve the petitioner's Motion for Clarification, the RTC issued an
Order108 dated August 31, 2006, which held that the phrase NET PROFIT EARNED
denotes the remainder of the properties of the parties after deducting the separate
properties of each [of the] spouse and the debts. 109 The Order further held that after
determining the remainder of the properties, it shall be forfeited in favor of the
common children because the offending spouse does not have any right to any
share of the net profits earned, pursuant to Articles 63, No. (2) and 43, No. (2) of the
Family Code.110 The dispositive portion of the Order states:
WHEREFORE, there is no blatant disparity when the sheriff intends to forfeit
all the remaining properties after deducting the payments of the debts for
only separate properties of the defendant-respondent shall be delivered to
him which he has none.
The Sheriff is herein directed to proceed with the
execution of the Decision.
IT IS SO ORDERED.111

You are hereby ordered to make a return of the said proceedings

immediately after the judgment has been satisfied in part or in full in
consonance with Section 14, Rule 39 of the 1997 Rules of Civil Procedure,
as amended.105

106

101

107

102

108

103

109

104

110

105

111
102

Not satisfied with the trial court's Order, the petitioner filed a Motion for
Reconsideration112 on September 8, 2006. Consequently, the RTC issued another
Order113 dated November 8, 2006, holding that although the Decision dated October
10, 2005 has become final and executory, it may still consider the Motion for
Clarification because the petitioner simply wanted to clarify the meaning of net
profit earned.114 Furthermore, the same Order held:
ALL TOLD, the Court Order dated August 31, 2006 is hereby ordered set
aside. NET PROFIT EARNED, which is subject of forfeiture in favor of [the]
parties' common children, is ordered to be computed in accordance [with]
par. 4 of Article 102 of the Family Code.115
On November 21, 2006, the respondents filed a Motion for
Reconsideration,116 praying for the correction and reversal of the Order dated
November 8, 2006. Thereafter, on January 8, 2007, 117 the trial court had changed its
ruling again and granted the respondents' Motion for Reconsideration whereby the
Order dated November 8, 2006 was set aside to reinstate the Order dated August
31, 2006.
Not satisfied with the trial court's Order, the petitioner filed on February 27,
2007 this instant Petition for Review under Rule 45 of the Rules of Court, raising the
following:
Issues
I
IS THE DISSOLUTION AND THE CONSEQUENT LIQUIDATION OF THE
COMMON PROPERTIES OF THE HUSBAND AND WIFE BY VIRTUE OF THE
DECREE OF LEGAL SEPARATION GOVERNED BY ARTICLE 125 (SIC) OF THE
FAMILY CODE?

112

II
WHAT IS THE MEANING OF THE NET PROFITS EARNED BY THE CONJUGAL
PARTNERSHIP FOR PURPOSES OF EFFECTING THE FORFEITURE AUTHORIZED
UNDER ARTICLE 63 OF THE FAMILY CODE?
III
WHAT LAW GOVERNS THE PROPERTY RELATIONS BETWEEN THE HUSBAND
AND WIFE WHO GOT MARRIED IN 1977? CAN THE FAMILY CODE OF THE
PHILIPPINES BE GIVEN RETROACTIVE EFFECT FOR PURPOSES OF
DETERMINING THE NET PROFITS SUBJECT OF FORFEITURE AS A RESULT OF
THE DECREE OF LEGAL SEPARATION WITHOUT IMPAIRING VESTED RIGHTS
ALREADY ACQUIRED UNDER THE CIVIL CODE?
IV
WHAT PROPERTIES SHALL BE INCLUDED IN THE FORFEITURE OF THE SHARE
OF THE GUILTY SPOUSE IN THE NET CONJUGAL PARTNERSHIP AS A RESULT
OF THE ISSUANCE OF THE DECREE OF LEGAL SEPARATION?118
Our Ruling
While the petitioner has raised a number of issues on the applicability of
certain laws, we are well-aware that the respondents have called our attention to
the fact that the Decision dated October 10, 2005 has attained finality when the
Motion for Clarification was filed.119 Thus, we are constrained to resolve first the
issue of the finality of the Decision dated October 10, 2005 and subsequently
discuss the matters that we can clarify.
The Decision dated October
10, 2005 has become final
and executory at the time
the Motion for Clarification
was filed on July 7, 2006.
Section 3, Rule 41 of the Rules of Court provides:

113
114
115

Section 3. Period of ordinary appeal. - The appeal shall be taken within

fifteen (15) days from notice of the judgment or final order appealed from.
Where a record on appeal is required, the appellant shall file a notice of
appeal and a record on appeal within thirty (30) days from notice of the
judgment or final order.

116

118

117

119
103

The period of appeal shall be interrupted by a timely motion for new trial or
reconsideration. No motion for extension of time to file a motion for new
trial or reconsideration shall be allowed.
In Neypes v. Court of Appeals,120 we clarified that to standardize the appeal periods
provided in the Rules and to afford litigants fair opportunity to appeal their cases, we
held that it would be practical to allow a fresh period of 15 days within which to file
the notice of appeal in the RTC, counted from receipt of the order dismissing a
motion for a new trial or motion for reconsideration. 121
In Neypes, we explained that the "fresh period rule" shall also apply to Rule
40 governing appeals from the Municipal Trial Courts to the RTCs; Rule 42 on
petitions for review from the RTCs to the Court of Appeals (CA); Rule 43 on appeals
from quasi-judicial agencies to the CA and Rule 45 governing appeals by certiorari to
the Supreme Court. We also said, The new rule aims to regiment or make the appeal
period uniform, to be counted from receipt of the order denying the motion for new
trial, motion for reconsideration (whether full or partial) or any final order or
resolution.122 In other words, a party litigant may file his notice of appeal within a
fresh 15-day period from his receipt of the trial court's decision or final order
denying his motion for new trial or motion for reconsideration. Failure to avail of the
fresh 15-day period from the denial of the motion for reconsideration makes the
decision or final order in question final and executory.
In the case at bar, the trial court rendered its Decision on October 10, 2005.
The petitioner neither filed a motion for reconsideration nor a notice of appeal. On
December 16, 2005, or after 67 days had lapsed, the trial court issued an order
granting the respondent's motion for execution; and on February 10, 2006, or after
123 days had lapsed, the trial court issued a writ of execution. Finally, when the writ
had already been partially executed, the petitioner, on July 7, 2006 or after 270 days
had lapsed, filed his Motion for Clarification on the definition of the net profits
earned. From the foregoing, the petitioner had clearly slept on his right to question
the RTCs Decision dated October 10, 2005. For 270 days, the petitioner never raised
a single issue until the decision had already been partially executed. Thus at the
time the petitioner filed his motion for clarification, the trial courts decision has
become final and executory. A judgment becomes final and executory when the
reglementary period to appeal lapses and no appeal is perfected within such period.
Consequently, no court, not even this Court, can arrogate unto itself appellate
jurisdiction to review a case or modify a judgment that became final. 123

The petitioner argues that the decision he is questioning is a void

judgment. Being such, the petitioner's thesis is that it can still be disturbed even
after 270 days had lapsed from the issuance of the decision to the filing of the
motion for clarification. He said that a void judgment is no judgment at all. It never
attains finality and cannot be a source of any right nor any obligation. 124 But what
precisely is a void judgment in our jurisdiction? When does a judgment becomes
void?
A judgment is null and void when the court which rendered it had no power
to grant the relief or no jurisdiction over the subject matter or over the parties or
both.125 In other words, a court, which does not have the power to decide a case or
that has no jurisdiction over the subject matter or the parties, will issue a void
judgment or a coram non judice.126
The questioned judgment does not fall within the purview of a void
judgment. For sure, the trial court has jurisdiction over a case involving legal
separation. Republic Act (R.A.) No. 8369 confers upon an RTC, designated as the
Family Court of a city, the exclusive original jurisdiction to hear and decide, among
others, complaints or petitions relating to marital status and property relations of the
husband and wife or those living together. 127 The Rule on Legal Separation 128
provides that the petition [for legal separation] shall be filed in the Family Court of
the province or city where the petitioner or the respondent has been residing for at
least six months prior to the date of filing or in the case of a non-resident
respondent, where he may be found in the Philippines, at the election of the
petitioner.129 In the instant case, herein respondent Rita is found to reside in Tungao,
Butuan City for more than six months prior to the date of filing of the petition; thus,
the RTC, clearly has jurisdiction over the respondent's petition below. Furthermore,

123
124
125
126

120

127

121

128

122

129
104

the RTC also acquired jurisdiction over the persons of both parties, considering that
summons and a copy of the complaint with its annexes were served upon the herein
petitioner on December 14, 2000 and that the herein petitioner filed his Answer to
the Complaint on January 9, 2001. 130 Thus, without doubt, the RTC, which has
rendered the questioned judgment, has jurisdiction over the complaint and the
persons of the parties.
From the aforecited facts, the questioned October 10, 2005 judgment of the
trial court is clearly not void ab initio, since it was rendered within the ambit of the
court's jurisdiction. Being such, the same cannot anymore be disturbed, even if the
modification is meant to correct what may be considered an erroneous conclusion of
fact or law.131 In fact, we have ruled that for [as] long as the public respondent acted
with jurisdiction, any error committed by him or it in the exercise thereof will amount
to nothing more than an error of judgment which may be reviewed or corrected only
by appeal.132 Granting without admitting that the RTC's judgment dated October 10,
2005 was erroneous, the petitioner's remedy should be an appeal filed within the
reglementary period. Unfortunately, the petitioner failed to do this. He has already
lost the chance to question the trial court's decision, which has become immutable
and unalterable. What we can only do is to clarify the very question raised below
and nothing more.
For our convenience, the following matters cannot anymore be disturbed
since the October 10, 2005 judgment has already become immutable and
unalterable, to wit:
(a) The finding that the petitioner is the offending spouse since he
cohabited with a woman who is not his wife; 133

