THIRD DIVISION
wit, the fact of the administration of the
[A.M. No. P-94-1054. March 11, 2003.]
EDWIN A. ACEBEDO, petitioner, vs. EDDIE
P. ARQUERO, respondent.
SYNOPSIS
By a letter-complaint, petitioner herein
charged respondent with immorality.
Petitioner alleged that his wife and the
respondent unlawfully and scandalously
cohabited as husband and wife as a result of
which a baby girl was born. The investigating
judge dismissed the complaint for failure to
adduce adequate evidence to show that
respondent was guilty of the charge. The
report focused on the non-appearance of the
petitioner and that of his wife. The Office of
the Court Administrator disagreed with the
report and recommendation of the
investigating judge, and recommended instead
that respondent be held guilty of immorality
and be suspended from office for a period of
one year without pay. ICTaEH
According to the Supreme Court, while
complainant appeared to have lost interest in
the prosecution of the case filed, the same did
not ipso fact warrant its dismissal. Once an
administrative charge had been filed, the
Supreme Court may not be divested of its
jurisdiction to investigate and ascertain the
truth thereof. Respondent's act of having illicit
relations with petitioner's 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. Since, the
present charge of immorality against
respondent constituted his first offense, his
suspension of six months and one day was
ordered by the Court.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE;
DOCUMENTARY EVIDENCE; CANONICAL
CERTIFICATE; DOES NOT PROVE THE
VERACITY AND DECLARATION CONCERNING
THE PARENTAGE OF THE CHILD BAPTIZED.
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
baptized. It merely attests to the fact which
gave rise to its issue, and the date thereof, to
sacrament on the date stated, but not the
truth of the statements therein as to the
parentage of the child baptized.
2. ID.; ID.; ID.; STIPULATION OF THE
PARTIES; HAS ABSOLUTELY NO FORCE AND
EFFECT ON THE VALIDITY OF MARRIAGE;
RATIONALE. 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. aDcHIS
3. POLITICAL LAW; LAW ON PUBLIC
OFFICERS; COURT PERSONNEL; NO
POSITION IN GOVERNMENT SERVICE
EXACTS A GREATER DEMAND FOR MORAL
RIGHTEOUSNESS AND UPRIGHTNESS THAN
IN THE JUDICIARY; RATIONALE. Republic
Act 6713, otherwise known as the Code of
Conduct and Ethical Standards for Public
Officials and Employees, enunciates the
State's policy of promoting a high standard of
ethics and utmost responsibility in the public
service. 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. That is why
this Court has firmly laid down exacting
standards of morality and decency expected of
those in the service of the judiciary. Their
conduct, not to mention behavior, is
circumscribed with the heavy burden of
responsibility, characterized by, among other
things, propriety and decorum so as to earn
and keep the public's respect and confidence
in the judicial service. 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. There is no dichotomy of morality;
court employees are also judged by their
private morals.
4. ID.; ADMINISTRATIVE LAW;
DISGRACEFUL AND IMMORAL CONDUCT;
PENALTY. Respondent's act of having illicit
relations with complainant's 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.
DcIHSa
DECISION
CARPIO-MORALES, J p:
By letter-complaint 1 dated June 1, 1994,
Edwin A. Acebedo charged Eddie P. Arquero,
Process Server of the Municipal Trial Court
(MTC) of Brooke's Point, Palawan for
immorality. ICTcDA
Complainant alleged that his wife, Dedje
Irader Acebedo, a former stenographer of the
MTC Brooke's Point, and respondent
unlawfully and scandalously cohabited as
husband and wife at Bancudo Pulot, Brooke's
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 girl's Baptismal Certificate
2 reflecting the names of respondent and
Dedje Irader as her parents. Also attached to
the letter-complaint 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
complainant's 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
complainant's 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 xxx 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.
xxx xxx xxx 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. 14-15). 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 co-court
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, . . . "shall at all 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 extra-marital 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.
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. I'm 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.
xxx xxx xxx 14
(Emphasis supplied; underscoring in the
original).
While the 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 the direction may not
be derailed by the complainant's desistance
from prosecuting the case he initiated. 16
On the merits of the case, the entry of
respondent's name as father in the baptismal
certificate of Desiree May I. Arquero cannot be
used to prove for 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
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 statement therein as to the
parentage of the child baptized. 18
By respondent's own admission, however, he
had an illicit relationship with complainant's
wife:
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?
A: During that time that I have heard she
and her husband have parted ways already, I
joking 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.
Q: For how long was this short lived
relation you made 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 ma'am. 19 (Emphasis and
underscoring supplied).
Respondent justified his pursuing a behavior, is circumscribed with the heavy
relationship with complainant's wife with the
spouses having priorly entered into a
settlement with respect to their marriage
which was embodied in a "Kasunduan," 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, Broke's
(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;
xxx xxx xxx 20
(Italics supplied)
Respondent's 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 State's 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 morality and
decency expected of those in the service of the
judiciary. 24 Their conduct, not to mention
burden of responsibility, 25 characterized by,
among other things, propriety and decorum so
as to earn and keep the public's 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 behaviour outside the
court as private individuals. 27 There is no
dichotomy of morality; court employees are
also judged by their private morals. 28
Respondent's act of having illicit relations with
complainant's 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 Brooke's 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.
HAaDTE
Let a copy of this decision be filed in the
personal record of respondent.
SO ORDERED.
Puno, Panganiban, Sandoval-Gutierrez and
Corona, JJ., concur.
SECOND DIVISION
[A.C. No. 9081. October 12, 2011.]
RODOLFO A. ESPINOSA and MAXIMO A.
GLINDO, complainants, vs. ATTY. JULIETA
A. OMAA, respondent.
DECISION
CARPIO, J p:
The Case
Before the Court is a complaint for disbarment
filed by Rodolfo A. Espinosa (Espinosa) and
Maximo A. Glindo (Glindo) against Atty.
Julieta A. Omaa (Omaa). SHacCD
The Antecedent Facts
Complainants Espinosa and Glindo charged
Omaa with violation of her oath as a lawyer,
malpractice, and gross misconduct in office.
Complainants alleged that on 17 November
1997, Espinosa and his wife Elena Marantal
(Marantal) sought Omaa's legal advice on
whether they could legally live separately and
dissolve their marriage solemnized on 23 July
1983. Omaa then prepared a document
entitled "Kasunduan Ng Paghihiwalay"
(contract) which reads:
REPUBLIKA NG PILIPINAS
BAYAN NG GUMACA
LALAWIGAN NG QUEZON
KASUNDUAN NG PAGHIHIWALAY
KAMI, ELENA MARANTAL AT RODOLFO
ESPINOSA, mga Filipino, may sapat na
gulang, dating legal na mag-asawa,
kasalukuyang naninirahan at may pahatirang
sulat sa Brgy. Buensoceso, Gumaca, Quezon,
at COMELEC, Intramuros, Manila ayon sa
pagkakasunod-sunod, matapos
makapanumpa ng naaayon sa batas ay
nagpapatunay ng nagkasundo ng mga
sumusunod: HcaDTE
1. Na nais na naming maghiwalay at
magkanya-kanya ng aming mga buhay ng
walang pakialaman, kung kaya't bawat isa sa
amin ay maaari ng humanap ng makakasama
sa buhay;
2. Na ang aming mga anak na sina Ariel
John Espinosa, 14 na taong gulang; Aiza
Espinosa, 11 taong gulang at Aldrin Espinosa,
10 taong gulang ay namili na kung kanino
sasama sa aming dalawa. Si Ariel John at Aiza
Espinosa ay sasama sa kanilang ama, Rodolfo
Espinosa, at ang bunso, Aldrin Espinosa ay
sasama naman sa ina na si Elena;
3. Na dahil sina Ariel John at Aiza ay
nagsisipag-aral sa kasalukuyan sila ay
pansamantalang mananatili sa kanilang ina,
habang tinatapos ang kanilang pag-aaral. Sa
pasukan sila ay maaari ng isama ng ama, sa
lugar kung saan siya ay naninirahan;
4. Na ang mga bata ay maaaring dalawin
ng sino man sa aming dalawa tuwing may
pagkakataon;
5. Na magbibigay ng buwanang gastusin o
suporta ang ama kay Aldrin at ang
kakulangan sa mga pangangailangan nito ay
pupunan ng ina; EDIaSH
6. Na lahat ng mga kasangkapan sa
bahay tulad ng T.V., gas stove, mga
kagamitan sa kusina ay aking (Rodolfo)
ipinagkakaloob kay Elena at hindi na ako
interesado dito;
7. Na lahat ng maaaring maipundar ng
sino man sa amin dalawa sa mga panahong
darating ay aming mga sari-sariling pag-aari
na at hindi na pinagsamahan o conjugal.
BILANG PATUNAY ng lahat ng ito, nilagdaan
namin ito ngayong ika-17 ng Nobyembre,
1997, dito sa Gumaca, Quezon.
(Sgd) (Sgd)
ELENA MARANTAL RODOLFO
ESPINOSA
Nagkasundo Nagkasundo
PINATUNAYAN AT PINANUMPAAN dito sa
harap ko ngayong ika-17 ng Nobyembre,
1997, dito sa Gumaca, Quezon
ATTY. JULIETA A. OMAA
Notary Public
PTR No. 3728169; 1-10-97
Gumaca, Quezon
Doc. No. 482;
Page No. 97;
Book No. XI;
Series of 1997.
Complainants alleged that Marantal and
Espinosa, fully convinced of the validity of the
contract dissolving their marriage, started
implementing its terms and conditions.
However, Marantal eventually took custody of
all their children and took possession of most
of the property they acquired during their
union.
Espinosa sought the advice of his fellow
employee, complainant Glindo, a law
graduate, who informed him that the contract
executed by Omaa was not valid. Espinosa
and Glindo then hired the services of a lawyer
to file a complaint against Omaa before the
Integrated Bar of the Philippines Commission
on Bar Discipline (IBP-CBD).
Omaa alleged that she knows Glindo but she
does not personally know Espinosa. She
denied that she prepared the contract. She
admitted that Espinosa went to see her and
requested for the notarization of the contract
but she told him that it was illegal. Omaa
alleged that Espinosa returned the next day
while she was out of the office and managed to
persuade her part-time office staff to notarize
the document. Her office staff forged her
signature and notarized the contract. Omaa
presented Marantal's "Sinumpaang Salaysay"
(affidavit) to support her allegations and to
show that the complaint was instigated by
Glindo. Omaa further presented a letter of
apology from her staff, Arlene Dela Pea,
acknowledging that she notarized the
document without Omaa's knowledge,
consent, and authority. EHTIcD
Espinosa later submitted a "Karagdagang
Salaysay" stating that Omaa arrived at his
residence together with a girl whom he later
recognized as the person who notarized the
contract. He further stated that Omaa was
not in her office when the contract was
notarized.
The Decision of the Commission on Bar
Discipline
In its Report and Recommendation 1 dated 6
February 2007, the IBP-CBD stated that
Espinosa's desistance did not put an end to
the proceedings. The IBP-CBD found that
Omaa violated Rule 1.01, Canon 1 of the
Code of Professional Responsibility which
provides that a lawyer shall not engage in
unlawful, dishonest, immoral or deceitful
conduct. The IBP-CBD stated that Omaa had
failed to exercise due diligence in the
performance of her function as a notary public
and to comply with the requirements of the
law. The IBP-CBD noted the inconsistencies in
the defense of Omaa who first claimed that it
was her part-time staff who notarized the
contract but then later claimed that it was her
former maid who notarized it. The IBP-CBD
found:
Respondent truly signed the questioned
document, yet she still disclaimed its
authorship, thereby revealing much more her
propensity to lie and make deceit, which she
is deserving [of] disciplinary sanction or
disbarment.
The IBP-CBD recommended that Omaa be
suspended for one year from the practice of
law and for two years as a notary public.
In a Resolution dated 19 September 2007, the
IBP Board of Governors adopted and approved
the recommendation of the IBP-CBD.
Omaa filed a motion for reconsideration.
In a Resolution dated 26 June 2011, the IBP
Board of Governors denied Omaa's motion
for reconsideration.
The Issue
The sole issue in this case is whether Omaa
violated the Canon of Professional
Responsibility in the notarization of Marantal
and Espinosa's "Kasunduan ng Paghihiwalay."
The Ruling of this Court
We adopt the findings and recommendation of
the IBP-CBD.
This case is not novel. This Court has ruled
that the extrajudicial dissolution of the
conjugal partnership without judicial approval
is void. 2 The Court has also ruled that a
notary public should not facilitate the
disintegration of a marriage and the family by
encouraging the separation of the spouses and
extrajudicially dissolving the conjugal
partnership, 3 which is exactly what Omaa
did in this case. cETCID
In Selanova v. Judge Mendoza, 4 the Court
cited a number of cases where the lawyer was
sanctioned for notarizing similar documents
as the contract in this case, such as:
notarizing a document between the spouses
which permitted the husband to take a
concubine and allowed the wife to live with
another man, without opposition from each
other; 5 ratifying a document entitled "Legal
Separation" where the couple agreed to be
separated from each other mutually and
voluntarily, renouncing their rights and
obligations, authorizing each other to remarry,
and renouncing any action that they might
have against each other; 6 preparing a
document authorizing a married couple who
had been separated for nine years to marry
again, renouncing the right of action which
each may have against the other; 7 and
preparing a document declaring the conjugal
partnership dissolved. 8
We cannot accept Omaa's allegation that it
was her part-time office staff who notarized
the contract. We agree with the IBP-CBD that
Omaa herself notarized the contract. Even if
it were true that it was her part-time staff who
notarized the contract, it only showed
Omaa's negligence in doing her notarial
duties. We reiterate that a notary public is
personally responsible for the entries in his
notarial register and he could not relieve
himself of this responsibility by passing the
blame on his secretaries 9 or any member of
his staff.
We likewise agree with the IBP-CBD that in
preparing and notarizing a void document,
Omaa violated Rule 1.01, Canon 1 of the
Code of Professional Responsibility which
provides that "[a] lawyer shall not engage in
unlawful, dishonest, immoral or deceitful
conduct." Omaa knew fully well that the
"Kasunduan Ng Paghihiwalay" has no legal
effect and is against public policy. Therefore,
Omaa may be suspended from office as an
attorney for breach of the ethics of the legal
profession as embodied in the Code of
Professional Responsibility. 10
WHEREFORE, we SUSPEND Atty. Julieta A.
Omaa from the practice of law for ONE
YEAR. We REVOKE Atty. Omaa's notarial
commission, if still existing, and SUSPEND
her as a notary public for TWO YEARS.
Let a copy of this Decision be attached to Atty.
Omaa's personal record in the Office of the
Bar Confidant. Let a copy of this Decision be
also furnished to all chapters of the Integrated
Bar of the Philippines and to all courts in the
land. AIHECa
SO ORDERED.
Brion, Sereno, Reyes and Perlas-Bernabe, *
JJ., concur.
SECOND DIVISION
[G.R. No. 173540. January 22, 2014.]
PEREGRINA MACUA VDA. DE AVENIDO,
petitioner, vs. TECLA HOYBIA AVENIDO,
respondent.
DECISION
PEREZ, J p:
This is a Petition for Review on Certiorari
under Rule 45 of the Rules of Court, assailing
the 31 August 2005 Decision 1 of the Court of
Appeals (CA) in CA-G.R. CV No. 79444, which
reversed the 25 March 2003 Decision 2 of the
Regional Trial Court (RTC), Branch 8 of Davao
City, in a complaint for Declaration of
Absolute Nullity of Marriage docketed as Civil
Case No. 26, 908-98. ETaSDc
The Facts
This case involves a contest between two
women both claiming to have been validly
married to the same man, now deceased.
Respondent Tecla Hoybia Avenido (Tecla)
instituted on 11 November 1998, a Complaint
for Declaration of Nullity of Marriage against
Peregrina Macua Vda. de Avenido (Peregrina)
on the ground that she (Tecla), is the lawful
wife of the deceased Eustaquio Avenido
(Eustaquio). In her complaint, Tecla alleged
that her marriage to Eustaquio was
solemnized on 30 September 1942 in Talibon,
Bohol in rites officiated by the Parish Priest of
the said town. According to her, the fact of
their marriage is evidenced by a Marriage
Certificate recorded with the Office of the
Local Civil Registrar (LCR) of Talibon, Bohol.
However, due to World War II, records were
destroyed. Thus, only a Certification 3 was
issued by the LCR.
During the existence of Tecla and Eustaquio's
union, they begot four (4) children, namely:
Climaco H. Avenido, born on 30 March 1943;
Apolinario H. Avenido, born on 23 August
1948; Editha A. Ausa, born on 26 July 1950,
and Eustaquio H. Avenido, Jr., born on 15
December 1952. Sometime in 1954, Eustaquio
left his family and his whereabouts was not
known. In 1958, Tecla and her children were
informed that Eustaquio was in Davao City
living with another woman by the name of
Buenaventura Sayson who later died in 1977
without any issue. DHIcET
In 1979, Tecla learned that her husband
Eustaquio got married to another woman by
the name of Peregrina, which marriage she
claims must be declared null and void for
being bigamous an action she sought to
protect the rights of her children over the
properties acquired by Eustaquio.
On 12 April 1999, Peregrina filed her answer
to the complaint with counterclaim, 4
essentially averring that she is the legal
surviving spouse of Eustaquio who died on 22
September 1989 in Davao City, their marriage
having been celebrated on 30 March 1979 at
St. Jude Parish in Davao City. She also
contended that the case was instituted to
deprive her of the properties she owns in her
own right and as an heir of Eustaquio.
Trial ensued.
Tecla presented testimonial and documentary
evidence consisting of:
1) Testimonies of Adelina Avenido-Ceno
(Adelina), Climaco Avenido (Climaco) and
Tecla herself to substantiate her alleged prior
existing and valid marriage with (sic)
Eustaquio;
2) Documentary evidence such as the
following:
a. Certification of Loss/Destruction of
Record of Marriage from 1900 to 1944 issued
by the Office of the Civil Registrar,
Municipality of Talibon, Bohol; 5
b. Certification of Submission of a copy of
Certificate of Marriage to the Office of the Civil
Registrar General, National Statistics Office
(NSO), R. Magsaysay Blvd., Sta. Mesa, Manila;
6
c. Certification that Civil Registry records
of births, deaths and marriages that were
actually filed in the Office of the Civil Registrar
General, NSO Manila, started only in 1932; 7
CSDTac
d. Certification that Civil Registry records
submitted to the Office of the Civil Registrar
General, NSO, from 1932 to the early part of
1945, were totally destroyed during the
liberation of Manila; 8
e. Certification of Birth of Apolinario
Avenido; 9
f. Certification of Birth of Eustaquio
Avenido, Jr.; 10
g. Certification of Birth of Editha Avenido;
11
h. Certification of Marriage between
Eustaquio Sr., and Tecla issued by the Parish
Priest of Talibon, Bohol on 30 September
1942; 12
i. Certification that record of birth from
1900 to 1944 were destroyed by Second World
War issued by the Office of the Municipal
Registrar of Talibon, Bohol, that they cannot
furnish as requested a true transcription from
the Register of Birth of Climaco Avenido; 13
j. Certificate of Baptism of Climaco
indicating that he was born on 30 March 1943
to spouses Eustaquio and Tecla; 14
k. Electronic copy of the Marriage
Contract between Eustaquio and Peregrina. 15
On the other hand, Peregrina testified on,
among others, her marriage to Eustaquio that
took place in Davao City on 3 March 1979; her
life as a wife and how she took care of
Eustaquio when he already had poor health,
as well as her knowledge that Tecla is not the
legal wife, but was once a common law wife of
Eustaquio. 16 Peregrina likewise set forth
documentary evidence to substantiate her
allegations and to prove her claim for
damages, to wit:
1) Marriage Contract 17 between
Peregrina and the late Eustaquio showing the
date of marriage on 3 March 1979; cDaEAS
2) Affidavit of Eustaquio executed on 22
March 1985 declaring himself as single when
he contracted marriage with the petitioner
although he had a common law relation with
one Tecla Hoybia with whom he had four (4)
children namely: Climaco, Tiburcio, Editha
and Eustaquio, Jr., all surnamed Avenido; 18
3) Letter of Atty. Edgardo T. Mata dated
15 April 2002, addressed to the Civil Registrar
of the Municipality of Alegria, Surigao del
Norte; 19 and
4) Certification dated 25 April 2002 issued
by Colita P. Umipig, in her capacity as the
Civil Registrar of Alegria, Surigao del Norte. 20
In addition, as basis for the counterclaim,
Peregrina averred that the case was initiated
in bad faith so as to deprive her of the
properties she owns in her own right and as
an heir of Eustaquio; hence, her entitlement
to damages and attorney's fees.
On 25 March 2003, the RTC rendered a
Decision 21 denying Tecla's petition, as well
as Peregrina's counter-claim. The dispositive
portion thereof reads:
For the Foregoing, the petition for the
"DECLARATION OF NULLITY OF MARRIAGE"
filed by petitioner TECLA HOYBIA AVENIDO
against respondent PEREGRINA MACUA is
hereby DENIED.
The "COUNTERCLAIM" filed by respondent
PEREGRINA MACUA against petitioner TECLA
HOYBIA AVENIDO is hereby DISMISSED. 22
Not convinced, Tecla appealed to the CA
raising as error the trial court's alleged
disregard of the evidence on the existence of
her marriage to Eustaquio. HETDAC
In its 31 August 2005 Decision, 23 the CA
ruled in favor of Tecla by declaring the validity
of her marriage to Eustaquio, while
pronouncing on the other hand, the marriage
between Peregrina and Eustaquio to be
bigamous, and thus, null and void. The CA
ruled:
The court a quo committed a reversible error
when it disregarded (1) the testimonies of
[Adelina], the sister of EUSTAQUIO who
testified that she personally witnessed the
wedding celebration of her older brother
EUSTAQUIO and [Tecla] on 30 September
1942 at Talibon, Bohol; [Climaco], the eldest
son of EUSTAQUIO and [Tecla], who testified
that his mother [Tecla] was married to his
father, EUSTAQUIO, and [Tecla] herself; and
(2) the documentary evidence mentioned at
the outset. It should be stressed that the due
execution and the loss of the marriage
contract, both constituting the condition sine
qua non, for the introduction of secondary
evidence of its contents, were shown by the
very evidence the trial court has disregarded.
24
Peregrina now questions the said ruling
assigning as error, among others, the failure
of the CA to appreciate the validity of her
marriage to Eustaquio. For its part, the Office
of the Solicitor General (OSG), in its
Memorandum 25 dated 5 June 2008, raises
the following legal issues:
1. Whether or not the court can validly
rely on the "presumption of marriage" to
overturn the validity of a subsequent
marriage;
2. Whether or not secondary evidence may
be considered and/or taken cognizance of,
without proof of the execution or existence
and the cause of the unavailability of the best
evidence, the original document; and
3. Whether or not a Certificate of Marriage
issued by the church has a probative value to
prove the existence of a valid marriage without
the priest who issued the same being
presented to the witness stand. 26 DCHIAS
Our Ruling
Essentially, the question before us is whether
or not the evidence presented during the trial
proves the existence of the marriage of Tecla
to Eustaquio.
The trial court, in ruling against Tecla's claim
of her prior valid marriage to Eustaquio relied
on Tecla's failure to present her certificate of
marriage to Eustaquio. Without such
certificate, the trial court considered as
useless the certification of the Office of the
Civil Registrar of Talibon, Bohol, that it has no
more records of marriages during the period
1900 to 1944. The same thing was said as
regards the Certification issued by the
National Statistics Office of Manila. The trial
court observed:
Upon verification from the NSO, Office of the
Civil Registrar General, Manila, it, likewise,
issued a Certification (Exhibit "B") stating
that:
records from 1932 up to early part of 1945
were totally destroyed during the liberation of
Manila on February 4, 1945. What are
presently filed in this office are records from
the latter part of 1945 to date, except for the
city of Manila which starts from 1952. Hence,
this office has no way of verifying and could
not issue as requested, certified true copy of
the records of marriage between [Eustaquio]
and [Tecla], alleged to have been married on
30th September 1942, in Talibon, Bohol. 27
In the absence of the marriage contract, the
trial court did not give credence to the
testimony of Tecla and her witnesses as it
considered the same as mere self-serving
assertions. Superior significance was given to
the fact that Tecla could not even produce her
own copy of the said proof of marriage. Relying
on Section 3 (a) and Section 5, Rule 130 of the
Rules of Court, the trial court declared that
Tecla failed to prove the existence of the first
marriage. HICEca
The CA, on the other hand, concluded that
there was a presumption of lawful marriage
between Tecla and Eustaquio as they deported
themselves as husband and wife and begot
four (4) children. Such presumption,
supported by documentary evidence
consisting of the same Certifications
disregarded by the trial court, as well as the
testimonial evidence especially that of Adelina
Avenido-Ceno, created, according to the CA,
sufficient proof of the fact of marriage.
Contrary to the trial court's ruling, the CA
found that its appreciation of the evidence
presented by Tecla is well in accord with
Section 5, Rule 130 of the Rules of Court.
We uphold the reversal by the CA of the
decision of the trial court. Quite recently, in
Aonuevo v. Intestate Estate of Rodolfo G.
Jalandoni, 28 we said, citing precedents, that:
While a marriage certificate is considered the
primary evidence of a marital union, it is not
regarded as the sole and exclusive evidence of
marriage. Jurisprudence teaches that the fact
of marriage may be proven by relevant
evidence other than the marriage certificate.
Hence, even a person's birth certificate may be
recognized as competent evidence of the
marriage between his parents.
The error of the trial court in ruling that
without the marriage certificate, no other
proof of the fact can be accepted, has been
aptly delineated in Vda de Jacob v. Court of
Appeals. 29 Thus:
It should be stressed that the due execution
and the loss of the marriage contract, both
constituting the conditio sine qua non for the
introduction of secondary evidence of its
contents, were shown by the very evidence
they have disregarded. They have thus
confused the evidence to show due execution
and loss as "secondary" evidence of the
marriage. In Hernaez v. Mcgrath, the Court
clarified this misconception thus: DcHaET
. . . [T]he court below was entirely mistaken in
holding that parol evidence of the execution of
the instrument was barred. The court
confounded the execution and the contents of
the document. It is the contents, . . . which
may not be prove[n] by secondary evidence
when the instrument itself is accessible.
Proofs of the execution are not dependent on
the existence or non-existence of the
document, and, as a matter of fact, such
proofs of the contents: due execution, besides
the loss, has to be shown as foundation for
the introduction of secondary evidence of the
contents.
xxx xxx xxx
Evidence of the execution of a document is, in
the last analysis, necessarily collateral or
primary. It generally consists of parol
testimony or extrinsic papers. Even when the
document is actually produced, its authencity
is not necessarily, if at all, determined from its
face or recital of its contents but by parol
evidence. At the most, failure to produce the
document, when available, to establish its
execution may effect the weight of the
evidence presented but not the admissibility of
such evidence.
The Court of Appeals, as well as the trial
court, tried to justify its stand on this issue by
relying on Lim Tanhu v. Ramolete. But even
there, we said that "marriage may be prove[n]
by other competent evidence.
Truly, the execution of a document may be
proven by the parties themselves, by the
swearing officer, by witnesses who saw and
recognized the signatures of the parties; or
even by those to whom the parties have
previously narrated the execution thereof. The
Court has also held that "[t]he loss may be
shown by any person who [knows] the fact of
its loss, or by any one who ha[s] made, in the
judgment of the court, a sufficient
examination in the place or places where the
document or papers of similar character are
usually kept by the person in whose custody
the document lost was, and has been unable
to find it; or who has made any other
investigation which is sufficient to satisfy the
court that the instrument [has] indeed [been]
lost."
In the present case, due execution was
established by the testimonies of Adela Pilapil,
who was present during the marriage
ceremony, and of petitioner herself as a party
to the event. The subsequent loss was shown
by the testimony and the affidavit of the
officiating priest, Monsignor Yllana, as
relevant, competent and admissible evidence.
Since the due execution and the loss of the
marriage contract were clearly shown by the
evidence presented, secondary evidence-
testimonial and documentary-may be
admitted to prove the fact of marriage. 30
As correctly stated by the appellate court:
aSHAIC
In the case at bench, the celebration of
marriage between [Tecla] and EUSTAQUIO
was established by the testimonial evidence
furnished by [Adelina] who appears to be
present during the marriage ceremony, and by
[Tecla] herself as a living witness to the event.
The loss was shown by the certifications
issued by the NSO and LCR of Talibon, Bohol.
These are relevant, competent and admissible
evidence. Since the due execution and the loss
of the marriage contract were clearly shown by
the evidence presented, secondary evidence
testimonial and documentary may be
admitted to prove the fact of marriage. In
PUGEDA v. TRIAS, the Supreme Court held
that "marriage may be proven by any
competent and relevant evidence. The
testimony by one of the parties to the marriage
or by one of the witnesses to the marriage has
been held to be admissible to prove the fact of
marriage. The person who officiated at the
solemnization is also competent to testify as
an eyewitness to the fact of marriage."
xxx xxx xxx
The court a quo committed a reversible error
when it disregarded (1) the testimonies of
[Adelina], the sister of EUSTAQUIO who
testified that she personally witnessed the
wedding celebration of her older brother
EUSTAQUIO and [Tecla] on 30 September
1942 at Talibon, Bohol; [Climaco], the eldest
son of EUSTAQUIO and [Tecla], who testified
that his mother [Tecla] was married to his
father, EUSTAQUIO, and [Tecla] herself; and
(2) the documentary evidence mentioned at
the outset. It should be stressed that the due
execution and the loss of the marriage
contract, both constituting the condition sine
qua non for the introduction of secondary
evidence of its contents, were shown by the
very evidence the trial court has disregarded.
31
The starting point then, is the presumption of
marriage.
As early as the case of Adong v. Cheong Seng
Gee, 32 this Court has elucidated on the
rationale behind the presumption: DCcHAa
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 counter-presumption or evidence special
to the 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. A presumption established by our Code
of Civil Procedure is that a man and a woman
deporting themselves as husband and wife
have entered into a lawful contract of
marriage. (Sec. 334, No. 28) Semper
praesumitur pro matrimonio Always
presume marriage.
In the case at bar, the establishment of the
fact of marriage was completed by the
testimonies of Adelina, Climaco and Tecla; the
unrebutted fact of the birth within the
cohabitation of Tecla and Eustaquio of four (4)
children coupled with the certificates of the
children's birth and baptism; and the
certifications of marriage issued by the parish
priest of the Most Holy Trinity Cathedral of
Talibon, Bohol.
WHEREFORE, the Petition is DENIED and the
assailed Decision of the Court of Appeals in
CA-G.R. CV No. 79444 is AFFIRMED. The
marriage between petitioner Peregrina Macua
Avenido and the deceased Eustaquio Avenido
is hereby declared NULL and VOID. No
pronouncement as to costs.
SO ORDERED.
Carpio, Brion, Del Castillo and Perlas-
Bernabe, JJ., concur.
THIRD DIVISION
[G.R. No. 198780. October 16, 2013.]
REPUBLIC OF THE PHILIPPINES,
petitioner, vs. LIBERTY D. ALBIOS,
respondent.
DECISION
MENDOZA, J p:
This is a petition for review on certiorari under
Rule 45 of the Rules of Court assailing the
September 29, 2011 Decision 1 of the Court of
Appeals (CA), in CA-G.R. CV No. 95414, which
affirmed the April 25, 2008 Decision 2 of the
Regional Trial Court, Imus, Cavite (RTC),
declaring the marriage of Daniel Lee Fringer
(Fringer) and respondent Liberty Albios
(Albios) as void from the beginning. DaAISH
The Facts
On October 22, 2004, Fringer, an American
citizen, and Albios were married before Judge
Ofelia I. Calo of the Metropolitan Trial Court,
Branch 59, Mandaluyong City (MeTC), as
evidenced by a Certificate of Marriage with
Register No. 2004-1588. 3
On December 6, 2006, Albios filed with the
RTC a petition for declaration of nullity 4 of
her marriage with Fringer. She alleged that
immediately after their marriage, they
separated and never lived as husband and
wife because they never really had any
intention of entering into a married state or
complying with any of their essential marital
obligations. She described their marriage as
one made in jest and, therefore, null and void
ab initio.
Summons was served on Fringer but he did
not file his answer. On September 13, 2007,
Albios filed a motion to set case for pre-trial
and to admit her pre-trial brief. The RTC
ordered the Assistant Provincial Prosecutor to
conduct an investigation and determine the
existence of a collusion. On October 2, 2007,
the Assistant Prosecutor complied and
reported that she could not make a
determination for failure of both parties to
appear at the scheduled investigation.
At the pre-trial, only Albios, her counsel and
the prosecutor appeared. Fringer did not
attend the hearing despite being duly notified
of the schedule. After the pre-trial, hearing on
the merits ensued.
Ruling of the RTC
In its April 25, 2008 Decision, 5 the RTC
declared the marriage void ab initio, the
dispositive portion of which reads:
WHEREFORE, premises considered, judgment
is hereby rendered declaring the marriage of
Liberty Albios and Daniel Lee Fringer as void
from the very beginning. As a necessary
consequence of this pronouncement,
petitioner shall cease using the surname of
respondent as she never acquired any right
over it and so as to avoid a misimpression that
she remains the wife of respondent. ESDcIA
xxx xxx xxx
SO ORDERED. 6
The RTC was of the view that the parties
married each other for convenience only.
Giving credence to the testimony of Albios, it
stated that she contracted Fringer to enter
into a marriage to enable her to acquire
American citizenship; that in consideration
thereof, she agreed to pay him the sum of
$2,000.00; that after the ceremony, the
parties went their separate ways; that Fringer
returned to the United States and never again
communicated with her; and that, in turn, she
did not pay him the $2,000.00 because he
never processed her petition for citizenship.
The RTC, thus, ruled that when marriage was
entered into for a purpose other than the
establishment of a conjugal and family life,
such was a farce and should not be recognized
from its inception.
Petitioner Republic of the Philippines,
represented by the Office of the Solicitor
General (OSG), filed a motion
reconsideration. The RTC issued the Order, 7
dated February 5, 2009, denying the motion
for want of merit. It explained that the
marriage was declared void because the
parties failed to freely give their consent to the
marriage as they had no intention to be legally
bound by it and used it only as a means to
acquire American citizenship in consideration
of $2,000.00.
Not in conformity, the OSG filed an appeal
before the CA.
Ruling of the CA
In its assailed decision, dated September 29,
2011, the CA affirmed the RTC ruling which
found that the essential requisite of consent
was lacking. The CA stated that the parties
clearly did not understand the nature and
consequence of getting married and that their
case was similar to a marriage in jest. It
further explained that the parties never
intended to enter into the marriage contract
and never intended to live as husband and
wife or build a family. It concluded that their
purpose was primarily for personal gain, that
is, for Albios to obtain foreign citizenship, and
for Fringer, the consideration of $2,000.00.
Hence, this petition. CHIEDS
Assignment of Error
THE COURT OF APPEALS ERRED ON A
QUESTION OF LAW WHEN IT HELD THAT A
MARRIAGE CONTRACTED FOR THE
PURPOSE OF OBTAINING FOREIGN
CITIZENSHIP WAS DONE IN JEST, HENCE,
LACKING IN THE ESSENTIAL ELEMENT OF
CONSENT. 8
The OSG argues that albeit the intention was
for Albios to acquire American citizenship and
for Fringer to be paid $2,000.00, both parties
freely gave their consent to the marriage, as
they knowingly and willingly entered into that
marriage and knew the benefits and
consequences of being bound by it. According
to the OSG, consent should be distinguished
from motive, the latter being inconsequential
to the validity of marriage.
The OSG also argues that the present case
does not fall within the concept of a marriage
in jest. The parties here intentionally
consented to enter into a real and valid
marriage, for if it were otherwise, the purpose
of Albios to acquire American citizenship
would be rendered futile.
for
On October 29, 2012, Albios filed her
Comment 9 to the petition, reiterating her
stand that her marriage was similar to a
marriage by way of jest and, therefore, void
from the beginning.
On March 22, 2013, the OSG filed its Reply 10
reiterating its arguments in its petition for
review on certiorari.
Ruling of the Court
The resolution of this case hinges on this sole
question of law: Is a marriage, contracted for
the sole purpose of acquiring American
citizenship in consideration of $2,000.00, void
ab initio on the ground of lack of consent?
The Court resolves in the negative.
Before the Court delves into its ruling, It shall
first examine the phenomenon of marriage
fraud for the purposes of immigration.
SACTIH
Marriage Fraud in Immigration
The institution of marriage carries with it
concomitant benefits. This has led to the
development of marriage fraud for the sole
purpose of availing of particular benefits. In
the United States, marriages where a couple
marries only to achieve a particular purpose
or acquire specific benefits, have been referred
to as "limited purpose" marriages. 11 A
common limited purpose marriage is one
entered into solely for the legitimization of a
child. 12 Another, which is the subject of the
present case, is for immigration purposes.
Immigration law is usually concerned with the
intention of the couple at the time of their
marriage, 13 and it attempts to filter out those
who use marriage solely to achieve
immigration status. 14
In 1975, the seminal case of Bark v.
Immigration and Naturalization Service, 15
established the principal test for determining
the presence of marriage fraud in immigration
cases. It ruled that a "marriage is a sham if
the bride and groom did not intend to
establish a life together at the time they were
married." This standard was modified with the
passage of the Immigration Marriage Fraud
Amendment of 1986 (IMFA), which now
requires the couple to instead demonstrate
that the marriage was not "entered into for the
purpose of evading the immigration laws of
the United States." The focus, thus, shifted
from determining the intention to establish a
life together, to determining the intention of
evading immigration laws. 16 It must be
noted, however, that this standard is used
purely for immigration purposes and,
therefore, does not purport to rule on the legal
validity or existence of a marriage. DHIETc
The question that then arises is whether a
marriage declared as a sham or fraudulent for
the limited purpose of immigration is also
legally void and inexistent. The early cases on
limited purpose marriages in the United
States made no definitive ruling. In 1946, the
notable case of United States v. Rubenstein 17
was promulgated, wherein in order to allow an
alien to stay in the country, the parties had
agreed to marry but not to live together and to
obtain a divorce within six months. The Court,
through Judge Learned Hand, ruled that a
marriage to convert temporary into permanent
permission to stay in the country was not a
marriage, there being no consent, to wit:
. . . But, that aside, Spitz and Sandler were
never married at all. Mutual consent is
necessary to every contract; and no matter
what forms or ceremonies the parties may go
through indicating the contrary, they do not
contract if they do not in fact assent, which
may always be proved. . . . Marriage is no
exception to this rule: a marriage in jest is not
a marriage at all. . . . It is quite true that a
marriage without subsequent consummation
will be valid; but if the spouses agree to a
marriage only for the sake of representing it as
such to the outside world and with the
understanding that they will put an end to it
as soon as it has served its purpose to deceive,
they have never really agreed to be married at
all. They must assent to enter into the relation
as it is ordinarily understood, and it is not
ordinarily understood as merely a pretence, or
cover, to deceive others. 18
(Italics supplied)
On the other end of the spectrum is the 1969
case of Mpiliris v. Hellenic Lines, 19 which
declared as valid a marriage entered into
solely for the husband to gain entry to the
United States, stating that a valid marriage
could not be avoided "merely because the
marriage was entered into for a limited
purpose." 20 The 1980 immigration case of
Matter of McKee, 21 further recognized that a
fraudulent or sham marriage was intrinsically
different from a nonsubsisting one.
Nullifying these limited purpose marriages for
lack of consent has, therefore, been recognized
as problematic. The problem being that in
order to obtain an immigration benefit, a legal
marriage is first necessary. 22 At present,
United States courts have generally denied
annulments involving "limited purpose"
marriages where a couple married only to
achieve a particular purpose, and have upheld
such marriages as valid. 23 ACIDTE
The Court now turns to the case at hand.
Respondent's marriage not void
In declaring the respondent's marriage void,
the RTC ruled that when a marriage was
entered into for a purpose other than the
establishment of a conjugal and family life,
such was a farce and should not be recognized
from its inception. In its resolution denying
the OSG's motion for reconsideration, the RTC
went on to explain that the marriage was
declared void because the parties failed to
freely give their consent to the marriage as
they had no intention to be legally bound by it
and used it only as a means for the
respondent to acquire American citizenship.
Agreeing with the RTC, the CA ruled that the
essential requisite of consent was lacking. It
held that the parties clearly did not
understand the nature and consequence of
getting married. As in the Rubenstein case,
the CA found the marriage to be similar to a
marriage in jest considering that the parties
only entered into the marriage for the
acquisition of American citizenship in
exchange of $2,000.00. They never intended to
enter into a marriage contract and never
intended to live as husband and wife or build
a family.
The CA's assailed decision was, therefore,
grounded on the parties' supposed lack of
consent. Under Article 2 of the Family Code,
consent is an essential requisite of marriage.
Article 4 of the same Code provides that the
absence of any essential requisite shall render
a marriage void ab initio.
Under said Article 2, for consent to be valid, it
must be (1) freely given and (2) made in the
presence of a solemnizing officer. A "freely
given" consent requires that the contracting
parties willingly and deliberately enter into the
marriage. Consent must be real in the sense
that it is not vitiated nor rendered defective by
any of the vices of consent under Articles 45
and 46 of the Family Code, such as fraud,
force, intimidation, and undue influence. 24
Consent must also be conscious or intelligent,
in that the parties must be capable of
intelligently understanding the nature of, and
both the beneficial or unfavorable
consequences of their act. 25 Their
understanding should not be affected by
insanity, intoxication, drugs, or hypnotism. 26
HaSEcA
Based on the above, consent was not lacking
between Albios and Fringer. In fact, there was
real consent because it was not vitiated nor
rendered defective by any vice of consent.
Their consent was also conscious and
intelligent as they understood the nature and
the beneficial and inconvenient consequences
of their marriage, as nothing impaired their
ability to do so. That their consent was freely
given is best evidenced by their conscious
purpose of acquiring American citizenship
through marriage. Such plainly demonstrates
that they willingly and deliberately contracted
the marriage. There was a clear intention to
enter into a real and valid marriage so as to
fully comply with the requirements of an
application for citizenship. There was a full
and complete understanding of the legal tie
that would be created between them, since it
was that precise legal tie which was necessary
to accomplish their goal.
In ruling that Albios' marriage was void for
lack of consent, the CA characterized such as
akin to a marriage by way of jest. A marriage
in jest is a pretended marriage, legal in form
but entered into as a joke, with no real
intention of entering into the actual marriage
status, and with a clear understanding that
the parties would not be bound. The ceremony
is not followed by any conduct indicating a
purpose to enter into such a relation. 27 It is a
pretended marriage not intended to be real
and with no intention to create any legal ties
whatsoever, hence, the absence of any
genuine consent. Marriages in jest are void ab
initio, not for vitiated, defective, or
unintelligent consent, but for a complete
absence of consent. There is no genuine
consent because the parties have absolutely
no intention of being bound in any way or for
any purpose.
The respondent's marriage is not at all
analogous to a marriage in jest. Albios and
Fringer had an undeniable intention to be
bound in order to create the very bond
necessary to allow the respondent to acquire
American citizenship. Only a genuine consent
to be married would allow them to further
their objective, considering that only a valid
marriage can properly support an application
for citizenship. There was, thus, an apparent
intention to enter into the actual marriage
status and to create a legal tie, albeit for a
limited purpose. Genuine consent was,
therefore, clearly present. cEaSHC
The avowed purpose of marriage under Article
1 of the Family Code is for the couple to
establish a conjugal and family life. The
possibility that the parties in a marriage might
have no real intention to establish a life
together is, however, insufficient to nullify a
marriage freely entered into in accordance
with law. The same Article 1 provides that the
nature, consequences, and incidents of
marriage are governed by law and not subject
to stipulation. A marriage may, thus, only be
declared void or voidable under the grounds
provided by law. There is no law that declares
a marriage void if it is entered into for
purposes other than what the Constitution or
law declares, such as the acquisition of foreign
citizenship. Therefore, so long as all the
essential and formal requisites prescribed by
law are present, and it is not void or voidable
under the grounds provided by law, it shall be
declared valid. 28
Motives for entering into a marriage are varied
and complex. The State does not and cannot
dictate on the kind of life that a couple
chooses to lead. Any attempt to regulate their
lifestyle would go into the realm of their right
to privacy and would raise serious
constitutional questions. 29 The right to
marital privacy allows married couples to
structure their marriages in almost any way
they see fit, to live together or live apart, to
have children or no children, to love one
another or not, and so on. 30 Thus, marriages
entered into for other purposes, limited or
otherwise, such as convenience,
companionship, money, status, and title,
provided that they comply with all the legal
requisites, 31 are equally valid. Love, though
the ideal consideration in a marriage contract,
is not the only valid cause for marriage. Other
considerations, not precluded by law, may
validly support a marriage.
Although the Court views with disdain the
respondent's attempt to utilize marriage for
dishonest purposes, It cannot declare the
marriage void. Hence, though the respondent's
marriage may be considered a sham or
fraudulent for the purposes of immigration, it
is not void ab initio and continues to be valid
and subsisting.
Neither can their marriage be considered
voidable on the ground of fraud under Article
45 (3) of the Family Code. Only the
circumstances listed under Article 46 of the
same Code may constitute fraud, namely, (1)
non-disclosure of a previous conviction
involving moral turpitude; (2) concealment by
the wife of a pregnancy by another man; (3)
concealment of a sexually transmitted disease;
and (4) concealment of drug addiction,
alcoholism, or homosexuality. No other
misrepresentation or deceit shall constitute
fraud as a ground for an action to annul a
marriage. Entering into a marriage for the sole
purpose of evading immigration laws does not
qualify under any of the listed circumstances.
Furthermore, under Article 47 (3), the ground
of fraud may only be brought by the injured or
innocent party. In the present case, there is
no injured party because Albios and Fringer
both conspired to enter into the sham
marriage. IaCHTS
Albios has indeed made a mockery of the
sacred institution of marriage. Allowing her
marriage with Fringer to be declared void
would only further trivialize this inviolable
institution. The Court cannot declare such a
marriage void in the event the parties fail to
qualify for immigration benefits, after they
have availed of its benefits, or simply have no
further use for it. These unscrupulous
individuals cannot be allowed to use the
courts as instruments in their fraudulent
schemes. Albios already misused a judicial
institution to enter into a marriage of
convenience; she should not be allowed to
again abuse it to get herself out of an
inconvenient situation.
No less than our Constitution declares that
marriage, as an inviolable social institution, is
the foundation of the family and shall be
protected by the State. 32 It must, therefore,
be safeguarded from the whims and caprices
of the contracting parties. This Court cannot
leave the impression that marriage may easily
be entered into when it suits the needs of the
parties, and just as easily nullified when no
longer needed.
WHEREFORE, the petition is GRANTED. The
September 29, 2011 Decision of the Court of
Appeals in CA-G.R. CV No. 95414 is
ANNULLED, and Civil Case No. 1134-06 is
DISMISSED for utter lack of merit. SCIcTD
SO ORDERED.
Velasco, Jr., Leonardo-de Castro, * Brion **
and Peralta, JJ., concur.
SECOND DIVISION
[G.R. No. 182438. July 2, 2014.]
RENE RONULO, petitioner, vs. PEOPLE OF
THE PHILIPPINES, respondent.
DECISION
BRION, J p:
Before the Court is a petition for review on
certiorari 1 filed by petitioner Fr. Rene Ronulo
challenging the April 3, 2008 decision 2 of the
Court of Appeals (CA) in CA-G.R. CR. No.
31028 which affirmed the decision of the
Regional Trial Court, (RTC) Branch 18, Batac,
Ilocos Norte. CacTIE
The Factual Antecedents
The presented evidence showed that 3 Joey
Umadac and Claire Bingayen were scheduled
to marry each other on March 29, 2003 at the
Sta. Rosa Catholic Parish Church of San
Nicolas, Ilocos Norte. However, on the day of
the wedding, the supposed officiating priest,
Fr. Mario Ragaza, refused to solemnize the
marriage upon learning that the couple failed
to secure a marriage license. As a recourse,
Joey, who was then dressed in barong
tagalong, and Claire, clad in a wedding gown,
together with their parents, sponsors and
guests, proceeded to the Independent Church
of Filipino Christians, also known as the
Aglipayan Church. They requested the
petitioner, an Aglipayan priest, to perform a
ceremony to which the latter agreed despite
having been informed by the couple that they
had no marriage certificate.
The petitioner prepared his choir and
scheduled a mass for the couple on the same
date. He conducted the ceremony in the
presence of the groom, the bride, their
parents, the principal and secondary sponsors
and the rest of their invited guests. 4
An information for violation of Article 352 of
the Revised Penal Code (RPC), as amended,
was filed against the petitioner before the
Municipal Trial Court (MTC) of Batac, Ilocos
Norte for allegedly performing an illegal
marriage ceremony. 5
The petitioner entered the plea of "not guilty"
to the crime charged on arraignment.
The prosecution's witnesses, Joseph and Mary
Anne Yere, testified on the incidents of the
ceremony. Joseph was the veil sponsor while
Mary Anne was the cord sponsor in the
wedding. Mary Anne testified that she saw the
bride walk down the aisle. She also saw the
couple exchange their wedding rings, kiss
each other, and sign a document. 6 She heard
the petitioner instructing the principal
sponsors to sign the marriage contract.
Thereafter, they went to the reception, had
lunch and took pictures. She saw the
petitioner there. She also identified the
wedding invitation given to her by Joey. 7
STHDAc
Florida Umadac, the mother of Joey, testified
that she heard the couple declare during the
ceremony that they take each other as
husband and wife. 8 Days after the wedding,
she went to the municipal local civil registrar
of San Nicolas, Ilocos Norte with Atty. Mariano
R. Nalupta Jr. where she was given a
certificate that no marriage license was issued
to the couple. 9
The petitioner, while admitting that he
conducted a ceremony, denied that his act of
blessing the couple was tantamount to a
solemnization of the marriage as contemplated
by law. 10
The MTC Judgment
The MTC found the petitioner guilty of
violation of Article 352 of the RPC, as
amended, and imposed on him a P200.00 fine
pursuant to Section 44 of Act No. 3613. It
held that the petitioner's act of giving a
blessing constitutes a marriage ceremony as
he made an official church recognition of the
cohabitation of the couple as husband and
wife. 11 It further ruled that in performing a
marriage ceremony without the couple's
marriage license, the petitioner violated Article
352 of the RPC which imposes the penalty
provided under Act No. 3613 or the Marriage
Law. The MTC applied Section 44 of the
Marriage Law which pertinently states that a
violation of any of its provisions that is not
specifically penalized or of the regulations to
be promulgated, shall be punished by a fine of
not more than two hundred pesos or by
imprisonment of not more than one month, or
both, in the discretion of the court.
The RPC is a law subsequent to the Marriage
Law, and provides the penalty for violation of
the latter law. Applying these laws, the MTC
imposed the penalty of a fine in the amount of
P200.00. 12 DISHEA
The RTC Ruling
The RTC affirmed the findings of the MTC and
added that the circumstances surrounding the
act of the petitioner in "blessing" the couple
unmistakably show that a marriage ceremony
had transpired. It further ruled that the
positive declarations of the prosecution
witnesses deserve more credence than the
petitioner's negative statements. 13 The RTC,
however, ruled that the basis of the fine
should be Section 39, instead of Section 44, of
the Marriage Law.
The CA Decision
On appeal, the CA affirmed the RTC's ruling.
The CA observed that although there is no
prescribed form or religious rite for the
solemnization of marriage, the law provides
minimum standards in determining whether a
marriage ceremony has been conducted, viz.:
(1) the contracting parties must appear
personally before the solemnizing officer; and
(2) they should declare that they take each
other as husband and wife in the presence of
at least two witnesses of legal age. 14
According to the CA, the prosecution duly
proved these requirements. It added that the
presence of a marriage certificate is not a
requirement in a marriage ceremony. 15
The CA additionally ruled that the petitioner's
criminal liability under Article 352 of the RPC,
as amended, is not dependent on whether
Joey or Claire were charged or found guilty
under Article 350 of the same Code. 16
The CA agreed with the MTC that the legal
basis for the imposition of the fine is Section
44 of the Marriage Law since it covers
violation of regulations to be promulgated by
the proper authorities such as the RPC.
The Petition
The petitioner argues that the CA erred on the
following grounds: SDHITE
First, Article 352 of the RPC, as amended, is
vague and does not define what constitutes
"an illegal marriage ceremony." Assuming that
a marriage ceremony principally constitutes
those enunciated in Article 55 of the Civil
Code and Article 6 of the Family Code, these
provisions require the verbal declaration that
the couple take each other as husband and
wife, and a marriage certificate containing the
declaration in writing which is duly signed by
the contracting parties and attested to by the
solemnizing officer. 17 The petitioner likewise
maintains that the prosecution failed to prove
that the contracting parties personally
declared that they take each other as husband
and wife. 18
Second, under the principle of separation of
church and State, the State cannot interfere
in ecclesiastical affairs such as the
administration of matrimony. Therefore, the
State cannot convert the "blessing" into a
"marriage ceremony." 19
Third, the petitioner had no criminal intent as
he conducted the "blessing" in good faith for
purposes of giving moral guidance to the
couple. 20
Fourth, the non-filing of a criminal case
against the couple in violating Article 350 of
the RPC, as amended, should preclude the
filing of the present case against him. 21
Finally, Article 352 of the RPC, as amended,
does not provide for a penalty. The present
case is not covered by Section 44 of the
Marriage Law as the petitioner was not found
violating its provisions nor a regulation
promulgated thereafter. 22
THE COURT'S RULING:
We find the petition unmeritorious.
The elements of the crime
punishable under Article 352 of the
RPC, as amended, were proven by
the prosecution
Article 352 of the RPC, as amended, penalizes
an authorized solemnizing officer who shall
perform or authorize any illegal marriage
ceremony. The elements of this crime are as
follows: (1) authority of the solemnizing officer;
and (2) his performance of an illegal marriage
ceremony.
In the present case, the petitioner admitted
that he has authority to solemnize a marriage.
Hence, the only issue to be resolved is
whether the alleged "blessing" by the
petitioner is tantamount to the performance of
an "illegal marriage ceremony" which is
punishable under Article 352 of the RPC, as
amended. ITcCSA
While Article 352 of the RPC, as amended,
does not specifically define a "marriage
ceremony" and what constitutes its "illegal"
performance, Articles 3 (3) and 6 of the Family
Code are clear on these matters. These
provisions were taken from Article 55 23 of the
New Civil Code which, in turn, was copied
from Section 3 24 of the Marriage Law with no
substantial amendments.
Article 6 25 of the Family Code provides that
"[n]o prescribed form or religious rite for the
solemnization of the marriage is required. It
shall be necessary, however, for the
contracting parties to appear personally before
the solemnizing officer and declare in the
presence of not less than two witnesses of
legal age that they take each other as
husband and wife." 26
Pertinently, Article 3 (3) 27 mirrors Article 6 of
the Family Code and particularly defines a
marriage ceremony as that which takes place
with the appearance of the contracting parties
before the solemnizing officer and their
personal declaration that they take each other
as husband and wife in the presence of not
less than two witnesses of legal age.
Even prior to the date of the enactment of
Article 352 of the RPC, as amended, the rule
was clear that no prescribed form of religious
rite for the solemnization of the marriage is
required. However, as correctly found by the
CA, the law sets the minimum requirements
constituting a marriage ceremony: first, there
should be the personal appearance of the
contracting parties before a solemnizing
officer; and second, their declaration in the
presence of not less than two witnesses that
they take each other as husband and wife.
As to the first requirement, the petitioner
admitted that the parties appeared before him
and this fact was testified to by witnesses. On
the second requirement, we find that, contrary
to the petitioner's allegation, the prosecution
has proven, through the testimony of Florida,
that the contracting parties personally
declared that they take each other as husband
and wife. cDSAEI
The petitioner's allegation that the court asked
insinuating and leading questions to Florida
fails to persuade us. A judge may examine or
cross-examine a witness. He may propound
clarificatory questions to test the credibility of
the witness and to extract the truth. He may
seek to draw out relevant and material
testimony though that testimony may tend to
support or rebut the position taken by one or
the other party. It cannot be taken against
him if the clarificatory questions he
propounds happen to reveal certain truths
that tend to destroy the theory of one party.
28
At any rate, if the defense found the line of
questioning of the judge objectionable, its
failure to timely register this bars it from
belatedly invoking any irregularity.
In addition, the testimonies of Joseph and
Mary Anne, and even the petitioner's
admission regarding the circumstances of the
ceremony, support Florida's testimony that
there had indeed been the declaration by the
couple that they take each other as husband
and wife. The testimony of Joey disowning
their declaration as husband and wife cannot
overcome these clear and convincing pieces of
evidence. Notably, the defense failed to show
that the prosecution witnesses, Joseph and
Mary Anne, had any ill-motive to testify
against the petitioner.
We also do not agree with the petitioner that
the principle of separation of church and State
precludes the State from qualifying the church
"blessing" into a marriage ceremony. Contrary
to the petitioner's allegation, this principle has
been duly preserved by Article 6 of the Family
Code when it provides that no prescribed form
or religious rite for the solemnization of
marriage is required. This pronouncement
gives any religion or sect the freedom or
latitude in conducting its respective marital
rites, subject only to the requirement that the
core requirements of law be observed.
CTSHDI
We emphasize at this point that Article 15 29
of the Constitution recognizes marriage as an
inviolable social institution and that our
family law is based on the policy that marriage
is not a mere contract, but a social institution
in which the State is vitally interested. The
State has paramount interest in the
enforcement of its constitutional policies and
the preservation of the sanctity of marriage. To
this end, it is within its power to enact laws
and regulations, such as Article 352 of the
RPC, as amended, which penalize the
commission of acts resulting in the
disintegration and mockery of marriage.
From these perspectives, we find it clear that
what the petitioner conducted was a marriage
ceremony, as the minimum requirements set
by law were complied with. While the
petitioner may view this merely as a
"blessing," the presence of the requirements of
the law constitutive of a marriage ceremony
qualified this "blessing" into a "marriage
ceremony" as contemplated by Article 3 (3) of
the Family Code and Article 352 of the RPC,
as amended.
We come now to the issue of whether the
solemnization by the petitioner of this
marriage ceremony was illegal.
Under Article 3 (3) of the Family Code, one of
the essential requisites of marriage is the
presence of a valid marriage certificate. In the
present case, the petitioner admitted that he
knew that the couple had no marriage license,
yet he conducted the "blessing" of their
relationship.
Undoubtedly, the petitioner conducted the
marriage ceremony despite knowledge that the
essential and formal requirements of marriage
set by law were lacking. The marriage
ceremony, therefore, was illegal. The
petitioner's knowledge of the absence of these
requirements negates his defense of good
faith.
We also do not agree with the petitioner that
the lack of a marriage certificate negates his
criminal liability in the present case. For
purposes of determining if a marriage
ceremony has been conducted, a marriage
certificate is not included in the requirements
provided by Article 3 (3) of the Family Code, as
discussed above. DaAISH
Neither does the non-filing of a criminal
complaint against the couple negate criminal
liability of the petitioner. Article 352 of the
RPC, as amended, does not make this an
element of the crime.
The penalty imposed is proper
On the issue on the penalty for violation of
Article 352 of the RPC, as amended, this
provision clearly provides that it shall be
imposed in accordance with the provision of
the Marriage Law. The penalty provisions of
the Marriage Law are Sections 39 and 44
which provide as follows:
Section 39 of the Marriage Law provides that:
Section 39. Illegal Solemnization of Marriage.
Any priest or minister solemnizing marriage
without being authorized by the Director of
the Philippine National Library or who, upon
solemnizing marriage, refuses to exhibit the
authorization in force when called upon to do
so by the parties or parents, grandparents,
guardians, or persons having charge and any
bishop or officer, priest, or minister of any
church, religion or sect the regulations and
practices whereof require banns or
publications previous to the solemnization of a
marriage in accordance with section ten, who
authorized the immediate solemnization of a
marriage that is subsequently declared illegal;
or any officer, priest or minister solemnizing
marriage in violation of this act, shall be
punished by imprisonment for not less than
one month nor more than two years, or by a
fine of not less than two hundred pesos nor
more than two thousand pesos. [emphasis
ours]
On the other hand, Section 44 of the Marriage
Law states that:
Section 44. General Penal Clause. Any
violation of any provision of this Act not
specifically penalized, or of the regulations to
be promulgated by the proper authorities,
shall be punished by a fine of not more than
two hundred pesos or by imprisonment for not
more than one month, or both, in the
discretion of the court. [emphasis ours]
CDAcIT
From a reading of the provisions cited above,
we find merit in the ruling of the CA and the
MTC that the penalty imposable in the present
case is that covered under Section 44, and not
Section 39, of the Marriage Law.
The penalized acts under Section 39 of Act No.
3613 do not include the present case. As
correctly found by the MTC, the petitioner was
not found violating the provisions of the
Marriage Law but Article 352 of the RPC, as
amended. It is only the imposition of the
penalty for the violation of this provision
which is referred to the Marriage Law. On this
point, Article 352 falls squarely under the
provision of Section 44 of Act No. 3613 which
provides for the penalty for any violation of the
regulations to be promulgated by the proper
authorities; Article 352 of the RPC, as
amended, which was enacted after the
Marriage Law, is one of such regulations.
Therefore, the CA did not err in imposing the
penalty of fine of P200.00 pursuant to Section
44 of the Marriage Law.
WHEREFORE, we DENY the petition and
affirm the decision of the Court of Appeals
dated April 3, 2008 in CA-G.R. CR. No. 31028.
SO ORDERED.
Carpio, Del Castillo, Perez and Perlas-Bernabe, JJ., concur.
THIRD DIVISION
[G.R. No. 183896. January 30, 2013.]
SYED AZHAR ABBAS, petitioner, vs.
GLORIA GOO ABBAS, respondent.
DECISION
VELASCO, JR., J p:
This is a Petition for Review on Certiorari
under Rule 45 of the 1997 Rules of Civil
Procedure, questioning the Decision 1 of the
Court of Appeals (CA) dated March 11, 2008
in CA-G.R. CV No. 86760, which reversed the
Decision 2 in Civil Case No. 03-0382-CFM
dated October 5, 2005 of the Regional Trial
Court (RTC), Branch 109, Pasay City, and the
CA Resolution dated July 24, 2008, denying
petitioner's Motion for Reconsideration of the
CA Decision. aSIDCT
The present case stems from a petition filed by
petitioner Syed Azhar Abbas (Syed) for the
declaration of nullity of his marriage to Gloria
Goo-Abbas (Gloria) with the RTC of Pasay
City, docketed as Civil Case No. 03-0382-
CFM, and raffled to RTC Branch 109. Syed
alleged the absence of a marriage license, as
provided for in Article 4, Chapter I, Title 1 of
Executive Order No. 269, * otherwise known
as the Family Code of the Philippines, as a
ground for the annulment of his marriage to
Gloria.
In the Marriage Contract 3 of Gloria and Syed,
it is stated that Marriage License No.
9969967, issued at Carmona, Cavite on
January 8, 1993, was presented to the
solemnizing officer. It is this information that
is crucial to the resolution of this case.
At the trial court, Syed, a Pakistani citizen,
testified that he met Gloria, a Filipino citizen,
in Taiwan in 1991, and they were married on
August 9, 1992 at the Taipei Mosque in
Taiwan. 4 He arrived in the Philippines in
December of 1992. On January 9, 1993, at
around 5 o'clock in the afternoon, he was at
his mother-in-law's residence, located at 2676
F. Muoz St., Malate, Manila, when his
mother-in-law arrived with two men. He
testified that he was told that he was going to
undergo some ceremony, one of the
requirements for his stay in the Philippines,
but was not told of the nature of said
ceremony. During the ceremony he and Gloria
signed a document. He claimed that he did
not know that the ceremony was a marriage
until Gloria told him later. He further testified
that he did not go to Carmona, Cavite to apply
for a marriage license, and that he had never
resided in that area. In July of 2003, he went
to the Office of the Civil Registrar of Carmona,
Cavite, to check on their marriage license, and
was asked to show a copy of their marriage
contract wherein the marriage license number
could be found. 5 The Municipal Civil
Registrar, Leodivinia C. Encarnacion, issued a
certification on July 11, 2003 to the effect that
the marriage license number appearing in the
marriage contract he submitted, Marriage
License No. 9969967, was the number of
another marriage license issued to a certain
Arlindo Getalado and Myra Mabilangan. 6
Said certification reads as follows: DcSACE
11 July 2003
TO WHOM IT MAY CONCERN:
This is to certify as per Registry Records of
Marriage License filed in this office, Marriage
License No. 9969967 was issued in favor of
MR. ARLINDO GETALADO and MISS MYRA
MABILANGAN on January 19, 1993.
No Marriage License appear [sic] to have been
issued to MR. SYED AZHAR ABBAS and MISS
GLORIA F. GOO on January 8, 1993.
This certification is being issued to Mr. Syed
Azhar Abbas for whatever legal purpose or
intents it may serve. 7
On cross-examination, Syed testified that
Gloria had filed bigamy cases against him in
2001 and 2002, and that he had gone to the
Municipal Civil Registrar of Carmona, Cavite
to get certification on whether or not there was
a marriage license on advice of his counsel. 8
Petitioner also presented Norberto Bagsic
(Bagsic), an employee of the Municipal Civil
Registrar of Carmona, Cavite. Bagsic appeared
under a letter of authority from the Municipal
Civil Registrar of Carmona, Cavite, and
brought documents pertaining to Marriage
License No. 9969967, which was issued to
Arlindo Getalado and Myra Mabilangan on
January 20, 1993. 9 Bagsic testified that their
office issues serial numbers for marriage
licenses and that the numbers are issued
chronologically. 10 He testified that the
certification dated July 11, 2003, was issued
and signed by Leodivina Encarnacion,
Registrar of the Municipality of Carmona,
Cavite, certifying that Marriage License No.
9969967 was issued for Arlindo Getalado and
Myra Mabilangan on January 19, 1993, and
that their office had not issued any other
license of the same serial number, namely
9969967, to any other person. 11
For her part, Gloria testified on her own
behalf, and presented Reverend Mario Dauz,
Atty. Lorenzo Sanchez, Felicitas Goo and May
Ann Ceriola. ETISAc
Reverend Mario Dauz (Rev. Dauz) testified that
he was a minister of the Gospel and a
barangay captain, and that he is authorized to
solemnize marriages within the Philippines. 12
He testified that he solemnized the marriage of
Syed Azhar Abbas and Gloria Goo at the
residence of the bride on January 9, 1993. 13
He stated that the witnesses were Atty.
Lorenzo Sanchez (Atty. Sanchez) and Mary
Ann Ceriola. 14 He testified that he had been
solemnizing marriages since 1982, and that
he is familiar with the requirements. 15 Rev.
Dauz further testified that Atty. Sanchez gave
him the marriage license the day before the
actual wedding, and that the marriage
contract was prepared by his secretary. 16
After the solemnization of the marriage, it was
registered with the Local Civil Registrar of
Manila, and Rev. Dauz submitted the
marriage contract and copy of the marriage
license with that office. 17
Atty. Sanchez testified that he was asked to be
the sponsor of the wedding of Syed Abbas and
Gloria Goo by the mother of the bride,
Felicitas Goo. 18 He testified that he
requested a certain Qualin to secure the
marriage license for the couple, and that this
Qualin secured the license and gave the same
to him on January 8, 1993. 19 He further
testified that he did not know where the
marriage license was obtained. 20 He attended
the wedding ceremony on January 9, 1993,
signed the marriage contract as sponsor, and
witnessed the signing of the marriage contract
by the couple, the solemnizing officer and the
other witness, Mary Ann Ceriola. 21
Felicitas Goo testified that Gloria Goo is her
daughter and Syed Azhar Abbas is her son-in-
law, and that she was present at the wedding
ceremony held on January 9, 1993 at her
house. 22 She testified that she sought the
help of Atty. Sanchez at the Manila City Hall
in securing the marriage license, and that a
week before the marriage was to take place, a
male person went to their house with the
application for marriage license. 23 Three
days later, the same person went back to their
house, showed her the marriage license before
returning it to Atty. Sanchez who then gave it
to Rev. Dauz, the solemnizing officer. 24 She
further testified that she did not read all of the
contents of the marriage license, and that she
was told that the marriage license was
obtained from Carmona. 25 She also testified
that a bigamy case had been filed by Gloria
against Syed at the Regional Trial Court of
Manila, evidenced by an information for
Bigamy dated January 10, 2003, pending
before Branch 47 of the Regional Trial Court
of Manila. 26
As to Mary Ann Ceriola's testimony, the
counsels for both parties stipulated that: (a)
she is one of the sponsors at the wedding of
Gloria Goo and Syed Abbas on January 9,
1993; (b) she was seen in the wedding photos
and she could identify all the persons depicted
in said photos; and (c) her testimony
corroborates that of Felicitas Goo and Atty.
Sanchez. cTCaEA
The respondent, Gloria, testified that Syed is
her husband, and presented the marriage
contract bearing their signatures as proof. 27
She and her mother sought the help of Atty.
Sanchez in securing a marriage license, and
asked him to be one of the sponsors. A certain
Qualin went to their house and said that he
will get the marriage license for them, and
after several days returned with an application
for marriage license for them to sign, which
she and Syed did. After Qualin returned with
the marriage license, they gave the license to
Atty. Sanchez who gave it to Rev. Dauz, the
solemnizing officer. Gloria testified that she
and Syed were married on January 9, 1993 at
their residence. 28
Gloria further testified that she has a
daughter with Syed, born on June 15, 1993.
29
Gloria also testified that she filed a bigamy
case against Syed, who had married a certain
Maria Corazon Buenaventura during the
existence of the previous marriage, and that
the case was docketed as Criminal Case No.
02A-03408, with the RTC of Manila. 30
Gloria stated that she and Syed had already
been married on August 9, 1992 in Taiwan,
but that she did not know if said marriage had
been celebrated under Muslim rites, because
the one who celebrated their marriage was
Chinese, and those around them at the time
were Chinese. 31
The Ruling of the RTC
In its October 5, 2005 Decision, the Pasay City
RTC held that no valid marriage license was
issued by the Municipal Civil Registrar of
Carmona, Cavite in favor of Gloria and Syed,
as Marriage License No. 9969967 had been
issued to Arlindo Getalado and Myra
Mabilangan, and the Municipal Civil Registrar
of Carmona, Cavite had certified that no
marriage license had been issued for Gloria
and Syed. 32 It also took into account the fact
that neither party was a resident of Carmona,
Cavite, the place where Marriage License No.
9969967 was issued, in violation of Article 9 of
the Family Code. 33 As the marriage was not
one of those exempt from the license
requirement, and that the lack of a valid
marriage license is an absence of a formal
requisite, the marriage of Gloria and Syed on
January 9, 1993 was void ab initio. cCESaH
The dispositive portion of the Decision reads
as follows:
WHEREFORE, judgment is hereby rendered in
favor of the petitioner, and against the
respondent declaring as follows:
1. The marriage on January 9, 1993
between petitioner Syed Azhar Abbas and
respondent Gloria Goo-Abbas is hereby
annulled;
2. Terminating the community of property
relations between the petitioner and the
respondent even if no property was acquired
during their cohabitation by reason of the
nullity of the marriage of the parties.
3. The Local Civil Registrar of Manila and
the Civil Registrar General, National Statistics
Office, are hereby ordered to cancel from their
respective civil registries the marriage
contracted by petitioner Syed Azhar Abbas
and respondent Gloria Goo-Abbas on January
9, 1993 in Manila.
SO ORDERED. 34
Gloria filed a Motion for Reconsideration dated
November 7, 2005, but the RTC denied the
same, prompting her to appeal the questioned
decision to the Court of Appeals.
The Ruling of the CA
In her appeal to the CA, Gloria submitted the
following assignment of errors: aEcDTC
I Petition for Declaration of Nullity of Marriage
THE LOWER COURT ERRED IN DECLARING
THE MARRIAGE BETWEEN THE PETITIONER
AND RESPONDENT AS NULL AND VOID DUE
TO THE ABSENCE OF A MARRIAGE LICENSE
DESPITE EVIDENCE CLEARLY SHOWING
THAT THERE WAS ONE.
II
THE LOWER COURT ERRED IN NOT
CONSIDERING, AS A REQUISITE OF A VALID
MARRIAGE, THE OVERWHELMING
EVIDENCE SHOWING THAT A MARRIAGE
CEREMONY TOOK PLACE WITH THE
APPEARANCE OF THE CONTRACTING
PARTIES BEFORE THE SOLEMNIZING
OFFICER AND THEIR PERSONAL
DECLARATION THAT THEY TOOK EACH
OTHER AS HUSBAND AND WIFE IN THE
PRESENCE OF NOT LESS THAN TWO
WITNESSES OF LEGAL AGE.
III
THE LOWER COURT ERRED IN NOT RULING
ON THE ISSUE OF ESTOPPEL BY LACHES
ON THE PART OF THE PETITIONER, AN
ISSUE TIMELY RAISED IN THE COURT
BELOW. 35
The CA gave credence to Gloria's arguments,
and granted her appeal. It held that the
certification of the Municipal Civil Registrar
failed to categorically state that a diligent
search for the marriage license of Gloria and
Syed was conducted, and thus held that said
certification could not be accorded probative
value. 36 The CA ruled that there was
sufficient testimonial and documentary
evidence that Gloria and Syed had been
validly married and that there was compliance
with all the requisites laid down by law. 37 It
gave weight to the fact that Syed had admitted
to having signed the marriage contract. The
CA also considered that the parties had
comported themselves as husband and wife,
and that Syed only instituted his petition after
Gloria had filed a case against him for bigamy.
38
The dispositive portion of the CA Decision
reads as follows: aDSHCc
WHEREFORE, premises considered, the
appeal is GRANTED. The Decision dated 05
October 2005 and Order dated 27 January
2006 of the Regional Trial Court of Pasay City,
Branch 109, in Civil Case No. 03-0382-CFM
are REVERSED and SET ASIDE and the
is DISMISSED. The marriage between Shed
[sic] Azhar Abbas and Gloria Goo Abbas
contracted on 09 January 1993 remains valid
and subsisting. No costs.
SO ORDERED. 39
Syed then filed a Motion for Reconsideration
dated April 1, 2008 40 but the same was
denied by the CA in a Resolution dated July
24, 2008. 41
Hence, this petition.
Grounds in Support of Petition
I void from the beginning: ScCEIA
THE HONORABLE COURT OF APPEALS
COMMITTED SERIOUS ERROR OF LAW IN
CITING REPUBLIC VS. COURT OF APPEALS
AS THE SAME IS DIAMETRICALLY
INCONSISTENT AND CONTRARY TO THE
COURT'S OWN FINDINGS AND
CONCLUSIONS IN THIS CASE.
II
THE HONORABLE COURT OF APPEALS
GRAVELY ERRED IN REVERSING AND
SETTING ASIDE, WITHOUT ANY FACTUAL
AND LEGAL BASIS, THE DECISION OF THE
REGIONAL TRIAL COURT GRANTING THE
PETITION FOR DECLARATION OF NULLITY
OF MARRIAGE. 42
The Ruling of this Court
The petition is meritorious. EHCaDS
As the marriage of Gloria and Syed was
solemnized on January 9, 1993, Executive
Order No. 209, or the Family Code of the
Philippines, is the applicable law. The
pertinent provisions that would apply to this
particular case are Articles 3, 4 and 35 (3),
which read as follows:
Art. 3. The formal requisites of marriage are:
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the
cases provided for in Chapter 2 of this Title;
and
(3) A marriage ceremony which takes place
with the appearance of the contracting parties
before the solemnizing officer and their
personal declaration that they take each other
as husband and wife in the presence of not
less than two witnesses of legal age.
Art. 4. The absence of any of the essential or
formal requisites shall render the marriage
void ab initio, except as stated in Article 35(2).
A defect in any of the essential requisites shall
render the marriage voidable as provided in
Article 45.
An irregularity in the formal requisites shall
not affect the validity of the marriage but the
party or parties responsible for the irregularity
shall be civilly, criminally and administratively
liable.
Art. 35. The following marriages shall be
xxx xxx xxx
(3) Those solemnized without a license,
except those covered by the preceding
Chapter.
There is no issue with the essential requisites
under Art. 2 of the Family Code, nor with the
formal requisites of the authority of the
solemnizing officer and the conduct of the
marriage ceremony. Nor is the marriage one
that is exempt from the requirement of a valid
marriage license under Chapter 2, Title I of
the Family Code. The resolution of this case,
thus, hinges on whether or not a valid
marriage license had been issued for the
couple. The RTC held that no valid marriage
license had been issued. The CA held that
there was a valid marriage license.
We find the RTC to be correct in this instance.
Respondent Gloria failed to present the actual
marriage license, or a copy thereof, and relied
on the marriage contract as well as the
testimonies of her witnesses to prove the
existence of said license. To prove that no
such license was issued, Syed turned to the
office of the Municipal Civil Registrar of
Carmona, Cavite which had allegedly issued
said license. It was there that he requested
certification that no such license was issued.
In the case of Republic v. Court of Appeals 43
such certification was allowed, as permitted
by Sec. 29, * Rule 132 of the Rules of Court,
which reads:
SEC. 28. Proof of lack of record. A
written statement signed by an officer having
the custody of an official record or by his
deputy that after diligent search, no record or
entry of a specified tenor is found to exist in
the records of his office, accompanied by a
certificate as above provided, is admissible as
evidence that the records of his office contain
no such record or entry.
In the case of Republic, in allowing the
certification of the Civil Registrar of Pasig to
prove the non-issuance of a marriage license,
the Court held: SDAcaT
The above Rule authorized the custodian of
the documents to certify that despite diligent
search, a particular document does not exist
in his office or that a particular entry of a
specified tenor was not to be found in a
register. As custodians of public documents,
civil registrars are public officers charged with
the duty, inter alia, of maintaining a register
book where they are required to enter all
applications for marriage licenses, including
the names of the applicants, the date the
marriage license was issued and such other
relevant data. 44
The Court held in that case that the
certification issued by the civil registrar
enjoyed probative value, as his duty was to
maintain records of data relative to the
issuance of a marriage license.
The Municipal Civil Registrar of Carmona,
Cavite, where the marriage license of Gloria
and Syed was allegedly issued, issued a
certification to the effect that no such
marriage license for Gloria and Syed was
issued, and that the serial number of the
marriage license pertained to another couple,
Arlindo Getalado and Myra Mabilangan. A
certified machine copy of Marriage License No.
9969967 was presented, which was issued in
Carmona, Cavite, and indeed, the names of
Gloria and Syed do not appear in the
document.
In reversing the RTC, the CA focused on the
wording of the certification, stating that it did
not comply with Section 28, Rule 132 of the
Rules of Court.
The CA deduced that from the absence of the
words "despite diligent search" in the
certification, and since the certification used
stated that no marriage license appears to
have been issued, no diligent search had been
conducted and thus the certification could not
be given probative value.
To justify that deduction, the CA cited the
case of Republic v. Court of Appeals. 45 It is
worth noting that in that particular case, the
Court, in sustaining the finding of the lower
court that a marriage license was lacking,
relied on the Certification issued by the Civil
Registrar of Pasig, which merely stated that
the alleged marriage license could not be
located as the same did not appear in their
records. Nowhere in the Certification was it
categorically stated that the officer involved
conducted a diligent search, nor is a
categorical declaration absolutely necessary
for Sec. 28, Rule 132 of the Rules of Court to
apply. IEHDAT
Under Sec. 3 (m), Rule 131 of the Rules of
Court, it is a disputable presumption that an
official duty has been regularly performed,
absent contradiction or other evidence to the
contrary. We held, "The presumption of
regularity of official acts may be rebutted by
affirmative evidence of irregularity or failure to
perform a duty." 46 No such affirmative
evidence was shown that the Municipal Civil
Registrar was lax in performing her duty of
checking the records of their office, thus the
presumption must stand. In fact, proof does
exist of a diligent search having been
conducted, as Marriage License No. 9969967
was indeed located and submitted to the
court. The fact that the names in said license
do not correspond to those of Gloria and Syed
does not overturn the presumption that the
registrar conducted a diligent search of the
records of her office.
It is telling that Gloria failed to present their
marriage license or a copy thereof to the court.
She failed to explain why the marriage license
was secured in Carmona, Cavite, a location
where, admittedly, neither party resided. She
took no pains to apply for the license, so she
is not the best witness to testify to the validity
and existence of said license. Neither could
the other witnesses she presented prove the
existence of the marriage license, as none of
them applied for the license in Carmona,
Cavite. Her mother, Felicitas Goo, could not
even testify as to the contents of the license,
having admitted to not reading all of its
contents. Atty. Sanchez, one of the sponsors,
whom Gloria and Felicitas Goo approached for
assistance in securing the license, admitted
not knowing where the license came from. The
task of applying for the license was delegated
to a certain Qualin, who could have testified
as to how the license was secured and thus
impeached the certification of the Municipal
Civil Registrar as well as the testimony of her
representative. As Gloria failed to present this
Qualin, the certification of the Municipal Civil
Registrar still enjoys probative value. STcAIa
It is also noted that the solemnizing officer
testified that the marriage contract and a copy
of the marriage license were submitted to the
Local Civil Registrar of Manila. Thus, a copy of
the marriage license could have simply been
secured from that office and submitted to the
court. However, Gloria inexplicably failed to do
so, further weakening her claim that there
was a valid marriage license issued for her
and Syed.
In the case of Cario v. Cario, 47 following
the case of Republic, 48 it was held that the
certification of the Local Civil Registrar that
their office had no record of a marriage license
was adequate to prove the non-issuance of
said license. The case of Cario further held
that the presumed validity of the marriage of
the parties had been overcome, and that it
became the burden of the party alleging a
valid marriage to prove that the marriage was
valid, and that the required marriage license
had been secured. 49 Gloria has failed to
discharge that burden, and the only
conclusion that can be reached is that no
valid marriage license was issued. It cannot be
said that there was a simple irregularity in the
marriage license that would not affect the
validity of the marriage, as no license was
presented by the respondent. No marriage
license was proven to have been issued to
Gloria and Syed, based on the certification of
the Municipal Civil Registrar of Carmona,
Cavite and Gloria's failure to produce a copy
of the alleged marriage license.
To bolster its ruling, the CA cited other
evidence to support its conclusion that Gloria
and Syed were validly married. To quote the
CA:
Moreover, the record is replete with evidence,
testimonial and documentary, that appellant
and appellee have been validly married and
there was compliance with all the requisites
laid down by law. Both parties are legally
capacitated to marry. A certificate of legal
capacity was even issued by the Embassy of
Pakistan in favor of appellee. The parties
herein gave their consent freely. Appellee
admitted that the signature above his name in
the marriage contract was his. Several
pictures were presented showing appellant
and appellee, before the solemnizing officer,
the witnesses and other members of
appellant's family, taken during the marriage
ceremony, as well as in the restaurant where
the lunch was held after the marriage
ceremony. Most telling of all is Exhibit "5-C"
which shows appellee signing the Marriage
Contract. SETaHC
xxx xxx xxx
The parties have comported themselves as
husband and wife and has [sic] one offspring,
Aliea Fatima Goo Abbas, who was born on 15
June 1993. It took appellee more than ten (10)
years before he filed on 01 August 2003 his
Petition for Declaration of Nullity of Marriage
under Article 4 of the Family Code. We take
serious note that said Petition appears to have
been instituted by him only after an
Information for Bigamy (Exhibit "1") dated 10
January 2003 was filed against him for
contracting a second or subsequent marriage
with one Ma. Corazon (Maryam) T.
Buenaventura. We are not ready to reward
(appellee) by declaring the nullity of his
marriage and give him his freedom and in the
process allow him to profit from his own deceit
and perfidy. 50
All the evidence cited by the CA to show that a
wedding ceremony was conducted and a
marriage contract was signed does not operate
to cure the absence of a valid marriage
license. Article 4 of the Family Code is clear
when it says, "The absence of any of the
essential or formal requisites shall render the
marriage void ab initio, except as stated in
Article 35 (2)." Article 35 (3) of the Family
Code also provides that a marriage solemnized
without a license is void from the beginning,
except those exempt from the license
requirement under Articles 27 to 34, Chapter
2, Title I of the same Code. 51 Again, this
marriage cannot be characterized as among
the exemptions, and thus, having been
solemnized without a marriage license, is void
ab initio.
As to the motive of Syed in seeking to annul
his marriage to Gloria, it may well be that his
motives are less than pure, that he seeks to
evade a bigamy suit. Be that as it may, the
same does not make up for the failure of the
respondent to prove that they had a valid
marriage license, given the weight of evidence
presented by petitioner. The lack of a valid
marriage license cannot be attributed to him,
as it was Gloria who took steps to procure the
same. The law must be applied. As the
marriage license, a formal requisite, is clearly
absent, the marriage of Gloria and Syed is
void ab initio. aESHDA
WHEREFORE, in light of the foregoing, the
petition is hereby GRANTED. The assailed
Decision dated March 11, 2008 and
Resolution dated July 24, 2008 of the Court of
Appeals in CA-G.R. CV No. 86760 are hereby
REVERSED and SET ASIDE. The Decision of
the Regional Trial Court, Branch 109, Pasay
City dated October 5, 2005 in Civil Case No.
03-0382-CFM annulling the marriage of
petitioner with respondent on January 9,
1993 is hereby REINSTATED.
No costs.
SO ORDERED.
Peralta, Abad, Mendoza and Leonen, JJ.,
concur.
SECOND DIVISION
[G.R. No. 201061. July 3, 2013.]
SALLY GO-BANGAYAN, petitioner, vs.
BENJAMIN BANGAYAN, JR., respondent.
DECISION
CARPIO, J p:
The Case
Before the Court is a petition for review 1
assailing the 17 August 2011 Decision 2 and
the 14 March 2012 Resolution 3 of the Court
of Appeals in CA-G.R. CV No. 94226.
CSDTac
The Antecedent Facts
On 15 March 2004, Benjamin Bangayan, Jr.
(Benjamin) filed a petition for declaration of a
non-existent marriage and/or declaration of
nullity of marriage before the Regional Trial
Court of Manila, Branch 43 (trial court). The
case was docketed as Civil Case No.
04109401. Benjamin alleged that on 10
September 1973, he married Azucena Alegre
(Azucena) in Caloocan City. They had three
children, namely, Rizalyn, Emmamylin, and
Benjamin III.
In 1979, Benjamin developed a romantic
relationship with Sally Go-Bangayan (Sally)
who was a customer in the auto parts and
supplies business owned by Benjamin's
family. In December 1981, Azucena left for the
United States of America. In February 1982,
Benjamin and Sally lived together as husband
and wife. Sally's father was against the
relationship. On 7 March 1982, in order to
appease her father, Sally brought Benjamin to
an office in Santolan, Pasig City where they
signed a purported marriage contract. Sally,
knowing Benjamin's marital status, assured
him that the marriage contract would not be
registered. EAcHCI
Benjamin and Sally's cohabitation produced
two children, Bernice and Bentley. During the
period of their cohabitation, they acquired the
following real properties:
(1) property under Transfer Certificate of
Title (TCT) No. 61722 registered in the names
of Benjamin and Sally as spouses;
(2) properties under TCT Nos. 61720 and
190860 registered in the name of Benjamin,
married to Sally;
(3) properties under Condominium
Certificate of Title (CCT) Nos. 8782 and 8783
registered in the name of Sally, married to
Benjamin; and
(4) properties under TCT Nos. N-193656
and 253681 registered in the name of Sally as
a single individual. THEDCA
The relationship of Benjamin and Sally ended
in 1994 when Sally left for Canada, bringing
Bernice and Bentley with her. She then filed
criminal actions for bigamy and falsification of
public documents against Benjamin, using
their simulated marriage contract as evidence.
Benjamin, in turn, filed a petition for
declaration of a non-existent marriage and/or
declaration of nullity of marriage before the
trial court on the ground that his marriage to
Sally was bigamous and that it lacked the
formal requisites to a valid marriage.
Benjamin also asked the trial court for the
partition of the properties he acquired with
Sally in accordance with Article 148 of the
Family Code, for his appointment as
administrator of the properties during the
pendency of the case, and for the declaration
of Bernice and Bentley as illegitimate children.
A total of 44 registered properties became the
subject of the partition before the trial court.
Aside from the seven properties enumerated
by Benjamin in his petition, Sally named 37
properties in her answer. ADaECI
After Benjamin presented his evidence, Sally
filed a demurrer to evidence which the trial
court denied. Sally filed a motion for
reconsideration which the trial court also
denied. Sally filed a petition for certiorari
before the Court of Appeals and asked for the
issuance of a temporary restraining order
and/or injunction which the Court of Appeals
never issued. Sally then refused to present
any evidence before the trial court citing the
pendency of her petition before the Court of
Appeals. The trial court gave Sally several
opportunities to present her evidence on 28
February 2008, 10 July 2008, 4 September
2008, 11 September 2008, 2 October 2008, 23
October 2008, and 28 November 2008.
Despite repeated warnings from the trial
court, Sally still refused to present her
evidence, prompting the trial court to consider
the case submitted for decision.
The Decision of the Trial Court
In a Decision 4 dated 26 March 2009, the trial
court ruled in favor of Benjamin. The trial
court gave weight to the certification dated 21
July 2004 from the Pasig Local Civil Registrar,
which was confirmed during trial, that only
Marriage License Series Nos. 6648100 to
6648150 were issued for the month of
February 1982 and the purported Marriage
License No. N-07568 was not issued to
Benjamin and Sally. 5 The trial court ruled
that the marriage was not recorded with the
local civil registrar and the National Statistics
Office because it could not be registered due
to Benjamin's subsisting marriage with
Azucena. EDIHSC
The trial court ruled that the marriage
between Benjamin and Sally was not
bigamous. The trial court ruled that the
second marriage was void not because of the
existence of the first marriage but because of
other causes, particularly, the lack of a
marriage license. Hence, bigamy was not
committed in this case. The trial court did not
rule on the issue of the legitimacy status of
Bernice and Bentley because they were not
parties to the case. The trial court denied
Sally's claim for spousal support because she
was not married to Benjamin. The trial court
likewise denied support for Bernice and
Bentley who were both of legal age and did not
ask for support.
On the issue of partition, the trial court ruled
that Sally could not claim the 37 properties
she named in her answer as part of her
conjugal properties with Benjamin. The trial
court ruled that Sally was not legally married
to Benjamin. Further, the 37 properties that
Sally was claiming were owned by Benjamin's
parents who gave the properties to their
children, including Benjamin, as advance
inheritance. The 37 titles were in the names of
Benjamin and his brothers and the phrase
"married to Sally Go" was merely descriptive of
Benjamin's civil status in the title. As regards
the two lots under TCT Nos. 61720 and
190860, the trial court found that they were
bought by Benjamin using his own money and
that Sally failed to prove any actual
contribution of money, property or industry in
their purchase. The trial court found that
Sally was a registered co-owner of the lots
covered by TCT Nos. 61722, N-193656, and
253681 as well as the two condominium units
under CCT Nos. 8782 and 8783. However, the
trial court ruled that the lot under TCT No.
61722 and the two condominium units were
purchased from the earnings of Benjamin
alone. The trial court ruled that the properties
under TCT Nos. 61722, 61720, and 190860
and CCT Nos. 8782 and 8783 were part of the
conjugal partnership of Benjamin and
Azucena, without prejudice to Benjamin's
right to dispute his conjugal state with
Azucena in a separate proceeding. aSIAHC
The trial court further ruled that Sally acted in
bad faith because she knew that Benjamin
was married to Azucena. Applying Article 148
of the Family Code, the trial court forfeited
Sally's share in the properties covered under
TCT Nos. N-193656 and 253681 in favor of
Bernice and Bentley while Benjamin's share
reverted to his conjugal ownership with
Azucena.
The dispositive portion of the trial court's
decision reads:
ACCORDINGLY, the marriage of BENJAMIN
BANGAYAN, JR. and SALLY S. GO on March
7, 1982 at Santolan, Pasig, Metro Manila is
hereby declared NULL and VOID AB INITIO. It
is further declared NON-EXISTENT. cDACST
Respondent's claim as co-owner or conjugal
owner of the thirty-seven (37) properties under
TCT Nos. 17722, 17723, 17724, 17725,
126397, RT-73480, and RT-86821; in Manila,
TCT Nos. 188949, 188950, 188951, 193035,
194620, 194621, 194622, 194623, 194624,
194625, 194626, 194627, 194628, 194629,
194630, 194631, 194632, 194633, 194634,
194635, 194636, 194637, 194638, 194639,
198651, 206209, 206210, 206211, 206213
and 206215 is DISMISSED for lack of merit.
The registered owners, namely: Benjamin B.
Bangayan, Jr., Roberto E. Bangayan, Ricardo
B. Bangayan and Rodrigo B. Bangayan are the
owners to the exclusion of "Sally Go".
Consequently, the Registry of Deeds for
Quezon City and Manila are directed to delete
the words "married to Sally Go" from these
thirty[-]seven (37) titles.
Properties under TCT Nos. 61722, 61720 and
190860, CCT Nos. 8782 and 8783 are
properties acquired from petitioner's money
without contribution from respondent, hence,
these are properties of the petitioner and his
lawful wife. Consequently, petitioner is
appointed the administrator of these five (5)
properties. Respondent is ordered to submit
an accounting of her collections of income
from these five (5) properties within thirty (30)
days from notice hereof. Except for lot under
TCT No. 61722, respondent is further directed
within thirty (30) days from notice hereof to
turn over and surrender control and
possession of these properties including the
documents of title to the petitioner. cDSAEI
On the properties under TCT Nos. N-193656
and N-253681, these properties are under co-
ownership of the parties shared by them
equally. However, the share of respondent is
declared FORFEITED in favor of Bernice Go
Bangayan and Bentley Go Bangayan. The
share of the petitioner shall belong to his
conjugal ownership with Azucena Alegre. The
liquidation, partition and distribution of these
two (2) properties shall be further processed
pursuant to Section 21 of A.M. No. 02-11-10
of March 15, 2003.
Other properties shall be adjudicated in a
later proceeding pursuant to Section 21 of
A.M. No. 02-11-10.
Respondent's claim of spousal support,
children support and counterclaims are
DISMISSED for lack of merit. Further, no
declaration of the status of the parties'
children.
No other relief granted. HAaDTE
Furnish copy of this decision to the parties,
their counsels, the Trial Prosecutor, the
Solicitor General and the Registry of Deeds in
Manila, Quezon City and Caloocan.
SO ORDERED. 6
Sally filed a Verified and Vigorous Motion for
Inhibition with Motion for Reconsideration. In
its Order dated 27 August 2009, 7 the trial
court denied the motion. Sally appealed the
trial court's decision before the Court of
Appeals.
The Decision of the Court of Appeals
In its 17 August 2011 Decision, the Court of
Appeals partly granted the appeal. The Court
of Appeals ruled that the trial court did not err
in submitting the case for decision. The Court
of Appeals noted that there were six resettings
of the case, all made at the instance of Sally,
for the initial reception of evidence, and Sally
was duly warned to present her evidence on
the next hearing or the case would be deemed
submitted for decision. However, despite the
warning, Sally still failed to present her
evidence. She insisted on presenting Benjamin
who was not around and was not subpoenaed
despite the presence of her other witnesses.
ICHcaD
The Court of Appeals rejected Sally's allegation
that Benjamin failed to prove his action for
declaration of nullity of marriage. The Court of
Appeals ruled that Benjamin's action was
based on his prior marriage to Azucena and
there was no evidence that the marriage was
annulled or dissolved before Benjamin
contracted the second marriage with Sally.
The Court of Appeals ruled that the trial court
committed no error in declaring Benjamin's
marriage to Sally null and void.
The Court of Appeals ruled that the property
relations of Benjamin and Sally was governed
by Article 148 of the Family Code. The Court
of Appeals ruled that only the properties
acquired by the parties through their actual
joint contribution of money, property or
industry shall be owned by them in common
in proportion to their respective contribution.
The Court of Appeals ruled that the 37
properties being claimed by Sally rightfully
belong to Benjamin and his siblings.
As regards the seven properties claimed by
both parties, the Court of Appeals ruled that
only the properties under TCT Nos. 61720 and
190860 registered in the name of Benjamin
belong to him exclusively because he was able
to establish that they were acquired by him
solely. The Court of Appeals found that the
properties under TCT Nos. N-193656 and
253681 and under CCT Nos. 8782 and 8783
were exclusive properties of Sally in the
absence of proof of Benjamin's actual
contribution in their purchase. The Court of
Appeals ruled that the property under TCT No.
61722 registered in the names of Benjamin
and Sally shall be owned by them in common,
to be shared equally. However, the share of
Benjamin shall accrue to the conjugal
partnership under his existing marriage with
Azucena while Sally's share shall accrue to
her in the absence of a clear and convincing
proof of bad faith. IaDSEA
Finally, the Court of Appeals ruled that Sally
failed to present clear and convincing evidence
that would show bias and prejudice on the
part of the trial judge that would justify his
inhibition from the case.
The dispositive portion of the Court of Appeals'
decision reads:
WHEREFORE, premises considered, the
instant appeal is PARTLY GRANTED. The
assailed Decision and Order dated March 26,
2009 and August 27, 2009, respectively, of the
Regional Trial Court of Manila, Branch 43, in
Civil Case No. 04-109401 are hereby
AFFIRMED with modification declaring TCT
Nos. 61720 and 190860 to be exclusively
owned by the petitioner-appellee while the
properties under TCT Nos. N-193656 and
253681 as well as [CCT] Nos. 8782 and 8783
shall be solely owned by the respondent-
appellant. On the other hand, TCT No. 61722
shall be owned by them and common and to
be shared equally but the share of the
petitioner-appellee shall accrue to the
conjugal partnership under his first marriage
while the share of respondent-appellant shall
accrue to her. The rest of the decision stands.
AHDacC
SO ORDERED. 8
Sally moved for the reconsideration of the
Court of Appeals' decision. In its 14 March
2012 Resolution, the Court of Appeals denied
her motion.
Hence, the petition before this Court.
The Issues
Sally raised the following issues before this
Court:
(1) Whether the Court of Appeals
committed a reversible error in affirming the
trial court's ruling that Sally had waived her
right to present evidence;
(2) Whether the Court of Appeals
committed a reversible error in affirming the
trial court's decision declaring the marriage
between Benjamin and Sally null and void ab
initio and non-existent; and
(3) Whether the Court of Appeals
committed a reversible error in affirming with
modification the trial court's decision
regarding the property relations of Benjamin
and Sally. IEHSDA
The Ruling of this Court
The petition has no merit.
Waiver of Right to Present Evidence
Sally alleges that the Court of Appeals erred in
affirming the trial court's ruling that she
waived her right to present her evidence. Sally
alleges that in not allowing her to present
evidence that she and Benjamin were married,
the trial court abandoned its duty to protect
marriage as an inviolable institution.
It is well-settled that a grant of a motion for
continuance or postponement is not a matter
of right but is addressed to the discretion of
the trial court. 9 In this case, Sally's
presentation of evidence was scheduled on 28
February 2008. Thereafter, there were six
resettings of the case: on 10 July 2008, 4 and
11 September 2008, 2 and 28 October 2008,
and 28 November 2008. They were all made at
Sally's instance. Before the scheduled hearing
of 28 November 2008, the trial court warned
Sally that in case she still failed to present her
evidence, the case would be submitted for
decision. On the date of the scheduled
hearing, despite the presence of other
available witnesses, Sally insisted on
presenting Benjamin who was not even
subpoenaed on that day. Sally's counsel
insisted that the trial court could not dictate
on the priority of witnesses to be presented,
disregarding the trial court's prior warning
due to the numerous resettings of the case.
Sally could not complain that she had been
deprived of her right to present her evidence
because all the postponements were at her
instance and she was warned by the trial
court that it would submit the case for
decision should she still fail to present her
evidence on 28 November 2008. AEITDH
We agree with the trial court that by her
continued refusal to present her evidence, she
was deemed to have waived her right to
present them. As pointed out by the Court of
Appeals, Sally's continued failure to present
her evidence despite the opportunities given
by the trial court showed her lack of interest
to proceed with the case. Further, it was clear
that Sally was delaying the case because she
was waiting for the decision of the Court of
Appeals on her petition questioning the trial
court's denial of her demurrer to evidence,
despite the fact that the Court of Appeals did
not issue any temporary restraining order as
Sally prayed for. Sally could not accuse the
trial court of failing to protect marriage as an
inviolable institution because the trial court
also has the duty to ensure that trial proceeds
despite the deliberate delay and refusal to
proceed by one of the parties. 10
Validity of the Marriage between Benjamin
and Sally
Sally alleges that both the trial court and the
Court of Appeals recognized her marriage to
Benjamin because a marriage could not be
non-existent and, at the same time, null and
void ab initio. Sally further alleges that if she
were allowed to present her evidence, she
would have proven her marriage to Benjamin.
To prove her marriage to Benjamin, Sally
asked this Court to consider that in acquiring
real properties, Benjamin listed her as his wife
by declaring he was "married to" her; that
Benjamin was the informant in their
children's birth certificates where he stated
that he was their father; and that Benjamin
introduced her to his family and friends as his
wife. In contrast, Sally claims that there was
no real property registered in the names of
Benjamin and Azucena. Sally further alleges
that Benjamin was not the informant in the
birth certificates of his children with Azucena.
First, Benjamin's marriage to Azucena on 10
September 1973 was duly established before
the trial court, evidenced by a certified true
copy of their marriage contract. At the time
Benjamin and Sally entered into a purported
marriage on 7 March 1982, the marriage
between Benjamin and Azucena was valid and
subsisting. IHCDAS
On the purported marriage of Benjamin and
Sally, Teresita Oliveros (Oliveros), Registration
Officer II of the Local Civil Registrar of Pasig
City, testified that there was no valid marriage
license issued to Benjamin and Sally. Oliveros
confirmed that only Marriage Licence Nos.
6648100 to 6648150 were issued for the
month of February 1982. Marriage License No.
N-07568 did not match the series issued for
the month. Oliveros further testified that the
local civil registrar of Pasig City did not issue
Marriage License No. N-07568 to Benjamin
and Sally. The certification from the local civil
registrar is adequate to prove the non-
issuance of a marriage license and absent any
suspicious circumstance, the certification
enjoys probative value, being issued by the
officer charged under the law to keep a record
of all data relative to the issuance of a
marriage license. 11 Clearly, if indeed
Benjamin and Sally entered into a marriage
contract, the marriage was void from the
beginning for lack of a marriage license. 12
It was also established before the trial court
that the purported marriage between
Benjamin and Sally was not recorded with the
local civil registrar and the National Statistics
Office. The lack of record was certified by
Julieta B. Javier, Registration Officer IV of the
Office of the Local Civil Registrar of the
Municipality of Pasig; 13 Teresita R. Ignacio,
Chief of the Archives Division of the Records
Management and Archives Office, National
Commission for Culture and the Arts; 14 and
Lourdes J. Hufana, Director III, Civil
Registration Department of the National
Statistics Office. 15 The documentary and
testimonial evidence proved that there was no
marriage between Benjamin and Sally. As
pointed out by the trial court, the marriage
between Benjamin and Sally "was made only
in jest" 16 and "a simulated marriage, at the
instance of [Sally], intended to cover her up
from expected social humiliation coming from
relatives, friends and the society especially
from her parents seen as Chinese
conservatives." 17 In short, it was a fictitious
marriage. IScaAE
The fact that Benjamin was the informant in
the birth certificates of Bernice and Bentley
was not a proof of the marriage between
Benjamin and Sally. This Court notes that
Benjamin was the informant in Bernice's birth
certificate which stated that Benjamin and
Sally were married on 8 March 1982 18 while
Sally was the informant in Bentley's birth
certificate which also stated that Benjamin
and Sally were married on 8 March 1982. 19
Benjamin and Sally were supposedly married
on 7 March 1982 which did not match the
dates reflected on the birth certificates.
We see no inconsistency in finding the
marriage between Benjamin and Sally null
and void ab initio and, at the same time, non-
existent. Under Article 35 of the Family Code,
a marriage solemnized without a license,
except those covered by Article 34 where no
license is necessary, "shall be void from the
beginning." In this case, the marriage between
Benjamin and Sally was solemnized without a
license. It was duly established that no
marriage license was issued to them and that
Marriage License No. N-07568 did not match
the marriage license numbers issued by the
local civil registrar of Pasig City for the month
of February 1982. The case clearly falls under
Section 3 of Article 35 20 which made their
marriage void ab initio. The marriage between
Benjamin and Sally was also non-existent.
Applying the general rules on void or
inexistent contracts under Article 1409 of the
Civil Code, contracts which are absolutely
simulated or fictitious are "inexistent and void
from the beginning." 21 Thus, the Court of
Appeals did not err in sustaining the trial
court's ruling that the marriage between
Benjamin and Sally was null and void ab initio
and non-existent. EDSAac
Except for the modification in the distribution
of properties, the Court of Appeals affirmed in
all aspects the trial court's decision and ruled
that "[t]he rest of the decision stands." 22
While the Court of Appeals did not discuss
bigamous marriages, it can be gleaned from
the dispositive portion of the decision
declaring that "[t]he rest of the decision
stands" that the Court of Appeals adopted the
trial court's discussion that the marriage
between Benjamin and Sally is not bigamous.
The trial court stated:
On whether or not the parties' marriage is
bigamous under the concept of Article 349 of
the Revised Penal Code, the marriage is not
bigamous. It is required that the first or
former marriage shall not be null and void.
The marriage of the petitioner to Azucena
shall be assumed as the one that is valid,
there being no evidence to the contrary and
there is no trace of invalidity or irregularity on
the face of their marriage contract. However, if
the second marriage was void not because of
the existence of the first marriage but for
other causes such as lack of license, the crime
of bigamy was not committed. In People v. De
Lara [CA, 51 O.G., 4079], it was held that
what was committed was contracting marriage
against the provisions of laws not under
Article 349 but Article 350 of the Revised
Penal Code. Concluding, the marriage of the
parties is therefore not bigamous because
there was no marriage license. The daring and
repeated stand of respondent that she is
legally married to petitioner cannot, in any
instance, be sustained. Assuming that her
marriage to petitioner has the marriage
license, yet the same would be bigamous,
civilly or criminally as it would be invalidated
by a prior existing valid marriage of petitioner
and Azucena. 23
For bigamy to exist, the second or subsequent
marriage must have all the essential requisites
for validity except for the existence of a prior
marriage. 24 In this case, there was really no
subsequent marriage. Benjamin and Sally just
signed a purported marriage contract without
a marriage license. The supposed marriage
was not recorded with the local civil registrar
and the National Statistics Office. In short, the
marriage between Benjamin and Sally did not
exist. They lived together and represented
themselves as husband and wife without the
benefit of marriage. CaDATc
Property Relations Between Benjamin and
Sally
The Court of Appeals correctly ruled that the
property relations of Benjamin and Sally is
governed by Article 148 of the Family Code
which states:
Art. 148. In cases of cohabitation not
falling under the preceding Article, only the
properties acquired by both of the parties
through their actual joint contribution of
money, property, or industry shall be owned
by them in common in proportion to their
respective contributions. In the absence of
proof to the contrary, their contributions and
corresponding shares are presumed to be
equal. The same rule and presumption shall
apply to joint deposits of money and evidences
of credit.
If one of the parties is validly married to
another, his or her share in the co-ownership
shall accrue to the absolute community of
conjugal partnership existing in such valid
marriage. If the party who acted in bad faith is
not validly married to another, his or her
share shall be forfeited in the manner
provided in the last paragraph of the
preceding Article.
The foregoing rules on forfeiture shall likewise
apply even if both parties are in bad faith.
AaCEDS
Benjamin and Sally cohabitated without the
benefit of marriage. Thus, only the properties
acquired by them through their actual joint
contribution of money, property, or industry
shall be owned by them in common in
proportion to their respective contributions.
Thus, both the trial court and the Court of
Appeals correctly excluded the 37 properties
being claimed by Sally which were given by
Benjamin's father to his children as advance
inheritance. Sally's Answer to the petition
before the trial court even admitted that
"Benjamin's late father himself conveyed a
number of properties to his children and their
respective spouses which included Sally. . . ."
25
As regards the seven remaining properties, we
rule that the decision of the Court of Appeals
is more in accord with the evidence on record.
Only the property covered by TCT No. 61722
was registered in the names of Benjamin and
Sally as spouses. 26 The properties under TCT
Nos. 61720 and 190860 were in the name of
Benjamin 27 with the descriptive title "married
to Sally." The property covered by CCT Nos.
8782 and 8783 were registered in the name of
Sally 28 with the descriptive title "married to
Benjamin" while the properties under TCT
Nos. N-193656 and 253681 were registered in
the name of Sally as a single individual. We
have ruled that the words "married to"
preceding the name of a spouse are merely
descriptive of the civil status of the registered
owner. 29 Such words do not prove co-
ownership. Without proof of actual
contribution from either or both spouses,
there can be no co-ownership under Article
148 of the Family Code. 30
Inhibition of the Trial Judge
Sally questions the refusal of Judge Roy G.
Gironella (Judge Gironella) to inhibit himself
from hearing the case. She cited the failure of
Judge Gironella to accommodate her in
presenting her evidence. She further alleged
that Judge Gironella practically labeled her as
an opportunist in his decision, showing his
partiality against her and in favor of
Benjamin. cIHCST
We have ruled that the issue of voluntary
inhibition is primarily a matter of conscience
and sound discretion on the part of the judge.
31 To justify the call for inhibition, there must
be extrinsic evidence to establish bias, bad
faith, malice, or corrupt purpose, in addition
to palpable error which may be inferred from
the decision or order itself. 32 In this case, we
have sufficiently explained that Judge
Gironella did not err in submitting the case for
decision because of Sally's continued refusal
to present her evidence.
We reviewed the decision of the trial court and
while Judge Gironella may have used
uncomplimentary words in writing the
decision, they are not enough to prove his
prejudice against Sally or show that he acted
in bad faith in deciding the case that would
justify the call for his voluntary inhibition.
WHEREFORE, we AFFIRM the 17 August
2011 Decision and the 14 March 2012
Resolution of the Court of Appeals in CA-G.R.
CV No. 94226.
SO ORDERED. CHDaAE
Brion, Bersamin, * Del Castillo and Perez, JJ.,
concur.
FIRST DIVISION
[G.R. No. 133778. March 14, 2000.]
ENGRACE NIAL for Herself and as
Guardian ad Litem of the minors BABYLINE
NIAL, INGRID NIAL, ARCHIE NIAL &
PEPITO NIAL, JR., petitioners, vs. NORMA
BAYADOG *, respondent.
Roldan R. Mangubat for petitioners.
Daryll A. Amante for private respondent.
SYNOPSIS
Pepito Nial was married to Teodulfa Bellones.
Out of their marriage were born herein
petitioners. Teodulfa was shot by Pepito
resulting in her death on April 24, 1985. One
year and 8 months thereafter, Pepito and
respondent Norma Badayog got married
without any marriage license. On February
19, 1997, Pepito died in a car accident. After
their father's death, petitioners filed a petition
for declaration of nullity of the marriage of
Pepito to Norma alleging that the said
marriage was void for lack of a marriage
license. The case was filed under the
assumption that the validity or invalidity of
the second marriage would affect petitioner's
successional rights. Norma filed a motion to
dismiss on the ground that petitioners have
no cause of action since they are not among
the persons who could file an action for
"annulment of marriage" under Article 47 of
the Family Code. The lower court ruled that
petitioners should have filed the action to
declare null and void their father's marriage to
respondent before his death, applying by
analogy Article 47 of the Family Code which
enumerates the time and the persons who
could initiate an action for annulment of
marriage. Hence, this petition. AcTDaH
The Supreme Court reversed and set aside the
assailed decision of the trial court. The Court
ruled that the second marriage involved in
this case is not covered by the exception to the
requirement of a marriage license, therefore, it
is void ab initio because of the absence of
such element. According to the Court, it can
not be said that Pepito and respondent have
lived with each other as husband and wife for
at least five years prior to their wedding day.
From the time Pepito's first marriage was
dissolved to the time of his marriage with
respondent, only about twenty months had
elapsed. Even assuming that Pepito and his
first wife had separated in fact, and thereafter
both Pepito and respondent had started living
with each other that has already lasted for five
years, the fact remains that their five-year
period cohabitation was not the cohabitation
contemplated by law. It should be in the
nature of a perfect union that is valid under
the law but rendered imperfect only by the
absence of the marriage contract. Pepito had a
subsisting marriage at the time when he
started cohabiting with respondent. It is
immaterial that when they lived with each
other, Pepito had already been separated in
fact from his lawful spouse. The subsistence
of the marriage even where there was actual
severance of the filial companionship between
the spouses cannot make any cohabitation by
either spouse with any third party as being
one as "husband and wife." The Court also
ruled that petitioners have the personality to
file a petition to declare their father's marriage
void because a void marriage can be attacked
collaterally and can be questioned even after
the death of either party.
SYLLABUS
1. CIVIL LAW; CIVIL CODE; MARRIAGE;
MARRIAGES OF EXCEPTIONAL CHARACTER;
THE 5-YEAR COHABITATION PERIOD
CONTEMPLATED BY ARTICLE 76 OF THE
CIVIL CODE SHOULD BE THE YEARS
IMMEDIATELY BEFORE THE DAY OF THE
MARRIAGE AND IT SHOULD BE A PERIOD
OF COHABITATION CHARACTERIZED BY
EXCLUSIVITY MEANING NO THIRD PARTY
WAS INVOLVED AT ANY TIME WITHIN THE 5
YEARS AND CONTINUITY THAT IS
UNBROKEN. Working on the assumption
that Pepito and Norma have lived together as
husband and wife for five years without the
benefit of marriage, that five-year period
should be computed on the basis of a
cohabitation as "husband and wife" where the
only missing factor is the special contract of
marriage to validate the union. In other words,
the five-year common-law cohabitation period,
which is counted back from the date of
celebration of marriage, should be a period of
legal union had it not been for the absence of
the marriage. This 5-year period should be the
years immediately before the day of the
marriage and it should be a period of
cohabitation characterized by exclusivity
meaning no third party was involved at any
time within the 5 years and continuity that
is unbroken. Otherwise, if that continuous 5-
year cohabitation is computed without any
distinction as to whether the parties were
capacitated to marry each other during the
entire five years, then the law would be
sanctioning immorality and encouraging
parties to have common law relationships and
placing them on the same footing with those
who lived faithfully with their spouse.
Marriage being a special relationship must be
respected as such and its requirements must
be strictly observed. The presumption that a
man and a woman deporting themselves as
husband and wife is based on the
approximation of the requirements of the law.
The parties should not be afforded any excuse
to not comply with every single requirement
and later use the same missing element as a
pre-conceived escape ground to nullify their
marriage. There should be no exemption from
securing a marriage license unless the
circumstances clearly fall within the ambit of
the exception. It should be noted that a
license is required in order to notify the public
that two persons are about to be united in
matrimony and that anyone who is aware or
has knowledge of any impediment to the
union of the two shall make it known to the
local civil registrar.
2. ID.; ID.; ID.; ID.; CASE AT BAR; THE
FIVE-YEAR COHABITATION OF
PETITIONERS' FATHER AND PRIVATE
RESPONDENT WAS NOT THE
COHABITATION CONTEMPLATED BY LAW;
THE SUBSISTENCE OF THE MARRIAGE
EVEN WHERE THERE WAS ACTUAL
SEVERANCE OF THE FILIAL
COMPANIONSHIP BETWEEN THE SPOUSES
CANNOT MAKE ANY COHABITATION BY
EITHER SPOUSE WITH ANY THIRD PARTY AS
BEING ONE AS "HUSBAND AND WIFE." In
this case, at the time of Pepito and
respondent's marriage, it cannot be said that
they have lived with each other as husband
and wife for at least five years prior to their
wedding day. From the time Pepito's first
marriage was dissolved to the time of his
marriage with respondent, only about twenty
months had elapsed. Even assuming that
Pepito and his first wife had separated in fact,
and thereafter both Pepito and respondent
had started living with each other that has
already lasted for five years, the fact remains
that their five-year period cohabitation was
not the cohabitation contemplated by law. It
should be in the nature of a perfect union that
is valid under the law but rendered imperfect
only by the absence of the marriage contract.
Pepito had a subsisting marriage at the time
when he started cohabiting with respondent.
It is immaterial that when they lived with each
other, Pepito had already been separated in
fact from his lawful spouse. The subsistence
of the marriage even where there was actual
severance of the filial companionship between
the spouses cannot make any cohabitation by
either spouse with any third party as being
one as "husband and wife." aESHDA
3. ID.; ID.; ID.; ID.; PETITIONERS HAVE
THE PERSONALITY TO FILE A PETITION TO
DECLARE THEIR FATHER'S MARRIAGE VOID
EVEN AFTER HIS DEATH; VOID MARRIAGES
CAN BE ATTACKED COLLATERALLY AND
CAN BE QUESTIONED EVEN AFTER THE
DEATH OF EITHER PARTY. Contrary to
respondent judge's ruling, Article 47 of the
Family Code cannot be applied even by
analogy to petitions for declaration of nullity of
marriage. The second ground for annulment of
marriage relied upon by the trial court, which
allows "the sane spouse" to file an annulment
suit "at any time before the death of either
party" is inapplicable. Article 47 pertains to
the grounds, periods and persons who can file
an annulment suit, not a suit for declaration
of nullity of marriage. The Code is silent as to
who can file a petition to declare the nullity of
a marriage. Voidable and void marriages are
not identical. A marriage that is annullable is
valid until otherwise declared by the court;
whereas a marriage that is void ab initio is
considered as having never to have taken
place and cannot be the source of rights. The
first can be generally ratified or confirmed by
free cohabitation or prescription while the
other can never be ratified. A voidable
marriage cannot be assailed collaterally except
in a direct proceeding while a void marriage
can be attacked collaterally. Consequently,
void marriages can be questioned even after
the death of either party but voidable
marriages can be assailed only during the
lifetime of the parties and not after death of
either, in which case the parties and their
offspring will be left as if the marriage had
been perfectly valid. That is why the action or
defense for nullity is imprescriptible, unlike
voidable marriages where the action
prescribes. Only the parties to a voidable
marriage can assail it but any proper
interested party may attack a void marriage.
Void marriages have no legal effects except
those declared by law concerning the
properties of the alleged spouses, regarding
co-ownership or ownership through actual
joint contribution, and its effect on the
children born to such void marriages as
provided in Article 50 in relation to Article 43
and 44 as well as Article 51, 53 and 54 of the
Family Code. On the contrary, the property
regime governing voidable marriages is
generally conjugal partnership and the
children conceived before its annulment are
legitimate.
DECISION
YNARES-SANTIAGO, J p:
May the heirs of a deceased person file a
petition for the declaration of nullity of his
marriage after his death?
Pepito Nial was married to Teodulfa Bellones
on September 26, 1974. Out of their marriage
were born herein petitioners. Teodulfa was
shot by Pepito resulting in her death on April
24, 1985. One year and 8 months thereafter
or on December 11, 1986, Pepito and
respondent Norma Badayog got married
without any marriage license. In lieu thereof,
Pepito and Norma executed an affidavit dated
December 11, 1986 stating that they had lived
together as husband and wife for at least five
years and were thus exempt from securing a
marriage license. On February 19, 1997,
Pepito died in a car accident. After their
father's death, petitioners filed a petition for
declaration of nullity of the marriage of Pepito
to Norma alleging that the said marriage was
void for lack of a marriage license. The case
was filed under the assumption that the
validity or invalidity of the second marriage
would affect petitioner's successional rights.
Norma filed a motion to dismiss on the ground
that petitioners have no cause of action since
they are not among the persons who could file
an action for "annulment of marriage" under
Article 47 of the Family Code. LibLex
Judge Ferdinand J. Marcos of the Regional
Trial Court of Toledo City, Cebu, Branch 59,
dismissed the petition after finding that the
Family Code is "rather silent, obscure,
insufficient" to resolve the following issues:
(1) Whether or not plaintiffs have a cause
of action against defendant in asking for the
declaration of the nullity of marriage of their
deceased father, Pepito G. Nial, with her
specially so when at the time of the filing of
this instant suit, their father Pepito G. Nial is
already dead;
(2) Whether or not the second marriage of
plaintiffs' deceased father with defendant is
null and void ab initio;
(3) Whether or not plaintiffs are estopped
from assailing the validity of the second
marriage after it was dissolved due to their
father's death. 1
Thus, the lower court ruled that petitioners
should have filed the action to declare null
and void their father's marriage to respondent
before his death, applying by analogy Article
47 of the Family Code which enumerates the
time and the persons who could initiate an
action for annulment of marriage. 2 Hence,
this petition for review with this Court
grounded on a pure question of law.
This petition was originally dismissed for non-
compliance with Section 11, Rule 13 of the
1997 Rules of Civil Procedure, and because
"the verification failed to state the basis of
petitioner's averment that the allegations in
the petition are 'true and correct.'" It was thus
treated as an unsigned pleading which
produces no legal effect under Section 3, Rule
7, of the 1997 Rules. 3 However, upon motion
of petitioners, this Court reconsidered the
dismissal and reinstated the petition for
review. 4
The two marriages involved herein having
been solemnized prior to the effectivity of the
Family Code (FC), the applicable law to
determine their validity is the Civil Code which
was the law in effect at the time of their
celebration. 5 A valid marriage license is a
requisite of marriage under Article 53 of the
Civil Code, 6 the absence of which renders the
marriage void ab initio pursuant to Article
80(3) 7 in relation to Article 58. 8 The
requirement and issuance of marriage license
is the State's demonstration of its involvement
and participation in every marriage, in the
maintenance of which the general public is
interested. 9 This interest proceeds from the
constitutional mandate that the State
recognizes the sanctity of family life and of
affording protection to the family as a basic
"autonomous social institution." 10
Specifically, the Constitution considers
marriage as an "inviolable social institution,"
and is the foundation of family life which shall
be protected by the State. 11 This is why the
Family Code considers marriage as "a special
contract of permanent union" 12 and case law
considers it not just an adventure but a
lifetime commitment." 13
However there are several instances
recognized by the Civil Code wherein a
marriage license is dispensed with, one of
which is that provided in Article 76, 14
referring to the marriage of a man and a
woman who have lived together and
exclusively with each other as husband and
wife for a continuous and unbroken period of
at least five years before the marriage. The
rationale why no license is required in such
case is to avoid exposing the parties to
humiliation, shame and embarrassment
concomitant with the scandalous cohabitation
of persons outside a valid marriage due to the
publication of every applicant's name for a
marriage license. The publicity attending the
marriage license may discourage such persons
from legitimizing their status. 15 To preserve
peace in the family, avoid the peeping and
suspicious eye of public exposure and contain
the source of gossip arising from the
publication of their names, the law deemed it
wise to preserve their privacy and exempt
them from that requirement. cda
There is no dispute that the marriage of
petitioners' father to respondent Norma was
celebrated without any marriage license. In
lieu thereof, they executed an affidavit stating
that "they have attained the age of majority,
and, being unmarried, have lived together as
husband and wife for at least five years, and
that we now desire to marry each other." 16
The only issue that needs to be resolved
pertains to what nature of cohabitation is
contemplated under Article 76 of the Civil
Code to warrant the counting of the five year
period in order to exempt the future spouses
from securing a marriage license. Should it be
a cohabitation wherein both parties are
capacitated to marry each other during the
entire five-year continuous period or should it
be a cohabitation wherein both parties have
lived together and exclusively with each other
as husband and wife during the entire five-
year continuous period regardless of whether
there is a legal impediment to their being
lawfully married, which impediment may have
either disappeared or intervened sometime
during the cohabitation period?
Working on the assumption that Pepito and
Norma have lived together as husband and
wife for five years without the benefit of
marriage, that five-year period should be
computed on the basis of a cohabitation as
"husband and wife" where the only missing
factor is the special contract of marriage to
validate the union. In other words, the five-
year common-law cohabitation period, which
is counted back from the date of celebration of
marriage, should be a period of legal union
had it not been for the absence of the
marriage. This 5-year period should be the
years immediately before the day of the
marriage and it should be a period of
cohabitation characterized by exclusivity
meaning no third party was involved at any
time within the 5 years and continuity that
is unbroken. Otherwise, if that continuous 5-
year cohabitation is computed without any
distinction as to whether the parties were
capacitated to marry each other during the
entire five years, then the law would be
sanctioning immorality and encouraging
parties to have common law relationships and
placing them on the same footing with those
who lived faithfully with their spouse.
Marriage being a special relationship must be
respected as such and its requirements must
be strictly observed. The presumption that a
man and a woman deporting themselves as
husband and wife is based on the
approximation of the requirements of the law.
The parties should not be afforded any excuse
to not comply with every single requirement
and later use the same missing element as a
pre-conceived escape ground to nullify their
marriage. There should be no exemption from
securing a marriage license unless the
circumstances clearly fall within the ambit of
the exception. It should be noted that a
license is required in order to notify the public
that two persons are about to be united in
matrimony and that anyone who is aware or
has knowledge of any impediment to the
union of the two shall make it known to the
local civil registrar. 17 The Civil Code
provides:
Article 63: ". . . . This notice shall request all
persons having knowledge of any impediment
to the marriage to advice the local civil
registrar thereof. . . . ."
Article 64: "Upon being advised of any alleged
impediment to the marriage, the local civil
registrar shall forthwith make an
investigation, examining persons under oath. .
. ."
This is reiterated in the Family Code thus:
Article 17 provides in part: ". . . . This notice
shall request all persons having knowledge of
any impediment to the marriage to advise the
local civil registrar thereof. . . . ."
Article 18 reads in part: ". . . . In case of any
impediment known to the local civil registrar
or brought to his attention, he shall note down
the particulars thereof and his findings
thereon in the application for a marriage
license. . . . ." cdrep
This is the same reason why our civil laws,
past or present, absolutely prohibited the
concurrence of multiple marriages by the
same person during the same period. Thus,
any marriage subsequently contracted during
the lifetime of the first spouse shall be illegal
and void, 18 subject only to the exception in
cases of absence or where the prior marriage
was dissolved or annulled. The Revised Penal
Code complements the civil law in that the
contracting of two or more marriages and the
having of extramarital affairs are considered
felonies, i.e., bigamy and concubinage and
adultery. 19 The law sanctions monogamy.
In this case, at the time of Pepito and
respondent's marriage, it cannot be said that
they have lived with each other as husband
and wife for at least five years prior to their
wedding day. From the time Pepito's first
marriage was dissolved to the time of his
marriage with respondent, only about twenty
months had elapsed. Even assuming that
Pepito and his first wife had separated in fact,
and thereafter both Pepito and respondent
had started living with each other that has
already lasted for five years, the fact remains
that their five-year period cohabitation was
not the cohabitation contemplated by law. It
should be in the nature of a perfect union that
is valid under the law but rendered imperfect
only by the absence of the marriage contract.
Pepito had a subsisting marriage at the time
when he started cohabiting with respondent.
It is immaterial that when they lived with each
other, Pepito had already been separated in
fact from his lawful spouse. The subsistence
of the marriage even where there was actual
severance of the filial companionship between
the spouses cannot make any cohabitation by
either spouse with any third party as being
one as "husband and wife."
Having determined that the second marriage
involved in this case is not covered by the
exception to the requirement of a marriage
license, it is void ab initio because of the
absence of such element.
The next issue to be resolved is: do petitioners
have the personality to file a petition to
declare their father's marriage void after his
death?
Contrary to respondent judge's ruling, Article
47 of the Family Code 20 cannot be applied
even by analogy to petitions for declaration of
nullity of marriage. The second ground for
annulment of marriage relied upon by the trial
court, which allows "the sane spouse" to file
an annulment suit "at any time before the
death of either party" is inapplicable. Article
47 pertains to the grounds, periods and
persons who can file an annulment suit, not a
suit for declaration of nullity of marriage. The
Code is silent as to who can file a petition to
declare the nullity of a marriage. Voidable and
void marriages are not identical. A marriage
that is annullable is valid until otherwise
declared by the court; whereas a marriage
that is void ab initio is considered as having
never to have taken place 21 and cannot be
the source of rights. The first can be generally
ratified or confirmed by free cohabitation or
prescription while the other can never be
ratified. A voidable marriage cannot be
assailed collaterally except in a direct
proceeding while a void marriage can be
attacked collaterally. Consequently, void
marriages can be questioned even after the
death of either party but voidable marriages
can be assailed only during the lifetime of the
parties and not after death of either, in which
case the parties and their offspring will be left
as if the marriage had been perfectly valid. 22
That is why the action or defense for nullity is
imprescriptible, unlike voidable marriages
where the action prescribes. Only the parties
to a voidable marriage can assail it but any
proper interested party may attack a void
marriage. Void marriages have no legal effects
except those declared by law concerning the
properties of the alleged spouses, regarding
co-ownership or ownership through actual
joint contribution, 23 and its effect on the
children born to such void marriages as
provided in Article 50 in relation to Article 43
and 44 as well as Article 51, 53 and 54 of the
Family Code. On the contrary, the property
regime governing voidable marriages is
generally conjugal partnership and the
children conceived before its annulment are
legitimate.
Contrary to the trial court's ruling, the death
of petitioner's father extinguished the alleged
marital bond between him and respondent.
The conclusion is erroneous and proceeds
from a wrong premise that there was a
marriage bond that was dissolved between the
two. It should be noted that their marriage
was void hence it is deemed as if it never
existed at all and the death of either directly instituted to question the same so
extinguished nothing. cdasia long as it is essential to the determination of
the case. This is without prejudice to any
Jurisprudence under the Civil Code states issue that may arise in the case. When such
that no judicial decree is necessary in order to need arises, a final judgment of declaration of
establish the nullity of a marriage. 24 "A void nullity is necessary even if the purpose is
marriage does not require a judicial decree to other than to remarry. The clause "on the
restore the parties to their original rights or to basis of a final judgment declaring such
make the marriage void but though no previous marriage void" in Article 40 of the
sentence of avoidance be absolutely Family Code connotes that such final
necessary, yet as well for the sake of good judgment need not be obtained only for
order of society as for the peace of mind of all purpose of remarriage.
concerned, it is expedient that the nullity of
the marriage should be ascertained and WHEREFORE, the petition is GRANTED. The
declared by the decree of a court of competent assailed Order of the Regional Trial Court,
jurisdiction." 25 "Under ordinary Toledo City, Cebu, Branch 59, dismissing Civil
circumstances, the effect of a void marriage, Case No. T-639, is REVERSED and SET
so far as concerns the conferring of legal ASIDE. The said case is ordered REINSTATED.
rights upon the parties, is as though no cdtai
marriage had ever taken place. And therefore,
being good for no legal purpose, its invalidity SO ORDERED.
can be maintained in any proceeding in which Davide, Jr., C.J., Puno and Kapunan, JJ.,
the fact of marriage may be material, either concur.
direct or collateral, in any civil court between
any parties at any time, whether before or Pardo, J., is on official business abroad.
after the death of either or both the husband
and the wife, and upon mere proof of the facts
rendering such marriage void, it will be
disregarded or treated as non-existent by the
courts." It is not like a voidable marriage
which cannot be collaterally attacked except
in direct proceeding instituted during the
lifetime of the parties so that on the death of
either, the marriage cannot be impeached,
and is made good ab initio. 26 But Article 40
of the Family Code expressly provides that
there must be a judicial declaration of the
nullity of a previous marriage, though void,
before a party can enter into a second
marriage 27 and such absolute nullity can be
based only on a final judgment to that effect.
28 For the same reason, the law makes either
the action or defense for the declaration of
absolute nullity of marriage imprescriptible.
29 Corollarily, if the death of either party
would extinguish the cause of action or the
ground for defense, then the same cannot be
considered imprescriptible.

