ANTONIO GELUZ, petitioner, G.R. No.
L-16439 July 20, 1961 The prevailing American jurisprudence is to the same effect; and it is generally held that recovery can not
vs.
THE HON. COURT OF APPEALS and OSCAR LAZO, respondents.
Mariano H. de Joya for petitioner.
A.P. Salvador for respondents.
REYES, J.B.L., J.:
This petition for certiorari brings up for review question whether the husband of a woman, who
voluntarily procured her abortion, could recover damages from physician who caused the same.
The litigation was commenced in the Court of First Instance of Manila by respondent Oscar Lazo, the of
Nita Villanueva, against petitioner Antonio Geluz, a physician. Convinced of the merits of the complaint
upon the evidence adduced, the trial court rendered judgment favor of plaintiff Lazo and against defendant
Geluz, ordering the latter to pay P3,000.00 as damages, P700.00 attorney's fees and the costs of the suit.
On appeal, Court of Appeals, in a special division of five, sustained the award by a majority vote of three
justices as against two, who rendered a separate dissenting opinion.
The facts are set forth in the majority opinion as follows:
Nita Villanueva came to know the defendant (Antonio Geluz) for the first time in 1948 — through her
aunt Paula Yambot. In 1950 she became pregnant by her present husband before they were legally
married. Desiring to conceal her pregnancy from her parent, and acting on the advice of her aunt, she had
herself aborted by the defendant. After her marriage with the plaintiff, she again became pregnant. As she
was then employed in the Commission on Elections and her pregnancy proved to be inconvenient, she had
herself aborted again by the defendant in October 1953. Less than two years later, she again became
pregnant. On February 21, 1955, accompanied by her sister Purificacion and the latter's daughter Lucida,
she again repaired to the defendant's clinic on Carriedo and P. Gomez streets in Manila, where the three
met the defendant and his wife. Nita was again aborted, of a two-month old foetus, in consideration of the
sum of fifty pesos, Philippine currency. The plaintiff was at this time in the province of Cagayan,
campaigning for his election to the provincial board; he did not know of, nor gave his consent, to the
abortion.
It is the third and last abortion that constitutes plaintiff's basis in filing this action and award of damages.
Upon application of the defendant Geluz we granted certiorari.
The Court of Appeals and the trial court predicated the award of damages in the sum of P3,000.06 upon
the provisions of the initial paragraph of Article 2206 of the Civil Code of the Philippines. This we believe
to be error, for the said article, in fixing a minimum award of P3,000.00 for the death of a person, does not
cover the case of an unborn foetus that is not endowed with personality. Under the system of our Civil
Code, "la criatura abortiva no alcanza la categoria de persona natural y en consscuencia es un ser no
nacido a la vida del Derecho" (Casso-Cervera, "Diccionario de Derecho Privado", Vol. 1, p. 49), being
incapable of having rights and obligations.
Since an action for pecuniary damages on account of personal injury or death pertains primarily to the one
injured, it is easy to see that if no action for such damages could be instituted on behalf of the unborn child
on account of the injuries it received, no such right of action could derivatively accrue to its parents or
heirs. In fact, even if a cause of action did accrue on behalf of the unborn child, the same was extinguished
by its pre-natal death, since no transmission to anyone can take place from on that lacked juridical
personality (or juridical capacity as distinguished from capacity to act). It is no answer to invoke the
provisional personality of a conceived child (conceptus pro nato habetur) under Article 40 of the Civil
Code, because that same article expressly limits such provisional personality by imposing the condition
that the child should be subsequently born alive: "provided it be born later with the condition specified in
the following article". In the present case, there is no dispute that the child was dead when separated from
its mother's womb.
had for the death of an unborn child (Stafford vs. Roadway Transit Co., 70 F. Supp. 555; Dietrich vs.
Northampton, 52 Am. Rep. 242; and numerous cases collated in the editorial note, 10 ALR, (2d) 639).
This is not to say that the parents are not entitled to collect any damages at all. But such damages must be
those inflicted directly upon them, as distinguished from the injury or violation of the rights of the
deceased, his right to life and physical integrity. Because the parents cannot expect either help, support or
services from an unborn child, they would normally be limited to moral damages for the illegal arrest of
the normal development of the spes hominis that was the foetus, i.e., on account of distress and anguish
attendant to its loss, and the disappointment of their parental expectations (Civ. Code Art. 2217), as well
as to exemplary damages, if the circumstances should warrant them (Art. 2230). But in the case before us,
both the trial court and the Court of Appeals have not found any basis for an award of moral damages,
evidently because the appellee's indifference to the previous abortions of his wife, also caused by the
appellant herein, clearly indicates that he was unconcerned with the frustration of his parental hopes and
affections. The lower court expressly found, and the majority opinion of the Court of Appeals did not
contradict it, that the appellee was aware of the second abortion; and the probabilities are that he was
likewise aware of the first. Yet despite the suspicious repetition of the event, he appeared to have taken no
steps to investigate or pinpoint the causes thereof, and secure the punishment of the responsible
practitioner. Even after learning of the third abortion, the appellee does not seem to have taken interest in
the administrative and criminal cases against the appellant. His only concern appears to have been directed
at obtaining from the doctor a large money payment, since he sued for P50,000.00 damages and P3,000.00
attorney's fees, an "indemnity" claim that, under the circumstances of record, was clearly exaggerated.
The dissenting Justices of the Court of Appeals have aptly remarked that:
It seems to us that the normal reaction of a husband who righteously feels outraged by the abortion which
his wife has deliberately sought at the hands of a physician would be highminded rather than mercenary;
and that his primary concern would be to see to it that the medical profession was purged of an unworthy
member rather than turn his wife's indiscretion to personal profit, and with that idea in mind to press either
the administrative or the criminal cases he had filed, or both, instead of abandoning them in favor of a
civil action for damages of which not only he, but also his wife, would be the beneficiaries.
It is unquestionable that the appellant's act in provoking the abortion of appellee's wife, without medical
necessity to warrant it, was a criminal and morally reprehensible act, that can not be too severely
condemned; and the consent of the woman or that of her husband does not excuse it. But the immorality or
illegality of the act does not justify an award of damage that, under the circumstances on record, have no
factual or legal basis.
The decision appealed from is reversed, and the complaint ordered dismissed. Without costs.
Let a copy of this decision be furnished to the Department of Justice and the Board of Medical Examiners
for their information and such investigation and action against the appellee Antonio Geluz as the facts
may warrant.
Bengzon, C.J., Padilla, Labrador, Barrera, Paredes, Dizon and Natividad, JJ., concur.
Concepcion, J., took no part.
De Leon, J., took no part.
Geluz vs CA Case Digest
CITATION: 2 SCRA 801
FACTS:
Nita Villanueva, the wife of Oscar lazo, respondent, came to know Antonio Geluz, the petitioner and
physician, through her aunt Paula Yambot. Nita became pregnant some time in 1950 before she and Oscar
were legally married. As advised by her aunt and to conceal it from her parents, she decided to have it
aborted by Geluz. She had her pregnancy aborted again on October 1953 since she found it inconvenient
as she was employed at COMELEC. After two years, on February 21, 1955, she again became pregnant
and was accompanied by her sister Purificacion and the latter’s daughter Lucida at Geluz’ clinic at
Carriedo and P. Gomez Street. Oscar at this time was in the province of Cagayan campaigning for his
election to the provincial board. He doesn’t have any idea nor given his consent on the abortion.
