THIRD DIVISION

SOCIAL SECURITY SYSTEM, G.R. No. 165545

Petitioner,
Present:

QUISUMBING, Chairperson,*
-versus- CARPIO, Acting Chairperson,
CARPIO MORALES, and
TINGA, JJ.

TERESITA JARQUE VDA. DE BAILON,

Respondent. Promulgated:

March 24, 2006

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

DECISION

CARPIO MORALES, J.:

The Court of Appeals Decision[1] dated June 23, 2004[2] and Resolution dated September 28, 2004[3] reversing the
Resolution dated April 2, 2003[4] and Order dated June 4, 2003[5] of the Social Security Commission (SSC) in SSC Case
No. 4-15149-01 are challenged in the present petition for review on certiorari.

On April 25, 1955, Clemente G. Bailon (Bailon) and Alice P. Diaz (Alice) contracted marriage in Barcelona,
Sorsogon.[6]

More than 15 years later or on October 9, 1970, Bailon filed before the then Court of First Instance (CFI) of Sorsogon
a petition[7] to declare Alice presumptively dead.

By Order of December 10, 1970,[8] the CFI granted the petition, disposing as follows:

WHEREFORE, there being no opposition filed against the petition notwithstanding the publication of the Notice of
Hearing in a newspaper of general circulation in the country, Alice Diaz is hereby declared to [sic] all legal intents
and purposes, except for those of succession, presumptively dead.

SO ORDERED.[9] (Underscoring supplied)

Close to 13 years after his wife Alice was declared presumptively dead or on August 8, 1983, Bailon contracted
marriage with Teresita Jarque (respondent) in Casiguran, Sorsogon.[10]

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

Respondent thereupon filed a claim for funeral benefits, and was granted P12,000[12] by the SSS.

Respondent filed on March 11, 1998 an additional claim for death benefits[13] which was also granted by the SSS
on April 6, 1998.[14]

Cecilia Bailon-Yap (Cecilia), who claimed to be a daughter of Bailon and one Elisa Jayona (Elisa) contested before the
SSS the release to respondent of the death and funeral benefits. She claimed that Bailon contracted three marriages
in his lifetime, the first with Alice, the second with her mother Elisa, and the third with respondent, all of whom are
still alive; she, together with her siblings, paid for Bailons medical and funeral expenses; and all the documents
submitted by respondent to the SSS in support of her claims are spurious.

In support of her claim, Cecilia and her sister Norma Bailon Chavez (Norma) submitted an Affidavit dated February
13, 1999[15] averring that they are two of nine children of Bailon and Elisa who cohabited as husband and wife as
early as 1958; and they were reserving their right to file the necessary court action to contest the marriage between
Bailon and respondent as they personally know that Alice is still very much alive.[16]

In the meantime, on April 5, 1999, a certain Hermes P. Diaz, claiming to be the brother and guardian of Aliz P. Diaz,
filed before the SSS a claim for death benefits accruing from Bailons death,[17] he further attesting in a sworn
statement[18] that it was Norma who defrayed Bailons funeral expenses.

Elisa and seven of her children[19] subsequently filed claims for death benefits as Bailons beneficiaries before the
SSS.[20]

Atty. Marites C. de la Torre of the Legal Unit of the SSS Bicol Cluster, Naga City recommended the cancellation of
payment of death pension benefits to respondent and the issuance of an order for the refund of the amount paid to
her from February 1998 to May 1999 representing such benefits; the denial of the claim of Alice on the ground that
she was not dependent upon Bailon for support during his lifetime; and the payment of the balance of the five-year
guaranteed pension to Bailons beneficiaries according to the order of preference provided under the law, after the
amount erroneously paid to respondent has been collected. The pertinent portions of the Memorandum read:

1. Aliz [sic] Diaz never disappeared. The court must have been misled by misrepresentation in declaring the first
wife, Aliz [sic] Diaz, as presumptively dead.

xxxx

x x x the Order of the court in the Petition to Declare Alice Diaz Presumptively Dead, did not become final. The
presence of Aliz [sic] Diaz, is contrary proof that rendered it invalid.
xxxx

3. It was the deceased member who abandoned his wife, Aliz [sic] Diaz. He, being in bad faith, and is the deserting
spouse, his remarriage is void, being bigamous.

xxxx

In this case, it is the deceased member who was the deserting spouse and who remarried, thus his marriage to
Teresita Jarque, for the second time was void as it was bigamous. To require affidavit of reappearance to terminate
the second marriage is not necessary as there is no disappearance of Aliz [sic] Diaz, the first wife, and a voidable
marriage [sic], to speak of.[21](Underscoring supplied)

In the meantime, the SSS Sorsogon Branch, by letter of August 16, 2000,[22] advised respondent that as Cecilia and
Norma were the ones who defrayed Bailons funeral expenses, she should return the P12,000 paid to her.

In a separate letter dated September 7, 1999,[23] the SSS advised respondent of the cancellation of her monthly
pension for death benefits in view of the opinion rendered by its legal department that her marriage with Bailon was
void as it was contracted while the latters marriage with Alice was still subsisting; and the December 10, 1970 CFI
Order declaring Alice presumptively dead did not become final, her presence being contrary proof against the
validity of the order. It thus requested respondent to return the amount of P24,000 representing the total amount
of monthly pension she had received from the SSS from February 1998 to May 1999.
Respondent protested the cancellation of her monthly pension for death benefits by letter to the SSS dated October
12, 1999.[24] In a subsequent letter dated November 27, 1999[25] to the SSC, she reiterated her request for the
release of her monthly pension, asserting that her marriage with Bailon was not declared before any court of justice
as bigamous or unlawful, hence, it remained valid and subsisting for all legal intents and purposes as in fact Bailon
designated her as his beneficiary.

The SSS, however, by letter to respondent dated January 21, 2000,[26] maintained the denial of her claim for and the
discontinuance of payment of monthly pension. It advised her, however, that she was not deprived of her right to
file a petition with the SSC.

Respondent thus filed a petition[27] against the SSS before the SSC for the restoration to her of her entitlement to
monthly pension.

In the meantime, respondent informed the SSS that she was returning, under protest, the amount of P12,000
representing the funeral benefits she received, she alleging that Norma and her siblings forcibly and coercively
prevented her from spending any amount during Bailons wake.[28]

After the SSS filed its Answer[29] to respondents petition, and the parties filed their respective Position Papers, one
Alicia P. Diaz filed an Affidavit[30] dated August 14, 2002 with the SSS Naga Branch attesting that she is the widow of
Bailon; she had only recently come to know of the petition filed by Bailon to declare her presumptively dead; it is
not true that she disappeared as Bailon could have easily located her, she having stayed at her parents residence in
Barcelona, Sorsogon after she found out that Bailon was having an extramarital affair; and Bailon used to visit her
even after their separation.

By Resolution of April 2, 2003, the SSC found that the marriage of respondent to Bailon was void and, therefore, she
was just a common-law-wife. Accordingly it disposed as follows, quoted verbatim:

WHEREFORE, this Commission finds, and so holds, that petitioner Teresita Jarque-Bailon is not the legitimate spouse
and primary beneficiary of SSS member Clemente Bailon.

Accordingly, the petitioner is hereby ordered to refund to the SSS the amount of P24,000.00 representing the death
benefit she received therefrom for the period February 1998 until May 1999 as well as P12,000.00 representing the
funeral benefit.

The SSS is hereby ordered to pay Alice (a.k.a. Aliz) Diaz-Bailon the appropriate death benefit arising from the demise
of SSS member Clemente Bailon in accordance with Section 8(e) and (k) as well as Section 13 of the SS Law, as
amended, and its prevailing rules and regulations and to inform this Commission of its compliance herewith.

SO ORDERED.[31] (Underscoring supplied)

In so ruling against respondent, the SSC ratiocinated.

After a thorough examination of the evidence at hand, this Commission comes to the inevitable conclusion that
the petitioner is not the legitimate wife of the deceased member.

xxxx

There is x x x ample evidence pointing to the fact that, contrary to the declaration of the then CFI of Sorsogon
(10th Judicial District), the first wife never disappeared as the deceased member represented in bad faith. This
Commission accords credence to the findings of the SSS contained in its Memorandum dated August 9,
1999,[32] revealing that Alice (a.k.a. Aliz) Diaz never left Barcelona, Sorsogon, after her separation from Clemente
Bailon x x x.
As the declaration of presumptive death was extracted by the deceased member using artifice and by exerting fraud
upon the unsuspecting court of law, x x x it never had the effect of giving the deceased member the right to marry
anew. x x x [I]t is clear that the marriage to the petitioner is void, considering that the first marriage on April 25,
1955 to Alice Diaz was not previously annulled, invalidated or otherwise dissolved during the lifetime of the parties
thereto. x x x as determined through the investigation conducted by the SSS, Clemente Bailon was the abandoning
spouse, not Alice Diaz Bailon.

xxxx

It having been established, by substantial evidence, that the petitioner was just a common-law wife of the deceased
member, it necessarily follows that she is not entitled as a primary beneficiary, to the latters death benefit. x x x

xxxx

It having been determined that Teresita Jarque was not the legitimate surviving spouse and primary beneficiary of
Clemente Bailon, it behooves her to refund the total amount of death benefit she received from the SSS for the
period from February 1998 until May 1999 pursuant to the principle of solutio indebiti x x x

Likewise, it appearing that she was not the one who actually defrayed the cost of the wake and burial of Clemente
Bailon, she must return the amount of P12,000.00 which was earlier given to her by the SSS as funeral
benefit.[33] (Underscoring supplied)

Respondents Motion for Reconsideration[34] having been denied by Order of June 4, 2003, she filed a petition for
review[35] before the Court of Appeals (CA).

By Decision of June 23, 2004, the CA reversed and set aside the April 2, 2003 Resolution and June 4, 2003 Order of
the SSC and thus ordered the SSS to pay respondent all the pension benefits due her. Held the CA:

x x x [T]he paramount concern in this case transcends the issue of whether or not the decision of the then CFI, now
RTC, declaring Alice Diaz presumptively dead has attained finality but, more importantly, whether or not the
respondents SSS and Commission can validly re-evaluate the findings of the RTC, and on its own, declare the latters
decision to be bereft of any basis.On similar import, can respondents SSS and Commission validly declare the first
marriage subsisting and the second marriage null and void?

xxxx

x x x while it is true that a judgment declaring a person presumptively dead never attains finality as the finding that
the person is unheard of in seven years is merely a presumption juris tantum, the second marriage contracted by a
person with an absent spouse endures until annulled. It is only the competent court that can nullify the second
marriage pursuant to Article 87 of the Civil Code and upon the reappearance of the missing spouse, which action for
annulment may be filed. Nowhere does the law contemplates [sic] the possibility that respondent SSS may validly
declare the second marriage null and void on the basis alone of its own investigation and declare that the decision
of the RTC declaring one to be presumptively dead is without basis.

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

x x x [A]ssuming arguendo that respondent SSS actually possesses the authority to declare the decision of the RTC to
be without basis, the procedure it followed was offensive to the principle of fair play and thus its findings are of
doubtful quality considering that petitioner Teresita was not given ample opportunity to present evidence for and
her behalf.

xxxx

Respondent SSS is correct in stating that the filing of an Affidavit of Reappearance with the Civil Registry is no longer
practical under the premises. Indeed, there is no more first marriage to restore as the marital bond between Alice
Diaz and Clemente Bailon was already terminated upon the latters death. Neither is there a second marriage to
terminate because the second marriage was likewise dissolved by the death of Clemente Bailon.

However, it is not correct to conclude that simply because the filing of the Affidavit of Reappearance with the Civil
Registry where parties to the subsequent marriage reside is already inutile, the respondent SSS has now the
authority to review the decision of the RTC and consequently declare the second marriage null and
void.[36] (Emphasis and underscoring supplied)

The SSC and the SSS separately filed their Motions for Reconsideration[37] which were both denied for lack of merit.

Hence, the SSS present petition for review on certiorari[38] anchored on the following grounds:

THE DECISION OF THE HONORABLE COURT OF APPEALS IS CONTRARY TO LAW.

II

THE HONORABLE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OF JURISDICTION. [39]

The SSS faults the CA for failing to give due consideration to the findings of facts of the SSC on the prior and
subsisting marriage between Bailon and Alice; in disregarding the authority of the SSC to determine to whom,
between Alice and respondent, the death benefits should be awarded pursuant to Section 5[40] of the Social Security
Law; and in declaring that the SSS did not give respondent due process or ample opportunity to present evidence in
her behalf.

The SSS submits that the observations and findings relative to the CFI proceedings are of no moment to the present
controversy, as the same may be considered only as obiter dicta in view of the SSCs finding of the existence of a
prior and subsisting marriage between Bailon and Alice by virtue of which Alice has a better right to the death
benefits.[41]

The petition fails.

That the SSC is empowered to settle any dispute with respect to SSS coverage, benefits and contributions, there is
no doubt. In so exercising such power, however, it cannot review, much less reverse, decisions rendered by courts
of law as it did in the case at bar when it declared that the December 10, 1970 CFI Order was obtained through
fraud and subsequently disregarded the same, making its own findings with respect to the validity of Bailon and
Alices marriage on the one hand and the invalidity of Bailon and respondents marriage on the other.

In interfering with and passing upon the CFI Order, the SSC virtually acted as an appellate court. The law does not
give the SSC unfettered discretion to trifle with orders of regular courts in the exercise of its authority to determine
the beneficiaries of the SSS.
The two marriages involved herein having been solemnized prior to the effectivity on August 3, 1988 of the Family
Code, the applicable law to determine their validity is the Civil Code which was the law in effect at the time of their
celebration.[42]

Article 83 of the Civil Code[43] provides:

Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person
with any person other than such first spouse shall be illegal and void from its performance, unless:

(1) The first marriage was annulled or dissolved; or

(2) The first spouse had been absent for seven consecutive years at the time of the second marriage without the
spouse present having news of the absentee being alive, or if the absentee, though he has been absent for less than
seven years, is generally considered as dead and believed to be so by the spouse present at the time of contracting
such subsequent marriage, or if the absentee is presumed dead according to Articles 390 and 391. The marriage so
contracted shall be valid in any of the three cases until declared null and void by a competent court. (Emphasis and
underscoring supplied)

Under the foregoing provision of the Civil Code, a subsequent marriage contracted during the lifetime of the first
spouse is illegal and void ab initio unless the prior marriage is first annulled or dissolved or contracted under any of
the three exceptional circumstances. It bears noting that the marriage under any of these exceptional cases is
deemed valid until declared null and void by a competent court. It follows that the onus probandi in these cases
rests on the party assailing the second marriage.[44]

In the case at bar, as found by the CFI, Alice had been absent for 15 consecutive years[45] when Bailon sought the
declaration of her presumptive death, which judicial declaration was not even a requirement then for purposes of
remarriage.[46]

Eminent jurist Arturo M. Tolentino (now deceased) commented:

Where a person has entered into two successive marriages, a presumption arises in favor of the validity of the
second marriage, and the burden is on the party attacking the validity of the second marriage to prove that the first
marriage had not been dissolved; it is not enough to prove the first marriage, for it must also be shown that it had
not ended when the second marriage was contracted. The presumption in favor of the innocence of the defendant
from crime or wrong and of the legality of his second marriage, will prevail over the presumption of the continuance
of life of the first spouse or of the continuance of the marital relation with such first spouse.[47] (Underscoring
supplied)

Under the Civil Code, a subsequent marriage being voidable,[48] it is terminated by final judgment of annulment in a
case instituted by the absent spouse who reappears or by either of the spouses in the subsequent marriage.

Under the Family Code, no judicial proceeding to annul a subsequent marriage is necessary. Thus Article 42 thereof
provides:

Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by
the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the
previous marriage or declaring it void ab initio.

A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the
residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the
spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined
in case such fact is disputed. (Emphasis and underscoring supplied)

The termination of the subsequent marriage by affidavit provided by the above-quoted provision of the Family Code
does not preclude the filing of an action in court to prove the reappearance of the absentee and obtain a
declaration of dissolution or termination of the subsequent marriage.[49]

If the absentee reappears, but no step is taken to terminate the subsequent marriage, either by affidavit or by court
action, such absentees mere reappearance, even if made known to the spouses in the subsequent marriage, will not
terminate such marriage.[50] Since the second marriage has been contracted because of a presumption that the
former spouse is dead, such presumption continues inspite of the spouses physical reappearance, and by fiction of
law, he or she must still be regarded as legally an absentee until the subsequent marriage is terminated as provided
by law.[51]

If the subsequent marriage is not terminated by registration of an affidavit of reappearance or by judicial declaration
but by death of either spouse as in the case at bar, Tolentino submits:

x x x [G]enerally if a subsequent marriage is dissolved by the death of either spouse, the effects of dissolution of
valid marriages shall arise. The good or bad faith of either spouse can no longer be raised, because, as in annullable
or voidable marriages, the marriage cannot be questioned except in a direct action for annulment.[52] (Underscoring
supplied)

Similarly, Lapuz v. Eufemio[53] instructs:

In fact, even if the bigamous marriage had not been void ab initio but only voidable under Article 83, paragraph 2, of
the Civil Code, because the second marriage had been contracted with the first wife having been an absentee for
seven consecutive years, or when she had been generally believed dead, still the action for annulment became
extinguished as soon as one of the three persons involved had died, as provided in Article 87, paragraph 2, of the
Code, requiring that the action for annulment should be brought during the lifetime of any one of the parties
involved. And furthermore, the liquidation of any conjugal partnership that might have resulted from
such voidable marriage must be carried out in the testate or intestate proceedings of the deceased spouse, as
expressly provided in Section 2 of the Revised Rule 73, and not in the annulment proceeding.[54] (Emphasis and
underscoring supplied)

It bears reiterating that a voidable marriage cannot be assailed collaterally except in a direct
proceeding. Consequently, such marriages can be assailed only during the lifetime of the parties and not after the
death of either, in which case the parties and their offspring will be left as if the marriage had been perfectly
valid.[55] Upon the death of either, the marriage cannot be impeached, and is made good ab initio.[56]

In the case at bar, as no step was taken to nullify, in accordance with law, Bailons and respondents marriage prior to
the formers death in 1998, respondent is rightfully the dependent spouse-beneficiary of Bailon.

In light of the foregoing discussions, consideration of the other issues raised has been rendered unnecessary.

WHEREFORE, the petition is DENIED.

No costs.

SO ORDERED.
THIRD DIVISION

ANGELITA VALDEZ, G.R. No. 180863

Petitioner,
Present:

YNARES-SANTIAGO, J.,
Chairperson,
- versus - CHICO-NAZARIO,
VELASCO, JR.,
NACHURA, and
PERALTA, JJ.

Promulgated:
REPUBLIC OF THE PHILIPPINES,
Respondent. September 8, 2009

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

DECISION

NACHURA, J.:

Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the Decision of
the Regional Trial Court (RTC) of Camiling, Tarlac dated November 12, 2007 dismissing petitioner Angelita Valdezs
petition for the declaration of presumptive death of her husband, Sofio Polborosa (Sofio).

The facts of the case are as follows:

Petitioner married Sofio on January 11, 1971 in Pateros, Rizal. On December 13, 1971, petitioner gave birth to the
spouses only child, Nancy. According to petitioner, she and Sofio argued constantly because the latter was
unemployed and did not bring home any money. In March 1972, Sofio left their conjugal dwelling. Petitioner and
their child waited for him to return but, finally, in May 1972, petitioner decided to go back to her parents home in
Bancay 1st, Camiling, Tarlac. Three years passed without any word from Sofio. In October 1975, Sofio showed up at
Bancay 1st. He and petitioner talked for several hours and they agreed to separate. They executed a document to
that effect.[1] That was the last time petitioner saw him. After that, petitioner didnt hear any news of Sofio, his
whereabouts or even if he was alive or not.[2]

Believing that Sofio was already dead, petitioner married Virgilio Reyes on June 20, 1985.[3] Subsequently, however,
Virgilios application for naturalization filed with the United States Department of Homeland Security was denied
because petitioners marriage to Sofio was subsisting.[4] Hence, on March 29, 2007, petitioner filed a Petition before
the RTC of Camiling, Tarlac seeking the declaration of presumptive death of Sofio.

The RTC rendered its Decision[5] on November 12, 2007, dismissing the Petition for lack of merit. The RTC held that
Angelita was not able to prove the well-grounded belief that her husband Sofio Polborosa was already dead. It said
that under Article 41 of the Family Code, the present spouse is burdened to prove that her spouse has been absent
and that she has a well-founded belief that the absent spouse is already dead before the present spouse may
contract a subsequent marriage. This belief, the RTC said, must be the result of proper and honest-to-goodness
inquiries and efforts to ascertain the whereabouts of the absent spouse.
The RTC found that, by petitioners own admission, she did not try to find her husband anymore in light of their
mutual agreement to live separately. Likewise, petitioners daughter testified that her mother prevented her from
looking for her father. The RTC also said there is a strong possibility that Sofio is still alive, considering that he would
have been only 61 years old by then, and people who have reached their 60s have not become increasingly low in
health and spirits, and, even assuming as true petitioners testimony that Sofio was a chain smoker and a drunkard,
there is no evidence that he continues to drink and smoke until now.

