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G.R. No.

L-57062 January 24, 1992


MARIA DEL ROSARIO MARIATEGUI, ET
AL., petitioners,
vs.
HON. COURT OF APPEALS, JACINTO
MARIATEGUI, JULIAN MARIATEGUI and
PAULINA MARIATEGUI,respondents.
BIDIN, J.:
This is a petition for review on certiorari of the
decision * of the Court of Appeals dated
December 24, 1980 in CA-G.R. No. 61841,
entitled "Jacinto Mariategui, et al. v. Maria del
Rosario Mariategui, et al.," reversing the
judgment of the then Court of First Instance of
Rizal, Branch VIII ** at Pasig, Metro Manila.
The undisputed facts are as follows:
Lupo Mariategui died without a will on June 26,
1953 (Brief for respondents, Rollo, pp. 116; 8).
During his lifetime, Lupo Mariategui contracted
three (3) marriages. With his first wife, Eusebia
Montellano, who died on November 8, 1904, he
begot four (4) children, namely: Baldomera,
Maria del Rosario, Urbana and Ireneo.
Baldomera died and was survived by her
children named Antero, Rufina, Catalino, Maria,
Gerardo, Virginia and Federico, all surnamed
Espina. Ireneo also died and left a son named
Ruperto. With his second wife, Flaviana
Montellano, he begot a daughter named
Cresenciana who was born on May 8, 1910
(Rollo, Annex "A", p. 36).
Lupo Mariategui and Felipa Velasco (Lupo's
third wife) got married sometime in 1930. They
had three children, namely: Jacinto, born on
July 3, 1929, Julian, born on February 16, 1931
and Paulina, born on April 19, 1938. Felipa
Velasco Mariategui died in 1941 (Rollo, Ibid).

At the time of his death, Lupo Mariategui left


certain properties which he acquired when he
was
still
unmarried
(Brief
for
respondents, Rollo,
pp.
116;
4).
These
properties are described in the complaint as
Lots Nos. 163, 66, 1346 and 156 of the
Muntinglupa Estate (Rollo, Annex "A", p. 39).

the complaint as unwilling defendants as they


would not like to join the suit as plaintiffs
although they acknowledged the status and
rights of the plaintiffs and agreed to the
partition of the parcels of land as well as the
accounting of their fruits (Ibid., Rollo, p. 8;
Record on Appeal, p. 4).

On December 2, 1967, Lupo's descendants by


his first and second marriages, namely, Maria
del Rosario, Urbana, Ruperto, Cresencia, all
surnamed Mariategui and Antero, Rufina,
Catalino, Maria, Gerardo, Virginia and Federico,
all surnamed Espina, executed a deed of
extrajudicial
partition
whereby
they
adjudicated unto themselves Lot No. 163 of the
Muntinglupa Estate. Thereafter, Lot No. 163
was the subject of a voluntary registration
proceedings filed by the adjudicatees under Act
No. 496, and the land registration court issued
a decree ordering the registration of the lot.
Thus, on April 1, 1971, OCT No. 8828 was
issued in the name of the above-mentioned
heirs. Subsequently, the registered owners
caused the subdivision of the said lot into Lots
Nos. 163-A to 163-H, for which separate
transfer certificates of title were issued to the
respective parties (Rollo, ibid).

The defendants (now petitioners) filed an


answer with counterclaim (Amended Record on
Appeal, p. 13). Thereafter, they filed a motion
to dismiss on the grounds of lack of cause of
action and prescription. They specifically
contended that the complaint was one for
recognition of natural children. On August 14,
1974, the motion to dismiss was denied by the
trial court, in an order the dispositive portion of
which reads:

On April 23, 1973, Lupo's children by his third


marriage with Felipa Velasco (Jacinto, Julian and
Paulina) filed with the lower court an amended
complaint claiming that Lot No. 163 together
with Lots Nos. 669, 1346 and 154 were owned
by their common father, Lupo Mariategui, and
that, with the adjudication of Lot No. 163 to
their co-heirs, they (children of the third
marriage) were deprived of their respective
shares in the lots. Plaintiffs pray for partition of
the estate of their deceased father and
annulment of the deed of extrajudicial partition
dated December 2, 1967 (Petition, Rollo, p. 10).
Cresencia Mariategui Abas, Flaviana Mariategui
Cabrera and Isabel Santos were impleaded in

It is therefore the opinion of the Court that


Articles 278 and 285 of the Civil Code cited by
counsel for the defendants are of erroneous
application to this case. The motion to dismiss
is therefore denied for lack of merit.
SO ORDERED. (Ibid, p. 37).
However, on February 16, 1977, the complaint
as well as petitioners' counterclaim were
dismissed by the trial court, in its decision
stating thus:
The plaintiffs' right to inherit depends upon the
acknowledgment or recognition of their
continuous enjoyment and possession of status
of children of their supposed father. The
evidence fails to sustain either premise, and it
is clear that this action cannot be sustained.
(Ibid, Rollo, pp. 67-68)
The plaintiffs elevated the case to the Court of
Appeals on the ground that the trial court
committed an error ". . . in not finding that the

parents of the appellants, Lupo Mariategui and


Felipa Velasco (were) lawfully married, and in
holding (that) they (appellants) are not
legitimate children of their said parents,
thereby divesting them of their inheritance . . .
" (Rollo, pp. 14-15).
On December 24, 1980, the Court of Appeals
rendered a decision declaring all the children
and descendants of Lupo Mariategui, including
appellants Jacinto, Julian and Paulina (children
of the third marriage) as entitled to equal
shares in the estate of Lupo Mariategui;
directing the adjudicatees in the extrajudicial
partition of real properties who eventually
acquired transfer certificates of title thereto, to
execute deeds of reconveyance in favor, and
for the shares, of Jacinto, Julian and Paulina
provided rights of innocent third persons are
not prejudiced otherwise the said adjudicatees
shall reimburse the said heirs the fair market
value of their shares; and directing all the
parties to submit to the lower court a project of
partition in the net estate of Lupo Mariategui
after payment of taxes, other government
charges and outstanding legal obligations.
The defendants-appellees filed a motion for
reconsideration of said decision but it was
denied for lack of merit. Hence, this petition
which was given due course by the court on
December 7, 1981.
The petitioners submit to the Court the
following issues: (a) whether or not prescription
barred private respondents' right to demand
the partition of the estate of Lupo Mariategui,
and (b) whether or not the private respondents,
who belatedly filed the action for recognition,
were able to prove their successional rights
over said estate. The resolution of these issues
hinges, however, on the resolution of the
preliminary matter, i.e., the nature of the
complaint filed by the private respondents.

The complaint alleged, among other things,


that "plaintiffs are the children of the deceased
spouses Lupo Mariategui . . . and Felipa
Velasco"; that "during his lifetime, Lupo
Mariategui had repeatedly acknowledged and
confirmed plaintiffs as his children and the
latter, in turn, have continuously enjoyed such
status since their birth"; and "on the basis of
their relationship to the deceased Lupo
Mariategui and in accordance with the law on
intestate succession, plaintiffs are entitled to
inherit shares in the foregoing estate (Record
on Appeal, pp. 5 & 6). It prayed, among others,
that plaintiffs be declared as children and heirs
of Lupo Mariategui and adjudication in favor of
plaintiffs their lawful shares in the estate of the
decedent (Ibid, p. 10).
A perusal of the entire allegations of the
complaint, however, shows that the action is
principally one of partition. The allegation with
respect to the status of the private
respondents was raised only collaterally to
assert their rights in the estate of the
deceased. Hence, the Court of Appeals
correctly adopted the settled rule that the
nature of an action filed in court is determined
by the facts alleged in the complaint
constituting the cause of action (Republic vs.
Estenzo, 158 SCRA 282 [1988]).
It has been held that, if the relief demanded is
not the proper one which may be granted
under the law, it does not characterize or
determine the nature of plaintiffs' action, and
the relief to which plaintiff is entitled based on
the facts alleged by him in his complaint,
although it is not the relief demanded, is what
determines the nature of the action (1 Moran,
p. 127, 1979 ed., citing Baguioro vs. Barrios, et
al., 77 Phil. 120).
With respect to the legal basis of private
respondents' demand for partition of the estate

of Lupo Mariategui, the Court of Appeals aptly


held that the private respondents are
legitimate children of the deceased.
Lupo Mariategui and Felipa Velasco were
alleged to have been lawfully married in or
about 1930. This fact is based on the
declaration communicated by Lupo Mariategui
to Jacinto who testified that "when (his) father
was still living, he was able to mention to (him)
that he and (his) mother were able to get
married before a Justice of the Peace of Taguig,
Rizal." The spouses deported themselves as
husband and wife, and were known in the
community to be such. Although no marriage
certificate was introduced to this effect, no
evidence was likewise offered to controvert
these facts. Moreover, the mere fact that no
record of the marriage exists does not
invalidate the marriage, provided all requisites
for its validity are present (People vs.
Borromeo, 133 SCRA 106 [1984]).
Under these circumstances, a marriage may be
presumed to have taken place between Lupo
and Felipa. The laws presume that a man and a
woman, deporting themselves as husband and
wife, have entered into a lawful contract of
marriage; that a child born in lawful wedlock,
there being no divorce, absolute or from bed
and board is legitimate; and that things have
happened according to the ordinary course of
nature and the ordinary habits of life (Section 5
(z), (bb), (cc), Rule 131, Rules of Court; Corpus
v. Corpus, 85 SCRA 567 [1978]; Saurnaba v.
Workmen's Compensation, 85 SCRA 502
[1978]; Alavado v. City Gov't. of Tacloban, 139
SCRA 230 [1985]; Reyes v. Court of Appeals,
135 SCRA 439 [1985]).
Courts look upon the presumption of marriage
with great favor as it is founded on the
following rationale:

The basis of human society throughout the


civilized world is that of marriage. Marriage in
this jurisdiction is not only a civil contract, but
it is a new relation, an institution in the
maintenance of which the public is deeply
interested. Consequently, every intendment of
the law leans toward legalizing matrimony.
Persons
dwelling
together
in
apparent
matrimony are presumed, in the absence of
any counterpresumption or evidence special to
that case, to be in fact married. The reason is
that such is the common order of society and if
the parties were not what they thus hold
themselves out as being, they would be living
in the constant violation of decency and of
law . . . (Adong vs. Cheong Seng Gee, 43 Phil.
43, 56 [1922] quoted in Alavado vs. City
Government of Tacloban, 139 SCRA 230
[1985]).

Article 172 of the said Code provides that the


filiation of legitimate children may be
established by the record of birth appearing in
the civil register or a final judgment or by the
open and continuous possession of the status
of a legitimate child.

So much so that once a man and a woman


have lived as husband and wife and such
relationship is not denied nor contradicted, the
presumption of their being married must be
admitted as a fact (Alavado v. City Gov't. of
Tacloban, supra).

While the trial court found Jacinto's testimonies


to be inconsequential and lacking in substance
as to certain dates and names of relatives with
whom their family resided, these are but minor
details. The nagging fact is that for a
considerable length of time and despite the
death of Felipa in 1941, the private
respondents and Lupo lived together until
Lupo's death in 1953. It should be noted that
even the trial court mentioned in its decision
the admission made in the affidavit of
Cresenciana Mariategui Abas, one of the
petitioners herein, that " . . . Jacinto, Julian and
Paulina Mariategui ay pawang mga kapatid ko
sa
ama . . ." (Exh. M, Record on Appeal, pp. 6566).

The Civil Code provides for the manner under


which legitimate filiation may be proven.
However, considering the effectivity of the
Family Code of the Philippines, the case at bar
must be decided under a new if not entirely
dissimilar set of rules because the parties have
been overtaken by events, to use the popular
phrase (Uyguangco vs. Court of Appeals, G.R.
No. 76873, October 26, 1989). Thus, under
Title VI of the Family Code, there are only two
classes of children legitimate and
illegitimate. The fine distinctions among
various types of illegitimate children have been
eliminated (Castro vs. Court of Appeals, 173
SCRA 656 [1989]).

Evidence on record proves the legitimate


filiation of the private respondents. Jacinto's
birth certificate is a record of birth referred to
in the said article. Again, no evidence which
tends to disprove facts contained therein was
adduced before the lower court. In the case of
the two other private respondents, Julian and
Paulina, they may not have presented in
evidence any of the documents required by
Article 172 but they continuously enjoyed the
status of children of Lupo Mariategui in the
same manner as their brother Jacinto.

In view of the foregoing, there can be no other


conclusion than that private respondents are
legitimate children and heirs of Lupo
Mariategui and therefore, the time limitation
prescribed in Article 285 for filing an action for
recognition is inapplicable to this case.