ISSUE: Whether husband of a woman, who voluntarily procured her abortion, could recover damages
from the physician who caused the same.
HELD:
No, he cannot.  Award for death of a person does not cover unborn fetus because it is still not vested with
legal personality. According to Article 40, birth determines personality.  In this case, the fetus does not yet
possess a personality to speak of because it was aborted in uterus.  The child should be born before the
parents can seek any recovery for damages.
Action for pecuniary damages on account of personal injury or death pertains primarily to the one injured. 
There could be no action for such damages that can be instituted on behalf of the unborn child for the
injuries it received because it lacked juridical personality. Moral damages cannot also be recovered
because the wife willingly sought the abortion, and the husband did not further investigate on the causes
of the abortionThe Supreme Court believed that the minimum award fixed at P3,000 for the death of a
person does not cover cases of an unborn fetus that is not endowed with personality which trial court and
Court of Appeals predicated.
Both trial court and CA wasn’t able to find any basis for an award of moral damages evidently because
Oscar’s indifference to the previous abortions of Nita clearly indicates he was unconcerned with the
frustration of his parental affections. Instead of filing an administrative or criminal case against Geluz, he
turned his wife’s indiscretion to personal profit and filed a civil action for damages of which not only he
but, including his wife would be the beneficiaries. It shows that he’s after obtaining a large money
payment since he sued Geluz for P50,000 damages and P3,000 attorney’s fees that serves as indemnity
claim, which under the circumstances was clearly exaggerated.
RATIO:
Parents of unborn fetus cannot sue for damages on its behalf. A husband of a woman who voluntarily
procured her abortion could not recover damages from the physician who caused the same.
(1) Since an action for pecuniary damages on account of personal injury or death pertains
primarily to the injured, no such right of action could derivatively accrue to the parents or heirs
of an unborn child. In fact, even if a cause of action did accrue on behalf of the unborn child,
the same was extinguished by its pre-natal death, since no transmission to anyone can take
place from one that lacked juridical personality (or juridical capacity, as distinguished from
capacity to act). It is no answer to invoke the provisional personality of a conceived child
(conceptus pro nato habetur) under Article 40 of the Civil Cod, because that same article
expressly limits such provisional personality by imposing the condition that the child should be
subsequently born alive: "provided it be born later with the condition specified in the following
article." In the present case, there is no dispute that the child was dead when separated from its
mother's womb.
(2)
(2) This is not to say that the parents are not entitled to collect any damages at all. But such
damages must be those inflicted directly upon them, as distinguished from the injury or
violation of the rights of the deceased, his right to life and physical integrity. Because the
parents cannot expect either help, support or services from an unborn child, they would
normally be limited to moral damages for the illegal arrest of the normal development of the
spes hominis that was the fetus, i.e., on account of distress and anguish attendant to its loss,
and the disappointment of their parental expectations (Art. 2217, CC), as well as to exemplary
damages, if the circumstances should warrant them (Art. 2230, CC). But in this case, there is
no basis for an award of moral damages, evidently because the husband's indifference to the
previous abortions clearly indicates that he was unconcerned with the frustration of his parental
hopes and affection.
Art. 41. For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered
from the mother's womb. However, if the fetus had an intrauterine life of less than seven months, it is not
deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb. 
Tolentino: Separation from Mother.-- This is produced by the cutting of the umbilical cord, whether the
removal takes place naturally or by surgical operation.
Alive at Birth.-- The duration of extra-uterine life is immaterial; for acquisition of juridical personality, it
is enough that the child lives even for an instant. 
Test of Life.-- The general opinion is that independent life required for juridical personality can be shown
only by complete respiration. The cry of the child, although it is not a necessary sign of life, is evidence
that it has acquired complete respiration. Another indication of complete respiration is the floating of the
lungs when placed in water; this means that air has penetrated into the lungs by breathing.
Viability Not Required.-- Viability means that the child is capable of living, and this is determined by the
extent of the development of its organs.
Premature Birth.-- In this case, if the child does not live 24 hours completely separated from the mother's
womb, it does not acquire juridical personality. This is an absolute requirement for feotuses w/c have an
intrauterine life of less than 7 mos. (Balane quoting Manresa and JBL.)
"The aborted creature does not reach the category of a natural person and consequently is not born in the
contemplation of law." (Geluz v. CA, supra.)
This is so; even if the child is killed before the period lapses and it can be proved that it could have
survived that period if it had not been prevented by the willful act of another. On the other hand, juridical
personality is acquired even if the survival for 24 hours is caused only by medical or scientific means w/o
w/c the child would have died before the lapse of that period.
ANTONIA L. DE JESUS, ET AL., plaintiff-appellant,
vs.
CESAR SYQUIA, defendant-appellant.
STREET, J.:
This action was instituted in the Court of First Instance of Manila by Antonia Loanco de Jesus in
her own right and by her mother, Pilar Marquez, as next friend and representative of Ismael and Pacita
Loanco, infants, children of the first-named plaintiff, for the purpose of recovering from the defendant,
Cesar Syquia, the sum of thirty thousand pesos as damages resulting to the first-named plaintiff from
breach of a marriage promise, to compel the defendant to recognize Ismael and Pacita as natural children
begotten by him with Antonia, and to pay for the maintenance of the three the amount of five hundred
pesos per month, together with costs. Upon hearing the cause, after answer of the defendant, the trial court
erred a decree requiring the defendant to recognize Ismael Loanco as his natural child and to pay
maintenance for him at the rate of fifty pesos per month, with costs, dismissing the action in other
respects. From this judgment both parties appealed, the plaintiffs from so much of the decision as denied
part of the relief sought by them, and the defendant from that feature of the decision which required him to
recognize Ismael Loanco and to pay for his maintenance.
At the time with which we are here concerned, the defendant, Cesar Syquia was of the age of
twenty-three years, and an unmarried scion of the prominent family in Manila, being possessed of a
considerable property in his own right. His brother-in-law, Vicente Mendoza is the owner of a barber shop
in Tondo, where the defendant was accustomed to go for tonsorial attention. In the month of June Antonia
Loanco, a likely unmarried girl of the age of twenty years, was taken on as cashier in this barber shop.
Syquia was not long in making her acquaintance and amorous relations resulted, as a consequence of
which Antonia was gotten with child and a baby boy was born on June 17, 1931. The defendant was a
constant visitor at the home of Antonia in the early months of her pregnancy, and in February, 1931, he
wrote and placed in her hands a note directed to the padre who has expected to christen the baby. This
note was as follows:
Saturday, 1:30 p. m.
February 14, 1931
Rev. FATHER,
The baby due in June is mine and I should like for my name to be given to it.
CESAR SYQUIA
The occasion for writing this note was that the defendant was on the eve of his departure on a trip to
China and Japan; and while he was abroad on this visit he wrote several letters to Antonia showing a
paternal interest in the situation that had developed with her, and cautioning her to keep in good condition
in order that "junior" (meaning the baby to be, "Syquia, Jr.") might be strong, and promising to return to
them soon. The baby arrived at the time expected, and all necessary anticipatory preparations were made
by the defendant. To this he employed his friend Dr. Crescenciano Talavera to attend at the birth, and
made arrangements for the hospitalization of the mother in Saint Joseph's Hospital of the City of Manila,
where she was cared for during confinement.
