PERSONS and FAMILY RELATIONS

 Effects of Annulment GROUNDS:

 Support and custody during the pendency of action
 Application of arts 43.2, 43.3, 43.4, 43.5 and 44 to GANDIONCO VS. PENARANDA DELA CRUZ vs. DE LA CRUZ
marriages declared void ab initio or annulled under [155 SCRA 725] [22 SCRA 333]
arts 40 and 50
 Delivery of presumptive legitimes
 Recording requirement FACTS:
 Effects on children Private respondent, Teresita Gandionco, filed a complaint
 Name and surname against herein petitioner, Froilan Gandionco for legal
separation on the ground of concubinage as a civil case.
Teresita also filed a criminal complaint of concubinage
LEGAL SEPARATION cases
against her husband. She likewise filed an application for
the provisional remedy of support pendent elite which was
grounds
approved and ordered by the respondent judge. Petitioner
gandionco vs penaranda 155 scra 725
moved to suspend the action for legal separation and the
dela cruz v dela cruz 22 scra 333
incidents consequent thereto such as the support for
partosa-jo v ca 216 scra 692
pendent elite, in view of the criminal case for concubinage
us v mcmann 4 phil 565
filed against him. He contends that the civil action for legal
lapuz sy v eufemio 43 scra 177
separation is inextricably tied with the criminal action thus,
all proceedings related to legal separation will have to be
defenses
suspended and await the conviction or acquittal of the
people v sansano 59 phil 73
criminal case.
ocampo v florenciano 107 phil 35
brown v yambao 109 phil 168
ISSUE:
bugayong v ginez 100 phil 620
Whether or not a civil case for legal separation can proceed
matubis v praxedes 109 phil 620
pending the resolution of the criminal case for concubinage.
samosa-ramos v. vamenta, supra
contreras vs macaraig, supra
HELD:
Supreme Court ruled that the contentions of the petitioner
effects of filing
were incorrect. A civil action for legal separation on the
dela vina v villareal 41 phil 13
ground of concubinage may proceed ahead of, or
reyes v ines-luciano 88 scra 803
simultaneously with, a criminal action for concubinage,
lapuz sy vs eufemio, supra
because said civil action is not one to enforce the civil
liability arising from the offense, even if both the civil and
effects of decree
criminal actions arise from or are related to the same
matute v macadalo 99 scra 340
offense. Such civil action is one intended to obtain the right
laperal c republic 6 scra 357
to live separately, with the legal consequences thereof
banez v banez gr 132592 and gr 133628 January 23,
including the dissolution of the conjugal partnership of gains,
2002
custody of the children, support and disqualifications from
macadangdang v ca 108 scra 314
inheriting from the innocent spouse. Decree of legal
separation may be issued upon proof by preponderance of
evidence, where no criminal proceeding or conviction is
necessary.

Furthermore, the support pendente lite, as a remedy, can be

availed of in an action for legal separation, and granted at
the discretion of the judge. If in case, the petitioner finds
the amount of support pendente lite ordered as too onerous,
he can always file a motion to modify or reduce the same.

PARTOSA – JO vs. CA

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US vs. McMann
[4 PHIL 565]
The defendant, McMann, and one McKay were packers at
Camp Vicars in Mindanao, employed by the Quartermaster's
Department of the Army. On the day in question the
defendant had charge of some mules about one and one half
miles from the camp. McKay was not on guard at the time,
but, for some reason which does not appear, was near the
place where the defendant was stationed with the mules.
McKay went to the house of a Moro, Amay Pindolonan, for
the purpose of getting matches with which to light his cigar.
With his revolver in his hand he attempted to enter the
house, but the owner would not allow him to do so. A few
moments later the defendant arrived at the same house. He
attempted to enter, but was unable to do so on account of
the opposition of the owner. He also carried his revolver in
his hand with the hammer raised ready to be discharged. A
Moro named Master, who was there at the time, was carving
the head of a bolo with one hand, holding the blade in the
other. The defendant snatched the bolo from him, cutting his
fingers. This Moro left for the camp to report the matter to
the authorities. Soon after this McKay and the Moro
Pindolonan, being seated side by side at a distance of from 3
to 6 feet from the defendant, who was either standing or
sitting on the stairway which led into the house, the latter
raised his pistol and fired at McKay. The bullet struck him in
the back of the head and killed him instantly. The Moro at
once jumped up, looked around to see where the shot came
from, and started to run, whereupon the defendant shot
him. The exact nature of his injuries does not appear,, but it
appears that at the time of the trial, about a month after the
event, he was still in the hospital. At some time, probably
after the killing of McKay, although the defendant says it was
before, the latter killed a dog which was on the premises.
