G.R. NO. 154380 - REPUBLIC OF THE PHILIPPINES V. CIPRIANO ORBECIDO III.

G.R. No. 154380 - Republic of the Philippines v. Cipriano Orbecido III.

FIRST DIVISION

[G.R. NO. 154380 October 5, 2005]

REPUBLIC OF THE PHILIPPINES, Petitioner, v. 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?cralawlibrary

Before us is a case of first impression that behoves 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 Decision1 dated May 15, 2002, of the Regional
Trial Court of Molave, Zamboanga del Sur, Branch 23 and its Resolution2dated 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.3

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 4

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)ςrαlαωlιbrαrÿ

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 Hearings9 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?cralawlibrary

The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals.11 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. 12

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;
andcralawlibrary

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. 13

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.14 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.15 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.

Endnotes:

7
 Sec. 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic

autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from

conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency

and the development of moral character shall receive the support of the Government.

8
 Office of the Ombudsman v. Ibay, G.R. No. 137538, 3 September 2001, 364 SCRA 281, 286, citing Galarosa

v. Valencia, G.R. No. 109455, 11 November 1993, 227 SCRA 729, 737.

9
 Held on January 27 and 28, 1988 and February 3, 1988.
10
 No. L-68470, 8 October 1985, 139 SCRA 139.

11
 G.R. No. 124862, 22 December 1998, 300 SCRA 406.

12
 Lopez & Sons, Inc. v. Court of Tax Appeals, No. L-9274, 1 February 1957, 100 Phil. 850, 855.

13
 Cortes v. Court of Appeals, G.R. No. 121772, 13 January 2003, 395 SCRA 33, 38.

14
 Garcia v. Recio, G.R. No. 138322, 2 October 2001, 366 SCRA 437, 447.

15
 Id. at 451.

FIRST DIVISION

[G.R. No. L-68470. October 8, 1985.]

ALICE REYES VAN DORN, Petitioner, v. HON. MANUEL V. ROMILLO, JR., as Presiding

Judge of Branch CX, Regional Trial Court of the National Capital Region Pasay City, and
RICHARD UPTON, Respondents.

DECISION

MELENCIO-HERRERA, J.:

In this Petition for Certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set aside the
Orders, dated September 15, 1983 and August 3, 1984, in Civil Case No. 1075-P, issued by
respondent Judge, which denied her Motion to Dismiss said case, and her Motion for
Reconsideration of the Dismissal Order, respectively.

The basic background facts are that petitioner is a citizen of the Philippines while private
respondent is a citizen of the United States; that they were married in Hongkong in 1972; that,
after the marriage, they established their residence in the Philippines; that they begot two children
born on April 4, 1973 and December 18, 1975, respectively; that the parties were divorced in
Nevada, United States, in 1982; and that petitioner has re-married also in Nevada, this time to
Theodore Van Dorn.
Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No. 1075-P of the
Regional Trial Court, Branch CXV, in Pasay City, stating that petitioner’s business in Ermita,
Manila, (the Galleon Shop, for short), is conjugal property of the parties, and asking that petitioner
be ordered to render an accounting of that business, and that private respondent be declared with
right to manage the conjugal property. Petitioner moved to dismiss the case on the ground that
the cause of action is barred by previous judgment in the divorce proceedings before the Nevada
Court wherein respondent had acknowledged that he and petitioner had "no community property"
as of June 11, 1982. The Court below denied the Motion to Dismiss in the mentioned case on the
ground that the property involved is located in the Philippines so that the Divorce Decree has no
bearing in the case. The denial is now the subject of this Certiorari proceeding.

Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not subject to
appeal. Certiorari and Prohibition are neither the remedies to question the propriety of an
interlocutory order of the trial Court. However, when a grave abuse of discretion was patently
committed, or the lower Court acted capriciously and whimsically, then it devolves upon this Court
in a certiorari proceeding to exercise its supervisory authority and to correct the error committed
which, in such a case, is equivalent to lack of jurisdiction. 1 Prohibition would then lie since it
would be useless and a waste of time to go ahead with the proceedings. 2 We consider the petition
filed in this case within the exception, and we have given it due course.

For resolution is the effect of the foreign divorce on the parties and their alleged conjugal property
in the Philippines.

Petitioner contends that respondent is estopped from laying claim on the alleged conjugal property
because of the representation he made in the divorce proceedings before the American Court that
they had no community of property; that the Galleon Shop was not established through conjugal
funds; and that respondent’s claim is barred by prior judgment.

For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot prevail
over the prohibitive laws of the Philippines and its declared national policy; that the acts and
declaration of a foreign Court cannot, especially if the same is contrary to public policy, divest
Philippine Courts of jurisdiction to entertain matters within its jurisdiction.

For the resolution of this case, it is not necessary to determine whether the property relations
between petitioner and private respondent, after their marriage, were upon absolute or relative
community property, upon complete separation of property, or upon any other regime. The pivotal
fact in this case is the Nevada divorce of the parties.

The Nevada District Court, which decreed the divorce, had obtained jurisdiction over petitioner
who appeared in person before the Court during the trial of the case. It also obtained jurisdiction
over private respondent who, giving his address as No. 381 Bush Street, San Francisco, California,
authorized his attorneys in the divorce case, Karp & Gradt, Ltd., to agree to the divorce on the
ground of incompatibility in the understanding that there were neither community property nor
community obligations. 3 As explicitly stated in the Power of Attorney he executed in favor of the
law firm of KARP & GRAD LTD., 336 W. Liberty, Reno, Nevada, to represent him in the divorce
proceedings: chanrob1es virtual 1aw library

x           x           x

"You are hereby authorized to accept service of Summons, to file an Answer, appear on my behalf
and do all things necessary and proper to represent me, without further contesting, subject to the
following: jgc:chanrobles.com.ph

"1. That my spouse seeks a divorce on the ground of incompatibility.

"2. That there is no community of property to be adjudicated by the Court.

"3. That there are no community obligations to be adjudicated by the court.

x       x       x" 4 

There can be no question as to the validity of that Nevada divorce in any of the States of the
United States. The decree is binding on private respondent as an American citizen. For instance,
private respondent cannot sue petitioner, as her husband, in any State of the Union. What he is
contending in this case is that the divorce is not valid and binding in this jurisdiction, the same
being contrary to local law and public policy.

It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, 5 only
Philippine nationals are covered by the policy against absolute divorces the same being considered
contrary to our concept of public policy and morality. However, aliens may obtain divorces abroad,
which may be recognized in the Philippines, provided they are valid according to their national law.
6 In this case, the divorce in Nevada released private respondent from the marriage from the
standards of American law, under which divorce dissolves the marriage. As stated by the Federal
Supreme Court of the United States in Atherton v. Atherton, 45 L. Ed. 794, 799: jgc:chanrobles.com.ph

"The purpose and effect of a decree of divorce from the bond of matrimony by a court of
competent jurisdiction are to change the existing status or domestic relation of husband and wife,
and to free them both from the bond. The marriage tie, when thus severed as to one party, ceases
to bind either. A husband without a wife, or a wife without a husband, is unknown to the law.
When the law provides, in the nature of a penalty, that the guilty party shall not marry again, that
party, as well as the other, is still absolutely freed from the bond of the former marriage." cralaw virtua1aw library

Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He
would have no standing to sue in the case below as petitioner’s husband entitled to exercise
control over conjugal assets. As he is bound by the Decision of his own country’s Court, which
validly exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped
by his own representation before said Court from asserting his right over the alleged conjugal
property. chanroblesvirtualawlibrary
To maintain, as private respondent does, that, under our laws, petitioner has to be considered still
married to private respondent and still subject to a wife’s obligations under Article 109, et. seq. of
the Civil Code cannot be just. Petitioner should not be obliged to live together with, observe
respect and fidelity, and render support to private Respondent. The latter should not continue to
be one of her heirs with possible rights to conjugal property. She should not be discriminated
against in her own country if the ends of justice are to be served.

WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss the
Complaint filed in Civil Case No. 1075-P of his Court.

Without costs.

SO ORDERED.

Teehankee (Chairman), Plana, Relova Gutierrez, Jr., De la Fuente and Patajo, JJ., concur.

Endnotes:

1. Sanchez v. Zosa, 68 SCRA 171 (1975); Malit v. People, 114 SCRA 348 (1982).

2. U.S.T. v. Hon. Villanueva, Et Al., 106 Phil. 439 (1959).

3. Annex "Y", Petition for Certiorari.

4. p. 98, Rollo.

5. "Art. 15. Laws relating to family rights and duties or to the status, condition and legal capacity of persons are

binding upon citizens of the Philippines, even though living abroad." cralaw virtua1aw library

6. cf. Recto v. Harden, 100 Phil. 427 [1956]; Paras, Civil Code, 1971 ed., Vol. I, p. 52; Salonga, Private International

Law, 1979 ed., p. 231.

SECOND DIVISION

[G.R. No. 80116. June 30, 1989.]

