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G.R. No. 119190 January 16, 1997 given to her.

given to her. For her husband, he was asked by the doctor to return but he never
did.
CHI MING TSOI, petitioner,
vs. The plaintiff claims, that the defendant is impotent, a closet homosexual as he
COURT OF APPEALS and GINA LAO-TSOI, respondents. did not show his penis. She said, that she had observed the defendant using an
eyebrow pencil and sometimes the cleansing cream of his mother. And that,
TORRES, JR., J.: according to her, the defendant married her, a Filipino citizen, to acquire or
maintain his residency status here in the country and to publicly maintain the
Man has not invented a reliable compass by which to steer a marriage in its appearance of a normal man.
journey over troubled waters. Laws are seemingly inadequate. Over time, much
reliance has been placed in the works of the unseen hand of Him who created all The plaintiff is not willing to reconcile with her husband.
things.
On the other hand, it is the claim of the defendant that if their marriage shall be
Who is to blame when a marriage fails? annulled by reason of psychological incapacity, the fault lies with his wife.

This case was originally commenced by a distraught wife against her uncaring But, he said that he does not want his marriage with his wife annulled for several
husband in the Regional Trial Court of Quezon City (Branch 89) which decreed the reasons, viz: (1) that he loves her very much; (2) that he has no defect on his part
annulment of the marriage on the ground of psychological incapacity. Petitioner and he is physically and psychologically capable; and, (3) since the relationship is
appealed the decision of the trial court to respondent Court of Appeals (CA-G.R. still very young and if there is any differences between the two of them, it can
CV No. 42758) which affirmed the Trial Court's decision November 29, 1994 and still be reconciled and that, according to him, if either one of them has some
correspondingly denied the motion for reconsideration in a resolution dated incapabilities, there is no certainty that this will not be cured. He further claims,
February 14, 1995. that if there is any defect, it can be cured by the intervention of medical
technology or science.
The statement of the case and of the facts made by the trial court and
reproduced by the Court of Appeals1 its decision are as follows: The defendant admitted that since their marriage on May 22, 1988, until their
separation on March 15, 1989, there was no sexual contact between them. But,
From the evidence adduced, the following acts were preponderantly established: the reason for this, according to the defendant, was that everytime he wants to
have sexual intercourse with his wife, she always avoided him and whenever he
Sometime on May 22, 1988, the plaintiff married the defendant at the Manila caresses her private parts, she always removed his hands. The defendant claims,
Cathedral, . . . Intramuros Manila, as evidenced by their Marriage Contract. (Exh. that he forced his wife to have sex with him only once but he did not continue
"A") because she was shaking and she did not like it. So he stopped.

After the celebration of their marriage and wedding reception at the South Villa, There are two (2) reasons, according to the defendant , why the plaintiff filed this
Makati, they went and proceeded to the house of defendant's mother. case against him, and these are: (1) that she is afraid that she will be forced to
return the pieces of jewelry of his mother, and, (2) that her husband, the
There, they slept together on the same bed in the same room for the first night defendant, will consummate their marriage.
of their married life.
The defendant insisted that their marriage will remain valid because they are still
It is the version of the plaintiff, that contrary to her expectations, that as very young and there is still a chance to overcome their differences.
newlyweds they were supposed to enjoy making love, or having sexual
intercourse, with each other, the defendant just went to bed, slept on one side The defendant submitted himself to a physical examination. His penis was
thereof, then turned his back and went to sleep . There was no sexual intercourse examined by Dr. Sergio Alteza, Jr., for the purpose of finding out whether he is
between them during the first night. The same thing happened on the second, impotent . As a result thereof, Dr. Alteza submitted his Doctor's Medical Report.
third and fourth nights. (Exh. "2"). It is stated there, that there is no evidence of impotency (Exh. "2-B"),
and he is capable of erection. (Exh. "2-C")
In an effort to have their honeymoon in a private place where they can enjoy
together during their first week as husband and wife, they went to Baguio City. The doctor said, that he asked the defendant to masturbate to find out whether
But, they did so together with her mother, an uncle, his mother and his nephew. or not he has an erection and he found out that from the original size of two (2)
They were all invited by the defendant to join them. [T]hey stayed in Baguio City inches, or five (5) centimeters, the penis of the defendant lengthened by one (1)
for four (4) days. But, during this period, there was no sexual intercourse inch and one centimeter. Dr. Alteza said, that the defendant had only a soft
between them, since the defendant avoided her by taking a long walk during erection which is why his penis is not in its full length. But, still is capable of
siesta time or by just sleeping on a rocking chair located at the living room. They further erection, in that with his soft erection, the defendant is capable of having
slept together in the same room and on the same bed since May 22, 1988 until sexual intercourse with a woman.
March 15, 1989. But during this period, there was no attempt of sexual
intercourse between them. [S]he claims, that she did not: even see her husband's In open Court, the Trial Prosecutor manifested that there is no collusion between
private parts nor did he see hers. the parties and that the evidence is not fabricated."2

Because of this, they submitted themselves for medical examinations to Dr. After trial, the court rendered judgment, the dispositive portion of which reads:
Eufemio Macalalag, a urologist at the Chinese General Hospital, on January 20,
1989. ACCORDINGLY, judgment is hereby rendered declaring as VOID the marriage
entered into by the plaintiff with the defendant on May 22, 1988 at the Manila
The results of their physical examinations were that she is healthy, normal and Cathedral, Basilica of the Immaculate Conception, Intramuros, Manila, before the
still a virgin, while that of her husband's examination was kept confidential up to Rt. Rev. Msgr. Melencio de Vera. Without costs. Let a copy of this decision be
this time. While no medicine was prescribed for her, the doctor prescribed furnished the Local Civil Registrar of Quezon City. Let another copy be furnished
medications for her husband which was also kept confidential. No treatment was the Local Civil Registrar of Manila.
SO ORDERED. and 101[par. 2]) and the Rules of Court prohibit such annulment without trial
(Sec. 1, Rule 19).
On appeal, the Court of Appeals affirmed the trial court's decision.
The case has reached this Court because petitioner does not want their marriage
Hence, the instant petition. to be annulled. This only shows that there is no collusion between the parties.
When petitioner admitted that he and his wife (private respondent) have never
Petitioner alleges that the respondent Court of Appeals erred: had sexual contact with each other, he must have been only telling the truth. We
are reproducing the relevant portion of the challenged resolution denying
I petitioner's Motion for Reconsideration, penned with magisterial lucidity by
Associate Justice Minerva Gonzaga-Reyes, viz:
in affirming the conclusions of the lower court that there was no sexual
intercourse between the parties without making any findings of fact. The judgment of the trial court which was affirmed by this Court is not based on
a stipulation of facts. The issue of whether or not the appellant is psychologically
II incapacitated to discharge a basic marital obligation was resolved upon a review
of both the documentary and testimonial evidence on record. Appellant admitted
in holding that the refusal of private respondent to have sexual communion with that he did not have sexual relations with his wife after almost ten months of
petitioner is a psychological incapacity inasmuch as proof thereof is totally cohabitation, and it appears that he is not suffering from any physical disability.
absent. Such abnormal reluctance or unwillingness to consummate his marriage is
strongly indicative of a serious personality disorder which to the mind of this
III Court clearly demonstrates an 'utter insensitivity or inability to give meaning and
significance to the marriage' within the meaning of Article 36 of the Family Code
in holding that the alleged refusal of both the petitioner and the private (See Santos vs. Court of Appeals, G.R. No. 112019, January 4, 1995).4
respondent to have sex with each other constitutes psychological incapacity of
both. Petitioner further contends that respondent court erred in holding that the
alleged refusal of both the petitioner and the private respondent to have sex
IV with each other constitutes psychological incapacity of both. He points out as
error the failure of the trial court to make "a categorical finding about the alleged
in affirming the annulment of the marriage between the parties decreed by the psychological incapacity and an in-depth analysis of the reasons for such refusal
lower court without fully satisfying itself that there was no collusion between which may not be necessarily due to physchological disorders" because there
them. might have been other reasons, — i.e., physical disorders, such as aches, pains or
other discomforts, — why private respondent would not want to have sexual
We find the petition to be bereft of merit. intercourse from May 22, 1988 to March 15, 1989, in a short span of 10 months.

Petitioner contends that being the plaintiff in Civil Case No. Q-89-3141, private First, it must be stated that neither the trial court nor the respondent court made
respondent has the burden of proving the allegations in her complaint; that since a finding on who between petitioner and private respondent refuses to have
there was no independent evidence to prove the alleged non-coitus between the sexual contact with the other. The fact remains, however, that there has never
parties, there remains no other basis for the court's conclusion except the been coitus between them. At any rate, since the action to declare the marriage
admission of petitioner; that public policy should aid acts intended to validate void may be filed by either party, i.e., even the psychologically incapacitated, the
marriage and should retard acts intended to invalidate them; that the conclusion question of who refuses to have sex with the other becomes immaterial.
drawn by the trial court on the admissions and confessions of the parties in their
pleadings and in the course of the trial is misplaced since it could have been a Petitioner claims that there is no independent evidence on record to show that
product of collusion; and that in actions for annulment of marriage, the material any of the parties is suffering from phychological incapacity. Petitioner also
facts alleged in the complaint shall always be proved.3 claims that he wanted to have sex with private respondent; that the reason for
private respondent's refusal may not be psychological but physical disorder as
Section 1, Rule 19 of the Rules of Court reads: stated above.

Section 1. Judgment on the pleadings. — Where an answer fails to tender an We do not agree. Assuming it to be so, petitioner could have discussed with
issue, or otherwise admits the material allegations of the adverse party's private respondent or asked her what is ailing her, and why she balks and avoids
pleading, the court may, on motion of that party, direct judgment on such him everytime he wanted to have sexual intercourse with her. He never did. At
pleading. But in actions for annulment of marriage or for legal separation the least, there is nothing in the record to show that he had tried to find out or
material facts alleged in the complaint shall always be proved. discover what the problem with his wife could be. What he presented in
evidence is his doctor's Medical Report that there is no evidence of his impotency
The foregoing provision pertains to a judgment on the pleadings. What said and he is capable of erection.5 Since it is petitioner's claim that the reason is not
provision seeks to prevent is annulment of marriage without trial. The assailed psychological but perhaps physical disorder on the part of private respondent, it
decision was not based on such a judgment on the pleadings. When private became incumbent upon him to prove such a claim.
respondent testified under oath before the trial court and was cross-examined by
oath before the trial court and was cross-examined by the adverse party, she If a spouse, although physically capable but simply refuses to perform his or her
thereby presented evidence in form of a testimony. After such evidence was essential marriage obligations, and the refusal is senseless and constant, Catholic
presented, it be came incumbent upon petitioner to present his side. He marriage tribunals attribute the causes to psychological incapacity than to
admitted that since their marriage on May 22, 1988, until their separation on stubborn refusal. Senseless and protracted refusal is equivalent to psychological
March 15, 1989, there was no sexual intercourse between them. incapacity. Thus, the prolonged refusal of a spouse to have sexual intercourse
with his or her spouse is considered a sign of psychological incapacity.6
To prevent collusion between the parties is the reason why, as stated by the
petitioner, the Civil Code provides that no judgment annulling a marriage shall be Evidently, one of the essential marital obligations under the Family Code is "To
promulgated upon a stipulation of facts or by confession of judgment (Arts. 88 procreate children based on the universal principle that procreation of children
through sexual cooperation is the basic end of marriage." Constant non-
fulfillment of this obligation will finally destroy the integrity or wholeness of the G.R. No. 208790 January 21, 2015
marriage. In the case at bar, the senseless and protracted refusal of one of the
parties to fulfill the above marital obligation is equivalent to psychological GLENN VIÑAS, Petitioner,
incapacity. vs.
MARY GRACE PAREL-VIÑAS, Respondent.
As aptly stated by the respondent court,
RESOLUTION
An examination of the evidence convinces Us that the husband's plea that the
wife did not want carnal intercourse with him does not inspire belief. Since he REYES, J.:
was not physically impotent, but he refrained from sexual intercourse during the
entire time (from May 22, 1988 to March 15, 1989) that he occupied the same For review is the Decision1 rendered on January 29, 2013 and Resolution2 issued
bed with his wife, purely out of symphaty for her feelings, he deserves to be on August 7, 2013 by the Court of Appeals (CA) in CA-G.R. CV No. 96448. The CA
doubted for not having asserted his right seven though she balked (Tompkins vs. set aside the Decision3 dated January 29, 2010 of the Regional Trial Court (RTC) of
Tompkins, 111 Atl. 599, cited in I Paras, Civil Code, at p. 330). Besides, if it were San Pablo City, Branch 30, in Civil Case No. SP-6564(09), which declared the
true that it is the wife was suffering from incapacity, the fact that defendant did marriage between Glenn Vifias (Glenn) and Mary Grace Parel-Vifias (Mary Grace)
not go to court and seek the declaration of nullity weakens his claim. This case as null and void.
was instituted by the wife whose normal expectations of her marriage were
frustrated by her husband's inadequacy. Considering the innate modesty of the Antecedents
Filipino woman, it is hard to believe that she would expose her private life to
public scrutiny and fabricate testimony against her husband if it were not On April 26, 1999, Glenn and Mary Grace, then 25 and 23 years old, respectively,
necessary to put her life in order and put to rest her marital status. got married in civil rites held in Lipa City, Batangas.4 Mary Grace was already
pregnant then. The infant, however, died at birth due to weakness and
We are not impressed by defendant's claim that what the evidence proved is the malnourishment. Glenn alleged that the infant’s death was caused by Mary
unwillingness or lack of intention to perform the sexual act, which is not Grace’s heavy drinking and smoking during her pregnancy.
phychological incapacity, and which can be achieved "through proper
motivation." After almost ten months of cohabitation, the admission that the The couple lived together under one roof. Glenn worked as a bartender, while
husband is reluctant or unwilling to perform the sexual act with his wife whom Mary Grace was a production engineer.
he professes to love very dearly, and who has not posed any insurmountable
resistance to his alleged approaches, is indicative of a hopeless situation, and of a Sometime in March of 2006, Mary Grace left the home which she shared with
serious personality disorder that constitutes psychological incapacity to discharge Glenn. Glenn subsequently found out that Mary Grace went to work in Dubai. At
the basic marital covenants within the contemplation of the Family Code.7 the time the instant petition was filed, Mary Grace had not returned yet.

While the law provides that the husband and the wife are obliged to live On February 18, 2009, Glenn filed a Petition5 for the declaration of nullity of his
together, observe mutual love, respect and fidelity (Art. 68, Family Code), the marriage with Mary Grace.He alleged that Mary Grace was insecure, extremely
sanction therefor is actually the "spontaneous, mutual affection between jealous, outgoing and prone to regularly resorting to any pretext to be able to
husband and wife and not any legal mandate or court order" (Cuaderno vs. leave the house. She thoroughly enjoyed the night life, and drank and smoked
Cuaderno 120 Phil. 1298). Love is useless unless it is shared with another. Indeed, heavily even whenshe was pregnant. Further, Mary Grace refused to perform
no man is an island, the cruelest act of a partner in marriage is to say "I could not even the most essential household chores of cleaning and cooking. According to
have cared less." This is so because an ungiven self is an unfulfilled self. The Glenn, Mary Grace had not exhibited the foregoing traits and behavior during
egoist has nothing but himself. In the natural order, it is sexual intimacy which their whirlwind courtship.6
brings spouses wholeness and oneness. Sexual intimacy is a gift and a
participation in the mystery of creation. It is a function which enlivens the hope Glenn likewise alleged that Mary Grace was not remorseful about the death of
of procreation and ensures the continuation of family relations. the infant whom she delivered. She lived as if she were single and was unmindful
of her husband’s needs. She was self-centered, selfish and immature. When
It appears that there is absence of empathy between petitioner and private Glenn confronted her about her behavior, she showed indifference. She
respondent. That is — a shared feeling which between husband and wife must be eventually left their home without informing Glenn. Glenn later found out that
experienced not only by having spontaneous sexual intimacy but a deep sense of she left for an overseas employment in Dubai.7
spiritual communion. Marital union is a two-way process. An expressive interest
in each other's feelings at a time it is needed by the other can go a long way in Before Glenn decided to file a petition for the declaration of nullity of his
deepening the marital relationship. Marriage is definitely not for children but for marriage with Mary Grace, he consulted the latter’s friends. They informed him
two consenting adults who view the relationship with love amor gignit amorem, that Mary Grace came from a broken family and was left to be cared for by her
respect, sacrifice and a continuing commitment to compromise, conscious of its aunts and nannies. The foregoing circumstance must have contributed to her
value as a sublime social institution. sense of insecurity and difficulty in adjusting to married life.8

This Court, finding the gravity of the failed relationship in which the parties found To ease their marital problems, Glenn sought professional guidance and
themselves trapped in its mire of unfulfilled vows and unconsummated marital submitted himself to a psychological evaluation by Clinical Psychologist Nedy
obligations, can do no less but sustain the studied judgment of respondent Tayag (Dr. Tayag). Dr. Tayag found him as "amply aware of his marital roles" and
appellate court. "capable of maintaining a mature and healthy heterosexual relationship."9

IN VIEW OF THE FOREGOING PREMISES , the assailed decision of the Court of On the other hand, Dr. Tayag assessed Mary Grace’s personality through the data
Appeals dated November 29, 1994 is hereby AFFIRMED in all respects and the she had gathered from Glenn and his cousin, Rodelito Mayo (Rodelito), who
petition is hereby DENIED for lack of merit. knew Mary Graceway back in college.

SO ORDERED. Mary Grace is the eldest among four siblings. She is a college graduate. She
belongs to a middle class family. Her father is an overseas contract worker, while
her mother is a housewife. At the time Dr. Tayag prepared her report, Mary irresponsible. She is the exact opposite of Glenn, who is conservative and
Grace was employed in Dubai and romantically involved with another man.10 preoccupied with his work.15 On her part, Dr. Tayag reiterated her findings in the
psychological report dated December 29, 2008.
According to Rodelito, Mary Grace verbally abused and physically harmed Glenn
during the couple’s fights. Mary Grace is also ill-tempered and carefree, while Ruling of the RTC
Glenn is jolly, kind and family-oriented.11
On January 29, 2010, the RTC rendered its Decision16 declaring the marriage
Dr. Tayag diagnosed Mary Grace to be suffering from a Narcissistic Personality between Glenn and Mary Grace as null and void on account of the latter’s
Disorder with anti-social traits. Dr. Tayag concluded that Mary Grace and Glenn’s psychological incapacity. The RTC cited the following as grounds:
relationship is not founded on mutual love, trust, respect, commitment and
fidelity to each other. Hence, Dr. Tayag recommended the propriety of declaring The totality of the evidence presented by [Glenn] warrants [the] grant of the
the nullity of the couple’s marriage.12 petition. Reconciliation between the parties under the circumstances is nil. For
the best interest of the parties, it is best that the legal bond between them be
In drawing her conclusions, Dr. Tayag explained that: severed.

The said disorder [of Mary Grace] is considered to be severe, serious, grave, The testimonies of [Glenn] and his witness [Rodelito] portray the miserable life
permanent and chronic in proportion and is incurable by any form of clinical [Glenn] had with [Mary Grace] who is a Narcissistic Personality Disordered
intervention. It has already been deeply embedded within her system as it was person with anti[-]social traits and who does not treat him as her husband.
found to have started as early as her childhood years. Because of such, it has [Glenn] and [Mary Grace] are separated in fact since the year 2006. [Mary Grace]
caused her to be inflexible, maladaptive and functionally[-]impaired especially abandoned [Glenn] without telling the latter where to go. x x x Had it not for the
with regards to heterosexual dealings. insistence of[Glenn] that he would not know the whereabouts of his wife. The
law provides that [a] husband and [a] wife are obliged to live together, [and]
Such disorder of [Mary Grace]is mainly characterized by grandiosity, need for observe mutual love, respect and fidelity. x x x For all intents and purposes,
admiration and lack of empathy[,] along with her pattern of disregard for and however, [Mary Grace] was in a quandary on what it really means. x x x.
violation of the rights of others[,] which utterly distorted her perceptions and
views especially in terms of a fitting marital relationship. Such disorder From the testimony of [Glenn], it was established that [Mary Grace] failed to
manifested in [Mary Grace] through her unrelenting apathy, sense of entitlement comply with the basic marital obligations of mutual love, respect, mutual help
and arrogance. Throughout her union with [Glenn], she has exhibited a and support. [Glenn] tried his best to have their marriage saved but [Mary Grace]
heightened sense of self as seen in her marked inability to show proper respect did not cooperate with him. [Mary Grace] is x x x, unmindful of her marital
for her husband. x x x She is too headstrong that most of the time[,] she would obligations.
do things her own way and would not pay close attention to what her husband
needed. She had been a wife who constantly struggled for power and dominance The Court has no reason to doubt the testimony of [Dr. Tayag], a clinical
in their relationship and [Glenn], being too considerate to her, was often psychologist with sufficient authority to speak on the subject of psychological
subjected to her control.x x x She is into many vices and loved hanging out with incapacity. She examined [Glenn], and was able to gather sufficient data and
her friends at night[,] and she even got involved in an illicit relationship[,] which information about [Mary Grace]. x x x This [Narcissistic] personality disorder
was still going on up to the present time. x x x. of[Mary Grace] is ingrained in her personality make-up, so grave and so
permanent, incurable and difficult to treat. It is conclusive that this personal
The root cause of [Mary Grace’s]personality aberration can be said to have incapacity leading to psychological incapacity is already pre-existing before the
emanated from the various forms of unfavorable factors in her milieu way back marriage and was only manifested after. It has become grave, permanent and
as early as her childhood years[,] which is the crucial stage in the life of a person incurable.17 (Underlining ours and italics in the original)
as thisis the time when the individual’s character and behavior are shaped. [Mary
Grace] came from a dysfunctional family with lenient and tolerating parents[,] The Office of the Solicitor General (OSG) moved for reconsideration but it was
who never impose any restrictions [upon] their children. Considering such fact, denied by the RTC in its Order18dated December 1, 2010.
she apparently failed to feel the love and affection of the nurturing figures that
she had[,] who were supposed to bethe first to show concern [for] her. x x x She The Appeal of the OSG and the Ruling of the CA
has acquired a domineering character as she was not taught to have boundaries
in her actions because of the laxity she had from her caregivers and also because On appeal before the CA, the OSG claimed that no competent evidence exist
she grew up to be the eldest in the brood. She sees to it that she is the one proving that Mary Grace indeed suffers from a Narcissistic Personality Disorder,
always followed with regards to making decisions and always mandates people to which prevents her from fulfilling her marital obligations. Specifically, the RTC
submit to her wishes. She has not acquired the very essence of morality [and] has decision failed to cite the root cause of Mary Grace’s disorder. Further, the RTC
certainly learned set of unconstructive traits that further made her too futile to did not state its own findings and merely relied on Dr. Tayag’s statements anent
assume mature roles. Morals and values were not instilled in her young mind the gravity and incurability of Mary Grace’s condition. The RTC resorted to mere
that as she went on with her life, she never learned to restrain herself from doing generalizations and conclusions sansdetails. Besides, what psychological
ill-advised things even if she isamply aware of the depravity of her actions. incapacity contemplates is downright incapacity to assume marital obligations. In
the instant case, irreconcilable differences, sexual infidelity, emotional
The psychological incapacity of [Mary Grace] is of a juridical antecedence as it immaturity and irresponsibility were shown, but these do not warrant the grant
was already inher system even prior to the solemnization of her marriage with of Glenn’s petition. Mary Grace may be unwilling to assume her marital duties,
[Glenn]. x x x.13 (Underlining ours) but this does not translate into a psychological illness.19

On February 18, 2009, Glenn filed before the RTC a Petition for the Declaration of Glenn, on the other hand, sought the dismissal of the OSG’s appeal.
Nullity of his marriage with Mary Grace. Substituted service of summons was
made upon Mary Grace through her aunt, Susana Rosita.14 Mary Grace filed no On January 29, 2013, the CA rendered the herein assailed decision reversing the
answer and did not attend any of the proceedings before the RTC. RTC ruling and declaring the marriage between Glenn and Mary Grace as valid
and subsisting. The CA stated the reasons below:
During the trial, the testimonies of Glenn, Dr. Tayag and Rodelito were offered as
evidence. Glenn and Rodelito described Mary Grace as outgoing, carefree, and
In Santos vs. Court of Appeals, the Supreme Court held that "psychological The Supreme Court further went on to proclaim, that"Article 36 of the Family
incapacity" should refer to no less than a mental (not physical) incapacity that Code is not to be confused with a divorce law that cuts the marital bond at the
causes a party to be truly incognitive of the basic marital covenants that time the causes therefore manifest themselves". It refers to a serious
concomitantly must be assumed and discharged by the parties to the marriage psychological illness afflicting a party evenbefore the celebration of the marriage.
which, asso expressed by Article 68 of the Family Code, include their mutual It is a malady so grave and permanent as to deprive one of awareness of the
obligations to live together, observe love, respect and fidelity and render help duties and responsibilities of the matrimonial bond one is about to assume."
and support. There is hardly any doubt that the intendment of the law has been Psychological incapacity should refer to no less than a mental (not physical)
to confine the meaning of "psychological incapacity" to the most serious cases of incapacity that causes a party to be truly incognitive of the basic marital
personality disorders clearly demonstrative of an utter insensitivity or inability to covenants that concomitantly must be assumed and discharged by the parties to
give meaning and significance to the marriage. This psychological condition must the marriage.
exist at the time the marriage is celebrated. The psychological condition must be
characterized by (a) gravity, (b) juridical antecedence, and (c) incurability. From the foregoing, We cannot declare the dissolution of the marriage of the
parties for the obvious failure of [Glenn] to show that the alleged psychological
In the instant case, [Glenn] tried to prove that [Mary Grace] was carefree, incapacity of [Mary Grace] is characterized by gravity, juridical antecedence and
outgoing, immature, and irresponsible which made her unable to perform the incurability; and for his failure to observe the guidelines outlined in the afore-
essential obligations of marriage. He likewise alleged that she refused to cited cases.
communicate with him to save the marriage and eventually left him to work
abroad. To Our mind, the above actuations of [Mary Grace] do not make out a Verily, the burden of proof to show the nullity of the marriage belongs to [Glenn].
case of psychological incapacity on her part. Any doubt should be resolved in favor of the existence and continuation of the
marriage and against its dissolution and nullity. This is rooted from the fact that
While it is true that [Glenn’s] testimony was corroborated by [Dr. Tayag], a both our Constitution and our laws cherish the validity of marriage and unity of
psychologist who conducted a psychological examination on [Glenn], however, the family.20 (Citations omitted, underlining ours and emphasis and italics in the
said examination was conducted only on him and no evidence was shown that original)
the psychological incapacity of [Mary Grace] was characterized by gravity,
juridical antecedence, and incurability. The CA, through the herein assailed Resolution21 dated August 7, 2013, denied
the Motion for Reconsideration22filed by Glenn.
Certainly, the opinion of a psychologist would be of persuasive value in
determining the psychological incapacity of a person as she would be in the best Issue
position to assess and evaluate the psychological condition of the couple, she
being an expert in this field of study of behavior. Although the psychologist Unperturbed, Glenn now raises before this Court the issue of whether or not
stated that respondent was suffering from Narcissistic Personality Disorder, she sufficient evidence exist justifying the RTC’s declaration of nullity of his marriage
did not fully explain the root cause of the disorder nor did she makea conclusion with Mary Grace.
as to its gravity or permanence. Moreover, she admitted that she was not able to
examine the respondent[,] hence, the information provided to her may be In support thereof, Glenn points out that each petition for the declaration of
subjective and self-serving. Essential in this petition is the allegation of the root nullity of marriage should be judged according to its own set of facts, and not on
causeof the spouse’s psychological incapacity which should also be medically or the basis of assumptions, predilections or generalizations. The RTC judge should
clinically identified, sufficiently proven by experts and clearly explained in the pains takingly examine the factual milieu, while the CA must refrain from
decision. The incapacity must be proven to be existing at the time of the substituting its own judgment for that of the trial court.23 Further, Glenn argues
celebration of the marriageand shown to be medically or clinically permanent or that in Marcos v. Marcos,24 the Court ruled that it is not a sine qua non
incurable. It must also be grave enough to bring about the disability of the parties requirement for the respondent spouse to be personally examined by a physician
to assume the essential obligations of marriage as set forth in Articles 68 to 71 or psychologist before a marriage could be declared as a nullity.25 However, if the
and Articles 220 to 225 of the Family Code and such non-complied marital opinion of an expert is sought, his or her testimony should be considered as
obligations must similarly be alleged in the petition, established by evidence and decisive evidence.26 Besides, the findings of the trial court regarding the
explained in the decision. credibility of the witnesses should be respected.27

Unfortunately for [Glenn], the expert testimony of his witness did not establish In seeking the denial of the instant petition, the OSG emphasizes that the
the root cause of the psychological incapacity of [Mary Grace] nor was such arguments Glenn raise for our consideration are mere reiterations of the matters
ground alleged in the complaint. We reiterate the ruling of the Supreme Court on already resolved by the CA.28
this score, to wit: the root cause of the psychological incapacity must be: a)
medically or clinically identified; b) alleged in the complaint; c) sufficiently proven Ruling of the Court
by experts; and d) clearly explained in the decision.
The instant petition lacks merit.
Discoursing on this issue, the Supreme Court, in Republic of the Philippines vs.
Court of Appeals and Molina, has this to say: The lack of personal examination orassessment of the respondent by a
psychologist or psychiatrist is not necessarily fatal in a petition for the declaration
"Article 36 of the Family Code requires that the incapacity must be of nullity of marriage. "If the totality of evidence presented is enough to sustain a
psychological– not physical, although its manifestations and/or symptoms may finding of psychological incapacity, then actual medical examination of the
be physical. The evidence must convince the court that the parties, or one of person concerned need not be resorted to."29
them, was mentally or physically ill to such an extent that the person could not
have known the obligations he was assuming, or knowing them, could not have In the instant petition, however, the cumulative testimonies of Glenn, Dr. Tayag
given valid assumption thereof. Although no example of such incapacity need be and Rodelito, and the documentary evidence offered do not sufficiently prove
given here so as not to limit the application of the provision under the principle the root cause, gravity and incurability of Mary Grace’s condition. The evidence
of ejusdem generis x x x[,] nevertheless[,] suchroot cause must be identified as a merely shows that Mary Grace is outgoing, strong-willed and not inclined to
psychological illness and its incapacitating nature fully explained. Expert evidence perform household chores. Further, she is employed in Dubai and is romantically-
may be given by qualified psychiatrists and clinical psychologists." involved with another man. She has not been maintaining lines of
communication with Glenn at the time the latter filed the petition before the
RTC. Glenn, on the other hand, is conservative, family-oriented and is the exact Tayag only diagnosed the respondent from the prism of a third party account;
opposite of Mary Grace. While Glenn and Mary Grace possess incompatible she did not actually hear, see and evaluate the respondent and how he would
personalities, the latter’s acts and traits do not necessarily indicate psychological have reacted and responded to the doctor’s probes.
incapacity. Rumbaua v. Rumbaua30 is emphatic that:
Dr. Tayag, in her report, merely summarized the petitioner’s narrations, and on
In Bier v. Bier, we ruled that it was not enough that respondent, alleged to be this basis characterized the respondent to be a self-centered, egocentric, and
psychologically incapacitated, had difficulty in complying with his marital unremorseful person who "believes that the world revolves around him"; and
obligations, or was unwilling toperform these obligations. Proof of a natal or who "used love as a…deceptive tactic for exploiting the confidence [petitioner]
supervening disabling factor – an adverse integral element in the respondent’s extended towards him." x x x.
personality structure that effectively incapacitated him from complying with his
essential marital obligations – had to be shown and was not shown in this cited We find these observations and conclusions insufficiently in-depth and
case. comprehensive to warrant the conclusion that a psychological incapacity existed
that prevented the respondent from complying with the essential obligations of
In the present case, the respondent’s stubborn refusal to cohabit with the marriage. It failed to identify the root cause of the respondent’s narcissistic
petitioner was doubtlessly irresponsible, but it was never proven to be rooted in personality disorder and to prove that it existed at the inception of the marriage.
some psychological illness. x x x Likewise, the respondent’s act of living with Neither did it explain the incapacitating nature of the alleged disorder, nor show
another woman four years into the marriage cannot automatically be equated that the respondent was really incapable of fulfilling his duties due to some
with a psychological disorder, especially when no specific evidence was shown incapacity of a psychological, not physical, nature. Thus, we cannot avoid but
that promiscuity was a trait already existing at the inception of marriage. In fact, conclude that Dr. Tayag’s conclusion in her Report – i.e., that the respondent
petitioner herself admitted that respondent was caring and faithful when they suffered "Narcissistic Personality Disorder with traces of Antisocial Personality
were going steady and for a time after their marriage; their problems only came Disorder declared to be grave and incurable" – is an unfounded statement, not a
in later. necessary inference from her previous characterization and portrayal of the
respondent. While the various tests administered on the petitioner could have
x x x To use the words of Navales v. Navales: been used as a fair gauge to assess her own psychological condition, this same
statement cannot be made with respect to the respondent’s condition. To make
Article 36 contemplates downright incapacity or inability to take cognizance conclusions and generalizations on the respondent’s psychological condition
ofand to assume basic marital obligations. Mere "difficulty," "refusal" or based on the information fed by only one side is, to our mind, not different from
"neglect" in the performance of marital obligations or "ill will" on the part of the admitting hearsay evidence as proof of the truthfulness of the content of such
spouse is different from "incapacity" rooted on some debilitating psychological evidence.
condition or illness. Indeed, irreconcilable differences, sexual infidelity or
perversion, emotional immaturity and irresponsibility, and the like, do not by xxxx
themselves warrant a finding of psychological incapacity under Article 36, as the
same may only be due to a person’s refusal or unwillingness to assume the A careful reading of Dr. Tayag’s testimony reveals that she failed to establish the
essential obligations of marriage and not due to some psychological illness that is fact that at the time the parties were married, respondent was already suffering
contemplated by said rule.31 (Citations omitted, underlining ours and emphasis in from a psychological defect that deprived him of the ability to assume the
the original) essential duties and responsibilities of marriage. Neither did she adequately
explain howshe came to the conclusion that respondent’s condition was grave
It is worth noting that Glenn and Mary Grace lived with each other for more or and incurable. x x x
less seven years from 1999 to 2006. The foregoing established fact shows that
living together as spouses under one roof is not an impossibility. Mary Grace’s xxxx
departure from their home in 2006 indicates either a refusal or mere difficulty,
but not absolute inability to comply with her obligation to live with her husband. First, what she medically described was not related or linked to the respondent’s
exact condition except in a very general way. In short, her testimony and report
Further, considering that Mary Grace was not personally examined by Dr. Tayag, were rich in generalities but disastrously short on particulars, most notably on
there arose a greater burden to present more convincing evidence to prove the how the respondent can besaid to be suffering from narcissistic personality
gravity, juridical antecedence and incurability of the former’s condition. Glenn, disorder; why and to what extent the disorder is grave and incurable; how and
however, failed in this respect. Glenn’s testimony is wanting in material details. why it was already present at the time of the marriage; and the effects of the
Rodelito, on the other hand, is a blood relative of Glenn. Glenn’s statements are disorder on the respondent’s awareness of and his capability to undertake the
hardly objective. Moreover, Glenn and Rodelito both referred to Mary Grace’s duties and responsibilities of marriage. All these are critical to the success of the
traits and acts, which she exhibited during the marriage. Hence, there isnary a petitioner’s case.
proof on the antecedence of Mary Grace’s alleged incapacity. Glenn even
testified that, six months before they got married, they saw each other almost Second, her testimony was short on factual basis for her diagnosis because it was
everyday.32 Glenn saw "a loving[,] caring and well[-]educated person"33 in Mary wholly based on what the petitioner related toher. x x x If a psychological
Grace. disorder can be proven by independent means, no reason exists why such
independent proof cannot be admitted and given credit. No such independent
Anent Dr. Tayag’s assessment of Mary Grace’s condition, the Court finds the evidence, however, appears on record to have been gathered in this case,
same as unfounded.1âwphi1 Rumbaua34provides some guidelines on how the particularly about the respondent’s early life and associations, and about events
courts should evaluate the testimonies of psychologists or psychiatrists in on orabout the time of the marriage and immediately thereafter. Thus, the
petitions for the declaration of nullity of marriage, viz: testimony and report appearto us to be no more than a diagnosis that revolves
around the one-sided and meagre facts that the petitioner related, and were all
We cannot help but note that Dr. Tayag’s conclusions about the respondent’s slanted to support the conclusion that a ground exists to justify the nullification
psychological incapacity were based on the information fed to her by only one of the marriage. We say this because only the baser qualities of the respondent’s
side – the petitioner – whose bias in favor of her cause cannot be doubted. While life were examined and given focus; none of these qualities were weighed and
this circumstance alone does notdisqualify the psychologist for reasons of bias, balanced with the better qualities, such as his focus on having a job, his
her report, testimony and conclusions deserve the application of a more rigid and determination to improve himself through studies, his care and attention in the
stringent set of standards in the manner we discussed above. For, effectively, Dr. first six months of the marriage, among others. The evidence fails to mention
also what character and qualities the petitioner brought into her marriage, for guiltlessness. And this burden is met not by bestowing distrust on the innocence
example, why the respondent’s family opposed the marriage and what events led of the accused but by obliterating all doubts as to his culpability.
the respondent to blame the petitioner for the death of his mother, if this
allegation is at all correct. To be sure, these are important because not a few In this Petition for Review[1] under Rule 45 of the Rules of Court, Junie Malillin y
marriages have failed, not because of psychological incapacity of either or both Lopez (petitioner) assails the Decision[2] of the Court of Appeals dated 27 January
of the spouses, but because of basic incompatibilities and marital developments 2006 as well as its Resolution[3] dated 30 May 2006 denying his motion for
that do not amount to psychological incapacity. x x x.35 (Citations omitted and reconsideration. The challenged decision has affirmed the Decision[4] of the
underlining ours) Regional Trial Court (RTC) of Sorsogon City, Branch 52[5] which found petitioner
guilty beyond reasonable doubt of illegal possession of methamphetamine
In the case at bar, Dr. Tayag made general references to Mary Grace’s status as hydrochloride, locally known as shabu, a prohibited drug.
the eldest among her siblings,36her father’s being an overseas contract worker
and her very tolerant mother, a housewife.37 These, however, are not sufficient The antecedent facts follow.
to establish and explain the supposed psychological incapacity of Mary Grace
warranting the declaration of the nullity of the couple’s marriage. On the strength of a warrant[6] of search and seizure issued by the RTC
of Sorsogon City, Branch 52, a team of five police officers raided the residence of
The Court understands the inherent difficulty attendant to obtaining the petitioner in Barangay Tugos, Sorsogon City on 4 February 2003. The team was
statements of witnesses who can attest to the antecedence of a person’s headed by P/Insp. Catalino Bolanos (Bolanos), with PO3 Roberto Esternon
psychological incapacity, but such difficulty does not exempt a petitioner from (Esternon), SPO1 Pedro Docot, SPO1 Danilo Lasala and SPO2
complying with what the law requires. While the Court also commiserates with Romeo Gallinera (Gallinera) as members. The searchconducted in the presence
Glenn’s marital woes, the totality of the evidence presented provides inadequate of barangay kagawad
basis for the Court to conclude that Mary Grace is indeed psychologically
incapacitated to comply with her obligations as Glenn’s spouse. Delfin Licup as well as petitioner himself, his wife Sheila and his mother,
Normaallegedly yielded two (2) plastic sachets of shabu and five (5) empty plastic
WHEREFORE, the instant petition is DENIED. The Decision dated January 29, 2013 sachets containing residual morsels of the said substance.
and Resolution dated August 7, 2013 of the Court of Appeals in CA-G.R. CV No.
96448 are AFFIRMED. Accordingly, petitioner was charged with violation of Section 11, [7] Article II of
Republic Act No. 9165, otherwise known as The Comprehensive Dangerous Drugs
SO ORDERED. Act of 2002, in a criminal information whose inculpatory portion reads:

That on or about the 4th day of February 2003, at about 8:45 in the morning in
Barangay Tugos, Sorsogon City, Philippines, the said accused did then and there
UNIE MALLILLIN Y. LOPEZ, G.R. No. 172953 willfully, unlawfully and feloniously have in his possession, custody and control
two (2) plastic sachets of methamphetamine hydrochloride [or] shabu with an
Petitioner, aggregate weight of 0.0743 gram, and four empty sachets
containing shabu residue, without having been previously authorized by law to
Present: possess the same.