However, other than for purposes of

remarriage, no judicial action is necessary to
declare a marriage an absolute nullity. For
other purposes, such as but not limited to
determination of heirship, legitimacy or
illegitimacy of a child, settlement of estate,
dissolution of property regime, or a criminal
case for that matter, the court may pass upon
the validity of marriage even in a suit not
THIRD DIVISION
[G.R. No. 175581. March 28, 2008.]
REPUBLIC OF THE PHILIPPINES,
petitioner, vs. JOSE A. DAYOT, respondent.
[G.R. No. 179474. March 28, 2008.]
FELISA TECSON-DAYOT, petitioner, vs.
JOSE A. DAYOT, respondent.
DECISION
CHICO-NAZARIO, J p:
Before us are two consolidated petitions. G.R.
No. 175581 and G.R. No. 179474 are Petitions
for Review under Rule 45 of the Rules of Court
filed by the Republic of the Philippines and
Felisa Tecson-Dayot (Felisa), respectively, both
challenging the Amended Decision 1 of the
Court of Appeals, dated 7 November 2006, in
CA-G.R. CV No. 68759, which declared the
marriage between Jose Dayot (Jose) and Felisa
void ab initio. CacHES
The records disclose that on 24 November
1986, Jose and Felisa were married at the
Pasay City Hall. The marriage was solemnized
by Rev. Tomas V. Atienza. 2 In lieu of a
marriage license, Jose and Felisa executed a
sworn affidavit, 3 also dated 24 November
1986, attesting that both of them had attained
the age of maturity, and that being unmarried,
they had lived together as husband and wife
for at least five years.
On 7 July 1993, Jose filed a Complaint 4 for
Annulment and/or Declaration of Nullity of
Marriage with the Regional Trial Court (RTC),
Bian, Laguna, Branch 25. He contended that
his marriage with Felisa was a sham, as no
marriage ceremony was celebrated between
the parties; that he did not execute the sworn
affidavit stating that he and Felisa had lived
as husband and wife for at least five years;
and that his consent to the marriage was
secured through fraud.
In his Complaint, Jose gave his version of the
events which led to his filing of the same.
According to Jose, he was introduced to Felisa
in 1986. Immediately thereafter, he came to
live as a boarder in Felisa's house, the latter
being his landlady. Some three weeks later,
Felisa requested him to accompany her to the
Pasay City Hall, ostensibly so she could claim
a package sent to her by her brother from
Saudi Arabia. At the Pasay City Hall, upon a
pre-arranged signal from Felisa, a man
bearing three folded pieces of paper
approached them. They were told that Jose
needed to sign the papers so that the package
could be released to Felisa. He initially refused
to do so. However, Felisa cajoled him, and told
him that his refusal could get both of them
killed by her brother who had learned about
their relationship. Reluctantly, he signed the
pieces of paper, and gave them to the man
who immediately left. It was in February 1987
when he discovered that he had contracted
marriage with Felisa. He alleged that he saw a
piece of paper lying on top of the table at the
sala of Felisa's house. When he perused the
same, he discovered that it was a copy of his
marriage contract with Felisa. When he
confronted Felisa, the latter feigned ignorance.
EAIaHD
In opposing the Complaint, Felisa denied
Jose's allegations and defended the validity of
their marriage. She declared that they had
maintained their relationship as man and wife
absent the legality of marriage in the early
part of 1980, but that she had deferred
contracting marriage with him on account of
their age difference. 5 In her pre-trial brief,
Felisa expounded that while her marriage to
Jose was subsisting, the latter contracted
marriage with a certain Rufina Pascual
(Rufina) on 31 August 1990. On 3 June 1993,
Felisa filed an action for bigamy against Jose.
Subsequently, she filed an administrative
complaint against Jose with the Office of the
Ombudsman, since Jose and Rufina were
both employees of the National Statistics and
Coordinating Board. 6 The Ombudsman found
Jose administratively liable for disgraceful and
immoral conduct, and meted out to him the
penalty of suspension from service for one
year without emolument. 7
On 26 July 2000, the RTC rendered a
Decision 8 dismissing the Complaint. It
disposed:
WHEREFORE, after a careful evaluation and
analysis of the evidence presented by both
parties, this Court finds and so holds that the
[C]omplaint does not deserve a favorable
consideration. Accordingly, the above-entitled
case is hereby ordered DISMISSED with costs
against [Jose]. 9 caIETS
The RTC ruled that from the testimonies and
evidence presented, the marriage celebrated
between Jose and Felisa on 24 November
1986 was valid. It dismissed Jose's version of
the story as implausible, and rationalized
that:
Any person in his right frame of mind would
easily suspect any attempt to make him or her
sign a blank sheet of paper. [Jose] could have
already detected that something was amiss,
unusual, as they were at Pasay City Hall to get
a package for [Felisa] but it [was] he who was
made to sign the pieces of paper for the
release of the said package. Another indirect
suggestion that could have put him on guard
was the fact that, by his own admission,
[Felisa] told him that her brother would kill
them if he will not sign the papers. And yet it
took him, more or less, three months to
"discover" that the pieces of paper that he
signed was [sic] purportedly the marriage
contract. [Jose] does not seem to be that
ignorant, as perceived by this Court, to be
"taken in for a ride" by [Felisa.]
[Jose's] claim that he did not consent to the
marriage was belied by the fact that he
acknowledged Felisa Tecson as his wife when
he wrote [Felisa's] name in the duly notarized
statement of assets and liabilities he filled up
on May 12, 1988, one year after he discovered
the marriage contract he is now claiming to be
sham and false. [Jose], again, in his company
I.D., wrote the name of [Felisa] as the person
to be contacted in case of emergency. This
Court does not believe that the only reason
why her name was written in his company I.D.
was because he was residing there then. This
is just but a lame excuse because if he really
considers her not his lawfully wedded wife, he
would have written instead the name of his
sister.
When [Jose's] sister was put into the witness
stand, under oath, she testified that she
signed her name voluntarily as a witness to
the marriage in the marriage certificate
(T.S.N., page 25, November 29, 1996) and she
further testified that the signature appearing
over the name of Jose Dayot was the signature
of his [sic] brother that he voluntarily affixed
in the marriage contract (page 26 of T.S.N.
taken on November 29, 1996), and when she
was asked by the Honorable Court if indeed
she believed that Felisa Tecson was really
chosen by her brother she answered yes. The
testimony of his sister all the more belied his
claim that his consent was procured through
fraud. 10
Moreover, on the matter of fraud, the RTC
ruled that Jose's action had prescribed. It
cited Article 87 11 of the New Civil Code which
requires that the action for annulment of
marriage must be commenced by the injured
party within four years after the discovery of
the fraud. Thus: AECIaD
That granting even for the sake of argument
that his consent was obtained by [Felisa]
through fraud, trickery and machinations, he
could have filed an annulment or declaration
of nullity of marriage at the earliest possible
opportunity, the time when he discovered the
alleged sham and false marriage contract.
[Jose] did not take any action to void the
marriage at the earliest instance. . . . . 12
Undeterred, Jose filed an appeal from the
foregoing RTC Decision to the Court of
Appeals. In a Decision dated 11 August 2005,
the Court of Appeals found the appeal to be
without merit. The dispositive portion of the
appellate court's Decision reads:
WHEREFORE, the Decision appealed from is
AFFIRMED. 13
The Court of Appeals applied the Civil Code to
the marriage between Jose and Felisa as it
was solemnized prior to the effectivity of the
Family Code. The appellate court observed
that the circumstances constituting fraud as a
ground for annulment of marriage under
Article 86 14 of the Civil Code did not exist in
the marriage between the parties. Further, it
ruled that the action for annulment of
marriage on the ground of fraud was filed
beyond the prescriptive period provided by
law. The Court of Appeals struck down Jose's
appeal in the following manner:
Nonetheless, even if we consider that fraud or
intimidation was employed on Jose in giving
his consent to the marriage, the action for the
annulment thereof had already prescribed.
Article 87 (4) and (5) of the Civil Code provides
that the action for annulment of marriage on
the ground that the consent of a party was
obtained by fraud, force or intimidation must
be commenced by said party within four (4)
years after the discovery of the fraud and
within four (4) years from the time the force or
intimidation ceased. Inasmuch as the fraud
was allegedly discovered by Jose in February,
1987 then he had only until February, 1991
within which to file an action for annulment of
marriage. However, it was only on July 7,
1993 that Jose filed the complaint for
annulment of his marriage to Felisa. 15
TaEIcS
Likewise, the Court of Appeals did not accept
Jose's assertion that his marriage to Felisa
was void ab initio for lack of a marriage
license. It ruled that the marriage was
solemnized under Article 76 16 of the Civil
Code as one of exceptional character, with the
parties executing an affidavit of marriage
between man and woman who have lived
together as husband and wife for at least five
years. The Court of Appeals concluded that
the falsity in the affidavit to the effect that
Jose and Felisa had lived together as husband
and wife for the period required by Article 76
did not affect the validity of the marriage,
seeing that the solemnizing officer was misled
by the statements contained therein. In this
manner, the Court of Appeals gave credence to
the good-faith reliance of the solemnizing
officer over the falsity of the affidavit. The
appellate court further noted that on the
dorsal side of said affidavit of marriage, Rev.
Tomas V. Atienza, the solemnizing officer,
stated that he took steps to ascertain the ages
and other qualifications of the contracting
parties and found no legal impediment to their
marriage. Finally, the Court of Appeals
dismissed Jose's argument that neither he nor
Felisa was a member of the sect to which Rev.
Tomas V. Atienza belonged. According to the
Court of Appeals, Article 56 17 of the Civil
Code did not require that either one of the
contracting parties to the marriage must
belong to the solemnizing officer's church or
religious sect. The prescription was
established only in Article 7 18 of the Family
Code which does not govern the parties'
marriage.
Differing with the ruling of the Court of
Appeals, Jose filed a Motion for
Reconsideration thereof. His central
opposition was that the requisites for the
proper application of the exemption from a
marriage license under Article 76 of the Civil
Code were not fully attendant in the case at
bar. In particular, Jose cited the legal
condition that the man and the woman must
have been living together as husband and wife
for at least five years before the marriage.
Essentially, he maintained that the affidavit of
marital cohabitation executed by him and
Felisa was false.
The Court of Appeals granted Jose's Motion
for Reconsideration and reversed itself.
Accordingly, it rendered an Amended
Decision, dated 7 November 2006, the fallo of
which reads:
WHEREFORE, the Decision dated August 11,
2005 is RECALLED and SET ASIDE and
another one entered declaring the marriage
between Jose A. Dayot and Felisa C. Tecson
void ab initio. AICHaS
Furnish a copy of this Amended Decision to
the Local Civil Registrar of Pasay City. 19
In its Amended Decision, the Court of Appeals
relied on the ruling of this Court in Nial v.
Bayadog, 20 and reasoned that:
In Nial v. Bayadog, where the contracting
parties to a marriage solemnized without a
marriage license on the basis of their affidavit
that they had attained the age of majority,
that being unmarried, they had lived together
for at least five (5) years and that they desired
to marry each other, the Supreme Court ruled
as follows:
". . . In other words, the five-year common-law
cohabitation period, which is counted back
from the date of celebration of marriage,
should be a period of legal union had it not
been for the absence of the marriage. This 5-
year period should be the years immediately
before the day of the marriage and it should
be a period of cohabitation characterized by
exclusivity meaning no third party was
involved at any time within the 5 years and
continuity that is unbroken. Otherwise, if
that continuous 5-year cohabitation is
computed without any distinction as to
whether the parties were capacitated to marry
each other during the entire five years, then
the law would be sanctioning immorality and
encouraging parties to have common law
relationships and placing them on the same
footing with those who lived faithfully with
their spouse. Marriage being a special
relationship must be respected as such and
its requirements must be strictly observed.
The presumption that a man and a woman
deporting themselves as husband and wife is
based on the approximation of the
requirements of the law. The parties should
not be afforded any excuse to not comply with
every single requirement and later use the
same missing element as a pre-conceived
escape ground to nullify their marriage. There
should be no exemption from securing a
marriage license unless the circumstances
clearly fall within the ambit of the exception. It
should be noted that a license is required in
order to notify the public that two persons are
about to be united in matrimony and that
anyone who is aware or has knowledge of any
impediment to the union of the two shall make
it known to the local civil registrar.
Article 80(3) of the Civil Code provides that a
marriage solemnized without a marriage
license, save marriages of exceptional
character, shall be void from the beginning.
Inasmuch as the marriage between Jose and
Felisa is not covered by the exception to the
requirement of a marriage license, it is,
therefore, void ab initio because of the
absence of a marriage license. 21 AaHTIE
Felisa sought reconsideration of the Amended
Decision, but to no avail. The appellate court
rendered a Resolution 22 dated 10 May 2007,
denying Felisa's motion.
Meanwhile, the Republic of the Philippines,
through the Office of the Solicitor General
(OSG), filed a Petition for Review before this
Court in G.R. No. 175581, praying that the
Court of Appeals' Amended Decision dated 7
November 2006 be reversed and set aside for
lack of merit, and that the marriage between
Jose and Felisa be declared valid and
subsisting. Felisa filed a separate Petition for
Review, docketed as G.R. No. 179474,
similarly assailing the appellate court's
Amended Decision. On 1 August 2007, this
Court resolved to consolidate the two Petitions
in the interest of uniformity of the Court
rulings in similar cases brought before it for
resolution. 23
The Republic of the Philippines propounds the
following arguments for the allowance of its
Petition, to wit:
I investigate as to whether the said affidavit was
RESPONDENT FAILED TO OVERTHROW THE
PRESUMPTION OF THE VALIDITY OF HIS
MARRIAGE TO FELISA.
II
RESPONDENT DID NOT COME TO THE
COURT WITH CLEAN HANDS AND SHOULD
NOT BE ALLOWED TO PROFIT FROM HIS
OWN FRAUDULENT CONDUCT.
III
RESPONDENT IS ESTOPPED FROM
ASSAILING THE LEGALITY OF HIS
MARRIAGE FOR LACK OF MARRIAGE
LICEN[S]E. 24
Correlative to the above, Felisa submits that
the Court of Appeals misapplied Nial. 25 She
differentiates the case at bar from Nial by
reasoning that one of the parties therein had
an existing prior marriage, a circumstance
which does not obtain in her cohabitation with
Jose. Finally, Felisa adduces that Jose only
sought the annulment of their marriage after a
criminal case for bigamy and an
administrative case had been filed against him
in order to avoid liability. Felisa surmises that
the declaration of nullity of their marriage
would exonerate Jose from any liability.
cSIADH
For our resolution is the validity of the
marriage between Jose and Felisa. To reach a
considered ruling on the issue, we shall jointly
tackle the related arguments vented by
petitioners Republic of the Philippines and
Felisa.
The Republic of the Philippines asserts that
several circumstances give rise to the
presumption that a valid marriage exists
between Jose and Felisa. For her part, Felisa
echoes the claim that any doubt should be
resolved in favor of the validity of the marriage
by citing this Court's ruling in Hernandez v.
Court of Appeals. 26 To buttress its assertion,
the Republic points to the affidavit executed
by Jose and Felisa, dated 24 November 1986,
attesting that they have lived together as
husband and wife for at least five years, which
they used in lieu of a marriage license. It is
the Republic's position that the falsity of the
statements in the affidavit does not affect the
validity of the marriage, as the essential and
formal requisites were complied with; and the
solemnizing officer was not required to
legally obtained. The Republic opines that as a
marriage under a license is not invalidated by
the fact that the license was wrongfully
obtained, so must a marriage not be
invalidated by the fact that the parties
incorporated a fabricated statement in their
affidavit that they cohabited as husband and
wife for at least five years. In addition, the
Republic posits that the parties' marriage
contract states that their marriage was
solemnized under Article 76 of the Civil Code.
It also bears the signature of the parties and
their witnesses, and must be considered a
primary evidence of marriage. To further
fortify its Petition, the Republic adduces the
following documents: (1) Jose's notarized
Statement of Assets and Liabilities, dated 12
May 1988 wherein he wrote Felisa's name as
his wife; (2) Certification dated 25 July 1993
issued by the Barangay Chairman 192, Zone
ZZ, District 24 of Pasay City, attesting that
Jose and Felisa had lived together as husband
and wife in said barangay; and (3) Jose's
company ID card, dated 2 May 1988,
indicating Felisa's name as his wife.
The first assignment of error compels this
Court to rule on the issue of the effect of a
false affidavit under Article 76 of the Civil
Code. A survey of the prevailing rules is in
order.
It is beyond dispute that the marriage of Jose
and Felisa was celebrated on 24 November
1986, prior to the effectivity of the Family
Code. Accordingly, the Civil Code governs their
union. Article 53 of the Civil Code spells out
the essential requisites of marriage as a
contract: cTIESa
ART. 53. No marriage shall be solemnized
unless all these requisites are complied with:
(1) Legal capacity of the contracting
parties;
(2) Their consent, freely given;
(3) Authority of the person performing the
marriage; and
(4) A marriage license, except in a marriage
of exceptional character. (Emphasis ours.)
Article 58 27 makes explicit that no marriage
shall be solemnized without a license first
being issued by the local civil registrar of the
municipality where either contracting party
habitually resides, save marriages of an
exceptional character authorized by the Civil
Code, but not those under Article 75. 28
Article 80 (3) 29 of the Civil Code makes it
clear that a marriage performed without the
corresponding marriage license is void, this
being nothing more than the legitimate
consequence flowing from the fact that the
license is the essence of the marriage contract.
30 This is in stark contrast to the old Marriage
Law, 31 whereby the absence of a marriage
license did not make the marriage void. The
rationale for the compulsory character of a
marriage license under the Civil Code is that it
is the authority granted by the State to the
contracting parties, after the proper
government official has inquired into their
capacity to contract marriage. 32
Under the Civil Code, marriages of exceptional
character are covered by Chapter 2, Title III,
comprising Articles 72 to 79. To wit, these
marriages are: (1) marriages in articulo mortis
or at the point of death during peace or war,
(2) marriages in remote places, (2) consular
marriages, 33 (3) ratification of marital
cohabitation, (4) religious ratification of a civil
marriage, (5) Mohammedan or pagan
marriages, and (6) mixed marriages. 34
The instant case pertains to a ratification of
marital cohabitation under Article 76 of the
Civil Code, which provides:
ART. 76. No marriage license shall be
necessary when a man and a woman who
have attained the age of majority and who,
being unmarried, have lived together as
husband and wife for at least five years, desire
to marry each other. The contracting parties
shall state the foregoing facts in an affidavit
before any person authorized by law to
administer oaths. The official, priest or
minister who solemnized the marriage shall
also state in an affidavit that he took steps to
ascertain the ages and other qualifications of
the contracting parties and that he found no
legal impediment to the marriage. CHDAEc
The reason for the law, 35 as espoused by the
Code Commission, is that the publicity
attending a marriage license may discourage
such persons who have lived in a state of
cohabitation from legalizing their status. 36
It is not contested herein that the marriage of
Jose and Felisa was performed without a
marriage license. In lieu thereof, they executed
an affidavit declaring that "they have attained
the age of maturity; that being unmarried,
they have lived together as husband and wife
for at least five years; and that because of this
union, they desire to marry each other." 37
One of the central issues in the Petition at bar
is thus: whether the falsity of an affidavit of
marital cohabitation, where the parties have
in truth fallen short of the minimum five-year
requirement, effectively renders the marriage
void ab initio for lack of a marriage license.
We answer in the affirmative.
Marriages of exceptional character are,
doubtless, the exceptions to the rule on the
indispensability of the formal requisite of a
marriage license. Under the rules of statutory
construction, exceptions, as a general rule,
should be strictly 38 but reasonably
construed. 39 They extend only so far as their
language fairly warrants, and all doubts
should be resolved in favor of the general
provisions rather than the exception. 40
Where a general rule is established by statute
with exceptions, the court will not curtail the
former or add to the latter by implication. 41
For the exception in Article 76 to apply, it is a
sine qua non thereto that the man and the
woman must have attained the age of
majority, and that, being unmarried, they
have lived together as husband and wife for at
least five years.
A strict but reasonable construction of Article
76 leaves us with no other expediency but to
read the law as it is plainly written. The
exception of a marriage license under Article
76 applies only to those who have lived
together as husband and wife for at least five
years and desire to marry each other. The
Civil Code, in no ambiguous terms, places a
minimum period requirement of five years of
cohabitation. No other reading of the law can
be had, since the language of Article 76 is
precise. The minimum requisite of five years of
cohabitation is an indispensability carved in
the language of the law. For a marriage
celebrated under Article 76 to be valid, this
material fact cannot be dispensed with. It is
embodied in the law not as a directory
requirement, but as one that partakes of a
mandatory character. It is worthy to mention
that Article 76 also prescribes that the
contracting parties shall state the requisite
facts 42 in an affidavit before any person
authorized by law to administer oaths; and
that the official, priest or minister who
solemnized the marriage shall also state in an
affidavit that he took steps to ascertain the
ages and other qualifications of the
contracting parties and that he found no legal
impediment to the marriage. TaISDA
It is indubitably established that Jose and
Felisa have not lived together for five years at
the time they executed their sworn affidavit
and contracted marriage. The Republic
admitted that Jose and Felisa started living
together only in June 1986, or barely five
months before the celebration of their
marriage. 43 The Court of Appeals also noted
Felisa's testimony that Jose was introduced to
her by her neighbor, Teresita Perwel,
sometime in February or March 1986 after the
EDSA Revolution. 44 The appellate court also
cited Felisa's own testimony that it was only in
June 1986 when Jose commenced to live in
her house. 45
Moreover, it is noteworthy that the question as
to whether they satisfied the minimum five-
year requisite is factual in nature. A question
of fact arises when there is a need to decide on
the truth or falsehood of the alleged facts. 46
Under Rule 45, factual findings are ordinarily
not subject to this Court's review. 47 It is
already well-settled that:
The general rule is that the findings of facts of
the Court of Appeals are binding on this
Court. A recognized exception to this rule is
when the Court of Appeals and the trial court,
or in this case the administrative body, make
contradictory findings. However, the exception
does not apply in every instance that the
Court of Appeals and the trial court or
administrative body disagree. The factual
findings of the Court of Appeals remain
conclusive on this Court if such findings are
supported by the record or based on
substantial evidence. 48
Therefore, the falsity of the affidavit dated 24
November 1986, executed by Jose and Felisa
to exempt them from the requirement of a
marriage license, is beyond question.
We cannot accept the insistence of the
Republic that the falsity of the statements in
the parties' affidavit will not affect the validity
of marriage, since all the essential and formal
requisites were complied with. The argument
deserves scant merit. Patently, it cannot be
denied that the marriage between Jose and
Felisa was celebrated without the formal
requisite of a marriage license. Neither did
Jose and Felisa meet the explicit legal
requirement in Article 76, that they should
have lived together as husband and wife for at
least five years, so as to be excepted from the
requirement of a marriage license. AIDTHC
Anent petitioners' reliance on the presumption
of marriage, this Court holds that the same
finds no applicability to the case at bar.
Essentially, when we speak of a presumption
of marriage, it is with reference to the prima
facie presumption that a man and a woman
deporting themselves as husband and wife
have entered into a lawful contract of
marriage. 49 Restated more explicitly, persons
dwelling together in apparent matrimony are
presumed, in the absence of any counter-
presumption or evidence special to the case,
to be in fact married. 50 The present case
does not involve an apparent marriage to
which the presumption still needs to be
applied. There is no question that Jose and
Felisa actually entered into a contract of
marriage on 24 November 1986, hence,
compelling Jose to institute a Complaint for
Annulment and/or Declaration of Nullity of
Marriage, which spawned the instant
consolidated Petitions.
In the same vein, the declaration of the Civil
Code 51 that every intendment of law or fact
leans towards the validity of marriage will not
salvage the parties' marriage, and extricate
them from the effect of a violation of the law.
The marriage of Jose and Felisa was entered
into without the requisite marriage license or
compliance with the stringent requirements of
a marriage under exceptional circumstance.
The solemnization of a marriage without prior
license is a clear violation of the law and
would lead or could be used, at least, for the
perpetration of fraud against innocent and
unwary parties, which was one of the evils
that the law sought to prevent by making a
prior license a prerequisite for a valid
marriage. 52 The protection of marriage as a
sacred institution requires not just the
defense of a true and genuine union but the
exposure of an invalid one as well. 53 To
permit a false affidavit to take the place of a
marriage license is to allow an abject
circumvention of the law. If this Court is to
protect the fabric of the institution of
marriage, we must be wary of deceptive
schemes that violate the legal measures set
forth in our laws.
Similarly, we are not impressed by the
ratiocination of the Republic that as a
marriage under a license is not invalidated by
the fact that the license was wrongfully
obtained, so must a marriage not be
invalidated by a fabricated statement that the
parties have cohabited for at least five years as
required by law. The contrast is flagrant. The
former is with reference to an irregularity of
the marriage license, and not to the absence of
one. Here, there is no marriage license at all.
Furthermore, the falsity of the allegation in
the sworn affidavit relating to the period of
Jose and Felisa's cohabitation, which would
have qualified their marriage as an exception
to the requirement for a marriage license,
cannot be a mere irregularity, for it refers to a
quintessential fact that the law precisely
required to be deposed and attested to by the
parties under oath. If the essential matter in
the sworn affidavit is a lie, then it is but a
mere scrap of paper, without force and effect.
Hence, it is as if there was no affidavit at all.
caTIDE
In its second assignment of error, the Republic
puts forth the argument that based on equity,
Jose should be denied relief because he
perpetrated the fabrication, and cannot
thereby profit from his wrongdoing. This is a
misplaced invocation. It must be stated that
equity finds no room for application where
there is a law. 54 There is a law on the
ratification of marital cohabitation, which is
set in precise terms under Article 76 of the
Civil Code. Nonetheless, the authorities are
consistent that the declaration of nullity of the
parties' marriage is without prejudice to their
criminal liability. 55
The Republic further avers in its third
assignment of error that Jose is deemed
estopped from assailing the legality of his
marriage for lack of a marriage license. It is
claimed that Jose and Felisa had lived
together from 1986 to 1990, notwithstanding
Jose's subsequent marriage to Rufina Pascual
on 31 August 1990, and that it took Jose
seven years before he sought the declaration
of nullity; hence, estoppel had set in.
This is erroneous. An action for nullity of
marriage is imprescriptible. 56 Jose and
Felisa's marriage was celebrated sans a
marriage license. No other conclusion can be
reached except that it is void ab initio. In this
case, the right to impugn a void marriage does
not prescribe, and may be raised any time.
Lastly, to settle all doubts, jurisprudence has
laid down the rule that the five-year common-
law cohabitation period under Article 76
means a five-year period computed back from
the date of celebration of marriage, and refers
to a period of legal union had it not been for
the absence of a marriage. 57 It covers the
years immediately preceding the day of the
marriage, characterized by exclusivity
meaning no third party was involved at any
time within the five years and continuity
that is unbroken. 58
WHEREFORE, the Petitions are DENIED. The
Amended Decision of the Court of Appeals,
dated 7 November 2006 in CA-G.R. CV No.
68759, declaring the marriage of Jose Dayot
to Felisa Tecson-Dayot void ab initio, is
AFFIRMED, without prejudice to their
criminal liability, if any. No costs. aAEIHC
SO ORDERED.
Austria-Martinez, Tinga, * Velasco, Jr. ** and
Reyes, JJ., concur.
FIRST DIVISION
[G.R. No. 169766. March 30, 2011.]
ESTRELLITA JULIANO-LLAVE, petitioner,
vs. REPUBLIC OF THE PHILIPPINES, HAJA
PUTRI ZORAYDA A. TAMANO and ADIB
AHMAD A. TAMANO, respondents.
DECISION
DEL CASTILLO, J p:
A new law ought to affect the future, not what
is past. Hence, in the case of subsequent
marriage laws, no vested rights shall be
impaired that pertain to the protection of the
legitimate union of a married couple.
TSIEAD
This petition for review on certiorari assails
the Decision 1 dated August 17, 2004 of the
Court of Appeals (CA) in CA-G.R. CV No.
61762 and its subsequent Resolution 2 dated
September 13, 2005, which affirmed the
Decision of the Regional Trial Court (RTC) of
Quezon City, Branch 89 declaring petitioner
Estrellita Juliano-Llave's (Estrellita) marriage
to Sen. Mamintal A.J. Tamano (Sen. Tamano)
as void ab initio.
Factual Antecedents
Around 11 months before his death, Sen.
Tamano married Estrellita twice initially
under the Islamic laws and tradition on May
27, 1993 in Cotabato City 3 and,
subsequently, under a civil ceremony
officiated by an RTC Judge at Malabang,
Lanao del Sur on June 2, 1993. 4 In their
marriage contracts, Sen. Tamano's civil status
was indicated as 'divorced.'
Since then, Estrellita has been representing
herself to the whole world as Sen. Tamano's
wife, and upon his death, his widow.
AIDTSE
On November 23, 1994, private respondents
Haja Putri Zorayda A. Tamano (Zorayda) and
her son Adib Ahmad A. Tamano (Adib), in
their own behalf and in behalf of the rest of
Sen. Tamano's legitimate children with
Zorayda, 5 filed a complaint with the RTC of
Quezon City for the declaration of nullity of
marriage between Estrellita and Sen. Tamano
for being bigamous. The complaint 6 alleged,
inter alia, that Sen. Tamano married Zorayda
on May 31, 1958 under civil rites, and that
this marriage remained subsisting when he
married Estrellita in 1993. The complaint
likewise averred that:
11. The marriage of the deceased and
Complainant Zorayda, having been celebrated
under the New Civil Code, is therefore
governed by this law. Based on Article 35 (4)
of the Family Code, the subsequent marriage
entered into by deceased Mamintal with
Defendant Llave is void ab initio because he
contracted the same while his prior marriage
to Complainant Zorayda was still subsisting,
and his status being declared as "divorced"
has no factual or legal basis, because the
deceased never divorced Complainant Zorayda
in his lifetime, and he could not have validly
done so because divorce is not allowed under
the New Civil Code;
11.1 Moreover, the deceased did not and
could not have divorced Complainant Zorayda
by invoking the provision of P.D. 1083,
otherwise known as the Code of Muslim
Personal Laws, for the simple reason that the
marriage of the deceased with Complainant
Zorayda was never deemed, legally and
factually, to have been one contracted under
Muslim law as provided under Art. 186 (2) of
P.D. 1083, since they (deceased and
Complainant Zorayda) did not register their
mutual desire to be thus covered by this law;
7 IDcHCS
Summons was then served on Estrellita on
December 19, 1994. She then asked from the
court for an extension of 30 days to file her
answer to be counted from January 4, 1995, 8
and again, another 15 days 9 or until
February 18, 1995, both of which the court
granted. 10
Instead of submitting her answer, however,
Estrellita filed a Motion to Dismiss 11 on
February 20, 1995 where she declared that
Sen. Tamano and Zorayda are both Muslims
who were married under the Muslim rites, as
had been averred in the latter's disbarment
complaint against Sen. Tamano. 12 Estrellita
argued that the RTC has no jurisdiction to
take cognizance of the case because under
Presidential Decree (PD) No. 1083, or the Code
of Muslim Personal Laws of the Philippines
(Muslim Code), questions and issues involving
Muslim marriages and divorce fall under the
exclusive jurisdiction of shari'a courts.
The trial court denied Estrellita's motion and
asserted its jurisdiction over the case for
declaration of nullity. 13 Thus, Estrellita filed
in November 1995 a certiorari petition with
this Court questioning the denial of her
Motion to Dismiss. On December 15, 1995, we
referred the petition to the CA 14 which was
docketed thereat as CA-G.R. SP No. 39656.
ECDaAc
During the pendency of CA-G.R. SP No.
39656, the RTC continued to try the case
since there can be no default in cases of
declaration of nullity of marriage even if the
respondent failed to file an answer. Estrellita
was allowed to participate in the trial while
her opposing parties presented their evidence.
When it was Estrellita's turn to adduce
evidence, the hearings set for such purpose 15
were postponed mostly at her instance until
the trial court, on March 22, 1996, suspended
the proceedings 16 in view of the CA's
temporary restraining order issued on
February 29, 1996, enjoining it from hearing
the case. 17
Eventually, however, the CA resolved the
petition adverse to Estrellita in its Decision
dated September 30, 1996. 18 Estrellita then
elevated the appellate court's judgment to this
Court by way of a petition for review on
certiorari docketed as G.R. No. 126603. 19
Subsequent to the promulgation of the CA
Decision, the RTC ordered Estrellita to present
her evidence on June 26, 1997. 20 As
Estrellita was indisposed on that day, the
hearing was reset to July 9, 1997. 21 The day
before this scheduled hearing, Estrellita again
asked for a postponement. 22
Unhappy with the delays in the resolution of
their case, Zorayda and Adib moved to submit
the case for decision, 23 reasoning that
Estrellita had long been delaying the case.
Estrellita opposed, on the ground that she has
not yet filed her answer as she still awaits the
outcome of G.R. No. 126603. 24 cHAaCE
On June 29, 1998, we upheld the jurisdiction
of the RTC of Quezon City, 25 stating as one of
the reasons that as shari'a courts are not
vested with original and exclusive jurisdiction
in cases of marriages celebrated under both
the Civil Code and PD 1083, the RTC, as a
court of general jurisdiction, is not precluded
from assuming jurisdiction over such cases. In
our Resolution dated August 24, 1998, 26 we
denied Estrellita's motion for reconsideration
27 with finality.
A few days before this resolution, or on August
18, 1998, the RTC rendered the
aforementioned judgment declaring Estrellita's
marriage with Sen. Tamano as void ab initio.
28
Ruling of the Regional Trial Court
The RTC, finding that the marital ties of Sen.
Tamano and Zorayda were never severed,
declared Sen. Tamano's subsequent marriage
to Estrellita as void ab initio for being
bigamous under Article 35 of the Family Code
of the Philippines and under Article 83 of the
Civil Code of the Philippines. 29 The court
said: ADcHES
A comparison between Exhibits A and B
(supra) immediately shows that the second
marriage of the late Senator with [Estrellita]
was entered into during the subsistence of his
first marriage with [Zorayda]. This renders the
subsequent marriage void from the very
beginning. The fact that the late Senator
declared his civil status as "divorced" will not
in any way affect the void character of the
second marriage because, in this jurisdiction,
divorce obtained by the Filipino spouse is not
an acceptable method of terminating the
effects of a previous marriage, especially,
where the subsequent marriage was
solemnized under the Civil Code or Family
Code. 30
Ruling of the Court of Appeals
In her appeal, 31 Estrellita argued that she
was denied her right to be heard as the RTC
rendered its judgment even without waiting
for the finality of the Decision of the Supreme
Court in G.R. No. 126603. She claimed that
the RTC should have required her to file her
answer after the denial of her motion to
dismiss. She maintained that Sen. Tamano is
capacitated to marry her as his marriage and
subsequent divorce with Zorayda is governed
by the Muslim Code. Lastly, she highlighted
Zorayda's lack of legal standing to question
the validity of her marriage to the deceased.
cEASTa
In dismissing the appeal in its Decision dated
August 17, 2004, 32 the CA held that
Estrellita can no longer be allowed to file her
answer as she was given ample opportunity to
be heard but simply ignored it by asking for
numerous postponements. She never filed her
answer despite the lapse of around 60 days, a
period longer than what was prescribed by the
rules. It also ruled that Estrellita cannot rely
on her pending petition for certiorari with the
higher courts since, as an independent and
original action, it does not interrupt the
proceedings in the trial court.
As to the substantive merit of the case, the CA
adjudged that Estrellita's marriage to Sen.
Tamano is void ab initio for being bigamous,
reasoning that the marriage of Zorayda and
Sen. Tamano is governed by the Civil Code,
which does not provide for an absolute
divorce. It noted that their first nuptial
celebration was under civil rites, while the
subsequent Muslim celebration was only
ceremonial. Zorayda then, according to the
CA, had the legal standing to file the action as
she is Sen. Tamano's wife and, hence, the
injured party in the senator's subsequent
bigamous marriage with Estrellita. HTaSEA
In its September 13, 2005 Resolution, 33 the
CA denied Estrellita's Motion for
Reconsideration/Supplemental Motion for
Reconsideration where it debunked the
additional errors she raised. The CA noted
that the allegation of lack of the public
prosecutor's report on the existence of
collusion in violation of both Rule 9, Section 3
(e) of the Rules of Court 34 and Article 48 of
the Family Code 35 will not invalidate the trial
court's judgment as the proceedings between
the parties had been adversarial, negating the
existence of collusion. Assuming that the
issues have not been joined before the RTC,
the same is attributable to Estrellita's refusal
to file an answer. Lastly, the CA disregarded
Estrellita's allegation that the trial court
erroneously rendered its judgment way prior
to our remand to the RTC of the records of the
case ratiocinating that G.R. No. 126603
pertains to the issue on the denial of the
Motion to Dismiss, and not to the issue of the
validity of Estrellita's marriage to Sen.
Tamano.
The Parties' Respective Arguments
Reiterating her arguments before the court a
quo, Estrellita now argues that the CA erred in
upholding the RTC judgment as the latter was
prematurely issued, depriving her of the
opportunity to file an answer and to present
her evidence to dispute the allegations against
the validity of her marriage. She claims that
Judge Macias v. Macias 36 laid down the rule
that the filing of a motion to dismiss instead of
an answer suspends the period to file an
answer and, consequently, the trial court is
obliged to suspend proceedings while her
motion to dismiss on the ground of lack of
jurisdiction has not yet been resolved with
finality. She maintains that she merely
participated in the RTC hearings because of
the trial court's assurance that the
proceedings will be without prejudice to
whatever action the High Court will take on
her petition questioning the RTC's jurisdiction
and yet, the RTC violated this commitment as
it rendered an adverse judgment on August
18, 1998, months before the records of G.R.
No. 126603 were remanded to the CA on
November 11, 1998. 37 She also questions the
lack of a report of the public prosecutor anent
a finding of whether there was collusion, this
being a prerequisite before further proceeding
could be held when a party has failed to file an
answer in a suit for declaration of nullity of
marriage. EDaHAT
Estrellita is also steadfast in her belief that
her marriage with the late senator is valid as
the latter was already divorced under the
Muslim Code at the time he married her. She
asserts that such law automatically applies to
the marriage of Zorayda and the deceased
without need of registering their consent to be
covered by it, as both parties are Muslims
whose marriage was solemnized under Muslim
law. She pointed out that Sen. Tamano
married all his wives under Muslim rites, as
attested to by the affidavits of the siblings of
the deceased. 38
Lastly, Estrellita argues that Zorayda and
Adib have no legal standing to file suit
because only the husband or the wife can file
a complaint for the declaration of nullity of
marriage under Supreme Court Resolution
A.M. No. 02-11-10-SC. 39
Refuting the arguments, the Solicitor General
(Sol Gen) defends the CA's reasoning and
stresses that Estrellita was never deprived of
her right to be heard; and, that filing an
original action for certiorari does not stay the
proceedings of the main action before the
RTC.
As regards the alleged lack of report of the
public prosecutor if there is collusion, the Sol
Gen says that this is no longer essential
considering the vigorous opposition of
Estrellita in the suit that obviously shows the
lack of collusion. The Sol Gen also supports
private respondents' legal standing to
challenge the validity of Estrellita's purported
marriage with Sen. Tamano, reasoning that
any proper interested party may attack
directly or collaterally a void marriage, and
Zorayda and Adib have such right to file the
action as they are the ones prejudiced by the
marital union. DaCEIc
Zorayda and Adib, on the other hand, did not
file any comment.
Issues
The issues that must be resolved are the
following:
1. Whether the CA erred in affirming the
trial court's judgment, even though the latter
was rendered prematurely because: a) the
judgment was rendered without waiting for
the Supreme Court's final resolution of her
certiorari petition, i.e., G.R. No. 126603; b)
she has not yet filed her answer and thus was
denied due process; and c) the public
prosecutor did not even conduct an
investigation whether there was collusion;
2. Whether the marriage between
Estrellita and the late Sen. Tamano was
bigamous; and
3. Whether Zorayda and Adib have the
legal standing to have Estrellita's marriage
declared void ab initio.
Our Ruling
Estrellita's refusal to file an answer
eventually led to the loss of her right
to answer; and her pending petition
for certiorari/review on certiorari
questioning the denial of the motion
to dismiss before the higher courts
does not at all suspend the trial
proceedings of the principal suit
before the RTC of Quezon City.
Firstly, it can never be argued that Estrellita
was deprived of her right to due process. She
was never declared in default, and she even
actively participated in the trial to defend her
interest. DIAcTE
Estrellita invokes Judge Macias v. Macias 40
to justify the suspension of the period to file
an answer and of the proceedings in the trial
court until her petition for certiorari
questioning the validity of the denial of her
Motion to Dismiss has been decided by this
Court. In said case, we affirmed the following
reasoning of the CA which, apparently, is
Estrellita's basis for her argument, to wit:
However, she opted to file, on April 10, 2001,
a 'Motion to Dismiss,' instead of filing an
Answer to the complaint. The filing of said
motion suspended the period for her to file her
Answer to the complaint. Until said motion is
resolved by the Respondent Court with
finality, it behooved the Respondent Court to
suspend the hearings of the case on the
merits. The Respondent Court, on April 19,
2001, issued its Order denying the 'Motion to
Dismiss' of the Petitioner. Under Section 6,
Rule 16 of the 1997 Rules of Civil Procedure
[now Section 4], the Petitioner had the balance
of the period provided for in Rule 11 of the
said Rules but in no case less than five (5)
days computed from service on her of the
aforesaid Order of the Respondent Court
within which to file her Answer to the
complaint: . . . 41 (Emphasis supplied.)
Estrellita obviously misappreciated Macias. All
we pronounced therein is that the trial court
is mandated to suspend trial until it finally
resolves the motion to dismiss that is filed
before it. Nothing in the above excerpt states
that the trial court should suspend its
proceedings should the issue of the propriety
or impropriety of the motion to dismiss be
raised before the appellate courts. In Macias,
the trial court failed to observe due process in
the course of the proceeding of the case
because after it denied the wife's motion to
dismiss, it immediately proceeded to allow the
husband to present evidence ex parte and
resolved the case with undue haste even
when, under the rules of procedure, the wife
still had time to file an answer. In the instant
case, Estrellita had no time left for filing an
answer, as she filed the motion to dismiss
beyond the extended period earlier granted by
the trial court after she filed motions for
extension of time to file an answer. HEcSDa
Estrellita argues that the trial court
prematurely issued its judgment, as it should
have waited first for the resolution of her
Motion to Dismiss before the CA and,
subsequently, before this Court. However, in
upholding the RTC, the CA correctly ruled that
the pendency of a petition for certiorari does
not suspend the proceedings before the trial
court. "An application for certiorari is an
independent action which is not part or a
continuation of the trial which resulted in the
rendition of the judgment complained of." 42
Rule 65 of the Rules of Court is explicit in
stating that "[t]he petition shall not interrupt
the course of the principal case unless a
temporary restraining order or a writ of
preliminary injunction has been issued
against the public respondent from further
proceeding in the case." 43 In fact, the trial
court respected the CA's temporary
restraining order and only after the CA
rendered judgment did the RTC again require
Estrellita to present her evidence.
Notably, when the CA judgment was elevated
to us by way of Rule 45, we never issued any
order precluding the trial court from
proceeding with the principal action. With her
numerous requests for postponements,
Estrellita remained obstinate in refusing to file
an answer or to present her evidence when it
was her turn to do so, insisting that the trial
court should wait first for our decision in G.R.
No. 126603. Her failure to file an answer and
her refusal to present her evidence were
attributable only to herself and she should not
be allowed to benefit from her own dilatory
tactics to the prejudice of the other party.
Sans her answer, the trial court correctly
proceeded with the trial and rendered its
Decision after it deemed Estrellita to have
waived her right to present her side of the
story. Neither should the lower court wait for
the decision in G.R. No. 126603 to become
final and executory, nor should it wait for its
records to be remanded back to it because
G.R. No. 126603 involves strictly the propriety
of the Motion to Dismiss and not the issue of
validity of marriage. ACTIcS
The Public Prosecutor issued a report as
to the non-existence of collusion.
Aside from Article 48 of the Family Code and
Rule 9, Section 3 (e) of the Rules of Court, the
Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable
Marriages (A.M. No. 02-11-10-SC) 44 also
requires the participation of the public
prosecutor in cases involving void marriages.
It specifically mandates the prosecutor to
submit his investigation report to determine
whether there is collusion between the parties:
Sec. 9. Investigation report of public
prosecutor. (1) Within one month after
receipt of the court order mentioned in
paragraph (3) of Section 8 above, the public
prosecutor shall submit a report to the court
stating whether the parties are in collusion
and serve copies thereof on the parties and
their respective counsels, if any.
(2) If the public prosecutor finds that
collusion exists, he shall state the basis
thereof in his report. The parties shall file
their respective comments on the finding of
collusion within ten days from receipt of a
copy of the report. The court shall set the
report for hearing and if convinced that the
parties are in collusion, it shall dismiss the
petition.
(3) If the public prosecutor reports that no
collusion exists, the court shall set the case
for pre-trial. It shall be the duty of the public
prosecutor to appear for the State at the pre-
trial. SCEHaD
Records show that the trial court immediately
directed the public prosecutor to submit the
required report, 45 which we find to have been
sufficiently complied with by Assistant City
Prosecutor Edgardo T. Paragua in his
Manifestation dated March 30, 1995, 46
wherein he attested that there could be no
collusion between the parties and no
fabrication of evidence because Estrellita is
not the spouse of any of the private
respondents.
Furthermore, the lack of collusion is evident
in the case at bar. Even assuming that there
is a lack of report of collusion or a lack of
participation by the public prosecutor, just as
we held in Tuason v. Court of Appeals, 47 the
lack of participation of a fiscal does not
invalidate the proceedings in the trial court:
The role of the prosecuting attorney or fiscal
in annulment of marriage and legal separation
proceedings is to determine whether collusion
exists between the parties and to take care
that the evidence is not suppressed or
fabricated. Petitioner's vehement opposition to
the annulment proceedings negates the
conclusion that collusion existed between the
parties. There is no allegation by the petitioner
that evidence was suppressed or fabricated by
any of the parties. Under these circumstances,
we are convinced that the non-intervention of
a prosecuting attorney to assure lack of
collusion between the contending parties is
not fatal to the validity of the proceedings in
the trial court. 48 SETAcC
The Civil Code governs the marriage of
Zorayda and the late Sen. Tamano; their
marriage was never invalidated by PD
1083. Sen. Tamano's subsequent
marriage to Estrellita is void ab initio.
The marriage between the late Sen. Tamano
and Zorayda was celebrated in 1958,
solemnized under civil and Muslim rites. 49
The only law in force governing marriage
relationships between Muslims and non-
Muslims alike was the Civil Code of 1950,
under the provisions of which only one
marriage can exist at any given time. 50
Under the marriage provisions of the Civil
Code, divorce is not recognized except during
the effectivity of Republic Act No. 394 51
which was not availed of during its effectivity.
As far as Estrellita is concerned, Sen.
Tamano's prior marriage to Zorayda has been
severed by way of divorce under PD 1083, 52
the law that codified Muslim personal laws.
However, PD 1083 cannot benefit Estrellita.
Firstly, Article 13 (1) thereof provides that the
law applies to "marriage and divorce wherein
both parties are Muslims, or wherein only the
male party is a Muslim and the marriage is
solemnized in accordance with Muslim law or
this Code in any part of the Philippines." But
we already ruled in G.R. No. 126603 that
"Article 13 of PD 1083 does not provide for a
situation where the parties were married both
in civil and Muslim rites." 53
Moreover, the Muslim Code took effect only on
February 4, 1977, and this law cannot
retroactively override the Civil Code which
already bestowed certain rights on the
marriage of Sen. Tamano and Zorayda. The
former explicitly provided for the prospective
application of its provisions unless otherwise
provided: DcaSIH
Art. 186. (1). Effect of code on past acts.
Acts executed prior to the effectivity of this
Code shall be governed by the laws in force at
the time of their execution, and nothing herein
except as otherwise specifically provided, shall
affect their validity or legality or operate to
extinguish any right acquired or liability
incurred thereby.
It has been held that:
The foregoing provisions are consistent with
the principle that all laws operate
prospectively, unless the contrary appears or
is clearly, plainly and unequivocably
expressed or necessarily implied; accordingly,
every case of doubt will be resolved against
the retroactive operation of laws. Article 186
aforecited enunciates the general rule of the
Muslim Code to have its provisions applied
prospectively, and implicitly upholds the force
and effect of a pre-existing body of law,
specifically, the Civil Code in respect of civil
acts that took place before the Muslim Code's
enactment. 54
An instance of retroactive application of the
Muslim Code is Article 186 (2) which states:
A marriage contracted by a Muslim male prior
to the effectivity of this Code in accordance
with non-Muslim law shall be considered as
one contracted under Muslim law provided the
spouses register their mutual desire to this
effect. DcCITS
Even granting that there was registration of
mutual consent for the marriage to be
considered as one contracted under the
Muslim law, the registration of mutual
consent between Zorayda and Sen. Tamano
will still be ineffective, as both are Muslims
whose marriage was celebrated under both
civil and Muslim laws. Besides, as we have
already settled, the Civil Code governs their
personal status since this was in effect at the
time of the celebration of their marriage. In
view of Sen. Tamano's prior marriage which
subsisted at the time Estrellita married him,
their subsequent marriage is correctly
adjudged by the CA as void ab initio.
Zorayda and Adib, as the injured parties,
have the legal personalities to file the
declaration of nullity of marriage. A.M.
No. 02-11-10-SC, which limits to only the
husband or the wife the filing of a
petition for nullity is prospective in
application and does not shut out the
prior spouse from filing suit if the
ground is a bigamous subsequent
marriage.
Her marriage covered by the Family Code of
the Philippines, 55 Estrellita relies on A.M. No.
02-11-10-SC which took effect on March 15,
2003 claiming that under Section 2 (a) 56
thereof, only the husband or the wife, to the
exclusion of others, may file a petition for
declaration of absolute nullity, therefore only
she and Sen. Tamano may directly attack the
validity of their own marriage. SIEHcA
Estrellita claims that only the husband or the
wife in a void marriage can file a petition for
declaration of nullity of marriage. However,
this interpretation does not apply if the reason
behind the petition is bigamy.
In explaining why under A.M. No. 02-11-10-
SC only the spouses may file the petition to
the exclusion of compulsory or intestate heirs,
we said:
The Rationale of the Rules on Annulment of
Voidable Marriages and Declaration of
Absolute Nullity of Void Marriages, Legal
Separation and Provisional Orders explicates
on Section 2(a) in the following manner, viz.:
(1) Only an aggrieved or injured spouse
may file petitions for annulment of voidable
marriages and declaration of absolute nullity
of void marriages. Such petitions cannot be
filed by the compulsory or intestate heirs of
the spouses or by the State. [Section 2;
Section 3, paragraph a] ITSacC
Only an aggrieved or injured spouse may file a
petition for annulment of voidable marriages
or declaration of absolute nullity of void
marriages. Such petition cannot be filed by
compulsory or intestate heirs of the spouses
or by the State. The Committee is of the belief
that they do not have a legal right to file the
petition. Compulsory or intestate heirs have
only inchoate rights prior to the death of their
predecessor, and hence can only question the
validity of the marriage of the spouses upon
the death of a spouse in a proceeding for the
settlement of the estate of the deceased
spouse filed in the regular courts. On the
other hand, the concern of the State is to
preserve marriage and not to seek its
dissolution. 57
Note that the Rationale makes it clear that
Section 2 (a) of A.M. No. 02-11-10-SC refers to
the "aggrieved or injured spouse." If
Estrellita's interpretation is employed, the
prior spouse is unjustly precluded from filing
an action. Surely, this is not what the Rule
contemplated. DSETcC
The subsequent spouse may only be expected
to take action if he or she had only discovered
during the connubial period that the marriage
was bigamous, and especially if the conjugal
bliss had already vanished. Should parties in
a subsequent marriage benefit from the
bigamous marriage, it would not be expected
that they would file an action to declare the
marriage void and thus, in such
circumstance, the "injured spouse" who
should be given a legal remedy is the one in a
subsisting previous marriage. The latter is
clearly the aggrieved party as the bigamous
marriage not only threatens the financial and
the property ownership aspect of the prior
marriage but most of all, it causes an
emotional burden to the prior spouse. The
subsequent marriage will always be a
reminder of the infidelity of the spouse and
the disregard of the prior marriage which
sanctity is protected by the Constitution.
Indeed, Section 2 (a) of A.M. No. 02-11-10-SC
precludes the son from impugning the
subsequent marriage. But in the case at bar,
both Zorayda and Adib have legal
personalities to file an action for nullity. Albeit
the Supreme Court Resolution governs
marriages celebrated under the Family Code,
such is prospective in application and does
not apply to cases already commenced before
March 15, 2003. 58
Zorayda and Adib filed the case for declaration
of nullity of Estrellita's marriage in November
1994. While the Family Code is silent with
respect to the proper party who can file a
petition for declaration of nullity of marriage
prior to A.M. No. 02-11-10-SC, it has been
held that in a void marriage, in which no
marriage has taken place and cannot be the
source of rights, any interested party may
attack the marriage directly or collaterally
without prescription, which may be filed even
beyond the lifetime of the parties to the
marriage. 59 Since A.M. No. 02-11-10-SC does
not apply, Adib, as one of the children of the
deceased who has property rights as an heir,
is likewise considered to be the real party in
interest in the suit he and his mother had
filed since both of them stand to be benefited
or injured by the judgment in the suit. 60
Since our Philippine laws protect the marital
union of a couple, they should be interpreted
in a way that would preserve their respective
rights which include striking down bigamous
marriages. We thus find the CA Decision
correctly rendered. HCDAcE
WHEREFORE, the petition is DENIED. The
assailed August 17, 2004 Decision of the
Court of Appeals in CA-G.R. CV No. 61762, as
well as its subsequent Resolution issued on
September 13, 2005, are hereby AFFIRMED.
SO ORDERED.
Corona, C.J., Velasco, Jr., Leonardo-de Castro
and Perez, JJ., concur.
SECOND DIVISION
[G.R. No. 145226. February 6, 2004.]
LUCIO MORIGO y CACHO, petitioner, vs.
PEOPLE OF THE PHILIPPINES, respondent.
Jordan M. Pizarras and Joselito T. Lopez for
petitioner.
The Solicitor General for respondent.
SYNOPSIS
In 1990, petitioner contracted marriage with
Lucia Barrete in the Philippines. In 1991,
Lucia filed a petition and was granted divorce
by the Ontario Court in Canada. In 1992,
petitioner married Maria Lumbago and
thereafter filed a complaint docketed as Civil
Case No. 6020 for declaration of nullity of his
marriage with Lucia on the ground that no
marriage ceremony actually took place. Later,
petitioner was charged and found guilty of
bigamy. DEICHc
While petitioner alleged good faith and lack of
criminal intent to commit the crime of bigamy,
the Court ruled that there was absence of the
essential element of previous marriage. In
Civil Case No. 6020, the trial court ruled the
marriage between petitioner and Lucia was
void ab initio. No appeal was taken from that
decision and hence, it had long become final
and executory. The conviction for the offense
of bigamy, therefore, cannot be sustained;
petitioner must be acquitted of the instant
charge.
SYLLABUS
1. CRIMINAL LAW; BIGAMY; ELEMENTS.
In Marbella-Bobis v. Bobis, we laid down
the elements of bigamy thus: (1) the offender
has been legally married; (2) the first marriage
has not been legally dissolved, or in case his
or her spouse is absent, the absent spouse
has not been judicially declared presumptively
dead; (3) he contracts a subsequent marriage;
and (4) the subsequent marriage would have
been valid had it not been for the existence of
the first. HCTAEc
2. ID.; ID.; ID.; THAT ACCUSED MUST
HAVE BEEN LEGALLY MARRIED, NOT
PRESENT IN CASE AT BAR. The first
element of bigamy as a crime requires that the
accused must have been legally married. But
in this case, legally speaking, the petitioner
was never married to Lucia Barrete. Thus,
there is no first marriage to speak of. Under
the principle of retroactivity of a marriage
being declared void ab initio, the two were
never married "from the beginning". The
contract of marriage is null; it bears no legal
effect. Taking this argument to its logical
conclusion, for legal purposes, petitioner was
not married to Lucia at the time he contracted
the marriage with Maria Jececha. The
existence and the validity of the first marriage
being an essential element of the crime of
bigamy, it is but logical that a conviction for
said offense cannot be sustained where there
is no first marriage to speak of. The petitioner,
must, perforce be acquitted of the instant
charge.
DECISION
QUISUMBING, J p:
This petition for review on certiorari seeks to
reverse the decision 1 dated October 21, 1999
of the Court of Appeals in CA-G.R. CR No.
20700, which affirmed the judgment 2 dated
August 5, 1996 of the Regional Trial Court
(RTC) of Bohol, Branch 4, in Criminal Case
No. 8688. The trial court found herein
petitioner Lucio Morigo y Cacho guilty beyond
reasonable doubt of bigamy and sentenced
him to a prison term of seven (7) months of
prision correccional as minimum to six (6)
years and one (1) day of prision mayor as
maximum. Also assailed in this petition is the
resolution 3 of the appellate court, dated
September 25, 2000, denying Morigo's motion
for reconsideration. CTAIHc
The facts of this case, as found by the court a
quo, are as follows:
Appellant Lucio Morigo and Lucia Barrete
were boardmates at the house of Catalina
Tortor at Tagbilaran City, Province of Bohol,
for a period of four (4) years (from 1974-1978).
After school year 1977-78, Lucio Morigo and
Lucia Barrete lost contact with each other.
In 1984, Lucio Morigo was surprised to receive
a card from Lucia Barrete from Singapore. The
former replied and after an exchange of
letters, they became sweethearts.
In 1986, Lucia returned to the Philippines but
left again for Canada to work there. While in
Canada, they maintained constant
communication.
In 1990, Lucia came back to the Philippines
and proposed to petition appellant to join her
in Canada. Both agreed to get married, thus
they were married on August 30, 1990 at the
Iglesia de Filipina Nacional at Catagdaan,
Pilar, Bohol.
On September 8, 1990, Lucia reported back to
her work in Canada leaving appellant Lucio
behind.
On August 19, 1991, Lucia filed with the
Ontario Court (General Division) a petition for
divorce against appellant which was granted
by the court on January 17, 1992 and to take
effect on February 17, 1992.
On October 4, 1992, appellant Lucio Morigo
married Maria Jececha Lumbago 4 at the
Virgen sa Barangay Parish, Tagbilaran City,
Bohol.
On September 21, 1993, accused filed a
complaint for judicial declaration of nullity of
marriage in the Regional Trial Court of Bohol,
docketed as Civil Case No. 6020. The
complaint seek (sic) among others, the
declaration of nullity of accused's marriage
with Lucia, on the ground that no marriage
ceremony actually took place. cHESAD
On October 19, 1993, appellant was charged
with Bigamy in an Information 5 filed by the
City Prosecutor of Tagbilaran [City], with the
Regional Trial Court of Bohol. 6
The petitioner moved for suspension of the
arraignment on the ground that the civil case
for judicial nullification of his marriage with
Lucia posed a prejudicial question in the
bigamy case. His motion was granted, but
subsequently denied upon motion for
reconsideration by the prosecution. When
arraigned in the bigamy case, which was
docketed as Criminal Case No. 8688, herein
petitioner pleaded not guilty to the charge.
Trial thereafter ensued.
On August 5, 1996, the RTC of Bohol handed
down its judgment in Criminal Case No. 8688,
as follows:
WHEREFORE, foregoing premises considered,
the Court finds accused Lucio Morigo y Cacho
guilty beyond reasonable doubt of the crime of
Bigamy and sentences him to suffer the
penalty of imprisonment ranging from Seven
(7) Months of Prision Correccional as
minimum to Six (6) Years and One (1) Day of
Prision Mayor as maximum.
SO ORDERED. 7
In convicting herein petitioner, the trial court
discounted petitioners claim that his first
marriage to Lucia was null and void ab initio.
Following Domingo v. Court of Appeals, 8 the
trial court ruled that want of a valid marriage
ceremony is not a defense in a charge of
bigamy. The parties to a marriage should not
be allowed to assume that their marriage is
void even if such be the fact but must first
secure a judicial declaration of the nullity of
their marriage before they can be allowed to
marry again.
Anent the Canadian divorce obtained by
Lucia, the trial court cited Ramirez v. Gmur, 9
which held that the court of a country in
which neither of the spouses is domiciled and
in which one or both spouses may resort
merely for the purpose of obtaining a divorce,
has no jurisdiction to determine the
matrimonial status of the parties. As such, a
divorce granted by said court is not entitled to
recognition anywhere. Debunking Lucio's
defense of good faith in contracting the second
marriage, the trial court stressed that
following People v. Bitdu, 10 everyone is
presumed to know the law, and the fact that
one does not know that his act constitutes a
violation of the law does not exempt him from
the consequences thereof.
Seasonably, petitioner filed an appeal with the
Court of Appeals, docketed as CA-G.R. CR No.
20700. TcDHSI
Meanwhile, on October 23, 1997, or while CA-
G.R. CR No. 20700 was pending before the
appellate court, the trial court rendered a
decision in Civil Case No. 6020 declaring the
marriage between Lucio and Lucia void ab
initio since no marriage ceremony actually
took place. No appeal was taken from this
decision, which then became final and
executory.
On October 21, 1999, the appellate court
decided CA-G.R. CR No. 20700 as follows:
WHEREFORE, finding no error in the
appealed decision, the same is hereby
AFFIRMED in toto.
SO ORDERED. 11
In affirming the assailed judgment of
conviction, the appellate court stressed that
the subsequent declaration of nullity of
Lucio's marriage to Lucia in Civil Case No.
6020 could not acquit Lucio. The reason is
that what is sought to be punished by Article
349 12 of the Revised Penal Code is the act of
contracting a second marriage before the first
marriage had been dissolved. Hence, the CA
held, the fact that the first marriage was void
from the beginning is not a valid defense in a
bigamy case.
The Court of Appeals also pointed out that the
divorce decree obtained by Lucia from the
Canadian court could not be accorded validity
in the Philippines, pursuant to Article 15 13 of
the Civil Code and given the fact that it is
contrary to public policy in this jurisdiction.
Under Article 17 14 of the Civil Code, a
declaration of public policy cannot be
rendered ineffectual by a judgment
promulgated in a foreign jurisdiction.
Petitioner moved for reconsideration of the
appellate courts decision, contending that the
doctrine in Mendiola v. People, 15 allows
mistake upon a difficult question of law (such
as the effect of a foreign divorce decree) to be a
basis for good faith. CIAHaT
On September 25, 2000, the appellate court
denied the motion for lack of merit. 16
However, the denial was by a split vote. The
ponente of the appellate courts original
decision in CA-G.R. CR No. 20700, Justice
Eugenio S. Labitoria, joined in the opinion
prepared by Justice Bernardo P. Abesamis.
The dissent observed that as the first marriage
was validly declared void ab initio, then there
was no first marriage to speak of. Since the
date of the nullity retroacts to the date of the
first marriage and since herein petitioner was,
in the eyes of the law, never married, he
cannot be convicted beyond reasonable doubt
of bigamy.
The present petition raises the following
issues for our resolution: ASIETa
A.
WHETHER OR NOT THE COURT OF APPEALS
ERRED IN FAILING TO APPLY THE RULE
THAT IN CRIMES PENALIZED UNDER THE
REVISED PENAL CODE, CRIMINAL INTENT IS
AN INDISPENSABLE REQUISITE.
COROLLARILY, WHETHER OR NOT THE
COURT OF APPEALS ERRED IN FAILING TO
APPRECIATE [THE] PETITIONERS LACK OF
CRIMINAL INTENT WHEN HE CONTRACTED
THE SECOND MARRIAGE.
B.
WHETHER OR NOT THE COURT OF APPEALS
ERRED IN HOLDING THAT THE RULING IN
PEOPLE VS. BITDU (58 PHIL. 817) IS
APPLICABLE TO THE CASE AT BAR.
C.
WHETHER OR NOT THE COURT OF APPEALS
ERRED IN FAILING TO APPLY THE RULE
THAT EACH AND EVERY CIRCUMSTANCE
FAVORING THE INNOCENCE OF THE
ACCUSED MUST BE TAKEN INTO ACCOUNT.
17
To our mind, the primordial issue should be
whether or not petitioner committed bigamy
and if so, whether his defense of good faith is
valid.
The petitioner submits that he should not be
faulted for relying in good faith upon the
divorce decree of the Ontario court. He
highlights the fact that he contracted the
second marriage openly and publicly, which a
person intent upon bigamy would not be
doing. The petitioner further argues that his
lack of criminal intent is material to a
conviction or acquittal in the instant case. The
crime of bigamy, just like other felonies
punished under the Revised Penal Code, is
mala in se, and hence, good faith and lack of
criminal intent are allowed as a complete
defense. He stresses that there is a difference
between the intent to commit the crime and
the intent to perpetrate the act. Hence, it does
not necessarily follow that his intention to
contract a second marriage is tantamount to
an intent to commit bigamy.
For the respondent, the Office of the Solicitor
General (OSG) submits that good faith in the
instant case is a convenient but flimsy excuse.
The Solicitor General relies upon our ruling in
Marbella-Bobis v. Bobis, 18 which held that
bigamy can be successfully prosecuted
provided all the elements concur, stressing
that under Article 40 19 of the Family Code, a
judicial declaration of nullity is a must before
a party may re-marry. Whether or not the
petitioner was aware of said Article 40 is of no
account as everyone is presumed to know the
law. The OSG counters that petitioners
contention that he was in good faith because
he relied on the divorce decree of the Ontario
court is negated by his act of filing Civil Case
No. 6020, seeking a judicial declaration of
nullity of his marriage to Lucia. CIDTcH
Before we delve into petitioners defense of
good faith and lack of criminal intent, we
must first determine whether all the elements
of bigamy are present in this case. In
Marbella-Bobis v. Bobis, 20 we laid down the
elements of bigamy thus:
(1) the offender has been legally married;
(2) the first marriage has not been legally
dissolved, or in case his or her spouse is
absent, the absent spouse has not been
judicially declared presumptively dead;
(3) he contracts a subsequent marriage;
and
(4) the subsequent marriage would have
been valid had it not been for the existence of
the first. aDcTHE
Applying the foregoing test to the instant case,
we note that during the pendency of CA-G.R.
CR No. 20700, the RTC of Bohol Branch 1,
handed down the following decision in Civil
Case No. 6020, to wit:
WHEREFORE, premises considered, judgment
is hereby rendered decreeing the annulment of
the marriage entered into by petitioner Lucio
Morigo and Lucia Barrete on August 23, 1990
in Pilar, Bohol and further directing the Local
Civil Registrar of Pilar, Bohol to effect the
cancellation of the marriage contract.
SO ORDERED. 21
The trial court found that there was no actual
marriage ceremony performed between Lucio
and Lucia by a solemnizing officer. Instead,
what transpired was a mere signing of the
marriage contract by the two, without the
presence of a solemnizing officer. The trial
court thus held that the marriage is void ab
initio, in accordance with Articles 3 22 and 4
23 of the Family Code. As the dissenting
opinion in CA-G.R. CR No. 20700, correctly
puts it, This simply means that there was no
marriage to begin with; and that such
declaration of nullity retroacts to the date of
the first marriage. In other words, for all
intents and purposes, reckoned from the date
of the declaration of the first marriage as void
ab initio to the date of the celebration of the
first marriage, the accused was, under the
eyes of the law, never married." 24 The
records show that no appeal was taken from
the decision of the trial court in Civil Case No.
6020, hence, the decision had long become
final and executory.
The first element of bigamy as a crime
requires that the accused must have been
legally married. But in this case, legally
speaking, the petitioner was never married to
Lucia Barrete. Thus, there is no first marriage
to speak of. Under the principle of retroactivity
of a marriage being declared void ab initio, the
two were never married from the beginning.
The contract of marriage is null; it bears no
legal effect. Taking this argument to its logical
conclusion, for legal purposes, petitioner was
not married to Lucia at the time he contracted
the marriage with Maria Jececha. The
existence and the validity of the first marriage
being an essential element of the crime of
bigamy, it is but logical that a conviction for
said offense cannot be sustained where there
is no first marriage to speak of. The petitioner,
must, perforce be acquitted of the instant
charge. IAETSC
The present case is analogous to, but must be
distinguished from Mercado v. Tan. 25 In the
latter case, the judicial declaration of nullity of
the first marriage was likewise obtained after
the second marriage was already celebrated.
We held therein that:
The law abhors an injustice and the Court is
mandated to liberally construe a penal statute
in favor of an accused and weigh every
circumstance in favor of the presumption of
innocence to ensure that justice is done.
Under the circumstances of the present case,
we held that petitioner has not committed
bigamy. Further, we also find that we need not
tarry on the issue of the validity of his defense
of good faith or lack of criminal intent, which
is now moot and academic. DcITHE
WHEREFORE, the instant petition is
GRANTED. The assailed decision, dated
October 21, 1999 of the Court of Appeals in
CA-G.R. CR No. 20700, as well as the
resolution of the appellate court dated
September 25, 2000, denying herein
petitioners motion for reconsideration, is
REVERSED and SET ASIDE. The petitioner
Lucio Morigo y Cacho is ACQUITTED from the
charge of BIGAMY on the ground that his guilt
has not been proven with moral certainty.
SO ORDERED.

A judicial declaration of nullity of a previous Puno, Austria-Martinez, Callejo, Sr. and

marriage is necessary before a subsequent one Tinga, JJ., concur.
can be legally contracted. One who enters into
a subsequent marriage without first obtaining
such judicial declaration is guilty of bigamy.
This principle applies even if the earlier union
is characterized by statutes as "void." 26

It bears stressing though that in Mercado, the

first marriage was actually solemnized not just
once, but twice: first before a judge where a
marriage certificate was duly issued and then
again six months later before a priest in
religious rites. Ostensibly, at least, the first
marriage appeared to have transpired,
although later declared void ab initio.
ASHEca

