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LEGAL SEPARATION DIGESTS A. Concept and Historical background BENEDICTO V.

DELA RAMA Plaintiff and appellee: Agueda Benedicto Defendant and Appellant: Esteban dela Rama Nature of the case: appeal from a judgment of CFI of Iloilo Ponente: Willard, J. Issue: wON the CFI now have jurisdiction of divorce cases and if they have, on what law is it based?

Facts: 1) 2)

This is an action for divorce on the ground of abandonment and adultery The answer charged the plaintiff with adultery, denied the adultery imputed to defendant, and asked for divorce CFI: granted the divorce to plaintiff and 81, 042. 76 pesos as her share of the conjugal property- court assumed that the provisions of the civil code relating to divorce contained in title 4 of book1 are still in force 3) Married in July 1891 to august 1892happily together 4) The defendant suddenly without any previous warning took his wife to the house of her parents, left her there and never lived with her afterwards 5) The plaintiff: complains that husband committed adultery with one GREGORIA BERMEJO in 1892 6) Other two charges relate to 1899 and 1901 insufficient evidence ARGUMENTS; a) The power of the gov gen, without such order to suspend the operation of the code b) The order of suspension is inoperative did not mention the book of this code in which the suspended titles 4 and 1q2 were to be found c) Title 4: relates to marriage and divorce , title 12: to civil registry (book 1) SC: this is an error Ratio: 1) July 31, 1889, the Civil Code as it existed in the peninsula was extended to the phils and took effect on dec 8, 1889

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On dec 31, an order was published which states that titles 4 and 12 of the CC are suspended in the archipelago- no decree can be found published in the Gaceta The history of Law of Civil Marriage of 1870 is well known. As a consequence of the religious liberty proclaimed in the consti of 1869, the whole of the law was in force in the peninsula. But that basis was wanting in these islands, and prior to the promulgation of the CC in 1889, no part of the law was in force here, except arts 44 to 78 which were promulgated in 1883 It is claimed that if these are suspended, the only marriages in the islands would be canonical and the only courts competent to declare a divorce would be ecclesiastical

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There can be no doubt that the order of suspension refers to titles 4 and 12 f book 1 and it has always been understoodfollows that arts 42-107 of the CC were not in force here 6) The canon law had not as such any binding force outside the church-however, any part of the canon law which by proper action of the civil authorities had become a civil law stood upon same footing as any other law in spain 7) COUNCIL OF TRENTthese decrees have in spain the force of a civil law 8) It may be doubted if these decrees, even if considered as extended to the phils and in force here, furnish any aid in the solution of the question 9) CANONISTS: declare adultery to be a ground for divorcehowever, the causes for divorce are nowhere distinctly stated therein 10) The laws of the church which do state what these causes are have not the force of civil laws 11) The DECRETAL LAW abolishing in the peninsula the special jurisdictions was extended to the phils

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DECRETAL LAW STATES: ecclesiastical courts shall continue to take cognizance of matrimonial and ellemosynary causes and of ecclesiastical offenses in accordance with provisions of canon law and have jurisdiction over causes of divorce and annulment of marriage as provided by the Council of Trentbut incidents with respect to the deposit of a married woman, alimony, suit money and other temporal affairs shall pertain to ordinary courts PARTIDAS: contain provisions relating to the subject of divorcestates that when spouses are separated by law, it is not then considered that man separates them, but the written law and the impediment existing between them Two forms of separation with two reasons: one is religion and the other the sin of fornication Religion if on desires to take holy orders and the other should grant permissionwith authority of the church Divorce due to adultery or fornicationbrought before the judge of the holy church, includes spiritual fornication In here the spouses are separated but the marriage still subsists, neither one of them can contract second marriage at any time excepting in the case of separation granted by reason of adultery in which case the surviving spouse may remarry after the death of the other

18) No other person but the spouses themselves can make an accusation for such a cause and it ought be made before the bishop or the ecclesiastical judge either by the parties themselves of their attorneys 19) This divorce did not annul the marriage 20) That either spouse has been guilty of adultery is a defense to his or her suit so is the fact that she has pardoned herif after a divorce has been granted to the husband, he commits adultery, there is a waiver of the judgment ISSUE: Were these provisions of the partidas in force in the island prior to 1889? The general rule was that laws of the Peninsula did not rule in the colonies unless they were expressly extended to them, as to certain laws, this result was, however, accomplished in another way - RECOPILACION de lasLEYES de INDIASprovision thatand as to all matters not provided for by the laws of this compilations, the laws of the compilations and the PARTIDAS of tese kingdoms of the Castile shall be followed in the decisions of causes in accordance with the following law By the operation of this law (TORO), first enacted in 1530, those laws of the PARTIDAS herein before referred to relating to divorce, upon the discovery and settlement of the Phils became at once effective thereinthey have remained in force since all civil laws of the state as distinguished from laws of the church Being in force on august 13, 1898they continued to be in force with other laws of a similar nature The PARTIDAS recognized adultery as a ground for divorcetherefore according to the civil as well as canonical law in force in august 13, 1898the commission of the offense gave the injured party the right to a divorce That provision of the substantive civil law was not repealed by the change of sovereignty The complete separation of the church and the state under the American govt while it changed the tribunal in which this right should be enforced, could not affect the right itself The fact that ecclesiastical courts no longer exercise such power is not important The jurisdiction formerly possessed by them is now vested in CFI by virtue of ACT no. 136 The RESULT: A) the courts of CFI have jurisdiction to entertain suit for divorce B) that the only ground therefore is adultery C) that the action on that ground can be maintained by husband and D) that the decree does not dissolve the marriage bond DECISION: the CFI of Iloilo therefore, committed no error in assuming the jurisdiction of this case The adultery of the defendant was fully proved - Adultery of the plaintiff is however, plainly and manifestly against the weight of the evidence (PROOF letter) Letter: confession of guilt? MAIN ISSUE: adultery 1) The lack of evidence destroys the theory of the court below and of the appellee that the defendant expelled the plaintiff from his house because he was tired of her and desired the company of other women 2) Not adequate to explain the sudden termination of their marital relations 3) Testimony of the defendant correctly explained the theoryhe stated that on his return from an inspection of one his estates his wifes maid gave him a letter in the handwriting of his wife and directed to her lover, a Spanish corporal of the civil guard, named ZABAL 4) She admitted the genuineness of the letter, fell upon her knees and implored him to pardon herthat same day he took her to the home of her parents, told what had occurred and left her there 5) If The plaintiff is guilty the defendant has condoned the offenseno factual evidence on this claim PRINCIPLE: a) Law 6 , title 9 partida 4, the wife can defeat the husbands suit for divorce by proving that he has pardoned her but no laws in the partidas which say that the effect of the pardon would be so farreaching as to entitle her to a divorce against him in a case like this present one CONCLUSION: Neither of the party is entitled to a divorceboth committed adultery JUDGMENT REVERSED COOPER, J. DISSENTING Immaterial which law governs , since under each causes for divorce are substantially the same, one of which is adultery Higher court not to review the findings of the lower courtsmore competent since they have the witnesses Condonation: offending party is restored to the same position he or she occupied before the offense was committed the only condition being that the offense must not be repeated Not proper to say that just because plaintiff has once been guilty she would forever lose her right to a divorcemakes condonation conditionedparty granting it shall forever have the right to commit the same offense himself with impunity

Condoned offence not being sufficient as a cause for divorce, is not a bar to divorce in favor of the plaintiff condonation restores equality before the law The court has not only reversed the judgment of the trial court but has entered a judgment against the plaintiff To deprive the plaintiff of the judgment which she has obtained and make a final determination of the case here without giving her an opportunity of correcting this error, if such exists, is inequitable and unjust

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Distinguished from separation in fact (Estrada v. Escritor) Agreement to separate- Art 221 (1) ALBANO vs. GAPUSAN Adm Matter No. 1022-MJ. May 7, 1976 Complainant: redentor Albano Respondent: Mun. judge Patrocinio C. Gapusan (dumalneg, Ilocos Norte) Nature of the case: Admin matter in the SC Ponente: Aquino, J. Redentor Albano filed a verified complaint charging mun judge patrocinio Gapusan with: a) Incompetence and ignorance of the law for having prepared and notarized a document providing for the personal separation of husband and wife and the extrajudicial liquidation of their conjugal partnership and b) Having allegedly influenced judge zacarias crispin of the CFI of Ilocos Norte in dciding two criminal cases In 1941,respondent notarized a said documentfor Valentina Andres and Guillermo maligtadocument states that if either spouse should commit adultery or concubinage as the case may be, then the other should refrain from filing an action against the other Judge gapusan denies the allegationsaid that they were separated already for a long time when they signed the document Another allegation is his influencing the CFI judgetook advantage of his intimacy w/ judge to acquit from frustrated murder case the defendants (people vs. Freddie GApusan Gamboa) and convicted albano of double frustrated murder w/ triple attempted murder Respondent says relationship is purely official

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DECISION: the respondent , as a member of the bar, is censured for having notarized the above-mentioned void agreement. The second charge was dismissed RATIO: 1) The covenents contained in the said separation agreement are contrary to law, moral and good customs undermine the institutions of marriage and the family 2) to preserve the institutions of marriage and the family, the law considers as void any contract for personal separation between husband and wife and every extrajudicial agreement during the marriage for the dissolution of the conjugal partnership 3) notaries were severely censured by this Court for notarizing documents which subvert the institutions of marriage and the family 4) allegation on influence is based on mere suspicion and was speculative and unfair to respondent judge

Facts:

IN RE: ATTY. RUFILLO BUCANA Adm Case No. 1637 July 6, 1976 Ponente: Antonio, J. Mrs. Angela D. Baltazar (brgy capt of Victorias Dumangas, Iloilo) filed complaint thru letter against respondent for having notarized on nov 10, 1975, an agreement executed by the spouses Gonzalo Baltazar and Luisa Sorongon wherein the aforementioned spouses agreed that in case anyone of them will remarry both parties offer no objection and waive all civil and criminal actions against them The agreement was entered into for the purpose of agreement to allow each and everyone of them to remarry w/o objection of reservation Respondent admits he signed the document but said that it was prepared w/o his knowledge and it was accidental that he signed it (mixed up w/ other documents he was supposed to sign)

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DECISION: guilty of malpractice and is hereby suspended from the office of notary public for a period of 6 months, with the admonition that a repetition of the same or a similar act in the future will de dealt with more severely. RATIO:

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Affidavit is contrary to law because it sanctions an illicit and immoral purpose- contrary to law, morals and good customs Marriage is an inviolable social institution , in the maintenance of which in its purity the public is deeply interested for it is the foundation of the family and of society, without which there could be neither civilization nor progress A notary public by virtue of the nature of his office, is required to exercise his duties w/ due care and w/ due regard to the provisions of existing law Distinguished from absolute divorce Divorce decreed abroadart 26 FC TENCHAVEZ v. ESCANO No. L- 19671 Nov. 29, 1965 Plaintiff-appellant: Pastor B. tenchavez Defendants-appellees: vicenta F. Escano et al. Nature of the case: direct appeal from a decision of the CFI of Cebu Ponente: Reyes, JBL

Facts:

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Feb 24, 1948 Vicenta and pastor exchanged marriage vows without the knowledge of her parents, before a catholic chaplain Lt. Moises Lavares 2) A few weeks before their secret marriage, their engagement was broken and vicenta accepted another suitor Joseling Lao but they reconciled and planned to get married and elope with the help of PAcita noel, their matchmaker 3) Elopement did not materialize, but vicenta admitted to her parents that they already got married 4) Escano spouses sought priestly advise and a recelebration of the marriage was suggested since it was an invalid marriage, due to lack of the authority from the archbishop or the parish priest for the officiating chaplain to celebrate the marriage 5) Recelebration did not take placedue to a letter purportedly coming from San cArlos college students disclosing an amorous relationship between pastor and pacita 6) Vicenta would not agree to another marriageher lawyer filed a petition for her to annul her marriage but she did not sign it so it was dismissed 7) June 24, 1950: she applied for passportwas approved and was able to leave for the US 8) Aug 22, 1950: she filed a verified complaint for divorce (state of Nevada Second Judicial District Court) on the ground of extreme cruelty, entirely mental in character 9) October 21, 1950: a decree of divorce, final and absolute was issued in open court by the said tribunal 10) Even parents of escano, filed a petition w/ the archbishop of cebu to annul their daughters marriage (sought papal dispensation of her marriage) 11) Sept 13, 1954: vicenta married an American Russell Leo moran in Nevada; she acquired American citizenship on aug 8, 1958 12) 30 july 1955: tenchavez initiated this complaint against vicenta and her parents for having dissuaded and discouraged vicenta from joining her husband and alienating her affections and the Roman Catholic Church for declaring the annulment of their marriage 13) He asked for legal separation and one million pesos for moral damages CFI; denied the claim of plaintiff-appellant pastor tenchavez for legal separation and one million pesos in damages against his wife and parents-in-law, the defendants-appellees CONCLUSION: 1) Foreign divorce between fil citizens sought and decreed after the effectivity of the present civil code is not entitled to recognition as valid in this jurisdiction and neither is the marriage contracted w/ another party by the divorced consort subsequently to foreign decree of divorce, entitled to validity in the country 2) The remarriage of divorced wife and her cohabitation w/ a person other than lawful husband entitle the latter to a decree of legal separation conformably to phil law 3) The desertion and securing of an invalid divorce decree by one consort entitled the other to recover damages SC DECISION: decision under appeal is modified: a) Plaintiff entitled to decree of legal separation from defendant b) Sentencing defendant vicenta to pay plaintiff the amount of P25000 for damages and attorneys fees c) Sentencing appellant to pay appellee, Escanos P5000 by way of damages and attorneys fees RATION;

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The chaplains alleged lack of ecclesiastical authorization from the parish priest and the Ordinary as required by canon law is irrelevant in civil lawArt 3613 of the Phil Legislature (marriage law in force during that time)only a formal requisite, not essential to give the marriage civil effects 2) Sec 27: no marriage shall be declared invalid because of the absence of one or several of the formal requirements of this act 3) The act of vicenta in abandoning her original action for annulment and subsequently suing for divorce implies an admission that her marriage to plaintiff was valid and binding 4) Vicenta claimsshe contracted marriage under undue influenceeven granting and assuming this to be truemarriage is not void ab initio but merely voidablemarriage remained valid until annulled by competent court 5) Marriage between vicenta and pastor remained subsisting and undissolved under Phil law, notwithstanding the decree of absolute divorce that the wife sought and obtained from the court of state of Nevada 6) At the time the divorce was decreed, Vicenta, like her husband was still a Filipino citizensubject to phil law and art 15 of the CC 7) The CC of the phils now in force does not admit absolute divorce-instead of divorce the CC only provides for legal separationmarriage bonds shall not be severed 8) For the phil courts to give recognition or effect to a foreign decree of absolute divorce bet fil citizens would be a patent violation of the declared public policy of the state; also it will give rise to irritating and scandalous discrimination in favor of wealthy citizen who can go abroad to seek divorce there 9) Her denial for consortium and refusal to perform her wifely duties and her desertion constitute a wrong for which the husband is entitled to corresponding indemnity 10) Her intercourse and invalid marriage with Rusell Leo moram entitles appellant to a deree of legal separation under the law on the basis of adultery 11) Complainants accusations against vicentas parents are not supported by evidenceof age alreadycan decide for herself B. Grounds Art 55, FC Art 97, CC Rules on legal Separation AM NO. 02-6-02 SC, August 2002 1. Sexual infidelity or perversion Art 55 (8), FC Art 333-334, RPC PEOPLE v. ZAPATA and BONDOC No. L- 3047 May 16, 1951 Plaintiff and appellant: People of the Phils Defendants and appellees: Guadalupe Zapata and Dalmacio Bondoc Nature of the Case: Appeal from an order of the CFI of pampanga Ponente: padilla, J.

Facts:

A complaint was filed by Andres bondoc against Guadalupe Zapata his wife and dalmacio bondoc he paramour for cohabiting and having repeated sexual intercourse from year 1946 to march 14, 1947 2) Defendant-wife plead guilty and sentenced to suffer 4 mos of arresto mayor which penalty she served 3) 17 sept 1948, the offended husband filed another complaint for adulterous acts committed from march 15 1947 to sept 17 1948 4) Defendants filed motion to quashtwice put in jeopardy of punishment for the same offense CFI: quashed the second complaint - Adulterous acts charged in the first and second complaints must be deemed one continuous offense no person shall be put twice in jeopardy for the same offense SC DECISION: order (quashed second complaint) is reversed and set aside and the trial court directed to proceed with the trial of the defendants in accordance with law RATIO: 1) 2) 3) Adultery is a crime of result and not of tendency; it is an instantaneous crime which is consummated and exhausted or completed at the moment of the carnal unioneach sexual intercourse constitutes a crime of adultery There is no constitutional or legal provision which bars the filing of as many complaints for adultery as there were adulterous acts committed, each one constituting a crime FOR CONTINUOUS CRIME: a) plurality of acts performed separately during a period of time; b) unity of penal provisions infringed upon or violated; c) unity of criminal intent or purpose (two or more of the same penal provision are united in one and the same intent leading to the perpetration of the same criminal purpose or aim) In the instant case, the last unity does not existthe culprits perpetrate the crime in every sexual intercourse and they need not do another or other adulterous acts to consummate it

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This does not violate the double jeopardy clause of the constiif the second complaint places he defendants twice in jeopardy of punishment for the same offense, the adultery committed by the male defendant charged in the second complaint, should he be absolved from or acquitted of the first charge upon the evidence that he did not know that his codefendant was a married woman, would remain or go unpunished. Even if husband should pardon his wife, such pardon would not exempt the wife and her paramour from criminal liability for adulterous acts committed after the pardon was granted, because the pardon refers to previous and not to subsequent adulterous acts Attempt on the life of the other spouse Art 55 (9), FC Art 97 (2) CC MUNOZ v. BARRIOS NO-12506-R April 15, 1955 Petitioner and appellant: Felicidad P. Muoz Respondent and appellee: Jose del Barrio Nature of the case: Appeal from a judgment of the CFI of Bulacan POnente: felix, J FACTS: 1) 2) 3) 4) Sept 24, 1942 civil weding of petitioner and respondent (municipal court of manila) Oct 24: canonical wedding Children: Felix Luis del Barrio and Maria Teresa del Barrio Frequent quarrels- husband maltreated wife by deed; the latter was unable to bear such punishment in 1947 they unceremoniously separated 5) Notwithstanding separation of dwelling, met each other in the city of manila 6) Wife claims that in DEC 1950 of Jan 1951 and sept of latter year she was maltreated again by husband 7) She filed complaint among other things: that the system of conjugal partnership of gains governs her marriage with respondent; no property has been acquired during their marriage except a portion of residential land in Meycawayan Bulacan from which rentals are derived; that respondent made several attempts on her life which compelled her to live separately from the respondent since 1947 and that respondent has not provided support for petitioner and their children she prays that: decree of legal sep be entered petitioner be awarded of custody of their children respondent be directed to the support of said children petitioner to pay costs of suit charged against conjugal partnership that whatever shall remain of said conjugal partnership after deduction of expenses be divided and adjudicated in equal parts petitioner be granted such further and complete relief as may be just and equitable in the premises

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CFI: petition dismissed for lack of merits CA: ISSUE: Whether the maltreatments that the appellant suffered at the hands of the respondent after their separation of dwelling, furnish ground for the legal separation applied for under par 2 of art 97 of the CC NCC: Art 97 :petition for legal sep- adultery and attempt of spouse to life of the other DECISION OF SC: the decision appealed from being in conformity with the law and the evidence of record is AFFIRMED RATIO: 1) 2) 3) 4) 5) 6) in the case at bar, alleged maltreatment of the wife occurred before their separation in 1947-must not have amounted to said husbands attempt on life of wife since the latter did not institute any action for legal sep from him upon the effectivity of the CC on august 30, 1950 case only brought to court on oct 26, 1951 after the alleged maltreatment in sept 1951 maltreatment referred by witness (Jovita Faustino) consisted merely in appellees giving a fist blow on the face of appellant scratches on her brow and cheeks and on certain points of the neck which were blackened an attempt on the life of the person implies that the actor in attempt is moved by INTENTION TO KILL the person against whom the attempt is made SC share the opinion of trial judge that said maltreatment cannot constitute attempt on the life of the appellant as provided in art 97 no 2 of the CC

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Intent is an internal act deduced from external acts actor intending the natural consequences of his acts 8) In the maltreatment complained of, the respondent only used at most his bare fists or hands and desisted from giving further chastisement after the first blows were given at the spur of the impulse 9) Civil caseonly preponderance of evidence not beyond reasonable doubt 10) Petitioner appellant herself should not have been so sure of her evidence when instead of the present action she dared not to cause the prosecution of her husband for attempted parricide as a means of establishing her right to secure the legal separation she applies for in this case

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WHO CAN ASK FOR LEGAL SEPARATION Art 55, FC Art 99-100 CC WHEN MAY PETITION BE FILED Art 57, FC Art 102, CC CONTRERAS vs. MACARAIG Plaintiff-appellant: Elena Contreras Defendant-appellee: Cesar J. Macaraig Nature of the case: Appeal from a decision of the JDRC of Manila Ponente: Dizon, J

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Facts: March 16, 1952: plaintiff and defendant were married (quiapo, manila) Had three children (eusebio, Victoria, Alexander) The spouses own no other conjugal property (only house and lotPhilan Homes in QC) When employed as special agent in malacanang he began to be away often and comes home very late Sept 1962: Avelino LUbos, family driver, told plaintiff that defendant was living in Singalong with Lily Ann Alcala (worker at MICO owned by plaintiffs father) 6) Octoberreturned to plaintiff; April 1963received rumors but still happy husband returns home in May 1963 7) She sent Mrs. Felicisima Antioquia- to verify if Lily Ann Alcala has given birth to a babyconfirmed (named Maria vivien Mageline Macaraig) 8) Plaintiff entreated father in law to talk to sonbut father said he cannot do anything 9) Nov 1963: plaintiff talked to older sister of defendantset up a meeting for the parties 10) Dec 1963: plaintiff accompanied by two children (Victoria and Alexander) confronted husbanddefendant informed plaintiff that he could no longer leave lily ann and refused to return to his legitimate family 1) 2) 3) 4) 5) ISSUE: whether the period of one year provided for in Art 102 of the CC should be counted as far as the instant case is concerned, from sept 1962 or from dec 1963. JDRC: dismissed the complaint upon the ground that the same was filed more than one year from and after the date on which she had become cognizant of the cause for legal separation SC DECISION: the decision appealed from is set aside and another is hereby rendered holding that appellant is entitled to legal separation as prayed for in her complaint; the case is hereby REMANDED to the lower court for appropriate proceedings in accordance with law RATIO:

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Court relied on the time when wife acquired info even if the wife shall not then be in possession of proof sufficient to establish the concubinage before the law (sept 1962) In sept 1962: plaintiff only had hearsay information As a matter of fact, notwithstanding all these painful informationwhich would not have been legally sufficient to make a case for legal separationappellant still made brave if desperate attempts to persuade her husband to come back home Court is persuaded that in the eyes of the law, the only time when appellant really became cognizant of the infidelity of her husband was in the early part of dec 1963 It was only on the occasion mentioned when her husband admitted to her that he was living with and would no longer leave lily ann to return to his legitimate family that appellant must be deemed to be under obligation to decide whether to sue or not for legal separation and it was only then that the legal period of one year must be deemed to have commenced LAPUZ vs. EUFEMIO

NO L. 30977 January 31, 1972 Petitioner-appellant: Carmen Lapuz Sy represented by her substitute Macario lapuz Respondent-appellee: Eufemio S. Eufemio alias Eufemio Sy Uy Nature of the case: petition for review by certiorari of an order of the JDRC of Manila Ponente: reyes, JBL, J. Macario Lapuz, heir of deceased (petitioner) sought to substitute the deceased and to have the case prosecuted to final judgment August 19, 1953 Carmen Sy filed a petition for legal separation against Eufemio 21 sept 1934: civil wedding; 30 Sept 1934: canonicallylived together as husband and wife until 1943 when her husband abandoned her They had no child, acquired properties during their marriage She discovered her husband cohabiting with a Chinese woman named Go HIok at sisa St. Manila (march 1949) She prayed for issuance of a decree of legal separationand that Eufemio be deprived of his share of the conjugal partnership profits Eufemio counterclaimed filed petition for declaration of marriage as void ab initio of the ground of his prior and subsisting marriage with Go hiok (Ngo hiok) But before the trial could be completed petitioner died in a vehicular accident on may 31, 1969

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June 9, 1969: Eufemio moved to dismiss the petition for legal separation on 2 grounds: a) filed beyond the one-year provided for in Art 102, CC and that the death of Carmen abated the action for legal separation 10) Counsel for deceased petitioner moved to substitute the deceased carmen by her father, macario lapuz, counsel for eufemio opposed the motion JDRC: dismissed case for legal separation on the ground that the death of the therein plaintiff which occurred during pendency of the case, abated the cause of the action itself ISSUE: 1) WON the plaintiff s cause of action has survived 2) when an action for legal separation is converted by the counterclaim into one for declaration of nullity of a marriage, does the death of a party abate the proceedings? 3) does the death of a plaintiff before final decree, in an action for legal separation, abate the action? If it does, will abatement also apply if the action involves property rights? DECISION OF SC: The appealed judgment of the Manila JDRC is AFFIRMED RATIO: 1) Although defendant, and herein respondent Eufemio S. Eufemio, filed counterclaims, he did not pursue them after the court dismissed the case. H acquiesced to the dismissal by praying for affirmance of the order that dismissed not only the petition for legal separation but also his counterclaim to declare the eufemio-lapuz marriage to be null and void 2) The petition for legal separation and the counterclaim to declare the nullity of the same marriage can stand independent and separate adjudication for legal separation presupposes a valid marriage while the petition for nullity has a voidable marriage as a precondition 3) An action for legal separation is purely PERSONAL (involves nothing more than bed and board separation) the spouses can by their reconciliation, stop or abate the proceedings and even rescind a degree of legal separation already rendered 4) Being personal in character, it follows that the death of one party to the action causes the death of the action itselfactio personalis moritur cum persona 5) Marriage is automatically dissolved by deathit deprives the court of jurisdiction 6) The same rule is true of causes of action and suits for separation and maintenance 7) A review of the resulting changes in property relations between spouses shows that they are solely the effect of the decree of legal separation; hence, they cannot survive the death of the plaintiff if it occurs prior to the decree 8) The property rights are mere effects of a decree of separation, their source being the decree itself; without the decree such rights do not come into existence, so that before the finality of a decree, these claims are merely rights in expectation 9) If death supervenes during the pendency of the action, no decree can be forthcoming, death producing a more radical and definitive separation and the expected consequential rights and claims would necessarily remain unborn 10) As to the petition of respondent-appellee Eufemio for declaration of nullity ab initio of his marriage to Carmen, it is apparent that such action became moot and academic upon the death of the latter, and there could be no further interest in continuing the same after her demise, that automatically dissolved the questioned union 11) The bigamous marriage had not been void ab initio but only voidable under art 83, par 2 of the CC second marriage contracted with first wife having been absent for 7 consecutive years, generally believed to be dead, still the action for annulment became extinguished as soon as one of the 3 persons involved

had died (art 87 par 2, CC)requiring that action for annulment should be brought during the lifetime of any of the parties involved. MATUBIS v. PRAXEDES No. L-11766 Oct 25, 1960 Plantiff and appellant: Socorro Matubis Defendant and appellee: Zoilo Praxedes Nature of the Case: Appeal from a judgment of the CFI of Camarines Sur Ponente: Paredes, J. FACTS: 1) Plaintiff Socorro filed a complaint for legal separation and change of surname against her husband defendant Zoilo Praxedesalleging abandonment ad concubinage 2) Defense interposed that it was plaintiff who left the conjugal home 3) January 10, 1943: married legally at iriga, cam sur 4) For failure to agree on how they should live as husband and wife, the couple on may 30, 1944 agreed to live separately from each other until the present 5) April 3, 1948: they entered into an agreementboth relinquishing their rights over the other as legal husband and wife (including support, getting another mate and claims) 6) January 1955: defendant began cohabiting with one Asuncion Rebuladosept 1, 1955gave birth to a child CFI: holding that acts of defendant constituted concubinage, a ground for legal separation. It however, dismissed the complaint REASON: plaintiff became aware of the illegal cohabitation of her husband in Jan 1955complaint was fied on april 24, 1956filed out of time and for that reason the action is barred ART 100 of the NCC: legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery of concubinagein here we see that plaintiff consented to the concubinage of her husbandher consent is clearhaving consented she cannot claim legal separation DECISION OF SC: the decision appealed from is in accordance with the evidence and the law on the matter. The same is AFFIRMED. RATIO: 1) The complaint was filed outside the periods provided for by Art 102 of the NCC: an action for legal separation cannot be filed except within one year from and after the date on which the plaintiff became cognizant of the cause and within five years from and after the date when such cause occurred Condonation and consent on the part of the plaintiff are necessarily the import of the agreement (par 6 (b)) the condonation is not only implied by expressed Art 100 of the NCC: having condoned and or consented in writing, the plaintiff is now undeserving of the courts sympathy

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MACADANGDANG v. CA No. L- 38287 Oct 23, 1981 Petitioner: Antonio Macadangdang Respondents: CA, Hon. Alejandro E. Sebastian, Filomena Gaviaa Macadangdang and Rolando Rama Nature of the case: petition for certiorari, prohibition and injunction to review the resolution of the CA FACTS: 1) Prayer for TRO review CA decision which dismissed the petition and motion for reconsideration by petitioner 2) 1946: respondent FIlomena Gaviana Macadangdang and Antonio macadangdang contracted marriage 3) Lived together for two years, blessed with 6 children (3 majority, 3 minors) 4) Established businesses and accumulated wealth from a simple life 5) Both accused each other of indulging in extramarital relations-married life was intolerable and they separated in 1965 when private respondent left for cebu for good 6) When she returned to davao, in 1971, she learned of the illicit affairs of her estranged husbandshe decided to take initial action 7) April 28, 1971: private respondent (plaintiff therein) filed a complaint for legal separation in CFI of Davao Br VIII of Tagum 8) Feb 8, 1972: private respondent filed a petition for appointment of administrator, to administer the state of the conjugal partnership pending the termination of the case 9) Petitioner opposed the petition

CFI: Jan 4, 1973: ordered the legal separation of plaintiff and defendant; dissolution of the conjugal community or property; defendant ordered to pay plaintiff P10000 for her support (disposing properties and mortgaging them without plaintiffs knowledge) until the court can appoint and administrator, who will take over the administration and management of all the conjugal partnership properties and act as guardian of the minor children; to protect said properties from dissipation, and who will submit an inventory of said properties for just division 10) August 25, 1973: private respondent filed another motion for appointment of an administrator 11) Sept 20, 1973: respondent judge issued order directing plaintiff to submit 3 names for appointment 12) Petitioner filed motion for reconsideration with prayer that he be allowed to continue administering the conjugal properties in accordance with lawthis was denied 13) Private respondent submitted nominees for administrator 14) Respondent judge denied the motion for reconsideration filed by petitioner declaring that legal sep is already final CA: ruled that the decision of the lower court had become final and the appointment of the administrator was valid and that petition was not sufficient in substance, since the applicable law and jurisprudence afford the petitioner no valid casue to impugn the three questioned orders 15) Antonio macadangdang died on nov 30, 1979the civil case had become moot and academic ISSUE: 1) did the CA gravely erred in holding that respondent judges incomplete decision of jan 4, 1973 had become final and executor and that the appointment of an administrator was proper? 2) did petitioners death render the case moot and academic? QUESTIONS FOR RESOLUTION: 1) Whether the decision of the TC dated jan 4, 1973 finding petitioner guilty of concubinage and decreeing legal separation already become final and executor long before the petition was filed? 2) Should the children of both spouses predecease the surviving spouse, whether the intestate heirs of the deceased could inherit from the innocent surviving spouse particularly where the latters share in the conjugal assets is concerned? 3) The effect of the pendency of the special proceedings in the CFI of Davao for the settlement of the estate of the deceased petitioner 1) 2) CONTENTION OF PETITIONER The CA committed grave error in holding the respondent judges incomplete decision had become final and executor The lower court only resolved the issue of legal separation and reserved for supplemental decision of the division of the conjugal propertiesincomplete judgment-not having resolved the issues involved in the litigationfor this reason the trial had to be reopened and a supplemental decision had to be rendered

DECISION OF SC: the petition is DISMISSED RATIO: 1) The law explicitly and clearly provides for the dissolution and liquidation of the conjugal partnership of gains and absolute community of property as among the effects of the final decree of legal separation 2) ART 106 of the CCmandates the dissolution and liquidation of the property regime of the spouses upon finality of the decree of legal separation 3) This legal effect of the decree of legal separation ipso facto, or automatically follows, as an inevitable incident of the judgment decreeing legal separationfor the purpose of determining the share of each spouse in the conjugal assets 4) Is the judgment directing an accounting in an action for recovery of properties final and appealable?YES regardless whether the accounting is the principal relief sought of a mere incident or consequence of the judgment which grants recovery and delivery of absconded properties as the principal relief and expressly provides a judgment or order directing an accounting in an action, shall not be stayed after its rendition and before an appeal is taken or during the pendency of an appeal 5) Much more is a judgment which orders accounting as a mere incident appealable, because the judgment which orders the delivery of properties does finally dispose of the action on its merits 6) Art 106 of the CC: the decision of the trial court decreeing the legal separation between the spouses Antonio macadangdang and filomena gaviana macadangdang had long become final and executor and the division of the conjugal property in a supplemental decision is a mere incident of the decree of legal sep 7) The death of herein petitioner who was declared the guilty spouse by the trial court, poses a new problem which can be resolved simply by the application of the rules on intestate succession with respect to the properties of the deceased petitioner 8) Upon the liquidation and distribution conformably with the law governing the effects of the final decree of legal sep, the law on intestate succession should take over in the disposition of whatever remaining properties have been allocated to petitioner.

