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
Emerlinadela 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 Emerlinadela 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. deConsuegra 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. deConsuegra
v. GSIS  and the absence of justiciable controversy as to the nullity of the marriage. On September
2

11, 1991, Judge Austria denied the motion for reconsideration and gave petitioner fifteen (15) days
from receipt within which to file his answer.

Instead of filing the required answer, petitioner filed a special civil action
of certiorari and mandamus on the ground that the lower court acted with grave abuse of discretion
amounting to lack of jurisdiction in denying the motion to dismiss.

On February 7, 1992, the Court of Appeals  dismissed the petition. It explained that the case of Yap
3

v. CA  cited by petitioner and that of Consuegra v. GSIS relied upon by the lower court do not
4

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.

ISSUES: The two basic issues confronting the Court in the instant case are the following.

First, whether or not a petition for judicial declaration of a void marriage is necessary. If in
the affirmative, whether the same should be filed only for purposes of remarriage.

Second, whether or not SP No. 1989-J is the proper remedy of private respondent to recover
certain real and personal properties allegedly belonging to her exclusively.

Petitioner, invoking the ruling in People v. Aragon  and People v. Mendoza,  contends that SP. No.
6 7

1989-J for Declaration of Nullity of Marriage and Separation of Property filed by private respondent
must be dismissed for being unnecessary and superfluous. Furthermore, under his own
interpretation of Article 40 of the Family Code, he submits that a petition for declaration of
absolute nullity of marriage is required only for purposes of remarriage.Since the petition in
SP No. 1989-J contains no allegation of private respondent's intention to remarry, said
petition should therefore, be dismissed.

On the other hand, private respondent insists on the necessity of a judicial declaration of the nullity
of their marriage, not for purposes of remarriage, but in order to provide a basis for the separation
and distribution of the properties acquired during coverture.

There is no question that the marriage of petitioner and private respondent celebrated while
the former's previous marriage with one Emerlina de la Paz was still subsisting, is bigamous.
As such, it is from the beginning.  Petitioner himself does not dispute the absolute nullity of their
8

marriage. 9

The cases of People v. Aragon and People v. Mendoza relied upon by petitioner are cases

where the Court had earlier ruled that no judicial decree is necessary to establish the
invalidity of a void, bigamous marriage. It is noteworthy to observe that Justice Alex Reyes,
however, dissented on these occasions stating that:

Though the logician may say that where the former marriage was void there
would be nothing to dissolve, still it is not for the spouses to judge whether
that marriage was void or not. That judgment is reserved to the courts. . . .  10

This dissenting opinion was adopted as the majority position in subsequent cases involving
the same issue. Thus, in Gomez v. Lipana,   the Court abandoned its earlier ruling in
11

the Aragon and Mendoza cases.In reversing the lower court's order forfeiting the husband's

share of the disputed property acquired during the second marriage, the Court stated that "if
the nullity, or annulment of the marriage is the basis for the application of Article 1417, there
is need for a judicial declaration thereof, which of course contemplates an action for that
purpose."

Citing Gomez v. Lipana, the Court subsequently held in Vda. de Consuegra v. Government Service
Insurance System, that "although the second marriage can be presumed to be void ab initio as
it was celebrated while the first marriage was still subsisting, still there is need for judicial
declaration of such nullity."

In Tolentino v. Paras,  however, the Court turned around and applied

12

the Aragon and Mendoza ruling once again.In granting the prayer of the first wife asking for a
declaration as the lawful surviving spouse and the correction of the death certificate of her
deceased husband, it explained that "(t)he second marriage that he contracted with private
respondent during the lifetime of his first spouse is null and void from the beginning and of
no force and effect. No judicial decree is necessary to establish the invalidity of a void
marriage."

However, in the more recent case of Wiegel v. Sempio-Diy   the Court reverted to
13

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.   Where the absolute nullity of a previous marriage
14

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   which drafted
16

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.   The Court, in turning down the defense of respondent Terre
19

who was charged with grossly immoral conduct consisting of contracting a second marriage
and living with another woman other than complainant while his prior marriage with the latter
remained subsisting, said that "for purposes of determining whether a person is legally free to
contract a second marriage, a judicial declaration that the first marriage was null and void ab
initio is essential."

As regards the necessity for a judicial declaration of absolute nullity of marriage, petitioner submits
that the same can be maintained only if it is for the purpose of remarriage.Failure to allege this
purpose, according to petitioner's theory, will warrant dismissal of the same.

Article 40 of the Family Code provides:

Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment declaring such previous marriage
void. (n)
Crucial to the proper interpretation of Article 40 is the position in the provision of the word "solely."
As it is placed, the same shows that it is meant to qualify "final judgment declaring such
previous marriage void." Realizing the need for careful craftsmanship in conveying the precise
intent of the Committee members, the provision in question, as it finally emerged, did not state "The
absolute nullity of a previous marriage may be invoked solely for purposes of remarriage . . .," in
which case "solely" would clearly qualify the phrase "for purposes of remarriage."Had the
phraseology been such, the interpretation of petitioner would have been correct and, that is, that the
absolute nullity of a previous marriage may be invoked  solely  for purposes of remarriage, thus
rendering irrelevant the clause "on the basis solely of a final judgment declaring such previous
marriage void."

That Article 40 as finally formulated included the significant clause denotes that such final
judgment declaring the previous marriage void need not be obtained only for purposes of
remarriage. Undoubtedly, one can conceive of other instances where a party might well
invoke the absolute nullity of a previous marriage for purposes other than remarriage, such
as in case of an action for liquidation, partition, distribution and separation of property
between the erstwhile spouses, as well as an action for the custody and support of their
common children and the delivery of the latters' presumptive legitimes. In such cases,
evidence needs must be adduced, testimonial or documentary, to prove the existence of
grounds rendering such a previous marriage an absolute nullity. These need not be limited
solely to an earlier final judgment of a court declaring such previous marriage void. Hence, in
the instance where a party who has previously contracted a marriage which remains
subsisting desires to enter into another marriage which is legally unassailable, he is required
by law to prove that the previous one was an absolute nullity. But this he may do on the
basis solely of a final judgment declaring such previous marriage void.

This leads us to the question: Why the distinction? In other words, for purposes of remarriage, why
should the only legally acceptable basis for declaring a previous marriage an absolute nullity be a
final judgment declaring such previous marriage void? Whereas, for purposes other than remarriage,
other evidence is acceptable?

Marriage, a sacrosanct institution, declared by the Constitution as an "inviolable social institution, is

the foundation of the family;" as such, it "shall be protected by the State."   In more explicit terms, the
20

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."     So
21

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 . . ."   As a matter of
22

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.   (Emphasis supplied)
24

Pursuing his previous argument that the declaration for absolute nullity of marriage is unnecessary,
petitioner suggests that private respondent should have filed an ordinary civil action for the recovery
of the properties alleged to have been acquired during their union. In such an eventuality, the lower
court would not be acting as a mere special court but would be clothed with jurisdiction to rule on the
issues of possession and ownership. In addition, he pointed out that there is actually nothing to
separate or partition as the petition admits that all the properties were acquired with private
respondent's money.

The Court of Appeals disregarded this argument and concluded that "the prayer for declaration of
absolute nullity of marriage may be raised together with the other incident of their marriage such as
the separation of their properties."

When a marriage is declared void ab initio, the law states that the final judgment therein shall
provide for "the liquidation, partition and distribution of the properties of the spouses, the
custody and support of the common children, and the delivery of their presumptive legitimes,
unless such matters had been adjudicated in previous judicial proceedings."   Other specific
25

effects flowing therefrom, in proper cases, are the following:

Art. 43.xxxxxxxxx

(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.

Bidin and Melo, JJ., concur.

Feliciano, J., is on leave.

Separate Opinions

VITUG, J., concurring:

I concur with the opinion so well expressed by Mme. Justice Flerida Ruth P. Romero. I should like,
however, to put in a modest observation.

Void marriages are inexistent from the very beginning and, I believe, no judicial decree is required to
establish their nullity, except in the following instances:

(a) For purposes of remarriage pursuant to the provision of Article 40 of the Family Code; viz.:

The absolute nullity of a previous marriage may be invoked for purposes of

remarriage on the basis solely of a final judgment declaring such previous marriage
void. (n)
(b) A marriage celebrated prior to the effectivity of the Family Code in case a party thereto was
psychologically incapacitated to comply with the essential marital obligations of marriage (Article 36,
Family Code), where an action or defense for the declaration of nullity prescribes ten (10) years after
the Family Code took effect (Article 39, Family Code); otherwise, the marriage is deemed unaffected
by the Family Code.

A void marriage, even without its being judicially declared a nullity, albeit the preferability for, and
justiciability (fully discussed in the majority opinion) of, such a declaration, will not give it the status
or the consequences of a valid marriage, saving only specific instances where certain effects of a
valid marriage can still flow from the void marriage. Examples of these cases are children of void
marriages under Article 36 (due to psychological incapacity) and Article 53, in relation to Article 52
(due to failure of partition, delivery of presumptive legitimes of children and recording thereof
following the annulment or declaration of nullity a prior marriage), conceived or born before the
judicial declaration of nullity of such void marriages, who the law deems as legitimate (Article 54,
Family Code).

In most, if not in all, other cases, a void marriage is to be considered extant per se. Neither the
conjugal, partnership of gain under the old regime nor the absolute community of property under the
new Code (absent a marriage settlement), will apply; instead, their property relations shall be
governed by the co-ownership rules under either Article 147 or Article 148 of the Family Code. I
must hasten to add as a personal view, however, that the exceptional effects on children of a void
marriage because of the psychological incapacity of a party thereto should have been extended to
cover even the personal and property relations of the spouses. Unlike the other cases of void
marriages where the grounds therefor may be established by hard facts and with little uncertainty,
the term "psychological incapacity" is so relative and unsettling that until a judicial declaration of
nullity is made its interim effects can long and literally hang on the balance not only insofar as the
spouses themselves are concerned but also as regards third persons with whom the spouses deal.

# Separate Opinions

VITUG, J., concurring:

I concur with the opinion so well expressed by Mme. Justice Flerida Ruth P. Romero. I should like,
however, to put in a modest observation.

Void marriages are inexistent from the very beginning and, I believe, no judicial decree is required to
establish their nullity, except in the following instances:

(a) For purposes of remarriage pursuant to the provision of Article 40 of the Family Code; viz.:

The absolute nullity of a previous marriage may be invoked for purposes of

remarriage on the basis solely of a final judgment declaring such previous marriage
void. (n)

(b) A marriage celebrated prior to the effectivity of the Family Code in case a party thereto was
psychologically incapacitated to comply with the essential marital obligations of marriage (Article 36,
Family Code), where an action or defense for the declaration of nullity prescribes ten (10) years after
the Family Code took effect (Article 39, Family Code); otherwise, the marriage is deemed unaffected
by the Family Code.

A void marriage, even without its being judicially declared a nullity, albeit the preferability for, and
justiciability (fully discussed in the majority opinion) of, such a declaration, will not give it the status
or the consequences of a valid marriage, saving only specific instances where certain effects of a
valid marriage can still flow from the void marriage. Examples of these cases are children of void
marriages under Article 36 (due to psychological incapacity) and Article 53, in relation to Article 52
(due to failure of partition, delivery of presumptive legitimes of children and recording thereof
following the annulment or declaration of nullity a prior marriage), conceived or born before the
judicial declaration of nullity of such void marriages, who the law deems as legitimate (Article 54,
Family Code).

In most, if not in all, other cases, a void marriage is to be considered extant per se. Neither the
conjugal, partnership of gain under the old regime nor the absolute community of property under the
new Code (absent a marriage settlement), will apply; instead, their property relations shall be
governed by the co-ownership rules under either Article 147 or Article 148 of the Family Code. I
must hasten to add as a personal view, however, that the exceptional effects on children of a void
marriage because of the psychological incapacity of a party thereto should have been extended to
cover even the personal and property relations of the spouses. Unlike the other cases of void
marriages where the grounds therefor may be established by hard facts and with little uncertainty,
the term "psychological incapacity" is so relative and unsettling that until a judicial declaration of
nullity is made its interim effects can long and literally hang on the balance not only insofar as the
spouses themselves are concerned but also as regards third persons with whom the spouses deal.

G.R. No. 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 NicdaoCariño (hereafter referred to as Susan Nicdao), with
whom he had two offsprings, namely, Sahlee and SandeeCariño; 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.

ISSUES: 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 forcewhen 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.

x xx

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.
deConsuegra 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.

Davide, Jr., C.J. (Chairman), Kapunan, and Pardo, JJ., concur.

Puno J., on official leave.

G.R. No. 94053 March 17, 1993

REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
GREGORIO NOLASCO, respondent.

The Solicitor General for plaintiff-appellee.

Warloo G. Cardenal for respondent.

RESOLUTION

FELICIANO, J.:

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

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

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 (go wrong) 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 (go wrong) 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

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

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

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

When Article 41 is compared with the old provision of the Civil Code, which it superseded,  the
7

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.  Also, Article 41 of the Family Code
8

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.  The Family Code, upon the other hand, prescribes as "well founded
9

belief" that the absentee is already dead before a petition for declaration of presumptive

death can be granted.

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

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

2. That the present spouse wishes to remarry;

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

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

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

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

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

United States v. Biasbas,   is instructive as to degree of diligence required in searching for a
12

missing spouse. In that case, defendant MacarioBiasbas was charged with the crime of
bigamy.Heset-up the defense of a good faith belief that his first wife had already died. The
Court held that defendant had not exercised due diligence to ascertain the whereabouts of
his first wife,noting that:

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

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

and went to London, a vast city of many millions of inhabitants, to look for her there.

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

A Yes, Sir.

Court:

How did you do that?

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

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

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

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

The Court also views respondent's claim that Janet Monica declined to give any information
as to her personal background even after she had married respondent   too convenient an
17

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.   As noted
18

before, there are serious doubts to respondent's credibility. Moreover, even if admitted as
evidence, said testimony merely tended to show that the missing spouse had chosen not to
communicate with their common acquaintances, and not that she was dead.

Respondent testified that immediately after receiving his mother's letter sometime in January 1983,
he cut short his employment contract to return to San Jose, Antique. However, he did not
explain the delay of nine (9) months from January 1983, when he allegedly asked leave from
his captain, to November 1983 when be finally reached San Jose. Respondent, moreover,
claimed he married Janet Monica Parker without inquiring about her parents and their place
of residence.   Also, respondent failed to explain why he did not even try to get the help of the
19

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,   the Court stressed that:

20

. . . 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. . . . .   (Emphasis supplied)
21

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,   the Court warned against such collusion between the parties when they find it
22

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,   the Court stressed strongly the need to protect.
23

. . . the basic social institutions of marriage and the family in the preservation of
which the State has the strongest interest; the public policy here involved is of the
most fundamental kind. In Article II, Section 12 of the Constitution there is set forth
the following basic state policy:
 The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution. . . .

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

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

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

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

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

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

Gutierrez, Jr. J., is on leave.

G.R. No. 165545             March 24, 2006

SOCIAL SECURITY SYSTEM, Petitioner,

vs.
TERESITA JARQUE VDA. DE BAILON, Respondent.

DECISION

CARPIO MORALES,J.:

The Court of Appeals Decision1 dated June 23, 20042 and Resolution dated September 28,
20043 reversing the Resolution dated April 2, 20034 and Order dated June 4, 20035 of the Social
Security Commission (SSC) in SSC Case No. 4-15149-01 are challenged in the present petition for
review on certiorari.

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

More than 15 years later or on October 9, 1970, Bailon filed before the then Court of First Instance
(CFI) of Sorsogon a petition7 to declare Alice presumptively dead.

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

SO ORDERED.9 (Underscoring supplied)

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

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

Respondent thereupon filed a claim for funeral benefits, and was granted P12,00012 by the SSS.

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

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

In support of her claim, Cecilia and her sister Norma Bailon Chavez (Norma) submitted an Affidavit
dated February 13, 199915 averring that they are two of nine children of Bailon and Elisa who
cohabited as husband and wife as early as 1958; and they were reserving their right to file the
necessary court action to contest the marriage between Bailon and respondent as they personally
know that Alice is "still very much alive." 16

In the meantime, on April 5, 1999, a certain Hermes P. Diaz, claiming to be the brother and guardian
of "Aliz P. Diaz," filed before the SSS a claim for death benefits accruing from Bailon’s death, 17 he
further attesting in a sworn statement18 that it was Norma who defrayed Bailon’s funeral expenses.

