LUPO ALMODIEL ATIENZA, complainant, vs. JUDGE FRANCISCO F.

BRILLANTES, JR., Metropolitan Trial Court, Branch 20, Manila, Respondent also denies having been married to Ongkiko, although he
respondent. admits having five children with her. He alleges that while he and
Ongkiko went through a marriage ceremony before a Nueva Ecija town
A.M. No. MTJ-92-706 | 1995-03-29 mayor on April 25, 1965, the same was not a valid marriage for lack of a
marriage license. Upon the request of the parents of Ongkiko, respondent
QUIASON, J.: 
went through another marriage ceremony with her in Manila on June 5,
This is a complaint by Lupo A. Atienza for Gross Immorality and 1965. Again, neither party applied for a marriage license. Ongkiko
Appearance of Impropriety against Judge Francisco Brillantes, Jr., abandoned respondent 19 years ago, leaving their children to his care and
Presiding Judge of the Metropolitan Trial Court, Branch 20, Manila.  custody as a single parent. 

Complainant alleges that he has two children with Yolanda De Castro, Respondent claims that when he married De Castro in civil rites in Los
who are living together at No. 34 Galaxy Street, Bel-Air Subdivision, Angeles, California on December 4, 1991, he believed, in all good faith
Makati, Metro Manila. He stays in said house, which he purchased in and for all legal intents and purposes, that he was single because his first
1987, whenever he is in Manila.  marriage was solemnized without a license. 

In December 1991, upon opening the door to his bedroom, he saw Under the Family Code, there must be a judicial declaration of the nullity
respondent sleeping on his (complainant's) bed. Upon inquiry, he was told of a previous marriage before a party thereto can enter into a second
by the houseboy that respondent had been cohabiting with De Castro. marriage. Article 40 of said Code provides: 
Complainant did not bother to wake up respondent and instead left the
house after giving instructions to his houseboy to take care of his "The absolute nullity of a previous marriage may be invoked for the
children.  purposes of remarriage on the basis solely of a final judgment declaring
such previous marriage void." 
Thereafter, respondent prevented him from visiting his children and even
alienated the affection of his children for him.  Respondent argues that the provision of Article 40 of the Family Code
does not apply to him considering that his first marriage took place in
Complainant claims that respondent is married to one Zenaida Ongkiko 1965 and was governed by the Civil Code of the Philippines; while the
with whom he has five children, as appearing in his 1986 and 1991 sworn second marriage took place in 1991 and governed by the Family Code. 
statements of assets and liabilities. Furthermore, he alleges that
respondent caused his arrest on January 13, 1992, after he had a heated Article 40 is applicable to remarriages entered into after the effectivity of
argument with De Castro inside the latter's office.  the Family Code on August 3, 1988 regardless of the date of the first
marriage. Besides, under Article 256 of the Family Code, said Article is
For his part, respondent alleges that complainant was not married to De given "retroactive effect insofar as it does not prejudice or impair vested or
Castro and that the filing of the administrative action was related to acquired rights in accordance with the Civil Code or other laws." This is
complainant's claim on the Bel-Air residence, which was disputed by De particularly true with Article 40, which is a rule of procedure. Respondent
Castro.  has not shown any vested right that was impaired by the application of
Article 40 to his case. 
Respondent denies that he caused complainant's arrest and claims that he
was even a witness to the withdrawal of the complaint for Grave Slander The fact that procedural statutes may somehow affect the litigants' rights
filed by De Castro against complainant. According to him, it was the sister may not preclude their retroactive application to pending actions. The
of De Castro who called the police to arrest complainant.  retroactive application of procedural laws is not violative of any right of a

1
person who may feel that he is adversely affected (Gregorio v. Court of government-owned and controlled corporations. This decision is
Appeals, 26 SCRA 229 [1968]). The reason is that as a general rule no immediately executory. 
vested right may attach to, nor arise from, procedural laws (Billones v.
Court of Industrial Relations, 14 SCRA 674 [1965]).  SO ORDERED. 

Respondent is the last person allowed to invoke good faith. He made a Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo,
mockery of the institution of marriage and employed deceit to be able to Melo, Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur.
cohabit with a woman, who begot him five children. 

Respondent passed the Bar examinations in 1962 and was admitted to the
practice of law in 1963. At the time he went through the two marriage
ceremonies with Ongkiko, he was already a lawyer. Yet, he never secured
any marriage license. Any law student would know that a marriage license
is necessary before one can get married. Respondent was given an
opportunity to correct the flaw in his first marriage when he and Ongkiko
were married for the second time. His failure to secure a marriage license
on these two occasions betrays his sinister motives and bad faith. 

It is evident that respondent failed to meet the standard of moral fitness

for membership in the legal profession. 

While the deceit employed by respondent existed prior to his appointment

as a Metropolitan Trial Judge, his immoral and illegal act of cohabiting
with De Castro began and continued when he was already in the
judiciary. 

The Code of Judicial Ethics mandates that the conduct of a judge must be
free of a whiff of impropriety, not only with respect to his performance of
his judicial duties but also as to his behavior as a private individual. There
is no duality of morality. A public figure is also judged by his private life. A
judge, in order to promote public confidence in the integrity and
impartiality of the judiciary, must behave with propriety at all times, in the
performance of his judicial duties and in his everyday life. These are
judicial guideposts too self-evident to be overlooked. No position exacts a
greater demand on moral righteousness and uprightness of an individual
than a seat in the judiciary. (Imbing v. Tiongzon 229 SCRA 690 [19941). 

WHEREFORE, respondent is DISMISSED from the service with forfeiture

of all leave and retirement benefits and with prejudice to reappointment
in any branch, instrumentality, or agency of the government, including

2
 ROBERTO DOMINGO, petitioner, vs. COURT OF APPEALS and DELIA order or a writ of preliminary injunction be issued enjoining Roberto from
SOLEDAD AVERA represented by her Attorney-in-Fact MOISES R. exercising any act of administration and ownership over said properties;
AVERA, respondents. their marriage be declared null and void and of no force and effect; and
Delia Soledad be declared the sole and exclusive owner of all properties
G.R. No. 104818 | 1993-09-17 acquired at the time of their void marriage and such properties be placed
under the proper management and administration of the attorney-in-
ROMERO, J.: 
fact. 
The instant petition seeks the reversal of respondent court's ruling finding
Petitioner filed a Motion to Dismiss on the ground that the petition stated
no grave abuse of discretion in the lower court's order denying petitioner's
no cause of action. The marriage being void ab initio, the petition for the
motion to dismiss the petition for declaration of nullity of marriages and
declaration of its nullity is, therefore, superfluous and unnecessary. It
separation of property. 
added that private respondent has no property which is in his possession. 
On May 29, 1991, private respondent Delia Soledad A. Domingo filed a
On August 20, 1991, Judge Maria Alicia M. Austria issued an Order
petition before the Regional Trial Court of Pasig entitled "Declaration of
denying the motion to dismiss for lack of merit. She explained: 
Nullity of Marriage and Separation of Property" against petitioner Roberto
Domingo. "Movant argues that a second marriage contracted after a first marriage by
a man with another woman is illegal and void (citing the case of Yap v.
The petition which was docketed as Special Proceedings No. 1989-J Court of Appeals, 145 SCRA 229) and no judicial decree is necessary to
alleged among others that: they were married on November 29, 1976 at establish the invalidity of a void marriage (citing the cases of People v.
the YMCA Youth Center Bldg., as evidenced by a Marriage Contract Aragon, 100 Phil. 1033; People v. Mendoza, 95 Phil. 845). Indeed, under
the Yap case there is no dispute that the second marriage contracted by
Registry No. 1277K-76 with Marriage License No. 4999036 issued at
respondent with herein petitioner after a first marriage with another
Carmona, Cavite; unknown to her, he had a previous marriage with one woman is illegal and void. However, as to whether or not the second
Emerlina dela Paz on April 25, 1969 which marriage is valid and still marriage should first be judicially declared a nullity is not an issue in said
existing; she came to know of the prior marriage only sometime in 1983 case. In the case of Vda. de Consuegra v. GSIS, the Supreme Court ruled in
when Emerlina dela Paz sued them for bigamy; from January 23, 1979 up explicit terms, thus: 
to the present, she has been working in Saudi Arabia and she used to
And with respect to the right of the second wife, this Court
come to the Philippines only when she would avail of the one-month observed that although the second marriage can be presumed to
annual vacation leave granted by her foreign employer; since 1983 up to be void ab initio as it was celebrated while the first marriage was
the present, he has been unemployed and completely dependent upon her still subsisting, still there is need for judicial declaration of its
for support and subsistence; out of her personal earnings, she purchased nullity. (37 SCRA 316, 326). 
real and personal properties with a total amount of approximately
The above ruling which is of later vintage deviated from the
P350,000.00, which are under the possession and administration of
previous rulings of the Supreme Court in the aforecited cases of
Roberto; sometime in June 1989, while on her one-month vacation, she Aragon and Mendoza. 
discovered that he was cohabiting with another woman; she further
discovered that he had been disposing of some of her properties without Finally, the contention of respondent movant that petitioner has
her knowledge or consent; she confronted him about this and thereafter no property in his possession is an issue that may be determined
appointed her brother Moises R. Avera as her attorney-in-fact to take care only after trial on the merits." 1 
of her properties; he failed and refused to turn over the possession and
administration of said properties to her brother/attorney-in-fact; and he is A motion for reconsideration was filed stressing the erroneous application
not authorized to administer and possess the same on account of the of Vda. de Consuegra v. GSIS 2 and the absence of justiciable controversy
nullity of their marriage. The petition prayed that a temporary restraining as to the nullity of the marriage. On September 11, 1991, Judge Austria

3
denied the motion for reconsideration and gave petitioner fifteen (15) First, whether or not a petition for judicial declaration of a void marriage
days from receipt within which to file his answer.  is necessary. If in the affirmative, whether the same should be filed only
for purposes of remarriage. 
Instead of filing the required answer, petitioner filed a special civil action
of certiorari and mandamus on the ground that the lower court acted with Second,  whether or not SP No. 1989-J is the proper remedy of private
grave abuse of discretion amounting to lack of jurisdiction in denying the respondent to recover certain real and personal properties allegedly
motion to dismiss.  belonging to her exclusively. 

On February 7, 1992, the Court of Appeals 3 dismissed the petition. It Petitioner, invoking the ruling in People v. Aragon 6 and People v.
explained that the case of Yap v. CA 4 cited by petitioner and that of Mendoza, 7 contends that SP. No. 1989-J for Declaration of Nullity of
Consuegra v. GSIS relied upon by the lower court do not have relevance in Marriage and Separation of Property filed by private respondent must be
the case at bar, there being no identity of facts because these cases dealt dismissed for being unnecessary and superfluous. Furthermore, under his
with the successional rights of the second wife while the instant case prays own interpretation of Article 40 of the Family Code, he submits that a
for separation of property corollary with the declaration of nullity of petition for declaration of absolute nullity of marriage is required only for
marriage. purposes of remarriage. Since the petition in SP No. 1989-J contains no
allegation of private respondent's intention to remarry, said petition
It observed that the separation and subsequent distribution of the should, therefore, be dismissed. 
properties acquired during the union can be had only upon proper
determination of the status of the marital relationship between said On the other hand, private respondent insists on the necessity of a judicial
parties, whether or not the validity of the first marriage is denied by declaration of the nullity of their marriage, not for purposes of
petitioner. Furthermore, in order to avoid duplication and multiplicity of remarriage, but in order to provide a basis for the separation and
suits, the declaration of nullity of marriage may be invoked in this distribution of the properties acquired during coverture. 
proceeding together with the partition and distribution of the properties
involved. There is no question that the marriage of petitioner and private
respondent celebrated while the former's previous marriage with one
Citing Articles 48, 50 and 52 of the Family Code, it held that private Emerlina de la Paz was still subsisting, is bigamous. As such, it is void
respondent's prayer for declaration of absolute nullity of their marriage from the beginning. 8 Petitioner himself does not dispute the absolute
may be raised together with other incidents of their marriage such as the nullity of their marriage. 9 
separation of their properties.
The cases of People v. Aragon and People v. Mendoza relied upon by
Lastly, it noted that since the Court has jurisdiction, the alleged error in petitioner are cases where the Court had earlier ruled that no judicial
refusing to grant the motion to dismiss is merely one of law for which the decree is necessary to establish the invalidity of a void, bigamous
remedy ordinarily would have been to file an answer, proceed with the marriage. It is noteworthy to observe that Justice Alex Reyes, however,
trial and in case of an adverse decision, reiterate the issue on appeal. The dissented on these occasions stating that: 
motion for reconsideration was subsequently denied for lack of merit. 5 
"Though the logician may say that where the former marriage was void
Hence, this petition.  there would be nothing to dissolve, still it is not for the spouses to judge
whether that marriage was void or not. That judgment is reserved to the
courts . . ." 10 
The two basic issues confronting the Court in the instant case are the
following.  This dissenting opinion was adopted as the majority position in
subsequent cases involving the same issue. Thus, in Gomez v. Lipana, 11
4
the Court abandoned its earlier ruling in the Aragon and Mendoza cases. Philippines took the position that parties to a marriage should not be
In reversing the lower court's order forfeiting the husband's share of the allowed to assume that their marriage is void even if such be the fact but
disputed property acquired during the second marriage, the Court stated must first secure a judicial declaration of the nullity of their marriage
that "if the nullity, or annulment of the marriage is the basis for the before they can be allowed to marry again.
application of Article 1417, there is need for a judicial declaration thereof, This is borne out by the following minutes of the 152nd Joint Meeting of
which of course contemplates an action for that purpose."  the Civil Code and Family Law Committees where the present Article 40,
then Art. 39, was discussed. 
Citing Gomez v. Lipana, the Court subsequently held in Vda. de Consuegra
v. Government Service Insurance System, that "although the second "B. Article 39. -- 
marriage can be presumed to be void ab initio as it was celebrated while
The absolute nullity of a marriage may be invoked only on the basis of a
the first marriage was still subsisting, still there is need for judicial final judgment declaring the marriage void, except as provided in Article
declaration of such nullity."  41. 

In Tolentino v. Paras, 12 however, the Court turned around and applied Justice Caguioa remarked that the above provision should include not
the Aragon and Mendoza ruling once again. In granting the prayer of the only void but also voidable marriages. He then suggested that the above
first wife asking for a declaration as the lawful surviving spouse and the provision be modified as follows: 
correction of the death certificate of her deceased husband, it explained
that "(t)he second marriage that he contracted with private respondent The validity of a marriage may be invoked only . . . 
during the lifetime of his first spouse is null and void from the beginning
and of no force and effect. No judicial decree is necessary to establish the Justice Reyes (J.B.L. Reyes), however, proposed that they say: 
invalidity of a void marriage." 
The validity or invalidity of a marriage may be invoked only . . . 
However, in the more recent case of Wiegel v. Sempio-Diy 13 the Court
reverted to the Consuegra case and held that there was "no need of On the other hand, Justice Puno suggested that they say: 
introducing evidence about the existing prior marriage of her first
husband at the time they married each other, for then such a marriage The invalidity of a marriage may be invoked only . . . 
though void still needs according to this Court a judicial declaration of
such fact and for all legal intents and purposes she would still be regarded Justice Caguioa explained that his idea is that one cannot determine for
as a married woman at the time she contracted her marriage with himself whether or not his marriage is valid and that a court action is
respondent Karl Heinz Wiegel."  needed. Justice Puno accordingly proposed that the provision be modified
to read: 
Came the Family Code which settled once and for all the conflicting
The invalidity of a marriage may be invoked only on the basis of a final
jurisprudence on the matter. A declaration of the absolute nullity of a judgment annulling the marriage or declaring the marriage void, except
marriage is now explicitly required either as a cause of action or a ground as provided in Article 41. 
for defense. 14 Where the absolute nullity of a previous marriage is
sought to be invoked for purposes of contracting a second marriage, the Justice Caguioa remarked that in annulment, there is no question. Justice
sole basis acceptable in law for said projected marriage to be free from Puno, however, pointed out that, even if it is a judgment of annulment,
legal infirmity is a final judgment declaring the previous marriage void. they still have to produce the judgment. 

The Family Law Revision Committee and the Civil Code Revision Justice Caguioa suggested that they say: 
Committee 16 which drafted what is now the Family Code of the

5
 The invalidity of a marriage may be invoked only on the basis of a final The absolute nullity of a previous marriage may be invoked for purposes
judgment declaring the marriage invalid, except as provided in Article of establishing the validity of a subsequent marriage only on the basis of a
41.  final judgment declaring such previous marriage void, except as provided
in Article 41. 
Justice Puno raised the question: When a marriage is declared invalid,
does it include the annulment of a marriage and the declaration that the Justice Puno later modified the above as follows: 
marriage is void? Justice Caguioa replied in the affirmative. Dean Gupit
added that in some judgments, even if the marriage is annulled, it is For the purpose of establishing the validity of a subsequent marriage, the
absolute nullity of a previous marriage may only be invoked on the basis
declared void. Justice Puno suggested that this matter be made clear in
of a final judgment declaring such nullity, except as provided in Article
the provision.  41. 

Prof. Baviera remarked that the original idea in the provision is to require Justice Caguioa commented that the above provision is too broad and will
first a judicial declaration of a void marriage and not annullable not solve the objection of Prof. Bautista. He proposed that they say: 
marriages, with which the other members concurred. Judge Diy added
that annullable marriages are presumed valid until a direct action is filed For the purpose of entering into a subsequent marriage, the absolute
to annul it, which the other members affirmed. Justice Puno remarked nullity of a previous marriage may only be invoked on the basis of a final
that if this is so, then the phrase 'absolute nullity' can stand since it might judgment declaring such nullity, except as provided in Article 41. 
result in confusion if they change the phrase to 'invalidity' if what they are
referring to in the provision is the declaration that the marriage is void.  Justice Caguioa explained that the idea in the above provision is that if
one enters into a subsequent marriage without obtaining a final judgment
Prof. Bautista commented that they will be doing away with collateral declaring the nullity of a previous marriage, said subsequent marriage is
defense as well as collateral attack. Justice Caguioa explained that the void ab initio. 
idea in the provision is that there should be a final judgment declaring the
marriage void and a party should not declare for himself whether or not After further deliberation, Justice Puno suggested that they go back to the
the marriage is void, which the other members affirmed. Justice Caguioa original wording of the provision as follows: 
added that they are, therefore, trying to avoid a collateral attack on that
The absolute nullity of a previous marriage may be invoked for purposes of
point. Prof. Bautista stated that there are actions which are brought on the remarriage only on the basis of a final judgment declaring such previous marriage
assumption that the marriage is valid. He then asked: Are they depriving void, except as provided in Article 41." 17 
one of the right to raise the defense that he has no liability because the
basis of the liability is void? Prof. Bautista added that they cannot say that In fact, the requirement for a declaration of absolute nullity of a marriage
there will be no judgment on the validity or invalidity of the marriage is also for the protection of the spouse who, believing that his or her
because it will be taken up in the same proceeding. It will not be a marriage is illegal and void, marries again. With the judicial declaration of
unilateral declaration that it is a void marriage. Justice Caguioa saw the the nullity of his or her first marriage, the person who marries again
point of Prof. Bautista and suggested that they limit the provision to cannot be charged with bigamy. 18 
remarriage. He then proposed that Article 39 be reworded as follows: 
Just over a year ago, the Court made the pronouncement that there is a
The absolute nullity of a marriage for purposes of remarriage may be necessity for a judicial declaration of absolute nullity of a prior subsisting
invoked only on the basis of final judgment . . .  marriage before contracting another in the recent case of Terre v. Terre. 19
The Court, in turning down the defense of respondent Terre who was
Justice Puno suggested that the above be modified as follows:  charged with grossly immoral conduct consisting of contracting a second
marriage and living with another woman other than complainant while
his prior marriage with the latter remained subsisting, said that "for
6
purposes of determining whether a person is legally free to contract a In such cases, evidence needs must be adduced, testimonial or
second marriage, a judicial declaration that the first marriage was null documentary, to prove the existence of grounds rendering such a previous
and void ab initio is essential."  marriage an absolute nullity. These need not be limited solely to an earlier
final judgment of a court declaring such previous marriage void. Hence, in
As regards the necessity for a judicial declaration of absolute nullity of the instance where a party who has previously contracted a marriage
marriage, petitioner submits that the same can be maintained only if it is which remains subsisting desires to enter into another marriage which is
for the purpose of remarriage. Failure to allege this purpose, according to legally unassailable, he is required by law to prove that the previous one
petitioner's theory, will warrant dismissal of the same.  was an absolute nullity. But this he may do on the basis solely of a final
judgment declaring such previous marriage void. 
Article 40 of the Family Code provides: 
This leads us to the question: Why the distinction? In other words, for
"ART. 40. The absolute nullity of a previous marriage may be purposes of remarriage, why should the only legally acceptable basis for
invoked for purposes of remarriage on the basis solely of a final declaring a previous marriage an absolute nullity be a final judgment
judgment declaring such previous marriage void." (n).  declaring such previous marriage void? Whereas, for purposes other than
remarriage, other evidence is acceptable? 
Crucial to the proper interpretation of Article 40 is the position in the
provision of the word "solely." As it is placed, the same shows that is it Marriage, a sacrosanct institution, declared by the Constitution as an
meant to qualify "final judgment declaring such previous marriage void." "inviolable social institution, is the foundation of the family;" as such, it
Realizing the need for careful craftsmanship in conveying the precise "shall be protected by the State." 20 In more explicit terms, the Family
intent of the Committee members, the provision in question, as it finally Code characterizes it as "a special contract of permanent union between a
emerged, did not state "The absolute nullity of a previous marriage may man and a woman entered into in accordance with law for the
be invoked solely for purposes of remarriage . . .," in which case "solely" establishment of conjugal and family life." 21 So crucial are marriage and
would clearly qualify the phrase "for purposes of remarriage." the family to the stability and peace of the nation that their "nature,
consequences, and incidents are governed by law and not subject to
Had the phraseology been such, the interpretation of petitioner would stipulation.." 22 As a matter of policy, therefore, the nullification of a
have been correct and, that is, that the absolute nullity of a previous marriage for the purpose of contracting another cannot be accomplished
marriage may be invoked solely for purposes of remarriage, thus merely on the basis of the perception of both parties or of one that their
rendering irrelevant the clause "on the basis solely of a final judgment union is so defective with respect to the essential requisites of a contract
declaring such previous marriage void."  of marriage as to render it void ipso jure and with no legal effect - and
nothing more. Were this so, this inviolable social institution would be
That Article 40 as finally formulated included the significant clause reduced to a mockery and would rest on very shaky foundations indeed.
denotes that such final judgment declaring the previous marriage void And the grounds for nullifying marriage would be as diverse and far-
need not be obtained only for purposes of remarriage. Undoubtedly, one ranging as human ingenuity and fancy could conceive. For such a socially
can conceive of other instances where a party might well invoke the significant institution, an official state pronouncement through the courts,
absolute nullity of a previous marriage for purposes other than and nothing less, will satisfy the exacting norms of society. Not only would
remarriage, such as in case of an action for liquidation, partition, such an open and public declaration by the courts definitively confirm the
distribution and separation of property between the erstwhile spouses, as nullity of the contract of marriage, but the same would be easily verifiable
well as an action for the custody and support of their common children through records accessible to everyone. 
and the delivery of the latter's presumptive legitimes.
That the law seeks to ensure that a prior marriage is no impediment to a
second sought to be contracted by one of the parties may be gleaned from

7
new information required in the Family Code to be included in the (2) The absolute community of property or the conjugal partnership, as
application for a marriage license, viz, "If previously married, how, when the case may be, shall be dissolved and liquidated, but if either spouse
contracted said marriage in bad faith, his or her share of the net profits of
and where the previous marriage was dissolved and annulled." 23 
the community property or conjugal partnership property shall be
forfeited in favor of the common children or, if there are none, the
Reverting to the case before us, petitioner's interpretation of Art. 40 of the children of the guilty spouse by a previous marriage or, in default of
Family Code is, undoubtedly, quite restrictive. Thus, his position that children, the innocent spouse; 
private respondent's failure to state in the petition that the same is filed to
enable her to remarry will result in the dismissal of SP No. 1989-J is (3) Donations by reason of marriage shall remain valid, except that if the
donee contracted the marriage in bad faith, such donations made to said
untenable. His misconstruction of Art. 40 resulting from the misplaced donee are revoked by operation of law; 
emphasis on the term "solely" was in fact anticipated by the members of
the Committee.  (4) The innocent spouse may revoke the designation of the other spouse
who acted in bad faith as a beneficiary in any insurance policy, even if
"Dean Gupit commented that the word "only" may be misconstrued to such designation be stipulated as irrevocable; and 
refer to "for purposes of remarriage." Judge Diy stated that "only" refers to
"final judgment." Justice Puno suggested that they say "on the basis only (5) The spouse who contracted the subsequent marriage in bad faith shall
of a final judgment." Prof. Baviera suggested that they use the legal term be disqualified to inherit from the innocent spouse by testate and
"solely" instead of "only," which the Committee approved." 24 (Emphasis intestate succession. (n). 
supplied). 
Art. 44. If both spouses of the subsequent marriage acted in bad faith,
Pursuing his previous argument that the declaration for absolute nullity said marriage shall be void ab initio and all donations by reason of
of marriage is unnecessary, petitioner suggests that private respondent marriage and testamentary disposition made by one in favor of the other
should have filed an ordinary civil action for the recovery of the are revoked by operation of law. (n)" 26 
properties alleged to have been acquired during their union.
Based on the foregoing provisions, private respondent's ultimate prayer
In such an eventuality, the lower court would not be acting as a mere
for separation of property will simply be one of the necessary
special court but would be clothed with jurisdiction to rule on the issues
of possession and ownership. In addition, he pointed out that there is consequences of the judicial declaration of absolute nullity of their
actually nothing to separate or partition as the petition admits that all the marriage. Thus, petitioner's suggestion that in order for their properties to
properties were acquired with private respondent's money.  be separated, an ordinary civil action has to be instituted for that purpose
is baseless. The Family Code has clearly provided the effects of the
The Court of Appeals disregarded this argument and concluded that "the declaration of nullity of marriage, one of which is the separation of
prayer for declaration of absolute nullity of marriage may be raised
together with the other incident of their marriage such as the separation
property according to the regime of property relations governing them.
of their properties." 
It stands to reason that the lower court before whom the issue of nullity of
When a marriage is declared void ab initio, the law states that the final a first marriage is brought is likewise clothed with jurisdiction to decide
judgment therein shall provide for "the liquidation, partition and the incidental questions regarding the couple's properties. Accordingly, the
distribution of the properties of the spouses, the custody and support of respondent court committed no reversible error in finding that the lower
the common children, and the delivery of their presumptive legitimes, court committed no grave abuse of discretion in denying petitioner's
unless such matters had been adjudicated in previous judicial motion to dismiss SP No. 1989-J. 
proceedings." 25 Other specific effects flowing therefrom, in proper cases,
are the following:  WHEREFORE, the instant petition is hereby DENIED. The decision of
respondent Court dated February 7, 1992 and the Resolution dated March
"Art. 43. . . .  20, 1992 are AFFIRMED. SO ORDERED. 

8
 RENATO A. CASTILLO, PETITIONER, VS. LEA P. DE LEON CASTILLO,
RESPONDENT. On 3 January 2002, respondent filed an action to declare her first
marriage to Baustista void. On 22 January 2003, the Regional Trial Court
G.R. No. 189607 | 2016-04-18 of Parañaque City, Branch 260 rendered its Decision[6]  declaring that
SERENO, C.J.: Lea's first marriage to Bautista was indeed null and void  ab initio.
  Thereafter, the same court issued a Certificate of Finality saying that the
Before this Court is a Petition for Review on Certiorari under Rule 45 of Decision dated 22 January 2003 had become final and executory.[7]
the Rules of Court, assailing the Court of Appeals (CA) Decision[1] in CA-
G.R. CV No. 90153 and the Resolution[2] that affirmed the same. The CA On 12 August 2004, respondent filed a Demurrer to Evidence[8] claiming
reversed the Decision[3]  dated 23 March 2007 issued by the Regional that the proof adduced by petitioner was insufficient to warrant a
Trial Court (RTC) of Quezon City, Branch 84. declaration of nullity of their marriage on the ground that it was
bigamous. In his Opposition,[9] petitioner countered that whether or not
The RTC had granted the Petition for Declaration of Nullity of Marriage the first marriage of respondent was valid, and regardless of the fact that
between the parties on the ground that respondent had a previous valid she had belatedly managed to obtain a judicial declaration of nullity, she
marriage before she married petitioner. The CA believes on the other still could not deny that at the time she entered into marriage with him,
hand, that respondent was not prevented from contracting a second her previous marriage was valid and subsisting. The RTC thereafter
marriage if the first one was an absolutely nullity, and for this purpose she denied respondent's demurrer in its Order[10] dated 8 March 2005.
did not have to await a final decree of nullity of the first marriage.
In a Decision[11] dated 23 March 2007, the RTC declared the marriage
The only issue that must be resolved by the Court is whether the CA was between petitioner and respondent null and void ab initio on the ground
correct in holding thus and consequentially reversing the RTC's that it was a bigamous marriage under Article 41 of the Family Code.
declaration of nullity of the second marriage. [12] The dispositive portion reads:
   
WHEREFORE, in the light of the foregoing considerations, the Court
FACTUAL ANTECEDENTS hereby declares the marriage between RENATO A. CASTILLO and LEA P.
DE LEON-CASTILLO contracted on January 6, 1979, at the Mary the
On 25 May 1972, respondent Lea P. De Leon Castillo (Lea) married Queen Parish Church, San Juan, Metro Manila, is hereby declared NULL
Benjamin Bautista (Bautista). On 6 January 1979, respondent married AND VOID AB INITIO based on bigamous marriage, under Article 41 of
herein petitioner Renato A. Castillo (Renato). the Family Code.[13]
 
The RTC said that the fact that Lea's marriage to Bautista was subsisting when
On 28 May 2001, Renato filed before the RTC a Petition for Declaration of
she married Renato on 6 January 1979, makes her marriage to Renato
Nullity of Marriage,[4] praying that his marriage to Lea be declared void bigamous, thus rendering it void  ab initio. The lower court dismissed Lea's
due to her subsisting marriage to Bautista and her psychological argument that she need not obtain a judicial decree of nullity and could
incapacity under Article 36 of the Family Code. The CA states in its presume the nullity of a prior subsisting marriage. The RTC stressed that so
Decision that petitioner did not pursue the ground of psychological long as no judicial declaration exists, the prior marriage is valid and existing.
incapacity in the RTC. The reason for this finding by the CA while unclear, Lastly, it also said that even if respondent eventually had her first marriage
is irrelevant in this Petition. judicially declared void, the fact remains that the first and second marriage
were subsisting before the first marriage was annulled, since Lea failed to
Respondent opposed the Petition, and contended among others that her obtain a judicial decree of nullity for her first marriage to Bautista before
marriage to Bautista was null and void as they had not secured any license contracting her second marriage with Renato.[14]
therefor, and neither of them was a member of the denomination to which
Petitioner moved for reconsideration insofar as the distribution of their
the solemnizing officer belonged.[5]
properties were concerned.[15] His motion, however, was denied by the RTC
9
i n i t s O r d e r [ 1 6 ]  d a t e d 6 S e p t e m b e r 2 0 0 7 . T h e r e a f t e r, b o t h (2) a void marriage cannot be ratified, while a voidable marriage can be
petitioner[17] and respondent[18] filed their respective Notices of Appeal. ratified by cohabitation;
 
In a Decision[19]  dated 20 April 2009, the CA reversed and set aside the (3) being nonexistent, a void marriage can be collaterally attacked, while
a voidable marriage cannot be collaterally attacked;
RTC's Decision and Order and upheld the validity of the parties' marriage. In
 
reversing the RTC, the CA said that since Lea's marriages were solemnized in (4) in a void marriage, there is no conjugal partnership and the offspring
1972 and in 1979, or prior to the effectivity of the Family Code on 3 August are natural children by legal fiction, while in voidable marriage there is
1988, the Civil Code is the applicable law since it is the law in effect at the conjugal partnership and the children conceived before the decree of
time the marriages were celebrated, and not the Family Code. annulment are considered legitimate; and
[20]  Furthermore, the CA ruled that the Civil Code does not state that a  
judicial decree is necessary in order to establish the nullity of a marriage.[21] (5) "in a void marriage no judicial decree to establish the invalidity is
necessary," while in a voidable marriage there must be a judicial decree.
Petitioner's motion for reconsideration of the CA's Decision was likewise [33]
denied in the questioned CA Resolution[22]dated 16 September 2009.  
Emphasizing the fifth difference, this Court has held in the cases of People v.
Hence, this Petition for Review on Certiorari. Mendoza,[34]  People v. Aragon,[35]  and Odayat v. Amante,[36]  that the
Civil Code contains no express provision on the necessity of a judicial
Respondent filed her Comment[23] praying that the CA Decision finding her declaration of nullity of a void marriage.[37]
marriage to petitioner valid be affirmed  in toto, and that all properties
acquired by the spouses during their marriage be declared conjugal. In his In  Mendoza  (1954), appellant contracted three marriages in 1936, 1941,
Reply to the Comment,[24]  petitioner reiterated the allegations in his and 1949. The second marriage was contracted in the belief that the first wife
Petition. was already dead, while the third marriage was contracted after the death of
  the second wife. The Court ruled that the first marriage was deemed valid
OUR RULING until annulled, which made the second marriage null and void for being
bigamous. Thus, the third marriage was valid, as the second marriage was
We deny the Petition. void from its performance, hence, nonexistent without the need of a judicial
decree declaring it to be so.
The validity of a marriage and all its incidents must be determined in
accordance with the law in effect at the time of its celebration.[25]  In this This doctrine was reiterated in Aragon (1957), which involved substantially
case, the law in force at the time Lea contracted both marriages was the Civil t h e s a m e f a c t u a l a n t e c e d e n t s . I n  O d a y a t ( 1 9 7 7 ) ,
Code. The children of the parties were also born while the Civil Code was in citing Mendoza and Aragon, the Court likewise ruled that no judicial decree
effect i.e. in 1979, 1981, and 1985. Hence, the Court must resolve this case was necessary to establish the invalidity of void marriages under Article 80 of
using the provisions under the Civil Code on void marriages, in particular, the Civil Code.
Articles 80,[26]  81,[27]  82,[28]  and 83 (first paragraph);[29]  and those
on voidable marriages are Articles 83 (second paragraph),[30]85[31]  and It must be emphasized that the enactment of the Family Code rendered the
86.[32] rulings in Odayat, Mendoza, and Aragoninapplicable to marriages celebrated
after 3 August 1988. A judicial declaration of absolute nullity of marriage is
Under the Civil Code, a void marriage differs from a voidable marriage in the now expressly required where the nullity of a previous marriage is invoked for
following ways: purposes of contracting a second marriage.[38]  A second marriage
  contracted prior to the issuance of this declaration of nullity is thus
(1) a void marriage is nonexistent - i.e., there was no marriage from the considered bigamous and void.[39]  In  Domingo v. Court of Appeals, we
beginning - while in a voidable marriage, the marriage is valid until explained the policy behind the institution of this requirement:
annulled by a competent court;  
  Marriage, a sacrosanct institution, declared by the Constitution as an
"inviolable social institution, is the foundation of the family;" as such, it

10
 "shall be protected by the State." In more explicit terms, the Family Code As earlier explained, the rule in  Odayat, Mendoza, and Aragon  is
characterizes it as "a special contract of permanent union between a man applicable to this case. The Court thus concludes that the subsequent
and a woman entered into in accordance with law for the establishment
marriage of Lea to Renato is valid in view of the invalidity of her first
of conjugal and family life." So crucial are marriage and the family to the
stability and peace of the nation that their "nature, consequences, and marriage to Bautista because of the absence of a marriage license. That
incidents are governed by law and not subject to stipulation." As a matter there was no judicial declaration that the first marriage was void ab
of policy, therefore, the nullification of a marriage for the purpose of initio before the second marriage was contracted is immaterial as this is
contracting another cannot be accomplished merely on the basis of the not a requirement under the Civil Code. Nonetheless, the subsequent
perception of both parties or of one that their union is so defective with Decision of the RTC of Parañaque City declaring the nullity of Lea's first
respect to the essential requisites of a contract of marriage as to render it
void ipso jure and with no legal effect — and nothing more. Were this so,
marriage only serves to strengthen the conclusion that her subsequent
this inviolable social institution would be reduced to a mockery and marriage to Renato is valid.
would rest on very shaky foundations indeed.  And the grounds for
nullifying marriage would be as diverse and far-ranging as human In view of the foregoing, it is evident that the CA did not err in upholding
ingenuity and fancy could conceive.  For such a socially significant the validity of the marriage between petitioner and respondent. Hence,
institution, an official state pronouncement through the courts, and
we find no reason to disturb its ruling.
nothing less, will satisfy the exacting norms of society. Not only would
such an open and public declaration by the courts definitively confirm the
nullity of the contract of marriage, but the same would be easily verifiable WHEREFORE, premises considered, the Petition is DENIED. The Court of
through records accessible to everyone.[40](Emphases supplied) Appeals Decision dated 20 April 2009 and Resolution dated 16 September
  2009 in CA-G.R. CV No. 90153 are AFFIRMED.
x x x. In Apiag v. Cantero, (1997) the first wife charged a municipal trial
judge of immorality for entering into a second marriage. The judge SO ORDERED.
claimed that his first marriage was void since he was merely forced into
marrying his first wife whom he got pregnant. On the issue of nullity of
the first marriage, we applied Odayat, Mendoza and Aragon. We held that
since the second marriage took place and all the children thereunder
were born before the promulgation of Wiegel and the effectivity of the
Family Code, there is no need for a judicial declaration of nullity of the
first marriage pursuant to prevailing jurisprudence at that time.

Similarly, in the present case, the second marriage of private respondent

was entered into in 1979, before Wiegel. At that time, the prevailing rule
was found in Odayat, Mendoza and Aragon. The first marriage of private
respondent being void for lack of license and consent, there was no need
for judicial declaration of its nullity before he could contract a second
marriage. In this case, therefore, we conclude that private respondent's
second marriage to petitioner is valid.