QUISUMBING, J., CONTRARY TO LAW.[8]

- versus - Chairperson, Petitioner entered a negative plea.[9] At the ensuing trial, the prosecution
presented Bolanos, Arroyo and Esternon as witnesses.
CARPIO MORALES,
Taking the witness stand, Bolanos, the leader of the raiding team, testified on the
TINGA, circumstances surrounding the search as follows: that he and his men were
allowed entry into the house by petitioner after the latter was shown the search
VELASCO, JR., and warrant; that upon entering the premises, he ordered Esternon
and barangay kagawad Licup, whose assistance had previously been requested
PEOPLE OF THE PHILIPPINES, BRION, JJ. in executing the warrant, to conduct the search; that the rest of the police team
positioned themselves outside the house to make sure that nobody flees; that he
Respondent. was observing the conduct of the search from about a meter away; that the
search conducted inside the bedroom of petitioner yielded five empty plastic
Promulgated: sachets with suspected shabu residue contained in a denim bag and kept in one
of the cabinets, and two plastic sachets containing shabu which fell off from one
April 30, 2008 of the pillows searched by Esternona discovery that was made in the presence of
petitioner.[10] On cross examination, Bolanos admitted that during the search, he
x ---------------------------------------------------------------------------------x was explaining its progress to petitioners mother, Norma, but that at the same
time his eyes were fixed on the search being conducted by Esternon.[11]
DECISION
Esternon testified that the denim bag containing the empty plastic sachets was
TINGA, J.: found behind the door of the bedroom and not inside the cabinet; that he then
found the two filled sachets under a pillow on the bed and forthwith called
The presumption of regularity in the performance of official functions cannot by on Gallinera to have the items recorded and marked.[12] On cross, he admitted
its lonesome overcome the constitutional presumption of innocence. Evidence of that it was he alone who conducted the search because Bolanos was standing
guilt beyond reasonable doubt and nothing else can eclipse the hypothesis of behind him in the living room portion of the house and that petitioner handed to
him the things to be searched, which included the pillow in which the two
sachets of shabu were kept;[13] that he brought the seized items to
the Balogo Police Station for a true inventory, then to the trial court[14] and indeterminate term of twelve (12) years as minimum to seventeen (17) years as
thereafter to the laboratory.[15] maximum.[28] Petitioner moved for reconsideration but the same was denied by
the appellate court.[29] Hence, the instant petition which raises substantially the
Supt. Lorlie Arroyo (Arroyo), the forensic chemist who administered the same issues.
examination on the seized items, was presented as an expert witness to identify
the items submitted to the laboratory. She revealed that the two filled sachets
were positive of shabu and that of the five empty sachets, four were positive of
containing residue of the same substance.[16] She further admitted that all seven In its Comment,[30] the OSG bids to establish that the raiding team had regularly
sachets were delivered to the laboratory by Esternon in the afternoon of the performed its duties in the conduct of the search.[31] It points to petitioners
same day that the warrant was executed except that it was not she but rather a incredulous claim that he was framed up by Esternon on the ground that the
certain Mrs. Ofelia Garcia who received the items from Esternon at the discovery of the two filled sachets was made in his and Licups presence. It
laboratory.[17] likewise notes that petitioners bare denial cannot defeat the positive assertions
of the prosecution and that the same does not suffice to overcome the prima
facie existence of animus possidendi.

The evidence for the defense focused on the irregularity of the search and This argument, however, hardly holds up to what is revealed by the records.
seizure conducted by the police operatives. Petitioner testified that Esternon
began the search of the bedroom with Licup and petitioner himself inside. Prefatorily, although the trial courts findings of fact are entitled to great weight
However, it was momentarily interrupted when one of the police officers and will not be disturbed on appeal, this rule does not apply where facts of
declared to Bolanos that petitioners wife, Sheila, was tucking something inside weight and substance have been overlooked, misapprehended or misapplied in a
her underwear. Forthwith, a lady officer arrived to conduct the search of Sheilas case under appeal.[32] In the case at bar, several circumstances obtain which, if
body inside the same bedroom. At that point, everyone except Esternon was properly appreciated, would warrant a conclusion different from that arrived at
asked to step out of the room. So, it was in his presence that Sheila was searched by the trial court and the Court of Appeals.
by the lady officer. Petitioner was then asked by a police officer to buy
Prosecutions for illegal possession of prohibited drugs necessitates that the
cigarettes at a nearby store and when he returned from the errand, he was told elemental act of possession of a prohibited substance be established with moral
that nothing was found on Sheilas body.[18] Sheila was ordered to transfer to the certainty, together with the fact that the same is not authorized by law. The
other bedroom together with her children.[19] dangerous drug itself constitutes the very corpus delicti of the offense and the
fact of its existence is vital to a judgment of conviction.[33] Essential therefore in
Petitioner asserted that on his return from the errand, he was summoned by these cases is that the identity of the prohibited drug be established beyond
Esternon to the bedroom and once inside, the officer closed the door and asked doubt.[34] Be that as it may, the mere fact of unauthorized possession will not
him to lift the mattress on the bed. And as he was doing as told, Esternon suffice to create in a reasonable mind the moral certainty required to sustain a
stopped him and ordered him to lift the portion of the headboard. In that instant, finding of guilt. More than just the fact of possession, the fact that the substance
Esternon showed him sachet of shabuwhich according to him came from a pillow illegally possessed in the first place is the same substance offered in court as
on the bed.[20] Petitioners account in its entirety was corroborated in its material exhibit must also be established with the same unwavering exactitude as that
respects by Norma, barangay kagawad Licup and Sheila in their testimonies. requisite to make a finding of guilt. The chain of custody requirement performs
Norma and Sheila positively declared that petitioner was not in the house for the this function in that it ensures that unnecessary doubts concerning the identity of
entire duration of the search because at one point he was sent by Esternon to the evidence are removed.[35]
the store to buy cigarettes while Sheila was being searched by the lady
officer.[21] Licup for his part testified on the circumstances surrounding the As a method of authenticating evidence, the chain of custody rule requires that
discovery of the plastic sachets. He recounted that after the five empty sachets the admission of an exhibit be preceded by evidence sufficient to support a
were found, he went out of the bedroom and into the living room and after finding that the matter in question is what the proponent claims it to be.[36] It
about three minutes, Esternon, who was left inside the bedroom, exclaimed that would include testimony about every link in the chain, from the moment the item
he had just found two filled sachets.[22] was picked up to the time it is offered into evidence, in such a way that every
person who touched the exhibit would describe how and from whom it was
On 20 June 2004 the trial court rendered its Decision declaring petitioner guilty received, where it was and what happened to it while in the witness possession,
beyond reasonable doubt of the offense charged. Petitioner was condemned to the condition in which it was received and the condition in which it was delivered
prison for twelve years (12) and one (1) day to twenty (20) years and to pay a fine to the next link in the chain. These witnesses would then describe the
of P300,000.00.[23] The trial court reasoned that the fact that shabu was found in precautions taken to ensure that there had been no change in the condition of
the house of petitioner was prima facie evidence of the item and no opportunity for someone not in the chain to have possession of
petitioners animus possidendi sufficient to convict him of the charge inasmuch as the same.[37]
things which a person possesses or over which he exercises acts of ownership are
presumptively owned by him. It also noted petitioners failure to ascribe ill While testimony about a perfect chain is not always the standard because it is
motives to the police officers to fabricate charges against him.[24] almost always impossible to obtain, an unbroken chain of custody becomes
indispensable and essential when the item of real evidence is not distinctive and
Aggrieved, petitioner filed a Notice of Appeal.[25] In his Appeal Brief[26] filed with is not readily identifiable, or when its condition at the time of testing or trial is
the Court of Appeals, petitioner called the attention of the court to certain critical, or when a witness has failed to observe its uniqueness.[38] The same
irregularities in the manner by which the search of his house was conducted. For standard likewise obtains in case the evidence is susceptible to alteration,
its part, the Office of the Solicitor General (OSG) advanced that on the contrary, tampering, contamination[39] and even substitution and exchange.[40] In other
the prosecution evidence sufficed for petitioners conviction and that the defense words, the exhibits level of susceptibility to fungibility, alteration or
never advanced any proof to show that the members of the raiding team was tamperingwithout regard to whether the same is advertent or otherwise
improperly motivated to hurl false charges against him and hence the notdictates the level of strictness in the application of the chain of custody rule.
presumption that they had regularly performed their duties should prevail.[27]

On 27 January 2006, the Court of Appeals rendered the assailed decision


affirming the judgment of the trial court but modifying the prison sentence to an
Indeed, the likelihood of tampering, loss or mistake with respect to an exhibit is of Bolanos that he posted some of the members of the raiding team at the door
greatest when the exhibit is small and is one that has physical characteristics of petitioners house in order to forestall the likelihood of petitioner fleeing the
fungible in nature and similar in form to substances familiar to people in their scene. By no stretch of logic can it be conclusively explained why petitioner was
daily lives.[41] Graham vs. State[42] positively acknowledged this danger. In that sent out of his house on an errand when in the first place the police officers were
case where a substance later analyzed as heroinwas handled by two police in fact apprehensive that he would flee to evade arrest. This fact assumes prime
officers prior to examination who however did not testify in court on the importance because the two filled sachets were allegedly discovered by Esternon
condition and whereabouts of the exhibit at the time it was in their immediately after petitioner returned to his house from the errand, such that he
possessionwas excluded from the prosecution evidence, the court pointing out was not able to witness the conduct of the search during the brief but crucial
that the white powder seized could have been indeed heroin or it could have interlude that he was away.
been sugar or baking powder. It ruled that unless the state can show by records
or testimony, the continuous whereabouts of the exhibit at least between the
time it came into the possession of police officers until it was tested in the
laboratory to determine its composition, testimony of the state as to the It is also strange that, as claimed by Esternon, it was petitioner himself who
laboratorys findings is inadmissible.[43] handed to him the items to be searched including the pillow from which the two
filled sachets allegedly fell. Indeed, it is contrary to ordinary human behavior that
A unique characteristic of narcotic substances is that they are not readily petitioner would hand over the said pillow to Esternon knowing fully well that
identifiable as in fact they are subject to scientific analysis to determine their illegal drugs are concealed therein. In the same breath, the manner by which the
composition and nature. The Court cannot reluctantly close its eyes to the search of Sheilas body was brought up by a member of the raiding team also
likelihood, or at least the possibility, that at any of the links in the chain of raises serious doubts as to the necessity thereof.The declaration of one of the
custody over the same there could have been tampering, alteration or police officers that he saw Sheila tuck something in her underwear certainly
substitution of substances from other casesby accident or otherwisein which diverted the attention of the members of petitioners household away from the
similar evidence was seized or in which similar evidence was submitted for search being conducted by Esternon prior to the discovery of the two filled
laboratory testing. Hence, in authenticating the same, a standard more stringent sachets. Lest it be omitted, the Court likewise takes note of Esternons suspicious
than that applied to cases involving objects which are readily identifiable must be presence in the bedroom while Sheila was being searched by a lady officer. The
applied, a more exacting standard that entails a chain of custody of the item with confluence of these circumstances by any objective standard of behavior
sufficient completeness if only to render it improbable that the original item has contradicts the prosecutions claim of regularity in the exercise of duty.
either been exchanged with another or been contaminated or tampered with.
Moreover, Section 21[44] of the Implementing Rules and Regulations of R.A. No.
A mere fleeting glance at the records readily raises significant doubts as to the 9165 clearly outlines the post-seizure procedure in taking custody of seized
identity of the sachets of shabu allegedly seized from petitioner. Of the people drugs. In a language too plain to require a different construction, it mandates
who came into direct contact with the seized objects, only Esternon and Arroyo that the officer acquiring initial custody of drugs under a search warrant must
testified for the specific purpose of establishing the identity of the conduct the photographing and the physical inventory of the item at the place
evidence. Gallinera, to whom Esternon supposedly handed over the confiscated where the warrant has been served. Esternon deviated from this procedure. It
sachets for recording and marking, as well as Garcia, the person to whom was elicited from him that at the close of the search of petitioners house, he
Esternon directly handed over the seized items for chemical analysis at the crime brought the seized items immediately to the police station for the alleged
laboratory, were not presented in court to establish the circumstances under purpose of making a true inventory thereof, but there appears to be no reason
which they handled the subject items. Any reasonable mind might then ask the why a true inventory could not be made in petitioners house when in fact the
question: Are the sachets of shabu allegedly seized from petitioner the very same apprehending team was able to record and mark the seized items and there and
objects laboratory tested and offered in court as evidence? then prepare a seizure receipt therefor. Lest it be forgotten, the raiding team has
had enough opportunity to cause the issuance of the warrant which means that it
The prosecutions evidence is incomplete to provide an affirmative answer. has had as much time to prepare for its implementation. While the final proviso
Considering that it was Gallinera who recorded and marked the seized items, his in Section 21 of the rules would appear to excuse non-compliance therewith, the
testimony in court is crucial to affirm whether the exhibits were the same items same cannot benefit the prosecution as it failed to offer any acceptable
handed over to him by Esternon at the place of seizure and acknowledge the justification for Esternons course of action.
initials marked thereon as his own.The same is true of Garcia who could have,
but nevertheless failed, to testify on the circumstances under which she received Likewise, Esternons failure to deliver the seized items to the court demonstrates
the items from Esternon, what she did with them during the time they were in a departure from the directive in the search warrant that the items seized be
her possession until before she delivered the same to Arroyo for analysis. immediately delivered to the trial court with a true and verified inventory of the
same,[45] as required by Rule 126, Section 12[46] of the Rules of Court. People
The prosecution was thus unsuccessful in discharging its burden of establishing v. Go[47] characterized this requirement as mandatory in order to preclude the
the identity of the seized items because it failed to offer not only the testimony substitution of or tampering with said items by interested parties. [48] Thus, as a
of Gallineraand Garcia but also any sufficient explanation for such failure. In reasonable safeguard, People vs. Del Castillo[49] declared that the approval by the
effect, there is no reasonable guaranty as to the integrity of the exhibits court which issued the search warrant is necessary before police officers can
inasmuch as it failed to rule out the possibility of substitution of the exhibits, retain the property seized and without it, they would have no authority to retain
which cannot but inure to its own detriment. This holds true not only with possession thereof and more so to deliver the same to another agency.[50] Mere
respect to the two filled sachets but also to the five sachets allegedly containing tolerance by the trial court of a contrary practice does not make the practice
morsels of shabu. right because it is violative of the mandatory requirements of the law and it
thereby defeats the very purpose for the enactment.[51]
Also, contrary to what has been consistently claimed by the prosecution that the
search and seizure was conducted in a regular manner and must be presumed to Given the foregoing deviations of police officer Esternon from the standard and
be so, the records disclose a series of irregularities committed by the police normal procedure in the implementation of the warrant and in taking post-
officers from the commencement of the search of petitioners house until the seizure custody of the evidence, the blind reliance by the trial court and the
submission of the seized items to the laboratory for analysis. The Court takes Court of Appeals on the presumption of regularity in the conduct of police duty is
note of the unrebutted testimony of petitioner, corroborated by that of his wife, manifestly misplaced. The presumption of regularity is merely just thata mere
that prior to the discovery of the two filled sachets petitioner was sent out of his presumption disputable by contrary proof and which when challenged by the
house to buy cigarettes at a nearby store. Equally telling is the testimony evidence cannot be regarded as binding truth.[52]Suffice it to say that this
presumption cannot preponderate over the presumption of innocence that Laguna, Branch 31. The case was docketed as Criminal Case No. 4990-SPL. The
prevails if not overthrown by proof beyond reasonable doubt.[53] In the present Information reads:
case the lack of conclusive identification of the illegal drugs allegedly seized from
petitioner, coupled with the irregularity in the manner by which the same were That on or about January 24, 1983, in the Municipality of San Pedro, Province of
placed under police custody before offered in court, strongly militates a finding Laguna, Philippines, and within the jurisdiction of this Honorable Court, the said
of guilt. accused did then and there willfully, unlawfully and feloniously contract a second
or subsequent marriage with one SILVERIO CIPRIANO VINALON while her first
In our constitutional system, basic and elementary is the presupposition that the marriage with SOCRATES FLORES has not been judicially dissolved by proper
burden of proving the guilt of an accused lies on the prosecution which must rely judicial authorities.11
on the strength of its own evidence and not on the weakness of the defense. The
rule is invariable whatever may be the reputation of the accused, for the law On July 24, 2007 and before her arraignment, respondent, through counsel, filed
presumes his innocence unless and until the contrary is a Motion to Quash Information (and Dismissal of the Criminal
shown.[54] In dubio pro reo. When moral certainty as to culpability hangs in the Complaint)12 alleging that her marriage with Socrates had already been declared
balance, acquittal on reasonable doubt inevitably becomes a matter of right. void ab initio in 2003, thus, there was no more marriage to speak of prior to her
marriage to Silverio on January 24, 1983; that the basic element of the crime of
WHEREFORE, the assailed Decision of the Court of Appeals dated 27 January bigamy, i.e., two valid marriages, is therefore wanting. She also claimed that
2006 affirming with modification the judgment of conviction of the Regional Trial since the second marriage was held in 1983, the crime of bigamy had already
Court of Sorsogon City, Branch 52, and its Resolution dated 30 May 2006 denying prescribed. The prosecution filed its Comment13 arguing that the crime of bigamy
reconsideration thereof, are REVERSED and SET ASIDE. Petitioner Junie Malillin y had already been consummated when respondent filed her petition for
Lopez is ACQUITTED on reasonable doubt and is accordingly ordered declaration of nullity; that the law punishes the act of contracting a second
immediately released from custody unless he is being lawfully held for another marriage which appears to be valid, while the first marriage is still subsisting and
offense. has not yet been annulled or declared void by the court.

The Director of the Bureau of Corrections is directed to implement this Decision In its Order14 dated August 3, 2007, the RTC denied the motion. It found
and to report to this Court the action taken hereon within five (5) days from respondent's argument that with the declaration of nullity of her first marriage,
receipt. there was no more first marriage to speak of and thus the element of two valid
marriages in bigamy was absent, to have been laid to rest by our ruling in
SO ORDERED. Mercado v. Tan15 where we held:

G.R. No. 181089 October 22, 2012 In the instant case, petitioner contracted a second marriage although there was
yet no judicial declaration of nullity of his first marriage. In fact, he instituted the
MERLINDA CIPRIANO MONTAÑES, Complainant, Petition to have the first marriage declared void only after complainant had filed
vs. a letter-complaint charging him with bigamy. For contracting a second marriage
LOURDES TAJOLOSA CIPRIANO, Respondent. while the first is still subsisting, he committed the acts punishable under Article
349 of the Revised Penal Code.
DECISION
That he subsequently obtained a judicial declaration of the nullity of the first
PERALTA, J.: marriage was immaterial. To repeat, the crime had already been consummated
by then. x x x16
For our resolution is a petition for review on certiorari which seeks to annul the
Order1 dated September 24, 2007 of the Regional Trial Court (RTC) of San Pedro, As to respondent's claim that the action had already prescribed, the RTC found
Laguna, Branch 31, issued in Criminal Case No. 4990-SPL which dismissed the that while the second marriage indeed took place in 1983, or more than the 15-
lnformation for Bigamy filed against respondent Lourdes Tajolosa Cipriano. Also year prescriptive period for the crime of bigamy, the commission of the crime
assailed is the RTC Resolution2 dated January 2, 2008 denying the motion for was only discovered on November 17, 2004, which should be the reckoning
reconsideration. period, hence, prescription has not yet set in.

On April 8, 1976, respondent married Socrates Flores (Socrates) in Lezo, Respondent filed a Motion for Reconsideration17 claiming that the Mercado ruling
Aklan.3 On January 24, 1983, during the subsistence of the said marriage, was not applicable, since respondent contracted her first marriage in 1976, i.e.,
respondent married Silverio V. Cipriano (Silverio) in San Pedro, Laguna.4 In 2001, before the Family Code; that the petition for annulment was granted and became
respondent filed with the RTC of Muntinlupa, Branch final before the criminal complaint for bigamy was filed; and, that Article 40 of
the Family Code cannot be given any retroactive effect because this will impair
256, a Petition for the Annulment of her marriage with Socrates on the ground of her right to remarry without need of securing a declaration of nullity of a
the latter’s psychological incapacity as defined under Article 36 of the Family completely void prior marriage.
Code, which was docketed as Civil Case No. 01-204. On July 18, 2003, the RTC of
Muntinlupa, Branch 256, rendered an Amended Decision5 declaring the marriage On September 24, 2007, the RTC issued its assailed Order,18 the dispositive
of respondent with Socrates null and void. Said decision became final and portion of which reads:
executory on October 13, 2003.6
Wherefore, the Order of August 3, 2007 is reconsidered and set aside. Let a new
On May 14, 2004, petitioner Merlinda Cipriano Montañez, Silverio’s daughter one be entered quashing the information. Accordingly, let the instant case be
from the first marriage, filed with the Municipal Trial Court of San Pedro, Laguna, DISMISSED.
a Complaint7 for Bigamy against respondent, which was docketed as Criminal
Case No. 41972. Attached to the complaint was an Affidavit8 (Malayang SO ORDERED.
Sinumpaang Salaysay) dated August 23, 2004, thumb-marked and signed by
Silverio,9 which alleged, among others, that respondent failed to reveal to Silverio In so ruling, the RTC said that at the time the accused had contracted a second
that she was still married to Socrates. On November 17, 2004, an marriage on January 24, 1983, i.e., before the effectivity of the Family Code, the
Information10 for Bigamy was filed against respondent with the RTC of San Pedro, existing law did not require a judicial declaration of absolute nullity as a condition
precedent to contracting a subsequent marriage; that jurisprudence before the As to the merit of the petition, the issue for resolution is whether or not the RTC
Family Code was ambivalent on the issue of the need of prior judicial declaration erred in quashing the Information for bigamy filed against respondent.
of absolute nullity of the first marriage. The RTC found that both marriages of
respondent took place before the effectivity of the Family Code, thus, Article 349 of the Revised Penal Code defines and penalizes bigamy as follow:
considering the unsettled state of jurisprudence on the need for a prior
declaration of absolute nullity of marriage before commencing a second marriage Art. 349. Bigamy. – The penalty of prision mayor shall be imposed upon any
and the principle that laws should be interpreted liberally in favor of the accused, person who shall contract a second or subsequent marriage before the former
it declared that the absence of a judicial declaration of nullity should not marriage has been legally dissolved, or before the absent spouse has been
prejudice the accused whose second marriage was declared once and for all valid declared presumptively dead by means of a judgment rendered in the proper
with the annulment of her first marriage by the RTC of Muntinlupa City in 2003. proceedings.

Dissatisfied, a Motion for Reconsideration was filed by the prosecution, but The elements of the crime of bigamy are: (a) the offender has been legally
opposed by respondent. In a Resolution dated January 2, 2008, the RTC denied married; (b) the marriage has not been legally dissolved or, in case his or her
the same ruling, among others, that the judicial declaration of nullity of spouse is absent, the absent spouse could not yet be presumed dead according
respondent's marriage is tantamount to a mere declaration or confirmation that to the Civil Code; (c) that he contracts a second or subsequent marriage; and (d)
said marriage never existed at all, and for this reason, her act in contracting a the second or subsequent marriage has all the essential requisites for validity.
second marriage cannot be considered criminal. The felony is consummated on the celebration of the second marriage or
subsequent marriage.23 It is essential in the prosecution for bigamy that the
Aggrieved, petitioner directly filed the present petition with us raising the alleged second marriage, having all the essential requirements, would be valid
following issues: were it not for the subsistence of the first marriage.24

I. Whether the judicial nullity of a first marriage prior to the enactment of the In this case, it appears that when respondent contracted a second marriage with
Family Code and the pronouncement in Wiegel vs. Sempio-Diy on the ground of Silverio in 1983, her first marriage with Socrates celebrated in 1976 was still
psychological incapacity is a valid defense for a charge of bigamy for entering into subsisting as the same had not yet been annulled or declared void by a
a second marriage prior to the enactment of the Family Code and the competent authority. Thus, all the elements of bigamy were alleged in the
pronouncement in Wiegel vs. Sempio-Diy? Information. In her Motion to Quash the Information, she alleged, among others,
that:
II. Whether the trial court erred in stating that the jurisprudence prior to the
enactment of the Family Code and the pronouncement in Wiegel vs. Sempio-Diy xxxx
regarding the necessity of securing a declaration of nullity of the first marriage
before entering a second marriage ambivalent, such that a person was allowed to 2. The records of this case would bear out that accused's marriage with said
enter a subsequent marriage without the annulment of the first without incurring Socrates Flores was declared void ab initio on 14 April 2003 by Branch 256 of the
criminal liability.19 Regional Trial Court of Muntinlupa City. The said decision was never appealed,
and became final and executory shortly thereafter.
Preliminarily, we note that the instant petition assailing the RTC's dismissal of the
Information for bigamy was filed by private complainant and not by the Office of 3. In other words, before the filing of the Information in this case, her marriage
the Solicitor General (OSG) which should represent the government in all judicial with Mr. Flores had already been declared void from the beginning.
proceedings filed before us.20
4. There was therefore no marriage prior to 24 January 1983 to speak of. In other
Notwithstanding, we will give due course to this petition as we had done in the words, there was only one marriage.
past. In Antone v. Beronilla,21 the offended party (private complainant)
questioned before the Court of Appeals (CA) the RTC's dismissal of the 5. The basic element of the crime of bigamy, that is, two valid marriages, is
Information for bigamy filed against her husband, and the CA dismissed the therefore wanting.25
petition on the ground, among others, that the petition should have been filed in
behalf of the People of the Philippines by the OSG, being its statutory counsel in Clearly, the annulment of respondent's first marriage on the ground of
all appealed criminal cases. In a petition filed with us, we said that we had given psychological incapacity was declared only in 2003. The question now is whether
due course to a number of actions even when the respective interests of the the declaration of nullity of respondent's first marriage justifies the dismissal of
government were not properly represented by the OSG and said: the Information for bigamy filed against her.

In Labaro v. Panay, this Court dealt with a similar defect in the following manner: We rule in the negative.

It must, however, be stressed that if the public prosecution is aggrieved by any In Mercado v. Tan,26 we ruled that the subsequent judicial declaration of the
order ruling of the trial judge in a criminal case, the OSG, and not the prosecutor, nullity of the first marriage was immaterial, because prior to the declaration of
must be the one to question the order or ruling before us. x x x nullity, the crime of bigamy had already been consummated. And by contracting
a second marriage while the first was still subsisting, the accused committed the
Nevertheless, since the challenged order affects the interest of the State or the acts punishable under Article 349 of the Revised Penal Code.
plaintiff People of the Philippines, we opted not to dismiss the petition on this
technical ground. Instead, we required the OSG to comment on the petition, as In Abunado v. People,27 we held that what is required for the charge of bigamy to
we had done before in some cases. In light of its Comment, we rule that the OSG prosper is that the first marriage be subsisting at the time the second marriage is
has ratified and adopted as its own the instant petition for the People of the contracted.28 Even if the accused eventually obtained a declaration that his first
Philippines. (Emphasis supplied)22 marriage was void ab initio, the point is, both the first and the second marriage
were subsisting before the first marriage was annulled.29
Considering that we also required the OSG to file a Comment on the petition,
which it did, praying that the petition be granted in effect, such Comment had In Tenebro v. CA,30 we declared that although the judicial declaration of the
ratified the petition filed with us. nullity of a marriage on the ground of psychological incapacity retroacts to the
date of the celebration of the marriage insofar as the vinculum between the
spouses is concerned, it is significant to note that said marriage is not without application of procedural laws is not violative of any right of a person who may
legal effects. Among these effects is that children conceived or born before the feel that he is adversely affected. The reason is that as a general rule, no vested
judgment of absolute nullity of the marriage shall be considered legitimate. right may attach to, nor arise from, procedural laws.1âwphi1
There is, therefore, a recognition written into the law itself that such a marriage,
although void ab initio, may still produce legal consequences. Among these legal In Marbella-Bobis v. Bobis, the Court pointed out the danger of not enforcing the
consequences is incurring criminal liability for bigamy. To hold otherwise would provisions of Article 40 of the Family Code, to wit:
render the State’s penal laws on bigamy completely nugatory, and allow
individuals to deliberately ensure that each marital contract be flawed in some In the case at bar, respondent’s clear intent is to obtain a judicial declaration
manner, and to thus escape the consequences of contracting multiple marriages, nullity of his first marriage and thereafter to invoke that very same judgment to
while beguiling throngs of hapless women with the promise of futurity and prevent his prosecution for bigamy. He cannot have his cake and eat it too.
commitment.31 Otherwise, all that an adventurous bigamist has to do is disregard Article 40 of
the Family Code, contract a subsequent marriage and escape a bigamy charge by
And in Jarillo v. People,32 applying the foregoing jurisprudence, we affirmed the simply claiming that the first marriage is void and that the subsequent marriage is
accused's conviction for bigamy, ruling that the moment the accused contracted equally void for lack of a prior judicial declaration of nullity of the first. A party
a second marriage without the previous one having been judicially declared null may even enter into a marriage license and thereafter contract a subsequent
and void, the crime of bigamy was already consummated because at the time of marriage without obtaining a declaration of nullity of the first on the assumption
the celebration of the second marriage, the accused’s first marriage which had that the first marriage is void. Such scenario would render nugatory the provision
not yet been declared null and void by a court of competent jurisdiction was on bigamy.38
deemed valid and subsisting.
WHEREFORE, considering the foregoing, the petition is GRANTED. The Order
Here, at the time respondent contracted the second marriage, the first marriage dated September 24, 2007 and the Resolution dated January 2, 2008 of the
was still subsisting as it had not yet been legally dissolved. As ruled in the above- Regional Trial Court of San Pedro, Laguna, Branch 31, issued in Criminal Case No.
mentioned jurisprudence, the subsequent judicial declaration of nullity of the 4990-SPL, are hereby SET ASIDE. Criminal Case No. 4990-SPL is ordered
first marriage would not change the fact that she contracted the second marriage REMANDED to the trial court for further proceedings.
during the subsistence of the first marriage. Thus, respondent was properly
charged of the crime of bigamy, since the essential elements of the offense SO ORDERED.
charged were sufficiently alleged.
A.M. No. 02-11-10-SC March 4, 2003
Respondent claims that Tenebro v. CA33 is not applicable, since the declaration of
nullity of the previous marriage came after the filing of the Information, unlike in RE: PROPOSED RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID
this case where the declaration was rendered before the information was filed. MARRIAGES AND ANNULMENT OF VOIDABLE MARRIAGES
We do not agree. What makes a person criminally liable for bigamy is when he
contracts a second or subsequent marriage during the subsistence of a valid RESOLUTION
marriage.
Acting on the letter of the Chairman of the Committee on Revision of the
Parties to the marriage should not be permitted to judge for themselves its Rules of Court submitting for this Court's consideration and approval the
nullity, for the same must be submitted to the judgment of competent courts and Proposed Rule on Declaration of Absolute Nullity of Void Marriages and
only when the nullity of the marriage is so declared can it be held as void, and so Annulment of Voidable Marriages, the Court Resolved to APPROVE the same.
long as there is no such declaration the presumption is that the marriage
exists.34 Therefore, he who contracts a second marriage before the judicial The Rule shall take effect on March 15, 2003 following its publication in a
declaration of nullity of the first marriage assumes the risk of being prosecuted newspaper of general circulation not later than March 7, 2003
for bigamy.35
March 4, 2003
Anent respondent's contention in her Comment that since her two marriages
were contracted prior to the effectivity of the Family Code, Article 40 of the Davide, C.J. Bellosillo, Puno, Vitug Mendoza, Panganiban, Quisumbing, Sandoval-
Family Code cannot be given retroactive effect because this will impair her right Gutierrez, Carpio, Austria-Martinez, Carpio Morales, Callejo, Sr. and Azcuna
to remarry without need of securing a judicial declaration of nullity of a Ynares-Santiago, on leave
completely void marriage. Corona, on official leave

We are not persuaded. RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARIAGES AND
ANNULMENT OF VOIDABLE MARRIAGES
In Jarillo v. People,36 where the accused, in her motion for reconsideration,
argued that since her marriages were entered into before the effectivity of the Section 1. Scope - This Rule shall govern petitions for declaration of absolute
Family Code, then the applicable law is Section 29 of the Marriage Law (Act nullity of void marriages and annulment of voidable marriages under the Family
3613),37 instead of Article 40 of the Family Code, which requires a final judgment Code of te Philippines.
declaring the previous marriage void before a person may contract a subsequent
marriage. We did not find the argument meritorious and said: The Rules of Court shall apply suppletorily.

As far back as 1995, in Atienza v. Brillantes, Jr., the Court already made the Section 2. Petition for declaration of absolute nullity of void marriages.
declaration that Article 40, which is a rule of procedure, should be applied
retroactively because Article 256 of the Family Code itself provides that said (a) Who may file. - A petition for declaration of absolute nullity of void marriage
"Code shall have retroactive effect insofar as it does not prejudice or impair may be filed solely by the husband or the wife. (n)
vested or acquired rights." The Court went on to explain, thus:
(b) Where to file. - The petition shal be filed in the Family Court.
The fact that procedural statutes may somehow affect the litigants' rights may
not preclude their retroactive application to pending actions. The retroactive
(c) Imprecriptibility ofaction or defense. - An Action or defense for the declaration If there is no adequate provision in a written agreement between the
of absolute nullity of void marriage shall not prescribe. parties, the petitioner may apply for a provisional order for spousal support, the
custody and support of common children, visitation rights, administration of
(d) What to allege. - A petition under Article 36 of Family Code shall specially community or conjugal property, and other matters similarly requiringurgent
allege te complete facts showing the either or both parties were psychologically action.
incapacitated from complying with the essential marital obligations of marriages
at the time of the celebration of marriage even if such incapacity becomes (3) It must be verified and accompanied celebration of marriage. (b) Where to
manifest only after its celebration. file.-The petition shall be filed in the Family Court.

The complete facts should allege the physical manifestations, if any, as are Section 4. Venue. - The petition shall be filed in the Family Court of the province
indicative of psychological incapacity at the time of the celebration of the or city where the petitioner or the respondent has been residing for at least six
marriage but expert opinion need not be alleged. months prior to the date of filing, or in the case of a non-resident respondent,
where he may be found in the Philippines at the election of the petitioner.
Section 3. Petition for annulment of voidable marriages. -
Section 5. Contents and form of petition. - (1) The petition shall allege the
(a) Who may file. - The following persons may file a petition for annulment of complete facts constituting the cause of action.
voidable marriage based on any of the grounds under article 45 of the Family
Code and within the period herein indicated: (2) it shall state the names and ages of the common children of the parties and
specify the regime governing their property relations, as well as the properties
(1) The contracting party whose parent, or guardian, or person exercising involved.
substitute parental authority did not give his or her consent, within five years
after attaining the age of twenty-one unless, after attaining the age of twenty- If there is no adequate provision in a written agreement between the
one, such party freely cohabitated with the other as husband or wife; or the parties, the petitioner may apply for a provisional order for spousal support,
parent, guardian or person having legal charge of the contracting party , at any custody and support of common children, visitation rights, administration of
time before such party has reached the age of twenty-one; community or conjugal property, and other matters similarly requiring urgent
action.
(2) The sane spouse who had no knowledge of the other's insanity; or by any
relative, guardian, or person having legal charge of the insane, at any time before (3) it must be verified and accompanied by a certification against forum
the death of either party; or by the insane spouse during the a lucid interval or shopping. The verification and certification must be signed personally by me
after regaining sanity, provided that the petitioner , after coming to reason, has petitioner. No petition may be filed solely by counsel or through an attorney-in-
not freely cohabited with the other as husband or wife; fact.

(3) The injured party whose consent was obtained by fraud, within five years If the petitioner is in a foreign country, the verification and certification
after the discovery of the fraud, provided that said party, with full knowledge of against forum shopping shall be authenticated by the duly authorized officer of
the facts constituting the fraud, has not freely cohabited with the other as the Philippine embassy or legation, consul general, consul or vice-consul or
husband or wife; consular agent in said country.

(4) The injured party whose consent was obtained by force, intimidation, or (4) it shall be filed in six copies. The petitioner shall serve a copy of the petition
undue influence, within five years from the time the force intimidation, or undue on the Office of the Solicitor General and the Office of the City or Provincial
influence disappeared or ceased, provided that the force, intimidation, or undue Prosecutor, within five days from the date of its filing and submit to the court
influence having disappeared or ceased, said party has not thereafter freely proof of such service within the same period.
cohabited with the other as husband or wife;
Failure to comply with any of the preceding requirements may be a ground
(5) The injured party where the other spouse is physically incapable of for immediate dismissal of the petition.
consummating the marriage with the other and such incapability continues and
appears to be incurable, within five years after the celebration of marriage; and Section 6. Summons. - The service of summons shall be governed by Rule 14 of
the Rules of Court and by the following rules:
(6) Te injured party where the other party was afflicted with a sexually-
transmissible disease found to be serious and appears to be incurable, within five (1) Where the respondent cannot be located at his given address or his
years after the celebration of marriage. whereabouts are unknown and cannot be ascertained by diligent inquiry, service
of summons may, by leave of court, be effected upon him by publication once a
(b) Where to file. - The petition shall be filed in the Family Court. week for two consecutive weeks in a newspaper of general circulation in the
Philippines and in such places as the court may order In addition, a copy of the
Section 4. Venue. - The Petition shall be filed in the Family Court of the province summons shall be served on the respondent at his last known address by
or city where the petitioner or the respondent has been residing for at least six registered mail or any other means the court may deem sufficient.
months prior to the date of filing. Or in the case of non-resident respondent,
where he may be found in the Philippines, at the election of the petitioner. (2) The summons to be published shall be contained in an order of the court with
the following data: (a) title of the case; (b) docket number; (c) nature of the
Section 5. Contents and form of petition. - (1) The petition shall allege the petition; (d) principal grounds of the petition and the reliefs prayed for; and (e) a
complete facts constituting the cause of action. directive for the respondent to answer within thirty days from the last issue of
publication.
(2) It shall state the names and ages of the common children of the parties and
specify the regime governing their property relations, as well as the properties Section 7. Motion to dismiss. - No motion to dismiss the petition shall be allowed
involved. except on the ground of lack of jurisdiction over the subject matter or over the
parties; provided, however, that any other ground that might warrant a dismissal
of the case may be raised as an affirmative defense in an answer.
Section 8. Answer. - (1) The respondent shall file his answer within fifteen days (c) Admitted facts and proposed stipulations of facts, as well as the disputed
from service of summons, or within thirty days from the last issue of publication factual and legal issues;
in case of service of summons by publication. The answer must be verified by the
respondent himself and not by counsel or attorney-in-fact. (d) All the evidence to be presented, including expert opinion, if any, briefly
stating or describing the nature and purpose thereof;
(2) If the respondent fails to file an answer, the court shall not declare him or her
in default. (e) The number and names of the witnesses and their respective affidavits; and

(3) Where no answer is filed or if the answer does not tender an issue, the court (f) Such other matters as the court may require.
shall order the public prosecutor to investigate whether collusion exists between
the parties. Failure to file the pre-trial brief or to comply with its required contents shall
have the same effect as failure to appear at the pre-trial under the succeeding
Section 9. Investigation report of public prosecutor. - (1) Within one month after paragraphs.
receipt of the court order mentioned in paragraph (3) of Section 8 above, the
public prosecutor shall submit a report to the court stating whether the parties Section 13. Effect of failure to appear at the pre-trial. - {a) If the petitioner fails to
are in collusion and serve copies thereof on the parties and their respective appear personally, the case shall be dismissed unless his counsel or a duly
counsels, if any. authorized representative appears in court and proves a valid excuse for the non-
appearance of the petitioner.
(2) If the public prosecutor finds that collusion exists, he shall state the on the
finding of collusion within ten days from receipt of a copy of a report The court (b) If the respondent has filed his answer but fails to appear, the court shall
shall set the report for hearing and If convinced that the parties are in collusion, proceed with the pre-trial and require the public prosecutor to investigate the
it shall dismiss the petition. non-appearance of the respondent and submit within fifteen days thereafter a
report to the court stating whether his non-appearance is due to any collusion
(3) If the public prosecutor reports that no collusion exists, the court shall set the between the parties. If there Is no collusion, the court shall require the public
case for pre-trial. It shall be the duty of the public prosecutor to appear for the prosecutor to intervene for the State during the trial on the merits to prevent
State at the pre-trial. suppression or fabrication of evidence.