Elisa and seven of her children19 subsequently filed claims for death benefits as Bailon’s
beneficiaries before the SSS.20

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

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

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

x xxx

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

x xxx

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

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

In a separate letter dated September 7, 1999, 23 the SSS advised respondent of the cancellation of
her monthly pension for death benefits in view of the opinion rendered by its legal department that
her marriage with Bailon was void as it was contracted while the latter’s marriage with Alice was still
subsisting; and the December 10, 1970 CFI Order declaring Alice presumptively dead did not
become final, her "presence" being "contrary proof" against the validity of the order. It thus requested
respondent to return the amount of P24,000 representing the total amount of monthly pension she
had received from the SSS from February 1998 to May 1999.

Respondent protested the cancellation of her monthly pension for death benefits by letter to the SSS
dated October 12, 1999.24 In a subsequent letter dated November 27, 199925 to the SSC, she
reiterated her request for the release of her monthly pension, asserting that her marriage with Bailon
was not declared before any court of justice as bigamous or unlawful, hence, it remained valid and
subsisting for all legal intents and purposes as in fact Bailon designated her as his beneficiary.

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

Respondent thus filed a petition27 against the SSS before the SSC for the restoration to her of her
entitlement to monthly pension.

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

After the SSS filed its Answer29 to respondent’s petition, and the parties filed their respective Position
Papers, one Alicia P. Diaz filed an Affidavit 30 dated August 14, 2002 with the SSS Naga Branch
attesting that she is the widow of Bailon; she had only recently come to know of the petition filed by
Bailon to declare her presumptively dead; it is not true that she disappeared as Bailon could have
easily located her, she having stayed at her parents’ residence in Barcelona, Sorsogon after she
found out that Bailon was having an extramarital affair; and Bailon used to visit her even after their
separation.

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

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

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

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

SO ORDERED.31 (Underscoring supplied)

In so ruling against respondent, the SSC ratiocinated.

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

x xxx

There is x xx ample evidence pointing to the fact that, contrary to the declaration of the then CFI of
Sorsogon (10th Judicial District), the first wife never disappeared as the deceased member
represented in bad faith. This Commission accords credence to the findings of the SSS contained in
its Memorandum dated August 9, 1999,32 revealing that Alice (a.k.a. Aliz) Diaz never left Barcelona,
Sorsogon, after her separation from Clemente Bailon x xx.

As the declaration of presumptive death was extracted by the deceased member using artifice and
by exerting fraud upon the unsuspecting court of law, x xx it never had the effect of giving the
deceased member the right to marry anew. x xx [I]t is clear that the marriage to the petitioner is void,
considering that the first marriage on April 25, 1955 to Alice Diaz was not previously annulled,
invalidated or otherwise dissolved during the lifetime of the parties thereto. x xx as determined
through the investigation conducted by the SSS, Clemente Bailon was the abandoning spouse, not
Alice Diaz Bailon.

x xxx

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

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

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

Respondent’s Motion for Reconsideration 34 having been denied by Order of June 4, 2003, she filed a
petition for review35 before the Court of Appeals (CA).

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

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

x xxx

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

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

x xx [A]ssuming arguendo that respondent SSS actually possesses the authority to declare the

decision of the RTC to be without basis, the procedure it followed was offensive to the principle of
fair play and thus its findings are of doubtful quality considering that petitioner Teresita was not given
ample opportunity to present evidence for and her behalf.

x xxx

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

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

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

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

ISSUES:

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

II

THE HONORABLE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION AMOUNTING

TO LACK OF JURISDICTION.39

The SSS faults the CA for failing to give due consideration to the findings of facts of the SSC on the
prior and subsisting marriage between Bailon and Alice; in disregarding the authority of the SSC to
determine to whom, between Alice and respondent, the death benefits should be awarded pursuant
to Section 540 of the Social Security Law; and in declaring that the SSS did not give respondent due
process or ample opportunity to present evidence in her behalf.

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

The petition fails.

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

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

Article 83 of the Civil Code43 provides:

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

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

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

Under the foregoing provision of the Civil Code, a subsequent marriage contracted during
the lifetime of the first spouse is illegal and void ab initio unless the prior marriage is first
annulled or dissolved or contracted under any of the three exceptional circumstances. It
bears nothing that the marriage under any of these exceptional cases is deemed valid "until
declared null and void by a competent court." It follows that the onus probandi in these cases
rests on the party assailing the second marriage. 44

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

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

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

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

Under the Family Code, no judicial proceeding to annul a subsequent marriage is necessary.Thus

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

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

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

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

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

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

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

Similarly, Lapuz v. Eufemio53 instructs:

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

It bears reiterating that a voidable marriage cannot be assailed collaterally except in a direct
proceeding. Consequently, such marriages can be assailed only during the lifetime of the
parties and not after the death of either, in which case the parties and their offspring will be
left as if the marriage had been perfectly valid. 55 Upon the death of either, the marriage cannot
be impeached, and is made good ab initio.56
In the case at bar, as no step was taken to nullify, in accordance with law, Bailon’s and
respondent’s marriage prior to the former’s death in 1998, respondent is rightfully the
dependent spouse-beneficiary of Bailon.

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

WHEREFORE, the petition is DENIED.

No costs.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

WE CONCUR:

(ON OFFICIAL LEAVE)

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

ANTONIO T. CARPIO
Associate Justice
Acting Chairperson

DANTE O. TINGA
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO
Associate Justice
Acting Chairperson

G.R. No. 230751 April 25, 2018

ESTRELLITA TADEO-MATIAS, Petitioner
vs
REPUBLIC OF THE PHILIPPINES, Respondent

DECISION

VELASCO, JR., J.:
This is an appeal  assailing the Decision  dated November 28, 2016 and Resolution  dated March 20,
1 2 3

2017 of the Court of Appeals (CA) in CA-G.R. SP No. 129467.

The facts are as follows:

On April 10, 2012, petitioner EstrellitaTadco-Matias filed before the Regional Trail Court (RTC) of
Tarlac City a petition for the declaration of presumptive death of her husband, Wifredo N. Matias
(Wilfredo).  The allegations of the petition read:
4

1. [Petitioner] is of legal age, married to [Wilfredo], Filipino and curr[e]ntly a residnet of 106
Molavestreet, Zone B. San Miguel Tarlac City;

2. [Wifredo] is of legal age, a member of the Philippine Constabulary and was assigned in Araya,
Pampanga since August 24, 1967[;]

3. The[p]etitioner and [Wilfredo] entered into a lawful marriage on January 7, 1968 in Imbo, Anda,
Pangasinan x xx;

4. After the solemnization of their marriage vows, the couple put up their conjugal home at 106
Molavestreet, Zone B. San Miguel, Tarlac City;

5. [Wilfredo] continued to serve the Philippines and on September 15, 1979, he set out from their
conjugal home to again serve as a member of the Philippine Constabulary;

6. [Wilfredo] never came back from his tour of duty in Arayat, Pampanga since 1979 and he never
made contact or communicated with the [p]etitioner nor to his relatives;

7. That according to the service record of [Wilfredo] issued by the National Police Commission,
[Wilfredo] was already declared missing since 1979 x xx;

8. Petitioner constantly pestered the then Philippine Constabulary for any news regarding [her]
beloved husband [Wilfredo], but the Philippine Constabulary had no answer to his whereabouts,
[neither] did they have any news of him going AWOL, all they know was he was assigned to a place
frequented by the New People's Army;

9. [W]eeks became years and years became decades, but the [p]etitioner never gave up hope, and
after more than three (3) decades of awaiting, the [p]etitioner is still hopeful, but the times had been
tough on her, specially with a meager source of income coupled with her age, it is now necessary for
her to request for the benefits that rightfully belong to her in order to survive;

10. [T]hat one of the requirements to attain the claim of benefits is for a proof of death or at least
declaration of presumptive death by the Honorable Court;

11. That this petition is being filed not for any other purpose but solely to claim for the benefit under
P.D. No. 1638 as amended.

The petition was docketed as Spec. Proc. No. 4850 and was raffled to Branch 65 of the Tarlac City
RTC. A copy of the petition was then furnished to the Office of the Solicitor General (OSG)_.

Subsequently, the OSG filed its notice of appearance on behalf of herein respondent Republic of the
Philippines (Republic). 5
On January 15, 2012, the RTC issued a Decision  in Spec. Proc. No. 4850 granting the petition. The
6

dispositive portion of the Decision reads:

7

WHEREFORE in view of the foregoing the Court hereby declared (sic) WILFREDO N. MATIAS
absent or presumptively dead under Article 41 of the Family Code of the Philippines for purpose
of claiming financial benefits due to him as former military officer.

x xxx

SO ORDERED. (Emphasis supplied)

The Republic questioned the decision of the RTC via a petition for certiotrari.

8

On November 28, 2012, the CA rendered a decision granting the certiorari petition of the Republic
and setting aside the decision of the RTC. It accordingly disposed:

WHEREFORE, premises considered, the petition for certiorari is GRANTED. The Decision dated
January 15, 2012 of the Regional Trial Court, branch 65, Tarlac City, in Special Proceeding no. 4850
is ANNULED and SET ASIDE, and the petition is DISMISSED.

The CA premised its decision on the following ratiocinations:

1. The RTC erred when it declared Wilfredo presumptively dead on the basis of Article 41 of the
Family Code (FC). Article 41 of the FC does not seek to remarry. If anything, the petition was
invoking the presumption of death established under Articles 390 and 391 of the Civil Code, and not
that provided for under Article 41 of the FC.

2. Be that it may, the petition to declare Wilfredo presumptively dead should have been dismissed by
the RTC. The RTC is without authority to take cognizance of a petition whose sole purpose is to
have a person declared presumptively dead under either Article 390 or Article 391 of the Civil Code.
As been held by jurisprudence, Articles 390 and 391 of the Civil Code merely express rules of
evidence that allow a court or a tribunal to presume that a person is dead-which presumption may be
invoked in any action or proceeding, but itself cannot be the subject of an independent action or
proceeding.

Petitioner moved for reconsideration, but the CA remained steadfast. Hence,this appeal.

Our Ruling

We deny the appeal

The CA was correct. The petition for the declaration of presumptive death filed by the petitioner is
not an authorized suit and should have been dismissed by the RTC. The RTC's decision must,
therefore, be set aside.

RTC Erred I Declaring the

Presumptive Death of Wilfredo under
Article 41 of the FC; Petitioner's
Petition for the Declaration of
Presumptive Death is Not Based on
Article 41 of the FC, but on the Civil
Code

A conspicuous error in the decision of the RTC must first be addressed.

It can be recalled that the RTC, in fallo of its January 15, 2012 Decision, granted the petitioner's
petition by declaring Wilfredo presumptively dead "under Article 41 of the FC." By doing so, RTC
gave the impression that the petition for the declaration of presumptive death filed by petitioner was
likewise filed pursuant to Article 41 of the FC.  This is wrong.
9

The petition for the declaration of presumptive death filed by petitioner is not an action that
would have warranted the application of Article 41 of the FC shows that the presumption of
death established therein is only applicable for the purpose of contracting a valid
subsequent marriage under the said law. Thus:

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.

Here, petitioner was forthright that she was not seeking the declaration of the presumptive
death Wilfredo as a prerequisite for remarriage. In her petition for the declaration of
presumptive death, petitioner categorically stated that the same was filed "not for any other
purpose but solely to claim for the benefit under P.D. No. 1638 a amended. 10

Given that her petition for the declaration of presumptive death was not filed for the purpose of
remarriage, petitioner was clearly relying on the presumption of death under either Article 390
or Article 391 of the Civil Code  as the basis of her petition. Articles 390 and 391 of the Civil
11

Code express the general rule regarding presumption s of death for any civil purpose, to wit:

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

The absentee shall not be presumed dead for the purpose of opening his succession till after an
absence of five years shall be sufficient in order that his succession may be opened.

Art. 391. The following shall be presumed dead for all purposes, including the division of the estate
among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has
not been heard of for four years since the loss of the vessel or aeroplane;

(2) A person in the armed forces who has taken part in war, and has been missing for four years;
(3) a person who has been in danger of death under other circumstances and his existence has not
been known for four years.

Verily, the RTC's use of Article 41 of the FC as its basis in declaring the presumptive death of
Wilfredo was misleading and grossly improper.The petition for the declaration of presumptive
death filed by the petitioner was based on the Civil Code, and not on Article 41 of the FC.

Petitioner's Petition for Declaration of

Presumptive Death Ought to Have Been
Dismissed; A Petition Whose Sole Objective is
To Declare a Person Presumptively Dead Under
the CivilCode, Like that Filed by the Petitioner
Before the RTC, Is Not a Viable Suit in Our
Jurisdiction

The true fault in the RTC's decision, however, goes beyond its misleading fallo. The decision itself is
objectionable.

Since the petition filed by the petitioner merely seeks the declaration of presumptive death of
Wilfredo under the Civil Code, the RTC should have dismissed such petition outright. This is
because, in our jurisdiction, a petition whose sole objective is to have a person declared
presumptively dead under the Civil Code is not regarded as a valid suit and no court has any
authority to take cognizance of the same.

The above norm had its conceptual roots in the 1948 case of In re: Petition for the Presumption of
Death of Nicolai Szatraw.  In the said case, we held that a rule creating a presumption of death  is
12 13

merely one of the evidence that-while may be invoked in any action or proceeding-cannot be the
lone subject of an independent action or proceeding. Szatraw explained:

The rule invoked by the latter is merely one of the evidence which permits the court to presume that
a person had been unheard from in seven years had been established. This presumption may arise
and be invoked and made in a case, either in an action or in a special proceeding, which is tried or
heard by, and submitted for decision to, a competent court. Independently of such an action or
special proceeding, the presumption of death cannot be invoked, nor can it be made the
subject of an action or special proceeding. In this case, there is no right it be enforced nor is
there a remedy prayed for by the petitioner against her absent husband. Neither is there a
prayer for the final determination of his right or status or for the ascertainment of particular fact, for
the petition does not pray for the declaration that the petitioner 's husband us dead, but merely asks
for a declaration that he be presumed dead because he had been unheard from in seven years. If
there is any pretense at securing a declaration that the petitioner's husband is dead, such a
pretension cannot be granted because it is unauthorized. The petition is for a declaration, even if
judicially made, would not improve the petitioner's situation, because such a presumption is
already established by law. A judicial pronouncement to that effect, even if final and
executory, would be a prima facie presumption only. It is still disputable. It is for that reason
that it cannot be the subject of judicial pronouncement or declaration, if it is the only
question or matter involved in a case, or upon which a competent court has to pass. The latter
must decide finally the controversy between the parties, or determine finally the right or status of a
party or establish finally a particular fact, out of which certain rights and obligations arise or may
arise; and once such controversy is decided by a final decree, then the judgment on the subject of
the controversy, or the decree upon the right or status of a party or upon the existence of a particular
fact, becomes res judicata, subject to no collateral attack, except in a few rare instances especially
provided by law. It is, therefore, clear that judicial declaration that a person is presumptively dead,
because he had been unheard from in seven years, being a presumption juristantum only, subject to
contrary proof, cannot reach the stage of finality or become final. (Citations omitted and emphasis
supplied)

The above ruling in Szatraw has since been ussed by the subsequent cases of Lukban v.
Republic  and Gue v. Republic  in disallowing petitions for declaration of presumptive death based
14 15

on Article 390 of the Civil Code (and, implicity, also those based on the Civil based on Article 391 of
the Civil Code).

Dissecting the rulings of Szatraw, Gue and Lukban collectively, we are able to ascertain the

considerations why a petition for declaration of presumptive death based on the Civil Code was
disallowed in our jurisdiction, viz: 16

1. Articles 390 and 391 of the Civil Code merely express rules of evidence that only allow a court or
a tribunal to presume that a person is dead upon the establishment of certain facts.

2. Since Articles 390 an d 391 of the Civil Code merely express rules of evidence, an action
brought exclusively to declare a person presumptively dead under either of the said articles
actually presentsno actual controversy that a court could decide. In such action, there would
be no actual rights to be enforced, no wrong to be remedied nor any status to be established.

3. A judicial pronouncement declaring a person presumptively dead under Article 390 or Article 391
of the Civil Code, in an action exclusively based thereon, would never really become "final" as the
same only confirms the existence of a prima facie or disputable presumption.The function of a
court to render decisions that is supposed to be final and binding between litigants is thereby
compromised.

4. Moreover, a court action to declare a person presumptively dead under Articles 390 and 391 of
the Civil Code would be unnecessary. The presumption in the said articles is already
established by law.

Verily, under prevailing case law, courts are without any authority to take cognizance of a petition
that-like the one filed by the petitioner in the case at bench-only seeks to have a person declared
presumptively dead under the Civil Code. Such a petition is not authorized by law.  Hence, by
17

acting upon and eventually granting the petitioner's petition for the declaration of presumptive death,
the RTC violated prevailing jurisprudence and thereby committed grave abuse of
discretion.The CA, therefore, was only correct in setting aside the RTC's decision.

