THIRD DIVISION RESTITUTO M. ALCANTARA, Petitioner, G.R. No. 167746 Present: YNARES-SANTIAGO, J.

, Chairperson, AUSTRIA-MARTINEZ, CHICO-NAZARIO, NACHURA, and REYES, JJ.

- versus -

ROSITA A. ALCANTARA and HON. Promulgated: COURT OF APPEALS, Respondents. August 28, 2007 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION CHICO-NAZARIO, J.: Before this Court is a Petition for Review on Certiorari filed by petitioner Restituto Alcantara assailing the Decision[1] of the Court of Appeals dated 30 September 2004 in CA-G.R. CV No. 66724 denying petitioners appeal and affirming the decision [2] of the Regional Trial Court (RTC) of Makati City, Branch 143, in Civil Case No. 97-1325 dated 14 February 2000, dismissing his petition for annulment of marriage. The antecedent facts are: A petition for annulment of marriage[3] was filed by petitioner against respondent Rosita A. Alcantara alleging that on 8 December 1982 he and respondent, without securing the required marriage license, went to theManila City Hall for the purpose of looking for a person who could arrange a marriage for them. They met a person who, for a fee, arranged their wedding before a certain Rev. Aquilino Navarro, a Minister of the Gospel of the CDCC BR Chapel. [4] They got married on the same day, 8 December 1982. Petitioner and respondent went through another marriage ceremony at the San Jose de Manuguit Church in Tondo, Manila, on 26 March 1983. The marriage was likewise celebrated without the parties securing a marriage license. The alleged marriage license, procured in Carmona, Cavite, appearing on the marriage contract, is a sham, as neither party was a resident of Carmona, and they never went to Carmona to apply for a license with the local civil registrar of the said place. On 14 October 1985, respondent gave birth to their child Rose Ann Alcantara. In 1988, they parted ways and lived separate lives. Petitioner prayed that after due hearing, judgment be issued declaring their marriage void and ordering the Civil Registrar to cancel the corresponding marriage contract[5] and its entry on file.[6] Answering petitioners petition for annulment of marriage, respondent asserts the validity of their marriage and maintains that there was a marriage license issued as evidenced by a certification from the Office of the Civil Registry of Carmona, Cavite. Contrary to petitioners representation, respondent gave birth to their first child named Rose Ann Alcantara on 14 October 1985 and to another daughter named Rachel Ann Alcantara on27 October 1992.[7] Petitioner has a mistress with whom he has three children. [8] Petitioner only filed the annulment of their marriage to evade prosecution for concubinage. [9] Respondent, in fact, has filed a case forconcubinage against petitioner before

the Metropolitan Trial Court of Mandaluyong City, Branch 60.[10] Respondent prays that the petition for annulment of marriage be denied for lack of merit. On 14 February 2000, the RTC of Makati City, Branch 143, rendered its Decision disposing as follows: The foregoing considered, judgment is rendered as follows: 1. The Petition is dismissed for lack of merit;

2. Petitioner is ordered to pay respondent the sum of twenty thousand pesos (P20,000.00) per month as support for their two (2) children on the first five (5) days of each month; and 3. To pay the costs.[11]

As earlier stated, the Court of Appeals rendered its Decision dismissing the petitioners appeal. His Motion for Reconsideration was likewise denied in a resolution of the Court of Appeals dated 6 April 2005.
[12]

The Court of Appeals held that the marriage license of the parties is presumed to be regularly issued and petitioner had not presented any evidence to overcome the presumption. Moreover, the parties marriage contract being a public document is a prima facie proof of the questioned marriage under Section 44, Rule 130 of the Rules of Court. [13] In his Petition before this Court, petitioner raises the following issues for resolution: a. The Honorable Court of Appeals committed a reversible error when it ruled that the Petition for Annulment has no legal and factual basis despite the evidence on record that there was no marriage license at the precise moment of the solemnization of the marriage. The Honorable Court of Appeals committed a reversible error when it gave weight to the Marriage License No. 7054133 despite the fact that the same was not identified and offered as evidence during the trial, and was not the Marriage license number appearing on the face of the marriage contract. The Honorable Court of Appeals committed a reversible error when it failed to apply the ruling laid down by this Honorable Court in the case of Sy vs. Court of Appeals. (G.R. No. 127263, 12 April 2000 [330 SCRA 550]). The Honorable Court of Appeals committed a reversible error when it failed to relax the observance of procedural rules to protect and promote the substantial rights of the party litigants.[14]

b.

c.

d.

We deny the petition. Petitioner submits that at the precise time that his marriage with the respondent was celebrated, there was no marriage license because he and respondent just went to the Manila City Hall and dealt with a fixer who arranged everything for them.[15] The wedding took place at the stairs in Manila City Hall and not in CDCC BR Chapel where Rev. Aquilino Navarro who solemnized the marriage belongs. [16] He and respondent did not go to Carmona, Cavite, to apply for a marriage license. Assuming a marriage license from Carmona, Cavite, was issued to them, neither he nor the respondent was a resident of the place. The certification of the Municipal Civil Registrar of Carmona, Cavite, cannot be given weight because the

certification states that Marriage License number 7054133 was issued in favor of Mr. Restituto Alcantara and Miss Rosita Almario[17] but their marriage contract bears the number 7054033 for their marriage license number. The marriage involved herein having been solemnized on 8 December 1982, or prior to the effectivity of the Family Code, the applicable law to determine its validity is the Civil Code which was the law in effect at the time of its celebration. A valid marriage license is a requisite of marriage under Article 53 of the Civil Code, the absence of which renders the marriage void ab initio pursuant to Article 80(3)[18] in relation to Article 58 of the same Code.[19] Article 53 of the Civil Code[20] which was the law applicable at the time of the marriage of the parties states: Art. 53. No marriage shall be solemnized unless all these requisites are complied with: (1) (2) (3) (4) Legal capacity of the contracting parties; Their consent, freely given; Authority of the person performing the marriage; and A marriage license, except in a marriage of exceptional character.

The requirement and issuance of a marriage license is the States demonstration of its involvement and participation in every marriage, in the maintenance of which the general public is interested. [21] Petitioner cannot insist on the absence of a marriage license to impugn the validity of his marriage. The cases where the court considered the absence of a marriage license as a ground for considering the marriage void are clear-cut. In Republic of the Philippines v. Court of Appeals,[22] the Local Civil Registrar issued a certification of due search and inability to find a record or entry to the effect that Marriage License No. 3196182 was issued to the parties. The Court held that the certification of due search and inability to find a record or entry as to the purported marriage license, issued by the Civil Registrar of Pasig, enjoys probative value, he being the officer charged under the law to keep a record of all data relative to the issuance of a marriage license. Based on said certification, the Court held that there is absence of a marriage license that would render the marriage void ab initio. In Cario v. Cario,[23] the Court considered the marriage of therein petitioner Susan Nicdao and the deceased Santiago S. Carino as void ab initio. The records reveal that the marriage contract of petitioner and the deceased bears no marriage license number and, as certified by the Local Civil Registrar of San Juan, Metro Manila, their office has no record of such marriage license. The court held that the certification issued by the local civil registrar is adequate to prove the non-issuance of the marriage license. Their marriage having been solemnized without the necessary marriage license and not being one of the marriages exempt from the marriage license requirement, the marriage of the petitioner and the deceased is undoubtedly void ab initio. In Sy v. Court of Appeals,[24] the marriage license was issued on 17 September 1974, almost one year after the ceremony took place on 15 November 1973. The Court held that the ineluctable conclusion is that the marriage was indeed contracted without a marriage license.

In all these cases, there was clearly an absence of a marriage license which rendered the marriage void. Clearly, from these cases, it can be deduced that to be considered void on the ground of absence of a marriage license, the law requires that the absence of such marriage license must be apparent on the marriage contract, or at the very least, supported by a certification from the local civil registrar that no such marriage license was issued to the parties. In this case, the marriage contract between the petitioner and respondent reflects a marriage license number. A certification to this effect was also issued by the local civil registrar of Carmona, Cavite.[25] The certification moreover is precise in that it specifically identified the parties to whom the marriage license was issued, namely Restituto Alcantara and Rosita Almario, further validating the fact that a license was in fact issued to the parties herein. The certification of Municipal Civil Registrar Macrino L. Diaz of Carmona, Cavite, reads: This is to certify that as per the registry Records of Marriage filed in this office, Marriage License No. 7054133 was issued in favor of Mr. Restituto Alcantara and Miss Rosita Almario on December 8, 1982. This Certification is being issued upon the request of Mrs. Rosita A. Alcantara for whatever legal purpose or intents it may serve.[26] This certification enjoys the presumption that official duty has been regularly performed and the issuance of the marriage license was done in the regular conduct of official business. [27] The presumption of regularity of official acts may be rebutted by affirmative evidence of irregularity or failure to perform a duty. However, the presumption prevails until it is overcome by no less than clear and convincing evidence to the contrary. Thus, unless the presumption is rebutted, it becomes conclusive. Every reasonable intendment will be made in support of the presumption and, in case of doubt as to an officers act being lawful or unlawful, construction should be in favor of its lawfulness. [28] Significantly, apart from these, petitioner, by counsel, admitted that a marriage license was, indeed, issued in Carmona, Cavite.[29] Petitioner, in a faint attempt to demolish the probative value of the marriage license, claims that neither he nor respondent is a resident of Carmona, Cavite. Even then, we still hold that there is no sufficient basis to annul petitioner and respondents marriage. Issuance of a marriage license in a city or municipality, not the residence of either of the contracting parties, and issuance of a marriage license despite the absence of publication or prior to the completion of the 10-day period for publication are considered mere irregularities that do not affect the validity of the marriage. [30] An irregularity in any of the formal requisites of marriage does not affect its validity but the party or parties responsible for the irregularity are civilly, criminally and administratively liable.[31] Again, petitioner harps on the discrepancy between the marriage license number in the certification of the Municipal Civil Registrar, which states that the marriage license issued to the parties is No. 7054133, while the marriage contract states that the marriage license number of the parties is number 7054033. Once more, this argument fails to sway us. It is not impossible to assume that the same is a mere a typographical error, as a closer scrutiny of the marriage contract reveals the overlapping of the numbers 0 and 1, such that the marriage license may read either as 7054133 or 7054033. It therefore does not detract from our conclusion regarding the existence and issuance of said marriage license to the parties. Under the principle that he who comes to court must come with clean hands, [32] petitioner cannot pretend that he was not responsible or a party to the marriage celebration which he now insists took place without the requisite marriage license. Petitioner admitted that the civil marriage took place because he initiated it.[33] Petitioner is an educated person. He is a mechanical engineer by profession. He knowingly and voluntarily went to the Manila City Hall and likewise, knowingly and voluntarily, went through a marriage ceremony. He cannot benefit from his action and be allowed to extricate himself from the marriage bond at his mere say-so when the situation is no longer palatable to his taste or suited to his