9)

The properties that may be allocated to the deceased petitioner by virtue of the liquidation of the conjugal assets, shall be distributed in accordance with the laws of the intestate succession in special proceedings no. 134

TEEHANKEE, J (concurring in the result) Moot and academic due to death There is no point in the respondent wifes insisting upon forfeiture because of the petitioners death Offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession (moot and w/o application) Respondent wife and children of their marriage are after all the intestate and forced heirs of the deceased petitioner and the inheritors of his estate SOMOSA-RAMOS v. VAMENTA No. L- 34132 July 29, 1972 Petitioner: Lucy Somosa- Ramos Respondents: Hon. Cipriano Vamenta Jr. (CFI, Negros oriental) and Clemente G. Ramos Nature of the case: Original petition in the SC. Certiorari Ponente: Fernando, J. ISSUE: WON art 103 of the CC prohibiting the hearing of an action for legal separation before the lapse of six months from the filing of the petition would likewise preclude the court from acting on a motion for preliminary mandatory injunction applied for as an ancillary remedy for such suit FACTS: 1) The petitioner filed in the sala of respondent judge for legal separation, concubinage as the ground and an attempt by him against her life being alleged 2) She likewise sought of a writ of preliminary mandatory injunction for the return to her of what she claimed to ber her paraphernal and exclusive property, then under the administration and management of respondent Clemente Ramos 3) Opposition to this hearing invoking Art 103 of the CCif motion is heard, the prospect of reconciliation of the spouses would become dim CFI: AFFIRMATIVE. Ordered the suspension , upon the plea of the other respondent, the husband, of the hearing on a motion for a writ of preliminary injunction filed by petition at the same time the suit for legal separation was instituted DECISION OF THE SC: the plea of petitioner for a writ of certiorari is GRANTED and the order of the respondent court suspending the hearing on the petition for writ of preliminary mandatory injunction is SET ASIDE. Respondent judge is DIRECTED to proceed without delay to hear the motion for preliminary mandatory injunction RATIO: 1) Holding of this court that Art 10 of the CC is not an absolute bar to the hearing of a motion for preliminary injunction prior to the expiration of the 6-month period A suit for legal sep is something elsethe hope that the parties may settle their differences is not all together abandoned-hence the interposition of a 6-month period before an action for legal sep is to be triedthe court should remain passive at this time; it is precluded from hearing the suit There is then some plausibility for the view of the lower court that an ancillary motion such as one for preliminary mandatory injunction After the filing of the petition for legal separation, the spouse shall be entitled to live separately from each other and manage their respective property The husband shall continue to manage the conjugal partnership property but if the court deems it proper, it may appoint another to manage said property, in which case the administrator shall have the same rights and duties as a guardian and shall not be allowed to dispose of the income or of the capital except in accordance with the orders of the court There is a recognition that the question of management of their respective property need not be left unresolved even during the 6-month period There is justification then for the petitioners insistence that her motion for preliminary injunction should not be ignored by the lower courtto prevent husband for continually managing her paraphernal properties The period of 6 months is evidently intended as a cooling off periodbut this practical expedient, necessary to carry out legislative policy, does not have the effect of overriding other provisions such as the determination of the custody of the children and alimony and support pendent lite according to the circumstances Thus there can be no more impediment for the lower court acting on the motion of petitioner for issuance of a writ of preliminary mandatory injunction

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3) 4)

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6) 7)

8)

9)

NOTES: REQUIREMENTS OF ADVOCACY FOR LEGAL SEPARATION INTRODUCTION Introduced to us by the SIETE PARTIDAS during the Spanish regimeallows only relative divorce American regime ACT NO. 2170: provisions of the siete partidas were repealed by provision that instituted absolute divorce NCC: RA no. 386concept of relative divorce was re-establishedLEGAL SEPARATION CC: does not admit absolute divorceinstead of divorce the CC now provides only for legal separation and even in that case, it expressly prescribes that marriage bonds shall not be severed Purely personal Spouses can reconcile, stop and abate the proceedings and even rescind a decree of legal separation already rendered Being personal, the death of one party causes the death of the action itself II. GROUNDS: CC (before FC) a. Adultery or concubinage of spouse b. Attempt of spouse against the life of the other III. PROCEDURAL REQUIREMENTS a. Judicial satisfaction that reconciliation is highly improbable b. Time element

E.

Effect of the Pendency of the Petition Art 61, 62, 198 FC Art 104-105, 292 CC CASES: DELA VINA v. VILLAREAL AND GEOPANO No. 13982 July 31, 1920 Petitioner: Diego dela Vina Respondents: Antonio Villareal (Auxiliary Judge of FI) and NArcisa Geopano Nature of the case: original action in the SC. Certiorari POnente: Johnson, J. FACTS: 1) The purpose of the action is to obtain an order declaring: a) That the respondent (Villareal) has no jurisdiction to take cognizance of a certain action for divorce instituted by Narcisa Geopano against her husband b) That the said respondent judge has exceeded his power and authority in issuing a preliminary injunction against the said petitioner prohibiting him from alienating or encumbering any part of the conjugal property during the pendency of the action c) That all proceedings theretofore had in said court were null and void 2) Narcisa filed a complaint (sept 17, 1917) against Dela Vina Married in the year 1888 in negros oriental Had nine children and lived together They had acquired property, real and personal (P300,000) all of which are under the administration of Dela VIna Since 1913 the defendant had been committing acts of adultery with ANA CALOG, sustaining illicit relations with her and having her as his concubine Because of this she ejected defendant from the conjugal home The defendant had no means of support and was living only at the expense of one of her daughters 3) She was praying for: a) Decree of divorce b) Partition of the conjugal property c) Alimony pendent lite in the sum of P400 per month d) That a preliminary injunction be issued against the defendant restraining and prohibiting him to alienate or encumber the property which belonged to the conjugal partnership 4) Petitioner opposed the said motiondemurred the complaint upon the ground that the court had no jurisdiction to take cognizance of the cause, nor over the person of the defendant

TC: overruled the defendants demurrer, and granted the preliminary injunction prayed for by the plaintiff QUESTIONS/ISSUES:

1) 2)

May a married woman ever acquire a residence or domicile separate from that of her husband during the existence of the marriage? In an action for divorce, brought by the wife against her husband, in which the partition of the conjugal property is also prayed for, may the wife obtain a preliminary injunction against the husband restraining and prohibiting him from alienating or encumbering any part of their conjugal property during the pendency of the action PETITIONER CONTENDS: 1) CFI of Iloilo had no jurisdiction: defendant was a resident of Negros Oriental and plaintiff as wife of defendant must also be considered resident of the same provincedomicile of husband is domicile of wife (according to law); plaintiff could not acquire a residence in Iloilo before the marriage between her and the defendant was legally dissolved 2) Claims art 1412 and 1413: husband is the manager of the conjugal partnershipempowered t alienate and encumber the conjugal property without the consent of wifeno right of her was violated

DECISIONS OF SC: petition is DENIED RATIO: 1) General principle, the domicile of husband is domicile of wifetheoretic identity of person and of interest but not an absolute rule though a presumption 2) The wife may acquire another and separate domicile from that of her husband where the theoretical unity of husband and wife is dissolved as it is by the institution of divorce proceedings or where the husband has given cause for divorce; or where there is separation of the parties by agreement or a permanent separation due to desertion of the wife by the husband or attributable to cruel treatment on the part of the husband; or where there has been a forfeiture by the wife of the benefit of the husbands domicile 3) The maxim that the domicile of the husband is the domicile of the wife cannot be applied to oust the court of its jurisdiction neither from parity of reasons can it give jurisdiction 4) When the tacit consent of the husband and other circumstances justify it, for the purpose of determining jurisdiction, the habitual residence of the woman should be considered as her domicile where her right may be exercised in accordance with art 63. 5) Furthermore, in this case there is no longer an identity of persons and of interest between the husband and the wifetherefore, the law allowed her to acquire a separate residence 6) Sec 164 of Act no 190: A preliminary injunction may be granted when it is established that: a) Plaintiff is entitled to the relief demanded b) The commission or continuance of some act complained of during the litigation would probably work injustice to the plaintiff c) Defendant is doing or threatenssome act probably in violation of the plaintiffs rights 7) The husband should not injure but promote the interest of the wifewhen the harmonious relationship ceases, the wife seeks to dissolve the marriage and to partition conjugal property, it is but just and proper, in order to protect the interests of the wife that the husbands power of administration be curtailed during the pendency of the action 8) In this case the right the plaintiff is seeking after is not the right to administer the conjugal property but the RIGHT TO SHARE in the conjugal partnership 9) The power to grant preliminary injunctions, both preventive and mandatory, is a logical and necessary incident of the general powers conferred upon the CFIs as courts of record of general and unlimited original jurisdiction both legal and equitable 10) In an action for divorce brought by the wife against the husband, in which the partition of the conjugal property is also prayed for, the wife may obtain a preliminary injunction against the husband prohibiting the latter from alienating or encumbering any part of the conjugal property during the pendency of the action 11) CFI judge had jurisdiction to hear and determine the action for divorce and he did not exceed his power and authority in issuing the preliminary injunction against the defendant LERMA v. CA No. L-33352 Dec 20, 1974 Petitioner: Teodoro Lerma Respondents: CA and Concepcion Diaz Nature of the case: Petition for review on certiorari of a resolution of CA Ponente: Makalintal, CJ FACTS: 1) Lerma and Diaz married on May 19 1951 2) August 22, 1969: petitione filed a complaint for adultery against the respondent and a certain Teodoro Ramirez 3) Nov 18, 1969: respondent filed with the lower court a complaint against petitioner for legal separation and or separation of properties, custody of their children and support with an urgent petition for support pendent elite for her and their youngest son Gregory

4) 5)

The respondents complaint for legal separation is based on two grounds: concubinage and attempt against her life Petitioner filed his opposition to the respondents application for support: defense: adultery charge he had filed against respondent

CFI: granted the respondents application for support pendent elite amended: amount from 2,250 to 1,820 6) petitioner filed with CA a petition for certiorari and prohibition w/ preliminary injunction to annul the aforementioned ordersgrave abuse of discretion CA: issued a writ of preliminary injunction to stop Judge Luciano from enforcing said orders 7) respondent court then set aside the assailed orders and granted the petitioner an opportunity to present evidence before the lower court (oct 8) 8) respondent moved to reconsider decision on the ground that petitioner had not asked that he be allowed to present evidence in the lower court 9) respondent court set a side oct 8 decision, dismissed the petitionnow subject of instant proceeding for review (jan 20, 1971) 10) petitioner filed an urgent motion for a writ of preliminary injunction and/or restraining order 11) court resolved to issue a TRO effective immediately and until further orders from the Court- addressed to judge luciano and reps 12) respondent filed opposition w/ a prayer for immediate lifting of the TRO issued ex parte: grounds of motion; a) an order granting support pendent elite, although interlocutory is immediately executory even if appealed unless enjoined b) dismissal of petition by CA rendered functus oficio the writ of preliminary injunction it had previously issued c) under Art 292 of the NCC: during the proceedings for legal sep or for annulment of marriage, the spouses and children shall be supported from the conjugal partnership propertysuch support is mandatory even if there be showing that the wife is guilty of adultery Note: CFI of Rizal decided the adultery case and found her guilty together with her co-accused, teodoro Ramirez, sentencing them to a term of imprisonment second adultery case with Jose Gochangco ISSUE: Whether adultery is a good defense against the respondents claim for support pendente lite DECISION OF SC: Resolution of respondent CA (jan 21, 1971) and the orders of the respondent court (JDRC) are all SET ASIDE and their enforcement enjoined, without prejudice to such judgment as may be rendered in the pending action for legal sep between the parties RATIO: 1) 2) adultery is a good defense (Art 292) it is suggested that while adultery may be a defense in an action for personal support. That is support of the wife by the husband from his own funds, it is not a defense when support is taken from the conjugal partnership property 3) during the pendency of the of the legal sep proceeding (support is taken from the conjugal partnership) it does not preclude the loss of such right in certain cases 4) the said article contemplates the pendency of the court action and inferentially at least a prima facie showing that action will prosper 5) ART 100 of CC: legal sep may be claimed only by innocent spouse. Where both spouses are offenders, a legal sep cannot be claimed by either of them 6) Probable failure of the respondents suit for legal sep can be foreseen since she is not an innocent spouse, having been convicted of adultery by the CFI 7) The right to separate support or maintenance even from the conjugal partnership property presupposes the existence of a justifiable cause for the spouse claiming such right to live separately 8) Art 104 of the CC: after the filing of petition for legal sep the spouses shall be entitled to live separately from each other 9) A petition in bad faith, such as that filed by one who is himself or herself guilty of an act which constitutes a ground for legal sep at the instance of the other spouse, cannot be considered as within the intendment of the law granting separate support 10) Art 303: obligation to give support shall cease when the recipient, be he a forced heir or not, has committed some act which gives rise to his disinheritance 11) Art 921: one act is when a spouse gave cause for legal separationthe loss of the substantive right to support in such situation is incompatible with any claim for support pendente lite