Petitioner filed a motion for reconsideration.[6] She argued that it is the Civil Code that applies in this case and not
the Family Code since petitioners marriage to Sofio was celebrated on January 11, 1971, long before the Family
Code took effect. Petitioner further argued that she had acquired a vested right under the provisions of the Civil
Code and the stricter provisions of the Family Code should not be applied against her because Title XIV of the Civil
Code, where Articles 384 and 390 on declaration of absence and presumption of death, respectively, can be found,
was not expressly repealed by the Family Code. To apply the stricter provisions of the Family Code will impair the
rights petitioner had acquired under the Civil Code.

The RTC denied the Motion for Reconsideration in a Resolution dated December 10, 2007.[7]

Petitioner now comes before this Court seeking the reversal of the RTC Decision and Motion for Reconsideration.

In its Manifestation and Motion,[8] the Office of the Solicitor General (OSG) recommended that the Court set aside
the assailed RTC Decision and grant the Petition to declare Sofio presumptively dead. The OSG argues that the
requirement of well-founded belief under Article 41 of the Family Code is not applicable to the instant case. It said
that petitioner could not be expected to comply with this requirement because it was not yet in existence during
her marriage to Virgilio Reyes in 1985. The OSG further argues that before the effectivity of the Family Code,
petitioner already acquired a vested right as to the validity of her marriage to Virgilio Reyes based on the presumed
death of Sofio under the Civil Code. This vested right and the presumption of Sofios death, the OSG posits, could not
be affected by the obligations created under the Family Code.[9]

Next, the OSG contends that Article 390 of the Civil Code was not repealed by Article 41 of the Family Code. [10] Title
XIV of the Civil Code, the OSG said, was not one of those expressly repealed by the Family Code. Moreover, Article
256 of the Family Code provides that its provisions shall not be retroactively applied if they will prejudice or impair
vested or acquired rights.[11]

The RTC Decision, insofar as it dismissed the Petition, is affirmed. However, we must state that we are denying the
Petition on grounds different from those cited in the RTC Decision.

Initially, we discuss a procedural issue. Under the Rules of Court, a party may directly appeal to this Court from a
decision of the trial court only on pure questions of law. A question of law lies, on one hand, when the doubt or
difference arises as to what the law is on a certain set of facts; on the other hand, a question of fact exists when the
doubt or difference arises as to the truth or falsehood of the alleged facts. Here, the facts are not disputed; the
controversy merely relates to the correct application of the law or jurisprudence to the undisputed facts. [12]

The RTC erred in applying the provisions of the Family Code and holding that petitioner needed to prove a well-
founded belief that Sofio was already dead. The RTC applied Article 41 of the Family Code, to wit:

Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless
before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and
the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance
where there is danger under the circumstances set forth in the provisions of Article 391 of the Civil Code, an
absence of only two years shall be sufficient.
For the purpose of contracting a subsequent marriage under the preceding paragraph, the spouse present must
institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee,
without prejudice to the effect of reappearance of the absent spouse.

It is readily apparent, however, that the marriages of petitioner to Sofio and Virgilio on January 11, 1971 and June
20, 1985, respectively, were both celebrated under the auspices of the Civil Code.

The pertinent provision of the Civil Code is Article 83:

Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person
with any person other than such first spouse shall be illegal and void from its performance, unless:

(1) The first marriage was annulled or dissolved; or

(2) The first spouse had been absent for seven consecutive years at the time of the second marriage without the
spouse present having news of the absentee being alive, of if the absentee, though he has been absent for less than
seven years, is generally considered as dead and believed to be so by the spouse present at the time of contracting
such subsequent marriage, or if the absentee is presumed dead according to Articles 390 and 391. The marriage so
contracted shall be valid in any of the three cases until declared null and void by a competent court.

Article 390 of the Civil Code states:

Art. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be
presumed dead for all purposes, except for those of succession.

The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten
years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that
his succession may be opened.

The Court, on several occasions, had interpreted the above-quoted provision in this wise:

For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially declared an
absentee. The declaration of absence made in accordance with the provisions of the Civil Code has for its sole
purpose to enable the taking of the necessary precautions for the administration of the estate of the absentee. For
the celebration of civil marriage, however, the law only requires that the former spouse has been absent for seven
consecutive years at the time of the second marriage, that the spouse present does not know his or her former
spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believes at
the time of the celebration of the marriage.[13]

Further, the Court explained that presumption of death cannot be the subject of court proceedings independent of
the settlement of the absentees estate.

In re Szatraw[14] is instructive. In that case, petitioner contracted marriage with a Polish national in 1937. They lived
together as husband and wife for three years. Sometime in 1940, the husband, on the pretext of visiting some
friends, left the conjugal abode with their child and never returned. After inquiring from friends, petitioner found
that her husband went to Shanghai, China. However, friends who came from Shanghai told her that the husband
was not seen there. In 1948, petitioner filed a petition for the declaration of presumptive death of her husband
arguing that since the latter had been absent for more than seven years and she had not heard any news from him
and about her child, she believes that he is dead. In deciding the case, the Court said:

The petition is not for the settlement of the estate of Nicolai Szatraw, because it does not appear that he possessed
property brought to the marriage and because he had acquired no property during his married life with the
petitioner. The rule invoked by the latter is merely one of evidence which permits the court to presume that a
person is dead after the fact that such person had been unheard from in seven years had been established. This
presumption may arise and be invoked and made in a case, either in an action or in a special proceeding, which is
tried or heard by, and submitted for decision to, a competent court. Independently of such an action or special
proceeding, the presumption of death cannot be invoked, nor can it be made the subject of an action or special
proceeding. In this case, there is no right to be enforced nor is there a remedy prayed for by the petitioner against
her absent husband. Neither is there a prayer for the final determination of his right or status or for the
ascertainment of a particular fact (Hagans v. Wislizenus, 42 Phil. 880), for the petition does not pray for a
declaration that the petitioner's husband is dead, but merely asks for a declaration that he be presumed dead
because he had been unheard from in seven years. If there is any pretense at securing a declaration that the
petitioner's husband is dead, such a pretension cannot be granted because it is unauthorized. The petition is for a
declaration that the petitioner's husband is presumptively dead. But this declaration, even if judicially made, would
not improve the petitioner's situation, because such a presumption is already established by law. A judicial
pronouncement to that effect, even if final and executory, would still be a prima facie presumption only. It is still
disputable. It is for that reason that it cannot be the subject of a judicial pronouncement or declaration, if it is the
only question or matter involved in a case, or upon which a competent court has to pass. The latter must decide
finally the controversy between the parties, or determine finally the right or status of a party or establish finally a
particular fact, out of which certain rights and obligations arise or may arise; and once such controversy is decided
by a final judgment, or such right or status determined, or such particular fact established, by a final decree, then
the judgment on the subject of the controversy, or the decree upon the right or status of a party or upon the
existence of a particular fact, becomes res judicata, subject to no collateral attack, except in a few rare instances
especially provided by law. It is, therefore, clear that a judicial declaration that a person is presumptively dead,
because he had been unheard from in seven years, being a presumption juris tantum only, subject to contrary proof,
cannot reach the stage of finality or become final. Proof of actual death of the person presumed dead because he
had been unheard from in seven years, would have to be made in another proceeding to have such particular fact
finally determined. If a judicial decree declaring a person presumptively dead, because he had not been heard from
in seven years, cannot become final and executory even after the lapse of the reglementary period within which an
appeal may be taken, for such presumption is still disputable and remains subject to contrary proof, then a petition
for such a declaration is useless, unnecessary, superfluous and of no benefit to the petitioner.[15]

In Lukban v. Republic,[16] petitioner Lourdes G. Lukban contracted marriage with Francisco Chuidian on December
10, 1933. A few days later, on December 27, Francisco left Lourdes after a violent quarrel. She did not hear from him
after that day. Her diligent search, inquiries from his parents and friends, and search in his last known address,
proved futile. Believing her husband was already dead since he had been absent for more than twenty years,
petitioner filed a petition in 1956 for a declaration that she is a widow of her husband who is presumed to be dead
and has no legal impediment to contract a subsequent marriage. On the other hand, the antecedents in Gue v.
Republic[17]are similar to Szatraw. On January 5, 1946, Angelina Gues husband left Manila where they were residing
and went to Shanghai, China. From that day on, he had not been heard of, had not written to her, nor in anyway
communicated with her as to his whereabouts. Despite her efforts and diligence, she failed to locate him. After 11
years, she asked the court for a declaration of the presumption of death of Willian Gue, pursuant to the provisions
of Article 390 of the Civil Code of the Philippines.

In both cases, the Court reiterated its ruling in Szatraw. It held that a petition for judicial declaration that petitioner's
husband is presumed to be dead cannot be entertained because it is not authorized by law.[18]
From the foregoing, it can be gleaned that, under the Civil Code, the presumption of death is established by
law[19] and no court declaration is needed for the presumption to arise. Since death is presumed to have taken place
by the seventh year of absence,[20] Sofio is to be presumed dead starting October 1982.

Consequently, at the time of petitioners marriage to Virgilio, there existed no impediment to petitioners capacity to
marry, and the marriage is valid under paragraph 2 of Article 83 of the Civil Code.

Further, considering that it is the Civil Code that applies, proof of well-founded belief is not required. Petitioner
could not have been expected to comply with this requirement since the Family Code was not yet in effect at the
time of her marriage to Virgilio. The enactment of the Family Code in 1988 does not change this conclusion. The
Family Code itself states:

Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in
accordance with the Civil Code or other laws.

To retroactively apply the provisions of the Family Code requiring petitioner to exhibit well-founded belief will,
ultimately, result in the invalidation of her second marriage, which was valid at the time it was celebrated. Such a
situation would be untenable and would go against the objectives that the Family Code wishes to achieve.

In sum, we hold that the Petition must be dismissed since no decree on the presumption of Sofios death can be
granted under the Civil Code, the same presumption having arisen by operation of law. However, we declare that
petitioner was capacitated to marry Virgilio at the time their marriage was celebrated in 1985 and, therefore, the
said marriage is legal and valid.

WHEREFORE, the foregoing premises considered, the Petition is DENIED.

SECOND DIVISION

G.R. No. 187061, October 08, 2014

CELERINA J. SANTOS, Petitioner, v. RICARDO T. SANTOS, Respondent.

DECISION

LEONEN, J.:

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 not the proper remedy when the person declared
presumptively dead has never been absent.

This is a petition for review on certiorari filed by Celerina J. Santos, assailing the Court of Appeals'
resolutions dated November 28, 2008 and March 5, 2009. The Court of Appeals dismissed the petition for
the annulment of the trial court's judgment declaring her presumptively dead.

On July 27, 2007, the Regional Trial Court of Tarlac City declared petitioner Celerina J. Santos (Celerina)
presumptively dead after her husband, respondent Ricardo T. Santos (Ricardo), had filed a petition for
declaration of absence or presumptive death for the purpose of remarriage on June 15, 2007.1 Ricardo
remarried on September 17, 2008.2 chanro bles law

In his petition for declaration of absence or presumptive death, Ricardo alleged that he and Celerina rented
an apartment somewhere in San Juan, Metro Manila; after they had gotten married on June 18, 1980.3 After
a year, they moved to Tarlac City. They were engaged in the buy and sell business.4 chan robles law

Ricardo claimed that their business did not prosper.5 As a result, Celerina convinced him to allow her to work
as a domestic helper in Hong Kong.6 Ricardo initially refused but because of Celerina's insistence, he allowed
her to work abroad.7 She allegedly applied in an employment agency in Ermita, Manila, in February 1995.
She left Tarlac two months after and was never heard from again.8 chanrobles law

Ricardo further alleged that he exerted efforts to locate Celerina.9 He went to Celerina's parents in Cubao,
Quezon City, but they, too, did not know their daughter's whereabouts.10 He also inquired about her from
other relatives and friends, but no one gave him any information.11 chanro bleslaw

Ricardo claimed that it was almost 12 years from the date of his Regional Trial Court petition since Celerina
left. He believed that she had passed away.12 chanroble slaw

Celerina claimed that she learned about Ricardo's petition only sometime in October 2008 when she could
no longer avail the remedies of new trial, appeal, petition for relief, or other appropriate remedies.13 chan roble slaw

On November 17, 2008, Celerina filed a petition for annulment of judgment14 before the Court of Appeals on
the grounds of extrinsic fraud and lack of jurisdiction. She argued that she was deprived her day in court
when Ricardo, despite his knowledge of her true residence, misrepresented to the court that she was a
resident of Tarlac City.15 According to Celerina, her true residence was in Neptune Extension, Congressional
Avenue, Quezon City.16 This residence had been her and Ricardo's conjugal dwelling since 1989 until Ricardo
left in May 2008.17 As a result of Ricardo's misrepresentation, she was deprived of any notice of and
opportunity to oppose the petition declaring her presumptively dead.18 c hanro bles law

Celerina claimed that she never resided in Tarlac. She also never left and worked as a domestic helper
abroad.20 Neither did she go to an employment agency in February 1995.21 She also claimed that it was not
true that she had been absent for 12 years. Ricardo was aware that she never left their conjugal dwelling in
Quezon City.22 It was he who left the conjugal dwelling in May 2008 to cohabit with another
woman.23 Celerina referred to a joint affidavit executed by their children to support her contention that
Ricardo made false allegations in his petition.24 cha nro bleslaw

Celerina also argued that the court did not acquire jurisdiction over Ricardo's petition because it had never
been published in a newspaper.25 She added that the Office of the Solicitor General and the Provincial
Prosecutor's Office were not furnished copies of Ricardo's petition.26 cha nrob leslaw

The Court of Appeals issued the resolution dated November 28, 2008, dismissing Celerina's petition for
annulment of judgment for being a wrong mode of remedy.27 According to the Court of Appeals, the proper
remedy was to file a sworn statement before the civil registry, declaring her reappearance in accordance
with Article 42 of the Family Code.28 chanrob leslaw

Celerina filed a motion for reconsideration of the Court of Appeals' resolution dated November 28,
2008.29 The Court of Appeals denied the motion for reconsideration in the resolution dated March 5,
2009.30chan robles law

Hence, this petition was filed.

The issue for resolution is whether the Court of Appeals erred in dismissing Celerina's petition for annulment
of judgment for being a wrong remedy for a fraudulently obtained judgment declaring presumptive death.

Celerina argued that filing an affidavit of reappearance under Article 42 of the Family Code is appropriate
only when the spouse is actually absent and the spouse seeking the declaration of presumptive death
actually has a well-founded belief of the spouse's death.31 She added that it would be inappropriate to file an
affidavit of reappearance if she did not disappear in the first place.32 She insisted that an action for
annulment of judgment is proper when the declaration of presumptive death is obtained fraudulently.33 chan roble slaw

Celerina further argued that filing an affidavit of reappearance under Article 42 of the Family Code would not
be a sufficient remedy because it would not nullify the legal effects of the judgment declaring her
presumptive death.34 chan roble slaw

In Ricardo's comment,35 he argued that a petition for annulment of judgment is not the proper remedy
because it cannot be availed when there are other remedies available. Celerina could always file an affidavit
of reappearance to terminate the subsequent marriage. Ricardo iterated the Court of Appeals' ruling that the
remedy afforded to Celerina under Article 42 of the Family Code is the appropriate remedy.

The petition is meritorious.

Annulment of judgment is the remedy when the Regional Trial Court's judgment, order, or resolution has
become final, and the "remedies of new trial, appeal, petition for relief (or other appropriate remedies) are
no longer available through no fault of the petitioner."36 chanrob leslaw

The grounds for annulment of judgment are extrinsic fraud and lack of jurisdiction.37 This court defined
extrinsic fraud in Stilianopulos v. City of Legaspi:38
chanro bleslaw

For fraud to become a basis for annulment of judgment, it has to be extrinsic or actual. It is intrinsic when
the fraudulent acts pertain to an issue involved in the original action or where the acts constituting the fraud
were or could have been litigated, It is extrinsic or collateral when a litigant commits acts outside of the trial
which prevents a parly from having a real contest, or from presenting all of his case, such that there is no
fair submission of the controversy.39 (Emphasis supplied)

Celerina alleged in her petition for annulment of judgment that there was fraud when Ricardo deliberately
made false allegations in the court with respect to her residence.40 Ricardo also falsely claimed that she was
absent for 12 years. There was also no publication of the notice of hearing of Ricardo's petition in a
newspaper of general circulation.41 Celerina claimed that because of these, she was deprived of notice and
opportunity to oppose Ricardo's petition to declare her presumptively dead.42 c han robles law

Celerina alleged that all the facts supporting Ricardo's petition for declaration of presumptive death were
false.43 Celerina further claimed that the court did not acquire jurisdiction because the Office of the Solicitor
General and the Provincial Prosecutor's Office were not given copies of Ricardo's petition.44 cha nrob leslaw

These are allegations of extrinsic fraud and lack of jurisdiction. Celerina alleged in her petition with the Court
of Appeals sufficient ground/s for annulment of judgment.

Celerina filed her petition for annulment of judgment45 on November 17, 2008. This was less than two years
from the July 27, 2007 decision declaring her presumptively dead and about a month from her discovery of
the decision in October 2008. The petition was, therefore, filed within the four-year period allowed by law in
case of extrinsic fraud, and before the action is barred by laches, which is the period allowed in case of lack
of jurisdiction.46
chan roble slaw

There was also no other sufficient remedy available to Celerina at the time of her discovery of the fraud
perpetrated on her.

The choice of remedy is important because remedies carry with them certain admissions, presumptions, and
conditions.

The Family Code provides that it is the proof of absence of a spouse for four consecutive years, coupled with
a well-founded belief by the present spouse that the absent spouse is already dead, that constitutes a
justification for a second marriage during the subsistence of another marriage.47 chanrob leslaw

The Family Code also provides that the second marriage is in danger of being terminated by the
presumptively dead spouse when he or she reappears. Thus: chanRoblesvi rt ual Lawlib rary

Article 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by
the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the
previous marriage or declaring it void ab initio.

A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of
the residence of the parties to the subsequent marriage at the instance of any interested person, with due
notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being
judicially determined in case such fact is disputed. (Emphasis supplied)

In other words, the Family Code provides the presumptively dead spouse with the remedy of terminating the
subsequent marriage by mere reappearance.

The filing of an affidavit of reappearance is an admission on the part of the first spouse that his or her
marriage to the present spouse was terminated when he or she was declared absent or presumptively dead.

Moreover, a close reading of the entire Article 42 reveals that the termination of the subsequent marriage by
reappearance is subject to several conditions: (1) the non-existence of a judgment annulling the previous
marriage or declaring it void ab initio; (2) recording in the civil registry of the residence of the parties to the
subsequent marriage of the sworn statement of fact and circumstances of reappearance; (3) due notice to
the spouses of the subsequent marriage of the fact of reappearance; and (4) the fact of reappearance must
either be undisputed or judicially determined.

The existence of these conditions means that reappearance does not always immediately cause the
subsequent marriage's termination. Reappearance of the absent or presumptively dead spouse will cause
the termination of the subsequent marriage only when all the conditions enumerated in the Family Code are
present.

Hence, the subsequent marriage may still subsist despite the absent or presumptively dead spouse's
reappearance (1) if the first marriage has already been annulled or has been declared a nullity; (2) if the
sworn statement of the reappearance is not recorded in the civil registry of the subsequent spouses'
residence; (3) if there is no notice to the subsequent spouses; or (4) if the fact of reappearance is disputed
in the proper courts of law, and no judgment is yet rendered confirming, such fact of reappearance.

When subsequent marriages are contracted after a judicial declaration of presumptive death, a presumption
arises that the first spouse is already dead and that the second marriage is legal. This presumption should
prevail over the continuance of the marital relations with the first spouse.48 The second marriage, as with all
marriages, is presumed valid.49 The burden of proof to show that the first marriage was not properly
dissolved rests on the person assailing the validity of the second marriage.50 chan roble slaw

This court recognized the conditional nature of reappearance as a cause for terminating the subsequent
marriage in Social Security System v. Vda. de Bailon.51 This court noted52 that mere reappearance will not
terminate the subsequent marriage even if the parties to the subsequent marriage were notified if there was
"no step . . . taken to terminate the subsequent marriage, either by [filing an] affidavit [of reappearance] or
by court action[.]"53 "Since the second marriage has been contracted because of a presumption that the
former spouse is dead, such presumption continues inspite of the spouse's physical reappearance, and
by fiction of law, he or she must still be regarded as legally an absentee until the subsequent marriage is
terminated as provided by law."54 chanrobles law

The choice of the proper remedy is also important for purposes of determining the status of the second
marriage and the liabilities of the spouse who, in bad faith, claimed that the other spouse was absent.

A second marriage is bigamous while the first subsists. However, a bigamous subsequent marriage may be
considered valid when the following are present: cha nRoblesvi rtua lLaw lib rary

1) The prior spouse had been absent for four consecutive years;
2) The spouse present has a well-founded belief that the absent spouse was
already dead;
3) There must be a summary proceeding for the declaration of presumptive
death of the absent spouse; and
4) There is a court declaration of presumptive death of the absent spouse.55
A subsequent marriage contracted in bad faith, even if it was contracted after a court declaration of
presumptive death, lacks the requirement of a well-founded belief56 that the spouse is already dead. The
first marriage will not be considered as. validly terminated. Marriages contracted prior to the valid
termination of a subsisting marriage are generally considered bigamous and void.57 Only a subsequent
marriage contracted in good faith is protected by law.