II

Before bringing this case to its logical conclusion, however, there are a few points the Court is
minded to make.

It is not lost on this Court that much of the present controversy stemmed from the misconception that
a court declaration is required in order to establish a person is presumptively dead for purposes of
claiming his death benefits as a military serviceman under pertinent laws.  This misconception is
18

what moved petitioner to file her misguided petition for the declaration of presumptive death of
Wilfredo and what ultimately exposed her to unnecessary difficulties in prosecuting an otherwise
simple claim for death benefits either before the Philippine Veterans' Affair Office (PVAO) of the
Armed Forces of the Philippines (AFP).
What the Court finds deeply disconnecting, however, is the possibility that such misconception may
have been peddles by no less than the PVAO and the AFP themselves; that such agencies, as a
matter of practice, had been requiring claimants, such as the petitioner, to first secure a court
declaration of presumptive death before processing the death before processing the death benefits
of missing serviceman.

In view of the foregoing circumstances, the Court deems it necessary to issue the following
guidelines-culled from relevant law and jurisprudential pronouncements-to aid the public,
PVAO and the AFP in making or dealing with claims of death benefits which are similar to
that of the petitioner:

1. The PVAO and the AFP can decide claims of death benefits of a missing soldier without
requiring the claimant to first produce a court declaration of the presumptive death of such
soldier. In such claims, the PVAO and the AFP can make their own determination, on the basis of
the evidence presented by the claimant, whether the presumption of death under Articles 390 and
391 of the Civil Code may be applied or not.

It must be stressed that the presumption of death under Articles 390 and 391 of the Civil Code arises
by operation of law, without need of a court declaration, once the factual conditions mentioned in the
said articles are established.  Hence, requiring the claimant to further secure a court declaration in
19

order to establish the presumptive death of a missing soldier is not proper and contravenes
established jurisprudence on the matter. 20

2. In order to avail of the presumption, therefore, the claimant need only present before the PVAO or
the appropriate office of the AFP, as the case may be, any "evidence"  which shows that the
21

concerned soldier had been missing for such number of years and or under the circumstances
prescribed under Articles 390 and 391 of the Civil Code. Obviously, the "evidence" referred to
here excludes a court declaration of presumptive death.

3. The PVAO or the AFP, as the case may be, may then weigh the evidence submitted by the
claimant and determine their sufficiency to establish the requisite factual conditions specified under
Article 390 or 391 of the Civil Code in order for the presumption of death to arise. If the PVAO or
the AFP determines that the evidence submitted by the claimant is sufficient, they should not
hesitate to apply the presumption of death and pay the latter's claim.

4. If the PVAO or the AFP determines that the evidence submitted by the claimant is not sufficient to
invoke the presumption of death under the Civil Code and denies the latter's claim by reason thereof,
the claimant may file an appeal with the Office of the President (OP) pursuant to the principle of
exhaustion of administrative remedies.

If the OP denies the appeal, the claimant may next seek recourse via a petition for review with the
CA under Rule 43 of the Rules of the Court.  And finally, should such recourse still fail, the claimant
1avvphi1

may file an appeal by certiorari with the Supreme Court.

While we are constrained by case law to deny the instant petition, the Court is hopeful that, by the
foregoing guidelines, the unfortunate experience of the petitioner would no longer be replicated in
the future.

WHEREFORE, the instant appeal is DENIED. The Decision dated November 28, 2016 and
Resolution dated March 20, 2017 of the Court of Appeals in CA-G.R. SP No. 129467
are AFFIRMED. The Court declares that a judicial decision of a court of law that a person is
presumptively dead is not requirement before the Philippine Veterans' Affairs Office and the Armed
Forces of the Philippines for their consideration.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR:

LUCAS P. BERSAMIN
Associate Justice

I dissent. See separate opinion

SAMUEL R. MARTIRES
MARVIC M.V.F. LEONEN
Associate Justice
Associate Justice

ALEXANDER G. GESMUNDO
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

G.R. No. 132955             October 27, 2006

ORLANDO VILLANUEVA, petitioner,
vs.
HON. COURT OF APPEALS and LILIA CANALITA-VILLANUEVA, respondents.

DECISION

YNARES-SANTIAGO, J.:

This petition for review under Rule 45 of the Rules of Court assails the January 26, 1998 Decision 1 of
the Court of Appeals in CA-G.R. CV No. 51832, affirming with modification the Decision 2 dated
January 12, 1996 of the Regional Trial Court of Valenzuela, Metro Manila, Branch 172 in Civil Case
No. 3997-V-92 (a) dismissing petitioner's petition for the annulment of his marriage to private
respondent and (b) ordering him to pay moral and exemplary damages, attorney’s fees and costs.
Also assailed is the March 5, 1998 Resolution3 denying petitioner’s motion for reconsideration.

The antecedent facts are as follows:

Petitioner Orlando Villanueva and private respondent Lilia Canalita-Villanueva got married on April
13, 1988 in Puerto Princesa, Palawan. On November 17, 1992, Orlando filed with the trial court a
petition for annulment of his marriage alleging that threats of violence and duress forced him into
marrying Lilia, who was already pregnant; that he did not get her pregnant prior to the marriage; that
he never cohabited with her after the marriage; and that he later learned that private respondent's
child died during delivery on August 29, 1988. 4

In her answer with compulsory counterclaim,5 Lilia prayed for the dismissal of the petition, arguing
that petitioner freely and voluntarily married her; that petitioner stayed with her in Palawan for almost
a month after their marriage; that petitioner wrote letters to her after he returned to Manila, during
which private respondent visited him personally; and that petitioner knew about the progress of her
pregnancy, which ended in their son being born prematurely. Private respondent also prayed for the
payment of moral and exemplary damages, attorney’s fees and costs.

On January 12, 1996, the trial court rendered judgment the dispositive portion of which states:

WHEREFORE, judgment is hereby rendered as follows:

1) Dismissing the above-entitled case; and

2) Ordering the plaintiff to pay the defendant moral damages in the amount of P100,000.00,
exemplary damages in the amount of P50,000.00, and attorney's fees in the amount of
P20,000.00, plus the costs of suit.

SO ORDERED.6

The Court of Appeals affirmed the trial court’s dismissal of the petition and the award of attorney’s
fees and costs, but reduced the award of moral and exemplary damages to P50,000.00 and
P25,000.00, respectively. The Court of Appeals denied petitioner’s motion for reconsideration,
hence, the instant petition for review based on the following assigned errors:

I. THE RESPONDENT COURT OF APPEALS COMMITTED A GRAVE ABUSE OF

DISCRETION IN NOT GRANTING THE ANNULMENT OF MARRIAGE THE CONSENT OF
THE PETITIONER HAVING BEEN OBTAINED BY FRAUD, INTIMIDATION AND UNDUE
AND IMPROPER PRESSURE AND INFLUENCE PLUS THE FACT THAT THERE WAS NO
COHABITATION WHATSOEVER BETWEEN PETITIONER AND PRIVATE RESPONDENT.

II. THE RESPONDENT COURT OF APPEALS COMMITTED GROSS ERROR IN

AWARDING MORAL AND EXEMPLARY DAMAGES AS WELL AS ATTORNEY'S FEES,
SAID AWARDS NOT BEING THOSE ALLOWED BY LAW.7

ISSUES:
The issues for resolution are (a) whether the subject marriage may be annulled on the ground of
vitiated consent; and (b) whether petitioner should be liable for moral and exemplary damages as
well as attorney’s fees and costs.

The petition is partly granted.

Factual findings of the Court of Appeals, especially if they coincide with those of the trial
court, as in the instant case, are generally binding on this Court.8 We affirm the findings of the
Court of Appeals that petitioner freely and voluntarily married private respondent and that no threats
or intimidation, duress or violence compelled him to do so, thus –

To begin with, We are at once disturbed by the circumstance that despite the alleged
coerced consent which supposedly characterized his marriage with Lilia on April 13, 1988, it
was only on November 17, 1992 or after a span of not less than four (4) years and eight (8)
months when Orlando took serious step to have the same marriage annulled.Unexplained,
the prolonged inaction evidently finds basis in Lilia’s allegation that this annulment suit was
filed by Orlando solely in the hope that a favorable judgment thereon would bolster his
defense, if not altogether bring about his acquittal in the criminal case for bigamy which was
then already pending against him.Unfortunately, however, let alone the fact that the criminal
case was admittedly decided ahead with a judgment of conviction against Orlando x xx even
the very outcome of the present case disappointed his expectation. At this late, with his
appeal in the bigamy case still pending with this Court x xx Orlando must be hoping against
hope that with a decree of annulment ensuing from this Court, he may yet secure an
acquittal in the same bigamy charge. Viewed in this perspective, the instant appeal is,
therefore, understandable.

But even in terms of merit, the recourse must have to fall.

Appellant anchored his prayer for the annulment of his marriage on the ground that he did
not freely consent to be married to the appellee. He cited several incidents that created on
his mind a reasonable and well-grounded fear of an imminent and grave danger to his life
and safety, to wit: the harassing phone calls from the appellee and strangers as well as the
unwanted visits by three men at the premises of the University of the East after his classes
thereat, and the threatening presence of a certain KaCelso, a supposed member of the New
People’s Army whom appellant claimed to have been hired by appellee and who
accompanied him in going to her home province of Palawan to marry her.

The Court is not convinced that appellant’s apprehension of danger to his person is
so overwhelming as to deprive him of the will to enter voluntarily to a contract of
marriage. It is not disputed that at the time he was allegedly being harassed, appellant
worked as a security guard in a bank. Given his employment at that time, it is reasonable to
assume that appellant knew the rudiments of self-defense, or, at the very least, the proper
way to keep himself out of harm’s way. For sure, it is even doubtful if threats were indeed
made to bear upon appellant, what with the fact that he never sought the assistance of the
security personnel of his school nor the police regarding the activities of those who were
threatening him. And neither did he inform the judge about his predicament prior to
solemnizing their marriage.

Appellant also invoked fraud to annul his marriage, as he was made to believe by appellee
that the latter was pregnant with his child when they were married. Appellant’s excuse that
he could not have impregnated the appellee because he did not have an erection during
their tryst is flimsy at best, and an outright lie at worst. The complaint is bereft of any
reference to his inability to copulate with the appellee. His counsel also conceded before the
lower court that his client had a sexual relationship with the appellee x xx. He also narrated x
xx that sometime in January 1988, he and the appellee went to a hotel where " the sexual act
was consummated, with the defendant on top" x xx.

Instead of providing proofs that he was tricked into marrying his wife, appellant resorted to
undermining the credibility of the latter by citing her testimony that her child was born, and
died, on August 29, 1989, a year off from August 29, 1988, the date of fetal death as
appearing in the registry of deaths of the Office of the Civil Registrar of Puerto Princesa City
x xx.

To Our mind, appellant cannot make capital of the lapse because it is inconsequential, as
there is no controversy regarding the date of death of appellee’s fetus.Nevertheless, during
the continuation of the cross-examination of the appellee, she declared that her child was
prematurely born on August 29, 1988, matching the date in the certification of the Civil
Registrar x xx. The Court is not prepared to disbelieve the appellee and throw overboard her
entire testimony simply on account of her confusion as to the exact date of the death of the
fetus, especially when she herself had presented documentary evidence that put August 29,
1988 as the date her fetus died.

Appellant’s propensity to rely on his perceived weakness of the appellee’s evidence

continues in his argument that if indeed there is truth to her claim that she was impregnated
sometime in December 1987, then she could not have a premature delivery on August 29,
1988, as she had testified during the trial, because the 35-week period of pregnancy is
complete by that time. Whether the appellee’s impression that she had delivered
prematurely is correct or not will not affect the fact that she had delivered a fetus on
August 29, 1988. In the light of appellant’s admission that he had a sexual intercourse
with his wife in January 1988, and his failure to attribute the latter’s pregnancy to any
other man, appellant cannot complain that he was deceived by the appellee into
marrying her.

Appellant also puts in issue the lower court’s appreciation of the letters allegedly written by
him to the appellee. During his cross-examination, when confronted with thirteen (13) letters,
appellant identified the seven (7) letters that he sent to the appellee, but denied the
remaining six (6) x xx. The letters admitted by the appellant contained expressions of
love and concern for his wife, and hardly the rantings of a man under duress.During
the re-direct examination, however, appellant suddenly changed mind and denied authorship
of those seven (7) letters, claiming that he was forced to admit them because he was
threatened with harm by the appellee. If he was laboring under duress when he made the
admission, where did he find the temerity to deny his involvement with the remaining six (6)
letters? The recantation can only be motivated by a hindsight realization by the appellant of
the evidentiary weight of those letters against his case.

As to the second assignment of error, appellant cannot claim that his marriage should be
annulled due to the absence of cohabitation between him and his wife. Lack of
cohabitation is, per se, not a ground to annul a marriage.Otherwise, the validity of a
marriage will depend upon the will of the spouses who can terminate the marital union by
refusing to cohabitate. The failure to cohabit becomes relevant only if it arises as a result of
the perpetration of any of the grounds for annulling the marriage, such as lack of parental
consent, insanity, fraud, intimidation, or undue influence x xx. Since the appellant failed to
justify his failure to cohabit with the appellee on any of those grounds, the validity of
his marriage must be upheld.9
We also agree that private respondent is entitled to attorney’s fees. Article 2208 (11) of the
Civil Code provides that attorney’s may be awarded where the court deems it just and
equitable under the circumstances, as in the instant case.

We, however, delete the award of moral and exemplary damages for lack of factual and legal basis.
There is nothing in the records or in the appealed decision that would support an award of moral
damages. In justifying the award, the Court of Appeals merely said thus:

It is not difficult to imagine the suffering of the appellee from the baseless portrayal of her by
the appellant as the perpetrator of fraudulent schemes to trap an unwilling mate. x x x 10

However, the aforesaid finding is only a supposition as it has no reference to any testimony of
private respondent detailing her alleged physical suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury as
would entitle her to moral damages.

In Mahinay v. Velasquez, Jr.,11 we held that:

In order that moral damages may be awarded, there must be pleading and proof of moral
suffering, mental anguish, fright and the like. While respondent alleged in his complaint that
he suffered mental anguish, serious anxiety, wounded feelings and moral shock, he failed to
prove them during the trial. Indeed, respondent should have taken the witness stand and
should have testified on the mental anguish, serious anxiety, wounded feelings and other
emotional and mental suffering he purportedly suffered to sustain his claim for moral
damages. Mere allegations do not suffice; they must be substantiated by clear and
convincing proof. No other person could have proven such damages except the respondent
himself as they were extremely personal to him.

As private respondent is not entitled to moral damages, a fortiori, she is not entitled to exemplary
damages. This is clear in Article 2234 of the Civil Code, which provides:

ART. 2234. While the amount of the exemplary damages need not be proved, the plaintiff
must show that he is entitled to moral, temperate or compensatory damages before the court
may consider the question of whether or not exemplary damages should be awarded. In
case liquidated damages have been agreed upon, although no proof of loss is necessary in
order that such liquidated damages may be recovered, nevertheless, before the court may
consider the question of granting exemplary in addition to the liquidated damages, the
plaintiff must show that he would be entitled to moral, temperate or compensatory damages
were it not for the stipulation for liquidated damages.

Hence, exemplary damages is allowed only in addition to moral damages such that no exemplary
damages can be awarded unless the claimant first establishes his clear right to moral damages. 12 In
the instant case, private respondent failed to satisfactorily establish her claim for moral damages,
thus she is not likewise entitled to exemplary damages.

WHEREFORE, the petition is PARTLY GRANTED. The January 26, 1998 Decision of the Court of
Appeals in CA-G.R. CV No. 51832 affirming with modification the January 12, 1996 Decision of the
Regional Trial Court of Valenzuela, Metro Manila, Branch 172 in Civil Case No. 3997-V-92
dismissing petitioner’s petition for the annulment of his marriage with private respondent,
is AFFIRMED. However, the award of moral and exemplary damages is DELETED for lack of basis.
SO ORDERED.

Panganiban, C.J. (Chairperson), Austria-Martinez, Callejo, Sr., and Chico-Nazario, JJ., concur.

OID MARRIAGES

THIRD DIVISION

G.R. No. 179620             August 26, 2008

MANUEL G. ALMELOR, petitioner,
vs.
THE HON. REGIONAL TRIAL COURT OF LAS PIÑAS CITY, BRANCH 254, and LEONIDA T.
ALMELOR, respondents.

DECISION

REYES, R.T., J.:

MARRIAGE, in its totality, involves the spouses' right to the community of their whole lives. It likewise
involves a true intertwining of personalities.1

This is a petition for review on certiorari of the Decision2 of the Court of Appeals (CA) denying the petition
for annulment of judgment and affirming in toto the decision of the Regional Trial Court (RTC), Las Piñas,
Branch 254. The CA dismissed outright the Rule 47 petition for being the wrong remedy.

