Article 41-42
their void marriage and such properties be placed under
G.R. No. 104818 September 17, 1993
ROBERTO DOMINGO, petitioner,
vs.
COURT OF APPEALS and DELIA SOLEDAD AVERA
represented by her Attorney-in-Fact MOISES R.
AVERA, respondents.
Jose P.O. Aliling IV for petitioner.
De Guzman, Meneses & Associates for private
respondent.
ROMERO, J.:
The instant petition seeks the reversal of respondent
court's ruling finding no grave abuse of discretion in the
lower court's order denying petitioner's motion to dismiss
the petition for declaration of nullity of marriage and
separation of property.
On May 29, 1991, private respondent Delia Soledad A.
Domingo filed a petition before the Regional Trial Court of
Pasig entitled "Declaration of Nullity of Marriage and
Separation of Property" against petitioner Roberto
Domingo. The petition which was docketed as Special
Proceedings No. 1989-J alleged among others that: they
were married on November 29, 1976 at the YMCA Youth
Center Bldg., as evidenced by a Marriage Contract
Registry No. 1277K-76 with Marriage License No.
4999036 issued at Carmona, Cavite; unknown to her, he
had a previous marriage with one Emerlina dela Paz on
April 25, 1969 which marriage is valid and still existing; she
came to know of the prior marriage only sometime in 1983
when Emerlina dela Paz sued them for bigamy; from
January 23 1979 up to the present, she has been working
in Saudi Arabia and she used to come to the Philippines
only when she would avail of the one-month annual
vacation leave granted by her foreign employer since 1983
up to the present, he has been unemployed and
completely dependent upon her for support and
subsistence; out of her personal earnings, she purchased
real and personal properties with a total amount of
approximately P350,000.00, which are under the
possession and administration of Roberto; sometime in
June 1989, while on her one-month vacation, she
discovered that he was cohabiting with another woman;
she further discovered that he had been disposing of some
of her properties without her knowledge or consent; she
confronted him about this and thereafter appointed her
brother Moises R. Avera as her attorney-in-fact to take
care of her properties; he failed and refused to turn over
the possession and administration of said properties to her
brother/attorney-in-fact; and he is not authorized to
administer and possess the same on account of the nullity
of their marriage. The petition prayed that a temporary
restraining order or a writ of preliminary injunction be
issued enjoining Roberto from exercising any act of
administration and ownership over said properties; their
marriage be declared null and void and of no force and
effect; and Delia Soledad be declared the sole and
exclusive owner of all properties acquired at the time of
the proper management and administration of the
attorney-in-fact.
Petitioner filed a Motion to Dismiss on the ground that the
petition stated no cause of action. The marriage being
void ab initio, the petition for the declaration of its nullity is,
therefore, superfluous and unnecessary. It added that
private respondent has no property which is in his
possession.
On August 20, 1991, Judge Maria Alicia M. Austria issued
an Order denying the motion to dismiss for lack of merit.
She explained:
Movant argues that a second marriage contracted after a
first marriage by a man with another woman is illegal and
void (citing the case of Yap v. Court of Appeals, 145 SCRA
229) and no judicial decree is necessary to establish the
invalidity of a void marriage (citing the cases of People v.
Aragon, 100 Phil. 1033; People v. Mendoza, 95 Phil. 845).
Indeed, under the Yap case there is no dispute that the
second marriage contracted by respondent with herein
petitioner after a first marriage with another woman is
illegal and void. However, as to whether or not the second
marriage should first be judicially declared a nullity is not
an issue in said case. In the case of Vda. de Consuegra
v. GSIS, the Supreme Court ruled in explicit terms, thus:
And with respect to the right of the second wife, this Court
observed that although the second marriage can be
presumed to be void ab initio as it was celebrated while
the first marriage was still subsisting, still there is need for
judicial declaration of its nullity. (37 SCRA 316, 326)
The above ruling which is of later vintage deviated from
the previous rulings of the Supreme Court in the aforecited
cases of Aragon and Mendoza.
Finally, the contention of respondent movant that
petitioner has no property in his possession is an issue
that may be determined only after trial on the merits. 1
A motion for reconsideration was filed stressing the
erroneous application of Vda. de Consuegra v. GSIS and 2
the absence of justiciable controversy as to the nullity of
the marriage. On September 11, 1991, Judge Austria
denied the motion for reconsideration and gave petitioner
fifteen (15) days from receipt within which to file his
answer.
Instead of filing the required answer, petitioner filed a
special civil action of certiorari and mandamus on the
ground that the lower court acted with grave abuse of
discretion amounting to lack of jurisdiction in denying the
motion to dismiss.
On February 7, 1992, the Court of Appeals dismissed the
3
petition. It explained that the case of Yap v. CA cited by
4
petitioner and that of Consuegra v. GSIS relied upon by
the lower court do not have relevance in the case at bar,
there being no identity of facts because these cases dealt
with the successional rights of the second wife while the
instant case prays for separation of property corollary with
the declaration of nullity of marriage. It observed that the
separation and subsequent distribution of the properties
acquired during the union can be had only upon proper
determination of the status of the marital relationship
between said parties, whether or not the validity of the first
marriage is denied by petitioner. Furthermore, in order to
avoid duplication and multiplicity of suits, the declaration of
nullity of marriage may be invoked in this proceeding
together with the partition and distribution of the properties
involved. Citing Articles 48, 50 and 52 of the Family Code,
it held that private respondent's prayer for declaration of
absolute nullity of their marriage may be raised together
with other incidents of their marriage such as the
separation of their properties. Lastly, it noted that since the
Court has jurisdiction, the alleged error in refusing to grant
the motion to dismiss is merely one of law for which the
remedy ordinarily would have been to file an answer,
proceed with the trial and in case of an adverse decision,
reiterate the issue on appeal. The motion for
reconsideration was subsequently denied for lack of merit. 5
Hence, this petition.
The two basic issues confronting the Court in the instant
case are the following.
First, whether or not a petition for judicial declaration of a
void marriage is necessary. If in the affirmative, whether
the same should be filed only for purposes of remarriage.
Second, whether or not SP No. 1989-J is the proper
remedy of private respondent to recover certain real and
personal properties allegedly belonging to her exclusively.
Petitioner, invoking the ruling in People
v. Aragon and People v. Mendoza, contends that SP. No.
6 7
1989-J for Declaration of Nullity of Marriage and
Separation of Property filed by private respondent must be
dismissed for being unnecessary and superfluous.
Furthermore, under his own interpretation of Article 40 of
the Family Code, he submits that a petition for declaration
of absolute nullity of marriage is required only for purposes
of remarriage. Since the petition in SP No. 1989-J contains
no allegation of private respondent's intention to remarry,
said petition should therefore, be dismissed.
On the other hand, private respondent insists on the
necessity of a judicial declaration of the nullity of their
marriage, not for purposes of remarriage, but in order to
provide a basis for the separation and distribution of the
properties acquired during coverture.
There is no question that the marriage of petitioner and
private respondent celebrated while the former's previous
marriage with one Emerlina de la Paz was still subsisting,
is bigamous. As such, it is from the beginning. Petitioner
8 marriage void.
himself does not dispute the absolute nullity of their
marriage. 9
The cases of People v. Aragon and People
v. Mendoza relied upon by petitioner are cases where the
Court had earlier ruled that no judicial decree is necessary
to establish the invalidity of a void, bigamous marriage. It
is noteworthy to observe that Justice Alex Reyes, however,
dissented on these occasions stating that:
Though the logician may say that where the former
marriage was void there would be nothing to dissolve, still
it is not for the spouses to judge whether that marriage
was void or not. That judgment is reserved to the
courts. . . . 10
This dissenting opinion was adopted as the majority
position in subsequent cases involving the same issue.
Thus, in Gomez v. Lipana, the Court abandoned its
11
earlier ruling in the Aragon and Mendoza cases. In
reversing the lower court's order forfeiting the husband's
share of the disputed property acquired during the second
marriage, the Court stated that "if the nullity, or annulment
of the marriage is the basis for the application of Article
1417, there is need for a judicial declaration thereof, which
of course contemplates an action for that purpose."
Citing Gomez v. Lipana, the Court subsequently held
in Vda. de Consuegra v. Government Service Insurance
System, that "although the second marriage can be
presumed to be void ab initio as it was celebrated while
the first marriage was still subsisting, still there is need for
judicial declaration of such nullity."
In Tolentino v. Paras, however, the Court turned around
12
and applied the Aragon and Mendoza ruling once again.
In granting the prayer of the first wife asking for a
declaration as the lawful surviving spouse and the
correction of the death certificate of her deceased
husband, it explained that "(t)he second marriage that he
contracted with private respondent during the lifetime of
his first spouse is null and void from the beginning and of
no force and effect. No judicial decree is necessary to
establish the invalidity of a void marriage."
However, in the more recent case of Wiegel
v. Sempio-Diy the Court reverted to the Consuegra case
13
and held that there was "no need of introducing evidence
about the existing prior marriage of her first husband at the
time they married each other, for then such a marriage
though void still needs according to this Court a judicial
declaration of such fact and for all legal intents and
purposes she would still be regarded as a married woman
at the time she contracted her marriage with respondent
Karl Heinz Wiegel."
Came the Family Code which settled once and for all the
conflicting jurisprudence on the matter. A declaration of
the absolute nullity of a marriage is now explicitly required
either as a cause of action or a ground for
defense. Where the absolute nullity of a previous
14
marriage is sought to be invoked for purposes of
contracting a second marriage, the sole basis acceptable
in law for said projected marriage be free from legal
infirmity is a final judgment declaring the previous
15
The Family Law Revision Committee and the Civil Code
Revision Committee which drafted what is now the
16
Family Code of the Philippines took the position that
parties to a marriage should not be allowed to assume that
their marriage is void even if such be the fact but must first
secure a judicial declaration of the nullity of their marriage
before they can be allowed to marry again. This is borne
out by the following minutes of the 152nd Joint Meeting of
the Civil Code and Family Law Committees where the
present Article 40, then Art. 39, was discussed.
B. Article 39. —
The absolute nullity of a marriage may be invoked only on
the basis of a final judgment declaring the marriage void,
except as provided in Article 41.
Justice Caguioa remarked that the above provision should
include not only void but also voidable marriages. He then
suggested that the above provision be modified as follows:
The validity of a marriage may be invoked only . . .
Justice Reyes (J.B.L. Reyes), however, proposed that
they say:
The validity or invalidity of a marriage may be invoked
only . . .
On the other hand, Justice Puno suggested that they say:
The invalidity of a marriage may be invoked only . . .
Justice Caguioa explained that his idea is that one cannot
determine for himself whether or not his marriage is valid
and that a court action is needed. Justice Puno
accordingly proposed that the provision be modified to
read:
The invalidity of a marriage may be invoked only on the
basis of a final judgment annulling the marriage or
declaring the marriage void, except as provided in Article
41.
Justice Caguioa remarked that in annulment, there is no
question. Justice Puno, however, pointed out that, even if
it is a judgment of annulment, they still have to produce the
judgment.
Justice Caguioa suggested that they say:
The invalidity of a marriage may be invoked only on the
basis of a final judgment declaring the marriage invalid,
except as provided in Article 41.
Justice Puno raised the question: When a marriage is
declared invalid, does it include the annulment of a
marriage and the declaration that the marriage is void?
Justice Caguioa replied in the affirmative. Dean Gupit
added that in some judgments, even if the marriage is
annulled, it is declared void. Justice Puno suggested that
this matter be made clear in the provision.
Prof. Baviera remarked that the original idea in the
provision is to require first a judicial declaration of a void
marriage and not annullable marriages, with which the
other members concurred. Judge Diy added that
annullable marriages are presumed valid until a direct
action is filed to annul it, which the other members affirmed.
Justice Puno remarked that if this is so, then the phrase
"absolute nullity" can stand since it might result in
confusion if they change the phrase to "invalidity" if what
they are referring to in the provision is the declaration that
the marriage is void.
Prof. Bautista commented that they will be doing away
with collateral defense as well as collateral attack. Justice
Caguioa explained that the idea in the provision is that
there should be a final judgment declaring the marriage
void and a party should not declare for himself whether or
not the marriage is void, while the other members affirmed.
Justice Caguioa added that they are, therefore, trying to
avoid a collateral attack on that point. Prof. Bautista stated
that there are actions which are brought on the
assumption that the marriage is valid. He then asked: Are
they depriving one of the right to raise the defense that he
has no liability because the basis of the liability is void?
Prof. Bautista added that they cannot say that there will be
no judgment on the validity or invalidity of the marriage
because it will be taken up in the same proceeding. It will
not be a unilateral declaration that, it is a void
marriage. Justice Caguioa saw the point of Prof. Bautista
and suggested that they limit the provision to remarriage.
He then proposed that Article 39 be reworded as follows:
The absolute nullity of a marriage for purposes of
remarriage may be invoked only on the basis of final
judgment . . .
Justice Puno suggested that the above be modified as
follows:
The absolute nullity of a previous marriage may be
invoked for purposes of establishing the validity of a
subsequent marriage only on the basis of a final judgment
declaring such previous marriage void, except as provided
in Article 41.
Justice Puno later modified the above as follows:
For the purpose of establishing the validity of a
subsequent marriage, the absolute nullity of a previous
marriage may only be invoked on the basis of a final
judgment declaring such nullity, except as provided in
Article 41.
Justice Caguioa commented that the above provision is
too broad and will not solve the objection of Prof. Bautista.
He proposed that they say:
For the purpose of entering into a subsequent marriage,
the absolute nullity of a previous marriage may only be
invoked on the basis of a final judgment declaring such
nullity, except as provided in Article 41.
Justice Caguioa explained that the idea in the above
provision is that if one enters into a subsequent marriage
without obtaining a final judgment declaring the nullity of a
previous marriage, said subsequent marriage is void ab
initio.
After further deliberation, Justice Puno suggested that
they go back to the original wording of the provision as
follows:
The absolute nullity of a previous marriage may be
invoked for purposes of remarriage only on the basis of a
final judgment declaring such previous marriage void,
except as provided in Article 41. 17
In fact, the requirement for a declaration of absolute nullity
of a marriage is also for the protection of the spouse who,
believing that his or her marriage is illegal and void,
marries again. With the judicial declaration of the nullity of
his or her first marriage, the person who marries again
cannot be charged with bigamy. 18
Just over a year ago, the Court made the pronouncement
that there is a necessity for a declaration of absolute nullity
of a prior subsisting marriage before contracting another in
the recent case of Terre v. Terre. The Court, in turning
19
down the defense of respondent Terre who was charged
with grossly immoral conduct consisting of contracting a
second marriage and living with another woman other than
complainant while his prior marriage with the latter
remained subsisting, said that "for purposes of
determining whether a person is legally free to contract a
second marriage, a judicial declaration that the first
marriage was null and void ab initio is essential."
As regards the necessity for a judicial declaration of
absolute nullity of marriage, petitioner submits that the
same can be maintained only if it is for the purpose of
remarriage. Failure to allege this purpose, according to
petitioner's theory, will warrant dismissal of the same.
Article 40 of the Family Code provides:
Art. 40. The absolute nullity of a previous marriage may be
invoked for purposes of remarriage on the basis solely of a
final judgment declaring such previous marriage void. (n)
Crucial to the proper interpretation of Article 40 is the
position in the provision of the word "solely." As it is placed,
the same shows that it is meant to qualify "final judgment
declaring such previous marriage void." Realizing the
need for careful craftsmanship in conveying the precise
intent of the Committee members, the provision in
question, as it finally emerged, did not state "The absolute
nullity of a previous marriage may be invoked solely for
purposes of remarriage . . .," in which case "solely" would
clearly qualify the phrase "for purposes of remarriage."
Had the phraseology been such, the interpretation of
petitioner would have been correct and, that is, that the
absolute nullity of a previous marriage may be
invoked solely for purposes of remarriage, thus rendering
irrelevant the clause "on the basis solely of a final
judgment declaring such previous marriage void."
That Article 40 as finally formulated included the significant
clause denotes that such final judgment declaring the
previous marriage void need not be obtained only for
purposes of remarriage. Undoubtedly, one can conceive of
other instances where a party might well invoke the
absolute nullity of a previous marriage for purposes other
than remarriage, such as in case of an action for
liquidation, partition, distribution and separation of property
between the erstwhile spouses, as well as an action for the
custody and support of their common children and the
delivery of the latters' presumptive legitimes. In such cases,
evidence needs must be adduced, testimonial or
documentary, to prove the existence of grounds rendering
such a previous marriage an absolute nullity. These need
not be limited solely to an earlier final judgment of a court
declaring such previous marriage void. Hence, in the
instance where a party who has previously contracted a
marriage which remains subsisting desires to enter into
another marriage which is legally unassailable, he is
required by law to prove that the previous one was an
absolute nullity. But this he may do on the basis solely of a
final judgment declaring such previous marriage void.
This leads us to the question: Why the distinction? In other
words, for purposes of remarriage, why should the only
legally acceptable basis for declaring a previous marriage
an absolute nullity be a final judgment declaring such
previous marriage void? Whereas, for purposes other than
remarriage, other evidence is acceptable?
Marriage, a sacrosanct institution, declared by the
Constitution as an "inviolable social institution, is the
foundation of the family;" as such, it "shall be protected by
the State." In more explicit terms, the Family Code
20
characterizes it as "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." So crucial are marriage and the family to the
21
stability and peace of the nation that their "nature,
consequences, and incidents are governed by law and not
subject to stipulation . . ." As a matter of policy, therefore,
22
the nullification of a marriage for the purpose of
contracting another cannot be accomplished merely on the
basis of the perception of both parties or of one that their
union is so defective with respect to the essential
requisites of a contract of marriage as to render it void ipso
jure and with no legal effect — and nothing more. Were
this so, this inviolable social institution would be reduced
to a mockery and would rest on very shaky foundations
indeed. And the grounds for nullifying marriage would be
as diverse and far-ranging as human ingenuity and fancy
could conceive. For such a social significant institution, an
official state pronouncement through the courts, and
nothing less, will satisfy the exacting norms of society. Not
only would such an open and public declaration by the
courts definitively confirm the nullity of the contract of
marriage, but the same would be easily verifiable through
records accessible to everyone.
That the law seeks to ensure that a prior marriage is no
impediment to a second sought to be contracted by one of
the parties may be gleaned from new information required
in the Family Code to be included in the application for a
marriage license, viz, "If previously married, how, when
and where the previous marriage was dissolved and
annulled." 23
Reverting to the case before us, petitioner's interpretation
of Art. 40 of the Family Code is, undoubtedly, quite
restrictive. Thus, his position that private respondent's
failure to state in the petition that the same is filed to
enable her to remarry will result in the dismissal of SP No.
1989-J is untenable. His misconstruction of Art. 40
resulting from the misplaced emphasis on the term "solely"
was in fact anticipated by the members of the Committee.
Dean Gupit commented the word "only" may be
misconstrued to refer to "for purposes of remarriage."
Judge Diy stated that "only" refers to "final
judgment." Justice Puno suggested that they say "on the
basis only of a final judgment." Prof. Baviera suggested
that they use the legal term "solely" instead of "only,"
which the Committee approved. (Emphasis supplied)
24
Pursuing his previous argument that the declaration for
absolute nullity of marriage is unnecessary, petitioner
suggests that private respondent should have filed an
ordinary civil action for the recovery of the properties
alleged to have been acquired during their union. In such
an eventuality, the lower court would not be acting as a
mere special court but would be clothed with jurisdiction to
rule on the issues of possession and ownership. In
addition, he pointed out that there is actually nothing to
separate or partition as the petition admits that all the
properties were acquired with private respondent's money.
The Court of Appeals disregarded this argument and
concluded that "the prayer for declaration of absolute
nullity of marriage may be raised together with the other
incident of their marriage such as the separation of their
properties."
When a marriage is declared void ab initio, the law states
that the final judgment therein shall provide for "the
liquidation, partition and distribution of the properties of the
spouses, the custody and support of the common children,
and the delivery of their presumptive legitimes, unless
such matters had been adjudicated in previous judicial
proceedings." Other specific effects flowing therefrom, in
25
proper cases, are the following:
Art. 43. xxx xxx xxx
(2) The absolute community of property or the conjugal
partnership, as the case may be, shall be dissolved and
liquidated, but if either spouse contracted said marriage in
bad faith, his or her share of the net profits of the
community property or conjugal partnership property shall
be forfeited in favor of the common children or, if there are
none, the children of the guilty spouse by a previous
marriage or, in default of children, the innocent spouse;
(3) Donations by reason of marriage shall remain valid,
except that if the donee contracted the marriage in bad
faith, such donations made to said donee are revoked by
operation of law;
(4) The innocent spouse may revoke the designation of
the other spouse who acted in bad faith as a beneficiary in
any insurance policy, even if such designation be
stipulated as irrevocable; and
(5) The spouse who contracted the subsequent marriage
in bad faith shall be disqualified to inherit from the innocent
spouse by testate and intestate succession. (n)
Art. 44. If both spouses of the subsequent marriage acted
in bad faith, said marriage shall be void ab initio and all
donations by reason of marriage and testamentary
disposition made by one in favor of the other are revoked
by operation of law. (n) 26
Based on the foregoing provisions, private respondent's
ultimate prayer for separation of property will simply be
one of the necessary consequences of the judicial
declaration of absolute nullity of their marriage. Thus,
petitioner's suggestion that in order for their properties to
be separated, an ordinary civil action has to be instituted
for that purpose is baseless. The Family Code has clearly
provided the effects of the declaration of nullity of marriage,
one of which is the separation of property according to the
regime of property relations governing them. It stands to
reason that the lower court before whom the issue of
nullity of a first marriage is brought is likewise clothed with
jurisdiction to decide the incidental questions regarding the
couple's properties. Accordingly, the respondent court
committed no reversible error in finding that the lower
court committed no grave abuse of discretion in denying
petitioner's motion to dismiss SP No. 1989-J.
WHEREFORE, the instant petition is hereby DENIED. The
decision of respondent Court dated February 7, 1992 and
the Resolution dated March 20, 1992 are AFFIRMED.
SO ORDERED.
Separate Opinions
VITUG, J., concurring:
I concur with the opinion so well expressed by Mme.
Justice Flerida Ruth P. Romero. I should like, however, to
put in a modest observation.
Void marriages are inexistent from the very beginning and,
I believe, no judicial decree is required to establish their
nullity, except in the following instances:
(a) For purposes of remarriage pursuant to the provision of
Article 40 of the Family Code; viz.:
The absolute nullity of a previous marriage may be
invoked for purposes of remarriage on the basis solely of a
final judgment declaring such previous marriage void. (n)
(b) A marriage celebrated prior to the effectivity of the
Family Code in case a party thereto was psychologically
incapacitated to comply with the essential marital
obligations of marriage (Article 36, Family Code), where
an action or defense for the declaration of nullity
prescribes ten (10) years after the Family Code took effect
(Article 39, Family Code); otherwise, the marriage is
deemed unaffected by the Family Code.
A void marriage, even without its being judicially declared
a nullity, albeit the preferability for, and justiciability (fully
discussed in the majority opinion) of, such a declaration,
will not give it the status or the consequences of a valid
marriage, saving only specific instances where certain
effects of a valid marriage can still flow from the void
marriage. Examples of these cases are children of void
marriages under Article 36 (due to psychological
incapacity) and Article 53, in relation to Article 52 (due to
failure of partition, delivery of presumptive legitimes of
children and recording thereof following the annulment or
declaration of nullity a prior marriage), conceived or born
before the judicial declaration of nullity of such void
marriages, who the law deems as legitimate (Article 54,
Family Code).
In most, if not in all, other cases, a void marriage is to be
considered extant per se. Neither the conjugal, partnership
of gain under the old regime nor the absolute community
of property under the new Code (absent a marriage
settlement), will apply; instead, their property relations
shall be governed by the co-ownership rules under either
Article 147 or Article 148 of the Family Code. I must
hasten to add as a personal view, however, that the
exceptional effects on children of a void marriage because
of the psychological incapacity of a party thereto should
have been extended to cover even the personal and
property relations of the spouses. Unlike the other cases
of void marriages where the grounds therefor may be
established by hard facts and with little uncertainty, the
term "psychological incapacity" is so relative and
unsettling that until a judicial declaration of nullity is made
its interim effects can long and literally hang on the
balance not only insofar as the spouses themselves are
concerned but also as regards third persons with whom
the spouses deal.
G.R. No. 138509 July 31, 2000
IMELDA MARBELLA-BOBIS, petitioner,
vs.
ISAGANI D. BOBIS, respondent.
YNARES-SANTIAGO, J.:
On October 21, 1985, respondent contracted a first
marriage with one Maria Dulce B. Javier. Without said
marriage having been annulled, nullified or terminated, the
same respondent contracted a second marriage with
petitioner Imelda Marbella-Bobis on January 25, 1996 and
allegedly a third marriage with a certain Julia Sally
Hernandez. Based on petitioner's complaint-affidavit, an
information for bigamy was filed against respondent on
February 25, 1998, which was docketed as Criminal Case
No. Q98-75611 of the Regional Trial Court, Branch 226,
Quezon City. Sometime thereafter, respondent initiated a
civil action for the judicial declaration of absolute nullity of
his first marriage on the ground that it was celebrated
without a marriage license. Respondent then filed a motion
to suspend the proceedings in the criminal case for
bigamy invoking the pending civil case for nullity of the first
marriage as a prejudicial question to the criminal case.
The trial judge granted the motion to suspend the criminal
case in an Order dated December 29, 1998.1 Petitioner
filed a motion for reconsideration, but the same was
denied.
Hence, this petition for review on certiorari. Petitioner
argues that respondent should have first obtained a
judicial declaration of nullity of his first marriage before
entering into the second marriage, inasmuch as the
alleged prejudicial question justifying suspension of the
bigamy case is no longer a legal truism pursuant to Article
40 of the Family Code. 2 simply claiming that the first marriage is void and that the
The issue to be resolved in this petition is whether the
subsequent filing of a civil action for declaration of nullity of
a previous marriage constitutes a prejudicial question to a
criminal case for bigamy.
A prejudicial question is one which arises in a case the
resolution of which is a logical antecedent of the issue
involved therein. It is a question based on a fact distinct
3
and separate from the crime but so intimately connected
with it that it determines the guilt or innocence of the
accused. It must appear not only that the civil case
4
involves facts upon which the criminal action is based, but
also that the resolution of the issues raised in the civil
action would necessarily be determinative of the criminal
case. Consequently, the defense must involve an issue
5
similar or intimately related to the same issue raised in the
criminal action and its resolution determinative of whether
or not the latter action may proceed. Its two essential
6 before us was void for lack of a marriage license.
elements are: 7
(a) the civil action involves an issue similar or intimately
related to the issue raised in the criminal action; and
(b) the resolution of such issue determines whether or not
the criminal action may proceed.
A prejudicial question does not conclusively resolve the
guilt or innocence of the accused but simply tests the
sufficiency of the allegations in the information in order to
sustain the further prosecution of the criminal case. A
party who raises a prejudicial question is deemed to have
hypothetically admitted that all the essential elements of a
crime have been adequately alleged in the information,
considering that the prosecution has not yet presented a
single evidence on the indictment or may not yet have
rested its case. A challenge of the allegations in the
information on the ground of prejudicial question is in
effect a question on the merits of the criminal charge
through a non-criminal suit.
Article 40 of the Family Code, which was effective at the
time of celebration of the second marriage, requires a prior
judicial declaration of nullity of a previous marriage before
a party may remarry. The clear implication of this is that it
is not for the parties, particularly the accused, to determine
the validity or invalidity of the marriage. Whether or not the
8
first marriage was void for lack of a license is a matter of
defense because there is still no judicial declaration of its
nullity at the time the second marriage was contracted. It
should be remembered that bigamy can successfully be
prosecuted provided all its elements concur – two of which
are a previous marriage and a subsequent marriage which
would have been valid had it not been for the existence at
the material time of the first marriage. 9
In the case at bar, respondent's clear intent is to obtain a
judicial declaration of nullity of his first marriage and
thereafter to invoke that very same judgment to prevent
his prosecution for bigamy. He cannot have his cake and
eat it too. Otherwise, all that an adventurous bigamist has
to do is to disregard Article 40 of the Family Code, contract
a subsequent marriage and escape a bigamy charge by
subsequent marriage is equally void for lack of a prior
judicial declaration of nullity of the first. A party may even
enter into a marriage aware of the absence of a requisite -
usually the marriage license - and thereafter contract a
subsequent marriage without obtaining a declaration of
nullity of the first on the assumption that the first marriage
is void. Such scenario would render nugatory the
provisions on bigamy. As succinctly held in Landicho v.
Relova: 10
(P)arties to a marriage should not be permitted to judge for
themselves its nullity, only competent courts having such
authority. Prior to such declaration of nullity, the validity of
the first marriage is beyond question. A party who
contracts a second marriage then assumes the risk of
being prosecuted for bigamy.
Respondent alleges that the first marriage in the case
Petitioner, on the other hand, argues that her marriage to
respondent was exempt from the requirement of a
marriage license. More specifically, petitioner claims that
prior to their marriage, they had already attained the age of
majority and had been living together as husband and wife
for at least five years. The issue in this case is limited to
11
the existence of a prejudicial question, and we are not
called upon to resolve the validity of the first marriage. Be
that as it may, suffice it to state that the Civil Code, under
which the first marriage was celebrated, provides that
"every intendment of law or fact leans toward the validity of
marriage, the indissolubility of the marriage bonds." [] 12
Hence, parties should not be permitted to judge for
themselves the nullity of their marriage, for the same must
be submitted to the determination of competent courts.
reason is that, without a judicial declaration of its nullity,
the first marriage is presumed to be subsisting. In the case
at bar, respondent was for all legal intents and purposes
regarded as a married man at the time he contracted his
second marriage with petitioner. Against this legal
20