lifestyle. We cannot countenance such effrontery. His attempt to make a mockery of the institution of marriage betrays his bad faith.[34] Petitioner and respondent went through a marriage ceremony twice in a span of less than one year utilizing the same marriage license. There is no claim that he went through the second wedding ceremony in church under duress or with a gun to his head. Everything was executed without nary a whimper on the part of the petitioner. In fact, for the second wedding of petitioner and respondent, they presented to the San Jose de Manuguit Church the marriage contract executed during the previous wedding ceremony before the Manila City Hall. This is confirmed in petitioners testimony as follows WITNESS As I remember your honor, they asked us to get the necessary document prior to the wedding. COURT What particular document did the church asked you to produce? I am referring to the San Jose de Manuguit church. WITNESS I dont remember your honor. COURT Were you asked by the church to present a Marriage License? WITNESS I think they asked us for documents and I said we have already a Marriage Contract and I dont know if it is good enough for the marriage and they accepted it your honor. COURT In other words, you represented to the San Jose de Manuguit church that you have with you already a Marriage Contract? WITNESS Yes your honor. COURT That is why the San Jose de Manuguit church copied the same marriage License in the Marriage Contract issued which Marriage License is Number 7054033. WITNESS Yes your honor.[35] The logical conclusion is that petitioner was amenable and a willing participant to all that took place at that time. Obviously, the church ceremony was confirmatory of their civil marriage, thereby cleansing whatever irregularity or defect attended the civil wedding. [36] Likewise, the issue raised by petitioner -- that they appeared before a fixer who arranged everything for them and who facilitated the ceremony before a certain Rev. Aquilino Navarro, a Minister of the Gospel of the CDCC Br Chapel -- will not strengthen his posture. The authority of the officer or clergyman shown to have performed a marriage ceremony will be presumed in the absence of any showing to the contrary.[37] Moreover, the solemnizing officer is not duty-bound to investigate whether or not a marriage license has been duly and regularly issued by the local civil registrar. All the solemnizing

officer needs to know is that the license has been issued by the competent official, and it may be presumed from the issuance of the license that said official has fulfilled the duty to ascertain whether the contracting parties had fulfilled the requirements of law. [38] Semper praesumitur pro matrimonio. The presumption is always in favor of the validity of the marriage.[39] Every intendment of the law or fact leans toward the validity of the marriage bonds. The Courts look upon this presumption with great favor. It is not to be lightly repelled; on the contrary, the presumption is of great weight. WHEREFORE, premises considered, the instant Petition is DENIED for lack of merit. The decision of the Court of Appeals dated 30 September 2004 affirming the decision of the Regional Trial Court, Branch 143 of Makati City, dated 14 February 2000, are AFFIRMED. Costs against petitioner. SO ORDERED. MINITA V. CHICO-NAZARIO Associate Justice

THIRD DIVISION G.R. No. 175581 March 28, 2008

REPUBLIC OF THE PHILIPPINES, Petitioner, vs. JOSE A. DAYOT, Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 179474 FELISA TECSON-DAYOT, Petitioner, vs. JOSE A. DAYOT, Respondent. DECISION CHICO-NAZARIO, J.: Before us are two consolidated petitions. G.R. No. 175581 and G.R. No. 179474 are Petitions for Review under Rule 45 of the Rules of Court filed by the Republic of the Philippines and Felisa Tecson-Dayot (Felisa), respectively, both challenging the Amended Decision 1 of the Court of Appeals, dated 7 November 2006, in CA-G.R. CV No. 68759, which declared the marriage between Jose Dayot (Jose) and Felisa void ab initio. The records disclose that on 24 November 1986, Jose and Felisa were married at the Pasay City Hall. The marriage was solemnized by Rev. Tomas V. Atienza. 2 In lieu of a marriage license, Jose and Felisa executed a sworn affidavit,3 also dated 24 November 1986, attesting that both of them had attained the age of maturity, and that being unmarried, they had lived together as husband and wife for at least five years.

On 7 July 1993, Jose filed a Complaint 4 for Annulment and/or Declaration of Nullity of Marriage with the Regional Trial Court (RTC), Bian, Laguna, Branch 25. He contended that his marriage with Felisa was a sham, as no marriage ceremony was celebrated between the parties; that he did not execute the sworn affidavit stating that he and Felisa had lived as husband and wife for at least five years; and that his consent to the marriage was secured through fraud. In his Complaint, Jose gave his version of the events which led to his filing of the same. According to Jose, he was introduced to Felisa in 1986. Immediately thereafter, he came to live as a boarder in Felisas house, the latter being his landlady. Some three weeks later, Felisa requested him to accompany her to the Pasay City Hall, ostensibly so she could claim a package sent to her by her brother from Saudi Arabia. At the Pasay City Hall, upon a pre-arranged signal from Felisa, a man bearing three folded pieces of paper approached them. They were told that Jose needed to sign the papers so that the package could be released to Felisa. He initially refused to do so. However, Felisa cajoled him, and told him that his refusal could get both of them killed by her brother who had learned about their relationship. Reluctantly, he signed the pieces of paper, and gave them to the man who immediately left. It was in February 1987 when he discovered that he had contracted marriage with Felisa. He alleged that he saw a piece of paper lying on top of the table at the sala of Felisas house. When he perused the same, he discovered that it was a copy of his marriage contract with Felisa. When he confronted Felisa, the latter feigned ignorance. In opposing the Complaint, Felisa denied Joses allegations and defended the validity of their marriage. She declared that they had maintained their relationship as man and wife absent the legality of marriage in the early part of 1980, but that she had deferred contracting marriage with him on account of their age difference.5 In her pre-trial brief, Felisa expounded that while her marriage to Jose was subsisting, the latter contracted marriage with a certain Rufina Pascual (Rufina) on 31 August 1990. On 3 June 1993, Felisa filed an action for bigamy against Jose. Subsequently, she filed an administrative complaint against Jose with the Office of the Ombudsman, since Jose and Rufina were both employees of the National Statistics and Coordinating Board.6 The Ombudsman found Jose administratively liable for disgraceful and immoral conduct, and meted out to him the penalty of suspension from service for one year without emolument.7 On 26 July 2000, the RTC rendered a Decision8 dismissing the Complaint. It disposed: WHEREFORE, after a careful evaluation and analysis of the evidence presented by both parties, this Court finds and so holds that the [C]omplaint does not deserve a favorable consideration. Accordingly, the above-entitled case is hereby ordered DISMISSED with costs against [Jose]. 9 The RTC ruled that from the testimonies and evidence presented, the marriage celebrated between Jose and Felisa on 24 November 1986 was valid. It dismissed Joses version of the story as implausible, and rationalized that: Any person in his right frame of mind would easily suspect any attempt to make him or her sign a blank sheet of paper. [Jose] could have already detected that something was amiss, unusual, as they were at Pasay City Hall to get a package for [Felisa] but it [was] he who was made to sign the pieces of paper for the release of the said package. Another indirect suggestion that could have put him on guard was the fact that, by his own admission, [Felisa] told him that her brother would kill them if he will not sign the papers. And yet it took him, more or less, three months to "discover" that the pieces of paper that he signed was [sic] purportedly the marriage contract. [Jose] does not seem to be that ignorant, as perceived by this Court, to be "taken in for a ride" by [Felisa.] [Joses] claim that he did not consent to the marriage was belied by the fact that he acknowledged Felisa Tecson as his wife when he wrote [Felisas] name in the duly notarized statement of assets and liabilities he filled up on May 12, 1988, one year after he discovered the marriage contract he is now claiming to be sham and false. [Jose], again, in his company I.D., wrote the name of [Felisa] as the person to be contacted in case of emergency. This Court does not believe that the only reason why her name was