 IMELDA MANALAYSAY PILAPIL, Petitioner, v. HON. CORONA IBAY-SOMERA, in her
capacity as Presiding Judge of the Regional Trial Court of Manila, Branch XXVI; HON.
LUIS C. VICTOR, in his capacity as the City Fiscal of Manila; and ERICH EKKEHARD
GEILING, Respondents.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OF OFFENSES; ADULTERY AND

CONCUBINAGE; SWORN WRITTEN COMPLAINT OF OFFENDED SPOUSE, JURISDICTIONAL. —
Under Article 344 of the Revised Penal Code, the crime of adultery, as well as four other crimes
against chastity, cannot be prosecuted except upon a sworn written complaint filed by the
offended spouse. It has long since been established, with unwavering consistency, that compliance
with this rule is a jurisdictional, and not merely a formal, requirement. While in point of strict law
the jurisdiction of the court over the offense is vested in it by the Judiciary Law, the requirement
for a sworn written complaint is just as jurisdictional a mandate since it is that complaint which
starts the prosecutory proceeding and without which the court cannot exercise its jurisdiction to
try the case.

2. ID.; ID.; ID.; EXCLUSIVE AND SUCCESSIVE RULE IN THE PROSECUTION OF SEDUCTION,
ABDUCTION, RAPE AND ACTS OF LASCIVIOUSNESS, NOT APPLICABLE TO CONCUBINAGE AND
ADULTERY. — Now, the law specifically provides that in prosecutions for adultery and concubinage
the person who can legally file the complaint should be the offended spouse, and nobody else.
Unlike the offenses of seduction, abduction, rape and acts of lasciviousness, no provision is made
for the prosecution of the crimes of adultery and concubinage by the parents, grandparents or
guardian of the offended party. The so-called exclusive and successive rule in the prosecution of
the first four offenses above mentioned do not apply to adultery and concubinage. It is significant
that while the State, as parens partriae, was added and vested by the 1985 Rules of Criminal
Procedure with the power to initiate the criminal action for a deceased or incapacitated victim in
the aforesaid offenses of seduction, abduction, rape and acts of lasciviousness, in default of her
parents, grandparents or guardian, such amendment did not include the crimes of adultery and
concubinage. In other words, only the offended spouse, and no other, is authorized by law to
initiate the action therefor.

3. ID.; ID.; ID.; LEGAL CAPACITY TO SUE IN CIVIL CASES, DETERMINED AS OF THE FILING OF
THE COMPLAINT, APPLIED TO PROSECUTION OF CRIMINAL CASES. — Corollary to such exclusive
grant of power to the offended spouse to institute the action, it necessarily follows that such
initiator must have the status, capacity or legal representation to do so at the time of the filing of
the criminal action. This is a familiar and express rule in civil actions; in fact, lack of legal capacity
to sue, as a ground for a motion to dismiss in civil cases, is determined as of the filing of the
complaint or petition. The absence of an equivalent explicit rule in the prosecution of criminal
cases does not mean that the same requirement and rationale would not apply. Understandably, it
may not have been found necessary since criminal actions are generally and fundamentally
commenced by the State, through the People of the Philippines, the offended party being merely
the complaining witness therein. However, in the so-called "private crimes", or those which cannot
be prosecuted de oficio, and the present prosecution for adultery is of such genre, the offended
spouse assumes a more predominant role since the right to commence the action, or to refrain
therefrom, is a matter exclusively within his power and option.

4. ID.; ID.; ID.; ID.; RATIONALE. — This policy was adopted out of consideration for the aggrieved
party who might prefer to suffer the outrage in silence rather than go through the scandal of a
public trial. Hence, as cogently argued by petitioner, Article 344 of the Revised Penal Code thus
presupposes that the marital relationship is still subsisting at the time of the institution of the
criminal action for adultery. This is a logical consequence since the raison d’etre of said provision
of law would be absent where the supposed offended party had ceased to be the spouse of the
alleged offender at the time of the filing of the criminal case.

5. ID.; ID.; ID.; ADULTERY AND CONCUBINAGE; AFTER A DIVORCE HAS BEEN DECREED, THE
INNOCENT SPOUSE NO LONGER HAS THE RIGHT TO INSTITUTE PROCEEDINGS AGAINST THE
OFFENDERS. — American jurisprudence, on cases involving statutes in that jurisdiction which are
in pari materia with ours, yields the rule that after a divorce has been decreed, the innocent
spouse no longer has the right to institute proceedings against the offenders where the statute
provides that the innocent spouse shall have the exclusive right to institute a prosecution for
adultery. Where, however, proceedings have been properly commenced, a divorce subsequently
granted can have no legal effect on the prosecution of the criminal proceedings to a conclusion.

6. ID.; ID.; ID.; ID.; U.S. RULE APPLIED IN THIS JURISDICTION. — We see no reason why the
same doctrinal rule should not apply in this case and in our jurisdiction, considering our statutory
law and jural policy on the matter. We are convinced that in cases of such nature, the status of the
complainant vis-a-vis the accused must be determined as of the time the complaint was filed.
Thus, the person who initiates the adultery case must be an offended spouse, and by this is meant
that he is still married to the accused spouse, at the time of the filing of the complaint.

7. CIVIL LAW; PERSONS AND FAMILY RELATIONS; MARRIAGE IN THE FEDERAL REPUBLIC OF
GERMANY BETWEEN A FILIPINA AND A GERMAN, RECOGNIZED IN THE PHILIPPINES. — In the
present case, the fact that private respondent obtained a valid divorce in his country, the Federal
Republic of Germany, is admitted. Said divorce and its legal effects may be recognized in the
Philippines insofar as private respondent is concerned in view of the nationality principle in our civil
law on the matter of status of persons.

8. ID.; ID.; ID.; SEVERANCE OF MATERIAL BOND HAD THE EFFECT OF DISSOCIATING THE
FORMER SPOUSES FROM EACH OTHER. — The allegation of private respondent that he could not
have brought this case before the decree of divorce for lack of knowledge, even if true, is of no
legal significance or consequence in this case. When said respondent initiated the divorce
proceeding, he obviously knew that there would no longer be a family nor marriage vows to
protect once a dissolution of the marriage is decreed. Neither would there be a danger of
introducing spurious heirs into the family, which is said to be one of the reasons for the particular
formulation of our law on adultery, since there would thenceforth be no spousal relationship to
speak of. The severance of the marital bond had the effect of dissociating the former spouses from
each other, hence the actuations of one would not affect or cast obloquy on the other.
9. REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OF OFFENSES; RULE IN MATA CASE
(18 PHIL. 4 90), NOT APPLICABLE TO CASE AT BAR. — The aforecited case of United States v.
Mata cannot be successfully relied upon by private Respondent. In applying Article 433 of the old
Penal Code, substantially the same as Article 333 of the Revised Penal Code, which punished
adultery "although the marriage be afterwards declared void", the Court merely stated that "the
lawmakers intended to declare adulterous the infidelity of a married woman to her marital vows,
even though it should be made to appear that she is entitled to have her marriage contract
declared null and void, until and unless she actually secures a formal judicial declaration to that
effect." Definitely, it cannot be logically inferred therefrom that the complaint can still be filed after
the declaration of nullity because such declaration that the marriage is void ab initio is equivalent
to stating that it never existed. There being no marriage from the beginning, any complaint for
adultery filed after said declaration of nullity would no longer have a leg to stand on. Moreover,
what was consequently contemplated and within the purview of the decision in said case is the
situation where the criminal action for adultery was filed before the termination of the marriage by
a judicial declaration of its nullity ab initio. The same rule and requisite would necessarily apply
where the termination of the marriage was effected, as in this case, by a valid foreign divorce.

DECISION

REGALADO, J.:

An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute divorce, only
to be followed by a criminal infidelity suit of the latter against the former, provides Us the
opportunity to lay down a decisional rule on what hitherto appears to be an unresolved
jurisdictional question.

On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and private
respondent Erich Ekkehard Geiling, a German national, were married before the Registrar of
Births, Marriages and Deaths at Friedensweiler in the Federal Republic of Germany. The marriage
started auspiciously enough, and the couple lived together for some time in Malate, Manila where
their only child, Isabella Pilapil Geiling, was born on April 20, 1980. 1

Thereafter, marital discord set in, with mutual recriminations between the spouses, followed by a
separation de facto between them.