The defendant and McKay were both drunk at this time.
That the defendant fired the shot which killed McKay is
practically admitted by him in his testimony and the fact is
also proved by three or four eyewitnesses. It is accidental
and that he had no intention of killing McKay. In the face of
the positive testimony of the witnesses there is no ground
for saying that the shooting was accidental. Two of the
Moros testified that they saw him discharge his revolver at
McKay. In view of the fact that McKay and the Moro were
sitting side by side, it may perhaps have been difficult for
the witnesses to have known at which one of the two the
defendant aimed, but their testimony makes it plain that in
no event was the discharge of the revolver accidental.
As to the second claim of the defendant that he had no
intention of killing McKay, the only evidence in support of it
is the proof that the defendant and McKay were good friends
prior to the occurrence and that no reason is shown why he
should have committed such an act. It may be difficult to
state what the exact cause was. It appears from the
testimony that while they were in the position above stated
the defendant was talking to McKay, but McKay said nothing
in reply. The cause for the commission of the crime might be
found perhaps in this conversation, if we knew what it was.
Or perhaps the defendant killed McKay because he, the
defendant, was drunk. But whatever the cause may have
been it is not absolutely necessary for us to find a motive
therefor. The question of motive is of course very important
in cases where there is doubt as to whether the defendant is
or is not the person who committed the act, but in this case,
where it is proved beyond all doubt that the defendant was
the one who caused the death of McKay, it is not so
important to know the exact reason for the deed.
The defendant also claims that the court below erred in
holding that the crime was committed with alevosia. The
judge below based his holding upon the fact that McKay was
shot from behind. The authorities cited by the defendant
from the supreme court of Spain may be divided into two
classes. One class includes cases in which the evidence did
not show by eyewitnesses the exact way in which the crime
was committed. The court held that under these
circumstances alevosia could not be presumed from the
condition in which the body was found or from proof that the
shot must have come from behind. These cases have no
application to the case at bar, for here the proof shows
exactly how the offense was committed. The second class of
cases includes those in which, after a struggle has
commenced between the parties on one side and on the
other, and after each side is notified of the intention of the
other side to do them injury, a member of one party is killed
by a member from the other by a blow from behind. These
cases have no application to the case at bar, for here before
any struggle between McKay and McMann had commenced,
or before there was any indication, so far as the evidence
goes, of any trouble between them, and without any
warning, the defendant shot McKay in the back of the head.
We do not understand that the defendant claims that he
intended to shoot the Moro when he killed McKay, but even if
this claim were made and supported, we do not see how it
could change the result in view of the fact that McKay was
shot from behind without any warning and with no
intimation that an attack was to be made upon him or the
Moro. What the rule would be had McKay been facing
McMann when the latter fired at the back of the Moro, we do
not, therefore, have to decide.
The court below held that the defendant was drunk at the
time the act was committed, but held also that drunkenness
was habitual with him and therefore his condition could not
be taken into consideration for the purpose of lessening the
sentence. The defendant in this court claims that the court
erred in holding that drunkenness was habitual with the
defendant. The testimony upon that point furnished by one
of the witnesses for the defendant is as follows:
Q. Did you say that you saws the
accused and McKay drinking together on
the night before the day of the
occurrence? —
A. Yes, sir.
Q. Is it not true that the said night
was the first time you saw the accused
drinking? —
A. No, sir. It is not true. I have seen
him drink before.
Q. But you never saw him drunk
before? —
A. Yes, sir.
Q. How many times had you seen
the accused drunk before? —
A. That is a difficult question to
answer; I have seen him drunk many
times. The first time I knew the accused
I saw him drunk twelve or more times.
