Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

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:

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.

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 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 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.

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:

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 inFrancisco 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

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)

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 supportpendente 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.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 105308 September 25, 1998
HERBERT CANG, petitioner,
vs.
COURT OF APPEALS and Spouses RONALD V. CLAVANO and MARIA
CLARA CLAVANO, respondents.

ROMERO, J.:
Can minor children be legally adopted without the written consent of a
natural parent on the ground that the latter has abandoned them? The
answer to this interesting query, certainly not one of first impression,
would have to be reached, not solely on the basis of law and
jurisprudence, but also the hard reality presented by the facts of the case.

This is the question posed before this Court in this petition for review
on certiorari of the Decision 1 of the Court of Appeals affirming the decree
of adoption issued by the Regional Trial Court of Cebu City, Branch 14, 2 in
Special Proceedings No. 1744-CEB, "In the Matter of the Petition for
Adoption of the minors Keith, Charmaine and Joseph Anthony, all
surnamed Cang, Spouses Ronald V. Clavano and Maria Clara Diago
Clavano, petitioners."
Petitioner Herbert Cang and Anna Marie Clavano who were married on
January 27, 1973, begot three children, namely: Keith, born on July 3,
1973; Charmaine, born on January 23, 1977, and Joseph Anthony, born on
January 3, 1981.
During the early years of their marriage, the Cang couple's relationship
was undisturbed. Not long thereafter, however, Anna Marie learned of her
husband's alleged extramarital affair with Wilma Soco, a family friend of
the Clavanos.
Upon learning of her husband's alleged illicit liaison, Anna Marie filed a
petition for legal separation with alimonypendente lite 3 with the then
Juvenile and Domestic Relations Court of Cebu 4 which rendered a
decision 5 approving the joint manifestation of the Cang spouses providing
that they agreed to "live separately and apart or from bed and board."
They further agreed:
(c) That the children of the parties shall be
entitled to a monthly support of ONE
THOUSAND PESOS (P1,000.00) effective
from the date of the filing of the complaint.
This shall constitute a first lien on the net
proceeds of the house and lot jointly
owned by the parties situated at Cinco
Village, Mandaue City;
(d) That the plaintiff shall be entitled to
enter into any contract or agreement with
any person or persons, natural or juridical
without the written consent of the
husband; or any undertaking or acts that
ordinarily requires husband's consent as
the parties are by this agreement legally
separated; 6

Petitioner then left for the United States where he sought a divorce from
Anna Marie before the Second Judicial District Court of the State of
Nevada. Said court issued the divorce decree that also granted sole
custody of the three minor children to Anna Marie, reserving "rights of
visitation at all reasonable times and places" to petitioner. 7
Thereafter, petitioner took an American wife and thus became a
naturalized American citizen. In 1986, he divorced his American wife and
never remarried.
While in the United States, petitioner worked in Tablante Medical Clinic
earning P18,000.00 to P20,000.00 a month 8a portion of which was
remitted to the Philippines for his children's expenses and another,
deposited in the bank in the name of his children.
Meanwhile, on September 25, 1987, private respondents Ronald V.
Clavano and Maria Clara Diago Clavano, respectively the brother and
sister-in-law of Anna Marie, filed Special Proceedings No. 1744-CEB for the
adoption of the three minor Cang children before the Regional Trial Court
of Cebu. The petition bears the signature of then 14-year-old Keith
signifying consent to his adoption. Anna Marie likewise filed an affidavit of
consent alleging that her husband had "evaded his legal obligation to
support" his children; that her brothers and sisters including Ronald V.
Clavano, had been helping her in taking care of the children; that because
she would be going to the United States to attend to a family business,
"leaving the children would be a problem and would naturally hamper
(her) job-seeking venture abroad;" and that her husband had "long
forfeited his parental rights" over the children for the following reasons:

although private respondents Ronald and Maria Clara Clavano were

financially capable of supporting the children while his finances were "too
meager" compared to theirs, he could not "in conscience, allow anybody to
strip him of his parental authority over his beloved children."
Pending resolution of the petition for adoption, petitioner moved to
reacquire custody over his children alleging that Anna Marie had
transferred to the United States thereby leaving custody of their children
to private respondents. On January 11, 1988, the Regional Trial Court of
Cebu City, Branch 19, issued an order finding that Anna Marie had, in
effect, relinquished custody over the children and, therefore, such custody
should be transferred to the father. The court then directed the Clavanos
to deliver custody over the minors to petitioner.
On March 27, 1990, the Regional Trial Court of Cebu City, Branch 14,
issued a decree of adoption with a dispositive portion reading as follows:
WHEREFORE, premises considered, the petition for
adoption of the minors Keith, Charmaine and Joseph
Anthony all surnamed Cang, by the petitioner-spouses
Ronald V. Clavano and Maria Clara Diago Clavano is hereby
granted and approved. These children shall henceforth be
known and called as Keith D. Clavano, Charmaine D.
Clavano and Joseph Anthony D. Clavano respectively.
Moreover, this Decree of Adoption shall:
(1) Confer upon the adopted children the
same rights and duties as though they
were in fact the legitimate children of the
petitioners;

1. The decision in Civil Case No. JD-707 allowed her to

enter into any contract without the written consent of her
husband;

(2) Dissolve the authority vested in the

parents by nature, of the children; and,

2. Her husband had left the Philippines to be an illegal

alien in the United States and had been transferring from
one place to another to avoid detection by Immigration
authorities, and
3. Her husband had divorced her.
Upon learning of the petitioner for adoption, petitioner immediately
returned to the Philippines and filed an opposition thereto, alleging that,

(3) Vest the

petitioners.

same

authority

in

the

Furnish the Local Civil Registrar of Cebu City, Philippines

with a copy of this Decree of Adoption for registration
purposes.
SO ORDERED.

In so ruling, the lower court was "impelled" by these reasons:

(1) The Cang children had, since birth,
developed "close filial ties with the Clavano
family, especially their maternal uncle,"
petitioner Ronald Clavano.
(2) Ronald and Maria Clara Clavano were
childless and, with their printing press, real
estate business, export business and
gasoline
station
and
mini-mart
in
Rosemead,
California,
U.S.A.,
had
substantial assets and income.
(3) The natural mother of the children,
Anna
Marie,
nicknamed
"Menchu,"
approved of the adoption because of her
heart ailment, near-fatal accident in 1981,
and the fact that she could not provide
them a secure and happy future as she
"travels a lot."
(4) The Clavanos could provide the children
moral and spiritual direction as they would
go to church together and had sent the
children to Catholic schools.
(5) The children themselves manifested
their desire to be adopted by the Clavanos
Keith had testified and expressed the
wish to be adopted by the Clavanos while
the two younger ones were observed by
the court to have "snuggled" close to
Ronald even though their natural mother
was around.
On the other hand, the lower court considered the opposition of petitioner
to rest on "a very shaky foundation" because of its findings that:
(1) Petitioner was "morally unfit to be the
father of his children" on account of his
being "an improvident father of his family"

and an "undisguised Lothario." This

conclusion is based on the testimony of his
alleged paramour, mother of his two sons
and close friend of Anna Marie, Wilma
Soco, who said that she and petitioner
lived as husband and wife in the very
house of the Cangs in Opao, Mandaue City.
(2) The alleged deposits of around $10,000
that were of "comparatively recent dates"
were "attempts at verisimilitude" as these
were joint deposits the authenticity of
which could not be verified.
(3) Contrary to petitioner's claim, the
possibility of his reconciliation with Anna
Marie was "dim if not nil" because it was
petitioner who "devised, engineered and
executed the divorce proceedings at the
Nevada Washoe County court."
(4) By his naturalization as a U.S. citizen,
petitioner "is now an alien from the
standpoint
of
Philippine
laws"
and
therefore, how his "new attachments and
loyalties would sit with his (Filipino)
children is an open question."
Quoting with approval the evaluation and recommendation of the RTC
Social Worker in her Child Study Report, the lower court concluded as
follows:
Simply put, the oppositor Herbert Cang has abandoned his
children. And abandonment of a child by its (sic) parent is
commonly specified by statute as a ground for dispensing
with his consent to its (sic) adoption (Re Cozza, 163 Cal.
514 P. 161, Ann. [As. 1914A, 214]). Indeed, in such case,
adoption will be allowed not only without the consent of
the parent, but even against his opposition (Re McKeag,
141 Cal. 403, 74 P. 1039, 99 Am. St. Rep. 80; Re Camp.
131 Gal. 469,63 P. 736, 82 Am. St. Rep. 371; Graham v.
Francis, 83 Colo. 346, 265 P. 690, citing R.C.L.; Seibert,

170 Iowa, 561, 153 N.W. 160, citing R.C.L.; Steams v.

Allen, 183 Mass. 404, 67 N.E. 349; 97 Am. St. Rep. 441;
Wilson v. Otis, 71 N.H. 483, 53 A. 439, 93 Am. St. Rep.
564; Nugent v. Powell, 4 Wyo, 173, 33 P. 23, 20 L.R.A.
199, 62 Am. St. Rep. 17.) 9
Before the Court of Appeals, petitioner contended that the lower court
erred in holding that it would be in the best interest of the three children if
they were adopted by private respondents Ronald and Maria Clara
Clavano. He asserted that the petition for adoption was fatally defective
and tailored to divest him of parental authority because: (a) he did not
have a written consent to the adoption; (b) he never abandoned his
children; (c) Keith and Charmaine did not properly give their written
consent; and (d) the petitioners for adoption did not present as witness
the representative of the Department of Social Welfare and Development
who made the case study report required by law.

Federal Court which orders him to pay monthly support of

US$50.00 for each child. Oppositor has not submitted any
evidence to show compliance with the decision in JD-101
CEB, but he has submitted 22 cancelled dollar checks
(Exhs. 24 to 45) drawn in the children's names totalling
$2,126.98. The last remittance was on October 6, 1987
(Exh. 45). His obligation to provide support commenced
under the divorce decree on May 5, 1982 so that as of
October 6, 1987, oppositor should have made 53
remittances of $150.00, or a total of $7,950.00. No other
remittances were shown to have been made after October
6, 1987, so that as of this date, oppositor was woefully in
arrears under the terms of the divorce decree. And since
he was totally in default of the judgment in JD-707 CEB,
the inevitable conclusion is oppositor had not really been
performing his duties as a father, contrary to his
protestations.

The Court of Appeals affirmed the decree of adoption stating:

Art. 188 of the Family Code requires the written consent of
the natural parents of the child to be adopted. It has been
held however that the consent of the parent who has
abandoned the child is not necessary (Dayrit vs. Piccio, 92
Phil. 729; Santos vs. Ananzanso, 16 SCRA 344). The
question therefore is whether or not oppositor may be
considered as having abandoned the children. In adoption
cases, abandonment connotes any conduct on the part of
the parent to forego parental duties and relinquish parental
claims to the child, or the neglect or refusal to perform the
natural and legal obligations which parents owe their
children (Santos vs. Ananzanso, supra), or the withholding
of the parent's presence, his care and the opportunity to
display voluntary affection. The issue of abandonment is
amply covered by the discussion of the first error.
Oppositor argues that he has been sending dollar
remittances to the children and has in fact even
maintained bank accounts in their names. His duty to
provide support comes from two judicial pronouncements.
The first, the decision in JD-707 CEB, supra, obliges him to
pay the children P1,000.00 a month. The second is
mandated by the divorce decree of the Nevada, U.S.A.