written in his company I.D. was because he was residing there then. This is just but a lame excuse because if he really considers her not his lawfully wedded wife, he would have written instead the name of his sister. When [Joses] sister was put into the witness stand, under oath, she testified that she signed her name voluntarily as a witness to the marriage in the marriage certificate (T.S.N., page 25, November 29, 1996) and she further testified that the signature appearing over the name of Jose Dayot was the signature of his [sic] brother that he voluntarily affixed in the marriage contract (page 26 of T.S.N. taken on November 29, 1996), and when she was asked by the Honorable Court if indeed she believed that Felisa Tecson was really chosen by her brother she answered yes. The testimony of his sister all the more belied his claim that his consent was procured through fraud. 10 Moreover, on the matter of fraud, the RTC ruled that Joses action had prescribed. It cited Article 87 11 of the New Civil Code which requires that the action for annulment of marriage must be commenced by the injured party within four years after the discovery of the fraud. Thus: That granting even for the sake of argument that his consent was obtained by [Felisa] through fraud, trickery and machinations, he could have filed an annulment or declaration of nullity of marriage at the earliest possible opportunity, the time when he discovered the alleged sham and false marriage contract. [Jose] did not take any action to void the marriage at the earliest instance. x x x. 12 Undeterred, Jose filed an appeal from the foregoing RTC Decision to the Court of Appeals. In a Decision dated 11 August 2005, the Court of Appeals found the appeal to be without merit. The dispositive portion of the appellate courts Decision reads: WHEREFORE, the Decision appealed from is AFFIRMED.13 The Court of Appeals applied the Civil Code to the marriage between Jose and Felisa as it was solemnized prior to the effectivity of the Family Code. The appellate court observed that the circumstances constituting fraud as a ground for annulment of marriage under Article 86 14 of the Civil Code did not exist in the marriage between the parties. Further, it ruled that the action for annulment of marriage on the ground of fraud was filed beyond the prescriptive period provided by law. The Court of Appeals struck down Joses appeal in the following manner: Nonetheless, even if we consider that fraud or intimidation was employed on Jose in giving his consent to the marriage, the action for the annulment thereof had already prescribed. Article 87 (4) and (5) of the Civil Code provides that the action for annulment of marriage on the ground that the consent of a party was obtained by fraud, force or intimidation must be commenced by said party within four (4) years after the discovery of the fraud and within four (4) years from the time the force or intimidation ceased. Inasmuch as the fraud was allegedly discovered by Jose in February, 1987 then he had only until February, 1991 within which to file an action for annulment of marriage. However, it was only on July 7, 1993 that Jose filed the complaint for annulment of his marriage to Felisa. 15 Likewise, the Court of Appeals did not accept Joses assertion that his marriage to Felisa was void ab initio for lack of a marriage license. It ruled that the marriage was solemnized under Article 76 16 of the Civil Code as one of exceptional character, with the parties executing an affidavit of marriage between man and woman who have lived together as husband and wife for at least five years. The Court of Appeals concluded that the falsity in the affidavit to the effect that Jose and Felisa had lived together as husband and wife for the period required by Article 76 did not affect the validity of the marriage, seeing that the solemnizing officer was misled by the statements contained therein. In this manner, the Court of Appeals gave credence to the good-faith reliance of the solemnizing officer over the falsity of the affidavit. The appellate court further noted that on the dorsal side of said affidavit of marriage, Rev. Tomas V. Atienza, the solemnizing officer, stated that he took steps to ascertain the ages and other qualifications of the contracting parties and found no legal impediment to their marriage. Finally, the Court of Appeals

dismissed Joses argument that neither he nor Felisa was a member of the sect to which Rev. Tomas V. Atienza belonged. According to the Court of Appeals, Article 56 17 of the Civil Code did not require that either one of the contracting parties to the marriage must belong to the solemnizing officers church or religious sect. The prescription was established only in Article 7 18 of the Family Code which does not govern the parties marriage. Differing with the ruling of the Court of Appeals, Jose filed a Motion for Reconsideration thereof.1avvphi1 His central opposition was that the requisites for the proper application of the exemption from a marriage license under Article 76 of the Civil Code were not fully attendant in the case at bar. In particular, Jose cited the legal condition that the man and the woman must have been living together as husband and wife for at least five years before the marriage. Essentially, he maintained that the affidavit of marital cohabitation executed by him and Felisa was false. The Court of Appeals granted Joses Motion for Reconsideration and reversed itself. Accordingly, it rendered an Amended Decision, dated 7 November 2006, the fallo of which reads: WHEREFORE, the Decision dated August 11, 2005 is RECALLED and SET ASIDE and another one entered declaring the marriage between Jose A. Dayot and Felisa C. Tecson void ab initio. Furnish a copy of this Amended Decision to the Local Civil Registrar of Pasay City. 19 In its Amended Decision, the Court of Appeals relied on the ruling of this Court in Nial v. Bayadog, 20 and reasoned that: In Nial v. Bayadog, where the contracting parties to a marriage solemnized without a marriage license on the basis of their affidavit that they had attained the age of majority, that being unmarried, they had lived together for at least five (5) years and that they desired to marry each other, the Supreme Court ruled as follows: "x x x In other words, the five-year common-law cohabitation period, which is counted back from the date of celebration of marriage, should be a period of legal union had it not been for the absence of the marriage. This 5-year period should be the years immediately before the day of the marriage and it should be a period of cohabitation characterized by exclusivity meaning no third party was involved at any time within the 5 years and continuity that is unbroken. Otherwise, if that continuous 5-year cohabitation is computed without any distinction as to whether the parties were capacitated to marry each other during the entire five years, then the law would be sanctioning immorality and encouraging parties to have common law relationships and placing them on the same footing with those who lived faithfully with their spouse. Marriage being a special relationship must be respected as such and its requirements must be strictly observed. The presumption that a man and a woman deporting themselves as husband and wife is based on the approximation of the requirements of the law. The parties should not be afforded any excuse to not comply with every single requirement and later use the same missing element as a preconceived escape ground to nullify their marriage. There should be no exemption from securing a marriage license unless the circumstances clearly fall within the ambit of the exception. It should be noted that a license is required in order to notify the public that two persons are about to be united in matrimony and that anyone who is aware or has knowledge of any impediment to the union of the two shall make it known to the local civil registrar. Article 80(3) of the Civil Code provides that a marriage solemnized without a marriage license, save marriages of exceptional character, shall be void from the beginning. Inasmuch as the marriage between Jose and Felisa is not covered by the exception to the requirement of a marriage license, it is, therefore, void ab initio because of the absence of a marriage license. 21 Felisa sought reconsideration of the Amended Decision, but to no avail. The appellate court rendered a Resolution22 dated 10 May 2007, denying Felisas motion.

Meanwhile, the Republic of the Philippines, through the Office of the Solicitor General (OSG), filed a Petition for Review before this Court in G.R. No. 175581, praying that the Court of Appeals Amended Decision dated 7 November 2006 be reversed and set aside for lack of merit, and that the marriage between Jose and Felisa be declared valid and subsisting. Felisa filed a separate Petition for Review, docketed as G.R. No. 179474, similarly assailing the appellate courts Amended Decision. On 1 August 2007, this Court resolved to consolidate the two Petitions in the interest of uniformity of the Court rulings in similar cases brought before it for resolution.23 The Republic of the Philippines propounds the following arguments for the allowance of its Petition, to wit: I RESPONDENT FAILED TO OVERTHROW THE PRESUMPTION OF THE VALIDITY OF HIS MARRIAGE TO FELISA. II RESPONDENT DID NOT COME TO THE COURT WITH CLEAN HANDS AND SHOULD NOT BE ALLOWED TO PROFIT FROM HIS OWN FRAUDULENT CONDUCT. III RESPONDENT IS ESTOPPED FROM ASSAILING THE LEGALITY OF HIS MARRIAGE FOR LACK OF MARRIAGE LICEN[S]E.24 Correlative to the above, Felisa submits that the Court of Appeals misapplied Nial. 25 She differentiates the case at bar from Nial by reasoning that one of the parties therein had an existing prior marriage, a circumstance which does not obtain in her cohabitation with Jose. Finally, Felisa adduces that Jose only sought the annulment of their marriage after a criminal case for bigamy and an administrative case had been filed against him in order to avoid liability. Felisa surmises that the declaration of nullity of their marriage would exonerate Jose from any liability. For our resolution is the validity of the marriage between Jose and Felisa. To reach a considered ruling on the issue, we shall jointly tackle the related arguments vented by petitioners Republic of the Philippines and Felisa. The Republic of the Philippines asserts that several circumstances give rise to the presumption that a valid marriage exists between Jose and Felisa. For her part, Felisa echoes the claim that any doubt should be resolved in favor of the validity of the marriage by citing this Courts ruling in Hernandez v. Court of Appeals.26 To buttress its assertion, the Republic points to the affidavit executed by Jose and Felisa, dated 24 November 1986, attesting that they have lived together as husband and wife for at least five years, which they used in lieu of a marriage license. It is the Republics position that the falsity of the statements in the affidavit does not affect the validity of the marriage, as the essential and formal requisites were complied with; and the solemnizing officer was not required to investigate as to whether the said affidavit was legally obtained. The Republic opines that as a marriage under a license is not invalidated by the fact that the license was wrongfully obtained, so must a marriage not be invalidated by the fact that the parties incorporated a fabricated statement in their affidavit that they cohabited as husband and wife for at least five years. In addition, the Republic posits that the parties marriage contract states that their marriage was solemnized under Article 76 of the Civil Code. It also bears the signature of the parties and their witnesses, and must be considered a primary evidence of marriage. To further fortify its Petition, the Republic adduces the following documents: (1) Joses notarized Statement of Assets and Liabilities, dated 12 May 1988 wherein he wrote Felisas name as his wife; (2) Certification dated 25 July 1993 issued by the Barangay Chairman 192, Zone ZZ, District 24 of Pasay City, attesting that Jose and

Felisa had lived together as husband and wife in said barangay; and (3) Joses company ID card, dated 2 May 1988, indicating Felisas name as his wife. The first assignment of error compels this Court to rule on the issue of the effect of a false affidavit under Article 76 of the Civil Code. A survey of the prevailing rules is in order. It is beyond dispute that the marriage of Jose and Felisa was celebrated on 24 November 1986, prior to the effectivity of the Family Code. Accordingly, the Civil Code governs their union. Article 53 of the Civil Code spells out the essential requisites of marriage as a contract: ART. 53. No marriage shall be solemnized unless all these requisites are complied with: (1) Legal capacity of the contracting parties; (2) Their consent, freely given; (3) Authority of the person performing the marriage; and (4) A marriage license, except in a marriage of exceptional character. (Emphasis ours.) Article 5827 makes explicit that no marriage shall be solemnized without a license first being issued by the local civil registrar of the municipality where either contracting party habitually resides, save marriages of an exceptional character authorized by the Civil Code, but not those under Article 75. 28 Article 80(3)29 of the Civil Code makes it clear that a marriage performed without the corresponding marriage license is void, this being nothing more than the legitimate consequence flowing from the fact that the license is the essence of the marriage contract.30 This is in stark contrast to the old Marriage Law, 31 whereby the absence of a marriage license did not make the marriage void. The rationale for the compulsory character of a marriage license under the Civil Code is that it is the authority granted by the State to the contracting parties, after the proper government official has inquired into their capacity to contract marriage. 32 Under the Civil Code, marriages of exceptional character are covered by Chapter 2, Title III, comprising Articles 72 to 79. To wit, these marriages are: (1) marriages in articulo mortis or at the point of death during peace or war, (2) marriages in remote places, (2) consular marriages, 33 (3) ratification of marital cohabitation, (4) religious ratification of a civil marriage, (5) Mohammedan or pagan marriages, and (6) mixed marriages.34 The instant case pertains to a ratification of marital cohabitation under Article 76 of the Civil Code, which provides: ART. 76. No marriage license shall be necessary when a man and a woman who have attained the age of majority and who, being unmarried, have lived together as husband and wife for at least five years, desire to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The official, priest or minister who solemnized the marriage shall also state in an affidavit that he took steps to ascertain the ages and other qualifications of the contracting parties and that he found no legal impediment to the marriage. The reason for the law,35 as espoused by the Code Commission, is that the publicity attending a marriage license may discourage such persons who have lived in a state of cohabitation from legalizing their status.36 It is not contested herein that the marriage of Jose and Felisa was performed without a marriage license. In lieu thereof, they executed an affidavit declaring that "they have attained the age of maturity; that being unmarried, they have lived together as husband and wife for at least five years; and that because of this