The Facts

Petitioner Manuel G. Almelor (Manuel) and respondent Leonida Trinidad (Leonida)were married on
January 29, 1989 at the Manila Cathedral.3 Their union bore three children: (1) Maria Paulina Corinne,
born on October 20, 1989; (2) Napoleon Manuel, born on August 9, 1991; and (3) Manuel Homer, born on
July 4, 1994.4 Manuel and Leonida are both medical practitioners, an anesthesiologist and a pediatrician,
respectively.5

After eleven (11) years of marriage, Leonida filed a petition with the RTC in Las Piñas City to annul their
marriage on the ground that Manuel was psychologically incapacitated to perform his marital obligations.
The case, docketed as LP-00-0132 was raffled off to Branch 254.

During the trial, Leonida testified that she first met Manuel in 1981 at the San Lazaro Hospital where they
worked as medical student clerks. At that time, she regarded Manuel as a very thoughtful person who got
along well with other people. They soon became sweethearts. Three years after, they got married. 6

Leonida averred that Manuel's kind and gentle demeanor did not last long. In the public eye, Manuel was
the picture of a perfect husband and father.This was not the case in his private life. At home, Leonida
described Manuel as a harsh disciplinarian, unreasonably meticulous, easily angered. Manuel's
unreasonable way of imposing discipline on their children was the cause of their frequent fights as a
couple.7 Leonida complained that this was in stark contrast to the alleged lavish affection Manuel has for
his mother. Manuel's deep attachment to his mother and his dependence on her decision-making were
incomprehensible to Leonida.8
Further adding to her woes was his concealment to her of his homosexuality. Her suspicions were first
aroused when she noticed Manuel's peculiar closeness to his male companions. For instance, she caught
him in an indiscreet telephone conversation manifesting his affection for a male caller. 9 She also found
several pornographic homosexual materials in his possession. 10 Her worse fears were confirmed when
she saw Manuel kissed another man on the lips. The man was a certain Dr. Nogales. 11 When she
confronted Manuel, he denied everything.At this point, Leonida took her children and left their conjugal
abode. Since then, Manuel stopped giving support to their children. 12

Dr. Valentina delFonso Garcia, a clinical psychologist, was presented to prove Leonida's claim. Dr.
delFonso Garcia testified that she conducted evaluative interviews and a battery of psychiatric tests on
Leonida. She also had a one-time interview with Manuel and face-to-face interviews with Ma. Paulina
Corrinne (the eldest child).13 She concluded that Manuel is psychologically incapacitated. 14 Such
incapacity is marked by antecedence; it existed even before the marriage and appeared to be incurable.

Manuel, for his part, admitted that he and Leonida had some petty arguments here and there. He,
however, maintained that their marital relationship was generally harmonious. The petition for annulment
filed by Leonida came as a surprise to him.

Manuel countered that the true cause of Leonida's hostility against him was their professional rivalry. It
began when he refused to heed the memorandum15 released by Christ the King Hospital. The
memorandum ordered him to desist from converting his own lying-in clinic to a primary or secondary
hospital.16 Leonida's family owns Christ the King Hospital which is situated in the same subdivision as
Manuel's clinic and residence.17 In other words, he and her family have competing or rival hospitals in the
same vicinity.

Manuel belied her allegation that he was a cruel father to their children. He denied maltreating them. At
most, he only imposed the necessary discipline on the children.

He also defended his show of affection for his mother. He said there was nothing wrong for him to return
the love and affection of the person who reared and looked after him and his siblings. This is especially
apt now that his mother is in her twilight years. 18 Manuel pointed out that Leonida found fault in this
otherwise healthy relationship because of her very jealous and possessive nature.19

This same overly jealous behavior of Leonida drove Manuel to avoid the company of female friends. He
wanted to avoid any further misunderstanding with his wife. But, Leonida instead conjured up stories
about his sexual preference. She also fabricated tales about pornographic materials found in his
possession to cast doubt on his masculinity.20

To corroborate his version, he presented his brother, Jesus G. Almelor. Jesus narrated that he usually
stayed at Manuel's house during his weekly trips to Manila from Iriga City. He was a witness to the
generally harmonious relationship between his brother Manuel and sister-in-law, Leonida. True, they had
some quarrels typical of a husband and wife relationship. But there was nothing similar to what Leonida
described in her testimony.21

Jesus further testified that he was with his brother on the day Leonida allegedly saw Manuel kissed
another man. He denied that such an incident occurred. On that particular date,22 he and Manuel went
straight home from a trip to Bicol. There was no other person with them at that time, except their driver. 23

Manuel expressed his intention to refute Dr. delFonso Garcia's findings by presenting his own expert
witness. However, no psychiatrist was presented.

RTC Disposition
By decision dated November 25, 2005, the RTC granted the petition for annulment, with the following
disposition:

WHEREFORE, premised on the foregoing, judgment is hereby rendered:

1. Declaring the marriage contracted by herein parties on 29 January 1989 and all its effects
under the law null and void from the beginning;

2. Dissolving the regime of community property between the same parties with forfeiture of
defendant's share thereon in favor of the same parties' children whose legal custody is awarded
to plaintiff with visitorial right afforded to defendant;

3. Ordering the defendant to give monthly financial support to all the children; and

4. Pursuant to the provisions of A.M. No. 02-11-10-SC:

a. Directing the Branch Clerk of this Court to enter this Judgment upon its finality in the
Book of Entry of Judgment and to issue an Entry of Judgment in accordance thereto; and

b. Directing the Local Civil Registrars of Las Piñas City and Manila City to cause the
registration of the said Entry of Judgment in their respective Books of Marriages.

Upon compliance, a decree of nullity of marriage shall be issued.

SO ORDERED.24 (Emphasis supplied)

The trial court nullified the marriage, not on the ground of Article 36, but Article 45 of the Family Code. It
ratiocinated:

x xx a careful evaluation and in-depth analysis of the surrounding circumstances of the

allegations in the complaint and of the evidence presented in support thereof (sic) reveals that in
this case (sic) there is more than meets the eyes (sic).

Both legally and biologically, homosexuality x xx is, indeed, generally incompatible with hetero
sexual marriage. This is reason enough that in this jurisdiction (sic) the law recognizes marriage
as a special contract exclusively only between a man and a woman x xx and thus when
homosexuality has trespassed into marriage, the same law provides ample remedies to correct
the situation [Article 45(3) in relation to Article 46(4) or Article 55, par. 6, Family Code]. This is of
course in recognition of the biological fact that no matter how a man cheats himself that he is not
a homosexual and forces himself to live a normal heterosexual life, there will surely come a time
when his true sexual preference as a homosexual shall prevail in haunting him and thus
jeopardizing the solidity, honor, and welfare of his own family. 25

Manuel filed a notice of appeal which was, however, denied due course. Undaunted, he filed a petition for
annulment of judgment with the CA.26

Manuel contended that the assailed decision was issued in excess of the lower court's jurisdiction; that it
had no jurisdiction to dissolve the absolute community of property and forfeit his conjugal share in favor of
his children.

CA Disposition
On July 31, 2007, the CA denied the petition, disposing as follows:

WHEREFORE, the present Petition for Annulment of Judgment is hereby DENIED. The Court
AFFIRMS in toto the Decision (dated November 25, 2005) of the Regional Trial Court (Branch
254), in Las Piñas City, in Civil Case No. LP-00-0132. No costs. 27

The CA stated that petitioner pursued the wrong remedy by filing the extraordinary remedy of petition for
annulment of judgment. Said the appellate court:

It is obvious that the petitioner is questioning the propriety of the decision rendered by the lower
Court. But the remedy assuming there was a mistake is not a Petition for Annulment of Judgment
but an ordinary appeal. An error of judgment may be reversed or corrected only by appeal.

What petitioner is ascribing is an error of judgment, not of jurisdiction, which is properly the
subject of an ordinary appeal.

In short, petitioner admits the jurisdiction of the lower court but he claims excess in the exercise
thereof. "Excess" assuming there was is not covered by Rule 47 of the 1997 Rules of Civil
Procedure. The Rule refers the lack of jurisdiction and not the exercise thereof. 28

Issues

Petitioner Manuel takes the present recourse via Rule 45, assigning to the CA the following errors:

THE HONORABLE COURT OF APPEALS ERRED IN NOT TREATING THE PETITION FOR
ANNULMENT OF JUDGMENT AS A PETITION FOR REVIEW IN VIEW OF THE IMPORTANCE
OF THE ISSUES INVOLVED AND IN THE INTEREST OF JUSTICE;

II

THE HONORABLE COURT OF APPEALS ERRED IN UPHOLDING THE DECISION OF THE

TRIAL COURT AS REGARDS THE ORDER DECLARING THE MARRIAGE AS NULL AND
VOID ON THE GROUND OF PETITIONER'S PSYCHOLOGICAL INCAPACITY;

III

THE HONORABLE COURT OF APPEALS ERRED IN UPHOLDING THE DECISION OF THE

TRIAL COURT AS REGARDS THE ORDER TO FORFEIT THE SHARE OF PETITIONER IN HIS
SHARE OF THE CONJUGAL ASSETS.29

Our Ruling

I. The stringent rules of procedures may be relaxed to serve the demands of substantial justice
and in the Court's exercise of equity jurisdiction.

Generally, an appeal taken either to the Supreme Court or the CA by the wrong or inappropriate mode
shall be dismissed.30 This is to prevent the party from benefiting from one's neglect and
mistakes. However, like most rules, it carries certain exceptions. After all, the ultimate purpose of all
rules of procedures is to achieve substantial justice as expeditiously as possible. 31
Annulment of judgment under Rule 47 is a last remedy. It can not be resorted to if the ordinary remedies
are available or no longer available through no fault of petitioner. 32 However, in Buenaflor v. Court of
Appeals,33 this Court clarified the proper appreciation for technical rules of procedure, in this wise:

Rulesof procedures are intended to promote, not to defeat, substantial justice and,
therefore, they should not be applied in a very rigid and technical sense.The exception is
that while the Rules are liberally construed, the provisions with respect to the rules on the
manner and periods for perfecting appeals are strictly applied. As an exception to the
exception, these rules have sometimes been relaxed on equitable considerations . Also, in
some cases the Supreme Court has given due course to an appeal perfected out of time where a
stringent application of the rules would have denied it, but only when to do so would serve the
demands of substantial justice and in the exercise of equity jurisdiction of the Supreme
Court.34 (Emphasis and underscoring supplied)

For reasons of justice and equity, this Court has allowed exceptions to the stringent rules governing
appeals.35 It has, in the past, refused to sacrifice justice for technicality. 36

After discovering the palpable error of his petition, Manuel seeks the indulgence of this Court to consider
his petition before the CA instead as a petition for certiorari under Rule 65.

A perusal of the said petition reveals that Manuel imputed grave abuse of discretion to the lower court for
annulling his marriage on account of his alleged homosexuality. This is not the first time that this Court is
faced with a similar situation. In Nerves v. Civil Service Commission,37 petitioner Delia R. Nerves elevated
to the CA a Civil Service Commission (CSC) decision suspending her for six (6) months. The CSC ruled
Nerves, a public school teacher, is deemed to have already served her six-month suspension during
the pendency of the case. Nevertheless, she is ordered reinstated without back wages.On appeal, Nerves
stated in her petition, inter alia:

1. This is a petition for certiorari filed pursuant to Article IX-A, Section 7 of the Constitution of the
Philippines and under Rule 65 of the Rules of Court.

2. But per Supreme Court Revised Administrative Circular No. 1-95 (Revised Circular No. 1-91)
petitioner is filing the instant petition with this Honorable Court instead of the Supreme
Court.38 (Underscoring supplied)

The CA dismissed Nerves' petition for certiorari for being the wrong remedy or the inappropriate mode of
appeal.39 The CA opined that "under the Supreme Court Revised Administrative Circular No. 1-95 x xx
appeals from judgments or final orders or resolutions of CSC is by a petition for review."40

This Court granted Nerves petition and held that she had substantially complied with the Administrative
Circular. The Court stated:

That it was erroneously labeled as a petition for certiorari under Rule 65 of the Rules of Court is
only a minor procedural lapse, not fatal to the appeal. x xx

More importantly, the appeal on its face appears to be impressed with merit. Hence, the Court of
Appeals should have overlooked the insubstantial defects of the petition x xx in order to do justice
to the parties concerned. There is, indeed, nothing sacrosanct about procedural rules, which
should be liberally construed in order to promote their object and assist the parties in obtaining
just, speedy, and inexpensive determination of every action or proceeding. As it has been said,
where the rigid application of the rules would frustrate substantial justice, or bar the vindication of
a legitimate grievance, the courts are justified in exempting a particular case from the operation of
the rules.41 (Underscoring supplied)
Similarly, in themore recent case of Tan v. Dumarpa,42 petitioner Joy G. Tan availed of a wrong remedy
by filing a petition for review on certiorari instead of a motion for new trial or an ordinary appeal. In the
interest of justice, this Court considered the petition, pro hac vice, as a petition for certiorari under Rule
65.

This Court found that based on Tan's allegations, the trial court prima facie committed grave abuse of
discretion in rendering a judgment by default. If uncorrected, it will cause petitioner great injustice. The
Court elucidated in this wise:

Indeed, where as here, there is a strong showing that grave miscarriage of justice would result
from the strict application of the Rules, we will not hesitate to relax the same in the interest of
substantial justice.43 (Underscoring supplied)

Measured by the foregoing yardstick, justice will be better served by giving due course to the present
petition and treating petitioner's CA petition as one for certiorari under Rule 65, considering that what is at
stake is the validity or non-validity of a marriage.

In Salazar v. Court of Appeals,44 citing Labad v. University of Southeastern Philippines, this Court

reiterated:

x xxThe dismissal of appeals on purely technical grounds is frowned upon. While the right to
appeal is a statutory, not a natural right, nonetheless it is an essential part of our judicial system
and courts should proceed with caution so as not to deprive a party of the right to appeal, but
rather, ensure that every party-litigant has the amplest opportunity for the proper and just
disposition of his cause, free from the constraints of technicalities. 45

Indeed, it is far better and more prudent for a court to excuse a technical lapse and afford the parties a
review of the case on the merits to attain the ends of justice. 46

Furthermore, it was the negligence and incompetence of Manuel's counsel that prejudiced his right to
appeal. His counsel, Atty. Christine Dugenio, repeatedly availed of inappropriate remedies. After the
denial of her notice of appeal, she failed to move for reconsideration or new trial at the first instance. She
also erroneously filed a petition for annulment of judgment rather than pursue an ordinary appeal.

These manifest errors were clearly indicative of counsel's incompetence. These gravely worked to the
detriment of Manuel's appeal. True it is that the negligence of counsel binds the client. Still, this Court has
recognized certain exceptions:(1) where reckless or gross negligence of counsel deprives the client of
due process of law; (2) when its application will result in outright deprivation of the client's liberty and
property; or (3) where the interest of justice so require. 47

The negligence of Manuel's counsel falls under the exceptions. Ultimately, the reckless or gross
negligence of petitioner's former counsel led to the loss of his right to appeal. He should not be made to
suffer for his counsel's grave mistakes. Higher interests of justice and equity demand that he be allowed
to ventilate his case in a higher court.

In Apex Mining, Inc. v. Court of Appeals,48 this Court explained thus:

It is settled that the negligence of counsel binds the client. This is based on the rule that any act
performed by a counsel within the scope of his general or implied authority is regarded as an act
of his client. However, where counsel is guilty of gross ignorance, negligence and dereliction of
duty, which resulted in the client's being held liable for damages in a damage suit, the client is
deprived of his day in court and the judgment may be set aside on such ground. In the instant
case, higher interests of justice and equity demand that petitioners be allowed to present
 evidence on their defense. Petitioners may not be made to suffer for the lawyer's mistakes. This
Court will always be disposed to grant relief to parties aggrieved by perfidy, fraud,
reckless inattention and downright incompetence of lawyers, which has the consequence
of depriving their clients, of their day in court.49 (Emphasis supplied)

Clearly, this Court has the power to except a particular case from the operation of the rule whenever the
demands of justice require it.With more conviction should it wield such power in a case involving the
sacrosanct institution of marriage. This Court is guided with the thrust of giving a party the fullest
opportunity to establish the merits of one's action.50

The client was likewise spared from counsel's negligence in Government Service Insurance System v.
Bengson Commercial Buildings, Inc.51 and Ancheta v. Guersey-Dalaygon.52 Said the Court in Bengson:

But if under the circumstances of the case, the rule deserts its proper office as an aid to justice
and becomes a great hindrance and chief enemy,its rigors must be relaxed to admit exceptions
thereto and to prevent a miscarriage of justice. In other words, the court has the power to except
a particular case from the operation of the rule whenever the purposes of justice require it.53

II. Concealment of homosexuality is the proper ground to annul a marriage, not homosexuality per
se.

Manuel is a desperate man determined to salvage what remains of his marriage. Persistent in his quest,
he fought back all the heavy accusations of incapacity, cruelty, and doubted masculinity thrown at him.