Only when the nullity of the marriage is so declared can it
be held as void, and so long as there is no such
declaration the presumption is that the marriage exists.
No matter how obvious, manifest or patent the absence of
an element is, the intervention of the courts must always
be resorted to. That is why Article 40 of the Family Code
requires a "final judgment," which only the courts can
render. Thus, as ruled in Landicho v. Relova, he who
14
backdrop, any decision in the civil action for nullity would
not erase the fact that respondent entered into a second
13
marriage during the subsistence of a first marriage. Thus,
a decision in the civil case is not essential to the
determination of the criminal charge. It is, therefore, not a
prejudicial question. As stated above, respondent cannot
be permitted to use his own malfeasance to defeat the
criminal action against him.21

contracts a second marriage before the judicial declaration

of nullity of the first marriage assumes the risk of being WHEREFORE, the petition is GRANTED. The order dated
prosecuted for bigamy, and in such a case the criminal December 29, 1998 of the Regional Trial Court, Branch
case may not be suspended on the ground of the 226 of Quezon City is REVERSED and SET ASIDE and
pendency of a civil case for declaration of nullity. In a the trial court is ordered to IMMEDIATELY proceed with
recent case for concubinage, we held that the pendency of Criminal Case No. Q98-75611.
a civil case for declaration of nullity of marriage is not a
prejudicial question. This ruling applies here by analogy
15
SO ORDERED.
since both crimes presuppose the subsistence of a
marriage.

Ignorance of the existence of Article 40 of the Family Code

cannot even be successfully invoked as an excuse. The 16

contracting of a marriage knowing that the requirements of

the law have not been complied with or that the marriage
is in disregard of a legal impediment is an act penalized by
the Revised Penal Code. The legality of a marriage is a
17

matter of law and every person is presumed to know the

law. As respondent did not obtain the judicial declaration
of nullity when he entered into the second marriage, why
should he be allowed to belatedly obtain that judicial
declaration in order to delay his criminal prosecution and
subsequently defeat it by his own disobedience of the law?
If he wants to raise the nullity of the previous marriage, he
can do it as a matter of defense when he presents his
evidence during the trial proper in the criminal case.

The burden of proof to show the dissolution of the first

marriage before the second marriage was contracted rests
upon the defense, but that is a matter that can be raised
18

in the trial of the bigamy case. In the meantime, it should

be stressed that not every defense raised in the civil action
may be used as a prejudicial question to obtain the
suspension of the criminal action. The lower court,
therefore, erred in suspending the criminal case for
bigamy. Moreover, when respondent was indicted for
bigamy, the fact that he entered into two marriage
ceremonies appeared indubitable. It was only after he was
sued by petitioner for bigamy that he thought of seeking a
judicial declaration of nullity of his first marriage. The
obvious intent, therefore, is that respondent merely
resorted to the civil action as a potential prejudicial
question for the purpose of frustrating or delaying his
criminal prosecution. As has been discussed above, this
cannot be done. 1awphi 1