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 Q. Then you mean to say that
drunkenness was habitual with the
accused? —
A. When I have seen him drinking,
usually he retired drunk to the quarters.
Q. How many times have you seen
the accused drinking during the time
you have known him? —
A. I could not say; too may times to
recollect.
Q. Are you sure of this? —
A. Yes, sir.
We think this testimony justifies the court below in its
holding in view of what is said in some of the decisions cited
by the defendant in his brief. In the case of Commonwealth
vs. Whitney (5 Gray; 85) the court said:
The exact degree of intemperance which
constitutes a drunkard it may not be easy to
define, but speaking in general terms, and with
the accuracy of which the matter is susceptible, he
is a drunkard whose habit is to get drunk, "whose
ebriety has become habitual." To convict a man of
the offense of being a common drunkard it is, at
the least, necessary to show that he is an habitual
drunkard. Indeed the terms 'drunkard' and
'habitual drunkard' mean the same thing.
In the case of Ludwick vs. Commonwealth (18 Penn. St.,
172) the court said:
A man may be an habitual drunkard, and yet be
sober for days and weeks together. The only rule
is, Has he a fixed habit of drunkenness? Was he
habituated to intemperance whenever the
opportunity offered?
The judgment of the court below is affirmed with the costs of
this instance against the defendant.
LAPUZ - SY vs. EUFEMIO
[43 SCRA 177]
FACTS:
Carmen Lapuz-Sy filed a petition for legal separation against
Eufemio Eufemio on August 1953. They were married civilly
on September 21, 1934 and canonically after nine days.
They had lived together as husband and wife continuously
without any children until 1943 when her husband
abandoned her. They acquired properties during their
marriage. Petitioner then discovered that her husband
cohabited with a Chinese woman named Go Hiok on or about
1949. She prayed for the issuance of a decree of legal
separation, which among others, would order that the
defendant Eufemio should be deprived of his share of the
conjugal partnership profits.
Eufemio counterclaimed for the declaration of nullity of his
marriage with Lapuz-Sy on the ground of his prior and
subsisting marriage with Go Hiok. Trial proceeded and the
parties adduced their respective evidence. However, before
the trial could be completed, respondent already scheduled
to present surrebuttal evidence, petitioner died in a
vehicular accident on May 1969. Her counsel duly notified
the court of her death. Eufemio moved to dismiss the
petition for legal separation on June 1969 on the grounds
that the said petition was filed beyond the one-year period
provided in Article 102 of the Civil Code and that the death
of Carmen abated the action for legal separation.
Petitioner’s counsel moved to substitute the deceased
Carmen by her father, Macario Lapuz.
ISSUE:
Whether or not the death of the plaintiff, before final decree
in an action for legal separation, abate the action and will it
also apply if the action involved property rights.
HELD:
An action for legal separation is abated by the death of the
plaintiff, even if property rights are involved. These rights
are mere effects of decree of separation, their source being
the decree itself; without the decree such rights do not come
into existence, so that before the finality of a decree, these
claims are merely rights in expectation. If death supervenes
during the pendency of the action, no decree can be
forthcoming, death producing a more radical and definitive
separation; and the expected consequential rights and
claims would necessarily remain unborn.
The petition of Eufemio for declaration of nullity is moot and
academic and there could be no further interest in
continuing the same after her demise, that automatically
dissolved the questioned union. Any property rights
acquired by either party as a result of Article 144 of the Civil
Code of the Philippines 6 could be resolved and determined
in a proper action for partition by either the appellee or by
the heirs of the appellant.
DEFENSES:
PEOPLE vs. SANSANO
[58 PHIL 73]
Filipina Wife No Longer Guilty of Adultery
Case: People vs Sansano and Ramos 59 Phil. 73
Facts of the Case: A and B, husband and wife, respectively,
were legally married. Later, B abandoned A. B Lived with C.
A did nothing to interfere with the relations of his wife and
her paramour. He event went to Hawaii, completely
abandoning his wife B for more than seven years. Later, A
returned and charged B and C with adultery.
Issue: Is B guilty of adultery?
Decision of the Supreme Court: B should be acquitted
because A's conduct warranted the inference that in truth,
as well as in fact, he had consented to the philandering of
his wife.