True, it has been shown that oppositor had opened three

accounts in different banks, as follows
Acct. No. Date Opened Balance Name of
Bank

1) 118-606437-4 July 23, 1985 $5,018.50 Great Western
Savings,
Oct. 29, 1987 Daly City, Cal., U.S.A.
2) 73-166-8 March 5, 1986 3,129.00 Matewan National
Bank
Oct. 26, 1987 of Williamson, West
Virginia, U.S.A.
3) 564-146883 December 31, 1986 2,622.19 Security
Pacific National
Oct. 29, 1987 Bank, Daly City, Cal.,

U.S.A.
The first and third accounts were opened however in
oppositor's name as trustee for Charmaine Cang and
Joseph Anthony Cang, respectively. In other words, the
accounts are operated and the amounts withdrawable by
oppositor himself and it cannot be said that they belong to
the minors. The second is an "or" account, in the names of
Herbert Cang or Keith Cang. Since Keith is a minor and in
the Philippines, said account is operable only by oppositor
and the funds withdrawable by him alone.
The bank accounts do not really serve what oppositor
claimed in his offer of evidence "the aim and purpose of
providing for a better future and security of his family." 10
Petitioner moved to reconsider the decision of the Court of Appeals. He
emphasized that the decree of legal separation was not based on the
merits of the case as it was based on a manifestation amounting to a
compromise agreement between him and Anna Marie. That he and his wife
agreed upon the plan for him to leave for the United States was borne out
by the fact that prior to his departure to the United States, the family lived
with petitioner's parents. Moreover, he alone did not instigate the divorce
proceedings as he and his wife initiated the "joint complaint" for divorce.
Petitioner argued that the finding that he was not fit to rear and care for
his children was belied by the award to him of custody over the children in
Civil Case No. JD-707. He took exception to the appellate court's findings
that as an American citizen he could no longer lay claim to custody over
his children because his citizenship would not take away the fact that he
"is still a father to his children." As regards his alleged illicit relationship
with another woman, he had always denied the same both in Civil Case
No. JD-707 and the instant adoption case. Neither was it true that Wilma
Soco was a neighbor and family friend of the Clavanos as she was residing
in Mandaue City seven (7) kilometers away from the Clavanos who were
residents of Cebu City. Petitioner insisted that the testimony of Wilma Soco
should not have been given weight for it was only during the hearing of
the petition for adoption that Jose Clavano, a brother of Ronald, came to
know her and went to her residence in Iligan City to convince her to be a
witness for monetary considerations. Lastly, petitioner averred that it
would be hypocritical of the Clavanos to claim that they could love the
children much more than he could. 11

His motion for reconsideration having been denied, petitioner is now

before this Court, alleging that the petition for adoption was fatally
defective as it did not have his written consent as a natural father as
required by Article 31 (2) of Presidential Decree No. 603, the Child and
Youth Welfare Code, and Article 188 (2) of the Family Code.
Art. 31 of P.D. No. 603 provides
Art. 31. Whose Consent is Necessary. The written
consent of the following to the adoption shall be
necessary:
(1) The person to be adopted, if fourteen
years of age or, over;
(2) The natural parents of the child or his
legal guardian of the Department of Social
Welfare or any duly licensed child
placement agency under whose care the
child may be;
(3) The natural children, fourteen years
and above, of the adopting parents.
(Emphasis supplied)
On December 17, 1986, then President Corazon C. Aquino issued
Executive Order No. 91 amending Articles 27, 28, 29, 31, 33 and 35 of the
Child and Youth Welfare Code. As thus amended, Article 31 read:
Art. 31. Whose Consent is Necessary. The written
consent of the following to the adoption shall be
necessary:
(1) The person to be adopted, if fourteen
years of age or over;
(2) The natural parents of the child or his
legal guardian after receiving counselling
and appropriate social services from the
Ministry
of
Social
Services
and
Development or from a duly licensed childplacement agency;

(3) The Ministry of Social Services and

Development or any duly licensed childplacement agency under whose care and
legal custody the child may be;
(4) The natural children, fourteen years
and above, of the adopting parents.
(Emphasis supplied)
Jurisdiction being a matter of substantive law, the established rule is that
the statute in force at the time of the commencement of the action
determines the jurisdiction of the court. 12 As such, when private
respondents filed the petition for adoption on September 25, 1987, the
applicable law was the Child and Youth Welfare Code, as amended by
Executive Order No. 91.
During the pendency of the petition for adoption or on August 3, 1988, the
Family Code which amended the Child and Youth Welfare Code took effect.
Article 256 of the Family Code provides for its retroactivity "insofar as it
does not prejudice or impair vested or acquired rights in accordance with
the Civil Code or other laws." As amended by the Family Code, the
statutory provision on consent for adoption now reads:
Art. 188. The written consent of the following to the
adoption shall be necessary:
(1) The person to be adopted, if ten years
of age or over;
(2) The parents by nature of the child, the
legal guardian, or the proper government
instrumentality;
(3) The legitimate and adopted children,
ten years of age or over, of the adopting
parent or parents;
(4) The illegitimate children, ten years of
age or over, of the adopting parents, if
living with said parent and the latter's
spouse, if any; and

(5) The spouse, if any, of the person

adopting or to be adopted. (Emphasis
supplied)
Based on the foregoing, it is thus evident that notwithstanding the
amendments to the law, the written consent of the natural parent to the
adoption has remained a requisite for its validity. Notably, such
requirement is also embodied in Rule 99 of the Rules of Court as follows:
Sec. 3. Consent to adoption. There shall be filed with
the petition a written consent to the adoption signed by
the child, if fourteen years of age or over and not
incompetent, and by the child's spouse, if any, and by
each of its known living parents who is not insane or
hopelessly intemperate or has not abandoned the child, or
if the child is in the custody of an orphan asylum,
children's home, or benevolent society or person, by the
proper officer or officers of such asylum, home, or society,
or by such persons; but if the child is illegitimate and has
not been recognized, the consent of its father to the
adoption shall not be required. (Emphasis supplied)
As clearly inferred from the foregoing provisions of law, the written
consent of the natural parent is indispensable for the validity of the decree
of adoption. Nevertheless, the requirement of written consent can be
dispensed with if the parent has abandoned the child 13 or that such parent
is "insane or hopelessly intemperate." The court may acquire jurisdiction
over the case even, without the written consent of the parents or one of
the parents provided that the petition for adoption alleges facts sufficient
to warrant exemption from compliance therewith. This is in consonance
with the liberality with which this Court treats the procedural aspect of
adoption. Thus, the Court declared:
. . . . The technical rules of pleading should not be
stringently applied to adoption proceedings, and it is
deemed more important that the petition should contain
facts relating to the child and its parents, which may give
information to those interested, than that it should be
formally correct as a pleading. Accordingly, it is generally
held that a petition will confer jurisdiction if it substantially
complies with the adoption statute, alleging all facts
necessary to give the court jurisdiction. 14

In the instant case, only the affidavit of consent of the natural mother was
attached to the petition for adoption. Petitioner's consent, as the natural
father is lacking. Nonetheless, the petition sufficiently alleged the fact of
abandonment of the minors for adoption by the natural father as follows:
3. That the children's mother, sister of petitioner RONALD
V. CLAVANO, has given her express consent to this
adoption, as shown by Affidavit of Consent, Annex "A".
Likewise, the written consent of Keith Cang, now 14 years
of age appears on page 2 of this petition; However, the
father of the children, Herbert Cang, had already left his
wife and children and had already divorced the former, as
evidenced by the xerox copy of the DECREE OF DIVORCE
issued by the County of Washoe, State of Nevada, U.S.A.
(Annex "B") which was filed at the instance of Mr. Cang,
not long after he abandoned his family to live in the United
States as an illegal immigrant. 15
The allegations of abandonment in the petition for adoption, even absent
the written consent of petitioner, sufficiently vested the lower court with
jurisdiction since abandonment of the child by his natural parents is one of
the circumstances under which our statutes and jurisprudence 16 dispense
with the requirement of written consent to the adoption of their minor
children.
However, in cases where the father opposes the adoption primarily
because his consent thereto was not sought, the matter of whether he had
abandoned his child becomes a proper issue for determination. The issue
of abandonment by the oppositor natural parent is a preliminary issue that
an adoption court must first confront. Only upon, failure of the oppositor
natural father to prove to the satisfaction of the court that he did not
abandon his child may the petition for adoption be considered on its
merits.
As a rule, factual findings of the lower courts are final and binding upon
this Court. 17 This Court is not expected nor required to examine or
contrast the oral and documentary evidence submitted by the
parties. 18 However, although this Court is not a trier of facts, it has the
authority to review and reverse the factual findings of the lower courts if it
that these do not conform to the evidence on record. 19

In Reyes v. Court of Appeals, 20 this Court has held that the exceptions to
the rule that factual findings of the trial court are final and conclusive and
may not be reviewed on appeal are the following: (1) when the inference
made is manifestly mistaken, absurd or impossible; (2) when there is a
grave abuse of discretion; (3) when the finding is grounded entirely on
speculations, surmises or conjectures; (4) when the judgment of the Court
of Appeals is based on misapprehension of facts; (5) when the findings of
fact are conflicting; (6) when the Court of Appeals, in making its findings,
went beyond the issues of the case and the same is contrary to the
admissions of both appellant and appellee; (7) when the findings of the
Court of Appeals are contrary to those of the trial court; (8) when the
findings of fact are conclusions without citation of specific evidence on
which they are based; (9) when the Court of Appeals manifestly
overlooked certain relevant facts not disputed by the parties and which, if
properly considered, would justify a different conclusion and (10) when the
findings of fact of the Court of Appeals are premised on the absence of
evidence and are contradicted by the evidence on record.
This Court finds that both the lower court and the Court of Appeals failed
to appreciate facts and circumstances that should have elicited a different
conclusion 21 on the issue of whether petitioner has so abandoned his
children, thereby making his consent to the adoption unnecessary.
In its ordinary sense, the word "abandon'' means to forsake entirely, to
forsake or renounce utterly. The dictionaries trace this word to the root
idea of "putting under a ban." The emphasis is on the finality and publicity
with which a thing or body is thus put in the control of another, hence, the
meaning of giving up absolutely, with intent never to resume or claim
one's rights or interests. 22 In reference to abandonment of a child by his
parent, the act of abandonment imports "any conduct of the parent which
evinces a settled purpose to forego all parental duties and relinquish all
parental claims to the child." It means "neglect or refusal to perform the
natural and legal obligations of care and support which parents owe their
children." 23
In the instant case, records disclose that petitioner's conduct did not
manifest a settled purpose to forego all parental duties and relinquish all
parental claims over his children as to, constitute abandonment. Physical
estrangement alone, withoutfinancial and moral desertion, is not
tantamount to abandonment. 24 While admittedly, petitioner was physically
absent as he was then in the United States, he was not remiss in his
natural and legal obligations of love, care and support for his children. He

maintained regular communication with his wife and children through

letters and telephone. He used to send packages by mail and catered to
their whims.
Petitioner's testimony on the matter is supported by documentary
evidence consisting of the following handwritten letters to him of both his
wife and children:
1. Exh. 1 a 4-page updated letter of Menchu (Anna
Marie) addressed to "Dear Bert" on a C. Westates Carbon
Phil. Corp. stationery. Menchu stated therein that it had
been "a long time since the last time you've heard from
me excluding that of the phone conversation we've had."
She discussed petitioner's intention to buy a motorbike for
Keith, expressing apprehension over risks that could be
engendered by Keith's use of it. She said that in the "last
phone conversation" she had with petitioner on the
birthday of "Ma," she forgot to tell petitioner that Keith's
voice had changed; he had become a "bagito" or a teenager with many "fans" who sent him Valentine's cards. She
told him how Charmaine had become quite a talkative
"almost dalaga" who could carry on a conversation with
her angkong and how pretty she was in white dress when
she won among the candidates in the Flores de Mayo after
she had prayed so hard for it. She informed him, however,
that she was worried because Charmaine was vain and
wont to extravagance as she loved clothes. About Joeton
(Joseph Anthony), she told petitioner that the boy was
smart for his age and "quite spoiled" being the youngest of
the children in Lahug. Joeton was mischievous but Keith
was his idol with whom he would sleep anytime. She
admitted having said so much about the children-because
they might not have informed petitioner of "some
happenings and spices of life" about themselves. She said
that it was "just very exciting to know how they've grown
up and very pleasant, too, that each of them have (sic)
different characters." She ended the letter with the hope
that petitioner was "at the best of health." After extending
her regards "to all," she signed her name after the word
"Love." This letter was mailed on July 9, 1986 from Cebu
to petitioner whose address was P.O. Box 2445,
Williamson, West Virginia 25661 (Exh. 1-D).

2. Exh. 2 letter dated 11/13/84 on a green stationery

with golden print of "a note from Menchu" on the left upper
corner. Anna Marie stated that "we" wrote to petitioner on
Oct. 2, 1984 and that Keith and Joeton were very excited
when petitioner "called up last time." She told him how
Joeton would grab the phone from Keith just so petitioner
would know what he wanted to order. Charmaine, who was
asleep, was so disappointed that she missed petitioner's
call because she also wanted something that petitioner
should buy. Menchu told petitioner that Charmaine wanted
a pencil sharpener, light-colored T-shirts for her walking
shorts and a (k)nap sack. Anna Marie informed petitioner
that the kids were growing up and so were their needs.
She told petitioner to be "very fatherly" about the
children's needs because those were expensive here. For
herself, Anna Marie asked for a subscription of Glamour
and Vogue magazines and that whatever expenses he
would incur, she would "replace" these. As a postscript,
she told petitioner that Keith wanted a size 6 khaki-colored
"Sperry topsider shoes."
3. Exh. 3 an undated note on a yellow small piece of
paper that reads:
Dear Herbert,
Hi, how was Christmas and New Year? Hope you had a
wonderful one.
By the way thanks for the shoes, it was a nice one. It's
nice to be thought of at X'mas. Thanks again.