After about three and a half years of marriage, such connubial disharmony eventuated in private
respondent initiating a divorce proceeding against petitioner in Germany before the Schoneberg
Local Court in January, 1983. He claimed that there was failure of their marriage and that they had
been living apart since April, 1982. 2

Petitioner, on the other hand, filed an action for legal separation, support and separation of
property before the Regional Trial Court of Manila, Branch XXXII, on January 23, 1983 where the
same is still pending as Civil Case No. 83-15866. 3
On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of Germany,
promulgated a decree of divorce on the ground of failure of marriage of the spouses. The custody
of the child was granted to petitioner. The records show that under German law said court was
locally and internationally competent for the divorce proceeding and that the dissolution of said
marriage was legally founded on and authorized by the applicable law of that foreign jurisdiction. 4

On June 27, 1986, or more than five months after the issuance of the divorce decree, private
respondent filed two complaints for adultery before the City Fiscal of Manila alleging that, while
still married to said respondent, petitioner "had an affair with a certain William Chia as early as
1982 and with yet another man named Jesus Chua sometime in 1983." Assistant Fiscal Jacinto A.
de los Reyes, Jr., after the corresponding investigation, recommended the dismissal of the cases
on the ground of insufficiency of evidence. 5 However, upon review, the respondent city fiscal
approved a resolution, dated January 8, 1986, directing the filing of two complaints for adultery
against the petitioner. 6 The complaints were accordingly filed and were eventually raffled to two
branches of the Regional Trial Court of Manila. The case entitled "People of the Philippines v.
Imelda Pilapil and William Chia", docketed as Criminal Case No. 87-52435, was assigned to Branch
XXVI presided by the respondent judge; while the other case, "People of the Philippines v. Imelda
Pilapil and James Chua", docketed as Criminal Case No. 87-52434 went to the sala of Judge
Leonardo Cruz, Branch XXV, of the same court. 7

On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that the
aforesaid resolution of respondent fiscal be set aside and the cases against her be dismissed. 8 A
similar petition was filed by James Chua, her co-accused in Criminal Case No. 87-52434. The
Secretary of Justice, through the Chief State Prosecutor, gave due course to both petitions and
directed the respondent city fiscal to inform the Department of Justice "if the accused have already
been arraigned and if not yet arraigned, to move to defer further proceedings" and to elevate the
entire records of both cases to his office for review. 9

Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and to suspend
further proceedings thereon. 10 As a consequence, Judge Leonardo Cruz suspended proceedings in
Criminal Case No. 87-52434. On the other hand, respondent judge merely reset the date of the
arraignment in Criminal Case No. 87-52435 to April 6, 1987. Before such scheduled date,
petitioner moved for the cancellation of the arraignment and for the suspension of proceedings in
said Criminal Case No. 87-52435 until after the resolution of the petition for review then pending
before the Secretary of Justice. 11 A motion to quash was also filed in the same case on the
ground of lack of jurisdiction, 12 which motion was denied by the respondent judge in an order
dated September 8, 1987. The same order also directed the arraignment of both accused therein,
that is, petitioner and William Chia. The latter entered a plea of not guilty while the petitioner
refused to be arraigned. Such refusal of the petitioner being considered by respondent judge as
direct contempt, she and her counsel were fined and the former was ordered detained until she
submitted herself for arraignment. 13 Later, private respondent entered a plea of not guilty. 14

On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition, with a
prayer for a temporary restraining order, seeking the annulment of the order of the lower court
denying her motion to quash. The petition is anchored on the main ground that the court is
without jurisdiction "to try and decide the charge of adultery, which is a private offense that
cannot be prosecuted de officio (sic), since the purported complainant, a foreigner, does not
qualify as an offended spouse having obtained a final divorce decree under his national law prior to
his filing the criminal complaint." 15

On October 21, 1987, this Court issued a temporary restraining order enjoining the respondents
from implementing the aforesaid order of September 8, 1987 and from further proceeding with
Criminal Case No. 87-52435. Subsequently, on March 23, 1988 Secretary of Justice Sedfrey A.
Ordoñez acted on the aforesaid petitions for review and, upholding petitioner’s ratiocinations,
issued a resolution directing the respondent city fiscal to move for the dismissal of the complaints
against the petitioner. 16

We find this petition meritorious. The writs prayed for shall accordingly issue. cralawnad

Under Article 344 of the Revised Penal Code, 17 the crime of adultery, as well as four other crimes
against chastity, cannot be prosecuted except upon a sworn written complaint filed by the
offended spouse. It has long since been established, with unwavering consistency, that compliance
with this rule is a jurisdictional, and not merely a formal, requirement. 18 While in point of strict
law the jurisdiction of the court over the offense is vested in it by the Judiciary Law, the
requirement for a sworn written complaint is just as jurisdictional a mandate since it is that
complaint which starts the prosecutory proceeding 19 and without which the court cannot exercise
its jurisdiction to try the case.

Now, the law specifically provides that in prosecutions for adultery and concubinage the person
who can legally file the complaint should be the offended spouse, and nobody else. Unlike the
offenses of seduction, abduction, rape and acts of lasciviousness, no provision is made for the
prosecution of the crimes of adultery and concubinage by the parents, grandparents or guardian of
the offended party. The so-called exclusive and successive rule in the prosecution of the first four
offenses above mentioned do not apply to adultery and concubinage. It is significant that while the
State, as parens partriae, was added and vested by the 1985 Rules of Criminal Procedure with the
power to initiate the criminal action for a deceased or incapacitated victim in the aforesaid offenses
of seduction, abduction, rape and acts of lasciviousness, in default of her parents, grandparents or
guardian, such amendment did not include the crimes of adultery and concubinage. In other
words, only the offended spouse, and no other, is authorized by law to initiate the action therefor.

Corollary to such exclusive grant of power to the offended spouse to institute the action, it
necessarily follows that such initiator must have the status, capacity or legal representation to do
so at the time of the filing of the criminal action. This is a familiar and express rule in civil actions;
in fact, lack of legal capacity to sue, as a ground for a motion to dismiss in civil cases, is
determined as of the filing of the complaint or petition.

The absence of an equivalent explicit rule in the prosecution of criminal cases does not mean that
the same requirement and rationale would not apply. Understandably, it may not have been found
necessary since criminal actions are generally and fundamentally commenced by the State,
through the People of the Philippines, the offended party being merely the complaining witness
therein. However, in the so-called "private crimes", or those which cannot be prosecuted de oficio,
and the present prosecution for adultery is of such genre, the offended spouse assumes a more
predominant role since the right to commence the action, or to refrain therefrom, is a matter
exclusively within his power and option.

This policy was adopted out of consideration for the aggrieved party who might prefer to suffer the
outrage in silence rather than go through the scandal of a public trial. 20 Hence, as cogently
argued by petitioner, Article 344 of the Revised Penal Code thus presupposes that the marital
relationship is still subsisting at the time of the institution of the criminal action for adultery. This
is a logical consequence since the raison d’etre of said provision of law would be absent where the
supposed offended party had ceased to be the spouse of the alleged offender at the time of the
filing of the criminal case. 21

In these cases, therefore, it is indispensable that the status and capacity of the complainant to
commence the action be definitely established and, as already demonstrated, such status or
capacity must indubitably exist as of the time he initiates the action. It would be absurd if his
capacity to bring the action would be determined by his status before or subsequent to the
commencement thereof, where such capacity or status existed prior to but ceased before, or was
acquired subsequent to but did not exist at the time of, the institution of the case. We would
thereby have the anomalous spectacle of a party bringing suit at the very time when he is without
the legal capacity to do so.

To repeat, there does not appear to be any local precedential jurisprudence on the specific issue as
to when precisely the status of a complainant as an offended spouse must exist where a criminal
prosecution can be commenced only by one who in law can be categorized as possessed of such
status. Stated differently and with reference to the present case, the inquiry would be whether it is
necessary in the commencement of a criminal action for adultery that the marital bonds between
the complainant and the accused be unsevered and existing at the time of the institution of the
action by the former against the latter. chanrobles virtual lawlibrary

American jurisprudence, on cases involving statutes in that jurisdiction which are in pari materia
with ours, yields the rule that after a divorce has been decreed, the innocent spouse no longer has
the right to institute proceedings against the offenders where the statute provides that the
innocent spouse shall have the exclusive right to institute a prosecution for adultery. Where,
however, proceedings have been properly commenced, a divorce subsequently granted can have
no legal effect on the prosecution of the criminal proceedings to a conclusion. 22

In the cited Loftus case, the Supreme Court of Iowa held that —

"‘No prosecution for adultery can be commenced except on the complaint of the husband or wife.’
Section 4932, Code. Though Loftus was husband of defendant when the offense is said to have
been committed, he had ceased to be such when the prosecution was begun; and appellant insists
that his status was not such as to entitle him to make the complaint. We have repeatedly said that
the offense is against the unoffending spouse, as well as the state, in explaining the reason for this
provision in the statute; and we are of the opinion that the unoffending spouse must be such when
the prosecution is commenced." (Emphasis supplied.)

We see no reason why the same doctrinal rule should not apply in this case and in our jurisdiction,
considering our statutory law and jural policy on the matter. We are convinced that in cases of
such nature, the status of the complainant vis-a-vis the accused must be determined as of the
time the complaint was filed. Thus, the person who initiates the adultery case must be an offended
spouse, and by this is meant that he is still married to the accused spouse, at the time of the filing
of the complaint.

In the present case, the fact that private respondent obtained a valid divorce in his country, the
Federal Republic of Germany, is admitted. Said divorce and its legal effects may be recognized in
the Philippines insofar as private respondent is concerned 23 in view of the nationality principle in
our civil law on the matter of status of persons.

Thus, in the recent case of Van Dorn v. Romillo, Jr., Et Al., 24 after a divorce was granted by a
United States court between Alice Van Dorn, a Filipina, and her American husband, the latter filed
a civil case in a trial court here alleging that her business concern was conjugal property and
praying that she be ordered to render an accounting and that the plaintiff be granted the right to
manage the business. Rejecting his pretensions, this Court perspicuously demonstrated the error
of such stance, thus: jgc:chanrobles.com.ph

"There can be no question as to the validity of that Nevada divorce in any of the States of the
United States. The decree is binding on private respondent as an American citizen. For instance,
private respondent cannot sue petitioner, as her husband, in any State of the Union . . .