In the light of Article 40 of the Family Code, respondent,

without first having obtained the judicial declaration of
nullity of the first marriage, can not be said to have validly
entered into the second marriage. Per current
jurisprudence, a marriage though void still needs a judicial
declaration of such fact before any party can marry again;
otherwise the second marriage will also be void. The 19
A.M. No. 2349 July 3, 1992
DOROTHY B. TERRE, complainant,
vs.
ATTY. JORDAN TERRE, respondent.
PER CURIAM:
In a sworn complaint filed with this Court on 24 December
1981, complainant Dorothy B. Terre charged respondent
Jordan Terre, a member of the Philippine Bar with "grossly
immoral conduct," consisting of contracting a second
marriage and living with another woman other than
complainant, while his prior marriage with complainant
remained subsisting.
The Court resolved to require respondent to answer the
complaint. 1 Respondent successfully evaded five (5)
attempts to serve a copy of the Court's Resolution and of
the complaint by moving from one place to another, such
that he could not be found nor reached in his alleged place
of employment or residence. 2 On 24 April 1985, that is
after three (3) years and a half, with still no answer from
the respondent, the Court noted respondent's success in
evading service of the complaint and the Court's
Resolution and thereupon resolved to "suspend
respondent Atty. Jordan Terre from the practice of law until
after he appears and/or files his answer to the complaint
against him" in the instant
case. 3
On 28 September 1985, respondent finally filed an Answer
with a Motion to Set Aside and/or Lift Suspension Order. In
his Answer, Atty. Terre averred that he had contracted
marriage with complainant Dorothy Terre on 14 June 1977
upon her representation that she was single; that he
subsequently learned that Dorothy was married to a
certain Merlito A. Bercenilla sometime in 1968; that when
he confronted Dorothy about her prior marriage, Dorothy
drove him out of their conjugal residence; that Dorothy had
mockingly told him of her private meetings with Merlito A.
Bercenilla and that the child she was then carrying (i.e.,
Jason Terre) was the son of Bercenilla; that believing in
good faith that his marriage to complainant was null and
void ab initio, he contracted marriage with Helina
Malicdem at Dasol, Pangasinan. 4
In her Reply, complainant Dorothy denied that Jason Terre
was the child of Merlito A. Bercenilla and insisted that
Jason was the child of respondent Jordan Terre, as
evidenced by Jason's Birth Certificate and physical
resemblance to respondent. Dorothy further explained that
while she had given birth to Jason Terre at the PAFGH
registered as a dependent of Merlito Bercenilla, she had
done so out of extreme necessity and to avoid risk of
death or injury to the fetus which happened to be in a
difficult breech position. According to Dorothy, she had
then already been abandoned by respondent Jordan Terre,
leaving her penniless and without means to pay for the
medical and hospital bills arising by reason of her
pregnancy.
The Court denied respondent's Motion to Set Aside or Lift
the Suspension Order and instead referred; by a
Resolution dated 6 January 1986, the complaint to the
Office of the Solicitor General for investigation, report and
recommendation. 5
Then Solicitor Pio C. Guerrero was appointed investigator
by the Office of the Solicitor General. He set the case for
hearing on 7 July 1986 with notice to both parties. On 7
July 1986, complainant Dorothy appeared and presented
her evidence ex parte, since respondent did not so
appear. 6 The Investigating Solicitor scheduled and held
another hearing on 19 August 1986, where he put
clarificatory questions to the complainant; respondent
once again did not appear despite notice to do so.
Complainant finally offered her evidence and rested her
case. The Solicitor set still another hearing for 2 October
1986, notifying respondent to present his evidence with a
warning that should he fail once more to appear, the case
would be deemed submitted for resolution. Respondent
did not appear on 2 October 1986. The Investigating
Solicitor accordingly considered respondent to have
waived his right to present evidence and declared the case
submitted for resolution. The parties were given time to
submit their respective memoranda. Complainant Dorothy
did so on 8 December 1986. Respondent Terre did not file
his memorandum.
On 26 February 1990, the Office of the Solicitor General
submitted its "Report and Recommendation" to this Court.
The Report summarized the testimony of the complainant
in the following manner:
Complainant Dorothy Terre took the witness stand and
testified substantially as follows: she and respondent met
for the first time in 1979 as fourth year high school
classmates in Cadiz City High School (tsn, July 7, 1986, p.
9); she was then married to Merlito Bercenilla, while
respondent was single (id.); respondent was aware of her
marital status (ibid, p. 14); it was then that respondent
started courting her but nothing happened of the courtship
(ibid, p. 10); they [complainant and respondent] moved to
Manila were they respectively pursued their education,
respondent as a law student at the Lyceum University (tsn,
July 7, 1986, p. 12, 15-16); respondent continued courting
her, this time with more persistence (ibid, p. 11); she
decided nothing would come of it since she was married
but he [respondent] explained to her that their marriage
was void ab initio since she and her first husband were
first cousins (ibid, p. 12); convinced by his explanation and
having secured favorable advice from her mother and
ex-in-laws, she agreed to marry him [respondent] (ibid,
12-13, 16); in their marriage license, despite her
[complainant's] objection, he [respondent] wrote "single"
as her status explaining that since her marriage was
void ab initio, there was no need to go to court to declare it
as such (ibid, 14-15); they were married before Judge
Priscilla Mijares of the City Court of Manila on June 14,
1977 (Exhibit A; tsn, July 7, 1986, pp. 16-17); Jason Terre
was born of their union on June 25, 1981 (Exhibit B, tsn,
July 7, 1986, p. 18); all through their married state up to
the time he [respondent] disappeared in 1981,
complainant supported respondent, in addition to the
allowance the latter was getting from his parents (ibid, pp.
19-20); she was unaware of the reason for his
disappearance until she found out later that respondent
married a certain Vilma [sic] Malicdem (Exhibit C, tsn, July
7, 1986, pp. 21-22); she then filed a case for abandonment
of minor with the City Fiscal of Pasay City (ibid, p. 23)
which was subsequently filed before Branch II of the City
Court of Pasay City as Criminal Case No. 816159 (Exhibit
D; tsn, July 7, 1986, p. 24); she likewise filed a case for
bigamy against respondent and Helina Malicdem with the
office of the Provincial Fiscal of Pangasinan, where
a prima facie case was found to exist (Exhibit E; tsn, July 7,
pp. 25-26); additionally, complainant filed an
administrative case against respondent with the
Commission on Audit where he was employed, which case
however was considered closed for being moot and
academic when respondent was considered automatically
separated from the service for having gone on absence
without official leave (Exhibit F; tsn, July 7, 1986, pp.
28-29). 7
There is no dispute over the fact that complainant Dorothy
Terre and respondent Jordan Terre contracted marriage
on 14 July 1977 before Judge Priscilla Mijares. There is
further no dispute over the fact that on 3 May 1981,
respondent Jordan Terre married Helina Malicdem in
Dasol, Pangasinan. When the second marriage was
entered into, respondent's prior marriage with complainant
was subsisting, no judicial action having been initiated or
any judicial declaration obtained as to the nullity of such
prior marriage of respondent with complainant.
Respondent Jordan Terre sought to defend himself by
claiming that he had believed in good faith that his prior
marriage with complainant Dorothy Terre was null and
void ab initio and that no action for a judicial declaration of
nullity was necessary.
The Court considers this claim on the part of respondent
Jordan Terre as a spurious defense. In the first place,
respondent has not rebutted complainant's evidence as to
the basic facts which underscores the bad faith of
respondent Terre. In the second place, that pretended
defense is the same argument by which he had inveigled
complainant into believing that her prior marriage to
Merlito A. Bercenilla being incestuous and void ab
initio (Dorothy and Merlito being allegedly first cousins to
each other), she was free to contract a second marriage
with the respondent. Respondent Jordan Terre, being a
lawyer, knew or should have known that such an argument
ran counter to the prevailing case law of this Court which
holds that for purposes of determining whether a person is
legally free to contract a second marriage, a judicial
declaration that the first marriage was null and void ab
initio is essential. 8 Even if we were to
assume, arguendo merely, that Jordan Terre held that
mistaken belief in good faith, the same result will follow.
For if we are to hold Jordan Terre to his own argument, his
first marriage to complainant Dorothy Terre must be
deemed valid, with the result that his second marriage to
Helina Malicdem must be regarded as bigamous and
criminal in character.
That the moral character of respondent Jordan Terre was
deeply flawed is shown by other circumstances. As noted,
he convinced the complainant that her prior marriage to
Bercenilla was null and void ab initio, that she was still
legally single and free to marry him. When complainant
and respondent had contracted their marriage, respondent
went through law school while being supported by
complainant, with some assistance from respondent's
parents. After respondent had finished his law course and
gotten complainant pregnant, respondent abandoned the
complainant without support and without the wherewithal
for delivering his own child safely in a hospital.
Thus, we agree with the Solicitor General that respondent
Jordan Terre, by his actions, "eloquently displayed, not
only his unfitness to remain as a member of the Bar, but
likewise his inadequacy to uphold the purpose and
responsibility of his gender" because marriage is a basic
social institution. 9
In Pomperada v. Jochico, 10 the Court, in rejecting a
petition to be allowed to take the oath as a member of the
Bar and to sign the Roll of Attorneys, said through Mme.
Justice Melencio-Herrera:
It is evident that respondent fails to meet the standard of
moral fitness for membership in the legal profession.
Whether the marriage was a joke as respondent claims, or
a trick played on her as claimed by complainant, it does
not speak well of respondent's moral values. Respondent
had made a mockery of marriage, a basic social institution
which public policy cherishes and protects (Article 216,
Civil Code). 11
In Bolivar v. Simbol, 12 the Court found the respondent
there guilty of "grossly immoral conduct" because he made
a dupe of complainant, living on her bounty and allowing
her to spend for his schooling and other personal
necessities while dangling before her the mirage of a
marriage, marrying another girl as soon as he had finished
his studies, keeping his marriage a secret while continuing
to demand money from complainant. . . . ." The Court held
such acts "indicative of a character not worthy of a
member of the Bar." 13
We believe and so hold that the conduct of respondent
Jordan Terre in inveigling complainant Dorothy Terre to
contract a second marriage with him; in abandoning
complainant Dorothy Terre after she had cared for him and
supported him through law school, leaving her without
means for the safe delivery of his own child; in contracting
a second marriage with Helina Malicdem while his first
marriage with complainant Dorothy Terre was subsisting,
constituted "grossly immoral conduct" under Section 27 of
Rule 138 of the Rules of Court, affording more than
sufficient basis for disbarment of respondent Jordan Terre.
He was unworthy of admission to the Bar in the first place.
The Court will correct this error forthwith.
WHEREFORE, the Court Resolved to DISBAR
respondent Jordan Terre and to STRIKE OUT his name
from the Roll of Attorneys. A copy of this decision shall be
spread on the personal record of respondent Jordan Terre
in the Bar Confidant's Office. A copy of this resolution shall
also be furnished to the Integrated Bar of the Philippines
and shall be circularized to all the courts of the land.
SO ORDERED.
A.M. No. MTJ-92-706 March 29, 1995
LUPO ALMODIEL ATIENZA, complainant,
vs.
JUDGE FRANCISCO F. BRILLANTES, JR.,
Metropolitan Trial Court, Branch 28,
Manila, respondent.
QUIASON, J.:
This is a complaint by Lupo A. Atienza for Gross
Immorality and Appearance of Impropriety against Judge
Francisco Brillantes, Jr., Presiding Judge of the
Metropolitan Trial Court, Branch 20, Manila.
Complainant alleges that he has two children with Yolanda
De Castro, who are living together at No. 34 Galaxy Street,
Bel-Air Subdivision, Makati, Metro Manila. He stays in said
house, which he purchased in 1987, whenever he is in
Manila.
In December 1991, upon opening the door to his bedroom,
he saw respondent sleeping on his (complainant's) bed.
Upon inquiry, he was told by the houseboy that
respondent had been cohabiting with De Castro.
Complainant did not bother to wake up respondent and
instead left the house after giving instructions to his
houseboy to take care of his children.
Thereafter, respondent prevented him from visiting his
children and even alienated the affection of his children for
him.
Complainant claims that respondent is married to one
Zenaida Ongkiko with whom he has five children, as
appearing in his 1986 and 1991 sworn statements of
assets and liabilities. Furthermore, he alleges that
respondent caused his arrest on January 13, 1992, after
he had a heated argument with De Castro inside the
latter's office.
For his part, respondent alleges that complainant was not
married to De Castro and that the filing of the
administrative action was related to complainant's claim on
the Bel-Air residence, which was disputed by De Castro.
Respondent denies that he caused complainant's arrest
and claims that he was even a witness to the withdrawal of
the complaint for Grave Slander filed by De Castro against
complainant. According to him, it was the sister of De
Castro who called the police to arrest complainant.
Respondent also denies having been married to Ongkiko,
although he admits having five children with her. He
alleges that while he and Ongkiko went through a
marriage ceremony before a Nueva Ecija town mayor on
April 25, 1965, the same was not a valid marriage for lack
of a marriage license. Upon the request of the parents of
Ongkiko, respondent went through another marriage
ceremony with her in Manila on June 5, 1965. Again,
neither party applied for a marriage license. Ongkiko
abandoned respondent 17 years ago, leaving their
children to his care and custody as a single parent.
Respondent claims that when he married De Castro in civil
rites in Los Angeles, California on December 4, 1991, he
believed, in all good faith and for all legal intents and
purposes, that he was single because his first marriage
was solemnized without a license.
Under the Family Code, there must be a judicial
declaration of the nullity of a previous marriage before a
party thereto can enter into a second marriage. Article 40
of said Code provides:
The absolute nullity of a previous marriage may be
invoked for the purposes of remarriage on the basis solely
of a final judgment declaring such previous marriage void.
Respondent argues that the provision of Article 40 of the
Family Code does not apply to him considering that his
first marriage took place in 1965 and was governed by the
Civil Code of the Philippines; while the second marriage
took place in 1991 and governed by the Family Code.
Article 40 is applicable to remarriages entered into after
the effectivity of the Family Code on August 3, 1988
regardless of the date of the first marriage. Besides, under
Article 256 of the Family Code, said Article is given
"retroactive effect insofar as it does not prejudice or impair
vested or acquired rights in accordance with the Civil Code
or other laws." This is particularly true with Article 40,
which is a rule of procedure. Respondent has not shown
any vested right that was impaired by the application of
Article 40 to his case.
The fact that procedural statutes may somehow affect the
litigants' rights may not preclude their retroactive
application to pending actions. The retroactive application
of procedural laws is not violative of any right of a person
who may feel that he is adversely affected (Gregorio v.
Court of Appeals, 26 SCRA 229 [1968]). The reason is that
as a general rule no vested right may attach to, nor arise
from, procedural laws (Billones v. Court of Industrial
Relations, 14 SCRA 674 [1965]).
Respondent is the last person allowed to invoke good faith.
He made a mockery of the institution of marriage and
employed deceit to be able to cohabit with a woman, who
beget him five children.
Respondent passed the Bar examinations in 1962 and
was admitted to the practice of law in 1963. At the time he
went through the two marriage ceremonies with Ongkiko,
he was already a lawyer. Yet, he never secured any
marriage license. Any law student would know that a
marriage license is necessary before one can get married.
Respondent was given an opportunity to correct the flaw in
his first marriage when he and Ongkiko were married for
the second time. His failure to secure a marriage license
on these two occasions betrays his sinister motives and
bad faith.
It is evident that respondent failed to meet the standard of
moral fitness for membership in the legal profession.
While the deceit employed by respondent existed prior to
his appointment as a Metropolitan Trial Judge, his immoral
and illegal act of cohabiting with De Castro began and
continued when he was already in the judiciary.

The Code of Judicial Ethics mandates that the conduct of

a judge must be free of a whiff of impropriety, not only with
respect to his performance of his judicial duties but also as
to his behavior as a private individual. There is no duality
of morality. A public figure is also judged by his private life.
A judge, in order to promote public confidence in the
integrity and impartiality of the judiciary, must behave with
propriety at all times, in the performance of his judicial
duties and in his everyday life. These are judicial
guideposts too self-evident to be overlooked. No position
exacts a greater demand on moral righteousness and
uprightness of an individual than a seat in the judiciary
(Imbing v. Tiongzon, 229 SCRA 690 [1994]).

WHEREFORE, respondent is DISMISSED from the

service with forfeiture of all leave and retirement benefits
and with prejudice to reappointment in any branch,
instrumentality, or agency of the government, including
government-owned and controlled corporations. This
decision is immediately executory.

SO ORDERED.
G.R. No. 137110 August 1, 2000
VINCENT PAUL G. MERCADO a.k.a. VINCENT G.
MERCADO, petitioner,
vs.
CONSUELO TAN, respondent.
DECISION
PANGANIBAN, J.:
A judicial declaration of nullity of a previous marriage is
necessary before a subsequent one can be legally
contracted. One who enters into a subsequent marriage
without first obtaining such judicial declaration is guilty of
bigamy. This principle applies even if the earlier union is
characterized by statute as "void."
The Case
Before us is a Petition for Review on Certiorari assailing
the July 14, 1998 Decision of the Court of Appeals (CA) in 1
CA-GR CR No. 19830 and its January 4, 1999 Resolution
denying reconsideration. The assailed Decision affirmed
the ruling of the Regional Trial Court (RTC) of Bacolod City
in Criminal Case No. 13848, which convicted herein
petitioner of bigamy as follows:
"WHEREFORE, finding the guilt of accused Dr. Vincent
Paul G. Mercado a.k.a. Dr. Vincent G. Mercado of the
crime of Bigamy punishable under Article 349 of the
Revised Penal Code to have been proven beyond
reasonable doubt, [the court hereby renders] judgment
imposing upon him a prison term of three (3) years, four (4)
months and fifteen (15) days of prision correccional, as
minimum of his indeterminate sentence, to eight (8) years
and twenty-one (21) days of prision mayor, as maximum,
plus accessory penalties provided by law.
Costs against accused." 2
The Facts
The facts are quoted by Court of Appeals (CA) from the
trial court’s judgment, as follows: "From the evidence
adduced by the parties, there is no dispute that accused
Dr. Vincent Mercado and complainant Ma. Consuelo Tan
got married on June 27, 1991 before MTCC-Bacolod City
Br. 7 Judge Gorgonio J. Ibañez [by reason of] which a
Marriage Contract was duly executed and signed by the
parties. As entered in said document, the status of
accused was ‘single’. There is no dispute either that at the
time of the celebration of the wedding with complainant,
accused was actually a married man, having been in
lawful wedlock with Ma. Thelma Oliva in a marriage
ceremony solemnized on April 10, 1976 by Judge
Leonardo B. Cañares, CFI-Br. XIV, Cebu City per
Marriage Certificate issued in connection therewith, which
matrimony was further blessed by Rev. Father Arthur Baur
on October 10, 1976 in religious rites at the Sacred Heart
Church, Cebu City. In the same manner, the civil marriage
between accused and complainant was confirmed in a
church ceremony on June 29, 1991 officiated by Msgr.
Victorino A. Rivas, Judicial Vicar, Diocese of Bacolod City.
Both marriages were consummated when out of the first
consortium, Ma. Thelma Oliva bore accused two children,
while a child, Vincent Paul, Jr. was sired by accused with
complainant Ma. Consuelo Tan.
"On October 5, 1992, a letter-complaint for bigamy was
filed by complainant through counsel with the City
Prosecutor of Bacolod City, which eventually resulted [in]
the institution of the present case before this Court against
said accused, Dr. Vincent G. Mercado, on March 1, 1993
in an Information dated January 22, 1993.
"On November 13, 1992, or more than a month after the
bigamy case was lodged in the Prosecutor’s Office,
accused filed an action for Declaration of Nullity of
Marriage against Ma. Thelma V. Oliva in RTC-Br. 22,
Cebu City, and in a Decision dated May 6, 1993 the
marriage between Vincent G. Mercado and Ma. Thelma V.
Oliva was declared null and void.
"Accused is charged [with] bigamy under Article 349 of the
Revised Penal Code for having contracted a second
marriage with herein complainant Ma. Consuelo Tan on
June 27, 1991 when at that time he was previously united
in lawful marriage with Ma. Thelma V. Oliva on April 10,
1976 at Cebu City, without said first marriage having been
legally dissolved. As shown by the evidence and admitted
by accused, all the essential elements of the crime are
present, namely: (a) that the offender has been previously
legally married; (2) that the first marriage has not been
legally dissolved or in case the spouse is absent, the
absent spouse could not yet be presumed dead according
to the Civil Code; (3) that he contract[ed] a second or
subsequent marriage; and (4) that the second or
subsequent marriage ha[d] all the essential requisites for
validity. x x x
"While acknowledging the existence of the two marriage[s],
accused posited the defense that his previous marriage
ha[d] been judicially declared null and void and that the
private complainant had knowledge of the first marriage of
accused.
"It is an admitted fact that when the second marriage was
entered into with Ma. Consuelo Tan on June 27, 1991,
accused’s prior marriage with Ma. Thelma V. Oliva was
subsisting, no judicial action having yet been initiated or
any judicial declaration obtained as to the nullity of such
prior marriage with Ma. Thelma V. Oliva. Since no
declaration of the nullity of his first marriage ha[d] yet been
made at the time of his second marriage, it is clear that
accused was a married man when he contracted such
second marriage with complainant on June 27, 1991. He
was still at the time validly married to his first wife."
3
Ruling of the Court of Appeals
Agreeing with the lower court, the Court of Appeals stated:
"Under Article 40 of the Family Code, ‘the absolute nullity
of a previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment
declaring such previous marriage void.’ But here, the final
judgment declaring null and void accused’s previous
marriage came not before the celebration of the second
marriage, but after, when the case for bigamy against
accused was already tried in court. And what constitutes
the crime of bigamy is the act of any person who shall
contract a second subsequent marriage ‘before’ the former
marriage has been legally dissolved." 4
Hence, this Petition. 5 marriage is deemed never to have taken place at all. Thus,
The Issues
In his Memorandum, petitioner raises the following issues:
"A
Whether or not the element of previous legal marriage is
present in order to convict petitioner.
"B
Whether or not a liberal interpretation in favor of petitioner
of Article 349 of the Revised Penal Code punishing
bigamy, in relation to Articles 36 and 40 of the Family
Code, negates the guilt of petitioner.
"C
Whether or not petitioner is entitled to an acquittal on the
basis of reasonable doubt." 6
The Court’s Ruling
The Petition is not meritorious.
Main Issue:Effect of Nullity of Previous Marriage
Petitioner was convicted of bigamy under Article 349 of the
Revised Penal Code, which provides:
"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 this crime are as follows:
"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." 7
When the Information was filed on January 22, 1993, all
the elements of bigamy were present. It is undisputed that
petitioner married Thelma G. Oliva on April 10, 1976 in
Cebu City. While that marriage was still subsisting, he
contracted a second marriage, this time with Respondent
Ma. Consuelo Tan who subsequently filed the Complaint
for bigamy.
Petitioner contends, however, that he obtained a judicial
declaration of nullity of his first marriage under Article 36 of
the Family Code, thereby rendering it void ab initio. Unlike
voidable marriages which are considered valid until set
aside by a competent court, he argues that a void
8
he concludes that there is no first marriage to speak of.
Petitioner also quotes the commentaries of former Justice
9
Luis Reyes that "it is now settled that if the first marriage is
void from the beginning, it is a defense in a bigamy charge.
But if the first marriage is voidable, it is not a defense."
Respondent, on the other hand, admits that the first
marriage was declared null and void under Article 36 of the
Family Code, but she points out that that declaration came
only after the Information had been filed. Hence, by then,
the crime had already been consummated. She argues
that a judicial declaration of nullity of a void previous
marriage must be obtained before a person can marry for
a subsequent time.
We agree with the respondent.
To be sure, jurisprudence regarding the need for a judicial
declaration of nullity of the previous marriage has been
characterized as "conflicting." In People v. Mendoza, a
10 11
bigamy case involving an accused who married three
times, the Court ruled that there was no need for such
declaration. In that case, the accused contracted a second
marriage during the subsistence of the first. When the first
wife died, he married for the third time. The second wife
then charged him with bigamy. Acquitting him, the Court
held that the second marriage was void ab initio because it
had been contracted while the first marriage was still in
effect. Since the second marriage was obviously void and
illegal, the Court ruled that there was no need for a judicial
declaration of its nullity. Hence, the accused did not
commit bigamy when he married for the third time. This
ruling was affirmed by the Court in People v. Aragon, 12
which involved substantially the same facts.
But in subsequent cases, the Court impressed the need
for a judicial declaration of nullity. In Vda de Consuegra v.
GSIS, Jose Consuegra married for the second time while
13
the first marriage was still subsisting. Upon his death, the
Court awarded one half of the proceeds of his retirement
benefits to the first wife and the other half to the second
wife and her children, notwithstanding the manifest nullity
of the second marriage. It held: "And with respect to the
right of the second wife, this Court observes that although
the second marriage can be presumed to be void ab
initio as it was celebrated while the first marriage was still
subsisting, still there is need for judicial declaration of such
nullity."
In Tolentino v. Paras, however, the Court again held that
14
judicial declaration of nullity of a void marriage was not
necessary. In that case, a man married twice. In his Death
Certificate, his second wife was named as his surviving
spouse. The first wife then filed a Petition to correct the
said entry in the Death Certificate. The Court ruled in favor
of the first wife, holding that "the second marriage that he
contracted with private respondent during the lifetime of
the first spouse is null and void from the beginning and of
no force and effect. No judicial decree is necessary to
establish the invalidity of a void marriage."
In Wiegel v. Sempio-Diy, the Court stressed the need for
15
such declaration. In that case, Karl Heinz Wiegel filed an
action for the declaration of nullity of his marriage to Lilia
Olivia Wiegel on the ground that the latter had a prior
existing marriage. After pretrial, Lilia asked that she be
allowed to present evidence to prove, among others, that
her first husband had previously been married to another
woman. In holding that there was no need for such
evidence, the Court ruled: "x x x There is likewise no need
of introducing evidence about the existing prior marriage of
her first husband at the time they married each other, for
then such a marriage though void still needs, according to
this Court, a judicial declaration of such fact and for all
legal intents and purposes she would still be regarded as a
married woman at the time she contracted her marriage
with respondent Karl Heinz Wiegel; x x x."
Subsequently, in Yap v. CA, the Court reverted to the
16
ruling in People v. Mendoza, holding that there was no
need for such declaration of nullity.
In Domingo v. CA, the issue raised was whether a judicial
17
declaration of nullity was still necessary for the recovery
and the separation of properties of erstwhile spouses.
Ruling in the affirmative, the Court declared: "The Family
Code has settled once and for all the conflicting
jurisprudence on the matter. A declaration of the absolute
nullity of a marriage is now explicitly required either as a
cause of action or a ground for defense; in fact, the
requirement for a declaration of absolute nullity of a
marriage is also for the protection of the spouse who,
believing that his or her marriage is illegal and void,
marries again. With the judicial declaration of the nullity of
his or her first marriage, the person who marries again
cannot be charged with bigamy." 18
Unlike Mendoza and Aragon, Domingo as well as the
other cases herein cited was not a criminal prosecution for
bigamy. Nonetheless, Domingo underscored the need for
a judicial declaration of nullity of a void marriage on the
basis of a new provision of the Family Code, which came
into effect several years after the promulgation
of Mendoza and Aragon.
In Mendoza and Aragon, the Court relied on Section 29 of
Act No. 3613 (Marriage Law), which provided:
"Illegal marriages. — Any marriage subsequently
contracted by any person during the lifetime of the first
spouse shall be illegal and void from its
performance, unless:
(a) The first marriage was annulled or dissolved;
(b) 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 the absentee being generally considered as
dead and believed to be so by the spouse present at the
time of contracting such subsequent marriage, the
marriage as contracted being valid in either case until
declared null and void by a competent court."
The Court held in those two cases that the said provision
"plainly makes a subsequent marriage contracted by any
person during the lifetime of his first spouse illegal and
void from its performance, and no judicial decree is
necessary to establish its invalidity, as distinguished from
mere annulable marriages." 19
The provision appeared in substantially the same form
under Article 83 of the 1950 Civil Code and Article 41 of
the Family Code. However, Article 40 of the Family Code,
a new provision, expressly requires a judicial declaration
of nullity of the previous marriage, as follows:
"ART. 40. The absolute nullity of a previous marriage may
be invoked for purposes of remarriage on the basis solely
of a final judgment declaring such marriage void."
In view of this provision, Domingo stressed that a final
judgment declaring such marriage void was necessary.
Verily, the Family Code and Domingo affirm the earlier
ruling in Wiegel. Thus, a Civil Law authority and member
of the Civil Code Revision Commitee has observed:
"[Article 40] is also in line with the recent decisions of the
Supreme Court that the marriage of a person may be null
and void but there is need of a judicial declaration of such
fact before that person can marry again; otherwise, the
second marriage will also be void (Wiegel v. Sempio-Diy,
Aug. 19/86, 143 SCRA 499, Vda. De Consuegra v. GSIS,
37 SCRA 315). This provision changes the old rule that
where a marriage is illegal and void from its performance,
no judicial decree is necessary to establish its validity
(People v. Mendoza, 95 Phil. 843; People v. Aragon, 100
Phil. 1033)."20
In this light, the statutory mooring of the ruling
in Mendoza and Aragon – that there is no need for a
judicial declaration of nullity of a void marriage -- has been
cast aside by Article 40 of the Family Code. Such
declaration is now necessary before one can contract a
second marriage. Absent that declaration, we hold that
one may be charged with and convicted of bigamy.
The present ruling is consistent with our pronouncement
in Terre v. Terre, which involved an administrative
21
Complaint against a lawyer for marrying twice. In rejecting
the lawyer’s argument that he was free to enter into a
second marriage because the first one was void ab initio,
the Court ruled: "for purposes of determining whether a
person is legally free to contract a second marriage, a
judicial declaration that the first marriage was null and
void ab initio is essential." The Court further noted that the
said rule was "cast into statutory form by Article 40 of the
Family Code." Significantly, it observed that the second
marriage, contracted without a judicial declaration that the
first marriage was void, was "bigamous and criminal in
character."
Moreover, Justice Reyes, an authority in Criminal Law
whose earlier work was cited by petitioner, changed his
view on the subject in view of Article 40 of the Family Code
and wrote in 1993 that a person must first obtain a judicial
declaration of the nullity of a void marriage before
contracting a subsequent marriage: 22
"It is now settled that the fact that the first marriage is void
from the beginning is not a defense in a bigamy charge. As
with a voidable marriage, there must be a judicial If there are indeed damages caused to her reputation, they
declaration of the nullity of a marriage before contracting are of her own willful making."
25