Moreover, we find that the provisions of the Family Code cannot be

retroactively applied to the present case, for to do so would prejudice the
vested rights of petitioner and of her children. As held in Jison v. Court of
Appeals, the Family Code has retroactive effect unless there be
impairment of vested rights. In the present case, that impairment of
vested rights of petitioner and the children is patent x x x. (Citations
omitted)
 

11
VINCENT PAUL G. MERCADO a.k.a. VINCENT G. MERCADO, petitioner, status of accused was `single.' There is no dispute either that at the time
vs. CONSUELO TAN, respondent. of the celebration of the wedding with complainant, accused was actually
a married man, having been in lawful wedlock with Ma. Thelma Oliva in a
G.R. No. 137110 | 2000-08-01 marriage ceremony solemnized on April 10, 1976 by Judge Leonardo B.
Canares, CFI-Br. XIV, Cebu City per Marriage Certificate issued in
PANGANIBAN, J.: 
connection therewith, which matrimony was further blessed by Rev.
Father Arthur Baur on October 10, 1976 in religious rites at the Sacred
A judicial declaration of nullity of a previous marriage is necessary before
Heart Church, Cebu City. In the same manner, the civil marriage between
a subsequent one can be legally contracted. One who enters into a
accused and complainant was confirmed in a church ceremony on June
subsequent marriage without first obtaining such judicial declaration is
29, 1991 officiated by Msgr. Victorino A. Rivas, Judicial Vicar, Didcese of
guilty of bigamy. This principle applies even if the earlier union is
Bacolod City. Both marriages were consummated when out of the first
characterized by statutes as "void." 
consortium, Ma. Thelma Oliva bore accused two children, while a child,
Vincent Paul, Jr. was sired by accused with complainant Ma. Consuelo
The Case 
Tan. 
Before us is a Petition for Review on Certiorari assailing the July 14, 1998 "On October 5, 1992, a letter-complaint for bigamy was filed by
Decision of the Court of Appeals (CA)[1] in CA-GR CR No. 19830 and its complainant through counsel with the City Prosecutor of Bacolod City,
January 4, 1999 Resolution denying reconsideration. The assailed which eventually resulted [in] the institution of the present case before
Decision affirmed the ruling of the Regional Trial Court (RTC) of Bacolod this Court against said accused, Dr. Vincent C. Mercado, on March 1,1993
City in Criminal Case No. 13848, which convicted herein petitioner of in an Information dated January 22, 1993. 
bigamy as follows: 
"On November 13, 1992, or more than a month after the bigamy case was
lodged in the Prosecutor's Office, accused filed an action for Declaration
"WHEREFORE, finding the guilt of accused Dr. Vincent Paul G. Mercado of Nullity of Marriage against Ma. Thelma V. Oliva in RTC-Br. 22, Cebu
a.k.a. Dr. Vincent G. Mercado of the crime of Bigamy punishable under City, and in a Decision dated May 6, 1993 the marriage between Vincent
Article 349 of the Revised Penal Code to have been proven beyond C. Mercado and Ma. Thelma V. Oliva was declared null and void. 
reasonable doubt, [the court hereby renders] judgment imposing upon
him a prison term of three (3) years, four (4) months and fifteen (15) "Accused is charged [with] bigamy under Article 349 of the Revised Penal
days of prision correccional, as minimum of his indeterminate sentence, Code for having contracted a second marriage with herein complainant
to eight (8) years and twenty-one (21) days of prision mayor, as Ma. Consuelo Tan on June 27, 1991 when at that time he was previously
maximum, plus accessory penalties provided by law. united in lawful marriage with Ma. Thelma V. Oliva on April 10, 1976 at
Cebu City, without said first marriage having been legally dissolved. As
Costs against accused.[2]  shown by the evidence and admitted by accused, all the essential
elements of the crime are present, namely: (a) that the offender has been
The Facts  previously legally married; (2) that the first marriage has not been legally
dissolved or in case the spouse is absent, the absent spouse could not yet
The facts are quoted by Court of Appeals (CA) from the trial court's be presumed dead according to the Civil Code; (3) that he contract[ed] a
second or subsequent marriage; and (4) that the second or subsequent
judgment, as follows:  marriage ha[d] all the essential requisites for validity. x x x 

"From the evidence adduced by the parties, there is no dispute that "While acknowledging the existence of the two marriage[s], accused
accused Dr. Vincent Mercado and complainant Ma. Consuelo Tan got posited the defense that his previous marriage ha[d] been judicially
married on June 27, 1991 before MTCC-Bacolod City Br. 7 Judge declared null and void and that the private complainant had knowledge of
Gorgonio J. Ibanez [by reason of] which a Marriage Contract was duly the first marriage of accused. 
executed and signed by the parties. As entered in said document, the

12
"It is an admitted fact that when the second marriage was entered into The Court's Ruling 
with Ma. Consuelo Tan on June 27, 1991, accused's prior marriage with
Ma. Thelma V. Oliva was subsisting, no judicial action having yet been The petition is not meritorious. 
initiated or any judicial declaration obtained as to the nullity of such prior
marriage with Ma. Thelma V. Oliva. Since no declaration of the nullity of Main Issue: 
his first marriage ha[d] yet been made at the time of his, second marriage, Effect of Nullity of Previous Marriage 
it is clear that accused was a married man when he contracted such
second marriage with complainant on June 27, 1991. He was still at the Petitioner was convicted of bigamy under Article 349 of the Revised Penal
time validly married to his first wife."[3]  Code, which provides: 

Ruling of the Court of Appeals  "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
Agreeing with the lower court, the Court of Appeals stated:  presumptively dead by means of a judgment rendered in the proper
proceedings." 
"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 The elements of this crime are as follows: 
a final judgment declaring such previous marriage void.' But here, the
final judgment declaring null and void accused's previous marriage came
not before the celebration of the second marriage, but after, when the "1. That the offender has been legally married; 
case for bigamy against accused was already tried in court. And what
constitutes the crime of bigamy is the act of any person who shall contract 2. That the marriage has not been legally dissolved or, in case his
a second subsequent marriage `before' the former marriage has been or her spouse is absent, the absent spouse could not yet be
legally dissolved."[4] 
presumed dead according to the Civil Code; 
Hence, this Petition.[5] 
3. That he contracts a second or subsequent marriage; 
The Issues 
4. That the second or subsequent marriage has all the essential
requisites for validity."[7] 
In his Memorandum, petitioner raises the following issues: 
When the Information was filed on January 22, 1993, all the elements of
A 
bigamy were present. It is undisputed that petitioner married Thelma G.
Whether or not the element of previous legal marriage is present in order
Oliva on April 10, 1976 in Cebu City. While that marriage was still
to convict petitioner. 
subsisting, he contracted a second marriage, this time with Respondent
Ma. Consuelo Tan who subsequently filed the Complaint for bigamy. 
B 
Whether or not a liberal interpretation in favor of petitioner of Article 349
Petitioner contends, however, that he obtained a judicial declaration of
of the Revised Penal Code punishing bigamy, in relation to Articles 36 and
nullity of his first marriage under Article 36 of the Family Code, thereby
40 of the Family Code, negates the guilt of petitioner. 
rendering it void ab initio. Unlike voidable marriages which are
considered valid until set aside by a competent court, he argues that a
C 
void marriage is deemed never to have taken place at all.[8] Thus, he
Whether or not petitioner is entitled to an acquittal on the basis of
concludes that there is no first marriage to speak of. Petitioner also quotes
reasonable doubt."[6] 
the commentaries[9] of former Justice Luis Reyes that "it is now settled

13
that if the first marriage is void from the beginning, it is a defense in a his surviving spouse. The first wife then filed a Petition to correct the said
bigamy charge. But if the first marriage is voidable, it is not a defense."  entry in the Death Certificate. The Court ruled in favor of the first wife,
holding that "the second marriage that he contracted with private
Respondent, on the other hand, admits that the first marriage was respondent during the lifetime of the first spouse is null and void from the
declared null and void under Article 36 of the Family Code, but she points beginning and of no force and effect. No judicial decree is necessary to
out that that declaration came only after the Information had been filed. establish the invalidity of a void marriage." 
Hence, by then, the crime had already been consummated. She argues
that a judicial declaration of nullity of a void previous marriage must be In Wiegel v. Sempio-Diy,[15] the Court stressed the need for such
obtained before a person can marry for a subsequent time.  declaration. In that case, Karl Heinz Wiegel filed an action for the
declaration of nullity of his marriage to Lilia Olivia Wiegel on the ground
We agree with the respondent.  that the latter had a prior existing marriage. After pretrial, Lilia asked that
she be allowed to present evidence to prove, among others, that her first
To be sure, jurisprudence regarding the need for a judicial declaration of husband had previously been married to another woman. In holding that
nullity of the previous marriage has been characterized as there was no need for such evidence, the Court ruled:
"conflicting."[10] In People v. Mendoza,[11] a bigamy case involving an
accused who married three times, the Court ruled that there was no need "x x x There is likewise no need of introducing evidence about the
for such declaration. In that case, the accused contracted a second existing prior marriage of her first husband at the time they married each
other, for then such a marriage though void still needs, according to this
marriage during the subsistence of the first. When the first wife died, he
Court, a judicial declaration of such fact and for all legal intents and
married for the third time. The second wife then charged him with purposes she would still be regarded as a married woman at the time she
bigamy. Acquitting him, the Court held that the second marriage was void contracted her marriage with respondent Karl Heinz Wiegel; x x x." 
ab initio because it had been contracted while the first marriage was still
in effect. Since the second marriage was obviously void and illegal, the Subsequently, in Yap v. CA,[16] the Court reverted to the ruling in People
Court ruled that there was no need for a judicial declaration of its nullity. v. Mendoza, holding that there was no need for such declaration of
Hence, the accused did not commit bigamy when he married for the third nullity. 
time. This ruling was affirmed by the Court in People v. Aragon,[12]
which involved substantially the same facts.  In Domingo v. CA,[17] the issue raised was whether a judicial declaration
of nullity was still necessary for the recovery and the separation of
But in subsequent cases, the Court impressed the need for a judicial properties of erstwhile spouses. Ruling in the affirmative, the Court
declaration of nullity. In Vda de Consuegra v. GSIS,[13] Jose Consuegra declared: "The Family Code has settled once and for all the conflicting
married for the second time while the first marriage was still subsisting. jurisprudence on the matter. A declaration of the absolute nullity of a
Upon his death, the Court awarded one half of the proceeds of his marriage is now explicitly required either as a cause of action or a ground
retirement benefits to the first wife and the other half to the second wife for defense; in fact, the requirement for a declaration of absolute nullity of
and her children, notwithstanding the manifest nullity of the second a marriage is also for the protection of the spouse who, believing that his
marriage. It held: "And with respect to the right of the second wife, this or her marriage is illegal and void, marries again. With the judicial
Court observes that although the second marriage can be presumed to be declaration of the nullity of his or her first marriage, the person who
void ab initio as it was celebrated while the first marriage was still marries again cannot be charged with bigamy."[18] 
subsisting, still there is need for judicial declaration of such nullity." 
Unlike Mendoza and Aragon, Domingo as well as the other cases herein
In Tolentino v. Paras[14] however, the Court again held that judicial cited was not a criminal prosecution for bigamy. Nonetheless, Domingo
declaration of nullity of a void marriage was not necessary. In that case, a underscored the need for a judicial declaration of nullity of a void
man married twice. In his Death Certificate, his second wife was named as

14
marriage on the basis of a new provision of the Family Code, which came "[Article 40] is also in line with the recent decisions of the
into effect several years after the promulgation of Mendoza and Aragon.  Supreme Court that the marriage of a person may be null and void
but there is need of a judicial declaration of such fact before that
In Mendoza and Aragon, the Court relied on Section 29 of Act No. 3613 person can marry again; otherwise, the second marriage will also
(Marriage Law), which provided:  be void (Wiegel v. Sempio-Diy, Aug. 19/86, 143 SCRA 499, Vda.
De Consuegra v. GSIS, 37 SCRA 315). This provision changes the
"Illegal marriages.-Any marriage subsequently contracted by any person old rule that where a marriage is illegal and uoid from its
during the lifetime of the first spouse shall be illegal and uoid from its performance, no judicial decree is necessary to establish its validity
performance, unless:  (People v. Mendoza, 95 Phil. 843; People v. Aragon, 100 Phil.
1033).[20] 
(a) The first marriage was annulled or dissolved; 
In this light, the statutory mooring of the ruling in Mendoza and
(b) The first spouse had been absent for seven consecutive years at Aragon -that there is no need for a judicial declaration of nullity of
the time of the second marriage without the spouse present having a void marriage - has been cast aside by Article 40 of the Family
news of the absentee being alive, or the absentee being generally Code. Such declaration is not necessary before one can contract a
considered as dead and believed to be so by the spouse present at second marriage. Absent that declaration, we hold that one may be
the time of contracting such subsequent marriage, the marriage as charged with and convicted of bigamy. 
contracted being valid in either case until declared null and void
by a competent court."  The present ruling is consistent with our pronouncement in Terre
v. Terre,"[21] which involved an administrative Complaint against
The Court held in those two cases that the said provision "plainly makes a a lawyer for marrying twice. In rejecting the lawyer's argument
subsequent marriage contracted by any person during the lifetime of his that he was free to enter into a second marriage because the first
first spouse illegal and void from its performance, and no judicial decree is one was void ab initio, the Court ruled: "for purposes of
necessary to establish its invalidity, as distinguished from mere annulable determining whether a person is legally free to contract a second
marriages."[19]  marriage, a judicial declaration that the first marriage was null
and void ab initio is essential." The Court further noted that the
The provision appeared in substantially the same form under Article 83 of said rule was "cast into statutory form by Article 40 of the Family
the 1950 Civil Code and Article 41 of the Family Code. However, Article Code." Significantly, it observed that the second marriage,
40 of the Family Code, a new provision, expressly requires a judicial contracted without a judicial declaration that the first marriage
declaration of nullity of the previous marriage, as follows:  was void, was "bigamous and criminal in character." 

"ART. 40. The absolute nullity of a previous marriage may be invoked for Moreover, Justice Reyes, an authority in Criminal Law whose earlier work
purposes of remarriage on the basis solely of a final judgment declaring was cited by petitioner, changed his view on the subject in view of Article
such marriage void." 
40 of the Family Code and wrote in 1993 that a person must first obtain a
judicial declaration of the nullity of a void marriage before contracting a
In view of this provision, Domingo stressed that a final judgment
subsequent marriage:[22] 
declaring such marriage void was necessary. Verily, the Family Code and
Domingo affirm the earlier ruling in Wiegel. 
"It is now settled that the fact that the first marriage is void from
the beginning is not a defense in a bigamy charge. As with a
Thus, a Civil Law authority and member of the Civil Code Revision
voidable marriage, there must be a judicial declaration of the
Commitee has observed: 
nullity of a marriage before contracting the second marriage.

15
 Article 40 of the Family Code states that x x x. The Code
Commission believes that the parties to a marriage should not be "Indeed, the claim of Consuelo Tan that she was not aware of his previous
allowed to assume that their marriage is void, even if such is the marriage does not inspire belief, especially as she had seen that Dr.
Mercado had two (2) children with him. We are convinced that she took
fact, but must first secure a judicial declaration of nullity of their
the plunge anyway, relying on the fact that the first wife would no longer
marriage before they should be allowed to marry again. x x x."  return to Dr. Mercado, she being by then already living with another
man. 
In the instant case, petitioner contracted a second marriage although
there was yet no judicial declaration of nullity of his first marriage. In fact, "Consuelo Tan can therefore not claim damages in this case where she was
he instituted the Petition to have the first marriage declared void only fully conscious of the consequences of her act. She should have known
that she would suffer humiliation in the event the truth [would] come out,
after complainant had filed a letter-complaint charging him with bigamy. as it did in this case, ironically because of her personal instigation. If there
By contracting a second marriage while the first was still subsisting, he are indeed damages caused to her reputation, they are of her own willful
committed the acts punishable under Article 349 of the Revised Penal making."[25] 
Code. 
WHEREFORE, the Petition is DENIED and the assailed Decision
That he subsequently obtained a judicial declaration of the nullity of the AFFIRMED. Costs against petitioner. SO ORDERED. 
first marriage was immaterial. To repeat, the crime had already been
consummated by then. Moreover, his view effectively encourages delay in
the prosecution of bigamy cases; 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. 

Under the circumstances of the present case, he is guilty of the charge

against him. 

Damages 

In her Memorandum, respondent prays that the Court set aside the ruling
of the Court of Appeals insofar as it denied her claim of damages and
attorney's fees.[23] 

Her prayer has no merit. She did not appeal the ruling of the CA against
her; hence, she cannot obtain affirmative relief from this Court.[24] In
any event, we find no reason to reverse or set aside the pertinent ruling of
the CA on this point, which we quote hereunder: 

"We are convinced from the totality of the evidence presented in this case
that Consuelo Tan is not the innocent victim that she claims to be; she was
well aware of the existence of the previous marriage when she contracted
matrimony with Dr. Mercado. The testimonies of the defense witnesses
prove this, and we find no reason to doubt said testimonies. 

x x x x x 

16
 SUSAN NICDAO CARINO, petitioner, vs. SUSAN YEE CARINO, petitioner failed to file her answer, prompting the trial court to declare her
respondent. in default. 
 
G.R. No. 132529 | 2001-02-02 Respondent Susan Yee admitted that her marriage to the deceased took
place during the subsistence of, and without first obtaining a judicial
YNARES-SANTIAGO, J.:
declaration of nullity of, the marriage between petitioner and the
 
deceased. She, however, claimed that she had no knowledge of the
The issue for resolution in the case at bar hinges on the validity of the two
previous marriage and that she became aware of it only at the funeral of
marriages contracted by the deceased SPO4 Santiago S. Cariño, whose
the deceased, where she met petitioner who introduced herself as the wife
"death benefits" is now the subject of the controversy between the two
of the deceased. To bolster her action for collection of sum of money,
Susans whom he married. 
respondent contended that the marriage of petitioner and the deceased is
 
void ab initio because the same was solemnized without the required
Before this Court is a petition for review on certiorari seeking to set aside
marriage license. In support thereof, respondent presented: 1) the
the decision1  of the Court of Appeals in CA-G.R. CV No. 51263, which
marriage certificate of the deceased and the petitioner which bears no
affirmed in toto the decision2 of the Regional Trial Court of Quezon City,
marriage license number;5   and 2) a certification dated March 9, 1994,
Branch 87, in Civil Case No. Q-93-18632. 
from the Local Civil Registrar of San Juan, Metro Manila, which reads - 
 
 
During the lifetime of the late SPO4 Santiago S. Cariño, he contracted two This is to certify that this Office has no record of marriage license of the
marriages, the first was on June 20, 1969, with petitioner Susan Nicdao spouses SANTIAGO CARINO (sic) and SUSAN NICDAO, who are married in
Cariño (hereafter referred to as Susan Nicdao), with whom he had two this municipality on June 20, 1969. Hence, we cannot issue as requested a
offsprings, namely, Sahlee and Sandee Cariño; and the second was on true copy or transcription of Marriage License number from the records of
November 10, 1992, with respondent Susan Yee Cariño (hereafter this archives. 
 
referred to as Susan Yee), with whom he had no children in their almost
This certification is issued upon the request of Mrs. Susan Yee Cariño for
ten year cohabitation starting way back in 1982.  whatever legal purpose it may serve.6 
   
In 1988, SPO4 Santiago S. Cariño became ill and bedridden due to On August 28, 1995, the trial court ruled in favor of respondent, Susan
diabetes complicated by pulmonary tuberculosis. He passed away on Yee, holding as follows: 
November 23, 1992, under the care of Susan Yee, who spent for his  
medical and burial expenses. Both petitioner and respondent filed claims WHEREFORE, the defendant is hereby ordered to pay the plaintiff the
for monetary benefits and financial assistance pertaining to the deceased sum of P73,000.00, half of the amount which was paid to her in the form
from various government agencies. Petitioner Susan Nicdao was able to of death benefits arising from the death of SPO4 Santiago S. Cariño, plus
attorney's fees in the amount of P5,000.00, and costs of suit. 
collect a total of P146,000.00 from "MBAI, PCCUI, Commutation,  
NAPOLCOM, [and] Pag-ibig,"3    while respondent Susan Yee received a IT IS SO ORDERED.7 
total of P21,000.00 from "GSIS Life, Burial (GSIS) and burial (SSS)."4 
  On appeal by petitioner to the Court of Appeals, the latter affirmed in toto
On December 14, 1993, respondent Susan Yee filed the instant case for the decision of the trial court. Hence, the instant petition, contending
collection of sum of money against petitioner Susan Nicdao praying, inter that:
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 I. 
as "death benefits" which she (petitioner) received from "MBAI, PCCUI, THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE
Commutation, NAPOLCOM, [and] Pag-ibig." Despite service of summons, FINDINGS OF THE LOWER COURT THAT VDA. DE CONSUEGRA VS. GSIS IS
APPLICABLE TO THE CASE AT BAR. 

17
  In the case at bar, there is no question that the marriage of petitioner and
II.  the deceased does not fall within the marriages exempt from the license
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN APPLYING EQUITY
requirement. A marriage license, therefore, was indispensable to the
IN THE INSTANT CASE INSTEAD OF THE CLEAR AND UNEQUIVOCAL MANDATE
OF THE FAMILY CODE.  validity of their marriage. This notwithstanding, the records reveal that
  the marriage contract of petitioner and the deceased bears no marriage
III.  license number and, as certified by the Local Civil Registrar of San Juan,
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT FINDING THE Metro Manila, their office has no record of such marriage license.
CASE OF VDA. DE CONSUEGRA VS GSIS TO HAVE BEEN MODIFIED, AMENDED In  Republic v. Court of Appeals,15    the Court held that such a
AND EVEN ABANDONED BY THE ENACTMENT OF THE FAMILY CODE.8 
certification is adequate to prove the non-issuance of a marriage license.
 
Absent any circumstance of suspicion, as in the present case, the
Under Article 40 of the Family Code, the absolute nullity of a previous
certification issued by the local civil registrar enjoys probative value, he
marriage may be invoked for purposes of remarriage on the basis solely of
being the officer charged under the law to keep a record of all data
a final judgment declaring such previous marriage void. Meaning, where
relative to the issuance of a marriage license. 
the absolute nullity of a previous marriage is sought to be invoked for
 
purposes of contracting a second marriage, the sole basis acceptable in
Such being the case, the presumed validity of the marriage of petitioner
law, for said projected marriage to be free from legal infirmity, is a final
and the deceased has been sufficiently overcome. It then became the
judgment declaring the previous marriage void.9
burden of petitioner to prove that their marriage is valid and that they
 
secured the required marriage license. Although she was declared in
However, for purposes other than remarriage, no judicial action is
default before the trial court, petitioner could have squarely met the issue
necessary to declare a marriage an absolute nullity. For other purposes,
and explained the absence of a marriage license in her pleadings before
such as but not limited to the determination of heirship, legitimacy or
the Court of Appeals and this Court. But petitioner conveniently avoided
illegitimacy of a child, settlement of estate, dissolution of property regime,
the issue and chose to refrain from pursuing an argument that will put her
or a criminal case for that matter, the court may pass upon the validity of
case in jeopardy. Hence, the presumed validity of their marriage cannot
marriage even after the death of the parties thereto, and even in a suit not
stand. 
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
It is beyond cavil, therefore, that the marriage between petitioner Susan
must be adduced, testimonial or documentary, to prove the existence of
Nicdao and the deceased, having been solemnized without the necessary
grounds rendering such a previous marriage an absolute nullity. These
marriage license, and not being one of the marriages exempt from the
need not be limited solely to an earlier final judgment of a court declaring
marriage license requirement, is undoubtedly void ab initio. 
such previous marriage void.11 
 
 
It does not follow from the foregoing disquisition, however, that since the
It is clear therefore that the Court is clothed with sufficient authority to
marriage of petitioner and the deceased is declared void ab initio, the
pass upon the validity of the two marriages in this case, as the same is
"death benefits" under scrutiny would now be awarded to respondent
essential to the determination of who is rightfully entitled to the subject
Susan Yee. To reiterate, under Article 40 of the Family Code, for purposes
"death benefits" of the deceased. 
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
Under the Civil Code, which was the law in force when the marriage of
second marriage, otherwise, the second marriage would also be void. 
petitioner Susan Nicdao and the deceased was solemnized in 1969, a valid
 
marriage license is a requisite of marriage,12  and the absence thereof,
Accordingly, the declaration in the instant case of nullity of the previous
subject to certain exceptions,13 renders the marriage void ab initio.14
marriage of the deceased and petitioner Susan Nicdao does not validate
 
the second marriage of the deceased with respondent Susan Yee. The fact

18
remains that their marriage was solemnized without first obtaining a Hence, they are not owned in common by respondent and the deceased,
judicial decree declaring the marriage of petitioner Susan Nicdao and the but belong to the deceased alone and respondent has no right whatsoever
deceased void. Hence, the marriage of respondent Susan Yee and the to claim the same. By intestate succession, the said "death benefits" of the
deceased is, likewise, void ab initio.  deceased shall pass to his legal heirs. And, respondent, not being the legal
  wife of the deceased is not one of them. 
One of the effects of the declaration of nullity of marriage is the  
separation of the property of the spouses according to the applicable As to the property regime of petitioner Susan Nicdao and the deceased,
property regime.16  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
Considering that the two marriages are void ab initio, the applicable contract marriage, but whose marriage is nonetheless void for other
property regime would not be absolute community or conjugal reasons, like the absence of a marriage license. Article 147 of the Family
partnership of property, but rather, be governed by the provisions of Code reads - 
Articles 147 and 148 of the Family Code on "Property Regime of Unions  
Without Marriage."  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
Under Article 148 of the Family Code, which refers to the property regime
shall be owned by them in equal shares and the property acquired by both
of bigamous marriages, adulterous relationships, relationships in a state of of them through their work or industry shall be governed by the rules on
concubine, relationships where both man and woman are married to other co-ownership. 
persons, multiple alliances of the same married man,17 -  
  In the absence of proof to the contrary, properties acquired while they
"... Only the properties acquired by both of the parties through their lived together shall be presumed to have been obtained by their joint
actual joint contribution of money, property, or industry shall be owned efforts, work or industry, and shall be owned by them in equal shares. For
by them in common in proportion to their respective contributions ..."
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
In this property regime, the properties acquired by the parties through
jointly in the acquisition thereof if the former's efforts consisted in the
their actual joint contribution shall belong to the co-ownership. Wages
care and maintenance of the family and of the household.
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
xxxxxxxxx
household, or spiritual or moral inspiration, are excluded in this
 
regime.Considering that the marriage of respondent Susan Yee and the
When only one of the parties to a void marriage is in good faith, the share
deceased is a bigamous marriage, having been solemnized during the
of the party in bad faith in the co-ownership shall be forfeited in favor of
subsistence of a previous marriage then presumed to be valid (between
their common children. In case of default of or waiver by any or all of the
petitioner and the deceased), the application of Article 148 is therefore in
common children or their descendants, each vacant share shall belong to
order. 
the respective surviving descendants. In the absence of descendants, such
 
share shall belong to the innocent party. In all cases, the forfeiture shall
The disputed P146,000.00 from MBAI [AFP Mutual Benefit Association,
take place upon termination of the cohabitation.
Inc.], NAPOLCOM, Commutation, Pag-ibig, and PCCUI, are clearly
 
renumerations, incentives and benefits from governmental agencies
In contrast to Article 148, under the foregoing article, wages and salaries
earned by the deceased as a police officer. Unless respondent Susan Yee
earned by either party during the cohabitation shall be owned by the
presents proof to the contrary, it could not be said that she contributed
parties in equal shares and will be divided equally between them, even if
money, property or industry in the acquisition of these monetary benefits.
only one party earned the wages and the other did not contribute thereto.

19
19    Conformably, even if the disputed "death benefits" were earned by only for purposes of remarriage. That is, if a party who is previously
the deceased alone as a government employee, Article 147 creates a co- married wishes to contract a second marriage, he or she has to obtain first
ownership in respect thereto, entitling the petitioner to share one-half a judicial decree declaring the first marriage void, before he or she could
thereof. contract said second marriage, otherwise the second marriage would be
void.
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 The same rule applies even if the first marriage is patently void because
subject "death benefits" under scrutiny shall go to the petitioner as her the parties are not free to determine for themselves the validity or
share in the property regime, and the other half pertaining to the invalidity or their marriage. However, for purposes other than to remarry,
deceased shall pass by, intestate succession, to his legal heirs, namely, his like for filing a case for collection of sum of money anchored on a
children with Susan Nicdao.  marriage claimed to be valid, no prior and separate judicial declaration of
  nullity is necessary.
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, All that a party has to do is to present evidence, testimonial or
20  where the Court awarded one-half of the retirement benefits of the documentary, that would prove that the marriage from which his or her
deceased to the first wife and the other half, to the second wife, holding rights flow is in fact valid. Thereupon, the court, if material to the
that:  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
"... Since the defendant's first marriage has not been dissolved or declared accordance with the applicable laws and jurisprudence. Thus, in Niñal v.
void the conjugal partnership established by that marriage has not ceased. Bayadog,23  the Court explained: 
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 [T]he court may pass upon the validity of marriage even in a suit not
in a still subsisting marriage or as such putative heir she has an interest in directly instituted to question the same so long as it is essential to the
the husband's share in the property here in dispute...." And with respect to determination of the case. This is without prejudice to any issue that may
the right of the second wife, this Court observed that although the second arise in the case. When such need arises, a final judgment of declaration
marriage can be presumed to be void ab initio as it was celebrated while of nullity is necessary even if the purpose is other than to remarry. The
the first marriage was still subsisting, still there is need for judicial
declaration of such nullity. And inasmuch as the conjugal partnership
clause "on the basis of a final judgment declaring such previous marriage
formed by the second marriage was dissolved before judicial declaration of void" in Article 40 of the Family Code connoted that such final judgment
its nullity, "the only just and equitable solution in this case would be to need not be obtained only for purpose of remarriage. 
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 WHEREFORE, the petition is GRANTED, and the decision of the Court of
pertaining to the conjugal partnership of the first marriage."21 
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
It should be stressed, however, that the aforecited decision is premised on
the sum of P73,000.00 plus attorney's fees in the amount of P5,000.00,
the rule which requires a prior and separate judicial declaration of nullity
is  REVERSED  and  SET ASIDE. The complaint in Civil Case No.
of marriage. This is the reason why in the said case, the Court determined
Q-93-18632, is hereby DISMISSED. No pronouncement as to costs.
the rights of the parties in accordance with their existing property
regime. 
SO ORDERED.
 
In  Domingo v. Court of Appeals,22    however, the Court, construing
Article 40 of the Family Code, clarified that a prior and separate
declaration of nullity of a marriage is an all important condition precedent
20
 VICTORIA S. JARILLO, Petitioner, versus PEOPLE OF THE On May 4, 1975, Victoria Jarillo and Rafael Alocillo again celebrated
PHILIPPINES, Respondent. marriage in a church wedding ceremony before Rev. Angel Resultay in San
Carlos City, Pangasinan (pp. 25-26, TSN dated November 17, 2000). Out
G.R. No. 164435 | 2009-09-29 of the marital union, appellant begot a daughter, Rachelle J. Alocillo on
October 29, 1975 (Exhs. F, R, R-1).
PERALTA, J.:
Appellant Victoria Jarillo thereafter contracted a subsequent marriage
This resolves the Petition for Review on Certiorari under Rule 45 of the
with Emmanuel Ebora Santos Uy, at the City Court of Pasay City, Branch 1,
Rules of Court, praying that the Decision[1] of the Court of Appeals (CA),
before then Hon. Judge Nicanor Cruz on November 26, 1979 (Exhs. D, J,
dated July 21, 2003, and its Resolution[2] dated July 8, 2004, be reversed
J-1, Q, Q-1, pp. 15-18, TSN dated November 22, 2000).
and set aside.
On April 16, 1995, appellant and Emmanuel Uy exchanged marital vows
On May 31, 2000, petitioner was charged with Bigamy before the
anew in a church wedding in Manila (Exh. E).
Regional Trial Court (RTC) of Pasay City, Branch 117 under the following
Information in Criminal Case No. 00-08-11:
In 1999, Emmanuel Uy filed against the appellant Civil Case No.
99-93582 for annulment of marriage before the Regional Trial Court of
INFORMATION
Manila.
The undersigned Assistant City Prosecutor accuses VICTORIA S.
Thereafter, appellant Jarillo was charged with bigamy before the Regional
JARILLO of the crime of BIGAMY, committed as follows:
Trial Court of Pasay City x x x.
xxxx
That on or about the 26th day of November 1979, in Pasay
City, Metro Manila, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused, Parenthetically, accused-appellant filed against Alocillo, on October 5,
Victoria S. Jarillo, being previously united in lawful 2000, before the Regional Trial Court of Makati, Civil Case No. 00-1217,
marriage with Rafael M. Alocillo, and without the said for declaration of nullity of their marriage.
marriage having been legally dissolved, did then and there
willfully, unlawfully and feloniously contract a second
marriage with Emmanuel Ebora Santos Uy which marriage
On July 9, 2001, the court a quo promulgated the assailed decision, the
was only discovered on January 12, 1999. dispositive portion of which states:

Contrary to law. WHEREFORE, upon the foregoing premises, this court hereby finds
accused Victoria Soriano Jarillo GUILTY beyond reasonable doubt of the
On July 14, 2000, petitioner pleaded not guilty during arraignment and, crime of BIGAMY.
thereafter, trial proceeded.
Accordingly, said accused is hereby sentenced to suffer an indeterminate
penalty of SIX (6) YEARS of prision correccional, as minimum, to TEN
The undisputed facts, as accurately summarized by the CA, are as follows. (10) YEARS of prision mayor, as maximum.

On May 24, 1974, Victoria Jarillo and Rafael Alocillo were married in a This court makes no pronouncement on the civil aspect of this case, such
civil wedding ceremony solemnized by Hon. Monico C. Tanyag, then as the nullity of accused's bigamous marriage to Uy and its effect on their
children and their property. This aspect is being determined by the
Municipal Mayor of Taguig, Rizal (Exhs. A, A-1, H, H-1, H-2, O, O-1, pp. Regional Trial Court of Manila in Civil Case No. 99-93582.
20-21, TSN dated November 17, 2000).
Costs against the accused.

21
The motion for reconsideration was likewise denied by the same court in
that assailed Order dated 2 August 2001.[3] V.2. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN
AFFIRMING THE CONVICTION OF PETITIONER FOR THE CRIME OF
For her defense, petitioner insisted that (1) her 1974 and 1975 marriages BIGAMY DESPITE THE SUPERVENING PROOF THAT THE FIRST TWO
to Alocillo were null and void because Alocillo was allegedly still married MARRIAGES OF PETITIONER TO ALOCILLO HAD BEEN DECLARED BY
to a certain Loretta Tillman at the time of the celebration of their FINAL JUDGMENT NULL AND VOID AB INITIO.
marriage; (2) her marriages to both Alocillo and Uy were null and void for
lack of a valid marriage license; and (3) the action had prescribed, since V.3. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT
Uy knew about her marriage to Alocillo as far back as 1978. CONSIDERING THAT THERE IS A PENDING ANNULMENT OF MARRIAGE
AT THE REGIONAL TRIAL COURT BRANCH 38 BETWEEN EMMANUEL
On appeal to the CA, petitioner's conviction was affirmed in toto. In its SANTOS AND VICTORIA S. JARILLO.
Decision dated July 21, 2003, the CA held that petitioner committed
bigamy when she contracted marriage with Emmanuel Santos Uy because, V.4. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT
at that time, her marriage to Rafael Alocillo had not yet been declared CONSIDERING THAT THE INSTANT CASE OF BIGAMY HAD ALREADY
null and void by the court. This being so, the presumption is, her previous PRESCRIBED.
marriage to Alocillo was still existing at the time of her marriage to Uy.
The CA also struck down, for lack of sufficient evidence, petitioner's V.5. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT
contentions that her marriages were celebrated without a marriage CONSIDERING THAT THE MARRIAGE OF VICTORIA JARILLO AND
license, and that Uy had notice of her previous marriage as far back as EMMANUEL SANTOS UY HAS NO VALID MARRIAGE LICENSE.
1978.
V.6. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT
In the meantime, the RTC of Makati City, Branch 140, rendered a Decision ACQUITTING THE PETITIONER BUT IMPOSED AN ERRONEOUS
dated March 28, 2003, declaring petitioner's 1974 and 1975 marriages to P E N A LT Y U N D E R T H E R E V I S E D P E N A L C O D E A N D T H E
Alocillo null and void ab initio on the ground of Alocillo's psychological INDETERMINATE SENTENCE LAW.
incapacity. Said decision became final and executory on July 9, 2003. In
her motion for reconsideration, petitioner invoked said declaration of The first, second, third and fifth issues, being closely related, shall be
nullity as a ground for the reversal of her conviction. However, in its discussed jointly. It is true that right after the presentation of the
Resolution dated July 8, 2004, the CA, citing Tenebro v. Court of Appeals, prosecution evidence, petitioner moved for suspension of the proceedings
[4] denied reconsideration and ruled that "[t]he subsequent declaration of on the ground of the pendency of the petition for declaration of nullity of
nullity of her first marriage on the ground of psychological incapacity, petitioner's marriages to Alocillo, which, petitioner claimed involved a
while it retroacts to the date of the celebration of the marriage insofar as prejudicial question. In her appeal, she also asserted that the petition for
the vinculum between the spouses is concerned, the said marriage is not declaration of nullity of her marriage to Uy, initiated by the latter, was a
without legal consequences, among which is incurring criminal liability ground for suspension of the proceedings. The RTC denied her motion for
for bigamy."[5] suspension, while the CA struck down her arguments. In Marbella-Bobis v.
Bobis,[6] the Court categorically stated that:
Hence, the present petition for review on certiorari under Rule 45 of the
Rules of Court where petitioner alleges that: x x x as ruled in Landicho v. Relova, he who contracts a second marriage
before the judicial declaration of nullity of the first marriage assumes the
risk of being prosecuted for bigamy, and in such a case the criminal case
V.1. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN
may not be suspended on the ground of the pendency of a civil case for
PROCEEDING WITH THE CASE DESPITE THE PENDENCY OF A CASE declaration of nullity. x x x
WHICH IS PREJUDICIAL TO THE OUTCOME OF THIS CASE.