OCAMPO vs. FLORENCIANO
[107 PHIL 35]
FACTS:Jose de Ocampo and Serafina Florenciano were
married in 1938. They begot several children who are not
living with plaintiff. In March 1951, latter discovered on
several occasions that his wife was betraying his trust by
maintaining illicit relations with Jose Arcalas. Having found
out, he sent the wife to Manila in June 1951 to study beauty
culture where she stayed for one year. Again plaintiff
discovered that the wife was going out with several other
man other than Arcalas. In 1952, when the wife finished her
studies, she left plaintiff and since then they had lived
separately. In June 1955, plaintiff surprised his wife in the
act of having illicit relations with Nelson Orzame. He
signified his intention of filing a petition for legal separation
to which defendant manifested conformity provided she is
not charged with adultery in a criminal action. Accordingly,
Ocampo filed a petition for legal separation in 1955.
ISSUE:
Whether the confession made by Florenciano constitutes the
confession of judgment disallowed by the Family Code.
HELD:
Florenciano’s admission to the investigating fiscal that she
committed adultery, in the existence of evidence of adultery
other than such confession, is not the confession of
judgment disallowed by Article 48 of the Family Code. What
is prohibited is a confession of judgment, a confession done
in court or through a pleading. Where there is evidence of
the adultery independent of the defendant’s statement
agreeing to the legal separation, the decree of separation
should be granted since it would not be based on the
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confession but upon the evidence presented by the plaintiff.
What the law prohibits is a judgment based exclusively on
defendant’s confession. The petition should be granted
based on the second adultery, which has not yet prescribed.
BROWN vs. YAMBAO
[109 PHIL 168]
On July 14, 1955, William H. Brown filed suit in the Court of
First Instance of Manila to obtain legal separation from his
lawful wife Juanita Yambao. He alleged under oath that while
interned by the Japanese invaders, from 1942 to 1945, at
the University of Sto. Tomas internment camp, his wife
engaged in adulterous relations with one Carlos Field of
whom she begot a baby girl that Brown learned of his wifes
misconduct only in 1945, upon his release from internment;
that thereafter the spouse lived separately and later
executed a document (Annex A ) liquidating their conjugal
partnership and assigning certain properties to the erring
wife as her share. The complaint prayed for confirmation of
the liquidation agreement; for custody of the children issued
of the marriage; that the defendant be declared disqualified
to succeed the plaintiff; and for their remedy as might be
just and equitable.
Upon petition of the plaintiff, the court subsequently
declared the wife in default, for failure to answer in due
time, despite service of summons; and directed the City
Fiscal or his representatives to—
investigate, in accordance with Article 101 of the
Civil Code, whether or not a collusion exists
between the parties and to report to this Court the
result of his investigation within fifteen (15) days
from receipt of copy of this order. The City Fiscal
or his representative is also directed to intervene
in the case in behalf of the State. (Rec. App. p. 9).
As ordered, Assistant City Fiscal Rafael Jose appeared at the
trial, and cross-examined plaintiff Brown. His questions
(strenuously objected to by Brown's counsel) elicited the fact
that after liberation, Brown had lived maritally with another
woman and had begotten children by her. Thereafter, the
court rendered judgment denying the legal separation
asked, on the ground that, while the wife's adultery was
established, Brown had incurred in a misconduct of similar
nature that barred his right of action under Article 100 of the
new Civil Code, providing:
ART. 100. The legal separation may be claimed
only by the innocent spouse, provided there has
been no condonation or of consent to the adultery
or concubinage. Where both spouses are
offenders, a legal separation cannot be claimed by
either of them. Collusion between the parties to
obtain legal separation shall cause the dismissal of
the petition.
that there had been consent and connivance, and because
Brown's action had prescribed under Article 102 of the same
Code:
ART. 102 An action for legal separation cannot be
filed except within one year from and after the
date on which the plaintiff became cognizant of
the cause and within five years from and after
date when such cause occurred.
since the evidence showed that the learned of his wife's
infidelity in 1945 but only filed action in 1945.
Brown appeared to this Court, assigning the following errors:
The court erred in permitting the Assistant Fiscal
Rafel Jose of Manila to act as counsel for the
defendant, who defaulted.