Therefore, the party who contracted the subsequent marriage in bad faith is also not immune from an action
to declare his subsequent marriage void for being bigamous. The prohibition against marriage during the
subsistence of another marriage still applies.58 cha nrob leslaw
If, as Celerina contends, Ricardo was in bad faith when he filed his petition to declare her presumptively
dead and when he contracted the subsequent marriage, such marriage would be considered void for being
bigamous under Article 35(4) of the Family Code. This is because the circumstances lack the element of
"well-founded belief under Article 41 of the Family Code, which is essential for the exception to the rule
against bigamous marriages to apply.59 chanro bles law

The provision on reappearance in the Family Code as a remedy to effect the termination of the subsequent
marriage does not preclude the spouse who was declared presumptively dead from availing other remedies
existing in law. This court had, in fact, recognized that a subsequent marriage may also be terminated by
filing "an action in court to prove the reappearance of the absentee and obtain a declaration of dissolution or
termination of the subsequent marriage."60 chanroble slaw

Celerina does not admit to have been absent. She also seeks not merely the termination of the subsequent
marriage but also the nullification of its effects. She contends that reappearance is not a sufficient remedy
because it will only terminate the subsequent marriage but not nullify the effects of the declaration of her
presumptive death and the subsequent marriage.

Celerina is correct. Since an undisturbed subsequent marriage under Article 42 of the Family Code is valid
until terminated, the "children of such marriage shall be considered legitimate, and the property relations of
the spouse[s] in such marriage will be the same as in valid marriages."61 If it is terminated by mere
reappearance, the children of the subsequent marriage conceived before the termination shall still be
considered legitimate.62 Moreover, a judgment declaring presumptive death is a defense against prosecution
for bigamy.63chan robles law

It is true that in most cases, an action to declare the nullity of the subsequent marriage may nullify the
effects of the subsequent marriage, specifically, in relation to the status of children and the prospect of
prosecuting a respondent for bigamy.

However, "a Petition for Declaration of Absolute Nullity of Void Marriages may be filed solely by the husband
or wife."64 This means that even if Celerina is a real party in interest who stands to be benefited or injured
by the outcome of an action to nullify the second marriage,65 this remedy is not available to her.

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 subsequent marriage, mere filing of an affidavit of
reappearance would not suffice. Celerina's choice to file an action for annulment of judgment will, therefore,
lie.

WHEREFORE, the case is REMANDED to the Court of Appeals for determination of the existence of
extrinsic fraud, grounds for nullity/annulment of the first marriage, and the merits of the petition.

SO ORDERED. cralawlawlibra ry

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 184621 December 10, 2013

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
MARIA FE ESPINOSA CANTOR, Respondent.

DECISION
BRION, J.:

The petition for review on certiorari1 before us assails the decision2 dated August 27, 2008 of the
Court of Appeals (CA) in CA-G.R. SP No. 01558-MIN which affirmed be order3 dated December 15,
2006 of the Regional Trial Court (RTC), Branch 25, Koronadal City, South Cotabato, in SP Proc.
Case No. 313-25, declaring Jerry F. Cantor, respondent Maria Fe Espinosa Cantor’s husband,
presumptively dead under Article 41 of the Family Code.

The Factual Antecedents

The respondent and Jerry were married on September 20, 1997. They lived together as husband
and wife in their conjugal dwelling in Agan Homes, Koronadal City, South Cotabato. Sometime in
January 1998, the couple had a violent quarrel brought about by: (1) the respondent’s inability to
reach "sexual climax" whenever she and Jerry would have intimate moments; and (2) Jerry’s
expression of animosity toward the respondent’s father.

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 nor heard anything from Jerry or about
his whereabouts.

On May 21, 2002, or more than four (4) years from the time of Jerry’s disappearance, the
respondent filed before the RTC a petition4for her husband’s declaration of presumptive death,
docketed as SP Proc. Case No. 313-25. She 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
sisters-in-law, as well as her neighbors and friends, but to no avail. In the hopes of finding Jerry, she
also allegedly made it a point to check the patients’ directory whenever she went to a hospital. All
these earnest efforts, the respondent claimed, proved futile, prompting her to file the petition in court.

The Ruling of the RTC

After due proceedings, the RTC issued an order granting the respondent’s petition and declaring
Jerry presumptively dead. It concluded that the 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 about the latter or his whereabouts. The dispositive portion of the order dated December
15, 2006 reads:

WHEREFORE, the Court hereby declares, as it hereby declared that respondent Jerry F. Cantor is
presumptively dead pursuant to Article 41 of the Family Code of the Philippines without prejudice to
the effect of the reappearance of the absent spouse Jerry F. Cantor.5

The Ruling of the CA

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 its August 27, 2008 decision, the
CA dismissed the petitioner’s petition, finding no grave abuse of discretion on the RTC’s part, and,
accordingly, fully affirmed the latter’s order, thus:

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
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, judgments or final orders of trial courts in
petitions for declaration of presumptive death of an absent spouse under Rule 41 of the Family
Code. It maintains that although judgments of trial courts in summary judicial proceedings, including
presumptive death cases, are deemed immediately final 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.

The petitioner also posits that the respondent did not have a well-founded belief to justify the
declaration of her husband’s presumptive death. It claims that the respondent failed to conduct the
requisite diligent search for her missing husband. Likewise, the petitioner invites this Court’s
attention to the attendant circumstances surrounding the case, particularly, the degree of search
conducted and the respondent’s resultant failure to meet the strict standard under Article 41 of the
Family Code.

The Issues

The petition poses to us the following issues:

(1) Whether certiorarilies to challenge the decisions, judgments or final orders of trial courts
in petitions for declaration of presumptive death of an absent spouse under Article 41 of the
Family Code; and

(2) Whether the respondent had a well-founded belief that Jerry is already dead.

The Court’s Ruling

We grant the petition.

a. On the Issue of the Propriety of Certiorari as a Remedy

Court’s Judgment in the Judicial

Proceedings for Declaration of
Presumptive Death Is Final and
Executory, Hence, Unappealable

The Family Code was explicit that the court’s judgment in summary proceedings, such as the
declaration of presumptive death of an absent spouse under Article 41 of the Family Code, shall be
immediately final and executory.

Article 41,in relation to Article 247, of the Family Code provides:

Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null
and void, unless before the celebration of the subsequent marriage, the prior spouse had been
absent for four consecutive years and the spouse present has a well-founded belief that the absent
spouse was already dead. In case of disappearance where there is danger of death under the
circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two
years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse
present must institute a summary proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect of reappearance of the absent
spouse.

Art. 247. The judgment of the court shall be immediately final and executory. [underscores ours]

With the judgment being final, it necessarily follows that it is no longer subject to an appeal, the
dispositions and conclusions therein having become immutable and unalterable not only as against
the parties but even as against the 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
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 mandate of Article 247 of the Family Code,
to wit:

In Summary Judicial Proceedings under the Family Code, there is no reglementary period within
which to perfect an appeal, precisely because judgments rendered thereunder, by express provision
of [Article] 247, Family Code, supra, are "immediately final and executory." It was erroneous,
therefore, on the part of the RTCto give due course to the Republic’s appeal and order the
transmittal of the entire records of the case to the Court of Appeals.

An appellate court acquires no jurisdiction to review a judgment which, by 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 due process, for it is merely a statutory privilege." Since, by
express mandate of Article 247 of the Family Code, all judgments rendered in summary judicial
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 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 November 7, 2001. [emphases ours; italics supplied]

Certiorari Lies to Challenge the

Decisions, Judgments or Final
Orders of Trial Courts in a Summary
Proceeding for the Declaration of Presumptive
Death Under the Family Code

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 judgment, an aggrieved party may,
nevertheless, file a petition for certiorari under Rule 65 of the Rules of Court to question any abuse
of discretion amounting to lack or excess of jurisdiction that transpired.

As held in Delos Santos v. Rodriguez, et al.,10 the fact that a decision has become final does not
automatically negate the original action of the CA to issue 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 without or in excess of jurisdiction or with grave abuse of discretion, and where the
ordinary remedy of appeal is not available. Such a procedure finds support in the case of Republic v.
Tango,11 wherein we held that:

This case presents an opportunity for us to settle the rule on appeal of judgments rendered in
summary proceedings under the Family Code and accordingly, refine our previous decisions
thereon.

Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE
FAMILY LAW, establishes the rules that govern summary court proceedings in the Family Code:
"ART. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all
cases provided for in this Code requiring summary court proceedings. Such cases shall be decided
in an expeditious manner without regard to technical rules."

In turn, Article 253 of the Family Code specifies the cases covered by the rules in chapters two and
three of the same title. It states:

"ART. 253. The foregoing rules in Chapters 2and 3 hereof shall likewise govern summary
proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are
applicable."(Emphasis supplied.)

In plain text, Article 247 in Chapter 2 of the same title reads:

"ART.247. The judgment of the court shall be immediately final and executory."

By express provision of law, the judgment of the court in a summary proceeding shall be
immediately final and executory. As a matter of course, it follows that no appeal can be had of the
trial court's judgment ina summary proceeding for the declaration of presumptive death of an absent
spouse under Article 41 of the Family Code. It goes without saying, however, that an aggrieved party
may file a petition for certiorari to question abuse of discretion amounting to lack of jurisdiction. Such
petition should be filed in the Court of Appeals in accordance with the Doctrine of Hierarchy of
Courts. To be sure, even if the Court's original jurisdiction to issue a writ of certiorari is concurrent
with the RTCs and the Court of Appeals in certain cases, such concurrence does not sanction an
unrestricted freedom of choice of court forum. [emphasis ours]

Viewed in this light, we find that the petitioner’s resort to certiorari under Rule 65 of the Rules of
Court to question the RTC’s order declaring Jerry presumptively dead was proper.

b. On the Issue of the Existence of Well-Founded Belief

The Essential Requisites for the

Declaration of Presumptive Death
Under Article 41 of the Family Code

Before a judicial declaration of presumptive death can be obtained, it must be shown that the prior
spouse had been absent for four consecutive years and the present spouse had a well-founded
belief that the prior spouse was already dead. Under Article 41 of the Family Code, there are four (4)
essential requisites for the declaration of presumptive death:

1. That the absent spouse has been missing for four consecutive years, or two consecutive
years if the disappearance occurred where there is danger of death under the circumstances
laid down in Article 391, Civil Code;

2. That the present spouse wishes to remarry;

3. That the present spouse has a well-founded belief that the absentee is dead; and

4. That the present spouse files a summary proceeding for the declaration of presumptive
death of the absentee.12
The Present Spouse Has the Burden
of Proof to Show that All the
Requisites Under Article 41 of the
Family Code Are Present

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 who, for purposes of declaration of
presumptive death, substantially asserts the 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 not evidence.13

Declaration of Presumptive Death

Under Article 41 of the Family Code
Imposes a Stricter Standard

Notably, Article 41 of the Family Code, compared to the old provision of the Civil Code which it
superseded, imposes a stricter standard. It requires a "well-founded belief " that the absentee is
already dead before a petition for declaration of presumptive death can be granted. We have had
occasion to make 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 Code, to wit:

Under Article 41, the time required for the presumption to arise has been shortened to four (4) years;
however, there is need for a judicial declaration of presumptive death to enable the spouse present
to remarry. Also, Article 41 of the Family Code imposes a stricter standard than the Civil Code:
Article 83 of the Civil Code merely requires either that there be no news that such absentee is still
alive; or the absentee is generally considered to be dead and believed to be so by 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" that the absentee is already dead before a
petition for declaration of presumptive death can be granted.

Thus, mere absence of the spouse (even for such period required by the law), lack of any news that
such absentee is still alive, failure to communicate or general presumption of absence under the
Civil Code would not suffice. This 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
requirement of "well-founded belief" which can only be discharged upon a showing of proper and
honest-to-goodness inquiries and efforts to ascertain not only the absent spouse’s whereabouts but,
more importantly, that the absent spouse is still alive or is already dead.15

The Requirement of Well-Founded Belief

The law did not define what is meant by "well-founded belief." It depends upon the circumstances of
each particular case. Its determination, so to speak, remains 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 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 already
dead. It requires exertion of active effort (not a mere passive one).

To illustrate this degree of "diligent and reasonable search" required by the law, an analysis of the
following relevant cases is warranted:

i. Republic of the Philippines v. Court of Appeals (Tenth Div.)16

In Republic of the Philippines v. Court of Appeals (Tenth Div.),17 the Court ruled 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 his absent wife allegedly consisted of the following:

(1) He went to his in-laws’ house to look for her;

(2) He sought the barangay captain’s aid to locate her;

(3) He went to her friends’ houses to find her and inquired about her whereabouts among his
friends;

(4) He went to Manila and worked as a part-time taxi driver to look for her in malls during his
free time;

(5) He went back to Catbalogan and again looked for her; and

(6) He reported her disappearance to the local police station and to the NBI.

Despite these alleged "earnest efforts," the Court still ruled against the present 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 its notice to dismiss his petition in the RTC.

The Court also provided the following criteria for determining the existence of a "well-founded belief"
under Article 41 of the Family Code:

The belief of the present spouse must be the result of proper and honest to goodness inquiries and
efforts to ascertain the whereabouts of the absent spouse and whether the absent spouse is still
alive or is already dead. Whether or not the spouse present acted on a well-founded belief of death
of the absent spouse depends upon the inquiries to be drawn from a great many circumstances
occurring before and after the disappearance of the absent spouse and the nature and extent of the
inquiries made by [the] present spouse.18

ii. Republic v. Granada19

Similarly in Granada, the Court ruled that the absent spouse failed to prove her "well-founded belief"
that her absent spouse was already dead prior to her filing 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. The present spouse did not report to the police nor seek the aid of the mass
media. Applying the standards in Republic of the Philippines v. Court of Appeals (Tenth Div.),20 the
Court ruled against the present spouse, as follows:

Applying the foregoing standards to the present case, petitioner points out that respondent Yolanda
did not initiate a diligent search to locate her absent husband. While her brother Diosdado Cadacio
testified to having inquiredabout the whereabouts of Cyrus from the latter’s relatives, these relatives
were not presented to corroborate Diosdado’s testimony. In short, respondent was allegedly not
diligent in her search for her husband. Petitioner argues that if she were, she would have sought
information from the Taiwanese Consular Office or assistance from other government agencies in
Taiwan or the Philippines. She could have also utilized mass media for this end, but she did not.
Worse, she failed to explain these omissions.

iii.Republic v. Nolasco21
In Nolasco, the present spouse filed a petition for declaration of presumptive death of his wife, who
had been missing for more than four years. He testified that his efforts to find her consisted of:

(1) Searching for her whenever his ship docked in England;

(2) Sending her letters which were all returned to him; and

(3) Inquiring from their friends regarding her whereabouts, which all proved 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 of evidence only proved that his wife had
chosen not to communicate with their common acquaintances, and not that she was dead.

iv.The present case

In the case at bar, the respondent’s "well-founded belief" was anchored on her alleged "earnest
efforts" to locate Jerry, which consisted of the following:

(1) She made inquiries about Jerry’s whereabouts from her in-laws, neighbors and friends;
and

(2) Whenever she went to a hospital, she saw to it that she looked through the patients’
directory, hoping to find Jerry.

These efforts, however, fell short of the "stringent standard" and degree of diligence required by
jurisprudence for the following reasons:

First, the respondent did not actively look for her missing husband. It can be inferred from the
1âwphi 1

records that her hospital visits and her consequent checking of the patients’ directory therein were
unintentional. She did not purposely undertake a diligent search for her husband as her hospital
visits were not planned nor primarily directed to look for him. This Court thus considers these
attempts insufficient to engender a belief that her husband is dead.

Second, she did not report Jerry’s absence to the police nor did she seek the aid of the authorities to
look for him. While a finding of well-founded belief varies 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 spouse had been missing, to seek the aid of the authorities or, at the very least,
report his/her absence to the police.

Third, she did not present as witnesses Jerry’s relatives or their neighbors and friends, who can
corroborate her efforts to locate Jerry. Worse, these persons, from whom she allegedly made
inquiries, were not even named. As held in Nolasco, the present spouse’s bare assertion that he
inquired from his friends about his absent spouse’s whereabouts is insufficient as the names of the
friends from whom he made inquiries were not identified in the testimony nor presented as
witnesses.

Lastly, there was no other corroborative evidence to support the respondent’s claim that she
conducted a diligent search. Neither was there supporting evidence proving that she had a well-
founded belief other than her bare claims that she inquired from her friends and in-laws about her
husband’s whereabouts. In sum, the Court is of the view that the respondent merely engaged in a
"passive search" where she relied on uncorroborated inquiries from her in-laws, neighbors and
friends. She failed to conduct a diligent search because her alleged 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 Div.),22 "[w]hether or not the spouse present acted on a well-founded belief
of death of the absent spouse depends upon the inquiries to be drawn from a great many
circumstances occurring before and after the disappearance of the absent spouse and the
natureand extent of the inquiries made by [the] present spouse."

Strict Standard Approach Is

Consistent with the State’s Policy
to Protect and Strengthen Marriage

In the above-cited cases, the Court, fully aware of the possible collusion of spouses in nullifying their
marriage, has consistently applied the "strictstandard" approach. This is to ensure that a petition for
declaration of presumptive death under Article 41 of the Family Code is not used as a tool to
conveniently 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 of the Philippines v. Court
of Appeals (Tenth Div.),23 we emphasized that:

In view of the summary nature of proceedings under Article 41 of the Family Code for the declaration
of presumptive death of one’s spouse, the degree of 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. 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 spouses are alive and well. It is even
possible that those who cannot have their 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 proceedings.

The application of this stricter standard becomes even more imperative if we consider the State’s
policy to protect and strengthen the institution of 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
institution,26 marriage should not be permitted to be dissolved at the whim of the 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 sentiment when we stressed:

[The]protection of the basic social institutions of marriage and the family in the preservation of which
the State has the strongest interest; the public policy here involved is of the most fundamental kind.
In Article II, Section 12 of the Constitution there is set forth the following basic state policy:

The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic
autonomous social institution.

Strict Standard Prescribed Under

Article 41 of the Family Code
Is for the Present Spouse’s Benefit

The requisite judicial declaration of presumptive death of the absent spouse (and consequently, the
application of a stringent standard for its issuance) is also for the present spouse's benefit. It is
intended to protect him/her from a criminal prosecution of bigamy under Article 349 of the Revised
Penal Code which might come into play if he/she would prematurely remarry sans the court's
declaration.

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 effectively established. The decision of the
competent court constitutes sufficient proof of his/her good faith and his/her criminal intent in case of
remarriage is effectively negated.28 Thus, for purposes of remarriage, it is necessary to strictly
comply with the stringent standard and have the absent spouse judicially declared presumptively
dead.

Final Word

As a final word, it has not escaped this Court's attention that the strict standard required in petitions
for declaration of presumptive death has not been fully observed by the lower courts. We need only
to cite the instances when this Court, on review, has consistently ruled on the sanctity of marriage
and 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 the strict standard this Court requires
in cases under Article 41 of the Family Code.

WHEREFORE, in view of the foregoing, the assailed decision dated August 27, 2008 of the Court of
Appeals, which affirmed the order dated December 15, 2006 of the Regional Trial Court, Branch 25,
Koronadal City, South Cotabato, declaring Jerry F. Cantor presumptively dead is hereby
REVERSED and SET ASIDE.

SO ORDERED.

THIRD DIVISION

G.R. No. 163604 May 6, 2005

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
THE HON. COURT OF APPEALS (Twentieth Division), HON. PRESIDING JUDGE FORTUNITO
L. MADRONA, RTC-BR. 35 and APOLINARIA MALINAO JOMOC, respondents.

DECISION

CARPIO-MORALES, J.:

In "In the Matter of Declaration of Presumptive Death of Absentee Spouse Clemente P. Jomoc,
Apolinaria Malinao Jomoc, petitioner," the Ormoc City, Regional Trial Court, Branch 35, by Order of
September 29, 1999,1 granted the petition on the basis of the Commissioner’s Report2 and
accordingly declared the absentee spouse, who had left his petitioner-wife nine years earlier,
presumptively dead.

In granting the petition, the trial judge, Judge Fortunito L. Madrona, cited Article 41, par. 2 of the
Family Code. Said article provides that for the purpose of contracting a valid subsequent
marriage during the subsistence of a previous marriage where the prior spouse had been absent for
four consecutive years, the spouse present must institute summary proceedings for the declaration
of presumptive death of the absentee spouse, without prejudice to the effect of the reappearance of
the absent spouse.

The Republic, through the Office of the Solicitor General, sought to appeal the trial court’s order by
filing a Notice of Appeal.3
By Order of November 22, 1999s,4 the trial court, noting that no record of appeal was filed and
served "as required by and pursuant to Sec. 2(a), Rule 41 of the 1997 Rules of Civil Procedure, the
present case being a special proceeding," disapproved the Notice of Appeal.

The Republic’s Motion for Reconsideration of the trial court’s order of disapproval having been
denied by Order of January 13, 2000,5 it filed a Petition for Certiorari6 before the Court of Appeals, it
contending that the declaration of presumptive death of a person under Article 41 of the Family Code
is not a special proceeding or a case of multiple or separate appeals requiring a record on appeal.

By Decision of May 5, 2004,7 the Court of Appeals denied the Republic’s petition on procedural and
substantive grounds in this wise:

At the outset, it must be stressed that the petition is not sufficient in form. It failed to attach to
its petition a certified true copy of the assailed Order dated January 13, 2000 [denying its
Motion for Reconsideration of the November 22, 1999 Order disapproving its Notice of
Appeal]. Moreover, the petition questioned the [trial court’s] Order dated August 15, 1999,
which declared Clemente Jomoc presumptively dead, likewise for having been issued with
grave abuse of discretion amounting to lack of jurisdiction, yet, not even a copy could be
found in the records. On this score alone, the petition should have been dismissed outright in
accordance with Sec. 3, Rule 46 of the Rules of Court.