In the instant case, however, no marriage

ceremony at all was performed by a duly
authorized solemnizing officer. Petitioner and
Lucia Barrete merely signed a marriage
contract on their own. The mere private act of
signing a marriage contract bears no
semblance to a valid marriage and thus, needs
no judicial declaration of nullity. Such act
alone, without more, cannot be deemed to
constitute an ostensibly valid marriage for
which petitioner might be held liable for
bigamy unless he first secures a judicial
declaration of nullity before he contracts a
subsequent marriage.
FIRST DIVISION
[G.R. No. 171914. July 23, 2014.]
SOLEDAD L. LAVADIA, petitioner, vs.
HEIRS OF JUAN LUCES LUNA, represented
by GREGORIO Z. LUNA and EUGENIA
ZABALLERO-LUNA, respondents.
DECISION
BERSAMIN, J p:
Divorce between Filipinos is void and
ineffectual under the nationality rule adopted
by Philippine law. Hence, any settlement of
property between the parties of the first
marriage involving Filipinos submitted as an
incident of a divorce obtained in a foreign
country lacks competent judicial approval,
and cannot be enforceable against the assets
of the husband who contracts a subsequent
marriage. acCDSH
The Case
The petitioner, the second wife of the late Atty.
Juan Luces Luna, appeals the adverse
decision promulgated on November 11, 2005,
1 whereby the Court of Appeals (CA) affirmed
with modification the decision rendered on
August 27, 2001 by the Regional Trial Court
(RTC), Branch 138, in Makati City. 2 The CA
thereby denied her right in the 25/100 pro
indiviso share of the husband in a
condominium unit, and in the law books of
the husband acquired during the second
marriage.
Antecedents
The antecedent facts were summarized by the
CA as follows:
ATTY. LUNA, a practicing lawyer, was at first a
name partner in the prestigious law firm
Sycip, Salazar, Luna, Manalo, Hernandez &
Feliciano Law Offices at that time when he
was living with his first wife, herein
intervenor-appellant Eugenia Zaballero-Luna
(EUGENIA), whom he initially married in a
civil ceremony conducted by the Justice of the
Peace of Paraaque, Rizal on September 10,
1947 and later solemnized in a church
ceremony at the Pro-Cathedral in San Miguel,
Bulacan on September 12, 1948. In ATTY.
LUNA's marriage to EUGENIA, they begot
seven (7) children, namely: Regina Maria L.
Nadal, Juan Luis Luna, Araceli Victoria L.
Arellano, Ana Maria L. Tabunda, Gregorio
Macario Luna, Carolina Linda L. Tapia, and
Cesar Antonio Luna. After almost two (2)
decades of marriage, ATTY. LUNA and
EUGENIA eventually agreed to live apart from
each other in February 1966 and agreed to
separation of property, to which end, they
entered into a written agreement entitled
"AGREEMENT FOR SEPARATION AND
PROPERTY SETTLEMENT" dated November
12, 1975, whereby they agreed to live
separately and to dissolve and liquidate their
conjugal partnership of property. CAHaST
On January 12, 1977, ATTY. LUNA obtained a
divorce decree of his marriage with EUGENIA
from the Civil and Commercial Chamber of the
First Circumscription of the Court of First
Instance of Sto. Domingo, Dominican
Republic. Also in Sto. Domingo, Dominican
Republic, on the same date, ATTY. LUNA
contracted another marriage, this time with
SOLEDAD. Thereafter, ATTY. LUNA and
SOLEDAD returned to the Philippines and
lived together as husband and wife until 1987.
Sometime in 1977, ATTY. LUNA organized a
new law firm named: Luna, Puruganan, Sison
and Ongkiko (LUPSICON) where ATTY. LUNA
was the managing partner.
On February 14, 1978, LUPSICON through
ATTY. LUNA purchased from Tandang Sora
Development Corporation the 6th Floor of
Kalaw-Ledesma Condominium Project
(condominium unit) at Gamboa St., Makati
City, consisting of 517.52 square meters, for
P1,449,056.00, to be paid on installment basis
for 36 months starting on April 15, 1978. Said
condominium unit was to be used as law
office of LUPSICON. After full payment, the
Deed of Absolute Sale over the condominium
unit was executed on July 15, 1983, and CCT
No. 4779 was issued on August 10, 1983,
which was registered bearing the following
names:
"JUAN LUCES LUNA, married to Soledad L.
Luna (46/100); MARIO E. ONGKIKO, married
to Sonia P.G. Ongkiko (25/100); GREGORIO
R. PURUGANAN, married to Paz A. Puruganan
(17/100); and TERESITA CRUZ SISON,
married to Antonio J.M. Sison (12/100) . . ."
TASCDI
Subsequently, 8/100 share of ATTY. LUNA
and 17/100 share of Atty. Gregorio R.
Puruganan in the condominium unit was sold
to Atty. Mario E. Ongkiko, for which a new
CCT No. 21761 was issued on February 7,
1992 in the following names:
"JUAN LUCES LUNA, married to Soledad L.
Luna (38/100); MARIO E. ONGKIKO, married
to Sonia P.G. Ongkiko (50/100); TERESITA
CRUZ SISON, married to Antonio J.M. Sison
(12/100) . . ."
Sometime in 1992, LUPSICON was dissolved
and the condominium unit was partitioned by
the partners but the same was still registered
in common under CCT No. 21716. The parties
stipulated that the interest of ATTY. LUNA
over the condominium unit would be 25/100
share.
ATTY. LUNA thereafter established and
headed another law firm with Atty. Renato G.
De la Cruz and used a portion of the office
condominium unit as their office. The said law
firm lasted until the death of ATTY. JUAN on
July 12, 1997.
After the death of ATTY. JUAN, his share in
the condominium unit including the
lawbooks, office furniture and equipment
found therein were taken over by Gregorio Z.
Luna, ATTY. LUNA's son of the first marriage.
Gregorio Z. Luna then leased out the 25/100
portion of the condominium unit belonging to
his father to Atty. Renato G. De la Cruz who
established his own law firm named Renato G.
De la Cruz & Associates.
The 25/100 pro-indiviso share of ATTY. Luna
in the condominium unit as well as the law
books, office furniture and equipment became
the subject of the complaint filed by
SOLEDAD against the heirs of ATTY. JUAN
with the RTC of Makati City, Branch 138, on
September 10, 1999, docketed as Civil Case
No. 99-1644. The complaint alleged that the
subject properties were acquired during the
existence of the marriage between ATTY. LUNA
and SOLEDAD through their joint efforts that
since they had no children, SOLEDAD became
co-owner of the said properties upon the death
of ATTY. LUNA to the extent of 3/4 pro-
indiviso share consisting of her 1/2 share in
the said properties plus her 1/2 share in the
net estate of ATTY. LUNA which was
bequeathed to her in the latter's last will and
testament; and that the heirs of ATTY. LUNA
through Gregorio Z. Luna excluded SOLEDAD
from her share in the subject properties. The
complaint prayed that SOLEDAD be declared
the owner of the 1/2 portion of the subject
properties; that the same be partitioned; that
an accounting of the rentals on the
condominium unit pertaining to the share of
SOLEDAD be conducted; that a receiver be
appointed to preserve and administer the
subject properties; and that the heirs of ATTY.
LUNA be ordered to pay attorney's fees and
costs of the suit to SOLEDAD. 3 EIaDHS
Ruling of the RTC
On August 27, 2001, the RTC rendered its
decision after trial upon the aforementioned
facts, 4 disposing thusly:
WHEREFORE, judgment is rendered as
follows:
(a) The 24/100 pro-indiviso share in the
condominium unit located at the SIXTH
FLOOR of the KALAW LEDESMA
CONDOMINIUM PROJECT covered by
Condominium Certificate of Title No. 21761
consisting of FIVE HUNDRED SEVENTEEN
(517/100) SQUARE METERS is adjudged to
have been acquired by Juan Luces Luna
through his sole industry;
(b) Plaintiff has no right as owner or under
any other concept over the condominium unit,
hence the entry in Condominium Certificate of
Title No. 21761 of the Registry of Deeds of
Makati with respect to the civil status of Juan
Luces Luna should be changed from "JUAN
LUCES LUNA married to Soledad L. Luna" to
"JUAN LUCES LUNA married to Eugenia
Zaballero Luna";
(c) Plaintiff is declared to be the owner of
the books Corpus Juris, Fletcher on
Corporation, American Jurisprudence and
Federal Supreme Court Reports found in the
condominium unit and defendants are ordered
to deliver them to the plaintiff as soon as
appropriate arrangements have been made for
transport and storage.
No pronouncement as to costs.
SO ORDERED. 5
Decision of the CA
Both parties appealed to the CA. 6 IEAHca
On her part, the petitioner assigned the
following errors to the RTC namely:
I. THE LOWER COURT ERRED IN
RULING THAT THE CONDOMINIUM UNIT
WAS ACQUIRED THRU THE SOLE INDUSTRY
OF ATTY. JUAN LUCES LUNA;
II. THE LOWER COURT ERRED IN
RULING THAT PLAINTIFF-APPELLANT DID
NOT CONTRIBUTE MONEY FOR THE
ACQUISITION OF THE CONDOMINIUM UNIT;
III. THE LOWER COURT ERRED IN
GIVING CREDENCE TO PORTIONS OF THE
TESTIMONY OF GREGORIO LUNA, WHO HAS
NO ACTUAL KNOWLEDGE OF THE
ACQUISITION OF THE UNIT, BUT IGNORED
OTHER PORTIONS OF HIS TESTIMONY
FAVORABLE TO THE PLAINTIFF-APPELLANT;
IV. THE LOWER COURT ERRED IN NOT
GIVING SIGNIFICANCE TO THE FACT THAT
THE CONJUGAL PARTNERSHIP BETWEEN
LUNA AND INTERVENOR-APPELLANT WAS
ALREADY DISSOLVED AND LIQUIDATED
PRIOR TO THE UNION OF PLAINTIFF-
APPELLANT AND LUNA;
V. THE LOWER COURT ERRED IN
GIVING UNDUE SIGNIFICANCE TO THE
ABSENCE OF THE DISPOSITION OF THE
CONDOMINIUM UNIT IN THE HOLOGRAPHIC
WILL OF THE PLAINTIFF-APPELLANT;
VI. THE LOWER COURT ERRED IN
GIVING UNDUE SIGNIFICANCE TO THE FACT
THAT THE NAME OF PLAINTIFF-APPELLANT
DID NOT APPEAR IN THE DEED OF
ABSOLUTE SALE EXECUTED BY TANDANG
SORA DEVELOPMENT CORPORATION OVER
THE CONDOMINIUM UNIT; cAaDHT
VII. THE LOWER COURT ERRED IN
RULING THAT NEITHER ARTICLE 148 OF
THE FAMILY CODE NOR ARTICLE 144 OF
THE CIVIL CODE OF THE PHILIPPINES ARE
APPLICABLE;
VIII. THE LOWER COURT ERRED IN NOT
RULING THAT THE CAUSE OF ACTION OF
THE INTERVENOR-APPELLANT HAS BEEN
BARRED BY PRESCRIPTION AND LACHES;
and
IX. THE LOWER COURT ERRED IN NOT
EXPUNGING/DISMISSING THE
INTERVENTION FOR FAILURE OF
INTERVENOR-APPELLANT TO PAY FILING
FEE. 7
In contrast, the respondents attributed the
following errors to the trial court, to wit:
I. THE LOWER COURT ERRED IN
HOLDING THAT CERTAIN FOREIGN LAW
BOOKS IN THE LAW OFFICE OF ATTY. LUNA
WERE BOUGHT WITH THE USE OF
PLAINTIFF'S MONEY;
II. THE LOWER COURT ERRED IN
HOLDING THAT PLAINTIFF PROVED BY
PREPONDERANCE OF EVIDENCE (HER
CLAIM OVER) THE SPECIFIED FOREIGN LAW
BOOKS FOUND IN ATTY. LUNA'S LAW
OFFICE; and
III. THE LOWER COURT ERRED IN NOT
HOLDING THAT, ASSUMING PLAINTIFF PAID
FOR THE SAID FOREIGN LAW BOOKS, THE
RIGHT TO RECOVER THEM HAD
PRESCRIBED AND BARRED BY LACHES AND
ESTOPPEL. 8 ADHCSE
On November 11, 2005, the CA promulgated
its assailed modified decision, 9 holding and
ruling:
EUGENIA, the first wife, was the legitimate
wife of ATTY. LUNA until the latter's death on
July 12, 1997. The absolute divorce decree
obtained by ATTY. LUNA in the Dominican
Republic did not terminate his prior marriage
with EUGENIA because foreign divorce
between Filipino citizens is not recognized in
our jurisdiction. . . . 10
xxx xxx xxx
WHEREFORE, premises considered, the
assailed August 27, 2001 Decision of the RTC
of Makati City, Branch 138, is hereby
MODIFIED as follows:
(a) The 25/100 pro-indiviso share in the
condominium unit at the SIXTH FLOOR of the
KALAW LEDESMA CONDOMINIUM PROJECT
covered by Condominium Certificate of Title
No. 21761 consisting of FIVE HUNDRED
SEVENTEEN (517/100) (sic) SQUARE
METERS is hereby adjudged to defendants-
appellants, the heirs of Juan Luces Luna and
Eugenia Zaballero-Lung (first marriage),
having been acquired from the sole funds and
sole industry of Juan Luces Luna while
marriage of Juan Luces Luna and Eugenia
Zaballero-Luna (first marriage) was still
subsisting and valid;
(b) Plaintiff-appellant Soledad Lavadia has
no right as owner or under any other concept
over the condominium unit, hence the entry in
Condominium Certificate of Title No. 21761 of
the Registry of Deeds of Makati with respect to
the civil status of Juan Luces Luna should be
changed from "JUAN LUCES LUNA married to
Soledad L. Luna" to "JUAN LUCES LUNA
married to Eugenia Zaballero Luna";
SHaATC
(c) Defendants-appellants, the heirs of
Juan Luces Luna and Eugenia Zaballero-Luna
(first marriage) are hereby declared to be the
owner of the books Corpus Juris, Fletcher on
Corporation, American Jurisprudence and
Federal Supreme Court Reports found in the
condominium unit.
No pronouncement as to costs.
SO ORDERED. 11
On March 13, 2006, 12 the CA denied the
petitioner's motion for reconsideration. 13
Issues
In this appeal, the petitioner avers in her
petition for review on certiorari that:
A. The Honorable Court of Appeals erred
in ruling that the Agreement for Separation
and Property Settlement executed by Luna
and Respondent Eugenia was unenforceable;
hence, their conjugal partnership was not
dissolved and liquidated;
B. The Honorable Court of Appeals erred
in not recognizing the Dominican Republic
court's approval of the Agreement;
C. The Honorable Court of Appeals erred
in ruling that Petitioner Failed to adduce
sufficient proof of actual contribution to the
acquisition of purchase of the subject
condominium unit; and
D. The Honorable Court of Appeals erred
in ruling that Petitioner was not entitled to the
subject law books. 14
The decisive question to be resolved is who
among the contending parties should be
entitled to the 25/100 pro indiviso share in
the condominium unit; and to the law books
(i.e., Corpus Juris, Fletcher on Corporation,
American Jurisprudence and Federal Supreme
Court Reports). AHcCDI
The resolution of the decisive question
requires the Court to ascertain the law that
should determine, firstly, whether the divorce
between Atty. Luna and Eugenia Zaballero-
Luna (Eugenia) had validly dissolved the first
marriage; and, secondly, whether the second
marriage entered into by the late Atty. Luna
and the petitioner entitled the latter to any
rights in property.
Ruling of the Court
We affirm the modified decision of the CA.
1.
Atty. Luna's first marriage with Eugenia
subsisted up to the time of his death
The first marriage between Atty. Luna. and
Eugenia, both Filipinos, was solemnized in the
Philippines on September 10, 1947. The law in
force at the time of the solemnization was the
Spanish Civil Code, which adopted the
nationality rule. The Civil Code continued to
follow the nationality rule, to the effect that
Philippine laws relating to family rights and
duties, or to the status, condition and legal
capacity of persons were binding upon citizens
of the Philippines, although living abroad. 15
Pursuant to the nationality rule, Philippine
laws governed this case by virtue of both Atty.
Luna and Eugenia having remained Filipinos
until the death of Atty. Luna on July 12, 1997
terminated their marriage.
From the time of the celebration of the first
marriage on September 10, 1947 until the
present, absolute divorce between Filipino
spouses has not been recognized in the
Philippines. The non-recognition of absolute
divorce between Filipinos has remained even
under the Family Code, 16 even if either or
both of the spouses are residing abroad. 17
Indeed, the only two types of defective marital
unions under our laws have been the void and
the voidable marriages. As such, the remedies
against such defective marriages have been
limited to the declaration of nullity of the
marriage and the annulment of the marriage.
DHIcET
It is true that on January 12, 1976, the Court
of First Instance (CFI) of Sto. Domingo in the
Dominican Republic issued the Divorce Decree
dissolving the first marriage of Atty. Luna and
Eugenia. 18 Conformably with the nationality
rule, however, the divorce, even if voluntarily
obtained abroad, did not dissolve the marriage
between Atty. Luna and Eugenia, which
subsisted up to the time of his death on July
12, 1997. This finding conforms to the
Constitution, which characterizes marriage as
an inviolable social institution, 19 and regards
it as a special contract of permanent union
between a man and a woman for the
establishment of a conjugal and family life. 20
The non-recognition of absolute divorce in the
Philippines is a manifestation of the respect
for the sanctity of the marital union especially
among Filipino citizens. It affirms that the
extinguishment of a valid marriage must be
grounded only upon the death of either
spouse, or upon a ground expressly provided
by law. For as long as this public policy on
marriage between Filipinos exists, no divorce
decree dissolving the marriage between them
can ever be given legal or judicial recognition
and enforcement in this jurisdiction.
2.
The Agreement for Separation and Property
Settlement
was void for lack of court approval
The petitioner insists that the Agreement for
Separation and Property Settlement
(Agreement) that the late Atty. Luna and
Eugenia had entered into and executed in
connection with the divorce proceedings before
the CFI of Sto. Domingo in the Dominican
Republic to dissolve and liquidate their
conjugal partnership was enforceable against
Eugenia. Hence, the CA committed reversible
error in decreeing otherwise.
The insistence of the petitioner was
unwarranted.
Considering that Atty. Luna and Eugenia had
not entered into any marriage settlement prior
to their marriage on September 10, 1947, the
system of relative community or conjugal
partnership of gains governed their property
relations. This is because the Spanish Civil
Code, the law then in force at the time of their
marriage, did not specify the property regime
of the spouses in the event that they had not
entered into any marriage settlement before or
at the time of the marriage. Article 119 of the
Civil Code clearly so provides, to wit:
Article 119. The future spouses may in the
marriage settlements agree upon absolute or
relative community of property, or upon
complete separation of property, or upon any
other regime. In the absence of marriage
settlements, or when the same are void, the
system of relative community or conjugal
partnership of gains as established in this
Code, shall govern the property relations
between husband and wife. ACcaET
Article 142 of the Civil Code has defined a
conjugal partnership of gains thusly:
Article 142. By means of the conjugal
partnership of gains the husband and wife
place in a common fund the fruits of their
separate property and the income from their
work or industry, and divide equally, upon the
dissolution of the marriage or of the
partnership, the net gains or benefits obtained
indiscriminately by either spouse during the
marriage.
The conjugal partnership of gains subsists
until terminated for any of various causes of
termination enumerated in Article 175 of the
Civil Code, viz.:
Article 175. The conjugal partnership of
gains terminates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal
separation;
(3) When the marriage is annulled;
(4) In case of judicial separation of
property under Article 191.
The mere execution of the Agreement by Atty.
Luna and Eugenia did not per se dissolve and
liquidate their conjugal partnership of gains.
The approval of the Agreement by a competent
court was still required under Article 190 and
Article 191 of the Civil Code, as follows:
Article 190. In the absence of an express
declaration in the marriage settlements, the
separation of property between spouses
during the marriage shall not take place save
in virtue of a judicial order. (1432a) cCaSHA
Article 191. The husband or the wife may ask
for the separation of property, and it shall be
decreed when the spouse of the petitioner has
been sentenced to a penalty which carries
with it civil interdiction, or has been declared
absent, or when legal separation has been
granted.
xxx xxx xxx
The husband and the wife may agree upon the
dissolution of the conjugal partnership during
the marriage, subject to judicial approval. All
the creditors of the husband and of the wife,
as well as of the conjugal partnership shall be
notified of any petition for judicial approval or
the voluntary dissolution of the conjugal
partnership, so that any such creditors may
appear at the hearing to safeguard his
interests. Upon approval of the petition for
dissolution of the conjugal partnership, the
court shall take such measures as may
protect the creditors and other third persons.
After dissolution of the conjugal partnership,
the provisions of articles 214 and 215 shall
apply. The provisions of this Code concerning
the effect of partition stated in articles 498 to
501 shall be applicable. (1433a)
But was not the approval of the Agreement by
the CFI of Sto. Domingo in the Dominican
Republic sufficient in dissolving and
liquidating the conjugal partnership of gains
between the late Atty. Luna and Eugenia?
The query is answered in the negative. There
is no question that the approval took place
only as an incident of the action for divorce
instituted by Atty. Luna and Eugenia, for,
indeed, the justifications for their execution of
the Agreement were identical to the grounds
raised in the action for divorce. 21 With the
divorce not being itself valid and enforceable
under Philippine law for being contrary to
Philippine public policy and public law, the
approval of the Agreement was not also legally
valid and enforceable under Philippine law.
Consequently, the conjugal partnership of
gains of Atty. Luna and Eugenia subsisted in
the lifetime of their marriage. HSEIAT
3.
Atty. Luna's marriage with Soledad, being
bigamous,
was void; properties acquired during their
marriage
were governed by the rules on co-ownership
What law governed the property relations of
the second marriage between Atty. Luna and
Soledad?
The CA expressly declared that Atty. Luna's
subsequent marriage to Soledad on January
12, 1976 was void for being bigamous, 22 on
the ground that the marriage between Atty.
Luna and Eugenia had not been dissolved by
the Divorce Decree rendered by the CFI of Sto.
Domingo in the Dominican Republic but had
subsisted until the death of Atty. Luna on
July 12, 1997.
The Court concurs with the CA.
In the Philippines, marriages that are
bigamous, polygamous, or incestuous are
void. Article 71 of the Civil Code clearly states:
Article 71. All marriages performed outside
the Philippines in accordance with the laws in
force in the country where they were
performed, and valid there as such, shall also
be valid in this country, except bigamous,
polygamous, or incestuous marriages as
determined by Philippine law.
Bigamy is an illegal marriage committed by
contracting a second or subsequent marriage
before the first marriage has been legally
dissolved, or before the absent spouse has
been declared presumptively dead by means of
a judgment rendered in the proper
proceedings. 23 A bigamous marriage is
considered void ab initio. 24 cDTCIA
Due to the second marriage between Atty.
Luna and the petitioner being void ab initio by
virtue of its being bigamous, the properties
acquired during the bigamous marriage were
governed by the rules on co-ownership,
conformably with Article 144 of the Civil Code,
viz.:
Article 144. When a man and a woman live
together as husband and wife, but they are
not married, or their marriage is void from the
beginning, the property acquired by either or
both of them through their work or industry
or their wages and salaries shall be governed
by the rules on co-ownership.(n)
In such a situation, whoever alleges co-
ownership carried the burden of proof to
confirm such fact. To establish co-ownership,
therefore, it became imperative for the
petitioner to offer proof of her actual
contributions in the acquisition of property.
Her mere allegation of co-ownership, without
sufficient and competent evidence, would
warrant no relief in her favor. As the Court
explained in Saguid v. Court of Appeals: 25
In the cases of Agapay v. Palang, and Tumlos
v. Fernandez, which involved the issue of co-
ownership of properties acquired by the
parties to a bigamous marriage and an
adulterous relationship, respectively, we ruled
that proof of actual contribution in the
acquisition of the property is essential. The
claim of co-ownership of the petitioners
therein who were parties to the bigamous and
adulterous union is without basis because
they failed to substantiate their allegation that
they contributed money in the purchase of the
disputed properties. Also in Adriano v. Court
of Appeals, we ruled that the fact that the
controverted property was titled in the name
of the parties to an adulterous relationship is
not sufficient proof of co-ownership absent
evidence of actual contribution in the
acquisition of the property.
As in other civil cases, the burden of proof
rests upon the party who, as determined by
the pleadings or the nature of the case,
asserts an affirmative issue. Contentions must
be proved by competent evidence and reliance
must be had on the strength of the party's
own evidence and not upon the weakness of
the opponent's defense. This applies with
more vigor where, as in the instant case, the
plaintiff was allowed to present evidence ex
parte. The plaintiff is not automatically
entitled to the relief prayed for. The law gives
the defendant some measure of protection as
the plaintiff must still prove the allegations in
the complaint. Favorable relief can be granted
only after the court is convinced that the facts
proven by the plaintiff warrant such relief.
Indeed, the party alleging a fact has the
burden of proving it and a mere allegation is
not evidence. 26 aDHCEA
The petitioner asserts herein that she
sufficiently proved her actual contributions in
the purchase of the condominium unit in the
aggregate amount of at least P306,572.00,
consisting in direct contributions of
P159,072.00, and in repaying the loans Atty.
Luna had obtained from Premex Financing
and Banco Filipino totaling P146,825.30; 27
and that such aggregate contributions of
P306,572.00 corresponded to almost the
entire share of Atty. Luna in the purchase of
the condominium unit amounting to
P362,264.00 of the unit's purchase price of
P1,449,056.00. 28
The petitioner further asserts that the
lawbooks were paid for solely out of her
personal funds, proof of which Atty. Luna had
even sent her a "thank you" note; 29 that she
had the financial capacity to make the
contributions and purchases; and that Atty.
Luna could not acquire the properties on his
own due to the meagerness of the income
derived from his law practice.
Did the petitioner discharge her burden of
proof on the co-ownership?
In resolving the question, the CA entirely
debunked the petitioner's assertions on her
actual contributions through the following
findings and conclusions, namely:
SOLEDAD was not able to prove by
preponderance of evidence that her own
independent funds were used to buy the law
office condominium and the law books subject
matter in contention in this case proof that
was required for Article 144 of the New Civil
Code and Article 148 of the Family Code to
apply as to cases where properties were
acquired by a man and a woman living
together as husband and wife but not married,
or under a marriage which was void ab initio.
Under Article 144 of the New Civil Code, the
rules on co-ownership would govern. But this
was not readily applicable to many situations
and thus it created a void at first because it
applied only if the parties were not in any way
incapacitated or were without impediment to
marry each other (for it would be absurd to
create a co-ownership where there still exists
a prior conjugal partnership or absolute
community between the man and his lawful
wife). This void was filled upon adoption of the
Family Code. Article 148 provided that: only
the property acquired by both of the parties
through their actual joint contribution of
money, property or industry shall be owned in
common and in proportion to their respective
contributions. Such contributions and
corresponding shares were prima facie
presumed to be equal. However, for this
presumption to arise, proof of actual
contribution was required. The same rule and
presumption was to apply to joint deposits of
money and evidence of credit. If one of the
parties was validly married to another, his or
her share in the co-ownership accrued to the
absolute community or conjugal partnership
existing in such valid marriage. If the party
who acted in bad faith was not validly married
to another, his or her share shall be forfeited
in the manner provided in the last paragraph
of the Article 147. The rules on forfeiture
applied even if both parties were in bad faith.
SDTIHA
Co-ownership was the exception while
conjugal partnership of gains was the strict
rule whereby marriage was an inviolable social
institution and divorce decrees are not
recognized in the Philippines, as was held by
the Supreme Court in the case of Tenchavez
vs. Escao, G.R. No. L-19671, November 29,
1965, 15 SCRA 355, thus:
xxx xxx xxx
As to the 25/100 pro-indiviso share of ATTY.
LUNA in the condominium unit, SOLEDAD
failed to prove that she made an actual
contribution to purchase the said property.
She failed to establish that the four (4) checks
that she presented were indeed used for the
acquisition of the share of ATTY. LUNA in the
condominium unit. This was aptly explained
in the Decision of the trial court, viz.:
". . . The first check, Exhibit "M" for
P55,000.00 payable to Atty. Teresita Cruz
Sison was issued on January 27, 1977, which
was thirteen (13) months before the
Memorandum of Agreement, Exhibit "7" was
signed. Another check issued on April 29,
1978 in the amount of P97,588.89, Exhibit "P"
was payable to Banco Filipino. According to
the plaintiff, this was in payment of the loan of
Atty. Luna. The third check which was for
P49,236.00 payable to PREMEX was dated
May 19, 1979, also for payment of the loan of
Atty. Luna. The fourth check, Exhibit "M", for
P4,072.00 was dated December 17, 1980.
None of the foregoing prove that the amounts
delivered by plaintiff to the payees were for the
acquisition of the subject condominium unit.
The connection was simply not established. . .
." EDcIAC
SOLEDAD's claim that she made a cash
contribution of P100,000.00 is
unsubstantiated. Clearly, there is no basis for
SOLEDAD's claim of co-ownership over the
25/100 portion of the condominium unit and
the trial court correctly found that the same
was acquired through the sole industry of
ATTY. LUNA, thus:
"The Deed of Absolute Sale, Exhibit "9",
covering the condominium unit was in the
name of Atty. Luna, together with his partners
in the law firm. The name of the plaintiff does
not appear as vendee or as the spouse of Atty.
Luna. The same was acquired for the use of
the Law firm of Atty. Luna. The loans from
Allied Banking Corporation and Far East Bank
and Trust Company were loans of Atty. Luna
and his partners and plaintiff does not have
evidence to show that she paid for them fully
or partially. . . ."
The fact that CCT No. 4779 and subsequently,
CCT No. 21761 were in the name of "JUAN
LUCES LUNA, married to Soledad L. Luna"
was no proof that SOLEDAD was a co-owner
of the condominium unit. Acquisition of title
and registration thereof are two different acts.
It is well settled that registration does not
confer title but merely confirms one already
existing. The phrase "married to" preceding
"Soledad L. Luna" is merely descriptive of the
civil status of ATTY. LUNA.
SOLEDAD, the second wife, was not even a
lawyer. So it is but logical that SOLEDAD had
no participation in the law firm or in the
purchase of books for the law firm. SOLEDAD
failed to prove that she had anything to
contribute and that she actually purchased or
paid for the law office amortization and for the
law books. It is more logical to presume that it
was ATTY. LUNA who bought the law office
space and the law books from his earnings
from his practice of law rather than
embarrassingly beg or ask from SOLEDAD
money for use of the law firm that he headed.
30 STcEaI
The Court upholds the foregoing findings and
conclusions by the CA both because they were
substantiated by the records and because we
have not been shown any reason to revisit and
undo them. Indeed, the petitioner, as the
party claiming the co-ownership, did not
discharge her burden of proof. Her mere
allegations on her contributions, not being
evidence, 31 did not serve the purpose. In
contrast, given the subsistence of the first
marriage between Atty. Luna and Eugenia, the
presumption that Atty. Luna acquired the
properties out of his own personal funds and
effort remained. It should then be justly
concluded that the properties in litis legally
pertained to their conjugal partnership of
gains as of the time of his death.
Consequently, the sole ownership of the
25/100 pro indiviso share of Atty. Luna in the
condominium unit, and of the lawbooks
pertained to the respondents as the lawful
heirs of Atty. Luna.
WHEREFORE, the Court AFFIRMS the
decision promulgated on November 11, 2005;
and ORDERS the petitioner to pay the costs of
suit.
SO ORDERED.
Sereno, C.J., Leonardo-de Castro, Villarama,
Jr. and Reyes, JJ., concur.
SECOND DIVISION
[G.R. No. 152577. September 21, 2005.]
REPUBLIC OF THE PHILIPPINES,
petitioner, vs. CRASUS L. IYOY,
respondent.
The Solicitor General for petitioner.
Singco & Cagara Law Office for respondent.
SYLLABUS
1. CIVIL LAW; FAMILY CODE;
PSYCHOLOGICAL INCAPACITY; TOTALITY OF
EVIDENCE PRESENTED BY RESPONDENT
MISERABLY FAILED TO ESTABLISH
ALLEGED PSYCHOLOGICAL INCAPACITY OF
HIS WIFE. Using the guidelines established
by jurisprudence, this Court finds that the
totality of evidence presented by respondent
Crasus failed miserably to establish the
alleged psychological incapacity of his wife
Fely; therefore, there is no basis for declaring
their marriage null and void under Article 36
of the Family Code of the Philippines. The only
substantial evidence presented by respondent
Crasus before the RTC was his testimony,
which can be easily put into question for being
self-serving, in the absence of any other
corroborating evidence. He submitted only two
other pieces of evidence: (1) the Certification
on the recording with the Register of Deeds of
the Marriage Contract between respondent
Crasus and Fely, such marriage being
celebrated on 16 December 1961; and (2) the
invitation to the wedding of Crasus, Jr., their
eldest son, in which Fely used her American
husband's surname. Even considering the
admissions made by Fely herself in her
Answer to respondent Crasus's Complaint
filed with the RTC, the evidence is not enough
to convince this Court that Fely had such a
grave mental illness that prevented her from
assuming the essential obligations of
marriage. CHATEa
2. ID.; ID.; ID.; ARTICLE 36 OF THE
FAMILY CODE CONTEMPLATES DOWNRIGHT
INCAPACITY OR INABILITY TO TAKE
COGNIZANCE OF AND ASSUME THE BASIC
MARITAL OBLIGATIONS. It is worthy to
emphasize that Article 36 of the Family Code
of the Philippines contemplates downright
incapacity or inability to take cognizance of
and to assume the basic marital obligations;
not a mere refusal, neglect or difficulty, much
less, ill will, on the part of the errant spouse.
Irreconcilable differences, conflicting
personalities, emotional immaturity and
irresponsibility, physical abuse, habitual
alcoholism, sexual infidelity or perversion, and
abandonment, by themselves, also do not
warrant a finding of psychological incapacity
under the said Article. As has already been
stressed by this Court in previous cases,
Article 36 "is not to be confused with a divorce
law that cuts the marital bond at the time the
causes therefore manifest themselves. It refers
to a serious psychological illness afflicting a
party even before the celebration of marriage.
It is a malady so grave and so permanent as to
deprive one of awareness of the duties and
responsibilities of the matrimonial bond one is
about to assume."
3. ID.; ID.; ID.; THE CHARACTERISTICS,
BEHAVIOUR AND ACTS OF RESPONDENT'S
WIFE DO NOT SATISFACTORILY ESTABLISH
A PSYCHOLOGICAL OR MENTAL DEFECT
THAT IS SERIOUS OR GRAVE AND WHICH
HAS BEEN IN EXISTENCE AT THE TIME OF
CELEBRATION OF THE MARRIAGE, AND IS
INCURABLE. Fely's hot-temper, nagging,
and extravagance; her abandonment of
respondent Crasus; her marriage to an
American; and even her flaunting of her
American family and her American surname,
may have hurt and embarrassed respondent
Crasus and the rest of the family.
Nonetheless, the afore-described
characteristics, behavior, and acts of Fely do
not satisfactorily establish a psychological or
mental defect that is serious or grave, and
which has been in existence at the time of
celebration of the marriage, and is incurable.
Even when the rules have been relaxed and
the personal examination of Fely by a
psychiatrist or psychologist is no longer
mandatory for the declaration of nullity of
their marriage under Article 36 of the Family
Code of the Philippines, the totality of evidence
presented during trial by respondent Crasus,
as the spouse seeking the declaration of
nullity of marriage, must still prove the
gravity, judicial antecedence, and incurability
of the alleged psychological incapacity; which,
it failed to do so herein. cCAaHD
4. ID.; ID.; ID.; BY ITS PLAIN AND
LITERAL INTERPRETATION, ARTICLE 26,
PARAGRAPH 2 OF THE FAMILY CODE IS NOT
APPLICABLE TO THE CASE OF RESPONDENT
AND HIS WIFE BECAUSE AT THE TIME THE
LATTER OBTAINED HER DIVORCE, SHE WAS
STILL A FILIPINO CITIZEN. As it is worded,
Article 26, paragraph 2, refers to a special
situation wherein one of the married couple is
a foreigner who divorces his or her Filipino
spouse. By its plain and literal interpretation,
the said provision cannot be applied to the
case of respondent Crasus and his wife Fely
because at the time Fely obtained her divorce,
she was still a Filipino citizen. Although the
exact date was not established, Fely herself
admitted in her Answer filed before the RTC
that she obtained a divorce from respondent
Crasus sometime after she left for the United
States in 1984, after which she married her
American husband in 1985. In the same
Answer, she alleged that she had been an
American citizen since 1988. At the time she
filed for divorce, Fely was still a Filipino
citizen, and pursuant to the nationality
principle embodied in Article 15 of the Civil
Code of the Philippines, she was still bound by
Philippine laws on family rights and duties,
status, condition, and legal capacity, even
when she was already living abroad.
Philippine laws, then and even until now, do
not allow and recognize divorce between
Filipino spouses. Thus, Fely could not have
validly obtained a divorce from respondent
Crasus.
5. ID.; ID.; ID.; THE SOLICITOR
GENERAL, AS THE PRINCIPAL LAW OFFICER
AND LEGAL DEFENDER OF THE
GOVERNMENT IS AUTHORIZED TO
INTERVENE ON BEHALF OF THE REPUBLIC
IN PROCEEDINGS FOR ANNULMENT AND
DECLARATION OF NULLITY OF MARRIAGE.
That Article 48 does not expressly mention
the Solicitor General does not bar him or his
Office from intervening in proceedings for
annulment or declaration of nullity of
marriages. Executive Order No. 292, otherwise
known as the Administrative Code of 1987,
appoints the Solicitor General as the principal
law officer and legal defender of the
Government. His Office is tasked to represent
the Government of the Philippines, its
agencies and instrumentalities and its officials
and agents in any litigation, proceeding,
investigation or matter requiring the services
of lawyers. The Office of the Solicitor General
shall constitute the law office of the
Government and, as such, shall discharge
duties requiring the services of lawyers. The
intent of Article 48 of the Family Code of the
Philippines is to ensure that the interest of the
State is represented and protected in
proceedings for annulment and declaration of
nullity of marriages by preventing collusion
between the parties, or the fabrication or
suppression of evidence; and, bearing in mind
that the Solicitor General is the principal law
officer and legal defender of the land, then his
intervention in such proceedings could only
serve and contribute to the realization of such
intent, rather than thwart it. AEDISC
6. ID.; ID.; ID.; ONLY THE SOLICITOR
GENERAL IS AUTHORIZED TO BRING OR
DEFEND ACTIONS ON BEHALF OF THE
PEOPLE OR THE REPUBLIC OF THE
PHILIPPINES ONCE THE CASE IS BROUGHT
BEFORE THE COURT OR THE COURT OF
APPEALS. The general rule is that only the
Solicitor General is authorized to bring or
defend actions on behalf of the People or the
Republic of the Philippines once the case is
brought before this Court or the Court of
Appeals. While it is the prosecuting attorney
or fiscal who actively participates, on behalf of
the State, in a proceeding for annulment or
declaration of nullity of marriage before the
RTC, the Office of the Solicitor General takes
over when the case is elevated to the Court of
Appeals or this Court. Since it shall be
eventually responsible for taking the case to
the appellate courts when circumstances
demand, then it is only reasonable and
practical that even while the proceeding is still
being held before the RTC, the Office of the
Solicitor General can already exercise
supervision and control over the conduct of
the prosecuting attorney or fiscal therein to
better guarantee the protection of the interests
of the State.
7. ID.; ID.; ID.; AUTHORITY OF THE
SOLICITOR GENERAL TO INTERVENE AND
TAKE PART IN PROCEEDINGS FOR
ANNULMENT AND DECLARATION OF
NULLITY OF MARRIAGE IS WELL-SETTLED
AND INDUBITABLE. This Court had already
recognized and affirmed the role of the
Solicitor General in several cases for
annulment and declaration of nullity of
marriages that were appealed before it,
summarized as follows in the case of Ancheta
v. Ancheta In the case of Republic v. Court
of Appeals [268 SCRA 198 (1997)], this Court
laid down the guidelines in the interpretation
and application of Art. 48 of the Family Code,
one of which concerns the role of the
prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the State: (8)
The trial court must order the prosecuting
attorney or fiscal and the Solicitor General to
appear as counsel for the state. No decision
shall be handed down unless the Solicitor
General issues a certification, which will be
quoted in the decision, briefly stating therein
his reasons for his agreement or opposition,
as the case may be, to the petition. The
Solicitor General, along with the prosecuting
attorney, shall submit to the court such
certification within fifteen (15) days from the
date the case is deemed submitted for
resolution of the court. The Solicitor General
shall discharge the equivalent function of the
defensor vinculi contemplated under Canon
1095. [Id., at 213] This Court in the case of
Malcampo-Sin v. Sin [355 SCRA 285 (2001)]
reiterated its pronouncement in Republic v.
Court of Appeals [Supra.] regarding the role of
the prosecuting attorney or fiscal and the
Solicitor General to appear as counsel for the
State. . . . Finally, the issuance of this Court
of the Rule on Declaration of Absolute Nullity
of Void Marriages and Annulment of Voidable
Marriages, which became effective on 15
March 2003, should dispel any other doubts
of respondent Crasus as to the authority of
the Solicitor General to file the instant Petition
on behalf of the State. The Rule recognizes the
authority of the Solicitor General to intervene
and take part in the proceedings for
annulment and declaration of nullity of
marriages before the RTC and on appeal to
higher courts.
DECISION
CHICO-NAZARIO, J p:
In this Petition for Review on Certiorari under
Rule 45 of the Rules of Court, petitioner
Republic of the Philippines, represented by the
Office of the Solicitor General, prays for the
reversal of the Decision of the Court of
Appeals in CA-G.R. CV No. 62539, dated 30
July 2001, 1 affirming the Judgment of the
Regional Trial Court (RTC) of Cebu City,
Branch 22, in Civil Case No. CEB-20077,
dated 30 October 1998, 2 declaring the
marriage between respondent Crasus L. Iyoy
and Fely Ada Rosal-Iyoy null and void on the
basis of Article 36 of the Family Code of the
Philippines. DSCIEa
The proceedings before the RTC commenced
with the filing of a Complaint 3 for declaration
of nullity of marriage by respondent Crasus on
25 March 1997. According to the said
Complaint, respondent Crasus married Fely
on 16 December 1961 at Bradford Memorial
Church, Jones Avenue, Cebu City. As a result
of their union, they had five children
Crasus, Jr., Daphne, Debbie, Calvert, and
Carlos who are now all of legal ages. After
the celebration of their marriage, respondent
Crasus discovered that Fely was "hot-
tempered, a nagger and extravagant." In 1984,
Fely left the Philippines for the United States
of America (U.S.A.), leaving all of their five
children, the youngest then being only six
years old, to the care of respondent Crasus.
Barely a year after Fely left for the U.S.A.,
respondent Crasus received a letter from her
requesting that he sign the enclosed divorce
papers; he disregarded the said request.
Sometime in 1985, respondent Crasus
learned, through the letters sent by Fely to
their children, that Fely got married to an
American, with whom she eventually had a
child. In 1987, Fely came back to the
Philippines with her American family, staying
at Cebu Plaza Hotel in Cebu City. Respondent
Crasus did not bother to talk to Fely because
he was afraid he might not be able to bear the
sorrow and the pain she had caused him. Fely
returned to the Philippines several times
more: in 1990, for the wedding of their eldest
child, Crasus, Jr.; in 1992, for the brain
operation of their fourth child, Calvert; and in
1995, for unknown reasons. Fely continued to
live with her American family in New Jersey,
U.S.A. She had been openly using the
surname of her American husband in the
Philippines and in the U.S.A. For the wedding
of Crasus, Jr., Fely herself had invitations
made in which she was named as "Mrs. Fely
Ada Micklus." At the time the Complaint was
filed, it had been 13 years since Fely left and
abandoned respondent Crasus, and there was
no more possibility of reconciliation between
them. Respondent Crasus finally alleged in his
Complaint that Fely's acts brought danger and
dishonor to the family, and clearly
demonstrated her psychological incapacity to
perform the essential obligations of marriage.
Such incapacity, being incurable and
continuing, constitutes a ground for
declaration of nullity of marriage under Article
36, in relation to Articles 68, 70, and 72, of
the Family Code of the Philippines. ITDHSE
Fely filed her Answer and Counterclaim 4 with
the RTC on 05 June 1997. She asserted
therein that she was already an American
citizen since 1988 and was now married to
Stephen Micklus. While she admitted being
previously married to respondent Crasus and
having five children with him, Fely refuted the
other allegations made by respondent Crasus
in his Complaint. She explained that she was
no more hot-tempered than any normal
person, and she may had been indignant at
respondent Crasus on certain occasions but it
was because of the latter's drunkenness,
womanizing, and lack of sincere effort to find
employment and to contribute to the
maintenance of their household. She could
not have been extravagant since the family
hardly had enough money for basic needs.
Indeed, Fely left for abroad for financial
reasons as respondent Crasus had no job and
what she was then earning as the sole
breadwinner in the Philippines was
insufficient to support their family. Although
she left all of her children with respondent
Crasus, she continued to provide financial
support to them, as well as, to respondent
Crasus. Subsequently, Fely was able to bring
her children to the U.S.A., except for one,
Calvert, who had to stay behind for medical
reasons. While she did file for divorce from
respondent Crasus, she denied having herself
sent a letter to respondent Crasus requesting
him to sign the enclosed divorce papers. After
securing a divorce from respondent Crasus,
Fely married her American husband and
acquired American citizenship. She argued
that her marriage to her American husband
was legal because now being an American
citizen, her status shall be governed by the
law of her present nationality. Fely also
pointed out that respondent Crasus himself
was presently living with another woman who
bore him a child. She also accused respondent
Crasus of misusing the amount of P90,000.00
which she advanced to him to finance the
brain operation of their son, Calvert. On the
basis of the foregoing, Fely also prayed that
the RTC declare her marriage to respondent
Crasus null and void; and that respondent
Crasus be ordered to pay to Fely the
P90,000.00 she advanced to him, with
interest, plus, moral and exemplary damages,
attorney's fees, and litigation expenses.
EATcHD
After respondent Crasus and Fely had filed
their respective Pre-Trial Briefs, 5 the RTC
afforded both parties the opportunity to
present their evidence. Petitioner Republic
participated in the trial through the Provincial
Prosecutor of Cebu. 6
Respondent Crasus submitted the following
pieces of evidence in support of his Complaint:
(1) his own testimony on 08 September 1997,
in which he essentially reiterated the
allegations in his Complaint; 7 (2) the
Certification, dated 13 April 1989, by the
Health Department of Cebu City, on the
recording of the Marriage Contract between
respondent Crasus and Fely in the Register of
Deeds, such marriage celebration taking place
on 16 December 1961; 8 and (3) the invitation
to the wedding of Crasus, Jr., their eldest son,
wherein Fely openly used her American
husband's surname, Micklus. 9
Fely's counsel filed a Notice, 10 and, later on,
a Motion, 11 to take the deposition of
witnesses, namely, Fely and her children,
Crasus, Jr. and Daphne, upon written
interrogatories, before the consular officers of
the Philippines in New York and California,
U.S.A, where the said witnesses reside.
Despite the Orders 12 and Commissions 13
issued by the RTC to the Philippine Consuls of
New York and California, U.S.A., to take the
depositions of the witnesses upon written
interrogatories, not a single deposition was
ever submitted to the RTC. Taking into
account that it had been over a year since
respondent Crasus had presented his evidence
and that Fely failed to exert effort to have the
case progress, the RTC issued an Order, dated
05 October 1998, 14 considering Fely to have
waived her right to present her evidence. The
case was thus deemed submitted for decision.
Not long after, on 30 October 1998, the RTC
promulgated its Judgment declaring the
marriage of respondent Crasus and Fely null
and void ab initio, on the basis of the following
findings
The ground bearing defendant's psychological
incapacity deserves a reasonable
consideration. As observed, plaintiff's
testimony is decidedly credible. The Court
finds that defendant had indeed exhibited
unmistakable signs of psychological
incapacity to comply with her marital duties
such as striving for family unity, observing
fidelity, mutual love, respect, help and
support. From the evidence presented,
plaintiff adequately established that the
defendant practically abandoned him. She
obtained a divorce decree in the United States
of America and married another man and has
establish [sic] another family of her own.
Plaintiff is in an anomalous situation, wherein
he is married to a wife who is already married
to another man in another country. ACTESI
Defendant's intolerable traits may not have
been apparent or manifest before the
marriage, the FAMILY CODE nonetheless
allows the annulment of the marriage provided
that these were eventually manifested after
the wedding. It appears to be the case in this
instance.
Certainly defendant's posture being an
irresponsible wife erringly reveals her very low
regard for that sacred and inviolable
institution of marriage which is the foundation
of human society throughout the civilized
world. It is quite evident that the defendant is
bereft of the mind, will and heart to comply
with her marital obligations, such incapacity
was already there at the time of the marriage
in question is shown by defendant's own
attitude towards her marriage to plaintiff.
In sum, the ground invoked by plaintiff which
is defendant's psychological incapacity to
comply with the essential marital obligations
which already existed at the time of the
marriage in question has been satisfactorily
proven. The evidence in herein case
establishes the irresponsibility of defendant
Fely Ada Rosal Iyoy, firmly.
Going over plaintiff's testimony which is
decidedly credible, the Court finds that the
defendant had indeed exhibited unmistakable
signs of such psychological incapacity to
comply with her marital obligations. These are
her excessive disposition to material things
over and above the marital stability. That such
incapacity was already there at the time of the
marriage in question is shown by defendant's
own attitude towards her marriage to plaintiff.
And for these reasons there is a legal ground
to declare the marriage of plaintiff Crasus L.
Iyoy and defendant Fely Ada Rosal Iyoy null
and void ab initio. 15
Petitioner Republic, believing that the afore-
quoted Judgment of the RTC was contrary to
law and evidence, filed an appeal with the
Court of Appeals. The appellate court, though,
in its Decision, dated 30 July 2001, affirmed
the appealed Judgment of the RTC, finding no
reversible error therein. It even offered
additional ratiocination for declaring the
marriage between respondent Crasus and Fely
null and void, to wit
Defendant secured a divorce from plaintiff-
appellee abroad, has remarried, and is now
permanently residing in the United States.
Plaintiff-appellee categorically stated this as
one of his reasons for seeking the declaration
of nullity of their marriage. . .
xxx xxx xxx
Article 26 of the Family Code provides:
"Art. 26. All marriages solemnized outside
the Philippines in accordance with the laws in
force in the country where they were
solemnized, and valid there as such, shall also
be valid in this country, except those
prohibited under Articles 35(1), (4), (5) and (6),
36, 37 and 38. caIACE
"WHERE A MARRIAGE BETWEEN A FILIPINO
CITIZEN AND A FOREIGNER IS VALIDLY
CELEBRATED AND A DIVORCE IS
THEREAFTER VALIDLY OBTAINED ABROAD
BY THE ALIEN SPOUSE CAPACITATING HIM
OR HER TO REMARRY, THE FILIPINO
SPOUSE SHALL LIKEWISE HAVE CAPACITY
TO REMARRY UNDER PHILIPPINE LAW."
The rationale behind the second paragraph of
the above-quoted provision is to avoid the
absurd and unjust situation of a Filipino
citizen still being married to his or her alien
spouse, although the latter is no longer
married to the Filipino spouse because he or
she has obtained a divorce abroad. In the case
at bench, the defendant has undoubtedly
acquired her American husband's citizenship
and thus has become an alien as well. This
Court cannot see why the benefits of Art. 26
aforequoted can not be extended to a Filipino
citizen whose spouse eventually embraces
another citizenship and thus becomes herself
an alien.
It would be the height of unfairness if, under
these circumstances, plaintiff would still be
considered as married to defendant, given her
total incapacity to honor her marital
covenants to the former. To condemn plaintiff
to remain shackled in a marriage that in truth
and in fact does not exist and to remain
married to a spouse who is incapacitated to
discharge essential marital covenants, is verily
to condemn him to a perpetual disadvantage
which this Court finds abhorrent and will not
countenance. Justice dictates that plaintiff be
given relief by affirming the trial court's
declaration of the nullity of the marriage of the
parties. 16
After the Court of Appeals, in a Resolution,
dated 08 March 2002, 17 denied its Motion for
Reconsideration, petitioner Republic filed the
instant Petition before this Court, based on
the following arguments/grounds
I. Abandonment by and sexual infidelity
of respondent's wife do not per se constitute
psychological incapacity. SDEHIa
II. The Court of Appeals has decided
questions of substance not in accord with law
and jurisprudence considering that the Court
of Appeals committed serious errors of law in
ruling that Article 26, paragraph 2 of the
Family Code is inapplicable to the case at bar.
18
In his Comment 19 to the Petition, respondent
Crasus maintained that Fely's psychological
incapacity was clearly established after a full-
blown trial, and that paragraph 2 of Article 26
of the Family Code of the Philippines was
indeed applicable to the marriage of
respondent Crasus and Fely, because the
latter had already become an American
citizen. He further questioned the personality
of petitioner Republic, represented by the
Office of the Solicitor General, to institute the
instant Petition, because Article 48 of the
Family Code of the Philippines authorizes the
prosecuting attorney or fiscal assigned to the
trial court, not the Solicitor General, to
intervene on behalf of the State, in
proceedings for annulment and declaration of
nullity of marriages.
After having reviewed the records of this case
and the applicable laws and jurisprudence,
this Court finds the instant Petition to be
meritorious.
I beyond the means of the party involved. 21
The totality of evidence presented during trial
is insufficient to support the finding of
psychological incapacity of Fely.
Article 36, concededly one of the more
controversial provisions of the Family Code of
the Philippines, reads
ART. 36. A marriage contracted by any
party who, at the time of the celebration, was
psychologically incapacitated to comply with
the essential marital obligations of marriage,
shall likewise be void even if such incapacity
becomes manifest only after its solemnization.
Issues most commonly arise as to what
constitutes psychological incapacity. In a
series of cases, this Court laid down
guidelines for determining its existence.
DcAEIS
In Santos v. Court of Appeals, 20 the term
psychological incapacity was defined, thus
". . . [P]sychological incapacity" should refer to
no less than a mental (not physical) incapacity
that causes a party to be truly cognitive of the
basic marital covenants that concomitantly
must be assumed and discharged by the
parties to the marriage which, as so expressed
by Article 68 of the Family Code, include their
mutual obligations to live together, observe
love, respect and fidelity and render help and
support. There is hardly any doubt that the
intendment of the law has been to confine the
meaning of "psychological incapacity" to the
most serious cases of personality disorders
clearly demonstrative of an utter insensitivity
or inability to give meaning and significance to
the marriage. This psychological condition
must exist at the time the marriage is
celebrated. . .
The psychological incapacity must be
characterized by
(a) Gravity It must be grave or serious
such that the party would be incapable of
carrying out the ordinary duties required in a
marriage;
(b) Juridical Antecedence It must be
rooted in the history of the party antedating
the marriage, although the overt
manifestations may emerge only after the
marriage; and
(c) Incurability It must be incurable or,
even if it were otherwise, the cure would be
More definitive guidelines in the interpretation
and application of Article 36 of the Family
Code of the Philippines were handed down by
this Court in Republic v. Court of Appeals and
Molina, 22 which, although quite lengthy, by
its significance, deserves to be reproduced
below
(1) The burden of proof to show the nullity
of the marriage belongs to the plaintiff. Any
doubt should be resolved in favor of the
existence and continuation of the marriage
and against its dissolution and nullity. This is
rooted in the fact that both our Constitution
and our laws cherish the validity of marriage
and unity of the family. Thus, our
Constitution devotes an entire Article on the
Family, recognizing it "as the foundation of the
nation." It decrees marriage as legally
"inviolable," thereby protecting it from
dissolution at the whim of the parties. Both
the family and marriage are to be "protected"
by the state. HaAISC
The Family Code echoes this constitutional
edict on marriage and the family and
emphasizes their permanence, inviolability
and solidarity.
(2) The root cause of the psychological
incapacity must be (a) medically or clinically
identified, (b) alleged in the complaint, (c)
sufficiently proven by experts and (d) clearly
explained in the decision. Article 36 of the
Family Code requires that the incapacity must
be psychological not physical, although its
manifestations and/or symptoms may be
physical. The evidence must convince the
court that the parties, or one of them, was
mentally or psychically ill to such an extent
that the person could not have known the
obligations he was assuming, or knowing
them, could not have given valid assumption
thereof. Although no example of such
incapacity need be given here so as not to
limit the application of the provision under the
principle of ejusdem generis, nevertheless
such root cause must be identified as a
psychological illness and its incapacitating
nature fully explained. Expert evidence may
be given by qualified psychiatrists and clinical
psychologists. 23
(3) The incapacity must be proven to be
existing at "the time of the celebration" of the
marriage. The evidence must show that the
illness was existing when the parties
exchanged their "I do's." The manifestation of
the illness need not be perceivable at such
time, but the illness itself must have attached
at such moment, or prior thereto.
(4) Such incapacity must also be shown to
be medically or clinically permanent or
incurable. Such incurability may be absolute
or even relative only in regard to the other
spouse, not necessarily absolutely against
everyone of the same sex. Furthermore, such
incapacity must be relevant to the assumption
of marriage obligations, not necessarily to
those not related to marriage, like the exercise
of a profession or employment in a job. . .
(5) Such illness must be grave enough to
bring about the disability of the party to
assume the essential obligations of marriage.
Thus, "mild characteriological peculiarities,
mood changes, occasional emotional
outbursts" cannot be accepted as root causes.
The illness must be shown as downright
incapacity or inability, not a refusal, neglect or
difficulty, much less ill will. In other words,
there is a natal or supervening disabling factor
in the person, an adverse integral element in
the personality structure that effectively
incapacitates the person from really accepting
and thereby complying with the obligations
essential to marriage. cTIESD
(6) The essential marital obligations must
be those embraced by Articles 68 up to 71 of
the Family Code as regards the husband and
wife as well as Articles 220, 221 and 225 of
the same Code in regard to parents and their
children. Such non-complied marital
obligation(s) must also be stated in the
petition, proven by evidence and included in
the text of the decision.
(7) Interpretations given by the National
Appellate Matrimonial Tribunal of the Catholic
Church in the Philippines, while not
controlling or decisive, should be given great
respect by our courts. . .
(8) The trial court must order the
prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the state. No
decision shall be handed down unless the
Solicitor General issues a certification, which
will be quoted in the decision, briefly stating
therein his reasons for his agreement or
opposition, as the case may be, to the petition.
The Solicitor General, along with the
prosecuting attorney, shall submit to the
court such certification within fifteen (15) days
from the date the case is deemed submitted
for resolution of the court. The Solicitor
General shall discharge the equivalent
function of the defensor vinculi contemplated
under Canon 1095. 24
A later case, Marcos v. Marcos, 25 further
clarified that there is no requirement that the
defendant/respondent spouse should be
personally examined by a physician or
psychologist as a condition sine qua non for
the declaration of nullity of marriage based on
psychological incapacity. Accordingly, it is no
longer necessary to allege expert opinion in a
petition under Article 36 of the Family Code of
the Philippines. 26 Such psychological
incapacity, however, must be established by
the totality of the evidence presented during
the trial.
Using the guidelines established by the afore-
mentioned jurisprudence, this Court finds
that the totality of evidence presented by
respondent Crasus failed miserably to
establish the alleged psychological incapacity
of his wife Fely; therefore, there is no basis for
declaring their marriage null and void under
Article 36 of the Family Code of
Philippines. HTDCAS
The only substantial evidence presented by
respondent Crasus before the RTC was his
testimony, which can be easily put into
question for being self-serving, in the absence
of any other corroborating evidence. He
submitted only two other pieces of evidence:
(1) the Certification on the recording with the
Register of Deeds of the Marriage Contract
between respondent Crasus and Fely, such
marriage being celebrated on 16 December
1961; and (2) the invitation to the wedding of
Crasus, Jr., their eldest son, in which Fely
used her American husband's surname. Even
considering the admissions made by Fely
herself in her Answer to respondent Crasus's
Complaint filed with the RTC, the evidence is
not enough to convince this Court that Fely
had such a grave mental illness that
prevented her from assuming the essential
obligations of marriage.
It is worthy to emphasize that Article 36 of the
Family Code of the Philippines contemplates
downright incapacity or inability to take
cognizance of and to assume the basic marital
obligations; not a mere refusal, neglect or
difficulty, much less, ill will, on the part of the
errant spouse. 27 Irreconcilable differences,
conflicting personalities, emotional immaturity
and irresponsibility, physical abuse, habitual
alcoholism, sexual infidelity or perversion, and
abandonment, by themselves, also do not
warrant a finding of psychological incapacity
under the said Article. 28
As has already been stressed by this Court in
previous cases, Article 36 "is not to be
confused with a divorce law that cuts the
marital bond at the time the causes therefore
manifest themselves. It refers to a serious
psychological illness afflicting a party even
before the celebration of marriage. It is a
malady so grave and so permanent as to
deprive one of awareness of the duties and
responsibilities of the matrimonial bond one is
about to assume." 29
Fely's hot-temper, nagging, and extravagance;
her abandonment of respondent Crasus; her
marriage to an American; and even her
flaunting of her American family and her
American surname, may have hurt and
embarrassed respondent Crasus and the rest
of the family. Nonetheless, the afore-described
characteristics, behavior, and acts of Fely do
not satisfactorily establish a psychological or
the mental defect that is serious or grave, and
which has been in existence at the time of
celebration of the marriage, and is incurable.
Even when the rules have been relaxed and
the personal examination of Fely by a
psychiatrist or psychologist is no longer
mandatory for the declaration of nullity of
their marriage under Article 36 of the Family
Code of the Philippines, 30 the totality of
evidence presented during trial by respondent
Crasus, as spouse seeking the declaration of
nullity of marriage, must still prove the
gravity, judicial antecedence, and incurability
of the alleged psychological incapacity; 31
which, it failed to do so herein. HTCAED
Moreover, this Court resolves any doubt shall
be resolved in favor of the validity of the
marriage. 32 No less than the Constitution of
1987 sets the policy to protect and strengthen
the family as the basic social institution and
marriage as the foundation of the family. 33
II
Article 26, paragraph 2 of the Family Code of
the
Philippines is not applicable to the case at
bar.
According to Article 26, paragraph 2 of the
Family Code of the Philippines
Where a marriage between a Filipino citizen
and a foreigner is validly celebrated and a
divorce is thereafter validly obtained abroad
by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall likewise
have capacity to remarry under Philippine law.
As it is worded, Article 26, paragraph 2, refers
to a special situation wherein one of the
married couple is a foreigner who divorces his
or her Filipino spouse. By its plain and literal
interpretation, the said provision cannot be
applied to the case of respondent Crasus and
his wife Fely because at the time Fely obtained
her divorce, she was still a Filipino citizen.
Although the exact date was not established,
Fely herself admitted in her Answer filed
before the RTC that she obtained a divorce
from respondent Crasus sometime after she
left for the United States in 1984, after which
she married her American husband in 1985.
In the same Answer, she alleged that she had
been an American citizen since 1988. At the
time she filed for divorce, Fely was still a
Filipino citizen, and pursuant to the
nationality principle embodied in Article 15 of
the Civil Code of the Philippines, she was still
bound by Philippine laws on family rights and
duties, status, condition, and legal capacity,
even when she was already living abroad.
Philippine laws, then and even until now, do
not allow and recognize divorce between
Filipino spouses. Thus, Fely could not have
validly obtained a divorce from respondent
Crasus. cSCTEH
III
The Solicitor General is authorized to
intervene,
on behalf of the Republic, in proceedings for
annulment and declaration of nullity of
marriages.
Invoking Article 48 of the Family Code of the
Philippines, respondent Crasus argued that
only the prosecuting attorney or fiscal
assigned to the RTC may intervene on behalf
of the State in proceedings for annulment or
declaration of nullity of marriages; hence, the
Office of the Solicitor General had no
personality to file the instant Petition on
behalf of the State. Article 48 provides
ART. 48. In all cases of annulment or
declaration of absolute nullity of marriage, the
Court shall order the prosecuting attorney or
fiscal assigned to it to appear on behalf of the
State to take steps to prevent collusion
between the parties and to take care that the
evidence is not fabricated or suppressed.
That Article 48 does not expressly mention the
Solicitor General does not bar him or his
Office from intervening in proceedings for
annulment or declaration of nullity of
marriages. Executive Order No. 292, otherwise
known as the Administrative Code of 1987,
appoints the Solicitor General as the principal
law officer and legal defender of the
Government. 34 His Office is tasked to
represent the Government of the Philippines,
its agencies and instrumentalities and its
officials and agents in any litigation,
proceeding, investigation or matter requiring
the services of lawyers. The Office of the
Solicitor General shall constitute the law office
of the Government and, as such, shall
discharge duties requiring the services of
lawyers. 35
The intent of Article 48 of the Family Code of
the Philippines is to ensure that the interest of
the State is represented and protected in
proceedings for annulment and declaration of
nullity of marriages by preventing collusion
between the parties, or the fabrication or
suppression of evidence; and, bearing in mind
that the Solicitor General is the principal law
officer and legal defender of the land, then his
intervention in such proceedings could only
serve and contribute to the realization of such
intent, rather than thwart it. DSIaAE
Furthermore, the general rule is that only the
Solicitor General is authorized to bring or
defend actions on behalf of the People or the
Republic of the Philippines once the case is
brought before this Court or the Court of
Appeals. 36 While it is the prosecuting
attorney or fiscal who actively participates, on
behalf of the State, in a proceeding for
annulment or declaration of nullity of
marriage before the RTC, the Office of the
Solicitor General takes over when the case is
elevated to the Court of Appeals or this Court.
Since it shall be eventually responsible for
taking the case to the appellate courts when
circumstances demand, then it is only
reasonable and practical that even while the
proceeding is still being held before the RTC,
the Office of the Solicitor General can already
exercise supervision and control over the
conduct of the prosecuting attorney or fiscal
therein to better guarantee the protection of
the interests of the State.
In fact, this Court had already recognized and
affirmed the role of the Solicitor General in
several cases for annulment and declaration of
nullity of marriages that were appealed before
it, summarized as follows in the case of
Ancheta v. Ancheta 37
In the case of Republic v. Court of Appeals
[268 SCRA 198 (1997)], this Court laid down
the guidelines in the interpretation and
application of Art. 48 of the Family Code, one
of which concerns the role of the prosecuting
attorney or fiscal and the Solicitor General to
appear as counsel for the State:
(8) The trial court must order the
prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the state. No
decision shall be handed down unless the
Solicitor General issues a certification, which
will be quoted in the decision, briefly stating
therein his reasons for his agreement or
opposition, as the case may be, to the petition.
The Solicitor General, along with the
prosecuting attorney, shall submit to the
court such certification within fifteen (15) days
from the date the case is deemed submitted
for resolution of the court. The Solicitor
General shall discharge the equivalent
function of the defensor vinculi contemplated
under Canon 1095. [Id., at 213] IDEHCa
This Court in the case of Malcampo-Sin v. Sin
[355 SCRA 285 (2001)] reiterated its
pronouncement in Republic v. Court of
Appeals [Supra.] regarding the role of the
prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the State. . .
Finally, the issuance of this Court of the Rule
on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable
Marriages, 38 which became effective on 15
March 2003, should dispel any other doubts
of respondent Crasus as to the authority of
the Solicitor General to file the instant Petition
on behalf of the State. The Rule recognizes the
authority of the Solicitor General to intervene
and take part in the proceedings for
annulment and declaration of nullity of
marriages before the RTC and on appeal to
higher courts. The pertinent provisions of the
said Rule are reproduced below
Sec. 5. Contents and form of petition.
xxx xxx xxx
(4) It shall be filed in six copies. The
petitioner shall serve a copy of the petition on
the Office of the Solicitor General and the
Office of the City or Provincial Prosecutor,
within five days from the date of its filing and
submit to the court proof of such service
within the same period.
xxx xxx xxx
Sec. 18. Memoranda. The court may
require the parties and the public prosecutor,
in consultation with the Office of the Solicitor
General, to file their respective memoranda in
support of their claims within fifteen days
from the date the trial is terminated. It may
require the Office of the Solicitor General to
file its own memorandum if the case is of
significant interest to the State. No other
pleadings or papers may be submitted without
leave of court. After the lapse of the period
herein provided, the case will be considered
submitted for decision, with or without the
memoranda. DSacAE
Sec. 19. Decision.
xxx xxx xxx
(2) The parties, including the Solicitor
General and the public prosecutor, shall be
served with copies of the decision personally
or by registered mail. If the respondent
summoned by publication failed to appear in
the action, the dispositive part of the decision
shall be published once in a newspaper of
general circulation.
(3) The decision becomes final upon the
expiration of fifteen days from notice to the
parties. Entry of judgment shall be made if no
motion for reconsideration or new trial, or
appeal is filed by any of the parties, the public
prosecutor, or the Solicitor General.
xxx xxx xxx
Sec. 20. Appeal.
xxx xxx xxx
(2) Notice of Appeal. An aggrieved party
or the Solicitor General may appeal from the
decision by filing a Notice of Appeal within
fifteen days from notice of denial of the motion
for reconsideration or new trial. The appellant
shall serve a copy of the notice of appeal on
the adverse parties.
Given the foregoing, this Court arrives at a
conclusion contrary to those of the RTC and
the Court of Appeals, and sustains the validity
and existence of the marriage between
respondent Crasus and Fely. At most, Fely's
abandonment, sexual infidelity, and bigamy,
give respondent Crasus grounds to file for
legal separation under Article 55 of the Family
Code of the Philippines, but not for
declaration of nullity of marriage under Article
36 of the same Code. While this Court
commiserates with respondent Crasus for
being continuously shackled to what is now a
hopeless and loveless marriage, this is one of
those situations where neither law nor society
can provide the specific answer to every
individual problem. 39
WHEREFORE, the Petition is GRANTED and
the assailed Decision of the Court of Appeals
in CA-G.R. CV No. 62539, dated 30 July 2001,
affirming the Judgment of the RTC of Cebu
City, Branch 22, in Civil Case No. CEB-20077,
dated 30 October 1998, is REVERSED and
SET ASIDE. The marriage of respondent
Crasus L. Iyoy and Fely Ada Rosal-Iyoy
remains valid and subsisting. ISDCaT
SO ORDERED.
Puno, Austria-Martinez, Callejo, Sr. and Tinga, JJ., concur.
FIRST DIVISION
[G.R. No. 154380. October 5, 2005.]
REPUBLIC OF THE PHILIPPINES,
petitioner, vs. CIPRIANO ORBECIDO III,
respondent.
SYLLABUS
1. STATUTORY CONSTRUCTION;
STATUTES; INTERPRETATION THEREOF;
STATUTE CONSTRUED ACCORDING TO ITS
SPIRIT AND REASON WHEN ITS EXACT AND
LITERAL IMPORT WOULD SANCTION
ABSURDITY AND INJUSTICE; CASE AT BAR.
Where the interpretation of a statute
according to its exact and literal import would
lead to mischievous results or contravene the
clear purpose of the legislature, it should be
construed according to its spirit and reason
disregarding as far as necessary the letter of
the law. A statute may therefore be extended
to cases not within the literal meaning of its
terms, so long as they come within its spirit or
intent.
2. CIVIL LAW; FAMILY CODE;
PARAGRAPH 2, ARTICLE 26; APPLICATION;
FILIPINO SPOUSE SHOULD ALSO BE
ALLOWED TO REMARRY IF ALIEN SPOUSE
OBTAINS A DIVORCE. Taking into
consideration the legislative intent and
applying the rule of reason, we hold that
Paragraph 2 of Article 26 should be
interpreted to include cases involving parties
who, at the time of the celebration of the
marriage were Filipino citizens, but later on,
one of them becomes naturalized as a foreign
citizen and obtains as divorce decree. The
Filipino spouse should likewise be allowed to
remarry as if the other party were a foreigner
at the time of the solemnization of the
marriage. To rule otherwise would be to
sanction absurdity and injustice. DaIAcC
3. ID.; ID.; ID.; ID.; ELEMENTS. We
state the twin elements for the application of
Paragraph 2 of Article 26 as follows: 1. There
is a valid marriage that has been celebrated
between a Filipino citizen and a foreigner, and
2. A valid divorce is obtained abroad by the
alien spouse capacitating him or her to
remarry.
4. ID.; ID.; ID.; ID.; RECKONING POINT IS
THE CITIZENSHIP OF THE PARTIES WHEN
DIVORCE IS OBTAINED ABROAD BY ALIEN
SPOUSE CAPACITATING THE LATTER TO
REMARRY; CASE AT BAR. The reckoning
point is not the citizenship of the parties at
the time of the celebration of the marriage, but
their citizenship at the time a valid divorce is
obtained abroad by the alien spouse
capacitating the latter to remarry. In this case,
when Cipriano's wife was naturalized as an
American citizen, there was still a valid
marriage that has been celebrated between
her and Cipriano. As fate would have it, the
naturalized alien wife subsequently obtained a
valid divorce capacitating her to remarry.
Clearly, the twin requisites for the application
of Paragraph 2 of Article 26 are both present
in this case. Thus Cipriano, the "divorced"
Filipino spouse, should be allowed to remarry.
TaDSCA
DECISION
QUISUMBING, J p:
Given a valid marriage between two Filipino
citizens, where one party is later naturalized
as a foreign citizen and obtains a valid divorce
decree capacitating him or her to remarry, can
the Filipino spouse likewise remarry under
Philippine law?
Before us is a case of first impression that
behooves the Court to make a definite ruling
on this apparently novel question, presented
as a pure question of law. EDHCSI
In this petition for review, the Solicitor
General assails the Decision 1 dated May 15,
2002, of the Regional Trial Court of Molave,
Zamboanga del Sur, Branch 23 and its
Resolution 2 dated July 4, 2002 denying the
motion for reconsideration. The court a quo
had declared that herein respondent Cipriano
Orbecido III is capacitated to remarry. The
fallo of the impugned Decision reads:
WHEREFORE, by virtue of the provision of the
second paragraph of Art. 26 of the Family
Code and by reason of the divorce decree
obtained against him by his American wife,
the petitioner is given the capacity to remarry
under the Philippine Law.
IT IS SO ORDERED. 3
The factual antecedents, as narrated by the
trial court, are as follows.
On May 24, 1981, Cipriano Orbecido III
married Lady Myros M. Villanueva at the
United Church of Christ in the Philippines in
Lam-an, Ozamis City. Their marriage was
blessed with a son and a daughter, Kristoffer
Simbortriz V. Orbecido and Lady Kimberly V.
Orbecido.
In 1986, Cipriano's wife left for the United
States bringing along their son Kristoffer. A
few years later, Cipriano discovered that his
wife had been naturalized as an American
citizen.
Sometime in 2000, Cipriano learned from his
son that his wife had obtained a divorce
decree and then married a certain Innocent
Stanley. She, Stanley and her child by him
currently live at 5566 A. Walnut Grove
Avenue, San Gabriel, California.
Cipriano thereafter filed with the trial court a
petition for authority to remarry invoking
Paragraph 2 of Article 26 of the Family Code.
No opposition was filed. Finding merit in the
petition, the court granted the same. The
Republic, herein petitioner, through the Office
of the Solicitor General (OSG), sought
reconsideration but it was denied.
In this petition, the OSG raises a pure
question of law:
WHETHER OR NOT RESPONDENT CAN
REMARRY UNDER ARTICLE 26 OF THE
FAMILY CODE 4
The OSG contends that Paragraph 2 of Article
26 of the Family Code is not applicable to the
instant case because it only applies to a valid
mixed marriage; that is, a marriage celebrated
between a Filipino citizen and an alien. The
proper remedy, according to the OSG, is to file
a petition for annulment or for legal
separation. 5 Furthermore, the OSG argues
there is no law that governs respondent's
situation. The OSG posits that this is a matter
of legislation and not of judicial determination.
6 Paragraph 2 of Article 26 of the Family Code
For his part, respondent admits that Article
26 is not directly applicable to his case but
insists that when his naturalized alien wife
obtained a divorce decree which capacitated
her to remarry, he is likewise capacitated by
operation of law pursuant to Section 12,
Article II of the Constitution. 7
At the outset, we note that the petition for
authority to remarry filed before the trial court
actually constituted a petition for declaratory
relief. In this connection, Section 1, Rule 63 of
the Rules of Court provides:
RULE 63
DECLARATORY RELIEF AND SIMILAR
REMEDIES
Section 1. Who may file petition Any
person interested under a deed, will, contract
or other written instrument, or whose rights
are affected by a statute, executive order or
regulation, ordinance, or other governmental
regulation may, before breach or violation
thereof, bring an action in the appropriate
Regional Trial Court to determine any
question of construction or validity arising,
and for a declaration of his rights or duties,
thereunder.
xxx xxx xxx
The requisites of a petition for declaratory
relief are: (1) there must be a justiciable
controversy; (2) the controversy must be
between persons whose interests are adverse;
(3) that the party seeking the relief has a legal
interest in the controversy; and (4) that the
issue is ripe for judicial determination. 8
This case concerns the applicability of
Paragraph 2 of Article 26 to a marriage
between two Filipino citizens where one later
acquired alien citizenship, obtained a divorce
decree, and remarried while in the U.S.A. The
interests of the parties are also adverse, as
petitioner representing the State asserts its
duty to protect the institution of marriage
while respondent, a private citizen, insists on
a declaration of his capacity to remarry.
Respondent, praying for relief, has legal
interest in the controversy. The issue raised is
also ripe for judicial determination inasmuch
as when respondent remarries, litigation
ensues and puts into question the validity of
his second marriage. SCHIcT
Coming now to the substantive issue, does
apply to the case of respondent? Necessarily,
we must dwell on how this provision had come
about in the first place, and what was the
intent of the legislators in its enactment?
Brief Historical Background
On July 6, 1987, then President Corazon
Aquino signed into law Executive Order No.
209, otherwise known as the "Family Code,"
which took effect on August 3, 1988. Article
26 thereof states:
All marriages solemnized outside the
Philippines in accordance with the laws in
force in the country where they were
solemnized, and valid there as such, shall also
be valid in this country, except those
prohibited under Articles 35, 37, and 38.
On July 17, 1987, shortly after the signing of
the original Family Code, Executive Order No.
227 was likewise signed into law, amending
Articles 26, 36, and 39 of the Family Code. A
second paragraph was added to Article 26. As
so amended, it now provides:
ART. 26. All marriages solemnized outside
the Philippines in accordance with the laws in
force in the country where they were
solemnized, and valid there as such, shall also
be valid in this country, except those
prohibited under Articles 35(1), (4), (5) and (6),
36, 37 and 38.
Where a marriage between a Filipino citizen
and a foreigner is validly celebrated and a
divorce is thereafter validly obtained abroad
by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall have
capacity to remarry under Philippine law.
(Emphasis supplied)
On its face, the foregoing provision does not
appear to govern the situation presented by
the case at hand. It seems to apply only to
cases where at the time of the celebration of
the marriage, the parties are a Filipino citizen
and a foreigner. The instant case is one where
at the time the marriage was solemnized, the
parties were two Filipino citizens, but later on,
the wife was naturalized as an American
citizen and subsequently obtained a divorce
granting her capacity to remarry, and indeed
she remarried an American citizen while
residing in the U.S.A.
Noteworthy, in the Report of the Public
Hearings 9 on the Family Code, the Catholic
Bishops' Conference of the Philippines (CBCP)
registered the following objections to
Paragraph 2 of Article 26:
1. The rule is discriminatory. It
discriminates against those whose spouses
are Filipinos who divorce them abroad. These
spouses who are divorced will not be able to
re-marry, while the spouses of foreigners who
validly divorce them abroad can.
2. This is the beginning of the recognition
of the validity of divorce even for Filipino
citizens. For those whose foreign spouses
validly divorce them abroad will also be
considered to be validly divorced here and can
re-marry. We propose that this be deleted and
made into law only after more widespread
consultation. (Emphasis supplied.)
Legislative Intent
Records of the proceedings of the Family Code
deliberations showed that the intent of
Paragraph 2 of Article 26, according to Judge
Alicia Sempio-Diy, a member of the Civil Code
Revision Committee, is to avoid the absurd
situation where the Filipino spouse remains
married to the alien spouse who, after
obtaining a divorce, is no longer married to
the Filipino spouse. AETcSa
Interestingly, Paragraph 2 of Article 26 traces
its origin to the 1985 case of Van Dorn v.
Romillo, Jr. 10 The Van Dorn case involved a
marriage between a Filipino citizen and a
foreigner. The Court held therein that a
divorce decree validly obtained by the alien
spouse is valid in the Philippines, and
consequently, the Filipino spouse is
capacitated to remarry under Philippine law.
Does the same principle apply to a case where
at the time of the celebration of the marriage,
the parties were Filipino citizens, but later on,
one of them obtains a foreign citizenship by
naturalization?
The jurisprudential answer lies latent in the
1998 case of Quita v. Court of Appeals. 11 In
Quita, the parties were, as in this case,
Filipino citizens when they got married. The
wife became a naturalized American citizen in
1954 and obtained a divorce in the same year.
The Court therein hinted, by way of obiter
dictum, that a Filipino divorced by his
naturalized foreign spouse is no longer
married under Philippine law and can thus
remarry.
Thus, taking into consideration the legislative
intent and applying the rule of reason, we hold
that Paragraph 2 of Article 26 should be
interpreted to include cases involving parties
who, at the time of the celebration of the
marriage were Filipino citizens, but later on,
one of them becomes naturalized as a foreign
citizen and obtains a divorce decree. The
Filipino spouse should likewise be allowed to
remarry as if the other party were a foreigner
at the time of the solemnization of the
marriage. To rule otherwise would be to
sanction absurdity and injustice. Where the
interpretation of a statute according to its
exact and literal import would lead to
mischievous results or contravene the clear
purpose of the legislature, it should be
construed according to its spirit and reason,
disregarding as far as necessary the letter of
the law. A statute may therefore be extended
to cases not within the literal meaning of its
terms, so long as they come within its spirit or
intent. 12
If we are to give meaning to the legislative
intent to avoid the absurd situation where the
Filipino spouse remains married to the alien
spouse who, after obtaining a divorce is no
longer married to the Filipino spouse, then the
instant case must be deemed as coming
within the contemplation of Paragraph 2 of
Article 26. AHDTIE
In view of the foregoing, we state the twin
elements for the application of Paragraph 2 of
Article 26 as follows:
1. There is a valid marriage that has been
celebrated between a Filipino citizen and a
foreigner; and
2. A valid divorce is obtained abroad by
the alien spouse capacitating him or her to
remarry.
The reckoning point is not the citizenship of
the parties at the time of the celebration of the
marriage, but their citizenship at the time a
valid divorce is obtained abroad by the alien
spouse capacitating the latter to remarry.
In this case, when Cipriano's wife was
naturalized as an American citizen, there was
still a valid marriage that has been celebrated
between her and Cipriano. As fate would have
it, the naturalized alien wife subsequently
obtained a valid divorce capacitating her to
remarry. Clearly, the twin requisites for the
application of Paragraph 2 of Article 26 are
both present in this case. Thus Cipriano, the
"divorced" Filipino spouse, should be allowed
to remarry.
We are also unable to sustain the OSG's
theory that the proper remedy of the Filipino
spouse is to file either a petition for
annulment or a petition for legal separation.
Annulment would be a long and tedious
process, and in this particular case, not even
feasible, considering that the marriage of the
parties appears to have all the badges of
validity. On the other hand, legal separation
would not be a sufficient remedy for it would
not sever the marriage tie; hence, the legally
separated Filipino spouse would still remain
married to the naturalized alien spouse.
However, we note that the records are bereft of
competent evidence duly submitted by
respondent concerning the divorce decree and
the naturalization of respondent's wife. It is
settled rule that one who alleges a fact has the
burden of proving it and mere allegation is not
evidence. 13
Accordingly, for his plea to prosper,
respondent herein must prove his allegation
that his wife was naturalized as an American
citizen. Likewise, before a foreign divorce
decree can be recognized by our own courts,
the party pleading it must prove the divorce as
a fact and demonstrate its conformity to the
foreign law allowing it. 14 Such foreign law
must also be proved as our courts cannot take
judicial notice of foreign laws. Like any other
fact, such laws must be alleged and proved.
15 Furthermore, respondent must also show
that the divorce decree allows his former wife
to remarry as specifically required in Article
26. Otherwise, there would be no evidence
sufficient to declare that he is capacitated to
enter into another marriage.
Nevertheless, we are unanimous in our
holding that Paragraph 2 of Article 26 of the
Family Code (E.O. No. 209, as amended by
E.O. No. 227), should be interpreted to allow a
Filipino citizen, who has been divorced by a
spouse who had acquired foreign citizenship
and remarried, also to remarry. However,
considering that in the present petition there
is no sufficient evidence submitted and on
record, we are unable to declare, based on
respondent's bare allegations that his wife,
who was naturalized as an American citizen,
had obtained a divorce decree and had
remarried an American, that respondent is
now capacitated to remarry. Such declaration
could only be made properly upon
respondent's submission of the aforecited
evidence in his favor. CcAHEI
ACCORDINGLY, the petition by the Republic
of the Philippines is GRANTED. The assailed
Decision dated May 15, 2002, and Resolution
dated July 4, 2002, of the Regional Trial Court
of Molave, Zamboanga del Sur, Branch 23, are
hereby SET ASIDE.
No pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J., Ynares-Santiago, Carpio and
Azcuna, JJ., concur.
THIRD DIVISION
[G.R. No. 186571. August 11, 2010.]
GERBERT R. CORPUZ, petitioner, vs. DAISYLYN
TIROL STO. TOMAS and The SOLICITOR
GENERAL, respondents.
DECISION
BRION, J p:
Before the Court is a direct appeal from the
decision 1 of the Regional Trial Court (RTC) of
Laoag City, Branch 11, elevated via a petition for
review on certiorari 2 under Rule 45 of the Rules of
Court (present petition). ASaTHc
Petitioner Gerbert R. Corpuz was a former Filipino
citizen who acquired Canadian citizenship through
naturalization on November 29, 2000. 3 On
January 18, 2005, Gerbert married respondent
Daisylyn T. Sto. Tomas, a Filipina, in Pasig City. 4
Due to work and other professional commitments,
Gerbert left for Canada soon after the wedding. He
returned to the Philippines sometime in April 2005
to surprise Daisylyn, but was shocked to discover
that his wife was having an affair with another
man. Hurt and disappointed, Gerbert returned to
Canada and filed a petition for divorce. The
Superior Court of Justice, Windsor, Ontario,
Canada granted Gerbert's petition for divorce on
December 8, 2005. The divorce decree took effect a
month later, on January 8, 2006. 5
Two years after the divorce, Gerbert has moved on
and has found another Filipina to love. Desirous of
marrying his new Filipina fiance in the
Philippines, Gerbert went to the Pasig City Civil
Registry Office and registered the Canadian divorce
decree on his and Daisylyn's marriage certificate.
Despite the registration of the divorce decree, an
official of the National Statistics Office (NSO)
informed Gerbert that the marriage between him
and Daisylyn still subsists under Philippine law; to
be enforceable, the foreign divorce decree must
first be judicially recognized by a competent
Philippine court, pursuant to NSO Circular No. 4,
series of 1982. 6 IHDCcT
Accordingly, Gerbert filed a petition for judicial
recognition of foreign divorce and/or declaration of
marriage as dissolved (petition) with the RTC.
Although summoned, Daisylyn did not file any
responsive pleading but submitted instead a
notarized letter/manifestation to the trial court.
She offered no opposition to Gerbert's petition and,
in fact, alleged her desire to file a similar case
herself but was prevented by financial and
personal circumstances. She, thus, requested that
she be considered as a party-in-interest with a
similar prayer to Gerbert's.
In its October 30, 2008 decision, 7 the RTC denied
Gerbert's petition. The RTC concluded that Gerbert
was not the proper party to institute the action for
judicial recognition of the foreign divorce decree as
he is a naturalized Canadian citizen. It ruled that
only the Filipino spouse can avail of the remedy,
under the second paragraph of Article 26 of the
Family Code, 8 in order for him or her to be able to
remarry under Philippine law. 9 Article 26 of the
Family Code reads:
Art. 26. All marriages solemnized outside the
Philippines, in accordance with the laws in force in
the country where they were solemnized, and valid
there as such, shall also be valid in this country,
except those prohibited under Articles 35(1), (4), (5)
and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a
foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the
Filipino spouse shall likewise have capacity to
remarry under Philippine law. TDESCa
This conclusion, the RTC stated, is consistent with
the legislative intent behind the enactment of the
second paragraph of Article 26 of the Family Code,
as determined by the Court in Republic v. Orbecido
III; 10 the provision was enacted to "avoid the
absurd situation where the Filipino spouse
remains married to the alien spouse who, after
obtaining a divorce, is no longer married to the
Filipino spouse." 11
THE PETITION
From the RTC's ruling, 12 Gerbert filed the present
petition. 13
Gerbert asserts that his petition before the RTC is
essentially for declaratory relief, similar to that
filed in Orbecido; he, thus, similarly asks for a
determination of his rights under the second
paragraph of Article 26 of the Family Code. Taking
into account the rationale behind the second
paragraph of Article 26 of the Family Code, he
contends that the provision applies as well to the
benefit of the alien spouse. He claims that the RTC
ruling unduly stretched the doctrine in Orbecido
by limiting the standing to file the petition only to
the Filipino spouse an interpretation he claims
to be contrary to the essence of the second
paragraph of Article 26 of the Family Code. He
considers himself as a proper party, vested with
sufficient legal interest, to institute the case, as
there is a possibility that he might be prosecuted
for bigamy if he marries his Filipina fiance in the
Philippines since two marriage certificates,
involving him, would be on file with the Civil
Registry Office. The Office of the Solicitor General
and Daisylyn, in their respective Comments, 14
both support Gerbert's position. SAcaDE
Essentially, the petition raises the issue of whether
the second paragraph of Article 26 of the Family
Code extends to aliens the right to petition a court
of this jurisdiction for the recognition of a foreign
divorce decree.
THE COURT'S RULING
The alien spouse can claim no right
under the second paragraph of
Article 26 of the Family Code as the
substantive right it establishes is in
favor of the Filipino spouse
The resolution of the issue requires a review of the
legislative history and intent behind the second
paragraph of Article 26 of the Family Code.
The Family Code recognizes only two types of
defective marriages void 15 and voidable 16
marriages. In both cases, the basis for the judicial
declaration of absolute nullity or annulment of the
marriage exists before or at the time of the
marriage. Divorce, on the other hand,
contemplates the dissolution of the lawful union
for cause arising after the marriage. 17 Our family
laws do not recognize absolute divorce between
Filipino citizens. 18
Recognizing the reality that divorce is a possibility
in marriages between a Filipino and an alien,
President Corazon C. Aquino, in the exercise of her
legislative powers under the Freedom Constitution,
19 enacted Executive Order No. (EO) 227,
amending Article 26 of the Family Code to its
present wording, as follows: CaSHAc
Art. 26. All marriages solemnized outside the
Philippines, in accordance with the laws in force in
the country where they were solemnized, and valid
there as such, shall also be valid in this country,
except those prohibited under Articles 35(1), (4), (5)
and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a
foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the
Filipino spouse shall likewise have capacity to
remarry under Philippine law.
Through the second paragraph of Article 26 of the
Family Code, EO 227 effectively incorporated into
the law this Court's holding in Van Dorn v.
Romillo, Jr. 20 and Pilapil v. Ibay-Somera. 21 In
both cases, the Court refused to acknowledge the
alien spouse's assertion of marital rights after a
foreign court's divorce decree between the alien
and the Filipino. The Court, thus, recognized that
the foreign divorce had already severed the marital
bond between the spouses. The Court reasoned in
Van Dorn v. Romillo that:
To maintain . . . that, under our laws, [the Filipino
spouse] has to be considered still married to [the
alien spouse] and still subject to a wife's
obligations . . . cannot be just. [The Filipino
spouse] should not be obliged to live together with,
observe respect and fidelity, and render support to
[the alien spouse]. The latter should not continue
to be one of her heirs with possible rights to
conjugal property. She should not be discriminated
against in her own country if the ends of justice
are to be served. 22 aCHDST
As the RTC correctly stated, the provision was
included in the law "to avoid the absurd situation
where the Filipino spouse remains married to the
alien spouse who, after obtaining a divorce, is no
longer married to the Filipino spouse." 23 The
legislative intent is for the benefit of the Filipino
spouse, by clarifying his or her marital status,
settling the doubts created by the divorce decree.
Essentially, the second paragraph of Article 26 of
the Family Code provided the Filipino spouse a
substantive right to have his or her marriage to the
alien spouse considered as dissolved, capacitating
him or her to remarry. 24 Without the second
paragraph of Article 26 of the Family Code, the
judicial recognition of the foreign decree of divorce,
whether in a proceeding instituted precisely for
that purpose or as a related issue in another
proceeding, would be of no significance to the
Filipino spouse since our laws do not recognize
divorce as a mode of severing the marital bond; 25
Article 17 of the Civil Code provides that the policy
against absolute divorces cannot be subverted by
judgments promulgated in a foreign country. The
inclusion of the second paragraph in Article 26 of
the Family Code provides the direct exception to
this rule and serves as basis for recognizing the
dissolution of the marriage between the Filipino
spouse and his or her alien spouse.
Additionally, an action based on the second
paragraph of Article 26 of the Family Code is not
limited to the recognition of the foreign divorce
decree. If the court finds that the decree
capacitated the alien spouse to remarry, the courts
can declare that the Filipino spouse is likewise
capacitated to contract another marriage. No court
in this jurisdiction, however, can make a similar
declaration for the alien spouse (other than that
already established by the decree), whose status
and legal capacity are generally governed by his
national law. 26 ACDIcS
Given the rationale and intent behind the
enactment, and the purpose of the second
paragraph of Article 26 of the Family Code, the
RTC was correct in limiting the applicability of the
provision for the benefit of the Filipino spouse. In
other words, only the Filipino spouse can invoke
the second paragraph of Article 26 of the Family
Code; the alien spouse can claim no right under
this provision.
The foreign divorce decree is
presumptive evidence of a right that
clothes the party with legal interest to
petition for its recognition in this
jurisdiction
We qualify our above conclusion i.e., that the
second paragraph of Article 26 of the Family Code
bestows no rights in favor of aliens with the
complementary statement that this conclusion is
not sufficient basis to dismiss Gerbert's petition
before the RTC. In other words, the unavailability
of the second paragraph of Article 26 of the Family
Code to aliens does not necessarily strip Gerbert of
legal interest to petition the RTC for the recognition
of his foreign divorce decree. The foreign divorce
decree itself, after its authenticity and conformity
with the alien's national law have been duly proven
according to our rules of evidence, serves as a
presumptive evidence of right in favor of Gerbert,
pursuant to Section 48, Rule 39 of the Rules of
Court which provides for the effect of foreign
judgments. This Section states: aTEScI
SEC. 48. Effect of foreign judgments or final
orders. The effect of a judgment or final order of
a tribunal of a foreign country, having jurisdiction
to render the judgment or final order is as follows:
(a) In case of a judgment or final order upon a
specific thing, the judgment or final order is
conclusive upon the title of the thing; and
(b) In case of a judgment or final order against
a person, the judgment or final order is
presumptive evidence of a right as between the
parties and their successors in interest by a
subsequent title.
In either case, the judgment or final order may be
repelled by evidence of a want of jurisdiction, want
of notice to the party, collusion, fraud, or clear
mistake of law or fact.
To our mind, direct involvement or being the
subject of the foreign judgment is sufficient to
clothe a party with the requisite interest to
institute an action before our courts for the
recognition of the foreign judgment. In a divorce
situation, we have declared, no less, that the
divorce obtained by an alien abroad may be
recognized in the Philippines, provided the divorce
is valid according to his or her national law. 27
CDAcIT
The starting point in any recognition of a foreign
divorce judgment is the acknowledgment that our
courts do not take judicial notice of foreign
judgments and laws. Justice Herrera explained
that, as a rule, "no sovereign is bound to give effect
within its dominion to a judgment rendered by a
tribunal of another country." 28 This means that
the foreign judgment and its authenticity must be
proven as facts under our rules on evidence,
together with the alien's applicable national law to
show the effect of the judgment on the alien
himself or herself. 29 The recognition may be made
in an action instituted specifically for the purpose
or in another action where a party invokes the
foreign decree as an integral aspect of his claim or
defense.
In Gerbert's case, since both the foreign divorce
decree and the national law of the alien,
recognizing his or her capacity to obtain a divorce,
purport to be official acts of a sovereign authority,
Section 24, Rule 132 of the Rules of Court comes
into play. This Section requires proof, either by (1)
official publications or (2) copies attested by the
officer having legal custody of the documents. If
the copies of official records are not kept in the
Philippines, these must be (a) accompanied by a
certificate issued by the proper diplomatic or
consular officer in the Philippine foreign service
stationed in the foreign country in which the
record is kept and (b) authenticated by the seal of
his office.
The records show that Gerbert attached to his
petition a copy of the divorce decree, as well as the
required certificates proving its authenticity, 30
but failed to include a copy of the Canadian law on
divorce. 31 Under this situation, we can, at this
point, simply dismiss the petition for insufficiency
of supporting evidence, unless we deem it more
appropriate to remand the case to the RTC to
determine whether the divorce decree is consistent
with the Canadian divorce law. DCASIT
We deem it more appropriate to take this latter
course of action, given the Article 26 interests that
will be served and the Filipina wife's (Daisylyn's)
obvious conformity with the petition. A remand, at
the same time, will allow other interested parties to
oppose the foreign judgment and overcome a
petitioner's presumptive evidence of a right by
proving want of jurisdiction, want of notice to a
party, collusion, fraud, or clear mistake of law or
fact. Needless to state, every precaution must be
taken to ensure conformity with our laws before a
recognition is made, as the foreign judgment, once
recognized, shall have the effect of res judicata 32
between the parties, as provided in Section 48,
Rule 39 of the Rules of Court. 33
In fact, more than the principle of comity that is
served by the practice of reciprocal recognition of
foreign judgments between nations, the res
judicata effect of the foreign judgments of divorce
serves as the deeper basis for extending judicial
recognition and for considering the alien spouse
bound by its terms. This same effect, as discussed
above, will not obtain for the Filipino spouse were
it not for the substantive rule that the second
paragraph of Article 26 of the Family Code
provides.
Considerations beyond the
recognition of the foreign divorce
decree
As a matter of "housekeeping" concern, we note
that the Pasig City Civil Registry Office has already
recorded the divorce decree on Gerbert and
Daisylyn's marriage certificate based on the mere
presentation of the decree. 34 We consider the
recording to be legally improper; hence, the need to
draw attention of the bench and the bar to what
had been done. ScaCEH
Article 407 of the Civil Code states that "[a]cts,
events and judicial decrees concerning the civil
status of persons shall be recorded in the civil
register." The law requires the entry in the civil
registry of judicial decrees that produce legal
consequences touching upon a person's legal
capacity and status, i.e., those affecting "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." 35
A judgment of divorce is a judicial decree, although
a foreign one, affecting a person's legal capacity
and status that must be recorded. In fact, Act No.
3753 or the Law on Registry of Civil Status
specifically requires the registration of divorce
decrees in the civil registry:
Sec. 1. Civil Register. A civil register is
established for recording the civil status of
persons, in which shall be entered:
(a) births;
(b) deaths;
(c) marriages;
(d) annulments of marriages;
(e) divorces; EHDCAI
(f) legitimations;
(g) adoptions;
(h) acknowledgment of natural children;
(i) naturalization; and
(j) changes of name.
xxx xxx xxx
Sec. 4. Civil Register Books. The local registrars
shall keep and preserve in their offices the
following books, in which they shall, respectively
make the proper entries concerning the civil status
of persons:
(1) Birth and death register.
(2) Marriage register, in which shall be entered
not only the marriages solemnized but also
divorces and dissolved marriages.
(3) Legitimation, acknowledgment, adoption,
change of name and naturalization register.
cAaETS
But while the law requires the entry of the divorce
decree in the civil registry, the law and the
submission of the decree by themselves do not ipso
facto authorize the decree's registration. The law
should be read in relation with the requirement of
a judicial recognition of the foreign judgment
before it can be given res judicata effect. In the
context of the present case, no judicial order as yet
exists recognizing the foreign divorce decree. Thus,
the Pasig City Civil Registry Office acted totally out
of turn and without authority of law when it
annotated the Canadian divorce decree on Gerbert
and Daisylyn's marriage certificate, on the strength
alone of the foreign decree presented by Gerbert.
Evidently, the Pasig City Civil Registry Office was
aware of the requirement of a court recognition, as
it cited NSO Circular No. 4, series of 1982, 36 and
Department of Justice Opinion No. 181, series of
1982 37 both of which required a final order
from a competent Philippine court before a foreign
judgment, dissolving a marriage, can be registered
in the civil registry, but it, nonetheless, allowed the
registration of the decree. For being contrary to
law, the registration of the foreign divorce decree
without the requisite judicial recognition is
patently void and cannot produce any legal effect.
Another point we wish to draw attention to is that
the recognition that the RTC may extend to the
Canadian divorce decree does not, by itself,
authorize the cancellation of the entry in the civil
registry. A petition for recognition of a foreign
judgment is not the proper proceeding,
contemplated under the Rules of Court, for the
cancellation of entries in the civil registry.
STHDAc
Article 412 of the Civil Code declares that "no entry
in a civil register shall be changed or corrected,
without judicial order." The Rules of Court
supplements Article 412 of the Civil Code by
specifically providing for a special remedial
proceeding by which entries in the civil registry
may be judicially cancelled or corrected. Rule 108
of the Rules of Court sets in detail the
jurisdictional and procedural requirements that
must be complied with before a judgment,
authorizing the cancellation or correction, may be
annotated in the civil registry. It also requires,
among others, that the verified petition must be
filed with the RTC of the province where the
corresponding civil registry is located; 38 that the
civil registrar and all persons who have or claim
any interest must be made parties to the
proceedings; 39 and that the time and place for
hearing must be published in a newspaper of
general circulation. 40 As these basic jurisdictional
requirements have not been met in the present
case, we cannot consider the petition Gerbert filed
with the RTC as one filed under Rule 108 of the
Rules of Court.
We hasten to point out, however, that this ruling
should not be construed as requiring two separate
proceedings for the registration of a foreign divorce
decree in the civil registry one for recognition of
the foreign decree and another specifically for
cancellation of the entry under Rule 108 of the
Rules of Court. The recognition of the foreign
divorce decree may be made in a Rule 108
proceeding itself, as the object of special
proceedings (such as that in Rule 108 of the Rules
of Court) is precisely to establish the status or
right of a party or a particular fact. Moreover, Rule
108 of the Rules of Court can serve as the
appropriate adversarial proceeding 41 by which the
applicability of the foreign judgment can be
measured and tested in terms of jurisdictional
infirmities, want of notice to the party, collusion,
fraud, or clear mistake of law or fact. ETDaIC
WHEREFORE, we GRANT the petition for review on
certiorari, and REVERSE the October 30, 2008
decision of the Regional Trial Court of Laoag City,
Branch 11, as well as its February 17, 2009 order.
We order the REMAND of the case to the trial court
for further proceedings in accordance with our
ruling above. Let a copy of this Decision be
furnished the Civil Registrar General. No costs.
SO ORDERED.
Carpio Morales, Bersamin, Abad * and Villarama
Jr., JJ., concur.
SECOND DIVISION
[G.R. No. 196049. June 26, 2013.]
MINORU FUJIKI, petitioner, vs. MARIA PAZ
GALELA MARINAY, SHINICHI MAEKARA,
LOCAL CIVIL REGISTRAR OF QUEZON
CITY, and THE ADMINISTRATOR AND
CIVIL REGISTRAR GENERAL OF THE
NATIONAL STATISTICS OFFICE,
respondents.
DECISION
CARPIO, J p:
The Case
This is a direct recourse to this Court from the
Regional Trial Court (RTC), Branch 107,
Quezon City, through a petition for review on
certiorari under Rule 45 of the Rules of Court
on a pure question of law. The petition assails
the Order 1 dated 31 January 2011 of the
RTC in Civil Case No. Q-11-68582 and its
Resolution dated 2 March 2011 denying
petitioner's Motion for Reconsideration. The
RTC dismissed the petition for "Judicial
Recognition of Foreign Judgment (or Decree of
Absolute Nullity of Marriage)" based on
improper venue and the lack of personality of
petitioner, Minoru Fujiki, to file the petition.
IEHScT
The Facts
Petitioner Minoru Fujiki (Fujiki) is a Japanese
national who married respondent Maria Paz
Galela Marinay (Marinay) in the Philippines 2
on 23 January 2004. The marriage did not sit
well with petitioner's parents. Thus, Fujiki
could not bring his wife to Japan where he
resides. Eventually, they lost contact with
each other.
In 2008, Marinay met another Japanese,
Shinichi Maekara (Maekara). Without the first
marriage being dissolved, Marinay and
Maekara were married on 15 May 2008 in
Quezon City, Philippines. Maekara brought
Marinay to Japan. However, Marinay allegedly
suffered physical abuse from Maekara. She
left Maekara and started to contact Fujiki. 3
Fujiki and Marinay met in Japan and they
were able to reestablish their relationship. In
2010, Fujiki helped Marinay obtain a
judgment from a family court in Japan which
declared the marriage between Marinay and
Maekara void on the ground of bigamy. 4 On
14 January 2011, Fujiki filed a petition in the
RTC entitled: "Judicial Recognition of Foreign
Judgment (or Decree of Absolute Nullity of
Marriage)." Fujiki prayed that (1) the Japanese
Family Court judgment be recognized; (2) that
the bigamous marriage between Marinay and
Maekara be declared void ab initio under
Articles 35 (4) and 41 of the Family Code of
the Philippines; 5 and (3) for the RTC to direct
the Local Civil Registrar of Quezon City to
annotate the Japanese Family Court judgment
on the Certificate of Marriage between
Marinay and Maekara and to endorse such
annotation to the Office of the Administrator
and Civil Registrar General in the National
Statistics Office (NSO). 6 caITAC
The Ruling of the Regional Trial Court
A few days after the filing of the petition, the
RTC immediately issued an Order dismissing
the petition and withdrawing the case from its
active civil docket. 7 The RTC cited the
following provisions of the Rule on Declaration
of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages (A.M. No.
02-11-10-SC):
Sec. 2. Petition for declaration of
absolute nullity of void marriages.
(a) Who may file. A petition for
declaration of absolute nullity of void marriage
may be filed solely by the husband or the wife.
xxx xxx xxx
Sec. 4. Venue. The petition shall be
filed in the Family Court of the province or city
where the petitioner or the respondent has
been residing for at least six months prior to
the date of filing, or in the case of a non-
resident respondent, where he may be found
in the Philippines, at the election of the
petitioner. . . . STaAcC
The RTC ruled, without further explanation,
that the petition was in "gross violation" of the
above provisions. The trial court based its
dismissal on Section 5 (4) of A.M. No. 02-11-
10-SC which provides that "[f]ailure to comply
with any of the preceding requirements may
be a ground for immediate dismissal of the
petition." 8 Apparently, the RTC took the view
that only "the husband or the wife," in this
case either Maekara or Marinay, can file the
petition to declare their marriage void, and not
Fujiki.
Fujiki moved that the Order be reconsidered.
He argued that A.M. No. 02-11-10-SC
contemplated ordinary civil actions for
declaration of nullity and annulment of
marriage. Thus, A.M. No. 02-11-10-SC does
not apply. A petition for recognition of foreign
judgment is a special proceeding, which
"seeks to establish a status, a right or a
particular fact," 9 and not a civil action which
is "for the enforcement or protection of a right,
or the prevention or redress of a wrong." 10 In
other words, the petition in the RTC sought to
establish (1) the status and concomitant
rights of Fujiki and Marinay as husband and
wife and (2) the fact of the rendition of the
Japanese Family Court judgment declaring
the marriage between Marinay and Maekara
as void on the ground of bigamy. The
petitioner contended that the Japanese
judgment was consistent with Article 35 (4) of
the Family Code of the Philippines 11 on
bigamy and was therefore entitled to
recognition by Philippine courts. 12 aIcDCH
In any case, it was also Fujiki's view that A.M.
No. 02-11-10-SC applied only to void
marriages under Article 36 of the Family Code
on the ground of psychological incapacity. 13
Thus, Section 2 (a) of A.M. No. 02-11-10-SC
provides that "a petition for declaration of
absolute nullity of void marriages may be filed
solely by the husband or the wife." To apply
Section 2 (a) in bigamy would be absurd
because only the guilty parties would be
permitted to sue. In the words of Fujiki, "[i]t is
not, of course, difficult to realize that the party
interested in having a bigamous marriage
declared a nullity would be the husband in
the prior, pre-existing marriage." 14 Fujiki had
material interest and therefore the personality
to nullify a bigamous marriage.
Fujiki argued that Rule 108 (Cancellation or
Correction of Entries in the Civil Registry) of
the Rules of Court is applicable. Rule 108 is
the "procedural implementation" of the Civil
Register Law (Act No. 3753) 15 in relation to
Article 413 of the Civil Code. 16 The Civil
Register Law imposes a duty on the
"successful petitioner for divorce or
annulment of marriage to send a copy of the
final decree of the court to the local registrar
of the municipality where the dissolved or
annulled marriage was solemnized." 17
Section 2 of Rule 108 provides that entries in
the civil registry relating to "marriages,"
"judgments of annulments of marriage" and
"judgments declaring marriages void from the
beginning" are subject to cancellation or
correction. 18 The petition in the RTC sought
(among others) to annotate the judgment of
the Japanese Family Court on the certificate
of marriage between Marinay and Maekara.
CaAIES
Fujiki's motion for reconsideration in the RTC
also asserted that the trial court "gravely
erred" when, on its own, it dismissed the
petition based on improper venue. Fujiki
stated that the RTC may be confusing the
concept of venue with the concept of
jurisdiction, because it is lack of jurisdiction
which allows a court to dismiss a case on its
own. Fujiki cited Dacoycoy v. Intermediate
Appellate Court 19 which held that the "trial
court cannot pre-empt the defendant's
prerogative to object to the improper laying of
the venue by motu proprio dismissing the
case." 20 Moreover, petitioner alleged that the
trial court should not have "immediately
dismissed" the petition under Section 5 of
A.M. No. 02-11-10-SC because he
substantially complied with the provision.
On 2 March 2011, the RTC resolved to deny
petitioner's motion for reconsideration. In its
Resolution, the RTC stated that A.M. No. 02-
11-10-SC applies because the petitioner, in
effect, prays for a decree of absolute nullity of
marriage. 21 The trial court reiterated its two
grounds for dismissal, i.e., lack of personality
to sue and improper venue under Sections 2
(a) and 4 of A.M. No. 02-11-10-SC. The RTC
considered Fujiki as a "third person" 22 in the
proceeding because he "is not the husband in
the decree of divorce issued by the Japanese
Family Court, which he now seeks to be
judicially recognized, . . . ." 23 On the other
hand, the RTC did not explain its ground of
impropriety of venue. It only said that
"[a]lthough the Court cited Sec. 4 (Venue) . . .
as a ground for dismissal of this case[,] it
should be taken together with the other
ground cited by the Court . . . which is Sec. 2
(a) . . . ." 24
The RTC further justified its motu proprio
dismissal of the petition based on Braza v. The
City Civil Registrar of Himamaylan City,
Negros Occidental. 25 The Court in Braza
ruled that "[i]n a special proceeding for
correction of entry under Rule 108
(Cancellation or Correction of Entries in the
Original Registry), the trial court has no
jurisdiction to nullify marriages . . . ." 26
Braza emphasized that the "validity of
marriages as well as legitimacy and filiation
can be questioned only in a direct action
seasonably filed by the proper party, and not
through a collateral attack such as [a] petition
[for correction of entry] . . . ." 27 SaTAED
The RTC considered the petition as a collateral
attack on the validity of marriage between
Marinay and Maekara. The trial court held
that this is a "jurisdictional ground" to dismiss
the petition. 28 Moreover, the verification and
certification against forum shopping of the
petition was not authenticated as required
under Section 5 29 of A.M. No. 02-11-10-SC.
Hence, this also warranted the "immediate
dismissal" of the petition under the same
provision.
The Manifestation and Motion of the Office of
the Solicitor General and
the Letters of Marinay and Maekara
On 30 May 2011, the Court required
respondents to file their comment on the
petition for review. 30 The public respondents,
the Local Civil Registrar of Quezon City and
the Administrator and Civil Registrar General
of the NSO, participated through the Office of
the Solicitor General. Instead of a comment,
the Solicitor General filed a Manifestation and
Motion. 31
The Solicitor General agreed with the petition.
He prayed that the RTC's "pronouncement
that the petitioner failed to comply with . . .
A.M. No. 02-11-10-SC . . . be set aside" and
that the case be reinstated in the trial court
for further proceedings. 32 The Solicitor
General argued that Fujiki, as the spouse of
the first marriage, is an injured party who can
sue to declare the bigamous marriage between
Marinay and Maekara void. The Solicitor
General cited Juliano-Llave v. Republic 33
which held that Section 2 (a) of A.M. No. 02-
11-10-SC does not apply in cases of bigamy.
In Juliano-Llave, this Court explained:
SCHATc
[t]he subsequent spouse may only be expected
to take action if he or she had only discovered
during the connubial period that the marriage
was bigamous, and especially if the conjugal
bliss had already vanished. Should parties in
a subsequent marriage benefit from the
bigamous marriage, it would not be expected
that they would file an action to declare the
marriage void and thus, in such
circumstance, the "injured spouse" who
should be given a legal remedy is the one in a
subsisting previous marriage. The latter is
clearly the aggrieved party as the bigamous
marriage not only threatens the financial and
the property ownership aspect of the prior
marriage but most of all, it causes an
emotional burden to the prior spouse. The
subsequent marriage will always be a
reminder of the infidelity of the spouse and
the disregard of the prior marriage which
sanctity is protected by the Constitution. 34
The Solicitor General contended that the
petition to recognize the Japanese Family
Court judgment may be made in a Rule 108
proceeding. 35 In Corpuz v. Santo Tomas, 36
this Court held that "[t]he recognition of the
foreign divorce decree may be made in a Rule
108 proceeding itself, as the object of special
proceedings (such as that in Rule 108 of the
Rules of Court) is precisely to establish the
status or right of a party or a particular fact."
37 While Corpuz concerned a foreign divorce
decree, in the present case the Japanese
Family Court judgment also affected the civil
status of the parties, especially Marinay, who
is a Filipino citizen. CaASIc
The Solicitor General asserted that Rule 108
of the Rules of Court is the procedure to
record "[a]cts, events and judicial decrees
concerning the civil status of persons" in the
civil registry as required by Article 407 of the
Civil Code. In other words, "[t]he law requires
the entry in the civil registry of judicial
decrees that produce legal consequences upon
a person's legal capacity and status . . . ." 38
The Japanese Family Court judgment directly
bears on the civil status of a Filipino citizen
and should therefore be proven as a fact in a
Rule 108 proceeding.
Moreover, the Solicitor General argued that
there is no jurisdictional infirmity in assailing
a void marriage under Rule 108, citing De
Castro v. De Castro 39 and Nial v. Bayadog
40 which declared that "[t]he validity of a void
marriage may be collaterally attacked." 41
Marinay and Maekara individually sent letters
to the Court to comply with the directive for
them to comment on the petition. 42 Maekara
wrote that Marinay concealed from him the
fact that she was previously married to Fujiki.
43 Maekara also denied that he inflicted any
form of violence on Marinay. 44 On the other
hand, Marinay wrote that she had no reason
to oppose the petition. 45 She would like to
maintain her silence for fear that anything she
say might cause misunderstanding between
her and Fujiki. 46 ScTaEA
The Issues
Petitioner raises the following legal issues:
(1) Whether the Rule on Declaration of
Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages (A.M. No.
02-11-10-SC) is applicable.
(2) Whether a husband or wife of a prior
marriage can file a petition to recognize a
foreign judgment nullifying the subsequent
marriage between his or her spouse and a
foreign citizen on the ground of bigamy.
(3) Whether the Regional Trial Court can
recognize the foreign judgment in a proceeding
for cancellation or correction of entries in the
Civil Registry under Rule 108 of the Rules of
Court.
The Ruling of the Court
We grant the petition. DHACES
The Rule on Declaration of Absolute Nullity of
Void Marriages and Annulment of Voidable
Marriages (A.M. No. 02-11-10-SC) does not
apply in a petition to recognize a foreign
judgment relating to the status of a marriage
where one of the parties is a citizen of a
foreign country. Moreover, in Juliano-Llave v.
Republic, 47 this Court held that the rule in
A.M. No. 02-11-10-SC that only the husband
or wife can file a declaration of nullity or
annulment of marriage "does not apply if the
reason behind the petition is bigamy." 48
I.
For Philippine courts to recognize a foreign
judgment relating to the status of a marriage
where one of the parties is a citizen of a
foreign country, the petitioner only needs to
prove the foreign judgment as a fact under the
Rules of Court. To be more specific, a copy of
the foreign judgment may be admitted in
evidence and proven as a fact under Rule 132,
Sections 24 and 25, in relation to Rule 39,
Section 48 (b) of the Rules of Court. 49
Petitioner may prove the Japanese Family
Court judgment through (1) an official
publication or (2) a certification or copy
attested by the officer who has custody of the
judgment. If the office which has custody is in
a foreign country such as Japan, the
certification may be made by the proper
diplomatic or consular officer of the Philippine
foreign service in Japan and authenticated by
the seal of office. 50 EaISTD
To hold that A.M. No. 02-11-10-SC applies to
a petition for recognition of foreign judgment
would mean that the trial court and the
parties should follow its provisions, including
the form and contents of the petition, 51 the
service of summons, 52 the investigation of
the public prosecutor, 53 the setting of pre-
trial, 54 the trial 55 and the judgment of the
trial court. 56 This is absurd because it will
litigate the case anew. It will defeat the
purpose of recognizing foreign judgments,
which is "to limit repetitive litigation on claims
and issues." 57 The interpretation of the RTC
is tantamount to relitigating the case on the
merits. In Mijares v. Raada, 58 this Court
explained that "[i]f every judgment of a foreign
court were reviewable on the merits, the
plaintiff would be forced back on his/her
original cause of action, rendering immaterial
the previously concluded litigation." 59
HEDaTA
A foreign judgment relating to the status of a
marriage affects the civil status, condition and
legal capacity of its parties. However, the effect
of a foreign judgment is not automatic. To
extend the effect of a foreign judgment in the
Philippines, Philippine courts must determine
if the foreign judgment is consistent with
domestic public policy and other mandatory
laws. 60 Article 15 of the Civil Code provides
that "[l]aws relating to family rights and
duties, or to the status, condition and legal
capacity of persons are binding upon citizens
of the Philippines, even though living abroad."
This is the rule of lex nationalii in private
international law. Thus, the Philippine State
may require, for effectivity in the Philippines,
recognition by Philippine courts of a foreign
judgment affecting its citizen, over whom it
exercises personal jurisdiction relating to the
status, condition and legal capacity of such
citizen.
A petition to recognize a foreign judgment
declaring a marriage void does not require
relitigation under a Philippine court of the
case as if it were a new petition for declaration
of nullity of marriage. Philippine courts cannot
presume to know the foreign laws under
which the foreign judgment was rendered.
They cannot substitute their judgment on the
status, condition and legal capacity of the
foreign citizen who is under the jurisdiction of
another state. Thus, Philippine courts can
only recognize the foreign judgment as a fact
according to the rules of evidence. ECcTaS
Section 48 (b), Rule 39 of the Rules of Court
provides that a foreign judgment or final order
against a person creates a "presumptive
evidence of a right as between the parties and
their successors in interest by a subsequent
title." Moreover, Section 48 of the Rules of
Court states that "the judgment or final order
may be repelled by evidence of a want of
jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or
fact." Thus, Philippine courts exercise limited
review on foreign judgments. Courts are not
allowed to delve into the merits of a foreign
judgment. Once a foreign judgment is
admitted and proven in a Philippine court, it
can only be repelled on grounds external to its
merits, i.e., "want of jurisdiction, want of
notice to the party, collusion, fraud, or clear
mistake of law or fact." The rule on limited
review embodies the policy of efficiency and
the protection of party expectations, 61 as well
as respecting the jurisdiction of other states.
62
Since 1922 in Adong v. Cheong Seng Gee, 63
Philippine courts have recognized foreign
divorce decrees between a Filipino and a
foreign citizen if they are successfully proven
under the rules of evidence. 64 Divorce
involves the dissolution of a marriage, but the
recognition of a foreign divorce decree does
not involve the extended procedure under
A.M. No. 02-11-10-SC or the rules of ordinary
trial. While the Philippines does not have a
divorce law, Philippine courts may, however,
recognize a foreign divorce decree under the
second paragraph of Article 26 of the Family
Code, to capacitate a Filipino citizen to
remarry when his or her foreign spouse
obtained a divorce decree abroad. 65 CSDcTA
There is therefore no reason to disallow Fujiki
to simply prove as a fact the Japanese Family
Court judgment nullifying the marriage
between Marinay and Maekara on the ground
of bigamy. While the Philippines has no
divorce law, the Japanese Family Court
judgment is fully consistent with Philippine
public policy, as bigamous marriages are
declared void from the beginning under Article
35 (4) of the Family Code. Bigamy is a crime
under Article 349 of the Revised Penal Code.
Thus, Fujiki can prove the existence of the
Japanese Family Court judgment in
accordance with Rule 132, Sections 24 and
25, in relation to Rule 39, Section 48 (b) of the
Rules of Court.
II.
Since the recognition of a foreign judgment
only requires proof of fact of the judgment, it
may be made in a special proceeding for
cancellation or correction of entries in the civil
registry under Rule 108 of the Rules of Court.
Rule 1, Section 3 of the Rules of Court
provides that "[a] special proceeding is a
remedy by which a party seeks to establish a
status, a right, or a particular fact." Rule 108
creates a remedy to rectify facts of a person's
life which are recorded by the State pursuant
to the Civil Register Law or Act No. 3753.
These are facts of public consequence such as
birth, death or marriage, 66 which the State
has an interest in recording. As noted by the
Solicitor General, in Corpuz v. Sto. Tomas this
Court declared that "[t]he recognition of the
foreign divorce decree may be made in a Rule
108 proceeding itself, as the object of special
proceedings (such as that in Rule 108 of the
Rules of Court) is precisely to establish the
status or right of a party or a particular fact."
67 AIaHES
Rule 108, Section 1 of the Rules of Court
states:
Sec. 1. Who may file petition. Any
person interested in any act, event, order or
decree concerning the civil status of persons
which has been recorded in the civil register,
may file a verified petition for the cancellation
or correction of any entry relating thereto,
with the Regional Trial Court of the province
where the corresponding civil registry is
located. (Emphasis supplied)
Fujiki has the personality to file a petition to
recognize the Japanese Family Court
judgment nullifying the marriage between
Marinay and Maekara on the ground of
bigamy because the judgment concerns his
civil status as married to Marinay. For the
same reason he has the personality to file a
petition under Rule 108 to cancel the entry of
marriage between Marinay and Maekara in the
civil registry on the basis of the decree of the
Japanese Family Court. aETDIc
There is no doubt that the prior spouse has a
personal and material interest in maintaining
the integrity of the marriage he contracted and
the property relations arising from it. There is
also no doubt that he is interested in the
cancellation of an entry of a bigamous
marriage in the civil registry, which
compromises the public record of his
marriage. The interest derives from the
substantive right of the spouse not only to
preserve (or dissolve, in limited instances) 68
his most intimate human relation, but also to
protect his property interests that arise by
operation of law the moment he contracts
marriage. 69 These property interests in
marriage include the right to be supported "in
keeping with the financial capacity of the
family" 70 and preserving the property regime
of the marriage. 71
Property rights are already substantive rights
protected by the Constitution, 72 but a
spouse's right in a marriage extends further to
relational rights recognized under Title III
("Rights and Obligations between Husband
and Wife") of the Family Code. 73 A.M. No. 02-
11-10-SC cannot "diminish, increase, or
modify" the substantive right of the spouse to
maintain the integrity of his marriage. 74 In
any case, Section 2 (a) of A.M. No. 02-11-10-
SC preserves this substantive right by limiting
the personality to sue to the husband or the
wife of the union recognized by law. DHSCTI
Section 2 (a) of A.M. No. 02-11-10-SC does not
preclude a spouse of a subsisting marriage to
question the validity of a subsequent marriage
on the ground of bigamy. On the contrary,
when Section 2 (a) states that "[a] petition for
declaration of absolute nullity of void marriage
may be filed solely by the husband or the wife"
75 it refers to the husband or the wife of
the subsisting marriage. Under Article 35 (4)
of the Family Code, bigamous marriages are
void from the beginning. Thus, the parties in a
bigamous marriage are neither the husband
nor the wife under the law. The husband or
the wife of the prior subsisting marriage is the
one who has the personality to file a petition
for declaration of absolute nullity of void
marriage under Section 2 (a) of A.M. No. 02-
11-10-SC.
Article 35 (4) of the Family Code, which
declares bigamous marriages void from the
beginning, is the civil aspect of Article 349 of
the Revised Penal Code, 76 which penalizes
bigamy. Bigamy is a public crime. Thus,
anyone can initiate prosecution for bigamy
because any citizen has an interest in the
prosecution and prevention of crimes. 77 If
anyone can file a criminal action which leads
to the declaration of nullity of a bigamous
marriage, 78 there is more reason to confer
personality to sue on the husband or the wife
of a subsisting marriage. The prior spouse
does not only share in the public interest of
prosecuting and preventing crimes, he is also
personally interested in the purely civil aspect
of protecting his marriage. TAaEIc
When the right of the spouse to protect his
marriage is violated, the spouse is clearly an
injured party and is therefore interested in the
judgment of the suit. 79 Juliano-Llave ruled
that the prior spouse "is clearly the aggrieved
party as the bigamous marriage not only
threatens the financial and the property
ownership aspect of the prior marriage but
most of all, it causes an emotional burden to
the prior spouse." 80 Being a real party in
interest, the prior spouse is entitled to sue in
order to declare a bigamous marriage void. For
this purpose, he can petition a court to
recognize a foreign judgment nullifying the
bigamous marriage and judicially declare as a
fact that such judgment is effective in the
Philippines. Once established, there should be
no more impediment to cancel the entry of the
bigamous marriage in the civil registry.
III.
In Braza v. The City Civil Registrar of
Himamaylan City, Negros Occidental, this
Court held that a "trial court has no
jurisdiction to nullify marriages" in a special
proceeding for cancellation or correction of
entry under Rule 108 of the Rules of Court. 81
Thus, the "validity of marriage[] . . . can be
questioned only in a direct action" to nullify
the marriage. 82 The RTC relied on Braza in
dismissing the petition for recognition of
foreign judgment as a collateral attack on the
marriage between Marinay and Maekara.
EAcTDH
Braza is not applicable because Braza does
not involve a recognition of a foreign judgment
nullifying a bigamous marriage where one of
the parties is a citizen of the foreign country.
To be sure, a petition for correction or
cancellation of an entry in the civil registry
cannot substitute for an action to invalidate a
marriage. A direct action is necessary to
prevent circumvention of the substantive and
procedural safeguards of marriage under the
Family Code, A.M. No. 02-11-10-SC and other
related laws. Among these safeguards are the
requirement of proving the limited grounds for
the dissolution of marriage, 83 support
pendente lite of the spouses and children, 84
the liquidation, partition and distribution of
the properties of the spouses, 85 and the
investigation of the public prosecutor to
determine collusion. 86 A direct action for
declaration of nullity or annulment of
marriage is also necessary to prevent
circumvention of the jurisdiction of the Family
Courts under the Family Courts Act of 1997
(Republic Act No. 8369), as a petition for
cancellation or correction of entries in the civil
registry may be filed in the Regional Trial
Court "where the corresponding civil registry
is located." 87 In other words, a Filipino
citizen cannot dissolve his marriage by the
mere expedient of changing his entry of
marriage in the civil registry. AcISTE
However, this does not apply in a petition for
correction or cancellation of a civil registry
entry based on the recognition of a foreign
judgment annulling a marriage where one of
the parties is a citizen of the foreign country.
There is neither circumvention of the
substantive and procedural safeguards of
marriage under Philippine law, nor of the
jurisdiction of Family Courts under R.A. No.
8369. A recognition of a foreign judgment is
not an action to nullify a marriage. It is an
action for Philippine courts to recognize the
effectivity of a foreign judgment, which
presupposes a case which was already tried
and decided under foreign law. The procedure
in A.M. No. 02-11-10-SC does not apply in a
petition to recognize a foreign judgment
annulling a bigamous marriage where one of
the parties is a citizen of the foreign country.
Neither can R.A. No. 8369 define the
jurisdiction of the foreign court.
Article 26 of the Family Code confers
jurisdiction on Philippine courts to extend the
effect of a foreign divorce decree to a Filipino
spouse without undergoing trial to determine
the validity of the dissolution of the marriage.
The second paragraph of Article 26 of the
Family Code provides that "[w]here a marriage
between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter
validly obtained abroad by the alien spouse
capacitating him or her to remarry, the
Filipino spouse shall have capacity to remarry
under Philippine law." In Republic v.
Orbecido, 88 this Court recognized the
legislative intent of the second paragraph of
Article 26 which is "to avoid the absurd
situation where the Filipino spouse remains
married to the alien spouse who, after
obtaining a divorce, is no longer married to
the Filipino spouse" 89 under the laws of his
or her country. The second paragraph of
Article 26 of the Family Code only authorizes
Philippine courts to adopt the effects of a
foreign divorce decree precisely because the
Philippines does not allow divorce. Philippine
courts cannot try the case on the merits
because it is tantamount to trying a case for
divorce.
The second paragraph of Article 26 is only a
corrective measure to address the anomaly
that results from a marriage between a
Filipino, whose laws do not allow divorce, and
a foreign citizen, whose laws allow divorce.
The anomaly consists in the Filipino spouse
being tied to the marriage while the foreign
spouse is free to marry under the laws of his
or her country. The correction is made by
extending in the Philippines the effect of the
foreign divorce decree, which is already
effective in the country where it was rendered.
The second paragraph of Article 26 of the
Family Code is based on this Court's decision
in Van Dorn v. Romillo 90 which declared that
the Filipino spouse "should not be
discriminated against in her own country if
the ends of justice are to be served." 91
IDETCA
The principle in Article 26 of the Family Code
applies in a marriage between a Filipino and a
foreign citizen who obtains a foreign judgment
nullifying the marriage on the ground of
bigamy. The Filipino spouse may file a petition
abroad to declare the marriage void on the
ground of bigamy. The principle in the second
paragraph of Article 26 of the Family Code
applies because the foreign spouse, after the
foreign judgment nullifying the marriage, is
capacitated to remarry under the laws of his
or her country. If the foreign judgment is not
recognized in the Philippines, the Filipino
spouse will be discriminated the foreign
spouse can remarry while the Filipino spouse
cannot remarry.
Under the second paragraph of Article 26 of
the Family Code, Philippine courts are
empowered to correct a situation where the
Filipino spouse is still tied to the marriage
while the foreign spouse is free to marry.
Moreover, notwithstanding Article 26 of the
Family Code, Philippine courts already have
jurisdiction to extend the effect of a foreign
judgment in the Philippines to the extent that
the foreign judgment does not contravene
domestic public policy. A critical difference
between the case of a foreign divorce decree
and a foreign judgment nullifying a bigamous
marriage is that bigamy, as a ground for the
nullity of marriage, is fully consistent with
Philippine public policy as expressed in Article
35 (4) of the Family Code and Article 349 of
the Revised Penal Code. The Filipino spouse
has the option to undergo full trial by filing a
petition for declaration of nullity of marriage
under A.M. No. 02-11-10-SC, but this is not
the only remedy available to him or her.
Philippine courts have jurisdiction to
recognize a foreign judgment nullifying a
bigamous marriage, without prejudice to a
criminal prosecution for bigamy.
In the recognition of foreign judgments,
Philippine courts are incompetent to
substitute their judgment on how a case was
decided under foreign law. They cannot decide
on the "family rights and duties, or on the
status, condition and legal capacity" of the
foreign citizen who is a party to the foreign
judgment. Thus, Philippine courts are limited
to the question of whether to extend the effect
of a foreign judgment in the Philippines. In a
foreign judgment relating to the status of a
marriage involving a citizen of a foreign
country, Philippine courts only decide whether
to extend its effect to the Filipino party, under
the rule of lex nationalii expressed in Article
15 of the Civil Code. ATEHDc
For this purpose, Philippine courts will only
determine (1) whether the foreign judgment is
inconsistent with an overriding public policy
in the Philippines; and (2) whether any
alleging party is able to prove an extrinsic
ground to repel the foreign judgment, i.e.,
want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law
or fact. If there is neither inconsistency with
public policy nor adequate proof to repel the
judgment, Philippine courts should, by
default, recognize the foreign judgment as part
of the comity of nations. Section 48 (b), Rule
39 of the Rules of Court states that the foreign
judgment is already "presumptive evidence of
a right between the parties." Upon recognition
of the foreign judgment, this right becomes
conclusive and the judgment serves as the
basis for the correction or cancellation of entry
in the civil registry. The recognition of the
foreign judgment nullifying a bigamous
marriage is a subsequent event that
establishes a new status, right and fact 92
that needs to be reflected in the civil registry.
Otherwise, there will be an inconsistency
between the recognition of the effectivity of the
foreign judgment and the public records in the
Philippines.
However, the recognition of a foreign judgment
nullifying a bigamous marriage is without
prejudice to prosecution for bigamy under
Article 349 of the Revised Penal Code. 93 The
recognition of a foreign judgment nullifying a
bigamous marriage is not a ground for
extinction of criminal liability under Articles
89 and 94 of the Revised Penal Code.
Moreover, under Article 91 of the Revised
Penal Code, "[t]he term of prescription [of the
crime of bigamy] shall not run when the
offender is absent from the Philippine
archipelago." CcHDSA
Since A.M. No. 02-11-10-SC is inapplicable,
the Court no longer sees the need to address
the questions on venue and the contents and
form of the petition under Sections 4 and 5,
respectively, of A.M. No. 02-11-10-SC.
WHEREFORE, we GRANT the petition. The
Order dated 31 January 2011 and the
Resolution dated 2 March 2011 of the
Regional Trial Court, Branch 107, Quezon
City, in Civil Case No. Q-11-68582 are
REVERSED and SET ASIDE. The Regional
Trial Court is ORDERED to REINSTATE the
petition for further proceedings in accordance
with this Decision.
SO ORDERED. AIECSD
Brion, Del Castillo, Perez and Perlas-Bernabe,
JJ., concur.
THIRD DIVISION
[G.R. No. 183805. July 3, 2013.]
JAMES WALTER P. CAPILI, petitioner, vs.
PEOPLE OF THE PHILIPPINES and
SHIRLEY TISMO-CAPILI, respondents.
DECISION
PERALTA, J p:
Before us is a Petition for Review on Certiorari
under Rule 45 of the Rules of Court seeking
the reversal of the Decision 1 dated February
1, 2008 and Resolution 2 dated July 24, 2008
of the Court of Appeals (CA) in CA-G.R. CR No.
30444.
The factual antecedents are as follows:
On June 28, 2004, petitioner was charged
with the crime of bigamy before the Regional
Trial Court (RTC) of Pasig City in an
Information which reads:
On or about December 8, 1999, in Pasig City,
and within the jurisdiction of this Honorable
Court, the accused being previously united in
lawful marriage with Karla Y. Medina-Capili
and without said marriage having been legally
dissolved or annulled, did then and there
willfully, unlawfully and feloniously contract a
second marriage with Shirley G. Tismo, to the
damage and prejudice of the latter. cSIADa
Contrary to law. 3
Petitioner thereafter filed a Motion to Suspend
Proceedings alleging that: (1) there is a
pending civil case for declaration of nullity of
the second marriage before the RTC of
Antipolo City filed by Karla Y. Medina-Capili;
(2) in the event that the marriage is declared
null and void, it would exculpate him from the
charge of bigamy; and (3) the pendency of the
civil case for the declaration of nullity of the
second marriage serves as a prejudicial
question in the instant criminal case.
Consequently, the arraignment and pre-trial
were reset by the RTC of Pasig City, in view of
the filing of the Motion to Suspend
Proceedings filed by petitioner.
In the interim, the RTC of Antipolo City
rendered a decision declaring the voidness or
incipient invalidity of the second marriage
between petitioner and private respondent on
the ground that a subsequent marriage
contracted by the husband during the lifetime
of the legal wife is void from the beginning.
Thereafter, the petitioner accused filed his
Manifestation and Motion (to Dismiss) praying
for the dismissal of the criminal case for
bigamy filed against him on the ground that
the second marriage between him and private
respondent had already been declared void by
the RTC. EHaASD
In an Order 4 dated July 7, 2006, the RTC of
Pasig City granted petitioner's Manifestation
and Motion to Dismiss, to wit:
The motion is anchored on the allegation that
this case should be dismissed as a decision
dated December 1, 2004 had already been
rendered by the Regional Trial Court of
Antipolo City, Branch 72 in Civil Case No. 01-
6043 (entitled: "Karla Medina-Capili versus
James Walter P. Capili and Shirley G. Tismo,"
a case for declaration of nullity of marriage)
nullifying the second marriage between James
Walter P. Capili and Shirley G. Tismo and said
decision is already final.
In the opposition filed by the private
prosecutor to the motion, it was stated, among
others, that the issues raised in the civil case
are not similar or intimately related to the
issue in this above-captioned case and that
the resolution of the issues in said civil case
would not determine whether or not the
criminal action may proceed.
WHEREFORE, after a judicious evaluation of
the issue and arguments of the parties, this
Court is of the humble opinion that there is
merit on the Motion to dismiss filed by the
accused as it appears that the second
marriage between James Walter P. Capili and
Shirley G. Tismo had already been nullified by
the Regional Trial Court, Branch 72 of
Antipolo City which has declared "the
voidness, non-existent or incipient invalidity"
of the said second marriage. As such, this
Court submits that there is no more bigamy to
speak of. IDSETA
SO ORDERED.
Aggrieved, private respondent filed an appeal
before the CA.
Thus, in a Decision 5 dated February 1, 2008,
the CA reversed and set aside the RTC's
decision. The fallo reads:
WHEREFORE, premises considered, the Order
dated 07 July 2006 of the Regional Trial Court
of Pasig City, Branch 152 in Crim. Case No.
128370 is REVERSED and SET ASIDE. The
case is remanded to the trial court for further
proceedings. No costs.
SO ORDERED. 6
Petitioner then filed a Motion for
Reconsideration against said decision, but the
same was denied in a Resolution 7 dated July
24, 2008.
Accordingly, petitioner filed the present
petition for review on certiorari alleging that:
1. THERE IS NO LEGAL BASIS FOR THE
COURT OF APPEALS TO DISREGARD
EXISTING JURISPRUDENCE PRONOUNCED
BY THIS HONORABLE SUPREME COURT
AND TO REVERSE THE ORDER DATED JULY
7, 2006 OF THE TRIAL COURT (REGIONAL
TRIAL COURT, PASIG CITY, BRANCH 152)
ISSUED IN CRIMINAL CASE NO. 128370
GRANTING THE MOTION TO DISMISS THE
CASE OF BIGAMY AGAINST PETITIONER,
INASMUCH AS THE ISSUANCE OF THE SAID
ORDER IS BASED ON THE FINDINGS
AND/OR FACTS OF THE CASE IN THE
DECISION OF THE REGIONAL TRIAL COURT
OF ANTIPOLO CITY, BRANCH 72, IN CIVIL
CASE NO. 01-6043 AND THE CONCLUDING
AND DISPOSITIVE PORTION IN THE SAID
DECISION WHICH STATES THAT, AFTER
PERUSAL OF THE EVIDENCE ON RECORD
AND THE TESTIMONIES OF WITNESSES . . .,
THE MARRIAGE BETWEEN PETITIONER
JAMES WALTER P. CAPILI AND PRIVATE
RESPONDENT SHIRLEY G. TISMO, IS
HEREBY NULL AND VOID. CSaHDT
2. THE COURT OF APPEALS GRAVELY
ERRED AND ABUSED ITS DISCRETION
AMOUNTING TO LACK OF JURISDICTION IN
HOLDING THAT THE DECLARATION OF
NULLITY OF MARRIAGE BETWEEN
PETITIONER JAMES WALTER P. CAPILI AND
SHIRLEY G. TISMO BY THE REGIONAL TRIAL
COURT OF ANTIPOLO CITY, BRANCH 72 IN
ITS DECISION IN CIVIL CASE NO. 01-6043, IS
ON THE GROUND THAT IT IS BIGAMOUS IN
NATURE, DESPITE THE ABSENCE OF ANY
SUCH FINDINGS OR FACTS ON WHICH IT IS
BASED IN VIOLATION OF ARTICLE VIII,
SECTION 14 OF THE 1987 CONSTITUTION,
AND IN CONCLUDING THAT THE SAID
DECLARATION OF NULLITY OF MARRIAGE IS
NOT A GROUND FOR DISMISSAL OF THE
BIGAMY CASE AGAINST THE PETITIONER,
WHICH RULING IS NOT IN ACCORDANCE
WITH THE FACTS OF THE CASE OF THE
SAID DECISION AND WHICH IS CONTRARY
TO APPLICABLE LAWS AND ESTABLISHED
JURISPRUDENCE.
3. THE CASE OF TENEBRO V. COURT OF
APPEALS SPEAKS FOR ITSELF. IT IS AN
EXCEPTION TO EXISTING JURISPRUDENCE
INVOLVING DECLARATION OF NULLITY OF
MARRIAGE AND IS APPLICABLE ONLY TO
THE SET OF FACTS IN THE SAID CASE, AND
THE GROUND FOR DECLARATION OF
NULLITY OF MARRIAGE IS PSYCHOLOGICAL
INCAPACITY, HENCE, THERE IS NO LEGAL
BASIS FOR ABANDONING EXISTING
JURISPRUDENCE AS WHERE IN THE
INSTANT CASE THE GROUND FOR
DECLARATION OF NULLITY OF MARRIAGE IS
VIOLATIVE OF ARTICLE 3 IN RELATION TO
ARTICLE 4 OF THE FAMILY CODE. CTaSEI
4. THE COURT OF APPEALS GRAVELY
ERRED IN NOT HOLDING THAT THE USE BY
RESPONDENT SHIRLEY G. TISMO OF THE
SURNAME "CAPILI" IS ILLEGAL INASMUCH
AS THE DECISION OF THE REGIONAL TRIAL
COURT OF ANTIPOLO CITY, BRANCH 72 IN
CIVIL CASE NO. 01-6043 DECLARING NULL
AND VOID THE MARRIAGE BETWEEN
JAMES WALTER P. CAPILI AND SHIRLEY G.
TISMO HAD LONG BECOME FINAL AND
UNAPPEALABLE AS OF THE DATE OF THE
SAID DECISION ON DECEMBER 1, 2004 AND
DULY RECORDED IN THE RECORDS OF
ENTRIES IN THE CORRESPONDING BOOK IN
THE OFFICE OF THE CIVIL REGISTRAR OF
PASIG CITY AND THE NATIONAL STATISTICS
OFFICE. 8
In essence, the issue is whether or not the
subsequent declaration of nullity of the
second marriage is a ground for dismissal of
the criminal case for bigamy.
We rule in the negative.
Article 349 of the Revised Penal Code defines
and penalizes the crime of bigamy as follows:
Art. 349. Bigamy. The penalty of prision
mayor shall be imposed upon any person who
shall contract a second or subsequent
marriage before the former marriage has been
legally dissolved, or before the absent spouse
has been declared presumptively dead by
means of a judgment rendered in the proper
proceedings. SaHIEA
The elements of the crime of bigamy,
therefore, are: (1) the offender has been legally
married; (2) the marriage has not been legally
dissolved or, in case his or her spouse is
absent, the absent spouse could not yet be
presumed dead according to the Civil Code; (3)
that he contracts a second or subsequent
marriage; and (4) that the second or
subsequent marriage has all the essential
requisites for validity. 9
In the present case, it appears that all the
elements of the crime of bigamy were present
when the Information was filed on June 28,
2004.
It is undisputed that a second marriage
between petitioner and private respondent was
contracted on December 8, 1999 during the
subsistence of a valid first marriage between
petitioner and Karla Y. Medina-Capili
contracted on September 3, 1999. Notably, the
RTC of Antipolo City itself declared the
bigamous nature of the second marriage
between petitioner and private respondent.
Thus, the subsequent judicial declaration of
the second marriage for being bigamous in
nature does not bar the prosecution of
petitioner for the crime of bigamy.
Jurisprudence is replete with cases holding
that the accused may still be charged with the
crime of bigamy, even if there is a subsequent
declaration of the nullity of the second
marriage, so long as the first marriage was
still subsisting when the second marriage was
celebrated. cACEaI
In Jarillo v. People, 10 the Court affirmed the
accused's conviction for bigamy ruling that
the crime of bigamy is consummated on the
celebration of the subsequent marriage
without the previous one having been
judicially declared null and void, viz.:
The subsequent judicial declaration of the
nullity of the first marriage was immaterial
because prior to the declaration of nullity, the
crime had already been consummated.
Moreover, petitioner's assertion would only
delay the prosecution of bigamy cases
considering that an accused could simply file
a petition to declare his previous marriage
void and invoke the pendency of that action as
a prejudicial question in the criminal case. We
cannot allow that.
The outcome of the civil case for annulment of
petitioner's marriage to [private complainant]
had no bearing upon the determination of
petitioner's innocence or guilt in the criminal
case for bigamy, because all that is required
for the charge of bigamy to prosper is that the
first marriage be subsisting at the time the
second marriage is contracted.
Thus, under the law, a marriage, even one
which is void or voidable, shall be deemed
valid until declared otherwise in a judicial
proceeding. In this case, even if petitioner
eventually obtained a declaration that his first
marriage was void ab initio, the point is, both
the first and the second marriage were
subsisting before the first marriage was
annulled. 11 DEICTS
In like manner, the Court recently upheld the
ruling in the aforementioned case and ruled
that what makes a person criminally liable for
bigamy is when he contracts a second or
subsequent marriage during the subsistence
of a valid first marriage. It further held that
the parties to the marriage should not be
permitted to judge for themselves its nullity,
for the same must be submitted to the
judgment of competent courts and only when
the nullity of the marriage is so declared can it
be held as void, and so long as there is no
such declaration the presumption is that the
marriage exists. Therefore, he who contracts a
second marriage before the judicial
declaration of the first marriage assumes the
risk of being prosecuted for bigamy. 12
Finally, it is a settled rule that the criminal
culpability attaches to the offender upon the
commission of the offense, and from that
instant, liability appends to him until
extinguished as provided by law. 13 It is clear
then that the crime of bigamy was committed
by petitioner from the time he contracted the
second marriage with private respondent.
Thus, the finality of the judicial declaration of
nullity of petitioner's second marriage does
not impede the filing of a criminal charge for
bigamy against him. CHIaTc
WHEREFORE, premises considered, the
petition is DENIED. The Decision dated
February 1, 2008 and Resolution dated July
24, 2008 of the Court of Appeals in CA-G.R.
CR No. 30444 are hereby AFFIRMED.
SO ORDERED.
Velasco, Jr., Abad, Mendoza and Leonen, JJ.,
concur.
FIRST DIVISION
[G.R. No. 132529. February 2, 2001.]
SUSAN NICDAO CARIO, petitioner, vs.
SUSAN YEE CARIO, respondent.
Gancayco Balasbas & Associates for
petitioner.
Atty. Agapito P. Oquindo, Jr. for respondent.
SYNOPSIS
SPO4 Santiago S. Carino contracted two
marriages. The first was with petitioner with
whom he begot two (2) children, while the
second, during the subsistence of the first,
was with respondent with whom he had no
issue. When he died in 1988 petitioner and
respondent filed claims for monetary benefits
and financial assistance from various
government agencies. Petitioner collected
P146,000 from MBAI, PCCUI, commutation,
NAPOLCOM and Pag-Ibig, while respondent
collected P21,000 from GSIS and SSS.
Respondent, in an action for collection, sought
to recover half the amount collected by
petitioner. She claimed that she had no
knowledge of the previous marriage with
petitioner and presented evidence that the
same was contracted without the necessary
marriage license. Judgment was rendered by
the trial court in favor of respondent which
was affirmed on appeal by the Court of
Appeals. Hence, this recourse.
The absence of a marriage license, as a
general rule, renders the marriage void ab
initio. However, for purposes of remarriage, a
prior judicial declaration of nullity of the
previous marriage must be obtained. For other
purposes no such judicial action is required.
Otherwise, the second marriage would also be
void. ICcaST
Article 148 of the Civil Code governs the
property regime of bigamous marriages. Only
the properties acquired by the parties through
their actual joint contribution of money,
property, or industry shall be owned by them
in common in proportion to their respective
contributions. While union of parties who are
legally capacitated and not barred by any
impediment to contract marriage is governed
by co-ownership under Article 147 of the Civil
Code. Thus, the P146,000 from MBAI, PCCUI,
commutation, NAPOLCOM and Pag-Ibig
earned by the deceased, in the absence of
evidence that respondent contributed money,
property or industry in the acquisition of these
monetary benefits, is owned by the deceased
alone and respondent has no right whatsoever
to claim the same. However, petitioner is
entitled to one-half of the subject "death
benefits" as her share in the property regime
and the other half shall pass by to petitioner's
children as the decedent's legal heirs.
SYLLABUS
1. CIVIL LAW; FAMILY CODE;
MARRIAGE; FINAL JUDGMENT DECLARING
PREVIOUS MARRIAGE VOID, NECESSARY
FOR PURPOSES OF SECOND MARRIAGE.
Under Article 40 of the Family Code, the
absolute nullity of a previous marriage may be
invoked for purposes of remarriage on the
basis solely of a final judgment declaring such
previous marriage void. Meaning, where the
absolute nullity of a previous marriage is
sought to be invoked for purposes of
contracting a second marriage, the sole basis
acceptable in law, for said projected marriage
to be free from legal infirmity, is a final
judgment declaring the previous marriage
void. However, for purposes other than
remarriage, no judicial action is necessary to
declare a marriage an absolute nullity. For
other purposes, such as but not limited to the
determination of heirship, legitimacy or
illegitimacy of a child, settlement of estate,
dissolution of property regime, or a criminal
case for that matter, the court may pass upon
the validity of marriage even after the death of
the parties thereto, and even in a suit not
directly instituted to question the validity of
said marriage, so long as it is essential to the
determination of the case. In such instances,
evidence must be adduced, testimonial or
documentary, to prove the existence of
grounds rendering such a previous marriage
an absolute nullity. These need not be limited
solely to an earlier final judgment of a court
declaring such previous marriage void.
DaAETS
2. ID.; PERSONS AND FAMILY
RELATIONS; MARRIAGE; LICENSE,
REQUIRED; CASE AT BAR. Under the Civil
Code, which was the law in force when the
marriage of petitioner Susan Nicdao and the
deceased was solemnized in 1969, a valid
marriage license is a requisite of marriage,
and the absence thereof, subject to certain
exceptions, renders the marriage void ab
initio. In the case at bar, there is no question
that the marriage of petitioner and the
deceased does not fall within the marriages
exempt from the license requirement. A
marriage license, therefore, was indispensable
to the validity of their marriage. This
notwithstanding, the records reveal that the
marriage contract of petitioner and the
deceased bears no marriage license number
and, as certified by the Local Civil Registrar of
San Juan, Metro Manila, their office has no
record of such marriage license. It is beyond
cavil, therefore, that the marriage between
petitioner Susan Nicdao and the deceased,
having been solemnized without the necessary
marriage license, and not being one of the
marriages exempt from the marriage license
requirement, is undoubtedly void ab initio.
3. ID.; FAMILY CODE; FINAL JUDGMENT
DECLARING PREVIOUS MARRIAGE VOID,
NECESSARY FOR PURPOSES OF SECOND
MARRIAGE; WITHOUT SUCH DECLARATION,
SECOND MARRIAGE IS ALSO VOID.
Accordingly, the declaration in the instant
case of nullity of the previous marriage of the
deceased and petitioner Susan Nicdao does
not validate the second marriage of the
deceased with respondent Susan Yee. The fact
remains that their marriage was solemnized
without first obtaining a judicial decree
declaring the marriage of petitioner Susan
Nicdao and the deceased void. Hence, the
marriage of respondent Susan Yee and the
deceased is, likewise, void ab initio. SCaITA
4. ID.; ID.; BIGAMOUS MARRIAGE;
WAGES AND SALARIES EARNED BY EACH
PARTY BELONG TO HIM OR HER
EXCLUSIVELY. Under Article 148 of the
Family Code, which refers to the property
regime of bigamous marriages, adulterous
relationships, relationships in a state of
concubine, relationships where both man and
woman are married to other persons, multiple
alliances of the same married man, the
properties acquired by the parties through
their actual joint contribution shall belong to
the co-ownership. Wages and salaries earned
by each party belong to him or her exclusively.
Then too, contributions in the form of care of
the home, children and household, or spiritual
or moral inspiration, are excluded in this
regime.
5. ID.; ID.; ID.; ID.; CASE AT BAR.
Considering that the marriage of respondent
Susan Yee and the deceased is a bigamous
marriage, having been solemnized during the
subsistence of a previous marriage then
presumed to be valid (between petitioner and
the deceased), the application of Article 148 is
therefore in order. The disputed P146,000.00
from MBAI [AFP Mutual Benefit Association,
Inc.], NAPOLCOM, Commutation, Pag-ibig,
and PCCUI, are clearly remunerations,
incentives and benefits from governmental
agencies earned by the deceased as a police
officer. Unless respondent Susan Yee presents
proof to the contrary, it could not be said that
she contributed money, property or industry
in the acquisition of these monetary benefits.
Hence, they are not owned in common by
respondent and the deceased, but belong to
the deceased alone and respondent has no
right whatsoever to claim the same. By
intestate succession, the said "death benefits"
of the deceased shall pass to his legal heirs.
And, respondent, not being the legal wife of
the deceased is not one of them.
6. ID.; ID.; VOID MARRIAGES OF
PARTIES LEGALLY CAPACITATED AND NOT
BARRED BY ANY IMPEDIMENT; PROPERTY
RELATIONSHIP GOVERNED BY CO-
OWNERSHIP; CASE AT BAR. As to the
property regime of petitioner Susan Nicdao
and the deceased, Article 147 of the Family
Code governs. This article applies to unions of
parties who are legally capacitated and not
barred by any impediment to contract
marriage, but whose marriage is nonetheless
void for other reasons, like the absence of a
marriage license. In contrast to Article 148,
under the foregoing article, wages and salaries
earned by either party during the cohabitation
shall be owned by the parties in equal shares
and will be divided equally between them,
even if only one party earned the wages and
the other did not contribute thereto.
Conformably, even if the disputed "death
benefits" were earned by the deceased alone
as a government employee, Article 147 creates
a co-ownership in respect thereto, entitling the
petitioner to share one-half thereof. As there is
no allegation of bad faith in the present case,
both parties of the first marriage are
presumed to be in good faith. Thus, one-half
of the subject "death benefits" under scrutiny
shall go to the petitioner as her share in the
property regime, and the other half pertaining
to the deceased shall pass by, intestate
succession, to his legal heirs, namely, his
children with Susan Nicdao.
DECISION
YNARES-SANTIAGO, J p:
The issue for resolution in the case at bar
hinges on the validity of the two marriages
contracted by the deceased SPO4 Santiago S.
Cario, whose "death benefits" is now the
subject of the controversy between the two
Susans whom he married. SCcHIE
Before this Court is a petition for review on
certiorari seeking to set aside the decision 1 of
the Court of Appeals in CA-G.R. CV No.
51263, which affirmed in toto the decision 2 of
the Regional Trial Court of Quezon City,
Branch 87, in Civil Case No. Q-93-18632.
During the lifetime of the late SPO4 Santiago
S. Cario, he contracted two marriages, the
first was on June 20, 1969, with petitioner
Susan Nicdao Cario (hereafter referred to as
Susan Nicdao), with whom he had two
offsprings, namely, Sahlee and Sandee Cario;
and the second was on November 10, 1992,
with respondent Susan Yee Cario (hereafter
referred to as Susan Yee), with whom he had
no children in their almost ten year
cohabitation starting way back in 1982.
In 1988, SPO4 Santiago S. Cario became ill
and bedridden due to diabetes complicated by
pulmonary tuberculosis. He passed away on
November 23, 1992, under the care of Susan
Yee, who spent for his medical and burial
expenses. Both petitioner and respondent filed
claims for monetary benefits and financial
assistance pertaining to the deceased from
various government agencies. Petitioner Susan
Nicdao was able to collect a total of
P146,000.00 from "MBAI, PCCUI,
Commutation, NAPOLCOM, [and] Pag-ibig," 3
while respondent Susan Yee received a total of
P21,000.00 from "GSIS Life, Burial (GSIS) and
burial (SSS)." 4
On December 14, 1993, respondent Susan Yee
filed the instant case for collection of sum of
money against petitioner Susan Nicdao
praying, inter alia, that petitioner be ordered
to return to her at least one-half of the one
hundred forty-six thousand pesos
(P146,000.00) collectively denominated as
"death benefits" which she (petitioner) received
from "MBAI, PCCUI, Commutation,
NAPOLCOM, [and] Pag-ibig." Despite service of
summons, petitioner failed to file her answer,
prompting the trial court to declare her in
default.
Respondent Susan Yee admitted that her
marriage to the deceased took place during
the subsistence of, and without first obtaining
a judicial declaration of nullity of, the
marriage between petitioner and the deceased.
She, however, claimed that she had no
knowledge of the previous marriage and that
she became aware of it only at the funeral of
the deceased, where she met petitioner who
introduced herself as the wife of the deceased.
To bolster her action for collection of sum of
money, respondent contended that the
marriage of petitioner and the deceased is void
ab initio because the same was solemnized
without the required marriage license. In
support thereof, respondent presented: 1) the
marriage certificate of the deceased and the
petitioner which bears no marriage license
number; 5 and 2) a certification dated March
9, 1994, from the Local Civil Registrar of San
Juan, Metro Manila, which reads
This is to certify that this Office has no record
of marriage license of the spouses SANTIAGO
CARINO (sic) and SUSAN NICDAO, who are
married in this municipality on June 20,
1969. Hence, we cannot issue as requested a
true copy or transcription of Marriage License
number from the records of this archives.
This certification is issued upon the request of
Mrs. Susan Yee Cario for whatever legal
purpose it may serve. 6
On August 28, 1995, the trial court ruled in
favor of respondent, Susan Yee, holding as
follows:
WHEREFORE, the defendant is hereby
ordered to pay the plaintiff the sum of
P73,000.00, half of the amount which was
paid to her in the form of death benefits
arising from the death of SPO4 Santiago S.
Cario, plus attorney 's fees in the amount of
P5,000.00, and costs of suit.
IT IS SO ORDERED. 7
On appeal by petitioner to the Court of
Appeals, the latter affirmed in toto the
decision of the trial court. Hence, the instant
petition, contending that:
I.
THE HONORABLE COURT OF APPEALS
GRAVELY ERRED IN AFFIRMING THE
FINDINGS OF THE LOWER COURT THAT
VDA. DE CONSUEGRA VS. GSIS IS
APPLICABLE TO THE CASE AT BAR.
II.
THE HONORABLE COURT OF APPEALS
GRAVELY ERRED IN APPLYING EQUITY IN
THE INSTANT CASE INSTEAD OF THE CLEAR
AND UNEQUIVOCAL MANDATE OF THE
FAMILY CODE.
III.
THE HONORABLE COURT OF APPEALS
GRAVELY ERRED IN NOT FINDING THE
CASE OF VDA. DE CONSUEGRA VS GSIS TO
HAVE BEEN MODIFIED, AMENDED AND
EVEN ABANDONED BY THE ENACTMENT OF
THE FAMILY CODE. 8
Under Article 40 of the Family Code, the
absolute nullity of a previous marriage may be
invoked for purposes of remarriage on the
basis solely of a final judgment declaring such
previous marriage void. Meaning, where the
absolute nullity of a previous marriage is
sought to be invoked for purposes of
contracting a second marriage, the sole basis
acceptable in law, for said projected marriage
to be free from legal infirmity, is a final
judgment declaring the previous marriage
void. 9 However, for purposes other than
remarriage, no judicial action is necessary to
declare a marriage an absolute nullity. For
other purposes, such as but not limited to the
determination of heirship, legitimacy or
illegitimacy of a child, settlement of estate,
dissolution of property regime, or a criminal
case for that matter, the court may pass upon
the validity of marriage even after the death of
the parties thereto, and even in a suit not
directly instituted to question the validity of
said marriage, so long as it is essential to the
determination of the case. 10 In such
instances, evidence must be adduced,
testimonial or documentary, to prove the
existence of grounds rendering such a
previous marriage an absolute nullity. These
need not be limited solely to an earlier final
judgment of a court declaring such previous
marriage void. 11 aDCIHE
It is clear therefore that the Court is clothed
with sufficient authority to pass upon the
validity of the two marriages in this case, as
the same is essential to the determination of
who is rightfully entitled to the subject "death
benefits" of the deceased.
Under the Civil Code, which was the law in
force when the marriage of petitioner Susan
Nicdao and the deceased was solemnized in
1969, a valid marriage license is a requisite of
marriage, 12 and the absence thereof, subject
to certain exceptions, 13 renders the marriage
void ab initio. 14
In the case at bar, there is no question that
the marriage of petitioner and the deceased
does not fall within the marriages exempt from
the license requirement. A marriage license,
therefore, was indispensable to the validity of
their marriage. This notwithstanding, the
records reveal that the marriage contract of
petitioner and the deceased bears no marriage
license number and, as certified by the Local
Civil Registrar of San Juan, Metro Manila,
their office has no record of such marriage
license. In Republic v. Court of Appeals, 15
the Court held that such a certification is
adequate to prove the non-issuance of a
marriage license. Absent any circumstance of
suspicion, as in the present case, the
certification issued by the local civil registrar
enjoys probative value, he being the officer
charged under the law to keep a record of all
data relative to the issuance of a marriage
license.
Such being the case, the presumed validity of
the marriage of petitioner and the deceased
has been sufficiently overcome. It then became
the burden of petitioner to prove that their
marriage is valid and that they secured the
required marriage license. Although she was
declared in default before the trial court,
petitioner could have squarely met the issue
and explained the absence of a marriage
license in her pleadings before the Court of
Appeals and this Court. But petitioner
conveniently avoided the issue and chose to
refrain from pursuing an argument that will
put her case in jeopardy. Hence, the presumed
validity of their marriage cannot stand.
It is beyond cavil, therefore, that the marriage
between petitioner Susan Nicdao and the
deceased, having been solemnized without the
necessary marriage license, and not being one
of the marriages exempt from the marriage
license requirement, is undoubtedly void ab
initio.
It does not follow from the foregoing
disquisition, however, that since the marriage
of petitioner and the deceased is declared void
ab initio, the "death benefits" under scrutiny
would now be awarded to respondent Susan
Yee. To reiterate, under Article 40 of the
Family Code, for purposes of remarriage, there
must first be a prior judicial declaration of the
nullity of a previous marriage, though void,
before a party can enter into a second
marriage, otherwise, the second marriage
would also be void.
Accordingly, the declaration in the instant
case of nullity of the previous marriage of the
deceased and petitioner Susan Nicdao does
not validate the second marriage of the
deceased with respondent Susan Yee. The fact
remains that their marriage was solemnized
without first obtaining a judicial decree
declaring the marriage of petitioner Susan
Nicdao and the deceased void. Hence, the
marriage of respondent Susan Yee and the
deceased is, likewise, void ab initio.
One of the effects of the declaration of nullity
of marriage is the separation of the property of
the spouses according to the applicable
property regime. 16 Considering that the two
marriages are void ab initio, the applicable
property regime would not be absolute
community or conjugal partnership of
property, but rather, be governed by the
provisions of Articles 147 and 148 of the
Family Code on "Property Regime of Unions
Without Marriage."
Under Article 148 of the Family Code, which
refers to the property regime of bigamous
marriages, adulterous relationships,
relationships in a state of concubine,
relationships where both man and woman are
married to other persons, multiple alliances of
the same married man, 17
". . . [O]nly the properties acquired by both of
the parties through their actual joint
contribution of money, property, or industry
shall be owned by them in common in
proportion to their respective contributions . .
."
In this property regime, the properties
acquired by the parties through their actual
joint contribution shall belong to the co-
ownership. Wages and salaries earned by each
party belong to him or her exclusively. Then
too, contributions in the form of care of the
home, children and household, or spiritual or
moral inspiration, are excluded in this regime.
18
Considering that the marriage of respondent
Susan Yee and the deceased is a bigamous
marriage, having been solemnized during the
subsistence of a previous marriage then
presumed to be valid (between petitioner and
the deceased), the application of Article 148 is
therefore in order.
The disputed P146,000.00 from MBAI [AFP
Mutual Benefit Association, Inc.], NAPOLCOM,
Commutation, Pag-ibig, and PCCUI, are
clearly renumerations, * incentives and
benefits from governmental agencies earned
by the deceased as a police officer. Unless
respondent Susan Yee presents proof to the
contrary, it could not be said that she
contributed money, property or industry in
the acquisition of these monetary benefits.
Hence, they are not owned in common by
respondent and the deceased, but belong to
the deceased alone and respondent has no
right whatsoever to claim the same. By
intestate succession, the said "death benefits"
of the deceased shall pass to his legal heirs.
And, respondent, not being the legal wife of
the deceased is not one of them.
As to the property regime of petitioner Susan
Nicdao and the deceased, Article 147 of the
Family Code governs. This article applies to
unions of parties who are legally capacitated
and not barred by any impediment to contract
marriage, but whose marriage is nonetheless
void for other reasons, like the absence of a
marriage license. Article 147 of the Family
Code reads
ARTICLE 147. When a man and a
woman who are capacitated to marry each
other, live exclusively with each other as
husband and wife without the benefit of
marriage or under a void marriage, their
wages and salaries shall be owned by them in
equal shares and the property acquired by
both of them through their work or industry
shall be governed by the rules on co-
ownership.
In the absence of proof to the contrary,
properties acquired while they lived together
shall be presumed to have been obtained by
their joint efforts, work or industry, and shall
be owned by them in equal shares. For
purposes of this Article, a party who did not
participate in the acquisition by the other
party of any property shall be deemed to have
contributed jointly in the acquisition thereof if
the former's efforts consisted in the care and
maintenance of the family and of the
household.
xxx xxx xxx
When only one of the parties to a void
marriage is in good faith, the share of the
party in bad faith in the co-ownership shall be
forfeited in favor of their common children. In
case of default of or waiver by any or all of the
common children or their descendants, each
vacant share shall belong to the respective
surviving descendants. In the absence of
descendants, such share shall belong to the
innocent party. In all cases, the forfeiture
shall take place upon termination of the
cohabitation.
In contrast to Article 148, under the foregoing
article, wages and salaries earned by either
party during the cohabitation shall be owned
by the parties in equal shares and will be
divided equally between them, even if only one
party earned the wages and the other did not
contribute thereto. 19 Conformably, even if
the disputed "death benefits" were earned by
the deceased alone as a government employee,
Article 147 creates a co-ownership in respect
thereto, entitling the petitioner to share one-
half thereof. As there is no allegation of bad
faith in the present case, both parties of the
first marriage are presumed to be in good
faith. Thus, one-half of the subject "death
benefits" under scrutiny shall go to the
petitioner as her share in the property regime,
and the other half pertaining to the deceased
shall pass by, intestate succession, to his legal
heirs, namely, his children with Susan Nicdao.
In affirming the decision of the trial court, the
Court of Appeals relied on the case of Vda. de
Consuegra v. Government Service Insurance
System, 20 where the Court awarded one-half
of the retirement benefits of the deceased to
the first wife and the other half, to the second
wife, holding that:
". . . [S]ince the defendant's first marriage has
not been dissolved or declared void the
conjugal partnership established by that
marriage has not ceased. Nor has the first wife
lost or relinquished her status as putative heir
of her husband under the new Civil Code,
entitled to share in his estate upon his death
should she survive him. Consequently,
whether as conjugal partner in a still
subsisting marriage or as such putative heir
she has an interest in the husband's share in
the property here in dispute . . ." And with
respect to the right of the second wife, this
Court observed that although the second
marriage can be presumed to be void ab initio
as it was celebrated while the first marriage
was still subsisting, still there is need for
judicial declaration of such nullity. And
inasmuch as the conjugal partnership formed
by the second marriage was dissolved before
judicial declaration of its nullity, "[t]he only
just and equitable solution in this case would
be to recognize the right of the second wife to
her share of one-half in the property acquired
by her and her husband, and consider the
other half as pertaining to the conjugal
partnership of the first marriage." 21
It should be stressed, however, that the
aforecited decision is premised on the rule
which requires a prior and separate judicial
declaration of nullity of marriage. This is the
reason why in the said case, the Court
determined the rights of the parties in
accordance with their existing property
regime.
WHEREFORE, the petition is GRANTED, and
the decision of the Court of Appeals in CA-
G.R. CV No. 51263 which affirmed the
decision of the Regional Trial Court of Quezon
City ordering petitioner to pay respondent the
sum of P73,000.00 plus attorney's fees in the
amount of P5,000.00, is REVERSED and SET
ASIDE. The complaint in Civil Case No. Q-93-
18632, is hereby DISMISSED. No
pronouncement as to costs. cTaDHS
SO ORDERED.

In Domingo v. Court of Appeals, 22 however, Davide, Jr., C .J ., Kapunan and Pardo, JJ.,
the Court, construing Article 40 of the Family concur.
Code, clarified that a prior and separate
declaration of nullity of a marriage is an all Puno, J., is on official leave.
important condition precedent only for
purposes of remarriage. That is, if a party who
is previously married wishes to contract a
second marriage, he or she has to obtain first
a judicial decree declaring the first marriage
void, before he or she could contract said
second marriage, otherwise the second
marriage would be void. The same rule applies
even if the first marriage is patently void
because the parties are not free to determine
for themselves the validity or invalidity or their
marriage. However, for purposes other than to
remarry, like for filing a case for collection of
sum of money anchored on a marriage
claimed to be valid, no prior and separate
judicial declaration of nullity is necessary. All
that a party has to do is to present evidence,
testimonial or documentary, that would prove
that the marriage from which his or her rights
flow is in fact valid. Thereupon, the court, if
material to the determination of the issues
before it, will rule on the status of the
marriage involved and proceed to determine
the rights of the parties in accordance with
the applicable laws and jurisprudence. Thus,
in Nial v. Bayadog, 23 the Court explained:
EICSTa

[T]he court may pass upon the validity of

marriage even in a suit not directly instituted
to question the same so long as it is essential
to the determination of the case. This is
without prejudice to any issue that may arise
in the case. When such need arises, a final
judgment of declaration of nullity is necessary
even if the purpose is other than to remarry.
The clause "on the basis of a final judgment
declaring such previous marriage void " in
Article 40 of the Family Code connoted that
such final judgment need not be obtained only
for purpose of remarriage.
SECOND DIVISION
[G.R. No. 189121. July 31, 2013.]
AMELIA GARCIA-QUIAZON, JENNETH
QUIAZON and MARIA JENNIFER QUIAZON,
petitioners, vs. MA. LOURDES BELEN, for
and in behalf of MARIA LOURDES ELISE
QUIAZON, respondent.
DECISION
PEREZ, J p:
This is a Petition for Review on Certiorari filed
pursuant to Rule 45 of the Revised Rules of
Court, primarily assailing the 28 November
2008 Decision rendered by the Ninth Division
of the Court of Appeals in CA-G.R. CV No.
88589, 1 the decretal portion of which states:
WHEREFORE, premises considered, the
appeal in hereby DENIED. The assailed
Decision dated March 11, 2005, and the Order
dated March 24, 2006 of the Regional Trial
Court, Branch 275, Las Pias City are
AFFIRMED in toto. 2
The Facts
This case started as a Petition for Letters of
Administration of the Estate of Eliseo Quiazon
(Eliseo), filed by herein respondents who are
Eliseo's common-law wife and daughter. The
petition was opposed by herein petitioners
Amelia Garcia-Quiazon (Amelia) to whom
Eliseo was married. Amelia was joined by her
children, Jenneth Quiazon (Jenneth) and
Maria Jennifer Quiazon (Jennifer).
Eliseo died intestate on 12 December 1992.
On 12 September 1994, Maria Lourdes Elise
Quiazon (Elise), represented by her mother,
Ma. Lourdes Belen (Lourdes), filed a Petition
for Letters of Administration before the
Regional Trial Court (RTC) of Las Pias City. 3
In her Petition docketed as SP Proc. No. M-
3957, Elise claims that she is the natural
child of Eliseo having been conceived and born
at the time when her parents were both
capacitated to marry each other. Insisting on
the legal capacity of Eliseo and Lourdes to
marry, Elise impugned the validity of Eliseo's
marriage to Amelia by claiming that it was
bigamous for having been contracted during
the subsistence of the latter's marriage with
one Filipito Sandico (Filipito). To prove her
filiation to the decedent, Elise, among others,
attached to the Petition for Letters of
Administration her Certificate of Live Birth 4
signed by Eliseo as her father. In the same
petition, it was alleged that Eliseo left real
properties worth P2,040,000.00 and personal
properties worth P2,100,000.00. In order to
preserve the estate of Eliseo and to prevent
the dissipation of its value, Elise sought her
appointment as administratrix of her late
father's estate.
Claiming that the venue of the petition was
improperly laid, Amelia, together with her
children, Jenneth and Jennifer, opposed the
issuance of the letters of administration by
filing an Opposition/Motion to Dismiss. 5 The
petitioners asserted that as shown by his
Death Certificate, 6 Eliseo was a resident of
Capas, Tarlac and not of Las Pias City, at the
time of his death. Pursuant to Section 1, Rule
73 of the Revised Rules of Court, 7 the
petition for settlement of decedent's estate
should have been filed in Capas, Tarlac and
not in Las Pias City. In addition to their
claim of improper venue, the petitioners
averred that there are no factual and legal
bases for Elise to be appointed administratix
of Eliseo's estate.
In a Decision 8 dated 11 March 2005, the RTC
directed the issuance of Letters of
Administration to Elise upon posting the
necessary bond. The lower court ruled that
the venue of the petition was properly laid in
Las Pias City, thereby discrediting the
position taken by the petitioners that Eliseo's
last residence was in Capas, Tarlac, as
hearsay. The dispositive of the RTC decision
reads:
Having attained legal age at this time and
there being no showing of any disqualification
or incompetence to serve as administrator, let
letters of administration over the estate of the
decedent Eliseo Quiazon, therefore, be issued
to petitioner, Ma. Lourdes Elise Quiazon, after
the approval by this Court of a bond in the
amount of P100,000.00 to be posted by her. 9
On appeal, the decision of the trial court was
affirmed in toto in the 28 November 2008
Decision 10 rendered by the Court of Appeals
in CA-G.R. CV No. 88589. In validating the
findings of the RTC, the Court of Appeals held
that Elise was able to prove that Eliseo and
Lourdes lived together as husband and wife by
establishing a common residence at No. 26
Everlasting Road, Phase 5, Pilar Village, Las
Pias City, from 1975 up to the time of
Eliseo's death in 1992. For purposes of fixing
the venue of the settlement of Eliseo's estate,
the Court of Appeals upheld the conclusion
reached by the RTC that the decedent was a
resident of Las Pias City. The petitioners'
Motion for Reconsideration was denied by the
Court of Appeals in its Resolution 11 dated 7
August 2009.
The Issues
The petitioners now urge Us to reverse the
assailed Court of Appeals Decision and
Resolution on the following grounds:
I. THE COURT OF APPEALS GRAVELY
ERRED IN AFFIRMING THAT ELISEO
QUIAZON WAS A RESIDENT OF LAS PIAS
AND THEREFORE[,] THE PETITION FOR
LETTERS OF ADMINISTRATION WAS
PROPERLY FILED WITH THE [RTC] OF LAS
PIAS[;]
II. THE COURT OF APPEALS GRAVELY
ERRED IN DECLARING THAT AMELIA
GARCIA-QUIAZON WAS NOT LEGALLY
MARRIED TO ELISEO QUIAZON DUE TO
PRE-EXISTING MARRIAGE[;] [AND]
III. THE COURT OF APPEALS
OVERLOOKED THE FACT THAT ELISE
QUIAZON HAS NOT SHOWN ANY INTEREST
IN THE PETITION FOR LETTERS OF
ADMINISTRATION[.] 12
The Court's Ruling
We find the petition bereft of merit.
Under Section 1, Rule 73 of the Rules of
Court, the petition for letters of administration
of the estate of a decedent should be filed in
the RTC of the province where the decedent
resides at the time of his death:
Sec. 1. Where estate of deceased persons
settled. If the decedent is an inhabitant of
the Philippines at the time of his death,
whether a citizen or an alien, his will shall be
proved, or letters of administration granted,
and his estate settled, in the Court of First
Instance [now Regional Trial Court] in the
province in which he resides at the time of his
death, and if he is an inhabitant of a foreign
country, the Court of First Instance [now
Regional Trial Court] of any province in which
he had estate. The court first taking
cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the
exclusion of all other courts. The jurisdiction
assumed by a court, so far as it depends on
the place of residence of the decedent, or of
the location of his estate, shall not be
contested in a suit or proceeding, except in an
appeal from that court, in the original case, or
when the want of jurisdiction appears on the
record. (Emphasis supplied).
The term "resides" connotes ex vi termini
"actual residence" as distinguished from "legal
residence or domicile." This term "resides,"
like the terms "residing" and "residence," is
elastic and should be interpreted in the light
of the object or purpose of the statute or rule
in which it is employed. In the application of
venue statutes and rules Section 1, Rule 73
of the Revised Rules of Court is of such nature
residence rather than domicile is the
significant factor. 13 Even where the statute
uses the word "domicile" still it is construed as
meaning residence and not domicile in the
technical sense. 14 Some cases make a
distinction between the terms "residence" and
"domicile" but as generally used in statutes
fixing venue, the terms are synonymous, and
convey the same meaning as the term
"inhabitant." 15 In other words, "resides"
should be viewed or understood in its popular
sense, meaning, the personal, actual or
physical habitation of a person, actual
residence or place of abode. 16 It signifies
physical presence in a place and actual stay
thereat. 17 Venue for ordinary civil actions
and that for special proceedings have one and
the same meaning. 18 As thus defined,
"residence," in the context of venue provisions,
means nothing more than a person's actual
residence or place of abode, provided he
resides therein with continuity and
consistency. 19
Viewed in light of the foregoing principles, the
Court of Appeals cannot be faulted for
affirming the ruling of the RTC that the venue
for the settlement of the estate of Eliseo was
properly laid in Las Pias City. It is evident
from the records that during his lifetime,
Eliseo resided at No. 26 Everlasting Road,
Phase 5, Pilar Village, Las Pias City. For this
reason, the venue for the settlement of his
estate may be laid in the said city.
In opposing the issuance of letters of
administration, the petitioners harp on the
entry in Eliseo's Death Certificate that he is a
resident of Capas, Tarlac where they insist his
estate should be settled. While the recitals in
death certificates can be considered proofs of
a decedent's residence at the time of his
death, the contents thereof, however, is not
binding on the courts. Both the RTC and the
Court of Appeals found that Eliseo had been
living with Lourdes, deporting themselves as
husband and wife, from 1972 up to the time of
his death in 1995. This finding is consistent
with the fact that in 1985, Eliseo filed an
action for judicial partition of properties
against Amelia before the RTC of Quezon City,
Branch 106, on the ground that their
marriage is void for being bigamous. 20 That
Eliseo went to the extent of taking his marital
feud with Amelia before the courts of law
renders untenable petitioners' position that
Eliseo spent the final days of his life in Tarlac
with Amelia and her children. It disproves
rather than supports petitioners' submission
that the lower courts' findings arose from an
erroneous appreciation of the evidence on
record. Factual findings of the trial court,
when affirmed by the appellate court, must be
held to be conclusive and binding upon this
Court. 21
Likewise unmeritorious is petitioners'
contention that the Court of Appeals erred in
declaring Amelia's marriage to Eliseo as void
ab initio. In a void marriage, it was though no
marriage has taken place, thus, it cannot be
the source of rights. Any interested party may
attack the marriage directly or collaterally. A
void marriage can be questioned even beyond
the lifetime of the parties to the marriage. 22
It must be pointed out that at the time of the
celebration of the marriage of Eliseo and
Amelia, the law in effect was the Civil Code,
and not the Family Code, making the ruling in
Nial v. Bayadog 23 applicable four-square to
the case at hand. In Nial, the Court, in no
uncertain terms, allowed therein petitioners to
file a petition for the declaration of nullity of
their father's marriage to therein respondent
after the death of their father, by
contradistinguishing void from voidable
marriages, to wit:
[C]onsequently, void marriages can be
questioned even after the death of either party
but voidable marriages can be assailed only
during the lifetime of the parties and not after
death of either, in which case the parties and
their offspring will be left as if the marriage
had been perfectly valid. That is why the
action or defense for nullity is imprescriptible,
unlike voidable marriages where the action
prescribes. Only the parties to a voidable
marriage can assail it but any proper
interested party may attack a void marriage.
24
It was emphasized in Nial that in a void
marriage, no marriage has taken place and it
cannot be the source of rights, such that any
interested party may attack the marriage
directly or collaterally without prescription,
which may be filed even beyond the lifetime of
the parties to the marriage. 25
Relevant to the foregoing, there is no doubt
that Elise, whose successional rights would be
prejudiced by her father's marriage to Amelia,
may impugn the existence of such marriage
even after the death of her father. The said
marriage may be questioned directly by filing
an action attacking the validity thereof, or
collaterally by raising it as an issue in a
proceeding for the settlement of the estate of
the deceased spouse, such as in the case at
bar. Ineluctably, Elise, as a compulsory heir,
26 has a cause of action for the declaration of
the absolute nullity of the void marriage of
Eliseo and Amelia, and the death of either
party to the said marriage does not extinguish
such cause of action.
Having established the right of Elise to
impugn Eliseo's marriage to Amelia, we now
proceed to determine whether or not the
decedent's marriage to Amelia is void for being
bigamous.
Contrary to the position taken by the
petitioners, the existence of a previous
marriage between Amelia and Filipito was
sufficiently established by no less than the
Certificate of Marriage issued by the Diocese
of Tarlac and signed by the officiating priest of
the Parish of San Nicolas de Tolentino in
Capas, Tarlac. The said marriage certificate is
a competent evidence of marriage and the
certification from the National Archive that no
information relative to the said marriage exists
does not diminish the probative value of the
entries therein. We take judicial notice of the
fact that the first marriage was celebrated
more than 50 years ago, thus, the possibility
that a record of marriage can no longer be
found in the National Archive, given the
interval of time, is not completely remote.
Consequently, in the absence of any showing
that such marriage had been dissolved at the
time Amelia and Eliseo's marriage was
solemnized, the inescapable conclusion is that
the latter marriage is bigamous and, therefore,
void ab initio. 27
Neither are we inclined to lend credence to the
petitioners' contention that Elise has not
shown any interest in the Petition for Letters
of Administration.
Section 6, Rule 78 of the Revised Rules of
Court lays down the preferred persons who
are entitled to the issuance of letters of
administration, thus:
Sec. 6. When and to whom letters of
administration granted. If no executor is
named in the will, or the executor or executors
are incompetent, refuse the trust, or fail to
give bond, or a person dies intestate,
administration shall be granted:
(a) To the surviving husband or wife, as
the case may be, or next of kin, or both, in the
discretion of the court, or to such person as
such surviving husband or wife, or next of kin,
requests to have appointed, if competent and
willing to serve;
(b) If such surviving husband or wife, as
the case may be, or next of kin, or the person
selected by them, be incompetent or unwilling,
or if the husband or widow, or next of kin,
neglects for thirty (30) days after the death of
the person to apply for administration or to
request that administration be granted to
some other person, it may be granted to one
or more of the principal creditors, if competent
and willing to serve;
(c) If there is no such creditor competent
and willing to serve, it may be granted to such
other person as the court may select.
Upon the other hand, Section 2 of Rule 79
provides that a petition for Letters of
Administration must be filed by an interested
person, thus:
Sec. 2. Contents of petition for letters of
administration. A petition for letters of
administration must be filed by an interested
person and must show, so far as known to the
petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the
heirs, and the names and residences of the
creditors, of the decedent;
(c) The probable value and character of the
property of the estate;
(d) The name of the person for whom
letters of administration are prayed.
But no defect in the petition shall render void
the issuance of letters of administration.
An "interested party," in estate proceedings, is
one who would be benefited in the estate,
such as an heir, or one who has a claim
against the estate, such as a creditor. Also, in
estate proceedings, the phrase "next of kin"
refers to those whose relationship with the
decedent is such that they are entitled to
share in the estate as distributees. 28
In the instant case, Elise, as a compulsory
heir who stands to be benefited by the
distribution of Eliseo's estate, is deemed to be
an interested party. With the overwhelming
evidence on record produced by Elise to prove
her filiation to Eliseo, the petitioners'
pounding on her lack of interest in the
administration of the decedent's estate, is just
a desperate attempt to sway this Court to
reverse the findings of the Court of Appeals.
Certainly, the right of Elise to be appointed
administratix of the estate of Eliseo is on good
grounds. It is founded on her right as a
compulsory heir, who, under the law, is
entitled to her legitime after the debts of the
estate are satisfied. 29 Having a vested right
in the distribution of Eliseo's estate as one of
his natural children, Elise can rightfully be
considered as an interested party within the
purview of the law.
WHEREFORE, premises considered, the
petition is DENIED for lack of merit.
Accordingly, the Court of Appeals assailed 28
November 2008 Decision and 7 August 2009
Resolution, are AFFIRMED in toto.
SO ORDERED.
Carpio, Brion, Del Castillo and Perlas-
Bernabe, JJ., concur.
SECOND DIVISION
[G.R. No. 164493. March 12, 2010.]
JOCELYN M. SUAZO, petitioner, vs.
ANGELITO SUAZO and REPUBLIC OF THE
PHILIPPINES, respondents.
DECISION
BRION, J p:
We resolve the appeal filed by petitioner
Jocelyn Suazo (Jocelyn) from the July 14,
2004 Decision of the Court of Appeals (CA) 1
in CA-G.R. CV No. 62443, which reversed the
January 29, 1999 judgment of the Regional
Trial Court (RTC), Branch 119, Pasay City in
Civil Case No. 97-1282. 2 The reversed RTC
decision nullified Jocelyn's marriage with
respondent Angelito Suazo (Angelito) on the
ground of psychological incapacity. cEAHSC
THE FACTS
Jocelyn and Angelito were 16 years old when
they first met in June 1985; they were
residents of Laguna at that time. After months
of courtship, Jocelyn went to Manila with
Angelito and some friends. Having been gone
for three days, their parents sought Jocelyn
and Angelito and after finding them, brought
them back to Bian, Laguna. Soon thereafter,
Jocelyn and Angelito's marriage was arranged
and they were married on March 3, 1986 in a
ceremony officiated by the Mayor of Bian.
Without any means to support themselves,
Jocelyn and Angelito lived with Angelito's
parents after their marriage. They had by this
time stopped schooling. Jocelyn took odd jobs
and worked for Angelito's relatives as
household help. Angelito, on the other hand,
refused to work and was most of the time
drunk. Jocelyn urged Angelito to find work
and violent quarrels often resulted because of
Jocelyn's efforts. CIAcSa
Jocelyn left Angelito sometime in July 1987.
Angelito thereafter found another woman with
whom he has since lived. They now have
children.
Ten years after their separation, or on October
8, 1997, Jocelyn filed with the RTC a petition
for declaration of nullity of marriage under
Article 36 of the Family Code, as amended.
She claimed that Angelito was psychologically
incapacitated to comply with the essential
obligations of marriage. In addition to the
above historical narrative of their relationship,
she alleged in her complaint:
xxx xxx xxx
8. That from the time of their marriage up
to their separation in July 1987, their
relationship had been marred with bitter
quarrels which caused unbearable physical
and emotional pains on the part of the
plaintiff because defendant inflicted physical
injuries upon her every time they had a
troublesome encounter; AHEDaI
9. That the main reason for their quarrel
was always the refusal of the defendant to
work or his indolence and his excessive
drinking which makes him psychologically
incapacitated to perform his marital
obligations making life unbearably bitter and
intolerable to the plaintiff causing their
separation in fact in July 1987;
10. That such psychological incapacity of
the defendant started from the time of their
marriage and became very apparent as time
went and proves to be continuous, permanent
and incurable;
xxx xxx xxx
Angelito did not answer the
petition/complaint. Neither did he submit
himself to a psychological examination with
psychologist Nedy Tayag (who was presumably
hired by Jocelyn). ICAcTa
The case proceeded to trial on the merits after
the trial court found that no collusion existed
between the parties. Jocelyn, her aunt
Maryjane Serrano, and the psychologist
testified at the trial.
In her testimony, Jocelyn essentially repeated
the allegations in her petition, including the
alleged incidents of physical beating she
received from Angelito. On cross-examination,
she remained firm on these declarations but
significantly declared that Angelito had not
treated her violently before they were married.
Asst. Sol. Gen. Kim Briguera:
Q. Can you describe your relationship with
the respondent before you got married?
HCaIDS
A. He always go (sic) to our house to court
me.
Q. Since you cited violence, after
celebration of marriage, will you describe his
behavioural (sic) pattern before you got appear(s) incurable. The disorder was present
married? at the time of the wedding and became
manifest thereafter due to stresses and
A. He show (sic) kindness, he always come pressure of married life. He apparently grew
(sic) to the house. up in a dysfunctional family. Could you
Q. So you cannot say his behavioral explain what does chronic mean? DTAESI
pattern composing of violent nature before you A. Chronic is a clinical language which
got married (sic), is there any signs (sic) of means incurable it has been there long before
violence? he entered marriage apparently, it came
A. None maam (sic), because we were not during early developmental (sic) Basic trust
sweethearts. was not develop (sic).

Q. Even to other people? Q. And this long standing proportion (sic).

A. He also quarrel (sic). 3 HSDCTA A. That no amount of psychological

behavioral help to cure such because
Maryjane Serrano corroborated parts of psychological disorder are not detrimental to
Jocelyn's testimony. men but to others particularly and this (sic)
because the person who have this kind of
When the psychologist took the witness stand, disorder do not know that they have this kind
she declared: of disorder.
Q. What about the respondent, did you Q. So in other words, permanent?
also make clinical interpretation of his
behavior? A. Permanent and incurable.

A. Apparently, the behavior and actuation Q. You also said that this psychological
of the respondent during the time of the disorder is present during the wedding or at
marriage the respondent is suffering from the time of the wedding or became manifest
anti-social personality Disorder this is a thereafter? ECaTDc
serious and severe apparently incurable (sic).
This disorder is chronic and long-standing A. Yes, ma'am."
before the marriage. xxx xxx xxx
Q. And you based your interpretation on Court:
the report given by the petitioner?
Q. Is there a clinical findings (sic)?
A. Based on the psychological examination
wherein there is no pattern of lying when I A. That is the clinical findings. Personality
examined her, the petitioner was found to be Disorder labeled on Anti-Social Personality
very responsive, coherent, relevant to marital Disorder (sic).
relationship with respondent. ACTIHa
Q. How was shown during the marriage
Q. And the last page of Exhibit "E" which (sic)?
is your report there is a statement rather on
the last page, last paragraph which state: It is A. The physical abuses on the petitioner
the clinical opinion of the undersigned that also correlated without any employment
marriage between the two, had already hit exploitative and silent (sic) on the part of the
bottom rock (sic) even before the actual respondent is clearly Anti-Social Disorder.
celebration of marriage. Respondent('s) Q. Do the respondent know that he has
immature, irresponsible and callous that kind of psychological disorder (sic)?
emotionality practically harbors (sic) the ACTEHI
possibility of having blissful relationship. His
general behavior fulfill(s) the diagnostic A. Usually a person suffering that
criteria for a person suffering from Anti Social psychological disorder will not admit that they
Personality Disorder. Such disorder is serious are suffering that kind of disorder (sic).
and severe and it interferred (sic) in his
capacity to provide love, caring, concern and Court:
responsibility to his family. The disorder is
chronic and long-standing in proportion and
Q. So because of this Anti-Social Disorder significant, respondent allowed wife to work as
the petitioner suffers a lot (sic)? housemaid instead of he who should provide
and the petitioner never receive and enjoy her
A. Yes, because the petitioner is a victim earning for the five months that she work and
of hardships of marital relation to the it is also the petitioner who took sustainance
respondent (sic). of the vices. (sic)
Court: Q. And because of that Anti-Social
Q. Was the Anti-Social Personality disorder he had not shown love to the
Disorder also shown to the parents (sic)? petitioner? TcHDIA

A. Yes, according to the petitioner, A. From the very start the respondent has
respondent never give due respect more often no emotion to sustain the marital relationship
than not he even shouted at them for no but what he need is to sustain his vices thru
apparent reason (sic). DACIHc the petitioner (sic).

Court: Court:

Q. Did you say Anti-Social Disorder Q. What are the vices?

incurable (sic)? A. Alcohol and gambling.
A. Yes, sir. Court:
Court: Q. And this affected psychological
Q. Is there a physical violence (sic)? incapacity to perform marital obligation?