The trial court declared that Leonida's petition for nullity had "no basis at all because the supporting
grounds relied upon can not legally make a case under Article 36 of the Family Code." It went further
by citing Republic v. Molina:54

Indeed, mere allegations of conflicting personalities, irreconcilable differences, incessant quarrels

and/or beatings, unpredictable mood swings, infidelities, vices, abandonment, and difficulty,
neglect, or failure in the performance of some marital obligations do not suffice to establish
psychological incapacity.55

If so, the lower court should have dismissed outright the petition for not meeting the guidelines set in
Molina. What Leonida attempted to demonstrate were Manuel's homosexual tendencies by citing overt
acts generally predominant among homosexual individuals. 56 She wanted to prove that theperceived
homosexuality rendered Manuel incapable of fulfilling the essential marital obligations.

But instead of dismissing the petition, the trial court nullified the marriage between Manuel and Leonida
on the ground of vitiated consent by virtue of fraud. In support of its conclusion, the lower court reasoned
out:

As insinuated by the State (p. 75, TSN, 15 December 2003), when there is smoke surely there is
fire.Although vehemently denied by defendant, there is preponderant evidence enough to
establish with certainty that defendant is really a homosexual. This is the fact that can
be deduced from the totality of the marriage life scenario of herein parties.

Before his marriage, defendant knew very well that people around him even including his own
close friends doubted his true sexual preference (TSN, pp. 35-36, 13 December 2000; pp. 73-75,
15 December 2003). After receiving many forewarnings, plaintiff told defendant about the rumor
she heard but defendant did not do anything to prove to the whole world once and for all the truth
of all his denials. Defendant threatened to sue those people but nothing happened after that.
There may have been more important matters to attend to than to waste time and effort filing
 cases against and be effected by these people and so, putting more premiums on defendant's
denials, plaintiff just the same married him. Reasons upon reasons may be advanced to either
exculpate or nail to the cross defendant for his act of initially concealing his homosexuality to
plaintiff, but in the end, only one thing is certain - even during his marriage with plaintiff, the
smoke of doubt about his real preference continued and even got thicker, reason why obviously
defendant failed to establish a happy and solid family; and in so failing, plaintiff and their children
became his innocent and unwilling victims.

Yes, there is nothing untoward of a man if, like herein defendant, he is meticulous over even
small details in the house (sic) like wrongly folded bed sheets, etc. or if a man is more
authoritative in knowing what clothes or jewelry shall fit his wife (pp. 77-81, TSN, 15 December
2003); but these admissions of defendant taken in the light of evidence presented apparently
showing that he had extra fondness of his male friends (sic) to the extent that twice on separate
occasions (pp. 4-7, TSN, 14 February 2001) he was allegedly seen by plaintiff kissing another
man lips-to-lips plus the homosexual magazines and tapes likewise allegedly discovered
underneath his bed (Exhibits "L" and "M"), the doubt as to his real sex identity becomes stronger.
The accusation of plaintiff versus thereof of defendant may be the name of the game in this case;
but the simple reason of professional rivalry advanced by the defendant is certainly not enough to
justify and obscure the question why plaintiff should accuse him of such a very untoward infidelity
at the expense and humiliation of their children and family as a whole. 57

Evidently, no sufficient proof was presented to substantiate the allegations that Manuel is a homosexual
and that he concealed this to Leonida at the time of their marriage. The lower court considered the public
perception of Manuel's sexual preference without the corroboration of witnesses. Also, it took cognizance
of Manuel's peculiarities and interpreted it against his sexuality.

Even assuming, ex gratia argumenti, that Manuel is a homosexual, the lower court cannot appreciate it as
a ground to annul his marriage with Leonida.The law is clear - a marriage may be annulled when the
consent of either party was obtained by fraud,58 such as concealment of homosexuality.59 Nowhere in the
said decision was it proven by preponderance of evidence that Manuel was a homosexual at the onset of
his marriage and that he deliberately hid such fact to his wife. 60 It is the concealment of homosexuality,
and not homosexuality per se, that vitiates the consent of the innocent party.Such concealment
presupposes bad faith and intent to defraud the other party in giving consent to the marriage.

Consent is an essential requisite of a valid marriage. To be valid, it must be freely given by both
parties.An allegation of vitiated consent must be proven by preponderance of evidence. The Family Code
has enumerated an exclusive list of circumstances61 constituting fraud. Homosexuality per se is not
among those cited, but its concealment.

This distinction becomes more apparent when we go over the deliberations 62 of the Committees on the
Civil Code and Family Law, to wit:

Justice Caguioa remarked that this ground should be eliminated in the provision on the grounds
for legal separation. Dean Gupit, however, pointed out that in Article 46, they are talking only of
"concealment," while in the article on legal separation, there is actuality. Judge Diy added that in
legal separation, the ground existed after the marriage, while in Article 46, the ground existed at
the time of the marriage. Justice Reyes suggested that, for clarity, they add the phrase "existing
at the time of the marriage" at the end of subparagraph (4). The Committee approved the
suggestion.63

To reiterate, homosexuality per se is only a ground for legal separation. It is its concealment that
serves as a valid ground to annul a marriage.64 Concealment in this case is not simply a blanket
denial, but one that is constitutive of fraud. It is this fundamental element that respondent failed to
prove.
In the United States, homosexuality has been considered as a basis for divorce. It indicates that
questions of sexual identity strike so deeply at one of the ba sic elements of marriage, which is the
exclusive sexual bond between the spouses.65  In Crutcher v. Crutcher,66 the Court held:

Unnatural practices of the kind charged here are an infamous indignity to the wife, and which
would make the marriage relation so revolting to her that it would become impossible for her to
discharge the duties of a wife, and would defeat the whole purpose of the relation. In the natural
course of things, they would cause mental suffering to the extent of affecting her health. 67

However, although there may be similar sentiments here in the Philippines, the legal overtones are
significantly different. Divorce is not recognized in the country. Homosexuality and its alleged
incompatibility to a healthy heterosexual life are not sanctioned as grounds to sever the marriage
bond in our jurisdiction. At most, it is only a ground to separate from bed and board.

What was proven in the hearings a quo was a relatively blissful marital union for more than eleven (11)
years, which produced three (3) children. The burden of proof to show the nullity of the marriage
rests on Leonida.Sadly, she failed to discharge this onus.

The same failure to prove fraud which purportedly resulted to a vitiated marital consent was found
in Villanueva v. Court of Appeals.68 In Villanueva, instead of proving vitiation of consent,appellant
resorted to baseless portrayals of his wife as a perpetrator of fraudulent schemes.Said the Court:

Factual findings of the Court of Appeals, especially if they coincide with those of the trial court, as
in the instant case, are generally binding on this Court. We affirm the findings of the Court of
Appeals that petitioner freely and voluntarily married private respondent and that no threats or
intimidation, duress or violence compelled him to do so, thus -

Appellant anchored his prayer for the annulment of his marriage on the ground that he did not
freely consent to be married to the appellee. He cited several incidents that created on his mind a
reasonable and well-grounded fear of an imminent and grave danger to his life and safety. x xx

The Court is not convinced that appellant's apprehension of danger to his person is so
overwhelming as to deprive him of the will to enter voluntarily to a contract of marriage. It
is not disputed that at the time he was allegedly being harassed, appellant worked as a
security guard in a bank. Given the rudiments of self-defense, or, at the very least, the proper
way to keep himself out of harm's way. x xx

Appellant also invoked fraud to annul his marriage, as he was made to believe by appellee that
the latter was pregnant with his child when they were married. Appellant's excuse that he could
not have impregnated the appellee because he did not have an erection during their tryst is flimsy
at best, and an outright lie at worst. The complaint is bereft of any reference to his inability to
copulate with the appellee. x xx

x xxx

x xx The failure to cohabit becomes relevant only if it arises as a result of the perpetration of any
of the grounds for annulling the marriage, such as lack of parental consent, insanity, fraud,
intimidation, or undue influence x xx. Since the appellant failed to justify his failure to cohabit
with the appellee on any of these grounds, the validity of his marriage must be upheld.69

Verily, the lower court committed grave abuse of discretion, not only by solely taking into account
petitioner's homosexuality per se and not its concealment, but by declaring the marriage void
from its existence.
This Court is mindful of the constitutional policy to protect and strengthen the family as the
basic autonomous social institution and marriage as the foundation of the family. 70 The State and
the public have vital interest in the maintenance and preservation of these social institutions
against desecration by fabricated evidence.71  Thus, any doubt should be resolved in favor of the
validity of marriage.

III. In a valid marriage, the husband and wife jointly administer and enjoy their community or
conjugal property.

Article 96 of the Family Code, on regimes of absolute community property, provides:

Art. 96. The administration and enjoyment of the community 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 a 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 common properties, the other spouse may assume sole powers of
administration. These powers do not include the powers of disposition or encumbrance without
the 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 as a continuing offer on the part of the consenting spouse and the third person, and
may be perfected as a binding contract upon the acceptance by the other spouse or authorization
by the court before the offer is withdrawn by either or both offerors.

A similar provision, Article 12472 prescribes joint administration and enjoyment in a regime of

conjugal partnership. In a valid marriage, both spouses exercise administration and enjoyment of
the property regime, jointly.

In the case under review, the RTC decreed a dissolution of the community property of Manuel and
Leonida. In the same breath, the trial court forfeited Manuel's share in favor of the children.
Considering that the marriage is upheld valid and subsisting, the dissolution and forfeiture of
Manuel's share in the property regime is unwarranted. They remain the joint administrators of the
community property.

WHEREFORE, the petition is GRANTED. The appealed Decision is REVERSED and SET ASIDE and

the petition in the trial court to annul the marriage is DISMISSED.

SO ORDERED.

RUBEN T. REYES
Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
 MA. ALICIA AUSTRIA-MARTINEZ MINITA V. CHICO-NAZARIO
Associate Justice Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court's Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify
that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court's Division.

REYNATO S. PUNO
Chief Justice

G.R. No. 158298               August 11, 2010

ISIDRO ABLAZA, Petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, Respondent.

DECISION

BERSAMIN, J.:

Whether a person may bring an action for the declaration of the absolute nullity of the marriage of
his deceased brother solemnized under the regime of the old Civil Code is the legal issue to be
determined in this appeal brought by the petitioner whose action for that purpose has been
dismissed by the lower courts on the ground that he, not being a party in the assailed marriage, had
no right to bring the action.

Antecedents

On October 17, 2000, the petitioner filed in the Regional Trial Court (RTC) in Cataingan, Masbate a
petition for the declaration of the absolute nullity of the marriage contracted on December 26, 1949
between his late brother CresencianoAblaza and Leonila Honato. 1 The case was docketed as
Special Case No. 117 entitled In Re: Petition for Nullification of Marriage Contract between
CresencianoAblaza and LeonilaHonato; Isidro Ablaza, petitioner.

The petitioner alleged that the marriage between Cresenciano and Leonila had been celebrated
without a marriage license, due to such license being issued only on January 9, 1950, thereby
rendering the marriage void ab initio for having been solemnized without a marriage license. He
insisted that his being the surviving brother of Cresenciano who had died without any issue entitled
him to one-half of the real properties acquired by Cresenciano before his death, thereby making him
a real party in interest; and that any person, himself included, could impugn the validity of the
marriage between Cresenciano and Leonila at any time, even after the death of Cresenciano, due to
the marriage being void ab initio.2

Ruling of the RTC

On October 18, 2000, 3 the RTC dismissed the petition, stating:

Considering the petition for annulment of marriage filed, the Court hereby resolved to DISMISS the
petition for the following reasons: 1) petition is filed out of time (action had long prescribed) and 2)
petitioner is not a party to the marriage (contracted between CresencianoAblaza and LeonilaNonato
on December 26, 1949 and solemnized by Rev. Fr. Eusebio B. Calolot).

SO ORDERED.

The petitioner seasonably filed a motion for reconsideration, but the RTC denied the motion for
reconsideration on November 14, 2000.

Ruling of the Court of Appeals

The petitioner appealed to the Court of Appeals (CA), assigning the lone error that:

The trial court erred in dismissing the petition for being filed out of time and that the petitioner is not
a party to the marriage.

In its decision dated January 30, 2003, 4 however, the CA affirmed the dismissal order of the RTC,
thus:

While an action to declare the nullity of a marriage considered void from the beginning does not
prescribe, the law nonetheless requires that the same action must be filed by the proper party, which
in this case should be filed by any of the parties to the marriage. In the instant case, the petition was
filed by Isidro Ablaza, a brother of the deceased-spouse, who is not a party to the marriage
contracted by CresencianoAblaza and LeonilaHonato. The contention of petitioner-appellant that he
is considered a real party in interest under Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as
he stands to be benefited or injured by the judgment in the suit, is simply misplaced. Actions for
annulment of marriage will not prosper if persons other than those specified in the law file the case.

Certainly, a surviving brother of the deceased spouse is not the proper party to file the subject
petition. More so that the surviving wife, who stands to be prejudiced, was not even impleaded as a
party to said case.

WHEREFORE, finding no reversible error therefrom, the Orders now on appeal are hereby
AFFIRMED. Costs against the petitioner-appellant.
SO ORDERED.5

Hence, this appeal.

Issues

The petitioner raises the following issues:

I.

WHETHER OR NOT THE DECISION OF THIS HONORABLE COURT OF APPEALS IN CA-

G.R. CV. NO. 69684 AFFIRMING THE ORDER OF DISMISSAL OF THE REGIONAL TRIAL
COURT, BRANCH 49 AT CATAINGAN, MASBATE IN SPECIAL PROCEEDING NO. 117 IS
IN ACCORDANCE WITH APPLICABLE LAWS AND JURISPRUDENCE;

II.

WHETHER OR NOT THE DECISION OF THE HONORABLE COURT OF APPEALS IN CA-

G.R. CV NO. 69684 (SHOULD) BE REVERSED BASED ON EXECUTIVE ORDER NO. 209
AND EXISTING JURISPRUDENCE.

ISSUE: The issues, rephrased, boil down to whether the petitioner is a real party in interest in the
action to seek the declaration of nullity of the marriage of his deceased brother.

Ruling

The petition is meritorious.

A valid marriage is essential in order to create the relation of husband and wife and to give rise to
the mutual rights, duties, and liabilities arising out of such relation. The law prescribes the requisites
of a valid marriage. Hence, the validity of a marriage is tested according to the law in force at the
time the marriage is contracted.6 As a general rule, the nature of the marriage already celebrated
cannot be changed by a subsequent amendment of the governing law. 7 To illustrate, a marriage
between a stepbrother and a stepsister was void under the Civil Code, but is not anymore prohibited
under the Family Code; yet, the intervening effectivity of the Family Code does not affect the
void nature of a marriage between a stepbrother and a stepsister solemnized under the
regime of the Civil Code.The Civil Code marriage remains void, considering that the validity of a
marriage is governed by the law in force at the time of the marriage ceremony. 8

Before anything more, the Court has to clarify the impact to the issue posed herein of
Administrative Matter (A.M.) No. 02-11-10-SC (Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages), which took effect on March 15, 2003.

Section 2, paragraph (a), of A.M. No. 02-11-10-SC explicitly provides the limitation that a
petition for declaration of absolute nullity of void marriage may be filed solely by the husband
or wife. Such limitation demarcates a line to distinguish between marriages covered by the Family
Code and those solemnized under the regime of the Civil Code. 9 Specifically, A.M. No. 02-11-10-SC
extends only to marriages covered by the Family Code, which took effect on August 3, 1988, but,
being a procedural rule that is prospective in application, is confined only to proceedings
commenced after March 15, 2003.10
Based on Carlos v. Sandoval,11 the following actions for declaration of absolute nullity of a marriage
are excepted from the limitation, to wit:

1. Those commenced before March 15, 2003, the effectivity date of A.M. No. 02-11-10-SC;
and

2. Those filed vis-à-vis marriages celebrated during the effectivity of the Civil Code and,
those celebrated under the regime of the Family Code prior to March 15, 2003.

Considering that the marriage between Cresenciano and Leonila was contracted on December 26,
1949,the applicable law was the old Civil Code, the law in effect at the time of the celebration of
the marriage.Hence, the rule on the exclusivity of the parties to the marriage as having the right to
initiate the action for declaration of nullity of the marriage under A.M. No. 02-11-10-SC had
absolutely no application to the petitioner.