However, despite the procedural lapses, the Court resolves to delve deeper into the
substantive issue of the validity/nullity of the assailed order.

The principal issue in this case is whether a petition for declaration of the
presumptive death of a person is in the nature of a special proceeding. If it is, the
period to appeal is 30 days and the party appealing must, in addition to a notice of appeal,
file with the trial court a record on appeal to perfect its appeal. Otherwise, if the petition is an
ordinary action, the period to appeal is 15 days from notice or decision or final order
appealed from and the appeal is perfected by filing a notice of appeal (Section 3, Rule 41,
Rules of Court).

As defined in Section 3(a), Rule 1 of the Rules of Court, "a civil action is one by which a
party sues another for the enforcement or protection of a right, or the prevention of redress of
a wrong" while a special proceeding under Section 3(c) of the same rule is defined as "a
remedy by which a party seeks to establish a status, a right or a particular fact (Heirs of
Yaptinchay, et al. v. Del Rosario, et al., G.R. No. 124320, March 2, 1999).

Considering the aforementioned distinction, this Court finds that the instant petition is in
the nature of a special proceeding and not an ordinary action. The petition merely seeks
for a declaration by the trial court of the presumptive death of absentee spouse Clemente
Jomoc. It does not seek the enforcement or protection of a right or the prevention or redress
of a wrong. Neither does it involve a demand of right or a cause of action that can be
enforced against any person.

On the basis of the foregoing discussion, the subject Order dated January 13, 2000 denying
OSG’s Motion for Reconsideration of the Order dated November 22, 1999 disapproving its
Notice of Appeal was correctly issued. The instant petition, being in the nature of a
special proceeding, OSG should have filed, in addition to its Notice of Appeal, a
record on appeal in accordance with Section 19 of the Interim Rules and Guidelines to
Implement BP Blg. 129 and Section 2(a), Rule 41 of the Rules of Court . . . (Emphasis and
underscoring supplied)
The Republic (petitioner) insists that the declaration of presumptive death under Article 41 of the
Family Code is not a special proceeding involving multiple or separate appeals where a record on
appeal shall be filed and served in like manner.

Petitioner cites Rule 109 of the Revised Rules of Court which enumerates the cases wherein
multiple appeals are allowed and a record on appeal is required for an appeal to be perfected. The
petition for the declaration of presumptive death of an absent spouse not being included in the
enumeration, petitioner contends that a mere notice of appeal suffices.

By Resolution of December 15, 2004,8 this Court, noting that copy of the September 27, 2004
Resolution9 requiring respondent to file her comment on the petition was returned unserved with
postmaster’s notation "Party refused," Resolved to consider that copy deemed served upon her.

The pertinent provisions on the General Provisions on Special Proceedings, Part II of the
Revised Rules of Court entitled SPECIAL PROCEEDINGS, read:

RULE 72
SUBJECT MATTER AND APPLICABILITY
OF GENERAL RULES

Section 1. Subject matter of special proceedings. – Rules of special proceedings are

provided for in the following:

(a) Settlement of estate of deceased persons;

(b) Escheat;

(c) Guardianship and custody of children;

(d) Trustees;

(e) Adoption;

(f) Rescission and revocation of adoption;

(g) Hospitalization of insane persons;

(h) Habeas corpus;

(i) Change of name;

(j) Voluntary dissolution of corporations;

(k) Judicial approval of voluntary recognition of minor natural children;

(l) Constitution of family home;

(m) Declaration of absence and death;

(n) Cancellation or correction of entries in the civil registry.

 Sec. 2. Applicability of rules of civil actions. – In the absence of special provisions, the rules
provided for in ordinary actions shall be, as far as practicable, applicable in special
proceedings. (Underscoring supplied)

The pertinent provision of the Civil Code on presumption of death provides:

Art. 390. After an absence of seven years, it being unknown whether or not the absentee still
lives, he shall be presumed dead for all purposes, except for those of succession.

x x x (Emphasis and underscoring supplied)

Upon the other hand, Article 41 of the Family Code, upon which the trial court anchored its grant of
the petition for the declaration of presumptive death of the absent spouse, provides:

Art. 41. A marriage contracted by any person during the subsistence of a previous marriage
shall be null and void, unless before the celebration of the subsequent marriage, the prior
spouses had been absent for four consecutive years and the spouse present had a well-
founded belief that the absent spouses was already dead. In case of disappearance where
there is danger of death under the circumstances set forth in the provisions of Article 391 of
the Civil Code, an absence of only two years shall be sufficient.

For the purpose pf contracting the subsequent marriage under the preceding paragraph, the
spouses present must institute a summary proceeding as provided in this Code for the
declaration of presumptive death of the absentee, without prejudice to the effect of a
reappearance of the absent spouse. (Emphasis and underscoring supplied)

Rule 41, Section 2 of the Revised Rules of Court, on Modes of Appeal, invoked by the trial court in
disapproving petitioner’s Notice of Appeal, provides:

Sec. 2. Modes of appeal. -

(a) Ordinary appeal. - The appeal to the Court of Appeals in cases decided by the Regional
Trial Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal
with the court which rendered the judgment or final order appealed from and serving a copy
thereof upon the adverse party. No record on appeal shall be required except in special
proceedings and other cases of multiple or separate appeals where the law or these
Rules so require. In such cases, the record on appeal shall be filed and served in like
manner. (Emphasis and underscoring supplied)

xxx

By the trial court’s citation of Article 41 of the Family Code, it is gathered that the petition of
Apolinaria Jomoc to have her absent spouse declared presumptively dead had for its purpose her
desire to contract a valid subsequent marriage. Ergo, the petition for that purpose is a "summary
proceeding," following above-quoted Art. 41, paragraph 2 of the Family Code.

Since Title XI of the Family Code, entitled SUMMARY JUDICIAL PROCEEDING IN THE FAMILY
LAW, contains the following provision, inter alia:

xxx
 Art. 238. Unless modified by the Supreme Court, the procedural rules in this Title shall
apply in all casesprovided for in this Codes requiring summary court proceedings. Such
cases shall be decided in an expeditious manner without regard to technical
rules. (Emphasis and underscoring supplied)

x x x,

there is no doubt that the petition of Apolinaria Jomoc required, and is, therefore, a summary
proceeding under the Family Code, not a special proceeding under the Revised Rules of Court
appeal for which calls for the filing of a Record on Appeal. It being a summary ordinary proceeding,
the filing of a Notice of Appeal from the trial court’s order sufficed.

That the Family Code provision on repeal, Art. 254, provides as follows:

Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of Republic Act No. 386,
otherwise known as the Civil Code of the Philippines, as amended, and Articles 17, 18, 19,
27, 28, 29, 30, 31, 39, 40, 41 and 42 of Presidential Decree No. 603, otherwise known as the
Child and Youth Welfare Code, as amended, and all laws, decrees, executive orders,
proclamations rules and regulations, or parts thereof, inconsistent therewith are
hereby repealed, (Emphasis and underscoring supplied),

seals the case in petitioner’s favor.

Finally, on the alleged procedural flaw in petitioner’s petition before the appellate court. Petitioner’s
failure to attach to his petition before the appellate court a copy of the trial court’s order denying its
motion for reconsideration of the disapproval of its Notice of Appeal is not necessarily fatal, for the
rules of procedure are not to be applied in a technical sense. Given the issue raised before it by
petitioner, what the appellate court should have done was to direct petitioner to comply with the rule.

As for petitioner’s failure to submit copy of the trial court’s order granting the petition for declaration
of presumptive death, contrary to the appellate court’s observation that petitioner was also assailing
it, petitioner’s 8-page petition10filed in said court does not so reflect, it merely having assailed
the order disapproving the Notice of Appeal.

WHEREFORE, the assailed May 5, 2004 Decision of the Court of Appeals is hereby REVERSED
and SET ASIDE. Let the case be REMANDED to it for appropriate action in light of the foregoing
discussion.

SO ORDERED.

Panganiban, (Chairman), Sandoval-Gutierrez, Corona, and Garcia, JJ., concur.

SECOND DIVISION

G.R. No. 187512 June 13, 2012

REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
YOLANDA CADACIO GRANADA, Respondent.

DECISION

SERENO, J.:

This is a Rule 45 Petition seeking the reversal of the Resolutions dated 23 January 20091 and 3 April
20092 issued by the Court of Appeals (CA), which affirmed the grant by the Regional Trial Court
(RTC) of the Petition for Declaration of Presumptive Death of the absent spouse of respondent.

In May 1991, respondent Yolanda Cadacio Granada (Yolanda) met Cyrus Granada (Cyrus) at
Sumida Electric Philippines, an electronics company in Paranaque where both were then working.
The two eventually got married at the Manila City Hall on 3 March 1993. Their marriage resulted in
the birth of their son, Cyborg Dean Cadacio Granada.

Sometime in May 1994, when Sumida Electric Philippines closed down, Cyrus went to Taiwan to
seek employment. Yolanda claimed that from that time, she had not received any communication
from her husband, notwithstanding efforts to locate him. Her brother testified that he had asked the
relatives of Cyrus regarding the latter’s whereabouts, to no avail.

After nine (9) years of waiting, Yolanda filed a Petition to have Cyrus declared presumptively dead.
The Petition was raffled to Presiding Judge Avelino Demetria of RTC Branch 85, Lipa City, and was
docketed as Sp. Proc. No. 2002-0530.

On 7 February 2005, the RTC rendered a Decision declaring Cyrus as presumptively dead.

On 10 March 2005, petitioner Republic of the Philippines, represented by the Office of the Solicitor
General (OSG), filed a Motion for Reconsideration of this Decision. Petitioner argued that Yolanda
had failed to exert earnest efforts to locate Cyrus and thus failed to prove her well-founded belief that
he was already dead. However, in an Order dated 29 June 2007, the RTC denied the motion.

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

In its 23 January 2009 Resolution, the appellate court granted Yolanda’s Motion to Dismiss on the
ground of lack of jurisdiction. Citing Republic v. Bermudez-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.

Petitioner moved for reconsideration, but its motion was likewise denied by the CA in a Resolution
dated 3 April 2009.4

Hence, the present Rule 45 Petition.

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

2. Whether the CA seriously erred in affirming the RTC’s grant of the Petition for Declaration
of Presumptive Death under Article 41 of the Family Code based on the evidence that
respondent presented

Our Ruling

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

In the assailed Resolution dated 23 January 2009, the CA dismissed the Petition assailing the RTC’s
grant of the Petition for Declaration of Presumptive Death of the absent spouse under Article 41 of
the Family Code. Citing Republic v. Bermudez-Lorino,5 the appellate court noted that a petition for
declaration of presumptive death for the purpose of remarriage is a summary judicial proceeding
under the Family Code. Hence, the RTC Decision therein is immediately final and executory upon
notice to the parties, by express provision of Article 247 of the same Code. The decision is therefore
not subject to ordinary appeal, and the attempt to question it through a Notice of Appeal is
unavailing.

We affirm the CA ruling.

Article 41 of the Family Code provides:

Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be
null and void, unless before the celebration of the subsequent marriage, the prior spouse had been
absent for four consecutive years and the spouse present has a well-founded belief that the absent
spouse was already dead. In case of disappearance where there is danger of death under the
circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two
years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse
present must institute a summary proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect of reappearance of the absent
spouse. (Underscoring supplied.)

Clearly, a petition for declaration of presumptive death of an absent spouse for the purpose of
contracting a subsequent marriage under Article 41 of the Family Code is a summary proceeding "as
provided for" under the Family Code.

Further, Title XI of the Family Code is entitled "Summary Judicial Proceedings in the Family Law."
Subsumed thereunder are Articles 238 and 247, which provide:

Art. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all
cases provided for in this Code requiring summary court proceedings. Such cases shall be decided
in an expeditious manner without regard to technical rules.

xxx xxx xxx

Art. 247. The judgment of the court shall be immediately final and executory.

Further, Article 253 of the Family Code reads:

ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary
proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are applicable.

Taken together, Articles 41, 238, 247 and 253 of the Family Code provide that since a petition for
declaration of presumptive death is a summary proceeding, the judgment of the court therein shall
be immediately final and executory.

In Republic v. Bermudez-Lorino,6 the Republic likewise appealed the CA’s affirmation of the RTC’s
grant of respondent’s Petition for Declaration of Presumptive Death of her absent spouse. The Court
therein held that it was an error for the Republic to file a Notice of Appeal when the latter elevated
the matter to the CA, to wit:

In Summary Judicial Proceedings under the Family Code, there is no reglementary period within
which to perfect an appeal, precisely because judgments rendered thereunder, by express provision
of Section 247, Family Code, supra, are "immediately final and executory."

xxx xxx xxx

But, if only to set the records straight and for the future guidance of the bench and the bar, let it be
stated that the RTC’s decision dated November 7, 2001, was immediately final and executory upon
notice to the parties. It was erroneous for the OSG to file a notice of appeal, and for the RTC to give
due course thereto. The Court of Appeals acquired no jurisdiction over the case, and should have
dismissed the appeal outright on that ground.

Justice (later Chief Justice) Artemio Panganiban, who concurred in the result reached by the Court
in Republic v. Bermudez-Lorino, additionally opined that what the OSG should have filed was a
petition for certiorari under Rule 65, not a petition for review under Rule 45.

In the present case, the Republic argues that Bermudez-Lorino has been superseded by the
subsequent Decision of the Court in Republic v. Jomoc,7 issued a few months later.

In Jomoc, the RTC granted respondent’s Petition for Declaration of Presumptive Death of her absent
husband for the purpose of remarriage. Petitioner Republic appealed the RTC Decision by filing a
Notice of Appeal. The trial court disapproved the Notice of Appeal on the ground that, under the
Rules of Court,8 a record on appeal is required to be filed when appealing special proceedings cases.
The CA affirmed the RTC ruling. In reversing the CA, this Court clarified that while an action for
declaration of death or absence under Rule 72, Section 1(m), expressly falls under the category of
special proceedings, a petition for declaration of presumptive death under Article 41 of the Family
Code is a summary proceeding, as provided for by Article 238 of the same Code. Since its purpose
was to enable her to contract a subsequent valid marriage, petitioner’s action was a summary
proceeding based on Article 41 of the Family Code, rather than a special proceeding under Rule 72
of the Rules of Court. Considering that this action was not a special proceeding, petitioner was not
required to file a record on appeal when it appealed the RTC Decision to the CA.

We do not agree with the Republic’s argument that Republic v. Jomoc superseded our ruling in
Republic v. Bermudez-Lorino. As observed by the CA, the Supreme Court in Jomoc did not expound
on the characteristics of a summary proceeding under the Family Code. In contrast, the Court in
Bermudez-Lorino expressly stated that its ruling on the impropriety of an ordinary appeal as a
vehicle for questioning the trial court’s Decision in a summary proceeding for declaration of
presumptive death under Article 41 of the Family Code was intended "to set the records straight and
for the future guidance of the bench and the bar."

At any rate, four years after Jomoc, this Court settled the rule regarding appeal of judgments
rendered in summary proceedings under the Family Code when it ruled in Republic v. Tango:9

This case presents an opportunity for us to settle the rule on appeal of judgments rendered in
summary proceedings under the Family Code and accordingly, refine our previous decisions
thereon.

Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE
FAMILY LAW, establishes the rules that govern summary court proceedings in the Family Code:

ART. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all
cases provided for in this Code requiring summary court proceedings. Such cases shall be decided
in an expeditious manner without regard to technical rules.

In turn, Article 253 of the Family Code specifies the cases covered by the rules in chapters two and
three of the same title. It states:

ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary
proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are applicable.
(Emphasis supplied.)

In plain text, Article 247 in Chapter 2 of the same title reads:

ART 247. The judgment of the court shall be immediately final and executory.

By express provision of law, the judgment of the court in a summary proceeding shall be
immediately final and executory. As a matter of course, it follows that no appeal can be had of the
trial court's judgment in a summary proceeding for the declaration of presumptive death of an absent
spouse under Article 41 of the Family Code. It goes without saying, however, that an aggrieved party
may file a petition for certiorari to question abuse of discretion amounting to lack of jurisdiction. Such
petition should be filed in the Court of Appeals in accordance with the Doctrine of Hierarchy of
Courts. To be sure, even if the Court's original jurisdiction to issue a writ of certiorari is concurrent
with the RTCs and the Court of Appeals in certain cases, such concurrence does not sanction an
unrestricted freedom of choice of court forum. From the decision of the Court of Appeals, the losing
party may then file a petition for review on certiorari under Rule 45 of the Rules of Court with the
Supreme Court. This is because the errors which the court may commit in the exercise of jurisdiction
are merely errors of judgment which are the proper subject of an appeal.

In sum, under Article 41 of the Family Code, the losing party in a summary proceeding for the
declaration of presumptive death may file a petition for certiorari with the CA on the ground that, in
rendering judgment thereon, the trial court committed grave abuse of discretion amounting to lack of
jurisdiction. From the decision of the CA, the aggrieved party may elevate the matter to this Court via
a petition for review on certiorari under Rule 45 of the Rules of Court.
Evidently then, the CA did not commit any error in dismissing the Republic’s Notice of Appeal on the
ground that the RTC judgment on the Petition for Declaration of Presumptive Death of respondent’s
spouse was immediately final and executory and, hence, not subject to ordinary appeal.

2. On whether the CA seriously erred in affirming the RTC’s grant of the Petition for Declaration of
Presumptive Death under Article 41 of the Family Code based on the evidence that respondent had
presented

Petitioner also assails the RTC’s grant of the Petition for Declaration of Presumptive Death of the
absent spouse of respondent on the ground that she had not adduced the evidence required to
establish a well-founded belief that her absent spouse was already dead, as expressly required by
Article 41 of the Family Code. Petitioner cites Republic v. Nolasco,10 United States v. Biasbas11 and
Republic v. Court of Appeals and Alegro12 as authorities on the subject.

In Nolasco, petitioner Republic sought the reversal of the CA’s affirmation of the RTC’s grant of
respondent’s Petition for Declaration of Presumptive Death of his absent spouse, a British subject
who left their home in the Philippines soon after giving birth to their son while respondent was on
board a vessel working as a seafarer. Petitioner Republic sought the reversal of the ruling on the
ground that respondent was not able to establish his "well-founded belief that the absentee is
already dead," as required by Article 41 of the Family Code. In ruling thereon, this Court recognized
that this provision imposes more stringent requirements than does Article 83 of the Civil Code.13 The
Civil Code provision merely requires either that there be no news that the absentee is still alive; or
that the absentee is generally considered to be dead and is believed to be so by the spouse present,
or is presumed dead under Articles 390 and 391 of the Civil Code. In comparison, the Family Code
provision prescribes a "well-founded belief" that the absentee is already dead before a petition for
declaration of presumptive death can be granted. As noted by the Court in that case, the four
requisites for the declaration of presumptive death under the Family Code are as follows:

1. That the absent spouse has been missing for four consecutive years, or two consecutive
years if the disappearance occurred where there is danger of death under the circumstances
laid down in Article 391, Civil Code;

2. That the present spouse wishes to remarry;

3. That the present spouse has a well-founded belief that the absentee is dead; and

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

In evaluating whether the present spouse has been able to prove the existence of a "well-founded
belief" that the absent spouse is already dead, the Court in Nolasco cited United States v.
Biasbas,14 which it found to be instructive as to the diligence required in searching for a missing
spouse.

In Biasbas, the Court held that defendant Biasbas failed to exercise due diligence in ascertaining the
whereabouts of his first wife, considering his admission that that he only had a suspicion that she
was dead, and that the only basis of that suspicion was the fact of her absence.

Similarly, in Republic v. Court of Appeals and Alegro, petitioner Republic sought the reversal of the
CA ruling affirming the RTC’s grant of the Petition for Declaration of Presumptive Death of the
absent spouse on the ground that the respondent therein had not been able to prove a "well-founded
belief" that his spouse was already dead. The Court reversed the CA, granted the Petition, and
provided the following criteria for determining the existence of a "well-founded belief" under Article
41 of the Family Code:

For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse
present must institute a summary proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect of reappearance of the absent
spouse.

The spouse present is, thus, burdened to prove that his spouse has been absent and that he has a
well-founded belief that the absent spouse is already dead before the present spouse may contract a
subsequent marriage. The law does not define what is meant by a well-grounded belief. Cuello
Callon writes that "es menester que su creencia sea firme se funde en motivos racionales."

Belief is a state of the mind or condition prompting the doing of an overt act. It may be proved by
1âw phi 1

direct evidence or circumstantial evidence which may tend, even in a slight degree, to elucidate the
inquiry or assist to a determination probably founded in truth. Any fact or circumstance relating to the
character, habits, conditions, attachments, prosperity and objects of life which usually control the
conduct of men, and are the motives of their actions, was, so far as it tends to explain or
characterize their disappearance or throw light on their intentions, competence [sic] evidence on the
ultimate question of his death.