Section 10. Social worker. - The court may require a social worker to conduct a Section 14. Pre-trial conference. -At the pre-trial conference, the court:
case study and submit the corresponding report at least three days before the
pre-trial. The court may also require a case study at any stage of the case (a) May refer the issues to a mediator who shall assist the parties in reaching an
whenever necessary. agreement on matters not prohibited by law.

Section 11. Pre-trial. - The mediator shall render a report within one month from referral which,
for good reasons, the court may extend for a period not exceeding one month.
(1) Pre-trial mandatory. - A pre-trial is mandatory. On motion or motu
proprio, the court shall set the pre-trial after the last pleading has been served (b) In case mediation is not availed of or where it fails, the court shall proceed
and filed, or upon receipt of the report of the public prosecutor that no collusion with the pre-trial conference, on which occasion it shall consider the advisability
exists between the parties. of receiving expert testimony and such other makers as may aid in the prompt
disposition of the petition.
(2) Notice of pre-trial. - (a) The notice of pre-trial shall contain:
Section 15. Pre-trial order. - {a) The proceedings in the pre-trial shall be recorded.
(1) the date of pre-trial conference; and Upon termination of the pre-trial, the court shall Issue a pre-trial order which
shall recite in detail the matters taken up In the conference, the action taken
(2) an order directing the parties to file and serve their respective pre-trial briefs thereon, the amendments allowed on the pleadings, and except as to the ground
in such manner as shall ensure the receipt thereof by the adverse party at least of declaration of nullity or annulment, the agreements or admissions made by
three days before the date of pre-trial. the parties on any of the matters considered, including any provisional order that
may be necessary or agreed upon by the parties.
(b) The notice shall be served separately on the parties and their respective
counsels as well as on the public prosecutor. It shall be their duty to appear (b) Should the action proceed to trial, the order shall contain a recital of the
personally at the pre-trial. following;

(c) Notice of pre-trial shall be sent to the respondent even if he fails to file an (1) Facts undisputed, admitted, and those which need not be proved subject to
answer. In case of summons by publication and the respondent failed to file his Section 16 of this Rule;
answer, notice of pre-trial shall be sent to respondent at his last known address.
(2) Factual and legal issues to be litigated;
Section 12. Contents of pre-trial brief. - The pre-trial brief shall contain the
following: (3) Evidence, including objects and documents, that have been marked and will
be presented;
(a) A statement of the willingness of the parties to enter into agreements as may
be allowed by law, indicating the desired terms thereof; (4) Names of witnesses who will be presented and their testimonies in the form
of affidavits; and
(b) A concise statement of their respective claims together with the applicable
laws and authorities; (5) Schedule of the presentation of evidence.
(c) The pre-trial order shall also contain a directive to the public prosecutor to (2) The parties, including the Solicitor General and the public prosecutor, shall be
appear for the State and take steps to prevent collusion between the parties at served with copies of the decision personally or by registered mail. If the
any stage of the proceedings and fabrication or suppression of evidence during respondent summoned by publication failed to appear in the action, the
the trial on the merits. dispositive part of the decision shall be published once in a newspaper of general
circulation.
(d) The parlies shall not be allowed to raise issues or present witnesses and
evidence other than those stated in the pre-trial order. (3) The decision becomes final upon the expiration of fifteen days from notice to
the parties. Entry of judgment shall be made if no motion for reconsideration or
The order shall control the trial of the case, unless modified by the court to new trial, or appeal Is filed by any of the parties the public prosecutor, or the
prevent manifest injustice. Solicitor General.

(e) The parties shall have five days from receipt of the pre-trial order to propose (4) Upon the finality of the decision, the court shall forthwith issue the
corrections or modifications. corresponding decree if the parties have no properties.

Section 16. Prohibited compromise. - The court-shall not allow compromise on If the parties have properties, the court shall observe the procedure
prohibited matters, such as the following: prescribed in Section 21 of this Rule.

(a) The civil status of persons; The entry of judgment shall be registered in the Civil Registry where the
marriage was recorded and In the Civil Registry where the Family Court'granting
(b) The validity of a marriage or of a legal separation; the petition for declaration of absolute nullity or annulment of marriage is
located.
(c) Any ground for legal separation;
Section 20. Appeal. -
(d) Future support;
(1) Pre-condition. - No appeal from the decision shall be allowed unless the
(e) The jurisdiction of courts; and appellant has filed a motion for reconsideration or new trial within fifteen days
from notice of judgment.
(f) Future legitime.
(2) Notice of appeal. - An aggrieved party or the Solicitor General may appeal
Section 17. Trial. - (1) The presiding judge shall personally conduct the trial of the from the decision by filing a Notice of Appeal within fifteen days from notice of
case. No delegation of the reception of evidence to a commissioner shall be denial of the motion for reconsideration or new trial. The appellant shall serve a
allowed except as to matters involving property relations of the spouses. copy of the notice of appeal on the adverse parties.

(2) The grounds for declaration of absolute nullity or annulment of marriage must Section 21. Liquidation, partition and distribution, custody, support of common
be proved. No judgment on the pleadings, summary judgment, or confession of children and delivery of their presumptive iegltimes. - Upon entry of the judgment
judgment shall be allowed. granting the petition, or, in case of appeal, upon receipt of the entry of judgment
of the appellate court granting the petition, the Family Court, on motion of either
(3) The court may order the exclusion from the courtroom of all persons, party, shall proceed with the liquidation, partition and distribution of the
including members of the press, who do not have a direct interest in the case. properties of the spouses, including custody, support of common children and
Such an order may be made if the court determines on the record that requiring delivery of their presumptive legitimes pursuant to Articles 50 and 51 of the
a party to testify in open court would not enhance the ascertainment of truth; Family Code unless such matters had been adjudicated in previous judicial
would cause to the party psychological harm or inability to effectively proceedings.
communicate due to embarrassment, fear, or timidity; would violate the right of
a party to privacy; or would be offensive to decency or public morals. Section 22. Issuance of Decree of Declaration of Absolute Nullity or Annulment of
Marriage." (a) The court shall issue the Decree after;
(4) No copy shall be taken nor any examination or perusal of the records of the
case or parts thereof be made by any person other than a party or counsel of a (1) Registration of the entry of judgment granting the petition for declaration of
party, except by order of the court. nullity or annulment of marriage in the Civil Registry where the marriage was
celebrated and in the Civil Registry of the place where the Family Court is
Section 18. Memoranda. - The court may require the parties and the public located;
prosecutor, in consultation with the Office of the Solicitor General, to file their
respective memoranda support of their claims within fifteen days from the date (2) Registration of the approved partition and distribution of the properties of
the trial is terminated. It may require the Office of the Solicitor General to file its the spouses, in the proper Register of Deeds where the real properties are
own memorandum if the case is of significant interest to the State. No other located; and
pleadings or papers may be submitted without leave of court. After the lapse of
the period herein provided, the case will be considered submitted for decision, (3) The delivery of the children's presumptive legitimes in cash, property, or
with or without the memoranda. sound securities.

Section 19. Decision. - (1) If the court renders a decision granting the petition, it (b) The court shall quote in the Decree the dispositive portion of the judgment
shall declare therein that the decree of absolute nullity or decree of annulment entered and attach to the Decree the approved deed of partition.
shall be issued by the court only after compliance with Article 50 and 51 of the
Family Code as implemented under the Rule on Liquidation, Partition and Except in the case of children under Articles 36 and 53 of the Family Code,
Distribution of Properties. the court shall order the Local Civil Registrar to issue an amended birth certificate
indicating the new civil status of the children affected.
Section 23. Registration and publication of the decree; decree as best evidence. -
(a) The prevailing party shall cause the registration of the Decree in the Civil
Registry where the marriage was registered, the Civil Registry of the place where This is a Rule 45 Petition seeking the reversal of the Resolutions dated 23 January
the Family Court is situated, and in the National Census and Statistics Office. He 2009[1] and 3 April 2009[2] issued by the Court of Appeals (CA), which affirmed the
shall report td the court compliance with this requirement within thirty days grant by the Regional Trial Court (RTC) of the Petition for Declaration of
from receipt of the copy of the Decree. Presumptive Death of the absent spouse of respondent.

(b) In case service of summons was made by publication, the parties shall cause In May 1991, respondent Yolanda Cadacio Granada (Yolanda) met Cyrus Granada
the publication of the Decree once in a newspaper of general circulation. (Cyrus) at Sumida Electric Philippines, an electronics
company in Paranaque where both were then working. The two eventually got
(c) The registered Decree shall be the best evidence to prove the declaration of married at the Manila City Hall on 3 March 1993. Their marriage resulted in the
absolute nullity or annulment of marriage and shall serve as notice to third birth of their son, Cyborg Dean Cadacio Granada.
persons concerning the properties of petitioner and respondent as well as the
properties or presumptive legitimes delivered to their common children. Sometime in May 1994, when Sumida Electric Philippines closed down, Cyrus
went to Taiwan to seek employment. Yolanda claimed that from that time, she
Section 24. Effect of death of a party; duty of the Family Court or Appellate had not received any communication from her husband, notwithstanding efforts
Court. - (a) In case a party dies at any stage of the proceedings before the entry to locate him. Her brother testified that he had asked the relatives of Cyrus
of judgment, the court shall order the case closed and terminated, without regarding the latters whereabouts, to no avail.
prejudice to the settlement of the estate in proper proceedings in the regular
courts. After nine (9) years of waiting, Yolanda filed a Petition to have Cyrus declared
presumptively dead. The Petition was raffled to Presiding Judge Avelino Demetria
(b) If the party dies after the entry of judgment of nullity or annulment, the of RTC Branch 85, Lipa City, and was docketed as Sp. Proc. No. 2002-0530.
judgment shall be binding upon the parties and their successors in interest in the
settlement of the estate in the regular courts. On 7 February 2005, the RTC rendered a Decision declaring Cyrus as
presumptively dead.
Section 25. Effectlvity. - This Rule shall take effect on March 15, 2003 following its
publication in a newspaper of general circulation not later than March 7, 2003. On 10 March 2005, petitioner Republic of the Philippines, represented by the
Office of the Solicitor General (OSG), filed a Motion for Reconsideration of this
REPUBLIC OF THE PHILIPPINES, G. R. No. 187512 Decision. Petitioner argued that Yolanda had failed to exert earnest efforts to
locate Cyrus and thus failed to prove her well-founded belief that he was already
Petitioner, dead. However, in an Order dated 29 June 2007, the RTC denied the motion.

Present: Petitioner filed a Notice of Appeal to elevate the case to the CA, presumably
under Rule 41, Section 2(a) of the Rules of Court. Yolanda filed a Motion to
Dismiss on the ground that the CA had no jurisdiction over the appeal. She
argued that her Petition for Declaration of Presumptive Death, based on Article
41 of the Family Code, was a summary judicial proceeding,
CARPIO, J., Chairperson,
in which the judgment is immediately final and executory and, thus, not
- versus - BRION, appealable.

PEREZ,

SERENO, and In its 23 January 2009 Resolution, the appellate court granted Yolandas Motion
to Dismiss on the ground of lack of jurisdiction. Citing Republic v. Bermudez-
REYES, JJ. Lorino,[3] the CA ruled that a petition for declaration of presumptive death under
Rule 41 of the Family Code is a summary proceeding. Thus, judgment thereon is
immediately final and executory upon notice to the parties.

YOLANDA CADACIO GRANADA, Petitioner moved for reconsideration, but its motion was likewise denied by the
CA in a Resolution dated 3 April 2009.[4]
Respondent. Promulgated:
Hence, the present Rule 45 Petition.

Issues
June 13, 2012

x--------------------------------------------------x
1. Whether the CA seriously erred in dismissing the Petition on the
ground that the Decision of the RTC in a summary proceeding for the declaration
of presumptive death is immediately final and executory upon notice to the
DECISION parties and, hence, is not subject to ordinary appeal

SERENO, J.:
2. Whether the CA seriously erred in affirming the RTCs grant of the In Republic v. Bermudez-Lorino,[6] the Republic likewise appealed the CAs
Petition for Declaration of Presumptive Death under Article 41 of the Family Code affirmation of the RTCs grant of respondents Petition for Declaration of
based on the evidence that respondent presented Presumptive Death of her absent spouse. The Court therein held that it was an
error for the Republic to file a Notice of Appeal when the latter elevated the
Our Ruling matter to the CA, to wit:

1. On whether the CA seriously erred in dismissing the Petition on the In Summary Judicial Proceedings under the Family Code, there is no reglementary
ground that the Decision of the RTC in a summary proceeding for the period within which to perfect an appeal, precisely because judgments rendered
declaration of presumptive death is immediately final and executory upon thereunder, by express provision of Section 247, Family Code, supra, are
notice to the parties and, hence, is not subject to ordinary appeal immediately final and executory.

In the assailed Resolution dated 23 January 2009, the CA dismissed the Petition xxx xxx xxx
assailing the RTCs grant of the Petition for Declaration of Presumptive Death of
the absent spouse under Article 41 of the Family Code. Citing Republic v. But, if only to set the records straight and for the future guidance of the bench
Bermudez-Lorino,[5] the appellate court noted that a petition for declaration of and the bar, let it be stated that the RTCs decision dated November 7, 2001, was
presumptive death for the purpose of remarriage is a summary judicial immediately final and executory upon notice to the parties. It was erroneous for
proceeding under the Family Code. Hence, the RTC Decision therein is the OSG to file a notice of appeal, and for the RTC to give due course thereto. The
immediately final and executory upon notice to the parties, by express provision Court of Appeals acquired no jurisdiction over the case, and should have
of Article 247 of the same Code. The decision is therefore not subject to ordinary dismissed the appeal outright on that ground.
appeal, and the attempt to question it through a Notice of Appeal is unavailing.
Justice (later Chief Justice) Artemio Panganiban, who concurred in the result
We affirm the CA ruling. reached by the Court in Republic v. Bermudez-Lorino, additionally opined that
what the OSG should have filed was a petition for certiorari under Rule 65, not a
Article 41 of the Family Code provides: petition for review under Rule 45.

Art. 41. A marriage contracted by any person during the subsistence of a previous In the present case, the Republic argues that Bermudez-Lorino has been
marriage shall be null and void, unless before the celebration of the subsequent superseded by the subsequent Decision of the Court in Republic v.
marriage, the prior spouse had been absent for four consecutive years and the Jomoc,[7] issued a few months later.
spouse present has a well-founded belief that the absent spouse was already
dead. In case of disappearance where there is danger of death under the In Jomoc, the RTC granted respondents Petition for Declaration of Presumptive
circumstances set forth in the provisions of Article 391 of the Civil Code, an Death of her absent husband for the purpose of remarriage. Petitioner Republic
absence of only two years shall be sufficient. appealed the RTC Decision by filing a Notice of Appeal. The trial court
disapproved the Notice of Appeal on the ground that, under
For the purpose of contracting the subsequent marriage under the preceding the Rules of Court,[8] a record on appeal is required to be filed when appealing
paragraph the spouse present must institute a summary proceeding as provided special proceedings cases. The CA affirmed the RTC ruling. In reversing the CA,
in this Code for the declaration of presumptive death of the absentee, without this Court clarified that while an action for declaration of death or absence under
prejudice to the effect of reappearance of the absent spouse. (Underscoring Rule 72, Section 1(m), expressly falls under the category of special proceedings, a
supplied.) petition for declaration of presumptive death under Article 41 of the Family Code
is a summary proceeding, as provided for by Article 238 of the same Code. Since
Clearly, a petition for declaration of presumptive death of an absent spouse for its purpose was to enable her to contract a subsequent valid marriage,
the purpose of contracting a subsequent marriage under Article 41 of the Family petitioners action was a summary proceeding based on Article 41 of the Family
Code is a summary proceeding as provided for under the Family Code. Code, rather than a special proceeding under Rule 72 of the Rules of Court.
Considering that this action was not a special proceeding, petitioner
Further, Title XI of the Family Code is entitled Summary Judicial Proceedings in was not required to file a record on appeal when it appealed the RTC Decision to
the Family Law. Subsumed thereunder are Articles 238 and 247, which provide: the CA.

Art. 238. Until modified by the Supreme Court, the procedural rules in this Title We do not agree with the Republics argument that Republic v. Jomoc superseded
shall apply in all cases provided for in this Code requiring summary court our ruling in Republic v. Bermudez-Lorino. As observed by the CA, the Supreme
proceedings. Such cases shall be decided in an expeditious manner without Court in Jomoc did not expound on the characteristics of a summary proceeding
regard to technical rules. under the Family Code. In contrast, the Court in Bermudez-Lorino expressly
stated that its ruling on the impropriety of an ordinary appeal as a vehicle for
xxx xxx xxx questioning the trial courts Decision in a summary proceeding for declaration of
presumptive death under Article 41 of the Family Code was intended to set the
Art. 247. The judgment of the court shall be immediately final and executory. records straight and for the future guidance of the bench and the bar.

Further, Article 253 of the Family Code reads: At any rate, four years after Jomoc, this Court settled the rule regarding appeal of
judgments rendered in summary proceedings under the Family Code when it
ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern ruled in Republic v. Tango:[9]
summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar
as they are applicable. This case presents an opportunity for us to settle the rule on appeal of judgments
rendered in summary proceedings under the Family Code and accordingly, refine
Taken together, Articles 41, 238, 247 and 253 of the Family Code provide that our previous decisions thereon.
since a petition for declaration of presumptive death is a summary proceeding,
the judgment of the court therein shall be immediately final and executory.
Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS his well-founded belief that the absentee is already dead, as required by Article
IN THE FAMILY LAW, establishes the rules that govern summary court 41 of the Family Code. In ruling thereon, this Court recognized that this provision
proceedings in the Family Code: imposes more stringent requirements than does Article 83 of the Civil
Code.[13] The Civil Code provision merely requires either that there be no news
ART. 238. Until modified by the Supreme Court, the procedural rules in this Title that the absentee is still alive; or that the absentee is generally considered to be
shall apply in all cases provided for in this Code requiring summary court dead and is believed to be so by the spouse present, or is presumed dead under
proceedings. Such cases shall be decided in an expeditious manner without Articles 390 and 391 of the Civil Code. In comparison, the Family Code provision
regard to technical rules. prescribes a well-founded belief that the absentee is already dead before a
petition for declaration of presumptive death can be granted. As noted by the
In turn, Article 253 of the Family Code specifies the cases covered by the rules in Court in that case, the four requisites for the declaration of presumptive death
chapters two and three of the same title. It states: under the Family Code are as follows:

ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern 1. That the absent spouse has been missing for four consecutive years, or two
summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar consecutive years if the disappearance occurred where there is danger of death
as they are applicable. (Emphasis supplied.) under the circumstances laid down in Article 391, Civil Code;

In plain text, Article 247 in Chapter 2 of the same title reads: 2. That the present spouse wishes to remarry;

ART 247. The judgment of the court shall be immediately final and executory. 3. That the present spouse has a well-founded belief that the absentee is dead;
and
By express provision of law, the judgment of the court in a summary proceeding
shall be immediately final and executory. As a matter of course, it follows that no 4. That the present spouse files a summary proceeding for the declaration of
appeal can be had of the trial court's judgment in a summary proceeding for the presumptive death of the absentee.
declaration of presumptive death of an absent spouse under Article 41 of the
Family Code. It goes without saying, however, that an aggrieved party may file a In evaluating whether the present spouse has been able to prove the existence of
petition for certiorari to question abuse of discretion amounting to lack of a well-founded belief that the absent spouse is already dead, the Court
jurisdiction. Such petition should be filed in the Court of Appeals in accordance in Nolasco cited United States v. Biasbas,[14] which it found to be instructive as to
with the Doctrine of Hierarchy of Courts. To be sure, even if the Court's original the diligence required in searching for a missing spouse.
jurisdiction to issue a writ of certiorari is concurrent with the RTCs and the Court
of Appeals in certain cases, such concurrence does not sanction an unrestricted In Biasbas, the Court held that defendant Biasbas failed to exercise due diligence
freedom of choice of court forum. From the decision of the Court of Appeals, the in ascertaining the whereabouts of his first wife, considering his admission that
losing party may then file a petition for review on certiorari under Rule 45 of the that he only had a suspicion that she was dead, and that the only basis of that
Rules of Court with the Supreme Court. This is because the errors which the court suspicion was the fact of her absence.
may commit in the exercise of jurisdiction are merely errors of judgment which
are the proper subject of an appeal. Similarly, in Republic v. Court of Appeals and Alegro, petitioner Republic sought
the reversal of the CA ruling affirming the RTCs grant of the Petition for
In sum, under Article 41 of the Family Code, the losing party in a summary Declaration of Presumptive Death of the absent spouse on the ground that the
proceeding for the declaration of presumptive death may file a petition for respondent therein had not been able to prove a well-founded belief that his
certiorari with the CA on the ground that, in rendering judgment thereon, the spouse was already dead. The Court reversed the CA, granted the Petition, and
trial court committed grave abuse of discretion amounting to lack of jurisdiction. provided the following criteria for determining the existence of a well-founded
From the decision of the CA, the aggrieved party may elevate the matter to this belief under Article 41 of the Family Code:
Court via a petition for review on certiorari under Rule 45 of the Rules of Court.
For the purpose of contracting the subsequent marriage under the preceding
Evidently then, the CA did not commit any error in dismissing the Republics paragraph, the spouse present must institute a summary proceeding as provided
Notice of Appeal on the ground that the RTC judgment on the Petition for in this Code for the declaration of presumptive death of the absentee, without
Declaration of Presumptive Death of respondents spouse was immediately final prejudice to the effect of reappearance of the absent spouse.
and executory and, hence, not subject to ordinary appeal.
The spouse present is, thus, burdened to prove that his spouse has been absent
2. On whether the CA seriously erred in affirming the RTCs grant of the and that he has a well-founded belief that the absent spouse is already dead
Petition for Declaration of Presumptive Death under Article 41 of the Family before the present spouse may contract a subsequent marriage. The law does
Code based on the evidence that respondent had presented not define what is meant by a well-grounded belief. Cuello Callon writes that es
menester que su creencia sea firme se funde en motivos racionales.
Petitioner also assails the RTCs grant of the Petition for Declaration of
Presumptive Death of the absent spouse of respondent on the ground that she Belief is a state of the mind or condition prompting the doing of an overt act. It
had not adduced the evidence required to establish a well-founded belief that may be proved by direct evidence or circumstantial evidence which may tend,
her absent spouse was already dead, as expressly required by Article 41 of the even in a slight degree, to elucidate the inquiry or assist to a determination
Family Code. Petitioner cites Republic v. Nolasco,[10] United States v. probably founded in truth. Any fact or circumstance relating to the character,
Biasbas[11] and Republic v. Court of Appeals and Alegro[12] as authorities on the habits, conditions, attachments, prosperity and objects of life which usually
subject. control the conduct of men, and are the motives of their actions, was, so far as it
tends to explain or characterize their disappearance or throw light on their
In Nolasco, petitioner Republic sought the reversal of the CAs affirmation of the intentions, competence [sic] evidence on the ultimate question of his death.
RTCs grant of respondents Petition for Declaration of Presumptive Death of his
absent spouse, a British subject who left their home in the Philippines soon after The belief of the present spouse must be the result of proper and honest to
giving birth to their son while respondent was on board a vessel working as a goodness inquiries and efforts to ascertain the whereabouts of the absent spouse
seafarer. Petitioner Republic sought the reversal of the ruling on the ground that and whether the absent spouse is still alive or is already dead. Whether or not
respondent was not able to establish the spouse present acted on a well-founded belief of
death of the absent spouse depends upon the inquiries to be drawn from a great On May 21, 2002, or more than four (4) years from the time of Jerry’s
many circumstances occurring before and after the disappearance of the absent disappearance, the respondent filed before the RTC a petition4for her husband’s
spouse and the nature and extent of the inquiries made by present spouse. declaration of presumptive death, docketed as SP Proc. Case No. 313-25. She
(Footnotes omitted, underscoring supplied.) claimed that she had a well-founded belief that Jerry was already dead. She
alleged that she had inquired from her mother-in-law, her brothers-in-law, her
Applying the foregoing standards to the present case, petitioner points out that sisters-in-law, as well as her neighbors and friends, but to no avail. In the hopes
respondent Yolanda did not initiate a diligent search to locate her absent of finding Jerry, she also allegedly made it a point to check the patients’ directory
husband. While her brother Diosdado Cadacio testified to having inquired about whenever she went to a hospital. All these earnest efforts, the respondent
the whereabouts of Cyrus from the latters relatives, these relatives were not claimed, proved futile, prompting her to file the petition in court.
presented to corroborate Diosdados testimony. In short, respondent was
allegedly not diligent in her search for her husband. Petitioner argues that if she The Ruling of the RTC
were, she would have sought information from the Taiwanese Consular Office or
assistance from other government agencies in Taiwan or the Philippines. She After due proceedings, the RTC issued an order granting the respondent’s
could have also utilized mass media for this end, but she did not. Worse, she petition and declaring Jerry presumptively dead. It concluded that the
failed to explain these omissions. respondent had a well-founded belief that her husband was already dead since
more than four (4) years had passed without the former receiving any news
The Republics arguments are well-taken. Nevertheless, we are constrained to about the latter or his whereabouts. The dispositive portion of the order dated
deny the Petition. December 15, 2006 reads:

The RTC ruling on the issue of whether respondent was able to prove her well- WHEREFORE, the Court hereby declares, as it hereby declared that respondent
founded belief that her absent spouse was already dead prior to her filing of the Jerry F. Cantor is presumptively dead pursuant to Article 41 of the Family Code of
Petition to declare him presumptively dead is already final and can no longer be the Philippines without prejudice to the effect of the reappearance of the absent
modified or reversed. Indeed, [n]othing is more settled in law than that when a spouse Jerry F. Cantor.5
judgment becomes final and executory, it becomes immutable and unalterable.
The same may no longer be modified in any respect, even if the modification is The Ruling of the CA
meant to correct what is perceived to be an erroneous conclusion of fact or
law.[15] The case reached the CA through a petition for certiorari6filed by the petitioner,
Republic of the Philippines, through the Office of the Solicitor General (OSG). In
WHEREFORE, premises considered, the assailed Resolutions of the Court of its August 27, 2008 decision, the CA dismissed the petitioner’s petition, finding
Appeals dated 23 January 2009 and 3 April 2009 in CA-G.R. CV No. 90165 no grave abuse of discretion on the RTC’s part, and, accordingly, fully affirmed
are AFFIRMED. the latter’s order, thus:

SO ORDERED. WHEREFORE, premises foregoing (sic), the instant petition is hereby DISMISSED
and the assailed Order dated December 15, 2006 declaring Jerry F. Cantor
presumptively dead is hereby AFFIRMED in toto.7

G.R. No. 184621 December 10, 2013 The petitioner brought the matter via a Rule 45 petition before this Court. The
Petition The petitioner contends that certiorari lies to challenge the decisions,
REPUBLIC OF THE PHILIPPINES, Petitioner, judgments or final orders of trial courts in petitions for declaration of
vs. presumptive death of an absent spouse under Rule 41 of the Family Code. It
MARIA FE ESPINOSA CANTOR, Respondent. maintains that although judgments of trial courts in summary judicial
proceedings, including presumptive death cases, are deemed immediately final
DECISION and executory (hence, not appeal able under Article 247 of the Family Code), this
rule does not mean that they are not subject to review on certiorari.
BRION, J.:
The petitioner also posits that the respondent did not have a well-founded belief
The petition for review on certiorari1 before us assails the decision2 dated August to justify the declaration of her husband’s presumptive death. It claims that the
27, 2008 of the Court of Appeals (CA) in CA-G.R. SP No. 01558-MIN which respondent failed to conduct the requisite diligent search for her missing
affirmed be order3 dated December 15, 2006 of the Regional Trial Court (RTC), husband. Likewise, the petitioner invites this Court’s attention to the attendant
Branch 25, Koronadal City, South Cotabato, in SP Proc. Case No. 313-25, declaring circumstances surrounding the case, particularly, the degree of search conducted
Jerry F. Cantor, respondent Maria Fe Espinosa Cantor’s husband, presumptively and the respondent’s resultant failure to meet the strict standard under Article
dead under Article 41 of the Family Code. 41 of the Family Code.

The Factual Antecedents The Issues

The respondent and Jerry were married on September 20, 1997. They lived The petition poses to us the following issues:
together as husband and wife in their conjugal dwelling in Agan Homes,
Koronadal City, South Cotabato. Sometime in January 1998, the couple had a (1) Whether certiorarilies to challenge the decisions, judgments or final orders of
violent quarrel brought about by: (1) the respondent’s inability to reach "sexual trial courts in petitions for declaration of presumptive death of an absent spouse
climax" whenever she and Jerry would have intimate moments; and (2) Jerry’s under Article 41 of the Family Code; and
expression of animosity toward the respondent’s father.
(2) Whether the respondent had a well-founded belief that Jerry is already dead.
After their quarrel, Jerry left their conjugal dwelling and this was the last time
that the respondent ever saw him. Since then, she had not seen, communicated The Court’s Ruling
nor heard anything from Jerry or about his whereabouts.
We grant the petition.
a. On the Issue of the Propriety of Certiorari as a Remedy under Rule 65 of the Rules of Court to question any abuse of discretion
amounting to lack or excess of jurisdiction that transpired.
Court’s Judgment in the Judicial
Proceedings for Declaration of As held in Delos Santos v. Rodriguez, et al.,10 the fact that a decision has become
Presumptive Death Is Final and final does not automatically negate the original action of the CA to issue
Executory, Hence, Unappealable certiorari, prohibition and mandamus in connection with orders or processes
issued by the trial court. Certiorari may be availed of where a court has acted
The Family Code was explicit that the court’s judgment in summary proceedings, without or in excess of jurisdiction or with grave abuse of discretion, and where
such as the declaration of presumptive death of an absent spouse under Article the ordinary remedy of appeal is not available. Such a procedure finds support in
41 of the Family Code, shall be immediately final and executory. the case of Republic v. Tango,11 wherein we held that:

Article 41,in relation to Article 247, of the Family Code provides: This case presents an opportunity for us to settle the rule on appeal of judgments
rendered in summary proceedings under the Family Code and accordingly, refine
Art. 41. A marriage contracted by any person during subsistence of a previous our previous decisions thereon.
marriage shall be null and void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four consecutive years and the Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS
spouse present has a well-founded belief that the absent spouse was already IN THE FAMILY LAW, establishes the rules that govern summary court
dead. In case of disappearance where there is danger of death under the proceedings in the Family Code:
circumstances set forth in the provisions of Article 391 of the Civil Code, an
absence of only two years shall be sufficient. "ART. 238. Until modified by the Supreme Court, the procedural rules in this Title
shall apply in all cases provided for in this Code requiring summary court
For the purpose of contracting the subsequent marriage under the preceding proceedings. Such cases shall be decided in an expeditious manner without
paragraph the spouse present must institute a summary proceeding as provided regard to technical rules."
in this Code for the declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse. In turn, Article 253 of the Family Code specifies the cases covered by the rules in
chapters two and three of the same title. It states:
Art. 247. The judgment of the court shall be immediately final and executory.
[underscores ours] "ART. 253. The foregoing rules in Chapters 2and 3 hereof shall likewise govern
summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar
With the judgment being final, it necessarily follows that it is no longer subject to as they are applicable."(Emphasis supplied.)
an appeal, the dispositions and conclusions therein having become immutable
and unalterable not only as against the parties but even as against the In plain text, Article 247 in Chapter 2 of the same title reads:
courts.8 Modification of the court’s ruling, no matter how erroneous is no longer
permissible. The final and executory nature of this summary proceeding thus "ART.247. The judgment of the court shall be immediately final and executory."
prohibits the resort to appeal. As explained in Republic of the Phils. v. Bermudez-
Lorino,9 the right to appeal is not granted to parties because of the express By express provision of law, the judgment of the court in a summary proceeding
mandate of Article 247 of the Family Code, to wit: shall be immediately final and executory. As a matter of course, it follows that no
appeal can be had of the trial court's judgment ina summary proceeding for the
In Summary Judicial Proceedings under the Family Code, there is no reglementary declaration of presumptive death of an absent spouse under Article 41 of the
period within which to perfect an appeal, precisely because judgments rendered Family Code. It goes without saying, however, that an aggrieved party may file a
thereunder, by express provision of [Article] 247, Family Code, supra, are petition for certiorari to question abuse of discretion amounting to lack of
"immediately final and executory." It was erroneous, therefore, on the part of jurisdiction. Such petition should be filed in the Court of Appeals in accordance
the RTCto give due course to the Republic’s appeal and order the transmittal of with the Doctrine of Hierarchy of Courts. To be sure, even if the Court's original
the entire records of the case to the Court of Appeals. jurisdiction to issue a writ of certiorari is concurrent with the RTCs and the Court
of Appeals in certain cases, such concurrence does not sanction an unrestricted
An appellate court acquires no jurisdiction to review a judgment which, by freedom of choice of court forum. [emphasis ours]
express provision of law, is immediately final and executory. As we have said
in Veloria vs. Comelec, "the right to appeal is not a natural right nor is it a part of Viewed in this light, we find that the petitioner’s resort to certiorari under Rule
due process, for it is merely a statutory privilege." Since, by express mandate of 65 of the Rules of Court to question the RTC’s order declaring Jerry presumptively
Article 247 of the Family Code, all judgments rendered in summary judicial dead was proper.
proceedings in Family Law are "immediately final and executory," the right to
appeal was not granted to any of the parties therein. The Republic of the b. On the Issue of the Existence of Well-Founded Belief
Philippines, as oppositor in the petition for declaration of presumptive death,
should not be treated differently. It had no right to appeal the RTC decision of The Essential Requisites for the
November 7, 2001. [emphases ours; italics supplied] Declaration of Presumptive Death
Under Article 41 of the Family Code
Certiorari Lies to Challenge the
Decisions, Judgments or Final Before a judicial declaration of presumptive death can be obtained, it must be
Orders of Trial Courts in a Summary shown that the prior spouse had been absent for four consecutive years and the
Proceeding for the Declaration of Presumptive present spouse had a well-founded belief that the prior spouse was already dead.
Death Under the Family Code Under Article 41 of the Family Code, there are four (4) essential requisites for the
declaration of presumptive death:
A losing party in this proceeding, however, is not entirely left without a remedy.
While jurisprudence tells us that no appeal can be made from the trial court's 1. That the absent spouse has been missing for four consecutive years, or two
judgment, an aggrieved party may, nevertheless, file a petition for certiorari consecutive years if the disappearance occurred where there is danger of death
under the circumstances laid down in Article 391, Civil Code;
2. That the present spouse wishes to remarry; i. Republic of the Philippines v. Court of Appeals (Tenth Div.)16