union, they desire to marry each other." 37 One of the central issues in the Petition at bar is thus: whether the falsity of an affidavit of marital cohabitation, where the parties have in truth fallen short of the minimum five-year requirement, effectively renders the marriage void ab initio for lack of a marriage license. We answer in the affirmative. Marriages of exceptional character are, doubtless, the exceptions to the rule on the indispensability of the formal requisite of a marriage license. Under the rules of statutory construction, exceptions, as a general rule, should be strictly38 but reasonably construed.39 They extend only so far as their language fairly warrants, and all doubts should be resolved in favor of the general provisions rather than the exception.40 Where a general rule is established by statute with exceptions, the court will not curtail the former or add to the latter by implication. 41 For the exception in Article 76 to apply, it is a sine qua non thereto that the man and the woman must have attained the age of majority, and that, being unmarried, they have lived together as husband and wife for at least five years. A strict but reasonable construction of Article 76 leaves us with no other expediency but to read the law as it is plainly written. The exception of a marriage license under Article 76 applies only to those who have lived together as husband and wife for at least five years and desire to marry each other. The Civil Code, in no ambiguous terms, places a minimum period requirement of five years of cohabitation. No other reading of the law can be had, since the language of Article 76 is precise. The minimum requisite of five years of cohabitation is an indispensability carved in the language of the law. For a marriage celebrated under Article 76 to be valid, this material fact cannot be dispensed with. It is embodied in the law not as a directory requirement, but as one that partakes of a mandatory character. It is worthy to mention that Article 76 also prescribes that the contracting parties shall state the requisite facts 42 in an affidavit before any person authorized by law to administer oaths; and that the official, priest or minister who solemnized the marriage shall also state in an affidavit that he took steps to ascertain the ages and other qualifications of the contracting parties and that he found no legal impediment to the marriage. It is indubitably established that Jose and Felisa have not lived together for five years at the time they executed their sworn affidavit and contracted marriage. The Republic admitted that Jose and Felisa started living together only in June 1986, or barely five months before the celebration of their marriage.43 The Court of Appeals also noted Felisas testimony that Jose was introduced to her by her neighbor, Teresita Perwel, sometime in February or March 1986 after the EDSA Revolution. 44 The appellate court also cited Felisas own testimony that it was only in June 1986 when Jose commenced to live in her house.45 Moreover, it is noteworthy that the question as to whether they satisfied the minimum five-year requisite is factual in nature. A question of fact arises when there is a need to decide on the truth or falsehood of the alleged facts.46Under Rule 45, factual findings are ordinarily not subject to this Courts review. 47 It is already well-settled that: The general rule is that the findings of facts of the Court of Appeals are binding on this Court. A recognized exception to this rule is when the Court of Appeals and the trial court, or in this case the administrative body, make contradictory findings. However, the exception does not apply in every instance that the Court of Appeals and the trial court or administrative body disagree. The factual findings of the Court of Appeals remain conclusive on this Court if such findings are supported by the record or based on substantial evidence.48 Therefore, the falsity of the affidavit dated 24 November 1986, executed by Jose and Felisa to exempt them from the requirement of a marriage license, is beyond question. We cannot accept the insistence of the Republic that the falsity of the statements in the parties affidavit will not affect the validity of marriage, since all the essential and formal requisites were complied with. The argument deserves scant merit. Patently, it cannot be denied that the marriage between Jose and Felisa

was celebrated without the formal requisite of a marriage license. Neither did Jose and Felisa meet the explicit legal requirement in Article 76, that they should have lived together as husband and wife for at least five years, so as to be excepted from the requirement of a marriage license. Anent petitioners reliance on the presumption of marriage, this Court holds that the same finds no applicability to the case at bar. Essentially, when we speak of a presumption of marriage, it is with reference to the prima facie presumption that a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage. 49 Restated more explicitly, persons dwelling together in apparent matrimony are presumed, in the absence of any counter-presumption or evidence special to the case, to be in fact married. 50 The present case does not involve an apparent marriage to which the presumption still needs to be applied. There is no question that Jose and Felisa actually entered into a contract of marriage on 24 November 1986, hence, compelling Jose to institute a Complaint for Annulment and/or Declaration of Nullity of Marriage, which spawned the instant consolidated Petitions. In the same vein, the declaration of the Civil Code 51 that every intendment of law or fact leans towards the validity of marriage will not salvage the parties marriage, and extricate them from the effect of a violation of the law. The marriage of Jose and Felisa was entered into without the requisite marriage license or compliance with the stringent requirements of a marriage under exceptional circumstance. The solemnization of a marriage without prior license is a clear violation of the law and would lead or could be used, at least, for the perpetration of fraud against innocent and unwary parties, which was one of the evils that the law sought to prevent by making a prior license a prerequisite for a valid marriage. 52 The protection of marriage as a sacred institution requires not just the defense of a true and genuine union but the exposure of an invalid one as well. 53 To permit a false affidavit to take the place of a marriage license is to allow an abject circumvention of the law. If this Court is to protect the fabric of the institution of marriage, we must be wary of deceptive schemes that violate the legal measures set forth in our laws. Similarly, we are not impressed by the ratiocination of the Republic that as a marriage under a license is not invalidated by the fact that the license was wrongfully obtained, so must a marriage not be invalidated by a fabricated statement that the parties have cohabited for at least five years as required by law. The contrast is flagrant. The former is with reference to an irregularity of the marriage license, and not to the absence of one. Here, there is no marriage license at all. Furthermore, the falsity of the allegation in the sworn affidavit relating to the period of Jose and Felisas cohabitation, which would have qualified their marriage as an exception to the requirement for a marriage license, cannot be a mere irregularity, for it refers to a quintessential fact that the law precisely required to be deposed and attested to by the parties under oath. If the essential matter in the sworn affidavit is a lie, then it is but a mere scrap of paper, without force and effect. Hence, it is as if there was no affidavit at all. In its second assignment of error, the Republic puts forth the argument that based on equity, Jose should be denied relief because he perpetrated the fabrication, and cannot thereby profit from his wrongdoing. This is a misplaced invocation. It must be stated that equity finds no room for application where there is a law.54 There is a law on the ratification of marital cohabitation, which is set in precise terms under Article 76 of the Civil Code. Nonetheless, the authorities are consistent that the declaration of nullity of the parties marriage is without prejudice to their criminal liability. 55 The Republic further avers in its third assignment of error that Jose is deemed estopped from assailing the legality of his marriage for lack of a marriage license. It is claimed that Jose and Felisa had lived together from 1986 to 1990, notwithstanding Joses subsequent marriage to Rufina Pascual on 31 August 1990, and that it took Jose seven years before he sought the declaration of nullity; hence, estoppel had set in. This is erroneous. An action for nullity of marriage is imprescriptible. 56 Jose and Felisas marriage was celebrated sans a marriage license. No other conclusion can be reached except that it is void ab initio. In this case, the right to impugn a void marriage does not prescribe, and may be raised any time.

Lastly, to settle all doubts, jurisprudence has laid down the rule that the five-year common-law cohabitation period under Article 76 means a five-year period computed back from the date of celebration of marriage, and refers to a period of legal union had it not been for the absence of a marriage. 57 It covers the years immediately preceding the day of the marriage, characterized by exclusivity - meaning no third party was involved at any time within the five years - and continuity that is unbroken. 58 WHEREFORE, the Petitions are DENIED. The Amended Decision of the Court of Appeals, dated 7 November 2006 in CA-G.R. CV No. 68759, declaring the marriage of Jose Dayot to Felisa Tecson-Dayot void ab initio, is AFFIRMED, without prejudice to their criminal liability, if any. No costs. SO ORDERED. MINITA V. CHICO-NAZARIO Associate Justice

FIRST DIVISION

[G.R. No. 118904. April 20, 1998]

ARTURIO TRINIDAD, petitioner, vs. COURT OF APPEALS, FELIX TRINIDAD (deceased) and LOURDES TRINIDAD, respondents. DECISION PANGANIBAN, J.: In the absence of a marriage contract and a birth certificate, how may marriage and filiation be proven?

The Case This is the main question raised in this petition for review on certiorari challenging the Court of Appeals[1] Decision promulgated on December 1, 1994 [2] and Resolution promulgated on February 8, 1995[3] in CA-GR CV No. 23275, which reversed the decision of the trial court and dismissed petitioners action for partition and damages.