(g) The revocation of provisions in favor of the offending spouse made in

the will of the innocent spouse;139
(h) The holding that the property relation of the parties is conjugal
partnership of gains and pursuant to Article 116 of the Family Code, all properties
acquired during the marriage, whether acquired by one or both spouses, is
presumed to be conjugal unless the contrary is proved; 140
(i) The finding that the spouses acquired their real and personal properties
while they were living together;141
(j) The list of properties which Rizal Commercial Banking Corporation
(RCBC) foreclosed;142

132
133
134
135

(b) The trial court's grant of the petition for legal separation of respondent

136

(c) The dissolution and liquidation of the conjugal partnership; 135

137

Rita;134

(d) The forfeiture of the petitioner's right to any share of the net profits
earned by the conjugal partnership;136
(e) The award to the innocent spouse of the minor children's custody;

138

137

(f) The disqualification of the offending spouse from inheriting from the
innocent spouse by intestate succession;138

139
140

130

141

131

142
105

(k) The list of the remaining properties of the couple which must be
dissolved and liquidated and the fact that respondent Rita was the one who took
charge of the administration of these properties; 143
(l) The holding that the conjugal partnership shall be liable to matters
included under Article 121 of the Family Code and the conjugal liabilities totaling
P503,862.10 shall be charged to the income generated by these properties; 144
(m) The fact that the trial court had no way of knowing whether the
petitioner had separate properties which can satisfy his share for the support of the
family;145

After discussing lengthily the immutability of the Decision dated October

10, 2005, we will discuss the following issues for the enlightenment of the parties
and the public at large.

Article 129 of the Family

Code applies to the present
case since the parties'
property
relation
is
governed by the system of
relative
community
or
conjugal
partnership
of
gains.

(n) The holding that the applicable law in this case is Article 129(7); 146
(o) The ruling that the remaining properties not subject to any
encumbrance shall therefore be divided equally between the petitioner and the
respondent without prejudice to the children's legitime;147
(p) The holding that the petitioner's share of the net profits earned by the
conjugal partnership is forfeited in favor of the common children; 148 and
(q) The order to the petitioner to reimburse the respondents the sum of
P19,000.00 as attorney's fees and litigation expenses of P5,000.00.149

143

The petitioner claims that the court a quo is wrong when it applied Article
129 of the Family Code, instead of Article 102. He confusingly argues that Article
102 applies because there is no other provision under the Family Code which defines
net profits earned subject of forfeiture as a result of legal separation.
Offhand, the trial court's Decision dated October 10, 2005 held that Article
129(7) of the Family Code applies in this case. We agree with the trial court's
holding.
First, let us determine what governs the couple's property relation. From
the record, we can deduce that the petitioner and the respondent tied the marital
knot on January 6, 1977. Since at the time of the exchange of marital vows, the
operative law was the Civil Code of the Philippines (R.A. No. 386) and since they did
not agree on a marriage settlement, the property relations between the petitioner
and the respondent is the system of relative community or conjugal partnership of
gains.150 Article 119 of the Civil Code provides:

144

Art. 119. The future spouses may in the marriage

settlements agree upon absolute or relative community of
property, or upon complete separation of property, or upon any
other regime. In the absence of marriage settlements, or when the
same are void, the system of relative community or conjugal
partnership of gains as established in this Code, shall govern the
property relations between husband and wife.

145
146
147
148

Thus, from the foregoing facts and law, it is clear that what governs the
property relations of the petitioner and of the respondent is conjugal partnership of
gains. And under this property relation, the husband and the wife place in a common
fund the fruits of their separate property and the income from their work or

149

150
106

industry.151 The husband and wife also own in common all the property of the
conjugal partnership of gains.152

right by virtue of Article 256 of the Family Code which prohibits retroactive
application of the Family Code when it will prejudice a person's vested right.

Second, since at the time of the dissolution of the petitioner and the
respondent's marriage the operative law is already the Family Code, the same
applies in the instant case and the applicable law in so far as the liquidation of the
conjugal partnership assets and liabilities is concerned is Article 129 of the Family
Code in relation to Article 63(2) of the Family Code. The latter provision is applicable
because according to Article 256 of the Family Code [t]his Code shall have
retroactive effect insofar as it does not prejudice or impair vested or acquired rights
in accordance with the Civil Code or other law. 153

However, the petitioner's claim of vested right is not one which is written
on stone. In Go, Jr. v. Court of Appeals,156 we define and explained vested right in the
following manner:

Now, the petitioner asks: Was his vested right over half of the common
properties of the conjugal partnership violated when the trial court forfeited them in
favor of his children pursuant to Articles 63(2) and 129 of the Family Code?

A vested right is one whose existence, effectivity and extent do not depend
upon events foreign to the will of the holder, or to the exercise of which no
obstacle exists, and which is immediate and perfect in itself and not
dependent upon a contingency. The term vested right expresses the
concept of present fixed interest which, in right reason and natural justice,
should be protected against arbitrary State action, or an innately just and
imperative right which enlightened free society, sensitive to inherent and
irrefragable individual rights, cannot deny.

We respond in the negative.

Indeed, the petitioner claims that his vested rights have been impaired,
arguing: As earlier adverted to, the petitioner acquired vested rights over half of the
conjugal properties, the same being owned in common by the spouses. If the
provisions of the Family Code are to be given retroactive application to the point of
authorizing the forfeiture of the petitioner's share in the net remainder of the
conjugal partnership properties, the same impairs his rights acquired prior to the
effectivity of the Family Code.154 In other words, the petitioner is saying that since
the property relations between the spouses is governed by the regime of Conjugal
Partnership of Gains under the Civil Code, the petitioner acquired vested rights over
half of the properties of the Conjugal Partnership of Gains, pursuant to Article 143 of
the Civil Code, which provides: All property of the conjugal partnership of gains is
owned in common by the husband and wife. 155 Thus, since he is one of the owners of
the properties covered by the conjugal partnership of gains, he has a vested right
over half of the said properties, even after the promulgation of the Family Code; and
he insisted that no provision under the Family Code may deprive him of this vested

To be vested, a right must have become a titlelegal or

equitableto the present or future enjoyment of property. 157
(Citations omitted)

In our en banc Resolution dated October 18, 2005 for ABAKADA Guro Party
List Officer Samson S. Alcantara, et al. v. The Hon. Executive Secretary Eduardo R.
Ermita,158 we also explained:
The concept of vested right is a consequence of the constitutional
guaranty of due process that expresses a present fixed interest which in
right reason and natural justice is protected against arbitrary state action; it
includes not only legal or equitable title to the enforcement of a demand
but also exemptions from new obligations created after the right has
become vested. Rights are considered vested when the right to enjoyment
is a present interest, absolute, unconditional, and perfect or fixed and
irrefutable.159 (Emphasis and underscoring supplied)

151
152

156

153

157

154

158

155

159
107

From the foregoing, it is clear that while one may not be deprived of his
vested right, he may lose the same if there is due process and such deprivation is
founded in law and jurisprudence.
In the present case, the petitioner was accorded his right to due process.
First, he was well-aware that the respondent prayed in her complaint that all of the
conjugal properties be awarded to her. 160 In fact, in his Answer, the petitioner prayed
that the trial court divide the community assets between the petitioner and the
respondent as circumstances and evidence warrant after the accounting and
inventory of all the community properties of the parties. 161 Second, when the
Decision dated October 10, 2005 was promulgated, the petitioner never questioned
the trial court's ruling forfeiting what the trial court termed as net profits, pursuant
to Article 129(7) of the Family Code.162 Thus, the petitioner cannot claim being
deprived of his right to due process.
Furthermore, we take note that the alleged deprivation of the petitioner's
vested right is one founded, not only in the provisions of the Family Code, but in
Article 176 of the Civil Code. This provision is like Articles 63 and 129 of the Family
Code on the forfeiture of the guilty spouse's share in the conjugal partnership
profits. The said provision says:
Art. 176. In case of legal separation, the guilty spouse
shall forfeit his or her share of the conjugal partnership profits,
which shall be awarded to the children of both, and the children of
the guilty spouse had by a prior marriage. However, if the conjugal
partnership property came mostly or entirely from the work or
industry, or from the wages and salaries, or from the fruits of the
separate property of the guilty spouse, this forfeiture shall not
apply.
In case there are no children, the innocent spouse shall
be entitled to all the net profits.

From the foregoing, the petitioner's claim of a vested right has no basis
considering that even under Article 176 of the Civil Code, his share of the conjugal
partnership profits may be forfeited if he is the guilty party in a legal separation
case. Thus, after trial and after the petitioner was given the chance to present his
evidence, the petitioner's vested right claim may in fact be set aside under the Civil
Code since the trial court found him the guilty party.

More, in Abalos v. Dr. Macatangay, Jr.,163 we reiterated our long-standing

ruling that:
[P]rior to the liquidation of the conjugal partnership, the interest of each
spouse in the conjugal assets is inchoate, a mere expectancy, which
constitutes neither a legal nor an equitable estate, and does not ripen into
title until it appears that there are assets in the community as a result of
the liquidation and settlement. The interest of each spouse is limited to the
net remainder or remanente liquido (haber ganancial) resulting from the
liquidation of the affairs of the partnership after its dissolution. Thus, the
right of the husband or wife to one-half of the conjugal assets does not vest
until the dissolution and liquidation of the conjugal partnership, or after
dissolution of the marriage, when it is finally determined that, after
settlement of conjugal obligations, there are net assets left which can be
divided between the spouses or their respective heirs. 164 (Citations omitted)

Finally, as earlier discussed, the trial court has already decided in its
Decision dated October 10, 2005 that the applicable law in this case is Article 129(7)
of the Family Code.165 The petitioner did not file a motion for reconsideration nor a
notice of appeal. Thus, the petitioner is now precluded from questioning the trial
court's decision since it has become final and executory. The doctrine of
immutability and unalterability of a final judgment prevents us from disturbing the
Decision dated October 10, 2005 because final and executory decisions can no
longer be reviewed nor reversed by this Court. 166
From the above discussions, Article 129 of the Family Code clearly applies
to the present case since the parties' property relation is governed by the system of
relative community or conjugal partnership of gains and since the trial court's
Decision has attained finality and immutability.
The net profits of the
conjugal
partnership
of
gains are all the fruits of
the separate properties of

163

160

164

161

165

162

166
108

the
spouses
and
the
products of their labor and
industry.