Sincerely
Menchu
4. Exh. 4 a two-page undated letter of Keith on stationery of Jose
Clavano, Inc. addressed to "Dear Dad." Keith told his father that they tried
to tell their mother "to stay for a little while, just a few weeks after classes
start(s)" on June 16. He informed petitioner that Joeton would be in Kinder
I and that, about the motorbike, he had told his mother to write petitioner
about it and "we'll see what you're (sic) decision will be." He asked for

chocolates, nuts, basketball shirt and shorts, rubber shoes, socks,

headband, some clothes for outing and perfume. He told petitioner that
they had been going to Labug with their mother picking them up
after Angkong or Ama had prepared lunch or dinner. From her aerobics, his
mother would go for them in Lahug at about 9:30 or 10:00 o'clock in the
evening. He wished his father "luck and the best of health" and that they
prayed for him and their other relatives. The letter was ended with "Love
Keith."
5. Exh. 5 another undated long letter of Keith. He
thanked his father for the Christmas card "with $40.00,
$30.00 and $30.00" and the "card of Joeton with $5.00
inside." He told petitioner the amounts following his
father's instructions and promise to send money through
the mail. He asked his father to address his letter directly
to him because he wanted to open his own letters. He
informed petitioner of activities during the Christmas
season that they enjoyed eating, playing and giving
surprises to their mother. He apprised him of his daily
schedule and that their mother had been closely
supervising them, instructing them to fold their blankets
and pile up their pillows. He informed petitioner that
Joeton had become very smart while Charmaine, who was
also smart, was very demanding of their mother. Because
their mother was leaving for the United States on February
5, they would be missing her like they were missing
petitioner. He asked for his "things" and $200.00. He told
petitioner more anecdotes about Joeton like he would
make the sign of the cross even when they would pass by
the Iglesia ni Cristo church and his insistence that Aquino
was not dead because he had seen him on the betamax
machine. For Keith, Charmaine had become "very maldita"
who was not always satisfied with her dolls and things but
Joeton was full of surprises. He ended the letter with "Love
your son, Keith." The letter was mailed on February 6,
1985 (Exh. 5-D).
6. Exh. 6 an undated letter Charmaine. She thanked
petitioner for the bathing suit, key chain, pencil box, socks,
half shirt, pencil sharpener and $50.00. She reminded him
of her birthday on January 23 when she would turn 9 years
old. She informed him that she wore size 10 and the size

of her feet was IM. They had fun at Christmas in Lahug but
classes would start on January 9 although Keith's classes
had started on January 6. They would feel sad again
because Mommy would be leaving soon. She hoped
petitioner would keep writing them. She signed, "Love,
Charmaine."
7. Exh . 7 an undated letter of Keith. He explained to
petitioner that they had not been remiss in writing letters
to him. He informed him of their trip to Manila they
went to Malacaang, Tito Doy Laurel's house, the Ministry
of Foreign Affairs, the executive house, Tagaytay for three
days and Baguio for one week. He informed him that he
got "honors," Charmaine was 7th in her class and Joeton
had excellent grades. Joeton would be enrolled in Sacred
Heart soon and he was glad they would be together in that
school. He asked for his "reward" from petitioner and so
with Charmaine and Joeton. He asked for a motorbike and
dollars that he could save. He told petitioner that he was
saving the money he had been sending them. He said he
missed petitioner and wished him the best. He added that
petitioner should call them on Sundays.
8. Exh. 8 a letter from Joeton and Charmaine but
apparently written by the latter. She asked for money from
petitioner to buy something for the school and "something
else." She, promised not to spend so much and to save
some. She said she loved petitioner and missed him.
Joeton said "hi!" to petitioner. After ending the letter with
"Love, Joeton and Charmaine," she asked for her prize for
her grades as she got seventh place.
9. Exh. 9 undated letter of Keith. He assured petitioner
that he had been writing him; that he would like to have
some money but he would save them; that he learned that
petitioner had called them up but he was not around; that
he would be going to Manila but would be back home May
3; that his Mommy had just arrived Thursday afternoon,
and that he would be the "official altar boy." He asked
petitioner to write them soon.

10. Exh. 10 Keith thanked petitioner for the money he

sent. He told petitioner that he was saving some in the
bank and he was proud because he was the only one in his
group who saved in the bank. He told him that Joeton had
become naughty and would claim as his own the shirts
sent to Keith by petitioner. He advised petitioner to send
pants and shirts to Joeton, too, and asked for a pair of
topsider shoes and candies. He informed petitioner that he
was a member of the basketball team and that his mom
would drive for his group. He asked him to call them often
like the father of Ana Christie and to write them when he
would call so that they could wait for it. He informed
petitioner that they had all grown bigger and heavier. He
hoped petitioner would be happy with the letter that had
taken him so long to write because he did not want to
commit any mistakes. He asked petitioner to buy him
perfume (Drakkar) and, after thanking petitioner, added
that the latter should buy something for Mommy.
11. Exh. 11 a Christmas card "For My Wonderful Father"
dated October 8, 1984 from Keith, Charmaine and Joeton.
12. Exh. 12 another Christmas card, "Our Wish For You"
with the year '83 written on the upper right hand corner of
the inside page, from Keith, Charmaine and Joeton.
13. Exh. 13 a letter of Keith telling petitioner that he
had written him even when their Mom "was there" where
she bought them clothes and shoes. Keith asked petitioner
for $300.00. Because his mother would not agree to buy
him a motorbike, he wanted a Karaoke unit that would cost
P12,000.00. He informed petitioner that he would go to an
afternoon disco with friends but their grades were all good
with Joeton receiving "stars" for excellence. Keith wanted a
bow and arrow Rambo toys and G.I. Joe. He expressed his
desire that petitioner would come and visit them someday.
14. Exh. 14 a letter of Keith with one of the four pages
bearing the date January 1986. Keith told his father that
they had received the package that the latter sent them.
The clothes he sent, however, fitted only Keith but not
Charmaine and Joeton who had both grown bigger. Keith

asked for grocery items, toys and more clothes. He asked,

in behalf of his mother, for low-heeled shoes and a dress to
match, jogging pants, tights and leotards that would make
her look sexy. He intimated to petitioner that he had grown
taller and that he was already ashamed to be asking for
things to buy in the grocery even though his mother had
told him not to be shy about it.
Aside from these letters, petitioner also presented certifications of banks in
the U.S.A. showing that even prior to the filing of the petition for adoption,
he had deposited amounts for the benefit of his children. 25 Exhibits 24 to
45 are copies of checks sent by petitioner to the children from 1985 to
1989.
These pieces of evidence are all on record. It is, therefore, quite surprising
why the courts below simply glossed over these, ignoring not only
evidence on financial support but also the emotional exchange of
sentiments between petitioner and his family. Instead, the courts below
emphasized the meagerness of the amounts he sent to his children and
the fact that, as regards the bank deposits, these were "withdrawable by
him alone." Simply put, the courts below attached a high premium to the
prospective adopters' financial status but totally brushed aside the possible
repercussion of the adoption on the emotional and psychological well-being
of the children.
True, Keith had expressed his desire to be adopted by his uncle and aunt.
However, his seeming steadfastness on the matter as shown by his
testimony is contradicted by his feelings towards his father as revealed in
his letters to him. It is not at all farfetched to conclude that Keith's
testimony was actually the effect of the filing of the petition for adoption
that would certainly have engendered confusion in his young mind as to
the capability of his father to sustain the lifestyle he had been used to.
The courts below emphasized respondents' emotional attachment to the
children. This is hardly surprising for, from the very start of their young
lives, the children were used to their presence. Such attachment had
persisted and certainly, the young ones' act of snuggling close to private
respondent Ronald Clavano was not indicative of their emotional
detachment from their father. Private respondents, being the uncle and
aunt of the children, could not but come to their succor when they needed
help as when Keith got sick and private respondent Ronald spent for his
hospital bills.

In a number of cases, this Court has held that parental authority cannot be
entrusted to a person simply because he could give the child a larger
measure of material comfort than his natural parent. Thus, in David v.
Court of Appeals,26 the Court awarded custody of a minor illegitimate child
to his mother who was a mere secretary and market vendor instead of to
his affluent father who was a married man, not solely because the child
opted to go with his mother. The Court said:
Daisie and her children may not be enjoying a life of
affluence that private respondent promises if the child lives
with him. It is enough, however, that petitioner is earning
a decent living and is able to support her children
according to her means.
In Celis v. Cafuir 27 where the Court was confronted with the issue of
whether to award custody of a child to the natural mother or to a foster
mother, this Court said:
This court should avert the tragedy in the years to come of
having deprived mother and son of the beautiful
associations
and
tender,
imperishable
memories
engendered by the relationship of parent and child. We
should not take away from a mother the opportunity of
bringing up her own child even at the cost of extreme
sacrifice due to poverty and lack of means; so that
afterwards, she may be able to look back with pride and a
sense of satisfaction at her sacrifices and her efforts,
however humble, to make her dreams of her little boy
come true. We should not forget that the relationship
between a foster mother and a child is not natural but
artificial. If the child turns out to be a failure or forgetful of
what its foster parents had done for him, said parents
might yet count and appraise (sic) all that they have done
and spent for him and with regret consider all of it as a
dead loss, and even rue the day they committed the
blunder of taking the child into their hearts and their
home. Not so with a real natural mother who never counts
the cost and her sacrifices, ever treasuring memories of
her associations with her child, however unpleasant and
disappointing. Flesh and blood count. . . . .

In Espiritu v. Court of Appeals, 28 the Court stated that "(I)n ascertaining

the welfare and best interests of the child, courts are mandated by the
Family Code to take into account all relevant considerations." Thus, in
awarding custody of the child to the father, the Court said:
A scrutiny of the pleadings in this case indicates that
Teresita, or at least, her counsel are more intent on
emphasizing the "torture and agony" of a mother
separated from her children and the humiliation she
suffered as a, result of her character being made a key
issue in court rather than the feelings and future, the best
interests and welfare of her children. While the bonds
between a mother and her small child are special in
nature, either parent, whether father or mother, is bound
to suffer agony and pain if deprived of custody. One
cannot say that his or her suffering is greater than that of
the other parent. It is not so much the suffering, pride,
and other feelings of either parent but the welfare of the
child which is the paramount consideration. (Emphasis
supplied) 29
Indeed, it would be against the spirit of the law if financial consideration
were to be the paramount consideration in deciding whether to deprive a
person of parental authority over his children. There should be a holistic
approach to the matter, taking into account the physical, emotional,
psychological, mental, social and spiritual needs of the child. 30 The
conclusion of the courts below that petitioner abandoned his family needs
more evidentiary support other than his inability to provide them the
material comfort that his admittedly affluent in-laws could provide. There
should be proof that he had so emotionally abandoned them that his
children would not miss his guidance and counsel if they were given to
adopting parents. The letters he received from his children prove that
petitioner maintained the more important emotional tie between him and
his children. The children needed him not only because he could cater to
their whims but also because he was a person they could share with their
daily activities, problems and triumphs.
The Court is thus dismayed that the courts below did not look beyond
petitioner's "meager" financial support to ferret out other indications on
whether petitioner had in fact abandoned his family. The omission of said
courts has led us to examine why the children were subjected to the
process of adoption, notwithstanding the proven ties that bound them to

their father. To our consternation, the record of the case bears out the fact
that the welfare of the children was not exactly the "paramount
consideration" that impelled Anna Marie to consent to their adoption.
In her affidavit of consent, Anna Marie expressly said that leaving the
children in the country, as she was wont to travel abroad often, was a
problem that would naturally hamper her job-seeking abroad. In other
words, the adoption appears to be a matter of convenience for her
because Anna Marie herself is financially capable of supporting her
children. 31 In his testimony, private respondent Ronald swore that Anna
Marie had been out of the country for two years and came home twice or
three times, 32 thereby manifesting the fact that it was she who actually
left her children to the care of her relatives. It was bad enough that their
father left their children when he went abroad, but when their mother
followed suit for her own reasons, the situation worsened. The Clavano
family must have realized this. Hence, when the family first discussed the
adoption of the children, they decided that the prospective adopter should
be Anna Marie's brother Jose. However, because he had children of his
own, the family decided to devolve the task upon private respondents. 33
This couple, however, could not always be in Cebu to care for the children.
A businessman, private respondent Ronald Clavano commutes between
Cebu and Manila while his wife, private respondent Maria Clara, is an
international flight stewardess. 34 Moreover, private respondent Ronald
claimed that he could "take care of the children while their parents are
away," 35 thereby indicating the evanescence of his intention. He wanted to
have the children's surname changed to Clavano for the reason that he
wanted to take them to the United States as it would be difficult for them
to get a visa if their surname were different from his. 36 To be sure, he also
testified that he wanted to spare the children the stigma of being products
of a broken home.
Nevertheless, a close analysis of the testimonies of private respondent
Ronald, his sister Anna Marie and their brother Jose points to the
inescapable conclusion that they just wanted to keep the children away
from their father. One of the overriding considerations for the adoption was
allegedly the state of Anna Marie's health she was a victim of an almost
fatal accident and suffers from a heart ailment. However, she herself
admitted that her health condition was not that serious as she could still
take care of the children. 37 An eloquent evidence of her ability to
physically care for them was her employment at the Philippine Consulate in
Los Angeles 38 she could not have been employed if her health were

endangered. It is thus clear that the Clavanos' attempt at depriving

petitioner of parental authority apparently stemmed from their notion that
he was an inveterate womanizer. Anna Marie in fact expressed fear that
her children would "never be at ease with the wife of their father." 39
Petitioner, who described himself as single in status, denied being a
womanizer and father to the sons of Wilma Soco. 40 As to whether he was
telling the truth is beside the point. Philippine society, being comparatively
conservative and traditional, aside from being Catholic in orientation, it
does not countenance womanizing on the part of a family man, considering
the baneful effects such irresponsible act visits on his family. Neither may
the Court place a premium on the inability of a man to distinguish between
siring children and parenting them. Nonetheless, the actuality that
petitioner carried on an affair with a paramour cannot be taken as
sufficient basis for the conclusion that petitioner was necessarily an unfit
father. 41Conventional wisdom and common human experience show that a
"bad" husband does not necessarily make a "bad" father. That a husband
is not exactly an upright man is not, strictly speaking, a sufficient ground
to deprive him as a father of his inherent right to parental authority over
the children. 42 Petitioner has demonstrated his love and concern for his
children when he took the trouble of sending a telegram 43 to the lower
court expressing his intention to oppose the adoption immediately after
learning about it. He traveled back to this country to attend to the case
and to testify about his love for his children and his desire to unite his
family once more in the United States. 44
Private respondents themselves explained why petitioner failed to abide by
the agreement with his wife on the support of the children. Petitioner was
an illegal alien in the United States. As such, he could not have procured
gainful employment. Private respondents failed to refute petitioner's
testimony that he did not receive his share from the sale of the conjugal
home, 45pursuant to their manifestation/compromise agreement in the
legal separation case. Hence, it can be reasonably presumed that the
proceeds of the sale redounded to the benefit of his family, particularly his
children. The proceeds may not have lasted long but there is ample
evidence to show that thereafter, petitioner tried to abide by his
agreement with his wife and sent his family money, no matter how
"meager."
The liberality with which this Court treats matters leading to adoption
insofar as it carries out the beneficent purposes of the law to ensure the
rights and privileges of the adopted child arising therefrom, ever mindful