The old and new Civil Codes contain no provision on who can file a petition to declare the
nullity of a marriage, and when. Accordingly, in Niñal v. Bayadog,12 the children were allowed to
file after the death of their father a petition for the declaration of the nullity of their father’s marriage
to their stepmother contracted on December 11, 1986 due to lack of a marriage license. There, the
Court distinguished between a void marriage and a voidable one, and explained how and
when each might be impugned, thus wise:

Jurisprudence under the Civil Code states that no judicial decree is necessary in order to
establish the nullity of a marriage."A void marriage does not require a judicial decree to restore
the parties to their original rights or to make the marriage void but though no sentence of avoidance
be absolutely necessary, yet as well for the sake of good order of society as for the peace of mind of
all concerned, it is expedient that the nullity of the marriage should be ascertained and declared by
the decree of a court of competent jurisdiction.""Under ordinary circumstances, the effect of a void
marriage, so far as concerns the conferring of legal rights upon the parties, is as though no marriage
had ever taken place. And therefore, being good for no legal purpose, its invalidity can be
maintained in any proceeding in which the fact of marriage may be material, either direct or
collateral, in any civil court between any parties at any time, whether before or after the death of
either or both the husband and the wife, and upon mere proof of the facts rendering such marriage
void, it will be disregarded or treated as non-existent by the courts."It is not like a voidable
marriage which cannot be collaterally attacked except in direct proceeding instituted during
the lifetime of the parties so that on the death of either, the marriage cannot be impeached,
and is made good ab initio.But Article 40 of the Family Code expressly provides that there
must be a judicial declaration of the nullity of a previous marriage, though void, before a
party can enter into a second marriage and such absolute nullity can be based only on a final
judgment to that effect.For the same reason, the law makes either the action or defense for
the declaration of absolute nullity of marriage imprescriptible.Corollarily, if the death of either
party would extinguish the cause of action or the ground for defense, then the same cannot be
considered imprescriptible.

However, other than for purposes of remarriage, no judicial action is necessary to declare a
marriage an absolute nullity. For other purposes, such as but not limited to 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 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 connotes that such final judgment need not be
obtained only for purpose of remarriage.13

It is clarified, however, that the absence of a provision in the old and new Civil Codes cannot be
construed as giving a license to just any person to bring an action to declare the absolute nullity of a
marriage. According to Carlos v. Sandoval,14 the plaintiff must still be the party who stands to be
benefited by the suit, or the party entitled to the avails of the suit, for it is basic in procedural law
that every action must be prosecuted and defended in the name of the real party in
interest.15 Thus, only the party who can demonstrate a "proper interest" can file the
action.16 Interest within the meaning of the rule means material interest, or an interest in issue to
be affected by the decree or judgment of the case, as distinguished from mere curiosity about the
question involved or a mere incidental interest. One having no material interest to protect cannot
invoke the jurisdiction of the court as plaintiff in an action. When the plaintiff is not the real party in
interest, the case is dismissible on the ground of lack of cause of action. 17

Here, the petitioner alleged himself to be the late Cresenciano’s brother and surviving heir.
Assuming that the petitioner was as he claimed himself to be, then he has a material interest in
the estate of Cresenciano that will be adversely affected by any judgment in the suit. Indeed,a
brother like the petitioner, albeit not a compulsory heir under the laws of succession, has the right
to succeed to the estate of a deceased brother under the conditions stated in Article 1001
and Article 1003 of the Civil Code, as follows:

Article 1001. Should brothers and sisters or their children survive with the widow or widower, the
latter shall be entitled to one half of the inheritance and the brothers and sisters or their children to
the other half.

Article 1003.If there are no descendants, ascendants, illegitimate children, or a surviving spouse,
the collateral relatives shall succeed to the entire estate of the deceased in accordance with the
following articles.

Pursuant to these provisions, the presence of descendants, ascendants, or illegitimate children of

the deceased excludes collateral relatives like the petitioner from succeeding to the deceased’s
estate.18 Necessarily, therefore, the right of the petitioner to bring the action hinges upon a prior
determination of whether Cresenciano had any descendants, ascendants, or children (legitimate or
illegitimate), and of whether the petitioner was the late Cresenciano’s surviving heir. Such prior
determination must be made by the trial court, for the inquiry thereon involves questions of fact.

As can be seen, both the RTC and the CA erroneously resolved the issue presented in this
case. We reverse their error, in order that the substantial right of the petitioner, if any, may
not be prejudiced.

Nevertheless, we note that the petitioner did not implead Leonila, who, as the late Cresenciano’s
surviving wife,19 stood to be benefited or prejudiced by the nullification of her own marriage. It is
relevant to observe, moreover, that not all marriages celebrated under the old Civil Code required a
marriage license for their validity;20 hence, her participation in this action is made all the more
necessary in order to shed light on whether the marriage had been celebrated without a marriage
license and whether the marriage might have been a marriage excepted from the requirement of a
marriage license.She was truly an indispensable party who must be joined herein:

xxxunder any and all conditions, [her] presence being a sine qua non for the exercise of judicial
power.  It is precisely "when an indispensable party is not before the court [that] the action should be
1avvphi1

dismissed."The absence of an indispensable party renders all subsequent actions of the court
null and void for want of authority to act, not only as to the absent parties but even as to
those present.21

We take note, too, that the petitioner and Leonila were parties in C.A.-G.R. CV No. 91025
entitled Heirs of CresencianoAblaza, namely: Leonila G. Ablaza and Leila AblazaJasul v.
Spouses Isidro and CasildaAblaza, an action to determine who between the parties were the
legal owners of the property involved therein. Apparently,C.A.-G.R. CV No. 91025 was decided
on November 26, 2009, and the petitioner’s motion for reconsideration was denied on June 23,
2010.As a defendant in that action, the petitioner is reasonably presumed to have knowledge that
the therein plaintiffs, Leonila and Leila, were the wife and daughter, respectively, of the late
Cresenciano. As such, Leila was another indispensable party whose substantial right any judgment
in this action will definitely affect. The petitioner should likewise implead Leila.

The omission to implead Leonila and Leila was not immediately fatal to the present action, however,
considering that Section 11,22 Rule 3, Rules of Court, states that neither misjoinder nor non-joinder of
parties is a ground for the dismissal of an action. The petitioner can still amend his initiatory pleading
in order to implead her, for under the same rule, such amendment to implead an indispensable party
may be made "on motion of any party or on (the trial court’s) own initiative at any stage of the action
and on such terms as are just."

WHEREFORE, the petition for review on certiorari is granted.

We reverse and set aside the decision dated January 30, 2003 rendered by the Court of Appeals.

Special Case No. 117 entitled In Re: Petition for Nullification of Marriage Contract between
CresencianoAblaza and LeonilaHonato; Isidro Ablaza, petitioner, is reinstated, and its records are
returned to the Regional Trial Court, Branch 49, in Cataingan, Masbate, for further proceedings, with
instructions to first require the petitioner to amend his initiatory pleading in order to implead
LeonilaHonato and her daughter Leila AblazaJasul as parties-defendants; then to determine
whether the late CresencianoAblaza had any ascendants, descendants, or children (legitimate or
illegitimate) at the time of his death as well as whether the petitioner was the brother and surviving
heir of the late CresencianoAblaza entitled to succeed to the estate of said deceased; and thereafter
to proceed accordingly.

No costs of suit.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

WE CONCUR:

CONCHITA CARPIO MORALES

Associate Justice
Chairperson

ARTURO D. BRION ROBERTO A. ABAD*

Associate Justice Associate Justice
 MARTIN S. VILLARAMA, JR.
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

CONCHITA CARPIO MORALES

Associate Justice Chairperson

G.R. No. 145370             March 4, 2004

MARIETTA B. ANCHETA, petitioner,
vs.
RODOLFO S. ANCHETA, respondent.

DECISION

CALLEJO, SR., J.:

This is a petition for review on certiorari of the Resolution 1 of the Court of Appeals in CA-G.R. SP No.
59550 which dismissed the petitioner’s petition under Rule 47 of the 1997 Rules of Civil Procedure
to annul the Order2 of the Regional Trial Court of Naic, Cavite, Branch 15 in Special Proceedings No.
NC-662 nullifying the marriage of the petitioner and the respondent Rodolfo S. Ancheta, and of the
resolution of the appellate court denying the motion for reconsideration of the said resolution.

This case arose from the following facts:

After their marriage on March 5, 1959, the petitioner and the respondent resided in Muntinlupa,
Metro Manila. They had eight children during their coverture, whose names and dates of births are
as follows:

a. ANA MARIE B . ANCHETA – born October 6, 1959

b. RODOLFO B. ANCHETA, JR. – born March 7, 1961

c. VENANCIO MARIANO B. ANCHETA – born May 18, 1962

d. GERARDO B. ANCHETA – born April 8, 1963

e. KATHRINA B. ANCHETA – born October 29, 1965

f. ANTONIO B. ANCHETA – born March 6, 1967

g. NATASHA MARTINA B. ANCHETA - born August 2, 1968

h. FRITZIE YOLANDA B. ANCHETA – born November 19, 19703

On December 6, 1992, the respondent left the conjugal home and abandoned the petitioner and
their children. On January 25, 1994, petitioner Marietta Ancheta filed a petition with the Regional
Trial Court of Makati, Branch 40, against the respondent for the dissolution of their conjugal
partnership and judicial separation of property with a plea for support and support pendente lite. The
case was docketed as Sp. Proc. No. M-3735. At that time, the petitioner was renting a house at No.
72 CRM Avenue cor. CRM Corazon, BF Homes, Almanza, Las Piñas, Metro Manila. 4

On April 20, 1994, the parties executed a Compromise Agreement 5 where some of the conjugal
properties were adjudicated to the petitioner and her eight children, including the following:

b. A parcel of land (adjoining the two lots covered by TCT Nos. 120082 and TCT No. 120083-Cavite)
located at Bancal, Carmona, Cavite, registered in the name of the family Ancheta. Biofood
Corporation under TCT No. 310882, together with the resort MuntingParaiso, Training Center, four-
storey building, pavilion, swimming pool and all improvements. All of the shares of stocks of Ancheta
Biofoods Corporation were distributed one-third (1/3) to the petitioner and the eight children one-
twelfth (1/12) each.6

The court rendered judgment based on the said compromise agreement. Conformably thereto, the
respondent vacated, on June 1, 1994, the resort MuntingParaiso and all the buildings and
improvements thereon. The petitioner, with the knowledge of the respondent, thenceforth resided in
the said property.

In the meantime, the respondent intended to marry again. On June 5, 1995, he filed a petition with
the Regional Trial Court of Naic, Cavite, Branch 15, for the declaration of nullity of his marriage with
the petitioner on the ground of psychological incapacity. The case was docketed as Sp. Proc. No.
NC-662. Although the respondent knew that the petitioner was already residing at the resort
MuntingParaiso in Bancal, Carmona, Cavite, he, nevertheless, alleged in his petition that the
petitioner was residing at No. 72 CRM Avenue corner CRM Corazon, BF Homes, Almanza, Las
Piñas, Metro Manila, "where she may be served with summons." 7 The clerk of court issued summons
to the petitioner at the address stated in the petition. 8 The sheriff served the summons and a copy of
the petition by substituted service on June 6, 1995 on the petitioner’s son, Venancio Mariano B.
Ancheta III, at his residence in Bancal, Carmona, Cavite. 9

On June 21, 1995, Sheriff Jose R. Salvadora, Jr. submitted a Return of Service to the court stating
that the summons and a copy of the petition were served on the petitioner through her son Venancio
Mariano B. Ancheta III on June 6, 1995:

RETURN OF SERVICE

This is to certify that the summons together with the copy of the complaint and its annexes was
received by the herein defendant thru his son Venancio M.B. Ancheta [III] as evidenced by the
signature appearing on the summons. Service was made on June 6, 1995.

June 21, 1995, Naic, Cavite.

(Sgd.) JOSE R. SALVADORA, JR.

Sheriff10

The petitioner failed to file an answer to the petition. On June 22, 1995, the respondent filed an "Ex-
Parte Motion to Declare Defendant as in Default" setting it for hearing on June 27, 1995 at 8:30 a.m.
During the hearing on the said date, there was no appearance for the petitioner. The public
prosecutor appeared for the State and offered no objection to the motion of the respondent who
appeared with counsel. The trial court granted the motion and declared the petitioner in default, and
allowed the respondent to adduce evidence ex-parte. The respondent testified in his behalf and
adduced documentary evidence. On July 7, 1995, the trial court issued an Order granting the petition
and declaring the marriage of the parties void ab initio. 11 The clerk of court issued a Certificate of
Finality of the Order of the court on July 16, 1996.12

On February 14, 1998, Valentine’s Day, the respondent and Teresita H. Rodil were married in civil
rights before the municipal mayor of Indang, Cavite.13

On July 7, 2000, the petitioner filed a verified petition against the respondent with the Court of
Appeals under Rule 47 of the Rules of Court, as amended, for the annulment of the order of the RTC
of Cavite in Special Proceedings No. NC-662. The case was docketed as CA-G.R. SP No. 59550.
The petitioner alleged, inter alia, that the respondent committed gross misrepresentations by making
it appear in his petition in Sp. Proc. No. NC-662 that she was a resident of No. 72 CRM Avenue cor.
CRM Corazon, BF Homes, Almanza, Las Piñas, Metro Manila, when in truth and in fact, the
respondent knew very well that she was residing at MuntingParaiso, Bancal, Carmona, Cavite.
According to the petitioner, the respondent did so to deprive her of her right to be heard in the said
case, and ultimately secure a favorable judgment without any opposition thereto. The petitioner also
alleged that the respondent caused the service of the petition and summons on her by substituted
service through her married son, Venancio Mariano B. Ancheta III, a resident of Bancal, Carmona,
Cavite, where the respondent was a resident. Furthermore, Venancio M.B. Ancheta III failed to
deliver to her the copy of the petition and summons. Thus, according to the petitioner, the order of
the trial court in favor of the respondent was null and void (1) for lack of jurisdiction over her person;
and (2) due to the extrinsic fraud perpetrated by the respondent. She further contended that there
was no factual basis for the trial court’s finding that she was suffering from psychological incapacity.
Finally, the petitioner averred that she learned of the Order of the RTC only on January 11, 2000.
Appended to the petition, inter alia, were the affidavits of the petitioner and of Venancio M.B.
Ancheta III.

The petitioner prayed that, after due proceedings, judgment be rendered in her favor, thus:

WHEREFORE, petitioner respectfully prays this Honorable Court to render Judgment granting the
Petition.

1. Declaring null and void the Order dated June 7, 1995 (of the Regional Trial Court, Branch
14, Naic, Cavite).

2. Ordering respondent to pay petitioner

a. ₱1,000,000.00 as moral damages;

b. ₱500,000.00 as exemplary damages;

c. ₱200,000.00 as attorney’s fees plus P7,500.00 per diem for every hearing;

d. ₱100,000.00 as litigation expenses;

e. Costs of suit.14

On July 13, 2000, the CA issued a Resolution dismissing the petition on the following ground:
We cannot give due course to the present petition in default or in the absence of any clear and
specific averment by petitioner that the ordinary remedies of new trial, appeal, petition for relief or
other appropriate remedies are no longer available through no fault of petitioner. Neither is there any
averment or allegation that the present petition is based only on the grounds of extrinsic fraud and
lack of jurisdiction. Nor yet that, on the assumption that extrinsic fraud can be a valid ground
therefor, that it was not availed of, or could not have been availed of, in a motion for new trial, or
petition for relief.15

The petitioner filed a motion for the reconsideration of the said resolution, appending thereto an
amended petition in which she alleged, inter alia, that:

4. This petition is based purely on the grounds of extrinsic fraud and lack of jurisdiction.

5. This petition has not prescribed; it was filed within the four-year period after discovery of
the extrinsic fraud.

6. The ground of extrinsic fraud has not been availed of, or could not have been availed of in
a motion for new trial or petition for relief.

7. The ground of lack of jurisdiction is not barred by laches and/or estoppel.

8. The ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies
were no longer available through no fault of petitioner; neither has she ever availed of the
said remedies. This petition is the only available remedy to her. 16

The petitioner also alleged therein that the order of the trial court nullifying her and the respondent’s
marriage was null and void for the court a quo’s failure to order the public prosecutor to conduct an
investigation on whether there was collusion between the parties, and to order the Solicitor General
to appear for the State.

On September 27, 2000, the CA issued a Resolution denying the said motion.

ISSUES:

The petitioner filed a petition for review on certiorari with this Court alleging that the CA erred as
follows:

1. In failing to take into consideration the kind of Order which was sought to be annulled.

2. In finding that the Petition was procedurally flawed.

3. In not finding that the Petition substantially complied with the requirements of the Rules of
Court.

4. In failing to comply with Section 5, Rule 47, Rules of Court.

5. In not even considering/resolving Petitioner’s Motion to Admit the Amended Petition; and
in not admitting the Amended Petition.