The petitioner inquires from us the meaning of net profits earned by the
conjugal partnership for purposes of effecting the forfeiture authorized under Article
63 of the Family Code. He insists that since there is no other provision under the
Family Code, which defines net profits earned subject of forfeiture as a result of legal
separation, then Article 102 of the Family Code applies.
What does Article 102 of the Family Code say? Is the computation of net
profits earned in the conjugal partnership of gains the same with the computation of
net profits earned in the absolute community?
Now, we clarify.
First and foremost, we must distinguish between the applicable law as to
the property relations between the parties and the applicable law as to the definition
of net profits. As earlier discussed, Article 129 of the Family Code applies as to the
property relations of the parties. In other words, the computation and the succession
of events will follow the provisions under Article 129 of the said Code. Moreover, as
to the definition of net profits, we cannot but refer to Article 102(4) of the Family
Code, since it expressly provides that for purposes of computing the net profits
subject to forfeiture under Article 43, No. (2) and Article 63, No. (2), Article 102(4)
applies. In this provision, net profits shall be the increase in value between the
market value of the community property at the time of the celebration of the
marriage and the market value at the time of its dissolution. 167 Thus, without any
iota of doubt, Article 102(4) applies to both the dissolution of the absolute
community regime under Article 102 of the Family Code, and to the dissolution of
the conjugal partnership regime under Article 129 of the Family Code. Where lies the
difference? As earlier shown, the difference lies in the processes used under the
dissolution of the absolute community regime under Article 102 of the Family Code,
and in the processes used under the dissolution of the conjugal partnership regime
under Article 129 of the Family Code.
Let us now discuss the difference in the processes between the absolute
community regime and the conjugal partnership regime.
On Absolute Community Regime:
When a couple enters into a regime of absolute community, the
husband and the wife becomes joint owners of all the properties of the marriage.
Whatever property each spouse brings into the marriage, and those acquired during
the marriage (except those excluded under Article 92 of the Family Code) form the
common mass of the couple's properties. And when the couple's marriage or

167

community is dissolved, that common mass is divided between the spouses, or their
respective heirs, equally or in the proportion the parties have established,
irrespective of the value each one may have originally owned.168
Under Article 102 of the Family Code, upon dissolution of marriage, an
inventory is prepared, listing separately all the properties of the absolute community
and the exclusive properties of each; then the debts and obligations of the absolute
community are paid out of the absolute community's assets and if the community's
properties are insufficient, the separate properties of each of the couple will be
solidarily liable for the unpaid balance. Whatever is left of the separate properties
will be delivered to each of them. The net remainder of the absolute community is
its net assets, which shall be divided between the husband and the wife; and for
purposes of computing the net profits subject to forfeiture, said profits shall be the
increase in value between the market value of the community property at the time
of the celebration of the marriage and the market value at the time of its
dissolution.169
Applying Article 102 of the Family Code, the net profits requires that we
first find the market value of the properties at the time of the community's
dissolution. From the totality of the market value of all the properties, we subtract
the debts and obligations of the absolute community and this result to the net
assets or net remainder of the properties of the absolute community, from which we
deduct the market value of the properties at the time of marriage, which then
results to the net profits.170
Granting without admitting that Article 102 applies to the instant case, let
us see what will happen if we apply Article 102:
(a) According to the trial court's finding of facts, both husband and wife
have no separate properties, thus, the remaining properties in the list above are all
part of the absolute community. And its market value at the time of the dissolution
of the absolute community constitutes the market value at dissolution.
(b) Thus, when the petitioner and the respondent finally were legally
separated, all the properties which remained will be liable for the debts and
obligations of the community. Such debts and obligations will be subtracted from the
market value at dissolution.
(c) What remains after the debts and obligations have been paid from the
total assets of the absolute community constitutes the net remainder or net asset.

168
169
170
109

And from such net asset/remainder of the petitioner and respondent's remaining
properties, the market value at the time of marriage will be subtracted and the
resulting totality constitutes the net profits.

(2) Amounts advanced by the conjugal partnership in

payment of personal debts and obligations of either spouse shall
be credited to the conjugal partnership as an asset thereof.

(d) Since both husband and wife have no separate properties, and
nothing would be returned to each of them, what will be divided equally between
them is simply the net profits. However, in the Decision dated October 10, 2005, the
trial court forfeited the half-share of the petitioner in favor of his children. Thus, if we
use Article 102 in the instant case (which should not be the case), nothing is left to
the petitioner since both parties entered into their marriage without bringing with
them any property.

(3) Each spouse shall be reimbursed for the use of his or

her exclusive funds in the acquisition of property or for the value
of his or her exclusive property, the ownership of which has been
vested by law in the conjugal partnership.

On Conjugal Partnership Regime:

Before we go into our disquisition on the Conjugal Partnership Regime, we
make it clear that Article 102(4) of the Family Code applies in the instant case for
purposes only of defining net profit. As earlier explained, the definition of net
profits in Article 102(4) of the Family Code applies to both the absolute community
regime and conjugal partnership regime as provided for under Article 63, No. (2) of
the Family Code, relative to the provisions on Legal Separation.
Now, when a couple enters into a regime of conjugal partnership of
gains under Article 142 of the Civil Code, the husband and the wife place in
common fund the fruits of their separate property and income from their work or
industry, and divide equally, upon the dissolution of the marriage or of the
partnership, the net gains or benefits obtained indiscriminately by either spouse
during the marriage.171 From the foregoing provision, each of the couple has his and
her own property and debts. The law does not intend to effect a mixture or merger
of those debts or properties between the spouses. Rather, it establishes a complete
separation of capitals.172
Considering that the couple's marriage has been dissolved under the Family
Code, Article 129 of the same Code applies in the liquidation of the couple's
properties in the event that the conjugal partnership of gains is dissolved, to wit:
Art. 129. Upon the dissolution of the conjugal partnership
regime, the following procedure shall apply:
(1) An inventory shall be prepared, listing separately all
the properties of the conjugal partnership and the exclusive
properties of each spouse.

171

(4) The debts and obligations of the conjugal partnership

shall be paid out of the conjugal assets. In case of insufficiency of
said assets, the spouses shall be solidarily liable for the unpaid
balance with their separate properties, in accordance with the
provisions of paragraph (2) of Article 121.
(5) Whatever remains of the exclusive properties of the
spouses shall thereafter be delivered to each of them.

(6) Unless the owner had been indemnified from

whatever source, the loss or deterioration of movables used for
the benefit of the family, belonging to either spouse, even due to
fortuitous event, shall be paid to said spouse from the conjugal
funds, if any.
(7) The net remainder of the conjugal partnership
properties shall constitute the profits, which shall be divided
equally between husband and wife, unless a different proportion or
division was agreed upon in the marriage settlements or unless
there has been a voluntary waiver or forfeiture of such share as
provided in this Code.
(8) The presumptive legitimes of the common children
shall be delivered upon the partition in accordance with Article 51.
(9) In the partition of the properties, the conjugal dwelling
and the lot on which it is situated shall, unless otherwise agreed
upon by the parties, be adjudicated to the spouse with whom the
majority of the common children choose to remain. Children below
the age of seven years are deemed to have chosen the mother,
unless the court has decided otherwise. In case there is no such
majority, the court shall decide, taking into consideration the best
interests of said children.

In the normal course of events, the following are the steps in the liquidation
of the properties of the spouses:

172
110

(a) An inventory of all the actual properties shall be made, separately

listing the couple's conjugal properties and their separate properties. 173 In the
instant case, the trial court found that the couple has no separate
properties when they married.174 Rather, the trial court identified the following
conjugal properties, to wit:
1. coffee mill in Balongagan, Las Nieves, Agusan del Norte;
2. coffee mill in Durian, Las Nieves, Agusan del Norte;
3. corn mill in Casiklan, Las Nieves, Agusan del Norte;
4. coffee mill in Esperanza, Agusan del Sur;
5. a parcel of land with an area of 1,200 square meters located in
Tungao, Butuan City;
6. a parcel of agricultural land with an area of 5 hectares located
in Manila de Bugabos, Butuan City;
7. a parcel of land with an area of 84 square meters located in
Tungao, Butuan City;
8. Bashier Bon Factory located in Tungao, Butuan City. 175

(b) Ordinarily, the benefit received by a spouse from the conjugal

partnership during the marriage is returned in equal amount to the assets of the
conjugal partnership;176 and if the community is enriched at the expense of the
separate properties of either spouse, a restitution of the value of such properties to
their respective owners shall be made.177

(c) Subsequently, the couple's conjugal partnership shall pay the debts of
the conjugal partnership; while the debts and obligation of each of the spouses shall
be paid from their respective separate properties. But if the conjugal partnership is
not sufficient to pay all its debts and obligations, the spouses with their separate
properties shall be solidarily liable.178
(d) Now, what remains of the separate or exclusive properties of the
husband and of the wife shall be returned to each of them. 179 In the instant case,
since it was already established by the trial court that the spouses have no
separate properties,180 there is nothing to return to any of them. The listed
properties above are considered part of the conjugal partnership. Thus, ordinarily,
what remains in the above-listed properties should be divided equally between the
spouses and/or their respective heirs.181 However, since the trial court found the
petitioner the guilty party, his share from the net profits of the conjugal partnership
is forfeited in favor of the common children, pursuant to Article 63(2) of the Family
Code. Again, lest we be confused, like in the absolute community regime, nothing
will be returned to the guilty party in the conjugal partnership regime, because
there is no separate property which may be accounted for in the guilty
party's favor.
In the discussions above, we have seen that in both instances, the
petitioner is not entitled to any property at all. Thus, we cannot but uphold the
Decision dated October 10, 2005 of the trial court. However, we must clarify, as we
already did above, the Order dated January 8, 2007.
WHEREFORE, the Decision dated October 10, 2005 of the Regional Trial
Court, Branch 1 of Butuan City is AFFIRMED. Acting on the Motion for Clarification
dated July 7, 2006 in the Regional Trial Court, the Order dated January 8, 2007 of the
Regional Trial Court is hereby CLARIFIED in accordance with the above discussions.
SO ORDERED.