"It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only
Philippine nationals are covered by the policy against absolute divorces the same being considered
contrary to our concept of public policy and morality. However, aliens may obtain divorces abroad,
which may be recognized in the Philippines, provided they are valid according to their national
law . . .

"Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He
would have no standing to sue in the case below as petitioner’s husband entitled to exercise
control over conjugal assets . . ."25 cralaw:red

Under the same considerations and rationale, private respondent, being no longer the husband of
petitioner, had no legal standing to commence the adultery case under the imposture that he was
the offended spouse at the time he filed suit.

The allegation of private respondent that he could not have brought this case before the decree of
divorce for lack of knowledge, even if true, is of no legal significance or consequence in this case.
When said respondent initiated the divorce proceeding, he obviously knew that there would no
longer be a family nor marriage vows to protect once a dissolution of the marriage is decreed.
Neither would there be a danger of introducing spurious heirs into the family, which is said to be
one of the reasons for the particular formulation of our law on adultery, 26 since there would
thenceforth be no spousal relationship to speak of. The severance of the marital bond had the
effect of dissociating the former spouses from each other, hence the actuations of one would not
affect or cast obloquy on the other.
The aforecited case of United States v. Mata cannot be successfully relied upon by
private Respondent. In applying Article 433 of the old Penal Code, substantially the same as Article
333 of the Revised Penal Code, which punished adultery "although the marriage be afterwards
declared void", the Court merely stated that "the lawmakers intended to declare adulterous the
infidelity of a married woman to her marital vows, even though it should be made to appear that
she is entitled to have her marriage contract declared null and void, until and unless she actually
secures a formal judicial declaration to that effect." Definitely, it cannot be logically inferred
therefrom that the complaint can still be filed after the declaration of nullity because such
declaration that the marriage is void ab initio is equivalent to stating that it never existed. There
being no marriage from the beginning, any complaint for adultery filed after said declaration of
nullity would no longer have a leg to stand on. Moreover, what was consequently contemplated
and within the purview of the decision in said case is the situation where the criminal action for
adultery was filed before the termination of the marriage by a judicial declaration of its nullity ab
initio. The same rule and requisite would necessarily apply where the termination of the marriage
was effected, as in this case, by a valid foreign divorce.

Private respondent’s invocation of Donio-Teves, Et. Al. v. Vamenta, herein before cited, 27 must
suffer the same fate of inapplicability. A cursory reading of said case reveals that the offended
spouse therein had duly and seasonably filed a complaint for adultery, although an issue was
raised as to its sufficiency but which was resolved in favor of the complainant. Said case did not
involve a factual situation akin to the one at bar or any issue determinative of the controversy
herein.

WHEREFORE, the questioned order denying petitioner’s motion to quash is SET ASIDE and another
one entered DISMISSING the complaint in Criminal Case No. 87-52435 for lack of jurisdiction. The
temporary restraining order issued in this case on October 21, 1987 is hereby made permanent.

SO ORDERED.

Melencio-Herrera, Padilla and Sarmiento, JJ., concur.

Separate Opinions

PARAS, J., concurring: chanrob1es virtual 1aw library

It is my considered opinion that regardless of whether We consider the German absolute divorce
as valid also in the Philippines, the fact is that the husband in the instant case, by the very act of
his obtaining an absolute divorce in Germany can no longer be considered as the offended party in
case his former wife actually has carnal knowledge with another, because in divorcing her, he
already implicitly authorized the woman to have sexual relations with others. A contrary ruling
would be less than fair for a man, who is free to have sex will be allowed to deprive the woman of
the same privilege.

In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the absolute
divorce between the American husband and his American wife as valid and binding in the
Philippines on the theory that their status and capacity are governed by their National law,
namely, American law. There is no decision yet of the Supreme Court regarding the validity of
such a divorce if one of the parties, say an American, is married to a Filipino wife, for then two (2)
different nationalities would be involved.

In the book of Senate President Jovito Salonga entitled Private International Law and precisely
because of the National law doctrine, he considers the absolute divorce as valid insofar as the
American husband is concerned but void insofar as the Filipino wife is involved. This results in what
he calls a "socially grotesque situation," where a Filipino woman is still married to a man who is no
longer her husband. It is the opinion however, of the undersigned that very likely the opposite
expresses the correct view. While under the national law of the husband the absolute divorce will
be valid, still one of the exceptions to the application of the proper foreign law (one of the
exceptions to comity) is when the foreign law will work an injustice or injury to the people or
residents of the forum. Consequently since to recognize the absolute divorce as valid on the part
of the husband would be injurious or prejudicial to the Filipino wife whose marriage would be still
valid under her national law, it would seem that under our law existing before the new Family
Code (which took effect on August 3, 1988) the divorce should be considered void both with
respect to the American husband and the Filipino wife.

The recent case of Van Dorn v. Romillo, Jr.(139 SCRA [1985]) cannot apply despite the fact that
the husband was an American with a Filipino wife because in said case the validity of the divorce
insofar as the Filipino wife is concerned was NEVER put in issue.

Endnotes:

1. Rollo, 5, 29.

2. Ibid., 6, 29.

3. Ibid., 7.

4. Ibid., 7, 29-30; Annexes A and A-1, Petition.

5. Ibid., 7, 178.

6. Ibid., 8; Annexes B, B-1 and B-2, id.

7. Ibid., 8-9, 178.

8. Ibid., 9, 178; Annex C, id.

9. Ibid., 9-10, 178; Annex D, id.

10. Ibid., 9; Annexes E and E-1, id.

11. Ibid., 10; Annex F, id.

12. Ibid., 9, 179; Annex G, id.

13. Ibid., 10; Annex H, id.

14. Ibid., 105.

15. Ibid., 11.

16. Ibid., 311-313.

17. Cf. Sec. 5, Rule 110, Rules of Court.

18. People v. Mandia, 60 Phil. 372, 375 (1934); People v. Zurbano, 37 SCRA 565, 569 (1971); People v. Lingayen,

G.R. No. 64556, June 10, 1988.

19. Valdepeñas v. People, 16 SCRA 871 (1966); People v. Babasa, 97 SCRA 672 (1980).

20. Samilin v. Court of First Instance of Pangasinan, 57 Phil. 298 (1932); Donio-Teves, Et. Al. v. Vamenta, Et Al., 133

SCRA 616 (1984).

21. Rollo, 289.

22. 2 Am. Jur. 2d., 973 citing State v. Loftus, 104 NW 906, 907; Re Smith, 2 Okla. 153, 37 p. 1099; State v. Russell,

90 Iowa 569, 58 NW 915.

23. Recto v. Harden, 100 Phil. 427 (1956).

24. 139 SCRA 139, 140 (1985).

25. The said pronouncements foreshadowed and are adopted in the Family Code of the Philippines (Executive Order

No. 209, as amended by Executive Order No. 227, effective on August 3, 1988), Article 26 whereof provides that"

(w)here 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 likewise have

capacity to remarry under Philippine law." cralaw virtua1aw library

26. U.S. v. Mata, 18 Phil. 490 (1911).

27. Footnote 20, ante.

G.R. No. 152577 - Republic of the Philippines v. Crasus L. Iyoy.

 SECOND DIVISION

[G.R. NO. 152577. September 21, 2005]

REPUBLIC OF THE PHILIPPINES, Petitioners, v. CRASUS L. IYOY, Respondent.

DECISION

CHICO-NAZARIO, J.:

In this Petition for Review on Certiorari under Rule 45 of the Rules of Court, petitioner Republic of
the Philippines, represented by the Office of the Solicitor General, prays for the reversal of the
Decision of the Court of Appeals in CA-G.R. CV No. 62539, dated 30 July 2001, 1 affirming the
Judgment of the Regional Trial Court (RTC) of Cebu City, Branch 22, in Civil Case No. CEB-20077,
dated 30 October 1998,2 declaring the marriage between respondent Crasus L. Iyoy and Fely Ada
Rosal-Iyoy null and void on the basis of Article 36 of the Family Code of the Philippines.