When Antonio was able to leave the hospital, Syquia took her, with her mother and the baby, to a
house at No. 551 Camarines Street, Manila, where they lived together for about a year in regular family
style, all household expenses, including gas and electric light, being defrayed by Syquia. In course of time,
however, the defendant's ardor abated and, when Antonia began to show signs of a second pregnancy the
defendant decamped, and he is now married to another woman. A point that should here be noted is that
when the time came for christening the child, the defendant, who had charge of the arrangement for this
ceremony, caused the name Ismael Loanco to be given to him, instead of Cesar Syquia, Jr., as was at first
planned.
The first question that is presented in the case is whether the note to the padre, quoted above, in
connection with the letters written by the defendant to the mother during pregnancy, proves an
acknowledgment of paternity, within the meaning of subsection 1 of article 135 of the Civil Code. Upon
this point we have no hesitancy in holding that the acknowledgment thus shown is sufficient. It is a
universal rule of jurisprudence that a child, upon being conceived, becomes a bearer of legal rights and
capable of being dealt with as a living person. The fact that it is yet unborn is no impediment to the
acquisition of rights. The problem here presented of the recognition of unborn child is really not different
from that presented in the ordinary case of the recognition of a child already born and bearing a specific
name. Only the means and resources of identification are different. Even a bequest to a living child
requires oral evidence to connect the particular individual intended with the name used.
It is contended however, in the present case that the words of description used in the writings before
us are not legally sufficient to indemnify the child now suing as Ismael Loanco. This contention is not, in
our opinion, well founded. The words of recognition contained in the note to the padre are not capable of
two constructions. They refer to a baby then conceived which was expected to be born in June and which
would thereafter be presented for christening. The baby came, and though it was in the end given the name
of Ismael Loanco instead of Cesar Syquia, Jr., its identity as the child which the defendant intended to
acknowledge is clear. Any doubt that might arise on this point is removed by the letters Exhibit F, G, H,
and J. In these letters the defendant makes repeated reference to junior as the baby which Antonia, to
whom the letters were addressed, was then carrying in her womb, and the writer urged Antonia to eat with
good appetite in order that junior might be vigorous. In the last letter (Exhibit J) written only a few days
before the birth of the child, the defendant urged her to take good care of herself and of junior also.
It seems to us that the only legal question that can here arise as to the sufficiency of
acknowledgment is whether the acknowledgment contemplated in subsection 1 of article 135 of the Civil
Code must be made in a single document or may be made in more than one document, of indubitable
authenticity, written by the recognizing father. Upon this point we are of the opinion that the recognition
can be made out by putting together the admissions of more than one document, supplementing the
admission made in one letter by an admission or admissions made in another. In the case before us the
admission of paternity is contained in the note to the padre and the other letters suffice to connect that
admission with the child then being carried by Antonia L. de Jesus. There is no requirement in the law that
the writing shall be addressed to one, or any particular individual. It is merely required that the writing
shall be indubitable.
The second question that presents itself in this case is whether the trial court erred in holding that
Ismael Loanco had been in the uninterrupted possession of the status of a natural child, justified by the
conduct of the father himself, and that as a consequence, the defendant in this case should be compelled to
acknowledge the said Ismael Loanco, under No. 2 of article 135 of the Civil Code. The facts already stated
are sufficient, in our opinion, to justify the conclusion of the trial court on this point, and we may add here
that our conclusion upon the first branch of the case that the defendant had acknowledged this child in
writings above referred to must be taken in connection with the facts found by the court upon the second
point. It is undeniable that from the birth of this child the defendant supplied a home for it and the mother,
in which they lived together with the defendant. This situation continued for about a year, and until
Antonia became enciente a second time, when the idea entered the defendant's head of abandoning her.
The law fixes no period during which a child must be in the continuous possession of the status of a
natural child; and the period in this case was long enough to evince the father's resolution to concede the
status. The circumstance that he abandoned the mother and child shortly before this action was started is
unimportant. The word "continuous" in subsection 2 of article 135 of the Civil Code does not mean that
the concession of status shall continue forever, but only that it shall not be of an intermittent character
while it continues.
What has been said disposes of the principal feature of the defendant's appeal. With respect to the
appeal of the plaintiffs, we are of the opinion that the trial court was right in refusing to give damages to
the plaintiff, Antonia Loanco, for supposed breach of promise to marry. Such promise is not satisfactorily
proved, and we may add that the action for breach of promise to marry has no standing in the civil law,
apart from the right to recover money or property advanced by the plaintiff upon the faith of such promise.
This case exhibits none of the features necessary to maintain such an action. Furthermore, there is no
proof upon which a judgment could be based requiring the defendant to recognize the second baby, Pacita
Loanco.
Finally, we see no necessity or propriety in modifying the judgment as to the amount of the
maintenance which the trial court allowed to Ismael Loanco. And in this connection we merely point out
that, as conditions change, the Court of First Instance will have jurisdiction to modify the order as to the
amount of the pension as circumstances will require.
The judgment appealed from is in all respects affirmed, without costs. So ordered.
Malcolm, Abad Santos, Hull, Vickers, and butte, JJ., concur.
Separate Opinions
VILLA-REAL, J., dissenting:
The majority opinion is predicated on two grounds: First, that the defendant-appellant Cesar Syquia
has expressly acknowledged his paternity of the child Ismael Loanco in an indubitable writing of his; and
secondly, that said child has enjoyed the uninterrupted possession of the status of a natural son of said
defendant-appellant Cesar Syquia, justified by his acts, as required by article 135 of the Civil Code.
 The first conclusion is drawn from Exhibits C, F, G, H, and J.
Exhibit C, which is in the handwriting of any signed by the defendant-appellant Cesar Syquia, reads
as follows:
Sabado, 1.30 p. m. — 14 febrero, 1931
Rev. PADRE:
La criatura que vendra el junio es mio y que yo quisiera mi nombre que se de a la criatura.
(Fdo.) CESAR SYQUIA
Exhibit F, G, H, and j, which are letters written by the said defendant-appellant Cesar Syquia to
plaintiff-appellee Antonia L. de Jesus prior to the birth of the child contain the following expressions:
Exhibit F, Feb. 18, 1931: "No hagas nada malo; ni manches mi nombre y el de junior tambien no lo
manches. A cuerdate muy bien Toni que es por ti y por junior volvere alli pronto. ..."
Exhibit G. Feb. 24, 1931: "Toni por favor cuida bien a junior eh? . ..."
Exhibit H, March 25, 1931: "Toni, cuida tu bien a junior y cuidate bien, y come tu mucho. ... ."
Exhibit J, June 1, 1931: "Cuidate bien y junior tambien . ..."
Article 135, number 1, provides as follows:
ART. 135. The father may be compelled to acknowledge his natural child in the following cases:
1. When an indisputable paper written by him, expressly acknowledging his paternity, is in
existence.
Maresa (Codigo Civil, Vol. 1, page 596, 4th ed.) commenting on said article, says:
Con arreglo al articulo que comentamos, no puede haber cuestion acerca de si es posible admitir por
otro medio la prueba de la paternidad natural. Entendemos que no, porquel el articulo es terminante y la
intencion de la ley mas terminante aun. Se establecio en la base 5.a que "no se admitira investigacion de la
paternidad sino en los casos de delito, o cuando exista escrito del padre en el que conste su voluntad
indubitada de reconocer por suyo al hijo, deliberadamente expresada con ese fin, o cuando medie posesion
de estado", y esto mismo es lo que se ordena en el presente articulo.