173
174

178

175

179

176

180

177

181
111

SECOND DIVISION
G.R. Nos. 78583-4 March 26, 1990
BENIGNO TODA, JR., petitioner,
vs.
COURT OF APPEALS and ROSE MARIE TUASON-TODA, respondents.
G.R. Nos.78696-7 March 26,1990
ROSE MARIE TUASON-TODA, petitioner,
vs.
BENIGNO TODA, JR., respondent.
Bautista, Picazo, Buyco, Tan & Fider for Benigno Toda, Jr. Belo, Abiera & Associates
for petitioner Rose Marie Tuason Toda.
REGALADO, J.:
These consolidated cases seek a review of the decision of the Court of Appeals
promulgated on January 29,1987 1 in CA-G.R. CV Nos. 06675 and 07936, the
dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered:
1. Ordering the payment of the cash dividends declared on July 1, 1981 amounting
to P2,191.62 and those declared on July 25, 1981 amounting to P40,196.12 to Rose
Marie Toda as her separate property. The cash dividends declared on April 25, 1981
amounting to P37,196.30 (sic) are hereby adjudicated to Benigno Toda, Jr. as his
share in the conjugal partnership assets; the portion of the order dated November 2,
1981 with respect to the payment of the amount of P360,095.12 to Rose Marie T.
Toda is set aside;
2. Ordering the payment of the amount of P4,1623,982.24 to Rose Marie Toda
representing the balance of P15, 749,135.32 obligated to be paid as estate taxes by
Benigno Toda, Jr.;
3. Setting aside the order of the lower court dated June 2, 1982 directing Benigno
Toda, Jr. to pay interest and non-payment penalty of 18% and 5%, respectively; and
4. Setting aside the order of the lower court directing the annotation of lien on the
property of Benigno Toda, Jr.
SO ORDERED.
Benigno Toda, Jr. (Benigno for brevity) and Rose Marie Tuason-Toda (Rose Marie for
brevity) were married on June 9, 1951 and were blessed with two children. Individual
differences and the alleged infidelity of Benigno, however, marred the conjugal
union thereby prompting Rose Marie to file on December 18, 1979 in the former
Court of First Instance of Rizal, 2 as Civil Case No. 35566, a petition for termination of
conjugal partnership for alleged mismanagement and dissipation of conjugal funds
against Benigno.
After hearings were held, the parties in order to avoid further "disagreeable
proceedings," filed on April 1, 1981 a joint petition forjudicial approval of dissolution
of conjugal partnership under Article 191 of the Civil Code, docketed as Special
Proceeding No. 9478, 3 which was consolidated with the aforesaid civil case. This
petition which was signed by the parties on March 30, 1981, embodied a
compromise agreement allocating to the spouses their respective shares in the
conjugal partnership assets and dismissing with prejudice the said Civil Case No.

35566, CA-G.R. No. 11123-SP of the Court of Appeals and G.R. No. 56121 of this
Court. The said petition and the compromise agreement therein were approved by
the trial court in its order of June 9, 1981. 4
Thereafter, several orders were issued by the lower court pertaining to the
interpretation and implementation of the compromise agreement, as follows:
1. Order, dated November 20, 1981, ordering Benigno, inter alia, to pay Rose Marie
the cash dividends on the shares declared on April 25, 1981 amounting to
P37,126.30; that declared on July 25, 1981 amounting to P40,196.12; that declared
on July 1, 1981, given on September 25, 1981 amounting to P2,191.62; and the
payment of P360,095.12 to Rose Marie which is the balance of P2 million paid on
April 4, 1981; 5
2. Order, dated June 2, 1982, ordering Benigno to pay Rose Marie interest at 18%
per annum on the amounts required to be paid in the order of November 20,1981, as
well as 5% non-payment penalty should the said order of November 20,1981 be
sustained on appeal; 6
3. Order, dated December 9, 1982, denying Benigno's motion to inhibit Judge
Rizalina Bonifacio Vera from hearing the case; 7
4. Order, dated March 1, 1983, ordering the annotation of a lien on certain
properties of Benigno as security for any and all amounts that he may finally be
ordered to pay to Rose Marie under the compromise agreement; 8 and
5. Order, dated March 14, 1983, ordering Benigno to pay Rose Marie the amount of
P4,623,929.24, with interest and penalties thereon
at the rates stipulated in the compromise agreement from date of at the rates
stipulated in the compromise agreement from date of demand by Rose Marie. 9
The compromise agreement which, as earlier stated, was incorporated in the
petition for dissolution of the conjugal partnership and was approved by the court
below, contains the following stipulaitons:
xxx xxx xxx
4. For the best interest of each of them, petitioners have agreed to dissolve their
conjugal partnership and to partition the assets thereof, under the following terms
and conditions this document, a pleading, being intended by them to embody and
evidence their agreement;
(a) Petitioners as the parties hereto agree upon the dissolution of their
conjugal partnership during the marriage and further agree to obtain judicial
approval of their said agreement as provided by Article 191 of the Civil Code.
(b) The following shall be adjudicated to petitioner Rose Marie Tuason-Toda:
(1) Forty Million Peson (P40,000,000.00) to be paid as follows:
(a) Petitioner Benigno Toda, Jr. shall assume the payment of the estate
taxes, interest and penalties thereon, pertaining to the estate of petitioner Rose
Marie Tuason Toda's late brother Manuel Tuason, Jr. in the sum of P15,749,135.32 as
of March 31, 1981 all interest and penalty charges after March 31, 1981 to be the
responsibility of petitioner Benigno Toda, Jr.
(b) P2,000,000.00 to be paid within 30 days after signing of this agreement.

112

(c) The balance shall be paid within six (6) months after date of signing of
this agreement. If not paid when due, the balance shall bear interest at 18% per
annum until paid and there shall be a 5% non-payment penalty. The proceeds from
any sale of or loss with respect to, Rubicon's shares in Philippine Air Lines, Inc.,
shares of Cibeles Insurance Corporation or Hermana Mayor shall be applied when
received against the aforesaid balance, except to the extent such proceeds are used
to satisfy any other obligation under this agreement.
(2) All shares of stock in San Nguel Corporation registered solely in the name of
petitioner Rose Marie Tuason Toda whether stock dividends or stocks acquired on
pre-emptive rights including those acquired in the names of both petitioners
Benigno Toda, Jr. and Rose Marie Tuason Toda (whetherjointly or alternately 'and/or'),
free from all liens and encumbrances.
(3) All shares of stock in San Miguel Corporation acquired whether as stock
dividends of or on pre-emptive zighta pertaining to the shares of stock in said
corporation of petitioner Rose Marie Tuason Toda's brother the late Manuel Tuason, Jr.
(of course, the original shares of the latter pertain to petitioner Rose Marie Tuason
Toda also), free from all liens and encumbrances except for the estate tax lien.
Petitioner Rose Marie Tuason Toda hereby grants petitioner Benigno Toda, Jr. an
irrevocable proxy, for three years through the 1983 stockholders' meeting whether
annual or special to elect directors for all shares of stock she owns directly or
indirectly including those from the late Manuel Tuason, Jr. in San Miguel Corporation.
(4) The Banaba Forbes Park conjugal dwelling and its contents free from all liens and
encumbrances except that petitioner Benigno Toda, Jr. shall remove therefrom his
personal effects including furniture and appliances in his study room and T.V. room
and, from the family rooin, all antiques, rugs, paintings of Old Fort Manila, books and
mementos. Petitioner Benigno Toda, Jr. commits that no servant now living in the
Tolentino street apartments shall be evicted.
(5) The San Francisco apartment at Apartment 905, No. 1750 Taylor Street, San
Francisco, California, U.SA., and its contents, free from all liens and encumbrances,
except that petitioner Benigno Toda, Jr. shall remove therefrom his personal effects.
(6) The artifacts already removed by petitioner Rose Marie Tuason Toda from the
Madrid Apartment at No. 4 San Pedro de Valdivia. She shall return to it its silver
ware, china ware, paintings and etchings. She may retain the three fans encased in
glass and may remove her clothes, perfumes and toiletries, the Sansa painting ofa
shell dedicated to her, the painting of the Madonna and tapestry hanging in her
bedroom, 5 Persian rugs, 1 writing desk and chair and the 2 lamps thereon and 1
lamp on the night table, and the statuette given her by Hagedorn.
(7) Jewelry.
(8) Motor vehicles registered in her name.
(9) Within forty-five (45) days from signing of this agreement, One Million Pesos
(Pl,000,000.00) as attorneys' fees petitioner Rose Marie Tuason Toda agreeing to
hold petitioner Benigno Toda, Jr. harmless from any claim fo attorneys' fees and