the second marriage. Article 40 of the Family Code states

that x x x. The Code Commission believes that the parties
to a marriage should not be allowed to assume that their
marriage is void, even if such is the fact, but must first
secure a judicial declaration of nullity of their marriage
before they should be allowed to marry again. x x x."
WHEREFORE, the Petition is DENIED and the assailed
Decision AFFIRMED. Costs against petitioner.
SO ORDERED.

In the instant case, petitioner contracted a second

marriage although there was yet no judicial declaration of
nullity of his first marriage. In fact, he instituted the Petition
to have the first marriage declared void only after
complainant had filed a letter-complaint charging him with
bigamy. By contracting a second marriage while the first
was still subsisting, he committed the acts punishable
under Article 349 of the Revised Penal Code.

That he subsequently obtained a judicial declaration of the

nullity of the first marriage was immaterial. To repeat, the
crime had already been consummated by then. Moreover,
his view effectively encourages delay in the prosecution of
bigamy cases; an accused could simply file a petition to
declare his previous marriage void and invoke the
pendency of that action as a prejudicial question in the
criminal case. We cannot allow that.

Under the circumstances of the present case, he is guilty

of the charge against him.

Damages

In her Memorandum, respondent prays that the Court set

aside the ruling of the Court of Appeals insofar as it denied
her claim of damages and attorney’s fees. 23

Her prayer has no merit. She did not appeal the ruling of
the CA against her; hence, she cannot obtain affirmative
relief from this Court. In any event, we find no reason to
24

reverse or set aside the pertinent ruling of the CA on this

point, which we quote hereunder:

"We are convinced from the totality of the evidence

presented in this case that Consuelo Tan is not the
innocent victim that she claims to be; she was well aware
of the existence of the previous marriage when she
contracted matrimony with Dr. Mercado. The testimonies
of the defense witnesses prove this, and we find no reason
to doubt said testimonies.

xxx xxx xxx

"Indeed, the claim of Consuelo Tan that she was not

aware of his previous marriage does not inspire belief,
especially as she had seen that Dr. Mercado had two (2)
children with him. We are convinced that she took the
plunge anyway, relying on the fact that the first wife would
no longer return to Dr. Mercado, she being by then already
living with another man.