The proceedings before the RTC commenced with the filing of a Complaint 3 for declaration of nullity
of marriage by respondent Crasus on 25 March 1997. According to the said Complaint, respondent
Crasus married Fely on 16 December 1961 at Bradford Memorial Church, Jones Avenue, Cebu City.
As a result of their union, they had five children - Crasus, Jr., Daphne, Debbie, Calvert, and Carlos
- who are now all of legal ages. After the celebration of their marriage, respondent Crasus
discovered that Fely was "hot-tempered, a nagger and extravagant." In 1984, Fely left the
Philippines for the United States of America (U.S.A.), leaving all of their five children, the youngest
then being only six years old, to the care of respondent Crasus. Barely a year after Fely left for the
U.S.A., respondent Crasus received a letter from her requesting that he sign the enclosed divorce
papers; he disregarded the said request. Sometime in 1985, respondent Crasus learned, through
the letters sent by Fely to their children, that Fely got married to an American, with whom she
eventually had a child. In 1987, Fely came back to the Philippines with her American family,
staying at Cebu Plaza Hotel in Cebu City. Respondent Crasus did not bother to talk to Fely because
he was afraid he might not be able to bear the sorrow and the pain she had caused him. Fely
returned to the Philippines several times more: in 1990, for the wedding of their eldest child,
Crasus, Jr.; in 1992, for the brain operation of their fourth child, Calvert; and in 1995, for
unknown reasons. Fely continued to live with her American family in New Jersey, U.S.A. She had
been openly using the surname of her American husband in the Philippines and in the U.S.A. For
the wedding of Crasus, Jr., Fely herself had invitations made in which she was named as "Mrs. Fely
Ada Micklus." At the time the Complaint was filed, it had been 13 years since Fely left and
abandoned respondent Crasus, and there was no more possibility of reconciliation between them.
Respondent Crasus finally alleged in his Complaint that Fely's acts brought danger and dishonor to
the family, and clearly demonstrated her psychological incapacity to perform the essential
obligations of marriage. Such incapacity, being incurable and continuing, constitutes a ground for
declaration of nullity of marriage under Article 36, in relation to Articles 68, 70, and 72, of the
Family Code of the Philippines.

Fely filed her Answer and Counterclaim4 with the RTC on 05 June 1997. She asserted therein that
she was already an American citizen since 1988 and was now married to Stephen Micklus. While
she admitted being previously married to respondent Crasus and having five children with him,
Fely refuted the other allegations made by respondent Crasus in his Complaint. She explained that
she was no more hot-tempered than any normal person, and she may had been indignant at
respondent Crasus on certain occasions but it was because of the latter's drunkenness,
womanizing, and lack of sincere effort to find employment and to contribute to the maintenance of
their household. She could not have been extravagant since the family hardly had enough money
for basic needs. Indeed, Fely left for abroad for financial reasons as respondent Crasus had no job
and what she was then earning as the sole breadwinner in the Philippines was insufficient to
support their family. Although she left all of her children with respondent Crasus, she continued to
provide financial support to them, as well as, to respondent Crasus. Subsequently, Fely was able
to bring her children to the U.S.A., except for one, Calvert, who had to stay behind for medical
reasons. While she did file for divorce from respondent Crasus, she denied having herself sent a
letter to respondent Crasus requesting him to sign the enclosed divorce papers. After securing a
divorce from respondent Crasus, Fely married her American husband and acquired American
citizenship. She argued that her marriage to her American husband was legal because now being
an American citizen, her status shall be governed by the law of her present nationality. Fely also
pointed out that respondent Crasus himself was presently living with another woman who bore him
a child. She also accused respondent Crasus of misusing the amount of P90,000.00 which she
advanced to him to finance the brain operation of their son, Calvert. On the basis of the foregoing,
Fely also prayed that the RTC declare her marriage to respondent Crasus null and void; and that
respondent Crasus be ordered to pay to Fely the P90,000.00 she advanced to him, with interest,
plus, moral and exemplary damages, attorney's fees, and litigation expenses.

After respondent Crasus and Fely had filed their respective Pre-Trial Briefs, 5 the RTC afforded both
parties the opportunity to present their evidence. Petitioner Republic participated in the trial
through the Provincial Prosecutor of Cebu. 6

Respondent Crasus submitted the following pieces of evidence in support of his Complaint: (1) his
own testimony on 08 September 1997, in which he essentially reiterated the allegations in his
Complaint;7 (2) the Certification, dated 13 April 1989, by the Health Department of Cebu City, on
the recording of the Marriage Contract between respondent Crasus and Fely in the Register of
Deeds, such marriage celebration taking place on 16 December 1961; 8 and (3) the invitation to the
wedding of Crasus, Jr., their eldest son, wherein Fely openly used her American husband's
surname, Micklus.9

Fely's counsel filed a Notice,10 and, later on, a Motion,11 to take the deposition of witnesses,
namely, Fely and her children, Crasus, Jr. and Daphne, upon written interrogatories, before the
consular officers of the Philippines in New York and California, U.S.A, where the said witnesses
reside. Despite the Orders12 and Commissions13 issued by the RTC to the Philippine Consuls of New
York and California, U.S.A., to take the depositions of the witnesses upon written interrogatories,
not a single deposition was ever submitted to the RTC. Taking into account that it had been over a
year since respondent Crasus had presented his evidence and that Fely failed to exert effort to
have the case progress, the RTC issued an Order, dated 05 October 1998, 14considering Fely to
have waived her right to present her evidence. The case was thus deemed submitted for decision.

Not long after, on 30 October 1998, the RTC promulgated its Judgment declaring the marriage of
respondent Crasus and Fely null and void ab initio, on the basis of the following findings'

The ground bearing defendant's psychological incapacity deserves a reasonable consideration. As

observed, plaintiff's testimony is decidedly credible. The Court finds that defendant had indeed
exhibited unmistakable signs of psychological incapacity to comply with her marital duties such as
striving for family unity, observing fidelity, mutual love, respect, help and support. From the
evidence presented, plaintiff adequately established that the defendant practically abandoned him.
She obtained a divorce decree in the United States of America and married another man and has
establish [sic] another family of her own. Plaintiff is in an anomalous situation, wherein he is
married to a wife who is already married to another man in another country.

Defendant's intolerable traits may not have been apparent or manifest before the marriage, the
FAMILY CODE nonetheless allows the annulment of the marriage provided that these were
eventually manifested after the wedding. It appears to be the case in this instance.

Certainly defendant's posture being an irresponsible wife erringly reveals her very low regard for
that sacred and inviolable institution of marriage which is the foundation of human society
throughout the civilized world. It is quite evident that the defendant is bereft of the mind, will and
heart to comply with her marital obligations, such incapacity was already there at the time of the
marriage in question is shown by defendant's own attitude towards her marriage to plaintiff.

In sum, the ground invoked by plaintiff which is defendant's psychological incapacity to comply
with the essential marital obligations which already existed at the time of the marriage in question
has been satisfactorily proven. The evidence in herein case establishes the irresponsibility of
defendant Fely Ada Rosal Iyoy, firmly.

Going over plaintiff's testimony which is decidedly credible, the Court finds that the defendant had
indeed exhibited unmistakable signs of such psychological incapacity to comply with her marital
obligations. These are her excessive disposition to material things over and above the marital
stability. That such incapacity was already there at the time of the marriage in question is shown
by defendant's own attitude towards her marriage to plaintiff. And for these reasons there is a
legal ground to declare the marriage of plaintiff Crasus L. Iyoy and defendant Fely Ada Rosal Iyoy
null and void ab initio.15

Petitioner Republic, believing that the afore-quoted Judgment of the RTC was contrary to law and
evidence, filed an appeal with the Court of Appeals. The appellate court, though, in its Decision,
dated 30 July 2001, affirmed the appealed Judgment of the RTC, finding no reversible error
therein. It even offered additional ratiocination for declaring the marriage between respondent
Crasus and Fely null and void, to wit'

Defendant secured a divorce from plaintiff-appellee abroad, has remarried, and is now
permanently residing in the United States. Plaintiff-appellee categorically stated this as one of his
reasons for seeking the declaration of nullity of their marriage'
Article 26 of the Family Code 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 LIKEWISE HAVE
CAPACITY TO REMARRY UNDER PHILIPPINE LAW."

The rationale behind the second paragraph of the above-quoted provision is to avoid the absurd
and unjust situation of a Filipino citizen still being married to his or her alien spouse, although the
latter is no longer married to the Filipino spouse because he or she has obtained a divorce abroad.
In the case at bench, the defendant has undoubtedly acquired her American husband's citizenship
and thus has become an alien as well. This Court cannot see why the benefits of Art. 26
aforequoted can not be extended to a Filipino citizen whose spouse eventually embraces another
citizenship and thus becomes herself an alien.

It would be the height of unfairness if, under these circumstances, plaintiff would still be
considered as married to defendant, given her total incapacity to honor her marital covenants to
the former. To condemn plaintiff to remain shackled in a marriage that in truth and in fact does
not exist and to remain married to a spouse who is incapacitated to discharge essential marital
covenants, is verily to condemn him to a perpetual disadvantage which this Court finds abhorrent
and will not countenance. Justice dictates that plaintiff be given relief by affirming the trial court's
declaration of the nullity of the marriage of the parties. 16

After the Court of Appeals, in a Resolution, dated 08 March 2002, 17 denied its Motion for
Reconsideration, petitioner Republic filed the instant Petition before this Court, based on the
following arguments/grounds'

I. Abandonment by and sexual infidelity of respondent's wife do not per se constitute psychological

incapacity.