No puede, pues, prosperar la demanda para obligar al padre al reconocimiento de un hijo natural,
aunque solo se limite a pedir alimentos, si no se funda en el reconocimiento expreso del padre hecho por
escrito, en la posesion constante de estado de hijo natural o en sentencia firme recaida en causa por de
delito violacin, estupro o rapto. El escrito y la sentencia habran de acompañarse a la demandada, y no
puede admitirse otra prueba que la conducente a justificar que el escrito es indubitadamente del padre que
en el reconozca su paternidad, o la relativa a los actos directos del mismo padre o de su familia, que
demuestren la posesion continua de dicho estado. Para la prueba de estos dos hechos podran utilizarse
todos los medios que permite la Ley de Enjuiciamiento Civil, debiendo el juez rechazar la que por
cualquier otro concepto se dirija a la investigacion de la paternidad.
xxx xxx xxx
En cuanto al otro requisito de ser expreso el reconocimiento, tengase presente que no basta hacerlo
por incidencia; es indespensable que se consigne en el escrito la voluntad indubitada, clara y terminante
del padre, de reconocer por suyo al hijo, deliberadamente expresada con este fin, como se ordena an la
base 5.a antes citada, de las aprobadas por la Ley de 11 de mayo de 1888; de suerte que el escrito, aunque
contenga otros particulares, como sucede en los testamentos, ha de tener por objecto el reconocimiento
deliberado y expreso del hijo natural. No llena, pues, ese objecto la manifestacion que incidentalmente
haga el padre de ser hijo natural suyo la persona a quien se refiera, y mucho menos el dar a una persona el
titulo y tratamiento de hijo en cartas familiares. Sin embrago, en cada caso decidiran los un modo
suficientemente expresivo la paternidad, servira de base para acreditar, en union con otros datos, la
posesion contante del estado del hijo a los efectos de este articulo, y con arreglo a su numero 2.º
Let it first be noted that the law prohibits the investigation of paternity (Borres and Barza vs.
Municipality of Panay, 42 Phil., 643; Donado vs. Menendez Donado, 55 Phil., 861). The only exceptions
to this rule are those established in article 135 of the Civil Code quoted above, the first of which is that the
father may be compelled to acknowledge his paternity, "When an indubitable writing of his exists in
which he expressly acknowledge his paternity." The writing that is required by said provision must be
complete in itself and by itself, and must contain all the statements that are necessary to constitute a full
and clear acknowledgment by a father of his paternity of a child, in order that it may serve as a basis for
compelling him to acknowledge said child should be afterwards deny his paternity. If several writings put
together, each not being complete in itself, should be necessary in order to obtain a full and complete
expression of acknowledgment by a father of his paternity of a child, the general prohibition to investigate
paternity would be violated.
By the mere reading of all said letters, the one addressed to a priest and the others to the herein
plaintiff-appellee, Antonia L. de Jesus, the reader cannot ascertain which is the "creature that is coming on
June", which the defendant- appellant, Cesar Syquia, says in the said letter addressed to the priest is his,
nor who is the "junior" that he recommends to said Antonia L. de Jesus to take good care of, as there is
nothing in anyone of said letters from which it may be inferred that Antonia L. de Jesus was enciente at
the time, that the "junior" was the being she was carrying in her womb, and that it was the "creature that is
coming in June." To connect all these facts it was necessary to prove that Cesar Syquia had had illicit
relations with Antonia L. de Jesus, that as a result of such relations the woman became pregnant, and that
she gave birth to a boy in June 1931. All this certainly constitutes an investigation of the paternity of
Cesar Syquia of said child outside of the documents, which is prohibited by law.
Either taken alone therefore, or in connection with Exhibits F, G, H, and J, Exhibit C is insufficient
to constitute a "indubitable writing of Cesar Syquia, in which he expressly acknowledges his paternity of
the child Ismael Loanco," as required by number 1 of article 135 of the Civil Code.
As to the second ground of the decision of the majority, number 2 of article 135 of the Civil Code
provides:
ART. 135. The father may be compelled to acknowledge his natural child in the following cases:
xxx xxx xxx
2. When the child has been in the uninterrupted possession of the status of a natural child of the
defendant father, justified by the conduct of the father himself or that of his family.
The majority decision bases its connection on the second point on Exhibits C, F, G, H, and J and the
following facts, as found by the lower court in its decision:
Cuando la demandante Antonia L. de Jesus estaba para dar a luz, el demandado Cesar Syquia llamo
a su comprovinciano Dr. Crescenciano Talavera, medico que entonces ejercia su profesion en la Ciudad de
Manila, para que asistiera a aquella en su parto y a ese efecto llevo a la demandante Antonia L. de Jesus
acompañado del Dr. Talavera al Hospital San Jose, de esta Ciudad, donde ella dio a luz el 17 de junio de
1931 asistida por dicho Dr. Talavera, que firmo el certificado de necimiento Exhibit E.
Despues del nacimiento del demandante Ismael Loanco, el demandado estuvo viviendo con este y
con la demandante Antonio L. de Jesus en la casa No. 551 de la Calle Camarines, Manila, entregando a
dicha demandante el dinero para los gastos de casa y el pago del consumo de gas y luz electrica, habiendo
firmado el contrato para el suministro del fluido electrico en dicha casa.
 Exhibit, C, F, G, H, and J, are inadmissible in evidence the purpose of showing that Ismael Loanco
has enjoyed the continuous possession of the status of a natural child, because being of prior date to the
birth of said child they can not be considered as direct acts of Cesar Syquia showing possession of the
status of natural child, as no human being can enjoy such possession until he be born with legal capacity
for acquiring civil rights (Infante vs. Figueras, 4 Phil., 738; Granados vs. Leynes, G.R. No. 31224,
promulgated September 9, 1929, not reported).
child, and because the said child has not enjoyed the uninterrupted possession of the status of a natural
child of the said
defendant-appellant, justified by his own conduct or that of his family, as required by article 135 of the
Civil Code.
The decision appealed from should, therefore, be reversed and the complaint dismissed.

It must also be stated that Cesar Syquia refused to allow his name to be given to the child Ismael
when it was baptized, so that the name of its mother, Loanco, had to be given to it.
Avanceña, C.J. and Imperial, J., concur.