On August 10, 1978, Petitioner Arturio Trinidad filed a complaint [4] for partition and damages against Private Respondents Felix and Lourdes, both surnamed Trinidad, before the Court of First Instance of Aklan, Branch I.[5] On October 28, 1982, Felix died without issue, so he was not substituted as a party. [6] On July 4, 1989, the trial court rendered a twenty-page decision [7] in favor of the petitioner, in which it ruled:[8] Considering therefore that this court is of the opinion that plaintiff is the legitimate son of Inocentes Trinidad, plaintiff is entitled to inherit the property left by his deceased father which is 1/3 of the 4 parcels of land subject matter of this case. Although the plaintiff had testified that he had been receiving [his] share from said land before and the same was stopped, there was no evidence introduced as to what year he stopped receiving his share and for how much. This court therefore cannot rule on that. In its four-page Decision, Respondent Court reversed the trial court on the ground that petitioner failed to adduce sufficient evidence to prove that his parents were legally married to each other and that acquisitive prescription against him had set in. The assailed Decision disposed:[9] WHEREFORE, the Court REVERSES the appealed decision. In lieu thereof, the Court hereby DISMISSES the [petitioners] complaint and the counterclaim thereto. Without costs. Respondent Court denied reconsideration in its impugned Resolution which reads: [10] The Court DENIES defendants-appellants motion for reconsideration, dated December 15, 1994, for lack of merit. There are no new or substantial matters raised in the motion that merit the modification of the decision. Hence, this petition.[11]

The Facts The assailed Decision recites the factual background of this case, as follows: [12] On August 10, 1978, plaintiff [herein petitioner] filed with the Court of First Instance of Aklan, Kalibo, Aklan, an action for partition of four (4) parcels of land, described therein, claiming that he was the son of the late Inocentes Trinidad, one of three (3) children of Patricio Trinidad, who was the original owner of the parcels of land. Patricio Trinidad died in 1940, leaving the four (4) parcels of land to his three (3) children, Inocentes, Lourdes and Felix. In 1970, plaintiff demanded from the defendants to partition the land into three (3) equal shares and to give him the one-third (1/3) individual share of his late father, but the defendants refused. In their answer, filed on September 07, 1978, defendants denied that plaintiff was the son of the late Inocentes Trinidad. Defendants contended that Inocentes was single when he died in 1941, before plaintiffs birth. Defendants also denied that plaintiff had lived with them, and claimed that the parcels of land described in the complaint had been in their possession since the death of their father in 1940 and that they had not given plaintiff a share in the produce of the land. Patricio Trinidad and Anastacia Briones were the parents of three (3) children, namely, Inocentes, Lourdes and Felix. When Patricio died in 1940, survived by the above named children, he left four (4) parcels of land, all situated at Barrio Tigayon, Kalibo Aklan. Arturio Trinidad, born on July 21, 1943, claimed to be the legitimate son of the late Inocentes Trinidad.

Arturio got married in 1966 to Candelaria Gaspar, at the age of twenty three (23). Sometime after the marriage, Arturio demanded from the defendants that the above-mentioned parcels of land be partitioned into three (3) equal shares and that he be given the one-third (1/3) individual shares of his late father, but defendants refused. In order to appreciate more clearly the evidence adduced by both parties, this Court hereby reproduces pertinent portions of the trial courts decision: [13] EVIDENCE FOR THE PLAINTIFF: Plaintiff presented as his first witness, Jovita Gerardo, 77 years old, (at the time she testified in 1981) who is the barangay captain of barrio Tigayon, Kalibo, Aklan, since 1972. She testified that before being elected as barrio captain she held the position of barrio council-woman for 4 years. Also she was [a member of the] board of director[s] of the Parent-Teachers Association of Tigayon, Kalibo, Aklan. That she knows the plaintiff because they are neighbors and she knows him from the time of his birth. She knows the father of the plaintiff as Inocentes Trinidad and his mother Felicidad Molato; both were already dead, Inocentes having died in 1944 and his wife died very much later. Witness recalls plaintiff was born in 1943 in Barrio Tigayon, Kalibo, Aklan, on July 21, 1943. At the time of the birth of the plaintiff, the house of the witness was about 30 meters away from plaintiffs parents[] house and she used to go there 2 or 3 times a week. That she knows both the defendants as they are also neighbors. That both Felix and Lourdes Trinidad are the uncle and aunt of Arturio because Inocentes Trinidad who is the father of the plaintiff is the brother of the defendants, Felix and Lourdes Trinidad. She testified she also knows that the father of Inocentes, Felix and Lourdes[,] all surnamed Trinidad[,] was Patricio Trinidad who is already dead but left several parcels of land which are the 4 parcels subject of this litigation. That she knows all these [parcels of] land because they are located in Barrio Tigayon. When asked about the adjoining owners or boundaries of the 4 parcels of land, witness answered and mentioned the respective adjoining owners. That she knew these 4 parcels belonged to Patricio Trinidad because said Patricio Trinidad was a native also of Barrio Tigayon. Said Patricio died before the [war] and after his death the land went to his 3 children, namely: Inocentes, Felix and Lourdes. Since then the land was never partitioned or divided among the 3 children of Patricio. A picture, Exhibit A, was shown to the witness for identification and she identified a woman in the picture as the defendant, Lourdes Trinidad. A man with a hat holding a baby was identified by her as Felix Trinidad, the defendant. The other woman in the picture was pointed by the witness as the wife of the plaintiff, Arturio Trinidad. When asked if Arturio Trinidad and Lourdes Trinidad and Felix Trinidad pointed to by her in the picture are the same Arturio, Felix and Lourdes, who are the plaintiff and the defendants in this case, witness answered yes. Another picture marked as Exhibit B was presented to the witness for identification. She testified the woman in this picture as Lourdes Trinidad. In said picture, Lourdes Trinidad was holding a child which witness identified as the child Arturio Trinidad. When asked by the court when xxx the picture [was] taken, counsel for the plaintiff answered, in 1966. When asked if Arturio Trinidad was baptized, witness answered yes, as she had gone to the house of his parents. Witness then identified the certificate of baptism marked as Exhibit C. The name Arturio Trinidad was marked as Exhibit C-1 and the name of Inocentes Trinidad and Felicidad Molato as father and mother respectively, were marked as Exhibit C2. The date of birth being July 21, 1943 was also marked. The signature of Monsignor Iturralde was also identified. On cross-examination, witness testified that she [knew] the land in question very well as she used to pass by it always. It was located just near her house but she cannot exactly tell the area as she merely passes by it. When asked if she [knew] the photographer who took the pictures presented as Exhibit A and B, witness answered she does not know as she was not present during the picture taking. However, she can identify everybody in the picture as she knows all of them.

At this stage of the trial, Felix Trinidad [died] without issue and he was survived by his only sister, Lourdes Trinidad, who is his co-defendant in this case. Next witness for the plaintiff was ISABEL MEREN who was 72 years old and a widow. She testified having known Inocentes Trinidad as the father of Arturio Trinidad and that Inocentes, Felix and Lourdes are brothers and sister and that their father was Patricio Trinidad who left them 4 parcels of land. That she knew Inocentes Trinidad and Felicidad Molato who are the parents of Arturio, the plaintiff, were married in New Washington, Aklan, by a protestant pastor by the name of Lauriano Lajaylajay. That she knows Felicidad Molato and Lourdes Trinidad very well because as a farmer she also owns a parcel of land [and] she used to invite Felicidad and Lourdes to help her during planting and harvesting season. That she knows that during the lifetime of Inocentes the three of them, Inocentes, Felix and Lourdes possessed and usufructed the 4 parcels they inherited from their father, Patricio. That upon the death of Inocentes, Lourdes Trinidad was in possession of the property without giving the widow of Inocentes any share of the produce. As Lourdes outlived her two brothers, namely: Felix and Inocentes, she was the one possessing and usufructing the 4 parcels of land up to the present. The witness testified that upon the death of Inocentes, Lourdes took Arturio and cared for him when he was still small, about 3 years old, until Arturio grew up and got married. That while Arturio was growing up, he had also enjoyed the produce of the land while he was being taken care of by Lourdes Trinidad. That a misunderstanding later on arose when Arturio Trinidad wanted to get his fathers share but Lourdes Trinidad will not give it to him. Plaintiff, ARTURIO TRINIDAD, himself, was presented as witness. He testified that defendants, Lourdes and Felix Trinidad, are his aunt and uncle, they being the brother and sister of his father. That the parents of his father and the defendants were Patricio Trinidad and Anastacia Briones. That both his father, Inocentes Trinidad, and mother, Felicidad Molato, were already dead having died in Tigayon, his father having died in 1944 and his mother about 25 years ago. As proof that he is the son of Inocentes Trinidad and Felicidad Molato, he showed a certificate of baptism which had been previously marked as Exhibit C. That his birth certificate was burned during World War 2 but he has a certificate of loss issued by the Civil Registrar of Kalibo, Aklan. When he was 14 years old, the defendants invited him to live with them being their nephew as his mother was already dead. Plaintiffs mother died when he was 13 years old. They treated him well and provided for all his needs. He lived with defendants for 5 years. At the age of 19, he left the house of the defendants and lived on his own. He got married at 23 to Candelaria Gaspar and then they were invited by the defendants to live with them. So he and his wife and children lived with the defendants. As proof that he and his family lived with the defendants when the latter invited him to live with them, he presented a picture previously marked as Exhibit B where there appears his aunt, Lourdes Trinidad, carrying plaintiffs daughter, his uncle and his wife. In short, it is a family picture according to him. Another family picture previously marked Exhibit A shows his uncle, defendant Felix Trinidad, carrying plaintiffs son. According to him, these 2 pictures were taken when he and his wife and children were living with the defendants. That a few years after having lived with them, the defendants made them vacate the house for he requested for partition of the land to get his share. He moved out and looked for [a] lawyer to handle his case. He testified there are 4 parcels of land in controversy of which parcel 1 is an upland. Parcel 1 is 1,000 square meters, [has] 10 coconut trees and fruit bearing. The harvest is 100 coconuts every 4 months and the cost of coconuts is P2.00 each. The boundaries are : East-Federico Inocencio; West-Teodulo Dionesio; North-Teodulo Dionesio; and South-Bulalio Briones; located at Tigayon. Parcel 2 is an upland with an area of 500 square meters; it has only 1 coconut tree and 1 bamboo groove; also located in Tigayon, Kalibo, Aklan. Adjoining owners are : East-Ambrosio Trinidad; North-Federico Inocencio; West-Patricio Trinidad and South-Gregorio Briones.