II. The Court of Appeals has decided questions of substance not in accord with law and
jurisprudence considering that the Court of Appeals committed serious errors of law in ruling that
Article 26, paragraph 2 of the Family Code is inapplicable to the case at bar. 18

In his Comment19 to the Petition, respondent Crasus maintained that Fely's psychological incapacity
was clearly established after a full-blown trial, and that paragraph 2 of Article 26 of the Family
Code of the Philippines was indeed applicable to the marriage of respondent Crasus and Fely,
because the latter had already become an American citizen. He further questioned the personality
of petitioner Republic, represented by the Office of the Solicitor General, to institute the instant
Petition, because Article 48 of the Family Code of the Philippines authorizes the prosecuting
attorney or fiscal assigned to the trial court, not the Solicitor General, to intervene on behalf of the
State, in proceedings for annulment and declaration of nullity of marriages.
After having reviewed the records of this case and the applicable laws and jurisprudence, this
Court finds the instant Petition to be meritorious.

The totality of evidence presented during trial is insufficient to support the finding of psychological
incapacity of Fely.

Article 36, concededly one of the more controversial provisions of the Family Code of the
Philippines, reads'

ART. 36. A marriage contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with the essential marital obligations of marriage, shall
likewise be void even if such incapacity becomes manifest only after its solemnization.

Issues most commonly arise as to what constitutes psychological incapacity. In a series of cases,
this Court laid down guidelines for determining its existence.

In Santos v. Court of Appeals,20 the term psychological incapacity was defined, thus'

". . . [P]sychological incapacity" should refer to no less than a mental (not physical) incapacity that
causes a party to be truly cognitive of the basic marital covenants that concomitantly must be
assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the
Family Code, include their mutual obligations to live together, observe love, respect and fidelity
and render help and support. There is hardly any doubt that the intendment of the law has been to
confine the meaning of "psychological incapacity" to the most serious cases of personality
disorders clearly demonstrative of an utter insensitivity or inability to give meaning and
significance to the marriage. This psychological condition must exist at the time the marriage is
celebrated'21

The psychological incapacity must be characterized by'

(a) Gravity - It must be grave or serious such that the party would be incapable of carrying out the
ordinary duties required in a marriage;

(b) Juridical Antecedence - It must be rooted in the history of the party antedating the marriage,
although the overt manifestations may emerge only after the marriage; and cralawlibrary

(c) Incurability - It must be incurable or, even if it were otherwise, the cure would be beyond the
means of the party involved.22

More definitive guidelines in the interpretation and application of Article 36 of the Family Code of
the Philippines were handed down by this Court in Republic v. Court of Appeals and
Molina,23 which, although quite lengthy, by its significance, deserves to be reproduced below'

(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt
should be resolved in favor of the existence and continuation of the marriage and against its
dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the
validity of marriage and unity of the family. Thus, our Constitution devotes an entire Article on the
Family, recognizing it "as the foundation of the nation." It decrees marriage as legally "inviolable,"
thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are
to be "protected" by the state.

The Family Code echoes this constitutional edict on marriage and the family and emphasizes their
permanence, inviolability and solidarity.

(2) The root cause of the psychological incapacity must be (a) medically or clinically identified, (b)
alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the
decision. Article 36 of the Family Code requires that the incapacity must be psychological - not
physical, although its manifestations and/or symptoms may be physical. The evidence must
convince the court that the parties, or one of them, was mentally or psychically ill to such an
extent that the person could not have known the obligations he was assuming, or knowing them,
could not have given valid assumption thereof. Although no example of such incapacity need be
given here so as not to limit the application of the provision under the principle ofejusdem generis,
nevertheless such root cause must be identified as a psychological illness and its incapacitating
nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical
psychologists.

(3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage.
The evidence must show that the illness was existing when the parties exchanged their "I do's."
The manifestation of the illness need not be perceivable at such time, but the illness itself must
have attached at such moment, or prior thereto.

(4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such
incurability may be absolute or even relative only in regard to the other spouse, not necessarily
absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the
assumption of marriage obligations, not necessarily to those not related to marriage, like the
exercise of a profession or employment in a job'

(5) Such illness must be grave enough to bring about the disability of the party to assume the
essential obligations of marriage. Thus, "mild characteriological peculiarities, mood changes,
occasional emotional outbursts" cannot be accepted as root causes. The illness must be shown as
downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other
words, there is a natal or supervening disabling factor in the person, an adverse integral element
in the personality structure that effectively incapacitates the person from really accepting and
thereby complying with the obligations essential to marriage.

(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family
Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in
regard to parents and their children. Such non-complied marital obligation(s) must also be stated
in the petition, proven by evidence and included in the text of the decision.

(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in
the Philippines, while not controlling or decisive, should be given great respect by our courts'

(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear
as counsel for the state. No decision shall be handed down unless the Solicitor General issues a
certification, which will be quoted in the decision, briefly stating therein his reasons for his
agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the
prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the
date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge
the equivalent function of the defensor vinculi contemplated under Canon 1095.24

A later case, Marcos v. Marcos,25 further clarified that there is no requirement that the

defendant/respondent spouse should be personally examined by a physician or psychologist as a
condition sine qua non for the declaration of nullity of marriage based on psychological incapacity.
Such psychological incapacity, however, must be established by the totality of the evidence
presented during the trial.

Using the guidelines established by the afore-mentioned jurisprudence, this Court finds that the
totality of evidence presented by respondent Crasus failed miserably to establish the alleged
psychological incapacity of his wife Fely; therefore, there is no basis for declaring their marriage
null and void under Article 36 of the Family Code of the Philippines.

The only substantial evidence presented by respondent Crasus before the RTC was his testimony,
which can be easily put into question for being self-serving, in the absence of any other
corroborating evidence. He submitted only two other pieces of evidence: (1) the Certification on
the recording with the Register of Deeds of the Marriage Contract between respondent Crasus and
Fely, such marriage being celebrated on 16 December 1961; and (2) the invitation to the wedding
of Crasus, Jr., their eldest son, in which Fely used her American husband's surname. Even
considering the admissions made by Fely herself in her Answer to respondent Crasus's Complaint
filed with the RTC, the evidence is not enough to convince this Court that Fely had such a grave
mental illness that prevented her from assuming the essential obligations of marriage.

It is worthy to emphasize that Article 36 of the Family Code of the Philippines contemplates
downright incapacity or inability to take cognizance of and to assume the basic marital obligations;
not a mere refusal, neglect or difficulty, much less, ill will, on the part of the errant
spouse.26 Irreconcilable differences, conflicting personalities, emotional immaturity and
irresponsibility, physical abuse, habitual alcoholism, sexual infidelity or perversion, and
abandonment, by themselves, also do not warrant a finding of psychological incapacity under the
said Article.27

As has already been stressed by this Court in previous cases, Article 36 "is not to be confused with
a divorce law that cuts the marital bond at the time the causes therefore manifest themselves. It
refers to a serious psychological illness afflicting a party even before the celebration of marriage. It
is a malady so grave and so permanent as to deprive one of awareness of the duties and
responsibilities of the matrimonial bond one is about to assume." 28

The evidence may have proven that Fely committed acts that hurt and embarrassed respondent
Crasus and the rest of the family. Her hot-temper, nagging, and extravagance; her abandonment
of respondent Crasus; her marriage to an American; and even her flaunting of her American family
and her American surname, may indeed be manifestations of her alleged incapacity to comply with
her marital obligations; nonetheless, the root cause for such was not identified. If the root cause of
the incapacity was not identified, then it cannot be satisfactorily established as a psychological or
mental defect that is serious or grave; neither could it be proven to be in existence at the time of
celebration of the marriage; nor that it is incurable. While the personal examination of Fely by a
psychiatrist or psychologist is no longer mandatory for the declaration of nullity of their marriage
under Article 36 of the Family Code of the Philippines, by virtue of this Court's ruling in Marcos v.
Marcos,29 respondent Crasus must still have complied with the requirement laid down in Republic
v. Court of Appeals and Molina30 that the root cause of the incapacity be identified as a
psychological illness and that its incapacitating nature be fully explained.

In any case, any doubt shall be resolved in favor of the validity of the marriage. 31 No less than the
Constitution of 1987 sets the policy to protect and strengthen the family as the basic social
institution and marriage as the foundation of the family. 32

II

Article 26, paragraph 2 of the Family Code of the Philippines is not applicable to the case at bar.

According to Article 26, paragraph 2 of the Family Code of the Philippines'

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 likewise have capacity to remarry under Philippine law.

As it is worded, Article 26, paragraph 2, refers to a special situation wherein one of the couple
getting married is a Filipino citizen and the other a foreigner at the time the marriage was
celebrated. By its plain and literal interpretation, the said provision cannot be applied to
the case of respondent Crasus and his wife Fely because at the time Fely obtained her
divorce, she was still a Filipino citizen. Although the exact date was not established, Fely
herself admitted in her Answer filed before the RTC that she obtained a divorce from respondent
Crasus sometime after she left for the United States in 1984, after which she married her
American husband in 1985. In the same Answer, she alleged that she had been an American
citizen since 1988. At the time she filed for divorce, Fely was still a Filipino citizen, and
pursuant to the nationality principle embodied in Article 15 of the Civil Code of the Philippines, she
was still bound by Philippine laws on family rights and duties, status, condition, and legal capacity,
even when she was already living abroad. Philippine laws, then and even until now, do not allow
and recognize divorce between Filipino spouses. Thus, Fely could not have validly obtained a
divorce from respondent Crasus.