The belief of the present spouse must be the result of proper and honest to goodness inquiries and
efforts to ascertain the whereabouts of the absent spouse and whether the absent spouse is still
alive or is already dead. Whether or not the spouse present acted on a well-founded belief of death
of the absent spouse depends upon the inquiries to be drawn from a great many circumstances
occurring before and after the disappearance of the absent spouse and the nature and extent of the
inquiries made by present spouse. (Footnotes omitted, underscoring supplied.)

Applying the foregoing standards to the present case, petitioner points out that respondent Yolanda
did not initiate a diligent search to locate her absent husband. While her brother Diosdado Cadacio
testified to having inquired about the whereabouts of Cyrus from the latter’s relatives, these relatives
were not presented to corroborate Diosdado’s testimony. In short, respondent was allegedly not
diligent in her search for her husband. Petitioner argues that if she were, she would have sought
information from the Taiwanese Consular Office or assistance from other government agencies in
Taiwan or the Philippines. She could have also utilized mass media for this end, but she did not.
Worse, she failed to explain these omissions.

The Republic’s arguments are well-taken. Nevertheless, we are constrained to deny the Petition.

The RTC ruling on the issue of whether respondent was able to prove her "well-founded belief" that
her absent spouse was already dead prior to her filing of the Petition to declare him presumptively
dead is already final and can no longer be modified or reversed. Indeed, "[n]othing is more settled in
law than that when a judgment becomes final and executory, it becomes immutable and unalterable.
The same may no longer be modified in any respect, even if the modification is meant to correct
what is perceived to be an erroneous conclusion of fact or law."15

WHEREFORE, premises considered, the assailed Resolutions of the Court of Appeals dated 23
January 2009 and 3 April 2009 in CA-G.R. CV No. 90165 are AFFIRMED.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 94053 March 17, 1993

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
GREGORIO NOLASCO, respondent.

The Solicitor General for plaintiff-appellee.

Warloo G. Cardenal for respondent.

RESOLUTION

FELICIANO, J.:

On 5 August 1988, respondent Gregorio Nolasco filed before the Regional Trial Court of Antique,
Branch 10, a petition for the declaration of presumptive death of his wife Janet Monica Parker,
invoking Article 41 of the Family Code. The petition prayed that respondent's wife be declared
presumptively dead or, in the alternative, that the marriage be declared null and void.1

The Republic of the Philippines opposed the petition through the Provincial Prosecutor of Antique
who had been deputized to assist the Solicitor-General in the instant case. The Republic argued,
first, that Nolasco did not possess a "well-founded belief that the absent spouse was already
dead,"2 and second, Nolasco's attempt to have his marriage annulled in the same proceeding was a
"cunning attempt" to circumvent the law on marriage.3

During trial, respondent Nolasco testified that he was a seaman and that he had first met Janet
Monica Parker, a British subject, in a bar in England during one of his ship's port calls. From that
chance meeting onwards, Janet Monica Parker lived with respondent Nolasco on his ship for six (6)
months until they returned to respondent's hometown of San Jose, Antique on 19 November 1980
after his seaman's contract expired. On 15 January 1982, respondent married Janet Monica Parker
in San Jose, Antique, in Catholic rites officiated by Fr. Henry van Tilborg in the Cathedral of San
Jose.

Respondent Nolasco further testified that after the marriage celebration, he obtained another
employment contract as a seaman and left his wife with his parents in San Jose, Antique. Sometime
in January 1983, while working overseas, respondent received a letter from his mother informing him
that Janet Monica had given birth to his son. The same letter informed him that Janet Monica had
left Antique. Respondent claimed he then immediately asked permission to leave his ship to return
home. He arrived in Antique in November 1983.
Respondent further testified that his efforts to look for her himself whenever his ship docked in
England proved fruitless. He also stated that all the letters he had sent to his missing spouse at No.
38 Ravena Road, Allerton, Liverpool, England, the address of the bar where he and Janet Monica
first met, were all returned to him. He also claimed that he inquired from among friends but they too
had no news of Janet Monica.

On cross-examination, respondent stated that he had lived with and later married Janet Monica
Parker despite his lack of knowledge as to her family background. He insisted that his wife continued
to refuse to give him such information even after they were married. He also testified that he did not
report the matter of Janet Monica's disappearance to the Philippine government authorities.

Respondent Nolasco presented his mother, Alicia Nolasco, as his witness. She testified that her
daughter-in-law Janet Monica had expressed a desire to return to England even before she had
given birth to Gerry Nolasco on 7 December 1982. When asked why her daughter-in-law might have
wished to leave Antique, respondent's mother replied that Janet Monica never got used to the rural
way of life in San Jose, Antique. Alicia Nolasco also said that she had tried to dissuade Janet
Monica from leaving as she had given birth to her son just fifteen days before, but when she (Alicia)
failed to do so, she gave Janet Monica P22,000.00 for her expenses before she left on 22 December
1982 for England. She further claimed that she had no information as to the missing person's
present whereabouts.

The trial court granted Nolasco's petition in a Judgment dated 12 October 1988 the dispositive
portion of which reads:

Wherefore, under Article 41, paragraph 2 of the Family Code of the Philippines
(Executive Order No. 209, July 6, 1987, as amended by Executive Order No. 227,
July 17, 1987) this Court hereby declares as presumptively dead Janet Monica
Parker Nolasco, without prejudice to her reappearance.4

The Republic appealed to the Court of Appeals contending that the trial court erred in declaring
Janet Monica Parker presumptively dead because respondent Nolasco had failed to show that there
existed a well founded belief for such declaration.

The Court of Appeals affirmed the trial court's decision, holding that respondent had sufficiently
established a basis to form a belief that his absent spouse had already died.

The Republic, through the Solicitor-General, is now before this Court on a Petition for Review where
the following allegations are made:

1. The Court of Appeals erred in affirming the trial court's finding that there existed a
well-founded belief on the part of Nolasco that Janet Monica Parker was already
dead; and

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

The issue before this Court, as formulated by petitioner is "[w]hether or not Nolasco has a well-
founded belief that his wife is already dead."6
The present case was filed before the trial court pursuant to Article 41 of the Family Code which
provides that:

Art. 41. A marriage contracted by any person during the subsistence of a previous
marriage shall be null and void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four consecutive years and
the spouse present had a well-founded belief that the absent spouse was already
dead. In case of disappearance where there is danger of death under the
circumstances set forth in the provision of Article 391 of the Civil Code, an absence
of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding
paragraph, the spouse present must institute a summary proceeding as provided in
this Code for the declaration of presumptive death of the absentee, without prejudice
to the effect of reappearance of the absent spouse. (Emphasis supplied).

When Article 41 is compared with the old provision of the Civil Code, which it superseded,7 the
following crucial differences emerge. Under Article 41, the time required for the presumption to arise
has been shortened to four (4) years; however, there is need for a judicial declaration of presumptive
death to enable the spouse present to remarry.8 Also, Article 41 of the Family Code imposes a
stricter standard than the Civil Code: Article 83 of the Civil Code merely requires either that there
be no news that such absentee is still alive; or the absentee is generally considered to be
dead and believed to be so by the spouse present, or is presumed dead under Article 390 and 391
of the Civil Code.9 The Family Code, upon the other hand, prescribes as "well founded belief" that
the absentee is already dead before a petition for declaration of presumptive death can be granted.

As pointed out by the Solicitor-General, there are four (4) requisites for the declaration of
presumptive death under Article 41 of the Family Code:

1. That the absent spouse has been missing for four consecutive years, or two
consecutive years if the disappearance occurred where there is danger of death
under the circumstances laid down in Article 391, Civil Code;

2. That the present spouse wishes to remarry;

3. That the present spouse has a well-founded belief that the absentee is dead; and

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

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

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

The Court believes that respondent Nolasco failed to conduct a search for his missing wife with such
diligence as to give rise to a "well-founded belief" that she is dead.

United States v. Biasbas, 12 is instructive as to degree of diligence required in searching for a missing
spouse. In that case, defendant Macario Biasbas was charged with the crime of bigamy. He set-up
the defense of a good faith belief that his first wife had already died. The Court held that defendant
had not exercised due diligence to ascertain the whereabouts of his first wife, noting that:

While the defendant testified that he had made inquiries concerning the whereabouts
of his wife, he fails to state of whom he made such inquiries. He did not even write to
the parents of his first wife, who lived in the Province of Pampanga, for the purpose
of securing information concerning her whereabouts. He admits that he had a
suspicion only that his first wife was dead. He admits that the only basis of his
suspicion was the fact that she had been absent. . . . 13

In the case at bar, the Court considers that the investigation allegedly conducted by respondent in
his attempt to ascertain Janet Monica Parker's whereabouts is too sketchy to form the basis of a
reasonable or well-founded belief that she was already dead. When he arrived in San Jose, Antique
after learning of Janet Monica's departure, instead of seeking the help of local authorities or of the
British Embassy, 14 he secured another seaman's contract and went to London, a vast city of many
millions of inhabitants, to look for her there.

Q After arriving here in San Jose, Antique, did you exert efforts to
inquire the whereabouts of your wife?

A Yes, Sir.

Court:

How did you do that?

A I secured another contract with the ship and we had a trip to

London and I went to London to look for her I could not find
her (sic). 15 (Emphasis supplied)

Respondent's testimony, however, showed that he confused London for Liverpool and this casts
doubt on his supposed efforts to locate his wife in England. The Court of Appeal's justification of the
mistake, to wit:

. . . Well, while the cognoscente (sic) would readily know the geographical difference
between London and Liverpool, for a humble seaman like Gregorio the two places
could mean one — place in England, the port where his ship docked and where he
found Janet. Our own provincial folks, every time they leave home to visit relatives in
Pasay City, Kalookan City, or Parañaque, would announce to friends and relatives,
"We're going to Manila." This apparent error in naming of places of destination does
not appear to be fatal. 16

is not well taken. There is no analogy between Manila and its neighboring cities, on one hand, and
London and Liverpool, on the other, which, as pointed out by the Solicitor-General, are around three
hundred fifty (350) kilometers apart. We do not consider that walking into a major city like Liverpool
or London with a simple hope of somehow bumping into one particular person there — which is in
effect what Nolasco says he did — can be regarded as a reasonably diligent search.

The Court also views respondent's claim that Janet Monica declined to give any information as to
her personal background even after she had married respondent 17 too convenient an excuse to
justify his failure to locate her. The same can be said of the loss of the alleged letters respondent
had sent to his wife which respondent claims were all returned to him. Respondent said he had lost
these returned letters, under unspecified circumstances.

Neither can this Court give much credence to respondent's bare assertion that he had inquired from
their friends of her whereabouts, considering that respondent did not identify those friends in his
testimony. The Court of Appeals ruled that since the prosecutor failed to rebut this evidence during
trial, it is good evidence. But this kind of evidence cannot, by its nature, be rebutted. In any case,
admissibility is not synonymous with credibility. 18 As noted before, there are serious doubts to
respondent's credibility. Moreover, even if admitted as evidence, said testimony merely tended to
show that the missing spouse had chosen not to communicate with their common acquaintances,
and not that she was dead.

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

In Goitia v. Campos-Rueda, 20 the Court stressed that:

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

deeply interested. It is a relationship for life and the parties cannot terminate it at any
shorter period by virtue of any contract they make. . . . . 21 (Emphasis supplied)

By the same token, the spouses should not be allowed, by the simple expedient of agreeing that one
of them leave the conjugal abode and never to return again, to circumvent the policy of the laws on
marriage. The Court notes that respondent even tried to have his marriage annulled before the trial
court in the same proceeding.

In In Re Szatraw, 22 the Court warned against such collusion between the parties when they find it
impossible to dissolve the marital bonds through existing legal means.

While the Court understands the need of respondent's young son, Gerry Nolasco, for maternal care,
still the requirements of the law must prevail. Since respondent failed to satisfy the clear
requirements of the law, his petition for a judicial declaration of presumptive death must be denied.
The law does not view marriage like an ordinary contract. Article 1 of the Family Code emphasizes
that.

. . . Marriage is a special contract of permanent union between a man and a

woman entered into in accordance with law for the establishment of conjugal and
family life. It is the foundation of the familyand an inviolable social
institution whose nature, consequences, and incidents are governed by law and not
subject to stipulation, except that marriage settlements may fix the property relations
during the marriage within the limits provided by this Code. (Emphasis supplied)

In Arroyo, Jr. v. Court of Appeals, 23 the Court stressed strongly the need to protect.
 . . . the basic social institutions of marriage and the family in the preservation of
which the State bas the strongest interest; the public policy here involved is of the
most fundamental kind. In Article II, Section 12 of the Constitution there is set forth
the following basic state policy:

The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution. . . .

The same sentiment bas been expressed in the Family Code of the Philippines in
Article 149:

The family, being the foundation of the nation, is a basic social

institution which public policy cherishes and protects. Consequently,
family relations are governed by law and no custom, practice or
agreement destructive of the family shall be recognized or given
effect. 24

In fine, respondent failed to establish that he had the well-founded belief required by law that his
absent wife was already dead that would sustain the issuance of a court order declaring Janet
Monica Parker presumptively dead.

WHEREFORE, the Decision of the Court of Appeals dated 23 February 1990, affirming the trial
court's decision declaring Janet Monica Parker presumptively dead is hereby REVERSED and both
Decisions are hereby NULLIFIED and SET ASIDE. Costs against respondent.

Bidin, Davide, Jr., Romero and Melo, JJ., concur.

Gutierrez, Jr. J., is on leave

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 94053 March 17, 1993

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
GREGORIO NOLASCO, respondent.

The Solicitor General for plaintiff-appellee.

Warloo G. Cardenal for respondent.

RESOLUTION
FELICIANO, J.:

On 5 August 1988, respondent Gregorio Nolasco filed before the Regional Trial Court of Antique,
Branch 10, a petition for the declaration of presumptive death of his wife Janet Monica Parker,
invoking Article 41 of the Family Code. The petition prayed that respondent's wife be declared
presumptively dead or, in the alternative, that the marriage be declared null and void.1

The Republic of the Philippines opposed the petition through the Provincial Prosecutor of Antique
who had been deputized to assist the Solicitor-General in the instant case. The Republic argued,
first, that Nolasco did not possess a "well-founded belief that the absent spouse was already
dead,"2 and second, Nolasco's attempt to have his marriage annulled in the same proceeding was a
"cunning attempt" to circumvent the law on marriage.3

During trial, respondent Nolasco testified that he was a seaman and that he had first met Janet
Monica Parker, a British subject, in a bar in England during one of his ship's port calls. From that
chance meeting onwards, Janet Monica Parker lived with respondent Nolasco on his ship for six (6)
months until they returned to respondent's hometown of San Jose, Antique on 19 November 1980
after his seaman's contract expired. On 15 January 1982, respondent married Janet Monica Parker
in San Jose, Antique, in Catholic rites officiated by Fr. Henry van Tilborg in the Cathedral of San
Jose.

Respondent Nolasco further testified that after the marriage celebration, he obtained another
employment contract as a seaman and left his wife with his parents in San Jose, Antique. Sometime
in January 1983, while working overseas, respondent received a letter from his mother informing him
that Janet Monica had given birth to his son. The same letter informed him that Janet Monica had
left Antique. Respondent claimed he then immediately asked permission to leave his ship to return
home. He arrived in Antique in November 1983.

Respondent further testified that his efforts to look for her himself whenever his ship docked in
England proved fruitless. He also stated that all the letters he had sent to his missing spouse at No.
38 Ravena Road, Allerton, Liverpool, England, the address of the bar where he and Janet Monica
first met, were all returned to him. He also claimed that he inquired from among friends but they too
had no news of Janet Monica.

On cross-examination, respondent stated that he had lived with and later married Janet Monica
Parker despite his lack of knowledge as to her family background. He insisted that his wife continued
to refuse to give him such information even after they were married. He also testified that he did not
report the matter of Janet Monica's disappearance to the Philippine government authorities.

Respondent Nolasco presented his mother, Alicia Nolasco, as his witness. She testified that her
daughter-in-law Janet Monica had expressed a desire to return to England even before she had
given birth to Gerry Nolasco on 7 December 1982. When asked why her daughter-in-law might have
wished to leave Antique, respondent's mother replied that Janet Monica never got used to the rural
way of life in San Jose, Antique. Alicia Nolasco also said that she had tried to dissuade Janet
Monica from leaving as she had given birth to her son just fifteen days before, but when she (Alicia)
failed to do so, she gave Janet Monica P22,000.00 for her expenses before she left on 22 December
1982 for England. She further claimed that she had no information as to the missing person's
present whereabouts.

The trial court granted Nolasco's petition in a Judgment dated 12 October 1988 the dispositive
portion of which reads:
 Wherefore, under Article 41, paragraph 2 of the Family Code of the Philippines
(Executive Order No. 209, July 6, 1987, as amended by Executive Order No. 227,
July 17, 1987) this Court hereby declares as presumptively dead Janet Monica
Parker Nolasco, without prejudice to her reappearance.4

The Republic appealed to the Court of Appeals contending that the trial court erred in declaring
Janet Monica Parker presumptively dead because respondent Nolasco had failed to show that there
existed a well founded belief for such declaration.

The Court of Appeals affirmed the trial court's decision, holding that respondent had sufficiently
established a basis to form a belief that his absent spouse had already died.

The Republic, through the Solicitor-General, is now before this Court on a Petition for Review where
the following allegations are made:

1. The Court of Appeals erred in affirming the trial court's finding that there existed a
well-founded belief on the part of Nolasco that Janet Monica Parker was already
dead; and

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

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

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

Art. 41. A marriage contracted by any person during the subsistence of a previous
marriage shall be null and void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four consecutive years and
the spouse present had a well-founded belief that the absent spouse was already
dead. In case of disappearance where there is danger of death under the
circumstances set forth in the provision of Article 391 of the Civil Code, an absence
of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding
paragraph, the spouse present must institute a summary proceeding as provided in
this Code for the declaration of presumptive death of the absentee, without prejudice
to the effect of reappearance of the absent spouse. (Emphasis supplied).

When Article 41 is compared with the old provision of the Civil Code, which it superseded,7 the
following crucial differences emerge. Under Article 41, the time required for the presumption to arise
has been shortened to four (4) years; however, there is need for a judicial declaration of presumptive
death to enable the spouse present to remarry.8 Also, Article 41 of the Family Code imposes a
stricter standard than the Civil Code: Article 83 of the Civil Code merely requires either that there
be no news that such absentee is still alive; or the absentee is generally considered to be
dead and believed to be so by the spouse present, or is presumed dead under Article 390 and 391
of the Civil Code.9 The Family Code, upon the other hand, prescribes as "well founded belief" that
the absentee is already dead before a petition for declaration of presumptive death can be granted.
As pointed out by the Solicitor-General, there are four (4) requisites for the declaration of
presumptive death under Article 41 of the Family Code:

1. That the absent spouse has been missing for four consecutive years, or two
consecutive years if the disappearance occurred where there is danger of death
under the circumstances laid down in Article 391, Civil Code;

2. That the present spouse wishes to remarry;

3. That the present spouse has a well-founded belief that the absentee is dead; and

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

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

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

The Court believes that respondent Nolasco failed to conduct a search for his missing wife with such
diligence as to give rise to a "well-founded belief" that she is dead.

United States v. Biasbas, 12 is instructive as to degree of diligence required in searching for a missing
spouse. In that case, defendant Macario Biasbas was charged with the crime of bigamy. He set-up
the defense of a good faith belief that his first wife had already died. The Court held that defendant
had not exercised due diligence to ascertain the whereabouts of his first wife, noting that:

While the defendant testified that he had made inquiries concerning the whereabouts
of his wife, he fails to state of whom he made such inquiries. He did not even write to
the parents of his first wife, who lived in the Province of Pampanga, for the purpose
of securing information concerning her whereabouts. He admits that he had a
suspicion only that his first wife was dead. He admits that the only basis of his
suspicion was the fact that she had been absent. . . . 13

In the case at bar, the Court considers that the investigation allegedly conducted by respondent in
his attempt to ascertain Janet Monica Parker's whereabouts is too sketchy to form the basis of a
reasonable or well-founded belief that she was already dead. When he arrived in San Jose, Antique
after learning of Janet Monica's departure, instead of seeking the help of local authorities or of the
British Embassy, 14 he secured another seaman's contract and went to London, a vast city of many
millions of inhabitants, to look for her there.

Q After arriving here in San Jose, Antique, did you exert efforts to
inquire the whereabouts of your wife?

A Yes, Sir.

Court:

How did you do that?

 A I secured another contract with the ship and we had a trip to
London and I went to London to look for her I could not find
her (sic). 15 (Emphasis supplied)

Respondent's testimony, however, showed that he confused London for Liverpool and this casts
doubt on his supposed efforts to locate his wife in England. The Court of Appeal's justification of the
mistake, to wit:

. . . Well, while the cognoscente (sic) would readily know the geographical difference
between London and Liverpool, for a humble seaman like Gregorio the two places
could mean one — place in England, the port where his ship docked and where he
found Janet. Our own provincial folks, every time they leave home to visit relatives in
Pasay City, Kalookan City, or Parañaque, would announce to friends and relatives,
"We're going to Manila." This apparent error in naming of places of destination does
not appear to be fatal. 16

is not well taken. There is no analogy between Manila and its neighboring cities, on one hand, and
London and Liverpool, on the other, which, as pointed out by the Solicitor-General, are around three
hundred fifty (350) kilometers apart. We do not consider that walking into a major city like Liverpool
or London with a simple hope of somehow bumping into one particular person there — which is in
effect what Nolasco says he did — can be regarded as a reasonably diligent search.