The court erred in declaring that there was
condonation of or consent to the adultery.
The court erred in dismissing the plaintiff's
complaint.
Appellant Brown argues that in cross-examining him with
regard to his marital relation with Lilia Deito, who was not
his wife, the Assistant Fiscal acted as consel for the
defaulting wife, "when the power of the prosecuting officer is
limited to finding out whether or not there is collusion, and if
there is no collusion, which is the fact in the case at bar, to
intervene for the state which is not the fact in the instant
case, the truth of the matter being that he intervened for
Juanita Yambao, the defendant-appellee, who is private
citizen and who is far from being the state.".
The argument is untenable. Collusion in matrimonial cases
being "the act of married persons in procuring a divorce by
mutual consent, whether by preconcerted commission by
one of a matrimonial offense, or by failure, in pursuance of
agreement to defend divorce proceedings" (Cyclopedia Law
Dictionary; Nelson, Divorce and Separation, Section 500), it
was legitimate for the Fiscal to bring to light any
circumstances that could give rise to the inference that the
wife's default was calculated, or agreed upon, to enable
appellant to obtain the decree of legal separation that he
sought without regard to the legal merits of his case. One
such circumstance is obviously the fact of Brown's
cohabitation with a woman other than his wife, since it bars
him from claiming legal separation by express provision of
Article 100 of the new Civil Code. Wherefore, such evidence
of such misconduct, were proper subject of inquiry as they
may justifiably be considered circumstantial evidence of
collusion between the spouses.
The policy of Article 101 of the new Civil Code, calling for the
intervention of the state attorneys in case of uncontested
proceedings for legal separation (and of annulment of
marriages, under Article 88), is to emphasize that marriage
is more than a mere contract; that it is a social institution in
which the state is vitally interested, so that its continuation
or interruption cannot be made depend upon the parties
themselves (Civil Code, Article 52; Adong vs, Cheong Gee,
43 Phil, 43; Ramirez vs. Gmur 42 Phil. 855; Goitia vs.
Campos, 35 Phil. 252). It is consonant with this policy that
the injury by the Fiscal should be allowed to focus upon any
relevant matter that may indicate whether the proceedings
for separation or annulment are fully justified or not.
The court below also found, and correctly held that the
appellant's action was already barred, because Brown did
not petition for legal separation proceedings until ten years
after he learned of his wife's adultery, which was upon his
release from internment in 1945. Under Article 102 of the
new Civil Code, action for legal separation can not be filed
except within one (1) year from and after the plaintiff
became cognizant of the cause and within five years from
and after the date when such cause occurred. Appellant's
brief does not even contest the correctness of such findings
and conclusion.
It is true that the wife has not interposed prescription as a
defense. Nevertheless, the courts can take cognizance
thereof, because actions seeking a decree of legal
separation, or annulment of marriage, involve public interest
and it is the policy of our law that no such decree be issued
if any legal obstacles thereto appear upon the record.
Hence, there being at least two well established statutory
grounds for denying the remedy sought (commission of
similar offense by petitioner and prescription of the action),
it becomes unnecesary to delve further into the case and
ascertain if Brown's inaction for ten years also evidences
condonation or connivance on his part. Even if it did not, his
situation would not be improved. It is thus needless to
discuss the second assignment of error.
The third assignment of error being a mere consequence of
the others must necessarily fail with them.
The decision appealed from is affirmed, with costs against
appellant. So ordered.
BUGAYONG vs. GINEZ
[100 PHIL 620]
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FACTS:
Benjamin Bugayong, a serviceman in the US Navy was
married with Leonila Ginez on August 1949 at Pangasinan
while on furlough leave. Immediately after the marriage,
they lived with the sisters of Bugayong in said municipality
before he went back to duty. The couple came to an
agreement that Ginez would stay with his sisters who later
moved in Manila. On or about July 1951, she left the
dwelling of the sisters-in-law and informed her husband by
letter that she had gone to Pangasinan to reside with her
mother and later on moved to Dagupan to study in a local
college.