Corollarily, prescription does not run against


private respondents with respect to the filing of
the action for partition so long as the heirs for
whose benefit prescription is invoked, have not
expressly or impliedly repudiated the coownership. In other words, prescription of an
action for partition does not lie except when
the co-ownership is properly repudiated by the
co-owner
(Del
Banco
vs.
Intermediate
Appellate Court, 156 SCRA 55 [1987] citing
Jardin vs. Hollasco, 117 SCRA 532 [1982]).
Otherwise stated, a co-owner cannot acquire
by prescription the share of the other coowners absent a clear repudiation of coownership duly communicated to the other coowners (Mariano vs. De Vega, 148 SCRA 342
[1987]). Furthermore, an action to demand
partition is imprescriptible and cannot be
barred by laches (Del Banco vs. IAC, 156 SCRA
55 [1987]). On the other hand, an action for
partition may be seen to be at once an action
for declaration of co-ownership and for
segregation and conveyance of a determinate
portion of the property involved (Roque vs. IAC,
165 SCRA 118 [1988]).
Petitioners contend that they have repudiated
the co-ownership when they executed the
extrajudicial partition excluding the private
respondents and registered the properties in
their own names (Petition, p. 16; Rollo, p. 20).
However, no valid repudiation was made by
petitioners to the prejudice of private
respondents. Assuming petitioners' registration
of the subject lot in 1971 was an act of
repudiation of the co-ownership, prescription
had not yet set in when private respondents
filed in 1973 the present action for partition
(Ceniza vs. C.A., 181 SCRA 552 [1990]).
In their complaint, private respondents averred
that in spite of their demands, petitioners,
except the unwilling defendants in the lower

court, failed and refused to acknowledge and


convey their lawful shares in the estate of their
father (Record on Appeal, p. 6). This allegation,
though denied by the petitioners in their
answer (Ibid, p. 14), was never successfully
refuted by them. Put differently, in spite of
petitioners' undisputed knowledge of their
relationship to private respondents who are
therefore their co-heirs, petitioners fraudulently
withheld private respondent's share in the
estate of Lupo Mariategui. According to
respondent Jacinto, since 1962, he had been
inquiring from petitioner Maria del Rosario
about their (respondents) share in the property
left by their deceased father and had been
assured by the latter (Maria del Rosario) not to
worry because they will get some shares. As a
matter of fact, sometime in 1969, Jacinto
constructed a house where he now resides on
Lot No. 163 without any complaint from
petitioners.

It is true that registration under the Torrens


system is constructive notice of title, but it has
likewise been our holding that the Torrens title
does not furnish shield for fraud. It is therefore
no argument to say that the act of registration
is equivalent to notice of repudiation, assuming
there was one, notwithstanding the longstanding rule that registration operates as a
universal notice of title.

Petitioners' registration of the properties in


their names in 1971 did not operate as a valid
repudiation of the co-ownership. In Adille
vs. Court of Appeals (157 SCRA 455, 461-462
[1988]), the Court held:

WHEREFORE, the petition is DENIED and the


assailed decision of the Court of Appeals dated
December 24, 1980 is Affirmed.

Prescription, as a mode of terminating a


relation of co-ownership, must have been
preceded by repudiation (of the co-ownership).
The act of repudiation, in turn, is subject to
certain conditions: (1) a co-owner repudiates
the co-ownership; (2) such an act of
repudiation is clearly made known to the other
co-owners; (3) the evidence thereon is clear
and conclusive; and (4) he has been in
possession
through
open,
continuous,
exclusive, and notorious possession of the
property for the period required by law.
xxx xxx xxx

Inasmuch as petitioners registered the


properties in their names in fraud of their coheirs prescription can only be deemed to have
commenced from the time private respondents
discovered the petitioners' act of defraudation
(Adille vs. Court of Appeals, supra). Hence,
prescription definitely may not be invoked by
petitioners
because
private
respondents
commenced the instant action barely two
months after learning that petitioners had
registered in their names the lots involved.

SO ORDERED.

JOSE
R.
PAGANIBAN, complainant,
vs.
ELIAS BORROMEO, respondent.
The
Respondent
in
his
own
behalf.
Office of the Solicitor-General Hilado for the
Government.
MALCOLM, J.:
These proceedings looking to the disbarment of
the respondent attorney are before us on the
representations of the Solicitor-General that
the respondent appear and show cause, if any
he has, why he should not be proceeded
against for professional malpractice. The
respondent admits that, in his capacity as
notary public he legalized the document which
is the basis of the complaint against him, and
that the document contains provisions contrary
to law, morals and good customs, but by way
of defense disclaims any previous knowledge
of the illegal character of the document.
On November 25, 1931, Alejandro Pabro and
Juana Mappala husband and wife, subscribed a
contract before the notary public Elias
Borromeo, who was at that time a regularly
admitted member of the Philippine Bar. The
contract in question had been prepared by the
municipal secretary of Naguilian, Isabela.
Attorney Borromeo cooperated in the execution
of the document and had, at lease, some
knowledge of its contents, although he may not
have been fully informed because of a
difference in dialect. The contract in substance
purported to formulate an agreement between
the husband and the wife which permitted the
husband to take unto himself a concubine and
the wife to live in adulterous relationship with
another man, without opposition from either
one of them.

Two questions are suggested by the record.


The first concerns the points of whether or not
the contract sanctioned an illicit and immoral
purpose. The second concerns the point, on the
supposition that the contract did sanction an
illicit and immoral purpose, of whether a lawyer
may be disciplined for misconduct as a notary
public.
The contract of the spouses, it will be recalled,
was executed at a time when the Spanish Penal
Code, as modified by Act No. 1773 was in force.
Conceding, however, that the more liberal
provisions of the Revised Penal Code should be
given application, it is herein provided that the
consent or pardon given by the offended party
constitutes a bar to prosecution for adultery or
concubinage. In this instance, if the spouses
should retain their present frame of mind, no
prosecution of either one by the other could be
expected. Nevertheless, we think it far from
the purpose of the Legislature to legalize
adultery and concubinage. They still remain
crimes, with the qualification that prosecution
cannot be instituted if the offended party
consent to the act or pardon the offender. This
is a matter of future contingency and is not
matter for legalization in wanton disregard of
good morals. We hold the contract to contain
provisions contrary to law, morals and public
order, and as a consequence not judicially
recognizable.
Passing to the second question, we think there
can be no question as to the right of the court
to discipline an attorney who, in his capacity as
notary public, has been guilty of misconduct. To
the office of notary public there is not attached
such importance under present conditions as
under the Spanish administration. Even so, the
notary public exercise duties calling for
carefulness and faithfulness. It is for the notary
to inform himself of the facts to which he
intends to certify, and to take part in no illegal

enterprise. The notary public is usually a


person who has been admitted to the practice
of law, and such, in the commingling of his
duties as notary and lawyer, must be held
responsible for both. We are led to hold that a
member of the bar who performs an act as a
notary public of a disgraceful or immoral
character may be held to account by the court
even to the extent of disbarment. (See 2
Thornton on Attorneys At Law, pp. 1258,
1259; In re Chappell [1909], 115 N.Y.S., 868; In
re Bernard
[1912],
136
N.Y.S.,
185; In
re Arctander [1879], 1 N.W., 43; In re Terrell
[1903], 2 Phil., 266; In re Adriatico [1906], 7
Phil., 173; U.S. vs. Kilayko [1916], 34 Phil., 796;
De la Cruz vs. Capinpin and Albea [1918], 38
Phil., 492.)
It now becomes necessary to pronounce
sentence. As mitigating circumstances, there
may be taken into consideration (1) that the
attorney may not have realized the full purport
of
the document to which he took
acknowledgment, (2) that no falsification of
facts was attempted, and (3) that the
commission of the respondent as a notary
public has been revoked. Accordingly, we are
disposed in this case to exercise clemency and
to confine our discipline of the respondent to
severe censure. So ordered.

.M. No. 804-CJ May 19, 1975


SATURNINO
SELANOVA, complainant,
vs.
ALEJANDRO E. MENDOZA, City Judge of
Mandaue City, respondent.
AQUINO,
Saturnino Selanova charged Judge Alejandro E.
Mendoza of Mandaue City with gross ignorance
of the law for having prepared and ratified a
document
dated
November
21,
1972,
extrajudicially
liquidating
the
conjugal
partnership of the complainant and his wife,
Avelina Ceniza. One condition of the liquidation
was that either spouse (as the case may be)
would withdraw the complaint for adultery or
concubinage which each had filed against the
other and that they waived their "right to
prosecute each other for whatever acts of
infidelity" either one would commit against the
other.
Judge Mendoza in his comment on the charge
purposed to convey the impression that he was
aware of the invalidity of the agreement but he
nevertheless ratified it and gave it his nihil
obstat on the assurance of the spouses that
they would ask the Court of First Instance of
Negros Oriental (where they were residing) to
approve the agreement. That pretension is
disbelieved by the Judicial Consultant.
Respondent Judge alleged that he relied on the
provision that "the husband and the wife may
agree upon the dissolution of the conjugal
partnership during the marriage, subject to
judicial approval" (Par. 4, Art. 191, Civil Code).
He argues that to give the prohibition against
an extrajudicial liquidation of the conjugal
partnership
during
the
marriage
"an

unqualified and literal legal construction" would


lender nugatory the aforequoted provisions of
article 191. He cites Lacson vs. San JoseLacson, L-23482, L-23767 and L-24259, August
30, 1968, 24 SCRA 837 as authority for the
propriety of an extrajudicial agreement for the
dissolution during the marriage of the conjugal
partnership as long as the agreement is
subsequently approved by the court.
However, the respondent overlooks the
unmistakable
ruling
of
this
Court
in
the Lacson case that judicial sanction for the
dissolution of the conjugal partnership during
the marriage should be "secured beforehand."
Respondent Judge surmised that Selanova's
complaint was instigated by a lawyer whose
case was adversely decided by the Judge. That
speculation was denied by Selanova who also
belied Judge Mendoza's version that the
complainant and his wife, Avelina Ceniza,
"together with their parents", came to the
office of Judge Mendoza and solicited his help
in the amicable settlement of their marital
imbroglio.
According to Selanova, in 1972 his father was
already dead and his mother was ninety-one
years old. They could not possibly have come
to Judge Mendoza's office. Selanova said that
only he and his brother-in-law, Arcadio Ceniza,
an alleged classmate of Judge Mendoza, were
the persons who went to the Judge's office. But
that
version
may
be
inaccurate
and
oversimplified, considering that the agreement
was signed before Judge Mendoza not only by
Selanova but also by his wife and two
witnesses, Lamberts M. Ceniza and Florencio C.
Pono.
Judge Mendoza retired on February 27, 1975
when he reached the age of seventy. In his
letter of April 8, 1975 he asked for a

compassionate view of his case considering his


forty-three years' service in the government
(he started his public career in 1932 as a
policeman and became a justice of the peace
in 1954). He also cited the financial
predicament of his big family occasioned by
the delay in the payment of his retirement and
terminal leave pay.
The case was not referred to a Judge of the
Court of First Instance for investigation
because actually no factual issues necessitate
a hearing and presentation of evidence.
Respondent Judge admitted that he was
responsible for the execution of the questioned
document, an extrajudicial "Liquidation of
Conjugal
Properties",
which
he
caused
complainant Saturnino Selanova and his wife,
Avelina Ceniza, to sign.
In that instrument Judge Mendoza divided the
two pieces of conjugal assets of the spouses by
allocating to the husband a thirteen-hectare
riceland and to the wife the residential house
and lot. The last paragraph of the instrument,
which licensed either spouse to commit any act
of infidelity, was in effect a ratification of their
personal separation. The agreement in
question is void because it contravenes the
following provisions of the Civil Code:t.
hqw
ART. 221. The following shall be void and of no
effect:
(1) Any contract for personal
between husband and wife;

separation

(2) Every extrajudicial agreement, during


marriage, for the dissolution of the conjugal
partnership of gains or of the absolute
community of property between husband and
wife;

xxx xxx xxx


Even before the enactment of the new Civil
Code, this Court held that the extrajudicial
dissolution of the conjugal partnership without
judicial approval was void (Quintana vs. Lerma,
24 Phil. 285; De Luna vs. Linatoc, 74 Phil. 15,
De La Rosa vs. Barruga, L-2368, June 30, 1950,
4 ROP Digest 171, sec. 29).
On the other hand, disciplinary action had been
taken against notaries who authenticated
agreements for the personal separation of
spouses wherein either spouse was permitted
to commit acts of infidelity.
Thus, in Panganiban vs. Borromeo, 58 Phil.
367, a lawyer was severely censured for having
notarized
a
document
containing
"an
agreement between the husband and the wife
which permitted the husband to take unto
himself a concubine and the wife to live in
adulterous relationship with another man,
without opposition from either one of them".
The document was prepared by another
person.
In that case this Court noted that while
adultery and concubinage are private crimes,
"they still remain crimes" and a contract
legalizing their commission is "contrary to law,
morals and public order, and as a consequence
not judicially recognizable". Since the notary's
commission was already revoked, this Court did
not disbar him. The fact that he "may not have
realized the full purport of the document to
which
he
took
acknowledgment'
was
considered mitigating.
Severe censure was also administered to a
notary of Cebu City who ratified a document
entitled "Legal Separation", executed by
husband and wife, wherein they agreed that
they separated mutually and voluntarily, that

they renounced their rights and obligations,


and that they authorized each other to
remarry, renouncing any action to which they
might be entitled and each promising not to be
a witness against the other. Those covenants
are contrary to law, morals and good customs
and tend to subvert the vital foundation of the
legitimate family (Biton vs. Momongon, 62 Phil.
7).
In
the Santiago case
respondent
lawyer
prepared for a married couple (who had been
separated for nine years) a document wherein
it was stipulated, inter alia, that they
authorized each other to marry again, at the
same time renouncing whatever right of action
one might have against the other. When the
husband inquired if there would be no trouble,
respondent lawyer pointed to his diploma
which was hanging on the wall and said: "I
would tear that off if this document turns out
not to be valid." The husband remarried. The
respondent was suspended from the practice of
law for one year for having been ignorant of
the law or being careless in giving legal advice
(In reSantiago, 70 Phil. 66).
In Balinon vs. De Leon, 94 Phil. 277, Attorney
Celestino M. de Leon prepared an affidavit
wherein he declared that he was married to
Vertudes Marquez, from whom he had been
separated, their conjugal partnership having
been dissolved, and that he was consorting
with Regina S. Balinon his "new found lifepartner," to whom he would "remain loyal and
faithful" "as a lawful and devoted loving
husband for the rest of" his life "at all costs".
Attorney Justo T. Velayo notarized that affidavit.
This Court reprimanded Velayo and suspended
De Leon from the practice of law for three
years.
In the instant case, respondent Judge, due to
his unawareness of the legal prohibition

against contracts for the personal separation of


husband and wife and for the extrajudicial
dissolution of their conjugal partnership,
prepared the said void agreement which was
acknowledged before him as "City Judge and
Notary Public Ex-Officio". (Because he was
admitted to the bar in 1948 and, consequently,
he did not study the new Civil Code in the law
school, he might not have been cognizant of its
aforecited article 221).
Taking into account that circumstance and his
apparent good faith and honest desire to
terminate the marital conflict between the
complainant and his wife, we are of the opinion
that a drastic penalty should not be imposed
on him. But he deserves a severe censure for
his mistake in preparing and notarizing the
aforementioned
immoral
and
illegal
agreement. Such severe reprimand should not
be an obstacle to his enjoyment of retirement
privileges, assuming that there are no causes
for depriving him of such benefits.
WHEREFORE,
censured.
SO ORDERED.