3. That the present spouse has a well-founded belief that the absentee is dead; In Republic of the Philippines v. Court of Appeals (Tenth Div.),17 the Court ruled
and that the present spouse failed to prove that he had a well-founded belief that his
absent spouse was already dead before he filed his petition. His efforts to locate
4. That the present spouse files a summary proceeding for the declaration of his absent wife allegedly consisted of the following:
presumptive death of the absentee.12
(1) He went to his in-laws’ house to look for her;
The Present Spouse Has the Burden
of Proof to Show that All the (2) He sought the barangay captain’s aid to locate her;
Requisites Under Article 41 of the
Family Code Are Present (3) He went to her friends’ houses to find her and inquired about her
whereabouts among his friends;
The burden of proof rests on the present spouse to show that all the requisites
under Article 41 of the Family Code are present. Since it is the present spouse (4) He went to Manila and worked as a part-time taxi driver to look for her in
who, for purposes of declaration of presumptive death, substantially asserts the malls during his free time;
affirmative of the issue, it stands to reason that the burden of proof lies with
him/her. He who alleges a fact has the burden of proving it and mere allegation is (5) He went back to Catbalogan and again looked for her; and
not evidence.13
(6) He reported her disappearance to the local police station and to the NBI.
Declaration of Presumptive Death
Under Article 41 of the Family Code Despite these alleged "earnest efforts," the Court still ruled against the present
Imposes a Stricter Standard spouse. The Court found that he failed to present the persons from whom he
allegedly made inquiries and only reported his wife’s absence after the OSG filed
Notably, Article 41 of the Family Code, compared to the old provision of the Civil its notice to dismiss his petition in the RTC.
Code which it superseded, imposes a stricter standard. It requires a "well-
founded belief " that the absentee is already dead before a petition for The Court also provided the following criteria for determining the existence of a
declaration of presumptive death can be granted. We have had occasion to make "well-founded belief" under Article 41 of the Family Code:
the same observation in Republic v. Nolasco,14 where we noted the crucial
differences between Article 41 of the Family Code and Article 83 of the Civil The belief of the present spouse must be the result of proper and honest to
Code, to wit: goodness inquiries and efforts to ascertain the whereabouts of the absent spouse
and whether the absent spouse is still alive or is already dead. Whether or not
Under Article 41, the time required for the presumption to arise has been the spouse present acted on a well-founded belief of death of the absent spouse
shortened to four (4) years; however, there is need for a judicial declaration of depends upon the inquiries to be drawn from a great many circumstances
presumptive death to enable the spouse present to remarry. Also, Article 41 of occurring before and after the disappearance of the absent spouse and the
the Family Code imposes a stricter standard than the Civil Code: Article 83 of the nature and extent of the inquiries made by [the] present spouse.18
Civil Code merely requires either that there be no news that such absentee is still
alive; or the absentee is generally considered to be dead and believed to be so by ii. Republic v. Granada19
the spouse present, or is presumed dead under Articles 390 and 391 of the Civil
Code. The Family Code, upon the other hand, prescribes as "well founded belief" Similarly in Granada, the Court ruled that the absent spouse failed to prove her
that the absentee is already dead before a petition for declaration of "well-founded belief" that her absent spouse was already dead prior to her filing
presumptive death can be granted. of the petition. In this case, the present spouse alleged that her brother had
made inquiries from their relatives regarding the absent spouse’s whereabouts.
Thus, mere absence of the spouse (even for such period required by the law), The present spouse did not report to the police nor seek the aid of the mass
lack of any news that such absentee is still alive, failure to communicate or media. Applying the standards in Republic of the Philippines v. Court of Appeals
general presumption of absence under the Civil Code would not suffice. This (Tenth Div.),20 the Court ruled against the present spouse, as follows:
conclusion proceeds from the premise that Article 41 of the Family Code places
upon the present spouse the burden of proving the additional and more stringent Applying the foregoing standards to the present case, petitioner points out that
requirement of "well-founded belief" which can only be discharged upon a respondent Yolanda did not initiate a diligent search to locate her absent
showing of proper and honest-to-goodness inquiries and efforts to ascertain not husband. While her brother Diosdado Cadacio testified to having inquiredabout
only the absent spouse’s whereabouts but, more importantly, that the absent the whereabouts of Cyrus from the latter’s relatives, these relatives were not
spouse is still alive or is already dead.15 presented to corroborate Diosdado’s testimony. In short, respondent was
allegedly not diligent in her search for her husband. Petitioner argues that if she
The Requirement of Well-Founded Belief were, she would have sought information from the Taiwanese Consular Office or
assistance from other government agencies in Taiwan or the Philippines. She
The law did not define what is meant by "well-founded belief." It depends upon could have also utilized mass media for this end, but she did not. Worse, she
the circumstances of each particular case. Its determination, so to speak, remains failed to explain these omissions.
on a case-to-case basis. To be able to comply with this requirement, the present
spouse must prove that his/her belief was the result of diligent and reasonable iii.Republic v. Nolasco21
efforts and inquiries to locate the absent spouse and that based on these efforts
and inquiries, he/she believes that under the circumstances, the absent spouseis In Nolasco, the present spouse filed a petition for declaration of presumptive
already dead. It requires exertion of active effort (not a mere passive one). death of his wife, who had been missing for more than four years. He testified
that his efforts to find her consisted of:
To illustrate this degree of "diligent and reasonable search" required by the law,
an analysis of the following relevant cases is warranted: (1) Searching for her whenever his ship docked in England;
(2) Sending her letters which were all returned to him; and circumvent the laws. Courts should never allow procedural shortcuts and should
ensure that the stricter standard required by the Family Code is met. In Republic
(3) Inquiring from their friends regarding her whereabouts, which all proved of the Philippines v. Court of Appeals (Tenth Div.),23 we emphasized that:
fruitless. The Court ruled that the present spouse’s investigations were too
sketchy to form a basis that his wife was already dead and ruled that the pieces In view of the summary nature of proceedings under Article 41 of the Family
of evidence only proved that his wife had chosen not to communicate with their Code for the declaration of presumptive death of one’s spouse, the degree of
common acquaintances, and not that she was dead. due diligence set by this Honorable Court in the above-mentioned cases in
locating the whereabouts of a missing spouse must be strictly complied with.
iv.The present case There have been times when Article 41 of the Family Code had been resorted to
by parties wishing to remarry knowing fully well that their alleged missing
In the case at bar, the respondent’s "well-founded belief" was anchored on her spouses are alive and well. It is even possible that those who cannot have their
alleged "earnest efforts" to locate Jerry, which consisted of the following: marriages xxx declared null and void under Article 36 of the Family Code resort to
Article 41 of the Family Code for relief because of the xxx summary nature of its
(1) She made inquiries about Jerry’s whereabouts from her in-laws, neighbors proceedings.
and friends; and
The application of this stricter standard becomes even more imperative if we
(2) Whenever she went to a hospital, she saw to it that she looked through the consider the State’s policy to protect and strengthen the institution of
patients’ directory, hoping to find Jerry. marriage.24 Since marriage serves as the family’s foundation25 and since it is the
state’s policy to protect and strengthen the family as a basic social
These efforts, however, fell short of the "stringent standard" and degree of institution,26 marriage should not be permitted to be dissolved at the whim of the
diligence required by jurisprudence for the following reasons: parties. In interpreting and applying Article 41, this is the underlying rationale –to
uphold the sanctity of marriage. Arroyo, Jr.v. Court of Appeals27 reflected this
First, the respondent did not actively look for her missing husband.1âwphi1 It can sentiment when we stressed:
be inferred from the records that her hospital visits and her consequent checking
of the patients’ directory therein were unintentional. She did not purposely [The]protection of the basic social institutions of marriage and the family in the
undertake a diligent search for her husband as her hospital visits were not preservation of which the State has the strongest interest; the public policy here
planned nor primarily directed to look for him. This Court thus considers these involved is of the most fundamental kind. In Article II, Section 12 of the
attempts insufficient to engender a belief that her husband is dead. Constitution there is set forth the following basic state policy:

Second, she did not report Jerry’s absence to the police nor did she seek the aid The State recognizes the sanctity of family life and shall protect and strengthen
of the authorities to look for him. While a finding of well-founded belief varies the family as a basic autonomous social institution.
with the nature of the situation in which the present spouse is placed, under
present conditions, we find it proper and prudent for a present spouse, whose Strict Standard Prescribed Under
spouse had been missing, to seek the aid of the authorities or, at the very least, Article 41 of the Family Code
report his/her absence to the police. Is for the Present Spouse’s Benefit

Third, she did not present as witnesses Jerry’s relatives or their neighbors and The requisite judicial declaration of presumptive death of the absent spouse (and
friends, who can corroborate her efforts to locate Jerry. Worse, these persons, consequently, the application of a stringent standard for its issuance) is also for
from whom she allegedly made inquiries, were not even named. As held in the present spouse's benefit. It is intended to protect him/her from a criminal
Nolasco, the present spouse’s bare assertion that he inquired from his friends prosecution of bigamy under Article 349 of the Revised Penal Code which might
about his absent spouse’s whereabouts is insufficient as the names of the friends come into play if he/she would prematurely remarry sans the court's declaration.
from whom he made inquiries were not identified in the testimony nor presented
as witnesses. Upon the issuance of the decision declaring his/her absent spouse presumptively
dead, the present spouse's good faith in contracting a second marriage is
Lastly, there was no other corroborative evidence to support the respondent’s effectively established. The decision of the competent court constitutes sufficient
claim that she conducted a diligent search. Neither was there supporting proof of his/her good faith and his/her criminal intent in case of remarriage is
evidence proving that she had a well-founded belief other than her bare claims effectively negated.28 Thus, for purposes of remarriage, it is necessary to strictly
that she inquired from her friends and in-laws about her husband’s whereabouts. comply with the stringent standard and have the absent spouse judicially
In sum, the Court is of the view that the respondent merely engaged in a "passive declared presumptively dead.
search" where she relied on uncorroborated inquiries from her in-laws,
neighbors and friends. She failed to conduct a diligent search because her alleged Final Word
efforts are insufficient to form a well-founded belief that her husband was
already dead. As held in Republic of the Philippines v. Court of Appeals (Tenth As a final word, it has not escaped this Court's attention that the strict standard
Div.),22 "[w]hether or not the spouse present acted on a well-founded belief of required in petitions for declaration of presumptive death has not been fully
death of the absent spouse depends upon the inquiries to be drawn from a great observed by the lower courts. We need only to cite the instances when this
many circumstances occurring before and after the disappearance of the absent Court, on review, has consistently ruled on the sanctity of marriage and
spouse and the natureand extent of the inquiries made by [the] present spouse." reiterated that anything less than the use of the strict standard necessitates a
denial. To rectify this situation, lower courts are now expressly put on notice of
Strict Standard Approach Is the strict standard this Court requires in cases under Article 41 of the Family
Consistent with the State’s Policy Code.
to Protect and Strengthen Marriage
WHEREFORE, in view of the foregoing, the assailed decision dated August 27,
In the above-cited cases, the Court, fully aware of the possible collusion of 2008 of the Court of Appeals, which affirmed the order dated December 15, 2006
spouses in nullifying their marriage, has consistently applied the "strictstandard" of the Regional Trial Court, Branch 25, Koronadal City, South Cotabato, declaring
approach. This is to ensure that a petition for declaration of presumptive death Jerry F. Cantor presumptively dead is hereby REVERSED and SET ASIDE.
under Article 41 of the Family Code is not used as a tool to conveniently
SO ORDERED. circumstances set forth in the provisions of Article 391 of the Civil Code, an
absence of only two years shall be sufficient.
G.R. No. 210929 July 29, 2015
For the purpose of contracting the subsequent marriage under the preceding
REPUBLIC OF THE PHILIPPINES, Petitioner, paragraph the spouse present must institute a summary proceeding as provided
vs. in this Code for the declaration of presumptive death of the absentee, without
EDNA ORCELINO-VILLANUEVA, Respondent. prejudice to the effect of reappearance of the absent spouse.

DISSENTING OPINION Article 41’s requirement of a "well-grounded belief" calls for an inquiry into a
spouse’s state of mind.5 Otherwise abstract, one’s state of mind can only be
LEONEN, J.: ascertained through overt acts. Article 41 requires this belief to be "well-
grounded." It therefore requires nothing more than for a spouse to have a
Edna Orcelino-Villanueva (Edna) was a domestic helper based in Singapore. In "reasonable basis for holding to such belief."6 Article 41 relies on a basic and
1993, she came home immediately after she heard news from her children that plain test: rationality.7
her husband, Romeo L. Villanueva (Romeo), left their conjugal dwelling. She
came home, leaving her work, for the purpose of looking for her husband and What is rational in each case depends on context. Rationality is not determined
taking care of her children. She had limited resources for her search. by the blanket imposition of pre-conceived standards. Rather, it is better
determined by an appreciation of a person’s unique circumstances.8
For 15 or 16 years, she endured the absence of her husband. Within those long
years, whether in good times or bad, she never heard from him. He did not Moreover, all that Article 41 calls to sustain is a presumption. By definition, there
discharge any of his duties as husband. is no need for absolute certainty. A presumption is, by nature, favorable to a
party and dispenses with the burden of proving. Consequently, neither is there a
In ruling against her and concluding that she did not search hard enough for need for conduct that establishes such a high degree of cognizance that what is
Romeo, the majority fails to appreciate several crucial facts: established is proof, and no longer a presumption:

First, Edna turned away from her livelihood, her modest means of subsistence, In declaring a person presumptively dead, a court is called upon to sustain a
just to search for Romeo. presumption, it is not called upon to conclude on verity or to establish actuality.
In so doing, a court infers despite an acknowledged uncertainty. Thus, to insist on
Second, Edna did not only embark on a token search. She did not limit herself to such demanding and extracting evidence to "show enough proof of a well-
her parents-in-law and to common friends in Iligan City, the . place where she founded belief", is to insist on an inordinate and intemperate standard.9
and Romeo were married. Edna went all the way to Romeo's birthplace, which
was Escalante, Negros Oriental. There, she inquired from Romeo's relatives as to It is improper for the majority to insist upon the same "strict standard
his whereabouts. approach"10 that was relied on in Cantor and conclude that Edna’s efforts "were
not diligent and serious enough."11 The majority fails to appreciate several crucial
Third, 15 or 16 years had passed since Edna was told that Romeo had gone facts in this case that define the limits of her situation.
missing when she filed her Petition to declare Romeo presumptively dead. If
Edna merely intended to use a petition for declaration of presumptive death as a Edna’s lack of resources appears in the records. She only had the ability to
convenient means for circumventing laws that protect the institution of present herself as witness.
marriage, it is astounding that she would await the inconvenience of 15 or 16
years. Concededly, Edna could have engaged in other efforts—asking for the help of
police officers, filing a formal missing-person report, announcing Romeo’s
Edna established a well-founded belief that her husband, Romeo, is already dead. absence in radio or television programs—as would show how painstakingly she
endeavored to search for Romeo. Insisting on Edna to have also made these
I vote to sustain the assailed October 18, 2013 Decision1 and January 8, 2014 efforts, however, is to insist that she act in an ideal manner. It takes her away
Resolution2 of the Court of Appeals in CA-G.R. SP No. 03768-MIN, affirming the from her own reality and requires her to fulfill pre-conceived notions of what
October 8, 2009 Judgment3 of the Regional Trial Court, Branch 10, Malaybalay satisfies notice. It fails to appreciate the merit of the lengths she actually went
City, Bukidnon, declaring Romeo presumptively dead pursuant to Article 41 of through to search for Romeo.
the Family Code.
Unless Edna had the ability to gain access to radio or television programs with
I reiterate the position I articulated in my dissent to Republic of the Philippines v. nationwide coverage or ensure that her notices were posted in all precincts, then
Cantor.4 I maintain that a strict standard should not be used in evaluating the requiring this type of search would have been futile and economically wasteful. If
efforts made by a spouse to ascertain the status and whereabouts of an absent we are to lend truth to the concept of social justice, we have to make judgments
spouse. The marital obligations provided for by the Family Code require the based on her context. To reiterate, she is one of the millions who had to go
continuing presence of each spouse. A spouse is well to suppose that this shall be abroad to earn a more prosperous life for herself and her children. She had to cut
resolutely fulfilled by the other spouse. Failure to do so for the period established short her employment to come home and make an honest search for her
by law gives rise to the presumption that the absent spouse is dead, thereby husband. To require her to squander more time and money to reach media and
enabling the spouse present to remarry. the police would have been economically expensive for her. The law should be
interpreted in the context of reality—and ours is different from Edna’s.
Article 41 of the Family Code provides:
Edna was an abandoned wife whose husband was missing for 15 or 16 years. Her
Art. 41. A marriage contracted by any person during subsistence of a previous search for Romeo began more than two decades ago in a province in Mindanao,
marriage shall be null and void, unless before the celebration of the subsequent far removed from this nation’s capital. She was an overseas Filipino worker, a
marriage, the prior spouse had been absent for four consecutive years and the domestic helper, who was compelled to return to the Philippines to tend to a
spouse present has a well-founded belief that the absent spouse was already missing husband. Twenty-two years ago, when she embarked on her search, she
dead. In case of disappearance where there is danger of death under the could not have been aided by the convenience of ready access to communication
networks. To go to her husband’s birthplace and inquire from his relatives, she
could not have merely boarded an hour-long flight; she must have endured marriage at the instance of any interested person, with due notice to the spouses
hours, even days at sea. It is in light of these human realities that Edna’s efforts of the subsequent marriage and without prejudice to the fact of reappearance
must be appreciated. being judicially determined in case such fact is disputed. Moreover, in Santos v.
Santos,14 we recognized that in cases where a declaration of presumptive death
This court must realize that insisting upon an ideal will never yield satisfactory was fraudulently obtained, the subsequent marriage shall not only be
results. A stringent evaluation of a party’s efforts made out of context will always terminated, but all other effects of the declaration nullified by a successful
reveal means through which a spouse could have ‘done more’ or walked the petition for annulment of judgment:
proverbial extra mile to ascertain his or her spouse’s whereabouts. A reason
could always be conceived for concluding that a spouse did not try ‘hard enough.’ The proper remedy for a judicial declaration of presumptive death obtained by
extrinsic fraud is an action to annul the judgment. An affidavit of reappearance is
So, too, insisting on Edna’s perceived shortcomings unjustly puts the blame on not the proper remedy when the person declared presumptively dead has never
her and undermines the shortcoming that Romeo himself committed. All marital been absent.
obligations recognized in the Family Code are predicated upon each spouse’s
presence. The primordial marital obligation is "to live together, observe mutual ....
love, respect and fidelity, and render mutual help and support."12 As I explained
in my dissent in Cantor: Therefore, for the purpose of not only terminating the subsequent marriage but
also of nullifying the effects of the declaration of presumptive death and the
The opinions of a recognized authority in civil law, Arturo M. Tolentino, are subsequent marriage, mere filing of an affidavit of reappearance would not
particularly enlightening: suffice.15

Meaning of "Absent" Spouse.– The provisions of this article are of American The majority is gripped with the apprehension that a petition for declaration of
origin, and must be construed in the light of American jurisprudence. An identical presumptive death may be availed of as a dangerous expedient. Nothing, in this
provision (except for the period) exists in the California civil code (section 61); case, sustains fear. A misplaced anxiety is all that there is. As things stand, Edna
California jurisprudence should, therefore, prove enlightening. It has been held in has shown facts that warrant a declaration that Romeo is presumptively dead.
that jurisdiction that, as respects the validity of a husband’s subsequent Proceeding from these merits, this Petition must be denied.
marriage, a presumption as to the death of his first wife cannot be predicated
upon an absence resulting from his leaving or deserting her, as it is his duty to ACCORDINGLY, I vote to DENY the Petition. The Decision of the Court of Appeals
keep her advised as to his whereabouts. The spouse who has been left or in CA-G.R. SP No. 03768-MIN, affirming the October 8, 2009 Judgment of the
deserted is the one who is considered as the ‘spouse present’; such spouse is not Regional Trial Court, Branch 10, Malaybalay City, Bukidnon, declaring Romeo L.
required to ascertain the whereabouts of the deserting spouse, and after the Villanueva presumptively dead pursuant to Article 41 of the Family Code, must be
required number of years of absence of the latter, the former may validly affirmed
remarry.
G.R. No. 132529. February 2, 2001
Precisely, it is a deserting spouse’s failure to comply with what is reasonably
expected of him/her and to fulfil the responsibilities that are all but normal to a SUSAN NICDAO CARIÑO, petitioner,
spouse which makes reasonable (i.e., well-grounded) the belief that should vs.
he/she fail to manifest his/her presence within a statutorily determined SUSAN YEE CARIÑO, respondent.
reasonable period, he/she must have been deceased. The law is of the
confidence that spouses will in fact "live together, observe mutual love, respect DECISION
and fidelity, and render mutual help and support" such that it is not the business
of the law to assume any other circumstance than that a spouse is deceased in YNARES-SANTIAGO, J.:
case he/she becomes absent.13
The issue for resolution in the case at bar hinges on the validity of the two
It is Romeo who has been absent. In so doing, he is rightly considered to be no marriages contracted by the deceased SPO4 Santiago S. Cariño, whose “death
longer in a position to perform his marital obligations to Edna. Having been benefits” is now the subject of the controversy between the two Susans whom
absent for the statutorily prescribed period despite his legal obligations as a he married. 1âwphi1.nêt
married spouse, Romeo should be rightly considered presumptively dead.
Before this Court is a petition for review on certiorari seeking to set aside the
The majority burdened itself with ensuring that petitions for declaration of decision 1 of the Court of Appeals in CA-G.R. CV No. 51263, which affirmed in
presumptive death are not used as procedural shortcuts that undermine the toto the decision 2 of the Regional Trial Court of Quezon City, Branch 87, in Civil
institution of marriage. While this is a valid concern, the majority goes to Case No. Q-93-18632.
unnecessary lengths to discharge this burden. Article 41 of the Family Code
concedes that there is a degree of risk in presuming a spouse to be dead, as the During the lifetime of the late SPO4 Santiago S. Cariño, he contracted two
absent spouse may, in fact, be alive and well. Thus, Article 41 provides that marriages, the first was on June 20, 1969, with petitioner Susan Nicdao Cariño
declarations of presumptive death are "without prejudice to the reappearance of (hereafter referred to as Susan Nicdao), with whom he had two offsprings,
the absent spouse." The state is thus not bereft of remedies. namely, Sahlee and Sandee Cariño; and the second was on November 10, 1992,
with respondent Susan Yee Cariño (hereafter referred to as Susan Yee), with
Consistent with this, Article 42 of the Family Code provides for the automatic whom he had no children in their almost ten year cohabitation starting way back
termination of the subsequent marriage entered into by the present spouse in 1982.
should the absent spouse reappear: Art. 42. The subsequent marriage referred to
in the preceding Article shall be automatically terminated by the recording of the In 1988, SPO4 Santiago S. Cariño became ill and bedridden due to diabetes
affidavit of reappearance of the absent spouse, unless there is a judgment complicated by pulmonary tuberculosis. He passed away on November 23, 1992,
annulling the previous marriage or declaring it void ab nitio. under the care of Susan Yee, who spent for his medical and burial expenses. Both
petitioner and respondent filed claims for monetary benefits and financial
A sworn statement of the fact and circumstances of reappearance shall be assistance pertaining to the deceased from various government agencies.
recorded in the civil registry of the residence of the parties to the subsequent Petitioner Susan Nicdao was able to collect a total of P146,000.00 from “MBAI,
PCCUI, Commutation, NAPOLCOM, [and] Pag-ibig,” 3 while respondent Susan Yee declaring such previous marriage void. Meaning, where the absolute nullity of a
received a total of P21,000.00 from “GSIS Life, Burial (GSIS) and burial (SSS).” 4 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
On December 14, 1993, respondent Susan Yee filed the instant case for collection from legal infirmity, is a final judgment declaring the previous marriage
of sum of money against petitioner Susan Nicdao praying, inter alia, that void. 9 However, for purposes other than remarriage, no judicial action is
petitioner be ordered to return to her at least one-half of the one hundred forty- necessary to declare a marriage an absolute nullity. For other purposes, such as
six thousand pesos (P146,000.00) collectively denominated as “death benefits” but not limited to the determination of heirship, legitimacy or illegitimacy of a
which she (petitioner) received from “MBAI, PCCUI, Commutation, NAPOLCOM, child, settlement of estate, dissolution of property regime, or a criminal case for
[and] Pag-ibig.” Despite service of summons, petitioner failed to file her answer, that matter, the court may pass upon the validity of marriage even after the
prompting the trial court to declare her in default. death of the parties thereto, and even in a suit not directly instituted to question
the validity of said marriage, so long as it is essential to the determination of the
Respondent Susan Yee admitted that her marriage to the deceased took place case. 10 In such instances, evidence must be adduced, testimonial or
during the subsistence of, and without first obtaining a judicial declaration of documentary, to prove the existence of grounds rendering such a previous
nullity of, the marriage between petitioner and the deceased. She, however, marriage an absolute nullity. These need not be limited solely to an earlier final
claimed that she had no knowledge of the previous marriage and that she judgment of a court declaring such previous marriage void. 11
became aware of it only at the funeral of the deceased, where she met petitioner
who introduced herself as the wife of the deceased. To bolster her action for It is clear therefore that the Court is clothed with sufficient authority to pass
collection of sum of money, respondent contended that the marriage of upon the validity of the two marriages in this case, as the same is essential to the
petitioner and the deceased is void ab initio because the same was solemnized determination of who is rightfully entitled to the subject “death benefits” of the
without the required marriage license. In support thereof, respondent presented: deceased.
1) the marriage certificate of the deceased and the petitioner which bears no
marriage license number; 5and 2) a certification dated March 9, 1994, from the Under the Civil Code, which was the law in force when the marriage of petitioner
Local Civil Registrar of San Juan, Metro Manila, which reads – Susan Nicdao and the deceased was solemnized in 1969, a valid marriage license
is a requisite of marriage, 12 and the absence thereof, subject to certain
This is to certify that this Office has no record of marriage license of the spouses exceptions, 13 renders the marriage void ab initio. 14
SANTIAGO CARINO (sic) and SUSAN NICDAO, who are married in this municipality
on June 20, 1969. Hence, we cannot issue as requested a true copy or In the case at bar, there is no question that the marriage of petitioner and the
transcription of Marriage License number from the records of this archives. deceased does not fall within the marriages exempt from the license
requirement. A marriage license, therefore, was indispensable to the validity of
This certification is issued upon the request of Mrs. Susan Yee Cariño for whatever their marriage. This notwithstanding, the records reveal that the marriage
legal purpose it may serve. 6 contract of petitioner and the deceased bears no marriage license number and,
as certified by the Local Civil Registrar of San Juan, Metro Manila, their office has
On August 28, 1995, the trial court ruled in favor of respondent, Susan Yee, no record of such marriage license. In Republic v. Court of Appeals, 15 the Court
holding as follows: held that such a certification is adequate to prove the non-issuance of a marriage
license. Absent any circumstance of suspicion, as in the present case, the
WHEREFORE, the defendant is hereby ordered to pay the plaintiff the sum of certification issued by the local civil registrar enjoys probative value, he being the
P73,000.00, half of the amount which was paid to her in the form of death officer charged under the law to keep a record of all data relative to the issuance
benefits arising from the death of SPO4 Santiago S. Cariño, plus attorney’s fees in of a marriage license.
the amount of P5,000.00, and costs of suit.
Such being the case, the presumed validity of the marriage of petitioner and the
IT IS SO ORDERED. 7 deceased has been sufficiently overcome. It then became the burden of
petitioner to prove that their marriage is valid and that they secured the required
On appeal by petitioner to the Court of Appeals, the latter affirmed in toto the marriage license. Although she was declared in default before the trial court,
decision of the trial court. Hence, the instant petition, contending that: petitioner could have squarely met the issue and explained the absence of a
marriage license in her pleadings before the Court of Appeals and this Court. But
I. petitioner conveniently avoided the issue and chose to refrain from pursuing an
argument that will put her case in jeopardy. Hence, the presumed validity of their
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE marriage cannot stand.
FINDINGS OF THE LOWER COURT THAT VDA. DE CONSUEGRA VS. GSIS IS
APPLICABLE TO THE CASE AT BAR. It is beyond cavil, therefore, that the marriage between petitioner Susan Nicdao
and the deceased, having been solemnized without the necessary marriage
II. license, and not being one of the marriages exempt from the marriage license
requirement, is undoubtedly void ab initio.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN APPLYING EQUITY IN
THE INSTANT CASE INSTEAD OF THE CLEAR AND UNEQUIVOCAL MANDATE OF It does not follow from the foregoing disquisition, however, that since the
THE FAMILY CODE. marriage of petitioner and the deceased is declared void ab initio, the “death
benefits” under scrutiny would now be awarded to respondent Susan Yee. To
III. reiterate, under Article 40 of the Family Code, for purposes of remarriage, there
must first be a prior judicial declaration of the nullity of a previous marriage,
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT FINDING THE CASE though void, before a party can enter into a second marriage, otherwise, the
OF VDA. DE CONSUEGRA VS GSIS TO HAVE BEEN MODIFIED, AMENDED AND second marriage would also be void.
EVEN ABANDONED BY THE ENACTMENT OF THE FAMILY CODE. 8
Accordingly, the declaration in the instant case of nullity of the previous marriage
Under Article 40 of the Family Code, the absolute nullity of a previous marriage of the deceased and petitioner Susan Nicdao does not validate the second
may be invoked for purposes of remarriage on the basis solely of a final judgment marriage of the deceased with respondent Susan Yee. The fact remains that their
marriage was solemnized without first obtaining a judicial decree declaring the
marriage of petitioner Susan Nicdao and the deceased void. Hence, the marriage their descendants, each vacant share shall belong to the respective surviving
of respondent Susan Yee and the deceased is, likewise, void ab initio. descendants. In the absence of descendants, such share shall belong to the
innocent party. In all cases, the forfeiture shall take place upon termination of the
One of the effects of the declaration of nullity of marriage is the separation of the cohabitation.
property of the spouses according to the applicable property
regime. 16 Considering that the two marriages are void ab initio, the applicable In contrast to Article 148, under the foregoing article, wages and salaries earned
property regime would not be absolute community or conjugal partnership of by either party during the cohabitation shall be owned by the parties in equal
property, but rather, be governed by the provisions of Articles 147 and 148 of the shares and will be divided equally between them, even if only one party earned
Family Code on “Property Regime of Unions Without Marriage.” the wages and the other did not contribute thereto. 19 Conformably, even if the
disputed “death benefits” were earned by the deceased alone as a government
Under Article 148 of the Family Code, which refers to the property regime of employee, Article 147 creates a co-ownership in respect thereto, entitling the
bigamous marriages, adulterous relationships, relationships in a state of petitioner to share one-half thereof. As there is no allegation of bad faith in the
concubine, relationships where both man and woman are married to other present case, both parties of the first marriage are presumed to be in good faith.
persons, multiple alliances of the same married man, 17 - Thus, one-half of the subject “death benefits” under scrutiny shall go to the
petitioner as her share in the property regime, and the other half pertaining to
“... [O]nly the properties acquired by both of the parties through their actual joint the deceased shall pass by, intestate succession, to his legal heirs, namely, his
contribution of money, property, or industry shall be owned by them in common children with Susan Nicdao.
in proportion to their respective contributions ...”
In affirming the decision of the trial court, the Court of Appeals relied on the case
In this property regime, the properties acquired by the parties through of Vda. de Consuegra v. Government Service Insurance System, 20 where the Court
their actual joint contribution shall belong to the co-ownership. Wages and awarded one-half of the retirement benefits of the deceased to the first wife and
salaries earned by each party belong to him or her exclusively. Then too, the other half, to the second wife, holding that:
contributions in the form of care of the home, children and household, or
spiritual or moral inspiration, are excluded in this regime. 18 “... [S]ince the defendant’s first marriage has not been dissolved or declared void
the conjugal partnership established by that marriage has not ceased. Nor has
Considering that the marriage of respondent Susan Yee and the deceased is a the first wife lost or relinquished her status as putative heir of her husband under
bigamous marriage, having been solemnized during the subsistence of a previous the new Civil Code, entitled to share in his estate upon his death should she
marriage then presumed to be valid (between petitioner and the deceased), the survive him. Consequently, whether as conjugal partner in a still subsisting
application of Article 148 is therefore in order. marriage or as such putative heir she has an interest in the husband’s share in the
property here in dispute....” And with respect to the right of the second wife, this
The disputed P146,000.00 from MBAI [AFP Mutual Benefit Association, Inc.], Court observed that although the second marriage can be presumed to be void ab
NAPOLCOM, Commutation, Pag-ibig, and PCCUI, are clearly renumerations, initio as it was celebrated while the first marriage was still subsisting, still there is
incentives and benefits from governmental agencies earned by the deceased as a need for judicial declaration of such nullity. And inasmuch as the conjugal
police officer. Unless respondent Susan Yee presents proof to the contrary, it partnership formed by the second marriage was dissolved before judicial
could not be said that she contributed money, property or industry in the declaration of its nullity, “[t]he only just and equitable solution in this case would
acquisition of these monetary benefits. Hence, they are not owned in common be to recognize the right of the second wife to her share of one-half in the
by respondent and the deceased, but belong to the deceased alone and property acquired by her and her husband, and consider the other half as
respondent has no right whatsoever to claim the same. By intestate succession, pertaining to the conjugal partnership of the first marriage.” 21
the said “death benefits” of the deceased shall pass to his legal heirs. And,
respondent, not being the legal wife of the deceased is not one of them. It should be stressed, however, that the aforecited decision is premised on the
rule which requires a prior and separate judicial declaration of nullity of
As to the property regime of petitioner Susan Nicdao and the deceased, Article marriage. This is the reason why in the said case, the Court determined the rights
147 of the Family Code governs. This article applies to unions of parties who are of the parties in accordance with their existing property regime.
legally capacitated and not barred by any impediment to contract marriage, but
whose marriage is nonetheless void for other reasons, like the absence of a In Domingo v. Court of Appeals, 22 however, the Court, construing Article 40 of
marriage license. Article 147 of the Family Code reads - the Family Code, clarified that a prior and separate declaration of nullity of a
marriage is an all important condition precedent only for purposes of remarriage.
Art. 147. When a man and a woman who are capacitated to marry each other, That is, if a party who is previously married wishes to contract a second marriage,
live exclusively with each other as husband and wife without the benefit of he or she has to obtain first a judicial decree declaring the first marriage void,
marriage or under a void marriage, their wages and salaries shall be owned by before he or she could contract said second marriage, otherwise the second
them in equal shares and the property acquired by both of them through their marriage would be void. The same rule applies even if the first marriage is
work or industry shall be governed by the rules on co-ownership. patently void because the parties are not free to determine for themselves the
validity or invalidity or their marriage. However, for purposes other than to
In the absence of proof to the contrary, properties acquired while they lived remarry, like for filing a case for collection of sum of money anchored on a
together shall be presumed to have been obtained by their joint efforts, work or marriage claimed to be valid, no prior and separate judicial declaration of nullity
industry, and shall be owned by them in equal shares. For purposes of this Article, is necessary. All that a party has to do is to present evidence, testimonial or
a party who did not participate in the acquisition by the other party of any documentary, that would prove that the marriage from which his or her rights
property shall be deemed to have contributed jointly in the acquisition thereof if flow is in fact valid. Thereupon, the court, if material to the determination of the
the former’s efforts consisted in the care and maintenance of the family and of issues before it, will rule on the status of the marriage involved and proceed to
the household. determine the rights of the parties in accordance with the applicable laws and
jurisprudence. Thus, in Niñal v. Bayadog, 23 the Court explained:
xxx
[T]he court may pass upon the validity of marriage even in a suit not directly
When only one of the parties to a void marriage is in good faith, the share of the instituted to question the same so long as it is essential to the determination of
party in bad faith in the co-ownership shall be forfeited in favor of their common the case. This is without prejudice to any issue that may arise in the case. When
children. In case of default of or waiver by any or all of the common children or such need arises, a final judgment of declaration of nullity is necessary even if the
purpose is other than to remarry. The clause “on the basis of a final judgment
declaring such previous marriage void” in Article 40 of the Family Code connoted
that such final judgment need not be obtained only for purpose of remarriage. In the course of time, the relationship between Lupo and Yolanda became
intimate. Despite Lupo being a married man, he and Yolanda eventually lived
WHEREFORE, the petition is GRANTED, and the decision of the Court of Appeals together in consortium beginning the later part of 1983. Out of their union, two
in CA-G.R. CV No. 51263 which affirmed the decision of the Regional Trial Court children were born. However, after the birth of their second child, their
of Quezon City ordering petitioner to pay respondent the sum of P73,000.00 plus relationship turned sour until they parted ways.
attorney’s fees in the amount of P5,000.00, is REVERSED and SET ASIDE. The
complaint in Civil Case No. Q-93-18632, is hereby DISMISSED. No pronouncement
as to costs.1âwphi1.nêt
On May 28, 1992, Lupo filed in the RTC of Makati City a complaint against
SO ORDERED. Yolanda for the judicial partition between them of a parcel of land with
improvements located in Bel-Air Subdivision, Makati City and covered by Transfer
LUPO ATIENZA, G.R. No. 169698 Certificate of Title No. 147828 of the Registry of Deeds of Makati City. In his
complaint, docketed in said court as Civil Case No. 92-1423, Lupo alleged that the
Petitioner, subject property was acquired during his union with Yolanda as common-law
husband and wife, hence the property is co-owned by them.
Present:

Elaborating, Lupo averred in his complaint that the property in question was
PUNO, J., Chairperson, acquired by Yolanda sometime in 1987 using his exclusive funds and that the title
thereto was transferred by the seller in Yolandas name without his knowledge
SANDOVAL-GUTIERREZ, and consent. He did not interpose any objection thereto because at the time,
their affair was still thriving. It was only after their separation and his receipt of
CORONA, information that Yolanda allowed her new live-in partner to live in the disputed
property, when he demanded his share thereat as a co-owner.
- versus - AZCUNA, and
In her answer, Yolanda denied Lupos allegations. According to her, she acquired
GARCIA, JJ. the same property for Two Million Six Hundred Thousand Pesos (P2,600,000.00)
using her exclusive funds. She insisted having bought it thru her own savings and
earnings as a businesswoman.

Promulgated: In a decision[3] dated December 11, 2000, the trial court rendered judgment for
Lupo by declaring the contested property as owned in common by him and
Yolanda and ordering its partition between the two in equal shares, thus:

November 29, 2006 WHEREFORE, judgment is hereby rendered declaring the property covered by
Transfer Certificate of Title No. 147828 of the Registry of Deeds of Makati City to
YOLANDA DE CASTRO, be owned in common by plaintiff LUPO ATIENZA and the defendant YOLANDA U.
DE CASTRO share-and-share alike and ordering the partition of said property
Respondent. between them. Upon the finality of this Decision, the parties are hereby directed
to submit for the confirmation of the Court a mutually agreed project of partition
x------------------------------------------------------------------------------------------x of said property or, in case the physical partition of said property is not feasible
because of its nature, that either the same be assigned to one of the parties who
DECISION shall pay the value corresponding to the share of the other or that the property
to be sold and the proceeds thereof be divided equally between the parties after
GARCIA, J.: deducting the expenses incident to said sale.

Assailed and sought to be set aside in this petition for review on certiorari is the The parties shall bear their own attorneys fees and expenses of litigation.
Decision[1] dated April 29, 2005 of the Court of Appeals (CA) in CA-G.R. CV No.
69797, as reiterated in its Resolution[2] of September 16, 2005, reversing an
earlier decision of the Regional Trial Court (RTC) of Makati City, Branch 61, in an
action for Judicial Partition of Real Property thereat commenced by the herein Costs against the defendant.
petitioner Lupo Atienza against respondent Yolanda de Castro.

The facts:
SO ORDERED.
Sometime in 1983, petitioner Lupo Atienza, then the President and General
Manager of Enrico Shipping Corporation and Eurasian Maritime Corporation, From the decision of the trial court, Yolanda went on appeal to the CA in CA-G.R.
hired the services of respondent Yolanda U. De Castro as accountant for the two CV No. 69797, therein arguing that the evidence on record preponderate that she
corporations. purchased the disputed property in her own name with her own money. She
maintained that the documents appertaining to her acquisition thereof are the
best evidence to prove who actually bought it, and refuted the findings of the The applicable law being settled, we now remind the petitioner that here, as in
trial court, as well as Lupos assertions casting doubt as to her financial capacity to other civil cases, the burden of proof rests upon the party who, as determined by
acquire the disputed property. the pleadings or the nature of the case, asserts an affirmative issue. Contentions
must be proved by competent evidence and reliance must be had on the strength
As stated at the threshold hereof, the appellate court, in its decision[4] of April 29, of the partys own evidence and not upon the weakness of the opponents
2005, reversed and set aside that of the trial court and adjudged the litigated defense. The petitioner as plaintiff below is not automatically entitled to the
property as exclusively owned by Yolanda, to wit: relief prayed for. The law gives the defendant some measure of protection as the
plaintiff must still prove the allegations in the complaint. Favorable relief can be
WHEREFORE, the foregoing considered, the assailed decision is granted only after the court is convinced that the facts proven by the plaintiff
hereby REVERSED and SET ASIDE . The subject property is hereby declared to be warrant such relief.[14] Indeed, the party alleging a fact has the burden of proving
exclusively owned by defendant-appellant Yolanda U. De Castro. No costs. it and a mere allegation is not evidence.[15]

SO ORDERED. It is the petitioners posture that the respondent, having no financial capacity to
acquire the property in question, merely manipulated the dollar bank accounts of
In decreeing the disputed property as exclusively owned by Yolanda, the CA ruled his two (2) corporations to raise the amount needed therefor. Unfortunately for
that under the provisions of Article 148 of the Family Code vis--vis the evidence petitioner, his submissions are burdened by the fact that his claim to the
on record and attending circumstances, Yolandas claim of sole ownership is property contradicts duly written instruments, i.e., the Contract to Sell
meritorious, as it has been substantiated by competent evidence. To the CA, dated March 24, 1987, the Deed of Assignment of Redemption dated March 27,
Lupo failed to overcome the burden of proving his allegation that the subject 1987 and the Deed of Transfer dated April 27, 1987, all entered into by and
property was purchased by Yolanda thru his exclusive funds. between the respondent and the vendor of said property, to the exclusion of the
petitioner. As aptly pointed out by the CA:
With his motion for reconsideration having been denied by the CA in its
Resolution of September 16, 2005,[5] Lupo is now with this Court via the present Contrary to the disquisition of the trial court, [Lupo] failed to overcome this
recourse arguing that pursuant to Article 144[6] of the Civil Code, he was in no burden. Perusing the records of the case, it is evident that the trial court
way burdened to prove that he contributed to the acquisition of the subject committed errors of judgment in its findings of fact and appreciation of evidence
property because with or without the contribution by either partner, he is with regard to the source of the funds used for the purchase of the disputed
deemed a co-owner thereof, adding that under Article 484[7] of Civil Code, as long property and ultimately the rightful owner thereof. Factual findings of the trial
as the property was acquired by either or both of themduring their extramarital court are indeed entitled to respect and shall not be disturbed, unless some facts
union, such property would be legally owned by them in common and governed or circumstances of weight and substance have been overlooked or
by the rules on co-ownership, which apply in default of contracts, or special misinterpreted that would otherwise materially affect the disposition of the case.
provisions.
In making proof of his case, it is paramount that the best and most complete
We DENY. evidence be formally entered. Rather than presenting proof of his actual
contribution to the purchase money used as consideration for the disputed
It is not disputed that the parties herein were not capacitated to marry each property, [Lupo] diverted the burden imposed upon him to [Yolanda] by painting
other because petitioner Lupo Atienza was validly married to another woman at her as a shrewd and scheming woman without the capacity to purchase any
the time of his cohabitation with the respondent. Their property regime, property. Instead of proving his ownership, or the extent thereof, over the
therefore, is governed by Article 148[8] of the Family Code, which applies to subject property, [Lupo] relegated his complaint to a mere attack on the financial
bigamous marriages, adulterous relationships, relationships in a state of capacity of [Yolanda]. He presented documents pertaining to the ins and outs of
concubinage, relationships where both man and woman are married to other the dollar accounts of ENRICO and EURASIAN, which unfortunately failed to
persons, and multiple alliances of the same married man.Under this regime, only prove his actual contribution in the purchase of the said property. The fact that
the properties acquired by both of the parties through their actual joint [Yolanda] had a limited access to the funds of the said corporations and had
contribution of money, property, or industry shall be owned by them in common repeatedly withdrawn money from their bank accounts for their behalf do not
in proportion to their respective contributions ...[9] Proof of actual contribution is prove that the money she used in buying the disputed property, or any property
required.[10] for that matter, came from said withdrawals.