22
 xxxx declared null and void by a court of competent jurisdiction, was deemed
valid and subsisting. Neither would a judicial declaration of the nullity of
x x x The reason is that, without a judicial declaration of its nullity, the
petitioner's marriage to Uy make any difference.[10] As held in Tenebro,
first marriage is presumed to be subsisting. In the case at bar, respondent
was for all legal intents and purposes regarded as a married man at the "[s]ince a marriage contracted during the subsistence of a valid marriage
time he contracted his second marriage with petitioner. Against this legal is automatically void, the nullity of this second marriage is not per se an
backdrop, any decision in the civil action for nullity would not erase the argument for the avoidance of criminal liability for bigamy. x x x
fact that respondent entered into a second marriage during the
subsistence of a first marriage. Thus, a decision in the civil case is not A plain reading of [Article 349 of the Revised Penal Code], therefore,
essential to the determination of the criminal charge. It is, therefore, not
a prejudicial question. x x x[7]
would indicate that the provision penalizes the mere act of contracting a
second or subsequent marriage during the subsistence of a valid
The foregoing ruling had been reiterated in Abunado v. People,[8] where marriage."[11]
it was held thus:
Petitioner's defense of prescription is likewise doomed to fail.
The subsequent judicial declaration of the nullity of the first marriage was
immaterial because prior to the declaration of nullity, the crime had Under Article 349 of the Revised Penal Code, bigamy is punishable by
already been consummated. Moreover, petitioner's assertion would only prision mayor, which is classified under Article 25 of said Code as an
delay the prosecution of bigamy cases considering that an accused could afflictive penalty. Article 90 thereof provides that "[c]rimes punishable by
simply file a petition to declare his previous marriage void and invoke the other afflictive penalties shall prescribe in fifteen years," while Article 91
pendency of that action as a prejudicial question in the criminal case. We states that "[t]he period of prescription shall commence to run from the
cannot allow that. day on which the crime is discovered by the offended party, the
authorities, or their agents x x x ."
The outcome of the civil case for annulment of petitioner's marriage to
[private complainant] had no bearing upon the determination of Petitioner asserts that Uy had known of her previous marriage as far back
petitioner's innocence or guilt in the criminal case for bigamy, because all as 1978; hence, prescription began to run from that time. Note that the
that is required for the charge of bigamy to prosper is that the first party who raises a fact as a matter of defense has the burden of proving it.
marriage be subsisting at the time the second marriage is contracted. The defendant or accused is obliged to produce evidence in support of its
defense; otherwise, failing to establish the same, it remains self-serving.
Thus, under the law, a marriage, even one which is void or voidable, shall [12] Thus, for petitioner's defense of prescription to prosper, it was
be deemed valid until declared otherwise in a judicial proceeding. In this incumbent upon her to adduce evidence that as early as the year 1978, Uy
case, even if petitioner eventually obtained a declaration that his first already obtained knowledge of her previous marriage.
marriage was void ab initio, the point is, both the first and the second
marriage were subsisting before the first marriage was annulled.[9] A close examination of the records of the case reveals that petitioner
utterly failed to present sufficient evidence to support her allegation.
For the very same reasons elucidated in the above-quoted cases, Petitioner's testimony that her own mother told Uy in 1978 that she
petitioner's conviction of the crime of bigamy must be affirmed. The (petitioner) is already married to Alocillo does not inspire belief, as it is
subsequent judicial declaration of nullity of petitioner's two marriages to totally unsupported by any corroborating evidence. The trial court
Alocillo cannot be considered a valid defense in the crime of bigamy. The correctly observed that:
moment petitioner contracted a second marriage without the previous one
having been judicially declared null and void, the crime of bigamy was x x x She did not call to the witness stand her mother - the person who
already consummated because at the time of the celebration of the second allegedly actually told Uy about her previous marriage to Alocillo. It must
marriage, petitioner's marriage to Alocillo, which had not yet been

23
be obvious that without the confirmatory testimony of her mother, the However, for humanitarian purposes, and considering that petitioner's
attribution of the latter of any act which she allegedly did is hearsay.[13] marriage to Alocillo has after all been declared by final judgment[17] to
be void ab initio on account of the latter's psychological incapacity, by
As ruled in Sermonia v. Court of Appeals,[14] "the prescriptive period for reason of which, petitioner was subjected to manipulative abuse, the
the crime of bigamy should be counted only from the day on which the Court deems it proper to reduce the penalty imposed by the lower courts.
said crime was discovered by the offended party, the authorities or their Thus, petitioner should be sentenced to suffer an indeterminate penalty of
[agents]," as opposed to being counted from the date of registration of the imprisonment from Two (2) years, Four (4) months and One (1) day of
bigamous marriage.[15] Since petitioner failed to prove with certainty prision correccional, as minimum, to 8 years and 1 day of prision mayor,
that the period of prescription began to run as of 1978, her defense is, as maximum.
therefore, ineffectual.
IN VIEW OF THE FOREGOING, the petition is PARTLY GRANTED. The
Finally, petitioner avers that the RTC and the CA imposed an erroneous Decision of the Court of Appeals dated July 21, 2003, and its Resolution
penalty under the Revised Penal Code. Again, petitioner is mistaken. dated July 8, 2004 are hereby MODIFIED as to the penalty imposed, but
AFFIRMED in all other respects. Petitioner is sentenced to suffer an
The Indeterminate Sentence Law provides that the accused shall be indeterminate penalty of imprisonment from Two (2) years, Four (4)
sentenced to an indeterminate penalty, the maximum term of which shall months and One (1) day of prision correccional, as minimum, to Eight (8)
be that which, in view of the attending circumstances, could be properly years and One (1) day of prision mayor, as maximum.
imposed under the Revised Penal Code, and the minimum of which shall
be within the range of the penalty next lower than that prescribed by the SO ORDERED.
Code for the offense, without first considering any modifying
circumstance attendant to the commission of the crime.

The Indeterminate Sentence Law leaves it entirely within the sound

discretion of the court to determine the minimum penalty, as long as it is
anywhere within the range of the penalty next lower without any
reference to the periods into which it might be subdivided. The modifying
circumstances are considered only in the imposition of the maximum term
of the indeterminate sentence.[16]

Applying the foregoing rule, it is clear that the penalty imposed on

petitioner is proper. Under Article 349 of the Revised Penal Code, the
imposable penalty for bigamy is prision mayor. The penalty next lower is
prision correccional, which ranges from 6 months and 1 day to 6 years.
The minimum penalty of six years imposed by the trial court is, therefore,
correct as it is still within the duration of prision correccional. There being
no mitigating or aggravating circumstances proven in this case, the
prescribed penalty of prision mayor should be imposed in its medium
period, which is from 8 years and 1 day to 10 years. Again, the trial court
correctly imposed a maximum penalty of 10 years.

24
 ISIDRO ABLAZA, Petitioner, versus REPUBLIC OF THE PHILIPPINES, is not a party to the marriage (contracted between Cresenciano Ablaza
Respondent and Leonila Nonato on December 26, 1949 and solemnized by Rev. Fr.
Eusebio B. Calolot).
G.R. No. 158298 | 2010-08-11 SO ORDERED.

BERSAMIN, J.: The petitioner seasonably filed a motion for reconsideration, but the RTC
denied the motion for reconsideration on November 14, 2000.
Whether a person may bring an action for the declaration of the absolute
nullity of the marriage of his deceased brother solemnized under the Ruling of the Court of Appeals
regime of the old Civil Code is the legal issue to be determined in this
appeal brought by the petitioner whose action for that purpose has been The petitioner appealed to the Court of Appeals (CA), assigning the lone
dismissed by the lower courts on the ground that he, not being a party in error that:
the assailed marriage, had no right to bring the action.
The trial court erred in dismissing the petition for being filed out of time
Antecedents and that the petitioner is not a party to the marriage.

On October 17, 2000, the petitioner filed in the Regional Trial Court In its decision dated January 30, 2003,[4] however, the CA affirmed the
(RTC) in Cataingan, Masbate a petition for the declaration of the absolute dismissal order of the RTC, thus:
nullity of the marriage contracted on December 26, 1949 between his late
brother Cresenciano Ablaza and Leonila Honato.[1] The case was While an action to declare the nullity of a marriage considered void from
the beginning does not prescribe, the law nonetheless requires that the
docketed as Special Case No. 117 entitled In Re: Petition for Nullification
same action must be filed by the proper party, which in this case should
of Marriage Contract between Cresenciano Ablaza and Leonila Honato; be filed by any of the parties to the marriage. In the instant case, the
Isidro Ablaza, petitioner. petition was filed by Isidro Ablaza, a brother of the deceased-spouse, who
is not a party to the marriage contracted by Cresenciano Ablaza and
The petitioner alleged that the marriage between Cresenciano and Leonila Leonila Honato. The contention of petitioner-appellant that he is
had been celebrated without a marriage license, due to such license being considered a real party in interest under Section 2, Rule 3 of the 1997
Rules of Civil Procedure, as he stands to be benefited or injured by the
issued only on January 9, 1950, thereby rendering the marriage void ab judgment in the suit, is simply misplaced. Actions for annulment of
initio for having been solemnized without a marriage license. He insisted marriage will not prosper if persons other than those specified in the law
that his being the surviving brother of Cresenciano who had died without file the case.
any issue entitled him to one-half of the real properties acquired by
Cresenciano before his death, thereby making him a real party in interest; Certainly, a surviving brother of the deceased spouse is not the proper
party to file the subject petition. More so that the surviving wife, who
and that any person, himself included, could impugn the validity of the
stands to be prejudiced, was not even impleaded as a party to said case.
marriage between Cresenciano and Leonila at any time, even after the
death of Cresenciano, due to the marriage being void ab initio.[2] WHEREFORE, finding no reversible error therefrom, the Orders now on
appeal are hereby AFFIRMED. Costs against the petitioner-appellant.
Ruling of the RTC SO ORDERED.[5]

On October 18, 2000, [3] the RTC dismissed the petition, stating: Hence, this appeal.

Considering the petition for annulment of marriage filed, the Court Issues
hereby resolved to DISMISS the petition for the following reasons: 1)
petition is filed out of time (action had long prescribed) and 2) petitioner The petitioner raises the following issues:

25
 marriage may be filed solely by the husband or wife. Such limitation
I. WHETHER OR NOT THE DECISION OF THIS HONORABLE COURT OF demarcates a line to distinguish between marriages covered by the Family
APPEALS IN CA-G.R. CV. NO. 69684 AFFIRMING THE ORDER OF Code and those solemnized under the regime of the Civil Code.[9]
DISMISSAL OF THE REGIONAL TRIAL COURT, BRANCH 49 AT Specifically, A.M. No. 02-11-10-SC extends only to marriages covered by
CATAINGAN, MASBATE IN SPECIAL PROCEEDING NO. 117 IS IN the Family Code, which took effect on August 3, 1988, but, being a
ACCORDANCE WITH APPLICABLE LAWS AND JURISPRUDENCE; procedural rule that is prospective in application, is confined only to
proceedings commenced after March 15, 2003.[10]
II. WHETHER OR NOT THE DECISION OF THE HONORABLE COURT OF
APPEALS IN CA-G.R. CV NO. 69684 (SHOULD) BE REVERSED BASED ON Based on Carlos v. Sandoval,[11] the following actions for declaration of
EXECUTIVE ORDER NO. 209 AND EXISTING JURISPRUDENCE. absolute nullity of a marriage are excepted from the limitation, to wit:

The issues, rephrased, boil down to whether the petitioner is a real party 1. Those commenced before March 15, 2003, the effectivity date of
in interest in the action to seek the declaration of nullity of the marriage A.M. No. 02-11-10-SC; and
of his deceased brother.
2. Those filed vis-á  -vis marriages celebrated during the
Ruling effectivity of the Civil Code and, those celebrated under the regime
of the Family Code prior to March 15, 2003.
The petition is meritorious.
Considering that the marriage between Cresenciano and Leonila was
A valid marriage is essential in order to create the relation of husband and contracted on December 26, 1949, the applicable law was the old Civil
wife and to give rise to the mutual rights, duties, and liabilities arising out Code, the law in effect at the time of the celebration of the marriage.
of such relation. The law prescribes the requisites of a valid marriage. Hence, the rule on the exclusivity of the parties to the marriage as having
Hence, the validity of a marriage is tested according to the law in force at the right to initiate the action for declaration of nullity of the marriage
the time the marriage is contracted.[6] As a general rule, the nature of the under A.M. No. 02-11-10-SC had absolutely no application to the
marriage already celebrated cannot be changed by a subsequent petitioner.
amendment of the governing law.[7] To illustrate, a marriage between a
stepbrother and a stepsister was void under the Civil Code, but is not The old and new Civil Codes contain no provision on who can file a
anymore prohibited under the Family Code; yet, the intervening effectivity petition to declare the nullity of a marriage, and when. Accordingly, in
of the Family Code does not affect the void nature of a marriage between Niñal v. Bayadog,[12] the children were allowed to file after the death of
a stepbrother and a stepsister solemnized under the regime of the Civil their father a petition for the declaration of the nullity of their father's
Code. The Civil Code marriage remains void, considering that the validity marriage to their stepmother contracted on December 11, 1986 due to
of a marriage is governed by the law in force at the time of the marriage lack of a marriage license. There, the Court distinguished between a void
ceremony.[8] marriage and a voidable one, and explained how and when each might be
impugned, thuswise:
Before anything more, the Court has to clarify the impact to the issue
posed herein of Administrative Matter (A.M.) No. 02-11-10-SC (Rule on Jurisprudence under the Civil Code states that no judicial decree is
Declaration of Absolute Nullity of Void Marriages and Annulment of necessary in order to establish the nullity of a marriage. "A void
Voidable Marriages), which took effect on March 15, 2003. marriage does not require a judicial decree to restore the parties to
their original rights or to make the marriage void but though no
Section 2, paragraph (a), of A.M. No. 02-11-10-SC explicitly provides the sentence of avoidance be absolutely necessary, yet as well for the
limitation that a petition for declaration of absolute nullity of void sake of good order of society as for the peace of mind of all

26
concerned, it is expedient that the nullity of the marriage should It is clarified, however, that the absence of a provision in the old
be ascertained and declared by the decree of a court of competent and new Civil Codes cannot be construed as giving a license to just
jurisdiction." "Under ordinary circumstances, the effect of a void any person to bring an action to declare the absolute nullity of a
marriage, so far as concerns the conferring of legal rights upon the marriage. According to Carlos v. Sandoval,[14] the plaintiff must
parties, is as though no marriage had ever taken place. And still be the party who stands to be benefited by the suit, or the
therefore, being good for no legal purpose, its invalidity can be party entitled to the avails of the suit, for it is basic in procedural
maintained in any proceeding in which the fact of marriage may law that every action must be prosecuted and defended in the
be material, either direct or collateral, in any civil court between name of the real party in interest.[15] Thus, only the party who
any parties at any time, whether before or after the death of either can demonstrate a "proper interest" can file the action.[16]
or both the husband and the wife, and upon mere proof of the Interest within the meaning of the rule means material interest, or
facts rendering such marriage void, it will be disregarded or an interest in issue to be affected by the decree or judgment of the
treated as non-existent by the courts." It is not like a voidable case, as distinguished from mere curiosity about the question
marriage which cannot be collaterally attacked except in direct involved or a mere incidental interest. One having no material
proceeding instituted during the lifetime of the parties so that on interest to protect cannot invoke the jurisdiction of the court as
the death of either, the marriage cannot be impeached, and is plaintiff in an action. When the plaintiff is not the real party in
made good ab initio. But Article 40 of the Family Code expressly interest, the case is dismissible on the ground of lack of cause of
provides that there must be a judicial declaration of the nullity of a action.[17]
previous marriage, though void, before a party can enter into a
second marriage and such absolute nullity can be based only on a Here, the petitioner alleged himself to be the late Cresenciano's brother
final judgment to that effect. For the same reason, the law makes and surviving heir. Assuming that the petitioner was as he claimed himself
either the action or defense for the declaration of absolute nullity to be, then he has a material interest in the estate of Cresenciano that will
of marriage imprescriptible. Corollarily, if the death of either party be adversely affected by any judgment in the suit. Indeed, a brother like
would extinguish the cause of action or the ground for defense, the petitioner, albeit not a compulsory heir under the laws of succession,
then the same cannot be considered imprescriptible. has the right to succeed to the estate of a deceased brother under the
conditions stated in Article 1001 and Article 1003 of the Civil Code, as
However, other than for purposes of remarriage, no judicial action follows:
is necessary to declare a marriage an absolute nullity. For other
purposes, such as but not limited to determination of heirship, Article 1001. Should brothers and sisters or their children survive with
legitimacy or illegitimacy of a child, settlement of estate, the widow or widower, the latter shall be entitled to one half of the
inheritance and the brothers and sisters or their children to the other half.
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 Article 1003. If there are no descendants, ascendants, illegitimate
directly instituted to question the same so long as it is essential to children, or a surviving spouse, the collateral relatives shall succeed to the
the determination of the case. This is without prejudice to any entire estate of the deceased in accordance with the following articles.
issue that may arise in the case. When such need arises, a final
judgment of declaration of nullity is necessary even if the purpose Pursuant to these provisions, the presence of descendants, ascendants, or
is other than to remarry. The clause "on the basis of a final illegitimate children of the deceased excludes collateral relatives like the
judgment declaring such previous marriage void" in Article 40 of petitioner from succeeding to the deceased's estate.[18] Necessarily,
the Family Code connotes that such final judgment need not be therefore, the right of the petitioner to bring the action hinges upon a
obtained only for purpose of remarriage.[13] prior determination of whether Cresenciano had any descendants,
ascendants, or children (legitimate or illegitimate), and of whether the
petitioner was the late Cresenciano's surviving heir. Such prior

27
determination must be made by the trial court, for the inquiry thereon Rules of Court, states that neither misjoinder nor non-joinder of parties is
involves questions of fact. a ground for the dismissal of an action. The petitioner can still amend his
initiatory pleading in order to implead her, for under the same rule, such
As can be seen, both the RTC and the CA erroneously resolved the issue amendment to implead an indispensable party may be made "on motion
presented in this case. We reverse their error, in order that the substantial of any party or on (the trial court's) own initiative at any stage of the
right of the petitioner, if any, may not be prejudiced. action and on such terms as are just."

Nevertheless, we note that the petitioner did not implead Leonila, who, as WHEREFORE, the petition for review on certiorari is granted.
the late Cresenciano's surviving wife,[19] stood to be benefited or
prejudiced by the nullification of her own marriage. It is relevant to We reverse and set aside the decision dated January 30, 2003 rendered by
observe, moreover, that not all marriages celebrated under the old Civil the Court of Appeals.
Code required a marriage license for their validity;[20] hence, her
participation in this action is made all the more necessary in order to shed Special Case No. 117 entitled In Re: Petition for Nullification of Marriage
light on whether the marriage had been celebrated without a marriage Contract between Cresenciano Ablaza and Leonila Honato; Isidro Ablaza,
license and whether the marriage might have been a marriage excepted petitioner, is reinstated, and its records are returned to the Regional Trial
from the requirement of a marriage license. She was truly an Court, Branch 49, in Cataingan, Masbate, for further proceedings, with
indispensable party who must be joined herein: instructions to first require the petitioner to amend his initiatory pleading
in order to implead Leonila Honato and her daughter Leila Ablaza Jasul as
xxx under any and all conditions, [her] presence being a sine qua parties-defendants; then to determine whether the late Cresenciano
non for the exercise of judicial power. It is precisely "when an Ablaza had any ascendants, descendants, or children (legitimate or
indispensable party is not before the court [that] the action should illegitimate) at the time of his death as well as whether the petitioner was
be dismissed." The absence of an indispensable party renders all the brother and surviving heir of the late Cresenciano Ablaza entitled to
subsequent actions of the court null and void for want of authority succeed to the estate of said deceased; and thereafter to proceed
to act, not only as to the absent parties but even as to those accordingly.
present.[21]
No costs of suit.
We take note, too, that the petitioner and Leonila were parties in C.A.-
G.R. CV No. 91025 entitled Heirs of Cresenciano Ablaza, namely: Leonila SO ORDERED.
G. Ablaza and Leila Ablaza Jasul v. Spouses Isidro and Casilda Ablaza, an
action to determine who between the parties were the legal owners of the
property involved therein. Apparently, C.A.-G.R. CV No. 91025 was
decided on November 26, 2009, and the petitioner's motion for
reconsideration was denied on June 23, 2010. As a defendant in that
action, the petitioner is reasonably presumed to have knowledge that the
therein plaintiffs, Leonila and Leila, were the wife and daughter,
respectively, of the late Cresenciano. As such, Leila was another
indispensable party whose substantial right any judgment in this action
will definitely affect. The petitioner should likewise implead Leila.

The omission to implead Leonila and Leila was not immediately fatal to
the present action, however, considering that Section 11,[22] Rule 3,

28
 SUSIE CHAN-TAN, Petitioner, versus JESSE C. TAN, Respondent
2. Susie Tan hereby voluntarily agrees to exclusively shoulder and pay out
G.R. No. 167139 | 2010-02-25 of her own funds/assets whatever is the remaining balance or unpaid
amounts on said lots mentioned in paragraph 1 hereof directly with
CARPIO, J.:
Megaworld Properties, Inc., until the whole purchase or contract amounts
are fully paid.
This is a petition for review[1] of (i) the 17 May 2004 Resolution[2]
amending the 30 March 2004 Decision[3] and (ii) the 15 February 2005
Susie Tan is hereby authorized and empowered to directly negotiate,
Resolution[4] of the Regional Trial Court of Quezon City, Branch 107, in
transact, pay and deal with the seller/developer Megaworld Properties,
Civil Case No. Q-01-45743. In its 30 March 2004 Decision, the trial court
Inc., in connection with the Contract to Sell marked as Annexes "A" and
declared the marriage between petitioner Susie Chan-Tan and respondent
"B" hereof.
Jesse Tan void under Article 36 of the Family Code. Incorporated as part
of the decision was the 31 July 2003 Partial Judgment[5] approving the
The property covered by CCT No. 3754 of the Registry of Deeds of Quezon
Compromise Agreement[6] of the parties. In its 17 May 2004 Resolution,
City and located at Unit O, Richmore Town Homes 12-B Mariposa St.,
the trial court granted to respondent custody of the children, ordered
Quezon City shall be placed in co-ownership under the name of Susie Tan
petitioner to turn over to respondent documents and titles in the latter's
(1/3), Justin Tan (1/3) and Russel Tan (1/3) to the exclusion of Jesse
name, and allowed respondent to stay in the family dwelling. In its 15
Tan.
February 2005 Resolution, the trial court denied petitioner's motion for
reconsideration of the 28 December 2004 Resolution[7] denying
The property covered by TCT No. 48137 of the Registry of Deeds of
petitioner's motion to dismiss and motion for reconsideration of the 12
Quezon City and located at View Master Town Homes, 1387 Quezon
October 2004 Resolution,[8] which in turn denied for late filing
Avenue, Quezon City shall be exclusively owned by Jesse Tan to the
petitioner's motion for reconsideration of the 17 May 2004 resolution.
exclusion of Susie Tan.
The Facts
The undivided interest in the Condominium Unit in Cityland Shaw. Jesse
Tan shall exclusively own blvd. to the exclusion of Susie Tan.
Petitioner and respondent were married in June of 1989 at Manila
Cathedral in Intramuros, Manila.[9] They were blessed with two sons:
The shares of stocks, bank accounts and other properties presently under
Justin, who was born in Canada in 1990 and Russel, who was born in the
the respective names of Jesse Tan and Susie Tan shall be exclusively
Philippines in 1993.[10]
owned by the spouse whose name appears as the registered/account
owner or holder in the corporate records/stock transfer books, passbooks
In 2001, twelve years into the marriage, petitioner filed a case for the
and/or the one in possession thereof, including the dividends/fruits
annulment of the marriage under Article 36 of the Family Code. The
thereof, to the exclusion of the other spouse.
parties submitted to the court a compromise agreement, which we quote
in full:
Otherwise stated, all shares, bank accounts and properties registered and
under the name and/or in the possession of Jesse Tan shall be exclusively
1. The herein parties mutually agreed that the two (2) lots located at
owned by him only and all shares, accounts and properties registered
Corinthian Hills, Quezon City and more particularly described in the
and/or in the possession and under the name of Susie Tan shall be
Contract to Sell, marked in open court as Exhibits "H" to "H-3" shall be
exclusively owned by her only.
considered as part of the presumptive legitimes of their two (2) minor
children namely, Justin Tan born on October 12, 1990 and Russel Tan
However, as to the family corporations of Susie Tan, Jesse Tan shall
born on November 28, 1993. Copies of the Contract to Sell are hereto
execute any and all documents transferring the shares of stocks registered
attached as Annexes "A" and "B" and made integral parts hereof.
29
in his name in favor of Susie Tan, or Justin Tan/Russel Tan. A copy of the discourteous acts against each other and shall endeavor to cause their
list of the corporation owned by the family of Susie Tan is hereto attached other relatives to act similarly.
as Annex "C" and made an integral part hereof.
4. Likewise, the husband shall have the right to bring out and see the
The parties shall voluntarily and without need of demand turn over to the children on the following additional dates, provided that the same will not
other spouse any and all original documents, papers, titles, contracts impede or disrupt their academic schedule in Xavier School, the dates are
registered in the name of the other spouse that are in their respective as follows:
possessions and/or safekeeping.
a. Birthday of Jesse Tan
3. Thereafter and upon approval of this Compromise Agreement by the
b. Birthday of Grandfather and Grandmother, first cousins and uncles and
Honorable Court, the existing property regime of the spouses shall be
aunties
dissolved and shall now be governed by "Complete Separation of
Property". Parties expressly represent that there are no known creditors c. Father's Day
that will be prejudiced by the present compromise agreement.
d. Death Anniversaries of immediate members of the family of Jesse Tan
The parties shall have joint custody of their minor children. However, the
e. During the Christmas seasons/vacation the herein parties will agree on
two (2) minor children shall stay with their mother, Susie Tan at 12-B such dates as when the children can stay with their father. Provided that
Mariposa St., Quezon City. if the children stay with their father on Christmas Day from December
24th to December 25th until 1:00 PM the children will stay with their
The husband, Jesse Tan, shall have the right to bring out the two (2) mother on December 31 until January 1, 1:00 PM, or vice versa.
children every Sunday of each month from 8:00 AM to 9:00 PM. The
minor children shall be returned to 12-B Mariposa Street, Quezon City on The husband shall always be notified of all school activities of the children
or before 9:00 PM of every Sunday of each month. and shall see to it that he will exert his best effort to attend the same.

The husband shall also have the right to pick up the two (2) minor 5. During the birthdays of the two (2) minor children, the parties shall as
children in school/or in the house every Thursday of each month. The far as practicable have one celebration.
husband shall ensure that the children be home by 8:00 PM of said
Thursdays. Provided that if the same is not possible, the Husband (Jesse Tan) shall
have the right to see and bring out the children for at least four (4) hours
During the summer vacation/semestral break or Christmas vacation of the during the day or the day immediately following/or after the birthday, if
children, the parties shall discuss the proper arrangement to be made said visit or birthday coincides with the school day.
regarding the stay of the children with Jesse Tan.
6. The existing Educational Plans of the two children shall be used and
Neither party shall put any obstacle in the way of the maintenance of the utilized for their High School and College education, in the event that the
love and affection between the children and the other party, or in the way Educational Plans are insufficient to cover their tuition, the Husband shall
of a reasonable and proper companionship between them, either by shoulder the tuition and other miscellaneous fees, costs of books and
influencing the children against the other, or otherwise; nor shall they do educational materials, uniform, school bags, shoes and similar expenses
anything to estrange any of them from the other. like summer workshops which are taken in Xavier School, which will be
paid directly by Jesse Tan to the children's school when the same fall due.
The parties agreed to observe civility, courteousness and politeness in Jesse Tan, if necessary, shall pay tutorial expenses, directly to the tutor
dealing with each other and shall not insult, malign or commit concerned.

30
The husband further undertake to pay P10,000.00/monthly support remaining balance for the Megaworld property which, if forfeited would
pendente lite to be deposited in the ATM Account of SUSIE CHAN with prejudice the interest of the children; and petitioner failed to turn over to
account no. 3-189-53867-8 Boni Serrano Branch effective on the 15th of respondent documents and titles in the latter's name.
each month. In addition Jesse Tan undertakes to give directly to his two
(2) sons every Sunday, the amount needed and necessary for the purpose Thus, the trial court, in its 17 May 2004 resolution, awarded to respondent
custody of the children, ordered petitioner to turn over to respondent
of the daily meals of the two (2) children in school.
documents and titles in the latter's name, and allowed respondent to stay in
the family dwelling in Mariposa, Quezon City.
7. This Compromise Agreement is not against the law, customs, public
policy, public order and good morals. Parties hereby voluntarily agree and Petitioner filed on 28 June 2004 a motion for reconsideration[14] alleging
bind themselves to execute and sign any and all documents to give effect denial of due process on account of accident, mistake, or excusable
to this Compromise Agreement.[11] negligence. She alleged she was not able to present evidence because of the
negligence of her counsel and her own fear for her life and the future of the
On 31 July 2003, the trial court issued a partial judgment[12] approving children. She claimed she was forced to leave the country, together with her
the compromise agreement. On 30 March 2004, the trial court rendered a children, due to the alleged beating she received from respondent and the
decision declaring the marriage void under Article 36 of the Family Code pernicious effects of the latter's supposed gambling and womanizing ways.
on the ground of mutual psychological incapacity of the parties. The trial She prayed for an increase in respondent's monthly support obligation in the
court incorporated in its decision the compromise agreement of the amount of P150,000.
parties on the issues of support, custody, visitation of the children, and
Unconvinced, the trial court, in its 12 October 2004 Resolution,[15] denied
property relations.
petitioner's motion for reconsideration, which was filed beyond the 15-day
reglementary period. It also declared petitioner in contempt of court for non-
Meanwhile, petitioner cancelled the offer to purchase the Corinthian Hills compliance with the partial judgment and the 17 May 2004 resolution. The
Subdivision Lot No. 12, Block 2. She authorized Megaworld Corp. to trial court also denied petitioner's prayer for increase in monthly support. The
allocate the amount of P11,992,968.32 so far paid on the said lot in the trial court reasoned that since petitioner took it upon herself to enroll the
following manner: children in another school without respondent's knowledge, she should
therefore defray the resulting increase in their expenses.
(a) P3,656,250.04 shall be transferred to fully pay the other lot in
Corinthian Hills on Lot 11, Block 2; On 4 November 2004, petitioner filed a motion to dismiss[16] and a motion
for reconsideration[17] of the 12 October 2004 Resolution. She claimed she
(b) P7,783,297.56 shall be transferred to fully pay the contract price in was no longer interested in the suit. Petitioner stated that the circumstances
Unit 9H of the 8 Wack Wack Road Condominium project; and in her life had led her to the conclusion that withdrawing the petition was for
the best interest of the children. She prayed that an order be issued vacating
(c) P533,420.72 shall be forfeited in favor of Megaworld Corp. to cover
all prior orders and leaving the parties at the status quo ante the filing of the
the marketing and administrative costs of Corinthian Hills Subdivision Lot
12, Block 2.[13] suit.

In its 28 December 2004 Resolution,[18] the trial court denied both the
Petitioner authorized Megaworld Corp. to offer Lot 12, Block 2 of Corinthian
motion to dismiss and the motion for reconsideration filed by petitioner. It
Hills to other interested buyers. It also appears from the records that
held that the 30 March 2004 decision and the 17 May 2004 resolution had
petitioner left the country bringing the children with her.
become final and executory upon the lapse of the 15-day reglementary period
without any timely appeal having been filed by either party.
Respondent filed an omnibus motion seeking in the main custody of the
children. The evidence presented by respondent established that petitioner
Undeterred, petitioner filed a motion for reconsideration of the 28 December
brought the children out of the country without his knowledge and without
2004 resolution, which the trial court denied in its 15 February 2005
prior authority of the trial court; petitioner failed to pay the P8,000,000

31
resolution.[19] The trial court then issued a Certificate of Finality[20] of the the hearings on respondent's omnibus motion or on petitioner's motion to
30 March 2004 decision and the 17 May 2004 resolution. dismiss.

The Trial Court's Rulings The issue raised in this petition has been settled in the case of Tuason v. Court
of Appeals.[28] In Tuason, private respondent therein filed a petition for the
The 30 March 2004 Decision[21] declared the marriage between the parties annulment of her marriage on the ground of her husband's psychological
void under Article 36 of the Family Code on the ground of mutual incapacity. There, the trial court rendered judgment declaring the nullity of
psychological incapacity. It incorporated the 31 July 2003 Partial the marriage and awarding custody of the children to private respondent
Judgment[22] approving the Compromise Agreement[23] between the therein. No timely appeal was taken from the trial court's judgment.
parties. The 17 May 2004 Resolution[24] amended the earlier partial
judgment in granting to respondent custody of the children, ordering We held that the decision annulling the marriage had already become final
petitioner to turn over to respondent documents and titles in the latter's and executory when the husband failed to appeal during the reglementary
name, and allowing respondent to stay in the family dwelling in Mariposa, period. The husband claimed that the decision of the trial court was null and
Quezon City. The 15 February 2005 Resolution[25] denied petitioner's motion void for violation of his right to due process. He argued he was denied due
for reconsideration of the 28 December 2004 Resolution[26] denying process when, after failing to appear on two scheduled hearings, the trial
petitioner's motion to dismiss and motion for reconsideration of the 12 court deemed him to have waived his right to present evidence and rendered
October 2004 Resolution,[27] which in turn denied for late filing petitioner's judgment based solely on the evidence presented by private respondent. We
motion for reconsideration of the 17 May 2004 resolution. upheld the judgment of nullity of the marriage even if it was based solely on
evidence presented by therein private respondent.
The Issue
We also ruled in Tuason that notice sent to the counsel of record is binding
Petitioner raises the question of whether the 30 March 2004 decision and the upon the client and the neglect or failure of the counsel to inform the client of
17 May 2004 resolution of the trial court have attained finality despite the an adverse judgment resulting in the loss of the latter's right to appeal is not a
alleged denial of due process. ground for setting aside a judgment valid and regular on its face.[29]

The Court's Ruling In the present case, the 30 March 2004 decision and the 17 May 2004
resolution of the trial court had become final and executory upon the lapse of
The petition has no merit. the reglementary period to appeal.[30] Petitioner's motion for reconsideration
of the 17 May 2004 resolution, which the trial court received on 28 June
Petitioner contends she was denied due process when her counsel failed to file 2004, was clearly filed out of time. Applying the doctrine laid down in
pleadings and appear at the hearings for respondent's omnibus motion to Tuason, the alleged negligence of counsel resulting in petitioner's loss of the
amend the partial judgment as regards the custody of the children and the right to appeal is not a ground for vacating the trial court's judgments.
properties in her possession. Petitioner claims the trial court issued the 17
May 2004 resolution relying solely on the testimony of respondent. Petitioner Further, petitioner cannot claim that she was denied due process. While she
further claims the trial court erred in applying to her motion to dismiss may have lost her right to present evidence due to the supposed negligence of
Section 7 of the Rule on the Declaration of Absolute Nullity of Void Marriages her counsel, she cannot say she was denied her day in court. Records show
and Annulment of Voidable Marriages. Petitioner argues that if indeed the petitioner, through counsel, actively participated in the proceedings below,
provision is applicable, the same is unconstitutional for setting an obstacle to filing motion after motion. Contrary to petitioner's allegation of negligence of
the preservation of the family. her counsel, we have reason to believe the negligence in pursuing the case
was on petitioner's end, as may be gleaned from her counsel's manifestation
Respondent maintains that the 30 March 2004 decision and the 17 May 2004 dated 3 May 2004:
resolution of the trial court are now final and executory and could no longer
be reviewed, modified, or vacated. Respondent alleges petitioner is making a Undersigned Counsel, who appeared for petitioner, in the nullity
mockery of our justice system in disregarding our lawful processes. proceedings, respectfully informs the Honorable Court that she has not
Respondent stresses neither petitioner nor her counsel appeared in court at
32
 heard from petitioner since Holy Week. Attempts to call petitioner have claim that it is unconstitutional for allegedly setting an obstacle to the
failed. preservation of the family is without basis.
Undersigned counsel regrets therefore that she is unable to respond in an
intelligent manner to the Motion (Omnibus Motion) filed by respondent. Section 1 of the Rule states that the Rules of Court applies suppletorily to
[31] a petition for the declaration of absolute nullity of void marriage or the
annulment of voidable marriage. In this connection, Rule 17 of the Rules
Clearly, despite her counsel's efforts to reach her, petitioner showed utter of Court allows dismissal of the action upon notice or upon motion of the
disinterest in the hearings on respondent's omnibus motion seeking, plaintiff, to wit:
among others, custody of the children. The trial judge was left with no
other recourse but to proceed with the hearings and rule on the motion Section 1. Dismissal upon notice by plaintiff. - A complaint may be
based on the evidence presented by respondent. Petitioner cannot now dismissed by the plaintiff by filing a notice of dismissal at any time before
service of the answer or of a motion for summary judgment. Upon such
come to this Court crying denial of due process. notice being filed, the court shall issue an order confirming the dismissal.
xxx
As for the applicability to petitioner's motion to dismiss of Section 7 of the
Rule on the Declaration of Absolute Nullity of Void Marriages and Section 2. Dismissal upon motion of plaintiff. - Except as provided in the
Annulment of Voidable Marriages, petitioner is correct. Section 7 of the preceding section, a complaint shall not be dismissed at the plaintiff's
Rule on the Declaration of Absolute Nullity of Void Marriages and instance save upon approval of the court and upon such terms and
conditions as the court deems proper. x x x (Emphasis supplied)
Annulment of Voidable Marriages provides:
However, when petitioner filed the motion to dismiss on 4 November 2004,
SEC. 7. Motion to dismiss. - No motion to dismiss the petition shall be
allowed except on the ground of lack of jurisdiction over the subject the 30 March 2004 decision and the 17 May 2004 resolution of the trial court
matter or over the parties; provided, however, that any other ground that had long become final and executory upon the lapse of the 15-day
might warrant a dismissal of the case may be raised as an affirmative reglementary period without any timely appeal having been filed by either
defense in an answer. (Emphasis supplied) party. The 30 March 2004 decision and the 17 May 2004 resolution may no
longer be disturbed on account of the belated motion to dismiss filed by
The clear intent of the provision is to allow the respondent to ventilate all petitioner. The trial court was correct in denying petitioner's motion to
possible defenses in an answer, instead of a mere motion to dismiss, so dismiss. Nothing is more settled in law than that when a judgment becomes
that judgment may be made on the merits. In construing a statute, the 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
purpose or object of the law is an important factor to be considered.[32]
what is perceived to be an erroneous conclusion of fact or law.[33] The
Further, the letter of the law admits of no other interpretation but that the
reason is grounded on the fundamental considerations of public policy and
provision applies only to a respondent, not a petitioner. Only a respondent sound practice that, at the risk of occasional error, the judgments or orders of
in a petition for the declaration of absolute nullity of void marriage or the courts must be final at some definite date fixed by law. Once a judgment has
annulment of voidable marriage files an answer where any ground that become final and executory, the issues there should be laid to rest.[34]
may warrant a dismissal may be raised as an affirmative defense pursuant
to the provision. The only logical conclusion is that Section 7 of the Rule WHEREFORE, we DENY the petition for review. We AFFIRM the (i) 17 May
does not apply to a motion to dismiss filed by the party who initiated the 2004 Resolution amending the 30 March 2004 Decision and (ii) the 15
petition for the declaration of absolute nullity of void marriage or the February 2005 Resolution of the Regional Trial Court of Quezon City, Branch
annulment of voidable marriage. 107, in Civil Case No. Q-01-45743.