the

respondent

is

severely

G.R. No. 80965 June 6, 1990


SYLVIA LICHAUCO DE LEON, petitioner,
vs.
THE HON. COURT OF APPEALS, MACARIA
DE
LEON
AND
JOSE
VICENTE
DE
LEON, respondents.
MEDIALDEA, J.:
This is a petition for review on certiorari of the
decision of the Court of Appeals in CA-G.R. CV
No. 06649 dated June 30, 1987 the decision of
the Regional Trial Court of Pasig in SP Proc. No.
8492 dated December 29, 1983; and its
resolution dated November 24, 1987 denying
the motion for reconsideration.
The antecedent facts are as follows:
On October 18, 1969, private respondent Jose
Vicente De Leon and petitioner Sylvia Lichauco
De Leon were united in wedlock before the
Municipal Mayor of Binangonan, Rizal. On
August 28, 1971, a child named Susana L. De
Leon was born from this union.
Sometime in October, 1972, a de facto
separation between the spouses occured due
to irreconcilable marital differences, with Sylvia
leaving the conjugal home. Sometime in March,
1973, Sylvia went to the United States where
she obtained American citizenship.
On November 23, 1973, Sylvia filed with the
Superior Court of California, County of San
Francisco, a petition for dissolution of marriage
against Jose Vicente. In the said divorce
proceedings, Sylvia also filed claims for support
and distribution of properties. It appears,
however, that since Jose Vicente was then a
Philippine resident and did not have any assets
in the United States, Sylvia chose to hold in

abeyance the divorce proceedings, and in the


meantime, concentrated her efforts to obtain
some sort of property settlements with Jose
Vicente in the Philippines.
Thus, on March 16, 1977, Sylvia succeeded in
entering into a Letter-Agreement with her
mother-in-law, private respondent Macaria De
Leon, which We quote in full, as follows (pp. 4042, Rollo):
March
Mrs.
Macaria
12
Jacaranda,
Makati,

16,
Madrigal
de
North
Forbes
Metro

1977
Leon
Park
Manila

Dear Dora Macaria:


This
letter
represents
a
contractual
undertaking among (A) the undersigned (B)
your son, Mr. Jose Vicente de Leon, represented
by you, and (C) yourself in your personal
capacity.
You hereby bind yourself jointly and severally
to answer for the undertakings of Joe Vincent
under this contract.
In consideration for a peaceful and amicable
termination
of
relations
between
the
undersigned and her lawfully wedded husband,
Jose Vicente de Leon, your son, the following
are agreed upon:
Obligations of Jose Vicente de Leon and/ or
yourself in a joint and several capacity:
1. To deliver with clear title free from all liens
and encumbrances and subject to no claims in
any form whatsoever the following properties
to Sylvia Lichauco-de Leon hereinafter referred
to as the wife:

A. Suite 11-C, Avalon Condominium, Ortigas


Ave., corner Xavier St., Mandaluyong, Rizal,
Philippines.
B. Apartment 702, Wack Wack Condominium,
Mandaluyong, Rizal, Philippines.
C. The rights to assignment of 2 Ayala lots in
Alabang, Rizal (Corner lots, 801 s q. meters
each). (Fully paid).
D. 2470 Wexford Ave., South San Francisco,
California, U.S.A. (Lot 18 Block 22 Westborough
Unit No. 2). (Fully paid).
E. 1) The sum of One Hundred Thousand Pesos
(P100,000)
2) $30,000
3) $5,000
2. To give monthly support payable six (6)
months in advance every year to any
designated assignee of the wife for the care
and upbringing of Susana Lichauco de Leon
which is hereby pegged at the exchange rate of
7.50 to the dollar subject to adjustments in the
event of monetary exchange fluctuations.
Subsequent increase on actual need upon
negotiation.
3. To respect the custody of said minor
daughter as pertaining exclusively to the wife
except as herein provided.
Obligations of the wife:
1. To agree to a judicial separation of property
in accordance with Philippine law and in this
connection to do all that may be necessary to
secure said separation of property including

her approval in writing of a joint petition or


consent decree.
2. To amend her complaint in the United States
before the Federal Court of California, U.S.A.
entitled "Sylvia Lichauco de Leon vs. Jose V. de
Leon" in a manner compatible with the
objectives of this herein agreement. It is the
stated objective of this agreement that said
divorce proceedings will continue.
3. All the properties herein described for
assignment to the wife must be assigned to
Sylvia Lichauco de Leon upon the decree of the
Court of First Instance in the Joint Petition for
Separation of Property; except for the
P100,000, $30,000 and $5,000 which will be
paid immediately.
4. This contract is intended to be applicable
both in the Republic of the Philippines and in
the United States of America. It is agreed that
this will constitute an actionable document in
both jurisdictions and the parties herein waive
their right to object to the use of this document
in the event a legal issue should arise relating
to the validity of this document. In the event of
a dispute, this letter is subject to interpretation
under the laws of California, U.S.A.
5. To allow her daughter to spend two to three
months each year with the father upon mutual
convenience.

On the same date, Macaria made cash


payments to Sylvia in the amount of P100,000
and
US$35,000.00
or
P280,000.00,
in
compliance with her obligations as stipulated in
the aforestated Letter-Agreement.
On March 30, 1977, Sylvia and Jose Vicente
filed before the then Court of First Instance of
Rizal a joint petition for judicial approval of
dissolution of their conjugal partnership, the
main part of which reads as follows (pp. 3738,Rollo):
5. For the best interest of each of them and of
their minor child, petitioners have agreed to
dissolve their conjugal partnership and to
partition the assets thereof, under the following
terms and conditions-this document, a pleading
being intended by them to embody and
evidence their agreement:
xxx xxx xxx
(c)
The
following
properties
shall
be
adjudicated to petitioner Sylvia Lichauco De
Leon. These properties will be free of any and
all liens and encumbrances, with clear title and
subject to no claims by third parties. Petitioner
Jose Vicente De Leon fully assumes all
responsibility and liability in the event these
properties shall not be as described in the
previous sentence:
Sedan (1972 model)

Very truly yours,


(Sgd.) Sylvia de Leon t/ SYLVIA L. DE LEON
CONFORME:
s/t/MACARIA
M.
DE
LEON
with
my
marital
consent:
s/t/JUAN L. DE LEON

Suite
11-C,
Avalon
Condominium,
Ortigas
Ave.,
comer
Xavier
St.,
Mandaluyong, Rizal, Philippines
Apt.
702,
Wack-Wack
Condominium,
Mandaluyong, Rizal, Philippines

The rights to assignment of 2 Ayala lots in


Alabang Rizal (corner lots, 801 sq. meters
each) (Fully paid)
2470 Wexford Ave., South San Francisco,
California,
U.S.A.
(Lot
18,
Block
22
Westborough Unit 2) (Fully paid)
The sum of One Hundred Thousand Pesos
(P100,000.00)
$30,000.00
at
current
exchange
$5,000.00 at current exchange rate

rate

After ex-parte hearings, the trial court issued


an Order dated February 19, 1980 approving
the petition, the dispositive portion of which
reads (p. 143, Rollo):
WHEREFORE, it is hereby declared that the
conjugal partnership of the Spouses is
DISSOLVED henceforth, without prejudice to
the terms of their agreement that each spouse
shall own, dispose of, possess, administer and
enjoy his or her separate estate, without the
consent of the other, and all earnings from any
profession, business or industries shall likewise
belong to each spouse.
On March 17, 1980, Sylvia moved for the
execution of the above-mentioned order.
However,
Jose
Vicente
moved
for
a
reconsideration of the order alleging that Sylvia
made a verbal reformation of the petition as
there was no such agreement for the payment
of P4,500.00 monthly support to commence
from the alleged date of separation in April,
1973 and that there was no notice given to him
that Sylvia would attempt verbal reformation of
the agreement contained in the joint petition
While the said motion for reconsideration was
pending resolution, on April 20, 1980, Macaria

filed with the trial court a motion for leave to


intervene alleging that she is the owner of the
properties involved in the case. The motion
was granted. On October 29, 1980, Macaria,
assisted by her husband Juan De Leon, filed her
complaint in intervention. She assailed the
validity and legality of the Letter-Agreement
which had for its purpose, according to her, the
termination of marital relationship between
Sylvia and Jose Vicente. However, before any
hearing
could
be
had,
the
judicial
reorganization took place and the case was
transferred to the-Regional Trial Court of Pasig.
On December 29, 1983, the trial court
rendered judgment, the dispositive portion of
which reads (pp. 35-36, Rollo):
WHEREFORE, judgment is hereby rendered on
the complaint in intervention in favor of the
intervenor, declaring null and void the letter
agreement dated March 16, 1977 (Exhibits 'E'
to 'E-2'), and ordering petitioner Sylvia
Lichauco De Leon to restore to intervenor the
amount of P380,000.00 plus legal interest from
date of complaint, and to pay intervenor the
amount of P100,000.00 as and for attorney's
fees, and to pay the costs of suit.
Judgment is likewise rendered affirming the
order of the Court dated February 19, 1980
declaring the conjugal partnership of the
spouses Jose Vicente De Leon and Sylvia
Lichauco De Leon DISSOLVED; and adjudicating
to each of them his or her share of the
properties and assets of said conjugal
partnership in accordance with the agreement
embodied in paragraph 5 of the petition,
except insofar as the adjudication to petitioner
Sylvia L. De Leon of the properties belonging to
and owned by Intervenor Macaria De Leon is
concerned.
Henceforth, (a) each spouse shall own, dispose
of, possess, administer and enjoy his or her

separate estate, present and future without the


consent of the other; (b) an earnings from any
profession, business or industry shall likewise
belong to each of them separately; (c) the
minor child Susana De Leon shall stay with
petitioner Sylvia Lichauco De Leon for two to
three months every year-the transportation
both ways of the child for the trip to the
Philippines to be at the expense of the
petitioner Jose Vicente De Leon; and (d)
petitioner Jose Vicente De Leon shall give
petitioner Sylvia Lichauco De Leon the sum of
P4,500.00 as monthly support for the minor
child Susana to commence from February 19,
1980.
Sylvia appealed to the respondent Court of
Appeals raising the following errors:
1) The trial court erred in finding that the cause
or consideration of the Letter- Agreement is the
termination of marital relations;
2) The trial court failed to appreciate
testimonial and documentary evidence proving
that Macaria de Leon's claims of threat,
intimidation and mistake are baseless; and

paragraph
of
Agreement, supra, reads:

the

Letter-

In consideration for a peaceful and amicable


termination
of relations between
the
undersigned and her lawfully wedded husband,
Jose Vicente De Leon, your son, the following
are agreed upon: (emphasis supplied)
It is readily apparent that the use of the word
"relations" is ambiguous, perforce, it is subject
to interpretation. There being a doubt as to the
meaning of this word taken by itself, a
consideration of the general scope and purpose
of the instrument in which it occurs (see
Germann and Co. v. Donaldson, Sim and Co., 1
Phil. 63) and Article 1374 of the Civil Code
which provides that the various stipulations of
a contract shall be interpreted together,
attributing to the doubtful ones that sense
which may result from all of them taken jointly,
is necessary.

3) The trial court erred in finding that Sylvia


Lichauco de Leon committed breach of the
Letter-Agreement; and further, failed to
appreciate evidence proving Macaria de Leon's
material breach thereof.

Sylvia insists that the consideration for her


execution of the Letter-Agreement was the
termination of property relations with her
husband. Indeed, Sylvia and Jose Vicente
subsequently filed a joint petition for judicial
approval of the dissolution of their conjugal
partnership, sanctioned by Article 191 of the
Civil Code. On the other hand, Macaria and Jose
Vicente assert that the consideration was the
termination of marital relationship.

The respondent court affirmed the decision in


toto. The motion for reconsideration was
denied. Hence, the present petition.