Parcel 3 is about 12,000 square meters and 1/4 of that belongs to Patricio Trinidad, the deceased father of the defendants and Inocentes, the father of the plaintiff. Parcel 4 is a riceland with an area of 5,000 square meters. The harvest is 40 cavans two times a years [sic]. Adjoining owners are: East-Gregorio Briones; West-Bulalio Briones; South-Federico Inocencio and North-Digna Carpio. Parcel 1 is Lot No. 903. Parcel 2 is Lot No. 864 of the cadastral survey of Kalibo and only Lot 864-A with an area of 540 square meters is the subject of litigation. Parcel 3 is Lot No. 979 of the cadastral survey of Kalibo covered by Tax Decl. No. 703310 with reference to one of the owners of the land, Patricio Trinidad married to Anastacia Briones, one-half share. Parcel 4 is covered by Original Certificate of Title No. 22502 RO-174 covering Lot No. 863 of the cadastral survey of Kalibo. The title is in the name of Patricio Trinidad married to Anastacia Briones. Parcel 1 is covered by Tax Decl. No. 11609 in the name of Patricio Trinidad while parcel 2 is covered by Tax Decl. No. 10626 in the name of Anastacia Briones and another Tax Declaration No. 11637 for Parcel 3 in the name of Ambrosio Trinidad while Parcel 4 is covered by Tax Decl. No. 16378 in the name of Patricio Trinidad. On cross-examination, plaintiff testified that during the lifetime of his mother they were getting the share in the produce of the land like coconuts, palay and corn. Plaintiff further testified that his father is Inocentes Trinidad and his mother was Felicidad Molato. They were married in New Washington, Aklan, by a certain Atty. Lajaylajay. When asked if this Atty. Lajaylajay is a municipal judge of New Washington, Aklan, plaintiff answered he does not know because he was not yet born at that time. That he does not have the death certificate of his father who died in 1944 because it was wartime. That after the death of his father, he lived with his mother and when his mother died[,] he lived with his aunt and uncle, the defendants in this case. That during the lifetime of his mother, it was his mother receiving the share of the produce of the land. That both defendants, namely Lourdes and Felix Trinidad, are single and they have no other nephews and nieces. That [petitioners] highest educational attainment is Grade 3. EVIDENCE FOR THE DEFENDANTS: First witness for the defendants was PEDRO BRIONES, 68 years old, unemployed and a resident of Nalook, Kalibo, Aklan. He testified having known the defendants, Felix and Lourdes Trinidad. They being his first cousins because the mother of Lourdes and Felix by the name of Anastacia Briones and his father are sister and brother. That he also knew Inocentes Trinidad being the brother of Felix and Lourdes and he is already dead. According to the witness, Inocentes Trinidad [died] in 1940 and at the time of his death Inocentes Trinidad was not married. That he knew this fact because at the time of the death of Inocentes Trinidad he was then residing with his aunt, Nanay Taya, referring to Anastacia Briones who is mother of the defendants, Felix and Lourdes Trinidad, as well as Inocentes Trinidad. That at the time of the death of Inocentes Trinidad, according to this witness he stayed with his aunt, Anastacia Trinidad, and with his children before 1940 for only 3 months. When asked if he knew Inocentes Trinidad cohabited with anybody before his death, he answered, That I do not know, neither does he kn[o]w a person by the name of Felicidad Molato. Furthermore, when asked if he can recall if during the lifetime of Inocentes Trinidad witness knew of anybody with whom said Inocentes Trinidad had lived as husband and wife, witness, Pedro Briones, answered that he could not recall because he was then in Manila working. That after the war, he had gone back to the house of his aunt, Anastacia, at Tigayon, Kalibo, as he always visit[s] her every Sunday, however, he does not know the plaintiff, Arturio Trinidad. When asked if after the death of

Inocentes Trinidad, he knew anybody who has stayed with the defendants who claimed to be a son of Inocentes Trinidad, witness, Pedro Briones, answered: I do not know about that.. On cross examination, witness testified that although he was born in Tigayon, Kalibo, Aklan, he started to reside in Nalook, Kalibo, as the hereditary property of their father was located there. When asked if he was aware of the 4 parcels of land which is the subject matter of this case before the court, witness answered that he does not know. What he knew is that among the 3 children of Patricio Trinidad, Inocentes is the eldest. And that at the time of the death of Inocentes in 1940, according to the witness when cross examined, Inocentes Trinidad was around 65 years old. That according to him, his aunt, Anastacia Briones, was already dead before the war. When asked on cross examination if he knew where Inocentes Trinidad was buried when he died in 1940, witness answered that he was buried in their own land because the Japanese forces were roaming around the place. When confronted with Exhibit A which is the alleged family picture of the plaintiff and the defendants, witness was able to identify the lady in the picture, which had been marked as Exhibit A-1, as Lourdes Trinidad, and the man wearing a hat on the said picture marked as Exhibit 2-A is Felix Trinidad. However, when asked if he knew the plaintiff, Arturio Trinidad, he said he does not know him. Next witness for the defendants was the defendant herself, LOURDES TRINIDAD. She stated that she is 75 years old, single and jobless. She testified that Inocentes Trinidad was her brother and he is already dead and he died in 1941 in Tigayon, Kalibo, Aklan. That before the death of her brother, Inocentes Trinidad, he had gone to Manila where he stayed for a long time and returned to Tigayon in 1941. According to her, upon arrival from Manila in 1941 his brother, Inocentes Trinidad, lived only for 15 days before he died. While his brother was in Manila, witness testified she was not aware that he had married anybody. Likewise, when he arrived in Tigayon in 1941, he also did [not] get married. When asked if she knew one by the name of Felicidad Molato, witness answered she knew her because Felicidad Molato was staying in Tigayon. However, according to her[,] she does not kn[o]w if her brother, Inocentes Trinidad, had lived with Felicidad Molato as husband and wife. When asked if she knew the plaintiff, Arturio Trinidad, she said, Yes, but she denied that Arturio Trinidad had lived with them. According to the witness, Arturio Trinidad did not live with the defendants but he stayed with his grandmother by the name of Maria Concepcion, his mother, Felicidad Molato, having died already. When asked by the court if there had been an instance when the plaintiff had lived with her even for days, witness answered, he did not. When further asked if Arturio Trinidad went to visit her in her house, witness also said, He did not. Upon cross examination by counsel for the plaintiff, Lourdes Trinidad testified that her parents, Anastacia Briones and Patricio Trinidad, had 3 children, namely: Inocentes Trinidad, Felix Trinidad and herself. But inasmuch as Felix and Inocentes are already dead, she is the only remaining daughter of the spouses Patricio Trinidad and Anastacia Briones. Defendant, Lourdes Trinidad, testified that her brother, Felix Trinidad, died without a wife and children, in the same manner that her brother, Inocentes Trinidad, died without a wife and children. She herself testified that she does not have any family of her own for she has [no] husband or children. According to her[,] when Inocentes Trinidad [died] in 1941, they buried him in their private lot in Tigayon because nobody will carry his coffin as it was wartime and the municipality of Kalibo was occupied by the Japanese forces. When further cross-examined that I[t] could not be true that Inocentes Trinidad died in March 1941 because the war broke out in December 1941 and March 1941 was still peace time, the witness could not answer the question. When she was presented with Exhibit A which is the alleged family picture wherein she was holding was [sic] the child of Arturio Trinidad, she answered; Yes. and the child that she is holding is Clarita Trinidad, child of Arturio Trinidad. According to her, she was only requested to hold this child to be brought to the church because she will be baptized and that the baptism took place in the parish church of Kalibo. When asked if there was a party, she answered; Maybe there was. When confronted with Exhibit A-1 which is herself in the picture carrying the child, witness identified herself and explained that she was requested to bring the child to the church and that the picture taken together with her brother and Arturio Trinidad and the latters child was taken during the time when she and Arturio Trinidad did not have a case in court yet. She likewise

identified the man with a hat holding a child marked as Exhibit A-2 as her brother, Felix. When asked if the child being carried by her brother, Felix Trinidad, is another child of the plaintiff, witness answered she does not know because her eyes are already blurred. Furthermore, when asked to identify the woman in the picture who was at the right of the child held by her brother, Felix, and who was previously identified by plaintiff, Arturio Trinidad, as his wife, witness answered that she cannot identify because she had a poor eyesight neither can she identify plaintiff, Arturio Trinidad, holding another child in the picture for the same reason. When asked by counsel for the plaintiff if she knows that the one who took this picture was the son of Ambrosio Trinidad by the name of Julito Trinidad who was also their cousin, witness testified that she does not know. Third witness for the defendants was BEATRIZ TRINIDAD SAYON who testified that she knew Arturio Trinidad because he was her neighbor in Tigayon. In the same manner that she also knew the defendants, Felix and Lourdes, and Inocentes all surnamed Trinidad because they were her cousins. She testified that a few months after the war broke out Inocentes Trinidad died in their lolas house whose names was Eugenia Rufo Trinidad. She further testified that Inocentes Trinidad had lived almost in his lifetime in Manila and he went home only when his father fetched him in Manila because he was already sick. That according to her, about 1 months after his arrival from Manila, Inocentes Trinidad died. She also testified that she knew Felicidad Molato and that Felicidad Molato had never been married to Inocentes Trinidad. According to her, it was in 1941 when Inocentes Trinidad died. According to her she was born in 1928, therefore, she was 13 or 14 years old when the war broke out. When asked if she can remember that it was only in the early months of the year 1943 when the Japanese occupied Kalibo, she said she [was] not sure. She further testified that Inocentes Trinidad was buried in their private lot because Kalibo was then occupied by the Japanese forces and nobody would carry his body to be buried in the Poblacion. For rebuttal evidence, [petitioner] presented ISABEL MEREN, who was 76 years old and a resident of Tigayon. Rebuttal witness testified that xxx she knew both the [petitioner] and the [private respondents] in this case very well as her house is only around 200 meters from them. When asked if it is true that according to Lourdes Trinidad, [Inocentes Trinidad] arrived from Manila in 1941 and he lived only for 15 days and died, witness testified that he did not die in that year because he died in the year 1944, and that Inocentes Trinidad lived with his sister, Lourdes Trinidad, in a house which is only across the street from her house. According to the said rebuttal witness, it is not true that Inocentes Trinidad died single because he had a wife by the name of Felicidad Molato whom he married on May 5, 1942 in New Washington, Aklan. That she knew this fact because she was personally present when couple was married by Lauriano Lajaylajay, a protestant pastor. On cross examination, rebuttal witness testified that when Inocentes Trinidad arrived from Manila he was in good physical condition. That she knew both Inocentes Trinidad and Felicidad Molato to be Catholics but that according to her, their marriage was solemnized by a Protestant minister and she was one of the sponsors. That during the marriage of Inocentes Trinidad and Felicidad Molato, Lourdes Trinidad and Felix Trinidad were also present. When plaintiff, ARTURIO TRINIDAD, was presented as rebuttal witness, he was not able to present a marriage contract of his parents but instead a certification dated September 5, 1978 issued by one Remedios Eleserio of the Local Civil Registrar of the Municipality of New Washington, Aklan, attesting to the fact that records of births, deaths, and marriages in the municipality of New Washington were destroyed during the Japanese time.