Since petitioner is not the respondent in the petition for the annulment of Costs against petitioner. SO ORDERED.
the marriage, Section 7 of the Rule does not apply to the motion to
dismiss filed by her. Section 7 of the Rule not being applicable, petitioner's

33
 NOEL A. LASANAS, Petitioner, vs. PEOPLE OF THE of damages. In support of his complaint, he further  alleged, among others,
PHILIPPINES,Respondent that:
 
G.R. No. 159031 | 2014-06-23 He was married to the defendant on February 16, 1968 which marriage
was officiated by Hon. Carlos B. Salazar, Municipal Judge of San Miguel,
BERSAMIN, J.: Iloilo. Machine copy of the Marriage Contract is herewith  attached as
  Exhibit “A” and made part hereof; which marriage was ratified  by a
Any person who contracts a second marriage without first having a  judicial wedding at San Jose Church, Iloilo City on August 27, 1980
declaration of the nullity of his or her first marriage, albeit on its  face void and  registered at the office of Iloilo City Registrar. Machine copy of
the Marriage Contract is herewith attached as Annex “B”;
and inexistent for lack of a marriage license, is guilty of bigamy as  defined
 
and penalized by Article 349 of the Revised Penal Code. Plaintiff and defendant have no children and have no properties  except
some personal belongings;
The Case
Plaintiff met the defendant sometime in the middle of 1967 at the house
The accused seeks the reversal of the decision promulgated on August  29, of Mr. Raul L. Cataloctocan in Burgos Street, Lapaz, Iloilo City  wherein
2002,1 whereby the Court of Appeals (CA) affirmed his conviction the purpose of their meeting was for the plaintiff to consult and  seek
for  bigamy under the judgment rendered on October 30, 2000 in Criminal treatment by the defendant because the latter was a “babaylan”:
Case No. 49808 by the Regional Trial Court (RTC), Branch 38, in Iloilo City.
  Plaintiff was treated by the defendant and the subsequent
Antecedents treatments  were performed by the defendant at her residence in
Barangay, Banga, Mina, Iloilo, the treatment made being on a continuing
basis; 
On February 16, 1968,2 Judge Carlos B. Salazar of the Municipal Trial Court
of San Miguel, Iloilo solemnized the marriage of accused Noel  Lasanas and xxxx
Socorro Patingo3 without the benefit of a marriage license.4  The records
show that Lasanas and Patingo had not executed any affidavit of cohabitation On February 16, 1968, defendant asked the plaintiff to come with her to
to excuse the lack of the marriage license.5 On August 27, 1980, Lasanas and Iloilo City. They went to Dainty Restaurant at J.M. Basa Street.  Plaintiff
Patingo reaffirmed their marriage vows in a religious  ceremony before Fr. saw several persons therein. After eating plaintiff was made to  sign the
Rodolfo Tamayo at the San Jose Church in Iloilo City.6  They submitted no marriage contract, which was null and void for lack of marriage license
marriage license or affidavit of cohabitation for that  purpose.7 Both and based on a false affidavit of cohabitation. After their marriage, they
ceremonies were evidenced by the corresponding marriage  certificates.8 In went home to Barangay Bangac, Mina, Iloilo, which marked the start of a
1982, Lasanas and Patingo separated de facto because of  irreconcilable married life rocked with marital differences, quarrels
and incompatibilities, without love, but under the uncontrollable fear of
differences.9
harm that should befall him should he not follow her;
On December 27, 1993, the accused contracted marriage with Josefa Eslaban xxxx
in a religious ceremony solemnized by Fr. Ramon Sequito at the  Sta. Maria
Church in Iloilo City. Their marriage certificate reflected the civil status of the During the period the parties are living together defendant would
accused as single.10 nag  the plaintiff, fabricate stories against him and displayed her fit of
jealousy,  neglect her marital obligations even committed infidelity,
On July 26, 1996, the accused filed a complaint for annulment of  marriage which  psychological incompatibilities and marital breaches have forced
and damages against Socorro in the RTC in Iloilo City,11 which was docketed the  petitioner to live separately from defendant since 1982 up to the
as Civil Case No. 23133 and raffled to Branch 39 of the RTC. The complaint present.12
alleged that Socorro had employed deceit, misrepresentations  and fraud in  
In October 1998, Socorro charged the accused with bigamy in the  Office
securing his consent to their marriage; and that subsequent marital breaches,
of the City Prosecutor of Iloilo City.13 After due proceedings, the accused
psychological incompatibilities and her infidelity had  caused him to suffer was formally indicted for bigamy under the information filed on October
mental anguish, sleepless nights and social humiliation warranting the award 20, 1998 in the RTC, viz:
34
 That on or about the 27th day of December, 1993 in the City of Decision of the CA
Iloilo, Philippines and within the jurisdiction of this Court, said accused,
Noel Lasanas being previously united in a lawful marriage with Socorro Aggrieved, the accused appealed his conviction to the CA, insisting  that the
Patingo and without the said marriage having been legally dissolve (sic) RTC thereby erred in finding that he had legally married Socorro despite the
or  annulled, did then and there willfully, unlawfully and feloniously
absence of the marriage license, affidavit of cohabitation and     affidavit of
contract a second or subsequent marriage with Josefa Eslaban.
the solemnizing officer.
CONTRARY TO LAW. 14  
  The accused contended that because he had not been legally married  to
The criminal case, docketed as Criminal Case No. 49808, was raffled  to Socorro, the first element of bigamy was not established; that his good faith
Branch 38 of the RTC in Iloilo City. The accused pleaded not guilty at and the absence of criminal intent were absolutory in his favor; and that he
his arraignment,15 and trial ensued in due course. had been of the honest belief that there was no need for a judicial declaration
  of the nullity of the first marriage before he could contract a  subsequent
In the meanwhile, on November 24, 1998, the RTC (Branch 39) rendered its marriage.19
judgment in Civil Case No. 23133 dismissing the accused’s  complaint for  
annulment of marriage, and declaring the marriage between  him and On August 29, 2002, however, the CA promulgated its challenged  decision,
Socorro valid and legal, as follows: decreeing: 
 
WHEREFORE, premises considered, judgment is hereby WHEREFORE, for lack of merit, the Court DISMISSES the appeal  and
rendered  dismissing the complaint filed by the plaintiff Noel Arenga AFFIRMS the appealed Decision.
Lasanas  against the defendant, Socorro Patingo, considering that the
marriage between them is valid and legal. SO ORDERED.20
 
The plaintiff Noel Lasanas is hereby ordered to give monthly support to Issues
his wife, the defendant in this case, Ma. Socorro Patingo in the amount of
P3,000.00 a month, from the time that she filed her answer Hence, the accused has appealed by petition for review on certiorari.He
with  counterclaim on February 3, 1997, pursuant to Article 203 of the argues that the RTC and the CA incorrectly applied the provisions of Article
Family Code and every month thereafter. Costs against the plaintiff.  349 of the Revised Penal Code,22 asserting that the civil law rule embodied
  in Article 40 of the Family Code requiring a judicial declaration  of nullity
SO ORDERED.16
before one could contract a subsequent marriage should not apply   in this
  purely criminal prosecution;23 that even if Article 40 of the Family Code was
The accused appealed to the CA.17 applicable, he should still be acquitted because his subsequent marriage was
  null and void for being without a recorded judgment of nullity of marriage,
Ruling of the RTC as provided in Article 53 in relation to Article 52 of the Family Code;24 that,
consequently, an essential element of the crime of bigamy, i.e.  that the
On October 30, 2000, the RTC (Branch 38) rendered its assailed decision subsequent marriage be valid, was lacking;25 and that his good faith  and
in Criminal Case No. 49808, disposing thusly: lack of criminal intent were sufficient to relieve him of criminal liability.26
 WHEREFORE, finding accused NOEL LASANAS guilty beyond reasonable doubt
of the offense of BIGAMY punishable under Art. 349 of the Revised Penal Code, Ruling
judgment is hereby entered ordering him to serve  an indeterminate penalty of
imprisonment of two (2) years and four (4)  months of prision correccional, as The appeal lacks merit.
minimum, to eight (8) years and one (1) day of prision mayor as maximum.
The accused is entitled to the privileges extended to him under Art.  29 of the The law on bigamy is found in Article 349 of the Revised Penal
Revised Penal Code.
Code, which provides:
SO ORDERED.18  
 
35
 Article 349. Bigamy. — The penalty of prision mayor shall be  imposed Based on the findings of the CA, this case has all the foregoing  elements
upon any person who shall contract a second or subsequent  marriage attendant.
before the former marriage has been legally dissolved, or before  the
absent spouse has been declared presumptively dead by means of The first and second elements of bigamy were present in view of the absence
a judgment rendered in the proper proceedings.
of a judicial declaration of nullity of marriage between the accused  and
  Socorro. The requirement of securing a judicial declaration of nullity
The elements of the crime of bigamy are as follows: (1) that the offender has of marriage prior to contracting a subsequent marriage is found in Article 40
been legally married; (2) that the marriage has not been legally dissolved or, of the Family Code, to wit:
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 or she  contracts a Article 40. The absolute nullity of a previous marriage may be   invoked for
second or subsequent marriage; and (4) that the second or  subsequent purposes of remarriage on the basis solely of a final judgment  declaring such
marriage has all the essential requisites for validity.27  previous marriage void. (n)
   
The CA specifically observed: The reason for the provision was aptly discussed in Teves v. People:29
 
This Court concedes that the marriage between accused- x x x The Family Code has settled once and for all the
appellant  Lasanas and private complainant Patingo was void because of conflicting  jurisprudence on the matter. A declaration of the absolute
the absence of a marriage license or of an affidavit of cohabitation. The nullity of a  marriage is now explicitly required either as a cause of action
ratificatory  religious wedding ceremony could not have validated the or a ground  for defense. Where the absolute nullity of a previous
void marriage. Neither can the church wedding be treated as a marriage marriage is sought to  be invoked for purposes of contracting a second
in itself for to do  so, all the essential and formal requisites of a valid marriage, the sole basis acceptable in law for said projected marriage to
marriage should be  present. One of these requisites is a valid marriage be free from legal  infirmity is a final judgment declaring the previous
license except in those instances when this requirement may be excused. marriage void. 
There having been no  marriage license nor affidavit of cohabitation  
presented to the priest who presided over the religious rites, the religious
The Family Law Revision Committee and the Civil Code Revision Committee
wedding cannot be treated as a valid marriage in itself.
which drafted what is now the Family Code of the Philippines  took the
But then, as the law and jurisprudence say, petitioner should have  first position that parties to a marriage should not be allowed to assume that their
secured a judicial declaration of the nullity of his void marriage marriage is void even if such be the fact but must first  secure a judicial
to private complainant Patingo before marrying Josefa Eslaban. Actually, declaration of the nullity of their marriage before they can  be allowed to
he  did just that but after his marriage to Josefa Eslaban. Consequently, marry again.
he violated the law on bigamy.
In fact, the requirement for a declaration of absolute nullity of a marriage is
Accused’s reliance on the cases of People v. Mendoza, 95 Phil. 845  and also for the protection of the spouse who, believing that his or her marriage
People v. Aragon, 100 Phil. 1033 is misplaced because the ruling in these is illegal and void, marries again. With the judicial declaration of the nullity
cases have already been abandoned per Relova v. Landico, supra,  and of his or her marriage, the person who marries again cannot be charged with
Wiegel v. Sempio-Diy, 143 SCRA 499. The petitioner also cited Yap  v.
bigamy.
Court of Appeals, 145 SCRA 229 which resurrected the Aragon
and Mendoza doctrine but Yap’s ruling too had been overtaken by Art. 40
of the Family Code and by Domingo v. Court of Appeals and Te v. Court In numerous cases, this Court has consistently held that a judicial declaration
of Appeals, supra. of nullity is required before a valid subsequent marriage can be  contracted;
or else, what transpires is a bigamous marriage, reprehensible and immoral.
Regarding accused-appellant’s defense of good faith, the same
is unavailing pursuant to Mañozca v. Domagas, 248 SCRA 625. If petitioner’s contention would be allowed, a person who commits  bigamy
can simply evade prosecution by immediately filing a petition for  the
This Court, therefore concludes that the appealed Decision is correct  in declaration of nullity of his earlier marriage and hope that a
all respect.28 favorable  decision is rendered therein before anyone institutes a complaint
  against him. We note that in petitioner’s case the complaint was filed before
36
the  first marriage was declared a nullity. It was only the filing of has  explained that “[s]ince a marriage contracted during the subsistence of
the  Information that was overtaken by the declaration of nullity of his a  valid marriage is automatically void, the nullity of this second marriage
first  marriage. Following petitioner’s argument, even assuming that is not per se an argument for the avoidance of criminal liability for bigamy.
a  complaint has been instituted, such as in this case, the offender can   xx x A plain reading of [Article 349 of the Revised Penal Code],
still  escape liability provided that a decision nullifying his earlier therefore,  would indicate that the provision penalizes the mere act of
marriage  precedes the filing of the Information in court. Such cannot be contracting a  second or subsequent marriage during the subsistence of a
allowed.  To do so would make the crime of bigamy dependent upon the valid marriage."33 The Court has further observed in Nollora, Jr. v. People:34
ability or  inability of the Office of the Public Prosecutor to immediately act  
on  complaints and eventually file Informations in court. Plainly, x x x Nollora may not impugn his [subsequent] marriage to Geraldino in
petitioner’s strained reading of the law is against its simple letter. order to extricate himself from criminal liability; otherwise, we would be
  opening the doors to allowing the solemnization of multiple  flawed
Pursuant to Teves, the accused’s conviction for bigamy is affirmed. The crime marriage ceremonies. As we stated in Tenebro v. Court of Appeals: 
of bigamy was consummated from the moment he contracted the  second  
There is therefore a recognition written into the law itself that  such a
marriage without his marriage to Socorro being first judicially declared null
marriage, although void ab initio, may still produce legal consequences.
and void, because at the time of the celebration of the second marriage, his Among these legal consequences is incurring criminal liability for bigamy.
marriage to Socorro was still deemed valid and subsisting due  to such To hold otherwise would render the  State's penal laws on bigamy
marriage not being yet declared null and void by a court of  competent completely nugatory, and allow  individuals to deliberately ensure that
jurisdiction.30 “What makes a person criminally liable for bigamy,” according each marital contract be flawed in some manner, and to thus escape the
to People v. Odtuhan:31 consequences of contracting multiple marriages, while beguiling throngs
  of hapless women with the promise of futurity and commitment.
x x x is when he contracts a second or subsequent marriage during  the  
subsistence of a valid marriage. Parties to the marriage should not Under Article 349 of the Revised Penal Code, the penalty for bigamy  is
be  permitted to judge for themselves its nullity, for the same must prision mayor. With neither an aggravating nor a mitigating circumstance  f.
be  submitted to the judgment of competent courts and only when the attendant in the commission of the crime, the imposable penalty is
nullity of the marriage is so declared can it be held as void, and so long as the  medium period of prision mayor,35 which ranges from eight years and
there is no such declaration, the presumption is that the marriage exists. one day to 10 years. Applying the Indeterminate Sentence Law, the minimum
Therefore,  he who contracts a second marriage before the judicial
of   the indeterminate sentence should be within the range of
declaration of  nullity of the first marriage assumes the risk of being
prision  correccional, the penalty next lower than that prescribed for the
prosecuted for bigamy.
  offense,  which is from six months and one day to six years. Accordingly,
The accused’s defense of acting in good faith deserves scant  consideration the  indeterminate sentence of two years and four months of prision
especially because the records show that he had filed a  complaint for the correccional, as minimum, to eight years and one day of prision mayor
annulment of his marriage with Socorro prior to the  institution of the as maximum, as imposed by the RTC, was proper.
criminal complaint against him but after he had already  contracted his
second marriage with Josefa. But even such defense would  abandon him WHEREFORE, the Court  AFFIRMS  the decision of the Court of  Appeals
because the RTC (Branch 39) dismissed his complaint for  annulment of promulgated on August 29, 2002; and  ORDERS  the petitioner to  pay the
marriage after the information for bigamy had already been  filed against costs of suit.
him, thus confirming the validity of his marriage to Socorro.  
SO ORDERED.
Considering that the accused’s subsequent marriage to Josefa was
an  undisputed fact, the third element of bigamy was established.
Nonetheless,  he submits that his marriage to Josefa was invalid because of
lack of a  recorded judgment of nullity of marriage. Such argument had no
worth,  however, because it was he himself who failed to secure a
judicial  declaration of nullity of his previous marriage prior to contracting
his  subsequent marriage. In Tenebro v. Court of Appeals,32 the Court
37
REPUBLIC OF THE PHILIPPINES, petitioner, vs. GREGORIO NOLASCO, Respondent further testified that his efforts to look for her himself
respondent whenever his ship docked in England proved fruitless. He also stated that
all the letters he had sent to his missing spouse at No. 38 Ravena Road,
G.R. No. 94053 | 1993-03-17 Allerton, Liverpool, England, the address of the bar where he and Janet
Monica first met, were all returned to him. He also claimed that he
FELICIANO, J p:
inquired from among friends but they too had no news of Janet Monica.
On 5 August 1988, respondent Gregorio Nolasco filed before the Regional
On cross-examination, respondent stated that he had lived with and later
Trial Court of Antique, Branch 10, a petition for the declaration of
married Janet Monica Parker despite his lack of knowledge as to her
presumptive death of his wife Janet Monica Parker, involving Article 41 of
family background. He insisted that his wife continued to refuse to give
the Family Code. The petition prayed that respondent's wife be declared
him such information even after they were married. He also testified that
presumptively dead or, in the alternative, that the marriage be declared
he did not report the matter of Janet Monica's disappearance to the
null and void. 1
Philippine government authorities.
The Republic of the Philippines opposed the petition through the
Respondent Nolasco presented his mother, Alicia Nolasco, as his witness.
Provincial Prosecutor of Antique who had been deputized to assist the
She testified that her daughter-in-law Janet Monica had expressed a
Solicitor-General in the instant case. The Republic argued, first, that
desire to return to England even before she had given birth to Gerry
Nolasco did not possess a "well-founded belief that the absent spouse was
Nolasco on 7 December 1982. When asked why her daughter-in-law might
already dead;" 2 and second, Nolasco's attempt to have his marriage
have wished to leave Antique, respondent's mother replied that Janet
annulled in the same proceeding was a "cunning attempt" to circumvent
Monica never got used to the rural way of life in San Jose, Antique. Alicia
the law on marriage. 3
Nolasco also said that she had tried to dissuade Janet Monica from leaving
as she had given birth to her son just fifteen days before, but when she
During trial, respondent Nolasco testified that he was a seaman and that
(Alicia) failed to do so, she gave Janet Monica P22,000.00 for her
he had first met Janet Monica Parker, a British subject, in a bar in England
expenses before she left on 22 December 1982 for England. She further
during one of his ship's port calls. From that chance meeting onwards,
claimed that she had no information as to the missing person's present
Janet Monica Parker lived with respondent Nolasco on his ship for six (6)
whereabouts.
months until they returned to respondent's hometown of San Jose,
Antique on 19 November 1980 after his seaman's contract expired. On 15
The trial court granted Nolasco's petition in a Judgment dated 12 October
January 1982, respondent married Janet Monica Parker in San Jose,
1988 the dispositive portion of which reads:
Antique, in Catholic rites officiated by Fr. Henry van Tilborg in the
Cathedral of San Jose. "Wherefore, under Article 41, paragraph 2 of the Family code of the
Philippines (Executive Order No. 209, July 6, 1987, as amended by
Respondent Nolasco further testified that after the marriage celebration, Executive Order No. 227, July 17, 1987) this Court hereby declares as
he obtained another employment contract as a seaman and left his wife presumptively dead Janet Monica Parker Nolasco, without prejudice to her
with his parents in San Jose, Antique. Sometime in January 1983, while reappearance." 4 
working overseas, respondent received a letter from his mother informing
The Republic appealed to the Court of Appeals contending that the trial
him that Janet Monica had given birth to his son. The same letter
court erred in declaring Janet Monica Parker presumptively dead because
informed him that Janet Monica had left Antique. Respondent claimed he
respondent Nolasco had failed to show that there existed a well founded
then immediately asked permission to leave his ship to return home. He
belief for such declaration.
arrived in Antique in November 1983.

38
The Court of Appeals affirmed the trial court's decision, holding that considered to be dead and believed to be so by the spouse present, or is
respondent had sufficiently established a basis to form a belief that his presumed dead under Article 390 and 391 of the Civil Code. 9 The Family
absent spouse had already died. Code, upon the other hand, prescribes a "well founded belief " that the
absentee is already dead before a petition for declaration of presumptive
The Republic, through the Solicitor-General, is now before this Court on a death can be granted.
Petition for Review where the following allegations are made:
As pointed out by the Solicitor-General, there are four (4) requisites for
"1. The Court of Appeals erred in affirming the trial court's finding that the declaration of presumptive death under Article 41 of the Family Code:
there existed a well-founded belief on the part of Nolasco that Janet
Monica Parker was already dead; and "1. That the absent spouse has been missing for four consecutive years, or
two consecutive years if the disappearance occurred where there is
2. The Court of Appeals erred in affirming the trial Court's declaration danger of death under the circumstances laid down in Article 391, Civil
that the petition was a proper case of the declaration of presumptive Code;
death under Article 41, Family Code." 5 
2. That the present spouse wishes to remarry;
The issue before this Court, as formulated by petitioner is "([w]hether or
not Nolasco has a well-founded belief that his wife is already dead." 6 3. That the present spouse has a well-founded belief that the absentee is
dead; and
The present case was filed before the trial court pursuant to Article 41 of
4. That the present spouse files a summary proceeding for the declaration
the Family Code which provides that: of presumptive death of the absentee." 10
Respondent naturally asserts that he had complied with all these
"Art. 41. A marriage contracted by any person during the subsistence of a requirements. 11
previous marriage shall be null and void, unless before the celebration of
the subsequent marriage, the prior spouse had been absent for four Petitioner's argument, upon the other hand, boils down to this: that
consecutive years and the spouse present had a well founded belief that
the absent spouse was already dead. In case of disappearance where there
respondent failed to prove that he had complied with the third
is danger of death under the circumstances set forth in the provision of requirement, i.e., the existence of a "well-founded belief" that the absent
Article 391 of the Civil Code, an absence of only two years shall be spouse is already dead.
sufficient.
The Court believes that respondent Nolasco failed to conduct a search for
For the purpose of contracting the subsequent marriage under the his missing wife with such diligence as to give rise to a "well-founded
preceding paragraph, the spouse present must institute a summary
belief" that she is dead.
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." (Emphasis supplied). United States v. Biasbas, 12 is instructive as to degree of diligence
required in searching for a missing spouse. In that case, defendant
When Article 41 is compare with the old provision of the Civil Code, Macario Biasbas was charged with the crime of bigamy. He set-up the
which it superseded, 7 the following crucial differences emerge. Under defense of a good faith belief that his first wife had already died. The
Article 41, the time required for the presumption to arise has been Court held that defendant had not exercised due diligence to ascertain the
shortened to four (4) years; however, there is need for a judicial whereabouts of his first wife, noting that:
declaration of presumptive death to enable the spouse present to remarry.
8 Also, Article 41 of the Family Code imposes a stricter standard than the "While the defendant testified that he had made inquiries concerning the
Civil Code: Article 83 of the Civil Code merely requires either that there whereabouts of his wife, he fails to state of whom he made such inquiries.
be no news that such absentee is still alive; or the absentee is generally 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
39
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 The Court also views respondent's claim that Janet Monica declined to
she had been absent . . ." 13 give any information as to her personal background even after she had
In the case at bar, the Court considers that the investigation allegedly married respondent 17 too convenient an excuse to justify his failure to
conducted by respondent in his attempt to ascertain Janet Monica Parker's locate her. The same can be said of the loss of the alleged letters
whereabouts is too sketchy to form the basis of a reasonable or well- respondent had sent to his wife which respondent claims were all
founded belief that she was already dead. When he arrived in San Jose, returned to him. Respondent said he had lost these returned letters, under
Antique after learning of Janet Monica's departure, instead of seeking the unspecified circumstances.
help of local authorities or of the British Embassy, 14 he secured another
seaman's contract and went to London, a vast city of many millions of Neither can this Court give much credence to respondent's bare assertion
inhabitants, to look for her there. that he had inquired from their friends of her whereabouts, considering
that respondent did not identify those friends in his testimony. The Court
"Q: After arriving here in San Jose, Antique, did you exert efforts to of Appeals ruled that since the prosecutor failed to rebut this evidence
inquire the whereabouts of your wife: 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
A: Yes, Sir.
credibility. 18 As noted before, there are serious doubts to respondent's
Court: credibility. Moreover, even if admitted as evidence, said testimony merely
tended to show that the missing spouse had chosen not to communicate
How did you do that? with their common acquaintances, and not that she was dead.
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)." 15
Respondent testified that immediately after receiving his mother's letter
(Emphasis supplied). sometime in January 1983, he cut short his employment contract to return
to San Jose, Antique. However, he did not explain the delay of nine (9)
Respondent's testimony, however, showed that he confused London for months from January 1983, when he allegedly asked leave from his
Liverpool and this casts doubt on his supposed efforts to locate his wife in captain, to November 1983 when he finally reached San Jose.
England. The Court of Appeal's justification of the mistake, to wit: Respondent, moreover, claimed he married Janet Monica Parker without
inquiring about her parents and their place of residence. 19 Also,
". . . Well, while the cognoscente (sic) would readily know the respondent failed to explain why he did not even try to get the help of the
geographical difference between London and Liverpool, for a humble police or other authorities in London and Liverpool in his effort to find his
seaman like Gregorio the two places could mean one - place in England, wife. The circumstances of Janet Monica's departure and respondent's
the port where his ship docked and where he found Janet. Our own
subsequent behaviour make it very difficult to regard the claimed belief
provincial folks, every time they leave home to visit relatives in Pasay City,
Kalookan City. or Parañaque, would announce to friends and relatives, that Janet Monica was dead a well-founded one.
'We're going to Manila.' This apparent error in naming of places of
destination does not appear to be fatal," 16 is not well taken. There is In Goitia v. Campos-Rueda, 20 the Court stressed that:
no analogy between Manila and its neighboring cities, on one
hand, and London and Liverpool, on the other, which, as pointed ". . . Marriage is an institution, the maintenance of which in its purity the
out by the Solicitor-General, are around three hundred fifty (350) public is deeply interested. It is a relationship for life and the parties
cannot terminate it at any shorter period by virtue of any contract they
kilometers apart. We do not consider that walking into a major city make . . ." 21 (Emphasis supplied).
like Liverpool or London with a simple hope of somehow bumping By the same token, the spouses should not be allowed, by the simple
into one particular person there - which is in effect what Nolasco expedient of agreeing that one of them leave the conjugal abode and
says he did - can be regarded as a reasonably diligent search. never to return again, to circumvent the policy of the laws on marriage.
40
The Court notes that respondent even tried to have his marriage annulled WHEREFORE, the Decision of the Court of Appeals dated 23 February
before the trial court in the same proceeding. 1990, affirming the trial court's decision declaring Janet Monica Parker
presumptively dead is hereby REVERSED and both Decisions are hereby
In In Re Szatraw, 22 the Court warned against such collusion between the NULLIFIED and SET ASIDE. Costs against respondent.
parties when they find it impossible to dissolve the marital bonds through
existing legal means.

While the Court understands the need of respondent's young son, Gerry
Nolasco, for maternal care, still the requirements of the law must prevail.
Since respondent failed to satisfy the clear requirements of the law, his
petition for a judicial declaration or presumptive death must be denied.
The law does not view marriage like an ordinary contract. Article 1 of the
Family Code emphasizes that:

". . . Marriage is a special contract of permanent union between a man

and a woman entered into in accordance with law for the establishment
of conjugal and family life. It is the foundation of the family and an
inviolable social institution whose nature, consequences, and incidents
are governed by law and not subject to stipulation, except that marriage
settlements may fix the property relations during the marriage within the
limits provided by this Code." (Emphasis supplied)
In Arroyo, Jr. v. Court of Appeals, 23 the Court stressed strongly the need
to protect.

". . . 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 . . .

The same sentiment has been expressed in the Family Code of the
Philippines in Article 149:

'The family, being the foundation of the nation, is a basic social institution
which public policy cherishes and protects. Consequently, family relations
are governed by law and no custom, practice or agreement destructive of
the family shall be recognized or given effect.' " 24

In fine, respondent failed to establish that he had the well-founded belief

required by law that his absent wife was already dead that would sustain
the issuance of a court order declaring Janet Monica Parker presumptively
dead.

41
 ESTRELLITA TADEO-MATIAS, Petitioner, vs.
 7. That according to the service record of [Wilfredo] issued by the
REPUBLIC OF THE PHILIPPINES, Respondent. National Police Commission, [Wilfredo] was already declared
missing since 1979 x x x;
G.R. No. 230751 | 2018-04-25   
8. Petitioner constantly pestered the then Philippine Constabulary
VELASCO, JR., J.:
for any news regarding [her] beloved husband [Wilfredo], but the
 
Philippine Constabulary had no answer to his whereabouts,
This is an appeal1 assailing the Decision2 dated November 28, 2016 and
[neither] did they have any news of him going AWOL, all they
Resolution3  dated March 20, 2017 of the Court of Appeals (CA) in CA-
know was he was assigned to a place frequented by the New
G.R. SP No. 129467.
People’s Army;
 
 
The facts are as follows:
9. [W]eeks became years and years became decades, but the
 
[p]etitioner never gave up hope, and after more than three (3)
On April 10, 2012, petitioner Estrellita Tadco-Matias filed before the
decades of waiting, the [p]etitioner is still hopeful, but the times
Regional Trial Court (RTC) of Tarlac City a petition for the declaration of
had been tough on her, specially with a meager source of income
presumptive death of her husband, Wilfredo N. Matias (Wilfredo).4  The
coupled with her age, it is now necessary for her to request for the
allegations of the petition read:
benefits that rightfully belong to her in order to survive;
 
 
1. [Petitioner] is of legal age, married to [Wilfredo], Filipino and
10. [T]hat one of the requirements to attain the claim of benefits is
curr[e]ntly a resident of 106 Molave street, Zone B, San Miguel,
for a proof of death or at least a declaration of presumptive death
Tarlac City;
by the Honorable Court;
 
 
2. [Wilfredo] is of legal age, a member of the Philippine
11. That this petition is being filed not for any other purpose but
Constabulary and was assigned in Arayat, Pampanga since August
solely to claim for the benefit under PD. No. 1638 as amended.
24,1967[;]
 
 
The petition was docketed as Spec. Proc. No. 4850 and was raffled to
3. The [p]etitioner and [Wilfredo] entered into a lawful marriage
Branch 65 of the Tarlac City RTC. A copy of the petition was then
on January 7, 1968 in lmbo, Anda, Pangasinan x x x;
furnished to the Office of the Solicitor General (OSG).
 
 
4. After the solemnization of their marriage vows, the couple put
Subsequently, the OSG filed its notice of appearance on behalf of herein
up their conjugal home at 106 Molave street, Zone B, San Miguel,
respondent Republic of the Philippines (Republic).5
Tarlac City;
 
 
On January 15, 2012, the RTC issued a Decision6 in Spec. Proc. No. 4850
5. [Wilfredo] continued to serve the Philippines and on September
granting the petition. The dispositive portion of the Decision reads:7
15, 1979, he set out from their conjugal home to again serve as a
 
member of the Philippine Constabulary; WHEREFORE, in view of the foregoing, the Court hereby declared (sic)
  WlLFREDO N. MATIAS absent or presumptively dead under Article 41 of
6. [Wilfredo] never came back from his tour of duty in Arayat, the Family Code of the Philippines  for purposes of claiming financial
Pampanga since 1979 and he never made contact or benefits due to him as former military officer.
communicated with the [p]etitioner nor to his relatives;  
xxxx
 
 
SO ORDERED. (Emphasis supplied)
42
  been dismissed by the RTC. The RTC’s decision must, therefore, be set
The Republic questioned the decision of the RTC via a petition aside.
for certiorari.8  
  RTC Erred in Declaring the
On November 28, 2012, the CA rendered a decision granting Presumptive Death of Wilfredo under
the  certiorari  petition of the Republic and setting aside the decision of Article 41 of the FC; Petitioner’s
the RTC. lt accordingly disposed: Petition for the Declaration of
  Presumptive Death Is Not Based on
WHEREFORE, premises considered, the petition for certiorari is Article 41 of the FC, but on the Civil
GRANTED. The Decision dated January 15, 2012 of the Regional Trial Code
Court, branch 65, Tarlac City, in Special Proceeding no. 4850 is
 
ANNULLED and SET ASIDE, and the petition is DISMISSED.
  A conspicuous error in the decision of the RTC must first be addressed.
The CA premised its decision on the following ratiocinations:  
  It can be recalled that the RTC, in the  fallo  of its January 15, 2012
1. The RTC erred when it declared Wilfredo presumptively dead on the Decision, granted the petitioner’s petition by declaring Wilfredo
basis of Article 41 of the Family Code (FC). Article 41 of the FC does not presumptively dead  “under Article 41 of the FC.”  By doing so, the RTC
apply to the instant petition as it was clear that petitioner does not seek to gave the impression that the petition for the declaration of presumptive
remarry. If anything, the petition was invoking the presumption of death death filed by petitioner was likewise filed pursuant to Article 41 of the
established under Articles 390 and 391 of the Civil Code, and not that FC.9 This is wrong.
provided for under Article 41 of the FC.  
  The petition for the declaration of presumptive death filed by petitioner is
2. Be that as it may, the petition to declare Wilfredo presumptively dead not an action that would have warranted the application of Article 41 of
should have been dismissed by the RTC. The RTC is without authority to the FC because petitioner was not seeking to remarry. A reading of Article
take cognizance of a petition whose sole purpose is to have a person 41 of the FC shows that the presumption of death established therein is
declared presumptively dead under either Article 390 or Article 391 of the only applicable for the purpose of  contracting a valid  subsequent
Civil Code. As been held by jurisprudence, Articles 390 and 391 of the marriage under the said law. Thus:
Civil Code merely express rules of evidence that allow a court or a  
Art. 41.  A marriage contracted by any person during subsistence of a
tribunal to presume that a person is dead-which presumption may be previous marriage shall be null and void, unless before the celebration of
invoked in any action or proceeding, but itself cannot be the subject of an the subsequent marriage, the prior spouse had been absent for four
independent action or proceeding. consecutive years and the spouse present has a well-founded belief that
  the absent spouse was already dead. In case of disappearance where there
Petitioner moved for reconsideration, but the CA remained steadfast. 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
Hence, this appeal.
sufficient.
   
Our Ruling For the purpose of contracting the subsequent marriage under the
  preceding paragraph the spouse present must institute a summary
We deny the appeal. 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.
I. The CA was correct. The petition for the declaration of presumptive
 
death filed by the petitioner is not an authorized suit and should have
Here, petitioner was forthright that she was not seeking the declaration of
the presumptive death of Wilfredo as a prerequisite for remarriage. In her
43
petition for the declaration of presumptive death, petitioner categorically Jurisdiction
stated that the same was filed  “not for any other  purpose but solely to  
claim for the benefit under P.D. No. 1638 as amended.”10 The true fault in the RTC‘s decision, however, goes beyond its
  misleading follo. The decision itself is objectionable.
Given that her petition for the declaration of presumptive death was not  
filed for the purpose of remarriage, petitioner was clearly relying on the Since the petition filed by the petitioner merely seeks the declaration of
presumption of death under either Article 390 or Article 391 of the Civil presumptive death of Wilfredo under the Civil Code, the RTC should have
Code11  as the basis of her petition.  Articles 390 and 391 of the Civil dismissed such petition outright. This is because, in our jurisdiction, a
Code express the general rule regarding presumptions of death for any petition whose sole objective is to have a person declared presumptively
civil purpose, to wit: dead under the Civil Code is not regarded as a valid suit and no court has
  any authority to take cognizance of the same.
Art. 390. After an absence of seven years, it being unknown whether or  
not the absentee still lives, he shall be presumed dead for all purposes, The above norm had its conceptual roots in the 1948 case of  In re:
except for those of succession.
Petition for the Presumption of Death of Nicolas Szatraw.12  In the said
 
case, we held that a rule creating a presumption of death13 is merely one
The absentee shall not be presumed dead for the purpose of opening his
of evidence that-while may be invoked in any action or proceeding-cannot
succession till after an absence of ten years. lf he disappeared after the
be the lone subject of an independent action or proceeding. Szatraw
age of seventy-five years, an absence of five years shall be sufficient in
explained:
order that his succession may be opened.
 
  The rule invoked by the latter is merely one of evidence which permits the
Art. 391.  The following shall be presumed dead for all purposes, court to presume that a person is dead after the fact that such person had
including the division of the estate among the heirs: been unheard from in seven years had been established. This presumption
  may arise and be invoked and made in a case, either in an action or in a
(1) A person on board a vessel lost during a sea voyage, or an acroplane special proceeding, which is tried or heard by, and submitted for decision
which is missing, who has not been heard of for four years since the loss to, a competent court. 
of the vessel or acroplane;
  Independently of such an action or special proceeding, the presumption of
(2) A person in the armed forces who has taken part in war, and has been death cannot be invoked, nor can it be made the subject of an action or
missing for four years; special proceeding. In this case, there  is no right to be enforced nor is
  there a remedy prayed for by the petitioner against her absent husband. 
(3) A person who has been in danger of death under other circumstances
and his existence has not been known for four years. Neither is there a prayer for the final determination of his right or status
  or for the ascertainment of a particular fact, for the petition does not pray
Verily, the RTC’s use of Article 41 of the FC as its basis in declaring the for a declaration that the petitioner’s husband is dead, but merely asks for
presumptive death of Wilfredo was misleading and grossly improper. The a declaration that he be presumed dead because he had been unheard
petition for the declaration of presumptive death filed by petitioner  was from in seven years.
based on the Civil Code, and not on Article 41 of the FC.
If there is any pretense at securing a declaration that the petitioner’s
 
husband is dead, such a pretension cannot be granted because it is
Petitioner’s Petition for Declaration of unauthorized.  The  petition is for a declaration that the petitioner’s
Presumptive Death Ought to Have Been husband is  presumptively dead. But this declaration, even if judicially
Dismissed; A Petition Whose Sole Objective is made,  would not improve the petitioner’s situation, because such
to Declare a Person Presumptively Dead Under a presumption is already established by law.
the Civil Code, Like that Filed by the Petitioner
A judicial pronouncement to that effect, even if final and executory, would
Before the RTC, Is Not a Viable Suit in Our still be a prima facie presumption only. It is still disputable. It is for that
44
 reason that it  cannot be the subject of a judicial pronouncement or disputable presumption. The function of a court to render decisions
declaration, if it is the only question or matter involved in a case, or upon that is supposed to be  final  and  binding  between litigants is
which a competent court has to pass. 
thereby compromised.
The latter must decide finally the controversy between the parties, or  
determine finally the right or status of a party or establish finally a 4. Moreover, a court action to declare a person presumptively dead
particular fact, out of which certain rights and obligations arise or may under Articles 390 and 391 of the Civil Code would be
arise; and once such controversy is decided by a final judgement, or such unnecessary.  The presumption in the said articles is
right or status determined, or such particular fact established, by a final already established by law.
decree, then the judgement on the subject of the controversy, or the decree
upon the right or status of a party or upon the existence of a particular
 
fact, becomes res judicata, subject to no collateral attack, except in a few Verily, under prevailing case law, courts are without any authority to take
rare instances especially provided by law. cognizance of a petition that-like the one filed by the petitioner in the case
It is, therefore, clear that a judicial declaration that a person is at bench-only seeks to have a person declared presumptively dead under
presumptively dead, because he had been unheard from in seven years, the Civil Code. Such a petition is not authorized by law.17  Hence, by
being a presumption juris tantum only, subject to contrary proof, cannot
acting upon and eventually granting the petitioner’s petition for the
reach the stage of finality or become final. (Citations omitted and
emphasis supplied) declaration of presumptive death, the RTC violated prevailing
  jurisprudence and thereby committed grave abuse of discretion. The CA,
The above ruling in Szatraw has since been used by the subsequent cases therefore, was only correct in setting aside the RTC’s decision.
of Lukban v. Republic14 and Gue v. Republic15 in disallowing petitions  
for the declaration of presumptive death based on Article 390 of the Civil II. Before bringing this case to its logical conclusion, however, there
Code (and, implicitly, also those based on Article 391 of the Civil Code). are a few points the Court is minded to make.
   