We sustain the observations and conclusion


made by the trial court, to wit (pp. 4446, Rollo):

The only basis by which Sylvia may lay claim to


the properties which are the subject matter of
the Letter-Agreement, is the Letter-Agreement
itself. The main issue, therefore, is whether or
not the Letter-Agreement is valid. The third

On page two of the letter agreement (Exhibit'


E'), the parties contemplated not only to agree
to a judicial separation of property of the
spouses but likewise to continue with divorce
proceedings (paragraphs 1 and 2, Obligations
of the Wife, Exhibit 'E-1'). If taken with the

apparently ambiguous provisions in Exhibit E'


regarding termination of 'relations', the parties
clearly contemplated not only the termination
of property relationship but likewise of marital
relationship in its entirety. Furthermore, it
would be safe to assume that the parties in
Exhibit 'E' not having specified the particular
relationship which they wanted to peacefully
and amicably terminate had intended to
terminate all kinds of relations, both marital
and property. While there could be inherent
benefits to a termination of conjugal property
relationship between the spouses, the court
could not clearly perceive the underlying
benefit
for
the
intervenor
insofar
as
termination of property relationship between
petitioners is concerned, unless the underlying
consideration for intervenor is the termination
of marital relationship by divorce proceedings
between her son Jose Vicente and his wife
petitioner
Sylvia. The
last
sentence
of
paragraph 2 under "Obligations of the Wife"
unequivocally states: "It is the stated objective
of
this
agreement
that
said
divorce
proceedings (in the United States) will
continue. "There is merit in concluding that the
consideration by which Intervenor executed
Exhibit 'E' to 'E-2' was to secure freedom for
her son petitioner Jose Vicente De Leon,
especially if Exhibit 'R'-Intervenor, which is (sic)
agreement signed by petitioner Sylvia to
consent to and pardon Jose Vicente De Leon for
adultery and concubinage (among others)
would be considered. In the light, therefore, of
the foregoing circumstances, this Court finds
credible the testimony of intervenor as follows:
Q Will you please go over the Exhibit 'E' to 'E2'- intervenor consisting of three pages and
inform us whether or not this is the letter of
March 16, 1977 which you just referred to?
A Yes, this is the letter.

Why did you affix your signature to this Exh.


'E'-intervenor (sic)?
A Because at that time when I signed it I want
to buy peace for myself and for the whole
family.
Q From whom did you want to buy peace
and/or what kind of peace?
A I wanted to buy peace from Sylvia Lichauco
whom I knew was kind of 'matapang;' so I want
peace for me and primarily for the peaceful
and
amicable
termination
of
marital
relationship between my son, Joe Vincent and
Sylvia. (Deposition dated September 6, 1983Macaria de Leon, p. 6-7)
This Court, therefore, finds and holds that the
cause or consideration for the intervenor
Macaria De Leon in having executed Exhibits 'E'
to 'E-2' was the termination of the marital
relationship between her son Jose Vicente De
Leon and Sylvia Lichauco de Leon.
Article 1306 of the New Civil Code provides:
Art. 1306. The contracting parties may
establish such stipulations, clauses, terms, and
conditions as they may deem convenient,
provided they are not contrary to law, morals,
good customs, public order or public policy.
If the stipulation is contrary to law, morals or
public policy, the contract is void and
inexistent from the beginning.
Art. 1409. The following contracts are
inexistent and void from the beginning:
Those whose cause, object or purpose is
contrary to law, morals, good customs, public
order or public policy;
xxx xxx xxx
(7) Those expressly prohibited or declared void
by law.
These contracts cannot be ratified. Neither can
the right to set up the defense of illegality be
waived.
But marriage is not a mere contract but a
sacred social institution. Thus, Art. 52 of the
Civil Code provides:

Art. 52. Marriage is


inviolable
social
consequences and
law and not subject

not a mere contract but an


institution.
Its
nature,
incidents are governed by
to stipulations...

From the foregoing provisions of the New Civil


Code, this court is of the considered opinion
and so holds that intervenor's undertaking
under Exhibit 'E' premised on the termination
of marital relationship is not only contrary to
law but contrary to Filipino morals and public
Policy. As such, any agreement or obligations
based on such unlawful consideration and
which is contrary to public policy should be
deemed null and void. (emphasis supplied)
Additionally, Article 191 of the Civil Case
contemplates properties belonging to the
spouses and not those belonging to a third
party, who, in the case at bar., is Macaria. In
the petition for the dissolution of the conjugal
partnership, it was made to appear that the
said properties are conjugal in nature.
However, Macaria was able to prove that the
questioned properties are owned by her.
Neither Sylvia nor Jose Vicente adduced any
contrary evidence.
Granting,
in gratia
argumenti, that
the
consideration of the Letter-Agreement was the
termination of property relations, We agree
with the respondent court that (pp. 4647, Rollo):
... the agreement nevertheless is void because
it contravenes the following provisions of the
Civil Code:
Art. 221. The following shall be void and of no
effect:
(1) Any contract for personal separation
between husband and wife;
(2) Every extra-judicial agreement, during
marriage, for the dissolution of the conjugal
partnership of gains or of the absolute
community of property between husband and
wife;

Besides, the Letter-Agreement shows on its


face that it was prepared by Sylvia, and in this
regard, the ambiguity in a contract is to be
taken contra
proferentem, i.e.,
construed
against the party who caused the ambiguity
and could have also avoided it by the exercise
of a little more care. Thus, Article 1377 of the
Civil Code provides: "The interpretation of
obscure words of stipulations in a contract shall
not favor the party who caused the obscurity"
(see Equitable Banking Corp. vs. IAC, G.R. No.
74451, May 25, 1988, 161 SCRA 518).
Sylvia alleges further that since the nullity of
the Letter-Agreement proceeds from the
unlawful consideration solely of Macaria,
applying the pari delicto rule, it is clear that
she cannot recover what she has given by
reason of the Letter-Agreement nor ask for the
fulfillment of what has been promised her. On
her part, Macaria raises the defenses of
intimidation and mistake which led her to
execute the Letter-Agreement. In resolving this
issue, the trial court said (pp. 148-151, Rollo):
In her second cause of action, intervenor
claims that her signing of Exhibits 'E' to 'E- 2'
was due to a fear of an unpeaceful and
troublesome separation other son with
petitioner Sylvia Lichauco de Leon. In support
of her claim, intervenor testified as follows:
Q Will you please inform us how did Sylvia
Lichauco disturb or threaten your son or
yourself?
A Despite the fact that Sylvia Lichauco
voluntarily left my son Joe Vincent and
abandoned him, she unashamedly nagged Joe
and me to get money and when her demands
were not met she resorted to threats like, she
threatened to bring Joe to court for support.
Sylvia threatened to scandalize our family by
these baseless suits; in fact she caused the

service of summons to Joe when he went to the


United States. (Intervenor's deposition dated
Sept. 6, 1983, p. 8).
On the other hand, petitioner Sylvia claims that
it was intervenor and petitioner Jose Vicente
who initiated the move to convince her to
agree to a dissolution of their conjugal
partnership due to the alleged extra-marital
activities of petitioner Jose Vicente de Leon.
She testified as follows:

to the apprehensions of intervenor for in


petitioner Sylvia's testimony she confirms the
worry of intervenor as follows:'... being at that
time Jose (De Leon) was already remarried and
had a child. That since she (intervenor) found
out that, she was worried about what might be,
you know, involved in any future matters. She
just want me out of the picture." The aforesaid
fear of intervenor was further corroborated by
her witness Concepcion Tagudin who testified
as follows:

Q Now in her testimony, Macaria Madrigal de


Leon also said that you threatened her by
demanding money and nagged her until she
agreed to the letter agreement of March 1977,
what can you say about that?

Q Now, you mentioned that you were present


when Mrs. Macaria De Leon signed this Exhibit
'E-2, ' will you inform us whether there was
anything unusual which you noticed when Mrs.
Macaria M. De Leon signed this Exhibit 'E-2'?

A I think with all the people sitting around with


Atty. Quisumbing, Atty. Chuidian, my father-inlaw, my sister-in-law and I, you know, it can be
shown that this was a friendly amicable
settlement that they were much really
interested in settling down as I was. I think
there were certain reasons that they wanted to
get done or planned, being at that time Jose
was already remarried and had a child. That
since she then found out that since she was
worried about what might be, you know,
involved in any future matters. She just wanted
to do what she could. She just want me out of
the picture. So in no way, it cannot be said that
I nagged and threatened her. (TSN dated
December 8, 1983, p. 137-138)

A Mrs. Macaria M. De Leon was in a state of


tension and anger. She was so mad that she
remarked: 'Punetang Sylvia ito bakit ba niya
ako ginugulo. Ipakukulong daw niya si Joe
Vincent kung hindi ko pipirmahan ito. Sana
matapos
na
itong
problemang
ito
pagkapirmang ito,' sabi niya.' (DepositionConcepcion Tagudin, Oct. 21, 1983, pp. 10-11)

In resolving this issue, this Court leans heavily


on Exhibit 'R'-intervenor, which was not
controverted by petitioner Sylvia. A reading of
Exhibit 'R' would show that petitioner Sylvia
would consent to and pardon petitioner Jose
Vicente, son of intervenor, for possible crimes
of adultery and/or concubinage, with a sizing
attached; that is, the transfer of the properties
subject herein to her. There appears some truth

In her third cause of action, intervenor claims


mistake or error in having signed Exhibits '1' to
'E-2' alleging in her testimony as follows:
Q Before you were told such by your lawyers
what if any were your basis to believe that
Sylvia would no longer have inheritance rights
from your son, Joe Vincent?
A Well, that was what Sylvia told me. That she
will eliminate any inheritance rights from me or
my son Joe Vincent's properties if I sign the
document amicably. ... (Intervenor's depositionSept. 6, 1983, pp. 9-10).

On the other hand, petitioner Sylvia claims that


intervenor could not have been mistaken in her
having signed the document as she was under
advice of counsel during the time that Exhibits
'E' to 'E-2' was negotiated. To support such
claims by Sylvia Lichauco De Leon, the
deposition testimony of Atty. Vicente Chuidian
was presented before this Court:
Atty. Herbosa: Now you mentioned Atty.
Norberto Quisumbing, would you be able to tell
us in what capacity he was present in that
negotiation?
Atty. Chuidian: He was counsel for Dona
Macaria and for Joe Vincent, the spouse of
Sylvia. (Deposition of V. Chuidian, December
16, 1983, p. 8)
The New Civil Code provides:
Art. 1330. A contract where consent is given
through mistake, violence, intimidation, undue
influence or fraud is voidable.
Art. 1331. In order that mistake may invalidate
consent, it should refer to the substance of the
thing which is the object of the contract, or to
those conditions which have principally moved
one or both parties to enter into a contract. ...
The preponderance of evidence leans in favor
of intervenor who even utilized the statement
of the divorce lawyer of petitioner Sylvia (Mr.
Penrod) in support of the fact that intervenor
was mistaken in having signed Exhibits 'E' to
'E-2' because when she signed said Exhibits
she believed that fact that petitioner Sylvia
would eliminate her inheritance rights and
there is no showing that said intervenor was
properly advised by any American lawyer on
the fact whether petitioner Sylvia, being an
American citizen, could rightfully do the same.
Transcending, however, the issue of whether
there was mistake of fact on the part of
intervenor or not, this Court could not. see a
valid cause or consideration in favor of
intervenor Macaria De Leon having signed

Exhibits 'E' to 'E-2.' For even if petitioner Sylvia


had confirmed Mr. Penrod's statement during
the divorce proceedings in the United States
that she would undertake to eliminate her
hereditary rights in the event of the property
settlement, under Philippine laws, such
contract would likewise be voidable, for under
Art. 1347 of the New Civil Code 'no contract
may be entered into upon future inheritance.
We do not subscribe to the aforestated view of
the trial court. Article 1335 of the Civil Code
provides:
xxx xxx xxx
There is intimidation when one of the
contracting parties is compelled by a
reasonable and well-grounded fear of an
imminent and grave evil upon his person or
property, or upon the person or property of his
spouse, descendants or ascendants, to give his
consent.
To determine the degree of the intimidation,
the age, sex and condition of the person shall
be borne in mind.
A threat to enforce one's claim through
competent authority, if the claim is just or
legal, does not vitiate consent.
In order that intimidation may vitiate consent
and render the contract invalid, the following
requisites
must
concur:
(1)
that
the
intimidation must be the determining cause of
the contract, or must have caused the consent
to be given; (2) that the threatened act be
unjust or unlawful; (3) that the threat be real
and
serious,
there
being
an
evident
disproportion between the evil and the
resistance which all men can offer, leading to
the choice of the contract as the lesser evil;

and (4) that it produces a reasonable and wellgrounded fear from the fact that the person
from whom it comes has the necessary means
or ability to inflict the threatened injury.
Applying the foregoing to the present case, the
claim of Macaria that Sylvia threatened her to
bring Jose Vicente to court for support, to
scandalize their family by baseless suits and
that Sylvia would pardon Jose Vicente for
possible crimes of adultery and/or concubinage
subject to the transfer of certain properties to
her, is obviously not the intimidation referred
to by law. With respect to mistake as a vice of
consent, neither is Macaria's alleged mistake in
having signed the Letter-Agreement because of
her belief that Sylvia will thereby eliminate
inheritance rights from her and Jose Vicente,
the mistake referred to in Article 1331 of the
Civil Code, supra. It does not appear that the
condition that Sylvia "will eliminate her
inheritance rights" principally moved Macaria
to enter into the contract. Rather, such
condition was but an incident of the
consideration thereof which, as discussed
earlier, is the termination of marital relations.
In the ultimate analysis, therefore, both parties
acted in violation of the laws. However,
the pari delicto rule, expressed in the maxims
"Ex dolo malo non oritur actio" and "In pari
delicto potior est conditio defendentis," which
refuses remedy to either party to an illegal
agreement and leaves them where they are,
does not apply in this case. Contrary to the
ruling of the respondent Court that (pp. 4748, Rollo):
...
[C]onsequently,
intervenor
appellees'
obligation under the said agreement having
been annulled, the contracting parties shall
restore to each other that things which have
been subject matter of the contract, their fruits
and the price or its interest, except as provided
by law (Art. 1398, Civil Code).