that the paramount consideration is the overall benefit and interest of the
adopted child, should be understood in its proper context and perspective.
The Court's position, should not be misconstrued or misinterpreted as to
extend to inferences beyond the contemplation of law and
jurisprudence. 46 The discretion to approve adoption proceedings is not to
be anchored solely on best interests of the child but likewise, with due
regard to the natural rights of the parents over the child. 47
In this regard, this Court notes private respondents' reliance on the
manifestation/compromise agreement between petitioner and Anna Marie
which became the basis of the decree of legal separation. According to
private respondents' counsel, 48 the authority given to Anna Marie by that
decree to enter into contracts as a result of the legal separation was "all
embracing" 49and, therefore, included giving her sole consent to the
adoption. This conclusion is however, anchored on the wrong premise that
the authority given to the innocent spouse to enter into contracts that
obviously refer to their conjugal properties, shall include entering into
agreements leading to the adoption of the children. Such conclusion is as
devoid of a legal basis as private respondents' apparent reliance on the
decree of legal separation for doing away with petitioner's consent to the
adoption.
The transfer of custody over the children to Anna Marie by virtue of the
decree of legal separation did not, of necessity; deprive petitioner of
parental authority for the purpose of placing the children up for adoption.
Article 213 of the Family Code states: ". . . in case of legal separation of
parents, parental authority shall be exercised by the parent designated by
the court." In awarding custody, the court shall take into account "all
relevant considerations, especially the choice of the child over seven years
of age, unless the parent chosen is unfit."
If should be noted, however, that the law only confers on the innocent
spouse the "exercise" of parental authority. Having custody of the child,
the innocent spouse shall implement the sum of parental rights with
respect to his rearing and care. The innocent spouse shall have the right to
the child's services and earnings, and the right to direct his activities and
make decisions regarding his care and control, education, health and
religion. 50
In a number of cases, this Court has considered parental authority,
the joint exercise of which is vested by the law upon the parents, 51 as

. . . a mass of rights and obligations which the law grants

to parents for the purpose of the children's physical
preservation and development, as well as the cultivation of
their intellect and the education of their hearts and senses.
As regards parental authority, "there is no power, but a
task; no complex of rights, but a sum of duties; no
sovereignty but a sacred trust for the welfare of the
minor."
Parental authority and responsibility are inalienable and
may not be transferred or renounced except in cases
authorized by law. The right attached to parental authority,
being purely personal, the law allows a waiver of parental
authority only in cases of adoption, guardianship and
surrender to a children's home or an orphan institution.
When a parent entrusts the custody of a minor to another,
such as a friend or godfather, even in a document, what is
given is merely temporary custody and it does not
constitute a renunciation of parental authority. Even if a
definite renunciation is manifest, the law still disallows the
same.
The father and mother, being the natural guardians of
unemancipated children, are duty-bound and entitled to
keep them in their custody and company. 52 (Emphasis
supplied)
As such, in instant case, petitioner may not be deemed as having been
completely deprived of parental authority, notwithstanding the award of
custody to Anna Marie in the legal separation case. To reiterate, that award
was arrived at by the lower court on the basis of the agreement of the
spouses.
While parental authority may be waived, as in law it may be subject to a
compromise, 53 there was no factual finding in the legal separation case
that petitioner was such an irresponsible person that he should be
deprived of custody of his children or that there are grounds under the law
that could deprive him of parental authority. In fact, in the legal separation
case, the court thereafter ordered the transfer of custody over the children
from Anna Marie back to petitioner. The order was not implemented
because of Anna Marie's motion for reconsideration thereon. The Clavano
family also vehemently objected to the transfer of custody to the

petitioner, such that the latter was forced to file a contempt charge against
them. 54
The law is clear that either parent may lose parental authority over the
child only for a valid reason. No such reason was established in the legal
separation case. In the instant case for adoption, the issue is whether or
not petitioner had abandoned his children as to warrant dispensation of his
consent to their adoption. Deprivation of parental authority is one of the
effects of a decree of adoption. 55 But there cannot be a valid decree of
adoption in this case precisely because, as this Court has demonstrated
earlier, the finding of the courts below on the issue of petitioner's
abandonment of his family was based on a misappreciation that was
tantamount to non-appreciation, of facts on record.
As regards the divorce obtained in the United States, this Court has ruled
in Tenchavez v. Escao 56 that a divorce obtained by Filipino citizens after
the effectivity of the Civil Code is not recognized in this jurisdiction as it is
contrary to State policy. While petitioner is now an American citizen, as
regards Anna Marie who has apparently remained a Filipino citizen, the
divorce has no legal effect.
Parental authority is a constitutionally protected State policy borne out of
established customs and tradition of our people. Thus, in Silva v. Court of
Appeals, 57 a case involving the visitorial rights of an illegitimate parent
over his child, the Court expressed the opinion that:
Parents have the natural right, as well as the moral and
legal duty, to care for their children, see to their upbringing
and safeguard their best interest and welfare. This
authority and responsibility may not be unduly denied the
parents; neither may it be renounced by them. Even when
the parents are estranged and their affection for each
other is lost, the attachment and feeling for their offsprings
invariably remain unchanged. Neither the law not the
courts allow this affinity to suffer absent, of course, any
real, grave and imminent threat to the well being of the
child.
Since the incorporation of the law concerning adoption in the Civil Code,
there has been a pronounced trend to place emphasis in adoption
proceedings, not so much on the need of childless couples for a child, as
on the paramount interest, of a child who needs the love and care of

parents. After the passage of the Child and Youth Welfare Code and the
Family Code, the discernible trend has impelled the enactment of Republic
Act
No.
8043
on
Intercountry,
Adoption 58 and Republic Act No. 8552 establishing the rules on the
domestic adoption of Filipino children. 59
The case at bar applies the relevant provisions of these recent laws, such
as the following policies in the "Domestic Adoption Act of 1998":
(a) To ensure that every child remains
under the care and custody of his/her
parent(s) and be provided with love, care,
understanding and security towards the full
and harmonious development of his/her
personality. 60
(b) In all matters relating to the care,
custody and adoption of a child, his/her
interest
shall
be
the
paramount
consideration in accordance with the tenets
set forth in the United Nations (UN)
Convention on the Rights of the Child. 61
(c) To prevent the child from unnecessary
separation
from
his/her
biological
parent(s). 62
Inasmuch as the Philippines is a signatory to the United Nations
Convention on the Rights of the Child, the government and its officials are
duty bound to comply with its mandates. Of particular relevance to instant
case are the following provisions:
States Parties shall respect the responsibilities, rights and
duties of parents . . . to provide, in a manner consistent
with the evolving capacities of the child, appropriate
direction and guidance in the exercise by the child of the
rights recognized in the present Convention. 63
States Parties shall respect the right of the child who is
separated from one or both parents to maintain personal
relations and direct contact with both parents on a regular
basis, except if it is contrary to the child's best interests. 64

A child whose parents reside in different States shall have

the right to maintain on a regular basis, save in
exceptional circumstances personal relations and direct
contacts with both parents . . . 65
States Parties shall respect the rights and duties of the
parents . . . to provide direction to the child in the exercise
of his or her right in a manner consistent with the evolving
capacities of the child. 66

EN BANC
G.R. No. L-30977 January 31, 1972
CARMEN LAPUZ SY, represented by her substitute MACARIO
LAPUZ, petitioner-appellant,
vs.
EUFEMIO S. EUFEMIO alias EUFEMIO SY UY, respondent-appellee.
Jose W. Diokno for petitioner-appellant.

Underlying the policies and precepts in international conventions and the

domestic statutes with respect to children is the overriding principle that
all actuations should be in the best interests of the child. This is not,
however, to be implemented in derogation of the primary right of the
parent or parents to exercise parental authority over him. The rights of
parents vis--visthat of their children are not antithetical to each other, as
in fact, they must be respected and harmonized to the fullest extent
possible.
Keith, Charmaine and Joseph Anthony have all grown up. Keith and
Charmaine are now of legal age while Joseph Anthony is approaching
eighteen, the age of majority. For sure, they shall be endowed with the
discretion to lead lives independent of their parents. This is not to state
that this case has been rendered moot and academic, for their welfare and
best interests regarding their adoption, must be determined as of the time
that the petition for adoption was filed. 67 Said petition must be denied as
it was filed without the required consent of their father who, by law and
under the facts of the case at bar, has not abandoned them.
WHEREFORE, the instant petition for review on certiorari is hereby
GRANTED. The questioned Decision and Resolution of the Court of Appeals,
as well as the decision of the Regional Trial Court of Cebu, are SET ASIDE
thereby denying the petition for adoption of Keith, Charmaine and Joseph
Anthony, all surnamed Cang, by the spouse respondents Ronald and Maria
Clara Clavano. This Decision is immediately executory.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

D. G. Eufemio for respondent-appellee.

REYES J.B.L., J.:p
Petition, filed after the effectivity of Republic Act 5440, for review
by certiorari of an order, dated 29 July 1969, of the Juvenile and Domestic
Relations Court of Manila, in its Civil Case No. 20387, dismissing said case
for legal separation on the ground that the death of the therein plaintiff,
Carmen O. Lapuz Sy, which occurred during the pendency of the case,
abated the cause of action as well as the action itself. The dismissal order
was issued over the objection of Macario Lapuz, the heir of the deceased
plaintiff (and petitioner herein) who sought to substitute the deceased and
to have the case prosecuted to final judgment.
On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal
separation against Eufemio S. Eufemio, alleging, in the main, that they
were married civilly on 21 September 1934 and canonically on 30
September 1934; that they had lived together as husband and wife
continuously until 1943 when her husband abandoned her; that they had
no child; that they acquired properties during their marriage; and that she
discovered her husband cohabiting with a Chinese woman named Go Hiok
at 1319 Sisa Street, Manila, on or about March 1949. She prayed for the
issuance of a decree of legal separation, which, among others, would order
that the defendant Eufemio S. Eufemio should be deprived of his share of
the conjugal partnership profits.
In his second amended answer to the petition, herein respondent Eufemio
S. Eufemio alleged affirmative and special defenses, and, along with
several other claims involving money and other properties, counterclaimed for the declaration of nullity ab initio of his marriage with Carmen

O. Lapuz Sy, on the ground of his prior and subsisting marriage, celebrated
according to Chinese law and customs, with one Go Hiok, alias Ngo Hiok.
Issues having been joined, trial proceeded and the parties adduced their
respective evidence. But before the trial could be completed (the
respondent was already scheduled to present surrebuttal evidence on 9
and 18 June 1969), petitioner Carmen O. Lapuz Sy died in a vehicular
accident on 31 May 1969. Counsel for petitioner duly notified the court of
her death.
On 9 June 1969, respondent Eufemio moved to dismiss the "petition for
legal separation" 1 on two (2) grounds, namely: that the petition for legal
separation was filed beyond the one-year period provided for in Article 102
of the Civil Code; and that the death of Carmen abated the action for legal
separation.
On 26 June 1969, counsel for deceased petitioner moved to substitute the
deceased Carmen by her father, Macario Lapuz. Counsel for Eufemio
opposed the motion.
On 29 July 1969, the court issued the order under review, dismissing the
case. 2 In the body of the order, the court stated that the motion to dismiss
and the motion for substitution had to be resolved on the question of
whether or not the plaintiff's cause of action has survived, which the court
resolved in the negative. Petitioner's moved to reconsider but the motion
was denied on 15 September 1969.
After first securing an extension of time to file a petition for review of the
order of dismissal issued by the juvenile and domestic relations court, the
petitioner filed the present petition on 14 October 1969. The same was
given due course and answer thereto was filed by respondent, who prayed
for the affirmance of the said order. 3
Although the defendant below, the herein respondent Eufemio S. Eufemio,
filed counterclaims, he did not pursue them after the court below
dismissed the case. He acquiesced in the dismissal of said counterclaims
by praying for the affirmance of the order that dismissed not only the
petition for legal separation but also his counterclaim to declare the
Eufemio-Lapuz marriage to be null and void ab initio.