A. Actually, I could see the petitioner is A. Not only that up to this time from my
tortured mentally of the respondent (sic). clinical analysis of Anti-Social Personality
Disorder, he is good for nothing person. 4
Court: ADCTac

Q. How was the petitioner tortured? The psychologist also identified the
CAcIES Psychological Report she prepared. The Report
pertinently states: 5
A. She was able to counter-act by the time
she was separated by the respondent (sic). Report on the psychological condition of
JOCELYN M. SUAZO, a petitioner for "Nullity
Court: of Marriage" versus ANGELITO D. SUAZO
Q. Do you mean to tell us that Anti-Social GENERAL DATA
disorder is incurable?
[This pertains to Jocelyn's]
A. Yes, sir.
BRIEF MARITAL HISTORY
Court:
xxx xxx xxx
Q. Why did you know?
Husband is Angelito D. Suazo, 28 years old
A. Anti-Social disorder is incurable again reached 3rd year high school, a part time
because the person itself, the respondent is tricycle driver, eldest among 4 siblings. Father
not aware that this kind of personality affect is a machine operator, described to be an
the other party (sic). HCaEAT alcoholic, womanizer and a heavy gambler.
While mother is a sales agent. It was a
Court:
common knowledge within their vicinity that
Q. This Anti-Social behavior is naturally she was also involved in an illicit relationship.
affected the petitioner (sic)? Familial relationship was described to be
stormy, chaotic whose bickering and
A. They do not have children because squabbles were part and parcel of their day to
more often than not the respondent is under day living. ECaAHS
the influence of alcohol, they do not have
peaceful harmonious relationship during the TEST RESULTS AND EVALUATION
less than one year and one thing what is
Projective data reveal an introvert person
whose impulse life is adequately suppressed
so much so that it does not create inner
tension and anxiety. She is fully equipped in
terms of drives and motivation particularly in
uplifting not, only her socio-emotional image
but was as her morale. She may be sensitive
yet capable of containing the effect of such
sensitiveness; in order to remain in goodstead
(sic) with her immediate environment.
She is pictured as a hard-working man (sic)
who looks forward for a better future in spite
of difficulties she had gone through in the
past. She is fully aware of external realities of
life that she set simple life goals which is (sic)
commensurate with her capabilities and
limitations. However, she needs to prioritize
her interest in order to direct her energy
toward specific goals. Her tolerance for
frustration appears to be at par with her
coping mechanism that she is able to
discharge negative trends appropriately.
CEcaTH
REMARKS:
[Already cited in full in the psychologist's
testimony quoted above] 6
The Office of the Solicitor General
representing the Republic of the Philippines
strongly opposed the petition for declaration of
nullity of the marriage. Through a to said marriage by her relatives. The
Certification filed with the RTC, it argued that
the psychologist failed to examine and test
Angelito; thus, what she said about him was
purely hearsay.
THE RTC RULING
The RTC annulled the marriage under the
following reasoning:
While there is no particular instance setforth
(sic) in the law that a person may be
considered as psychologically incapacitated,
there as (sic) some admitted grounds that
would render a person to be unfit to comply
with his marital obligation, such as
"immaturity, i.e., lack of an effective sense of
rational judgment and responsibility,
otherwise peculiar to infants (like refusal of
the husband to support the family or
excessive dependence on parents or peer
group approval) and habitual alcoholism, or
the condition by which a person lives for the
next drink and the next drinks" (The Family
Code of the Phils., Alicia Sempio-Diy, p. 39,
1988 ed.) aTEScI
The evidence presented by the petitioner and
the testimony of the petitioner and Dr. Tayag,
points (sic) to one thing that the petitioner
failed to establish a harmonious family life
with the respondent. On the contrary, the
respondent has not shown love and respect to
the petitioner manifested by the former's being
irresponsible, immature, jobless, gambler,
drunkard and worst of all a wife beater. The
petitioner, unable to bear any longer the
misbehavior and attitude of the respondent,
decided, after one year and four months of
messy days, to leave the respondent.
In this regard, the petitioner was able to prove
that right from the start of her married life
with the respondent, she already suffered from
maltreatment, due to physical injuries
inflicted upon her and that she was the one
who worked as a housemaid of a relative of
her husband to sustain the latter's niece (sic)
and because they were living with her
husband's family, she was obliged to do the
household chores an indication that she is
a battered wife coupled with the fact that she
served as a servant in his (sic) husband's
family. aTHASC
This situation that the petitioner had
underwent may be attributed to the fact that
at the time of their marriage, she and her
husband are still young and was forced only
petitioner and the respondent had never
developed the feeling of love and respect,
instead, the respondent blamed the
petitioner's family for said early marriage and
not to his own liking.
Applying the principles and the requisites of
psychological incapacity enunciated by this
Court in Santos v. Court of Appeals, 7 the
RTC concluded:
The above findings of the psychologist
[referring to the psychologist' testimony
quoted above] would only tend to show that
the respondent was, indeed, suffering from
psychological incapacity which is not only
grave but also incurable.
Likewise, applying the principles set forth in
the case of Republic vs. Court of Appeals and
Molina, 268 SCRA 198, wherein the Supreme
Court held that: ISADET
. . . [At this point, the RTC cited the pertinent
Molina ruling]
The Court is satisfied that the evidence
presented and the testimony of the petitioner
and Dr. Familiar (sic) [the psychologist who
testified in this case was Nedy Tayag, not a
Dr. Familiar] attesting that there is
psychological incapacity on the part of the
respondent to comply with the essential
marital obligations has been sufficiently and
clearly proven and, therefore, petitioner is
entitled to the relief prayed for.
A claim that the marriage is valid as there is
no psychological incapacity of the respondent
is a speculation and conjecture and without
moral certainty. This will enhanced (sic) a
greater tragedy as the battered wife/petitioner
will still be using the surname of the
respondent, although they are now separated,
and a grim and sad reminder of her husband
who made here a slave and a punching bag
during the short span of her marriage with
him. The law on annulment should be liberally
construed in favor of an innocent suffering
petitioner otherwise said law will be an
instrument to protect persons with mental
illness like the serious anti-social behavior of
herein respondent. 8 HCaDET
THE CA RULING
The Republic appealed the RTC decision to the
CA. The CA reversed the RTC decision, ruling
that:
True, as stated in Marcos vs. Marcos, 343
SCRA 755, the guidelines set in Santos vs.
Court of Appeals and Republic vs. Court of
Appeals do not require that a physician
personally examine the person to be declared
psychologically incapacitated. The Supreme
Court adopted the totality of evidence
approach which allows the fact of
psychological incapacity to be drawn from
evidence that medically or clinically identify
the root causes of the illness. If the totality of
the evidence is enough to sustain a finding of
psychological incapacity, then actual medical
examination of the person concerned need not
be resorted to. Applied in Marcos, however,
the aggregate testimony of the aggrieved
spouse, children, relatives and the social
worker were not found to be sufficient to prove
psychological incapacity, in the absence of any
evaluation of the respondent himself, the
person whose mental and psychological
capacity was in question. ASICDH
In the case at bench, there is much scarcer
evidence to hold that the respondent was
psychologically incapable of entering into the
marriage state, that is, to assume the
essential duties of marriage due to an
underlying psychological illness. Only the wife
gave first-hand testimony on the behavior of
the husband, and it is inconclusive. As
observed by the Court in Marcos, the
respondent may have failed to provide
material support to the family and has
resorted to physical abuse, but it is still
necessary to show that they were
manifestations of a deeper psychological
malaise that was clinically or medically
identified. The theory of the psychologist that
the respondent was suffering from an anti-
social personality syndrome at the time of the
marriage was not the product of any adequate
medical or clinical investigation. The evidence
that she got from the petitioner, anecdotal at
best, could equally show that the behavior of
the respondent was due simply to causes like
immaturity or irresponsibility which are not
equivalent to psychological incapacity, Pesca
vs. Pesca, 356 SCRA 588, or the failure or
refusal to work could have been the result of
rebelliousness on the part of one who felt that
he had been forced into a loveless marriage. In
any event, the respondent was not under a
permanent compulsion because he had later
on shown his ability to engage in productive
work and more stable relationships with
another. The element of permanence or
incurability that is one of the defining
characteristic of psychological incapacity is
not present. cDTaSH
There is no doubt that for the short period
that they were under the same roof, the
married life of the petitioner with the
respondent was an unhappy one. But the
marriage cannot for this reason be
extinguished. As the Supreme Court intimates
in Pesca, our strict handling of Article 36 will
be a reminder of the inviolability of the
marriage institution in our country and the
foundation of the family that the law seeks to
protect. The concept of psychological
incapacity is not to be a mantra to legalize
what in reality are convenient excuses of
parties to separate and divorce.
THE PETITION
Jocelyn now comes to us via the present
petition to challenge and seek the reversal of
the CA ruling based on the following
arguments:
1. The Court of Appeals went beyond what
the law says, as it totally disregarded the legal
basis of the RTC in declaring the marriage null
and void Tuason v. Tuason (256 SCRA 158;
to be accurate, should be Tuason v. Court of
Appeals) holds that "the finding of the Trial
Court as to the existence or non-existence of
petitioner's psychological incapacity at the
time of the marriage is final and binding on us
(the Supreme Court); petitioner has not
sufficiently shown that the trial court's factual
findings and evaluation of the testimonies of
private respondent's witnesses vis--vis
petitioner's defenses are clearly and manifestly
erroneous"; SEDICa
2. Article 36 of the Family Code did not
define psychological incapacity; this omission
was intentional to give the courts a wider
discretion to interpret the term without being
shackled by statutory parameters. Article 36
though was taken from Canon 1095 of the
New Code of Canon Law, which gives three
conditions that would make a person unable
to contract marriage from mental incapacity
as follows:
"1095. They are incapable of contracting
marriage:
(1) who lack the sufficient use of reason;
(2) who suffer from grave lack of discretion
of judgment concerning essential matrimonial
rights and duties which are to be mutually
given and accepted;
(3) who are not capable of assuming the
essential obligations of matrimony due to
causes of a psychic nature." IEcDCa
The decision of the RTC, Jocelyn claims,
intelligently conforms to these criteria. The
RTC, being clothed with discretionary
functions, applied its finding of psychological
incapacity based on existing jurisprudence
and the law itself which gave lower court
magistrates enough latitude to define what
constitutes psychological incapacity. On the
contrary, she further claims, the OSG relied
on generalities without being specific on why
it is opposed to the dissolution of a marriage
that actually exists only in name.
Simply stated, we face the issue of whether
there is basis to nullify Jocelyn's marriage
with Angelito under Article 36 of the Family
Code.
THE COURT'S RULING
We find the petition devoid of merit. The CA
committed no reversible error of law in setting
aside the RTC decision, as no basis exists to
declare Jocelyn's marriage with Angelito a
nullity under Article 36 of the Family Code
and its related jurisprudence. AaIDHS
The Law, Molina and Te
Article 36 of the Family Code provides that a
marriage contracted by any party who, at the
time of the celebration, was psychologically
incapacitated to comply with the essential
marital obligations of marriage, shall likewise
be void even if such incapacity becomes
manifest only after its solemnization.
A unique feature of this law is its intended
open-ended application, as it merely
introduced an abstract concept
psychological incapacity that disables
compliance with the contractual obligations of
marriage without any concrete definition or,
at the very least, an illustrative example. We
must therefore apply the law based on how
the concept of psychological incapacity was
shaped and developed in jurisprudence.
aSADIC
Santos v. Court of Appeals 9 declared that
psychological incapacity must be
characterized by (a) gravity; (b) juridical
antecedence; and (c) incurability. It should
refer to "no less than a mental (not physical)
incapacity that causes a party to be truly
incognitive of the basic marital covenants that
concomitantly must be assumed and
discharged by the parties to the marriage." It
must be confined to "the most serious cases of
personality disorders clearly demonstrative of
an utter insensitivity or inability to give
meaning and significance to the marriage." 10
The Court laid down more definitive guidelines
in the interpretation and application of the law
in Republic v. Court of Appeals 11 (Molina) as
follows:
(1) The burden of proof to show the nullity
of the marriage belongs to the plaintiff. Any
doubt should be resolved in favor of the
existence and continuation of the marriage
and against its dissolution and nullity. This is
rooted in the fact that both our Constitution
and our laws cherish the validity of marriage
and unity of the family. Thus, our
Constitution devotes an entire Article on the
Family, recognizing it "as the foundation of the
nation." It decrees marriage as legally
"inviolable," thereby protecting it from
dissolution at the whim of the parties. Both
the family and marriage are to be "protected"
by the state. HASDcC
The Family Code echoes this constitutional
edict on marriage and the family and
emphasizes their permanence, inviolability
and solidarity.
(2) The root cause of the psychological
incapacity must be (a) medically or clinically
identified, (b) alleged in the complaint, (c)
sufficiently proven by experts and (d) clearly
explained in the decision. Article 36 of the
Family Code requires that the incapacity must
be psychological not physical, although its
manifestations and/or symptoms may be
physical. The evidence must convince the
court that the parties or one of them was
mentally or psychically ill to such an extent
that the person could not have known the
obligations he was assuming, or knowing
them, could not have given valid assumption
thereof. Although no example of such
incapacity need be given here so as not to
limit the application of the provision under the
principle of ejusdem generis, nevertheless
such root cause must be identified as a
psychological illness and its incapacitating
nature fully explained. Expert evidence may
be given by qualified psychiatrists and clinical
psychologists. CDcaSA
(3) The incapacity must be proven to be
existing at "the time of the celebration" of the
marriage. The evidence must show that the
illness was existing when the parties
exchanged their "I do's." The manifestation of
the illness need not be perceivable at such
time, but the illness itself must have attached
at such moment, or prior thereto.
(4) Such incapacity must also be shown to
be medically or clinically permanent or
incurable. Such incurability may be absolute
or even relative only in regard to the other
spouse, not necessarily absolutely against
everyone of the same sex. Furthermore, such
incapacity must be relevant to the assumption
of marriage obligations, not necessarily to
those not related to marriage, like the exercise
of a profession or employment in a job. . . .
(5) Such illness must be grave enough to
bring about the disability of the party to
assume the essential obligations of marriage.
Thus, "mild characteriological peculiarities,
mood changes, occasional emotional
outbursts" cannot be accepted as root causes.
The illness must be shown as downright
incapacity or inability, not a refusal, neglect or
difficulty, much less ill will. In other words,
there is a natal or supervening disabling factor
in the person, an adverse integral element in
the personality structure that effectively
incapacitates the person from really accepting
and thereby complying with the obligations
essential to marriage. DCAHcT
(6) The essential marital obligations must
be those embraced by Articles 68 up to 71 of
the Family Code as regards the husband and
wife as well as Articles 220, 221 and 225 of
the same Code in regard to parents and their
children. Such non-complied marital
obligation(s) must also be stated in the
petition, proven by evidence and included in
the text of the decision.
(7) Interpretations given by the National
Appellate Matrimonial Tribunal of the Catholic
Church in the Philippines, while not
controlling or decisive, should be given great
respect by our courts . . .
(8) The trial court must order the
prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the state. No
decision shall be handed down unless the
Solicitor General issues a certification, which
will be quoted in the decision, briefly stating
therein his reasons for his agreement or
opposition, as the case may be, to the petition.
The Solicitor General, along with the
prosecuting attorney, shall submit to the
court such certification within fifteen (15) days
from the date the case is deemed submitted
for resolution of the court. The Solicitor
General shall discharge the equivalent
function of the defensor vinculi contemplated
under Canon 1095. 12 SECIcT
Molina, subsequent jurisprudence holds,
merely expounded on the basic requirements
of Santos. 13
A later case, Marcos v. Marcos, 14 further
clarified that there is no requirement that the
defendant/respondent spouse should be
personally examined by a physician or
psychologist as a condition sine qua non for
the declaration of nullity of marriage based on
psychological incapacity. Accordingly, it is no
longer necessary to introduce expert opinion
in a petition under Article 36 of the Family
Code if the totality of evidence shows that
psychological incapacity exists and its gravity,
juridical antecedence, and incurability can be
duly established. 15
Pesca v. Pesca 16 clarifies that the Molina
guidelines apply even to cases then already
pending, under the reasoning that the court's
interpretation or construction establishes the
contemporaneous legislative intent of the law;
the latter as so interpreted and construed
would thus constitute a part of that law as of
the date the statute is enacted. It is only when
a prior ruling of this Court finds itself later
overruled, and a different view is adopted, that
the new doctrine may have to be applied
prospectively in favor of parties who have
relied on the old doctrine and have acted in
good faith in accordance therewith under the
familiar rule of "lex prospicit, non respicit."
HIaTCc
On March 15, 2003, the Rule on Declaration
of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages (A.M. No.
08-11-10 SC, Rules) promulgated by the Court
took effect. Section 2 (d) of the Rules
pertinently provides:
(d) What to allege. A petition under
Article 36 of the Family Code shall specifically
allege the complete facts showing that either
or both parties were psychologically
incapacitated from complying with the
essential marital obligations of marriage at the
time of the celebration of marriage even if
such incapacity becomes manifest only after
its celebration.
The complete facts should allege the physical
manifestations, if any, as are indicative of
psychological incapacity at the time of the
celebration of the marriage but expert opinion
need not be alleged. DITEAc
Section 12 (d) of the Rules requires a pre-trial
brief containing all the evidence presented,
including expert opinion, if any, briefly stating
or describing the nature and purpose of these
pieces of evidence. Section 14 (b) requires the
court to consider during the pre-trial
conference the advisability of receiving expert
testimony and such other matters as may aid
in the prompt disposition of the petition.
Under Section 17 of the Rules, the grounds for
the declaration of the absolute nullity or
annulment of marriage must be proved.
All cases involving the application of Article
36 of the Family Code that came to us were
invariably decided based on the principles in
the cited cases. This was the state of law and
jurisprudence on Article 36 when the Court
decided Te v. Yu-Te 17 (Te) which revisited the
Molina guidelines.
Te begins with the observation that the
Committee that drafted the Family Code did
not give any examples of psychological
incapacity for fear that by so doing, it would
limit the applicability of the provision under
the principle of ejusdem generis; that the
Committee desired that the courts should
interpret the provision on a case-to-case basis,
guided by experience, by the findings of
experts and researchers in psychological
disciplines, and by decisions of church
tribunals that, although not binding on the
civil courts, may be given persuasive effect
since the provision itself was taken from the
Canon Law. 18 Te thus assumes it a basic
premise that the law is so designed to allow
some resiliency in its application. 19 ISAaTH
Te then sustained Santos' doctrinal value,
saying that its interpretation is consistent
with that of the Canon Law.
Going back to its basic premise, Te said:
Conscious of the law's intention that it is the
courts, on a case-to-case basis, that should
determine whether a party to a marriage is
psychologically incapacitated, the Court, in
sustaining the lower court's judgment of
annulment in Tuason v. Court of Appeals,
ruled that the findings of the trial court are
final and binding on the appellate courts.
Again, upholding the trial court's findings and
declaring that its decision was not a judgment
on the pleadings, the Court, in Tsoi v. Court of
Appeals, explained that when private
respondent testified under oath before the
lower court and was cross-examined by the
adverse party, she thereby presented evidence
in the form of testimony. Importantly, the
Court, aware of parallel decisions of Catholic
marriage tribunals, ruled that the senseless
and protracted refusal of one of the parties to
fulfill the marital obligation of procreating
children is equivalent to psychological
incapacity. IcAaSD
With this as backdrop, Te launched an attack
on Molina. It said that the resiliency with
which the concept should be applied and the
case-to-case basis by which the provision
should be interpreted, as so intended by its
framers, had, somehow, been rendered
ineffectual by the imposition of a set of strict
standards in Molina. Molina, to Te, has
become a strait-jacket, forcing all sizes to fit
into and be bound by it; wittingly or
unwittingly, the Court, in conveniently
applying Molina, has allowed diagnosed
sociopaths, schizophrenics, nymphomaniacs,
narcissists and the like, to continuously
debase and pervert the sanctity of marriage.
Te then enunciated the principle that each
case must be judged, not on the basis of a
priori assumptions, predilections or
generalizations, but according to its own facts.
Courts should interpret the provision on a
case-to-case basis, guided by experience, the
findings of experts and researchers in
psychological disciplines, and by decisions of
church tribunals. aDHCAE
As a final note though, Te expressly stated
that it is not suggesting the abandonment of
Molina, but that, following Antonio v. Reyes, it
merely looked at other perspectives that
should also govern the disposition of petitions
for declaration of nullity under Article 36. The
subsequent Ting v. Velez-Ting 20 follows Te's
lead when it reiterated that Te did not
abandon Molina; far from abandoning Molina,
it simply suggested the relaxation of its
stringent requirements, cognizant of the
explanation given by the Committee on the
Revision of the Rules on the rationale of the
Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable
Marriages: 21
To require the petitioner to allege in the
petition the particular root cause of the
psychological incapacity and to attach thereto
the verified written report of an accredited
psychologist or psychiatrist have proved to be
too expensive for the parties. They adversely
affect access to justice of poor litigants. It is
also a fact that there are provinces where
these experts are not available. Thus, the
Committee deemed it necessary to relax this
stringent requirement enunciated in the
Molina Case. The need for the examination of
a party or parties by a psychiatrist or clinical
psychologist and the presentation of
psychiatric experts shall now be determined
by the court during the pre-trial conference.
TEHIaD
Te, therefore, instead of substantially
departing from Molina, 22 merely stands for a
more flexible approach in considering
petitions for declaration of nullity of marriages
based on psychological incapacity. It is also
noteworthy for its evidentiary approach in
these cases, which it expounded on as follows:
By the very nature of Article 36, courts,
despite having the primary task and burden of
decision-making, must not discount but,
instead, must consider as decisive evidence
the expert opinion on the psychological and
mental temperaments of the parties.
xxx xxx xxx
Hernandez v. Court of Appeals emphasizes the
importance of presenting expert testimony to
establish the precise cause of a party's
psychological incapacity, and to show that it
existed at the inception of the marriage. And
as Marcos v. Marcos asserts, there is no
requirement that the person to be declared
psychologically incapacitated be personally
examined by a physician, if the totality of
evidence presented is enough to sustain a
finding of psychological incapacity. Verily, the
evidence must show a link, medical or the
like, between the acts that manifest
psychological incapacity and the psychological
disorder itself. cADEIa
This is not to mention, but we mention
nevertheless for emphasis, that the
presentation of expert proof presupposes a
thorough and in-depth assessment of the
parties by the psychologist or expert, for a
conclusive diagnosis of a grave, severe and
incurable presence of psychological
incapacity. 23 [Underscoring * supplied]
This evidentiary approach is repeated in Ting
v. Velez-Ting. 24
Under this evolutionary development, as
shown by the current string of cases on Article
36 of the Family Code, what should not be lost
on us is the intention of the law to confine the
application of Article 36 to the most serious
cases of personality disorders, clearly
demonstrative of an utter insensitivity or
inability to give meaning and significance to
the marriage; that the psychological illness
that must have afflicted a party at the
inception of the marriage should be a malady
so grave and permanent as to deprive one of
awareness of the duties and responsibilities of
the matrimonial bond he or she is about to
assume. 25 It is not enough that the
respondent, alleged to be psychologically
incapacitated, had difficulty in complying with
his marital obligations, or was unwilling to
perform these obligations. Proof of a natal or
supervening disabling factor an adverse
integral element in the respondent's
personality structure that effectively
incapacitated him from complying with his
essential marital obligations must be
shown. 26 Mere difficulty, refusal or neglect in
the performance of marital obligations or ill
will on the part of the spouse is different from
incapacity rooted in some debilitating
psychological condition or illness;
irreconcilable differences, sexual infidelity or
perversion, emotional immaturity and
irresponsibility and the like, do not by
themselves warrant a finding of psychological
incapacity under Article 36, as the same may
only be due to a person's refusal or
unwillingness to assume the essential
obligations of marriage. 27 ScTaEA
If all these sound familiar, they do, for they
are but iterations of Santos' juridical
antecedence, gravity and incurability
requisites. This is proof of Santos' continuing
doctrinal validity.
The Present Case
As the CA did, we find Jocelyn's evidence
insufficient to establish Angelito's
psychological incapacity to perform essential
marital obligations. We so conclude based on
our own examination of the evidence on
record, which we were compelled to undertake
because of the differences in the trial court
and the appellate court's appreciation and
evaluation of Jocelyn's presented evidence.
a. The Expert Opinion Evidence
Both the psychologist's testimony and the
psychological report did not conclusively show
the root cause, gravity and incurability of
Angelito's alleged psychological condition.
cCSDTI
We first note a critical factor in appreciating or
evaluating the expert opinion evidence the
psychologist's testimony and the psychological
evaluation report that Jocelyn presented.
Based on her declarations in open court, the
psychologist evaluated Angelito's psychological
condition only in an indirect manner she
derived all her conclusions from information
coming from Jocelyn whose bias for her cause
cannot of course be doubted. Given the source
of the information upon which the
psychologist heavily relied upon, the court
must evaluate the evidentiary worth of the
opinion with due care and with the application
of the more rigid and stringent set of
standards outlined above, i.e., that there must
be a thorough and in-depth assessment of the
parties by the psychologist or expert, for a
conclusive diagnosis of a psychological
incapacity that is grave, severe and incurable.
In saying this, we do not suggest that a
personal examination of the party alleged to
be psychologically incapacitated is mandatory;
jurisprudence holds that this type of
examination is not a mandatory requirement.
While such examination is desirable, we
recognize that it may not be practical in all
instances given the oftentimes estranged
relations between the parties. For a
determination though of a party's complete
personality profile, information coming from
persons intimately related to him (such as the
party's close relatives and friends) may be
helpful. This is an approach in the application
of Article 36 that allows flexibility, at the same
time that it avoids, if not totally obliterate, the
credibility gaps spawned by supposedly expert
opinion based entirely on doubtful sources of
information. aEAIDH
From these perspectives, we conclude that the
psychologist, using meager information
coming from a directly interested party, could
not have secured a complete personality
profile and could not have conclusively formed
an objective opinion or diagnosis of Angelito's
psychological condition. While the report or
evaluation may be conclusive with respect to
Jocelyn's psychological condition, this is not
true for Angelito's. The methodology employed
simply cannot satisfy the required depth and
comprehensiveness of examination required to
evaluate a party alleged to be suffering from a
psychological disorder. In short, this is not the
psychological report that the Court can rely on
as basis for the conclusion that psychological
incapacity exists.
Other than this credibility or reliability gap,
both the psychologist's report and testimony
simply provided a general description of
Angelito's purported anti-social personality
disorder, supported by the characterization of
this disorder as chronic, grave and incurable.
The psychologist was conspicuously silent,
however, on the bases for her conclusion or
the particulars that gave rise to the
characterization she gave. These particulars
are simply not in the Report, and neither can
they be found in her testimony. aDSHIC
For instance, the psychologist testified that
Angelito's personality disorder is chronic or
incurable; Angelito has long been afflicted
with the disorder prior to his marriage with
Jocelyn or even during his early
developmental stage, as basic trust was not
developed. However, she did not support this
declaration with any factual basis. In her
Report, she based her conclusion on the
presumption that Angelito apparently grew up
in a dysfunctional family. Quite noticeable,
though, is the psychologist's own equivocation
on this point she was not firm in her
conclusion for she herself may have realized
that it was simply conjectural. The veracity,
too, of this finding is highly suspect, for it was
based entirely on Jocelyn's assumed
knowledge of Angelito's family background
and upbringing.
Additionally, the psychologist merely
generalized on the questions of why and to
what extent was Angelito's personality
disorder grave and incurable, and on the
effects of the disorder on Angelito's awareness
of and his capability to undertake the duties
and responsibilities of marriage. SDTIHA
The psychologist therefore failed to provide the
answers to the more important concerns or
requisites of psychological incapacity, all of
which are critical to the success of Jocelyn's
cause.
b. Jocelyn's Testimony
The inadequacy and/or lack of probative value
of the psychological report and the
psychologist's testimony impel us to proceed
to the evaluation of Jocelyn's testimony, to
find out whether she provided the court with
sufficient facts to support a finding of
Angelito's psychological incapacity.
Unfortunately, we find Jocelyn's testimony to
be insufficient. Jocelyn merely testified on
Angelito's habitual drunkenness, gambling,
refusal to seek employment and the physical
beatings she received from him all of which
occurred after the marriage. Significantly, she
declared in her testimony that Angelito
showed no signs of violent behavior, assuming
this to be indicative of a personality disorder,
during the courtship stage or at the earliest
stages of her relationship with him. She
testified on the alleged physical beatings after
the marriage, not before or at the time of the
celebration of the marriage. She did not clarify
when these beatings exactly took place
whether it was near or at the time of
celebration of the marriage or months or years
after. This is a clear evidentiary gap that
materially affects her cause, as the law and its
related jurisprudence require that the
psychological incapacity must exist at the time
of the celebration of the marriage. DCIEac
Habitual drunkenness, gambling and refusal
to find a job, while indicative of psychological
incapacity, do not, by themselves, show
psychological incapacity. All these simply
indicate difficulty, neglect or mere refusal to
perform marital obligations that, as the cited
jurisprudence holds, cannot be considered to
be constitutive of psychological incapacity in
the absence of proof that these are
manifestations of an incapacity rooted in some
debilitating psychological condition or illness.
The physical violence allegedly inflicted on
Jocelyn deserves a different treatment. While
we may concede that physical violence on
women indicates abnormal behavioral or
personality patterns, such violence, standing
alone, does not constitute psychological
incapacity. Jurisprudence holds that there
must be evidence showing a link, medical or
the like, between the acts that manifest
psychological incapacity and the psychological
disorder itself. The evidence of this nexus is
irretrievably lost in the present case under our
finding that the opinion of the psychologist
cannot be relied upon. Even assuming,
therefore, that Jocelyn's account of the
physical beatings she received from Angelito
were true, this evidence does not satisfy the
requirement of Article 36 and its related
jurisprudence, specifically the Santos
requisites. TAHcCI
On the whole, the CA correctly reversed the
RTC judgment, whose factual bases we now
find to be clearly and manifestly erroneous.
Our ruling in Tuason recognizing the finality
of the factual findings of the trial court in
Article 36 cases (which is Jocelyn's main
anchor in her present appeal with us) does not
therefore apply in this case. We find that, on
the contrary, the CA correctly applied Article
36 and its related jurisprudence to the facts
and the evidence of the present case.
WHEREFORE, premises considered, we DENY
the petition for lack of merit. We AFFIRM the
appealed Decision of the Court of Appeals in
CA-G.R. CV No. 62443. Costs against the
petitioner.
SO ORDERED.
Carpio, Del Castillo, Abad and Perez, JJ.,
concur.
SPECIAL FIRST DIVISION
[G.R. No. 165424. June 9, 2009.]
LESTER BENJAMIN S. HALILI, petitioner,
vs. CHONA M. SANTOS-HALILI and THE
REPUBLIC OF THE PHILIPPINES,
respondents.
RESOLUTION
CORONA, J p:
This resolves the motion for reconsideration of
the April 16, 2008 resolution of this Court
denying petitioner's petition for review on
certiorari (under Rule 45 of the Rules of
Court). The petition sought to set aside the
January 26, 2004 decision 1 and September
24, 2004 resolution 2 of the Court of Appeals
(CA) in CA-G.R. CV No. 60010. aTcESI
Petitioner Lester Benjamin S. Halili filed a
petition to declare his marriage to respondent
Chona M. Santos-Halili null and void on the
basis of his psychological incapacity to
perform the essential obligations of marriage
in the Regional Trial Court (RTC), Pasig City,
Branch 158.
He alleged that he wed respondent in civil
rites thinking that it was a "joke". After the
ceremonies, they never lived together as
husband and wife, but maintained the
relationship. However, they started fighting
constantly a year later, at which point
petitioner decided to stop seeing respondent
and started dating other women. Immediately
thereafter, he received prank calls telling him
to stop dating other women as he was already
a married man. It was only upon making an
inquiry that he found out that the marriage
was not "fake".
Eventually, the RTC found petitioner to be
suffering from a mixed personality disorder,
particularly dependent and self-defeating
personality disorder, as diagnosed by his
expert witness, Dr. Natividad Dayan. The
court a quo held that petitioner's personality
disorder was serious and incurable and
directly affected his capacity to comply with
his essential marital obligations to
respondent. It thus declared the marriage null
and void. 3 cDICaS
On appeal, the CA reversed and set aside the
decision of the trial court on the ground that
the totality of the evidence presented failed to
establish petitioner's psychological incapacity.
Petitioner moved for reconsideration. It was
denied.
The case was elevated to this Court via a
petition for review under Rule 45. We affirmed
the CA's decision and resolution upholding
the validity of the marriage.
Petitioner then filed this motion for
reconsideration reiterating his argument that
his marriage to respondent ought to be
declared null and void on the basis of his
psychological incapacity. He stressed that the
evidence he presented, especially the
testimony of his expert witness, was more
than enough to sustain the findings and
conclusions of the trial court that he was and
still is psychologically incapable of complying
with the essential obligations of marriage.
We grant the motion for reconsideration.
In the recent case of Te v. Yu-Te and the
Republic of the Philippines, 4 this Court
reiterated that courts should interpret the
provision on psychological incapacity (as a
ground for the declaration of nullity of a
marriage) on a case-to-case basis guided by
experience, the findings of experts and
researchers in psychological disciplines and
by decisions of church tribunals. aDECHI
Accordingly, we emphasized that, by the very
nature of Article 36, courts, despite having the
primary task and burden of decision-making,
must consider as essential the expert opinion
on the psychological and mental disposition of
the parties. 5
In this case, the testimony 6 of petitioner's
expert witness revealed that petitioner was
suffering from dependent personality disorder.
Thus:
Q. Dr. Dayan, going back to the
examinations and interviews which you
conducted, can you briefly tell this court your
findings [and] conclusions?
A. Well, the petitioner is suffering from a
personality disorder. It is a mixed personality
disorder from self-defeating personality
disorder to [dependent] personality disorder
and this is brought about by [a] dysfunctional
family that petitioner had. He also suffered
from partner relational problem during his
marriage with Chona. There were lots of fights
and it was not truly a marriage, sir.
Q. Now, what made you conclude that
Lester is suffering from psychological
incapacity to handle the essential obligations
of marriage?
A. Sir, for the reason that his motivation
for marriage was very questionable. It was a
very impulsive decision. I don't think he
understood what it meant to really be married
and after the marriage, there was no
consummation, there was no sexual
intercourse, he never lived with the
respondent. And after three months he
refused to see or talk with the respondent and
afterwards, I guess the relationship died a
natural death, and he never thought it was a
really serious matter at all. EHSAaD
xxx xxx xxx
Q. Likewise, you stated here in your
evaluation that Lester Halili and respondent
suffered from a grave lack of discretionary
judgment. Can you expound on this?
A. . . . I don't think they truly appreciate
the civil [rites which] they had undergone. [It
was] just a spur of the moment decision that
they should get married . . . I don't think they
truly considered themselves married.
xxx xxx xxx
Q. Now [from] what particular portion of
their marriage were you able to conclude . . .
that petitioner and respondent are suffering
from psychological incapacity?
A. . . . they never lived together[.] [T]hey
never had a residence, they never
consummated the marriage. During the very
short relationship they had, there were
frequent quarrels and so there might be a
problem also of lack of respect [for] each other
and afterwards there was abandonment.
In Te, this Court defined dependent
personality disorder 7 as
[a] personality disorder characterized by a
pattern of dependent and submissive
behavior. Such individuals usually lack self-
esteem and frequently belittle their
capabilities; they fear criticism and are easily
hurt by others' comments. At times they
actually bring about dominance by others
through a quest for overprotection. CSEHcT
Dependent personality disorder usually begins
in early adulthood. Individuals who have this
disorder may be unable to make everyday
decisions without advice or reassurance from
others, may allow others to make most of their
important decisions (such as where to live),
tend to agree with people even when they
believe they are wrong, have difficulty starting
projects or doing things on their own,
volunteer to do things that are demeaning in
order to get approval from other people, feel
uncomfortable or helpless when alone and are
often preoccupied with fears of being
abandoned.
In her psychological report, 8 Dr. Dayan
stated that petitioner's dependent personality
disorder was evident in the fact that petitioner
was very much attached to his parents and
depended on them for decisions. 9 Petitioner's
mother even had to be the one to tell him to
seek legal help when he felt confused on what
action to take upon learning that his marriage
to respondent was for real. 10
Dr. Dayan further observed that, as expected
of persons suffering from a dependent
personality disorder, petitioner typically acted
in a self-denigrating manner and displayed a
self-defeating attitude. This submissive
attitude encouraged other people to take
advantage of him. 11 This could be seen in the
way petitioner allowed himself to be
dominated, first, by his father who treated his
family like robots 12 and, later, by respondent
who was as domineering as his father. 13
When petitioner could no longer take
respondent's domineering ways, he preferred
to hide from her rather than confront her and
tell her outright that he wanted to end their
marriage. 14 HScCEa
Dr. Dayan traced petitioner's personality
disorder to his dysfunctional family life, to wit:
15
Q. And what might be the root cause of
such psychological incapacity?
A. Sir, I mentioned awhile ago that
Lester's family is dysfunctional. The father
was very abusive, very domineering. The
mother has been very unhappy and the
children never had affirmation. They might
[have been] . . . given financial support
because the father was [a] very affluent person
but it was never an intact family. . . . The wife
and the children were practically robots. And
so, I would say Lester grew up, not having
self-confidence, very immature and somehow
not truly understand[ing] what [it] meant to be
a husband, what [it] meant to have a real
family life.
Ultimately, Dr. Dayan concluded that
petitioner's personality disorder was grave and
incurable and already existent at the time of
the celebration of his marriage to respondent.
16
It has been sufficiently established that
petitioner had a psychological condition that
was grave and incurable and had a deeply
rooted cause. This Court, in the same Te case,
recognized that individuals with diagnosable
personality disorders usually have long-term
concerns, and thus therapy may be long-term.
17 Particularly, personality disorders are
"long-standing, inflexible ways of behaving
that are not so much severe mental disorders
as dysfunctional styles of living. These
disorders affect all areas of functioning and,
beginning in childhood or adolescence, create
problems for those who display them and for
others". 18 ADaEIH
From the foregoing, it has been shown that
petitioner is indeed suffering from
psychological incapacity that effectively
renders him unable to perform the essential
obligations of marriage. Accordingly, the
marriage between petitioner and respondent is
declared null and void.
WHEREFORE, the motion for reconsideration
is hereby GRANTED. The April 16, 2008
resolution of this Court and the January 26,
2004 decision and September 24, 2004
resolution of the Court of Appeals in CA-G.R.
CV No. 60010 are SET ASIDE.
The decision of the Regional Trial Court, Pasig
City, Branch 158 dated April 17, 1998 is
hereby REINSTATED.
SO ORDERED. cHDAIS
Puno, C.J., Velasco, Jr., * Leonardo-de Castro
and Peralta, ** JJ., concur.
SPECIAL FIRST DIVISION
[G.R. No. 166357. January 14, 2015.]
VALERIO E. KALAW, petitioner, vs. MA.
ELENA FERNANDEZ, respondent.
RESOLUTION
BERSAMIN, J p:
In our decision promulgated on September 19,
2011, 1 the Court dismissed the complaint for
declaration of nullity of the marriage of the
parties upon the following ratiocination, to
wit:
The petition has no merit. The CA committed
no reversible error in setting aside the trial
court's Decision for lack of legal and factual
basis.
xxx xxx xxx
In the case at bar, petitioner failed to prove
that his wife (respondent) suffers from
psychological incapacity. He presented the
testimonies of two supposed expert witnesses
who concluded that respondent is
psychologically incapacitated, but the
conclusions of these witnesses were premised
on the alleged acts or behavior of respondent
which had not been sufficiently proven.
Petitioner's experts heavily relied on
petitioner's allegations of respondent's
constant mahjong sessions, visits to the
beauty parlor, going out with friends,
adultery, and neglect of their children.
Petitioner's experts opined that respondent's
alleged habits, when performed constantly to
the detriment of quality and quantity of time
devoted to her duties as mother and wife,
constitute a psychological incapacity in the
form of NPD.
But petitioner's allegations, which served as
the bases or underlying premises of the
conclusions of his experts, were not actually
proven. In fact, respondent presented contrary
evidence refuting these allegations of the
petitioner. TIEHSA
For instance, petitioner alleged that
respondent constantly played mahjong and
neglected their children as a result.
Respondent admittedly played mahjong, but it
was not proven that she engaged in mahjong
so frequently that she neglected her duties as
a mother and a wife. Respondent refuted
petitioner's allegations that she played four to
five times a week. She maintained it was only
two to three times a week and always with the
permission of her husband and without
abandoning her children at home. The
children corroborated this, saying that they
were with their mother when she played
mahjong in their relative's home. Petitioner
did not present any proof, other than his own
testimony, that the mahjong sessions were so
frequent that respondent neglected her family.
While he intimated that two of his sons
repeated the second grade, he was not able to
link this episode to respondent's mahjong-
playing. The least that could have been done
was to prove the frequency of respondent's
mahjong-playing during the years when these
two children were in second grade. This was
not done. Thus, while there is no dispute that
respondent played mahjong, its alleged
debilitating frequency and adverse effect on
the children were not proven.
Also unproven was petitioner's claim about
respondent's alleged constant visits to the
beauty parlor, going out with friends, and
obsessive need for attention from other men.
No proof whatsoever was presented to prove
her visits to beauty salons or her frequent
partying with friends. Petitioner presented
Mario (an alleged companion of respondent
during these nights-out) in order to prove that
respondent had affairs with other men, but
Mario only testified that respondent appeared
to be dating other men. Even assuming
arguendo that petitioner was able to prove
that respondent had an extramarital affair
with another man, that one instance of sexual
infidelity cannot, by itself, be equated with
obsessive need for attention from other men.
Sexual infidelity per se is a ground for legal
separation, but it does not necessarily
constitute psychological incapacity.
Given the insufficiency of evidence that
respondent actually engaged in the behaviors
described as constitutive of NPD, there is no
basis for concluding that she was indeed
psychologically incapacitated. Indeed, the
totality of the evidence points to the opposite
conclusion. A fair assessment of the facts
would show that respondent was not totally
remiss and incapable of appreciating and
performing her marital and parental duties.
Not once did the children state that they were
neglected by their mother. On the contrary,
they narrated that she took care of them, was
around when they were sick, and cooked the
food they like. It appears that respondent
made real efforts to see and take care of her
children despite her estrangement from their
father. There was no testimony whatsoever
that shows abandonment and neglect of
familial duties. While petitioner cites the fact
that his two sons, Rio and Miggy, both failed
the second elementary level despite having
tutors, there is nothing to link their academic
shortcomings to Malyn's actions. ADCSEa
After poring over the records of the case, the
Court finds no factual basis for the conclusion
of psychological incapacity. There is no error
in the CA's reversal of the trial court's ruling
that there was psychological incapacity. The
trial court's Decision merely summarized the
allegations, testimonies, and evidence of the
respective parties, but it did not actually
assess the veracity of these allegations, the
credibility of the witnesses, and the weight of
the evidence. The trial court did not make
factual findings which can serve as bases for
its legal conclusion of psychological
incapacity.
What transpired between the parties is
acrimony and, perhaps, infidelity, which may
have constrained them from dedicating the
best of themselves to each other and to their
children. There may be grounds for legal
separation, but certainly not psychological
incapacity that voids a marriage.
WHEREFORE, premises considered, the
petition is DENIED. The Court of Appeals' May
27, 2004 Decision and its December 15, 2004
Resolution in CA-G.R. CV No. 64240 are
AFFIRMED.
SO ORDERED. 2
In his Motion for Reconsideration, 3 the
petitioner implores the Court to take a
thorough second look into what constitutes
psychological incapacity; to uphold the
findings of the trial court as supported by the
testimonies of three expert witnesses; and
consequently to find that the respondent, if
not both parties, were psychologically
incapacitated to perform their respective
essential marital obligation.
Upon an assiduous review of the records, we
resolve to grant the petitioner's Motion for
Reconsideration.
I
Psychological incapacity as a ground for the
nullity of marriage under Article 36 of the
Family Code refers to a serious psychological
illness afflicting a party even prior to the
celebration of the marriage that is permanent
as to deprive the party of the awareness of the
duties and responsibilities of the matrimonial
bond he or she was about to assume.
Although the Family Code has not defined the
term psychological incapacity, the Court has
usually looked up its meaning by reviewing
the deliberations of the sessions of the Family
Code Revision Committee that had drafted the
Family Code in order to gain an insight on the
provision. It appeared that the members of the
Family Code Revision Committee were not
unanimous on the meaning, and in the end
they decided to adopt the provision "with less
specificity than expected" in order to have the
law "allow some resiliency in its application." 4
Illustrative of the "less specificity than
expected" has been the omission by the Family
Code Revision Committee to give any examples
of psychological incapacity that would have
limited the applicability of the provision
conformably with the principle of ejusdem
generis, because the Committee desired that
the courts should interpret the provision on a
case-to-case basis, guided by experience, the
findings of experts and researchers in
psychological disciplines, and the decisions of
church tribunals that had persuasive effect by
virtue of the provision itself having been taken
from the Canon Law. 5 cDCIHT
On the other hand, as the Court has observed
in Santos v. Court of Appeals, 6 the
deliberations of the Family Code Revision
Committee and the relevant materials on
psychological incapacity as a ground for the
nullity of marriage have rendered it obvious
that the term psychological incapacity as used
in Article 36 of the Family Code "has not been
meant to comprehend all such possible cases
of psychoses as, likewise mentioned by some
ecclesiastical authorities, extremely low
intelligence, immaturity, and like
circumstances," and could not be taken and
construed independently of "but must stand
in conjunction with, existing precepts in our
law on marriage." Thus correlated:
. . . "psychological incapacity" should refer to
no less than a mental (not physical) incapacity
that causes a party to be truly incognitive of
the basic marital covenants that
concomitantly must be assumed and
discharged by the parties to the marriage
which, as so expressed by Article 68 of the
Family Code, include their mutual obligations
to live together, observe love, respect and
fidelity and render help and support. There is
hardly any doubt that the intendment of the
law has been to confine the meaning of
"psychological incapacity" to the most serious
cases of personality disorders clearly
demonstrative of an utter insensitivity or
inability to give meaning and significance to
the marriage. This psychologic condition must
exist at the time the marriage is celebrated.
The law does not evidently envision, upon the
other hand, an inability of the spouse to have
sexual relations with the other. This
conclusion is implicit under Article 54 of the
Family Code which considers children
conceived prior to the judicial declaration of
nullity of the void marriage to be "legitimate."
7
In time, in Republic v. Court of Appeals, 8 the
Court set some guidelines for the
interpretation and application of Article 36 of
the Family Code, as follows:
(1) The burden of proof to show the nullity
of the marriage belongs to the plaintiff. Any
doubt should be resolved in favor of the
existence and continuation of the marriage
and against its dissolution and nullity. This is
rooted in the fact that both our Constitution
and our laws cherish the validity of marriage
and unity of the family. Thus, our
Constitution devotes an entire Article on the
Family, recognizing it "as the foundation of the
nation." It decrees marriage as legally
"inviolable," thereby protecting it from
dissolution at the whim of the parties. Both
the family and marriage are to be "protected"
by the state.
The Family Code echoes this constitutional
edict on marriage and the family and
emphasizes their permanence, inviolability
and solidarity. IaAScD
(2) The root cause of the psychological
incapacity must be (a) medically or clinically
identified, (b) alleged in the complaint, (c)
sufficiently proven by experts and (d) clearly
explained in the decision. Article 36 of the
Family Code requires that the incapacity must
be psychological not physical, although its
manifestations and/or symptoms may be
physical. The evidence must convince the
court that the parties, or one of them, was
mentally or psychically ill to such an extent
that the person could not have known the
obligations he was assuming, or knowing
them, could not have given valid assumption
thereof. Although no example of such
incapacity need be given here so as not to
limit the application of the provision under the
principle of ejusdem generis, nevertheless
such root cause must be identified as a
psychological illness and its incapacitating
nature fully explained. Expert evidence may
be given by qualified psychiatrists and clinical
psychologists.
(3) The incapacity must be proven to be
existing at "the time of the celebration" of the
marriage. The evidence must show that the
illness was existing when the parties
exchanged their "I do's." The manifestation of
the illness need not be perceivable at such
time, but the illness itself must have attached
at such moment, or prior thereto.
(4) Such incapacity must also be shown to
be medically or clinically permanent or
incurable. Such incurability may be absolute
or even relative only in regard to the other
spouse, not necessarily absolutely against
everyone of the same sex. Furthermore, such
incapacity must be relevant to the assumption
of marriage obligations, not necessarily to
those not related to marriage, like the exercise
of a profession or employment in a job. Hence,
a pediatrician may be effective in diagnosing
illnesses of children and prescribing medicine
to cure them but may not be psychologically
capacitated to procreate, bear and raise
his/her own children as an essential
obligation of marriage.
(5) Such illness must be grave enough to
bring about the disability of the party to
assume the essential obligations of marriage.
Thus, "mild characteriological peculiarities,
mood changes, occasional emotional
outbursts" cannot be accepted as root causes.
The illness must be shown as downright
incapacity or inability, not a refusal, neglect or
difficulty, much less ill will. In other words,
there is a natal or supervening disabling factor
in the person, an adverse integral element in
the personality structure that effectively
incapacitates the person from really accepting
and thereby complying with the obligations
essential to marriage.
(6) The essential marital obligations must
be those embraced by Articles 68 up to 71 of
the Family Code as regards the husband and
wife as well as Articles 220, 221 and 225 of
the same Code in regard to parents and their
children. Such non-complied marital
obligation(s) must also be stated in the
petition, proven by evidence and included in
the text of the decision. IAETSC
(7) Interpretations given by the National
Appellate Matrimonial Tribunal of the Catholic
Church in the Philippines, while not
controlling or decisive, should be given great
respect by our courts. It is clear that Article
36 was taken by the Family Code Revision
Committee from Canon 1095 of the New Code
of Canon Law, which became effective in 1983
and which provides:
"The following are incapable of contracting
marriage: Those who are unable to assume
the essential obligations of marriage due to
causes of psychological nature."
Since the purpose of including such provision
in our Family Code is to harmonize our civil
laws with the religious faith of our people, it
stands to reason that to achieve such
harmonization, great persuasive weight should
be given to decisions of such appellate
tribunal. Ideally subject to our law on
evidence what is decreed as canonically
invalid should also be decreed civilly void.
This is one instance where, in view of the
evident source and purpose of the Family
Code provision, contemporaneous religious
interpretation is to be given persuasive effect.
Here, the State and the Church while
remaining independent, separate and apart
from each other shall walk together in
synodal cadence towards the same goal of
protecting and cherishing marriage and the
family as the inviolable base of the nation.
(8) The trial court must order the
prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the state. No
decision shall be handed down unless the
Solicitor General issues a certification, which
will be quoted in the decision, briefly stating
therein his reasons for his agreement or
opposition, as the case may be, to the petition.
The Solicitor General, along with the
prosecuting attorney, shall submit to the
court such certification within fifteen (15) days
from the date the case is deemed submitted
for resolution of the court. The Solicitor
General shall discharge the equivalent
function of the defensor vinculi contemplated
under Canon 1095. 9
The foregoing guidelines have turned out to be
rigid, such that their application to every
instance practically condemned the petitions
for declaration of nullity to the fate of certain
rejection. But Article 36 of the Family Code
must not be so strictly and too literally read
and applied given the clear intendment of the
drafters to adopt its enacted version of "less
specificity" obviously to enable "some
resiliency in its application." Instead, every
court should approach the issue of nullity "not
on the basis of a priori assumptions,
predilections or generalizations, but according
to its own facts" in recognition of the verity
that no case would be on "all fours" with the
next one in the field of psychological
incapacity as a ground for the nullity of
marriage; hence, every "trial judge must take
pains in examining the factual milieu and the
appellate court must, as much as possible,
avoid substituting its own judgment for that of
the trial court." 10 aDSHCc
In the task of ascertaining the presence of
psychological incapacity as a ground for the
nullity of marriage, the courts, which are
concededly not endowed with expertise in the
field of psychology, must of necessity rely on
the opinions of experts in order to inform
themselves on the matter, and thus enable
themselves to arrive at an intelligent and
judicious judgment. Indeed, the conditions for
the malady of being grave, antecedent and
incurable demand the in-depth diagnosis by
experts. 11
II
The findings of the Regional Trial Court (RTC)
on the existence or non-existence of a party's
psychological incapacity should be final and
binding for as long as such findings and
evaluation of the testimonies of witnesses and
other evidence are not shown to be clearly and
manifestly erroneous. 12 In every situation
where the findings of the trial court are
sufficiently supported by the facts and
evidence presented during trial, the appellate
court should restrain itself from substituting
its own judgment. 13 It is not enough reason
to ignore the findings and evaluation by the
trial court and substitute our own as an
appellate tribunal only because the
Constitution and the Family Code regard
marriage as an inviolable social institution.
We have to stress that the fulfilment of the
constitutional mandate for the State to protect
marriage as an inviolable social institution 14
only relates to a valid marriage. No protection
can be accorded to a marriage that is null and
void ab initio, because such a marriage has no
legal existence. 15
In declaring a marriage null and void ab initio,
therefore, the Courts really assiduously
defend and promote the sanctity of marriage
as an inviolable social institution. The
foundation of our society is thereby made all
the more strong and solid.
Here, the findings and evaluation by the RTC
as the trial court deserved credence because it
was in the better position to view and examine
the demeanor of the witnesses while they were
testifying. 16 The position and role of the trial
judge in the appreciation of the evidence
showing the psychological incapacity were not
to be downplayed but should be accorded due
importance and respect.
Yet, in the September 19, 2011 decision, the
Court brushed aside the opinions tendered by
Dr. Cristina Gates, a psychologist, and Fr.
Gerard Healy on the ground that their
conclusions were solely based on the
petitioner's version of the events. AaEDcS
After a long and hard second look, we consider
it improper and unwarranted to give to such
expert opinions a merely generalized
consideration and treatment, least of all to
dismiss their value as inadequate basis for the
declaration of the nullity of the marriage.
Instead, we hold that said experts sufficiently
and competently described the psychological
incapacity of the respondent within the
standards of Article 36 of the Family Code. We
uphold the conclusions reached by the two
expert witnesses because they were largely
drawn from the case records and affidavits,
and should not anymore be disputed after the
RTC itself had accepted the veracity of the
petitioner's factual premises. 17
Admittedly, Dr. Gates based her findings on
the transcript of the petitioner's testimony, as
well as on her interviews of the petitioner, his
sister Trinidad, and his son Miguel. Although
her findings would seem to be unilateral
under such circumstances, it was not right to
disregard the findings on that basis alone.
After all, her expert opinion took into
consideration other factors extant in the
records, including the own opinions of another
expert who had analyzed the issue from the
side of the respondent herself. Moreover, it is
already settled that the courts must accord
weight to expert testimony on the
psychological and mental state of the parties
in cases for the declaration of the nullity of
marriages, for by the very nature of Article 36
of the Family Code the courts, "despite having
the primary task and burden of decision-
making, must not discount but, instead, must
consider as decisive evidence the expert
opinion on the psychological and mental
temperaments of the parties." 18
The expert opinion of Dr. Gates was ultimately
necessary herein to enable the trial court to
properly determine the issue of psychological
incapacity of the respondent (if not also of the
petitioner). Consequently, the lack of personal
examination and interview of the person
diagnosed with personality disorder, like the
respondent, did not per se invalidate the
findings of the experts. The Court has stressed
in Marcos v. Marcos 19 that there is no
requirement for one to be declared
psychologically incapacitated to be personally
examined by a physician, because what is
important is the presence of evidence that
adequately establishes the party's
psychological incapacity. Hence, "if the totality
of evidence presented is enough to sustain a
finding of psychological incapacity, then
actual medical examination of the person
concerned need not be resorted to." 20
Verily, the totality of the evidence must show a
link, medical or the like, between the acts that
manifest psychological incapacity and the
psychological disorder itself. If other evidence
showing that a certain condition could
possibly result from an assumed state of facts
existed in the record, the expert opinion
should be admissible and be weighed as an
aid for the court in interpreting such other
evidence on the causation. 21 Indeed, an
expert opinion on psychological incapacity
should be considered as conjectural or
speculative and without any probative value
only in the absence of other evidence to
establish causation. The expert's findings
under such circumstances would not
constitute hearsay that would justify their
exclusion as evidence. 22 This is so,
considering that any ruling that brands the
scientific and technical procedure adopted by
Dr. Gates as weakened by bias should be
eschewed if it was clear that her psychiatric
evaluation had been based on the parties'
upbringing and psychodynamics. 23 SCaTAc
In that context, Dr. Gates' expert opinion
should be considered not in isolation but
along with the other evidence presented here.
Moreover, in its determination of the issue of
psychological incapacity, the trial court was
expected to compare the expert findings and
opinion of Dr. Natividad Dayan, the
respondent's own witness, and those of Dr.
Gates.
In her Psychological Evaluation Report, 24 Dr.
Dayan impressed that the respondent had
"compulsive and dependent tendencies" to the
extent of being "relationship dependent."
Based from the respondent's psychological
data, Dr. Dayan indicated that:
In her relationship with people, Malyne is
likely to be reserved and seemingly detached
in her ways. Although she likes to be around
people, she may keep her emotional distance.
She, too, values her relationship but she may
not be that demonstrative of her affections.
Intimacy may be quite difficult for her since
she tries to maintain a certain distance to
minimize opportunities for rejection. To
others, Malyne may appear, critical and
demanding in her ways. She can be assertive
when opinions contrary to those of her own
are expressed. And yet, she is apt to be a
dependent person. At a less conscious level,
Malyne fears that others will abandon her.
Malyne, who always felt a bit lonely, placed an
enormous value on having significant others
would depend on most times.
xxx xxx xxx
But the minute she started to care, she
became a different person clingy and
immature, doubting his love, constantly
demanding reassurance that she was the most
important person in his life. She became
relationship-dependent. 25
Dr. Dayan was able to clearly interpret the
results of the Millon Clinical Multiaxial
Inventory test 26 conducted on the
respondent, observing that the respondent
obtained high scores on dependency,
narcissism and compulsiveness, to wit:
Atty. Bretania
Q: How about this Millon Clinical
Multiaxial Inventory?
A: Sir, the cut of the score which is
supposed to be normal is 73 percental round
and there are several scores wherein Mrs.
Kalaw obtained very high score and these are
on the score of dependency, narcissism and
compulsion.
Q: Would you please tell us again, Madam
Witness, what is the acceptable score?
cADSCT
A: When your score is 73 and above, that
means that it is very significant. So, if 72 and
below, it will be considered as acceptable.
Q: In what area did Mrs. Kalaw obtain
high score?
A: Under dependency, her score is 78;
under narcissism, is 79; under
compulsiveness, it is 84. 27
It is notable that Dr. Dayan's findings did not
contradict but corroborated the findings of Dr.
Gates to the effect that the respondent had
been afflicted with Narcissistic Personality
Disorder as well as with Anti-Social Disorder.
Dr. Gates relevantly testified:
ATTY. GONONG
Q: Could you please repeat for clarity. I
myself is [sic] not quite familiar with
psychology terms. So, more or less, could you
please tell me in more layman's terms how
you arrived at your findings that the
respondent is self-centered or narcissistic?
A: I moved into this particular conclusion.
Basically, if you ask about her childhood
background, her father died in a vehicular
accident when she was in her teens and
thereafter she was prompted to look for a job
to partly assume the breadwinner's role in her
family. I gathered that paternal grandmother
partly took care of her and her siblings against
the fact that her own mother was unable to
carry out her respective duties and
responsibilities towards Elena Fernandez and
her siblings considering that the husband died
prematurely. And there was an indication that
Elena Fernandez on several occasions ever
told petitioner that he cannot blame her for
being negligent as a mother because she
herself never experienced the care and
affection of her own mother herself. So, there
is a precedent in her background, in her
childhood, and indeed this seems to indicate a
particular script, we call it in psychology a
script, the tendency to repeat some kind of
experience or the lack of care, let's say some
kind of deprivation, there is a tendency to
sustain it even on to your own life when you
have your own family. I did interview the son
because I was not satisfied with what I
gathered from both Trinidad and Valerio and
even though as a young son at the age of
fourteen already expressed the he could not
see, according to the child, the sincerity of
maternal care on the part of Elena and that he
preferred to live with the father actually.
Q: Taking these all out, you came to the
conclusion that respondent is self-centered
and narcissistic? caTIDE
A: Actually respondent has some needs
which tempts [sic] from a deprived childhood
and she is still in search of this. In her several
boyfriends, it seems that she would jump from
one boyfriend to another. There is this need
for attention, this need for love on other
people.
Q: And that led you to conclude?
A: And therefore I concluded that she is
self-centered to the point of neglecting her
duty as a wife and as a mother. 28
The probative force of the testimony of an
expert does not lie in a mere statement of her
theory or opinion, but rather in the assistance
that she can render to the courts in showing
the facts that serve as a basis for her criterion
and the reasons upon which the logic of her
conclusion is founded. 29 Hence, we should
weigh and consider the probative value of the
findings of the expert witnesses vis--vis the
other evidence available.
The other expert of the petitioner was Fr.
Healy, a canon law expert, an advocate before
the Manila Archdiocese and Matrimonial
Tribunal, and a consultant of the Family Code
Revision Committee. Regarding Father Healy's
expert testimony, we have once declared that
judicial understanding of psychological
incapacity could be informed by evolving
standards, taking into account the particulars
of each case, by current trends in
psychological and even by canonical thought,
and by experience. 30 It is prudent for us to
do so because the concept of psychological
incapacity adopted under Article 36 of the
Family Code was derived from Canon Law.
Father Healy tendered his opinion on whether
or not the respondent's level of immaturity
and irresponsibility with regard to her own
children and to her husband constituted
psychological incapacity, testifying thusly:
ATTY. MADRID
Q: Now, respondent Ma. Elena Fernandez
claims that she is not psychologically
incapacitated. On the facts as you read it
based on the records of this case before this
Honorable Court, what can you say to that
claim of respondent?
A: I would say it is a clear case of
psychological incapacity because of her
immaturity and traumatic irresponsibility with
regards to her own children.
Q: So what you are saying is that, the
claim of respondent that she is not
psychologically incapacitated is not true?
TcSCEa
A: Yes. It should be rejected.
Q: Why do you say so?
A: Because of what she has manifested in
her whole lifestyle, inconsistent pattern has
been manifested running through their life
made a doubt that this is immaturity and
irresponsibility because her family was
dysfunctional and then her being a model in
her early life and being the breadwinner of the
family put her in an unusual position of
prominence and then begun to inflate her own
ego and she begun to concentrate her own
beauty and that became an obsession and
that led to her few responsibility of
subordinating to her children to this lifestyle
that she had embraced.
Q: You only mentioned her relationship
with the children, the impact. How about the
impact on the relationship of the respondent
with her husband?
A: Also the same thing. It just did not fit in
to her lifestyle to fulfill her obligation to her
husband and to her children. She had her
own priorities, her beauty and her going out
and her mahjong and associating with friends.
They were the priorities of her life.
Q: And what you are saying is that, her
family was merely secondary?
A: Secondary.
Q: And how does that relate to
psychological incapacity?
A: That she could not appreciate or absorb
or fulfill the obligations of marriage which
everybody takes for granted. The
concentration on the husband and the
children before everything else would be
subordinated to the marriage with her. It's the
other way around. Her beauty, her going out,
her beauty parlor and her mahjong, they were
their priorities in her life.
Q: And in medical or clinical parlance,
what specifically do you call this?
A: That is narcissism where the person
falls in love with himself is from a myt[h]ical
case in Roman history.
Q: Could you please define to us what
narcissism is? IDEHCa
A: It's a self-love, falling in love with
oneself to make up for the loss of a dear friend
as in the case of Narcissus, the myth, and
then that became known in clinical
terminology as narcissism. When a person is
so concern[ed] with her own beauty and
prolonging and protecting it, then it becomes
the top priority in her life.
xxx xxx xxx
Q: And you stated that circumstances that
prove this narcissism. How do you consider
this narcissism afflicting respondent, it is
grave, slight or . . . .?
A: I would say it's grave from the actual
cases of neglect of her family and that causes
serious obligations which she has ignored and
not properly esteemed because she is so
concern[ed] with herself in her own lifestyle.
Very serious.
Q: And do you have an opinion whether or
not this narcissism afflicting respondent was
already existing at the time or marriage or
even thereafter?
xxx xxx xxx
A: When you get married you don't
develop narcissism or psychological
incapacity. You bring with you into the
marriage and then it becomes manifested
because in marriage you accept these
responsibilities. And now you show that you
don't accept them and you are not capable of
fulfilling them and you don't care about them.
Q: Is this narcissism, Fr. Healy, acquired
by accident or congenital or what?
A: No. The lifestyle generates it. Once you
become a model and still the family was
depended [sic] upon her and she was a model
at Hyatt and then Rustan's, it began to inflate
her ego so much that this became the top
priority in her life. It's her lifestyle.
Q: What you are saying is that, the
narcissism of respondent even expanded after
the marriage?
A: That could have expanded because it
became very obvious after the marriage
because she was neglecting such fundamental
obligations.
Q: And how about the matter of curability,
is this medically or clinically curable, this
narcissism that you mentioned?
A: Let's say, it was manifested for so many
years in her life. It was found in her family
background situation. Say, almost for sure
would be incurable now. DTIcSH
Q: What specific background are you
referring to?
A: Well, the fact when the father died and
she was the breadwinner and her beauty was
so important to give in her job and money and
influence and so on. But this is a very
unusual situation for a young girl and her
position in the family was exalted in a very
very unusual manner and therefore she had
that pressure on her and in her accepting the
pressure, in going along with it and putting it
in top priority. 31
Given his credentials and conceded expertise
in Canon Law, Father Healy's opinions and
findings commanded respect. The contribution
that his opinions and findings could add to
the judicial determination of the parties'
psychological incapacity was substantive and
instructive. He could thereby inform the trial
court on the degrees of the malady that would
warrant the nullity of marriage, and he could
as well thereby provide to the trial court an
analytical insight upon a subject as esoteric to
the courts as psychological incapacity has
been. We could not justly disregard his
opinions and findings. Appreciating them
together with those of Dr. Gates and Dr.
Dayan would advance more the cause of
justice. The Court observed in Ngo Te v. Yu-
Te: 32
By the very nature of Article 36, courts,
despite having the primary task and burden of
decision-making, must not discount but,
instead, must consider as decisive evidence
the expert opinion on the psychological and
mental temperaments of the parties.
Justice Romero explained this in Molina, as
follows:
Furthermore, and equally significant, the
professional opinion of a psychological expert
became increasingly important in such cases.
Data about the person's entire life, both before
and after the ceremony, were presented to
these experts and they were asked to give
professional opinions about a party's mental
capacity at the time of the wedding. These
opinions were rarely challenged and tended to
be accepted as decisive evidence of lack of
valid consent.
The Church took pains to point out that its
new openness in this area did not amount to
the addition of new grounds for annulment,
but rather was an accommodation by the
Church to the advances made in psychology
during the past decades. There was now the
expertise to provide the all-important
connecting link between a marriage
breakdown and premarital causes. HIAEcT
During the 1970s, the Church broadened its
whole idea of marriage from that of a legal
contract to that of a covenant. The result of
this was that it could no longer be assumed in
annulment cases that a person who could
intellectually understand the concept of
marriage could necessarily give valid consent
to marry. The ability to both grasp and
assume the real obligations of a mature,
lifelong commitment are now considered a
necessary prerequisite to valid matrimonial
consent.
Rotal decisions continued applying the
concept of incipient psychological incapacity,
"not only to sexual anomalies but to all kinds
of personality disorders that incapacitate a
spouse or both spouses from assuming or
carrying out the essential obligations of
marriage. For marriage . . . is not merely
cohabitation or the right of the spouses to
each other's body for heterosexual acts, but is,
in its totality the right to the community of the
whole of life; i.e., the right to a developing
lifelong relationship. Rotal decisions since
1973 have refined the meaning of
psychological or psychic capacity for marriage
as presupposing the development of an adult
personality; as meaning the capacity of the
spouses to give themselves to each other and
to accept the other as a distinct person; that
the spouses must be 'other oriented' since the
obligations of marriage are rooted in a self-
giving love; and that the spouses must have
the capacity for interpersonal relationship
because marriage is more than just a physical
reality but involves a true intertwining of
personalities. The fulfillment of the obligations
of marriage depends, according to Church
decisions, on the strength of this interpersonal
relationship. A serious incapacity for
interpersonal sharing and support is held to
impair the relationship and consequently, the
ability to fulfill the essential marital
obligations. The marital capacity of one
spouse is not considered in isolation but in
reference to the fundamental relationship to
the other spouse.
Fr. Green, in an article in Catholic Mind, lists
six elements necessary to the mature marital
relationship:
"The courts consider the following elements
crucial to the marital commitment: (1) a
permanent and faithful commitment to the
marriage partner; (2) openness to children and
partner; (3) stability; (4) emotional maturity;
(5) financial responsibility; (6) an ability to
cope with the ordinary stresses and strains of
marriage, etc."
Fr. Green goes on to speak about some of the
psychological conditions that might lead to the
failure of a marriage: ACcISa
"At stake is a type of constitutional
impairment precluding conjugal communion
even with the best intentions of the parties.
Among the psychic factors possibly giving rise
to his or her inability to fulfill marital
obligations are the following: (1) antisocial
personality with its fundamental lack of
loyalty to persons or sense of moral values; (2)
hyperesthesia, where the individual has no
real freedom of sexual choice; (3) the
inadequate personality where personal
responses consistently fall short of reasonable
expectations.
xxx xxx xxx
The psychological grounds are the best
approach for anyone who doubts whether he
or she has a case for an annulment on any
other terms. A situation that does not fit into
any of the more traditional categories often fits
very easily into the psychological category.
As new as the psychological grounds are,
experts are already detecting a shift in their
use. Whereas originally the emphasis was on
the parties' inability to exercise proper
judgment at the time of the marriage (lack of
due discretion), recent cases seem to be
concentrating on the parties' incapacity to
assume or carry out their responsibilities and
obligations as promised (lack of due
competence). An advantage to using the
ground of lack of due competence is that at
the time the marriage was entered into civil
divorce and breakup of the family almost
always is proof of someone's failure to carry
out marital responsibilities as promised at the
time the marriage was entered into."
Hernandez v. Court of Appeals emphasizes the
importance of presenting expert testimony to
establish the precise cause of a party's
psychological incapacity, and to show that it
existed at the inception of the marriage. And
as Marcos v. Marcos asserts, there is no
requirement that the person to be declared
psychologically incapacitated be personally
examined by a physician, if the totality of
evidence presented is enough to sustain a
finding of psychological incapacity. Verily, the
evidence must show a link, medical or the
like, between the acts that manifest
psychological incapacity and the psychological
disorder itself.
This is not to mention, but we mention
nevertheless for emphasis, that the
presentation of expert proof presupposes a
thorough and in-depth assessment of the
parties by the psychologist or expert, for a
conclusive diagnosis of a grave, severe and
incurable presence of psychological
incapacity. 33 aSTAHD
Ngo Te also emphasized that in light of the
unintended consequences of strictly applying
the standards set in Molina, 34 the courts
should consider the totality of evidence in
adjudicating petitions for declaration of nullity
of marriage under Article 36 of the Family
Code, viz.:
The resiliency with which the concept should
be applied and the case-to-case basis by
which the provision should be interpreted, as
so intended by its framers, had, somehow,
been rendered ineffectual by the imposition of
a set of strict standards in Molina, thus:
xxx xxx xxx
Noteworthy is that in Molina, while the
majority of the Court's membership concurred
in the ponencia of then Associate Justice (later
Chief Justice) Artemio V. Panganiban, three
justices concurred "in the result" and another
three including, as aforesaid, Justice
Romero took pains to compose their
individual separate opinions. Then Justice
Teodoro R. Padilla even emphasized that "each
case must be judged, not on the basis of a
priori assumptions, predilections or
generalizations, but according to its own facts.
In the field of psychological incapacity as a
ground for annulment of marriage, it is trite to
say that no case is on 'all fours' with another
case. The trial judge must take pains in
examining the factual milieu and the appellate
court must, as much as possible, avoid
substituting its own judgment for that of the
trial court."
Predictably, however, in resolving subsequent
cases, the Court has applied the aforesaid
standards, without too much regard for the
law's clear intention that each case is to be
treated differently, as "courts should interpret
the provision on a case-to-case basis; guided
by experience, the findings of experts and
researchers in psychological disciplines, and
by decisions of church tribunals."
In hindsight, it may have been inappropriate
for the Court to impose a rigid set of rules, as
the one in Molina, in resolving all cases of
psychological incapacity. Understandably, the
Court was then alarmed by the deluge of
petitions for the dissolution of marital bonds,
and was sensitive to the OSG's exaggeration of
Article 36 as the "most liberal divorce
procedure in the world." The unintended
consequences of Molina, however, has taken
its toll on people who have to live with deviant
behavior, moral insanity and sociopathic
personality anomaly, which, like termites,
consume little by little the very foundation of
their families, our basic social institutions.
Far from what was intended by the Court,
Molina has become a strait-jacket, forcing all
sizes to fit into and be bound by it. Wittingly
or unwittingly, the Court, in conveniently
applying Molina, has allowed diagnosed
sociopaths, schizophrenics, nymphomaniacs,
narcissists and the like, to continuously
debase and pervert the sanctity of marriage.
Ironically, the Roman Rota has annulled
marriages on account of the personality
disorders of the said individuals. HAEDIS
The Court need not worry about the possible
abuse of the remedy provided by Article 36, for
there are ample safeguards against this
contingency, among which is the intervention
by the State, through the public prosecutor, to
guard against collusion between the parties
and/or fabrication of evidence. The Court
should rather be alarmed by the rising
number of cases involving marital abuse, child
abuse, domestic violence and incestuous rape.
In dissolving marital bonds on account of
either party's psychological incapacity, the
Court is not demolishing the foundation of
families, but it is actually protecting the
sanctity of marriage, because it refuses to
allow a person afflicted with a psychological
disorder, who cannot comply with or assume
the essential marital obligations, from
remaining in that sacred bond. It may be
stressed that the infliction of physical
violence, constitutional indolence or laziness,
drug dependence or addiction, and
psychosexual anomaly are manifestations of a
sociopathic personality anomaly. Let it be
noted that in Article 36, there is no marriage
to speak of in the first place, as the same is
void from the very beginning. To indulge in
imagery, the declaration of nullity under
Article 36 will simply provide a decent burial
to a stillborn marriage.
xxx xxx xxx
Lest it be misunderstood, we are not
suggesting the abandonment of Molina in this
case. We simply declare that, as aptly stated
by Justice Dante O. Tinga in Antonio v. Reyes,
there is need to emphasize other perspectives
as well which should govern the disposition of
petitions for declaration of nullity under
Article 36. At the risk of being redundant, we
reiterate once more the principle that each
case must be judged, not on the basis of a
priori assumptions, predilections or
generalizations but according to its own facts.
And, to repeat for emphasis, courts should
interpret the provision on a case-to-case basis;
guided by experience, the findings of experts
and researchers in psychological disciplines,
and by decisions of church tribunals. 35
III
In the decision of September 19, 2011, the
Court declared as follows:
Respondent admittedly played mahjong, but it
was not proven that she engaged in mahjong
so frequently that she neglected her duties as
a mother and a wife. Respondent refuted
petitioner's allegations that she played four to
five times a week. She maintained it was only
two to three times a week and always with the
permission of her husband and without
abandoning her children at home. The
children corroborated this, saying that they
were with their mother when she played
mahjong in their relatives home. Petitioner did
not present any proof, other than his own
testimony, that the mahjong sessions were so
frequent that respondent neglected her family.
While he intimated that two of his sons
repeated the second grade, he was not able to
link this episode to respondent's mahjong-
playing. The least that could have been done
was to prove the frequency of respondent's
mahjong-playing during the years when these
two children were in second grade. This was
not done. Thus, while there is no dispute that
respondent played mahjong, its alleged
debilitating frequency and adverse effect on
the children were not proven. 36 (Emphasis
supplied) TcEAIH
The frequency of the respondent's mahjong
playing should not have delimited our
determination of the presence or absence of
psychological incapacity. Instead, the
determinant should be her obvious failure to
fully appreciate the duties and responsibilities
of parenthood at the time she made her
marital vows. Had she fully appreciated such
duties and responsibilities, she would have
known that bringing along her children of very
tender ages to her mahjong sessions would
expose them to a culture of gambling and
other vices that would erode their moral fiber.
Nonetheless, the long-term effects of the
respondent's obsessive mahjong playing surely
impacted on her family life, particularly on her
very young children. We do find to be
revealing the disclosures made by Valerio
Teodoro Kalaw 37 the parties' eldest son
in his deposition, whereby the son confirmed
the claim of his father that his mother had
been hooked on playing mahjong, viz.:
ATTY. PISON:
From the time. . . before your parent's
separation, do you remember any habit or
activity or practice which your mother
engaged in, before the separation?
WITNESS:
Yeah, habit? She was a heavy smoker
and she likes to play mahjong a lot, and I
can't remember.
xxx xxx xxx
ATTY. PISON:
You said that your mother played
mahjong frequently. How frequent, do you
remember?
WITNESS:
Not really, but it was a lot. Not actually,
I can't, I can't. . .
ATTY. PISON:
How long would she stay playing
mahjong say one session?
WITNESS:
Really long cuz' we would go to my
aunt's house in White Plains and I think we
would get there by lunch then leave, we fall
asleep. I think it was like one in the morning.
ATTY. PISON: STECAc
You, you went there? She brought you?
WITNESS:
Yeah, to play with my cousins, yeah
and my brothers & sisters.
ATTY. PISON:
Were you brought all the time?
WITNESS:
Yeah, almost all the time but
sometimes, I guess she'd go out by herself. 38
The fact that the respondent brought her
children with her to her mahjong sessions did
not only point to her neglect of parental
duties, but also manifested her tendency to
expose them to a culture of gambling. Her
willfully exposing her children to the culture of
gambling on every occasion of her mahjong
sessions was a very grave and serious act of
subordinating their needs for parenting to the
gratification of her own personal and escapist
desires. This was the observation of Father
Healy himself. In that regard, Dr. Gates and
Dr. Dayan both explained that the current
psychological state of the respondent had
been rooted on her own childhood experience.
The respondent revealed her wanton disregard
for her children's moral and mental
development. This disregard violated her duty
as a parent to safeguard and protect her
children, as expressly defined under Article
209 and Article 220 of the Family Code, to wit:
Article 209. Pursuant to the natural right and
duty of parents over the person and property
of their unemancipated children, parental
authority and responsibility shall include the
caring for and rearing of such children for
civic consciousness and efficiency and the
development of their moral, mental and
physical character and well-being.
Article 220. The parents and those exercising
parental authority shall have with respect to
their unemancipated children or wards the
following rights and duties:
(1) To keep them in their company, to
support, educate and instruct them by right
precept and good example, and to provide for
their upbringing in keeping with their means;
(2) ... CaSHAc
(3) To provide them with moral and
spiritual guidance, inculcate in them honesty,
integrity, self-discipline, self-reliance, industry
and thrift, stimulate their interest in civic
affairs, and inspire in them compliance with
the duties of citizenship;
(4) To enhance, protect, preserve and
maintain their physical and mental health at
all times;
(5) To furnish them with good and
wholesome educational materials, supervise
their activities, recreation and association
with others, protect them from bad company,
and prevent them from acquiring habits
detrimental to their health, studies and
morals;
(6) ...
(7) ...
(8) ...
(9) . . . (emphasis supplied)
The September 19, 2011 decision did not
properly take into consideration the findings
of the RTC to the effect that both the
petitioner and the respondent had been
psychologically incapacitated, and thus could
not assume the essential obligations of
marriage. The RTC would not have found so
without the allegation to that effect by the
respondent in her answer, 39 whereby she
averred that it was not she but the petitioner
who had suffered from psychological
incapacity.
The allegation of the petitioner's psychological
incapacity was substantiated by Dr. Dayan, as
follows:
ATTY. BRETAA:
Q: You stated earlier that both parties
were behaviorally immature?
A: Yes, sir.
Q: And that the marriage was a mistake?
A: Yes, sir.
Q: What is your basis for your statement
that respondent was behaviorally immature?
EaICAD
A: Sir, for the reason that even before the
marriage Malyn had noticed already some of
those short temper of the petitioner but she
was very much in love and so she lived-in with
him and even the time that they were
together, that they were living in, she also had
noticed some of his psychological deficits if we
may say so. But as I said, because she is also
dependent and she was one who determined
to make the relationship work, she was
denying even those kinds of problems that she
had seen.
Q: To make it clear, Madam witness, I'm
talking here of the petitioner, Mr. Kalaw. What
led you to conclude that Mr. Kalaw was
behaviorally immature?
A: I think he also mentioned that his
concept of marriage was not duly stable then.
He was not really thinking of marriage except
that his wife got pregnant and so he thought
that he had to marry her. And even that time
he was not also a monogamous person.
Q: Are you saying, Madam Witness, that
ultimately the decision to marry lied on the
petitioner?
A: I think so, Sir.
Q: Now, in your report, Madam Witness,
you mentioned here that the petitioner
admitted to you that in his younger years he
was often out seeking other women. I'm
referring specifically to page 18. He also
admitted to you that the thought of
commitment scared him, the petitioner. Now,
given these admissions by petitioner to you,
my questions is, is it possible for such a
person to enter into marriage despite this fear
of commitment and given his admission that
he was a womanizer? Is it possible for this
person to stop his womanizing ways during
the marriage?
A: Sir, it's difficult.
Q: It would be difficult for that person?
A: Yes, Sir.
Q: What is the probability of this person
giving up his womanizing after marriage?
A: Sir, I would say the probability of his
giving up is almost only 20%.
Q: So, it is entirely possible that the
respondent womanized during his marriage
with the respondent?
A: Yes, Sir. aSCHcA
Q: What is the bearing of this fear of
commitment on the part of the petitioner
insofar as his psychological capacity to
perform his duties as a husband is
concerned?
A: Sir, it would impair his ability to have
sexual integrity and also to be fully committed
to the role of husband to Malyn.
Q: Madam Witness, you never directly
answered my question on whether the
petitioner was psychologically incapacitated to
perform his duty as a husband. You only said
that the petitioner was behaviorally immature
and that the marriage was a mistake. Now,
may I asked [sic] you that question again and
request you to answer that directly?
A: Sir, he is psychologically incapacitated.
40
Although the petitioner, as the plaintiff,
carried the burden to prove the nullity of the
marriage, the respondent, as the defendant
spouse, could establish the psychological
incapacity of her husband because she raised
the matter in her answer. The courts are
justified in declaring a marriage null and void
under Article 36 of the Family Code regardless
of whether it is the petitioner or the
respondent who imputes the psychological
incapacity to the other as long as the
imputation is fully substantiated with proof.
Indeed, psychological incapacity may exist in
one party alone or in both of them, and if
psychological incapacity of either or both is
established, the marriage has to be deemed
null and void.
More than twenty (20) years had passed since
the parties parted ways. By now, they must
have already accepted and come to terms with
the awful truth that their marriage, assuming
it existed in the eyes of the law, was already
beyond repair. Both parties had inflicted so
much damage not only to themselves, but also
to the lives and psyche of their own children.
It would be a greater injustice should we insist
on still recognizing their void marriage, and
then force them and their children to endure
some more damage. This was the very same
injustice that Justice Romero decried in her
erudite dissenting opinion in Santos v. Court
of Appeals: 41
It would be great injustice, I believe, to
petitioner for this Court to give a much too
restrictive interpretation of the law and
compel the petitioner to continue to be
married to a wife who for purposes of fulfilling
her marital duties has, for all practical
purposes, ceased to exist. AcISTE
Besides, there are public policy considerations
involved in the ruling the Court makes today.
It is not, in effect, directly or indirectly,
facilitating the transformation of petitioner
into a "habitual tryster" or one forced to
maintain illicit relations with another woman
or women with emerging problems of
illegitimate children, simply because he is
denied by private respondent, his wife, the
companionship and conjugal love which he
has sought from her and to which he is legally
entitled?
I do not go as far as to suggest that Art. 36 of
the Family Code is a sanction for absolute
divorce but I submit that we should not
constrict it to non-recognition of its evident
purpose and thus deny to one like petitioner,
an opportunity to turn a new leaf in his life by
declaring his marriage a nullity by reason of
his wife's psychological incapacity to perform
an essential marital obligation.
In this case, the marriage never existed from
the beginning because the respondent was
afflicted with psychological incapacity at and
prior to the time of the marriage. Hence, the
Court should not hesitate to declare the
nullity of the marriage between the parties.
To stress, our mandate to protect the
inviolability of marriage as the basic
foundation of our society does not preclude
striking down a marital union that is "ill-
equipped to promote family life," thus:
Now is also the opportune time to comment on
another common legal guide utilized in the
adjudication of petitions for declaration of
nullity in the adjudication of petitions for
declaration of nullity under Article 36. All too
frequently, this Court and lower courts, in
denying petitions of the kind, have favorably
cited Sections 1 and 2, Article XV of the
Constitution, which respectively state that
"[t]he State recognizes the Filipino family as
the foundation of the nation. Accordingly, it
shall strengthen its solidarity and actively
promote its total developmen[t]," and that
[m]arriage, as an inviolable social institution,
is the foundation of the family and shall be
protected by the State." These provisions
highlight the importance of the family and the
constitutional protection accorded to the
institution of marriage.
But the Constitution itself does not establish
the parameters of state protection to marriage
as a social institution and the foundation of
the family. It remains the province of the
legislature to define all legal aspects of
marriage and prescribe the strategy and the
modalities to protect it, based on whatever
socio-political influences it deems proper, and
subject of course to the qualification that such
legislative enactment itself adheres to the
Constitution and the Bill of Rights. This being
the case, it also falls on the legislature to put
into operation the constitutional provisions
that protect marriage and the family. This has
been accomplished at present through the
enactment of the Family Code, which defines
marriage and the family, spells out the
corresponding legal effects, imposes the
limitations that affect married and family life,
as well as prescribes the grounds for
declaration of nullity and those for legal
separation. While it may appear that the
judicial denial of a petition for declaration of
nullity is reflective of the constitutional
mandate to protect marriage, such action in
fact merely enforces a statutory definition of
marriage, not a constitutionally ordained
decree of what marriage is. Indeed, if
circumstances warrant, Sections 1 and 2 of
Article XV need not be the only constitutional
considerations to be taken into account in
resolving a petition for declaration of nullity.
CSTDIE
Indeed, Article 36 of the Family Code, in
classifying marriages contracted by a respondent engaged in the alleged acts, that
psychologically incapacitated person as a
nullity, should be deemed as an implement of
this constitutional protection of marriage.
Given the avowed State interest in promoting
marriage as the foundation of the family,
which in turn serves as the foundation of the
nation, there is a corresponding interest for
the State to defend against marriages ill-
equipped to promote family life. Void ab initio
marriages under Article 36 do not further the
initiatives of the State concerning marriage
and family, as they promote wedlock among
persons who, for reasons independent of their
will, are not capacitated to understand or
comply with the essential obligations of
marriage. 42 (Emphasis supplied)
WHEREFORE, the Court GRANTS the Motion
for Reconsideration; REVERSES and SETS
ASIDE the decision promulgated on
September 19, 2011; and REINSTATES the
decision rendered by the Regional Trial Court
declaring the marriage between the petitioner
and the respondent on November 4, 1976 as
NULL AND VOID AB INITIO due to the
psychological incapacity of the parties
pursuant to Article 36 of the Family Code.
No pronouncement on costs of suit.
SO ORDERED.
Leonardo-de Castro, Perez * and Leonen, **
JJ., concur.
Del Castillo, J., see dissenting opinion.
Separate Opinions
DEL CASTILLO, J., dissenting:
On September 19, 2011, this Court issued its
Decision 1 denying petitioner Valerio E.
Kalaw's petition and affirming the appellate
court's determination that there is insufficient
evidence of psychological incapacity that
would render the parties' marriage null and
void. The Court, in making its Decision, relied
on the experts' own proffered guideline for
making their conclusions. They said that
actions, such as those allegedly performed by
respondent, "when performed constantly to
the detriment of quality and quantity of time
devoted to her duties as mother and wife,
constitute a psychological incapacity in the
form of [Narcissistic Personality Disorder]." 2
The Court, using the experts' own guideline,
reviewed the evidence to determine if there is
indeed proof, before the Court, that
she performed them constantly, and to the
detriment of the quality and quantity of time
devoted to her duties as mother and wife.
Considering the opposing views of the trial
and appellate courts on the matter, the Court
thoroughly reviewed the records of the case,
including the psychiatrists' reports. Despite
the Court's considerable effort to respect and
accept the psychologists' findings, we simply
found no adequate evidence of the factual
premises of their diagnosis of Narcissistic
Personality Disorder. Thus, we agreed with the
Court of Appeals (CA) that the evidence is
insufficient for a declaration of nullity of
marriage on the ground of psychological
incapacity. SaIACT
The petitioner filed a Motion for
Reconsideration (MR), 3 arguing that the
Court erred in finding the psychological
experts' conclusions (that respondent is
psychologically incapacitated to understand
the demands of a marriage) unsupported by
the available evidence.
The respondent, in lieu of a Comment, 4
reiterated her earlier Manifestation that she is
now conceding that petitioner, not herself,
may actually be psychologically incapacitated
to perform his essential marital obligations. 5
The Majority Opinion opines that the Court
would be unjust to keep the parties in a
marriage despite their shared opinion that
their marriage is beyond repair.
However, under the law, the parties' own
desire to dissolve their marriage is not a
determining factor in assessing the existence
of a ground for annulment or declaration of
nullity. Indeed, Article 48 of the Family Code
mandates the court to guard against the
possibility of collusion between the parties:
ARTICLE 48. In all cases of annulment or
declaration of absolute nullity of marriage, the
Court shall order the prosecuting attorney or
fiscal assigned to it to appear on behalf of the
State to take steps to prevent collusion
between the parties and to take care that
evidence is not fabricated or suppressed.
xxx xxx xxx
The Court's Decision should rely solely on the
available evidence and the law.
The Majority Opinion claims that our Decision
failed to appreciate the evidence, as found by
the trial court and by the expect psychologists
and that the trial court's ruling on the
psychological incapacity of the parties should
be final and binding on the appellate courts
when such ruling is based on the facts and on
opinion of the qualified experts.
I agree that the ruling of a lower court should
be given due respect and finality when it is
adequately explained, rests on established
facts, and considers the opinion of qualified
experts. Unfortunately, such kind of trial
court ruling is not before us; hence, our
September 19, 2011 Decision did not see fit to
adopt the findings of the trial court.
The trial court summarized the parties'
respective evidence, including the testimonies
of their psychologists, in the first six pages of
its decision. 6 It then proceeded to quote
Article 36 of the Family Code and the
definitions of psychological incapacity in
Santos v. Court of Appeals 7 and in the
Republic v. Court of Appeals. 8 Without any
indication of which pieces of evidence it found
convincing, reliable, and overwhelming, much
less a discussion of how these evidence tend
to prove the existence or non-existence of
psychological incapacity ergo, without
factual findings whatsoever the trial court
ruled in a terse and unsatisfying paragraph
that: CTacSE
From the evidence, it appears that parties are
both suffering from psychological incapacity to
perform their essential marital obligations
under Article 36 of the Family Code. The
parties entered into a marriage without as
much as understanding what it entails. They
failed to commit themselves to its essential
obligations: the conjugal act, the community
of life and love, the rendering of mutual help,
the procreation and education of their
children to become responsible individuals.
Parties' psychological incapacity is grave, and
serious such that both are incapable of
carrying out the ordinary duties required in
marriage. The incapacity has been clinically
established and was found to be pervasive,
grave and incurable. 9 (Emphases supplied)
The inadequacy of the trial court's ruling and
its understanding of the concept of
psychological incapacity is apparent.
Psychological incapacity, as a ground for the
declaration of nullity, is not a lack of
understanding of what marriage entails, nor is
it a "failure to commit" one's self to the
essential marital and familial obligations. 10 It
is a downright inability to understand,
perform, or comply with, the said duties and
obligations. 11 How can any appellate court
rely on the trial court's assessment of whether
the evidence constituted psychological
incapacity when there is none and its
understanding of the concept of psychological
incapacity is doctrinally flawed?
The trial court then characterized the parties'
psychological incapacity as grave and serious,
without even going over the evidence upon
which it relied in making such conclusion. It
appears to the Court that the last sentence of
the trial court's decision that "the
incapacity has been clinically established"
encapsulates the process by which the trial
court arrived at its judgment. It relied merely
and solely on the conclusions of the
psychological experts, without doing its duty
to make an independent assessment of the
evidence.
To reiterate, while I agree that the trial court's
ruling on the psychological incapacity of the
parties should be final and binding on the
appellate courts when such ruling is based on
the facts and on the opinion of the experts, I
believe that the trial court's decision in this
case was not based on facts, but solely on the
opinion of the experts. Such blind reliance by
the trial court was an abdication of its duty to
go over the evidence for itself.
While the courts may consider the assistance
of the experts, the courts are duty-bound to
assess not only the correctness of the experts'
conclusions, but also the factual premises
upon which such conclusions are based. The
expert's conclusions, like any other opinion,
are based on certain assumptions or
premises. It is the court's job to assess
whether those assumptions or premises are in
fact true or correct, and supported by
evidence on record. The soundness of experts'
conclusions lie in the quantity and quality of
the input they received in making their
conclusions. This is precisely where the courts
take the reins from these experts. The root
cause of psychological incapacity must not
only be clinically identified by experts, it must
also be sufficiently proven and clearly
explained in the decision. 12 CSDcTH
The expertise of courts lies in determining
which facts are admissible, which are
relevant, which carry weight, which have been
proven, which have been debunked. In
resolving legal disputes, the courts have the
expertise in evaluating the quantity, quality,
and relevance of the facts to the legal issue
involved. Courts have to conduct its
independent assessment of the quality of the
facts that the psychologists relied upon in
support of their conclusion. It is only if, and
when, the court is convinced that the
psychologists' conclusions are strongly
anchored on verifiable, admissible, and
relevant evidence that it can adopt the
psychologists' findings. Even petitioner's
expert witness, Fr. Healy, acknowledged in his
testimony that it is the court's job, not that of
the expert, to verify the truthfulness of the
factual allegations regarding respondent's
alleged habits. Fr. Healy cautioned that his
opinion rests only on his assumption that the
factual allegations are true. 13
It remains my opinion that the factual
premises for the experts' conclusions in this
case were not established in court. While the
experts testified that the alleged dysfunction
in respondent's family and her subsequent
actions within her marriage are indicative of a
Narcissistic Personality Disorder, the court
records themselves reveal no credible and
preponderant evidence of the supposed family
dysfunction in respondent's childhood and of
her supposed narcissistic habits later in life.
There was no independent witness presented,
who is knowledgeable of respondent's
upbringing and of her actions before and after
the celebration of marriage. This is
detrimental in proving that the cause of her
psychological incapacity occurred before, or at
the time of the celebration of the marriage, 14
and renders the experts' opinion on the root
cause of her psychological incapacity
conjectural or speculative. Also there was no
evidence of respondent's supposed obsessive
desire for attention and selfishness, which
obsession, according to the experts, indicates
a narcissistic personality. The most that was
proven was a single incident wherein she was
found in a hotel room with another man (after
they have separated in fact), a penchant for
visiting salons and for meeting friends over a
mahjong game. This can hardly be considered
as a pattern, defined as "a reliable sample of
traits, acts or other observable features
characterizing an individual," 15 much less an
obsession.
Much is said about respondent's
undesirability as a mother for supposedly
exposing her children to the "culture of
gambling;" 16 this, from the evidence that she
brought her children with her to their "aunt's
house" where she frequently played mahjong. I
find this judgment unsupported by the
evidence and irrelevant. While it has been
proven that respondent played mahjong, there
is no evidence whatsoever that it involved
gambling, which is "the act of playing a game
and consciously risking money or other stakes
on its outcome." 17 Without the element of
gambling, a mother's act of bringing her kids
with her when she meets with friends (which
is the most that can be said of this matter)
can hardly be described as undesirable. Even
Fr. Healy acknowledged that playing mahjong
and spending time with friends are not
disorders by themselves. They would only
constitute psychological incapacity if 12, Art. XV, Secs. 1-2) The existence of any
inordinate amounts of time are spent on these doubt should still be resolved in favor of the
activities to the detriment of one's familial validity of the marriage.
duties. 18 The Court, in our Decision, applied
Fr. Healy's standards. We concluded that I, therefore, submit that petitioner's Motion for
respondent was not psychologically Reconsideration be denied with finality.
incapacitated because there was no proof that
she spent inordinate amounts of time in these
alleged activities or that her kids were
adversely affected. 19 On the contrary, the
records revealed her efforts to maintain
supervision of her kids, even when she was
among her friends. Further, the kids recalled
that, after respondent left the conjugal home,
she would surreptitiously visit them in their
schools; and, once granted visitation rights,
spent weekends with them and took care of
them at any time they got sick. 20 These are
hardly the actions of a woman with an
inability to understand her filial duties and
obligations. aEIcHA

It must be emphasized that the Court does not

disrespect the experts' findings when it
disagrees with them; nor does it assert that it
is wiser in analyzing human behavior. It is
simply performing its duty to go over the
evidence independently, consider the experts'
opinions, and apply the law and jurisprudence
to the facts of the case. The Court cannot
simply adhere to the experts' opinion when
there is an obvious dearth of factual evidence.
The Court is not a passive receptacle of expert
opinions; otherwise, there would be no need
for psychological incapacity cases to be tried
before the courts. Courts would be reduced to
a mere rubber stamp for the expert's
conclusions. That is not what the framers of
Article 36 envisioned.