Article 1414 of the Civil Code, which is an


exception to the pari delicto rule, is the proper
law to be applied. It provides:
When money is paid or property delivered for
an illegal purpose, the contract may be
repudiated by one of the parties before the
purpose has been accomplished, or before any
damage has been caused to a third person. In
such case, the courts may, if the public interest
wig thus be subserved, allow the party
repudiating the contract to recover the money
or property.
Since the Letter-Agreement was repudiated
before the purpose has been accomplished and
to adhere to the pari delicto rule in this case is
to put a premium to the circumvention of the
laws, positive relief should be granted to
Macaria. Justice would be served by allowing
her to be placed in the position in which she
was before the transaction was entered into.
With the conclusions thus reached, We find it
unnecessary to discuss the other issues raised.
ACCORDINGLY, the petition is hereby DENIED.
The decision of the respondent Court of
Appeals dated June 30, 1987 and its resolution
dated November 24, 1987 are AFFIRMED.
SO ORDERED.

[A M. No. P-94-1054. March 11, 2003]


EDWIN A. ACEBEDO, petitioner, vs. EDDIE
P. ARQUERO, respondent.
DECISION
CARPIO MORALES, J.:
By letter-complaint dated June 1, 1994,
Edwin A. Acebedo charged Eddie P. Arquero,
Process Server of the Municipal Trial Court
(MTC) of Brookes Point, Palawan for immorality.
[1]

Complainant alleged that his wife, Dedje


Irader Acebedo, a former stenographer of the
MTC Brookes Point, and respondent unlawfully
and scandalously cohabited as husband and
wife at Bancudo Pulot, Brookes Point, Palawan
as a result of which a girl, Desiree May Irader
Arquero, was born to the two on May 21,
1989. Attached to the letter-complaint was the
girls Baptismal Certificate[2] reflecting the
names of respondent and Dedje Irader as her
parents. Also
attached
to
the
lettercomplainant was a copy of a marriage
contract[3] showing that complainant and Dedje
Irader contracted marriage on July 10, 1979.
By Resolution of September 7, 1994, this
Court required respondent to file an answer to
the complaint.[4]
By his Answer[5] of October 6, 1994,
respondent vehemently denied the charge of
immorality, claiming that it is just a (sic) mere
harassment and a product of complainants
hatred and extreme jealousy to (sic) his wife.
[6]
Attached to the answer were the September
27, 1987 affidavit of desistance[7] executed by
complainant in favor of his wife with respect to
an administrative complaint he had much

earlier filed against her, and complainants


sworn statement[8] dated September 13, 1994
acknowledging paternity of a child born out of
wedlock, which documents, respondent claims,
support his contention that the complaint filed
against him is but a malicious scheme
concocted by complainant to harass him.
Additionally, respondent claimed that
sometime in 1991, complainant likewise
instituted a criminal complaint against him for
adultery which was, however, dismissed after
preliminary investigation.
Finally,
respondent
claimed
that
complainant himself had been cohabiting with
another woman.
By Resolution of February 6, 1995, this
Court referred the case to then Executive Judge
Filomeno A. Vergara of the Regional Trial Court
of Puerto Princesa, Palawan for investigation,
report and recommendation.[9] Judge Vergara
having retired during the pendency of the
investigation, the case was referred to
Executive Judge Nelia Y. Fernandez who was, by
Resolution of August 16, 2000, directed by this
Court to (1) verify the authenticity of the
marriage certificate and baptismal certificate
submitted by complainant; (2) conduct an
investigation as to the information contained in
the said baptismal certificate and the
circumstances under which it was issued, and
such other verifiable matters relevant to the
charge; and (3) submit her report and
recommendation thereon.[10]
In her Investigation Report of February 12,
2001, Judge Fernandez recommends that the
complaint be dismissed for failure to adduce
adequate evidence to show that respondent is
guilty of the charge.[11] The report focuses on

the non-appearance of complainant and Dedje


Irader Acebedo, thusly:
xxx
Having appeared that the complainant Edwin
Acebedo and Dedjie Irader who per reliable
information cannot be notified for reason that
subject persons are no longer residing in their
given address and their whereabouts is
unknown as shown by the return of the
subpoena dated November 7, 2000, and the
inadmissibility of the baptismal certificate
alleging therein that the father of Desiree
Arquero is the respondent herein, and for the
reason that the same had not been testified to
by Dedje Irader who is the informant of the
entries contained therein, this Court had not
received adequate proof or relevant evidence
to support a conclusion that respondent herein
could be held liable of the charge imputed
against him, hence, he should be absolved
from any liability.
x x x[12] (Quoted verbatim).
By Resolution of April 25, 2001, this Court
referred the case to the Office of the Court
Administrator (OCA) for evaluation, report and
recommendation.
By Memorandum of December 12, 2001,
the OCA, disagreeing with the recommendation
of the Investigating Judge that the case should
be dismissed, recommends that respondent be
held guilty of immorality and that he be
suspended from office for a period of one (1)
year without pay.[13] Thus the OCA ratiocinates:
. . . [R]espondent admitted the fact that
for eight (8) to nine (9) months, he a
single man maintained relations with

Dedje Irader Acebedo, wife of herein


complainant,
attended
with
sexual
union(TSN dated 23 November 2000, pp. 1415). Based on his testimony, we observed
that respondent justified his having a
relationship with Dedje I. Acebedo solely
on the written document purportedly a
Kasunduan or agreement entered into by
complainant and his wife, consenting to
and giving freedom to either of them to
seek any partner and to live with him or
her. Being a court employee respondent
should have known that said agreement was
void despite it having been notarized. Even
granting that Dedjie I. Acebedo was separated
from her husband during their short lived
relation, to hold on to said scandalous
agreement and enter an immoral relationship
with a very much married woman and a cocourt-employee at that is highly improper. It is
contrary to the Code of Conduct and Ethical
Standards of Public Officials and Employees
which provides that public employees of which
respondent is one, xxx shall at times (sic)
respect the rights of others, and shall refrain
from doing acts contrary to law, good morals,
good customs, public policy, public order,
public safety and public interest. Moreover,
respondent cannot seek refuge and sling mud
at complainant for having executed an Affidavit
dated September 13, 1994, acknowledging
that he bore a woman other than his wife, a
child. It would seem that respondent would
want to apply the principle of in pari delicto in
the instant case. Respondent would have it
appear that a married man with an extramarital relation and an illegitimate child is
precluded from complaining if his wife enters
into a relationship with another man.
Second, the records show that an Affidavit of
Desistance
was
executed
by
herein
complainant. However, a cursory reading of
said document reveals that it favors only Dedje

Irader
Acebedo
and
not
herein
respondent. Interestingly, the date of said
affidavit is 2 September 1987. Respondent had
the temerity to claim it as evidence in his favor
when the instant complaint was only filed
sometime in 1994.

baptized.[17] It merely attests to the fact which


gave rise to its issue, and the date thereof, to
wit, the fact of the administration of the
sacrament on the date stated, but not the truth
of the statements therein as to the parentage
of the child baptized.[18]

Third, when respondent was asked by the


investigating judge if he attended the baptism
of the daughter of Dedje Irader Acebedo, his
former co-employee and ex-intimate friend, he
answered, I did not. Im not sure the child is
mine. From his answer, we could infer that
respondent did not categorically rule out the
possibility that said child might be her (sic)
daughter, only that he is doubtful of her
paternity.

By respondents own admission, however, he


had
an illicit
relationship
with
complainants wife:

While complainant appears to have lost


interest in the prosecution of the present case,
the same does not ipso facto warrant its
dismissal. Once administrative charges have
been filed, this Court may not be divested of its
jurisdiction to investigate and ascertain the
truth thereof.[15] For it has an interest in the
conduct of those in the service of the Judiciary
and in improving the delivery of justice to the
people, and its efforts in that direction may not
be derailed by the complainants desistance
from prosecuting the case he initiated.[16]

A: During that time that I have heard she


and her husband have parted ways
already, I jokingly informed her that she is
now being separated, she is now single
and
is
free
to
have
some
commitment.So, I courted her and she
accepted me, so we have a short lived
relation and after that we parted ways.

On the merits of the case, the entry of


respondents name as father in the baptismal
certificate of Desiree May I. Arquero cannot be
used to prove her filiation and, therefore,
cannot be availed of to imply that respondent
maintained illicit relations with Dedje Irader
Acebedo. A canonical certificate is conclusive
proof only of the baptism administered, in
conformity with the rites of the Catholic Church
by the priest who baptized the child, but it
does not prove the veracity of the declarations
and statements contained therein which
concern the relationship of the person

Q: During the formal offer of the possible


nature of your testimony before the Court
by your counsel, did the Court get it
correct that there has been a short lived
relation between you and Dedgie Irader,
am I correct in my impression?

Q: For how long was this short lived


relation you ade mention a while ago?
A: May be (sic) about eight (8) to nine (9)
months.
Q: When you said you have (sic) a short
lived relationship from 8 to 9 months, you
mean to tell the Court that you have
(sic) a sexual union with this woman?
A: Yes maam.[19] (Emphasis
underscoring supplied).

and

Respondent justified his pursuing a


relationship with complainants wife with the

spouses having priorly entered into a


settlement with respect to their marriage which
was embodied in aKasunduan, the pertinent
portions of which are reproduced hereunder:
Kami, EDWIN AGUINALDO ACEBEDO at DEDJE
IRADER ACEBEDO, may sapat na taong gulang,
mag-asawa, Pilipino, at kasalukuyang nakatira
sa Poblacion, Brokes (sic) Point, Palawan, ay
malayang nagkasundo ng mga sumusunod:
1. Na, yayamang hindi kami magkasundo
bilang mag-asawa, at magiging miserable
lamang ang aming mga buhay kung aming
ipagpapatuloy pa ang aming pagsasama bilang
mag-asawa, kami ay malayang nagkasundo
ngayon na maghiwalay na bilang mag-asawa,
at ang bawat isa sa amin ay may kalayaan na
humanap na ng kaniyang makakasama sa
buhay bilang asawa at hindi kami maghahabol
sa isat isa sa alin pa mang hukuman;
Respondents justification fails. Being an
employee of the judiciary, respondent ought to
have known that the Kasunduan had absolutely
no force and effect on the validity of the
marriage between complainant and his
wife. Article 1 of the Family Code provides that
marriage is an inviolable social institution
whose nature, consequences, and incidents are
governed by law and not subject to
stipulation. It is an institution of public order
or policy, governed by rules established by law
which cannot be made inoperative by the
stipulation of the parties.[21]
Republic Act 6713, otherwise known as the
Code of Conduct and Ethical Standards for
Public Officials and Employees, enunciates the
States policy of promoting a high standard of
ethics and utmost responsibility in the public
service.[22]

Although every office in the government


service is a public trust, no position exacts a
greater demand for moral righteousness and
uprightness from an individual than in the
judiciary.[23]That is why this Court has firmly laid
down exacting standards of morality and
decency expected of those in the service of the
judiciary.[24] Their conduct, not to mention
behavior, is circumscribed with the heavy
burden of responsibility,[25] characterized by,
among other things, propriety and decorum so
as to earn and keep the publics respect and
confidence in the judicial service.[26] It must be
free from any whiff of impropriety, not only
with respect to their duties in the judicial
branch but also to their behavior outside the
court as private individuals.[27]There is no
dichotomy of morality; court employees are
also judged by their private morals.[28]
Respondents act of having illicit relations
with complainants wife is, within the purview of
Section 46 (5) of Subtitle A, Title I, Book V of
Executive Order No. 292, otherwise known as
the Administrative Code of 1987, a disgraceful
and immoral conduct.
Under Rule IV, Section 52A (15) of the
Revised Uniform Rules on Administrative Cases
in the Civil Service, an immoral conduct is
classified as a grave offense which calls for a
penalty of suspension for six (6) months and
one (1) day to one (1) year for the first offense,
and dismissal is imposed for the second
offense.
Since the present charge of immorality
against respondent constitutes his first offense,
his suspension for six (6) months and one (1)
day is in order.
WHEREFORE, this Court finds respondent
Eddie P. Arquero, Process Server of the
Municipal Trial Court of Brookes Point, Palawan,

GUILTY of immorality, for which he is hereby


SUSPENDED for six (6) months and one (1) day
without pay with a STERN WARNING that
commission of the same or similar acts shall be
dealt with severely.
Let a copy of this decision be filed in the
personal record of respondent.SO ORDERED.

A.C. No. 8392


June 29, 2010
[ Formerly CBD Case No. 08-2175 ]
ROSARIO
T.
MECARAL, Complainant,
vs.
ATTY. DANILO S. VELASQUEZ, Respondent.
DECISION
Per Curiam:
Rosario T. Mecaral (complainant) charged Atty.
Danilo S. Velasquez (respondent) before the
Integrated Bar of the Philippines (IBP)
Committee on Bar Discipline (CBD) 1 with Gross
Misconduct and Gross Immoral Conduct which
she detailed in her Position Paper2 as follows:
After respondent hired her as his secretary in
2002, she became his lover and common-law
wife. In October 2007, respondent brought her
to the mountainous Upper San Agustin in
Caibiran, Biliran where he left her with a
religious group known as the Faith Healers
Association of the Philippines, of which he was
the leader. Although he visited her daily, his
visits became scarce in November to
December 2007, prompting her to return home
to Naval, Biliran. Furious, respondent brought
her back to San Agustin where, on his
instruction, his followers tortured, brainwashed
and injected her with drugs. When she tried to
escape on December 24, 2007, the members
of the group tied her spread-eagled to a bed.
Made to wear only a T-shirt and diapers and fed
stale food, she was guarded 24 hours a day by
the women members including a certain
Bernardita Tadeo.
Her mother, Delia Tambis Vda. De Mecaral
(Delia), having received information that she
was weak, pale and walking barefoot along the
streets in the mountainous area of Caibiran,

sought the help of the Provincial Social Welfare


Department which immediately dispatched two
women volunteers to rescue her. The religious
group refused to release her, however, without
the instruction of respondent. It took PO3 Delan
G. Lee (PO3 Lee) and PO1 Arnel S. Robedillo
(PO1 Robedillo) to rescue and reunite her with
her mother.

defense in a verified pleading," 11 he did not file


any Answer.1avvphi1

Hence, the present disbarment complaint


against respondent. Additionally, complainant
charges
respondent
with
bigamy
for
contracting a second marriage to Leny H. Azur
on August 2, 1996, despite the subsistence of
his marriage to his first wife, Ma. Shirley G.
Yunzal.