"Consuelo Tan can therefore not claim damages in this

case where she was fully conscious of the consequences
of her act. She should have known that she would suffer
humiliation in the event the truth [would] come out, as it did
in this case, ironically because of her personal instigation.
G.R. No. 136467 April 6, 2000
ANTONIA ARMAS Y CALISTERIO, petitioner,
vs.
MARIETTA CALISTERIO, respondent.
VITUG, J.:
On 24 April 1992, Teodorico Calisterio died intestate,
leaving several parcels of land with an estimated value of
P604,750.00. Teodorico was survived by his wife, herein
respondent Marietta Calisterio.
Teodorico was the second husband of Marietta who had
previously been married to James William Bounds on 13
January 1946 at Caloocan City. James Bounds
disappeared without a trace on 11 February 1947.
Teodorico and Marietta were married eleven years later, or
on 08 May 1958, without Marietta having priorly secured a
court declaration that James was presumptively dead.
On 09 October 1992, herein petitioner Antonia Armas y
Calisterio, a surviving sister of Teodorico, filed with the
Regional Trial Court ("RTC") of Quezon City, Branch 104,
a petition entitled, "In the Matter of Intestate Estate of the
Deceased Teodorico Calisterio y Cacabelos, Antonia
Armas, Petitioner," claiming to be inter alia, the sole
surviving heir of Teodorico Calisterio, the marriage
between the latter and respondent Marietta Espinosa
Calisterio being allegedly bigamous and thereby null and
void. She prayed that her son Sinfroniano C. Armas, Jr.,
be appointed administrator, without bond, of the estate of
the deceased and that the inheritance be adjudicated to
her after all the obligations of the estate would have been
settled.
Respondent Marietta opposed the petition. Marietta stated
that her first marriage with James Bounds had been
dissolved due to the latter's absence, his whereabouts
being unknown, for more than eleven years before she
contracted her second marriage with Teodorico.
Contending to be the surviving spouse of Teodorico, she
sought priority in the administration of the estate of the
decedent.
On 05 February 1993, the trial court issued an order
appointing jointly Sinfroniano C. Armas, Jr., and
respondent Marietta administrator and administratrix,
respectively, of the intestate estate of Teodorico.
On 17 January 1996, the lower court handed down its
decision in favor of petitioner Antonia; it adjudged:
WHEREFORE, judgment is hereby rendered finding for
the petitioner and against the oppositor whereby herein
petitioner, Antonia Armas y Calisterio, is declared as the
sole heir of the estate of Teodorico Calisterio y
Cacabelos. 1
Respondent Marietta appealed the decision of the trial
court to the Court of Appeals, formulating that —
1. The trial court erred in applying the provisions of the
Family Code in the instant case despite the fact that the
controversy arose when the New Civil Code was the law in
force.
2. The trial court erred in holding that the marriage
between oppositor-appellant and the deceased Teodorico
Calisterio is bigamous for failure of the former to secure a
decree of the presumptive death of her first spouse.
3. The trial court erred in not holding that the property
situated at No. 32 Batangas Street, San Francisco del
Monte, Quezon City, is the conjugal property of the
oppositor-appellant and the deceased Teodorico
Calisterio.
4. The trial court erred in holding that oppositor-appellant
is not a legal heir of deceased Teodorico Calisterio.
5. The trial court erred in not holding that letters of
administration should be granted solely in favor of
oppositor-appellant. 2
On 31 August 1998, the appellate court, through Mr.
Justice Conrado M. Vasquez, Jr., promulgated its now
assailed decision, thus:
IN VIEW OF ALL THE FOREGOING, the Decision
appealed from is REVERSED AND SET ASIDE, and a
new one entered declaring as follows:
(a) Marietta Calisterio's marriage to Teodorico remains
valid;
(b) The house and lot situated at #32 Batangas Street,
San Francisco del Monte, Quezon City, belong to the
conjugal partnership property with the concomitant
obligation of the partnership to pay the value of the land to
Teodorico's estate as of the time of the taking;
(c) Marietta Calisterio, being Teodorico's compulsory heir,
is entitled to one half of her husband's estate, and
Teodorico's sister, herein petitioner Antonia Armas and
her children, to the other half;
(d) The trial court is ordered to determine the competence
of Marietta E. Calisterio to act as administrator of
Teodorico's estate, and if so found competent and willing,
that she be appointed as such; otherwise, to determine
who among the deceased's next of kin is competent and
willing to become the administrator of the estate. 3
On 23 November 1998, the Court of Appeals denied
petitioner's motion for reconsideration, prompting her to
interpose the present appeal. Petitioner asseverates:
It is respectfully submitted that the decision of the Court of
Appeals reversing and setting aside the decision of the
trial court is not in accord with the law or with the
applicable decisions of this Honorable Court. 4
It is evident that the basic issue focuses on the validity of
the marriage between the deceased Teodorico and
respondent Marietta, that, in turn, would be determinative
of her right as a surviving spouse.
The marriage between the deceased Teodorico and
respondent Marietta was solemnized on 08 May 1958. The
law in force at that time was the Civil Code, not the Family
Code which took effect only on 03 August 1988. Article
256 of the Family Code itself limited its retroactive
5
governance only to cases where it thereby would not
prejudice or impair vested or acquired rights in accordance
with the Civil Code or other laws.
Verily, the applicable specific provision in the instant
controversy is Article 83 of the New Civil Code which
provides:
Art. 83. Any marriage subsequently contracted by any
person during the lifetime of the first spouse of such
person with any person other than such first spouse shall
be illegal and void from its performance, unless:
(1) The first marriage was annulled or dissolved; or
(2) The first spouse had been absent for seven
consecutive years at the time of the second marriage
without the spouse present having news of the absentee
being alive, or if the absentee, though he has been absent
for less than seven years, is generally considered as dead
and believed to be so by the spouse present at the time of
contracting such subsequent marriage, or if the absentee
is presumed dead according to articles 390 and 391. The
marriage so contracted shall be valid in any of the three
cases until declared null and void by a competent court.
Under the foregoing provisions, a subsequent marriage
contracted during the lifetime of the first spouse is illegal
and void ab initio unless the prior marriage is first annulled
or dissolved. Paragraph (2) of the law gives exceptions
from the above rule. For the subsequent marriage referred
to in the three exceptional cases therein provided, to be
held valid, the spouse present (not the absentee spouse)
so contracting the later marriage must have done so in
good faith. Bad faith imports a dishonest purpose or
6
some moral obliquity and conscious doing of wrong — it
partakes of the nature of fraud, a breach of a known duty
through some motive of interest or ill will. The Court does
7 Appeals in CA G.R. CV No. 51574 is AFFIRMED except
not find these circumstances to be here extant.
A judicial declaration of absence of the absentee spouse is
not necessary as long as the prescribed period of
8
absence is met. It is equally noteworthy that the marriage
in these exceptional cases are, by the explicit mandate of
Article 83, to be deemed valid "until declared null and void
by a competent court." It follows that the burden of proof
would be, in these cases, on the party assailing the
second marriage.
In contrast, under the 1988 Family Code, in order that a
subsequent bigamous marriage may exceptionally be
considered valid, the following conditions must concur; viz.:
(a) The prior spouse of the contracting party must have
been absent for four consecutive years, or two years
where there is danger of death under the circumstances
stated in Article 391 of the Civil Code at the time of
disappearance; (b) the spouse present has a well-founded
belief that the absent spouse is already dead; and (c) there
is, unlike the old rule, a judicial declaration of presumptive
death of the absentee for which purpose the spouse
present can institute a summary proceeding in court to ask
for that declaration. The last condition is consistent and in
consonance with the requirement of judicial intervention in
subsequent marriages as so provided in Article 41 , in 9
relation to Article 40, of the Family Code.
10
In the case at bar, it remained undisputed that respondent
Marietta's first husband, James William Bounds, had been
absent or had disappeared for more than eleven years
before she entered into a second marriage in 1958 with
the deceased Teodorico Calisterio. This second marriage,
having been contracted during the regime of the Civil
Code, should thus be deemed valid notwithstanding the
absence of a judicial declaration of presumptive death of
James Bounds.
The conjugal property of Teodorico and Marietta, no
evidence having been adduced to indicate another
property regime between the spouses, pertains to them in
common. Upon its dissolution with the death of Teodorico,
the property should rightly be divided in two equal portions
— one portion going to the surviving spouse and the other
portion to the estate of the deceased spouse. The
successional right in intestacy of a surviving spouse over
the net estate of the deceased, concurring with legitimate
11
brothers and sisters or nephews and nieces (the latter by
right of representation), is one-half of the inheritance, the
brothers and sisters or nephews and nieces, being entitled
to the other half. Nephews and nieces, however, can only
succeed by right of representation in the presence of
uncles and aunts; alone, upon the other hand, nephews
and nieces can succeed in their own right which is to say
that brothers or sisters exclude nephews and nieces
except only in representation by the latter of their parents
who predecease or are incapacitated to succeed. The
appellate court has thus erred in granting, in paragraph (c)
of the dispositive portion of its judgment, successional
rights, to petitioner's children, along with their own mother
Antonia who herself is invoking successional rights over
the estate of her deceased brother. 1âwphi1
WHEREFORE, the assailed judgment of the Court of
insofar only as it decreed in paragraph (c) of the
dispositive portion thereof that the children of petitioner are
likewise entitled, along with her, to the other half of the
inheritance, in lieu of which, it is hereby DECLARED that
said one-half share of the decedent's estate pertains
solely to petitioner to the exclusion of her own children. No
costs.
SO ORDERED.
G.R. No. 145226 February 06, 2004
LUCIO MORIGO y CACHO, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
DECISION
QUISUMBING, J.:
This petition for review on certiorari seeks to reverse the
decision dated October 21, 1999 of the Court of Appeals
1 denied upon motion for reconsideration by the prosecution.
in CA-G.R. CR No. 20700, which affirmed the judgment
dated August 5, 1996 of the Regional Trial Court (RTC) of
Bohol, Branch 4, in Criminal Case No. 8688. The trial court
found herein petitioner Lucio Morigo y Cacho guilty
beyond reasonable doubt of bigamy and sentenced him to
a prison term of seven (7) months of prision
correccional as minimum to six (6) years and one (1) day
of prision mayor as maximum. Also assailed in this petition
is the resolution of the appellate court, dated September
3
25, 2000, denying Morigo’s motion for reconsideration.
The facts of this case, as found by the court a quo, are as
follows:
Appellant Lucio Morigo and Lucia Barrete were
boardmates at the house of Catalina Tortor at Tagbilaran
City, Province of Bohol, for a period of four (4) years (from
1974-1978).
After school year 1977-78, Lucio Morigo and Lucia Barrete
lost contact with each other.
In 1984, Lucio Morigo was surprised to receive a card from
Lucia Barrete from Singapore. The former replied and after
an exchange of letters, they became sweethearts.
In 1986, Lucia returned to the Philippines but left again for
Canada to work there. While in Canada, they maintained
constant communication.
In 1990, Lucia came back to the Philippines and proposed
to petition appellant to join her in Canada. Both agreed to
get married, thus they were married on August 30, 1990 at
the Iglesia de Filipina Nacional at Catagdaan, Pilar, Bohol.
On September 8, 1990, Lucia reported back to her work in
Canada leaving appellant Lucio behind.
On August 19, 1991, Lucia filed with the Ontario Court
(General Division) a petition for divorce against appellant
which was granted by the court on January 17, 1992 and
to take effect on February 17, 1992.
On October 4, 1992, appellant Lucio Morigo married Maria
Jececha Lumbago at the Virgen sa Barangay Parish,
4
Tagbilaran City, Bohol.
On September 21, 1993, accused filed a complaint for
judicial declaration of nullity of marriage in the Regional
Trial Court of Bohol, docketed as Civil Case No. 6020. The
complaint seek (sic) among others, the declaration of
nullity of accused’s marriage with Lucia, on the ground that
no marriage ceremony actually took place.
On October 19, 1993, appellant was charged with Bigamy
in an Information filed by the City Prosecutor of Tagbilaran
5
[City], with the Regional Trial Court of Bohol. 6
The petitioner moved for suspension of the arraignment on
the ground that the civil case for judicial nullification of his
marriage with Lucia posed a prejudicial question in the
bigamy case. His motion was granted, but subsequently
2 When arraigned in the bigamy case, which was docketed
as Criminal Case No. 8688, herein petitioner pleaded not
guilty to the charge. Trial thereafter ensued.
On August 5, 1996, the RTC of Bohol handed down its
judgment in Criminal Case No. 8688, as follows:
WHEREFORE, foregoing premises considered, the Court
finds accused Lucio Morigo y Cacho guilty beyond
reasonable doubt of the crime of Bigamy and sentences
him to suffer the penalty of imprisonment ranging from
Seven (7) Months of Prision Correccional as minimum to
Six (6) Years and One (1) Day of Prision Mayor as
maximum.
SO ORDERED. 7
In convicting herein petitioner, the trial court discounted
petitioner’s claim that his first marriage to Lucia was null
and void ab initio. Following Domingo v. Court of Appeals, 8
the trial court ruled that want of a valid marriage ceremony
is not a defense in a charge of bigamy. The parties to a
marriage should not be allowed to assume that their
marriage is void even if such be the fact but must first
secure a judicial declaration of the nullity of their marriage
before they can be allowed to marry again.
Anent the Canadian divorce obtained by Lucia, the trial
court cited Ramirez v. Gmur, which held that the court of a
9
country in which neither of the spouses is domiciled and in
which one or both spouses may resort merely for the
purpose of obtaining a divorce, has no jurisdiction to
determine the matrimonial status of the parties. As such, a
divorce granted by said court is not entitled to recognition
anywhere. Debunking Lucio’s defense of good faith in
contracting the second marriage, the trial court stressed
that following People v. Bitdu, everyone is presumed to
10
know the law, and the fact that one does not know that his
act constitutes a violation of the law does not exempt him
from the consequences thereof.
Seasonably, petitioner filed an appeal with the Court of
Appeals, docketed as CA-G.R. CR No. 20700.
Meanwhile, on October 23, 1997, or while CA-G.R. CR No.
20700 was pending before the appellate court, the trial
court rendered a decision in Civil Case No. 6020 declaring
the marriage between Lucio and Lucia void ab initio since
no marriage ceremony actually took place. No appeal was
taken from this decision, which then became final and
executory.
On October 21, 1999, the appellate court decided CA-G.R.
CR No. 20700 as follows:
WHEREFORE, finding no error in the appealed decision,
the same is hereby AFFIRMED in toto.
SO ORDERED. 11
In affirming the assailed judgment of conviction, the
appellate court stressed that the subsequent declaration of
nullity of Lucio’s marriage to Lucia in Civil Case No. 6020
could not acquit Lucio. The reason is that what is sought to
be punished by Article 349 of the Revised Penal Code is
12
the act of contracting a second marriage before the first
marriage had been dissolved. Hence, the CA held, the fact
that the first marriage was void from the beginning is not a
valid defense in a bigamy case.
The Court of Appeals also pointed out that the divorce
decree obtained by Lucia from the Canadian court could
not be accorded validity in the Philippines, pursuant to
Article 15 of the Civil Code and given the fact that it is
13
contrary to public policy in this jurisdiction. Under Article
17 of the Civil Code, a declaration of public policy cannot
14
be rendered ineffectual by a judgment promulgated in a
foreign jurisdiction.
Petitioner moved for reconsideration of the appellate
court’s decision, contending that the doctrine in Mendiola v.
People, allows mistake upon a difficult question of law
15
(such as the effect of a foreign divorce decree) to be a
basis for good faith.
On September 25, 2000, the appellate court denied the
motion for lack of merit. However, the denial was by a
16
split vote. The ponente of the appellate court’s original
decision in CA-G.R. CR No. 20700, Justice Eugenio S.
Labitoria, joined in the opinion prepared by Justice
Bernardo P. Abesamis. The dissent observed that as the
first marriage was validly declared void ab initio, then there
was no first marriage to speak of. Since the date of the
nullity retroacts to the date of the first marriage and since
herein petitioner was, in the eyes of the law, never married,
he cannot be convicted beyond reasonable doubt of
bigamy.
The present petition raises the following issues for our
resolution:
A.
WHETHER OR NOT THE COURT OF APPEALS ERRED
IN FAILING TO APPLY THE RULE THAT IN CRIMES
PENALIZED UNDER THE REVISED PENAL CODE,
CRIMINAL INTENT IS AN INDISPENSABLE REQUISITE.
COROLLARILY, WHETHER OR NOT THE COURT OF
APPEALS ERRED IN FAILING TO APPRECIATE [THE]
PETITIONER’S LACK OF CRIMINAL INTENT WHEN HE
CONTRACTED THE SECOND MARRIAGE.
B.
WHETHER OR NOT THE COURT OF APPEALS ERRED
IN HOLDING THAT THE RULING IN PEOPLE VS. BITDU
(58 PHIL. 817) IS APPLICABLE TO THE CASE AT BAR.
C.
WHETHER OR NOT THE COURT OF APPEALS ERRED
IN FAILING TO APPLY THE RULE THAT EACH AND
EVERY CIRCUMSTANCE FAVORING THE INNOCENCE
OF THE ACCUSED MUST BE TAKEN INTO ACCOUNT. 17
To our mind, the primordial issue should be whether or not
petitioner committed bigamy and if so, whether his
defense of good faith is valid.
The petitioner submits that he should not be faulted for
relying in good faith upon the divorce decree of the Ontario
court. He highlights the fact that he contracted the second
marriage openly and publicly, which a person intent upon
bigamy would not be doing. The petitioner further argues
that his lack of criminal intent is material to a conviction or
acquittal in the instant case. The crime of bigamy, just like
other felonies punished under the Revised Penal Code,
is mala in se, and hence, good faith and lack of criminal
intent are allowed as a complete defense. He stresses that
there is a difference between the intent to commit the
crime and the intent to perpetrate the act. Hence, it does
not necessarily follow that his intention to contract a
second marriage is tantamount to an intent to commit
bigamy.
For the respondent, the Office of the Solicitor General
(OSG) submits that good faith in the instant case is a
convenient but flimsy excuse. The Solicitor General relies
upon our ruling in Marbella-Bobis v. Bobis, which held
18
that bigamy can be successfully prosecuted provided all
the elements concur, stressing that under Article 40 of the
19
Family Code, a judicial declaration of nullity is a must
before a party may re-marry. Whether or not the petitioner
was aware of said Article 40 is of no account as everyone
is presumed to know the law. The OSG counters that
petitioner’s contention that he was in good faith because
he relied on the divorce decree of the Ontario court is
negated by his act of filing Civil Case No. 6020, seeking a
judicial declaration of nullity of his marriage to Lucia.
Before we delve into petitioner’s defense of good faith and
lack of criminal intent, we must first determine whether all
the elements of bigamy are present in this case.
In Marbella-Bobis v. Bobis, we laid down the elements of
20
bigamy thus:
(1) the offender has been legally married;
(2) the first marriage has not been legally dissolved, or in
case his or her spouse is absent, the absent spouse has
not been judicially declared presumptively dead;
(3) he contracts a subsequent marriage; and
(4) the subsequent marriage would have been valid had it
not been for the existence of the first.
Applying the foregoing test to the instant case, we note
that during the pendency of CA-G.R. CR No. 20700, the
RTC of Bohol Branch 1, handed down the following
decision in Civil Case No. 6020, to wit:
WHEREFORE, premises considered, judgment is hereby
rendered decreeing the annulment of the marriage entered
into by petitioner Lucio Morigo and Lucia Barrete on
August 23, 1990 in Pilar, Bohol and further directing the
Local Civil Registrar of Pilar, Bohol to effect the
cancellation of the marriage contract.
SO ORDERED. 21
The trial court found that there was no actual marriage
ceremony performed between Lucio and Lucia by a
solemnizing officer. Instead, what transpired was a mere
signing of the marriage contract by the two, without the
presence of a solemnizing officer. The trial court thus held
that the marriage is void ab initio, in accordance with
Articles 3 and 4 of the Family Code. As the dissenting
22 23
opinion in CA-G.R. CR No. 20700, correctly puts it, "This
simply means that there was no marriage to begin with;
and that such declaration of nullity retroacts to the date of
the first marriage. In other words, for all intents and
purposes, reckoned from the date of the declaration of the
first marriage as void ab initio to the date of the celebration
of the first marriage, the accused was, under the eyes of
the law, never married." The records show that no appeal
24
was taken from the decision of the trial court in Civil Case
No. 6020, hence, the decision had long become final and
executory.
The first element of bigamy as a crime requires that the
accused must have been legally married. But in this case,
legally speaking, the petitioner was never married to Lucia
Barrete. Thus, there is no first marriage to speak of. Under
the principle of retroactivity of a marriage being declared
void ab initio, the two were never married "from the
beginning." The contract of marriage is null; it bears no
legal effect. Taking this argument to its logical conclusion,
for legal purposes, petitioner was not married to Lucia at
the time he contracted the marriage with Maria Jececha.
The existence and the validity of the first marriage being
an essential element of the crime of bigamy, it is but
logical that a conviction for said offense cannot be
sustained where there is no first marriage to speak of. The
petitioner, must, perforce be acquitted of the instant
charge.
In the instant case, however, no marriage ceremony at all
was performed by a duly authorized solemnizing officer.
Petitioner and Lucia Barrete merely signed a marriage
contract on their own. The mere private act of signing a
marriage contract bears no semblance to a valid marriage
and thus, needs no judicial declaration of nullity. Such act
alone, without more, cannot be deemed to constitute an
ostensibly valid marriage for which petitioner might be held
liable for bigamy unless he first secures a judicial
declaration of nullity before he contracts a subsequent
marriage.
The law abhors an injustice and the Court is mandated to
liberally construe a penal statute in favor of an accused
and weigh every circumstance in favor of the presumption
of innocence to ensure that justice is done. Under the
circumstances of the present case, we held that petitioner
has not committed bigamy. Further, we also find that we
need not tarry on the issue of the validity of his defense of
good faith or lack of criminal intent, which is now moot and
academic.
WHEREFORE, the instant petition is GRANTED. The
assailed decision, dated October 21, 1999 of the Court of
Appeals in CA-G.R. CR No. 20700, as well as the
resolution of the appellate court dated September 25,
2000, denying herein petitioner’s motion for
reconsideration, is REVERSED and SET ASIDE. The
petitioner Lucio Morigo y Cacho is ACQUITTED from the
charge of BIGAMY on the ground that his guilt has not
been proven with moral certainty.
SO ORDERED.

The present case is analogous to, but must be

distinguished from Mercado v. Tan. In the latter case, the
25

judicial declaration of nullity of the first marriage was

likewise obtained after the second marriage was already
celebrated. We held therein that:

A judicial declaration of nullity of a previous marriage is

necessary before a subsequent one can be legally
contracted. One who enters into a subsequent marriage
without first obtaining such judicial declaration is guilty of
bigamy. This principle applies even if the earlier union is
characterized by statutes as "void." 26

It bears stressing though that in Mercado, the first

marriage was actually solemnized not just once, but twice:
first before a judge where a marriage certificate was duly
issued and then again six months later before a priest in
religious rites. Ostensibly, at least, the first marriage
appeared to have transpired, although later declared
void ab initio.
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," and second, Nolasco's attempt to
2
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, the following crucial
7
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. Also, Article 41 of the Family Code imposes a
8
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. The Family Code, upon the
9
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, is instructive as to degree of
12
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, he secured another
14
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). (Emphasis supplied)
15
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 too 17
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
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 family and
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, the Court stressed
23

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. As noted
18
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. Also, respondent failed to
19
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
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

find his wife. The circumstances of Janet Monica's

departure and respondent's subsequent behavior make it
In fine, respondent failed to establish that he had the
very difficult to regard the claimed belief that Janet Monica
well-founded belief required by law that his absent wife
was dead a well-founded one.
was already dead that would sustain the issuance of a
court order declaring Janet Monica Parker presumptively
In Goitia v. Campos-Rueda, the Court stressed that:
20
dead.

. . . Marriage is an institution, the maintenance of which in WHEREFORE, the Decision of the Court of Appeals dated
its purity the public is deeply interested. It is a relationship 23 February 1990, affirming the trial court's decision
for life and the parties cannot terminate it at any shorter declaring Janet Monica Parker presumptively dead is
period by virtue of any contract they hereby REVERSED and both Decisions are hereby
make. . . . . (Emphasis supplied)
21
NULLIFIED and SET ASIDE. Costs against respondent.

By the same token, the spouses should not be allowed, by Bidin, Davide, Jr., Romero and Melo, JJ., concur.
the simple expedient of agreeing that one of them leave
the conjugal abode and never to return again, to
Gutierrez, Jr. J., is on leave.
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, the Court warned against such