In the end, this is simply the sad story of two

people who married and started a family, but
realized early on that they have made a
mistake. They both contributed to the demise
of their marriage, as hurt people often do.
Despite their brokenness, they tried to make
the most of the situation, caring for their
children while they try to move on with their
now separate lives. Now, in their advanced
years, they want a magical solution that would
erase any trace of their follies of youth;
unfortunately, the provision for psychological
incapacity is not such a miraculous fix for
dissolving the marriage bond. The policy of
our 1987 Constitution continues to be to
protect and strengthen the family as the basic
autonomous social institution and marriage
as the foundation of the family. (Art. 11, Sec.
SECOND DIVISION
[G.R. No. 171557. February 12, 2014.]
REPUBLIC OF THE PHILIPPINES,
petitioner, vs. RODOLFO O. DE GRACIA,
respondent.
DECISION
PERLAS-BERNABE, J p:
Assailed in this petition for review on
certiorari 1 are the Decision 2 dated June 2,
2005 and Resolution 3 dated February 3,
2006 of the Court of Appeals (CA) in CA-G.R.
CV No. 69103 which affirmed the Decision 4
dated October 17, 2000 of the Regional Trial
Court of Zamboanga del Norte, Branch 11
(RTC) in Civil Case No. S-665 declaring the
marriage of respondent Rodolfo O. de Gracia
(Rodolfo) and Natividad N. Rosalem (Natividad)
void on the ground of psychological incapacity
pursuant to Article 36 of the Family Code of
the Philippines 5 (Family Code). SHCaEA
The Facts
Rodolfo and Natividad were married on
February 15, 1969 at the Parish of St. Vincent
Ferrer in Salug, Zamboanga del Norte. 6 They
lived in Dapaon, Sindangan, Zamboanga del
Norte and have two (2) children, namely, Ma.
Reynilda R. de Gracia (Ma. Reynilda) and Ma.
Rizza R. de Gracia (Ma. Rizza), who were born
on August 20, 1969 and January 15, 1972,
respectively. 7 SECHIA
On December 28, 1998, Rodolfo filed a verified
complaint for declaration of nullity of marriage
(complaint) before the RTC, docketed as Civil
Case No. S-665, alleging that Natividad was
psychologically incapacitated to comply with
her essential marital obligations. In
compliance with the Order 8 dated January 5,
1999 of the RTC, the public prosecutor
conducted an investigation to determine if
collusion exists between Rodolfo and
Natividad and found that there was none. 9
Trial on the merits then ensued.
In support of his complaint, Rodolfo testified,
among others, that he first met Natividad
when they were students at the Barangay
High School of Sindangan, 10 and he was
forced to marry her barely three (3) months
into their courtship in light of her accidental
pregnancy. 11 At the time of their marriage,
he was 21 years old, while Natividad was 18
years of age. He had no stable job and merely
worked in the gambling cockpits as "kristo"
and "bangkero sa hantak." When he decided
to join and train with the army, 12 Natividad
left their conjugal home and sold their house
without his consent. 13 Thereafter, Natividad
moved to Dipolog City where she lived with a
certain Engineer Terez (Terez), and bore him a
child named Julie Ann Terez. 14 After
cohabiting with Terez, Natividad contracted a
second marriage on January 11, 1991 with
another man named Antonio Mondarez and
has lived since then with the latter in Cagayan
de Oro City. 15 From the time Natividad
abandoned them in 1972, Rodolfo was left to
take care of Ma. Reynilda and Ma. Rizza 16
and he exerted earnest efforts to save their
marriage which, however, proved futile
because of Natividad's psychological
incapacity that appeared to be incurable. 17
For her part, Natividad failed to file her
answer, as well as appear during trial, despite
service of summons. 18 Nonetheless, she
informed the court that she submitted herself
for psychiatric examination to Dr. Cheryl T.
Zalsos (Dr. Zalsos) in response to Rodolfo's
claims. 19 Rodolfo also underwent the same
examination. 20 LLpr
In her two-page psychiatric evaluation report,
21 Dr. Zalsos stated that both Rodolfo and
Natividad were psychologically incapacitated
to comply with the essential marital
obligations, finding that both parties suffered
from "utter emotional immaturity [which] is
unusual and unacceptable behavior
considered [as] deviant from persons who
abide by established norms of conduct." 22 As
for Natividad, Dr. Zalsos also observed that
she lacked the willful cooperation of being a
wife and a mother to her two daughters.
Similarly, Rodolfo failed to perform his
obligations as a husband, adding too that he
sired a son with another woman. Further, Dr.
Zalsos noted that the mental condition of both
parties already existed at the time of the
celebration of marriage, although it only
manifested after. Based on the foregoing, Dr.
Zalsos concluded that the "couple's union was
bereft of the mind, will and heart for the
obligations of marriage." 23 IADCES
On February 10, 1999, the Office of the
Solicitor General (OSG), representing
petitioner Republic of the Philippines
(Republic), filed an opposition 24 to the
complaint, contending that the acts
committed by Natividad did not demonstrate
psychological incapacity as contemplated by
law, but are mere grounds for legal separation
under the Family Code. 25
The RTC Ruling
In a Decision 26 dated October 17, 2000, the
RTC declared the marriage between Rodolfo
and Natividad void on the ground of
psychological incapacity. It relied on the
findings and testimony of Dr. Zalsos, holding
that Natividad's emotional immaturity
exhibited a behavioral pattern which in
psychiatry constitutes a form of personality
disorder that existed at the time of the parties'
marriage but manifested only thereafter. It
likewise concurred with Dr. Zalsos's
observation that Natividad's condition is
incurable since it is deeply rooted within the
make-up of her personality. Accordingly, it
concluded that Natividad could not have
known, much more comprehend the marital
obligations she was assuming, or, knowing
them, could not have given a valid assumption
thereof. 27 cdrep
The Republic appealed to the CA, averring
that there was no showing that Natividad's
personality traits constituted psychological
incapacity as envisaged under Article 36 of the
Family Code, and that the testimony of the
expert witness was not conclusive upon the
court. 28
The CA Ruling
In a Decision 29 dated June 2, 2005, the CA
affirmed the ruling of the RTC, finding that
while Natividad's emotional immaturity,
irresponsibility and promiscuity by themselves
do not necessarily equate to psychological
incapacity, "their degree or severity, as duly
testified to by Dr. Zalsos, has sufficiently
established a case of psychological disorder so
profound as to render [Natividad]
incapacitated to perform her essential marital
obligations." 30 aIETCA
The Republic moved for reconsideration which
was, however, denied in a Resolution 31 dated
February 3, 2006, hence, the instant petition.
The Issue Before the Court
The primordial issue in this case is whether or
not the CA erred in sustaining the RTC's
finding of psychological incapacity.
The Ruling of the Court
The petition is meritorious. DTIaCS
"Psychological incapacity," as a ground to
nullify a marriage under Article 36 32 of the
Family Code, should refer to no less than a
mental not merely physical incapacity
that causes a party to be truly incognitive of
the basic marital covenants that
concomitantly must be assumed and
discharged by the parties to the marriage
which, as so expressed in Article 68 33 of the
Family Code, among others, 34 include their
mutual obligations to live together, observe
love, respect and fidelity and render help and
support. There is hardly any doubt that the
intendment of the law has been to confine the
meaning of "psychological incapacity" to the
most serious cases of personality disorders
clearly demonstrative of an utter insensitivity
or inability to give meaning and significance to
the marriage. 35 In Santos v. CA 36 (Santos),
the Court first declared that psychological
incapacity must be characterized by: (a)
gravity (i.e., it must be grave and serious such
that the party would be incapable of carrying
out the ordinary duties required in a
marriage); (b) juridical antecedence (i.e., it
must be rooted in the history of the party
antedating the marriage, although the overt
manifestations may emerge only after the
marriage); and (c) incurability (i.e., it must be
incurable, or even if it were otherwise, the
cure would be beyond the means of the party
involved). 37 The Court laid down more
definitive guidelines in the interpretation and
application of Article 36 of the Family Code in
Republic of the Phils. v. CA, 38 whose salient
points are footnoted hereunder. 39 These
guidelines incorporate the basic requirements
that the Court established in Santos. 40
cIETHa
Keeping with these principles, the Court, in
Dedel v. CA, 41 held that therein respondent's
emotional immaturity and irresponsibility
could not be equated with psychological
incapacity as it was not shown that these acts
are manifestations of a disordered personality
which make her completely unable to
discharge the essential marital obligations of
the marital state, not merely due to her youth,
immaturity or sexual promiscuity. 42 In the
same light, the Court, in the case of Pesca v.
Pesca 43 (Pesca), ruled against a declaration
of nullity, as petitioner therein "utterly failed,
both in her allegations in the complaint and in
her evidence, to make out a case of
psychological incapacity on the part of
respondent, let alone at the time of
solemnization of the contract, so as to warrant
a declaration of nullity of the marriage,"
significantly noting that the "[e]motional
immaturity and irresponsibility, invoked by
her, cannot be equated with psychological
incapacity." In Pesca, the Court upheld the
appellate court's finding that the petitioner
therein had not established that her husband
"showed signs of mental incapacity as would
cause him to be truly incognitive of the basic
marital covenant, as so provided for in Article
68 of the Family Code; that the incapacity is
grave, has preceded the marriage and is
incurable; that his incapacity to meet his
marital responsibility is because of a
psychological, not physical illness; that the
root cause of the incapacity has been
identified medically or clinically, and has been
proven by an expert; and that the incapacity is
permanent and incurable in nature." 44
DISTcH
The Court maintains a similar view in this
case. Based on the evidence presented, there
exists insufficient factual or legal basis to
conclude that Natividad's emotional
immaturity, irresponsibility, or even sexual
promiscuity, can be equated with
psychological incapacity. TacESD
The RTC, as affirmed by the CA, heavily relied
on the psychiatric evaluation report of Dr.
Zalsos which does not, however, explain in
reasonable detail how Natividad's condition
could be characterized as grave, deeply-
rooted, and incurable within the parameters of
psychological incapacity jurisprudence. Aside
from failing to disclose the types of
psychological tests which she administered on
Natividad, Dr. Zalsos failed to identify in her
report the root cause of Natividad's condition
and to show that it existed at the time of the
parties' marriage. Neither was the gravity or
seriousness of Natividad's behavior in relation
to her failure to perform the essential marital
obligations sufficiently described in Dr.
Zalsos's report. Further, the finding contained
therein on the incurability of Natividad's
condition remains unsupported by any factual
or scientific basis and, hence, appears to be
drawn out as a bare conclusion and even self-
serving. In the same vein, Dr. Zalsos's
testimony during trial, which is essentially a
reiteration of her report, also fails to convince
the Court of her conclusion that Natividad was
psychologically incapacitated. Verily, although
expert opinions furnished by psychologists
regarding the psychological temperament of
parties are usually given considerable weight
by the courts, the existence of psychological
incapacity must still be proven by
independent evidence. 45 After poring over the
records, the Court, however, does not find any
such evidence sufficient enough to uphold the
court a quo's nullity declaration. To the
Court's mind, Natividad's refusal to live with
Rodolfo and to assume her duties as wife and
mother as well as her emotional immaturity,
irresponsibility and infidelity do not rise to the
level of psychological incapacity that would
justify the nullification of the parties'
marriage. Indeed, to be declared clinically or
medically incurable is one thing; to refuse or
be reluctant to perform one's duties is
another. To hark back to what has been
earlier discussed, psychological incapacity
refers only to the most serious cases of
personality disorders clearly demonstrative of
an utter insensitivity or inability to give
meaning and significance to the marriage. 46
In the final analysis, the Court does not
perceive a disorder of this nature to exist in
the present case. Thus, for these reasons,
coupled too with the recognition that marriage
is an inviolable social institution and the
foundation of the family, 47 the instant
petition is hereby granted. cCTaSH
WHEREFORE, the petition is GRANTED. The
Decision dated June 2, 2005 and Resolution
dated February 3, 2006 of the Court of
Appeals in CA-G.R. CV No. 69103 are
REVERSED and SET ASIDE. Accordingly, the
complaint for declaration of nullity of marriage
filed under Article 36 of the Family Code is
DISMISSED.
SO ORDERED. EICScD
Carpio, Brion, Del Castillo and Perez, JJ.,
concur.
SECOND DIVISION
[G.R. No. 192718. February 18, 2015.]
ROBERT F. MALLILIN, * petitioner, vs. LUZ
G. JAMESOLAMIN and the REPUBLIC OF
THE PHILIPPINES, respondents.
DECISION
MENDOZA, J p:
This is a petition for review on certiorari under
Rule 45 of the Revised Rules of Court assailing
the November 20, 2009 Decision 1 of the
Court of Appeals (CA) and its June 1, 2010
Resolution, 2 in CA-G.R. CV No. 78303-MIN,
which reversed and set aside the September
20, 2002 Decision of the Regional Trial Court,
Branch 37, Cagayan de Oro City (RTC-Br. 37),
declaring the marriage between petitioner
Robert F. Mallilin (Robert) and private
respondent Luz G. Jamesolamin (Luz) null
and void. cIACaT
The Facts:
Robert and Luz were married on September 6,
1972. They begot three (3) children.
On March 16, 1994, Robert filed a complaint
for declaration of nullity of marriage before the
RTC, Branch 23, Cagayan de Oro City (RTC-
Br. 23). On March 7, 1996, RTC-Br. 23 denied
the petition. Robert appealed this judgment
before the CA where it was docketed as CA-
G.R. CV No. 54261. On January 29, 1999, the
CA reversed the RTC-Br. 23 decision "due to
lack of participation of the State as required
under Article 48 of the Family Code." 3 The
case was remanded to the RTC for further
proceedings and its records were thereafter
transferred from RTC-Br. 23 to RTC-Br. 37, as
the latter was designated as Family Court
pursuant to the Family Code Act of 1997.
In the complaint, Robert alleged that at the
time of the celebration of their marriage, Luz
was suffering from psychological and mental
incapacity and unpreparedness to enter into
such marital life and to comply with its
essential obligations and responsibilities.
Such incapacity became even more apparent
during their marriage when Luz exhibited
clear manifestation of immaturity,
irresponsibility, deficiency of independent
rational judgment, and inability to cope with
the heavy and oftentimes demanding
obligation of a parent.
Luz filed her Answer with Counterclaim
contesting the complaint. She averred that it
was Robert who manifested psychological
incapacity in their marriage. Despite due
notice, however, she did not appear during the
trial. Assistant City Prosecutor Isabelo
Sabanal appeared for the State.
When Robert testified, he disclosed that Luz
was already living in California, USA, and had
married an American. He also revealed that
when they were still engaged, Luz continued
seeing and dating another boyfriend, a certain
Lt. Liwag. He also claimed that from the
outset, Luz had been remiss in her duties
both as a wife and as a mother as shown by
the following circumstances: (1) it was he who
did the cleaning of the room because Luz did
not know how to keep order; (2) it was her
mother who prepared their meal while her
sister was the one who washed their clothes
because she did not want her polished nails
destroyed; (3) it was also her sister who took
care of their children while she spent her time
sleeping and looking at the mirror; (4) when
she resumed her schooling, she dated
different men; (5) he received anonymous
letters reporting her loitering with male
students; (6) when he was not home, she
would receive male visitors; (7) a certain Romy
Padua slept in their house when he was away;
and (6) she would contract loans without his
knowledge. aSTAHD
In addition, Robert presented the testimony of
Myrna Delos Reyes Villanueva (Villanueva),
Guidance Psychologist II of Northern
Mindanao Medical Center.
On May 8, 2000, while the case was pending
before the trial court, Robert filed a petition
for marriage annulment with the Metropolitan
Tribunal of First Instance for the Archdiocese
of Manila (Metropolitan Tribunal).
On October 10, 2002, the Metropolitan
Tribunal handed down a decision declaring
their marriage invalid ab initio on the ground
of grave lack of due discretion on the part of
both parties as contemplated by the second
paragraph of Canon1095. This decision was
affirmed by the National Appellate
Matrimonial Tribunal (NAMT).
Prior to that, on September 20, 2002, the RTC
had rendered a decision declaring the
marriage null and void on the ground of
psychological incapacity on the part of Luz as
she failed to comply with the essential marital
obligations.
The State, represented by the Office of the
Solicitor General (OSG), interposed an appeal
with the CA. The OSG argued that Robert
failed to make a case for declaration of nullity
of his marriage with Luz. It pointed out that
the real cause of the marital discord was the
sexual infidelity of Luz. Such ground, the OSG
contended, should not result in the
nullification of the marriage under the law,
but merely constituted a ground for legal
separation.
The CA, in its November 20, 2009 Decision, 4
granted the petition and reversed the RTC
decision. The decision, including the decretal
portion, partially reads:
[W]e find that the trial court committed a
reversible error. Closer scrutiny of the records
reveals, as correctly noted by the Solicitor
General, sexual infidelity are not rooted on
some debilitating psychological condition but
a mere refusal or unwillingness to assume the
essential obligations of marriage. . . . .
TDAcCa
xxx xxx xxx
In the case at bar, apart from his self-serving
declarations, the evidence adduced by Robert
fell short of establishing the fact that at the
time of their marriage, Luz was suffering from
a psychological defect which in fact deprived
[her] of the ability to assume the essential
duties of marriage and its concomitant
responsibilities.
xxx xxx xxx
We commiserate with the plaintiff-appellee's
undeserved marital plight. Yet, Our
paramount duty as a court compels Us to
apply the law at all costs, however harsh it
may be on whomsoever is called upon to bear
its unbiased brunt.
FOR THESE REASONS, the appealed Decision
dated September 20, 2002 in Civil Case No.
94-178 is REVERSED and SET ASIDE. No
costs.
SO ORDERED. 5
Robert filed a motion for reconsideration, but
it was denied by the CA in its June 1, 2010
Resolution, 6 stating that the arguments of
Robert were mere rehash of the same ground,
arguments and discussion previously pointed
out by him, and that no new substance was
brought out to warrant the reconsideration or
reversal of its decision.
Hence, this petition.
ASSIGNMENT OF ERROR:
I
THE HONORABLE COURT OF APPEALS'
HOLDING THAT THE ABSENCE OF THE
PSYCHOLOGICAL EXAMINATION OF THE
WIFE UNDERSCORES THE EVIDENTIAL GAP
TO SUSTAIN THE DECISION OF THE RTC
DECLARING THE MARRIAGE OF PETITIONER
TO RESPONDENT NULL AND VOID ON THE
GROUND OF PSYCHOLOGICAL INCAPACITY
IS CONTRARY TO LAW AND
JURISPRUDENCE.
II
THE RESPONDENT WIFE WAS ALSO
DECLARED BY THE NATIONAL APPELLATE
MATRIMONIAL TRIBUNAL OF THE CATHOLIC
BISHOP'S CONFERENCE OF THE
PHILIPPINES AS GUILTY OF GRAVE LACK OF
DUE DISCRETION. cTSHaE
III
THE RESPONDENT WIFE WAS ALSO FOUND
BY THE LOWER COURT AS
PSYCHOLOGICALLY INCAPACITATED TO
COMPLY WITH THE ESSENTIAL MARITAL
OBLIGATIONS.
Robert now argues that he has sufficiently
proven the nullity of his marriage even in the
absence of any medical, psychiatric or
psychological examination of the wife by a
competent and qualified professional. To
bolster his claim, he avers that the
Metropolitan Tribunal already declared that
Luz exhibited grave lack of discretion in
judgment concerning the essential rights and
obligations mutually given and accepted in
marriage. The said decision was affirmed by
the NAMT.
Robert further argues that the sexual
indiscretion of Luz with different men coupled
with the fact that she failed to function as a
home maker to her family and as a housewife
to him incapacitated her from accepting and
complying with her essential marital
obligations. For said reason, he asserts that
the case of Luz was not a mere case of sexual
infidelity, but clearly an illness that was
rooted on some debilitating psychological
condition which incapacitated her to carry out
the responsibilities of a married woman.
Robert avers that a sex maniac is not just a
mere sexual infidel but one who is suffering
from a deep psychological problem.
Position of the State
The OSG argues that the CA correctly ruled
that the totality of evidence presented by
Robert was not sufficient to support a finding
that Luz was psychologically incapacitated.
His evidence fell short of establishing his
assertion that at the time of their marriage,
Luz was suffering from a psychological defect
which deprived her of the ability to assume
the essential duties of marriage and its
concomitant responsibilities.
With regard to the findings of the Metropolitan
Tribunal and the NAMT, the OSG claims that
the same were only given persuasive value and
were not controlling or decisive in cases of
nullity of marriage. Further, the decision was
based on grave lack of discretion of judgment
concerning matrimonial rights and obligations
due to outside factors other than
psychological incapacity as contemplated in
Article 36 of the Family Code. The OSG also
raises the strong possibility of collusion
between the parties as shown by the events
that took place after the issuance of the March
7, 1996 RTC Decision. The OSG wrote:
SEHaDI
Significantly, the chronological events after
the trial court issued its March 7, 1996
Decision unmistakably show the collusion
between the parties to obtain the reliefs
pleaded. Among others, respondent's
Retraction of Testimony was executed without
the presence of counsel sometime in 1998, a
few months before she married an American.
This irregularity was even noticed by the
Court of Appeals in CA-G.R. CV No. 54261:
xxx xxx xxx
The involvement and active participation of
the Solicitor General became indispensable, in
the present recourse, when, in a whirlwind
turn of events, the Appellee made a VOLTE
FACE executed a "Retraction of Testimony"
and a "Waiver of Custody" waiving custody of
Franco Mark J. Mallillin, still a minor, her son
by the Appellant. It bears stressing that the
Appellee, in the Court a quo, obdurately
denied the material allegations of the
Appellant's complaint and declared that it was
the Appellant who was psychologically
incapacitated. The sudden turn-about of the
appellee, in the present recourse, to the extent
of disowning her testimony in the Court a quo
and even praying for the reversal of the
Decision of the Trial Court is strongly
suggestive, if not constitutive, of collusion or a
modus vivendi between the parties, outlawed
by the Family Code of the Philippines and the
Constitution. . . .
The Court's Ruling
The main issue is whether the totality of the
evidence adduced proves that Luz was
psychologically incapacitated to comply with
the essential obligations of marriage
warranting the annulment of their marriage
under Article 36 of the Family Code.
The petition is bereft of merit.
A petition for declaration of nullity of marriage
is anchored on Article 36 of the Family Code
which provides:
Art. 36. A marriage contracted by any
party who, at the time of the celebration, was
psychologically incapacitated to comply with
the essential marital obligation of marriage,
shall likewise be void even if such incapacity
becomes manifest only after its solemnization.
"Psychological incapacity," as a ground to
nullify a marriage under Article 36 of the
Family Code, should refer to no less than a
mental not merely physical incapacity
that causes a party to be truly incognitive of
the basic marital covenants that
concomitantly must be assumed and
discharged by the parties to the marriage
which, as so expressed in Article 68 of the
Family Code, among others, include their
mutual obligations to live together; observe
love, respect and fidelity; and render help and
support. There is hardly a doubt that the
intendment of the law has been to confine the
meaning of "psychological incapacity" to the
most serious cases of personality disorders
clearly demonstrative of an utter insensitivity
or inability to give meaning and significance to
the marriage. 7 CDAEHS
Psychological incapacity as required by Article
36 must be characterized by (a) gravity, (b)
juridical antecedence and (c) incurability. The
incapacity must be grave or serious such that
the party would be incapable of carrying out
the ordinary duties required in marriage. It
must be rooted in the history of the party
antedating the marriage, although the overt
manifestations may only emerge after the
marriage. It must be incurable or, even if it
were otherwise, the cure would be beyond the
means of the party involved. 8
In Republic v. Court of Appeals and Eduardo
C. De Quintos, Jr., 9 the Court reiterated the
well-settled guidelines in resolving petitions
for declaration of nullity of marriage,
embodied in Republic v. Court of Appeals and
Molina, 10 based on Article 36 of the Family
Code. Thus:
(1) The burden of proof to show the nullity
of the marriage belongs to the plaintiff. Any
doubt should be resolved in favor of the
existence and continuation of the marriage
and against its dissolution and nullity. . . . .
xxx xxx xxx
(2) The root cause of the psychological
incapacity must be (a) medically or clinically
identified, (b) alleged in the complaint, (c)
sufficiently proven by experts and (d) clearly
explained in the decision. Article 36 of the
Family Code requires that the incapacity must
be psychological not physical, although its
manifestations and/or symptoms may be
physical. . . . .
xxx xxx xxx
(3) The incapacity must be proven to be
existing at "the time of the celebration" of the
marriage. . . . .
xxx xxx xxx
(4) Such incapacity must also be shown to
be medically or clinically permanent or
incurable. . . . . SDATEc
xxx xxx xxx
(5) Such illness must be grave enough to
bring about the disability of the party to
assume the essential obligations of marriage.
Thus, "mild characteriological peculiarities,
mood changes, occasional emotional
outbursts" cannot be accepted as root causes.
....
xxx xxx xxx
(6) The essential marital obligations must
be those embraced by Articles 68 up to 71 of
the Family Code as regards the husband and
wife as well as Articles 220, 221 and 225 of
the same Code in regard to parents and their
children. Such non-complied marital
obligation(s) must also be stated in the
petition, proven by evidence and included in
the text of the decision.
(7) Interpretations given by the National
Appellate Matrimonial Tribunal of the Catholic
Church in the Philippines, while not
controlling or decisive, should be given great
respect by our courts. . . . .
xxx xxx xxx
(8) The trial court must order the
prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the state. . . .
.
Guided by these pronouncements, the Court
is of the considered view that Robert's
evidence failed to establish the psychological
incapacity of Luz.
First, the testimony of Robert failed to
overcome the burden of proof to show the
nullity of the marriage. Other than his self-
serving testimony, no other evidence was
adduced to show the alleged incapacity of Luz.
He presented no other witnesses to
corroborate his allegations on her behavior.
Thus, his testimony was self-serving and had
no serious value as evidence.
Second, the root cause of the alleged
psychological incapacity of Luz was not
medically or clinically identified, and
sufficiently proven during the trial. Based on
the records, Robert failed to prove that her
disposition of not cleaning the room,
preparing their meal, washing the clothes, and
propensity for dating and receiving different
male visitors, was grave, deeply rooted, and
incurable within the parameters of
jurisprudence on psychological incapacity.
The alleged failure of Luz to assume her duties
as a wife and as a mother, as well as her
emotional immaturity, irresponsibility and
infidelity, cannot rise to the level of
psychological incapacity that justifies the
nullification of the parties' marriage. The
Court has repeatedly stressed that
psychological incapacity contemplates
"downright incapacity or inability to take
cognizance of and to assume the basic marital
obligations," not merely the refusal, neglect or
difficulty, much less ill will, on the part of the
errant spouse. 11 Indeed, to be declared
clinically or medically incurable is one thing;
to refuse or be reluctant to perform one's
duties is another. Psychological incapacity
refers only to the most serious cases of
personality disorders clearly demonstrative of
an utter insensitivity or inability to give
meaning and significance to the marriage. 12
DTSaHI
As correctly found by the CA, sexual infidelity
or perversion and abandonment do not, by
themselves, constitute grounds for declaring a
marriage void based on psychological
incapacity. Robert argues that the series of
sexual indiscretion of Luz were external
manifestations of the psychological defect that
she was suffering within her person, which
could be considered as nymphomania or
"excessive sex hunger." Other than his
allegations, however, no other convincing
evidence was adduced to prove that these
sexual indiscretions were considered as
nymphomania, and that it was grave, deeply
rooted, and incurable within the term of
psychological incapacity embodied in Article
36. To stress, Robert's testimony alone is
insufficient to prove the existence of
psychological incapacity.
In Sivino A. Ligeralde v. May Ascension A.
Patalinghug and the Republic of the
Philippines, 13 the Court ruled that the
respondent's act of living an adulterous life
cannot automatically be equated with a
psychological disorder, especially when no
specific evidence was shown that promiscuity
was a trait already existing at the inception of
marriage. The petitioner must be able to
establish that the respondent's unfaithfulness
was a manifestation of a disordered
personality, which made her completely
unable to discharge the essential obligations
of the marital state.
Third, the psychological report of Villanueva,
Guidance Psychologist II of the Northern
Mindanao Medical Center, Cagayan de Oro
City, was insufficient to prove the
psychological incapacity of Luz. There was
nothing in the records that would indicate
that Luz had either been interviewed or was
subjected to a psychological examination. The
finding as to her psychological incapacity was
based entirely on hearsay and the self-serving
information provided by Robert.
Fourth, the decision of the Metropolitan
Tribunal is insufficient to prove the
psychological incapacity of Luz. Although it is
true that in the case of Republic v. Court of
Appeals and Molina, 14 the Court stated that
interpretations given by the NAMT of the
Catholic Church in the Philippines, while not
controlling or decisive, should be given great
respect by our courts, still it is subject to the
law on evidence. Thus:
Since the purpose of including such provision
in our Family Code is to harmonize our civil
laws with the religious faith of our people, it
stands to reason that to achieve such
harmonization, great persuasive weight should
be given to decisions of such appellate
tribunal. Ideally subject to our law on
evidence what is decreed as [canonically]
invalid should be decreed civilly void . . . .
(Emphasis supplied) DSHTaC
Pertinently, Rule 132, Section 34 of the Rules
of Evidence provides:
The court shall consider no evidence which
has not been formally offered. The purpose of
which the evidence is offered must be
specified.
In this regard, the belated presentation of the
decision of the NAMT cannot be given value
since it was not offered during the trial, and
the Court has in no way of ascertaining the
evidence considered by the same tribunal.
Granting that it was offered and admitted, it
must be pointed out that the basis of the
declaration of nullity of marriage by the NAMT
was not the third paragraph of Canon 1095
which mentions causes of a psychological
nature similar to Article 36 of the Family
Code, but the second paragraph of Canon
1095 which refers to those who suffer from
grave lack of discretion of judgment
concerning essential matrimonial rights and
obligations to be mutually given and accepted.
For clarity, the pertinent portions of the NAMT
decision are as follows:
The FACTS on the Case prove with the
certitude required by law that based on the
deposition of the petitioner the respondent
understandably ignored the proceedings
completely for which she was duly cited for
Contempt of Court and premised on the
substantially concordant testimonies of the
Witnesses, the woman Respondent
demonstrated in the external forum through
her action and reaction patterns, before and
after the marriage-in-fact, her grave lack of
due discretion in judgement for marriage
intents and purposes basically by reason of
her immaturity of judgement as manifested by
her emotional ambivalence . . . .
WHEREFORE, this COLLEGIAL COURT OF
APPEALS, having invoked the Divine Name
and having in mind the Law, the
Jurisprudence and the Facts pertaining to the
Case, hereby declares and decrees the
confirmation of the nullity decision rendered
by the Metropolitan Tribunal of First Instance
for the Archdiocese of Manila on the Marriage
Case MALLILIN-JAMISOLAMIN with Prot. N.
63/2000 on the ground provided by Canon
1095 par. 2 CIC on the part of the woman
Respondent but NOT on the part of the
man Petitioner for lack of evidence. (Emphases
and underscoring supplied) 15 cSTHaE
In Santos v. Santos, 16 the Court referred to
the deliberations during the sessions of the
Family Code Revision Committee, which
drafted the Code, to provide an insight on the
import of Article 36 of the Family Code. It
went out to state that a part of the provision is
similar to the third paragraph of Canon 1095
of the Code of Canon Law, which reads:
Canon 1095. The following are incapable of
contracting marriage:
1. those who lack sufficient use of reason;
2. those who suffer from a grave lack of
discretion of judgment concerning the
essential matrimonial rights and obligations to
be mutually given and accepted;
3. those who, because of causes of a
psychological nature, are unable to assume
the essential obligations of marriage.
(Emphasis and underscoring supplied)
In Najera v. Najera, 17 the Court was also
confronted with a similar issue of whether to
consider an annulment by the NAMT as also
covering psychological incapacity, the only
ground recognized in our law. In the said case,
the NAMT decision was also based on the
second paragraph of Canon 1095. The Court
ruled that it was not similar to, and only
annulments under the third paragraph of,
Canon 1095 should be considered.
Elucidating, the Court wrote:
Petitioner's argument is without merit.
In its Decision dated February 23, 2004, the
Court of Appeals apparently did not have the
opportunity to consider the decision of the
National Appellate Matrimonial Tribunal.
Nevertheless, it is clear that the Court of
Appeals considered the Matrimonial Tribunal's
decision in its Resolution dated August 5,
2004 when it resolved petitioner's motion for
reconsideration. In the said Resolution, the
Court of Appeals took cognizance of the very
same issues now raised before this Court and
correctly held that petitioner's motion for
reconsideration was devoid of merit. It stated:
The Decision of the National Appellate
Matrimonial Tribunal dated July 2, 2002,
which was forwarded to this Court only on
February 11, 2004, reads as follows:
HCTDIS
[T]he FACTS collated from party complainant
and reliable witnesses which include a sister-
in-law of Respondent (despite summons from
the Court dated June 14, 1999, he did not
appear before the Court, in effect waiving his
right to be heard, hence, trial in absentia
followed) corroborate and lead this Collegiate
Court to believe with moral certainty required
by law and conclude that the husband-
respondent upon contracting marriage
suffered from grave lack of due discretion of
judgment, thereby rendering nugatory his
marital contract: First, his family was
dysfunctional in that as a child, he saw the
break-up of the marriage of his own parents;
his own two siblings have broken marriages;
Second, he therefore grew up with a
domineering mother with whom [he] identified
and on whom he depended for advice; Third,
he was according to his friends, already into
drugs and alcohol before marriage; this
affected his conduct of bipolar kind: he could
be very quiet but later very talkative, peaceful
but later hotheaded even violent, he also was
aware of the infidelity of his mother who now
lives with her paramour, also married and a
policeman; Finally, into marriage, he
continued with his drugs and alcohol abuse
until one time he came home very drunk and
beat up his wife and attacked her with a bolo
that wounded her; this led to final separation.
WHEREFORE, premises considered, this
Court of Second Instance, having invoked the
Divine Name and having considered the
pertinent Law and relevant Jurisprudence to
the Facts of the Case hereby proclaims,
declares and decrees the confirmation of the
sentence from the Court a quo in favor of the
nullity of marriage on the ground
contemplated under Canon 1095, 2 of the
1983 Code of Canon Law.
However, records of the proceedings before the
Trial Court show that, other than herself,
petitioner-appellant offered the testimonies of
the following persons only, to wit: Aldana
Celedonia (petitioner-appellant's mother),
Sonny de la Cruz (member, PNP, Bugallon,
Pangasinan), and Ma. Cristina R. Gates
(psychologist). Said witnesses testified, in
particular, to the unfaithful night of July 1,
1994 wherein the respondent allegedly made
an attempt on the life of the petitioner. But
unlike the hearing and finding before the
Matrimonial Tribunal, petitioner-appellant's
sister-in-law and friends of the opposing
parties were never presented before said
Court. As to the contents and veracity of the
latter's testimonies, this Court is without any
clue. HaAIES
True, in the case of Republic v. Court of
Appeals, et al. (268 SCRA 198), the Supreme
Court held that the interpretations given by
the National Appellate Matrimonial Tribunal of
the Catholic Church in the Philippines, while
not controlling or decisive, should be given
great respect by our courts. However, the
Highest Tribunal expounded as follows:
Since the purpose of including such provision
in our Family Code is to harmonize our civil
laws with the religious faith of our people, it
stands to reason that to achieve such
harmonization, great persuasive weight should
be given to decisions of such appellate
tribunal. Ideally subject to our law on
evidence what is decreed as [canonically]
invalid should be decreed civilly void . . . .
And in relation thereto, Rule 132, Sec. 34 of
the Rules of Evidence states:
The court shall consider no evidence which
has not been formally offered. The purpose of
which the evidence is offered must be
specified.
Given the preceding disquisitions, petitioner-
appellant should not expect us to give
credence to the Decision of the National
Appellate Matrimonial Tribunal when,
apparently, it was made on a different set of
evidence of which We have no way of
ascertaining their truthfulness.
Furthermore, it is an elementary rule that
judgments must be based on the evidence
presented before the court (Manzano vs. Perez,
362 SCRA 430 [2001]). And based on the
evidence on record, We find no ample reason
to reverse or modify the judgment of the Trial
Court.[31]
Santos v. Santos 18 cited the deliberations
during the sessions of the Family Code
Revision Committee, which drafted the Code,
to provide an insight on the import of Article
36 of the Family Code. It stated that a part of
the provision is similar to the third paragraph
of Canon 1095 of the Code of Canon Law,
which reads:
Canon 1095. The following are incapable of
contracting marriage: HCDAcE
1. those who lack sufficient use of reason;
2. those who suffer from a grave lack of
discretion of judgment concerning the
essential matrimonial rights and obligations to
be mutually given and accepted;
3. those who, because of causes of a
psychological nature, are unable to assume
the essential obligations of marriage.
It must be pointed out that in this case, the
basis of the declaration of nullity of marriage
by the National Appellate Matrimonial
Tribunal is not the third paragraph of Canon
1095 which mentions causes of a
psychological nature, but the second
paragraph of Canon 1095 which refers to
those who suffer from a grave lack of
discretion of judgment concerning essential
matrimonial rights and obligations to be
mutually given and accepted. For clarity, the
pertinent portion of the decision of the
National Appellate Matrimonial Tribunal
reads:
The FACTS collated from party complainant
and reliable witnesses which include a sister-
in-law of Respondent (despite summons from
the Court dated June 14, 1999, he did not
appear before the Court, in effect waiving his
right to be heard, hence, trial in absentia
followed) corroborate and lead this Collegiate
Court to believe with moral certainty required
by law and conclude that the husband-
respondent upon contacting marriage suffered
from grave lack of due discretion of judgment,
thereby rendering nugatory his marital
contract . . . .
WHEREFORE, premises considered, this
Court of Second Instance, having invoked the
Divine Name and having considered the
pertinent Law and relevant Jurisprudence to
the Facts of the Case hereby proclaims,
declares and decrees the confirmation of the
sentence from the Court a quo in favor of the
nullity of marriage on the ground
contemplated under Canon 1095, 2 of the
1983 Code of Canon Law. . . . . cEaSHC
Hence, even if, as contended by petitioner, the
factual basis of the decision of the National
Appellate Matrimonial Tribunal is similar to
the facts established by petitioner before the
trial court, the decision of the National
Appellate Matrimonial Tribunal confirming the
decree of nullity of marriage by the court a
quo is not based on the psychological
incapacity of respondent. Petitioner, therefore,
erred in stating that the conclusion of
Psychologist Cristina Gates regarding the
psychological incapacity of respondent is
supported by the decision of the National
Appellate Matrimonial Tribunal.
In fine, the Court of Appeals did not err in
affirming the Decision of the RTC. (Emphases
in the original; Underscoring supplied)
Hence, Robert's reliance on the NAMT decision
is misplaced. To repeat, the decision of the
NAMT was based on the second paragraph of
Canon 1095 which refers to those who suffer
from a grave lack of discretion of judgment
concerning essential matrimonial rights and
obligations to be mutually given and accepted,
a cause not of psychological nature under
Article 36 of the Family Code. A cause of
psychological nature similar to Article 36 is
covered by the third paragraph of Canon 1095
of the Code of Canon Law (Santos v. Santos),
19 which for ready reference reads:
Canon 1095. The following are incapable of
contracting marriage:
xxx xxx xxx
3. those who, because of causes of a
psychological nature, are unable to assume
the essential obligations of marriage.
To hold that annulment of marriages decreed
by the NAMT under the second paragraph of
Canon 1095 should also be covered would be
to expand what the lawmakers did not intend
to include. What would prevent members of
other religious groups from invoking their own
interpretation of psychological incapacity?
Would this not lead to multiple, if not
inconsistent, interpretations?
To consider church annulments as additional
grounds for annulment under Article 36 would
be legislating from the bench. As stated in
Republic v. Court of Appeals and Molina, 20
interpretations given by the NAMT of the
Catholic Church in the Philippines are given
great respect by our courts, but they are not
controlling or decisive. CTEDSI
In Republic v. Galang, 21 it was written that
the Constitution set out a policy of protecting
and strengthening the family as the basic
social institution, and the marriage was the
foundation of the family. Marriage, as an
inviolable institution protected by the State,
cannot be dissolved at the whim of the parties.
In petitions for declaration of nullity of
marriage, the burden of proof to show the
nullity of marriage lies with the plaintiff.
Unless the evidence presented clearly reveals
a situation where the parties, or one of them,
could not have validly entered into a marriage
by reason of a grave and serious psychological
illness existing at the time it was celebrated,
the Court is compelled to uphold the
indissolubility of the marital tie.
In fine, the Court holds that the CA decided
correctly. Petitioner Robert failed to adduce
sufficient and convincing evidence to prove the
alleged psychological incapacity of Luz.
As asserted by the OSG, the allegations of the
petitioner make a case for legal separation.
Hence, this decision is without prejudice to an
action for legal separation if a party would
want to pursue such proceedings. In this
disposition, the Court cannot decree a legal
separation because in such proceedings, there
are matters and consequences like custody
and separation of properties that need to be
considered and settled.
WHEREFORE, the petition is DENIED. The
Decision of the Court of Appeals in CA-G.R.
CV No. 78303-MIN, dated November 20, 2009,
and its Resolution, dated June 1, 2010, are
hereby AFFIRMED, without prejudice.
No costs.
SO ORDERED.
Velasco, Jr. * and Del Castillo, JJ., concur.
Carpio, J., I join the dissent of J. Leonen.
Leonen, J., I dissent. See separate opinion.
Separate Opinions
LEONEN, J., dissenting:
Petitioner Robert F. Mallilin (Robert) filed
separate Petitions one before our courts
and another before the tribunals of the
Catholic Church to have his marriage with
Luz G. Jamesolamin (Luz) declared void.
On September 20, 2002, the Regional Trial
Court voided their marriage after finding Luz
to be psychologically incapacitated to comply
with the essential marital obligations. 1
On October 10, 2002, the Metropolitan
Tribunal of First Instance for the Archdiocese
of Manila (Metropolitan Tribunal) declared
their marriage invalid ab initio "on the ground
of the grave lack of due discretion on the part
of both parties[.]" 2 The National Appellate
Matrimonial Tribunal affirmed this declaration
on April 8, 2003. 3
Despite the declarations of nullity by both the
trial court and the church tribunals, the Court
of Appeals reversed the trial court's Decision
by declaring the marriage valid and
subsisting. 4 This prompted Robert's appeal
before this court. 5 ATcaHS
Robert submits that the trial court had
considered all evidence before it ruled "that
the totality of unrebutted and credible
evidence showing the wife's actions before and
during the marriage leaves no doubt as to her
incapacity to act as wife. . . . Unfortunately,
the Honorable Court of Appeals had
comfortably substituted its own judgment for
that of the trial court by ruling that the
absence of the psychological examination of
the wife underscores the evidential gap to
sustain the Decision of nullity of marriage
rendered by the RTC." 6 Even the church
tribunals 7 found Luz to be "suffering from
Grave Lack of Discretion in Judgment
concerning the essential rights and obligations
mutually given and accepted in marriage[.]" 8
Robert refers to Luz's sexual indiscretion with
different men and her failure to act as
homemaker for her family as bases for her
incapacity to comply with the essential marital
obligations. 9 He argues that "nymphomania
is much more than sexual infidelity, an illness
rooted within the body of a woman." 10 Luz
was sexually involved not with one man, but
with several. 11 She would even bring her
paramour to their conjugal home, showing no
sense of right or wrong. 12
The Office of the Solicitor General counters
that Robert's evidence failed to establish that
at the time of their marriage, Luz was
suffering from a psychological disorder
depriving her of the ability to assume the
essential marital duties. 13 The church
tribunals' findings have persuasive effect, but
these are not controlling. 14 In any case, the
church tribunals' decisions anchored on "lack
of discretion of judgment concerning
matrimonial rights and obligations [that] is
due to outside factors other than a
psychological incapacity as contemplated in
Article 36 of the Family Code." 15
The Office of the Solicitor General also argues
collusion, considering that Luz had executed a
Retraction of Testimony and Waiver of
Custody 16 without the presence of counsel
sometime in 1998, or a few months before she
married an American. 17
The ponencia affirmed the Court of Appeals in
setting aside the trial court Decision voiding
the marriage. It found that Robert failed to
prove Luz's alleged psychological incapacity as
to warrant a declaration of nullity of marriage
under Article 36 of the Family Code. 18
cITCAa
I dissent.
Preliminarily, the argument on collusion
deserves no merit. The factual antecedents
alleged that Robert filed the Complaint for
declaration of nullity on March 16, 1994. The
trial court denied the Complaint. Luz
submitted a Retraction of Testimony and
Waiver of Custody during the pendency of the
case before the Court of Appeals. 19
On January 29, 1999, the Court of Appeals
reversed the trial court by voiding the
Complaint and Answer for failure to comply
with Article 48 of the Family Code on
collusion. The case was remanded to the
designated family court. The lower court then
rendered the September 20, 2002 Decision
voiding the marriage of Robert and Luz. 20
Thus, the issue on collusion was already
addressed when the case was remanded to the
trial court, and the city prosecutor would be
furnished a copy of the Complaint and
Answer. This complies now with Article 48 of
the Family Code:
Art. 48. In all cases of annulment or
declaration of absolute nullity of marriage, the
Court shall order the prosecuting attorney or
fiscal assigned to it to appear on behalf of the
State to take steps to prevent collusion
between the parties and to take care that
evidence is not fabricated or suppressed.
In the cases referred to in the preceding
paragraph, no judgment shall be based upon
a stipulation of facts or confession of
judgment.
Psychological incapacity
guidelines
Examining the development of jurisprudence
21 interpreting Article 36 of the Family Code
will lead to Santos v. Court of Appeals 22 as
the first case attempting to lay down
standards for the concept of "psychological
incapacity." The marriage in Santos was
declared valid and subsisting for failure to
meet the following characteristics:
Justice Sempio-Diy cites with approval the
work of Dr. Gerardo Veloso, a former Presiding
Judge of the Metropolitan Marriage Tribunal
of the Catholic Archdiocese of Manila (Branch
I), who opines that psychological incapacity
must be characterized by (a) gravity, (b)
juridical antecedence, and (c) incurability. The
incapacity must be grave or serious such that
the party would be incapable of carrying out
the ordinary duties required in marriage. . . .
. . . . Thus correlated, "psychological
incapacity" should refer to no less than a
mental (not physical) incapacity that causes a
party to be truly incognitive of the basic
marital covenants that concomitantly must be
assumed and discharged by the parties to the
marriage which, as so expressed by Article 68
of the Family Code, include their mutual
obligations to live together, observe love,
respect and fidelity and render help and
support. There is hardly any doubt that the
intendment of the law has been to confine the
meaning of "psychological incapacity" to the
most serious cases of personality disorders
clearly demonstrative of an utter insensitivity
or inability to give meaning and significance to
the marriage. This psychologic condition must
exist at the time the marriage is celebrated. 23
(Emphasis supplied, citations omitted)
DSAacC
Two years later, this court in Republic v.
Court of Appeals and Molina 24 listed specific
guidelines when interpreting and applying
Article 36 of the Family Code:
(1) The burden of proof to show the nullity
of the marriage belongs to the plaintiff. Any
doubt should be resolved in favor of the
existence and continuation of the marriage
and against its dissolution and nullity. This is
rooted in the fact that both our Constitution
and our laws cherish the validity of marriage
and unity of the family. Thus, our
Constitution devotes an entire Article on the
Family, recognizing it "as the foundation of the
nation." It decrees marriage as legally
"inviolable," thereby protecting it from
dissolution at the whim of the parties. Both
the family and marriage are to be "protected"
by the state.
The Family Code echoes this constitutional
edict on marriage and the family and
emphasizes their permanence, inviolability
and solidarity.
(2) The root cause of the psychological
incapacity must be (a) medically or clinically
identified, (b) alleged in the complaint, (c)
sufficiently proven by experts and (d) clearly
explained in the decision. Article 36 of the
Family Code requires that the incapacity must
be psychological not physical, although its
manifestations and/or symptoms may be
physical. The evidence must convince the
court that the parties, or one of them, was
mentally or physically ill to such an extent
that the person could not have known the
obligations he was assuming, or knowing
them, could not have given valid assumption
thereof. Although no example of such
incapacity need be given here so as not to
limit the application of the provision under the
principle of ejusdem generis, nevertheless
such root cause must be identified as a
psychological illness and its incapacitating
nature fully explained. Expert evidence may
be given by qualified psychiatrists and clinical
psychologists. AIaSTE
(3) The incapacity must be proven to be
existing at "the time of the celebration" of the
marriage. The evidence must show that the
illness was existing when the parties
exchanged their "I do's." The manifestation of
the illness need not be perceivable at such
time, but the illness itself must have attached
at such moment, or prior thereto.
(4) Such incapacity must also be shown to
be medically or clinically permanent or
incurable. Such insurability may be absolute
or even relative only in regard to the other
spouse, not necessarily absolutely against
everyone of the same sex. Furthermore, such
incapacity must be relevant to the assumption
of marriage obligations, not necessarily to
those not related to marriage, like the exercise
of a profession or employment in a job. Hence,
a pediatrician may be effective in diagnosing
illnesses of children and prescribing medicine
to cure them but may not be psychologically
capacitated to procreate, bear and raise
his/her own children as an essential
obligation of marriage.
(5) Such illness must be grave enough to
bring about the disability of the party to
assume the essential obligations of marriage.
Thus, "mild characteriological peculiarities,
mood changes, occasional emotional
outbursts" cannot be accepted as root causes.
The illness must be shown as downright
incapacity or inability, not a refusal, neglect or
difficulty, much less ill will. In other words,
there is a natal or supervening disabling factor
in the person, an adverse integral element in
the personality structure that effectively
incapacitates the person from really accepting
and thereby complying with the obligations
essential to marriage.
(6) The essential marital obligations must
be those embraced by Articles 68 up to 71 of
the Family Code as regards the husband and
wife as well as Articles 220, 221 and 225 of
the same Code in regard to parents and their
children. Such non-complied marital
obligation(s) must also be stated in the
petition, proven by evidence and included in
the text of the decision.
(7) Interpretations given by the National
Appellate Matrimonial Tribunal of the Catholic
Church in the Philippines, while not
controlling or decisive, should be given great
respect by our courts. It is clear that Article
36 was taken by the Family Code Revision
Committee from Canon 1095 of the New Code
of Canon Law, which became effective in 1983
and which provides:
"The following are incapable of contracting
marriage: Those who are unable to assume
the essential obligations of marriage due to
causes of psychological nature." IHAcCS
Since the purpose of including such provision
in our Family Code is to harmonize our civil
laws with the religious faith of our people, it
stands to reason that to achieve such
harmonization, great persuasive weight should
be given to decisions of such appellate
tribunal. Ideally subject to our law on
evidence what is decreed as canonically
invalid should also be decreed civilly void.
This is one instance where, in view of the
evident source and purpose of the Family
Code provision, contemporaneous religious
interpretation is to be given persuasive effect.
Here, the State and the Church while
remaining independent, separate and apart
from each other shall walk together in
synodal cadence towards the same goal of
protecting and cherishing marriage and the
family as the inviolable base of the nation. 25
(Emphasis in the original, citations omitted)
This court has since applied the Molina
guidelines in deciding cases for declaration of
nullity of marriage due to psychological
incapacity. 26 In all psychological incapacity
cases resolved from 1997 to 2009 applying the
Molina guidelines, only the parties in Antonio
v. Reyes 27 were found to have complied with
all the requirements of Molina. 28
Medical, psychiatric, or
psychological examination
Luz did not appear during trial. 29 Robert
disclosed that she was already living in
California, USA and was married to an
American. 30 This can explain why no
medical, psychiatric, or psychological
examination could be conducted on Luz. In
any event, the reversal of the trial court's
finding of psychological incapacity cannot
hinge on this lack of examination.
In 2000, this court in Marcos v. Marcos 31
ruled that "if the totality of evidence presented
is enough to sustain a finding of psychological
incapacity, then actual medical examination of
the person concerned need not be resorted to."
32
This court then issued A.M. No. 02-11-10-SC
also known as the Rule on Declaration of
Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages. This rule
took effect on March 15, 2003.
The rule provides that "[t]he complete facts
should allege the physical manifestations, if
any, as are indicative of psychological
incapacity at the time of the celebration of the
marriage but expert opinion need not be
alleged." 33 It also states that "[i]n case
mediation is not availed of or where it fails,
the court shall proceed with the pre-trial
conference, on which occasion it shall
consider the advisability of receiving expert
testimony and such other matters as may aid
in the prompt disposition of the petition." 34
cDHCAE
A.M. No. 02-11-10-SC thus codified the ruling
in Marcos that examination by a physician or
psychologist is not a conditio sine qua non for
a declaration of nullity of marriage. 35
In 2010, this court voided the marriage in
Camacho-Reyes v. Reyes 36 discussing that
"[t]he lack of personal examination and
interview of the respondent, or any other
person diagnosed with personality disorder,
does not per se invalidate the testimonies of
the doctors [and] [n]either do their findings
automatically constitute hearsay that would
result in their exclusion as evidence." 37
Thus, the psychological report of Myrna de los
Reyes Villanueva, a Guidance Psychologist II
of the Northern Mindanao Medical Center in
Cagayan de Oro, 38 cannot be considered
hearsay on the ground that Luz was not
interviewed and examined. A marriage
involves two persons only. Necessarily, these
two are in the best position to testify on the
other's behavior during their marriage. Put in
this context, Robert's testimony cannot be
disregarded for being self-serving.
In any event, Myrna de los Reyes Villanueva
administered five tests 39 on Robert before
concluding that "Robert Malillin [sic] is
psychologically incapacitated to [c]arry out the
responsibility of married life especially with an
individual who is equally emotionally infertile
and immature[.]" 40 Robert quoted Myrna de
los Reyes Villanueva's testimony as follows:
Q: Can you explain to the court what is
your recommendation?
A: He is emotionally infantile and
immature considering also that he is of age
and as there is chronological age
responsibility, we have profound emotional
quotation chronologically. In one of my
interview with client, he manifested that he
was left out that most have created the
vacuum. . . . often times in his relationship
with woman, he would look for a woman, more
or less has a mother figure.
Q: As you said in your recommendation,
Mr. Malillin is psychologically incapacitated to
carry out responsibility with the emotional
infantile and immature, egocentric and mother
dependence?
A: In our psychological examination, there
is said stress in him as a person as that of the
child, the ego, the adult, the parents, what is
dominant traits in person, what behavior
appear when I say youth, the individual
display more on a child on him, it is the child
who is concern with the feeling or reaction, if
the person react more incapable impulses that
is distracted, he is more of infantile than
adult, in the case of Robert Malillin if we cite,
he related to me that he is having some affairs
with some women so I can see that he is quite
speaking of nature and individual getting
through serious responsibilities of married
life. DCcSHE
Q: Since you stated that you have
interviewed this Robert Malillin, several
incidents, have you talk matters regarding his
wife?
A: Yes, he told me that the wife had
several affairs in fact, there was a short doubt
of his first son because upon learning that he
offered marriage, the woman refused and that
fuel his doubt later because he learns that the
woman is with another guys and he said that
woman contracting loans without his
knowledge and the woman is not even taking
care of the child.
Q: Considering that Mr. Malillin had
dispute with his wife, he would say that the
wife is infantile and immature?
A: The transaction is the same because
they were both child and the child here has no
decision made then there is nothing to reach
up.
Q: Base on your observation with this case
Malillin is infantile and immature?
A: Both parties were infantile, immature,
what would happen, just imagine two children
living, what would be the relationship of the
husband and wife, they would keep on
challenging each other. 41 (Emphasis
supplied)
National Appellate
Matrimonial Tribunal
interpretations
The ponencia discussed that the National
Appellate Matrimonial Tribunal Decision was
not offered during trial as required under Rule
132, Section 34 of the Rules of Court. 42 The
ponencia added that even if the National
Appellate Matrimonial Tribunal Decision was
considered, this was based on the second
paragraph of Canon 1095 on grave lack of
discretion and not the third paragraph, which
was similar to Article 36 of the Family Code.
43
Robert could not have offered the church
tribunal rulings during trial since the trial
court had rendered its Decision on September
20, 2002, or before the Metropolitan Tribunal
rendered its Decision on October 10, 2002. 44
The Metropolitan Tribunal's Decision even
included a restrictive clause "to the effect that
neither of the parties may enter into another
marriage without the express permission of
this tribunal, in deference to the sanctity and
dignity of the sacrament as well as for the
protection of the intended spouse." 45 The
National Appellate Matrimonial Tribunal
confirmed this nullity Decision, discussing its
findings as follows: THacES
The FACTS on the Case prove with the
certitude required by law that based on the
deposition of the Petitioner the Respondent
understand[a]bly ignored the proceedings
completely for which she was duly cited for
Contempt of Court and premised on the
substantially concordant testimonies of the
Witnesses, the woman Respondent
demonstrated in the external forum through
her action and reaction patterns, before and
after the marriage-in-fact, her grave lack of
due discretion in judgment for marriage
intents and purposes basically by reason of
her immaturity of judgement as manifested by
her emotional ambivalence and affective
instability that were sufficiently evidenced by
the three following more salient factors in the
Case which are de officio abbreviated and
generalized for judicial prudence in deference
[to] her person: One, THAT the Respondent
already practiced a fundamental ambivalence
in her emotional constitution by engaging in
multiple carnal attachements [sic] at an early
age. Two, THAT the Respondent was in effect
ultimately rendered pregnant by the Petitioner
when she was but nineteen years old. Three,
THAT the Respondent after her de facto
marriage with the Petitioner demonstrated her
affective instability by entertaining as well
several carnal relationships that finally
terminated the union of some fourteen years
that were punctuated by several temporary
separations and that brought to life no less
than three children. As to the matter of the
relatively long time frame of the union, it
should be noted that just as the mere passage
of time does not nullify an ab initio valid
marriage, neither does it ipso facto validate an
ab initio null and void marriage. As to the
question of the number of children born of the
union, just as there are valid marriages
without children, the[re] are invalid marriages
with children. The presence of children from a
union directly prove biological potency on the
part of both the Parties in Causa not
necessarily their tenure of due discretion in
judgement for marriage. 46 (Emphasis
supplied)
On Canon 1095, the marriage in Antonio v.
Reyes 47 was also annulled by the
Metropolitan Tribunal. That marriage was
affirmed with modification by the National
Appellate Matrimonial Tribunal, 48 finding
that "respondent was impaired by a lack of
due discretion." 49 This court discussed that:
DTSaHI
Of particular notice has been the citation of
the Court, first in Santos then in Molina, of
the considered opinion of canon law experts in
the interpretation of psychological incapacity.
This is but unavoidable, considering that the
Family Code committee had bluntly
acknowledged that the concept of
psychological incapacity was derived from
canon law, and as one member admitted,
enacted as a solution to the problem of
marriages already annulled by the Catholic
Church but still existent under civil law. It
would be disingenuous to disregard the
influence of Catholic Church doctrine in the
formulation and subsequent understanding of
Article 36, and the Court has expressly
acknowledged that interpretations given by
the National Appellate Matrimonial Tribunal of
the local Church, while not controlling or
decisive, should be given great respect by our
courts. Still, it must be emphasized that the
Catholic Church is hardly the sole source of
influence in the interpretation of Article 36.
Even though the concept may have been
derived from canon law, its incorporation into
the Family Code and subsequent judicial
interpretation occurred in wholly secular
progression. Indeed, while Church thought on
psychological incapacity is merely persuasive
on the trial courts, judicial decisions of this
Court interpreting psychological incapacity are
binding on lower courts.
xxx xxx xxx
As noted earlier, the Metropolitan Tribunal of
the Archdiocese of Manila decreed the
invalidity of the marriage in question in a
Conclusion dated 30 March 1995, citing the
"lack of due discretion" on the part of
respondent. Such decree of nullity was
affirmed by both the National Appellate
Matrimonial Tribunal, and the Roman Rota of
the Vatican. In fact, respondent's
psychological incapacity was considered so
grave that a restrictive clause was appended
to the sentence of nullity prohibiting
respondent from contracting another marriage
without the Tribunal's consent. 50 (Emphasis
supplied, citations omitted)
Najera v. Najera 51 came three years later and
differentiated the second and third paragraphs
of Canon 1095. This court discussed how
Article 36 of the Family Code was based on
the third paragraph of Canon 1095 as a
ground and not the second paragraph: 52
Canon 1095. The following are incapable of
contracting marriage: DISaEA
1. those who lack sufficient use of reason;
2. those who suffer from a grave lack of
discretion of judgment concerning the
essential matrimonial rights and obligations to
be mutually given and accepted;
3. those who, because of causes of a
psychological nature, are unable to assume
the essential obligations of marriage. 53
(Emphasis supplied)
The facts of Najera are not in point. In Najera,
the trial court considered the evidence
presented and decreed only the legal
separation of the parties, and not annulment
of the marriage. 54 The Court of Appeals no
longer considered the National Appellate
Matrimonial Tribunal's Decision since "it was
made on a different set of evidence of which
[w]e have no way of ascertaining their
truthfulness . . . [a]nd based on the evidence
on record, [w]e find no ample reason to reverse
or modify the judgment of the Trial Court." 55
On the other hand, both the trial court and
the National Appellate Matrimonial Tribunal
voided the marriage between Robert and Luz.
Assuming the two tribunals considered
different sets of evidence, they nevertheless
reached the same conclusion of declaring the
nullity of the marriage.
A declaration of nullity of marriage by the
church requires two positive decisions to be
executory one by the first instance tribunal
and another by the second instance tribunal.
56 This process, though not conclusive,
warrants respect by this court. The decisions
of these tribunals must be considered for their
persuasive effect, especially in fulfillment of
the intent behind Article 36 of the Family
Code "to harmonize our civil laws with the
religious faith [such that] . . . subject to our
law on evidence[,] what is decreed as
canonically invalid should also be decreed
civilly void." 57
In the end, every case filed on Article 36 of the
Family Code requiring an application of the
Molina guidelines must be considered on a
case-to-case basis. 58
Flexible Molina guidelines
In 2009, this court in Ngo Te v. Gutierrez Yu-
Te 59 voided Kenneth and Rowena's marriage
on the ground of their psychological
incapacity. This court observed how "[t]he
resiliency with which the concept [of
psychological incapacity] should be applied
and the case-to-case basis by which the
provision should be interpreted, as so
intended by its framers, had, somehow, been
rendered ineffectual by the imposition of a set
of strict standards in Molina[.]" 60 This court
expressed fear that Molina became a
straitjacket for all subsequent Article 36
cases. 61 TaSEHD
This court in Ngo Te was clear in "not
suggesting the abandonment of Molina[,]" 62
but stressed how "courts should interpret the
provision on a case-to-case basis; guided by
experience, the findings of experts and
researchers in psychological disciplines, and
by decisions of church tribunals." 63 Ting v.
Velez-Ting 64 promulgated a month after Ngo
Te suggested a "relaxation of the stringent
requirements" 65 laid down in Molina.
In 2010, Suazo v. Suazo 66 explained that Ngo
Te "stands for a more flexible approach in
considering petitions for declaration of nullity
of marriages based on psychological
incapacity" 67 and upholds an evidentiary
approach:
By the very nature of Article 36, courts,
despite having the primary task and burden of
decision-making, must not discount but,
instead, must consider as decisive evidence
the expert opinion on the psychological and
mental temperaments of the parties.
xxx xxx xxx
Hernandez v. Court of Appeals emphasizes the
importance of presenting expert testimony to
establish the precise cause of a party's
psychological incapacity, and to show that it
existed at the inception of the marriage. And
as Marcos v. Marcos asserts, there is no
requirement that the person to be declared
psychologically incapacitated be personally
examined by a physician, if the totality of
evidence presented is enough to sustain a
finding of psychological incapacity. Verily, the
evidence must show a link, medical or the
like, between the acts that manifest
psychological incapacity and the psychological
disorder itself.
This is not to mention, but we mention
nevertheless for emphasis, that the
presentation of expert proof presupposes a
thorough and in-depth assessment of the
parties by the psychologist or expert, for a
conclusive diagnosis of a grave, severe and
incurable presence of psychological
incapacity. 68 (Emphasis in the original,
citation omitted)
Since Ngo Te, it appears that only the parties
in Azcueta v. Republic, 69 Halili v. Santos-
Halili, 70 Camacho-Reyes v. Reyes, 71 and
Aurelio v. Aurelio 72 obtained a decree of
nullity of their marriage under Article 36.
The difficulty in obtaining a declaration of
nullity of marriage in this jurisdiction, so
evident from our jurisprudence with only a
handful of granted petitions, reflects an
absolute position taken by the state to contest
all petitions until it reaches this court.
EHSAaD
The Constitution no doubt mandates the state
to protect the social institution that is
marriage the foundation of the family.
However, the Constitution also mandates the
state to defend "[t]he right of spouses to found
a family in accordance with their religious
convictions and the demands of responsible
parenthood[.]" 73 In other words, the right to
family must be based on one's own personal
convictions. The state, under the guise of
protecting the marriage, should not force two
people to stay together, albeit in paper, when
they are incapable of complying with their
essential marital obligations with each other.
Right to family
In Antonio v. Reyes, this court discussed that
"the Constitution itself does not establish the
parameters of state protection to marriage as
a social institution and the foundation of the
family." 74
The Constitution describes marriage as
"inviolable" 75 while the law portrays it as a
"permanent union." 76 Nevertheless, the state
cannot insist on such permanence and
inviolability per se under the pretense of its
constitutional mandate to protect the
existence of every marriage. The state's
interest in any and all marriages entered into
by individuals should not amount to an
unjustified intrusion into one's right to
autonomy and human dignity. 77
The notion of "permanent" is not a
characteristic that inheres without a purpose.
The Family Code clearly provides for the
purpose of entering into marriage, that is, "for
the establishment of conjugal and family life."
78 Consequently, the state's interest in
protecting the marriage must anchor on
ensuring a sound conjugal union capable of
maintaining a healthy environment for a
family, resulting in a more permanent union.
The state's interest cannot extend to forcing
two individuals to stay within a destructive
marriage.
The Family Code provides that the "nature,
consequences, and incidents [of marriage] are
governed by law and not subject to
stipulation," 79 but this does not go as far as
reaching into the choices of intimacy inherent
in human relations. These choices form part of
autonomy, protected by the liberty 80 and
human dignity 81 clauses. Human dignity
includes our choices of association, and we
are as free to associate and identify as we are
free not to associate or identify.
Our choices of intimate partners define us
inherent ironically in our individuality.
Consequently, when the law speaks of the
nature, consequences, and incidents of
marriage governed by law, this refers to
responsibility to children, property relations,
disqualifications, privileges, and other matters
limited to ensuring the stability of society. The
state's interest should not amount to
unwarranted intrusions into individual
liberties. AcaEDC
Since the state's interest must be toward the
stability of society, the notion of psychological
incapacity should not only be based on a
medical or psychological disorder, but should
consist of the inability to comply with
essential marital obligations such that public
interest is imperiled.
The Molina guidelines provide that church
tribunal decisions have persuasive effect on
our courts. Nevertheless, the notion of
"psychological incapacity" should not be
religious. None of our laws should be based on
any religious law, doctrine, or teaching. We
are a secular state. The separation of state
and church must at all times be inviolable. 82
The state protects the family by not forcing its
structure; otherwise, there will be "broken
families." The Constitution does not define
"family," but characterizes it as "the basic
autonomous social institution." 83 The state
should encourage all family arrangements,
whether or not borne out of love or "in love."
The presumption should be in favor of
choices.
Thus, when both husband and wife, the trial
court that considered first-hand all evidence
presented, as well as two levels of church
tribunals, have all determined without
reservation that one or both of the parties are
incapable of complying with the essential
marital obligations, or gravely lack the
discretion of judgment regarding these marital
obligations, the state must be open to the
possibility that there was never a marriage as
contemplated by the Constitution and law to
protect. cTSHaE
Under these conditions, there is no interest,
public or private, to protect in the continued
declaration of the existence of a marriage. If at
all, the couple now separated and living their
own lives are imposed with an unjust burden
of a false status. This is pure and simple
cruelty.
Accordingly, I vote to grant the Petition.
SECOND DIVISION
[G.R. No. 210929. July 29, 2015.]
REPUBLIC OF THE PHILIPPINES,
petitioner, vs. EDNA ORCELINO-
VILLANUEVA, respondent.
DECISION
MENDOZA, J p:
In this petition for review on certiorari under
Rule 45 of the Rules of Court, the Office of the
Solicitor General (OSG), on behalf of the
Republic of the Philippines, assails the
October 18, 2013 Decision 1 and the January
8, 2014 Resolution 2 of the Court of Appeals
(CA), in CA-G.R. S.P. No. 03768-MIN, which
affirmed the October 8, 2009 Judgment 3 of
the Regional Trial Court, Branch 10,
Malaybalay City, Bukidnon (RTC), in SP Proc.
Case No. 3316-09, granting the petition of
respondent Edna Orcelino-Villanueva (Edna)
and declaring her husband, Romeo L.
Villanueva (Romeo), as presumptively dead
under Article 41 of the Family Code. 4
aICcHA
The Antecedents
Edna and Romeo were married on December
21, 1978, in Iligan City.
In 1992, Edna worked as domestic helper in
Singapore while her husband worked as a
mechanic in Valencia City, Bukidnon. In
1993, Edna heard the news from her children
that Romeo had left their conjugal home
without reason or information as to his
whereabouts.
Thereafter, Edna took a leave from work and
returned to the country to look for Romeo. She
inquired from her parents-in-law and common
friends in Iligan City. Still, she found no leads
as to his whereabouts or existence. She also
went to his birthplace in Escalante, Negros
Oriental, and inquired from his relatives.
On August 6, 2009, Edna filed before the RTC
a petition 5 to declare Romeo presumptively
dead under Article 41 of the Family Code.
During the trial, Edna was presented as the
lone witness. In its October 8, 2009 Order, 6
the RTC granted the petition on the basis of
her well-founded belief of Romeo's death.
Hence:
WHEREFORE, premises considered, judgment
is hereby rendered declaring Romeo L.
Villanueva to be presumptively dead for all
legal intents and purposes in accordance with
Article 41 of the Family Code of the
Philippines, without prejudice to his
reappearance.
SO ORDERED. 7
On August 13, 2010, the OSG filed a petition
for certiorari under Rule 65 of the Rules of
Court before the CA alleging grave abuse of
discretion on the part of the RTC in finding
that Edna had a well-founded belief that
Romeo, her absent spouse, was dead. It
argued that the conclusions reached by the
RTC were in direct opposition to established
jurisprudence, as ruled by the Court in
Republic v. Nolasco 8 (Nolasco) and U.S. v.
Biasbas. 9
On October 18, 2013, the CA dismissed the
petition, holding that the RTC acted within its
jurisdiction in issuing the assailed decision
having been expressly clothed with the power
to determine the case. 10 It also cited Article
247 of the Family Code 11 which provided for
the final and immediate executory character of
the decision of the RTC, acting as a family
court, thus, rendering the issue of whether or
not Edna had sufficiently established a well-
founded belief to warrant the decree of
presumptive death of her absent spouse, as
moot and academic. HSCATc
On November 20, 2013, the OSG filed a
motion for reconsideration but the CA denied
it on January 8, 2014.
Hence, this petition.
ISSUES
I.
WHETHER OR NOT THE CA ERRED IN
AFFIRMING THE RTC DECISION DESPITE
THE FACT THAT THE CONCLUSION
REACHED BY THE RTC IS CONTRARY TO
PREVAILING JURISPRUDENCE.
II.
WHETHER OR NOT THE CA ERRED IN
RULING THAT THE GROUNDS RAISED BY
THE PETITIONER TO ASSAIL THE RTC
DECISION ARE MERE ERRORS OF
JUDGMENT. 12
The OSG argues that the CA erred in not
finding grave abuse of discretion on the part of
the RTC when the latter affirmed the existence
of Edna's well-founded belief as to the death of
her absent spouse. It claims that the evidence
presented by Edna, which merely consisted of
bare and uncorroborated assertions, never
amounted to a diligent and serious search
required under prevailing jurisprudence.
Respondent Edna, through her counsel,
invokes the finality, inalterability and
immutability of the RTC decision, which was
affirmed by the CA. 13
Ruling of the Court
The Court grants the petition.
Article 41 of the Family Code provides that
before a judicial declaration of presumptive
death may be granted, the present spouse
must prove that he/she has a well-founded
belief that the absentee is dead. 14 In this
case, Edna failed. The RTC and the CA
overlooked Edna's patent non-compliance with
the said requirement. EHaASD
The well-founded belief in the absentee's
death requires the present spouse to prove
that his/her belief was the result of diligent
and reasonable efforts to locate the absent
spouse and that based on these efforts and
inquiries, he/she believes that under the
circumstances, the absent spouse is already
dead. It necessitates exertion of active effort
(not a mere passive one). Mere absence of the
spouse (even beyond the period required by
law), lack of any news that the absentee
spouse is still alive, mere failure to
communicate, or general presumption of
absence under the Civil Code would not
suffice. 15 The premise is that Article 41 of
the Family Code places upon the present
spouse the burden of complying with the
stringent requirement of "well-founded belief"
which can only be discharged upon a showing
of proper and honest-to-goodness inquiries
and efforts to ascertain not only the absent
spouse's whereabouts but, more importantly,
whether the absent spouse is still alive or is
already dead. 16
This strict standard approach ensures that a
petition for declaration of presumptive death
under Article 41 of the Family Code is not
used as a tool to conveniently circumvent the
laws in light of the State's policy to protect
and strengthen the institution of marriage.
Courts should never allow procedural
shortcuts but instead should see to it that the
stricter standard required by the Family Code
is met. 17
Accordingly, in a string of cases, this Court
has denied petitions for the declaration of
presumptive death on the said basis.
In Republic of the Philippines v. Court of
Appeals, 18 the Court ruled that the present
spouse failed to prove that he had a well-
founded belief that his absent spouse was
already dead before he filed his petition. His
efforts to locate his absent wife allegedly
consisted of the following:
(1) He went to his in-laws' house to look
for her;
(2) He sought the barangay captain's aid to
locate her;
(3) He went to her friends' houses to find
her and inquired about her whereabouts
among her friends;
(4) He went to Manila and worked as a
part-time taxi driver to look for her in malls
during his free time;
(5) He went back to Catbalogan and again
looked for her; and
(6) He reported her disappearance to the
local police station and to the NBI.
Despite these claimed "earnest efforts," the
Court still ruled against the present spouse.
The Court explained that he failed to present
the persons from whom he made inquiries and
only reported his wife's absence after the OSG
filed its notice to dismiss his petition in the
RTC.
Similarly in Republic v. Granada, 19 the Court
ruled that the present spouse failed to prove
her "well-founded belief" that her absent
spouse was already dead prior to her filing of
the petition. She simply did not exert diligent
efforts to locate her husband either in the
country or in Taiwan, where he was known to
have worked. Moreover, she did not explain
her omissions. In said case, the Court wrote:
IDTSEH
The belief of the present spouse must be the
result of proper and honest to goodness
inquiries and efforts to ascertain the
whereabouts of the absent spouse and
whether the absent spouse is still alive or is
already dead. Whether or not the spouse
present acted on a well-founded belief of the
death of the absent spouse depends upon
inquiries to be drawn from a great many
circumstances occurring before and after the
disappearance of an absent spouse and the
nature and extent of the inquiries made by the
present spouse.
In Nolasco, the present spouse filed a petition
for declaration of presumptive death of his
wife, who had been missing for more than four
years. He testified that his efforts to find her
consisted of:
(1) Searching for her whenever his ship
docked in England;
(2) Sending her letters which were all
returned to him; and
(3) Inquiring from their friends regarding
her whereabouts, which all proved fruitless.
The Court held that the present spouse's
methods of investigation were too sketchy to
form a basis that his wife was already dead. It
stated that the pieces of evidence only proved
that his wife had chosen not to communicate
with their common acquaintances, and not
that she was dead.
Recently, in Republic v. Cantor 20 (Cantor),
the Court considered the present spouse's
efforts to have fallen short of the "stringent
standard" and lacked the degree of diligence
required by jurisprudence as she did not
actively look for her missing husband; that
she did not report his absence to the police or
seek the aid of the authorities to look for him;
that she did not present as witnesses her
missing husband's relatives or their neighbors
and friends, who could corroborate her efforts
to locate him; that these persons, from whom
she allegedly made inquiries, were not even
named; and that there was no other
corroborative evidence to support her claim
that she conducted a diligent search. In the
Court's view, the wife merely engaged in a
"passive search" where she relied on
uncorroborated inquiries from her in-laws,
neighbors and friends. She, thus, failed to
conduct a diligent search. Her claimed efforts
were insufficient to form a well-founded belief
that her husband was already dead.
In this case, Edna claimed to have done the
following to determine the whereabouts and
the status of her husband:
1. She took a vacation/leave of absence
from her work and returned to the Philippines
to look for her husband.
2. She inquired from her parents-in-law in
Iligan City and from their common friends in
the same city and in Valencia City.
3. She went as far as the birthplace of her
husband in Escalante, Negros Oriental, so she
could inquire from her husband's relatives.
Despite her efforts, she averred that she
received negative responses from them
because none of them had knowledge of the
existence of her husband who had been
missing for 15 years.
Applying the standard set forth by the Court
in the previously cited cases, particularly
Cantor, Edna's efforts failed to satisfy the
required well-founded belief of her absent
husband's death.
Her claim of making diligent search and
inquiries remained unfounded as it merely
consisted of bare assertions without any
corroborative evidence on record. She also
failed to present any person from whom she
inquired about the whereabouts of her
husband. She did not even present her
children from whom she learned the
disappearance of her husband. In fact, she
was the lone witness. Following the basic rule
that mere allegation is not evidence and is not
equivalent to proof, 21 the Court cannot give
credence to her claims that she indeed exerted
diligent efforts to locate her husband.
DaIAcC
Moreover, no document was submitted to
corroborate the allegation that her husband
had been missing for at least fifteen (15) years
already. As the OSG observed, there was not
even any attempt to seek the aid of the
authorities at the time her husband
disappeared. In Cantor, the present spouse
claimed to have sought the aid of the
authorities or, at the very least, reported his
absence to the police. 22 Yet, the Court denied
her pleas.
Verily, it makes sense to conclude that her
efforts were not diligent and serious enough to
give meaning to her well-founded belief that
Romeo was already dead. Suffice it to state
that her petition should have been denied at
the first instance. The RTC, however, granted
it, reasoning
. . . that it was in 1993 when the petitioner
while abroad heard the news from her
children that her husband left their conjugal
home . . . without informing the children nor
communicating with the herein petitioner as
to the reasons why he left their family abode
nor giving them any information as to his
whereabouts; that herein petitioner took
vacation/leave of absence from her work and
return to the Philippines, in order to look for
her husband and made some inquiries with
her parents-in-law in Iligan City, from their
common friends in Iligan City and in Valencia
City, and even went as far as the birthplace of
her husband, particularly at Escalante,
Negros Oriental, inquiring from her husband's
relatives, but she only got negative response
from them since none of them have any
knowledge as to the present existence of her
husband that since the year 1993 up to the
present, a period of about fifteen [15] years
have elapsed, the person and the body of
petitioner's husband could not be found,
located nor traced as there is no any
information as to his existence or
whereabouts. 23
Worse, the CA affirmed the RTC decision when
it dismissed the petition for certiorari filed by
the OSG. The CA should have realized the
glaring and patent disregard by the RTC of the
rulings in similar situations where petitions
for declaration of presumptive death have
been denied by this Court. By declaring
Romeo presumptively dead, the CA clearly
ignored this Court's categorical
pronouncements.
WHEREFORE, the petition is GRANTED.
Accordingly, the October 18, 2013 Decision
and the January 8, 2014 Resolution of the
Court of Appeals are hereby REVERSED and
SET ASIDE. The petition of respondent Edna
Orcelino-Villanueva to have her husband
declared presumptively dead is DENIED.
SICDAa
SO ORDERED.
Carpio, Brion and Perlas-Bernabe, * JJ.,
concur.
Leonen, J., see dissenting opinion.
Separate Opinions
LEONEN, J., dissenting:
Edna Orcelino-Villanueva (Edna) was a
domestic helper based in Singapore. In 1993,
she came home immediately after she heard
news from her children that her husband,
Romeo L. Villanueva (Romeo), left their
conjugal dwelling. She came home, leaving her
work, for the purpose of looking for her
husband and taking care of her children. She
had limited resources for her search.
For 15 or 16 years, she endured the absence
of her husband. Within those long years,
whether in good times or bad, she never heard
from him. He did not discharge any of his
duties as husband.
In ruling against her and concluding that she
did not search hard enough for Romeo, the
majority fails to appreciate several crucial
facts:
First, Edna turned away from her livelihood,
her modest means of subsistence, just to
search for Romeo.
Second, Edna did not only embark on a token
search. She did not limit herself to her
parents-in-law and to common friends in
Iligan City, the place where she and Romeo
were married. Edna went all the way to
Romeo's birthplace, which was Escalante,
Negros Oriental. There, she inquired from
Romeo's relatives as to his whereabouts.
Third, 15 or 16 years had passed since Edna
was told that Romeo had gone missing when
she filed her Petition to declare Romeo
presumptively dead. If Edna merely intended
to use a petition for declaration of
presumptive death as a convenient means for
circumventing laws that protect the institution
of marriage, it is astounding that she would
await the inconvenience of 15 or 16 years.
Edna established a well-founded belief that
her husband, Romeo, is already dead.
I vote to sustain the assailed October 18, 2013
Decision 1 and January 8, 2014 Resolution 2
of the Court of Appeals in CA-G.R. SP No.
03768-MIN, affirming the October 8, 2009
Judgment 3 of the Regional Trial Court,
Branch 10, Malaybalay City, Bukidnon,
declaring Romeo presumptively dead pursuant
to Article 41 of the Family Code.
I reiterate the position I articulated in my
dissent to Republic of the Philippines v.
Cantor. 4 I maintain that a strict standard
should not be used in evaluating the efforts
made by a spouse to ascertain the status and
whereabouts of an absent spouse. The marital
obligations provided for by the Family Code
require the continuing presence of each
spouse. A spouse is well to suppose that this
shall be resolutely fulfilled by the other
spouse. Failure to do so for the period
established by law gives rise to the
presumption that the absent spouse is dead,
thereby enabling the spouse present to
remarry. TAacHE
Article 41 of the Family Code provides:
Art. 41. A marriage contracted by any
person during subsistence of a previous
marriage shall be null and void, unless before
the celebration of the subsequent marriage,
the prior spouse had been absent for four
consecutive years and the spouse present has
a well-founded belief that the absent spouse
was already dead. In case of disappearance
where there is danger of death under the
circumstances set forth in the provisions of
Article 391 of the Civil Code, an absence of
only two years shall be sufficient. ASTcaE
For the purpose of contracting the subsequent
marriage under the preceding paragraph the
spouse present must institute a summary
proceeding as provided in this Code for the
declaration of presumptive death of the
absentee, without prejudice to the effect of
reappearance of the absent spouse.
Article 41's requirement of a "well-grounded
belief" calls for an inquiry into a spouse's state
of mind. 5 Otherwise abstract, one's state of
mind can only be ascertained through overt
acts.
Article 41 requires this belief to be "well-
grounded." It therefore requires nothing more
than for a spouse to have a "reasonable basis
for holding to such belief." 6 Article 41 relies
on a basic and plain test: rationality. 7
What is rational in each case depends on
context. Rationality is not determined by the
blanket imposition of pre-conceived
standards. Rather, it is better determined by
an appreciation of a person's unique
circumstances. 8
Moreover, all that Article 41 calls to sustain is
a presumption. By definition, there is no need
for absolute certainty. A presumption is, by
nature, favorable to a party and dispenses
with the burden of proving. Consequently,
neither is there a need for conduct that
establishes such a high degree of cognizance
that what is established is proof, and no
longer a presumption:
In declaring a person presumptively dead, a
court is called upon to sustain a presumption,
it is not called upon to conclude on verity or to
establish actuality. In so doing, a court infers
despite an acknowledged uncertainty. Thus, to
insist on such demanding and extracting
evidence to "show enough proof of a well-
founded belief", is to insist on an inordinate
and intemperate standard. 9
It is improper for the majority to insist upon
the same "strict standard approach" 10 that
was relied on in Cantor and conclude that
Edna's efforts "were not diligent and serious
enough." 11 The majority fails to appreciate
several crucial facts in this case that define
the limits of her situation. DHIcET
Edna's lack of resources appears in the
records. She only had the ability to present
herself as witness.
Concededly, Edna could have engaged in other
efforts asking for the help of police officers,
filing a formal missing-person report,
announcing Romeo's absence in radio or
television programs as would show how
painstakingly she endeavored to search for
Romeo. Insisting on Edna to have also made
these efforts, however, is to insist that she act
in an ideal manner. It takes her away from her
own reality and requires her to fulfill pre-
conceived notions of what satisfies notice. It
fails to appreciate the merit of the lengths she
actually went through to search for Romeo.
Unless Edna had the ability to gain access to
radio or television programs with nationwide
coverage or ensure that her notices were
posted in all precincts, then requiring this
type of search would have been futile and
economically wasteful. If we are to lend truth
to the concept of social justice, we have to
make judgments based on her context. To
reiterate, she is one of the millions who had to
go abroad to earn a more prosperous life for
herself and her children. She had to cut short
her employment to come home and make an
honest search for her husband. To require her
to squander more time and money to reach
media and the police would have been
economically expensive for her. The law
should be interpreted in the context of reality
and ours is different from Edna's.
Edna was an abandoned wife whose husband
was missing for 15 or 16 years. Her search for
Romeo began more than two decades ago in a
province in Mindanao, far removed from this
nation's capital. She was an overseas Filipino
worker, a domestic helper, who was compelled
to return to the Philippines to tend to a
missing husband. Twenty-two years ago, when
she embarked on her search, she could not
have been aided by the convenience of ready
access to communication networks. To go to
her husband's birthplace and inquire from his
relatives, she could not have merely boarded
an hour-long flight; she must have endured
hours, even days at sea. It is in light of these
human realities that Edna's efforts must be
appreciated.
This court must realize that insisting upon an
ideal will never yield satisfactory results. A
stringent evaluation of a party's efforts made
out of context will always reveal means
through which a spouse could have 'done
more' or walked the proverbial extra mile to
ascertain his or her spouse's whereabouts. A
reason could always be conceived for
concluding that a spouse did not try 'hard
enough.' HDICSa
So, too, insisting on Edna's perceived
shortcomings unjustly puts the blame on her
and undermines the shortcoming that Romeo
himself committed. All marital obligations
recognized in the Family Code are predicated
upon each spouse's presence. The primordial
marital obligation is "to live together, observe
mutual love, respect and fidelity, and render
mutual help and support." 12 As I explained
in my dissent in Cantor:
The opinions of a recognized authority in civil
law, Arturo M. Tolentino, are particularly
enlightening:
Meaning of "Absent" Spouse. The provisions
of this article are of American origin, and must
be construed in the light of American
jurisprudence. An identical provision (except
for the period) exists in the California civil
code (section 61); California jurisprudence
should, therefore, prove enlightening. It has
been held in that jurisdiction that, as respects
the validity of a husband's subsequent
marriage, a presumption as to the death of his
first wife cannot be predicated upon an
absence resulting from his leaving or deserting
her, as it is his duty to keep her advised as to
his whereabouts. The spouse who has been
left or deserted is the one who is considered as
the 'spouse present'; such spouse is not
required to ascertain the whereabouts of the
deserting spouse, and after the required
number of years of absence of the latter, the
former may validly remarry.
Precisely, it is a deserting spouse's failure to
comply with what is reasonably expected of
him/her and to fulfil the responsibilities that
are all but normal to a spouse which makes
reasonable (i.e., well-grounded) the belief that
should he/she fail to manifest his/her
presence within a statutorily determined
reasonable period, he/she must have been
deceased. The law is of the confidence that
spouses will in fact "live together, observe
mutual love, respect and fidelity, and render
mutual help and support" such that it is not
the business of the law to assume any other
circumstance than that a spouse is deceased
in case he/she becomes absent. 13
It is Romeo who has been absent. In so doing,
he is rightly considered to be no longer in a
position to perform his marital obligations to
Edna. Having been absent for the statutorily
prescribed period despite his legal obligations
as a married spouse, Romeo should be rightly
considered presumptively dead.
The majority burdened itself with ensuring
that petitions for declaration of presumptive
death are not used as procedural shortcuts
that undermine the institution of marriage.
While this is a valid concern, the majority goes
to unnecessary lengths to discharge this
burden. Article 41 of the Family Code
concedes that there is a degree of risk in
presuming a spouse to be dead, as the absent
spouse may, in fact, be alive and well. Thus,
Article 41 provides that declarations of
presumptive death are "without prejudice to
the reappearance of the absent spouse." The
state is thus not bereft of remedies.
Consistent with this, Article 42 of the Family
Code provides for the automatic termination of
the subsequent marriage entered into by the
present spouse should the absent spouse
reappear: HcDSaT
Art. 42. The subsequent marriage
referred to in the preceding Article shall be
automatically terminated by the recording of
the affidavit of reappearance of the absent
spouse, unless there is a judgment annulling
the previous marriage or declaring it void ab
initio.
A sworn statement of the fact and
circumstances of reappearance shall be
recorded in the civil registry of the residence of
the parties to the subsequent marriage at the
instance of any interested person, with due
notice to the spouses of the subsequent
marriage and without prejudice to the fact of
reappearance being judicially determined in
case such fact is disputed. DTCSHA
Moreover, in Santos v. Santos, 14 we
recognized that in cases where a declaration of
presumptive death was fraudulently obtained,
the subsequent marriage shall not only be
terminated, but all other effects of the
declaration nullified by a successful petition
for annulment of judgment:
The proper remedy for a judicial declaration of
presumptive death obtained by extrinsic fraud
is an action to annul the judgment. An
affidavit of reappearance is not the proper
remedy when the person declared
presumptively dead has never been absent.
xxx xxx xxx
Therefore, for the purpose of not only
terminating the subsequent marriage but also
of nullifying the effects of the declaration of
presumptive death and the subsequent
marriage, mere filing of an affidavit of
reappearance would not suffice. 15
The majority is gripped with the apprehension
that a petition for declaration of presumptive
death may be availed of as a dangerous
expedient. Nothing, in this case, sustains fear.
A misplaced anxiety is all that there is. As
things stand, Edna has shown facts that
warrant a declaration that Romeo is
presumptively dead. Proceeding from these
merits, this Petition must be denied.
ACCORDINGLY, I vote to DENY the Petition.
The Decision of the Court of Appeals in CA-
G.R. SP No. 03768-MIN, affirming the October
8, 2009 Judgment of the Regional Trial Court,
Branch 10, Malaybalay City, Bukidnon,
declaring Romeo L. Villanueva presumptively
dead pursuant to Article 41 of the Family
Code, must be affirmed. IDaEHC
EN BANC
[G.R. No. 184621. December 10, 2013.]
REPUBLIC OF THE PHILIPPINES,
petitioner, vs. MARIA FE ESPINOSA
CANTOR, respondent.
DECISION
BRION, J p:
The petition for review on certiorari 1 before
us assails the decision 2 dated August 27,
2008 of the Court of Appeals (CA) in CA-G.R.
SP No. 01558-MIN which affirmed the order 3
dated December 15, 2006 of the Regional Trial
Court (RTC), Branch 25, Koronadal City,
South Cotabato, in SP Proc. Case No. 313-25,
declaring Jerry F. Cantor, respondent Maria
Fe Espinosa Cantor's husband, presumptively
dead under Article 41 of the Family Code.
aDTSHc
The Factual Antecedents
The respondent and Jerry were married on
September 20, 1997. They lived together as
husband and wife in their conjugal dwelling in
Agan Homes, Koronadal City, South Cotabato.
Sometime in January 1998, the couple had a
violent quarrel brought about by: (1) the
respondent's inability to reach "sexual climax"
whenever she and Jerry would have intimate
moments; and (2) Jerry's expression of
animosity toward the respondent's father.
After their quarrel, Jerry left their conjugal
dwelling and this was the last time that the
respondent ever saw him. Since then, she had
not seen, communicated nor heard anything
from Jerry or about his whereabouts.
On May 21, 2002, or more than four (4) years
from the time of Jerry's disappearance, the
respondent filed before the RTC a petition 4
for her husband's declaration of presumptive
death, docketed as SP Proc. Case No. 313-25.
She claimed that she had a well-founded belief
that Jerry was already dead. She alleged that
she had inquired from her mother-in-law, her
brothers-in-law, her sisters-in-law, as well as
her neighbors and friends, but to no avail. In
the hopes of finding Jerry, she also allegedly
made it a point to check the patients' directory
whenever she went to a hospital. All these
earnest efforts, the respondent claimed,
proved futile, prompting her to file the petition
in court. EHCaDS
The Ruling of the RTC
After due proceedings, the RTC issued an
order granting the respondent's petition and
declaring Jerry presumptively dead. It
concluded that the respondent had a well-
founded belief that her husband was already
dead since more than four (4) years had
passed without the former receiving any news
about the latter or his whereabouts. The
dispositive portion of the order dated
December 15, 2006 reads:
WHEREFORE, the Court hereby declares, as it
hereby declared that respondent Jerry F.
Cantor is presumptively dead pursuant to
Article 41 of the Family Code of the
Philippines without prejudice to the effect of
the reappearance of the absent spouse Jerry
F. Cantor. 5
The Ruling of the CA
The case reached the CA through a petition for
certiorari 6 filed by the petitioner, Republic of
the Philippines, through the Office of the
Solicitor General (OSG). In its August 27,
2008 decision, the CA dismissed the
petitioner's petition, finding no grave abuse of
discretion on the RTC's part, and, accordingly,
fully affirmed the latter's order, thus:
WHEREFORE, premises foregoing (sic), the
instant petition is hereby DISMISSED and the
assailed Order dated December 15, 2006
declaring Jerry F. Cantor presumptively dead
is hereby AFFIRMED in toto. 7
The petitioner brought the matter via a Rule
45 petition before this Court. ITAaCc
The Petition
The petitioner contends that certiorari lies to
challenge the decisions, judgments or final
orders of trial courts in petitions for
declaration of presumptive death of an absent
spouse under Rule 41 of the Family Code. It
maintains that although judgments of trial
courts in summary judicial proceedings,
including presumptive death cases, are
deemed immediately final and executory
(hence, not appealable under Article 247 of
the Family Code), this rule does not mean that
they are not subject to review on certiorari.
The petitioner also posits that the respondent
did not have a well-founded belief to justify
the declaration of her husband's presumptive
death. It claims that the respondent failed to
conduct the requisite diligent search for her
missing husband. Likewise, the petitioner
invites this Court's attention to the attendant
circumstances surrounding the case,
particularly, the degree of search conducted
and the respondent's resultant failure to meet
the strict standard under Article 41 of the
Family Code. EHcaDT
The Issues
The petition poses to us the following issues:
(1) Whether certiorari lies to challenge the
decisions, judgments or final orders of trial
courts in petitions for declaration of
presumptive death of an absent spouse under
Article 41 of the Family Code; and
(2) Whether the respondent had a well-
founded belief that Jerry is already dead.
The Court's Ruling
We grant the petition.
a. On the Issue of the Propriety
Certiorari as a Remedy
Court's Judgment in the Judicial
Proceedings for Declaration of
Presumptive Death is Final and
Executory, Hence, Unappealable
The Family Code was explicit that the court's
judgment in summary proceedings, such as
the declaration of presumptive death of an
absent spouse under Article 41 of the Family
Code, shall be immediately final and
executory.
Article 41, in relation to Article 247, of the
Family Code provides:
Art. 41. A marriage contracted by any
person during subsistence of a previous
marriage shall be null and void, unless before
the celebration of the subsequent marriage,
the prior spouse had been absent for four
consecutive years and the spouse present has
a well-founded belief that the absent spouse
was already dead. In case of disappearance
where there is danger of death under the
circumstances set forth in the provisions of
Article 391 of the Civil Code, an absence of
only two years shall be sufficient.
For the purpose of contracting the subsequent
marriage under the preceding paragraph the
spouse present must institute a summary
proceeding as provided in this Code for the
declaration of presumptive death of the
absentee, without prejudice to the effect of
reappearance of the absent spouse. ICTcDA
Art. 247. The judgment of the court shall
be immediately final and executory.
[underscores ours]
With the judgment being final, it necessarily
follows that it is no longer subject to an
appeal, the dispositions and conclusions
therein having become immutable and
unalterable not only as against the parties but
even as against the courts. 8 Modification of
the court's ruling, no matter how erroneous is
no longer permissible. The final and executory
nature of this summary proceeding thus
prohibits the resort to appeal. As explained in
Republic of the Phils. v. Bermudez-Lorino, 9
the right to appeal is not granted to parties
because of the express mandate of Article 247
of the Family Code, to wit:
In Summary Judicial Proceedings under the
of Family Code, there is no reglementary period
within which to perfect an appeal, precisely
because judgments rendered thereunder, by
express provision of [Article] 247, Family
Code, supra, are "immediately final and
executory." It was erroneous, therefore, on the
part of the RTC to give due course to the
Republic's appeal and order the transmittal of
the entire records of the case to the Court of
Appeals.
An appellate court acquires no jurisdiction to
review a judgment which, by express provision
of law, is immediately final and executory. As
we have said in Veloria vs. Comelec, "the right
to appeal is not a natural right nor is it a part
of due process, for it is merely a statutory
privilege." Since, by express mandate of Article
247 of the Family Code, all judgments
rendered in summary judicial proceedings in
Family Law are "immediately final and
executory," the right to appeal was not
granted to any of the parties therein. The
Republic of the Philippines, as oppositor in the
petition for declaration of presumptive death,
should not be treated differently. It had no
right to appeal the RTC decision of November
7, 2001. [emphases ours; italics supplied]
Certiorari Lies to Challenge the
Decisions, Judgments or Final
Orders of Trial Courts in a Summary
Proceeding for the Declaration of
Presumptive Death under the
Family Code
A losing party in this proceeding, however, is
not entirely left without a remedy. While
jurisprudence tells us that no appeal can be
made from the trial court's judgment, an
aggrieved party may, nevertheless, file a
petition for certiorari under Rule 65 of the
Rules of Court to question any abuse of
discretion amounting to lack or excess of
jurisdiction that transpired. IDCHTE
As held in De los Santos v. Rodriguez, et al.,
10 the fact that a decision has become final
does not automatically negate the original
action of the CA to issue certiorari, prohibition
and mandamus in connection with orders or
processes issued by the trial court. Certiorari
may be availed of where a court has acted
without or in excess of jurisdiction or with
grave abuse of discretion, and where the
ordinary remedy of appeal is not available.
Such a procedure finds support in the case of
Republic v. Tango, 11 wherein we held that:
This case presents an opportunity for us to
settle the rule on appeal of judgments
rendered in summary proceedings under the
Family Code and accordingly, refine our
previous decisions thereon.
Article 238 of the Family Code, under Title XI:
SUMMARY JUDICIAL PROCEEDINGS IN THE
FAMILY LAW, establishes the rules that
govern summary court proceedings in the
Family Code:
"ART. 238. Until modified by the Supreme
Court, the procedural rules in this Title shall
apply in all cases provided for in this Code
requiring summary court proceedings. Such
cases shall be decided in an expeditious
manner without regard to technical rules."
In turn, Article 253 of the Family Code
specifies the cases covered by the rules in
chapters two and three of the same title. It
states:
"ART. 253. The foregoing rules in Chapters 2
and 3 hereof shall likewise govern summary
proceedings filed under Articles 41, 51, 69,
73, 96, 124 and 217, insofar as they are
applicable." (Emphasis supplied.)
In plain text, Article 247 in Chapter 2 of the
same title reads:
"ART. 247. The judgment of the court shall
be immediately final and executory." cSDIHT
By express provision of law, the judgment of
the court in a summary proceeding shall be
immediately final and executory. As a matter
of course, it follows that no appeal can be had
of the trial court's judgment in a summary
proceeding for the declaration of presumptive
death of an absent spouse under Article 41 of
the Family Code. It goes without saying,
however, that an aggrieved party may file a
petition for certiorari to question abuse of
discretion amounting to lack of jurisdiction.
Such petition should be filed in the Court of
Appeals in accordance with the Doctrine of
Hierarchy of Courts. To be sure, even if the
Court's original jurisdiction to issue a writ of
certiorari is concurrent with the RTCs and the
Court of Appeals in certain cases, such
concurrence does not sanction an unrestricted
freedom of choice of court forum. [emphasis
ours]
Viewed in this light, we find that the
petitioner's resort to certiorari under Rule 65
of the Rules of Court to question the RTC's
order declaring Jerry presumptively dead was
proper. AaEDcS
b. On the Issue of the Existence of Well-
Founded Belief
The Essential Requisites for the
Declaration of Presumptive Death
under Article 41 of the Family Code
Before a judicial declaration of presumptive
death can be obtained, it must be shown that
the prior spouse had been absent for four
consecutive years and the present spouse had
a well-founded belief that the prior spouse was
already dead. Under Article 41 of the Family
Code, there are four (4) essential requisites for
the declaration of presumptive death:
1. That the absent spouse has been
missing for four consecutive years, or two
consecutive years if the disappearance
occurred where there is danger of death under
the circumstances laid down in Article 391,
Civil Code;
2. That the present spouse wishes to
remarry;
3. That the present spouse has a well-
founded belief that the absentee is dead; and
4. That the present spouse files a
summary proceeding for the declaration of
presumptive death of the absentee. 12
The Present Spouse Has the Burden
of Proof to Show that All the
Requisites under Article 41 of the
Family Code are Present
The burden of proof rests on the present
spouse to show that all the requisites under
Article 41 of the Family Code are present.
Since it is the present spouse who, for
purposes of declaration of presumptive death,
substantially asserts the affirmative of the
issue, it stands to reason that the burden of
proof lies with him/her. He who alleges a fact
has the burden of proving it and mere
allegation is not evidence. 13 CEcaTH
Declaration of Presumptive Death
under Article 41 of the Family Code
Imposes a Stricter Standard
Notably, Article 41 of the Family Code,
compared to the old provision of the Civil Code
which it superseded, imposes a stricter
standard. It requires a "well-founded belief"
that the absentee is already dead before a
petition for declaration of presumptive death
can be granted. We have had occasion to
make the same observation in Republic v.
Nolasco, 14 where we noted the crucial
differences between Article 41 of the Family
Code and Article 83 of the Civil Code, to wit:
Under Article 41, the time required for the
presumption to arise has been shortened to
four (4) years; however, there is need for a
judicial declaration of presumptive death to
enable the spouse present to remarry. Also,
Article 41 of the Family Code imposes a
stricter standard than the Civil Code: Article
83 of the Civil Code merely requires either
that there be no news that such absentee is
still alive; or the absentee is generally
considered to be dead and believed to be so by
the spouse present, or is presumed dead
under Articles 390 and 391 of the Civil Code.
The Family Code, upon the other hand,
prescribes as "well founded belief" that the
absentee is already dead before a petition for
declaration of presumptive death can be
granted.
Thus, mere absence of the spouse (even for
such period required by the law), lack of any
news that such absentee is still alive, failure
to communicate or general presumption of
absence under the Civil Code would not
suffice. This conclusion proceeds from the
premise that Article 41 of the Family Code
places upon the present spouse the burden of
proving the additional and more stringent
requirement of "well-founded belief" which can
only be discharged upon a showing of proper
and honest-to-goodness inquiries and efforts
to ascertain not only the absent spouse's
whereabouts but, more importantly, that the
absent spouse is still alive or is already dead.
15 CHTAIc
The Requirement of Well-Founded
Belief
The law did not define what is meant by "well-
founded belief." It depends upon the
circumstances of each particular case. Its
determination, so to speak, remains on a
case-to-case basis. To be able to comply with
this requirement, the present spouse must
prove that his/her belief was the result of
diligent and reasonable efforts and inquiries to
locate the absent spouse and that based on
these efforts and inquiries, he/she believes
that under the circumstances, the absent
spouse is already dead. It requires exertion of
active effort (not a mere passive one).
To illustrate this degree of "diligent and
reasonable search" required by the law, an
analysis of the following relevant cases is
warranted:
i. Republic of the Philippines v. Court of
Appeals (Tenth Div.) 16
In Republic of the Philippines v. Court of
Appeals (Tenth Div.), 17 the Court ruled that
the present spouse failed to prove that he had
a well-founded belief that his absent spouse
was already dead before he filed his petition.
His efforts to locate his absent wife allegedly
consisted of the following:
(1) He went to his in-laws' house to look
for her;
(2) He sought the barangay captain's aid to
locate her;
(3) He went to her friends' houses to find
her and inquired about her whereabouts
among his friends;
(4) He went to Manila and worked as a
part-time taxi driver to look for her in malls
during his free time;
(5) He went back to Catbalogan and again
looked for her; and
(6) He reported her disappearance to the
local police station and to the NBI.
Despite these alleged "earnest efforts," the
Court still ruled against the present spouse.
The Court found that he failed to present the
persons from whom he allegedly made
inquiries and only reported his wife's absence
after the OSG filed its notice to dismiss his
petition in the RTC.
The Court also provided the following criteria
for determining the existence of a "well-
founded belief" under Article 41 of the Family
Code:
The belief of the present spouse must be the
result of proper and honest to goodness
inquiries and efforts to ascertain the
whereabouts of the absent spouse and
whether the absent spouse is still alive or is
already dead. Whether or not the spouse
present acted on a well-founded belief of death
of the absent spouse depends upon the
inquiries to be drawn from a great many
circumstances occurring before and after the
disappearance of the absent spouse and the
nature and extent of the inquiries made by
[the] present spouse. 18
ii. Republic v. Granada 19
Similarly in Granada, the Court ruled that the
absent spouse failed to prove her "well-
founded belief" that her absent spouse was
already dead prior to her filing of the petition.
In this case, the present spouse alleged that
her brother had made inquiries from their
relatives regarding the absent spouse's
whereabouts. The present spouse did not
report to the police nor seek the aid of the
mass media. Applying the standards in
Republic of the Philippines v. Court of Appeals
(Tenth Div.), 20 the Court ruled against the
present spouse, as follows: ETDHSa
Applying the foregoing standards to the
present case, petitioner points out that
respondent Yolanda did not initiate a diligent
search to locate her absent husband. While
her brother Diosdado Cadacio testified to
having inquired about the whereabouts of
Cyrus from the latter's relatives, these
relatives were not presented to corroborate
Diosdado's testimony. In short, respondent
was allegedly not diligent in her search for her
husband. Petitioner argues that if she were,
she would have sought information from the
Taiwanese Consular Office or assistance from
other government agencies in Taiwan or the
Philippines. She could have also utilized mass
media for this end, but she did not. Worse,
she failed to explain these omissions.
iii. Republic v. Nolasco 21
In Nolasco, the present spouse filed a petition
for declaration of presumptive death of his
wife, who had been missing for more than four
years. He testified that his efforts to find her
consisted of:
(1) Searching for her whenever his ship
docked in England;
(2) Sending her letters which were all
returned to him; and
(3) Inquiring from their friends regarding
her whereabouts, which all proved fruitless.
The Court ruled that the present spouse's
investigations were too sketchy to form a basis
that his wife was already dead and ruled that
the pieces of evidence only proved that his
wife had chosen not to communicate with
their common acquaintances, and not that
she was dead.
iv. The present case
In the case at bar, the respondent's "well-
founded belief" was anchored on her alleged
"earnest efforts" to locate Jerry, which
consisted of the following: TaDCEc
(1) She made inquiries about Jerry's
whereabouts from her in-laws, neighbors and
friends; and
(2) Whenever she went to a hospital, she
saw to it that she looked through the patients'
directory, hoping to find Jerry.
These efforts, however, fell short of the
"stringent standard" and degree of diligence
required by jurisprudence for the following
reasons:
First, the respondent did not actively look for
her missing husband. It can be inferred from
the records that her hospital visits and her
consequent checking of the patients' directory
therein were unintentional. She did not
purposely undertake a diligent search for her
husband as her hospital visits were not
planned nor primarily directed to look for him.
This Court thus considers these attempts
insufficient to engender a belief that her
husband is dead.
Second, she did not report Jerry's absence to
the police nor did she seek the aid of the
authorities to look for him. While a finding of
well-founded belief varies with the nature of
the situation in which the present spouse is
placed, under present conditions, we find it
proper and prudent for a present spouse,
whose spouse had been missing, to seek the
aid of the authorities or, at the very least,
report his/her absence to the police.
Third, she did not present as witnesses Jerry's
relatives or their neighbors and friends, who
can corroborate her efforts to locate Jerry.
Worse, these persons, from whom she
allegedly made inquiries, were not even
named. As held in Nolasco, the present
spouse's bare assertion that he inquired from
his friends about his absent spouse's
whereabouts is insufficient as the names of
the friends from whom he made inquiries were
not identified in the testimony nor presented
as witnesses.
Lastly, there was no other corroborative
evidence to support the respondent's claim
that she conducted a diligent search. Neither
was there supporting evidence proving that
she had a well-founded belief other than her
bare claims that she inquired from her friends
and in-laws about her husband's
whereabouts.
In sum, the Court is of the view that the
respondent merely engaged in a "passive
search" where she relied on uncorroborated
inquiries from her in-laws, neighbors and
friends. She failed to conduct a diligent search
because her alleged efforts are insufficient to
form a well-founded belief that her husband
was already dead. As held in Republic of the
Philippines v. Court of Appeals (Tenth Div.),
22 "[w]hether or not the spouse present acted
on a well-founded belief of death of the absent
spouse depends upon the inquiries to be
drawn from a great many circumstances
occurring before and after the disappearance
of the absent spouse and the nature and
extent of the inquiries made by [the] present
spouse." cDTCIA
Strict Standard Approach is
Consistent with the State's Policy to
Protect and Strengthen Marriage
In the above-cited cases, the Court, fully
aware of the possible collusion of spouses in
nullifying their marriage, has consistently
applied the "strict standard" approach. This is
to ensure that a petition for declaration of
presumptive death under Article 41 of the
Family Code is not used as a tool to
conveniently circumvent the laws. Courts
should never allow procedural shortcuts and
should ensure that the stricter standard
required by the Family Code is met. In
Republic of the Philippines v. Court of Appeals
(Tenth Div.), 23 we emphasized that:
In view of the summary nature of proceedings
under Article 41 of the Family Code for the
declaration of presumptive death of one's
spouse, the degree of due diligence set by this
Honorable Court in the above-mentioned
cases in locating the whereabouts of a missing
spouse must be strictly complied with. There
have been times when Article 41 of the Family
Code had been resorted to by parties wishing
to remarry knowing fully well that their
alleged missing spouses are alive and well. It
is even possible that those who cannot have
their marriages . . . declared null and void
under Article 36 of the Family Code resort to
Article 41 of the Family Code for relief because
of the . . . summary nature of its proceedings.
The application of this stricter standard
becomes even more imperative if we consider
the State's policy to protect and strengthen
the institution of marriage. 24 Since marriage
serves as the family's foundation 25 and since
it is the state's policy to protect and
strengthen the family as a basic social
institution, 26 marriage should not be
permitted to be dissolved at the whim of the
parties. In interpreting and applying Article
41, this is the underlying rationale to
uphold the sanctity of marriage. Arroyo, Jr. v.
Court of Appeals 27 reflected this sentiment
when we stressed: DHSEcI
[The] protection of the basic social institutions
of marriage and the family in the preservation
of which the State has the strongest interest;
the public policy here involved is of the most
fundamental kind. In Article II, Section 12 of
the Constitution there is set forth the
following basic state policy:
The State recognizes the sanctity of family life
and shall protect and strengthen the family as
a basic autonomous social institution.
Strict Standard Prescribed under
Article 41 of the Family Code is for
the Present Spouse's Benefit
The requisite judicial declaration of
presumptive death of the absent spouse (and
consequently, the application of a stringent
standard for its issuance) is also for the
present spouse's benefit. It is intended to
protect him/her from a criminal prosecution
of bigamy under Article 349 of the Revised
Penal Code which might come into play if
he/she would prematurely remarry sans the
court's declaration.
Upon the issuance of the decision declaring
his/her absent spouse presumptively dead,
the present spouse's good faith in contracting
a second marriage is effectively established.
The decision of the competent court
constitutes sufficient proof of his/her good
faith and his/her criminal intent in case of
remarriage is effectively negated. 28 Thus, for
purposes of remarriage, it is necessary to
strictly comply with the stringent standard
and have the absent spouse judicially declared
presumptively dead.
Final Word
As a final word, it has not escaped this Court's
attention that the strict standard required in
petitions for declaration of presumptive death
has not been fully observed by the lower
courts. We need only to cite the instances
when this Court, on review, has consistently
ruled on the sanctity of marriage and
reiterated that anything less than the use of
the strict standard necessitates a denial. To
rectify this situation, lower courts are now
expressly put on notice of the strict standard
this Court requires in cases under Article 41
of the Family Code. HEScID
WHEREFORE, in view of the foregoing, the
assailed decision dated August 27, 2008 of the
Court of Appeals, which affirmed the order
dated December 15, 2006 of the Regional Trial
Court, Branch 25, Koronadal City, South
Cotabato, declaring Jerry F. Cantor
presumptively dead is hereby REVERSED and
SET ASIDE.
SO ORDERED.
Sereno, C.J., Carpio, Leonardo-de Castro,
Peralta, Bersamin, Del Castillo, Villarama, Jr.,
Perez, Reyes and Perlas-Bernabe, JJ., concur.
Velasco, Jr., J., please see concurring opinion.
Abad, J., I join the dissenting opinion of
Justice M. M. V. F. Leonen.
Mendoza, J., I join J. Leonen in his position.
Leonen, J., see dissenting opinion.
Separate Opinions
VELASCO, JR., J., concurring:
I vote for the granting of the petition.
The facts of this case are simple. Sometime in
January 1998, Jerry F. Cantor (Jerry) left his
wife, Maria Fe Espinosa Cantor (Maria Fe),
after a violent quarrel. Since then, Maria had
not seen or heard from him. TEcAHI
After more than four (4) years of not seeing or
hearing from Jerry, Maria Fe filed a petition
for the declaration of presumptive death of her
husband with the Regional Trial Court,
Branch 25, Koronadal City, South Cotabato
(RTC). In sum, Maria Fe alleged that she
conducted a diligent search for her husband
and exerted earnest efforts to find him. She
allegedly inquired from her mother-in-law,
brothers-in-law, sisters-in-law, neighbors, and
friends but no one could tell her where Jerry
was. Whenever she went to a hospital, she
made it a point to look through the patients'
directory, hoping to find Jerry. On the basis of
the foregoing, Maria Fe claimed that she had a
well-founded belief that her husband, Jerry,
was already dead.
The RTC granted her petition and thus
declared Jerry as presumptively dead
pursuant to Article 41 of the Family Code. The
Court of Appeals affirmed in toto the RTC
Decision and held that there had been no
grave abuse of discretion on the part of the
RTC in having declared Jerry presumptively
dead. Dissatisfied with the ruling of the Court
of Appeals (CA), the Office of the Solicitor
General (OSG) filed the present Petition for
Review on Certiorari under Rule 45 of the
Rules of Civil Procedure arguing that Maria Fe
did not have a well-founded belief that Jerry
was dead. EcHIDT
I fully agree that whether or not one has a
"well-founded belief" that his or her spouse is
dead depends on the unique circumstances of
each case and that there is no set standard or
procedure in determining the same. It is my
opinion that Maria Fe failed to conduct a
search with such diligence as to give rise to a
"well-founded belief" that her husband is
dead. Further, the circumstances of Jerry's
departure and Maria Fe's behavior after he left
make it difficult to consider her belief a well-
founded one.
To reiterate, Maria Fe's alleged "well-founded"
belief arose when: (1) Jerry's relatives and
friends could not give her any information on
his whereabouts; and (2) she did not find
Jerry's name in the patients' directory
whenever she went to a hospital. To my mind,
Maria Fe's reliance on these alone makes her
belief weak and flimsy rather than "well-
founded."
Further, it appears that Maria Fe did not
actively look for her husband in hospitals and
that she searched for Jerry's name in these
hospitals' list of patients merely as an
afterthought. Moreover, it may be sensed from
the given facts that her search was not
intentional or planned. This may be noted
from the fact that whenever Maria Fe went to
a hospital, she made it a point to look through
the patients' directory, hoping to find Jerry.
Verily, it is as if she searched the patient's
directory only when she was in a hospital by
coincidence. HAEDCT
Maria Fe's search for Jerry was far from
diligent. At the very least, Maria Fe should
have looked for Jerry in the places he
frequented. Moreover, she should have sought
the assistance of the barangay or the police in
searching for her husband, like what could be
reasonably expected of any person with a
missing spouse or loved one. These very basic
things, she did not do. It may have been
advantageous, too, if Maria Fe approached the
media for help or posted photos of Jerry in
public places with requests for information on
his whereabouts. While I agree that We cannot
ask the impossible from a spouse who was
abandoned, it is not too much to expect the
foregoing actions from someone who has lost a
spouse. aSTECI
This Court has been consistent in its strict
application of Article 41 of the Family Code.
This is clear in the cases cited in the ponencia
where the Court, notwithstanding the
evidence on the efforts of the present spouse
to search for the absent spouse, still found
that the present spouse's search was not
diligent enough and that the said spouse
failed to prove that he or she had a well-
founded belief that the absent spouse was
already dead. I would like to share my
observation that compared to Maria Fe, the
present spouses in the said cases exerted
similar, or if not, even more effort in their
searches, and presented similar evidence to
prove the same. Yet, the Court found their
efforts and evidence wanting.
For instance, in Republic v. Court of Appeals
and Alegro, 1 respondent Alegro testified that
when his wife Lea went missing, he asked
Lea's parents as well as their friends if they
knew where she was. He stated that he went
to Manila to search for her among her friends
and would even look for her in malls. Alegro
reported Lea's disappearance to the local
police station and the National Bureau of
Investigation. Despite these efforts, this Court
held that Alegro failed to prove that he had a
well-founded belief, before he filed his petition
in the RTC, that his spouse was already dead.
The Court explained:
In this case, the respondent failed to present a
witness other than Barangay Captain Juan
Magat. The respondent even failed to present
Janeth Bautista or Nelson Abaenza or any
other person from whom he allegedly made
inquiries about Lea to corroborate his
testimony. On the other hand, the respondent
admitted that when he returned to the house
of his parents-in-law on February 14, 1995,
his father-in-law told him that Lea had just
been there but that she left without notice.
HcTSDa
The respondent declared that Lea left their
abode on February 7, 1995 after he chided her
for coming home late and for being always out
of their house, and told her that it would be
better for her to go home to her parents if she
enjoyed the life of a single person. Lea, thus,
left their conjugal abode and never returned.
Neither did she communicate with the
respondent after leaving the conjugal abode
because of her resentment to the
chastisement she received from him barely a
month after their marriage. What is so
worrisome is that, the respondent failed to
make inquiries from his parents-in-law
regarding Lea's whereabouts before filing his
petition in the RTC. It could have enhanced
the credibility of the respondent had he made
inquiries from his parents-in-law about Lea's
whereabouts considering that Lea's father was
the owner of Radio DYMS.
The respondent did report and seek the help
of the local police authorities and the NBI to
locate Lea, but it was only an afterthought. He
did so only after the OSG filed its notice to
dismiss his petition in the RTC. 2
Similarly, in Republic v. Nolasco, 3 this Court
ruled in favor of the Republic and agreed with
the position of the OSG that the respondent
therein failed to establish that he had a well-
founded belief that his absent wife was dead.
In this case, Nolasco, who was a seaman, went
back home to Antique upon learning that his
wife left their conjugal abode. He testified that
no one among their friends could tell him
where his wife was. He claimed that his efforts
to look for her whenever his ship docked in
England proved fruitless and also stated that
all the letters he had sent to his missing
spouse at an address in Liverpool, England,
the address of the bar where they met, were
all returned to him. This Court believed that
Nolasco failed to conduct a search for his
missing wife with such diligence as to give rise
to a "well-founded belief" that she is dead. In
the said case, it was held:
In the case at bar, the Court considers that
the investigation allegedly conducted by
respondent in his attempt to ascertain Janet
Monica Parker's whereabouts is too sketchy to
form the basis of a reasonable or well-founded
belief that she was already dead. When he
arrived in San Jose, Antique after learning of
Janet Monica's departure, instead of seeking
the help of local authorities or of the British
Embassy, he secured another seaman's
contract and went to London, a vast city of
many millions of inhabitants, to look for her
there.
"Q: After arriving here in San Jose,
Antique, did you exert efforts to inquire the
whereabouts of your wife:
A: Yes, Sir.
Court:
How did you do that?
A: I secured another contract with the
ship and we had a trip to London and I went
to London to look for her I could not find her
(sic)." SACEca
Respondent's testimony, however, showed that
he confused London for Liverpool and this
casts doubt on his supposed efforts to locate
his wife in England. The Court of Appeals'
justification of the mistake, to wit:
". . . Well, while the cognoscente (sic) would
readily know the geographical difference
between London and Liverpool, for a humble
seaman like Gregorio the two places could
mean one place in England, the port where
his ship docked and where he found Janet.
Our own provincial folks, every time they leave
home to visit relatives in Pasay City, Kalookan
City, or Paraaque, would announce to friends
and relatives, 'We're going to Manila.' This
apparent error in naming of places of
destination does not appear to be fatal,"
is not well taken. There is no analogy between
Manila and its neighboring cities, on one
hand, and London and Liverpool, on the other,
which, as pointed out by the Solicitor-General,
are around three hundred fifty (350)
kilometers apart. We do not consider that
walking into a major city like Liverpool or
London with a simple hope of somehow
bumping into one particular person there
which is in effect what Nolasco says he did
can be regarded as a reasonably diligent
search.
The Court also views respondent's claim that
Janet Monica declined to give any information
as to her personal background even after she
had married respondent too convenient an
excuse to justify his failure to locate her. The
same can be said of the loss of the alleged
letters respondent had sent to his wife which
respondent claims were all returned to him.
Respondent said he had lost these returned
letters, under unspecified circumstances.
aSTcCE
Neither can this Court give much credence to
respondent's bare assertion that he had
inquired from their friends of her
whereabouts, considering that respondent did
not identify those friends in his testimony. The
Court of Appeals ruled that since the
prosecutor failed to rebut this evidence during
trial, it is good evidence. But this kind of
evidence cannot, by its nature, be rebutted. In
any case, admissibility is not synonymous
with credibility. As noted before, there are
serious doubts to respondent's credibility.
Moreover, even if admitted as evidence, said
testimony merely tended to show that the
missing spouse had chosen not to
communicate with their common
acquaintances, and not that she was dead.
Also, in Republic v. Granada, 4 while the
Court denied the petition of the OSG on
procedural grounds and consequently upheld
the declaration of presumptive death of the
missing husband, this Court agreed with the
OSG's assertion that the respondent therein
was not diligent in her search for her husband
when she, just like Maria Fe in this case,
merely inquired about the whereabouts of his
spouse from the latter's relatives and failed to
seek information and assistance from
government agencies and the mass media. The
Court held:
Applying the foregoing standards to the
present case, petitioner points out that
respondent Yolanda did not initiate a diligent
search to locate her absent husband. While
her brother Diosdado Cadacio testified to
having inquired about the whereabouts of
Cyrus from the latter's relatives, these
relatives were not presented to corroborate
Diosdado's testimony. In short, respondent
was allegedly not diligent in her search for her
husband. Petitioner argues that if she were,
she would have sought information from the
Taiwanese Consular Office or assistance from
other government agencies in Taiwan or the
Philippines. She could have also utilized mass
media for this end, but she did not. Worse,
she failed to explain these omissions.
AIcaDC
The Republic's arguments are well-taken.
Nevertheless, we are constrained to deny the
Petition.
The RTC ruling on the issue of whether
respondent was able to prove her "well-
founded belief" that her absent spouse was
already dead prior to her filing of the Petition
to declare him presumptively dead is already
final and can no longer be modified or
reversed. Indeed, "[n]othing is more settled in
law than that when a judgment becomes final
and executory, it becomes immutable and
unalterable. The same may no longer be
modified in any respect, even if the
modification is meant to correct what is
perceived to be an erroneous conclusion of
fact or law." 5
Were it not for the finality of the RTC ruling,
the declaration of presumptive death should
have been recalled and set aside for utter lack
of factual basis.
It is the policy of the State to protect and
preserve marriage. Courts should be ever
mindful of this policy and, hence, must
exercise prudence in evaluating petitions for
declaration of presumptive death of an absent
spouse. Otherwise, spouses may easily
circumvent the policy of the laws on marriage
by simply agreeing that one of them leave the
conjugal abode and never return again.
LEONEN, J., dissenting:
"Love cannot endure indifference. It needs to
be wanted. Like a lamp it needs to be fed out
of the oil of another's heart or its flames burn
low."
Henry Ward Beecher
I dissent. TEHIaA
A wife, abandoned with impunity, also
deserves to be happy.
The Case
Through this Rule 45 petition for review on
certiorari, the Office of the Solicitor General
for the Republic of the Philippines prays that
the decision 1 of the Court of Appeals be
reversed and set aside and that a new
judgment be entered annulling and setting
aside the order 2 of the Regional Trial Court,
Branch 25, Koronadal City, South Cotabato.
On May 21, 2002, Maria Fe Espinosa Cantor
filed a petition 3 for the declaration of
presumptive death of her husband, Jerry F.
Cantor. 4 She claimed that she had a well-
founded belief that her husband was already
dead since four (4) years had lapsed without
Jerry making his presence known to her.
CASIEa
Trial began after the Regional Trial Court
found Maria Fe's petition sufficient in form
and substance.
According to their Certificate of Marriage, 5
Maria Fe and Jerry were married on
September 20, 1997 at the Christ the King
Cathedral in Koronadal City, South Cotabato.
They lived together in their conjugal dwelling
in Agan Homes, Koronadal City, South
Cotabato. 6
In her petition, Maria Fe alleges that sometime
in January 1998, she and Jerry had a violent
quarrel in their house. During the trial, she
admitted that the quarrel had to do with her
not being able to reach her "climax" whenever
she would have sexual intercourse with Jerry.
Maria Fe emphasized that she even suggested
to him that he consult a doctor, but Jerry
brushed aside this suggestion. She also said
that during the quarrel, Jerry had expressed
animosity toward her father, saying "I will not
respect that old man outside." 7
Jerry left after their quarrel. 8 Since then,
Maria Fe had not seen or heard from him. On
May 21, 2002 after more than four (4) years
without word from Jerry, Maria Fe filed her
petition with the Regional Trial Court.
Maria Fe exerted "earnest efforts . . . to locate
the whereabouts or actual address of [Jerry]."
9 She inquired from her mother-in-law,
brothers-in-law, sisters-in-law, neighbors, and
friends, but no one could tell her where Jerry
had gone. 10 Whenever she went to a hospital,
she would check the patients' directory,
hoping to find Jerry. 11
On December 15, 2006, the Regional Trial
Court issued an order granting her petition
declaring Jerry presumptively dead. The
Regional Trial Court agreed that she had a
well-founded belief that Jerry was dead. It
declared that Jerry had not been heard from
and his fate uncertain and whereabouts
unknown for more than four (4) years at the
time Maria Fe's petition was filed. When the
Regional Trial Court issued its order, Jerry
had been absent for eight (8) years. TEDAHI
The fallo of the Regional Trial Court's order 12
reads:
WHEREFORE, the Court hereby declares, as it
hereby declared [sic] that respondent Jerry F.
Cantor is presumptively dead pursuant to
Article 41 of the Family Code of the
Philippines without prejudice to the effect of
the reappearance of the absent spouse Jerry
F. Cantor. 13
Not satisfied with the Regional Trial Court's
order, the Republic of the Philippines through
the Office of the Solicitor General filed a
petition for certiorari with the Court of
Appeals.
In a decision dated August 27, 2008, the
Court of Appeals affirmed in toto the Regional
Trial Court's order dated December 15, 2006.
The Court of Appeals held that there was no
grave abuse of discretion on the part of the
Regional Trial Court in having declared Jerry
presumptively dead. The Court of Appeals also
emphasized "that by express mandate of
Article 247 of the Family Code, all judgments
rendered in summary judicial proceedings in
Family Law are 'immediately final and
executory' upon notice to the parties; hence,
no longer appealable." 14
Still dissatisfied with the ruling of the Court of
Appeals, the Office of the Solicitor General
filed the present petition for review on
certiorari under Rule 45 of the Rules of Civil
Procedure.
The Office of the Solicitor General argued that
a petition for certiorari lies to challenge
decisions, judgments or final orders of trial
courts in petitions for the declaration of
presumptive death of a missing or absent
spouse. The Office of the Solicitor General
agreed that under Article 247 of the Family
Code, decisions and final orders of trial courts
in petitions for the declaration of the
presumptive death of a missing or absent
spouse are immediately final and executory,
and therefore, cannot be appealed. However,
the Office of the Solicitor General disagreed
with the assertion that judgments or decisions
in these cases can no longer be reviewed by
the higher courts. It maintained that even
though judgments or final orders in summary
judicial proceedings such as presumptive
death cases are no longer appealable, they
may still be reviewed by the Court of Appeals,
and, ultimately, by this court. 15
The Office of the Solicitor General pointed out
that "appeal" and "certiorari" are not
synonymous remedies. By filing a petition for
certiorari before the Court of Appeals, it could
not be considered to have "appealed" the
challenged order of the Regional Trial Court. A
petition for certiorari under Rule 65 is not, in
its strict sense, an appeal. It is an original
action and a mode of review under which the
Court of Appeals may re-examine the
challenged order to determine whether it was
rendered in accordance with law and
established jurisprudence. Hence, judgments
of trial courts in presumptive death cases are
not immutable because such decisions may be
reviewed by higher courts. The only possible
recourse of a losing party in summary judicial
proceedings is a petition for certiorari under
Rule 65. 16 HScAEC
The Office of the Solicitor General likewise
argued that Maria Fe did not have a well-
founded belief that Jerry was dead. It claimed
that she failed to conduct a diligent search for
her missing husband. Its theory was that
Jerry consciously chose not to return to their
conjugal home and that he chose not to
communicate with Maria Fe. The Office of the
Solicitor General claimed that it was possible
that Jerry did not want to be found and that
he chose to live in a place where even his
family and friends could not reach him. From
the perspective of the Office of the Solicitor
General, it was Jerry's choice to disappear;
thus, in all likelihood, he was not dead.
The Office of the Solicitor General claimed that
Article 41 of the Family Code requires more
than the absence of the missing spouse for
him or her to be declared presumptively dead.
There must be events, circumstances, and
reasons sufficient in themselves to at least
support the proposition that the absentee
spouse is already dead. Absence per se is not
enough.
The Office of the Solicitor General capitalized
on the failure of Maria Fe to give the names of
relatives and friends she had approached
when she testified. It asserted that she failed
to present them at the witness stand. 17
Moreover, the Office of the Solicitor General
assailed the description of her husband as
"not really healthy" when he left the conjugal
dwelling. It characterized this description as
being "too vague to even support the
speculation that Jerry is already dead." 18
On June 26, 2009, Maria Fe filed her
comment on the Office of the Solicitor
General's petition. She argued that there was
no factual or legal basis for the Office of the
Solicitor General to seek a reversal of the
Court of Appeal's decision. She asserted that
the declaration of Jerry's death was in order
as it was in accord or consistent with
established facts, as well as with law and
jurisprudence on the matter. aESTAI
This court is asked to decide on the following
issues:
1. Whether certiorari lies to challenge
decisions, judgments or final orders of trial
courts in petitions for the declaration of
presumptive death of a missing person or
absent spouse; and
2. Whether Maria Fe has a well-founded
belief that Jerry is already dead.
Certiorari lies as a remedy to
annul the judgment of a trial
court in summary
proceedings for the
declaration of presumptive
death of an absent spouse
I agree that certiorari lies as a remedy to
annul a judgment in proceedings for the
declaration of presumptive death of an absent
spouse where grave abuse of discretion
amounting to lack or excess of jurisdiction on
the part of the Regional Trial Court is clearly
and convincingly shown.
A petition for the declaration of presumptive
death of an absent spouse for the purpose of
contracting a subsequent marriage is a
summary proceeding. Article 41 of the Family
Code is clear on this point:
Art. 41. A marriage contracted by any
person during subsistence of a previous
marriage shall be null and void, unless before
the celebration of the subsequent marriage,
the prior spouse had been absent for four
consecutive years and the spouse present has
a well-founded belief that the absent spouse
was already dead. In case of disappearance
where there is danger of death under the
circumstances set forth in the provisions of
Article 391 of the Civil Code, an absence of
only two years shall be sufficient.
For the purpose of contracting the subsequent
marriage under the preceding paragraph the
spouse present must institute a summary
proceeding as provided in this Code for the
declaration of presumptive death of the
absentee, without prejudice to the effect of
reappearance of the absent spouse. SIaHDA
Articles 238, 247, and 252 of Title XI of the
Family Code (Summary Judicial Proceedings
in the Family Law) provide:
Art. 238. Until modified by the Supreme
Court, the procedural rules provided for in
this Title shall apply as regards separation in
fact between husband and wife, abandonment
by one of the other, and incidents involving
parental authority.
Art. 247. The judgment of the court shall
be immediately final and executory.
Art. 252. The rules in Chapter 2 hereof
shall also govern summary proceedings under
this Chapter insofar as they are applicable. (n)
From these provisions, it is clear that a
petition for the declaration of presumptive
death of an absent spouse is a summary
proceeding; more so, judgments of a trial
court relating to such petitions shall be
considered immediately final and executory.
However, while a trial court's judgment
relating to a petition for the declaration of
presumptive death of an absent spouse is
considered immediately final and executory,
the Office of the Solicitor General is not
entirely without remedy to assail the propriety
of a trial court's judgment. Where the
judgment is attended by grave abuse of
discretion amounting to lack or excess of
jurisdiction, the Office of the Solicitor General
may file with the Court of Appeals a petition
for certiorari under Rule 65 and have the
judgment annulled. Should the Court of
Appeals still render an adverse decision, the
Office of the Solicitor General may then file a
petition for review on certiorari under Rule 45
with this court. This is what the Office of the
Solicitor General did in this case. DHATcE
Any doubt on this matter was settled in
Republic v. Granada: 19
At any rate, four years after Jomoc, this Court
settled the rule regarding appeal of judgments
rendered in summary proceedings under the
Family Code when it ruled in Republic v.
Tango:
"This case presents an opportunity for us to
settle the rule on appeal of judgments
rendered in summary proceedings under the
Family Code and accordingly, refine our
previous decisions thereon.
Article 238 of the Family Code, under Title XI:
SUMMARY JUDICIAL PROCEEDINGS IN THE
FAMILY LAW, establishes the rules that
govern summary court proceedings in the
Family Code:
ART. 238. Until modified by the Supreme
Court, the procedural rules in this Title shall
apply in all cases provided for in this Code
requiring summary court proceedings. Such
cases shall be decided in an expeditious
manner without regard to technical rules.
In turn, Article 253 of the Family Code
specifies the cases covered by the rules in
chapters two and three of the same title. It
states:
ART. 253. The foregoing rules in Chapters 2
and 3 hereof shall likewise govern summary
proceedings filed under Articles 41, 51, 69,
73, 96, 124 and 217, insofar as they are
applicable. (Emphasis supplied.)
In plain text, Article 247 in Chapter 2 of the
same title reads:
ART. 247. The judgment of the court shall
be immediately final and executory.
By express provision of law, the judgment of
the court in a summary proceeding shall be
immediately final and executory. As a matter
of course, it follows that no appeal can be had
of the trial court's judgment in a summary
proceeding for the declaration of presumptive
death of an absent spouse under Article 41 of
the Family Code. It goes without saying,
however, that an aggrieved party may file a
petition for certiorari to question abuse of
discretion amounting to lack of jurisdiction.
Such petition should be filed in the Court of
Appeals in accordance with the Doctrine of
Hierarchy of Courts. To be sure, even if the
Court's original jurisdiction to issue a writ of
certiorari is concurrent with the RTCs and the
Court of Appeals in certain cases, such
concurrence does not sanction an unrestricted
freedom of choice of court forum. From the
decision of the Court of Appeals, the losing
party may then file a petition for review on
certiorari under Rule 45 of the Rules of Court
with the Supreme Court. This is because the
errors which the court may commit in the
exercise of jurisdiction are merely errors of
judgment which are the proper subject of an
appeal."
In sum, under Article 41 of the Family Code,
the losing party in a summary proceeding for
the declaration of presumptive death may file
a petition for certiorari with the CA on the
ground that, in rendering judgment thereon,
the trial court committed grave abuse of
discretion amounting to lack of jurisdiction.
From the decision of the CA, the aggrieved
party may elevate the matter to this Court via
a petition for review on certiorari under Rule
45 of the Rules of Court. 20
Strict standards should not be
imposed upon the present
spouse in evaluating his or
her efforts to search for the
absent spouse
However, I disagree with the position that
"well-founded belief" should be interpreted as
an imposition of stringent standards in
evaluating the efforts and inquiries made by
the present spouse in ascertaining the absent
spouse's status and whereabouts. "Well-
founded belief" should be based on the
circumstances of each case. It should not be
based on a prior limited enumeration of what
acts indicate a "well-founded belief."
In cases for declaration of presumptive death
under Article 41 of the Family Code, we
cannot ask the impossible from a spouse who
was abandoned. In interpreting this provision,
we must keep in mind that both spouses are
under many obligations in the Family Code,
21 all of which require their presence.
aASDTE
Article 41 of the Family Code provides:
Art. 41. A marriage contracted by any
person during subsistence of a previous
marriage shall be null and void, unless before
the celebration of the subsequent marriage,
the prior spouse had been absent for four
consecutive years and the spouse present has
a well-founded belief that the absent spouse
was already dead. In case of disappearance
where there is danger of death under the
circumstances set forth in the provisions of
Article 391 of the Civil Code, an absence of
only two years shall be sufficient.
For the purpose of contracting the subsequent
marriage under the preceding paragraph the
spouse present must institute a summary
proceeding as provided in this Code for the
declaration of presumptive death of the
absentee, without prejudice to the effect of
reappearance of the absent spouse.
From the text of Article 41, there are two
substantive requirements and two procedural
requirements for a spouse to be declared
presumptively dead for the purpose of
remarriage.
The two substantive requirements are the
following: first, the absent spouse has been
missing for four (4) consecutive years or two
(2) consecutive years if the disappearance
occurred under circumstances where there is
danger of death per Article 391 of the Civil
Code; second, the present spouse has a well-
founded belief that the absent spouse is dead.
The two procedural requirements are the
following: first, the present spouse files a
summary proceeding for the declaration of
presumptive death of the absent spouse;
second, there is the underlying intent of the
present spouse to remarry.
In this case, it is necessary to interpret what
is meant by "well-founded belief." DCHaTc
We said in Republic of the Philippines v. Court
of Appeals and Alegro: 22
The spouse present is, thus, burdened to
prove that his spouse has been absent and
that he has a well-founded belief that the
absent spouse is already dead before the
present spouse may contract a subsequent
marriage. The law does not define what is
meant by a well-grounded belief. Cuello Callon
writes that "es menester que su creencia sea
firme se funde en motivos racionales."
Belief is a state of the mind or condition
prompting the doing of an overt act. It may be
proved by direct evidence or circumstantial
evidence which may tend, even in a slight
degree, to elucidate the inquiry or assist to a
determination probably founded in truth. Any
fact or circumstance relating to the character,
habits, conditions, attachments, prosperity
and objects of life which usually control the
conduct of men, and are the motives of their
actions, was, so far as it tends to explain or
characterize their disappearance or throw
light on their intentions, competence evidence
on the ultimate question of his death.
The belief of the present spouse must be the
result of proper and honest to goodness
inquiries and efforts to ascertain the
whereabouts of the absent spouse and
whether the absent spouse is still alive or is
already dead. Whether or not the spouse
present acted on a well-founded belief of death
of the absent spouse depends upon the
inquiries to be drawn from a great many
circumstances occurring before and after the
disappearance of the absent spouse and the
nature and extent of the inquiries made by
present spouse. 23
Applying its construction of what constitutes a
"well-founded belief" in Republic v. Nolasco,
24 this court reversed the Regional Trial Court
and Court of Appeals decisions which declared
an absent spouse presumptively dead as the
present spouse was deemed to have "failed to
conduct a search for his missing wife with
such diligence as to give rise to a 'well-
founded belief' that she is dead." 25 In 2005,
Republic of the Philippines v. Court of Appeals
and Alegro, 26 which relied heavily on
Nolasco, likewise held that "the respondent
failed to prove that he had a well-founded
belief . . . that his spouse . . . was already
dead." 27 In the 2012 case of Republic v.
Granada, 28 while this court denied the Office
of the Solicitor General's petition on
procedural grounds, this court nevertheless
favorably considered the Office of the Solicitor
General's assertions that "respondent was
allegedly not diligent in her search for her
husband." 29
Belief is a state of mind and can only be
ascertained in reference to a person's overt
acts. In making such an evaluation, one must
evaluate a case on the basis of its own merits
cognizant of its unique facts, context, and
other nuances rather than be compelled to
satisfy a pre-conceived determination of what
acts are sufficiently indicative of the belief
being ascertained.
A belief is well-founded when a person has
reasonable basis for holding on to such belief.
It is to say that such belief is not arbitrary and
whimsical. Such belief must, thus, be
evaluated on the basic and uncomplicated
standard of rationality. HAaDTI
In declaring a person presumptively dead, a
court is called upon to sustain a presumption.
It is not called upon to conclude on verity or to
establish actuality. In so doing, a court infers
despite an acknowledged uncertainty. Thus, to
insist on such demanding and extracting
evidence as to practically require enough proof
of a well-founded belief, as the Office of the
Solicitor General suggests, is to insist on an
inordinate, intemperate, and non-rational
standard.
Maria Fe testified in court that months after
their wedding, she and her husband had a
violent quarrel, and he had left after the fight.
She noted the two (2) causes of the quarrel:
first, she could not "climax" every time they
would have sexual intercourse; second, Jerry
disrespected her father every time he would
visit them. She likewise stated that she went
to see her mother-in-law, brothers-in-law,
sisters-in-law, neighbors, and friends to ask
about her husband's whereabouts. She said
that every time she would go to a hospital, she
would check its directory to find out anything
about her husband, but her efforts proved
futile.
The Office of the Solicitor General faulted her
for "fall[ing] short of the degree of diligence
required for the search of a missing spouse."
30 In effect, the Office of the Solicitor General
insinuated that she should have exerted more
painstaking efforts to ascertain her husband's
whereabouts.
The majority agrees with the Office of the
Solicitor General. The majority views Maria
Fe's efforts as a mere "passive search" that is
short of the diligent search required to form a
well-founded belief that her husband was
already dead. 31
Maria Fe exerted the best efforts to ascertain
the location of her husband but to no avail.
She bore the indignity of being left behind.
She suffered the indifference of her husband.
Such indifference was not momentary. She
anguished through years of never hearing
from him. The absence of a few days between
spouses may be tolerable, required by
necessity. The absence of months may test
one's patience. But the absence of years of
someone who made the solemn promise to
stand by his partner in sickness and in
health, for richer or poorer, is intolerable. The
waiting is as painful to the spirit as the
endless search for a person that probably did
not want to be found or could no longer be
found.
To require more from Maria Fe who did what
she could, given the resources available to
her, is to assert the oppressiveness of our
laws. It is to tell her that she has to suffer
from causes which she cannot understand for
more years to come. It should be in the public
interest to assume that Jerry, or any husband
for that matter, as a matter of moral and legal
obligation, would get in touch with Maria Fe
even if only to tell her that he is alive.
It behooves this court not to have pre-
conceived expectations of a standard
operating procedure for spouses who are
abandoned. Instead, it should, with the public
interest in mind and human sensitivity at
heart, understand the domestic situation.
IEDHAT
A review of the cases that the Office of the
Solicitor General cited reveals this same
conclusion.
Republic of the Philippines v. Court of Appeals
and Alegro 32 acknowledges that "testimonial
evidence may suffice to prove the well-founded
belief of the present spouse that the absent
spouse is already dead . . . ." 33
In another case cited by the Office of the
Solicitor General, Republic v. Nolasco, 34
which similarly considered the matter of
whether respondent therein was able to
establish a well-founded belief of the death of
his absent spouse, this court cited the 1913
case of United States v. Biasbas, 35 finding it
to be "instructive as to degree [sic] of diligence
required in searching for a missing spouse."
36 In Biasbas, defendant Biasbas' defense of a
good faith belief that his wife was already dead
was not sustained, and his conviction for
bigamy was affirmed. Speaking on Biasbas'
lack of due diligence, this court said:
While the defendant testified that he had
made inquiries concerning the whereabouts of
his wife, he fails to state of whom he made
such inquiries. He did not even write to the
parents of his first wife, who lived in the
Province of Pampanga, for the purpose of
securing information concerning her or her
whereabouts. He admits that he had a
suspicion only that his first wife was dead. He
admits that the only basis of his suspicion
was the fact that she had been absent. 37
(Emphasis supplied)
What was involved in Biasbas was a mere
suspicion totally bereft of any other rational
basis. Moreover, the defendant himself
admitted that all he had was a mere
suspicion.
What is involved in this case is not a mere
suspicion. In Biasbas, the defendant could be
faulted for failing to even write the parents of
his wife. Here, Maria Fe testified to her having
visited and personally inquired with her
mother-in-law, brothers-in-law, sisters-in-law,
neighbors, and friends. Moreover, Maria Fe
repeatedly checked hospital entries to check if
her husband was admitted or otherwise was
pronounced deceased.
While it may be true that it would have been
ideal for Maria Fe to have exerted more
exceptional efforts in locating her husband,
the hypothetical issue of what else she could
have done or ought to have done should not
diminish the import of her efforts. It is for
Maria Fe to resort to the courses of action
permitted to her given her stature and means.
We are called upon to make an appreciation of
the reasonable, not of the exceptional. In
adjudicating this case, this court must ground
itself on what is real, not dwell on a projected
ideal.
In the case of Maria Fe, she did what, in her
circumstances, are to be considered as an
efficient search. Again, she got in touch with
her husband's relatives and searched
hospitals. More importantly, she waited for
more than four (4) long years for her husband
to get in touch with her.
Also, the insistence on the need for Maria Fe
to ascertain the whereabouts of her deserting
husband undermines the significance and
weight of her husband's own duty. In the
normal course of things, a spouse is well in a
position to expect that the other spouse will
return to their common dwelling. Article 68 of
the Family Code obliges the husband and the
wife "to live together, observe mutual love,
respect and fidelity, and render mutual help
and support."
The opinions of a recognized authority in civil
law, Arturo M. Tolentino, are particularly
enlightening:
Meaning of "Absent" Spouse. The provisions
of this article are of American origin, and must
be construed in the light of American
jurisprudence. An identical provision (except
for the period) exists in the California civil
code (section 61); California jurisprudence
should, therefore, prove enlightening. It has
been held in that jurisdiction that, as respects
the validity of a husband's subsequent
marriage, a presumption as to the death of his
first wife cannot be predicated upon an
absence resulting from his leaving or deserting
her, as it is his duty to keep her advised as to
his whereabouts. The spouse who has been
left or deserted is the one who is considered as
the "spouse present"; such spouse is not
required to ascertain the whereabouts of the
deserting spouse, and after the required
number of years of absence of the latter, the
former may validly remarry. 38 (Underscoring
supplied)
Precisely, it is a deserting spouse's failure to
comply with what is reasonably expected of
him or her and to fulfill the responsibilities
that are all but normal to a spouse which
makes reasonable (i.e., well-founded) the belief
that should he or she fail to manifest his or
her presence within a statutorily determined
reasonable period, he or she must have been
deceased. The law is of the confidence that
spouses will in fact "live together, observe
mutual love, respect and fidelity, and render
mutual help and support" 39 such that it is
not the business of the law to assume any
other circumstance than that a spouse is
deceased in case he or she becomes absent.
It is unfortunate that the majority fails to
appreciate Maria Fe's predicament and
instead places upon her the burden to prove
good faith in her painstaking efforts.
To be present in any human relationship
especially that of marriage is a complex affair.
There are interests to be compromised for
each other, temperaments to be adjusted,
evolving personalities to be understood in the
crucible of common experiences. The moments
of bliss are paid for by the many moments of
inevitable discomfort as couples adjust their
many standpoints, attitudes, and values for
each other. It is a journey that takes time and
in that time, presence.
This case does not present that kind of
complexity. It is simple enough. Maria Fe was
left behind. She looked for Jerry, in good faith.
Jerry could not be found. He did not leave
word. He did not make the slightest effort to
get in touch with Maria Fe. His absence did
not make the difficult compromises possible.
There were no adjustments in their
temperaments, no opportunities to further
understand each other, no journey together.
His absence was palpable: not moments, not
days, not months, but years. Maria Fe
deserves more. The law, in Article 41, allows
her succor. DIESHT
Given the circumstances, Maria Fe acted
adequately. Her actions were sufficient to form
the well-founded belief that her husband
passed away. It was proper that he be
declared presumptively dead. In the far
possibility that he reappears and is not dead,
the law provides remedies for him. In the
meantime, the Court of Appeals committed no
reversible error in affirming the Regional Trial
Court's declaration.
WHEREFORE, I vote to DENY the petition.
SECOND DIVISION
[G.R. No. 187061. October 8, 2014.]
CELERINA J. SANTOS, petitioner, vs.
RICARDO T. SANTOS, respondent.
DECISION
LEONEN, J p:
The proper remedy for a judicial declaration of
presumptive death obtained by extrinsic fraud
is an action to annul the judgment. An
affidavit of reappearance is not the proper
remedy when the person declared
presumptively dead has never been absent.
SaCIDT
This is a petition for review on certiorari filed
by Celerina J. Santos, assailing the Court of
Appeals' resolutions dated November 28, 2008
and March 5, 2009. The Court of Appeals
dismissed the petition for the annulment of
the trial court's judgment declaring her
presumptively dead.
On July 27, 2007, the Regional Trial Court of
Tarlac City declared petitioner Celerina J.
Santos (Celerina) presumptively dead after her
husband, respondent Ricardo T. Santos
(Ricardo), had filed a petition for declaration of
absence or presumptive death for the purpose
of remarriage on June 15, 2007. 1 Ricardo
remarried on September 17, 2008. 2
In his petition for declaration of absence or
presumptive death, Ricardo alleged that he
and Celerina rented an apartment somewhere
in San Juan, Metro Manila, after they had
gotten married on June 18, 1980. 3 After a
year, they moved to Tarlac City. They were
engaged in the buy and sell business. 4
Ricardo claimed that their business did not
prosper. 5 As a result, Celerina convinced him
to allow her to work as a domestic helper in
Hong Kong. 6 Ricardo initially refused but
because of Celerina's insistence, he allowed
her to work abroad. 7 She allegedly applied in
an employment agency in Ermita, Manila, in
February 1995. She left Tarlac two months
after and was never heard from again. 8
caCTHI
Ricardo further alleged that he exerted efforts
to locate Celerina. 9 He went to Celerina's
parents in Cubao, Quezon City, but they, too,
did not know their daughter's whereabouts.
10 He also inquired about her from other
relatives and friends, but no one gave him any
information. 11
Ricardo claimed that it was almost 12 years
from the date of his Regional Trial Court
petition since Celerina left. He believed that
she had passed away. 12
Celerina claimed that she learned about
Ricardo's petition only sometime in October
2008 when she could no longer avail the
remedies of new trial, appeal, petition for
relief, or other appropriate remedies. 13
acIASE
On November 17, 2008, Celerina filed a
petition for annulment of judgment 14 before
the Court of Appeals on the grounds of
extrinsic fraud and lack of jurisdiction. She
argued that she was deprived her day in court
when Ricardo, despite his knowledge of her
true residence, misrepresented to the court
that she was a resident of Tarlac City. 15
According to Celerina, her true residence was
in Neptune Extension, Congressional Avenue,
Quezon City. 16 This residence had been her
and Ricardo's conjugal dwelling since 1989
until Ricardo left in May 2008. 17 As a result
of Ricardo's misrepresentation, she was
deprived of any notice of and opportunity to
oppose the petition declaring her
presumptively dead. 18
Celerina claimed that she never resided in
Tarlac. 19 She also never left and worked as a
domestic helper abroad. 20 Neither did she go
to an employment agency in February 1995.
21 She also claimed that it was not true that
she had been absent for 12 years. Ricardo was
aware that she never left their conjugal
dwelling in Quezon City. 22 It was he who left
the conjugal dwelling in May 2008 to cohabit
with another woman. 23 Celerina referred to a
joint affidavit executed by their children to
support her contention that Ricardo made
false allegations in his petition. 24
Celerina also argued that the court did not
acquire jurisdiction over Ricardo's petition
because it had never been published in a
newspaper. 25 She added that the Office of
the Solicitor General and the Provincial
Prosecutor's Office were not furnished copies
of Ricardo's petition. 26
The Court of Appeals issued the resolution
dated November 28, 2008, dismissing
Celerina's petition for annulment of judgment
for being a wrong mode of remedy. 27
According to the Court of Appeals, the proper
remedy was to file a sworn statement before
the civil registry, declaring her reappearance
in accordance with Article 42 of the Family
Code. 28 cADSCT
Celerina filed a motion for reconsideration of
the Court of Appeals' resolution dated
November 28, 2008. 29 The Court of Appeals
denied the motion for reconsideration in the
resolution dated March 5, 2009. 30
Hence, this petition was filed.
The issue for resolution is whether the Court
of Appeals erred in dismissing Celerina's
petition for annulment of judgment for being a
wrong remedy for a fraudulently obtained
judgment declaring presumptive death.
Celerina argued that filing an affidavit of
reappearance under Article 42 of the Family
Code is appropriate only when the spouse is
actually absent and the spouse seeking the
declaration of presumptive death actually has
a well-founded belief of the spouse's death. 31
She added that it would be inappropriate to
file an affidavit of reappearance if she did not
disappear in the first place. 32 She insisted
that an action for annulment of judgment is
proper when the declaration of presumptive
death is obtained fraudulently. 33
Celerina further argued that filing an affidavit
of reappearance under Article 42 of the Family
Code would not be a sufficient remedy
because it would not nullify the legal effects of
the judgment declaring her presumptive
death. 34
In Ricardo's comment, 35 he argued that a
petition for annulment of judgment is not the
proper remedy because it cannot be availed
when there are other remedies available.
Celerina could always file an affidavit of
reappearance to terminate the subsequent
marriage. Ricardo iterated the Court of
Appeals' ruling that the remedy afforded to
Celerina under Article 42 of the Family Code
is the appropriate remedy. DCcSHE
The petition is meritorious.
Annulment of judgment is the remedy when
the Regional Trial Court's judgment, order, or
resolution has become final, and the
"remedies of new trial, appeal, petition for
relief (or other appropriate remedies) are no
longer available through no fault of the
petitioner." 36
The grounds for annulment of judgment are
extrinsic fraud and lack of jurisdiction. 37
This court defined extrinsic fraud in
Stilianopulos v. City of Legaspi: 38
For fraud to become a basis for annulment of
judgment, it has to be extrinsic or actual. It is
intrinsic when the fraudulent acts pertain to
an issue involved in the original action or
where the acts constituting the fraud were or
could have been litigated. It is extrinsic or
collateral when a litigant commits acts outside
of the trial which prevents a party from having
a real contest, or from presenting all of his
case, such that there is no fair submission of
the controversy. 39 (Emphasis supplied)
Celerina alleged in her petition for annulment
of judgment that there was fraud when
Ricardo deliberately made false allegations in
the court with respect to her residence. 40
Ricardo also falsely claimed that she was
absent for 12 years. There was also no
publication of the notice of hearing of
Ricardo's petition in a newspaper of general
circulation. 41 Celerina claimed that because
of these, she was deprived of notice and
opportunity to oppose Ricardo's petition to
declare her presumptively dead. 42 HTaIAC
Celerina alleged that all the facts supporting
Ricardo's petition for declaration of
presumptive death were false. 43 Celerina
further claimed that the court did not acquire
jurisdiction because the Office of the Solicitor
General and the Provincial Prosecutor's Office
were not given copies of Ricardo's petition. 44
These are allegations of extrinsic fraud and
lack of jurisdiction. Celerina alleged in her
petition with the Court of Appeals sufficient
ground/s for annulment of judgment.
Celerina filed her petition for annulment of
judgment 45 on November 17, 2008. This was
less than two years from the July 27, 2007
decision declaring her presumptively dead and
about a month from her discovery of the
decision in October 2008. The petition was,
therefore, filed within the four-year period
allowed by law in case of extrinsic fraud, and
before the action is barred by laches, which is
the period allowed in case of lack of
jurisdiction. 46
There was also no other sufficient remedy
available to Celerina at the time of her
discovery of the fraud perpetrated on her.
The choice of remedy is important because
remedies carry with them certain admissions,
presumptions, and conditions.
The Family Code provides that it is the proof
of absence of a spouse for four consecutive
years, coupled with a well-founded belief by
the present spouse that the absent spouse is
already dead, that constitutes a justification
for a second marriage during the subsistence
of another marriage. 47 ISAcHD
The Family Code also provides that the second
marriage is in danger of being terminated by
the presumptively dead spouse when he or
she reappears. Thus:
Article 42. The subsequent marriage
referred to in the preceding Article shall be
automatically terminated by the recording of
the affidavit of reappearance of the absent
spouse, unless there is a judgment annulling
the previous marriage or declaring it void ab
initio.
A sworn statement of the fact and
circumstances of reappearance shall be
recorded in the civil registry of the residence of
the parties to the subsequent marriage at the
instance of any interested person, with due
notice to the spouses of the subsequent
marriage and without prejudice to the fact of
reappearance being judicially determined in
case such fact is disputed. (Emphasis
supplied)
In other words, the Family Code provides the
presumptively dead spouse with the remedy of
terminating the subsequent marriage by mere
reappearance.
The filing of an affidavit of reappearance is an
admission on the part of the first spouse that
his or her marriage to the present spouse was
terminated when he or she was declared
absent or presumptively dead.
Moreover, a close reading of the entire Article
42 reveals that the termination of the
subsequent marriage by reappearance is
subject to several conditions: (1) the non-
existence of a judgment annulling the
previous marriage or declaring it void ab
initio; (2) recording in the civil registry of the
residence of the parties to the subsequent
marriage of the sworn statement of fact and
circumstances of reappearance; (3) due notice
to the spouses of the subsequent marriage of
the fact of reappearance; and (4) the fact of
reappearance must either be undisputed or
judicially determined. SDHacT
The existence of these conditions means that
reappearance does not always immediately
cause the subsequent marriage's termination.
Reappearance of the absent or presumptively
dead spouse will cause the termination of the
subsequent marriage only when all the
conditions enumerated in the Family Code are
present.
Hence, the subsequent marriage may still
subsist despite the absent or presumptively
dead spouse's reappearance (1) if the first
marriage has already been annulled or has
been declared a nullity; (2) if the sworn
statement of the reappearance is not recorded
in the civil registry of the subsequent spouses'
residence; (3) if there is no notice to the
subsequent spouses; or (4) if the fact of
reappearance is disputed in the proper courts
of law, and no judgment is yet rendered
confirming such fact of reappearance.
TICaEc
When subsequent marriages are contracted
after a judicial declaration of presumptive
death, a presumption arises that the first
spouse is already dead and that the second
marriage is legal. This presumption should
prevail over the continuance of the marital
relations with the first spouse. 48 The second
marriage, as with all marriages, is presumed
valid. 49 The burden of proof to show that the
first marriage was not properly dissolved rests
on the person assailing the validity of the
second marriage. 50
This court recognized the conditional nature of
reappearance as a cause for terminating the
subsequent marriage in Social Security
System v. Vda. de Bailon. 51 This court noted
52 that mere reappearance will not terminate
the subsequent marriage even if the parties to
the subsequent marriage were notified if there
was "no step . . . taken to terminate the
subsequent marriage, either by [filing an]
affidavit [of reappearance] or by court
action[.]" 53 "Since the second marriage has
been contracted because of a presumption
that the former spouse is dead, such
presumption continues inspite of the spouse's
physical reappearance, and by fiction of law,
he or she must still be regarded as legally an
absentee until the subsequent marriage is
terminated as provided by law." 54
The choice of the proper remedy is also
important for purposes of determining the
status of the second marriage and the
liabilities of the spouse who, in bad faith,
claimed that the other spouse was absent.
A second marriage is bigamous while the first
subsists. However, a bigamous subsequent
marriage may be considered valid when the
following are present: cECTaD
1) The prior spouse had been absent for
four consecutive years;
2) The spouse present has a well-founded
belief that the absent spouse was already
dead;
3) There must be a summary proceeding
for the declaration of presumptive death of the
absent spouse; and
4) There is a court declaration of
presumptive death of the absent spouse. 55
A subsequent marriage contracted in bad
faith, even if it was contracted after a court
declaration of presumptive death, lacks the
requirement of a well-founded belief 56 that
the spouse is already dead. The first marriage
will not be considered as validly terminated.
Marriages contracted prior to the valid
termination of a subsisting marriage are
generally considered bigamous and void. 57
Only a subsequent marriage contracted in
good faith is protected by law.
Therefore, the party who contracted the
subsequent marriage in bad faith is also not
immune from an action to declare his
subsequent marriage void for being bigamous.
The prohibition against marriage during the
subsistence of another marriage still applies.
58
If, as Celerina contends, Ricardo was in bad
faith when he filed his petition to declare her
presumptively dead and when he contracted
the subsequent marriage, such marriage
would be considered void for being bigamous
under Article 35 (4) of the Family Code. This is
because the circumstances lack the element of
"well-founded belief" under Article 41 of the
Family Code, which is essential for the
exception to the rule against bigamous
marriages to apply. 59
The provision on reappearance in the Family
Code as a remedy to effect the termination of
the subsequent marriage does not preclude
the spouse who was declared presumptively
dead from availing other remedies existing in
law. This court had, in fact, recognized that a
subsequent marriage may also be terminated
by filing "an action in court to prove the
reappearance of the absentee and obtain a
declaration of dissolution or termination of the
subsequent marriage." 60 STIEHc
nullity/annulment of the first marriage, and
the merits of the petition.
SO ORDERED.
Carpio, Del Castillo, Mendoza and Perlas-
Bernabe, * JJ., concur.

Celerina does not admit to have been absent.

She also seeks not merely the termination of
the subsequent marriage but also the
nullification of its effects. She contends that
reappearance is not a sufficient remedy
because it will only terminate the subsequent
marriage but not nullify the effects of the
declaration of her presumptive death and the
subsequent marriage.

Celerina is correct. Since an undisturbed

subsequent marriage under Article 42 of the
Family Code is valid until terminated, the
"children of such marriage shall be considered
legitimate, and the property relations of the
spouse[s] in such marriage will be the same as
in valid marriages." 61 If it is terminated by
mere reappearance, the children of the
subsequent marriage conceived before the
termination shall still be considered
legitimate. 62 Moreover, a judgment declaring
presumptive death is a defense against
prosecution for bigamy. 63

It is true that in most cases, an action to

declare the nullity of the subsequent marriage
may nullify the effects of the subsequent
marriage, specifically, in relation to the status
of children and the prospect of prosecuting a
respondent for bigamy.

However, "a Petition for Declaration of

Absolute Nullity of Void Marriages may be filed
solely by the husband or wife." 64 This means
that even if Celerina is a real party in interest
who stands to be benefited or injured by the
outcome of an action to nullify the second
marriage, 65 this remedy is not available to
her.

Therefore, for the purpose of not only

terminating the subsequent marriage but also
of nullifying the effects of the declaration of
presumptive death and the subsequent
marriage, mere filing of an affidavit of
reappearance would not suffice. Celerina's
choice to file an action for annulment of
judgment will, therefore, lie. CAIaHS

WHEREFORE, the case is REMANDED to the

Court of Appeals for determination of the
existence of extrinsic fraud, grounds for
THIRD DIVISION
[G.R. No. 179620. August 26, 2008.]
MANUEL G. ALMELOR, petitioner, vs. THE
HON. REGIONAL TRIAL COURT OF LAS
PIAS CITY, BRANCH 254, and LEONIDA T.
ALMELOR, respondent.
DECISION
REYES, R.T., J p:
MARRIAGE, in its totality, involves the
spouses' right to the community of their whole
lives. It likewise involves a true intertwining of
personalities. 1
This is a petition for review on certiorari of the
Decision 2 of the Court of Appeals (CA)
denying the petition for annulment of
judgment and affirming in toto the decision of
the Regional Trial Court (RTC), Las Pias,
Branch 254. The CA dismissed outright the
Rule 47 petition for being the wrong remedy.
CcaASE
The Facts
Petitioner Manuel G. Almelor (Manuel) and
respondent Leonida Trinidad (Leonida) were
married on January 29, 1989 at the Manila
Cathedral. 3 Their union bore three children:
(1) Maria Paulina Corinne, born on October
20, 1989; (2) Napoleon Manuel, born on
August 9, 1991; and (3) Manuel Homer, born
on July 4, 1994. 4 Manuel and Leonida are
both medical practitioners, an anesthesiologist
and a pediatrician, respectively. 5
After eleven (11) years of marriage, Leonida
filed a petition with the RTC in Las Pias City
to annul their marriage on the ground that
Manuel was psychologically incapacitated to
perform his marital obligations. The case,
docketed as LP-00-0132 was raffled off to
Branch 254.
During the trial, Leonida testified that she first
met Manuel in 1981 at the San Lazaro
Hospital where they worked as medical
student clerks. At that time, she regarded
Manuel as a very thoughtful person who got
along well with other people. They soon
became sweethearts. Three years after, they
got married. 6 CTacSE
Leonida averred that Manuel's kind and gentle
demeanor did not last long. In the public eye,
Manuel was the picture of a perfect husband
and father. This was not the case in his
private life. At home, Leonida described
Manuel as a harsh disciplinarian,
unreasonably meticulous, easily angered.
Manuel's unreasonable way of imposing
discipline on their children was the cause of
their frequent fights as a couple. 7 Leonida
complained that this was in stark contrast to
the alleged lavish affection Manuel has for his
mother. Manuel's deep attachment to his
mother and his dependence on her decision-
making were incomprehensible to Leonida. 8
Further adding to her woes was his
concealment to her of his homosexuality. Her
suspicions were first aroused when she
noticed Manuel's peculiar closeness to his
male companions. For instance, she caught
him in an indiscreet telephone conversation
manifesting his affection for a male caller. 9
She also found several pornographic
homosexual materials in his possession. 10
Her worse fears were confirmed when she saw
Manuel kiss another man on the lips. The
man was a certain Dr. Nogales. 11 When she
confronted Manuel, he denied everything. At
this point, Leonida took her children and left
their conjugal abode. Since then, Manuel
stopped giving support to their children. 12
SACHcD
Dr. Valentina del Fonso Garcia, a clinical
psychologist, was presented to prove Leonida's
claim. Dr. del Fonso Garcia testified that she
conducted evaluative interviews and a battery
of psychiatric tests on Leonida. She also had a
one-time interview with Manuel and face-to-
face interviews with Ma. Paulina Corrinne (the
eldest child). 13 She concluded that Manuel is
psychologically incapacitated. 14 Such
incapacity is marked by antecedence; it
existed even before the marriage and appeared
to be incurable.
Manuel, for his part, admitted that he and
Leonida had some petty arguments here and
there. He, however, maintained that their
marital relationship was generally
harmonious. The petition for annulment filed
by Leonida came as a surprise to him.
Manuel countered that the true cause of
Leonida's hostility against him was their
professional rivalry. It began when he refused
to heed the memorandum 15 released by
Christ the King Hospital. The memorandum
ordered him to desist from converting his own
lying-in clinic to a primary or secondary
hospital. 16 Leonida's family owns Christ the
King Hospital which is situated in the same
subdivision as Manuel's clinic and residence.
17 In other words, he and her family have
competing or rival hospitals in the same
vicinity. CEASaT
Manuel belied her allegation that he was a
cruel father to their children. He denied
maltreating them. At most, he only imposed
the necessary discipline on the children.
He also defended his show of affection for his
mother. He said there was nothing wrong for
him to return the love and affection of the
person who reared and looked after him and
his siblings. This is especially apt now that his
mother is in her twilight years. 18 Manuel
pointed out that Leonida found fault in this
otherwise healthy relationship because of her
very jealous and possessive nature. 19
This same overly jealous behavior of Leonida
drove Manuel to avoid the company of female
friends. He wanted to avoid any further
misunderstanding with his wife. But, Leonida
instead conjured up stories about his sexual
preference. She also fabricated tales about
pornographic materials found in his
possession to cast doubt on his masculinity.
20 aDTSHc
To corroborate his version, he presented his
brother, Jesus G. Almelor. Jesus narrated
that he usually stayed at Manuel's house
during his weekly trips to Manila from Iriga
City. He was a witness to the generally
harmonious relationship between his brother
Manuel and sister-in-law, Leonida. True, they
had some quarrels typical of a husband and
wife relationship. But there was nothing
similar to what Leonida described in her
testimony. 21
Jesus further testified that he was with his
brother on the day Leonida allegedly saw
Manuel kissed another man. He denied that
such an incident occurred. On that particular
date, 22 he and Manuel went straight home
from a trip to Bicol. There was no other person
with them at that time, except their driver. 23
Manuel expressed his intention to refute Dr.
del Fonso Garcia's findings by presenting his
own expert witness. However, no psychiatrist
was presented. TAESDH
RTC Disposition
By decision dated November 25, 2005, the
RTC granted the petition for annulment, with
the following disposition:
WHEREFORE, premised on the foregoing,
judgment is hereby rendered:
1. Declaring the marriage contracted by
herein parties on 29 January 1989 and all its
effects under the law null and void from the
beginning;
2. Dissolving the regime of community
property between the same parties with
forfeiture of defendant's share thereon in favor
of the same parties' children whose legal
custody is awarded to plaintiff with visitorial
right afforded to defendant; DAEcIS
3. Ordering the defendant to give monthly
financial support to all the children; and
4. Pursuant to the provisions of A.M. No.
02-11-10-SC:
a. Directing the Branch Clerk of this
Court to enter this Judgment upon its finality
in the Book of Entry of Judgment and to issue
an Entry of Judgment in accordance thereto;
and
b. Directing the Local Civil Registrars of
Las Pias City and Manila City to cause the
registration of the said Entry of Judgment in
their respective Books of Marriages.
Upon compliance, a decree of nullity of
marriage shall be issued.
SO ORDERED. 24 (Emphasis supplied)
cCSTHA
The trial court nullified the marriage, not on
the ground of Article 36, but Article 45 of the
Family Code. It ratiocinated:
. . . a careful evaluation and in-depth analysis
of the surrounding circumstances of the
allegations in the complaint and of the
evidence presented in support thereof (sic)
reveals that in this case (sic) there is more
than meets the eyes (sic).
Both legally and biologically, homosexuality . .
. is, indeed, generally incompatible with hetero
sexual marriage. This is reason enough that in
this jurisdiction (sic) the law recognizes
marriage as a special contract exclusively only
between a man and a woman . . . and thus
when homosexuality has trespassed into
marriage, the same law provides ample
remedies to correct the situation [Article 45(3)
in relation to Article 46(4) or Article 55, par. 6,
Family Code]. This is of course in recognition
of the biological fact that no matter how a
man cheats himself that he is not a
homosexual and forces himself to live a
normal heterosexual life, there will surely
come a time when his true sexual preference
as a homosexual shall prevail in haunting him
and thus jeopardizing the solidity, honor, and
welfare of his own family. 25 HTCIcE
Manuel filed a notice of appeal which was,
however, denied due course. Undaunted, he
filed a petition for annulment of judgment
with the CA. 26
Manuel contended that the assailed decision
was issued in excess of the lower court's
jurisdiction; that it had no jurisdiction to
dissolve the absolute community of property
and forfeit his conjugal share in favor of his
children.
CA Disposition
On July 31, 2007, the CA denied the petition,
disposing as follows:
WHEREFORE, the present Petition for
Annulment of Judgment is hereby DENIED.
The Court AFFIRMS in toto the Decision
(dated November 25, 2005) of the Regional
Trial Court (Branch 254), in Las Pias City, in
Civil Case No. LP-00-0132. No costs. 27
The CA stated that petitioner pursued the
wrong remedy by filing the extraordinary
remedy of petition for annulment of judgment.
Said the appellate court:
It is obvious that the petitioner is questioning
the propriety of the decision rendered by the
lower Court. But the remedy assuming there
was a mistake is not a Petition for Annulment
of Judgment but an ordinary appeal. An error
of judgment may be reversed or corrected only
by appeal. TCIHSa
What petitioner is ascribing is an error of
judgment, not of jurisdiction, which is
properly the subject of an ordinary appeal.
In short, petitioner admits the jurisdiction of
the lower court but he claims excess in the
exercise thereof. "Excess" assuming there was
is not covered by Rule 47 of the 1997 Rules of
Civil Procedure. The Rule refers the lack of
jurisdiction and not the exercise thereof. 28
Issues
Petitioner Manuel takes the present recourse
via Rule 45, assigning to the CA the following
errors:
I
THE HONORABLE COURT OF APPEALS
ERRED IN NOT TREATING THE PETITION
FOR ANNULMENT OF JUDGMENT AS A
PETITION FOR REVIEW IN VIEW OF THE
IMPORTANCE OF THE ISSUES INVOLVED
AND IN THE INTEREST OF JUSTICE;
EDcIAC
II
THE HONORABLE COURT OF APPEALS
ERRED IN UPHOLDING THE DECISION OF
THE TRIAL COURT AS REGARDS THE
ORDER DECLARING THE MARRIAGE AS
NULL AND VOID ON THE GROUND OF
PETITIONER'S PSYCHOLOGICAL
INCAPACITY;
III
THE HONORABLE COURT OF APPEALS
ERRED IN UPHOLDING THE DECISION OF
THE TRIAL COURT AS REGARDS THE
ORDER TO FORFEIT THE SHARE OF
PETITIONER IN HIS SHARE OF THE
CONJUGAL ASSETS. 29
Our Ruling
I. The stringent rules of procedures may
be relaxed to serve the demands of substantial
justice and in the Court's exercise of equity
jurisdiction.
Generally, an appeal taken either to the
Supreme Court or the CA by the wrong or
inappropriate mode shall be dismissed. 30
This is to prevent the party from benefiting
from one's neglect and mistakes. However, like
most rules, it carries certain exceptions. After
all, the ultimate purpose of all rules of
procedures is to achieve substantial justice as
expeditiously as possible. 31 ACaTIc
Annulment of judgment under Rule 47 is a
last remedy. It can not be resorted to if the
ordinary remedies are available or no longer
available through no fault of petitioner. 32
However, in Buenaflor v. Court of Appeals, 33
this Court clarified the proper appreciation for
technical rules of procedure, in this wise:
Rules of procedures are intended to promote,
not to defeat, substantial justice and,
therefore, they should not be applied in a very
rigid and technical sense. The exception is
that while the Rules are liberally construed,
the provisions with respect to the rules on the
manner and periods for perfecting appeals are
strictly applied. As an exception to the
exception, these rules have sometimes been
relaxed on equitable considerations. Also, in
some cases the Supreme Court has given due
course to an appeal perfected out of time
where a stringent application of the rules
would have denied it, but only when to do so
would serve the demands of substantial
justice and in the exercise of equity
jurisdiction of the Supreme Court. 34
(Emphasis and underscoring supplied)
TDCcAE
For reasons of justice and equity, this Court
has allowed exceptions to the stringent rules
governing appeals. 35 It has, in the past,
refused to sacrifice justice for technicality. 36
After discovering the palpable error of his
petition, Manuel seeks the indulgence of this
Court to consider his petition before the CA
instead as a petition for certiorari under Rule
65.
A perusal of the said petition reveals that
Manuel imputed grave abuse of discretion to
the lower court for annulling his marriage on
account of his alleged homosexuality. This is
not the first time that this Court is faced with
a similar situation. In Nerves v. Civil Service
Commission, 37 petitioner Delia R. Nerves
elevated to the CA a Civil Service Commission
(CSC) decision suspending her for six (6)
months. The CSC ruled Nerves, a public
school teacher, is deemed to have already
served her six-month suspension during the
pendency of the case. Nevertheless, she is
ordered reinstated without back wages. On
appeal, Nerves stated in her petition, inter
alia: CcADHI
1. This is a petition for certiorari filed
pursuant to Article IX-A, Section 7 of the
Constitution of the Philippines and under Rule
65 of the Rules of Court.
2. But per Supreme Court Revised
Administrative Circular No. 1-95 (Revised
Circular No. 1-91) petitioner is filing the
instant petition with this Honorable Court
instead of the Supreme Court. 38
(Underscoring supplied)
The CA dismissed Nerves' petition for
certiorari for being the wrong remedy or the
inappropriate mode of appeal. 39 The CA
opined that "under the Supreme Court
Revised Administrative Circular No. 1-95 . . .
appeals from judgments or final orders or
resolutions of CSC is by a petition for review."
40
This Court granted Nerves petition and held
that she had substantially complied with the
Administrative Circular. The Court stated:
That it was erroneously labeled as a petition
for certiorari under Rule 65 of the Rules of
Court is only a minor procedural lapse, not
fatal to the appeal. . . . ADCTac
More importantly, the appeal on its face
appears to be impressed with merit. Hence,
the Court of Appeals should have overlooked
the insubstantial defects of the petition . . . in
order to do justice to the parties concerned.
There is, indeed, nothing sacrosanct about
procedural rules, which should be liberally
construed in order to promote their object and
assist the parties in obtaining just, speedy,
and inexpensive determination of every action
or proceeding. As it has been said, where the
rigid application of the rules would frustrate
substantial justice, or bar the vindication of a
legitimate grievance, the courts are justified in
exempting a particular case from the
operation of the rules. 41 (Underscoring
supplied)
Similarly, in the more recent case of Tan v.
Dumarpa, 42 petitioner Joy G. Tan availed of
a wrong remedy by filing a petition for review
on certiorari instead of a motion for new trial
or an ordinary appeal. In the interest of
justice, this Court considered the petition, pro
hac vice, as a petition for certiorari under Rule
65. DEHaAS
This Court found that based on Tan's
allegations, the trial court prima facie
committed grave abuse of discretion in
rendering a judgment by default. If
uncorrected, it will cause petitioner great
injustice. The Court elucidated in this wise:
Indeed, where as here, there is a strong
showing that grave miscarriage of justice
would result from the strict application of the
Rules, we will not hesitate to relax the same in
the interest of substantial justice. 43
(Underscoring supplied)
Measured by the foregoing yardstick, justice
will be better served by giving due course to
the present petition and treating petitioner's
CA petition as one for certiorari under Rule
65, considering that what is at stake is the
validity or non-validity of a marriage.
In Salazar v. Court of Appeals, 44 citing Labad
v. University of Southeastern Philippines, this
Court reiterated:
. . . The dismissal of appeals on purely
technical grounds is frowned upon. While the
right to appeal is a statutory, not a natural
right, nonetheless it is an essential part of our
judicial system and courts should proceed
with caution so as not to deprive a party of the
right to appeal, but rather, ensure that every
party-litigant has the amplest opportunity for
the proper and just disposition of his cause,
free from the constraints of technicalities. 45
cSATDC
Indeed, it is far better and more prudent for a
court to excuse a technical lapse and afford
the parties a review of the case on the merits
to attain the ends of justice. 46
Furthermore, it was the negligence and
incompetence of Manuel's counsel that
prejudiced his right to appeal. His counsel,
Atty. Christine Dugenio, repeatedly availed of
inappropriate remedies. After the denial of her
notice of appeal, she failed to move for
reconsideration or new trial at the first
instance. She also erroneously filed a petition
for annulment of judgment rather than pursue
an ordinary appeal.
These manifest errors were clearly indicative
of counsel's incompetence. These gravely
worked to the detriment of Manuel's appeal.
True it is that the negligence of counsel binds
the client. Still, this Court has recognized
certain exceptions: (1) where reckless or gross
negligence of counsel deprives the client of
due process of law; (2) when its application
will result in outright deprivation of the
client's liberty and property; or (3) where the
interest of justice so require. 47 AEIHaS
The negligence of Manuel's counsel falls under
the exceptions. Ultimately, the reckless or
gross negligence of petitioner's former counsel
led to the loss of his right to appeal. He should
not be made to suffer for his counsel's grave
mistakes. Higher interests of justice and
equity demand that he be allowed to ventilate
his case in a higher court.
In Apex Mining, Inc. v. Court of Appeals, 48
this Court explained thus:
It is settled that the negligence of counsel
binds the client. This is based on the rule that
any act performed by a counsel within the
scope of his general or implied authority is
regarded as an act of his client. However,
where counsel is guilty of gross ignorance,
negligence and dereliction of duty, which
resulted in the client's being held liable for
damages in a damage suit, the client is
deprived of his day in court and the judgment
may be set aside on such ground. In the
instant case, higher interests of justice and
equity demand that petitioners be allowed to
present evidence on their defense. Petitioners
may not be made to suffer for the lawyer's
mistakes. This Court will always be disposed
to grant relief to parties aggrieved by perfidy,
fraud, reckless inattention and downright
incompetence of lawyers, which has the
consequence of depriving their clients, of their
day in court. 49 (Emphasis supplied)
EcHaAC
Clearly, this Court has the power to except a
particular case from the operation of the rule
whenever the demands of justice require it.
With more conviction should it wield such
power in a case involving the sacrosanct
institution of marriage. This Court is guided
with the thrust of giving a party the fullest
opportunity to establish the merits of one's
action. 50
The client was likewise spared from counsel's
negligence in Government Service Insurance
System v. Bengson Commercial Buildings, Inc.
51 and Ancheta v. Guersey-Dalaygon. 52 Said
the Court in Bengson:
But if under the circumstances of the case,
the rule deserts its proper office as an aid to
justice and becomes a great hindrance and
chief enemy, its rigors must be relaxed to
admit exceptions thereto and to prevent a
miscarriage of justice. In other words, the
court has the power to except a particular
case from the operation of the rule whenever
the purposes of justice require it. 53 cEDIAa
II. Concealment of homosexuality is the
proper ground to annul a marriage, not
homosexuality per se.
Manuel is a desperate man determined to
salvage what remains of his marriage.
Persistent in his quest, he fought back all the
heavy accusations of incapacity, cruelty, and
doubted masculinity thrown at him.
The trial court declared that Leonida's petition
for nullity had "no basis at all because the
supporting grounds relied upon can not
legally make a case under Article 36 of the
Family Code". It went further by citing
Republic v. Molina: 54
Indeed, mere allegations of conflicting
personalities, irreconcilable differences,
incessant quarrels and/or beatings,
unpredictable mood swings, infidelities, vices,
abandonment, and difficulty, neglect, or
failure in the performance of some marital
obligations do not suffice to establish
psychological incapacity. 55 EcaDCI
If so, the lower court should have dismissed
outright the petition for not meeting the
guidelines set in Molina. What Leonida
attempted to demonstrate were Manuel's
homosexual tendencies by citing overt acts
generally predominant among homosexual
individuals. 56 She wanted to prove that the
perceived homosexuality rendered Manuel
incapable of fulfilling the essential marital
obligations.
But instead of dismissing the petition, the trial
court nullified the marriage between Manuel
and Leonida on the ground of vitiated consent
by virtue of fraud. In support of its conclusion,
the lower court reasoned out:
As insinuated by the State (p. 75, TSN, 15
December 2003), when there is smoke surely
there is fire. Although vehemently denied by
defendant, there is preponderant evidence
enough to establish with certainty that
defendant is really a homosexual. This is the
fact that can be deduced from the totality of
the marriage life scenario of herein parties.
Before his marriage, defendant knew very well
that people around him even including his
own close friends doubted his true sexual
preference (TSN, pp. 35-36, 13 December
2000; pp. 73-75, 15 December 2003). After
receiving many forewarnings, plaintiff told
defendant about the rumor she heard but
defendant did not do anything to prove to the
whole world once and for all the truth of all
his denials. Defendant threatened to sue those
people but nothing happened after that. There
may have been more important matters to
attend to than to waste time and effort filing
cases against and be effected by these people
and so, putting more premiums on
defendant's denials, plaintiff just the same
married him. Reasons upon reasons may be
advanced to either exculpate or nail to the
cross defendant for his act of initially
concealing his homosexuality to plaintiff, but
in the end, only one thing is certain even
during his marriage with plaintiff, the smoke
of doubt about his real preference continued
and even got thicker, reason why obviously
defendant failed to establish a happy and solid
family; and in so failing, plaintiff and their
children became his innocent and unwilling
victims. cTEICD
Yes, there is nothing untoward of a man if,
like herein defendant, he is meticulous over
even small details in the house (sic) like
wrongly folded bed sheets, etc. or if a man is
more authoritative in knowing what clothes or
jewelry shall fit his wife (pp. 77-81, TSN, 15
December 2003); but these admissions of
defendant taken in the light of evidence
presented apparently showing that he had
extra fondness of his male friends (sic) to the
extent that twice on separate occasions (pp. 4-
7, TSN, 14 February 2001) he was allegedly
seen by plaintiff kissing another man lips-to-
lips plus the homosexual magazines and tapes
likewise allegedly discovered underneath his
bed (Exhibits "L" and "M"), the doubt as to his
real sex identity becomes stronger. The
accusation of plaintiff versus thereof of
defendant may be the name of the game in
this case; but the simple reason of
professional rivalry advanced by the defendant
is certainly not enough to justify and obscure
the question why plaintiff should accuse him
of such a very untoward infidelity at the
expense and humiliation of their children and
family as a whole. 57 CaATDE
Evidently, no sufficient proof was presented to
substantiate the allegations that Manuel is a
homosexual and that he concealed this to
Leonida at the time of their marriage. The
lower court considered the public perception
of Manuel's sexual preference without the
corroboration of witnesses. Also, it took
cognizance of Manuel's peculiarities and
interpreted it against his sexuality.
Even assuming, ex gratia argumenti, that
Manuel is a homosexual, the lower court
cannot appreciate it as a ground to annul his
marriage with Leonida. The law is clear a
marriage may be annulled when the consent
of either party was obtained by fraud, 58 such
as concealment of homosexuality. 59 Nowhere
in the said decision was it proven by
preponderance of evidence that Manuel was a
homosexual at the onset of his marriage and
that he deliberately hid such fact to his wife.
60 It is the concealment of homosexuality, and
not homosexuality per se, that vitiates the
consent of the innocent party. Such
concealment presupposes bad faith and intent
to defraud the other party in giving consent to
the marriage. aAcDSC
Consent is an essential requisite of a valid
marriage. To be valid, it must be freely given
by both parties. An allegation of vitiated
consent must be proven by preponderance of
evidence. The Family Code has enumerated an
exclusive list of circumstances 61 constituting
fraud. Homosexuality per se is not among
those cited, but its concealment.
This distinction becomes more apparent when
we go over the deliberations 62 of the
Committees on the Civil Code and Family Law,
to wit:
Justice Caguioa remarked that this ground
should be eliminated in the provision on the
grounds for legal separation. Dean Gupit,
however, pointed out that in Article 46, they
are talking only of "concealment", while in the
article on legal separation, there is actuality.
Judge Diy added that in legal separation, the
ground existed after the marriage, while in
Article 46, the ground existed at the time of
the marriage. Justice Reyes suggested that,
for clarity, they add the phrase "existing at the
time of the marriage" at the end of
subparagraph (4). The Committee approved
the suggestion. 63 ASEcHI
To reiterate, homosexuality per se is only a
ground for legal separation. It is its
concealment that serves as a valid ground to
annul a marriage. 64 Concealment in this
case is not simply a blanket denial, but one
that is constitutive of fraud. It is this
fundamental element that respondent failed to
prove.
In the United States, homosexuality has been
considered as a basis for divorce. It indicates
that questions of sexual identity strike so
deeply at one of the basic elements of
marriage, which is the exclusive sexual bond
between the spouses. 65 In Crutcher v.
Crutcher, 66 the Court held:
Unnatural practices of the kind charged here
are an infamous indignity to the wife, and
which would make the marriage relation so
revolting to her that it would become
impossible for her to discharge the duties of a
wife, and would defeat the whole purpose of
the relation. In the natural course of things,
they would cause mental suffering to the
extent of affecting her health. 67 SITCEA
However, although there may be similar
sentiments here in the Philippines, the legal
overtones are significantly different. Divorce is
not recognized in the country. Homosexuality
and its alleged incompatibility to a healthy
heterosexual life are not sanctioned as
grounds to sever the marriage bond in our
jurisdiction. At most, it is only a ground to
separate from bed and board.
What was proven in the hearings a quo was a
relatively blissful marital union for more than
eleven (11) years, which produced three (3)
children. The burden of proof to show the
nullity of the marriage rests on Leonida.
Sadly, she failed to discharge this onus.
The same failure to prove fraud which
purportedly resulted to a vitiated marital
consent was found in Villanueva v. Court of
Appeals. 68 In Villanueva, instead of proving
vitiation of consent, appellant resorted to
baseless portrayals of his wife as a perpetrator
of fraudulent schemes. Said the Court:
CITaSA
Factual findings of the Court of Appeals,
especially if they coincide with those of the
trial court, as in the instant case, are
generally binding on this Court. We affirm the
findings of the Court of Appeals that petitioner
freely and voluntarily married private
respondent and that no threats or
intimidation, duress or violence compelled him
to do so, thus
Appellant anchored his prayer for the
annulment of his marriage on the ground that
he did not freely consent to be married to the
appellee. He cited several incidents that
created on his mind a reasonable and well-
grounded fear of an imminent and grave
danger to his life and safety. . . .
The Court is not convinced that appellant's
apprehension of danger to his person is so
overwhelming as to deprive him of the will to
enter voluntarily to a contract of marriage. It
is not disputed that at the time he was
allegedly being harassed, appellant worked as
a security guard in a bank. Given the
rudiments of self-defense, or, at the very least,
the proper way to keep himself out of harm's
way. . . . aTcSID
Appellant also invoked fraud to annul his
marriage, as he was made to believe by
appellee that the latter was pregnant with his
child when they were married. Appellant's
excuse that he could not have impregnated
the appellee because he did not have an
erection during their tryst is flimsy at best,
and an outright lie at worst. The complaint is
bereft of any reference to his inability to
copulate with the appellee. . . .
xxx xxx xxx
. . . The failure to cohabit becomes relevant
only if it arises as a result of the perpetration
of any of the grounds for annulling the
marriage, such as lack of parental consent,
insanity, fraud, intimidation, or undue
influence . . . . Since the appellant failed to
justify his failure to cohabit with the appellee
on any of these grounds, the validity of his
marriage must be upheld. 69
Verily, the lower court committed grave abuse
of discretion, not only by solely taking into
account petitioner's homosexuality per se and
not its concealment, but by declaring the
marriage void from its existence. CacTSI
This Court is mindful of the constitutional
policy to protect and strengthen the family as
the basic autonomous social institution and
marriage as the foundation of the family. 70
The State and the public have vital interest in
the maintenance and preservation of these
social institutions against desecration by
fabricated evidence. 71 Thus, any doubt
should be resolved in favor of the validity of
marriage.
disposition or encumbrance shall be void.
However, the transaction shall be construed
as a continuing offer on the part of the
consenting spouse and the third person, and
may be perfected as a binding contract upon
the acceptance by the other spouse or
authorization by the court before the offer is
withdrawn by either or both offerors.
SDATEc
A similar provision, Article 124 72 prescribes
joint administration and enjoyment in a
regime of conjugal partnership. In a valid
marriage, both spouses exercise
administration and enjoyment of the property
regime, jointly.
In the case under review, the RTC decreed a
dissolution of the community property of
Manuel and Leonida. In the same breath, the
trial court forfeited Manuel's share in favor of
the children. Considering that the marriage is
upheld valid and subsisting, the dissolution
and forfeiture of Manuel's share in the
property regime is unwarranted. They remain
the joint administrators of the community
property.
WHEREFORE, the petition is GRANTED. The
appealed Decision is REVERSED and SET
ASIDE and the petition in the trial court to
annul the marriage is DISMISSED. HSaEAD
SO ORDERED.