The facts which were found by the court below to have been proved by the testimony of the
witnesses during the trial, are not sufficient to constitute the uninterrupted possession of the status of
Ismael Loanco as natural child of said Cesar Syquia, in the light of the following authorities:
De Jesus v Syquia Case Digest
In the case of Buenaventura vs. Urbano (5 Phil., 1, 9), this court said:
CITATION: 58 Phil 866
. . . Confining ourselves to the acts proved to have been performed by Don Telesforo, we find that
FACTS:
he visited the mother of the plaintiff; that he paid money for her support; that he paid money for the
support of the plaintiff; that he hold one witness that the plaintiff was his son; that the plaintiff called him
Antonia Loanco de Jesus, a likely unmarried girl 20 years of age was a cashier in a barber shop owned by
"Papa," and that Don Telesforo answered to this designation; that when the plaintiff visited Don Telesforo
the defendant’s brother in law Vicente Mendoza. Cesar Syquia, the defendant, 23 years of age and an
he kissed his hand; that Don Telesforo wrote letters to him; that he paid his fees for instruction in school,
unmarried scion of a prominent family in Manila was accustomed to have his haircut in the said barber
and secured him a position in a commercial house.
shop. He got acquainted with Antonio and had an amorous relationship. As a consequence, Antonia got
pregnant and a baby boy was born on June 17, 1931.
xxx xxx xxx
In the early months of Antonia’s pregnancy, defendant was a constant visitor. On February 1931, he even
All these facts taken together are not sufficient to show that plaintiff possesses continuously the
wrote a letter to a rev father confirming that the child is his and he wanted his name to be given to the
status of a natural child. They may have a tendency to show that Don Telesforo was the father of the child,
child. Though he was out of the country, he continuously wrote letters to Antonia reminding her to eat on
but that it is not sufficient. It is not sufficient that the father recognize the child as his. By the express
time for her and “junior’s” sake. The defendant asks his friend Dr. Talavera to attend at the birth and
terms of article 135 that recognition must appear either in writing, made by the father, or it must appear in
hospital arrangements at St. Joseph Hospital in Manila.
acts which show that the son has possessed continuously the status of a natural child. No recognition by
the father of the child which comes short of the requirements of these two paragraphs is sufficient. It must
After giving birth, Syquia brought Antonia and his child at a House in Camarines Street Manila where
appear that it was the intention of the father to recognize the child as to give him that status, and that the
they lived together for about a year. When Antonia showed signs of second pregnancy, defendant
acts performed by him were done with that intention.
suddenly departed and he was married with another woman at this time.
Manresa (Codigo Civil, Vol. 1, page 602, 4th ed.) in citing some decisions of the Supreme Court of
It should be noted that during the christening of the child, the defendant who was in charge of the
Spain says:
arrangement of the ceremony caused the name Ismael Loanco to be given instead of Cesar Syquia Jr. that
was first planned.
En la sentencia de 5 de junio de 1906 declarase que para justificar la posesion de estado de hijo
natural se requiere que los actos sean de tal naturaleza que revelen, a la vez que el convencimiento de la
paternidad, la voluntad ostensible de tener y tratar al hijo como tal en las relaciones sociales y de la vida, y
ISSUES:
esto no accidentalmente, sino continuedamente, porque en tal supuesto los actos tiene el mismo valor que
el reconocimiento expreso.lawphil.net
1. Whether the note to the padre in connection with the other letters written by defendant to Antonia
during her pregnancy proves acknowledgement of paternity.
En el mismo criterio restrictivo se inspira la de 12 de octubre de 1907, que estima que el hecho de
que dos nodrizas criaron a otros tantos niños, sufragando el gasto el demandado, quien ademas iba a casa
2. Whether trial court erred in holding that Ismael Loanco had been in the uninterrupted possession of the
de la demandante, los besada, los llamaba hijos y encargaba para los mismos el mayor cuidado; el de que
status of a natural child, justified by the conduct of the father himself, and that as a consequence, the
subvenia a las necesidades de la madre y de los seis hijos que la nacieron, el primero de los cuales se
defendant in this case should be compelled to acknowledge the said Ismael Loanco.
llamaba como el padre; y el de que los porteros de la casa donde vivio la actora sabian que el finado
visitaba a esta, se lamentaba de la mucha familia que tenia y era tenido en el concepto publico como padre
HELD:
de los menores, no son suficientes para fundar la declaracion de paternidad, pues no es legal confundir
actos que puedan revelar mas o menos la presuncion o convencimiento en que una persona este de su
The letter written by Syquia to Rev. Father serves as admission of paternity and the other letters are
paternidad con relacion a hijos naturales, con los que demuestren su proposito de poner a estos hijos en la
sufficient to connect the admission with the child carried by Antonia. The mere requirement is that the
posesion de tal estado.
writing shall be indubitable.
It will thus be seen from the foregoing discussion and authorities that the herein defendant-appellant
“The law fixes no period during which a child must be in the continuous possession of the status of a
Cesar Syquia cannot be compelled to acknowledge the child Ismael Loanco as his natural son because
natural child; and the period in this case was long enough to reveal the father's resolution to admit the
there exists not an indubitable writing of his in which he expressly acknowledges his paternity of said
status”.
Supreme Court held that they agree with the trial court in refusing to provide damages to Antonia Loanco
for supposed breach of promise to marry since action on this has no standing in civil law. Furthermore,
there is no proof upon which a judgment could be based requiring the defendant to recognize the second
baby, Pacita Loanco. Finally, SC found no necessity to modify the judgment as to the amount of
maintenance allowed to Ismael Loanco in the amount of P50 pesos per month. They likewise pointed out
that it is only the trial court that has jurisdiction to modify the order as to the amount of pension.
REPUBLIC OF THE PHILIPPINES Petitioner, vs. CIPRIANO ORBECIDO III, Respondent
DECISION
QUISUMBING, J.:
Given a valid marriage between two Filipino citizens, where one party is later naturalized as a foreign
citizen and obtains a valid divorce decree capacitating him or her to remarry, can the Filipino spouse
likewise remarry under Philippine law?
Before us is a case of first impression that behooves the Court to make a definite ruling on this apparently
novel question, presented as a pure question of law.
In this petition for review, the Solicitor General assails the Decision dated May 15, 2002, of the Regional
Trial Court of Molave, Zamboanga del Sur, Branch 23 and its Resolution dated July 4, 2002 denying the
motion for reconsideration. The court a quo had declared that herein respondent Cipriano Orbecido III is
capacitated to remarry. The fallo of the impugned Decision reads:
WHEREFORE, by virtue of the provision of the second paragraph of Art. 26 of the Family Code
and by reason of the divorce decree obtained against him by his American wife, the petitioner is given the
capacity to remarry under the Philippine Law.
IT IS SO ORDERED.
The factual antecedents, as narrated by the trial court, are as follows.
On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the United Church
of Christ in the Philippines in Lam-an, Ozamis City. Their marriage was blessed with a son and a
daughter, Kristoffer Simbortriz V. Orbecido and Lady Kimberly V. Orbecido.
In 1986, Cipriano’s wife left for the United States bringing along their son Kristoffer. A few years later,
Cipriano discovered that his wife had been naturalized as an American citizen.
Sometime in 2000, Cipriano learned from his son that his wife had obtained a divorce decree and then
married a certain Innocent Stanley. She, Stanley and her child by him currently live at 5566 A. Walnut
Grove Avenue, San Gabriel, California.
Cipriano thereafter filed with the trial court a petition for authority to remarry invoking Paragraph 2
of Article 26 of the Family Code. No opposition was filed. Finding merit in the petition, the court granted
the same. The Republic, herein petitioner, through the Office of the Solicitor General (OSG), sought
reconsideration but it was denied.
In this petition, the OSG raises a pure question of law:
WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE 26 OF THE FAMILY
CODE
The OSG contends that Paragraph 2 of Article 26 of the Family Code is not applicable to the
instant case because it only applies to a valid mixed marriage; that is, a marriage celebrated between a
Filipino citizen and an alien. The proper remedy, according to the OSG, is to file a petition for annulment
or for legal separation.[5] Furthermore, the OSG argues there is no law that governs respondent’s
situation. The OSG posits that this is a matter of legislation and not of judicial determination.[6]
For his part, respondent admits that Article 26 is not directly applicable to his case but insists that
when his naturalized alien wife obtained a divorce decree which capacitated her to remarry, he is likewise
capacitated by operation of law pursuant to Section 12, Article II of the Constitution.[7]
At the outset, we note that the petition for authority to remarry filed before the trial court actually
constituted a petition for declaratory relief. In this connection, Section 1, Rule 63 of the Rules of Court
provides:
RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES
Section 1. Who may file petition—Any person interested under a deed, will, contract or other
written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or
other governmental regulation may, before breach or violation thereof, bring an action in the appropriate
Regional Trial Court to determine any question of construction or validity arising, and for a declaration of
his rights or duties, thereunder.