But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute

for the lower court did not act on the motion for substitution) stated the
principal issue to be as follows:
When an action for legal separation is converted by the
counterclaim into one for a declaration of nullity of a
marriage, does the death of a party abate the
proceedings?
The issue as framed by petitioner injects into it a supposed conversion of a
legal separation suit to one for declaration of nullity of a marriage, which is
without basis, for even petitioner asserted that "the respondent has
acquiesced to the dismissal of his counterclaim" (Petitioner's Brief, page
22). Not only this. The petition for legal separation and the counterclaim to
declare the nullity of the self same marriage can stand independent and
separate adjudication. They are not inseparable nor was the action for
legal separation converted into one for a declaration of nullity by the
counterclaim, for legal separation pre-supposes a valid marriage, while the
petition for nullity has a voidable marriage as a pre-condition.
The first real issue in this case is: Does the death of the plaintiff before
final decree, in an action for legal separation, abate the action? If it does,
will abatement also apply if the action involves property rights? .
An action for legal separation which involves nothing more than the bedand-board separation of the spouses (there being no absolute divorce in
this jurisdiction) is purely personal. The Civil Code of the Philippines
recognizes this in its Article 100, by allowing only the innocent spouse
(and no one else) to claim legal separation; and in its Article 108, by
providing that the spouses can, by their reconciliation, stop or abate the
proceedings and even rescind a decree of legal separation already
rendered. Being personal in character, it follows that the death of one
party to the action causes the death of the action itself actio personalis
moritur cum persona.
... When one of the spouses is dead, there is no need for
divorce, because the marriage is dissolved. The heirs
cannot even continue the suit, if the death of the spouse
takes place during the course of the suit (Article 244,
Section 3). The action is absolutely dead (Cass., July 27,
1871, D. 71. 1. 81; Cass. req., May 8, 1933, D. H. 1933,
332.") 4 .

Marriage is a personal relation or status, created under the

sanction of law, and an action for divorce is a proceeding
brought for the purpose of effecting a dissolution of that
relation. The action is one of a personal nature. In the
absence of a statute to the contrary, the death of one of
the parties to such action abates the action, for the reason
that death has settled the question of separation beyond
all controversy and deprived the court of jurisdiction, both
over the persons of the parties to the action and of the
subject-matter of the action itself. For this reason the
courts are almost unanimous in holding that the death of
either party to a divorce proceeding, before final decree,
abates the action. 1 Corpus Juris, 208; Wren v. Moss, 2
Gilman, 72; Danforth v. Danforth, 111 Ill. 236; Matter of
Grandall, 196 N.Y. 127, 89 N.E. 578; 134 Am St. Rep. 830;
17 Ann. Cas. 874; Wilcon v. Wilson, 73 Mich, 620, 41 N.W.
817; Strickland v. Strickland, 80 Ark. 452, 97 S. W. 659;
McCurley v. McCurley, 60 Md. 185, 45 Am. Rep. 717;
Begbie v. Begbie, 128 Cal. 155, 60 Pac. 667, 49 L.R.A.
141. 5
The same rule is true of causes of action and suits for separation and
maintenance (Johnson vs. Bates, Ark. 101 SW 412; 1 Corpus Juris 208).
A review of the resulting changes in property relations between spouses
shows that they are solely the effect of the decree of legal separation;
hence, they can not survive the death of the plaintiff if it occurs prior to
the decree. On the point, Article 106 of the Civil Code provides: .
Art. 106. The decree of legal separation shall have the
following effects:
(1) The spouses shall be entitled to live separately from
each other, but the marriage bonds shall not be severed; .
(2) The conjugal partnership of gains or the absolute
conjugal community of property shall be dissolved and
liquidated, but the offending spouse shall have no right to
any share of the profits earned by the partnership or
community, without prejudice to the provisions of article
176;

(3) The custody of the minor children shall be awarded to

the innocent spouse, unless otherwise directed by the
court in the interest of said minors, for whom said court
may appoint a guardian;
(4) The offending spouse shall be disqualified from
inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the offending
spouse made in the will of the innocent one shall be
revoked by operation of law.
From this article it is apparent that the right to the dissolution of the
conjugal partnership of gains (or of the absolute community of property),
the loss of right by the offending spouse to any share of the profits earned
by the partnership or community, or his disqualification to inherit by
intestacy from the innocent spouse as well as the revocation of
testamentary provisions in favor of the offending spouse made by the
innocent one, are all rights and disabilities that, by the very terms of the
Civil Code article, are vested exclusively in the persons of the spouses;
and by their nature and intent, such claims and disabilities are difficult to
conceive as assignable or transmissible. Hence, a claim to said rights is not
a claim that "is not thereby extinguished" after a party dies, under Section
17, Rule 3, of the Rules of Court, to warrant continuation of the action
through a substitute of the deceased party.
Sec. 17. Death of party. After a party dies and the claim is
not thereby extinguished, the court shall order, upon
proper notice, the legal representative of the deceased to
appear and to be substituted for the deceased, within a
period of thirty (30) days, or within such time as may be
granted...
The same result flows from a consideration of the enumeration of the
actions that survive for or against administrators in Section 1, Rule 87, of
the Revised Rules of Court:
SECTION 1. Actions which may and which may not be
brought against executor or administrator. No action upon
a claim for the recovery of money or debt or interest
thereon shall be commenced against the executor or
administrator; but actions to recover real or personal
property, or an interest therein, from the estate, or to

enforce a lien thereon, and actions to recover damages for

an injury to person or property, real or personal, may be
commenced against him.
Neither actions for legal separation or for annulment of marriage can be
deemed fairly included in the enumeration..
A further reason why an action for legal separation is abated by the death
of the plaintiff, even if property rights are involved, is that these rights are
mere effects of decree of separation, their source being the decree itself;
without the decree such rights do not come into existence, so that before
the finality of a decree, these claims are merely rights in expectation. If
death supervenes during the pendency of the action, no decree can be
forthcoming, death producing a more radical and definitive separation; and
the expected consequential rights and claims would necessarily remain
unborn.
As to the petition of respondent-appellee Eufemio for a declaration of
nullity ab initio of his marriage to Carmen Lapuz, it is apparent that such
action became moot and academic upon the death of the latter, and there
could be no further interest in continuing the same after her demise, that
automatically dissolved the questioned union. Any property rights acquired
by either party as a result of Article 144 of the Civil Code of the Philippines
6 could be resolved and determined in a proper action for partition by
either the appellee or by the heirs of the appellant.
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.
ACCORDINGLY, the appealed judgment of the Manila Court of Juvenile and
Domestic Relations is hereby affirmed. No special pronouncement as to
costs.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
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
Jalandoni & Jarnir for defendants-appellees.

for

plaintiff-appellant.

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 plaintiff-appellant, 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-todo and socially prominent Filipino family of Spanish ancestry and a
"sheltered colegiala"), exchanged marriage vows with Pastor Tenchavez,
32 years of age, an engineer, ex-army 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. "1Escao"), 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. "B-4").
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;.
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 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. 130-132).
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.
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 plaintiffappellant 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.

As shown in the records of the case, private respondent married Anna

Maria Regina Villanueva in a civil ceremony on March 29, 1977, in
Manila. Then they had a church wedding on August 27, 1977. However, on
August 4, 1980, the Juvenile and Domestic Relations Court of Quezon City
declared their marriage null and void ab initio for lack of a valid marriage
license. The church wedding on August 27, 1977, was also declared null
and void ab initio for lack of consent of the parties.
Even before the decree was issued nullifying his marriage to Anna
Maria, private respondent wed Ofelia P. Ty, herein petitioner, on April 4,
1979, in ceremonies officiated by the judge of the City Court of Pasay. On
April 4, 1982, they also had a church wedding in Makati, Metro Manila.
On January 3, 1991, private respondent filed a Civil Case 1853-J with
the RTC of Pasig, Branch 160, praying that his marriage to petitioner be
declared null and void. He alleged that they had no marriage license when
they got married. He also averred that at the time he married petitioner,
he was still married to Anna Maria. He stated that at the time he married
petitioner the decree of nullity of his marriage to Anna Maria had not been
issued. The decree of nullity of his marriage to Anna Maria was rendered
only on August 4, 1980, while his civil marriage to petitioner took place on
April 4, 1979.
SECOND DIVISION
[G.R. No. 127406. November 27, 2000]
OFELIA P. TY, petitioner, vs. THE COURT
EDGARDO M. REYES, respondents.

OF

APPEALS,

and

DECISION
QUISUMBING, J.:
This appeal seeks the reversal of the decision dated July 24, 1996, of
the Court of Appeals in C.A. G.R. CV 37897, which affirmed the decision of
the Regional Trial Court of Pasig, Branch 160, declaring the marriage
contract between private respondent Edgardo M. Reyes and petitioner
Ofelia P. Ty null and void ab initio. It also ordered private respondent to
pay P15,000.00 as monthly support for their children Faye Eloise Reyes
and Rachel Anne Reyes.

Petitioner, in defending her marriage to private respondent, pointed

out that his claim that their marriage was contracted without a valid
license is untrue. She submitted their Marriage License No. 5739990
issued at Rosario, Cavite on April 3, 1979, as Exh. 11, 12 and 12-A. He did
not question this document when it was submitted in evidence.Petitioner
also submitted the decision of the Juvenile and Domestic Relations Court of
Quezon City dated August 4, 1980, which declared null and void his civil
marriage to Anna Maria Regina Villanueva celebrated on March 29, 1977,
and his church marriage to said Anna Maria on August 27, 1977. These
documents were submitted as evidence during trial and, according to
petitioner, are therefore deemed sufficient proof of the facts therein. The
fact that the civil marriage of private respondent and petitioner took place
on April 4, 1979, before the judgment declaring his prior marriage as null
and void is undisputed. It also appears indisputable that private
respondent and petitioner had a church wedding ceremony on April 4,
1982.[1]
The Pasig RTC sustained private respondents civil suit and declared
his marriage to herein petitioner null and void ab initio in its decision dated

November 4, 1991. Both parties appealed to respondent Court of

Appeals. On July 24, 1996, the appellate court affirmed the trial courts
decision. It ruled that a judicial declaration of nullity of the first marriage
(to Anna Maria) must first be secured before a subsequent marriage could
be validly contracted. Said the appellate court:

BOTH IN THE DECISION AND THE RESOLUTION, IN REQUIRING FOR THE

VALIDITY OF PETITIONERS MARRIAGE TO RESPONDENT, A JUDICIAL
DECREE NOT REQUIRED BY LAW.

We can accept, without difficulty, the doctrine cited by defendants counsel

that no judicial decree is necessary to establish the invalidity of void
marriages. It does not say, however, that a second marriage may proceed
even without a judicial decree. While it is true that if a marriage is null and
void, ab initio, there is in fact no subsisting marriage, we are unwilling to
rule that the matter of whether a marriage is valid or not is for each
married spouse to determine for himself for this would be the consequence
of allowing a spouse to proceed to a second marriage even before a
competent court issues a judicial decree of nullity of his first marriage. The
results would be disquieting, to say the least, and could not have been the
intendment of even the now-repealed provisions of the Civil Code on
marriage.

IN THE RESOLUTION, IN APPLYING THE RULING IN DOMINGO VS. COURT

OF APPEALS.

xxx
WHEREFORE, upon the foregoing ratiocination, We modify the appealed
Decision in this wise:
1. The marriage contracted by plaintiff-appellant [herein private
respondent] Eduardo M. Reyes and defendant-appellant
[herein petitioner] Ofelia P. Ty is declared null and void ab
initio;

II

III
IN BOTH THE DECISION AND RESOLUTION IN NOT CONSIDERING THE
CIVIL EFFECTS OF THE RELIGIOUS RATIFICATION WHICH USED THE SAME
MARRIAGE LICENSE.
IV
IN THE DECISION NOT GRANTING MORAL AND EXEMPLARY DAMAGES TO
THE DEFENDANT-APPELLANT.
The principal issue in this case is whether the decree of nullity of the
first marriage is required before a subsequent marriage can be entered
into validly? To resolve this question, we shall go over applicable laws and
pertinent cases to shed light on the assigned errors, particularly the first
and the second which we shall discuss jointly.

SO ORDERED.[2]

In sustaining the trial court, the Court of Appeals declared the

marriage of petitioner to private respondent null and void for lack of a
prior judicial decree of nullity of the marriage between private respondent
and Villanueva. The appellate court rejected petitioners claim that People
v. Mendoza[3] and People v. Aragon[4] are applicable in this case.For these
cases held that where a marriage is void from its performance, no judicial
decree is necessary to establish its invalidity. But the appellate court said
these cases, decided before the enactment of the Family Code (E.O. No.
209 as amended by E.O No. 227), no longer control. A binding decree is
now needed and must be read into the provisions of law previously
obtaining.[5]

Petitioners motion for reconsideration was denied. Hence, this instant

petition asserting that the Court of Appeals erred:

In refusing to consider petitioners appeal favorably, the appellate

court also said:

2. Plaintiff-appellant Eduardo M. Reyes is ordered to give monthly

support in the amount of P15,000.00 to his children Faye
Eloise Reyes and Rachel Anne Reyes from November 4, 1991;
and
3. Cost against plaintiff-appellant Eduardo M. Reyes.

I.