Investigating Commissioner Felimon C. Abelita


III
of
the CBD, in his Report and
Recommendation12 dated September 29, 2008,
found that:

In support of her charges, complainant


submitted documents including the following:
Affidavit3 of Delia dated February 5, 2008;
Affidavit of PO3 Lee and PO1 Robedillo 4 dated
February 14, 2008; photocopy of the Certificate
of Marriage5 between respondent and Leny H.
Azur;
photocopy
of
the
Marriage
Contract6 between respondent and Shirley G.
Yunzal;
National
Statistics
Office
Certification7 dated April 23, 2008 showing the
marriage of Ma. Shirley G. Yunzal to respondent
on April 27, 1990 in Quezon City and the
marriage of Leny H. Azur to respondent on
August 2, 1996 in Mandaue City, Cebu; and
certified machine copy of the Resolution 8 of the
Office of the Provincial Prosecutor of Naval,
Biliran and the Information9 lodged with the
RTC-Branch 37-Caibiran, Naval, Biliran, for
Serious Illegal Detention against respondent
and Bernardita Tadeo on complaint of herein
complainant.
Despite respondents receipt of the February
22, 2008 Order10 of the Director for Bar
Discipline for him to submit his Answer within
15 days from receipt thereof, and his
expressed intent to "properly make [his]

On the scheduled Mandatory Conference set on


September 2, 2008 of which the parties were
duly notified, only complainants counsel was
present. Respondent and his counsel failed to
appear.

[respondents] acts of converting his secretary


into a mistress; contracting two marriages with
Shirley and Leny, are grossly immoral which no
civilized society in the world can countenance.
The subsequent detention and torture of the
complainant is gross misconduct [which] only a
beast may be able to do. Certainly, the
respondent had violated Canon 1 of the Code
of Professional Responsibility which reads:
CANON 1 A lawyer shall uphold the
constitution, obey the laws of the land and
promote respect for law and legal processes.
xxxx
In the long line of cases, the Supreme Court
has consistently imposed severe penalty for
grossly immoral conduct of a lawyer like the
case at bar. In the celebrated case of Joselano
Guevarra vs. Atty. Jose Manuel Eala, the [Court]
ordered the disbarment of the respondent for
maintaining extra-marital relations with a
married woman, and having a child with her. In
the instant case, not only did the respondent
commit bigamy for contracting marriages with
Shirley Yunzal in 1990 and Leny Azur in 1996,
but the respondent also made his secretary
(complainant) his mistress and subsequently,

tortured her to the point of death. All these


circumstances
showed
the
moral
fiber
respondent is made of, which [leave] the
undersigned with no choice but to recommend
the
disbarment
of
Atty.
Danilo
S.
Velasquez.13 (emphasis
and
underscoring
supplied)
The IBP Board of Governors of Pasig City, by
Resolution14 dated
December
11,
2008,
ADOPTED the Investigating Commissioners
findings and APPROVED the recommendation
for the disbarment of respondent.
As did the IBP Board of Governors, the Court
finds the IBP Commissioners evaluation and
recommendation well taken.
The practice of law is not a right but a privilege
bestowed by the state upon those who show
that they possess, and continue to possess, the
qualifications required by law for the
conferment of such privilege.15 When a
lawyers moral character is assailed, such that
his right to continue
practicing his cherished profession is imperiled,
it behooves him to meet the charges squarely
and present evidence, to the satisfaction of the
investigating body and this Court, that he is
morally fit to keep his name in the Roll of
Attorneys.16
Respondent has not discharged the burden. He
never attended the hearings before the IBP to
rebut the charges brought against him,
suggesting that they are true. 17 Despite his
letter dated March 28, 2008 manifesting that
he would come up with his defense "in a
verified pleading," he never did.
Aside then from the IBPs finding that
respondent violated Canon 1 of the Code of

Professional Responsibility, he also violated the


Lawyers Oath reading:
I _________, having been permitted to continue
in the practice of law in the Philippines, do
solemnly swear that I recognize the supreme
authority of the Republic of the Philippines; I
will support its Constitution and obey the
laws as well as the legal orders of the duly
constituted authorities therein; I will do no
falsehood, nor consent to the doing of any in
court; I will not wittingly or willingly promote or
sue any groundless, false or unlawful suit, nor
give aid nor consent to the same; I will delay
no man for money or malice, and will conduct
myself as a lawyer according to the best of my
knowledge and discretion with all good fidelity
as well as to the courts as to my clients; and I
impose upon myself this voluntary obligation
without any mental reservation or purpose of
evasion. So help me God, (underscoring
supplied),
and Rule 7.03, Canon 7 of the same Code
reading:
Rule 7.03 A lawyer shall not engage
conduct that adversely reflects on his fitness
practice law, nor shall he, whether in public
private life, behave in a scandalous manner
the discredit of the legal profession.

in
to
or
to

The April 30, 2008 Resolution 18 of the Provincial


Prosecutor on complainants charge against
respondent and Bernardita Tadeo for Serious
Illegal Detention bears special noting, viz:
[T]he counter-affidavit of x x x Bernardita C.
Tadeo (co-accused in the complaint) has the
effect of strengthening the allegations against
Atty. Danilo Velasquez. Indeed, it is clear now
that there was really physical restraint
employed by Atty. Velasquez upon the person
of Rosario Mecaral. Even as he claimed that on

the day private complainant was fetched by


the
two
women
and
police
officers,
complainant was already freely roaming around
the place and thus, could not have been
physically detained. However, it is not really
necessary that Rosario be physically kept
within an enclosure to restrict her freedom of
locomotion.
In
fact,
she
was
always
accompanied wherever she would wander, that
it could be impossible for her to escape
especially considering the remoteness and the
distance between Upper San Agustin, Caibiran,
Biliran to Naval, Biliran where she is a
resident. The people from the Faith Healers
Association had the express and implied orders
coming from respondent Atty. Danilo Velasquez
to keep guarding Rosario Mecaral and not to let
her go freely. That can be gleaned from the
affidavit of co-respondent Bernardita Tadeo.
The latter being reprimanded whenever Atty.
Velasquez would learn that complainant had
untangled the cloth tied on her wrists and
feet.19 (emphasis and underscoring supplied)
That, as reflected in the immediately-quoted
Resolution in the criminal complaint against
respondent,
his
therein
co-respondent
corroborated the testimonies of complainants
witnesses, and that the allegations against him
remain unrebutted, sufficiently prove the
charges against him by clearly preponderant
evidence, the quantum of evidence needed in
an administrative case against a lawyer.20
In fine, by engaging himself in acts which are
grossly immoral and acts which constitute
gross misconduct, respondent has ceased to
possess the qualifications of a lawyer.21
WHEREFORE, respondent, Atty. Danilo S.
Velasquez, is DISBARRED, and his name
ORDERED STRICKEN from the Roll of Attorneys.
This Decision is immediately executory and
ordered to be part of the records of respondent

in the Office of the Bar Confidant, Supreme


Court of the Philippines.
Let copies of the Decision be furnished the
Integrated Bar of the Philippines and circulated
to all courts.
SO ORDERED.

A.M. No. MTJ-92-710


2003

June 19,

PEDRITA
M.
HARAYO, Complainant,
vs.
JUDGE
MAMERTO
Y.
COLIFLORES, Respondent.
DECISION
BELLOSILLO, J.:
Complainant Pedrita M. Harayo, former clerkstenographer, Municipal Trial Court, Minglanilla,
Cebu, in a sworn complaint dated 15
September 1992, charged respondent Judge
Mamerto Y. Coliflores, Presiding Judge of the
same court, with grave misconduct for (a)
dismissing for monetary consideration Crim.
Case No. 2307 for violation of PD No. 1866 1 and
Crim. Case No. 2308 for violation of RA No.
6425;2 (b) assigning Court Aide Jose M. Agosto
as domestic helper and driver of respondents
passenger jeepney; (c) solemnizing illegal
marriages and collecting fees therefor; (d)
allowing her name (complainants) to be placed
as witness in a marriage contract by forging
her signature; (e) falsifying the date when he
signed the verification portion of the complaint
and the joint affidavit of the arresting officers
in Crim. Case No. 2388; and, (f) changing for
monetary consideration the joint affidavit of
arresting officers Jerome Abatayo, Erasmo Gako
and Eugene Hernani relative to Crim. Cases
Nos. 2307 and 2308.
In a related letter-complaint dated 7
September 1992 complainant Pedrita Harayo
charged respondents Josefina R. Hermosa and
Jose M. Agosto, Clerk of Court and Court Aide
respectively, of MTC, Minglanilla, Cebu, with
falsification of entries in their daily time record
and daily attendance book.

By way of comment, respondent Judge denied


the allegations in the complaint and countered
that complainant might have been prompted to
file the instant complaint after he indorsed
Josefina Hermosa over complainant for the
position of Clerk of Court II. He added that
complainant likewise vented her ire on
Hermosa and Agosto when Hermosa did not
accede to her request not to pursue her
application for Clerk of Court, and the latter,
when he chided her about her belligerent
attitude towards Hermosa and his remark that
after all she (complainant) was not qualified for
the position she was seeking and even as court
stenographer since she had no knowledge of
steno-typing.
On the matter of the illegal marriage, charged
in the complaint, respondent claimed that he
desisted from officiating the marriages upon
discovery that the documents were not
complete despite assurances by complainant
to the contrary.
This Court in a resolution dated 23 February
1993 referred the instant case to the Office of
the Court Administrator (OCA) for evaluation,
report and recommendation. Thereafter, the
OCA submitted its memorandum dated 29
March 1993 prepared by Deputy Court
Administrator Eutropio Migrio recommending
the dismissal of the complaints for lack of
merit.
On 11 May 1993 the Court again passed a
resolution referring the instant case to
Executive Judge Generoso Juaban of the
Regional Trial Court, Cebu, for investigation,
report and recommendation. In his report,
Judge Juaban recommended that respondent
be exonerated on the first and third charges,
i.e., that he dismissed cases for monetary
consideration, and that he utilized Court Aide
Jose Agosto as his domestic helper and

personal driver. However, on the charge that


he performed illegal marriages, Judge Juaban
recommended that respondent be admonished
and his salary equivalent to one (1) or two (2)
months be suspended for having signed three
(3)
marriage
contracts
before
the
corresponding marriage licenses were obtained
by the parties. Judge Juaban reported that
While there is no hard proof that respondent
Judge demanded money in the solemnization of
these marriages, suspicion is strong that there
could be some monetary consideration. The
investigator now seems to doubt the verity of
respondents denial. If the marriage contracts
were signed by him and no solemnization ever
had, as he alleges, because he desisted from
doing so in the first instance, why did he repeat
the same procedure in the second and the third
time? Signing the marriage contracts before
the marriage licenses were so obtained on
these three (3) marriages is indicative of
respondents imprudence in this respect that
calls for appropriate measures of admonition.3
On 9 August 1994 this Court referred the report
of Judge Juaban to the OCA for further
evaluation,
report
and
recommendation.
Accordingly, on 15 September 1994 the OCA
submitted a memorandum essentially adopting
the recommendations of Investigating Judge
Juaban but with the proposal that with regard
to the second charge, respondent be fined in
the amount equivalent to his one (1) month
salary.
In an En Banc resolution dated 30 May 1995,
the Supreme Court noted that the report of
Judge Juaban failed to address certain key
issues which were likewise raised in the
complaint, namely: (a) that respondent allowed
complainants name to be placed as witness in
the marriage contract signed by Emmanuel
Plantar and Elizabeth Nacor on 10 May 1989 by

forging her signature; (b) that he falsified the


date when he signed the verification portion of
the complaint and the joint affidavit of the
arresting officers in Crim. Case No. 2388 by
making it appear that he was in the office and
signed the documents on 15 August 1992
when in fact it was only on 20 August 1992
that he went to the court and signed the same;
and, (c) that for monetary consideration, he
changed the joint affidavit of the arresting
officers in order to lay the groundwork for the
dismissal of Crim. Cases Nos. 2307 and 2308.
In justifying the inclusion of the abovementioned charges, the Court opined that
these accusations should have been included
in the investigation as they were embodied in
the reply of complainant to the comment of
respondent Judge. Consequently, the Court
directed the National Bureau of Investigation
(NBI), Cebu City, to conduct an investigation
and submit its report and recommendation on
the (a) alleged forgery of complainants
signature on the marriage contract signed by
Emmanuel Plantar and Elizabeth Nacor on 10
May 1989; and (b) purported falsification of the
joint affidavit of the arresting officers in Crim.
Cases Nos. 2307 and 2308, and of the date
affixed in the verification of the complaint in
Crim. Case No. 2388.
In partial compliance with the Courts directive,
the NBI through Regional Director Florencio
Villarin submitted a report on 2 November
1995 which contained its findings and
conclusions on the examination of the marriage
contract containing complainants alleged
forged signature. It concluded that "(t)he
questioned signatures Pedrita Harayo and the
standard/sample signatures and handwritings
of one Pedrita Harayo were not written by one
and the same person."4