expenses that may be filed against the conjugal partnership or herself for services
rendered to her in the prosecution of her claims against said conjugal partnership or
against petitioner Benigno Toda, Jr. or to secure her paraphernal estate.
(10) Two shares with two lots in Valley Golf & Country Club.
(11) One share in Club Puerta de Hierro in Madrid, Spain if there is one registered in
petitioner Rose Marie Tuason Toda's name.
(12) Share in Montemar Beach Club in Bagac, Bataan petitioner Rose Marie
Tuason Toda agreeing to assume the balance of the acquisition cost thereof.
(c) All other properties of the conjugal partnership of whatever and
wherever located shall be adjudicated to petitioner Benigno Toda, Jr. even though
acquired in the name of petitioner Rose Marie Tuason Toda or both of them she
undertaking to execute the corresponding deeds of conveyances.
(d) Petitioner Benigno Toda, Jr. shall assume the payment of all conjugal
obligations, petitioner Rose Marie Tuason Toda representing and warranting that she
has no pending obligation or incurred no obligation chargeable to the conjugal
partnership except those listed in Annex 'A' hereof.
If the Rosaria Apartment is subject to a mortgage loan and such loan is a conjugal
debt, petitioner Benigno Toda, Jr. shall assume such loan and shall obtain the
discharge of the mortgage.
(e) After the signing of this document:
(1) Each of them shall own, dispose of, possess, administer and enjoy his or her
separate estate, present and future, without the consent of the other;
(2) All earnings from any profession business or industry shall likewise belong to
each of them respectively;
(3) All expenses and obligations incurred by each of them shall be their respective
and separate responsibilities.
(f) With the signing of this document, Civil Case No. 35566 of this same
Court, CA-G.R. No. 11123-SP and SC-G.R. No. L-56121 shall be deemed dismissed
with prejudice as between the parties hereto. 10
The parties then prayed that judgment be rendered:
(a) Approving the agreement for voluntary dissolution and partition of the conjugal
partnership;
(b) declaring the conjugal partnership of petitioners dissolved and adjudicating to
each of them his or her share in the properties and assets of said conjugal
partnership in accordance with the agreement embodied in paragraph 4 hereof; and
(c) enjoining the parties to comply with the terms and conditions of the aforesaid
agreement. 11
Ironically, the said agreement failed to fully subserve the intended amicable
settlement of all the disputes of the spouses. Instead, as lamented by the counsel of
one of them, the compromise agreement which was designed to terminate a
litigation spawned two new petitions, with each party initiating one against the
other. Thus, illustrative of the saying that a solution which creates another problem

113

is no solution, the contradictory interpretations placed by the parties on some

provisions of the agreement resulted in appeals to respondent court and, eventually,
the present recourse to us.
Benigno appealed from the aforestated orders of the trial court of November 20,
1981, June 2, 1982, December 9, 1982, March 1, 1983 and March 14, 1983
containing the directives hereinbefore respectively set out. The same were disposed
of by the Court of Appeals as explained at the start of this decision.
Rose Marie now submits that the Court of Appeals erred:
1. In holding that the compromise agreement of the parties herein became effective
only after its judicial approval on June 9, 1981 and not upon its execution on March
30,1981;
2. In setting aside the order of the lower court dated June 2, 1981 directing Benigno
to pay interest of eighteen percent and non-payment penalty of five percent; and
3. In setting aside the order of the lower court directing the annotation of Rose
Marie's lien on Benigno's property. 12
On the other hand, Benigno contends in his present petition before us that:
1. The Court of Appeals erred on a question of law when it affirmed the lower court's
award of P4,623,929.24 without trial and evidence-taking and overruled petitioner's
claim of violation of his due process right;
2. The Court of Appeals erred on a question of law and due process when it upheld
the lower court's denial of petitioner's motion for her inhibition/disqualification;
3. Since the document (the parties' compromise agreement) explicitly provided for
assumption of liability rather than agency to pay and since there was no evidencetaking, the Court of Appeals finding of an agency to pay is reviewable as a question
of law; and
4. The Court of Appeals on a question of law involving the parol evidence rule. 13
The award of cash dividends basically depends on the date of effectivity of the
compromise agreement as this will determine whether the same is conjugal property
or separate property of the spouses.
We are in agreement with the holding of the Court of Appeals that the compromise
agreement became effective only on June 9, 1981, the date when it was approved
by the trial court, and not on March 30,1981 when it was signed by the parties.
Under Article 190 of the Civil Code, 14 "(i)n the absence of an express declaration in
the marriage settlements, the separation of property between spouses during the
marriage shall not take place save in virtue of a judicial order." Hence, the
separation of property is not effected by the mere execution of the contract or
agreement of the parties, but by the decree of the court approving the same. It,
therefore, becomes effective on y upon judicial approval, without which it is void. 15
Furthermore, Article 192 of said Code explicitly provides that the conjugal
partnership is dissolved only upon the issuance of a decree of separation of property.
Consequently, the conjugal partnership of Benigno and Rose Marie should be
considered dissolved only on June 9, 1981 when the trial court approved their joint
petition for voluntary dissolution of their conjugal partnership. Conformably thereto,
the cash dividends declared on July 1, 1981 and July 25,1981 in the amount of
P2,191.62 and P40,196.12, respectively, should pertain to Rose Marie; and that
declared on April 2,5, 1981 in the amount of P37,126.30 ought to be paid to
Benigno, pursuant to Paragraph 4 (c) of the compromise agreement which awards to
Benigno the conjugal assets not otherwise specifically assigned to Rose Marie.

With respect to the amount of P360,095.12 which Benigrio deducted from the P2
million supposed to be paid to Rose Marie, it is not clear from the records where said
amount came from. The Court of Appeals, in holding that it is conjugal and therefore
belongs to Benigno, presumed it to be in the nature of cash dividends declared prior
to the approval of the compromise agreement by reason of the fact that the amount
was deducted by Benigno from the P2 million which he paid on April 14,1981. While
no sufficient proof was adduced to conclusively explain such deduction, there exists
the legal presumption that all property of the marriage belongs to the conjugal
partnership absent any proof that it is the exclusive property of either spouse. 16
Since Rose Marie failed to prove that the amount forms part of her paraphernal
property, it is presumed to be conjugal property. Consequently, Benigno is entitled to
the said amount of P360,095.12, hence he rightfully deducted the same from the
amount due to Rose Marie.
The issue regarding the annotation of the lien on Benigno's properties has been
mooted by our resolution dated Aprjl 3, 1989 wherein, at his instance, we ordered
the cancellation thereof upon his posting of the corresponding bond. In our
resolution of February 26, 1990, we noted Benigno's comphance, approved the bond
he filed, and ordered the cancellation of the hens annotated on the certificates of
title of the propertiesinvolved.
Likewise, the order denying the motion to inhibit Judge Rizalina Bonifacio Vera has
become academic considering that she no longer presides over the court where the
case was filed. Besides, as correctly explained by respondent court, the groundfor
inhibition raised by Benigno is not valid it being merely on the basis of the judge
having acquired knowledge of the facts surrounding the agreement of the parties,
hence she would be a material witness to the issue of the true agreement which is
contested by the parties. However, those facts came to the knowledge of the judge
in the course of her efforts to effect a compromise between parties and are also
known to the parties.This is not a ground for disqualification; on the contrary, said,
acts of the judge were in accord with the rule encouraging compromises in
litigations, especially between members of the same family.
Anent the tax savings of P4,623,982.24 obtained by Benigno, we hold that this forms
part of the P40 million allocated to Rose Marie under paragraph 4 (b) (1) of the
compromise agreement.We give credit to the ratiocination thereon of the trial court
as quoted with approval by respondent court:
The records show that petitioner Benigno Toda, Jr. paid only Pl,125,152.48 in estate
taxes, although the amount stated in the m Compromise Agreement was
P15,749,135.32. The balance of P4,623,929.24 is now being claimed by both parties
as aforestated. In the opinion of this court, the pertinent terms of the Agreement as
quoted, are clear and do not require any interpretation. In brief, under, the
Agreement, petitioner Rose Marie T. Toda is adjudicated the fixed sum of P40 million,
to be paid as follows: (a) Payment by petitioner Benigno Toda, Jr. of the estate taxes,
interests and penalties thereon, pertaining to the estate of the late Manuel Tuason,
Jr. in the amount of Pl5,749,135.32 as of March 31, 1982; (b) P2 million within 30
days after signing of the Agreement; (c) the balance within six months after date of
signing of the Agreement. This Court notes that the amount of taxes, interests and
penalties is fixed at P15,749,135.32 and this figure was provided by Benigno Toda, Jr.
There is no provision as contended by petitioner Benigno Toda, Jr. that the amount
was only an assumed liability and that he could attempt to reduce it by suit or
compromise. It is clear that if the amount of P4,623,929.24 is to be credited to

114

Benigno Toda, Jr. then the P40 million which petitioner Rose Marie T. Toda is to
receive would be short by that amount. This Court is also of the opinion that under
the Agreement, petitioner Benigno Toda, Jr. was constituted as agent to pay to the
government the liability of the estate of the late Manuel Tuason, Jr. in the fixed
amount of P15,749,135.32 and if he was able to secure a reduction thereof, then he
should deliver to his principal such reduction... 17
We do not believe that Benigno was denied due process when the trial court
resolved the motion of Rose Marie for the payment of P4,623,982.24 without the
benefit of a hearing. The records disclose that the hearing thereon was postponed
twice at the instance of Benigno, which prompted the court to thereafter consider
the motion submitted for resolution on the basis of the allegations therein and the
answer filed by counsel for both parties. Benigno cannot now be heard to claim that
he was deprived of his day in court. Furthermore, respondent court correctly held
that the issue involved was more of a question of interpretation of a contract rather
than a determination of facts. Benigno failed to make a plausible showing that the
supposed evidence he had intended to present, if any, would not be merely
collateral matters.
Considering that the amount of P4,623,982.24 actually forms an integral part of the
P40 million (minus the lawful and authorized deductions that may be made
therefrom) which Benigno categorically undertook to pay to Rose Marie, the same
must earn interest at the rate of 18% per annum and 5% non-payment penalty, the
same being included in and within the contemplation of Paragraph 4 (b) (1) (c) of the
compromise agreement. Said provision of the agrdement provides for the payment
of the interest and penalty upon non-payment of the balance of the P40 million after
the specific authorized deductions therefrom. Since the amount of P4,623,982.24
was not to be lawfully deducted by Benigno, as hereinbefore explained, it
constitutes part of the contemplated contingent balance which might tum out to be
due to Rose Marie and, therefore, subject to the imposition of said increments on
Benigno's liability.
WHEREFORE, the judgment appealed from is hereby AFFIRMED, with the
modification that Benigno Toda, Jr. is hereby ordered to pay Rose Marie Tuason Toda
interest at the rate of a 18% per annum and 5% non-payment penalty on the tax
savings of P4,623,982.24 from date of formal demand until the same is fully paid.
SO ORDERED.