REYES v. INES-LUCIANO No L- 48219 Feb 28, 1979 Petitioner: Manuel J.C Reyes

Respondents: Hon. Leonor Ines-Luciano (JDRC QC), CA, Celia Ilustre-Reyes Nature of the case: petition for certiorari to review the decision of the WCC Ponente: Fernandez, J. FACTS:

1)

private petitioner Celia Ilustre Reyes filed in the JDRC QC a complaint dated June 3, 1976 against her husband manuel CJ Reyes for legal sep on the ground of attempt to kill the plaintiff (banged her head on a cement floor, boxed her, blows, hitting her abdomen, kicking etc)- March 10, 1976 and May 26, 1976) 2) plaintiff asked for support pendent elite for her and her three children 3) defendant petitioner herein, opposed the application for support on the ground that his wife had committed adultery with her physician JDRC: issued order (mar 15, 1977) granting plaintiffs prayer for alimony pendent elite in the amount of P5000 a month commencing from June 1976 4) 5) 6) petitioner filed motion for reconsiderationwife not entitled to support during pendency of the case and that if entitled amount was excessive respondent judge reduced the amount from P5000 to P4000 a month Manuel JC Reyes filed petition for certiorari in CA (july 25,1977) asking that order granting support to private respondent be annulled-respondent judge had committed grave abuse of discretion or that said order be modified in as much as the amount awarded is excessive

CA: dismissed the petitionhusband financially capable DECISION OF SC: the support of P4000 should e made to commence on March 1, 1979 (since a TRO was issued before handonly P1000 a month) The petition for certiorari is DENIED and the decision of CA sought to be reviewed is AFFIRMED with the modification that the support pendent elite at the rate of P4000 a month would commence from March 1, 1979 RATIO: 1) 2) 3) 4) 5) 6) adultery is a defense in an action for support however, the alleged adultery of the wife must be established by competent evidencemere allegation will not bar from the right to receive support pendent elite adultery is good defense if properly proved and sustained will defeat the action petitioner did not present any evidence to prove the allegation that his wife had committed adultery with another person private respondent was not asking support to be taken from petitioners personal funds of wherewithal, but from the conjugal propertywhich was her documentary evidenceit is therefore doubtful whether adultery will affect her right to alimony pendente lite the complaint for legal sep contains allegations showing that on atleast two occasions the defendant herein petitioner had made attempts to kill the private respondent in fixing the amount of monthly support, the respondent judge did not act capriciously and whimsically considered the ff: defendant is unemployed and without funds supported by her father with whom she resides he maltreated her and tried to kill her all their conjugal properties are in the possession of the defendant who is also pres, manager and treasurer of their own corp (standard mineral products; devt and tech consultants inc; contra-prop marine phils inc) high cost of living due to inflation; financial ability of petitioner it is thus seen that respondent judge acted with due deliberation before fixing the said amount mere affidavits may satisfy the court to pass upon the application for support pendent eliteit is enough that the facts be established by affidavits or other documentary evidence appearing in the record there is no showing that respondent judge had committed a grave abuse of discretion in granting said support

7) 8) 9)

F. DEFENSES 1. CONSENT Art 56 (2) FC CASES;

MATUBIS v. PRAXEDES (same as above) PEOPLE v. SANSANO and RAMOS PEOPLE v. SCHNEKENBERGER No.48183 Nov 10, 1941 Plaintiff-appellee: People of the Phils Defendants-appellants: Rodolfo A. Schneckenberger et al.

Nature of the case: appeal from a judgment of CFI of Manila Ponente: Moran, J. FACTS: 1) May 15, 1926: accused Rodolfo married the complainant Elena Ramirez Cartagena 2) After 7 years, agreed for reason of alleged incompatibility of character to live separately from each other 3) May 25, 1935: they executed documentagreement 4) June 15, 1935: accused w/o leaving the phils secured a divorce decree from civil court of Juarez, bravos dist of Chihuahua mexico 5) May 11, 1936: he contracted another marriage with co-accused Julia medel in the justice of peace court of malabon, rizal and lived together as husband and wife in manila 6) Because of the nullity of the divorce decree, complainant herein instituted two actions against the accused one for bigamy and another for concubinage CFI: first culminated in the conviction of accusedsentenced to a penalty of two months and one day of arresto mayor 7) on the trial for concubinage, accused interposed the plea of double jeopardy and the case was dismissed

CA: the Court held that the dismissal before trial to be premature and without deciding the question of double jeopardy, remanded the case to the trial court for trial on the merits TC: accused was convicted of concubinage through reckless imprudence and sentenced to penalty of two months and one day of arresto mayor -this appeal DECISION OF SC; Judgment is reversed and the accused is ACQUITTED RATIO: 1) 2) 3) 4) 5) 6) 7) 8) 9) 10) 11) 12) 13) plea of double jeopardy, it need only be observed that the defense of bigamy for which he was convicted and that of concubinage for which he stood trial in the court are two distinct offenses in the law BIGAMY: celebration of second marriage while the first is still existingoffense against civil status which may be prosecuted at the instance of the state CONCUBINAGE: mere cohabitation by the husband with a woman who is not his wife; offense against chastity and may be prosecuted only at the instance of the offended party DOUBLE JEOPARDY: test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense the accused should have been acquitted of the crime of concubinage the document executed by and between the accused and the complainant in which they agreed , while illegal for the purpose for which it was executed , constitutes nevertheless, a valid consent to the act of concubinage within the meaning of sec 344 of the RPC there can be no doubt that by such agreement, each party clearly intended to forego the illicit acts of the other consent bars the offended party from instituting a criminal prosecution in cases of adultery, concubinage, seduction, abduction, rape and acts of lasciviousnessgiven expressly or impliedly after the crime has been committed PARDON: refers to the offense after its commission CONSENT: refer to offense prior to its commission Both means that offended party has chosen to compromise with his/her dishonor, he/she becomes unworthy to come to court and invoke its aid in the vindication of the wrong Prior consent is as effective as subsequent consent to bar the offended aprty from prosecuting the offense If these is morally condemnatory in a situation of this character, the remedy lies not with the court but with the legislative dept of the govtwhat the law is, not what it should be, defines the limits of the courts authority

2. CONDONATION Art 56(1), FC CASE: BUGAYONG v. GINEZ No L-10033 Dec 28, 1956 Plaintiff and appellant: Benjamin BUgayong Defendant and appellee: Leonila Ginez Nature of the case: Appeal from an order of the CFI of Pangasinan POnente: Felix, J. FACTS: 1) Benjamin bugayong (serviceman in the US) married to Leonila Ginez on aug 27, 1949

2)

Lived with the sisters of the husband, but before the latter left to report back to duty, he and his wife came to an agreement that leonila would stay with his sisters who later moved to sampaloc, manila 3) July 1951: Benjamin BUgayong began receiving letters from valeriana polnagco and other anonymous writers informing him of alleged acts of infidelity of wife 4) Plaintiff admitted that his wife also informed him by letter that a certain Eliong kissed her 5) Oct 1951: he sought advice of the navy chaplain as to the propriety of a legal separation between him and his wife on account of latters alleged acts of infidelity and he was directed to consult the navy legal dept 6) August 1952: went to Pangasinan and sought his wife whom he found in defendants grandmothers house (Mrs. Malalang) 7) She came along with him and proceeded and stayed for 2 nights and one day as husband and wife in a cousin of plaintiff-husband 8) Benjamin tried to verify from his wife the truth of the info he received that she committed adultery but wife packed up and lefttook as confirmation 9) Plaintiff exerted efforts to locate her and failing to find her went to Ilocos norte 10) Nov 18, 1952: filed complaint for legal separation against wife (CFI Pangasinan) 11) Wife denies the averments and setting up affirmative defenses 12) Motion to dismiss predicated on the ff grounds: a) assuming truth of allegations cause of action is barred by the statute of limitations b) the acts charged have been condoned by the plaintiff-husband c) the complaint failed to state a sufficient cause of action CFI: ordered the dismissal of the complaintground of condonation (ART 100); motion for reconsideration denied CA: ISSUE: Do the husbands attitude of sleeping with his wife for 2 nights and 1 day despite his alleged belief that she was unfaithful to him amount to a condonation of her previous and supposed adulterous acts? DECISION OF SC: order appealed from is AFFIRMED RATIO: 1) CONDONATION: forgiveness of a marital offense constituting a ground for legal separation; conditional forgiveness or remission by a husband or wife of a matrimonial offense which the latter has committed 2) The facts appearing on record are far from sufficient to establish the charge of adultery or infidelity amounting to adultery 3) Consider plaintiffs line of conduct under the assumption that he really believed that his wife is guilty of adulterylooked for wife lived with her for 2 nights and one day 4) Detailed examination of the testimony of plaintiff clearly shows that there was a condonation on the part of the husband 5) Condonation is implied from sexual intercourse after knowledge of the other infidelity (Shackleton v. Shackleton)it implies forgiveness 6) Condition is not to commit the offense againa breach of condition will revive the original offense as a ground for divorce 7) The conduct of the plaintiff despite his belief that wife was unfaithful, deprives him of any action for legal separation against the wife because his said act comes within the restriction of art 100 of the CC 8) GENERAL RULE: AMJUR: any cohabitation with the guilty party, after the commission of the offense and with the knowledge or belief on the part of the injured party of its commission will amount to conclusive evidence of condonationbut this presumption may be rebutted by evidence 3. RECRIMINATON Art 56 (4), FC CASE:

FACTS: 1) July 14, 19555: William filed suit to obtain legal separation from Juanita: ground: adultery 2) while he was interned by the Japanese invaders from 1942 to 1945 at UST internment camp, his wife engaged in adulterous relations with Carlos Fieldshe begot a baby girl 3) Brown learned of wifes misconduct iin 1945 4) Lived separately and later executed document liquidating their conjugal partnership and assigning certain properties to the erring wife as her share 5) complaint prayed for: a) confirmation of the liquidation agreement; b) for custody of children issued of the marriage; c) that the defendant be declared disqualified to succeed the plaintiff d) other remedy as might be just and equitable

BROWN v. YAMBAO No L- 10699 October 18, 1957 Plaintiff and appellant: William H. Brown Defendant and appellee: Juanita Yambao Nature of the case: Appeal from the judgment of CFI of Manila Ponente: Reyes, JBL, J.