With respect to the alleged falsification of the


joint affidavit of the arresting officers, and of
the date affixed in the verification of the
complaint in Crim. Case No. 2388, the NBI
reports disclosed the following: " (a) as regards
the joint affidavit executed on 23 August 1991,
". . . indicative that they were not typed from
one and the same source/ typewriter;5 (b) as
regards the joint affidavit executed on 15
August 1992 ". . . indicative that they were not
typed
from
one
and
the
same
source/typewriter;"6 and (c) "the questioned
and the standard sample/signatures (of) Jesus
P. Carel were written by one and the same
person.
The
questioned
typewritten
entries/figures reading 15 is NOT altered." 7
Upon receipt of the last report of the NBI, the
Second Division of this Court again referred the
matter to the OCA which in turn recommended
that the matter be "REFERRED BACK" to the
executive judge of RTC, Cebu, for a more
exhaustive
investigation,
report
and
recommendation, particularly on those matters
raised by the complainant but were not
touched in the investigation conducted by
former Executive Judge Generoso Juaban.
On 8 January 2003, Investigating Judge
Galicano Arriesgado, who replaced Judge
Generoso Juaban as Executive Judge, RTCCebu, together with Judges Isaias Dicdican and
Pampio Abarintos, First ViceExecutive Judge
and Second Vice-Executive Judge, respectively,
submitted
their
report
with
the
recommendation that all the charges against
respondent Judge be dismissed for lack of
merit.8 In arriving at their findings and
conclusions, the Investigating Judges said - 9
On the charge that respondent judge allowed
the forging of complainants signature in the
marriage contract x x x x no sufficient proof
was adduced that respondent judge had

personal knowledge, much less, allowed the


commission of the forgery. While it is true that
the NBI result impliedly reported a forgery,
however, the same cannot be directly pointed
to respondent x x x x
On the second charge of falsifying the date in
the verification portion of the joint affidavit of
the police officers in Criminal Case 2388, the
investigation revealed a total lack of evidence
to support the same x x x x In the absence of
proof to the contrary, the best evidence is the
document, which has been, for all intents,
proven not only to be regular, but also to be
without any alterations. Hence, in the normal
course of things, it is logical to presume that
the document was signed by respondent on the
15th and have been filed with and received by
the court on the 18th as appearing on the
official stamp x x x x
On the charge that respondent judge changed
the joint affidavits of the arresting officers in
order to facilitate the dismissal of Criminal
Cases Nos. 2307 and 2308, the same June 1,
2000 report of the NBI did not yield conclusive
results that the questioned affidavits were
typed at the MTC Minglanilla x x x x
On the first charge, there is absolutely no
proof,
other
than
the
unsubstantiated
allegation of the complainant, that respondent
Judge had received pecuniary consideration
from a brother of the accused in exchange for
the dismissal of Crim. Cases Nos. 2307 and
2308. If we were to believe complainants
account of the incident, the payoff was
supposed to have been made outside the
chambers of respondent Judge and in the
presence of lawyers and court employees; in
other words, in open public view a venue
which no sensible perpetrator of a crime would
choose as it would unnecessarily expose him to
the dangers of eventual prosecution. Moreover,

her
allusion
that
respondent
offered
her P100.00, apparently as goodwill money,
becomes even more preposterous considering
that
a
considerable
amount, P15,000.00
or P20,000.00, was supposed to have changed
hands. As pointed out by respondent, P100.00
is an amount too miniscule to buy the silence
of a potential witness to a crime.
On the second charge, we also find
unpersuasive complainants allegation that
respondent improperly utilized the services of
Court Aide Jose Agosto as domestic helper and
driver of his passenger jeepney. This bare
accusation, devoid of corroboration, cannot
nudge this Court into precipitate belief.
On the charge that respondent Judge
solemnized civil marriages for exorbitant fees
without the requisite marriage license, the
records would reveal that on three (3) different
occasions he had indeed signed marriage
contracts, which were undated as to the time
the marriages were solemnized and with the
space provided for the license number left
blank.
In his comment, respondent Judge denied
having solemnized marriages without a
license.1wphi1 He explained that in the first
instance involving the marriage between Didier
and Basan, he signed the marriage contract
only after assurances were made by
complainant that the papers were in order but
collected said documents back and kept them
inside his drawer soon after learning that the
marriage license was indeed missing. In the
other two (2) instances, he also denied having
officiated at the marriage between Bin Osman
and Librea and that of Cabreros and Batto
when informed that the contracting parties
could not produce their respective marriage
licenses.

Indeed, there is nothing in the records that


would indicate that respondent had in fact
solemnized
the
marriages
without
the
mandated license. After all, who could best
prove the existence of this fact other than the
contracting parties themselves? Nonetheless,
there is an inescapable showing that in at least
three (3) different occasions respondent Judge
actually signed the marriage contracts,
admittedly prior to the issuance of the licenses.
Be that as it may, we cannot reject outright, in
the absence of a more convincing evidence en
contra by the complainant, the verity of
respondents assertion that he desisted from
performing marriages upon learning of the
contracting parties failure to produce the
requisite marriage licenses, which was
corroborated by other defense witnesses. But
we cannot also help but register our strong
suspicion that there are more serious
irregularities than meet the eye behind
respondents actuations. Committing the same
act of imprudence three (3) times is one too
many for comfort, casting respondents
motives in serious question. In the absence
however of clear and convincing proof that he
actually solemnized the three (3) marriages
without the marriage licenses, no culpability of
such nature can be ascribed to him.
Nonetheless, respondents admission of signing
the marriage contracts before the issuance of
the requisite marriage licenses, although not
necessarily fraudulent, amounts to gross
negligence, if not gross irresponsibility, in
performing his official functions.
On the charge of forgery by respondent of
complainants signature as witness in a
marriage contract, there appears to be
sufficient basis for the conclusion of the NBI of
an implied forgery on the documents in
question although there is no direct evidence

on who actually committed the forgery. But the


fact is that it happened with respondents
apparent tolerance, if not acquiescence, for
which he should be held accountable.
As regards the allegation of complainant that
respondent falsified the date when he signed
the verification portion of the complaint and
the joint affidavit of the arresting officers in
Crim. Case No. 2388, and that he changed for
monetary consideration the joint affidavit of
the arresting officers in connection with Crim.
Cases Nos. 2307 and 2308, we can only rely, in
the absence of proof to the contrary, on the
findings of the NBI that no alterations were
made on the subject documents.
In sum, respondent, for gratuitously signing
marriage contracts in utter disregard of its
legal effects, had been remiss in his duty of
exercising due care and circumspection in the
performance of his official duties. In doing so,
he exhibited a cavalier proclivity of ignoring
the norms of diligence, efficiency, competence
and dedication expected of a man donning a
judicial robe. Thus, he deserves a more severe
disciplinary sanction than that recommended.
Although the accusations against respondent
Judge do not appear to have been fully
substantiated, the Court cannot let him go
unpunished.
In
Negre
v.
Rivera, 10 we
admonished a municipal judge for signing a
marriage contract where no marriage license
had been issued. Considering that in the
instant case, respondent repeatedly committed
these procedural gaffes, a penalty more severe
must be meted against him.
His serious negligence and irresponsibility in
signing three (3) marriage contracts, allegedly
in blank, and without the requisite marriage
licenses are simply too palpable for this Court

to assume an air of nonchalance and suspend


in midair the fall of the gavel when it should.
WHEREFORE,
the
recommendations
of
Investigating Judges Generoso Juaban and
Galicano
Arriesgado
are
APPROVED,
particularly exonerating respondent Judge
Mamerto Y. Coliflores of the charges against
him, with the exception of his act of signing the
three (3) marriage contracts without the
required marriage licenses for which the Court
finds him administratively liable and is
ORDERED suspended immediately for one (1)
month and to pay a fine equivalent to two (2)
months salary which shall be withheld from his
retirement benefits when he retires.
SO ORDERED.

G.R. No. 174689

October 22, 2007

ROMMEL
JACINTO
SILVERIO, petitioner,
vs.
REPUBLIC
OF
PHILIPPINES, respondent.

DANTES

THE

DECISION
CORONA, J.:
When God created man, He made him
in the likeness of God; He created
them male and female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed
planted by Bathala and she heard
voices coming from inside the bamboo.
"Oh North Wind! North Wind! Please let
us out!," the voices said. She pecked
the reed once, then twice. All of a
sudden, the bamboo cracked and slit
open. Out came two human beings;
one was a male and the other was a
female. Amihan named the man
"Malakas" (Strong) and the woman
"Maganda" (Beautiful). (The Legend of
Malakas and Maganda)
When is a man a man and when is a woman a
woman? In particular, does the law recognize
the changes made by a physician using scalpel,
drugs and counseling with regard to a persons
sex? May a person successfully petition for a
change of name and sex appearing in the birth
certificate to reflect the result of a sex
reassignment surgery?
On November 26, 2002, petitioner Rommel
Jacinto Dantes Silverio filed a petition for the
change of his first name and sex in his birth
certificate in the Regional Trial Court of Manila,

Branch 8. The petition, docketed as SP Case


No. 02-105207, impleaded the civil registrar of
Manila as respondent.

On the scheduled initial hearing, jurisdictional


requirements were established. No opposition
to the petition was made.

Petitioner alleged in his petition that he was


born in the City of Manila to the spouses
Melecio Petines Silverio and Anita Aquino
Dantes on April 4, 1962. His name was
registered as "Rommel Jacinto Dantes Silverio"
in his certificate of live birth (birth certificate).
His sex was registered as "male."

During trial, petitioner testified for himself. He


also presented Dr. Reysio-Cruz, Jr. and his
American fianc, Richard P. Edel, as witnesses.

He further alleged that he is a male


transsexual, that is, "anatomically male but
feels, thinks and acts as a female" and that he
had always identified himself with girls since
childhood.1 Feeling trapped in a mans body, he
consulted several doctors in the United States.
He underwent psychological examination,
hormone treatment and breast augmentation.
His attempts to transform himself to a
"woman" culminated on January 27, 2001 when
he underwent sex reassignment surgery 2 in
Bangkok,
Thailand.
He
was
thereafter
examined by Dr. Marcelino Reysio-Cruz, Jr., a
plastic and reconstruction surgeon in the
Philippines, who issued a medical certificate
attesting that he (petitioner) had in fact
undergone the procedure.

Petitioner filed the present petition not


to evade any law or judgment or any
infraction thereof or for any unlawful
motive but solely for the purpose of
making his birth records compatible
with his present sex.

From then on, petitioner lived as a female and


was in fact engaged to be married. He then
sought to have his name in his birth certificate
changed from "Rommel Jacinto" to "Mely," and
his sex from "male" to "female."
An order setting the case for initial hearing was
published in the Peoples Journal Tonight, a
newspaper of general circulation in Metro
Manila, for three consecutive weeks.3 Copies of
the order were sent to the Office of the Solicitor
General (OSG) and the civil registrar of Manila.

On June 4, 2003, the trial court rendered a


decision4 in favor of petitioner. Its relevant
portions read:

The sole issue here is whether or not


petitioner is entitled to the relief asked
for.
The [c]ourt rules in the affirmative.
Firstly, the [c]ourt is of the opinion that
granting the petition would be more in
consonance with the principles of
justice and equity. With his sexual [reassignment],
petitioner, who has
always felt, thought and acted like a
woman, now possesses the physique of
a female. Petitioners misfortune to be
trapped in a mans body is not his own
doing and should not be in any way
taken against him.
Likewise, the [c]ourt believes that no
harm, injury [or] prejudice will be
caused to anybody or the community
in granting the petition. On the
contrary, granting the petition would
bring the much-awaited happiness on

the part of the petitioner and her


[fianc] and the realization of their
dreams.

Code, Rules 103 and 108 of the Rules of Court


and RA 9048.10
The petition lacks merit.

Finally, no evidence was presented to


show any cause or ground to deny the
present petition despite due notice and
publication thereof. Even the State,
through the [OSG] has not seen fit to
interpose any [o]pposition.
WHEREFORE, judgment is hereby
rendered GRANTING the petition and
ordering the Civil Registrar of Manila to
change the entries appearing in the
Certificate of Birth of [p]etitioner,
specifically for petitioners first name
from "Rommel Jacinto" to MELY and
petitioners
gender
from
"Male"
to FEMALE. 5
On August 18, 2003, the Republic of the
Philippines (Republic), thru the OSG, filed a
petition for certiorari in the Court of Appeals. 6 It
alleged that there is no law allowing the
change of entries in the birth certificate by
reason of sex alteration.
On February 23, 2006, the Court of
Appeals7 rendered a decision8 in favor of the
Republic. It ruled that the trial courts decision
lacked legal basis. There is no law allowing the
change of either name or sex in the certificate
of birth on the ground of sex reassignment
through surgery. Thus, the Court of Appeals
granted the Republics petition, set aside the
decision of the trial court and ordered the
dismissal of SP Case No. 02-105207. Petitioner
moved for reconsideration but it was
denied.9 Hence, this petition.
Petitioner essentially claims that the change of
his name and sex in his birth certificate is
allowed under Articles 407 to 413 of the Civil

A Persons First Name Cannot Be Changed


On the Ground of Sex Reassignment
Petitioner invoked his sex reassignment as the
ground for his petition for change of name and
sex. As found by the trial court:
Petitioner filed the present petition not
to evade any law or judgment or any
infraction thereof or for any unlawful
motive but solely for the purpose of
making
his
birth
records
compatible with his present sex.
(emphasis supplied)
Petitioner believes that after having acquired
the physical features of a female, he became
entitled to the civil registry changes sought.
We disagree.
The State has an interest in the names borne
by individuals and entities for purposes of
identification.11 A change of name is a
privilege, not a right.12 Petitions for change of
name are controlled by statutes. 13 In this
connection, Article 376 of the Civil Code
provides:
ART. 376. No person can change his
name or surname without judicial
authority.