As it is, the regime of limited co-ownership of property governing the union of As it is, the disquisition of the court a quo heavily rested on the apparent
parties who are not legally capacitated to marry each other, but who nonetheless financial capacity of the parties. On one side, there is [Lupo], a retired sea captain
live together as husband and wife, applies to properties acquired during said and the President and General Manager of two corporations and on the other is
cohabitation in proportion to their respective contributions. Co-ownership will [Yolanda], a Certified Public Accountant. Surmising that [Lupo] is financially well
only be up to the extent of the proven actual contribution of money, property or heeled than [Yolanda], the court a quo concluded, sans evidence, that [Yolanda]
industry. Absent proof of the extent thereof, their contributions and had taken advantage of [Lupo]. Clearly, the court a quo is in error. (Words in
corresponding shares shall be presumed to be equal.[11] brackets supplied.)

As we see it, petitioners claim of co-ownership in the disputed property is


without basis because not only did he fail to substantiate his alleged contribution
Here, although the adulterous cohabitation of the parties commenced in 1983, or in the purchase thereof but likewise the very trail of documents pertaining to its
way before the effectivity of the Family Code on August 3, 1998, Article 148 purchase as evidentiary proof redounds to the benefit of the respondent. In
thereof applies because this provision was intended precisely to fill up the hiatus contrast, aside from his mere say so and voluminous records of bank accounts,
in Article 144 of the Civil Code.[12] Before Article 148 of the Family Code was which sadly find no relevance in this case, the petitioner failed to overcome his
enacted, there was no provision governing property relations of couples living in burden of proof. Allegations must be proven by sufficient evidence. Simply
a state of adultery or concubinage. Hence, even if the cohabitation or the stated, he who alleges a fact has the burden of proving it; mere allegation is not
acquisition of the property occurred before the Family Code took effect, Article evidence.
148 governs.[13]
True, the mere issuance of a certificate of title in the name of any person does
not foreclose the possibility that the real property covered thereby may be under
co-ownership with persons not named in the certificate or that the registrant "The petitioner and respondent shall have visitation rights over the children who
may only be a trustee or that other parties may have acquired interest are in the custody of the other.
subsequent to the issuance of the certificate of title. However, as already stated,
petitioners evidence in support of his claim is either insufficient or immaterial to "(3) The petitioner and respondent are directed to start proceedings on the
warrant the trial courts finding that the disputed property falls under the purview liquidation of their common properties as defined by Article 147 of the Family
of Article 148 of the Family Code. In contrast to petitioners dismal failure to Code, and to comply with the provisions of Articles50, 51 and 52 of the same
prove his cause, herein respondent was able to present preponderant evidence code, within thirty (30) days from notice of this decision.
of her sole ownership. There can clearly be no co-ownership when, as here, the
respondent sufficiently established that she derived the funds used to purchase "Let a copy of this decision be furnished the Local Civil Registrar of Mandaluyong,
the property from her earnings, not only as an accountant but also as a Metro Manila, for proper recording in the registry of marriages."[2] (Italics ours)
businesswoman engaged in foreign currency trading, money lending and jewelry
retail. She presented her clientele and the promissory notes evincing substantial Consuelo Gomez sought a clarification of that portion of the decision directing
dealings with her clients. She also presented her bank account statements and compliance with Articles 50, 51 and 52 of the Family Code. She asserted that the
bank transactions, which reflect that she had the financial capacity to pay the Family Code contained no provisions on the procedure for the liquidation of
purchase price of the subject property. common property in "unions without marriage." Parenthetically, during the
hearing on the motion, the children filed a joint affidavit expressing their desire
All told, the Court finds and so holds that the CA committed no reversible error in to remain with their father, Antonio Valdes, herein petitioner.
rendering the herein challenged decision and resolution.
In an Order, dated 05 May 1995, the trial court made the following clarification:
WHEREFORE, the instant petition is DENIED and the assailed issuances of the CA
are AFFIRMED. "Consequently, considering that Article 147 of the Family Code explicitly provides
that the property acquired by both parties during their union, in the absence of
Costs against the petitioner. proof to the contrary, are presumed to have been obtained through the joint
efforts of the parties and will be owned by them in equal shares, plaintiff and
defendant will own their 'family home' and all their other properties for that
matter in equal shares.
SO ORDERED.
"In the liquidation and partition of the properties owned in common by the
[G.R. No. 122749. July 31, 1996] plaintiff and defendant, the provisions on co-ownership found in the Civil Code
shall apply."[3] (Italics supplied)
ANTONIO A. S. VALDES, petitioner, vs. REGIONAL TRIAL COURT, BRANCH 102,
QUEZON CITY, and CONSUELO M. GOMEZ-VALDES, respondents. In addressing specifically the issue regarding the disposition of the family
dwelling, the trial court said:
DECISION
"Considering that this Court has already declared the marriage between
VITUG, J.: petitioner and respondent as null and void ab initio, pursuant to Art. 147, the
property regime of petitioner and respondent shall be governed by the rules on
The petition for review bewails, purely on a question of law, an alleged error co-ownership.
committed by the Regional Trial Court in Civil Case No. Q-92-12539. Petitioner
avers that the court a quohas failed to apply the correct law that should govern "The provisions of Articles 102 and 129 of the Family Code finds no application
the disposition of a family dwelling in a situation where a marriage is declared since Article 102 refers to the procedure for the liquidation of the conjugal
void ab initio because of psychological incapacity on the part of either or both of partnership property and Article 129 refers to the procedure for the liquidation of
the parties to the contract. the absolute community of property."[4]

The pertinent facts giving rise to this incident are, by and large, not in dispute. Petitioner moved for a reconsideration of the order. The motion was denied on
30 October 1995.
Antonio Valdes and Consuelo Gomez were married on 05 January 1971. Begotten
during the marriage were five children. In a petition, dated 22 June 1992, Valdes In his recourse to this Court, petitioner submits that Articles 50, 51 and 52 of the
sought the declaration of nullity of the marriage pursuant to Article 36 of the Family Code should be held controlling; he argues that:
Family Code (docketed Civil Case No. Q-92-12539, Regional Trial Court of Quezon
City, Branch 102). After hearing the parties following the joinder of issues, the "I
trial court,[1] in its decision of 29 July 1994, granted the petition; viz:
"Article 147 of the Family Code does not apply to cases where the parties are
"WHEREFORE, judgment is hereby rendered as follows: psychological incapacitated.

"(1) The marriage of petitioner Antonio Valdes and respondent Consuelo Gomez- "II
Valdes is hereby declared null and void under Article 36 of the Family Code on
the ground of their mutual psychological incapacity to comply with their essential "Articles 50, 51 and 52 in relation to Articles 102 and 129 of the Family Code
marital obligations; govern the disposition of the family dwelling in cases where a marriage is
declared void ab initio, including a marriage declared void by reason of the
"(2) The three older children, Carlos Enrique III, Antonio Quintin and Angela psychological incapacity of the spouses.
Rosario shall choose which parent they would want to stay with.
"III
"Stella Eloisa and Joaquin Pedro shall be placed in the custody of their mother,
herein respondent Consuelo Gomez-Valdes.
"Assuming arguendo that Article 147 applies to marriages declared void ab (b) In the case of a void marriage, any party in bad faith shall forfeit his or her
initio on the ground of the psychological incapacity of a spouse, the same may be share in the co-ownership in favor of their common children; in default thereof
read consistently with Article 129. or waiver by any or all of the common children, each vacant share shall belong to
the respective surviving descendants, or still in default thereof, to the innocent
"IV party. The forfeiture shall take place upon the termination of the
cohabitation[9] or declaration of nullity of the marriage.[10]
"It is necessary to determine the parent with whom majority of the children wish
to stay."[5] When the common-law spouses suffer from a legal impediment to marry or when
they do not live exclusively with each other (as husband and wife ),only the
The trial court correctly applied the law. In a void marriage, regardless of the property acquired by both of them through their actual joint contribution of
cause thereof, the property relations of the parties during the period of money, property or industry shall be owned in common and in proportion to their
cohabitation is governed by the provisions of Article 147 or Article 148, such as respective contributions. Such contributions and corresponding shares, however,
the case may be, of the Family Code. Article 147 is a remake of Article 144 of the are prima facie presumed to be equal. The share of any party who is married to
Civil Code as interpreted and so applied in previous cases;[6] it provides: another shall accrue to the absolute community or conjugal partnership, as the
case may be, if so existing under a valid marriage. If the party who has acted in
"ART. 147. When a man and a woman who are capacitated to marry each other, bad faith is not validly married to another, his or her share shall be forfeited in
live exclusively with each other as husband and wife without the benefit of the manner already heretofore expressed.[11]
marriage or under a void marriage, their wages and salaries shall be owned by
them in equal shares and the property acquired by both of them through their In deciding to take further cognizance of the issue on the settlement of the
work or industry shall be governed by the rules on co-ownership. parties' common property, the trial court acted neither imprudently nor
precipitately; a court which has jurisdiction to declare the marriage a nullity must
"In the absence of proof to the contrary, properties acquired while they lived be deemed likewise clothed with authority to resolve incidental and
together shall be presumed to have been obtained by their joint efforts, work or consequential matters. Nor did it commit a reversible error in ruling that
industry, and shall be owned by them in equal shares. For purposes of this petitioner and private respondent own the "family home" and all their common
Article, a party who did not participate in the acquisition by the other party of property in equal shares, as well as in concluding that, in the liquidation and
any property shall be deemed to have contributed jointly in the acquisition partition of the property owned in common by them, the provisions on co-
thereof if the former's efforts consisted in the care and maintenance of the ownership under the Civil Code, not Articles 50, 51 and 52, in relation to Articles
family and of the household. 102 and 129,[12] of the Family Code, should aptly prevail. The rules set up to
govern the liquidation of either the absolute community or the conjugal
"Neither party can encumber or dispose by acts inter vivos of his or her share in partnership of gains, the property regimes recognized for valid and voidable
the property acquired during cohabitation and owned in common, without the marriages (in the latter case until the contract is annulled ),are irrelevant to the
consent of the other, until after the termination of their cohabitation. liquidation of the co-ownership that exists between common-law spouses. The
first paragraph of Article 50 of the Family Code, applying paragraphs (2 ),(3 ),(4)
"When only one of the parties to a void marriage is in good faith, the share of the and (5) of Article 43,[13] relates only, by its explicit terms, to voidable marriages
party in bad faith in the co-ownership shall be forfeited in favor of their common and, exceptionally, to void marriages under Article 40[14] of the Code, i.e., the
children. In case of default of or waiver by any or all of the common children or declaration of nullity of a subsequent marriage contracted by a spouse of a prior
their descendants, each vacant share shall belong to the respective surviving void marriage before the latter is judicially declared void. The latter is a special
descendants. In the absence of descendants, such share shall belong to the rule that somehow recognizes the philosophy and an old doctrine that void
innocent party. In all cases, the forfeiture shall take place upon termination of marriages are inexistent from the very beginning and no judicial decree is
the cohabitation." necessary to establish their nullity. In now requiring for purposes of remarriage,
the declaration of nullity by final judgment of the previously contracted void
This peculiar kind of co-ownership applies when a man and a woman, suffering marriage, the present law aims to do away with any continuing uncertainty on
no legal impediment to marry each other, so exclusively live together as husband the status of the second marriage. It is not then illogical for the provisions of
and wife under a void marriage or without the benefit of marriage. The term Article 43, in relation to Articles 41[15] and 42,[16] of the Family Code, on the
"capacitated" in the provision (in the first paragraph of the law) refers to effects of the termination of a subsequent marriage contracted during the
the legal capacity of a party to contract marriage, i.e., any "male or female of the subsistence of a previous marriage to be made applicable pro hac vice. In all
age of eighteen years or upwards not under any of the impediments mentioned other cases, it is not to be assumed that the law has also meant to have
in Articles 37 and 38"[7] of the Code. coincident property relations, on the one hand, between spouses in valid and
voidable marriages (before annulment) and, on the other, between common-law
Under this property regime, property acquired by both spouses through spouses or spouses of void marriages, leaving to ordain, in the latter case, the
their work and industry shall be governed by the rules on equal co-ownership. ordinary rules on co-ownership subject to the provision of Article 147 and Article
Any property acquired during the union is prima facie presumed to have been 148 of the Family Code. It must be stressed, nevertheless, even as it may merely
obtained through their joint efforts. A party who did not participate in the state the obvious, that the provisions of the Family Code on the "family home,"
acquisition of the property shall still be considered as having contributed thereto i.e., the provisions found in Title V, Chapter 2, of the Family Code, remain in force
jointly if said party's "efforts consisted in the care and maintenance of the family and effect regardless of the property regime of the spouses.
household."[8] Unlike the conjugal partnership of gains, the fruits of the couple's
separate property are not included in the co-ownership. WHEREFORE, the questioned orders, dated 05 May 1995 and 30 October 1995,
of the trial court are AFFIRMED. No costs.
Article 147 of the Family Code, in substance and to the above extent, has clarified
Article 144 of the Civil Code; in addition, the law now expressly provides that SO ORDERED.

(a) Neither party can dispose or encumber by act inter vivos his or her share in
co-ownership property, without the consent of the other, during the period of
cohabitation; and
G.R. No. L-36461 June 29, 1984 Remedies who shouted for help. When he reached the front of the Pasay
Commercial Bank he fell down and expired. At the time of his death, the "Seiko"
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, watch was strapped to his wrist. (pp. 57-61, tsn., Id., pp. 7-9, tsn., Jan. 22,
vs. 1973).lwphl@itç
HERNANDO DIO, accused-appellant.
An autopsy conducted on the victim's body by Dr. Ricardo Ibarola medicolegal
The Solicitor General for plaintiff-appellee. officer of the NBI revealed that the cause of death was a stab wound at the
region below his left breast which penetrated the heart. Said doctor opined that
Luis R. Feria for accused-appellant. judging from the natural appearance of the stab wound, it must have been
caused by a single-bladed pointed instrument (pp. 6, 13-14, tsn., Jan. 11, 1973;
Exh. C and C-1, p. 87, rec.). The necropsy report (Exh. A, p. 85, rec.) stated that
the decease sustained the following injuries:
ABAD SANTOS, J.:
Abrasions: right zygomatic region, 0.6 x 0.4 infralabial region, right side 1.7 x 1.4
Automatic review of a decision of the defunct Circuit Criminal Court, 7th Judicial come forearm right, upper third, posterolateral aspect, 0.6 x 0.4 clean and left,
District, which imposed the death penalty. lower third, posterior aspect, 0.4 x 0.2 come right knee, 0.6 x 0.4 come right leg,
upper third, anterior aspect, 1.4 x 0.8
An information for robbery with homicide was filed on October 1, 1971, against
Danilo Tobias and a John Doe. The order to arrest Tobias was returned unserved Incise wounds, neck, left supers-lateral aspect, two in number, 2.5 and 1.2 crime
and he is still on the "Wanted Persons Files." in lengths, both superficial

On December 7, 1971, the information was amended to name Hernando Dio as Stab wound: left inframammary region, level of the 5th intercostal space along
the John Doe, the appellant herein. As amended, the information reads: the parasternal line, 6.0 cm. from the anterior midline, 0.5 crime below the left
nipple, elliptical in shape, 3.0 cm. long extended laterally by 3.0 crime long rising
That on or about the 24th day of July 1971, in Pasay City, Philippines and within slightly downwards, medially edges, clean cut, sutured, medial extremity of
the jurisdiction of this Honorable Court, the above-named accused Danilo Tobias which is blunt and lateral extremity, sharp; directed upwards, medially and
@ Danny Kulot and Hernando Dio @ Way Kaon, conspiring and confederating backwards involving, among others, the soft tissues, thru the 5th intercostal
together and mutually helping one another, with intent to gain and without the muscles, grazing the 6th rib superiorly, perforating the left pleural cavity only,
knowledge and consent of the owner, and with the use of 'balisong', one of the into the middle mediastinum by penetrating the pericardium antero-inferiorly,
accused was provided with, and by means of force, threats and intimidation perforating the interventricular system and penetrating the left ventricle of the
employed upon the latter, did then and there wilfully, unlawfully and feloniously heart at its apical portions, approximate depth 11.0 cm.
take, steal and rob away from one Crispulo P. Alega, one Seiko brand men's wrist
watch (recovered); and the said accused in accordance with and pursuant to their After the appellant's arrest on October 24, 1972, he was investigated at the
conspiracy, and in order to carry out their avowed purpose, with intent to kill did Detective Bureau of the Pasay City Police Department and gave a statement (Exh.
then and there wilfully, unlawfully and feloniously attack, assault and stab for D, p. 90, rec.) in the presence of Pat. Arturo Rimorin admitting that on the date
several times Crispulo P. Alega, and which "balisong" was directly aimed at the and nine of the incident, he and his co-accused, Danilo Tobias administrative
vital portions of the body of said Crispulo P. Alega, thus performing all the acts of Kardong Kaliwa alias Danny Kulot, held up a man and a woman; that they did not
execution causing his instantaneous death. (Expediente, p. 68.) get the watch of the man; that he held the victim's hands but the latter was able
to free himself; that Danny Kulot stabbed the man, that when the victim ran,
Accused Hernando Dio pleaded not guilty when he was arraigned and after trial they also ran away; and that he did not know what happened to the victim (Exhs.
the court rendered the following judgment: D, D-1, D-2, D-3, D-4 and D-5, p. 90, rec.; pp. 27-3 1, tsn., Jan. 11, 1973). (Brief,
pp. 2-6.)
WHEREFORE, finding the accused, Hernando Dio, Guilty, beyond reasonable
doubt, of the crime of Robbery with Homicide as defined under Article 294 of the Atty. Luis R. Feria, counsel de oficio of the appellant, states:
Revised Penal Code, as charged in the Amended Information, the Court hereby
sentences him to suffer the penalty of DEATH; to indemnify the heirs of the After a careful, considered and conscientious examination of the evidence
victim, Crispulo Alega the amount of P12,000.00; to pay moral damages in the adduced in the instant case, undersigned counsel is constrained to conclude that
amount of P10,000.00 and another P10,000.00, as exemplary damages; and to the findings of fact of the trial court, upholding the version of the prosecution as
pay the costs. (Id., pp. 105-106.) against that of the defense, must have to be sustained. As against the sole and
uncorroborated testimony of appellant merely denying any participation in the
The People's version of the facts is as follows: commission of the crime imputed to him (while admitting that he was present at
the scene of the crime), there is a formidable array of evidence against him
At about noontime on July 24, 1971, Crispulo Alega, a civil engineer by profession consisting of the clear and convincing testimony of Remedios Maniti, who was in
working at the Sugar Construction Company, with a salary of more than P500.00 the company of the deceased at the time he was killed and an eyewitness to the
a month went to the Southeastern College, Pasay City to fetch his girlfriend, entire incident; the extra-judicial written confession of defendant-appellant
Remedios Maniti, a third year high school student thereat (pp. 55, 59, 63-64, 11 (Exhibit D) admitting participation in the commission of the crime; the testimony
1973). They proceeded to the Pasay City Public Market. As they were going up of Patrolman Arturo Rimorin who conducted the investigation of, and before
the stairs leading to the Teresa and Sons Restaurant, Remedios, who was was whom Exhibit D was executed and signed by, defendant- appellant, as well
about an arms-length ahead of Crispulo suddenly heard the dropping of her straight the testimony of Sgt. Geronimo de los Santos of the Pasay Police to
folders and other things, being carried by Crispulo. When she looked back, she whom defendant-appellant orally admitted that he held the victim's hands
saw a man — later Identified as Danilo Tobias but still at large — twisting the although he had no part in the actual stabbing of the deceased.
neck of Crispulo, while the appellant was holding his (Crispulo's) two hands (pp.
56-57, 61, tsn., Id.). The appellant and his companion tried to divest Crispulo of With respect to the testimony of the eyewitness Remedios Maniti there is
his "Seiko" wrist watch, but Crispulo resisted their attempt and fought the absolutely nothing in the record (except perhaps that she was the sweetheart of
robbers. At this juncture, the man who was twisting the neck of Crispulo stabbed the deceased) to show, or even hint, that she had any reasons to perjure herself
the latter on the left side of his chest. Crispulo ran down the stairs followed by by falsely incriminating defendant-appellant in such a grievous crime, no bias,
interest or prejudice against the latter as would move or induce her to faithlessly this case would properly come under the provision of Art. 297 of the Revised
accuse him of a crime which he had not committed. More than ever, the time- Penal Code which states that —
honored ruling of this Honorable Court, too elemental to require citations, that
the findings of the trial court on the question of credibility of the witnesses, When by reason or on occasion of an attempted or frustrated robbery a homicide
having had the advantage of observing their demeanor and manner of testifying, is committed, the person guilty of such offenses shall be punished by reclusion
should not be disturbed in the absence of strong and cogent reasons therefor, temporal in its maximum period to reclusion perpetua, unless the homicide
applies fully to the case at bar. No such reasons can be found herein. committed shall deserve a higher penalty under the provisions of this Code.
(Brief, pp. 5-6.)
The same observations may be made with respect to the testimonies of
Patrolman Rimorin and Sgt. de los Santos. Moreover, as has been held by this In his second assignment of error the appellant claims that the information does
Honorable Court, where the prosecution witnesses, being government not allege any aggravating circumstance nor was any proved during the trial.
employees who testified as to what transpired in the performance of their duties,
were neutral and disinterested and had no reason to falsely testify against the Again the Solicitor General states:
accused, and did not subject him to any violence, torture or bodily harm, their
testimonies should be given more weight than that of the accused (P. v. Pereto, We likewise agree with the contention of counsel in his second assigned error
21 SCRA 1469: P. v. Del Castillo, 25 SCRA 716.) that the evidence presented by the prosecution did not show the attendance of
any aggravating circumstance in the commands of the crime and neither did the
Then there is the extrajudicial confession of defendant-appellant, Exhibit D. True court a quo make any finding in this respect (pp. 7-8, appellant's brief). (Id, p. 6.)
it is that, belatedly during the trial, appellant claimed that his answers appearing
in Exhibit D were given because he was afraid as he was intimidated and struck The crime committed by the appellant is attempted robbery with homicide and
on the buttock with a long piece of wood (pp. 32-34, t.s.n. Ses. of January 22, the penalty prescribed by law is reclusion temporal in its maximum period
1973). It is submitted that this last-minute, desperate and uncorroborated claim to reclusion perpetua. Since there was no attendant mitigating nor aggravating
falls flat in the face not only of the presumption of voluntariness in the execution circumstance, the penalty should be applied in its medium period, i.e. 18 years, 8
of confessions, but also of the testimony of Patrolman Rimorin to the effect that months and 1 day to 20 years. The Indeterminate Sentence Law has also to be
Exhibit D was executed voluntarily and that defendant-appellant was never applied.
maltreated (pp. 26, 31-32, t.s.n. Ses. of January 11, 1973), and the latter's own
admission that before he signed Exhibit D, its contents were first read to him in WHEREFORE, the judgment of the trial court is hereby modified; the appellant is
Tagalog and that he fully understood the same (pp. 24, t.s.n. Ses. of January 22, found guilty beyond reasonable doubt of the special complex crime of attempted
1973), and his further admission that he has not filed any case against those who robbery with homicide and he is sentenced to suffer an indeterminate penalty of
had allegedly maltreated him (p. 33, t.s.n,Id.). Moreover, where the alleged 10 years and 1 day of prision mayor as minimum to 20 years of reclusion
confession reveals spontaneity of the declarations belying the claim that they temporal as maximum, to indemnify the heirs of Crispulo Alega in the amount of
were concocted or dictated by the police, the court win reject the case that the P30,000.00, and to pay one-half of the costs. SO ORDERED.
confession was involuntary (P. v. Castro, 11 SCRA 699).lwphl@itç (Brief, pp. 3-5.)

Notwithstanding the foregoing factual admission, Atty. Feria makes the following
assignment of errors: [G.R. NO. 165060 : November 27, 2008]

1. THE TRIAL COURT ERRED IN CONVICTING DEFENDANT- APPELLANT OF THE ALBINO JOSEF, Petitioner, v. OTELIO SANTOS, Respondent.
SPECIAL COMPLEX CRIME OF ROBBERY WITH HOMICIDE AS DEFINED AND
PENALIZED UNDER ART. 294, PAR. 1, OF THE REVISED PENAL CODE. DECISION

2. EVEN ASSUMING THAT THE CRIME COMMITTED BY DEFENDANT-APPELLANT IS YNARES-SANTIAGO, J.:


ROBBERY WITH HOMICIDE, THE TRIAL COURT ERRED IN SENTENCING HIM TO
SUFFER THE DEATH PENALTY. This Petition for Review on Certiorari under Rule 45 of the Rules of Court assails
the November 17, 20031Resolution of the Court of Appeals in CA-G.R. SP No.
We have scrutinized the record, particularly the testimonial evidence, and indeed 80315, dismissing petitioner's special civil action of certiorari for failure to file a
there is no doubt that the appellant had a hand in the death of Crispulo Alega. prior motion for reconsideration, and the May 7, 20042 Resolution denying the
There remains to be considered, however, the claims of the appellant which are motion for reconsideration.
made in the assignment of errors.
Petitioner Albino Josef was the defendant in Civil Case No. 95-110-MK, which is a
The appellant claims in his first assignment of error that he should not have been case for collection of sum of money filed by herein respondent Otelio Santos,
convicted of the special complex crime of robbery with homicide because the who claimed that petitioner failed to pay the shoe materials which he bought on
robbery was not consummated. He states that there was only an attempted credit from respondent on various dates in 1994.
robbery.
After trial, the Regional Trial Court of Marikina City, Branch 272, found petitioner
The Solicitor General states: liable to respondent in the amount of P404,836.50 with interest at 12% per
annum reckoned from January 9, 1995 until full payment.3
... We are constrained to agree with defense' contention. The evidence adduced
show that the appellant and his companion were unsuccessful in their criminal Petitioner appealed4 to the Court of Appeals, which affirmed the trial court's
venture of divesting the victim of his wrist watch so as to constitute the decision in toto.5 Petitioner filed before this Court a Petition for Review
consummated crime of robbery. Indeed, as adverted to earlier, when the victim on Certiorari, but it was dismissed in a Resolution dated February 18, 2002.6 The
expired, the 'Seiko' watch was still securely strapped to his wrist (p. 59, t.s.n., Jan. Judgment became final and executory on May 21, 2002.
11, 1973). The killing of Crispulo Alega may be considered as merely incidental to
and an offshoot of the plan to carry out the robbery, which however was not On February 17, 2003, respondent moved for issuance of a writ of
consummated because of the resistance offered by the deceased. Consequently, execution,7 which was opposed by petitioner.8 In an Order dated July 16,
2003,9 the trial court granted the motion, the dispositive portion of which reads, judgment considering the length of time it took for the parties to litigate and the
as follows: various remedies petitioner availed of which have delayed the case.

WHEREFORE, premises considered, the motion for issuance of writ of execution The petition is meritorious.
is hereby granted. Let a writ of execution be issued commanding the Sheriff of
this Court to execute the decision dated December 18, 1996. Petitioner, in his opposition to respondent's motion for issuance of a writ of
execution, claimed that he was insolvent; that he had no property to answer for
SO ORDERED.10 the judgment credit; that the house and lot in which he was residing at the time
was his family home thus exempt from execution; that the household furniture
A writ of execution was issued on August 20, 200311 and enforced on August 21, and appliances found therein are likewise exempt from execution; and that these
2003. On August 29, 2003, certain personal properties subject of the writ of furniture and appliances belonged to his children Jasmin Josef and Jean Josef
execution were auctioned off. Thereafter, a real property located at Marikina City Isidro. Thus, as early as during proceedings prior to the issuance of the writ of
and covered by Transfer Certificate of Title (TCT) No. N-105280 was sold on execution, petitioner brought to the fore the issue of exemption from execution
October 28, 2003 by way of public auction to fully satisfy the judgment credit. of his home, which he claimed to be a family home in contemplation of the civil
Respondent emerged as the winning bidder and a Certificate of Sale12 dated law.
November 6, 2003 was issued in his favor.
However, instead of inquiring into the nature of petitioner's allegations in his
On November 5, 2003, petitioner filed an original petition for certiorari with the opposition, the trial court ignored the same and granted respondent's motion for
Court of Appeals, questioning the sheriff's levy and sale of the abovementioned execution. The full text of the July 16, 2003 Order provides, as follows:
personal and real properties. Petitioner claimed that the personal properties did
not belong to him but to his children; and that the real property covered by TCT This resolves the "Motion for the Issuance of Writ of Execution" filed by plaintiff
No. N-105280 was his family home thus exempt from execution. thru counsel and the "Opposition" thereto filed by the defendant on her own
behalf.
On November 17, 2003, the Court of Appeals issued the assailed Resolution
dismissing the petition for failure of petitioner to file a motion for The records show that a decision was rendered by this Court in favor of the
reconsideration of the trial court's July 16, 2003 Order granting the motion for plaintiff on December 18, 1995 which decision was affirmed by the Court of
execution and ordering the issuance of a writ therefor, as well as for his failure to Appeals on June 26, 2001 and by the Supreme Court on February 18, 2002. On
indicate in his petition the timeliness of its filing as required under the Rules of June 18, 2003, this Court received the entire records of the case from the Court
Court. On May 7, 2004, the appellate court denied petitioner's motion for of Appeals.
reconsideration.
Considering the foregoing, it is now the ministerial duty of the Court to issue a
Thus, the instant petition which raises the following issues: writ of execution pursuant to Sec. 1, Rule 39 of the Rules of Court.

I. WHEREFORE, premises considered, the motion for issuance of writ of execution


is hereby granted. Let a writ of execution be issued commanding the Sheriff of
WHETHER OR NOT THE LEVY AND SALE OF THE PERSONAL BELONGINGS OF THE this Court to execute the decision dated December 18, 1996.
PETITIONER'S CHILDREN AS WELL AS THE ATTACHMENT AND SALE ON PUBLIC
AUCTION OF HIS FAMILY HOME TO SATISFY THE JUDGMENT AWARD IN FAVOR SO ORDERED.13
OF RESPONDENT IS LEGAL.
The above Order did not resolve nor take into account petitioner's allegations in
II. his Opposition, which are material and relevant in the resolution of the motion
for issuance of a writ of execution. This is serious error on the part of the trial
WHETHER OR NOT THE DISMISSAL OF THE PETITIONER'S PETITION FOR court. It should have made an earnest determination of the truth to petitioner's
CERTIORARI BY THE HONORABLE COURT OF APPEALS IS JUSTIFIED UNDER THE claim that the house and lot in which he and his children resided was their duly
CIRCUMSTANCES. constituted family home. Since it did not, its July 16, 2003 Order is thus null and
void. Where a judgment or judicial order is void it may be said to be a lawless
Petitioner argues that the trial court sheriff erroneously attached, levied and sold thing, which can be treated as an outlaw and slain at sight, or ignored wherever
on execution the real property covered by TCT No. N-105280 because the same is and whenever it exhibits its head.14
his family home; that the execution sale was irregular because it was conducted
without complying with the notice and posting of requirements; and that the The family home is a real right which is gratuitous, inalienable and free from
personal and real properties were sold for inadequate prices as to shock the attachment, constituted over the dwelling place and the land on which it is
conscience. The real property was allegedly worth P8 million but was sold for situated, which confers upon a particular family the right to enjoy such
only P848,448.64. properties, which must remain with the person constituting it and his heirs. It
cannot be seized by creditors except in certain special cases.15
Petitioner also argues that the appellate court gravely abused its discretion in
dismissing the petition based purely on technical grounds, i.e., his failure to file a Upon being apprised that the property subject of execution allegedly constitutes
motion for reconsideration of the trial court's order granting execution, and his petitioner's family home, the trial court should have observed the following
failure to indicate in his petition for certiorari the timeliness of filing the same procedure:
with the Court of Appeals.
1. Determine if petitioner's obligation to respondent falls under either of the
Respondent, on the other hand, argues that petitioner's alleged family home has exceptions under Article 15516 of the Family Code;
not been shown to have been judicially or extrajudicially constituted, obviously
referring to the provisions on family home of the Civil Code - not those of the 2. Make an inquiry into the veracity of petitioner's claim that the property was
Family Code which should apply in this case; that petitioner has not shown to the his family home;17 conduct an ocular inspection of the premises; an examination
court's satisfaction that the personal properties executed upon and sold of the title; an interview of members of the community where the alleged family
belonged to his children. Respondent argues that he is entitled to satisfaction of home is located, in order to determine if petitioner actually resided within the
premises of the claimed family home; order a submission of photographs of the petitioner's argument that the properties subject of the writ are exempt from
premises, depositions, and/or affidavits of proper individuals/parties; or a solemn execution.
examination of the petitioner, his children and other witnesses. At the same
time, the respondent is given the opportunity to cross-examine and present Indeed, petitioner's resort to the special civil action of certiorari in the Court of
evidence to the contrary; Appeals was belated and without benefit of the requisite motion for
reconsideration, however, considering the gravity of the issue, involving as it
3. If the property is accordingly found to constitute petitioner's family home, the does matters that strike at the very heart of that basic social institution which the
court should determine: State has a constitutional and moral duty to preserve and protect, as well as
petitioner's constitutional right to abode, all procedural infirmities occasioned
a) if the obligation sued upon was contracted or incurred prior to, or after, the upon this case must take a back seat to the substantive questions which deserve
effectivity of the Family Code;18 to be answered in full.

b) if petitioner's spouse is still alive, as well as if there are other beneficiaries of WHEREFORE, the Petition for Review on Certiorari is GRANTED. The November
the family home;19 17, 2003 and May 7, 2004 Resolutions of the Court of Appeals in CA-G.R. SP No.
80315 are REVERSED and SET ASIDE. The July 16, 2003 Order of the Regional
c) if the petitioner has more than one residence for the purpose of determining Trial Court of Marikina City, Branch 272 in Civil Case No. 95-110-MK, as well as
which of them, if any, is his family home;20 and the writ or writs of execution thus issued in said case, are hereby DECLARED
VOID, and all acts proceeding therefrom and any title obtained by virtue thereof
d) its actual location and value, for the purpose of applying the provisions of are likewise DECLARED VOID.
Articles 15721 and 16022 of the Family Code.
The trial court is hereby DIRECTED (1) to conduct a solemn inquiry into the
The family home is the dwelling place of a person and his family, a sacred symbol nature of the real property covered by Transfer Certificate of Title No. N-105280,
of family love and repository of cherished memories that last during one's with a view toward determining whether the same is petitioner Albino Josef's
lifetime.23 It is the sanctuary of that union which the law declares and protects as family home, and if so, apply the pertinent provisions of the Family Code and
a sacred institution; and likewise a shelter for the fruits of that union. It is where Rule 39 of the Rules of Court; and (2) to conduct an inquiry into the ownership of
both can seek refuge and strengthen the tie that binds them together and which all other properties that were levied upon and sold, with the aim of determining
ultimately forms the moral fabric of our nation. The protection of the family as well whether these properties are exempt from execution under existing law.
home is just as necessary in the preservation of the family as a basic social
institution, and since no custom, practice or agreement destructive of the family Respondent Otelio Santos is hereby DIRECTED to hold the abovementioned real
shall be recognized or given effect,24 the trial court's failure to observe the proper and personal properties, or the proceeds thereof, in trust to await the outcome
procedures to determine the veracity of petitioner's allegations, is unjustified. of the trial court's inquiry.

The same is true with respect to personal properties levied upon and sold at Finally, the trial court is DIRECTED to resolve, with utmost dispatch, Civil Case No.
auction. Despite petitioner's allegations in his Opposition, the trial court did not 95-110-MK within sixty (60) days from receipt of a copy of this Decision.
make an effort to determine the nature of the same, whether the items were
exempt from executionor not, or whether they belonged to petitioner or to SO ORDERED.
someone else.25

Respondent moved for issuance of a writ of execution on February 17, 2003


while petitioner filed his opposition on June 23, 2003. The trial court granted the PERLA G. PATRICIO, G.R. No. 170829
motion on July 16, 2003, and the writ of execution was issued on August 20,
2003. Clearly, the trial court had enough time to conduct the crucial inquiry that Petitioner,
would have spared petitioner the trouble of having to seek relief all the way to
this Court. Indeed, the trial court's inaction on petitioner's plea resulted in Present:
serious injustice to the latter, not to mention that its failure to conduct an inquiry
based on the latter's claim bordered on gross ignorance of the law. Panganiban, C.J. (Chairperson),

Being void, the July 16, 2003 Order could not have conferred any right to - versus - Ynares-Santiago,
respondent. Any writ of execution based on it is likewise void. Although we have
held in several cases26 that a claim for exemption from execution of the family Austria-Martinez,
home should be set up and proved before the sale of the property at public
auction, and failure to do so would estop the party from later claiming the Callejo, Sr., and
exemption since the right of exemption is a personal privilege granted to the
judgment debtor which must be claimed by the judgment debtor himself at the Chico-Nazario, JJ.
time of the levy or within a reasonable period thereafter, the circumstances of
the instant case are different. Petitioner claimed exemption from execution of his MARCELINO G. DARIO III and
family home soon after respondent filed the motion for issuance of a writ of
execution, thus giving notice to the trial court and respondent that a property THE HONORABLE COURT OF Promulgated:
exempt from execution may be in danger of being subjected to levy and sale.
Thereupon, the trial court is called to observe the procedure as herein laid out; APPEALS, Second Division,
on the other hand, the respondent should observe the procedure prescribed in
Article 160 of the Family Code, that is, to obtain an order for the sale on Respondents. November 20, 2006
execution of the petitioner's family home, if so, and apply the proceeds - less the
maximum amount allowed by law under Article 157 of the Code which should
remain with the petitioner for the rebuilding of his family home - to his judgment
credit. Instead, both the trial court and respondent completely ignored
DECISION The sole issue is whether partition of the family home is proper where one of the
co-owners refuse to accede to such partition on the ground that a minor
YNARES-SANTIAGO, J.: beneficiary still resides in the said home.