Dissecting the rulings of  Szatraw, Gue  and  Lukban  collectively, we are It is not lost on this Court that much of the present controversy stemmed
able to ascertain the considerations why a petition for declaration of from the misconception that a court declaration is  required  in order to
presumptive death based on the Civil Code was disallowed in our establish a person as presumptively dead for purposes of claiming his
jurisdiction, viz:16 death benefits as a military serviceman under pertinent laws.18  This
  misconception is what moved petitioner to file her misguided petition for
1. Articles 390 and 391 of the Civil Code merely express rules of the declaration of presumptive death of Wilfredo and what ultimately
evidence that only allow a court or a tribunal to presume that a exposed her to unnecessary difficulties in prosecuting an otherwise simple
person is dead upon the establishment of certain facts. claim for death benefits either before the Philippine Veterans’ Affairs
  Office (PVAO) or the Armed Forces of the Philippines (AFP).
2. Since Articles 390 and 391 of the Civil Code merely express rules  
of evidence,  an action brought exclusively to declare a  person What the Court finds deeply disconcerting, however, is the possibility that
presumptively dead under either of the said articles  actually such misconception may have been peddled by no less than the PVAO and
presents no actual controversy that a court could decide. In such the AFP themselves; that such agencies, as a matter of practice, had been
action, there would be no actual rights to be enforced, no wrong to requiring claimants, such as the petitioner, to first secure a court
be remedied nor any status to be established. declaration of presumptive death before processing the death benefits of a
  missing serviceman.
3. A judicial pronouncement declaring a person presumptively dead  
under Article 390 or Article 391 of the Civil Code, in an action In view of the foregoing circumstance, the Court deems it necessary to
exclusively based thereon, would never really become  “final”  as issue the following guidelines-culled from relevant law and jurisprudential
the same only confirms the existence of a  prima facie  or pronouncements-to aid the public, PVAO and the AFP in making or

45
dealing with claims of death benefits which are similar to that of the President (OP) pursuant to the principle of exhaustion of
petitioner: administrative remedies.
   
1. The PVAO and the AFP can decide claims of death benefits of a lf the OP denies the appeal, the claimant may next seek recourse via a
missing soldier without requiring the claimant to first produce a petition for review with the CA under Rule 43 of the Rules of the Court.
court declaration of the presumptive death of such soldier. In such And finally, should such recourse still fail, the claimant may file an appeal
claims, the PVAO and the AFP can make their own determination, by certiorari with the Supreme Court.
on the basis of evidence presented by the claimant, whether the  
presumption of death under Articles 390 and 391 of the Civil Code While we are constrained by case law to deny the instant petition, the
may be applied or not. Court is hopeful that, by the foregoing guidelines, the unfortunate
  experience of the petitioner would no longer be replicated in the future.
It must be stressed that the presumption of death under Articles  
390 and 391 of the Civil Code arises by operation of law, without WHEREFORE,  the instant appeal is  DENIED.  The Decision dated
need of a court declaration, once the factual conditions mentioned November 28, 2016 and Resolution dated March 20, 2017 of the Court of
in the said articles are established.19  Hence, requiring the Appeals in CA-G.R. SP No. 129467 are  AFFIRMED.  The Court declares
claimant to further secure a court declaration in order to establish that a judicial decision of a court of law that a person is presumptively
the presumptive death of a missing soldier is not proper and dead is not a requirement before the Philippine Veterans’ Affairs Office or
contravenes established jurisprudence on the matter.20 the Armed Forces of the Philippines can grant and pay the benefits under
  Presidential Decree No. 1638.
2. In order to avail of the presumption, therefore, the claimant  
need only present before the PVAO or the appropriate office of the Let a copy of this decision be served to the Philippine Veterans Affairs
AFP, as the case may be, any  “evidence”21which shows that the Office and the Armed Forces of the Philippines for their consideration.
concerned soldier had been missing for such number of years and/  
or under the circumstances prescribed under Articles 390 and 391 SO ORDERED.
of the Civil Code. Obviously, the  “evidence”  referred to here
excludes a court declaration of presumptive death.
 
3. The PVAO or the AFP, as the case may be, may then weigh the
evidence submitted by the claimant and determine their
sufficiency to establish the requisite factual conditions specified
under Article 390 or 391 of the Civil Code in order for the
presumption of death to arise. If the PVAO or the AFP determines
that the evidence submitted by the claimant is  sufficient, they
should not hesitate to apply the presumption of death and pay the
latter’s claim.
 
4. If the PVAO or the AFP determines that the evidence submitted
by the claimant is not sufficient to invoke the presumption of
death under the Civil Code and denies the latter’s claim by reasor,
thereof, the claimant may file an appeal with the Office of the

46
 REPUBLIC OF THE PHILIPPINES, Petitioner,
 Petitioner filed a Notice of Appeal to elevate the case to the CA,
vs. YOLANDA CADACIO GRANADA, Respondent. presumably under Rule 41, Section 2(a) of the Rules of Court. Yolanda
filed a Motion to Dismiss on the ground that the CA had no jurisdiction
G.R. No. 187512               June 13, 2012 over the appeal. She argued that her Petition for Declaration of
Presumptive Death, based on Article 41 of the Family Code, was a
SERENO, J.: summary judicial proceeding, in which the judgment is immediately final
and executory and, thus, not appealable.
This is a Rule 45 Petition seeking the reversal of the Resolutions dated 23
January 20091 and 3 April 20092 issued by the Court of Appeals (CA), In its 23 January 2009 Resolution, the appellate court granted Yolanda’s
which affirmed the grant by the Regional Trial Court (RTC) of the Petition Motion to Dismiss on the ground of lack of jurisdiction. Citing Republic v.
for Declaration of Presumptive Death of the absent spouse of respondent. Bermudez-Lorino,3  the CA ruled that a petition for declaration of
presumptive death under Rule 41 of the Family Code is a summary
In May 1991, respondent Yolanda Cadacio Granada (Yolanda) met Cyrus proceeding. Thus, judgment thereon is immediately final and executory
Granada (Cyrus) at Sumida Electric Philippines, an electronics company in upon notice to the parties.
Paranaque where both were then working. The two eventually got
married at the Manila City Hall on 3 March 1993. Their marriage resulted Petitioner moved for reconsideration, but its motion was likewise denied
in the birth of their son, Cyborg Dean Cadacio Granada. by the CA in a Resolution dated 3 April 2009.4

Sometime in May 1994, when Sumida Electric Philippines closed down, Hence, the present Rule 45 Petition.
Cyrus went to Taiwan to seek employment. Yolanda claimed that from
that time, she had not received any communication from her husband, Issues
notwithstanding efforts to locate him. Her brother testified that he had
asked the relatives of Cyrus regarding the latter’s whereabouts, to no 1. Whether the CA seriously erred in dismissing the Petition on the ground
avail. that the Decision of the RTC in a summary proceeding for the declaration
of presumptive death is immediately final and executory upon notice to
After nine (9) years of waiting, Yolanda filed a Petition to have Cyrus the parties and, hence, is not subject to ordinary appeal
declared presumptively dead. The Petition was raffled to Presiding Judge
Avelino Demetria of RTC Branch 85, Lipa City, and was docketed as Sp. 2. Whether the CA seriously erred in affirming the RTC’s grant of the
Proc. No. 2002-0530. Petition for Declaration of Presumptive Death under Article 41 of the
Family Code based on the evidence that respondent presented
On 7 February 2005, the RTC rendered a Decision declaring Cyrus as
presumptively dead. Our Ruling

On 10 March 2005, petitioner Republic of the Philippines, represented by 1. On whether the CA seriously erred in dismissing the Petition on the
the Office of the Solicitor General (OSG), filed a Motion for ground that the Decision of the RTC in a summary proceeding for the
Reconsideration of this Decision. Petitioner argued that Yolanda had failed declaration of presumptive death is immediately final and executory
to exert earnest efforts to locate Cyrus and thus failed to prove her well- upon notice to the parties and, hence, is not subject to ordinary
founded belief that he was already dead. However, in an Order dated 29 appeal
June 2007, the RTC denied the motion.
In the assailed Resolution dated 23 January 2009, the CA dismissed the
Petition assailing the RTC’s grant of the Petition for Declaration of
47
Presumptive Death of the absent spouse under Article 41 of the Family Art. 247. The judgment of the court shall be immediately final and
Code. Citing Republic v. Bermudez-Lorino,5  the appellate court noted executory.
that a petition for declaration of presumptive death for the purpose of
remarriage is a summary judicial proceeding under the Family Code. Further, Article 253 of the Family Code reads:
Hence, the RTC Decision therein is immediately final and executory upon
notice to the parties, by express provision of Article 247 of the same Code. ART. 253. The foregoing rules in Chapters 2 and 3 hereof
shall likewise govern summary proceedings filed under
The decision is therefore not subject to ordinary appeal, and the attempt
Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they
to question it through a Notice of Appeal is unavailing. are applicable.

We affirm the CA ruling. Taken together, Articles 41, 238, 247 and 253 of the Family Code
provide that since a petition for declaration of presumptive death
Article 41 of the Family Code provides: is a summary proceeding, the judgment of the court therein shall
be immediately final and executory.
Art. 41. A marriage contracted by any person during the subsistence of a
previous marriage shall be null and void, unless before the celebration of
In Republic v. Bermudez-Lorino,6  the Republic likewise appealed
the subsequent marriage,  the prior spouse had been absent for four
consecutive years and the spouse present has a well-founded belief that the CA’s affirmation of the RTC’s grant of respondent’s Petition for
the absent spouse was already dead. In case of disappearance where there Declaration of Presumptive Death of her absent spouse. The Court
is danger of death under the circumstances set forth in the provisions of therein held that it was an error for the Republic to file a Notice of
Article 391 of the  Civil Code, an absence of only two years shall be Appeal when the latter elevated the matter to the CA, to wit:
sufficient.
In Summary Judicial Proceedings under the Family Code, there is
For the purpose of contracting the subsequent marriage under the
preceding paragraph the spouse present must institute a  summary
no reglementary period within which to perfect an appeal,
proceeding as provided in this Code  for the declaration of presumptive precisely because judgments rendered thereunder, by express
death of the absentee, without prejudice to the effect of reappearance of provision of Section 247, Family Code, supra, are "immediately
the absent spouse. (Underscoring supplied.) final and executory."

Clearly, a petition for declaration of presumptive death of an absent x x x           x x x          x x x

spouse for the purpose of contracting a subsequent marriage under Article
41 of the Family Code is a summary proceeding "as provided for" under But, if only to set the records straight and for the future guidance of the
the Family Code. bench and the bar, let it be stated that the RTC’s decision dated November
7, 2001, was immediately final and executory upon notice to the parties.
Further, Title XI of the Family Code is entitled "Summary Judicial It was erroneous for the OSG to file a notice of appeal, and for the RTC to
Proceedings in the Family Law." Subsumed thereunder are Articles 238 give due course thereto. The Court of Appeals acquired no jurisdiction
and 247, which provide: over the case, and should have dismissed the appeal outright on that
ground.
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
Justice (later Chief Justice) Artemio Panganiban, who concurred in the
court proceedings. Such cases shall be decided in an expeditious manner
without regard to technical rules. result reached by the Court in Republic v. Bermudez-Lorino, additionally
opined that what the OSG should have filed was a petition for certiorari
x x x           x x x          x x x under Rule 65, not a petition for review under Rule 45.

48
In the present case, the Republic argues that Bermudez-Lorino has been Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL
superseded by the subsequent Decision of the Court in Republic v. Jomoc, PROCEEDINGS IN THE FAMILY LAW, establishes the rules that govern
7 issued a few months later. summary court proceedings in the Family Code:

In Jomoc, the RTC granted respondent’s Petition for Declaration of ART. 238. Until modified by the Supreme Court, the procedural rules in
Presumptive Death of her absent husband for the purpose of remarriage. this Title shall apply in all cases provided for in this Code requiring
summary court proceedings. Such cases shall be decided in an expeditious
Petitioner Republic appealed the RTC Decision by filing a Notice of
manner without regard to technical rules.
Appeal. The trial court disapproved the Notice of Appeal on the ground
that, under the Rules of Court,8 a record on appeal is required to be filed
In turn, Article 253 of the Family Code specifies the cases covered by the
when appealing special proceedings cases. The CA affirmed the RTC
rules in chapters two and three of the same title. It states:
ruling. In reversing the CA, this Court clarified that while an action for
declaration of death or absence under Rule 72, Section 1(m), expressly
ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise
falls under the category of special proceedings, a petition for declaration govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124
of presumptive death under Article 41 of the Family Code is a summary and 217, insofar as they are applicable. (Emphasis supplied.)
proceeding, as provided for by Article 238 of the same Code. Since its
purpose was to enable her to contract a subsequent valid marriage, In plain text, Article 247 in Chapter 2 of the same title reads:
petitioner’s action was a summary proceeding based on Article 41 of the
Family Code, rather than a special proceeding under Rule 72 of the Rules ART 247. The judgment of the court shall be immediately final and
of Court. Considering that this action was not a special proceeding, executory.
petitioner was not required to file a record on appeal when it appealed the
RTC Decision to the CA. By express provision of law, the judgment of the court in a summary
proceeding shall be immediately final and executory. As a matter of
We do not agree with the Republic’s argument that Republic v. Jomoc course, it follows that no appeal can be had of the trial court's judgment in
superseded our ruling in Republic v. Bermudez-Lorino. As observed by the a summary proceeding for the declaration of presumptive death of an
CA, the Supreme Court in Jomoc did not expound on the characteristics of absent spouse under Article 41 of the Family Code. It goes without saying,
a summary proceeding under the Family Code. In contrast, the Court in however, that an aggrieved party may file a petition for certiorari to
Bermudez-Lorino expressly stated that its ruling on the impropriety of an question abuse of discretion amounting to lack of jurisdiction. Such
ordinary appeal as a vehicle for questioning the trial court’s Decision in a petition should be filed in the Court of Appeals in accordance with the
summary proceeding for declaration of presumptive death under Article Doctrine of Hierarchy of Courts. To be sure, even if the Court's original
41 of the Family Code was intended "to set the records straight and for the jurisdiction to issue a writ of certiorari is concurrent with the RTCs and
future guidance of the bench and the bar." 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
At any rate, four years after Jomoc, this Court settled the rule regarding Court of Appeals, the losing party may then file a petition for review on
appeal of judgments rendered in summary proceedings under the Family certiorari under Rule 45 of the Rules of Court with the Supreme Court.
Code when it ruled in Republic v. Tango:9 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
This case presents an opportunity for us to settle the rule on appeal of an appeal.
judgments rendered in summary proceedings under the Family Code and
accordingly, refine our previous decisions thereon. 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

49
judgment thereon, the trial court committed grave abuse of discretion that case, the four requisites for the declaration of presumptive death
amounting to lack of jurisdiction. From the decision of the CA, the under the Family Code are as follows:
aggrieved party may elevate the matter to this Court via a petition for
review on certiorari under Rule 45 of the Rules of Court. 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
Evidently then, the CA did not commit any error in dismissing the
Code;
Republic’s Notice of Appeal on the ground that the RTC judgment on the
Petition for Declaration of Presumptive Death of respondent’s spouse was 2. That the present spouse wishes to remarry;
immediately final and executory and, hence, not subject to ordinary
appeal. 3. That the present spouse has a well-founded belief that the absentee is
dead; and
2. On whether the CA seriously erred in affirming the RTC’s grant of
the Petition for Declaration of Presumptive Death under Article 41 of 4. That the present spouse files a summary proceeding for the declaration
the Family Code based on the evidence that respondent had of presumptive death of the absentee.
presented
In evaluating whether the present spouse has been able to prove the
Petitioner also assails the RTC’s grant of the Petition for Declaration of existence of a "well-founded belief" that the absent spouse is already dead,
Presumptive Death of the absent spouse of respondent on the ground that the Court in Nolasco cited United States v. Biasbas,14  which it found to
she had not adduced the evidence required to establish a well-founded be instructive as to the diligence required in searching for a missing
belief that her absent spouse was already dead, as expressly required by spouse.
Article 41 of the Family Code. Petitioner cites Republic v. Nolasco,
10  United States v. Biasbas11  and Republic v. Court of Appeals and In Biasbas, the Court held that defendant Biasbas failed to exercise due
Alegro12 as authorities on the subject. diligence in ascertaining the whereabouts of his first wife, considering his
admission that that he only had a suspicion that she was dead, and that
In Nolasco, petitioner Republic sought the reversal of the CA’s affirmation the only basis of that suspicion was the fact of her absence.
of the RTC’s grant of respondent’s Petition for Declaration of Presumptive
Death of his absent spouse, a British subject who left their home in the Similarly, in Republic v. Court of Appeals and Alegro, petitioner Republic
Philippines soon after giving birth to their son while respondent was on sought the reversal of the CA ruling affirming the RTC’s grant of the
board a vessel working as a seafarer. Petitioner Republic sought the Petition for Declaration of Presumptive Death of the absent spouse on the
reversal of the ruling on the ground that respondent was not able to ground that the respondent therein had not been able to prove a "well-
establish his "well-founded belief that the absentee is already dead," as founded belief" that his spouse was already dead. The Court reversed the
required by Article 41 of the Family Code. In ruling thereon, this Court CA, granted the Petition, and provided the following criteria for
recognized that this provision imposes more stringent requirements than determining the existence of a "well-founded belief" under Article 41 of
does Article 83 of the Civil Code.13  The Civil Code provision merely the Family Code:
requires either that there be no news that the absentee is still alive; or that
the absentee is generally considered to be dead and is believed to be so by For the purpose of contracting the subsequent marriage under the
the spouse present, or is presumed dead under Articles 390 and 391 of the preceding paragraph, the spouse present must institute a summary
proceeding as provided in this Code for the declaration of presumptive
Civil Code. In comparison, the Family Code provision prescribes a "well- death of the absentee, without prejudice to the effect of reappearance of
founded belief" that the absentee is already dead before a petition for the absent spouse.
declaration of presumptive death can be granted. As noted by the Court in

50
The spouse present is, thus, burdened to prove that his spouse has been The RTC ruling on the issue of whether respondent was able to prove her
absent and that he has a well-founded belief that the absent spouse is "well-founded belief" that her absent spouse was already dead prior to her
already dead before the present spouse may contract a subsequent filing of the Petition to declare him presumptively dead is already final
marriage. The law does not define what is meant by a well-grounded and can no longer be modified or reversed. Indeed, "[n]othing is more
belief. Cuello Callon writes that "es menester que su creencia sea firme se settled in law than that when a judgment becomes final and executory, it
funde en motivos racionales." becomes immutable and unalterable. The same may no longer be
modified in any respect, even if the modification is meant to correct what
Belief is a state of the mind or condition prompting the doing of an overt is perceived to be an erroneous conclusion of fact or law."15
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 WHEREFORE, premises considered, the assailed Resolutions of the Court
determination probably founded in truth. Any fact or circumstance of Appeals dated 23 January 2009 and 3 April 2009 in CA-G.R. CV No.
relating to the character, habits, conditions, attachments, prosperity and 90165 are AFFIRMED.
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 SO ORDERED.
their disappearance or throw light on their intentions, competence [sic]
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. (Footnotes omitted, underscoring supplied.)

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.

The Republic’s arguments are well-taken. Nevertheless, we are

constrained to deny the Petition.

51
 REPUBLIC OF THE PHILIPPINES, PETITIONER, VS. MARIA FE After due proceedings, the RTC issued an order granting the respondent’s
ESPINOSA CANTOR, RESPONDENT. petition and declaring Jerry presumptively dead. It concluded that the
respondent had a well-founded belief that her husband was already dead
G.R. No. 184621 | 2013-12-10 since more than four (4) years had passed without the former receiving
any news about the latter or his whereabouts. The dispositive portion of
BRION, J.:
the order dated December 15, 2006 reads:
The petition for review on certiorari1 before us assails the decision dated WHEREFORE, the Court hereby declares, as it hereby declared that
August 27, 2008 of the Court of Appeals (CA) in CA-G.R. SP No. 01558- respondent Jerry F. Cantor is presumptively dead pursuant to Article 41 of
MIN which affirmed the order dated December 15, 2006 of the Regional the Family Code of the Philippines without prejudice to the effect of the
Trial Court (RTC), Branch 25, Koronadal City, South Cotabato, in SP Proc. reappearance of the absent spouse Jerry F. Cantor.5
Case No. 313-25, declaring Jerry F. Cantor, respondent Maria Fe Espinosa
Cantor’s husband, presumptively dead under Article 41 of the Family The Ruling of the CA
Code.  
The case reached the CA through a petition for certiorari6  filed by the
The Factual Antecedents petitioner, Republic of the Philippines, through the Office of the Solicitor
  General (OSG). In its August 27, 2008 decision, the CA dismissed the
The respondent and Jerry were married on September 20, 1997. They petitioner’s petition, finding no grave abuse of discretion on the RTC’s
lived together as husband and wife in their conjugal dwelling in Agan part, and, accordingly, fully affirmed the latter’s order, thus:
Homes, Koronadal City, South Cotabato. Sometime in January 1998, the
couple had a violent quarrel brought about by: (1) the respondent’s WHEREFORE, premises foregoing (sic), the instant petition is hereby
DISMISSED and the assailed Order dated December 15, 2006 declaring
inability to reach “sexual climax” whenever she and Jerry would have
Jerry F. Cantor presumptively dead is hereby AFFIRMED in toto.7
intimate moments; and (2) Jerry’s expression of animosity toward the
respondent’s father. The petitioner brought the matter via a Rule 45 petition before this Court.
 
After their quarrel, Jerry left their conjugal dwelling and this was the last The Petition
time that the respondent ever saw him. Since then, she had not seen,  
communicated nor heard anything from Jerry or about his whereabouts. The petitioner contends that certiorari lies to challenge the decisions,
  judgments or final orders of trial courts in petitions for declaration of
On May 21, 2002, or more than four (4) years from the time of Jerry’s presumptive death of an absent spouse under Rule 41 of the Family Code.
disappearance, the respondent filed before the RTC a petition4  for her It maintains that although judgments of trial courts in summary judicial
husband’s declaration of presumptive death, docketed as SP Proc. Case proceedings, including presumptive death cases, are deemed immediately
No. 313-25. She claimed that she had a well-founded belief that Jerry was final and executory (hence, not appealable under Article 247 of the Family
already dead. She alleged that she had inquired from her mother-in-law, Code), this rule does not mean that they are not subject to review on
her brothers-in-law, her sisters-in-law, as well as her neighbours and certiorari.
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 The petitioner also posits that the respondent did not have a well-founded
hospital. All these earnest efforts, the respondent claimed, proved futile, belief to justify the declaration of her husband’s presumptive death. It
prompting her to file the petition in court. claims that the respondent failed to conduct the requisite diligent search
for her missing husband. Likewise, the petitioner invites this Court’s
The Ruling of the RTC attention to the attendant circumstances surrounding the case,
 
52
particularly, the degree of search conducted and the respondent’s resultant death of the absentee, without prejudice to the effect of reappearance of
failure to meet the strict standard under Article 41 of the Family Code. the absent spouse.
 
Art. 247. The judgment of the court shall be immediately final and
The Issues executory. [underscores ours]
 
The petition poses to us the following issues: With the judgment being final, it necessarily follows that it is no longer
  subject to an appeal, the dispositions and conclusions therein having
(1) Whether certiorari lies to challenge  the decisions, judgments become immutable and unalterable not only as against the parties but
or final orders of trial courts in petitions for declaration of even as against the courts.8 Modification of the court’s ruling, no matter
presumptive death of an absent spouse under Article 41 of the how erroneous is no longer permissible. The final and executory nature of
Family Code; and 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
(2) Whether the respondent had a well-founded belief that Jerry granted to parties because of the express mandate of Article 247 of the
is already dead. Family Code, to wit:

The Court’s Ruling In Summary Judicial Proceedings under the Family Code, there is no
  reglementary period within which to perfect an appeal, precisely because
We grant the petition. 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
a.  On the Issue of the Propriety of Certiorari as a Remedy  Republic’s appeal and order the transmittal of the entire records of the
  case to the Court of Appeals.
Court’s Judgment in the Judicial Proceedings for Declaration of  
Presumptive Death Is Final and Executory, Hence, Unappealable  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
The Family Code was explicit that the court’s judgment in summary
nor is it a part of due process, for it is merely a statutory privilege.” Since,
proceedings, such as the declaration of presumptive death of an absent by express mandate of Article 247 of the Family Code, all judgments
spouse under Article 41 of the Family Code, shall be immediately final and rendered in summary judicial proceedings in Family Law are
executory. “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
Article 41, in relation to Article 247, of the Family Code provides: 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. [emphasis ours; italics supplied]
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 Certiorari Lies to Challenge the Decisions, Judgments or Final Orders of
consecutive years and the spouse present has a well-founded belief that Trial Courts in a Summary Proceeding for the Declaration of Presumptive
the absent spouse was already dead. In case of disappearance where there Death Under the Family Code
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 A losing party in this proceeding, however, is not entirely left without a
sufficient.
 
remedy. While jurisprudence tells us that no appeal can be made from the
For the purpose of contracting the subsequent marriage under the trial court's judgment, an aggrieved party may, nevertheless, file a petition
preceding paragraph the spouse present must institute a summary for certiorari under Rule 65 of the Rules of Court to question any abuse of
proceeding as provided in this Code for the declaration of presumptive discretion amounting to lack or excess of jurisdiction that transpired.

53
 As held in De los Santos v. Rodriguez, et al.,10 the fact that a decision the Court of Appeals in certain cases, such concurrence does not sanction
has become final does not automatically negate the original action of the an unrestricted freedom of choice of court forum. [emphasis ours]
CA to issue certiorari, prohibition and mandamus in connection with
orders or processes issued by the trial court. Certiorari may be availed of Viewed in this light, we find that the petitioner’s resort to certiorari under
where a court has acted without or in excess of jurisdiction or with grave Rule 65 of the Rules of Court to question the RTC’s order declaring Jerry
abuse of discretion, and where the ordinary remedy of appeal is not presumptively dead was proper.
available. Such a procedure finds support in the case of Republic v. Tango,  
11 wherein we held that: b.  On the Issue of the Existence of Well-Founded Belief 
 
This case presents an opportunity for us to settle the rule on appeal of The Essential Requisites for the Declaration of Presumptive Death
judgments rendered in summary proceedings under the Family Code and Under Article 41 of the Family Code 
accordingly, refine our previous decisions thereon.  
  Before a judicial declaration of presumptive death can be obtained, it
Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL
must be shown that the prior spouse had been absent for four consecutive
PROCEEDINGS IN THE FAMILY LAW, establishes the rules that govern
summary court proceedings in the Family Code: 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
“ART. 238.  Until modified by the Supreme Court, the four (4) essential requisites for the declaration of presumptive death:
procedural rules in this Title shall apply in all cases
provided for in this Code requiring summary court 1.      That the absent spouse has been missing for four
proceedings. Such cases shall be decided in an expeditious
manner without regard to technical rules.”
consecutive years, or two consecutive years if the disappearance
  occurred where there is danger of death under the circumstances
In turn, Article 253 of the Family Code specifies the cases covered by the laid down in Article 391, Civil Code;
rules in chapters two and three of the same title. It states:
  2.    That the present spouse wishes to remarry;
“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 3.     That the present spouse has a well-founded belief that the
are applicable.” (Emphasis supplied.) absentee is dead; and
 
In plain text, Article 247 in Chapter 2 of the same title reads: 4.    That the present spouse files a summary proceeding for the
  declaration of presumptive death of the absentee.12
“ART. 247. The judgment of the court shall be immediately
final and executory.”
  The Present Spouse Has the Burden of Proof to Show that All the
By express provision of law, the judgment of the court in a summary Requisites Under Article 41 of the Family Code Are Present
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 The burden of proof rests on the present spouse to show that all the
in a summary proceeding for the declaration of presumptive death of an
requisites under Article 41 of the Family Code are present. Since it is the
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 present spouse who, for purposes of declaration of presumptive death,
question abuse of discretion amounting to lack of jurisdiction. Such substantially asserts the affirmative of the issue, it stands to reason that
petition should be filed in the Court of Appeals in accordance with the the burden of proof lies with him/her. He who alleges a fact has the
Doctrine of Hierarchy of Courts. To be sure, even if the Court's original burden of proving it and mere allegation is not evidence.13
jurisdiction to issue a writ of certiorari is concurrent with the RTCs and

54
Declaration of Presumptive Death Under Article 41 of the Family Code spouse and that based on these efforts and inquiries, he/she believes that
Imposes a Stricter Standard  under the circumstances, the absent spouse is already dead. It requires
  exertion of active effort (not a mere passive one).
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 To illustrate this degree of “diligent and reasonable search” required by
a “well-founded belief" that the absentee is already dead before a petition the law, an analysis of the following relevant cases is warranted:
for declaration of presumptive death can be granted. We have had  
occasion to make the same observation in Republic v. Nolasco,14  where i.  Republic of the Philippines v. Court of Appeals (Tenth Div.)16
we noted the crucial differences between Article 41 of the Family Code  
and Article 83 of the Civil Code, to wit: 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-
Under Article 41, the time required for the presumption to arise has been founded belief that his absent spouse was already dead before he filed his
shortened to four (4) years; however, there is need for a judicial petition. His efforts to locate his absent wife allegedly consisted of the
declaration of presumptive death to enable the spouse present to remarry. following:
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 (1) He went to his in-laws’ house to look for her;
be no news that such absentee is still alive; or the absentee is generally (2) He sought the barangay captain’s aid to locate her;
considered to be dead and believed to be so by the spouse present, or is (3) He went to her friends’ houses to find her and inquired about
presumed dead under Articles 390 and 391 of the Civil Code. The Family her whereabouts among his friends;
Code, upon the other hand, prescribes as "well founded belief" that the (4) He went to Manila and worked as a part-time taxi driver to
absentee is already dead before a petition for declaration of presumptive look for her in malls during his free time;
death can be granted. (5) He went back to Catbalogan and again looked for her; and
(6) He reported her disappearance to the local police station and
Thus, mere absence of the spouse (even for such period required by the to the NBI.
law), lack of any news that such absentee is still alive, failure to  
communicate or general presumption of absence under the Civil Code Despite these alleged “earnest efforts,” the Court still ruled against the
would not suffice. This conclusion proceeds from the premise that Article present spouse. The Court found that he failed to present the persons
41 of the Family Code places upon the present spouse the burden of from whom he allegedly made inquiries and only reported his wife’s
proving the additional and more stringent requirement of “well-founded absence after the OSG filed its notice to dismiss his petition in the RTC.
belief” which can only be discharged upon a showing of proper and  
honest-to-goodness inquiries and efforts to ascertain not only the absent The Court also provided the following criteria for determining the
spouse’s whereabouts but, more importantly, that the absent spouse is still existence of a "well-founded belief" under Article 41 of the Family Code:
alive or is already dead.15
  The belief of the present spouse must be the result of proper and honest
The Requirement of Well-Founded Belief 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
The law did not define what is meant by “well-founded belief.” It depends of death of the absent spouse depends upon the inquiries to be drawn
upon the circumstances of each particular case. Its determination, so to from a great many circumstances occurring before and after the
speak, remains on a case-to-case basis. To be able to comply with this disappearance of the absent spouse and the nature and extent of the
requirement, the present spouse must prove that his/her belief was the inquiries made by [the] present spouse.18
result of diligent and reasonable efforts and inquiries to locate the absent

55
ii.  Republic v. Granada 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
Similarly in Granada, the Court ruled that the absent spouse failed to following:
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 (1)     She made inquiries about Jerry’s whereabouts from her in-laws,
that her brother had made inquiries from their relatives regarding the neighbours and friends; and
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 (2)      Whenever she went to a hospital, she saw to it that she looked
Republic of the Philippines v. Court of Appeals (Tenth Div.),20 the Court through the patients’ directory, hoping to find Jerry.
ruled against the present spouse, as follows:
These efforts, however, fell short of the “stringent standard” and degree of
Applying the foregoing standards to the present case, petitioner points out diligence required by jurisprudence for the following reasons:
that respondent Yolanda did not initiate a diligent search to locate her  
absent husband. While her brother Diosdado Cadacio testified to having First, the respondent did not actively look for her missing husband. It can
inquired about the whereabouts of Cyrus from the latter’s relatives, these be inferred from the records that her hospital visits and her consequent
relatives were not presented to corroborate Diosdado’s testimony. In short, checking of the patients’ directory therein were unintentional. She did not
respondent was allegedly not diligent in her search for her husband. purposely undertake a diligent search for her husband as her hospital
Petitioner argues that if she were, she would have sought information visits were not planned nor primarily directed to look for him. This Court
from the Taiwanese Consular Office or assistance from other government thus considers these attempts insufficient to engender a belief that her
agencies in Taiwan or the Philippines. She could have also utilized mass husband is dead.
media for this end, but she did not. Worse, she failed to explain these  
omissions. 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
iii. Republic v. Nolasco 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
In Nolasco, the present spouse filed a petition for declaration of present spouse, whose spouse had been missing, to seek the aid of the
presumptive death of his wife, who had been missing for more than four authorities or, at the very least, report his/her absence to the police.
years. He testified that his efforts to find her consisted of:  
Third, she did not present as witnesses Jerry’s relatives or their neighbours
(1) Searching for her whenever his ship docked in England; and friends, who can corroborate her efforts to locate Jerry. Worse, these
(2) Sending her letters which were all returned to him; and persons, from whom she allegedly made inquiries, were not even named.
(3) Inquiring from their friends regarding her whereabouts, which As held in Nolasco, the present spouse’s bare assertion that he inquired
all proved fruitless. from his friends about his absent spouse’s whereabouts is insufficient as
  the names of the friends from whom he made inquiries were not
The Court ruled that the present spouse’s investigations were too sketchy identified in the testimony nor presented as witnesses.
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 Lastly, there was no other corroborative evidence to support the
their common acquaintances, and not that she was dead. respondent’s claim that she conducted a diligent search. Neither was there
  supporting evidence proving that she had a well-founded belief other than
iv. The present case her bare claims that she inquired from her friends and in-laws about her
  husband’s whereabouts.

56
 
In sum, the Court is of the view that the respondent merely engaged in a [The] protection of the basic social institutions of marriage and the family
“passive search” where she relied on uncorroborated inquiries from her in- 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,
laws, neighbours and friends. She failed to conduct a diligent search
Section 12 of the Constitution there is set forth the following basic state
because her alleged efforts are insufficient to form a well-founded belief policy:
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 The State recognizes the sanctity of family life and shall protect and
acted on a well-founded belief of death of the absent spouse depends strengthen the family as a basic autonomous social institution.
upon the inquiries to be drawn from a great many circumstances
occurring before and after the disappearance of the absent spouse and the Strict Standard Prescribed Under Article 41 of the Family Code Is for
nature and extent of the inquiries made by [the] present spouse.” the Present Spouse’s Benefit
   
Strict Standard Approach Is Consistent with the State’s Policy to The requisite judicial declaration of presumptive death of the absent
Protect and Strengthen Marriage  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
In the above-cited cases, the Court, fully aware of the possible collusion of him/her from a criminal prosecution of bigamy under Article 349 of the
spouses in nullifying their marriage, has consistently applied the “strict Revised Penal Code which might come into play if he/she would
standard” approach. This is to ensure that a petition for declaration of prematurely remarry sans the court’s declaration.
presumptive death under Article 41 of the Family Code is not used as a  
tool to conveniently circumvent the laws. Courts should never allow Upon the issuance of the decision declaring his/her absent spouse
procedural shortcuts and should ensure that the stricter standard required presumptively dead, the present spouse’s good faith in contracting a
by the Family Code is met. In Republic of the Philippines v. Court of second marriage is effectively established. The decision of the competent
Appeals (Tenth Div.),23 we emphasized that: court constitutes sufficient proof of his/her good faith and his/her
criminal intent in case of remarriage is effectively negated.[28] Thus, for
In view of the summary nature of proceedings under Article 41 of the purposes of remarriage, it is necessary to strictly comply with the stringent
Family Code for the declaration of presumptive death of one’s spouse, the standard and have the absent spouse judicially declared presumptively
degree of due diligence set by this Honorable Court in the above- dead.
mentioned cases in locating the whereabouts of a missing spouse must be  
strictly complied with. There have been times when Article 41 of the Final word
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 xxx declared null and As a final word, it has not escaped this Court’s attention that the strict
void under Article 36 of the Family Code resort to Article 41 of the Family standard required in petitions for declaration of presumptive death has not
Code for relief because of the xxx summary nature of its proceedings. 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
The application of this stricter standard becomes even more imperative if and reiterated that anything less than the use of the strict standard
we consider the State’s policy to protect and strengthen the institution of 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
marriage.24  Since marriage serves as the family’s foundation25  and
41 of the Family Code.
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 WHEREFORE, in view of the foregoing, the assailed decision dated August 27,
the whim of the parties. In interpreting and applying Article 41, this is the 2008 of the Court of Appeals, which affirmed the order dated December 15, 2006
underlying rationale – to uphold the sanctity of marriage. Arroyo, Jr. v. of the Regional Trial Court, Branch 25, Koronadal City, South Cotabato, declaring
Court of Appeals27 reflected this sentiment when we stressed: Jerry F. Cantor presumptively dead is hereby REVERSED and SET ASIDE.

57
 CELERINA J. SANTOS, PETITIONER, VS. RICARDO T. SANTOS, Ricardo further alleged that he exerted efforts to locate Celerina.[9]  He
RESPONDENT. 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
G.R. No. 187061 | 2014-10-08 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
SECOND DIVISION
Trial Court petition since Celerina left.  He believed that she had passed
 
away.[12]
DECISION
 
 
Celerina claimed that she learned about Ricardo's petition only sometime
LEONEN, J.:
in October 2008 when she could no longer avail the remedies of new trial,
 
appeal, petition for relief, or other appropriate remedies.[13]
The proper remedy for a judicial declaration of presumptive death
 
obtained by extrinsic fraud is an action to annul the judgment. An
On November 17, 2008, Celerina filed a petition for annulment of
affidavit of reappearance is not the proper remedy when the person
judgment[14]  before the Court of Appeals on the grounds of extrinsic
declared presumptively dead has never been absent.
fraud and lack of jurisdiction. She argued that she was deprived her day
 
in court when Ricardo, despite his knowledge of her true residence,
This is a petition for review on certiorari filed by Celerina J. Santos,
misrepresented to the court that she was a resident of Tarlac City.
assailing the Court of Appeals' resolutions dated November 28, 2008 and
[15] According to Celerina, her true residence was in Neptune Extension,
March 5, 2009. The Court of Appeals dismissed the petition for the
Congressional Avenue, Quezon City.[16] This residence had been her and
annulment of the trial court's judgment declaring her presumptively dead.
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
On July 27, 2007, the Regional Trial Court of Tarlac City declared
notice of and opportunity to oppose the petition declaring her
petitioner Celerina J. Santos (Celerina) presumptively dead after her
presumptively dead.[18]
husband, respondent Ricardo T. Santos (Ricardo), had filed a petition for
 
declaration of absence or presumptive death for the purpose of remarriage
Celerina claimed that she never resided in Tarlac.  She also never left and
on  June 15, 2007.[1] Ricardo remarried on September 17, 2008.[2]
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
In his petition for declaration of absence or presumptive death, Ricardo
not true that she had been absent for 12 years. Ricardo was aware that
alleged that he and Celerina rented an apartment somewhere in San Juan,
she never left their conjugal dwelling in Quezon City.[22] It was he who
Metro Manila; after they had gotten married on June 18, 1980.[3] After a
left the conjugal dwelling in May 2008 to cohabit with another woman.
year, they moved to Tarlac City. They were engaged in the buy and sell
[23]  Celerina referred to a joint affidavit executed by their children to
business.[4]
support her contention that Ricardo made false allegations in his petition.
 