III. In a valid marriage, the husband and Ynares-Santiago, Austria-Martinez, Chico-

wife jointly administer and enjoy their Nazario and Nachura, JJ., concur.
community or conjugal property.

Article 96 of the Family Code, on regimes of

absolute community property, provides:

Art. 96. The administration and

enjoyment of the community property shall
belong to both spouses jointly. In case of
disagreement, the husband's decision shall
prevail, subject to recourse to the court by the
wife for a proper remedy, which must be
availed of within five years from the date of the
contract implementing such decision.

In the event that one spouse is incapacitated

or otherwise unable to participate in the
administration of the common properties, the
other spouse may assume sole powers of
administration. These powers do not include
the powers of disposition or encumbrance
without the authority of the court or the
written consent of the other spouse. In the
absence of such authority or consent, the
EN BANC
[G.R. No. L-10033. December 28, 1956.]
BENJAMIN BUGAYONG, plaintiff-appellant,
vs. LEONILA GINEZ, defendant-appellee.
Florencio Dumapias for appellant.
Numeriano Tanopo, Jr. for appellee.
SYLLABUS
1. HUSBAND AND WIFE; INFIDELITIES
AMOUNTING TO ADULTERY; CONDONATION
DEPRIVES OFFENDED SPOUSE OF ACTION
FOR LEGAL SEPARATION. Granting that
the infidelities amounting to adultery were
committed by the wife, the act of the husband
in persuading her to come along with him,
and the fact that she went with him and
together they slept as husband and wife,
deprives him, as the alleged offended spouse,
of any action for legal separation against the
offending wife, because his said conduct
comes within the restriction of Article 100 of
the Civil Code.
2. ID.; ID.; ID.; EXTENT OF
COHABITATION TO CONSTITUTE
CONDONATION. The only general rule in
American jurisprudence is that any
cohabitation with the guilty party, after the
commission of the offense, and with the
knowledge or belief on the part of the injured
party of its commission, will amount to
conclusive evidence of condonation; but this
presumption may be rebutted by evidence (60
L.J. Prob. 73).
DECISION
FELIX, J p:
This is a case for legal separation filed in the
Court of First Instance of Pangasinan wherein
on motion of the defendant, the case was
dismissed. The order of dismissal was
appealed to the Court of Appeals, but said
Tribunal certified the case to this Court on the
ground that there is absolutely no question of
fact involved, the motion being predicated on
the assumption as true of the very facts
testified to by plaintiff-husband.
The facts of the case abridgedly stated are as
follows: Benjamin Bugayong, a serviceman in
the United States Navy, was married to
defendant Leonila Ginez on August 27, 1949,
at Asingan, Pangasinan, while on furlough
leave. Immediately after their marriage, the
couple lived with the sisters of the husband in
said municipality, but before the latter left to
report back to duty, he and his wife came to
an agreement that Leonila would stay with his
sisters who later moved to Sampaloc, Manila.
After some time, or about July, 1951, Leonila
Ginez left the dwelling of her sisters-in-law
and informed her husband by letter that she
had gone to reside with her mother in
Asingan, Pangasinan, from which place she
later moved to Dagupan City to study in a
local college there.
As early as July, 1951, Benjamin Bugayong
began receiving letters from Valeriana
Polangco (plaintiff's sister-in-law) and some
from anonymous writers (which were not
produced at the hearing) informing him of
alleged acts of infidelity of his wife which he
did not even care to mention. On cross-
examination, plaintiff admitted that his wife
also informed him by letter, which he claims
to have destroyed, that a certain "Eliong"
kissed her. All these communications
prompted him in October, 1951 to seek the
advice of the Navy Chaplain as to the propriety
of a legal separation between him and his wife
on account of the latter's alleged acts of
infidelity, and he was directed to consult
instead the navy legal department.
In August, 1952, plaintiff went to Asingan,
Pangasinan, and sought for his wife whom he
met in the house of one Mrs. Malalang,
defendant's godmother. She came along with
him and both proceeded to the house of Pedro
Bugayong, a cousin of the plaintiff-husband,
where they stayed and lived for 2 nights and 1
day as husband and wife. Then they repaired
to the plaintiff's house and again passed the
night therein as husband and wife. On the
second day, Benjamin Bugayong tried to verify
from his wife the truth of the information he
received that she had committed adultery but
Leonila, instead of answering his query,
merely packed up and left, which he took as a
confirmation of the acts of infidelity imputed
on her. After that and despite such belief,
plaintiff exerted efforts to locate her and
failing to find her, he went to Bacarra, Ilocos
Norte, "to soothe his wounded feelings".
On November 18, 1952, Benjamin Bugayong
filed in the Court of First Instance of
Pangasinan a complaint for legal separation
against his wife, Leonila Ginez, who timely
filed an answer vehemently denying the
averments of the complaint and setting up
affirmative defenses. After the issues were
joined and convinced that a reconciliation was
not possible, the court set the case for hearing
on June 9, 1953. Plaintiff's counsel
announced that he was to present 6 witnesses
but after plaintiff-husband finished testifying
in his favor, counsel for the defendant orally
moved for the dismissal of the complaint, but
the Court ordered him to file a written motion
to that effect and gave plaintiff 10 days to
answer the same.
The motion to dismiss was predicated on the
following grounds: (1) Assuming arguendo the
truth of the allegations of the commission of
"acts of rank infidelity amounting to adultery",
the cause of action, if any, is barred by the
statute of limitations; (2) That under the same
assumption, the acts charged have been
condoned by the plaintiff-husband; and (3)
That the complaint failed to state a cause of
action sufficient for this court to render a valid
judgment.
The motion to dismiss was answered by
plaintiff and the Court, considering only the
second ground of the motion to dismiss, i. e.,
condonation, ordered the dismissal of the
action. After the motion for reconsideration
filed by plaintiff was denied, the case was
taken up for review to the Court of Appeals,
appellant's counsel maintaining that the lower
court erred:
(a) In so prematurely dismissing the case;
(b) In finding that there was condonation
on the part of plaintiff-appellant; and
(c) In entertaining condonation as a
ground for dismissal inasmuch as same was
not raised in the answer or in a motion to
dismiss.
As the questions raised in the brief were
merely questions of law, the Court of Appeals
certified the case to this Superiority.
The Civil Code provides:
ART. 97. A petition for legal separation
may be filed:
(1) For adultery on the part of the wife and
for concubinage on the part of the husband as
defined in the Penal Code; or
(2) An attempt by one spouse against the
life of the other.
ART. 100. The legal separation may be
claimed only by the innocent spouse provided
there has been no condonation of or consent
to the adultery or concubinage. Where both
spouses are offenders a legal separation
cannot be claimed by either of them. Collusion
between the parties to obtain legal separation
shall cause the dismissal of the petition.
ART. 102. An action for legal separation
cannot be filed except within one year from
and after the date on which the plaintiff
became cognizant of the cause and within five
years from and after the date when such
cause occurred.
As the only reason of the lower Court for
dismissing the action was the alleged
condonation of the charges of adultery that
the plaintiff-husband had preferred in the
complaint against his wife, We will disregard
the other 2 grounds of the motion to dismiss,
as anyway they have not been raised in
appellant's assignment of errors.
Condonation is the forgiveness of a marital
offense constituting a ground for legal
separation or, as stated in I Bouvier's Law
Dictionary, p. 585, condonation is the
"conditional forgiveness or remission, by a
husband or wife of a matrimonial offense
which the latter has committed". It is to be
noted, however, that in defendant's answer
she vehemently and vigorously denies having
committed any act of infidelity against her
husband, and even if We were to give full
weight to the testimony of the plaintiff, who
was the only one that had the chance of
testifying in Court and link such evidence with
the averments of the complaint, We would
have to conclude that the facts appearing on
record are far from sufficient to establish the
charge of adultery, or, as the complaint states,
of "acts of rank infidelity amounting to
adultery" preferred against the defendant.
Certainly, the letter that plaintiff claims to
have received from his sister-in-law Valeriana
Polangco, which must have been too vague
and indefinite as to defendant's infidelity to
deserve its production in evidence; nor the
anonymous letters which plaintiff also failed
to present; nor the alleged letter that,
according to plaintiff, his wife addressed to
him admitting that she had been kissed by
one Eliong, whose identity was not established
and which admission defendant had no
opportunity to deny because the motion to
dismiss was filed soon after plaintiff finished
his testimony in Court, do not amount to
anything that can be relied upon.
But this is not a question at issue. In this
appeal, We have to consider plaintiff's line of
conduct under the assumption that he really
believed his wife guilty of adultery. What did
he do in such state of mind. In August, 1952,
he went to Pangasinan and looked for his wife
and after finding her they lived together as
husband and wife for 2 nights and 1 day, after
which he says that he tried to verify from her
the truth of the news he had about her
infidelity, but failed to attain his purpose
because his wife, instead of answering his
query on the matter, preferred to desert him,
probably enraged for being subjected to such
humiliation. And yet he tried to locate her,
though in vain. Now, do the husband's
attitude of sleeping with his wife for 2 nights
despite his alleged belief that she was
unfaithful to him, amount to a condonation of
her previous and supposed adulterous acts?
In the order appealed from, the Court a quo
had the following to say on this point:
"In the hearing of the case, the plaintiff further
testified as follows:
'Q. Now Mr. Bugayong, you have filed this
action for legal separation from your wife.
Please tell this Hon. Court why you want to
separate from your wife?
A. I came to know that my wife is
committing adultery, I consulted the chaplain
and he told me to consult the legal adviser.' (p.
11, t. s. n.).
'Q. Did you finally locate her?
A. Four days later or on the fifth day since
my arrival she went to the house of our god-
mother, and as a husband I went to her to
come along with me in our house but she
refused.' (p. 12, t. s. n.).
'Q. What happened next?
A. I persuaded her to come along with me.
She consented but I did not bring her home
but brought her to the house of my cousin
Pedro Bugayong." (p. 12, t. s. n.)
'Q. How long did you remain in the house
of your cousin Pedro Bugayong?
A. One day and one night.' (p. 12, t. s. n.)
'Q. That night when you stayed in the
house of your cousin Pedro Bugayong as
husband and wife, did you sleep together?
A. Yes, sir.' (p. 19, t. s. n.)
'Q. On the next night, when you slept in
your own house, did you sleep together also as
husband and wife?
A. Yes, sir.' (p. 19, t. s. n.)
'Q. When was that?
A. That was in August, 1952.' (p. 19, t. s.
n.)
'Q. How many nights did you sleep
together as husband and wife?
A. Only two nights.' (p. 19, t. s. n.)
"The New Civil Code of the Philippines, in its
Art. 97, says: 'A petition for legal separation
may be filed:
(1) For adultery on the part of the wife and
concubinage on the part of the husband as
defined in the Penal Code.'
and in its Art. 100 it says:
'The legal separation may be claimed only by
the innocent spouse, provided there has been
no condonation of or consent to the adultery
or concubinage. Where both spouses are
offenders, legal separation can not be claimed
by either of them. Collusion between the
parties to obtain legal separation shall cause
the dismissal of the petition.'
"A detailed examination of the testimony of the
plaintiff-husband, especially these portions
quoted above, clearly shows that there was a
condonation on the part of the husband for
the supposed 'acts of rank infidelity
amounting to adultery' committed by
defendant-wife. Admitting for the sake of
argument that the infidelities amounting to
adultery were committed by the defendant, a
reconciliation was effected between her and
the plaintiff. The act of the latter in
persuading her to come along with him, and
the fact that she went with him and consented
to be brought to the house of his cousin Pedro
Bugayong and together they slept there as
husband and wife for one day and one night,
and the further fact that in the second night
they again slept together in their house
likewise as husband and wife all these facts
have no other meaning in the opinion of this
court than that a reconciliation between them
was effected and that there was a condonation
of the wife by the husband. This reconciliation
occurred almost ten months after he came to
know of the acts of infidelity amounting to
adultery.
"In Shackleton vs. Shackleton, 48 N. J. Eq.
364; 21 Atl. 935, it has been held that
'condonation is implied from sexual
intercourse after knowledge of the other
infidelity. Such acts necessarily implied
forgiveness. It is entirely consonant with
reason and justice that if the wife freely
consents to sexual intercourse after she has
full knowledge of the husband's guilt, her
consent should operate as a pardon of his
wrong.'
"In Tiffany's Domestic and Family Relations,
section 107 says:
'Condonation. Is the forgiveness of a marital
offense constituting a ground for divorce and
bars the right to a divorce. But it is on the
condition, implied by the law when not
express, that the wrongdoer shall not again
commit the offense; and also that he shall
thereafter treat the other spouse with conjugal
kindness. A breach of the condition will revive
the original offense as a ground for divorce.
Condonation may be express or implied'.
"It has been held in a long line of decisions of
the various supreme courts of the different
states of the U. S. that a single voluntary act
of sexual intercourse by the innocent spouse
after discovery of the offense is ordinarily
sufficient to constitute condonation, especially
as against the husband. (27 Corpus Juris
Secundum, section 61 and cases cited
therein).
"In the light of the facts testified to by the
plaintiff-husband, of the legal provisions
above quoted, and of the various decisions
above-cited, the inevitable conclusion is that
the present action is untenable."
Although no acts of infidelity might have been
committed by the wife, We agree with the trial
judge that the conduct of the plaintiff-
husband above narrated despite his belief that
his wife was unfaithful, deprives him, as
alleged the offended spouse, of any action for
legal separation against the offending wife,
because his said conduct comes within the
restriction of Article 100 of the Civil Code.
The only general rule in American
jurisprudence is that any cohabitation with
the guilty party, after the commission of the
offense, and with the knowledge or belief on
the part of the injured party of its commission,
will amount to conclusive evidence of
condonation; but this presumption may be
rebutted by evidence (60 L. J. Prob. 73).
If there had been cohabitation, to what extent
must it be to constitute condonation?
Single voluntary act of marital intercourse
between the parties ordinarily is sufficient to
constitute condonation, and where the parties
live in the same house, it is presumed that
they live on terms of matrimonial cohabitation
(27 C. J. S., section 6-d).
A divorce suit will not be granted for adultery
where the parties continue to live together
after it was known (Land vs. Martin, 15 South
657; Day vs. Day, 80 Pac. 974) or there is
sexual intercourse after knowledge of adultery
(Rogers vs. Rogers, 67 N. J. Eq. 534) or
sleeping together for a single night (Toulson
vs. Toulson, 50 Atl 401, citing Phinizy vs.
Phinizy, 114 S. E. 185, 154 Ga. 199; Collins
vs. Collins, 193 So. 702), and many others.
The resumption of marital cohabitation as a
basis of condonation will generally be inferred,
nothing appearing to the contrary, from the
fact of the living together as husband and
wife, especially as against the husband (Marsh
vs. Marsh, 14 N. J. Eq. 315).
There is no ruling on this matter in our
jurisprudence but we have no reason to
depart from the doctrines laid down in the
decisions of the various supreme courts of the
United States above quoted.
There is no merit in the contention of
appellant that the lower court erred in
entertaining condonation as a ground for
dismissal inasmuch as same was not raised in
the answer or in a motion to dismiss, because
in the case at bar, the question of condonation
was raised in the second ground of the motion
to dismiss. It is true that it was filed after the
answer and after the hearing had been
commenced, yet that motion serves to
supplement the averments of defendant's
answer and to adjust the issues to the
testimony of plaintiff himself (section 4, Rule
17 of the Rules of Court).
Wherefore, and on the strength of the
foregoing, the order appealed from is hereby
affirmed, with costs against appellant. It is so
ordered.
Paras, C.J., Bengzon, Padilla, Bautista Angelo,
Labrador, Concepcion, Reyes, J. B. L. and
Endencia, JJ., concur.
FIRST DIVISION
[G.R. No. L-30977. January 31, 1972.]
CARMEN LAPUZ SY, represented by her
substitute MACARIO LAPUZ, petitioner-
appellant, vs. EUFEMIO S. EUFEMIO alias
EUFEMIO SY UY, respondent-appellee.
Jose W. Diokno for petitioner and appellant.
Deogracias C. Eufemio for respondent and
appellee.
SYLLABUS
1. CIVIL LAW; ACTION FOR LEGAL
SEPARATION; NATURE OF ACTION; EFFECT OF
DEATH OF PLAINTIFF BEFORE FINAL DECREE.
The death of the plaintiff before final decree in
an action for legal separation abates the action. An
action for legal separation which involves nothing
more than the bed-and-board separation of the
spouses (there being no absolute divorce in this
jurisdiction) is purely personal. The Civil Code of
the Philippines recognizes this in its Article 100, by
allowing only the innocent spouse (and no one else)
to claim legal separation and in its article 108, by
providing that the spouses can, by reconciliation,
stop or abate the proceedings and even rescind a
decree of legal separation already rendered. Being
personal in character, it follows that the death of
one party to the action causes the death of the
action itself actio personalis moritur cum
persona.
2. ID.; ID.; ID.; EFFECT OF DEATH OF
PLAINTIFF BEFORE FINAL DECREE ON
PROPERTY RELATIONS. A review of the
resulting changes in property relations between
spouses shows that they are solely the effect of the
decree of legal separation; hence, they can not
survive the death of the plaintiff if it occurs prior to
the decree.
3. ID.; ID.; ID.; ID.; CLAIM TO RIGHTS
UNDER ART. 106, CIVIL CODE OF THE
PHILIPPINES, EXTINGUISHED UPON THE DEATH
OF THE SPOUSE INVOLVED. From Art. 106 of
the Civil Code of the Philippines it is apparent that
the right to the dissolution of the conjugal
partnership or gains (or of the absolute community
of property), the loss of right by the offending
spouse to any share of the profits earned by the
partnership or community, or his disqualification
to inherit by intestacy from the innocent spouse as
well as revocation testamentary provisions in favor
of the offending spouse made by the innocent one,
are all rights and disabilities that, by the very
terms of Civil Code article, are vested exclusively in
the persons of the spouses; and by their nature
and intent, such claims and disabilities are
difficult to conceive as assignable or transmissible.
Hence, a claim to said rights is not a claim that "is
not thereby extinguished" after a party dies, under
section 17 Rule 3 of the Rules of Court, to warrant
continuation of the action through a substitute of
the deceased party. The same result flows from a
consideration of the enumeration of the actions
that survive for or against administrators in
Section 1, Rule 67, of the Revised Rules of Court
which shows that neither action for legal
separation or for annulment of marriage can be
deemed fairly included therein.
4. ID.; ID.; ID.; ID.; ID.; REASON. The
reason why an action is abated by the death of the
plaintiff, even if property rights are involved, is that
these rights are mere effects of a decree of
separation, their source being the decree itself;
without the decree such rights do not come into
existence, so that before the finality of a decree,
these claims are merely rights in expectation. If
death supervenes during the pendency of the
action, no decree can be forthcoming, death
producing a more radical and definitive separation;
and the expected consequential rights and claims
would necessarily remain unborn.
5. ID.; ID.; ID.; ACTION FOR DECLARATION
OF NULLITY AB INITIO OF MARRIAGE; EFFECT
OF DEATH OF PLAINTIFF UPON DEFENDANT'S
PROPERTY RIGHTS. A petition for a declaration
of nullity ab initio of marriage becomes moot and
academic upon the death of the wife, and there
could be no further interest in continuing the same
after her demise, that automatically dissolved the
questioned union. Any property rights acquired by
either party as a result of Art. 144 of the Civil Code
of the Philippines could be resolved and
determined in a proper action for partition by
either the appellee or by the heirs of the appellant.
6. ID.; ID.; ID.; ACTION FOR ANNULMENT OF
BIGAMOUS VOIDABLE MARRIAGE; EFFECT OF
DEATH OF ONE PARTY; PROPER PROCEEDINGS
FOR LIQUIDATION CONJUGAL PARTNERSHIP.
Even if the bigamous marriage had not been void
ab initio but only voidable under Article 83, par. 2
of the Civil Code, because the second marriage had
been contracted with the first wife having been an
absentee for seven consecutive years, or when she
had been generally believed dead, still the action
for annulment became extinguished as soon as one
of the three persons involved had died, as provided
in Article 87, par. 2 of the Code, requiring that the
action for annulment should be brought during the
lifetime of any one of the parties involved. And
furthermore, the liquidation of any conjugal
partnership might have resulted from such
voidable marriage must be carried out "in the
testate or intestate proceedings of the deceased
spouse", as expressly provided in section 3 of the
Revised Rule 73, and not in the annulment
proceedings.
DECISION
REYES, J.B.L., J p:
Petition, filed after the effectivity of Republic Act
5440, for review by certiorari of an order, dated 29
July 1969, of the Juvenile and Domestic Relations
Court of Manila, in its Civil Case No. 20387,
dismissing said case for legal separation on the
ground that the death of the therein plaintiff,
Carmen O. Lapuz Sy, which occurred during the
pendency of the case, abated the cause of action as
well as the action itself. The dismissal order was
issued over the objection of Macario Lapuz, the
heir of the deceased plaintiff (and petitioner herein)
who sought to substitute the deceased and to have
the case prosecuted to final judgment.
On 18 August 1953, Carmen O. Lapuz Sy filed a
petition for legal separation against Eufemio S.
Eufemio, alleging, in the main, that they were
married civilly on 21 September 1934 and
canonically on 30 September 1934; that they had
lived together as husband and wife continuously
until 1943 when her husband abandoned her; that
they had no child; that they acquired properties
during their marriage; and that she discovered her
husband cohabiting with a Chinese woman named
Go Hiok at 1319 Sisa Street, Manila, on or about
March 1949. She prayed for the issuance of a
decree of legal separation, which, among others,
would order that the defendant Eufemio S.
Eufemio should be deprived of his share of the
conjugal partnership profits.
In his second amended answer to the petition,
herein respondent Eufemio S. Eufemio alleged
affirmative and special defenses, and, along with
several other claims involving money and other
properties, counterclaimed for the declaration of
nullity ab initio of his marriage with Carmen O.
Lapuz Sy, on the ground of his prior and
subsisting marriage, celebrated according to
Chinese law and customs, with one Go Hiok, alias
Ngo Hiok.
Issues having been joined, trial proceeded and the
parties adduced their respective evidence. But
before the trial could be completed (the respondent
was already scheduled to present surrebuttal
evidence on 9 and 18 June 1969), petitioner
Carmen O. Lapuz Sy died in a vehicular accident
on 31 May 1969. Counsel for petitioner duly
notified the court of her death.
On 9 June 1969, respondent Eufemio moved to
dismiss the "petition for legal separation" 1 on two
(2) grounds, namely: that the petition for legal
separation was filed beyond the one-year period
provided for in Article 102 of the Civil Code; and
that the death of Carmen abated the action for
legal separation.
On 26 June 1969, counsel for deceased petitioner
moved to substitute the deceased Carmen by her
father, Macario Lapuz. Counsel for Eufemio
opposed the motion.
On 29 July 1969, the court issued the order under
review, dismissing the case. 2 In the body of the
order, the court stated that the motion to dismiss
and the motion for substitution had to be resolved
on the question of whether or not the plaintiff's
cause of action has survived, which the court
resolved in the negative. Petitioner's moved to
reconsider but the motion was denied on 15
September 1969.
After first securing an extension of time to file a
petition for review of the order of dismissal issued
by the juvenile and domestic relations court, the
petitioner filed the present petition on 14 October
1969. The same was given due course and answer
thereto was filed by respondent, who prayed for the
affirmance of the said order. 3
Although the defendant below, the herein
respondent Eufemio S. Eufemio, filed
counterclaims, he did not pursue them after the
court below dismissed the case. He acquiesced in
the dismissal of said counterclaims by praying for
the affirmance of the order that dismissed not only
the petition for legal separation but also his
counterclaim to declare the Eufemio-Lapuz
marriage to be null and void ab initio.
But petitioner Carmen O. Lapuz Sy (through her
self-assumed substitute for the lower court did
not act on the motion for substitution) stated the
principal issue to be as follows:
"When an action for legal separation is converted
by the counterclaim into one for a declaration of
nullity of a marriage, does the death of a party
abate the proceedings?"
The issue as framed by petitioner injects into it a
supposed conversion of a legal separation suit to
one for declaration of nullity of a marriage, which
is without basis, for even petitioner asserted that
"the respondent has acquiesced to the dismissal of
his counterclaim" (Petitioner's Brief, page 22). Not
only this. The petition for legal separation and the
counterclaim to declare the nullity of the self same
marriage can stand independent and separate
adjudication. They are not inseparable nor was the
action for legal separation converted into one for a
declaration of nullity by the counterclaim, for legal
separation presupposes a valid marriage, while the
petition for nullity has a voidable marriage as a
precondition.
The first real issue in this case is: Does the death
of the plaintiff before final decree, in an action for
legal separation, abate the action? If it does, will
abatement also apply if the action involves
property rights?
An action for legal separation which involves
nothing more than the bed-and-board separation
of the spouses (there being no absolute divorce in
this jurisdiction) is purely personal. The Civil Code
of the Philippines recognizes this in its Article 100,
by allowing only the innocent spouse (and no one
else) to claim legal separation; and in its Article
108, by providing that the spouses can, by their
reconciliation, stop or abate the proceedings and
even rescind a decree of legal separation already
rendered. Being personal in character, it follows
that the death of one party to the action causes the
death of the action itself actio personalis moritur
cum persona.
". . . When one of the spouses is dead, there is no
need for divorce, because the marriage is dissolved.
The heirs cannot even continue the suit, if the
death of the spouse takes place during the course
of the suit (Article 244, Section 3). The action is
absolutely dead (Cass., July 27, 1871, D. 71. 1. 81;
Cass. req., May 8, 1933, D. D. 1933, 332." 4
"Marriage is a personal relation or status, created
under the sanction of law, and an action for
divorce is a proceeding brought for the purpose of
effecting a dissolution of that relation. The action is
one of a personal nature. In the absence of a
statute to the contrary, the death of one of the
parties to such action abates the action, for the
reason that death has settled the question of
separation beyond all controversy and deprived the
court of jurisdiction, both over the persons of the
parties to the action and of the subject-matter of
the action itself. For this reason the courts are
almost unanimous in holding that the death of
either party to a divorce proceeding, before final
decree, abates the action. 1 Corpus Juris, 208;
Wren v. Moss, 2 Gilman, 72; Danforth v. Danforth,
111 III. 236; Matter of Grandall, 196 N.Y. 127, 89
N.E. 578; 134 Am St. Rep. 830; 17 Ann. Cas. 874;
Wilcon v. Wilson, 73 Mich, 620, 41 N.W. 817;
Strickland v. Strickland, 80 Ark. 452, 97 S. W.
659; McCurley v. McCurley, 60 Md. 185. 45 Am.
Rep. 717; Begbie v. Begbie, 128 Cal. 155, 60 Pac.
667, 49 L.R.A. 141." 5
The same rule is true of causes of action and suits
for separation and maintenance (Johnson vs.
Bates, Ark. 101 SW 412; 1 Corpus Juris 208).
A review of the resulting changes in property
relations between spouses shows that they are
solely the effect of the decree of legal separation;
hence, they can not survive the death of the
plaintiff if it occurs prior to the decree. On the
point, Article 106 of the Civil Code provides:
"Art. 106. The decree of legal separation shall
have the following effects:
"(1) The spouses shall be entitled to live
separately from each other, but the marriage
bonds shall not be severed;
"(2) The conjugal partnership of gains or the
absolute conjugal community of property shall be
dissolved and liquidated, but the offending spouse
shall have no right to any share of the profits
earned by the partnership or community, without
prejudice to the provisions of article 176;
"(3) The custody of the minor children shall be
awarded to the innocent spouse, unless otherwise
directed by the court in the interest of said minors,
for whom said court may appoint a guardian;
"(4) The offending spouse shall be disqualified
from inheriting from the innocent spouse by
intestate succession. Moreover, provisions in favor
of the offending spouse made in the will of the
innocent one shall be revoked by operation of law."
...
From this article it is apparent that the right to the
dissolution of the conjugal partnership of gains (or
of the absolute community of property), the loss of
right by the offending spouse to any share of the
profits earned by the partnership or community, or
his disqualification to inherit by intestacy from the
innocent spouse as well as the revocation of
testamentary provisions in favor of the offending
spouse made by the innocent one, are all rights
and disabilities that, by the very terms of the Civil
Code article, are vested exclusively in the persons
of the spouses; and by their nature and intent,
such claims and disabilities are difficult to
conceive as assignable or transmissible. Hence, a
claim to said rights is not a claim that "is not
thereby extinguished" after a party dies, under
Section 17, Rule 3, of the Rules of Court, to
warrant continuation of the action through a
substitute of the deceased party.
"Sec. 17. Death of party. After a party
dies and the claim is not thereby extinguished, the
court shall order, upon proper notice, the legal
representative of the deceased to appear and to be
substituted for the deceased, within a period of
thirty (30) days, or within such time as may be
granted. . . ."
The same result flows from a consideration of the
enumeration of the actions that survive for or
against administrators in Section 1, Rule 87, of the
Revised Rules of Court:
"SECTION 1. Actions which may and which may
not be brought against executor or administrator.
No action upon a claim for the recovery of
money or debt or interest thereon shall be
commenced against the executor or administrator;
but actions to recover real or personal property, or
an interest therein, from the estate, or to enforce a
lien thereon, and actions to recover damages for an
injury to person or property, real or personal, may
be commenced against him."
Neither actions for legal separation or for
annulment of marriage can be deemed fairly
included in the enumeration.
A further reason why an action for legal separation
is abated by the death of the plaintiff, even if
property rights are involved, is that these rights are
mere effects of a decree of separation, their source
being the decree itself; without the decree such
rights do not come into existence, so that before
the finality of a decree, these claims are merely
rights in expectation. If death supervenes during
the pendency of the action, no decree can be
forthcoming, death producing a more radical and
definitive separation; and the expected
consequential rights and claims would necessarily
remain unborn.
As to the petition of respondent-appellee Eufemio
for a declaration of nullity ab initio of his marriage
to Carmen Lapuz, it is apparent that such action
became moot and academic upon the death of the
latter, and there could be no further interest in
continuing the same after her demise, that
automatically dissolved the questioned union. Any
property rights acquired by either party as a result
of Article 144 of the Civil Code of the Philippines 6
could be resolved and determined in a proper
action for partition by either the appellee or by the
heirs of the appellant.
In fact, even if the bigamous marriage had not
been void ab initio but only voidable under Article
83, paragraph 2, of the Civil Code, because the
second marriage had been contracted with the first
wife having been an absentee for seven consecutive
years, or when she had been generally believed
dead, still the action for annulment became
extinguished as soon as one of the three persons
involved had died, as provided in Article 87,
paragraph 2, of the Code, requiring that the action
for annulment should be brought during the
lifetime of any one of the parties involved. And
furthermore, the liquidation of any conjugal
partnership that might have resulted from such
voidable marriage must be carried out "in the
testate or intestate proceedings of the deceased
spouse", as expressly provided in Section 2 of the
Revised Rule 73, and not in the annulment
proceeding.
ACCORDINGLY, the appealed judgment of the
Manila Court of Juvenile and Domestic Relations is
hereby affirmed. No special pronouncement as to
costs.
Concepcion, C.J., Makalintal, Zaldivar, Castro,
Fernando, Teehankee, Barredo, Villamor and
Makasiar, JJ., concur.
FIRST DIVISION
[G.R. No. 153206. October 23, 2006.]
ONG ENG KIAM a.k.a. WILLIAM ONG,
petitioner, vs. LUCITA G. ONG, respondent.
DECISION
AUSTRIA-MARTINEZ, J p:
Before this Court is a Petition for Review
seeking the reversal of the Decision 1 of the
Court of Appeals (CA) in CA G.R. CV No.
59400 which affirmed in toto the Decision of
the Regional Trial Court (RTC) Branch 41,
Dagupan City granting the petition for legal
separation filed by herein respondent, as well
as the Resolution 2 of the CA dated April 26,
2002 which denied petitioner's motion for
reconsideration. DCScaT
Ong Eng Kiam, also known as William Ong
(William) and Lucita G. Ong (Lucita) were
married on July 13, 1975 at the San Agustin
Church in Manila. They have three children:
Kingston, Charleston, and Princeton who are
now all of the age of majority. 3
On March 21, 1996, Lucita filed a Complaint
for Legal Separation under Article 55 par. (1)
of the Family Code 4 before the Regional Trial
Court (RTC) of Dagupan City, Branch 41
alleging that her life with William was marked
by physical violence, threats, intimidation and
grossly abusive conduct. 5
Lucita claimed that: soon after three years of
marriage, she and William quarreled almost
every day, with physical violence being
inflicted upon her; William would shout
invectives at her like "putang ina mo", "gago",
"tanga", and he would slap her, kick her, pull
her hair, bang her head against concrete wall
and throw at her whatever he could reach
with his hand; the causes of these fights were
petty things regarding their children or their
business; William would also scold and beat
the children at different parts of their bodies
using the buckle of his belt; whenever she
tried to stop William from hitting the children,
he would turn his ire on her and box her; on
December 9, 1995, after she protested with
William's decision to allow their eldest son
Kingston to go to Bacolod, William slapped her
and said, "it is none of your business"; on
December 14, 1995, she asked William to
bring Kingston back from Bacolod; a violent
quarrel ensued and William hit her on her
head, left cheek, eye, stomach, and arms;
when William hit her on the stomach and she
bent down because of the pain, he hit her on
the head then pointed a gun at her and asked
her to leave the house; she then went to her
sister's house in Binondo where she was
fetched by her other siblings and brought to
their parents house in Dagupan; the following
day, she went to her parent's doctor, Dr.
Vicente Elinzano for treatment of her injuries.
6 Worst, their children are also suffering. As
William for his part denied that he ever
inflicted physical harm on his wife, used
insulting language against her, or whipped the
children with the buckle of his belt. While he
admits that he and Lucita quarreled on
December 9, 1995, at their house in Jose
Abad Santos Avenue, Tondo, Manila, he
claimed that he left the same, stayed in their
Greenhills condominium and only went back
to their Tondo house to work in their office
below. In the afternoon of December 14, 1995,
their laundrywoman told him that Lucita left
the house. 7
On January 5, 1998, the RTC rendered its
Decision decreeing legal separation, thus:
WHEREFORE, premises considered, judgment
is hereby rendered decreeing the legal
separation of plaintiff and defendant, with all
the legal effects attendant thereto, particularly
the dissolution and liquidation of the conjugal
partnership properties, for which purpose the
parties are hereby ordered to submit a
complete inventory of said properties so that
the Court can make a just and proper
division, such division to be embodied in a
supplemental decision. ISTCHE
SO ORDERED. 8
The RTC found that:
It is indubitable that plaintiff (Lucita) and
defendant (William) had their frequent
quarrels and misunderstanding which made
both of their lives miserable and hellish. This
is even admitted by the defendant when he
said that there was no day that he did not
quarrel with his wife. Defendant had regarded
the plaintiff negligent in the performance of
her wifely duties and had blamed her for not
reporting to him about the wrongdoings of
their children. (citations omitted)
These quarrels were always punctuated by
acts of physical violence, threats and
intimidation by the defendant against the
plaintiff and on the children. In the process,
insulting words and language were heaped
upon her. The plaintiff suffered and endured
the mental and physical anguish of these
marital fights until December 14, 1995 when
she had reached the limits of her endurance.
The more than twenty years of her marriage
could not have been put to waste by the
plaintiff if the same had been lived in an
atmosphere of love, harmony and peace.
very well stated in plaintiff's memorandum, "it
would be unthinkable for her to throw away
this twenty years of relationship, abandon the
comforts of her home and be separated from
her children, whom she loves, if there exists
no cause, which is already beyond her
endurance. 9
William appealed to the CA which affirmed in
toto the RTC decision. In its Decision dated
October 8, 2001, the CA found that the
testimonies for Lucita were straightforward
and credible and the ground for legal
separation under Art. 55, par. 1 of the Family
Code, i.e., physical violence and grossly
abusive conduct directed against Lucita, were
adequately proven. 10
As the CA explained:
The straightforward and candid testimonies of
the witnesses were uncontroverted and
credible. Dr. Elinzano's testimony was able to
show that the [Lucita] suffered several injuries
inflicted by [William]. It is clear that on
December 14, 1995, she sustained redness in
her cheek, black eye on her left eye, fist blow
on the stomach, blood clot and a blackish
discoloration on both shoulders and a "bump"
or "bukol" on her head. The presence of these
injuries was established by the testimonies of
[Lucita] herself and her sister, Linda Lim. The
Memorandum/Medical Certificate also
confirmed the evidence presented and does
not deviate from the doctor's main testimony
that [Lucita] suffered physical violence on
[sic] the hands of her husband, caused by
physical trauma, slapping of the cheek, boxing
and fist blows. The effect of the so-called
alterations in the Memorandum/Medical
Certificate questioned by [William] does not
depart from the main thrust of the testimony
of the said doctor.
Also, the testimony of [Lucita] herself
consistently and constantly established that
[William] inflicted repeated physical violence
upon her during their marriage and that she
had been subjected to grossly abusive conduct
when he constantly hurled invectives at her
even in front of their customers and
employees, shouting words like, "gaga",
"putang ina mo," tanga," and "you don't know
anything."
These were further corroborated by several
incidents narrated by Linda Lim who lived in
their conjugal home from 1989 to 1991. She
saw her sister after the December 14, 1995
incident when she (Lucita) was fetched by the
latter on the same date. She was a witness to
the kind of relationship her sister and
[William] had during the three years she lived
with them. She observed that [William] has an
"explosive temper, easily gets angry and
becomes very violent." She cited several
instances which proved that William Ong
indeed treated her wife shabbily and
despicably, in words and deeds.
xxx xxx xxx
That the physical violence and grossly abusive
conduct were brought to bear upon [Lucita] by
[William] have been duly established by
[Lucita] and her witnesses. These incidents
were not explained nor controverted by
[William], except by making a general denial
thereof. Consequently, as between an
affirmative assertion and a general denial,
weight must be accorded to the affirmative
assertion. CTHaSD
The grossly abusive conduct is also apparent
in the instances testified to by [Lucita] and her
sister. The injurious invectives hurled at
[Lucita] and his treatment of her, in its
entirety, in front of their employees and
friends, are enough to constitute grossly
abusive conduct. The aggregate behavior of
[William] warrants legal separation under
grossly abusive conduct. . . . 11
William filed a motion for reconsideration
which was denied by the CA on April 26,
2002. 12
Hence the present petition where William
claims that:
I and family life; William expressed his
THE COURT OF APPEALS COMMITTED AN
ERROR OF LAW IN DISREGARDING CLEAR
EVIDENCE THAT THE PETITION FOR LEGAL
SEPARATION WAS INSTITUTED BY THE
PRIVATE RESPONDENT FOR THE SOLE
PURPOSE OF REMOVING FROM PETITIONER
THE CONTROL AND OWNERSHIP OF THEIR
CONJUGAL PROPERTIES AND TO TRANSFER
THE SAME TO PRIVATE RESPONDENT'S
FAMILY.
II
THE COURT OF APPEALS COMMITTED AN
ERROR OF LAW IN DISREGARDING CLEAR
EVIDENCE REPUDIATING PRIVATE
RESPONDENT'S CLAIM OF REPEATED
PHYSICAL VIOLENCE AND GROSSLY
ABUSIVE CONDUCT ON THE PART OF
PETITIONER. 13
William argues that: the real motive of Lucita
and her family in filing the case is to wrest
control and ownership of properties belonging
to the conjugal partnership; these properties,
which include real properties in Hong Kong,
Metro Manila, Baguio and Dagupan, were
acquired during the marriage through his
(William's) sole efforts; the only parties who
will benefit from a decree of legal separation
are Lucita's parents and siblings while such
decree would condemn him as a violent and
cruel person, a wife-beater and child abuser,
and will taint his reputation, especially among
the Filipino-Chinese community; substantial
facts and circumstances have been overlooked
which warrant an exception to the general rule
that factual findings of the trial court will not
be disturbed on appeal; the findings of the
trial court that he committed acts of repeated
physical violence against Lucita and their
children were not sufficiently established;
what took place were disagreements regarding
the manner of raising and disciplining the
children particularly Charleston, Lucita's
favorite son; marriage being a social contract
cannot be impaired by mere verbal
disagreements and the complaining party
must adduce clear and convincing evidence to
justify legal separation; the CA erred in relying
on the testimonies of Lucita and her
witnesses, her sister Linda Lim, and their
parent's doctor, Dr. Vicente Elinzanzo, whose
testimonies are tainted with relationship and
fraud; in the 20 years of their marriage, Lucita
has not complained of any cruel behavior on
the part of William in relation to their marital
willingness to receive respondent
unconditionally however, it is Lucita who
abandoned the conjugal dwelling on December
14, 1995 and instituted the complaint below
in order to appropriate for herself and her
relatives the conjugal properties; the
Constitution provides that marriage is an
inviolable social institution and shall be
protected by the State, thus the rule is the
preservation of the marital union and not its
infringement; only for grounds enumerated in
Art. 55 of the Family Code, which grounds
should be clearly and convincingly proven,
can the courts decree a legal separation
among the spouses. 14
Respondent Lucita in her Comment,
meanwhile, asserts that: the issues raised in
the present petition are factual; the findings of
both lower courts rest on strong and clear
evidence borne by the records; this Court is
not a trier of facts and factual findings of the
RTC when confirmed by the CA are final and
conclusive and may not be reviewed on
appeal; the contention of William that Lucita
filed the case for legal separation in order to
remove from William the control and
ownership of their conjugal properties and to
transfer the same to Lucita's family is absurd;
Lucita will not just throw her marriage of 20
years and forego the companionship of
William and her children just to serve the
interest of her family; Lucita left the conjugal
home because of the repeated physical
violence and grossly abusive conduct of
petitioner. 15
Petitioner filed a Reply, reasserting his claims
in his petition, 16 as well as a Memorandum
where he averred for the first time that since
respondent is guilty of abandonment, the
petition for legal separation should be denied
following Art. 56, par. (4) of the Family Code.
17 Petitioner argues that since respondent
herself has given ground for legal separation
by abandoning the family simply because of a
quarrel and refusing to return thereto unless
the conjugal properties were placed in the
administration of petitioner's in-laws, no
decree of legal separation should be issued in
her favor. 18
Respondent likewise filed a Memorandum
reiterating her earlier assertions. 19
We resolve to deny the petition.
It is settled that questions of fact cannot be
the subject of a petition for review under Rule
45 of the Rules of Court. The rule finds more
stringent application where the CA upholds
the findings of fact of the trial court. In such
instance, this Court is generally bound to
adopt the facts as determined by the lower
courts. 20
The only instances when this Court reviews
findings of fact are:
(1) when the findings are grounded entirely
on speculation, surmises or conjectures; (2)
when the inference made is manifestly
mistaken, absurd or impossible; (3) when
there is grave abuse of discretion; (4) when the
judgment is based on a misapprehension of
facts; (5) when the findings of facts are
conflicting; (6) when in making its findings the
Court of Appeals went beyond the issues of
the case, or its findings are contrary to the
admissions of both the appellant and the
appellee; (7) when the findings are contrary to
that of the trial court; (8) when the findings
are conclusions without citation of specific
evidence on which they are based; (9) when
the facts set forth in the petition as well as in
the petitioner's main and reply briefs are not
disputed by the respondent; (10) when the
findings of fact are premised on the supposed
absence of evidence and contradicted by the
evidence on record; and (11) when the Court
of Appeals manifestly overlooked certain
relevant facts not disputed by the parties,
which, if properly considered, would justify a
different conclusion. 21
As petitioner failed to show that the instant
case falls under any of the exceptional
circumstances, the general rule applies.
AHDacC
Indeed, this Court cannot review factual
findings on appeal, especially when they are
borne out by the records or are based on
substantial evidence. 22 In this case, the
findings of the RTC were affirmed by the CA
and are adequately supported by the records.
As correctly observed by the trial court,
William himself admitted that there was no
day that he did not quarrel with his wife,
which made his life miserable, and he blames
her for being negligent of her wifely duties and
for not reporting to him the wrongdoings of
their children. 23
Lucita and her sister, Linda Lim, also gave
numerous accounts of the instances when
William displayed violent temper against
Lucita and their children; such as: when
William threw a steel chair at Lucita; 24 threw
chairs at their children; 25 slapped Lucita and
utter insulting words at her; 26 use the buckle
of the belt in whipping the children; 27 pinned
Lucita against the wall with his strong arms
almost strangling her, and smashed the flower
vase and brick rocks and moldings leaving the
bedroom in disarray; 28 shouted at Lucita and
threw a directory at her, in front of Linda and
the employees of their business, because he
could not find a draft letter on his table; 29
got mad at Charleston for cooking steak with
vetchin prompting William to smash the plate
with steak and hit Charleston, then slapped
Lucita and shouted at her "putang ina mo,
gago, wala kang pakialam, tarantado" when
she sided with Charleston; 30 and the
December 9 and December 14, 1995 incidents
which forced Lucita to leave the conjugal
dwelling. 31
Lucita also explained that the injuries she
received on December 14, 1995, were not the
first. As she related before the trial court:
q. You stated on cross examination that
the injuries you sustained on December 14,
1995 were the most serious?
a. Unlike before I considered December
14, 1995 the very serious because before it is
only on the arm and black eye, but on this
December 14, I suffered bruises in all parts of
my body, sir. 32
To these, all William and his witnesses, could
offer are denials and attempts to downplay the
said incidents. 33
As between the detailed accounts given for
Lucita and the general denial for William, the
Court gives more weight to those of the
former. The Court also gives a great amount of
consideration to the assessment of the trial
court regarding the credibility of witnesses as
trial court judges enjoy the unique
opportunity of observing the deportment of
witnesses on the stand, a vantage point
denied appellate tribunals. 34 Indeed, it is
settled that the assessment of the trial court
of the credibility of witnesses is entitled to
great respect and weight having had the
opportunity to observe the conduct and
demeanor of the witnesses while testifying. 35
In this case, the RTC noted that:
[William]'s denial and that of his witnesses of
the imputation of physical violence committed
by him could not be given much credence by
the Court. Since the office secretary Ofelia
Rosal and the family laundrywoman Rosalino
Morco are dependent upon defendant for their
livelihood, their testimonies may be tainted
with bias and they could not be considered as
impartial and credible witnesses. So with
Kingston Ong who lives with defendant and
depends upon him for support. 36
Parenthetically, William claims that the
witnesses of Lucita are not credible because of
their relationship with her. We do not agree.
Relationship alone is not reason enough to
discredit and label a witness's testimony as
biased and unworthy of credence 37 and a
witness' relationship to one of the parties does
not automatically affect the veracity of his or
her testimony. 38 Considering the detailed
and straightforward testimonies given by
Linda Lim and Dr. Vicente Elinzano, bolstered
by the credence accorded them by the trial
court, the Court finds that their testimonies
are not tainted with bias.
William also posits that the real motive of
Lucita in filing the case for legal separation is
in order for her side of the family to gain
control of the conjugal properties; that Lucita
was willing to destroy his reputation by filing
the legal separation case just so her parents
and her siblings could control the properties
he worked hard for. The Court finds such
reasoning hard to believe. What benefit would
Lucita personally gain by pushing for her
parents' and siblings' financial interests at the
expense of her marriage? What is more
probable is that there truly exists a ground for
legal separation, a cause so strong, that
Lucita had to seek redress from the courts. As
aptly stated by the RTC, EDCTIa
. . . it would be unthinkable for her to throw
away this twenty years of relationship,
abandon the comforts of her home and be
separated from her children whom she loves,
if there exists no cause, which is already
beyond her endurance. 39
The claim of William that a decree of legal
separation would taint his reputation and
label him as a wife-beater and child-abuser
also does not elicit sympathy from this Court.
If there would be such a smear on his
reputation then it would not be because of
Lucita's decision to seek relief from the courts,
but because he gave Lucita reason to go to
court in the first place.
Also without merit is the argument of William
that since Lucita has abandoned the family, a
decree of legal separation should not be
granted, following Art. 56, par. (4) of the
Family Code which provides that legal
separation shall be denied when both parties
have given ground for legal separation. The
abandonment referred to by the Family Code
is abandonment without justifiable cause for
more than one year. 40 As it was established
that Lucita left William due to his abusive
conduct, such does not constitute
abandonment contemplated by the said
provision.
As a final note, we reiterate that our
Constitution is committed to the policy of
strengthening the family as a basic social
institution. 41 The Constitution itself however
does not establish the parameters of state
protection to marriage and the family, as it
remains the province of the legislature to
define all legal aspects of marriage and
prescribe the strategy and the modalities to
protect it and put into operation the
constitutional provisions that protect the
same. 42 With the enactment of the Family
Code, this has been accomplished as it defines
marriage and the family, spells out the
corresponding legal effects, imposes the
limitations that affect married and family life,
as well as prescribes the grounds for
declaration of nullity and those for legal
separation. 43 As Lucita has adequately
proven the presence of a ground for legal
separation, the Court has no reason but to
affirm the findings of the RTC and the CA, and
grant her the relief she is entitled to under the
law.
WHEREFORE, the petition is DENIED for lack
of merit. ESCTIA
Costs against petitioner.
SO ORDERED.
Panganiban, C.J., Ynares-Santiago, Callejo,
Sr. and Chico-Nazario, JJ., concur.
FIRST DIVISION
[G.R. No. 139789. July 19, 2001.]
IN THE MATTER OF THE PETITION FOR
HABEAS CORPUS OF POTENCIANO
ILUSORIO, ERLINDA K. ILUSORIO,
petitioner, vs. ERLINDA K. ILUSORIO-
BILDNER, SYLVIA K. ILUSORIO-YAP, JOHN
DOES and JANE DOES, respondents.
[G.R. No. 139808. July 19, 2001.]
POTENCIANO ILUSORIO, MA. ERLINDA I.
BILDNER and SYLVIA K. ILUSORIO,
petitioners, vs. HON. COURT OF APPEALS
and ERLINDA K. ILUSORIO, respondents.
Singson Valdez & Associates for E. Ilusorio.
Roxas Delos Reyes Laurel & Rosario for P.
Ilusorio
Agcaoili Law Offices for S. Ilusorio-Yap
Bunag Kapunan Migallos & Perez and Lino M.
Patajo for E. Bildner.
SYNOPSIS
This case stemmed from a petition for habeas
corpus filed by Erlinda K. Ilusorio before the
Court of Appeals to have custody of her
husband Potenciano Ilusorio in consortium.
The petition was dismissed by the appellate
court for lack of unlawful restraint or
detention of the subject. The appellate court,
however, gave visitation rights to Erlinda K.
Ilusorio. The dismissal of the petition for
habeas corpus was affirmed by the Supreme
Court. However, the appellate court's ruling
giving visitation rights to Erlinda K. Ilusorio
was nullified by the Court. CcAESI
Hence, this motion for reconsideration.
Erlinda contended that the facts mentioned in
the decision of the Court of Appeals were
erroneous and incomplete. She claimed that
Potenciano suffered from various ailments.
Thus, he did not have the mental capacity to
decide for himself. Erlinda argued that
Potenciano must be brought before the Court
so that his mental state could be determined.
Erlinda sought custody of her husband
contending, among others, that respondents
Lin and Sylvia, her daughters, were illegally
restraining Potenciano Ilusorio to fraudulently
deprive her of property rights out of pure
greed. She argued that since Potenciano
retired as director and officer of Baguio
Country Club and Philippine Oversees
Telecommunications, she would logically
assume his position and control. Yet Lina and
Sylvia were the ones controlling the
corporations.
The Court denied the motion for
reconsideration.
The Court was not convinced that Potenciano
Ilusorio was mentally incapacitated to choose
whether to see his wife or not. This is a
question of fact that has been decided in the
Court of Appeals.
As to whether the children were in fact taking
control of the corporations, the Court held
that these matters may be threshed out in a
separate proceeding, irrelevant in habeas
corpus.
Petitioner failed to sufficiently convince the
Court why it should not rely on the facts
found by the Court of Appeals. The hornbook
doctrine states that findings of fact of the
lower courts are conclusive on the Supreme
Court. It is not for the Court to weigh the
evidence all over again. Although there are
exceptions to the rule, Erlinda failed to show
that this was an exceptional circumstance.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE;
FINDINGS OF FACT OF THE LOWER COURT
ARE CONCLUSIVE ON THE SUPREME
COURT. Petitioner failed to sufficiently
convince the Court why we should not rely on
the facts found by the Court of Appeals.
Erlinda claimed that the facts mentioned in
the decision were erroneous and incomplete.
We see no reason why the High Court of the
land need go to such length. The hornbook
doctrine states that findings of fact of the
lower courts are conclusive on the Supreme
Court. We emphasize, it is not for the Court to
weigh evidence all over again. Although there
are exceptions to the rule, Erlinda failed to
show that this is an exceptional instance.
EIASDT
2. CIVIL LAW; FAMILY CODE;
MARRIAGE; MARITAL OBLIGATIONS. The
law provides that the husband and the wife
are obliged to live together, observe mutual
love, respect and fidelity. The sanction
therefor is the "spontaneous, mutual affection
between husband and wife and not any legal
mandate or court order" to enforce
consortium.
3. ID.; ID.; ID.; MARITAL UNION IS A
TWO-WAY PROCESS. Obviously, there was
absence of empathy between spouses Erlinda
and Potenciano, having separated from bed
and board since 1972. We defined empathy as
a shared feeling between husband and wife
experienced not only by having spontaneous
sexual intimacy but a deep sense of spiritual
communion. Marital union is a two-way
process. Marriage is definitely for two loving
adults who view the relationship with "amor
gignit amorem" respect, sacrifice and a
continuing commitment to togetherness,
conscious of its value as a sublime social
institution.
RESOLUTION
PARDO, J, p:
Once again we see the sad tale of a prominent
family shattered by conflicts on expectancy in
fabled fortune. aTAEHc
On March 11, 1999, Erlinda K. Ilusorio, the
matriarch who was so lovingly inseparable
from her husband some years ago, filed a
petition with the Court of Appeals 1 for habeas
corpus to have custody of her husband in
consortium.
On April 5, 1999, the Court of Appeals
promulgated its decision dismissing the
petition for lack of unlawful restraint or
detention of the subject, Potenciano Ilusorio.
AcDaEH
Thus, on October 11, 1999, Erlinda K. Ilusorio
filed with the Supreme Court an appeal via
certiorari pursuing her desire to have custody
of her husband Potenciano Ilusorio. 2 This
case was consolidated with another case 3
filed by Potenciano Ilusorio and his children,
Erlinda I. Bildner and Sylvia K. Ilusorio
appealing from the order giving visitation
rights to his wife, asserting that he never
refused to see her.
On May 12, 2000, we dismissed the petition
for habeas corpus 4 for lack of merit, and
granted the petition 5 to nullify the Court of
Appeals' ruling 6 giving visitation rights to
Erlinda K. Ilusorio. 7
What is now before the Court is Erlinda's
motion to reconsider the decision. 8
On September 20, 2000, we set the case for
preliminary conference on October 11, 2000,
at 10:00 a. m., without requiring the
mandatory presence of the parties.
In that conference, the Court laid down the
issues to be resolved, to wit:
(a) To determine the propriety of a physical
and medical examination of petitioner
Potenciano Ilusorio;
(b) Whether the same is relevant; and
SACTIH
(c) If relevant, how the Court will conduct
the same. 9
The parties extensively discussed the issues.
The Court, in its resolution, enjoined the
parties and their lawyers to initiate steps
towards an amicable settlement of the case
through mediation and other means.
On November 29, 2000, the Court noted the
manifestation and compliance of the parties
with the resolution of October 11, 2000. 10
On January 31, 2001, the Court denied
Erlinda Ilusorio's manifestation and motion
praying that Potenciano Ilusorio be produced
before the Court and be medically examined
by a team of medical experts appointed by the
Court. 11
On March 27, 2001, we denied with finality
Erlinda's motion to reconsider the Court's
order of January 31 , 2001. 12
The issues raised by Erlinda K. Ilusorio in her
motion for reconsideration are mere
reiterations of her arguments that have been
resolved in the decision.
Nevertheless, for emphasis, we shall discuss
the issues thus:
First. Erlinda K. Ilusorio claimed that she was
not compelling Potenciano to live with her in
consortium and that Potenciano's mental state
was not an issue. However, the very root
cause of the entire petition is her desire to
have her husband's custody. 13 Clearly,
Erlinda cannot now deny that she wanted
Potenciano Ilusorio to live with her.
Second. One reason why Erlinda K. Ilusorio
sought custody of her husband was that
respondents Lin and Sylvia were illegally
restraining Potenciano Ilusorio to fraudulently
deprive her of property rights out of pure
greed. 14 She claimed that her two children
were using their sick and frail father to sign
away Potenciano and Erlinda's property to
companies controlled by Lin and Sylvia. She
also argued that since Potenciano retired as
director and officer of Baguio Country Club
and Philippine Oversees Telecommunications,
she would logically assume his position and
control. Yet, Lin and Sylvia were the ones
controlling the corporations. 15 CHTAIc
The fact of illegal restraint has not been
proved during the hearing at the Court of
Appeals on March 23, 1999. 16 Potenciano
himself declared that he was not prevented by
his children from seeing anybody and that he
had no objection to seeing his wife and other
children whom he loved.
Erlinda highlighted that her husband suffered
from various ailments. Thus, Potenciano
Ilusorio did not have the mental capacity to
decide for himself. Hence, Erlinda argued that
Potenciano be brought before the Supreme
Court so that we could determine his mental
state.
We were not convinced that Potenciano
Ilusorio was mentally incapacitated to choose
whether to see his wife or not. Again, this is a
question of fact that has been decided in the
Court of Appeals.
As to whether the children were in fact taking
control of the corporation, these are matters
that may be threshed out in a separate
proceeding, irrelevant in habeas corpus.
Third. Petitioner failed to sufficiently convince
the Court why we should not rely on the facts
found by the Court of Appeals. Erlinda
claimed that the facts mentioned in the
decision were erroneous and incomplete. We
see no reason why the High Court of the land
need go to such length. The hornbook doctrine
states that findings of fact of the lower courts
are conclusive on the Supreme Court. 17 We
emphasize, it is not for the Court to weigh
evidence all over again. 18 Although there are
exceptions to the rule, 19 Erlinda failed to
show that this is an exceptional instance.
Fourth. Erlinda states that Article XII of the
1987 Constitution and Articles 68 and 69 of
the Family Code support her position that as
spouses, they (Potenciano and Erlinda) are
duty bound to live together and care for each
other. We agree.
The law provides that the husband and the
wife are obliged to live together, observe
mutual love, respect and fidelity. 20 The
sanction therefor is the "spontaneous, mutual
affection between husband and wife and not
any legal mandate or court order" to enforce
consortium. 21
Obviously, there was absence of empathy
between spouses Erlinda and Potenciano,
having separated from bed and board since
1972. We defined empathy as a shared feeling
between husband and wife experienced not
only by having spontaneous sexual intimacy
but a deep sense of spiritual communion.
Marital union is a two-way process.
Marriage is definitely for two loving adults who
view the relationship with "amor gignit
amorem" respect, sacrifice and a continuing
commitment to togetherness, conscious of its
value as a sublime social institution. 22
On June 28, 2001, Potenciano Ilusorio gave
his soul to the Almighty, his Creator and
Supreme Judge. Let his soul rest in peace and
his survivors continue the much prolonged
fracas ex aequo et bono. cCHETI
IN VIEW WHEREOF, we DENY Erlinda's
motion for reconsideration. At any rate, the
case has been rendered moot by the death of
subject.
SO ORDERED.
Davide, Jr., C.J., Puno, Kapunan and Ynares-
Santiago, JJ., concur.
EN BANC
[G.R. No. 182894. April 22, 2014.]
FE FLORO VALINO, petitioner, vs.
ROSARIO D. ADRIANO, FLORANTE D.
ADRIANO, RUBEN D. ADRIANO, MARIA
TERESA ADRIANO ONGOCO, VICTORIA
ADRIANO BAYONA, and LEAH ANTONETTE
D. ADRIANO, respondents.
DECISION
MENDOZA, J p:
Challenged in this petition is the October 2,
2006 Decision 1 and the May 9, 2008
Resolution 2 of the Court of Appeals (CA) in
CA-G.R. CV No. 61613, which reversed the
October 1, 1998 Decision 3 of the Regional
Trial Court, Branch 77, Quezon City (RTC)
which ruled that petitioner Fe Floro Valino
(Valino) was entitled to the remains of the
decedent.
The Facts:
Atty. Adriano Adriano (Atty. Adriano), a
partner in the Pelaez Adriano and Gregorio
Law Office, married respondent Rosario
Adriano (Rosario) on November 15, 1955. The
couple had two (2) sons, Florante and Ruben
Adriano; three (3) daughters, Rosario, Victoria
and Maria Teresa; and one (1) adopted
daughter, Leah Antonette. HSTAcI
The marriage of Atty. Adriano and Rosario,
however, turned sour and they were
eventually separated-in-fact. Years later, Atty.
Adriano courted Valino, one of his clients,
until they decided to live together as husband
and wife. Despite such arrangement, he
continued to provide financial support to
Rosario and their children (respondents).
In 1992, Atty. Adriano died of acute
emphysema. At that time, Rosario was in the
United States spending Christmas with her
children. As none of the family members was
around, Valino took it upon herself to
shoulder the funeral and burial expenses for
Atty. Adriano. When Rosario learned about the
death of her husband, she immediately called
Valino and requested that she delay the
interment for a few days but her request was
not heeded. The remains of Atty. Adriano were
then interred at the mausoleum of the family
of Valino at the Manila Memorial Park.
Respondents were not able to attend the
interment.
Claiming that they were deprived of the
chance to view the remains of Atty. Adriano
before he was buried and that his burial at the
Manila Memorial Park was contrary to his
wishes, respondents commenced suit against
Valino praying that they be indemnified for
actual, moral and exemplary damages and
attorney's fees and that the remains of Atty.
Adriano be exhumed and transferred to the
family plot at the Holy Cross Memorial
Cemetery in Novaliches, Quezon City.
In her defense, Valino countered that Rosario
and Atty. Adriano had been separated for
more than twenty (20) years before he courted
her. Valino claimed that throughout the time
they were together, he had introduced her to
his friends and associates as his wife.
Although they were living together, Valino
admitted that he never forgot his obligation to
support the respondents. She contended that,
unlike Rosario, she took good care of Atty.
Adriano and paid for all his medical expenses
when he got seriously ill. She also claimed
that despite knowing that Atty. Adriano was in
a coma and dying, Rosario still left for the
United States. According to Valino, it was
Atty. Adriano's last wish that his remains be
interred in the Valino family mausoleum at
the Manila Memorial Park.
Valino further claimed that she had suffered
damages as result of the suit brought by
respondents. Thus, she prayed that she be
awarded moral and exemplary damages and
attorney's fees.
Decision of the RTC
The RTC dismissed the complaint of
respondents for lack of merit as well as the
counterclaim of Valino after it found them to
have not been sufficiently proven. DTIaHE
The RTC opined that because Valino lived with
Atty. Adriano for a very long time, she knew
very well that it was his wish to be buried at
the Manila Memorial Park. Taking into
consideration the fact that Rosario left for the
United States at the time that he was fighting
his illness, the trial court concluded that
Rosario did not show love and care for him.
Considering also that it was Valino who
performed all the duties and responsibilities of
a wife, the RTC wrote that it could be
reasonably presumed that he wished to be
buried in the Valino family mausoleum. 4
In disposing of the case, the RTC noted that
the exhumation and the transfer of the body of
Atty. Adriano to the Adriano family plot at the
Holy Cross Memorial Cemetery in Novaliches,
Quezon City, would not serve any useful
purpose and so he should be spared and
respected. 5
Decision of the CA
On appeal, the CA reversed and set aside the
RTC decision and directed Valino to have the
remains of Atty. Adriano exhumed at the
expense of respondents. It likewise directed
respondents, at their expense, to transfer,
transport and inter the remains of the
decedent in the family plot at the Holy Cross
Memorial Park in Novaliches, Quezon City.
In reaching said determination, the CA
explained that Rosario, being the legal wife,
was entitled to the custody of the remains of
her deceased husband. Citing Article 305 of
the New Civil Code in relation to Article 199 of
the Family Code, it was the considered view of
the appellate court that the law gave the
surviving spouse not only the duty but also
the right to make arrangements for the funeral
of her husband. For the CA, Rosario was still
entitled to such right on the ground of her
subsisting marriage with Atty. Adriano at the
time of the latter's death, notwithstanding
their 30-year separation in fact.
Like the RTC, however, the CA did not award
damages in favor of respondents due to the
good intentions shown by Valino in giving the
deceased a decent burial when the wife and
the family were in the United States. All other
claims for damages were similarly dismissed.
The Sole Issue
The lone legal issue in this petition is who
between Rosario and Valino is entitled to the
remains of Atty. Adriano.
The Court's Ruling
Article 305 of the Civil Code, in relation to
what is now Article 199 6 of the Family Code,
specifies the persons who have the right and
duty to make funeral arrangements for the
deceased. Thus:
Art. 305. The duty and the right to make
arrangements for the funeral of a relative shall
be in accordance with the order established
for support, under Article 294. In case of
descendants of the same degree, or of brothers
and sisters, the oldest shall be preferred. In
case of ascendants, the paternal shall have a
better right. [Emphases supplied]
Art. 199. Whenever two or more persons
are obliged to give support, the liability shall
devolve upon the following persons in the
order herein provided: aScIAC
(1) The spouse;
(2) The descendants in the nearest degree;
(3) The ascendants in the nearest degree;
and
(4) The brothers and sisters. (294a)
[Emphasis supplied]
Further, Article 308 of the Civil Code provides:
Art. 308. No human remains shall be
retained, interred, disposed of or exhumed
without the consent of the persons mentioned
in Articles 294 and 305. [Emphases supplied]
In this connection, Section 1103 of the
Revised Administrative Code provides:
Section 1103. Persons charged with the
duty of burial. The immediate duty of
burying the body of a deceased person,
regardless of the ultimate liability for the
expense thereof, shall devolve upon the
persons herein below specified:
(a) If the deceased was a married man or
woman, the duty of the burial shall devolve
upon the surviving spouse if he or she
possesses sufficient means to pay the
necessary expenses;
xxx xxx xxx.
[Emphases supplied]
From the aforecited provisions, it is
undeniable that the law simply confines the
right and duty to make funeral arrangements
to the members of the family to the exclusion
of one's common law partner. In Tomas
Eugenio, Sr. v. Velez, 7 a petition for habeas
corpus was filed by the brothers and sisters of
the late Vitaliana Vargas against her lover,
Tomas Eugenio, Sr., alleging that the latter
forcibly took her and confined her in his
residence. It appearing that she already died
of heart failure due to toxemia of pregnancy,
Tomas Eugenio, Sr. sought the dismissal of
the petition for lack of jurisdiction and
claimed the right to bury the deceased, as the
common-law husband.
In its decision, the Court resolved that the
trial court continued to have jurisdiction over
the case notwithstanding the death of
Vitaliana Vargas. As to the claim of Tomas
Eugenio, Sr. that he should be considered a
"spouse" having the right and duty to make
funeral arrangements for his common-law
wife, the Court ruled:
. . . Indeed, Philippine Law does not recognize
common law marriages. A man and woman
not legally married who cohabit for many
years as husband and wife, who represent
themselves to the public as husband and wife,
and who are reputed to be husband and wife
in the community where they live may be
considered legally married in common law
jurisdictions but not in the Philippines.
SCaIcA
While it is true that our laws do not just brush
aside the fact that such relationships are
present in our society, and that they produce
a community of properties and interests which
is governed by law, authority exists in case
law to the effect that such form of co-
ownership requires that the man and woman
living together must not in any way be
incapacitated to contract marriage. In any
case, herein petitioner has a subsisting
marriage with another woman, a legal
impediment which disqualified him from even
legally marrying Vitaliana. In Santero vs. CFI
of Cavite, the Court, thru Mr. Justice Paras,
interpreting Art. 188 of the Civil Code
(Support of Surviving Spouse and Children
During Liquidation of Inventoried Property)
stated: "Be it noted, however, that with respect
to 'spouse,' the same must be the legitimate
'spouse' (not common-law spouses)."
There is a view that under Article 332 of the
Revised Penal Code, the term "spouse"
embraces common law relation for purposes of
exemption from criminal liability in cases of
theft, swindling and malicious mischief
committed or caused mutually by spouses.
The Penal Code article, it is said, makes no
distinction between a couple whose
cohabitation is sanctioned by a sacrament or
legal tie and another who are husband and
wife de facto. But this view cannot even apply
to the facts of the case at bar. We hold that
the provisions of the Civil Code, unless
expressly providing to the contrary as in
Article 144, when referring to a "spouse"
contemplate a lawfully wedded spouse.
Petitioner vis-a-vis Vitaliana was not a
lawfully-wedded spouse to her; in fact, he was
not legally capacitated to marry her in her
lifetime. 8 [Emphases supplied]
As applied to this case, it is clear that the law
gives the right and duty to make funeral
arrangements to Rosario, she being the
surviving legal wife of Atty. Adriano. The fact
that she was living separately from her
husband and was in the United States when
he died has no controlling significance. To say
that Rosario had, in effect, waived or
renounced, expressly or impliedly, her right
and duty to make arrangements for the
funeral of her deceased husband is baseless.
The right and duty to make funeral
arrangements, like any other right, will not be
considered as having been waived or
renounced, except upon clear and satisfactory
proof of conduct indicative of a free and
voluntary intent to that end. 9 While there
was disaffection between Atty. Adriano and
Rosario and their children when he was still
alive, the Court also recognizes that human
compassion, more often than not, opens the
door to mercy and forgiveness once a family
member joins his Creator. Notably, it is an
undisputed fact that the respondents wasted
no time in making frantic pleas to Valino for
the delay of the interment for a few days so
they could attend the service and view the
remains of the deceased. As soon as they
came to know about Atty. Adriano's death in
the morning of December 19, 1992 (December
20, 1992 in the Philippines), the respondents
immediately contacted Valino and the
Arlington Memorial Chapel to express their
request, but to no avail.
Valino insists that the expressed wishes of the
deceased should nevertheless prevail
pursuant to Article 307 of the Civil Code.
Valino's own testimony that it was Atty.
Adriano's wish to be buried in their family plot
is being relied upon heavily. It should be
noted, however, that other than Valino's claim
that Atty. Adriano wished to be buried at the
Manila Memorial Park, no other evidence was
presented to corroborate such claim.
Considering that Rosario equally claims that
Atty. Adriano wished to be buried in the
Adriano family plot in Novaliches, it becomes
apparent that the supposed burial wish of
Atty. Adriano was unclear and undefinite.
Considering this ambiguity as to the true
wishes of the deceased, it is the law that
supplies the presumption as to his intent. No
presumption can be said to have been created
in Valino's favor, solely on account of a long-
time relationship with Atty. Adriano.
cCaEDA
Moreover, it cannot be surmised that just
because Rosario was unavailable to bury her
husband when she died, she had already
renounced her right to do so. Verily, in the
same vein that the right and duty to make
funeral arrangements will not be considered
as having been waived or renounced, the right
to deprive a legitimate spouse of her legal right
to bury the remains of her deceased husband
should not be readily presumed to have been
exercised, except upon clear and satisfactory
proof of conduct indicative of a free and
voluntary intent of the deceased to that end.
Should there be any doubt as to the true
intent of the deceased, the law favors the
legitimate family. Here, Rosario's keenness to
exercise the rights and obligations accorded to
the legal wife was even bolstered by the fact
that she was joined by the children in this
case.
Even assuming, ex gratia argumenti, that
Atty. Adriano truly wished to be buried in the
Valino family plot at the Manila Memorial
Park, the result remains the same. Article 307
of the Civil Code provides:
Art. 307. The funeral shall be in
accordance with the expressed wishes of the
deceased. In the absence of such expression,
his religious beliefs or affiliation shall
determine the funeral rites. In case of doubt,
the form of the funeral shall be decided upon
by the person obliged to make arrangements
for the same, after consulting the other
members of the family.
From its terms, it is apparent that Article 307
simply seeks to prescribe the "form of the
funeral rites" that should govern in the burial
of the deceased. As thoroughly explained
earlier, the right and duty to make funeral
arrangements reside in the persons specified
in Article 305 in relation to Article 199 of the
Family Code. Even if Article 307 were to be
interpreted to include the place of burial
among those on which the wishes of the
deceased shall be followed, Dr. Arturo M.
Tolentino (Dr. Tolentino), an eminent
authority on civil law, commented that it is
generally recognized that any inferences as to
the wishes of the deceased should be
established by some form of testamentary
disposition. 10 As Article 307 itself provides,
the wishes of the deceased must be expressly
provided. It cannot be inferred lightly, such as
from the circumstance that Atty. Adriano
spent his last remaining days with Valino. It
bears stressing once more that other than
Valino's claim that Atty. Adriano wished to be
buried at the Valino family plot, no other
evidence was presented to corroborate it.
At any rate, it should be remembered that the
wishes of the decedent with respect to his
funeral are not absolute. As Dr. Tolentino
further wrote:
The dispositions or wishes of the deceased in
relation to his funeral, must not be contrary to
law. They must not violate the legal and
reglementary provisions concerning funerals
and the disposition of the remains, whether as
regards the time and manner of disposition, or
the place of burial, or the ceremony to be
observed. 11 [Emphases supplied]
In this case, the wishes of the deceased with
respect to his funeral are limited by Article
305 of the Civil Code in relation to Article 199
of the Family Code, and subject the same to
those charged with the right and duty to make
the proper arrangements to bury the remains
of their loved-one. As aptly explained by the
appellate court in its disquisition:
The testimony of defendant-appellee Fe Floro
Valino that it was the oral wish of Atty.
Adriano Adriano that he be interred at the
Floro family's mausoleum at the Manila
Memorial Park, must bend to the provisions of
the law. Even assuming arguendo that it was
the express wish of the deceased to be interred
at the Manila Memorial Park, still, the law
grants the duty and the right to decide what to
do with the remains to the wife, in this case,
plaintiff-appellant Rosario D. Adriano, as the
surviving spouse, and not to defendant-
appellee Fe Floro Valino, who is not even in
the list of those legally preferred, despite the
fact that her intentions may have been very
commendable. The law does not even consider
the emotional fact that husband and wife had,
in this case at bench, been separated-in-fact
and had been living apart for more than 30
years. 12 aEHIDT
As for Valino's contention that there is no
point in exhuming and transferring the
remains of Atty. Adriano, it should be said
that the burial of his remains in a place other
than the Adriano family plot in Novaliches
runs counter to the wishes of his family. It
does not only violate their right provided by
law, but it also disrespects the family because
the remains of the patriarch are buried in the
family plot of his live-in partner.
It is generally recognized that the corpse of an
individual is outside the commerce of man.
However, the law recognizes that a certain
right of possession over the corpse exists, for
the purpose of a decent burial, and for the
exclusion of the intrusion by third persons
who have no legitimate interest in it. This
quasi-property right, arising out of the duty of
those obligated by law to bury their dead, also
authorizes them to take possession of the
dead body for purposes of burial to have it
remain in its final resting place, or to even
transfer it to a proper place where the memory
of the dead may receive the respect of the
living. This is a family right. There can be no
doubt that persons having this right may
recover the corpse from third persons. 13
All this notwithstanding, the Court finds
laudable the acts of Valino in taking care of
Atty. Adriano during his final moments and
giving him a proper burial. For her sacrifices,
it would indeed be unkind to assess actual or
moral damages against her. As aptly explained
by the CA:
The trial court found that there was good faith
on the part of defendant-appellee Fe Floro
Valino, who, having lived with Atty. Adriano
after he was separated in fact from his wife,
lovingly and caringly took care of the well-
being of Atty. Adriano Adriano * while he was
alive and even took care of his remains when
he had died.
On the issue of damages, plaintiffs-appellants
are not entitled to actual damages. Defendant-
appellee Fe Floro Valino had all the good
intentions in giving the remains of Atty.
Adriano a decent burial when the wife and
family were all in the United States and could
not attend to his burial. Actual damages are
those awarded in satisfaction of, or in
recompense for, loss or injury sustained. To
be recoverable, they must not only be capable
of proof but must actually be proven with a
reasonable degree of certainty. In this case at
bench, there was no iota of evidence presented
to justify award of actual damages. EADCHS
Plaintiffs-appellants are not also entitled to
moral and exemplary damages. Moral
damages may be recovered only if the plaintiff
is able to satisfactorily prove the existence of
the factual basis for the damages and its
causal connection with the acts complained of
because moral damages although incapable of
pecuniary estimation are designed not to
impose a penalty but to compensate for injury
sustained and actual damages suffered. No
injury was caused to plaintiffs-appellants, nor
was any intended by anyone in this case.
Exemplary damages, on the other hand, may
only be awarded if claimant is able to
establish his right to moral, temperate,
liquidated or compensatory damages.
Unfortunately, neither of the requirements to
sustain an award for either of these damages
would appear to have been adequately
established by plaintiffs-appellants.
As regards the award of attorney's fees, it is
an accepted doctrine that the award thereof as
an item of damages is the exception rather
than the rule, and counsel's fees are not to be
awarded every time a party wins a suit. The
power of the court to award attorney's fees
under Article 2208 of the New Civil Code
demands factual, legal and equitable
justification, without which the award is a
conclusion without a premise, its basis being
improperly left to speculation and conjecture.
In this case, we have searched but found
nothing in plaintiffs-appellants' suit that
justifies the award of attorney's fees. 14
Finally, it should be said that controversies as
to who should make arrangements for the
funeral of a deceased have often aggravated
the bereavement of the family and disturbed
the proper solemnity which should prevail at
every funeral. It is for the purpose of
preventing such controversies that the Code
Commission saw it best to include the
provisions on "Funerals." 15
WHEREFORE, the petition is DENIED.
SO ORDERED.
Sereno, C.J., Carpio, Velasco, Jr., Leonardo-
de Castro, Brion, Peralta, Bersamin, Del
Castillo, Villarama, Jr., Perez, Reyes and
Perlas-Bernabe, JJ., concur.
Abad, J., I join Justice Leonen's dissent.
Leonen, J., I dissent. See separate opinion.
Separate Opinions
LEONEN, J., dissenting:
We will all die. But what may matter to many
of us is how we live and how our life is kept in
the memories of those we leave behind. This
case is not about whether a common-law wife
has more rights over the corpse of the
husband than the latter's estranged legal
spouse. This case is about which between
them knows his wishes.
Therefore, I respectfully disagree with the
ponencia in denying this petition.
I vote to set aside the decision of the Court of
Appeals dated October 2, 2006 in CA-G.R. CV
No. 61613, which directs petitioner Fe to have
the remains of Atty. Lope Adriano exhumed,
and orders respondents to transfer, transport,
and inter, at their expense, the remains of the
decedent from Manila Memorial Park to the
family plot in Holy Cross Memorial Park in
Novaliches, Quezon City. I vote to sustain the
decision dated October 1, 1998, of the
Regional Trial Court of Quezon City, Branch
77 in Civil Case No. Q-93-15288, dismissing
respondents' complaint for damages. ScHAIT
I disagree with the position that in the
determination of how Atty. Adriano should be
buried, "the law gives the right and duty to
make funeral arrangements to Rosario, she
being the surviving legal wife of Atty. Adriano,"
1 in accordance with Article 305 2 of the Civil
Code in relation to Article 199 3 of the Family
Code.
I am of the opinion that Article 305 should
only be considered when, first, the deceased
left no explicit instructions on how he wishes
to be interred, and second, when none among
the deceased's surviving relations are willing
to make the funeral arrangements and a
conflict arises. In these situations, the conflict
must be settled according to the order of
preference stated in Article 199. In any other
case, it should be the express wishes of the
deceased which should take precedence.
This view, in fact, is embodied in Article 307 of
the Civil Code, which states:
Article 307. The funeral shall be in
accordance with the expressed wishes of the
deceased. In the absence of such
expression, his religious beliefs or affiliation
shall determine the funeral rites. In case of
doubt, the form of the funeral shall be decided
upon by the person obliged to make
arrangements for the same, after consulting
the other members of the family. (Emphasis
supplied)
It is the ponencia's opinion that the wishes of
the deceased contemplated in Article 307 only
governs the "form of the funeral" and that the
duty and, more specifically, the right to make
arrangements for the funeral remains with the
persons specified in Article 305 in relation to
Article 199. It is my submission, however, that
Article 307 should be interpreted to mean that
the right to determine one's funeral, including
the right to determine how and where one
wishes to be buried, remains with the
deceased, and it is only in the absence of his
express wishes, or in the absence of his
religious beliefs and affiliations, or if there is
doubt as to his wishes, that other persons
may assume the right to decide the funeral
arrangements.
This right, like other rights pointed out by the
ponencia, 4 must not be considered waived or
renounced except upon clear and satisfactory
proof of conduct indicative of a free and
voluntary intent to that end. There is neither
indication nor have there been any allegations
that Atty. Adriano did not freely and
voluntarily relay his last wishes to his
common-law wife, petitioner Fe. Atty. Adriano,
therefore, did not waive his right to determine
where he should be buried, in favor of the
persons indicated in Article 305 in relation to
Article 199. CTEacH
Accordingly, it was improper to cite in the
ponencia Tomas Eugenio, Sr. v. Judge Velez. 5
In Eugenio, Tomas Eugenio, Sr. claimed the
right to bury his common-law wife, arguing
that he should be considered a "spouse" under
Article 305 in relation to Article 199. The
assertion led this court to expound on the
interpretation of Article 305 in relation to
Article 199 and conclude that:
. . . . Indeed, Philippine Law does not
recognize common law marriages. A man and
woman not legally married who cohabit for
many years as husband and wife, who
represent themselves to the public as
husband and wife, and who are reputed to be
husband and wife in the community where
they live may be considered legally "married"
in common law jurisdictions but not in the
Philippines.
While it is true that our laws do not just brush
aside the fact that such relationships are
present in our society, and that they produce
a community of properties and interests which
is governed by law, authority exists in case
law to the effect that such form of co-
ownership requires that the man and woman
living together must not in any way be
incapacitated to contract marriage. In any
case, herein petitioner has a subsisting
marriage with another woman, a legal
impediment which disqualified him from even
legally marrying Vitaliana. In Santero vs. CFI
of Cavite, the Court, thru Mr. Justice Paras,
interpreting Art. 188 of the Civil Code
(Support of Surviving Spouse and Children
During Liquidation of Inventoried Property)
stated: "Be it noted however that with respect
to 'spouse', the same must be the legitimate
'spouse' (not common-law spouses. . .)."
There is a view that under Article 332 of the
Revised Penal Code, the term "spouse"
embraces common law relation for purposes of
exemption from criminal liability in cases of
theft, swindling and malicious mischief
committed or caused mutually by spouses.
The Penal Code article, it is said, makes no
distinction between a couple whose
cohabitation is sanctioned by a sacrament or
legal tie and another who are husband and
wife de facto. But this view cannot even apply
to the facts of the case at bar. We hold that
the provisions of the Civil Code, unless
expressly providing to the contrary as in
Article 144, when referring to a "spouse"
contemplate a lawfully wedded spouse.
Petitioner vis-a-vis Vitaliana was not a
lawfully-wedded spouse to her; in fact, he was
not legally capacitated to marry her in her
lifetime. 6
In the present case, petitioner Fe has not
asserted that she be considered a "spouse"
under Article 305 in relation to Article 199
with the right and the duty to make funeral
arrangements for Atty. Adriano. What she
asserts is that she was Atty. Adriano's
constant companion for a long time who was
constantly by his side, showing him the love
and devotion as a wife would have, who took
care of him in his final moments and gave him
a proper burial. As such, there is a
presumption that she would be in the best
position to relay his final wishes. DaScAI
The trial court in its decision dated October 1,
1998 reached the same conclusion, thus:
Atty. Lope Adriano's wish was established at
the trial and shown in the following testimony
of the defendant, to wit:
"ATTY. PIZARRAS:
Madam witness, what was the wish of
Atty. Lope Adriano regarding his burial?
WITNESS:
 He wanted to be buried at Manila grants us the autonomy or the space to define
Memorial. who we are. Upon our death, the law does not
cease to respect our earned autonomy. Rather,
Q: Why do you say that? it gives space for us to speak through the
A: We have discussed it long before. agency of she who may have sat at our
bedside as we suffered through a lingering
Q: When did you first discuss this? illness. HDIaET

A: The first time we went to Manila I am of the view that it is that love and caring
Memorial. He wanted that his lawn type lot be which should be rewarded with the honor of
upgraded to estate type. He doesn't want that putting us in that place where we mark our
people will step on his grave. physical presence for the last time and where
we will be eternally remembered.
Q: What happened to this request if his
lawn type lot to be upgraded to estate type? ACCORDINGLY, the petition should be
GRANTED. The decision of the Court of
A: It did not take long. I had it upgraded." Appeals in CA-G.R. CV No. 61613, reversing
(TSN, May 7, 1997, pp. 4-5; the October 1, 1998 decision of the Regional
underscoring supplied) Trial Court, Branch 77, Quezon City, must be
SET ASIDE.
This crucial fact remained unrefuted.

Moreover, considering the very, very long time

that the defendant and the deceased lived like
husband and wife prior to his death, it can be
reasonably assumed that it is the defendant
who really knows the wishes of the deceased.
And it appears that it was the express wish of
the deceased that he be interred at the Manila
Memorial Park. 7

The ponencia also noted there was "animosity"

between Atty. Adriano and respondents when
he was still alive. He and his legal spouse,
respondent Rosario, have been separated-in-
fact for more than thirty (30) years, and he
has not been in contact with his children, the
other respondents, for about the same period
of time. They did not even visit him when he
fell ill and was on his deathbed; it was only
after he died that they came, asserting their
rights to his remains.

It is unfortunate that the ponencia would

rather uphold the wishes of his estranged
family rather than give the deceased his final
request. Part of life is the ability to control
how one wishes to be memorialized, and such
right should remain with the deceased. It is
only when the deceased has not left any
express instructions that the right is given to
the persons specified under the law.

Given the circumstances, the remains of Atty.

Adriano should remain in the Floro family
mausoleum at the Manila Memorial Park.

The law reaches into much of our lives while

we live. It constitutes and frames most of our
actions. But at the same time, the law also
SECOND DIVISION
[G.R. No. 182839. June 2, 2014.]
PHILIPPINE NATIONAL BANK, petitioner,
vs. JOSE GARCIA and CHILDREN NORA
GARCIA, JOSE GARCIA, JR., BOBBY
GARCIA and JIMMY GARCIA and HEIRS OF
ROGELIO GARCIA NAMELY: CELEDONIO
GARCIA, DANILO GARCIA, ELSA GARCIA,
FERMIN GARCIA, HEHERSON GARCIA,
GREGORIO GARCIA, IMELDA GARCIA and
JANE GARCIA, respondents.
DECISION
BRION, J p:
We resolve this petition for review on certiorari
1 assailing the decision 2 dated September 26,
2007 and the resolution 3 dated May 6, 2008
of the Court of Appeals (CA) in CA-G.R. CV No.
71356. DAEIHT
These challenged CA rulings reversed and set
aside the decision of the Regional Trial Court
(RTC), Branch 23, Roxas, Isabela, dismissing
Civil Case No. Branch 23-500-96 for lack of
cause of action.
The Factual Background
The facts of the case, gathered from the
records, are briefly summarized below.
The subject of the present case is a parcel of
residential land with all its improvements
(subject property) located in Barrio Olango,
Mallig, Isabela. The land is covered by
Transfer Certificate of Title (TCT) No. T-44422
under the name of Jose Garcia Sr. (Jose Sr.)
who acquired the subject property during his
marriage with Ligaya Garcia. Ligaya died on
January 21, 1987.
The marriage of Jose Sr. and Ligaya produced
the following children: Nora, Jose Jr., Bobby
and Jimmy, all surnamed Garcia, who are the
respondents in the present case. AIcaDC
Sometime in 1989, the spouses Rogelio and
Celedonia Garcia (Spouses Garcia) obtained a
loan facility from the petitioner, Philippine
National Bank (petitioner bank), initially for
P150,000.00. The loan was secured by a Real
Estate Mortgage over their property covered by
TCT No. 177585. The spouses Garcia
increased their loan to P220,000.00 and
eventually to P600,000.00. As security for the
increased loan, they offered their property
covered by TCT No. 75324 and the subject
property covered by TCT No. T-44422.
Jose Sr. agreed to accommodate the spouses
Garcia by offering the subject property as
additional collateral security for the latter's
increased loan. For this purpose, Jose Sr.
executed Special Powers of Attorney (SPAs)
dated April 14, 1992 and October 6, 1993,
respectively, expressly authorizing the
Spouses Garcia to apply for, borrow, or secure
any loan from the petitioner bank, and to
convey and transfer the subject property by
way of mortgage. Jose Sr. also executed an
Amendment of Real Estate Mortgage in favor
of the petitioner bank. The SPAs and the
Amendment of Real Estate Mortgage are both
inscribed on TCT No. T-44422. All of these
transactions, however, were without the
knowledge and consent of Jose Sr.'s children.
SEcITC
On maturity of the loan on April 20, 1994, the
spouses Garcia failed to pay their loan to the
petitioner bank despite repeated demands.
On January 12, 1996, the respondents filed
before the RTC a Complaint for Nullity of the
Amendment of Real Estate Mortgage, Damages
with Preliminary Injunction against the
spouses Garcia and the petitioner bank. They
claimed that the Amendment of Real Estate
Mortgage was null and void as to respondents
Nora, Jose Jr., Bobby and Jimmy as they were
not parties to the contract. EcIaTA
The respondents alleged that the subject
property was a conjugal property of Jose Sr.
and his deceased spouse, Ligaya, as they
acquired the subject property during their
marriage; that upon Ligaya's death, Jose Sr.,
together with his children Nora, Jose Jr.,
Bobby and Jimmy, by law, became owners pro
indiviso of the subject property; that the
petitioner bank was at fault for not including
Jose Sr. as payee to the check representing
the loan despite its knowledge that Jose Sr.
was a signatory to the real estate mortgage;
that the real estate mortgage executed by Jose
Sr. could not bind his children as they did not
give their consent or approval to the
encumbrance; and that the real estate
mortgage was also void as to Jose Sr. since he
never benefitted from the loan.
In their answer, the Spouses Garcia alleged
that Jose Sr. was indebted to them in the
amount of P133,800.00. To settle this
indebtedness, Jose Sr. volunteered to give the
subject property as additional security for
their (the Garcias') loan to the petitioner bank.
aESICD
The petitioner bank, on the other hand,
claimed that the mortgage was made in good
faith and for value, and maintained that the
respondents' complaint stated no cause of
action against it. It alleged that the real estate
mortgage over the properties was duly
registered and inscribed on their titles and
was thus binding on the whole world.
In the course of the proceedings, Nora, Jose
Jr., Bobby and Jimmy executed an SPA dated
May 31, 1996 authorizing Jose Sr. to act as
their attorney-in-fact during the pretrial of the
case. AHCTEa
The Ruling of the RTC
The RTC dismissed the complaint for lack of
cause of action. The court held that the
subject property was a conjugal property since
it was acquired by Jose Sr. during his
marriage with his now deceased wife. As a
conjugal property, it is presumed that upon
the death of his spouse, one-half of the
property passed on to Jose Sr., while the other
half went to Jose and his children as co-
owners and as forced heirs of his deceased
spouse. Without the consent of the children,
the trial court ruled that the conjugal property
could only be transferred or encumbered to
the extent of Jose Sr.'s share in the conjugal
partnership, plus his share as an heir in the
other half pertaining to the estate of his
deceased spouse.
The RTC nevertheless declared that by virtue
of the SPA executed by Nora, Jose Jr., Bobby
and Jimmy in this suit, they are already
estopped from questioning the mortgage and
from alleging lack of consent or knowledge in
the transaction. It held Jose Sr. liable as an
accommodation party and upheld the
petitioner bank's right to collect the debt.
The respondents disagreed with the RTC
ruling and elevated the case to the CA via an
ordinary appeal. AHDTIE
The Ruling of the CA
On September 26, 2007, the CA upheld the
trial court's finding that the subject property
was conjugal, but reversed and set aside its
ruling in so far as it declared valid and
binding the Amendment of Real Estate
Mortgage between the petitioner bank, on one
hand, and the spouses Garcia and Jose Sr.,
on the other hand, with respect to
respondents Nora, Jose Jr., Bobby and
Jimmy. Relying on the Court's ruling in
Nufable v. Nufable, 4 the CA ruled that the
encumbrance Jose Sr. made over the entire
conjugal property, without his children's
conformity, was null and void because a mere
part owner could not alienate the shares of the
other co-owners.
The CA also declared that the conjugal
property could only be liable to the extent of
Jose Sr.'s shares; Jose Sr.'s acts could not
affect his children's pro-indiviso shares in the
subject property. It disagreed with the trial
court's estoppel theory and held that their
execution of the SPA should not be construed
as acquiescence to the mortgage transaction.
Lastly, it ruled that Jose Sr. could not escape
liability from the mortgage since he voluntarily
bound himself as the Spouses Garcia's
accommodation mortgagor. HSCAIT
The petition
The petitioner bank disputes the CA's finding
that the subject property was conjugal in
nature. It argues that, as can be gleaned from
TCT No. T-44422, the subject property was
registered in the name of Jose Sr. alone, who
was described in the title as "widower" and not
"married." The petitioner bank posits that as a
mortgagee in good faith, it had the right to rely
on the mortgagor's certificate of title; in the
absence of any indication that could arouse
suspicion, it had no obligation to undertake
further investigation and verify whether the
property was conjugal or was acquired during
marriage or thereafter.
Since the subject property belonged to Jose
Sr., insofar as petitioner bank as mortgagee
was concerned, Jose Sr. had the right under
Article 428 of the Civil Code to mortgage it
without the consent of his children.
Accordingly, the mortgage in its entirety
should be declared valid.
The Comment
The respondents state that the issues raised
by petitioner bank are essentially factual;
hence, they are beyond the competence of this
Court in a petition for review. They submit
that in a certiorari petition under Rule 45 of
the Rules of Court, only questions of law may
be entertained because the Court is not a trier
of facts.
The Court's Ruling
We deny the petition for lack of merit.
The petition before us raises both questions of
fact and of law. Whether petitioner bank is a
mortgagee in good faith and for value and
whether the subject property was conjugal,
are factual issues that this Court cannot look
into as our examination would entail going
into factual matters and records of the case.
In Rule 45 petitions, only questions of law
may be put into issue. Questions of fact
cannot be entertained. 5 EITcaD
Although there are exceptions to the rule that
only questions of law may be raised in a
petition for certiorari, the petitioner bank
failed to show that this case falls under any of
the established exceptions. Too, since the CA
partially affirmed the findings of the trial court
and absent any indication that these courts
committed a serious error in its findings, this
Court is bound by these courts' findings. 6
Moreover, even if we were to review the factual
issues raised by the petitioner bank, we still
find no reason to depart from the CA's ruling.
DSEIcT
The Subject Property is Conjugal
a. All property acquired during
marriage is presumed conjugal
Since Jose Sr. and Ligaya were married prior
to the effectivity of the Family Code, their
property relations were governed by the
conjugal partnership of gains as provided
under Article 119 of the Civil Code. Under
Article 160 of the Civil Code, "all property of
the marriage is presumed to belong to the
conjugal partnership, unless it can be proven
that it pertains exclusively to the husband or
to the wife."
In his testimony, Jose Sr. admitted that at the
time he acquired the land through sale, he
was already married. The material portion of
his testimony is as follows:
Q: Upon the death of your wife did you
and your wife ever own a piece of land?
A: Yes, sir.
Q: Where is that land situated?
A: In Centro, District 2, Mallig[,] Isabela.
Q: Is that land titled in your names?
A: Yes, sir. ACcEHI
xxx xxx xxx
Q: You and your wife acquired that piece
of land?
A: Yes, sir.
xxx xxx xxx
Q: May we know from you[,] Mr. Witness,
how did you acquire this parcel of land
presently embraced and covered by TCT No. T-
44422?
A: I purchased that piece of land from the
Baniqued Family during my incumbency as
Municipal Mayor, sir.
Q: What was your civil status at the time
you purchased that piece of land?
A: I was already married, sir. (Emphasis
ours, TSN, July 24, 1997, Jose Garcia Sr.) 7
Because of the petitioner bank's failure to
rebut the allegation that the subject property
was acquired during the former's marriage to
Ligaya, the legal presumption of the conjugal
nature of the property, in line with Article 160
of the Civil Code, applies to this property.
Proof of the subject property's acquisition
during the subsistence of marriage suffices to
render the statutory presumption operative. 8
CSDcTA
b. Registration of the subject
property in the name of one
spouse does not destroy the
presumption that the property is
conjugal
The petitioner bank claims that the CA failed
to consider that the subject property was
registered in the name of Jose Sr. alone.
Likewise, it raises the argument that Jose
Sr.'s change of status in the subject property's
title from "married" to "widower" prior to the
constitution of the real estate mortgage
showed that the property was no longer
conjugal.
We do not consider this argument persuasive.
Registration of a property alone in the name of
one spouse does not destroy its conjugal
nature. What is material is the time when the
property was acquired. 9 The registration of
the property is not conclusive evidence of the
exclusive ownership of the husband or the
wife. Although the property appears to be
registered in the name of the husband, it has
the inherent character of conjugal property if
it was acquired for valuable consideration
during marriage. 10 It retains its conjugal
nature. aICHEc
In order to rebut the presumptive conjugal
nature of the property, the petitioner must
present strong, clear and convincing evidence
of exclusive ownership of one of the spouses.
11 The burden of proving that the property
belongs exclusively to the wife or to the
husband rests upon the party asserting it.
In the present case, aside from its allegation
that the subject property is no longer conjugal
and its assertion that it is a mortgagee in good
faith, the petitioner bank offered no evidence,
convincing to this Court, that the subject
property exclusively belonged to Jose Sr. As
stated earlier, the petitioner bank failed to
overcome the legal presumption that the
disputed property was conjugal. Thus, the
conclusion of both lower courts that the
subject property was conjugal property holds.
Factual findings of the CA affirming those of
the trial court are binding on this Court
unless there is a clear showing that such
findings are tainted with arbitrariness,
capriciousness or palpable error. 12 aCIHcD
The conjugal partnership was converted
into an implied ordinary co-ownership
upon the death of Ligaya
Upon the death of Ligaya on January 21,
1987, the conjugal partnership was
automatically dissolved and terminated
pursuant to Article 175 (1) of the Civil Code,
13 and the successional rights of her heirs
vest, as provided under Article 777 of the Civil
Code, which states that "[t]he rights to the
succession are transmitted from the moment
of the death of the decedent." HICcSA
Consequently, the conjugal partnership was
converted into an implied ordinary co-
ownership between the surviving spouse, on
the one hand, and the heirs of the deceased,
on the other. 14 This resulting ordinary co-
ownership among the heirs is governed by
Article 493 of the Civil Code which reads:
Art. 493. Each co-owner shall have the full
ownership of his part and of the fruits and
benefits pertaining thereto, and he may
therefore alienate, assign or mortgage it, and
even substitute another person in its
enjoyment, except when personal rights are
involved. But the effect of the alienation of the
mortgage, with respect to the co-owners shall
be limited to the portion which may be allotted
to him in the division upon the termination of
the co-ownership." (Emphasis supplied)
Under this provision, each co-owner has the
full ownership of his part or share in the co-
ownership and may, therefore, alienate, assign
or mortgage it except when personal rights are
involved. Should a co-owner alienate or
mortgage the co-owned property itself, the
alienation or mortgage shall remain valid but
only to the extent of the portion which may be
allotted to him in the division upon the
termination of the co-ownership. 15 In
Carvajal v. Court of Appeals, 16 the Court
said: ICcDaA
While under Article 493 of the New Civil Code,
each co-owner shall have the full ownership of
his part and of the fruits and benefits
pertaining thereto and he may alienate, assign
or mortgage it, and even substitute another
person in its enjoyment, the effect of the
alienation or the mortgage with respect to the
co-owners, shall be limited, by mandate of the
same article, to the portion which may be
allotted to him in the division upon the
termination of the co-ownership. He has no
right to sell or alienate a concrete, specific, or
determinate part of the thing in common to
the exclusion of the other co-owners because
his right over the thing is represented by an
abstract or Ideal portion without any physical
adjudication. 3 An individual co-owner cannot
adjudicate to himself or claim title to any
definite portion of the land or thing owned in
common until its actual partition by
agreement or judicial decree. Prior to that time
all that the co-owner has is an Ideal or
abstract quota or proportionate share in the
entire thing owned in common by all the co-
owners. 4 What a co-owner may dispose of is
only his undivided aliquot share, which shall
be limited to the portion that may be allotted
to him upon partition. [emphasis supplied].
AHDcCT
In the present case, Jose Sr. constituted the
mortgage over the entire subject property after
the death of Ligaya, but before the liquidation
of the conjugal partnership. While under
Article 493 of the Civil Code, even if he had
the right to freely mortgage or even sell his
undivided interest in the disputed property, he SECOND DIVISION
could not dispose of or mortgage the entire
property without his children's consent. As [G.R. No. 171904. August 7, 2013.]
correctly emphasized by the trial court, Jose BOBBY TAN, petitioner, vs. GRACE
Sr.'s right in the subject property is limited ANDRADE, PROCESO ANDRADE, JR.,
only to his share in the conjugal partnership CHARITY A. SANTIAGO, HENRY ANDRADE,
as well as his share as an heir on the other ANDREW ANDRADE, JASMIN BLAZA,
half of the estate which is his deceased GLORY ANDRADE, MIRIAM ROSE
spouse's share. Accordingly, the mortgage ANDRADE, AND JOSEPH ANDRADE,
contract is void insofar as it extends to the respondents.
undivided shares of his children (Nora, Jose
Jr., Bobby and Jimmy) because they did not [G.R. No. 172017. August 7, 2013.]
give their consent to the transaction. 17
GRACE ANDRADE, CHARITY A. SANTIAGO,
Accordingly, the Amendment of Real Estate HENRY ANDRADE, ANDREW ANDRADE,
Mortgage constituted by Jose Sr. over the JASMIN BLAZA, MIRIAM ROSE ANDRADE,
entire property without his co-owners' consent AND JOSEPH ANDRADE, petitioners, vs.
is not necessarily void in its entirety. The right BOBBY TAN, respondent.
of the petitioner bank as mortgagee is limited
though only to the portion which may be DECISION
allotted to Jose Sr. in the event of a division PERLAS-BERNABE, J p:
and liquidation of the subject property.
ACcISa Before the Court are consolidated petitions for
review on certiorari 1 assailing the Decision 2
WHEREFORE, in view of the foregoing, we
dated July 26, 2005 and Resolution 3 dated
hereby AFFIRM the Decision dated September March 3, 2006 of the Court of Appeals (CA) in
26, 2007 of the Court of Appeals in CA-G.R. CA-G.R. CV No. 71987 which affirmed with
CV No. 71356. Costs against petitioner modification the Judgment 4 dated April 6,
Philippine National Bank.
2001 of the Regional Trial Court of Cebu City,
SO ORDERED. Branch 19 (RTC) in Civil Case No. CEB 20969.
DSacAE
Carpio, Del Castillo, Perez and Perlas-
Bernabe, JJ., concur. The Facts

Rosario Vda. De Andrade (Rosario) was the

registered owner of four parcels of land known
as Lots 17, 18, 19, and 20 5 situated in Cebu
City (subject properties) which she mortgaged
to and subsequently foreclosed by one Simon
6 Diu (Simon). 7 When the redemption period
was about to expire, Rosario sought the
assistance of Bobby Tan (Bobby) who agreed
to redeem the subject properties. 8 Thereafter,
Rosario sold the same to Bobby and her son,
Proceso Andrade, Jr. (Proceso, Jr.), for
P100,000.00 as evidenced by a Deed of
Absolute Sale 9 dated April 29, 1983 (subject
deed of sale). On July 26, 1983, Proceso, Jr.
executed a Deed of Assignment, 10 ceding
unto Bobby his rights and interests over the
subject properties in consideration of
P50,000.00. The Deed of Assignment was
signed by, among others, Henry Andrade
(Henry), one of Rosario's sons, as instrumental
witness. Notwithstanding the aforementioned
Deed of Assignment, Bobby extended an
Option to Buy 11 the subject properties in
favor of Proceso, Jr., giving the latter until
7:00 in the evening of July 31, 1984 to
purchase the same for the sum of
P310,000.00. When Proceso, Jr. failed to do
so, Bobby consolidated his ownership over the
subject properties, and the TCTs 12 therefor
were issued in his name. DIcTEC
On October 7, 1997, Rosario's children,
namely, Grace, Proceso, Jr., Henry, Andrew,
Glory, Miriam Rose, Joseph (all surnamed
Andrade), Jasmin Blaza, and Charity A.
Santiago (Andrades), filed a complaint 13 for
reconveyance and annulment of deeds of
conveyance and damages against Bobby
before the RTC, docketed as Civil Case No.
CEB 20969. In their complaint, they alleged
that the transaction between Rosario and
Bobby (subject transaction) was not one of
sale but was actually an equitable mortgage
which was entered into to secure Rosario's
indebtedness with Bobby. They also claimed
that since the subject properties were
inherited by them from their father, Proceso
Andrade, Sr. (Proceso, Sr.), the subject
properties were conjugal in nature, and thus,
Rosario had no right to dispose of their
respective shares therein. In this light, they
argued that they remained as co-owners of the
subject properties together with Bobby,
despite the issuance of the TCTs in his name.
TaSEHD
In his defense, Bobby contended that the
subject properties were solely owned by
Rosario per the TCTs issued in her name 14
and that he had validly acquired the same
upon Proceso, Jr.'s failure to exercise his
option to buy back the subject properties. 15
He also interposed the defenses of prescription
and laches against the Andrades. 16
The RTC Ruling
On April 6, 2001, the RTC rendered a
Judgment 17 dismissing the Andrades'
complaint. SHAcID
It ruled that the subject transaction was a
bona fide sale and not an equitable mortgage
as can be gleaned from its terms and
conditions, noting further that the subject
deed of sale was not even questioned by the
Andrades at the time of its execution. As
Proceso, Jr. failed to exercise his option to buy
back the subject properties, the titles thereto
were validly consolidated in Bobby's favor,
resulting to the issuance of TCTs in his name
which are deemed to be conclusive proof of his
ownership thereto. 18 As regards the nature of
the subject properties, the RTC found that
they "appeared to be the exclusive properties
of Rosario." 19 Finally, it found that the
Andrades' claim over the subject properties
had already prescribed and that laches had
already set in. 20
Dissatisfied, the Andrades elevated the matter
on appeal. IcESaA
The CA Ruling
On July 26, 2005, the CA rendered the
assailed Decision 21 upholding in part the
RTC's ruling.
It found that the subject deed of sale was
indeed what it purports to be, i.e., a bona fide
contract of sale. In this accord, it denied the
Andrades' claim that the subject transaction
was an equitable mortgage since their
allegation that the purchase price was
unusually low was left unsupported by any
evidence. Also, their averment that they have
been in continuous possession of the subject
properties was belied by the testimony of
Andrew Andrade (Andrew) who stated that
Bobby was already in possession of the same.
22 CaEIST
Nevertheless, the CA ruled that the subject
properties belong to the conjugal partnership
of Rosario and her late husband, Proceso, Sr.,
and thus, she co-owned the same together
with her children, the Andrades. 23 In this
respect, the sale was valid only with respect to
Rosario's pro-indiviso share in the subject
properties and it cannot prejudice the share of
the Andrades since they did not consent to the
sale. 24 In effect, a resulting trust was created
between Bobby and the Andrades 25 and, as
such, prescription and/or laches has yet to
set in so as to bar them from instituting the
instant case. 26 Accordingly, the CA ordered
Bobby to reconvey to the Andrades their share
in the subject properties. 27 aEDCAH
In view of the CA's pronouncement, the
parties filed their respective motions for
reconsideration. For the Andrades' part, they
sought the reconsideration of the CA's finding
as to its characterization of the subject
transaction as one of sale, insisting that it is
actually an equitable mortgage. 28 As for
Bobby's part, he maintained that the sale
should have covered the entirety of the subject
properties and not only Rosario's pro-indiviso
share. 29 Both motions for reconsideration
were, however, denied by the CA in a
Resolution 30 dated March 3, 2006.
Hence, the present consolidated petitions.
Issues before the Court
The present controversy revolves around the
CA's characterization of the subject properties
as well as of the subject transaction between
Rosario and Bobby. cEaCTS
In G.R. No. 172017, the Andrades submit that
the CA erred in ruling that the subject
transaction is in the nature of a sale, while in
G.R. No. 171904, Bobby contends that the CA
erred in ruling that the subject properties are
conjugal in nature.
The Court's Ruling
A. Characterization of the subject
transaction.
Settled is the rule that when the trial court's
factual findings have been affirmed by the CA,
said findings are generally conclusive and
binding upon the Court, and may no longer be
reviewed on Rule 45 petitions. 31 While there
exists exceptions to this rule such as when
the CA's and RTC's findings are in conflict
with each other 32 the Court observes that
none applies with respect to the ruling that
the subject transaction was one of sale and
not an equitable mortgage. Records readily
reveal that both the RTC and the CA observed
that there is no clear and convincing evidence
to show that the parties agreed upon a
mortgage. Hence, absent any glaring error
therein or any other compelling reason to hold
otherwise, this finding should now be deemed
as conclusive and perforce must stand. As
echoed in the case of Ampo v. CA: 33 cAISTC
. . . Factual findings of the Court of Appeals
are conclusive on the parties and not
reviewable by this Court and they carry
even more weight when the Court of Appeals
affirms the factual findings of the trial court,
and in the absence of any showing that the
findings complained of are totally devoid of
support in the evidence on record, or that they
are so glaringly erroneous as to constitute
serious abuse of discretion, such findings
must stand. 34
Consequently, the Andrades' petition in G.R.
No. 172017 must therefore be denied. Cdpr
B. Characterization of the subject
properties.
With respect to the nature of the subject
properties, the courts a quo were at variance
such that the RTC, on the one hand, ruled
that the said properties were exclusive
properties of Rosario, 35 while the CA, on the
other hand, pronounced that they are
conjugal in nature. 36 In this regard, the
consequent course of action would be for the
Court to conduct a re-examination of the
evidence if only to determine which among the
two is correct, 37 as an exception to the
proscription in Rule 45 petitions.
Pertinent to the resolution of this second issue
is Article 160 of the Civil Code 38 which states
that "[a]ll property of the marriage is
presumed to belong to the conjugal
partnership, unless it be proved that it
pertains exclusively to the husband or to the
wife." For this presumption to apply, the party
invoking the same must, however,
preliminarily prove that the property was
indeed acquired during the marriage. As held
in Go v. Yamane: 39 CaHcET
. . . As a condition sine qua non for the
operation of [Article 160] in favor of the
conjugal partnership, the party who invokes
the presumption must first prove that the
property was acquired during the marriage.
In other words, the presumption in favor of
conjugality does not operate if there is no
showing of when the property alleged to be
conjugal was acquired. Moreover, the
presumption may be rebutted only with
strong, clear, categorical and convincing
evidence. There must be strict proof of the
exclusive ownership of one of the spouses,
and the burden of proof rests upon the party
asserting it. 40 (Citations omitted) cIACaT
Corollarily, as decreed in Valdez v. CA, 41 the
presumption under Article 160 cannot be
made to apply where there is no showing as to
when the property alleged to be conjugal was
acquired:
. . . The issuance of the title in the name solely
of one spouse is not determinative of the
conjugal nature of the property, since there is
no showing that it was acquired during the
marriage of the Spouses Carlos Valdez, Sr.
and Josefina L. Valdez. The presumption
under Article 160 of the New Civil Code, that
property acquired during marriage is conjugal,
does not apply where there is no showing as to
when the property alleged to be conjugal was
acquired. The presumption cannot prevail
when the title is in the name of only one
spouse and the rights of innocent third parties
are involved. Moreover, when the property is
registered in the name of only one spouse and
there is no showing as to when the property
was acquired by same spouse, this is an
indication that the property belongs
exclusively to the said spouse. HTcDEa
In this case, there is no evidence to indicate
when the property was acquired by petitioner
Josefina. Thus, we agree with petitioner
Josefina's declaration in the deed of absolute
sale she executed in favor of the respondent
that she was the absolute and sole owner of
the property. . . . 42 cDACST
In this case, records reveal that the conjugal
partnership of Rosario and her husband was
terminated upon the latter's death on August
7, 1978 43 while the transfer certificates of
title over the subject properties were issued on
September 28, 1979 and solely in the name of
"Rosario Vda. de Andrade, of legal age, widow,
Filipino." 44 Other than their bare allegation,
no evidence was adduced by the Andrades to
establish that the subject properties were
procured during the coverture of their parents
or that the same were bought with conjugal
funds. Moreover, Rosario's declaration that
she is the absolute owner of the disputed
parcels of land in the subject deed of sale 45
was not disputed by her son Proceso, Jr., who
was a party to the same. Hence, by virtue of
these incidents, the Court upholds the RTC's
finding 46 that the subject properties were
exclusive or sole properties of Rosario.
their mother to Bobby. 51 These incidents can
but only lead to the conclusion that they were
well-aware of the subject transaction and yet
only pursued their claim 14 years after the
sale was executed.
Due to the above-stated reasons, Bobby's
petition in G.R. No. 171904 is hereby granted.
DEcSaI
WHEREFORE, the Court hereby (a) GRANTS
the petition of Bobby Tan in G.R. No. 171904;
and (b) DENIES the petition of Grace Andrade,
Charity A. Santiago, Henry Andrade, Andrew
Andrade, Jasmin Blaza, Miriam Rose Andrade,
and Joseph Andrade in G.R. No. 172017.
Accordingly, the Decision dated July 26, 2005
and Resolution dated March 3, 2006 of the
Court of Appeals in CA-G.R. CV No. 71987 are
hereby REVERSED and SET ASIDE, and the
April 6, 2001 Decision of the Regional Trial
Court of Cebu City, Branch 19 in Civil Case
No. CEB 20969 is REINSTATED.
SO ORDERED. cESDCa
Carpio, Brion, Del Castillo and Perez, JJ.,
concur.