The Court also views respondent's claim that Janet Monica declined to give any information as to
her personal background even after she had married respondent 17 too convenient an excuse to
justify his failure to locate her. The same can be said of the loss of the alleged letters respondent
had sent to his wife which respondent claims were all returned to him. Respondent said he had lost
these returned letters, under unspecified circumstances.

Neither can this Court give much credence to respondent's bare assertion that he had inquired from
their friends of her whereabouts, considering that respondent did not identify those friends in his
testimony. The Court of Appeals ruled that since the prosecutor failed to rebut this evidence during
trial, it is good evidence. But this kind of evidence cannot, by its nature, be rebutted. In any case,
admissibility is not synonymous with credibility. 18 As noted before, there are serious doubts to
respondent's credibility. Moreover, even if admitted as evidence, said testimony merely tended to
show that the missing spouse had chosen not to communicate with their common acquaintances,
and not that she was dead.

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

In Goitia v. Campos-Rueda, 20 the Court stressed that:

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

deeply interested. It is a relationship for life and the parties cannot terminate it at any
shorter period by virtue of any contract they make. . . . . 21 (Emphasis supplied)
By the same token, the spouses should not be allowed, by the simple expedient of agreeing that one
of them leave the conjugal abode and never to return again, to circumvent the policy of the laws on
marriage. The Court notes that respondent even tried to have his marriage annulled before the trial
court in the same proceeding.

In In Re Szatraw, 22 the Court warned against such collusion between the parties when they find it
impossible to dissolve the marital bonds through existing legal means.

While the Court understands the need of respondent's young son, Gerry Nolasco, for maternal care,
still the requirements of the law must prevail. Since respondent failed to satisfy the clear
requirements of the law, his petition for a judicial declaration of presumptive death must be denied.
The law does not view marriage like an ordinary contract. Article 1 of the Family Code emphasizes
that.

. . . Marriage is a special contract of permanent union between a man and a

woman entered into in accordance with law for the establishment of conjugal and
family life. It is the foundation of the familyand an inviolable social
institution whose nature, consequences, and incidents are governed by law and not
subject to stipulation, except that marriage settlements may fix the property relations
during the marriage within the limits provided by this Code. (Emphasis supplied)

In Arroyo, Jr. v. Court of Appeals, 23 the Court stressed strongly the need to protect.

. . . the basic social institutions of marriage and the family in the preservation of
which the State bas the strongest interest; the public policy here involved is of the
most fundamental kind. In Article II, Section 12 of the Constitution there is set forth
the following basic state policy:

The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution. . . .

The same sentiment bas been expressed in the Family Code of the Philippines in
Article 149:

The family, being the foundation of the nation, is a basic social

institution which public policy cherishes and protects. Consequently,
family relations are governed by law and no custom, practice or
agreement destructive of the family shall be recognized or given
effect. 24

In fine, respondent failed to establish that he had the well-founded belief required by law that his
absent wife was already dead that would sustain the issuance of a court order declaring Janet
Monica Parker presumptively dead.

WHEREFORE, the Decision of the Court of Appeals dated 23 February 1990, affirming the trial
court's decision declaring Janet Monica Parker presumptively dead is hereby REVERSED and both
Decisions are hereby NULLIFIED and SET ASIDE. Costs against respondent.

Bidin, Davide, Jr., Romero and Melo, JJ., concur.

Gutierrez, Jr. J., is on leave

 THIRD DIVISION

SOCIAL SECURITY SYSTEM, G.R. No. 165545

Petitioner,
Present:

QUISUMBING, Chairperson,*
-versus- CARPIO, Acting Chairperson,
CARPIO MORALES, and
TINGA, JJ.

TERESITA JARQUE VDA. DE

BAILON, Promulgated:
Respondent.
March 24, 2006
x----------------------------------------------x

DECISION

CARPIO MORALES, J.:

The Court of Appeals Decision[1] dated June 23, 2004[2] and Resolution dated
September 28, 2004[3] reversing the Resolution dated April 2, 2003[4] and Order
dated June 4, 2003[5] of the Social Security Commission (SSC) in SSC Case No. 4-
15149-01 are challenged in the present petition for review on certiorari.

On April 25, 1955, Clemente G. Bailon (Bailon) and Alice P. Diaz (Alice)
contracted marriage in Barcelona, Sorsogon.[6]

More than 15 years later or on October 9, 1970, Bailon filed before the then
Court of First Instance (CFI) of Sorsogon a petition[7] to declare Alice presumptively
dead.

By Order of December 10, 1970,[8] the CFI granted the petition, disposing as
follows:
 WHEREFORE, there being no opposition filed against the petition
notwithstanding the publication of the Notice of Hearing in a newspaper
of general circulation in the country, Alice Diaz is hereby declared to [sic]
all legal intents and purposes, except for those of
succession, presumptively dead.

SO ORDERED.[9] (Underscoring supplied)

Close to 13 years after his wife Alice was declared presumptively dead or
on August 8, 1983, Bailon contracted marriage with Teresita Jarque (respondent) in
Casiguran, Sorsogon.[10]

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

Respondent thereupon filed a claim for funeral benefits, and was

granted P12,000[12] by the SSS.

Respondent filed on March 11, 1998 an additional claim for death

benefits[13] which was also granted by the SSS on April 6, 1998.[14]

Cecilia Bailon-Yap (Cecilia), who claimed to be a daughter of Bailon and one

Elisa Jayona (Elisa) contested before the SSS the release to respondent of the death
and funeral benefits. She claimed that Bailon contracted three marriages in his
lifetime, the first with Alice, the second with her mother Elisa, and the third with
respondent, all of whom are still alive; she, together with her siblings, paid for
Bailons medical and funeral expenses; and all the documents submitted by
respondent to the SSS in support of her claims are spurious.

In support of her claim, Cecilia and her sister Norma Bailon Chavez (Norma)
submitted an Affidavit dated February 13, 1999[15] averring that they are two of nine
children of Bailon and Elisa who cohabited as husband and wife as early as
1958; and they were reserving their right to file the necessary court action to contest
the marriage between Bailon and respondent as they personally know that Alice is
still very much alive.[16]
 In the meantime, on April 5, 1999, a certain Hermes P. Diaz, claiming to be
the brother and guardian of Aliz P. Diaz, filed before the SSS a claim for death
benefits accruing from Bailons death,[17] he further attesting in a sworn
statement[18] that it was Norma who defrayed Bailons funeral expenses.

Elisa and seven of her children[19] subsequently filed claims for death benefits
as Bailons beneficiaries before the SSS.[20]

Atty. Marites C. de la Torre of the Legal Unit of the SSS Bicol Cluster, Naga
City recommended the cancellation of payment of death pension benefits to
respondent and the issuance of an order for the refund of the amount paid to her from
February 1998 to May 1999 representing such benefits; the denial of the claim of
Alice on the ground that she was not dependent upon Bailon for support during his
lifetime; and the payment of the balance of the five-year guaranteed pension
to Bailons beneficiaries according to the order of preference provided under the law,
after the amount erroneously paid to respondent has been collected. The pertinent
portions of the Memorandum read:

1. Aliz [sic] Diaz never disappeared. The court must have been
misled by misrepresentation in declaring the first wife, Aliz [sic] Diaz, as
presumptively dead.

xxxx

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

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

3. It was the deceased member who abandoned his wife, Aliz [sic]
Diaz. He, being in bad faith, and is the deserting spouse, his remarriage is
void, being bigamous.

xxxx

In this case, it is the deceased member who was the deserting

spouse and who remarried, thus his marriage to Teresita Jarque, for the
 second time was void as it was bigamous. To require affidavit of
reappearance to terminate the second marriage is not necessary as there is
no disappearance of Aliz [sic] Diaz, the first wife, and a voidable marriage
[sic], to speak of.[21](Underscoring supplied)

In the meantime, the SSS Sorsogon Branch, by letter of August 16,

[22]
2000, advised respondent that as Cecilia and Norma were the ones who defrayed
Bailons funeral expenses, she should return the P12,000 paid to her.

In a separate letter dated September 7, 1999,[23] the SSS advised respondent of

the cancellation of her monthly pension for death benefits in view of the opinion
rendered by its legal department that her marriage with Bailon was void as it was
contracted while the latters marriage with Alice was still subsisting; and the
December 10, 1970 CFI Order declaring Alice presumptively dead did not become
final, her presence being contrary proof against the validity of the order. It thus
requested respondent to return the amount of P24,000 representing the total amount
of monthly pension she had received from the SSS from February 1998 to May 1999.

Respondent protested the cancellation of her monthly pension for death

benefits by letter to the SSS dated October 12, 1999.[24] In a subsequent letter dated
November 27, 1999[25] to the SSC, she reiterated her request for the release of her
monthly pension, asserting that her marriage with Bailon was not declared before
any court of justice as bigamous or unlawful, hence, it remained valid and subsisting
for all legal intents and purposes as in fact Bailon designated her as his beneficiary.

The SSS, however, by letter to respondent dated January 21,

[26]
2000, maintained the denial of her claim for and the discontinuance of payment
of monthly pension. It advised her, however, that she was not deprived of her right
to file a petition with the SSC.

Respondent thus filed a petition[27] against the SSS before the SSC for the
restoration to her of her entitlement to monthly pension.

In the meantime, respondent informed the SSS that she was returning, under
protest, the amount of P12,000 representing the funeral benefits she received, she
alleging that Norma and her siblings forcibly and coercively prevented her from
spending any amount during Bailons wake.[28]

After the SSS filed its Answer[29] to respondents petition, and the parties filed
their respective Position Papers, one Alicia P. Diaz filed an Affidavit [30] dated
August 14, 2002 with the SSS Naga Branch attesting that she is the widow of Bailon;
she had only recently come to know of the petition filed by Bailon to declare her
presumptively dead; it is not true that she disappeared as Bailon could have easily
located her, she having stayed at her parents residence in Barcelona, Sorsogon after
she found out that Bailon was having an extramarital affair; and Bailon used to visit
her even after their separation.

By Resolution of April 2, 2003, the SSC found that the marriage of respondent
to Bailon was void and, therefore, she was just a common-law-wife. Accordingly it
disposed as follows, quoted verbatim:

WHEREFORE, this Commission finds, and so holds, that

petitioner Teresita Jarque-Bailon is not the legitimate spouse and primary
beneficiary of SSS member Clemente Bailon.

Accordingly, the petitioner is hereby ordered to refund to the SSS

the amount of P24,000.00 representing the death benefit she received
therefrom for the period February 1998 until May 1999 as well
as P12,000.00 representing the funeral benefit.

The SSS is hereby ordered to pay Alice (a.k.a. Aliz) Diaz-

Bailon the appropriate death benefit arising from the demise of SSS
member Clemente Bailon in accordance with Section 8(e) and (k) as well
as Section 13 of the SS Law, as amended, and its prevailing rules and
regulations and to inform this Commission of its compliance herewith.

SO ORDERED.[31] (Underscoring supplied)

In so ruling against respondent, the SSC ratiocinated.

 After a thorough examination of the evidence at hand, this
Commission comes to the inevitable conclusion that the petitioner is not
the legitimate wife of the deceased member.

xxxx

There is x x x ample evidence pointing to the fact that, contrary to

the declaration of the then CFI of Sorsogon (10 th Judicial District), the
first wife never disappeared as the deceased member represented in bad
faith. This Commission accords credence to the findings of the SSS
contained in its Memorandum dated August 9, 1999,[32] revealing that
Alice (a.k.a. Aliz) Diaz never left Barcelona, Sorsogon, after her
separation from Clemente Bailon x x x.
As the declaration of presumptive death was extracted by the
deceased member using artifice and by exerting fraud upon the
unsuspecting court of law, x x x it never had the effect of giving the
deceased member the right to marry anew. x x x [I]t is clear that the
marriage to the petitioner is void, considering that the first marriage on
April 25, 1955 to Alice Diaz was not previously annulled, invalidated or
otherwise dissolved during the lifetime of the parties thereto. x x x as
determined through the investigation conducted by the SSS, Clemente
Bailon was the abandoning spouse, not Alice Diaz Bailon.

xxxx

It having been established, by substantial evidence, that the

petitioner was just a common-law wife of the deceased member, it
necessarily follows that she is not entitled as a primary beneficiary, to the
latters death benefit. x x x

xxxx

It having been determined that Teresita Jarque was not the

legitimate surviving spouse and primary beneficiary of Clemente Bailon,
it behooves her to refund the total amount of death benefit she
received from the SSS for the period from February 1998 until May 1999
pursuant to the principle of solutio indebiti x x x

Likewise, it appearing that she was not the one who actually
defrayed the cost of the wake and burial of Clemente Bailon, she
 must return the amount of P12,000.00 which was earlier given to her by
the SSS as funeral benefit.[33] (Underscoring supplied)

Respondents Motion for Reconsideration[34] having been denied by Order

of June 4, 2003, she filed a petition for review[35] before the Court of Appeals (CA).

By Decision of June 23, 2004, the CA reversed and set aside the April 2,
2003 Resolution and June 4, 2003 Order of the SSC and thus ordered the SSS to
pay respondent all the pension benefits due her. Held the CA:

x x x [T]he paramount concern in this case transcends the issue of

whether or not the decision of the then CFI, now RTC, declaring Alice
Diaz presumptively dead has attained finality but, more
importantly, whether or not the respondents SSS and Commission can
validly re-evaluate the findings of the RTC, and on its own, declare the
latters decision to be bereft of any basis.On similar import, can
respondents SSS and Commission validly declare the first marriage
subsisting and the second marriage null and void?

xxxx

x x x while it is true that a judgment declaring a person

presumptively dead never attains finality as the finding that the person is
unheard of in seven years is merely a presumption juris tantum, the
second marriage contracted by a person with an absent spouse endures
until annulled. It is only the competent court that can nullify the
second marriage pursuant to Article 87 of the Civil Code and upon the
reappearance of the missing spouse, which action for annulment may be
filed. Nowhere does the law contemplates [sic] the possibility that
respondent SSS may validly declare the second marriage null and void on
the basis alone of its own investigation and declare that the decision of the
RTC declaring one to be presumptively dead is without basis.

Respondent SSS cannot arrogate upon itself the authority to

review the decision of the regular courts under the pretext of
determining the actual and lawful beneficiaries of its
members. Notwithstanding its opinion as to the soundness of the findings
of the RTC, it should extend due credence to the decision of the RTC
absent of [sic] any judicial pronouncement to the contrary. x x x
 x x x [A]ssuming arguendo that respondent SSS actually possesses
the authority to declare the decision of the RTC to be without basis, the
procedure it followed was offensive to the principle of fair play and thus
its findings are of doubtful quality considering that petitioner Teresita was
not given ample opportunity to present evidence for and her behalf.

xxxx

Respondent SSS is correct in stating that the filing of an Affidavit

of Reappearance with the Civil Registry is no longer practical under the
premises. Indeed, there is no more first marriage to restore as the marital
bond between Alice Diaz and Clemente Bailon was already terminated
upon the latters death. Neither is there a second marriage to terminate
because the second marriage was likewise dissolved by the death of
Clemente Bailon.

However, it is not correct to conclude that simply because the filing

of the Affidavit of Reappearance with the Civil Registry where parties to
the subsequent marriage reside is already inutile, the respondent SSS has
now the authority to review the decision of the RTC and consequently
declare the second marriage null and void.[36] (Emphasis and underscoring
supplied)

The SSC and the SSS separately filed their Motions for
Reconsideration[37] which were both denied for lack of merit.

Hence, the SSS present petition for review on certiorari[38] anchored on the
following grounds:

THE DECISION OF THE HONORABLE COURT OF APPEALS IS

CONTRARY TO LAW.

II

THE HONORABLE COURT OF APPEALS GRAVELY ABUSED ITS

DISCRETION AMOUNTING TO LACK OF JURISDICTION.[39]
 The SSS faults the CA for failing to give due consideration to the findings of
facts of the SSC on the prior and subsisting marriage between Bailon and Alice; in
disregarding the authority of the SSC to determine to whom, between Alice and
respondent, the death benefits should be awarded pursuant to Section 5 [40] of the
Social Security Law; and in declaring that the SSS did not give respondent due
process or ample opportunity to present evidence in her behalf.

The SSS submits that the observations and findings relative to the CFI
proceedings are of no moment to the present controversy, as the same may be
considered only as obiter dicta in view of the SSCs finding of the existence of a prior
and subsisting marriage between Bailon and Alice by virtue of which Alice has a
better right to the death benefits.[41]

The petition fails.

That the SSC is empowered to settle any dispute with respect to SSS coverage,
benefits and contributions, there is no doubt. In so exercising such power, however,
it cannot review, much less reverse, decisions rendered by courts of law as it did in
the case at bar when it declared that the December 10, 1970 CFI Order was obtained
through fraud and subsequently disregarded the same, making its own findings with
respect to the validity of Bailon and Alices marriage on the one hand and the
invalidity of Bailon and respondents marriage on the other.

In interfering with and passing upon the CFI Order, the SSC virtually acted as
an appellate court. The law does not give the SSC unfettered discretion to trifle with
orders of regular courts in the exercise of its authority to determine the beneficiaries
of the SSS.
 The two marriages involved herein having been solemnized prior to the
effectivity on August 3, 1988 of the Family Code, the applicable law to determine
their validity is the Civil Code which was the law in effect at the time of their
celebration.[42]

Article 83 of the Civil Code[43] provides:

Art. 83. Any marriage subsequently contracted by any person during the
lifetime of the first spouse of such person with any person other than such first
spouse shall be illegal and void from its performance, unless:

(1) The first marriage was annulled or dissolved; or

(2) The first spouse had been absent for seven consecutive years at the time
of the second marriage without the spouse present having news of the absentee
being alive, or if the absentee, though he has been absent for less than seven years,
is generally considered as dead and believed to be so by the spouse present at the
time of contracting such subsequent marriage, or if the absentee is presumed dead
according to Articles 390 and 391. The marriage so contracted shall be valid in
any of the three cases until declared null and void by a competent court. (Emphasis
and underscoring supplied)

Under the foregoing provision of the Civil Code, a subsequent marriage

contracted during the lifetime of the first spouse is illegal and void ab initio unless
the prior marriage is first annulled or dissolved or contracted under any of the three
exceptional circumstances. It bears noting that the marriage under any of these
exceptional cases is deemed valid until declared null and void by a competent
court. It follows that the onus probandi in these cases rests on the party assailing
the second marriage.[44]

In the case at bar, as found by the CFI, Alice had been absent for 15
consecutive years[45] when Bailon sought the declaration of her presumptive death,
which judicial declaration was not even a requirement then for purposes of
remarriage.[46]
 Eminent jurist Arturo M. Tolentino (now deceased) commented:

Where a person has entered into two successive marriages, a presumption

arises in favor of the validity of the second marriage, and the burden is on the party
attacking the validity of the second marriage to prove that the first marriage had not
been dissolved; it is not enough to prove the first marriage, for it must also be shown
that it had not ended when the second marriage was contracted. The presumption in
favor of the innocence of the defendant from crime or wrong and of the legality of
his second marriage, will prevail over the presumption of the continuance of life of
the first spouse or of the continuance of the marital relation with such first
spouse.[47] (Underscoring supplied)

Under the Civil Code, a subsequent marriage being voidable,[48] it is

terminated by final judgment of annulment in a case instituted by the absent spouse
who reappears or by either of the spouses in the subsequent marriage.

Under the Family Code, no judicial proceeding to annul a subsequent

marriage is necessary. Thus Article 42 thereof provides:

Art. 42. The subsequent marriage referred to in the preceding Article shall
be automatically terminated by the recording of the affidavit of reappearance of
the absent spouse, unless there is a judgment annulling the previous marriage or
declaring it void ab initio.

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

recorded in the civil registry of the residence of the parties to the subsequent
marriage at the instance of any interested person, with due notice to the spouses
of the subsequent marriage and without prejudice to the fact of reappearance
being judicially determined in case such fact is disputed. (Emphasis and
underscoring supplied)

The termination of the subsequent marriage by affidavit provided by the

above-quoted provision of the Family Code does not preclude the filing of an action
in court to prove the reappearance of the absentee and obtain a declaration of
dissolution or termination of the subsequent marriage.[49]
 If the absentee reappears, but no step is taken to terminate the subsequent
marriage, either by affidavit or by court action, such absentees mere reappearance,
even if made known to the spouses in the subsequent marriage, will not terminate
such marriage.[50] Since the second marriage has been contracted because of a
presumption that the former spouse is dead, such presumption continues inspite of
the spouses physical reappearance, and by fiction of law, he or she must still be
regarded as legally an absentee until the subsequent marriage is terminated as
provided by law.[51]

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

reappearance or by judicial declaration but by death of either spouse as in the case
at bar, Tolentino submits:

x x x [G]enerally if a subsequent marriage is dissolved by the death of

either spouse, the effects of dissolution of valid marriages shall arise. The good or
bad faith of either spouse can no longer be raised, because, as in annullable
or voidable marriages, the marriage cannot be questioned except in a direct action
for annulment.[52] (Underscoring supplied)

Similarly, Lapuz v. Eufemio[53] instructs:

In fact, even if the bigamous marriage had not been void ab initio but
only voidable under Article 83, paragraph 2, of the Civil Code, because the second
marriage had been contracted with the first wife having been an absentee for seven
consecutive years, or when she had been generally believed dead, still the action
for annulment became extinguished as soon as one of the three persons involved
had died, as provided in Article 87, paragraph 2, of the Code, requiring that the
action for annulment should be brought during the lifetime of any one of the
parties involved. And furthermore, the liquidation of any conjugal partnership that
might have resulted from such voidable marriage must be carried out in the testate
or intestate proceedings of the deceased spouse, as expressly provided in Section 2
of the Revised Rule 73, and not in the annulment proceeding.[54] (Emphasis and
underscoring supplied)
 It bears reiterating that a voidable marriage cannot be assailed collaterally
except in a direct proceeding. Consequently, such marriages can be assailed only
during the lifetime of the parties and not after the death of either, in which case the
parties and their offspring will be left as if the marriage had been perfectly
valid.[55] Upon the death of either, the marriage cannot be impeached, and is made
good ab initio.[56]

In the case at bar, as no step was taken to nullify, in accordance with law,
Bailons and respondents marriage prior to the formers death in 1998, respondent is
rightfully the dependent spouse-beneficiary of Bailon.