[24]
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
Celerina also argued that the court did not acquire jurisdiction over
Kong.[6] Ricardo initially refused but because of Celerina's insistence, he
Ricardo's petition because it had never been published in a newspaper.
allowed her to work abroad.[7] She allegedly applied in an employment
[25] She added that the Office of the Solicitor General and the Provincial
agency in Ermita, Manila, in February 1995. She left Tarlac two months
Prosecutor's Office were not furnished copies of Ricardo's petition.[26]
after and was never heard from again.[8]
 
 

58
The Court of Appeals issued the resolution dated November 28, 2008, Annulment of judgment is the remedy when the Regional Trial Court's
dismissing Celerina's petition for annulment of judgment for being a judgment, order, or resolution has become final, and the "remedies of new
wrong mode of remedy.[27]  According to the Court of Appeals, the trial, appeal, petition for relief (or other appropriate remedies) are no
proper remedy was to file a sworn statement before the civil registry, longer available through no fault of the petitioner."[36]
declaring her reappearance in accordance with Article 42 of the Family  
Code.[28] The grounds for annulment of judgment are extrinsic fraud and lack of
  jurisdiction.[37] This court defined extrinsic fraud in Stilianopulos v. City
Celerina filed a motion for reconsideration of the Court of Appeals' of Legaspi:[38]
resolution dated November 28, 2008.[29]  The Court of Appeals denied  
the motion for reconsideration in the resolution dated March 5, 2009.[30] 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
Hence, this petition was filed.
fraud were or could have been litigated, It is extrinsic or collateral when a
  litigant commits acts outside of the trial which prevents a parly from
The issue for resolution is whether the Court of Appeals erred in having a real contest, or from presenting all of his case, such that there is
dismissing Celerina's petition for annulment of judgment for being a no fair submission of the controversy.[39] (Emphasis supplied)
wrong remedy for a fraudulently obtained judgment declaring  
presumptive death. Celerina alleged in her petition for annulment of judgment that there was
  fraud when Ricardo deliberately made false allegations in the court with
Celerina argued that filing an affidavit of reappearance under Article 42 of respect to her residence.[40]  Ricardo also falsely claimed that she was
the Family Code is appropriate only when the spouse is actually absent absent for 12 years. There was also no publication of the notice of hearing
and the spouse seeking the declaration of presumptive death actually has of Ricardo's petition in a newspaper of general circulation.[41]  Celerina
a well-founded belief of the spouse's death.[31] She added that it would claimed that because of these, she was deprived of notice and opportunity
be inappropriate to file an affidavit of reappearance if she did not to oppose Ricardo's petition to declare her presumptively dead.[42]
disappear in the first place.[32] She insisted that an action for annulment  
of judgment is proper when the declaration of presumptive death is Celerina alleged that all the facts supporting Ricardo's petition for
obtained fraudulently.[33] declaration of presumptive death were false.[43] Celerina further claimed
  that the court did not acquire jurisdiction because the Office of the
Celerina further argued that filing an affidavit of reappearance under Solicitor General and the Provincial Prosecutor's Office were not given
Article 42 of the Family Code would not be a sufficient remedy because it copies of Ricardo's petition.[44]
would not nullify the legal effects of the judgment declaring her  
presumptive death.[34] These are allegations of extrinsic fraud and lack of jurisdiction. Celerina
  alleged in her petition with the Court of Appeals sufficient ground/s for
In Ricardo's comment,[35]  he argued that a petition for annulment of annulment of judgment.
judgment is not the proper remedy because it cannot be availed when  
there are other remedies available. Celerina could always file an affidavit Celerina filed her petition for annulment of judgment[45] on November
of reappearance to terminate the subsequent marriage. Ricardo iterated 17, 2008. This was less than two years from the July 27, 2007 decision
the Court of Appeals' ruling that the remedy afforded to Celerina under declaring her presumptively dead and about a month from her discovery
Article 42 of the Family Code is the appropriate remedy. 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 petition is meritorious. the action is barred by laches, which is the period allowed in case of lack
  of jurisdiction.[46]

59
  notice to the spouses of the subsequent marriage of the fact of
There was also no other sufficient remedy available to Celerina at the time reappearance; and (4) the fact of reappearance must either be undisputed
of her discovery of the fraud perpetrated on her. or judicially determined.
   
The choice of remedy is important because remedies carry with them The existence of these conditions means that reappearance does not
certain admissions, presumptions, and conditions. always immediately cause the subsequent marriage's termination. 
  Reappearance of the absent or presumptively dead spouse will cause the
The Family Code provides that it is the proof of absence of a spouse for termination of the subsequent marriage only when all the conditions
four consecutive years, coupled with a well-founded belief by the present enumerated in the Family Code are present.
spouse that the absent spouse is already dead, that constitutes a  
justification for a second marriage during the subsistence of another Hence, the subsequent marriage may still subsist despite the absent or
marriage.[47] presumptively dead spouse's reappearance (1) if the first marriage has
  already been annulled or has been declared a nullity; (2) if the sworn
The Family Code also provides that the second marriage is in danger of statement of the reappearance is not recorded in the civil registry of the
being terminated by the presumptively dead spouse when he or she subsequent spouses' residence; (3) if there is no notice to the subsequent
reappears. Thus: 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
Article 42. The subsequent marriage referred to in the preceding Article reappearance.
shall be automatically terminated by the recording of the affidavit of  
reappearance of the absent spouse, unless there is a judgment annulling
When subsequent marriages are contracted after a judicial declaration of
the previous marriage or declaring it void ab initio.
  presumptive death, a presumption arises that the first spouse is already
A sworn statement of the fact and circumstances of reappearance shall be dead and that the second marriage is legal. This presumption should
recorded in the civil registry of the residence of the parties to the prevail over the continuance of the marital relations with the first spouse.
subsequent marriage at the instance of any interested person, with due [48]  The second marriage, as with all marriages, is presumed valid.
notice to the spouses of the subsequent marriage and without prejudice to [49] The burden of proof to show that the first marriage was not properly
the fact of reappearance being judicially determined in case such fact is
disputed. (Emphasis supplied)
dissolved rests on the person assailing the validity of the second marriage.
  [50]
In other words, the Family Code provides the presumptively dead spouse  
with the remedy of terminating the subsequent marriage by mere This court recognized the conditional nature of reappearance as a cause
reappearance. for terminating the subsequent marriage in Social Security System v. Vda.
  de Bailon.[51]  This court noted[52]  that mere reappearance will not
The filing of an affidavit of reappearance is an admission on the part of terminate the subsequent marriage even if the parties to the subsequent
the first spouse that his or her marriage to the present spouse was marriage were notified if there was "no step . . . taken to terminate the
terminated when he or she was declared absent or presumptively dead. subsequent marriage, either by [filing an] affidavit [of reappearance] or
  by court action[.]"[53]  "Since the second marriage has been contracted
Moreover, a close reading of the entire Article 42 reveals that the because of a presumption that the former spouse is dead, such
termination of the subsequent marriage by reappearance is subject to presumption continues inspite of the spouse's physical reappearance, and
several conditions: (1) the non-existence of a judgment annulling the by fiction of law, he or she must still be regarded as legally an absentee
previous marriage or declaring it void ab initio; (2) recording in the civil until the subsequent marriage is terminated as provided by law.”[54]
registry of the residence of the parties to the subsequent marriage of the
sworn statement of fact and circumstances of reappearance; (3) due

60
The choice of the proper remedy is also important for purposes of marriage may also be terminated by filing "an action in court to prove the
determining the status of the second marriage and the liabilities of the reappearance of the absentee and obtain a declaration of dissolution or
spouse who, in bad faith, claimed that the other spouse was absent. termination of the subsequent marriage."[60]
   
A second marriage is bigamous while the first subsists.  However, a Celerina does not admit to have been absent. She also seeks not merely
bigamous subsequent marriage may be considered valid when the the termination of the subsequent marriage but also the nullification of its
following are present: effects. She contends that reappearance is not a sufficient remedy because
  it will only terminate the subsequent marriage but not nullify the effects
1) The prior spouse had been absent for four consecutive years; of the declaration of her presumptive death and the subsequent marriage.
2)  The spouse present has a well-founded belief that the absent spouse  
was already dead; Celerina is correct. Since an undisturbed subsequent marriage under
3)  There must be a summary proceeding for the declaration of Article 42 of the Family Code is valid until terminated, the "children of
presumptive death of the absent spouse; and such marriage shall be considered legitimate, and the property relations of
4) There is a court declaration of presumptive death of the absent spouse. the spouse[s] in such marriage will be the same as in valid
[55] marriages."[61] If it is terminated by mere reappearance, the children of
  the subsequent marriage conceived before the termination shall still be
A subsequent marriage contracted in bad faith, even if it was contracted considered legitimate.[62]  Moreover, a judgment declaring presumptive
after a court declaration of presumptive death, lacks the requirement of a death is a defense against prosecution for bigamy.[63]
well-founded belief[56]  that the spouse is already dead. The first  
marriage will not be considered as. validly terminated. Marriages It is true that in most cases, an action to declare the nullity of the
contracted prior to the valid termination of a subsisting marriage are subsequent marriage may nullify the effects of the subsequent marriage,
generally considered bigamous and void.[57]  Only a subsequent specifically, in relation to the status of children and the prospect of
marriage contracted in good faith is protected by law. prosecuting a respondent for bigamy.
   
Therefore, the party who contracted the subsequent marriage in bad faith However, "a Petition for Declaration of Absolute Nullity of Void Marriages
is also not immune from an action to declare his subsequent marriage may be filed solely by the husband or wife."[64]  This means that even if
void for being bigamous. The prohibition against marriage during the Celerina is a real party in interest who stands to be benefited or injured by
subsistence of another marriage still applies.[58] the outcome of an action to nullify the second marriage,[65] this remedy
  is not available to her.
If, as Celerina contends, Ricardo was in bad faith when he filed his  
petition to declare her presumptively dead and when he contracted the Therefore, for the purpose of not only terminating the subsequent
subsequent marriage, such marriage would be considered void for being marriage but also of nullifying the effects of the declaration of
bigamous under Article 35(4) of the Family Code. This is because the presumptive death and the subsequent marriage, mere filing of an
circumstances lack the element of "well-founded belief under Article 41 of affidavit of reappearance would not suffice. Celerina's choice to file an
the Family Code, which is essential for the exception to the rule against action for annulment of judgment will, therefore, lie.
bigamous marriages to apply.[59]  
  WHEREFORE, the case is  REMANDED  to the Court of Appeals for
The provision on reappearance in the Family Code as a remedy to effect determination of the existence of extrinsic fraud, grounds for nullity/
the termination of the subsequent marriage does not preclude the spouse annulment of the first marriage, and the merits of the petition.
who was declared presumptively dead from availing other remedies  
existing in law. This court had, in fact, recognized that a subsequent SO ORDERED.

61
 REPUBLIC OF THE PHILIPPINES, PETITIONER, V. LUDYSON C. Worried about his wife's sudden disappearance and the welfare of his
CATUBAG, RESPONDENT. children, private respondent took an emergency vacation and flew back home.
Private respondent looked for his wife in Enrile Cagayan, but to no avail. He
G.R. No. 210580 | 2018-04-18 then proceeded to inquire about Shanaviv's whereabouts from their close
friends and relatives, but they too could offer no help. Private respondent
REYES, JR., J: travelled as far as Bicol, where Shanaviv was born and raised, but he still
  could not locate her.[11]
Nature of the Petition  
  Private respondent subsequently sought the help of Bombo Radyo Philippines,
Challenged before this Court via Petition for Review on Certiorari[1] under one of the more well-known radio networks in the Philippines, to broadcast
Rule 45 of the Rules of Court are the Resolutions[2] of the Court of Appeals the fact of his wife's disappearance. Moreover, private respondent searched
(CA) in CA-G.R. SP. No. 131269 dated September 3, 2013[3] and December various hospitals and funeral parlors in Tuguegarao and in Bicol, with no
6, 2013.[4] The assailed Resolutions denied the petition for certiorari filed avail.[12]
by petitioner for failure to file a motion for reconsideration. Likewise  
challenged is the Decision[5] dated May 23, 2013 of the Regional Trial Court On May 4, 2012, after almost seven (7) years of waiting, private respondent
(RTC) of Tuao, Cagayan, Branch 11, declaring Ludyson C. Catubag's (private filed with the RTC a petition to have his wife declared presumptively dead.
respondent) spouse, Shanaviv G. Alvarez-Catubag (Shanaviv), as [13]
presumptively dead.  
  On May 23, 2013, the RTC rendered its Decision granting the Petition. The
The Antecedent Facts dispositive portion of the decision which reads:
   
Prior to the celebration of their marriage in 2003, private respondent and WHEREFORE, the petition is GRANTED. SHANAVIV G. ALVAREZ-
Shanaviv had been cohabiting with each other as husband and wife. Their CATUBAG is hereby adjudged PRESUMPTIVELY DEAD only for the
union begot two (2) children named Mark Bryan A. Catubag and Rose Mae A. purpose that petitioner LUDYSON C. CATUBAG may contract a marriage
Catubag, both of whom were born on May 18, 2000 and May 21, 2001, subsequent to what he had with SHANAVIV G. ALVAREZ-CATUBAG
respectively.[6] without prejudice to the reappearance of the latter.
 
 
SO ORDERED.[14]
In 2001, in order to meet the needs of his family, private respondent took
work overseas. Meanwhile, Shanaviv stayed behind in the Philippines to tend
On August 5, 2013, petitioner, through the Office of the Solicitor General
to the needs of their children.[7]
(OSG), elevated the judgment of the RTC to the CA via a Petition
 
for Certiorari under Rule 65 of the Revised Rules of Court. Petitioner's main
On June 26, 2003, private respondent and Shanaviv tied the knot in Rizal,
contention is that private respondent failed to establish a "well-founded belief
Cagayan. The marriage was solemnized by Honorable Judge Tomas D. Lasam
that his missing wife was already dead.[15]
at the Office of the Municipal Judge, Rizal, Cagayan.[8]
 
 
In its Resolution[16] dated September 3, 2013, the CA dismissed the petition
Sometime in April 2006, private respondent and his family were able to
because no motion for reconsideration was filed with the court a quo. The CA
acquire a housing unit located at Rio del Grande Subdivision, Enrile Cagayan.
ruled that such defect was fatal and warranted the immediate dismissal of the
Thereafter, private respondent returned overseas to continue his work. While
petition. The dispositive portion of the CA decision reads:
abroad, he maintained constant communication with his family.[9]
   
WHEREFORE, premises considered, the instant petition for certiorari
On July 12, 2006, while working abroad, private respondent was informed by
is DISMISSED.
his relatives that Shanaviv left their house and never returned. In the  
meantime, private respondent's relatives took care of the children.[10] SO ORDERED.[17]
   

62
On September 18, 2013, petitioner filed a Motion for Reconsideration, but the 253 of the Family Code. These provisions explicitly provide that actions for
same was denied by the CA in its Resolution[18]  dated December 6, 2013. presumptive death are summary in nature. Article 41 provides:
Hence, this Petition for Review on  Certiorari  under Rule 45 of the Rules of  
Court. Article 41. A marriage contracted by any person during subsistence of a
  previous marriage shall be null and void, unless before the celebration of
The Issues 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
The petitioner anchors its plea for the annulment of the assailed resolutions
is danger of death under the circumstances set forth in the provisions of
and the denial of private respondent's petition to declare his wife Article 391 of the Civil Code, an absence of only two years shall be
presumptively dead on the following grounds: sufficient.
   
I. THE HONORABLE COURT OF APPEALS ERRED IN DISMISSING THE For the purpose of contracting the subsequent marriage under the
PETITION FOR CERTIORARI ON THE GROUND THAT PETITIONER DID NOT preceding paragraph, the spouse present must institute  a summary
PREVIOUSLY FILE A MOTION FOR RECONSIDERATION BEFORE THE proceeding as provided in this Code for the declaration of presumptive
COURT A QUO.  death of the absentee, without prejudice to the effect of reappearance of
  the absent spouse. (Emphasis supplied)
II. THE HONORABLE COURT OF APPEALS ERRED IN DISMISSING THE  
PETITION FOR [CERTIORARI] ON THE GROUND THAT PETITIONER FAILED Likewise, Article 238 in relation to Article 253, under Title XI: SUMMARY
TO ATTACH THERETO COPIES OF ALL PERTINENT AND RELEVANT JUDICIAL PROCEEDINGS IN THE FAMILY LAW, of the Family Code provides:
DOCUMENTS AND PLEADINGS. 
  Article 238. Until modified by the Supreme Court, the procedural rules in
this Title shall apply in all cases provided for in this Code requiring
III. PRIVATE RESPONDENT HAS NOT ESTABLISHED A WELL-FOUNDED
summary court proceedings. Such cases shall be decided in an expeditious
BELIEF THAT HIS WIFE IS PRESUMPTIVELY DEAD.  manner without regard to technical rules.
   
IV. PRIVATE RESPONDENT FAILED TO PROVE HIS INTENTION TO RE- xxxx
MARRY.[19]  
  Article 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise
In sum, the instant petition rests on the resolution of two issues: (1) whether govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124
or not petitioner's resort to a Petition for  Certiorari  under Rule 65 to and 217, insofar as they are applicable. (Emphasis Supplied)
challenge the decision of the RTC declaring Shanaviv presumptively dead was  
proper; and (2) whether or not private respondent complied with the Consequently, parties cannot seek reconsideration, nor appeal decisions in
essential requisites of a petition for declaration of presumptive death under summary judicial proceedings under the Family Code because by express
Article 41 of the Family Code. mandate of law, judgments rendered thereunder are immediately final and
 The Court's Ruling executory.[21]  As explained by the Court in  Republic of the Phils. vs.
  Bermudez-Lorino,[22] citing Atty. Veloria vs. Comelec:[23]
The petition is impressed with merit.  
  [T]he right to appeal is not a natural right nor is it a part of due process,
Basic is the rule that the nature of the proceeding determines the appropriate for it is merely a statutory privilege. Since, by express mandate of Article
remedy or remedies available. Hence, a party aggrieved by an action of a 247 of the Family Code, all judgments rendered in summary judicial
proceedings in Family Law are "immediately final and executory," the
court must first correctly determine the nature of the order, resolution, or
right to appeal was not granted to any of the parties therein. The
decision, in order to properly assail it.[20] Republic of the Philippines, as oppositor in the petition for declaration of
  presumptive death, should not be treated differently. It had no right to
Since what is involved in the instant case is a petition for declaration of appeal the RTC decision of November 7, 2001.[24]
presumptive death, the relevant provisions of law are Articles 41, 238, and  

63
 Further, it is well settled in our laws and jurisprudence that a decision  
that has acquired finality becomes immutable and unalterable. As such, it Notably, the records reveal that private respondent has complied with the
may no longer be modified in any respect even if the modification is first, second, and fourth requisites. Thus, what remains to be resolved is
meant to correct erroneous conclusions of fact or law and whether it will whether or not private respondent successfully discharged the burden of
be made by the court that rendered it or by the highest court of the land.
establishing a well-founded belief that his wife, Shanaviv, is dead.
[25]
 
 
While parties are precluded from filing a motion for reconsideration or a The Court in Cantor,[32] pointed out that the term, "well-founded belief" has
notice of appeal, in a petition for declaration of presumptive death, they no exact definition under the law. In fact, the Court notes that such belief
may challenge the decision of the court  a quo  through a petition depends on the circumstances of each particular case. As such, each petition
for certiorari to question grave abuse of discretion amounting to lack of must be judged on a case-to-case basis.[33]
jurisdiction.[26]  
  This is not to say, however, that there is no guide in establishing the existence
In  Republic vs. Sareñogon, Jr.,[27]  the Court outlined the legal remedies of a well-founded belief that an absent spouse is already dead. In Republic vs.
available in a summary proceeding for the declaration of presumptive death. Orcelino-Villanueva,[34]  the Court, through Justice Mendoza, provided that
If aggrieved by the decision of the RTC, then filing with the CA a Petition such belief must result from diligent efforts to locate the absent spouse. Such
for  Certiorari  under Rule 65 would be proper. Any subsequent decision by diligence entails an active effort on the part of the present spouse to locate
the CA may then be elevated to the Court via a Petition for Review the missing one. The mere absence of a spouse, devoid of any attempt by the
on Certiorari under Rule 45.[28] present spouse to locate the former, will not suffice. The Court expounded on
  the required diligence, to wit:
Considering the foregoing, the Court finds that petitioner's resort  
to  certiorari  under Rule 65 of the Rules of Court to challenge the RTC's The well-founded belief in the absentee's death requires the present
Order declaring Shanaviv presumptively dead was proper. 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
Having determined the propriety of petitioner's mode of challenging the RTC's efforts and inquiries, he/she believes that under the circumstances, the
absent spouse is already dead. It necessitates exertion of active effort (not
Order, the Court shall now proceed to tackle the issue of whether or not
a mere passive one). Mere absence of the spouse (even beyond the period
private respondent has sufficiently complied with the essential requisites in a required by law), lack of any news that the absentee spouse is still alive,
petition for declaration of presumptive death. mere failure to communicate, or general presumption of absence under
  the Civil Code would not suffice. The premise is that Article 41 of the
Prevailing jurisprudence has time and again pointed out four (4) requisites Family Code places upon the present spouse the burden of complying
under Article 41 of the Family Code that must be complied with for the with the stringent requirement of "well-founded belief” which can only be
declaration of presumptive death to prosper: first, the absent spouse has been discharged upon a showing of proper and honest-to-goodness inquiries
missing for four consecutive years, or two consecutive years if the and efforts to ascertain not only the absent spouse's whereabouts but,
disappearance occurred where there is danger of death under the more importantly, whether the absent spouse is still alive or is already
circumstances laid down in Article 391 of the Civil Code.[29]  Second, the dead.[35] (Citations omitted)
present spouse wishes to remarry. Third, the present spouse has a well-  
founded belief that the absentee is dead. Fourth, the present spouse files for a Furthermore, jurisprudence is replete with cases which help determine
summary proceeding for the declaration of presumptive death of the whether belief of an absent spouses' death is well-founded or not. A perusal of
absentee.[30] the cases of  Republic vs. Granada,[36]  Cantor,[37]  and  Orcelino-
  Villanueva[38]reveal the circumstances which do not meet the Court's
In seeking a declaration of presumptive death, it is the present spouse who standards in establishing a "well-founded belief."
has the burden of proving that all the requisites under Article 41 of the Family  
Code are present. In the instant case, since it is private respondent who In  Granada,[39]  the present spouse alleged that she exerted efforts in
asserts the affirmative of the issue, then it is his duty to substantiate the same. locating her absent spouse by inquiring from the latter's relatives regarding
He who alleges a fact has the burden of proving it and mere allegations will his whereabouts. The Court ruled against the present spouse and stated that
not suffice.[31] the mere act of inquiring from relatives falls short of the diligence required by
64
law. It pointed out that the present spouse did not report to the police nor The foregoing conduct of the present spouse led the Court to conclude that
seek the aid of mass media. Even worse, the present spouse did not even her efforts in searching for her absent spouse were insincere. Ultimately, the
bother to present any of the absent spouses' relatives to corroborate her Courts considered these attempts insufficient to comply with the requirement
allegations.[40] of conducting a reasonable, diligent, and active search.[45]
   
Similarly in Cantor,[41] the present spouse alleged that she exerted "earnest In Orcelino-Villanueva, the Court likewise ruled that the present spouse failed
efforts" in attempting to locate her missing husband. She claimed that she to prove that she had a well-founded belief that her absent spouse was
made inquiries with their relatives, neighbors, and friends as to his already dead. In said case, the present spouse began her "search" by returning
whereabouts. She even stated that she would take the time to look through home from her work overseas to look for her missing husband. She then
the patient's directory whenever she would visit a hospital.[42] inquired from her in-laws and common friends as to his whereabouts. The
  present spouse even went as far as Negros Oriental, where the absent spouse
Despite these alleged "earnest efforts,'' the Court still ruled otherwise. It held was born. Additionally, the present spouse claimed that fifteen (15) years
that the present spouse engaged in a mere "passive-search" Applying the have already lapsed since her husband's disappearance.[46]
"stringent-standards" and degree of diligence required by jurisprudence, the  
Court pointed out four acts of the present spouse which contradict the claim In that case, the Court held that the factual circumstances were very similar to
of a diligent and active search,[43] to wit: the two aforementioned cases. It further held that it was erroneous for the
  lower courts to grant the petition for declaration of presumptive death. The
First, the respondent did not actively look for her missing husband. It can Court explained why the present spouse's allegations should not have been
be inferred from the records that her hospital visits and her consequent given credence, to wit:
checking of the patients' directory therein were unintentional. She did not  
purposely undertake a diligent search for her husband as her hospital Applying the standard set forth by the Court in the previously cited cases,
visits were not planned nor primarily directed to look for him. This Court particularly  Cantor, Edna's efforts failed to satisfy the required well-
thus considers these attempts insufficient to engender a belief that her founded belief of her absent husband's death.
husband is dead.  
  Her claim of making diligent search and inquiries remained unfounded as
Second, she did not report Jerry's absence to the police nor did she seek it merely consisted of bare assertions without any corroborative evidence
the aid of the authorities to look for him. While a finding of well-founded on record. She also failed to present any person from whom she inquired
belief varies with the nature of the situation in which the present spouse about the whereabouts of her husband. She did not even present her
is placed, under present conditions, we find it proper and prudent for a children from whom she learned the disappearance of her husband. In
present spouse, whose spouse had been missing, to seek the aid of the fact, she was the lone witness. Following the basic rule that mere
authorities or, at the very least, report his/her absence to the police. allegation is not evidence and is not equivalent to proof, the Court cannot
  give credence to her claims that she indeed exerted diligent efforts to
Third, she did not present as witnesses Jerry's relatives or their neighbors locate her husband.[47] (Citations omitted)
and friends, who can corroborate her efforts to locate Jerry. Worse, these  
persons, from whom she allegedly made inquiries, were not even named.
Having laid out the foregoing jurisprudential guidelines in determining the
As held in Nolasco, the present spouse's bare assertion that he inquired
existence of a "well-founded belief," the Court now shifts focus to the specific
from his friends about his absent spouse's whereabouts is insufficient as
the names of the friends from whom he made inquiries were not circumstances surrounding the current case. In the case at bar, private
identified in the testimony nor presented as witnesses. respondent first took a leave of absence from his work in the United Arab
  Emirates and returned to the Philippines to search for Shanaviv. He then
Lastly, there was no other corroborative evidence to support the proceeded to inquire about his wife's whereabouts from their friends and
respondent's claim that she conducted a diligent search. Neither was relatives in Cagayan and Bicol. Next, private respondent aired over Bombo
there supporting evidence proving that she had a well-founded belief Radyo Philippines, a known radio station, regarding the fact of disappearance
other than her bare claims that she inquired from her friends and in-laws of his wife. Finally, he claims to have visited various hospitals and funeral
about her husband's whereabouts.[44] (Citations omitted) parlors in Tuguegarao City and nearby municipalities.[48]
   

65
Applying the foregoing standards discussed by the Court in  Cantor, that the missing spouse is dead. In Republic vs. Court of Appeals (Tenth Div.),
[49]  Granada,[50]  and  Orcelino-Villanueva,[51]  the Court finds that [54] the Court cautioned against such a liberal approach. It opined that to do
private respondent's efforts falls short of the degree of diligence required by so would allow easy circumvention and undermining of the Family Code. The
jurisprudence for the following reasons: Court stated:
   
First, private respondent claims to have inquired about his missing wife's There have been times when Article 41 of the Family Code had been
whereabouts from both friends and relatives. Further, he claims to have resorted to by parties wishing to remarry knowing fully well that their
carried out such inquiries in the place where they lived and in the place alleged missing spouses are alive and well. It is even possible that those
where his wife was born and raised. However, private respondent failed to who cannot have their marriages x x x declared null and void under
present any of these alleged friends or relatives to corroborate these Article 36 of the Family Code resort to Article 41 of the Family Code for
relief because of the x x x summary nature of its proceedings.
"inquiries." Moreover, no explanation for such omission was given. As held in
 
the previous cases, failure to present any of the persons from whom inquiries Stated otherwise, spouses may easily circumvent the policy of the laws on
were allegedly made tends to belie a claim of a diligent search. marriage by simply agreeing that one of them leave the conjugal abode
  and never return again. Thus, there is a need for courts to exercise
Second, private respondent did not seek the help of other concerned prudence in evaluating petitions for declaration of presumptive death of
government agencies, namely, the local police authorities and the National an absent spouse. A lenient approach in applying the standards of
Bureau of Investigation (NBI). In  Cantor, the Court reasoned that while a diligence required in establishing a "well-founded belief” would defeat the
finding of well-founded belief varies with the nature of the situation, it would State's policy in protecting and strengthening the institution of marriage.
still be prudent for the present spouse to seek the aid of the authorities in [55]
searching for the missing spouse. Absent such efforts to employ the help of  
local authorities, the present spouse cannot be said to have actively and On this basis, it is clear that private respondent failed to fulfill the
diligently searched for the absentee spouse.[52] requisite of establishing a well-founded belief that the absentee spouse is
  dead. Thus, the RTC should have denied private respondent's petition for
Finally, aside from the certification of Bombo Radyo's manager, private declaration of presumptive death.
respondent bases his "well-founded belief” on bare assertions that he  
exercised earnest efforts in looking for his wife. Again, the present spouse's In fine, having determined the propriety of petitioner's resort to a petition
bare assertions, uncorroborated by any kind of evidence, falls short of the for  certiorari  and private respondent's failure to meet the stringent
diligence required to engender a well-founded belief that the absentee spouse
standard and degree of due diligence required by jurisprudence to support
is dead.
  his claim of a "well-founded belief' that his wife, Shanaviv, is already dead,
Taken together, the Court is of the view that private respondent's efforts in it is proper for the Court to grant the petition. Consequently, the other
searching for his missing wife, Shanaviv, are merely passive. Private issues raised by the petitioner need not be discussed further.
respondent could have easily convinced the Court otherwise by providing  
evidence which corroborated his "earnest-efforts." Yet, no explanation or WHEREFORE the petition is GRANTED. Accordingly, the Decision dated
justification was given for these glaring omissions. Again, he who alleges a May 23, 2013 of the Regional Trial Court of Tuao, Cagayan, Branch 11
fact has the burden of proving it by some other means than mere allegations. and the Resolutions dated September 3, 2013 and December 6, 2013
rendered by the Court of Appeals in CA-G.R. S.P. No. 131269 are
Stripped of private respondent's mere allegations, only the act of broadcasting hereby ANNULED and SET ASIDE. Consequently, the petition of private
his wife's alleged disappearance through a known radio station was respondent Ludyson C. Catubag to have his wife, Shanaviv G. Alvarez-
corroborated.[53]  This act comes nowhere close to establishing a well- Catubag, declared presumptively dead is DENIED.
founded belief that Shanaviv has already passed away. At most, it just
reaffirms the unfortunate theory that she abandoned the family.
  SO ORDERED.
To accept private respondent's bare allegations would be to apply a liberal
approach in complying with the requisite of establishing a well-founded belief
66
 CESAR REYES, petitioner-appellant, vs. AGRIPINO ZABALLERO, ET unjust that the payment be made in Japanese military notes which
AL., respondents-appellees. had considerably devaluated, and that he had an option according to
the contract to have the payment made in Philippine or United States
G.R. No. L-3561 | 1951-05-23 currency. After some discussion, and as plaintiff-appellee remained
adamant in hie refusal, defendant-appellant Exequiel Zaballero
BENGZON, J.: announced that the next day, December 1, 1944 he would tender the
whole balance of P5,812; which he did by way of complete
During the Japanese occupation the creditor of a prewar debt reluctantly satisfaction of the entire indebtedness. Plaintiff-appellee, acting upon
received Japanese military notes tendered in full payment of his credit. After advice given by his attorneys to whom he had meanwhile resorted for
liberation he sued for recovery of the debt, contending that his acceptance of guidance in his plight, received the money and executed on December
the money was invalidated by duress. This is that suit, coming from the Court 1, 1944, the notarial deed of release of the real estate mortgage (Exh.
of Appeals wherein the payment was held valid and the debt fully discharged. B, Rec. App., pp. 16-19) which was registered in the following day at
the office of the Register of Deeds. On the same day, December 1,
The creditor-appellant has submitted a brief vigorously ascribing error to the 1944, that he received payment, the mortgagee, now plaintiff-
court's holding: (1) that the facts and circumstances of the case are not appellee, executed an affidavit in secret, without defendants'
sufficient to constitute the duress that would invalidate the payment made by knowledge, before Notary Public Alfredo Bonus (who also ratified the
the debtor and (2) that the discharge in full with Japanese military notes of deed of release) stating that he had accepted under protest and
the pre-war obligation calling for payments in ten yearly installments in "obligado por las circunstancias actuales", the payment of P5,200 plus
Philippine money or its equivalent in U. S. currency, at the option of the interest in the sum of P612, and that he had deposited the whole
creditor, was properly made. amount paid by the debtors in the Philippine National Bank in
Lucena, as trustee for the said amount. It is uncontroverted that the
The case is adequately related by the Court of Appeals as follows: deposit was made in a special account which remains untouched to
this day."
"This case originated from a loan of P6,500 with interest at 10 per
cent per annum payable in advance, made by the plaintiff-appellee, On the point of duress that Court makes the finding,
Dr. Cesar Reyes, to the defendants-appellants Zaballero on October 1,
1942. The defendants-appellants secured the payment with a first "The Lower Court also found that the plaintiff-appellee accepted the payment
mortgage on 10 parcels of land, situated in the municipality of tendered by defendants-appellants because of the menacing attitude of the
Lucena, Quezon Province, more particularly described in the Deed of latter. This finding is not sustained by the preponderance of evidence and
Mortgage Exhibit A, appearing on pages 6-16 in the Record of there is no proof that the plaintiff creditor was threatened into accepting the
Appeals. Paragraph 2 of said Deed of Mortgage is as follows: payment, except the latter's own testimony that the debtor told him that he
ought to know that the Japanese disliked non-acceptance of their money.
"`2. Los deudores hipotecarios se obligan a pagar el capital dentro del
termino de diez (10) años contados desde esta fecha, mediante "This averment, however, was denied by the appellant Exequiel Zaballero,
amortizaciones anuales de SEISCIENTOS CINCUENTA PESOS (P650) who made the payment, and it is significant that in his affidavit of protest
en moneda filipina o su equivalente en moneda de los EE. UU. de (Exh. C) the appellee creditor made no mention whatever of any threat on the
America a opcion del acreedor hipotecario, y satisfacer los intereses part of the defendant, merely stating that he was `obligado por las
convenidos . . ..' circunstancias actuales' . . ..

"The installments due for 1942 and 1943, totalling the sum of P1,300 "The testimony of the Notary fails to show that any threat had been made to
plus interest were paid in Japanese Military Scrip and the payments secure the assent of the appellee. That duress was required is indeed
were unreservedly accepted. On November 30, 1944, defendant- questionable, since the debtor could have judicially consigned the money if
appellant Exequiel Zaballero offered to pay the third installments and the creditor persisted in refusing it. In other words, the appellee decided to
its interest which fell due in October of the same year; but plaintiff- accept the payment reluctantly but voluntarily, in the expectation that he
appellee refused to accept on the ground that it was immoral and
67
could adopt nullifying measures that would preserve his rights and not matter, he could have burned the Japanese notes, or thrown them into the
because of any undue influence exercised by another person . . ." sea, without in the least obliterating the legal effect of his receipt of the
money.
The appellate court declared, in short, that Cesar Reyes received the money
on December 1, 1944 without any duress, without any protest, albeit Had the creditor interposed a downright refusal, the debtors could have made
reluctantly, executed the notarial document of release of the mortgage and a valid consignment of the money and thus get a discharge. The creditor
immediately thereafter: (a) swore to an affidavit, in secret, without the should not therefore, by means of the secret protest do indirectly what he
debtors' knowledge, declaring that "compelled by the present circumstances" could not do directly. At this juncture we are confronted with appellant's
he had accepted the payment under protest, and (b) deposited the amount in argument that the consignation could not discharge the whole indebtedness,
the Philippine National Bank in a special account, as trustee. especially in so far as the installments not yet due, because the debtor had no
right to accelerate payment. There is indeed something to that contention.
Under the facts above related we do not see how the payment may be The creditor was entitled to interest upon the other annual installments and
invalidated on the ground of duress. The finding of the Court of Appeals on yet the Usury Law prohibits collection of interest in advance for more than
such factual issue is final. And from the facts declared by it we cannot, as a one year. 1 However that issue not having been raised in the lower court, the
question of law, conclude that there was duress. debtors had no opportunity to prove that the term had been established for
their exclusive benefit. Anyway the equitable consideration should not be
According to the Civil Code, there is duress or intimidation when one of the overlooked that if the creditor had rejected the money, it could have been
contracting parties is inspired by a rational and well- grounded fear of utilized by the debtors for other valuable or useful purposes. The money kept
suffering an imminent and serious injury to his person or property, or to the by the creditor is now utterly valueless.
person or property of his spouse, descendants or ascendants. (Art. 1267, Civil
Code.) We have to admit that the creditor accepted the money grudgingly or
reluctantly. But this court has already ruled that mere reluctance does not
Describing how or why he was afraid to reject the tendered payment, detract from the voluntariness of one's acts.
appellant testified that after he had declined to receive payment, "the debtors
told him that he ought to know that the Japanese disliked non-acceptance of "There must, then, be a distinction to be made between a case where a person
their money" and that, as he remained adamant, the appellees induced gives his consent reluctantly and even against his good sense and judgment,
Attorney Bonus to counsel appellant to accept the payment reminding him of and where he, in reality, gives no consent at all, as where he executes a
"antecedents" - other cases that had reached the Provincial Fiscal's office of contract or performs an act against his will under a pressure which he cannot
persons who refused to accept the Japanese military notes. resist. It is clear that one acts as voluntarily and independently in the eye of
the law when he acts reluctantly and with hesitation as when he acts
However the Court of Appeals discredited appellant's testimony on the first spontaneously and joyously. Legally speaking he acts as voluntarily and freely
point. And as to the alleged advice by Attorney Bonus the Court of Appeals when he acts wholly against his better sense and judgment as when he acts in
said nothing about it, and we are not free to look into the record to uncover conformity with them. Between the two acts there is no difference in
new facts contradicting those found by the appellate court. law . . ." (Vales vs. Villa, 35 Phil., 789.)

Appellant's statement in the affidavit that he received the money "obligado Concurring with the Court of Appeals, as we must, on the finding that the
por las circunstancias actuales" besides being self-serving and not binding payment was voluntarily accepted, we deem it unnecessary to go into the
upon the adverse party, is too indefinite to justify a finding of duress, for it alleged option of the creditor to select United States currency, because such
may refer to the circumstance that Japanese "fiat" money was then the current voluntary acceptance was in effect a waiver of the option. Besides, our recent
money and that payments of debts were then being made with it despite its ruling in Tambunting de Legarda vs. Desbarats Miailhe, etc., (88 Phil., 637)
very depreciated valuation. sufficiently answers appellant's argument premised on such option.