CFI: declared the wife in default for failure to answer in due time despite service summons directed the City Fiscal to check collusion CITY FISCAL INVESTIGATON: 1) Brown after liberation had lived martially with another woman and had begotten children by her 2) CFI: denied the legal separation asked on the ground that while wifes adultery was established, Brown had incurred in a misconduct of similar nature that barred his right of action under Art 100 of the NCConly innocent spouse can claim legal sep; there had been consent and connivance and Browns action had prescribed under art 102 of the same Code (one year from date of cognizance of cause for legal sep)learned of wifes adultery (1945) but only filed action in 1955 BROWN CONTENDS: Fiscal should only check collusion but in actuality intervened for Juanita Yambao not the state DECISION OF SC: decision appealed from is AFFIRMED RATIO: 1) collusion in matrimonial cases being the act of married persons in procuring a divorce by mutual consent 2) it was legitimate for fiscal to bring to light any circumstance that could give rise to the inference that the wifes default was calculated or agreed upon, to enable appellant to obtain the decree of legal separation that he sought w/o regard to the legal merits of his casesuch as Browns cohabitation with another woman other than his wife 3) this bars him from filing the complaint for legal sep (art 100 of CConly innocent spouse) 4) ART 101- intervention of state attorneys in case of uncontested proceedings for legal sep and annulment of marriagesto emphasize that marriage is more than a mere contractit is a social institution in which the state is vitally interested, so that its continuation or interruption can not be made to depend upon the parties themselves 5) Appellants action was already barredBrown did not petition for legal separation proceedings until ten years after he learned of wifes adultery 6) The courts can take cognizance of prescription as a defense even though not raised by wifesince this involves public interest and it is a policy of our law that no such decree be issued if any legal obstacles appear upon record 7) Two established statutory grounds: commission of similar offense and prescriptionunnecessary to delve into the case and check on connivance and condonation on his part 4. COLLUSION Art 56 (3), (5) , FC Art 221 (3) and 100 CC CASES:

BROWN v. YAMBAO (same as above)

FACTS;

OCAMPO v. FLORENCIANO No L-13553 feb 23, 1960 Petitioner: Jose de Ocampo Respondent: Serafina Florenciano Nature of the case: petition for review by certiorari of decision of the CA Ponente: Bengzon, J. 1) 3) 4) 5) 6)

2)

7)
8)

action for legal sep by jose de ocampo against serafina his wife: ground: adultery April 5, 1938: marriage March 1951: adultery by serafina with jose arcalas June 1951; wife sent to manila to study beauty culture but discovered she was having affairs with other men as well June 1952: they lived separatelyshe left plaintiff after finishing course June 1955: nelson orzame Defendant made no answer the court defaulted her (art 101)directed the provincial fiscal to investigate whether or not collusion existed between the parties Defendant manifested her conformity to filing of complaint by husband for legal sep provided she is not charged with adultery in a criminal action

CFI: dismissed the casethere was confession of judgment plus condonation or consent to the adultery and prescription

CA: husbands right to legal sep on account of defendants adultery with jose arcalas had prescribed not filed within one year from march 1951 when plaintiff discovered her infidelity DECISION OF SC: reversed the appealed decision and decree a legal separation between these spouses, with all the consequent facts RATIO: 1) granted certiorari to consider the application of art 100 (innocent spouse) and 101 (no decree of legal sep shall be promulgated upon a stipulation of facts or by confession of judgment non appearancecollusion to be checked by fiscal or prosecuting attorney) of NCC 2) wifes conformity to complaint by husband--interpreting the facts virtually to mean a confession of judgment the Appellate court declared that under Art 101 legal separation could not be decreed this article merely prohibits a decree of separation upon a confession of judgment 3) CONFESSION OF JUDGMENT usually happens when the defendant appears in court and confesses the right of plaintiff to judgment or files a pleading expressly agreeing to the plaintiffs demand this did not occur 4) Even if statement of defendant contributed practically a confession of judgmentthere is evidence of adultery independently of such statementthe decree may and should be granted since it would not be based on her confession, but upon evidence presented by the plaintiff 5) What the law prohibits is a judgment based exclusively or mainly on defendants confession 6) The mere circumstance that defendant told the fiscal that she liked also to be legally separated from her husband is no obstacle to be successful prosecution of the action 7) When the court is informed that defendant equally desires the separation and admitted the commission of the offense, it should be doubly careful lest a collusion exists 8) CA did not find collusion 9) COLLUSIONmeans agreement; there would be collusion if the parties had arranged to make it a appear that a matrimonial offense had been committed although it was not or if the parties had connived to bring about a legal sep even in the absence pf grounds therefore 10) Collusion may not be inferred from the mere fact that the guilty party confesses to the offense and thus enables the other party to procure evidence necessary to prove it 11) Plaintiffs failure actively to search for defendant and take her home constituted condonation or consent to her adulterous relations with orzameit was not her duty to search for her to bring her home. Hers was the obligation to return G. COURT PROCEDURE Arts 58-60, FC CASES:

ARANETA v. CONCEPCION No L- 9667 July 31, 1956 Petitioner: Luis Ma. Araneta Respondents: Hon. Hermogenes Concepcion (judge of CFI Manila Br VI and Emma Benitez Araneta Nature of the case: Original action in the SC. Certiorari and/or mandamus with preliminary injunction Ponente: Labrador, J.

FACTS: 1) Petitioner filed action against his wife for legal sep ground: adultery 2) Defendant filed an omnibus petition to secure custody of their three minor children, a monthly support of P5000 for herself and said children and the return of her passport to enjoin plaintiff from ordering his hirelings from harassing and molesting her as well as pay for attorneys fees 3) Plaintiff denied misconduct imputed to him and alleging that defendant has abandoned the children conjugal properties were worth only P80,000 contends defendant is not entitled to the custody of the children as she has abandoned them and had committed adultery, that by her conduct she had become unfit to educate her children, being unstable in her emotions and unable to give the children to love, respect and care of a true mother and w/o means to educate them CFI: granted custody of the children to defendant and a monthly allowance of P2300 for support for her and the children, P300 for a house and P2000 as attorneys fees; reconsideration denied DECISION OF SC; Writ prayed for is ISSUED and the respondent judge or whosoever takes his place is ordered to proceed on the question of custody and support pendent elite in accordance with this opinion. The ocurts order fixing the alimony and requiring payment is REVERSED RATIO:

1)

main reason given by judge for refusing plaintiffs request that evidence be allowed to be introduced: art 103 of CC6 months allowancecooling off period 2) provision of code is mandatorycourt understands that the introduction of any evidence, be it on the merits of the case or on any incident, is prohibitedstatus quo to be preserved for this time 3) it may be noted that since 6 mos have elapsed since the filing of the petition may not be allowed reasons for granting the preliminary injunction should be given tat the scope of the art cited may be explained 4) cooling off period to make possible a reconciliation 5) but this practical expedient, necessary to carry out legislative policy does not have the effect of overriding other provisions such as the determination of the custody of children and alimony and support pendent elite according to the circumstances 6) the law expressly enjoins that these should be determined by the court according to the circumstances, if these are ignored or the courts close their eyes to actual facts, rank in justice may be casued 7) allegations of adultery letter of authenticity as evidenceabandonment of conjugal abodeevidence of all these disputed allegations should be allowed that the discretion of the court as to the custody and alimony pendent elite may be lawfully exercised 8) the rule is that all the provisions of the law even if apparenty contradictory, should be allowed to stand and given effect by reconciling them if necessary 9) thus determination of custody and alimony should be given effect and force provided it does not go to the extent of violating the policy of the cooling off period 10) evidence not affecting the casue of the separation, like the actual custody of children, the means conducive to their welfare and convenience during the pendency of the case, these should be allowed that the court may determine which is best for their custody RAMOS v. VAMENTA (same as above) DELA VINA v. VILLAREAL (same as above)
H. EFFECTS OF DECREE OF SEPARATION Arts 63-64, FC Art 372, CC PD 612 sec 11 1. Personal relations Art 61, FC Art 106 (1), CC 2. Custody of Children Cases:

CERVANTES v. FAJARDO GR NO. 79955 January 27,1989 Petitioners: In the matter of the petition for writ of habeas corpus of minor angelie anne Cervantes, nelson L. Cervantes and zenaida carreon Cervantes Respondents: Gina carreon Fajardo and Conrado fajardo Nature of the case: petition for writ of habeas corpus re: Angelie Anne Cervantes Ponente: Padilla, J. FACTS: 1) oct 5, 1987: thru resolution: court resolved to issue the writ of returnable to the exec judge, RTC of Pasig directed to hear the case and submit his report and recommendation to the court

2)

RECOMMENDATION: minor was born on Feb 14, 1987 to respondents Conrado Fajardo and Gina Carreon (common law husband and wife) respondents offered the child for adoption to Gina Carreons sister and brother in law, herein petitioners Zenaida Carreon Cervantes and Nelson Cervantes (spouses who took care and custody of the child when she was barely 2 weeks old - An affidavit of Consent to the adoption of the child by herein petitioners, was also executed by respondent Gina Carreon on APRIL 29,1987 TC of RIZAL: rendered decision granting the petition for adoption filed by herein petitioners over the child the child was then known as ANgelie Anne Fajardo ordered that the child be freed from parental authority of her natural parents as well as from legal obligation and maintenance to them and that from now on shall be for all legal intents and purposes, known as Angelie Anne Cervantes, a child of herein petitioners and capable of inheriting their estate

3) 4) 5)
6) 7)

mArch or April 1987: adoptive parents (petitioners) received a letter from the respondents demanding to be paid the amount of P150,000 otherwise they would get their child back petitioners refused to accede to demand Sept 11, 1987: while petitioners were out at workrespondents took the child from her yaya at petitioners residence in Angono Rizal-pretext she was instructed to do so by her mother Petitioner demanded the return of the childGina carreon refusedshe had no desire to give up her child for adoption and affidavit of consent to the adoption was not fully explained to herasking for P150000 for return of child Felisa Tansingco: social worker: interviewed Gina Carreon: respondet manifested to the social worker her desire to have the child adopted by the petitioners

DECISION OF SC: petition is GRANTED. Custody and care of the minor ANgelie Anne Cervantes are hereby granted to petitioners to whom they properly belong and respondents are orderd to deliver said minor to the petitioners immediately upon notice thereof RATIO: 1) in all cases involving the custody, care, education and property of children, the latters welfare is paramount 2) the provision that no mother shall be separated from a child under five y/o will not apply where the court finds compelling reasons to rule otherwiseforemost consideration is the moral, physical and social welfare of the child concerned, taking into account the resources and moral as well as social standing of the contending parties 3) it is undisputed that respondent Conrado Fajardo is legally married to a woman other than respondent and his relationship with latter is a common law husband and wife relationship 4) respondent Gina carreon had previously given birth to another child by another married man with whom she lived for almost 3 years but who eventually left her and vanished 5) petitioners who are legally married appear to be morally, physically and financially and socially capable of supporting the minor and giving her a future better than the natural motherjobless and maintains illicit relations with a married man 6) minor has been legally adopted by petitioners with full knowledge and consent of respondents 7) a decree of adoption took effectdissolving authority vested in natural parents over the adopted child except where adopting parent is the spouse of the batural parent of adoptedparental authority shall be exercised jointly by both spouses 8) the adopting parents have the right to the care and custody of the adopted child and exercise parental authority and responsibility over him

ESPIRITU v. CA GR NO. 115640 March 15, 1995 Petitioner: Reynaldo Espiritu and GUillerma Layug Respondent: CA and teresita Masauding Nature of the case: petition for review of the decision of CA Ponente: Melo, J. FACTS; 1) petitioner and respondent first met sometime in 1976 in Iligan 2) Reynaldo was workin gat the National Steel Corp and Teresita as nurse in a local hospital 3) Teresita left for LA to work as nurseacquired immigrant status