In light of the foregoing discussions, consideration of the other issues raised

has been rendered unnecessary.

WHEREFORE, the petition is DENIED.

No costs.

SO ORDERED.

THIRD DIVISION

G.R. NO. 155409 June 8, 2007

VIRGILIO MAQUILAN, petitioner,

vs.
DITA MAQUILAN, respondent.

DECISION

AUSTRIA-MARTINEZ, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing
the Decision1dated August 30, 2002 promulgated by the Court of Appeals (CA) in CA-G.R. SP No.
69689, which affirmed the Judgment on Compromise Agreement dated January 2, 2002 of the
Regional Trial Court (RTC), Branch 3, Nabunturan, Compostela Valley, and the RTC Orders dated
January 21, 2002 and February 7, 2002 (ORDERS) in Civil Case No. 656.
The facts of the case, as found by the CA, are as follows:

Herein petitioner and herein private respondent are spouses who once had a blissful married life and
out of which were blessed to have a son. However, their once sugar coated romance turned bitter
when petitioner discovered that private respondent was having illicit sexual affair with her paramour,
which thus, prompted the petitioner to file a case of adultery against private respondent and the
latter’s paramour. Consequently, both the private respondent and her paramour were convicted of
the crime charged and were sentenced to suffer an imprisonment ranging from one (1) year, eight
(8) months, minimum of prision correccional as minimum penalty, to three (3) years, six (6) months
and twenty one (21) days, medium of prision correccional as maximum penalty.

Thereafter, private respondent, through counsel, filed a Petition for Declaration of Nullity of Marriage,
Dissolution and Liquidation of Conjugal Partnership of Gains and Damages on June 15, 2001 with
the Regional Trial Court, Branch 3 of Nabunturan, Compostela Valley, docketed as Civil Case No.
656, imputing psychological incapacity on the part of the petitioner.

During the pre-trial of the said case, petitioner and private respondent entered into a COMPROMISE
AGREEMENT in the following terms, to wit:

1. In partial settlement of the conjugal partnership of gains, the parties agree to the following:

a. ₱500,000.00 of the money deposited in the bank jointly in the name of the spouses shall be
withdrawn and deposited in favor and in trust of their common child, Neil Maquilan, with the deposit
in the joint account of the parties.

The balance of such deposit, which presently stands at ₱1,318,043.36, shall be withdrawn and
divided equally by the parties;

b. The store that is now being occupied by the plaintiff shall be allotted to her while the bodega shall
be for the defendant. The defendant shall be paid the sum of ₱50,000.00 as his share in the stocks
of the store in full settlement thereof.

The plaintiff shall be allowed to occupy the bodega until the time the owner of the lot on which it
stands shall construct a building thereon;

c. The motorcycles shall be divided between them such that the Kawasaki shall be owned by the
plaintiff while the Honda Dream shall be for the defendant;

d. The passenger jeep shall be for the plaintiff who shall pay the defendant the sum of ₱75,000.00
as his share thereon and in full settlement thereof;

e. The house and lot shall be to the common child.

2. This settlement is only partial, i.e., without prejudice to the litigation of other conjugal properties
that have not been mentioned;

xxxx

The said Compromise Agreement was given judicial imprimatur by the respondent judge in the
assailed Judgment On Compromise Agreement, which was erroneously dated January 2, 2002.2
However, petitioner filed an Omnibus Motion dated January 15, 2002, praying for the repudiation of
the Compromise Agreement and the reconsideration of the Judgment on Compromise Agreement by
the respondent judge on the grounds that his previous lawyer did not intelligently and judiciously
apprise him of the consequential effects of the Compromise Agreement.

The respondent Judge in the assailed Order dated January 21, 2002, denied the aforementioned
Omnibus Motion.

Displeased, petitioner filed a Motion for Reconsideration of the aforesaid Order, but the same was
denied in the assailed Order dated February 7, 2002.3 (Emphasis supplied)

The petitioner filed a Petition for Certiorari and Prohibition with the CA under Rule 65 of the Rules of
Court claiming that the RTC committed grave error and abuse of discretion amounting to lack or
excess of jurisdiction (1) in upholding the validity of the Compromise Agreement dated January 11,
2002; (2) when it held in its Order dated February 7, 2002 that the Compromise Agreement was
made within the cooling-off period; (3) when it denied petitioner’s Motion to Repudiate Compromise
Agreement and to Reconsider Its Judgment on Compromise Agreement; and (4) when it conducted
the proceedings without the appearance and participation of the Office of the Solicitor General
and/or the Provincial Prosecutor.4

On August 30, 2002, the CA dismissed the Petition for lack of merit. The CA held that the conviction
of the respondent of the crime of adultery does not ipso facto disqualify her from sharing in the
conjugal property, especially considering that she had only been sentenced with the penalty of
prision correccional, a penalty that does not carry the accessory penalty of civil interdiction which
deprives the person of the rights to manage her property and to dispose of such property inter vivos;
that Articles 43 and 63 of the Family Code, which pertain to the effects of a nullified marriage and the
effects of legal separation, respectively, do not apply, considering, too, that the Petition for the
Declaration of the Nullity of Marriage filed by the respondent invoking Article 36 of the Family Code
has yet to be decided, and, hence, it is premature to apply Articles 43 and 63 of the Family Code;
that, although adultery is a ground for legal separation, nonetheless, Article 63 finds no application in
the instant case since no petition to that effect was filed by the petitioner against the respondent; that
the spouses voluntarily separated their property through their Compromise Agreement with court
approval under Article 134 of the Family Code; that the Compromise Agreement, which embodies
the voluntary separation of property, is valid and binding in all respects because it had been
voluntarily entered into by the parties; that, furthermore, even if it were true that the petitioner was
not duly informed by his previous counsel about the legal effects of the Compromise Agreement, this
point is untenable since the mistake or negligence of the lawyer binds his client, unless such mistake
or negligence amounts to gross negligence or deprivation of due process on the part of his client;
that these exceptions are not present in the instant case; that the Compromise Agreement was
plainly worded and written in simple language, which a person of ordinary intelligence can discern
the consequences thereof, hence, petitioner’s claim that his consent was vitiated is highly incredible;
that the Compromise Agreement was made during the existence of the marriage of the parties since
it was submitted during the pendency of the petition for declaration of nullity of marriage; that the
application of Article 2035 of the Civil Code is misplaced; that the cooling-off period under Article 58
of the Family Code has no bearing on the validity of the Compromise Agreement; that the
Compromise Agreement is not contrary to law, morals, good customs, public order, and public
policy; that this agreement may not be later disowned simply because of a change of mind; that the
presence of the Solicitor General or his deputy is not indispensable to the execution and validity of
the Compromise Agreement, since the purpose of his presence is to curtail any collusion between
the parties and to see to it that evidence is not fabricated, and, with this in mind, nothing in the
Compromise Agreement touches on the very merits of the case of declaration of nullity of marriage
for the court to be wary of any possible collusion; and, finally, that the Compromise Agreement is
merely an agreement between the parties to separate their conjugal properties partially without
prejudice to the outcome of the pending case of declaration of nullity of marriage.

Hence, herein Petition, purely on questions of law, raising the following issues:

I.

WHETHER OF NOT A SPOUSE CONVICTED OF EITHER CONCUBINAGE OR ADULTERY, CAN

STILL SHARE IN THE CONJUGAL PARTNERSHIP;

II

WHETHER OR NOT A COMPROMISE AGREEMENT ENTERED INTO BY SPOUSES, ONE OF

WHOM WAS CONVICTED OF ADULTERY, GIVING THE CONVICTED SPOUSE A SHARE IN THE
CONJUGAL PROPERTY, VALID AND LEGAL;

III

WHETHER OR NOT A JUDGMENT FOR ANNULMENT AND LEGAL SEPARATION IS A PRE-

REQUISITE BEFORE A SPOUSE CONVICTED OF EITHER CONCUBINAGE OR ADULTERY, BE
DISQUALIFIED AND PROHIBITED FROM SHARING IN THE CONJUGAL PROPERTY;

IV

WHETHER OR NOT THE DISQUALIFICATION OF A CONVICTED SPOUSE OF ADULTERY

FROM SHARING IN A CONJUGAL PROPERTY, CONSTITUTES CIVIL INTERDICTION.5

The petitioner argues that the Compromise Agreement should not have been given judicial
imprimatur since it is against law and public policy; that the proceedings where it was approved is
null and void, there being no appearance and participation of the Solicitor General or the Provincial
Prosecutor; that it was timely repudiated; and that the respondent, having been convicted of
adultery, is therefore disqualified from sharing in the conjugal property.

The Petition must fail.

The essential question is whether the partial voluntary separation of property made by the spouses
pending the petition for declaration of nullity of marriage is valid.

First. The petitioner contends that the Compromise Agreement is void because it circumvents the
law that prohibits the guilty spouse, who was convicted of either adultery or concubinage, from
sharing in the conjugal property. Since the respondent was convicted of adultery, the petitioner
argues that her share should be forfeited in favor of the common child under Articles 43(2)6 and
637 of the Family Code.

To the petitioner, it is the clear intention of the law to disqualify the spouse convicted of adultery from
sharing in the conjugal property; and because the Compromise Agreement is void, it never became
final and executory.

Moreover, the petitioner cites Article 20358 of the Civil Code and argues that since adultery is a
ground for legal separation, the Compromise Agreement is therefore void.
These arguments are specious. The foregoing provisions of the law are inapplicable to the instant
case.

Article 43 of the Family Code refers to Article 42, to wit:

Article 42. The subsequent marriage referred to in the preceding Article9 shall be automatically
terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a
judgment annulling the previous marriage or declaring it void ab initio.

A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil
registry of the residence of the parties to the subsequent marriage at the instance of any interested
person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact
of reappearance being judicially determined in case such fact is disputed.

where a subsequent marriage is terminated because of the reappearance of an absent spouse;

while Article 63 applies to the effects of a decree of legal separation. The present case involves a
proceeding where the nullity of the marriage is sought to be declared under the ground of
psychological capacity.

Article 2035 of the Civil Code is also clearly inapplicable. The Compromise Agreement partially
divided the properties of the conjugal partnership of gains between the parties and does not deal
with the validity of a marriage or legal separation. It is not among those that are expressly prohibited
by Article 2035.

Moreover, the contention that the Compromise Agreement is tantamount to a circumvention of the
law prohibiting the guilty spouse from sharing in the conjugal properties is misplaced. Existing law
and jurisprudence do not impose such disqualification.

Under Article 143 of the Family Code, separation of property may be effected voluntarily or for
sufficient cause, subject to judicial approval. The questioned Compromise Agreement which was
judicially approved is exactly such a separation of property allowed under the law. This conclusion
holds true even if the proceedings for the declaration of nullity of marriage was still pending.
However, the Court must stress that this voluntary separation of property is subject to the rights of all
creditors of the conjugal partnership of gains and other persons with pecuniary interest pursuant to
Article 136 of the Family Code.

Second. Petitioner’s claim that since the proceedings before the RTC were void in the absence of
the participation of the provincial prosecutor or solicitor, the voluntary separation made during the
pendency of the case is also void. The proceedings pertaining to the Compromise Agreement
involved the conjugal properties of the spouses. The settlement had no relation to the questions
surrounding the validity of their marriage. Nor did the settlement amount to a collusion between the
parties.

Article 48 of the Family Code states:

Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order
the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to
prevent collusion between the parties and to take care that the evidence is not fabricated or
suppressed. (Emphasis supplied)

Section 3(e) of Rule 9 of the 1997 Rules of Court provides:

SEC. 3. Default; declaration of.- x x x x

xxxx

(e) Where no defaults allowed.— If the defending party in action for annulment or declaration of
nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting
attorney to investigate whether or not a collusion between the parties exists if there is no collusion,
to intervene for the State in order to see to it that the evidence submitted is not fabricated.
(Emphasis supplied

Truly, the purpose of the active participation of the Public Prosecutor or the Solicitor General is to
ensure that the interest of the State is represented and protected in proceedings for annulment and
declaration of nullity of marriages by preventing collusion between the parties, or the fabrication or
suppression of evidence.10 While the appearances of the Solicitor General and/or the Public
Prosecutor are mandatory, the failure of the RTC to require their appearance does not per se nullify
the Compromise Agreement. This Court fully concurs with the findings of the CA:

x x x. It bears emphasizing that the intendment of the law in requiring the presence of the Solicitor
General and/or State prosecutor in all proceedings of legal separation and annulment or declaration
of nullity of marriage is to curtail or prevent any possibility of collusion between the parties and to
see to it that their evidence respecting the case is not fabricated. In the instant case, there is no
exigency for the presence of the Solicitor General and/or the State prosecutor because as already
stated, nothing in the subject compromise agreement touched into the very merits of the case of
declaration of nullity of marriage for the court to be wary of any possible collusion between the
parties. At the risk of being repetiti[ve], the compromise agreement pertains merely to an agreement
between the petitioner and the private respondent to separate their conjugal properties partially
without prejudice to the outcome of the pending case of declaration of nullity of marriage.11

Third. The conviction of adultery does not carry the accessory of civil interdiction. Article 34 of the
Revised Penal Code provides for the consequences of civil interdiction:

Art. 34. Civil Interdiction. – Civil interdiction shall deprive the offender during the time of his sentence
of the rights of parental authority, or guardianship, either as to the person or property of any ward, of
marital authority, of the right to manage his property and of the right to dispose of such property by
any act or any conveyance inter vivos.

Under Article 333 of the same Code, the penalty for adultery is prision correccional in its medium
and maximum periods. Article 333 should be read with Article 43 of the same Code. The latter
provides:

Art. 43. Prision correccional – Its accessory penalties. – The penalty of prision correccional shall
carry with it that of suspension from public office, from the right to follow a profession or calling, and
that of perpetual special disqualification from the right of suffrage, if the duration of said
imprisonment shall exceed eighteen months. The offender shall suffer the disqualification provided in
this article although pardoned as to the principal penalty, unless the same shall have been expressly
remitted in the pardon.

It is clear, therefore, and as correctly held by the CA, that the crime of adultery does not carry the
accessory penalty of civil interdiction which deprives the person of the rights to manage her property
and to dispose of such property inter vivos.
Fourth. Neither could it be said that the petitioner was not intelligently and judiciously informed of the
consequential effects of the compromise agreement, and that, on this basis, he may repudiate the
Compromise Agreement. The argument of the petitioner that he was not duly informed by his
previous counsel about the legal effects of the voluntary settlement is not convincing. Mistake or
vitiation of consent, as now claimed by the petitioner as his basis for repudiating the settlement,
could hardly be said to be evident. In Salonga v. Court of Appeals,12 this Court held:

[I]t is well-settled that the negligence of counsel binds the client. This is based on the rule that any
act performed by a lawyer within the scope of his general or implied authority is regarded as an act
of his client. Consequently, the mistake or negligence of petitioners' counsel may result in the
rendition of an unfavorable judgment against them.

Exceptions to the foregoing have been recognized by the Court in cases where reckless or gross
negligence of counsel deprives the client of due process of law, or when its application "results in the
outright deprivation of one's property through a technicality." x x x x13

None of these exceptions has been sufficiently shown in the present case.

WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals is AFFIRMED with
MODIFICATION that the subject Compromise Agreement is VALID without prejudice to the rights of
all creditors and other persons with pecuniary interest in the properties of the conjugal partnership of
gains.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO

SECOND DIVISION

G.R. No. 191425 September 7, 2011

ATILANO O. NOLLORA, JR., Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

CARPIO, J.:

The Case
G.R. No. 191425 is a petition for review1 assailing the Decision2 promulgated on 30 September 2009
as well as the Resolution3 promulgated on 23 February 2010 by the Court of Appeals (appellate
court) in CA-G.R. CR No. 31538. The appellate court affirmed the 19 November 2007 Decision4 of
Branch 215 of the Regional Trial Court of Quezon City (trial court) in Criminal Case No. Q-04-
129031.

The trial court found accused Atilano O. Nollora, Jr. (Nollora) guilty of bigamy under Article 349 of
the Revised Penal Code and sentenced him to suffer imprisonment. Co-accused Rowena Geraldino
(Geraldino) was acquitted for the prosecution’s failure to prove her guilt beyond reasonable doubt.

The Facts

The appellate court recited the facts as follows:

On August 24, 2004, Assistant City Prosecutor Raymond Jonathan B. Lledo filed an Information
against Atilano O. Nollora, Jr. ("Nollora") and Rowena P. Geraldino ("Geraldino") for the crime of
Bigamy. The accusatory portion of the Information reads:

"That on or about the 8th day of December 2001 in Quezon City, Philippines, the above-named
accused ATILANO O. NOLLORA, JR., being then legally married to one JESUSA PINAT NOLLORA,
and as said marriage has not been legally dissolved and still subsisting, did then and there willfully,
unlawfully and feloniously contract a subsequent or second marriage with her [sic] co-accused
ROWENA P. GERALDINO, who knowingly consented and agreed to be married to her co-accused
ATILANO O. NOLLORA, JR. knowing him to be a married man, to the damage and prejudice of the
said offended party JESUSA PINAT NOLLORA."

Upon his arraignment on April 18, 2005, accused Nollora assisted by counsel, refused to enter his
plea. Hence, a plea of not guilty was entered by the Court for him. Accused Geraldino, on the other
hand, entered a plea of not guilty when arraigned on June 14, 2005. On even date, pre-trial
conference was held and both the prosecution and defense entered the following stipulation of facts:

"1. the validity of the first marriage between Atilano O. Nollora, Jr. and Jesusa Pinat
Nollora solemnized on April 6, 1999 at Sapang Palay, San Jose del Monte;

2. that Atilano O. Nollora, Jr. contracted the second marriage with Rowena P.
Geraldino on December 8, 2001 in Quezon City;

3. that in the Counter-Affidavit of Atilano O. Nollora, Jr., he admitted that he

contracted the second marriage to Rowena P. Geraldino;

4. that Rowena P. Geraldino attached to her Counter-Affidavit the Certificate of

Marriage with Atilano O. Nollora, Jr. dated December 8, 2001;

5. the fact of marriage of Rowena P. Geraldino with Atilano O. Nollora, Jr. as

admitted in her Counter-Affidavit."

The only issue thus proffered by the prosecution for the RTC’s resolution is whether or not the
second marriage is bigamous. Afterwards, pre-trial conference was terminated and the case was set
for initial hearing. Thereafter, trial ensued.

Evidence for the Prosecution

As culled from the herein assailed Decision, the respective testimonies of prosecution witnesses
were as follows:

"xxx (W)itness Jesusa Pinat Nollora xxx testified that she and accused Atilano O. Nollora, Jr. met in
Saudi Arabia while she was working there as a Staff Midwife in King Abdulah Naval Base Hospital.
Atilano O. Nollora, Jr. courted her and on April 6, 1999, they got married at the [IE]MELIF Chruch
[sic] in Sapang Palay, San Jose del Monte, Bulacan (Exhibit ‘A’). While working in said hospital, she
heard rumors that her husband has another wife and because of anxiety and emotional stress, she
left Saudi Arabia and returned to the Philippines (TSN, October 4, 2005, page 10). Upon arrival in
the Philippines, the private complainant learned that indeed, Atilano O. Nollora, Jr. contracted a
second marriage with co-accused Rowena P. Geraldino on December 8, 2001 (Exhibit ‘B’) when she
secured a certification as to the civil status of Atilano O. Nollora, Jr. (Exhibit ‘C’) from the National
Statistics Office (NSO) sometime in November 2003.

Upon learning this information, the private complainant confronted Rowena P. Geraldino at the
latter’s workplace in CBW, FTI, Taguig and asked her if she knew of the first marriage between
complainant and Atilano O. Nollora, Jr. to which Rowena P. Geraldino allegedly affirmed and despite
this knowledge, she allegedly still married Atilano O. Nollora, Jr. because she loves him so much
and because they were neighbors and childhood friends. Private complainant also knew that
Rowena P. Geraldino knew of her marriage with Atilano O. Nollora, Jr., because when she (private
complainant) was brought by Atilano O. Nollora, Jr. at the latter’s residence in Taguig, Metro Manila
and introduced her to Atilano O. Nollora, Jr.’s parents, Rowena P. Geraldino was there in the house
together with a friend and she heard everything that they were talking about.