Terre v. Attorney Terre, Adm. Case No. 2349, 3 July 1992 is mandatory
precedent for this case. Although decided by the High Court in 1992, the
facts situate it within the regime of the now-repealed provisions of the Civil
Code, as in the instant case.
xxx
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. . . .[6]
At the outset, we must note that private respondents first and second
marriages contracted in 1977 and 1979, respectively, are governed by the
provisions of the Civil Code.The present case differs significantly from the
recent cases of Bobis v. Bobis[7] and Mercado v. Tan,[8] both involving
a criminal case for bigamy where the bigamous marriage was contracted
during the effectivity of the Family Code, [9] under which a judicial
declaration of nullity of marriage is clearly required.
Pertinent to the present controversy, Article 83 of the Civil Code
provides that:
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 before any
person 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.
As to whether a judicial declaration of nullity of a void marriage is
necessary, the Civil Code contains no express provision to that
effect. Jurisprudence on the matter, however, appears to be conflicting.

Originally, in People v. Mendoza,[10] and People v. Aragon,[11] this

Court held that no judicial decree is necessary to establish the nullity of a
void marriage. Both cases involved the same factual milieu. Accused
contracted a second marriage during the subsistence of his first
marriage. After the death of his first wife, accused contracted a third
marriage during the subsistence of the second marriage. The second wife
initiated a complaint for bigamy. The Court acquitted accused on the
ground that the second marriage is void, having been contracted during
the existence of the first marriage. There is no need for a judicial
declaration that said second marriage is void. Since the second marriage is
void, and the first one terminated by the death of his wife, there are no
two subsisting valid marriages. Hence, there can be no bigamy. Justice
Alex Reyes dissented in both cases, saying that it is not for the spouses
but the court to judge whether a marriage is void or not.
In Gomez v. Lipana,[12] and Consuegra v. Consuegra,[13] however, we
recognized the right of the second wife who entered into the marriage in
good faith, to share in their acquired estate and in proceeds of the
retirement insurance of the husband. The Court observed that although
the second marriage can be presumed to be void ab initio as it was
celebrated while the first marriage was still subsisting, still there was a
need for judicial declaration of such nullity (of the second marriage). And
since the death of the husband supervened before such declaration, we
upheld the right of the second wife to share in the estate they acquired, on
grounds of justice and equity.[14]
But
in Odayat
v.
Amante (1977),[15] the
Court
adverted
to Aragon and Mendoza as precedents. We exonerated a clerk of court of
the charge of immorality on the ground that his marriage to Filomena
Abella in October of 1948 was void, since she was already previously
married to one Eliseo Portales in February of the same year. The Court
held that no judicial decree is necessary to establish the invalidity of void
marriages. This ruling was affirmed in Tolentino v. Paras.[16]
Yet again in Wiegel v. Sempio-Diy (1986),[17] the Court held that there
is a need for a judicial declaration of nullity of a void marriage. In Wiegel,
Lilia married Maxion in 1972.In 1978, she married another man,
Wiegel. Wiegel filed a petition with the Juvenile Domestic Relations Court
to declare his marriage to Lilia as void on the ground of her previous valid
marriage. The Court, expressly relying on Consuegra, concluded that:[18]

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 (citing Consuegra) 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. (Emphasis supplied).
In Yap v. Court of Appeals,[19] however, the Court found the second
marriage void without need of judicial declaration, thus reverting to
the Odayat, Mendoza and Aragonrulings.
At any rate, the confusion under the Civil Code was
the Family Code. Our rulings in Gomez, Consuegra,
eventually embodied in Article 40 of the Family Code. [20]
Code expressly required a judicial declaration of nullity of

put to rest under

and Wiegel were
Article 40 of said
marriage

Art. 40. The absolute nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final judgment declaring
such previous marriage void.
In Terre
v.
Terre (1992)[21] the
Court,
applying Gomez,
Consuegra and Wiegel, categorically stated that a judicial declaration of
nullity of a void marriage is necessary. Thus, we disbarred a lawyer for
contracting a bigamous marriage during the subsistence of his first
marriage. He claimed that his first marriage in 1977 was void since his
first wife was already married in 1968. We held that Atty. Terre should
have known that the prevailing case law is 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.
The Court applied this ruling in subsequent cases. In Domingo v.
Court of Appeals (1993),[22] the Court held:
Came the Family Code which settled once and for all the conflicting
jurisprudence on the matter. A declaration of absolute nullity of marriage is
now explicitly required either as a cause of action or a ground for
defense. (Art. 39 of the Family Code). Where the absolute nullity of a
previous marriage is sought to be invoked for purposes of contracting a
second marriage, the sole basis acceptable in law for said projected

marriage to be free from legal infirmity is a final judgment declaring the

previous marriage void. (Family Code, Art. 40; See also arts. 11, 13, 42,
44, 48, 50, 52, 54, 86, 99, 147, 148).[23]
However, a recent case applied the old rule because of the peculiar
circumstances of the case. In Apiag v. Cantero, (1997)[24] the first wife
charged a municipal trial judge of immorality for entering into a second
marriage. The judge claimed that his first marriage was void since he was
merely forced into marrying his first wife whom he got pregnant.On the
issue
of
nullity
of
the
first
marriage,
we
applied Odayat, Mendoza and Aragon. We held that since the second
marriage took place and all the children thereunder were born before the
promulgation of Wiegel and the effectivity of the Family Code, there is no
need for a judicial declaration of nullity of the first marriage pursuant to
prevailing jurisprudence at that time.
Similarly, in the present case, the second marriage of private
respondent was entered into in 1979, before Wiegel. At that time, the
prevailing rule was found in Odayat, Mendoza and Aragon. The first
marriage of private respondent being void for lack of license and consent,
there was no need for judicial declaration of its nullity before he could
contract a second marriage. In this case, therefore, we conclude that
private respondents second marriage to petitioner is valid.
Moreover, we find that the provisions of the Family Code cannot be
retroactively applied to the present case, for to do so would prejudice the
vested rights of petitioner and of her children. As held in Jison v. Court of
Appeals,[25] the Family Code has retroactive effect unless there be
impairment of vested rights. In the present case, that impairment of
vested rights of petitioner and the children is patent. Additionally, we are
not quite prepared to give assent to the appellate courts finding that
despite private respondents deceit and perfidy in contracting marriage with
petitioner, he could benefit from her silence on the issue. Thus, coming
now to the civil effects of the church ceremony wherein petitioner married
private respondent using the marriage license used three years earlier in
the civil ceremony, we find that petitioner now has raised this matter
properly. Earlier petitioner claimed as untruthful private respondents
allegation that he wed petitioner but they lacked a marriage
license. Indeed we find there was a marriage license, though it was the
same license issued on April 3, 1979 and used in both the civil and the
church rites. Obviously, the church ceremony was confirmatory of their
civil marriage. As petitioner contends, the appellate court erred when it

refused to recognize the validity and salutary effects of said canonical

marriage on a technicality, i.e. that petitioner had failed to raise this
matter as affirmative defense during trial. She argues that such failure
does
not
prevent
the
appellate
court
from giving her defense due consideration and weight. She adds that the
interest of the State in protecting the inviolability of marriage, as a legal
and social institution, outweighs such technicality. In our view, petitioner
and private respondent had complied with all the essential and formal
requisites for a valid marriage, including the requirement of a valid license
in the first of the two ceremonies.That this license was used legally in the
celebration of the civil ceremony does not detract from the ceremonial use
thereof in the church wedding of the same parties to the marriage, for we
hold that the latter rites served not only to ratify but also to fortify the
first. The appellate court might have its reasons for brushing aside this
possible defense of the defendant below which undoubtedly could have
tendered a valid issue, but which was not timely interposed by her before
the trial court. But we are now persuaded we cannot play blind to the
absurdity, if not inequity, of letting the wrongdoer profit from what the CA
calls his own deceit and perfidy.

7, 1996, are reversed partially, so that the marriage of petitioner Ofelia P.

Ty and private respondent Edgardo M. Reyes is hereby DECLARED VALID
AND SUBSISTING; and the award of the amount of P15,000.00 is
RATIFIED and MAINTAINED as monthly support to their two children, Faye
Eloise Reyes and Rachel Anne Reyes, for as long as they are of minor age
or otherwise legally entitled thereto. Costs against private respondent.
SO ORDERED.

On the matter of petitioners counterclaim for damages and attorneys

fees. Although the appellate court admitted that they found private
respondent acted duplicitously and craftily in marrying petitioner, it did not
award moral damages because the latter did not adduce evidence to
support her claim.[26]
Like the lower courts, we are also of the view that no damages should
be awarded in the present case, but for another reason. Petitioner wants
her marriage to private respondent held valid and subsisting. She is suing
to maintain her status as legitimate wife. In the same breath, she asks for
damages from her husband for filing a baseless complaint for annulment of
their marriage which caused her mental anguish, anxiety, besmirched
reputation, social humiliation and alienation from her parents. Should we
grant her prayer, we would have a situation where the husband pays the
wife damages from conjugal or common funds. To do so, would make the
application of the law absurd.Logic, if not common sense, militates against
such incongruity. Moreover, our laws do not comprehend an action for
damages between husband and wife merely because of breach of a marital
obligation.[27] There are other remedies.[28]
WHEREFORE, the petition is GRANTED. The assailed Decision of the
Court of Appeals dated July 24, 1996 and its Resolution dated November

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-26270

October 30, 1969

BONIFACIA MATEO, ET AL., petitioners,

vs.
GERVASIO LAGUA, ET AL., respondents.
Pedro P. Tuason for petitioners.
Isaiah Asuncion for respondents.
REYES, J.B.L., J.:
This is a petition for review of the decision of the Court of Appeals (In CAG.R. Nos. 30064-R and 30065-R), raising as only issue the correctness
of the appellate court's reduction of a donation propter nuptias, for being
inofficious.

On 31 July 1941, Cipriano Lagua, executed a deed of sale of the same

two parcels of land in favor of his younger son, Gervasio. This sale
notwithstanding, Bonifacia Mateo was continuously given the owner's
share of the harvest until 1956, when it was altogether stopped. It was
only then that Bonifacia Mateo learned of the sale of the lots to her
brother-in-law, who had the sale in his favor registered only on 22
September 1955. As a consequence, TCT Nos. 19152 and 19153 of the
Register of Deeds of Pangasinan were issued to Gervasio.
Bonifacia Mateo and her daughter, Anatalia, assisted by her husband,
Luis Alcantara, went to the Court of First Instance of Pangasinan (Civil
Case No. T-339), seeking annulment of the deed of sale in favor of
Gervasio Lagua and for recovery of possession of the properties. On 3
January 1957, judgment was rendered in the case

The established facts of this case are as follows:

Cipriano Lagua was the original registered owner of 3 parcels of land
situated in Asingan, Pangasinan, referred to as Lot No. 998, with an area
of 11,080 sq.m., more or less and covered by O.C.T. No. 362; Lot No.
6541, with an area of 808 sq.m., more or less, covered by O.C.T. No.
6618; and Lot No. 5106, with an area of 3,303 sq.m., covered by O.C.T.
No. 8137. Sometime in 1917, Lagua and his wife Alejandra Dumlao, in a
public instrument, donated Lots 998 and 6541 to their son Alejandro
Lagua, in consideration of the latter's marriage to Bonifacia Mateo. The
marriage was celebrated on 15 May 1917, and thereafter, the couple took
possession of the properties, but the Certificates of Title remained in the
donor's name.
In 1923, the son, Alejandro, died. His widow, Bonifacia Mateo, and her
infant daughter lived with her father-in-law, Cipriano Lagua, who then
undertook the farming of the donated lots. It seems that at the start,
Cipriano Lagua was giving to Bonifacia the owner's share of the harvest
from the land. In 1926, however, Cipriano refused to deliver the said
share, thus prompting Bonifacia to resort to the Justice of the Peace
Court of Asingan, Pangasinan, from where she obtained a judgment
awarding to her possession of the two lots plus damages.