Petitioner then began receiving letters from Valeriana
Polangco, (plaintiff’s sister-in-law) and some from
anonymous writers, which were not produced at the hearing,
informing him of alleged acts of infidelity of his wife. He
admitted that his wife informed him by letter that a certain
Eliong kissed her. All these communications, prompted him
in October 1951 to seek the advice of the Navy Chaplain
who asked him to consult with the navy legal department.
In August 1952, Bugayong went to Pangasinan and looked
for his wife. They met in the house of the defendant’s
godmother. They proceeded to the house of Pedro, cousin of
the plaintiff where they stayed for 1 day and 1 night as
husband and wife. The next day, they slept together in their
own house. He tried to verify with Leonila the truth on the
information he received but instead of answering, she
merely packed up and left which he took as a confirmation
of the acts of infidelity. He then filed a complaint for legal
separation.
ISSUE: Whether or not there was condonation between
Bugayong and Ginez that may serve as a ground for
dismissal of the action.
HELD:
Condonation is the forgiveness of a marital offense
constituting a ground for legal separation. A single
voluntary act of marital intercourse between the parties
ordinarily is sufficient to constitute condonation and where
the parties live in the same house, it is presumed that they
live on terms of matrimonial cohabitation.
Furthermore, Art. 100 of the Civil Code states that the legal
separation may be claimed only by the innocent spouse,
provided there has been no condonation of or consent to the
adultery or concubinage .
MATUBIS vs. PRAXEDES
[109 PHIL 620]
Plaintiff Socorro Matubis, filed with the Court of First filed on April 24, 1956. The present action was,
Instance of Camarines Sur, on April 24, 1956, a complaint therefore, filed out of time and for that reason
for legal Separation and changed of surname against her action is barred.
husband defendant Zoilo Praxedes. The Court dismissed the 2. Article 100 of the new Civil Code provides that the
suit based on Art. 102 of the new Civil Code and Article 100 legal separation may be claimed only by the
of the new Civil Code. An appeal is hereby made to review innocent spouse, provided there has been no
the decision. condonation of or consent to the adultery or
concubinage. As shown in Exhibit B, the plaintiff
has consented to the commission of concubinage
FACTS: by her husband. The condonation and consent
here are not only implied but expressed. Having
Plaintiff and defendant were legally married on January 10, condoned and/or consented in writing, the plaintiff
1943 at Iriga, Camarines Sur. The couple, on May 30, 1944, is now undeserving of the court’s sympathy
agreed to live separately from each other, which status (People vs. Scheneckenburger, 73 Phil., 413).
remained unchanged until the present. On April 3, 1948,
plaintiff and defendant entered into an agreement (Exhibit
HELD:
B) stating that both of them will relinquish their right over
the other as legal husband and wife, that both cannot
prosecute the other for adultery or concubinage or any other We find that the decision appealed from is in accordance
crime or suit arising from the separation, that both are no with the evidence and the law on the matter. The same is
longer entitled for any support from the other, and that hereby affirmed, with costs.
neither of them can claim anything from the other from the
time they verbally separated.
SAMOSA RAMOS vs. VAMENTA
In January, 1955, defendant began cohabiting with one CONTRERAS vs. MACARAIG
Asuncion Rebulado and on September 1, 1955, said
Asuncion gave birth to a child who was recorded as the child
of said defendant (Exh. C.).It was shown also that defendant
and Asuncion deported themselves as husband and wife and
were generally reputed as such in the community.
ISSUES:
1. Whether or not the action had not yet prescribed.
2. Whether or not there was consent on the part of
the plaintiff to the concubinage.
ANSWER:
1. No. An action for legal separation had already
prescribed as provided for under Article 201 of the
new Civil Code.
2. Yes. The written agreement between them is an
unbridled license she gave her husband to commit
concubinage. Having consented to the
concubinage, the plaintiff cannot claim legal
separation.
Reasoning:
1. Under Art. 102 of the new Civil Code, an action for
legal separation cannot be filed except within one
year from and after the date on which the plaintiff
became cognizant of the cause and within five EFFECTS OF FILING:
years from and after the date when the cause
occurred. The plaintiff became aware of the illegal
cohabitation of her husband with Asuncion DELA VINA vs. VILLAREAL
Rebulado in January, 1955. The complaint was [41 PHIL 13]
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