4) 5) 6) 7)

1984: Reynaldo was snet by employer to Pennsylvania (liaison officer) They began to maintain a common law relationship of husband and wife Daughter: Rosalind Therese was born (aug 16, 1986) Oct 7, 1987: they got married while vacationing in the Philsreturned to USsecond child born: Reginald Vince Jan 12, 1988 8) They decided to separate in 1990 (Teresita blames Reynaldonagging about money; Reynaldo says teresita is a spendthrift) 9) Teresita left reynaldo and the children-went back to California but she claims she kept in touch with the children 10) Reynaldo brought children to the phils but since still assigned in Pittsburgh he left his children temporarily with his sister GUillerma layug, co-petitioner and her family 11) Teresita claims she did immediately follow her children because Reynaldo filed a criminal case for bigamy against her and she was afraid of being arrested 12) Teresita returned to phils in dec 8,1992 and filed petition for writ of habeas corpus against petitioners to gain custody over the children ISSUE: who between the mother and father, is more suitable and better qualified in helping the children to grow into responsible, wel-adjusted and happy young adulthood TC: dismissed the petition; suspended teresitas parental authority over Rosalind and Reginald and declared Reynaldo to have sole parental authority over them but with visitation rights to be agreed upon by the parties and to be approved by the court CA:reversed the TCs decisiongave custody to teresita and visitation rights to reynaldo during weekends DECISION OF SC: the petition is GRANTED. Decision of CA is REVERSED and SET ASIDE and decision of RTC awarding custody of the minors to their father is REINSTATED RATIO: 1) ART 363 of CCin all questions of custody, care,education and property of children. Latters welfare shall be paramount..no mother shall be separated. Under 7 y/o 2) Art 213: choice of child be respected if he/she is over 7 unless parent chosen is unfit 3) Justice Diy believes that child below 7 should be awarded to mother even if latter is a prostitute or is unfaithful to husband 4) CA was undul;y swayed by abstract presumption of law rather than an appreciation of relevant facts choosing parent is not a ministerial function simply determined by age of minor child 5) Paramount criterion is childs interest regardless of age 6) Discretion is given to the court to decide who can best assure the welfare of the child and award custody on the basis of that consideration 7) In ascertaining the best interest of the child, the courts are mandated by the FC to take into account all relevant consideration 8) Presumption if below 7, mother is the best custodianbut not conclusive it can be overcome by compelling reasons 9) If over 10: choice of child is to be respected 10) Both children are now over 7 11) Error of CA; did not scrutinize records to discover choice of children, verify whether parent is unfit or fit, it simply followed statutory presumptions and general propositions applicable to ordinary or common situations 12) Tests made revealed that Rosalind had bad feelings with her mothershe saw her mom kissing and hugging a bad man who worked for her father and lived in their houseteresitas morality is questionable, emotionally stable and with ebullient temper 13) Child found suffering from emotional shock-more attached to her yayatravel clearance was even denied 14) The matterof custody is not permanent and unalterable. If the parent who was given custody suffers a future character change and becomes unfit, the matter of custody can always be re-examined and adjusted 15) Inclined to sustain findings of TCgave greater attention to choice of child and considered all relevant details and factors bearing on the issue of custody 16) Teresita does not deny that she was legally married to Roberto Lustado on dec 17, 1984 in California, less than a year later, she had already driven across the continental United States to commence living with another man, petitioner Reynaldo in Pittsburgh she tried to picture Reynaldo as a rapistwhile married with Reynaldo had illicit relationships with other manperdencio Gonzales right there in the house of petitioner and respondentshe left conjugal home CELIS v. CAFUIR No L 3352 June 12, 1950 Petitioner and appellees: Ileana A. celis et al Respondents and appellants: Soledad Cafuir et al

Nature of the case: Appeal from a judgment of the CFI of Manila Ponente: Montemayor, J FACTS: 1) 2) 3) 4) 5) 6) 7) 8) July 10, 1946: Ileana celis, single, gave birth at the North general hospital to a boy subsequently named Joel (John) cafuir Father seems to be unknownamerican liberation soldier Due to anger and displeasure of father of Ileana, 9 days after delivery. Joel was given to custody of the respondent who thereafter took him direct from hospital to her house, ministered to his needs and comfort and even employed a nurse to take care of him She visited the latters house but wnet back home Sept 17, 1948 Ileana marrrie dco-petitionerdecided to get Joel CAfuir Respodnet refused to give him petitioner sued hercorresponding writ of habeas corpus theory is that Ileana renounced her custody and patria potestas over her child and that now she may not get him back exhibits shown agreements between respondent and petitioner over joel cafuir

TC: ruled that there is no basis (in the exhibits) that shows that she has renounced the custody of her chills in favor of respondent DECISION OF SC: indemnify the respondents P5,513.15 in a separate suit to be filed; dispositive part of the decision not sheriff but respondent ordered to deliver the boy to petitioners Decision AFFIRMED with MODIFICATON RATIO: 1) 2) 3) respondents are strangers to the childnot related to him in any degree documents presented cannot be reasonably interpreted as having contemplated such renunciation she merely entrusted her son to soledad because she did not have the means to bring him upnot permanent renunciation 4) second: merely designated respondent as real guardian of the childalways or almost invariably understood as temporary 5) now that petitioner is emancipated from parental authority of her father and she has already been married and is now in a position to care for and support her own child this with the consent and desire of her husband who joins her in the petition there can no longer be any reason for depriving her of the custody of the boy 6) no one has the right to claim for adoption except mrs. Soledad cafuirsomething of the future it does not mean that she has already adopted him 7) Mother anxiously and desperately trying to get her son back to make up for lost time 8) The court should not take away from a mother the opportunity of bringing up her own child at the cost of extreme sacrifice due to poverty and lack of means 9) Relationship between a foster mother and a child is not natural but artificial 10) She is now married to a manwho can help her support her child 11) Whether a child should stay permanently with a kindly stranger or with his own mother is not to be determined alone by considerations of affluence or poverty

DISSENTING OPINION TUASON, J. denial of exhibits proves they may mean something renunciation of her custody over child patria potestas may be renouncedACT 3094

it was intention of the parties that soledad should have permanent possession and custody of the child necessitated to put it into writingevidence of intention permanent renunciation-child was baptized in quiapoattended by motheras john cafuir and soledad cafuir registered as mother in the certificate and soledads parents as maternal grandparents- for sure with consent of petitioner If unknown to her, her ignorance proves her lack of concern and interest for the child Evidence shows that it was respondent who has real, genuine affections for the child and who is ever willing and ready to make sacrifices for him While in custody of sheriffvisited every afternnon by respondent even sleeps with him, supplied and brought food to child day and night unlike the mother What suffering would the petitioner experience? The respondent would feel all the emotional and mental sufferingattachment and love for the child Abandonment of petitioner to her childselfish motives not conducive to well-being of the child are behind the action Too much presumptions and assumptions in favor of parentsassuming parental love is universal and immutable and that only mothers are capable of disinterested love and affections Reimbursement is not the issueit means nothing compared to the loss they experienced when they the boy from themtheir anguish cannot be measured and compensated by the indemnity to be given them

SANTOS, Sr. v. CA GR NO. 113054 March 16, 1995 Petitioner-appellant: Leouel Santos Sr. Respondents-appellees: CA, Spouses Leopoldo and Ofelia Bedia Nature of the case: petition for review of a decision of the CA Ponente: Romero, J. FACTS:

petitioner is an army lieutenant and Julia Bedia a nurse by profession married in 1986 in Iloilo 2) boy was born on July 18, 1987 3) from time of release from hospital boy was already in the custody of grandparents herein respondents and they were even the ones who paid the hospital bills 4) Julia bedia Santos left for the US in ay 1968 to workshe gives support to child 5) Petitioner claims he tried to look for her but failed to licate her 6) Private respondents claim that through deceit and false pretension (visiting) petitioner abducted the boy and clandestinely spirited him away to his hometown in bacong, negros oriental 7) Spouses bedia filed petition for care, custody and control of minor ward leouel santos jr bfore RTC of Iloilo city ISSUE: who should be properly awarded the custody of the child? RTC: awarded custody of child to his grandparents CA: granted custody of six-yr old Leuel Santos Jr to his maternal grandparents and not to his father Santos Sr.affirmed order of RTC PETITIONER AVERS: CA erred basis Art 214substitute parental authority is only granted if the parent is unfit but this was not shown in this casethey failed to prove it RESPONDENT CLAIMS: they can provide air conditioned rooms for child he cannot take care of childassigned to different places did not give any support or even a single centavo since before boy was entrusted to them by the mother who is their daughter petitioner used trickery and deceit in abducting the child in 1990 after being treated hospitably by respondents primary consideration should be the welfare and best interest of the child DECISION OF SC: Petition is GRANTED decision of CA and TC areREVERSED and SET ASIDE. Custody over Leouel Santos Jr is awarded to legitimate father RATIO:

1)

1)

custody accorded to parents springs from the exercise of parental authority (patria potestas)juridical institution whereby parents rightfully assume control and protection of their unemancipated children to the extent required by the latters needs 2) parental authority and responsibility are inalienable and may not be transferred except in cases authorized by law 3) right attached to parental authority being personal may be waived only in cases of adoption, guardianship and surrender to a childrens home or an orphan institution 4) when a parent entrusts the custody of a minor to another, such as a friend or godfather, even in a documentmerely temporary custody and it does not constitute renunciation of parental authority 5) the law disallows the same 6) law vests on the father and mother joint parental authority over the persons of their common childrenin case of absence or death of either parent the parent present shall still continue exercising parental authority 7) only in case of parents death, absence or unsuitability may substitute parental authority be exercised by the surviving grandparent 8) father is presentno decree of legal sepattempt to obtain annulment (psycho incapacity) failed 9) no sufficient bases for proving that petitioner is unfit to take custody of child (mil personnel, never gave financial support etc) 10) wealth is not the only deciding factor; legitimate parent preferred over grandparents 11) to award him custody of child would help enhance the bond between parent and child 12) his being a soldier not a bar for taking custody; trickery though not justifiable is still not a ground DAVID v. CA

GR NO. 11180 Nov 16, 1995 Petitoner: Daisie T. David Respondents: CA, Ramon Villar Nature of the case: petition for review of the decision of CA POnente: Mendoza, J. FACTS: 1) petitioner (secretary of private respondent) had an intimate relationship with respondent who is a married man, father of 4 children, all grown up 2) relationship resulted to a son (Christopher J) and two daughters (Christine and Cathy Mae) 3) relationship became known to private respondents wife when daisie brought Christopher to villars house in angeles city 4) children of daisie were freely brought to villars houseaccepted by his legal family 5) summer 1991: vilalr asked daisie to allow Christopher to go with his family in boracay (6 years of age) 6) after the trip villar refused to give back Christopher enrolled him at the Holy family Academy for the next shool year 7) July 30, 1991 Daisie filed petition for habeas corpus n behalf of Christopher RTC: favored petitioner and against respondent custody given to natural mother temporary support from father (3000 a month) CA; reversed; dismissed petitionwrit applicable only when parents are married to each other but separatedsince joint parental authority existsthis does not hold true in adulterous relationships - question of custody should be brought in a case singularly filed for the purposeTC did not acquire jurisdiction over the minor children of the petitioner-appellee and respondent-appellant and therefore cannot properly provide for support respondent is financially well-off, very rich businessmanbest interest of Christopher to temporarily remain with respondent until issue of custody is finally determined DECISION OF SC: decision of CA is REVERSED and private respondent is ORDERED to deliver the minor to custody of mother and give him temporary support of P3000 a month pending the fixing of the amount of support in appropriate action RATIO:

1)
2) 3) 4) 5) 6) 7) 8) 9) 10) 11) 12) 13)

Rule 102 of Rules of Court: writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty or by which the rightful custody of any person is withheld from the person entitled thereto True that determination of right for custody of minor children is relevant in cases where the parents are married and separated It does not follow however, that is cannot arise in any other situation Christopher is an illegitimate child: art 176 of FC, he is under the parental authority of his mother, the petitioner, who as a consequence of such authority is entitled to have custody of him, since petitioner has been deprived of her rightful custody of her child, she is entitled to issuance of the writ of habeas corpus Rule 102 makes no distinction between case of mother separated from husband and mother of an illegitimate child who is vested with sole parental authority but deprived of custody of her child The fact that respondent recognized the minor child may be aground for ordering him to support the latter but not for giving him custody of the child Reason of husband being well-off is not reason for depriving petitioner of custody over her son considering she was able to rear and support them on her own since they were bornvendor and secretary; receives help from parents and sister She is earning a decent living and able to support them on her own means Grant of support is justified by the fact the respondent has expressed willingness to support the minor childthe order of payment of allowance need not be conditioned on the grant to him of custody of the child ART 204one obliged to give support can fulfill obligation either y paying allowance fixed by court or receiving and maintaining in the family dwelling the person who is entitled to support unless in the latter case, there is moral or legal obstacle thereto Chris is less than 7 y/ocannot be taken away from mother unless it is needed or court finds reason to child categorically expressed preference to live with mother Art 213: courts must respect the choice of the child over 7 y/o unless chosen parent is unfit Indeed if private respondent loves his child, he should not condition the grant of support for him on the award of his custody to him MATUTE v. MACADAEG No L-9325 May 30, 1956 Petitioner: Rosario Matute

Respondents: Hon. HIginio Macadaeg (judge CFI Manila Br X) and Armando Medel Nature of the case: Original action in the SC. Certiorari and Prohibition with preliminary injunction POnente: Concepcion, J. Facts: 1) a legal separation complaint was filed by Armando medel against Rosario Matute: ground: adultery committed with his brother and her brother in law 2) CFI: found rosario guilty of the charge decreeing said legal separation and awarding custody of their four minor children to Armando (Florencia, Manuel, Carmelita and benito) 3) Armando went to the US leaving the children under the care of his sister (pilar Medel) in whose house rosario subsequently lived in order to be with her offspring 4) Armando returned late in 1954 5) Children were enrolled in a school in Davaojoined their father in Cebu in March 1955 6) With his permission, Rosario brought the children ro Manila in April to attend the funeral of her father 7) Armando consented with condition that she would return them within 2 weeks but rosario did not return them 8) June 10, 1955: she filed a motion for prayer that: a) court will issue an order awarding the custody of the children to the herein movant, their mother b) to order Armando medel to support the children mentioned 9) the three children (according to motion), florencia, manuel and Carmelita already 16, 14 and 12 respectively do not want to go back to their father because he is living w/ a woman other than their mother CFI: issued an order absolving rosario from the charge of contempt of court, she having secured armandos consent before brining the children to manila but denied her motion for custody and ordering her to deliver them to Armando within 24 hours from notice 10) rosario instituted against Armando and judge macadaeg the present action for certiorari and prohibition with preliminary injunction-grave abuse of discretion and there is no other plain, adequate and speedy remedy in the ordinary course of law 11) court issued the writ of preliminary injunction without bond PETITIONER CLAIMS a) she is the legitimate mother and children wished to stay with her b) three of the children over 10 years of agerule 100 sec 6 of rules of courtheed their choice of parent unless unfit c) act of infidelity of which she was found guilty does not involve moral depravity d) it was a thing of the past and not the present e) respondent medel unfitliving with another woman (paz Jesusa Concepcion) f) although he married the latter after securing divorce in US=--invalid divorcenull and void marriage bigamy DECISION OF SC: w/o prejudice to such appropriate action as petitioner may deem fit to take for the purpose of securing a review of the order of respondent judge or a modification of the award made in the decision of nov 6, 1952, relative to custody of the children or both, the petition is DENIED and the case DISMISSED writ of preliminary injunction issued is DISSOLVED RATIO: 1) neither the writ of certiorari nor that of prohibition lies unless the act complained of Has been performed w/o or in excess of jurisdiction or w/ grave abuse of discretion 2) respondent judge has jurisdiction to pass upon the issue raised by petitioner (custody of children and petition of respondent (contempt of court for petitioner) 3) the solution may be merely an error of judgment and not errors of jurisdiction 4) such errors do not affect the legality or validity of the order complained of 5) they may be reviewed by appeal not by writ of certiorari of prohibition 6) ordernot a grave abuse of discretionmerely enforces the award made in decision made on nov 6, 1952 (decree of legal sep and custody to husband) 7) order of custody unless and untl reviewed and modified must standno such modification made judge had not only the authority but also the duty to execute and implement said award 8) petitioner merely obtained his permission to bring them to manilaobtained an dhas possession of them in a precarious mannermedel may therefore demand the return at any time and she is bound to comply immediately with such demand 9) she can ask for review of the order or decision awarding custody of the minors to him and to ask that they be placed under her charge 10) adultery issueaffirmative assumption by the court 11) no grave abuse of discretion when the lower court impliedly deduced from these circumstances that poverty among other causes (no home of her own, supported by brothers, w/o means of livelihood) rendered petitioner unfit to take charge of her children or made it unwise to place them under he care

Art 63(3), 213 FC Art 106 (3), CC Art 17 Par (3) PD 603 3. Property relations Art 63(2), 63, FC Art 106(1), 107, CC CASE:

SABALONES v. CA GR NO. 106169 Feb 14, 1994 Petitioner: Samson T. Sabalones Respondents: CA and Remedios Gaviola- Sabalones Nature of the Case: petition for review of a decision of the CA POnente: Cruz, J.

FACTS:

1) 2) 3) 4)

5) 6) 7) a) b)

petitioner member of diplomatic service, left to his wife, respondent the administration of some of their conjugal properties for 15 years sabalones retired as ambassador in 1985 and came back to phils but no to wife and their children 4 years later, he filed an action for judicial authorization to sell a building and lot located at #17 Eisenhower St. Greenhills San Juan MM belonging to conjugal partnershipclaims he is weak now and sick needs it for hospitalization Private respondent opposed the authorization and filed a counterclaim for legal septhe house in greenhills was being occupied by her and their children and that they were depending for their support on the rentals from another conjugal property )a building and lot in forbes park which was on lease to nobuchimi izumi) Despite husbands retirement he never came back to them had a separate residence in Don Antonio heights Fairview, QC with Thelma Curameng and their three children Asked the court to grant the decree of legal separation and order the liquidation of the conjugal properties with forfeiture of her husbands share therein because of his adultery She also prayed that it enjoin the petitioner and his agents from: disturbing the occupants of the forbes park property disposing of or encumbering any of the conjugal properties

CFI: decreed the legal separation of the spouses and the forfeiture of the petitioners share in the conjugal properties, declaring as well that he was not entitled to support from his respondent wife 8) wife filed a motion for the issuance of writ of preliminary injunction to enjoin the petitioner from interfering with the admin of their properties in Greenhills and Forbes parksince husband had been harassing the tenant of the leased property 9) she complained that the petitioner had disposed of one of their valuable conjugal properties in the US in favor of his paramour to the prejudice of legitimate wife and children CA: granted the preliminary injunction prayed for by the wife ISSUE; ART 124no injunctive relief could be issued against one or the other because no right will be violatedadmin belong to spouses jointlyhusbands decision prevails in conflicts if one is incapacitated the other spouse assumes sole powers of admin failure to appoint admin Art 61 of CC

DECISION OF SC: petition is DENIED for lack of merit RATIO: 1) 2) 3) pending the appointment of an administrator over the whole mass of conjugal assets, the respondent court was justified in allowing the wife to continue with her administration correct that in enjoining the petitioner from interfering with his wifes administration pending resolution of the appeal Art 61: states that after a petition for legal sep has been filed the trial court shall in the absence of a written agreement between the couple, appoint either one of the spouses or a third person to act as administrator Designation was implicit in the decision of trial court denying the petitioner any share in the conjugal properties and thus disqualifying him to be administratoraffirmed by CA Wirt may be issued to prevent future wrongs although no right has yet been violated Court notes that wife has been administering the properties for almost 19 years Harassment of husband to tenant and husbands custody of other conjugal properties real and personal These shows that injunction is necessary to protect the interests of the private respondent and her children and prevent dissipation of the conjugal assetsit is prudent not to allow husband for the meantime to participate in management

4)
5) 6)

7) 8)

9)

Writ allowed wife to continue administering the properties for the meantime w/o interference of husband pending express designation of the administrator in accordance with art 61 of the CC

4. Support Art 198, FC Art 292, CC 5. Use of surname Art 372, CC CASE:

FACTS: 1) May 10, 1960: Elisea Leperal filed in CFI of Baguio a petition 2) March 24, 1939: married to Mr. Enrique R. Santamaria 3) January 18, 1958: Enrique was given a decree of legal separation from her and the said decision is now final 4) During her marriage with Enrique she naturally used Elisea Santamaria instead of her maiden name, that aside for her legal separation she also ceased to live with him for many years now 5) She wasnted to be allowed to change her name and/or be permitted to resume using her maiden name 6) Opposition was opposed by the City Attorney of Baguio on the ground that the same violates the provisions of Art 370 (should be 372) of the CC and that it is not sanctioned by the Rules of court CFI: Oct 31, 1960: denied the petition (art 372)requires the wife even if legally separated to continue using the name and surname oshe employed before legal sep Court then reconsidered its decision and granted the petition on the ground that to allow petitioner, who is a businesswoman decreed legally separate from her husband to use married name would give rise to confusion in her finances and the eventual liquidation of the conjugal assets CONTENTION OF REPUBLIC: a) statute is mandatory (Art 372 of the NCC) b) her married status is unaffected by the separation there being no severance of the vinculum c) policy of the law that the wife should continue to use the name indicative of her unchanged status for the benefit of all concerned DECISION OF SC: the order of the lower court is SET ASIDE and petition is DISMISSED RATIO: 1) the only reason relied upon for the change of name is the legal separation and their not living together for many years 2) it is doubtful to say whether Rule 103 which refers to change of name in general may prevail over specific provisions of art 372 of the NCC with regard to married women legally separated from husbands 3) legal separation not sufficient ground to justify change of name of petitioner for to hold otherwise would be to provide an easy circumvent of the mandatory provisions of the said art 4) extensive business interests creating confusion?in the first place, the were not the causes upon which the petition was based, and the issuance of decree of legal sep dissolved and liquidated the conjugal partnership automaticallythere could be no more occasion for an eventual liquidation of the conjugal assets

LAPERAL v. REPUBLIC No L 18008 Oct 30, 1962 Petitioner: Elisea Laperal Oppositor: Republic of the Phils Nature of the case: appeal from an order of the CFI of Baguio City POnente: Barrera, J.

6. Right to inherit Art 63(4), FC


Art 116 (4), CC

7. Cost of litigation Art 92 (10), 121 (9), FC Art 293, CC I. RECONCILIATION

1. How done Art 65, FC 2. Effects Art 66, 67, FC

Art 108, CC 3. Other Effects CASES:

MATUTE v. MACADALO LAPERAL v. REPUBLIC

J. DE FACTO SEPARATION 1. Effects Art 100, 127, 239, 242, 246, 247