Private respondent claims that the subject property which is the family home
This petition for review on certiorari under Rule 45 of the Rules of Court seeks to duly constituted by spouses Marcelino and Perla Dario cannot be partitioned
annul and set aside the Resolution of the Court of Appeals dated December 9, while a minor beneficiary is still living therein namely, his 12-year-old son, who is
2005[1] in CA-G.R. CV No. 80680, which dismissed the complaint for partition filed the grandson of the decedent. He argues that as long as the minor is living in the
by petitioner for being contrary to law and evidence. family home, the same continues as such until the beneficiary becomes of
age. Private respondent insists that even after the expiration of ten years from
On July 5, 1987, Marcelino V. Dario died intestate. He was survived by his wife, the date of death of Marcelino on July 5, 1987, i.e., even after July 1997, the
petitioner Perla G. Patricio and their two sons, Marcelino Marc Dario and private subject property continues to be considered as the family home considering that
respondent Marcelino G. Dario III. Among the properties he left was a parcel of his minor son, Marcelino Lorenzo R. Dario IV, who is a beneficiary of the said
land with a residential house and a pre-school building built thereon situated at family home, still resides in the premises.
91 Oxford corner Ermin Garcia Streets in Cubao, Quezon City, as evidenced by
Transfer Certificate of Title (TCT) No. RT-30731 (175992) of the Quezon City On the other hand, petitioner alleges that the subject property remained as a
Registry of Deeds, covering an area of seven hundred fifty five (755) square family home of the surviving heirs of the late Marcelino V. Dario only up to July 5,
meters, more or less.[2] 1997, which was the 10th year from the date of death of the decedent. Petitioner
argues that the brothers Marcelino Marc and private respondent Marcelino III
On August 10, 1987, petitioner, Marcelino Marc and private respondent, were already of age at the time of the death of their father,[8] hence there is no
extrajudicially settled the estate of Marcelino V. Dario. Accordingly, TCT No. RT- more minor beneficiary to speak of.
30731 (175992) was cancelled and TCT No. R-213963 was issued in the names of
petitioner, private respondent and Marcelino Marc. The family home is a sacred symbol of family love and is the repository of
cherished memories that last during ones lifetime.[9] It is the dwelling house
Thereafter, petitioner and Marcelino Marc formally advised private respondent where husband and wife, or by an unmarried head of a family, reside, including
of their intention to partition the subject property and terminate the co- the land on which it is situated.[10] It is constituted jointly by the husband and the
ownership. Private respondent refused to partition the property hence petitioner wife or by an unmarried head of a family.[11] The family home is deemed
and Marcelino Marc instituted an action for partition before the Regional Trial constituted from the time it is occupied as a family residence. From the time of
Court of Quezon City which was docketed as Civil Case No. Q-01-44038 and its constitution and so long as any of its beneficiaries actually resides therein, the
raffled to Branch 78. family home continues to be such and is exempt from execution, forced sale or
attachment except as hereinafter provided and to the extent of the value
On October 3, 2002,[3] the trial court ordered the partition of the subject property allowed by law.[12]
in the following manner: Perla G. Patricio, 4/6; Marcelino Marc G. Dario, 1/6; and
Marcelino G. Dario III, 1/6. The trial court also ordered the sale of the property by The law explicitly provides that occupancy of the family home either by the
public auction wherein all parties concerned may put up their bids. In case of owner thereof or by any of its beneficiaries must be actual. That which is actual is
failure, the subject property should be distributed accordingly in the aforestated something real, or actually existing, as opposed to something merely possible, or
manner.[4] to something which is presumptive or constructive. Actual occupancy, however,
need not be by the owner of the house specifically. Rather, the property may be
Private respondent filed a motion for reconsideration which was denied by the occupied by the beneficiaries enumerated in Article 154 of the Family Code,
trial court on August 11, 2003,[5] hence he appealed before the Court of Appeals, which may include the in-laws where the family home is constituted jointly by
which denied the same on October 19, 2005. However, upon a motion for the husband and wife. But the law definitely excludes maids and overseers. They
reconsideration filed by private respondent on December 9, 2005, the appellate are not the beneficiaries contemplated by the Code.[13]
court partially reconsidered the October 19, 2005 Decision. In the now assailed
Resolution, the Court of Appeals dismissed the complaint for partition filed by Article 154 of the Family Code enumerates who are the beneficiaries of a family
petitioner and Marcelino Marc for lack of merit. It held that the family home home: (1) The husband and wife, or an unmarried person who is the head of a
should continue despite the death of one or both spouses as long as there is a family; and (2) Their parents, ascendants, descendants, brothers and sisters,
minor beneficiary thereof. The heirs could not partition the property unless the whether the relationship be legitimate or illegitimate, who are living in the family
court found compelling reasons to rule otherwise. The appellate court also held home and who depend upon the head of the family for legal support.
that the minor son of private respondent, who is a grandson of spouses
Marcelino V. Dario and Perla G. Patricio, was a minor beneficiary of the family To be a beneficiary of the family home, three requisites must concur: (1) they
home.[6] must be among the relationships enumerated in Art. 154 of the Family Code; (2)
they live in the family home; and (3) they are dependent for legal support upon
Hence, the instant petition on the following issues: the head of the family.

I. Moreover, Article 159 of the Family Code provides that the family home shall
THE HONORABLE COURT OF APPEALS PATENTLY ERRED IN REVERSING ITS continue despite the death of one or both spouses or of the unmarried head of
EARLIER DECISION OF OCTOBER 19, 2005 WHICH AFFIRMED IN TOTO THE the family for a period of 10 years or for as long as there is a minor beneficiary,
DECISION OF THE TRIAL COURT DATED 03 OCTOBER 2002 GRANTING THE and the heirs cannot partition the same unless the court finds compelling reasons
PARTITION AND SALE BY PUBLIC AUCTION OF THE SUBJECT PROPERTY. therefor. This rule shall apply regardless of whoever owns the property or
constituted the family home.
II.
COROLLARILY, THE HONORABLE COURT OF APPEALS PATENTLY ERRED IN Article 159 of the Family Code applies in situations where death occurs to
APPLYING ARTICLE 159 IN RELATION TO ARTICLE 154 OF THE FAMILY CODE ON persons who constituted the family home. Dr. Arturo M. Tolentino comments on
FAMILY HOME INSTEAD OF ARTICLE 494 IN RELATION TO ARTICLES 495 AND 498 the effect of death of one or both spouses or the unmarried head of a family on
OF THE NEW CIVIL CODE ON CO-OWNERSHIP.[7] the continuing existence of the family home:
Upon the death of the spouses or the unmarried family head who constituted the However, as to the third requisite, Marcelino Lorenzo R. Dario IV cannot demand
family home, or of the spouse who consented to the constitution of his or her support from his paternal grandmother if he has parents who are capable of
separate property as family home, the property will remain as family home for supporting him. The liability for legal support falls primarily on Marcelino Lorenzo
ten years or for as long as there is a minor beneficiary living in it. If there is no R. Dario IVs parents, especially his father, herein private respondent who is the
more beneficiary left at the time of death, we believe the family home will be head of his immediate family. The law first imposes the obligation of legal
dissolved or cease, because there is no more reason for its existence. If there are support upon the shoulders of the parents, especially the father, and only in their
beneficiaries who survive living in the family home, it will continue for ten default is the obligation imposed on the grandparents.
years, unless at the expiration of the ten years, there is still a minor beneficiary,
in which case the family home continues until that beneficiary becomes of age. Marcelino Lorenzo R. Dario IV is dependent on legal support not from his
After these periods lapse, the property may be partitioned by the heirs. May the grandmother, but from his father. Thus, despite residing in the family home and
heirs who are beneficiaries of the family home keep it intact by not partitioning his being a descendant of Marcelino V. Dario, Marcelino Lorenzo R. Dario IV
the property after the period provided by this article? We believe that although cannot be considered as beneficiary contemplated under Article 154 because he
the heirs will continue in ownership by not partitioning the property, it will did not fulfill the third requisite of being dependent on his grandmother for legal
cease to be a family home.[14] (Emphasis supplied) support. It is his father whom he is dependent on legal support, and who must
Prof. Ernesto L. Pineda further explains the import of Art. 159 in this manner: now establish his own family home separate and distinct from that of his parents,
being of legal age.
The family home shall continue to exist despite the death of one or both spouses
or of the unmarried head of the family. Thereafter, the length of its continued Legal support, also known as family support, is that which is provided by law,
existence is dependent upon whether there is still a minor-beneficiary residing comprising everything indispensable for sustenance, dwelling, clothing, medical
therein. For as long as there is one beneficiary even if the head of the family or attendance, education and transportation, in keeping with the financial capacity
both spouses are already dead, the family home will continue to exist (Arts. 153, of the family.[16] Legal support has the following characteristics: (1) It is personal,
159). If there is no minor-beneficiary, it will subsist until 10 years and within this based on family ties which bind the obligor and the obligee; (2) It is
period, the heirs cannot partition the same except when there are compelling intransmissible; (3) It cannot be renounced; (4) It cannot be compromised; (5) It
reasons which will justify the partition. This rule applies regardless of whoever is free from attachment or execution; (6) It is reciprocal; (7) It is variable in
owns the property or who constituted the family home.[15] (Emphasis supplied) amount.[17]

The rule in Article 159 of the Family Code may thus be expressed in this wise: If Professor Pineda is of the view that grandchildren cannot demand support
there are beneficiaries who survive and are living in the family home, it will directly from their grandparents if they have parents (ascendants of nearest
continue for 10 years, unless at the expiration of 10 years, there is still a minor degree) who are capable of supporting them. This is so because we have to
beneficiary, in which case the family home continues until that beneficiary follow the order of support under Art. 199.[18] We agree with this view.
becomes of age.
The reasons behind Art. 199 as explained by Pineda and Tolentino: the closer the
It may be deduced from the view of Dr. Tolentino that as a general rule, the relationship of the relatives, the stronger the tie that binds them. Thus, the
family home may be preserved for a minimum of 10 years following the death of obligation to support under Art. 199 which outlines the order of liability for
the spouses or the unmarried family head who constituted the family home, or of support is imposed first upon the shoulders of the closer relatives and only in
the spouse who consented to the constitution of his or her separate property as their default is the obligation moved to the next nearer relatives and so on.
family home. After 10 years and a minor beneficiary still lives therein, the family
home shall be preserved only until that minor beneficiary reaches the age of There is no showing that private respondent is without means to support his son;
majority. The intention of the law is to safeguard and protect the interests of neither is there any evidence to prove that petitioner, as the paternal
the minor beneficiary until he reaches legal age and would now be capable of grandmother, was willing to voluntarily provide for her grandsons legal
supporting himself. However, three requisites must concur before a minor support. On the contrary, herein petitioner filed for the partition of the property
beneficiary is entitled to the benefits of Art. 159: (1) the relationship enumerated which shows an intention to dissolve the family home, since there is no more
in Art. 154 of the Family Code; (2) they live in the family home, and (3) they are reason for its existence after the 10-year period ended in 1997.
dependent for legal support upon the head of the family. With this finding, there is no legal impediment to partition the subject property.
Thus, the issue for resolution now is whether Marcelino Lorenzo R. Dario IV, the
minor son of private respondent, can be considered as a beneficiary under Article The law does not encourage co-ownerships among individuals as oftentimes it
154 of the Family Code. results in inequitable situations such as in the instant case. Co-owners should be
afforded every available opportunity to divide their co-owned property to
As to the first requisite, the beneficiaries of the family home are: (1) The husband prevent these situations from arising.
and wife, or an unmarried person who is the head of a family; and (2) Their As we ruled in Santos v. Santos,[19] no co-owner ought to be compelled to stay in
parents, ascendants, descendants, brothers and sisters, whether the relationship a co-ownership indefinitely, and may insist on partition on the common property
be legitimate or illegitimate. The term descendants contemplates all descendants at any time. An action to demand partition is imprescriptible or cannot be barred
of the person or persons who constituted the family home without distinction; by laches. Each co-owner may demand at any time the partition of the common
hence, it must necessarily include the grandchildren and great grandchildren of property.[20]
the spouses who constitute a family home. Ubi lex non distinguit nec nos
distinguire debemos. Where the law does not distinguish, we should not Since the parties were unable to agree on a partition, the court a quo should
distinguish. Thus, private respondents minor son, who is also the grandchild of have ordered a partition by commissioners pursuant to Section 3, Rule 69 of the
deceased Marcelino V. Dario satisfies the first requisite. Rules of Court.Not more than three competent and disinterested persons should
be appointed as commissioners to make the partition, commanding them to set
As to the second requisite, minor beneficiaries must be actually living in the off to the plaintiff and to each party in interest such part and proportion of the
family home to avail of the benefits derived from Art. 159. Marcelino Lorenzo R. property as the court shall direct.
Dario IV, also known as Ino, the son of private respondent and grandson of the
decedent Marcelino V. Dario, has been living in the family home since 1994, or When it is made to appear to the commissioners that the real estate, or a portion
within 10 years from the death of the decedent, hence, he satisfies the second thereof, cannot be divided without great prejudice to the interest of the parties,
requisite. the court may order it assigned to one of the parties willing to take the same,
provided he pays to the other parties such sum or sums of money as the
commissioners deem equitable, unless one of the parties interested ask that the before the Regional Trial Court (RTC) of Tarlac City. In her Complaint, Jinky prayed
property be sold instead of being so assigned, in which case the court shall order that judgment be rendered:
the commissioners to sell the real estate at public sale, and the commissioners
shall sell the same accordingly.[21] (a) Ordering defendant to recognize plaintiff Joanne Rodjin Diaz as his daughter.

The partition of the subject property should be made in accordance with the rule (b) Ordering defendant to give plaintiff monthly support of P20,000.00 pendente
embodied in Art. 996 of the Civil Code.[22] Under the law of intestate succession, if lite and thereafter to fix monthly support.
the widow and legitimate children survive, the widow has the same share as that
of each of the children. However, since only one-half of the conjugal property (c) Ordering the defendant to pay plaintiff attorney’s fees in the sum
which is owned by the decedent is to be allocated to the legal and compulsory of P100,000.00.
heirs (the other half to be given exclusively to the surviving spouse as her
conjugal share of the property), the widow will have the same share as each of (d) Granting plaintiff such other measure of relief as maybe just and equitable in
her two surviving children. Hence, the respective shares of the subject property, the premises.4
based on the law on intestate succession are: (1) Perla Generosa Dario, 4/6; (2)
Marcelino Marc G. Dario II, 1/6 and (3) Marcelino G. Dario III, 1/6. As alleged by Jinky in her Complaint in November 1993 in Tarlac City, she and
In Vda. de Daffon v. Court of Appeals,[23] we held that an action for partition is at Rogelio got acquainted. This developed into friendship and later blossomed into
once an action for declaration of co-ownership and for segregation and love. At this time, Jinky was already married to a Japanese national, Hasegawa
conveyance of a determinate portion of the properties involved. If the court after Katsuo, in a civil wedding solemnized on 19 February 1993 by Municipal Trial
trial should find the existence of co-ownership among the parties, the court may Court Judge Panfilo V. Valdez.5
and should order the partition of the properties in the same action.[24]
From January 1994 to September 1998, Jinky and Rogelio cohabited and lived
WHEREFORE, the petition is GRANTED. The Resolution of the Court of Appeals in together at Fairlane Subdivision, and later at Capitol Garden, Tarlac City.
CA-G.R. CV No. 80680 dated December 9, 2005, is REVERSED and SET ASIDE. The
case is REMANDED to the Regional Trial Court of Quezon City, Branch 78, who is From this live-in relationship, minor Joanne Rodjin Diaz was conceived and on 25
directed to conduct a PARTITION BY COMMISSIONERS and effect the actual February 1998 was born at the Central Luzon Doctors’ Hospital, Tarlac City.
physical partition of the subject property, as well as the improvements that lie
therein, in the following manner: Perla G. Dario, 4/6; Marcelino Marc G. Dario, Rogelio brought Jinky to the hospital and took minor Joanne and Jinky home after
1/6 and Marcelino G. Dario III, 1/6. The trial court is DIRECTED to appoint not delivery. Rogelio paid all the hospital bills and the baptismal expenses and
more than three (3) competent and disinterested persons, who should determine provided for all of minor Joanne’s needs – recognizing the child as his.
the technical metes and bounds of the property and the proper share
appertaining to each heir, including the improvements, in accordance with Rule In September 1998, Rogelio abandoned minor Joanne and Jinky, and stopped
69 of the Rules of Court. When it is made to the commissioners that the real supporting minor Joanne, falsely alleging that he is not the father of the child.
estate, or a portion thereof, cannot be divided without great prejudice to the
interest of the parties, the court a quo may order it assigned to one of the parties Rogelio, despite Jinky’s remonstrance, failed and refused and continued failing
willing to take the same, provided he pays to the other parties such sum or sums and refusing to give support for the child and to acknowledge her as his
of money as the commissioners deem equitable, unless one of the parties daughter, thus leading to the filing of the heretofore adverted complaint.
interested ask that the property be sold instead of being so assigned, in which
case the court shall order the commissioners to sell the real estate at public sale, After summons had been duly served upon Rogelio, the latter failed to file any
and the commissioners shall sell the same accordingly, and thereafter distribute responsive pleading despite repeated motions for extension, prompting the trial
the proceeds of the sale appertaining to the just share of each heir. No court to declare him in default in its Order dated 7 April 1999. Rogelio’s Answer
pronouncement as to costs. with Counterclaim and Special and Affirmative Defenses was received by the trial
court only on 15 April 1999. Jinky was allowed to present her evidence ex
SO ORDERED parte on the basis of which the trial court on 23 April 1999 rendered a decision
granting the reliefs prayed for in the complaint.

In its Decision6 dated 23 April 1999, the RTC held:


G.R. No. 171713 December 17, 2007
WHEREFORE, judgment is hereby rendered:
ESTATE OF ROGELIO G. ONG, petitioner,
vs. 1. Ordering defendant to recognize plaintiff as his natural child;
Minor JOANNE RODJIN DIAZ, Represented by Her Mother and Guardian, Jinky
C. Diaz, respondent. 2. Ordering defendant to provide plaintiff with a monthly support of P10,000.00
and further
DECISION
3. Ordering defendant to pay reasonable attorney’s fees in the amount
CHICO-NAZARIO, J.: of P5,000.00 and the cost of the suit.

This is a petition for Review on Certiorari under Rule 45 of the Revised Rules of On 28 April 1999, Rogelio filed a motion to lift the order of default and a motion
Civil Procedure assailing (1) the Decision1 of the Court of Appeals dated 23 for reconsideration seeking the court’s understanding, as he was then in a
November 2005 and (2) the Resolution2 of the same court dated 1 March 2006 quandary on what to do to find a solution to a very difficult problem of his life.7
denying petitioner’s Motion for Reconsideration in CA-G.R. CV No. 70125.
On 29 April 1999, Rogelio filed a motion for new trial with prayer that the
A Complaint3 for compulsory recognition with prayer for support pending decision of the trial court dated 23 April 1999 be vacated and the case be
litigation was filed by minor Joanne Rodjin Diaz (Joanne), represented by her considered for trial de novo pursuant to the provisions of Section 6, Rule 37 of
mother and guardian, Jinky C. Diaz (Jinky), against Rogelio G. Ong (Rogelio) the 1997 Rules of Civil Procedure.8
On 16 June 1999, the RTC issued an Order granting Rogelio’s Motion for New On the strength of this evidence, the Court finds that Joanne Rodjin is the child of
Trial: Jinky and defendant Rogelio Ong and it is but just that the latter should support
plaintiff.10
WHEREFORE, finding defendant’s motion for new trial to be impressed with
merit, the same is hereby granted. On 15 December 2000, the RTC rendered a decision and disposed:

The Order of this court declaring defendant in default and the decision is this WHEREFORE, judgment is hereby rendered declaring Joanne Rodjin Diaz to be
court dated April 23, 1999 are hereby set aside but the evidence adduced shall the illegitimate child of defendant Rogelio Ong with plaintiff Jinky Diaz. The Order
remain in record, subject to cross-examination by defendant at the appropriate of this Court awarding support pendente lite dated June 15, 1999, is hereby
stage of the proceedings. affirmed and that the support should continue until Joanne Rodjin Diaz shall have
reached majority age.11
In the meantime defendant’s answer is hereby admitted, subject to the right of
plaintiff to file a reply and/or answer to defendant’s counterclaim within the Rogelio filed a Motion for Reconsideration, which was denied for lack of merit in
period fixed by the Rules of Court. an Order of the trial court dated 19 January 2001.12 From the denial of his Motion
for Reconsideration, Rogelio appealed to the Court of Appeals. After all the
Acting on plaintiff’s application for support pendente lite which this court finds to responsive pleadings had been filed, the case was submitted for decision and
be warranted, defendant is hereby ordered to pay to plaintiff immediately the ordered re-raffled to another Justice for study and report as early as 12 July
sum of P2,000.00 a month from January 15, 1999 to May 1999 as support 2002.13
pendente lite in arrears and the amount of P4,000.00 every month thereafter as
regular support pendente lite during the pendency of this case.9 During the pendency of the case with the Court of Appeals, Rogelio’s counsel
filed a manifestation informing the Court that Rogelio died on 21 February 2005;
The RTC finally held: hence, a Notice of Substitution was filed by said counsel praying that Rogelio be
substituted in the case by the Estate of Rogelio Ong,14 which motion was
The only issue to be resolved is whether or not the defendant is the father of the accordingly granted by the Court of Appeals.15
plaintiff Joanne Rodjin Diaz.
In a Decision dated 23 November 2005, the Court of Appeals held:
Since it was duly established that plaintiff’s mother Jinky Diaz was married at the
time of the birth of Joanne Rodjin Diaz, the law presumes that Joanne is a WHEREFORE, premises considered, the present appeal is hereby GRANTED. The
legitimate child of the spouses Hasegawa Katsuo and Jinky Diaz (Article 164, appealed Decision dated December 15, 2000 of the Regional Trial Court of Tarlac,
Family Code). The child is still presumed legitimate even if the mother may have Tarlac, Branch 63 in Civil Case No. 8799 is hereby SET ASIDE. The case is hereby
declared against her legitimacy (Article 167, Ibid). REMANDED to the court a quo for the issuance of an order directing the parties
to make arrangements for DNA analysis for the purpose of determining the
The legitimacy of a child may be impugned only on the following grounds paternity of plaintiff minor Joanne Rodjin Diaz, upon consultation and in
provided for in Article 166 of the same Code. Paragraph 1 of the said Article coordination with laboratories and experts on the field of DNA analysis.
provides that there must be physical impossibility for the husband to have sexual
intercourse with the wife within the first 120 days of the 300 days following the No pronouncement as to costs.16
birth of the child because of –
Petitioner filed a Motion for Reconsideration which was denied by the Court of
a) physical incapacity of the husband to have sexual intercourse with his wife; Appeals in a Resolution dated 1 March 2006.

b) husband and wife were living separately in such a way that sexual intercourse In disposing as it did, the Court of Appeals justified its Decision as follows:
was not possible;
In this case, records showed that the late defendant-appellant Rogelio G. Ong, in
c) serious illness of the husband which prevented sexual intercourse. the early stage of the proceedings volunteered and suggested that he and
plaintiff’s mother submit themselves to a DNA or blood testing to settle the issue
It was established by evidence that the husband is a Japanese national and that of paternity, as a sign of good faith. However, the trial court did not consider
he was living outside of the country (TSN, Aug. 27, 1999, page 5) and he comes resorting to this modern scientific procedure notwithstanding the repeated
home only once a year. Both evidence of the parties proved that the husband denials of defendant that he is the biological father of the plaintiff even as he
was outside the country and no evidence was shown that he ever arrived in the admitted having actual sexual relations with plaintiff’s mother. We believe that
country in the year 1997 preceding the birth of plaintiff Joanne Rodjin Diaz. DNA paternity testing, as current jurisprudence affirms, would be the most
reliable and effective method of settling the present paternity dispute.
While it may also be argued that plaintiff Jinky had a relationship with another Considering, however, the untimely demise of defendant-appellant during the
man before she met the defendant, there is no evidence that she also had sexual pendency of this appeal, the trial court, in consultation with out laboratories and
relations with other men on or about the conception of Joanne Rodjin. Joanne experts on the field of DNA analysis, can possibly avail of such procedure with
Rodjin was her second child (see Exh. "A"), so her first child, a certain Nicole whatever remaining DNA samples from the deceased defendant alleged to be the
(according to defendant) must have a different father or may be the son of putative father of plaintiff minor whose illegitimate filiations is the subject of this
Hasegawa K[u]tsuo. action for support.17

The defendant admitted having been the one who shouldered the hospital bills Hence, this petition which raises the following issues for resolution:
representing the expenses in connection with the birth of plaintiff. It is an
evidence of admission that he is the real father of plaintiff. Defendant also I
admitted that even when he stopped going out with Jinky, he and Jinky used to
go to motels even after 1996. Defendant also admitted that on some instances, WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT DID NOT DISMISS
he still used to see Jinky after the birth of Joanne Rodjin. Defendant was even the RESPONDENT’S COMPLAINT FOR COMPULSORY RECOGNITION DESPITE ITS
one who fetched Jinky after she gave birth to Joanne. FINDING THAT THE EVIDENCE PRESENTED FAILED TO PROVE THAT ROGELIO G.
ONG WAS HER FATHER.
II one hundred and twenty days of the three hundred which preceded the birth of
the child.
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT DID NOT DECLARE
RESPONDENT AS THE LEGITIMATE CHILD OF JINKY C. DIAZ AND HER JAPANESE This physical impossibility may be caused:
HUSBAND, CONSIDERING THAT RESPONDENT FAILED TO REBUT THE
PRESUMPTION OF HER LEGITIMACY. 1) By the impotence of the husband;

III 2) By the fact that husband and wife were living separately in such a way that
access was not possible;
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT REMANDED THE
CASE TO THE COURT A QUO FOR DNA ANALYSIS DESPITE THE FACT THAT IT IS NO 3) By the serious illness of the husband.24
LONGER FEASIBLE DUE TO THE DEATH OF ROGELIO G. ONG.18
The relevant provisions of the Family Code provide as follows:
Petitioner prays that the present petition be given due course and the Decision of
the Court of Appeals dated November 23, 2005 be modified, by setting aside the ART. 172. The filiation of legitimate children is established by any of the
judgment remanding the case to the trial court for DNA testing analysis, by following:
dismissing the complaint of minor Joanne for compulsory recognition, and by
declaring the minor as the legitimate child of Jinky and Hasegawa Katsuo.19 (1) The record of birth appearing in the civil register or a final judgment; or

From among the issues presented for our disposition, this Court finds it prudent (2) An admission of legitimate filiation in a public document or a private
to concentrate its attention on the third one, the propriety of the appellate handwritten instrument and signed by the parent concerned.
court’s decision remanding the case to the trial court for the conduct of DNA
testing. Considering that a definitive result of the DNA testing will decisively lay In the absence of the foregoing evidence, the legitimate filiation shall be proved
to rest the issue of the filiation of minor Joanne, we see no reason to resolve the by:
first two issues raised by the petitioner as they will be rendered moot by the
result of the DNA testing. (1) The open and continuous possession of the status of a legitimate child; or

As a whole, the present petition calls for the determination of filiation of minor (2) Any other means allowed by the Rules of Court and special laws.
Joanne for purposes of support in favor of the said minor.
ART. 175. Illegitimate children may establish their illegitimate filiation in the
Filiation proceedings are usually filed not just to adjudicate paternity but also to same way and on the same evidence as legitimate children.
secure a legal right associated with paternity, such as citizenship, support (as in
the present case), or inheritance. The burden of proving paternity is on the There had been divergent and incongruent statements and assertions bandied
person who alleges that the putative father is the biological father of the child. about by the parties to the present petition. But with the advancement in the
There are four significant procedural aspects of a traditional paternity action field of genetics, and the availability of new technology, it can now be
which parties have to face: a prima facie case, affirmative defenses, presumption determined with reasonable certainty whether Rogelio is the biological father of
of legitimacy, and physical resemblance between the putative father and child.20 the minor, through DNA testing.

A child born to a husband and wife during a valid marriage is presumed DNA is the fundamental building block of a person’s entire genetic make-up. DNA
legitimate.21 As a guaranty in favor of the child and to protect his status of is found in all human cells and is the same in every cell of the same person.
legitimacy, Article 167 of the Family Code provides: Genetic identity is unique. Hence, a person’s DNA profile can determine his
identity.25
Article 167. The children shall be considered legitimate although the mother may
have declared against its legitimacy or may have been sentenced as an DNA analysis is a procedure in which DNA extracted from a biological sample
adulteress. obtained from an individual is examined. The DNA is processed to generate a
pattern, or a DNA profile, for the individual from whom the sample is taken. This
The law requires that every reasonable presumption be made in favor of DNA profile is unique for each person, except for identical twins.
legitimacy. We explained the rationale of this rule in the recent case of Cabatania
v. Court of Appeals22: Everyone is born with a distinct genetic blueprint called DNA (deoxyribonucleic
acid). It is exclusive to an individual (except in the rare occurrence of identical
The presumption of legitimacy does not only flow out of a declaration in the twins that share a single, fertilized egg), and DNA is unchanging throughout life.
statute but is based on the broad principles of natural justice and the supposed Being a component of every cell in the human body, the DNA of an individual’s
virtue of the mother. The presumption is grounded on the policy to protect the blood is the very DNA in his or her skin cells, hair follicles, muscles, semen,
innocent offspring from the odium of illegitimacy. samples from buccal swabs, saliva, or other body parts.

The presumption of legitimacy of the child, however, is not conclusive and The chemical structure of DNA has four bases. They are known as A (Adenine), G
consequently, may be overthrown by evidence to the contrary. Hence, Article (guanine), C (cystosine) and T (thymine). The order in which the four bases
255 of the New Civil Code23 provides: appear in an individual’s DNA determines his or her physical make up. And since
DNA is a double stranded molecule, it is composed of two specific paired bases,
Article 255. Children born after one hundred and eighty days following the A-T or T-A and G-C or C-G. These are called "genes."
celebration of the marriage, and before three hundred days following its
dissolution or the separation of the spouses shall be presumed to be legitimate. Every gene has a certain number of the above base pairs distributed in a
particular sequence. This gives a person his or her genetic code. Somewhere in
Against this presumption no evidence shall be admitted other than that of the the DNA framework, nonetheless, are sections that differ. They are known as
physical impossibility of the husband’s having access to his wife within the first "polymorphic loci," which are the areas analyzed in DNA typing (profiling, tests,
fingerprinting). In other words, DNA typing simply means determining the for minor Joanne. Our articulation in Agustin v. Court of Appeals27 is particularly
"polymorphic loci." relevant, thus:

How is DNA typing performed? From a DNA sample obtained or extracted, a Our faith in DNA testing, however, was not quite so steadfast in the previous
molecular biologist may proceed to analyze it in several ways. There are five (5) decade. In Pe Lim v. Court of Appeals (336 Phil. 741, 270 SCRA 1), promulgated in
techniques to conduct DNA typing. They are: the RFLP (restriction fragment 1997, we cautioned against the use of DNA because "DNA, being a relatively new
length polymorphism); "reverse dot blot" or HLA DQ a/Pm loci which was used in science, (had) not as yet been accorded official recognition by our courts.
287 cases that were admitted as evidence by 37 courts in the U.S. as of Paternity (would) still have to be resolved by such conventional evidence as the
November 1994; DNA process; VNTR (variable number tandem repeats); and the relevant incriminating acts,verbal and written, by the putative father."
most recent which is known as the PCR-([polymerase] chain reaction) based STR
(short tandem repeats) method which, as of 1996, was availed of by most In 2001, however, we opened the possibility of admitting DNA as evidence of
forensic laboratories in the world. PCR is the process of replicating or copying parentage, as enunciated in Tijing v. Court of Appeals [G.R. No. 125901, 8 March
DNA in an evidence sample a million times through repeated cycling of a reaction 2001, 354 SCRA 17]:
involving the so-called DNA polymerize enzyme. STR, on the other hand, takes
measurements in 13 separate places and can match two (2) samples with a x x x Parentage will still be resolved using conventional methods unless we adopt
reported theoretical error rate of less than one (1) in a trillion. the modern and scientific ways available. Fortunately, we have now the facility
and expertise in using DNA test for identification and parentage testing. The
Just like in fingerprint analysis, in DNA typing, "matches" are determined. To University of the Philippines Natural Science Research Institute (UP-NSRI) DNA
illustrate, when DNA or fingerprint tests are done to identify a suspect in a Analysis Laboratory has now the capability to conduct DNA typing using short
criminal case, the evidence collected from the crime scene is compared with the tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a
"known" print. If a substantial amount of the identifying features are the same, child/person has two (2) copies, one copy from the mother and the other from
the DNA or fingerprint is deemed to be a match. But then, even if only one the father. The DNA from the mother, the alleged father and child are analyzed
feature of the DNA or fingerprint is different, it is deemed not to have come from to establish parentage. Of course, being a novel scientific technique, the use of
the suspect. DNA test as evidence is still open to challenge. Eventually, as the appropriate
case comes, courts should not hesitate to rule on the admissibility of DNA
As earlier stated, certain regions of human DNA show variations between people. evidence. For it was said, that courts should apply the results of science when
In each of these regions, a person possesses two genetic types called "allele," one competently obtained in aid of situations presented, since to reject said results is
inherited from each parent. In [a] paternity test, the forensic scientist looks at a to deny progress.
number of these variable regions in an individual to produce a DNA profile.
Comparing next the DNA profiles of the mother and child, it is possible to The first real breakthrough of DNA as admissible and authoritative evidence in
determine which half of the child’s DNA was inherited from the mother. The Philippine jurisprudence came in 2002 with out en banc decision in People v.
other half must have been inherited from the biological father. The alleged Vallejo [G.R. No. 144656, 9 May 2002, 382 SCRA 192] where the rape and murder
father’s profile is then examined to ascertain whether he has the DNA types in his victim’s DNA samples from the bloodstained clothes of the accused were
profile, which match the paternal types in the child. If the man’s DNA types do admitted in evidence. We reasoned that "the purpose of DNA testing (was) to
not match that of the child, the man is excluded as the father. If the DNA types ascertain whether an association exist(ed) between the evidence sample and the
match, then he is not excluded as the father.26 reference sample. The samples collected (were) subjected to various chemical
processes to establish their profile.
In the newly promulgated rules on DNA evidence it is provided:
A year later, in People v. Janson [G.R. No. 125938, 4 April 2003, 400 SCRA 584],
SEC. 3 Definition of Terms. – For purposes of this Rule, the following terms shall we acquitted the accused charged with rape for lack of evidence because "doubts
be defined as follows: persist(ed) in our mind as to who (were) the real malefactors. Yes, a complex
offense (had) been perpetrated but who (were) the perpetrators? How we wish
xxxx we had DNA or other scientific evidence to still our doubts."

(c) "DNA evidence" constitutes the totality of the DNA profiles, results and other In 2004, in Tecson, et al. v. COMELEC [G.R. Nos. 161434, 161634 and 161824, 3
genetic information directly generated from DNA testing of biological samples; March 2004, 424 SCRA 277], where the Court en banc was faced with the issue of
filiation of then presidential candidate Fernando Poe, Jr., we stated:
(d) "DNA profile" means genetic information derived from DNA testing of a
biological sample obtained from a person, which biological sample is clearly In case proof of filiation or paternity would be unlikely to satisfactorily establish
identifiable as originating from that person; or would be difficult to obtain, DNA testing, which examines genetic codes
obtained from body cells of the illegitimate child and any physical residue of the
(e) "DNA testing" means verified and credible scientific methods which include long dead parent could be resorted to. A positive match would clear up filiation
the extraction of DNA from biological samples, the generation of DNA profiles or paternity. In Tijing v. Court of Appeals, this Court has acknowledged the strong
and the comparison of the information obtained from the DNA testing of weight of DNA testing...
biological samples for the purpose of determining, with reasonable certainty,
whether or not the DNA obtained from two or more distinct biological samples Moreover, in our en banc decision in People v. Yatar [G.R. No. 150224, 19 May
originates from the same person (direct identification) or if the biological samples 2004, 428 SCRA 504], we affirmed the conviction of the accused for rape with
originate from related persons (kinship analysis); and homicide, the principal evidence for which included DNA test results. x x x.

(f) "Probability of Parentage" means the numerical estimate for the likelihood of Coming now to the issue of remand of the case to the trial court, petitioner
parentage of a putative parent compared with the probability of a random match questions the appropriateness of the order by the Court of Appeals directing the
of two unrelated individuals in a given population. remand of the case to the RTC for DNA testing given that petitioner has already
died. Petitioner argues that a remand of the case to the RTC for DNA analysis is
Amidst the protestation of petitioner against the DNA analysis, the resolution no longer feasible due to the death of Rogelio. To our mind, the alleged
thereof may provide the definitive key to the resolution of the issue of support impossibility of complying with the order of remand for purposes of DNA testing
is more ostensible than real. Petitioner’s argument is without basis especially as
the New Rules on DNA Evidence28 allows the conduct of DNA testing, either motu of evidence gathering. We therefore take this opportunity to forcefully reiterate
proprio or upon application of any person who has a legal interest in the matter our stand that DNA testing is a valid means of determining paternity.
in litigation, thus:
WHEREFORE, the instant petition is DENIED for lack of merit. The Decision of the
SEC. 4. Application for DNA Testing Order. – The appropriate court may, at any Court of Appeals dated 23 November 2005 and its Resolution dated 1 March
time, either motu proprio or on application of any person who has a legal interest 2006 are AFFIRMED. Costs against petitioner.
in the matter in litigation, order a DNA testing. Such order shall issue after due
hearing and notice to the parties upon a showing of the following: SO ORDERED.

(a) A biological sample exists that is relevant to the case; G.R. No. 165166 August 15, 2012

(b) The biological sample: (i) was not previously subjected to the type of DNA CHARLES GOTARDO, Petitioner,
testing now requested; or (ii) was previously subjected to DNA testing, but the vs.
results may require confirmation for good reasons; DIVINA BULING, Respondent.