Change of First Name or Nickname.


No entry in a civil register shall be
changed or corrected without a judicial
order,
except
for
clerical
or
typographical errors and change of first
name or nickname which can be
corrected or changed by the concerned
city or municipal civil registrar or
consul general in accordance with the
provisions of this Act and its
implementing rules and regulations.
RA 9048 now governs the change of first
name.14 It vests the power and authority to
entertain petitions for change of first name to
the city or municipal civil registrar or consul
general concerned. Under the law, therefore,
jurisdiction over applications for change of first
name is now primarily lodged with the
aforementioned administrative officers. The
intent and effect of the law is to exclude the
change of first name from the coverage of
Rules 103 (Change of Name) and 108
(Cancellation or Correction of Entries in the
Civil Registry) of the Rules of Court, until and
unless an administrative petition for change of
name is first filed and subsequently denied. 15 It
likewise
lays
down
the
corresponding
venue,16 form17 and procedure. In sum, the
remedy and the proceedings regulating change
of first name are primarily administrative in
nature, not judicial.
RA 9048 likewise provides the grounds for
which change of first name may be allowed:

This Civil Code provision was amended by RA


9048 (Clerical Error Law). In particular, Section
1 of RA 9048 provides:

SECTION 4. Grounds for Change of First


Name or Nickname. The petition for
change of first name or nickname may
be allowed in any of the following
cases:

SECTION
1. Authority
to
Correct
Clerical or Typographical Error and

(1) The petitioner finds the first name


or nickname to be ridiculous, tainted

with dishonor or extremely difficult to


write or pronounce;
(2) The new first name or nickname
has been habitually and continuously
used by the petitioner and he has been
publicly known by that first name or
nickname in the community; or
(3) The change will avoid confusion.
Petitioners basis in praying for the change of
his first name was his sex reassignment. He
intended to make his first name compatible
with the sex he thought he transformed himself
into through surgery. However, a change of
name does not alter ones legal capacity or
civil status.18 RA 9048 does not sanction a
change of first name on the ground of sex
reassignment. Rather than avoiding confusion,
changing petitioners first name for his
declared purpose may only create grave
complications in the civil registry and the
public interest.
Before a person can legally change his given
name, he must present proper or reasonable
cause or any compelling reason justifying such
change.19 In addition, he must show that he will
be prejudiced by the use of his true and official
name.20 In this case, he failed to show, or even
allege, any prejudice that he might suffer as a
result of using his true and official name.
In sum, the petition in the trial court in so far
as it prayed for the change of petitioners first
name was not within that courts primary
jurisdiction as the petition should have been
filed with the local civil registrar concerned,
assuming it could be legally done. It was an
improper remedy because the proper remedy
was administrative, that is, that provided under
RA 9048. It was also filed in the wrong venue
as the proper venue was in the Office of the

Civil Registrar of Manila where his birth


certificate is kept. More importantly, it had no
merit since the use of his true and official
name does not prejudice him at all. For all
these reasons, the Court of Appeals correctly
dismissed petitioners petition in so far as the
change of his first name was concerned.
No Law Allows The Change of Entry In The
Birth Certificate As To Sex On the Ground
of Sex Reassignment
The determination of a persons sex appearing
in his birth certificate is a legal issue and the
court must look to the statutes. 21 In this
connection, Article 412 of the Civil Code
provides:
ART. 412. No entry in the civil register
shall be changed or corrected without a
judicial order.
Together with Article 376 of the Civil Code, this
provision was amended by RA 9048 in so far
as clerical or typographical errors are involved.
The correction or change of such matters can
now
be
made
through
administrative
proceedings and without the need for a judicial
order. In effect, RA 9048 removed from the
ambit of Rule 108 of the Rules of Court the
correction of such errors.22 Rule 108 now
applies only to substantial changes and
corrections in entries in the civil register. 23
Section 2(c) of RA 9048 defines what a "clerical
or typographical error" is:
SECTION 2. Definition of Terms. As
used in this Act, the following terms
shall mean:
xxx

xxx

xxx

(3) "Clerical or typographical


error" refers to a mistake
committed in the performance
of clerical work in writing,
copying, transcribing or typing
an entry in the civil register
that is harmless and innocuous,
such as misspelled name or
misspelled place of birth or the
like, which is visible to the eyes
or
obvious
to
the
understanding, and can be
corrected or changed only by
reference to other existing
record or records: Provided,
however, That
no correction
must involve the change
of nationality,
age,
status
or sex of
the
petitioner.
(emphasis supplied)
Under RA 9048, a correction in the civil registry
involving the change of sex is not a mere
clerical or typographical error. It is a substantial
change for which the applicable procedure is
Rule 108 of the Rules of Court.
The entries envisaged in Article 412 of the Civil
Code and correctable under Rule 108 of the
Rules of Court are those provided in Articles
407 and 408 of the Civil Code:24
ART. 407. Acts, events and judicial
decrees concerning the civil status of
persons shall be recorded in the civil
register.
ART. 408. The following
entered in the civil register:

shall

be

(1) Births; (2) marriages; (3) deaths; (4)


legal separations; (5) annulments of
marriage; (6) judgments declaring
marriages void from the beginning; (7)

legitimations;
(8)
adoptions;
(9)
acknowledgments of natural children;
(10) naturalization; (11) loss, or (12)
recovery of citizenship; (13) civil
interdiction; (14) judicial determination
of filiation; (15) voluntary emancipation
of a minor; and (16) changes of name.
The acts, events or factual errors contemplated
under Article 407 of the Civil Code include even
those that occur after birth.25 However, no
reasonable interpretation of the provision can
justify the conclusion that it covers the
correction on the ground of sex reassignment.
To correct simply means "to make or set aright;
to remove the faults or error from" while to
change means "to replace something with
something else of the same kind or with
something that serves as a substitute."26 The
birth certificate of petitioner contained no error.
All
entries
therein,
including
those
corresponding to his first name and sex, were
all correct. No correction is necessary.
Article 407 of the Civil Code authorizes the
entry in the civil registry of certain acts (such
as
legitimations,
acknowledgments
of
illegitimate
children
and
naturalization), events (such
as
births,
marriages,
naturalization
and
deaths)
and judicial decrees (such as legal separations,
annulments of marriage, declarations of nullity
of marriages, adoptions, naturalization, loss or
recovery of citizenship, civil interdiction,
judicial determination of filiation and changes
of name). These acts, events and judicial
decrees produce legal consequences that
touch upon the legal capacity, status and
nationality of a person. Their effects are
expressly sanctioned by the laws. In contrast,
sex reassignment is not among those acts or
events mentioned in Article 407. Neither is it

recognized nor even mentioned by any law,


expressly or impliedly.
"Status" refers to the circumstances affecting
the legal situation (that is, the sum total of
capacities and incapacities) of a person in view
of his age, nationality and his family
membership.27
The status of a person in law includes
all
his
personal
qualities
and
relations, more or less permanent in
nature, not ordinarily terminable
at his own will, such as his being
legitimate or illegitimate, or his being
married or not. The comprehensive
term status include such matters as
the beginning and end of legal
personality, capacity to have rights in
general, family relations, and its
various
aspects,
such
as
birth,
legitimation, adoption, emancipation,
marriage, divorce, and sometimes even
succession.28 (emphasis supplied)
A persons sex is an essential factor in
marriage and family relations. It is a part of a
persons legal capacity and civil status. In this
connection, Article 413 of the Civil Code
provides:
ART. 413. All other matters pertaining
to the registration of civil status shall
be governed by special laws.
But there is no such special law in the
Philippines governing sex reassignment and its
effects. This is fatal to petitioners cause.
Moreover, Section 5 of Act 3753 (the Civil
Register Law) provides:

SEC. 5. Registration and certification of


births. The declaration of the
physician or midwife in attendance at
the birth or, in default thereof, the
declaration of either parent of the
newborn child, shall be sufficient for
the registration of a birth in the civil
register. Such declaration shall be
exempt from documentary stamp tax
and shall be sent to the local civil
registrar not later than thirty days after
the birth, by the physician or midwife
in attendance at the birth or by either
parent of the newborn child.
In such declaration, the person above
mentioned shall certify to the following
facts: (a) date and hour of birth;
(b) sex and nationality of infant; (c)
names, citizenship and religion of
parents or, in case the father is not
known, of the mother alone; (d) civil
status of parents; (e) place where the
infant was born; and (f) such other data
as may be required in the regulations
to be issued.
xxx
supplied)

xxx

xxx (emphasis

Under the Civil Register Law, a birth certificate


is a historical record of the facts as they
existed at the time of birth. 29 Thus, the sex of a
person is determined at birth, visually done by
the birth attendant (the physician or midwife)
by examining the genitals of the infant.
Considering that there is no law legally
recognizing
sex
reassignment,
the
determination of a persons sex made at the
time of his or her birth, if not attended by
error,30is immutable.31
When words are not defined in a statute they
are to be given their common and ordinary

meaning in the absence of a contrary


legislative intent. The words "sex," "male" and
"female" as used in the Civil Register Law and
laws concerning the civil registry (and even all
other laws) should therefore be understood in
their common and ordinary usage, there being
no legislative intent to the contrary. In this
connection, sex is defined as "the sum of
peculiarities of structure and function that
distinguish a male from a female" 32 or "the
distinction
between
male
and
female."33 Female is "the sex that produces ova
or bears young"34 and male is "the sex that has
organs to produce spermatozoa for fertilizing
ova."35 Thus, the words "male" and "female" in
everyday understanding do not include persons
who have undergone sex reassignment.
Furthermore, "words that are employed in a
statute which had at the time a well-known
meaning are presumed to have been used in
that sense unless the context compels to the
contrary."36 Since the statutory language of the
Civil Register Law was enacted in the early
1900s and remains unchanged, it cannot be
argued that the term "sex" as used then is
something alterable through surgery or
something that allows a post-operative maleto-female transsexual to be included in the
category "female."
For these reasons, while petitioner may have
succeeded in altering his body and appearance
through the intervention of modern surgery, no
law authorizes the change of entry as to sex in
the civil registry for that reason. Thus, there is
no legal basis for his petition for the correction
or change of the entries in his birth certificate.

of justice and equity. It believed that allowing


the petition would cause no harm, injury or
prejudice to anyone. This is wrong.
The changes sought by petitioner will have
serious and wide-ranging legal and public
policy consequences. First, even the trial court
itself found that the petition was but
petitioners first step towards his eventual
marriage to his male fianc. However,
marriage, one of the most sacred social
institutions, is a special contract of permanent
union between a man and a woman.37 One of
its essential requisites is the legal capacity of
the contracting parties who must be a male
and a female.38 To grant the changes sought by
petitioner will substantially reconfigure and
greatly alter the laws on marriage and family
relations. It will allow the union of a man with
another man who has undergone sex
reassignment (a male-to-female post-operative
transsexual). Second, there are various laws
which apply particularly to women such as the
provisions of the Labor Code on employment of
women,39 certain felonies under the Revised
Penal
Code40 and
the
presumption
of
survivorship in case of calamities under Rule
131 of the Rules of Court,41 among others.
These laws underscore the public policy in
relation to women which could be substantially
affected if petitioners petition were to be
granted.

Neither
May
Entries
in
the
Birth
Certificate As to First Name or Sex Be
Changed on the Ground of Equity

It is true that Article 9 of the Civil Code


mandates that "[n]o judge or court shall
decline to render judgment by reason of the
silence, obscurity or insufficiency of the law."
However, it is not a license for courts to
engage in judicial legislation. The duty of the
courts is to apply or interpret the law, not to
make or amend it.

The trial court opined that its grant of the


petition was in consonance with the principles

In our system of government, it is for the


legislature, should it choose to do so, to

determine what guidelines should govern the


recognition of the effects of sex reassignment.
The need for legislative guidelines becomes
particularly important in this case where the
claims asserted are statute-based.
To reiterate, the statutes define who may file
petitions for change of first name and for
correction or change of entries in the civil
registry, where they may be filed, what
grounds may be invoked, what proof must be
presented and what procedures shall be
observed. If the legislature intends to confer on
a person who has undergone sex reassignment
the privilege to change his name and sex to
conform with his reassigned sex, it has to enact
legislation laying down the guidelines in turn
governing the conferment of that privilege.
It might be theoretically possible for this Court
to write a protocol on when a person may be
recognized as having successfully changed his
sex. However, this Court has no authority to
fashion a law on that matter, or on anything
else. The Court cannot enact a law where no
law exists. It can only apply or interpret the
written word of its co-equal branch of
government, Congress.
Petitioner pleads that "[t]he unfortunates are
also entitled to a life of happiness,
contentment and [the] realization of their
dreams." No argument about that. The Court
recognizes that there are people whose
preferences and orientation do not fit neatly
into the commonly recognized parameters of
social convention and that, at least for them,
life is indeed an ordeal. However, the remedies
petitioner seeks involve questions of public
policy to be addressed solely by the legislature,
not by the courts.
WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

SO ORDERED.