Respondent Courts Ruling In finding that petitioner was not a child, legitimate or otherwise, of the late Inocentes Trinidad, Respondent Court ruled:[14]

We sustain the appeal on the ground that plaintiff has not adduced sufficient evidence to prove that he is the son of the late Inocentes Trinidad. But the action to claim legitimacy has not prescribed. Plaintiff has not established that he was recognized, as a legitimate son of the late Inocentes Trinidad, in the record of birth or a final judgment, in a public document or a private handwritten instrument, or that he was in continuous possession of the status of a legitimate child. Two witnesses, Pedro Briones and Beatriz Trinidad Sayon, testified for the defendants that Inocentes Trinidad never married. He died single in 1941. One witness, Isabel Maren, testified in rebuttal for the plaintiff, that Inocentes Trinidad married Felicidad Molato in New Washington, Aklan, on May 5, 1942, solemnized by a pastor of the protestant church and that she attended the wedding ceremony (t.s.n. Sept. 6, 1988, p. 4). Hence, there was no preponderant evidence of the marriage, nor of Inocentes acknowledgment of plaintiff as his son, who was born on July 21, 1943. The right to demand partition does not prescribe (de Castro vs. Echarri, 20 Phil. 23). Where one of the interested parties openly and adversely occupies the property without recognizing the coownership (Cordova vs. Cordova, L-9936, January 14, 1958) acquisitive prescription may set in (Florenz D. Regalado, Remedial Law Compendium, Vol. I, Fifth Revised Edition, 1988, p. 497). Admittedly, the defendants have been in possession of the parcels of land involved in the concept of owners since their father died in 1940. Even if possession be counted from 1964, when plaintiff attained the age of majority, still, defendants possessed the land for more than ten (10) years, thus acquiring ownership of the same by acquisitive prescription (Article 1134, Civil Code of the Philippines).

The Issues Petitioner submits the following issues for resolution: [15] 1. Whether or not petitioner (plaintiff-appellee) has proven by preponderant evidence the marriage of his parents. 2. Whether or not petitioner (plaintiff-appellee) has adduced sufficient evidence to prove that he is the son of the late Inocentes Trinidad, brother of private respondents (defendantsappellants) Felix and Lourdes Trinidad. 3. Whether or not the Family Code is applicable to the case at bar[,] the decision of the Regional Trial Court having been promulgated on July 4, 1989, after the Family Code became effective on August 3, 1988. 4. Whether or not petitioners status as a legitimate child can be attacked collaterally by the private respondents. 5. Whether or not private respondent (defendants-appellants) have acquired ownership of the properties in question by acquisitive prescription. Simply stated, the main issues raised in this petition are: 1. Did petitioner present sufficient evidence of his parents marriage and of his filiation?

2. Was petitioners status as a legitimate child subject to collateral attack in the action for partition? 3. Was his claim time-barred under the rules on acquisitive prescription?

The Courts Ruling The merits of this petition are patent. The partition of the late Patricios real properties requires preponderant proof that petitioner is a co-owner or co-heir of the decedents estate. [16] His right as a coowner would, in turn, depend on whether he was born during the existence of a valid and subsisting marriage between his mother (Felicidad) and his putative father (Inocentes). This Court holds that such burden was successfully discharged by petitioner and, thus, the reversal of the assailed Decision and Resolution is inevitable.

First and Second Issues: Evidence of and Collateral Attack on Filiation At the outset, we stress that an appellate courts assessment of the evidence presented by the parties will not, as a rule, be disturbed because the Supreme Court is not a trier of facts. But in the face of the contradictory conclusions of the appellate and the trial courts, such rule does not apply here. So, we had to meticulously pore over the records and the evidence adduced in this case. [17] Petitioners first burden is to prove that Inocentes and his mother (Felicidad) were validly married, and that he was born during the subsistence of their marriage. This, according to Respondent Court, he failed to accomplish. This Court disagrees. Pugeda vs. Trias[18] ruled that when the question of whether a marriage has been contracted arises in litigation, said marriage may be proven by relevant evidence. To prove the fact of marriage, the following would constitute competent evidence: the testimony of a witness to the matrimony, the couples public and open cohabitation as husband and wife after the alleged wedlock, the birth and the baptismal certificates of children born during such union, and the mention of such nuptial in subsequent documents.[19] In the case at bar, petitioner secured a certification [20] from the Office of the Civil Registrar of Aklan that all records of births, deaths and marriages were either lost, burned or destroyed during the Japanese occupation of said municipality. This fact, however, is not fatal to petitioners case. Although the marriage contract is considered the primary evidence of the marital union, petitioners failure to present it is not proof that no marriage took place, as other forms of relevant evidence may take its place. [21] In place of a marriage contract, two witnesses were presented by petitioner: Isabel Meren, who testified that she was present during the nuptial of Felicidad and Inocentes on May 5, 1942 in New Washington, Aklan; and Jovita Gerardo, who testified that the couple deported themselves as husband and wife after the marriage. Gerardo, the 77-year old barangay captain of Tigayon and former board member of the local parent-teachers association, used to visit Inocentes and Felicidads house twice or thrice a week, as she lived only thirty meters away. [22] On July 21, 1943, Gerardo dropped by Inocentes house when Felicidad gave birth to petitioner. She also attended petitioners baptismal party held at the same house.[23] Her testimony constitutes evidence of common reputation respecting marriage. [24] It further gives rise to the disputable presumption that a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage. [25] Petitioner also presented his baptismal certificate (Exhibit C) in which Inocentes and Felicidad were named as the childs father and mother. [26] On the other hand, filiation may be proven by the following: ART. 265. The filiation of legitimate children is proved by the record of birth appearing in the Civil Register, or by an authentic document or a final judgment. ART. 266. In the absence of the titles indicated in the preceding article, the filiation shall be proved by the continuous possession of status of a legitimate child.

ART. 267. In the absence of a record of birth, authentic document, final judgment or possession of status, legitimate filiation may be proved by any other means allowed by the Rules of Court and special laws.[27] Petitioner submitted in evidence a certification [28] that records relative to his birth were either destroyed during the last world war or burned when the old town hall was razed to the ground on June 17, 1956. To prove his filiation, he presented in evidence two family pictures, his baptismal certificate and Gerardos testimony. The first family picture (Exhibit A) shows petitioner (Exhibit A-5) carrying his second daughter and his wife (Exhibit A-4) together with the late Felix Trinidad (Exhibit A-2) carrying petitioners first daughter, and Lourdes Trinidad (Exhibit A-1). Exhibit B is another picture showing Lourdes Trinidad (Exhibit B-1) carrying petitioners first child (Exhibit B-2). These pictures were taken before the case was instituted. Although they do not directly prove petitioners filiation to Inocentes, they show that petitioner was accepted by the private respondents as Inocentes legitimate son ante litem motam. Lourdes denials of these pictures are hollow and evasive. While she admitted that Exhibit B shows her holding Clarita Trinidad, the petitioners daughter, she demurred that she did so only because she was requested to carry the child before she was baptized. [29] When shown Exhibit A, she recognized her late brother -- but not petitioner, his wife and the couples children -- slyly explaining that she could not clearly see because of an alleged eye defect.[30] Although a baptismal certificate is indeed not a conclusive proof of filiation, it is one of the other means allowed under the Rules of Court and special laws to show pedigree, as this Court ruled in Mendoza vs. Court of Appeals:[31] What both the trial court and the respondent court did not take into account is that an illegitimate child is allowed to establish his claimed filiation by any other means allowed by the Rules of Court and special laws, according to the Civil Code, or by evidence of proof in his favor that the defendant is her father, according to the Family Code. Such evidence may consist of his baptismal certificate, a judicial admission, a family Bible in which his name has been entered, common reputation respecting his pedigree, admission by silence, the testimony of witnesses, and other kinds of proof admissible under Rule 130 of the Rules of Court. [Justice Alicia Sempio-Diy, Handbook on the Family Code of the Phil. 1988 ed., p. 246] Concededly, because Gerardo was not shown to be a member of the Trinidad family by either consanguinity or affinity,[32] her testimony does not constitute family reputation regarding pedigree. Hence, it cannot, by itself, be used to establish petitioners legitimacy. Be that as it may, the totality of petitioners positive evidence clearly preponderates over private respondents self-serving negations. In sum, private respondents thesis is that Inocentes died unwed and without issue in March 1941. Private respondents witness, Pedro Briones, testified that Inocentes died in 1940 and was buried in the estate of the Trinidads, because nobody was willing to carry the coffin to the cemetery in Kalibo, which was then occupied by the Japanese forces. His testimony, however, is far from credible because he stayed with the Trinidads for only three months, and his answers on direct examination were noncommittal and evasive:[33] Q: At the time of his death, can you tell the Court if this Inocentes Trinidad was married or not? A: Not married. Q: A: Q: A: In 1940 at the time of death of Inocentes Trinidad, where were you residing? I was staying with them. When you said them, to whom are you referring to [sic]? My aunt Nanay Taya, Anastacia. xxx Q: xxx xxx

Will you please tell the Court for how long did you stay with your aunt Anastacia Trinidad and his children before 1940?