III

The Solicitor General is authorized to intervene, on behalf of the Republic, in proceedings for
annulment and declaration of nullity of marriages.

Invoking Article 48 of the Family Code of the Philippines, respondent Crasus argued that only the
prosecuting attorney or fiscal assigned to the RTC may intervene on behalf of the State in
proceedings for annulment or declaration of nullity of marriages; hence, the Office of the Solicitor
General had no personality to file the instant Petition on behalf of the State. Article 48 provides'
ART. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall
order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take
steps to prevent collusion between the parties and to take care that the evidence is not fabricated
or suppressed.

That Article 48 does not expressly mention the Solicitor General does not bar him or his Office
from intervening in proceedings for annulment or declaration of nullity of marriages. Executive
Order No. 292, otherwise known as the Administrative Code of 1987, appoints the Solicitor
General as the principal law officer and legal defender of the Government. 33 His Office is tasked to
represent the Government of the Philippines, its agencies and instrumentalities and its officials and
agents in any litigation, proceeding, investigation or matter requiring the services of lawyers. The
Office of the Solicitor General shall constitute the law office of the Government and, as such, shall
discharge duties requiring the services of lawyers. 34

The intent of Article 48 of the Family Code of the Philippines is to ensure that the interest of the
State is represented and protected in proceedings for annulment and declaration of nullity of
marriages by preventing collusion between the parties, or the fabrication or suppression of
evidence; and, bearing in mind that the Solicitor General is the principal law officer and legal
defender of the land, then his intervention in such proceedings could only serve and contribute to
the realization of such intent, rather than thwart it.

Furthermore, the general rule is that only the Solicitor General is authorized to bring or defend
actions on behalf of the People or the Republic of the Philippines once the case is brought before
this Court or the Court of Appeals.35 While it is the prosecuting attorney or fiscal who actively
participates, on behalf of the State, in a proceeding for annulment or declaration of nullity of
marriage before the RTC, the Office of the Solicitor General takes over when the case is elevated
to the Court of Appeals or this Court. Since it shall be eventually responsible for taking the case to
the appellate courts when circumstances demand, then it is only reasonable and practical that
even while the proceeding is still being held before the RTC, the Office of the Solicitor General can
already exercise supervision and control over the conduct of the prosecuting attorney or fiscal
therein to better guarantee the protection of the interests of the State.

In fact, this Court had already recognized and affirmed the role of the Solicitor General in several
cases for annulment and declaration of nullity of marriages that were appealed before it,
summarized as follows in the case of Ancheta v. Ancheta36'

In the case of Republic v. Court of Appeals [268 SCRA 198 (1997)], this Court laid down the
guidelines in the interpretation and application of Art. 48 of the Family Code, one of which
concerns the role of the prosecuting attorney or fiscal and the Solicitor General to appear as
counsel for the State:

(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear
as counsel for the state. No decision shall be handed down unless the Solicitor General issues a
certification, which will be quoted in the decision, briefly stating therein his reasons for his
agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the
prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the
date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge
the equivalent function of the defensor vinculi contemplated under Canon 1095. [Id., at 213]

This Court in the case of Malcampo-Sin v. Sin [355 SCRA 285 (2001)] reiterated its
pronouncement in Republic v. Court of Appeals [Supra.] regarding the role of the prosecuting
attorney or fiscal and the Solicitor General to appear as counsel for the State' 37

Finally, the issuance of this Court of the Rule on Declaration of Absolute Nullity of Void Marriages
and Annulment of Voidable Marriages,38 which became effective on 15 March 2003, should dispel
any other doubts of respondent Crasus as to the authority of the Solicitor General to file the
instant Petition on behalf of the State. The Rule recognizes the authority of the Solicitor General to
intervene and take part in the proceedings for annulment and declaration of nullity of marriages
before the RTC and on appeal to higher courts. The pertinent provisions of the said Rule are
reproduced below'

Sec. 5. Contents and form of petition. -

(4) It shall be filed in six copies. The petitioner shall serve a copy of the petition on the Office of
the Solicitor General and the Office of the City or Provincial Prosecutor, within five days from the
date of its filing and submit to the court proof of such service within the same period.

Sec. 18. Memoranda. - The court may require the parties and the public prosecutor, in
consultation with the Office of the Solicitor General, to file their respective memoranda in support
of their claims within fifteen days from the date the trial is terminated. It may require the Office of
the Solicitor General to file its own memorandum if the case is of significant interest to the State.
No other pleadings or papers may be submitted without leave of court. After the lapse of the
period herein provided, the case will be considered submitted for decision, with or without the
memoranda.

Sec. 19. Decision. -

(2) The parties, including the Solicitor General and the public prosecutor, shall be served with
copies of the decision personally or by registered mail. If the respondent summoned by publication
failed to appear in the action, the dispositive part of the decision shall be published once in a
newspaper of general circulation.

(3) The decision becomes final upon the expiration of fifteen days from notice to the parties. Entry
of judgment shall be made if no motion for reconsideration or new trial, or appeal is filed by any of
the parties, the public prosecutor, or the Solicitor General.

Sec. 20. Appeal. -

(2) Notice of Appeal. - An aggrieved party or the Solicitor General may appeal from the decision by
filing a Notice of Appeal within fifteen days from notice of denial of the motion for reconsideration
or new trial. The appellant shall serve a copy of the notice of appeal on the adverse parties.

Given the foregoing, this Court arrives at a conclusion contrary to those of the RTC and the Court
of Appeals, and sustains the validity and existence of the marriage between respondent Crasus
and Fely. At most, Fely's abandonment, sexual infidelity, and bigamy, give respondent Crasus
grounds to file for legal separation under Article 55 of the Family Code of the Philippines, but not
for declaration of nullity of marriage under Article 36 of the same Code. While this Court
commiserates with respondent Crasus for being continuously shackled to what is now a hopeless
and loveless marriage, this is one of those situations where neither law nor society can provide the
specific answer to every individual problem.39

WHEREFORE, the Petition is GRANTED and the assailed Decision of the Court of Appeals in CA-G.R.
CV No. 62539, dated 30 July 2001, affirming the Judgment of the RTC of Cebu City, Branch 22, in
Civil Case No. CEB-20077, dated 30 October 1998, is REVERSED and SET ASIDE.

The marriage of respondent Crasus L. Iyoy and Fely Ada Rosal-Iyoy remains valid and subsisting.

SO ORDERED.

Puno, J., (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

Endnotes:

 Penned by Associate Justice Portia Aliño-Hormachuelos with Acting Presiding Justice Cancio C.
1

Garcia and Associate Justice Mercedes Gozo-Dadole, concurring; Rollo, pp. 23-31.

 Penned by Judge Pampio A. Abarintos, Id., pp. 63-66.

2

 Records, pp. 1-3.

3

 Id., pp. 8-13.

4

 Id., pp. 25-29, 30-32.

5

 Id., 23-24.
6

 TSN, 08 September 1997.

7

 Supra, note 6, p. 36.
8

 Id., p. 37.
9

10
 Id., pp. 40-45.

11
 Id., pp. 48-49.

12
 Penned by Judge Pampio A. Abarintos, dated 07 November 1997 (Id., p. 51) and 01 August

1998 (Id., p. 58).

  Id., p. 52.
13

 Id., p. 61.
14

 Supra, note 2, pp. 65-66.

15

 Supra, note 1, pp. 28-30.

16

 Penned by Associate Justice Portia Alino-Hormachuelos with Associate Justices Cancio C. Garcia
17

and Mercedes Gozo-Dadole, concurring; Rollo, p. 32.

 Id., p. 13.
18

 Id., pp. 36-41.

19

 G.R. No. 112019, 04 January 1995, 240 SCRA 20.

20

 Id., p. 34.
21

 Id., pp. 33-34.

22

 G.R. No. 108763, 13 February 1997, 268 SCRA 198.

23

 Id., pp. 209-213.

24

 G.R. No. 136490, 19 October 2000, 343 SCRA 755.

25

 Republic v. Court of Appeals and Molina, supra, note 24, p. 211.

26

 Carating-Siayngco v. Siayngco, G.R. No. 158896, 27 October 2004, 441 SCRA 422; Dedel v.
27

Court of Appeals and Corpuz-Dedel, G.R. No. 151867, 29 January 2004, 421 SCRA 461; Guillen-

Pesca v. Pesca, G.R. No. 136921, 17 April 2001, 356 SCRA 588; Marcos v. Marcos, supra, note 25;

Hernandez v. Court of Appeals, G.R. No. 126010, 08 December 1999, 320 SCRA 76.

 Marcos v. Marcos, supra, note 25, p. 765.

28

 Supra, note 25.

29

 Supra, note 23.

30

 Carating-Siayngco v. Siayngco, supra, note 27; Republic v. Dagdag, G.R. No. 109975, 09

31

February 20001, 351 SCRA 425; Marcos v. Marcos, supra, note 25; Hernandez v. Court of

Appeals, supra, note 27; Republic v. Court of Appeals and Molina, supra, note 23.
  Sections 1 and 2, Article XV of the Philippine Constitution of 1987.
32

 Book IV, Title III, Chapter 12, Section 34.