...
The requisites of a petition for declaratory relief are: (1) there must be a justiciable controversy; (2)
the controversy must be between persons whose interests are adverse; (3) that the party seeking the relief
has a legal interest in the controversy; and (4) that the issue is ripe for judicial determination.[8]
This case concerns the applicability of Paragraph 2 of Article 26 to a marriage between two Filipino
citizens where one later acquired alien citizenship, obtained a divorce decree, and remarried while in the
U.S.A. The interests of the parties are also adverse, as petitioner representing the State asserts its duty to
protect the institution of marriage while respondent, a private citizen, insists on a declaration of his
capacity to remarry. Respondent, praying for relief, has legal interest in the controversy. The issue raised
is also ripe for judicial determination inasmuch as when respondent remarries, litigation ensues and puts
into question the validity of his second marriage.
Coming now to the substantive issue, does Paragraph 2 of Article 26 of the Family Code apply to
the case of respondent? Necessarily, we must dwell on how this provision had come about in the first
place, and what was the intent of the legislators in its enactment?
Brief Historical Background
On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209, otherwise
known as the “Family Code,” which took effect on August 3, 1988. Article 26 thereof states:
All marriages solemnized outside the Philippines in accordance with the laws in force in the country
where they were solemnized, and valid there as such, shall also be valid in this country, except those
prohibited under Articles 35, 37, and 38.
On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No. 227 was
likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A second paragraph was
added to Article 26. As so amended, it now provides:
ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the
country where they were solemnized, and valid there as such, shall also be valid in this country, except
those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino
spouse shall have capacity to remarry under Philippine law. (Emphasis supplied)
On its face, the foregoing provision does not appear to govern the situation presented by the case at hand.
It seems to apply only to cases where at the time of the celebration of the marriage, the parties are a
Filipino citizen and a foreigner. The instant case is one where at the time the marriage was solemnized,
the parties were two Filipino citizens, but later on, the wife was naturalized as an American citizen and
subsequently obtained a divorce granting her capacity to remarry, and indeed she remarried an American
citizen while residing in the U.S.A.
Noteworthy, in the Report of the Public Hearings[9] on the Family Code, the Catholic Bishops’
Conference of the Philippines (CBCP) registered the following objections to Paragraph 2 of Article 26:
1. The rule is discriminatory. It discriminates against those whose spouses are Filipinos who divorce them
abroad. These spouses who are divorced will not be able to re-marry, while the spouses of foreigners who
validly divorce them abroad can.
2. This is the beginning of the recognition of the validity of divorce even for Filipino citizens. For those
whose foreign spouses validly divorce them abroad will also be considered to be validly divorced here and
can re-marry. We propose that this be deleted and made into law only after more widespread consultation.
(Emphasis supplied.)
Legislative Intent

Records of the proceedings of the Family Code deliberations showed that the intent of Paragraph 2 of
Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil Code Revision Committee, is to
avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after
obtaining a divorce, is no longer married to the Filipino spouse.
Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v. Romillo, Jr.[10]
The Van Dorn case involved a marriage between a Filipino citizen and a foreigner. The Court held therein
that a divorce decree validly obtained by the alien spouse is valid in the Philippines, and consequently, the
Filipino spouse is capacitated to remarry under Philippine law.
Does the same principle apply to a case where at the time of the celebration of the marriage, the parties
were Filipino citizens, but later on, one of them obtains a foreign citizenship by naturalization?
The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals. In Quita, the parties
were, as in this case, Filipino citizens when they got married. The wife became a naturalized American
citizen in 1954 and obtained a divorce in the same year. The Court therein hinted, by way of obiter
dictum, that a Filipino divorced by his naturalized foreign spouse is no longer married under Philippine
law and can thus remarry.
Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that
Paragraph 2 of Article 26 should be interpreted to include cases involving parties who, at the time of the
celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a
foreign citizen and obtains a divorce decree. The Filipino spouse should likewise be allowed to remarry
as if the other party were a foreigner at the time of the solemnization of the marriage. To rule otherwise
would be to sanction absurdity and injustice. Where the interpretation of a statute according to its exact
and literal import would lead to mischievous results or contravene the clear purpose of the legislature, it
should be construed according to its spirit and reason, disregarding as far as necessary the letter of the law.
A statute may therefore be extended to cases not within the literal meaning of its terms, so long as they
come within its spirit or intent.
If we are to give meaning to the legislative intent to avoid the absurd situation where the Filipino spouse
remains married to the alien spouse who, after obtaining a divorce is no longer married to the Filipino
spouse, then the instant case must be deemed as coming within the contemplation of Paragraph 2 of
Article 26.
In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article 26 as
follows:
1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and
2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.
The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but
their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to
remarry.
In this case, when Cipriano’s wife was naturalized as an American citizen, there was still a valid marriage
that has been celebrated between her and Cipriano. As fate would have it, the naturalized alien wife
subsequently obtained a valid divorce capacitating her to remarry. Clearly, the twin requisites for the
application of Paragraph 2 of Article 26 are both present in this case. Thus Cipriano, the “divorced”
Filipino spouse, should be allowed to remarry.
We are also unable to sustain the OSG’s theory that the proper remedy of the Filipino spouse is to file
either a petition for annulment or a petition for legal separation. Annulment would be a long and tedious
process, and in this particular case, not even feasible, considering that the marriage of the parties appears
to have all the badges of validity. On the other hand, legal separation would not be a sufficient remedy for
it would not sever the marriage tie; hence, the legally separated Filipino spouse would still remain married
to the naturalized alien spouse.
However, we note that the records are bereft of competent evidence duly submitted by respondent
concerning the divorce decree and the naturalization of respondent’s wife. It is settled rule that one who
alleges a fact has the burden of proving it and mere allegation is not evidence.
Accordingly, for his plea to prosper, respondent herein must prove his allegation that his wife was
naturalized as an American citizen. Likewise, before a foreign divorce decree can be recognized by our
own courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the
foreign law allowing it. Such foreign law must also be proved as our courts cannot take judicial notice of
foreign laws. Like any other fact, such laws must be alleged and proved.Furthermore, respondent must
also show that the divorce decree allows his former wife to remarry as specifically required in Article 26.
Otherwise, there would be no evidence sufficient to declare that he is capacitated to enter into another
marriage.
Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of the Family Code
(E.O. No. 209, as amended by E.O. No. 227), should be interpreted to allow a Filipino citizen, who has
been divorced by a spouse who had acquired foreign citizenship and remarried, also to remarry. However,
considering that in the present petition there is no sufficient evidence submitted and on record, we are
unable to declare, based on respondent’s bare allegations that his wife, who was naturalized as an
American citizen, had obtained a divorce decree and had remarried an American, that respondent is now
capacitated to remarry. Such declaration could only be made properly upon respondent’s submission of
the aforecited evidence in his favor.
ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED. The assailed
Decision dated May 15, 2002, and Resolution dated July 4, 2002, of the Regional Trial Court of Molave,
Zamboanga del Sur, Branch 23, are hereby SET ASIDE.
No pronouncement as to costs.
SO ORDERED.
Republic vs. Orbecido III - Gr No. 154380, Oct. 5, 2005
FACTS:
On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the United Church of
Christ in the Philippines in Lam-an, Ozamis City. Their marriage was blessed with a son and a daughter,
Kristoffer Simbortriz V. Orbecido and Lady Kimberly V. Orbecido. In 1986, Cipriano’s wife left for the
United States bringing along their son Kristoffer. A few years later, Cipriano discovered that his wife had
been naturalized as an American citizen. Sometime in 2000, Cipriano learned from his son that his wife
had obtained a divorce decree and then married a certain Innocent Stanley. She, Stanley and her child by
him currently live at 5566 A. Walnut Grove Avenue, San Gabriel, California. Cipriano thereafter filed
with the trial court a petition for authority to remarry invoking Par 2 of Article 26 of the Family Code. No
opposition was filed. Finding merit in the petition, the court granted the same. The Republic through the
Office of the Solicitor General sought reconsideration but it was denied.
ISSUE: Whether or not Orbecido can remarry under Art 26 of the FC.
HELD: In view of the foregoing, the SC states the twin elements for the application of Paragraph 2 of
Article 26 as follows:
1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and
2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.
The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but
their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to
remarry.
In this case, when Cipriano’s wife was naturalized as an American citizen, there was still a valid marriage
that has been celebrated between her and Cipriano. As fate would have it, the naturalized alien wife
subsequently obtained a valid divorce capacitating her to remarry. Clearly, the twin requisites for the
application of Paragraph 2 of Article 26 are both present in this case. Thus Cipriano, the “divorced”
Filipino spouse, should be allowed to remarry.
However, since Cipriano was not able to prove as fact his wife’s naturalization he is still barred from
remarrying.
ENGRACE NIÑAL for Herself and as Guardian ad Litem of the minors BABYLINE NIÑAL, INGRID
NIÑAL, ARCHIE NIÑAL & PEPITO NIÑAL, JR., petitioners, vs. NORMA BAYADOG, respondent.
DECISION
YNARES_SANTIAGO, J.:
May the heirs of a deceased person file a petition for the declaration of nullity of his marriage after his
death?
Pepito Niñal was married to Teodulfa Bellones on September 26, 1974. Out of their marriage were born
herein petitioners. Teodulfa was shot by Pepito resulting in her death on April 24, 1985. One year and 8
months thereafter or on December 11, 1986, Pepito and respondent Norma Badayog got married without
any marriage license. In lieu thereof, Pepito and Norma executed an affidavit dated December 11, 1986
stating that they had lived together as husband and wife for at least five years and were thus exempt from
securing a marriage license. On February 19, 1997, Pepito died in a car accident. After their father’s death,
petitioners filed a petition for declaration of nullity of the marriage of Pepito to Norma alleging that the
said marriage was void for lack of a marriage license. The case was filed under the assumption that the
validity or invalidity of the second marriage would affect petitioner’s successional rights. Norma filed a
motion to dismiss on the ground that petitioners have no cause of action since they are not among the
persons who could file an action for "annulment of marriage" under Article 47 of the Family Code.
Judge Ferdinand J. Marcos of the Regional Trial Court of Toledo City, Cebu, Branch 59, dismissed the
petition after finding that the Family Code is "rather silent, obscure, insufficient" to resolve the following
issues:
(1) Whether or not plaintiffs have a cause of action against defendant in asking for the declaration of the
nullity of marriage of their deceased father, Pepito G. Niñal, with her specially so when at the time of the
filing of this instant suit, their father Pepito G. Niñal is already dead;
(2) Whether or not the second marriage of plaintiffs’ deceased father with defendant is null and void ab
initio;
(3) Whether or not plaintiffs are estopped from assailing the validity of the second marriage after it was
dissolved due to their father’s death.
Thus, the lower court ruled that petitioners should have filed the action to declare null and void their
father’s marriage to respondent before his death, applying by analogy Article 47 of the Family Code
which enumerates the time and the persons who could initiate an action for annulment of marriage. Hence,
this petition for review with this Court grounded on a pure question of law. Scncä m
This petition was originally dismissed for non-compliance with Section 11, Rule 13 of the 1997 Rules of
Civil Procedure, and because "the verification failed to state the basis of petitioner’s averment that the
allegations in the petition are ‘true and correct’." It was thus treated as an unsigned pleading which
produces no legal effect under Section 3, Rule 7, of the 1997 Rules. However, upon motion of petitioners,
this Court reconsidered the dismissal and reinstated the petition for review.
The two marriages involved herein having been solemnized prior to the effectivity of the Family Code
(FC), the applicable law to determine their validity is the Civil Code which was the law in effect at the
time of their celebration. A valid marriage license is a requisite of marriage under Article 53 of the Civil
Code, the absence of which renders the marriage void ab initio pursuant to Article 80 in relation to Article
58. The requirement and issuance of marriage license is the State’s demonstration of its involvement and
participation in every marriage, in the maintenance of which the general public is interested. This interest
proceeds from the constitutional mandate that the State recognizes the sanctity of family life and of
affording protection to the family as a basic "autonomous social institution."Specifically, the Constitution
considers marriage as an "inviolable social institution," and is the foundation of family life which shall be
protected by the State. This is why the Family Code considers marriage as "a special contract of
permanent union" and case law considers it "not just an adventure but a lifetime commitment."
However, there are several instances recognized by the Civil Code wherein a marriage license is dispensed
with, one of which is that provided in Article 76, referring to the marriage of a man and a woman who
have lived together and exclusively with each other as husband and wife for a continuous and unbroken
period of at least five years before the marriage. The rationale why no license is required in such case is to
avoid exposing the parties to humiliation, shame and embarrassment concomitant with the scandalous
cohabitation of persons outside a valid marriage due to the publication of every applicant’s name for a
marriage license. The publicity attending the marriage license may discourage such persons from
legitimizing their status. To preserve peace in the family, avoid the peeping and suspicious eye of public
exposure and contain the source of gossip arising from the publication of their names, the law deemed it
wise to preserve their privacy and exempt them from that requirement. SdaaÓ miso
There is no dispute that the marriage of petitioners’ father to respondent Norma was celebrated without
any marriage license. In lieu thereof, they executed an affidavit stating that "they have attained the age of
majority, and, being unmarried, have lived together as husband and wife for at least five years, and that we
now desire to marry each other." The only issue that needs to be resolved pertains to what nature of
cohabitation is contemplated under Article 76 of the Civil Code to warrant the counting of the five year
period in order to exempt the future spouses from securing a marriage license. Should it be a cohabitation
wherein both parties are capacitated to marry each other during the entire five-year continuous period or
should it be a cohabitation wherein both parties have lived together and exclusively with each other as
husband and wife during the entire five-year continuous period regardless of whether there is a legal
impediment to their being lawfully married, which impediment may have either disappeared or intervened
sometime during the cohabitation period?
Working on the assumption that Pepito and Norma have lived together as husband and wife for five years
without the benefit of marriage, that five-year period should be computed on the basis of a cohabitation as
"husband and wife" where the only missing factor is the special contract of marriage to validate the union.