6. In failing to apply the Rules of Procedure with liberality. 17

The petition is meritorious.

An original action in the Court of Appeals under Rule 47 of the Rules of Court, as amended, to annul
a judgment or final order or resolution in civil actions of the RTC may be based on two grounds: (a)
extrinsic fraud; or (b) lack of jurisdiction. If based on extrinsic fraud, the remedy is subject to a
condition precedent, namely, the ordinary remedies of new trial, appeal, petition for relief or other
appropriate remedies are no longer available through no fault of the petitioner. 18 The petitioner must
allege in the petition that the ordinary remedies of new trial, appeal, petition for relief from judgment,
under Rule 38 of the Rules of Court are no longer available through no fault of hers; otherwise, the
petition will be dismissed. If the petitioner fails to avail of the remedies of new trial, appeal or relief
from judgment through her own fault or negligence before filing her petition with the Court of
Appeals, she cannot resort to the remedy under Rule 47 of the Rules; otherwise, she would benefit
from her inaction or negligence. 19

It is not enough to allege in the petition that the said remedies were no longer available
through no fault of her own. The petitioner must also explain and justify her failure to avail of
such remedies. The safeguard was incorporated in the rule precisely to avoid abuse of the
remedy.20 Access to the courts is guaranteed. But there must be limits thereto. Once a
litigant’s rights have been adjudicated in a valid final judgment of a competent court, he
should not be granted an unbridled license to sue anew. The prevailing party should not be
vexed by subsequent suits.21

In this case, the petitioner failed to allege in her petition in the CA that the ordinary remedies of new
trial, appeal, and petition for relief, were no longer available through no fault of her own. She merely
alleged therein that she received the assailed order of the trial court on January 11, 2000. The
petitioner’s amended petition did not cure the fatal defect in her original petition, because although
she admitted therein that she did not avail of the remedies of new trial, appeal or petition for relief
from judgment, she did not explain why she failed to do so.

We, however, rule that the Court of Appeals erred in dismissing the original petition and
denying admission of the amended petition. This is so because apparently, the Court of Appeals
failed to take note from the material allegations of the petition, that the petition was based not
only on extrinsic fraud but also on lack of jurisdiction over the person of the petitioner, on her
claim that the summons and the copy of the complaint in Sp. Proc. No. NC-662 were not served on
her.While the original petition and amended petition did not state a cause of action for the
nullification of the assailed order on the ground of extrinsic fraud, we rule, however,that it states a
sufficient cause of action for the nullification of the assailed order on the ground of lack of jurisdiction
of the RTC over the person of the petitioner, notwithstanding the absence of any allegation therein
that the ordinary remedy of new trial or reconsideration, or appeal are no longer available through no
fault of the petitioner.

In a case where a petition for the annulment of a judgment or final order of the RTC filed under Rule
47 of the Rules of Court is grounded on lack of jurisdiction over the person of the
defendant/respondent or over the nature or subject of the action, the petitioner need not allege in
the petition that the ordinary remedy of new trial or reconsideration of the final order or
judgment or appeal therefrom are no longer available through no fault of her own. This is so
because a judgment rendered or final order issued by the RTC without jurisdiction is null and
void and may be assailed any time either collaterally or in a direct action or by resisting such
judgment or final order in any action or proceeding whenever it is invoked,22 unless barred by
laches.23
In this case, the original petition and the amended petition in the Court of Appeals, in light of the
material averments therein, were based not only on extrinsic fraud, but also on lack of jurisdiction of
the trial court over the person of the petitioner because of the failure of the sheriff to serve on her the
summons and a copy of the complaint. She claimed that the summons and complaint were
served on her son, Venancio Mariano B. Ancheta III, who, however, failed to give her the said
summons and complaint.

Even a cursory reading of the material averments of the original petition and its annexes will
show that it is, prima facie meritorious; hence, it should have been given due course by the
Court of Appeals.

In Paramount Insurance Corporation v. Japzon,24 we held that jurisdiction is acquired by a trial court
over the person of the defendant either by his voluntary appearance in court and his submission to
its authority or by service of summons. The service of summons and the complaint on the defendant
is to inform him that a case has been filed against him and, thus, enable him to defend himself. He
is, thus, put on guard as to the demands of the plaintiff or the petitioner. Without such service in the
absence of a valid waiver renders the judgment of the court null and void. 25 Jurisdiction cannot be
acquired by the court on the person of the defendant even if he knows of the case against him
unless he is validly served with summons.26

Summons and complaint may be served on the defendant either by handing a copy thereof to him in
person, or, if he refuses to receive and sign for it, by tendering it to her. 27 However, if there is
impossibility of prompt service of the summons personally on the defendant despite diligent efforts to
find him, service of the summons may be effected by substituted service as provided in Section 7,
Rule 14 of the said Rules:

SEC. 7. Substituted service.— If, for justifiable causes, the defendant cannot be served within a
reasonable time as provided in the preceding section, service may be effected (a) by leaving
copies of the summons at the defendant’s residence with some person of suitable age and
discretion then residing therein, or (b) by leaving the copies of defendant’s office or regular
place of business with some competent person in charge thereof.28

In Miranda v. Court of Appeals,29 we held that the modes of service should be strictly followed
in order that the court may acquire jurisdiction over the person of the defendant.Thus, it is
only when a defendant cannot be served personally within a reasonable time that substituted service
may be made by stating the efforts made to find him and personally serve on him the summons and
complaint and the fact that such effort failed.30 This statement should be made in the proof of service
to be accomplished and filed in court by the sheriff. This is necessary because substituted service is
a derogation of the usual method of service. It has been held that substituted service of summons is
a method extraordinary in character; hence, may be used only as prescribed and in the
circumstances categorized by statutes.31

As gleaned from the petition and the amended petition in the CA and the annexes thereof, the
summons inSp. Proc. No. NC-662 was issued on June 6, 1995.32 On the same day, the summons
was served on and received by Venancio Mariano B. Ancheta III, 33 the petitioner’s son.When the
return of summons was submitted to the court by the sheriff on June 21, 1995, no statement was
made on the impossibility of locating the defendant therein within a reasonable time,or that any effort
was made by the sheriff to locate the defendant. There was no mention therein that Venancio
Mariano Ancheta III was residing at No. 72 CRM Avenue cor. CRM Corazon, BF Homes, Almanza,
Las Piñas, where the petitioner (defendant therein) was allegedly residing.It turned out that Venancio
Mariano B. Ancheta III had been residing at Bancal, Carmona, Cavite, and that his father merely
showed him the summons and the complaint and was made to affix his signature on the face of the
summons; he was not furnished with a copy of the said summons and complaint.

4. From the time my father started staying at MuntingParaiso, Bancal, Carmona, Cavite, I
have been residing on the adjoining land consisting of two (2) lots later apportioned to my
father as his share of the conjugal partnership. Since then, I have been residing therein up to
the present.

5. On June 6, 1995, at Bancal, Carmona, Cavite (at my residence situated on my father’s

lot), my father came to see me and then asked me to sign and I did sign papers which he
(my father) and the Sheriff did not allow me to read. Apparently, these papers are for the
Summons to my mother in the case for annulment of marriage filed by my father against her.
I was not given any copy of the Summons and/or copy of the complaint/petition. 34

We, thus, rule that the Court of Appeals acted arbitrarily in dismissing the original petition of the
petitioner and the amended petition for annulment of the assailed order grounded on lack of
jurisdiction over the person of the petitioner.

The action in Rule 47 of the Rules of Court does not involve the merits of the final order of the trial
court. However, we cannot but express alarm at what transpired in the court a quo as shown by the
records. The records show that for the petitioner’s failure to file an answer to the complaint, the trial
court granted the motion of the respondent herein to declare her in default.The public prosecutor
condoned the acts of the trial court when he interposed no objection to the motion of the
respondent. The trial court forthwith received the evidence of the respondent ex-parte and rendered
judgment against the petitioner without a whimper of protest from the public prosecutor. The
actuations of the trial court and the public prosecutor are in defiance of Article 48 of the
Family Code, which reads:

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.

In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of
facts or confession of judgment.35

The trial court and the public prosecutor also ignored Rule 18, Section 6 of the 1985 Rules of
Court (now Rule 9, Section 3[e] of the 1997 Rules of Civil Procedure) which provides:

Sec. 6. No defaults in actions for annulment 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 exits, and if there
is no collusion, to intervene for the State in order to see to it that the evidence submitted is not
fabricated.36

In the case of Republic v. Court of Appeals,37 this Court laid down the guidelines in the
interpretation and application of Art. 48 of the Family Code, one of which concerns the role of
the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the
State:
(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, briefly stating therein his reasons for his agreement
or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting
attorney, shall submit to the court such certification within fifteen (15) days from the date the case is
deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent
function of the defensorvinculi contemplated under Canon 1095. 38

This Court in the case of Malcampo-Sin v. Sin39 reiterated its pronouncement in Republic v. Court of
Appeals,40 regarding the role of the prosecuting attorney or fiscal and the Solicitor General to
appear as counsel for the State.41 The trial court, abetted by the ineptitude, if not sheer
negligence of the public prosecutor, waylaid the Rules of Court and the Family Code, as well
as the rulings of this Court.

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.42

A grant of annulment of marriage or legal separation by default is fraught with the danger of
collusion. 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. 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.

Our constitution is committed to the policy of strengthening the family as a basic social institution.
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; hence, their
preservation is not the concern of the family members alone. 43 Whether or not a marriage should
continue to exist or a family should stay together must not depend on the whims and caprices of only
one party, who claims that the other suffers psychological imbalance, incapacitating such party to
fulfill his or her marital duties and obligations.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Resolutions of the Court of
Appeals dated July 13, 2000 and September 27, 2000 in CA-G.R. SP No. 59550 are hereby SET
ASIDE and REVERSED. Let the records of CA-G.R. SP No. 59550 be remanded to the Court of
Appeals for further proceedings conformably with the Decision of this Court and Rule 47 of the Rules
of Court, as amended.

SO ORDERED.

Quisumbing, (Acting Chairman), Austria-Martinez, and Tinga, JJ., concur.

Puno, J., (Chairman), on leave.
G.R. No. 188289               August 20, 2014

DAVID A. NOVERAS, Petitioner,
vs.
LETICIA T. NOVERAS, Respondent.

DECISION

PEREZ, J.:

Before the Court is a petition for review assailing the 9 May 2008 Decision  of the Court of Appeals in
1

CA-G.R .. CV No. 88686, which affirmed in part the 8 December 2006 Decision  of the Regional Trial
2

Court (RTC) of Baler, Aurora, Branch 96.

The factual antecedents are as follow:

David A. Noveras (David) and Leticia T. Noveras (Leticia) were married on 3 December 1988 in
Quezon City, Philippines. They resided in California, United States of America (USA) where they
eventually acquired American citizenship. They then begot two children, namely: Jerome T.

Noveras, who was born on 4 November 1990 and JenaT. Noveras, born on 2 May 1993. David was
engaged in courier service business while Leticia worked as a nurse in San Francisco, California.

During the marriage, they acquired the following properties in the Philippines and in the USA:

PHILIPPINES

FAIR MARKET
PROPERTY
VALUE
House and Lot with an area of 150 ₱1,693,125.00
sq. m. located at 1085 Norma
Street, Sampaloc, Manila
(Sampaloc property)
Agricultural land with an area of ₱400,000.00
20,742 sq. m. located at Laboy,
Dipaculao, Aurora
A parcel of land with an area of 2.5 ₱490,000.00
hectares located at Maria Aurora,
Aurora
3
A parcel of land with an area of 175 ₱175,000.00
sq.m. located at Sabang Baler,
Aurora
3-has. coconut plantation in San ₱750,000.00
Joaquin Maria Aurora, Aurora

USA

FAIR MARKET
PROPERTY
VALUE
 House and Lot at 1155 Hanover
Street, Daly City, California
$550,000.00
(unpaid debt of
$285,000.00)
Furniture and furnishings $3,000

Jewelries (ring and watch) $9,000

2000 Nissan Frontier 4x4 pickup $13,770.00

truck
Bank of America Checking Account $8,000

Bank of America Cash Deposit

Life Insurance (Cash Value) $100,000.00

4
Retirement, pension, profit-sharing, $56,228.00
annuities

The Sampaloc property used to beowned by David’s parents. The parties herein secured a loan from
a bank and mortgaged the property. When said property was about to be foreclosed, the couple paid
a total of ₱1.5 Million for the redemption of the same.

Due to business reverses, David left the USA and returned to the Philippines in 2001. In December
2002,Leticia executed a Special Power of Attorney (SPA) authorizing David to sell the Sampaloc
property for ₱2.2 Million. According to Leticia, sometime in September 2003, David abandoned his
family and lived with Estrellita Martinez in Aurora province. Leticia claimed that David agreed toand
executed a Joint Affidavit with Leticia in the presence of David’s father, Atty. Isaias Noveras, on 3
December 2003 stating that: 1) the ₱1.1Million proceeds from the sale of the Sampaloc property
shall be paid to and collected by Leticia; 2) that David shall return and pay to Leticia ₱750,000.00,
which is equivalent to half of the amount of the redemption price of the Sampaloc property; and 3)
that David shall renounce and forfeit all his rights and interest in the conjugal and real properties
situated in the Philippines.  David was able to collect ₱1,790,000.00 from the sale of the Sampaloc
5

property, leaving an unpaid balance of ₱410,000.00.

Upon learning that David had an extra-marital affair, Leticia filed a petition for divorce with the
Superior Court of California, County of San Mateo, USA. The California court granted the divorce on
24 June 2005 and judgment was duly entered on 29 June 2005.  The California court granted to
6

Leticia the custody of her two children, as well as all the couple’s properties in the USA. 7

On 8 August 2005, Leticia filed a petition for Judicial Separation of Conjugal Property before the
RTC of Baler, Aurora. She relied on the 3 December 2003 Joint Affidavit and David’s failure to
comply with his obligation under the same. She prayed for: 1) the power to administer all conjugal
properties in the Philippines; 2) David and his partner to cease and desist from selling the subject
conjugal properties; 3) the declaration that all conjugal properties be forfeited in favor of her children;
4) David to remit half of the purchase price as share of Leticia from the sale of the Sampaloc
property; and 5) the payment of₱50,000.00 and ₱100,000.00 litigation expenses. 8
In his Answer, David stated that a judgment for the dissolution of their marriage was entered on 29
June 2005 by the Superior Court of California, County of San Mateo. He demanded that the conjugal
partnership properties, which also include the USA properties, be liquidated and that all expenses of
liquidation, including attorney’s fees of both parties be charged against the conjugal partnership. 9

The RTC of Baler, Aurora simplified the issues as follow:

1. Whether or not respondent David A. Noveras committed acts of abandonment and marital
infidelity which can result intothe forfeiture of the parties’ properties in favor of the petitioner
and their two (2) children.

2. Whether or not the Court has jurisdiction over the properties in California, U.S.A. and the
same can be included in the judicial separation prayed for.

3. Whether or not the "Joint Affidavit" x xx executed by petitioner Leticia T. Noveras and
respondent David A. Noveras will amount to a waiver or forfeiture of the latter’s property
rights over their conjugal properties.

4. Whether or not Leticia T. Noveras isentitled to reimbursement of onehalf of the ₱2.2

[M]illion sales proceeds of their property in Sampaloc, Manila and one-half of the ₱1.5
[M]illion used to redeem the property of Atty. Isaias Noveras, including interests and charges.

5. How the absolute community properties should be distributed.

6. Whether or not the attorney’s feesand litigation expenses of the parties were chargeable
against their conjugal properties.