As it is, the important thing is that the creditor, Cesar Reyes received the The appealed decision is affirmed, with costs.
money, and executed the release. What he did afterwards without the
knowledge or consent of the debtors is entirely of no consequence. For that
68
 JOEL JIMENEZ, plaintiff-appellee, vs. REMEDIOS CANIZARES, After hearing, at which the defendant was not present, on 11 April
defendant. Republic of the Philippines, intervenor-appellant. 1957 the Court entered a decree annulling the marriage between the
plaintiff and the defendant.
G.R. No. L-12790 | 1960-08-31
On 26 April 1957 the city attorney filed a motion for reconsideration
PADILLA, J.:
of the decree thus entered, upon the ground, among others, that the
defendant's impotency has not been satisfactorily established as
In a complaint filed on 7 June 1955 in the Court of First Instance of
required by law; that she had not been physically examined because
Zamboanga the plaintiff Joel Jimenez prays for a decree annulling his
she had refused to be so examined; that instead of annulling the
marriage to the defendant Remedios Cañizares contracted on 3 August
marriage the Court should have punished her for contempt of court
1950 before a judge of the municipal court of Zamboanga City, upon
and compelled her to undergo a physical examination and submit a
the ground that the orifice of her genitals or vagina was too small to
medical certificate; and that the decree sought to be reconsidered
allow the penetration of a male organ or penis for copulation; that the
would open the door to married couples, who want to end their
condition of her genitals as described above existed at the time of
marriage to collude or connive with each other by just alleging
marriage and continues to exist; and that for that reason he left the
impotency of one of them.
conjugal home two nights and one day after they had been married.

He prayed that the complaint be dismissed or that the wife be

On 14 June 1955 the wife was summoned and served with a copy of
subjected to a physical examination. Pending resolution of his motion,
the complaint. She did not file an answer.
the city attorney timely appealed from the decree. On 13 May 1957
the motion for reconsideration was denied.
On 29 September 1956, pursuant to the provisions of article 88 of the
Civil Code, the Court directed the city attorney of Zamboanga to
The question to determine is whether the marriage in question may be
inquire whether there was a collusion between the parties and, if there
annulled on the strength only of the lone testimony of the husband
was no collusion, to intervene for the State to see that the evidence for
who claimed and testified that his wife was and is impotent.
the plaintiff is not a frame-up, concocted or fabricated.

The latter did not answer the complaint, was absent during the
On 17 December 1956 the Court entered an order requiring the
hearing, and refused to submit to a medical examination.
defendant to submit to a physical examination by a competent lady
physician to determine her physical capacity for copulation and to
Marriage in this country is an institution in which the community is
submit, within ten days from receipt of the order, a medical certificate
deeply interested. The state has surrounded it with safeguards to
on the result thereof.
maintain its purity, continuity and permanence.
On 14 March 1957 the defendant was granted additional five days
The security and stability of the state are largely dependent upon it. It
from notice to comply with the order of 17 December 1956 with
is the interest and duty of each and every member of the community to
warning that her failure to undergo medical examination and submit
prevent the bringing about of a condition that would shake its
the required doctor's certificate would be deemed lack of interest on
foundation and ultimately lead to its destruction.
her part in the case and that judgment upon the evidence presented by
her husband would be rendered.

69
 The incidents of the status are governed by law, not by will of the The decree appealed from is set aside and the case remanded to the
parties. lower court for further proceedings in accordance with this decision,
without pronouncement as to costs.
The law specifically enumerates the legal grounds, that must be proved
to exist by indubitable evidence, to annul a marriage.

In the case at bar, the annulment of the marriage in question was

decreed upon the sole testimony of the husband who was expected to
give testimony tending or aiming at securing the annulment of his
marriage he sought and seeks.

Whether the wife is really impotent cannot be deemed to have been

satisfactorily established, because from the commencement of the
proceedings until the entry of the decree she had abstained from
taking part therein.

Although her refusal to be examined or failure to appear in court show

indifference on her part, yet from such attitude the presumption
arising out of the suppression of evidence could not arise or be
inferred, because women of this country are by nature coy, bashful and
shy and would not submit to a physical examination unless compelled
to by competent authority.

This the Court may do without doing violence to and infringing upon
her constitutional right.

A physical examination in this case is not self-incrimination. She is not

charged with any offense.

She is not being compelled to be a witness against herself. 1

"Impotency being an abnormal condition should not be presumed. The
presumption is in favor of potency." 2

The lone testimony of the husband that his wife is physically incapable
of sexual intercourse is insufficient to tear asunder the ties that have
bound them together as husband and wife.

70
 EMILIO R. TUASON, petitioner, vs.
 In addition to her prayer for annulment of marriage, private respondent
COURT OF APPEALS and MARIA VICTORIA L. TUASON, respondents. prayed for powers of administration to save the conjugal properties from
further dissipation. 1 
G.R. No. 116607 | 1996-04-10
Petitioner answered denying the imputations against him. As affirmative
PUNO, J.: 
defense, he claimed that he and private respondent were a normal
married couple during the first ten years of their marriage and actually
This petition for review on certiorari seeks to annul and set aside the
begot two children during this period; that it was only in 1982 that they
decision dated July 29, 1994 of the Court of Appeals in CA-G.R. CV No.
began to have serious personal differences when his wife did not accord
37925 denying petitioner's appeal from an order of the Regional Trial
the respect and dignity due him as a husband but treated him like a
Court, Branch 149, Makati in Civil Case No. 3769. 
persona non grata; that due to the "extreme animosities " between them,
he temporarily left the conjugal home for a "cooling-off period" in 1984;
This case arose from the following facts: 
that it is private respondent who had been taking prohibited drugs and
had a serious affair with another man; that petitioner's work as owner and
In 1989, private respondent Maria Victoria Lopez Tuason filed with the
operator of a radio and television station exposed him to malicious gossip
Regional Trial Court, Branch 149, Makati a petition for annulment or
linking him to various women in media and the entertainment world; and
declaration of nullity of her marriage to petitioner Emilio R. Tuason.
that since 1984, he experienced financial reverses in his business and was
compelled, with the knowledge of his wife, to dispose of some of the
In her complaint, private respondent alleged that she and petitioner were
conjugal shares in exclusive golf and country clubs. Petitioner petitioned
married on June 3, 1972 and from this union, begot two children; that at
the court to allow him to return to the conjugal home and continue his
the time of the marriage, petitioner was already psychologically
administration of the conjugal partnership. 
incapacitated to comply with his essential marital obligations which
became manifest afterward and resulted in violent fights between
After the issues were joined, trial commenced on March 30, 1990. Private
husband and wife; that in one of their fights, petitioner inflicted physical
respondent presented four witnesses, namely, herself; Dr. Samuel Wiley, a
injuries on private respondent which impelled her to file a criminal case
Canon Law expert and marriage counselor of both private respondent and
for physical injuries against him; that petitioner used prohibited drugs,
petitioner; Ms. Adelita Prieto, a close friend of the spouses, and Atty. Jose
was apprehended by the authorities and sentenced to a one-year
F. Racela IV, private respondent's counsel. Private respondent likewise
suspended penalty and has not been rehabilitated; that petitioner was a
submitted documentary evidence consisting of newspaper articles of her
womanizer, and in 1984, he left the conjugal home and cohabited with
husband's relationship with other women, his apprehension by the
three women in succession, one of whom he presented to the public as his
authorities for illegal possession of drugs; and copies of a prior a church
wife; that after he left the conjugal dwelling, petitioner gave minimal
annulment decree. 2 The parties' marriage was clerically annulled by the
support to the family and even refused to pay for the tuition fees of their
Tribunal Metropolitanum Matrimonial which was affirmed by the National
children compelling private respondent to accept donations and dole-outs
Appellate Matrimonial Tribunal in 1986. 3 
from her family and friends; that petitioner likewise became a spendthrift
and abused his administration of the conjugal partnership by alienating
During presentation of private respondent's evidence, petitioner, on April
some of their assets and incurring large obligations with banks, credit card
18, 1990, filed his Opposition to private respondent's petition for
companies and other financial institutions, without private respondent's
appointment as administratrix of the conjugal partnership of gains. 
consent; that attempts at reconciliation were made but they all failed
because of petitioner's refusal to reform.
After private respondent rested her case, the trial court scheduled the
reception of petitioner's evidence on May 11, 1990. 

71
On May 8, 1990, two days before the scheduled hearing , a counsel for Petitioner appealed before the Court of Appeals the order of the trial court
petitioner moved for a postponement on the ground that the principal denying his petition for relief from judgment. On July 29, 1994, the Court
counsel was out of the country and due to return on the first week of of Appeals dismissed the appeal and affirmed the order of the trial court.
June. 4 The court granted the motion and reset the hearing to June 8, 10 
1990. 5 
Hence this petition. 
On June 8, 1990, petitioner failed to appear. On oral motion of private
respondent, the court declared petitioner to have waived his right to The threshold issue is whether a petition for relief from judgment is
present evidence and deemed the case submitted for decision on the basis warranted under the circumstances of the case. 
of the evidence presented. 
We rule in the negative. 
On June 29, 1990, the trial court rendered judgment declaring the nullity
of private respondent's marriage to petitioner and awarding custody of the A petition for relief from judgment is governed by Rule 38, Section 2 of
children to private respondent. The court ruled:  the Revised Rules of Court which provides: 

WHEREFORE, in view of the foregoing, the marriage contracted by Ma. Sec. 2. Petition to Court of First Instance for relief from judgment or other
Victoria L. Tuason and Emilio R. Tuason on June 3, 1972 is declared null proceeding thereof. When a judgment or order is entered, or any other
and void ab initio on the ground of psychological incapacity on the part of proceeding is taken, against a party in a Court of First Instance through
the defendant under Sec. 36 of the Family Code. Let herein judgment of fraud, accident, mistake, or excusable negligence, he may file a petition in
annulment be recorded in the registry of Mandaluyong, Metro Manila such court and in the same cause praying that the judgment, order or
where the marriage was contracted and in the registry of Makati, Metro proceeding be set aside. 
Manila where the marriage is annulled. 
Under the rules, a final and executory judgment or order of the Regional
The custody of the two (2) legitimate children of the plaintiff and the
Trial Court may be set aside on the ground of fraud, accident, mistake or
defendant is hereby awarded to the plaintiff. 
excusable negligence. In addition, the petitioner must assert facts showing
The foregoing judgment is without prejudice to the application of the that he has a good, substantial and meritorious defense or cause of action.
other effects of annulment as provided for under Arts . 50 and 51 of the 11 If the petition is granted, the court shall proceed to hear and determine
Family Code of the Philippines. 6  the case as if a timely motion for new trial had been granted therein. 12 

Counsel for petitioner received a copy of this decision on August 24, 1990. In the case at bar, the decision annulling petitioner's marriage to private
No appeal was taken from the decision.  respondent had already become final and executory when petitioner failed
to appeal during the reglementary period. Petitioner however claims that
On September 24, 1990, private respondent filed a "Motion for the decision of the trial court was null and void for violation of his right to
Dissolution of Conjugal Partnership of Gains and Adjudication to Plaintiff due process. He contends he was denied due process when, after failing to
of the Conjugal Properties." 7 Petitioner opposed the motion on October appear on two scheduled hearings, the trial court deemed him to have
17, 1990. 8  waived his right to present evidence and rendered judgment on the basis
of the evidence for private respondent. Petitioner justifies his absence at
Also on the same day, October 17, 1990, petitioner, through new counsel, the hearings on the ground that he was then "confined for medical and/or
filed with the trial court a petition for relief from judgment of the June 29, rehabilitation reason." 13 In his affidavit of merit before the trial court, he
1990 decision.  attached a certification by Lt. Col. Plaridel F. Vidal, Director of the
Narcotics Command, Drug Rehabilitation Center which states that on
The trial court denied the petition on August 8, 1991. 9  March 27, 1990 petitioner was admitted for treatment of drug

72
dependency at the Drug Rehabilitation Center at Camp Bagong Diwa, 18 Indeed, relief will not be granted to a party who seeks avoidance from
Bicutan, Taguig, Metro Manila of the Philippine Constabulary-Integrated the effects of the judgment when the loss of the remedy at law was due to
National Police. 14 The records, however, show that the former counsel of his own negligence; otherwise the petition for relief can be used to revive
petitioner did not inform the trial court of this confinement. And when the the right to appeal which had been lost thru inexcusable negligence. 19 
court rendered its decision, the same counsel was out of the country for
which reason the decision became final and executory as no appeal was Petitioner also insists that he has a valid and meritorious defense. He cites
taken therefrom. 15  the Family Code which provides that in actions for annulment of marriage
or legal separation, the prosecuting officer should intervene for the state
The failure of petitioner's counsel to notify him on time of the adverse because the law "looks with disfavor upon the haphazard declaration of
judgment to enable him to appeal therefrom is negligence which is not annulment of marriages by default." He contends that when he failed to
excusable. Notice sent to counsel of record is binding upon the client and appear at the scheduled hearings, the trial court should have ordered the
the neglect or failure of counsel to inform him of an adverse judgment prosecuting officer to intervene for the state and inquire as to the reason
resulting in the loss of his right to appeal is not a ground for setting aside for his non-appearance. 20 
a judgment valid and regular on its face. 16 
Articles 48 and 60 of the Family Code read as follows: 
Similarly inexcusable was the failure of his former counsel to inform the
trial court of petitioner's confinement and medical treatment as the reason Art. 48. In all cases of annulment or declaration of absolute nullity of
for his non-appearance at the scheduled hearings. Petitioner has not given marriage, the Court shall order the prosecution attorney or fiscal assigned
to it to appear on behalf of the State to take steps to prevent collusion
any reason why his former counsel, intentionally or unintentionally, did
between the parties and to take care that evidence is not fabricated or
not inform the court of this fact. This led the trial court to order the case suppressed. 
deemed submitted for decision on the basis of the evidence presented by
the private respondent alone. To compound the negligence of petitioner's In the cases referred to in the preceding paragraph, no judgment shall be
counsel, the order of the trial court was never assailed via a motion for based upon a stipulation of facts or confession of judgment. 
reconsideration. 
Xxx xxx xxx 

Clearly, petitioner cannot now claim that he was deprived of due process. Art. 60. No decree of legal separation shall be based upon a stipulation of
He may have lost his right to present evidence but he was not denied his facts or a confession of judgment. 
day in court. As the record show, petitioner, through counsel, actively
participated in the proceedings below. He filed his answer to the petition, In any case, the Court shall order the prosecuting attorney or fiscal
assigned to it to take steps to prevent collusion between the parties and to
cross-examined private respondent's witnesses and even submitted his
take care that the evidence is not fabricated or suppressed. 21 
opposition to private respondent's motion for dissolution of the conjugal
partnership of gains. 17  A grant of annulment of marriage or legal separation by default is fraught
with the danger of collusion. 22 Hence, in all cases for annulment,
A petition for relief from judgment is an equitable remedy; it is allowed declaration of nullity of marriage and legal separation, the prosecuting
only in exception cases where there is no other available or adequate attorney or fiscal is ordered to appear on behalf of the state for the
remedy. When a party has another remedy available or adequate remedy. purpose of preventing any collusion between the parties and to take care
When a party has another remedy available to him, which may be either a that their evidence is not fabricated or suppressed. If the defendant spouse
motion for new trial or appeal from an adverse decision of the trial or fails to answer the complaint, the court cannot declare him or her in
appeal from an adverse decision of the trial court, and he was not default but instead, should order the prosecuting attorney to determine if
prevented by fraud, accident, mistake or excusable negligence from filing collusion exists between the parties. 23 The prosecuting attorney or fiscal
such motion or taking such appeal, he cannot avail himself of this petition. may oppose the application for legal separation or annulment through the
73
presentation of his own evidence, if in his opinion, the proof adduced is
dubious and fabricated. 24 Our Constitution is committed to the policy of Suffice it to state that the finding of the trial court as to the existence or
strengthening the family as a basic social institution. 25 Our family law is non-existence of petitioner's psychological incapacity at the time of the
based on the policy that marriage is not a mere contract, but a social marriage is final and binding on us. 26 Petitioner has not sufficiently
institution in which the state is vitally interested. The state can find no shown that the trial court's factual findings and evaluation of the
stronger anchor than on good, solid and happy families. The break up of testimonies of private respondent's witnesses vis-a-vis petitioner's defenses
families weakens our social and moral fabric and, hence, their are clearly and manifestly erroneous. 27 
preservation is not the concern alone of the family members. 
IN VIEW WHEREOF, the petition is denied and the decision dated July 29,
The facts in the case at bar do not call for the strict application of Articles 1994 of the Court of Appeals in CA-G.R. CV No. 37925 is affirmed. 
48 and 60 of the Family Code. For one, petitioner was not declared in
default by the trial court for failure to answer. Petitioner filed his answer
to the complaint and contested the cause of action alleged by private
respondent. He actively participated in the proceedings below by filing
several pleadings and cross-examining the witnesses of private
respondent. It is crystal clear that every stage of the litigation was
characterized by a no-holds barred contest and not by collusion. 

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. 

Petitioner also refutes the testimonies of private respondent's witnesses,

particularly Dr. Samuel Wiley and Ms. Adelita Prieto, as biased, incredible
and hearsay. Petitioner alleges that if he were able to present his evidence,
he could have testified that he was not psychologically incapacitated at
the time of the marriage as indicated by the fact that during their first ten
years, he and private respondent lived together with their children as one
normal and happy family, that he continued supporting his family even
after he left the conjugal dwelling and that his work as owner and
operator of a radio and television corporation places him in the public eye
and makes him a good subject for malicious gossip linking him with
various women. These facts, according to petitioner, should disprove the
ground for annulment of his marriage to petitioner. 

74
 ENRICO L. PACETE, CLARITA DE LA CONCEPCION, EMELDA C. PACETE, extension of "fifteen (15) days counted from the expiration of the 30-day
EVELINA C. PACETE and EDUARDO C. PACETE, petitioners, vs. HON. period previously sought" within which to file an answer. The following day,
GLICERIO V. CARRIAGA, JR. and CONCEPCION (CONCHITA) ALANIS or on 06 February 1980, the court denied this last motion on the ground that
PACETE, respondents. it was "filed after the original period given . . . as first extension had expired."
1
G.R. No. L-53880 | 1994-03-17
The plaintiff thereupon filed a motion to declare the defendants in default,
VITUG, J.: which the court forthwith granted. The plaintiff was then directed to present
her evidence. 2 The court received plaintiff's evidence during the hearings
The issue in this petition for certiorari is whether or not the Court of First held on 15, 20, 21 and 22 February 1980.
Instance (now Regional Trial Court) of Cotabato, Branch I, in Cotabato City,
gravely abused its discretion in denying petitioners' motion for extension of On 17 March 1980, the court 3 promulgated the herein questioned decision,
time to file their answer in Civil Case No. 2518, in declaring petitioners in disposing of the case, thus ----
default and in rendering its decision of 17 March 1980 which, among other
things, decreed the legal separation of petitioner Enrico L. Pacete and private "WHEREFORE, order is hereby issued ordering:
respondent Concepcion Alanis and held to be null and void ab initio the
marriage of Enrico L. Pacete to Clarita de la Concepcion. "1. The issuance of a Decree of Legal Separation of the marriage between, the
plaintiff, Concepcion (Conchita) Alanis Pacete and the herein defendants,
On 29 October 1979, Concepcion Alanis filed with the court below a Enrico L. Pacete, in accordance with the Philippine laws and with
complaint for the declaration of nullity of the marriage between her erstwhile consequences, as provided for by our laws;
husband Enrico L. Pacete and one Clarita de la Concepcion, as well as for
legal separation (between Alanis and Pacete), accounting and separation of "2. That the following properties are hereby declared as the conjugal
property. In her complaint, she averred that she was married to Pacete on 30 properties of the partnership of the plaintiff, Concepcion (Conchita) Alanis
April 1938 before the Justice of the Peace of Cotabato, Cotabato; that they Pacete and the defendant, Enrico L. Pacete, half and half, to wit:
had a child named Consuelo who was born on 11 March 1943; that Pacete
subsequently contracted (in 1948) a second marriage with Clarita de la "1. The parcel of land covered by TCT No. V-815 which is a parcel of land
Concepcion in Kidapawan, North Cotabato; that she learned of such marriage situated in the barrio of Langcong, Municipality of Matanog (previously of
only on 01 August 1979; that during her marriage to Pacete, the latter Parang), province of Maguindanao (previously of Cotabato province) with an
acquired vast property consisting of large tracts of land, fishponds and several area of 45,256 square meters registered in the name of Enrico Pacete,
motor vehicles; that he fraudulently placed the several pieces of property Filipino, of legal age, married to Conchita Alanis as shown in Exhibits 'B' and
either in his name and Clarita or in the names of his children with Clarita and 'B-1' for the plaintiff.
other "dummies;" that Pacete ignored overtures for an amicable settlement;
and that reconciliation between her and Pacete was impossible since he "2. A parcel of land covered by Transfer Certificate of Title No. T-20442, with
evidently preferred to continue living with Clarita. an area of 538 square meters and covered by Tax Declaration No. 2650 (74)
in the name of Enrico Pacete, situated in the Poblacion of Kidapawan, North
The defendants were each served with summons on 15 November 1979. They Cotabato, together with all its improvements, which parcel of land, as shown
filed a motion for an extension of twenty (20) days from 30 November 1979 by Exhibits 'K-1' was acquired by way of absolute deed of sale executed by
within which to file an answer. The court granted the motion. On 18 Amrosio Mondog on January 14, 1965.
December 1979, appearing through a new counsel, the defendants filed a
second motion for an extension of another thirty (30) days from 20 December "3. A parcel of land covered by Transfer Certificate of Title No. T-20424 and
1979. On 07 January 1980, the lower court granted the motion but only for covered by Tax Declaration No. 803 (74), with an area of 5.1670 hectares,
twenty (20) days to be counted from 20 December 1979 or until 09 January more or less, as shown by Exhibit 'R', the same was registered in the name of
1980. The Order of the court was mailed to defendants' counsel on 11 Enrico Pacete and the same was acquired by Enrico Pacete last February 17,
January 1980. Likely still unaware of the court order, the defendants, on 05 1967 from Ambag Ampoy, as shown by Exhibit 'R-1', situated at Musan,
February 1980, again filed another motion (dated 18 January 1980) for an Kidapawan, North Cotabato.
75
 "3. Ordering the Cancellation of Original Certificate of Title No. P-34243
"4. A parcel of land situated at Lanao, Kidapawan, North Cotabato, with an covering Lot No. 1066, issued in the name of Evelina Pacete, situated at Kiab,
area of 5.0567 hectares, covered by Tax Declaration No. 4332 (74), as shown Matalam, North Cotabato, and ordering the registration of the same in the
by Exhibit 'S', and registered in the name of Enrico Pacete. joint name of Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete as
their conjugal property, with address on the part of Concepcion (Conchita)
"5. A parcel of land covered by Transfer Certificate of Title No. T-9750, Alanis Pacete at Parang, Maguindanao and on the part of Enrico L. Pacete at
situated at Lika, Mlanng, North Cotabato, with an area of 4.9841 hectares and Kidapawan, North Cotabato.
the same is covered by Tax Declaration No. 803 (74) and registered in the
name of Enrico Pacete and which land was acquired by Enrico Pacete from "4. Ordering likewise the cancellation of Original Certificate of Title No.
Salvador Pacete on September 24, 1962, as shown by Exhibit 'Q-1'. V-20101, covering Lot No. 77, in the name of Eduardo C. Pacete, situated at
New Lawaan, Mlang, North Cotabato, and the issuance of a new Transfer
"6. A parcel of land covered by Transfer Certificate of Title No. T-9944, with Certificate of Title in the joint name of (half and half) Concepcion (Conchita)
an area of 9.9566 and also covered by Tax Declaration No. 8608 (74) and Alanis Pacete and Enrico L. Pacete.
registered in the name of the defendant Enrico L. Pacete which Enrico L.
Pacete acquired from Sancho Balingcos last October 22, 1962, as shown by "5. Ordering likewise the cancellation of Original Certificate of Title No.
Exhibit 'L-1' and which parcel of land is situated at (Kialab), Kiab, Matalam, P-29890, covering Lot 1068, situated at Kiab, Matalam, North Cotabato, with
North Cotabato. an area of 12.1031 hectares, in the name of Emelda C. Pacete and the
issuance of a new Transfer Certificate of Title in the joint name (half and half)
"7. A parcel of land covered by Transfer Certificate of Title No. T-9227, of Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete; and declaring
situated at Kiab, Matalam, North Cotabato, with an area of 12.04339 that the fishpond situated at Barrio Tumanan, Bislig, Surigao Del Sur, with an
hectares, more or less, and also covered by Tax Declaration No. 8607 (74) area of 48 hectares and covered by Fishpond Lease Agreement of Emelda C.
both in the name of the defendant Enrico L. Pacete which he acquired last Pacete, dated July 29, 1977 be cancelled and in lieu thereof, the joint name of
October 15, 1962 from Minda Bernardino, as shown by Exhibit 'M-1'. Concepcion (Conchita) Alanis Pacete and her husband, Enrico L. Pacete, be
registered as their joint property, including the 50 hectares fishpond situated
"8. A parcel of land covered by Transfer Certificate of Title No. T-9228, in the same place, Barrio Timanan, Bislig, Surigao del Sur.
situated at Kiab, Matalam, North Cotabato, with an area of 10.8908 hectares,
registered in the name of Enrico Pacete and also covered by Tax Declaration "6. Ordering the following motor vehicles to be the joint properties of the
No. 5781(74) in the name of Enrico Pacete and which parcel of land he conjugal partnership of Concepcion (Conchita) Alanis Pacete and Enrico L.
acquired last September 25, 1962 from Conchita dela Torre, as shown by Pacete, viz:
Exhibit 'P-1'.
"a. Motor vehicle with Plate No. T-RG-783; Make, Dodge; Motor No.
"9. A parcel of land covered by Transfer Certificate of Title No. T-10301, T137-20561; Chassis No. 83920393, and Type, Mcarrier;
situated at Linao, Matalam, North Cotabato, with an area of 7.2547 hectares,
registered in the name of Enrico Pacete and also covered by Tax Declaration "b. Motor vehicle with Plate No. T-RG-784; Make, Dodge; Motor No.
No. 8716(74) also in the name of Enrico Pacete which Enrico Pacete acquired T214-229547; Chassis No. 10D-1302-C; and Type, Mcarrier;
from Agustin Bijo last July 16, 1963, as shown by Exhibit 'N-1'.
"c. Motor vehicle with Plate No. J-PR-818; Make, Ford; Motor No.
"10. A parcel of land covered by Transfer Certificate of Title No. 12728 in the GPW-116188; Chassis No. HOCC-GPW-1161-88-C; Type, Jeep;
name of the defendant, Enrico L. Pacete, with an area of 10.9006 hectares,
situated at Linao, Matalam, North Cotabato and is also covered by Tax "d. Motor vehicle with Plate No. TH-5J-583; Make, Ford: Motor No.
Declaration No. 5745(74) in the name of Enrico Pacete, as shown on Exhibit F70MU5-11111; Chassis No. HOCC-GPW-1161188-G; Type, Stake;
'O' and which Enrico Pacete acquired last December 31, 1963 from Eliseo
Pugni, as shown on Exhibit '0-1'. "e. Motor vehicle with Plate No. TH-5J-584; Make, Hino; Motor No.
ED300-45758; Chassis No. KB222-22044; Type, Stake; and

76
"f. Motor vehicle with Plate No. TH-5J-585; Make, Ford: Motor No. LTC-780- "The policy of Article 101 of the new Civil Code, calling for the
Dv; Chassis No. 10F-13582-K; Type, Stake. intervention of the state attorneys in case of uncontested proceedings for
legal separation (and of annulment of marriages, under Article 88), is to
"7. Ordering the defendant Enrico L. Pacete to pay the plaintiff the sum of emphasize that marriage is more than a mere contract; that it is a social
institution in which the state is vitally interested, so that its continuation
P46,950.00 which is the share of the plaintiff in the unaccounted income of
or interruption can not be made to depend upon the parties themselves
the ricemill and corn sheller for three years from 1971 to 1973. (Civil Code, Article 52; Adong vs. Cheong Gee, 43 Phil. 43; Ramirez v.
Gmur, 42 Phil. 855; Goitia v. Campos, 35 Phil. 252). It is consonant with
"8. Ordering the defendant, Enrico L. Pacete, to reimburse the plaintiff the this policy that the inquiry by the Fiscal should be allowed to focus upon
monetary equipment of 30% of whatever the plaintiff has recovered as any relevant matter that may indicate whether the proceedings for
attorney's fees; separation or annulment are fully justified or not."

"9. Declaring the subsequent marriage between defendant Enrico L. Pacete Article 103 of the Civil Code, now Article 58 of the Family Code, further
and Clarita de la Concepcion to be void ab initio; and mandates that an action for legal separation must "in no case be tried before
six months shall have elapsed since the filing of the petition," obviously in
"10. Ordering the defendants to pay the costs of this suit." 4 order to provide the parties a "cooling-off" period. In this interim, the court
should take steps toward getting the parties to reconcile.
Hence, the instant special civil action of certiorari.
The significance of the above substantive provisions of the law is further
Under ordinary circumstances, the petition would have outrightly been underscored by the inclusion of the following provision in Rule 18 of the
dismissed, for, as also pointed out by private respondents, the proper remedy Rules of Court:
of petitioners should have instead been either to appeal from the judgment by
default or to file a petition for relief from judgment. 5 This rule, however, is "Sec. 6. No defaults in actions for annulments of marriage or for legal
not inflexible; a petition for certiorari is allowed when the default order is separation. ---- If the defendant in an action for annulment of marriage or
improperly declared, or even when it is properly declared, where grave abuse for legal separation fails to answer, the court shall order the prosecuting
of discretion attended such declaration. 6 In these exceptional instances, the attorney to investigate whether or not a collusion between the parties
special civil action of certiorari to declare the nullity of a judgment by default exists, and if there is no collusion, to intervene for the State in order to
is available. 7 In the case at bench, the default order unquestionably is not see to it that the evidence submitted is not fabricated."
legally sanctioned. The Civil Code provides:
The special prescriptions on actions that can put the integrity of marriage to
"Art. 101. No decree of legal separation shall be promulgated upon a possible jeopardy are impelled by no less than the State's interest in the
stipulation of facts or by confession of judgment. marriage relation and its avowed intention not to leave the matter within the
exclusive domain and the vagaries of the parties to alone dictate.
"In case of non-appearance of the defendant, the court shall order the
prosecuting attorney to inquire whether or not a collusion between the It is clear that the petitioner did, in fact, specifically pray for legal separation.
parties exists. If there is no collusion, the prosecuting attorney shall 11 That other remedies, whether principal or incidental, have likewise been
intervene for the State in order to take care that the evidence for the sought in the same action cannot dispense, nor excuse compliance, with any
plaintiff is not fabricated."
of the statutory requirements aforequoted.

The provision has been taken from Article 30 of the California Civil Code, 8 WHEREFORE, the petition for certiorari is hereby  GRANTED  and the
and it is, in substance, reproduced in Article 60 of the Family Code. 9 proceedings below, including the Decision of 17 March 1980 appealed from,
are NULLIFIED and SET ASIDE. No costs.
Article 101 reflects the public policy on marriages, and it should easily explain
the mandatory tenor of the law. In Brown v. Yambao, 10 the Court has SO ORDERED.
observed:

77
 ELISEA LAPERAL, petitioner, vs. REPUBLIC OF THE PHILIPPINES, The petition was opposed by the City Attorney of Baguio on the
oppositor. ground that the same violates the provisions of Article 370 (should be
372) of the Civil Code, and that it is not sanctioned by the Rules of
G.R. No. L-18008 | 1962-10-30 Court.
 
BARRERA, J.:
In its decision of October 31, 1960, the court denied the petition for
 
the reason that Article 372 of the Civil Code requires the wife, even
On May 10, 1960, Elisea Laperal filed in the Court of First Instance of
after she is decreed legally separated from her husband, to continue
Baguio (Sp Proc. No. 433) a petition which reads:
using the name and surname she employed before the legal
 
separation.
1. That petitioner has been a bona fide resident of the City of
Baguio for the last three years prior to the date of the filing of
Upon petitioner's motion, however, the court, treating the petition as
this petition;
one for change of name, reconsidered its decision and granted the
 
petition on the ground that to allow petitioner, who is a
2. That petitioner's maiden name is ELISEA LAPERAL; that on
businesswoman decreed legally separated from her husband, to
March 24, 1939, she married Mr. Enrique R. Santamaria; that
continue using her married name would give rise to confusion in her
in a partial decision entered on this Honorable Court on
finances and the eventual liquidation of the conjugal assets. Hence,
January 18, 1958, in Civil Case No. 356 of this Court, entitled
this appeal by the State.
'Enrique R. Santamaria vs. Elisea L. Santamaria' Mr. Enrique
 
Santamaria was given a decree of legal separation from her;
The contention of the Republic finds support in the provisions of
that the said partial decision is now final;
Article 372 of the New Civil Code which reads:
 
 
3. That during her marriage to Enrique R. Santamaria, she
ART. 372.  When legal separation has been granted, the wife
naturally used, instead of her maiden name, that of Elisea L.
shall continue using her name and surname employed before
Santamaria; that aside from her legal separation from Enrique
the legal separation. (Emphasis supplied)
R. Santamaria, she has also ceased to live with him for many
 
years now.
Note that the language of the statute is mandatory that the wife, even
after the legal separation has been decreed, shall continue using her
4. That in view of the fact that she has been legally separated
name and surname employed before the legal separation. This is so
from Mr. Enrique R. Santamaria and has likewise ceased to live
because her married status is unaffected by the separation, there being
with him for many years, it is desirable that she be allowed to
no severance of the vinculum.
change her name and/or be permitted to resume using her
maiden name, to wit: ELISEA LAPERAL.
It seems to be the policy of the law that the wife should continue to
 
use the name indicative of her unchanged status for the benefit of all
WHEREFORE, petitioner respectfully prayed that after the
concerned.
necessary proceedings are had, she be allowed to resume using
 
her maiden name of Elisea Laperal.
The appellee contends, however, that the petition is substantially for
 
change of her name from Elisea L. Santamaria, the one she has been

78
using, since her marriage, to Elisea Laperal, her maiden name, giving Consequently, there could be no more occasion for an eventual
as reason or cause therefor her being legally separated from the liquidation of the conjugal assets.
husband Enrique R. Santamaria, and the fact that they have ceased to  
live together for many years. WHEREFORE, the order of the lower court of December 1, 1960,
  granting the petition, is hereby set aside and the petition dismissed.
There seems to be no dispute that in the institution of these Without costs. So ordered.
proceedings, the procedure prescribed in Rule 103 of the Rules of
Court for change of name has been observed.

But from the petition quoted in full at the beginning of these opinion,
the only reason relied upon for the change of name is the fact that
petitioner is legally separated from her husband and has, in fact,
ceased to live with him for many years.

It is doubtful, to say the least, whether Rule 103 which refers to

change of name in general, may prevail over the specific provisions of
Article 372 of the New Civil Code with regards to married women
legally separated from their husbands.

Even, however, applying Rule 103 to this case, the fact of legal
separation alone — which is the only basis for the petition at bar — is,
in our opinion, not a sufficient ground to justify a change of the name
of herein petitioner, for to hold otherwise would be to provide an easy
circumvention of the mandatory provisions of Article 372.
 
It is true that in the second decision which reconsidered the first it is
stated that as the petitioner owns extensive business interests, the
continued used of her husband surname may cause undue confusion in
her finances and the eventual liquidation of the conjugal assets.

This finding is however without basis. In the first place, these were not
the causes upon which the petition was based; hence, obviously no
evidence to this effect had been adduced.

Secondly, with the issuance of the decree of legal separation in 1958,

the conjugal partnership between petitioner and her husband had
automatically been dissolved and liquidated. (Art. 106[2], Civil Cod).

79
 ERLINDA K. ILUSORIO, petitioner, vs. ERLINDA I. BILDNER and Potenciano Ilusorio is about 86 years of age possessed of extensive property
SYLVIA K. ILUSORIO, JOHN DOE and JANE DOE, respondents.
 valued at millions of pesos. For many years, lawyer Potenciano Ilusorio was

 Chairman of the Board and President of Baguio Country Club.
POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER, and SYLVIA
ILUSORIO, petitioners, vs. COURT OF APPEALS and ERLINDA K. On July 11, 1942, Erlinda Kalaw and Potenciano Ilusorio contracted
matrimony and lived together for a period of thirty (30) years. In 1972, they
ILUSORIO, respondents.
separated from bed and board for undisclosed reasons. Potenciano lived at
G.R. No. 139789 and G.R. No. 139808 | 2000-05-12 Urdaneta Condominium, Ayala Ave., Makati City when he was in Manila and
at Ilusorio Penthouse, Baguio Country Club when he was in Baguio City. On
PARDO, J.: the other hand, Erlinda lived in Antipolo City.

May a wife secure a writ of habeas corpus to compel her husband to live with Out of their marriage, the spouses had six (6) children, namely: Ramon
her in conjugal bliss? The answer is no. Marital rights including coverture and Ilusorio (age 55); Erlinda Ilusorio Bildner (age 52); Maximo (age 50); Sylvia
living in conjugal dwelling may not be enforced by the extra-ordinary writ of (age 49); Marietta (age 48); and Shereen (age 39).
habeas corpus.
On December 30, 1997, upon Potenciano's arrival from the United States, he
A writ of habeas corpus extends to all cases of illegal confinement or stayed with Erlinda for about five (5) months in Antipolo City. The children,
detention,1 or by which the rightful custody of a person is withheld from the Sylvia and Erlinda (Lin), alleged that during this time, their mother gave
one entitled thereto.2 Potenciano an overdose of 200 mg instead of 100 mg Zoloft, an
antidepressant drug prescribed by his doctor in New York, U.S.A. As a
"Habeas corpus is a writ directed to the person detaining another, consequence, Potenciano's health deteriorated.
commanding him to produce the body of the prisoner at a designated time
and place, with the day and cause of his capture and detention, to do, submit On February 25, 1998, Erlinda filed with the Regional Trial Court, Antipolo
to, and receive whatsoever the court or judge awarding the writ shall consider City a petition10  for guardianship over the person and property of
in that behalf."3  Potenciano Ilusorio due to the latter's advanced age, frail health, poor
eyesight and impaired judgment.
It is a high prerogative, common-law writ, of ancient origin, the great object
of which is the liberation of those who may be imprisoned without sufficient On May 31, 1998, after attending a corporate meeting in Baguio City,
cause.4    It is issued when one is deprived of liberty or is wrongfully Potenciano Ilusorio did not return to Antipolo City and instead lived at
prevented from exercising legal custody over another person.5 Cleveland Condominium, Makati.

The petition of Erlinda K. Ilusorio6 is to reverse the decision7 of the Court of On March 11, 1999, Erlinda filed with the Court of Appeals a petition for
Appeals and its resolution8   dismissing the application for habeas corpus to habeas corpus to have the custody of lawyer Potenciano Ilusorio. She alleged
have the custody of her husband, lawyer Potenciano Ilusorio and enforce that respondents11 refused petitioner's demands to see and visit her husband
consortium as the wife. and prohibited Potenciano from returning to Antipolo City.