22

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
G.R. No. 159614 December 9, 2005
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
THE HONORABLE COURT OF APPEALS (TENTH
DIVISION), and ALAN B. ALEGRO, Respondents.
DECISION
CALLEJO, SR., J.:
On March 29, 2001, Alan B. Alegro filed a petition in the
Regional Trial Court (RTC) of Catbalogan, Samar, Branch
27, for the declaration of presumptive death of his wife,
Rosalia (Lea) A. Julaton.
In an Order dated April 16, 2001, the court set the petition
1
for hearing on May 30, 2001 at 8:30 a.m. and directed that
a copy of the said order be published once a week for
three (3) consecutive weeks in the Samar Reporter, a
newspaper of general circulation in the Province of Samar,
and
that a copy be posted in the court’s bulletin board for at
least three weeks before the next scheduled hearing. The
court also directed that copies of the order be served on
the Solicitor General, the Provincial Prosecutor of Samar,
and Alan, through counsel, and that copies be sent to Lea
by registered mail. Alan complied with all the foregoing
jurisdictional requirements.2
On May 28, 2001, the Republic of the Philippines, through
the Office of the Solicitor General (OSG), filed a Motion to
Dismiss the petition, which was, however, denied by the
3 the petition. The fallo of the decision reads:
court for failure to comply with Rule 15 of the Rules of
Court.4
At the hearing, Alan adduced evidence that he and Lea
were married on January 20, 1995 in Catbalogan, Samar.
He testified that, on February 6, 1995, Lea arrived home
late in the evening and he berated her for being always out
of their house. He told her that if she enjoyed the life of a
single person, it would be better for her to go back to her
parents. Lea did not reply. Alan narrated that, when he
6
reported for work the following day, Lea was still in the
house, but when he arrived home later in the day, Lea was
nowhere to be found. Alan thought that Lea merely went
7
to her parents’ house in Bliss, Sto. Niño, Catbalogan,
Samar. However, Lea did not return to their house
8
anymore.
Alan further testified that, on February 14, 1995, after his
work, he went to the house of Lea’s parents to see if she
was there, but he was told that she was not there. He also
went to the house of Lea’s friend, Janeth Bautista,
at Barangay Canlapwas, but he was informed by Janette’s
brother-in-law, Nelson Abaenza, that Janeth had left for
Manila. When Alan went back to the house of his
9
parents-in-law, he learned from his father-in-law that Lea
had been to their house but that she left without notice. 10
Alan sought the help of Barangay Captain Juan Magat,
who promised to help him locate his wife. He also inquired
from his friends of Lea’s whereabouts but to no avail. 11
Sometime in June 1995, he decided to go to Manila to look
for Lea, but his mother asked him to leave after the town
fiesta of Catbalogan, hoping that Lea may come home for
the fiesta. Alan agreed. However, Lea did not show up.
12
Alan then left for Manila on August 27, 1995. He went to a
house in Navotas where Janeth, Lea’s friend, was staying.
When asked where Lea was, Janeth told him that she had
not seen her. He failed to find out Lea’s whereabouts
13
despite his repeated talks with Janeth. Alan decided to
work as a part-time taxi driver. On his free time, he would
look for Lea in the malls but still to no avail. He returned to
Catbalogan in 1997 and again looked for his wife but
failed.
14
On June 20, 2001, Alan reported Lea’s disappearance to
the local police station. The police authorities issued an
15
Alarm Notice on July 4, 2001. Alan also reported Lea’s
16
disappearance to the National Bureau of Investigation
(NBI) on July 9, 2001. 17
Barangay Captain Juan Magat corroborated the testimony
of Alan. He declared that on February 14, 1995, at 2:00
p.m., Alan inquired from him if Lea passed by his house
and he told Alan that she did not. Alan also told him that
Lea had disappeared. He had not seen Lea in
the barangay ever since. Lea’s father, who was
18
his compadre and the owner of Radio DYMS, told him that
he did not know where Lea was. 19
After Alan rested his case, neither the Office of the
Provincial Prosecutor nor the Solicitor General adduced
evidence in opposition to the petition.
On January 8, 2002, the court rendered judgment granting
WHEREFORE, and in view of all the foregoing, petitioner’s
absent spouse ROSALIA JULATON is hereby declared
PRESUMPTIVELY DEAD for the purpose of the
5 petitioner’s subsequent marriage under Article 41 of the
Family Code of the Philippines, without prejudice to the
effect of reappearance of the said absent spouse.
SO ORDERED. 20
The OSG appealed the decision to the Court of Appeals
(CA) which rendered judgment on August 4, 2003,
affirming the decision of the RTC. The CA cited the ruling
21
of this Court in Republic v. Nolasco. 22
The OSG filed a petition for review on certiorari of the CA’s
decision alleging that respondent Alan B. Alegro failed to
prove that he had a well-founded belief that Lea was
already dead. It averred that the respondent failed to
23
exercise reasonable and diligent efforts to locate his wife.
The respondent even admitted that Lea’s father told him
on February 14, 1995 that Lea had been to their house but
left without notice. The OSG pointed out that the
respondent reported his wife’s disappearance to the local
police and also to the NBI only after the petitioner filed a
motion to dismiss the petition. The petitioner avers that, as
gleaned from the evidence, the respondent did not really
want to find and locate Lea. Finally, the petitioner averred:
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
x x x declared null and void under Article 36 of the Family
Code resort to Article 41 of the Family Code for relief
because of the x x x summary nature of its proceedings.
It is the policy of the State to protect and strengthen the
family as a basic social institution. Marriage is the
foundation of the family. Since marriage is an inviolable
social institution that the 1987 Constitution seeks to
protect from dissolution at the whim of the parties. For
respondent’s failure to prove that he had a well-founded
belief that his wife is already
dead and that he exerted the required amount of diligence
in searching for his missing wife, the petition for
declaration of presumptive death should have been denied
by the trial court and the Honorable Court of Appeals. 24
The petition is meritorious.
Article 41 of the Family Code of the Philippines reads:
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 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. 25
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." 26
Belief is a state of the mind or condition prompting the
doing of an overt act. It may be proved by direct evidence
or circumstantial evidence which may tend, even in a slight
degree, to elucidate the inquiry or assist to a determination
probably founded in truth. Any fact or circumstance
relating to the character, habits, conditions, attachments,
prosperity and objects of life which usually control the
conduct of men, and are the motives of their actions, was,
so far as it tends to explain or characterize their
disappearance or throw light on their intentions,
competence 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. 28
Although testimonial evidence may suffice to prove the
well-founded belief of the present spouse that the absent
spouse is already dead, in Republic v. Nolasco, the Court
29
warned against collusion between the parties when they
find it impossible to dissolve the marital bonds through
existing legal means. It is also the maxim that "men readily
believe what they wish to be true."
In this case, the respondent failed to present a witness
other than Barangay Captain Juan Magat. The respondent
even failed to present Janeth Bautista or Nelson Abaenza
or any other person from whom he allegedly made
inquiries about Lea to corroborate his testimony. On the
other hand, the respondent admitted that when he
returned to the house of his parents-in-law on February 14,
1995, his father-in-law told him that Lea had just been
there but that she left without notice.
The respondent declared that Lea left their abode on
February 7, 1995 after he chided her for coming home late
and for being always out of their house, and told her that it
would be better for her to go home to her parents if she
enjoyed the life of a single person. Lea, thus, left their
conjugal abode and never returned. Neither did she
communicate with the respondent after leaving the
conjugal abode because of her resentment to the
chastisement she received from him barely a month after
their marriage. What is so worrisome is that, the
respondent failed to make inquiries from his parents-in-law
regarding Lea’s whereabouts before filing his petition in
the RTC. It could have enhanced the credibility of the
respondent had he made inquiries from his parents-in-law
about Lea’s whereabouts considering that Lea’s father
was the owner of Radio DYMS.
The respondent did report and seek the help of the local
police authorities and the NBI to locate Lea, but it was only
an afterthought. He did so only after the OSG filed its
notice to dismiss his petition in the RTC.
In sum, the Court finds and so holds that the respondent
failed to prove that he had a well-founded belief, before he
filed his petition in the RTC, that his spouse Rosalia (Lea)
Julaton was already dead.
IN LIGHT OF ALL THE FOREGOING, the petition
is GRANTED. The Decision of the Court of Appeals in
CA-G.R. CV No. 73749 is REVERSED and SET
ASIDE. Consequently, the Regional Trial Court of
Catbalogan, Samar, Branch 27,
is ORDERED to DISMISS the respondent’s petition.
27
SO ORDERED.
Article 48
G.R. No. 116607 April 10, 1996
EMILIO R. TUASON, petitioner,
vs.
COURT OF APPEALS and MARIA VICTORIA L.
TUASON, respondents.
PUNO, J.:p
This petition for review on certiorari seeks to annul and set
aside the decision dated July 29, 1994 of the Court of
Appeals in CA-G.R. CV No. 37925 denying petitioner's
appeal from an order of the Regional Trial Court, Branch
149, Makati in Civil Case No. 3769.
This case arose from the following facts:
In 1989, private respondent Maria Victoria Lopez Tuason
filed with the Regional Trial Court, Branch 149, Makati a
petition for annulment or declaration of nullity of her
marriage to petitioner Emilio R. Tuason. In her complaint,
private respondent alleged that she and petitioner were
married on June 3, 1972 and from this union, begot two
children; that at the time of the marriage, petitioner was
already psychologically incapacitated to comply with his
essential marital obligations which became manifest
afterward and resulted in violent fights between husband
and wife; that in one of their fights, petitioner inflicted
physical injuries on private respondent which impelled her
to file a criminal case for physical injuries against him; that
petitioner used prohibited drugs, was apprehended by the
authorities and sentenced to a one-year suspended
penalty and has not been rehabilitated; that petitioner was
a womanizer, and in 1984, he left the conjugal home and
cohabited with three women in succession, one of whom
he presented to the public as his wife; that after he left the
conjugal dwelling, petitioner gave minimal support to the
family and even refused to pay for the tuition fees of their
children compelling private respondent to accept
donations and dole-outs from her family and friends; that
petitioner likewise became a spendthrift and abused his
administration of the conjugal partnership by alienating
some of their assets and incurring large obligations with
banks, credit card companies and other financial
institutions, without private respondent's consent; that
attempts at reconciliation were made but they all failed
because of petitioner's refusal to reform. In addition to her
prayer for annulment of marriage, private respondent
prayed for powers of administration to save the conjugal
properties from further dissipation. 1
Petitioner answered denying the imputations against him.
As affirmative defense, he claimed that he and private
respondent were a normal married couple during the first
ten years of their marriage and actually begot two children
during this period; that it was only in 1982 that they began
to have serious personal differences when his wife did not
accord the respect and dignity due him as a husband but
treated him like a persona non grata; that due to the
"extreme animosities " between them, he temporarily left
the conjugal home for a "cooling-off period" in 1984; that it
is private respondent who had been taking prohibited
drugs and had a serious affair with another man; that
petitioner's work as owner and operator of a radio and
television station exposed him to malicious gossip linking
him to various women in media and the entertainment
world; and that since 1984, he experienced financial
reverses in his business and was compelled, with the
knowledge of his wife, to dispose of some of the conjugal
shares in exclusive golf and country clubs. Petitioner
petitioned the court to allow him to return to the conjugal
home and continue his administration of the conjugal
partnership.
After the issues were joined, trial commenced on March 30,
1990. Private respondent presented four witnesses,
namely, herself; Dr. Samuel Wiley, a Canon Law expert
and marriage counselor of both private respondent and
petitioner; Ms. Adelita Prieto, a close friend of the spouses,
and Atty. Jose F. Racela IV, private respondent's counsel.
Private respondent likewise submitted documentary
evidence consisting of newspaper articles of her
husband's relationship with other women, his
apprehension by the authorities for illegal possession of
drugs; and copies of a prior a church annulment
decree. The parties' marriage was clerically annulled by
2
the Tribunal Metropolitanum Matrimonial which was
affirmed by the National Appellate Matrimonial Tribunal in
1986. 3
During presentation of private respondent's evidence,
petitioner, on April 18, 1990, filed his Opposition to private
respondent's petition for appointment as administratrix of
the conjugal partnership of gains.
After private respondent rested her case, the trial court
scheduled the reception of petitioner's evidence on May
11, 1990.
On May 8, 1990, two days before the scheduled hearing ,
a counsel for petitioner moved for a postponement on the
ground that the principal counsel was out of the country
and due to return on the first week of June. The court
4
granted the motion and reset the hearing to June 8, 1990. 5
On June 8, 1990, petitioner failed to appear. On oral
motion of private respondent, the court declared petitioner
to have waived his right to present evidence and deemed
the case submitted for decision on the basis of the
evidence presented.
On June 29, 1990, the trial court rendered judgment
declaring the nullity of private respondent's marriage to
petitioner and awarding custody of the children to private
respondent. The court ruled:
WHEREFORE, in view of the foregoing, the marriage
contracted by Ma. Victoria L. Tuason and Emilio R.
Tuason on June 3, 1972 is declared null and void ab
initio on the ground of psychological incapacity on the part
of the defendant under Sec. 36 of the Family Code. Let
herein judgment of annulment be recorded in the registry
of Mandaluyong, Metro Manila where the marriage was
contracted and in the registry of Makati, Metro Manila
where the marriage is annulled.
The custody of the two (2) legitimate children of the
plaintiff and the defendant is hereby awarded to the
plaintiff.
The foregoing judgment is without prejudice to the
application of the other effects of annulment as provided
for under Arts . 50 and 51 of the Family Code of the
Philippines. 6 Director of the Narcotics Command, Drug Rehabilitation
Counsel for petitioner received a copy of this decision on
August 24, 1990. No appeal was taken from the decision.
On September 24, 1990, private respondent filed a
"Motion for Dissolution of Conjugal Partnership of Gains
and Adjudication to Plaintiff of the Conjugal
Properties." Petitioner opposed the motion on October 17,
7
1990. 8
Also on the same day, October 17, 1990, petitioner,
through new counsel, filed with the trial court a petition for
relief from judgment of the June 29, 1990 decision.
The trial court denied the petition on August 8, 1991. 9
Petitioner appealed before the Court of Appeals the order
of the trial court denying his petition for relief from
judgment. On July 29, 1994, the Court of Appeals
dismissed the appeal and affirmed the order of the trial
court. 10
Hence this petition.
The threshold issue is whether a petition for relief from
judgment is warranted under the circumstances of the
case.
We rule in the negative.
A petition for relief from judgment is governed by Rule 38,
Section 2 of the Revised Rules of Court which provides:
Sec. 2. Petition to Court of First Instance for relief from
judgment or other proceeding thereof. — When a
judgment or order is entered, or any other proceeding is
taken, against a party in a Court of First Instance through
fraud, accident, mistake, or excusable negligence, he may
file a petition in such court and in the same cause praying
that the judgment, order or proceeding be set aside.
Under the rules, a final and executory judgment or order of
the Regional Trial Court may be set aside on the ground of
fraud, accident, mistake or excusable negligence. In
addition, the petitioner must assert facts showing that he
has a good, substantial and meritorious defense or cause
of action. If the petition is granted, the court shall
11
proceed to hear and determine the case as if a timely
motion for new trial had been granted therein. 12
In the case at bar, the decision annulling petitioner's
marriage to private respondent had already become final
and executory when petitioner failed to appeal during the
reglementary period. Petitioner however claims that the
decision of the trial court was null and void for violation of
his right to due process. He contends he was denied due
process when, after failing to appear on two scheduled
hearings, the trial court deemed him to have waived his
right to present evidence and rendered judgment on the
basis of the evidence for private respondent. Petitioner
justifies his absence at the hearings on the ground that he
was then "confined for medical and/or rehabilitation
reason." In his affidavit of merit before the trial court, he
13
attached a certification by Lt. Col. Plaridel F. Vidal,
Center which states that on March 27, 1990 petitioner was
admitted for treatment of drug dependency at the Drug
Rehabilitation Center at Camp Bagong Diwa, Bicutan,
Taguig, Metro Manila of the Philippine
Constabulary-Integrated National Police. The records,
14
however, show that the former counsel of petitioner did not
inform the trial court of this confinement. And when the
court rendered its decision, the same counsel was out of
the country for which reason the decision became final
and executory as no appeal was taken therefrom. 15
The failure of petitioner's counsel to notify him on time of
the adverse judgment to enable him to appeal therefrom is
negligence which is not excusable. Notice sent to counsel
of record is binding upon the client and the neglect or
failure of counsel to inform him of an adverse judgment
resulting in the loss of his right to appeal is not a ground
for setting aside a judgment valid and regular on its face. 16
Similarly inexcusable was the failure of his former counsel
to inform the trial court of petitioner's confinement and
medical treatment as the reason for his non-appearance at
the scheduled hearings. Petitioner has not given any
reason why his former counsel, intentionally or
unintentionally, did not inform the court of this fact. This led
the trial court to order the case deemed submitted for
decision on the basis of the evidence presented by the
private respondent alone. To compound the negligence of
petitioner's counsel, the order of the trial court was never
assailed via a motion for reconsideration.
Clearly, petitioner cannot now claim that he was deprived
of due process. He may have lost his right to present
evidence but he was not denied his day in court. As the
record show, petitioner, through counsel, actively
participated in the proceedings below. He filed his answer
to the petition, cross-examined private respondent's
witnesses and even submitted his opposition to private
respondent's motion for dissolution of the conjugal
partnership of gains. 71
A petition for relief from judgment is an equitable remedy;
it is allowed only in exception cases where there is no
other available or adequate remedy. When a party has
another remedy available or adequate remedy. When a
party has another remedy available to him, which may be
either a motion for new trial or appeal from an adverse
decision of the trial or appeal from an adverse decision of
the trial court, and he was not prevented by fraud, accident,
mistake or excusable negligence from filing such motion or
taking such appeal, he cannot avail himself of this
petition. Indeed, relief will not be granted to a party who
18
seeks avoidance from the effects of the judgment when
the loss of the remedy at law was due to his own
negligence; otherwise the petition for relief can be used to
revive the right to appeal which had been lost thru
inexcusable negligence. 19
Petitioner also insists that he has a valid and meritorious
defense. He cites the Family Code which provides that in
actions for annulment of marriage or legal separation, the
prosecuting officer should intervene for the state because
the law "looks with disfavor upon the haphazard
declaration of annulment of marriages by default." He
contends that when he failed to appear at the scheduled
hearings, the trial court should have ordered the
prosecuting officer to intervene for the state and inquire as
to the reason for his non-appearance. 20
Articles 48 and 60 of the Family Code read as follows:
Art. 48. In all cases of annulment or declaration of absolute
nullity of marriage, the Court shall order the prosecution
attorney or fiscal assigned to it to appear on behalf of the
State to take steps to prevent collusion between the
parties and to take care that evidence is not fabricated or
suppressed.
In the cases referred to in the preceding paragraph, no
judgment shall be based upon a stipulation of facts or
confession of judgment.
xxx xxx xxx
Art. 60. No decree of legal separation shall be based upon
a stipulation of facts or a confession of judgment.
In any case, the Court shall order the prosecuting attorney
or fiscal assigned to it to take steps to prevent collusion
between the parties and to take care that the evidence is
not fabricated or suppressed. 21
cross-examining the witnesses of private respondent. It is
crystal clear that every stage of the litigation was
characterized by a no-holds barred contest and not by
collusion.
The role of the prosecuting attorney or fiscal in annulment
of marriage and legal separation proceedings is to
determine whether collusion exists between the parties
and to take care that the evidence is not suppressed or
fabricated. Petitioner's vehement opposition to the
annulment proceedings negates the conclusion that
collusion existed between the parties. There is no
allegation by the petitioner that evidence was suppressed
or fabricated by any of the parties. Under these
circumstances, we are convinced that the non-intervention
of a prosecuting attorney to assure lack of collusion
between the contending parties is not fatal to the validity of
the proceedings in the trial court.
Petitioner also refutes the testimonies of private
respondent's witnesses, particularly Dr. Samuel Wiley and
Ms. Adelita Prieto, as biased, incredible and hearsay.
Petitioner alleges that if he were able to present his
evidence, he could have testified that he was not
psychologically incapacitated at the time of the marriage
as indicated by the fact that during their first ten years, he
and private respondent lived together with their children as
one normal and happy family, that he continued supporting
his family even after he left the conjugal dwelling and that
his work as owner and operator of a radio and television
corporation places him in the public eye and makes him a
good subject for malicious gossip linking him with various
women. These facts, according to petitioner, should

disprove the ground for annulment of his marriage to

petitioner.
A grant of annulment of marriage or legal separation by
default is fraught with the danger of collusion. Hence, in
22

Suffice it to state that the finding of the trial court as to the

all cases for annulment, declaration of nullity of marriage
existence or non-existence of petitioner's psychological
and legal separation, the prosecuting attorney or fiscal is
incapacity at the time of the marriage is final and binding
ordered to appear on behalf of the state for the purpose of
on us. Petitioner has not sufficiently shown that the trial
26

preventing any collusion between the parties and to take

court's factual findings and evaluation of the testimonies of
care that their evidence is not fabricated or suppressed. If
private respondent's witnesses vis-a-vis petitioner's
the defendant spouse fails to answer the complaint, the
defenses are clearly and manifestly erroneous. 7 2

court cannot declare him or her in default but instead,

should order the prosecuting attorney to determine if
collusion exists between the parties. The prosecuting
23
IN VIEW WHEREOF, the petition is denied and the
attorney or fiscal may oppose the application for legal decision dated July 29, 1994 of the Court of Appeals in
separation or annulment through the presentation of his CA-G.R. CV No. 37925 is affirmed.
own evidence, if in his opinion, the proof adduced is
dubious and fabricated. Our Constitution is committed to
24 Regalado, Romero and Mendoza, JJ., concur.
the policy of strengthening the family as a basic social
institution. Our family law is based on the policy that
25 Torres, Jr., J., is on leave.
marriage is not a mere contract, but a social institution in
which the state is vitally interested. The state can find no
stronger anchor than on good, solid and happy families.
The break up of families weakens our social and moral
fabric and, hence, their preservation is not the concern
alone of the family members.

The facts in the case at bar do not call for the strict
application of Articles 48 and 60 of the Family Code. For
one, petitioner was not declared in default by the trial court
for failure to answer. Petitioner filed his answer to the
complaint and contested the cause of action alleged by
private respondent. He actively participated in the
proceedings below by filing several pleadings and
G.R. No. 169766 March 30, 2011
ESTRELLITA JULIANO-LLAVE, Petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, HAJA PUTRI
ZORAYDA A. TAMANO and ADIB AHMAD A.
TAMANO, Respondents.
DECISION
DEL CASTILLO, J.:
A new law ought to affect the future, not what is past.
Hence, in the case of subsequent marriage laws, no
vested rights shall be impaired that pertain to the
protection of the legitimate union of a married couple.
This petition for review on certiorari assails the
Decision1 dated August 17, 2004 of the Court of Appeals
(CA) in CA-G.R. CV No. 61762 and its subsequent
Resolution2 dated September 13, 2005, which affirmed the
Decision of the Regional Trial Court (RTC) of Quezon City,
Branch 89 declaring petitioner Estrellita Juliano-Llave’s
(Estrellita) marriage to Sen. Mamintal A.J. Tamano (Sen.
Tamano) as void ab initio.
Factual Antecedents
Around 11 months before his death, Sen. Tamano married
Estrellita twice – initially under the Islamic laws and
tradition on May 27, 1993 in Cotabato City3 and,
subsequently, under a civil ceremony officiated by an RTC
Judge at Malabang, Lanao del Sur on June 2, 1993.4 In
their marriage contracts, Sen. Tamano’s civil status was
indicated as ‘divorced.’
Since then, Estrellita has been representing herself to the
whole world as Sen. Tamano’s wife, and upon his death,
his widow.
On November 23, 1994, private respondents Haja Putri
Zorayda A. Tamano (Zorayda) and her son Adib Ahmad A.
Tamano (Adib), in their own behalf and in behalf of the rest
of Sen. Tamano’s legitimate children with Zorayda,5 filed a
complaint with the RTC of Quezon City for the declaration
of nullity of marriage between Estrellita and Sen. Tamano
for being bigamous. The complaint6 alleged, inter alia, that
Sen. Tamano married Zorayda on May 31, 1958 under
civil rites, and that this marriage remained subsisting when
he married Estrellita in 1993. The complaint likewise
averred that:
11. The marriage of the deceased and Complainant
Zorayda, having been celebrated under the New Civil
Code, is therefore governed by this law. Based on Article
35 (4) of the Family Code, the subsequent marriage
entered into by deceased Mamintal with Defendant Llave
is void ab initio because he contracted the same while his
prior marriage to Complainant Zorayda was still subsisting,
and his status being declared as "divorced" has no factual
or legal basis, because the deceased never divorced
Complainant Zorayda in his lifetime, and he could not have
validly done so because divorce is not allowed under the
New Civil Code;
11.1 Moreover, the deceased did not and could not have
divorced Complainant Zorayda by invoking the provision of
P.D. 1083, otherwise known as the Code of Muslim
Personal Laws, for the simple reason that the marriage of
the deceased with Complainant Zorayda was never
deemed, legally and factually, to have been one
contracted under Muslim law as provided under Art. 186 (2)
of P.D. 1083, since they (deceased and Complainant
Zorayda) did not register their mutual desire to be thus
covered by this law;7
Summons was then served on Estrellita on December 19,
1994. She then asked from the court for an extension of 30
days to file her answer to be counted from January 4,
1995,8 and again, another 15 days9 or until February 18,
1995, both of which the court granted.10
Instead of submitting her answer, however, Estrellita filed
a Motion to Dismiss11 on February 20, 1995 where she
declared that Sen. Tamano and Zorayda are both Muslims
who were married under the Muslim rites, as had been
averred in the latter’s disbarment complaint against Sen.
Tamano.12 Estrellita argued that the RTC has no
jurisdiction to take cognizance of the case because under
Presidential Decree (PD) No. 1083, or the Code of Muslim
Personal Laws of the Philippines (Muslim Code),
questions and issues involving Muslim marriages and
divorce fall under the exclusive jurisdiction of shari’a
courts.
The trial court denied Estrellita’s motion and asserted its
jurisdiction over the case for declaration of nullity.13 Thus,
Estrellita filed in November 1995 a certiorari petition with
this Court questioning the denial of her Motion to Dismiss.
On December 15, 1995, we referred the petition to the
CA14 which was docketed thereat as CA-G.R. SP No.
39656.
During the pendency of CA-G.R. SP No. 39656, the RTC
continued to try the case since there can be no default in
cases of declaration of nullity of marriage even if the
respondent failed to file an answer. Estrellita was allowed
to participate in the trial while her opposing parties
presented their evidence. When it was Estrellita’s turn to
adduce evidence, the hearings set for such purpose15 were
postponed mostly at her instance until the trial court, on
March 22, 1996, suspended the proceedings 16 in view of
the CA’s temporary restraining order issued on February
29, 1996, enjoining it from hearing the case. 17
Eventually, however, the CA resolved the petition adverse
to Estrellita in its Decision dated September 30,
1996.18 Estrellita then elevated the appellate court’s
judgment to this Court by way of a petition for review on
certiorari docketed as G.R. No. 126603.19
Subsequent to the promulgation of the CA Decision, the
RTC ordered Estrellita to present her evidence on June 26,
1997.20 As Estrellita was indisposed on that day, the
hearing was reset to July 9, 1997.21 The day before this
scheduled hearing, Estrellita again asked for a
postponement.22
Unhappy with the delays in the resolution of their case,
Zorayda and Adib moved to submit the case for
decision,23 reasoning that Estrellita had long been delaying
the case. Estrellita opposed, on the ground that she has
not yet filed her answer as she still awaits the outcome of
G.R. No. 126603.24
On June 29, 1998, we upheld the jurisdiction of the RTC of
Quezon City,25 stating as one of the reasons that as shari’a
courts are not vested with original and exclusive
jurisdiction in cases of marriages celebrated under both
the Civil Code and PD 1083, the RTC, as a court of
general jurisdiction, is not precluded from assuming
jurisdiction over such cases. In our Resolution dated
August 24, 1998,26 we denied Estrellita’s motion for
reconsideration27 with finality.
A few days before this resolution, or on August 18, 1998,
the RTC rendered the aforementioned judgment declaring
Estrellita’s marriage with Sen. Tamano as void ab initio.28
Ruling of the Regional Trial Court
The RTC, finding that the marital ties of Sen. Tamano and
Zorayda were never severed, declared Sen. Tamano’s
subsequent marriage to Estrellita as void ab initio for being
bigamous under Article 35 of the Family Code of the
Philippines and under Article 83 of the Civil Code of the
Philippines.29 The court said:
A comparison between Exhibits A and B (supra)
immediately shows that the second marriage of the late
Senator with [Estrellita] was entered into during the
subsistence of his first marriage with [Zorayda]. This
renders the subsequent marriage void from the very
beginning. The fact that the late Senator declared his civil
status as "divorced" will not in any way affect the void
character of the second marriage because, in this
jurisdiction, divorce obtained by the Filipino spouse is not
an acceptable method of terminating the effects of a
previous marriage, especially, where the subsequent
marriage was solemnized under the Civil Code or Family
Code.30
Ruling of the Court of Appeals
In her appeal,31 Estrellita argued that she was denied her
right to be heard as
the RTC rendered its judgment even without waiting for
the finality of the Decision of the Supreme Court in G.R.
No. 126603. She claimed that the RTC should have
required her to file her answer after the denial of her
motion to dismiss. She maintained that Sen. Tamano is
capacitated to marry her as his marriage and subsequent
divorce with Zorayda is governed by the Muslim Code.
Lastly, she highlighted Zorayda’s lack of legal standing to
question the validity of her marriage to the deceased.
In dismissing the appeal in its Decision dated August 17,
2004,32 the CA held that Estrellita can no longer be allowed
to file her answer as she was given ample opportunity to
be heard but simply ignored it by asking for numerous
postponements. She never filed her answer despite the
lapse of around 60 days, a period longer than what was
prescribed by the rules. It also ruled that Estrellita cannot
rely on her pending petition for certiorari with the higher
courts since, as an independent and original action, it does
not interrupt the proceedings in the trial court.
As to the substantive merit of the case, the CA adjudged
that Estrellita’s marriage to Sen. Tamano is void ab initio
for being bigamous, reasoning that the marriage of
Zorayda and Sen. Tamano is governed by the Civil Code,
which does not provide for an absolute divorce. It noted
that their first nuptial celebration was under civil rites, while
the subsequent Muslim celebration was only ceremonial.
Zorayda then, according to the CA, had the legal standing
to file the action as she is Sen. Tamano’s wife and, hence,
the injured party in the senator’s subsequent bigamous
marriage with Estrellita.
In its September 13, 2005 Resolution,33 the CA denied
Estrellita’s Motion for Reconsideration/Supplemental
Motion for Reconsideration where it debunked the
additional errors she raised. The CA noted that the
allegation of lack of the public prosecutor’s report on the
existence of collusion in violation of both Rule 9, Section
3(e) of the Rules of Court34 and Article 48 of the Family
Code35 will not invalidate the trial court’s judgment as the
proceedings between the parties had been adversarial,
negating the existence of collusion. Assuming that the
issues have not been joined before the RTC, the same is
attributable to Estrellita’s refusal to file an answer. Lastly,
the CA disregarded Estrellita’s allegation that the trial court
erroneously rendered its judgment way prior to our remand
to the RTC of the records of the case ratiocinating that G.R.
No. 126603 pertains to the issue on the denial of the
Motion to Dismiss, and not to the issue of the validity of
Estrellita’s marriage to Sen. Tamano.
The Parties’ Respective Arguments
Reiterating her arguments before the court a quo, Estrellita
now argues that the CA erred in upholding the RTC
judgment as the latter was prematurely issued, depriving
her of the opportunity to file an answer and to present her
evidence to dispute the allegations against the validity of
her marriage. She claims that Judge Macias v.
Macias36 laid down the rule that the filing of a motion to
dismiss instead of an answer suspends the period to file
an answer and, consequently, the trial court is obliged to
suspend proceedings while her motion to dismiss on the
ground of lack of jurisdiction has not yet been resolved
with finality. She maintains that she merely participated in
the RTC hearings because of the trial court’s assurance
that the proceedings will be without prejudice to whatever
action the High Court will take on her petition questioning
the RTC’s jurisdiction and yet, the RTC violated this
commitment as it rendered an adverse judgment on
August 18, 1998, months before the records of G.R. No.
126603 were remanded to the CA on November 11,
1998.37 She also questions the lack of a report of the public
prosecutor anent a finding of whether there was collusion,
this being a prerequisite before further proceeding could
be held when a party has failed to file an answer in a suit
for declaration of nullity of marriage.
Estrellita is also steadfast in her belief that her marriage
with the late senator is valid as the latter was already
divorced under the Muslim Code at the time he married
her. She asserts that such law automatically applies to the
marriage of Zorayda and the deceased without need of
registering their consent to be covered by it, as both
parties are Muslims whose marriage was solemnized
under Muslim law. She pointed out that Sen. Tamano
married all his wives under Muslim rites, as attested to by
the affidavits of the siblings of the deceased. 38
Lastly, Estrellita argues that Zorayda and Adib have no
legal standing to file suit because only the husband or the
wife can file a complaint for the declaration of nullity of
marriage under Supreme Court Resolution A.M. No.
02-11-10-SC.39
Refuting the arguments, the Solicitor General (Sol Gen)
defends the CA’s reasoning and stresses that Estrellita
was never deprived of her right to be heard; and, that filing
an original action for certiorari does not stay the
proceedings of the main action before the RTC.
As regards the alleged lack of report of the public
prosecutor if there is collusion, the Sol Gen says that this
is no longer essential considering the vigorous opposition
of Estrellita in the suit that obviously shows the lack of
collusion. The Sol Gen also supports private respondents’
legal standing to challenge the validity of Estrellita’s
purported marriage with Sen. Tamano, reasoning that any
proper interested party may attack directly or collaterally a
void marriage, and Zorayda and Adib have such right to
file the action as they are the ones prejudiced by the
marital union.
Zorayda and Adib, on the other hand, did not file any
comment.
Issues
The issues that must be resolved are the following:
1. Whether the CA erred in affirming the trial court’s
judgment, even though the latter was rendered
prematurely because: a) the judgment was rendered
without waiting for the Supreme Court’s final resolution of
her certiorari petition, i.e., G.R. No. 126603; b) she has not
yet filed her answer and thus was denied due process; and
c) the public prosecutor did not even conduct an
investigation whether there was collusion;
2. Whether the marriage between Estrellita and the late
Sen. Tamano was bigamous; and
3. Whether Zorayda and Adib have the legal standing to
have Estrellita’s marriage declared void ab initio.
Our Ruling
Estrellita’s refusal to file an answer eventually led to the
loss of her right to answer; and her pending petition for
certiorari/review on certiorari questioning the denial of the
motion to dismiss before the higher courts does not at all
suspend the trial proceedings of the principal suit before
the RTC of Quezon City.
Firstly, it can never be argued that Estrellita was deprived
of her right to due process. She was never declared in
default, and she even actively participated in the trial to
defend her interest.
Estrellita invokes Judge Macias v. Macias40 to justify the
suspension of the period to file an answer and of the
proceedings in the trial court until her petition
for certiorari questioning the validity of the denial of her
Motion to Dismiss has been decided by this Court. In said
case, we affirmed the following reasoning of the CA which,
apparently, is Estrellita’s basis for her argument, to wit:
However, she opted to file, on April 10, 2001, a ‘Motion to
Dismiss,’ instead of filing an Answer to the complaint. The
filing of said motion suspended the period for her to file her
Answer to the complaint. Until said motion is resolved by
the Respondent Court with finality, it behooved the
Respondent Court to suspend the hearings of the case on
the merits. The Respondent Court, on April 19, 2001,
issued its Order denying the ‘Motion to Dismiss’ of the
Petitioner. Under Section 6, Rule 16 of the 1997 Rules of
Civil Procedure [now Section 4], the Petitioner had the
balance of the period provided for in Rule 11 of the said
Rules but in no case less than five (5) days computed from
service on her of the aforesaid Order of the Respondent
Court within which to file her Answer to the complaint: x x
x41 (Emphasis supplied.)
Estrellita obviously misappreciated Macias. All we
pronounced therein is that the trial court is mandated to
suspend trial until it finally resolves the motion to dismiss
that is filed before it. Nothing in the above excerpt states
that the trial court should suspend its proceedings should
the issue of the propriety or impropriety of the motion to
dismiss be raised before the appellate courts.
In Macias, the trial court failed to observe due process in
the course of the proceeding of the case because after it
denied the wife’s motion to dismiss, it immediately
proceeded to allow the husband to present evidence ex
parte and resolved the case with undue haste even when,
under the rules of procedure, the wife still had time to file
an answer. In the instant case, Estrellita had no time left
for filing an answer, as she filed the motion to dismiss
beyond the extended period earlier granted by the trial
court after she filed motions for extension of time to file an
answer.
Estrellita argues that the trial court prematurely issued its
judgment, as it should have waited first for the resolution of
her Motion to Dismiss before the CA and, subsequently,
before this Court. However, in upholding the RTC, the CA
correctly ruled that the pendency of a petition for certiorari
does not suspend the proceedings before the trial court.
"An application for certiorari is an independent action
which is not part or a continuation of the trial which
resulted in the rendition of the judgment complained
of."42 Rule 65 of the Rules of Court is explicit in stating that
"[t]he petition shall not interrupt the course of the principal
case unless a temporary restraining order or a writ of
preliminary injunction has been issued against the public
respondent from further proceeding in the case."43 In fact,
the trial court respected the CA’s temporary restraining
order and only after the CA rendered judgment did the
RTC again require Estrellita to present her evidence.
Notably, when the CA judgment was elevated to us by way
of Rule 45, we never issued any order precluding the trial
court from proceeding with the principal action. With her
numerous requests for postponements, Estrellita
remained obstinate in refusing to file an answer or to
present her evidence when it was her turn to do so,
insisting that the trial court should wait first for our decision
in G.R. No. 126603. Her failure to file an answer and her
refusal to present her evidence were attributable only to
herself and she should not be allowed to benefit from her
own dilatory tactics to the prejudice of the other party.
Sans her answer, the trial court correctly proceeded with
the trial and rendered its Decision after it deemed Estrellita
to have waived her right to present her side of the story.
Neither should the lower court wait for the decision in G.R.
No. 126603 to become final and executory, nor should it
wait for its records to be remanded back to it because G.R.
No. 126603 involves strictly the propriety of the Motion to
Dismiss and not the issue of validity of marriage.
The Public Prosecutor issued a report as
to the non-existence of collusion.
Aside from Article 48 of the Family Code and Rule 9,
Section 3(e) of the Rules of Court, the Rule on Declaration
of Absolute Nullity of Void Marriages and Annulment of
Voidable Marriages (A.M. No. 02-11-10-SC)44 also
requries the participation of the public prosecutor in cases
involving void marriages. It specifically mandates the
prosecutor to submit his investigation report to determine
whether there is collusion between the parties:
Sec. 9. Investigation report of public prosecutor.–(1)
Within one month after receipt of the court order
mentioned in paragraph (3) of Section 8 above, the public
prosecutor shall submit a report to the court stating
whether the parties are in collusion and serve copies
thereof on the parties and their respective counsels, if any.
(2) If the public prosecutor finds that collusion exists, he
shall state the basis thereof in his report. The parties shall
file their respective comments on the finding of collusion
within ten days from receipt of a copy of the report. The
court shall set the report for hearing and if convinced that
the parties are in collusion, it shall dismiss the petition.
(3) If the public prosecutor reports that no collusion exists,
the court shall set the case for pre-trial. It shall be the duty
of the public prosecutor to appear for the State at the
pre-trial.
Records show that the trial court immediately directed the
public prosecutor to submit the required report,45 which we
find to have been sufficiently complied with by Assistant
City Prosecutor Edgardo T. Paragua in his Manifestation
dated March 30, 1995,46 wherein he attested that there
could be no collusion between the parties and no
fabrication of evidence because Estrellita is not the spouse
of any of the private respondents.
Furthermore, the lack of collusion is evident in the case at
bar. Even assuming that there is a lack of report of
collusion or a lack of participation by the public prosecutor,
just as we held in Tuason v. Court of Appeals,47 the lack of
participation of a fiscal does not invalidate the proceedings
in the trial court:
The role of the prosecuting attorney or fiscal in annulment
of marriage and legal separation proceedings is to
determine whether collusion exists between the parties
and to take care that the evidence is not suppressed or
fabricated. Petitioner's vehement opposition to the
annulment proceedings negates the conclusion that
collusion existed between the parties. There is no
allegation by the petitioner that evidence was suppressed
or fabricated by any of the parties. Under these
circumstances, we are convinced that the non-intervention
of a prosecuting attorney to assure lack of collusion
between the contending parties is not fatal to the validity of
the proceedings in the trial court.48
The Civil Code governs the marriage of Zorayda and the
late Sen. Tamano; their marriage was never invalidated by
PD 1083. Sen. Tamano’s subsequent marriage to
Estrellita is void ab initio.
The marriage between the late Sen. Tamano and Zorayda
was celebrated in 1958, solemnized under civil and
Muslim rites.49 The only law in force governing marriage
relationships between Muslims and non-Muslims alike was
the Civil Code of 1950, under the provisions of which only
one marriage can exist at any given time.50 Under the
marriage provisions of the Civil Code, divorce is not
recognized except during the effectivity of Republic Act No.
39451 which was not availed of during its effectivity.
As far as Estrellita is concerned, Sen. Tamano’s prior
marriage to Zorayda has been severed by way of divorce
under PD 1083,52 the law that codified Muslim personal
laws. However, PD 1083 cannot benefit Estrellita. Firstly,
Article 13(1) thereof provides that the law applies to
"marriage and divorce wherein both parties are Muslims,
or wherein only the male party is a Muslim and the
marriage is solemnized in accordance with Muslim law or
this Code in any part of the Philippines." But we already
ruled in G.R. No. 126603 that "Article 13 of PD 1083 does
not provide for a situation where the parties were married
both in civil and Muslim rites."53
Moreover, the Muslim Code took effect only on February 4,
1977, and this law cannot retroactively override the Civil
Code which already bestowed certain rights on the
marriage of Sen. Tamano and Zorayda. The former
explicitly provided for the prospective application of its
provisions unless otherwise provided:
Art. 186 (1). Effect of code on past acts. —Acts executed
prior to the effectivity of this Code shall be governed by the
laws in force at the time of their execution, and nothing
herein except as otherwise specifically provided, shall
affect their validity or legality or operate to extinguish any
right acquired or liability incurred thereby.
It has been held that:
The foregoing provisions are consistent with the principle
that all laws operate prospectively, unless the contrary
appears or is clearly, plainly and unequivocably expressed
or necessarily implied; accordingly, every case of doubt
will be resolved against the retroactive operation of laws.
Article 186 aforecited enunciates the general rule of the
Muslim Code to have its provisions applied prospectively,
and implicitly upholds the force and effect of a pre-existing
body of law, specifically, the Civil Code – in respect of civil
acts that took place before the Muslim Code’s enactment.54
An instance of retroactive application of the Muslim Code
is Article 186(2) which states:
A marriage contracted by a Muslim male prior to the
effectivity of this Code in accordance with non-Muslim law
shall be considered as one contracted under Muslim law
provided the spouses register their mutual desire to this
effect.
Even granting that there was registration of mutual
consent for the marriage to be considered as one
contracted under the Muslim law, the registration of mutual
consent between Zorayda and Sen. Tamano will still be
ineffective, as both are Muslims whose marriage was
celebrated under both civil and Muslim laws. Besides, as
we have already settled, the Civil Code governs their
personal status since this was in effect at the time of the
celebration of their marriage. In view of Sen. Tamano’s
prior marriage which subsisted at the time Estrellita
married him, their subsequent marriage is correctly
adjudged by the CA as void ab initio.
Zorayda and Adib, as the injured parties, have the legal
personalities to file the declaration of nullity of marriage.
A.M. No. 02-11-10-SC, which limits to only the husband or
the wife the filing of a petition for nullity is prospective in
application and does not shut out the prior spouse from
filing suit if the ground is a bigamous subsequent
marriage.
Her marriage covered by the Family Code of the
Philippines,55 Estrellita relies on A.M. No. 02-11-10-SC
which took effect on March 15, 2003 claiming that under
Section 2(a)56 thereof, only the husband or the wife, to the
exclusion of others, may file a petition for declaration of
absolute nullity, therefore only she and Sen. Tamano may
directly attack the validity of their own marriage.
Estrellita claims that only the husband or the wife in a void
marriage can file a petition for declaration of nullity of
marriage. However, this interpretation does not apply if the
reason behind the petition is bigamy.
In explaining why under A.M. No. 02-11-10-SC only the
spouses may file the petition to the exclusion of
compulsory or intestate heirs, we said:
The Rationale of the Rules on Annulment of Voidable
Marriages and Declaration of Absolute Nullity of Void
Marriages, Legal Separation and Provisional Orders
explicates on Section 2(a) in the following manner, viz:
(1) Only an aggrieved or injured spouse may file petitions
for annulment of voidable marriages and declaration of
absolute nullity of void marriages. Such petitions cannot
be filed by the compulsory or intestate heirs of the spouses
or by the State. [Section 2; Section 3, paragraph a]
Only an aggrieved or injured spouse may file a petition for
annulment of voidable marriages or declaration of
absolute nullity of void marriages. Such petition cannot be
filed by compulsory or intestate heirs of the spouses or by
the State. The Committee is of the belief that they do not
have a legal right to file the petition. Compulsory or
intestate heirs have only inchoate rights prior to the death
of their predecessor, and hence can only question the
validity of the marriage of the spouses upon the death of a
spouse in a proceeding for the settlement of the estate of
the deceased spouse filed in the regular courts. On the
other hand, the concern of the State is to preserve
marriage and not to seek its dissolution.57
Note that the Rationale makes it clear that Section 2(a) of
A.M. No. 02-11-10-SC refers to the "aggrieved or injured
spouse." If Estrellita’s interpretation is employed, the prior
spouse is unjustly precluded from filing an action. Surely,
this is not what the Rule contemplated.
The subsequent spouse may only be expected to take
action if he or she had only discovered during the
connubial period that the marriage was bigamous, and
especially if the conjugal bliss had already vanished.
Should parties in a subsequent marriage benefit from the
bigamous marriage, it would not be expected that they
would file an action to declare the marriage void and thus,
in such circumstance, the "injured spouse" who should be
given a legal remedy is the one in a subsisting previous
marriage. The latter is clearly the aggrieved party as the
bigamous marriage not only threatens the financial and the
property ownership aspect of the prior marriage but most
of all, it causes an emotional burden to the prior spouse.
The subsequent marriage will always be a reminder of the
infidelity of the spouse and the disregard of the prior
marriage which sanctity is protected by the Constitution.
Indeed, Section 2(a) of A.M. No. 02-11-10-SC precludes
the son from impugning the subsequent marriage. But in1âwphi1
the case at bar, both Zorayda and Adib have legal
personalities to file an action for nullity. Albeit the Supreme
Court Resolution governs marriages celebrated under the
Family Code, such is prospective in application and does
not apply to cases already commenced before March 15,
2003.58
Zorayda and Adib filed the case for declaration of nullity of
Estrellita’s marriage in November 1994. While the Family
Code is silent with respect to the proper party who can file
a petition for declaration of nullity of marriage prior to A.M.
No. 02-11-10-SC, it has been held that in a void marriage,
in which no marriage has taken place and cannot be the
source of rights, any interested party may attack the
marriage directly or collaterally without prescription, which
may be filed even beyond the lifetime of the parties to the
marriage.59 Since A.M. No. 02-11-10-SC does not apply,
Adib, as one of the children of the deceased who has
property rights as an heir, is likewise considered to be the
real party in interest in the suit he and his mother had filed
since both of them stand to be benefited or injured by the
judgment in the suit.60
Since our Philippine laws protect the marital union of a
couple, they should be interpreted in a way that would
preserve their respective rights which include striking
down bigamous marriages. We thus find the CA Decision
correctly rendered.
WHEREFORE, the petition is DENIED. The assailed
August 17, 2004 Decision of the Court of Appeals in
CA-G.R. CV No. 61762, as well as its subsequent
Resolution issued on September 13, 2005, are hereby
AFFIRMED.

SO ORDERED.
G.R. No. 178044 January 19, 2011
ALAIN M. DIÑO , Petitioner,
vs.
MA. CARIDAD L. DIÑO, Respondent.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review1 assailing the 18
October 2006 Decision2 and the 12 March 2007 Order3 of
the Regional Trial Court of Las Piñas City, Branch 254
(trial court) in Civil Case No. LP-01-0149.
The Antecedent Facts
Alain M. Diño (petitioner) and Ma. Caridad L. Diño
(respondent) were childhood friends and sweethearts.
They started living together in 1984 until they decided to
separate in 1994. In 1996, petitioner and respondent
decided to live together again. On 14 January 1998, they
were married before Mayor Vergel Aguilar of Las Piñas
City.
On 30 May 2001, petitioner filed an action for Declaration
of Nullity of Marriage against respondent, citing
psychological incapacity under Article 36 of the Family
Code. Petitioner alleged that respondent failed in her
marital obligation to give love and support to him, and had
abandoned her responsibility to the family, choosing
instead to go on shopping sprees and gallivanting with her
friends that depleted the family assets. Petitioner further
alleged that respondent was not faithful, and would at
times become violent and hurt him.
Extrajudicial service of summons was effected upon
respondent who, at the time of the filing of the petition, was
already living in the United States of America. Despite
receipt of the summons, respondent did not file an answer
to the petition within the reglementary period. Petitioner
later learned that respondent filed a petition for
divorce/dissolution of her marriage with petitioner, which
was granted by the Superior Court of California on 25 May
2001. Petitioner also learned that on 5 October 2001,
respondent married a certain Manuel V. Alcantara.
On 30 April 2002, the Office of the Las Piñas prosecutor
found that there were no indicative facts of collusion
between the parties and the case was set for trial on the
merits.
Dr. Nedy L. Tayag (Dr. Tayag), a clinical psychologist,
submitted a psychological report establishing that
respondent was suffering from Narcissistic Personality
Disorder which was deeply ingrained in her system since
her early formative years. Dr. Tayag found that
respondent’s disorder was long-lasting and by nature,
incurable.
In its 18 October 2006 Decision, the trial court granted the
petition on the ground that respondent was psychologically
incapacited to comply with the essential marital obligations
at the time of the celebration of the marriage.
The Decision of the Trial Court
The trial court ruled that based on the evidence presented,
petitioner was able to establish respondent’s psychological
incapacity. The trial court ruled that even without Dr.
Tayag’s psychological report, the allegations in the
complaint, substantiated in the witness stand, clearly
made out a case of psychological incapacity against
respondent. The trial court found that respondent
committed acts which hurt and embarrassed petitioner and
the rest of the family, and that respondent failed to observe
mutual love, respect and fidelity required of her under
Article 68 of the Family Code. The trial court also ruled that
respondent abandoned petitioner when she obtained a
divorce abroad and married another man.
The dispositive portion of the trial court’s decision reads:
WHEREFORE, in view of the foregoing, judgment is
hereby rendered:
1. Declaring the marriage between plaintiff ALAIN M.
DIÑO and defendant MA. CARIDAD L. DIÑO on January
14, 1998, and all its effects under the law, as NULL and
VOID from the beginning; and
2. Dissolving the regime of absolute community of
property.
A DECREE OF ABSOLUTE NULLITY OF MARRIAGE
shall only be issued upon compliance with Article[s] 50
and 51 of the Family Code.
Let copies of this Decision be furnished the parties, the
Office of the Solicitor General, Office of the City
Prosecutor, Las Piñas City and the Office of the Local Civil
Registrar of Las Piñas City, for their information and
guidance.
SO ORDERED.4
Petitioner filed a motion for partial reconsideration
questioning the dissolution of the absolute community of
property and the ruling that the decree of annulment shall
only be issued upon compliance with Articles 50 and 51 of
the Family Code.
In its 12 March 2007 Order, the trial court partially granted
the motion and modified its 18 October 2006 Decision as
follows:
WHEREFORE, in view of the foregoing, judgment is
hereby rendered:
1) Declaring the marriage between plaintiff ALAIN M.
DIÑO and defendant MA. CARIDAD L. DIÑO on January
14, 1998, and all its effects under the law, as NULL and
VOID from the beginning; and
2) Dissolving the regime of absolute community of
property.
A DECREE OF ABSOLUTE NULLITY OF MARRIAGE
shall be issued after liquidation, partition and distribution of
the parties’ properties under Article 147 of the Family
Code.
Let copies of this Order be furnished the parties, the Office
of the Solicitor General, the Office of the City Prosecutor of
Las Piñas City and the Local Civil Registrar of Las Piñas
City, for their information and guidance.5
Hence, the petition before this Court.
The Issue
The sole issue in this case is whether the trial court erred
when it ordered that a decree of absolute nullity of
marriage shall only be issued after liquidation, partition,
and distribution of the parties’ properties under Article 147
of the Family Code.
The Ruling of this Court
The petition has merit.
Petitioner assails the ruling of the trial court ordering that a
decree of absolute nullity of marriage shall only be issued
after liquidation, partition, and distribution of the parties’
properties under Article 147 of the Family Code. Petitioner
argues that Section 19(1) of the Rule on Declaration of
Absolute Nullity of Null Marriages and Annulment of
Voidable Marriages6 (the Rule) does not apply to Article
147 of the Family Code.
We agree with petitioner.
The Court has ruled in Valdes v. RTC, Branch 102,
Quezon City that in a void marriage, regardless of its
cause, the property relations of the parties during the
period of cohabitation is governed either by Article 147 or
Article 148 of the Family Code.7 Article 147 of the Family
Code applies to union of parties who are legally
capacitated and not barred by any impediment to contract
marriage, but whose marriage is nonetheless void,8 such
as petitioner and respondent in the case before the Court.
Article 147 of the Family Code provides:
Article 147. When a man and a woman who are
capacitated to marry each other, live exclusively with each
other as husband and wife without the benefit of marriage
or under a void marriage, their wages and salaries shall be
owned by them in equal shares and the property acquired
by both of them through their work or industry shall be
governed by the rules on co-ownership.
In the absence of proof to the contrary, properties acquired
while they lived together shall be presumed to have been
obtained by their joint efforts, work or industry, and shall
be owned by them in equal shares. For purposes of this
Article, a party who did not participate in the acquisition by
the other party of any property shall be deemed to have
contributed jointly in the acquisition thereof if the former’s
efforts consisted in the care and maintenance of the family
and of the household.
Neither party can encumber or dispose by acts inter
vivos of his or her share in the property acquired during
cohabitation and owned in common, without the consent of
the other, until after the termination of their cohabitation.
When only one of the parties to a void marriage is in good
faith, the share of the party in bad faith in the co-ownership
shall be forfeited in favor of their common children. In case
of default of or waiver by any or all of the common children
or their descendants, each vacant share shall belong to
the respective surviving descendants. In the absence of
descendants, such share shall belong to the innocent
party. In all cases, the forfeiture shall take place upon
termination of the cohabitation.
For Article 147 of the Family Code to apply, the following
elements must be present:
1. The man and the woman must be capacitated to marry
each other;
2. They live exclusively with each other as husband and
wife; and
3. Their union is without the benefit of marriage, or their
marriage is void.9
All these elements are present in this case and there is no
question that Article 147 of the Family Code applies to the
property relations between petitioner and respondent.
We agree with petitioner that the trial court erred in
ordering that a decree of absolute nullity of marriage shall
be issued only after liquidation, partition and distribution of
the parties’ properties under Article 147 of the Family
Code. The ruling has no basis because Section 19(1) of
the Rule does not apply to cases governed under Articles
147 and 148 of the Family Code. Section 19(1) of the Rule
provides:
Sec. 19. Decision. - (1) If the court renders a decision
granting the petition, it shall declare therein that the decree
of absolute nullity or decree of annulment shall be issued
by the court only after compliance with Articles 50 and 51
of the Family Code as implemented under the Rule on
Liquidation, Partition and Distribution of Properties.
The pertinent provisions of the Family Code cited in
Section 19(1) of the Rule are:
Article 50. The effects provided for in paragraphs (2), (3),
(4) and (5) of Article 43 and in Article 44 shall also apply in
proper cases to marriages which are declared void ab
initio or annulled by final judgment under Articles 40 and
45.10
The final judgment in such cases shall provide for the
liquidation, partition and distribution of the properties of the
spouses, the custody and support of the common children,
and the delivery of their presumptive legitimes, unless
such matters had been adjudicated in previous judicial
proceedings.
All creditors of the spouses as well as of the absolute
community of the conjugal partnership shall be notified of
the proceedings for liquidation.
In the partition, the conjugal dwelling and the lot on which
it is situated, shall be adjudicated in accordance with the
provisions of Articles 102 and 129.
Article 51. In said partition, the value of the presumptive
legitimes of all common children, computed as of the date
of the final judgment of the trial court, shall be delivered in
cash, property or sound securities, unless the parties, by
mutual agreement judicially approved, had already
provided for such matters.
The children of their guardian, or the trustee of their
property, may ask for the enforcement of the judgment.
The delivery of the presumptive legitimes herein
prescribed shall in no way prejudice the ultimate
successional rights of the children accruing upon the death
of either or both of the parents; but the value of the
properties already received under the decree of annulment
or absolute nullity shall be considered as advances on
their legitime.
In this case, petitioner’s marriage to respondent was
declared void under Article 3615 of the Family Code and
not under Article 40 or 45. Thus, what governs the
liquidation of properties owned in common by petitioner
and respondent are the rules on co-ownership. In Valdes,
the Court ruled that the property relations of parties in a
void marriage during the period of cohabitation is
governed either by Article 147 or Article 148 of the Family
Code.16 The rules on co-ownership apply and the
properties of the spouses should be liquidated in
accordance with the Civil Code provisions on
co-ownership. Under Article 496 of the Civil Code,
"[p]artition may be made by agreement between the
parties or by judicial proceedings. x x x." It is not
necessary to liquidate the properties of the spouses in the
same proceeding for declaration of nullity of marriage.
WHEREFORE, we AFFIRM the Decision of the trial court
with the MODIFICATION that the decree of absolute
nullity of the marriage shall be issued upon finality of the
trial court’s decision without waiting for the liquidation,
partition, and distribution of the parties’ properties under
Article 147 of the Family Code.
SO ORDERED.

It is clear from Article 50 of the Family Code that Section

19(1) of the Rule applies only to marriages which are
declared void ab initio or annulled by final judgment under
Articles 40 and 45 of the Family Code. In short, Article
50 of the Family Code does not apply to marriages which
are declared void ab initio under Article 36 of the Family
Code, which should be declared void without waiting for
the liquidation of the properties of the parties.

Article 40 of the Family Code contemplates a situation

where a second or bigamous marriage was
contracted. Under Article 40, "[t]he absolute nullity of a
1avvphil

previous marriage may be invoked for purposes of

remarriage on the basis solely of a final judgment
declaring such previous marriage void." Thus we ruled:

x x x where the absolute nullity of a previous marriage is

sought to be invoked for purposes of contracting a second
marriage, the sole basis acceptable in law, for said
projected marriage to be free from legal infirmity, is a final
judgment declaring a previous marriage void.11

Article 45 of the Family Code, on the other hand, refers to

voidable marriages, meaning, marriages which are valid
until they are set aside by final judgment of a competent
court in an action for annulment.12 In both instances under
Articles 40 and 45, the marriages are governed either by
absolute community of property13 or conjugal partnership
of gains14 unless the parties agree to a complete
separation of property in a marriage settlement entered
into before the marriage. Since the property relations of
the parties is governed by absolute community of property
or conjugal partnership of gains, there is a need to
liquidate, partition and distribute the properties before a
decree of annulment could be issued. That is not the case
for annulment of marriage under Article 36 of the Family
Code because the marriage is governed by the ordinary
rules on co-ownership.