... declaring the sale executed by Cipriano Lagua in favor of the

other defendants, Gervasio Lagua and Sotera Casimero, as null
and void and non-existent; ordering the Register of Deeds for the
Province of Pangasinan, to cancel Transfer Certificates of Title
Nos. 19152 and 19153; condemning the defendants to pay jointly
and severally to the plaintiffs the sum of P200.00; ordering the
defendants Gervasio Lagua and Sotera Lagua to vacate and
deliver the possession over the two parcels of land to the
plaintiffs, and to pay the costs of this suit.
The decision became final, and Bonifacia Mateo, and her daughter,
Anatalia Lagua, were installed in possession of the land.
On 18 August 1957, the spouses Gervasio Lagua and Sotera Casimero
commenced in the Justice of the Peace Court of Asingan, Pangasinan,
an action against Bonifacia Mateo and her daughter for reimbursement of
the improvements allegedly made by them on Lots 998 and 6541, plus
damages. Dismissed by the Justice of the Peace Court for being barred
by the judgment in Civil Case No. T-339, therein plaintiffs appealed to the
Court of First Instance of Pangasinan where the case was docketed as
Civil Case No. T-433. At about the same time, another case was filed, this
time by Gervasio Lagua and Cipriano Lagua, for annulment of the
donation of the two lots, insofar as one-half portion thereof was

concerned (civil Case No. T-442). It was their claim that in donating the
two lots, which allegedly were all that plaintiff Cipriano Lagua owned, said
plaintiff not only neglected leaving something for his own support but also
prejudiced the legitime of his forced heir, plaintiff Gervasio Lagua.
Being intimately related, the two cases were heard jointly. On November
12, 1958, while the cases were pending final resolution, plaintiff Cipriano
Lagua died. On 23 December 1960, the court rendered a single decision
dismissing Civil Case No. T-433 for lack of cause of action, plaintiffs
spouses Gervasio Lagua and Sotera Casimero having been declared
possessors in bad faith in Civil Case No. T-339 and, therefore, not
entitled to any reimbursement of the expenses and improvements put up
by them on the land. The other suit, Civil Case No. T-442, was, likewise,
dismissed on the ground of prescription, the action to annul the donation
having been brought only in 1958, or after the lapse of 41 years.
Defendants' counterclaims were similarly dismissed although they were
awarded attorneys' fees in the sum of P150.00.
Plaintiffs appealed the decision to the Court of Appeals (CA-G.R. Nos.
30064 and 30065-R). Said tribunal, on 18 March 1966, affirmed the ruling
of the trial court in Civil Case No. T-433 denying plaintiffs' claim for
reimbursement of the improvements said to have been made on the land.
In regard to the annulment case (C.F.I. No. T-442), however, the Court of
Appeals held that the donation to Alejandro Lagua of the 2 lots with a
combined area of 11,888 square meters execeeded by 494.75 square
meters his (Alejandro's) legitime and the disposable portion that Cipriano
Lagua could have freely given by will, and, to the same extent prejudiced
the legitime of Cipriano's other heir, Gervasio Lagua. The donation was
thus declared inofficious, and defendants-appellees were ordered to
reconvey to plaintiff Gervasio Lagua a portion of 494.15 square meters to
be taken from any convenient part of the lots. The award of attorneys'
fees to the defendants was also eliminated for lack of proper basis.
Bonifacia Mateo, et al., then resorted to this Court, assailing the decision
of the Court of Appeals insofar as it ordered them to reconvey a portion of
the lots to herein respondent Gervasio Lagua. It is petitioners' contention
that (1) the validity of the donation proper nuptias having been finally
determined in Civil Case No. T-339, any question in derogation of said

validity is already barred; (2) that the action to annul the donation, filed in
1958, or 41 years after its execution, is abated by prescription; (3) that a
donation proper nuptias is revocable only for any of the grounds
enumerated in Article 132 of the new Civil Code, and inofficiousness is
not one of thorn; and (4) that in determining the legitime of the Lagua
brothers in the hereditary estate of Cipriano Lagua, the Court of Appeals
should have applied the provisions of the Civil Code of 1889, and not
Article 888 of the new Civil Code.
Petitioners' first two assigned errors, it may be stated, are noncontentious issues that have no bearing in the actual controversy in this
case. All of them refer to the validity of the donation a matter which
was definitively settled in Civil Case No. T-339 and which, precisely, was
declared by the Court of Appeals to be "beyond the realm of judicial
inquiry." In reality, the only question this case presents is whether or not
the Court of Appeals acted correctly in ordering the reduction of the
donation for being inofficious and in ordering herein petitioners to
reconvey to respondent Gervasio Lagua an unidentified 494.75 squaremeter portion of the donated lots.
We are in accord with the Court of Appeals that Civil Case No. 442 is not
one exclusively for annulment or revocation of the entire donation, but of
merely that portion thereof allegedly trenching on the legitime of
respondent Gervasio Lagua;1 that the cause of action to enforce
Gervasio's legitime, having accrued only upon the death of his father on
12 November 1958, the dispute has to be governed by the pertinent
provisions of the new Civil Code; and that a donation proper
nuptias property may be reduced for being inofficious. Contrary to the
views of appellants (petitioners), donations proper nuptias (by reason of
marriage) are without onerous consideration, the marriage being merely
the occasion or motive for the donation, not its causa. Being liberalities,
they remain subject to reduction for inofficiousness upon the donor's
death, if they should infringe the legitime of a forced heir.2
It is to be noted, however, that in rendering the judgment under review,
the Court of Appeals acted on several unsupported assumptions: that the
three (3) lots mentioned in the decision (Nos. 998, 5106 and 6541) were
the onlyproperties composing the net hereditary estate of the deceased

Cipriano Lagua; that Alejandro Lagua and Gervasio Lagua were his only
legal heirs; that the deceased left no unpaid debts, charges, taxes, etc.,
for which the estate would be answerable.3 In the computation of the
heirs' legitime, the Court of Appeals also considered only the area, not
the value, of the properties.
The infirmity in the above course of action lies in the fact that in its Article
908 the new Civil Code specifically provides as follows:
ART. 908. To determine the legitime, the value of the property left
at the death of the testator shall be considered, deducting all
debts, and charges, which shall not include those imposed in the
will.
To the net value of the hereditary estate, shall be added the value
of all donations by the testator that are subject to collation, at the
time he made them.
In other words, before any conclusion about the legal share due to a
compulsory heir may be reached, it is necessary that certain steps be
taken first. The net estate of the decedent must be ascertained, by
deducting an payable obligations and charges from the value of the
property owned by the deceased at the time of his death; then, all
donations subject to collation would be added to it. With the partible
estate thus determined, the legitimes of the compulsory heir or heirs can
be established; and only thereafter can it be ascertained whether or not a
donation had prejudiced the legitimes. Certainly, in order that a donation
may be reduced for being inofficious, there must be proof that the value
of the donated property exceeds that of the disposable free portion plus
the donee's share as legitime in the properties of the donor.4 In the
present case, it can hardly be said that, with the evidence then before the
court, it was in any position to rule on the inofficiousness of the donation
involved here, and to order its reduction and reconveyance of the
deducted portion to the respondents.
FOR THE FOREGOING CONSIDERATIONS, the decision of the Court of
Appeals, insofar as Civil Case No. 442 of the court a quo is concerned, is
hereby set aside and the trial court's order of dismissal sustained, without

prejudice to the parties' litigating the issue of inofficiousness in a proper

proceeding, giving due notice to all persons interested in the estate of the
late Cipriano Lagua. Without costs.
Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez,
Fernando, Teehankee and Barredo, JJ., concur.

Castro,

demanded, with interest and costs, and from that decision the defendant
appeals.
The court below stated the issues made by the pleadings in this case,
and its finding of fact, as follows:
It is alleged by plaintiffs and admitted by defendant that plaintiffs
are husband and wife and residents of the city of Manila; that the
defendant is a foreign corporation organized and existing under
and by virtue of the laws of Great Britain and duly registered in
the Philippine Islands, and Smith, Bell & Co. (limited), a
corporation organized and existing under the laws of the
Philippine Islands, with its principal domicile in the city of Manila,
is the agent in the Philippine Islands of said defendant.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-12707

August 10, 1918

MRS. HENRY E. HARDING, and her husband, plaintiffs-appellees,

vs.
COMMERCIAL UNION ASSURANCE COMPANY, defendant-appellant.
Lawrence & Ross for appellant.
Gibbs, McDonough & Johnson for appellees.

The plaintiffs alleged that on February 16, 1916, the plaintiff Mrs.
Henry E. Harding was the owner of a Studebaker automobile,
registered number 2063, in the city of Manila; that on said date; in
consideration of the payment to the defendant of the premium of
P150, by said plaintiff, Mrs. Henry E. Harding, with the consent of
her husband, the defendant by its duly authorized agent, Smith,
Bell & Company (limited), made its policy of insurance in writing
upon said automobile was set forth in said policy to be P3,000
that the value of said automobile was set forth in said policy
(Exhibit A) to be P3,000; that on March 24, 1916, said automobile
was totally destroyed by fire; that the loss thereby to plaintiffs was
the sum of P3,000; that thereafter, within the period mentioned in
the said policy of insurance, the plaintiff, Mrs. Henry E. Harding,
furnished the defendant the proofs of her said loss and interest,
and otherwise performed all the conditions of said policy on her
part, and that the defendant has not paid said loss nor any part
thereof, although due demand was made upon defendant
therefor.

FISHER, J.:
This was an action by plaintiffs to recover from defendant the sum of
P3,000 and interest, alleged to be due under the terms of a policy of
insurance. The trial court gave plaintiffs judgment for the amount

The defendant, by its answer, admitted the allegations of the

residence and status of the parties and denied all the other
allegation of the said complaint, and for a separate and
affirmative defense alleged (1) that on February 17, 1916, at the

city of Manila, P.I. the defendant upon request of plaintiff, Mrs.

Henry E. Harding, issued to the said plaintiff the policy of
insurance on an automobile alleged by the said plaintiff to be her
property; that the said request for the issuance of said policy of
insurance was made by means of a proposal in writing signed
and delivered by said plaintiff to the defendant, guaranteeing the
truth of the statements contained therein which said proposal is
referred to in the said policy of insurance made a part thereof; (2)
that certain of the statements and representations contained in
said proposal and warranted by said plaintiff to be true, to wit: (a)
the price paid by the proposer for the said automobile; (b) the
value of said automobile at the time of the execution and delivery
of the said proposal and (c) the ownership of said automobile,
were false and known to be false by the said plaintiff at the time
of signing and delivering the said proposal and were made for the
purpose of misleading and deceiving the defendant, and inducing
the defendant, relying upon the warranties, statements, and
representations contained in the said proposal and believing the
same to be true, issued the said policy of insurance.
The defendant prays that judgment be entered declaring the said
policy of insurance to be null and void, and that plaintiffs take
nothing by this action; and for such further relief as to the court
may seem just and equitable.
The evidence in this case shows that some time in the year 1913
Levy Hermanos, the Manila agents for the Studebaker
automobile, sold the automobile No. 2063 to John Canson for
P3,200 (testimony of Mr. Diehl); that under date of October 14,
1914, John Canson sold the said automobile to Henry Harding for
the sum of P1,500 (Exhibit 2); that under date of November 19,
1914, the said Henry Harding sold the said automobile No. 2063
to J. Brannigan, of Los Baos, Province of Laguna, P.I., for the
sum of P2,000 (Exhibit 3); that under date of December 20, 1915,
J. C. Graham of Los Baos, Province of Laguna, P.I., sold the
said automobile No. 2063 to Henry Harding of the city of Manila
for the sum of P2,800 (Exhibit 4 and testimony of J. C. Graham);
that on or about January 1, 1916, the said Henry Harding gave

the said automobile to his wife; Mrs. Henry E. Harding, one of the
plaintiffs, as a present; that said automobile was repaired and
repainted at the Luneta Garage at a cost of some P900
(testimony of Mr. Server); that while the said automobile was at
the Luneta Garage; the said Luneta Garage, acting as agent for
Smith, Bell & Company, (limited), solicited of the plaintiff Mrs.
Harding the insurance of said automobile by the defendant
Company (testimony of Mrs. Henry Harding and Mr. Server); that
a proposal was filled out by the said agent and signed by the
plaintiff Mrs. Henry E. Harding, and in said proposal under the
heading "Price paid by proposer," is the amount of "3,500" and
under another heading "Present value" is the amount of "3,000"
(Exhibit 1).
The evidence tends to show that after the said proposal was
made a representative of the Manila agent of defendant went to
the Luneta Garage and examined said automobile No. 2063 and
Mr. Server, the General Manager of the Luneta Garage, an
experienced automobile mechanic, testified that at the time this
automobile was insured it was worth about P3,000, and the
defendant, by and through its said agent Smith, Bell & Company
(limited), thereafter issued a policy of insurance upon proposal in
which policy the said automobile was described as of the "present
value" of P3,000 and the said defendant charged the said plaintiff
Mrs. Henry E. Harding as premium on said policy the sum of
P150, or 5 per cent of the then estimated value of P3,000.
(Exhibit A.)
The "Schedule" in said policy of insurance describes the
automobile here in question, and provides in part of follows:
"Now it is hereby agreed as follows:
"That during the period above set forth and during any
period for which the company may agree to renew this
policy the company will subject to the exception and
conditions contained herein or endorsed hereon
indemnify the insured against loss of or damage to any

motor car described in the schedule hereto (including

accessories) by whatever cause such loss or damage
may be occasioned and will further indemnify the insured
up to the value of the car or P3,000 whichever is the
greater against any claim at common law made by any
person (not being a person in the said motor car nor in
the insured's service) for loss of life or for accidental
bodily injury or damage to property caused by the said
motor car including law costs payable in connection with
such claim when incurred with the consent of the
company."
The evidence further shows that on March 24, 1916, the said
automobile was totally destroyed by fire, and that the iron and
steel portions of said automobile which did not burn were taken
into the possession of the defendant by and through its agent
Smith, Bell & Company (limited), and sold by it for a small sum,
which had never been tendered to the plaintiff prior to the trial of
this case, but in open court during the trial the sum of P10 as the
proceeds of such sale was tendered to plaintiff and refused.
Upon the facts so found, which we hold are supported by the evidence,
the trial judge decided that there was no proof of fraud on the part of
plaintiff in her statement of the value of the automobile, or with respect to
its ownership; that she had an insurable interest therein; and that
defendant, having agreed to the estimated value, P3,000, and having
insured the automobile for that amount, upon the basis of which the
premium was paid, is bound by it and must pay the loss in accordance
with the stipulated insured value. The assignments of error made on
behalf of appellant put in issue the correctness of those conclusions of
law, and some others of minor importance relating to the exclusion of
evidence. Disposing of the minor objections first, as we have reached the
conclusion that the trial court was right in holding that the defendant is
bound by the estimated value of the automobile upon which policy was
issued, and that the plaintiff was not guilty of fraud in regard thereto, the
exclusion of the testimony of the witness Diehl is without importance. It
merely tended to show the alleged actual value of the automobile, and in
the view we take of the case such evidence was irrelevant.