Because of this case, private complainant was not able to return to Saudi Arabia to work as a Staff
Midwife thereby losing income opportunity in the amount of ₱34,000.00 a month, more or less.
When asked about the moral damages she suffered, she declared that what happened to her was a
tragedy and she had entertained [thoughts] of committing suicide. She added that because of what
happened to her, her mother died and she almost got raped when Atilano O. Nollora, Jr. left her
alone in their residence in Saudi Arabia. However, she declared that money is not enough to
assuage her sufferings. Instead, she just asked for the return of her money in the amount of
₱50,000.00 (TSN, July 26, 2005, pages 4-14).

Prosecution witness Ruth Santos testified that she knew of the marriage between the private
complainant and Atilano O. Nollora, Jr., because she was one of the sponsors in said wedding.
Sometime in November 2003, she was asked by the private complainant to accompany the latter to
the workplace of Rowena P. Geraldino in FTI, Taguig, Metro Manila. She declared that the private
complainant and Rowena P. Geraldino had a confrontation and she heard that Rowena P. Geraldino
admitted that she (Rowena) knew of the first marriage of Atilano O. Nollora, Jr. and the private
complainant but she still went on to marry Atilano O. Nollora, Jr. because she loves him very much
(TSN, October 24, 2005, pages 3-5).

Evidence for the Defense

The defense’s version of facts, as summarized in the herein assailed Decision, is as follows:

"Accused Atilano O. Nollora, Jr. admitted having contracted two (2) marriages, the first with private
complainant Jesusa Pinat and the second with Rowena P. Geraldino. He, however, claimed that he
was a Muslim convert way back on January 10, 1992, even before he contracted the first marriage
with the private complainant. As a [M]uslim convert, he is allegedly entitled to marry four (4) wives as
allowed under the Muslim or Islam belief.
To prove that he is a Muslim convert even prior to his marriage to the private complainant, Atilano O.
Nollora, Jr. presented a Certificate of Conversion dated August 2, 2004 issued by one Hadji Abdul
Kajar Madueño and approved by one Khad Ibrahim A. Alyamin wherein it is stated that Atilano O.
Nollora, Jr. allegedly converted as a Muslim since January 19, 1992 (Exhibit ‘2,’ ‘3’ and ‘4’). Aside
from said certificate, he also presented a Pledge of Conversion dated January 10, 1992 issued by
the same Hadji Abdul Kajar Madueño and approved by one Khad Ibrahim A. Alyamin (Exhibit ‘7’).

He claimed that the private complaint knew that he was a Muslim convert prior to their marriage
because she [sic] told this fact when he was courting her in Saudi Arabia and the reason why said
private complainant filed the instant case was due to hatred having learned of his second marriage
with Rowena P. Geraldino. She [sic] further testified that Rowena P. Geraldino was not aware of his
first marriage with the private complainant and he did not tell her this fact because Rowena P.
Geraldino is a Catholic and he does not want to lose her if she learns of his first marriage.

He explained that in his Marriage Contract with Jesusa Pinat, it is indicated that he was a ‘Catholic
Pentecostal’ but that he was not aware why it was placed as such on said contract. In his Marriage
Contract with Rowena P. Geraldino, the religion ‘Catholic’ was also indicated because he was
keeping as a secret his being a Muslim since the society does not approve of marrying a Muslim. He
also indicated that he was ‘single’ despite his first marriage to keep said first marriage a secret (TSN,
January 30, 2006, pages 2-13).

Defense witness Hadji Abdul Qasar Madueño testified that he is the founder and president of Balik
Islam Tableegh Foundation of the Philippines and as such president, he has the power and authority
to convert any applicant to the Muslim religion. He alleged that sometime in 1992, he met accused
Atilano O. Nollora, Jr. in Mabini (Manila) who was then going abroad. Atilano O. Nollora, Jr. applied
to become a Muslim (Exhibit ‘14’) and after receiving the application, said accused was indoctrinated
regarding his obligations as a Muslim. On January 10, 1992, Atilano O. Nollora, Jr. embraced the
Muslim faith. He was then directed to report every Sunday to monitor his development.

In the year 2004, Atilano O. Nollora, Jr. visited him and asked for a certification because of the filing
of the instant case. On October 2, 2004, he issued a Certificate of Conversion wherein it is stated
that Atilano O. Nollora, Jr. is a Muslim convert since January 10, 1992. Apart from the above-
mentioned document, their ‘Imam’ also issued a Pledge of Conversion (Exhibit ‘7’). He declared that
a Muslim convert could marry more than one according to the Holy Koran. However, before marrying
his second, third and fourth wives, it is required that the consent of the first Muslim wife be secured.
Thus, if the first wife is not a Muslim, there is no necessity to secure her consent (TSN, October 9,
2006, pages 2-12).

During his cross-examinations, he declared that if a Muslim convert gets married not in accordance
with the Muslim faith, the same is contrary to the teachings of the Muslim faith. A Muslim also can
marry up to four times but he should be able to treat them equally. He claimed that he was not aware
of the first marriage but was aware of the second. Since his second marriage with Rowena P.
Geraldino was not in accordance with the Muslim faith, he advised Atilano O. Nollora, Jr. to re-marry
Rowena P. Geraldino in accordance with Muslim marriage celebration, otherwise, he will not be
considered as a true Muslim (TSN, June 25, 2007, pages 3-7).

Accused Rowena P. Geraldino alleged that she was only a victim in this incident of bigamous
marriage. She claimed that she does not know the private complainant Jesusa Pinat Nollora and
only came to know her when this case was filed. She insists that she is the one lawfully married to
Atilano O. Nollora, Jr., having been married to the latter since December 8, 2001. Upon learning that
Atilano O. Nollora, Jr. contracted a first marriage with the private complainant, she confronted the
former who admitted the said marriage. Prior to their marriage, she asked Atilano O. Nollora, Jr. if he
was single and the latter responded that he was single. She also knew that her husband was a
Catholic prior to their marriage but after she learned of the first marriage of her husband, she learned
that he is a Muslim convert. She also claimed that after learning that her husband was a Muslim
convert, she and Atilano O. Nollora, Jr., also got married in accordance with the Muslim rites. She
also belied the allegations of the private complainant that she was sought by the private complainant
and that they had a confrontation where she admitted that she knew that Atilano O. Nollora, Jr. was
married to the private complainant and despite this knowledge, she went on to marry him because
she loved him very much. She insisted that she only came to know the private complainant when
she (private complainant) filed this case (TSN, August 14, 2007, pages 2-8)."5

The Trial Court’s Ruling

In its Decision6 dated 19 November 2007, the trial court convicted Nollora and acquitted Geraldino.

The trial court stated that there are only two exceptions to prosecution for bigamy: Article 417 of the
Family Code, or Executive Order No. 209, and Article 1808 of the Code of Muslim Personal Laws of
the Philippines, or Presidential Decree No. 1083. The trial court also cited Article 27 of the Code of
Muslim Personal Laws of the Philippines, which provides the qualifications for allowing Muslim men
to have more than one wife: "[N]o Muslim male can have more than one wife unless he can deal with
them in equal companionship and just treatment as enjoined by Islamic Law and only in exceptional
cases."

In convicting Nollora, the trial court’s Decision further stated thus:

The principle in Islam is that monogamy is the general rule and polygamy is allowed only to meet
urgent needs. Only with the permission of the court can a Muslim be permitted to have a second wife
subject to certain requirements. This is because having plurality of wives is merely tolerated, not
encouraged, under certain circumstances (Muslim Law on Personal Status in the Philippines by
Amer M. Bara-acal and Abdulmajid J. Astir, 1998 First Edition, Pages 64-65). Arbitration is
necessary. Any Muslim husband desiring to contract subsequent marriages, before so doing, shall
notify the Shari’a Circuit Court of the place where his family resides. The clerk of court shall serve a
copy thereof to the wife or wives. Should any of them objects [sic]; an Agama Arbitration Council
shall be constituted. If said council fails to secure the wife’s consent to the proposed marriage, the
Court shall, subject to Article 27, decide whether on [sic] not to sustain her objection (Art. 162,
Muslim Personal Laws of the Philippines).

Accused Atilano Nollora, Jr., in marrying his second wife, co-accused Rowena P. Geraldino, did not
comply with the above-mentioned provision of the law. In fact, he did not even declare that he was a
Muslim convert in both marriages, indicating his criminal intent. In his converting to the Muslim faith,
said accused entertained the mistaken belief that he can just marry anybody again after marrying the
private complainant. What is clear, therefore, is [that] a Muslim is not given an unbridled right to just
marry anybody the second, third or fourth time. There are requirements that the Shari’a law imposes,
that is, he should have notified the Shari’a Court where his family resides so that copy of said notice
should be furnished to the first wife. The argument that notice to the first wife is not required since
she is not a Muslim is of no moment. This obligation to notify the said court rests upon accused
Atilano Nollora, Jr. It is not for him to interpret the Shari’a law. It is the Shari’a Court that has this
authority.

In an apparent attempt to escape criminal liability, the accused recelebrated their marriage in
accordance with the Muslim rites. However, this can no longer cure the criminal liability that has
already been violated.
The Court, however, finds criminal liability on the person of accused Atilano Nollora, Jr., only. There
is no sufficient evidence that would pin accused Rowena P. Geraldino down. The evidence
presented by the prosecution against her is the allegation that she knew of the first marriage
between private complainant and Atilano Nollora, Jr., is insufficient[,] being open to several
interpretations. Private complainant alleged that when she was brought by Atilano Nollora, Jr., to the
latter’s house in Taguig, Metro Manila, Rowena P. Geraldino was there standing near the door and
heard their conversation. From this incident, private complainant concluded that said Rowena P.
Geraldino was aware that she and Atilano Nollora, Jr., were married. This conclusion is obviously
misplaced since it could not be reasonably presumed that Rowena P. Geraldino understands what
was going on between her and Atilano Nollora, Jr. It is axiomatic that "(E)very circumstance favoring
accused’s innocence must be taken into account, proof against him must survive the test of reason
and the strongest suspicion must not be permitted to sway judgment" (People vs. Austria, 195 SCRA
700). This Court, therefore, has to acquit Rowena P. Geraldino for failure of the prosecution to prove
her guilt beyond reasonable doubt.

WHEREFORE, premises considered, judgment is hereby rendered, as follows:

a) Finding accused ATILANO O. NOLLORA, JR. guilty beyond reasonable doubt of

the crime of Bigamy punishable under Article 349 of the Revised Penal Code. This
court hereby renders judgment imposing upon him a prison term of two (2) years,
four (4) months and one (1) day of prision correccional, as minimum of his
indeterminate sentence, to eight (8) years and one (1) day of prision mayor, as
maximum, plus accessory penalties provided by law.

b) Acquitting accused ROWENA P. GERALDINO of the crime of Bigamy for failure of

the prosecution to prove her guilt beyond reasonable doubt.

Costs against accused Atilano O. Nollora, Jr.

SO ORDERED.9

Nollora filed a notice of appeal and moved for the allowance of his temporary liberty under the same
bail bond pending appeal. The trial court granted Nollora’s motion.

Nollora filed a brief with the appellate court and assigned only one error of the trial court:

The trial court gravely erred in finding the accused-appellant guilty of the crime charged despite the
prosecution’s failure to establish his guilt beyond reasonable doubt.10

The Appellate Court’s Ruling

On 30 September 2009, the appellate court dismissed Nollora’s appeal and affirmed the trial court’s
decision.11

The appellate court rejected Nollora’s defense that his second marriage to Geraldino was in lawful
exercise of his Islamic religion and was allowed by the Qur’an. The appellate court denied Nollora’s
invocation of his religious beliefs and practices to the prejudice of the non-Muslim women who
married him pursuant to Philippine civil laws. Nollora’s two marriages were not conducted in
1avvphi1

accordance with the Code of Muslim Personal Laws, hence the Family Code of the Philippines
should apply. Nollora’s claim of religious freedom will not immobilize the State and render it impotent
in protecting the general welfare.
In a Resolution12 dated 23 February 2010, the appellate court denied Nollora’s motion for
reconsideration. The allegations in the motion for reconsideration were a mere rehash of Nollora’s
earlier arguments, and there was no reason for the appellate court to modify its 30 September 2009
Decision.

Nollora filed the present petition for review before this Court on 6 April 2010.

The Issue

The issue in this case is whether Nollora is guilty beyond reasonable doubt of the crime of bigamy.

The Court’s Ruling

Nollora’s petition has no merit. We affirm the rulings of the appellate court and of the trial court.

Elements of Bigamy

Article 349 of the Revised Penal Code provides:

Art. 349. Bigamy. ‒ The penalty of prision mayor shall be imposed upon any person who shall
contract a second or subsequent marriage before the former marriage has been legally dissolved, or
before the absent spouse has been declared presumptively dead by means of a judgment rendered
in the proper proceedings.

The elements of the crime of bigamy are:

1. That the offender has been legally married.

2. That the marriage has not been legally dissolved or, in case his or her spouse is
absent, the absent spouse could not yet be presumed dead according to the Civil
Code.

3. That he contracts a second or subsequent marriage.

4. That the second or subsequent marriage has all the essential requisites for
validity.13

The circumstances in the present case satisfy all the elements of bigamy. (1) Nollora is legally
married to Pinat;14(2) Nollora and Pinat’s marriage has not been legally dissolved prior to the date of
the second marriage; (3) Nollora admitted the existence of his second marriage to Geraldino;15 and
(4) Nollora and Geraldino’s marriage has all the essential requisites for validity except for the lack of
capacity of Nollora due to his prior marriage.16

The marriage certificate17 of Nollora and Pinat’s marriage states that Nollora and Pinat were married
at Sapang Palay IEMELIF Church, Sapang Palay, San Jose del Monte, Bulacan on 6 April 1999.
Rev. Jonathan De Mesa, Minister of the IEMELIF Church officiated the ceremony. The marriage
certificate18 of Nollora and Geraldino’s marriage states that Nollora and Geraldino were married at
Max’s Restaurant, Quezon Avenue, Quezon City, Metro Manila on 8 December 2001. Rev. Honorato
D. Santos officiated the ceremony.

A certification dated 4 November 2003 from the Office of the Civil Registrar General reads:
We certify that ATILANO JR O. NOLLORA who is alleged to have been born on February 22, 1968
from ATILANO M. NOLLORA SR and FLAVIANA OCLARIT, appears in our National Indices of
Marriage for Groom for the years 1973 to 2002 with the following information:

Date of Marriage Place of Marriage

a) April 06, 1999 b) SAN JOSE DEL MONTE, BULACAN

a) December 08, 2001 b) QUEZON CITY, METRO MANILA (2nd District)19

Before the trial and appellate courts, Nollora put up his Muslim religion as his sole defense. He
alleged that his religion allows him to marry more than once. Granting arguendo that Nollora is
indeed of Muslim faith at the time of celebration of both marriages,20 Nollora cannot deny that both
marriage ceremonies were not conducted in accordance with the Code of Muslim Personal Laws, or
Presidential Decree No. 1083. The applicable Articles in the Code of Muslim Personal Laws read:

Art. 14. Nature. - Marriage is not only a civil contract but a civil institution. Its nature, consequences
and incidents are governed by this Code and the Shari’a and not subject to stipulation, except that
the marriage settlements to a certain extent fix the property relations of the spouses.

Art. 15. Essential Requisites. - No marriage contract shall be perfected unless the following essential
requisites are complied with:

(a) Legal capacity of the contracting parties;

(b) Mutual consent of the parties freely given;

(c) Offer (ijab) and acceptance (qabul) duly witnessed by at least two competent persons
after the proper guardian in marriage (wali) has given his consent; and

(d) Stipulation of the customary dower (mahr) duly witnessed by two competent persons.

Art. 16. Capacity to contract marriage. - (1) Any Muslim male at least fifteen years of age and any
Muslim female of the age of puberty or upwards and not suffering from any impediment under the
provisions of this Code may contract marriage. A female is presumed to have attained puberty upon
reaching the age of fifteen.

x x x.

Art. 17. Marriage Ceremony. - No particular form of marriage ceremony is required but the ijab and
the qabul in marriage shall be declared publicly in the presence of the person solemnizing the
marriage and the two competent witnesses. The declaration shall be set forth in an instrument in
triplicate, signed or marked by the contracting parties and said witnesses, and attested by the
person solemnizing the marriage. One copy shall be given to the contracting parties and another
sent to the Circuit Registrar by the solemnizing officer who shall keep the third.

Art. 18. Authority to solemnize marriage. - Marriage maybe solemnized:

(a) By the proper wali by the woman to be wedded;

 (b) Upon the authority of the proper wali, by any person who is competent under Muslim law
to solemnize marriage; or

(c) By the judge of the Shari’a District Court or Shari’a Circuit Court or any person
designated by the judge, should the proper wali refuse without justifiable reason, to authorize
the solemnization.

Art. 19. Place of solemnization. - Marriage shall be solemnized publicly in any mosque, office of
the Shari’a judge, office of the Circuit Registrar, residence of the bride or her wali, or at any other
suitable place agreed upon by the parties.

Art. 20. Specification of dower. - The amount or value of dower may be fixed by the contracting
parties (mahr-musamma) before, during or after the celebration of marriage. If the amount or the
value thereof has not been so fixed, a proper dower (mahr-mithl) shall, upon petition of the wife, be
determined by the court according to the social standing of the parties.

Indeed, Article 13(2) of the Code of Muslim Personal Laws states that "[i]n case of a marriage
between a Muslim and a non-Muslim, solemnized not in accordance with Muslim law or this
Code, the [Family Code of the Philippines, or Executive Order No. 209, in lieu of the Civil Code
of the Philippines] shall apply." Nollora’s religious affiliation is not an issue here. Neither is the claim
that Nollora’s marriages were solemnized according to Muslim law. Thus, regardless of his
professed religion, Nollora cannot claim exemption from liability for the crime of bigamy.21

Nollora asserted in his marriage certificate with Geraldino that his civil status is "single." Moreover,
both of Nollora’s marriage contracts do not state that he is a Muslim. Although the truth or falsehood
of the declaration of one’s religion in the marriage certificate is not an essential requirement for
marriage, such omissions are sufficient proofs of Nollora’s liability for bigamy. Nollora’s false
declaration about his civil status is thus further compounded by these omissions.

[ATTY. CALDINO:]

Q: In your marriage contract, Mr. Witness, with Jesusa Pinat, you indicated here as your religion,
Catholic Pentecostal, and you were saying that since January 10, 1992, you are already a [M]uslim
convert. . . you said, Mr. Witness, that you are already a [M]uslim convert since January 10, 1992.
However, in your marriage contract with Jesusa Pinat, there is no indication here that you have
indicated your religion. Will you please go over your marriage contract?

[NOLLORA:]

A: When we got married, they just placed there Catholic but I didn’t know why they did not place any
Catholic there.

xxx

Q: Now, Mr. Witness, I would like to call your attention with respect to your marriage contract
with your co-accused in this case, Rowena Geraldino, x x x will you please tell us, Mr.
Witness, considering that you said that you are already a [M]uslim convert on January 10,
1992, why in the marriage contract with Rowena Geraldino, you indicated there your religion
as Catholic, Mr. Witness?
A: Since I was a former Catholic and since I was then keeping, I was keeping it as a secret my
being my Balik-Islam, that’s why I placed there Catholic since I know that the society doesn’t
approve a Catholic to marry another, that’s why I placed there Catholic as my religion, sir.

Q: How about under the column, "civil status," why did you indicate there that you’re single,
Mr. Witness?

A: I also kept it as a secret that I was married, earlier married.22 (Emphasis supplied)

xxx

[PROSECUTOR TAYLOR:]

Q: Would you die for your new religion, Mr. Nollora?

A: Yes, ma’am.

Q: If you would die for your new religion, why did you allow that your faith be indicated as Catholic
when in fact you were already as you alleged [M]uslim to be put in your marriage contract?

xxx

[A:] I don’t think there is anything wrong with it, I just signed it so we can get married under the
Catholic rights [sic] because after that we even got married under the [M]uslim rights [sic], your
Honor.

xxx

Q: Under your Muslim faith, if you marry a second wife, are you required under your faith to secure
the permission of your first wife to get married?

A: Yes, ma’am.

Q: Did you secure that permission from your first wife, Jesusa Nollora?

A: I was not able to ask any permission from her because she was very mad at me, at the start, she
was always very mad, ma’am.23

In his petition before this Court, Nollora casts doubt on the validity of his marriage to
Geraldino. Nollora may not impugn his marriage to Geraldino in order to extricate himself from
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criminal liability; otherwise, we would be opening the doors to allowing the solemnization of multiple
flawed marriage ceremonies. As we stated in Tenebro v. Court of Appeals:24

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 consequences is incurring criminal
liability for bigamy. To hold otherwise would render the State’s penal laws on bigamy completely
nugatory, and allow individuals to deliberately ensure that each marital contract be flawed in some
manner, and to thus escape the consequences of contracting multiple marriages, while beguiling
throngs of hapless women with the promise of futurity and commitment.
WHEREFORE, we DENY the petition. The Decision of the Court of Appeals in CA-G.R. CR No.
31538 promulgated on 30 September 2009 and the Resolution promulgated on 23 February 2010
are AFFIRMED. Petitioner Atilano O. Nollora, Jr. is guilty beyond reasonable doubt of Bigamy in
Criminal Case No. Q-04-129031 and is sentenced to suffer the penalty of imprisonment with a term
of two years, four months and one day of prision correccional as minimum to eight years and one
day of prision mayor as maximum of his indeterminate sentence, as well as the accessory penalties
provided by law.

Costs against petitioner Atilano O. Nollora, Jr.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR: