Art. 40.
The absolute nullity of a previous marriage may be It would seem that the accused and Maria Faicol
invoked for purposes of remarriage on the basis solely of a
final judgment declaring such previous marriage void.
G.R. No. L-10016 February 28, 1957
THE PEOPLE OF THE PHILIPPINES, plaintiff-appelle,
vs.
PROCESO S. ARAGON, defendant-appellant.
Office of the Solicitor General Ambrosio Padilla and
Solicitor Adolfo Brillantes for appellee.
Prospero V. Manuel, Fernando Moncada and Antonio Abad
Tornis for defendant and appellant.
LABRADOR, J.:
Appeal from a judgment of the Court of First Instance of
Cebu finding appellant guilty of bigamy. The facts are not
disputed and, as found by the trial court, are as follows:
On September 28, 1925, the accused, under the name of
Proceso Rosima, contracted marriage with a certain Maria
Gorrea in the Philippine Independent Church in Cebu
(Exhibits "1" and "1-A"). While his marriage with Maria
Gorrea was subsisting, the accused under the name of
Proceso Aragon, contracted a canonical marriage with
Maria Faicol on August 27, 1934, in the Santa Teresita
Church in Iloilo City.
The sponsors of the accused and Maria Faicol were Eulogio
Giroy, who was then an employee of the Office of the
Municipal Treasurer of Iloilo, and a certain Emilio Tomesa, a
clerk in the said office (Exhibit "A" and testimonies of
Eulogio Giroy and complainant Maria Faicol). After the said
marriage, the accused and Maria Faicol established
residence in Iloilo. As the accused was then a traveling
salesman, he commuted between Iloilo where he
maintained Maria Faicol, and Cebu where he maintained
his first wife, Maria Gorrea died in Cebu City on August 5,
1939 (Exhibit "2"). After Maria Gorrea's death, and seeing
that the coast was dear in Cebu, the accused brought Maria
Faicol to Cebu City in 1940, where she worked as a
teacher-nurse.
marriage contracted by any person during the lifetime of his
did not live a happy marital life in Cebu, for it
appears that in 1949 and 1950, Maria Faicol
suffered injuries to her eyes because of physical
maltreatment in the hands of the accused. On
January 22, 1953, the accused sent Maria Faicol
to Iloilo, allegedly for the purpose of undergoing
treatment of her eyesight. During her absence, the
accused contracted a third marriage with a certain
Jesusa C. Maglasang on October 3, 1953, in
Sibonga, Cebu. (See Exhibits "C", "D", "E" and "F")
The accused admitted having contracted marriage
with Jesusa C. Maglasangin Sibonga, Cebu, on
October 3, 1953, Although the accused made an
attempt to deny his previous marriage with Maria
Faicol, the Court, however, believes that the
attempt is futile for the fact of the said second
marriage was fully established not only by the
certificate of the said marriage, but also by the
testimony of Maria Faicol and of Eulogio Giroy,
one of the sponsors of the wedding, and the
identification of the accused made by Maria Faicol.
(See Exhibits "A" and "B"; t.s.n. pp. 32-33, 40, 41,
hearing of April 27, 1954).
The Court of First Instance of Cebu held that even
in the absence of an express provision in Act No.
3613 authorizing the filing of an action for judicial
declaration of nullity of a marriage void ab initio,
defendant could not legally contract marriage with
Jesusa C. Maglasang without the dissolution of his
marriage to Maria Faicol, either by the death of the
latter or by the judicial declaration of the nullity of
such marriage, at the instance of the latter.
Authorities given for this ruling are 5 Viada, 5th
edition, 651; 35 American Jurisprudence, Marriage,
Sec. 46, p. 212; Bickford vs. Bickford, 74 N. H. 466,
69 A. 579.
Appellant in this Court relies on the case of People
vs. Mendoza, (95 Phil., 845; 50 Off. Gaz., [10]
4767). In this case the majority of this Court
declared:
The statutory provision (section 29 of the Marriage
Law or Act No. 3613) plainly makes a subsequent
first spouse illegal and void from its performance, and no
judicial decree is necessary to establish its invalidity, as
distinguished from mere annullable marriages. There is
here no pretense that appellant's second marriage with
Olga Lema was contracted in the belief that the first spouse,
Jovita de Asis, had been absent for seven consecutive
years or generally considered as dead, so as to render said
marriage valid until declared null and void by a subsequent
court.
We are of the very weighty reasons by Justice Alex Reyes
in the dissent in the case above-quoted But this weighty
reasons notwithstanding, the very fundamental principle of
strict construction of penal laws in favor of the accused,
which principle we may not ignore, seems to justify our
stand in the above-cited case of People vs. Mendoza. Our
Revised Penal Code is of recent enactment and had the
rule enunciated in Spain and in America requiring judicial
declaration of nullity of ab initio void marriages been within
the contemplation of the legislature, an express provision to
that effect would or should have been inserted in the law. In
its absence, we are bound by said rule of strict
interpretation already adverted to.
It is to be noted that the action was instituted upon
complaint of the second wife, whose marriage with the
appellant was not renewed after the death of the first wife
and before the third marriage was entered into. Hence, the
last marriage was a valid one and appellant's prosecution
for contracting this marriage can not prosper.
For the foregoing considerations, the judgment appealed
from is hereby reversed and the defendant-appellant
acquitted, with costs de oficio, without prejudice to his
prosecution for having contracted the second bigamous
marriage. So ordered.
G.R. No. L-23214 June 30, 1970
OFELIA GOMEZ, as Administratrix of the Estate of the
late ISIDRA GOMEZ Y AQUINO, plaintiff-appellee,
vs.
JOAQUIN P. LIPANA, defendant-appellant.
Marcelo Y. Hernandez for plaintiff-appellee.
Presentacion G. Santos for defendant-appellant.
MAKALINTAL, J.:
The defendant-appellant, Joaquin P. Lipana, contracted
two marriages: the first with Maria Loreto Ancino in 1930
and the second with Isidra Gomez y Aquino in 1935. At the
time of the second marriage the first was still subsisting,
which fact, however, Lipana concealed from the second
wife.
On December 17, 1943 the spouses of the second marriage
acquired by purchase a piece of land in Cubao, Quezon
City, for the price of P3,000.00. The Torrens title for the
property (Transfer Certificate No. 25289 of the Register of
Deeds for Quezon City) was issued on February 1, 1944, in
the name of "Joaquin Lipana married to Isidra Gomez." On
July 20, 1958 Isidra Gomez died intestate and childless,
and survived only by her sisters as the nearest relatives. On
August 7, 1961 Ofelia Gomez, judicial administratrix of her
estate, commenced the present suit, praying for the
forfeiture of the husband's share in the Cubao property in
favor of the said estate. Reliance is placed on Article 1417
of the old Civil Code, the Spanish text of which provides:
La sociedad de gananciales concluye al disolverse el
matrimonio o al ser declarado nulo.
El conjuge que por su mala fe hubiere sido causa de la
nulidad, no tendra parte en los bienes gananciales.
The trial court, ruling that the second marriage was void ab
initio and that the husband was the one who gave cause for
its nullity, applied the aforequoted provision and declared
his interest in the disputed property forfeited in favor of the
estate of the deceased second wife.
In the present appeal by the defendant he attributes two
errors to the trial court: (1) in allowing a collateral attack on
the validity of the second marriage and in holding it to be
bigamous and void ab initio; and (2) in holding that
Article 1417 of the Spanish Civil Code is applicable
in this case.
The first error has not been committed. The
controlling statute is Act 3613 of the Philippine
Legislature, the Marriage Law which became
effective on December 4, 1929 and was in force
when the two marriages were celebrated. The
pertinent provisions are as follows:
SEC. 29. Illegal Marriages. — 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;
(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 so
contracted being valid in either case until declared
null and void by a competent court.
SEC. 30. Annullable marriages. — A marriage may
be annulled for any of the following causes,
existing at the time of the marriage:
xxx xxx xxx
(b) That the former husband or wife of either was
living and the marriage with such former husband
or wife was then in force;
xxx xxx xxx
SEC. 31. Time for filing action for decree of nullity.
— The action to obtain a decree of nullity of
marriage, for causes mentioned in the preceding
section, must be commenced within the periods and by the
parties as follows:
xxx xxx xxx
(b) For causes mentioned in subdivision (b); by either party
during the life of the other, or by the former husband or wife.
xxx xxx xxx
The appellant, relying on Section 30(b) quoted above,
maintains that his marriage to Isidra Gomez was valid and
could be annulled only in an action for that purpose, which
in the light of Section 31 could be filed only by either party
thereto, during the lifetime of the other, or by the former
spouse.
However, it is not Section 30 but Section 29 which governs
in this case, particularly the first paragraph thereof, which
says that "any marriage 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." This is the general rule, to which the
only exceptions are those mentioned in subsections (a) and
(b) of the same provision.<äre||anº•1àw>
There is no suggestion here that the defendant's 1930
marriage to Maria Loreto Ancino had been annulled or
dissolved when he married Isidra Gomez in 1935, and there
is no proof that he did so under the conditions envisioned in
sub-section (b). The burden is on the party invoking the
exception to prove that he comes under it; and the
defendant has not discharged that burden at all, no
evidence whatsoever having been adduced by him at the
trial. Indeed, he contracted the second marriage less than
seven years after the first, and he has not shown that his
first wife was then generally considered dead or was
believed by him to be so.
The second error bears closer analysis. Is Article 1417 of
the Spanish Civil Code applicable under the facts of this
case?
There is one primordial fact which must be considered,
namely, that since the defendant's first marriage has not
been dissolved or declared void the conjugal partnership
established by that marriage has not ceased. Nor has the
first wife lost or relinquished her status as putative heir of
her husband under the new Civil Code, entitled to share in
his estate upon his death should she survive him.
Consequently, whether as conjugal partner in a still
subsisting marriage or as such putative heir she has an
interest in the husband's share in the property here in
dispute, even if it was acquired during the second marriage,
of which interest she would be deprived if his share should
be declared forfeited in favor of the second wife.
There is a difference of opinion among the members of this
Court as to whether such resulting prejudice to the first wife
is within the contemplation of the Spanish Civil Code when
it decrees in general terms in Article 1417 that the spouse
who in bad faith has given cause for nullity (of the marriage)
shall have no share in the conjugal properties, considering
that in the present case the first marriage has not been
terminated and therefore likewise impresses the conjugal
stamp of that marriage upon whatever properties are
acquired during its existence. We believe, however, that it is
not necessary to resolve that question here inasmuch as
the facts do not call for the application of Article 1417. The
first paragraph of this Article states two causes for the
termination of the conjugal partnership: (1) dissolution of the
marriage and (2) declaration of nullity. Under the second
paragraph of the same Article it is upon the termination of
the partnership by either of said causes that the forfeiture of
the guilty spouse takes place. Now then, when did the
conjugal partnership formed by virtue of the marriage of the
defendant to the deceased Isidra Gomez terminate?
Obviously when the marriage was dissolved by the latter's
death in 1958. By that time Article 1417 was no longer in
force, having been eliminated in the new Civil Code, which
took effect in 1950. The legal situation arising from these
facts is that while insofar as the second wife was concerned,
she having acted in good faith, her marriage produced civil
effects and gave rise, just the same, to the formation of a
conjugal partnership wherein she was entitled to an equal
share upon dissolution,1 no action lies under Article 1417
for the forfeiture of the husband's share in her favor, much
less in favor of her estate, with respect to which there are
after all no children, but only collateral relatives, who are
entitled to succeed.
It would not do to say that since the second marriage, in this
case was void ab initio the application of Article 1417
should be reckoned as of the date it was thereby, which includes properties acquired by the husband
celebrated in 1935. This article speaks from the during its existence.
moment of the termination of the conjugal
partnership (either by the dissolution of the The only just and equitable solution in this case would be to
marriage or by the declaration of its nullity); and it recognize the right of the second wife to her husband, and
would be self-contradictory to consider that the consider the other half as pertaining to the conjugal
conjugal partnership was formed and terminated at partnership of the first marriage.
the same time and by the same act, that is, by the
celebration itself of the marriage. Colin y
WHEREFORE, the decision appealed from is reversed, and
Capitant2 comments on this provision as follows:
the complaint is dismissed, without pronouncement as to
costs.
Disuelven matrimonio y, por tanto la sociedad de
gananciales, la muerte de uno de los conjuges y la
G.R. No. L-28093 January 30, 1971
declaracion de nulidad.<äre||anº•1àw>
BASILIA BERDIN VDA. DE CONSUEGRA; JULIANA,
En caso de declaracion de nulidad, la sociedad de
PACITA, MARIA LOURDES, JOSE, JR., RODRIGO,
gananciales se extingue al ser declarado nulo el
LINEDA and LUIS, all surnamed
matrimonio, es decir, en el momento en que sea
CONSUEGRA, petitioners-appellants,
firme la sentencia declarativa de la nulidad.
vs.
GOVERNMENT SERVICE INSURANCE SYSTEM,
xxx xxx xxx COMMISSIONER OF PUBLIC HIGHWAYS, HIGHWAY
DISTRICT ENGINEER OF SURIGAO DEL NORTE,
It may thus be seen that if the nullity, or annulment, COMMISSIONER OF CIVIL SERVICE, and ROSARIO
of the marriage is the basis for the application of DIAZ, respondents-appellees.
Article 1417, there is need for a judicial declaration
thereof, which of course contemplates an action Bernardino O. Almeda for petitioners-appellants.
for that purpose. In the instant case, however, the
conjugal partnership formed by the second
Binag and Arevalo, Jr. for respondent-appellee Government
marriage was dissolved by the death of the second
Service Insurance System.
wife; and there has been no judicial declaration of
nullity except possibly in this very action, filed after
dissolution by death had taken place and when Office of the Solicitor General for other
Article 1417 of the Spanish Civil Code was no respondents-appellees.
longer in force.
There is, to be sure, a statement of Manresa3 that
in case of nullity it is presumed, with respect to the ZALDIVAR, J.:
spouse who acted in bad faith, that neither the
marriage nor the conjugal partnership ever existed, Appeal on purely questions of law from the decision of the
and hence such spouse has no right to a share in Court of First Instance of Surigao del Norte, dated March 7,
the conjugal properties; but this legal effect of such 1967, in its Special Proceeding No. 1720.
presumption derives from the premise that Article
1417 is still in force, and in any event is of doubtful
The pertinent facts, culled from the stipulation of facts
application if it would be in derogation of and to the
submitted by the parties, are the following:
prejudice of the right of the other spouse of the first
marriage in the conjugal partnership formed
The late Jose Consuegra, at the time of his death, was
employed as a shop foreman of the office of the District
Engineer in the province of Surigao del Norte. In his lifetime,
Consuegra contracted two marriages, the first with herein
respondent Rosario Diaz, solemnized in the parish church
of San Nicolas de Tolentino, Surigao, Surigao, on July 15,
1937, out of which marriage were born two children, namely,
Jose Consuegra, Jr. and Pedro Consuegra, but both
predeceased their father; and the second, which was
contracted in good faith while the first marriage was
subsisting, with herein petitioner Basilia Berdin, on May 1,
1957 in the same parish and municipality, out of which
marriage were born seven children, namely, Juliana, Pacita,
Maria Lourdes, Jose, Rodrigo, Lenida and Luz, all
surnamed Consuegra.
Being a member of the Government Service Insurance
System (GSIS, for short) when Consuegra died on
September 26, 1965, the proceeds of his life insurance
under policy No. 601801 were paid by the GSIS to petitioner
Basilia Berdin and her children who were the beneficiaries
named in the policy. Having been in the service of the
government for 22.5028 years, Consuegra was entitled to
retirement insurance benefits in the sum of P6,304.47
pursuant to Section 12(c) of Commonwealth Act 186 as
amended by Republic Acts 1616 and 3836. Consuegra did
not designate any beneficiary who would receive the
retirement insurance benefits due to him. Respondent
Rosario Diaz, the widow by the first marriage, filed a claim
with the GSIS asking that the retirement insurance benefits
be paid to her as the only legal heir of Consuegra,
considering that the deceased did not designate any
beneficiary with respect to his retirement insurance benefits.
Petitioner Basilia Berdin and her children, likewise, filed a
similar claim with the GSIS, asserting that being the
beneficiaries named in the life insurance policy of
Consuegra, they are the only ones entitled to receive the
retirement insurance benefits due the deceased Consuegra.
Resolving the conflicting claims, the GSIS ruled that the
legal heirs of the late Jose Consuegra were Rosario Diaz,
his widow by his first marriage who is entitled to one-half, or
8/16, of the retirement insurance benefits, on the one hand;
and Basilia Berdin, his widow by the second marriage and
their seven children, on the other hand, who are entitled to
the remaining one-half, or 8/16, each of them to receive an
equal share of 1/16.
Dissatisfied with the foregoing ruling and
apportionment made by the GSIS, Basilia Berdin
and her children1 filed on October 10, 1966 a
petition for mandamus with preliminary injunction
in the Court of First Instance of Surigao, naming as
respondents the GSIS, the Commissioner of
Public Highways, the Highway District Engineer of
Surigao del Norte, the Commissioner of Civil
Service, and Rosario Diaz, praying that they
(petitioners therein) be declared the legal heirs and
exclusive beneficiaries of the retirement insurance
of the late Jose Consuegra, and that a writ of
preliminary injunction be issued restraining the
implementation of the adjudication made by the
GSIS. On October 26, 1966, the trial court issued
an order requiring therein respondents to file their
respective answers, but refrained from issuing the
writ of preliminary injunction prayed for. On
February 11, 1967, the parties submitted a
stipulation of facts, prayed that the same be
admitted and approved and that judgment be
rendered on the basis of the stipulation of facts. On
March 7, 1967, the court below rendered judgment,
the pertinent portions of which are quoted
hereunder:
This Court, in conformity with the foregoing
stipulation of facts, likewise is in full accord with
the parties with respect to the authority cited by
them in support of said stipulation and which is
herein-below cited for purposes of this judgment,
to wit:
"When two women innocently and in good faith are
legally united in holy matrimony to the same man,
they and their children, born of said wedlock, will
be regarded as legitimate children and each family
be entitled to one half of the estate. Lao & Lao vs.
Dee Tim, 45 Phil. 739; Estrella vs. Laong Masa,
Inc., (CA) 39 OG 79; Pisalbon vs. Bejec, 74 Phil.
88.
WHEREFORE, in view of the above premises, this
Court is of the opinion that the foregoing stipulation
of facts is in order and in accordance with law and
the same is hereby approved. Judgment, therefore,
is hereby rendered declaring the petitioner Basilia
Berdin Vda. de Consuegra and her co-petitioners Juliana,
Pacita, Maria Lourdes, Jose, Jr., Rodrigo, Lenida and Luis,
all surnamed Consuegra, beneficiary and entitled to
one-half (1/2) of the retirement benefit in the amount of Six
Thousand Three Hundred Four Pesos and Fourty-Seven
Centavos (P6,304.47) due to the deceased Jose
Consuegra from the Government Service Insurance System
or the amount of P3,152.235 to be divided equally among
them in the proportional amount of 1/16 each. Likewise, the
respondent Rosario Diaz Vda. de Consuegra is hereby
declared beneficiary and entitled to the other half of the
retirement benefit of the late Jose Consuegra or the amount
of P3,152.235. The case with respect to the Highway
District Engineer of Surigao del Norte is hereby ordered
dismissed.
Hence the present appeal by herein petitioners-appellants,
Basilia Berdin and her children.
It is the contention of appellants that the lower court erred in
not holding that the designated beneficiaries in the life
insurance of the late Jose Consuegra are also the exclusive
beneficiaries in the retirement insurance of said deceased.
In other words, it is the submission of appellants that
because the deceased Jose Consuegra failed to designate
the beneficiaries in his retirement insurance, the appellants
who were the beneficiaries named in the life insurance
should automatically be considered the beneficiaries to
receive the retirement insurance benefits, to the exclusion
of respondent Rosario Diaz. From the arguments adduced
by appellants in their brief We gather that it is their stand
that the system of life insurance and the system of
retirement insurance, that are provided for in
Commonwealth Act 186 as amended, are simply
complementary to each other, or that one is a part or an
extension of the other, such that whoever is named the
beneficiary in the life insurance is also the beneficiary in the
retirement insurance when no such beneficiary is named in
the retirement insurance.
The contention of appellants is untenable.
It should be noted that the law creating the Government
Service Insurance System is Commonwealth Act 186 which
was enacted by the National Assembly on November 14,
1936. As originally approved, Commonwealth Act 186
provided for the compulsory membership in the
Government Service Insurance System of all regularly and
permanently appointed officials and employees of the
government, considering as automatically insured on life all
such officials and employees, and issuing to them the
corresponding membership policy under the terms and
conditions as provided in the Act.2
Originally, Commonwealth Act 186 provided for life
insurance only. Commonwealth Act 186 was amended by
Republic Act 660 which was enacted by the Congress of the
Philippines on June 16, 1951, and, among others, the
amendatory Act provided that aside from the system of life
insurance under the Government Service Insurance System
there was also established the system of retirement
insurance. Thus, We will note in Republic Act 660 that there
is a chapter on life insurance and another chapter on
retirement insurance. 3 Under the chapter on life insurance
are sections 8, 9 and 10 of Commonwealth Act 186, as
amended; and under the chapter on retirement insurance
are sections 11, 12, 13 and 13-A. On May 31, 1957,
Republic Act 1616 was enacted by Congress, amending
section 12 of Commonwealth Act 186 as amended by
Republic Act 660, by adding thereto two new subsections,
designated as subsections (b) and (c). This subsection (c)
of section 12 of Commonwealth Act 186, as amended by
Republic Acts 660, 1616 and 3096, was again amended by
Republic Act 3836 which was enacted on June 22,
1963.lâwphî1.ñèt The pertinent provisions of subsection (c)
of Section 12 of Commonwealth Act 186, as thus amended
and reamended, read as follows:
(c) Retirement is likewise allowed to a member, regardless
of age, who has rendered at least twenty years of service.
The benefit shall, in addition to the return of his personal
contributions plus interest and the payment of the
corresponding employer's premiums described in
subsection (a) of Section 5 hereof, without interest, be only
a gratuity equivalent to one month's salary for every year of
service, based on the highest rate received, but not to
exceed twenty-four months; Provided, That the retiring
officer or employee has been in the service of the said
employer or office for at least four years, immediately
preceding his retirement.
xxx xxx xxx
The gratuity is payable by the employer or office
concerned which is hereby authorized to provide
the necessary appropriation to pay the same from
any unexpended items of appropriations.
Elective or appointive officials and employees paid
gratuity under this subsection shall be entitled to
the commutation of the unused vacation and sick
leave, based on the highest rate received, which
they may have to their credit at the time of
retirement.
Jose Consuegra died on September 26, 1965, and
so at the time of his death he had acquired rights
under the above-quoted provisions of subsection
(c) of Section 12 of Com. Act 186, as finally
amended by Rep. Act 3836 on June 22, 1963.
When Consuegra died on September 26, 1965, he
had to his credit 22.5028 years of service in the
government, and pursuant to the above-quoted
provisions of subsection (c) of Section 12 of Com.
Act 186, as amended, on the basis of the highest
rate of salary received by him which was P282.83
per month, he was entitled to receive retirement
insurance benefits in the amount of P6,304.47.
This is the retirement benefits that are the subject
of dispute between the appellants, on the one
hand, and the appellee Rosario Diaz, on the other,
in the present case. The question posed is: to
whom should this retirement insurance benefits of
Jose Consuegra be paid, because he did not, or
failed to, designate the beneficiary of his
retirement insurance?
If Consuegra had 22.5028 years of service in the
government when he died on September 26, 1965,
it follows that he started in the government service
sometime during the early part of 1943, or before
1943. In 1943 Com. Act 186 was not yet amended,
and the only benefits then provided for in said Com.
Act 186 were those that proceed from a life
insurance. Upon entering the government service
Consuegra became a compulsory member of the
GSIS, being automatically insured on his life,
pursuant to the provisions of Com. Act 186 which
was in force at the time. During 1943 the operation
of the Government Service Insurance System was
suspended because of the war, and the operation was
resumed sometime in 1946. When Consuegra designated
his beneficiaries in his life insurance he could not have
intended those beneficiaries of his life insurance as also the
beneficiaries of his retirement insurance because the
provisions on retirement insurance under the GSIS came
about only when Com. Act 186 was amended by Rep. Act
660 on June 16, 1951. Hence, it cannot be said that
because herein appellants were designated beneficiaries in
Consuegra's life insurance they automatically became the
beneficiaries also of his retirement insurance. Rep. Act 660
added to Com. Act 186 provisions regarding retirement
insurance, which are Sections 11, 12, and 13 of Com. Act
186, as amended. Subsection (b) of Section 11 of Com. Act
186, as amended by Rep. Act 660, provides as follows:
(b) Survivors benefit. — Upon death before he becomes
eligible for retirement, his beneficiaries as recorded in the
application for retirement annuity filed with the System shall
be paid his own premiums with interest of three per centum
per annum, compounded monthly. If on his death he is
eligible for retirement, then the automatic retirement annuity
or the annuity chosen by him previously shall be paid
accordingly.
The above-quoted provisions of subsection (b) of Section
11 of Commonwealth Act 186, as amended by Rep. Act 660,
clearly indicate that there is need for the employee to file an
application for retirement insurance benefits when he
becomes a member of the GSIS, and he should state in his
application the beneficiary of his retirement insurance.
Hence, the beneficiary named in the life insurance does not
automatically become the beneficiary in the retirement
insurance unless the same beneficiary in the life insurance
is so designated in the application for retirement insurance.
Section 24 of Commonwealth Act 186, as amended by Rep.
Act 660, provides for a life insurance fund and for a
retirement insurance fund. There was no such provision in
Com. Act 186 before it was amended by Rep. Act 660. Thus,
subsections (a) and (b) of Section 24 of Commonwealth Act
186, as amended by Rep. Act 660, partly read as follows:
(a) Life insurance fund. — This shall consist of all premiums
for life insurance benefit and/or earnings and savings
therefrom. It shall meet death claims as they may arise or
such equities as any member may be entitled to, under the
conditions of his policy, and shall maintain the required
reserves to the end of guaranteeing the fulfillment of the life
insurance contracts issued by the System ...
(b) Retirement insurance fund. — This shall consist of all
contributions for retirement insurance benefit and of
earnings and savings therefrom. It shall meet annuity
payments and establish the required reserves to the end of
guaranteeing the fulfillment of the contracts issued by the
System. ...
Thus, We see that the GSIS offers two separate and distinct
systems of benefits to its members — one is the life
insurance and the other is the retirement insurance. These
two distinct systems of benefits are paid out from two
distinct and separate funds that are maintained by the
GSIS.
In the case of the proceeds of a life insurance, the same are
paid to whoever is named the beneficiary in the life
insurance policy. As in the case of a life insurance provided
for in the Insurance Act (Act 2427, as amended), the
beneficiary in a life insurance under the GSIS may not
necessarily be a heir of the insured. The insured in a life
insurance may designate any person as beneficiary unless
disqualified to be so under the provisions of the Civil
Code.4 And in the absence of any beneficiary named in the
life insurance policy, the proceeds of the insurance will go to
the estate of the insured.
Retirement insurance is primarily intended for the benefit of
the employee — to provide for his old age, or incapacity,
after rendering service in the government for a required
number of years. If the employee reaches the age of
retirement, he gets the retirement benefits even to the
exclusion of the beneficiary or beneficiaries named in his
application for retirement insurance. The beneficiary of the
retirement insurance can only claim the proceeds of the
retirement insurance if the employee dies before retirement.
If the employee failed or overlooked to state the beneficiary
of his retirement insurance, the retirement benefits will
accrue to his estate and will be given to his legal heirs in
accordance with law, as in the case of a life insurance if no
beneficiary is named in the insurance policy.
It is Our view, therefore, that the respondent GSIS
had correctly acted when it ruled that the proceeds
of the retirement insurance of the late Jose
Consuegra should be divided equally between his
first living wife Rosario Diaz, on the one hand, and
his second wife Basilia Berdin and his children by
her, on the other; and the lower court did not
commit error when it confirmed the action of the
GSIS, it being accepted as a fact that the second
marriage of Jose Consuegra to Basilia Berdin was
contracted in good faith. The lower court has
correctly applied the ruling of this Court in the case
of Lao, et al. vs. Dee Tim, et al., 45 Phil. 739 as
cited in the stipulation of facts and in the decision
appealed from.5 In the recent case of Gomez vs.
Lipana, L-23214, June 30, 1970,6 this Court, in
construing the rights of two women who were
married to the same man — a situation more or
less similar to the case of appellant Basilia Berdin
and appellee Rosario Diaz — held "that since the
defendant's first marriage has not been dissolved
or declared void the conjugal partnership
established by that marriage has not ceased. Nor
has the first wife lost or relinquished her status as
putative heir of her husband under the new Civil
Code, entitled to share in his estate upon his death
should she survive him. Consequently, whether as
conjugal partner in a still subsisting marriage or as
such putative heir she has an interest in the
husband's share in the property here in dispute.... "
And with respect to the right of the second wife,
this 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 such nullity. And inasmuch as the conjugal
partnership formed by the second marriage was
dissolved before judicial declaration of its nullity,
"[t]he only lust and equitable solution in this case
would be to recognize the right of the second wife
to her share of one-half in the property acquired by
her and her husband and consider the other half
as pertaining to the conjugal partnership of the first
marriage."
WHEREFORE, the decision appealed from is affirmed, with
costs against petitioners-appellants. It is so ordered.
A.M. No. 58 June 2, 1977
PEDRO ODAYAT, complainant,
vs.
DEMETRIO AMANTE, respondent.
ANTONIO, J.:
In a verified amended letter-complaint dated March 10,
1973,1 Pedro Odayat charged Atty. Demetrio Z. Amante,
Clerk of Court, Court of First Instance, Branch IX, Basey,
Samar, with oppression, immorality and falsification of a
public document. 2
Briefly stated, complainant's basic allegations are: (1) that
respondent grabbed a portion of complainant's land, and,
when this latter resented, the former arrogantly challenged
the complainant to bring the matter to court; (2) that
respondent is cohabiting with one Beatriz Jornada, with
whom he begot many children, even while his spouse
Filomena Abella is still alive; and (3) that respondent,
although married, falsely represented his status as single in
the information sheet be submitted in connection with his
appointment to his present position as Clerk of Court.
After respondent Demetrio Amante had submitted his
letter-comment dated April 24, 1973, 3 which was
considered as his answer to the amended complaint, this
Court, in its minute resolution of July 16, 1974, 4 referred
this Administrative Matter No. P-58 to the Executive Judge
of the Court of First Instance, Branch I, Catbalogan, Samar,
for investigation, report and recommendation, and the
matter was docketed therein as Administrative Case No.
264. The charges were investigated by District Judge
Segundo M. Zosa of said Court. After appropriate
proceedings, Judge Zosa submitted to this Court his Report
and Recommendation dated December 3,1974. 5
1. Oppression. — In the course of formal investigation on
August 26, 1974 before Judge Zosa, complainant
acquiesced to the dropping of this charge of oppression
against respondent, inasmuch as the issue involved therein
refers to a boundary dispute between the complainant and
the respondent and admittedly being more properly a cause
for a civil action. 6 Hence, the scope of the investigation by
Judge Zosa is limited to the other two charges.
2. Immorality. — To prove this charge of immorality against
respondent, complainant Pedro Odayat testified and
presented Exhibits "A" to "E", to the effect that respondent
and Filomena Abella were married in Tacloban City on
October 16, 1948 before Judge Eugenio Brillo (then Justice
of the Peace of Tacloban, Leyte; 7 ) that they had one son,
who was born on August 23, 1949 and baptized on October
1, 1949 by the name of Romeo Amante, in the Sto. Nino
Church, Tacloban City, by Rev. Fr. Magdaleno Agnes; 8 that
he came to know Filomena Abella, who is a native of Sta.
Rita, Samar, only after her marriage to the respondent when
they took up their residence for five years in Basey, Samar;
that he did not know if Filomena Abella was still single when
she married the respondent; that long before he filed his
complaint against respondent on March 10, 1973, he came
to know that the respondent and one Beatriz Jornado were
living as husband and wife in Basey, Samar; that they had
several children, two of whom are Maria Felisa J. Amante,
who was born on April 12, 1967, as per certified true copy of
the Certificate of Birth of said child, 9 duly signed and issued
on May 7, 1973 by Perfecto Cabuquit, the Local Civil
Registrar, 10 and Alma Amante y Jornada, who was born on
April 8, 1965 and baptized on July 5, 1965, as per
Certificate of Baptism, duly signed and issued on March 6,
1973 by the Parish Priest, Rev. Fr. Jose M. Lentejas; 11 and
that one of the reasons why he filed his complaint against
the respondent was because of their land dispute.
On the other hand, respondent Demetrio Amante testified,
in his behalf, and presented Atty. Demosthenes Duquilla, as
well as Exhibits "1" and "2". Respondent admits his
marriage with Filomena Abella on October 16, 1948.12 He
also admits that he has been living with Beatriz Jornada,
whom he married on April 4, 1964 during a religious revival
in Almagro, Samar, before Rev. Fr. John Belly, a
Franciscan Missionary, 13 and with whom he begot six (6)
children.14 Respondent, however, claims he was coerced
into marrying Filomena Abella, unaware that she was
already married to another man, and they separated in 1949
after Filomena Abella told him of her previous marriage; that
from 1949 to 1964, the respondent did not hear or received
any communication from Filomena Abella, much
less knew of her whereabouts.
To rebut the charge of immorality, respondent
presented in evidence the certification dated
September 12, 1974 of David C. Jacobe, the Local
Civil Registrar of Pateros, Rizal 15 attesting that, in
accordance with the Register of Marriages in his
office, Filomena Abella was married to one Eliseo
Portales on February 16, 1948. Respondent's
contention is that his marriage with Filomena
Abella was void ab initio, because of her previous
marriage with said Eliseo Portales.
The Investigator finds for the respondent and
recommends his exoneration from this charge.
Indeed, there is no question that Filomena Abella's
marriage with the respondent was void ab
initio under Article 80 [4] of the New Civil code, and
no judicial decree is necessary to establish the
invalidity of void marriages. 16
3. Falsification of a This document. — The
Investigator found that the complainant failed to
prove this charge. Contrary to the allegation of the
complainant, the document in question, 17 shows
that the respondent actually placed in "Item 6. Civil
Status" therein the word "Married". 18
In view of the foregoing, We find that the
recommendation of the Investigator is in
accordance with law and the evidence on record.
WHEREFORE, respondent Demetrio Amante is
hereby exonerated from the charges filed against
him by complainant. Let a copy of this decision be
attached to his personal record,
[G.R. No. L-43905. May 30, 1983.]
SERAFIA G. TOLENTINO, Petitioner, v. HON.
EDGARDO L. PARAS, MARIA CLEMENTE and
THE LOCAL CIVIL REGISTRAR OF
PAOMBONG, BULACAN, Respondents.
Amelita G. Tolentino for Petitioner.
Hermin E. Arceo for Maria Clemente.
The Solicitor General for Respondents.
SYLLABUS
1. REMEDIAL LAW; SPECIAL PROCEEDINGS; ACTION
FOR JUDICIAL DECLARATION AS THE SURVIVING
SPOUSE, A PROPER REMEDY, THOUGH THE
ULTIMATE OBJECT IS CORRECTION OF ENTRY
CONTEMPLATED IN ARTICLE 412 OF THE CIVIL CODE
AND RULE 108 OF THE RULES OF COURT. — Although
petitioner’s ultimate objective is the correction of entry
contemplated in Article 412 of the Civil Code and Rule 108
of the Rules of Court, she initially seeks a judicial
declaration that she is the lawful surviving spouse of the
deceased, Amado, in order to lay the basis for the
correction of the entry in the death certificate of said
deceased. The suit below is a proper remedy. It is of an
adversary character as contrasted to a mere summary
proceeding. A claim of right is asserted against one who
has an interest in contesting it. Private respondent, as the
individual most affected, is a party defendant, and has
appeared to contest the petition and defend her interests.
The Local Civil Registrar is also a party defendant.
2. ID.; ID.; REQUIRED PUBLICATION UNDER RULE 108,
RULES OF COURT NOT ABSOLUTELY NECESSARY
WHERE NO OTHER PARTIES ARE INVOLVED. — The
publication required by the Court below pursuant to Rule
108 of the Rules of Court is not absolutely necessary for no
other parties are involved. After all, publication is required to
bar indifferently all who might be minded to make an
objection of any sort against the right sought to be
established. Besides, even assuming that this is a
proceeding under Rule 108, it was the Court that was called
upon to order the publication, but it did not. In the ultimate
analysis, Courts are not concerned so much with the form of
actions as with their substance.
3. ID.; EVIDENCE; PLEA OF GUILT IN BIGAMY; NO
BETTER PROOF OF THE EXISTENCE OF MARRIAGE
THAN THE ADMISSION BY THE ACCUSED. —
Considering that Amado, upon his own plea, was convicted
for Bigamy, that sentence furnishes the necessary proof of
the marital status of petitioner and the deceased. There is
no better proof of marriage than the admission by the
accused of the existence of such marriage. The second
marriage that he contracted with private respondent during
the lifetime of his first spouse is null and void from the
beginning and of no force and effect. No judicial decree is
necessary to establish the invalidity of a void marriage. It
can be safely concluded, then, without need of further proof
nor remand to the Court below, that private respondent is
not the surviving spouse of the deceased Amado, but
petitioner. Rectification of the erroneous entry in the records
of the Local Civil Registrar may, therefore, be validly made.
4. ID.; ID.; PRESUMPTION THAT ENTRIES IN PUBLIC
DOCUMENTS SUCH AS DEATH AND BIRTH
CERTIFICATES ARE CORRECT, DISPUTABLE. — In fine,
since there is no question regarding the invalidity of
Amado’s second marriage with private respondent and that
the entry made in the corresponding local register is thereby
rendered false, it may be corrected. While documents, such
as death and birth certificates, are public and entries therein
are presumed to be correct, such presumption is merely
disputable and will have to yield to more positive evidence
establishing their inaccuracy.
DECISION
MELENCIO-HERRERA, J.:
The reversal of respondent Court’s Order, dismissing
petitioner’s suit for her "declaration . . . as the lawful
surviving spouse of deceased Amado Tolentino and the
correction of the death certificate of the same", is sought in
this Petition for Review on Certiorari.
The records disclose that Amado Tolentino had contracted
a second marriage with private respondent herein, Maria
Clemente, at Paombong, Bulacan, on November 1, 1948
(Annex "C", Petition), while his marriage with petitioner,
Serafia G. Tolentino, celebrated on July 31, 1943, was still
subsisting (Annex "A", Petition).chanrobles law
library
Petitioner charged Amado with Bigamy in Criminal
Case No. 2768 of the Court of First Instance of
Bulacan, Branch II, which Court, upon Amado’s
plea of guilty, sentenced him to suffer the
corresponding penalty. After Amado had served
the prison sentence imposed on him, he continued
to live with private respondent until his death on
July 25, 1974. His death certificate carried the
entry "Name of Surviving Spouse — Maria
Clemente.."
In Special Proceedings No. 1587-M for Correction
of Entry, petitioner sought to correct the name of
the surviving spouse in the death certificate from
"Maria Clemente" to "Serafia G. Tolentino", her
name. The lower Court dismissed the petition "for
lack of the proper requisites under the law" and
indicated the need for a more detailed proceeding.
Conformably thereto, petitioner filed the case
below against private respondent and the Local
Civil Registrar of Paombong, Bulacan, for her
declaration as the lawful surviving spouse, and the
correction of the death certificate of Amado. In an
Order, dated October 21, 1975, respondent Court,
upon private respondent’s instance, dismissed the
case, stating:jgc:chanrobles.com.ph
"The Motion to Dismiss filed by the defendants in
this case, thru counsel Atty. Hermin E. Arceo, for
the reasons therein mentioned, is hereby
GRANTED. Further: (1) the correction of the entry
in the Office of the Local Civil Registrar is not the
proper remedy because the issue involved is
marital relationship; (2) the Court has not acquired
proper jurisdiction because as prescribed under
Art. 108, read together with Art. 412 of the Civil
Code — publication is needed in a case like this,
and up to now, there has been no such publication;
and (3) in a sense, the subject matter of this case
has been aptly discussed in Special Proceeding
No. 1587-M, which this Court has already
dismissed, also for lack of the proper requisites
under the law.
"In view of the above dismissal, all other motions in this
case are hereby considered MOOT and ACADEMIC.
"SO ORDERED." 1
Thus, petitioner’s present recourse mainly challenging the
grounds relied upon by respondent Court in ordering
dismissal.
We rule for Petitioner.
First, for the remedy. Although petitioner’s ultimate objective
is the collection of entry contemplated in Article 412 of the
Civil Code and Rule 108 of the Rules of Court, she initially
seeks a judicial declaration that she is the lawful surviving
spouse of the deceased, Amado, in order to lay the basis for
the correction of the entry in the death certificate of said
deceased. The suit below is a proper remedy. It is of an
adversary character as contrasted to a mere summary
proceeding. A claim of right is asserted against one who
has an interest in contesting it. Private respondent, as the
individual most affected; is a party defendant, and has
appeared to contest the petition and defend her interests.
The Local Civil Registrar is also a party defendant. The
publication required by the Court below pursuant to Rule
108 of the Rules of Court is not absolutely necessary for no
other parties are involved. After all, publication is required to
bar indifferently all who might be minded to make an
objection of any sort against the right sought to be
established. 2 Besides, even assuming that this is a
proceeding under Rule 108, it was the Court that was called
upon to order the publication, 3 but it did not. In the ultimate
analysis, Courts are not concerned so much with the form of
actions as with their substance. 4
Second, for the merits. Considering that Amado, upon his
own plea, was convicted for Bigamy, that sentence
furnishes the necessary proof of the marital status of
petitioner and the deceased. There is no better proof of
marriage than the admission by the accused of the
existence of such marriage. 5 The second marriage that he
contracted with private respondent during the lifetime of his
first spouse is null and void from the beginning and of no
force and effect. 6 No judicial decree is necessary to
establish the invalidity of a void marriage. 7 It can be safely
concluded, then, without need of further proof nor remand to
the Court below, that private respondent is not the surviving
spouse of the deceased Amado, but petitioner. Rectification
of the erroneous entry in the records of the Local Civil
Registrar may, therefore, be validly made.chanrobles.com :
virtual law library
Having arrived at the foregoing conclusion, the other issues
raised need no longer be discussed.
In fine, since there is no question regarding the invalidity of
Amado’s second marriage with private respondent and that
the entry made in the corresponding local register is thereby
rendered false, it may be corrected. 8 While documents,
such as death and birth certificates, are public and entries
therein are presumed to be correct, such presumption is
merely disputable and will have to yield to more positive
evidence establishing their inaccuracy. 9
WHEREFORE, the Order, dated October 21, 1975, of
respondent Court is hereby set aside and petitioner, Serafia
G. Tolentino, hereby declared the surviving spouse of the
deceased Amado Tolentino. Let the corresponding
correction be made in the latter’s death certificate in the
records of the Local Civil Registrar of Paombong, Bulacan.
No costs.
SO ORDERED.
[G.R. No. L-43905. May 30, 1983.]
SERAFIA G. TOLENTINO, Petitioner, v. HON. EDGARDO
L. PARAS, MARIA CLEMENTE and THE LOCAL CIVIL
REGISTRAR OF PAOMBONG, BULACAN, Respondents.
Amelita G. Tolentino for Petitioner.
Hermin E. Arceo for Maria Clemente.
The Solicitor General for Respondents.
SYLLABUS
1. REMEDIAL LAW; SPECIAL PROCEEDINGS;
ACTION FOR JUDICIAL DECLARATION AS THE
SURVIVING SPOUSE, A PROPER REMEDY,
THOUGH THE ULTIMATE OBJECT IS
CORRECTION OF ENTRY CONTEMPLATED IN
ARTICLE 412 OF THE CIVIL CODE AND RULE
108 OF THE RULES OF COURT. — Although
petitioner’s ultimate objective is the correction of
entry contemplated in Article 412 of the Civil Code
and Rule 108 of the Rules of Court, she initially
seeks a judicial declaration that she is the lawful
surviving spouse of the deceased, Amado, in order
to lay the basis for the correction of the entry in the
death certificate of said deceased. The suit below
is a proper remedy. It is of an adversary character
as contrasted to a mere summary proceeding. A
claim of right is asserted against one who has an
interest in contesting it. Private respondent, as the
individual most affected, is a party defendant, and
has appeared to contest the petition and defend
her interests. The Local Civil Registrar is also a
party defendant.
2. ID.; ID.; REQUIRED PUBLICATION UNDER
RULE 108, RULES OF COURT NOT
ABSOLUTELY NECESSARY WHERE NO
OTHER PARTIES ARE INVOLVED. — The
publication required by the Court below pursuant
to Rule 108 of the Rules of Court is not absolutely
necessary for no other parties are involved. After
all, publication is required to bar indifferently all
who might be minded to make an objection of any
sort against the right sought to be established.
Besides, even assuming that this is a proceeding
under Rule 108, it was the Court that was called
upon to order the publication, but it did not. In the
ultimate analysis, Courts are not concerned so
much with the form of actions as with their
substance.
3. ID.; EVIDENCE; PLEA OF GUILT IN BIGAMY;
NO BETTER PROOF OF THE EXISTENCE OF
MARRIAGE THAN THE ADMISSION BY THE
ACCUSED. — Considering that Amado, upon his
own plea, was convicted for Bigamy, that sentence
furnishes the necessary proof of the marital status
of petitioner and the deceased. There is no better
proof of marriage than the admission by the
accused of the existence of such marriage. The second
marriage that he contracted with private respondent during
the lifetime of his first spouse is null and void from the
beginning and of no force and effect. No judicial decree is
necessary to establish the invalidity of a void marriage. It
can be safely concluded, then, without need of further proof
nor remand to the Court below, that private respondent is
not the surviving spouse of the deceased Amado, but
petitioner. Rectification of the erroneous entry in the records
of the Local Civil Registrar may, therefore, be validly made.
4. ID.; ID.; PRESUMPTION THAT ENTRIES IN PUBLIC
DOCUMENTS SUCH AS DEATH AND BIRTH
CERTIFICATES ARE CORRECT, DISPUTABLE. — In fine,
since there is no question regarding the invalidity of
Amado’s second marriage with private respondent and that
the entry made in the corresponding local register is thereby
rendered false, it may be corrected. While documents, such
as death and birth certificates, are public and entries therein
are presumed to be correct, such presumption is merely
disputable and will have to yield to more positive evidence
establishing their inaccuracy.
DECISION
MELENCIO-HERRERA, J.:
The reversal of respondent Court’s Order, dismissing
petitioner’s suit for her "declaration . . . as the lawful
surviving spouse of deceased Amado Tolentino and the
correction of the death certificate of the same", is sought in
this Petition for Review on Certiorari.
The records disclose that Amado Tolentino had contracted
a second marriage with private respondent herein, Maria
Clemente, at Paombong, Bulacan, on November 1, 1948
(Annex "C", Petition), while his marriage with petitioner,
Serafia G. Tolentino, celebrated on July 31, 1943, was still
subsisting (Annex "A", Petition).chanrobles law library
Petitioner charged Amado with Bigamy in Criminal Case No.
2768 of the Court of First Instance of Bulacan, Branch II,
which Court, upon Amado’s plea of guilty, sentenced him to
suffer the corresponding penalty. After Amado had served
the prison sentence imposed on him, he continued to live
with private respondent until his death on July 25, 1974. His
death certificate carried the entry "Name of Surviving
Spouse — Maria Clemente.."
In Special Proceedings No. 1587-M for Correction of Entry,
petitioner sought to correct the name of the surviving
spouse in the death certificate from "Maria Clemente" to
"Serafia G. Tolentino", her name. The lower Court
dismissed the petition "for lack of the proper requisites
under the law" and indicated the need for a more detailed
proceeding.
Conformably thereto, petitioner filed the case below against
private respondent and the Local Civil Registrar of
Paombong, Bulacan, for her declaration as the lawful
surviving spouse, and the correction of the death certificate
of Amado. In an Order, dated October 21, 1975, respondent
Court, upon private respondent’s instance, dismissed the
case, stating:jgc:chanrobles.com.ph
"The Motion to Dismiss filed by the defendants in this case,
thru counsel Atty. Hermin E. Arceo, for the reasons therein
mentioned, is hereby GRANTED. Further: (1) the correction
of the entry in the Office of the Local Civil Registrar is not
the proper remedy because the issue involved is marital
relationship; (2) the Court has not acquired proper
jurisdiction because as prescribed under Art. 108, read
together with Art. 412 of the Civil Code — publication is
needed in a case like this, and up to now, there has been no
such publication; and (3) in a sense, the subject matter of
this case has been aptly discussed in Special Proceeding
No. 1587-M, which this Court has already dismissed, also
for lack of the proper requisites under the law.
"In view of the above dismissal, all other motions in this
case are hereby considered MOOT and ACADEMIC.
"SO ORDERED." 1
Thus, petitioner’s present recourse mainly challenging the
grounds relied upon by respondent Court in ordering
dismissal.
We rule for Petitioner.
First, for the remedy. Although petitioner’s ultimate
objective is the collection of entry contemplated in
Article 412 of the Civil Code and Rule 108 of the
Rules of Court, she initially seeks a judicial
declaration that she is the lawful surviving spouse
of the deceased, Amado, in order to lay the basis
for the correction of the entry in the death
certificate of said deceased. The suit below is a
proper remedy. It is of an adversary character as
contrasted to a mere summary proceeding. A
claim of right is asserted against one who has an
interest in contesting it. Private respondent, as the
individual most affected; is a party defendant, and
has appeared to contest the petition and defend
her interests. The Local Civil Registrar is also a
party defendant. The publication required by the
Court below pursuant to Rule 108 of the Rules of
Court is not absolutely necessary for no other
parties are involved. After all, publication is
required to bar indifferently all who might be
minded to make an objection of any sort against
the right sought to be established. 2 Besides, even
assuming that this is a proceeding under Rule 108,
it was the Court that was called upon to order the
publication, 3 but it did not. In the ultimate analysis,
Courts are not concerned so much with the form of
actions as with their substance. 4
Second, for the merits. Considering that Amado,
upon his own plea, was convicted for Bigamy, that
sentence furnishes the necessary proof of the
marital status of petitioner and the deceased.
There is no better proof of marriage than the
admission by the accused of the existence of such
marriage. 5 The second marriage that he
contracted with private respondent during the
lifetime of his first spouse is null and void from the
beginning and of no force and effect. 6 No judicial
decree is necessary to establish the invalidity of a
void marriage. 7 It can be safely concluded, then,
without need of further proof nor remand to the
Court below, that private respondent is not the
surviving spouse of the deceased Amado, but
petitioner. Rectification of the erroneous entry in
the records of the Local Civil Registrar may,
therefore, be validly made.chanrobles.com : virtual
law library
Having arrived at the foregoing conclusion, the other issues
raised need no longer be discussed.
In fine, since there is no question regarding the invalidity of
Amado’s second marriage with private respondent and that
the entry made in the corresponding local register is thereby
rendered false, it may be corrected. 8 While documents,
such as death and birth certificates, are public and entries
therein are presumed to be correct, such presumption is
merely disputable and will have to yield to more positive
evidence establishing their inaccuracy. 9
WHEREFORE, the Order, dated October 21, 1975, of
respondent Court is hereby set aside and petitioner, Serafia
G. Tolentino, hereby declared the surviving spouse of the
deceased Amado Tolentino. Let the corresponding
correction be made in the latter’s death certificate in the
records of the Local Civil Registrar of Paombong, Bulacan.
No costs.
SO ORDERED.
G.R. No. L-53703 August 19, 1986
LILIA OLIVA WIEGEL, petitioner,
vs.
THE HONORABLE ALICIA V. SEMPIO-DIY (as presiding
judge of the Juvenile and Domestic Relations Court of
Caloocan City) and KARL HEINZ WIEGEL, respondents.
Dapucanta, Dulay & Associates for petitioner.
Siguion Reyna, Montecillo and Ongsiako Law Office for
private respondent.
PARAS, J.:
In an action (Family Case No. 483) filed before the erstwhile
Juvenile and Domestic Relations Court of Caloocan City,
herein respondent Karl Heinz Wiegel (plaintiff therein)
asked for the declaration of Nullity of his marriage
(celebrated on July, 1978 at the Holy Catholic Apostolic
Christian Church Branch in Makati, Metro Manila) with
herein petitioner Lilia Oliva Wiegel (Lilia, for short, and
defendant therein) on the ground of Lilia's previous existing
marriage to one Eduardo A. Maxion, the ceremony having
been performed on June 25, 1972 at our Lady of Lourdes
Church in Quezon City. Lilia, while admitting the existence
of said prior subsisting marriage claimed that said marriage
was null and void, she and the first husband Eduardo A.
Maxion having been allegedly forced to enter said marital
union. In the pre-trial that ensued, the issue agreed upon by
both parties was the status of the first marriage (assuming
the presence of force exerted against both parties): was
said prior marriage void or was it merely voidable?
Contesting the validity of the pre-trial order, Lilia asked the
respondent court for an opportunity to present evidence-
(1) that the first marriage was vitiated by force exercised
upon both her and the first husband; and
(2) that the first husband was at the time of the marriage in
1972 already married to someone else.
Respondent judge ruled against the presentation of
evidence because the existence of force exerted on both
parties of the first marriage had already been agreed upon.
Hence, the present petition for certiorari assailing the
following Orders of therespondent Judge-
(1) the Order dated March 17, 1980 in which the parties
were compelled to submit the case for resolution based on
"agreed facts;" and
(2) the Order dated April 14, 1980, denying petitioner's
motion to allow her to present evidence in her favor.
We find the petition devoid of merit.
There is no need for petitioner to prove that her first
marriage was vitiated by force committed against both
parties because assuming this to be so, the marriage will
not be void but merely viodable (Art. 85, Civil Code), and
therefore valid until annulled. Since no annulment has yet
been made, it is clear that when she married respondent
she was still validly married to her first husband,
consequently, her marriage to respondent is VOID
(Art. 80, Civil Code).
There is likewise no need of introducing evidence
about the existing prior marriage of her first
husband at the time they married each other, for
then such a marriage though void still needs
according to this Court a judicial declaration 1 of
such fact and for all legal intents and purposes she
would still be regarded as a married woman at the
time she contracted her marriage with respondent
Karl Heinz Wiegel); accordingly, the marriage of
petitioner and respondent would be regarded
VOID under the law.
WHEREFORE, this petition is hereby DISMISSED,
for lack of merit, and the Orders complained of are
hereby AFFIRMED. Costs against petitioner.
SO ORDERED.
G.R. No. L-40003 October 28, 1986
SHIRLEY YAP, in her own behalf and in her
capacity as Administratrix of the estate of
MANING YAP, JAIME YAP, and TALINA
BIANONG VDA. DE YAP, petitioners,
vs.
COURT OF APPEALS, NANCY J. YAP, MANING
YAP, JR., JULIA YAP, JASMIN YAP, and
SAMUEL YAP, respondents.
Francisco Villanueva for petitioners.
Ramon Tuangco for respondents.
GUTIERREZ, JR., J.:
This is a petition to review the decision of the Court
of Appeals which set aside the earlier decision of
the then Court of First Instance of Lanao del Sur in
Special Proceeding No. 1334 (R-61), declaring the
petitioners as the legal heirs of the late Maning
Yap entitled to inherit his estate and dismissing the
opposition filed by the private respondents. The dispositive
portion of the decision on appeal reads:
WHEREFORE, the decision appealed from is hereby set
aside and, after a complete and correct inventory is
returned by the administratrix, the entire estate of the
deceased Maning Yap shall be divided into two equal parts,
one-half (1/2) corresponding to the petitioner Talina
Bianong and her children Shirley Yap and Jaime Yap and
the other half corresponding to the oppositors Nancy J. Yap
and her children Maning Yap, Jr., Julia Yap, Jasmin Yap
and Samuel Yap, without pronouncement as to costs.
Maning Yap, during his lifetime married twice: first, to Talina
Bianong in 1939 and second, to Nancy Yap on December
11, 1948.
Maning Yap and Talina Bianong were married at Bara-as
Plantation, Malabang, Lanao del Sur, in accordance with
the Muslim rites and practices prescribed by the Islam
religion professed by both of them. Immediately, after the
marriage, the couple lived in the house of the parents of
Maning Yap at the poblacion of Malabang, Lanao del Sur.
Out of the marriage, four children were born; two of them
died in infancy during the Japanese occupation, while the
two others are petitioners Shirley Yap and Jaime Yap.
While the first marriage was still subsisting, Maning Yap
married Nancy J. Yap on December 11, 1948 in a civil
ceremony performed by District Judge Juan Sarenas of the
Court of First Instance of Cotabato. Nancy Yap entered into
the marriage in the belief that Maning Yap was not a
married man. They had four children, namely respondents
Maning Yap, Jr., Julia Yap, Jasmin Yap and Samuel Yap.
On February 21, 1964, Maning Yap died in Piagapo, Lanao
del Sur, in the crash of an airplane of the Philippine Air
Lines. At the time of his death he, therefore, had two
families living separately about 80 kilometers apart.
On March 3, 1964, Talina Bianong Vda. de Yap filed
Special Proceeding No. 1334 (Intestate Estate of Maning
Yap) before the Court of First Instance of Lanao del Sur,
seeking the issuance of letters of administration for the
estate of Maning Yap. Among other things, the petition
alleged that Maning Yap left personal and real properties all
located at Malabang, Lanao del Sur, with an approximate
value of P100,000.00.
The petition was opposed by Nancy J. Yap and her minor
children on the ground that she is the legitimate widow of
Maning Yap and that Maning Yap, Jr., Julia Yap, Jasmin
Yap and Samuel Yap, all minors, are their legitimate
children.
Talina Bianong was initially appointed special administratrix
of the intestate estate of Maning Yap. However, after a
formal hearing and on recommendation of Talina, the lower
court appointed Shirley Yap as regular administratrix of the
intestate estate of Maning Yap.
Various claims filed by the creditors against the intestate
estate of Maning Yap were duly approved by the court and
paid by the administratrix. Since there still existed a residue
of the intestate estate consisting of real and personal
properties and collectible debts after payments to creditors,
the court set the case for hearing to arrive at a declaration
of heirship for the purpose of liquidating the conjugal
partnership of the late Maning Yap and his surviving spouse
and to determine the heirs entitled to inherit his intestate
estate.
After trial, the lower court rendered decision declaring
Talina Bianong and her children as the legal heirs of Maning
Yap. The dispositive portion of the decision reads:
IN VIEW OF ALL THE FOREGOING, judgment is hereby
rendered:
(a) Declaring Talina Bianong, Shirley Yap and Jaime Yap,
the legal heirs of the late Maning Yap and entitled to inherit
or succeed to his intestate with Talina Bianong, as his
surviving spouse, and Shirleyt Yap and Jaime Yap, as his
surviving legitimate children;
(b) Adjudicating to Talina Bianong one-third (1/3) of the
whole intestate estate of the late Maning Yap, as her share,
pursuant to Art. 996 of the New Civil Code; to Shirley Yap,
the other one-third (1/3) as her share and to Jaime Yap the
remaining one-third (1/3), also as his share, pursuant to Art.
980 in conjunction with Art. 996 of the new Civil Code.
The opposition and claim of the opposition is
hereby dismissed without costs.
Upon appeal by Nancy Yap and her children, the
appellate court reversed and set aside the decision.
As stated earlier, the Court of Appeals ruled that
the estate of Maning Yap should be equally
divided into two equal parts: one-half (1/2) to
Talina Bianong and her children and the other half
(1/2) to Nancy Yap and her children.
The appellate court applied the ruling in Lao
and Lao v. Dee Tim (45 Phil. 739). The facts in the
cited case are similar to the case at bar in that Yap
Siong in his lifetime contracted two marriages; first
to Dee Tim on September 14, 1893 in China with
whom he had three children and second to Maria
Lao on June 24, 1903 with whom he had one child.
Moreover, Maria Lao entered into the marriage
believing that Yap Siong was not then a married
man. Yap Siong died on September 1922 leaving
properties which were claimed by the two families.
In resolving the issue on how the properties of Yap
Siong should be divided, this Court applied the
Leyes de Partidas (Law 1; Title 13, Partida 4), to
wit:
xxx xxx xxx
... [W]here two wome innocently and in good faith
are legally united in holy matrimony to the same
man, their children and each family will be entitled
to one-half of the estate of the husband upon
distribution of his estate. That provision of the
Leyes de Partidas is a very humane and wise law.
It justly protects those who innocently have
entered into the solemn relation of marriage and
their descendants. The good faith of all the parties
will be presumed until the contrary is positive
proved. (Articles 69, Civil Code; Las Leyes de
Matrimonio, section 96; Gaines v. Hennen, 65 U.S.,
553).
A woman who is deceied by a man who
respresents himself as single and who marries him,
she and her children born while the deception
lasted, under the Spanish law, are entitled to all the rights of
a legitimate wife and children. The common law allowing
none of the incidents of a true marriage to follow another
marriage entered into during the continuance of a first, was
early found to work a great injustice upon the innocent
parties to the second marriage, and specially upon the
offspring of such second marriage. ...
The petitioners now contend that Maning Yap died in 1964
when the New Civil Code had already super ed the old
Spanish Civil Code. They state that pursuant to Article 2263
of the New Civil Code, the distribution of the estate of
Maning Yap should be in accordance with, the new codal
provisions and not the Leyes Partidas, which is an old law
no longer applicable,
We agree.
Article 2263, a transitional provision in the New Civil Code
which took effect on August 30, 1950 states:
Rights to the inheritance of a person who died, with or
without a will, before the effectivity of this Code, shall be
governed by the Civil Code of 1889, by other previous laws,
and by the Rules of Court. The inheritance of those who,
with or without a will die after the beginning of the effectivity
of this Code, shall be adjudicated and distributed in
accordance with this new body of laws and by the Rules of
Court; but the testamentary provisions shall be carried out
insofar as they may be permitted by this Code. Therefore,
legitimes, betterments, legacies and bequests shall be
respected; however, their amount shall be reduced if in no
other manner can every compulsory heir be given his full
share according to this Code. (Rule 12a)
The Report of the Code Commission explains the rule, to
wit:
The decisive fact which gives origin to the right of the heirs,
devisees and legatees is the death of the decedent. This is
the basis of the foregoing rule. No heir, devisee or legatee
has any vested right until the moment of such death (Civil
Code, Padilla, Volume VII, 1975, p. 712).
We have accordingly ruled that the rights to the inheritance
of a person who died before the effectivity of the New Civil
Code shall be governed by the Civil Code of 1889, by other
previous laws and by the Rules of Court (See Vidaurrazaga
v. Court of Appeals, 91 Phil. 492; Canales v. Arrogante, 91
Phil. 9; and Morales, et al. v. Yañez, 98 Phil. 677), while the
rights to the inheritance of a person who died after the
effectivity of the New Civil Code shall be governed by the
New Civil Code (Del Prado v. Santos, 18 SCRA 68).
There is no dispute that the marriage of Talina Bianong to
Maning Yap was valid and that the second marriage
contracted by the latter with Nancy Yap was illegal and void
pursuant to Act 3613 of the Philippine Legislature, the
Marriage Law which was in force when the two marriages
were celebrated to wit:
SEC. 29. Illegal Marriages. — 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;
(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 so contracted
being valid in either case until declared null and void by a
competent court.
Bearing this in mind, how must the estate of Maning Yap be
distributed?
The records show that the real and personal properties
under administration in the intestate estate proceedings of
Maning Yap were acquired by Talina Bianong and the
deceased Maning Yap during their marriage. Hence, these
properties, in the absence of any evidence to the contrary
are considered conjugal properties of Talina Bianong and
Maning Yap (Article 142, New Civil Code). Considering that
there was no liquidation of the conjugal partnership of gains
during the lifetime of Maning Yap, such liquidation must be
carried out in the intestate proceedings of Maning Yap, the
deceased spouse as expressly provided in Section 2, Rule
73, Revised Rules of Court (Lapuz v. Eufemio, 43
SCRA 177).
Article 142 of the New Civil Code provides:
By means of the conjugal partnership of gains the
husband and wife place in a common fund the
fruits of their separate property and the income
from their work or industry, and divide equally,
upon the dissolution of the marriage or of the
partnership, the net gains or benefits obtained
indiscriminately by either spouse during the
marriage.
and Article 185 thereof states:
The net remainder of the conjugal partnership of
gains shall be divided equally between the
husband and the wife or their respective heirs,
unless a different basis of division was agreed
upon in the marriage settlements.
Pursuant to these provisions, the net remainder of
the conjugal partnership of gains after money
claims filed by creditors against the intestate
estate of Maning Yap approved by the lower court
have been paid by the administratrix should be
equally divided between Maning Yap and Talina
Bianong as their shares. The one-half share of
Maning Yap would then comprise his intestate
estate to be distributed among his heirs. (See also
Vda. de Delizo v. Delizo, 69 SCRA 216)
Under the law of succession in the New Civil Code,
Maning Yap's legal heirs are Talina Bianong, her
children Shirley Yap and Jaime Yap and the
children of Nancy Yap by Maning Yap namely:
Maning Yap, Jr., Julia Yap, Jasmin Yap and
Samuel Yap. Talina Bianong, the first wife had not
lost or relinquished her status as putative heir of
her husband. She is entitled to share in Maning
Yap's estate upon his death (Gomez v. Lipana, 33
SCRA 615). On the other hand, Nancy Yap, the
second wife cannot inherit from Maning Yap
because their marriage was void ab initio. (Art. 83,
New Civil Code; People v. Mendoza, 95 Phil. 845)
However, Nancy Yap's children by Maning Yap have the
status of natural children by legal fiction and are considered
compulsory heirs of the late Maning Yap. (Articles 89 and
887, New Civil Code).
Considering the foregoing, the estate of Maning Yap which
is one-half (1/2) pro indiviso of the net remainder of the
conjugal partnership of gains of the first marriage (Articles
142 and 185 New Civil Code), the other half being the share
of Talina Bianong, should be distributed as follows:
a. To the legitimate children, Shirley Yap and Jaime
Yap-one-half (1/2) of the resulting net estate to be divided
equally between them pursuant to Article 888 of the New
Civil Code;
b. To the legitimate widow Talina Bianong one-fourth (1/4)
of the net estate taken from the free portion or disposable
half of the estate pursuant to Article 999 in relation. to
Article 897 of the New Civil Code; and
c. To the natural children by legal fiction --Maning Yap, Jr.,
Julia Yap, Jasmin Yap and Samuel Yap-the remaining
one-fourth (1/4) of the net estate to be shared equally
between them pursuant to the first and third paragraphs of
Article 895 in relation to Article 983 of the New Civil Code.
WHEREFORE, the instant PETITION is GRANTED. The
questioned decision of the Court of Appeals is hereby
REVERSED and SET ASIDE. The widow, Talina Bianong
shall receive one half (1/2) of the whole intestate estate as
her share in the net remainder of the conjugal partnership of
gains. The other half, which is the net estate of the late
Maning Yap, is distributed and adjudicated as stated above.
SO ORDERED.
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.
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 their void marriage and
such properties be placed under 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. GSIS2 and 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 3 dismissed the
petition. It explained that the case of Yap v. CA4 cited by
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. Aragon6 and People v. Mendoza,7 contends that SP. No.
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.8 Petitioner
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, 11 the
Court abandoned its 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,12 however, the Court turned
around 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 13 the Court reverted to
the Consuegra case 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. 14 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 be free from legal infirmity is a final
judgment declaring the previous marriage void. 15
The Family Law Revision Committee and the Civil Code
Revision Committee 16 which drafted what is now the
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. 19 The Court, in turning
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."20 In more explicit terms,
the Family Code 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." 21 So
crucial are marriage and the family to the stability
and peace of the nation that their "nature,
consequences, and incidents are governed by law
and not subject to stipulation . . ." 22 As a matter of
policy, therefore, 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. 24 (Emphasis supplied)
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." 25 Other specific effects flowing therefrom, in
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.
[A.M. No. MTJ-95-1070. February 12, 1997]
MARIA APIAG, TERESITA CANTERO
SECUROM and GLICERIO
CANTERO, complainants, vs. JUDGE
ESMERALDO G. CANTERO, Respondent.
DECISION
PANGANIBAN, J.:
Judges ought to be more learned than witty, more
reverend than plausible, and more advised than
confident. Above all things, integrity is their portion
and proper virtue.1chanroblesvirtuallawlibrary
The eminent Francis Bacon wrote the foregoing
exhortation some 400 years ago. Today, it is still
relevant and quotable. By the nature of their
functions, judges are revered as models of
integrity, wisdom, decorum, competence and
propriety. Human as they are, however,
magistrates do have their own weaknesses,
frailties, mistakes and even indiscretions. In the
case before us, respondent Judge Esmeraldo G.
Cantero was charged administratively in the
twilight of his government service, as a result of a
failed love affair that happened some 46 years ago.
After an otherwise unblemished record, he would
have reached the compulsory retirement age of 70
years on August 8, 1997 had death not intervened
a few months ago on September 26, 1996.
Notwithstanding his death, this Court still resolved
to rule on this case, as it may affect his retirement
benefits.
Antecedent Facts
In a letter-complaint2
dated November 10, 1993,
Maria Apiag Cantero with her daughter Teresita A.
Cantero Sacurom and son Glicerio A. Cantero
charged the respondent, Judge Esmeraldo G.
Cantero of the Municipal Circuit Trial Court of
Pinamungajan-Aloquinsan, Cebu, with gross
misconduct for allegedly having committed bigamy and
falsification of public documents.
After receipt of the respondent's Comment, the Court on
February 5, 1996, referred this case3 to Executive Judge
Gualberto P. Delgado of the Regional Trial Court of Toledo
City, Cebu for investigation, report and recommendation.
The latter submitted his Report and
Recommendation4 dated July 26, 1996. Thereafter, the
Court referred this case also to the Office of the Court
Administrator5 for evaluation, report and recommendation.
According to the complainants:
"Sometime in August 11, 1947, defendant (should be
respondent) and plaintiff (should be complainant) Maria
Apiag, joined together in holy matrimony in marriage after
having lived together as husband and wife wherein they
begot a daughter who was born on June 19, 1947, whom
they named: Teresita A. Cantero; and then on October 29,
1953, Glicerio A. Cantero was born. Thereafter, defendant
left the conjugal home without any apparent cause, and
leaving the plaintiff Maria Apiag to raise the two children
with her meager income as a public school teacher at
Hinundayan, Southern Leyte. Plaintiffs suffered a lot after
defendant abandoned them for no reason whatsoever. For
several years, defendant was never heard of and his
whereabout unknown.
Few years ago, defendant surfaced at Hinundayan,
Southern Leyte, whereupon, plaintiffs begged for support,
however, they were ignored by defendant. x x
x"6chanroblesvirtuallawlibrary
On September 21, 1993, complainants, through Atty.
Redentor G. Guyala, wrote a letter to respondent as follows:
"Judge Esmeraldo Cantero
Pinamungajan, Cebu
Dear Judge Cantero:
We are writing in behalf of your legal wife, Maria Apiag, and
your two legitimate children by her, Teresita (Mrs. Sacurom)
and Glicerio.
It appears that sometime in the 1950's for reasons known
only to you, you left your conjugal home at Hinundayan,
Southern Leyte, and abandoned without any means of
support your said wife and children. Since then and up to
now, they have not seen or heard from you.
They would wish now that you do them right by living up to
your duty as husband and father to them, particularly that
expressly provided under Art. 68 and Art. 195 of the Family
Code (Art. 109 and 195 of the Civil Code) in relation to Art.
203 of the same Code.
You will please consider this letter as a formal demand for
maintenance and support for three of them, and a request
that they be properly instituted and named as your
compulsory heirs and legal beneficiaries in all legal
documents now on file and to be filed with the Supreme
Court and other agencies or offices as may be required
under applicable laws, such as, the insurance (GSIS) and
retirement laws.
We hope this matter can be amicably settled among you,
your wife and children, without having to resort to judicial
recourse.
Very truly yours,
(SGD.) REDENTOR G.
GUYALA"7chanroblesvirtuallawlibrary
The letter elicited no action or response from the
respondent. Subsequently, complainants learned that
respondent Judge had another family. In their own words,
"x x x The plaintiffs later on learned that defendant has
another wife by the name of Nieves C. Ygay, a Public
School teacher from Tagao, Pinamungajan, Cebu.
According to some documents obtained by plaintiffs, the
herein defendant and Nieves C. Ygay have children of their
own, named as follows with their date of births: Noralyn Y.
Cantero -- May 19, 1968; Ellen Y. Cantero -- February 4,
1970; Erwin Y. Cantero -- April 29, 1979; Onofre Y. Cantero
-- June 10, 1977; and Desirie Vic Y. Cantero --
December 2, 1981.
It was shocking to the senses that in all of the
public documents required of defendant Judge
Cantero to be filed with the Supreme Court such
as his sworn statement of assets and liabilities, his
personal data sheet (SC Form P. 001), income tax
returns and his insurance policy with the
Government Service Insurance System, defendant
misrepresented himself as being married to Nieves
C. Ygay, with whom he contracted a second
marriage. The truth of the matter is that defendant
is married to plaintiff Maria Apiag with whom they
have two legitimate children, namely: Teresita A.
Cantero and Glicerio A.
Cantero."8chanroblesvirtuallawlibrary
The respondent Judge, in his Comment, explained
his side as follows:
"x x x I admit the existence and form of Annex 'A'
of the said complaint, but vehemently deny the
validity of its due execution, for the truth of the
matter is that such alleged marriage was only
dramatized at the instance of our parents just to
shot (sic) their wishes and purposes on the matter,
without my consent freely given. As a matter of fact,
I was only called by my parents to go home to our
town at Hinundayan, Southern Leyte to attend
party celebration of my sister's birthday from Iligan
City, without patently knowing I was made to
appear (in) a certain drama marriage and we were
forced to acknowledge our signatures appearing in
the duly prepared marriage contract(.) That was 46
years ago when I was yet 20 years of age, and at
my second year high school
days."9chanroblesvirtuallawlibrary
Furthermore, Judge Cantero related that:
"x x x sometime in the year 1947, when both
respondent and complainant, Maria Apiag were
still in their early age and in their second year high
school days, they were engaged in a lovely affair
which resulted to the pregnancy of the said
complainant, and then and there gave birth to a child,
named Teresita Apiag, having (been) born out of wedlock
on June 19, 1947, now Mrs. Teresita Sacurom, one of the
complainants. That in order to save name and shame,
parents of both the respondent and the complainant came
to an agreement to allow the respondent, and the
complainant (to) get married in the (sic) name, but not to live
together as husband, wife for being close relatives, thereby
forcing the respondent to appear in a marriage affair where
all the pertinent marriage papers were all ready (sic)
prepared (sic), and duly signed by somebody; that after the
said affair both respondent and the complainant
immediately separated each other (sic) without living
together as husband, and wife even for a day, nor having
established a conjugal home. From that time respondent
and the complainant have never met each other nor having
(sic) communicated (with) each other for the last 40 years;
that respondent continued his studies at Cebu City, and
eventually became member of the Philippine Bar, having
passed the bar examination in the year 1960, that is 14
years after the affair of 1947; that in 1964, respondent was
first connected in the government service as Comelec
Registrar of the Commission on Elections, assigned at
Pinamungajan, Cebu(,) that is 16 years after the affair of
1947; that in the year 1982, respondent was appointed as
CLAO lawyer, now PAO, of the Department of Justice, that
is 35 years after the after the affair of 1947; and finally, on
October 3, 1989, respondent was appointed to the Judiciary
as Municipal Circuit Trial Judge (MCTC) of the
Municipalities of Pinamungajan and Aloguinsan, province of
Cebu, that is 42 years from August 11, 1947; that
respondent is (sic) already 32 years in the government
service up to the present time with more than 6 years in the
Judiciary; that respondent is already 69 years old, having
been born on August 8, 1927, and retirable by next year if
God willing; that respondent has served in the government
service for the last 32 years, faithfully, honestly and
judiciously without any complaint whatsoever, except this
instant case; that respondent as member of the Judiciary,
has live-up (sic) to the standard required by the (sic)
member (sic) of the bar and judiciary; that the charges
against the respondent were all based or rooted from the
incedent (sic) that happened on August 11, 1947 and no
other; that the complainants are morally dishonest in filing
the instant (case) just now, an elapsed (sic) of almost 42
years and knowing that respondent (is) retirable by next
year, 1997; that this actuation is very suspicious, and
intriguing;
xxx
That complainant Maria Apiag has been living together with
another man during her public service as public school
teacher and have begotten a child, name (sic) Manuel
Apiag and respondent promised (sic) the Honorable Court
to furnish a complete paper regarding this case in order to
enlighten the Honorable (Court) that, he who seek (sic)
justice must seek justice with cleab (sic) hand;
That respondent did not file any annullment (sic) or judicial
declaration (of nullity) of the alleged marriage because it is
the contention and honest belief, all the way, that the said
marriage was void from the beginning, and as such nothing
is to be voided or nullified, and to do so will be inconsistent
with the stand of the respondent; that this instant case (was)
simply filed for money consideration as reflected in their
letter of demand; (t)hat as a matter of fact, respondent and
the complainant have already signed a compromised (sic)
agreement, copy of which hereto (sic) attached as Annex '1',
stating among other things that respondent will give a
monthly allowance to Terecita (sic) Sacurom in the (amount)
of P4,000.00 and the complainant will withdraw their
complaint from the Supreme Court., and that respondent
had already given the said allowance for three consecutive
months plus the amount of P25,000.00 for their Attorney to
withdraw the case, and that respondent stop (sic) the
monthly allowance until such time the complainant will
actually withdraw the instant case, and without knowledge
of the respondent, complainant proceeded (sic) their
complaint after the elapsed (sic) of three (3)
years."10chanroblesvirtuallawlibrary
Relevant portions of said compromise agreement which
was executed sometime in March 1994 by Esmeraldo C.
Cantero and Teresita C. Sacurom and witnessed by Maria
Apiag and Leovegardo Sacurom are reproduced thus:
"That this COMPROMISE AGREEMENT is executed and
entered into by ESMERALDO C. CANTERO, of legal age,
married, Filipino, and with residence and postal address at
Pinamungajan, Cebu, Philippines, otherwise called as the
FIRST PARTY, and TERESITA C. SACUROM, also of legal
age, married, Filipino, representing her mother and her
brother, and a residence (sic) of 133-A J. Ramos Street,
Caloocan City, after having duly swirn (sic) to in accordance
with law do hereby depose and say:
1. That the First Party is presently a Municipal
Circuit Trial Judge of Pinamungajan-Aloguinsan,
Cebu, is charged by Second Party for Misconduct
before the Office of the Court Administrator of the
Supreme Court now pending action;
2. That the parties have came (sic) to agreement
to have the said case settled amicably in the
interest of family unity and reconciliation, and
arrived at compromise agreement based on law of
equity, as follows:
(a) That both parties have agreed
voluntarily, the Second Party will
get ONE FOURTH (1/4) of the
retirement that the First will receive
from the GSIS, and the rest of it
will be for the First Party;
(b) That the Second Party and his
brother will be included as one of
the beneficiaries of the First Party,
in case of death;
(c) That the Second party and his
only brother will inherit the
properties of the First party
inherited from his parents;
(d) That the Second Party,
representing her brother, is
authorized to receive and
collect P4,000.00, monthly out of
the second check salary of the
First Party (The second half salary
only);
3. That it was further voluntarily agreed that the
Second Party will cause the withdrawal and the
outright dismissal of the said pending case filed by
her and her mother;
4. That it was also agreed that the above
agreement, shall never be effective and
enforceable unless the said case will be withdrawn
and dismiss (sic) from the Supreme Court, and
said dismissal be received by the First Party, otherwise the
above-agreement is void from the beginning; and the
Second Party must desist from further claining (sic) and
filing civil abd (sic) criminal liabilities.
5. That this agreement is executed voluntarily, in good faith,
and in the interest of good will and reconciliation and both
parties is (sic) duty bound to follow faithfully and
religiously."11chanroblesvirtuallawlibrary
In line with the foregoing, the respondent wrote a letter
dated 14 March, 1994 addressed to the Government
Service Insurance System (GSIS) designating Teresita
Cantero Sacurom and Glicerio Cantero as additional
beneficiaries in his life insurance
policy.12chanroblesvirtuallawlibrary
The Issues
The respondent Judge formulated the following "issues":
"1. That the first marriage with the complainant, Maria Apiag
on August 11, 1947 is void;
2. The absence of his first wife complainant Maria Apiag for
more than seven (7) years raise the presumption that she is
already dead, that there was no need for any judicial
declaration;
3. The charge of Grave Misconduct is not applicable to him
because assuming that he committed the offense, he was
not yet a member of the judiciary;
4. The crime of Bigamy and Falsification had already
prescribed;
5. The charges have no basis in fact and in
law."13chanroblesvirtuallawlibrary
Report and Recommendation of Investigating Judge and
Court Administrator
Investigating Judge Gualberto P. Delgado recommended in
his report that:
"After a careful perusal of the evidence submitted by the
parties, this Office finds respondent Guilty of the crime of
Grave Misconduct (Bigamy and Falsification of Public
Documents) however, considering his length of service in
the government, it is recommended that he be suspended
for one (1) year without pay."14chanroblesvirtuallawlibrary
The Office of the Court Administrator also submitted its
report15 recommending respondent Judge's dismissal, as
follows:
"After a careful review of all the documents on file in this
case, we find no cogent reason to disturb the findings of the
investigating judge.
Extant from the records of the case and as admitted by
respondent, he was married to complainant Maria Apiag on
August 11, 1947 and have (sic) two (2) children with her.
Respondent's contention that such marriage was in jest and
assuming that it was valid, it has lost its validity on the
ground that they never met again nor have communicated
with each other for the last 40 years cannot be given a (sic)
scant consideration. Respondent's argument that he was
not yet a lawyer, much more, a member of the bench when
he contracted his first marriage with the complainant, is
unavailing for having studied law and had become a
member of the Bar in 1960, he knows that the marriage
cannot be dissolved without a judicial declaration of death.
Respondent's second marriage with Nieves Ygay was
therefore bigamous for it was contracted during the
existence of a previous marriage.
We are likewise not persuaded by the assertion of the
respondent that he cannot be held liable for misconduct on
the ground that he was not yet a lawyer nor a judge when
the act(s) complained of were committed. The infraction he
committed continued from the time he became a lawyer in
1960 to the time he was appointed as a judge in October 23,
1989. This is a continuing offense (an unlawful act
performed continuously or over and over again, Law
Dictionary, Robert E. Rothenberg). He can therefore be
held liable for his misdeeds.
On the charge of falsification, it was shown with clarity in his
Personal Data Sheet for Judges, Sworn Statement of
Assets, Liabilities and Networth, Income Tax Return (pp.
99-102, rollo), that he had committed a
misrepresentation by stating therein that his
spouse is Nieves Ygay and (had) eight (8) children
(with her) which is far from (the) truth that his wife
is Maria Apiag with whom he had two (2) children.
Aside from the admission, the untenable line of
defense by the respondent presupposes the
imposition of an administrative sanction for the
charges filed against him. 'A judge's actuation of
cohabiting with another when his marriage was still
valid and subsisting - his wife having been
allegedly absent for four years only constitutes
gross immoral conduct' (Abadilla vs. Tabiliran Jr.,
249 SCRA 447). It is evident that respondent failed
to meet the standard of moral fitness for
membership in the legal profession. While deceit
employed by respondent, existed prior to his
appointment as a x x x Judge, his immoral and
illegal act of cohabiting with x x x began and
continued when he was already in the judiciary. 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 guidepost to(sic)
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 (Atienza vs. Brilliantes, Jr., 243 SCRA
32-33).
ACCORDINGLY, it is respectfully recommended
that respondent judge be DISMISSED from the
service with forfeiture of all leave and retirement
benefits and with prejudice to re-appointment in
any branch, instrumentality or agency of the
government, including government-owned and
controlled corporations."
As earlier indicated, respondent Judge died on
September 27, 1996 while this case was still being
deliberated upon by this Court.
The Court's Ruling
In spite of his death, this Court decided to resolve this case
on the merits, in view of the foregoing recommendation of
the OCA which, if affirmed by this Court, would mean
forfeiture of the death and retirement of the respondent.
Gross Misconduct Not Applicable
The misconduct imputed by the complainants against the
judge comprises the following: abandonment of his first wife
and children, failing to give support, marrying for the second
time without having first obtained a judicial declaration of
nullity of his first marriage, and falsification of public
documents. Misconduct, as a ground for administrative
action, has a specific meaning in law.
"'Misconduct in office has definite and well understood legal
meaning. By uniform legal definition, it is a misconduct such
as affects his performance of his duties as an officer and not
such only as affects his character as a private individual. In
such cases, it has been said at all times, it is necessary to
separate the character of man from the character of an
officer. x x x It is settled that misconduct, misfeasance, or
malfeasance warranting removal from office of an officer,
must have direct relation to and be connected with the
performance of official duties x x x.' More specifically, in
Buenaventura vs. Benedicto, an administrative proceeding
against a judge of the court of first instance, the present
Chief Justice defines misconduct as referring 'to a
transgression of some established and definite rule of
action, more particularly unlawful behavior or gross
negligence by the public officer.' That is to abide by the
authoritative doctrine as set forth in the leading case of In re
Horilleno, a decision penned by Justice Malcolm, which
requires that in order for serious misconduct to be shown,
there must be 'reliable evidence showing that the judicial
acts complained of were corrupt or inspired by an intention
to violate the law or were in persistent disregard of
well-known legal rules.'"16
The acts imputed against respondent Judge Cantero clearly
pertain to his personal life and have no direct relation to his
judicial function. Neither do these misdeeds directly relate
to the discharge of his official responsibilities. Therefore,
said acts cannot be deemed misconduct much less gross
misconduct in office. For any of the aforementioned acts of
Judge Cantero" x x x (t)o warrant disciplinary action, the act
of the judge must have a direct relation to the performance
of his official duties. It is necessary to separate the
character of the man from the character of the
officer."17chanroblesvirtuallawlibrary
Nullity of Prior Marriage
It is not disputed that respondent did not obtain a judicial
declaration of nullity of his marriage to Maria Apiag prior to
marrying Nieves C. Ygay. He argued however that the first
marriage was void and that there was no need to have the
same judicially declared void, pursuant to jurisprudence
then prevailing. In the en banc case of Odayat vs.
Amante,18 complainant charged Amante, a clerk of court,
with oppression, immorality and falsification of public
document. The complainant Odayat alleged among others "
x x x that respondent is cohabiting with one Beatriz Jornada,
with whom he begot many children, even while his spouse
Filomena Abella is still alive x x x." In order to rebut the
charge of immorality, Amante " x x x presented in evidence
the certification (of the) x x x Local Civil Registrar x x x
attesting that x x x Filomena Abella was married to one
Eliseo Portales on February 16, 1948. Respondent's
contention is that his marriage with Filomena Abella was
void ab initio, because of her previous marriage with said
Eliseo Portales." This Court ruled that "Filomena Abella's
marriage with the respondent was void ab initio under
Article 80 [4] of the New Civil Code, and no judicial decree
is necessary to establish the invalidity of void marriages." 19
Now, per current jurisprudence, "a marriage though void still
needs x x x a judicial declaration of such fact"20 before any
party thereto "can marry again; otherwise, the second
marriage will also be void."21 This was expressly provided
under Article 4022 of the Family Code. However, the
marriage of Judge Cantero to Nieves Ygay took place and
all their children were born before the promulgation of
Wiegel vs. Sempio-Diy and before the effectivity of the
Family Code. Hence, the doctrine in Odayat vs. Amante
applies in favor of respondent.
On the other hand, the charge of falsification will not
prosper either because it is based on a finding of guilt in the
bigamy charge. Since, as shown in the preceding
discussion, the bigamy charge cannot stand, so too must
the accusation of falsification fail. Furthermore, the
respondent judge's belief in good faith that his first marriage
was void shows his lack of malice in filling up these public
documents, a valid defense in a charge of
falsification of public document,23 which must be
appreciated in his favor.
Personal Conduct of a Judge
However, the absence of a finding of criminal
liability on his part does not preclude this Court
from finding him administratively liable for his
indiscretion, which would have merited disciplinary
action from this Court had death not intervened. In
deciding this case, the Court emphasizes that
"(t)he personal behavior of a judge, not only upon
the bench but also in his everyday life, should be
above reproach and free from the appearance of
impropriety. He should maintain high ethical
principles and sense of propriety without which he
cannot preserve the faith of the people in the
judiciary, so indispensable in an orderly society.
For the judicial office circumscribes the personal
conduct of a judge and imposes a number of
restrictions thereon, which he has to observe
faithfully as the price he has to pay for accepting
and occupying an exalted position in the
administration of justice."24 It is against this
standard that we must gauge the public and
private life of Judge Cantero.
The conduct of the respondent judge in his
personal life falls short of this standard because
the record reveals he had two families. The record
also shows that he did not attend to the needs,
support and education of his children of his first
marriage. Such is conduct unbecoming a trial
magistrate. Thus, the late Judge Cantero "violated
Canon 3 of the Canons of Judicial Ethics which
mandates that '[a] judge's official conduct should
be free from the appearance of impropriety, and
his personal behavior, not only upon the bench
and in the performance of judicial duties, but also
in his everyday life, should be beyond reproach,'
and Canon 2 of the Code of Judicial Conduct
which provides that '[a] judge should avoid
impropriety and the appearance of impropriety in
all activities.'"25chanroblesvirtuallawlibrary
A Penalty of Suspension is Warranted
Finally, the Court also scrutinized the whole of respondent's
record. Other than this case, we found no trace of
wrongdoing in the discharge of his judicial functions from
the time of his appointment up to the filing of this
administrative case, and has to all appearances lived up to
the stringent standards embodied in the Code of Judicial
Conduct. Considering his otherwise untarnished 32 years in
government service,26 this Court is inclined to treat him with
leniency.
Man is not perfect. At one time or another, he may commit a
mistake. But we should not look only at his sin. We should
also consider the man's sincerity in his repentance, his
genuine effort at restitution and his eventual triumph in the
reformation of his life.
This respondent should not be judged solely and finally by
what took place some 46 years ago. He may have
committed an indiscretion in the past. But having repented
for it, such youthful mistake should not forever haunt him
and should not totally destroy his career and render inutile
his otherwise unblemished record. Indeed, it should not
demolish completely what he built in his public life since
then. Much less should it absolutely deprive him and/or his
heirs of the rewards and fruits of his long and dedicated
service in government. For these reasons, dismissal from
service as recommended by the Office of the Court
Administrator would be too harsh.
However, we also cannot just gloss over the fact that he
was remiss in attending to the needs of his children of his
first marriage -- children whose filiation he did not deny. He
neglected them and refused to support them until they came
up with this administrative charge. For such conduct, this
Court would have imposed a penalty. But in view of his
death prior to the promulgation of this Decision, dismissal of
the case is now in order.
WHEREFORE, premises considered, this case is
hereby DISMISSED.
SO ORDERED.
G.R. No. 122749 July 31, 1996
ANTONIO A. S. VALDEZ, petitioner,
vs.
REGIONAL TRIAL COURT, BRANCH 102, QUEZON
CITY, and CONSUELO M.
GOMEZ-VALDEZ, respondents.
VITUG, J.:p
The petition for new bewails, purely on the question of law,
an alleged error committed by the Regional Trial Court in
Civil Case No. Q-92-12539. Petitioner avers that the court a
quo has failed to apply the correct law that should govern
the disposition of a family dwelling in a situation where a
marriage is declared void ab initio because of psychological
incapacity on the part of either or both parties in the
contract.
The pertinent facts giving rise to this incident are, by large,
not in dispute.
Antonio Valdez and Consuelo Gomez were married on 05
January 1971. Begotten during the marriage were five
children. In a petition, dated 22 June 1992, Valdez sought
the declaration of nullity of the marriage pursuant to Article
36 of the Family code (docketed Civil Case No. Q-92-12539,
Regional Trial Court of Quezon City, Branch 102). After the
hearing the parties following the joinder of issues, the trial
court,1 in its decision of 29 July 1994, granted the
petition, viz:
WHEREFORE, judgment is hereby rendered as follows:
(1) The marriage of petitioner Antonio Valdez and
respondent Consuelo Gomez-Valdez is hereby declared
null and void under Article 36 of the Family Code on the
ground of their mutual psychological incapacity to comply
with their essential marital obligations;
(2) The three older children, Carlos Enrique III, Antonio
Quintin and Angela Rosario shall choose which parent they
would want to stay with.
Stella Eloisa and Joaquin Pedro shall be placed in
the custody of their mother, herein respondent
Consuelo Gomez-Valdes.
The petitioner and respondent shall have visitation
rights over the children who are in the custody of
the other.
(3) The petitioner and the respondent are directed
to start proceedings on the liquidation of their
common properties as defined by Article 147 of
the Family Code, and to comply with the provisions
of Articles 50, 51, and 52 of the same code, within
thirty (30) days from notice of this decision.
Let a copy of this decision be furnished the Local
Civil Registrar of Mandaluyong, Metro Manila, for
proper recording in the registry of
marriages.2 (Emphasis ours.)
Consuelo Gomez sought a clarification of that
portion of the decision directing compliance with
Articles 50, 51 and 52 of the Family Code. She
asserted that the Family Code contained no
provisions on the procedure for the liquidation of
common property in "unions without marriage."
Parenthetically, during the hearing of the motion,
the children filed a joint affidavit expressing their
desire to remain with their father, Antonio Valdez,
herein petitioner.
In an order, dated 05 May 1995, the trial court
made the following clarification:
Consequently, considering that Article 147 of the
Family Code explicitly provides that the property
acquired by both parties during their union, in the
absence of proof to the contrary, are presumed to
have been obtained through the joint efforts of the
parties and will be owned by them in equal shares,
plaintiff and defendant will own their "family
home" and all their properties for that matter in
equal shares.
In the liquidation and partition of properties owned
in common by the plaintiff and defendant, the
provisions on ownership found in the Civil Code shall
apply.3 (Emphasis supplied.)
In addressing specifically the issue regarding the disposition
of the family dwelling, the trial court said:
Considering that this Court has already declared the
marriage between petitioner and respondent as null and
void ab initio, pursuant to Art. 147, the property regime of
petitioner and respondent shall be governed by the rules on
ownership.
The provisions of Articles 102 and 129 of the Family Code
finds no application since Article 102 refers to the procedure
for the liquidation of the conjugal partnership property and
Article 129 refers to the procedure for the liquidation of
the absolute community of property.4
Petitioner moved for a reconsideration of the order. The
motion was denied on 30 October 1995.
In his recourse to this Court, petitioner submits that Articles
50, 51 and 52 of the Family Code should be held controlling:
he argues that:
I
Article 147 of the Family Code does not apply to cases
where the parties are psychologically incapacitated.
II
Articles 50, 51 and 52 in relation to Articles 102 and 129 of
the Family Code govern the disposition of the family
dwelling in cases where a marriage is declared void ab initio,
including a marriage declared void by reason of the
psychological incapacity of the spouses.
III
Assuming arguendo that Article 147 applies to marriages
declared void ab initio on the ground of the psychological
incapacity of a spouse, the same may be read consistently
with Article 129.
IV
It is necessary to determine the parent with whom majority
of the children wish to stay.5
The trial court correctly applied the law. In a void marriage,
regardless of the cause thereof, the property relations of the
parties during the period of cohabitation is governed by the
provisions of Article 147 or Article 148, such as the case
may be, of the Family Code. Article 147 is a remake of
Article 144 of the Civil Code as interpreted and so applied in
previous cases;6 it provides:
Art. 147. When a man and a woman who are capacitated to
marry each other, live exclusively with each other as
husband and wife without the benefit of marriage or under a
void marriage, their wages and salaries shall be owned by
them in equal shares and the property acquired by both of
them through their work or industry shall be governed by the
rules on co-ownership.
In the absence of proof to the contrary, properties acquired
while they lived together shall be presumed to have been
obtained by their joint efforts, work or industry, and shall be
owned by them in equal shares. For purposes of this Article,
a party who did not participate in the acquisition by the other
party of any property shall be deemed to have contributed
jointly in the acquisition thereof in the former's efforts
consisted in the care and maintenance of the family and of
the household.
Neither party can encumber or dispose by acts inter vivos of
his or her share in the property acquired during cohabitation
and owned in common, without the consent of the other,
until after the termination of their cohabitation.
When only one of the parties to a void marriage is in good
faith, the share of the party in bad faith in the ownership
shall be forfeited in favor of their common children. In case
of default of or waiver by any or all of the common children
or their descendants, each vacant share shall belong to the
innocent party. In all cases, the forfeiture shall take place
upon the termination of the cohabitation.
This particular kind of co-ownership applies when a man
and a woman, suffering no illegal impediment to marry each
other, so exclusively live together as husband and
wife under a void marriage or without the benefit of
marriage. The term "capacitated" in the provision
(in the first paragraph of the law) refers to the legal
capacity of a party to contract marriage, i.e., any
"male or female of the age of eighteen years or
upwards not under any of the impediments
mentioned in Articles 37 and 38"7 of the Code.
Under this property regime, property acquired by
both spouses through their work and industry shall
be governed by the rules on equal co-ownership.
Any property acquired during the union is prima
facie presumed to have been obtained through
their joint efforts. A party who did not participate in
the acquisition of the property shall be considered
as having contributed thereto jointly if said party's
"efforts consisted in the care and maintenance of
the family household."8 Unlike the conjugal
partnership of gains, the fruits of the couple's
separate property are not included in the
co-ownership.
Article 147 of the Family Code, in the substance
and to the above extent, has clarified Article 144 of
the Civil Code; in addition, the law now expressly
provides that —
(a) Neither party can dispose or encumber by
act intervivos his or her share in co-ownership
property, without consent of the other, during the
period of cohabitation; and
(b) In the case of a void marriage, any party in bad
faith shall forfeit his or her share in the
co-ownership in favor of their common children; in
default thereof or waiver by any or all of the
common children, each vacant share shall belong
to the respective surviving descendants, or still in
default thereof, to the innocent party. The forfeiture
shall take place upon the termination of the
cohabitation9 or declaration of nullity of the
marriage. 10
When the common-law spouses suffer from a legal
impediment to marry or when they do not live
exclusively with each other (as husband and wife), only the
property acquired by both of them through their actual joint
contribution of money, property or industry shall be owned
in common and in proportion to their respective
contributions. Such contributions and corresponding shares,
however, are prima facie presumed to be equal. The share
of any party who is married to another shall accrue to the
absolute community or conjugal partnership, as the case
may be, if so existing under a valid marriage. If the party
who has acted in bad faith is not validly married to another,
his or her share shall be forfeited in the manner already
heretofore expressed. 11
In deciding to take further cognizance of the issue on the
settlement of the parties' common property, the trial court
acted neither imprudently nor precipitately; a court which
has jurisdiction to declare the marriage a nullity must be
deemed likewise clothed in authority to resolve incidental
and consequential matters. Nor did it commit a reversible
error in ruling that petitioner and private respondent own the
"family home" and all their common property in equal
shares, as well as in concluding that, in the liquidation and
partition of the property owned in common by them, the
provisions on co-ownership under the Civil Code, not
Articles 50, 51 and 52, in relation to Articles 102 and
129, 12 of the Family Code, should aptly prevail. The rules
set up to govern the liquidation of either the absolute
community or the conjugal partnership of gains, the
property regimes recognized for valid and voidable
marriages (in the latter case until the contract is annulled),
are irrelevant to the liquidation of the co-ownership that
exists between common-law spouses. The first paragraph
of Articles 50 of the Family Code, applying paragraphs (2),
(3), (4) and 95) of Article 43, 13 relates only, by its explicit
terms, to voidable marriages and, exceptionally,
to void marriages under Article 40 14 of the Code, i.e., the
declaration of nullity of a subsequent marriage contracted
by a spouse of a prior void marriage before the latter is
judicially declared void. The latter is a special rule that
somehow recognizes the philosophy and an old doctrine
that void marriages are inexistent from the very beginning
and no judicial decree is necessary to establish their nullity.
In now requiring for purposes of remarriage, the declaration
of nullity by final judgment of the previously contracted void
marriage, the present law aims to do away with any
continuing uncertainty on the status of the second marriage.
It is not then illogical for the provisions of Article 43, in
relation to Articles 41 15 and 42, 16 of the Family Code, on
the effects of the termination of a subsequent marriage
contracted during the subsistence of a previous marriage to
be made applicable pro hac vice. In all other cases, it is not
to be assumed that the law has also meant to have
coincident property relations, on the one hand, between
spouses in valid and voidable marriages (before annulment)
and, on the other, between common-law spouses or
spouses of void marriages, leaving to ordain, on the latter
case, the ordinary rules on co-ownership subject to the
provisions of the Family Code on the "family home," i.e., the
provisions found in Title V, Chapter 2, of the Family Code,
remain in force and effect regardless of the property regime
of the spouses.
WHEREFORE, the questioned orders, dated 05 May 1995
and 30 October 1995, of the trial court are AFFIRMED. No
costs.
G.R. No. 132529. February 2, 2001
SUSAN NICDAO CARIÑO, petitioner,
vs.
SUSAN YEE CARIÑO, respondent.
DECISION
YNARES-SANTIAGO, J.:
The issue for resolution in the case at bar hinges on the
validity of the two marriages contracted by the deceased
SPO4 Santiago S. Cariño, whose “death benefits” is now
the subject of the controversy between the two Susans
whom he married. 1âwphi1.nêt
Before this Court is a petition for review on certiorari
seeking to set aside the decision 1 of the Court of Appeals in
CA-G.R. CV No. 51263, which affirmed in toto the
decision 2 of the Regional Trial Court of Quezon City,
Branch 87, in Civil Case No. Q-93-18632.
During the lifetime of the late SPO4 Santiago S. Cariño, he
contracted two marriages, the first was on June 20, 1969,
with petitioner Susan Nicdao Cariño (hereafter referred to
as Susan Nicdao), with whom he had two offsprings,
namely, Sahlee and Sandee Cariño; and the second was on
November 10, 1992, with respondent Susan Yee
Cariño (hereafter referred to as Susan Yee), with
whom he had no children in their almost ten year
cohabitation starting way back in 1982.
In 1988, SPO4 Santiago S. Cariño became ill and
bedridden due to diabetes complicated by
pulmonary tuberculosis. He passed away on
November 23, 1992, under the care of Susan Yee,
who spent for his medical and burial expenses.
Both petitioner and respondent filed claims for
monetary benefits and financial assistance
pertaining to the deceased from various
government agencies. Petitioner Susan Nicdao
was able to collect a total of P146,000.00 from
“MBAI, PCCUI, Commutation, NAPOLCOM, [and]
Pag-ibig,” 3 while respondent Susan Yee received
a total of P21,000.00 from “GSIS Life, Burial (GSIS)
and burial (SSS).” 4
On December 14, 1993, respondent Susan Yee
filed the instant case for collection of sum of
money against petitioner Susan Nicdao praying,
inter alia, that petitioner be ordered to return to her
at least one-half of the one hundred forty-six
thousand pesos (P146,000.00) collectively
denominated as “death benefits” which she
(petitioner) received from “MBAI, PCCUI,
Commutation, NAPOLCOM, [and] Pag-ibig.”
Despite service of summons, petitioner failed to file
her answer, prompting the trial court to declare her
in default.
Respondent Susan Yee admitted that her
marriage to the deceased took place during the
subsistence of, and without first obtaining a judicial
declaration of nullity of, the marriage between
petitioner and the deceased. She, however,
claimed that she had no knowledge of the previous
marriage and that she became aware of it only at
the funeral of the deceased, where she met
petitioner who introduced herself as the wife of the
deceased. To bolster her action for collection of
sum of money, respondent contended that the
marriage of petitioner and the deceased is void ab
initio because the same was solemnized without
the required marriage license. In support thereof,
respondent presented: 1) the marriage certificate of the
deceased and the petitioner which bears no marriage
license number; 5 and 2) a certification dated March 9, 1994,
from the Local Civil Registrar of San Juan, Metro Manila,
which reads –
This is to certify that this Office has no record of marriage
license of the spouses SANTIAGO CARINO (sic) and
SUSAN NICDAO, who are married in this municipality on
June 20, 1969. Hence, we cannot issue as requested a true
copy or transcription of Marriage License number from the
records of this archives.
This certification is issued upon the request of Mrs. Susan
Yee Cariño for whatever legal purpose it may serve. 6
On August 28, 1995, the trial court ruled in favor of
respondent, Susan Yee, holding as follows:
WHEREFORE, the defendant is hereby ordered to pay the
plaintiff the sum of P73,000.00, half of the amount which
was paid to her in the form of death benefits arising from the
death of SPO4 Santiago S. Cariño, plus attorney’s fees in
the amount of P5,000.00, and costs of suit.
IT IS SO ORDERED. 7
On appeal by petitioner to the Court of Appeals, the latter
affirmed in toto the decision of the trial court. Hence, the
instant petition, contending that:
I.
THE HONORABLE COURT OF APPEALS GRAVELY
ERRED IN AFFIRMING THE FINDINGS OF THE LOWER
COURT THAT VDA. DE CONSUEGRA VS. GSIS IS
APPLICABLE TO THE CASE AT BAR.
II.
THE HONORABLE COURT OF APPEALS GRAVELY
ERRED IN APPLYING EQUITY IN THE INSTANT CASE
INSTEAD OF THE CLEAR AND UNEQUIVOCAL
MANDATE OF THE FAMILY CODE.
III.
THE HONORABLE COURT OF APPEALS GRAVELY
ERRED IN NOT FINDING THE CASE OF VDA. DE
CONSUEGRA VS GSIS TO HAVE BEEN MODIFIED,
AMENDED AND EVEN ABANDONED BY THE
ENACTMENT OF THE FAMILY CODE. 8
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. Meaning, where the absolute
nullity of a previous marriage is sought to be invoked for
purposes of contracting a second marriage, the sole basis
acceptable in law, for said projected marriage to be free
from legal infirmity, is a final judgment declaring the
previous marriage void. 9 However, for purposes other than
remarriage, no judicial action is necessary to declare a
marriage an absolute nullity. For other purposes, such as
but not limited to the determination of heirship, legitimacy or
illegitimacy of a child, settlement of estate, dissolution of
property regime, or a criminal case for that matter, the court
may pass upon the validity of marriage even after the death
of the parties thereto, and even in a suit not directly
instituted to question the validity of said marriage, so long
as it is essential to the determination of the case. 10 In such
instances, evidence 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. 11
It is clear therefore that the Court is clothed with sufficient
authority to pass upon the validity of the two marriages in
this case, as the same is essential to the determination of
who is rightfully entitled to the subject “death benefits” of the
deceased.
Under the Civil Code, which was the law in force when the
marriage of petitioner Susan Nicdao and the deceased was
solemnized in 1969, a valid marriage license is a requisite
of marriage, 12 and the absence thereof, subject to certain
exceptions, 13 renders the marriage void ab initio. 14
In the case at bar, there is no question that the marriage of
petitioner and the deceased does not fall within the
marriages exempt from the license requirement. A
marriage license, therefore, was indispensable to
the validity of their marriage. This notwithstanding,
the records reveal that the marriage contract of
petitioner and the deceased bears no marriage
license number and, as certified by the Local Civil
Registrar of San Juan, Metro Manila, their office
has no record of such marriage license.
In Republic v. Court of Appeals, 15 the Court held
that such a certification is adequate to prove the
non-issuance of a marriage license. Absent any
circumstance of suspicion, as in the present case,
the certification issued by the local civil registrar
enjoys probative value, he being the officer
charged under the law to keep a record of all data
relative to the issuance of a marriage license.
Such being the case, the presumed validity of the
marriage of petitioner and the deceased has been
sufficiently overcome. It then became the burden
of petitioner to prove that their marriage is valid
and that they secured the required marriage
license. Although she was declared in default
before the trial court, petitioner could have
squarely met the issue and explained the absence
of a marriage license in her pleadings before the
Court of Appeals and this Court. But petitioner
conveniently avoided the issue and chose to
refrain from pursuing an argument that will put her
case in jeopardy. Hence, the presumed validity of
their marriage cannot stand.
It is beyond cavil, therefore, that the marriage
between petitioner Susan Nicdao and the
deceased, having been solemnized without the
necessary marriage license, and not being one of
the marriages exempt from the marriage license
requirement, is undoubtedly void ab initio.
It does not follow from the foregoing disquisition,
however, that since the marriage of petitioner and
the deceased is declared void ab initio, the “death
benefits” under scrutiny would now be awarded to
respondent Susan Yee. To reiterate, under Article
40 of the Family Code, for purposes of remarriage,
there must first be a prior judicial declaration of the
nullity of a previous marriage, though void, before
a party can enter into a second marriage, otherwise, the
second marriage would also be void.
Accordingly, the declaration in the instant case of nullity of
the previous marriage of the deceased and petitioner Susan
Nicdao does not validate the second marriage of the
deceased with respondent Susan Yee. The fact remains
that their marriage was solemnized without first obtaining a
judicial decree declaring the marriage of petitioner Susan
Nicdao and the deceased void. Hence, the marriage of
respondent Susan Yee and the deceased is, likewise, void
ab initio.
One of the effects of the declaration of nullity of marriage is
the separation of the property of the spouses according to
the applicable property regime. 16 Considering that the two
marriages are void ab initio, the applicable property regime
would not be absolute community or conjugal partnership of
property, but rather, be governed by the provisions of
Articles 147 and 148 of the Family Code on “Property
Regime of Unions Without Marriage.”
Under Article 148 of the Family Code, which refers to the
property regime of bigamous marriages, adulterous
relationships, relationships in a state of concubine,
relationships where both man and woman are married to
other persons, multiple alliances of the same married
man, 17 -
“... [O]nly the properties acquired by both of the parties
through their actual joint contribution of money, property, or
industry shall be owned by them in common in proportion to
their respective contributions ...”
In this property regime, the properties acquired by the
parties through their actual joint contribution shall belong
to the co-ownership. Wages and salaries earned by each
party belong to him or her exclusively. Then too,
contributions in the form of care of the home, children and
household, or spiritual or moral inspiration, are excluded in
this regime. 18
Considering that the marriage of respondent Susan Yee
and the deceased is a bigamous marriage, having been
solemnized during the subsistence of a previous marriage
then presumed to be valid (between petitioner and the
deceased), the application of Article 148 is therefore in
order.
The disputed P146,000.00 from MBAI [AFP Mutual Benefit
Association, Inc.], NAPOLCOM, Commutation, Pag-ibig,
and PCCUI, are clearly renumerations, incentives and
benefits from governmental agencies earned by the
deceased as a police officer. Unless respondent Susan Yee
presents proof to the contrary, it could not be said that she
contributed money, property or industry in the acquisition of
these monetary benefits. Hence, they are not owned in
common by respondent and the deceased, but belong to
the deceased alone and respondent has no right
whatsoever to claim the same. By intestate succession, the
said “death benefits” of the deceased shall pass to his legal
heirs. And, respondent, not being the legal wife of the
deceased is not one of them.
As to the property regime of petitioner Susan Nicdao and
the deceased, Article 147 of the Family Code governs. This
article applies to unions of parties who are legally
capacitated and not barred by any impediment to contract
marriage, but whose marriage is nonetheless void for other
reasons, like the absence of a marriage license. Article 147
of the Family Code reads -
Art. 147. When a man and a woman who are capacitated to
marry each other, live exclusively with each other as
husband and wife without the benefit of marriage or under a
void marriage, their wages and salaries shall be owned by
them in equal shares and the property acquired by both of
them through their work or industry shall be governed by the
rules on co-ownership.
In the absence of proof to the contrary, properties acquired
while they lived together shall be presumed to have been
obtained by their joint efforts, work or industry, and shall be
owned by them in equal shares. For purposes of this Article,
a party who did not participate in the acquisition by the other
party of any property shall be deemed to have contributed
jointly in the acquisition thereof if the former’s efforts
consisted in the care and maintenance of the family and of
the household.
xxx
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.
In contrast to Article 148, under the foregoing
article, wages and salaries earned by either party
during the cohabitation shall be owned by the
parties in equal shares and will be divided equally
between them, even if only one party earned the
wages and the other did not contribute
thereto. 19 Conformably, even if the disputed
“death benefits” were earned by the deceased
alone as a government employee, Article 147
creates a co-ownership in respect thereto, entitling
the petitioner to share one-half thereof. As there is
no allegation of bad faith in the present case, both
parties of the first marriage are presumed to be in
good faith. Thus, one-half of the subject “death
benefits” under scrutiny shall go to the petitioner
as her share in the property regime, and the other
half pertaining to the deceased shall pass by,
intestate succession, to his legal heirs, namely, his
children with Susan Nicdao.
In affirming the decision of the trial court, the Court
of Appeals relied on the case of Vda. de
Consuegra v. Government Service Insurance
System, 20 where the Court awarded one-half of
the retirement benefits of the deceased to the first
wife and the other half, to the second wife, holding
that:
“... [S]ince the defendant’s first marriage has not
been dissolved or declared void the conjugal
partnership established by that marriage has not
ceased. Nor has the first wife lost or relinquished
her status as putative heir of her husband under
the new Civil Code, entitled to share in his estate
upon his death should she survive him.
Consequently, whether as conjugal partner in a still
subsisting marriage or as such putative heir she has an
interest in the husband’s share in the property here in
dispute....” And with respect to the right of the second wife,
this 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 such nullity. And inasmuch as the
conjugal partnership formed by the second marriage was
dissolved before judicial declaration of its nullity, “[t]he only
just and equitable solution in this case would be to
recognize the right of the second wife to her share of
one-half in the property acquired by her and her husband,
and consider the other half as pertaining to the conjugal
partnership of the first marriage.” 21
It should be stressed, however, that the aforecited decision
is premised on the rule which requires a prior and separate
judicial declaration of nullity of marriage. This is the reason
why in the said case, the Court determined the rights of the
parties in accordance with their existing property regime.
In Domingo v. Court of Appeals, 22 however, the Court,
construing Article 40 of the Family Code, clarified that a
prior and separate declaration of nullity of a marriage is an
all important condition precedent only for purposes of
remarriage. That is, if a party who is previously married
wishes to contract a second marriage, he or she has to
obtain first a judicial decree declaring the first marriage void,
before he or she could contract said second marriage,
otherwise the second marriage would be void. The same
rule applies even if the first marriage is patently void
because the parties are not free to determine for
themselves the validity or invalidity or their marriage.
However, for purposes other than to remarry, like for filing a
case for collection of sum of money anchored on a marriage
claimed to be valid, no prior and separate judicial
declaration of nullity is necessary. All that a party has to do
is to present evidence, testimonial or documentary, that
would prove that the marriage from which his or her rights
flow is in fact valid. Thereupon, the court, if material to the
determination of the issues before it, will rule on the status
of the marriage involved and proceed to determine the
rights of the parties in accordance with the applicable laws
and jurisprudence. Thus, in Niñal v. Bayadog, 23 the Court
explained:
[T]he court may pass upon the validity of marriage even in a
suit not directly instituted to question the same so long as it
is essential to the determination of the case. This is without
prejudice to any issue that may arise in the case. When
such need arises, a final judgment of declaration of nullity is
necessary even if the purpose is other than to remarry. The
clause “on the basis of a final judgment declaring such
previous marriage void” in Article 40 of the Family Code
connoted that such final judgment need not be obtained
only for purpose of remarriage.
WHEREFORE, the petition is GRANTED, and the decision
of the Court of Appeals in CA-G.R. CV No. 51263 which
affirmed the decision of the Regional Trial Court of Quezon
City ordering petitioner to pay respondent the sum of
P73,000.00 plus attorney’s fees in the amount of P5,000.00,
is REVERSED and SET ASIDE. The complaint in Civil Case
No. Q-93-18632, is hereby DISMISSED. No
pronouncement as to costs.1âwphi1.nêt
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) 1 in
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
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 marriage
is deemed never to have taken place at all.8 Thus, he
concludes that there is no first marriage to speak of.
Petitioner also quotes the commentaries9 of former Justice
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."10 In People v. Mendoza,11 a
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,13 Jose Consuegra married for the second time while
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,14 however, the Court again held that
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,15 the Court stressed the need for
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,16 the Court reverted to the
ruling in People v. Mendoza, holding that there was no need
for such declaration of nullity.
In Domingo v. CA,17 the issue raised was whether a judicial
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,21 which involved an administrative
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
declaration of the nullity of a marriage before contracting 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."
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.24 In any
event, we find no reason to 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. If
there are indeed damages caused to her
reputation, they are of her own willful making."25
WHEREFORE, the Petition is DENIED and the
assailed Decision AFFIRMED. Costs against
petitioner.
SO ORDERED.
VITUG, J.:
At the pith of the controversy is the defense of the absolute
nullity of a previous marriage in an indictment for bigamy.
The majority opinion, penned by my esteemed brother, Mr.
Justice Artemio V. Panganiban, enunciates that it is only a
judicially decreed prior void marriage which can constitute a
defense against the criminal charge.
The civil law rule stated in Article 40 of the Family Code is
a given but I have strong reservations on its application
beyond what appears to be its expressed context. The
subject of the instant petition is a criminal prosecution, not a
civil case, and the ponencia affirms the conviction of
petitioner Vincent Paul G. Mercado for bigamy.
Article 40 of the Family code reads:
"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."
The phrase "for purposes of remarriage" is not at all
insignificant. Void marriages, like void contracts, are
inexistent from the very beginning. It is only by way of
exception that the Family code requires a judicial
declaration of nullity of the previous marriage before a
subsequent marriage is contracted; without such
declaration, the validity and the full legal consequence of
the subsequent marriage would itself be in similar jeopardy
under Article 53, in relation to Article 52, of the Family Code.
Parenthetically, I would daresay that the necessity of a
judicial declaration of nullity of a void marriage for the
purpose of remarriage should be held to refer merely to
cases where it can be said that a marriage, at least
ostensibly, had taken place. No such judicial declaration of
nullity, in my view, should still be deemed essential when
the "marriage," for instance, is between persons of the
same sex or when either or both parties had not at all given
consent to the "marriage." Indeed, it is likely that Article 40
of the Family Code has been meant and intended to refer
only to marriages declared void under the provisions of
Articles 35, 36, 37, 38 and 53 thereof.
In fine, the Family Code, I respectfully submit, did not have
the effect of overturning the rule in criminal law and related
jurisprudence. The Revised Penal Code expresses:
"Art. 349. Bigamy.---The penalty of prision mayor shall be
imposed upon any person who shall contract a second or
subsequent marriage before the former marriage has
been legally dissolved, or before the absent spouse has
been declared presumptively dead by means of a judgment
rendered in the proper proceedings.
Surely, the foregoing provision contemplated an existing,
not void, prior marriage. Covered by article 349 would thus
be, for instance, a voidable marriage, it obviously being
valid and subsisting until set aside by a competent court. As
early as People vs. Aragon,1 this Court has underscored:
"xxx Our Revised Penal Code is of recent enactment
and had the rule enunciated in Spain and in America
requiring judicial declaration of nullity of ab initio void
marriages been within the contemplation of the
legislature, an express provision to that effect would or
should have been inserted in the law. In its absence, we
are bound by said rule of strict interpretation."
Unlike a voidable marriage which legally exists until
judicially annulled (and therefore not a defense in bigamy if
the second marriage were contracted prior to the decree
of annulment), the complete nullity, however, of a
previously contracted marriage, being a total nullity
and inexistent, should be capable of being independently
raised by way of a defense in a criminal case for bigamy. I
see no incongruence between this rule in criminal law and
that of the Family Code, and each may be applied within the
respective spheres of governance.
Accordingly, I vote to grant the petition.
G.R. No. 159218 March 30, 2004
SALVADOR S. ABUNADO and ZENAIDA BIÑAS
ABUNADO, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Responden
DECISION
YNARES-SANTIAGO, J.: Zenaida Biñas was acquitted for insufficiency of evidence.6
This petition for review on certiorari seeks to On appeal, the Court of Appeals affirmed with modification
reverse and set aside the decision1 of the Court of the decision of the trial court, as follows:
Appeals in CA-G.R. No. 26135 which affirmed with
modification the decision of the Regional Trial WHEREFORE, the Decision appealed from is hereby
Court, Branch 77, San Mateo, Rizal in Criminal MODIFIED as to the penalty imposed but AFFIRMED in all
Case No. 2803 convicting petitioner Salvador S. other respects. Appreciating the mitigating circumstance
Abunado of bigamy. that accused is 76 years of age and applying the provisions
of the Indeterminate Sentence Law, the appellant is hereby
The records show that on September 18, 1967, sentenced to suffer an indeterminate prison term of two (2)
Salvador married Narcisa Arceño at the Manila years, four (4) months and one (1) day of prision
City Hall before Rev. Pedro Tiangco.2 In 1988 correccional as Minimum to six (6) years and one (1) day of
Narcisa left for Japan to work but returned to the prision mayor as Maximum. No costs.
Philippines in 1992, when she learned that her
husband was having an extra-marital affair and SO ORDERED.7
has left their conjugal home.
Petitioner is now before us on petition for review.
After earnest efforts, Narcisa found Salvador in
Quezon City cohabiting with Fe Corazon Plato.
First, he argues that the Information was defective as it
She also discovered that on January 10, 1989,
stated that the bigamous marriage was contracted in 1995
Salvador contracted a second marriage with a
when in fact it should have been 1989.
certain Zenaida Biñas before Judge Lilian Dinulos
Panontongan in San Mateo, Rizal.3
Indeed, an accused has the right to be informed of the
nature and cause of the accusation against him. 8 It is
On January 19, 1995, an annulment case was filed
required that the acts and omissions complained of as
by Salvador against Narcisa.4 On May 18, 1995, a
constituting the offense must be alleged in the Information.9
case for bigamy was filed by Narcisa against
Salvador and Zenaida.5
The real nature of the crime charged is determined by the
facts alleged in the Information and not by the title or
Salvador admitted that he first married Zenaida on
designation of the offense contained in the caption of the
December 24, 1955 before a municipal trial court
Information. It is fundamental that every element of which
judge in Concepcion, Iloilo and has four children
the offense is comprised must be alleged in the Information.
with her prior to their separation in 1966. It
What facts and circumstances are necessary to be alleged
appeared however that there was no evidence of
in the Information must be determined by reference to the
their 1955 marriage so he and Zenaida remarried
definition and essential elements of the specific crimes.10
on January 10, 1989, upon the request of their son
for the purpose of complying with the requirements
for his commission in the military. The question, therefore, is whether petitioner has been
sufficiently informed of the nature and cause of the
accusation against him, namely, that he contracted a
On May 18, 2001, the trial court convicted
subsequent marriage with another woman while his first
petitioner Salvador Abunado of bigamy and
marriage was subsisting.
sentenced him to suffer imprisonment of six (6)
years and one (1) day, as minimum, to eight (8)
years and one (1) day, as maximum. Petitioner The information against petitioner alleges:
That in or about and sometime in the month of January,
1995 at the Municipality of San Mateo, Rizal place (sic)
within the jurisdiction of this Honorable Court, the
above-named accused, having been legally married to
complainant Narcisa Abunado on September 16, 1967
which has not been legally dissolved, did then and
there willfully, unlawfully and feloniously contract a
subsequent marriage to Zenaida Biñas Abunado on
January 10, 1989 which has all the essential requisites of a
valid marriage.
CONTRARY TO LAW.11
The statement in the information that the crime was
committed "in or about and sometime in the month of
January, 1995," was an obvious typographical error, for the
same information clearly states that petitioner contracted a
subsequent marriage to Zenaida Biñas Abunado on
January 10, 1989. Petitioner’s submission, therefore, that
the information was defective is untenable.
The general rule is that a defective information cannot
support a judgment of conviction unless the defect was
cured by evidence during the trial and no objection appears
to have been raised.12 It should be remembered that
bigamy can be successfully prosecuted provided all its
elements concur – two of which are a previous marriage
and a subsequent marriage which possesses all the
requisites for validity.13 All of these have been sufficiently
established by the prosecution during the trial. Notably,
petitioner failed to object to the alleged defect in the
Information during the trial and only raised the same for the
first time on appeal before the Court of Appeals.
Second, petitioner argues that Narcisa consented to his
marriage to Zenaida, which had the effect of absolving him
of criminal liability.
In this regard, we agree with the Court of Appeals when it
ruled, thus:
x x x, while he claims that there was condonation on the
part of complainant when he entered into a bigamous
marriage, the same was likewise not established by clear
and convincing evidence. But then, a pardon by the
offended party does not extinguish criminal action
considering that a crime is committed against the
State and the crime of Bigamy is a public offense
which can be denounced not only by the person
affected thereby but even by a civic-spirited citizen
who may come to know the same.14
Third, petitioner claims that his petition for
annulment/declaration of nullity of marriage was a
prejudicial question, hence, the proceedings in the
bigamy case should have been suspended during
the pendency of the annulment case. Petitioner, in
fact, eventually obtained a judicial declaration of
nullity of his marriage to Narcisa on October 29,
1999.15
A prejudicial question has been defined as one
based on a fact distinct and separate from the
crime but so intimately connected with it that it
determines the guilt or innocence of the accused,
and for it to suspend the criminal action, it must
appear not only that said case involves facts
intimately related to those upon which the criminal
prosecution would be based but also that in the
resolution of the issue or issues raised in the civil
case, the guilt or innocence of the accused would
necessarily be determined. The rationale behind
the principle of suspending a criminal case in view
of a prejudicial question is to avoid two conflicting
decisions.16
The subsequent judicial declaration of the nullity of
the first marriage was immaterial because prior to
the declaration of nullity, the crime had already
been consummated. Moreover, petitioner’s
assertion would only delay the prosecution of
bigamy cases considering that 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.17
The outcome of the civil case for annulment of
petitioner’s marriage to Narcisa had no bearing
upon the determination of petitioner’s innocence or
guilt in the criminal case for bigamy, because all
that is required for the charge of bigamy to prosper
is that the first marriage be subsisting at the time the second
marriage is contracted.18
Thus, under the law, a marriage, even one which is void or
voidable, shall be deemed valid until declared otherwise in a
judicial proceeding.19 In this case, even if petitioner
eventually obtained a declaration that his first marriage was
void ab initio, the point is, both the first and the second
marriage were subsisting before the first marriage was
annulled.
Finally, petitioner claims that the penalty imposed on him
was improper.
Article 349 of the Revised Penal Code imposes the penalty
of prision mayor for bigamy. Under the Indeterminate
Sentence Law, the court shall sentence the accused to an
indeterminate penalty, the maximum term of which shall be
that which, in view of the attending circumstances, could be
properly imposed under the Revised Penal Code, and the
minimum term of which shall be within the range of the
penalty next lower to that prescribed by the Code for the
offense. The penalty next lower would be based on the
penalty prescribed by the Code for the offense, without first
considering any modifying circumstance attendant to the
commission of the crime. The determination of the minimum
penalty is left by law to the sound discretion of the court and
it can be anywhere within the range of the penalty next
lower without any reference to the periods into which it
might be subdivided. The modifying circumstances are
considered only in the imposition of the maximum term of
the indeterminate sentence.20
In light of the fact that petitioner is more than 70 years of
age,21 which is a mitigating circumstance under Article 13,
paragraph 2 of the Revised Penal Code, the maximum term
of the indeterminate sentence should be taken from prision
mayor in its minimum period which ranges from six (6)
years and one (1) day to eight (8) years, while the minimum
term should be taken from prision correccional in any of its
periods which ranges from six (6) months and one (1) day to
six (6) years.
Therefore, the penalty imposed by the Court of Appeals, i.e.,
two (2) years, four (4) months and one (1) day of prision
correccional, as minimum, to six (6) years and one (1) day
of prision mayor, as maximum, is proper.
WHEREFORE, in view of the foregoing, the decision of the
Court of Appeals in CA-G.R. CR No. 26135, finding
petitioner Salvador S. Abunado guilty beyond reasonable
doubt of the crime of bigamy, and sentencing him to suffer
an indeterminate penalty of two (2) years, four (4) months
and one (1) day of prision correccional, as minimum, to six
(6) years and one (1) day of prision mayor, as maximum, is
AFFIRMED.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J. (Chairman), Panganiban, Ynares-Santiago,
Carpio, and Azcuna, JJ.
Concurring Opinion
CARPIO, J.:
I concur in the result of the ponencia of Justice Consuelo
Ynares-Santiago finding appellant Salvador S. Abunado
guilty of bigamy.
The material facts are not in dispute. On 18 September
1967, Abunado married Narcisa Arceno. While his marriage
with Arceno remained unannulled, Abunado married
Zenaida Biñas on 10 January 1989. Subsequently, on 29
October 1999, Abunado obtained from the Regional Trial
Court of Makati City a judicial declaration of nullity of his
marriage with Arceno. On 18 May 2001, the Regional Trial
Court of San Mateo, Rizal rendered a decision convicting
Abunado of bigamy.
The sole issue is whether the second marriage of Abunado
to Biñas on 10 January 1989 constitutes the crime of
bigamy under Article 3491 of the Revised Penal Code. More
precisely, the issue turns on whether Abunado’s first
marriage to Arceno was still subsisting at the time Abunado
married Biñas.
Under the Family Code, before one can contract a
second marriage on the ground of nullity of the first
marriage, one must first secure a final judgment
declaring the first marriage void. 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.
The Family Code took effect on 3 August 1988,
before the second marriage of Abunado on 10
January 1989.
Prior to the Family Code, one could contract a
subsequent marriage on the ground of nullity of the
previous marriage without first securing a judicial
annulment of the previous marriage. If
subsequently the previous marriage were judicially
declared void, the subsequent marriage would not
be deemed bigamous. The nullity of the previous
marriage could even be judicially declared in the
criminal case for bigamy,2 although the person
remarrying "assume(d) the risk of being
prosecuted for bigamy"3 should the court uphold
the validity of the first marriage. Article 40 of the
Family Code has changed this.
Now, one must first secure a final judicial
declaration of nullity of the previous marriage
before he is freed from the marital bond or
vinculum of the previous marriage. If he fails to
secure a judicial declaration of nullity and contracts
a second marriage, then the second marriage
becomes bigamous. As the Court stated in
Domingo v. Court of Appeals4 in explaining Article
40 of the Family Code:
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.
Conversely, if the person remarries without securing a
judicial declaration of nullity of his previous marriage, he is
liable for bigamy.
Article 40 of the Family Code considers the marital vinculum
of the previous marriage to subsist for purposes of
remarriage, unless the previous marriage is judicially
declared void by final judgment. Thus, if the marital
vinculum of the previous marriage subsists because of the
absence of judicial declaration of its nullity, the second
marriage is contracted during the existence of the first
marriage resulting in the crime of bigamy.
Under Article 40 of the Family Code, the marital vinculum of
a previous marriage that is void ab initio subsists only for
purposes of remarriage. For purposes other than
remarriage, marriages that are void ab initio, such as those
falling under Articles 35 and 36 of the Family Code, are void
even without a judicial declaration of nullity. As the Court
held in Cariño v. Cariño:5
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. Meaning, where the absolute
nullity of a previous marriage is sought to be invoked for
purposes of contracting a second marriage, the sole basis
acceptable in law, for said projected marriage to be free
from legal infirmity, is a final judgment declaring the
previous marriage void. However, for purposes other than
remarriage, no judicial action is necessary to declare a
marriage an absolute nullity. x x x . (Emphasis supplied)
Cariño, penned by Justice Consuelo Ynares-Santiago
herself, contradicts the statement in her present ponencia
that "under the law, a marriage, even one which is void or
voidable, shall be deemed valid until declared otherwise in a
judicial proceeding." I believe the ruling in Cariño is correct
and should not be disturbed. As Justice Jose C. Vitug
explained in his recent textbook on Civil Law (Volume I):
The phrase "for purposes of remarriage" is not at all
insignificant. Void marriages, like void contracts, are
inexistent from the very beginning. It is only by way
of exception that the Family Code requires a judicial
declaration of nullity of the previous marriage before a
subsequent marriage is contracted; x x x.6 (Emphasis
supplied)
Thus, the general rule is if the marriage is void ab initio, it is
ipso facto void without need of any judicial declaration of
nullity. The only recognized exception7 under existing law is
Article 40 of the Family Code where a marriage void ab
initio is deemed valid for purposes of remarriage, hence
necessitating a judicial declaration of nullity before one can
contract a subsequent marriage.
Article 40 of the Family Code applies only to a situation
where the previous marriage suffers from nullity while the
second marriage does not. Under Article 40, what requires
a judicial declaration of nullity is the previous marriage, not
the subsequent marriage. Article 40 does not apply to a
situation where the first marriage does not suffer from any
defect while the second is void.
Accordingly, I vote to deny the petition and affirm the
decision of the Court of Appeals finding appellant Salvador
S. Abunado guilty of the crime of bigamy.
Art. 41. A marriage contracted by any person during
subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent marriage,
the prior spouse had been absent for four consecutive years
and the spouse present has a well-founded belief that the
absent spouse was already dead. In case of disappearance
where there is danger of death under the circumstances set
forth in the provisions of Article 391 of the Civil Code, an
absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage
under the preceding paragraph the spouse present must
institute a summary proceeding as provided in this Code for
the declaration of presumptive death of the absentee,
without prejudice to the effect of reappearance of the absent
spouse. (83a)
Art. 42. The subsequent marriage referred to in the
preceding Article shall be automatically terminated by the
recording of the affidavit of reappearance of the absent
spouse, unless there is a judgment annulling the previous
marriage or declaring it void ab initio.
A sworn statement of the fact and circumstances of
reappearance shall be recorded in the civil registry of the
residence of the parties to the subsequent
marriage at the instance of any interested person,
with due notice to the spouses of the subsequent
marriage and without prejudice to the fact of
reappearance being judicially determined in case
such fact is disputed. (n)
G.R. No. 94053 March 17, 1993
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
GREGORIO NOLASCO, respondent.
The Solicitor General for plaintiff-appellee.
Warloo G. Cardenal for respondent.
RESOLUTION
FELICIANO, J.:
On 5 August 1988, respondent Gregorio Nolasco
filed before the Regional Trial Court of Antique,
Branch 10, a petition for the declaration of
presumptive death of his wife Janet Monica Parker,
invoking Article 41 of the Family Code. The petition
prayed that respondent's wife be declared
presumptively dead or, in the alternative, that the
marriage be declared null and void.1
The Republic of the Philippines opposed the
petition through the Provincial Prosecutor of
Antique who had been deputized to assist the
Solicitor-General in the instant case. The Republic
argued, first, that Nolasco did not possess a
"well-founded belief that the absent spouse was
already dead,"2 and second, Nolasco's attempt to
have his marriage annulled in the same
proceeding was a "cunning attempt" to circumvent
the law on marriage.3
During trial, respondent Nolasco testified that he was a
seaman and that he had first met Janet Monica Parker, a
British subject, in a bar in England during one of his ship's
port calls. From that chance meeting onwards, Janet
Monica Parker lived with respondent Nolasco on his ship for
six (6) months until they returned to respondent's hometown
of San Jose, Antique on 19 November 1980 after his
seaman's contract expired. On 15 January 1982,
respondent married Janet Monica Parker in San Jose,
Antique, in Catholic rites officiated by Fr. Henry van Tilborg
in the Cathedral of San Jose.
Respondent Nolasco further testified that after the marriage
celebration, he obtained another employment contract as a
seaman and left his wife with his parents in San Jose,
Antique. Sometime in January 1983, while working
overseas, respondent received a letter from his mother
informing him that Janet Monica had given birth to his son.
The same letter informed him that Janet Monica had left
Antique. Respondent claimed he then immediately asked
permission to leave his ship to return home. He arrived in
Antique in November 1983.
Respondent further testified that his efforts to look for her
himself whenever his ship docked in England proved
fruitless. He also stated that all the letters he had sent to his
missing spouse at No. 38 Ravena Road, Allerton, Liverpool,
England, the address of the bar where he and Janet Monica
first met, were all returned to him. He also claimed that he
inquired from among friends but they too had no news of
Janet Monica.
On cross-examination, respondent stated that he had lived
with and later married Janet Monica Parker despite his lack
of knowledge as to her family background. He insisted that
his wife continued to refuse to give him such information
even after they were married. He also testified that he did
not report the matter of Janet Monica's disappearance to
the Philippine government authorities.
Respondent Nolasco presented his mother, Alicia Nolasco,
as his witness. She testified that her daughter-in-law Janet
Monica had expressed a desire to return to England even
before she had given birth to Gerry Nolasco on 7 December
1982. When asked why her daughter-in-law might have
wished to leave Antique, respondent's mother replied that
Janet Monica never got used to the rural way of life in San
Jose, Antique. Alicia Nolasco also said that she had tried to
dissuade Janet Monica from leaving as she had given birth
to her son just fifteen days before, but when she (Alicia)
failed to do so, she gave Janet Monica P22,000.00 for her
expenses before she left on 22 December 1982 for England.
She further claimed that she had no information as to the
missing person's present whereabouts.
The trial court granted Nolasco's petition in a Judgment
dated 12 October 1988 the dispositive portion of which
reads:
Wherefore, under Article 41, paragraph 2 of the Family
Code of the Philippines (Executive Order No. 209, July 6,
1987, as amended by Executive Order No. 227, July 17,
1987) this Court hereby declares as presumptively dead
Janet Monica Parker Nolasco, without prejudice to her
reappearance.4
The Republic appealed to the Court of Appeals contending
that the trial court erred in declaring Janet Monica Parker
presumptively dead because respondent Nolasco had failed
to show that there existed a well founded belief for such
declaration.
The Court of Appeals affirmed the trial court's decision,
holding that respondent had sufficiently established a basis
to form a belief that his absent spouse had already died.
The Republic, through the Solicitor-General, is now before
this Court on a Petition for Review where the following
allegations are made:
1. The Court of Appeals erred in affirming the trial court's
finding that there existed a well-founded belief on the part of
Nolasco that Janet Monica Parker was already dead; and
2. The Court of Appeals erred in affirming the trial Court's
declaration that the petition was a proper case of the
declaration of presumptive death under Article 41, Family
Code.5
The issue before this Court, as formulated by petitioner is
"[w]hether or not Nolasco has a well-founded belief that his
wife is already dead."6
The present case was filed before the trial court
pursuant to Article 41 of the Family Code which
provides that:
Art. 41. A marriage contracted by any person
during the subsistence of a previous marriage shall
be null and void, unless before the celebration of
the subsequent marriage, the prior spouse had
been absent for four consecutive years and
the spouse present had a well-founded belief that
the absent spouse was already dead. In case of
disappearance where there is danger of death
under the circumstances set forth in the provision
of Article 391 of the Civil Code, an absence of only
two years shall be sufficient.
For the purpose of contracting the subsequent
marriage under the preceding paragraph, the
spouse present must institute a summary
proceeding as provided in this Code for the
declaration of presumptive death of the absentee,
without prejudice to the effect of reappearance of
the absent spouse. (Emphasis supplied).
When Article 41 is compared with the old provision
of the Civil Code, which it superseded,7 the
following crucial differences emerge. Under Article
41, the time required for the presumption to arise
has been shortened to four (4) years; however,
there is need for a judicial declaration of
presumptive death to enable the spouse present to
remarry.8 Also, Article 41 of the Family Code
imposes a stricter standard than the Civil Code:
Article 83 of the Civil Code merely requires either
that there be no news that such absentee is still
alive; or the absentee is generally considered to be
dead and believed to be so by the spouse present,
or is presumed dead under Article 390 and 391 of
the Civil Code.9 The Family Code, upon the other
hand, prescribes as "well founded belief" that the
absentee is already dead before a petition for
declaration of presumptive death can be granted.
As pointed out by the Solicitor-General, there are
four (4) requisites for the declaration of
presumptive death under Article 41 of the Family
Code:
1. That the absent spouse has been missing for four
consecutive years, or two consecutive years if the
disappearance occurred where there is danger of death
under the circumstances laid down in Article 391, Civil
Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief that
the absentee is dead; and
4. That the present spouse files a summary proceeding for
the declaration of presumptive death of the absentee. 10
Respondent naturally asserts that he had complied with all
these requirements.11
Petitioner's argument, upon the other hand, boils down to
this: that respondent failed to prove that he had complied
with the third requirement, i.e., the existence of a
"well-founded belief" that the absent spouse is already
dead.
The Court believes that respondent Nolasco failed to
conduct a search for his missing wife with such diligence as
to give rise to a "well-founded belief" that she is dead.
United States v. Biasbas, 12 is instructive as to degree of
diligence required in searching for a missing spouse. In that
case, defendant Macario Biasbas was charged with the
crime of bigamy. He set-up the defense of a good faith
belief that his first wife had already died. The Court held that
defendant had not exercised due diligence to ascertain the
whereabouts of his first wife, noting that:
While the defendant testified that he had made inquiries
concerning the whereabouts of his wife, he fails to state of
whom he made such inquiries. He did not even write to the
parents of his first wife, who lived in the Province of
Pampanga, for the purpose of securing information
concerning her whereabouts. He admits that he had a
suspicion only that his first wife was dead. He admits that
the only basis of his suspicion was the fact that she had
been absent. . . . 13
In the case at bar, the Court considers that the investigation
allegedly conducted by respondent in his attempt to
ascertain Janet Monica Parker's whereabouts is too sketchy
to form the basis of a reasonable or well-founded belief that
she was already dead. When he arrived in San Jose,
Antique after learning of Janet Monica's departure, instead
of seeking the help of local authorities or of the British
Embassy, 14 he secured another seaman's contract and
went to London, a vast city of many millions of inhabitants,
to look for her there.
Q After arriving here in San Jose, Antique, did you exert
efforts to inquire the whereabouts of your wife?
A Yes, Sir.
Court:
How did you do that?
A I secured another contract with the ship and we had a trip
to London and I went to London to look for her I could not
find her (sic). 15 (Emphasis supplied)
Respondent's testimony, however, showed that he
confused London for Liverpool and this casts doubt on his
supposed efforts to locate his wife in England. The Court of
Appeal's justification of the mistake, to wit:
. . . Well, while the cognoscente (sic) would readily know the
geographical difference between London and Liverpool, for
a humble seaman like Gregorio the two places could mean
one — place in England, the port where his ship docked and
where he found Janet. Our own provincial folks, every time
they leave home to visit relatives in Pasay City, Kalookan
City, or Parañaque, would announce to friends and relatives,
"We're going to Manila." This apparent error in naming of
places of destination does not appear to be fatal. 16
is not well taken. There is no analogy between Manila and
its neighboring cities, on one hand, and London and
Liverpool, on the other, which, as pointed out by the
Solicitor-General, are around three hundred fifty (350)
kilometers apart. We do not consider that walking into a
major city like Liverpool or London with a simple hope of
somehow bumping into one particular person there —
which is in effect what Nolasco says he did — can
be regarded as a reasonably diligent search.
The Court also views respondent's claim that
Janet Monica declined to give any information as
to her personal background even after she had
married respondent 17 too convenient an excuse
to justify his failure to locate her. The same can be
said of the loss of the alleged letters respondent
had sent to his wife which respondent claims were
all returned to him. Respondent said he had lost
these returned letters, under unspecified
circumstances.
Neither can this Court give much credence to
respondent's bare assertion that he had inquired
from their friends of her whereabouts, considering
that respondent did not identify those friends in his
testimony. The Court of Appeals ruled that since
the prosecutor failed to rebut this evidence during
trial, it is good evidence. But this kind of evidence
cannot, by its nature, be rebutted. In any case,
admissibility is not synonymous with
credibility. 18 As noted before, there are serious
doubts to respondent's credibility. Moreover, even
if admitted as evidence, said testimony merely
tended to show that the missing spouse had
chosen not to communicate with their common
acquaintances, and not that she was dead.
Respondent testified that immediately after
receiving his mother's letter sometime in January
1983, he cut short his employment contract to
return to San Jose, Antique. However, he did not
explain the delay of nine (9) months from January
1983, when he allegedly asked leave from his
captain, to November 1983 when be finally
reached San Jose. Respondent, moreover,
claimed he married Janet Monica Parker without
inquiring about her parents and their place of
residence. 19 Also, respondent failed to explain
why he did not even try to get the help of the police
or other authorities in London and Liverpool in his
effort to find his wife. The circumstances of Janet
Monica's departure and respondent's subsequent
behavior make it very difficult to regard the claimed
belief that Janet Monica was dead a well-founded one.
In Goitia v. Campos-Rueda, 20 the Court stressed that:
. . . Marriage is an institution, the maintenance of which in
its purity the public is deeply interested. It is a relationship
for life and the parties cannot terminate it at any shorter
period by virtue of any contract they
make. . . . . 21 (Emphasis supplied)
By the same token, the spouses should not be allowed, by
the simple expedient of agreeing that one of them leave the
conjugal abode and never to return again, to circumvent the
policy of the laws on marriage. The Court notes that
respondent even tried to have his marriage annulled before
the trial court in the same proceeding.
In In Re Szatraw, 22 the Court warned against such
collusion between the parties when they find it impossible to
dissolve the marital bonds through existing legal means.
While the Court understands the need of respondent's
young son, Gerry Nolasco, for maternal care, still the
requirements of the law must prevail. Since respondent
failed to satisfy the clear requirements of the law, his
petition for a judicial declaration of presumptive death must
be denied. The law does not view marriage like an ordinary
contract. Article 1 of the Family Code emphasizes that.
. . . Marriage is a special contract of permanent
union between a man and a woman entered into in
accordance with law for the establishment of conjugal and
family life. It is the foundation of the 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, 23 the Court stressed
strongly the need to protect.
. . . the basic social institutions of marriage and the family in
the preservation of which the State bas the strongest
interest; the public policy here involved is of the most
fundamental kind. In Article II, Section 12 of the Constitution
there is set forth the following basic state policy:
The State recognizes the sanctity of family life and shall
protect and strengthen the family as a basic autonomous
social institution. . . .
The same sentiment bas been expressed in the Family
Code of the Philippines in Article 149:
The family, being the foundation of the nation, is a basic
social institution which public policy cherishes and protects.
Consequently, family relations are governed by law and no
custom, practice or agreement destructive of the family
shall be recognized or given effect. 24
In fine, respondent failed to establish that he had the
well-founded belief required by law that his absent wife was
already dead that would sustain the issuance of a court
order declaring Janet Monica Parker presumptively dead.
WHEREFORE, the Decision of the Court of Appeals dated
23 February 1990, affirming the trial court's decision
declaring Janet Monica Parker presumptively dead is
hereby REVERSED and both Decisions are hereby
NULLIFIED and SET ASIDE. Costs against respondent.
Art. 45. A marriage may be annulled for any of the following
causes, existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the
marriage annulled was eighteen years of age or over but
below twenty-one, and the marriage was solemnized
without the consent of the parents, guardian or person
having substitute parental authority over the party, in that
order, unless after attaining the age of twenty-one, such
party freely cohabited with the other and both lived together
as husband and wife;
(2) That either party was of unsound mind, unless such
party after coming to reason, freely cohabited with the other
as husband and wife;
(3) That the consent of either party was obtained by fraud,
unless such party afterwards, with full knowledge of the
facts constituting the fraud, freely cohabited with the other
as husband and wife;
(4) That the consent of either party was obtained
by force, intimidation or undue influence, unless
the same having disappeared or ceased, such
party thereafter freely cohabited with the other as
husband and wife;
(5) That either party was physically incapable of
consummating the marriage with the other, and
such incapacity continues and appears to be
incurable; or
(6) That either party was afflicted with a
sexually-transmissible disease found to be serious
and appears to be incurable.
G.R. No. L-12790 August 31, 1960
JOEL JIMENEZ, plaintiff-appellee,
vs.
REMEDIOS CAÑIZARES, defendant.
Republic of the
Philippines, intervenor-appellant.
Acting Solicitor General Guillermo E. Torres and
Solicitor Pacifico P. de Castro for appellant.
Climaco, Ascarraga and Silang for appellee.
PADILLA, J.:
In a complaint filed on 7 June 1955 in the Court of
First Instance of Zamboanga the plaintiff Joel
Jimenez prays for a decree annulling his marriage
to the defendant Remedios Cañizares contracted
on 3 August 1950 before a judge of the municipal
court of Zamboanga City, upon the ground that the
office of her genitals or vagina was to small to
allow the penetration of a male organ or penis for
copulation; that the condition of her genitals as
described above existed at the time of marriage
and continues to exist; and that for that reason he
left the conjugal home two nights and one day after
they had been married. On 14 June 1955 the wife
was summoned and served a copy of the
complaint. She did not file an answer. On 29
September 1956, pursuant to the provisions of
article 88 of the Civil Code, the Court directed the city
attorney of Zamboanga to inquire whether there was a
collusion, to intervene for the State to see that the evidence
for the plaintiff is not a frame-up, concocted or fabricated.
On 17 December 1956 the Court entered an order requiring
the defendant to submit to a physical examination by a
competent lady physician to determine her physical
capacity for copulation and to submit, within ten days from
receipt of the order, a medical certificate on the result
thereof. On 14 March 1957 the defendant was granted
additional five days from notice to comply with the order of
17 December 1956 with warning that her failure to undergo
medical examination and submit the required doctor's
certificate would be deemed lack of interest on her part in
the case and that judgment upon the evidence presented by
her husband would be rendered.
After hearing, at which the defendant was not present, on
11 April 1957 the Court entered a decree annulling the
marriage between the plaintiff and the defendant. On 26
April 1957 the city attorney filed a motion for reconsideration
of the decree thus entered, upon the ground, among others,
that the defendant's impotency has not been satisfactorily
established as required by law; that she had not been
physically examined because she had refused to be
examined; that instead of annulling the marriage the Court
should have punished her for contempt of court and
compelled her to undergo a physical examination and
submit a medical certificate; and that the decree sought to
be reconsidered would open the door to married couples,
who want to end their marriage to collude or connive with
each other by just alleging impotency of one of them. He
prayed that the complaint be dismissed or that the wife be
subjected to a physical examination. Pending resolution of
his motion, the city attorney timely appealed from the
decree. On 13 May 1957 the motion for reconsideration was
denied.
The question to determine is whether the marriage in
question may be annulled on the strength only of the lone
testimony of the husband who claimed and testified that his
wife was and is impotent. The latter did not answer the
complaint, was absent during the hearing, and refused to
submit to a medical examination.
Marriage in this country is an institution in which the
community is deeply interested. The state has surrounded it
with safeguards to maintain its purity, continuity and
permanence. The security and stability of the state are
largely dependent upon it. It is the interest of each and
every member of the community to prevent the bringing
about of a condition that would shake its foundation and
ultimately lead to its destruction. The incidents of the status
are governed by law, not by will of the parties. The law
specifically enumerates the legal grounds, that must be
proved to exist by indubitable evidence, to annul a marriage.
In the case at bar, the annulment of the marriage in
question was decreed upon the sole testimony of the
husband who was expected to give testimony tending or
aiming at securing the annulment of his marriage he sought
and seeks. Whether the wife is really impotent cannot be
deemed to have been satisfactorily established, becase
from the commencement of the proceedings until the entry
of the decree she had abstained from taking part therein.
Although her refusal to be examined or failure to appear in
court show indifference on her part, yet from such attitude
the presumption arising out of the suppression of evidence
could not arise or be inferred because women of this
country are by nature coy, bashful and shy and would not
submit to a physical examination unless compelled to by
competent authority. This the Court may do without doing
violence to and infringing in this case is not
self-incrimination. She is not charged with any offense. She
is not being compelled to be a witness against
herself.1 "Impotency being an abnormal condition should
not be presumed. The presumption is in favor of
potency."2 The lone testimony of the husband that his wife
is physically incapable of sexual intercourse is insufficient to
tear asunder the ties that have bound them together as
husband and wife.
The decree appealed from is set aside and the case
remanded to the lower court for further proceedings in
accordance with this decision, without pronouncement as to
costs.
Art. 48. In all cases of annulment or declaration of absolute
nullity of marriage, the Court shall order the prosecuting
attorney or fiscal assigned to it to appear on behalf of the
State to take steps to prevent collusion between the parties
and to take care that 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. (88a)
Art. 49. During the pendency of the action and in
the absence of adequate provisions in a written
agreement between the spouses, the Court shall
provide for the support of the spouses and the
custody and support of their common children. The
Court shall give paramount consideration to the
moral and material welfare of said children and
their choice of the parent with whom they wish to
remain as provided to in Title IX. It shall also
provide for appropriate visitation rights of the other
parent.
G.R. No. 137590 March 26, 2001
FLORENCE MALCAMPO-SIN, petitioner,
vs.
PHILIPP T. SIN, respondent.
PARDO, J.:
The Family Code emphasizes the permanent
nature of marriage, hailing it as the foundation of
the family.1 It is this inviolability which is central to
our traditional and religious concepts of morality
and provides the very bedrock on which our
society finds stability.2 Marriage is immutable and
when both spouses give their consent to enter it,
their consent becomes irrevocable, unchanged
even by their independent wills.
However, this inviolability depends on whether the
marriage exists and is valid. If it is void ab initio,
the "permanence" of the union becomes irrelevant,
and the Court can step in to declare it so. Article 36
of the Family Code is the justification.3 Where it
applies and is duly proven, a judicial declaration
can free the parties from the rights, obligations,
burdens and consequences stemming from their
marriage.
A declaration of nullity of marriage under Article 36 of the
Family Code requires the application of procedural and
substantive guidelines. While compliance with these
requirements mostly devolves upon petitioner, the State is
likewise mandated to actively intervene in the procedure.
Should there be non-compliance by the State with its
statutory duty, there is a need to remand the case to the
lower court for proper trial.
The Case
What is before the Court4 is an appeal from a decision of
the Court of Appeals5 which affirmed the decision of the
Regional Trial Court, Branch 158, Pasig City6 dismissing
petitioner Florence Malcampo-Sin's (hereafter "Florence")
petition for declaration of nullity of marriage due to
psychological incapacity for insufficiency of evidence.
The Facts
On January 4, 1987, after a two-year courtship and
engagement, Florence and respondent Philipp T. Sin
(hereafter "Philipp"), a Portugese citizen, were married at St.
Jude Catholic Parish in San Miguel, Manila.7
On September 20, 1994, Florence filed with the Regional
Trial Court, Branch 158, Pasig City, a complaint for
"declaration of nullity of marriage" against Philipp. 8 Trial
ensued and the parties presented their respective
documentary and testimonial evidence.
On June 16, 1995, the trial court dismissed Florence's
petition.9
On December 19, 1995, Florence filed with the trial court a
notice of appeal to the Court of Appeals.10
After due proceedings, on April 30, 1998, the Court of
Appeals promulgated its decision, the dispositive portion of
which reads:
"IN THE LIGHT OF ALL THE FOREGOING, the Appeal is
DISMISSED. The Decision appealed from is AFFIRMED.
Cost against the Appellant."11
On June 23, 1998, petitioner filed with the Court of Appeals
a motion for reconsideration of the aforequoted decision. 12
On January 19, 1999, the Court of Appeals denied
petitioner's motion for reconsideration.13
Hence, this appeal.14
The Court's Ruling
We note that throughout the trial in the lower court, the
State did not participate in the proceedings. While Fiscal
Jose Danilo C. Jabson15 filed with the trial court a
manifestation dated November 16, 1994, stating that he
found no collusion between the parties,16 he did not actively
participate therein. Other than entering his appearance at
certain hearings of the case, nothing more was heard from
him. Neither did the presiding Judge take any step to
encourage the fiscal to contribute to the proceedings.
The Family Code mandates:
"ARTICLE 48. In all cases of annulment or declaration of
absolute nullity of marriage, the Court shall order the
prosecuting attorney or fiscal assigned to it to appear on
behalf of the State to take steps to prevent collusion
between the parties and to take care that evidence is not
fabricated or suppressed (italics ours).
"In the cases referred to in the preceding paragraph, no
judgment shall be based upon a stipulation of facts or
confession of judgment."
It can be argued that since the lower court dismissed the
petition, the evil sought to be prevented (i.e., dissolution of
the marriage) did not come about, hence, the lack of
participation of the State was cured. Not so. The task of
protecting marriage as an inviolable social institution
requires vigilant and zealous participation and not
mere pro-forma compliance. The protection of marriage as
a sacred institution requires not just the defense of a true
and genuine union but the exposure of an invalid one as
well. This is made clear by the following pronouncement:
"(8) The trial court must order the prosecuting
attorney or fiscal and the Solicitor General to
appear as counsel for the state. No decision shall
be handed down unless the Solicitor General
issues a certification, which will be quoted in the
decision,17 briefly stating therein his reasons for
his agreement or opposition as the case may be,
to the petition. The Solicitor-General shall
discharge the equivalent function of the defensor
vinculi contemplated under Canon 1095 (italics
ours)."18
The records are bereft of any evidence that the
State participated in the prosecution of the case
not just at the trial level but on appeal with the
Court of Appeals as well. Other than the
"manifestation" filed with the trial court on
November 16, 1994, the State did not file any
pleading, motion or position paper, at any stage of
the proceedings.
In Republic of the Philippines v. Erlinda Matias
Dagdag,19 while we upheld the validity of the
marriage, we nevertheless characterized the
decision of the trial court as "prematurely
rendered" since the investigating prosecutor was
not given an opportunity to present controverting
evidence before the judgment was rendered. This
stresses the importance of the participation of the
State.
Having so ruled, we decline to rule on the factual
disputes of the case, this being within the province
of the trial court upon proper re-trial.
Obiter Dictum
For purposes of re-trial, we guide the parties thus:
In Republic vs. Court of Appeals,20 the guidelines
in the interpretation and application of Article 36 of
the Family Code are as follows (omitting guideline
[8] in the enumeration as it was already earlier
quoted):
"(1) The burden of proof to show the nullity of the
marriage belongs to the plaintiff. Any doubt should
be resolved in favor of the existence and continuation of the
marriage and against its dissolution and nullity. This is
rooted in the fact that both our Constitution and our laws
cherish the validity of marriage and unity of the family. Thus,
our Constitution devotes an entire Article on the Family,
recognizing it "as the foundation of the nation." It decrees
marriage as legally "inviolable," thereby protecting it from
dissolution at the whim of the parties. Both the family and
marriage are to be "protected" by the state. The Family
Code echoes this constitutional edict on marriage and the
family and emphasizes their permanence, inviolability and
solidarity.
"(2) The root cause of the psychological incapacity must be:
a) medically or clinically identified, b) alleged in the
complaint, c) sufficiently proven by experts and d) clearly
explained in the decision. Article 36 of the Family Code
requires that the incapacity must be psychological — not
physical, although its manifestations and/or symptoms may
be physical. The evidence must convince the court that the
parties, or one of them, was mentally or psychically (sic) ill
to such an extent that the person could not have known the
obligations he was assuming, or knowing them, could not
have given valid assumption thereof. Although no example
of such incapacity need be given here so as not to limit the
application of the provision under the principle of ejusdem
generis, nevertheless such root cause must be identified as
a psychological illness and its incapacitating nature fully
explained. Expert evidence may be given by qualified
psychiatrists and clinical psychologists.
"(3) The incapacity must be proven to be existing at "the
time of the celebration" of the marriage. The evidence must
show that the illness was existing when the parties
exchanged their "I do's." The manifestation of the illness
need not be perceivable at such time, but the illness itself
must have attached at such moment, or prior thereto.
"(4) Such incapacity must also be shown to be medically or
clinically permanent or incurable. Such incurability may be
absolute or even relative only in regard to the other spouse,
not necessarily absolutely against everyone of the same
sex. Furthermore, such incapacity must be relevant to the
assumption of marriage obligations, not necessarily to those
not related to marriage, like the exercise of a profession or
employment in a job. Hence, a pediatrician may be effective
in diagnosing illnesses of children and prescribing medicine
to cure them but may not be psychologically capacitated to
procreate, bear and raise his/her own children as an
essential obligation of marriage.
"(5) Such illness must be grave enough to bring about the
disability of the party to assume the essential obligations of
marriage. Thus, "mild characteriological peculiarities, mood
changes, occasional emotional outbursts" cannot be
accepted as root causes. The illness must be shown as
downright incapacity or inability, not refusal, neglect or
difficulty, much less ill will. In other words, there is a natal or
supervening disabling factor in the person, an adverse
integral element in the personality structure that effectively
incapacitates the person from really accepting and thereby
complying with the obligations essential to marriage.
"(6) The essential marital obligations must be those
embraced by Articles 68 up to 71 of the Family Code as
regards the husband and wife as well as Articles 220, 221
and 225 of the same Code in regard to parents and their
children. Such non-complied marital obligation(s) must also
be stated in the petition, proven by evidence and included in
the text of the decision.
"(7) Interpretations given by the National Appellate
Matrimonial Tribunal of the Catholic Church in the
Philippines, while not controlling or decisive, should be
given great respect by our courts."
The Fallo
WHEREFORE, the Court REVERSES and SETS ASIDE
the appealed decision of the Court of Appeals in CA-G.R.
CV No. 51304, promulgated on April 30, 1998 and the
decision of the Regional Trial Court, Branch 158, Pasig City
in Civil Case No. 3190, dated June 16, 1995.
Let the case be REMANDED to the trial court for proper
trial.
No costs.
SO ORDERED.
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.2 The parties' marriage
was clerically annulled by 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.4 The court 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
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."7 Petitioner opposed the motion on
October 17, 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. 11 If the petition
is granted, the court shall proceed to hear and determine
the case as if a timely motion for new trial had been granted
therein. 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." 13 In his affidavit of merit before the trial court, he
attached a certification by Lt. Col. Plaridel F. Vidal, Director
of the Narcotics Command, Drug Rehabilitation Center
which states that on March 27, 1990 petitioner was admitted
for treatment of drug dependency at the Drug Rehabilitation
Center at Camp Bagong Diwa, Bicutan, Taguig, Metro
Manila of the Philippine Constabulary-Integrated National
Police. 14 The records, however, show that the former
counsel of petitioner did not inform the trial court of this
confinement. And when the court rendered its decision, the
same counsel was out of the country for which reason the
decision became final and executory as no appeal was
taken therefrom. 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. 17
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. 18 Indeed,
relief will not be granted to a party who seeks avoidance
from the effects of the judgment when the loss of the
remedy at law was due to his own negligence; otherwise the
petition for relief can be used to revive the right to appeal
which had been lost thru inexcusable negligence. 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
A grant of annulment of marriage or legal
separation by default is fraught with the danger of
collusion. 22 Hence, in all cases for annulment,
declaration of nullity of marriage and legal
separation, the prosecuting attorney or fiscal is
ordered to appear on behalf of the state for the
purpose of preventing any collusion between the
parties and to take care that their evidence is not
fabricated or suppressed. If the defendant spouse
fails to answer the complaint, the court cannot
declare him or her in default but instead, should
order the prosecuting attorney to determine if
collusion exists between the parties.23 The
prosecuting attorney or fiscal may oppose the
application for legal separation or annulment
through the presentation of his own evidence, if in
his opinion, the proof adduced is dubious and
fabricated.24 Our Constitution is committed to the
policy of strengthening the family as a basic social
institution. 25 Our family law is based on the policy
that marriage is not a mere contract, but a social
institution in which the state is vitally interested.
The state can find no stronger anchor than on
good, solid and happy families. The break up of
families weakens our social and moral fabric and,
hence, their preservation is not the concern alone of the
family members.
The facts in the case at bar do not call for the strict
application of Articles 48 and 60 of the Family Code. For
one, petitioner was not declared in default by the trial court
for failure to answer. Petitioner filed his answer to the
complaint and contested the cause of action alleged by
private respondent. He actively participated in the
proceedings below by filing several pleadings and
cross-examining the witnesses of private respondent. It is
crystal clear that every stage of the litigation was
characterized by a no-holds barred contest and not by
collusion.
The role of the prosecuting attorney or fiscal in annulment of
marriage and 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.
Suffice it to state that the finding of the trial court as to the
existence or non-existence of petitioner's psychological
incapacity at the time of the marriage is final and binding on
us. 26 Petitioner has not sufficiently shown that the trial
court's factual findings and evaluation of the testimonies of
private respondent's witnesses vis-a-vis petitioner's
defenses are clearly and manifestly erroneous. 27
IN VIEW WHEREOF, the petition is denied and the decision
dated July 29, 1994 of the Court of Appeals in CA-G.R. CV
No. 37925 is affirmed.
contravention of a previous understanding, to have
the children in his company on weekends. Silva
filed a petition for custodial rights over the children
before the Regional Trial Court (RTC), Branch 78,
of Quezon City. The petition was opposed by
Gonzales who averred that Silva often engaged in
"gambling and womanizing" which she feared
could affect the moral and social values of the
children.
telling how this kind of set-up, no matter how temporary
and/or remote, would affect the moral and emotional
conditions of the minor children. Knowing that they are
illegitimate is hard enough, but having to live with it,
witnessing their father living with a woman not their mother
may have a more damaging effect upon them.
"Article 3 of PD 603, otherwise known as the Child and
Youth Welfare Code, provides in part:

[G.R. No. 114742. July 17, 1997]
CARLITOS E. SILVA, Petitioner, v. HON. COURT OF
APPEALS and SUZANNE T. GONZALES, Respondents.
DECISION
VITUG, J.:
Parents have the natural right, as well as the moral and
legal duty, to care for their children, see to their proper
upbringing and safeguard their best interest and welfare.
This authority and responsibility may not be unduly denied
the parents; neither may it be renounced by them. Even
when the parents are estranged and their affection for each
other is lost, the attachment and feeling for their offsprings
invariably remain unchanged. Neither the law nor the courts
allow this affinity to suffer absent, of course, any real, grave
and imminent threat to the well-being of the child.
The petition bears upon this concern.
Carlitos E. Silva, a married businessman, and Suzanne T.
Gonzales, an unmarried local actress, cohabited without the
benefit of marriage. The union saw the birth of two children:
Ramon Carlos and Rica Natalia. Not very long after, a rift in
their relationship surfaced. It began, according to Silva,
when Gonzales decided to resume her acting career over
his vigorous objections. The assertion was quickly refuted
by Gonzales who claimed that she, in fact, had never
stopped working throughout their relationship. At any rate,
the two eventually parted ways.
The instant controversy was spawned, in February 1986, by
the refusal of Gonzales to allow Silva, in apparent
In an order, dated 07 April 1989, the trial court "`Art. 3. Rights of the Child. - x x x
adjudged:
`(1) x x x
"WHEREFORE, premises considered, judgment is
rendered directing respondent to allow herein
`(2) x x x
petitioner visitorial rights to his children during
Saturdays and/or Sundays, but in no case should
he take out the children without the written `(3) x x x
consent of the mother or respondent
herein. No pronouncement as to `(4) x x x
costs."1chanroblesvirtuallawlibrary
`(5) Every child has the right to be brought up in an
Silva appeared somehow satisfied with the atmosphere of morality and rectitude for the enrichment and
judgment for only Gonzales interposed an appeal the strengthening of his character.
from the RTCs order to the Court of Appeals.
`(6) x x x
In the meantime, Gonzales got married to a Dutch
national. The newlyweds emigrated to Holland with `(7) x x x
Ramon Carlos and Rica Natalia.
`(8) Every child has the right to protection
On 23 September 1993, the appellate tribunal against exploitation, improper influences, hazards and other
ruled in favor of Gonzales; it held: conditions or circumstances prejudicial to
his physical, mental, emotional, social and moral
"In all questions, regarding the care, custody, development.
education and property of the child, his welfare
shall be the paramount consideration' - not the `x x x'
welfare of the parents (Art. 8, PD 603). Under the
predicament and/or status of both
"With Articles 3 and 8 of PD 603, in mind, We find it to the
petitioner-appellee and respondent-appellant, We
best interest of the minor children, to deny visitorial and/or
find it more wholesome morally and emotionally for
temporary custodial rights to the father, even at the expense
the children if we put a stop to the rotation of
of hurting said parent. After all, if indeed his love for the
custody of said children. Allowing these children to
children is genuine and more divine than the love for himself,
stay with their mother on weekdays and then with
a little self-sacrifice and self-denial may bring more benefit
their father and the latter's live-in partner on
to the children. While petitioner-appellee, as father, may not
weekends may not be conducive to a normal
intentionally prejudice the children by improper influence,
up-bringing of children of tender age. There is no
what the children may witness and hear while in their
father's house may not be in keeping with the atmosphere
of morality and rectitude where they should be brought up.
"The children concerned are still in their early formative
years of life. The molding of the character of the child starts
at home. A home with only one parent is more normal than
two separate houses - (one house where one parent lives
and another house where the other parent with another
woman/man lives). After all, under Article 176 of the Family
Code, illegitimate children are supposed to use the
surname of and shall be under the parental authority of their
mother.
"The child is one of the most important assets of the nation.
It is thus important we be careful in rearing the children
especially so if they are illegitimates, as in this case.
"WHEREFORE, in view of all the foregoing, judgment is
hereby rendered giving due course to the appeal. The Order
of the Regional Trial Court of Quezon City dated April 7,
1989 is hereby reversed. Petitioner-appellee's petition for
visitorial rights is hereby denied.
"SO ORDERED."2chanroblesvirtuallawlibrary
Silva comes to this Court for relief.
The issue before us is not really a question of child custody;
instead, the case merely concerns the visitation right of a
parent over his children which the trial court has adjudged in
favor of petitioner by holding that he shall have visitorial
rights to his children during Saturdays and/or Sundays, but
in no case (could) he take out the children without the
written consent of the mother x x x." The visitation right
referred to is the right of access of a noncustodial parent to
his or her child or children.3chanroblesvirtuallawlibrary
There is, despite a dearth of specific legal provisions,
enough recognition on the inherent and natural right of
parents over their children. Article 150 of the Family Code
expresses that "(f)amily relations include those x x x (2)
(b)etween parents and children; x x x." Article 209, in
relation to Article 220, of the Code states that it is the
natural right and duty of parents and those exercising
parental authority to, among other things, keep children in
their company and to give them love and affection, advice
and counsel, companionship and understanding.
The Constitution itself speaks in terms of
the "natural and primary rights of parents in the
rearing of the youth.4 There is nothing conclusive
to indicate that these provisions are meant to
solely address themselves to legitimate
relationships. Indeed, although in varying degrees,
the laws on support and successional rights, by
way of examples, clearly go beyond the legitimate
members of the family and so explicitly encompass
illegitimate relationships as well.5 Then, too, and
most importantly, in the declaration of nullity of
marriages, a situation that presupposes
a void or inexistent marriage, Article 49 of the
Family Code provides for appropriate visitation
rights to parents who are not given custody of their
children.
There is no doubt that in all cases involving a child,
his interest and welfare is always the paramount
consideration. The Court shares the view of the
Solicitor General, who has recommended due
course to the petition, that a few hours spent by
petitioner with the children, however, could not all
be that detrimental to the children. Similarly, what
the trial court has observed is not entirely without
merit; thus:
"The allegations of respondent against the
character of petitioner, even assuming as true,
cannot be taken as sufficient basis to render
petitioner an unfit father. The fears expressed by
respondent to the effect that petitioner shall be
able to corrupt and degrade their children once
allowed to even temporarily associate with
petitioner is but the product of respondent's
unfounded imagination, for no man, bereft of all
moral persuasions and goodness, would ever take
the trouble and expense in instituting a legal action
for the purpose of seeing his illegitimate children. It
can just be imagined the deep sorrows of a father
who is deprived of his children of tender
ages."6chanroblesvirtuallawlibrary
The Court appreciates the apprehensions of
private respondent and their well-meant concern
for the children; nevertheless, it seems unlikely
that petitioner would have ulterior motives or undue designs
more than a parents natural desire to be able to call on,
even if it were only on brief visits, his own children. The trial
court, in any case, has seen it fit to understandably provide
this precautionary measure, i.e., "in no case (can petitioner)
take out the children without the written consent of the
mother."
WHEREFORE, the decision of the trial court is
REINSTATED, reversing thereby the judgment of the
appellate court which is hereby SET ASIDE. No costs.
SO ORDERED.
G.R. No. 122749 July 31, 1996
ANTONIO A. S. VALDEZ, petitioner,
vs.
REGIONAL TRIAL COURT, BRANCH 102, QUEZON
CITY, and CONSUELO M.
GOMEZ-VALDEZ, respondents.
VITUG, J.:p
The petition for new bewails, purely on the question of law,
an alleged error committed by the Regional Trial Court in
Civil Case No. Q-92-12539. Petitioner avers that the court a
quo has failed to apply the correct law that should govern
the disposition of a family dwelling in a situation where a
marriage is declared void ab initio because of psychological
incapacity on the part of either or both parties in the
contract.
The pertinent facts giving rise to this incident are, by large,
not in dispute.
Antonio Valdez and Consuelo Gomez were married on 05
January 1971. Begotten during the marriage were five
children. In a petition, dated 22 June 1992, Valdez sought
the declaration of nullity of the marriage pursuant to Article
36 of the Family code (docketed Civil Case No. Q-92-12539,
Regional Trial Court of Quezon City, Branch 102). After the
hearing the parties following the joinder of issues, the trial
court,1 in its decision of 29 July 1994, granted the
petition, viz:
WHEREFORE, judgment is hereby rendered as follows:
(1) The marriage of petitioner Antonio Valdez and
respondent Consuelo Gomez-Valdez is hereby declared
null and void under Article 36 of the Family Code on the
ground of their mutual psychological incapacity to comply
with their essential marital obligations;
(2) The three older children, Carlos Enrique III, Antonio
Quintin and Angela Rosario shall choose which parent they
would want to stay with.
Stella Eloisa and Joaquin Pedro shall be placed in the
custody of their mother, herein respondent Consuelo
Gomez-Valdes.
The petitioner and respondent shall have visitation rights
over the children who are in the custody of the other.
(3) The petitioner and the respondent are directed to start
proceedings on the liquidation of their common
properties as defined by Article 147 of the Family Code, and
to comply with the provisions of Articles 50, 51, and 52 of
the same code, within thirty (30) days from notice of this
decision.
Let a copy of this decision be furnished the Local Civil
Registrar of Mandaluyong, Metro Manila, for proper
recording in the registry of marriages.2 (Emphasis ours.)
Consuelo Gomez sought a clarification of that portion of the
decision directing compliance with Articles 50, 51 and 52 of
the Family Code. She asserted that the Family Code
contained no provisions on the procedure for the liquidation
of common property in "unions without marriage."
Parenthetically, during the hearing of the motion, the
children filed a joint affidavit expressing their desire to
remain with their father, Antonio Valdez, herein petitioner.
In an order, dated 05 May 1995, the trial court made the
following clarification:
Consequently, considering that Article 147 of the
Family Code explicitly provides that the property
acquired by both parties during their union, in the
absence of proof to the contrary, are presumed to
have been obtained through the joint efforts of the
parties and will be owned by them in equal shares,
plaintiff and defendant will own their "family
home" and all their properties for that matter in
equal shares.
In the liquidation and partition of properties owned
in common by the plaintiff and defendant, the
provisions on ownership found in the Civil Code
shall apply.3 (Emphasis supplied.)
In addressing specifically the issue regarding the
disposition of the family dwelling, the trial court
said:
Considering that this Court has already declared
the marriage between petitioner and respondent
as null and void ab initio, pursuant to Art. 147, the
property regime of petitioner and respondent shall
be governed by the rules on ownership.
The provisions of Articles 102 and 129 of the
Family Code finds no application since Article 102
refers to the procedure for the liquidation of
the conjugal partnership property and Article 129
refers to the procedure for the liquidation of
the absolute community of property.4
Petitioner moved for a reconsideration of the order.
The motion was denied on 30 October 1995.
In his recourse to this Court, petitioner submits that
Articles 50, 51 and 52 of the Family Code should
be held controlling: he argues that:
I owned by them in equal shares. For purposes of this Article,
Article 147 of the Family Code does not apply to
cases where the parties are psychologically
incapacitated.
II
Articles 50, 51 and 52 in relation to Articles 102 and 129 of
the Family Code govern the disposition of the family
dwelling in cases where a marriage is declared void ab initio,
including a marriage declared void by reason of the
psychological incapacity of the spouses.
III
Assuming arguendo that Article 147 applies to marriages
declared void ab initio on the ground of the psychological
incapacity of a spouse, the same may be read consistently
with Article 129.
IV
It is necessary to determine the parent with whom majority
of the children wish to stay.5
The trial court correctly applied the law. In a void marriage,
regardless of the cause thereof, the property relations of the
parties during the period of cohabitation is governed by the
provisions of Article 147 or Article 148, such as the case
may be, of the Family Code. Article 147 is a remake of
Article 144 of the Civil Code as interpreted and so applied in
previous cases;6 it provides:
Art. 147. When a man and a woman who are capacitated to
marry each other, live exclusively with each other as
husband and wife without the benefit of marriage or under a
void marriage, their wages and salaries shall be owned by
them in equal shares and the property acquired by both of
them through their work or industry shall be governed by the
rules on co-ownership.
In the absence of proof to the contrary, properties acquired
while they lived together shall be presumed to have been
obtained by their joint efforts, work or industry, and shall be
a party who did not participate in the acquisition by the other
party of any property shall be deemed to have contributed
jointly in the acquisition thereof in the former's efforts
consisted in the care and maintenance of the family and of
the household.
Neither party can encumber or dispose by acts inter vivos of
his or her share in the property acquired during cohabitation
and owned in common, without the consent of the other,
until after the termination of their cohabitation.
When only one of the parties to a void marriage is in good
faith, the share of the party in bad faith in the ownership
shall be forfeited in favor of their common children. In case
of default of or waiver by any or all of the common children
or their descendants, each vacant share shall belong to the
innocent party. In all cases, the forfeiture shall take place
upon the termination of the cohabitation.
This particular kind of co-ownership applies when a man
and a woman, suffering no illegal impediment to marry each
other, so exclusively live together as husband and wife
under a void marriage or without the benefit of marriage.
The term "capacitated" in the provision (in the first
paragraph of the law) refers to the legal capacity of a party
to contract marriage, i.e., any "male or female of the age of
eighteen years or upwards not under any of the
impediments mentioned in Articles 37 and 38"7 of the Code.
Under this property regime, property acquired by both
spouses through their work and industry shall be governed
by the rules on equal co-ownership. Any property acquired
during the union is prima facie presumed to have been
obtained through their joint efforts. A party who did not
participate in the acquisition of the property shall be
considered as having contributed thereto jointly if said
party's "efforts consisted in the care and maintenance of the
family household."8 Unlike the conjugal partnership of gains,
the fruits of the couple's separate property are not included
in the co-ownership.
Article 147 of the Family Code, in the substance and to the
above extent, has clarified Article 144 of the Civil Code; in
addition, the law now expressly provides that —
(a) Neither party can dispose or encumber by
act intervivos his or her share in co-ownership property,
without consent of the other, during the period of
cohabitation; and
(b) In the case of a void marriage, any party in bad faith
shall forfeit his or her share in the co-ownership in favor of
their common children; in default thereof or waiver
by any or all of the common children, each vacant
share shall belong to the respective surviving
descendants, or still in default thereof, to the
innocent party. The forfeiture shall take place upon
the termination of the cohabitation9 or declaration
of nullity of the marriage. 10
When the common-law spouses suffer from a legal
impediment to marry or when they do not live
exclusively with each other (as husband and wife),
only the property acquired by both of them through
their actual joint contribution of money, property or
industry shall be owned in common and in
proportion to their respective contributions. Such
contributions and corresponding shares, however,
are prima facie presumed to be equal. The share
of any party who is married to another shall accrue
to the absolute community or conjugal partnership,
as the case may be, if so existing under a valid
marriage. If the party who has acted in bad faith is
not validly married to another, his or her share
shall be forfeited in the manner already heretofore
expressed. 11
In deciding to take further cognizance of the issue
on the settlement of the parties' common property,
the trial court acted neither imprudently nor
precipitately; a court which has jurisdiction to
declare the marriage a nullity must be deemed
likewise clothed in authority to resolve incidental
and consequential matters. Nor did it commit a
reversible error in ruling that petitioner and private
respondent own the "family home" and all their
common property in equal shares, as well as in
concluding that, in the liquidation and partition of
the property owned in common by them, the
provisions on co-ownership under the Civil Code,
not Articles 50, 51 and 52, in relation to Articles
102 and 129, 12 of the Family Code, should aptly
prevail. The rules set up to govern the liquidation
of either the absolute community or the conjugal
partnership of gains, the property regimes
recognized for valid and voidable marriages (in the
latter case until the contract is annulled), are
irrelevant to the liquidation of the co-ownership
that exists between common-law spouses. The
first paragraph of Articles 50 of the Family Code, applying
paragraphs (2), (3), (4) and 95) of Article 43, 13 relates only,
by its explicit terms, to voidable marriages and,
exceptionally, to void marriages under Article 40 14 of the
Code, i.e., the declaration of nullity of a subsequent
marriage contracted by a spouse of a prior void marriage
before the latter is judicially declared void. The latter is a
special rule that somehow recognizes the philosophy and
an old doctrine that void marriages are inexistent from the
very beginning and no judicial decree is necessary to
establish their nullity. In now requiring for purposes of
remarriage, the declaration of nullity by final judgment of the
previously contracted void marriage, the present law aims
to do away with any continuing uncertainty on the status of
the second marriage. It is not then illogical for the provisions
of Article 43, in relation to Articles 41 15 and 42, 16 of the
Family Code, on the effects of the termination of a
subsequent marriage contracted during the subsistence of a
previous marriage to be made applicable pro hac vice. In all
other cases, it is not to be assumed that the law has also
meant to have coincident property relations, on the one
hand, between spouses in valid and voidable marriages
(before annulment) and, on the other, between common-law
spouses or spouses of void marriages, leaving to ordain, on
the latter case, the ordinary rules on co-ownership subject
to the provisions of the Family Code on the "family
home," i.e., the provisions found in Title V, Chapter 2, of the
Family Code, remain in force and effect regardless of the
property regime of the spouses.
WHEREFORE, the questioned orders, dated 05 May 1995
and 30 October 1995, of the trial court are AFFIRMED. No
costs.
TITLE II
LEGAL SEPARATION
Art. 55. A petition for legal separation may be filed on any of
the following grounds:
(1) Repeated physical violence or grossly abusive conduct
directed against the petitioner, a common child, or a child of
the petitioner;
(2) Physical violence or moral pressure to compel the
petitioner to change religious or political affiliation;
(3) Attempt of respondent to corrupt or induce the petitioner,
a common child, or a child of the petitioner, to engage in
prostitution, or connivance in such corruption or
inducement;
(4) Final judgment sentencing the respondent to
imprisonment of more than six years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent
bigamous marriage, whether in the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the
petitioner; or
(10) Abandonment of petitioner by respondent without
justifiable cause for more than one year.
For purposes of this Article, the term "child" shall include a
child by nature or by adoption. (9a)
Art. 56. The petition for legal separation shall be denied on
any of the following grounds:
(1) Where the aggrieved party has condoned the offense or
act complained of;
(2) Where the aggrieved party has consented to the
commission of the offense or act complained of;
(3) Where there is connivance between the parties in the
commission of the offense or act constituting the ground for
legal separation;
(4) Where both parties have given ground for legal
separation;
(5) Where there is collusion between the parties to obtain
decree of legal separation; or
(6) Where the action is barred by prescription. (100a)
Art. 57. An action for legal separation shall be filed
within five years from the time of the occurrence of
the cause. (102)
A.M. No. 02-11-11-SC March 4, 2003
RE: PROPOSED RULE ON LEGAL
SEPARATION
RESOLUTION
Acting on the letter of the Chairman of the
Committee on Revision of the Rules of Court
submitting for this Court's consideration and
approval the Proposed Rule on Legal Separation,
the Court Resolved to APPROVED the same.
The Rule shall take effect on March 15,
2003 following its publication in a newspaper of
general circulation not later than March 7, 2003
March 4, 2003
Davide Jr. C.J., Bellosillo, Puno, Vitug, Mendoza,
Panganiban, Quisumbing, Sandoval Gutierrez,
Carpio, Austria-Martinez, Carpio-Morales, Callejo,
Sr. and Azcuna, JJ.
Ynares-Santiago, on leave,
Corona, officially on leave.
RULE ON LEGAL SEPARATION
Section 1. Scope. - This Rule shall govern
petitions for legal separation under the Family
Code of the Philippines.
The Rules of Court shall apply
suppletorily.
Section 2. Petition. - (a) Who may and when to
file. - (1) A petition for legal separation may be filed
only by the husband or the wife, as the case may
be within five years from the time of the occurrence of any
of the following causes:
(a) Repeated physical violence or grossly abusive conduct
directed against the petitioner, a common child, or a child of
the petitioner;
(b) Physical violence or moral pressure to compel the
petitioner to change religious or political affiliation;
(c) Attempt of respondent to corrupt or induce the petitioner,
a common child, or a child of the petitioner, to engage in
prostitution, or connivance in such corruption or
inducement;
(d) Final judgment sentencing the respondent to
imprisonment of more than six years, even if pardoned;
(e) Drug addiction or habitual alcoholism of the respondent;
(f) Lesbianism or homosexuality of the respondent;
(g) Contracting by the respondent of a subsequent
bigamous marriage, whether in or outside the Philippines;
(h) Sexual infidelity or perversion of the respondent;
(i) Attempt on the life of petitioner by the respondent; or
(j) Abandonment of petitioner by respondent without
justifiable cause for more than one year.
(b) Contents and form. - The petition for legal separation
shall:
(1) Allege the complete facts constituting the cause of
action.
(2) State the names and ages of the common children of the
parties, specify the regime governing their property relations,
the properties involved, and creditors, if any. If there is no
adequate provision in a written agreement between the
parties, the petitioner may apply for a provisional order for
spousal support, custody and support of common children,
visitation rights, administration of community or conjugal
property, and other similar matters requiring urgent action,
(3) Be verified and accompanied by a certification against
forum shopping. The verification and certification must be
personally signed by the petitioner. No petition may be filed
solely by counsel or through an attorney-in-fact. If the
petitioner is in a foreign country, the verification and
certification against forum shopping shall be authenticated
by the duly authorized officer of the Philippine embassy or
legation, consul general, consul or vice-consul or consular
agent in said country
(4) Be filed in six copies. The petitioner shall, within five
days from such filing, furnish a copy of the petition to the
City or Provincial Prosecutor and the creditors, if any, and
submit to the court proof of such service within the same
period.
Failure to comply with the preceding requirements
may be a ground for immediate dismissal of the petition.
(c) Venue. - The petition shall be filed in the Family Court of
the province or city where the petitioner or the respondent
has been residing for at least six months prior to the date of
filing "or in The case of a non-resident respondent, where
he may be found in the Philippines, at the election of the
petitioner.
Section 3. Summons. - The service of summons shall be
governed by Rule 14 of the Rules of Court and by the
following rules:
(a) Where the respondent cannot be located at his given
address or his whereabouts are unknown and cannot be
ascertained by diligent inquiry, service of summons may, by
leave of court, be effected upon him by publication once a
week for two consecutive weeks in a newspaper of general
circulation in the Philippines and in such place as the court
may order. In addition, a copy of the summons shall be
served on respondent at his last known address by
registered mail or by any other means the court may deem
sufficient.
(b) The summons to be published shall be contained in an
order of the court with the following data; (1) title of the case;
(2) docket number; (3) nature of the petition; (4)
principal grounds of the petition and the reliefs
prayed for, and (5) a directive for respondent to
answer within thirty days from the last issue of
publication.
Section 4. Motion to Dismiss. - No motion to
dismiss the petition shall be allowed except on the
ground of lack of jurisdiction over the subject
matter or over the parties; provided, however, that
any other ground that might warrant a dismissal of
the case may be raised as an affirmative defense
in an answer.
Section 5. Answer. - (a) The respondent shall file
his answer within fifteen days from receipt of
summons, or within thirty days from the last issue
of publication in case of service of summons by
publication. The answer must be verified by
respondent himself and not by counsel or
attorney-in-fact.
(b) If the respondent fails to file an answer, the
court shall not declare him in default.
(c) Where no answer is filed/or if the answer does
not tender an issue the court shall order the public
prosecutor to investigate whether collusion exists
between the parties.
Section 6. Investigation Report of Public
Prosecutor. - (a) Within one one month after
receipt of the court order mentioned in paragraph
(c) of the preceeding section, the public prosecutor
shall submit a report to the court on whether the
parties are in collusion and serve copies on the
parties and their respective counsels, if any.
(b) 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 copy of the report. The court shall set the report
for hearing and if convinced that parties are in
collusion,-it shall dismiss the petition.
(c) 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.
Section 7. Social Worker. - The court may require a social
worker to conduct a case study and to submit the
corresponding report at least three days before the pre-trial.
The court may also require a case study at any stage of the
case whenever necessary,
Section 8. Pre-trial. -
(a) Pre-trial mandatory.-A pre-trial is mandatory. On motion
or motu proprio, the court shall set the pre-trial after the last
pleading has been served and filed, or upon receipt of the
report of the public prosecutor that no collusion exists
between the parties on a date not earlier than six months
from date of the filing of the petition.
(b) Notice of Pre-trial.-(1) The notice of pre-trial shall
contain:
(a) the date of pre-trial conference; and
(b) an order directing the parties to file and serve their
respective pre-trial briefs in such manner as shall ensure
the receipt thereof by the adverse party at least three days
before the date of pre-trial.
(2) The notice shall be served separately on the parties and
their respective counsels as well as on the public prosecutor.
It shall be their duty to appear personally at the pre-trial.
(3) Notice of pre-trial shall be sent to the respondent even if
he fails to file an answer. In case of summons by publication
and the respondent failed to file his answer, notice of
pre-trial shall be sent to respondent at his last known
address.
Section 9. Contents of pre-trial brief. - The pre-trial brief
shall contain the following:
(1) A statement of the willingness of the parties to enter into
agreements as may be allowed by law, indicating the
desired terms thereof;
(2) A concise statement of their respective claims together
with the applicable laws and authorities;
(3) Admitted facts and proposed stipulations of facts, as well
as the disputed factual and legal issues;
(4) All the evidence to be presented, including expert
opinion, if any, briefly stating or describing the nature and
purpose thereof;
(5) The number and names of the witnesses and their
respective affidavits; and
(6) Such other matters as the court may require.
Failure to file the pre-trial brief or to comply with its
required contents shall have the same effect as failure to
appear at the pre-trial under the succeeding section.
Section 10. Effect of failure to appear at the pre-trial. - (1) If
the petitioner fails to appear personally, the case shall be
dismissed unless his counsel or a duly authorized
representative appears in court and proves a valid excuse
for the non-appearance of the petitioner.
(2) If the respondent filed his answer but fails to appear, the
court shall proceed with the pre-trial and require the public
prosecutor to investigate the non-appearance of the
respondent and submit within fifteen days a report to the
court stating whether his non-appearance is due to any
collusion between the parties/ If there is no collusion the
court shall require the public prosecutor to intervene for the
State during the trial on the.merits to prevent suppression or
fabrication of evidence.
Section 11. Pre-trial conference. - At the pre-trial
conference, the court may refer the issues to a mediator
who shall assist the parties in reaching an agreement on
matters not prohibited by law.
The mediator shall render a report within
one month from referral which, for good reasons,
the court may extend for a period not exceeding
one month.
In case mediation is not availed of or
where it fails, the court shall proceed with the
pre-trial conference, on which occasion it shall
consider the advisability of receiving expert
testimony and such other matters as may aid in the
prompt disposition of the petition.
Section 12. Pre-trial order. - (a) The proceedings
in the pre-trial shall be recorded. Upon termination
of the pre-trial, the court shall issue a pre-trial
order which shall recite in detail the matters taken
up in the conference, the action taken thereon, the
amendments allowed on the pleadings, and,
except as to the ground of legal separation, the
agreements or admissions made by the parties on
any of the matters considered, including any
provisional order that may be necessary or agreed
upon by the parties.
(b) Should the action proceed to trial, the order
shall contain a recital of the following:
(1) Facts undisputed, admitted, and those which
need not be proved subject to Section 13 of this
Rule;
(2) Factual and legal issues to be litigated;
(3) Evidence, including objects and documents,
that have been marked and will be presented;
(4) Names of witnesses who will be presented and
their testimonies in the form of affidavits; and
(5) Schedule of the presentation of evidence.
The pre-trial order shall also contain a
directive to the public prosecutor to appear for the
State and take steps to prevent collusion between
the parties at any stage of the proceedings and
fabrication or suppression of evidence during the trial on the
merits.
(c) The parties shall not be allowed to raise issues or
present witnesses and evidence other than those stated in
the pre-trial order. The order shall control the trial of the
case unless modified by the court to prevent manifest
injustice.
(d) The parties shall have five days from receipt of the
pre-trial order to propose corrections or modifications.
Section 13. Prohibited compromise. - The court shall not
allow compromise on prohibited matters, such as the
following:
(1) The civil status of persons;
(2) The validity of a marriage or of a legal separation;
(3) Any ground lor legal separation;
(4) Future support;
(5) The jurisdiction of courts; and
(6) Future legitime.
Section 14. Trial. - (a) The presiding judge shall personally
conduct the trial of the case. No delegation of the reception
of evidence to a commissioner shall be allowed except as to
matters involving property relations of the spouses.
(b) The grounds for legal separation must be proved. No
judgment on the pleadings, summary judgment, or
confession of judgment shall be allowed.
(c) The court may order the exclusion from the courtroom of
all persons, including members of the press, who do not
have a direct interest in the case. Such an order may be
made if the court determines on the record othat requiring a
party to testify in open court would not enhance the
ascertainment of truth; would cause to the party
psychological harm or inability to effectively communicate
due to embarrassment, fear, or timidity; would violate the
party's right to privacy; or would be offensive to decency
(d) No copy shall be taken nor any examination or perusal
of the records of the case or parts thereof be made by any
person other than a party or counsel of a party, except by
order of the court.
Section 15. Memoranda. - The court may require the
parties and the public prosecutor to file their respective
memoranda in support of their claims within fifteen days
from the date the trial is terminated. No other pleadings or
papers may be submitted without leave of court. After the
lapse of the period herein provided, the case will be
considered submitted for decision, with or without the
memoranda.
Section 16. Decision. - (a) The court shall deny the petition
on any of the following grounds:
(1) The aggrieved party has condoned the offense or act
complained of or has consented to the commission of the
offense or act complained of;
(2) There is connivance in the commission of the offense-or
act constituting the ground for legal separation;
(3) Both parties have given ground for legal separation;
(4) There is collusion between the parties to obtain the
decree of legal separation; or
(5) The action is barred by prescription.
(b) If the court renders a decision granting the petition, it
shall declare therein that the Decree of Legal Separation
shall be issued by the court only after full compliance with
liquidation under the Family Code.
However, in the absence of any property of.the
parties, the court shall forthwith issue a Decree of Legal
Separation which shall be registered in the Civil Registry
where the marriage was recorded and in the Civil Registry
where the Family Court granting the legal separation is
located.
(c) The decision shall likewise declare that:
(1) The spouses are entitled to live separately from
each other but the marriage bond is not severed;
(2) The obligation of mutual support between the
spouses ceases; and
(3) The offending spouse is disqualified from
inheriting from the innocent spouse by intestate
succession, and provisions in favor of the
offending spouse made in the will of the innocent
spouse are revoked by operation of law.
(d) The parties, including the Solicitor General and
the public prosecutor, shall be served with copies
of the decision personally or by registered mail. If
the respondent summoned by publication failed to
appear in the action, the dispositive part of the
decision shall also be published once in a
newspaper of general circulation.
Section 17. Appeal. -
(a) Pre-condition. - No appeal from the decision
shall be allowed unless the appellant has filed a
motion for reconsideration or new trial within fifteen
days from notice of judgment.
(b) Notice of Appeal - An aggrieved party or the
Solicitor General may appeal from the decision by
filing a Notice of Appeal within fifteen days from
notice of denial of the motion for reconsideration or
new trial. The appellant shall serve a copy of the
notice of appeal upon the adverse parties.
Section 18. Liquidation, partition and distribution,
custody, and support of minor children. - Upon
entry of the judgment granting the petition, or, in
case of appeal, upon receipt of the entry of
judgment of the appellate court granting the
petition, the Family Court, on motion of either party,
shall proceed with the liquidation, partition and
distribution of the properties of the spouses,
including custody and support of common children,
under the Family Code unless such matters had been
adjudicated in previous judicial proceedings.
Section 19. Issuance of Decree of Legal Separation. - (a)
The court shall issue the Decree of Legal Separation after:
(1) registration of the entry of judgment granting the petition
tor legal separation in the Civil Registry where the marriage
was celebrated and in the Civil Registry where the Family
Court is located; and
(2) registration of the approved partition and distribution of
the properties of the spouses, in the proper Register of
Deeds where the real properties are located.
(b) The court shall quote in the Decree the dispositive
portion of the judgment entered and attach to the Decree
the approved deed of partition.
Section 20. Registration and publication of the Decree of
Legal Separation; decree as best evidence. -
(a) Registration of decree.-The prevailing party shall cause
the registration of the Decree in the Civil Registry where the
marriage was registered, in the Civil Registry of the place
where the Family Court is situated, and in the National
Census and Statistics Office. He shall report to the court
compliance with this requirement within thirty days iron
receipt of the copy of the Decree.
(b) Publication of decree.-- In case service of summons was
made by publication, the parties shall cause the publication
of the Decree once in a newspaper of general circulation.
(c) Best evidence.-The registered Decree shall be the best
evidence to prove the legal separation of the parties and
shall serve as notice to third persons concerning the
properties of petitioner and respondent.
Section 21. Effect of death of a party; duty of the Family
Court or Appellate Court. - (a) In case a party dies at any
stage of me proceedings before the entry of judgment, the
court shall order the case closed and terminated without
prejudice to the settlement of estate proper proceedings in
the regular courts.
(b) If the party dies after the entry of judgment, the same
shall be binding upon the parties and their successors in
interest in the settlement of the estate in the regular courts.
Section 22. Petition for revocation of donations. - (a) Within
five (5) years from the date the decision granting the petition
for legal separation has become final, the innocent spouse
may file a petition under oath the same proceeding for legal
separation to revoke the donations in favor of the offending
spouse.
(b)The revocation of the donations shall be recorded in the
Register of Deeds of Deeds in the places where the
properties are located.
(c)Alienations, liens, and encumbrances registered in good
faith. before the recording of the petition for revocation in
the registries of property shall be respected.
(d)After the issuance of the Decree of Legal Separation, the
innocent spouse may revoke the designation of the
offending spouse as a beneficiary in any insurance policy
even if such designation be stipulated as irrevocable. The
revocation or change shall take effect upon written
notification thereof to the insurer.
Section 23. Decree of Reconciliation. - (a) If the spouses
had reconciled, a joint manifestation under oath, duly
signed by the spouses, may be filed in the same proceeding
for legal separation.
(b) If the reconciliation occurred while the proceeding for
legal separation is pending, the court shall immediately
issue an order terminating the proceeding.
(c) If the reconciliation occurred after the rendition of the
judgment granting the petition for legal separation but
before the issuance of the Decree, the spouses shall
express in their manifestation whether or not they agree to
revive the former regime of their property relations or
choose a new regime.
The court shall immediately issue a Decree of
Reconciliation declaring that the legal separation
proceeding is set aside and specifying the regime of
property relations under which the spouses shall
be covered.
(d) If the spouses reconciled after the issuance of
the Decree, the court, upon proper motion, shall
issue a decree of reconciliation declaring therein
that the Decree is set aside but the separation of
property and any forfeiture of the share of the
guilty spouse already effected subsists, unless the
spouses have agreed to revive their former regime
of property relations or adopt a new regime.
(e) In case of paragraphs (b), (c), and (d). if the
reconciled spouses choose to adopt a regime of
property relations different from that which they
had prior to the filing of the petition for legal
separation, the spouses shall comply with Section
24 hereof.
(f) The decree of reconciliation shall be recorded in
the Civil Registries where the marriage and the
Decree had been registered.
Section 24. Revival of property regime or adoption
of another. -
(a) In case of reconciliation under Section 23,
paragraph (c) above, the parties shall file a verified
motion for revival of regime of property relations or
the adoption of another regime of property
relations in the same proceeding for legal
separation attaching to said motion their
agreement for the approval of the court.
(b) The agreement which shall be verified shall
specify the following:
(1) The properties to be contributed to the restored
or new regime;
(2) Those to be retained as separate properties of
each spouse; and
(3) The names of all their known creditors, their
addresses, and the amounts owing to each.
(c) The creditors shall be furnished with copies of the
motion and the agreement.
(d) The court shall require the spouses to cause the
publication of their verified motion for two consecutive
weeks in a newspaper of general circulation.
(e) After due hearing, and the court decides to grant the
motion, it shall issue an order directing the parties to record
the order in the proper registries of property within thirty
days from receipt of a copy of the order and submit proof of
compliance within the same period.
Section 25. Effectivity. - This Rule shall take effect on
March 15,2003 following its publication in a newspaper of
general circulation not later than March 7, 2003.
Art. 58. An action for legal separation shall in no case be
tried before six months shall have elapsed since the filing of
the petition. (103)
Art. 59. No legal separation may be decreed unless the
Court has taken steps toward the reconciliation of the
spouses and is fully satisfied, despite such efforts, that
reconciliation is highly improbable. (n)
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. (101a)
Art. 61. After the filing of the petition for legal separation, the
spouses shall be entitled to live separately from each other.
The court, in the absence of a written agreement between
the spouses, shall designate either of them or a third person
to administer the absolute community or conjugal
partnership property. The administrator appointed by the
court shall have the same powers and duties as those of a
guardian under the Rules of Court. (104a)
Art. 62. During the pendency of the action for legal
separation, the provisions of Article 49 shall likewise apply
to the support of the spouses and the custody and support
of the common children. (105a)

G.R. No. L-53880 March 17, 1994
ENRICO L. PACETE, CLARITA DE LA CONCEPCION,
EMELDA C. PACETE, EVELINA C. PACETE and
EDUARDO C. PACETE, petitioners,
vs.
HON. GLICERIO V. CARRIAGA, JR. and CONCEPCION
(CONCHITA) ALANIS PACETE, respondents.
Juan G. Sibug and Rodolfo B. Quiachon for petitioners.
Julio F. Andres, Jr. for private respondent.
VITUG, J.:
The issue in this petition for certiorari is whether or not the
Court of First Instance (now Regional Trial Court) of
Cotabato, Branch I, in Cotabato City, gravely abused its
discretion in denying petitioners' motion for extension of
time to file their answer in Civil Case No. 2518,
in declaring petitioners in default and in rendering its
decision of 17 March 1980 which, among other things,
decreed the legal separation of petitioner Enrico L. Pacete
and private respondent Concepcion Alanis and held to be
null and void ab initio the marriage of Enrico L. Pacete to
Clarita de la Concepcion.
On 29 October 1979, Concepcion Alanis filed with the court
below a complaint for the declaration of nullity of the
marriage between her erstwhile husband Enrico L. Pacete
and one Clarita de la Concepcion, as well as for legal
separation (between Alanis and Pacete), accounting and
separation of property. In her complaint, she averred that
she was married to Pacete on 30 April 1938 before the
Justice of the Peace of Cotabato, Cotabato; that they had a
child named Consuelo who was born on 11 March 1943;
that Pacete subsequently contracted (in 1948) a second
marriage with Clarita de la Concepcion in Kidapawan, North
Cotabato; that she learned of such marriage only on 01
August 1979; that during her marriage to Pacete, the latter
acquired vast property consisting of large tracts of land,
fishponds and several motor vehicles; that he fraudulently
placed the several pieces of property either in his (Conchita) Alanis Pacete and the herein defendants, Enrico
name and Clarita or in the names of his children L. Pacete, in accordance with the Philippine laws and with
with Clarita and other "dummies;" that Pacete consequences, as provided for by our laws;
ignored overtures for an amicable settlement; and
that reconciliation between her and Pacete was 2. That the following properties are hereby declared as the
impossible since he evidently preferred to continue conjugal properties of the partnership of the plaintiff,
living with Clarita. Concepcion (Conchita) Alanis Pacete and the defendant,
Enrico L. Pacete, half and half, to wit:
The defendants were each served with summons
on 15 November 1979. They filed a motion for an 1. The parcel of land covered by TCT No. V-815 which is a
extension of twenty (20) days from 30 November parcel of land situated in the barrio of Langcong,
1979 within which to file an answer. The court Municipality of Matanog (previously of Parang), province of
granted the motion. On 18 December 1979, Maguindanao (previously of Cotabato province) with an
appearing through a new counsel, the defendants area of 45,265 square meters registered in the name of
filed a second motion for an extension of another Enrico Pacete, Filipino, of legal age, married to Conchita
thirty (30) days from 20 December 1979. On 07 Alanis as shown in Exhibits "B" and "B-1" for the plaintiff.
January 1980, the lower court granted the motion
but only for twenty (20) days to be counted from 20
2. A parcel of land covered by Transfer Certificate of Title
December 1979 or until 09 January 1980. The
No. T-20442, with an area of 538 square meters and
Order of the court was mailed to defendants'
covered by Tax Declaration No. 2650 (74) in the name of
counsel on 11 January 1980. Likely still unaware
Enrico Pacete, situated in the Poblacion of Kidapawan,
of the court order, the defendants, on 05 February
North Cotabato, together with all its improvements, which
1980, again filed another motion (dated 18
parcel of land, as shown by Exhibits "K-1" was acquired by
January 1980) for an extension of "fifteen (15)
way of absolute deed of sale executed by Amrosio Mondog
days counted from the expiration of the 30-day
on January 14, 1965.
period previously sought" within which to file an
answer. The following day, or on 06 February 1980,
3. A parcel of land covered by Transfer Certificate of Title
the court denied this last motion on the ground that
No. T-20424 and covered by Tax Declaration No. 803 (74),
it was "filed after the original period given . . . as
with an area of 5.1670 hectares, more or less, as shown by
first extension had expired."1
Exhibit "R", the same was registered in the name of Enrico
Pacete and the same was acquired by Enrico Pacete last
The plaintiff thereupon filed a motion to declare the
February 17, 1967 from Ambag Ampoy, as shown by
defendants in default, which the court forthwith
Exhibit "R-1", situated at Musan, Kidapawan, North
granted. The plaintiff was then directed to present
Cotabato.
her evidence.2 The court received plaintiff's
evidence during the hearings held on 15, 20, 21
4. A parcel of land situated at Lanao, Kidapawan, North
and 22 February 1980.
Cotabato, with an area of 5.0567 hectares, covered by Tax
Declaration No. 4332 (74), as shown by Exhibit "S", and
On 17 March 1980, the court3 promulgated the
registered in the name of Enrico Pacete.
herein questioned decision, disposing of the case,
thus —
5. A parcel of land covered by Transfer Certificate of Title
No. T-9750, situated at Lika, Mlang, North Cotabato, with an
WHEREFORE, order is hereby issued ordering:
area of 4.9841 hectares and the same is covered by Tax
Declaration No. 803 (74) and registered in the name of
1. The issuance of a Decree of Legal Separation of Enrico Pacete and which land was acquired by Enrico
the marriage between, the plaintiff, Concepcion
Pacete from Salvador Pacete on September 24, 1962, as
shown by Exhibit "Q-1".
6. A parcel of land covered by Transfer Certificate of Title
No. T-9944, with an area of 9.9566 and also covered by Tax
Declaration No. 8608 (74) and registered in the name of the
defendant Enrico L. Pacete which Enrico L. Pacete
acquired from Sancho Balingcos last October 22, 1962, as
shown by Exhibit "L-1" and which parcel of land is situated
at (Kialab), Kiab, Matalam, North Cotabato.
7. A parcel of land covered by Transfer Certificate of Title
No. T-9227, situated at Kiab, Matalam, North Cotabato, with
an area of 12.04339 hectares, more or less, and also
covered by Tax Declaration No. 8607 (74) both in the name
of the defendant Enrico L. Pacete which he acquired last
October 15, 1962 from Minda Bernardino, as shown by
Exhibit "M-1".
8. A parcel of land covered by Transfer Certificate of Title
No. T-9228, situated at Kiab, Matalam, North Cotabato, with
an area of 10.8908 hectares, registered in the name of
Enrico Pacete and also covered by Tax Declaration No.
5781 (74) in the name of Enrico Pacete and which parcel of
land he acquired last September 25, 1962 from Conchita
dela Torre, as shown by Exhibit "P-1".
9. A parcel of land covered by Transfer Certificate of Title
No. T-10301, situated at Linao, Matalam, North Cotabato,
with an area of 7.2547 hectares, registered in the name of
Enrico Pacete and also covered by Tax Declaration No.
8716 (74) also in the name of Enrico Pacete which Enrico
Pacete acquired from Agustin Bijo last July 16, 1963, as
shown by Exhibit "N-1".
10. A parcel of land covered by Transfer Certificate of Title
No. 12728 in the name of the defendant, Enrico L. Pacete,
with an area of 10.9006 hectares, situated at Linao,
Matalam, North Cotabato and is also covered by Tax
Declaration No. 5745 (74) in the name of Enrico Pacete, as
shown on Exhibit "O" and which Enrico Pacete acquired last
December 31, 1963 from Eliseo Pugni, as shown on Exhibit
"0-1".
3. Ordering the Cancellation of Original Certificate of Title
No. P-34243 covering Lot No. 1066, issued in the name of
Evelina Pacete, situated at Kiab, Matalam, North
Cotabato, and ordering the registration of the
same in the joint name of Concepcion (Conchita)
Alanis Pacete and Enrico L. Pacete as their
conjugal property, with address on the part of
Concepcion (Conchita) Alanis Pacete at Parang,
Maguindanao and on the part of Enrico L. Pacete
at Kidapawan, North Cotabato.
4. Ordering likewise the cancellation of Original
Certificate of Title No. V-20101, covering Lot No.
77, in the name of Eduardo C. Pacete, situated at
New Lawaan, Mlang, North Cotabato, and the
issuance of a new Transfer Certificate of Title in
the joint name of (half and half) Concepcion
(Conchita) Alanis Pacete and Enrico L. Pacete.
5. Ordering likewise the cancellation of Original
Certificate of Title No. P-29890, covering Lot 1068,
situated at Kiab, Matalam, North Cotabato, with an
area of 12.1031 hectares, in the name of Emelda
C. Pacete and the issuance of a new Transfer
Certificate of Title in the joint name (half and half)
of Concepcion (Conchita) Alanis Pacete and
Enrico L. Pacete; and declaring that the fishpond
situated at Barrio Tumanan, Bislig, Surigao Del
Sur, with an area of 48 hectares and covered by
Fishpond Lease Agreement of Emelda C. Pacete,
dated July 29, 1977 be cancelled and in lieu
thereof, the joint name of Concepcion (Conchita)
Alanis Pacete and her husband, Enrico L. Pacete,
be registered as their joint property, including the
50 hectares fishpond situated in the same place,
Barrio Timanan, Bislig, Surigao del Sur.
6. Ordering the following motor vehicles to be the
joint properties of the conjugal partnership of
Concepcion (Conchita) Alanis Pacete and Enrico L.
Pacete, viz:
a. Motor vehicle with Plate No. T-RG-783; Make,
Dodge; Motor No. T137-20561; Chassis No.
83920393, and Type, Mcarrier;
b. Motor vehicle with Plate No. T-RG-784; Make, Dodge;
Motor No. T214-229547; Chassis No. 10D-1302-C; and
Type, Mcarrier;
c. Motor vehicle with Plate No. J-PR-818; Make, Ford;
Motor No. GRW-116188; Chassis No.
HOCC-GPW-1161-88-C; Type, Jeep;
d. Motor vehicle with Plate No. TH-5J-583; Make, Ford:
Motor No. F70MU5-11111; Chassis No.
HOCC-GPW-1161188-G; Type, Stake;
e. Motor vehicle with Plate No. TH-5J-584; Make, Hino;
Motor No. ED300-45758; Chassis No. KB222-22044; Type,
Stake; and
f. Motor vehicle with Plate No. TH-5J-585; Make, Ford:
Motor No. LTC-780-Dv; Chassis No. 10F-13582-K; Type,
Stake.
7. Ordering the defendant Enrico L. Pacete to pay the
plaintiff the sum of P46,950.00 which is the share of the
plaintiff in the unaccounted income of the ricemill and corn
sheller for three years from 1971 to 1973.
8. Ordering the defendant, Enrico L. Pacete, to reimburse
the plaintiff the monetary equipment of 30% of whether the
plaintiff has recovered as attorney's fees;
9. Declaring the subsequent marriage between defendant
Enrico L. Pacete and Clarita de la Concepcion to be void ab
initio; and
10. Ordering the defendants to pay the costs of this suit. 4
Hence, the instant special civil action of certiorari.
Under ordinary circumstances, the petition would have
outrightly been dismissed, for, as also pointed out by private
respondents, the proper remedy of petitioners should have
instead been either to appeal from the judgment by default
or to file a petition for relief from judgment. 5 This rule,
however, is not inflexible; a petition for certiorari is allowed
when the default order is improperly declared, or even when
it is properly declared, where grave abuse of discretion
attended such declaration.6 In these exceptional instances,
the special civil action of certiorari to declare the nullity of a
judgment by default is available.7 In the case at bench, the
default order unquestionably is not legally sanctioned. The
Civil Code provides:
Art. 101. No decree of legal separation shall be
promulgated upon a stipulation of facts or by confession of
judgment.
In case of non-appearance of the defendant, the court shall
order the prosecuting attorney to inquire whether or not a
collusion between the parties exists. If there is no collusion,
the prosecuting attorney shall intervene for the State in
order to take care that the evidence for the plaintiff is not
fabricated.
The provision has been taken from Article 30 of the
California Civil Code,8 and it is, in substance, reproduced in
Article 60 of the Family Code.9
Article 101 reflects the public policy on marriages, and it
should easily explain the mandatory tenor of the law.
In Brown v. Yambao, 10 the Court has observed:
The policy of Article 101 of the new Civil Code, calling for
the intervention of the state attorneys in case of
uncontested proceedings for legal separation (and of
annulment of marriages, under Article 88), is to emphasize
that marriage is more than a mere contract; that it is a social
institution in which the state is vitally interested, so that its
continuation or interruption can not be made to depend
upon the parties themselves (Civil Code, Article 52; Adong
vs. Cheong Gee, 43 Phil. 43; Ramirez v. Gmur, 42 Phil. 855;
Goitia v. Campos, 35 Phil. 252). It is consonant with this
policy that the inquiry by the Fiscal should be allowed to
focus upon any relevant matter that may indicate whether
the proceedings for separation or annulment are fully
justified or not.
Article 103 of the Civil Code, now Article 58 of the Family
Code, further mandates that an action for legal separation
must "in no case be tried before six months shall have
elapsed since the filing of the petition," obviously in order to
provide the parties a "cooling-off" period. In this interim, the
court should take steps toward getting the parties
to reconcile.
The significance of the above substantive
provisions of the law is further underscored by the
inclusion of the following provision in Rule 18 of
the Rules of Court:
Sec. 6. No defaults in actions for annulments of
marriage or for legal separation. — If the
defendant in an action for annulment of marriage
or for legal separation fails to answer, the court
shall order the prosecuting attorney to investigate
whether or not a collusion between the parties
exists, and if there is no collusion, to intervene for
the State in order to see to it that the evidence
submitted is not fabricated.
The special prescriptions on actions that can put
the integrity of marriage to possible jeopardy are
impelled by no less than the State's interest in the
marriage relation and its avowed intention not to
leave the matter within the exclusive domain and
the vagaries of the parties to alone dictate.
It is clear that the petitioner did, in fact, specifically
pray for legal separation. 11 That other remedies,
whether principal or incidental, have likewise been
sought in the same action cannot dispense, nor
excuse compliance, with any of the statutory
requirements aforequoted.
WHEREFORE, the petition for certiorari is hereby
GRANTED and the proceedings below, including
the Decision of 17 March 1980 appealed from, are
NULLIFIED and SET ASIDE. No costs.
SO ORDERED.
G.R. No. L-34132 July 29, 1972
LUCY SOMOSA-RAMOS, petitioner,
vs.
THE HONORABLE CIPRIANO VAMENTA, JR.,
Presiding Judge of the Court of First Instance
of Negros Oriental and CLEMEN G.
RAMOS, respondents.
T. R. Reyes & Associates for petitioner.
Soleto J. Erames for respondents.
FERNANDO, J.:p
The question raised in this petition for certiorari is whether
or not Article 103 of the Civil Code prohibiting the hearing of
an action for legal separation before the lapse of six months
from the filing of the petition, would likewise preclude the
court from acting on a motion for preliminary mandatory
injunction applied for as an ancillary remedy to such a suit.
Respondent Cipriano Vamenta, Jr., of the Court of First
Instance of Negros Oriental, answered the question in the
affirmative, in view of the absolute tenor of such Civil Code
provision, which reads thus: "An action for legal separation
shall in no case be tried before six months shall have
elapsed since the filing of the petition." He therefore ordered
the suspension, upon the plea of the other respondent the
husband Clemente G. Ramos, of the hearing on a motion
for a writ of preliminary mandatory injunction filed by
petitioner at the same time the suit for legal separation was
instituted. Petitioner, Lucy Somosa-Ramos, the wife who
brought the action for legal separation would dispute such a
ruling. Hence, this certiorari proceeding. As will be shown
later there is justification for such a move on the part of
petitioner. The respondent Judge ought to have acted
differently. The plea for a writ of certiorari must be granted.
The pleadings show that on June 18, 1971, petitioner filed
Civil Case No. 5274 in the sala of respondent Judge against
respondent Clemente Ramos for legal separation, on
concubinage on the respondent's part and an attempt by
him against her life being alleged. She likewise sought the
issuance of a writ of preliminary mandatory injunction for the
return to her of what she claimed to be her paraphernal and
exclusive property, then under the administration and
management of respondent Clemente Ramos. There was
an opposition to the hearing of such a motion, dated July 3,
1971, based on Article 103 of the Civil Code. It was further
manifested by him in a pleading dated July 16, 1971, that if
the motion asking for preliminary mandatory injunction were
heard, the prospect of the reconciliation of the spouses
would become even more dim. Respondent Judge ordered
the parties to submit their respective memoranda on the
matter. Then on September 3, 1971, petitioner received an
order dated August 4, 1971 of respondent Judge granting
the motion of respondent Ramos to suspend the hearing of
the petition for a writ of mandatory preliminary injunction.
That is the order complained of in this petition for certiorari.
Respondents were required to answer according to our
resolution of October 5, 1971. The answer was filed
December 2 of that year. Then on January 12, 1972 came a
manifestation from parties in the case submitting the matter
without further arguments.
After a careful consideration of the legal question presented,
it is the holding of this Court that Article 103 the Civil Code
is not an absolute bar to the hearing motion for preliminary
injunction prior to the expiration of the six-month period.
1. It is understandable why there should be a period during
which the court is precluded from acting. Ordinarily of
course, no such delay is permissible. Justice to parties
would not thereby be served. The sooner the dispute is
resolved, the better for all concerned. A suit for legal
separation, however, is something else again. It involves a
relationship on which the law for the best reasons would
attach the quality of permanence. That there are times
when domestic felicity is much less than it ought to be is not
of course to be denied. Grievances, whether fancied or real,
may be entertained by one or both of the spouses. There
may be constant bickering. The loss affection on the part of
one or both may be discernible. Nonetheless, it will not
serve public interest, much less the welfare of the husband
or the wife, to allow them to go their respective ways. Where
there are offspring, the reason for maintaining the conjugal
union is even more imperative. It is a mark of realism of the
law that for certain cases, adultery on the part of the wife
and concubinage on the part of the husband, or an attempt
of one spouse against the life of the other,1 it recognizes,
albeit reluctantly, that the couple is better off apart. A suit for
legal separation lies. Even then, the hope that the parties
may settle their differences is not all together abandoned.
The healing balm of time may aid in the process. Hopefully,
the guilty parties may mend his or her ways, and the
offended party may in turn exhibit magnanimity. Hence, the
interposition of a six-month period before an action
for legal separation is to be tried.
The court where the action is pending according to
Article 103 is to remain passive. It must let the
parties alone in the meanwhile. It is precluded from
hearing the suit. There is then some plausibility for
the view of the lower court that an ancillary motion
such as one for preliminary mandatory injunction is
not to be acted on. If it were otherwise, there would
be a failure to abide by the literal language of such
codal provision. That the law, however, remains
cognizant of the need in certain cases for judicial
power to assert itself is discernible from what is set
forth in the following article. It reads thus: "After the
filing of the petition for legal separation, the spouse
shall be entitled to live separately from each other
and manage their respective property. The
husband shall continue to manage the conjugal
partnership property but if the court deems it
proper, it may appoint another to manage said
property, in which case the administrator shall
have the same rights and duties as a guardian and
shall not be allowed to dispose of the income or of
the capital except in accordance with the orders of
the court."2 There would appear to be then a
recognition that the question of management of
their respective property need not be left
unresolved even during such six-month period. An
administrator may even be appointed for the
management of the property of the conjugal
partnership. The absolute limitation from which the
court suffers under the preceding article is thereby
eased. The parties may in the meanwhile be heard.
There is justification then for the petitioner's
insistence that her motion for preliminary
mandatory injunction should not be ignored by the
lower court. There is all the more reason for this
response from respondent Judge, considering that
the husband whom she accused of concubinage
and an attempt against her life would in the
meanwhile continue in the management of what
she claimed to be her paraphernal property, an
assertion that was not specifically denied by him.
What was held by this Court in Araneta v.
Concepcion,3 thus possesses relevance: "It is
conceded that the period of six months fixed
therein Article 103 (Civil Code) is evidently intended as a
cooling off period to make possible a reconciliation between
the spouses. The recital of their grievances against each
other in court may only fan their already inflamed passions
against one another, and the lawmaker has imposed the
period to give them opportunity for dispassionate reflection.
But this practical expedient, necessary to carry out
legislative policy, does not have the effect of overriding
other provisions such as the determination of the custody of
the children and alimony and support pendente lite
according to the circumstance ... The law expressly enjoins
that these should be determined by the court according to
the circumstances. If these are ignored or the courts close
their eyes to actual facts, rank injustice may be
caused."4 At any rate, from the time of the issuance of the
order complained of on August 4, 1971, more than six
months certainly had elapsed. Thus there can be no more
impediment for the lower court acting on the motion of
petitioner for the issuance of a writ of preliminary mandatory
injunction.
WHEREFORE, the plea of petitioner for a writ of certiorari is
granted, and the order of respondent Court of August 4,
1971, suspending the hearing on the petition for a writ of
preliminary mandatory injunction is set aside. Respondent
Judge is directed to proceed without delay to hear the
motion for preliminary mandatory injunction. Costs against
respondent Clemente G. Ramos.
G.R. No. 79284 November 27, 1987
FROILAN C. GANDIONCO, petitioner,
vs.
HON. SENEN C. PEÑARANDA, as Presiding Judge of
the Regional Trial Court of Misamis Oriental, Branch 18,
Cagayan de Oro City, and TERESITA S.
GANDIONCO, respondents.
PADILLA, J.:
A special civil action for certiorari, with application for
injunction, to annul (1) the Order of the respondent Judge,
dated 10 December 1986, ordering petitioner to pay
support pendente lite to private respondent (his wife) and
their child, and (2) the Order of the same respondent Judge,
dated 5 August 1987, denying petitioner's motion to
suspend hearings in the action for legal separation filed
against him by private respondent as well as his motion to
inhibit respondent Judge from further hearing and trying the
case.
On 29 May 1986, private respondent, the legal wife of the
petitioner, filed with the Regional Trial Court of Misamis
Oriental, 10th Judicial District, Branch 18, in Cagayan de
Oro City, presided over by respondent Judge, a complaint
against petitioner for legal separation, on the ground of
concubinage, with a petition for support and payment of
damages. This case was docketed as Civil Case No. 10636.
On 13 October 1986, private respondent also filed with the
Municipal Trial Court, General Santos City, a complaint
against petitioner for concubinage, which was docketed on
23 October 1986 as Criminal Case No. 15437111. On 14
November 1986, application for the provisional remedy of
support pendente lite, pending a decision in the action for
legal separation, was filed by private respondent in the civil
case for legal separation. The respondent judge, as already
stated, on 10 December 1986, ordered The payment of
support pendente lite.
In this recourse, petitioner contends that the civil action for
legal separation and the incidents consequent thereto, such
as, application for support pendente lite, should be
suspended in view of the criminal case for concubinage filed
against him the private respondent. In support of his
contention, petitioner cites Art. III. Sec. 3 of the 1985 Rules
on Criminal Procedure, which states:
SEC. 3. Other Civil action arising from offenses.
— Whenever the offended party shall have instituted the
civil action to enforce the civil liability arising from the
offense. as contemplated in the first Section 1 hereof, the
following rules shall be observed:
(a) After a criminal action has been commenced the
pending civil action arising from the same offense shall be
suspended, in whatever stage it may be found, until final
judgment in the criminal proceeding has been rendered. . . .
The civil action for legal separation, grounded as it is on
concubinage, it is petitioner's position that such civil action
arises from, or is inextricably tied to the criminal the amendment under the 1985 Rules on Criminal
action for concubinage, so that all proceedings Procedure, a civil action for legal separation, based on
related to legal separation will have to be concubinage, may proceed ahead of, or simultaneously with,
suspended to await conviction or acquittal for a criminal action for concubinage, because said civil action
concubinage in the criminal case. Authority for this is not one "to enforce the civil liability arising from the
position is this Court's decision in the case offense" even if both the civil and criminal actions arise from
of Jerusalem vs. Hon. Roberto Zurbano. 1 or are related to the same offense. Such civil action is one
intended to obtain the right to live separately, with the legal
Petitioner's contention is not correct. consequences thereof, such as, the dissolution of the
conjugal partnership of gains, custody of offsprings, support,
and disqualification from inheriting from the innocent
In Jerusalem, the Court's statement to the effect
spouse, among others. As correctly pointed out by the
that suspension of an action for legal separation
respondent Judge in his Order dated 5 August 1987:
would be proper if an allegation of concubinage is
made therein, relied solely on Sec. 1 of Rule 107
of the then provisions of the Rules of Court on The unreported case of JERUSALEM vs. Hon. Roberto
criminal procedure, to wit: Zurbano, Judge of CFI of Antique, et al., L-11935, April 24,
1959 (105 Phil. 1277) is not controlling. It applied paragraph
C of Sec. 1, of then Rule 107 of the Rules of Court, which
Sec. 1. Rules governing civil actions arising from
reads:
offenses.-Except as otherwise provided by law, the
following rules shall he observed:
After a criminal action has been commenced, no civil action
arising from the same offense can be prosecuted and the
(a) When a criminal action is instituted, the civil
same shall be suspended, in whatever stage it may be
action for recovery of civil liability arising from the
found, until final judgment in the criminal proceeding has
offense charged is impliedly instituted with the
been rendered. (Emphasis supplied)
criminal action, unless the offended party
expressly waives the civil action or reserves his
The governing rule is now Sec. 3, Rule 111, 1985 Rules on
right to institute it separately;
Criminal Procedure which refers to "civil actions to enforce
the civil liability arising from the offense" as contemplated in
(b) Criminal and civil actions arising from the same
the first paragraph of Section 1 of Rule 111-which is a civil
offense may be instituted separately, but after the
action "for recovery of civil liability arising from the offense
criminal action has been commenced the civil
charged." Sec. 1, Rule 111, (1985) is specific that it refers to
action can not be instituted until final judgment has
civil action for the recovery of civil liability arising from the
been rendered in the criminal action;
offense charged. Whereas, the old Sec. 1 (c), Rule 107
simply referred to "Civil action arising from the offense."
(c) After a criminal action has been commenced,
no civil action arising from the same offense can
As earlier noted this action for legal separation is not to
be prosecuted and the same shall be suspended
recover civil liability, in the main, but is aimed at the
in whatever stage it may be found until final
conjugal rights of the spouses and their relations to each
judgment in the criminal proceeding has been
other, within the contemplation of Articles 7 to 108, of the
rendered ... (Emphasis supplied)
Civil Code."2
The provisions last quoted did not clearly state, as
Petitioner also argues that his conviction for concubinage
the 1985 Rules do, that the civil action to be
will have to be first secured before the action for legal
suspended, with or upon the filing of a criminal
separation can prosper or succeed, as the basis of the
action, is one which is "to enforce the civil liability
arising from the offense". In other words, in view of
action for legal separation is his alleged offense of
concubinage.
Petitioner's assumption is erroneous.
A decree of legal separation, on the ground of concubinage,
may be issued upon proof by preponderance of evidence in
the action for legal separation. 3 No criminal proceeding or
conviction is necessary. To this end, the doctrine
in Francisco vs. Tayao 4 has been modified, as that case
was decided under Act. No. 2710, when absolute divorce
was then allowed and had for its grounds the same grounds
for legal separation under the New Civil Code, with the
requirement, under such former law, that the guilt of
defendant spouses had to be established by final judgment
in a criminal action. That requirement has not been
reproduced or adopted by the framers of the present Civil
Code, and the omission has been uniformly accepted as a
modification of the stringent rule in Francisco v. Tayao.5
Petitioner's attempt to resist payment of support pendente
lite to his wife must also fail, as we find no proof of grave
abuse of discretion on the part of the respondent Judge in
ordering the same. Support pendente lite, as a remedy, can
be availed of in an action for legal separation, and granted
at the discretion of the judge. 6 If petitioner finds the amount
of support pendente lite ordered as too onerous, he can
always file a motion to modify or reduce the same. 7
Petitioner lastly seeks to have the respondent Judge
disqualified from hearing the case, as the grant of
support pendente lite and the denial of the motion to
suspend hearings in the case, are taken by the petitioner as
a disregard of applicable laws and existing doctrines,
thereby showing the respondent Judge's alleged manifest
partiality to private respondent.
Petitioner's contention is without merit. Divergence of
opinions between a judge hearing a case and a party's
counsel, as to applicable laws and jurisprudence, is not a
sufficient ground to disqualify the judge from hearing the
case, on the ground of bias and manifest partiality. This is
more so, in this case, where we find the judge's disposition
of petitioner's motions to be sound and well-taken.
WHEREFORE, the instant petition is hereby
DISMISSED. Costs against petitioner.
SO ORDERED.
G.R. No. 106169 February 14, 1994
SAMSON T. SABALONES, petitioner,
vs.
THE COURT OF APPEALS and REMEDIOS
GAVIOLA-SABALONES, respondents.
Leven S. Puno for petitioner.
Benigno M. Puno for private respondent.
CRUZ, J.:
The subject of this petition is the preliminary
injunction issued by the respondent court pending
resolution of a case on appeal. We deal only with
this matter and not the merits of the case.
As a member of our diplomatic service assigned to
different countries during his successive tours of
duties, petitioner Samson T. Sabalones left to his
wife, herein respondent Remedios
Gaviola-Sabalones, the administration of some of
their conjugal, properties for fifteen years.
Sabalones retired as ambassador in 1985 and
came back to the Philippines but not to his wife
and their children. Four years later, he filed an
action for judicial authorization to sell a building
and lot located at
#17 Eisenhower St., Greenhills, San Juan, Metro
Manila, belonging to the conjugal partnership. He
claimed that he was sixty-eight years old, very sick
and living alone without any income, and that his
share of the proceeds of the sale to defray the
prohibitive cost of his hospitalization and medical
treatment.
In her answer, the private respondent opposed the
authorization and filed a counterclaim for legal separation.
She alleged that the house in Greenhills was being
occupied by her and their six children and that they were
depending for their support on the rentals from another
conjugal property, a building and lot in Forbes Park which
was on lease to Nobumichi Izumi. She also informed the
court that despite her husband's retirement, he had not
returned to his legitimate family and was instead
maintaining a separate residence in Don Antonio Heights,
Fairview, Quezon City, with Thelma Cumareng and their
three children.
In her prayer, she asked the court to grant the decree of
legal separation and order the liquidation of their conjugal
properties, with forfeiture of her husband's share therein
because of his adultery. She also prayed that it enjoin the
petitioner and his agents from a) disturbing the occupants of
the Forbes Park property and b) disposing of or
encumbering any of the conjugal properties.
After trial, Judge Mariano M. Umali, found that the petitioner
had indeed contracted a bigamous marriage on October 5,
1981, with Thelma Cumareng, to whom he had returned
upon his retirement in 1985 at a separate residence. The
court thus decreed the legal separation of the spouses and
the forfeiture of the petitioner's share in the conjugal
properties, declaring as well that he was not entitled to
support from his respondent wife.1
This decision was appealed to the respondent
court. Pendente lite, the respondent wife filed a motion for
the issuance of a writ of preliminary injunction to enjoin the
petitioner from interfering with the administration of their
properties in Greenhills and Forbes Park. She alleged inter
alia that he had harassed the tenant of the Forbes Park
property by informing him that his lease would not be
renewed. She also complained that the petitioner had
disposed of one of their valuable conjugal properties in the
United States in favor of his paramour, to the prejudice of
his legitimate wife and children.
The petitioner opposed this motion and filed his own motion
to prevent his wife from entering into a new contract of lease
over the Forbes Park property with its present tenant, or
with future tenants, without his consent.
After hearing, the Court of Appeals, in an order dated April 7,
1992, granted the preliminary injunction prayed for by his
wife.2
The petitioner now assails this order, arguing that since the
law provides for a joint administration of the conjugal
properties by the husband and wife, no injunctive relief can
be issued against one or the other because no right will be
violated. In support of this contention, he cites Art. 124 of
the Family Code, reading as follows:
Art. 124. The administration and enjoyment of the conjugal
partnership property shall belong to both spouses jointly. In
case of disagreement, the husband's decision shall prevail,
subject to recourse to the court by the wife for proper
remedy, which must be availed of within five years from the
date of the contract implementing such decision.
In the event that one spouse is incapacitated or otherwise
unable to participate in the administration of the conjugal
properties, the other spouse may assume sole powers of
the administration. These powers do not include disposition
or encumbrance without authority of the court or the written
consent of the other spouse. In the absence of such
authority or consent, the disposition or encumbrance shall
be void. However, the transaction shall be construed and
the third person, and may be perfected as a binding
contract upon the acceptance by the other spouse or the
authorization by the court before the offer is withdrawn by
either or both offerors.
He further notes that the respondent court failed to appoint
an administrator of the conjugal assets as mandated by Art.
61 of the Code, thus:
Art. 61 After the filing of the petition for legal separation, the
spouses shall be entitled to live separately from each other.
The court, in the absence of a written agreement between
the spouses, shall designate either of them or a third person
to administer the absolute community or conjugal
partnership property. The administrator appointed by the
court shall have the same powers and duties as those of a
guardian under the Rules of Court.
The Court has carefully considered the issues and
the arguments of the parties and finds that the
petition has no merit.
We agree with the respondent court that pending
the appointment of an administrator over the whole
mass of conjugal assets, the respondent court was
justified in allowing the wife to continue with her
administration. It was also correct, taking into
account the evidence adduced at the hearing, in
enjoining the petitioner from interfering with his
wife's administration pending resolution of the
appeal.
The law does indeed grant to the spouses joint
administration over the conjugal properties as
clearly provided in the above-cited Article 124 of
the Family Code. However, Article 61, also above
quoted, states that after a petition for legal
separation has been filed, the trial court shall, in
the absence of a written agreement between the
couple, appoint either one of the spouses or a third
person to act as the administrator.
While it is true that no formal designation of the
administrator has been made, such designation
was implicit in the decision of the trial court
denying the petitioner any share in the conjugal
properties (and thus also disqualifying him as
administrator thereof). That designation was in
effect approved by the Court of Appeals when it
issued in favor of the respondent wife the
preliminary injunction now under challenge.
The primary purpose of the provisional remedy of
injunction is to preserve the status quo of the
things subject of the action or the relations
between the parties and thus protect the rights of
the plaintiff respecting these matters during the
pendency of the suit. Otherwise, the defendant
may, before final judgment, do or continue doing
the act which the plaintiff asks the court to restrain
and thus make ineffectual the final judgment that
may be rendered afterwards in favor of the
plaintiff.3
As observed by Francisco, "Injunction is primarily a
preventive remedy. Its province is to afford relief against
future acts which are against equity and good conscience
and to keep and preserve the thing in the status quo, rather
than to remedy what is past or to punish for wrongful acts
already committed. It may issue to prevent future wrongs
although no right has yet been violated."4
The Court notes that the wife has been administering the
subject properties for almost nineteen years now,
apparently without complaint on the part of the petitioner.
He has not alleged, much less shown, that her
administration has caused prejudice to the conjugal
partnership. What he merely suggests is that the lease of
the Forbes Park property could be renewed on better terms,
or he should at least be given his share of the rentals.
In her motion for the issuance of a preliminary injunction,
the respondent wife alleged that the petitioner's harassment
of their tenant at Forbes Park
would jeopardize the lease and deprive her and her children
of the income therefrom on which they depend for their
subsistence. She also testified the numerous . . . including
various dollar accounts, two houses in Quezon City and
Cebu City, and a Mercedes Benz. The private respondent
also complained that on June 10, 1991, the petitioner
executed a quitclaim over their conjugal property in Apple
Valley, San Bernardino, California, U.S.A., in favor of
Thelma Cumareng, to improve his paramour's luxurious
lifestyle to the prejudice of his legitimate family.
These allegations, none of which was refuted by the
husband, show that the injunction is necessary to protect
the interests of the private respondent and her children and
prevent the dissipation of the conjugal assets.
The twin requirements of a valid injunction are the existence
of a right and its actual or threatened violation.5 Regardless
of the outcome of the appeal, it cannot be denied that as the
petitioner's legitimate wife (and the complainant and injured
spouse in the action for legal separation), the private
respondent has a right to a share (if not the whole) of the
conjugal estate. There is also, in our view, enough evidence
to raise the apprehension that entrusting said estate to the
petitioner may result in its improvident disposition to the
detriment of his wife and children. We agree that inasmuch
as the trial court had earlier declared the forfeiture of the
petitioner's share in the conjugal properties, it would be
prudent not to allow him in the meantime to participate in its
management.
Let it be stressed that the injunction has not permanently
installed the respondent wife as the administrator of the
whole mass of conjugal assets. It has merely allowed her to
continue administering the properties in the meantime
without interference from the petitioner, pending the
express designation of the administrator in accordance with
Article 61 of the Family Code.
WHEREFORE, the petition is DENIED for lack of merit. It is
so ordered.
G.R. No. L-30977 January 31, 1972
CARMEN LAPUZ SY, represented by her substitute
MACARIO LAPUZ, petitioner-appellant, vs. EUFEMIO S.
EUFEMIO alias EUFEMIO SY UY, respondent-appellee.
Jose W. Diokno for petitioner-appellant.
D. G. Eufemio for respondent-appellee.
REYES J.B.L., J.:
Petition, filed after the effectivity of Republic Act 5440, for
review by certiorari of an order, dated 29 July 1969, of the
Juvenile and Domestic Relations Court of Manila, in its Civil
Case No. 20387, dismissing said case for legal separation
on the ground that the death of the therein plaintiff, Carmen
O. Lapuz Sy, which occurred during the pendency of the
case, abated the cause of action as well as the action itself.
The dismissal order was issued over the objection of
Macario Lapuz, the heir of the deceased plaintiff (and
petitioner herein) who sought to substitute the deceased
and to have the case prosecuted to final
judgment.chanroblesvirtualawlibrarychanrobles virtual law
library
On 18 August 1953, Carmen O. Lapuz Sy filed a petition for
legal separation against Eufemio S. Eufemio, alleging, in
the main, that they were married civilly on 21 September
1934 and canonically on 30 September 1934; that they had
lived together as husband and wife continuously
until 1943 when her husband abandoned her; that
they had no child; that they acquired properties
during their marriage; and that she discovered her
husband cohabiting with a Chinese woman named
Go Hiok at 1319 Sisa Street, Manila, on or about
March 1949. She prayed for the issuance of a
decree of legal separation, which, among others,
would order that the defendant Eufemio S.
Eufemio should be deprived of his share of the
conjugal partnership
profits.chanroblesvirtualawlibrarychanrobles virtual
law library
In his second amended answer to the petition,
herein respondent Eufemio S. Eufemio alleged
affirmative and special defenses, and, along with
several other claims involving money and other
properties, counter-claimed for the declaration of
nullity ab initio of his marriage with Carmen O.
Lapuz Sy, on the ground of his prior and subsisting
marriage, celebrated according to Chinese law
and customs, with one Go Hiok, alias Ngo
Hiok.chanroblesvirtualawlibrarychanrobles virtual
law library
Issues having been joined, trial proceeded and the
parties adduced their respective evidence. But
before the trial could be completed (the
respondent was already scheduled to present
surrebuttal evidence on 9 and 18 June 1969),
petitioner Carmen O. Lapuz Sy died in a vehicular
accident on 31 May 1969. Counsel for petitioner
duly notified the court of her
death.chanroblesvirtualawlibrarychanrobles virtual
law library
On 9 June 1969, respondent Eufemio moved to
dismiss the "petition for legal separation" 1on two
(2) grounds, namely: that the petition for legal
separation was filed beyond the one-year period
provided for in Article 102 of the Civil Code; and
that the death of Carmen abated the action for
legal
separation.chanroblesvirtualawlibrarychanrobles
virtual law library
On 26 June 1969, counsel for deceased petitioner moved to
substitute the deceased Carmen by her father, Macario
Lapuz. Counsel for Eufemio opposed the
motion.chanroblesvirtualawlibrarychanrobles virtual law
library
On 29 July 1969, the court issued the order under review,
dismissing the case. 2In the body of the order, the court
stated that the motion to dismiss and the motion for
substitution had to be resolved on the question of whether
or not the plaintiff's cause of action has survived, which the
court resolved in the negative. Petitioner's moved to
reconsider but the motion was denied on 15 September
1969.chanroblesvirtualawlibrarychanrobles virtual law
library
After first securing an extension of time to file a petition for
review of the order of dismissal issued by the juvenile and
domestic relations court, the petitioner filed the present
petition on 14 October 1969. The same was given due
course and answer thereto was filed by respondent, who
prayed for the affirmance of the said order. 3chanrobles
virtual law library
Although the defendant below, the herein respondent
Eufemio S. Eufemio, filed counterclaims, he did not pursue
them after the court below dismissed the case. He
acquiesced in the dismissal of said counterclaims by
praying for the affirmance of the order that dismissed not
only the petition for legal separation but also his
counterclaim to declare the Eufemio-Lapuz marriage to be
null and void ab initio.chanroblesvirtualawlibrarychanrobles
virtual law library
But petitioner Carmen O. Lapuz Sy (through her
self-assumed substitute - for the lower court did not act on
the motion for substitution) stated the principal issue to be
as follows:
When an action for legal separation is
converted by the counterclaim into one
for a declaration of nullity of a marriage,
does the death of a party abate the
proceedings?
The issue as framed by petitioner injects into it a supposed Marriage is a personal relation solely the effect of the decree of legal separation; hence,
conversion of a legal separation suit to one for declaration or status, created under the they can not survive the death of the plaintiff if it occurs prior
of nullity of a marriage, which is without basis, for even sanction of law, and an action to the decree. On the point, Article 106 of the Civil Code
petitioner asserted that "the respondent has acquiesced to for divorce is a proceeding provides: .
the dismissal of his counterclaim" (Petitioner's Brief, page brought for the purpose of
22). Not only this. The petition for legal separation and the effecting a dissolution of that Art. 106. The decree of legal separation
counterclaim to declare the nullity of the self same marriage relation. The action is one of a shall have the following
can stand independent and separate adjudication. They are personal nature. In the absence effects: chanrobles virtual law library
not inseparable nor was the action for legal separation of a statute to the contrary, the
converted into one for a declaration of nullity by the death of one of the parties to
(1) The spouses shall be entitled to live
counterclaim, for legal separation pre-supposes a valid such action abates the action,
separately from each other, but the
marriage, while the petition for nullity has a voidable for the reason that death has
marriage bonds shall not be
marriage as a settled the question of
severed; .chanroblesvirtualawlibrarychan
pre-condition.chanroblesvirtualawlibrarychanrobles virtual separation beyond all
robles virtual law library
law library controversy and deprived the
court of jurisdiction, both over
the persons of the parties to the (2) The conjugal partnership of gains or
The first real issue in this case is: Does the death of the
action and of the subject-matter the absolute conjugal community of
plaintiff before final decree, in an action for legal separation,
of the action itself. For this property shall be dissolved and liquidated,
abate the action? If it does, will abatement also apply if the
reason the courts are almost but the offending spouse shall have no
action involves property
unanimous in holding that the right to any share of the profits earned by
rights? .chanroblesvirtualawlibrarychanrobles virtual law
death of either party to a divorce the partnership or community, without
library
proceeding, before final decree, prejudice to the provisions of article
abates the action. 1 Corpus 176; chanrobles virtual law library
An action for legal separation which involves nothing more
Juris, 208; Wren v. Moss, 2
than the bed-and-board separation of the spouses (there
Gilman, 72; Danforth v. Danforth, (3) The custody of the minor children
being no absolute divorce in this jurisdiction) is purely
111 Ill. 236; Matter of Grandall, shall be awarded to the innocent spouse,
personal. The Civil Code of the Philippines recognizes this
196 N.Y. 127, 89 N.E. 578; 134 unless otherwise directed by the court in
in its Article 100, by allowing only the innocent spouse (and
Am St. Rep. 830; 17 Ann. Cas. the interest of said minors, for whom said
no one else) to claim legal separation; and in its Article 108,
874; Wilcon v. Wilson, 73 Mich, court may appoint a guardian; chanrobles
by providing that the spouses can, by their reconciliation,
620, 41 N.W. 817; Strickland v. virtual law library
stop or abate the proceedings and even rescind a decree of
Strickland, 80 Ark. 452, 97 S. W.
legal separation already rendered. Being personal in
659; McCurley v. McCurley, 60 (4) The offending spouse shall be
character, it follows that the death of one party to the action
Md. 185, 45 Am. Rep. 717; disqualified from inheriting from the
causes the death of the action itself - actio personalis
Begbie v. Begbie, 128 Cal. 155, innocent spouse by intestate succession.
moritur cum persona.
60 Pac. 667, 49 L.R.A. Moreover, provisions in favor of the
141. 5chanrobles virtual law offending spouse made in the will of the
... When one of the spouses is dead, library innocent one shall be revoked by
there is no need for divorce, because the
operation of law.
marriage is dissolved. The heirs cannot
The same rule is true of causes of action and suits
even continue the suit, if the death of the
for separation and maintenance (Johnson vs. From this article it is apparent that the right to the
spouse takes place during the course of
Bates, Ark. 101 SW 412; 1 Corpus Juris dissolution of the conjugal partnership of gains (or of the
the suit (Article 244, Section 3). The
208).chanroblesvirtualawlibrarychanrobles virtual absolute community of property), the loss of right by the
action is absolutely dead (Cass., July 27,
law library offending spouse to any share of the profits earned by the
1871, D. 71. 1. 81; Cass. req., May 8,
1933, D. H. 1933, partnership or community, or his disqualification to inherit by
332.") 4 .chanroblesvirtualawlibrarychanro A review of the resulting changes in property intestacy from the innocent spouse as well as the
bles virtual law library relations between spouses shows that they are revocation of testamentary provisions in favor of the
offending spouse made by the innocent one, are all rights
and disabilities that, by the very terms of the Civil Code
article, are vested exclusively in the persons of the spouses;
and by their nature and intent, such claims and disabilities
are difficult to conceive as assignable or transmissible.
Hence, a claim to said rights is not a claim that "is not
thereby extinguished" after a party dies, under Section 17,
Rule 3, of the Rules of Court, to warrant continuation of the
action through a substitute of the deceased party.
Sec. 17. Death of party. After a party dies
and the claim is not thereby extinguished,
the court shall order, upon proper notice,
the legal representative of the deceased
to appear and to be substituted for the
deceased, within a period of thirty (30)
days, or within such time as may be
granted...
The same result flows from a consideration of the
enumeration of the actions that survive for or against
administrators in Section 1, Rule 87, of the Revised Rules
of Court:
SECTION 1. Actions which may and
which may not be brought against
executor or administrator. No action upon
a claim for the recovery of money or debt
or interest thereon shall be commenced
against the executor or administrator; but
actions to recover real or personal
property, or an interest therein, from the
estate, or to enforce a lien thereon, and
actions to recover damages for an injury
to person or property, real or personal,
may be commenced against him.
Neither actions for legal separation or for annulment of
marriage can be deemed fairly included in the
enumeration..chanroblesvirtualawlibrarychanrobles virtual
law library
A further reason why an action for legal separation is
abated by the death of the plaintiff, even if property rights
are involved, is that these rights are mere effects of decree
of separation, their source being the decree itself; without
the decree such rights do not come into existence,
so that before the finality of a decree, these claims
are merely rights in expectation. If death
supervenes during the pendency of the action, no
decree can be forthcoming, death producing a
more radical and definitive separation; and the
expected consequential rights and claims would
necessarily remain
unborn.chanroblesvirtualawlibrarychanrobles
virtual law library
As to the petition of respondent-appellee Eufemio
for a declaration of nullity ab initio of his marriage
to Carmen Lapuz, it is apparent that such action
became moot and academic upon the death of the
latter, and there could be no further interest in
continuing the same after her demise, that
automatically dissolved the questioned union. Any
property rights acquired by either party as a result
of Article 144 of the Civil Code of the Philippines 6
could be resolved and determined in a proper
action for partition by either the appellee or by the
heirs of the
appellant.chanroblesvirtualawlibrarychanrobles
virtual law library
In fact, even if the bigamous marriage had not
been void ab initio but only voidable under Article
83, paragraph 2, of the Civil Code, because the
second marriage had been contracted with the first
wife having been an absentee for seven
consecutive years, or when she had been
generally believed dead, still the action for
annulment became extinguished as soon as one of
the three persons involved had died, as provided
in Article 87, paragraph 2, of the Code, requiring
that the action for annulment should be brought
during the lifetime of any one of the parties
involved. And furthermore, the liquidation of any
conjugal partnership that might have resulted from
such voidable marriage must be carried out "in the
testate or intestate proceedings of the deceased
spouse", as expressly provided in Section 2 of the
Revised Rule 73, and not in the annulment
proceeding.chanroblesvirtualawlibrarychanrobles
virtual law library
ACCORDINGLY, the appealed judgment of the Manila
Court of Juvenile and Domestic Relations is hereby affirmed.
No special pronouncement as to costs.
Republic Act No. 9262 March 08, 2004
AN ACT DEFINING VIOLENCE AGAINST WOMEN AND
THEIR CHILDREN, PROVIDING FOR PROTECTIVE
MEASURES FOR VICTIMS, PRESCRIBING PENALTIES
THEREFORE, AND FOR OTHER PURPOSES
Be it enacted by the Senate and House of Representatives
of the Philippine Congress Assembled:
SECTION 1. Short Title.- This Act shall be known as the
"Anti-Violence Against Women and Their Children Act of
2004".
SECTION 2. Declaration of Policy.- It is hereby declared
that the State values the dignity of women and children and
guarantees full respect for human rights. The State also
recognizes the need to protect the family and its members
particularly women and children, from violence and threats
to their personal safety and security.
Towards this end, the State shall exert efforts to address
violence committed against women and children in keeping
with the fundamental freedoms guaranteed under the
Constitution and the Provisions of the Universal Declaration
of Human Rights, the convention on the Elimination of all
forms of discrimination Against Women, Convention on the
Rights of the Child and other international human rights
instruments of which the Philippines is a party.
SECTION 3. Definition of Terms.- As used in this Act,
(a) "Violence against women and their children" refers to
any act or a series of acts committed by any person against
a woman who is his wife, former wife, or against a woman
with whom the person has or had a sexual or dating
relationship, or with whom he has a common child, or
against her child whether legitimate or illegitimate, within or
without the family abode, which result in or is likely to result
in physical, sexual, psychological harm or suffering, or
economic abuse including threats of such acts, battery,
assault, coercion, harassment or arbitrary deprivation of
liberty. It includes, but is not limited to, the following acts:
A. "Physical Violence" refers to acts that include bodily or
physical harm;
B. "Sexual violence" refers to an act which is sexual in
nature, committed against a woman or her child. It includes,
but is not limited to:
a) rape, sexual harassment, acts of lasciviousness, treating
a woman or her child as a sex object, making demeaning
and sexually suggestive remarks, physically attacking the
sexual parts of the victim's body, forcing her/him to watch
obscene publications and indecent shows or forcing the
woman or her child to do indecent acts and/or make films
thereof, forcing the wife and mistress/lover to live in the
conjugal home or sleep together in the same room with the
abuser;
b) acts causing or attempting to cause the victim to engage
in any sexual activity by force, threat of force, physical or
other harm or threat of physical or other harm or coercion;
c) Prostituting the woman or child.
C. "Psychological violence" refers to acts or omissions
causing or likely to cause mental or emotional suffering of
the victim such as but not limited to intimidation,
harassment, stalking, damage to property, public ridicule or
humiliation, repeated verbal abuse and mental infidelity. It
includes causing or allowing the victim to witness the
physical, sexual or psychological abuse of a member of the
family to which the victim belongs, or to witness
pornography in any form or to witness abusive injury to pets
or to unlawful or unwanted deprivation of the right to
custody and/or visitation of common children.
D. "Economic abuse" refers to acts that make or attempt to
make a woman financially dependent which includes, but is
not limited to the following:
1. withdrawal of financial support or preventing the victim
from engaging in any legitimate profession, occupation,
business or activity, except in cases wherein the other
spouse/partner objects on valid, serious and moral
grounds as defined in Article 73 of the Family
Code;
2. deprivation or threat of deprivation of financial
resources and the right to the use and enjoyment
of the conjugal, community or property owned in
common;
3. destroying household property;
4. controlling the victims' own money or properties
or solely controlling the conjugal money or
properties.
(b) "Battery" refers to an act of inflicting physical
harm upon the woman or her child resulting to the
physical and psychological or emotional distress.
(c) "Battered Woman Syndrome" refers to a
scientifically defined pattern of psychological and
behavioral symptoms found in women living in
battering relationships as a result of cumulative
abuse.
(d) "Stalking" refers to an intentional act committed
by a person who, knowingly and without lawful
justification follows the woman or her child or
places the woman or her child under surveillance
directly or indirectly or a combination thereof.
(e) "Dating relationship" refers to a situation
wherein the parties live as husband and wife
without the benefit of marriage or are romantically
involved over time and on a continuing basis
during the course of the relationship. A casual
acquaintance or ordinary socialization between
two individuals in a business or social context is
not a dating relationship.
(f) "Sexual relations" refers to a single sexual act
which may or may not result in the bearing of a
common child.
(g) "Safe place or shelter" refers to any home or institution
maintained or managed by the Department of Social
Welfare and Development (DSWD) or by any other agency
or voluntary organization accredited by the DSWD for the
purposes of this Act or any other suitable place the resident
of which is willing temporarily to receive the victim.
(h) "Children" refers to those below eighteen (18) years of
age or older but are incapable of taking care of themselves
as defined under Republic Act No. 7610. As used in this Act,
it includes the biological children of the victim and other
children under her care.
SECTION 4. Construction.- This Act shall be liberally
construed to promote the protection and safety of victims of
violence against women and their children.
SECTION 5. Acts of Violence Against Women and Their
Children.- The crime of violence against women and their
children is committed through any of the following acts:
(a) Causing physical harm to the woman or her child;
(b) Threatening to cause the woman or her child physical
harm;
(c) Attempting to cause the woman or her child physical
harm;
(d) Placing the woman or her child in fear of imminent
physical harm;
(e) Attempting to compel or compelling the woman or her
child to engage in conduct which the woman or her child
has the right to desist from or desist from conduct which the
woman or her child has the right to engage in, or attempting
to restrict or restricting the woman's or her child's freedom
of movement or conduct by force or threat of force, physical
or other harm or threat of physical or other harm, or
intimidation directed against the woman or child. This shall
include, but not limited to, the following acts committed with
the purpose or effect of controlling or restricting the
woman's or her child's movement or conduct:
(1) Threatening to deprive or actually depriving the woman
or her child of custody to her/his family;
(2) Depriving or threatening to deprive the woman or her
children of financial support legally due her or her family, or
deliberately providing the woman's children insufficient
financial support;
(3) Depriving or threatening to deprive the woman or her
child of a legal right;
(4) Preventing the woman in engaging in any legitimate
profession, occupation, business or activity or controlling
the victim's own mon4ey or properties, or solely controlling
the conjugal or common money, or properties;
(f) Inflicting or threatening to inflict physical harm on oneself
for the purpose of controlling her actions or decisions;
(g) Causing or attempting to cause the woman or her child
to engage in any sexual activity which does not constitute
rape, by force or threat of force, physical harm, or through
intimidation directed against the woman or her child or
her/his immediate family;
(h) Engaging in purposeful, knowing, or reckless conduct,
personally or through another, that alarms or causes
substantial emotional or psychological distress to the
woman or her child. This shall include, but not be limited to,
the following acts:
(1) Stalking or following the woman or her child in public or
private places;
(2) Peering in the window or lingering outside the residence
of the woman or her child;
(3) Entering or remaining in the dwelling or on the property
of the woman or her child against her/his will;
(4) Destroying the property and personal belongings or
inflicting harm to animals or pets of the woman or her child;
and
(5) Engaging in any form of harassment or violence;
(i) Causing mental or emotional anguish, public
ridicule or humiliation to the woman or her child,
including, but not limited to, repeated verbal and
emotional abuse, and denial of financial support or
custody of minor children of access to the woman's
child/children.
SECTION 6. Penalties.- The crime of violence
against women and their children, under Section 5
hereof shall be punished according to the following
rules:
(a) Acts falling under Section 5(a) constituting
attempted, frustrated or consummated parricide or
murder or homicide shall be punished in
accordance with the provisions of the Revised
Penal Code.
If these acts resulted in mutilation, it shall be
punishable in accordance with the Revised Penal
Code; those constituting serious physical injuries
shall have the penalty of prison mayor; those
constituting less serious physical injuries shall be
punished by prision correccional; and those
constituting slight physical injuries shall be
punished by arresto mayor.
Acts falling under Section 5(b) shall be punished
by imprisonment of two degrees lower than the
prescribed penalty for the consummated crime as
specified in the preceding paragraph but shall in
no case be lower than arresto mayor.
(b) Acts falling under Section 5(c) and 5(d) shall be
punished by arresto mayor;
(c) Acts falling under Section 5(e) shall be
punished by prision correccional;
(d) Acts falling under Section 5(f) shall be
punished by arresto mayor;
(e) Acts falling under Section 5(g) shall be
punished by prision mayor;
(f) Acts falling under Section 5(h) and Section 5(i) shall be
punished by prision mayor.
If the acts are committed while the woman or child is
pregnant or committed in the presence of her child, the
penalty to be applied shall be the maximum period of
penalty prescribed in the section.
In addition to imprisonment, the perpetrator shall (a) pay a
fine in the amount of not less than One hundred thousand
pesos (P100,000.00) but not more than three hundred
thousand pesos (300,000.00); (b) undergo mandatory
psychological counseling or psychiatric treatment and shall
report compliance to the court.
SECTION 7. Venue.- The Regional Trial Court designated
as a Family Court shall have original and exclusive
jurisdiction over cases of violence against women and their
children under this law. In the absence of such court in the
place where the offense was committed, the case shall be
filed in the Regional Trial Court where the crime or any of its
elements was committed at the option of the compliant.
SECTION 8. Protection Orders.- A protection order is an
order issued under this act for the purpose of preventing
further acts of violence against a woman or her child
specified in Section 5 of this Act and granting other
necessary relief. The relief granted under a protection order
serve the purpose of safeguarding the victim from further
harm, minimizing any disruption in the victim's daily life, and
facilitating the opportunity and ability of the victim to
independently regain control over her life. The provisions of
the protection order shall be enforced by law enforcement
agencies. The protection orders that may be issued under
this Act are the barangay protection order (BPO), temporary
protection order (TPO) and permanent protection order
(PPO). The protection orders that may be issued under this
Act shall include any, some or all of the following reliefs:
(a) Prohibition of the respondent from threatening to commit
or committing, personally or through another, any of the
acts mentioned in Section 5 of this Act;
(b) Prohibition of the respondent from harassing, annoying,
telephoning, contacting or otherwise communicating with
the petitioner, directly or indirectly;
(c) Removal and exclusion of the respondent from the
residence of the petitioner, regardless of ownership of the
residence, either temporarily for the purpose of protecting
the petitioner, or permanently where no property rights are
violated, and if respondent must remove personal effects
from the residence, the court shall direct a law enforcement
agent to accompany the respondent has gathered his things
and escort respondent from the residence;
(d) Directing the respondent to stay away from petitioner
and designated family or household member at a distance
specified by the court, and to stay away from the residence,
school, place of employment, or any specified place
frequented by the petitioner and any designated family or
household member;
(e) Directing lawful possession and use by petitioner of an
automobile and other essential personal effects, regardless
of ownership, and directing the appropriate law enforcement
officer to accompany the petitioner to the residence of the
parties to ensure that the petitioner is safely restored to the
possession of the automobile and other essential personal
effects, or to supervise the petitioner's or respondent's
removal of personal belongings;
(f) Granting a temporary or permanent custody of a
child/children to the petitioner;
(g) Directing the respondent to provide support to the
woman and/or her child if entitled to legal support.
Notwithstanding other laws to the contrary, the court shall
order an appropriate percentage of the income or salary of
the respondent to be withheld regularly by the respondent's
employer for the same to be automatically remitted directly
to the woman. Failure to remit and/or withhold or any delay
in the remittance of support to the woman and/or her child
without justifiable cause shall render the respondent or his
employer liable for indirect contempt of court;
(h) Prohibition of the respondent from any use or
possession of any firearm or deadly weapon and order him
to surrender the same to the court for appropriate
disposition by the court, including revocation of license and
disqualification to apply for any license to use or possess a
firearm. If the offender is a law enforcement agent, the court
shall order the offender to surrender his firearm and shall
direct the appropriate authority to investigate on
the offender and take appropriate action on matter;
(i) Restitution for actual damages caused by the
violence inflicted, including, but not limited to,
property damage, medical expenses, childcare
expenses and loss of income;
(j) Directing the DSWD or any appropriate agency
to provide petitioner may need; and
(k) Provision of such other forms of relief as the
court deems necessary to protect and provide for
the safety of the petitioner and any designated
family or household member, provided petitioner
and any designated family or household member
consents to such relief.
Any of the reliefs provided under this section shall
be granted even in the absence of a decree of
legal separation or annulment or declaration of
absolute nullity of marriage.
The issuance of a BPO or the pendency of an
application for BPO shall not preclude a petitioner
from applying for, or the court from granting a TPO
or PPO.
SECTION 9. Who may file Petition for Protection
Orders. – A petition for protection order may be
filed by any of the following:
(a) the offended party;
(b) parents or guardians of the offended party;
(c) ascendants, descendants or collateral relatives
within the fourth civil degree of consanguinity or
affinity;
(d) officers or social workers of the DSWD or social
workers of local government units (LGUs);
(e) police officers, preferably those in charge of
women and children's desks;
(f) Punong Barangay or Barangay Kagawad;
(g) lawyer, counselor, therapist or healthcare provider of the
petitioner;
(h) At least two (2) concerned responsible citizens of the
city or municipality where the violence against women and
their children occurred and who has personal knowledge of
the offense committed.
SECTION 10. Where to Apply for a Protection Order. –
Applications for BPOs shall follow the rules on venue under
Section 409 of the Local Government Code of 1991 and its
implementing rules and regulations. An application for a
TPO or PPO may be filed in the regional trial court,
metropolitan trial court, municipal trial court, municipal
circuit trial court with territorial jurisdiction over the place of
residence of the petitioner: Provided, however, That if a
family court exists in the place of residence of the petitioner,
the application shall be filed with that court.
SECTION 11. How to Apply for a Protection Order. – The
application for a protection order must be in writing, signed
and verified under oath by the applicant. It may be filed as
an independent action or as incidental relief in any civil or
criminal case the subject matter or issues thereof partakes
of a violence as described in this Act. A standard protection
order application form, written in English with translation to
the major local languages, shall be made available to
facilitate applications for protections order, and shall contain,
among other, the following information:
(a) names and addresses of petitioner and respondent;
(b) description of relationships between petitioner and
respondent;
(c) a statement of the circumstances of the abuse;
(d) description of the reliefs requested by petitioner as
specified in Section 8 herein;
(e) request for counsel and reasons for such;
(f) request for waiver of application fees until hearing; and
(g) an attestation that there is no pending application for a
protection order in another court.
If the applicants is not the victim, the application must be
accompanied by an affidavit of the applicant attesting to (a)
the circumstances of the abuse suffered by the victim and
(b) the circumstances of consent given by the victim for the
filling of the application. When disclosure of the address of
the victim will pose danger to her life, it shall be so stated in
the application. In such a case, the applicant shall attest
that the victim is residing in the municipality or city over
which court has territorial jurisdiction, and shall provide a
mailing address for purpose of service processing.
An application for protection order filed with a court shall be
considered an application for both a TPO and PPO.
Barangay officials and court personnel shall assist
applicants in the preparation of the application. Law
enforcement agents shall also extend assistance in the
application for protection orders in cases brought to their
attention.
SECTION 12. Enforceability of Protection Orders. – All
TPOs and PPOs issued under this Act shall be enforceable
anywhere in the Philippines and a violation thereof shall be
punishable with a fine ranging from Five Thousand Pesos
(P5,000.00) to Fifty Thousand Pesos (P50,000.00) and/or
imprisonment of six (6) months.
SECTION 13. Legal Representation of Petitioners for
Protection Order. – If the woman or her child requests in the
applications for a protection order for the appointment of
counsel because of lack of economic means to hire a
counsel de parte, the court shall immediately direct the
Public Attorney's Office (PAO) to represent the petitioner in
the hearing on the application. If the PAO determines that
the applicant can afford to hire the services of a counsel de
parte, it shall facilitate the legal representation of the
petitioner by a counsel de parte. The lack of access to
family or conjugal resources by the applicant, such as when
the same are controlled by the perpetrator, shall qualify the
petitioner to legal representation by the PAO.
However, a private counsel offering free legal service is not
barred from representing the petitioner.
SECTION 14. Barangay Protection Orders (BPOs);
Who May Issue and How. - Barangay Protection
Orders (BPOs) refer to the protection order issued
by the Punong Barangay ordering the perpetrator
to desist from committing acts under Section 5 (a)
and (b) of this Act. A Punong Barangay who
receives applications for a BPO shall issue the
protection order to the applicant on the date of
filing after ex parte determination of the basis of
the application. If the Punong Barangay is
unavailable to act on the application for a BPO, the
application shall be acted upon by any
available Barangay Kagawad. If the BPO is issued
by a Barangay Kagawad the order must be
accompanied by an attestation by the Barangay
Kagawad that the Punong Barangay was
unavailable at the time for the issuance of the BPO.
BPOs shall be effective for fifteen (15) days.
Immediately after the issuance of an ex parte BPO,
the Punong Barangay or Barangay Kagawad shall
personally serve a copy of the same on the
respondent, or direct any barangay official to effect
is personal service.
The parties may be accompanied by a non-lawyer
advocate in any proceeding before the Punong
Barangay.
SECTION 15. Temporary Protection Orders.
– Temporary Protection Orders (TPOs) refers to
the protection order issued by the court on the date
of filing of the application after ex
parte determination that such order should be
issued. A court may grant in a TPO any, some or
all of the reliefs mentioned in this Act and shall be
effective for thirty (30) days. The court shall
schedule a hearing on the issuance of a PPO prior
to or on the date of the expiration of the TPO. The
court shall order the immediate personal service of
the TPO on the respondent by the court sheriff
who may obtain the assistance of law enforcement
agents for the service. The TPO shall include
notice of the date of the hearing on the merits of
the issuance of a PPO.
SECTION 16. Permanent Protection Orders. –
Permanent Protection Order (PPO) refers to
protection order issued by the court after notice and
hearing.
Respondents non-appearance despite proper notice, or his
lack of a lawyer, or the non-availability of his lawyer shall
not be a ground for rescheduling or postponing the hearing
on the merits of the issuance of a PPO. If the respondents
appears without counsel on the date of the hearing on the
PPO, the court shall appoint a lawyer for the respondent
and immediately proceed with the hearing. In case the
respondent fails to appear despite proper notice, the court
shall allow ex parte presentation of the evidence by the
applicant and render judgment on the basis of the evidence
presented. The court shall allow the introduction of any
history of abusive conduct of a respondent even if the same
was not directed against the applicant or the person for
whom the applicant is made.
The court shall, to the extent possible, conduct the hearing
on the merits of the issuance of a PPO in one (1) day.
Where the court is unable to conduct the hearing within one
(1) day and the TPO issued is due to expire, the court shall
continuously extend or renew the TPO for a period of thirty
(30) days at each particular time until final judgment is
issued. The extended or renewed TPO may be modified by
the court as may be necessary or applicable to address the
needs of the applicant.
The court may grant any, some or all of the reliefs specified
in Section 8 hereof in a PPO. A PPO shall be effective until
revoked by a court upon application of the person in whose
favor the order was issued. The court shall ensure
immediate personal service of the PPO on respondent.
The court shall not deny the issuance of protection order on
the basis of the lapse of time between the act of violence
and the filing of the application.
Regardless of the conviction or acquittal of the respondent,
the Court must determine whether or not the PPO shall
become final. Even in a dismissal, a PPO shall be granted
as long as there is no clear showing that the act from which
the order might arise did not exist.
SECTION 17. Notice of Sanction in Protection Orders. –
The following statement must be printed in bold-faced type
or in capital letters on the protection order issued by
the Punong Barangay or court:
"VIOLATION OF THIS ORDER IS PUNISHABLE BY
LAW."
SECTION 18. Mandatory Period For Acting on Applications
For Protection Orders – Failure to act on an application for a
protection order within the reglementary period specified in
the previous section without justifiable cause shall render
the official or judge administratively liable.
SECTION 19. Legal Separation Cases. – In cases of legal
separation, where violence as specified in this Act is alleged,
Article 58 of the Family Code shall not apply. The court shall
proceed on the main case and other incidents of the case
as soon as possible. The hearing on any application for a
protection order filed by the petitioner must be conducted
within the mandatory period specified in this Act.
SECTION 20. Priority of Application for a Protection
Order. – Ex parte and adversarial hearings to determine the
basis of applications for a protection order under this Act
shall have priority over all other proceedings. Barangay
officials and the courts shall schedule and conduct hearings
on applications for a protection order under this Act above
all other business and, if necessary, suspend other
proceedings in order to hear applications for a protection
order.
SECTION 21. Violation of Protection Orders. – A complaint
for a violation of a BPO issued under this Act must be filed
directly with any municipal trial court, metropolitan trial court,
or municipal circuit trial court that has territorial jurisdiction
over the barangay that issued the BPO. Violation of a BPO
shall be punishable by imprisonment of thirty (30) days
without prejudice to any other criminal or civil action that the
offended party may file for any of the acts committed.
A judgement of violation of a BPO ma be appealed
according to the Rules of Court. During trial and upon
judgment, the trial court may motu proprio issue a protection
order as it deems necessary without need of an application.
Violation of any provision of a TPO or PPO issued under
this Act shall constitute contempt of court punishable under
Rule 71 of the Rules of Court, without prejudice to
any other criminal or civil action that the offended
party may file for any of the acts committed.
SECTION 22. Applicability of Protection Orders to
Criminal Cases. – The foregoing provisions on
protection orders shall be applicable in impliedly
instituted with the criminal actions involving
violence against women and their children.
SECTION 23. Bond to Keep the Peace. – The
Court may order any person against whom a
protection order is issued to give a bond to keep
the peace, to present two sufficient sureties who
shall undertake that such person will not commit
the violence sought to be prevented.
Should the respondent fail to give the bond as
required, he shall be detained for a period which
shall in no case exceed six (6) months, if he shall
have been prosecuted for acts punishable under
Section 5(a) to 5(f) and not exceeding thirty (30)
days, if for acts punishable under Section 5(g) to
5(I).
The protection orders referred to in this section are
the TPOs and the PPOs issued only by the courts.
SECTION 24. Prescriptive Period. – Acts falling
under Sections 5(a) to 5(f) shall prescribe in twenty
(20) years. Acts falling under Sections 5(g) to 5(I)
shall prescribe in ten (10) years.
SECTION 25. Public Crime. – Violence against
women and their children shall be considered a
public offense which may be prosecuted upon the
filing of a complaint by any citizen having personal
knowledge of the circumstances involving the
commission of the crime.
SECTION 26. Battered Woman Syndrome as a
Defense. – Victim-survivors who are found by the
courts to be suffering from battered woman
syndrome do not incur any criminal and civil
liability notwithstanding the absence of any of the
elements for justifying circumstances of self-defense under
the Revised Penal Code.
In the determination of the state of mind of the woman who
was suffering from battered woman syndrome at the time of
the commission of the crime, the courts shall be assisted by
expert psychiatrists/ psychologists.
SECTION 27. Prohibited Defense. – Being under the
influence of alcohol, any illicit drug, or any other
mind-altering substance shall not be a defense under this
Act.
SECTION 28. Custody of children. – The woman victim of
violence shall be entitled to the custody and support of her
child/children. Children below seven (7) years old older but
with mental or physical disabilities shall automatically be
given to the mother, with right to support, unless the court
finds compelling reasons to order otherwise.
A victim who is suffering from battered woman syndrome
shall not be disqualified from having custody of her children.
In no case shall custody of minor children be given to the
perpetrator of a woman who is suffering from Battered
woman syndrome.
SECTION 29. Duties of Prosecutors/Court Personnel. –
Prosecutors and court personnel should observe the
following duties when dealing with victims under this Act:
a) communicate with the victim in a language understood by
the woman or her child; and
b) inform the victim of her/his rights including legal remedies
available and procedure, and privileges for indigent litigants.
SECTION 30. Duties of Barangay Officials and Law
Enforcers. – Barangay officials and law enforcers shall have
the following duties:
(a) respond immediately to a call for help or request for
assistance or protection of the victim by entering the
necessary whether or not a protection order has been
issued and ensure the safety of the victim/s;
(b) confiscate any deadly weapon in the possession of the
perpetrator or within plain view;
(c) transport or escort the victim/s to a safe place of their
choice or to a clinic or hospital;
(d) assist the victim in removing personal belongs from the
house;
(e) assist the barangay officials and other government
officers and employees who respond to a call for help;
(f) ensure the enforcement of the Protection Orders issued
by the Punong Barangy or the courts;
(g) arrest the suspected perpetrator wiithout a warrant when
any of the acts of violence defined by this Act is occurring,
or when he/she has personal knowledge that any act of
abuse has just been committed, and there is imminent
danger to the life or limb of the victim as defined in this Act;
and
(h) immediately report the call for assessment or assistance
of the DSWD, social Welfare Department of LGUs or
accredited non-government organizations (NGOs).
Any barangay official or law enforcer who fails to report the
incident shall be liable for a fine not exceeding Ten
Thousand Pesos (P10,000.00) or whenever applicable
criminal, civil or administrative liability.
SECTION 31. Healthcare Provider Response to Abuse –
Any healthcare provider, including, but not limited to, an
attending physician, nurse, clinician, barangay health
worker, therapist or counselor who suspects abuse or has
been informed by the victim of violence shall:
(a) properly document any of the victim's physical,
emotional or psychological injuries;
(b) properly record any of victim's suspicions, observations
and circumstances of the examination or visit;
(c) automatically provide the victim free of charge a medical
certificate concerning the examination or visit;
(d) safeguard the records and make them
available to the victim upon request at actual cost;
and
(e) provide the victim immediate and adequate
notice of rights and remedies provided under this
Act, and services available to them.
SECTION 32. Duties of Other Government
Agencies and LGUs – Other government agencies
and LGUs shall establish programs such as, but
not limited to, education and information campaign
and seminars or symposia on the nature, causes,
incidence and consequences of such violence
particularly towards educating the public on its
social impacts.
It shall be the duty of the concerned government
agencies and LGU's to ensure the sustained
education and training of their officers and
personnel on the prevention of violence against
women and their children under the Act.
SECTION 33. Prohibited Acts. – A Punong
Barangay, Barangay Kagawad or the court hearing
an application for a protection order shall not order,
direct, force or in any way unduly influence he
applicant for a protection order to compromise or
abandon any of the reliefs sought in the application
for protection under this Act. Section 7 of the
Family Courts Act of 1997 and Sections 410, 411,
412 and 413 of the Local Government Code of
1991 shall not apply in proceedings where relief is
sought under this Act.
Failure to comply with this Section shall render the
official or judge administratively liable.
SECTION 34. Persons Intervening Exempt from
Liability. – In every case of violence against
women and their children as herein defined, any
person, private individual or police authority or
barangay official who, acting in accordance with
law, responds or intervenes without using violence
or restraint greater than necessary to ensure the
safety of the victim, shall not be liable for any
criminal, civil or administrative liability resulting therefrom.
SECTION 35. Rights of Victims. – In addition to their rights
under existing laws, victims of violence against women and
their children shall have the following rights:
(a) to be treated with respect and dignity;
(b) to avail of legal assistance form the PAO of the
Department of Justice (DOJ) or any public legal assistance
office;
(c) To be entitled to support services form the DSWD and
LGUs'
(d) To be entitled to all legal remedies and support as
provided for under the Family Code; and
(e) To be informed of their rights and the services available
to them including their right to apply for a protection order.
SECTION 36. Damages. – Any victim of violence under this
Act shall be entitled to actual, compensatory, moral and
exemplary damages.
SECTION 37. Hold Departure Order. – The court shall
expedite the process of issuance of a hold departure order
in cases prosecuted under this Act.
SECTION 38. Exemption from Payment of Docket Fee and
Other Expenses. – If the victim is an indigent or there is an
immediate necessity due to imminent danger or threat of
danger to act on an application for a protection order, the
court shall accept the application without payment of the
filing fee and other fees and of transcript of stenographic
notes.
SECTION 39. Inter-Agency Council on Violence Against
Women and Their Children (IAC-VAWC). In pursuance of
the abovementioned policy, there is hereby established an
Inter-Agency Council on Violence Against Women and their
children, hereinafter known as the Council, which shall be
composed of the following agencies:
(a) Department of Social Welfare and Development
(DSWD);
(b) National Commission on the Role of Filipino Women
(NCRFW);
(c) Civil Service Commission (CSC);
(d) Commission on Human rights (CHR)
(e) Council for the Welfare of Children (CWC);
(f) Department of Justice (DOJ);
(g) Department of the Interior and Local Government
(DILG);
(h) Philippine National Police (PNP);
(i) Department of Health (DOH);
(j) Department of Education (DepEd);
(k) Department of Labor and Employment (DOLE); and
(l) National Bureau of Investigation (NBI).
These agencies are tasked to formulate programs and
projects to eliminate VAW based on their mandates as well
as develop capability programs for their employees to
become more sensitive to the needs of their clients. The
Council will also serve as the monitoring body as regards to
VAW initiatives.
The Council members may designate their duly authorized
representative who shall have a rank not lower than an
assistant secretary or its equivalent. These representatives
shall attend Council meetings in their behalf, and shall
receive emoluments as may be determined by the Council
in accordance with existing budget and accounting rules
and regulations.
SECTION 40. Mandatory Programs and Services for
Victims. – The DSWD, and LGU's shall provide the victims
temporary shelters, provide counseling,
psycho-social services and /or, recovery,
rehabilitation programs and livelihood assistance.
The DOH shall provide medical assistance to
victims.
SECTION 41. Counseling and Treatment of
Offenders. – The DSWD shall provide
rehabilitative counseling and treatment to
perpetrators towards learning constructive ways of
coping with anger and emotional outbursts and
reforming their ways. When necessary, the
offender shall be ordered by the Court to submit to
psychiatric treatment or confinement.
SECTION 42. Training of Persons Involved in
Responding to Violence Against Women and their
Children Cases. – All agencies involved in
responding to violence against women and their
children cases shall be required to undergo
education and training to acquaint them with:
a. the nature, extend and causes of violence
against women and their children;
b. the legal rights of, and remedies available to,
victims of violence against women and their
children;
c. the services and facilities available to victims or
survivors;
d. the legal duties imposed on police officers to
make arrest and to offer protection and assistance;
and
e. techniques for handling incidents of violence
against women and their children that minimize the
likelihood of injury to the officer and promote the
safety of the victim or survivor.
The PNP, in coordination with LGU's shall
establish an education and training program for
police officers and barangay officials to enable
them to properly handle cases of violence against women
and their children.
SECTION 43. Entitled to Leave. – Victims under this Act
shall be entitled to take a paid leave of absence up to ten
(10) days in addition to other paid leaves under the Labor
Code and Civil Service Rules and Regulations, extendible
when the necessity arises as specified in the protection
order.
Any employer who shall prejudice the right of the person
under this section shall be penalized in accordance with the
provisions of the Labor Code and Civil Service Rules and
Regulations. Likewise, an employer who shall prejudice any
person for assisting a co-employee who is a victim under
this Act shall likewise be liable for discrimination.
SECTION 44. Confidentiality. – All records pertaining to
cases of violence against women and their children
including those in the barangay shall be confidential and all
public officers and employees and public or private clinics to
hospitals shall respect the right to privacy of the victim.
Whoever publishes or causes to be published, in any format,
the name, address, telephone number, school, business
address, employer, or other identifying information of a
victim or an immediate family member, without the latter's
consent, shall be liable to the contempt power of the court.
Any person who violates this provision shall suffer the
penalty of one (1) year imprisonment and a fine of not more
than Five Hundred Thousand pesos (P500,000.00).
SECTION 45. Funding – The amount necessary to
implement the provisions of this Act shall be included in the
annual General Appropriations Act (GAA).
The Gender and Development (GAD) Budget of the
mandated agencies and LGU's shall be used to implement
services for victim of violence against women and their
children.
SECTION 46. Implementing Rules and Regulations. –
Within six (6) months from the approval of this Act, the DOJ,
the NCRFW, the DSWD, the DILG, the DOH, and the PNP,
and three (3) representatives from NGOs to be identified by
the NCRFW, shall promulgate the Implementing Rules and
Regulations (IRR) of this Act.
SECTION 47. Suppletory Application – For purposes of this
Act, the Revised Penal Code and other applicable laws,
shall have suppletory application.
SECTION 48. Separability Clause. – If any section or
provision of this Act is held unconstitutional or invalid, the
other sections or provisions shall not be affected.
SECTION 49. Repealing Clause – All laws, Presidential
decrees, executive orders and rules and regulations, or
parts thereof, inconsistent with the provisions of this Act are
hereby repealed or modified accordingly.
SECTION 50. Effectivity – This Act shall take effect fifteen
(15) days from the date of its complete publication in at least
two (2) newspapers of general circulation.
Art. 63. The decree of legal separation shall have the
following effects:
(1) The spouses shall be entitled to live separately from
each other, but the marriage bonds shall not be severed;
(2) The absolute community or the conjugal partnership
shall be dissolved and liquidated but the offending spouse
shall have no right to any share of the net profits earned by
the absolute community or the conjugal partnership, which
shall be forfeited in accordance with the provisions of Article
43(2);
(3) The custody of the minor children shall be awarded to
the innocent spouse, subject to the provisions of Article 213
of this Code; and
(4) The offending spouse shall be disqualified from
inheriting from the innocent spouse by intestate succession.
Moreover, provisions in favor of the offending spouse made
in the will of the innocent spouse shall be revoked by
operation of law. (106a)
G.R. No. L-38287 October 23, 1981
ANTONIO MACADANGDANG, Petitioner,
vs. THE COURT OF APPEALS; HONORABLE
ALEJANDRO E. SEBASTIAN, in his capacity as
Presiding Judge, Court of First Instance of
Davao, 16th Judicial District, Sala 1, Tagum,
Davao del Norte; FILOMENA GAVIANA,
MACADANGDANG; and ROLANDO
RAMA, Respondents.
RESOLUTION
MAKASIAR, J.:
This petition for certiorari, prohibition and
injunction with prayer for temporary restraining
order presents for review the Court of Appeal's
resolution dated December 21, 1973, which
dismissed the petition in CA-G.R. No. Sp-02656-R,
petitioner's motion for reconsideration of the said
resolution having been denied on January 29,
1974.chanroblesvirtualawlibrary chanrobles virtual
law library
From the records, it appears that respondent
Filomena Gaviana Macadangdang (hereinafter
referred to as private respondent) and petitioner
Antonio Macadangdang contracted marriage in
1946 after having lived together for two years.
From a humble buy-and-sell business and sari-sari
store operation in Davao City, the spouses moved
to Mawab Davao del Norte where, through hard
work and good fortune, their small business grew
and expanded into merchandising, trucking,
transportation, rice and corn mill business, abaca
stripping, real estate and others. They were
blessed with six children, three of whom were
already of majority age and the other three were
still minors as of the time this case was initiated in
the lower court. With their established businesses
and accumulated wealth, their once simple life
became complicated and their relationship started
to suffer setbacks. While the economic or material
aspect of their marriage was stabilized the physical
and spiritual aspects became shaky. Both accused
each other of indulging in extramarital relations.
Married life for them became so intolerable that
they separated in 1965 when private respondent
left for Cebu for good. When she returned to Davao in 1971,
she learned of the illicit affairs of her estranged husband.
Then and there, she decided to take the initial
action.chanroblesvirtualawlibrarychanrobles virtual law
library
On April 28, 1971, private respondent (plaintiff therein)
instituted a complaint for legal separation in the Court of
First Instance of Davao, Branch VI I I at Tagum, Davao,
which complaint was docketed as Civil Case No. 109 and
entitled "Filomena Gaviana Macadangdang vs. Antonio
Macadangdang" [P. 156,
rec].chanroblesvirtualawlibrary chanrobles virtual law library
Petitioner (then defendant) filed his answer with
counterclaim dated May 31, 1971 [p. 158,
rec].chanroblesvirtualawlibrary chanrobles virtual law library
On February 9, 1972, private respondent filed a petition for
appointment of administrator, to administer the estate of the
conjugal partnership pending the termination of the case [p.
100, rec.].chanroblesvirtualawlibrary chanrobles virtual law
library
Petitioner opposed the aforesaid petition in a pleading
dated February 21, 1972 [P. 102, rec] chanrobles virtual law
library
On January 4, 1973, the petition for appointment of
administrator not having been acted upon, the trial court
handed down its decision, the dispositive portion of which
states thus: chanrobles virtual law library
Wherefore, judgment is hereby rendered ordering the legal
separation of plaintiff and the defendant, or what under the
old law was separation from bed and board - a mensa et
thoro - with all the legal effects attendant thereto,
particularly the dissolution and liquidation of the conjugal
community of property. Since there is no complete list of the
community property which has to be divided, pending the
dissolution of the conjugal property, the defendant is
ordered to pay to plaintiff P10,000.00 for her support, for
any way he had been disposing some of the properties or
mortgaging them without sharing the plaintiff any part of the
fruits or proceeds thereof until the court can appoint an
administrator, as prayed for by plaintiff in a separate petition,
who will take over the administration and management of all
the conjugal partnership properties, and act as guardian of
the minor children; to protect said properties from
dissipation, and who will submit a complete inventory of
said properties so that the Court can make a just division,
such division to be embodied in a supplemental decision. ...
[pp. 104-115, rec.].
On August 7, 1973, private respondent filed a motion
praying that she be allowed to withdraw P10,000.00 from
the lease rental of a portion of their conjugal property
deposited by Francisco Dizon [p. 116,
rec.].chanroblesvirtualawlibrary chanrobles virtual law
library
Respondent Judge acted on the aforesaid motion by issuing
the order of August 13, 1973 which directed the clerk of
court "to deliver, under receipt, to plaintiff Filomena Gaviana
Macadangdang and/or to her counsel, Atty. Marcial
Fernandez, the amount of P10,000.00" [p. 118,
rec].chanroblesvirtualawlibrary chanrobles virtual law library
On August 25, 1973, private respondent filed another
motion for the appointment of an administrator, reiterating
her previous petition and urging favorable action thereon "to
impede unlawful sequestration of some conjugal assets and
clandestine transfers" by petitioner [p. 120, rec.]. Petitioner
again filed his opposition dated September 6, 1973 [p. 122,
rec.].chanroblesvirtualawlibrary chanrobles virtual law
library
On September 20, 1973, respondent Judge issued an order
directing plaintiff's counsel "to submit three (3) names for
appointment as administrator, including in the list, if
possible, a banking institution authorized to handle cases of
administration of properties, furnishing a copy of said list to
defendant, who shag be given three (3) days from receipt
thereof to present his observations and objections to said
recommended persons or entity, after which the Court will
select the administrator as may seem best suited for the
purpose" [pp. 126-127, rec] chanrobles virtual law library
Petitioner then filed a motion for reconsideration dated
October 3, 1973 of the order of September 20, 1973 with
prayer that he be allowed to continue administering the
conjugal properties in accordance with law [p. 128, rec.].
This motion for reconsideration was denied in the
order of October 13, 1973 [p. 133,
rec].chanroblesvirtualawlibrary chanrobles virtual
law library
On October 13, 1973, herein private respondent
filed a motion for appointment of administrator and
submission of complete fist of conjugal assets by
defendant, submitting therein three nominees for
administrator [p. 135,
rec].chanroblesvirtualawlibrary chanrobles virtual
law library
On October 23, 1973, petitioner filed his second
motion for reconsideration praying therein that the
orders of September 20, 1973 and October 13,
1973 be reconsidered by not proceeding with the
appointment of an administrator of the conjugal
properties of the parties [p. 137,
rec].chanroblesvirtualawlibrary chanrobles virtual
law library
Respondent Judge denied the aforesaid second
motion for reconsideration in his order of
November 19, 1973, reiterating therein his ruling
that the decree of legal separation had become
final [p. 141,
rec].chanroblesvirtualawlibrary chanrobles virtual
law library
Petitioner brought the case to the Court of Appeals
in a petition for certiorari and prohibition with writ of
preliminary injunction and/or temporary restraining
order filed on December 18, 1973. Said petition
sought to review, set aside and declare null and
void the orders of September 20, 1973, October 13,
1973 and November 19, 1973 of respondent
Judge; to prohibit respondent Judge from carrying
out and executing the aforecited orders; and to
prohibit him from treating, regarding and
construing his decision of January 4, 1973 as
being "final and executory" as well as from
enforcing the same in any manner whatsoever [pp.
1, 4, & 5,
rec.].chanroblesvirtualawlibrary chanrobles virtual
law library
The Court of Appeals, in its resolution of December 21,
1973, ruled that the questioned January 4, 1973 decision of
the lower court had become final and, consequently, the
appointment of an administrator was valid and that the
petition was not sufficient in substance, since the applicable
law and jurisprudence afford the petitioner no valid cause to
impugn the three questioned orders. The appellate court
accordingly dismissed the petition [pp. 70-80,
rec].chanroblesvirtualawlibrary chanrobles virtual law library
Hence, this appeal from the resolution of December 21,
1973.chanroblesvirtualawlibrary chanrobles virtual law
library
On February 6, 1980, counsel for petitioner, through a
notice of death and motion to dismiss, informed this Court
that petitioner Antonio Macadangdang died on November
30, 1979 and as a consequence thereof, this case and Civil
Case No. 109 of the Court of First Instance of Davao have
become moot and academic [p. 516,
rec.].chanroblesvirtualawlibrary chanrobles virtual law
library
Private respondent, when required to comment on the
aforesaid motion, moved for a resolution of this case
although she believes that petitioner's death has posed new
intervening circumstances that would affect the entire
purpose in filing the same. In effect, private respondent
agrees with petitioner's counsel that her husband's death
has rendered the instant petition moot and academic [pp.
522, 524, rec.].chanroblesvirtualawlibrary chanrobles virtual
law library
Petitioner had averred that the Court of Appeals gravely
erred in holding that respondent Judge's incomplete
decision of January 4, 1973 had become final and
executory and that the same Court committed an error in
holding that the appointment of an administrator in the case
below was proper.chanroblesvirtualawlibrary chanrobles
virtual law library
Private respondent, upon the other hand, has always
maintained that - chanrobles virtual law library
CA
1. the decision of January 4, 1973 had become final and
executory when the petitioner failed to appeal therefrom
within the reglementary period of 30 days from receipt
thereof, despite the non-issuance of a supplemental
decision regarding the division of the conjugal properties;
and chanrobles virtual law library
2. the appointment of an administrator pending the actual
division of said properties is proper being a must and an
exercise of the sound discretion of the Honorable Presiding
Judge in the Court of First Instance of Davao, Branch VIII in
Tagum [pp. 193-194, rec].
Did petitioner's death on November 30, 1979 render the
case moot and academic? Legal problems do not cease
simply because one of the parties dies; the same problems
may come up again in another case of similar magnitude.
Considering also the far-reaching significance and
implications of a pronouncement on the very important
issues involved, this Court feels bound to meet said issues
frontally and come out with a decisive resolution of the
same.chanroblesvirtualawlibrary chanrobles virtual law
library
Thus, the questions for resolution have been narrowed
down to the following: chanrobles virtual law library
1. Whether the decision of the trial court dated January 4,
1973 in Civil Case No. 109 finding herein petitioner guilty of
concubinage and decreeing legal separation between him
and his wife Filomena Gaviana Macadangdang (private
respondent herein) had already become final and executory
long before the herein petition was filed; chanrobles virtual
law library
2. Should the children of both spouses predecease the
surviving spouse, whether the intestate heirs of the
deceased could inherit from the innocent surviving spouse,
particularly where the latter's share in the conjugal assets is
concerned, in view of Article 106, No. 4 of the New Civil
Code; and chanrobles virtual law library
3. The effect of the pendency of Special Proceedings No.
134 in the Court of First Instance of Davao for the
settlement of the estate of the deceased petitioner herein,
on the decision in Civil Case No. 109 as well as on the
instant petition.
In support of his contention that the Court of
Appeals committed grave error in holding that
respondent Judge's incomplete decision of
January 4, 1973 had become final and executory,
petitioner had consistently asserted the following
reasons: chanrobles virtual law library
1. Private respondent's complaint for legal
separation and division of properties was a single
complaint. Thus, she explicitly prayed: chanrobles
virtual law library
xxx xxx xxxchanrobles virtual law library
3. That upon trial of this action judgment be
rendered ordering the legal separation of the
plaintiff and the defendant and the division of all
the assets of the conjugal partnership, ... [p. 157,
rec)
In this single action, private respondent asked the
trial court to decide if petitioner and she should be
legally separated, and if they should, what
properties would form part of the conjugal regime
and which properties would be assigned to each
spouse.chanroblesvirtualawlibrary chanrobles
virtual law library
2. Of the aforesaid issues, the lower court resolved
only the issue of legal separation and reserved for
supplemental decision the division of the conjugal
properties. Petitioner had further argued that
- chanrobles virtual law library
Inasmuch as the Decision failed to dispose of all
the issues before the Court, which necessitated
the announcement of a forthcoming supplemental
decision, petitioner respectfully submits that the
Decision was an incomplete judgment. In Santos v.
de Guzman, 1 SCRA 1048, is found this very
succinct explanation of what an incomplete
judgment is: chanrobles virtual law library
... There was but one case before the lower court.
Its first decision (of June 12, 1956) was, as already
stated, incomplete the same not having resolved
the issues involved in the litigation. For this reason the trial
had to be reopened and a supplemental decision had to be
rendered ... (at p. 1053; emphasis supplied).
WE do not find merit in petitioner's submission that the
questioned decision had not become final and executory
since the law explicitly and clearly provides for the
dissolution and liquidation of the conjugal partnership of
gains of the absolute community of property as among the
effects of the final decree of legal separation. Article 106 of
the Civil Code thus reads: chanrobles virtual law library
Art. 106. The decree of legal separation shall have the
following effects: chanrobles virtual law library
1) The spouses shall be entitled to live separately from each
other, but the marriage bonds shall not be
severed; chanrobles virtual law library
2) The conjugal partnership of gains or the absolute
conjugal community of property shall be dissolved and
liquidated but the offending spouse shall have no right to
any share of the profits earned by the partnership or
community, without prejudice to the provisions of article
176;
xxx xxx xxxchanrobles virtual law library
[emphasis supplied].
The aforequoted provision mandates the dissolution and
liquidation of the property regime of the spouses upon
finality of the decree of legal separation. Such dissolution
and liquidation are necessary consequences of the final
decree. This legal effect of the decree of legal
separation ipso facto or automatically follows, as an
inevitable incident of, the judgment decreeing legal
separation-for the purpose of determining the share of each
spouse in the conjugal
assets.chanroblesvirtualawlibrary chanrobles virtual law
library
Even American courts have made definite pronouncements
on the aforestated legal effect of a divorce (legal separation)
decree.chanroblesvirtualawlibrary chanrobles virtual law
library
Generally speaking, the purpose of a decree in divorce
insofar as the disposition of property is concerned is to fix
and make certain the property rights and interests of the
parties (Mich-Westgate vs. Westgate, 288 N.W. 860, 291
Mich. 18, 300 [1] p. 354, C.J.S. Vol. 27B); and it has been
held that the provisions of the decree should definitely and
finally determine the property rights and interests of the
parties (Wash.-Shaffer vs. Shaffer, 262 P. 2d. 763, 43
Wash. 2d 629; 300 [11 p. 354 C.J.S. Vol. 27B); and that any
attempted reservation of such questions for future
determination is improper and error (Mich.-Karwowski vs.
Karwowski, 20 N.W. 2d 851, 313 Mich. 167, 300 11] p. 354,
C.J.S., Vol. 27B; emphasis
supplied).chanroblesvirtualawlibrary chanrobles virtual law
library
Some statutes providing for the division or disposition of the
property of the parties to a divorce have been held
mandatory and hence to require the court to decree some
division of their property rights (U.S.-Pearce vs. CIR, 62 S.
Ct. 154, 315 U.S. 543, 86 L. ed. 1016, construing Texas
statute; 291 [1] p. 263 C.J.S. Vol.
27B).chanroblesvirtualawlibrary chanrobles virtual law
library
Likewise, it has been held that the settlement of some
pro-property rights between the parties is an incident of
every decree of divorce where there is any property
involved (Utah-Smith vs. Smith, 291 P. 298, 77 Utah 60,
291 [1] p. 264, C.J.S., Vol.
27B).chanroblesvirtualawlibrary chanrobles virtual law
library
It has been held that notwithstanding the division of property
between the parties, the subject matter of a divorce action
remains the marital status of the parties, the settlement of
the property rights being merely incidental (Wash.-State ex
rel. Atkins vs. Superior Court of King Country, 97 P. 2d. 139,
1 Wash. 2d 677; 291 [1] p. 264 C.J.S., Vol. 27B; emphasis
supplied).chanroblesvirtualawlibrary chanrobles virtual law
library
Under other authorities, by the very nature of the litigation,
all property rights growing out of marital relations are settled
and included in divorce proceedings (Ind.-Novak vs. Novak,
133 N.E. 2d 578, 126 Ind. App. 428) and a decree of
divorce is an adjudication of all property rights connected
with the marriage and precludes the parties as to
all matters which might have been legitimately
proved in support of charges or defenses in the
action (U.S.-Spreckles vs. Wakefield, C.C.A. 286 F.
465) and bars any action thereafter brought by
either party to determine the question of property
rights (Fla.-Cooper vs. Cooper, 69 So. 2d 881;
Finston vs. Finston, 37 So. 2d 423,160 Fla. 935; p.
751, C.J.S. Vol.
27A).chanroblesvirtualawlibrary chanrobles virtual
law library
An absolute divorce ordinarily terminates all
property rights and interests, not actually vested,
of divorced persons in property of each other,
which are dependent on the marriage
(U.S.-Cockrill vs. Woodson, D.C. Mo., 70 F. 752),
at least where no proceedings have been taken to
vacate or modify the decree by appeal until the
statutory time therefor has expired (Kan.-Roberts
vs. Fagan 92 P. 559, 76 Kan. 536). Accordingly,
unless the court granting the decree is without
jurisdiction, inchoate rights of the wife in the
husband's property are usually cut off (Ky-Bowling
vs. Little, 206 S.W. 1, 182 Ky 86) especially where
by the terms of the decree all property obtained by
either spouse from or through the other during the
marriage is restored to such spouse (Tex. Houston,
etc., R. Co. vs. Helm, Civ. App. 93 S.W. 697; pp.
752-753, C.J.S. Vol.
27A).chanroblesvirtualawlibrary chanrobles virtual
law library
Enunciating with directness and finality, one U.S.
court held: "The part of a divorce suit regarding
property is a part of the very divorce action itself"
(Tex.-Ex parte Scott 123 S.W. 2d. 306, 313, 133
Tex. 1, answers to certified questions conformed
to, Civ. App. 126, S.W. 2d 525; 291 [1] p. 264,
C.J.S. Vol.
27B).chanroblesvirtualawlibrary chanrobles virtual
law library
Petitioner erred in invoking the case of Vda. de
Zaldarriaga vs. Zaldarriaga which in turn cited the
doctrine of Fuentebella vs. Carrascoso, which We
have already declared abrogated in the case of
Miranda vs. Court of Appeals (L-33007, 71 SCRA 295,
[June 18, 1976]). In this case, this Court explicitly
stated: chanrobles virtual law library
For the guidance of the bench and bar, the court declares
as abandoned the doctrine of Fuentebella vs. Carrascoso
and adopts the opposite rule that judgments for recovery
with accounting are final and appealable (without need of
awaiting the accounting) and would become final and
executory if not appealed within the reglementary period.
In resolving the question of whether or not the judgment
directing an accounting in an action for recovery of
properties is final and appealable, this Court further
explained: chanrobles virtual law library
The judgment "directing an accounting is appealable,
regardless of whether the accounting is the principal relief
sought or a mere incident or consequence of the judgment
which grants recovery and delivery of absconded properties
as the principal relief and expressly provides that"a
judgment or order directing an accounting in an action, shall
not be stayed after its rendition and before an appeal is
taken or during the pendency of an
appeal.chanroblesvirtualawlibrary chanrobles virtual law
library
xxx xxx xxxchanrobles virtual law library
If a judgment which directs solely an accounting is
appealable notwithstanding that it "does not finally dispose
of the action and the accounting has yet to be rendered to
complete the relief sought," much more so is a judgment
which orders accounting as a mere incident appealable,
because the judgment which orders the delivery of
properties does finally dispose of the action on its
merits, chanrobles virtual law library
xxx xxx xxxchanrobles virtual law library
Imperative and controlling considerations of public
policy and of sound practice in the courts to achieve
the desideratum of just, speedy and inexpensive
determination of every action militate against such
a novel and unprecedented situation where a judgment on
the merits for recovery of properties would be
left dangling and would be considered as "interlocutory" and
subject to revision and alteration at will for as long as
the accounting ordered as a mere incident and logical
consequence has not been rendered and acted upon by the
trial court.chanroblesvirtualawlibrary chanrobles virtual law
library
xxx xxx xxxchanrobles virtual law library
The Court, however, deems it proper for the guidance of the
bench and bar to now declare as is clearly indicated from
the compelling reasons and considerations herein-above
stated:- that the court considers the better rule to be that
stated in H.E. Heacock Co. vs. American Trading Co. (53
Phil. 481 [19291, to wit, that where the primary purpose of a
case is to ascertain and determine who between plaintiff
and defendant is the true owner and entitled to the
exclusive use of the disputed property, "the judgment ...
rendered by the lower court [is] a judgment on the merits as
to those questions, and (that) the order of the court for
an accounting was based upon and is incidental to the
judgment on the merits. That is to say, that the judgment ...
(is) a final judgment ... ; that in this kind of a case an
accounting is a mere incident to the judgment; that
an appeal lies from the rendition of the judgment as
rendered ...chanroblesvirtualawlibrarychanrobles virtual law
library
xxx xxx xxxchanrobles virtual law library
-that accordingly, the contrary ruling in Fuentebella vs.
Carrascoso which expressly reversed the Heacock case
and a line of similar decisions (Africa vs. Africa, 42 Phil. 934;
Villanueva vs. Capistrano; Prophylactic Brush Co., et al. vs.
Court of Appeals, G.R. No. 46254, Nov. 23, 1938
[Unpublished) and ruled that such a decision for recovery of
property with accounting 'is not final but merely interlocutory
and therefore not appealable and subsequent cases
Adhering to the same Zaldarriaga vs. Enriquez, 1 SCRA
1188) must be now in turn abandoned and set
aside.chanroblesvirtualawlibrary chanrobles virtual law
library
xxx xxx xxxchanrobles virtual law library
The Court's considered opinion is the Civil Code) clearly spells out the effects of a final decree
that imperative considerations of public policy and of legal separation on the conjugal
of sound practice in the courts and adherence to property.chanroblesvirtualawlibrary chanrobles virtual law
the constitutional mandate of simplified, just, library
speedy and inexpensive determination of every
action can for considering such judgments for The death on November 30, 1979 of herein petitioner who
recovery of property with was declared the guilty spouse by the trial court, before the
accounting as final judgments which are duly liquidation of the conjugal property is effected, poses a new
appealable (and would therefore become final problem which can be resolved simply by the application of
and executory if not appealed within the the rules on intestate succession with respect to the
reglementary period) with the accounting as a properties of the deceased
mere incident of the judgment to be rendered petitioner.chanroblesvirtualawlibrary chanrobles virtual law
during the course of the appeal as provided in Rule library
39, section 4 or to be implemented at the
execution stage upon final affirmance on appeal of
Thus, the rules on dissolution and liquidation of the conjugal
the judgment (as in Court of Industrial Relations
partnership of gains under the aforecited provisions of the
unfair labor practice cases ordering reinstatement
Civil Code would be applied effective January 4, 1973 when
of the worker with accounting, computation and
the decree of legal separation became final. Upon the
payment of his backwages less earnings
liquidation and distribution conformably with the law
elsewhere during his layoff) and that the only
governing the effects of the final decree of legal separation,
reason given in Fuentebella for the contrary ruling,
the law on intestate succession should take over in the
viz, "the general harm that would follow from
disposition of whatever remaining properties have been
throwing the door open to multiplicity of appeals in
allocated to petitioner. This procedure involves details
a single case is of lesser import and
which properly pertain to the lower
consequence".
court.chanroblesvirtualawlibrary chanrobles virtual law
library
Considering the aforestated well-established
jurisprudence on the matter, the clear mandate of
The properties that may be allocated to the deceased
Article 106 of the Civil Code and the aforequoted
petitioner by virtue of the liquidation of the conjugal assets,
ruling in the Miranda case, the decision of the trial
shall be distributed in accordance with the laws of intestate
court dated January 4, 1973 decreeing the legal
succession in Special Proceedings No.
separation between then spouses Antonio
134.chanroblesvirtualawlibrary chanrobles virtual law library
Macadangdang and Filomena Gaviana
Macadangdang had long become final and
executory and the division of the conjugal property WHEREFORE, THIS PETITION IS HEREBY DISMISSED,
in a "supplemental decision" is a mere incident of WITH COSTS AGAINST PETITIONER'S
the decree of legal ESTATE.chanroblesvirtualawlibrary chanrobles virtual law
separation.chanroblesvirtualawlibrary chanrobles library
virtual law library
Since We have ruled on the finality of the judgment
decreeing the spouses' legal separation as of A.M. No. 02-11-12-SC March 4, 2003
January 4, 1973, the remaining issue for Our
resolution is the final disposition of their conjugal RE: PROPOSED RULE ON PROVISIONAL ORDERS
partnership of gains which partnership, by reason
of the final decree, had been automatically
RESOLUTION
dissolved. The law (Articles 106, 107 and 176 of
 Acting on the letter of the Chairman of the
Committee on Revision of the Rules of Court submitting for
this Court's consideration and approval the Proposed Rule
on Provisional Orders, the Court Resolved to APPROVED
the same.
The Rule shall take effect on March 15, 2003
following its publication in a newspaper of general
circulation not later than March 7, 2003
March 4, 2003
Davide Jr. C.J., Bellosillo, Puno, Vitug, Mendoza,
Panganiban, Quisumbing, Sandoval Gutierrez, Carpio,
Austria-Martinez, Carpio-Morales, Callejo, Sr. and Azcuna,
JJ.
Ynares-Santiago, on leave,
Corona, officially on leave.
RULE ON PROVISIONAL ORDERS
Section 1. When Issued, - Upon receipt of a verified
petition for declaration of absolute nullity of void marriage or
for annulment of voidable marriage, or for legal separation,
and at any time during the proceeding, the court, motu
proprio or upon application under oath of any of the parties,
guardian or designated custodian, may issue provisional
orders and protection orders with or without a hearing.
These orders may be enforced immediately, with or without
a bond, and for such period and under such terms" and
conditions as the court may deem necessary.
Section 2. Spousal Support. - In determining support for
the spouses, the court may be guided by the following rules:
(a) In the absence of adequate provisions in a written
agreement between the spouses, the spouses may be
supported from the properties of the absolute community or
the conjugal partnership.
(b) The court may award support to either spouse in such
amount and for such period of time as the court may deem
just and reasonable based on their standard of living during
the marriage.
(c) The court may likewise consider the following
factors: (1) whether the spouse seeking support is
the custodian of a child whose circumstances
make it appropriate for that spouse not to seek
outside employment; (2) the time necessary to
acquire sufficient education and training to enable
the spouse seeking support to find appropriate
employment, and that spouse's future earning
capacity; (3) the-duration of the marriage; (4) the
comparative financial resources of the spouses,
including their comparative earning abilities in the
labor market; (5) the needs and obligations of each
spouse; (6) the contribution of each spouse to the
marriage, including services rendered in
home-making, child care, education, and career
building of the other spouse; (7) the age and health
of the spouses; (8) the physical and emotional
conditions of the spouses; (9) the ability of the
supporting spouse to give support, taking into
account that spouse's earning capacity, earned
and unearned income, assets, and standard of
living; and (10) any other factor the court may
deem just and equitable.
(d) The Family Court may direct the deduction of
the provisional support from the salary of the
spouse.
Section 3. Child Support. - The common children
of the spouses shall be supported from the
properties of the absolute community or the
conjugal partnership.
Subject to the sound discretion of the
court, either parent or both may be ordered to give
an amount necessary for the support,
maintenance, and education of the child. It shall be
in proportion to the resources or means of the
giver and to the necessities of the recipient.
In determining the amount of provisional
support, the court may likewise consider the
following factors: (1) the financial resources of the
custodial and non-custodial parent and those of
the child; (2) the physical and emotional health of
the child and his or her special needs and
aptitudes; (3) the standard of living the child has
been accustomed to; (4) the non-monetary contributions
that the parents will make toward the care and well-being of
the child.
The Family Court may direct the deduction of the
provisional support from the salary of the parent.
Section 4. Child Custody. - In determining the right party or
person to whom the custody of the child of the parties may
be awarded pending the petition, the court shall consider
the best interests of the child and shall give paramount
consideration to the material and moral welfare of the child.
The court may likewise consider the following
factors: (a) the agreement of the parties; (b) the desire and
ability of each parent to foster an open and loving
relationship between the child and the other parent; (c) the
child's health, safety, and welfare; (d) any history of child or
spousal abase by the person seeking custody or who has
had any filial relationship with the child, including anyone
courting the parent; (e) the nature and frequency of contact
with both parents; (f) habitual use of alcohol or regulated
substances; (g) marital misconduct; (h) the most suitable
physical, emotional, spiritual, psychological and educational
environment; and (i) the preference of the child, if over
seven years of age and of sufficient discernment, unless the
parent chosen is unfit.
The court may award provisional custody in the
following order of preference: (1) to both parents jointly; (2)
to either parent taking into account all relevant
considerations under the foregoing paragraph, especially
the choice of the child over seven years of age, unless the
parent chosen is unfit; (3} to the surviving grandparent, or if
there are several of them, to the grandparent chosen by the
child over seven years of age and of sufficient discernment,
unless the grandparent is unfit or disqualified; (4) to the
eldest brother or sister over twenty-one years of age, unless
he or she is unfit or disqualified; (5) to the child's actual
custodian over twenty-one years of age, unless unfit or
disqualified; or (6) to any other person deemed by the court
suitable to provide proper care and guidance for the child.
The custodian temporarily designated by the" court
shall give the court and the parents five days notice of any
plan to change the residence of the child or take him out of
his residence for more than three days provided it does not
prejudice the visitation rights of the parents.
Section 5. Visitation Rights. - Appropriate visitation rights
shall be provided to the parent who is not awarded
provisional custody unless found unfit or disqualified by the
court. .
Section 6. Hold Departure Order. - Pending resolution of
the petition, no child of the parties shall be brought out of
the country without prior order from the court.
The court, motu proprio or upon application under
oath, may issue ex-parte a hold departure order, addressed
to the Bureau of Immigration and Deportation, directing it
not to allow the departure of the child from the Philippines
without the permission of the court.
The Family Court issuing the hold departure order
shall furnish the Department of Foreign Affairs and the
Bureau of Immigration and Deportation of the Department
of Justice a copy of the hold departure order issued within
twenty-four hours from the time of its issuance and through
the fastest available means of transmittal.
The hold-departure order shall contain the
following information:
(a) the complete name (including the middle name), the
date and place of birth, and the place of last residence of
the person against whom a hold-departure order has been
issued or whose departure from the country has been
enjoined;
(b) the complete title and docket number of the case in
which the hold departure was issued;
(c) the specific nature of the case; and
(d) the date of the hold-departure order.
If available, a recent photograph of the person
against whom a hold-departure order has been issued or
whose departure from the country has been enjoined
should also be included.
The court may recall the order. motu
proprio or upon verified motion of any of the parties
after summary hearing, subject to such terms and
conditions as may be necessary for the best
interests of the child.
Section 7. Order of Protection. - The court may
issue an Order of Protection requiring any person:
(a) to stay away from the home, school, business,
or place of employment of the child, other parent or
any other party, and to stay away from any other
specific place designated by the court;
(b) to refrain from harassing, intimidating, or
threatening such child or the other parent or any
person to whom custody of the child is awarded;
(c) to refrain from acts of commission or omission
that create an unreasonable risk to the health,
safety, or welfare of the child;
(d) to permit a parent, or a person entitled to
visitation by a court order or a separation
agreement, to visit the child at stated periods;
(e) to permit a designated party to enter the
residence during a specified period of time in order
to take persona! belongings not contested in a
proceeding pending with the Family Court;
(f) to comply with such other orders as are
necessary for the protection of the child.
Section 8. Administration of Common Property. -
If a spouse without just cause abandons the other
or-fails to comply with his or her obligations to the
family, the court may, upon application of the
aggrieved party under oath, issue a provisional
order appointing the applicant or a third person as
receiver or sole administrator of the common
property subject to such precautionary conditions it
may impose.
The receiver or administrator may not dispose of or
encumber any common property or specific separate
property of either spouse without prior authority of the court.
The provisional order issued by the court shall be
registered in the proper Register of Deeds and annotated in
all titles of properties subject of the receivership or
administration.
Section 9. Effectivity. - This Rule shall take effect on March
15, 2003 following its publication in a newspaper of general
circulation not later than March 7, 2003.
TITLE III
RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND
WIFE
Art. 68. The husband and wife are obliged to live together,
observe mutual love, respect and fidelity, and render mutual
help and support.
G.R. No. L-23482 August 30, 1968
ALFONSO LACSON, petitioner,
vs.
CARMEN SAN JOSE-LACSON and THE COURT OF
APPEALS, respondents.
-----------------------------
G.R. No. L-23767 August 30, 1968
CARMEN SAN JOSE-LACSON, plaintiff-appellant,
vs.
ALFONSO LACSON, defendant-appellee.
-----------------------------
G.R. No. L-24259 August 30, 1968
ALFONSO LACSON, petitioner-appellee,
vs.
CARMEN SAN JOSE-LACSON, petitioner-appellant.
Paredes, Poblador, Cruz and Nazareno for
respondent-appellant Carmen San Jose-Lacson.
Norberto Quisumbing for petitioner-appellee Alfonso
Lacson.
CASTRO, J.:
These three cases (G.R. L-23482, L-23767 and L-24259)
involving the same parties pose a common fundamental
issue the resolution of which will necessarily and
inescapably resolve all the other issues. Thus their joinder
in this decision.
The antecedent facts are not disputed.
Alfonso Lacson (hereinafter referred to as the petitioner
spouse) and Carmen San Jose-Lacson (hereinafter referred
to as the respondent spouse) were married on February 14,
1953. To them were born four children, all alive.
On January 9, 1963 the respondent spouse left the conjugal
home in Santa Clara Subdivision, Bacolod City, and
commenced to reside in Manila. She filed on March 12,
1963 a complaint docketed as civil case E-00030 in the
Juvenile and Domestic Relations Court of Manila
(hereinafter referred to as the JDRC) for custody of all their
children as well as support for them and herself.
However, the spouses, thru the assistance of their
respective attorneys, succeeded in reaching an amicable
settlement respecting custody of the children, support, and
separation of property. On April 27, 1963 they filed a joint
petition dated April 21, 1963, docketed as special
proceeding 6978 of the Court of First Instance of Negros
Occidental (hereinafter referred to as the CFI).
The important and pertinent portions of the petition,
embodying their amicable settlement, read as follows:
3. Petitioners have separated last January 9, 1963 when
petitioner Carmen San Jose-Lacson left their conjugal home
at the Santa Clara Subdivision, Bacolod City, did
not return, and decided to reside in Manila.
4. Petitioners have mutually agreed upon the
dissolution of their conjugal partnership subject to
judicial approval as required by Article 191 of the
Civil Code of the Philippines — the particular terms
and conditions of their mutual agreement being as
follows:
(a) There will be separation of property —
petitioner Carmen San Jose-Lacson hereby
waiving any and all claims for a share in property
that may be held by petitioner Alfonso Lacson
since they have acquired no property of any
consequence.
(b) Hereafter, each of them shall own, dispose of,
possess, administer and enjoy such separate
estate as they may acquire without the consent of
the other and all earnings from any profession,
business or industry as may be derived by each
petitioner shall belong to that petitioner
exclusively.
(c) The custody of the two elder children named
Enrique and Maria Teresa shall be awarded to
petitioner Alfonso Lacson and the custody of the
younger children named Gerrard and Ramon shall
be awarded to petitioner Carmen San
Jose-Lacson.
(d) Petitioner Alfonso Lacson shall pay petitioner
Carmen San Jose-Lacson a monthly allowance of
P300.00 for the support of the children in her
custody.
(e) Each petitioner shall have reciprocal rights of
visitation of the children in the custody of the other
at their respective residences and, during the
summer months, the two children in the custody of
each petitioner shall be given to the other except
that, for this year's summer months, all four
children shall be delivered to and remain with
petitioner Carmen San Jose-Lacson until June 15,
1963 — on which date, she shall return the two
elder children Enrique and Maria Teresa to petitioner
Alfonso Lacson — this judgment of course being subject to
enforcement by execution writ and contempt.
5. Petitioners have no creditors.
WHEREFORE, they respectfully pray that notice of this
petition be given to creditors and third parties pursuant to
Article 191 of the Civil Code of the Philippines and
thereafter that the Court enter its judicial approval of the
foregoing agreement for the dissolution of their conjugal
partnership and for separation of property, except that the
Court shall immediately approve the terms set out in
paragraph 4 above and embody the same in a judgment
immediately binding on the parties hereto to the end that
any non-compliance or violation of its terms by one party
shall entitle the other to enforcement by execution writ and
contempt even though the proceedings as to creditors have
not been terminated.".
Finding the foregoing joint petition to be "conformable to
law," the CFI (Judge Jose F. Fernandez, presiding) issued
an order on April 27, 1963, rendering judgment (hereinafter
referred to as the compromise judgment) approving and
incorporating in toto their compromise agreement. In
compliance with paragraph 4 (e) of their mutual agreement
(par. 3[e] of the compromise judgment), the petitioner
spouse delivered all the four children to the respondent
spouse and remitted money for their support.
On May 7, 1963 the respondent spouse filed in the JDRC a
motion wherein she alleged that she "entered into and
signed the ... Joint Petition as the only means by which she
could have immediate custody of the ... minor children who
are all below the age of 7," and thereafter prayed that she
"be considered relieved of the ... agreement pertaining to
the custody and visitation of her minor children ... and that
since all the children are now in her custody, the said
custody in her favor be confirmed pendente lite." On May 24,
1963 the petitioner spouse opposed the said motion and
moved to dismiss the complaint based, among other things,
on the grounds of res judicata and lis pendens. The JDRC
on May 28, 1963, issued an order which sustained the
petitioner spouse's plea of bar by prior judgment and lis
pendens, and dismissed the case. After the denial of her
motion for reconsideration, the respondent spouse
interposed an appeal to the Court of Appeals (CA-G.R. No.
32608-R) wherein she raised, among others, the issue of
validity or legality of the compromise agreement in
connection only with the custody of their minor children. On
October 14, 1964 the Court of Appeals certified the said
appeal to the Supreme Court (G.R. No. L-23767), since "no
hearing on the facts was ever held in the court below — no
evidence, testimonial or documentary, presented — only a
question of law pends resolution in the appeal." .
The respondent spouse likewise filed a motion dated May
15, 1963 for reconsideration of the compromise judgment
dated April 27, 1963 rendered in special proceeding 6978 of
the CFI, wherein she also alleged, among others, that she
entered into the joint petition as the only means by which
she could have immediate custody of her minor children,
and thereafter prayed the CFI to reconsider its judgment
pertaining to the custody and visitation of her minor children
and to relieve her from the said agreement. The petitioner
spouse opposed the said motion and, on June 1, 1963, filed
a motion for execution of the compromise judgment and a
charge for contempt. The CFI (Judge Jose R. Querubin,
presiding), in its order dated June 22, 1963, denied the
respondent spouse's motion for reconsideration, granted
the petitioner spouse's motion for execution, and ordered
that upon "failure on the part of Carmen San Jose-Lacson to
deliver the said children [i.e., to return the two older children
Enrique and Maria Teresa in accordance with her
agreement with Alfonso Lacson] to the special sheriff on or
before June 29, 1963, she may be held for contempt
pursuant to the provisions of Rule 39 sections 9 and 10, and
Rule 64 section 7 of the (old) Rules of Court." From the
aforesaid compromise judgment dated April 27, 1963 and
execution order dated June 22, 1963, the respondent
spouse interposed an appeal to the Court of Appeals
(CA-G.R. No. 32798-R) wherein she likewise questioned
the validity or legality of her agreement with the petitioner
spouse respecting custody of their children. On February 11,
1965 the Court of Appeals also certified the said appeal to
the Supreme Court (G.R. No. L-24259), since "no evidence
of any kind was introduced before the trial court and ...
appellant did not specifically ask to be allowed to present
evidence on her behalf." .
The respondent spouse also instituted certiorari
proceedings before the Court of Appeals (CA-G.R. No.
32384R), now the subject of an appeal by certiorari to this
Court (G.R. No. L-23482). In her petition for certiorari dated
June 27, 1963, she averred that the CFI (thru
Judge Querubin) committed grave abuse of
discretion and acted in excess of jurisdiction in
ordering the immediate execution of the
compromise judgment in its order of June 22, 1963,
thus in effect depriving her of the right to appeal.
She prayed for (1) the issuance of a writ of
preliminary injunction enjoining the respondents
therein and any person acting under them from
enforcing, by contempt proceedings and other
means, the writ of execution issued pursuant to the
order of the respondent Judge Querubin dated
June 22, 1963 in special proceeding 6978 of the
CFI, (2) the setting aside, after hearing, of the
compromise judgment dated April 27, 1963 and
the order dated June 22, 1963, and (3) the
awarding of the custody of Enrique and Maria
Teresa to her, their mother. As prayed for, the
Court of Appeals issued ex parte a writ of
preliminary injunction enjoining the enforcement of
the order dated June 22, 1963 for execution of the
compromise judgment rendered in special
proceeding 6978. The petitioner spouse filed an
urgent motion dated July 5, 1963 for the
dissolution of the writ of preliminary injunction ex
parte which urgent motion was denied by the Court
of Appeals in its resolution dated July 9, 1963. The
petitioner spouse likewise filed his answer. After
hearing, the Court of Appeals on May 11, 1964
promulgated in said certiorari case (CA-G.R. No.
32384-R) its decision granting the petition
for certiorari and declaring null and void both (a)
the compromise judgment dated April 27, 1963 in
so far as it relates to the custody and right of
visitation over the two children, Enrique and
Teresa, and (b) the order dated June 22, 1963 for
execution of said judgment. The petitioner spouse
moved to reconsider, but his motion for
reconsideration was denied by the Court of
Appeals in its resolution dated July 31, 1964. From
the decision dated May 11, 1964 and the
resolution dated July 31, 1964, the petitioner
spouse interposed an appeal to this Court, as
abovestated, and assigned the following errors:
(1) The Court of Appeals erred in annulling thru certiorari
the lower court's order of execution of the compromise
judgment.
(2) The Court of Appeals erred in resolving in the certiorari
case the issue of the legality of the compromise judgment
which is involved in two appeals, instead of the issue of
grave abuse of discretion in ordering its execution.
(3) The Court of Appeals erred in ruling that the
compromise agreement upon which the judgment is based
violates article 363 of the Civil Code. 1äwphï1.ñët
As heretofore adverted, the aforecited three appeals
converge on one focal issue: whether the compromise
agreement entered into by the parties and the judgment of
the CFI grounded on the said agreement, are conformable
to law.
We hold that the compromise agreement and the judgment
of the CFI grounded on the said agreement are valid with
respect to the separation of property of the spouses and the
dissolution of the conjugal partnership.
The law allows separation of property of the spouses and
the dissolution of their conjugal partnership provided judicial
sanction is secured beforehand. Thus the new Civil Code
provides:
In the absence of an express declaration in the marriage
settlements, the separation of property between spouses
during the marriage shall not take place save in virtue of a
judicial order. (Art. 190, emphasis supplied)
The husband and the wife may agree upon the dissolution
of the conjugal partnership during the marriage, subject to
judicial approval. All the creditors of the husband and of the
wife, as well as of the conjugal partnership, shall be notified
of any petition for judicial approval of the voluntary
dissolution of the conjugal partnership, so that any such
creditors may appear at the hearing to safeguard his
interests. Upon approval of the petition for dissolution of the
conjugal partnership, the court shall take such measures as
may protect the creditors and other third persons. (Art. 191,
par. 4, emphasis supplied).
In the case at bar, the spouses obtained judicial imprimatur
of their separation of property and the dissolution of their
conjugal partnership. It does not appeal that they have
creditors who will be prejudiced by the said arrangements.
It is likewise undisputed that the couple have been
separated in fact for at least five years - the wife's residence
being in Manila, and the husband's in the conjugal home in
Bacolod City. Therefore, inasmuch as a lengthy separation
has supervened between them, the propriety of severing
their financial and proprietary interests is manifest.
Besides, this Court cannot constrain the spouses to live
together, as
[I]t is not within the province of the courts of this country to
attempt to compel one of the spouses to cohabit with, and
render conjugal rights to, the other. .. At best such an order
can be effective for no other purpose than to compel the
spouse to live under the same roof; and the experience of
those countries where the courts of justice have assumed to
compel the cohabitation of married couple shows that the
policy of the practice is extremely questionable. (Arroyo v.
Vasquez de Arroyo, 42 Phil. 54, 60).
However, in so approving the regime of separation of
property of the spouses and the dissolution of their conjugal
partnership, this Court does not thereby accord recognition
to nor legalize the de facto separation of the spouses, which
again in the language of Arroyo v. Vasquez de Arroyo,
supra — is a "state which is abnormal and fraught with
grave danger to all concerned." We would like to douse the
momentary seething emotions of couples who, at the
slightest ruffling of domestic tranquility — brought about by
"mere austerity of temper, petulance of manners, rudeness
of language, a want of civil attention and accommodation,
even occasional sallies of passion" without more — would
be minded to separate from each other. In this jurisdiction,
the husband and the wife are obliged to live together,
observe mutual respect and fidelity, and render mutual help
and support (art. 109, new Civil Code). There is, therefore,
virtue in making it as difficult as possible for married couples
— impelled by no better cause than their whims and
caprices — to abandon each other's company.
'... For though in particular cases the repugnance
of the law to dissolve the obligations of matrimonial
cohabitation may operate with great severity upon
individuals, yet it must be carefully remembered
that the general happiness of the married life is
secured by its indissolubility. When people
understand that they must live together, except for
a very few reasons known to the law, they learn to
soften by mutual accommodation that yoke which
they know they cannot shake off; they become
good husbands and good wives from the necessity
of remaining husbands and wives; for necessity is
a powerful master in teaching the duties which it
imposes ..." (Evans vs. Evans, 1 Hag. Con., 35;
161 Eng. Reprint, 466, 467.) (Arroyo vs. Vasquez
de Arroyo, Id., pp. 58-59).
We now come to the question of the custody and
support of the children.
It is not disputed that it was the JDRC which first
acquired jurisdiction over the matter of custody
and support of the children. The complaint
docketed as civil case E-00030 in the JDRC was
filed by the respondent spouse on March 12, 1963,
whereas the joint petition of the parties docketed
as special proceeding 6978 in the CFI was filed on
April 27, 1963. However, when the respondent
spouse signed the joint petition on the same
matter of custody and support of the children and
filed the same with the CFI of Negros Occidental,
she in effect abandoned her action in the JDRC.
The petitioner spouse — who could have raised
the issue of lis pendens in abatement of the case
filed in the CFI, but did not do so - had the right,
therefore, to cite the decision of the CFI and to ask
for the dismissal of the action filed by the
respondent spouse in the JDRC, on the grounds
of res judicata and lis pendens. And the JDRC
acted correctly and justifiably in dismissing the
case for custody and support of the children based
on those grounds. For it is no defense against the
dismissal of the action that the case before the CFI
was filed later than the action before the JDRC,
considering:.
... [T]hat the Rules do not require as a ground for dismissal
of a complaint that there is a prior pending action. They
provide only that there is a pending action, not a pending
prior action. 1
We agree with the Court of Appeals, however, that the CFI
erred in depriving the mother, the respondent spouse, of the
custody of the two older children (both then below the age
of 7).
The Civil Code specifically commands in the second
sentence of its article 363 that "No mother shall be
separated from her child under seven years of age, unless
the court finds compelling reasons for such measure." The
rationale of this new provision was explained by the Code
Commission thus:
The general rule is recommended in order to avoid many a
tragedy where a mother has seen her baby torn away from
her. No man can sound the deep sorrows of a mother who
is deprived of her child of tender age. The exception
allowed by the rule has to be for "compelling reasons" for
the good of the child: those cases must indeed be rare, if
the mother's heart is not to be unduly hurt. If she has erred,
as in cases of adultery, the penalty of imprisonment and the
(relative) divorce decree will ordinarily be sufficient
punishment for her. Moreover, her moral dereliction will not
have any effect upon the baby who is as yet unable to
understand the situation." (Report of the Code Commission,
p. 12).
The use of the word shall2 in article 363 of the Civil Code,
coupled with the observations made by the Code
Commission in respect to the said legal provision,
underscores its mandatory character. It prohibits in no
uncertain: terms the separation of a mother and her child
below seven years, unless such separation is grounded
upon compelling reasons as determined by a court.
The order dated April 27, 1963 of the CFI, in so far as it
awarded custody of the two older children who were 6 and 5
years old, respectively, to the father, in effect sought to
separate them from their mother. To that extent therefore, it
was null and void because clearly violative of article 363 of
the Civil Code.
Neither does the said award of custody fall within the
exception because the record is bereft of any compelling
reason to support the lower court's order depriving the wife
of her minor children's company. True, the CFI stated in its
order dated June 22, 1963, denying the respondent
spouse's motion for reconsideration of its order dated April
27, 1963, that .
... If the parties have agreed to file a joint petition, it was
because they wanted to avoid the exposure of the bitter
truths which serve as succulent morsel for scandal mongers
and idle gossipers and to save their children from
embarrassment and inferiority complex which may
inevitably stain their lives. ..
If the parties agreed to submit the matter of custody of the
minor children to the Court for incorporation in the final
judgment, they purposely suppressed the "compelling
reasons for such measure" from appearing in the public
records. This is for the sake and for the welfare of the minor
children.".
But the foregoing statement is at best a mere hint that there
were compelling reasons. The lower court's order is
eloquently silent on what these compelling reasons are.
Needless to state, courts cannot proceed on mere
insinuations; they must be confronted with facts before they
can properly adjudicate.
It might be argued — and correctly — that since five years
have elapsed since the filing of these cases in 1963, the
ages of the four children should now be as follows: Enrique
— 11, Maria Teresa — 10, Gerrard — 9, and Ramon — 5.
Therefore, the issue regarding the award of the custody of
Enrique and Maria Teresa to the petitioner spouse has
become moot and academic. The passage of time has
removed the prop which supports the respondent spouse's
position.
Nonetheless, this Court is loath to uphold the couple's
agreement regarding the custody of the
children. 1äwphï1.ñët
Article 356 of the new Civil Code provides:
Every child:
(1) Is entitled to parental care;
(2) Shall receive at least elementary education;
(3) Shall be given moral and civic training by the
parents or guardian;
(4) Has a right to live in an atmosphere conducive
to his physical, moral and intellectual
development.
It is clear that the abovequoted legal provision
grants to every child rights which are not and
should not be dependent solely on the wishes,
much less the whims and caprices, of his parents.
His welfare should not be subject to the parents'
say-so or mutual agreement alone. Where, as in
this case, the parents are already separated in fact,
the courts must step in to determine in whose
custody the child can better be assured the right
granted to him by law. The need, therefore, to
present evidence regarding this matter, becomes
imperative. A careful scrutiny of the records
reveals that no such evidence was introduced in
the CFI. This latter court relied merely on the
mutual agreement of the spouses-parents. To be
sure, this was not a sufficient basis to determine
the fitness of each parent to be the custodian of
the children.
Besides, at least one of the children — Enrique,
the eldest — is now eleven years of age and
should be given the choice of the parent he wishes
to live with. This is the clear mandate of sec. 6,
Rule 99 of the Rules of Court which, states, inter
alia:
... When husband and wife are divorced or living
separately and apart from each other, and the
question as to the care, custody, and control of a
child or children of their marriage is brought before
a Court of First Instance by petition or as an
incident to any other proceeding, the court, upon
hearing testimony as may be pertinent, shall award
the care, custody and control of each such child as
will be for its best interest permitting the child to
choose which parent it prefers to live with if it be over ten
years of age, unless the parent so chosen be unfit to take
charge of the child by reason of moral depravity, habitual
drunkenness, incapacity, or poverty... (Emphasis supplied).
One last point regarding the matter of support for the
children — assuming that the custody of any or more of the
children will be finally awarded to the mother. Although the
spouses have agreed upon the monthly support of P150 to
be given by the petitioner spouse for each child, still this
Court must speak out its mind on the insufficiency of this
amount. We, take judicial notice of the devaluation of the
peso in 1962 and the steady skyrocketing of prices of all
commodities, goods, and services, not to mention the fact
that all the children are already of school age. We believe,
therefore, that the CFI may increase this amount of P150
according to the needs of each child.
With the view that we take of this case, we find it
unnecessary to pass upon the other errors assigned in the
three appeals.
ACCORDINGLY, the decision dated May 11, 1964 and the
resolution dated July 31, 1964 of the Court of Appeals in
CA-G.R. 32384-R (subject matter of G.R. L-23482), and the
orders dated May 28, 1963 and June 24, 1963 of the
Juvenile and Domestic Relations Court (subject matter of
G.R. L-23767) are affirmed. G.R. L-24259 is hereby
remanded to the Court of First Instance of Negros
Occidental for further proceedings, in accordance with this
decision. No pronouncement as to costs.
G.R. No. 127406 November 27, 2000
OFELIA P. TY, petitioner,
vs.
THE COURT OF APPEALS, and EDGARDO M.
REYES, respondents.
DECISION
QUISUMBING, J.:
This appeal seeks the reversal of the decision dated July 24,
1996, of the Court of Appeals in C.A. – G.R. CV 37897,
which affirmed the decision of the Regional Trial Court of
Pasig, Branch 160, declaring the marriage contract between
private respondent Edgardo M. Reyes and petitioner Ofelia
P. Ty null and void ab initio. It also ordered private
respondent to pay P15,000.00 as monthly support for their
children Faye Eloise Reyes and Rachel Anne Reyes.
As shown in the records of the case, private respondent
married Anna Maria Regina Villanueva in a civil ceremony
on March 29, 1977, in Manila. Then they had a church
wedding on August 27, 1977. However, on August 4, 1980,
the Juvenile and Domestic Relations Court of Quezon City
declared their marriage null and void ab initio for lack of a
valid marriage license. The church wedding on August 27,
1977, was also declared null and void ab initio for lack of
consent of the parties.
Even before the decree was issued nullifying his marriage
to Anna Maria, private respondent wed Ofelia P. Ty, herein
petitioner, on April 4, 1979, in ceremonies officiated by the
judge of the City Court of Pasay. On April 4, 1982, they also
had a church wedding in Makati, Metro Manila.
On January 3, 1991, private respondent filed a Civil Case
1853-J with the RTC of Pasig, Branch 160, praying that his
marriage to petitioner be declared null and void. He alleged
that they had no marriage license when they got married.
He also averred that at the time he married petitioner, he
was still married to Anna Maria. He stated that at the time
he married petitioner the decree of nullity of his marriage to
Anna Maria had not been issued. The decree of nullity of his
marriage to Anna Maria was rendered only on August 4,
1980, while his civil marriage to petitioner took place on
April 4, 1979.
Petitioner, in defending her marriage to private respondent,
pointed out that his claim that their marriage was contracted
without a valid license is untrue. She submitted their
Marriage License No. 5739990 issued at Rosario, Cavite on
April 3, 1979, as Exh. 11, 12 and 12-A. He did not question
this document when it was submitted in evidence. Petitioner
also submitted the decision of the Juvenile and Domestic
Relations Court of Quezon City dated August 4, 1980,
which declared null and void his civil marriage to Anna
Maria Regina Villanueva celebrated on March 29, 1977,
and his church marriage to said Anna Maria on August 27,
1977. These documents were submitted as evidence during
trial and, according to petitioner, are therefore deemed
sufficient proof of the facts therein. The fact that
the civil marriage of private respondent and
petitioner took place on April 4, 1979, before the
judgment declaring his prior marriage as null
and void is undisputed. It also appears
indisputable that private respondent and petitioner
had a church wedding ceremony on April 4, 1982.1
The Pasig RTC sustained private respondent’s
civil suit and declared his marriage to herein
petitioner null and void ab initio in its decision
dated November 4, 1991. Both parties appealed to
respondent Court of Appeals. On July 24, 1996,
the appellate court affirmed the trial court’s
decision. It ruled that a judicial declaration of nullity
of the first marriage (to Anna Maria) must first be
secured before a subsequent marriage could be
validly contracted. Said the appellate court:
We can accept, without difficulty, the doctrine cited
by defendant’s counsel that ‘no judicial decree is
necessary to establish the invalidity of void
marriages.’ It does not say, however, that a
second marriage may proceed even without a
judicial decree. While it is true that if a marriage is
null and void, ab initio, there is in fact no subsisting
marriage, we are unwilling to rule that the matter of
whether a marriage is valid or not is for each
married spouse to determine for himself – for this
would be the consequence of allowing a spouse to
proceed to a second marriage even before a
competent court issues a judicial decree of nullity
of his first marriage. The results would be
disquieting, to say the least, and could not have
been the intendment of even the now-repealed
provisions of the Civil Code on marriage.
xxx
WHEREFORE, upon the foregoing ratiocination,
We modify the appealed Decision in this wise:
1. The marriage contracted by plaintiff-appellant
[herein private respondent] Eduardo M. Reyes and
defendant-appellant [herein petitioner] Ofelia P. Ty
is declared null and void ab initio;
2. Plaintiff-appellant Eduardo M. Reyes is ordered to give
monthly support in the amount of P15,000.00 to his children
Faye Eloise Reyes and Rachel Anne Reyes from November
4, 1991; and
3. Cost against plaintiff-appellant Eduardo M. Reyes.
SO ORDERED.2
Petitioner’s motion for reconsideration was denied. Hence,
this instant petition asserting that the Court of Appeals
erred:
I.
BOTH IN THE DECISION AND THE RESOLUTION, IN
REQUIRING FOR THE VALIDITY OF PETITIONER’S
MARRIAGE TO RESPONDENT, A JUDICIAL DECREE
NOT REQUIRED BY LAW.
II
IN THE RESOLUTION, IN APPLYING THE RULING
IN DOMINGO VS. COURT OF APPEALS.
III
IN BOTH THE DECISION AND RESOLUTION IN NOT
CONSIDERING THE CIVIL EFFECTS OF THE
RELIGIOUS RATIFICATION WHICH USED THE SAME
MARRIAGE LICENSE.
IV
IN THE DECISION NOT GRANTING MORAL AND
EXEMPLARY DAMAGES TO THE
DEFENDANT-APPELLANT.
The principal issue in this case is whether the decree of
nullity of the first marriage is required before a subsequent
marriage can be entered into validly? To resolve this
question, we shall go over applicable laws and pertinent
cases to shed light on the assigned errors, particularly the
first and the second which we shall discuss jointly.
In sustaining the trial court, the Court of Appeals declared
the marriage of petitioner to private respondent null
and void for lack of a prior judicial decree of nullity of the
marriage between private respondent and Villanueva. The
appellate court rejected petitioner’s claim that People v.
Mendoza3 and People v. Aragon4 are applicable in this
case. For these cases held that where a marriage
is void from its performance, no judicial decree is necessary
to establish its invalidity. But the appellate court said these
cases, decided before the enactment of the Family Code
(E.O. No. 209 as amended by E.O No. 227), no longer
control. A binding decree is now needed and must be read
into the provisions of law previously obtaining.5
In refusing to consider petitioner’s appeal favorably, the
appellate court also said:
Terre v. Attorney Terre, Adm. Case No. 2349, 3 July 1992 is
mandatory precedent for this case. Although decided by the
High Court in 1992, the facts situate it within the regime of
the now-repealed provisions of the Civil Code, as in the
instant case.
xxx
For purposes of determining whether a person is legally free
to contract a second marriage, a judicial declaration that the
first marriage was null and void ab initio is essential. . . .6
At the outset, we must note that private respondent’s first
and second marriages contracted in 1977 and 1979,
respectively, are governed by the provisions of the Civil
Code. The present case differs significantly from the recent
cases of Bobis v. Bobis7 and Mercado v. Tan,8 both
involving a criminal case for bigamy where the bigamous
marriage was contracted during the effectivity of the Family
Code,9 under which a judicial declaration of nullity of
marriage is clearly required.
Pertinent to the present controversy, Article 83 of the Civil
Code provides that:
Art. 83. Any marriage subsequently contracted by any
person during the lifetime of the first spouse of such person
with any person other than such first spouse shall be illegal
and void from its performance, unless:
(1) The first marriage was annulled or dissolved; or
(2) The first spouse had been absent for seven
consecutive years at the time of the second
marriage without the spouse present having news
of the absentee being alive, or if the absentee,
though he has been absent for less than seven
years, is generally considered as dead and before
any person believed to be so by the spouse
present at the time of contracting such subsequent
marriage, or if the absentee is presumed dead
according to articles 390 and 391. The marriage so
contracted shall be valid in any of the three cases
until declared null and void by a competent court.
As to whether a judicial declaration of nullity of a
void marriage is necessary, the Civil Code
contains no express provision to that effect.
Jurisprudence on the matter, however, appears to
be conflicting.
Originally, in People v. Mendoza,10 and People v.
Aragon,11 this Court held that no judicial decree is
necessary to establish the nullity of a void
marriage. Both cases involved the same factual
milieu. Accused contracted a second marriage
during the subsistence of his first marriage. After
the death of his first wife, accused contracted a
third marriage during the subsistence of the
second marriage. The second wife initiated a
complaint for bigamy. The Court acquitted
accused on the ground that the second marriage is
void, having been contracted during the existence
of the first marriage. There is no need for a judicial
declaration that said second marriage is void.
Since the second marriage is void, and the first
one terminated by the death of his wife, there are
no two subsisting valid marriages. Hence, there
can be no bigamy. Justice Alex Reyes dissented in
both cases, saying that it is not for the spouses but
the court to judge whether a marriage is void or
not.
In Gomez v. Lipana,12 and Consuegra v.
Consuegra,13 however, we recognized the right of
the second wife who entered into the marriage in
good faith, to share in their acquired estate and in
proceeds of the retirement insurance of the husband. The
Court observed that although the second marriage can be
presumed to be void ab initio as it was celebrated while the
first marriage was still subsisting, still there was a need for
judicial declaration of such nullity (of the second marriage).
And since the death of the husband supervened before
such declaration, we upheld the right of the second wife to
share in the estate they acquired, on grounds of justice and
equity.14
But in Odayat v. Amante (1977),15 the Court adverted
to Aragon and Mendoza as precedents. We exonerated a
clerk of court of the charge of immorality on the ground that
his marriage to Filomena Abella in October of 1948 was
void, since she was already previously married to one
Eliseo Portales in February of the same year. The Court
held that no judicial decree is necessary to establish the
invalidity of void marriages. This ruling was affirmed
in Tolentino v. Paras.16
Yet again in Wiegel v. Sempio-Diy (1986),17 the Court held
that there is a need for a judicial declaration of nullity of a
void marriage. In Wiegel, Lilia married Maxion in 1972. In
1978, she married another man, Wiegel. Wiegel filed a
petition with the Juvenile Domestic Relations Court to
declare his marriage to Lilia as void on the ground of her
previous valid marriage. The Court, expressly relying
on Consuegra, concluded that:18
There is likewise no need of introducing evidence about the
existing prior marriage of her first husband at the time they
married each other, for then such a marriage though void
still needs according to this Court a judicial declaration
(citing Consuegra) of such fact and for all legal intents and
purposes she would still be regarded as a married woman
at the time she contracted her marriage with respondent
Karl Heinz Wiegel; accordingly, the marriage of petitioner
and respondent would be regarded VOID under the law.
(Emphasis supplied).
In Yap v. Court of Appeals,19 however, the Court found the
second marriage void without need of judicial declaration,
thus reverting to the Odayat, Mendoza and Aragon rulings.
At any rate, the confusion under the Civil Code was put to
rest under the Family Code. Our rulings in Gomez,
Consuegra, and Wiegel were eventually embodied in Article
40 of the Family Code.20 Article 40 of said Code expressly
required a judicial declaration of nullity of marriage –
Art. 40. The absolute nullity of a previous marriage may be
invoked for purposes of remarriage on the basis solely of a
final judgment declaring such previous marriage void.
In Terre v. Terre (1992)21 the Court, applying Gomez,
Consuegra and Wiegel, categorically stated that a judicial
declaration of nullity of a void marriage is necessary. Thus,
we disbarred a lawyer for contracting a bigamous marriage
during the subsistence of his first marriage. He claimed that
his first marriage in 1977 was void since his first wife was
already married in 1968. We held that Atty. Terre should
have known that the prevailing case law is that "for
purposes of determining whether a person is legally free to
contract a second marriage, a judicial declaration that the
first marriage was null and void ab initio is essential."
The Court applied this ruling in subsequent cases.
In Domingo v. Court of Appeals (1993),22 the Court held:
Came the Family Code which settled once and for all the
conflicting jurisprudence on the matter. A declaration of
absolute nullity of marriage is now explicitly required either
as a cause of action or a ground for defense. (Art. 39 of the
Family Code). Where the absolute nullity of a previous
marriage is sought to be invoked for purposes of contracting
a second marriage, the sole basis acceptable in law for said
projected marriage to be free from legal infirmity is a final
judgment declaring the previous marriage void. (Family
Code, Art. 40; See also arts. 11, 13, 42, 44, 48, 50, 52, 54,
86, 99, 147, 148).23
However, a recent case applied the old rule because of the
peculiar circumstances of the case. In Apiag v. Cantero,
(1997)24 the first wife charged a municipal trial judge of
immorality for entering into a second marriage. The judge
claimed that his first marriage was void since he was merely
forced into marrying his first wife whom he got pregnant. On
the issue of nullity of the first marriage, we
applied Odayat, Mendoza and Aragon. We held that since
the second marriage took place and all the children
thereunder were born before the promulgation
of Wiegel and the effectivity of the Family Code, there is no
need for a judicial declaration of nullity of the first
marriage pursuant to prevailing jurisprudence at
that time.
Similarly, in the present case, the second marriage
of private respondent was entered into in 1979,
before Wiegel. At that time, the prevailing rule was
found in Odayat, Mendoza and Aragon. The first
marriage of private respondent being void for lack
of license and consent, there was no need for
judicial declaration of its nullity before he could
contract a second marriage. In this case, therefore,
we conclude that private respondent’s second
marriage to petitioner is valid.
Moreover, we find that the provisions of the Family
Code cannot be retroactively applied to the
present case, for to do so would prejudice the
vested rights of petitioner and of her children. As
held in Jison v. Court of Appeals,25 the Family
Code has retroactive effect unless there be
impairment of vested rights. In the present case,
that impairment of vested rights of petitioner and
the children is patent. Additionally, we are not quite
prepared to give assent to the appellate court’s
finding that despite private respondent’s "deceit
and perfidy" in contracting marriage with petitioner,
he could benefit from her silence on the issue.
Thus, coming now to the civil effects of the church
ceremony wherein petitioner married private
respondent using the marriage license used three
years earlier in the civil ceremony, we find that
petitioner now has raised this matter properly.
Earlier petitioner claimed as untruthful private
respondent’s allegation that he wed petitioner but
they lacked a marriage license. Indeed we find
there was a marriage license, though it was the
same license issued on April 3, 1979 and used in
both the civil and the church rites. Obviously, the
church ceremony was confirmatory of their civil
marriage. As petitioner contends, the appellate
court erred when it refused to recognize the
validity and salutary effects of said canonical
marriage on a technicality, i.e. that petitioner had
failed to raise this matter as affirmative defense
during trial. She argues that such failure does not
prevent the appellate court from giving her defense
due consideration and weight. She adds that the interest of
the State in protecting the inviolability of marriage, as a
legal and social institution, outweighs such technicality. In
our view, petitioner and private respondent had complied
with all the essential and formal requisites for a valid
marriage, including the requirement of a valid license in the
first of the two ceremonies. That this license was used
legally in the celebration of the civil ceremony does not
detract from the ceremonial use thereof in the church
wedding of the same parties to the marriage, for we hold
that the latter rites served not only to ratify but also to fortify
the first. The appellate court might have its reasons for
brushing aside this possible defense of the defendant below
which undoubtedly could have tendered a valid issue, but
which was not timely interposed by her before the trial court.
But we are now persuaded we cannot play blind to the
absurdity, if not inequity, of letting the wrongdoer profit from
what the CA calls "his own deceit and perfidy."
On the matter of petitioner’s counterclaim for damages and
attorney’s fees.1âwphi1 Although the appellate court
admitted that they found private respondent acted
"duplicitously and craftily" in marrying petitioner, it did not
award moral damages because the latter did not adduce
evidence to support her claim.26
Like the lower courts, we are also of the view that no
damages should be awarded in the present case, but for
another reason. Petitioner wants her marriage to private
respondent held valid and subsisting. She is suing to
maintain her status as legitimate wife. In the same breath,
she asks for damages from her husband for filing a
baseless complaint for annulment of their marriage which
caused her mental anguish, anxiety, besmirched reputation,
social humiliation and alienation from her parents. Should
we grant her prayer, we would have a situation where the
husband pays the wife damages from conjugal or common
funds. To do so, would make the application of the law
absurd. Logic, if not common sense, militates against such
incongruity. Moreover, our laws do not comprehend an
action for damages between husband and wife merely
because of breach of a marital obligation.27 There are other
remedies.28
WHEREFORE, the petition is GRANTED. The assailed
Decision of the Court of Appeals dated July 24, 1996 and its
Resolution dated November 7, 1996, are reversed partially,
so that the marriage of petitioner Ofelia P. Ty and private
respondent Edgardo M. Reyes is hereby DECLARED
VALID AND SUBSISTING; and the award of the amount of
P15,000.00 is RATIFIED and MAINTAINED as monthly
support to their two children, Faye Eloise Reyes and Rachel
Anne Reyes, for as long as they are of minor age or
otherwise legally entitled thereto. Costs against private
respondent.
SO ORDERED.
G.R. No. L-39587 March 24, 1934
ALEKO E. LILIUS, ET AL., plaintiffs-appellants,
vs.
THE MANILA RAILROAD
COMPANY, defendant-appellant.
Harvey and O'Brien for plaintiffs-appellants.
Jose C. Abreu for defendant-appellant.
VILLA-REAL, J.:
This case involves two appeals, one by the defendant the
Manila Railroad Company, and the other by the plaintiffs
Aleko E. Lilius et al., from the judgment rendered by the
Court of First Instance of Manila, the dispositive part of
which reads as follows:
Wherefore, judgment is rendered ordering the defendant
company to pay to the plaintiffs, for the purposes above
stated, the total amount of P30,865, with the costs of the
suit. And although the suit brought by the plaintiffs has the
nature of a joint action, it must be understood that of the
amount adjudicated to the said plaintiffs in this judgment,
the sum of P10,000 personally belongs to the plaintiff Sonja
Maria Lilius; the sum of P5,000, to the plaintiff Brita
Marianne Lilius; the sum of P250, to Dr. Marfori of the
Calauan Hospital, Province of Laguna, and the balance to
the plaintiff Aleko E. Lilius.
In support of its appeal, the appellant the Manila Railroad
Company assigns nine alleged errors committed by the trial
court in its said judgment, which will be discussed in the
course of this decision.
As a ground of their appeal, the appellants Aleko E.
Lilius et al., in turn, assign two alleged errors as
committed by the same court a quo in its judgment
in question, which will be discussed later.
This case originated from a complaint filed by
Aleko E. Lilius et al., praying, under the facts
therein alleged, that the Manila Railroad Company
be ordered to pay to said plaintiffs, by way of
indemnity for material and moral damages
suffered by them through the fault and negligence
of the said defendant entity's employees, the sum
of P50,000 plus legal interest thereon from the
date of the filing of the complaint, with costs.
The defendant the Manila Railroad Company,
answering the complaint, denies each and every
allegation thereof and, by way of special defense,
alleges that the plaintiff Aleko E. Lilius, with the
cooperation of his wife and coplaintiff, negligently
and recklessly drove his car, and prays that it be
absolved from the complaint.
The following facts have been proven at the trial,
some without question and the others by a
preponderance of evidence, to wit:
The plaintiff Aleko E. Lilius has, for many years,
been a well-known and reputed journalist, author
and photographer. At the time of the collision in
question, he was a staff correspondent in the Far
East of the magazines The American Weekly of
New York and The Sphere of London.
Some of his works have been translated into
various languages. He had others in preparation
when the accident occurred. According to him, his
writings netted him a monthly income of P1,500.
He utilized the linguistic ability of his wife Sonja
Maria Lilius, who translated his articles and books
into English, German, and Swedish. Furthermore,
she acted as his secretary.
At about 7 o'clock on the morning of May 10, 1931,
the plaintiff, his wife Sonja Maria Lilius, and his
4-year old daughter Brita Marianne Lilius, left
Manila in their Studebaker car — driven by the said plaintiff
Aleko E. Lilius — for the municipality of Pagsanjan,
Province of Laguna, on a sight-seeing trip. It was the first
time that he made said trip although he had already been to
many places, driving his own car, in and outside the
Philippines. Where the road was clear and unobstructed,
the plaintiff drove at the rate of from 19 to 25 miles an hour.
Prior thereto, he had made the trip as far as Calauan, but
never from Calauan to Pagsanjan, via Dayap. He was
entirely unacquainted with the conditions of the road at said
points and had no knowledge of the existence of a railroad
crossing at Dayap. Before reaching the crossing in question,
there was nothing to indicate its existence and inasmuch as
there were many houses, shrubs and trees along the road,
it was impossible to see an approaching train. At about
seven or eight meters from the crossing, coming from
Calauan, the plaintiff saw an autotruck parked on the left
side of the road. Several people, who seemed to have
alighted from the said truck, were walking on the opposite
side. He slowed down to about 12 miles an hour and
sounded his horn for the people to get out of the way. With
his attention thus occupied, he did not see the crossing but
he heard two short whistles. Immediately afterwards, he
saw a huge black mass fling itself upon him, which turned
out to be locomotive No. 713 of the defendant company's
train coming eastward from Bay to Dayap station. The
locomotive struck the plaintiff's car right in the center. After
dragging the said car a distance of about ten meters, the
locomotive threw it upon a siding. The force of the impact
was so great that the plaintiff's wife and daughter were
thrown from the car and were picked up from the ground
unconscious and seriously hurt. In spite of the efforts of
engineer Andres Basilio, he was unable to stop the
locomotive until after it had gone about seventy meters from
the crossing.
On the afternoon of the same day, the plaintiff's entered St.
Paul's Hospital in the City of Manila where they were treated
by Dr. Waterous. The plaintiff Aleko E. Lilius suffered from a
fractured nose, a contusion above the left eye and a
lacerated wound on the right leg, in addition to multiple
contusions and scratches on various parts of the body. As a
result of the accident, the said plaintiff was highly nervous
and very easily irritated, and for several months he had
great difficulty in concentrating his attention on any matter
and could not write articles nor short stories for the
newspapers and magazines to which he was a contributor,
thus losing for some time his only means of livelihood.
The plaintiff Sonja Maria Lilius suffered from fractures of the
pelvic bone, the tibia and fibula of the right leg, below the
knee, and received a large lacerated wound on the
forehead. She underwent two surgical operations on the left
leg for the purpose of joining the fractured bones but said
operations notwithstanding, the leg in question still
continues deformed. In the opinion of Dr. Waterous, the
deformity is permanent in character and as a result the
plaintiff will have some difficulty in walking. The lacerated
wound, which she received on her forehead, has left a
disfiguring scar.
The child Brita Marianne Lilius received two lacerated
wounds, one on the forehead and the other on the left side
of the face, in addition to fractures of both legs, above and
below the knees. Her condition was serious and, for several
days, she was hovering between life and death. Due to a
timely and successful surgical operation, she survived her
wounds. The lacerations received by the child have left
deep scars which will permanently disfigure her face, and
because of the fractures of both legs, although now
completely cured, she will be forced to walk with some
difficulty and continuous extreme care in order to keep her
balance.
Prior to the accident, there had been no notice nor sign of
the existence of the crossing, nor was there anybody to
warn the public of approaching trains. The flagman or
switchman arrived after the collision, coming from the
station with a red flag in one hand and a green one in the
other, both of which were wound on their respective sticks.
The said flagman and switchman had many times absented
himself from his post at the crossing upon the arrival of a
train. The train left Bay station a little late and therefore
traveled at great speed.
Upon examination of the oral as well as of the documentary
evidence which the parties presented at the trial in support
of their respective contentions, and after taking into
consideration all the circumstances of the case, this court is
of the opinion that the accident was due to negligence on
the part of the defendant-appellant company, for not having
had on that occasion any semaphore at the crossing at
Dayap, to serve as a warning to passers-by of its existence
in order that they might take the necessary
precautions before crossing the railroad; and, on
the part of its employees — the flagman and
switchman, for not having remained at his post at
the crossing in question to warn passers-by of the
approaching train; the stationmaster, for failure to
send the said flagman and switchman to his post
on time; and the engineer, for not having taken the
necessary precautions to avoid an accident, in
view of the absence of said flagman and
switchman, by slackening his speed and
continuously ringing the bell and blowing the
whistle before arriving at the crossing. Although it
is probable that the defendant-appellant entity
employed the diligence of a good father of a family
in selecting its aforesaid employees, however, it
did not employ such diligence in supervising their
work and the discharge of their duties because,
otherwise, it would have had a semaphore or sign
at the crossing and, on previous occasions as well
as on the night in question, the flagman and
switchman would have always been at his post at
the crossing upon the arrival of a train. The
diligence of a good father of a family, which the law
requires in order to avoid damage, is not confined
to the careful and prudent selection of
subordinates or employees but includes inspection
of their work and supervision of the discharge of
their duties.
However, in order that a victim of an accident may
recover indemnity for damages from the person
liable therefor, it is not enough that the latter has
been guilty of negligence, but it is also necessary
that the said victim has not, through his own
negligence, contributed to the accident, inasmuch
as nobody is a guarantor of his neighbor's
personal safety and property, but everybody
should look after them, employing the care and
diligence that a good father of a family should
apply to his own person, to the members of his
family and to his property, in order to avoid any
damage. It appears that the herein
plaintiff-appellant Aleko E. Lilius took all
precautions which his skill and the presence of his
wife and child suggested to him in order that his
pleasure trip might be enjoyable and have a happy
ending, driving his car at a speed which prudence
demanded according to the circumstances and conditions
of the road, slackening his speed in the face of an obstacle
and blowing his horn upon seeing persons on the road, in
order to warn them of his approach and request them to get
out of the way, as he did when he came upon the truck
parked on the left hand side of the road seven or eight
meters from the place where the accident occurred, and
upon the persons who appeared to have alighted from the
said truck. If he failed to stop, look and listen before going
over the crossing, in spite of the fact that he was driving at
12 miles per hour after having been free from obstacles, it
was because, his attention having been occupied in
attempting to go ahead, he did not see the crossing in
question, nor anything, nor anybody indicating its existence,
as he knew nothing about it beforehand. The first and only
warning, which he received of the impending danger, was
two short blows from the whistle of the locomotive
immediately preceding the collision and when the accident
had already become inevitable.
In view of the foregoing considerations, this court is of the
opinion that the defendant the Manila Railroad Company
alone is liable for the accident by reason of its own
negligence and that of its employees, for not having
employed the diligence of a good father of a family in the
supervision of the said employees in the discharge of their
duties.
The next question to be decided refers to the sums of
money fixed by the court a quo as indemnities for damages
which the defendant company should pay to the
plaintiffs-appellants.
With respect to the plaintiff-appellant Aleko E. Lilius,
although this court believes his claim of a net income of
P1,500 a month to be somewhat exaggerated, however, the
sum of P5,000, adjudicated to him by the trial court as
indemnity for damages, is reasonable.
As to the sum of P10,635 which the court awards to the
plaintiffs by way of indemnity for damages, the different
items thereof representing doctor's fees, hospital and
nursing services, loss of personal effects and torn clothing,
have duly been proven at the trial and the sum in question is
not excessive, taking into consideration the circumstances
in which the said expenses have been incurred.
Taking into consideration the fact that the plaintiff Sonja
Maria Lilius, wife of the plaintiff Aleko E. Lilius is — in the
language of the court, which saw her at the trial — "young
and beautiful and the big scar, which she has on her
forehead caused by the lacerated wound received by her
from the accident, disfigures her face and that the fracture
of her left leg has caused a permanent deformity which
renders it very difficult for her to walk", and taking into
further consideration her social standing, neither is the sum
of P10,000, adjudicated to her by the said trial court by way
of indemnity for patrimonial and moral damages, excessive.
In the case of Gutierrez vs. Gutierrez (56 Phil., 177), the
right leg of the plaintiff Narciso Gutierrez was fractured as a
result of a collision between the autobus in which he was
riding and the defendant's car, which fractured required
medical attendance for a considerable period of time. On
the day of the trial the fracture had not yet completely
healed but it might cause him permanent lameness. The
trial court sentenced the defendants to indemnify him in the
sum of P10,000 which this court reduced to P5,000, in spite
of the fact that the said plaintiff therein was neither young
nor good-looking, nor had he suffered any facial deformity,
nor did he have the social standing that the herein
plaintiff-appellant Sonja Maria Lilius enjoys.1ªvvphi1.ne+
As to the indemnity of P5,000 in favor of the child Brita
Marianne Lilius, daughter of Aleko E. Lilius and Sonja Maria
Lilius, neither is the same excessive, taking into
consideration the fact that the lacerations received by her
have left deep scars that permanently disfigure her face and
that the fractures of both her legs permanently render it
difficult for her to walk freely, continuous extreme care being
necessary in order to keep her balance in addition to the
fact that all of this unfavorably and to a great extent affect
her matrimonial future.
With respect to the plaintiffs' appeal, the first question to be
decided is that raised by the plaintiff Aleko E. Lilius relative
to the insufficiency of the sum of P5,000 which the trial court
adjudicated to him by way of indemnity for damages
consisting in the loss of his income as journalist and author
as a result of his illness. This question has impliedly been
decided in the negative when the defendant-appellant
entity's petition for the reduction of said indemnity was
denied, declaring it to be reasonable.
As to the amount of P10,000 claimed by the
plaintiff Aleko E. Lilius as damages for the loss of
his wife's services in his business as journalist and
author, which services consisted in going over his
writings, translating them into English, German
and Swedish, and acting as his secretary, in
addition to the fact that such services formed part
of the work whereby he realized a net monthly
income of P1,500, there is no sufficient evidence
of the true value of said services nor to the effect
that he needed them during her illness and had to
employ a translator to act in her stead.
The plaintiff Aleko E. Lilius also seeks to recover
the sum of P2,500 for the loss of what is called
Anglo-Saxon common law "consortium" of his wife,
that is, "her services, society and conjugal
companionship", as a result of personal injuries
which she had received from the accident now
under consideration.
In the case of Goitia vs. Campos Rueda (35 Phil.,
252, 255, 256), this court, interpreting the
provisions of the Civil Marriage Law of 1870, in
force in these Islands with reference to the mutual
rights and obligations of the spouses, contained in
articles 44-48 thereof, said as follows:
The above quoted provisions of the Law of Civil
Marriage and the Civil Code fix the duties and
obligations of the spouses. The spouses must be
faithful to, assist, and support each other. The
husband must live with and protect his wife. The
wife must obey and live with her husband and
follow him when he changes his domicile or
residence, except when he removes to a foreign
country. . . .
Therefore, under the law and the doctrine of this
court, one of the husband's rights is to count on his
wife's assistance. This assistance comprises the
management of the home and the performance of
household duties, including the care and education
of the children and attention to the husband upon
whom primarily devolves the duty of supporting the
family of which he is the head. When the wife's
mission was circumscribed to the home, it was not
difficult to assume, by virtue of the marriage alone, that she
performed all the said tasks and her physical incapacity
always redounded to the husband's prejudice inasmuch as
it deprived him of her assistance. However, nowadays when
women, in their desire to be more useful to society and to
the nation, are demanding greater civil rights and are
aspiring to become man's equal in all the activities of life,
commercial and industrial, professional and political, many
of them spending their time outside the home, engaged in
their businesses, industry, profession and within a short
time, in politics, and entrusting the care of their home to a
housekeeper, and their children, if not to a nursemaid, to
public or private institutions which take charge of young
children while their mothers are at work, marriage has
ceased to create the presumption that a woman complies
with the duties to her husband and children, which the law
imposes upon her, and he who seeks to collect indemnity
for damages resulting from deprivation of her domestic
services must prove such services. In the case under
consideration, apart from the services of his wife Sonja
Maria Lilius as translator and secretary, the value of which
has not been proven, the plaintiff Aleko E. Lilius has not
presented any evidence showing the existence of domestic
services and their nature, rendered by her prior to the
accident, in order that it may serve as a basis in estimating
their value.
Furthermore, inasmuch as a wife's domestic assistance and
conjugal companionship are purely personal and voluntary
acts which neither of the spouses may be compelled to
render (Arroyo vs. Vazquez de Arroyo, 42 Phil., 54), it is
necessary for the party claiming indemnity for the loss of
such services to prove that the person obliged to render
them had done so before he was injured and that he would
be willing to continue rendering them had he not been
prevented from so doing.
In view of the foregoing considerations this court is of the
opinion and so holds: (1) That a railroad company which
has not installed a semaphore at a crossing an does not see
to it that its flagman and switchman faithfully complies with
his duty of remaining at the crossing when a train arrives, is
guilty of negligence and is civilly liable for damages suffered
by a motorist and his family who cross its line without
negligence on their part; (2) that an indemnity of P10,000
for a permanent deformity on the face and on the left leg,
suffered by a young and beautiful society woman, is not
excessive; (3) that an indemnity of P5,000 for a permanent
deformity on the face and legs of a four-year old girl
belonging to a well-to-do family, is not excessive; and (4)
that in order that a husband may recover damages for
deprivation of his wife's assistance during her illness from
an accident, it is necessary for him to prove the existence of
such assistance and his wife's willingness to continue
rendering it had she not been prevented from so doing by
her illness.
The plaintiffs-appellants are entitled to interest of 6 percent
per annum on the amount of the indemnities adjudicated to
them, from the date of the appealed judgment until this
judgment becomes final, in accordance with the provisions
of section 510 of Act No. 190.
Wherefore, not finding any error in the judgment appealed
from, it is hereby affirmed in toto, with the sole modification
that interest of 6 per cent per annum from the date of the
appealed judgment until this judgment becomes final will be
added to the indemnities granted, with the costs of both
instances against the appellant. So ordered.
Section 1. Short Title. - This Act shall be known as "The
Anti-Rape Law of 1997."
Sec. 2. Rape as a Crime Against Persons. - The crime of
rape shall hereafter be classified as a Crime Against
Persons under Title Eight of Act No. 3815, as amended,
otherwise known as the Revised Penal Code. Accordingly,
there shall be incorporated into Title Eight of the same Code
a new chapter to be known as Chapter Three on Rape, to
read as follows:
"Chapter Three
"Rape
"Article 266-A. Rape: When And How Committed. -
Rape is committed:
"1) By a man who shall have carnal knowledge of a
woman under any of the following circumstances:
"a) Through force, threat, or intimidation;
"b) When the offended party is deprived of reason or
otherwise unconscious;
"c) By means of fraudulent machination or grave
abuse of authority; and
"d) When the offended party is under twelve (12)
years of age or is demented, even though none of
the circumstances mentioned above be present.
"2) By any person who, under any of the
circumstances mentioned in paragraph 1 hereof,
shall commit an act of sexual assault by inserting
his penis into another person's mouth or anal
orifice, or any instrument or object, into the genital
or anal orifice of another person.
"Article 266-B. Penalty. - Rape under paragraph 1
of the next preceding article shall be punished by
reclusion perpetua.
"Whenever the rape is committed with the use of a
deadly weapon or by two or more persons, the
penalty shall be reclusion perpetua to death.
"When by reason or on the occasion of the rape,
the victim has become insane, the penalty shall
become reclusion perpetua to death.
"When the rape is attempted and a homicide is
committed by reason or on the occasion thereof,
the penalty shall be reclusion perpetua to death.
"When by reason or on the occasion ofthe rape,
homicide is committed, the penalty shall be death.
"The death penalty shall also be imposed if the
crime of rape is committed with any of the following
aggravating/qualifying circumstances:
"l) When the victim is under eighteen (18) years of
age and the offender is a parent, ascendant,
step-parent, guardian, relative by consanguinity or
affinity within the third civil degree, or the
common-law spouse of the parent of the victim;
"2) When the victim is under the custody of the
police or military authorities or any law
enforcement or penal institution;
"3) When the rape is committed in full view of the spouse,
parent, any of the children or other relatives within the third
civil degree of consanguinity;
"4) When the victim is a religious engaged in legitimate
religious vocation or calling and is personally known to be
such by the offender before or at the time of the commission
of the crime;
"5) When the victim is a child below seven (7) years old;
"6) When the offender knows that he is afflicted with the
Human Immuno-Deficiency Virus (HIV)/Acquired Immune
Deficiency Syndrome (AIDS) or any other sexually
transmissible disease and the virus or disease is
transmitted to the victim;
"7) When committed by any member of the Armed Forces of
the Philippines or para-military units thereof or the
Philippine National Police or any law enforcement agency
or penal institution, when the offender took advantage of his
position to facilitate the commission of the crime;
"8) When by reason or on the occasion of the rape,
the victim has suffered permanent physical mutilation or
disability;
"9) When the offender knew of the pregnancy of the
offended party at the time of the commission of the crime;
and
"10) When the offender knew of the mental disability,
emotional disorder and/or physical handicap of the offended
party at the time of the commission of the crime.
"Rape under paragraph 2 of the next preceding article shall
be punished by prision mayor.
"Whenever the rape is committed with the use of a deadly
weapon or by two or more persons, the penalty shall be
prision mayor to reclusion temporal.
"When by reason or on the occasion of the rape, the victim
has become insane, the penalty shall be reclusion temporal.
"When the rape is attempted and a homicide is committed
by reason or on the occasion thereof, the penalty shall be
reclusion temporal to reclusion perpetua.
"When by reason or on the occasion ofthe rape, homicide is
committed, the penalty shall be reclusion perpetua.
"Reclusion temporal shall be imposed if the rape is
committed with any of the ten aggravating/ qualifying
circumstances mentioned in this article.
"Article 266-C. Effect of Pardon. - The subsequent valid
marriage between the offended party shall extinguish the
criminal action or the penalty imposed.
"In case it is the legal husband who is the offender, the
subsequent forgiveness by the wife as the offended party
shall extinguish the criminal action or the penalty: Provided,
That the crime shall not be extinguished or the penalty shall
not be abated if the marriage is void ab initio.
"Article 266-D. Presumptions. - Any physical overt act
manifesting resistance against the act of rape in any degree
from the offended party, or where the offended party is so
situated as to render her/him incapable of giving valid
consent, may be accepted as evidence in the prosecution of
the acts punished under Article 266-A."
Sec. 3. Separability Clause. - If any part, Sec., or provision
of this Act is declared invalid or unconstitutional, the other
parts thereof not affected thereby shall remain valid.
Sec. 4. Repealing Clause. - Article 336 of Act No. 3815, as
amended, and all laws, acts, presidential decrees,
executive orders, administrative orders, rules and
regulations inconsistent with or contrary to the provisions of
this Act are deemed amended, modified or repealed
accordingly.
Sec. 5. Effectivity. - This Act shall take effect fifteen (15)
days after completion of its publication in two (2)
newspapers of general circulation.
Art. 73. Either spouse may exercise any legitimate
profession, occupation, business or activity without the
consent of the other. The latter may object only on
valid, serious, and moral grounds.
In case of disagreement, the court shall decide
whether or not:
(1) The objection is proper; and
(2) Benefit has occurred to the family prior to the
objection or thereafter. If the benefit accrued prior
to the objection, the resulting obligation shall be
enforced against the separate property of the
spouse who has not obtained consent.
The foregoing provisions shall not prejudice the
rights of creditors who acted in good faith. (117a)
G.R. No. 118305 February 12, 1998
AYALA INVESTMENT & DEVELOPMENT CORP.
and ABELARDO MAGSAJO, petitioners,
vs.
COURT OF APPEALS and SPOUSES ALFREDO
& ENCARNACION CHING, respondents.
MARTINEZ, J.:
Under Article 161 of the Civil Code, what debts
and obligations contracted by the husband alone
are considered "for the benefit of the conjugal
partnership" which are chargeable against the
conjugal partnership? Is a surety agreement or an
accommodation contract entered into by the
husband in favor of his employer within the
contemplation of the said provision?
These are the issues which we will resolve in this
petition for review.
The petitioner assails the decision dated April 14,
1994 of the respondent Court of Appeals in
"Spouses Alfredo and Encarnacion Ching
vs. Ayala Investment and Development
Corporation, et. al.," docketed as CA-G.R. CV No.
29632,1 upholding the decision of the Regional Trial Court
of Pasig, Branch 168, which ruled that the conjugal
partnership of gains of respondents-spouses Alfredo and
Encarnacion Ching is not liable for the payment of the debts
secured by respondent-husband Alfredo Ching.
A chronology of the essential antecedent facts is necessary
for a clear understanding of the case at bar.
Philippine Blooming Mills (hereinafter referred to as PBM)
obtained a P50,300,000.00 loan from petitioner Ayala
Investment and Development Corporation (hereinafter
referred to as AIDC). As added security for the credit line
extended to PBM, respondent Alfredo Ching, Executive
Vice President of PBM, executed security agreements on
December 10, 1980 and on March 20, 1981 making himself
jointly and severally answerable with PBM's indebtedness
to AIDC.
PBM failed to pay the loan. Thus, on July 30, 1981, AIDC
filed a case for sum of money against PBM and
respondent-husband Alfredo Ching with the then Court of
First Instance of Rizal (Pasig), Branch VIII, entitled "Ayala
Investment and Development Corporation vs. Philippine
Blooming Mills and Alfredo Ching," docketed as Civil Case
No. 42228.
After trial, the court rendered judgment ordering PBM and
respondent-husband Alfredo Ching to jointly and severally
pay AIDC the principal amount of P50,300,000.00 with
interests.
Pending appeal of the judgment in Civil Case No. 42228,
upon motion of AIDC, the lower court issued a writ of
execution pending appeal. Upon AIDC's putting up of an
P8,000,000.00 bond, a writ of execution dated May 12,
1982 was issued. Thereafter, petitioner Abelardo Magsajo,
Sr., Deputy Sheriff of Rizal and appointed sheriff in Civil
Case No. 42228, caused the issuance and service upon
respondents-spouses of a notice of sheriff sale dated May
20, 1982 on three (3) of their conjugal properties. Petitioner
Magsajo then scheduled the auction sale of the properties
levied.
On June 9, 1982, private respondents filed a case of
injunction against petitioners with the then Court of First
Instance of Rizal (Pasig), Branch XIII, to enjoin the auction
sale alleging that petitioners cannot enforce the judgment
against the conjugal partnership levied on the ground that,
among others, the subject loan did not redound to the
benefit of the said conjugal partnership. 2 Upon application
of private respondents, the lower court issued a temporary
restraining order to prevent petitioner Magsajo from
proceeding with the enforcement of the writ of execution
and with the sale of the said properties at public auction.
AIDC filed a petition for certiorari before the Court of
Appeals,3 questioning the order of the lower court enjoining
the sale. Respondent Court of Appeals issued a Temporary
Restraining Order on June 25, 1982, enjoining the lower
court4 from enforcing its Order of June 14, 1982, thus
paving the way for the scheduled auction sale of
respondents-spouses conjugal properties.
On June 25, 1982, the auction sale took place. AIDC being
the only bidder, was issued a Certificate of Sale by
petitioner Magsajo, which was registered on July 2, 1982.
Upon expiration of the redemption period, petitioner sheriff
issued the final deed of sale on August 4, 1982 which was
registered on August 9, 1983.
In the meantime, the respondent court, on August 4, 1982,
decided CA-G.R. SP No. 14404, in this manner:
WHEREFORE, the petition for certiorari in this case is
granted and the challenged order of the respondent Judge
dated June 14, 1982 in Civil Case No. 46309 is hereby set
aside and nullified. The same petition insofar as it seeks to
enjoin the respondent Judge from proceeding with Civil
Case No. 46309 is, however, denied. No pronouncement is
here made as to costs. . . . 5
On September 3, 1983, AIDC filed a motion to dismiss the
petition for injunction filed before Branch XIII of the CFI of
Rizal (Pasig) on the ground that the same had become
moot and academic with the consummation of the sale.
Respondents filed their opposition to the motion arguing,
among others, that where a third party who claim is
ownership of the property attached or levied upon, a
different legal situation is presented; and that in this case,
two (2) of the real properties are actually in the
name of Encarnacion Ching, a non-party to Civil
Case No. 42228.
The lower court denied the motion to dismiss.
Hence, trial on the merits proceeded. Private
respondents presented several witnesses. On the
other hand, petitioners did not present any
evidence.
On September 18, 1991, the trial court
promulgated its decision declaring the sale on
execution null and void. Petitioners appealed to
the respondent court, which was docketed as
CA-G.R. CV No. 29632.
On April 14, 1994, the respondent court
promulgated the assailed decision, affirming the
decision of the regional trial court. It held that:
The loan procured from respondent-appellant
AIDC was for the advancement and benefit of
Philippine Blooming Mills and not for the benefit of
the conjugal partnership of petitioners-appellees.
xxx xxx xxx
As to the applicable law, whether it is Article 161 of
the New Civil Code or Article 1211 of the Family
Code-suffice it to say that the two provisions are
substantially the same. Nevertheless, We agree
with the trial court that the Family Code is the
applicable law on the matter . . . . . . .
Article 121 of the Family Code provides that "The
conjugal partnership shall be liable for: . . . (2) All
debts and obligations contracted during the
marriage by the designated Administrator-Spouse
for the benefit of the conjugal partnership of
gains . . . ." The burden of proof that the debt was
contracted for the benefit of the conjugal
partnership of gains, lies with the creditor-party
litigant claiming as such. In the case at bar,
respondent-appellant AIDC failed to prove that the
debt was contracted by appellee-husband, for the
benefit of the conjugal partnership of gains.
The dispositive portion of the decision reads:
WHEREFORE, in view of all the foregoing, judgment is
hereby rendered DISMISSING the appeal. The decision of
the Regional Trial Court is AFFIRMED in toto.6
Petitioner filed a Motion for Reconsideration which was
denied by the respondent court in a Resolution dated
November 28, 1994.7
Hence, this petition for review. Petitioner contends that the
"respondent court erred in ruling that the conjugal
partnership of private respondents is not liable for the
obligation by the respondent-husband."
Specifically, the errors allegedly committed by the
respondent court are as follows:
I. RESPONDENT COURT ERRED IN RULING THAT THE
OBLIGATION INCURRED RESPONDENT HUSBAND DID
NOT REDOUND TO THE BENEFIT OF THE CONJUGAL
PARTNERSHIP OF THE PRIVATE RESPONDENT.
II. RESPONDENT COURT ERRED IN RULING THAT THE
ACT OF RESPONDENT HUSBAND IN SECURING THE
SUBJECT LOAN IS NOT PART OF HIS INDUSTRY,
BUSINESS OR CAREER FROM WHICH HE SUPPORTS
HIS FAMILY.
Petitioners in their appeal point out that there is no need to
prove that actual benefit redounded to the benefit of the
partnership; all that is necessary, they say, is that the
transaction was entered into for the benefit of the conjugal
partnership. Thus, petitioners aver that:
The wordings of Article 161 of the Civil Code is very clear:
for the partnership to be held liable, the husband must have
contracted the debt "for the benefit of the partnership, thus:
Art. 161. The conjugal partnership shall be liable for:
1) all debts and obligations contracted by the husband for
the benefit of the conjugal partnership . . . .
There is a difference between the phrases: "redounded to
the benefit of" or "benefited from" (on the one hand) and "for
the benefit of (on the other). The former require that actual
benefit must have been realized; the latter requires only that
the transaction should be one which normally would
produce benefit to the partnership, regardless of whether or
not actual benefit accrued.8
We do not agree with petitioners that there is a difference
between the terms "redounded to the benefit of" or
"benefited from" on the one hand; and "for the benefit of" on
the other. They mean one and the same thing. Article 161 (1)
of the Civil Code and Article 121 (2) of the Family Code are
similarly worded, i.e., both use the term "for the benefit of."
On the other hand, Article 122 of the Family Code provides
that "The payment of personal debts by the husband or the
wife before or during the marriage shall not be charged to
the conjugal partnership except insofar as they redounded
to the benefit of the family." As can be seen, the terms are
used interchangeably.
Petitioners further contend that the ruling of the respondent
court runs counter to the pronouncement of this Court in the
case of Cobb-Perez vs. Lantin,9 that the husband as head
of the family and as administrator of the conjugal
partnership is presumed to have contracted obligations for
the benefit of the family or the conjugal partnership.
Contrary to the contention of the petitioners, the case of
Cobb-Perez is not applicable in the case at bar. This Court
has, on several instances, interpreted the term "for the
benefit of the conjugal partnership."
In the cases of Javier vs. Osmeña, 10 Abella de Diaz
vs. Erlanger & Galinger, Inc., 11 Cobb-Perez
vs. Lantin 12 and G-Tractors, Inc. vs. Court of
Appeals, 13 cited by the petitioners, we held that:
The debts contracted by the husband during the marriage
relation, for and in the exercise of the industry or profession
by which he contributes toward the support of his family, are
not his personal and private debts, and the products or
income from the wife's own property, which, like those of
her husband's, are liable for the payment of the marriage
expenses, cannot be excepted from the payment of such
debts. (Javier)
The husband, as the manager of the partnership
(Article 1412, Civil Code), has a right to embark
the partnership in an ordinary commercial
enterprise for gain, and the fact that the wife may
not approve of a venture does not make it a private
and personal one of the husband. (Abella de Diaz)
Debts contracted by the husband for and in the
exercise of the industry or profession by which he
contributes to the support of the family, cannot be
deemed to be his exclusive and private debts.
(Cobb-Perez).
. . . if he incurs an indebtedness in the legitimate
pursuit of his career or profession or suffers losses
in a legitimate business, the conjugal partnership
must equally bear the indebtedness and the losses,
unless he deliberately acted to the prejudice of his
family. (G-Tractors)
However, in the cases of Ansaldo vs. Sheriff of
Manila, Fidelity Insurance & Luzon Insurance
Co.,14 Liberty Insurance Corporation
vs. Banuelos, 15 and Luzon Surety Inc. vs. De
Garcia, 16 cited by the respondents, we ruled that:
The fruits of the paraphernal property which form
part of the assets of the conjugal partnership, are
subject to the payment of the debts and expenses
of the spouses, but not to the payment of the
personal obligations (guaranty agreements) of the
husband, unless it be proved that such obligations
were productive of some benefit to the family."
(Ansaldo; parenthetical phrase ours.)
When there is no showing that the execution of an
indemnity agreement by the husband redounded
to the benefit of his family, the undertaking is not a
conjugal debt but an obligation personal to him.
(Liberty Insurance)
In the most categorical language, a conjugal
partnership under Article 161 of the new Civil Code
is liable only for such "debts and obligations
contracted by the husband for the benefit of the
conjugal partnership." There must be the requisite
showing then of some advantage which clearly accrued to
the welfare of the spouses. Certainly, to make a conjugal
partnership respond for a liability that should appertain to
the husband alone is to defeat and frustrate the avowed
objective of the new Civil Code to show the utmost concern
for the solidarity and well-being of the family as a unit. The
husband, therefore, is denied the power to assume
unnecessary and unwarranted risks to the financial stability
of the conjugal partnership. (Luzon Surety, Inc.)
From the foregoing jurisprudential rulings of this Court, we
can derive the following conclusions:
(A) If the husband himself is the principal obligor in the
contract, i.e., he directly received the money and services to
be used in or for his own business or his own profession,
that contract falls within the term . . . . obligations for the
benefit of the conjugal partnership." Here, no actual benefit
may be proved. It is enough that the benefit to the family is
apparent at the time of the signing of the contract. From the
very nature of the contract of loan or services, the family
stands to benefit from the loan facility or services to be
rendered to the business or profession of the husband. It is
immaterial, if in the end, his business or profession fails or
does not succeed. Simply stated, where the husband
contracts obligations on behalf of the family business, the
law presumes, and rightly so, that such obligation will
redound to the benefit of the conjugal partnership.
(B) On the other hand, if the money or services are given to
another person or entity, and the husband acted only as
a surety or guarantor, that contract cannot, by itself, alone
be categorized as falling within the context of "obligations
for the benefit of the conjugal partnership." The contract of
loan or services is clearly for the benefit of the principal
debtor and not for the surety or his family. No presumption
can be inferred that, when a husband enters into a contract
of surety or accommodation agreement, it is "for the benefit
of the conjugal partnership." Proof must be presented to
establish benefit redounding to the conjugal partnership.
Thus, the distinction between the Cobb-Perez case, and we
add, that of the three other companion cases, on the one
hand, and that of Ansaldo, Liberty Insurance and Luzon
Surety, is that in the former, the husband contracted the
obligation for his own business; while in the latter, the
husband merely acted as a surety for the loan contracted by
another for the latter's business.
The evidence of petitioner indubitably show that
co-respondent Alfredo Ching signed as surety for the P50M
loan contracted on behalf of PBM. petitioner should have
adduced evidence to prove that Alfredo Ching's acting as
surety redounded to the benefit of the conjugal partnership.
The reason for this is as lucidly explained by the respondent
court:
The loan procured from respondent-appellant AIDC was for
the advancement and benefit of Philippine Blooming Mills
and not for the benefit of the conjugal partnership of
petitioners-appellees. Philippine Blooming Mills has a
personality distinct and separate from the family of
petitioners-appellees — this despite the fact that the
members of the said family happened to be stockholders of
said corporate entity.
xxx xxx xxx
. . . . The burden of proof that the debt was contracted for
the benefit of the conjugal partnership of gains, lies with the
creditor-party litigant claiming as such. In the case at bar,
respondent-appellant AIDC failed to prove that the debt was
contracted by appellee-husband, for the benefit of the
conjugal partnership of gains. What is apparent from the
facts of the case is that the judgment debt was contracted
by or in the name of the Corporation Philippine Blooming
Mills and appellee-husband only signed as surety thereof.
The debt is clearly a corporate debt and
respondent-appellant's right of recourse against
appellee-husband as surety is only to the extent of his
corporate stockholdings. It does not extend to the conjugal
partnership of gains of the family of
petitioners-appellees. . . . . . .17
Petitioners contend that no actual benefit need accrue to
the conjugal partnership. To support this contention, they
cite Justice J.B.L. Reyes' authoritative opinion in the Luzon
Surety Company case:
I concur in the result, but would like to make of record that,
in my opinion, the words "all debts and obligations
contracted by the husband for the benefit of the conjugal
partnership" used in Article 161 of the Civil Code of
the Philippines in describing the charges and
obligations for which the conjugal partnership is
liable do not require that actual profit or benefit
must accrue to the conjugal partnership from the
husband's transaction; but it suffices that the
transaction should be one that normally would
produce such benefit for the partnership. This is
the ratio behind our ruling in Javier vs. Osmeña,
34 Phil. 336, that obligations incurred by the
husband in the practice of his profession are
collectible from the conjugal partnership.
The aforequoted concurring opinion agreed with
the majority decision that the conjugal partnership
should not be made liable for the surety agreement
which was clearly for the benefit of a third party.
Such opinion merely registered an exception to
what may be construed as a sweeping statement
that in all cases actual profit or benefit must accrue
to the conjugal partnership. The opinion merely
made it clear that no actual benefits to the family
need be proved in some cases such as in the
Javier case. There, the husband was the principal
obligor himself. Thus, said transaction was found
to be "one that would normally produce . . . benefit
for the partnership." In the later case of G-Tractors,
Inc., the husband was also the principal obligor —
not merely the surety. This latter case, therefore,
did not create any precedent. It did not also
supersede the Luzon Surety Company case, nor
any of the previous accommodation contract cases,
where this Court ruled that they were for the
benefit of third parties.
But it could be argued, as the petitioner suggests,
that even in such kind of contract of
accommodation, a benefit for the family may also
result, when the guarantee is in favor of the
husband's employer.
In the case at bar, petitioner claims that the
benefits the respondent family would reasonably
anticipate were the following:
(a) The employment of co-respondent Alfredo
Ching would be prolonged and he would be
entitled to his monthly salary of P20,000.00 for an extended
length of time because of the loan he guaranteed;
(b) The shares of stock of the members of his family would
appreciate if the PBM could be rehabilitated through the
loan obtained;
(c) His prestige in the corporation would be enhanced and
his career would be boosted should PBM survive because
of the loan.
However, these are not the benefits contemplated by Article
161 of the Civil Code. The benefits must be one directly
resulting from the loan. It cannot merely be a by-product or
a spin-off of the loan itself.
In all our decisions involving accommodation contracts of
the husband, 18 we underscored the requirement that:
"there must be the requisite showing . . . of some advantage
which clearly accrued to the welfare of the spouses" or
"benefits to his family" or "that such obligations are
productive of some benefit to the family." Unfortunately, the
petition did not present any proof to show: (a) Whether or
not the corporate existence of PBM was prolonged and for
how many months or years; and/or (b) Whether or not the
PBM was saved by the loan and its shares of stock
appreciated, if so, how much and how substantial was the
holdings of the Ching family.
Such benefits (prospects of longer employment and
probable increase in the value of stocks) might have been
already apparent or could be anticipated at the time the
accommodation agreement was entered into. But would
those "benefits" qualify the transaction as one of the
"obligations . . . for the benefit of the conjugal partnership"?
Are indirect and remote probable benefits, the ones referred
to in Article 161 of the Civil Code? The Court of Appeals in
denying the motion for reconsideration, disposed of these
questions in the following manner:
No matter how one looks at it, the debt/credit
respondents-appellants is purely a corporate debt granted
to PBM, with petitioner-appellee-husband merely signing as
surety. While such petitioner-appellee-husband, as such
surety, is solidarily liable with the principal debtor AIDC,
such liability under the Civil Code provisions is specifically
restricted by Article 122 (par. 1) of the Family Code, so that
debts for which the husband is liable may not be charged
against conjugal partnership properties. Article 122 of the
Family Code is explicit — "The payment of personal debts
contracted by the husband or the wife before or during the
marriage shall not be charged to the conjugal partnership
except insofar as they redounded to the benefit of the
family.
Respondents-appellants insist that the corporate debt in
question falls under the exception laid down in said Article
122 (par. one). We do not agree. The loan procured from
respondent-appellant AIDC was for the sole advancement
and benefit of Philippine Blooming Mills and not for the
benefit of the conjugal partnership of petitioners-appellees.
. . . appellee-husband derives salaries, dividends benefits
from Philippine Blooming Mills (the debtor corporation), only
because said husband is an employee of said PBM. These
salaries and benefits, are not the "benefits" contemplated
by Articles 121 and 122 of the Family Code. The "benefits"
contemplated by the exception in Article 122 (Family Code)
is that benefit derived directly from the use of the loan. In
the case at bar, the loan is a corporate loan extended to
PBM and used by PBM itself, not by
petitioner-appellee-husband or his family. The alleged
benefit, if any, continuously harped by
respondents-appellants, are not only incidental but also
speculative. 19
We agree with the respondent court. Indeed, considering
the odds involved in guaranteeing a large amount
(P50,000,000.00) of loan, the probable prolongation of
employment in PBM and increase in value of its stocks,
would be too small to qualify the transaction as one "for the
benefit" of the surety's family. Verily, no one could say, with
a degree of certainty, that the said contract is even
"productive of some benefits" to the conjugal partnership.
We likewise agree with the respondent court (and this view
is not contested by the petitioners) that the provisions of the
Family Code is applicable in this case. These provisions
highlight the underlying concern of the law for the
conservation of the conjugal partnership; for the husband's
duty to protect and safeguard, if not augment, not to
dissipate it.
This is the underlying reason why the Family Code
clarifies that the obligations entered into by one of
the spouses must be those that redounded to the
benefit of the family and that the measure of the
partnership's liability is to "the extent that the
family is benefited."20
These are all in keeping with the spirit and intent of
the other provisions of the Civil Code which
prohibits any of the spouses to donate or convey
gratuitously any part of the conjugal
property. 21 Thus, when co-respondent Alfredo
Ching entered into a surety agreement he, from
then on, definitely put in peril the conjugal property
(in this case, including the family home) and
placed it in danger of being taken gratuitously as in
cases of donation.
In the second assignment of error, the petitioner
advances the view that acting as surety is part of
the business or profession of the
respondent-husband.
This theory is new as it is novel.
The respondent court correctly observed that:
Signing as a surety is certainly not an exercise of
an industry or profession, hence the cited cases
of Cobb-Perez vs. Lantin; Abella de Diaz
vs. Erlanger & Galinger; G-Tractors, Inc. vs. CA do
not apply in the instant case. Signing as a surety is
not embarking in a business.22
We are likewise of the view that no matter how
often an executive acted or was persuaded to act,
as a surety for his own employer, this should not
be taken to mean that he had thereby embarked in
the business of suretyship or guaranty.
This is not to say, however, that we are unaware
that executives are often asked to stand as surety
for their company's loan obligations. This is
especially true if the corporate officials have
sufficient property of their own; otherwise, their
spouses' signatures are required in order to bind the
conjugal partnerships.
The fact that on several occasions the lending institutions
did not require the signature of the wife and the husband
signed alone does not mean that being a surety became
part of his profession. Neither could he be presumed to
have acted for the conjugal partnership.
Article 121, paragraph 3, of the Family Code is emphatic
that the payment of personal debts contracted by the
husband or the wife before or during the marriage shall not
be charged to the conjugal partnership except to the extent
that they redounded to the benefit of the family.
Here, the property in dispute also involves the family home.
The loan is a corporate loan not a personal one. Signing as
a surety is certainly not an exercise of an industry or
profession nor an act of administration for the benefit of the
family.
On the basis of the facts, the rules, the law and equity, the
assailed decision should be upheld as we now uphold it.
This is, of course, without prejudice to petitioner's right to
enforce the obligation in its favor against the PBM receiver
in accordance with the rehabilitation program and payment
schedule approved or to be approved by the Securities &
Exchange Commission.
WHEREFORE, the petition for review should be, as it is
hereby, DENIED for lack of merit.
SO ORDERED.
[G.R. No. 114791. May 29, 1997]
NANCY GO AND ALEX GO, Petitioners, v. THE
HONORABLE COURT OF APPEALS, HERMOGENES
ONG and JANE C. ONG, Respondents.
DECISION
ROMERO, J.:
No less than the Constitution commands us to protect
marriage as an inviolable social institution and the
foundation of the family.1 In our society, the importance of a
wedding ceremony cannot be underestimated as it is the
matrix of the family and, therefore, an occasion worth
reliving in the succeeding years.
It is in this light that we narrate the following undisputed
facts:
Private respondents spouses Hermogenes and Jane Ong
were married on June 7, 1981, in Dumaguete City. The
video coverage of the wedding was provided by petitioners
at a contract price of P1,650.00. Three times thereafter, the
newlyweds tried to claim the video tape of their wedding,
which they planned to show to their relatives in the United
States where they were to spend their honeymoon, and
thrice they failed because the tape was apparently not yet
processed. The parties then agreed that the tape would be
ready upon private respondents return.
When private respondents came home from their
honeymoon, however, they found out that the tape had
been erased by petitioners and therefore, could no longer
be delivered.
Furious at the loss of the tape which was supposed to be
the only record of their wedding, private respondents filed
on September 23, 1981 a complaint for specific
performance and damages against petitioners before the
Regional Trial Court, 7th Judicial District, Branch 33,
Dumaguete City. After a protracted trial, the court a
quo rendered a decision, to wit:
WHEREFORE, judgment is hereby granted:
1. Ordering the rescission of the agreement entered into
between plaintiff Hermogenes Ong and defendant Nancy
Go;
2. Declaring defendants Alex Go and Nancy Go jointly and
severally liable to plaintiffs Hermogenes Ong and Jane C.
Ong for the following sums:
a) P450.00, the down payment made at contract time;
b) P75,000.00, as moral damages;
c) P20,000.00, as exemplary damages;
d) P5,000.00, as attorneys fees; and
e) P2,000.00, as litigation expenses;
Defendants are also ordered to pay the costs.
SO ORDERED.
Dissatisfied with the decision, petitioners
elevated the case to the Court of Appeals
which, on September 14, 1993, dismissed the
appeal and affirmed the trial courts decision.
Hence, this petition.
Petitioners contend that the Court of Appeals
erred in not appreciating the evidence they
presented to prove that they acted only as
agents of a certain Pablo Lim and, as such,
should not have been held liable. In addition,
they aver that there is no evidence to show that
the erasure of the tape was done in bad faith so
as to justify the award of
damages.2chanroblesvirtuallawlibrary
The petition is not meritorious.
Petitioners claim that for the video coverage,
the cameraman was employed by Pablo Lim
who also owned the video equipment used.
They further assert that they merely get a
commission for all customers solicited for
their principal.3chanroblesvirtuallawlibrary
This contention is primarily premised on
Article 1883 of the Civil Code which states
thus:
ART. 1883. If an agent acts in his own name,
the principal has no right of action against the
persons with whom the agent has contracted;
neither have such persons against the principal.
In such case the agent is the one directly bound in
favor of the person with whom he has contracted, as if
the transaction were his own, except when the contract
involves things belonging to the principal.
xxx xxx xxx
Petitioners argument that since the video equipment used
belonged to Lim and thus the contract was actually entered
into between private respondents and Lim is not deserving
of any serious consideration. In the instant case, the
contract entered into is one of service, that is, for the video
coverage of the wedding. Consequently, it can hardly be
said that the object of the contract was the video equipment
used. The use by petitioners of the video equipment of
another person is of no consequence.
It must also be noted that in the course of the protracted trial
below, petitioners did not even present Lim to corroborate
their contention that they were mere agents of the latter. It
would not be unwarranted to assume that their failure to
present such a vital witness would have had an adverse
result on the case.4chanroblesvirtuallawlibrary
As regards the award of damages, petitioners would
impress upon this Court their lack of malice or fraudulent
intent in the erasure of the tape. They insist that since
private respondents did not claim the tape after the lapse of
thirty days, as agreed upon in their contract, the erasure
was done in consonance with consistent business practice
to minimize losses.5chanroblesvirtuallawlibrary
We are not persuaded.
As correctly observed by the Court of Appeals, it is contrary
to human nature for any newlywed couple to neglect to
claim the video coverage of their wedding; the fact that
private respondents filed a case against petitioners belies
such assertion. Clearly, petitioners are guilty of actionable
delay for having failed to process the video tape.
Considering that private respondents were about to leave
for the United States, they took care to inform petitioners
that they would just claim the tape upon their return two
months later. Thus, the erasure of the tape after the lapse of
thirty days was unjustified.
In this regard, Article 1170 of the Civil Code provides that
those who in the performance of their obligations are guilty
of fraud, negligence or delay, and those who is any manner
contravene the tenor thereof, are liable for damages.
In the instant case, petitioners and private respondents
entered into a contract whereby, for a fee, the former
undertook to cover the latters wedding and deliver to them a
video copy of said event. For whatever reason, petitioners
failed to provide private respondents with their tape. Clearly,
petitioners are guilty of contravening their obligation to said
private respondents and are thus liable for damages.
The grant of actual or compensatory damages in the
amount of P450.00 is justified, as reimbursement of the
downpayment paid by private respondents to
petitioners.6chanroblesvirtuallawlibrary
Generally, moral damages cannot be recovered in an action
for breach of contract because this case is not among those
enumerated in Article 2219 of the Civil Code. However, it is
also accepted in this jurisdiction that liability for
a quasi-delict may still exist despite the presence of
contractual relations, that is, the act which violates the
contract may also constitute a quasi-delict.7 Consequently,
moral damages are recoverable for the breach of contract
which was palpably wanton, reckless, malicious or in bad
faith, oppresive or abusive.8chanroblesvirtuallawlibrary
Petitioners act or omission in recklessly erasing the video
coverage of private respondents wedding was precisely the
cause of the suffering private respondents had to undergo.
As the appellate court aptly observed:
Considering the sentimental value of the tapes and the fact
that the event therein recorded a wedding which in our
culture is a significant milestone to be cherished and
remembered could no longer be reenacted and was lost
forever, the trial court was correct in awarding the appellees
moral damages albeit in the amount of P75,000.00, which
was a great reduction from plaintiffs demand in the
complaint, in compensation for the mental anguish, tortured
feelings, sleepless nights and humiliation that the
appellees suffered and which under the
circumstances could be awarded as allowed under
Articles 2217 and 2218 of the Civil
Code.9chanroblesvirtuallawlibrary
Considering the attendant wanton negligence
committed by petitioners in the case at bar, the
award of exemplary damages by the trial court is
justified10 to serve as a warning to all entities
engaged in the same business to observe due
diligence in the conduct of their affairs.
The award of attorneys fees and litigation
expenses are likewise proper, consistent with
Article 220811 of the Civil Code.
Finally, petitioner Alex Go questions the finding of
the trial and appellate courts holding him jointly
and severally liable with his wife Nancy regarding
the pecuniary liabilities imposed. He argues that
when his wife entered into the contract with private
respondent, she was acting alone for her sole
interest.12chanroblesvirtuallawlibrary
We find merit in this contention. Under Article 117
of the Civil Code (now Article 73 of the Family
Code), the wife may exercise any profession,
occupation or engage in business without the
consent of the husband. In the instant case, we are
convinced that it was only petitioner Nancy Go
who entered into the contract with private
respondent. Consequently, we rule that she is
solely liable to private respondents for the
damages awarded below, pursuant to the principle
that contracts produce effect only as between the
parties who execute
them.13chanroblesvirtuallawlibrary
WHEREFORE, the assailed decision dated
September 14, 1993 is hereby AFFIRMED with the
MODIFICATION that petitioner Alex Go is
absolved from any liability to private respondents
and that petitioner Nancy Go is solely liable to said
private respondents for the judgment award. Costs
against petitioners.
SO ORDERED.
Art. 86. A donation by reason of marriage may be revoked
by the donor in the following cases:
(1) If the marriage is not celebrated or judicially declared
void ab initio except donations made in the marriage
settlements, which shall be governed by Article 81;
(2) When the marriage takes place without the consent of
the parents or guardian, as required by law;
(3) When the marriage is annulled, and the donee acted in
bad faith;
(4) Upon legal separation, the donee being the guilty
spouse;
(5) If it is with a resolutory condition and the condition is
complied with;
(6) When the donee has committed an act of ingratitude as
specified by the provisions of the Civil Code on donations in
general. (132a)
[G.R. No. 116668. July 28, 1997]
ERLINDA A. AGAPAY, Petitioner, v. CARLINA
(CORNELIA) V. PALANG and HERMINIA P. DELA
CRUZ, Respondents.
DECISION
ROMERO, J.:
Before us is a petition for review of the decision of the Court
of Appeals in CA-G.R. CV No. 24199 entitled Erlinda
Agapay v. Carlina (Cornelia) Palang and Herminia P. Dela
Cruz dated June 22, 1994 involving the ownership of two
parcels of land acquired during the cohabitation of petitioner
and private respondents legitimate spouse.
Miguel Palang contracted his first marriage on July 16, 1949
when he took private respondent Carlina (or Cornelia)
Vallesterol as a wife at the Pozorrubio Roman Catholic
Church in Pangasinan. A few months after the wedding, in
October 1949, he left to work in Hawaii. Miguel and Carlinas
only child, Herminia Palang, was born on May 12, 1950.
Miguel returned in 1954 for a year. His next visit to the
Philippines was in 1964 and during the entire duration of his
year-long sojourn he stayed in Zambales with his brother,
not in Pangasinan with his wife and child. The trial court
found evidence that as early as 1957, Miguel had attempted
to divorce Carlina in Hawaii.1 When he returned for good in
1972, he refused to live with private respondents, but
stayed alone in a house in Pozorrubio, Pangasinan.
On July 15, 1973, the then sixty-three-year-old Miguel
contracted his second marriage with nineteen-year-old
Erlinda Agapay, herein petitioner.2 Two months earlier, on
May 17, 1973, Miguel and Erlinda, as evidenced by the
Deed of Sale, jointly purchased a parcel of agricultural land
located at San Felipe, Binalonan, Pangasinan with an area
of 10,080 square meters. Consequently, Transfer
Certificate of Title No. 101736 covering said rice land was
issued in their names.
A house and lot in Binalonan, Pangasinan was likewise
purchased on September 23, 1975, allegedly by Erlinda as
the sole vendee. TCT No. 143120 covering said property
was later issued in her name.
On October 30, 1975, Miguel and Cornelia Palang executed
a Deed of Donation as a form of compromise agreement to
settle and end a case filed by the latter.3 The parties therein
agreed to donate their conjugal property consisting of six
parcels of land to their only child, Herminia
Palang.4chanroblesvirtuallawlibrary
Miguel and Erlindas cohabitation produced a son,
Kristopher A. Palang, born on December 6, 1977. In 1979,
Miguel and Erlinda were convicted of Concubinage upon
Carlinas complaint.5 Two years later, on February 15, 1981,
Miguel died.
On July 11, 1981, Carlina Palang and her daughter
Herminia Palang de la Cruz, herein private respondents,
instituted the case at bar, an action for recovery of
ownership and possession with damages against petitioner
before the Regional Trial Court in Urdaneta, Pangasinan
(Civil Case No. U-4265). Private respondents sought to get
back the riceland and the house and lot both
located at Binalonan, Pangasinan allegedly
purchased by Miguel during his cohabitation with
petitioner.
Petitioner, as defendant below, contended that
while the riceland covered by TCT No. 101736 is
registered in their names (Miguel and Erlinda), she
had already given her half of the property to their
son Kristopher Palang. She added that the house
and lot covered by TCT No. 143120 is her sole
property, having bought the same with her own
money. Erlinda added that Carlina is precluded
from claiming aforesaid properties since the latter
had already donated their conjugal estate to
Herminia.
After trial on the merits, the lower court rendered
its decision on June 30, 1989 dismissing the
complaint after declaring that there was little
evidence to prove that the subject properties
pertained to the conjugal property of Carlina and
Miguel Palang. The lower court went on to provide
for the intestate shares of the parties, particularly
of Kristopher Palang, Miguels illegitimate son. The
dispositive portion of the decision reads:
WHEREFORE, premises considered, judgment is
hereby rendered-
1) Dismissing the complaint, with costs against
plaintiffs;
2) Confirming the ownership of defendant Erlinda
Agapay of the residential lot located at Poblacion,
Binalonan, Pangasinan, as evidenced by TCT No.
143120, Lot 290-B including the old house
standing therein;
3) Confirming the ownership of one-half (1/2)
portion of that piece of agricultural land situated at
Balisa, San Felipe, Binalonan, Pangasinan,
consisting of 10,080 square meters and as
evidenced by TCT No. 101736, Lot 1123-A to
Erlinda Agapay;
4) Adjudicating to Kristopher Palang as his inheritance from
his deceased father, Miguel Palang, the one-half (1/2) of the
agricultural land situated at Balisa, San Felipe, Binalonan,
Pangasinan, under TCT No. 101736 in the name of Miguel
Palang, provided that the former (Kristopher) executes,
within 15 days after this decision becomes final and
executory, a quit-claim forever renouncing any claims to
annul/reduce the donation to Herminia Palang de la Cruz of
all conjugal properties of her parents, Miguel Palang and
Carlina Vallesterol Palang, dated October 30, 1975,
otherwise, the estate of deceased Miguel Palang will have
to be settled in another separate action;
5) No pronouncement as to damages and attorneys fees.
SO ORDERED.6chanroblesvirtuallawlibrary
On appeal, respondent court reversed the trial courts
decision. The Court of Appeals rendered its decision on July
22, 1994 with the following dispositive portion:
WHEREFORE, PREMISES CONSIDERED, the appealed
decision is hereby REVERSED and another one entered:
1. Declaring plaintiffs-appellants the owners of the
properties in question;
2. Ordering defendant-appellee to vacate and deliver the
properties in question to herein plaintiffs-appellants;
3. Ordering the Register of Deeds of Pangasinan to cancel
Transfer Certificate of Title Nos. 143120 and 101736 and to
issue in lieu thereof another certificate of title in the name of
plaintiffs-appellants.
No pronouncement as to costs.7chanroblesvirtuallawlibrary
Hence, this petition.
Petitioner claims that the Court of Appeals erred in not
sustaining the validity of two deeds of absolute sale
covering the riceland and the house and lot, the first in favor
of Miguel Palang and Erlinda Agapay and the second, in
favor of Erlinda Agapay alone. Second, petitioner contends
that respondent appellate court erred in not declaring
Kristopher A. Palang as Miguel Palangs illegitimate son and
thus entitled to inherit from Miguels estate. Third,
respondent court erred, according to petitioner, in not
finding that there is sufficient pleading and evidence that
Kristoffer A. Palang or Christopher A. Palang should be
considered as party-defendant in Civil Case No. U-4625
before the trial court and in CA-G.R. No.
24199.8chanroblesvirtuallawlibrary
After studying the merits of the instant case, as well as the
pertinent provisions of law and jurisprudence, the Court
denies the petition and affirms the questioned decision of
the Court of Appeals.
The first and principal issue is the ownership of the two
pieces of property subject of this action. Petitioner assails
the validity of the deeds of conveyance over the same
parcels of land. There is no dispute that the transfers of
ownership from the original owners of the riceland and the
house and lot, Corazon Ilomin and the spouses Cespedes,
respectively, were valid.
The sale of the riceland on May 17, 1973, was made in
favor of Miguel and Erlinda. The provision of law applicable
here is Article 148 of the Family Code providing for cases of
cohabitation when a man and a woman who
are not capacitated to marry each other live exclusively with
each other as husband and wife without the benefit of
marriage or under a void marriage. While Miguel and
Erlinda contracted marriage on July 15, 1973, said union
was patently void because the earlier marriage of Miguel
and Carlina was still susbsisting and unaffected by the
latters de facto separation.
Under Article 148, only the properties acquired by both of
the parties through their actual joint contribution of
money, property or industry shall be owned by them in
common in proportion to their respective contributions. It
must be stressed that actual contribution is required by this
provision, in contrast to Article 147 which states that efforts
in the care and maintenance of the family and household,
are regarded as contributions to the acquisition of common
property by one who has no salary or income or work or
industry. If the actual contribution of the party is not proved,
there will be no co-ownership and no presumption of equal
shares.9chanroblesvirtuallawlibrary
In the case at bar, Erlinda tried to establish by her
testimony that she is engaged in the business of
buy and sell and had a sari-sari store10 but failed
to persuade us that she actually contributed
money to buy the subject riceland. Worth noting is
the fact that on the date of conveyance, May 17,
1973, petitioner was only around twenty years of
age and Miguel Palang was already sixty-four and
a pensioner of the U.S. Government. Considering
her youthfulness, it is unrealistic to conclude that in
1973 she contributed P3,750.00 as her share in
the purchase price of subject property,11 there
being no proof of the same.
Petitioner now claims that the riceland was bought
two months before Miguel and Erlinda actually
cohabited. In the nature of an afterthought, said
added assertion was intended to exclude their
case from the operation of Article 148 of the Family
Code. Proof of the precise date when they
commenced their adulterous cohabitation not
having been adduced, we cannot state definitively
that the riceland was purchased even before they
started living together. In any case, even assuming
that the subject property was bought before
cohabitation, the rules of co-ownership would still
apply and proof of actual contribution would still be
essential.
Since petitioner failed to prove that she contributed
money to the purchase price of the riceland in
Binalonan, Pangasinan, we find no basis to justify
her co-ownership with Miguel over the same.
Consequently, the riceland should, as correctly
held by the Court of Appeals, revert to the conjugal
partnership property of the deceased Miguel and
private respondent Carlina Palang.
Furthermore, it is immaterial that Miguel and
Carlina previously agreed to donate their conjugal
property in favor of their daughter Herminia in
1975. The trial court erred in holding that the
decision adopting their compromise agreement in
effect partakes the nature of judicial confirmation
of the separation of property between spouses and
the termination of the conjugal
partnership.12 Separation of property between
spouses during the marriage shall not take place except by
judicial order or without judicial conferment when there is an
express stipulation in the marriage settlements. 13 The
judgment which resulted from the parties compromise was
not specifically and expressly for separation of property and
should not be so inferred.
With respect to the house and lot, Erlinda allegedly bought
the same for P20,000.00 on September 23, 1975 when she
was only 22 years old. The testimony of the notary public
who prepared the deed of conveyance for the property
reveals the falsehood of this claim. Atty. Constantino Sagun
testified that Miguel Palang provided the money for the
purchase price and directed that Erlindas name alone be
placed as the vendee.14chanroblesvirtuallawlibrary
The transaction was properly a donation made by Miguel to
Erlinda, but one which was clearly void and inexistent by
express provision of law because it was made between
persons guilty of adultery or concubinage at the time of the
donation, under Article 739 of the Civil Code. Moreover,
Article 87 of the Family Code expressly provides that the
prohibition against donations between spouses now applies
to donations between persons living together as husband
and wife without a valid marriage,15 for otherwise, the
condition of those who incurred guilt would turn out to be
better than those in legal union.16chanroblesvirtuallawlibrary
The second issue concerning Kristopher Palangs status
and claim as an illegitimate son and heir to Miguels estate is
here resolved in favor of respondent courts correct
assessment that the trial court erred in making
pronouncements regarding Kristophers heirship and filiation
inasmuch as questions as to who are the heirs of the
decedent, proof of filiation of illegitimate children and the
determination of the estate of the latter and claims thereto
should be ventilated in the proper probate court or in a
special proceeding instituted for the purpose and cannot be
adjudicated in the instant ordinary civil action which is for
recovery of ownership and
possession.17chanroblesvirtuallawlibrary
As regards the third issue, petitioner contends that
Kristopher Palang should be considered as party-defendant
in the case at bar following the trial courts decision which
expressly found that Kristopher had not been impleaded as
party defendant but theorized that he had submitted to the
courts jurisdiction through his mother/guardian ad
litem.18 The trial court erred gravely. Kristopher, not having
been impleaded, was, therefore, not a party to the case at
bar. His mother, Erlinda, cannot be called his guardian ad
litem for he was not involved in the case at bar. Petitioner
adds that there is no need for Kristopher to file another
action to prove that he is the illegitimate son of Miguel, in
order to avoid multiplicity of suits.19 Petitioners grave error
has been discussed in the preceeding paragraph where the
need for probate proceedings to resolve the settlement of
Miguels estate and Kristophers successional rights has
been pointed out.

WHEREFORE, the instant petition is hereby DENIED. The

questioned decision of the Court of Appeals is AFFIRMED.
Costs against petitioner.

SO ORDERED.

Art. 87. Every donation or grant of gratuitous advantage,

direct or indirect, between the spouses during the marriage
shall be void, except moderate gifts which the spouses may
give each other on the occasion of any family rejoicing. The
prohibition shall also apply to persons living together as
husband and wife without a valid marriage. (133a)