Appellant contends that Mrs. Harding was not the owner of the
automobile at the time of the issuance of the policy, and, therefore, had
no insurable interest in it. The court below found that the automobile was
given to plaintiff by her husband shortly after the issuance of the policy
here in question. Appellant does not dispute the correctness of this
finding, but contends that the gift was void, citing article 1334 of the Civil
Code which provides that "All gifts between spouses during the marriage
shall be void. Moderate gifts which the spouses bestow on each other on
festive days of the family are not included in this rule."
We are of the opinion that this contention is without merit. In the case of
Cook vs. McMicking 27 Phil. Rep., 10), this court said:
It is claimed by the appellants that the so-called transfer from
plaintiff's husband to her was completely void under article 1458
of the Civil Code and that, therefore, the property still remains the
property of Edward Cook and subject to levy under execution
against him.
In our opinion the position taken by appellants is untenable. They
are not in a position to challenge the validity of the transfer, if it
may be called such. They bore absolutely no relation to the
parties to the transfer at the time it occurred and had no rights or
interests inchoate, present, remote, or otherwise, in the property
in question at the time the transfer occurred. Although certain
transfers from husband to wife or from wife to husband are
prohibited in the article referred to, such prohibition can be taken
advantage of only by persons who bear such a relation to the
parties making the transfer or to the property itself that such
transfer interferes with their rights or interests. Unless such a
relationship appears the transfer cannot be attacked.
Even assuming that defendant might have invoked article 1334 as a
defense, the burden would be upon it to show that the gift in question
does not fall within the exception therein established. We cannot say, as
a matter of law, that the gift of an automobile by a husband to his wife is
not a moderate one. Whether it is or is not would depend upon the

circumstances of the parties, as to which nothing is disclosed by the

record.
Defendant contends that the statement regarding the cost of the
automobile was a warranty, that the statement was false, and that,
therefore, the policy never attached to the risk. We are of the opinion that
it has not been shown by the evidence that the statement was false on
the contrary we believe that it shows that the automobile had in fact cost
more than the amount mentioned. The court below found, and the
evidence shows, that the automobile was bought by plaintiff's husband a
few weeks before the issuance of the policy in question for the sum of
P2,800, and that between that time and the issuance of the policy some
P900 was spent upon it in repairs and repainting. The witness Server, an
expert automobile mechanic, testified that the automobile was practically
as good as new at the time the insurance was effected. The form of
proposal upon which the policy was issued does not call for a statement
regarding the value of the automobile at the time of its acquisition by the
applicant for the insurance, but merely a statement of its cost. The
amount stated was less than the actual outlay which the automobile
represented to Mr. Harding, including repairs, when the insurance policy
was issued. It is true that the printed form calls for a statement of the
"price paid by the proposer," but we are of the opinion that it would be
unfair to hold the policy void simply because the outlay represented by
the automobile was made by the plaintiff's husband and not by his wife,
to whom he had given the automobile. It cannot be assumed that
defendant should not have issued the policy unless it were strictly true
that the price representing the cost of the machine had been paid by the
insured and by no other person that it would no event insure an
automobile acquired by gift, inheritance, exchange, or any other title not
requiring the owner to make a specific cash outlay for its acquisition.
Furthermore, the court below found and the evidence shows, without
dispute, that the proposal upon which the policy in question was issued
was made out by defendant's agent by whom the insurance was solicited,
and that appellee simply signed the same. It also appears that an
examiner employed by the defendant made an inspection of the
automobile before the acceptance of the risk, and that the sum after this
examination. The trial court found that Mrs. Harding, in fixing the value of

the automobile at P3,000, acted upon information given her by her

husband and by Mr. Server, the manager of the Luneta Garage. The
Luneta Garage, it will be remembered, was the agent of the defendant
corporation in the solicitation of the insurance. Mrs. Harding did not state
of her own knowledge that the automobile originally cost P3,000, or that
its value at the time of the insurance was P3,000. She merely repeated
the information which had been given her by her husband, and at the
same time disclosed to defendant's agent the source of her information.
There is no evidence to sustain the contention that this communication
was made in bad faith. It appears that the statements in the proposal as
to the price paid for the automobile and as to its value were written by Mr.
Quimby who solicited the insurance on behalf of defendant, in his
capacity as an employee of the Luneta Garage, and wrote out the
proposal for Mrs. Harding to sign. Under these circumstances, we do not
think that the facts stated in the proposal can be held as a warranty of the
insured, even if it should have been shown that they were incorrect in the
absence of proof of willful misstatement. Under such circumstance, the
proposal is to be regarded as the act of the insurer and not of the
insured. This question was considered in the case of the Union Insurance
Company vs. Wilkinson (13 Wall., 222; 20 L. ed., 617), in which the
Supreme Court of the United States said:
This question has been decided differently by courts of the
highest respectability in cases precisely analogous to the present.
It is not to be denied that the application logically considered, is
the work of the assured, and if left to himself or to such
assistance as he might select, the person so selected would be
his agent, and he alone would be responsible. On the other hand,
it is well-known, so well that no court would be justified in shutting
its eyes to it, that insurance companies organized under the laws
of one State, and having in that State their principal business
office, send these agents all over the land, with directions to
solicit and procure applications for policies furnishing them with
printed arguments in favor of the value and necessity of life
insurance, and of the special advantages of the corporation which
the agent represents. They pay these agents large commissions
on the premiums thus obtained, and the policies are delivered at
their hands to the assured. The agents are stimulated by letters

and instructions to activity in procuring contracts, and the party

who is in this manner induced to take out a policy, rarely sees or
knows anything about the company or its officers by whom it is
issued, but looks to and relies upon the agent who has persuaded
him to effect insurance as the full and complete representative of
the company, in all that is said or done in making the contract.
Has he not a right to so regard him? It is quite true that the
reports of judicial decisions are filled with the efforts of these
companies, by their counsel, to establish the doctrine for the acts
of these agents to the simple receipt of the premium and delivery
of the policy, the argument being that, as to all other acts of the
agent, he is the agent of the assured. This proposition is not
without support in some of the earlier decision on the subject;
and, at a time when insurance companies waited for parties to
come to them to seek assurance, or to forward applications on
their own motion, the doctrine had a reasonable foundation to rest
upon. But to apply such a doctrine, in its full force, to the system
of selling policies through agents, which we have described,
would be a snare and a delusion, leading, as it has done in
numerous instances, to the grossest frauds, of which the
insurance corporations receive the benefits, and the parties
supposing themselves insured are the victims. The tendency of
the modern decisions in this country is steadily in the opposite
direction. The powers of the agent are, prima facie, co-extensive
with the business intrusted to his care, and will not be narrowed
by limitations not communicated to the person with whom he
deals. (Bebee vs. Ins. Co., 25 Conn., 51; Lycoming Ins.
Co. vs. Schoolenberger, 44 Pa., 259; Beal vs. Ins. Co., 16 Wis.,
241; Davenportvs. Ins. Co., 17 Iowa, 276.) An insurance
company, establishing a local agency, must be held responsible
to the parties with whom they transact business, for the acts and
declarations of the agent, within the scope of his employment, as
if they proceeded from the principal. (Sav. Bk. vs. Ins. Co., 31
Conn., 517; Hortwitz vs.Ins. Co., 40 Mo., 557; Ayres vs. Ins. Co.,
17 Iowa, 176; Howard Ins. Co. vs. Bruner, 23 Pa., 50.)
In the fifth edition of American Leading Cases, 917, after a full
consideration of the authorities, it is said:

"By the interested or officious zeal of the agents

employed by the insurance companies in the wish to
outbid each other and procure customers, they not
unfrequently mislead the insured, by a false or erroneous
statement of what the application should contain; or,
taking the preparation of it into their own hands, procure
his signature by an assurance that it is properly drawn,
and will meet the requirements of the policy. The better
opinion seems to be that, when this course is pursued,
the description of the risk should, though nominally
proceeding from the insured, be regarded as the act of
the insurers." (Rowley vs. Empire Ins. Co., 36 N.Y., 550.)
The modern decisions fully sustain this proposition, and they
seem to us founded on reason and justice, and meet our entire
approval. This principle does not admit oral testimony to vary or
contradict that which is in writing, but it goes upon the idea that
the writing offered in evidence was not the instrument of the party
whose name is signed to it; that it was procured under such
circumstances by the other side as estops that side from using it
or relying on its contents; not that it may be contradicted by oral
testimony, but that it may be shown by such testimony that it
cannot be lawfully used against the party whose name is signed
to it. (See also Am. Life Ins. Co. vs. Mahone, 21 Wallace, 152.)
The defendant, upon the information given by plaintiff, and after an
inspection of the automobile by its examiner, having agreed that it was
worth P3,000, is bound by this valuation in the absence of fraud on the
part of the insured. All statements of value are, of necessity, to a large
extent matters of opinion, and it would be outrageous to hold that the
validity of all valued policies must depend upon the absolute correctness
of such estimated value. As was said by the Supreme Court of the United
States in the case of the First National Bank vs. Hartford Fire Insurance
Co. (5 Otto, 673; 24 L. ed., 563), at. p. 565 of the Lawyers Edition:
The ordinary test of the value of property is the price it will
commend in the market if offered for sale. But that test cannot, in
the very nature of the case, be applied at the time application is

made for insurance. Men may honestly differ about the value of
property, or as to what it will bring in the market; and such
differences are often very marked among those whose special
business it is to buy and sell property of all kinds. The assured
could do no more than estimate such value; and that, it seems,
was all that he was required to do in this case. His duty was to
deal fairly with the Company in making such estimate. The
special finding shows that he discharged that duty and observed
good faith. We shall not presume that the Company, after
requiring the assured in his application to give the "estimated
value," and then to covenant that he had stated all material facts
in regard to such value, so far as known to him, and after carrying
that covenant, by express words, into the written contract,
intended to abandon the theory upon which it sought the contract,
and make the absolute correctness of such estimated value a
condition precedent to any insurance whatever. The application,
with its covenant and stipulations, having been made a part of the
policy, that presumption cannot be indulged without imputing to
the Company a purpose, by studied intricacy or an ingenious
framing of the policy, to entrap the assured into incurring
obligations which, perhaps, he had no thought of assuming.
Section 163 of the Insurance Law (Act No. 2427) provides that "the effect
of a valuation in a policy of fire insurance is the same as in a policy of
marine insurance."
By the terms of section 149 of the Act cited, the valuation in a policy of
marine insurance is conclusive if the insured had an insurable interest
and was not guilty of fraud.
We are, therefore, of the opinion and hold that plaintiff was the owner of
the automobile in question and had an insurable interest therein; that
there was no fraud on her part in procuring the insurance; that the
valuation of the automobile, for the purposes of the insurance, is binding
upon the defendant corporation, and that the judgment of the court below
is, therefore, correct and must be affirmed, with interest, the costs of this
appeal to be paid by the appellant. So ordered.

It is clear from Article 50 of the Family Code that Section 19(1) of the Rule applies
only to marriages which are declared void ab initio or annulled by final
judgment under Articles 40 and 45 of the Family Code. In short, Article 50 of the
Family Code does not apply to marriages which are declared void ab initio under
Article 36 of the Family Code, which should be declared void without waiting for the
liquidation of the properties of the parties.
Article 40 of the Family Code contemplates a situation where a second or bigamous
marriage was contracted. Under Article 40, [t]he absolute nullity of a previous

marriage may be invoked for purposes of remarriage on the basis solely of a final
judgment declaring such previous marriage void. Thus we ruled:
x x x where the absolute nullity of a previous marriage is sought to be
invoked for purposes of contracting a second marriage, the sole basis
acceptable In law, for said projected marriage to be free from legal
infirmity, is a final judgment declaring a previous marriage void.11
Article 45 of the Family Code, on the other hand, refers to voidable marriages,
meaning, marriages which are valid until they are set aside by final judgment of a
competent court in an action for annulment. 12 In both instances under Articles 40 and
45, the marriages are governed either by absolute community of property 13 or
conjugal partnership of gains14 unless the parties agree to a complete separation of
property in a marriage settlement entered into before the marriage. Since the property
relations of the parties is governed by absolute community of property or conjugal
partnership of gains, there is a need to liquidate, partition and distribute the

properties before a decree of annulment could be issued. That is not the case for
annulment of marriage under Article 36 of the Family Code because the marriage is
governed by the ordinary rules on co-ownership.
In this case, petitioners marriage to respondent was declared void under Article
3615 of the Family Code and not under Article 40 or 45. Thus, what governs the
liquidation of properties owned in common by petitioner and respondent are the rules
on co-ownership. In Valdes, the Court ruled that the property relations of parties in a
void marriage during the period of cohabitation is governed either by Article 147 or
Article 148 of the Family Code.16 The rules on co-ownership apply and the properties
of the spouses should be liquidated in accordance with the Civil Code provisions on
co-ownership. Under Article 496 of the Civil Code, [p]artition may be made by
agreement between the parties or by judicial proceedings. x x x. It is not necessary to
liquidate the properties of the spouses in the same proceeding for declaration of
nullity of marriage.