(c) The DNA testing uses a scientifically valid technique; VILLARAMA, JR.,*

(d) The DNA testing has the scientific potential to produce new information that DECISION
is relevant to the proper resolution of the case; and
BRION, J.:
(e) The existence of other factors, if any, which the court may consider as
potentially affecting the accuracy or integrity of the DNA testing. We resolve the petition for review on certiorari, 1 filed by petitioner Charles
Gotardo, to challenge the March 5, 2004 decision2 and the July 27, 2004
From the foregoing, it can be said that the death of the petitioner does not ipso resolution3 of the Court of Appeals (CA) in CA GR CV No. 76326. The CA decision
facto negate the application of DNA testing for as long as there exist appropriate ordered the petitioner to recognize and provide legal support to his minor son,
biological samples of his DNA. Gliffze 0. Buling. The CA resolution denied the petitioner's subsequent motion for
reconsideration.
As defined above, the term "biological sample" means any organic material
originating from a person’s body, even if found in inanimate objects, that is FACTUAL BACKGROUND
susceptible to DNA testing. This includes blood, saliva, and other body fluids,
tissues, hairs and bones.29 On September 6, 1995, respondent Divina Buling filed a complaint with the
Regional Trial Court (RTC) of Maasin, Southern Leyte, Branch 25, for compulsory
Thus, even if Rogelio already died, any of the biological samples as enumerated recognition and support pendente lite, claiming that the petitioner is the father of
above as may be available, may be used for DNA testing. In this case, petitioner her child Gliffze.4
has not shown the impossibility of obtaining an appropriate biological sample
that can be utilized for the conduct of DNA testing. In his answer, the petitioner denied the imputed paternity of Gliffze.5 For the
parties’ failure to amicably settle the dispute, the RTC terminated the pre-trial
And even the death of Rogelio cannot bar the conduct of DNA testing. In People proceedings.6 Trial on the merits ensued.
v. Umanito,30 citing Tecson v. Commission on Elections,31 this Court held:
The respondent testified for herself and presented Rodulfo Lopez as witness.
The 2004 case of Tecson v. Commission on Elections [G.R. No. 161434, 3 March Evidence for the respondent showed that she met the petitioner on December 1,
2004, 424 SCRA 277] likewise reiterated the acceptance of DNA testing in our 1992 at the Philippine Commercial and Industrial Bank, Maasin, Southern Leyte
jurisdiction in this wise: "[i]n case proof of filiation or paternity would be unlikely branch where she had been hired as a casual employee, while the petitioner
to satisfactorily establish or would be difficult to obtain, DNA testing, which worked as accounting supervisor.7 The petitioner started courting the respondent
examines genetic codes obtained from body cells of the illegitimate child and any in the third week of December 1992 and they became sweethearts in the last
physical residue of the long dead parent could be resorted to." week of January 1993.8 The petitioner gave the respondent greeting cards on
special occasions, such as on Valentine’s Day and her birthday; she reciprocated
It is obvious to the Court that the determination of whether appellant is the his love and took care of him when he was ill.9
father of AAA’s child, which may be accomplished through DNA testing, is
material to the fair and correct adjudication of the instant appeal. Under Section Sometime in September 1993, the petitioner started intimate sexual relations
4 of the Rules, the courts are authorized, after due hearing and notice, motu with the respondent in the former’s rented room in the boarding house managed
proprio to order a DNA testing. However, while this Court retains jurisdiction over by Rodulfo, the respondent’s uncle, on Tomas Oppus St., Agbao, Maasin,
the case at bar, capacitated as it is to receive and act on the matter in Southern Leyte.10 The petitioner rented the room from March 1, 1993 to August
controversy, the Supreme Court is not a trier of facts and does not, in the course 30, 1994.11 The sexual encounters occurred twice a month and became more
of daily routine, conduct hearings. Hence, it would be more appropriate that the frequent in June 1994; eventually, on August 8, 1994, the respondent found out
case be remanded to the RTC for reception of evidence in appropriate hearings, that she was pregnant.12 When told of the pregnancy, the petitioner was happy
with due notice to the parties. (Emphasis supplied.) and made plans to marry the respondent.13 They in fact applied for a marriage
license.14 The petitioner even inquired about the costs of a wedding reception
As we have declared in the said case of Agustin v. Court of Appeals32: and the bridal gown.15 Subsequently, however, the petitioner backed out of the
wedding plans.16
x x x [F]or too long, illegitimate children have been marginalized by fathers who
choose to deny their existence. The growing sophistication of DNA testing The respondent responded by filing a complaint with the Municipal Trial Court of
technology finally provides a much needed equalizer for such ostracized and Maasin, Southern Leyte for damages against the petitioner for breach of promise
abandoned progeny. We have long believed in the merits of DNA testing and to marry.17 Later, however, the petitioner and the respondent amicably settled
have repeatedly expressed as much in the past. This case comes at a perfect time the case.18
when DNA testing has finally evolved into a dependable and authoritative form
The respondent gave birth to their son Gliffze on March 9, 1995.19 When the OUR RULING
petitioner did not show up and failed to provide support to Gliffze, the
respondent sent him a letter on July 24, 1995 demanding recognition of and We do not find any reversible error in the CA’s ruling.
support for their child.20 When the petitioner did not answer the demand, the
respondent filed her complaint for compulsory recognition and support pendente We have recognized that "[f]iliation proceedings are usually filed not just to
lite.21 adjudicate paternity but also to secure a legal right associated with paternity,
such as citizenship, support (as in this case) or inheritance. [In paternity cases,
The petitioner took the witness stand and testified for himself. He denied the the burden of proof] is on the person who alleges that the putative father is the
imputed paternity,22 claiming that he first had sexual contact with the respondent biological father of the child."31
in the first week of August 1994 and she could not have been pregnant for twelve
(12) weeks (or three (3) months) when he was informed of the pregnancy on One can prove filiation, either legitimate or illegitimate, through the record of
September 15, 1994.23 birth appearing in the civil register or a final judgment, an admission of filiation in
a public document or a private handwritten instrument and signed by the parent
During the pendency of the case, the RTC, on the respondent’s motion,24 granted concerned, or the open and continuous possession of the status of a legitimate
a ₱2,000.00 monthly child support, retroactive from March 1995.25 or illegitimate child, or any other means allowed by the Rules of Court and special
laws.32 We have held that such other proof of one's filiation may be a "baptismal
THE RTC RULING certificate, a judicial admission, a family bible in which his name has been
entered, common reputation respecting [his] pedigree, admission by silence, the
In its June 25, 2002 decision, the RTC dismissed the complaint for insufficiency of [testimonies] of witnesses, and other kinds of proof admissible under Rule 130 of
evidence proving Gliffze’s filiation. It found the respondent’s testimony the Rules of Court."33
inconsistent on the question of when she had her first sexual contact with the
petitioner, i.e., "September 1993" in her direct testimony while "last week of In Herrera v. Alba,34 we stressed that there are four significant procedural aspects
January 1993" during her cross-testimony, and her reason for engaging in sexual of a traditional paternity action that parties have to face: a prima facie case,
contact even after she had refused the petitioner’s initial marriage proposal. It affirmative defenses, presumption of legitimacy, and physical resemblance
ordered the respondent to return the amount of support pendente between the putative father and the child.35 We explained that a prima facie case
lite erroneously awarded, and to pay ₱ 10,000.00 as attorney’s fees.26 exists if a woman declares — supported by corroborative proof — that she had
sexual relations with the putative father; at this point, the burden of evidence
The respondent appealed the RTC ruling to the CA.27 shifts to the putative father.36 We explained further that the two affirmative
defenses available to the putative father are: (1) incapability of sexual relations
THE CA RULING with the mother due to either physical absence or impotency, or (2) that the
mother had sexual relations with other men at the time of conception.37
In its March 5, 2004 decision, the CA departed from the RTC's appreciation of the
respondent’s testimony, concluding that the latter merely made an honest In this case, the respondent established a prima facie case that the petitioner is
mistake in her understanding of the questions of the petitioner’s counsel. It the putative father of Gliffze through testimony that she had been sexually
noted that the petitioner and the respondent had sexual relationship even before involved only with one man, the petitioner, at the time of her
August 1994; that the respondent had only one boyfriend, the petitioner, from conception.38Rodulfo corroborated her testimony that the petitioner and the
January 1993 to August 1994; and that the petitioner’s allegation that the respondent had intimate relationship.39
respondent had previous relationships with other men remained
unsubstantiated. The CA consequently set aside the RTC decision and ordered On the other hand, the petitioner did not deny that he had sexual encounters
the petitioner to recognize his minor son Gliffze. It also reinstated the RTC order with the respondent, only that it occurred on a much later date than the
granting a ₱ 2,000.00 monthly child support.28 respondent asserted, such that it was physically impossible for the respondent to
have been three (3) months pregnant already in September 1994 when he was
When the CA denied29 the petitioner’s motion for reconsideration,30 the informed of the pregnancy.40 However, the petitioner failed to substantiate his
petitioner filed the present petition for review on certiorari. allegations of infidelity and insinuations of promiscuity. His allegations, therefore,
cannot be given credence for lack of evidentiary support. The petitioner’s denial
THE PETITION cannot overcome the respondent’s clear and categorical assertions.

The petitioner argues that the CA committed a reversible error in rejecting the The petitioner, as the RTC did, made much of the variance between the
RTC’s appreciation of the respondent’s testimony, and that the evidence on respondent’s direct testimony regarding their first sexual contact as "sometime
record is insufficient to prove paternity. in September 1993" and her cross-testimony when she stated that their first
sexual contact was "last week of January 1993," as follows:
THE CASE FOR THE RESPONDENT
ATTY. GO CINCO:
The respondent submits that the CA correctly explained that the inconsistency in
the respondent’s testimony was due to an incorrect appreciation of the When did the defendant, according to you, start courting you?
questions asked, and that the record is replete with evidence proving that the
petitioner was her lover and that they had several intimate sexual encounters A Third week of December 1992.
during their relationship, resulting in her pregnancy and Gliffze’s birth on March
9, 1995. Q And you accepted him?

THE ISSUE A Last week of January 1993.

The sole issue before us is whether the CA committed a reversible error when it Q And by October you already had your sexual intercourse?
set aside the RTC’s findings and ordered the petitioner to recognize and provide
legal support to his minor son Gliffze. A Last week of January 1993.
COURT: What do you mean by accepting? her minor children LESTER

A I accepted his offer of love.41 EDWARD S. LIM, CANDICE

We find that the contradictions are for the most part more apparent than real, GRACE S. LIM, and MARIANO Promulgated:
having resulted from the failure of the respondent to comprehend the question
posed, but this misunderstanding was later corrected and satisfactorily S. LIM, III,
explained. Indeed, when confronted for her contradictory statements, the
respondent explained that that portion of the transcript of stenographic notes Respondents. October 30, 2009
was incorrect and she had brought it to the attention of Atty. Josefino Go Cinco
(her former counsel) but the latter took no action on the matter.42 x --------------------------------------------------------------------------------------- x

Jurisprudence teaches that in assessing the credibility of a witness, his testimony


must be considered in its entirety instead of in truncated parts. The technique in DECISION
deciphering a testimony is not to consider only its isolated parts and to anchor a
conclusion based on these parts. "In ascertaining the facts established by a CARPIO, J.:
witness, everything stated by him on direct, cross and redirect examinations
must be calibrated and considered."43 Evidently, the totality of the respondent's The Case
testimony positively and convincingly shows that no real inconsistency exists. The
respondent has consistently asserted that she started intimate sexual relations
with the petitioner sometime in September 1993.44 For review[1] is the Decision[2] of the Court of Appeals, dated 28 April 2003,
ordering petitioners Prudencio and Filomena Lim (petitioners) to provide legal
Since filiation is beyond question, support follows as a matter of obligation; a support to respondents Cheryl, Lester Edward, Candice Grace and Mariano III, all
parent is obliged to support his child, whether legitimate or surnamed Lim (respondents).
illegitimate.45 Support consists of everything indispensable for sustenance, The Facts
dwelling, clothing, medical attendance, education and transportation, in keeping
with the financial capacity of the family.46 Thus, the amount of support is variable
and, for this reason, no final judgment on the amount of support is made as the In 1979, respondent Cheryl S. Lim (Cheryl) married Edward Lim (Edward), son of
amount shall be in proportion to the resources or means of the giver and the petitioners. Cheryl bore Edward three children, respondents Lester Edward,
necessities of the recipient.47 It may be reduced or increased proportionately Candice Grace and Mariano III. Cheryl, Edward and their children resided at the
according to the reduction or increase of the necessities of the recipient and the house of petitioners in Forbes Park, Makati City, together with Edwards ailing
resources or means of the person obliged to support.48 grandmother, Chua Giak and her husband Mariano Lim (Mariano). Edwards
family business, which provided him with a monthly salary of P6,000, shouldered
In this case, we sustain the award of ₱ 2,000.00 monthly child support, without the family expenses. Cheryl had no steady source of income.
prejudice to the filing of the proper motion in the RTC for the determination of
any support in arrears, considering the needs of the child, Gliffze, during the On 14 October 1990, Cheryl abandoned the Forbes Park residence, bringing the
pendency of this case. children with her (then all minors), after a violent confrontation with Edward
whom she caught with the in-house midwife of Chua Giak in what the trial court
WHEREFORE, we hereby DENY the petition for lack of merit. The March 5, 2004 described a very compromising situation.[3]
decision and the July 27, 2004 resolution of the Court of Appeals in CA GR CV No.
76326 are hereby AFFIRMED. Costs against the petitioner. Cheryl, for herself and her children, sued petitioners, Edward, Chua Giak and
Mariano (defendants) in the Regional Trial Court of Makati City, Branch 140 (trial
SO ORDERED. court) for support. The trial court ordered Edward to provide monthly support
of P6,000 pendente lite.[4]
SPOUSES PRUDENCIO and G.R. No. 163209 The Ruling of the Trial Court

FILOMENA LIM,
On 31 January 1996, the trial court rendered judgment ordering Edward and
Petitioners, petitioners to jointly provide P40,000 monthly support to respondents, with
Edward shouldering P6,000 and petitioners the balance of P34,000 subject to
Present: Chua Giaks subsidiary liability.[5]

CARPIO, J., Chairperson, The defendants sought reconsideration, questioning their liability. The trial court,
while denying reconsideration, clarified that petitioners and Chua Giak were held
QUISUMBING,* jointly liable with Edward because of the latters inability x x x to give sufficient
support x x x.[6]
CHICO-NAZARIO,

- versus - PERALTA, and Petitioners appealed to the Court of Appeals assailing, among others, their
liability to support respondents. Petitioners argued that while Edwards income is
ABAD,** JJ. insufficient, the law itself sanctions its effects by providing that legal support
should be in keeping with the financial capacity of the family under Article 194 of
MA. CHERYL S. LIM, the Civil Code, as amended by Executive Order No. 209 (The Family Code of the
Philippines).[7]
for herself and on behalf of
The Ruling of the Court of Appeals its termination or suspension, the obligation to provide legal support passes on
to ascendants not only upon default of the parents but also for the latters
inability to provide sufficient support. As we observed in another case raising the
In its Decision dated 28 April 2003, the Court of Appeals affirmed the trial court. ancillary issue of an ascendants obligation to give support in light of the fathers
On the issue material to this appeal, that is, whether there is basis to hold sufficient means:
petitioners, as Edwards parents, liable with him to support respondents, the
Court of Appeals held: Professor Pineda is of the view that grandchildren cannot demand support
directly from their grandparents if they have parents (ascendants of nearest
The law on support under Article 195 of the Family Code is clear on this degree) who are capable of supporting them. This is so because we have to
matter. Parents and their legitimate children are obliged to mutually support one follow the order of support under Art. 199. We agree with this view.
another and this obligation extends down to the legitimate grandchildren and xxxx
great grandchildren.
There is no showing that private respondent is without means to support his
In connection with this provision, Article 200 paragraph (3) of the Family Code son; neither is there any evidence to prove that petitioner, as the paternal
clearly provides that should the person obliged to give support does not have grandmother, was willing to voluntarily provide for her grandson's legal support.
sufficient means to satisfy all claims, the other persons enumerated in Article 199 x x x[18] (Emphasis supplied; internal citations omitted)
in its order shall provide the necessary support. This is because the closer the
relationship of the relatives, the stronger the tie that binds them. Thus, the
obligation to support is imposed first upon the shoulders of the closer relatives Here, there is no question that Cheryl is unable to discharge her obligation to
and only in their default is the obligation moved to the next nearer relatives and provide sufficient legal support to her children, then all school-bound. It is also
so on.[8] undisputed that the amount of support Edward is able to give to
respondents, P6,000 a month, is insufficient to meet respondents basic needs.
This inability of Edward and Cheryl to sufficiently provide for their children shifts
Petitioners sought reconsideration but the Court of Appeals denied their motion a portion of their obligation to the ascendants in the nearest degree, both in the
in the Resolution dated 12 April 2004. paternal (petitioners) and maternal[19] lines, following the ordering in Article 199.
To hold otherwise, and thus subscribe to petitioners theory, is to sanction the
Hence, this petition. anomalous scenario of tolerating extreme material deprivation of children
because of parental inability to give adequate support even if ascendants one
The Issue degree removed are more than able to fill the void.

However, petitioners partial concurrent obligation extends only to


The issue is whether petitioners are concurrently liable with Edward to provide their descendants as this word is commonly understood to refer to relatives, by
support to respondents. blood of lower degree. As petitioners grandchildren by blood, only
respondents Lester Edward, Candice Grace and Mariano III belong to this
The Ruling of the Court category. Indeed, Cheryls right to receive support from the Lim family extends
only to her husband Edward, arising from their marital bond.[20] Unfortunately,
Cheryls share from the amount of monthly support the trial court awarded
We rule in the affirmative. However, we modify the appealed judgment by cannot be determined from the records. Thus, we are constrained to remand the
limiting petitioners liability to the amount of monthly support needed by case to the trial court for this limited purpose.[21]
respondents Lester Edward, Candice Grace and Mariano III only.
Petitioners Liable to Provide Support Petitioners Precluded from Availing
but only to their Grandchildren of the Alternative Option Under
Article 204 of the Civil Code, as Amended
By statutory[9] and jurisprudential mandate,[10] the liability of ascendants to
provide legal support to their descendants is beyond cavil. Petitioners themselves As an alternative proposition, petitioners wish to avail of the option in Article 204
admit as much they limit their petition to the narrow question of when their of the Civil Code, as amended, and pray that they be allowed to fulfill their
liability is triggered, not if they are liable. Relying on provisions[11] found in Title IX obligation by maintaining respondents at petitioners Makati residence. The
of the Civil Code, as amended, on Parental Authority, petitioners theorize that option is unavailable to petitioners.
their liability is activated only upon default of parental authority, conceivably
either by its termination[12] or suspension[13]during the childrens minority. The application of Article 204 which provides that
Because at the time respondents sued for support, Cheryl and Edward exercised
parental authority over their children,[14] petitioners submit that the obligation to The person obliged to give support shall have the option to fulfill the obligation
support the latters offspring ends with them. either by paying the allowance fixed, or by receiving and maintaining in the
family dwelling the person who has a right to receive support. The latter
Neither the text of the law nor the teaching of jurisprudence supports this severe alternative cannot be availed of in case there is a moral or legal obstacle
constriction of the scope of familial obligation to give support. In the first place, thereto. (Emphasis supplied)
the governing text are the relevant provisions in Title VIII of the Civil Code, as
amended, on Support, not the provisions in Title IX on Parental Authority. While is subject to its exception clause. Here, the persons entitled to receive support
both areas share a common ground in that parental authority encompasses the are petitioners grandchildren and daughter-in-law. Granting petitioners the
obligation to provide legal support, [15] they differ in other concerns including option in Article 204 will secure to the grandchildren a well-provided future;
the duration of the obligation and its concurrence among relatives of differing however, it will also force Cheryl to return to the house which, for her, is the
degrees.[16] Thus, although the obligation to provide support arising from scene of her husbands infidelity. While not rising to the level of a legal obstacle,
parental authority ends upon the emancipation of the child,[17] the same as indeed, Cheryls charge against Edward for concubinage did not prosper for
obligation arising from spousal and general familial ties ideally lasts during the insufficient evidence, her steadfast insistence on its occurrence amounts to
obligee's lifetime.. Also, while parental authority under Title IX (and the a moral impediment bringing the case within the ambit of the exception clause of
correlative parental rights) pertains to parents, passing to ascendants only upon Article 204, precluding its application.
reglementary period and after the expiration of the 10-day period to show cause,
WHEREFORE, we DENY the petition. We AFFIRM the Decision of the Court of the respondent court dismissed the private respondent’s appeal pursuant to
Appeals, dated 28 April 2003, and its Resolution dated 12 April 2004 with Section 1 (f), Rule 50 of the Rules of Court. 2
the MODIFICATION that petitioners Prudencio and Filomena Lim are liable to
provide support only to respondents Lester Edward, Candice Grace and Mariano It was only after more than a month, on January 17, 1990, that the private
III, all surnamed Lim. We REMAND the case to the Regional Trial Court of Makati respondent roused itself and filed a motion for reconsideration of the dismissal
City, Branch 140, for further proceedings consistent with this ruling. of its appeal and for the admission of the appellant’s brief. Its counsel alleged
that an employee of another client had taken the records of the case and had
SO ORDERED. returned them only after Christmas of 1989. It also averred that it could not file
the appeal brief on time because of the aborted coup d ‘etat in December of that
year and the frequent power interruptions in the Makati area, where its office
was located.
[G.R. No. 92862. July 4, 1991.]
An opposition was filed by the petitioner, but the motion was granted by the
respondent court on February 21, 1990. 3 The resolution read in part:chanrob1es
NICANOR T. SANTOS, Petitioner, v. COURT OF APPEALS and H.M.
virtual 1aw library
MONTENEGRO & ASSOCIATES, INC., Respondents.
The Court has no way to determine the veracity of the claim of defendant-
Del Rosario & Del Rosario for Petitioner.
appellant’s counsel that an employee of another client took the records of the
case from his office. The motion filed has no affidavit attached to the same.
Cruz, Palabyab, Llorin & Associates for Private Respondent.
However, the court could take judicial notice of the electrical power interruption
at Makati as well as the occurrence of the aborted coup.

SYLLABUS PREMISES CONSIDERED, in the interest of substantial justice, the resolution dated
December 11, 1989 dismissing the appeal interposed by defendant-appellant is
1. REMEDIAL LAW; CIVIL PROCEDURE; PROCEDURAL RULES ARE NOT TO BE hereby RECONSIDERED and the Brief filed is ADMITTED and appellee’s are given
DISDAINED AS MERE TECHNICALITIES THAT MAY BE IGNORED. — Procedural the reglementary period of forty-five (45) days within which to file appellee’s
rules are not to be disdained as mere technicalities that may be ignored at will to brief.chanrobles law library : red
suit the convenience of a party. Adjective law is important in insuring the
effective enforcement of substantive rights through the orderly and speedy The petitioner’s own motion for reconsideration having been denied, it has come
administration of justice. These rules are not intended to hamper litigants or to this Court to fault the reinstatement of the appeal with grave abuse of
complicate litigation but, indeed, to provide for a system under which suitors discretion.
may be heard in the correct form and manner and at the prescribed time in a
peaceful confrontation before a judge whose authority they acknowledge. The We find at the outset, considering the ground invoked, that the petitioner should
other alternative is the settlement of their conflict through the barrel of a gun. have filed a special civil action for certiorari under Rule 65 of the Rules of Court
rather than a petition for review on certiorariunder Rule 45. We shall disregard
D E C I S I O N this procedural lapse, however, to correct the obvious flaw in the challenged
resolutions.

CRUZ, J.: The conduct of the private respondent and its counsel reveals a careless
disregard of the Rules of Court and, indeed, even a contemptuous rejection of
the authority of the respondent court.
The private respondent’s counsel has acted quite in character up to the end and Required to show cause why the appeal should not be dismissed for failure to file
even unto this Court. The respondent court should not have been so forbearing. the appellant’s brief, 4 the private respondent and its counsel saw fit not to
dignify the warning with a response. Only after the respondent court had
The private respondent lost in a suit for damages in the Regional Trial Court of dismissed the appeal did it occur to them to move for reconsideration, and for
Caloocan City. It appealed to the respondent court and on May 17, 1989, was reasons too flimsy to be believed.
required to file its brief within 45 days from notice. The notice was received by its
counsel on May 24, 1989. The respondent court itself noted that the motion for reconsideration carried no
supporting affidavits to prove the grounds alleged. There was no showing of how
The 45-day period expired on July 8, 1989. No brief had been filed by the the coup d-etat and the power interruptions prevented the private respondent’s
appellant nor had it at least moved for extension of time to do so. counsel from filing the appellant’s brief on time. Notably, the period for the filing
of the brief began on May 24, 1989, long before the failed November-December
On September 19, 1989, the Court of Appeals issued a resolution requiring the coup d’etat.chanroblesvirtualawlibrary
private respondent to show cause why its appeal should not be considered
abandoned or dismissed for its failure to file the appellant’s brief. This was Other law offices similarly inconvenienced by the attempted coup d’etat and the
ignored by the private Respondent. 1 power interruptions have not been similarly remiss as the private respondent’s
counsel. Some of them have pleaded for more time to meet 15-day or 30-day
On October 4, 1989, the petitioner filed a motion for the dismissal of the private deadlines and have been accommodated. But it is different in the case at bar,
respondent’s appeal for failure to file the appellant’s brief No action having been where the private respondent’s counsel had delayed for more than four months
taken thereon, it was reiterated on December 12, 1989. There was no reaction and had not even asked for an extension.
from the private respondent to either of the two motions.chanrobles.com :
virtual law library Given this inexcusable delay, the respondent court should not have been so
tolerant. The appellee, no less than the appellant, was entitled to speedy justice.
On December 11, 1989, two hundred and one days from the start of the 45-day Whether deliberate or not, the non-filing of the appellant’s brief on time had the
effect of postponing action on the judgment the petitioner had already won in On September 4, 2005, Dominique died.1 After almost two months, or on
the trial court. In reinstating the appeal, the respondent court allowed itself to November 2, 2005, Jenie, who continued to live with Dominique's parents, gave
emasculate the policy of expeditious judicial action mandated by the Constitution birth to her herein co-petitioner minor child Christian Dela Cruz "Aquino" at the
itself. Antipolo Doctors Hospital, Antipolo City.

It has to be noted that the irresponsibility of the private respondent’s counsel did Jenie applied for registration of the child's birth, using Dominique's surname
not stop at the respondent court but has marred even the proceedings in this Aquino, with the Office of the City Civil Registrar, Antipolo City, in support of
Court. In our resolution dated June 20, 1990, we required the private respondent which she submitted the child's Certificate of Live Birth,2 Affidavit to Use the
to file a Comment on the petition within ten days from notice. No such Comment Surname of the Father3 (AUSF) which she had executed and signed, and Affidavit
was filed. The same counsel was required in the resolution dated January 23, of Acknowledgment executed by Dominique's father Domingo Butch
1991, to show cause why it should not be disciplined for failure to submit its Aquino.4 Both affidavits attested, inter alia, that during the lifetime of
Comment, and to comply with the Court’s resolution. It has completely ignored Dominique, he had continuously acknowledged his yet unborn child, and that his
that warning as if this Court did not deserve its attention. paternity had never been questioned. Jenie attached to the AUSF a document
entitled "AUTOBIOGRAPHY" which Dominique, during his lifetime, wrote in his
We will not countenance such disrespect. All lawyers are expected to recognize own handwriting, the pertinent portions of which read:
the authority of the Supreme Court and obey its lawful processes and orders. For
the failure of the private respondent to submit its Comment, we have dispensed
AQUINO, CHRISTIAN DOMINIQUE S.T.
with and resolved this petition on the basis of the pleadings and other available
documents. Moreover, for its intransigence and as a warning to other lawyers
who may be similarly disposed, the law office of Cruz, Palabyab, Llorin and AUTOBIOGRAPHY
Associates is hereby fined in the amount of One Thousand Pesos, to be paid to
the Cashier of the Court within ten days from notice of this decision. Any further I M CHRISTIAN DOMINIQUE STO. TOMAS AQUINO, 19 YEARS OF AGE TURNING 20
disrespect or disobedience of this Court by the said law firm shall be dealt with THIS COMING OCTOBER 31, 2005.5 I RESIDE AT PULANG-LUPA STREET BRGY.
more severely. DULUMBAYAN, TERESA, RIZAL. I AM THE YOUNGEST IN OUR FAMILY. I HAVE ONE
BROTHER NAMED JOSEPH BUTCH STO. TOMAS AQUINO. MY FATHER'S NAME IS
The record does not show if the private respondent condoned or contributed to DOMINGO BUTCH AQUINO AND MY MOTHER'S NAME IS RAQUEL STO. TOMAS
its counsel’s negligence. If it did not and feels it has reason to complain, it may AQUINO. x x x.
file administrative charges against such counsel with the Integrated Bar of the
Philippines.chanrobles.com.ph : virtual law library x x x

Procedural rules are not to be disdained as mere technicalities that may be AS OF NOW I HAVE MY WIFE NAMED JENIE DELA CRUZ. WE MET EACH OTHER IN
ignored at will to suit the convenience of a party. Adjective law is important in OUR HOMETOWN, TEREZA RIZAL. AT FIRST WE BECAME GOOD FRIENDS,
insuring the effective enforcement of substantive rights through the orderly and THEN WE FELL IN LOVE WITH EACH OTHER, THEN WE BECAME GOOD
speedy administration of justice. These rules are not intended to hamper litigants COUPLES. AND AS OF NOW SHE IS PREGNANT AND FOR THAT WE LIVE
or complicate litigation but, indeed, to provide for a system under which suitors TOGETHER IN OUR HOUSE NOW. THAT'S ALL.6(Emphasis and underscoring
may be heard in the correct form and manner and at the prescribed time in a supplied)cralawlibrary
peaceful confrontation before a judge whose authority they acknowledge. The
other alternative is the settlement of their conflict through the barrel of a gun.
By letter dated November 11, 2005,7 the City Civil Registrar of Antipolo City,
WHEREFORE, the petition is GRANTED and the resolution of the respondent court Ronald Paul S. Gracia (respondent), denied Jenie's application for registration of
reinstating the appeal in CA-GR CV No. 20225 is SET ASIDE, with costs against the the child's name in this wise:
private Respondent.
7. Rule 7 of Administrative Order No. 1, Series of 2004 (Implementing Rules and
SO ORDERED. Regulations of Republic Act No. 9255 ["An Act Allowing Illegitimate Children to
Use the Surname of their Father, Amending for the Purpose, Article 176 of
Executive Order No. 209, otherwise Known as the 'Family Code of the
Philippines'"]) provides that:
[G.R. NO. 177728 : July 31, 2009]
Rule 7. Requirements for the Child to Use the Surname of the Father
JENIE SAN JUAN DELA CRUZ and minor CHRISTIAN DELA CRUZ "AQUINO,"
represented by JENIE SAN JUAN DELA CRUZ, Petitioners, v. RONALD PAUL S. 7.1 For Births Not Yet Registered
GRACIA, in his capacity as City Civil Registrar of Antipolo City, Respondent.
7.1.1 The illegitimate child shall use the surname of the father if a public
DECISION document is executed by the father, either at the back of the Certificate of Live
Birth or in a separate document.
CARPIO MORALES, J.:
7.1.2 If admission of paternity is made through a private handwritten instrument,
the child shall use the surname of the father, provided the registration is
For several months in 2005, then 21-year old petitioner Jenie San Juan Dela Cruz supported by the following documents:
(Jenie) and then 19-year old Christian Dominique Sto. Tomas Aquino (Dominique)
lived together as husband and wife without the benefit of marriage. They resided
in the house of Dominique's parents Domingo B. Aquino and Raquel Sto. Tomas A. AUSF8
Aquino at Pulang-lupa, Dulumbayan, Teresa, Rizal.
b. Consent of the child, if 18 years old and over at the time of the filing of the
document.
c. Any two of the following documents showing clearly the paternity between the 2.2 Private handwritten instrument - an instrument executed in the handwriting
father and the child: of the father and duly signed by him where he expressly recognizes paternity to
the child. (Underscoring supplied)cralawlibrary
1. Employment records
The trial court held that even if Dominique was the author of the handwritten
2. SSS/GSIS records Autobiography, the same does not contain any express recognition of
paternity.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
3. Insurance
Hence, this direct resort to the Court via Petition for Review on Certiorari raising
this purely legal issue of:
4. Certification of membership in any organization

WHETHER OR NOT THE UNSIGNED HANDWRITTEN STATEMENT OF THE


5. Statement of Assets and Liability
DECEASED FATHER OF MINOR CHRISTIAN DELA CRUZ CAN BE CONSIDERED AS A
RECOGNITION OF PATERNITY IN A "PRIVATE HANDWRITTEN INSTRUMENT"
6. Income Tax Return (ITR) WITHIN THE CONTEMPLATION OF ARTICLE 176 OF THE FAMILY CODE, AS
AMENDED BY R.A. 9255, WHICH ENTITLES THE SAID MINOR TO USE HIS FATHER'S
In summary, the child cannot use the surname of his father because he was born SURNAME.15(Underscoring supplied)cralawlibrary
out of wedlock and the father unfortunately died prior to his birth and has no
more capacity to acknowledge his paternity to the child (either through the back Petitioners contend that Article 176 of the Family Code, as amended, does not
of Municipal Form No. 102 - Affidavit of Acknowledgment/Admission of Paternity expressly require that the private handwritten instrument containing the
- or the Authority to Use the Surname of the Father). (Underscoring putative father's admission of paternity must be signed by him. They add that the
supplied)cralawlibrary deceased's handwritten Autobiography, though unsigned by him, is sufficient, for
the requirement in the above-quoted paragraph 2.2 of the Administrative
Jenie and the child promptly filed a complaint9 for injunction/registration of Order that the admission/recognition must be "duly signed" by the father is void
name against respondent before the Regional Trial Court of Antipolo City, as it "unduly expanded" the earlier-quoted provision of Article 176 of the Family
docketed as SCA Case No. 06-539, which was raffled to Branch 73 thereof. The Code.16
complaint alleged that, inter alia, the denial of registration of the child's name is
a violation of his right to use the surname of his deceased father under Article Petitioners further contend that the trial court erred in not finding that
176 of the Family Code, as amended by Republic Act (R.A.) No. 9255,10 which Dominique's handwritten Autobiography contains a "clear and unmistakable"
provides: recognition of the child's paternity.17

Article 176. Illegitimate children shall use the surname and shall be under the In its Comment, the Office of the Solicitor General (OSG) submits that
parental authority of their mother, and shall be entitled to support in conformity respondent's position, as affirmed by the trial court, is in consonance with the
with this Code. However, illegitimate children may use the surname of their law and thus prays for the dismissal of the petition. It further submits that
father if their filiation has been expressly recognized by the father through the Dominique's Autobiography "merely acknowledged Jenie's pregnancy but not
record of birth appearing in the civil register, or when an admission in a public [his] paternity of the child she was carrying in her womb."18
document or private handwritten instrument is made by the father. Provided, the
father has the right to institute an action before the regular courts to prove non-
Article 176 of the Family Code, as amended by R.A. 9255, permits an illegitimate
filiation during his lifetime. The legitime of each illegitimate child shall consist of
child to use the surname of his/her father if the latter had expressly recognized
one-half of the legitime of a legitimate child. (Emphasis and underscoring
him/her as his offspring through the record of birth appearing in the civil register,
supplied)cralawlibrary
or through an admission made in a public or private handwritten instrument. The
recognition made in any of these documents is, in itself, a consummated act of
They maintained that the Autobiography executed by Dominique constitutes an acknowledgment of the child's paternity; hence, no separate action for judicial
admission of paternity in a "private handwritten instrument" within the approval is necessary.19
contemplation of the above-quoted provision of law.
Article 176 of the Family Code, as amended, does not, indeed, explicitly state that
For failure to file a responsive pleading or answer despite service of summons, the private handwritten instrument acknowledging the child's paternity must be
respondent was declared in default. signed by the putative father. This provision must, however, be read in
conjunction with related provisions of the Family Code which require that
Jenie thereupon presented evidence ex-parte. She testified on the circumstances recognition by the father must bear his signature, thus:
of her common-law relationship with Dominique and affirmed her declarations in
her AUSF that during his lifetime, he had acknowledged his yet unborn Art. 175. Illegitimate children may establish their illegitimate filiation in the same
child.11 She offered Dominique's handwritten Autobiography (Exhibit "A") as her way and on the same evidence as legitimate children.
documentary evidence-in-chief.12 Dominique's lone brother, Joseph Butch S.T.
Aquino, also testified, corroborating Jenie's declarations.13
xxx

By Decision14 of April 25, 2007, the trial court dismissed the complaint "for lack of
Art. 172. The filiation of legitimate children is established by any of the following:
cause of action" as the Autobiography was unsigned, citing paragraph 2.2, Rule 2
(Definition of Terms) of Administrative Order (A.O.) No. 1, Series of 2004 (the
Rules and Regulations Governing the Implementation of R.A. 9255) which (1) The record of birth appearing in the civil register or a final judgment; or
defines "private handwritten document" through which a father may
acknowledge an illegitimate child as follows: (2) An admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.
x x x x (Emphasis and underscoring supplied)cralawlibrary and the places where these facts occurred, and the names of the relatives. It
embraces also facts of family history intimately connected with pedigree.
That a father who acknowledges paternity of a child through a written
instrument must affix his signature thereon is clearly implied in Article 176 of the SEC. 40. Family reputation or tradition regarding pedigree. - The reputation or
Family Code. Paragraph 2.2, Rule 2 of A.O. No. 1, Series of 2004, merely tradition existing in a family previous to the controversy, in respect to the
articulated such requirement; it did not "unduly expand" the import of Article pedigree of any one of its members, may be received in evidence if the witness
176 as claimed by petitioners. testifying thereon be also a member of the family, either by consanguinity or
affinity. Entries in family bibles or other family books or charts, engraving on
In the present case, however, special circumstances exist to hold that rings, family portraits and the like, may be received as evidence of pedigree.
Dominique's Autobiography, though unsigned by him, substantially satisfies the
requirement of the law. This Court's rulings further specify what incriminating acts are acceptable as
evidence to establish filiation. In Pe Lim v. CA, a case petitioner often cites, we
First, Dominique died about two months prior to the child's birth. Second, the stated that the issue of paternity still has to be resolved by such conventional
relevant matters in the Autobiography, unquestionably handwritten by evidence as the relevant incriminating verbal and written acts by the putative
Dominique, correspond to the facts culled from the testimonial evidence Jenie father. Under Article 278 of the New Civil Code, voluntary recognition by a parent
proffered.20 Third, Jenie's testimony is corroborated by the Affidavit of shall be made in the record of birth, a will, a statement before a court of record,
Acknowledgment of Dominique's father Domingo Aquino and testimony of his or in any authentic writing. To be effective, the claim of filiation must be made by
brother Joseph Butch Aquino whose hereditary rights could be affected by the the putative father himself and the writing must be the writing of the putative
registration of the questioned recognition of the child. These circumstances father. A notarial agreement to support a child whose filiation is admitted by the
indicating Dominique's paternity of the child give life to his statements in his putative father was considered acceptable evidence. Letters to the mother
Autobiography that "JENIE DELA CRUZ" is "MY WIFE" as "WE FELL IN LOVE WITH vowing to be a good father to the child and pictures of the putative father
EACH OTHER" and "NOW SHE IS PREGNANT AND FOR THAT WE LIVE TOGETHER." cuddling the child on various occasions, together with the certificate of live birth,
proved filiation. However, a student permanent record, a written consent to a
father's operation, or a marriage contract where the putative father gave
In Herrera v. Alba,21 the Court summarized the laws, rules, and jurisprudence on
consent, cannot be taken as authentic writing. Standing alone, neither a
establishing filiation, discoursing in relevant part:
certificate of baptism nor family pictures are sufficient to establish filiation.
(Emphasis and underscoring supplied.)
Laws, Rules, and Jurisprudence
In the case at bar, there is no dispute that the earlier quoted statements in
Establishing Filiation Dominique's Autobiography have been made and written by him. Taken together
with the other relevant facts extant herein - that Dominique, during his lifetime,
The relevant provisions of the Family Code provide as follows: and Jenie were living together as common-law spouses for several months in
2005 at his parents' house in Pulang-lupa, Dulumbayan, Teresa, Rizal; she was
ART. 175. Illegitimate children may establish their illegitimate filiation in the pregnant when Dominique died on September 4, 2005; and about two months
same way and on the same evidence as legitimate children. after his death, Jenie gave birth to the child - they sufficiently establish that the
child of Jenie is Dominique's.
x x x
In view of the pronouncements herein made, the Court sees it fit to adopt the
ART. 172. The filiation of legitimate children is established by any of the following rules respecting the requirement of affixing the signature of the
following: acknowledging parent in any private handwritten instrument wherein an
admission of filiation of a legitimate or illegitimate child is made:
(1) The record of birth appearing in the civil register or a final judgment; or
1) Where the private handwritten instrument is the lone piece of evidence
submitted to prove filiation, there should be strict compliance with the
(2) An admission of legitimate filiation in a public document or a private requirement that the same must be signed by the acknowledging parent;
handwritten instrument and signed by the parent concerned. andcralawlibrary

In the absence of the foregoing evidence, the legitimate filiation shall be proved 2) Where the private handwritten instrument is accompanied by other relevant
by: and competent evidence, it suffices that the claim of filiation therein be shown to
have been made and handwritten by the acknowledging parent as it is merely
(1) The open and continuous possession of the status of a legitimate child; or corroborative of such other evidence.