115

SECOND DIVISION
G.R. No. 122134

The donees took their marriage vows on June 4, 1944 and the fact of their marriage
was inscribed at the back of O.C.T. No. 18383. 10

October 3, 2003

ROMANA LOCQUIAO VALENCIA and CONSTANCIA L. VALENCIA, petitioners,

vs.
BENITO A. LOCQUIAO, now deceased and substituted by JIMMY LOCQUIAO,
TOMASA MARA and the REGISTRAR OF DEEDS OF PANGASINAN, respondents.
x----------------------------x
CONSTANCIA L. VALENCIA, petitioner,
vs.
BENITO A. LOCQUIAO, now deceased and substituted by JIMMY LOCQUIAO,
respondent.
DECISION
TINGA, J.:
The Old Civil Code1 and the Old Code of Civil Procedure,2 repealed laws that they
both are notwithstanding, have not abruptly become mere quiescent items of legal
history since their relevance do not wear off for a long time. Verily, the old statutes
proved to be decisive in the adjudication of the case at bar.
Before us is a petition for review seeking to annul and set aside the joint Decision3
dated November 24, 1994, as well as the Resolution4 dated September 8, 1995, of
the former Tenth Division5 of the Court of Appeals in two consolidated cases
involving an action for annulment of title6 and an action for ejectment.7
Both cases involve a parcel of land consisting of 4,876 square meters situated in
Urdaneta, Pangasinan. This land was originally owned by the spouses Herminigildo
and Raymunda Locquiao, as evidenced by Original Certificate of Title No. 183838
issued on October 3, 1917 by the Register of Deeds of Pangasinan.
On May 22, 1944, Herminigildo and Raymunda Locquiao executed a deed of
donation propter nuptias which was written in the Ilocano dialect, denominated as
Inventario Ti Sagut9 in favor of their son, respondent Benito Locquiao (hereafter,
respondent Benito) and his prospective bride, respondent Tomasa Mara (hereafter,
respondent Tomasa). By the terms of the deed, the donees were gifted with four (4)
parcels of land, including the land in question, as well as a male cow and one-third
(1/3) portion of the conjugal house of the donor parents, in consideration of the
impending marriage of the donees.

Herminigildo and Raymunda died on December 15, 1962 and January 9, 1968,
respectively, leaving as heirs their six (6) children, namely: respondent Benito,
Marciano, Lucio, Emeteria, Anastacia, and petitioner Romana, all surnamed
Locquiao11. With the permission of respondents Benito and Tomasa, petitioner
Romana Valencia (hereinafter, Romana) took possession and cultivated the subject
land.12 When respondent Romanas husband got sick sometime in 1977, her
daughter petitioner Constancia Valencia (hereafter, petitioner Constancia) took over,
and since then, has been in possession of the land. 13
Meanwhile, respondents Benito and Tomasa registered the Inventario Ti Sagut with
the Office of the Register of Deeds of Pangasinan on May 15, 1970.14 In due course,
the original title was cancelled and in lieu thereof Transfer Certificate of Title No.
8489715 was issued in the name of the respondents Benito and Tomasa.
On March 18, 1973, the heirs of the Locquiao spouses, including respondent Benito
and petitioner Romana, executed a Deed of Partition with Recognition of Rights,16
wherein they distributed among only three (3) of them, the twelve (12) parcels of
land left by their common progenitors, excluding the land in question and other lots
disposed of by the Locquiao spouses earlier. Contained in the deed is a statement
that respondent Benito and Marciano Locquiao, along with the heirs of Lucio
Locquiao, "have already received our shares in the estates of our parents, by virtue
of previous donations and conveyances," and that for that reason the heirs of Lucio
Locquaio were not made parties to the deed. All the living children of the Locquaio
spouses at the time, including petitioner Romana, confirmed the previous
dispositions and waived their rights to whomsoever the properties covered by the
deed of partition were adjudicated.17
Later on, disagreements among five (5) heirs or groups of heirs, including petitioner
Romana, concerning the distribution of two (2) of the lots covered by the deed of
partition which are Lots No. 2467 and 5567 of the Urdaneta Cadastral Survey
surfaced. As their differences were settled, the heirs concerned executed a Deed of
Compromise Agreement18 on June 12, 1976, which provided for the re-distribution of
the two (2) lots. Although not directly involved in the discord, Benito signed the
compromise agreement together with his feuding siblings, nephews and nieces.
Significantly, all the signatories to the compromise agreement, including petitioner
Romana, confirmed all the other stipulations and provisions of the deed of
partition.19
Sometime in 1983, the apparent calm pervading among the heirs was disturbed
when petitioner Constancia filed an action for annulment of title against the
respondents before the Regional Trial Court of Pangasinan. 20 The record shows that
the case was dismissed by the trial court but it does not indicate the reason for the
dismissal.21

116

On December 13, 1983, respondent Benito filed with the Municipal Trial Court of
Urdaneta, Pangasinan a Complaint22 seeking the ejectment of petitioner Constancia
from the subject property.
On November 25, 1985, the Municipal Trial Court rendered a Decision,23 ordering the
defendant in the case, petitioner Constancia, to vacate the land in question.
Petitioners Romana and Constancia countered with a Complaint24 for the annulment
of Transfer Certificate of Title No. 84897 against respondents Benito and Tomasa 25
which they filed with the Regional Trial Court of Pangasinan on December 23, 1985.
Petitioners alleged that the issuance of the transfer certificate of title was
fraudulent; that the Inventario Ti Sagut is spurious; that the notary public who
notarized the document had no authority to do so, and; that the donation did not
observe the form required by law as there was no written acceptance on the
document itself or in a separate public instrument.1a\^/phi1.net
Meanwhile, the decision in the ejectment case was appealed to the same RTC where
the case for annulment of title was also pending. Finding that the question of
ownership was the central issue in both cases, the court issued an Order26
suspending the proceedings in the ejectment case until it shall have decided the
ownership issue in the title annulment case.
After trial, the RTC rendered a Decision27 dated January 30, 1989 dismissing the
complaint for annulment of title on the grounds of prescription and laches. It likewise
ruled that the Inventario Ti Sagut is a valid public document which transmitted
ownership over the subject land to the respondents. With the dismissal of the
complaint and the confirmation of the respondents title over the subject property,
the RTC affirmed in toto the decision of the MTC in the ejectment case 28.
Dissatisfied, petitioners elevated the two (2) decisions to the respondent Court of
Appeals. Since they involve the same parties and the same property, the appealed
cases were consolidated by the appellate court.
On November 24, 1994, the Court of Appeals rendered the assailed Decision
affirming the appealed RTC decisions. The appellate court upheld the RTCs
conclusion that the petitioners cause of action had already prescribed, considering
that the complaint for annulment of title was filed more than fifteen (15) years after
the issuance of the title, or beyond the ten (10) - year prescriptive period for actions
for reconveyance. It likewise rejected the petitioners assertion that the donation
propter nuptias is null and void for want of acceptance by the donee, positing that
the implied acceptance flowing from the very fact of marriage between the
respondents, coupled with the registration of the fact of marriage at the back of OCT
No. 18383, constitutes substantial compliance with the requirements of the law.
The petitioners filed a Motion for Reconsideration29 but it was denied by the
appellate court in its Resolution30 dated September 8, 1995. Hence, this petition.

We find the petition entirely devoid of merit.