33

 Id., Section 35.

34

 Metropolitan Bank and Trust Company v. Tonda, G.R. No. 134436, 16 August 2000, 338 SCRA
35

254, 265.

 G.R. No. 145370, 04 March 2004, 424 SCRA 725.

36

 Id., pp. 738-739.

37

 A.M. No. 02-11-10-SC.

38

 Carating-Siayngco v. Siayngco, supra, note 27, p. 439; Dedel v. Court of Appeals and Corpuz-
39

Dedel, supra, note 27, p. 467; Santos v. Court of Appeals, supra, note 20, p. 36.

FIRST DIVISION

[G.R. No. 133778. March 14, 2000.]

ENGRACE NIÑAL for Herself and as Guardian ad Litem of the minors BABYLINE NIÑAL,
INGRID NIÑAL, ARCHIE NIÑAL & PEPITO NIÑAL, JR., Petitioners, v. 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. chanrobles.com : law library

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: chanrob1es virtual 1aw library

(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. 1 

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. 2 Hence, this petition for review with this Court grounded on a pure question of law.

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. 3
However, upon motion of petitioners, this Court reconsidered the dismissal and reinstated the
petition for review. 4 

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. 5 A valid marriage license is a requisite of marriage under
Article 53 of the Civil Code, 6 the absence of which renders the marriage void ab initio pursuant to
Article 80(3) 7 in relation to Article 58. 8 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. 9 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" 10 Specifically, the Constitution considers marriage as an
"inviolable social institution," and is the foundation of family life which shall be protected by the
State. 11 This is why the Family Code considers marriage as "a special contract of permanent
union" 12 and case law considers it not just an adventure but a lifetime commitment." 13 

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, 14 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. 15 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. chanrobles.com.ph:red

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." 16 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. 17 The Civil
Code provides: chanrob1es virtual 1aw library

Article 63: ". . . . This notice shall request all persons having knowledge of any impediment to the
marriage to advice the local civil registrar thereof. . . ." cralaw virtua1aw library

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. . . ." cralaw virtua1aw library

This is reiterated in the Family Code thus: chanrob1es virtual 1aw library

Article 17 provides in part: ". . . This notice shall request all persons having knowledge of any
impediment to the marriage to advise the local civil registrar thereof . . . ." cralaw virtua1aw library

Article 18 reads in part: ". . . 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. . . ."  chanroblesvirtual|awlibrary

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. 19 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" .

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 20 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 21 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. 22 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, 23 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.

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. chanroblesvirtuallawlibrary

Jurisprudence under the Civil Code states that no judicial decree is necessary in order to establish
the nullity of a marriage. 24 "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." 25 "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. 26 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 27 and such absolute nullity can be based only on a final judgment to that
effect. 28 For the same reason, the law makes either the action or defense for the declaration of
absolute nullity of marriage imprescriptible. 29 Corollarily, if the death of either party would
extinguish the cause of action or the ground for defense, then the same cannot be considered
imprescriptible.

However, other than for purposes of remarriage, no judicial action is necessary to declare a
marriage an absolute nullity. For other purposes, such as but not limited to determination of
heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime,
or a criminal case for that matter, the court may pass upon the validity of marriage even in a suit
not directly instituted to question the same so long as it is essential to the determination of the
case. This is without prejudice to any issue that may arise in the case. When such need arises, a
final judgment of declaration of nullity is necessary even if the purpose is other than to remarry.
The clause "on the basis of a final judgment declaring such previous marriage void" in Article 40 of
the Family Code connotes that such final judgment need not be obtained only for purpose of
remarriage.

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. chanrobles virtual lawlibrary

SO ORDERED.

Davide, Jr., C.J., Puno and Kapunan, JJ., concur.

Pardo, J., on official business abroad.

Endnotes:

1. The dispositive portion of the Order dated March 27, 1998 issued by Judge Ferdinand J. Marcos of Regional Trial

Court (RTC) - Branch 59, Toledo City, reads: "WHEREFORE, premises considered, defendant’s motion to dismiss is

hereby granted and this instant case is hereby ordered dismissed without costs." (p. 6; Rollo, p. 21).

2. Order, p. 4; Rollo, p. 19.

3. Minute Resolution dated July 13, 1998; Rollo, p. 39.

4. Minute Resolution dated October 7, 1998; Rollo, p. 50.

5. Tamano v. Ortiz, 291 SCRA 584 (1998).

6. Now Article 3. Family Code. Art. 53. No marriage shall be solemnized unless all the requisites are complied with: chanrob1es virtual 1aw

library

(1) Legal capacity of the contracting parties, their consent, freely given;

(2) Authority of the person performing the marriage; and

(3) A marriage license, except in a marriage of exceptional character.

7. Now Article 4. Family Code. Art. 80. The following marriages shall be void from the beginning: chanrob1es virtual 1aw library

x              x              x

(3) Those solemnized without a marriage license, save marriages of exceptional character

x              x              x

8. Art 58. Save marriages of an exceptional character authorized in Chapter 2 of this Title but not those under article

75, no marriage shall be solemnized without a license first being issued by the local civil registrar of the municipality

where either contracting party habitually resides.

9. Perido v. Perido, 63 SCRA 97 (1975).

10. Section 12, Article II, 1987 Constitution; Hernandez v. CA, G.R. No. 126010, December 8, 1999; See also Tuazon

v. CA, 256 SCRA 158 (1996).

11. Section 2, Article XV (The Family), 1987 Constitution.

12. Article 1. Family Code provides: "Marriage is a special contract of permanent union between a man and a woman

entered into in accordance with law for the establishment of conjugal or family life . . .

13. Santos v. CA, 58 SCAD 17 (1995); 310 Phil. 21, 41 (1995).

14. Now Article 34. Family Code. Art. 76. No marriage license shall be necessary when a man and a woman who have

attained the age of majority and who, being unmarried, have lived together as husband and wife for at least five

years, desire to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any

person authorized by law to administer oaths. The official, priest or minister who solemnized the marriage shall also

state in an affidavit that he took steps to ascertain the ages and other qualifications of the contracting parties and that

he found no legal impediment to the marriage.

15. Report of the Code Commission, p. 80.

16. Rollo, p. 29.

17. Articles 63 and 64, Civil Code; Articles 17 and 18, Family Code.

18. Article 83, Civil Code provides "Any marriage subsequently contracted by any person during the lifetime of the first

spouse of such person with any person other than such first spouse shall be illegal and void from its performance,

unless: chanrob1es virtual 1aw library

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

(2) the first spouse had been absent for seven consecutive years . . . ." cralaw virtua1aw library

Article 41 of the Family Code reads: "A marriage contracted by any person during the subsistence of a previous

marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been

absent for four consecutive years . . ." cralaw virtua1aw library

19. Arts. 333 and 334, Revised Penal Code.

20. Art. 17. The action for annulment of marriage must be filed by the following persons and within the periods

indicated herein: chanrob1es virtual 1aw library

(1) For causes mentioned in number 1 of Article 45 by the party whose parent or guardian did not give his or her

consent within five years after attaining the age of twenty-one, or by the parent or guardian or person having legal

charge of the minor, at any time before such party has reached the age of twenty-one;

(2) For causes mentioned in number 2 of Article 45, by the sane spouse, who had no knowledge of the other’s

insanity, or by any relative or guardian or person having legal charge of the insane, at any time before the death of

either party, or by the insane spouse during a lucid interval or after regaining sanity;

(3) For causes mentioned in number 3 of Article 45 by the injured party, within five years after the discovery of the

fraud;

(4) For causes mentioned in number 4 of Article 45 by the injured party, within five years from the time the force,

intimidation or undue influence disappeared or ceased;

For causes mentioned in numbers 5 and 6 of Article 45, by the injured party, within five years after the marriage.

21. Suntay v. Cojuanco-Suntay, 300 SCRA 760 (1998); People v. Retirement Board, 272 III, App. 59 cited in I

Tolentino, Civil Code, 1990 ed. p. 271.

22. In re Conza’s Estate, 176 III. 192, Miller v. Miller, 175 Cal. 797, 167 Pac 394 cited in I Tolentino, Civil Code, 1990

ed., p. 271.

23. Article 148-149, Family Code; Article 144, Civil Code.

24. Odayat v. Amante, 77 SCRA 338 (1977); Weigel v. Sempio-Dy, 143 SCRA 499 (1986); People v. Mendoza, 95 Phil.

845 (1954); 50 O.G. (10) 4767 cited in People v. Aragon, 100 Phil. 1033 (1957); 53 O.G. 3749.

25. 35 Am. Jur. 219-220.

26. 18 RCL 446-7; 35 Am. Jur. 221.

27. Apiag v. Cantero, 335 Phil. 511 (1997); 268 SCRA 47 (1997); Atienza v. Judge Brilliantes, Jr., 60 SCAD 119; 312

Phil. 939 (1995).

28. Domingo v. CA, 226 SCRA 572 (1993).

29. Article 39, Family Code as amended by E.O. 209 and 227 s. 1987 and further amended by R.A. No. 8533 dated

February 23, 1998.