(2) Any other means allowed by the Rules of Court and special laws. Our laws instruct that the welfare of the child shall be the "paramount
consideration" in resolving questions affecting him.22 Article 3(1) of the United
The Rules on Evidence include provisions on pedigree. The relevant sections of Nations Convention on the Rights of a Child of which the Philippines is a signatory
Rule 130 provide: is similarly emphatic:

SEC. 39. Act or declaration about pedigree. - The act or declaration of a person Article 3
deceased, or unable to testify, in respect to the pedigree of another person
related to him by birth or marriage, may be received in evidence where it 1. In all actions concerning children, whether undertaken by public or private
occurred before the controversy, and the relationship between the two persons social welfare institutions, courts of law, administrative authorities or legislative
is shown by evidence other than such act or declaration. The word "pedigree" bodies, the best interests of the child shall be a primary
includes relationship, family genealogy, birth, marriage, death, the dates when consideration.23 (Underscoring supplied)cralawlibrary
It is thus "(t)he policy of the Family Code to liberalize the rule on the investigation parcel of land located at the Valle Verde Subdivision was registered under the
of the paternity and filiation of children, especially of illegitimate children x x name of Far East Realty Investment, Inc.
x."24 Too, "(t)he State as parens patriae affords special protection to children
from abuse, exploitation and other conditions prejudicial to their On June 9, 1975, Corazon gave birth to William Liyao, Jr. at the Cardinal Santos
development."25 Memorial Hospital. During her three (3) day stay at the hospital, William Liyao
visited and stayed with her and the new born baby, William, Jr. (Billy). All the
In the eyes of society, a child with an unknown father bears the stigma of medical and hospital expenses, food and clothing were paid under the account of
dishonor. It is to petitioner minor child's best interests to allow him to bear the William Liyao. William Liyao even asked his confidential secretary, Mrs. Virginia
surname of the now deceased Dominique and enter it in his birth certificate. Rodriguez, to secure a copy of Billys birth certificate. He likewise instructed
Corazon to open a bank account for Billy with the Consolidated Bank and Trust
Company[4] and gave weekly amounts to be deposited therein.[5] William Liyao
WHEREFORE, the petition is GRANTED. The City Civil Registrar of Antipolo City is
would bring Billy to the office, introduce him as his good looking son and had
DIRECTED to immediately enter the surname of the late Christian Dominique Sto.
their pictures taken together.[6]
Tomas Aquino as the surname of petitioner minor Christian dela Cruz in his
Certificate of Live Birth, and record the same in the Register of Births.
During the lifetime of William Liyao, several pictures were taken showing, among
SO ORDERED.
others, William Liyao and Corazon together with Billys godfather, Fr. Julian Ruiz,
William Liyaos legal staff and their wives while on vacation in Baguio.[7] Corazon
[G.R. No. 138961. March 7, 2002]
also presented pictures in court to prove that that she usually accompanied
William Liyao while attending various social gatherings and other important
WILLIAM LIYAO, JR., represented by his mother Corazon Garcia, petitioner, vs.
meetings.[8] During the occasion of William Liyaos last birthday on November 22,
JUANITA TANHOTI-LIYAO, PEARL MARGARET L. TAN, TITA ROSE L. TAN AND
1975 held at the Republic Supermarket, William Liyao expressly acknowledged
LINDA CHRISTINA LIYAO, respondents.
Billy as his son in the presence of Fr. Ruiz, Maurita Pasion and other friends and
said, Hey, look I am still young, I can still make a good looking son." [9] Since birth,
DECISION
Billy had been in continuous possession and enjoyment of the status of a
recognized and/or acknowledged child of William Liyao by the latters direct and
DE LEON, JR., J.:
overt acts. William Liyao supported Billy and paid for his food, clothing and other
material needs. However, after William Liyaos death, it was Corazon who
Before us is a petition for review on certiorari assailing the decision dated June 4,
provided sole support to Billy and took care of his tuition fees at La Salle,
1999 of the Court of Appeals in CA-G.R. C.V. No. 45394[1] which reversed the
Greenhills. William Liyao left his personal belongings, collections, clothing, old
decision of the Regional Trial Court (RTC) of Pasig, Metro Manila, Branch 167 in
newspaper clippings and laminations at the house in White Plains where he
declaring William Liyao, Jr. as the illegitimate (spurious) son of the deceased
shared his last moments with Corazon.
William Liyao and ordering Juanita Tanhoti-Liyao, Pearl Margaret L. Tan, Tita Rose
L. Tan and Linda Christina Liyao to recognize and acknowledge William Liyao, Jr.
Testifying for the petitioner, Maurita Pasion declared that she knew both
as a compulsory heir of the deceased William Liyao and entitled to all
Corazon G. Garcia and William Liyao who were godparents to her children. She
successional rights as such and to pay the costs of the suit.
used to visit Corazon and William Liyao from 1965-1975. The two children of
Corazon from her marriage to Ramon Yulo, namely, Bernadette and Enrique (Ike),
On November 29,1976, William Liyao, Jr., represented by his mother Corazon G.
together with some housemaids lived with Corazon and William Liyao as one
Garcia, filed Civil Case No. 24943 before the RTC of Pasig, Branch 167 which is an
family. On some occasions like birthdays or some other celebrations, Maurita
action for compulsory recognition as the illegitimate (spurious) child of the late
would sleep in the couples residence and cook for the family. During these
William Liyao against herein respondents, Juanita Tanhoti-Liyao, Pearl Margaret
occasions, she would usually see William Liyao in sleeping clothes. When
L. Tan, Tita Rose L. Tan and Linda Christina Liyao.[2] The complaint was later
Corazon, during the latter part of 1974, was pregnant with her child Billy, Maurita
amended to include the allegation that petitioner was in continuous possession
often visited her three (3) to four (4) times a week in Greenhills and later on in
and enjoyment of the status of the child of said William Liyao, petitioner having
White Plains where she would often see William Liyao. Being a close friend of
been recognized and acknowledged as such child by the decedent during his
Corazon, she was at the Cardinal Santos Memorial Hospital during the birth of
lifetime."[3]
Billy. She continuously visited them at White Plains and knew that William Liyao,
while living with her friend Corazon, gave support by way of grocery supplies,
The facts as alleged by petitioner are as follows:
money for household expenses and matriculation fees for the two (2) older
children, Bernadette and Enrique. During William Liyaos birthday on November
Corazon G. Garcia is legally married to but living separately from Ramon M. Yulo
22, 1975 held at the Republic Supermarket Office, he was carrying Billy and told
for more than ten (10) years at the time of the institution of the said civil case.
everybody present, including his two (2) daughters from his legal marriage, Look,
Corazon cohabited with the late William Liyao from 1965 up to the time of
this is my son, very guapo and healthy.[10] He then talked about his plan for the
Williams untimely demise on December 2, 1975. They lived together in the
baptism of Billy before Christmas. He intended to make it engrande and make the
company of Corazons two (2) children from her subsisting marriage, namely:
bells of San Sebastian Church ring.[11] Unfortunately, this did not happen since
William Liyao passed away on December 2, 1975. Maurita attended Mr. Liyaos
Enrique and Bernadette, both surnamed Yulo, in a succession of rented houses in funeral and helped Corazon pack his clothes. She even recognized a short sleeved
Quezon City and Manila. This was with the knowledge of William Liyaos shirt of blue and gray[12] which Mr. Liyao wore in a photograph[13] as well as
legitimate children, Tita Rose L. Tan and Linda Christina Liyao-Ortiga, from his another shirt of lime green[14] as belonging to the deceased. A note was also
subsisting marriage with Juanita Tanhoti Liyao. Tita Rose and Christina were both presented with the following inscriptions: To Cora, Love From William.[15] Maurita
employed at the Far East Realty Investment, Inc. of which Corazon and William remembered having invited the couple during her mothers birthday where the
were then vice president and president, respectively. couple had their pictures taken while exhibiting affectionate poses with one
another. Maurita knew that Corazon is still married to Ramon Yulo since her
Sometime in 1974, Corazon bought a lot from Ortigas and Co. which required the marriage has not been annulled nor is Corazon legally separated from her said
signature of her husband, Ramon Yulo, to show his consent to the aforesaid sale. husband. However, during the entire cohabitation of William Liyao with Corazon
She failed to secure his signature and, had never been in touch with him despite Garcia, Maurita had not seen Ramon Yulo or any other man in the house when
the necessity to meet him. Upon the advice of William Liyao, the sale of the she usually visited Corazon.
Gloria Panopio testified that she is the owner of a beauty parlor and that she but her sister, Tita Rose, decided to let Corazon Garcia go. Linda did not
knew that Billy is the son of her neighbors, William Liyao and Corazon Garcia, the recognize any article of clothing which belonged to her father after having been
latter being one of her customers. Gloria met Mr. Liyao at Corazons house in shown three (3) large suit cases full of mens clothes, underwear, sweaters, shorts
Scout Delgado, Quezon City in the Christmas of 1965. Gloria had numerous and pajamas.
occasions to see Mr. Liyao from 1966 to 1974 and even more so when the couple
transferred to White Plains, Quezon City from 1974-1975. At the time Corazon Tita Rose Liyao-Tan testified that her parents were legally married and had never
was conceiving, Mr. Liyao was worried that Corazon might have another been separated. They resided at No. 21 Hernandez Street, San Lorenzo Village,
miscarriage so he insisted that she just stay in the house, play mahjong and not Makati up to the time of her fathers death on December 2, 1975.[19] Her father
be bored. Gloria taught Corazon how to play mahjong and together with Atty. suffered two (2) minor cardio-vascular arrests (CVA) prior to his death. During the
Brillantes wife and sister-in-law, had mahjong sessions among themselves. Gloria first heart attack sometime between April and May 1974, his speech and hands
knew that Mr. Liyao provided Corazon with a rented house, paid the salary of the were affected and he had to stay home for two (2) to three (3) months under
maids and food for Billy. He also gave Corazon financial support. Gloria knew that strict medication, taking aldomet, serpadil and cifromet which were prescribed
Corazon is married but is separated from Ramon Yulo although Gloria never had by Dr. Bonifacio Yap, for high blood pressure and cholesterol level control.[20] Tita
any occasion to see Mr. Yulo with Corazon in the house where Mr. Liyao and Rose testified that after the death of Mr. Liyao, Corazon Garcia was paid the
Corazon lived. amount of One Hundred Thousand Pesos (P100,000.00) representing her
investment in the Far East Realty Investment Inc. Tita Rose also stated that her
Enrique Garcia Yulo testified that he had not heard from his father, Ramon Yulo, family never received any formal demand that they recognize a certain William
from the time that the latter abandoned and separated from his family. Enrique Liyao, Jr. as an illegitimate son of her father, William Liyao. After assuming the
was about six (6) years old when William Liyao started to live with them up to the position of President of the company, Tita Rose did not come across any check
time of the latters death on December 2, 1975. Mr. Liyao was very supportive signed by her late father representing payment to lessors as rentals for the house
and fond of Enriques half brother, Billy. He identified several pictures showing occupied by Corazon Garcia. Tita Rose added that the laminated photographs
Mr. Liyao carrying Billy at the house as well as in the office. Enriques testimony presented by Corazon Garcia are the personal collection of the deceased which
was corroborated by his sister, Bernadette Yulo, who testified that the various were displayed at the latters office.
pictures showing Mr. Liyao carrying Billy could not have been superimposed and
that the negatives were in the possession of her mother, Corazon Garcia. The last witness who testified for the respondents was Ramon Pineda, driver and
bodyguard of William Liyao from 1962 to 1974, who said that he usually reported
Respondents, on the other hand, painted a different picture of the story. for work at San Lorenzo Village, Makati to pick up his boss at 8:00 oclock in the
morning. At past 7:00 oclock in the evening, either Carlos Palamigan or Serafin
Linda Christina Liyao-Ortiga stated that her parents, William Liyao and Juanita Villacillo took over as night shift driver. Sometime between April and May 1974,
Tanhoti-Liyao, were legally married.[16] Linda grew up and lived with her parents Mr. Liyao got sick. It was only after a month that he was able to report to the
at San Lorenzo Village, Makati, Metro Manila until she got married; that her office. Thereafter, Mr. Liyao was not able to report to the office regularly.
parents were not separated legally or in fact and that there was no reason why Sometime in September 1974, Mr. Liyao suffered from another heart attack. Mr.
any of her parents would institute legal separation proceedings in court. Her Pineda added that as a driver and bodyguard of Mr. Liyao, he ran errands for the
father lived at their house in San Lorenzo Village and came home regularly. Even latter among which was buying medicine for him like capasid and aldomet. On
during out of town business trips or for conferences with the lawyers at the December 2, 1975, Mr. Pineda was called inside the office of Mr. Liyao. Mr.
office, her father would change his clothes at home because of his personal Pineda saw his employer leaning on the table. He tried to massage Mr. Liyaos
hygiene and habits. Her father reportedly had trouble sleeping in other peoples breast and decided later to carry and bring him to the hospital but Mr. Liyao died
homes. Linda described him as very conservative and a strict disciplinarian. He upon arrival thereat. Mrs. Liyao and her daughter, Linda Liyao-Ortiga were the
believed that no amount of success would compensate for failure of a home. As a first to arrive at the hospital.
businessman, he was very tough, strong, fought for what he believed in and did
not give up easily. He suffered two strokes before the fatal attack which led to his Mr. Pineda also declared that he knew Corazon Garcia to be one of the
death on December 2, 1975. He suffered a stroke at the office sometime in April- employees of the Republic Supermarket. People in the office knew that she was
May 1974 and was attended by Dr. Santiago Co. He then stayed in the house for married. Her husband, Ramon Yulo, would sometimes go to the office. One time,
two (2) to three (3) months for his therapy and acupuncture treatment. He could in 1974, Mr. Pineda saw Ramon Yulo at the office garage as if to fetch Corazon
not talk, move, walk, write or sign his name. In the meantime, Linda and her Garcia. Mr. Yulo who was also asking about cars for sale, represented himself as
sister, Tita Rose Liyao-Tan, ran the office. She handled the collection of rents car dealer.
while her sister referred legal matters to their lawyers. William Liyao was
bedridden and had personally changed. He was not active in business and had Witness Pineda declared that he did not know anything about the claim of
dietary restrictions. Mr. Liyao also suffered a milder stroke during the latter part Corazon. He freely relayed the information that he saw Mr. Yulo in the garage of
of September to October 1974. He stayed home for two (2) to three (3) days and Republic Supermarket once in 1973 and then in 1974 to Atty. Quisumbing when
went back to work. He felt depressed, however, and was easily bored. He did not he went to the latters law office. Being the driver of Mr. Liyao for a number of
put in long hours in the office unlike before and tried to spend more time with his years, Pineda said that he remembered having driven the group of Mr. Liyao,
family. Atty. Astraquillo, Atty. Brillantes, Atty. Magno and Atty. Laguio to Baguio for a
vacation together with the lawyers wives. During his employment, as driver of
Linda testified that she knew Corazon Garcia is still married to Ramon Yulo. Mr. Liyao, he does not remember driving for Corazon Garcia on a trip to Baguio
Corazon was not legally separated from her husband and the records from the or for activities like shopping.
Local Civil Registrar do not indicate that the couple obtained any annulment[17] of
their marriage. Once in 1973, Linda chanced upon Ramon Yulo picking up On August 31, 1993, the trial court rendered a decision, the dispositive portion of
Corazon Garcia at the company garage. Immediately after the death of Lindas which reads as follows:
father, Corazon went to Lindas office for the return of the formers alleged
investments with the Far East Realty Investment, Inc. including a parcel of land WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the
sold by Ortigas and Company. Linda added that Corazon, while still a Vice- defendants as follows:
President of the company, was able to take out documents, clothes and several
laminated pictures of William Liyao from the office. There was one instance when (a) Confirming the appointment of Corazon G. Garcia as the guardian ad litem of
she was told by the guards, Mrs. Yulo is leaving and taking out things the minor William Liyao, Jr.;
again.[18] Linda then instructed the guards to bring Mrs. Yulo to the office upstairs
(b) Declaring the minor William Liyao, Jr. as the illegitimate (spurious) son of the Against this presumption no evidence shall be admitted other than that of the
deceased William Liyao; physical impossibility of the husband having access to his wife within the first one
hundred and twenty days of the three hundred which preceded the birth of the
(c) Ordering the defendants Juanita Tanhoti Liyao, Pearl Margaret L. Tan, Tita child.
Rose L. Tan and Christian Liyao, to recognize, and acknowledge the minor William
Liyao, Jr. as a compulsory heir of the deceased William Liyao, entitled to all This physical impossibility may be caused:
succesional rights as such; and
1) By the impotence of the husband;
(d) Costs of suit.[21]
2) By the fact that husband and wife were living separately in such a way that
In ruling for herein petitioner, the trial court said it was convinced by access was not possible;
preponderance of evidence that the deceased William Liyao sired William Liyao,
Jr. since the latter was conceived at the time when Corazon Garcia cohabited 3) By the serious illness of the husband.
with the deceased. The trial court observed that herein petitioner had been in
continuous possession and enjoyment of the status of a child of the deceased by Petitioner insists that his mother, Corazon Garcia, had been living separately for
direct and overt acts of the latter such as securing the birth certificate of ten (10) years from her husband, Ramon Yulo, at the time that she cohabited
petitioner through his confidential secretary, Mrs. Virginia Rodriguez; openly and with the late William Liyao and it was physically impossible for her to have sexual
publicly acknowledging petitioner as his son; providing sustenance and even relations with Ramon Yulo when petitioner was conceived and born. To bolster
introducing herein petitioner to his legitimate children. his claim, petitioner presented a document entitled, Contract of
Separation,[25] executed and signed by Ramon Yulo indicating a waiver of rights to
The Court of Appeals, however, reversed the ruling of the trial court saying that any and all claims on any property that Corazon Garcia might acquire in the
the law favors the legitimacy rather than the illegitimacy of the child and the future.[26]
presumption of legitimacy is thwarted only on ethnic ground and by proof that
marital intimacy between husband and wife was physically impossible at the The fact that Corazon Garcia had been living separately from her husband,
period cited in Article 257 in relation to Article 255 of the Civil Code. The Ramon Yulo, at the time petitioner was conceived and born is of no moment.
appellate court gave weight to the testimonies of some witnesses for the While physical impossibility for the husband to have sexual intercourse with his
respondents that Corazon Garcia and Ramon Yulo who were still legally married wife is one of the grounds for impugning the legitimacy of the child, it bears
and have not secured legal separation, were seen in each others company during emphasis that the grounds for impugning the legitimacy of the child mentioned
the supposed time that Corazon cohabited with the deceased William Liyao. The in Article 255 of the Civil Code may only be invoked by the husband, or in proper
appellate court further noted that the birth certificate and the baptismal cases, his heirs under the conditions set forth under Article 262 of the Civil
certificate of William Liyao, Jr. which were presented by petitioner are not Code.[27]Impugning the legitimacy of the child is a strictly personal right of the
sufficient to establish proof of paternity in the absence of any evidence that the husband, or in exceptional cases, his heirs for the simple reason that he is the
deceased, William Liyao, had a hand in the preparation of said certificates and one directly confronted with the scandal and ridicule which the infidelity of his
considering that his signature does not appear thereon. The Court of Appeals wife produces and he should be the one to decide whether to conceal that
stated that neither do family pictures constitute competent proof of filiation. infidelity or expose it in view of the moral and economic interest involved.[28]It is
With regard to the passbook which was presented as evidence for petitioner, the only in exceptional cases that his heirs are allowed to contest such legitimacy.
appellate court observed that there was nothing in it to prove that the same was Outside of these cases, none - even his heirs - can impugn legitimacy; that would
opened by William Liyao for either petitioner or Corazon Garcia since William amount o an insult to his memory.[29]
Liyaos signature and name do not appear thereon.
It is therefor clear that the present petition initiated by Corazon G. Garcia as
His motion for reconsideration having been denied, petitioner filed the present guardian ad litem of the then minor, herein petitioner, to compel recognition by
petition. respondents of petitioner William Liyao, Jr, as the illegitimate son of the late
William Liyao cannot prosper. It is settled that a child born within a valid
It must be stated at the outset that both petitioner and respondents have raised marriage is presumed legitimate even though the mother may have declared
a number of issues which relate solely to the sufficiency of evidence presented by against its legitimacy or may have been sentenced as an adulteress.[30] We cannot
petitioner to establish his claim of filiation with the late William Liyao. allow petitioner to maintain his present petition and subvert the clear mandate
Unfortunately, both parties have consistently overlooked the real crux of this of the law that only the husband, or in exceptional circumstances, his heirs, could
litigation: May petitioner impugn his own legitimacy to be able to claim from the impugn the legitimacy of a child born in a valid and subsisting marriage. The child
estate of his supposed father, William Liyao? himself cannot choose his own filiation. If the husband, presumed to be the
father does not impugn the legitimacy of the child, then the status of the child is
We deny the present petition. fixed, and the latter cannot choose to be the child of his mothers alleged
paramour. On the other hand, if the presumption of legitimacy is overthrown,
Under the New Civil Code, a child born and conceived during a valid marriage is the child cannot elect the paternity of the husband who successfully defeated the
presumed to be legitimate.[22] The presumption of legitimacy of children does not presumption.[31]
only flow out from a declaration contained in the statute but is based on the
broad principles of natural justice and the supposed virtue of the mother. The Do the acts of Enrique and Bernadette Yulo, the undisputed children of Corazon
presumption is grounded in a policy to protect innocent offspring from the odium Garcia with Ramon Yulo, in testifying for herein petitioner amount to
of illegitimacy.[23] impugnation of the legitimacy of the latter?

The presumption of legitimacy of the child, however, is not conclusive and We think not. As earlier stated, it is only in exceptional cases that the heirs of the
consequently, may be overthrown by evidence to the contrary. Hence, Article husband are allowed to contest the legitimacy of the child. There is nothing on
255 of the New Civil Code[24]provides: the records to indicate that Ramon Yulo has already passed away at the time of
the birth of the petitioner nor at the time of the initiation of this proceedings.
Article 255. Children born after one hundred and eighty days following the Notably, the case at bar was initiated by petitioner himself through his mother,
celebration of the marriage, and before three hundred days following its Corazon Garcia, and not through Enrique and Bernadette Yulo. It is settled that
dissolution or the separation of the spouses shall be presumed to be legitimate.
the legitimacy of the child can be impugned only in a direct action brought for Applying the best interest of the child principle, the trial court denied Ma.
that purpose, by the proper parties and within the period limited by law. Theresas motion and made the following observations:

Considering the foregoing, we find no reason to discuss the sufficiency of the It is a pity that the parties herein seem to be using their son to get at or to hurt
evidence presented by both parties on the petitioners claim of alleged filiation the other, something they should never do if they want to assure the normal
with the late William Liyao. In any event, there is no clear, competent and development and well-being of the boy.
positive evidence presented by the petitioner that his alleged father had
admitted or recognized his paternity. The Court allowed visitorial rights to the father knowing that the minor needs a
father, especially as he is a boy, who must have a father figure to recognize
WHEREFORE, the instant petition is DENIED. The assailed decision of the Court of something that the mother alone cannot give. Moreover, the Court believes that
Appeals in CA-G.R. CV No. 45394 is hereby AFFIRMED. No costs. the emotional and psychological well-being of the boy would be better served if
he were allowed to maintain relationships with his father.
SO ORDERED.
There being no law which compels the Court to act one way or the other on this
[G.R. No. 123450. August 31, 2005] matter, the Court invokes the provision of Art. 8, PD 603 as amended, otherwise
known as the Child and Youth Welfare Code, to wit:
GERARDO B. CONCEPCION, petitioner, vs. COURT OF APPEALS and MA.
THERESA ALMONTE, respondents. In all questions regarding the care, custody, education and property of the child,
his welfare shall be the paramount consideration.
DECISION
WHEREFORE, the respondents Motion for Reconsideration has to be, as it is
CORONA, J.: hereby DENIED.[12]

The child, by reason of his mental and physical immaturity, needs special Ma. Theresa elevated the case to the Court of Appeals, assigning as error the
safeguard and care, including appropriate legal protection before as well as after ruling of the trial court granting visitation rights to Gerardo. She likewise opposed
birth.[1] In case of assault on his rights by those who take advantage of his the continued use of Gerardos surname (Concepcion) despite the fact that Jose
innocence and vulnerability, the law will rise in his defense with the single- Gerardo had already been declared illegitimate and should therefore use her
minded purpose of upholding only his best interests. surname (Almonte). The appellate court denied the petition and
affirmed in toto the decision of the trial court.[13]
This is the story of petitioner Gerardo B. Concepcion and private respondent Ma.
Theresa Almonte, and a child named Jose Gerardo. Gerardo and Ma. Theresa On the issue raised by Ma. Theresa that there was nothing in the law that
were married on December 29, 1989.[2] After their marriage, they lived with Ma. granted a putative father visitation rights over his illegitimate child, the appellate
Theresas parents in Fairview, Quezon City.[3] Almost a year later, on December 8, court affirmed the best interest of the child policy invoked by the court a quo. It
1990, Ma. Theresa gave birth to Jose Gerardo.[4] ruled that [a]t bottom, it (was) the childs welfare and not the convenience of the
parents which (was) the primary consideration in granting visitation rights a few
Gerardo and Ma. Theresas relationship turned out to be short-lived, however. On hours once a week.[14]
December 19, 1991, Gerardo filed a petition to have his marriage to Ma. Theresa
annulled on the ground of bigamy.[5] He alleged that nine years before he married The appellate court likewise held that an illegitimate child cannot use the
Ma. Theresa on December 10, 1980, she had married one Mario Gopiao, which mothers surname motu proprio. The child, represented by the mother, should file
marriage was never annulled.[6] Gerardo also found out that Mario was still alive a separate proceeding for a change of name under Rule 103 of the Rules of Court
and was residing in Loyola Heights, Quezon City.[7] to effect the correction in the civil registry.[15]

Ma. Theresa did not deny marrying Mario when she was twenty years old. She, Undaunted, Ma. Theresa moved for the reconsideration of the adverse decision
however, averred that the marriage was a sham and that she never lived with of the appellate court. She also filed a motion to set the case for oral arguments
Mario at all.[8] so that she could better ventilate the issues involved in the controversy.

The trial court ruled that Ma. Theresas marriage to Mario was valid and After hearing the oral arguments of the respective counsels of the parties, the
subsisting when she married Gerardo and annulled her marriage to the latter for appellate court resolved the motion for reconsideration. It reversed its earlier
being bigamous. It declared Jose Gerardo to be an illegitimate child as a result. ruling and held that Jose Gerardo was not the son of Ma. Theresa by Gerardo but
The custody of the child was awarded to Ma. Theresa while Gerardo was granted by Mario during her first marriage:
visitation rights.[9]
It is, therefore, undeniable established by the evidence in this case that the
Ma. Theresa felt betrayed and humiliated when Gerardo had their marriage appellant [Ma. Theresa] was married to Mario Gopiao, and that she had never
annulled. She held him responsible for the bastardization of Gerardo. She moved entered into a lawful marriage with the appellee [Gerardo] since the so-called
for the reconsideration of the above decision INSOFAR ONLY as that portion of marriage with the latter was void ab initio. It was [Gerardo] himself who had
the decision which grant(ed) to the petitioner so-called visitation rights between established these facts. In other words, [Ma. Theresa] was legitimately married
the hours of 8 in the morning to 12:00 p.m. of any Sunday.[10] She argued that to Mario Gopiao when the child Jose Gerardo was born on December 8, 1990.
there was nothing in the law granting visitation rights in favor of the putative Therefore, the child Jose Gerardo under the law is the legitimate child of the legal
father of an illegitimate child.[11] She further maintained that Jose Gerardos and subsisting marriage between [Ma. Theresa] and Mario Gopiao; he cannot be
surname should be changed from Concepcion to Almonte, her maiden name, deemed to be the illegitimate child of the void and non-existent marriage
following the rule that an illegitimate child shall use the mothers surname. between [Ma. Theresa] and [Gerardo], but is said by the law to be the child of the
legitimate and existing marriage between [Ma. Theresa] and Mario Gopiao (Art.
Gerardo opposed the motion. He insisted on his visitation rights and the 164, Family Code). Consequently, [she] is right in firmly saying that [Gerardo] can
retention of Concepcion as Jose Gerardos surname. claim neither custody nor visitorial rights over the child Jose Gerardo. Further,
[Gerardo] cannot impose his name upon the child. Not only is it without legal
basis (even supposing the child to be his illegitimate child [Art. 146, The Family
Code]); it would tend to destroy the existing marriage between [Ma. Theresa] The presumption is quasi-conclusive and may be refuted only by the evidence of
and Gopiao, would prevent any possible rapproachment between the married physical impossibility of coitus between husband and wife within the first 120
couple, and would mean a judicial seal upon an illegitimate relationship.[16] days of the 300 days which immediately preceded the birth of the child.[31]

The appellate court brushed aside the common admission of Gerardo and Ma. To rebut the presumption, the separation between the spouses must be such as
Theresa that Jose Gerardo was their son. It gave little weight to Jose Gerardos to make marital intimacy impossible.[32] This may take place, for instance, when
birth certificate showing that he was born a little less than a year after Gerardo they reside in different countries or provinces and they were never together
and Ma. Theresa were married: during the period of conception.[33] Or, the husband was in prison during the
period of conception, unless it appears that sexual union took place through the
We are not unaware of the movants argument that various evidence exist that violation of prison regulations.[34]
appellee and the appellant have judicially admitted that the minor is their natural
child. But, in the same vein, We cannot overlook the fact that Article 167 of the Here, during the period that Gerardo and Ma. Theresa were living together in
Family Code mandates: Fairview, Quezon City, Mario was living in Loyola Heights which is also in Quezon
City. Fairview and Loyola Heights are only a scant four kilometers apart.
The child shall be considered legitimate although the mother may have declared
against its legitimacy or may have been sentenced as an adulteress. Not only did both Ma. Theresa and Mario reside in the same city but also that no
(underscoring ours) evidence at all was presented to disprove personal access between them.
Considering these circumstances, the separation between Ma. Theresa and her
Thus, implicit from the above provision is the fact that a minor cannot be lawful husband, Mario, was certainly not such as to make it physically impossible
deprived of his/her legitimate status on the bare declaration of the mother for them to engage in the marital act.
and/or even much less, the supposed father. In fine, the law and only the law
determines who are the legitimate or illegitimate children for ones legitimacy Sexual union between spouses is assumed. Evidence sufficient to defeat the
or illegitimacy cannot ever be compromised. Not even the birth certificate of the assumption should be presented by him who asserts the contrary. There is no
minor can change his status for the information contained therein are merely such evidence here. Thus, the presumption of legitimacy in favor of Jose Gerardo,
supplied by the mother and/or the supposed father. It should be what the law as the issue of the marriage between Ma. Theresa and Mario, stands.
says and not what a parent says it is.[17] (Emphasis supplied)
Gerardo relies on Ma. Theresas statement in her answer[35] to the petition for
Shocked and stunned, Gerardo moved for a reconsideration of the above annulment of marriage[36] that she never lived with Mario. He claims this was an
decision but the same was denied.[18] Hence, this appeal. admission that there was never any sexual relation between her and Mario, an
admission that was binding on her.
The status and filiation of a child cannot be compromised.[19] Article 164 of the
Family Code is clear. A child who is conceived or born during the marriage of his Gerardos argument is without merit.
parents is legitimate.[20]
First, the import of Ma. Theresas statement is that Jose Gerardo is not her
As a guaranty in favor of the child[21] and to protect his status of legitimacy, legitimate son with Mario but her illegitimate son with Gerardo. This declaration
Article 167 of the Family Code provides: ― an avowal by the mother that her child is illegitimate ― is the very declaration
that is proscribed by Article 167 of the Family Code.
Article 167. The child shall be considered legitimate although the mother may
have declared against its legitimacy or may have been sentenced as an The language of the law is unmistakable. An assertion by the mother against the
adulteress. legitimacy of her child cannot affect the legitimacy of a child born or conceived
within a valid marriage.
The law requires that every reasonable presumption be made in favor of
legitimacy.[22] We explained the rationale of this rule in the recent case Second, even assuming the truth of her statement, it does not mean that there
of Cabatania v. Court of Appeals[23]: was never an instance where Ma. Theresa could have been together with Mario
or that there occurred absolutely no intercourse between them. All she said was
The presumption of legitimacy does not only flow out of a declaration in the that she never lived with Mario. She never claimed that nothing ever happened
statute but is based on the broad principles of natural justice and the supposed between them.
virtue of the mother. It is grounded on the policy to protect the innocent
offspring from the odium of illegitimacy. Telling is the fact that both of them were living in Quezon City during the time
material to Jose Gerardos conception and birth. Far from foreclosing the
Gerardo invokes Article 166 (1)(b)[24] of the Family Code. He cannot. He has no possibility of marital intimacy, their proximity to each other only serves to
standing in law to dispute the status of Jose Gerardo. Only Ma. Theresas husband reinforce such possibility. Thus, the impossibility of physical access was never
Mario or, in a proper case,[25] his heirs, who can contest the legitimacy of the established beyond reasonable doubt.
child Jose Gerardo born to his wife.[26] Impugning the legitimacy of a child is a
strictly personal right of the husband or, in exceptional cases, his heirs.[27] Since Third, to give credence to Ma. Theresas statement is to allow her to arrogate
the marriage of Gerardo and Ma. Theresa was void from the very beginning, he unto herself a right exclusively lodged in the husband, or in a proper case, his
never became her husband and thus never acquired any right to impugn the heirs.[37] A mother has no right to disavow a child because maternity is never
legitimacy of her child. uncertain.[38] Hence, Ma. Theresa is not permitted by law to question Jose
Gerardos legitimacy.
The presumption of legitimacy proceeds from the sexual union in marriage,
particularly during the period of conception.[28] To overthrow this presumption Finally, for reasons of public decency and morality, a married woman cannot say
on the basis of Article 166 (1)(b) of the Family Code, it must be shown beyond that she had no intercourse with her husband and that her offspring is
reasonable doubt that there was no access that could have enabled the husband illegitimate.[39] The proscription is in consonance with the presumption in favor of
to father the child.[29] Sexual intercourse is to be presumed where personal family solidarity. It also promotes the intention of the law to lean toward the
access is not disproved, unless such presumption is rebutted by evidence to the legitimacy of children.[40]
contrary.[30]
Gerardos insistence that the filiation of Jose Gerardo was never an issue both in Having only his best interests in mind, we uphold the presumption of his
the trial court and in the appellate court does not hold water. The fact that both legitimacy.
Ma. Theresa and Gerardo admitted and agreed that Jose Gerardo was born to
them was immaterial. That was, in effect, an agreement that the child was As a legitimate child, Jose Gerardo shall have the right to bear the surnames of
illegitimate. If the Court were to validate that stipulation, then it would be his father Mario and mother Ma. Theresa, in conformity with the provisions of
tantamount to allowing the mother to make a declaration against the legitimacy the Civil Code on surnames.[50] A persons surname or family name identifies the
of her child and consenting to the denial of filiation of the child by persons other family to which he belongs and is passed on from parent to child.[51] Hence,
than her husband. These are the very acts from which the law seeks to shield the Gerardo cannot impose his surname on Jose Gerardo who is, in the eyes of the
child. law, not related to him in any way.

Public policy demands that there be no compromise on the status and filiation of The matter of changing Jose Gerardos name and effecting the corrections of the
a child.[41] Otherwise, the child will be at the mercy of those who may be so entries in the civil register regarding his paternity and filiation should be threshed
minded to exploit his defenselessness. out in a separate proceeding.

The reliance of Gerardo on Jose Gerardos birth certificate is misplaced. It has no In case of annulment or declaration of absolute nullity of marriage, Article 49 of
evidentiary value in this case because it was not offered in evidence before the the Family Code grants visitation rights to a parent who is deprived of custody of
trial court. The rule is that the court shall not consider any evidence which has his children. Such visitation rights flow from the natural right of both parent and
not been formally offered.[42] child to each others company. There being no such parent-child relationship
between them, Gerardo has no legally demandable right to visit Jose Gerardo.
Moreover, the law itself establishes the status of a child from the moment of his
birth.[43] Although a record of birth or birth certificate may be used as primary Our laws seek to promote the welfare of the child. Article 8 of PD 603, otherwise
evidence of the filiation of a child,[44] as the status of a child is determined by the known as the Child and Youth Welfare Code, is clear and unequivocal:
law itself, proof of filiation is necessary only when the legitimacy of the child is
being questioned, or when the status of a child born after 300 days following the Article 8. Childs Welfare Paramount. In all questions regarding the care, custody,
termination of marriage is sought to be established.[45] education and property of the child, his welfare shall be the paramount
consideration.
Here, the status of Jose Gerardo as a legitimate child was not under attack as it
could not be contested collaterally and, even then, only by the husband or, in Article 3 (1) of the United Nations Convention on the Rights of a Child of which
extraordinary cases, his heirs. Hence, the presentation of proof of legitimacy in the Philippines is a signatory is similarly emphatic:
this case was improper and uncalled for.
Article 3
In addition, a record of birth is merely prima facie evidence of the facts contained
therein.[46] As prima facie evidence, the statements in the record of birth may be 1. In all actions concerning children, whether undertaken by public or private
rebutted by more preponderant evidence. It is not conclusive evidence with social welfare institutions, courts of law, administrative authorities or legislative
respect to the truthfulness of the statements made therein by the interested bodies, the best interests of the child shall be a primary consideration.
parties.[47] Between the certificate of birth which is prima facie evidence of Jose
Gerardos illegitimacy and the quasi-conclusive presumption of law (rebuttable The State as parens patriae affords special protection to children from abuse,
only by proof beyond reasonable doubt) of his legitimacy, the latter shall prevail. exploitation and other conditions prejudicial to their development. It is
Not only does it bear more weight, it is also more conducive to the best interests mandated to provide protection to those of tender years.[52] Through its laws, the
of the child and in consonance with the purpose of the law. State safeguards them from every one, even their own parents, to the end that
their eventual development as responsible citizens and members of society shall
It perplexes us why both Gerardo and Ma. Theresa would doggedly press for Jose not be impeded, distracted or impaired by family acrimony. This is especially
Gerardos illegitimacy while claiming that they both had the childs interests at significant where, as in this case, the issue concerns their filiation as it strikes at
heart. The law, reason and common sense dictate that a legitimate status is more their very identity and lineage.
favorable to the child. In the eyes of the law, the legitimate child enjoys a
preferred and superior status. He is entitled to bear the surnames of both his WHEREFORE, the petition is hereby DENIED. The September 14, 1995 and
father and mother, full support and full inheritance.[48] On the other hand, an January 10, 1996 resolutions of the Court of Appeals in CA-G.R. CV No. 40651 are
illegitimate child is bound to use the surname and be under the parental hereby AFFIRMED.
authority only of his mother. He can claim support only from a more limited
group and his legitime is only half of that of his legitimate Costs against petitioner.
counterpart.[49] Moreover (without unwittingly exacerbating the discrimination
against him), in the eyes of society, a bastard is usually regarded as bearing a SO ORDERED.
stigma or mark of dishonor. Needless to state, the legitimacy presumptively
vested by law upon Jose Gerardo favors his interest.

It is unfortunate that Jose Gerardo was used as a pawn in the bitter squabble
between the very persons who were passionately declaring their concern for
him. The paradox was that he was made to suffer supposedly for his own sake.
This madness should end.

This case has been pending for a very long time already. What is specially tragic is
that an innocent child is involved. Jose Gerardo was barely a year old when these
proceedings began. He is now almost fifteen and all this time he has been a
victim of incessant bickering. The law now comes to his aid to write finis to the
controversy which has unfairly hounded him since his infancy.