Corollary to the aboveis the issue of:

Whether or not the two common children of the parties are entitled to support and presumptive
legitimes.
10

On 8 December 2006, the RTC rendered judgment as follows:

1. The absolute community of property of the parties is hereby declared DISSOLVED;

2. The net assets of the absolute community of property ofthe parties in the Philippines are
hereby ordered to be awarded to respondent David A. Noveras only, with the properties in
the United States of America remaining in the sole ownership of petitioner Leticia Noveras
a.k.a. Leticia Tacbiana pursuant to the divorce decree issuedby the Superior Court of
California, County of San Mateo, United States of America, dissolving the marriage of the
parties as of June 24, 2005. The titles presently covering said properties shall be cancelled
and new titles be issued in the name of the party to whom said properties are awarded;

3. One-half of the properties awarded to respondent David A. Noveras in the preceding

paragraph are hereby given to Jerome and Jena, his two minor children with petitioner
LeticiaNoveras a.k.a. Leticia Tacbiana as their presumptive legitimes and said legitimes must
be annotated on the titles covering the said properties.Their share in the income from these
properties shall be remitted to them annually by the respondent within the first half of
January of each year, starting January 2008;
 4. One-half of the properties in the United States of America awarded to petitioner Leticia
Noveras a.k.a. Leticia Tacbiana in paragraph 2 are hereby given to Jerome and Jena, her
two minor children with respondent David A. Noveras as their presumptive legitimes and said
legitimes must be annotated on the titles/documents covering the said properties. Their
share in the income from these properties, if any, shall be remitted to them annually by the
petitioner within the first half of January of each year, starting January 2008;

5. For the support of their two (2) minor children, Jerome and Jena, respondent David A.
Noveras shall give them US$100.00 as monthly allowance in addition to their income from
their presumptive legitimes, while petitioner Leticia Tacbiana shall take care of their food,
clothing, education and other needs while they are in her custody in the USA. The monthly
allowance due from the respondent shall be increased in the future as the needs of the
children require and his financial capacity can afford;

6. Of the unpaid amount of ₱410,000.00 on the purchase price of the Sampaloc property, the
Paringit Spouses are hereby ordered to pay ₱5,000.00 to respondent David A. Noveras and
₱405,000.00 to the two children. The share of the respondent may be paid to him directly but
the share of the two children shall be deposited with a local bank in Baler, Aurora, in a joint
account tobe taken out in their names, withdrawal from which shall only be made by them or
by their representative duly authorized with a Special Power of Attorney. Such
payment/deposit shall be made withinthe period of thirty (30) days after receipt of a copy of
this Decision, with the passbook of the joint account to be submitted to the custody of the
Clerk of Court of this Court within the same period. Said passbook can be withdrawn from
the Clerk of Court only by the children or their attorney-in-fact; and

7. The litigation expenses and attorney’s fees incurred by the parties shall be shouldered by
them individually. 11

The trial court recognized that since the parties are US citizens, the laws that cover their legal and
personalstatus are those of the USA. With respect to their marriage, the parties are divorced by
virtue of the decree of dissolution of their marriage issued by the Superior Court of California, County
of San Mateo on 24June 2005. Under their law, the parties’ marriage had already been
dissolved.Thus, the trial court considered the petition filed by Leticia as one for liquidation of the
absolute community of property regime with the determination of the legitimes, support and custody
of the children, instead of an action for judicial separation of conjugal property.

With respect to their property relations, the trial court first classified their property regime as absolute
community of property because they did not execute any marriage settlement before the
solemnization of their marriage pursuant to Article 75 of the Family Code. Then, the trial court ruled
that in accordance with the doctrine of processual presumption, Philippine law should apply because
the court cannot take judicial notice of the US law since the parties did not submit any proof of their
national law.The trial court held that as the instant petition does not fall under the provisions of the
law for the grant of judicial separation of properties, the absolute community properties cannot
beforfeited in favor of Leticia and her children.Moreover, the trial court observed that Leticia failed to
prove abandonment and infidelity with preponderant evidence.

The trial court however ruled that Leticia is not entitled to the reimbursements she is praying for
considering that she already acquired all of the properties in the USA. Relying still on the principle of
equity, the Court also adjudicated the Philippine properties to David, subject to the payment of the
children’s presumptive legitimes.The trial court held that under Article 89 of the Family Code, the
waiver or renunciation made by David of his property rights in the Joint Affidavit is void.
On appeal, the Court of Appeals modified the trial court’s Decision by directing the equal division of
the Philippine properties between the spouses. Moreover with respect to the common children’s
presumptive legitime, the appellate court ordered both spouses to each pay their children the
amount of ₱520,000.00, thus:

WHEREFORE, the instant appeal is PARTLY GRANTED. Numbers 2, 4 and 6 of the

assailedDecision dated December 8, 2006 of Branch 96, RTC of Baler, Aurora Province, in Civil
Case No. 828 are hereby MODIFIED to read as follows:

2. The net assets of the absolute community of property of the parties in the Philippines are
hereby divided equally between petitioner Leticia Noveras a.k.a. Leticia Tacbiana (sic) and
respondent David A. Noveras;

x xx

4. One-half of the properties awarded to petitioner Leticia Tacbiana (sic) in paragraph 2 shall
pertain to her minor children, Jerome and Jena, as their presumptive legitimes which shall be
annotated on the titles/documents covering the said properties. Their share in the income
therefrom, if any, shall be remitted to them by petitioner annually within the first half of
January, starting 2008;

x xx

6. Respondent David A. Noveras and petitioner Leticia Tacbiana (sic) are each ordered to
pay the amount of₱520,000.00 to their two children, Jerome and Jena, as their presumptive
legitimes from the sale of the Sampaloc property inclusive of the receivables therefrom,
which shall be deposited to a local bank of Baler, Aurora, under a joint account in the latter’s
names. The payment/deposit shall be made within a period of thirty (30) days from receipt
ofa copy of this Decision and the corresponding passbook entrusted to the custody ofthe
Clerk of Court a quowithin the same period, withdrawable only by the children or their
attorney-in-fact.

A number 8 is hereby added, which shall read as follows:

8. Respondent David A. Noveras is hereby ordered to pay petitioner Leticia Tacbiana (sic)
the amount of ₱1,040,000.00 representing her share in the proceeds from the sale of the
Sampaloc property.

The last paragraph shall read as follows:

Send a copy of this Decision to the local civil registry of Baler, Aurora; the local civil registry of
Quezon City; the Civil RegistrarGeneral, National Statistics Office, Vibal Building, Times Street
corner EDSA, Quezon City; the Office of the Registry of Deeds for the Province of Aurora; and to the
children, Jerome Noveras and Jena Noveras.

The rest of the Decision is AFFIRMED. 12

In the present petition, David insists that the Court of Appeals should have recognized the California
Judgment which awarded the Philippine properties to him because said judgment was part of the
pleading presented and offered in evidence before the trial court. David argues that allowing Leticia
to share in the Philippine properties is tantamount to unjust enrichment in favor of Leticia considering
that the latter was already granted all US properties by the California court.

In summary and review, the basic facts are: David and Leticia are US citizens who own properties in
the USA and in the Philippines. Leticia obtained a decree of divorce from the Superior Court of
California in June 2005 wherein the court awarded all the properties in the USA to Leticia. With
respect to their properties in the Philippines, Leticiafiled a petition for judicial separation ofconjugal
properties.

At the outset, the trial court erred in recognizing the divorce decree which severed the bond
of marriage between the parties. In Corpuz v. Sto. Tomas,  we stated that:
13

The starting point in any recognition of a foreign divorce judgment is the acknowledgment that our
courts do not take judicial notice of foreign judgments and laws.Justice Herrera explained that, as
a rule, "no sovereign is bound to give effect within its dominion to a judgment rendered by a
tribunal of another country."This means that the foreign judgment and its authenticity must
beproven as facts under our rules on evidence, together with the alien’s applicable national law to
show the effect of the judgment on the alien himself or herself.The recognition may be made in an
action instituted specifically for the purpose or in another action where a party invokes the foreign
decree as an integral aspect of his claim or defense. 14

The requirements of presenting the foreign divorce decree and the national law of the
foreigner must comply with our Rules of Evidence. Specifically, for Philippine courts to recognize
a foreign judgment relating to the status of a marriage, a copy of the foreign judgment may be
admitted in evidence and proven as a fact under Rule 132, Sections 24 and 25, in relation to
Rule 39, Section 48(b) of the Rules of Court. 15

Under Section 24 of Rule 132, the record of public documents of a sovereign authority or
tribunal may be proved by: (1) an official publication thereof or (2) a copy attested by the officer
having the legal custody thereof.Such official publication or copy must beaccompanied, if the
record is not kept in the Philippines, with a certificate that the attesting officer has the legal
custody thereof.The certificate may be issued by any of the authorized Philippine embassy or
consular officials stationed in the foreign country in which the record is kept, and authenticated by
the seal of his office.The attestation must state, in substance, that the copy is a correct copy of the
original, or a specific part thereof, asthe case may be, and must be under the official seal of the
attesting officer.

Section 25 of the same Rule states that whenever a copy of a document or record is attested
for the purpose of evidence, the attestation must state, in substance, that the copy is a
correct copy of the original, or a specific part thereof, as the case may be. The attestation must
be under the official seal of the attesting officer, if there be any, or if hebe the clerk of a court having
a seal, under the seal of such court.

Based on the records, only the divorce decree was presented in evidence. The required certificates
to prove its authenticity, as well as the pertinent California law on divorce were not presented.

It may be noted that in Bayot v. Court of Appeals,  we relaxed the requirement on certification
16

where we held that "[petitioner therein] was clearly an American citizenwhen she secured the divorce
and that divorce is recognized and allowed in any of the States of the Union, the presentation of a
copy of foreign divorce decree duly authenticatedby the foreign court issuing said decree is, as here,
sufficient."In this case however, it appears that there is no seal from the office where the
divorce decree was obtained.
Even if we apply the doctrine of processual presumption  as the lower courts did with respect
17

to the property regime of the parties, the recognition of divorce is entirely a different matter because,
to begin with, divorce is not recognized between Filipino citizens in the Philippines.Absent a valid
recognition of the divorce decree, it follows that the parties are still legally married in the
Philippines. The trial court thus erred in proceeding directly to liquidation.

As a general rule, any modification in the marriage settlements must be made before the
celebration of marriage.An exception to this rule is allowed provided that the modification
isjudicially approved and refers only to the instances provided in Articles 66,67, 128, 135 and 136 of
the Family Code. 18

Leticia anchored the filing of the instant petition for judicial separation of property on paragraphs 4
and 6 of Article 135 of the Family Code, to wit:

Art. 135. Any of the following shall be considered sufficient cause for judicial separation of
property:

(1) That the spouse of the petitioner has been sentenced to a penalty which carries with it
civil interdiction;

(2) That the spouse of the petitioner has been judicially declared an absentee;

(3) That loss of parental authority ofthe spouse of petitioner has been decreed by the court;

(4) That the spouse of the petitioner has abandoned the latter or failed to comply with his or
her obligations to the family as provided for in Article 101;

(5) That the spouse granted the power of administration in the marriage settlements has
abused that power; and

(6) That at the time of the petition, the spouses have been separated in fact for at least one
year and reconciliation is highly improbable.

In the cases provided for in Numbers (1), (2), and (3), the presentation of the final judgment
against the guiltyor absent spouse shall be enough basis for the grant of the decree
ofjudicial separation of property. (Emphasis supplied).

The trial court had categorically ruled that there was no abandonment in this case to necessitate
judicial separation of properties under paragraph 4 of Article 135 of the Family Code. The trial court
ratiocinated:

Moreover, abandonment, under Article 101 of the Family Code quoted above, must be for a valid
cause and the spouse is deemed to have abandoned the other when he/she has left the conjugal
dwelling without intention of returning. The intention of not returning is prima facie presumed if the
allegedly [sic] abandoning spouse failed to give any information as to his or her whereabouts within
the period of three months from such abandonment.

In the instant case, the petitioner knows that the respondent has returned to and stayed at his
hometown in Maria Aurora, Philippines, as she even went several times to visit him there after the
alleged abandonment. Also, the respondent has been going back to the USA to visit her and their
children until the relations between them worsened. The last visit of said respondent was in
October 2004 when he and the petitioner discussed the filing by the latter of a petition for
dissolution of marriage with the California court. Such turn for the worse of their relationship and
the filing of the saidpetition can also be considered as valid causes for the respondent to stay in
the Philippines. 19

Separation in fact for one year as a ground to grant a judicial separation of property was not tackled
in the trial court’s decision because, the trial court erroneously treated the petition as liquidation of
the absolute community of properties.

The records of this case are replete with evidence that Leticia and David had indeed
separated for more than a year and that reconciliation is highly improbable.First, while actual
abandonment had not been proven, it is undisputed that the spouses had been living separately
since 2003 when David decided to go back to the Philippines to set up his own business. Second,
Leticia heard from her friends that David has been cohabiting with Estrellita Martinez, who
represented herself as EstrellitaNoveras.EdithaApolonio, who worked in the hospital where David
was once confined, testified that she saw the name of Estrellita listed as the wife of David in the
Consent for Operation form.  Third and more significantly, they had filed for divorce and it was
20

granted by the California court in June 2005.

Having established that Leticia and David had actually separated for at least one year, the petition
for judicial separation of absolute community of property should be granted.

The grant of the judicial separation of the absolute community property automatically dissolves the
absolute community regime, as stated in the 4th paragraph of Article 99 ofthe Family Code, thus:

Art. 99. The absolute community terminates:

(1) Upon the death of either spouse;

(2) When there is a decree of legal separation;

(3) When the marriage is annulled or declared void; or

(4) In case of judicial separation of property during the marriage under Articles 134 to 138.
(Emphasis supplied).

Under Article 102of the same Code, liquidation follows the dissolution of the absolute
community regime and the following procedure should apply:

Art. 102. Upon dissolution of the absolute community regime, the following procedure shall apply:

(1) An inventory shall be prepared, listing separately all the properties of the absolute
community and the exclusive properties of each spouse.

(2) The debts and obligations of the absolute community shall be paid out of its assets. In
case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid
balance with their separate properties in accordance with the provisions of the second
paragraph of Article 94.

(3) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered
to each of them.
 (4) The net remainder of the properties of the absolute community shall constitute its net
assets, which shall be divided equally between husband and wife, unless a different
proportion or division was agreed upon in the marriage settlements, or unless there has
been a voluntary waiver of such share provided in this Code. For purposes of computing the
net profits subject to forfeiture in accordance with Articles 43, No. (2) and 63, No. (2),the said
profits shall be the increase in value between the market value of the community property at
the time of the celebration of the marriage and the market value at the time of its dissolution.

(5) The presumptive legitimes of the common children shall be delivered upon partition, in
accordance with Article 51.

(6) Unless otherwise agreed upon by the parties, in the partition of the properties, the
conjugal dwelling and the lot on which it is situated shall be adjudicated tothe spouse with
whom the majority of the common children choose to remain. Children below the age of
seven years are deemed to have chosen the mother, unless the court has decided
otherwise. In case there is no such majority, the court shall decide, taking into consideration
the best interests of said children. At the risk of being repetitious, we will not remand the
case to the trial court. Instead, we shall adopt the modifications made by the Court of
Appeals on the trial court’s Decision with respect to liquidation.

We agree with the appellate court that the Philippine courts did not acquire jurisdiction over the
California properties of David and Leticia. Indeed, Article 16 of the Civil Code clearly states that real
property as well as personal property is subject to the law of the country where it is situated. Thus,
liquidation shall only be limited to the Philippine properties.

We affirm the modification madeby the Court of Appeals with respect to the share of the spouses in
the absolutecommunity properties in the Philippines, as well as the payment of their children’s
presumptive legitimes, which the appellate court explained in this wise:

Leticia and David shall likewise have an equal share in the proceeds of the Sampaloc
property.  While both claimed to have contributed to the redemption of the Noveras property, absent
1âwphi1

a clear showing where their contributions came from, the same is presumed to have come from the
community property. Thus, Leticia is not entitled to reimbursement of half of the redemption money.

David's allegation that he used part of the proceeds from the sale of the Sampaloc property for the
benefit of the absolute community cannot be given full credence. Only the amount of ₱120,000.00
incurred in going to and from the U.S.A. may be charged thereto. Election expenses in the amount of
₱300,000.00 when he ran as municipal councilor cannot be allowed in the absence of receipts or at
least the Statement of Contributions and Expenditures required under Section 14 of Republic Act
No. 7166 duly received by the Commission on Elections. Likewise, expenses incurred to settle the
criminal case of his personal driver is not deductible as the same had not benefited the family. In
sum, Leticia and David shall share equally in the proceeds of the sale net of the amount of
₱120,000.00 or in the respective amounts of ₱1,040,000.00.

x xxx

Under the first paragraph of Article 888 of the Civil Code, "(t)helegitime of legitimate children and
descendants consists of one-half or the hereditary estate of the father and of the mother." The
children are therefore entitled to half of the share of each spouse in the net assets of the absolute
community, which shall be annotated on the titles/documents covering the same, as well as to their
respective shares in the net proceeds from the sale of the Sampaloc property including the
receivables from Sps. Paringit in the amount of ₱410,000.00. Consequently, David and Leticia
should each pay them the amount of ₱520,000.00 as their presumptive legitimes therefrom. 21

WHEREFORE, the petition is DENIED. The assailed Decision of the Court of Appeals in CA G.R.
CV No. 88686 is AFFIRMED.

SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO*

Chief Justice

ANTONIO T. CARPIO
PRESBITERO J. VELASCO, JR.**
Associate Justice
Associate Justice
Chairperson

MARIANO C. DEL CASTILLO

Associate Justice