Concerning the annulment case, the issues to be threshed out are: (1) whether the
donation propter nuptias is authentic; (2) whether acceptance of the donation by the
donees is required; (3) if so, in what form should the acceptance appear, and; (4)
whether the action is barred by prescription and laches.
The Inventario Ti Sagut which contains the donation propter nuptias was executed
and notarized on May 22, 1944. It was presented to the Register of Deeds of
Pangasinan for registration on May 15, 1970. The photocopy of the document
presented in evidence as Exhibit "8" was reproduced from the original kept in the
Registry of Deeds of Pangasinan.31
The petitioners have launched a two-pronged attack against the validity of the
donation propter nuptias, to wit: first, the Inventario Ti Sagut is not authentic; and
second, even assuming that it is authentic, it is void for the donees failure to accept
the donation in a public instrument.
To buttress their claim that the document was falsified, the petitioners rely mainly on
the Certification32 dated July 9, 1984 of the Records Management and Archives Office
that there was no notarial record for the year 1944 of Cipriano V. Abenojar who
notarized the document on May 22, 1944 and that therefore a copy of the document
was not available.
The certification is not sufficient to prove the alleged inexistence or spuriousness of
the challenged document. The appellate court is correct in pointing out that the
mere absence of the notarial record does not prove that the notary public does not
have a valid notarial commission and neither does the absence of a file copy of the
document with the archives effect evidence of the falsification of the document. 33
This Court ruled that the failure of the notary public to furnish a copy of
the deed to the appropriate office is a ground for disciplining him, but
certainly not for invalidating the document or for setting aside the
transaction therein involved.34
Moreover, the heirs of the Locquaio spouses, including petitioner Romana, made
reference in the deed of partition and the compromise agreement to the previous
donations made by the spouses in favor of some of the heirs. As pointed out by the
RTC,35 respondent Benito was not allotted any share in the deed of partition precisely
because he received his share by virtue of previous donations. His name was
mentioned in the deed of partition only with respect to the middle portion of Lot No.
2638 which is the eleventh (11th) parcel in the deed but that is the same one-third
(1/3) portion of Lot No. 2638 covered by O.C.T. No. 18259 included in the donation
propter nuptias.1awphi1.nt Similarly, Marciano Locquiao and the heirs of Lucio
Locquiao were not allocated any more share in the deed of partition since they
received theirs by virtue of prior donations or conveyances.
The pertinent provisions of the deed of partition read:

117


That the heirs of Lucio Locquiao are not included in this Partition by reason of the
fact that in the same manner as we, BENITO and MARCIANO LOCQUIAO are
concerned, we have already received our shares in the estate of our parents
by virtue of previous donations and conveyances, and that we hereby
confirm said dispositions, waiving our rights to whomsoever will these
properties will now be adjudicated;

That we, the Parties herein, do hereby waive and renounce as against each other
any claim or claims that we may have against one or some of us, and that we
recognize the rights of ownership of our co-heirs with respect to those
parcels already distributed and adjudicated and that in the event that one of
us is cultivating or in possession of any one of the parcels of land already
adjudicated in favor of another heir or has been conveyed, donated or disposed
of previously, in favor of another heir, we do hereby renounce and waive our
right of possession in favor of the heir in whose favor the donation or conveyance
was made previously.36 (Emphasis supplied)
The exclusion of the subject property in the deed of partition dispels any doubt as to
the authenticity of the earlier Inventario Ti Sagut.
This brings us to the admissibility of the Deed of Partition with Recognition of Rights,
marked as Exhibit "2", and the Deed of Compromise Agreement, marked as Exhibit
"3".
The petitioners fault the RTC for admitting in evidence the deed of partition and the
compromise agreement on the pretext that the documents "were not properly
submitted in evidence", pointing out that "when presented to respondent Tomasa
Mara for identification, she simply stated that she knew about the documents but
she did not actually identify them."37
The argument is not tenable. Firstly, objection to the documentary evidence must be
made at the time it is formally offered.38 Since the petitioners did not even bother to
object to the documents at the time they were offered in evidence, 39 it is now too
late in the day for them to question their admissibility. Secondly, the documents
were identified during the Pre-Trial, marked as Exhibits "2" and "3" and testified on
by respondent Tomasa.40 Thirdly, the questioned deeds, being public documents as
they were duly notarized, are admissible in evidence without further proof of their
due execution and are conclusive as to the truthfulness of their contents, in the
absence of clear and convincing evidence to the contrary. 41 A public document
executed and attested through the intervention of the notary public is evidence of
the facts therein expressed in clear, unequivocal manner. 42

Concerning the issue of form, petitioners insist that based on a provision 43 of the
Civil Code of Spain (Old Civil Code), the acceptance by the donees should be made
in a public instrument. This argument was rejected by the RTC and the appellate
court on the theory that the implied acceptance of the donation had flowed from the
celebration of the marriage between the respondents, followed by the registration of
the fact of marriage at the back of OCT No. 18383.
The petitioners, the appellate court and the trial court all erred in applying the
requirements on ordinary donations to the present case instead of the rules on
donation propter nuptias. Underlying the blunder is their failure to take into account
the fundamental dichotomy between the two kinds of donations.
Unlike ordinary donations, donations propter nuptias or donations by reason of
marriage are those "made before its celebration, in consideration of the same and in
favor of one or both of the future spouses." 44 The distinction is crucial because the
two classes of donations are not governed by exactly the same rules, especially as
regards the formal essential requisites.
Under the Old Civil Code, donations propter nuptias must be made in a public
instrument in which the property donated must be specifically described. 45 However,
Article 1330 of the same Code provides that "acceptance is not necessary to the
validity of such gifts". In other words, the celebration of the marriage between
the beneficiary couple, in tandem with compliance with the prescribed form, was
enough to effectuate the donation propter nuptias under the Old Civil Code.
Under the New Civil Code, the rules are different. Article 127 thereof provides that
the form of donations propter nuptias are regulated by the Statute of Frauds. Article
1403, paragraph 2, which contains the Statute of Frauds requires that the contracts
mentioned thereunder need be in writing only to be enforceable. However, as
provided in Article 129, express acceptance "is not necessary for the validity
of these donations." Thus, implied acceptance is sufficient.
The pivotal question, therefore, is which formal requirements should be applied with
respect to the donation propter nuptias at hand. Those under the Old Civil Code or
the New Civil Code?
It is settled that only laws existing at the time of the execution of a contract are
applicable thereto and not later statutes, unless the latter are specifically intended
to have retroactive effect.46 Consequently, it is the Old Civil Code which applies in
this case since the donation propter nuptias was executed in 1944 and the New Civil
Code took effect only on August 30, 1950.47 The fact that in 1944 the Philippines was
still under Japanese occupation is of no consequence. It is a well-known rule of the
Law of Nations that municipal laws, as contra-distinguished from laws of political
nature, are not abrogated by a change of sovereignty.48 This Court specifically held
that during the Japanese occupation period, the Old Civil Code was in force. 49 As a
consequence, applying Article 1330 of the Old Civil Code in the determination of the

118

validity of the questioned donation, it does not matter whether or not the donees
had accepted the donation. The validity of the donation is unaffected in either case.
Even the petitioners agree that the Old Civil Code should be applied. However, they
invoked the wrong provisions50 thereof.
Even if the provisions of the New Civil Code were to be applied, the case of the
petitioners would collapse just the same. As earlier shown, even implied acceptance
of a donation propter nuptias suffices under the New Civil Code.51
With the genuineness of the donation propter nuptias and compliance with the
applicable mandatory form requirements fully established, petitioners hypothesis
that their action is imprescriptible cannot take off.
Viewing petitioners action for reconveyance from whatever feasible legal angle, it is
definitely barred by prescription. Petitioners right to file an action for the
reconveyance of the land accrued in 1944, when the Inventario Ti Sagut was
executed. It must be remembered that before the effectivity of the New Civil Code in
1950, the Old Code of Civil Procedure (Act No. 190) governed prescription. 52 Under
the Old Code of Civil Procedure, an action for recovery of the title to, or possession
of, real property, or an interest therein, can only be brought within ten years after
the cause of such action accrues.53 Thus, petitioners action, which was filed on
December 23, 1985, or more than forty (40) years from the execution of the deed of
donation on May 22, 1944, was clearly time-barred.
Even following petitioners theory that the prescriptive period should commence
from the time of discovery of the alleged fraud, the conclusion would still be the
same. As early as May 15, 1970, when the deed of donation was registered and the
transfer certificate of title was issued, petitioners were considered to have
constructive knowledge of the alleged fraud, following the jurisprudential rule that
registration of a deed in the public real estate registry is constructive notice to the
whole world of its contents, as well as all interests, legal and equitable, included
therein.54 As it is now settled that the prescriptive period for the reconveyance of
property allegedly registered through fraud is ten (10) years, reckoned from the date
of the issuance of the certificate of title, 55 the action filed on December 23, 1985 has
clearly prescribed.
In any event, independent of prescription, petitioners action is dismissible on the
ground of laches. The elements of laches are present in this case, viz:
(1) conduct on the part of the defendant, or one under whom he claims,
giving rise to the situation that led to the complaint and for which the
complainant seeks a remedy;

(2) delay in asserting the complainants rights, having had knowledge or

notice of defendants conduct and having been afforded an opportunity to
institute a suit;
(3) lack of knowledge or notice on the part of the defendant that the
complainant would assert the right on which he bases his suit, and
(4) injury or prejudice to the defendant in the event relief is accorded to the
complainant, or the suit is not held barred. 56
Of the facts which support the finding of laches, stress should be made of the
following: (a) the petitioners Romana unquestionably gained actual knowledge of the
donation propter nuptias when the deed of partition was executed in 1973 and the
information must have surfaced again when the compromise agreement was forged
in 1976, and; (b) as petitioner Romana was a party-signatory to the two documents,
she definitely had the opportunity to question the donation propter nuptias on both
occasions, and she should have done so if she were of the mindset, given the fact
that she was still in possession of the land in dispute at the time. But she did not
make any move. She tarried for eleven (11) more years from the execution of the
deed of partition until she, together with petitioner Constancia, filed the annulment
case in 1985.
Anent the ejectment case, we find the issues raised by the petitioners to be factual
and, therefore, beyond this Courts power of review. Not being a trier of facts, the
Court is not tasked to go over the proofs presented by the parties and analyze,
assess, and weigh them to ascertain if the trial court and the appellate court were
correct in according them superior credit in this or that piece of evidence of one
party or the other.57 In any event, implicit in the affirmance of the Court of Appeals is
the existence of substantial evidence supporting the decisions of the courts below.
WHEREFORE, finding no reversible error in the assailed decision, the same is
hereby AFFIRMED.
Costs against petitioners. SO ORDERED.
G.R. No. 122749 July 31, 1996
ANTONIO A. S. VALDEZ, petitioner,
vs.
REGIONAL TRIAL COURT, BRANCH 102, QUEZON CITY, and CONSUELO M.
GOMEZ-VALDEZ, respondents.
VITUG, J.:p
The petition for new bewails, purely on the question of law, an alleged error
committed by the Regional Trial Court in Civil Case No. Q-92-12539. Petitioner avers
that the court a quo has failed to apply the correct law that should govern the
disposition of a family dwelling in a situation where a marriage is declared void ab