Besides, the Court observes that laches had

already set in, thereby precluding the
Andrades from pursuing their claim. Case law
defines laches as the "failure to assert a right
for an unreasonable and unexplained length
of time, warranting a presumption that the
party entitled to assert it has either
abandoned or declined to assert it." 47 cSHIaA

Records disclose that the Andrades took 14

years before filing their complaint for
reconveyance in 1997. The argument that they
did not know about the subject transaction is
clearly belied by the facts on record. It is
undisputed that Proceso, Jr. was a co-vendee
in the subject deed of sale, 48 while Henry
was an instrumental witness to the Deed of
Assignment 49 and Option to Buy 50 both
dated July 26, 1983. Likewise, Rosario's sons,
Proceso, Jr. and Andrew, did not question the
execution of the subject deed of sale made by
SECOND DIVISION
[G.R. No. 187490. February 8, 2012.]
ANTONIA R. DELA PEA and ALVIN JOHN
B. DELA PEA, petitioners, vs. GEMMA
REMILYN C. AVILA and FAR EAST BANK &
TRUST CO., respondents.
DECISION
PEREZ, J p:
Filed pursuant to Rule 45 of the 1997 Rules of
Civil Procedure, this petition for review on
certiorari seeks the reversal and setting aside
of the Decision 1 dated 31 March 2009
rendered by the then Second Division of the
Court of Appeals in CA-G.R. CV No. 90485, 2
the dispositive portion of which states:
EHASaD
WHEREFORE, premises considered, the
appeal is GRANTED and the assailed Decision,
dated December 18, 2007, of the Regional
Trial Court of Marikina City, Branch 272, is
hereby REVERSED and SET ASIDE. The Deed
of Absolute Sale in favor of Gemma Avila dated
November 4, 1997 and the subsequent sale on
auction of the subject property to FEBTC (now
Bank of the Philippine Islands) on March 15,
1999 are upheld as valid and binding.
SO ORDERED. 3
The Facts
The suit concerns a 277 square meter parcel
of residential land, together with the
improvements thereon, situated in Marikina
City and previously registered in the name of
petitioner Antonia R. Dela Pea (Antonia),
"married to Antegono A. Dela Pea" (Antegono)
under Transfer Certificate of Title (TCT) No. N-
32315 of the Registry of Deeds of Rizal. 4 On 7
May 1996, Antonia obtained from A.C. Aguila
& Sons, Co. (Aguila) a loan in the sum of
P250,000.00 which, pursuant to the
Promissory Note the former executed in favor
of the latter, was payable on or before 7 July
1996, with interest pegged at 5% per month. 5
On the very same day, Antonia also executed
in favor of Aguila a notarized Deed of Real
Estate Mortgage over the property, for the
purpose of securing the payment of said loan
obligation. The deed provided, in part, that
"(t)his contract is for a period of Three (3)
months from the date of this instrument". 6
ETIcHa
On 4 November 1997, Antonia executed a
notarized Deed of Absolute Sale over the
property in favor of respondent Gemma
Remilyn C. Avila (Gemma), for the stated
consideration of P600,000.00. 7 Utilizing the
document, Gemma caused the cancellation of
TCT No. N-32315 as well as the issuance of
TCT No. 337834 of the Marikina City Registry
of Deeds, naming her as the owner of the
subject realty. 8 On 26 November 1997,
Gemma also constituted a real estate
mortgage over said parcel in favor of
respondent Far East Bank and Trust
Company [now Bank of the Philippine Islands]
(FEBTC-BPI), to secure a loan facility with a
credit limit of P1,200,000.00. 9 As evidenced
by the Promissory Notes she executed from 12
December 1997 to 10 March 1998, 10 Gemma
obtained the following loans from Visayas
Avenue Branch of the FEBTC-BPI, in the
aggregate sum of P1,200,000.00, to wit:
Promissory Note Date Amount
Maturity
BDS#970779 12/02/97 P300,000.00
04/30/98
BDS#970790 12/15/97 P100,000.00
04/14/98
BDS#980800 01/16/98 P100,000.00
04/30/98
BDS#980805 02/06/98 P100,000.00
04/30/98
BDS#980817 02/27/98 P150,000.00
04/30/98
BDS#980821 03/10/98 P450,000.00
04/30/98
On 3 March 1998, in the meantime, Antonia
filed with the Register of Deeds of Marikina an
Affidavit of Adverse Claim to the effect, among
others, that she was the true and lawful owner
of the property which had been titled in the
name of Gemma under TCT No. 32315; and,
that the Deed of Absolute Sale Gemma utilized
in procuring her title was simulated. 11 As a
consequence, Antonia's Affidavit of Adverse
Claim was inscribed on TCT No. 337834 as
Entry No. 501099 on 10 March 1998. 12 In
view of Gemma's failure to pay the principal as
well as the accumulated interest and penalties
on the loans she obtained, on the other hand,
FEBTC-BPI caused the extrajudicial
foreclosure of the real estate mortgage
constituted over the property. As the highest
bidder at the public auction conducted in the
premises, 13 FEBTC-BPI later consolidated its
ownership over the realty and caused the
same to be titled in its name under TCT No.
415392 of the Marikina registry. 14 ITcCaS
On 18 May 1998, Antonia and her son,
petitioner Alvin John B. Dela Pea (Alvin),
filed against Gemma the complaint for
annulment of deed of sale docketed before
Branch 272 of the Regional Trial Court (RTC)
of Marikina City as Civil Case No. 98-445-MK.
Claiming that the subject realty was conjugal
property, the Dela Peas alleged, among other
matters, that the 7 May 1996 Deed of Real
Estate Mortgage Antonia executed in favor of
Aguila was not consented to by Antegono who
had, by then, already died; that despite its
intended 1998 maturity date, the due date of
the loan secured by the mortgage was
shortened by Gemma who, taking advantage
of her "proximate relationship" with Aguila,
altered the same to 1997; and, that the 4
November 1997 Deed of Absolute Sale in favor
of Gemma was executed by Antonia who was
misled into believing that the transfer was
necessary for the loan the former promised to
procure on her behalf from FEBTC-BPI. In
addition to the annulment of said Deed of
Absolute Sale for being simulated and
derogatory of Alvin's successional rights, the
Dela Peas sought the reconveyance of the
property as well as the grant of their claims
for moral and exemplary damages, attorney's
fees and the costs. 15
Served with summons, Gemma specifically
denied the material allegations of the foregoing
complaint in her 1 July 1998 answer.
Maintaining that the realty was the exclusive
property of Antonia who misrepresented that
her husband was still alive, Gemma averred
that the former failed to pay the P250,000.00
loan she obtained from Aguila on its
stipulated 7 July 1996 maturity; that
approached to help prevent the extrajudicial
foreclosure of the mortgage constituted on the
property, she agreed to settle the outstanding
obligation to Aguila and to extend Antonia a
P50,000.00 loan, with interest pegged at 10%
per month; that to pay back the foregoing
accommodations, Antonia agreed to the use of
the property as collateral for a loan to be
obtained by her from FEBTC-BPI, hence, the
execution of the impugned Deed of Absolute
Sale; and, that conformably with the foregoing
agreement, she obtained loans in the total
sum of P1,200,000.00 from FEBTC-BPI and
applied the proceeds thereof to the sums owed
by Antonia. Together with the dismissal of the
complaint, Gemma also prayed for the grant of
her counterclaims for moral and exemplary
damages, attorney's fees, litigation expenses
and the costs. 16 TIaCAc
On 25 September 1999, the Dela Peas filed a
supplemental complaint, impleading FEBTC-
BPI as additional defendant. Calling attention
to Antonia's 3 March 1998 Affidavit of Adverse
Claim and the Notice of Lis Pendens they
purportedly caused to be annotated on TCT
No. 337834 on 10 December 1999, the Dela
Peas alleged that FEBTC-BPI was in bad
faith when it purchased the property at public
auction on 15 March 1999. 17 In their 12
November 1999 answer, FEBTC-BPI, in turn,
asserted that the property was already titled
in Gemma's name when she executed the 26
November 1997 real estate mortgage thereon,
to secure the payment of the loans she
obtained in the sum of P1,200,000.00; and,
that not being privy to Antonia's transaction
with Gemma and unaware of any adverse
claim on the property, it was a mortgagee in
good faith, entitled to foreclose the mortgage
upon Gemma's failure to pay the loans she
obtained. Seeking the dismissal of the
complaint and the grant of its counterclaims
for damages against the Dela Peas, FEBTC-
BPI alternatively interposed cross-claims
against Gemma for the payment of the subject
loans, the accumulated interests and
penalties thereon as well as such sums for
which it may be held liable in the premises. 18
On 14 April 2000, the RTC issued the order
terminating the pre-trial stage and declaring
Gemma in default for failure to attend the pre-
trial settings and to engage the services of a
new lawyer despite due notice and the
withdrawal of her counsel of record. 19 In
support of their complaint, Antonia 20 and
Alvin 21 both took the witness stand and, by
way of corroborative evidence, presented the
testimony of one Alessandro Almoden 22 who
claimed to have referred Antonia to Gemma
for the purpose of obtaining a loan. By way of
defense evidence, on the other hand, FEBTC-
BPI adduced the oral evidence elicited from
Eleanor Abellare, its Account Officer who
handled Gemma's loans, 23 and Zenaida
Torres, the National Bureau of Investigation
(NBI) Document Examiner who, after
analyzing Antonia's specimen signatures on
the 7 May 1996 Deed of Real Estate Mortgage
and 4 November 1997 Deed of Absolute Sale,
24 issued NBI Questioned Documents Report
No. 482-802 to the effect, among others, that
said signatures were written by one and the
same person. 25 ACaTIc
On 18 December 2007, the RTC went on to
render a Decision finding that the subject
property was conjugal in nature and that the
4 November 1997 Deed of Absolute Sale
Antonia executed in favor of Gemma was void
as a disposition without the liquidation
required under Article 130 of the Family Code.
Brushing aside FEBTC-BPI's claim of good
faith, 26 the RTC disposed of the case in the
following wise:
WHEREFORE, in view of all the foregoing,
judgment is hereby rendered in favor of the
plaintiffs and against the defendants, as
follows:
1). Declaring the Deed of Absolute dated
November 04, 1997 in favor of defendant,
[Gemma] as null and void;
2). Ordering defendant [FEBTC-BPI] to
execute a deed of reconveyance in favor of the
[Dela Peas] involving the subject property
now covered by Transfer Certificate of Title No.
415392 in the name of [FEBTC-BPI];
3). Ordering [Gemma] to pay the [Dela
Peas] the following:
a). the amount of P200,000.00 as moral
damages; and
b). the amount of P20,000.00 as and for
attorney's fees; and
c). costs of the suit AECacT
On the cross-claim, [Gemma] is hereby
ordered to pay [FEBTC-BPI] the amount of
P2,029,317.17 as of November 10, 1999, with
twelve (12%) percent interest per annum until
fully paid.
SO ORDERED. 27
Aggrieved, FEBTC-BPI perfected the appeal
which was docketed before the CA as CA-G.R.
CV No. 90485. On 31 March 2009 the CA's
Second Division rendered the herein assailed
decision, reversing the RTC's appealed
decision, upon the following findings and
conclusions: (a) the property was paraphernal
in nature for failure of the Dela Peas to prove
that the same was acquired during Antonia's
marriage to Antegono; (b) having misled
Gemma into believing that the property was
exclusively hers, Antonia is barred from
seeking the annulment of the 4 November
1997 Deed of Absolute Sale; (c) Antonia's
claim that her signature was forged is belied
by her admission in the pleadings that she
was misled by Gemma into executing said
Deed of Absolute Sale and by NBI Questioned
Document Report No. 482-802; and, (d)
FEBTC-BPI is a mortgagee in good faith and
for value since Gemma's 26 November 1997
execution of the real estate mortgage in its
favor predated Antonia's 3 March 1998
Affidavit of Adverse Claim and the 10
December 1999 annotation of a Notice of Lis
Pendens on TCT No. 337834. 28 STHAID
The Issues
The Dela Peas seek the reversal of the
assailed 31 March 2009 CA decision upon the
affirmative of following issues, to wit:
1) Whether or not the CA erred in
reversing the RTC holding the house and lot
covered by TCT No. N-32315 conjugal property
of the spouses Antegono and Antonia Dela
Pea;
2) Whether or not the CA erred in
reversing the RTC declaring null and void the
Deed of Absolute Sale executed by Antonia to
(Gemma); and
3. Whether or not the CA erred in
reversing the RTC holding (FEBTC-BPI) a
mortgagee/purchaser in bad faith. 29
The Court's Ruling
The petition is bereft of merit.
Pursuant to Article 160 of the Civil Code of the
Philippines, all property of the marriage is
presumed to belong to the conjugal
partnership, unless it be proved that it
pertains exclusively to the husband or to the
wife. Although it is not necessary to prove that
the property was acquired with funds of the
partnership, 30 proof of acquisition during the
marriage is an essential condition for the
operation of the presumption in favor of the
conjugal partnership. 31 In the case of
Francisco vs. Court of Appeals, 32 this Court
categorically ruled as follows: TIADCc
Article 160 of the New Civil Code provides that
"all property of the marriage is presumed to
belong to the conjugal partnership, unless it
be proved that it pertains exclusively to the
husband or to the wife." However, the party
who invokes this presumption must first prove
that the property in controversy was acquired
during the marriage. Proof of acquisition
during the coverture is a condition sine qua
non for the operation of the presumption in
favor of the conjugal partnership. The party
who asserts this presumption must first prove
said time element. Needless to say, the
presumption refers only to the property
acquired during the marriage and does not
operate when there is no showing as to when
property alleged to be conjugal was acquired.
Moreover, this presumption in favor of
conjugality is rebuttable, but only with strong,
clear and convincing evidence; there must be
a strict proof of exclusive ownership of one of
the spouses. 33
As the parties invoking the presumption of
conjugality under Article 160 of the Civil Code,
the Dela Peas did not even come close to
proving that the subject property was acquired
during the marriage between Antonia and
Antegono. Beyond Antonia's bare and
uncorroborated assertion that the property
was purchased when she was already married,
34 the record is bereft of any evidence from
which the actual date of acquisition of the
realty can be ascertained. When queried about
the matter during his cross-examination, even
Alvin admitted that his sole basis for saying
that the property was owned by his parents
was Antonia's unilateral pronouncement to
the effect. 35 Considering that the
presumption of conjugality does not operate if
there is no showing of when the property
alleged to be conjugal was acquired, 36 we
find that the CA cannot be faulted for ruling
that the realty in litigation was Antonia's
exclusive property. DcSACE
Not having established the time of acquisition
of the property, the Dela Peas insist that the
registration thereof in the name of "Antonia R.
Dela Pea, of legal age, Filipino, married to
Antegono A. Dela Pea" should have already
sufficiently established its conjugal nature.
Confronted with the same issue in the case
Ruiz vs. Court of Appeals, 37 this Court ruled,
however, that the phrase "married to" is
merely descriptive of the civil status of the wife
and cannot be interpreted to mean that the
husband is also a registered owner. Because it
is likewise possible that the property was
acquired by the wife while she was still single
and registered only after her marriage, neither
would registration thereof in said manner
constitute proof that the same was acquired
during the marriage and, for said reason, to be
presumed conjugal in nature. "Since there is
no showing as to when the property in
question was acquired, the fact that the title is
in the name of the wife alone is determinative
of its nature as paraphernal, i.e., belonging
exclusively to said spouse." 38
Viewed in light of the paraphernal nature of
the property, the CA correctly ruled that the
RTC reversibly erred in nullifying Antonia's 4
November 1997 sale thereof in favor of
Gemma, for lack of the liquidation required
under Article 130 of the Family Code. 39 That
Antonia treated the realty as her own
exclusive property may, in fact, be readily
gleaned from her utilization thereof as security
for the payment of the P250,000.00 loan she
borrowed from Aguila. 40 Despite Gemma's
forfeiture of the right to present evidence on
her behalf, her alleged alteration of the 7 May
1996 Deed of Real Estate Mortgage to shorten
the maturity of the loan secured thereby was
also properly brushed aside by the CA. The
double lie inherent in Antonia's assertion that
the same deed was altered by Gemma to
shorten the maturity of the loan to "1997
instead of 1998" is instantly evident from
paragraph 1 of the document which,
consistent with 7 July 1996 maturity date
provided in the Promissory Note she executed,
41 specifically stated that "(t)his contract is for
a period of Three (3) months from the date of
this instrument." 42 DHTCaI
Antonia's evident lack of credibility also impels
us to uphold the CA's rejection of her version
of the circumstances surrounding the
execution of the 4 November 1997 Deed of
Absolute Sale in favor of Gemma. In
disavowing authorship of the signature
appearing on said deed, 43 Antonia
contradicted the allegation in the Dela Peas'
complaint that she was misled by Gemma into
signing the same document. 44 The rule is
well-settled that judicial admissions like those
made in the pleadings are binding and cannot
be contradicted, absent any showing that the
same was made thru palpable mistake. 45
Alongside that appearing on the Deed of Real
Estate Mortgage she admitted executing in
favor of Aguila, Antonia's signature on the
Deed of Absolute Sale was, moreover, found to
have been written by one and the same person
in Questioned Document Report No. 482-802
prepared by Zenaida Torres, the NBI
Document Examiner to whom said specimen
signatures were submitted for analysis. 46
Parenthetically, this conclusion is borne out
by our comparison of the same signatures.
aTEAHc
For all of Antonia's denial of her receipt of any
consideration for the sale of the property in
favor of Gemma, 47 the evidence on record
also lend credence to Gemma's version of the
circumstances surrounding the execution of
the assailed 4 November 1997 Deed of
Absolute Sale. Consistent with Gemma's claim
that said deed was executed to facilitate the
loans she obtained from FEBTC-BPI which
were agreed to be used as payment of the
sums she expended to settle the outstanding
obligation to Aguila and the P50,000.00 she
loaned Antonia, 48 the latter admitted during
her direct examination that she did not pay
the loan she obtained from Aguila. 49
Presented as witness of the Dela Peas,
Alessandro Almoden also admitted that
Gemma had extended a loan in the sum of
P50,000.00 in favor of Antonia. Notably,
Alessandro Almoden's claim that the title to
the property had been delivered to Gemma as
a consequence of the transaction 50 is at odds
with Antonia's claim that she presented said
document to the Registry of Deeds when she
verified the status of the property prior to the
filing of the complaint from which the instant
suit originated. 51
With the material contradictions in the Dela
Pea's evidence, the CA cannot be faulted for
upholding the validity of the impugned 4
November 1997 Deed of Absolute Sale. Having
been duly notarized, said deed is a public
document which carries the evidentiary weight
conferred upon it with respect to its due
execution. 52 Regarded as evidence of the
facts therein expressed in a clear, unequivocal
manner, 53 public documents enjoy a
presumption of regularity which may only be
rebutted by evidence so clear, strong and
convincing as to exclude all controversy as to
falsity. 54 The burden of proof to overcome
said presumptions lies with the party
contesting the notarial document 55 like the
Dela Peas who, unfortunately, failed to
discharge said onus. Absent clear and
convincing evidence to contradict the same,
we find that the CA correctly pronounced the
Deed of Absolute Sale was valid and binding
between Antonia and Gemma.
Since foreclosure of the mortgage is but the
necessary consequence of non-payment of the
mortgage debt, 56 FEBTC-BPI was, likewise,
acting well within its rights as mortgagee
when it foreclosed the real estate mortgage on
the property upon Gemma's failure to pay the
loans secured thereby. Executed on 26
November 1997, the mortgage predated
Antonia's filing of an Affidavit of Adverse
Claim with the Register of Deeds of Marikina
on 3 March 1998 and the annotation of a
Notice of Lis Pendens on TCT No. 337834 on
10 December 1999. "The mortgage directly
and immediately subjects the property upon
which it is imposed, whoever the possessor
may be, to the fulfilment of the obligation for
whose security it was constituted." 57 When
the principal obligation is not paid when due,
the mortgagee consequently has the right to
foreclose the mortgage, sell the property, and
apply the proceeds of the sale to the
satisfaction of the unpaid loan. 58 CITcSH
Finally, the resolution of this case cannot be
affected by the principles that banks like
FEBTC-BPI are expected to exercise more care
and prudence than private individuals in that
their dealings because their business is
impressed with public interest 59 and their
standard practice is to conduct an ocular
inspection of the property offered to be
mortgaged and verify the genuineness of the
title to determine the real owner or owners
thereof, hence, the inapplicability of the
general rule that a mortgagee need not look
beyond the title does not apply to them. 60
The validity of the Deed of Absolute Sale
executed by Antonia in favor of Gemma having
been upheld, FEBTC-BPI's supposed failure to
ascertain the ownership of the property has
been rendered immaterial for the purpose of
determining the validity of the mortgage
executed in its favor as well as the subsequent
extrajudicial foreclosure thereof.
WHEREFORE, premises considered, the
petition is DENIED for lack of merit and the
assailed CA Decision dated 31 March 2009 is,
accordingly, AFFIRMED in toto.
SO ORDERED. TAacHE
Carpio, Brion, Sereno and Reyes, JJ., concur.
SECOND DIVISION
[G.R. No. 153802. March 11, 2005.]
HOMEOWNERS SAVINGS & LOAN BANK,
petitioner, vs. MIGUELA C. DAILO,
respondent.
Office of the Chief Legal Counsel for petitioner.
Edgardo R. Marilim for respondent.
SYLLABUS
1. CIVIL LAW; FAMILY CODE; CONJUGAL
PARTNERSHIP PROPERTY; SALE THEREOF
BY SPOUSE WITHOUT CONSENT OF THE
OTHER SPOUSE RENDERS ENTIRE SALE
NULL AND VOID; CASE AT BAR. In Guiang
v. Court of Appeals, it was held that the sale of
a conjugal property requires the consent of
both the husband and wife. In applying Article
124 of the Family Code, this Court declared
that the absence of the consent of one renders
the entire sale null and void, including the
portion of the conjugal property pertaining to
the husband who contracted the sale. The
same principle in Guiang squarely applies to
the instant case. . . . The basic and
established fact is that during his lifetime,
without the knowledge and consent of his
wife, Marcelino Dailo, Jr. constituted a real
estate mortgage on the subject property,
which formed part of their conjugal
partnership. By express provision of Article
124 of the Family Code, in the absence of
(court) authority or written consent of the
other spouse, any disposition or encumbrance
of the conjugal property shall be void. The
aforequoted provision does not qualify with
respect to the share of the spouse who makes
the disposition or encumbrance in the same
manner that the rule on co-ownership under
Article 493 of the Civil Code does. Where the
law does not distinguish, courts should not
distinguish. Thus, both the trial court and the
appellate court are correct in declaring the
nullity of the real estate mortgage on the
subject property for lack of respondent's
consent. TSCIEa
2. ID.; ID.; ID.; LAWS GOVERNING
PROPERTY RELATIONS BETWEEN HUSBAND
AND WIFE. Respondent and the late
Marcelino Dailo, Jr. were married on August
8, 1967. In the absence of a marriage
settlement, the system of relative community
or conjugal partnership of gains governed the
property relations between respondent and
her late husband. With the effectivity of the
Family Code on August 3, 1988, Chapter 4 on
Conjugal Partnership of Gains in the Family
Code was made applicable to conjugal
partnership of gains already established
before its effectivity unless vested rights have
already been acquired under the Civil Code or
other laws. The rules on co-ownership do not
apply to the property relations of respondent
and the late Marcelino Dailo, Jr. even in a
suppletory manner. The regime of conjugal
partnership of gains is a special type of
partnership, where the husband and wife
place in a common fund the proceeds,
products, fruits and income from their
separate properties and those acquired by
either or both spouses through their efforts or
by chance. Unlike the absolute community of
property wherein the rules on co-ownership
apply in a suppletory manner, the conjugal
partnership shall be governed by the rules on
contract of partnership in all that is not in
conflict with what is expressly determined in
the chapter (on conjugal partnership of gains)
or by the spouses in their marriage
settlements.
3. ID.; ID.; ID.; LIABLE FOR DEBT WHICH
REDOUNDED TO THE BENEFIT OF THE
FAMILY; BURDEN OF PROOF LIES WITH THE
CREDITOR-PARTY LITIGANT CLAIMING AS
SUCH; CASE AT BAR. The burden of proof
that the debt was contracted for the benefit of
the conjugal partnership of gains lies with the
creditor-party litigant claiming as such. Ei
incumbit probatio qui dicit, non qui negat (he
who asserts, not he who denies, must prove).
Petitioner's sweeping conclusion that the loan
obtained by the late Marcelino Dailo, Jr. to
finance the construction of housing units
without a doubt redounded to the benefit of
his family, without adducing adequate proof,
does not persuade this Court. Other than
petitioner's bare allegation, there is nothing
from the records of the case to compel a
finding that, indeed, the loan obtained by the
late Marcelino Dailo, Jr. redounded to the
benefit of the family. Consequently, the
conjugal partnership cannot be held liable for
the payment of the principal obligation.
SHDAEC
4. REMEDIAL LAW; EVIDENCE; WHEN
PARTY MAY BE ALLOWED TO CHANGE
LEGAL THEORY ON APPEAL; CASE AT BAR.
In addition, a perusal of the records of the
case reveals that during the trial, petitioner
vigorously asserted that the subject property
was the exclusive property of the late
Marcelino Dailo, Jr. Nowhere in the answer
filed with the trial court was it alleged that the
proceeds of the loan redounded to the benefit
of the family. Even on appeal, petitioner never
claimed that the family benefited from the
proceeds of the loan. When a party adopts a
certain theory in the court below, he will not
be permitted to change his theory on appeal,
for to permit him to do so would not only be
unfair to the other party but it would also be
offensive to the basic rules of fair play, justice
and due process. A party may change his legal
theory on appeal only when the factual bases
thereof would not require presentation of any
further evidence by the adverse party in order
to enable it to properly meet the issue raised
in the new theory. SEcITC
DECISION
TINGA, J p:
This is a petition for review on certiorari under
Rule 45 of the Revised Rules of Court,
assailing the Decision 1 of the Court of
Appeals in CA-G.R. CV No. 59986 rendered on
June 3, 2002, which affirmed with
modification the October 18, 1997 Decision 2
of the Regional Trial Court, Branch 29, San
Pablo City, Laguna in Civil Case No. SP-4748
(97). EIcSDC
The following factual antecedents are
undisputed.
Respondent Miguela C. Dailo and Marcelino
Dailo, Jr. were married on August 8, 1967.
During their marriage, the spouses purchased
a house and lot situated at Barangay San
Francisco, San Pablo City from a certain
Sandra Dalida. The subject property was
declared for tax assessment purposes under
Assessment of Real Property No. 94-051-2802.
The Deed of Absolute Sale, however, was
executed only in favor of the late Marcelino
Dailo, Jr. as vendee thereof to the exclusion of
his wife. 3
On December 1, 1993, Marcelino Dailo, Jr.
executed a Special Power of Attorney (SPA) in
favor of one Lilibeth Gesmundo, authorizing
the latter to obtain a loan from petitioner
Homeowners Savings and Loan Bank to be
secured by the spouses Dailo's house and lot
in San Pablo City. Pursuant to the SPA,
Gesmundo obtained a loan in the amount of
P300,000.00 from petitioner. As security
therefor, Gesmundo executed on the same day
a Real Estate Mortgage constituted on the
subject property in favor of petitioner. The
abovementioned transactions, including the
execution of the SPA in favor of Gesmundo,
took place without the knowledge and consent
of respondent. 4
Upon maturity, the loan remained
outstanding. As a result, petitioner instituted
extrajudicial foreclosure proceedings on the
mortgaged property. After the extrajudicial
sale thereof, a Certificate of Sale was issued in
favor of petitioner as the highest bidder. After
the lapse of one year without the property
being redeemed, petitioner, through its vice-
president, consolidated the ownership thereof
by executing on June 6, 1996 an Affidavit of
Consolidation of Ownership and a Deed of
Absolute Sale. 5
In the meantime, Marcelino Dailo, Jr. died on
December 20, 1995. In one of her visits to the
subject property, respondent learned that
petitioner had already employed a certain
Roldan Brion to clean its premises and that
her car, a Ford sedan, was razed because
Brion allowed a boy to play with fire within the
premises. HTIEaS
Claiming that she had no knowledge of the
mortgage constituted on the subject property,
which was conjugal in nature, respondent
instituted with the Regional Trial Court,
Branch 29, San Pablo City, Civil Case No. SP-
2222 (97) for Nullity of Real Estate Mortgage
and Certificate of Sale, Affidavit of
Consolidation of Ownership, Deed of Sale,
Reconveyance with Prayer for Preliminary
Injunction and Damages against petitioner. In
the latter's Answer with Counterclaim,
petitioner prayed for the dismissal of the
complaint on the ground that the property in
question was the exclusive property of the late
Marcelino Dailo, Jr.
After trial on the merits, the trial court
rendered a Decision on October 18, 1997. The
dispositive portion thereof reads as follows:
WHEREFORE, the plaintiff having proved by
the preponderance of evidence the allegations
of the Complaint, the Court finds for the
plaintiff and hereby orders:
ON THE FIRST CAUSE OF ACTION:
1. The declaration of the following
documents as null and void:
(a) The Deed of Real Estate Mortgage dated
December 1, 1993 executed before Notary
Public Romulo Urrea and his notarial register
entered as Doc. No. 212; Page No. 44, Book
No. XXI, Series of 1993.
(b) The Certificate of Sale executed by
Notary Public Reynaldo Alcantara on April 20,
1995.
(c) The Affidavit of Consolidation of
Ownership executed by the defendant
(c) The Affidavit of Consolidation of
Ownership executed by the defendant over the
residential lot located at Brgy. San Francisco,
San Pablo City, covered by ARP No. 95-091-
1236 entered as Doc. No. 406; Page No. 83,
Book No. III, Series of 1996 of Notary Public
Octavio M. Zayas. ICHAaT
(d) The assessment of real property No. 95-
051-1236.
2. The defendant is ordered to reconvey
the property subject of this complaint to the
plaintiff.
ON THE SECOND CAUSE OF ACTION
1. The defendant to pay the plaintiff the
sum of P40,000.00 representing the value of
the car which was burned.
ON BOTH CAUSES OF ACTION
1. The defendant to pay the plaintiff the
sum of P25,000.00 as attorney's fees;
2. The defendant to pay plaintiff
P25,000.00 as moral damages;
3. The defendant to pay the plaintiff the
sum of P10,000.00 as exemplary damages;
4. To pay the cost of the suit.
The counterclaim is dismissed. jur2005cda
SO ORDERED. 6
Upon elevation of the case to the Court of
Appeals, the appellate court affirmed the trial
court's finding that the subject property was
conjugal in nature, in the absence of clear and
convincing evidence to rebut the presumption
that the subject property acquired during the
marriage of spouses Dailo belongs to their
conjugal partnership. 7 The appellate court
declared as void the mortgage on the subject
property because it was constituted without
the knowledge and consent of respondent, in
accordance with Article 124 of the Family
Code. Thus, it upheld the trial court's order to
reconvey the subject property to respondent. 8
With respect to the damage to respondent's
car, the appellate court found petitioner to be
liable therefor because it is responsible for the
consequences of the acts or omissions of the
person it hired to accomplish the assigned
task. 9 All told, the appellate court affirmed
the trial court's Decision, but deleted the
award for damages and attorney's fees for lack
of basis. 10
Hence, this petition, raising the following
issues for this Court's consideration:
1. WHETHER OR NOT THE MORTGAGE
CONSTITUTED BY THE LATE MARCELINO
DAILO, JR. ON THE SUBJECT PROPERTY AS
CO-OWNER THEREOF IS VALID AS TO HIS
UNDIVIDED SHARE. ESHcTD
2. WHETHER OR NOT THE CONJUGAL
PARTNERSHIP IS LIABLE FOR THE PAYMENT
OF THE LOAN OBTAINED BY THE LATE
MARCELINO DAILO, JR. THE SAME HAVING
REDOUNDED TO THE BENEFIT OF THE
FAMILY. 11
First, petitioner takes issue with the legal
provision applicable to the factual milieu of
this case. It contends that Article 124 of the
Family Code should be construed in relation
to Article 493 of the Civil Code, which states:
ART. 493. Each co-owner shall have the full
ownership of his part and of the fruits and
benefits pertaining thereto, and he may
therefore alienate, assign or mortgage it, and
even substitute another person in its
enjoyment, except when personal rights are
involved. But the effect of the alienation or the
mortgage, with respect to the co-owners, shall
be limited to the portion which may be allotted
to him in the division upon the termination of
the co-ownership.
Article 124 of the Family Code provides in
part:
ART. 124. The administration and
enjoyment of the conjugal partnership
property shall belong to both spouses jointly. .
..
In the event that one spouse is incapacitated
or otherwise unable to participate in the
administration of the conjugal properties, the
other spouse may assume sole powers of
administration. These powers do not include
the powers of disposition or encumbrance
which must have the authority of the court or
the written consent of the other spouse. In the
absence of such authority or consent, the
disposition or encumbrance shall be void. . . .
Petitioner argues that although Article 124 of
the Family Code requires the consent of the
other spouse to the mortgage of conjugal
properties, the framers of the law could not
have intended to curtail the right of a spouse
from exercising full ownership over the portion
of the conjugal property pertaining to him
under the concept of co-ownership. 12 Thus,
petitioner would have this Court uphold the
validity of the mortgage to the extent of the
late Marcelino Dailo, Jr.'s share in the
conjugal partnership. TcIaHC
In Guiang v. Court of Appeals, 13 it was held
that the sale of a conjugal property requires
the consent of both the husband and wife. 14
In applying Article 124 of the Family Code,
this Court declared that the absence of the
consent of one renders the entire sale null and
void, including the portion of the conjugal
property pertaining to the husband who
contracted the sale. The same principle in
Guiang squarely applies to the instant case.
As shall be discussed next, there is no legal
basis to construe Article 493 of the Civil Code
as an exception to Article 124 of the Family
Code.
Respondent and the late Marcelino Dailo, Jr.
were married on August 8, 1967. In the
absence of a marriage settlement, the system
of relative community or conjugal partnership
of gains governed the property relations
between respondent and her late husband. 15
With the effectivity of the Family Code on
August 3, 1988, Chapter 4 on Conjugal
Partnership of Gains in the Family Code was
made applicable to conjugal partnership of
gains already established before its effectivity
unless vested rights have already been
acquired under the Civil Code or other laws.
16
The rules on co-ownership do not even apply
to the property relations of respondent and
the late Marcelino Dailo, Jr. even in a
suppletory manner. The regime of conjugal
partnership of gains is a special type of
partnership, where the husband and wife
place in a common fund the proceeds,
products, fruits and income from their
separate properties and those acquired by
either or both spouses through their efforts or
by chance. 17 Unlike the absolute community
of property wherein the rules on co-ownership
apply in a suppletory manner, 18 the conjugal
partnership shall be governed by the rules on
contract of partnership in all that is not in
conflict with what is expressly determined in
the chapter (on conjugal partnership of gains)
or by the spouses in their marriage
settlements. 19 Thus, the property relations of
respondent and her late husband shall be
governed, foremost, by Chapter 4 on Conjugal
Partnership of Gains of the Family Code and,
suppletorily, by the rules on partnership
under the Civil Code. In case of conflict, the
former prevails because the Civil Code
provisions on partnership apply only when the
Family Code is silent on the matter. THCASc
The basic and established fact is that during
his lifetime, without the knowledge and
consent of his wife, Marcelino Dailo, Jr.
constituted a real estate mortgage on the
subject property, which formed part of their
conjugal partnership. By express provision of
Article 124 of the Family Code, in the absence
of (court) authority or written consent of the
other spouse, any disposition or encumbrance
of the conjugal property shall be void.
The aforequoted provision does not qualify
with respect to the share of the spouse who
makes the disposition or encumbrance in the
same manner that the rule on co-ownership
under Article 493 of the Civil Code does.
Where the law does not distinguish, courts
should not distinguish. 20 Thus, both the trial
court and the appellate court are correct in
declaring the nullity of the real estate
mortgage on the subject property for lack of
respondent's consent.
Second, petitioner imposes the liability for the
payment of the principal obligation obtained
by the late Marcelino Dailo, Jr. on the
conjugal partnership to the extent that it
redounded to the benefit of the family. 21
Under Article 121 of the Family Code, "[T]he
conjugal partnership shall be liable for: . . . (3)
Debts and obligations contracted by either
spouse without the consent of the other to the
extent that the family may have been
benefited; . . . ." For the subject property to be
held liable, the obligation contracted by the
late Marcelino Dailo, Jr. must have redounded
to the benefit of the conjugal partnership.
There must be the requisite showing then of
some advantage which clearly accrued to the
welfare of the spouses. Certainly, to make a
conjugal partnership respond for a liability
that should appertain to the husband alone is
to defeat and frustrate the avowed objective of
the new Civil Code to show the utmost
concern for the solidarity and well-being of the
family as a unit. 22
The burden of proof that the debt was
contracted for the benefit of the conjugal
partnership of gains lies with the creditor-
party litigant claiming as such. 23 Ei incumbit
probatio qui dicit, non qui negat (he who
asserts, not he who denies, must prove). 24
Petitioner's sweeping conclusion that the loan
obtained by the late Marcelino Dailo, Jr. to
finance the construction of housing units
without a doubt redounded to the benefit of
his family, without adducing adequate proof,
does not persuade this Court. Other than
petitioner's bare allegation, there is nothing
from the records of the case to compel a
finding that, indeed, the loan obtained by the
late Marcelino Dailo, Jr. redounded to the
benefit of the family. Consequently, the
conjugal partnership cannot be held liable for
the payment of the principal obligation.
TSEHcA
In addition, a perusal of the records of the
case reveals that during the trial, petitioner
vigorously asserted that the subject property
was the exclusive property of the late
Marcelino Dailo, Jr. Nowhere in the answer
filed with the trial court was it alleged that the
proceeds of the loan redounded to the benefit
of the family. Even on appeal, petitioner never
claimed that the family benefited from the
proceeds of the loan. When a party adopts a
certain theory in the court below, he will not
be permitted to change his theory on appeal,
for to permit him to do so would not only be
unfair to the other party but it would also be
offensive to the basic rules of fair play, justice
and due process. 25 A party may change his
legal theory on appeal only when the factual
bases thereof would not require presentation
of any further evidence by the adverse party in
order to enable it to properly meet the issue
raised in the new theory. 26
WHEREFORE, the petition is DENIED. Costs
against petitioner. TICDSc
SO ORDERED.
Puno, Austria-Martinez, Callejo, Sr. and
Chico-Nazario, JJ., concur.
SECOND DIVISION
[G.R. No. 141323. June 8, 2005.]
DAVID V. PELAYO and LORENZA * B.
PELAYO, petitioner, vs. MELKI E. PEREZ,
respondent.
Cariaga Law Offices for petitioners.
Vivencio Jumamil for respondent.
SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE;
JUDGMENT; LAW OF THE CASE; DEFINED
AND CONSTRUED; APPLICATION IN CASE AT
BAR. The issue of whether or not the deed
of sale is null and void under R.A. No. 6657,
for respondent's failure to register said
document with the Register of Deeds within
three months after the effectivity of R.A. No.
6657, had been resolved with finality by the
CA in its Decision dated November 24, 1994 in
CA-G.R. SP No. 38700. Herein petitioners no
longer elevated said CA Decision to this Court
and the same became final and executory on
January 7, 1995. In said decision, the CA
interpreted Section 4, in relation to Section 70
of R.A. No. 6657, to mean thus: . . . the proper
interpretation of both sections is that under
R.A. No. 6657, the sale or transfer of a private
agricultural land is allowed only when said
land area constitutes or is a part of the
landowner-seller retained area and only when
the total landholdings of the purchaser-
transferee, including the property sold does
not exceed five (5) hectares. Aside from
declaring that the failure of respondent to
register the deed was not of his own fault or
negligence, the CA ruled that respondent's
failure to register the deed of sale within three
months after effectivity of The Comprehensive
Agrarian Reform Law did not invalidate the
deed of sale as "the transaction over said
property is not proscribed by R.A. No. 6657".
Thus, under the principle of law of the case,
said ruling of the CA is now binding on
petitioners. Such principle was elucidated in
Cucueco vs. Court of Appeals, to wit: Law of
the case has been defined as the opinion
delivered on a former appeal. It is a term
applied to an established rule that when an
appellate court passes on a question and
remands the case to the lower court for
further proceedings, the question there settled
becomes the law of the case upon subsequent
appeal. It means that whatever is once
irrevocably established as the controlling legal
rule or decision between the same parties in
the same case continues to be the law of the
case, whether correct on general principles or
not, so long as the facts on which such
decision was predicated continue to be the
facts of the case before the court. aCSHDI
2. CIVIL LAW; CONTRACTS; SALE;
CONSENT OF WIFE TO HUSBAND'S
DISPOSITION OF CONJUGAL PROPERTY
DOES NOT ALWAYS HAVE TO BE EXPLICIT;
PRESENT IN CASE AT BAR. Sale is a
consensual contract that is perfected by mere
consent, which may either be express or
implied. A wife's consent to the husband's
disposition of conjugal property does not
always have to be explicit or set forth in any
particular document, so long as it is shown by
acts of the wife that such consent or approval
was indeed given. In the present case,
although it appears on the face of the deed of
sale that Lorenza signed only as an
instrumental witness, circumstances leading
to the execution of said document point to the
fact that Lorenza was fully aware of the sale of
their conjugal property and consented to the
sale. . . . Under the rules of evidence, it is
presumed that a person takes ordinary care of
his concerns. Petitioners did not even attempt
to overcome the aforementioned presumption
as no evidence was ever presented to show
that Lorenza was in any way lacking in her
mental faculties and, hence, could not have
fully understood the ramifications of signing
the deed of sale. Neither did petitioners
present any evidence that Lorenza had been
defrauded, forced, intimidated or threatened
either by her own husband or by respondent
into affixing her signature on the subject
document. If Lorenza had any objections over
the conveyance of the disputed property, she
could have totally refrained from having any
part in the execution of the deed of sale.
Instead, Lorenza even affixed her signature
thereto. Moreover, under Article 173, in
relation to Article 166, both of the New Civil
Code, which was still in effect on January 11,
1988 when the deed in question was executed,
the lack of marital consent to the disposition
of conjugal property does not make the
contract void ab initio but merely voidable.
3. REMEDIAL LAW; MOTIONS; MOTION
FOR RECONSIDERATION; DENIAL THEREOF
DOES NOT VIOLATE RIGHT TO DUE
PROCESS; RATIONALE. We have
consistently held that a petitioner's right to
due process is not violated where he was able
to move for reconsideration of the order or
decision in question. In this case, petitioners
had the opportunity to fully expound on their
defenses through a motion for
reconsideration. Petitioners did file such
motion but they wasted such opportunity by
failing to present therein whatever errors they
believed the CA had committed in its Decision.
Definitely, therefore, the denial of petitioners'
motion for reconsideration, praying that they
be allowed to file appellees' brief, did not
infringe petitioners' right to due process as
any issue that petitioners wanted to raise
could and should have been contained in said
motion for reconsideration. HICSTa
DECISION
AUSTRIA-MARTINEZ, J p:
This resolves the petition for review on
certiorari seeking the reversal of the Decision
1 of the Court of Appeals (CA) promulgated on
April 20, 1999 which reversed the Decision of
the Regional Trial Court (RTC) of Panabo,
Davao, Branch 34, in Civil Case No. 91-46;
and the CA Resolution dated December 17,
1999 denying petitioners' motion for
reconsideration. IDTcHa
The antecedent facts as aptly narrated by the
CA are as follows:
David Pelayo (Pelayo), by a Deed of Absolute
Sale executed on January 11, 1988, conveyed
to Melki Perez (Perez) two parcels of
agricultural land (the lots) situated in Panabo,
Davao which are portions of Lot 4192, Cad.
276 covered by OCT P-16873.
Loreza Pelayo (Loreza), wife of Pelayo, and
another one whose signature is illegible
witnessed the execution of the deed.
Loreza, however, signed only on the third page
in the space provided for witnesses on account
of which Perez' application for registration of
the deed with the Office of the Register of
Deeds in Tagum, Davao was denied.
Perez thereupon asked Loreza to sign on the
first and second pages of the deed but she
refused, hence, he instituted on August 8,
1991 the instant complaint for specific
performance against her and her husband
Pelayo (defendants). CcADHI
The defendants moved to dismiss the
complaint on the ground that it stated no
cause of action, citing Section 6 of RA 6656
otherwise known as the Comprehensive
Agrarian Reform Law which took effect on
June 10, 1988 and which provides that
contracts executed prior thereto shall "be valid
only when registered with the Register of
Deeds within a period of three (3) months after
the effectivity of this Act."
The questioned deed having been executed on
January 10, 1988, the defendants claimed
that Perez had at least up to September 10,
1988 within which to register the same, but as
they failed to, it is not valid and, therefore,
unenforceable.
The trial court thus dismissed the complaint.
On appeal to this Court, the dismissal was set
aside and the case was remanded to the lower
court for further proceedings.
In their Answer, the defendants claimed that
as the lots were occupied illegally by some
persons against whom they filed an ejectment
case, they and Perez who is their friend and
known at the time as an activist/leftist, hence
feared by many, just made it appear in the
deed that the lots were sold to him in order to
frighten said illegal occupants, with the
intentional omission of Loreza's signature so
that the deed could not be registered; and that
the deed being simulated and bereft of
consideration is void/inexistent. DTIaCS
Perez countered that the lots were given to
him by defendant Pelayo in consideration of
his services as his attorney-in-fact to make
the necessary representation and negotiation
with the illegal occupants-defendants in the
ejectment suit; and that after his relationship
with defendant Pelayo became sour, the latter
sent a letter to the Register of Deeds of Tagum
requesting him not to entertain any
transaction concerning the lots title to which
was entrusted to Perez who misplaced and
could [not] locate it.
Defendant Pelayo claimed in any event, in his
Pre-trial brief filed on March 19, 1996, that
the deed was without his wife Loreza's
consent, hence, in light of Art. 166 of the Civil
Code which provides:
Article 166. Unless the wife has been
declared a non compos mentis or a
spendthrift, or is under civil interdiction or is
confined in a leprosarium, the husband
cannot alienate or encumber any real property
of the conjugal partnership without the wife's
consent . . .
it is null and void. HTAIcD
The trial court, finding, among others, that
Perez did not possess, nor pay the taxes on
the lots, that defendant Pelayo was indebted
to Perez for services rendered and, therefore,
the deed could only be considered as evidence
of debt, and that in any event, there was no
marital consent to nor actual consideration for
the deed, held that the deed was null and void
and accordingly rendered judgment the
dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered
ordering and directing the defendants to pay
plaintiff Melki Perez the sum of TEN
THOUSAND (P10,000.00) Pesos as principal
with 12% interest per annum starting from
the date of filing of the complaint on August 1,
1991 until plaintiff is fully paid.
The defendants shall likewise pay to plaintiff
the sum of THREE THOUSAND (P3,000.00) as
attorney's fees.
The court further orders that the Deed of
Absolute Sale, (Annex 'A') of the complaint and
(Annex 'C') of the plaintiff's Motion for
Summary Judgment is declared null and void
and without force and it is likewise removed
as a cloud over defendants' title and property
in suit. . . ." 2
The RTC Decision was appealed by herein
respondent Perez to the CA. Petitioners failed
to file their appellees' brief. The CA then
promulgated its Decision on April 20, 1999
whereby it ruled that by Lorenza's signing as
witness to the execution of the deed, she had
knowledge of the transaction and is deemed to
have given her consent to the same; that
herein petitioners failed to adduce sufficient
proof to overthrow the presumption that there
was consideration for the deed, and that
petitioner David Pelayo, being a lawyer, is
presumed to have acted with due care and to
have signed the deed with full knowledge of its
contents and import. The CA reversed and set
aside the RTC Decision, declaring as valid and
enforceable the questioned deed of sale and
ordering herein petitioner Lorenza Pelayo to
affix her signature on all pages of said
document. CDESIA
Petitioners moved for reconsideration of the
decision but the same was denied per
Resolution dated December 17, 1999. The CA
found said motion to have been filed out of
time and ruled that even putting aside
technicality, petitioners failed to present any
ground bearing on the merits of the case to
justify a reversal or setting aside of the
decision.
Hence, this petition for review on certiorari on
the following grounds:
1. The CA erred in ignoring the specific
provision of Section 6, in relation to Section 4
of R.A. No. 6657 otherwise known as the
Comprehensive Agrarian Reform Law of 1988
which took effect on June 15, 1988 and which
provides that contracts executed prior thereto
shall "be valid only when registered with the
Register of Deeds within a period of three (3)
months after the effectivity of this Act."
2. The CA erred in holding that the deed
of sale was valid and considering the
P10,000.00 adjudged by the trial court as
Perez's remuneration as the consideration for
the deed of sale, instead of declaring the same
as null and void for being fictitious or
simulated and on the basis of Art. 491, Par. 2
of the New Civil Code which prohibits agents
from acquiring by purchase properties from
his principal under his charge.
3. The CA made a novel ruling that there
was implied marital consent of the wife of
petitioner David Pelayo.
4. Petitioners should have been allowed to
file their appellees' brief to ventilate their side,
considering the existence of peculiar
circumstances which prevented petitioners
from filing said brief. cTIESD
On the other hand, respondent points out that
the CA, in resolving the first appeal docketed
as CA-G.R. SP No. 38700 3 brought by
respondent assailing the RTC Order granting
herein petitioners' motion to dismiss, already
ruled that under R.A. No. 6657, the sale or
transfer of private agricultural land is allowed
only when the area of the land being conveyed
constitutes or is a part of, the landowner-
seller retained area and when the total
landholding of the purchaser-transferee,
including the property sold, does not exceed
five (5) hectares; that in this case, the land in
dispute is only 1.3 hectares and there is no
proof that the transferee's (herein respondent)
total landholding inclusive of the subject land
will exceed 5 hectares, the landholding ceiling
prescribed by R.A. No. 6657; that the failure of
respondent to register the instrument was not
due to his fault or negligence but can be
attributed to Lorenza's unjustified refusal to
sign two pages of the deed despite several
requests of respondent; and that therefore, the
CA ruled that the deed of sale subject of this
case is valid under R.A. No. 6657.
Respondent further maintains that the CA
correctly held in its assailed Decision that
there was consideration for the contract and
that Lorenza is deemed to have given her
consent to the deed of sale.
Respondent likewise opines that the CA was
right in denying petitioners' motion for
reconsideration where they prayed that they
be allowed to file their appellees' brief as their
counsel failed to file the same on account of
said counsel's failing health due to cancer of
the liver. Respondent emphasized that in
petitioners' motion for reconsideration, they
did not even cite any errors made by the CA in
its Decision. cEAIHa
The issues boil down to the question of
whether or not the deed of sale was null and
void on the following grounds: (a) for not
complying with the provision in R.A. No. 6657
that such document must be registered with
the Register of Deeds within three months
after the effectivity of said law; (b) for lack of
marital consent; (c) for being prohibited under
Article 1491 (2) of the Civil Code; and (d) for
lack of consideration.
We rule against petitioners.
The issue of whether or not the deed of sale is
null and void under R.A. No. 6657, for
respondent's failure to register said document
with the Register of Deeds within three
months after the effectivity of R.A. No. 6657,
had been resolved with finality by the CA in its
Decision dated November 24, 1994 in CA-G.R.
SP No. 38700. 4 Herein petitioners no longer
elevated said CA Decision to this Court and
the same became final and executory on
January 7, 1995. 5
In said decision, the CA interpreted Section 4,
in relation to Section 70 of R.A. No. 6657, to
mean thus:
. . . the proper interpretation of both sections
is that under R.A. No. 6657, the sale or
transfer of a private agricultural land is
allowed only when said land area constitutes
or is a part of the landowner-seller retained
area and only when the total landholdings of
the purchaser-transferee, including the
property sold does not exceed five (5) hectares.
Aside from declaring that the failure of
respondent to register the deed was not of his
own fault or negligence, the CA ruled that
respondent's failure to register the deed of sale
within three months after effectivity of The
Comprehensive Agrarian Reform Law did not
invalidate the deed of sale as "the transaction
over said property is not proscribed by R.A.
No. 6657." ACaDTH
Thus, under the principle of law of the case,
said ruling of the CA is now binding on
petitioners. Such principle was elucidated in
Cucueco vs. Court of Appeals, 6 to wit:
Law of the case has been defined as the
opinion delivered on a former appeal. It is a
term applied to an established rule that when
an appellate court passes on a question and
remands the case to the lower court for
further proceedings, the question there settled
becomes the law of the case upon subsequent
appeal. It means that whatever is once
irrevocably established as the controlling legal
rule or decision between the same parties in
the same case continues to be the law of the
case, whether correct on general principles or
not, so long as the facts on which such
decision was predicated continue to be the
facts of the case before the court.
Petitioners not having questioned the Decision
of the CA dated November 24, 1994 which
then attained finality, the ruling that the deed
of sale subject of this case is not among the
transactions deemed as invalid under R.A. No.
6657, is now immutable.
We agree with the CA ruling that petitioner
Lorenza, by affixing her signature to the Deed
of Sale on the space provided for witnesses, is
deemed to have given her implied consent to
the contract of sale.
Sale is a consensual contract that is perfected
by mere consent, which may either be express
or implied. 7 A wife's consent to the husband's
disposition of conjugal property does not
always have to be explicit or set forth in any
particular document, so long as it is shown by
acts of the wife that such consent or approval
was indeed given. 8 In the present case,
although it appears on the face of the deed of
sale that Lorenza signed only as an
instrumental witness, circumstances leading
to the execution of said document point to the
fact that Lorenza was fully aware of the sale of
their conjugal property and consented to the
sale. EScHDA
In their Pre-Trial Brief, 9 petitioners admitted
that even prior to 1988, they have been having
serious problems, including threats to the life
of petitioner David Pelayo, due to conflicts
with the illegal occupants of the property in
question, so that respondent, whom many
feared for being a leftist/activist, offered his
help in driving out said illegal occupants.
Human experience tells us that a wife would
surely be aware of serious problems such as
threats to her husband's life and the reasons
for such threats. As they themselves stated,
petitioners' problems over the subject property
had been going on for quite some time, so it is
highly improbable for Lorenza not to be aware
of what her husband was doing to remedy
such problems. Petitioners do not deny that
Lorenza Pelayo was present during the
execution of the deed of sale as her signature
appears thereon. Neither do they claim that
Lorenza Pelayo had no knowledge whatsoever
about the contents of the subject document.
Thus, it is quite certain that she knew of the
sale of their conjugal property between her
husband and respondent.
Under the rules of evidence, it is presumed
that a person takes ordinary care of his
concerns. 10 Petitioners did not even attempt
to overcome the aforementioned presumption
as no evidence was ever presented to show
that Lorenza was in any way lacking in her
mental faculties and, hence, could not have
fully understood the ramifications of signing
the deed of sale. Neither did petitioners
present any evidence that Lorenza had been
defrauded, forced, intimidated or threatened
either by her own husband or by respondent
into affixing her signature on the subject
document. If Lorenza had any objections over
the conveyance of the disputed property, she
could have totally refrained from having any
part in the execution of the deed of sale.
Instead, Lorenza even affixed her signature
thereto. AHCaED
Moreover, under Article 173, in relation to
Article 166, both of the New Civil Code, which
was still in effect on January 11, 1988 when
the deed in question was executed, the lack of
marital consent to the disposition of conjugal
property does not make the contract void ab
initio but merely voidable. Said provisions of
law provide:
Art. 166. Unless the wife has been
declared a non compos mentis or a
spendthrift, or is under civil interdiction or is
confined in a leprosarium, the husband
cannot alienate or encumber any real property
of the conjugal property without the wife's
consent. If she refuses unreasonably to give
her consent, the court may compel her to
grant the same.
xxx xxx xxx
Art. 173. The wife may, during the
marriage, and within ten years from the
transaction questioned, ask the courts for the
annulment of any contract of the husband
entered into without her consent, when such
consent is required, or any act or contract of
the husband which tends to defraud her or
impair her interest in the conjugal partnership
property. Should the wife fail to exercise this
right, she or her heirs, after the dissolution of
the marriage, may demand the value of
property fraudulently alienated by the
husband. ECSHAD
Hence, it has been held that the contract is
valid until the court annuls the same and only
upon an action brought by the wife whose
consent was not obtained. 11 In the present
case, despite respondent's repeated demands
for Lorenza to affix her signature on all the
pages of the deed of sale, showing
respondent's insistence on enforcing said
contract, Lorenza still did not file a case for
annulment of the deed of sale. It was only
when respondent filed a complaint for specific
performance on August 8, 1991 when
petitioners brought up Lorenza's alleged lack
of consent as an affirmative defense. Thus, if
the transaction was indeed entered into
without Lorenza's consent, we find it quite
puzzling why for more than three and a half
years, Lorenza did absolutely nothing to seek
the nullification of the assailed contract.
The foregoing circumstances lead the Court to
believe that Lorenza knew of the full import of
the transaction between respondent and her
husband; and, by affixing her signature on the
deed of sale, she, in effect, signified her
consent to the disposition of their conjugal
property.
With regard to petitioners' asseveration that
the deed of sale is invalid under Article 1491,
paragraph 2 of the New Civil Code, we find
such argument unmeritorious. Article 1491 (2)
provides:
Art. 1491. The following persons cannot
acquire by purchase, even at a public or
judicial auction, either in person or through
the mediation of another:
xxx xxx xxx
(2) Agents, the property whose
administration or sale may have been
entrusted to them, unless the consent of the
principal has been given; TAacCE
xxx xxx xxx
In Distajo vs. Court of Appeals, 12 a
landowner, Iluminada Abiertas, designated
one of her sons as the administrator of several
parcels of her land. The landowner
subsequently executed a Deed of Certification
of Sale of Unregistered Land, conveying some
of said land to her son/administrator.
Therein, we held that:
Under paragraph (2) of the above article, the
prohibition against agents purchasing
property in their hands for sale or
management is not absolute. It does not apply
if the principal consents to the sale of the
property in the hands of the agent or
administrator. In this case, the deeds of sale
signed by Iluminada Abiertas shows that she
gave consent to the sale of the properties in
favor of her son, Rufo, who was the
administrator of the properties. Thus, the
consent of the principal Iluminada Abiertas
removes the transaction out of the prohibition
contained in Article 1491(2). 13
The above-quoted ruling is exactly in point
with this case before us. Petitioners, by
signing the Deed of Sale in favor of
respondent, are also deemed to have given
their consent to the sale of the subject
property in favor of respondent, thereby
making the transaction an exception to the
general rule that agents are prohibited from
purchasing the property of their principals.
Petitioners also argue that the CA erred in
ruling that there was consideration for the
sale. We find no error in said appellate court's
ruling. The element of consideration for the
sale is indeed present. Petitioners, in adopting
the trial court's narration of antecedent facts
in their petition, 14 thereby admitted that they
authorized respondent to represent them in
negotiations with the "squatters" occupying
the disputed property and, in consideration of
respondent's services, they executed the
subject deed of sale. Aside from such services
rendered by respondent, petitioners also
acknowledged in the deed of sale that they
received in full the amount of Ten Thousand
Pesos. Evidently, the consideration for the sale
is respondent's services plus the
aforementioned cash money. ETHCDS
Petitioners contend that the consideration
stated in the deed of sale is excessively
inadequate, indicating that the deed of sale
was merely simulated. We are not persuaded.
Our ruling in Buenaventura vs. Court of
Appeals 15 is pertinent, to wit:
. . . Indeed, there is no requirement that the
price be equal to the exact value of the subject
matter of sale. . . . As we stated in Vales vs.
Villa:
Courts cannot follow one every step of his life
and extricate him from bad bargains, protect
him from unwise investments, relieve him
from one-sided contracts, or annul the effects
of foolish acts. Courts cannot constitute
themselves guardians of persons who are not
legally incompetent. Courts operate not
because one person has been defeated or
overcome by another, but because he has
been defeated or overcome illegally. Men may
do foolish things, make ridiculous contracts,
use miserable judgment, and lose money by
them indeed, all they have in the world; but
not for that alone can the law intervene and
restore. There must be, in addition, a violation
of the law, the commission of what the law
knows as an actionable wrong, before the
courts are authorized to lay hold of the
situation and remedy it. 16
Verily, in the present case, petitioners have
not presented proof that there has been fraud,
mistake or undue influence exercised upon
them by respondent. It is highly unlikely and
contrary to human experience that a layman
like respondent would be able to defraud,
exert undue influence, or in any way vitiate
the consent of a lawyer like petitioner David
Pelayo who is expected to be more
knowledgeable in the ways of drafting
contracts and other legal transactions.
HDaACI
Furthermore, in their Reply to Respondent's
Memorandum, 17 petitioners adopted the CA's
narration of fact that petitioners stated in a
letter they sent to the Register of Deeds of
Tagum that they have entrusted the titles over
subject lots to herein respondent. Such act is
a clear indication that they intended to convey
the subject property to herein respondent and
the deed of sale was not merely simulated or
fictitious.
Lastly, petitioners claim that they were not
able to fully ventilate their defense before the
CA as their lawyer, who was then suffering
from cancer of the liver, failed to file their
appellees' brief. Thus, in their motion for
reconsideration of the CA Decision, they
prayed that they be allowed to submit such
appellees' brief. The CA, in its Resolution
dated December 17, 1999, stated thus:
By movant-defendant-appellee's own
information, his counsel received a copy of the
decision on May 5, 1999. He, therefore, had
fifteen (15) days from said date or up to May
20, 1999 to file the motion. The motion,
however, was sent through a private courier
and, therefore, considered to have been filed
on the date of actual receipt on June 17, 1999
by the addressee Court of Appeals, was
filed beyond the reglementary period.
Technicality aside, movant has not proffered
any ground bearing on the merits of the case
why the decision should be set aside. aScIAC
Petitioners never denied the CA finding that
their motion for reconsideration was filed
beyond the fifteen-day reglementary period.
On that point alone, the CA is correct in
denying due course to said motion. The
motion having been belatedly filed, the CA
Decision had then attained finality. Thus, in
Abalos vs. Philex Mining Corporation, 18 we
held that:
. . . Nothing is more settled in law than that
once a judgment attains finality it thereby
becomes immutable and unalterable. It may
no longer be modified in any respect, even if
the modification is meant to correct what is
perceived to be an erroneous conclusion of
fact or law, and regardless of whether the
modification is attempted to be made by the
court rendering it or by the highest court of
the land.
Moreover, it is pointed out by the CA that said
motion did not present any defense or
argument on the merits of the case that could
have convinced the CA to reverse or modify its
Decision.
We have consistently held that a petitioner's
right to due process is not violated where he
was able to move for reconsideration of the
order or decision in question. 19 In this case,
petitioners had the opportunity to fully
expound on their defenses through a motion
for reconsideration. Petitioners did file such
motion but they wasted such opportunity by
failing to present therein whatever errors they
believed the CA had committed in its Decision.
Definitely, therefore, the denial of petitioners'
motion for reconsideration, praying that they
be allowed to file appellees' brief, did not
infringe petitioners' right to due process as
any issue that petitioners wanted to raise
could and should have been contained in said
motion for reconsideration. CaDSHE
IN VIEW OF THE FOREGOING, the petition is
DENIED and the Decision of the Court of
Appeals dated April 20, 1999 and its
Resolution dated December 17, 1999 are
hereby AFFIRMED.
SO ORDERED.
Callejo, Sr., Tinga and Chico-Nazario, JJ.,
concur.
Puno, J., is on official leave.
SECOND DIVISION
[G.R. No. 116668. July 28, 1997.]
ERLINDA A. AGAPAY, petitioner, vs.
CARLINA (CORNELIA) V. PALANG and
HERMINIA P. DELA CRUZ, respondent.
Simplicio M. Sevilleja for petitioner.
Ray L. Basbas & Fe Fernandez-Bautista for
respondents.
SYNOPSIS
Miguel Palang married on July 16, 1949. It
was his first marriage. Their only child,
Herminia, was born on May 12, 1950.
On July 15, 1973, Miguel, then 63 years old,
contracted his second marriage with Erlinda
Agapay, 19, herein petitioner. Two months
earlier, Miguel and Erlinda purchased a piece
of riceland. Transfer Certificate of Title No.
101736 was issued in their names.
On September 23, 1975, a house and lot was
purchased allegedly by Erlinda as the sole
vendee. TCT No. 143120 was later issued in
her name.
Miguel and Erlinda's cohabitation produced a
son, Kristoper A. Palang, born on December 6,
1977. In 1979, Miguel and Erlinda were
convicted of concubinage upon Carlina' s
complaint. Two years later, Miguel died.
On July 11, 1981, Carlina Palang and her
daughter Herminia Palang de la Cruz, herein
private respondents, instituted an action for
recovery of ownership and possession with
damages against petitioner. Private
respondents sought to get back the riceland
and the house and lot allegedly purchased by
Miguel during his cohabitation with petitioner.
After trial on the merits, the lower court
dismissed the complaint declaring that there
was little evidence to prove that the subject
properties pertained to the conjugal property
of Carlina and Miguel Palang.
On appeal, the Court of Appeals reversed the
trial court's decision. Hence, this petition.
The sale of the riceland was made in favor of
Miguel and Erlinda. The application law is Art.
148 of the Family Code on the cohabitation of
a man and a woman under a void marriage or
without the benefit of marriage. The marriage
of Miguel and Erlinda was patently void
because the earlier marriage of Miguel and
Carlina was still subsisting. Under Art. 148,
only the properties acquired by both of the
parties through their actual joint contribution
of money, property or industry shall be owned
by them in common in proportion to their
respective contributions. Actual contribution
is required by this provision, in contrast to
Art. 147. If the actual contribution of the party
is not proved, there will be no co-ownership
and no presumption of equal shares. Since
petitioner failed to prove that she contributed
money to the purchase price ,of the riceland,
we find no basis to justify her co-ownership
with Miguel over the same. Consequently, the
riceland should revert to the conjugal
partnership property of the deceased Miguel
and private respondent Carlina Palang.
As regards Kristopher Palang's heirship and
filiation, the same should be ventilated in the
proper probate court or in a special
proceeding instituted for the purpose, and
cannot be adjudicated in an ordinary civil
action for recovery of ownership and
possession.
The decision of the Court of Appeals is
affirmed.
SYLLABUS
1. CIVIL LAW; FAMILY CODE; PROPERTY
REGIME OF UNIONS WITHOUT MARRIAGE;
PROOF OF ACTUAL CONTRIBUTION BY
BOTH PARTIES, REQUIRED; ABSENCE
THEREOF IN CASE AT BAR. The provision
of law applicable here is Article 148 of the
Family Code providing for cases of
cohabitation when a man and a woman who
are not capacitated to marry each other live
exclusively with each other as husband and
wife without the benefit of marriage or under a
void marriage. While Miguel and Erlinda
contracted marriage on July 15, 1973, said
union was patently void because the earlier
marriage of Miguel and Carlina was still
subsisting and unaffected by the latter's de
facto separation. Under Article 148, only the
properties acquired by both of the parties
through their actual joint contribution of
money, property or industry shall be owned by
them in common in proportion to their
respective contributions. It must be stressed
that actual contribution is required by this
provision, in contrast to Article 147 which
states that efforts in the care and
maintenance of the family and household, are
regarded as contributions to the acquisition of
common property by one who has no salary or
income or work or industry. If the actual
contribution of the party is not proved, there
will be no co-ownership and no presumption
of equal shares. Even assuming that the
subject property was bought before
cohabitation, the rules of co-ownership would
still apply and proof of actual contribution
would still be essential. Since petitioner failed
to prove that she contributed money to the
purchase price of the riceland in Binalonan,
Pangasinan, we find no basis to justify her co-
ownership with Miguel over the same.
Consequently, the riceland should, as
correctly held by the Court of Appeals, revert
to the conjugal partnership property of the
deceased Miguel and private respondent
Carlina Palang.
2. ID.; ID.; SEPARATION OF PROPERTY
OF THE SPOUSES DURING MARRIAGE;
JUDICIAL ORDER, REQUIRED. Separation
of property between spouses during the
marriage shall not take place except by
judicial order or without judicial conferment
when there is an express stipulation in the
marriage settlements. [Article 134 of the
Family Code] The judgment which resulted
from the parties' compromise was not
specifically and expressly for separation of
property and should not be so inferred.
3. ID.; ID.; DONATION; BETWEEN
PERSONS GUILTY OF ADULTERY OR
CONCUBINAGE; VOID; RATIONALE; CASE AT
BAR. With respect to the house and lot,
Erlinda allegedly bought the same for
P20,000.00 on September 23, 1975 when she
was only 22 years old. The testimony of the
notary public who prepared the deed of
conveyance for the property reveals the
falsehood of this claim. Atty. Constantino
Sagun testified that Miguel Palang provided
the money for the purchase price and directed
that Erlinda's name alone be placed as the
vendee. The transaction was properly a
donation made by Miguel to Erlinda, but one
which was clearly void and inexistent by
express provision of law because it was made
between persons guilty of adultery or
concubinage at the time of the donation,
under Article 739 of the Civil Code. Moreover,
Article 87 of the Family Code expressly
provides that the prohibition against
donations between spouses now applies to
donations between persons living together as
husband and wife without a valid marriage,
for otherwise, the condition of those who
incurred guilt would turn out to be better than
those in legal union.
4. ID.; ID.; HEIRSHIP AND FILIATION;
CANNOT BE ADJUDICATED IN AN ORDINARY
CIVIL ACTION FOR RECOVERY OF
OWNERSHIP; CASE AT BAR. The issue
concerning Kristopher Palang's status and
claim as an illegitimate son and heir to
Miguel's estate is here resolved in favor of
respondent court's correct assessment that
the trial court erred in making
pronouncements regarding Kristopher's
heirship and filiation "inasmuch as questions
as to who are the heirs of the decedent, proof
of filiation of illegitimate children and the
determination of the estate of the latter and
claims thereto should be ventilated in the
proper probate court or in a special
proceeding instituted for the purpose and
cannot be adjudicated in the instant ordinary
civil action which is for recovery of ownership
and possession." Kristopher, not having been
impleaded, was not a party to the case at bar.
His mother, Erlinda, cannot be called his
guardian ad litem for he was not involved in
the case at bar.
DECISION
ROMERO, J p:
Before us is a petition for review of the
decision of the Court of Appeals in CA-G.R. CV
No. 24199 entitled "Erlinda Agapay v. Carlina
(Cornelia) Palang and Herminia P. Dela Cruz"
dated June 22, 1994 involving the ownership
of two parcels of land acquired during the
cohabitation of petitioner and private
respondent's legitimate spouse.
Miguel Palang contracted his first marriage on
July 16, 1949 when he took private
respondent Carlina (or Cornelia) Vallesterol as
a wife at the Pozorrubio Roman Catholic
Church in Pangasinan. A few months after the
wedding, in October 1949, he left to work in
Hawaii. Miguel and Carlina's only child,
Herminia Palang, was born on May 12, 1950.
Miguel returned in 1954 for a year. His next
visit to the Philippines was in 1964 and
during the entire duration of his year-long
sojourn he stayed in Zambales with his
brother, not in Pangasinan with his wife and
child. The trial court found evidence that as
early as 1957, Miguel had attempted to
divorced Carlina in Hawaii. 1 When he
returned for good in 1972, he refused to live
with private respondents, but stayed alone in
a house in Pozorrubio, Pangasinan.
On July 15, 1973, the then sixty-three-year-
old Miguel contracted his second marriage
with nineteen-year-old Erlinda Agapay, herein
petitioner. 2 Two months earlier, on May 17,
1973, Miguel and Erlinda, as evidenced by the
Deed of Sale, jointly purchased a parcel of
agricultural land located at San Felipe,
Binalonan, Pangasinan with an area of 10,080
square meters. Consequently, Transfer
Certificate of Title No. 101736 covering said
rice land was issued in their names.
A house and lot in Binalonan, Pangasinan was
likewise purchased on September 23, 1975,
allegedly by Erlinda as the sole vendee. TCT
No. 143120 covering said property was later
issued in her name.
On October 30, 1975, Miguel and Cornelia
Palang executed a Deed of Donation as a form
of compromise agreement to settle and end a
case filed by the latter. 3 The parties therein
agreed to donate their conjugal property
consisting of six parcels of land to their only
child, Herminia Palang. 4
Miguel and Erlinda's cohabitation produced a
son, Kristopher A. Palang, born on December
6, 1977. In 1979, Miguel and Erlinda were
convicted of concubinage upon Carlina's
complaint. 5 Two years later, on February 15,
1981, Miguel died.
On July 11, 1981, Carlina Palang and her
daughter Herminia Palang de la Cruz, herein
private respondents, instituted the case at
bar, an action for recovery of ownership and
possession with damages against petitioner
before the Regional Trial Court in Urdaneta,
Pangasinan (Civil Case No. U-4265). Private
respondents sought to get back the riceland
and the house and lot both located at
Binalonan, Pangasinan allegedly purchased by
Miguel during his cohabitation with petitioner.
Petitioner, as defendant below, contented that
while the riceland covered by TCT No. 101736
is registered in their names (Miguel and
Erlinda), she had already given her half of the
property to their son Kristopher Palang. She
added that the house and lot covered by TCT
No. 143120 is her sole property, having
bought the same with her own money. Erlinda
added that Carlina is precluded from claiming
aforesaid properties since the latter had
already donated their conjugal estate to
Herminia.
After trial on the merits, the lower court
rendered its decision on June 30, 1989
dismissing the complaint after declaring that
there was little evidence to prove that the
subject properties pertained to the conjugal
property of Carlina and Miguel Palang. The
lower court went on to provide for the
intestate shares of the parties, particularly of
Kristopher Palang, Miguel's illegitimate son.
The dispositive portion of the decision reads:
"WHEREFORE, premises considered,
judgment is hereby rendered
1) Dismissing the complaint, with cost
against plaintiffs;
2) Confirming the ownership of defendant
Erlinda Agapay of the residential lot located at
Poblacion, Binalonan, Pangasinan, as
evidenced by TCT No. 143120, Lot 290-B
including the old house standing therein;
3) Confirming the ownership of one half
(1/2) portion of that piece of agricultural land
situated at Balisa, San Felipe, Binalonan,
Pangasinan, consisting of 10,080 square
meters and as evidenced by TCT No. 101736,
Lot 1123-A to Erlinda Agapay;
4) Adjudicating to Kristopher Palang as
his inheritance from his deceased father,
Miguel Palang, the one-half (1/2) of the
Agricultural land situated at Balisa, San
Felipe, Binalonan, Pangasinan, under TCT No.
101736 in the name of Miguel Palang,
provided that the former (Kristopher) executes,
within 15 days after this decision becomes
final and executory, a quit-claim forever
renouncing any claims to annul/reduce the
donation to Herminia Palang de la Cruz of all
conjugal properties of her parents, Miguel
Palang and Carlina Vallesterol Palang, dated
October 30, 1975, otherwise, the state of
deceased Miguel Palang will have to be settled
in another separate action;
5) No pronouncement as to damages and
attorney's fees.
SO ORDERED." 6
On appeal, respondent court reversed the trial
court's decision. The Court of Appeals
rendered its decision on July 22, 1994 within
the following dispositive portion:
"WHEREFORE, PREMISES CONSIDERED, the
appealed decision is hereby REVERSED and
another one entered:
1. Declaring plaintiffs-appellants the
owner of the properties in question;
2. Ordering defendant-appellee to vacate
and deliver the properties in question to
herein plaintiffs-appellants;
3. Ordering the Register of Deeds of
Pangasinan to cancel Transfer Certificate of
Title Nos. 143120 and 101736 and to issue in
lieu thereof another certificate of title in the
name of the plaintiffs-appellants.
No pronouncement as to costs." 7
Hence, this petition.
Petitioner claims that the Court of Appeals
erred in not sustaining the validity of two
deeds of absolute sale covering the riceland
and the house and lot, the first in favor of
Miguel Palang and Erlinda Agapay and the
second, in favor of Erlinda Agapay alone.
Second, petitioner contends that respondent
appellate court erred in not declaring
Kristopher A. Palang as Miguel Palang's
illegitimate son and thus entitled to inherit
from Miguel's estate. Third, respondent court
erred, according to petitioner, "in not finding
that there is a sufficient pleading and evidence
that Kristoffer A. Palang or Christopher A.
Palang should be considered as party
defendant in Civil Case No. U-4625 before the
trial court and in CA-G.R. No. 24199. 8
After studying the merits of the instant case,
as well as the pertinent provision of law and
jurisprudence, the Court denies the petition
and affirms the questioned decision of the
Court of Appeals.
The first and principal issue is the ownership
of the two pieces of property subject of this
action. Petitioner assails the validity of the
deeds of conveyance over the same parcels of
land. There is no dispute that the transfer of
ownership from the original owners of the
riceland and the house and lot, Corazon
Ilomin and the spouses Cespedes,
respectively, were valid.
The sale of the riceland on May 17, 1973, was
made in favor of Miguel and Erlinda. The
provision of law applicable here is Article 148
of the Family Code providing for cases of
cohabitation when a man or woman who are
not capacitated to marry each other live
exclusively with each other as husband and
wife without the benefit of marriage or under a
void marriage. While Miguel and Erlinda
contracted marriage on July 15, 1973, said
union was patently void because the earlier
marriage of Miguel and Carlina was still
subsisting and unaffected by the latter's de
facto separation.
Under Article 148, only the properties
acquired by both of the parties through their
actual joint contribution of money, property or
industry shall be owned by them in common
in proportion to their respective contributions.
It must be stressed that actual contribution is
required by this provision, in contrast to
Article 147 which states that efforts in the
care and maintenance of the family and
household, are regarded as contributions to
the acquisition of common property by one
who has no salary or income or work or
industry. If the actual contribution of the
party is not proved, there will be no co-
ownership and no presumption of equal
shares. 9 cda
In the case at bar, Erlinda tried to establish by
her testimony that she is engaged in the
business of buy and sell and had a sari-sari
store 10 but failed to persuade to us that she
actually contributed money to buy the subject
riceland. Worth noting is the fact that on the
date of the conveyance, May 17, 1973,
petitioner was only around twenty years of age
and Miguel Palang was already sixty-four and
a pensioner of the U.S. Government.
Considering her youthfulness, it is unrealistic
to conclude that in 1973 she contributed
P3,750.00 as her share in the purchase price
of subject property, 11 there being no proof of
the same.
Petitioner now claims that the riceland was
bought two months before Miguel and Erlinda
actually cohabited. In the nature of an
afterthought, said added assertion was
intended to exclude their case from operation
of Article 148 of the Family Code. Proof of the
precise date when they commenced their
adulterous cohabitation not having been
adduced, we cannot state definitively that the
riceland was purchased even before they
started living together. In any case, even
assuming that the subject property was
bought before cohabitation, the rules of co-
ownership would still apply and proof of
actual contribution would still be essential.
Since petitioner failed to prove that she
contributed money to the purchase price of
the riceland in Binalonan, Pangasinan, we
find no basis to justify her co-ownership with
Miguel over the same. Consequently, the
riceland should, as correctly held by the Court
of Appeals, revert to the conjugal partnership
property of the deceased Miguel and private
respondent Carlina Palang.
Furthermore, it is immaterial that Miguel and
Carlina previously agreed to donate their
conjugal property in favor of their daughter
Herminia in 1975. The trial court erred in
holding that the decision adopting their
compromise agreement "in effect partakes the
nature of judicial confirmation of the
separation of property between spouses and
the termination of the conjugal partnership."
12 Separation of property between spouse
during the marriage shall not take place
except by judicial order or without judicial
conferment when there is an express
stipulation in the marriage settlements. 13
The judgment which resulted from the parties'
compromise was not specifically and expressly
for separation of property and should not be
so inferred.
With respect to the house and lot, Erlinda
allegedly bought the same for P20,000.00 on
September 23, 1975 when she was only 22
years old. The testimony of the notary public
who prepared the deed of conveyance for the
property reveals the falsehood of this claim.
Atty. Constantino Sagun testified that Miguel
Palang provided the money for the purchase
price and directed that Erlinda's name alone
be placed as the vendee. 14
The transaction was properly a donation made
by Miguel to Erlinda, but one which was
clearly void and inexistent by express
provision of law because it was made between
persons guilty of adultery or concubinage at
the time of the donation, under Article 739 of
the Civil Code. Moreover, Article 87 of the
Family Code expressly provides that the
prohibition against donation between spouses
now applies to donations between persons
living together as husband and wife without a
valid marriage, 15 for otherwise, the condition
of those who incurred guilt would turn out to
be better than those in legal union. 16
The second issue concerning Kristopher
Palang's status and claim as an illegitimate
son and heir to Miguel's estate is here resolved
in favor of respondent court's correct
assessment that the trial court erred in
making pronouncements regarding
Kristopher's heirship and filiation "inasmuch
as questions as to who are the heirs of the
decedent, proof of filiation of illegitimate
children and the determination of the estate of
the latter and claims thereto should be
ventilated in the proper probate court or in a
special proceeding instituted for the purpose
and cannot be adjudicated in the instant
ordinary civil action which is for recovery of
ownership and possession." 17
As regards the third issue, petitioner contends
that Kristopher Palang should be considered
as party-defendant in the case at bar following
the trial court's decision which expressly
found that Kristopher had not been impleaded
as party defendant but theorized that he had
submitted to the court's jurisdiction through
his mother/guardian ad litem. 18 The trial
court erred gravely. Kristopher, not having
been impleaded, was therefore, not a party to
the case at bar. His mother, Erlinda, cannot
be called his guardian ad litem for he was not
involved in the case at bar. Petitioner adds
that there is no need for Kristopher to file
another action to prove that he is the
illegitimate son of Miguel, in order to avoid
multiplicity of suits. 19 Petitioner's grave error
has been discussed in the preceding
paragraph where the need for probate
proceedings to resolve the settlement of
Miguel's estate and Kristopher's successional
rights has been pointed out.
WHEREFORE, the instant petition is hereby
DENIED. The questioned decision of the Court
of Appeals is AFFIRMED. Costs against
petitioner.
SO ORDERED.
Regalado, Puno and Mendoza, JJ ., concur.
Torres, Jr., J ., is on leave.
SECOND DIVISION
[G.R. No. 202370. September 23, 2013.]
JUAN SEVILLA SALAS, JR., petitioner, vs.
EDEN VILLENA AGUILA, respondent.
DECISION
CARPIO, J p:
The Case
This petition for review on certiorari 1 assails
the 16 March 2012 Decision 2 and the 28
June 2012 Resolution 3 of the Court of
Appeals (CA) in CA-G.R. CV No. 95322. The
CA affirmed the 26 September 2008 Order 4 of
the Regional Trial Court of Nasugbu,
Batangas, Branch 14 (RTC), in Civil Case No.
787. TADcCS
The Facts
On 7 September 1985, petitioner Juan Sevilla
Salas, Jr. (Salas) and respondent Eden Villena
Aguila (Aguila) were married. On 7 June 1986,
Aguila gave birth to their daughter, Joan
Jiselle. Five months later, Salas left their
conjugal dwelling. Since then, he no longer
communicated with Aguila or their daughter.
On 7 October 2003, Aguila filed a Petition for
Declaration of Nullity of Marriage (petition)
citing psychological incapacity under Article
36 of the Family Code. The petition states that
they "have no conjugal properties whatsoever."
5 In the Return of Summons dated 13 October
2003, the sheriff narrated that Salas
instructed his mother Luisa Salas to receive
the copy of summons and the petition. 6
On 7 May 2007, the RTC rendered a Decision
7 declaring the nullity of the marriage of Salas
and Aguila (RTC Decision). The RTC Decision
further provides for the "dissolution of their
conjugal partnership of gains, if any." 8
IASTDE
On 10 September 2007, Aguila filed a
Manifestation and Motion 9 stating that she
discovered: (a) two 200-square-meter parcels
of land with improvements located in San
Bartolome, Quezon City, covered by Transfer
Certificate of Title (TCT) No. N-259299-A and
TCT No. N-255497; and (b) a 108-square-
meter parcel of land with improvement located
in Tondo, Manila, covered by TCT No. 243373
(collectively, "Discovered Properties"). The
registered owner of the Discovered Properties
is "Juan S. Salas, married to Rubina C.
Salas." The manifestation was set for hearing
on 21 September 2007. However, Salas' notice
of hearing was returned unserved with the
remark, "RTS Refused to Receive."
On 19 September 2007, Salas filed a
Manifestation with Entry of Appearance 10
requesting for an Entry of Judgment of the
RTC Decision since no motion for
reconsideration or appeal was filed and no
conjugal property was involved. aSTcCE
On 21 September 2007, the hearing for
Aguila's manifestation ensued, with Aguila,
her counsel and the state prosecutor present.
During the hearing, Aguila testified that on 17
April 2007 someone informed her of the
existence of the Discovered Properties.
Thereafter, she verified the information and
secured copies of TCTs of the Discovered
Properties. When asked to clarify, Aguila
testified that Rubina C. Salas (Rubina) is
Salas' common-law wife. 11
On 8 February 2008, Salas filed an Opposition
to the Manifestation 12 alleging that there is
no conjugal property to be partitioned based
on Aguila's petition. According to Salas,
Aguila's statement was a judicial admission
and was not made through palpable mistake.
Salas claimed that Aguila waived her right to
the Discovered Properties. Salas likewise
enumerated properties he allegedly waived in
favor of Aguila, to wit: (1) parcels of land with
improvements located in Sugar Landing
Subdivision, Alangilan, Batangas City; No.
176 Brias Street, Nasugbu, Batangas; P.
Samaniego Street, Silangan, Nasugbu,
Batangas; and Batangas City, financed by
Filinvest; (2) cash amounting to P200,000.00;
and (3) motor vehicles, specifically Honda City
and Toyota Tamaraw FX (collectively, "Waived
Properties"). Thus, Salas contended that the
conjugal properties were deemed partitioned.
cHaDIA
The Ruling of the Regional Trial Court
In its 26 September 2008 Order, the RTC
ruled in favor of Aguila. The dispositive
portion of the Order reads:
WHEREFORE, foregoing premises being
considered, the petitioner and the respondent
are hereby directed to partition between
themselves by proper instruments of
conveyance, the following properties, without
prejudice to the legitime of their legitimate
child, Joan Jisselle Aguila Salas:
(1) A parcel of land registered in the name
of Juan S. Salas married to Rubina C. Salas
located in San Bartolome, Quezon City and
covered by TCT No. N-259299-A marked as
Exhibit "A" and its improvements;
(2) A parcel of land registered in the name
of Juan S. Salas married to Rubina C. Salas
located in San Bartolome, Quezon City and
covered by TCT No. N-255497 marked as
Exhibit "B" and its improvements; TacADE
(3) A parcel of land registered in the name
of Juan S. Salas married to Rubina Cortez
Salas located in Tondo and covered by TCT
No. 243373-Ind. marked as Exhibit "D" and its
improvements.
Thereafter, the Court shall confirm the
partition so agreed upon by the parties, and
such partition, together with the Order of the
Court confirming the same, shall be recorded
in the Registry of Deeds of the place in which
the property is situated.
SO ORDERED. 13
The RTC held that pursuant to the Rules, 14
even upon entry of judgment granting the
annulment of marriage, the court can proceed
with the liquidation, partition and distribution
of the conjugal partnership of gains if it has
not been judicially adjudicated upon, as in
this case. The RTC found that the Discovered
Properties are among the conjugal properties
to be partitioned and distributed between
Salas and Aguila. However, the RTC held that
Salas failed to prove the existence of the
Waived Properties. ETHaDC
On 11 November 2008, Rubina filed a
Complaint-in-Intervention, claiming that: (1)
she is Rubina Cortez, a widow and unmarried
to Salas; (2) the Discovered Properties are her
paraphernal properties; (3) Salas did not
contribute money to purchase the Discovered
Properties as he had no permanent job in
Japan; (4) the RTC did not acquire jurisdiction
over her as she was not a party in the case;
and (5) she authorized her brother to
purchase the Discovered Properties but
because he was not well-versed with legal
documentation, he registered the properties in
the name of "Juan S. Salas, married to Rubina
C. Salas."
In its 16 December 2009 Order, the RTC
denied the Motion for Reconsideration filed by
Salas. The RTC found that Salas failed to
prove his allegation that Aguila transferred the
Waived Properties to third persons. The RTC
emphasized that it cannot go beyond the
TCTs, which state that Salas is the registered
owner of the Discovered Properties. The RTC
further held that Salas and Rubina were at
fault for failing to correct the TCTs, if they
were not married as they claimed.
Hence, Salas filed an appeal with the CA.
IaDSEA
The Ruling of the Court of Appeals
On 16 March 2012, the CA affirmed the order
of the RTC. 15 The CA ruled that Aguila's
statement in her petition is not a judicial
admission. The CA pointed out that the
petition was filed on 7 October 2003, but
Aguila found the Discovered Properties only
on 17 April 2007 or before the promulgation of
the RTC decision. Thus, the CA concluded
that Aguila was palpably mistaken in her
petition and it would be unfair to punish her
over a matter that she had no knowledge of at
the time she made the admission. The CA also
ruled that Salas was not deprived of the
opportunity to refute Aguila's allegations in
her manifestation, even though he was not
present in its hearing. The CA likewise held
that Rubina cannot collaterally attack a
certificate of title.
In a Resolution dated 28 June 2012, 16 the
CA denied the Motion for Reconsideration 17
filed by Salas. Hence, this petition.
The Issues
Salas seeks a reversal and raises the following
issues for resolution: DEAaIS
1. The Court of Appeals erred in affirming
the trial court's decision ordering the partition
of the parcels of land covered by TCT Nos. N-
259299-A and N-255497 in Quezon City and
as well as the property in Manila covered by
TCT No. 243373 between petitioner and
respondent.
2. The Court of Appeals erred in affirming
the trial court's decision in not allowing
Rubina C. Cortez to intervene in this case. 18
The Ruling of the Court
The petition lacks merit.
Since the original manifestation was an action
for partition, this Court cannot order a
division of the property, unless it first makes a
determination as to the existence of a co-
ownership. 19 Thus, the settlement of the
issue of ownership is the first stage in this
action. 20
Basic is the rule that the party making an
allegation in a civil case has the burden of
proving it by a preponderance of evidence. 21
Salas alleged that contrary to Aguila's petition
stating that they had no conjugal property,
they actually acquired the Waived Properties
during their marriage. However, the RTC
found, and the CA affirmed, that Salas failed
to prove the existence and acquisition of the
Waived Properties during their marriage:
CSTEHI
A perusal of the record shows that the
documents submitted by [Salas] as the
properties allegedly registered in the name of
[Aguila] are merely photocopies and not
certified true copies, hence, this Court cannot
admit the same as part of the records of this
case. These are the following:
(1) TCT No. T-65876 a parcel of land
located at Poblacion, Nasugbu, Batangas,
registered in the name of Eden A. Salas,
married to Juan Salas Jr. which is cancelled
by TCT No. T-105443 in the name of Joan
Jiselle A. Salas, single;
(2) TCT No. T-68066 a parcel of land
situated in the Barrio of Landing, Nasugbu,
Batangas, registered in the name of Eden A.
Salas, married to Juan S. Salas Jr.
Moreover, [Aguila] submitted original copy of
Certification issued by Ms. Erlinda A. Dasal,
Municipal Assessor of Nasugbu, Batangas,
certifying that [Aguila] has no real property
(land and improvement) listed in the
Assessment Roll for taxation purposes, as of
September 17, 2008. Such evidence, in the
absence of proof to the contrary, has the
presumption of regularity. . . . .
Suffice it to say that such real properties are
existing and registered in the name of [Aguila],
certified true copies thereof should have been
the ones submitted to this Court. Moreover,
there is also a presumption that properties
registered in the Registry of Deeds are also
declared in the Assessment Roll for taxation
purposes. 22 aESTAI
On the other hand, Aguila proved that the
Discovered Properties were acquired by Salas
during their marriage. Both the RTC and the
CA agreed that the Discovered Properties
registered in Salas' name were acquired
during his marriage with Aguila. The TCTs of
the Discovered Properties were entered on 2
July 1999 and 29 September 2003, or during
the validity of Salas and Aguila's marriage. In
Villanueva v. Court of Appeals, 23 we held
that the question of whether the properties
were acquired during the marriage is a factual
issue. Factual findings of the RTC, particularly
if affirmed by the CA, are binding on us,
except under compelling circumstances not
present in this case. 24
On Salas' allegation that he was not accorded
due process for failing to attend the hearing of
Aguila's manifestation, we find the allegation
untenable. The essence of due process is
opportunity to be heard. We hold that Salas
was given such opportunity when he filed his
opposition to the manifestation, submitted
evidence and filed his appeal. ADCIca
On both Salas and Rubina's contention that
Rubina owns the Discovered Properties, we
likewise find the contention unmeritorious.
The TCTs state that "Juan S. Salas, married to
Rubina C. Salas" is the registered owner of the
Discovered Properties. A Torrens title is
generally a conclusive evidence of the
ownership of the land referred to, because
there is a strong presumption that it is valid
and regularly issued. 25 The phrase "married
to" is merely descriptive of the civil status of
the registered owner. 26 Furthermore, Salas
did not initially dispute the ownership of the
Discovered Properties in his opposition to the
manifestation. It was only when Rubina
intervened that Salas supported Rubina's
statement that she owns the Discovered
Properties.
Considering that Rubina failed to prove her
title or her legal interest in the Discovered
Properties, she has no right to intervene in
this case. The Rules of Court provide that only
"a person who has a legal interest in the
matter in litigation, or in the success of either
of the parties, or an interest against both, or is
so situated as to be adversely affected by a
distribution or other disposition of property in
the custody of the court or of an officer thereof
may, with leave of court, be allowed to
intervene in the action." 27 IaSCTE
In Dio v. Dio, 28 we held that Article 147 of
the Family Code applies to the union of
parties who are legally capacitated and not
barred by any impediment to contract
marriage, but whose marriage is nonetheless
declared void under Article 36 of the Family
Code, as in this case. Article 147 of the Family
Code provides:
ART. 147. When a man and a woman who
are capacitated to marry each other, live
exclusively with each other as husband and
wife without the benefit of marriage or under a
void marriage, their wages and salaries shall
be owned by them in equal shares and the
property acquired by both of them through
their work or industry shall be governed by
the rules on co-ownership.
In the absence of proof to the contrary,
properties acquired while they lived together
shall be presumed to have been obtained by
their joint efforts, work or industry, and shall
be owned by them in equal shares. For
purposes of this Article, a party who did not
participate in the acquisition by the other
party of any property shall be deemed to have
contributed jointly in the acquisition thereof if
the former's efforts consisted in the care and
maintenance of the family and of the
household. CDHaET
Neither party can encumber or dispose by acts
inter vivos of his or her share in the property
acquired during cohabitation and owned in
common, without the consent of the other,
until after the termination of their
cohabitation.
When only one of the parties to a void
marriage is in good faith, the share of the
party in bad faith in the co-ownership shall be
forfeited in favor of their common children. In
case of default of or waiver by any or all of the
common children or their descendants, each
vacant share shall belong to the respective
surviving descendants. In the absence of
descendants, such share shall belong to the
innocent party. In all cases, the forfeiture
shall take place upon termination of the
cohabitation. (Emphasis supplied)
Under this property regime, property acquired
during the marriage is prima facie presumed
to have been obtained through the couple's
joint efforts and governed by the rules on co-
ownership. 29 In the present case, Salas did
not rebut this presumption. In a similar case
where the ground for nullity of marriage was
also psychological incapacity, we held that the
properties acquired during the union of the
parties, as found by both the RTC and the CA,
would be governed by co-ownership. 30
Accordingly, the partition of the Discovered
Properties as ordered by the RTC and the CA
should be sustained, but on the basis of co-
ownership and not on the regime of conjugal
partnership of gains. HIaTCc
WHEREFORE, we DENY the petition. We
AFFIRM the Decision dated 16 March 2012
and the Resolution dated 28 June 2012 of the
Court of Appeals in CA-G.R. CV No. 95322.
SO ORDERED.
Brion, Del Castillo, Perez and Perlas-Bernabe,
JJ., concur.
THIRD DIVISION
[G.R. No. 176492. October 20, 2014.]
MARIETTA N. BARRIDO, petitioner, vs.
LEONARDO V. NONATO, respondent.
DECISION
PERALTA, * J p:
For the Court's resolution is a Petition for
Review filed by petitioner Marietta N. Barrido
questioning the Decision 1 of the Court of
Appeals (CA), dated November 16, 2006, and
its Resolution 2 dated January 24, 2007 in
CA-G.R. SP No. 00235. The CA affirmed the
Decision 3 of the Regional Trial Court (RTC) of
Bacolod City, Branch 53, dated July 21, 2004,
in Civil Case No. 03-12123, which ordered the
partition of the subject property.
The facts, as culled from the records, are as
follows: IACDaS
In the course of the marriage of respondent
Leonardo V. Nonato and petitioner Marietta N.
Barrido, they were able to acquire a property
situated in Eroreco, Bacolod City, consisting
of a house and lot, covered by Transfer
Certificate of Title (TCT) No. T-140361. On
March 15, 1996, their marriage was declared
void on the ground of psychological
incapacity. Since there was no more reason to
maintain their co-ownership over the property,
Nonato asked Barrido for partition, but the
latter refused. Thus, on January 29, 2003,
Nonato filed a Complaint for partition before
the Municipal Trial Court in Cities (MTCC) of
Bacolod City, Branch 3.
Barrido claimed, by way of affirmative defense,
that the subject property had already been
sold to their children, Joseph Raymund and
Joseph Leo. She likewise moved for the
dismissal of the complaint because the MTCC
lacked jurisdiction, the partition case being an
action incapable of pecuniary estimation.
The Bacolod MTCC rendered a Decision dated
September 17, 2003, applying Article 129 of
the Family Code. It ruled in this wise:
EISCaD
WHEREFORE, PREMISES CONSIDERED,
judgment is hereby rendered, ordering the
conjugal property of the former Spouses
Leonardo and Marietta Nonato, a house and
lot covered by TCT No. T-140361 located at
Eroreco, Bacolod City, which was their
conjugal dwelling, adjudicated to the
defendant Marietta Nonato, the spouse with
whom the majority of the common children
choose to remain.
Furthermore, defendant's counterclaim is
hereby granted, ordering plaintiff to pay
defendant P10,000.00 as moral damages for
the mental anguish and unnecessary
inconvenience brought about by this suit; and
an additional P10,000.00 as exemplary
damages to deter others from following suit;
and attorney's fees of P2,000.00 and litigation
expenses of P575.00.
SO ORDERED. 4
Nonato appealed the MTCC Decision before
the RTC. On July 21, 2004, the Bacolod RTC
reversed the ruling of the MTCC. It found that
even though the MTCC aptly applied Article
129 of the Family Code, it nevertheless made
a reversible error in adjudicating the subject
property to Barrido. Its dispositive portion
reads: EHACcT
WHEREFORE, premises considered, the
decision dated September 17, 2003 is hereby
REVERSED and SET ASIDE and a new
judgment is hereby rendered ordering the
parties:
(1) to equitably partition the house and lot
covered by TCT No. T-140361;
(2) to reimburse Joseph Raymund and
Joseph Leo Nonato of the amount advanced by
them in payment of the debts and obligation of
TCT No. T-140361 with Philippine National
Bank;
(3) to deliver the presumptive legitimes of
Joseph Raymund and Joseph Leo Nonato
pursuant to Article 51 of the Family Code.
SO ORDERED. 5
Upon appeal, the CA affirmed the RTC
Decision on November 16, 2006. It held that
since the property's assessed value was only
P8,080.00, it clearly fell within the MTCC's
jurisdiction. Also, although the RTC erred in
relying on Article 129 of the Family Code,
instead of Article 147, the dispositive portion
of its decision still correctly ordered the
equitable partition of the property. Barrido
filed a Motion for Reconsideration, which was,
however, denied for lack of merit. TDcEaH
Hence, Barrido brought the case to the Court
via a Petition for Review. She assigned the
following errors in the CA Decision:
I.
THE HONORABLE COURT OF APPEALS
ERRED IN HOLDING THAT THE MTCC HAD
JURISDICTION TO TRY THE PRESENT CASE.
II.
THE HONORABLE COURT OF APPEALS
ERRED IN HOLDING THAT THE LOT
COVERED BY TCT NO. T-140361 IS
CONJUGAL AFTER BEING SOLD TO THE
CHILDREN, JOSEPH LEO NONATO AND
JOSEPH RAYMUND NONATO.
III.
THE HONORABLE COURT OF APPEALS
ERRED IN HOLDING THAT ARTICLE 129 OF
THE FAMILY CODE HAS NO APPLICATION IN
THE PRESENT CASE, ON THE ASSUMPTION
THAT THE TRIAL COURT HAD JURISDICTION
OVER THE CASE. 6
The petition lacks merit. EHaCTA
Contrary to Barrido's contention, the MTCC
has jurisdiction to take cognizance of real
actions or those affecting title to real property,
or for the recovery of possession, or for the
partition or condemnation of, or foreclosure of
a mortgage on real property. 7 Section 33 of
Batas Pambansa Bilang 129 8 provides:
Section 33. Jurisdiction of Metropolitan Trial
Courts, Municipal Trial Courts and Municipal
Circuit Trial Courts in civil cases.
Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts
shall exercise:
xxx xxx xxx
(3) Exclusive original jurisdiction in all civil
actions which involve title to, or possession of,
real property, or any interest therein where
the assessed value of the property or interest
therein does not exceed Twenty thousand
pesos (P20,000.00) or, in civil actions in Metro
Manila, where such assessed value does not
exceed Fifty thousand pesos (P50,000.00)
exclusive of interest, damages of whatever
kind, attorney's fees, litigation expenses and
costs: Provided, That value of such property
shall be determined by the assessed value of
the adjacent lots. (as amended by R.A. No.
7691) 9 ESacHC
Here, the subject property's assessed value
was merely P8,080.00, an amount which
certainly does not exceed the required limit of
P20,000.00 for civil actions outside Metro
Manila to fall within the jurisdiction of the
MTCC. Therefore, the lower court correctly
took cognizance of the instant case.
The records reveal that Nonato and Barrido's
marriage had been declared void for
psychological incapacity under Article 36 10 of
the Family Code. During their marriage,
however, the conjugal partnership regime
governed their property relations. Although
Article 129 11 provides for the procedure in
case of dissolution of the conjugal partnership
regime, Article 147 specifically covers he
effects of void marriages on the spouses'
property relations. Article 147 reads:
Art. 147. When a man and a woman who
are capacitated to marry each other, live
exclusively with each other as husband and
wife without the benefit of marriage or under a
void marriage, their wages and salaries shall
be owned by them in equal shares and the
property acquired by both of them through
their work or industry shall be governed by
the rules on co-ownership. aSITDC
In the absence of proof to the contrary,
properties acquired while they lived together
shall be presumed to have been obtained by
their joint efforts, work or industry, and shall
be owned by them in equal shares. For
purposes of this Article, a party who did not
participate in the acquisition by the other
party of any property shall be deemed to have
contributed jointly in the acquisition thereof if
the former's efforts consisted in the care and
maintenance of the family and of the
household.
Neither party can encumber or dispose by acts
inter vivos of his or her share in the property
acquired during cohabitation and owned in
common, without the consent of the other,
until after the termination of their
cohabitation.
When only one of the parties to a void
marriage is in good faith, the share of the
party in bad faith in the co-ownership shall be
forfeited in favor of their common children. In
case of default of or waiver by any or all of the
common children or their descendants, each
vacant share shall belong to the respective
surviving descendants. In the absence of
descendants, such share shall belong to the
innocent party. In all cases, the forfeiture
shall take place upon termination of the
cohabitation. aDHCcE
This particular kind of co-ownership applies
when a man and a woman, suffering no illegal
impediment to marry each other, exclusively
live together as husband and wife under a
void marriage or without the benefit of
marriage. 12 It is clear, therefore, that for
Article 147 to operate, the man and the
woman: (1) must be capacitated to marry each
other; (2) live exclusively with each other as
husband and wife; and (3) their union is
without the benefit of marriage or their
marriage is void. Here, all these elements are
present. 13 The term "capacitated" in the first
paragraph of the provision pertains to the
legal capacity of a party to contract marriage.
14 Any impediment to marry has not been
shown to have existed on the part of either
Nonato or Barrido. They lived exclusively with
each other as husband and wife. However,
their marriage was found to be void under
Article 36 of the Family Code on the ground of
psychological incapacity. 15
Under this property regime, property acquired
by both spouses through their work and
industry shall be governed by the rules on
equal co-ownership. Any property acquired
during the union is prima facie presumed to
have been obtained through their joint efforts.
A party who did not participate in the
acquisition of the property shall be considered
as having contributed to the same jointly if
said party's efforts consisted in the care and
maintenance of the family household. 16
Efforts in the care and maintenance of the
family and household are regarded as
contributions to the acquisition of common
property by one who has no salary or income
or work or industry. 17 aCcEHS
In the analogous case of Valdez, 18 it was
likewise averred that the trial court failed to
apply the correct law that should govern the
disposition of a family dwelling in a situation
where a marriage is declared void ab initio
because of psychological incapacity on the
part of either or both parties in the contract of
marriage. The Court held that the court a quo
did not commit a reversible error in utilizing
Article 147 of the Family Code and in ruling
that the former spouses own the family home
and all their common property in equal
shares, as well as in concluding that, in the
liquidation and partition of the property that
they owned in common, the provisions on co-
ownership under the Civil Code should aptly
prevail. 19 The rules which are set up to
govern the liquidation of either the absolute
community or the conjugal partnership of
gains, the property regimes recognized for
valid and voidable marriages, are irrelevant to
the liquidation of the co-ownership that exists
between common-law spouses or spouses of
void marriages. 20
Here, the former spouses both agree that they
acquired the subject property during the
subsistence of their marriage. Thus, it shall be
presumed to have been obtained by their joint
efforts, work or industry, and shall be jointly
owned by them in equal shares. Barrido,
however, claims that the ownership over the
property in question is already vested on their
children, by virtue of a Deed of Sale. But aside
from the title to the property still being
registered in the names of the former spouses,
said document of sale does not bear a
notarization of a notary public. It must be
noted that without the notarial seal, a
document remains to be private and cannot be
converted into a public document, 21 making
it inadmissible in evidence unless properly
authenticated. 22 Unfortunately, Barrido
failed to prove its due execution and
authenticity. In fact, she merely annexed said
Deed of Sale to her position paper. Therefore,
the subject property remains to be owned in
common by Nonato and Barrido, which should
be divided in accordance with the rules on co-
ownership. TSHIDa
WHEREFORE, premises considered, the
petition is DENIED. The Decision of the Court
of Appeals, dated November 16, 2006, as well
as its Resolution dated January 24, 2007 in
CA-G.R. SP No. 00235, are hereby AFFIRMED.
SO ORDERED.
Villarama, Jr., Reyes, Perlas-Bernabe ** and
Jardeleza, JJ., concur.
THIRD DIVISION
[G.R. No. 143439. October 14, 2005.]
MAXIMO ALVAREZ, petitioner, vs. SUSAN
RAMIREZ, respondent.
DECISION
SANDOVAL-GUTIERREZ, J p:
Before us is a petition for review on certiorari
1 assailing the Decision 2 of the Court of
Appeals dated May 31, 2000 in CA-G.R. SP
No. 56154, entitled "SUSAN RAMIREZ,
petitioner, versus, HON. BENJAMIN M.
AQUINO, JR., as JUDGE RTC, MALABON,
MM, BR. 72, and MAXIMO ALVAREZ,
respondents." STaIHc
Susan Ramirez, herein respondent, is the
complaining witness in Criminal Case No.
19933-MN for arson 3 pending before the
Regional Trial Court, Branch 72, Malabon
City. The accused is Maximo Alvarez, herein
petitioner. He is the husband of Esperanza G.
Alvarez, sister of respondent.
On June 21, 1999, the private prosecutor
called Esperanza Alvarez to the witness stand
as the first witness against petitioner, her
husband. Petitioner and his counsel raised no
objection.
Esperanza testified as follows:
"ATTY. ALCANTARA:
We are calling Mrs. Esperanza Alvarez,
the wife of the accused, Your Honor.
COURT:
Swear in the witness.
xxx xxx xxx
ATTY. MESIAH: (sic)
Your Honor, we are offering the
testimony of this witness for the purpose of
proving that the accused Maximo Alvarez
committed all the elements of the crime being
charged particularly that accused Maximo
Alvarez pour on May 29, 1998 gasoline in the
house located at Blk. 5, Lot 9, Phase 1-C,
Dagat-dagatan, Navotas, Metro Manila, the
house owned by his sister-in-law Susan
Ramirez; that accused Maximo Alvarez after
pouring the gasoline on the door of the house
of Susan Ramirez ignited and set it on fire;
that the accused at the time he successfully
set the house on fire (sic) of Susan Ramirez
knew that it was occupied by Susan Ramirez,
the members of the family as well as
Esperanza Alvarez, the estranged wife of the
accused; that as a consequence of the accused
in successfully setting the fire to the house of
Susan Ramirez, the door of said house was
burned and together with several articles of
the house, including shoes, chairs and others.
COURT:
You may proceed.
xxx xxx xxx
DIRECT EXAMINATION
ATTY. ALCANTARA:
xxx xxx xxx
Q: When you were able to find the source,
incidentally what was the source of that
scent?
A: When I stand by the window, sir, I saw
a man pouring the gasoline in the house of my
sister (and witness pointing to the person of
the accused inside the court room).
Q: For the record, Mrs. Witness, can you
state the name of that person, if you know?
A: He is my husband, sir, Maximo Alvarez.
Q: If that Maximo Alvarez you were able to
see, can you identify him?
A: Yes, sir.
Q: If you can see him inside the Court
room, can you please point him?
A: Witness pointing to a person and when
asked to stand and asked his name, he gave
his name as Maximo Alvarez." 4
In the course of Esperanza's direct testimony
against petitioner, the latter showed
"uncontrolled emotions," prompting the trial
judge to suspend the proceedings. cADTSH
On June 30, 1999, petitioner, through
counsel, filed a motion 5 to disqualify
Esperanza from testifying against him
pursuant to Rule 130 of the Revised Rules of
Court on marital disqualification.
Respondent filed an opposition 6 to the
motion. Pending resolution of the motion, the
trial court directed the prosecution to proceed
with the presentation of the other witnesses.
On September 2, 1999, the trial court issued
the questioned Order disqualifying Esperanza
Alvarez from further testifying and deleting
her testimony from the records. 7 The
prosecution filed a motion for reconsideration
but was denied in the other assailed Order
dated October 19, 1999. 8
This prompted respondent Susan Ramirez, the
complaining witness in Criminal Case No.
19933-MN, to file with the Court of Appeals a
petition for certiorari 9 with application for
preliminary injunction and temporary
restraining order. 10
On May 31, 2000, the Appellate Court
rendered a Decision nullifying and setting
aside the assailed Orders issued by the trial
court.
Hence, this petition for review on certiorari.
The issue for our resolution is whether
Esperanza Alvarez can testify against her
husband in Criminal Case No. 19933-MN.
Section 22, Rule 130 of the Revised Rules of
Court provides:
"Sec. 22. Disqualification by reason of
marriage. During their marriage, neither
the husband nor the wife may testify for or
against the other without the consent of the
affected spouse, except in a civil case by one
against the other, or in a criminal case for a
crime committed by one against the other or
the latter's direct descendants or ascendants."
The reasons given for the rule are:
1. There is identity of interests between
husband and wife;
2. If one were to testify for or against the
other, there is consequent danger of perjury;
3. The policy of the law is to guard the
security and confidences of private life, even at
the risk of an occasional failure of justice, and
to prevent domestic disunion and
unhappiness; and
4. Where there is want of domestic
tranquility there is danger of punishing one
spouse through the hostile testimony of the
other. 11
But like all other general rules, the marital
disqualification rule has its own exceptions,
both in civil actions between the spouses and
in criminal cases for offenses committed by
one against the other. Like the rule itself, the
exceptions are backed by sound reasons
which, in the excepted cases, outweigh those
in support of the general rule. For instance,
where the marital and domestic relations are
so strained that there is no more harmony to
be preserved nor peace and tranquility which
may be disturbed, the reason based upon
such harmony and tranquility fails. In such a
case, identity of interests disappears and the
consequent danger of perjury based on that
identity is non-existent. Likewise, in such a
situation, the security and confidences of
private life, which the law aims at protecting,
will be nothing but ideals, which through their
absence, merely leave a void in the unhappy
home. 12
In Ordoo vs. Daquigan, 13 this Court held:
"We think that the correct rule, which may be
adopted in this jurisdiction, is that laid down
in Cargil vs. State, 35 ALR 133, 220 Pac. 64,
25 Okl. 314, wherein the court said:
'The rule that the injury must amount to a
physical wrong upon the person is too narrow;
and the rule that any offense remotely or
indirectly affecting domestic harmony comes
within the exception is too broad. The better
rule is that, when an offense directly attacks,
or directly and vitally impairs, the conjugal
relation, it comes within the exception to the
statute that one shall not be a witness against
the other except in a criminal prosecution for
a crime committee (by) one against the other.'"
Obviously, the offense of arson attributed to
petitioner, directly impairs the conjugal
relation between him and his wife Esperanza.
His act, as embodied in the Information for
arson filed against him, eradicates all the
major aspects of marital life such as trust,
confidence, respect and love by which virtues
the conjugal relationship survives and
flourishes. cCTESa
As correctly observed by the Court of Appeals:
"The act of private respondent in setting fire to
the house of his sister-in-law Susan Ramirez,
knowing fully well that his wife was there, and
in fact with the alleged intent of injuring the
latter, is an act totally alien to the harmony
and confidences of marital relation which the
disqualification primarily seeks to protect. The
criminal act complained of had the effect of
directly and vitally impairing the conjugal
relation. It underscored the fact that the
marital and domestic relations between her
and the accused-husband have become so
strained that there is no more harmony, peace
or tranquility to be preserved. The Supreme
Court has held that in such a case, identity is
non-existent. In such a situation, the security
and confidences of private life which the law
aims to protect are nothing but ideals which
through their absence, merely leave a void in
the unhappy home. (People v. Castaeda, 271
SCRA 504). Thus, there is no longer any
reason to apply the Marital Disqualification
Rule."
It should be stressed that as shown by the
records, prior to the commission of the
offense, the relationship between petitioner
and his wife was already strained. In fact, they
were separated de facto almost six months
before the incident. Indeed, the evidence and
facts presented reveal that the preservation of
the marriage between petitioner and
Esperanza is no longer an interest the State
aims to protect.
At this point, it bears emphasis that the State,
being interested in laying the truth before the
courts so that the guilty may be punished and
the innocent exonerated, must have the right
to offer the direct testimony of Esperanza,
even against the objection of the accused,
because (as stated by this Court in Francisco
14 ), "it was the latter himself who gave rise to
its necessity." ADcSHC
WHEREFORE, the Decision of the Court of
Appeals is AFFIRMED. The trial court, RTC,
Branch 72, Malabon City, is ordered to allow
Esperanza Alvarez to testify against petitioner,
her husband, in Criminal Case No. 19933-MN.
Costs against petitioner.
SO ORDERED.
Panganiban, Corona, Carpio-Morales and
Garcia, JJ., concur.
FIRST DIVISION
[G.R. No. 154132. August 31, 2006.]
HIYAS SAVINGS and LOAN BANK, INC.,
petitioner, vs. HON. EDMUNDO T. ACUA,
in his capacity as Pairing Judge of Regional
Trial Court, Branch 122, Caloocan City,
and ALBERTO MORENO, respondents.
DECISION
AUSTRIA-MARTINEZ, J p:
Before the Court is a petition for certiorari
under Rule 65 of the Rules of Court seeking to
nullify the Orders 1 of the Regional Trial Court
(RTC) of Caloocan City, Branch 122, dated
November 8, 2001 2 and May 7, 2002 3
denying herein petitioner's Motion to Dismiss
and Motion for Partial Reconsideration,
respectively. DHAcET
The antecedent facts are as follows:
On November 24, 2000, Alberto Moreno
(private respondent) filed with the RTC of
Caloocan City a complaint against Hiyas
Savings and Loan Bank, Inc. (petitioner), his
wife Remedios, the spouses Felipe and Maria
Owe and the Register of Deeds of Caloocan
City for cancellation of mortgage contending
that he did not secure any loan from
petitioner, nor did he sign or execute any
contract of mortgage in its favor; that his wife,
acting in conspiracy with Hiyas and the
spouses Owe, who were the ones that
benefited from the loan, made it appear that
he signed the contract of mortgage; that he
could not have executed the said contract
because he was then working abroad. 4
On May 17, 2001, petitioner filed a Motion to
Dismiss on the ground that private
respondent failed to comply with Article 151 of
the Family Code wherein it is provided that no
suit between members of the same family
shall prosper unless it should appear from the
verified complaint or petition that earnest
efforts toward a compromise have been made,
but that the same have failed. Petitioner
contends that since the complaint does not
contain any fact or averment that earnest
efforts toward a compromise had been made
prior to its institution, then the complaint
should be dismissed for lack of cause of
action. 5
Private respondent filed his Comment on the
Motion to Dismiss with Motion to Strike Out
and to Declare Defendants in Default. He
argues that in cases where one of the parties
is not a member of the same family as
contemplated under Article 150 of the Family
Code, failure to allege in the complaint that
earnest efforts toward a compromise had been
made by the plaintiff before filing the
complaint is not a ground for a motion to
dismiss. Alberto asserts that since three of the
party-defendants are not members of his
family the ground relied upon by Hiyas in its
Motion to Dismiss is inapplicable and
unavailable. Alberto also prayed that
defendants be declared in default for their
failure to file their answer on time. 6
Petitioner filed its Reply to the Comment with
Opposition to the Motion to Strike and to
Declare Defendants in Default. 7 Private
respondent, in turn, filed his Rejoinder. 8
On November 8, 2001, the RTC issued the
first of its assailed Orders denying the Motion
to Dismiss, thus:
The court agrees with plaintiff that earnest
efforts towards a compromise is not required
before the filing of the instant case considering
that the above-entitled case involves parties
who are strangers to the family. As aptly
pointed out in the cases cited by plaintiff,
Magbaleta v. G[o]nong, L-44903, April 25,
1977 and Mendez v. [B]iangon, L-32159,
October 28, 1977, if one of the parties is a
stranger, failure to allege in the complaint that
earnest efforts towards a compromise had
been made by plaintiff before filing the
complaint, is not a ground for motion to
dismiss. DcaECT
Insofar as plaintiff's prayer for declaration of
default against defendants, the same is
meritorious only with respect to defendants
Remedios Moreno and the Register of Deeds of
Kaloocan City. A declaration of default against
defendant bank is not proper considering that
the filing of the Motion to Dismiss by said
defendant operates to stop the running of the
period within which to file the required
Answer. 9
Petitioner filed a Motion for Partial
Reconsideration. 10 Private respondent filed
his Comment, 11 after which petitioner filed
its Reply. 12 Thereafter, private respondent
filed his Rejoinder. 13
On May 7, 2002, the RTC issued the second
assailed Order denying petitioner's Motion for
Partial Reconsideration. The trial court ruled:
Reiterating the resolution of the court, dated
November 8, 2001, considering that the
above-entitled case involves parties who are
strangers to the family, failure to allege in the
complaint that earnest efforts towards a
compromise were made by plaintiff, is not a
ground for a Motion to Dismiss.
Additionally, the court agrees with plaintiff
that inasmuch as it is defendant Remedios
Moreno who stands to be benefited by Art. 151
of the Family Code, being a member of the
same family as that of plaintiff, only she may
invoke said Art. 151. 14
xxx xxx xxx
Hence, the instant Petition for Certiorari on
the following grounds:
I. Public respondent committed grave
abuse of discretion amounting to lack or in
excess of jurisdiction when he ruled that lack
of earnest efforts toward a compromise is not
a ground for a motion to dismiss in suits
between husband and wife when other parties
who are strangers to the family are involved in
the suit. Corollarily, public respondent
committed grave abuse of discretion
amounting to lack or in excess of jurisdiction
when he applied the decision in the case of
Magbaleta v. Gonong instead of the ruling in
the case of De Guzman v. Genato. IaEASH
II. Public respondent committed grave
abuse of discretion amounting to lack or in
excess of jurisdiction when he ruled that a
party who is a stranger to the family of the
litigants could not invoke lack of earnest
efforts toward a compromise as a ground for
the dismissal of the complaint. 15
At the outset, the Court notes that the instant
Petition for Certiorari should have been filed
with the Court of Appeals (CA) and not with
this Court pursuant to the doctrine of
hierarchy of courts. Reiterating the
established policy for the strict observance of
this doctrine, this Court held in Heirs of
Bertuldo Hinog v. Melicor 16 that:
Although the Supreme Court, Court of
Appeals and the Regional Trial Courts have
concurrent jurisdiction to issue writs of
certiorari, prohibition, mandamus, quo
warranto, habeas corpus and injunction, such
concurrence does not give the petitioner
unrestricted freedom of choice of court forum.
As we stated in People v. Cuaresma:
This Court's original jurisdiction to issue writs
of certiorari is not exclusive. It is shared by
this Court with Regional Trial Courts and with
the Court of Appeals. This concurrence of
jurisdiction is not, however, to be taken as
according to parties seeking any of the writs
an absolute, unrestrained freedom of choice of
the court to which application therefor will be
directed. There is after all a hierarchy of
courts. That hierarchy is determinative of the
venue of appeals, and also serves as a general
determinant of the appropriate forum for
petitions for the extraordinary writs. A
becoming regard for that judicial hierarchy
most certainly indicates that petitions for the
issuance of extraordinary writs against first
level ("inferior") courts should be filed with the
Regional Trial Court, and those against the
latter, with the Court of Appeals. A direct
invocation of the Supreme Court's original
jurisdiction to issue these writs should be
allowed only when there are special and
important reasons therefor, clearly and
specifically set out in the petition. This is [an]
established policy. It is a policy necessary to
prevent inordinate demands upon the Court's
time and attention which are better devoted to
those matters within its exclusive jurisdiction,
and to prevent further over-crowding of the
Court's docket. EcHaAC
The rationale for this rule is two-fold: (a) it
would be an imposition upon the precious
time of this Court; and (b) it would cause an
inevitable and resultant delay, intended or
otherwise, in the adjudication of cases, which
in some instances had to be remanded or
referred to the lower court as the proper forum
under the rules of procedure, or as better
equipped to resolve the issues because this
Court is not a trier of facts.
Thus, this Court will not entertain direct
resort to it unless the redress desired cannot
be obtained in the appropriate courts, and
exceptional and compelling circumstances,
such as cases of national interest and of
serious implications, justify the availment of
the extraordinary remedy of writ of certiorari,
calling for the exercise of its primary
jurisdiction. Exceptional and compelling
circumstances were held present in the
following cases: (a) Chavez vs. Romulo on
citizens' right to bear arms; (b) Government of
the United States of America vs. Purganan on
bail in extradition proceedings; (c)
Commission on Elections vs. Quijano-Padilla
on government contract involving
modernization and computerization of voters'
registration list; (d) Buklod ng Kawaning EIIB
vs. Zamora on status and existence of a public
office; and (e) Fortich vs. Corona on the so-
called "Win-Win Resolution" of the Office of
the President which modified the approval of
the conversion to agro-industrial area. 17
In the present case, petitioner failed to
advance a satisfactory explanation as to its
failure to comply with the principle of judicial
hierarchy. There is no reason why the instant
petition could not have been brought before
the CA. On this basis, the instant petition
should be dismissed.
And even if this Court passes upon the
substantial issues raised by petitioner, the
instant petition likewise fails for lack of merit.
Restating its arguments in its Motion for
Partial Reconsideration, petitioner argues that
what is applicable to the present case is the
Court's decision in De Guzman v. Genato 18
and not in Magbaleta v. Gonong, 19 the
former being a case involving a husband and
wife while the latter is between brothers.
SAHITC
The Court is not persuaded.
Article 151 of the Family Code provides as
follows:
No suit between members of the same family
shall prosper unless it should appear from the
verified complaint or petition that earnest
efforts toward a compromise have been made,
but that the same have failed. If it is shown
that no such efforts were in fact made, the
case must be dismissed.
This rule shall not apply to cases which may
not be the subject of compromise under the
Civil Code.
Article 222 of the Civil Code from which
Article 151 of the Family Code was taken,
essentially contains the same provisions, to
wit:
No suit shall be filed or maintained between
members of the same family unless it should
appear that earnest efforts toward a
compromise have been made, but that the
same have failed, subject to the limitations in
Article 2035. 20
The Code Commission that drafted Article 222
of the Civil Code from which Article 151 of the
Family Code was taken explains:
[I]t is difficult to imagine a sadder and more
tragic spectacle than a litigation between
members of the same family. It is necessary
that every effort should be made toward a
compromise before a litigation is allowed to
breed hate and passion in the family. It is
known that a lawsuit between close relatives
generates deeper bitterness than between
strangers. 21
In Magbaleta, the case involved brothers and a
stranger to the family, the alleged owner of the
subject property. The Court, taking into
consideration the explanation made by the
Code Commission in its report, ruled that:
aCcEHS
[T]hese considerations do not, however, weigh
enough to make it imperative that such efforts
to compromise should be a jurisdictional pre-
requisite for the maintenance of an action
whenever a stranger to the family is a party
thereto, whether as a necessary or
indispensable one. It is not always that one
who is alien to the family would be willing to
suffer the inconvenience of, much less relish,
the delay and the complications that
wranglings between or among relatives more
often than not entail. Besides, it is neither
practical nor fair that the determination of the
rights of a stranger to the family who just
happened to have innocently acquired some
kind of interest in any right or property
disputed among its members should be made
to depend on the way the latter would settle
their differences among themselves. 22 . . . .
Hence, once a stranger becomes a party to a
suit involving members of the same family, the
law no longer makes it a condition precedent
that earnest efforts be made towards a
compromise before the action can prosper.
In the subsequent case of De Guzman, the
case involved spouses and the alleged
paramour of the wife. The Court ruled that
due to the efforts exerted by the husband,
through the Philippine Constabulary, to
confront the wife, there was substantial
compliance with the law, thereby implying
that even in the presence of a party who is not
a family member, the requirements that
earnest efforts towards a compromise have
been exerted must be complied with, pursuant
to Article 222 of the Civil Code, now Article
151 of the Family Code.
While De Guzman was decided after
Magbaleta, the principle enunciated in the
Magbaleta is the one that now prevails
because it is reiterated in the subsequent
cases of Gonzales v. Lopez, 23 Esquivias v.
Court of Appeals, 24 Spouses Hontiveros v.
Regional Trial Court, Branch 25, Iloilo City, 25
and the most recent case of Martinez v.
Martinez. 26 Thus, Article 151 of the Family
Code applies to cover when the suit is
exclusively between or among family
members. AcICTS
invoke the provisions of Article 151 of the
Family Code.
Suffice it to say that since the Court has ruled
that the requirement under Article 151 of the
Family Code is applicable only in cases which
are exclusively between or among members of
the same family, it necessarily follows that the
same may be invoked only by a party who is a
member of that same family.

The Court finds no cogent reason why the WHEREFORE, the instant Petition for
ruling in Magbaleta as well as in all of the Certiorari is DISMISSED for lack of merit.
aforementioned cases should not equally ASEIDH
apply to suits involving husband and wife. Costs against petitioner.
Petitioner makes much of the fact that the SO ORDERED.
present case involves a husband and his wife
while Magbaleta is a case between brothers. Panganiban, C.J., Ynares-Santiago, Callejo,
However, the Court finds no specific, unique, Sr. and Chico-Nazario, JJ., concur.
or special circumstance that would make the
ruling in Magbaleta as well as in the
abovementioned cases inapplicable to suits
involving a husband and his wife, as in the
present case. In the first place, Article 151 of
the Family Code and Article 222 of the Civil
Code are clear that the provisions therein
apply to suits involving "members of the same
family" as contemplated under Article 150 of
the Family Code, to wit:

ART. 150. Family relations include those:

(1) Between husband and wife;

(2) Between parents and children;

(3) Among other ascendants and

descendants; and

(4) Among brothers and sisters, whether of

the full or half blood.

and Article 217 of the Civil Code, to wit:

ART. 217. Family relations shall include

those:

(1) Between husband and wife;

(2) Between parent and child;

(3) Among other ascendants and their

descendants;

(4) Among brothers and sisters. ATHCac

Petitioner also contends that the trial court

committed grave abuse of discretion when it
ruled that petitioner, not being a member of
the same family as respondent, may not
FIRST DIVISION
[G.R. No. 170829. November 20, 2006.]
PERLA G. PATRICIO, petitioner, vs.
MARCELINO G. DARIO III and THE
HONORABLE COURT OF APPEALS, Second
Division, respondents.
DECISION
YNARES-SANTIAGO, J p:
This petition for review on certiorari under
Rule 45 of the Rules of Court seeks to annul
and set aside the Resolution of the Court of
Appeals dated December 9, 2005 1 in CA-G.R.
CV No. 80680, which dismissed the complaint
for partition filed by petitioner for being
contrary to law and evidence. CDESIA
On July 5, 1987, Marcelino V. Dario died
intestate. He was survived by his wife,
petitioner Perla G. Patricio and their two sons,
Marcelino Marc Dario and private respondent
Marcelino G. Dario III. Among the properties
he left was a parcel of land with a residential
house and a pre-school building built thereon
situated at 91 Oxford corner Ermin Garcia
Streets in Cubao, Quezon City, as evidenced
by Transfer Certificate of Title (TCT) No. RT-
30731 (175992) of the Quezon City Registry of
Deeds, covering an area of seven hundred fifty
five (755) square meters, more or less. 2
On August 10, 1987, petitioner, Marcelino
Marc and private respondent, extrajudicially
settled the estate of Marcelino V. Dario.
Accordingly, TCT No. RT-30731 (175992) was
cancelled and TCT No. R-213963 was issued
in the names of petitioner, private respondent
and Marcelino Marc.
Thereafter, petitioner and Marcelino Marc
formally advised private respondent of their
intention to partition the subject property and
terminate the co-ownership. Private
respondent refused to partition the property
hence petitioner and Marcelino Marc
instituted an action for partition before the
Regional Trial Court of Quezon City which was
docketed as Civil Case No. Q-01-44038 and
raffled to Branch 78.
On October 3, 2002, 3 the trial court ordered
the partition of the subject property in the
following manner: Perla G. Patricio, 4/6;
Marcelino Marc G. Dario, 1/6; and Marcelino
G. Dario III, 1/6. The trial court also ordered
the sale of the property by public auction
wherein all parties concerned may put up
their bids. In case of failure, the subject
property should be distributed accordingly in
the aforestated manner. 4
Private respondent filed a motion for
reconsideration which was denied by the trial
court on August 11, 2003, 5 hence he
appealed before the Court of Appeals, which
denied the same on October 19, 2005.
However, upon a motion for reconsideration
filed by private respondent on December 9,
2005, the appellate court partially
reconsidered the October 19, 2005 Decision.
In the now assailed Resolution, the Court of
Appeals dismissed the complaint for partition
filed by petitioner and Marcelino Marc for lack
of merit. It held that the family home should
continue despite the death of one or both
spouses as long as there is a minor beneficiary
thereof. The heirs could not partition the
property unless the court found compelling
reasons to rule otherwise. The appellate court
also held that the minor son of private
respondent, who is a grandson of spouses
Marcelino V. Dario and Perla G. Patricio, was
a minor beneficiary of the family home. 6
Hence, the instant petition on the following
issues:
I.
THE HONORABLE COURT OF APPEALS
PATENTLY ERRED IN REVERSING ITS
EARLIER DECISION OF OCTOBER 19, 2005
WHICH AFFIRMED IN TOTO THE DECISION
OF THE TRIAL COURT DATED 03 OCTOBER
2002 GRANTING THE PARTITION AND SALE
BY PUBLIC AUCTION OF THE SUBJECT
PROPERTY. aScIAC
II.
COROLLARILY, THE HONORABLE COURT OF
APPEALS PATENTLY ERRED IN APPLYING
ARTICLE 159 IN RELATION TO ARTICLE 154
OF THE FAMILY CODE ON FAMILY HOME
INSTEAD OF ARTICLE 494 IN RELATION TO
ARTICLES 495 AND 498 OF THE NEW CIVIL
CODE ON CO-OWNERSHIP. 7
The sole issue is whether partition of the
family home is proper where one of the co-
owners refuse to accede to such partition on
the ground that a minor beneficiary still
resides in the said home.
Private respondent claims that the subject
property which is the family home duly
constituted by spouses Marcelino and Perla
Dario cannot be partitioned while a minor
beneficiary is still living therein namely, his
12-year-old son, who is the grandson of the
decedent. He argues that as long as the minor
is living in the family home, the same
continues as such until the beneficiary
becomes of age. Private respondent insists
that even after the expiration of ten years from
the date of death of Marcelino on July 5,
1987, i.e., even after July 1997, the subject
property continues to be considered as the
family home considering that his minor son,
Marcelino Lorenzo R. Dario IV, who is a
beneficiary of the said family home, still
resides in the premises.
On the other hand, petitioner alleges that the
subject property remained as a family home of
the surviving heirs of the late Marcelino V.
Dario only up to July 5, 1997, which was the
10th year from the date of death of the
decedent. Petitioner argues that the brothers
Marcelino Marc and private respondent
Marcelino III were already of age at the time of
the death of their father, 8 hence there is no
more minor beneficiary to speak of. DEcTIS
The family home is a sacred symbol of family
love and is the repository of cherished
memories that last during one's lifetime. 9 It is
the dwelling house where husband and wife,
or by an unmarried head of a family, reside,
including the land on which it is situated. 10
It is constituted jointly by the husband and
the wife or by an unmarried head of a family.
11 The family home is deemed constituted
from the time it is occupied as a family
residence. From the time of its constitution
and so long as any of its beneficiaries actually
resides therein, the family home continues to
be such and is exempt from execution, forced
sale or attachment except as hereinafter
provided and to the extent of the value allowed
by law. 12
The law explicitly provides that occupancy of
the family home either by the owner thereof or
by "any of its beneficiaries" must be actual.
That which is "actual" is something real, or
actually existing, as opposed to something
merely possible, or to something which is
presumptive or constructive. Actual
occupancy, however, need not be by the owner
of the house specifically. Rather, the property
may be occupied by the "beneficiaries"
enumerated in Article 154 of the Family Code,
which may include the in-laws where the
family home is constituted jointly by the
husband and wife. But the law definitely
excludes maids and overseers. They are not
the beneficiaries contemplated by the Code.
13
Article 154 of the Family Code enumerates
who are the beneficiaries of a family home: (1)
The husband and wife, or an unmarried
person who is the head of a family; and (2)
Their parents, ascendants, descendants,
brothers and sisters, whether the relationship
be legitimate or illegitimate, who are living in
the family home and who depend upon the
head of the family for legal support. ADHcTE
To be a beneficiary of the family home, three
requisites must concur: (1) they must be
among the relationships enumerated in Art.
154 of the Family Code; (2) they live in the
family home; and (3) they are dependent for
legal support upon the head of the family.
Moreover, Article 159 of the Family Code
provides that the family home shall continue
despite the death of one or both spouses or of
the unmarried head of the family for a period
of 10 years or for as long as there is a minor
beneficiary, and the heirs cannot partition the
same unless the court finds compelling
reasons therefor. This rule shall apply
regardless of whoever owns the property or
constituted the family home.
Article 159 of the Family Code applies in
situations where death occurs to persons who
constituted the family home. Dr. Arturo M.
Tolentino comments on the effect of death of
one or both spouses or the unmarried head of
a family on the continuing existence of the
family home:
Upon the death of the spouses or the
unmarried family head who constituted the
family home, or of the spouse who consented
to the constitution of his or her separate
property as family home, the property will
remain as family home for ten years or for as
long as there is a minor beneficiary living in it.
If there is no more beneficiary left at the time
of death, we believe the family home will be
dissolved or cease, because there is no more
reason for its existence. If there are
beneficiaries who survive living in the family
home, it will continue for ten years, unless at
the expiration of the ten years, there is still a
minor beneficiary, in which case the family
home continues until that beneficiary
becomes of age.
After these periods lapse, the property may be
partitioned by the heirs. May the heirs who
are beneficiaries of the family home keep it
intact by not partitioning the property after
the period provided by this article? We believe
that although the heirs will continue in
ownership by not partitioning the property, it
will cease to be a family home. 14 (Emphasis
supplied) cACTaI
Prof. Ernesto L. Pineda further explains the
import of Art. 159 in this manner:
The family home shall continue to exist
despite the death of one or both spouses or of
the unmarried head of the family. Thereafter,
the length of its continued existence is
dependent upon whether there is still a minor-
beneficiary residing therein. For as long as
there is one beneficiary even if the head of the
family or both spouses are already dead, the
family home will continue to exist (Arts. 153,
159). If there is no minor-beneficiary, it will
subsist until 10 years and within this period,
the heirs cannot partition the same except
when there are compelling reasons which will
justify the partition. This rule applies
regardless of whoever owns the property or
who constituted the family home. 15
(Emphasis supplied)
The rule in Article 159 of the Family Code may
thus be expressed in this wise: If there are
beneficiaries who survive and are living in the
family home, it will continue for 10 years,
unless at the expiration of 10 years, there is
still a minor beneficiary, in which case the
family home continues until that beneficiary
becomes of age.
It may be deduced from the view of Dr.
Tolentino that as a general rule, the family
home may be preserved for a minimum of 10
years following the death of the spouses or the
unmarried family head who constituted the
family home, or of the spouse who consented
to the constitution of his or her separate
property as family home. After 10 years and a
minor beneficiary still lives therein, the family
home shall be preserved only until that minor
beneficiary reaches the age of majority. The
intention of the law is to safeguard and
protect the interests of the minor beneficiary
until he reaches legal age and would now be
capable of supporting himself. However, three
requisites must concur before a minor
beneficiary is entitled to the benefits of Art.
159: (1) the relationship enumerated in Art.
154 of the Family Code; (2) they live in the
family home, and (3) they are dependent for
legal support upon the head of the family.
CIcTAE
Thus, the issue for resolution now is whether
Marcelino Lorenzo R. Dario IV, the minor son
of private respondent, can be considered as a
beneficiary under Article 154 of the Family
Code.
As to the first requisite, the beneficiaries of the
family home are: (1) The husband and wife, or
an unmarried person who is the head of a
family; and (2) Their parents, ascendants,
descendants, brothers and sisters, whether
the relationship be legitimate or illegitimate.
The term "descendants" contemplates all
descendants of the person or persons who
constituted the family home without
distinction; hence, it must necessarily include
the grandchildren and great grandchildren of
the spouses who constitute a family home. Ubi
lex non distinguit nec nos distinguire
debemos. Where the law does not distinguish,
we should not distinguish. Thus, private
respondent's minor son, who is also the
grandchild of deceased Marcelino V. Dario
satisfies the first requisite.
As to the second requisite, minor beneficiaries
must be actually living in the family home to
avail of the benefits derived from Art. 159.
Marcelino Lorenzo R. Dario IV, also known as
Ino, the son of private respondent and
grandson of the decedent Marcelino V. Dario,
has been living in the family home since 1994,
or within 10 years from the death of the
decedent, hence, he satisfies the second
requisite.
However, as to the third requisite, Marcelino
Lorenzo R. Dario IV cannot demand support
from his paternal grandmother if he has
parents who are capable of supporting him.
The liability for legal support falls primarily on
Marcelino Lorenzo R. Dario IV's parents,
especially his father, herein private
respondent who is the head of his immediate
family. The law first imposes the obligation of
legal support upon the shoulders of the
parents, especially the father, and only in
their default is the obligation imposed on the
grandparents. ASTIED
Marcelino Lorenzo R. Dario IV is dependent on
legal support not from his grandmother, but
from his father. Thus, despite residing in the
family home and his being a descendant of
Marcelino V. Dario, Marcelino Lorenzo R.
Dario IV cannot be considered as beneficiary
contemplated under Article 154 because he
did not fulfill the third requisite of being
dependent on his grandmother for legal
support. It is his father whom he is dependent
on legal support, and who must now establish
his own family home separate and distinct
from that of his parents, being of legal age.
Legal support, also known as family support,
is that which is provided by law, comprising
everything indispensable for sustenance,
dwelling, clothing, medical attendance,
education and transportation, in keeping with
the financial capacity of the family. 16 Legal
support has the following characteristics: (1) It
is personal, based on family ties which bind
the obligor and the obligee; (2) It is
intransmissible; (3) It cannot be renounced;
(4) It cannot be compromised; (5) It is free
from attachment or execution; (6) It is
reciprocal; (7) It is variable in amount. 17
Professor Pineda is of the view that
grandchildren cannot demand support directly
from their grandparents if they have parents
(ascendants of nearest degree) who are
capable of supporting them. This is so
because we have to follow the order of support
under Art. 199. 18 We agree with this view.
The reasons behind Art. 199 as explained by
Pineda and Tolentino: the closer the
relationship of the relatives, the stronger the
tie that binds them. Thus, the obligation to
support under Art. 199 which outlines the
order of liability for support is imposed first
upon the shoulders of the closer relatives and
only in their default is the obligation moved to
the next nearer relatives and so on. EHTIDA
There is no showing that private respondent is
without means to support his son; neither is
there any evidence to prove that petitioner, as
the paternal grandmother, was willing to
voluntarily provide for her grandson's legal
support. On the contrary, herein petitioner
filed for the partition of the property which
shows an intention to dissolve the family
home, since there is no more reason for its
existence after the 10-year period ended in
1997.
With this finding, there is no legal impediment
to partition the subject property.
The law does not encourage co-ownerships
among individuals as oftentimes it results in
inequitable situations such as in the instant
case. Co-owners should be afforded every
available opportunity to divide their co-owned
property to prevent these situations from
arising.
As we ruled in Santos v. Santos, 19 no co-
owner ought to be compelled to stay in a co-
ownership indefinitely, and may insist on
partition on the common property at any time.
An action to demand partition is
imprescriptible or cannot be barred by laches.
Each co-owner may demand at any time the
partition of the common property. 20
Since the parties were unable to agree on a
partition, the court a quo should have ordered
a partition by commissioners pursuant to
Section 3, Rule 69 of the Rules of Court. Not
more than three competent and disinterested
persons should be appointed as
commissioners to make the partition,
commanding them to set off to the plaintiff
and to each party in interest such part and
proportion of the property as the court shall
direct. aScITE
When it is made to appear to the
commissioners that the real estate, or a
portion thereof, cannot be divided without
great prejudice to the interest of the parties,
the court may order it assigned to one of the
parties willing to take the same, provided he
pays to the other parties such sum or sums of
money as the commissioners deem equitable,
unless one of the parties interested ask that
the property be sold instead of being so
assigned, in which case the court shall order
the commissioners to sell the real estate at
public sale, and the commissioners shall sell
the same accordingly. 21
The partition of the subject property should be
made in accordance with the rule embodied in
Art. 996 of the Civil Code. 22 Under the law of
intestate succession, if the widow and
legitimate children survive, the widow has the
same share as that of each of the children.
However, since only one-half of the conjugal
property which is owned by the decedent is to
be allocated to the legal and compulsory heirs
(the other half to be given exclusively to the
surviving spouse as her conjugal share of the
property), the widow will have the same share
as each of her two surviving children. Hence,
the respective shares of the subject property,
based on the law on intestate succession are:
(1) Perla Generosa Dario, 4/6; (2) Marcelino
Marc G. Dario II, 1/6 and (3) Marcelino G.
Dario III, 1/6.
In Vda. de Daffon v. Court of Appeals, 23 we
held that an action for partition is at once an
action for declaration of co-ownership and for
segregation and conveyance of a determinate
portion of the properties involved. If the court
after trial should find the existence of co-
ownership among the parties, the court may
and should order the partition of the
properties in the same action. 24
WHEREFORE, the petition is GRANTED. The
Resolution of the Court of Appeals in CA-G.R.
CV No. 80680 dated December 9, 2005, is
REVERSED and SET ASIDE. The case is
REMANDED to the Regional Trial Court of
Quezon City, Branch 78, who is directed to
conduct a PARTITION BY COMMISSIONERS
and effect the actual physical partition of the
subject property, as well as the improvements
that lie therein, in the following manner: Perla
G. Dario, 4/6; Marcelino Marc G. Dario, 1/6
and Marcelino G. Dario III, 1/6. The trial court
is DIRECTED to appoint not more than three
(3) competent and disinterested persons, who
should determine the technical metes and
bounds of the property and the proper share
appertaining to each heir, including the
improvements, in accordance with Rule 69 of
the Rules of Court. When it is made to the
commissioners that the real estate, or a
portion thereof, cannot be divided without
great prejudice to the interest of the parties,
the court a quo may order it assigned to one of
the parties willing to take the same, provided
he pays to the other parties such sum or
sums of money as the commissioners deem
equitable, unless one of the parties interested
ask that the property be sold instead of being
so assigned, in which case the court shall
order the commissioners to sell the real estate
at public sale, and the commissioners shall
sell the same accordingly, and thereafter
distribute the proceeds of the sale
appertaining to the just share of each heir. No
pronouncement as to costs. SDHETI
SO ORDERED.
Panganiban, C.J., Austria-Martinez, Callejo,
Sr. and Chico-Nazario, JJ., concur.
THIRD DIVISION
[G.R. No. 177703. January 28, 2008.]
VILMA G. ARRIOLA and ANTHONY RONALD
G. ARRIOLA, petitioners, vs. JOHN NABOR
C. ARRIOLA, respondent.
DECISION
AUSTRIA-MARTINEZ, J p:
Before this Court is a Petition for Review on
Certiorari under Rule 45 of the Rules of Court,
assailing the November 30, 2006 Decision 1
and April 30, 2007 Resolution 2 of the Court
of Appeals in CA-G.R. SP No. 93570.
The relevant facts are culled from the records.
AHECcT
John Nabor C. Arriola (respondent) filed
Special Civil Action No. 03-0010 with the
Regional Trial Court, Branch 254, Las Pias
City (RTC) against Vilma G. Arriola and
Anthony Ronald G. Arriola (petitioners) for
judicial partition of the properties of decedent
Fidel Arriola (the decedent Fidel). Respondent
is the son of decedent Fidel with his first wife
Victoria C. Calabia, while petitioner Anthony
is the son of decedent Fidel with his second
wife, petitioner Vilma.
On February 16, 2004, the RTC rendered a
Decision, the dispositive portion of which
reads:
WHEREFORE, premises considered, judgment
is hereby rendered:
1. Ordering the partition of the parcel of
land covered by Transfer Certificate of Title
No. 383714 (84191) left by the decedent Fidel
S. Arriola by and among his heirs John Nabor
C. Arriola, Vilma G. Arriola and Anthony
Ronald G. Arriola in equal shares of one-third
(1/3) each without prejudice to the rights of
creditors or mortgagees thereon, if any;
2. Attorney's fees in the amount of TEN
THOUSAND (P10,000.00) PESOS is hereby
awarded to be reimbursed by the defendants
to the plaintiff;
3. Costs against the defendants.
SO ORDERED. 3
The decision became final on March 15, 2004.
4 aDIHCT
As the parties failed to agree on how to
partition among them the land covered by TCT
No. 383714 (subject land), respondent sought
its sale through public auction, and
petitioners acceded to it. 5 Accordingly, the
RTC ordered the public auction of the subject
land. 6 The public auction sale was scheduled
on May 31, 2003 but it had to be reset when
petitioners refused to include in the auction
the house (subject house) standing on the
subject land. 7 This prompted respondent to
file with the RTC an Urgent Manifestation and
Motion for Contempt of Court, 8 praying that
petitioners be declared in contempt.
The RTC denied the motion in an Order 9
dated August 30, 2005, for the reason that
petitioners were justified in refusing to have
the subject house included in the auction,
thus:
The defendants [petitioners] are correct in
holding that the house or improvement
erected on the property should not be
included in the auction sale.
A cursory reading of the aforementioned
Decision and of the evidence adduced during
the ex-parte hearing clearly show that nothing
was mentioned about the house existing on
the land subject matter of the case. In fact,
even plaintiff's [respondent's] initiatory
Complaint likewise did not mention anything
about the house. Undoubtedly therefore, the
Court did not include the house in its
adjudication of the subject land because it
was plaintiff himself who failed to allege the
same. It is a well-settled rule that the court
can not give a relief to that which is not
alleged and prayed for in the complaint.
To hold, as plaintiff argued, that the house is
considered accessory to the land on which it is
built is in effect to add to plaintiff's [a] right
which has never been considered or passed
upon during the trial on the merits. HScCEa
In the absence of any other declaration,
obvious or otherwise, only the land should be
partitioned in accordance to [sic] the
aforementioned Decision as the house can not
be said to have been necessarily adjudicated
therein. Thus, plaintiff can not be declared as
a co-owner of the same house without
evidence thereof and due hearing thereon.
The Decision of the Court having attained its
finality, as correctly pointed out, judgment
must stand even at the risk that it might be
erroneous.
WHEREFORE, the Urgent Manifestation and
Motion for Contempt of Court filed by plaintiff
is hereby DENIED for lack of merit.
SO ORDERED. 10
The RTC, in its Order dated January 3, 2006,
denied respondent's Motion for
Reconsideration. 11
Respondent filed with the CA a Petition for
Certiorari 12 where he sought to have the RTC
Orders set aside, and prayed that he be
allowed to proceed with the auction of the
subject land including the subject house.
In its November 30, 2006 Decision, the CA
granted the Petition for Certiorari, to wit:
WHEREFORE, the petition is GRANTED. The
assailed orders dated August 30, 2005 and
January 3, 2006 issued by the RTC, in Civil
Case No. SCA 03-0010, are REVERSED and
SET ASIDE, and the sheriff is ordered to
proceed with the public auction sale of the
subject lot covered by TCT No. 383714,
including the house constructed thereon.
STECAc
SO ORDERED. 13 (Emphasis supplied.)
Petitioners filed a motion for reconsideration
but the CA denied the same in its Resolution
14 of April 30, 2007.
Hence, the present petition on the sole ground
that the CA erred in holding that the RTC
committed grave abuse of discretion in
denying the motion for contempt of court.
The assailed CA Decision and Resolution must
be modified for reasons other than those
advanced by petitioners.
The contempt proceeding initiated by
respondent was one for indirect contempt.
Section 4, Rule 71 of the Rules of Court
prescribes the procedure for the institution of
proceedings for indirect contempt, viz.:
Sec. 4. How proceedings commenced.
Proceedings for indirect contempt may be
initiated motu proprio by the court against
which the contempt was committed by an
order or any other formal charge requiring the
respondent to show cause why he should not
be punished for contempt.
In all other cases, charges for indirect
contempt shall be commenced by a verified
petition with supporting particulars and
certified true copies of documents or papers
involved therein, and upon full compliance
with the requirements for filing initiatory
pleadings for civil actions in the court
concerned. If the contempt charges arose out
of or are related to a principal action pending
in the court, the petition for contempt shall
allege that fact but said petition shall be
docketed, heard and decided separately,
unless the court in its discretion orders the
consolidation of the contempt charge and the
principal action for joint hearing and decision.
(Emphases supplied.) CaTcSA
Under the aforecited second paragraph of the
Rules, the requirements for initiating an
indirect contempt proceeding are a) that it be
initiated by way of a verified petition and b)
that it should fully comply with the
requirements for filing initiatory pleadings for
civil actions. In Regalado v. Go, 15 we held:
As explained by Justice Florenz Regalado, the
filing of a verified petition that has complied
with the requirements for the filing of
initiatory pleading, is mandatory . . .:
This new provision clarifies with a regularity
norm the proper procedure for commencing
contempt proceedings. While such proceeding
has been classified as special civil action
under the former Rules, the heterogenous
practice tolerated by the courts, has been for
any party to file a motion without paying any
docket or lawful fees therefore and without
complying with the requirements for initiatory
pleadings, which is now required in the
second paragraph of this amended section.
xxx xxx xxx
Henceforth, except for indirect contempt
proceedings initiated motu proprio by order of
or a formal charge by the offended court, all
charges shall be commenced by a verified
petition with full compliance with the
requirements therefore and shall be disposed
in accordance with the second paragraph of
this section. IEAHca
xxx xxx xxx
Even if the contempt proceedings stemmed
from the main case over which the court
already acquired jurisdiction, the rules direct
that the petition for contempt be treated
independently of the principal action.
Consequently, the necessary prerequisites for
the filing of initiatory pleadings, such as the
filing of a verified petition, attachment of a
certification on non-forum shopping, and the
payment of the necessary docket fees, must be
faithfully observed.
xxx xxx xxx
The provisions of the Rules are worded in very
clear and categorical language. In case where
the indirect contempt charge is not initiated
by the courts, the filing of a verified petition
which fulfills the requirements on initiatory
pleadings is a prerequisite. Beyond question
now is the mandatory requirement of a verified
petition in initiating an indirect contempt
proceeding. Truly, prior to the amendment of
the 1997 Rules of Civil Procedure, mere
motion without complying with the
requirements for initiatory pleadings was
tolerated by the courts. At the onset of the
1997 Revised Rules of Civil Procedure,
however, such practice can no longer be
countenanced. 16 (Emphasis ours.)
The RTC erred in taking jurisdiction over the
indirect contempt proceeding initiated by
respondent. The latter did not comply with
any of the mandatory requirements of Section
4, Rule 71. He filed a mere Urgent
Manifestation and Motion for Contempt of
Court, and not a verified petition. He likewise
did not conform with the requirements for the
filing of initiatory pleadings such as the
submission of a certification against forum
shopping and the payment of docket fees.
Thus, his unverified motion should have been
dismissed outright by the RTC. TADaES
It is noted though that, while at first the RTC
overlooked the infirmities in respondent's
unverified motion for contempt, in the end, it
dismissed the motion, albeit on substantive
grounds. The trouble is that, in the CA
decision assailed herein, the appellate court
committed the same oversight by delving into
the merits of respondent's unverified motion
and granting the relief sought therein. Thus,
strictly speaking, the proper disposition of the
present petition ought to be the reversal of the
CA decision and the dismissal of respondent's
unverified motion for contempt filed in the
RTC for being in contravention of Section 4,
Rule 71.
However, such simplistic disposition will not
put an end to the dispute between the parties.
A seed of litigation has already been sown that
will likely sprout into another case between
them at a later time. We refer to the question
of whether the subject house should be
included in the public auction of the subject
land. Until this question is finally resolved,
there will be no end to litigation between the
parties. We must therefore deal with it
squarely, here and now.
The RTC and the CA differed in their views on
whether the public auction should include the
subject house. The RTC excluded the subject
house because respondent never alleged its
existence in his complaint for partition or
established his co-ownership thereof. 17 On
the other hand, citing Articles 440, 18 445 19
and 446 20 of the Civil Code, the CA held that
as the deceased owned the subject land, he
also owned the subject house which is a mere
accessory to the land. Both properties form
part of the estate of the deceased and are held
in co-ownership by his heirs, the parties
herein. Hence, the CA concludes that any
decision in the action for partition of said
estate should cover not just the subject land
but also the subject house. 21 The CA further
pointed out that petitioners themselves
implicitly recognized the inclusion of the
subject house in the partition of the subject
land when they proposed in their letter of
August 5, 2004, the following swapping-
arrangement: AcSEHT
Sir:
Thank you very much for accommodating us
even if we are only poor and simple people. We
are very much pleased with the decision of
Presiding Judge Manuel B. Fernandez, Jr.,
RTC Br. 254, Las Pias, on the sharing of one-
third (1/3) each of a land covered by Transfer
Certificate of Title No. 383714 (84191) in Las
Pias City.
However, to preserve the sanctity of our house
which is our residence for more than twenty
(20) years, we wish to request that the 1/3
share of John Nabor C. Arriola be paid by the
defendants depending on the choice of the
plaintiff between item (1) or item (2), detailed
as follows:
(1) Swap with a 500-square meters [sic] lot
located at Baras Rizal . . . .
(2) Cash of P205,700.00 . . . .
xxx xxx xxx 22
We agree that the subject house is covered by
the judgment of partition for reasons
postulated by the CA. We qualify, however,
that this ruling does not necessarily
countenance the immediate and actual
partition of the subject house by way of public
auction in view of the suspensive proscription
imposed under Article 159 of The Family Code
which will be discussed forthwith.
It is true that the existence of the subject
house was not specifically alleged in the
complaint for partition. Such omission
notwithstanding, the subject house is deemed
part of the judgment of partition for two
compelling reasons. CHATcE
First, as correctly held by the CA, under the
provisions of the Civil Code, the subject house
is deemed part of the subject land. The Court
quotes with approval the ruling of the CA, to
wit:
The RTC, in the assailed Order dated August
30, 2005 ratiocinated that since the house
constructed on the subject lot was not alleged
in the complaint and its ownership was not
passed upon during the trial on the merits,
the court cannot include the house in its
adjudication of the subject lot. The court
further stated that it cannot give a relief to
[sic] which is not alleged and prayed for in the
complaint.
We are not persuaded.
To follow the foregoing reasoning of the RTC
will in effect render meaningless the pertinent
rule on accession. In general, the right to
accession is automatic (ipso jure), requiring no
prior act on the part of the owner or the
principal. So that even if the improvements
including the house were not alleged in the
complaint for partition, they are deemed
included in the lot on which they stand,
following the principle of accession.
Consequently, the lot subject of judicial
partition in this case includes the house
which is permanently attached thereto,
otherwise, it would be absurd to divide the
principal, i.e., the lot, without dividing the
house which is permanently attached thereto.
23 (Emphasis supplied)
Second, respondent has repeatedly claimed
that the subject house was built by the
deceased. 24 Petitioners never controverted
such claim. There is then no dispute that the
subject house is part of the estate of the
deceased; as such, it is owned in common by
the latter's heirs, the parties herein, 25 any
one of whom, under Article 494 26 of the Civil
Code, may, at any time, demand the partition
of the subject house. 27 Therefore,
respondent's recourse to the partition of the
subject house cannot be hindered, least of all
by the mere technical omission of said
common property from the complaint for
partition. CaTcSA
That said notwithstanding, we must
emphasize that, while we treat the subject
house as part of the co-ownership of the
parties, we stop short of authorizing its actual
partition by public auction at this time. It
bears emphasis that an action for partition
involves two phases: first, the declaration of
the existence of a state of co-ownership; and
second, the actual termination of that state of
co-ownership through the segregation of the
common property. 28 What is settled thus far
is only the fact that the subject house is under
the co-ownership of the parties, and therefore
susceptible of partition among them.
Whether the subject house should be sold at
public auction as ordered by the RTC is an
entirely different matter, depending on the
exact nature of the subject house.
Respondent claims that the subject house was
built by decedent Fidel on his exclusive
property. 29 Petitioners add that said house
has been their residence for 20 years. 30
Taken together, these averments on record
establish that the subject house is a family
home within the contemplation of the
provisions of The Family Code, particularly:
Article 152. The family home, constituted
jointly by the husband and the wife or by an
unmarried head of a family, is the dwelling
house where they and their family reside, and
the land on which it is situated.
Article 153. The family home is deemed
constituted on a house and lot from the time it
is occupied as a family residence. From the
time of its constitution and so long as any of
its beneficiaries actually resides therein, the
family home continues to be such and is
exempt from execution, forced sale or
attachment except as hereinafter provided and
to the extent of the value allowed by law.
(Emphasis supplied.) CaAIES
One significant innovation introduced by The
Family Code is the automatic constitution of
the family home from the time of its
occupation as a family residence, without
need anymore for the judicial or extrajudicial
processes provided under the defunct Articles
224 to 251 of the Civil Code and Rule 106 of
the Rules of Court. Furthermore, Articles 152
and 153 specifically extend the scope of the
family home not just to the dwelling structure
in which the family resides but also to the lot
on which it stands. Thus, applying these
concepts, the subject house as well as the
specific portion of the subject land on which it
stands are deemed constituted as a family
home by the deceased and petitioner Vilma
from the moment they began occupying the
same as a family residence 20 years back. 31
It being settled that the subject house (and
the subject lot on which it stands) is the
family home of the deceased and his heirs, the
same is shielded from immediate partition
under Article 159 of The Family Code, viz.:
Article 159. The family home shall continue
despite the death of one or both spouses or of
the unmarried head of the family for a period
of ten years or for as long as there is a minor
beneficiary, and the heirs cannot partition the
same unless the court finds compelling
reasons therefor. This rule shall apply
regardless of whoever owns the property or
constituted the family home. (Emphasis
supplied.)
The purpose of Article 159 is to avert the
disintegration of the family unit following the
death of its head. To this end, it preserves the
family home as the physical symbol of family
love, security and unity by imposing the
following restrictions on its partition: first,
that the heirs cannot extra-judicially partition
it for a period of 10 years from the death of
one or both spouses or of the unmarried head
of the family, or for a longer period, if there is
still a minor beneficiary residing therein; and
second, that the heirs cannot judicially
partition it during the aforesaid periods unless
the court finds compelling reasons therefor.
No compelling reason has been alleged by the
parties; nor has the RTC found any compelling
reason to order the partition of the family
home, either by physical segregation or
assignment to any of the heirs or through
auction sale as suggested by the parties.
ASEcHI
More importantly, Article 159 imposes the
proscription against the immediate partition of
the family home regardless of its ownership.
This signifies that even if the family home has
passed by succession to the co-ownership of
the heirs, or has been willed to any one of
them, this fact alone cannot transform the
family home into an ordinary property, much
less dispel the protection cast upon it by the
law. The rights of the individual co-owner or
owner of the family home cannot subjugate within the period provided for in Article 159 of
the rights granted under Article 159 to the the Family Code. SCDaET
beneficiaries of the family home.
No costs.
Set against the foregoing rules, the family
home consisting of the subject house and SO ORDERED.
lot on which it stands cannot be partitioned Ynares-Santiago, Corona, * Nachura and
at this time, even if it has passed to the co- Reyes, JJ., concur.
ownership of his heirs, the parties herein.
Decedent Fidel died on March 10, 2003. 32
Thus, for 10 years from said date or until
March 10, 2013, or for a longer period, if there
is still a minor beneficiary residing therein,
the family home he constituted cannot be
partitioned, much less when no compelling
reason exists for the court to otherwise set
aside the restriction and order the partition of
the property.