On the other hand, the petition of Potenciano Ilusorio9  is to annul that After due hearing, on April 5, 1999, the Court of Appeals rendered decision
portion of the decision of the Court of Appeals giving Erlinda K. Ilusorio the dispositive portion of which reads:
visitation rights to her husband and to enjoin Erlinda and the Court of
Appeals from enforcing the visitation rights. "WHEREFORE, in the light of the foregoing disquisitions, judgment is
hereby rendered:
The undisputed facts are as follows:
"(1) Ordering, for humanitarian consideration and upon petitioner's
manifestation, respondents Erlinda K. Ilusorio Bildner and Sylvia Ilusorio-
Erlinda Kalaw Ilusorio is the wife of lawyer Potenciano Ilusorio. Yap, the administrator of Cleveland Condominium or anywhere in its

80
 place, his guards and Potenciano Ilusorio's staff especially Ms. Aurora and other children from seeing or visiting him. He made it clear that he did
Montemayor to allow visitation rights to Potenciano Ilusorio's wife, not object to seeing them.
Erlinda Ilusorio and all her children, notwithstanding any list limiting
visitors thereof, under penalty of contempt in case of violation of refusal As to lawyer Potenciano Ilusorio's mental state, the Court of Appeals observed
thereof;
that he was of sound and alert mind, having answered all the relevant
questions to the satisfaction of the court.
"(2) ORDERING that the writ of habeas corpus previously issued be
recalled and the herein petition for habeas corpus be DENIED DUE
COURSE, as it is hereby DISMISSED for lack of unlawful restraint or Being of sound mind, he is thus possessed with the capacity to make choices.
detention of the subject of the petition. In this case, the crucial choices revolve on his residence and the people he
opts to see or live with. The choices he made may not appeal to some of his
"SO ORDERED."12  family members but these are choices which exclusively belong to Potenciano.
He made it clear before the Court of Appeals that he was not prevented from
Hence, the two petitions, which were consolidated and are herein jointly leaving his house or seeing people. With that declaration, and absent any true
decided. restraint on his liberty, we have no reason to reverse the findings of the Court
of Appeals.
As heretofore stated, a writ of habeas corpus extends to all cases of illegal
confinement or detention,13  or by which the rightful custody of a person is With his full mental capacity coupled with the right of choice, Potenciano
withheld from the one entitled thereto. It is available where a person Ilusorio may not be the subject of visitation rights against his free choice.
continues to be unlawfully denied of one or more of his constitutional Otherwise, we will deprive him of his right to privacy. Needless to say, this
freedoms, where there is denial of due process, where the restraints are not will run against his fundamental constitutional right.
merely involuntary but are unnecessary, and where a deprivation of freedom
originally valid has later become arbitrary.14   It is devised as a speedy and The Court of Appeals exceeded its authority when it awarded visitation rights
effectual remedy to relieve persons from unlawful restraint, as the best and in a petition for habeas corpus where Erlinda never even prayed for such
only sufficient defense of personal freedom.15 right. The ruling is not consistent with the finding of subject's sanity.

The essential object and purpose of the writ of habeas corpus is to inquire into When the court ordered the grant of visitation rights, it also emphasized that
all manner of involuntary restraint, and to relieve a person therefrom if such the same shall be enforced under penalty of contempt in case of violation or
restraint is illegal.16  refusal to comply. Such assertion of raw, naked power is unnecessary.

To justify the grant of the petition, the restraint of liberty must be an illegal The Court of Appeals missed the fact that the case did not involve the right of
and involuntary deprivation of freedom of action.17 [The illegal restraint of a parent to visit a minor child but the right of a wife to visit a husband. In
liberty must be actual and effective, not merely nominal or moral.18 case the husband refuses to see his wife for private reasons, he is at liberty to
do so without threat of any penalty attached to the exercise of his right.
The evidence shows that there was no actual and effective detention or
deprivation of lawyer Potenciano Ilusorio's liberty that would justify the No court is empowered as a judicial authority to compel a husband to live
issuance of the writ. The fact that lawyer Potenciano Ilusorio is about 86 years with his wife. Coverture cannot be enforced by compulsion of a writ of habeas
of age, or under medication does not necessarily render him mentally corpus carried out by sheriffs or by any other mesne process. That is a matter
incapacitated. Soundness of mind does not hinge on age or medical condition beyond judicial authority and is best left to the man and woman's free choice.
but on the capacity of the individual to discern his actions.
WHEREFORE, in G. R. No. 139789, the Court DISMISSES the petition for lack
After due hearing, the Court of Appeals concluded that there was no unlawful of merit. No costs.
restraint on his liberty.
In G. R. No. 139808, the Court GRANTS the petition and nullifies the decision
The Court of Appeals also observed that lawyer Potenciano Ilusorio did not of the Court of Appeals insofar as it gives visitation rights to respondent
request the administrator of the Cleveland Condominium not to allow his wife Erlinda K. Ilusorio. No costs. SO ORDERED.
81
ARTURO PELAYO, plaintiff-appellant, vs. MARCELO LAURON, ET AL., As a result of the evidence adduced by both parties, judgment was entered
defendants-appellees. by the court below on the 5th of April, 1907, whereby the defendants
were absolved from the former complaint, on account of the lack of
G.R. No. L-4089 | 1909-01-12 sufficient evidence to establish a right of action against the defendants,
with costs against the plaintiff, who excepted to the said judgment and in
TORRES, J.:
addition moved for a new trial on the ground that the judgment was
contrary to law; the motion was overruled and the plaintiff excepted and
On the 23d of November, 1906, Arturo Pelayo, a physician-residing in
in due course presented the corresponding bill of exceptions. The motion
Cebu, filed a complaint against Marcelo Lauron and Juana Abella setting
of the defendants requesting that the declaration contained in the
forth that on or about the 13th of October of said year, at night, the
judgment that the defendants had demanded he professional services of
plaintiff was called to the house of the defendants, situated in San
the plaintiff he eliminated therefrom, for the reason that, according to the
Nicolas, and that upon arrival he was requested by them to render
evidence, no such request had been made, was also denied, and to the
medical assistance to their daughter-in-law who was about to give birth to
decision the defendants excepted.
a child; that therefore, and after consultation with the attending
physician, Dr. Escano, it was found necessary, on account of the difficult
Assuming that it is a real fact acknowledged by the defendants, that the
birth, to remove the fetus by means of forceps which operation was
plaintiff, by virtue of having been sent for by the former, attended as
performed by the plaintiff, who also had to remove the after birth, in
physician and rendered professional services to a daughter-in-law of the
which service he was occupied until the following morning, and that
said defendants during a difficult and laborious childbirth, in order to
afterwards, on the same day, he visited the patient several times; that the
decide the claim of the said physician regarding the recovery of his fees, it
just and equitable value of the services rendered by him was P500, which
becomes necessary to decide who is bound to pay the bill, whether the
the defendants refuse to pay without alleging any good reason there for;
father and mother-in-law of the patient, or the husband of the latter.
that for said reason he prayed that judgment be entered in his favor as
against the defendants, or any of them, for the sum of P500 and costs,
According to article 1089 of the Civil Code, obligations are created by law,
together with any other relief that might be deemed proper.
by contracts, by quasi-contracts, and by illicit acts and omissions or by
those in which any kind of fault or negligence occurs.
In answer to the complaint counsel for the defendants denied all of the
allegations therein contained and alleged as a special defense, that their
Obligations arising from law are not presumed. Those expressly
daughter-in-law had died in consequence of the said childbirth, and that
determined in the code or in special laws, etc., are the only demandable
when she was alive she lived with her husband independently and in a
ones. Obligations arising from contracts have legal force between the
separate house without any relation whatever with them, and that, if on
contracting parties and must be fulfilled in accordance with their
the day when she gave birth she was in the house of the defendants, her
stipulations. (Arts. 1090 and 1091.)
stay there was accidental and due to fortuitous circumstances; therefore,
he prayed that the defendants be absolved of the complaint with costs
The rendering of medical assistance in case of illness is comprised among
against the plaintiff.
the mutual obligations to which spouses are bound by way of mutual
support. (Arts. 142 and 143.).
The plaintiff demurred to the above answer, and the court below
sustained the demurrer, directing the defendants, on the 23d of January,
If every obligation consists in giving, doing, or not doing something (art.
1907, to amend their answer. In compliance with this order the
1088), and spouses are mutually bound to support each other, there can
defendants presented, on the same date, their amended answer, denying
be no question but that, when either of them by reason of illness should
each and every one of the allegations contained in the complaint, and
be in need of medical assistance, the other is under the unavoidable
requesting that the same be dismissed with costs.
obligation to furnish the necessary services of a physician in order that

82
health may be restored, and he or she may be freed from the sickness by Within the meaning of the law, the father and mother law are strangers
which life is jeopardized; the party bound to furnish such support is with respect to the obligation that devolves upon the husband to provide
therefore liable for all expenses, including the fees of the medical expert support, among which is the furnishing of medical assistance to his wife at
for his professional services. This liability originates from the above-cited the time of her confinement; and, on the other hand, it does not appear
mutual obligation which the law has expressly established between the that a contract existed between the defendants and the plaintiff physician,
married couple. for which reason it is obvious that the former can not be compelled to pay
fees which they are under no liability to pay because it does not appear
In the face of the above legal precepts it is unquestionable that the person that they consented to bind themselves.
bound to pay the fees due to the plaintiff for the professional services that
he rendered to the daughter-in-law of the defendants during her The foregoing suffices to demonstrate that the first and second errors
childbirth is the husband of the patient and not her father and mother- in- assigned to the judgment below are unfounded, because, if the plaintiff
law, the defendants herein. The fact that it w as not the husband who has no right of action against the defendants, it is needless to declare
called the plaintiff and requested his assistance for his wife is no bar to whether or not the use of forceps is a surgical operation.
the fulfillment of the said obligation, as the defendants, in view of the
imminent danger to which the life of the patient was at that moment Therefore, in view of the considerations hereinbefore set forth, it is our
exposed, considered that medical assistance was urgently needed, and the opinion that the judgment appealed from should be affirmed with the
obligation of the husband to furnish his wife with the indispensable costs against the appellant. So ordered.
services of a physician at such critical moments is specially established by
the law, as has been seen, and compliance therewith is unavoidable;
therefore, the plaintiff, who believes that he is entitled to recover his fees,
must direct his action against the husband who is under obligation to
furnish medical assistance to his lawful wife in such an emergency.

From the foregoing it, may readily be understood that it was improper to
have brought an action against the defendants simply because they were
the parties who called the plaintiff and requested him to assist the patient
during her difficult confinement, and also, possibly, because they were her
father and mother-in-law and the sickness occurred in their house. The
defendants were not, nor are they now, under any obligation by virtue of
any legal provision, to pay the fees claimed, nor in consequence of any
contract entered into between them and the plaintiff from which such
obligation might have arisen.

In applying the provisions of the Civil Code in an action for support, the
supreme court of Spain, while recognizing the validity and efficiency of a
contract to furnish support wherein a person bound himself to support
another who was not his relative, established the rule that the law does
impose the obligation to pay for the support of a stranger, but as the
liability arose out of a contract, the stipulations of the agreement must be
upheld. (Decision of May 11 1897.)

83
 CORNELIA MATABUENA, plaintiff-appellant, vs. PETRONILA (2) That said Felix Matabuena executed a Deed of Donation inter vivos in
CERVANTES, defendant-appellee. favor of Defendant, Petronila Cervantes over the parcel of land in
question on February 20, 1956, which same donation was accepted by
G.R. No. L-28771 | 1971-03-31  defendant;
FERNANDO, J: 
(3) That the donation of the land to the defendant which took effect
 
immediately was made during the common law relationship as
A question of first impression is before this Court in this litigation. We are
husband and wife between the defendant-done and the now deceased
called upon to decide whether the ban on a donation between the spouses
donor and later said donor and done were married on March 28,
during a marriage applies to a common-law relationship. The plaintiff,
1962;
now appellant Cornelia Matabuena, a sister to the deceased Felix
Matabuena, maintains that a donation made while he was living maritally
(4) That the deceased Felix Matabuena died intestate on September 13,
without benefit of marriage to defendant, now appellee Petronila
1962;
Cervantes, was void. Defendant would uphold its validity. The lower
court, after noting that it was made at a time before defendant was
(5) That the plaintiff claims the property by reason of being the only sister
married to the donor, sustained the latter's stand.
and nearest collateral relative of the deceased by virtue of an affidavit
of self-adjudication executed by her in 1962 and had the land declared
Hence this appeal. The question, as noted, is novel in character, this
in her name and paid the estate and inheritance taxes thereon'" 5 
Court not having had as yet the opportunity of ruling on it.
 
The judgment of the lower court on the above facts was adverse to
A 1954 decision of the Court of Appeals, Buenaventura v. Bautista, by the
plaintiff. It reasoned out thus:
then Justice J. B. L. Reyes, who was appointed to this Court later that
year, is indicative of the appropriate response that should be given. The
"A donation under the terms of Article 133 of the Civil Code is void
conclusion reached therein is that a donation between common-law
if made between the spouses during the marriage. When the
spouses falls within the prohibition and is "null and void as contrary to
donation was made by Felix Matabuena in favor of the defendant
public policy." Such a view merits fully the acceptance of this Court. The
on February 20, 1956, Petronila Cervantes and Felix Matabuena
decision must be reversed. 
were not yet married. At that time they were not spouses. They
 
became spouses only when they married on March 28, 1962, six
In the decision of November 23, 1965, the lower court, after stating that
years after the deed of donation had been executed."
in plaintiff's complaint alleging absolute ownership of the parcel of land in
 
question, she specifically raised the question that the donation made by
We reach a different conclusion. While Art. 133 of the Civil Code
Felix Matabuena to defendant Petronila Cervantes was null and void
considers as void a "donation between the spouses during the marriage,"
under the aforesaid article of the Civil Code and that defendant on the
policy considerations of the most exigent character as well as the dictates
other hand did assert ownership precisely because such a donation was
of morality require that the same prohibition should apply to a common-
made in 1956 and her marriage to the deceased did not take place until
law relationship. We reverse. 
1962, noted that when the case was called for trial on November 19,
 
1965, there was stipulation of facts which it quoted.
1. As announced at the outset of this opinion, a 1954 Court of Appeals
decision, Buenaventura v. Bautista, 7 interpreting a similar provision of
Thus: "The plaintiff and the defendant assisted by their respective
the old Civil Code 8 speaks unequivocally. If the policy of the law is, in the
counsels, jointly agree and stipulate:
language of the opinion of the then Justice J.B.L. Reyes of that Court, "to
prohibit donations in favor of the other consort and his descendants
(1) That the deceased Felix Matabuena owned the property in question;
84
because of fear of undue and improper pressure and influence upon the in the Civil Code, she is entitled to one-half of the inheritance and the
donor, a prejudice deeply rooted in our ancient law; 'porque no se plaintiff, as the surviving sister, to the other half. 11 
engañen despojandose el uno al otro por amor que han de consuno  
[according to] the Partidas (Part IV, Tit. XI, LAW IV), reiterating the WHEREFORE, the lower court decision of November 23, 1965 dismissing
rationale 'Ne mutuato amore invicem spoliarentur' of the Pandects (Bk. the complaint with costs is reversed. The questioned donation is declared
24, Tit. 1, De donat, inter virum et uxorem); then there is every reason to void, with the rights of plaintiff and defendant as pro indiviso heirs to the
apply the same prohibitive policy to persons living together as husband property in question recognized. The case is remanded to the lower court
and wife without the benefit of nuptials. For it is not to be doubted that for its appropriate disposition in accordance with the above opinion.
assent to such irregular connection for thirty years bespeaks greater Without pronouncement as to costs. 
influence of one party over the other, so that the danger that the law seeks
to avoid is correspondingly increased. Moreover, as already pointed out by
Ulpian (in his lib. 32 ad Sabinum, fr. 1), 'it would not be just that such
donations should subsist, lest the condition of those who incurred guilt
should turn out to be better.' So long as marriage remains the cornerstone
of our family law, reason and morality alike demand that the disabilities
attached to marriage should likewise attach to concubinage." 9 
 
2. It is hardly necessary to add that even in the absence of the above
pronouncement, any other conclusion cannot stand the test of scrutiny. It
would be to indict the framers of the Civil Code for a failure to apply a
laudable rule to a situation which in its essentials cannot be distinguished.
Moreover, if it is at all to be differentiated, the policy of the law which
embodies a deeply-rooted notion of what is just and what is right would
be nullified if such irregular relationship instead of being visited with
disabilities would be attended with benefits. Certainly a legal norm should
not be susceptible to such a reproach. If there is ever any occasion where
the principle of statutory construction that what is within the spirit of the
law is as much a part of it as what is written, this is it. Otherwise the basic
purpose discernible in such codal provision would not be attained.
Whatever omission may be apparent in an interpretation purely literal of
the language used must be remedied by an adherence to its avowed
objective. In the language of Justice Pablo: "El espiritu que informa la ley
debe ser la luz que ha de guiar a los tribunales en la aplicacion de sus
disposiciones.'' 10 
 
3. The lack of validity of the donation made by the deceased to defendant
Petronila Cervantes does not necessarily result in plaintiff having exclusive
right to the disputed property. Prior to the death of Felix Matabuena, the
relationship between him and the defendant was legitimated by their
marriage on March 28, 1962. She is therefore his widow. As provided for

85
 AYALA INVESTMENT & DEVELOPMENT CORP. and ABELARDO After trial, the court rendered judgment ordering PBM and respondent-
MAGSAJO, petitioners, vs. COURT OF APPEALS and SPOUSES husband Alfredo Ching to jointly and severally pay AIDC the principal
ALFREDO & ENCARNACION CHING, respondents. amount of P50,300,000.00 with interests. 
 
G.R. No. 118305 | 1998-02-12 Pending appeal of the judgment in Civil Case No. 42228, upon motion of
AIDC, the lower court issued a writ of execution pending appeal. Upon
MARTINEZ, J: 
AIDC's putting up of an P8,000,000.00 bond, a writ of execution dated
 
May 12, 1982 was issued. Thereafter, petitioner Abelardo Magsajo, Sr.,
Under Article 161 of the Civil Code, what debts and obligations contracted
Deputy Sheriff of Rizal and appointed sheriff in Civil Case No. 42228,
by the husband alone are considered "for the benefit of the conjugal
caused the issuance and service upon respondents-spouses of a notice of
partnership" which are chargeable against the conjugal partnership? Is a
sheriff sale dated May 20, 1982 on three (3) of their conjugal properties.
surety agreement or an accommodation contract entered into by the
Petitioner Magsajo then scheduled the auction sale of the properties
husband in favor of his employer within the contemplation of the said
levied. 
provision? 
 
 
On June 9, 1982, private respondents filed a case of injunction against
These are the issues which we will resolve in this petition for review. 
petitioners with the then Court of First Instance of Rizal (Pasig), Branch
 
XIII, to enjoin the auction sale alleging that petitioners cannot enforce the
The petitioner assails the decision dated April 14, 1994 of the respondent
judgment against the conjugal partnership levied on the ground that,
Court of Appeals in "Spouses Alfredo and Encarnacion  Ching vs.
among others, the subject loan did not redound to the benefit of the said
Ayala Investment and Development Corporation, et. al.," docketed as CA-
conjugal partnership.2 Upon application of private respondents, the lower
G.R. CV No. 29632, 1 upholding the decision of the Regional Trial Court
court issued a temporary restraining order to prevent petitioner Magsajo
of Pasig, Branch 168, which ruled that the conjugal partnership of gains of
from proceeding with the enforcement of the writ of execution and with
respondents-spouses Alfredo and Encarnacion Ching is not liable for the
the sale of the said properties at public auction. 
payment of the debts secured by respondent-husband Alfredo Ching. 
 
 
AIDC filed a petition for  certiorari  before the Court of Appeals,
A chronology of the essential antecedent facts is necessary for a clear
3 questioning the order of the lower court enjoining the sale. Respondent
understanding of the case at bar. 
Court of Appeals issued a Temporary Restraining Order on June 25, 1982,
 
enjoining the lower court4  from enforcing its Order of June 14, 1982,
Philippine Blooming Mills (hereinafter referred to as PBM) obtained a
thus paving the way for the scheduled auction sale of respondents-spouses
P50,300,000.00 loan from petitioner Ayala Investment and Development
conjugal properties. 
Corporation (hereinafter referred to as AIDC). As added security for the
 
credit line extended to PBM, respondent Alfredo Ching, Executive Vice
On June 25, 1982, the auction sale took place. AIDC being the only
President of PBM, executed security agreements on December 10, 1980
bidder, was issued a Certificate of Sale by petitioner Magsajo, which was
and on March 20, 1981 making himself jointly and severally answerable
registered on July 2, 1982. Upon expiration of the redemption period,
with PBM's indebtedness to AIDC. 
petitioner sheriff issued the final deed of sale on August 4, 1982 which
 
was registered on August 9, 1983. 
PBM failed to pay the loan. Thus, on July 30, 1981, AIDC filed a case for
 
sum of money against PBM and respondent-husband Alfredo Ching with
In the meantime, the respondent court, on August 4, 1982, decided CA-
the then Court of First Instance of Rizal (Pasig), Branch VIII, entitled
G.R. SP No. 14404, in this manner: 
"Ayala Investment and Development Corporation vs. Philippine Blooming
 
Mills and Alfredo Ching," docketed as Civil Case No. 42228.  "WHEREFORE, the petition for  certiorari  in this case is granted and the
  challenged order of the respondent Judge dated June 14, 1982 in Civil
86
 Case No. 46309 is hereby set aside and nullified. The same petition insofar the creditor-party litigant claiming as such. In the case at bar, respondent-
as it seeks to enjoin the respondent Judge from proceeding with Civil Case appellant AIDC failed to prove that the debt was contracted by appellee-
No. 46309 is, however, denied. No pronouncement is here made as to
husband, for the benefit of the conjugal partnership of gains." 
costs. . . ." 5 
   
On September 3, 1983, AIDC filed a motion to dismiss the petition for The dispositive portion of the decision reads: 
 
injunction filed before Branch XIII of the CFI of Rizal (Pasig) on the "WHEREFORE, in view of all the foregoing, judgment is hereby rendered
ground that the same had become moot and academic with the DISMISSING the appeal. The decision of the Regional Trial Court is
consummation of the sale. Respondents filed their opposition to the AFFIRMED in toto." 6 
motion arguing, among others, that where a third party who claims  
ownership of the property attached or levied upon, a different legal Petitioner filed a Motion for Reconsideration which was denied by the
situation is presented; and that in this case, two (2) of the real properties respondent court in a Resolution dated November 28, 1994. 7 
are actually in the name of Encarnacion Ching, a non-party to Civil Case  
No. 42228.  Hence, this petition for review. Petitioner contends that the "respondent
  court erred in ruling that the conjugal partnership of private respondents
The lower court denied the motion to dismiss. Hence, trial on the merits is not liable for the obligation by the respondent-husband." 
proceeded. Private respondents presented several witnesses. On the other  
hand, petitioners did not present any evidence.  Specifically, the errors allegedly committed by the respondent court are as
  follows: 
On September 18, 1991, the trial court promulgated its decision declaring  
the sale on execution null and void. Petitioners appealed to the "I. RESPONDENT COURT ERRED IN RULING THAT THE OBLIGATION
respondent court, which was docketed as CA-G.R. CV No. 29632.  INCURRED BY RESPONDENT HUSBAND DID NOT REDOUND TO THE
  BENEFIT OF THE CONJUGAL PARTNERSHIP OF THE PRIVATE
On April 14, 1994, the respondent court promulgated the assailed RESPONDENT. 
decision, affirming the decision of the regional trial court. It held that:   
  II. RESPONDENT COURT ERRED IN RULING THAT THE ACT OF
"The loan procured from respondent-appellant AIDC was for the RESPONDENT HUSBAND IN SECURING THE SUBJECT LOAN IS NOT
advancement and benefit of Philippine Blooming Mills and not for the PART OF HIS INDUSTRY, BUSINESS OR CAREER FROM WHICH HE
benefit of the conjugal partnership of petitioners-appellees.  SUPPORTS HIS FAMILY." 
   
xxx xxx xxx  Petitioners in their appeal point out that there is no need to prove that
  actual benefit redounded to the benefit of the partnership; all that is
As to the applicable law, whether it is Article 161 of the New Civil Code or necessary, they say, is that the transaction was entered into for the benefit
Article 1211 of the Family Code-suffice it to say that the two provisions of the conjugal partnership. Thus, petitioners aver that: 
are substantially the same. Nevertheless, We agree with the trial court that  
the Family Code is the applicable law on the matter . . .  "The wordings of Article 161 of the Civil Code is very clear: for the
  partnership to be held liable, the husband must have contracted the debt
Article 121 of the Family Code provides that 'The conjugal partnership 'for the benefit of' the partnership, thus: 
shall be liable for: . . . (2) All debts and obligations contracted during the  
marriage by the designated Administrator-Spouse for the benefit of the 'Art. 161. The conjugal partnership shall be liable for: 
conjugal partnership of gains . . .' The burden of proof that the debt was  
1) all debts and obligations contracted by the husband for the benefit of
contracted for the benefit of the conjugal partnership of gains, lies with
the conjugal partnership . . .' 
87
There is a difference between the phrases: 'redounded to the benefit of' or venture does not make it a private and personal one of the
'benefited from' (on the one hand) and 'for the benefit of' (on the other). husband." (Abella de Diaz) 
 
The former require that actual benefit must have been realized; the latter
"Debts contracted by the husband for and in the exercise of the industry
requires only that the transaction should be one which normally would or profession by which he contributes to the support of the family, cannot
produce benefit to the partnership, regardless of whether or not actual be deemed to be his exclusive and private debts." (Cobb-Perez) 
benefit accrued." 8   
  ". . . if he incurs an indebtedness in the legitimate pursuit of his career or
We do not agree with petitioners that there is a difference between the profession or suffers losses in a legitimate business, the conjugal
partnership must equally bear the indebtedness and the losses, unless he
terms "redounded to the benefit of" or "benefited from" on the one hand; deliberately acted to the prejudice of his family." (G-Tractors) 
and "for the benefit of" on the other. They mean one and the same thing.  
Article 161 (1) of the Civil Code and Article 121 (2) of the Family Code However, in the cases of Ansaldo vs. Sheriff of Manila, Fidelity Insurance &
are similarly worded,  i.e., both use the term "for the benefit of." On the Luzon Insurance Co.,  14  Liberty Insurance Corporation vs.
other hand, Article 122 of the Family Code provides that "The payment of Banuelos,  15  and  Luzon Surety Inc. vs. De Garcia,  16 cited by the
personal debts by the husband or the wife before or during the marriage respondents, we ruled that: 
shall not be charged to the conjugal partnership except insofar as  they  
redounded to the benefit of the family." As can be seen, the terms are used "The fruits of the paraphernal property which form part of the assets of
interchangeably.  the conjugal partnership, are subject to the payment of the debts and
  expenses of the spouses, but not to the payment of the personal
obligations (guaranty agreements) of the husband, unless it be proved
Petitioners further contend that the ruling of the respondent court runs
that such obligations were productive of some benefit to the
counter to the pronouncement of this Court in the case of Cobb-Perez vs. family." (Ansaldo; parenthetical phrase ours.) 
Lantin,9 that the husband as head of the family and as administrator of  
the conjugal partnership is presumed to have contracted obligations for "When there is no showing that the execution of an indemnity agreement
the benefit of the family or the conjugal partnership.  by the husband redounded to the benefit of his family, the undertaking is
  not a conjugal debt but an obligation personal to him."  (Liberty
Insurance) 
Contrary to the contention of the petitioners, the case of Cobb-Perez is not  
applicable in the case at bar. This Court has, on several instances, "In the most categorical language, a conjugal partnership under Article
interpreted the term "for the benefit of the conjugal partnership."  161 of the new Civil Code is liable only for such 'debts and obligations
  contracted by the husband for the benefit of the conjugal partnership.'
In the cases of  Javier vs. Osmeña,  10  Abella de Diaz vs. Erlanger & There must be the requisite showing then of some advantage which
clearly accrued to the welfare of the spouses. Certainly, to make a
Galinger, Inc., 11 Cobb-Perez vs. Lantin 12 and G-Tractors, Inc. vs. Court
conjugal partnership respond for a liability that should appertain to the
of Appeals, 13 cited by the petitioners, we held that:  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 debts contracted by the husband during the marriage relation, for the family as a unit. The husband, therefore, is denied the power to
and in the exercise of the industry or profession by which he contributes assume unnecessary and unwarranted risks to the financial stability of the
toward the support of his family, are not his personal and private debts, conjugal partnership." (Luzon Surety, Inc.) 
and the products or income from the wife's own property, which, like  
those of her husband's, are liable for the payment of the marriage From the foregoing jurisprudential rulings of this Court, we can derive the
expenses, cannot be excepted from the payment of such debts." (Javier)  following conclusions: 
 
"The husband, as the manager of the partnership (Article 1412, Civil
 
Code), has a right to embark the partnership in an ordinary commercial (A) If the husband himself is the principal obligor in the contract, i.e., he
enterprise for gain, and the fact that the wife may not approve of a directly received the money and services to be used in or for his own
business or his own profession, that contract falls within the term ". . .
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obligations for the benefit of the conjugal partnership." Here, no actual  
benefit may be proved. It is enough that the benefit to the family is . . . The burden of proof that the debt was contracted for the benefit of the
apparent at the time of the signing of the contract. From the very nature conjugal partnership of gains, lies with the creditor-party litigant claiming
of the contract of loan or services, the family stands to benefit from the as such. In the case at bar, respondent-appellant AIDC failed to prove that
loan facility or services to be rendered to the business or profession of the the debt was contracted by appellee-husband, for the benefit of the
husband. It is immaterial, if in the end, his business or profession fails or conjugal partnership of gains. What is apparent from the facts of the case
does not succeed. Simply stated, where the husband contracts obligations is that the judgment debt was contracted by or in the name of the
on behalf of the family business, the law presumes, and rightly so, that Corporation Philippine Blooming Mills and appellee-husband only signed
such obligation will redound to the benefit of the conjugal partnership.  as surety thereof. The debt is clearly a corporate debt and respondent-
  appellant's right of recourse against appellee-husband as surety is only to
(B) On the other hand, if the money or services are given to another the extent of his corporate stockholdings. It does not extend to the
person or entity, and the husband acted only as a  surety or guarantor, conjugal partnership of gains of the family of petitioners-
that contract cannot, by itself, alone be categorized as falling within the appellees. . . ." 17 
context of "obligations for the benefit of the conjugal partnership." The  
contract of loan or services is clearly for the benefit of the principal debtor Petitioners contend that no actual benefit need accrue to the conjugal
and not for the surety or his family. No presumption can be inferred that, partnership. To support this contention, they cite Justice J.B.L. Reyes'
when a husband enters into a contract of surety or accommodation authoritative opinion in the Luzon Surety Company case: 
agreement, it is "for the benefit of the conjugal partnership." Proof must  
be presented to establish benefit redounding to the conjugal partnership.  "I concur in the result, but would like to make of record that, in my
  opinion, the words 'all debts and obligations contracted by the husband
for the benefit of the conjugal partnership' used in Article 161 of the Civil
Thus, the distinction between the Cobb-Perez case, and we add, that of
Code of the Philippines in describing the charges and obligations for
the three other companion cases, on the one hand, and that of Ansaldo, which the conjugal partnership is liable do not require that actual profit
Liberty Insurance and Luzon Surety, is that in the former, the husband or benefit must accrue to the conjugal partnership from the husband's
contracted the obligation for his own business; while in the latter, the transaction; but it suffices that the transaction should be one that
husband merely acted as a surety for the loan contracted by another for normally would produce such benefit for the partnership. This is the ratio
the latter's business.  behind our ruling in  Javier vs. Osmeña, 34 Phil. 336, that obligations
incurred by the husband in the practice of his profession are collectible
  from the conjugal partnership." 
The evidence of petitioner indubitably show that co-respondent Alfredo  
Ching signed as surety for the P50M loan contracted on behalf of PBM. The aforequoted concurring opinion agreed with the majority decision
Petitioner should have adduced evidence to prove that Alfredo Ching's that the conjugal partnership should not be made liable for the surety
acting as surety redounded to the benefit of the conjugal partnership. The agreement which was clearly for the benefit of a third party. Such opinion
reason for this is as lucidly explained by the respondent court:  merely registered an exception to what may be construed as a sweeping
  statement that in all cases actual profit or benefit must accrue to the
"The loan procured from respondent-appellant AIDC was for the conjugal partnership. The opinion merely made it clear that no actual
advancement and benefit of Philippine Blooming Mills and not for the benefits to the family need be proved in some cases such as in the Javier
benefit of the conjugal partnership of petitioners-appellees. Philippine case. There, the husband was the principal obligor himself. Thus, said
Blooming Mills has a personality distinct and separate from the family of transaction was found to be "one that would normally produce . . . benefit
petitioners-appellees - this despite the fact that the members of the said for the partnership." In the later case of G-Tractors, Inc., the husband was
family happened to be stockholders of said corporate entity."  also the principal obligor - not merely the surety. This latter case,
  therefore, did not create any precedent. It did not also supersede the
xxx xxx xxx  Luzon Surety Company case, nor any of the previous accommodation

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contract cases, where this Court ruled that they were for the benefit of "obligations . . . for the benefit of the conjugal partnership"? Are indirect
third parties.  and remote probable benefits, the ones referred to in Article 161 of the
  Civil Code? The Court of Appeals in denying the motion for
But it could be argued, as the petitioner suggests, that even in such kind reconsideration, disposed of these questions in the following manner: 
of contract of accommodation, a benefit for the family may also  
result, when the guarantee is in favor of the husband's employer.  "No matter how one looks at it, the debt/credit extended by respondents-
  appellants is purely a corporate debt granted to PBM, with petitioner-
In the case at bar, petitioner claims that the benefits the respondent family appellee-husband merely signing as surety. While such petitioner-appellee-
would reasonably anticipate were the following:  husband, as such surety, is solidarily liable with the principal debtor AIDC,
  such liability under the Civil Code provisions is specifically restricted by
(a) The employment of co-respondent Alfredo Ching would be Article 122 (par. 1) of the Family Code, so that debts for which the
prolonged and he would be entitled to his monthly salary of husband is liable may not be charged against conjugal partnership
P20,000.00 for an extended length of time because of the loan he properties. Article 122 of the Family Code is explicit 'The payment of
guaranteed;  personal debts contracted by the husband or the wife before or during the
  marriage shall not be charged to the conjugal partnership except insofar
(b) The shares of stock of the members of his family would as they redounded to the benefit of the family.' 
appreciate if the PBM could be rehabilitated through the loan  
obtained;  Respondents-appellants insist that the corporate debt in question falls
  under the exception laid down in said Article 122 (par. one). We do not
(c) His prestige in the corporation would be enhanced and his agree. The loan procured from respondent-appellant AIDC was for the
career would be boosted should PBM survive because of the loan.  sole advancement and benefit of Philippine Blooming Mills and not for the
  benefit of the conjugal partnership of petitioners-appellees. 
However, these are not the benefits contemplated by Article 161 of the  
Civil Code. The benefits must be one directly resulting from the loan. It . . . appellee-husband derives salaries, dividends benefits from Philippine
cannot merely be a by-product or a spin-off of the loan itself.  Blooming Mills (the debtor corporation), only because said husband is an
  employee of said PBM. These salaries and benefits, are not the 'benefits'
In all our decisions involving accommodation contracts of the contemplated by Articles 121 and 122 of the Family Code. The 'benefits'
husband,  18  we underscored the requirement that: "there must be the contemplated by the exception in Article 122 (Family Code) is that benefit
requisite showing . . . of some advantage which clearly accrued to the derived directly from the use of the loan. In the case at bar, the loan is a
welfare of the spouses" or "benefits to his family" or "that such obligations corporate loan extended to PBM and used by PBM itself, not by petitioner-
are productive of some benefit to the family." Unfortunately, the petition appellee-husband or his family. The alleged benefit, if any, continuously
did not present any proof to show: (a) Whether or not the corporate harped by respondents-appellants, are not only incidental but also
existence of PBM was prolonged and for how many months or years; and/ speculative." 19 
or (b) Whether or not the PBM was saved by the loan and its shares of  
stock appreciated, if so, how much and how substantial was the holdings We agree with the respondent court. Indeed, considering the odds
of the Ching family.  involved in guaranteeing a large amount (P50,000,000.00) of loan, the
  probable prolongation of employment in PBM and increase in value of its
Such benefits (prospects of longer employment and probable increase in stocks, would be too small to qualify the transaction as one "for the
the value of stocks) might have been already apparent or could be benefit" of the surety's family. Verily, no one could say, with a degree of
anticipated at the time the accommodation agreement was entered into. certainty, that the said contract is even "productive of some benefits" to
But would those "benefits" qualify the transaction as one of the the conjugal partnership.  

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We likewise agree with the respondent court (and this view is not own; otherwise, their spouses' signatures are required in order to bind the
contested by the petitioners) that the provisions of the Family Code is conjugal partnerships. 
applicable in this case. These provisions highlight the underlying concern  
of the law for the conservation of the conjugal partnership; for the The fact that on several occasions the lending institutions did not require
husband's duty to protect and safeguard, if not augment, not to dissipate the signature of the wife and the husband signed alone does not mean
it.  that being a surety became part of his profession. Neither could he be
  presumed to have acted for the conjugal partnership. 
This is the underlying reason why the Family Code clarifies that the  
obligations entered into by one of the spouses must be those that Article 121, paragraph 3, of the Family Code is emphatic that the payment
redounded to the benefit of the family and that the measure of the of personal debts contracted by the husband or the wife before or during
partnership's liability is to "the extent that the family is benefited." 20  the marriage shall not be charged to the conjugal partnership except to
  the extent that they redounded to the benefit of the family. 
These are all in keeping with the spirit and intent of the other provisions  
of the Civil Code which prohibits any of the spouses to donate or convey Here, the property in dispute also involves the family home. The loan is a
gratuitously any part of the conjugal property.  21  Thus, when co- corporate loan not a personal one. Signing as a surety is certainly not an
respondent Alfredo Ching entered into a surety agreement he, from then exercise of an industry or profession nor an act of administration for the
on, definitely put in peril the conjugal property (in this case, including the benefit of the family. 
family home) and placed it in danger of being taken gratuitously as in  
cases of donation.  On the basis of the facts, the rules, the law and equity, the assailed
  decision should be upheld as we now uphold it. This is, of course, without
In the second assignment of error, the petitioner advances the view that prejudice to petitioner's right to enforce the obligation in its favor against
acting as surety is part of the business or profession of the respondent- the PBM receiver in accordance with the rehabilitation program and
husband.  payment schedule approved or to be approved by the Securities &
  Exchange Commission. 
This theory is new as it is novel.   
  WHEREFORE, the petition for review should be, as it is
The respondent court correctly observed that:  hereby, DENIED for lack of merit. 
   
"Signing as a surety is certainly not an exercise of an industry or SO ORDERED. 
profession, hence the cited cases of Cobb-Perez vs. Lantin; Abella de Diaz
vs. Erlanger & Galinger; G-Tractors, Inc. vs. CA do not apply in the instant
case. Signing as a surety is not embarking in a business." 22 
 
We are likewise of the view that no matter how often an executive acted
or was persuaded to act, as a surety for his own employer, this should not
be taken to mean that he had thereby embarked in the business of
suretyship or guaranty. 
 
This is not to say, however, that we are unaware that executives are often
asked to stand as surety for their company's loan obligations. This is
especially true if the corporate officials have sufficient property of their

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