In other words, the five-year common-law cohabitation period, which is counted back from the date of
celebration of marriage, should be a period of legal union had it not been for the absence of the marriage.
This 5-year period should be the years immediately before the day of the marriage and it should be a
period of cohabitation characterized by exclusivity – meaning no third party was involved at any time
within the 5 years and continuity – that is unbroken. Otherwise, if that continuous 5-year cohabitation is
computed without any distinction as to whether the parties were capacitated to marry each other during the
entire five years, then the law would be sanctioning immorality and encouraging parties to have common
law relationships and placing them on the same footing with those who lived faithfully with their spouse.
Marriage being a special relationship must be respected as such and its requirements must be strictly
observed. The presumption that a man and a woman deporting themselves as husband and wife is based
on the approximation of the requirements of the law. The parties should not be afforded any excuse to not
comply with every single requirement and later use the same missing element as a pre-conceived escape
ground to nullify their marriage. There should be no exemption from securing a marriage license unless
the circumstances clearly fall within the ambit of the exception. It should be noted that a license is
required in order to notify the public that two persons are about to be united in matrimony and that anyone
who is aware or has knowledge of any impediment to the union of the two shall make it known to the local
civil registrar. The Civil Code provides:
Article 63: "x x x. This notice shall request all persons having knowledge of any impediment to the
marriage to advice the local civil registrar thereof. x x x."
Article 64: "Upon being advised of any alleged impediment to the marriage, the local civil registrar shall
forthwith make an investigation, examining persons under oath. x x x" Sdaad
This is reiterated in the Family Code thus:
Article 17 provides in part: "x x x. This notice shall request all persons having knowledge of any
impediment to the marriage to advise the local civil registrar thereof. x x x."
Article 18 reads in part: "x x x. In case of any impediment known to the local civil registrar or brought to
his attention, he shall note down the particulars thereof and his findings thereon in the application for a
marriage license. x x x."
This is the same reason why our civil laws, past or present, absolutely prohibited the concurrence of
multiple marriages by the same person during the same period. Thus, any marriage subsequently
contracted during the lifetime of the first spouse shall be illegal and void,[18] subject only to the exception
in cases of absence or where the prior marriage was dissolved or annulled. The Revised Penal Code
complements the civil law in that the contracting of two or more marriages and the having of extramarital
affairs are considered felonies, i.e., bigamy and concubinage and adultery.The law sanctions monogamy.
In this case, at the time of Pepito and respondent’s marriage, it cannot be said that they have lived with
each other as husband and wife for at least five years prior to their wedding day. From the time Pepito’s
first marriage was dissolved to the time of his marriage with respondent, only about twenty months had
elapsed. Even assuming that Pepito and his first wife had separated in fact, and thereafter both Pepito and
respondent had started living with each other that has already lasted for five years, the fact remains that
their five-year period cohabitation was not the cohabitation contemplated by law. It should be in the nature
of a perfect union that is valid under the law but rendered imperfect only by the absence of the marriage
contract. Pepito had a subsisting marriage at the time when he started cohabiting with respondent. It is
immaterial that when they lived with each other, Pepito had already been separated in fact from his lawful
spouse. The subsistence of the marriage even where there was actual severance of the filial companionship
between the spouses cannot make any cohabitation by either spouse with any third party as being one as
"husband and wife". Scsä daad
Having determined that the second marriage involved in this case is not covered by the exception to the
requirement of a marriage license, it is void ab initio because of the absence of such element.
The next issue to be resolved is: do petitioners have the personality to file a petition to declare their
father’s marriage void after his death?
Contrary to respondent judge’s ruling, Article 47 of the Family Code cannot be applied even by analogy to
petitions for declaration of nullity of marriage. The second ground for annulment of marriage relied upon
by the trial court, which allows "the sane spouse" to file an annulment suit "at any time before the death of
either party" is inapplicable. Article 47 pertains to the grounds, periods and persons who can file an
annulment suit, not a suit for declaration of nullity of marriage. The Code is silent as to who can file a
petition to declare the nullity of a marriage. Voidable and void marriages are not identical. A marriage that
is annulable is valid until otherwise declared by the court; whereas a marriage that is void ab initio is
considered as having never to have taken place and cannot be the source of rights. The first can be
generally ratified or confirmed by free cohabitation or prescription while the other can never be ratified. A
voidable marriage cannot be assailed collaterally except in a direct proceeding while a void marriage can
be attacked collaterally. Consequently, void marriages can be questioned even after the death of either
party but voidable marriages can be assailed only during the lifetime of the parties and not after death of
either, in which case the parties and their offspring will be left as if the marriage had been perfectly valid.
That is why the action or defense for nullity is imprescriptible, unlike voidable marriages where the action
prescribes. Only the parties to a voidable marriage can assail it but any proper interested party may attack
a void marriage. Void marriages have no legal effects except those declared by law concerning the
properties of the alleged spouses, regarding co-ownership or ownership through actual joint contribution,
and its effect on the children born to such void marriages as provided in Article 50 in relation to Article 43
and 44 as well as Article 51, 53 and 54 of the Family Code. On the contrary, the property regime
governing voidable marriages is generally conjugal partnership and the children conceived before its
annulment are legitimate. SupÓ rema
Contrary to the trial court’s ruling, the death of petitioner’s father extinguished the alleged marital bond
between him and respondent. The conclusion is erroneous and proceeds from a wrong premise that there
was a marriage bond that was dissolved between the two. It should be noted that their marriage was void
hence it is deemed as if it never existed at all and the death of either extinguished nothing.
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. Jurisä
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.
WHEREFORE, the petition is GRANTED. The assailed Order of the Regional Trial Court, Toledo City,
Cebu, Branch 59, dismissing Civil Case No. T-639, is REVERSED and SET ASIDE. The said case is
ordered REINSTATED.
SO ORDERED.
Ninal vs. Bayadog Case Digest
328 SCRA 122
FACTS:
Pepito Ninal was married with Teodulfa Bellones on September 26, 1974. They had 3 children namely
Babyline, Ingrid and Archie, petitioners. Due to the shot inflicted by Pepito to Teodulfa, the latter died on
April 24, 1985 leaving the children under the guardianship of Engrace Ninal. 1 year and 8 months later,
Pepito and Norma Badayog got married without any marriage license. They instituted an affidavit stating
that they had lived together for at least 5 years exempting from securing the marriage license. Pepito died
in a car accident on February 19, 1977. After his death, petitioners filed a petition for declaration of
nullity of the marriage of Pepito and Norma alleging that said marriage was void for lack of marriage
license.
ISSUES:
1. Whether or not the second marriage of Pepito was void?
2. Whether or not the heirs of the deceased may file for the declaration of the nullity of Pepito’s marriage
after his death?

HELD:

The marriage of Pepito and Norma is void for absence of the marriage license. They cannot be exempted
even though they instituted an affidavit and claimed that they cohabit for at least 5 years because from the
time of Pepito’s first marriage was dissolved to the time of his marriage with Norma, only about 20
months had elapsed. Albeit, Pepito and his first wife had separated in fact, and thereafter both Pepito and
Norma had started living with each other that has already lasted for five years, the fact remains that their
five-year period cohabitation was not the cohabitation contemplated by law. Hence, his marriage to
Norma is still void.

Void marriages are deemed to have not taken place and cannot be the source of rights. It can be
questioned even after the death of one of the parties and any proper interested party may attack a void
marriage.