The Court ruled in Honrado v. Court of

Appeals 33 that a claim for exception from
execution or forced sale under Article 153
should be set up and proved to the Sheriff
before the sale of the property at public
auction. Herein petitioners timely objected to
the inclusion of the subject house although for
a different reason. HEcSDa

To recapitulate, the evidence of record sustain

the CA ruling that the subject house is part of
the judgment of co-ownership and partition.
The same evidence also establishes that the
subject house and the portion of the subject
land on which it is standing have been
constituted as the family home of decedent
Fidel and his heirs. Consequently, its actual
and immediate partition cannot be sanctioned
until the lapse of a period of 10 years from the
death of Fidel Arriola, or until March 10,
2013.

It bears emphasis, however, that in the

meantime, there is no obstacle to the
immediate public auction of the portion of the
subject land covered by TCT No. 383714,
which falls outside the specific area of the
family home.

WHEREFORE, the petition is PARTLY

GRANTED and the November 30, 2006
Decision and April 30, 2007 Resolution of the
Court of Appeals are MODIFIED in that the
house standing on the land covered by
Transfer Certificate of Title No. 383714 is
DECLARED part of the co-ownership of the
parties John Nabor C. Arriola, Vilma G.
Arriola and Anthony Ronald G. Arriola but
EXEMPTED from partition by public auction
SECOND DIVISION
[G.R. No. 185064. January 16, 2012.]
SPOUSES ARACELI OLIVA-DE MESA and
ERNESTO S. DE MESA, petitioner, vs.
SPOUSES CLAUDIO D. ACERO, JR. and MA.
RUFINA D. ACERO, SHERIFF FELIXBERTO
L. SAMONTE and REGISTRAR ALFREDO
SANTOS, respondents.
DECISION
REYES, J p:
Nature of the Petition
This is a petition for review on certiorari under
Rule 45 of the Rules of Court filed by the
Spouses Araceli Oliva-De Mesa (Araceli) and
Ernesto S. De Mesa (Ernesto), assailing the
Court of Appeals' (CA) Decision 1 dated June
6, 2008 and Resolution 2 dated October 23,
2008 in CA-G.R. CV No. 79391 entitled
"Spouses Araceli Oliva-De Mesa and Ernesto
De Mesa v. Spouses Claudio Acero, Jr., et al."
cEITCA
The Antecedent Facts
This involves a parcel of land situated at No. 3
Forbes Street, Mount Carmel Homes
Subdivision, Iba, Meycauayan, Bulacan,
which was formerly covered by Transfer
Certificate of Title (TCT) No. T-76.725 (M)
issued by the Register of Deeds of
Meycauayan, Bulacan and registered under
Araceli's name. The petitioners jointly
purchased the subject property on April 17,
1984 while they were still merely cohabiting
before their marriage. A house was later
constructed on the subject property, which
the petitioners thereafter occupied as their
family home after they got married sometime
in January 1987.
Sometime in September 1988, Araceli
obtained a loan from Claudio D. Acero, Jr.
(Claudio) in the amount of P100,000.00,
which was secured by a mortgage over the
subject property. As payment, Araceli issued a
check drawn against China Banking
Corporation payable to Claudio.
When the check was presented for payment, it
was dishonored as the account from which it
was drawn had already been closed. The
petitioners failed to heed Claudio's subsequent
demand for payment. SICaDA
Thus, on April 26, 1990, Claudio filed with the
Prosecutor's Office of Malolos, Bulacan a
complaint for violation of Batas Pambansa
Blg. 22 (B.P. 22) against the petitioners. After
preliminary investigation, an information for
violation of B.P. 22 was filed against the
petitioners with the Regional Trial Court (RTC)
of Malolos, Bulacan.
On October 21, 1992, the RTC rendered a
Decision 3 acquitting the petitioners but
ordering them to pay Claudio the amount of
P100,000.00 with legal interest from date of
demand until fully paid.
On March 15, 1993, a writ of execution was
issued and Sheriff Felixberto L. Samonte
(Sheriff Samonte) levied upon the subject
property. On March 9, 1994, the subject
property was sold on public auction; Claudio
was the highest bidder and the corresponding
certificate of sale was issued to him.
Sometime in February 1995, Claudio leased
the subject property to the petitioners and a
certain Juanito Oliva (Juanito) for a monthly
rent of P5,500.00. However, the petitioners
and Juanito defaulted in the payment of the
rent and as of October 3, 1998, their total
accountabilities to Claudio amounted to
P170,500.00. DaScCH
Meanwhile, on March 24, 1995, a Final Deed
of Sale 4 over the subject property was issued
to Claudio and on April 4, 1995, the Register
of Deeds of Meycauayan, Bulacan cancelled
TCT No. T-76.725 (M) and issued TCT No. T-
221755 (M) 5 in his favor.
Unable to collect the aforementioned rentals
due, Claudio and his wife Ma. Rufina Acero
(Rufina) (collectively referred to as Spouses
Acero) filed a complaint for ejectment with the
Municipal Trial Court (MTC) of Meycauayan,
Bulacan against the petitioners and Juanito.
In their defense, the petitioners claimed that
Spouses Acero have no right over the subject
property. The petitioners deny that they are
mere lessors; on the contrary, they are the
lawful owners of the subject property and,
thus cannot be evicted therefrom.
On July 22, 1999, the MTC rendered a
Decision, 6 giving due course to Spouses
Acero's complaint and ordering the petitioners
and Juanito to vacate the subject property.
Finding merit in Spouses Acero's claims, the
MTC dismissed the petitioners' claim of
ownership over the subject property.
According to the MTC, title to the subject
property belongs to Claudio as shown by TCT
No. T-221755 (M). AcaEDC
The MTC also stated that from the time a
Torrens title over the subject property was
issued in Claudio's name up to the time the
complaint for ejectment was filed, the
petitioners never assailed the validity of the
levy made by Sheriff Samonte, the regularity
of the public sale that was conducted
thereafter and the legitimacy of Claudio's
Torrens title that was resultantly issued.
The petitioners appealed the MTC's July 22,
1999 Decision to the RTC. This appeal was,
however, dismissed in a Decision dated
November 22, 1999 due to the petitioners'
failure to submit their Memorandum. The
petitioners sought reconsideration of the said
decision but the same was denied in an Order
dated January 31, 2000.
Consequently, the petitioners filed a petition
for review 7 with the CA assailing the RTC's
November 22, 1999 Decision and January 31,
2000 Order. In a December 21, 2006 Decision,
8 the CA denied the petitioner's petition for
review. This became final on July 25, 2007. 9
In the interregnum, on October 29, 1999, the
petitioners filed against the respondents a
complaint 10 to nullify TCT No. T-221755 (M)
and other documents with damages with the
RTC of Malolos, Bulacan. Therein, the
petitioners asserted that the subject property
is a family home, which is exempt from
execution under the Family Code and, thus,
could not have been validly levied upon for
purposes of satisfying the March 15, 1993 writ
of execution. EaICAD
On September 3, 2002, the RTC rendered a
Decision, 11 which dismissed the petitioners'
complaint. Citing Article 155 (3) of the Family
Code, the RTC ruled that even assuming that
the subject property is a family home, the
exemption from execution does not apply. A
mortgage was constituted over the subject
property to secure the loan Araceli obtained
from Claudio and it was levied upon as
payment therefor.
The petitioners sought reconsideration of the
RTC's September 3, 2002 Decision but this
was denied in a Resolution 12 dated January
14, 2003.
On appeal, the CA affirmed the RTC's
disposition in its Decision 13 dated June 6,
2008. The CA ratiocinated that the exemption
of a family home from execution, attachment
or forced sale under Article 153 of the Family
Code is not automatic and should accordingly
be raised and proved to the Sheriff prior to the
execution, forced sale or attachment. The
appellate court noted that at no time did the
petitioners raise the supposed exemption of
the subject property from execution on
account of the same being a family home.
The petitioners then sought reconsideration of
the said June 6, 2008 Decision but the same
was denied by the CA in its Resolution 14
dated October 23, 2008. aHSAIT
Aggrieved, the petitioners filed the instant
petition for review, praying for the cancellation
of TCT No. T-221755 (M). They insist that the
execution sale that was conducted is a nullity
considering that the subject property is a
family home. The petitioners assert that,
contrary to the disposition of the CA, a prior
demonstration that the subject property is a
family home is not required before it can be
exempted from execution.
In their Comment, 15 Spouses Acero claimed
that this petition ought to be denied on the
ground of forum-shopping as the issues raised
had already been determined by the MTC in
its July 22, 1999 Decision on the complaint
for ejectment filed by them, which had already
become final and executory following the
petitioner's failure to appeal the CA's
December 21, 2006 Decision affirming it.
Issues
The threshold issues for resolution are the
following: (a) whether the petitioners are guilty
of forum-shopping; and (b) whether the lower
courts erred in refusing to cancel Claudio's
Torrens title TCT No. T-221755 (M) over the
subject property. CTIDcA
The Court's Ruling
First Issue: Forum-Shopping
On the first issue, we find that the petitioners
are not guilty of forum-shopping.
There is forum-shopping when as a result of
an adverse decision in one forum, or in
anticipation thereof, a party seeks a favorable
opinion in another forum through means
other than an appeal or certiorari. Forum-
shopping exists when two or more actions
involve the same transactions, essential facts,
and circumstances; and raise identical causes
of action, subject matter, and issues. 16
Forum-shopping exists where the elements of
litis pendentia are present, and where a final
judgment in one case will amount to res
judicata in the other. The elements of forum-
shopping are: (a) identity of parties, or at least
such parties as would represent the same
interest in both actions; (b) identity of rights
asserted and relief prayed for, the relief being
founded on the same facts; and (c) identity of
the two preceding particulars such that any
judgment rendered in the other action will,
regardless of which party is successful,
amount to res judicata in the action under
consideration. 17
There is no identity of issues and reliefs
prayed for in the ejectment case and in the
action to cancel TCT No. T-221755 (M). Verily,
the primordial issue in the ejectment case is
who among the contending parties has a
better right of possession over the subject
property while ownership is the core issue in
an action to cancel a Torrens title. cCAIES
It is true that the petitioners raised the issue
of ownership over the subject property in the
ejectment case. However, the resolution
thereof is only provisional as the same is
solely for the purpose of determining who
among the parties therein has a better right of
possession over the subject property.
Accordingly, a judgment rendered in an
ejectment case is not a bar to action between
the same parties respecting title to the land or
building. Neither shall it be conclusive as to
the facts therein. This issue is far from being
novel and there is no reason to depart from
this Court's previous pronouncements. In
Malabanan v. Rural Bank of Cabuyao, Inc., 18
this Court had previously clarified that a
decision in an ejectment case is not res
judicata in an annulment of title case and
vice-versa given the provisional and
inconclusive nature of the determination of
the issue of ownership in the former.
Forum-shopping exists where the elements of
litis pendentia are present, namely: (a) identity
of parties or at least such as representing the
same interests in both actions; (b) identity of
rights asserted and reliefs prayed for, the relief
being founded on the same facts; and (c) the
identity in the two cases should be such that
the judgment that may be rendered in one
would, regardless of which party is successful,
amounts to res judicata in the other.
EHaCTA
Petitioner and respondent are the same
parties in the annulment and ejectment cases.
The issue of ownership was likewise being
contended, with same set of evidence being
presented in both cases. However, it cannot be
inferred that a judgment in the ejectment case
would amount to res judicata in the
annulment case, and vice-versa.
This issue is hardly a novel one. It has been
laid to rest by heaps of cases iterating the
principle that a judgment rendered in an
ejectment case shall not bar an action
between the same parties respecting title to
the land or building nor shall it be conclusive
as to the facts therein found in a case between
the same parties upon a different cause of
action involving possession.
It bears emphasizing that in ejectment suits,
the only issue for resolution is the physical or
material possession of the property involved,
independent of any claim of ownership by any
of the party litigants. However, the issue of
ownership may be provisionally ruled upon for
the sole purpose of determining who is
entitled to possession de facto. Therefore, the
provisional determination of ownership in the
ejectment case cannot be clothed with finality.
Corollarily, the incidental issue of whether a
pending action for annulment would abate an
ejectment suit must be resolved in the
negative. DHcESI
A pending action involving ownership of the
same property does not bar the filing or
consideration of an ejectment suit, nor
suspend the proceedings. This is so because
an ejectment case is simply designed to
summarily restore physical possession of a
piece of land or building to one who has been
illegally or forcibly deprived thereof, without
prejudice to the settlement of the parties'
opposing claims of juridical possession in
appropriate proceedings. 19 (citations omitted)
Second Issue: Nullification of TCT No. T-
221755 (M)
Anent the second issue, this Court finds that
the CA did not err in dismissing the
petitioners' complaint for nullification of TCT
No. T-221755 (M).
The subject property is a family
home.
The petitioners maintain that the subject
property is a family home and, accordingly,
the sale thereof on execution was a nullity. In
Ramos v. Pangilinan, 20 this Court laid down
the rules relative to exemption of family homes
from execution: ASHaDT
For the family home to be exempt from
execution, distinction must be made as to
what law applies based on when it was
constituted and what requirements must be
complied with by the judgment debtor or his
successors claiming such privilege. Hence, two
sets of rules are applicable.
If the family home was constructed before the
effectivity of the Family Code or before August
3, 1988, then it must have been constituted
either judicially or extra-judicially as provided
under Articles 225, 229-231 and 233 of the
Civil Code. Judicial constitution of the family
home requires the filing of a verified petition
before the courts and the registration of the
court's order with the Registry of Deeds of the
area where the property is located. Meanwhile,
extrajudicial constitution is governed by
Articles 240 to 242 of the Civil Code and
involves the execution of a public instrument
which must also be registered with the
Registry of Property. Failure to comply with
either one of these two modes of constitution
will bar a judgment debtor from availing of the
privilege.
On the other hand, for family homes
constructed after the effectivity of the Family
Code on August 3, 1988, there is no need to
constitute extrajudicially or judicially, and the
exemption is effective from the time it was
constituted and lasts as long as any of its
beneficiaries under Art. 154 actually resides
therein. Moreover, the family home should
belong to the absolute community or conjugal
partnership, or if exclusively by one spouse,
its constitution must have been with consent
of the other, and its value must not exceed
certain amounts depending upon the area
where it is located. Further, the debts
incurred for which the exemption does not
apply as provided under Art. 155 for which
the family home is made answerable must
have been incurred after August 3, 1988. 21
(citations omitted)
In the earlier case of Kelley, Jr. v. Planters
Products, Inc., 22 we stressed that: aEDCSI
Under the Family Code, there is no need to
constitute the family home judicially or
extrajudicially. All family homes constructed
after the effectivity of the Family Code (August
3, 1988) are constituted as such by operation
of law. All existing family residences as of
August 3, 1988 are considered family homes
and are prospectively entitled to the benefits
accorded to a family home under the Family
Code. 23 (emphasis supplied and citation
omitted)
The foregoing rules on constitution of family
homes, for purposes of exemption from
execution, could be summarized as follows:
First, family residences constructed before the
effectivity of the Family Code or before August
3, 1988 must be constituted as a family home
either judicially or extrajudicially in
accordance with the provisions of the Civil
Code in order to be exempt from execution;
Second, family residences constructed after
the effectivity of the Family Code on August 3,
1988 are automatically deemed to be family
homes and thus exempt from execution from
the time it was constituted and lasts as long
as any of its beneficiaries actually resides
therein; TSIDEa
Third, family residences which were not
judicially or extrajudicially constituted as a
family home prior to the effectivity of the
Family Code, but were existing thereafter, are
considered as family homes by operation of
law and are prospectively entitled to the
benefits accorded to a family home under the
Family Code.
Here, the subject property became a family
residence sometime in January 1987. There
was no showing, however, that the same was
judicially or extrajudicially constituted as a
family home in accordance with the provisions
of the Civil Code. Still, when the Family Code
took effect on August 3, 1988, the subject
property became a family home by operation
of law and was thus prospectively exempt
from execution. The petitioners were thus
correct in asserting that the subject property
was a family home.
The family home's exemption from
execution must be set up and
proved to the Sheriff before the sale
of the property at public auction.
Despite the fact that the subject property is a
family home and, thus, should have been
exempt from execution, we nevertheless rule
that the CA did not err in dismissing the
petitioners' complaint for nullification of TCT
No. T-221755 (M). We agree with the CA that
the petitioners should have asserted the
subject property being a family home and its
being exempted from execution at the time it
was levied or within a reasonable time
thereafter. As the CA aptly pointed out: Cdpr
In the light of the facts above summarized, it
is evident that appellants did not assert their
claim of exemption within a reasonable time.
Certainly, reasonable time, for purposes of the
law on exemption, does not mean a time after
the expiration of the one-year period provided
for in Section 30 of Rule 39 of the Rules of
Court for judgment debtors to redeem the
property sold on execution, otherwise it would
render nugatory final bills of sale on execution
and defeat the very purpose of execution to
put an end to litigation. . . . . 24
The foregoing disposition is in accord with the
Court's November 25, 2005 Decision in
Honrado v. Court of Appeals, 25 where it was
categorically stated that at no other time can
the status of a residential house as a family
home can be set up and proved and its
exemption from execution be claimed but
before the sale thereof at public auction:
While it is true that the family home is
constituted on a house and lot from the time it
is occupied as a family residence and is
exempt from execution or forced sale under
Article 153 of the Family Code, such claim for
exemption should be set up and proved to the
Sheriff before the sale of the property at public
auction. Failure to do so would estop the party
from later claiming the exemption. As this
Court ruled in Gomez v. Gealone: AIcECS
Although the Rules of Court does not
prescribe the period within which to claim the
exemption, the rule is, nevertheless, well-
settled that the right of exemption is a
personal privilege granted to the judgment
debtor and as such, it must be claimed not by
the sheriff, but by the debtor himself at the
time of the levy or within a reasonable period
thereafter;
"In the absence of express provision it has
variously held that claim (for exemption) must
be made at the time of the levy if the debtor is
present, that it must be made within a
reasonable time, or promptly, or before the
creditor has taken any step involving further
costs, or before advertisement of sale, or at
any time before sale, or within a reasonable
time before the sale, or before the sale has
commenced, but as to the last there is
contrary authority."
In the light of the facts above summarized, it
is self-evident that appellants did not assert
their claim of exemption within a reasonable
time. Certainly, reasonable time, for purposes
of the law on exemption, does not mean a time
after the expiration of the one-year period
provided for in Section 30 of Rule 39 of the
Rules of Court for judgment debtors to redeem
the property sold on execution, otherwise it
would render nugatory final bills of sale on
execution and defeat the very purpose of
execution to put an end to litigation. We
said before, and We repeat it now, that
litigation must end and terminate sometime
and somewhere, and it is essential to an
effective administration of justice that, once a
judgment has become final, the winning party
be not, through a mere subterfuge, deprived of
the fruits of the verdict. We now rule that
claims for exemption from execution of
properties under Section 12 of Rule 39 of the
Rules of Court must be presented before its
sale on execution by the sheriff. 26 (citations
omitted)
Reiterating the foregoing in Spouses Versola v.
Court of Appeals, 27 this Court stated that:
TcEAIH
Under the cited provision, a family home is
deemed constituted on a house and lot from
the time it is occupied as a family residence;
there is no need to constitute the same
judicially or extrajudicially.
The settled rule is that the right to exemption
or forced sale under Article 153 of the Family
Code is a personal privilege granted to the
judgment debtor and as such, it must be
claimed not by the sheriff, but by the debtor
himself before the sale of the property at
public auction. It is not sufficient that the
person claiming exemption merely alleges that
such property is a family home. This claim for
exemption must be set up and proved to the
Sheriff. . . . . 28 (emphasis supplied and
citations omitted)
Having failed to set up and prove to the sheriff
the supposed exemption of the subject
property before the sale thereof at public
auction, the petitioners now are barred from
raising the same. Failure to do so estop them
from later claiming the said exemption.
Indeed, the family home is a sacred symbol of considerations demand that Claudio's title to
family love and is the repository of cherished the property be respected. Equity dictates that
memories that last during one's lifetime. 29 It the petitioners are made to suffer the
is likewise without dispute that the family consequences of their unexplained negligence.
home, from the time of its constitution and so
long as any of its beneficiaries actually resides WHEREFORE, in consideration of the
therein, is generally exempt from execution, foregoing disquisitions, the petition is
forced sale or attachment. 30 DENIED. The assailed Decision dated June 6,
2008 of the Court of Appeals in CA-G.R. CV
The family home is a real right, which is No. 79391, which affirmed the Decision of the
gratuitous, inalienable and free from Regional Trial Court of Malolos, Bulacan,
attachment. It cannot be seized by creditors Branch 22, in Civil Case No. 1058-M-99 and
except in certain special cases. 31 However, dismissed the complaint for declaration of
this right can be waived or be barred by laches nullity of TCT No. 221755 (M) and other
by the failure to set up and prove the status of documents, and the October 23, 2008
the property as a family home at the time of Resolution denying reconsideration, are
the levy or a reasonable time thereafter. AFFIRMED.
CcTIAH
SO ORDERED. DacASC
In this case, it is undisputed that the
petitioners allowed a considerable time to Carpio, Perez, Sereno and Perlas-Bernabe, *
lapse before claiming that the subject property JJ., concur.
is a family home and its exemption from
execution and forced sale under the Family
Code. The petitioners allowed the subject
property to be levied upon and the public sale
to proceed. One (1) year lapsed from the time
the subject property was sold until a Final
Deed of Sale was issued to Claudio and, later,
Araceli's Torrens title was cancelled and a new
one issued under Claudio's name, still, the
petitioner remained silent. In fact, it was only
after the respondents filed a complaint for
unlawful detainer, or approximately four (4)
years from the time of the auction sale, that
the petitioners claimed that the subject
property is a family home, thus, exempt from
execution.

For all intents and purposes, the petitioners'

negligence or omission to assert their right
within a reasonable time gives rise to the
presumption that they have abandoned,
waived or declined to assert it. Since the
exemption under Article 153 of the Family
Code is a personal right, it is incumbent upon
the petitioners to invoke and prove the same
within the prescribed period and it is not the
sheriff's duty to presume or raise the status of
the subject property as a family home.
DcSTaC

The petitioners' negligence or omission

renders their present assertion doubtful; it
appears that it is a mere afterthought and
artifice that cannot be countenanced without
doing the respondents injustice and depriving
the fruits of the judgment award in their favor.
Simple justice and fairness and equitable
THIRD DIVISION
[G.R. No. 165950. August 11, 2010.]
EQUITABLE PCI BANK, INC., petitioner, vs.
OJ-MARK TRADING, INC. and SPOUSES
OSCAR AND EVANGELINE MARTINEZ,
respondents.
DECISION
VILLARAMA, JR., J p:
Before us is a petition for review on certiorari
filed by petitioner under Rule 45 of the 1997
Rules of Civil Procedure, as amended, praying
for the reversal of the Decision 1 dated
October 29, 2004 of the Court of Appeals (CA)
in CA-G.R. SP No. 77703, which denied its
petition for certiorari assailing the trial court's
orders granting respondents' application for a
writ of preliminary injunction. aHIDAE
The factual antecedents:
Respondent-spouses Oscar and Evangeline
Martinez obtained loans from petitioner
Equitable PCI Bank, Inc. in the aggregate
amount of Four Million Forty-Eight Thousand
Eight Hundred Pesos (P4,048,800.00). As
security for the said amount, a Real Estate
Mortgage (REM) was executed over a
condominium unit in San Miguel Court, Valle
Verde 5, Pasig City, Metro Manila where the
spouses are residing. Respondent Oscar
Martinez signed the REM both as principal
debtor and as President of the registered
owner and third-party mortgagor, respondent
OJ-Mark Trading, Inc. The REM was
annotated on Condominium Certificate of Title
No. PT-21363 of the Registry of Deeds of Pasig
City. 2
Respondent-spouses defaulted in the payment
of their outstanding loan obligation, which as
of October 31, 2002 stood at P4,918,160.03. 3
In a letter dated May 15, 2002, they offered to
settle their indebtedness "with the assignment
to the Bank of a commercial lot of
corresponding value" and also requested for
recomputation at a lower interest rate and
condonation of penalties. 4 While petitioner's
officers held a meeting with respondent Oscar
Martinez, the latter however failed to submit
the required documents such as certificates of
title and tax declarations so that the bank can
evaluate his proposal to pay the mortgage debt
via dacion en pago. 5 Consequently, petitioner
initiated the extrajudicial foreclosure of the
real estate mortgage by filing an ex parte
petition before the Office of the Executive
Judge, Regional Trial Court (RTC) of Pasig
City. 6
On January 23, 2003, respondents filed Civil
Case No. 69294 for "Temporary Restraining
Order ('TRO'), Injunction and Annulment of
Extrajudicial Foreclosure Sale" in the RTC of
Pasig City. On January 27, 2003, the trial
court granted a TRO effective for twenty (20)
days. aETDIc
In their Complaint with Application for
Temporary Restraining Order, 7 respondents
sought to enjoin the impending foreclosure
sale alleging that the same was hasty,
premature, unreasonable and unwarranted,
and also claiming defects in the execution of
the REM. Respondents imputed bad faith on
the part of petitioner who did not officially
inform them of the denial or disapproval of
their proposal to settle the loan obligation by
"dacion via assignment of a commercial
property." Respondents maintained that aside
from the REM being illegally notarized,
incomplete and unenforceable, the obligation
subject thereof had been extinguished by the
dacion proposal considering that the value of
the property offered was more than sufficient
to pay for the mortgage debt. It was further
averred that the subject property is being used
and occupied by respondent-spouses as a
family home.
In his Order dated February 17, 2003, Judge
Mariano M. Singzon, Jr. granted the
application for a writ of preliminary
injunction. 8 Petitioner filed a motion for
reconsideration which was denied under the
Order dated April 21, 2003. 9
Petitioner questioned the issuance of
preliminary injunction before the CA arguing
that the respondents are not entitled to
injunctive relief after having admitted that
they were unable to settle their loan
obligations. By Decision dated October 29,
2004, the appellate court sustained the
assailed orders, holding that:
. . . respondent spouses have sufficiently
shown that they have a right over the
condominium unit which is subject of the
mortgage. This proprietary right over the
condominium is what they are trying to
protect when they applied for preliminary
injunction. As respondent spouses have
alleged in their complaint, the issuance of
notice of foreclosure sale is at most premature
as there are still several factual issues that proprietary right over the mortgaged property
need to be resolved before a foreclosure can be subject of foreclosure is utterly baseless, for
effected. Such already constitute the the following reasons: first, while the
ostensible right which respondent spouses condominium unit is supposedly a family
possess in order for the foreclosure sale to be home, it is admittedly owned by respondent
temporarily enjoined. 10 cSDIHT corporation and not by the conjugal
partnership or absolute community of
Hence, this petition raising the following respondent-spouses; and second, even
grounds: assuming that OJ-Mark Trading, Inc. is a
I family corporation, respondents' stance
contravenes the established rule that
THE HONORABLE COURT OF APPEALS properties registered in the name of the
COMMITTED A GRAVE REVERSIBLE ERROR corporation are owned by it as an entity
IN HOLDING THAT THE TRIAL COURT DID separate and distinct from its members or
NOT COMMIT GRAVE ABUSE OF stockholders. 12
DISCRETION AMOUNTING TO LACK OF
JURISDICTION IN ISSUING THE ASSAILED As to the alleged proposal of respondent Oscar
WRIT OF PRELIMINARY INJUNCTION Martinez to assign commercial lots by dacion
en pago to settle their loan obligations,
II petitioner pointed out that the properties
offered for dacion are not owned, and much
THE HONORABLE COURT OF APPEALS less to be owned by him, but purportedly
COMMITTED A GRAVE REVERSIBLE ERROR owned by another corporation (developer), the
IN HOLDING THAT INDIVIDUAL president of which supposedly owes him a
RESPONDENTS SPS. MARTINEZ HAVE sum of money. Respondent Oscar Martinez
PROPRIETARY RIGHT OVER THE likewise admitted during the hearings before
MORTGAGED CONDOMINIUM UNIT the trial court his unpaid loan with petitioner.
Moreover, with the filing of a petition for
III
extrajudicial foreclosure of the real estate
THE HONORABLE COURT OF APPEALS mortgage by petitioner, it serves more than a
COMMITTED A GRAVE REVERSIBLE ERROR formal rejection of respondents' dacion en
IN HOLDING THAT SUCH PURPORTED pago offer. 13
PROPRIETARY RIGHT OF RESPONDENTS
SPS. MARTINEZ DESERVES THE On their part, the respondents contended that
PROTECTIVE MANTLE OF A WRIT OF the petition raises factual issues not proper in
PRELIMINARY INJUNCTION DESPITE THEIR an appeal by certiorari under Rule 45. They
asserted that the trial court correctly found
CLEAR AND UNEQUIVOCAL ADMISSION OF
THE OUTSTANDING LOANS AND THEIR sufficient legal basis to grant the writ of
DELINQUENCY preliminary injunction after conducting a
summary hearing in which both parties
IV actively participated and submitted oral and
documentary evidence. Such evidence
THE HONORABLE COURT OF APPEALS adduced by respondents, as well as the
ERRED IN HOLDING THAT THERE ARE STILL Affidavit dated January 24, 2003 of Atty.
SEVERAL FACTUAL ISSUES TO BE Oscar Martinez (adopted in the February 7,
RESOLVED IN A FULL-BLOWN TRIAL 2003 hearing) fully supported their application
BEFORE PETITIONER EPCIB COULD and hence the trial court did not act
EXERCISE ITS STATUTORY AND EQUITABLE precipitately or arbitrarily in granting
RIGHT TO FORECLOSE 11 injunctive relief. 14 ECTSDa
The sole issue to be resolved is whether or not Respondents argued that they appear to be
the respondents have shown a clear legal right entitled to the relief demanded by their
to enjoin the foreclosure and public auction of Complaint "because petitioner was in bad
the third-party mortgagor's property while the faith when it proceeded to foreclose while
case for annulment of REM on said property is there was still a pending written proposal to
being tried. SDHCac pay." They stand to lose a prime property, and
thus made a serious and sincere offer by way
Petitioner argued that the appellate court's
of dacion en pago. To show good faith and as
conclusion that respondents possess
required by petitioner to continue the
negotiations for dacion, respondent Atty.
Oscar Martinez even paid P100,000.00 in
October 2002, which petitioner accepted. But
petitioner maliciously, fraudulently and
hastily proceeded to foreclose the renovated
mortgaged property, apparently motivated by
its discovery after re-appraisal that the floor
area of the townhouse and number of its
rooms had doubled (from 180.750 sq. m. with
three [3] bedrooms, it is now 350 sq. m. with
six [6] bedrooms). Respondents contended
that as creditor, it was petitioner's duty not to
sit on respondents' dacion offer and should
have informed them in writing that said offer
is rejected. By hanging on the dacion talks,
petitioner thus prevented the respondents'
repayment of the loan, in malicious haste to
acquire the condominium unit as asset. 15
Respondents further claimed that the
extrajudicial foreclosure will cause grave
injustice and irreparable injury to respondent-
spouses and their four (4) young children
because their family home, in which they were
residing since 1997, at least insofar as the
unencumbered area in excess of 180.750 sq.
m., is exempt from forced sale or execution
under Article 155 of the Family Code.
Petitioner, on the other hand, will not suffer
any loss if the foreclosure will not proceed. 16
With respect to the commercial lots offered in
dacion, respondents fault the petitioner in
deliberately ignoring the fact that the Blue
Mountains Subdivision located at Antipolo
City was already approved by the Land
Registration Authority; although the
subdivided lots have already been applied, the
individual titles had not yet been issued. It
was therefore impossible for respondents to
deliver these titles to petitioner by October 21,
2002 considering the normal time it takes to
secure land titles. Respondents deplored the
sudden filing of the petition for extrajudicial
foreclosure, which was unfair as the
negotiations had already reached the stage
when petitioner scheduled an ocular
inspection for the appraisal of the lots.
However, for unknown reasons, petitioner did
not push through with the inspection. 17
HaIATC
We grant the petition.
Section 3, Rule 58 of the Rules of Court
provides that:
SEC. 3. Grounds for issuance of
preliminary injunction. A preliminary
injunction may be granted when it is
established:
(a) That the applicant is entitled to the
relief demanded, and the whole or part of such
relief consists in restraining the commission
or continuance of the act or acts complained
of, or in requiring the performance of an act or
acts, either for a limited period or perpetually;
(b) That the commission, continuance or
non-performance of the act or acts complained
of during the litigation would probably work
injustice to the applicant; or
(c) That a party, court, agency or a person
is doing, threatening, or is attempting to do, or
is procuring or suffering to be done, some act
or acts probably in violation of the rights of
the applicant respecting the subject of the
action or proceeding, and tending to render
the judgment ineffectual.
As such, a writ of preliminary injunction may
be issued only upon clear showing of an
actual existing right to be protected during the
pendency of the principal action. The twin
requirements of a valid injunction are the
existence of a right and its actual or
threatened violations. Thus, to be entitled to
an injunctive writ, the right to be protected
and the violation against that right must be
shown. 18 A writ of preliminary injunction
may be issued only upon clear showing of an
actual existing right to be protected during the
pendency of the principal action. 19
The issuance of a preliminary injunction rests
entirely within the discretion of the court
taking cognizance of the case and is generally
not interfered with except in cases of manifest
abuse. 20 For the issuance of the writ of
preliminary injunction to be proper, it must be
shown that the invasion of the right sought to
be protected is material and substantial, that
the right of complainant is clear and
unmistakable and that there is an urgent and
paramount necessity for the writ to prevent
serious damage. In the absence of a clear legal
right, the issuance of a writ of injunction
constitutes grave abuse of discretion. 21
AaCcST
The possibility of irreparable damage without
proof of actual existing right is no ground for
an injunction. 22 Hence, it is not sufficient for
the respondents to simply harp on the serious
damage they stand to suffer if the foreclosure
sale is not stayed. They must establish such
clear and unmistakable right to the
injunction. In Duvaz Corporation v. Export
and Industry Bank, 23 we emphasized that it
is necessary for the petitioner to establish in
the main case its rights on an alleged dacion
en pago agreement before those rights can be
deemed actual and existing, which would
justify the injunctive writ. Thus:
In Almeida v. Court of Appeals, the Court
stressed how important it is for the applicant
for an injunctive writ to establish his right
thereto by competent evidence:
Thus, the petitioner, as plaintiff, was
burdened to adduce testimonial and/or
documentary evidence to establish her right to
the injunctive writs. It must be stressed that
injunction is not designed to protect
contingent or future rights, and, as such, the
possibility of irreparable damage without proof
of actual existing right is no ground for an
injunction. A clear and positive right
especially calling for judicial protection must
be established. Injunction is not a remedy to
protect or enforce contingent, abstract, or
future rights; it will not issue to protect a right
not in esse and which may never arise, or to
restrain an action which did not give rise to a
cause of action. There must be an existence of
an actual right. Hence, where the plaintiff's
right or title is doubtful or disputed,
injunction is not proper.
An injunctive remedy may only be resorted to
when there is a pressing necessity to avoid
injurious consequences which cannot be
remedied under any standard compensation.
The possibility of irreparable damage without
proof of an actual existing right would not
justify injunctive relief in his favor.
xxx xxx xxx
. . . . In the absence of a clear legal right, the
issuance of the injunctive writ constitutes
grave abuse of discretion. As the Court had
the occasion to state in Olalia v. Hizon, 196
SCRA 665 (1991): IEHScT
It has been consistently held that there is no
power the exercise of which is more delicate,
which requires greater caution, deliberation
and sound discretion, or more dangerous in a
doubtful case, than the issuance of an
injunction. It is the strong arm of equity that
should never be extended unless to cases of
great injury, where courts of law cannot afford
an adequate or commensurate remedy in
damages.
Every court should remember that an
injunction is a limitation upon the freedom of
action of the defendant and should not be
granted lightly or precipitately. It should be
granted only when the court is fully satisfied
that the law permits it and the emergency
demands it. . . .
We are in full accord with the CA when it
struck down, for having been issued with
grave abuse of discretion, the RTC's Order of
September 25, 2002, granting petitioner's
prayer for a writ of preliminary injunction
during the pendency of the main case, Civil
Case No. 02-1029. The reason therefor is that
the right sought to be protected by the
petitioner in this case through the writ of
preliminary injunction is merely contingent
and not in esse. It bears stressing that the
existing written contract between petitioner
and respondent was admittedly one of loan
restructuring; there is no mention whatsoever
or even a slightest reference in that written
contract to a supposed agreement of dacion en
pago. In fine, it is still necessary for petitioner
to establish in the main case its rights on the
alleged dacion en pago before those rights
become in esse or actual and existing. Only
then can the injunctive writ be properly
issued. It cannot be the other way around.
Otherwise, it will be like putting the cart
before the horse. 24 [EMPHASIS SUPPLIED.]
In the case at bar, respondents failed to show
that they have a right to be protected and that
the acts against which the writ is to be
directed are violative of the said right. On the
face of their clear admission that they were
unable to settle their obligations which were
secured by the mortgage, petitioner has a
clear right to foreclose the mortgage. 25
Foreclosure is but a necessary consequence of
non-payment of a mortgage indebtedness. 26
In a real estate mortgage when the principal
obligation is not paid when due, the
mortgagee has the right to foreclose the
mortgage and to have the property seized and
sold with the view of applying the proceeds to
the payment of the obligation. 27 CSDcTH
This Court has denied the application for a
Writ of Preliminary Injunction that would
enjoin an extrajudicial foreclosure of a
mortgage, and declared that foreclosure is
proper when the debtors are in default of the
payment of their obligation. Where the parties
stipulated in their credit agreements,
mortgage contracts and promissory notes that
the mortgagee is authorized to foreclose the
mortgaged properties in case of default by the
mortgagors, the mortgagee has a clear right to
foreclosure in case of default, making the
issuance of a Writ of Preliminary Injunction
improper. 28 In these cases, unsubstantiated
allegations of denial of due process and
prematurity of a loan are not sufficient to
defeat the mortgagee's unmistakable right to
an extrajudicial foreclosure. 29
We cannot agree with respondents' position
that petitioner's act of initiating extrajudicial
foreclosure proceeding while they negotiated
for a dacion en pago was illegal and done in
bad faith. As respondent-spouses themselves
admitted, they failed to comply with the
documentary requirements imposed by the
petitioner for proper evaluation of their
proposal. In any event, petitioner had found
the subdivision lots offered for dacion as
unacceptable, not only because the lots were
not owned by respondents as in fact, the
lots were not yet titled but also for the
reason that respondent Oscar Martinez's
claimed right therein was doubtful or
inchoate, and hence not in esse.
Requests by debtors-mortgagors for
extensions to pay and proposals for
restructuring of the loans, without acceptance
by the creditor-mortgagee, remain as that.
Without more, those proposals neither
novated the parties' mortgage contract nor
suspended its execution. 30 In the same vein,
negotiations for settlement of the mortgage
debt by dacion en pago do not extinguish the
same nor forestall the creditor-mortgagee's
exercise of its right to foreclose as provided in
the mortgage contract.
As we held in Tecnogas Philippines
Manufacturing Corporation v. Philippine
National Bank 31 EaICAD
Dacion en pago is a special mode of payment
whereby the debtor offers another thing to the
creditor who accepts it as equivalent of
payment of an outstanding obligation. The
undertaking is really one of sale, that is, the
creditor is really buying the thing or property
of the debtor, payment for which is to be
charged against the debtor's debt. As such,
the essential elements of a contract of sale,
namely, consent, object certain, and cause or
consideration must be present. It is only when
the thing offered as an equivalent is accepted
by the creditor that novation takes place,
thereby, totally extinguishing the debt.
On the first issue, the Court of Appeals did
not err in ruling that Tecnogas has no clear
legal right to an injunctive relief because its
proposal to pay by way of dacion en pago did
not extinguish its obligation. Undeniably,
Tecnogas' proposal to pay by way of dacion en
pago was not accepted by PNB. Thus, the
unaccepted proposal neither novates the
parties' mortgage contract nor suspends its
execution as there was no meeting of the
minds between the parties on whether the
loan will be extinguished by way of dacion en
pago. Necessarily, upon Tecnogas' default in
its obligations, the foreclosure of the REM
becomes a matter of right on the part of PNB,
for such is the purpose of requiring security
for the loans. [EMPHASIS SUPPLIED.]
Respondent-spouses' alleged "proprietary
right" in the mortgaged condominium unit
appears to be based merely on respondents'
averment that respondent OJ-Mark Trading,
Inc. is a family corporation. However, there is
neither allegation nor evidence to show prima
facie that such purported right, whether as
majority stockholder or creditor, was superior
to that of petitioner as creditor-mortgagee. The
rule requires that in order for a preliminary
injunction to issue, the application should
clearly allege facts and circumstances showing
the existence of the requisites. It must be
emphasized that an application for injunctive
relief is construed strictly against the pleader.
32
We note that the claim of exemption under
Art. 153 of the Family Code, thereby raising
issue on the mortgaged condominium unit
being a family home and not corporate
property, is entirely inconsistent with the clear
contractual agreement of the REM. 33
Assuming arguendo that the mortgaged
condominium unit constitutes respondents'
family home, the same will not exempt it from
foreclosure as Article 155 (3) of the same Code
allows the execution or forced sale of a family
home "for debts secured by mortgages on the
premises before or after such constitution."
Respondents thus failed to show an ostensible
right that needs protection of the injunctive
writ. Clearly, the appellate court seriously
erred in sustaining the trial court's orders
granting respondents' application for
preliminary injunction. cSTHaE
Anent the grave and irreparable injury which
respondents alleged they will suffer if no
preliminary injunction is issued, this Court
has previously declared that all is not lost for
defaulting mortgagors whose properties were
foreclosed by creditors-mortgagees, viz.:
In any case, petitioners will not be deprived
outrightly of their property. Pursuant to
Section 47 of the General Banking Law of
2000, mortgagors who have judicially or
extrajudicially sold their real property for the
full or partial payment of their obligation have
the right to redeem the property within one
year after the sale. They can redeem their real
estate by paying the amount due, with interest
rate specified, under the mortgage deed; as
well as all the costs and expenses incurred by
the bank.
Moreover, in extrajudicial foreclosures,
petitioners have the right to receive any
surplus in the selling price. This right was
recognized in Sulit v. CA, in which the Court
held that "if the mortgagee is retaining more of
the proceeds of the sale than he is entitled to,
this fact alone will not affect the validity of the
sale but simply gives the mortgagor a cause of
action to recover such surplus. 34
WHEREFORE, the petition is GRANTED. The
Decision dated October 29, 2004 of the Court
of Appeals in CA-G.R. SP No. 77703 is hereby
REVERSED and SET ASIDE. Respondents'
application for a writ of preliminary injunction
is DENIED.
No costs. HSaEAD
SO ORDERED.
Carpio Morales, Brion, Bersamin and Abad, *
JJ., concur.
THIRD DIVISION
[G.R. No. 185920. July 20, 2010.]
JUANITA TRINIDAD RAMOS, ALMA RAMOS
WORAK, MANUEL T. RAMOS, JOSEFINA R.
ROTHMAN, SONIA R. POST, ELVIRA P.
MUNAR, and OFELIA R. LIM, petitioners,
vs. DANILO PANGILINAN, RODOLFO
SUMANG, LUCRECIO BAUTISTA and
ROLANDO ANTENOR, respondents.
DECISION
CARPIO MORALES, J p:
Respondents filed in 2003 a complaint 1 for
illegal dismissal against E.M. Ramos Electric,
Inc., a company owned by Ernesto M. Ramos
(Ramos), the patriarch of herein petitioners.
By Decision 2 of April 15, 2005, the Labor
Arbiter ruled in favor of respondents and
ordered Ramos and the company to pay the
aggregate amount of P1,661,490.30
representing their backwages, separation pay,
13th month pay & service incentive leave pay.
HTaIAC
The Decision having become final and
executory and no settlement having been
forged by the parties, the Labor Arbiter issued
on September 8, 2005 a writ of execution 3
which the Deputy Sheriff of the National Labor
Relations Commission (NLRC) implemented by
levying a property in Ramos' name covered by
TCT No. 38978, situated in Pandacan, Manila
(Pandacan property).
Alleging that the Pandacan property was the
family home, hence, exempt from execution to
satisfy the judgment award, Ramos and the
company moved to quash the writ of
execution. 4 Respondents, however, averred
that the Pandacan property is not the Ramos
family home, as it has another in Antipolo,
and the Pandacan property in fact served as
the company's business address as borne by
the company's letterhead. Respondents added
that, assuming that the Pandacan property
was indeed the family home, only the value
equivalent to P300,000 was exempt from
execution.
By Order 5 of August 2, 2006, the Labor
Arbiter denied the motion to quash, hence,
Ramos and the company appealed to the
NLRC which affirmed the Labor Arbiter's
Order.
Ramos and the company appealed to the
Court of Appeals during the pendency of
which Ramos died and was substituted by
herein petitioners. Petitioners also filed before
the NLRC, as third-party claimants, a
Manifestation questioning the Notice to Vacate
issued by the Sheriff, alleging that assuming
that the Pandacan property may be levied
upon, the family home straddled two (2) lots,
including the lot covered by TCT No. 38978,
hence, they cannot be asked to vacate the
house. The Labor Arbiter was later to deny, by
Decision of May 7, 2009, the third-party
claim, holding that Ramos' death and
petitioners' substitution as his compulsory
heirs would not nullify the sale at auction of
the Pandacan property. And the NLRC 6
would later affirm the Labor Arbiter's ruling,
noting that petitioners failed to exercise their
right to redeem the Pandacan property within
the one (1) year period or until January 16,
2009. The NLRC brushed aside petitioners'
contention that they should have been given a
fresh period of 1 year from the time of Ramos'
death on July 29, 2008 or until July 30, 2009
to redeem the property, holding that to do so
would give petitioners, as mere heirs, a better
right than the Ramos'. aIAEcD
As to petitioners' claim that the property was
covered by the regime of conjugal partnership
of gains and as such only Ramos' share can
be levied upon, the NLRC ruled that
petitioners failed to substantiate such claim
and that the phrase in the TCT indicating the
registered owner as "Ernesto Ramos, married
to Juanita Trinidad, Filipinos," did not mean
that both owned the property, the phrase
having merely described Ramos' civil status.
Before the appellate court, petitioners alleged
that the NLRC erred in ruling that the market
value of the property was P2,177,000 as
assessed by the City Assessor of Manila and
appearing in the documents submitted before
the Labor Arbiter, claiming that at the time
the Pandacan property was constituted as the
family home in 1944, its value was way below
P300,000; and that Art. 153 of the Family
Code was applicable, hence, they no longer
had to resort to judicial or extrajudicial
constitution.
In the assailed Decision 7 of September 24,
2008, the appellate court, in denying
petitioners' appeal, held that the Pandacan
property was not exempted from execution, for
while "Article 153 8 of the Family Code
provides that the family home is deemed
constituted on a house and lot from the time it
is occupied as a family residence, [it] did not
mean that the article has a retroactive effect
such that all existing family residences are
deemed to have been constituted as family
homes at the time of their occupation prior to
the effectivity of the Family Code." CaAIES
The appellate court went on to hold that what
was applicable law were Articles 224 to 251 of
the Civil Code, hence, there was still a need to
either judicially or extrajudicially constitute
the Pandacan property as petitioners' family
home before it can be exempted; and as
petitioners failed to comply therewith, there
was no error in denying the motion to quash
the writ of execution.
The only question raised in the present
petition for review on certiorari is the propriety
of the Court of Appeals Decision holding that
the levy upon the Pandacan property was
valid.
The petition is devoid of merit.
Indeed, the general rule is that the family
home is a real right which is gratuitous,
inalienable and free from attachment,
constituted over the dwelling place and the
land on which it is situated, which confers
upon a particular family the right to enjoy
such properties, which must remain with the
person constituting it and his heirs. It cannot
be seized by creditors except in certain special
cases. 9
Kelley, Jr. v. Planters Products, Inc. 10 lays
down the rules relative to the levy on
execution over the family home, viz.: SCaITA
No doubt, a family home is generally exempt
from execution provided it was duly
constituted as such. There must be proof that
the alleged family home was constituted
jointly by the husband and wife or by an
unmarried head of a family. It must be the
house where they and their family actually
reside and the lot on which it is situated. The
family home must be part of the properties of
the absolute community or the conjugal
partnership, or of the exclusive properties of
either spouse with the latter's consent, or on
the property of the unmarried head of the
family. The actual value of the family home
shall not exceed, at the time of its
constitution, the amount of P300,000 in
urban areas and P200,000 in rural areas.
Under the Family Code, there is no need to
constitute the family home judicially or
extrajudicially. All family homes constructed
after the effectivity of the Family Code (August
3, 1988) are constituted as such by operation
of law. All existing family residences as of
August 3, 1988 are considered family homes
and are prospectively entitled to the benefits
accorded to a family home under the Family
Code.
exceed certain amounts depending upon the
area where it is located. Further, the debts
incurred for which the exemption does not
apply as provided under Art. 155 14 for which
the family home is made answerable must
have been incurred after August 3, 1988.
IDCHTE

The exemption is effective from the time of the
constitution of the family home as such and
lasts as long as any of its beneficiaries
actually resides therein. Moreover, the debts
for which the family home is made answerable
must have been incurred after August 3,
1988. Otherwise (that is, if it was incurred
prior to August 3, 1988), the alleged family
home must be shown to have been constituted
either judicially or extrajudicially pursuant to
the Civil Code. (emphasis supplied) cDAISC
For the family home to be exempt from
execution, distinction must be made as to
what law applies based on when it was
constituted and what requirements must be
complied with by the judgment debtor or his
successors claiming such privilege. Hence, two
sets of rules are applicable.
If the family home was constructed before the
effectivity of the Family Code or before August
3, 1988, then it must have been constituted
either judicially or extra-judicially as provided
under Articles 225, 229-231 and 233 of the
Civil Code. 11 Judicial constitution of the
family home requires the filing of a verified
petition before the courts and the registration
of the court's order with the Registry of Deeds
of the area where the property is located.
Meanwhile, extrajudicial constitution
governed by Articles 240 to 242 12 of the Civil
Code and involves the execution of a public
instrument which must also be registered with
the Registry of Property. Failure to comply
with either one of these two modes of
constitution will bar a judgment debtor from
availing of the privilege.
And in both cases, whether under the Civil
Code or the Family Code, it is not sufficient
that the person claiming exemption merely
alleges that such property is a family home.
This claim for exemption must be set up and
proved. 15
In the present case, since petitioners claim
that the family home was constituted prior to
August 3, 1988, or as early as 1944, they
must comply with the procedure mandated by
the Civil Code. There being absolutely no proof
that the Pandacan property was judicially or
extrajudicially constituted as the Ramos'
family home, the law's protective mantle
cannot be availed of by petitioners.
Parenthetically, the records show that the
sheriff exhausted all means to execute the
judgment but failed because Ramos' bank
accounts 16 were already closed while other
properties in his or the company's name had
already been transferred, 17 and the only
property left was the Pandacan property.
WHEREFORE, the petition is DENIED.
SO ORDERED.
Brion, Bersamin, Abad * and Villarama, Jr.,
JJ., concur.
is

On the other hand, for family homes

constructed after the effectivity of the Family
Code on August 3, 1988, there is no need to
constitute extrajudicially or judicially, and the
exemption is effective from the time it was
constituted and lasts as long as any of its
beneficiaries under Art. 154 13 actually
resides therein. Moreover, the family home
should belong to the absolute community or
conjugal partnership, or if exclusively by one
spouse, its constitution must have been with
consent of the other, and its value must not
EN BANC
[G.R. No. 206248. February 18, 2014.]
GRACE M. GRANDE, petitioner, vs.
PATRICIO T. ANTONIO, respondent.
DECISION
VELASCO, JR., J p:
Before this Court is a Petition for Review on
Certiorari under Rule 45, assailing the July
24, 2012 Decision 1 and March 5, 2013
Resolution 2 of the Court of Appeals (CA) in
CA-G.R. CV No. 96406. CDScaT
As culled from the records, the facts of this
case are:
Petitioner Grace Grande (Grande) and
respondent Patricio Antonio (Antonio) for a
period of time lived together as husband and
wife, although Antonio was at that time
already married to someone else. 3 Out of this
illicit relationship, two sons were born: Andre
Lewis (on February 8, 1998) and Jerard
Patrick (on October 13, 1999). 4 The children
were not expressly recognized by respondent
as his own in the Record of Births of the
children in the Civil Registry. The parties'
relationship, however, eventually turned sour,
and Grande left for the United States with her
two children in May 2007. This prompted
respondent Antonio to file a Petition for
Judicial Approval of Recognition with Prayer
to take Parental Authority, Parental Physical
Custody, Correction/Change of Surname of
Minors and for the Issuance of Writ of
Preliminary Injunction before the Regional
Trial Court, Branch 8 of Aparri, Cagayan
(RTC), appending a notarized Deed of
Voluntary Recognition of Paternity of the
children. 5
On September 28, 2010, the RTC rendered a
Decision in favor of herein respondent
Antonio, ruling that "[t]he evidence at hand is
overwhelming that the best interest of the
children can be promoted if they are under the
sole parental authority and physical custody
of [respondent Antonio]." 6 Thus, the court a
quo decreed the following: SHaIDE
WHEREFORE, foregoing premises considered,
the Court hereby grants [Antonio's] prayer for
recognition and the same is hereby judicially
approved. . . . Consequently, the Court
forthwith issues the following Order granting
the other reliefs sought in the Petition, to wit:
a. Ordering the Office of the City Registrar
of the City of Makati to cause the entry of the
name of [Antonio] as the father of the
aforementioned minors in their respective
Certificate of Live Birth and causing the
correction/change and/or annotation of the
surnames of said minors in their Certificate of
Live Birth from Grande to Antonio;
b. Granting [Antonio] the right to jointly
exercise Parental Authority with [Grande] over
the persons of their minor children, Andre
Lewis Grande and Jerard Patrick Grande;
c. Granting [Antonio] primary right and
immediate custody over the parties' minor
children Andre Lewis Grandre and Jerard
Patrick Grande who shall stay with [Antonio's]
residence in the Philippines from Monday
until Friday evening and to [Grande's] custody
from Saturday to Sunday evening;
d. Ordering [Grande] to immediately
surrender the persons and custody of minors
Andre Lewis Grande and Jerard Patrick
Grande unto [Antonio] for the days covered by
the Order;
e. Ordering parties to cease and desist
from bringing the aforenamed minors outside
of the country, without the written consent of
the other and permission from the court.
f. Ordering parties to give and share the
support of the minor children Andre Lewis
Grande and Jerard Patrick Grande in the
amount of P30,000 per month at the rate of
70% for [Antonio] and 30% for [Grande]. 7
(Emphasis supplied.) EHSTcC
Aggrieved, petitioner Grande moved for
reconsideration. However, her motion was
denied by the trial court in its Resolution
dated November 22, 2010 8 for being pro
forma and for lack of merit.
Petitioner Grande then filed an appeal with
the CA attributing grave error on the part of
the RTC for allegedly ruling contrary to the
law and jurisprudence respecting the grant of
sole custody to the mother over her
illegitimate children. 9 In resolving the appeal,
the appellate court modified in part the
Decision of the RTC. The dispositive portion of
the CA Decision reads:
WHEREFORE, the appeal is partly GRANTED.
Accordingly, the appealed Decision of the
Regional Trial Court Branch 8, Aparri
Cagayan in SP Proc. Case No. 11-4492 is
MODIFIED in part and shall hereinafter read
as follows:
a. The Offices of the Civil Registrar
General and the City Civil Registrar of Makati
City are DIRECTED to enter the surname
Antonio as the surname of Jerard Patrick and
Andre Lewis, in their respective certificates of
live birth, and record the same in the Register
of Births;
b. [Antonio] is ORDERED to deliver the
minor children Jerard Patrick and Andre
Lewis to the custody of their mother herein
appellant, Grace Grande who by virtue hereof
is hereby awarded the full or sole custody of
these minor children;
c. [Antonio] shall have visitorial rights at
least twice a week, and may only take the
children out upon the written consent of
[Grande]; and
d. The parties are DIRECTED to give and
share in support of the minor children Jerard
Patrick and Andre Lewis in the amount of
P30,000.00 per month at the rate of 70% for
[Antonio] and 30% for [Grande]. (Emphasis
supplied.) DEHcTI
In ruling thus, the appellate court ratiocinated
that notwithstanding the father's recognition
of his children, the mother cannot be deprived
of her sole parental custody over them absent
the most compelling of reasons. 10 Since
respondent Antonio failed to prove that
petitioner Grande committed any act that
adversely affected the welfare of the children
or rendered her unsuitable to raise the
minors, she cannot be deprived of her sole
parental custody over their children.
The appellate court, however, maintained that
the legal consequence of the recognition made
by respondent Antonio that he is the father of
the minors, taken in conjunction with the
universally protected "best-interest-of-the-
child" clause, compels the use by the children
of the surname "ANTONIO." 11
As to the issue of support, the CA held that
the grant is legally in order considering that
not only did Antonio express his willingness to
give support, it is also a consequence of his
acknowledging the paternity of the minor
children. 12 Lastly, the CA ruled that there is
no reason to deprive respondent Antonio of his
visitorial right especially in view of the
constitutionally inherent and natural right of
parents over their children. 13
Not satisfied with the CA's Decision, petitioner
Grande interposed a partial motion for
reconsideration, particularly assailing the
order of the CA insofar as it decreed the
change of the minors' surname to "Antonio."
When her motion was denied, petitioner came
to this Court via the present petition. In it, she
posits that Article 176 of the Family Code
as amended by Republic Act No. (RA) 9255,
couched as it is in permissive language may
not be invoked by a father to compel the use
by his illegitimate children of his surname
without the consent of their mother.
We find the present petition impressed with
merit.
The sole issue at hand is the right of a father
to compel the use of his surname by his
illegitimate children upon his recognition of
their filiation. Central to the core issue is the
application of Art. 176 of the Family Code,
originally phrased as follows: TaCIDS
Illegitimate children shall use the surname
and shall be under the parental authority of
their mother, and shall be entitled to support
in conformity with this Code. The legitime of
each illegitimate child shall consist of one-half
of the legitime of a legitimate child. Except for
this modification, all other provisions in the
Civil Code governing successional rights shall
remain in force.
This provision was later amended on March
19, 2004 by RA 9255 14 which now reads:
Art. 176. Illegitimate children shall use the
surname and shall be under the parental
authority of their mother, and shall be entitled
to support in conformity with this Code.
However, illegitimate children may use the
surname of their father if their filiation has
been expressly recognized by their father
through the record of birth appearing in the
civil register, or when an admission in a
public document or private handwritten
instrument is made by the father. Provided,
the father has the right to institute an action
before the regular courts to prove non-filiation
during his lifetime. The legitime of each
illegitimate child shall consist of one-half of
the legitime of a legitimate child. (Emphasis
supplied.)
From the foregoing provisions, it is clear that
the general rule is that an illegitimate child
shall use the surname of his or her mother.
The exception provided by RA 9255 is, in case
his or her filiation is expressly recognized by
the father through the record of birth
appearing in the civil register or when an
admission in a public document or private
handwritten instrument is made by the father.
In such a situation, the illegitimate child may
use the surname of the father.
In the case at bar, respondent filed a petition
for judicial approval of recognition of the
filiation of the two children with the prayer for
the correction or change of the surname of the
minors from Grande to Antonio when a public
document acknowledged before a notary
public under Sec. 19, Rule 132 of the Rules of
Court 15 is enough to establish the paternity
of his children. But he wanted more: a judicial
conferment of parental authority, parental
custody, and an official declaration of his
children's surname as Antonio. HTAEIS
Parental authority over minor children is
lodged by Art. 176 on the mother; hence,
respondent's prayer has no legal mooring.
Since parental authority is given to the
mother, then custody over the minor children
also goes to the mother, unless she is shown
to be unfit.
Now comes the matter of the change of
surname of the illegitimate children. Is there a
legal basis for the court a quo to order the
change of the surname to that of respondent?
Clearly, there is none. Otherwise, the order or
ruling will contravene the explicit and
unequivocal provision of Art. 176 of the
Family Code, as amended by RA 9255.
Art. 176 gives illegitimate children the right to
decide if they want to use the surname of their
father or not. It is not the father (herein
respondent) or the mother (herein petitioner)
who is granted by law the right to dictate the
surname of their illegitimate children.
Nothing is more settled than that when the
law is clear and free from ambiguity, it must
be taken to mean what it says and it must be
given its literal meaning free from any
interpretation. 16 Respondent's position that
the court can order the minors to use his
surname, therefore, has no legal basis.
On its face, Art. 176, as amended, is free from
ambiguity. And where there is no ambiguity,
one must abide by its words. The use of the
word "may" in the provision readily shows that
an acknowledged illegitimate child is under no
compulsion to use the surname of his
illegitimate father. The word "may" is
permissive and operates to confer discretion
17 upon the illegitimate children. EcHTDI
It is best to emphasize once again that the
yardstick by which policies affecting children
are to be measured is their best interest. On
the matter of children's surnames, this Court
has, time and again, rebuffed the idea that the
use of the father's surname serves the best
interest of the minor child. In Alfon v.
Republic, 18 for instance, this Court allowed
even a legitimate child to continue using the
surname of her mother rather than that of her
legitimate father as it serves her best interest
and there is no legal obstacle to prevent her
from using the surname of her mother to
which she is entitled. In fact, in Calderon v.
Republic, 19 this Court, upholding the best
interest of the child concerned, even allowed
the use of a surname different from the
surnames of the child's father or mother.
Indeed, the rule regarding the use of a child's
surname is second only to the rule requiring
that the child be placed in the best possible
situation considering his circumstances.
In Republic of the Philippines v. Capote, 20
We gave due deference to the choice of an
illegitimate minor to use the surname of his
mother as it would best serve his interest,
thus:
The foregoing discussion establishes the
significant connection of a person's name to
his identity, his status in relation to his
parents and his successional rights as a
legitimate or illegitimate child. For sure, these
matters should not be taken lightly as to
deprive those who may, in any way, be
affected by the right to present evidence in
favor of or against such change.
The law and facts obtaining here favor
Giovanni's petition. Giovanni availed of the
proper remedy, a petition for change of name
under Rule 103 of the Rules of Court, and
complied with all the procedural
requirements. After hearing, the trial court
found (and the appellate court affirmed) that
the evidence presented during the hearing of
Giovanni's petition sufficiently established
that, under Art. 176 of the Civil Code,
Giovanni is entitled to change his name as he
was never recognized by his father while his
mother has always recognized him as her
child. A change of name will erase the
impression that he was ever recognized by his
father. It is also to his best interest as it will
facilitate his mother's intended petition to
have him join her in the United States. This
Court will not stand in the way of the
reunification of mother and son. (Emphasis
supplied.)
An argument, however, may be advanced
advocating the mandatory use of the father's
surname upon his recognition of his
illegitimate children, citing the Implementing
Rules and Regulations (IRR) of RA 9255, 21
which states:
Rule 7. Requirements for the Child to
Use the Surname of the Father
7.1 For Births Not Yet Registered
aSACED
7.1.1 The illegitimate child shall use the
surname of the father if a public document is
executed by the father, either at the back of
the Certificate of Live Birth or in a separate
document.
7.1.2 If admission of paternity is made
through a private instrument, the child shall
use the surname of the father, provided the
registration is supported by the following
documents:
xxx xxx xxx
7.2. For Births Previously Registered under
the Surname of the Mother
7.2.1 If filiation has been expressly
recognized by the father, the child shall use
the surname of the father upon the
submission of the accomplished AUSF
[Affidavit of Use of the Surname of the Father].
7.2.2 If filiation has not been expressly
recognized by the father, the child shall use
the surname of the father upon submission of
a public document or a private handwritten
instrument supported by the documents listed
in Rule 7.1.2.
7.3 Except in Item 7.2.1, the consent of the
illegitimate child is required if he/she has
reached the age of majority. The consent may
be contained in a separate instrument duly
notarized.
xxx xxx xxx
Rule 8. Effects of Recognition
8.1 For Births Not Yet Registered
8.1.1 The surname of the father shall be
entered as the last name of the child in the
Certificate of Live Birth. The Certificate of Live
Birth shall be recorded in the Register of
Births. HEcTAI
xxx xxx xxx
8.2 For Births Previously Registered under
the Surname of the Mother
8.2.1 If admission of paternity was made
either at the back of the Certificate of Live
Birth or in a separate public document or in a
private handwritten document, the public
document or AUSF shall be recorded in the
Register of Live Birth and the Register of
Births as follows:
"The surname of the child is hereby changed
from (original surname) to (new surname)
pursuant to RA 9255."
The original surname of the child appearing in
the Certificate of Live Birth and Register of
Births shall not be changed or deleted.
8.2.2 If filiation was not expressly recognized
at the time of registration, the public
document or AUSF shall be recorded in the
Register of Legal Instruments. Proper
annotation shall be made in the Certificate of
Live Birth and the Register of Births as
follows:
"Acknowledged by (name of father) on (date).
The surname of the child is hereby changed
from (original surname) on (date) pursuant to
RA 9255." (Emphasis supplied.)
Nonetheless, the hornbook rule is that an
administrative issuance cannot amend a
legislative act. In MCC Industrial Sales Corp.
v. Ssangyong Corporation, 22 We held:
After all, the power of administrative officials
to promulgate rules in the implementation of a
statute is necessarily limited to what is found
in the legislative enactment itself. The
implementing rules and regulations of a law
cannot extend the law or expand its coverage,
as the power to amend or repeal a statute is
vested in the Legislature. Thus, if a
discrepancy occurs between the basic law and
an implementing rule or regulation, it is the
former that prevails, because the law cannot
be broadened by a mere administrative
issuance an administrative agency certainly
cannot amend an act of Congress. HcaDIA
Thus, We can disregard contemporaneous
construction where there is no ambiguity in
law and/or the construction is clearly
erroneous. 23 What is more, this Court has
the constitutional prerogative and authority to
strike down and declare as void the rules of
procedure of special courts and quasi-judicial
bodies 24 when found contrary to statutes
and/or the Constitution. 25 Section 5 (5), Art.
VIII of the Constitution provides:
Sec. 5. The Supreme Court shall have
the following powers:
xxx xxx xxx
(5) Promulgate rules concerning the
protection and enforcement of constitutional
rights, pleading, practice and procedure in all
courts, the admission to the practice of law,
the Integrated Bar, and legal assistance to the
underprivileged. Such rules shall provide a
simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform
for all courts of the same grade, and shall not
diminish, increase, or modify substantive
rights. Rules of procedure of special courts
and quasi-judicial bodies shall remain
effective unless disapproved by the Supreme
Court. (Emphasis supplied.)
Thus, We exercise this power in voiding the
above-quoted provisions of the IRR of RA 9255
insofar as it provides the mandatory use by
illegitimate children of their father's surname
upon the latter's recognition of his paternity.
To conclude, the use of the word "shall" in the
IRR of RA 9255 is of no moment. The clear,
unambiguous, and unequivocal use of "may"
in Art. 176 rendering the use of an illegitimate
father's surname discretionary controls, and
illegitimate children are given the choice on
the surnames by which they will be known.
At this juncture, We take note of the letters
submitted by the children, now aged thirteen
(13) and fifteen (15) years old, to this Court
declaring their opposition to have their names
changed to "Antonio." 26 However, since these
letters were not offered before and evaluated
by the trial court, they do not provide any
evidentiary weight to sway this Court to rule
for or against petitioner. 27 A proper inquiry
into, and evaluation of the evidence of, the
children's choice of surname by the trial court
is necessary.
WHEREFORE, the instant petition is
PARTIALLY GRANTED. The July 24, 2012
Decision of the Court of Appeals in CA-G.R.
CV No. 96406 is MODIFIED, the dispositive
portion of which shall read:
WHEREFORE, the appeal is partly GRANTED.
Accordingly, the appealed Decision of the
Regional Trial Court Branch 8, Aparri
Cagayan in SP Proc. Case No. 11-4492 is
MODIFIED in part and shall hereinafter read
as follows: TEDAHI
a. [Antonio] is ORDERED to deliver the
minor children Jerard Patrick and Andre
Lewis to the custody of their mother herein
appellant, Grace Grande who by virtue hereof
is hereby awarded the full or sole custody of
these minor children;
b. [Antonio] shall have visitation rights 28
at least twice a week, and may only take the
children out upon the written consent of
[Grande];
c. The parties are DIRECTED to give and
share in support of the minor children Jerard
Patrick and Andre Lewis in the amount of
P30,000.00 per month at the rate of 70% for
[Antonio] and 30% for [Grande]; and
d. The case is REMANDED to the Regional
Trial Court, Branch 8 of Aparri, Cagayan for
the sole purpose of determining the surname
to be chosen by the children Jerard Patrick
and Andre Lewis.
Rule 7 and Rule 8 of the Office of the Civil
Registrar General Administrative Order No. 1,
Series of 2004 are DISAPPROVED and hereby
declared NULL and VOID.
SO ORDERED.
Sereno, C.J., Carpio, Leonardo-de Castro,
Peralta, Bersamin, Del Castillo, Abad,
Villarama, Jr., Perez, Reyes, Perlas-Bernabe
and Leonen, JJ., concur.
Brion, J., is on leave.
Mendoza, J., took no part.
SECOND DIVISION
[G.R. No. 177728. July 31, 2009.]
JENIE SAN JUAN DELA CRUZ and minor
CHRISTIAN DELA CRUZ "AQUINO",
represented by JENIE SAN JUAN DELA
CRUZ, petitioners, vs. RONALD PAUL S.
GRACIA, in his capacity as City Civil
Registrar of Antipolo City, respondent.
DECISION
CARPIO MORALES, J p:
For several months in 2005, then 21-year old
petitioner Jenie San Juan dela Cruz (Jenie)
and then 19-year old Christian Dominique
Sto. Tomas Aquino (Dominique) lived together
as husband and wife without the benefit of
marriage. They resided in the house of
Dominique's parents Domingo B. Aquino and
Raquel Sto. Tomas Aquino at Pulang-lupa,
Dulumbayan, Teresa, Rizal. aHIDAE
On September 4, 2005, Dominique died. 1
After almost two months, or on November 2,
2005, Jenie, who continued to live with
Dominique's parents, gave birth to her herein
co-petitioner minor child Christian dela Cruz
"Aquino" at the Antipolo Doctors Hospital,
Antipolo City.
Jenie applied for registration of the child's
birth, using Dominique's surname Aquino,
with the Office of the City Civil Registrar,
Antipolo City, in support of which she
submitted the child's Certificate of Live Birth,
2 Affidavit to Use the Surname of the Father 3
(AUSF) which she had executed and signed,
and Affidavit of Acknowledgment executed by
Dominique's father Domingo Butch Aquino. 4
Both affidavits attested, inter alia, that during
the lifetime of Dominique, he had
continuously acknowledged his yet unborn
child, and that his paternity had never been
questioned. Jenie attached to the AUSF a
document entitled "AUTOBIOGRAPHY" which
Dominique, during his lifetime, wrote in his
own handwriting, the pertinent portions of
which read: HIcTDE
AQUINO, CHRISTIAN DOMINIQUE S.T.
AUTOBIOGRAPHY
I'M CHRISTIAN DOMINIQUE STO. TOMAS
AQUINO, 19 YEARS OF AGE TURNING 20
THIS COMING OCTOBER 31, 2005. 5 I
RESIDE AT PULANG-LUPA STREET BRGY.
DULUMBAYAN, TERESA, RIZAL. I AM THE
YOUNGEST IN OUR FAMILY. I HAVE ONE
BROTHER NAMED JOSEPH BUTCH STO.
TOMAS AQUINO. MY FATHER'S NAME IS
DOMINGO BUTCH AQUINO AND MY
MOTHER'S NAME IS RAQUEL STO. TOMAS
AQUINO. . . .
xxx xxx xxx
AS OF NOW I HAVE MY WIFE NAMED JENIE
DELA CRUZ. WE MET EACH OTHER IN OUR
HOMETOWN, TEREZA RIZAL. AT FIRST WE
BECAME GOOD FRIENDS, THEN WE FELL IN
LOVE WITH EACH OTHER, THEN WE
BECAME GOOD COUPLES. AND AS OF NOW
SHE IS PREGNANT AND FOR THAT WE LIVE
TOGETHER IN OUR HOUSE NOW. THAT'S
ALL. 6 (Emphasis and underscoring supplied)
By letter dated November 11, 2005, 7 the City
Civil Registrar of Antipolo City, Ronald Paul S.
Gracia (respondent), denied Jenie's
application for registration of the child's name
in this wise:
7. Rule 7 of Administrative Order No. 1,
Series of 2004 (Implementing Rules and
Regulations of Republic Act No. 9255 ["An Act
Allowing Illegitimate Children to Use the
Surname of their Father, Amending for the
Purpose, Article 176 of Executive Order No.
209, otherwise Known as the 'Family Code of
the Philippines'"]) provides that: TCADEc
Rule 7. Requirements for the Child to
Use the Surname of the Father
7.1 For Births Not Yet Registered
7.1.1 The illegitimate child shall use the
surname of the father if a public document is
executed by the father, either at the back of
the Certificate of Live Birth or in a separate
document.
7.1.2 If admission of paternity is made
through a private handwritten instrument, the
child shall use the surname of the father,
provided the registration is supported by the
following documents:
a. AUSF 8
b. Consent of the child, if 18 years old and
over at the time of the filing of the document.
c. Any two of the following documents
showing clearly the paternity between the
father and the child:
1. Employment records
2. SSS/GSIS records
3. Insurance
4. Certification of membership in any
organization
5. Statement of Assets and Liability
6. Income Tax Return (ITR)
In summary, the child cannot use the
surname of his father because he was born
out of wedlock and the father unfortunately
died prior to his birth and has no more
capacity to acknowledge his paternity to the
child (either through the back of Municipal
Form No. 102 Affidavit of
Acknowledgment/Admission of Paternity or
the Authority to Use the Surname of the
Father). (Underscoring supplied)
Jenie and the child promptly filed a complaint
9 for injunction/registration of name against
respondent before the Regional Trial Court of
Antipolo City, docketed as SCA Case No. 06-
539, which was raffled to Branch 73 thereof.
The complaint alleged that, inter alia, the
denial of registration of the child's name is a
violation of his right to use the surname of his
deceased father under Article 176 of the
Family Code, as amended by Republic Act
(R.A.) No. 9255, 10 which provides:
Article 176. Illegitimate children shall use the
surname and shall be under the parental
authority of their mother, and shall be entitled
to support in conformity with this Code.
However, illegitimate children may use the
surname of their father if their filiation has
been expressly recognized by the father
through the record of birth appearing in the
civil register, or when an admission in a
public document or private handwritten
instrument is made by the father. Provided,
the father has the right to institute an action
before the regular courts to prove non-filiation
during his lifetime. The legitime of each
illegitimate child shall consist of one-half of
the legitime of a legitimate child. (Emphasis
and underscoring supplied)
They maintained that the Autobiography
executed by Dominique constitutes an
admission of paternity in a "private
handwritten instrument" within the
contemplation of the above-quoted provision
of law.
For failure to file a responsive pleading or
answer despite service of summons,
respondent was declared in default.
Jenie thereupon presented evidence ex-parte.
She testified on the circumstances of her
common-law relationship with Dominique and
affirmed her declarations in her AUSF that
during his lifetime, he had acknowledged his
yet unborn child. 11 She offered Dominique's
handwritten Autobiography (Exhibit "A") as
her documentary evidence-in-chief. 12
Dominique's lone brother, Joseph Butch S.T.
Aquino, also testified, corroborating Jenie's
declarations. 13 IEHSDA
By Decision 14 of April 25, 2007, the trial
court dismissed the complaint "for lack of
cause of action" as the Autobiography was
unsigned, citing paragraph 2.2, Rule 2
(Definition of Terms) of Administrative Order
(A.O.) No. 1, Series of 2004 (the Rules and
Regulations Governing the Implementation of
R.A. 9255) which defines "private handwritten
document" through which a father may
acknowledge an illegitimate child as follows:
2.2 Private handwritten instrument an
instrument executed in the handwriting of the
father and duly signed by him where he
expressly recognizes paternity to the child.
(Underscoring supplied)
The trial court held that even if Dominique
was the author of the handwritten
Autobiography, the same does not contain any
express recognition of paternity.
Hence, this direct resort to the Court via
Petition for Review on Certiorari raising this
purely legal issue of:
WHETHER OR NOT THE UNSIGNED
HANDWRITTEN STATEMENT OF THE
DECEASED FATHER OF MINOR CHRISTIAN
DELA CRUZ CAN BE CONSIDERED AS A
RECOGNITION OF PATERNITY IN A "PRIVATE
HANDWRITTEN INSTRUMENT" WITHIN THE
CONTEMPLATION OF ARTICLE 176 OF THE
FAMILY CODE, AS AMENDED BY R.A. 9255,
WHICH ENTITLES THE SAID MINOR TO USE
HIS FATHER'S SURNAME. 15 (Underscoring
supplied)
Petitioners contend that Article 176 of the
Family Code, as amended, does not expressly
require that the private handwritten
instrument containing the putative father's
admission of paternity must be signed by him.
They add that the deceased's handwritten
Autobiography, though unsigned by him, is
sufficient, for the requirement in the above-
quoted paragraph 2.2 of the Administrative
Order that the admission/recognition must be
"duly signed" by the father is void as it
"unduly expanded" the earlier-quoted
provision of Article 176 of the Family Code. 16
Petitioners further contend that the trial court
erred in not finding that Dominique's
handwritten Autobiography contains a "clear
and unmistakable" recognition of the child's
paternity. 17
In its Comment, the Office of the Solicitor
General (OSG) submits that respondent's
position, as affirmed by the trial court, is in
consonance with the law and thus prays for
the dismissal of the petition. It further
submits that Dominique's Autobiography
"merely acknowledged Jenie's pregnancy but
not [his] paternity of the child she was
carrying in her womb". 18
Article 176 of the Family Code, as amended by
R.A. 9255, permits an illegitimate child to use
the surname of his/her father if the latter had
expressly recognized him/her as his offspring
through the record of birth appearing in the
civil register, or through an admission made
in a public or private handwritten instrument.
The recognition made in any of these
documents is, in itself, a consummated act of
acknowledgment of the child's paternity;
hence, no separate action for judicial approval
is necessary. 19
Article 176 of the Family Code, as amended,
does not, indeed, explicitly state that the
private handwritten instrument
acknowledging the child's paternity must be
signed by the putative father. This provision
must, however, be read in conjunction with
related provisions of the Family Code which
require that recognition by the father must
bear his signature, thus:
Art. 175. Illegitimate children may
establish their illegitimate filiation in the same
way and on the same evidence as legitimate
children. caHASI
xxx xxx xxx
Art. 172. The filiation of legitimate
children is established by any of the following:
(1) The record of birth appearing in the
civil register or a final judgment; or
(2) An admission of legitimate filiation in a
public document or a private handwritten
instrument and signed by the parent
concerned.
xxx xxx xxx
(Emphasis and underscoring supplied)
That a father who acknowledges paternity of a
child through a written instrument must affix
his signature thereon is clearly implied in
Article 176 of the Family Code. Paragraph 2.2,
Rule 2 of A.O. No. 1, Series of 2004, merely
articulated such requirement; it did not
"unduly expand" the import of Article 176 as
claimed by petitioners.
In the present case, however, special
circumstances exist to hold that Dominique's
Autobiography, though unsigned by him,
substantially satisfies the requirement of the
law.
First, Dominique died about two months prior
to the child's birth. Second, the relevant
matters in the Autobiography, unquestionably
handwritten by Dominique, correspond to the
facts culled from the testimonial evidence
Jenie proffered. 20 Third, Jenie's testimony is
corroborated by the Affidavit of
Acknowledgment of Dominique's father
Domingo Aquino and testimony of his brother
Joseph Butch Aquino whose hereditary rights
could be affected by the registration of the
questioned recognition of the child. These
circumstances indicating Dominique's
paternity of the child give life to his
statements in his Autobiography that "JENIE
DELA CRUZ" is "MY WIFE" as "WE FELL IN
LOVE WITH EACH OTHER" and "NOW SHE IS
PREGNANT AND FOR THAT WE LIVE
TOGETHER".
In Herrera v. Alba, 21 the Court summarized
the laws, rules, and jurisprudence on
establishing filiation, discoursing in relevant
part:
Laws, Rules, and Jurisprudence
Establishing Filiation
The relevant provisions of the Family Code
provide as follows:
ART. 175. Illegitimate children may
establish their illegitimate filiation in the same
way and on the same evidence as legitimate
children.
xxx xxx xxx
ART. 172. The filiation of legitimate
children is established by any of the following:
(1) The record of birth appearing in the
civil register or a final judgment; or
(2) An admission of legitimate filiation in a
public document or a private handwritten
instrument and signed by the parent
concerned.
In the absence of the foregoing evidence, the
legitimate filiation shall be proved by:
(1) The open and continuous possession of
the status of a legitimate child; or
(2) Any other means allowed by the Rules
of Court and special laws.
The Rules on Evidence include provisions on
pedigree. The relevant sections of Rule 130
provide: CcAESI
SEC. 39. Act or declaration about
pedigree. The act or declaration of a person
deceased, or unable to testify, in respect to the
pedigree of another person related to him by
birth or marriage, may be received in evidence
where it occurred before the controversy, and
the relationship between the two persons is
shown by evidence other than such act or
declaration. The word "pedigree" includes
relationship, family genealogy, birth, marriage,
death, the dates when and the places where
these facts occurred, and the names of the
relatives. It embraces also facts of family
history intimately connected with pedigree.
SEC. 40. Family reputation or tradition
regarding pedigree. The reputation or
tradition existing in a family previous to the
controversy, in respect to the pedigree of any
one of its members, may be received in
evidence if the witness testifying thereon be
also a member of the family, either by
consanguinity or affinity. Entries in family
bibles or other family books or charts,
engraving on rings, family portraits and the
like, may be received as evidence of pedigree.
This Court's rulings further specify what
incriminating acts are acceptable as evidence
to establish filiation. In Pe Lim v. CA, a case
petitioner often cites, we stated that the issue
of paternity still has to be resolved by such
conventional evidence as the relevant
incriminating verbal and written acts by the
putative father. Under Article 278 of the New
Civil Code, voluntary recognition by a parent
shall be made in the record of birth, a will, a
statement before a court of record, or in any
authentic writing. To be effective, the claim of
filiation must be made by the putative father
himself and the writing must be the writing of
the putative father. A notarial agreement to
support a child whose filiation is admitted by
the putative father was considered acceptable
evidence. Letters to the mother vowing to be a
good father to the child and pictures of the
putative father cuddling the child on various
occasions, together with the certificate of live
birth, proved filiation. However, a student
permanent record, a written consent to a
father's operation, or a marriage contract
where the putative father gave consent,
cannot be taken as authentic writing.
Standing alone, neither a certificate of
baptism nor family pictures are sufficient to
establish filiation. (Emphasis and
underscoring supplied.)
In the case at bar, there is no dispute that the
earlier quoted statements in Dominique's
Autobiography have been made and written by
him. Taken together with the other relevant
facts extant herein that Dominique, during
his lifetime, and Jenie were living together as
common-law spouses for several months in
2005 at his parents' house in Pulang-lupa,
Dulumbayan, Teresa, Rizal; she was pregnant
when Dominique died on September 4, 2005;
and about two months after his death, Jenie
gave birth to the child they sufficiently
establish that the child of Jenie is
Dominique's.
In view of the pronouncements herein made,
the Court sees it fit to adopt the following
rules respecting the requirement of affixing
the signature of the acknowledging parent in
any private handwritten instrument wherein
an admission of filiation of a legitimate or
illegitimate child is made:
1) Where the private handwritten
instrument is the lone piece of evidence
submitted to prove filiation, there should be
strict compliance with the requirement that
the same must be signed by the
acknowledging parent; and
2) Where the private handwritten
instrument is accompanied by other relevant
and competent evidence, it suffices that the
claim of filiation therein be shown to have
been made and handwritten by the
acknowledging parent as it is merely
corroborative of such other evidence.
Our laws instruct that the welfare of the child
shall be the "paramount consideration" in
resolving questions affecting him. 22 Article 3
(1) of the United Nations Convention on the
Rights of a Child of which the Philippines is a
signatory is similarly emphatic: ACTIcS
Article 3
1. In all actions concerning children,
whether undertaken by public or private social
welfare institutions, courts of law,
administrative authorities or legislative bodies,
the best interests of the child shall be a
primary consideration. 23 (Underscoring
supplied)
It is thus "(t)he policy of the Family Code to
liberalize the rule on the investigation of the
paternity and filiation of children, especially of
illegitimate children . . .". 24 Too, "(t)he State
as parens patriae affords special protection to
children from abuse, exploitation and other
conditions prejudicial to their development".
25
In the eyes of society, a child with an
unknown father bears the stigma of dishonor.
It is to petitioner minor child's best interests
to allow him to bear the surname of the now
deceased Dominique and enter it in his birth
certificate.
WHEREFORE, the petition is GRANTED. The
City Civil Registrar of Antipolo City is
DIRECTED to immediately enter the surname
of the late Christian Dominique Sto. Tomas
Aquino as the surname of petitioner minor
Christian dela Cruz in his Certificate of Live
Birth, and record the same in the Register of
Births.
SO ORDERED. AECDHS
Quisumbing, Chico-Nazario, Leonardo-de
Castro and Peralta, * JJ., concur.
THIRD DIVISION
[G.R. No. 123450. August 31, 2005.]
GERARDO B. CONCEPCION, petitioner, vs.
COURT OF APPEALS and MA. THERESA
ALMONTE, respondents.
Juan Orendain P. Buted for petitioner.
Stephen L. Monsanto for private respondent.
SYLLABUS
1. CIVIL LAW; FAMILY CODE; PATERNITY
AND FILIATION; LEGITIMATE CHILDREN;
THE LAW REQUIRES THAT EVERY
REASONABLE PRESUMPTION BE MADE IN
FAVOR OF LEGITIMACY. The status and
filiation of a child cannot be compromised.
Article 164 of the Family Code is clear. A child
who is conceived or born during the marriage
of his parents is legitimate. As a guaranty in
favor of the child and to protect his status of
legitimacy, Article 167 of the Family Code
provides: "Article 167. The child shall be
considered legitimate although the mother
may have declared against its legitimacy or
may have been sentenced as an adulteress."
The law requires that every reasonable
presumption be made in favor of legitimacy.
We explained the rationale of this rule in the
recent case of Cabatania v. Court of Appeals.
"The presumption of legitimacy does not only
flow out of a declaration in the statute but is
based on the broad principles of natural
justice and the supposed virtue of the mother.
It is grounded on the policy to protect the
innocent offspring from the odium of
illegitimacy." DTaSIc
2. ID.; ID.; ID.; ID.; IMPUGNING THE
LEGITIMACY OF A CHILD IS A STRICTLY
PERSONAL RIGHT OF THE HUSBAND OR, IN
EXCEPTIONAL CASES, HIS HEIRS; CASE AT
BAR. Gerardo invokes Article 166 (1) (b) of
the Family Code. He cannot. He has no
standing in law to dispute the status of Jose
Gerardo. Only Ma. Theresa's husband Mario
or, in a proper case, his heirs, who can
contest the legitimacy of the child Jose
Gerardo born to his wife. Impugning the
legitimacy of a child is a strictly personal right
of the husband or, in exceptional cases, his
heirs. Since the marriage of Gerardo and Ma.
Theresa was void from the very beginning, he
never became her husband and thus never
acquired any right to impugn the legitimacy of
her child.
3. ID.; ID.; ID.; ID.; THE PRESUMPTION
OF LEGITIMACY PROCEEDS FROM THE
SEXUAL UNION IN MARRIAGE,
PARTICULARLY DURING THE PERIOD OF
CONCEPTION. The presumption of
legitimacy proceeds from the sexual union in
marriage, particularly during the period of
conception. To overthrow this presumption on
the bases of Article 166 (1) (b) of the Family
Code, it must be shown beyond reasonable
doubt that there was no access that could
have enabled the husband to father the child.
Sexual intercourse is to be presumed where
personal access is not disproved, unless such
presumption is rebutted by evidence to the
contrary. The presumption is quasi-conclusive
and may be refuted only by the evidence of
physical impossibility of coitus between
husband and wife within the first 120 days of
the 300 days which immediately preceded the
birth of the child. To rebut the presumption,
the separation between the spouses must be
such as to make marital intimacy impossible.
This may take place, for instance, when they
reside in different countries or provinces and
they were never together during the period of
conception. Or, the husband was in prison
during the period of conception, unless it
appears that sexual union took place through
the violation of prison regulations. aEAIDH
4. ID.; ID.; ID.; ID.; AN ASSERTION BY
THE MOTHER AGAINST THE LEGITIMACY OF
HER CHILD CANNOT AFFECT THE
LEGITIMACY OF A CHILD BORN OR
CONCEIVED WITHIN A VALID MARRIAGE;
CASE AT BAR. An assertion by the mother
against the legitimacy of her child cannot
affect the legitimacy of a child born or
conceived within a valid marriage. . . . A
mother has no right to disavow a child
because maternity is never uncertain. Hence,
Ma. Theresa is not permitted by law to
question Jose Gerardo's legitimacy.
5. ID.; ID.; ID.; PROOF OF FILIATION;
NECESSARY ONLY WHEN THE LEGITIMACY
OF THE CHILD IS BEING QUESTIONED OR
WHEN THE STATUS OF A CHILD BORN
AFTER THREE HUNDRED DAYS FOLLOWING
THE TERMINATION OF MARRIAGE IS
SOUGHT TO BE ESTABLISHED. The
reliance of Gerardo on Jose Gerardo's birth
certificate is misplaced. It has no evidentiary
value in this case because it was not offered in
evidence before the trial court. The rule is that
the court shall not consider any evidence
which has not been formally offered.
Moreover, the law itself establishes the status
of a child from the moment of his birth.
Although a record of birth or birth certificate
may be used as primary evidence of the
filiation of a child, as the status of a child is
determined by the law itself, proof of filiation
is necessary only when the legitimacy of the
child is being questioned, or when the status
of a child born after 300 days following the
termination of marriage is sought to be
established. Here, the status of Jose Gerardo
as a legitimate child was not under attack as
it could not be contested collaterally and, even
then, only by the husband or, in extraordinary
cases, his heirs. Hence, the presentation of
proof of legitimacy in this case was improper
and uncalled for. CcTIAH
6. ID.; ID.; ID.; ID.; BETWEEN THE
CERTIFICATE OF BIRTH WHICH IS PRIMA
FACIE EVIDENCE OF THE CHILD'S
ILLEGITIMACY AND THE QUASI-
CONCLUSIVE PRESUMPTION OF LAW OF HIS
LEGITIMACY, THE LATTER SHALL PREVAIL;
CASE AT BAR. [A] record of birth is merely
prima facie evidence of the facts contained
therein. As prima facie evidence, the
statements in the record of birth may be
rebutted by more preponderant evidence. It is
not conclusive evidence with respect to the
truthfulness of the statements made therein
by the interested parties. Between the
certificate of birth which is prima facie
evidence of Jose Gerardo's illegitimacy and the
quasi-conclusive presumption of law
(rebuttable only by proof beyond reasonable
doubt) of his legitimacy the latter shall prevail.
Not only does it bear more weight, it is also
more conducive to the best interests of the
child and in consonance with the purpose of
the law.
7. ID.; ID.; ID.; LEGITIMATE AND
ILLEGITIMATE CHILDREN, DISTINGUISHED.
Law, reason and common sense dictate that
a legitimate status is more favorable to the
child. In the eyes of the law, the legitimate
child enjoys a preferred and superior status.
He is entitled to bear the surnames of both his
father and mother, full support and full
inheritance. On the other hand, an illegitimate
child is bound to use the surname and be
under the parental authority only of his
mother. He can claim support only from a
more limited group and his legitime is only
half of that of his legitimate counterpart.
Moreover (without unwittingly exacerbating
the discrimination against him), in the eyes of
society, a 'bastard' is usually regarded as
bearing a stigma or mark of dishonor.
Needless to state, the legitimacy presumptively
vested by law upon Jose Gerardo favors his
interest. ADHcTE
8. ID.; ID.; MARRIAGE; IN CASE OF
ANNULMENT OR DECLARATION OF
ABSOLUTE NULLITY OF MARRIAGE,
VISITATION RIGHTS IS GRANTED TO A
PARENT WHO IS DEPRIVED OF CUSTODY
OF HIS CHILDREN. In case of annulment
or declaration of absolute nullity of marriage,
Article 49 of the Family Code grants visitation
rights to a parent who is deprived of custody
of his children. Such visitation rights flow
from the natural right of both parent and child
to each other's company. There being no such
parent-child relationship between them,
Gerardo has no legally demandable right to
visit Jose Gerardo.
9. POLITICAL LAW; CONSTITUTIONAL
LAW DOCTRINE OF PARENS PATRIAE;
APPLIED IN CASE AT BAR. The State as
parens patriae affords special protection to
children from abuse, exploitation and other
conditions prejudicial to their development. It
is mandated to provide protection to those of
tender years. Through its law, the State
safeguards them from every one, even their
own parents, to the end that their eventual
development as responsible citizens and
members of society shall not be impeded,
distracted or impaired by family acrimony.
This is especially significant where, as in this
case, the issue concerns their filiation as it
strikes at their very identity and lineage.
aCcEHS
DECISION
CORONA, J p:
The child, by reason of his mental and
physical immaturity, needs special safeguard
and care, including appropriate legal
protection before as well as after birth. 1 In
case of assault on his rights by those who take
advantage of his innocence and vulnerability,
the law will rise in his defense with the single-
minded purpose of upholding only his best
interests. ETDaIC
This is the story of petitioner Gerardo B.
Concepcion and private respondent Ma.
Theresa Almonte, and a child named Jose
Gerardo. Gerardo and Ma. Theresa were
married on December 29, 1989. 2 After their
marriage, they lived with Ma. Theresa's
parents in Fairview, Quezon City. 3 Almost a
year later, on December 8, 1990, Ma. Theresa
gave birth to Jose Gerardo. 4
Gerardo and Ma. Theresa's relationship
turned out to be short-lived, however. On
December 19, 1991, Gerardo filed a petition to
have his marriage to Ma. Theresa annulled on
the ground of bigamy. 5 He alleged that nine
years before he married Ma. Theresa on
December 10, 1980, she had married one
Mario Gopiao, which marriage was never
annulled. 6 Gerardo also found out that Mario
was still alive and was residing in Loyola
Heights, Quezon City. 7
Ma. Theresa did not deny marrying Mario
when she was twenty years old. She, however,
averred that the marriage was a sham and
that she never lived with Mario at all. 8
The trial court ruled that Ma. Theresa's
marriage to Mario was valid and subsisting
when she married Gerardo and annulled her
marriage to the latter for being bigamous. It
declared Jose Gerardo to be an illegitimate
child as a result. The custody of the child was
awarded to Ma. Theresa while Gerardo was
granted visitation rights. 9
Ma. Theresa felt betrayed and humiliated
when Gerardo had their marriage annulled.
She held him responsible for the
'bastardization' of Gerardo. She moved for the
reconsideration of the above decision
"INSOFAR ONLY as that portion of the . . .
decision which grant(ed) to the petitioner so-
called 'visitation rights' . . . between the hours
of 8 in the morning to 12:00 p.m. of any
Sunday." 10 She argued that there was
nothing in the law granting "visitation rights
in favor of the putative father of an illegitimate
child." 11 She further maintained that Jose
Gerardo's surname should be changed from
Concepcion to Almonte, her maiden name,
following the rule that an illegitimate child
shall use the mother's surname.
Gerardo opposed the motion. He insisted on
his visitation rights and the retention of
'Concepcion' as Jose Gerardo's surname.
Applying the "best interest of the child"
principle, the trial court denied Ma. Theresa's
motion and made the following observations:
It is a pity that the parties herein seem to be
using their son to get at or to hurt the other,
something they should never do if they want
to assure the normal development and well-
being of the boy.
The Court allowed visitorial rights to the
father knowing that the minor needs a father,
especially as he is a boy, who must have a
father figure to recognize something that
the mother alone cannot give. Moreover, the
Court believes that the emotional and
psychological well-being of the boy would be
better served if he were allowed to maintain
relationships with his father.
There being no law which compels the Court
to act one way or the other on this matter, the
Court invokes the provision of Art. 8, PD 603
as amended, otherwise known as the Child
and Youth Welfare Code, to wit:
"In all questions regarding the care, custody,
education and property of the child, his
welfare shall be the paramount consideration."
WHEREFORE, the respondent's Motion for
Reconsideration has to be, as it is hereby
DENIED. 12
Ma. Theresa elevated the case to the Court of
Appeals, assigning as error the ruling of the
trial court granting visitation rights to
Gerardo. She likewise opposed the continued
use of Gerardo's surname (Concepcion)
despite the fact that Jose Gerardo had already
been declared illegitimate and should
therefore use her surname (Almonte). The
appellate court denied the petition and
affirmed in toto the decision of the trial court.
13
On the issue raised by Ma. Theresa that there
was nothing in the law that granted a putative
father visitation rights over his illegitimate
child, the appellate court affirmed the "best
interest of the child" policy invoked by the
court a quo. It ruled that "[a]t bottom, it (was)
the child's welfare and not the convenience of
the parents which (was) the primary
consideration in granting visitation rights a
few hours once a week." 14
The appellate court likewise held that an
illegitimate child cannot use the mother's
surname motu proprio. The child, represented
by the mother, should file a separate
proceeding for a change of name under Rule
103 of the Rules of Court to effect the
correction in the civil registry. 15
Undaunted, Ma. Theresa moved for the
reconsideration of the adverse decision of the
appellate court. She also filed a motion to set
the case for oral arguments so that she could
better ventilate the issues involved in the
controversy. EHSAaD
After hearing the oral arguments of the
respective counsels of the parties, the
appellate court resolved the motion for
reconsideration. It reversed its earlier ruling
and held that Jose Gerardo was not the son of
Ma. Theresa by Gerardo but by Mario during
her first marriage:
It is, therefore, undeniable established by
the evidence in this case that the appellant
[Ma. Theresa] was married to Mario Gopiao,
and that she had never entered into a lawful
marriage with the appellee [Gerardo] since the
so-called "marriage" with the latter was void
ab initio. It was [Gerardo] himself who had
established these facts. In other words, [Ma.
Theresa] was legitimately married to Mario
Gopiao when the child Jose Gerardo was born
on December 8, 1990. Therefore, the child
Jose Gerardo under the law is the
legitimate child of the legal and subsisting
marriage between [Ma. Theresa] and Mario
Gopiao; he cannot be deemed to be the
illegitimate child of the void and non-existent
'marriage' between [Ma. Theresa] and
[Gerardo], but is said by the law to be the
child of the legitimate and existing marriage
between [Ma. Theresa] and Mario Gopiao (Art.
164, Family Code). Consequently, [she] is right
in firmly saying that [Gerardo] can claim
neither custody nor visitorial rights over the
child Jose Gerardo. Further, [Gerardo] cannot
impose his name upon the child. Not only is it
without legal basis (even supposing the child
to be his illegitimate child [Art. 146, The
Family Code]); it would tend to destroy the
existing marriage between [Ma. Theresa] and
Gopiao, would prevent any possible
rapprochement between the married couple,
and would mean a judicial seal upon an
illegitimate relationship. 16
The appellate court brushed aside the
common admission of Gerardo and Ma.
Theresa that Jose Gerardo was their son. It
gave little weight to Jose Gerardo's birth
certificate showing that he was born a little
less than a year after Gerardo and Ma.
Theresa were married:
We are not unaware of the movant's argument
that various evidence exist that appellee and
the appellant have judicially admitted that the
minor is their natural child. But, in the same
vein, We cannot overlook the fact that Article
167 of the Family Code mandates:
"The child shall be considered legitimate
although the mother may have declared
against its legitimacy or may have been
sentenced as an adulteress." (underscoring
ours)
Thus, implicit from the above provision is the
fact that a minor cannot be deprived of
his/her legitimate status on the bare
declaration of the mother and/or even much
less, the supposed father. In fine, the law and
only the law determines who are the legitimate
or illegitimate children for one's legitimacy or
illegitimacy cannot ever be compromised. Not
even the birth certificate of the minor can
change his status for the information
contained therein are merely supplied by the
mother and/or the supposed father. It should
be what the law says and not what a parent
says it is. 17 (Emphasis supplied)
Shocked and stunned, Gerardo moved for a
reconsideration of the above decision but the
same was denied. 18 Hence, this appeal.
The status and filiation of a child cannot be
compromised. 19 Article 164 of the Family
Code is clear. A child who is conceived or born
during the marriage of his parents is
legitimate. 20
As a guaranty in favor of the child 21 and to
protect his status of legitimacy, Article 167 of
the Family Code provides:
Article 167. The child shall be considered
legitimate although the mother may have
declared against its legitimacy or may have
been sentenced as an adulteress.
The law requires that every reasonable
presumption be made in favor of legitimacy.
22 We explained the rationale of this rule in
the recent case of Cabatania v. Court of
Appeals 23 :
The presumption of legitimacy does not only
flow out of a declaration in the statute but is
based on the broad principles of natural
justice and the supposed virtue of the mother.
It is grounded on the policy to protect the
innocent offspring from the odium of
illegitimacy.
Gerardo invokes Article 166 (1)(b) 24 of the
Family Code. He cannot. He has no standing
in law to dispute the status of Jose Gerardo.
Only Ma. Theresa's husband Mario or, in a
proper case, 25 his heirs, who can contest the
legitimacy of the child Jose Gerardo born to
his wife. 26 Impugning the legitimacy of a
child is a strictly personal right of the
husband or, in exceptional cases, his heirs. 27
Since the marriage of Gerardo and Ma.
Theresa was void from the very beginning, he
never became her husband and thus never
acquired any right to impugn the legitimacy of
her child. DHAcET
The presumption of legitimacy proceeds from
the sexual union in marriage, particularly
during the period of conception. 28 To
overthrow this presumption on the basis of
Article 166 (1)(b) of the Family Code, it must
be shown beyond reasonable doubt that there
was no access that could have enabled the
husband to father the child. 29 Sexual
intercourse is to be presumed where personal
access is not disproved, unless such
presumption is rebutted by evidence to the
contrary. 30
The presumption is quasi-conclusive and may
be refuted only by the evidence of physical
impossibility of coitus between husband and
wife within the first 120 days of the 300 days
which immediately preceded the birth of the
child. 31
To rebut the presumption, the separation
between the spouses must be such as to make
marital intimacy impossible. 32 This may take
place, for instance, when they reside in
different countries or provinces and they were
never together during the period of
conception. 33 Or, the husband was in prison
during the period of conception, unless it
appears that sexual union took place through
the violation of prison regulations. 34
Here, during the period that Gerardo and Ma.
Theresa were living together in Fairview,
Quezon City, Mario was living in Loyola
Heights which is also in Quezon City. Fairview
and Loyola Heights are only a scant four
kilometers apart.
Not only did both Ma. Theresa and Mario
reside in the same city but also that no
evidence at all was presented to disprove
personal access between them. Considering
these circumstances, the separation between
Ma. Theresa and her lawful husband, Mario,
was certainly not such as to make it
physically impossible for them to engage in
the marital act.
Sexual union between spouses is assumed.
Evidence sufficient to defeat the assumption
should be presented by him who asserts the
contrary. There is no such evidence here.
Thus, the presumption of legitimacy in favor of
Jose Gerardo, as the issue of the marriage
between Ma. Theresa and Mario, stands.
Gerardo relies on Ma. Theresa's statement in
her answer 35 to the petition for annulment of
marriage 36 that she never lived with Mario.
He claims this was an admission that there
was never any sexual relation between her
and Mario, an admission that was binding on
her.
Gerardo's argument is without merit.
First, the import of Ma. Theresa's statement is
that Jose Gerardo is not her legitimate son
with Mario but her illegitimate son with
Gerardo. This declaration an avowal by the
mother that her child is illegitimate is the
very declaration that is proscribed by Article
167 of the Family Code.
The language of the law is unmistakable. An
assertion by the mother against the legitimacy
of her child cannot affect the legitimacy of a
child born or conceived within a valid
marriage.
Second, even assuming the truth of her
statement, it does not mean that there was
never an instance where Ma. Theresa could
have been together with Mario or that there
occurred absolutely no intercourse between
them. All she said was that she never lived
with Mario. She never claimed that nothing
ever happened between them.
Telling is the fact that both of them were living
in Quezon City during the time material to
Jose Gerardo's conception and birth. Far from
foreclosing the possibility of marital intimacy,
their proximity to each other only serves to
reinforce such possibility. Thus, the
impossibility of physical access was never
established beyond reasonable doubt. cda
Third, to give credence to Ma. Theresa's
statement is to allow her to arrogate unto
herself a right exclusively lodged in the
husband, or in a proper case, his heirs. 37 A
mother has no right to disavow a child
because maternity is never uncertain. 38
Hence, Ma. Theresa is not permitted by law to
question Jose Gerardo's legitimacy.
Finally, for reasons of public decency and
morality, a married woman cannot say that
she had no intercourse with her husband and
that her offspring is illegitimate. 39 The
proscription is in consonance with the
presumption in favor of family solidarity. It
also promotes the intention of the law to lean
toward the legitimacy of children. 40
Gerardo's insistence that the filiation of Jose
Gerardo was never an issue both in the trial
court and in the appellate court does not hold
water. The fact that both Ma. Theresa and
Gerardo admitted and agreed that Jose
Gerardo was born to them was immaterial.
That was, in effect, an agreement that the
child was illegitimate. If the Court were to
validate that stipulation, then it would be
tantamount to allowing the mother to make a
declaration against the legitimacy of her child
and consenting to the denial of filiation of the
child by persons other than her husband.
These are the very acts from which the law
seeks to shield the child.
Public policy demands that there be no
compromise on the status and filiation of a
child. 41 Otherwise, the child will be at the
mercy of those who may be so minded to
exploit his defenselessness.
The reliance of Gerardo on Jose Gerardo's
birth certificate is misplaced. It has no
evidentiary value in this case because it was
not offered in evidence before the trial court.
The rule is that the court shall not consider
any evidence which has not been formally
offered. 42
Moreover, the law itself establishes the status
of a child from the moment of his birth. 43
Although a record of birth or birth certificate
may be used as primary evidence of the
filiation of a child, 44 as the status of a child
is determined by the law itself, proof of
filiation is necessary only when the legitimacy
of the child is being questioned, or when the
status of a child born after 300 days following
the termination of marriage is sought to be
established. 45
Here, the status of Jose Gerardo as a
legitimate child was not under attack as it
could not be contested collaterally and, even
then, only by the husband or, in extraordinary
cases, his heirs. Hence, the presentation of
proof of legitimacy in this case was improper
and uncalled for. ISDCHA
In addition, a record of birth is merely prima
facie evidence of the facts contained therein.
46 As prima facie evidence, the statements in
the record of birth may be rebutted by more
preponderant evidence. It is not conclusive
evidence with respect to the truthfulness of
the statements made therein by the interested
parties. 47 Between the certificate of birth
which is prima facie evidence of Jose
Gerardo's illegitimacy and the quasi-
conclusive presumption of law (rebuttable only
by proof beyond reasonable doubt) of his
legitimacy, the latter shall prevail. Not only
does it bear more weight, it is also more
conducive to the best interests of the child
and in consonance with the purpose of the
law.
It perplexes us why both Gerardo and Ma.
Theresa would doggedly press for Jose
Gerardo's illegitimacy while claiming that they
both had the child's interests at heart. The
law, reason and common sense dictate that a
legitimate status is more favorable to the
child. In the eyes of the law, the legitimate
child enjoys a preferred and superior status.
He is entitled to bear the surnames of both his
father and mother, full support and full
inheritance. 48 On the other hand, an
illegitimate child is bound to use the surname
and be under the parental authority only of
his mother. He can claim support only from a
more limited group and his legitime is only
half of that of his legitimate counterpart. 49
Moreover (without unwittingly exacerbating
the discrimination against him), in the eyes of
society, a 'bastard' is usually regarded as
bearing a stigma or mark of dishonor.
Needless to state, the legitimacy presumptively
vested by law upon Jose Gerardo favors his
interest.
It is unfortunate that Jose Gerardo was used
as a pawn in the bitter squabble between the
very persons who were passionately declaring
their concern for him. The paradox was that
he was made to suffer supposedly for his own
sake. This madness should end.
This case has been pending for a very long
time already. What is specially tragic is that
an innocent child is involved. Jose Gerardo
was barely a year old when these proceedings
began. He is now almost fifteen and all this
time he has been a victim of incessant
bickering. The law now comes to his aid to
write finis to the controversy which has
unfairly hounded him since his infancy.
DcCEHI
Having only his best interests in mind, we
uphold the presumption of his legitimacy.
As a legitimate child, Jose Gerardo shall have
the right to bear the surnames of his father
Mario and mother Ma. Theresa, in conformity
with the provisions of the Civil Code on
surnames. 50 A person's surname or family
name identifies the family to which he belongs
and is passed on from parent to child. 51
Hence, Gerardo cannot impose his surname
on Jose Gerardo who is, in the eyes of the law,
not related to him in any way.
The matter of changing Jose Gerardo's name
and effecting the corrections of the entries in
the civil register regarding his paternity and
filiation should be threshed out in a separate
proceeding.
In case of annulment or declaration of
absolute nullity of marriage, Article 49 of the
Family Code grants visitation rights to a
parent who is deprived of custody of his
children. Such visitation rights flow from the
natural right of both parent and child to each
other's company. There being no such parent-
child relationship between them, Gerardo has
no legally demandable right to visit Jose
Gerardo.
Our laws seek to promote the welfare of the
child. Article 8 of PD 603, otherwise known as
the Child and Youth Welfare Code, is clear
and unequivocal:
Article 8. Child's Welfare Paramount. In
all questions regarding the care, custody,
education and property of the child, his
welfare shall be the paramount consideration.
Article 3 (1) of the United Nations Convention
on the Rights of a Child of which the
Philippines is a signatory is similarly
emphatic:
Article 3
1. In all actions concerning children,
whether undertaken by public or private social
welfare institutions, courts of law,
administrative authorities or legislative bodies,
the best interests of the child shall be a
primary consideration.
The State as parens patriae affords special
protection to children from abuse, exploitation
and other conditions prejudicial to their
development. It is mandated to provide
protection to those of tender years. 52
Through its laws, the State safeguards them
from every one, even their own parents, to the
end that their eventual development as
responsible citizens and members of society
shall not be impeded, distracted or impaired
by family acrimony. This is especially
significant where, as in this case, the issue
concerns their filiation as it strikes at their
very identity and lineage. ADEaHT
WHEREFORE, the petition is hereby DENIED.
The September 14, 1995 and January 10,
1996 resolutions of the Court of Appeals in
CA-G.R. CV No. 40651 are hereby AFFIRMED.
Costs against petitioner.
SO ORDERED.
Panganiban, Sandoval-Gutierrez and Garcia,
JJ., concur.
Carpio-Morales, J., took no part.
SECOND DIVISION
[G.R. No. 182367. December 15, 2010.]
CHERRYL B. DOLINA, petitioner, vs.
GLENN D. VALLECERA, respondent.
DECISION
ABAD, J p:
This case is about a mother's claim for
temporary support of an unacknowledged
child, which she sought in an action for the
issuance of a temporary protection order that
she brought against the supposed father.
aEcSIH
The Facts and the Case
In February 2008 petitioner Cherryl B. Dolina
filed a petition with prayer for the issuance of
a temporary protection order against
respondent Glenn D. Vallecera before the
Regional Trial Court (RTC) of Tacloban City in
P.O. 2008-02-07 1 for alleged woman and
child abuse under Republic Act (R.A.) 9262. 2
In filling out the blanks in the pro-forma
complaint, Dolina added a handwritten prayer
for financial support 3 from Vallecera for their
supposed child. She based her prayer on the
latter's Certificate of Live Birth which listed
Vallecera as the child's father. The petition
also asked the RTC to order Philippine
Airlines, Vallecera's employer, to withhold
from his pay such amount of support as the
RTC may deem appropriate.
Vallecera opposed the petition. He claimed
that Dolina's petition was essentially one for
financial support rather than for protection
against woman and child abuses; that he was
not the child's father; that the signature
appearing on the child's Certificate of Live
Birth is not his; that the petition is a
harassment suit intended to force him to
acknowledge the child as his and give it
financial support; and that Vallecera has
never lived nor has been living with Dolina,
rendering unnecessary the issuance of a
protection order against him.
On March 13, 2008 4 the RTC dismissed the
petition after hearing since no prior judgment
exists establishing the filiation of Dolina's son
and granting him the right to support as basis
for an order to compel the giving of such
support. Dolina filed a motion for
reconsideration but the RTC denied it in its
April 4, 2008 Order, 5 with an admonition
that she first file a petition for compulsory
recognition of her child as a prerequisite for
support. Unsatisfied, Dolina filed the present
petition for review directly with this Court.
STIcEA
The Issue Presented
The sole issue presented in this case is
whether or not the RTC correctly dismissed
Dolina's action for temporary protection and
denied her application for temporary support
for her child.
The Court's Ruling
Dolina evidently filed the wrong action to
obtain support for her child. The object of R.A.
9262 under which she filed the case is the
protection and safety of women and children
who are victims of abuse or violence. 6
Although the issuance of a protection order
against the respondent in the case can include
the grant of legal support for the wife and the
child, this assumes that both are entitled to a
protection order and to legal support.
Dolina of course alleged that Vallecera had
been abusing her and her child. But it became
apparent to the RTC upon hearing that this
was not the case since, contrary to her claim,
neither she nor her child ever lived with
Vallecera. As it turned out, the true object of
her action was to get financial support from
Vallecera for her child, her claim being that he
is the father. He of course vigorously denied
this.
To be entitled to legal support, petitioner
must, in proper action, first establish the
filiation of the child, if the same is not
admitted or acknowledged. Since Dolina's
demand for support for her son is based on
her claim that he is Vallecera's illegitimate
child, the latter is not entitled to such support
if he had not acknowledged him, until Dolina
shall have proved his relation to him. 7 The
child's remedy is to file through her mother a
judicial action against Vallecera for
compulsory recognition. 8 If filiation is beyond
question, support follows as matter of
obligation. 9 In short, illegitimate children are
entitled to support and successional rights
but their filiation must be duly proved. 10
AaHcIT
Dolina's remedy is to file for the benefit of her
child an action against Vallecera for
compulsory recognition in order to establish
filiation and then demand support.
Alternatively, she may directly file an action
for support, where the issue of compulsory
recognition may be integrated and resolved.
11
It must be observed, however, that the RTC
should not have dismissed the entire case
based solely on the lack of any judicial
declaration of filiation between Vallecera and
Dolina's child since the main issue remains to
be the alleged violence committed by Vallecera
against Dolina and her child and whether they
are entitled to protection. But of course, this
matter is already water under the bridge since
Dolina failed to raise this error on review. This
omission lends credence to the conclusion of
the RTC that the real purpose of the petition is
to obtain support from Vallecera.
While the Court is mindful of the best
interests of the child in cases involving
paternity and filiation, it is just as aware of
the disturbance that unfounded paternity
suits cause to the privacy and peace of the
putative father's legitimate family. 12
Vallecera disowns Dolina's child and denies
having a hand in the preparation and signing
of its certificate of birth. This issue has to be
resolved in an appropriate case.
ACCORDINGLY, the Court DENIES the
petition and AFFIRMS the Regional Trial Court
of Tacloban City's Order dated March 13,
2008 that dismissed petitioner Cherryl B.
Dolina's action in P.O. 2008-02-07, and Order
dated April 4, 2008, denying her motion for
reconsideration dated March 28, 2008.
aCcSDT
SO ORDERED.
Carpio, Nachura, Peralta and Mendoza, JJ.,
concur.
SECOND DIVISION
[G.R. No. 159785. April 27, 2007.]
TEOFISTO I. VERCELES, petitioner, vs.
MARIA CLARISSA POSADA, in her own
behalf, and as mother of minor VERNA
AIZA POSADA, CONSTANTINO POSADA and
FRANCISCA POSADA, respondents.
DECISION
QUISUMBING, J p:
This petition for review seeks the reversal of
the Decision 1 dated May 30, 2003 and the
Resolution 2 dated August 27, 2003 of the
Court of Appeals in CA-G.R. CV No. 50557.
The appellate court had affirmed with
modification the Judgment 3 dated January 4,
1995 of the Regional Trial Court (RTC) of
Virac, Catanduanes, Branch 42, in Civil Case
No. 1401. The RTC held petitioner liable to
pay monthly support to Verna Aiza Posada
since her birth on September 23, 1987 as well
as moral and exemplary damages, attorney's
fees and costs of suit. AHaDSI
The facts in this case as found by the lower
courts are as follows:
Respondent Maria Clarissa Posada (Clarissa),
a young lass from the barrio of Pandan,
Catanduanes, sometime in 1986 met a close
family friend, petitioner Teofisto I. Verceles,
mayor of Pandan. He then called on the
Posadas and at the end of the visit, offered
Clarissa a job.
Clarissa accepted petitioner's offer and worked
as a casual employee in the mayor's office
starting on September 1, 1986. From
November 10 to 15 in 1986, with companions
Aster de Quiros, Pat del Valle, Jaime and
Jocelyn Vargas, she accompanied petitioner to
Legaspi City to attend a seminar on town
planning. They stayed at the Mayon Hotel.
acHETI
On November 11, 1986, at around 11:00 a.m.,
petitioner fetched Clarissa from "My Brother's
Place" where the seminar was being held.
Clarissa avers that he told her that they would
have lunch at Mayon Hotel with their
companions who had gone ahead. When they
reached the place her companions were
nowhere. After petitioner ordered food, he
started making amorous advances on her. She
panicked, ran and closeted herself inside a
comfort room where she stayed until someone
knocked. She said she hurriedly exited and
left the hotel. Afraid of the mayor, she kept the
incident to herself. She went on as casual
employee. One of her tasks was following-up
barangay road and maintenance projects.
On December 22, 1986, on orders of
petitioner, she went to Virac, Catanduanes, to
follow up funds for barangay projects. At
around 11:00 a.m. the same day, she went to
Catanduanes Hotel on instructions of
petitioner who asked to be briefed on the
progress of her mission. They met at the lobby
and he led her upstairs because he said he
wanted the briefing done at the restaurant at
the upper floor. DCSTAH
Instead, however, petitioner opened a hotel
room door, led her in, and suddenly embraced
her, as he told her that he was unhappy with
his wife and would "divorce" her anytime. He
also claimed he could appoint her as a
municipal development coordinator. She
succumbed to his advances. But again she
kept the incident to herself.
Sometime in January 1987, when she missed
her menstruation, she said she wrote
petitioner that she feared she was pregnant.
In another letter in February 1987, she told
him she was pregnant. In a handwritten letter
dated February 4, 1987, he replied: EcDTIH
My darling Chris,
Should you become pregnant even
unexpectedly, I should have no regret,
because I love you and you love me.
Let us rejoice a common responsibility you
and I shall take care of it and let him/her see
the light of this beautiful world. CAcIES
We know what to do to protect our honor and
integrity.
Just relax and be happy, if true.
With all my love,
Ninoy
2/4/87 4
Clarissa explained petitioner used an alias
"Ninoy" and addressed her as "Chris,"
probably because of their twenty-five (25)-year
age gap. In court, she identified petitioner's
penmanship which she claims she was
familiar with as an employee in his office.
HCITDc
Clarissa presented three other handwritten
letters 5 sent to her by petitioner, two of which
were in his letterhead as mayor of Pandan.
She also presented the pictures 6 petitioner
gave her of his youth and as a public servant,
all bearing his handwritten notations at the
back.
Clarissa avers that on March 3, 1987,
petitioner, aware of her pregnancy, handed
her a letter and P2,000 pocket money to go to
Manila and to tell her parents that she would
enroll in a CPA review course or look for a job.
In June 1987, petitioner went to see her in
Manila and gave her another P2,000 for her
delivery. When her parents learned of her
pregnancy, sometime in July, her father
fetched her and brought her back to Pandan.
On September 23, 1987, 7 she gave birth to a
baby girl, Verna Aiza Posada. DCASEc
Clarissa's mother, Francisca, corroborated
Clarissa's story. She said they learned of their
daughter's pregnancy through her husband's
cousin. She added that she felt betrayed by
petitioner and shamed by her daughter's
pregnancy.
The Posadas filed a Complaint for Damages
coupled with Support Pendente Lite before the
RTC, Virac, Catanduanes against petitioner on
October 23, 1987. 8
On January 4, 1995, the trial court issued a
judgment in their favor, the dispositive portion
of which reads as follows:
WHEREFORE, in view of the foregoing,
judgment is hereby rendered in favor of the
[respondents] and against the [petitioner] and
ordering the latter: EaHIDC
1. to pay a monthly support of P2,000.00
to Verna Aiza Posada since her birth on
September 23, 1987 as he was proved to be
the natural father of the above-named minor
as shown by the exhibits and testimonies of
the [respondents];
2. to pay the amount of P30,000.00 as
moral damages;
3. to pay the amount of P30,000.00 as
exemplary damages;
4. to pay the sum of P10,000.00 as
attorney's fees; and
5. to pay the costs of the suit. AHacIS
SO ORDERED. 9
Verceles appealed to the Court of Appeals
which affirmed the judgment with
modification, specifying the party to whom the
damages was awarded. The dispositive portion
of the Court of Appeals' decision reads:
WHEREFORE, the appealed judgment is
AFFIRMED with modification by ordering
[petitioner] Teofisto I. Verceles:
1. To pay a monthly support of P2,000.00
to Verna Aiza Posada from her birth on
September 23, 1987. ASaTHc
2. To pay [respondent] Maria Clarissa
Posada the sum of P15,000.00 as moral
damages and [P]15,000.00 as exemplary
damages.
3. To pay [respondents] spouses
Constantino and Francisca Posada the sum of
P15,000.00 as moral damages and P15,000.00
as exemplary damages. aSTHDc
4. To pay each of the said three
[respondents] P10,000.00 as attorney's fees;
and
5. To pay the costs of suit.
SO ORDERED. 10
Hence, this petition.
Petitioner now presents the following issues
for resolution:
I.
WAS THERE ANY EVIDENCE ON RECORD TO
PROVE THAT APPELLANT VERCELES WAS
THE FATHER OF THE CHILD? cEaDTA
II.
WOULD THIS ACTION FOR DAMAGES
PROSPER?
III.
WOULD THE RTC COURT HAVE ACQUIRED
JURISDICTION OVER THIS ISSUE OF
APPELLANT'S PATERNITY OF THE CHILD,
WHICH IS MADE COLLATERAL TO THIS
ACTION FOR DAMAGES? 11 EcHAaS
In sum, the pertinent issues in this case are:
(1) whether or not paternity and filiation can
be resolved in an action for damages with
support pendente lite; (2) whether or not the
filiation of Verna Aiza Posada as the
illegitimate child of petitioner was proven; and
(3) whether or not respondents are entitled to
damages. IHCSTE
In his Memorandum, petitioner asserts that
the fact of paternity and filiation of Verna Aiza
Posada has not been duly established or
proved in the proceedings; that the award for
damages and attorney's fees has no basis; and
that the issue of filiation should be resolved in
a direct and not a collateral action.
Petitioner argues he never signed the birth
certificate of Verna Aiza Posada as father and
that it was respondent Clarissa who placed
his name on the birth certificate as father
without his consent. He further contends the
alleged love letters he sent to Clarissa are not
admissions of paternity but mere expressions
of concern and advice. 12 As to the award for
damages, petitioner argues Clarissa could not
have suffered moral damages because she was
in pari delicto, being a willing participant in
the "consensual carnal act" between them. 13
In support of his argument that the issue on
filiation should have been resolved in a
separate action, petitioner cited the case of
Rosales v. Castillo Rosales 14 where we held
that the legitimacy of a child which is
controversial can only be resolved in a direct
action. 15 cdasiajur
On the other hand, respondents in their
Memorandum maintain that the Court of
Appeals committed no error in its decision.
They reiterate that Clarissa's clear narration of
the circumstances on "how she was
deflowered" by petitioner, the love letters and
pictures given by petitioner to Clarissa, the
corroborating testimony of Clarissa's mother,
the fact that petitioner proffered no
countervailing evidence, are preponderant
evidence of paternity. They cited the case of
De Jesus v. Syquia 16 where we held that a
conceived child can be acknowledged because
this is an act favorable to the child. 17 They
also argue that damages should be awarded
because petitioner inveigled Clarissa to
succumb to his sexual advances. 18
Could paternity and filiation be resolved in an
action for damages? On this score, we find
petitioner's stance unmeritorious. The caption
is not determinative of the nature of a
pleading. In a string of cases we made the
following rulings. It is not the caption but the
facts alleged which give meaning to a
pleading. Courts are called upon to pierce the
form and go into the substance thereof. 19 In
determining the nature of an action, it is not
the caption, but the averments in the petition
and the character of the relief sought, that are
controlling. 20 CcaDHT
A perusal of the Complaint before the RTC
shows that although its caption states
"Damages coupled with Support Pendente
Lite," Clarissa's averments therein, her
meeting with petitioner, his offer of a job, his
amorous advances, her seduction, their trysts,
her pregnancy, birth of her child, his letters,
her demand for support for her child, all
clearly establish a case for recognition of
paternity. We have held that the due
recognition of an illegitimate child in a record
of birth, a will, a statement before a court of
record, or in any authentic writing is, in itself,
a consummated act of acknowledgement of
the child, and no further court action is
required. In fact, any authentic writing is
treated not just a ground for compulsory
recognition; it is in itself a voluntary
recognition that does not require a separate
action for judicial approval. 21
The letters of petitioner marked as Exhibits
"A" to "D" are declarations that lead nowhere
but to the conclusion that he sired Verna Aiza.
Although petitioner used an alias in these
letters, the similarity of the penmanship in
these letters vis the annotation at the back of
petitioner's fading photograph as a youth is
unmistakable. Even an inexperienced eye will
come to the conclusion that they were all
written by one and the same person,
petitioner, as found by the courts a quo.
aSIDCT
We also note that in his Memorandum,
petitioner admitted his affair with Clarissa,
the exchange of love letters between them, and
his giving her money during her pregnancy.
22
Articles 172 and 175 of the Family Code are
the rules for establishing filiation. They are as
follows:
Art. 172. The filiation of legitimate
children is established by any of the following:
DIESaC
(1) The record of birth appearing in the
civil register or a final judgment; or
(2) An admission of legitimate filiation in a
public document or a private handwritten
instrument and signed by the parent
concerned. cEaDTA
In the absence of the foregoing evidence, the
legitimate filiation shall be proved by:
(1) The open and continuous possession of
the status of a legitimate child; or
(2) Any other means allowed by the Rules
of Court and special laws.
Art. 175. Illegitimate children may
establish their illegitimate filiation in the same
way and on the same evidence as legitimate
children. ISCaDH
The action must be brought within the same
period specified in Article 173, except when
the action is based on the second paragraph
of Article 172, in which case the action may be
brought during the lifetime of the alleged
parent.
We, however, affirm the grant of attorney's
fees in consonance with Article 2208 (2) 25
and (11) 26 of the New Civil Code.
WHEREFORE, the assailed Decision dated
May 30, 2003 and the Resolution dated
August 27, 2003 of the Court of Appeals in
CA-G.R. CV No. 50557 are AFFIRMED, with
the MODIFICATION that the award of moral
damages and exemplary damages be
DELETED. cdasiajur
SO ORDERED.
Carpio, Carpio-Morales, Tinga and Velasco,
Jr., JJ., concur.

The letters, one of which is quoted above, are

private handwritten instruments of petitioner
which establish Verna Aiza's filiation under
Article 172 (2) of the Family Code. In addition,
the array of evidence presented by
respondents, the dates, letters, pictures and
testimonies, to us, are convincing, and
irrefutable evidence that Verna Aiza is, indeed,
petitioner's illegitimate child. cHDaEI

Petitioner not only failed to rebut the evidence

presented, he himself presented no evidence of
his own. His bare denials are telling. Well-
settled is the rule that denials, if
unsubstantiated by clear and convincing
evidence, are negative and self-serving which
merit no weight in law and cannot be given
greater evidentiary value over the testimony of
credible witnesses who testify on affirmative
matters. 23

We, however, cannot rule that respondents are

entitled to damages. Article 2219 24 of the
Civil Code which states moral damages may
be recovered in cases of seduction is
inapplicable in this case because Clarissa was
already an adult at the time she had an affair
with petitioner. CSTcEI

Neither can her parents be entitled to

damages. Besides, there is nothing in law or
jurisprudence that entitles the parents of a
consenting adult who begets a love child to
damages. Respondents Constantino and
Francisca Posada have not cited any law or
jurisprudence to justify awarding damages to
them.