119

initio because of psychological incapacity on the part of either or both parties in the
contract.
The pertinent facts giving rise to this incident are, by large, not in dispute.
Antonio Valdez and Consuelo Gomez were married on 05 January 1971. Begotten
during the marriage were five children. In a petition, dated 22 June 1992, Valdez
sought the declaration of nullity of the marriage pursuant to Article 36 of the Family
code (docketed Civil Case No. Q-92-12539, Regional Trial Court of Quezon City,
Branch 102). After the hearing the parties following the joinder of issues, the trial
court, 1 in its decision of 29 July 1994, granted the petition, viz:
WHEREFORE, judgment is hereby rendered as follows:
(1) The marriage of petitioner Antonio Valdez and respondent Consuelo GomezValdez is hereby declared null and void under Article 36 of the Family Code on the
ground of their mutual psychological incapacity to comply with their essential
marital obligations;
(2) The three older children, Carlos Enrique III, Antonio Quintin and Angela Rosario
shall choose which parent they would want to stay with.
Stella Eloisa and Joaquin Pedro shall be placed in the custody of their mother, herein
respondent Consuelo Gomez-Valdes.
The petitioner and respondent shall have visitation rights over the children who are
in the custody of the other.
(3) The petitioner and the respondent are directed to start proceedings on the
liquidation of their common properties as defined by Article 147 of the Family Code,
and to comply with the provisions of Articles 50, 51, and 52 of the same code, within
thirty (30) days from notice of this decision.
Let a copy of this decision be furnished the Local Civil Registrar of
Mandaluyong, Metro Manila, for proper recording in the registry of
marriages. 2 (Emphasis ours.)
Consuelo Gomez sought a clarification of that portion of the decision directing
compliance with Articles 50, 51 and 52 of the Family Code. She asserted that the
Family Code contained no provisions on the procedure for the liquidation of common
property in "unions without marriage." Parenthetically, during the hearing of the
motion, the children filed a joint affidavit expressing their desire to remain with their
father, Antonio Valdez, herein petitioner.
In an order, dated 05 May 1995, the trial court made the following clarification:
Consequently, considering that Article 147 of the Family Code
explicitly provides that the property acquired by both parties
during their union, in the absence of proof to the contrary, are
presumed to have been obtained through the joint efforts of the
parties and will be owned by them in equal shares, plaintiff and
defendant will own their "family home" and all their properties for
that matter in equal shares.
In the liquidation and partition of properties owned in common by
the plaintiff and defendant, the provisions on ownership found in
the Civil Code shall apply. 3 (Emphasis supplied.)
In addressing specifically the issue regarding the disposition of the family dwelling,
the trial court said:

Considering that this Court has already declared the marriage

between petitioner and respondent as null and void ab initio,
pursuant to Art. 147, the property regime of petitioner and
respondent shall be governed by the rules on ownership.
The provisions of Articles 102 and 129 of the Family Code finds no
application since Article 102 refers to the procedure for the
liquidation of the conjugal partnership property and Article 129
refers to the procedure for the liquidation of the absolute
community of property. 4
Petitioner moved for a reconsideration of the order. The motion was denied on 30
October 1995.
In his recourse to this Court, petitioner submits that Articles 50, 51 and 52 of the
Family Code should be held controlling: he argues that:
I
Article 147 of the Family Code does not apply to cases where the parties are
psychologically incapacitated.
II
Articles 50, 51 and 52 in relation to Articles 102 and 129 of the Family Code govern
the disposition of the family dwelling in cases where a marriage is declared void ab
initio, including a marriage declared void by reason of the psychological incapacity
of the spouses.
III
Assuming arguendo that Article 147 applies to marriages declared void ab initio on
the ground of the psychological incapacity of a spouse, the same may be read
consistently with Article 129.
IV
It is necessary to determine the parent with whom majority of the children wish to
stay. 5
The trial court correctly applied the law. In a void marriage, regardless of the cause
thereof, the property relations of the parties during the period of cohabitation is
governed by the provisions of Article 147 or Article 148, such as the case may be, of
the Family Code. Article 147 is a remake of Article 144 of the Civil Code as
interpreted and so applied in previous cases; 6 it provides:
Art. 147. When a man and a woman who are capacitated to marry each other, live
exclusively with each other as husband and wife without the benefit of marriage or
under a void marriage, their wages and salaries shall be owned by them in equal
shares and the property acquired by both of them through their work or industry
shall be governed by the rules on co-ownership.
In the absence of proof to the contrary, properties acquired while they lived together
shall be presumed to have been obtained by their joint efforts, work or industry, and
shall be owned by them in equal shares. For purposes of this Article, a party who did
not participate in the acquisition by the other party of any property shall be deemed
to have contributed jointly in the acquisition thereof in the former's efforts consisted
in the care and maintenance of the family and of the household.

120

Neither party can encumber or dispose by acts inter vivos of his or her share in the
property acquired during cohabitation and owned in common, without the consent of
the other, until after the termination of their cohabitation.
When only one of the parties to a void marriage is in good faith, the share of the
party in bad faith in the ownership shall be forfeited in favor of their common
children. In case of default of or waiver by any or all of the common children or their
descendants, each vacant share shall belong to the innocent party. In all cases, the
forfeiture shall take place upon the termination of the cohabitation.
This particular kind of co-ownership applies when a man and a woman, suffering no
illegal impediment to marry each other, so exclusively live together as husband and
wife under a void marriage or without the benefit of marriage. The term
"capacitated" in the provision (in the first paragraph of the law) refers to the legal
capacity of a party to contract marriage, i.e., any "male or female of the age of
eighteen years or upwards not under any of the impediments mentioned in Articles
37 and 38" 7 of the Code.
Under this property regime, property acquired by both spouses through their work
and industry shall be governed by the rules on equal co-ownership. Any property
acquired during the union is prima facie presumed to have been obtained through
their joint efforts. A party who did not participate in the acquisition of the property
shall be considered as having contributed thereto jointly if said party's "efforts
consisted in the care and maintenance of the family household." 8 Unlike the
conjugal partnership of gains, the fruits of the couple's separate property are not
included in the co-ownership.
Article 147 of the Family Code, in the substance and to the above extent, has
clarified Article 144 of the Civil Code; in addition, the law now expressly provides
that
(a) Neither party can dispose or encumber by act intervivos his or her share in coownership property, without consent of the other, during the period of cohabitation;
and
(b) In the case of a void marriage, any party in bad faith shall forfeit his or her share
in the co-ownership in favor of their common children; in default thereof or waiver
by any or all of the common children, each vacant share shall belong to the
respective surviving descendants, or still in default thereof, to the innocent party.
The forfeiture shall take place upon the termination of the cohabitation 9 or
declaration of nullity of the marriage. 10
When the common-law spouses suffer from a legal impediment to marry or when
they do not live exclusively with each other (as husband and wife), only the property
acquired by both of them through their actual joint contribution of money, property
or industry shall be owned in common and in proportion to their respective
contributions. Such contributions and corresponding shares, however, are prima
facie presumed to be equal. The share of any party who is married to another shall
accrue to the absolute community or conjugal partnership, as the case may be, if so
existing under a valid marriage. If the party who has acted in bad faith is not validly
married to another, his or her share shall be forfeited in the manner already
heretofore expressed. 11
In deciding to take further cognizance of the issue on the settlement of the parties'
common property, the trial court acted neither imprudently nor precipitately; a court
which has jurisdiction to declare the marriage a nullity must be deemed likewise

clothed in authority to resolve incidental and consequential matters. Nor did it

commit a reversible error in ruling that petitioner and private respondent own the
"family home" and all their common property in equal shares, as well as in
concluding that, in the liquidation and partition of the property owned in common by
them, the provisions on co-ownership under the Civil Code, not Articles 50, 51 and
52, in relation to Articles 102 and 129, 12 of the Family Code, should aptly prevail.
The rules set up to govern the liquidation of either the absolute community or the
conjugal partnership of gains, the property regimes recognized for valid and
voidable marriages (in the latter case until the contract is annulled), are irrelevant to
the liquidation of the co-ownership that exists between common-law spouses. The
first paragraph of Articles 50 of the Family Code, applying paragraphs (2), (3), (4)
and 95) of Article 43, 13 relates only, by its explicit terms, to voidable marriages and,
exceptionally, to void marriages under Article 40 14 of the Code, i.e., the declaration
of nullity of a subsequent marriage contracted by a spouse of a prior void marriage
before the latter is judicially declared void. The latter is a special rule that somehow
recognizes the philosophy and an old doctrine that void marriages are inexistent
from the very beginning and no judicial decree is necessary to establish their nullity.
In now requiring for purposes of remarriage, the declaration of nullity by final
judgment of the previously contracted void marriage, the present law aims to do
away with any continuing uncertainty on the status of the second marriage. It is not
then illogical for the provisions of Article 43, in relation to Articles 41 15 and 42, 16 of
the Family Code, on the effects of the termination of a subsequent marriage
contracted during the subsistence of a previous marriage to be made applicable pro
hac vice. In all other cases, it is not to be assumed that the law has also meant to
have coincident property relations, on the one hand, between spouses in valid and
voidable marriages (before annulment) and, on the other, between common-law
spouses or spouses of void marriages, leaving to ordain, on the latter case, the
ordinary rules on co-ownership subject to the provisions of the Family Code on the
"family home," i.e., the provisions found in Title V, Chapter 2, of the Family Code,
remain in force and effect regardless of the property regime of the spouses.
WHEREFORE, the questioned orders, dated 05 May 1995 and 30 October 1995, of
the trial court are AFFIRMED. No costs.

121

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