A: Q: A: Q: A: Q: A: Q: A: Q: A:

For only three months. Now, you said at the time of his death, Inocentes Trinidad was single. Do you know if he had cohabited with anybody before his death? [T]hat I do not know. You know a person by the name of Felicidad Molato? No, sir. Can you recall if during the lifetime of Inocentes Trinidad if you have known of anybody with whom he has lived as husband and wife? I could not recall because I was then in Manila working. After the war, do you remember having gone back to the house of your aunt Anastacia at Tigayon, Kalibo, Aklan? Yes, sir, How often did you go to the house of your aunt? Every Sunday. xxx xxx xxx

Q: A: Q: A:

You know the plaintiff Arturio Trinidad? I do not know him. After the death of Inocentes Trinidad, do you know if there was anybody who has stayed with the defendants who claimed to be a son of Inocentes Trinidad? I do not know about that.

Beatriz Sayon, the other witness of private respondent, testified that, when the Japanese occupied Kalibo in 1941, her father brought Inocentes from Manila to Tigayon because he was sick. Inocentes stayed with their grandmother, Eugenia Roco Trinidad, and died single and without issue in March 1941, one and a half months after his return to Tigayon. She knew Felicidad Molato, who was also a resident of Tigayon, but denied that Felicidad was ever married to Inocentes. [34] Taking judicial notice that World War II did not start until December 7, 1941 with the bombing of Pearl Harbor in Hawaii, the trial court was not convinced that Inocentes died in March 1941. [35] The Japanese forces occupied Manila only on January 2, 1942; [36] thus, it stands to reason that Aklan was not occupied until then. It was only then that local residents were unwilling to bury their dead in the cemetery in Kalibo, because of the Japanese soldiers who were roaming around the area. [37] Furthermore, petitioner consistently used Inocentes surname (Trinidad) without objection from private respondents -- a presumptive proof of his status as Inocentes legitimate child. [38] Preponderant evidence means that, as a whole, the evidence adduced by one side outweighs that of the adverse party.[39] Compared to the detailed (even if awkwardly written) ruling of the trial court, Respondent Courts holding that petitioner failed to prove his legitimate filiation to Inocentes is unconvincing. In determining where the preponderance of evidence lies, a trial court may consider all the facts and circumstances of the case, including the witnesses manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts, the probability or improbability of their testimony, their interest or want thereof, and their personal credibility. [40] Applying this rule, the trial court significantly and convincingly held that the weight of evidence was in petitioners favor. It declared: xxx [O]ne thing sure is the fact that plaintiff had lived with defendants enjoying the status of being their nephew xxx before plaintiff [had] gotten married and had a family of his own where later on he started demanding for the partition of the share of his father, Inocentes. The fact that plaintiff had so lived with the defendants xxx is shown by the alleged family pictures, Exhibits A & B. These family pictures were taken at a time when plaintiff had not broached the idea of getting his fathers share. xxxx His demand for the partition of the share of his father provoked the ire of the defendants, thus, they disowned him as their nephew. xxxx In this case, the plaintiff enjoyed

the continuous possession of a status of the child of the alleged father by the direct acts of the defendants themselves, which status was only broken when plaintiff demanded for the partition xxx as he was already having a family of his own. xxxx. However, the disowning by the defendant [private respondent herein], Lourdes Trinidad, of the plaintiff [petitioner herein] being her nephew is offset by the preponderance of evidence, among them the testimony of witness, Jovita Gerardo, who is the barrio captain. This witness was already 77 years old at the time she testified. Said witness had no reason to favor the plaintiff. She had been a PTA officer and the court sized her up as a civic minded person. She has nothing to gain in this case as compared to the witness for the defendants who are either cousin or nephew of Lourdes Trinidad who stands to gain in the case for defendant, Lourdes Trinidad, being already 75 years old, has no husband nor children. [41] Doctrinally, a collateral attack on filiation is not permitted. [42] Rather than rely on this axiom, petitioner chose to present evidence of his filiation and of his parents marriage. Hence, there is no more need to rule on the application of this doctrine to petitioners cause.

Third Issue: No Acquisitive Prescription Respondent Court ruled that, because acquisitive prescription sets in when one of the interested parties openly and adversely occupies the property without recognizing the co-ownership, and because private respondents had been in possession -- in the concept of owners -- of the parcels of land in issue since Patricio died in 1940, they acquired ownership of these parcels. The Court disagrees. Private respondents have not acquired ownership of the property in question by acquisitive prescription. In a co-ownership, the act of one benefits all the other co-owners, unless the former repudiates the co-ownership. [43] Thus, no prescription runs in favor of a co-owner or co-heir against his or her co-owners or co-heirs, so long as he or she expressly or impliedly recognizes the co-ownership. In this particular case, it is undisputed that, prior to the action for partition, petitioner, in the concept of a co-owner, was receiving from private respondents his share of the produce of the land in dispute. Until such time, recognition of the co-ownership by private respondents was beyond question. There is no evidence, either, of their repudiation, if any, of the co-ownership of petitioners father Inocentes over the land. Further, the titles of these pieces of land were still in their fathers name. Although private respondents had possessed these parcels openly since 1940 and had not shared with petitioner the produce of the land during the pendency of this case, still, they manifested no repudiation of the co-ownership. In Mariategui vs. Court of Appeals, the Court held:[44] x x x Corollarily, prescription does not run again private respondents with respect to the filing of the action for partition so long as the heirs for whose benefit prescription is invoked, have not expressly or impliedly repudiated the co-ownership. In the other words, prescription of an action for partition does not lie except when the co-ownership is properly repudiated by the co-owner (Del Banco vs. Intermediate Appellate Court, 156 SCRA 55 [1987] citing Jardin vs. Hollasco, 117 SCRA 532 [1982]). Otherwise stated, a co-owner cannot acquire by prescription the share of the other co-owners absent a clear repudiation of co-ownership duly communicated to the other co-owners (Mariano vs. De Vega, 148 SCRA 342 [1987]). Furthermore, an action to demand partition is imprescriptible and cannot be barred by laches (Del Banco vs. IAC, 156 SCRA 55 (1987). On the other hand, an action for partition may be seen to be at once an action for declaration of coownership and for segregation and conveyance of a determinate portion of the property involved (Roque vs. IAC, 165 SCRA 118 [1988]). Considering the foregoing, Respondent Court committed reversible error in holding that petitioners claim over the land in dispute was time-barred.

WHEREFORE, the petition is GRANTED and the assailed Decision and Resolution are REVERSED and SET ASIDE. The trial courts decision dated July 4, 1989 is REINSTATED. No costs. SO ORDERED. Davide, Jr., (Chairman), Bellosillo, Vitug, and Quisumbing, JJ., concur.

SECOND DIVISION

[G.R. No. 83598. March 7, 1997]

LEONCIA BALOGBOG and GAUDIOSO BALOGBOG, petitioners, vs. HONORABLE COURT OF APPEALS, RAMONITO BALOGBOG and GENEROSO BALOGBOG, respondents. DECISION MENDOZA, J.:

This is a petition for review of the decision [1] of the Court of Appeals, affirming the decision of the Court of First Instance of Cebu City (Branch IX), declaring private respondents heirs of the deceased Basilio and Genoveva Balogbog entitled to inherit from them. The facts are as follows. Petitioners Leoncia and Gaudioso Balogbog are the children of Basilio Balogbog and Genoveva Arnibal who died intestate in 1951 and 1961, respectively. They had an older brother, Gavino, but he died in 1935, predeceasing their parents. In 1968, private respondents Ramonito and Generoso Balogbog brought an action for partition and accounting against petitioners, claiming that they were the legitimate children of Gavino by Catalina Ubas and that, as such, they were entitled to the one-third share of Gavino in the estate of their grandparents. In their answer, petitioners denied knowing private respondents. They alleged that their brother Gavino died single and without issue in their parents residence at Tag-amakan, Asturias, Cebu. In the beginning they claimed that the properties of the estate had been sold to them by their mother when she was still alive, but they later withdrew this allegation. Private respondents presented Priscilo Y. Trazo, [2] then 81 years old, mayor of the municipality of Asturias from 1928 to 1934, who testified that he knew Gavino and Catalina to be husband and wife and Ramonito to be their first child. On crossexamination, Trazo explained that he knew Gavino and Catalina because they performed at his campaign rallies, Catalina as balitaw dancer and Gavino Balogbog as her guitarist. Trazo said he attended the wedding of Gavino and Catalina sometime in 1929, in which Rev. Father Emiliano Jomao-as officiated and Egmidio Manuel, then a municipal councilor, acted as one of the witnesses. The second witness presented was Matias Pogoy, [3] a family friend of private respondents, who testified that private respondents are the children of Gavino and Catalina. According to him, the wedding of Gavino and Catalina was solemnized in the Catholic Church of Asturias, Cebu and that he knew this because he attended their wedding and was in fact asked by Gavino to accompany Catalina and carry her wedding dress from her residence in Camanaol to the poblacion of Asturias before the wedding day. He testified that Gavino died in 1935 in his residence at Obogon, Balamban, Cebu, in the presence of his wife. (This contradicts petitioners claim made in their answer that Gavino died in the ancestral house at Tag-amakan, Asturias.) Pogoy said he was a carpenter and he was the one who had made the coffin of Gavino. He also made the coffin of the couples son, Petronilo, who died when he was six. Catalina Ubas testified concerning her marriage to Gavino. [4] She testified that after the wedding, she was handed a receipt, presumably the marriage certificate, by Fr. Jomao-as, but it was burned during the war. She said that she and Gavino lived together in Obogon and begot three children, namely, Ramonito, Petronilo, and Generoso. Petronilo died after an illness at the age of six. On crossexamination, she stated that after the death of Gavino, she lived in common law relation with a man for a year and then they separated. Private respondents produced a certificate from the Office of the Local Civil Registrar (Exh. P) that the Register of Marriages did not have a record of the marriage of Gavino and Catalina, another certificate from the Office of the Treasurer (Exh. L) that there was no record of the birth of Ramonito in that office and, for this reason, the record must be presumed to have been lost or destroyed during the war, and a certificate by the Parish Priest of Asturias that there was likewise no record of birth of Ramonito in the church, the records of which were either lost or destroyed during the war. (Exh. M) On the other hand, as defendant below, petitioner Leoncia Balogbog testified [5] that Gavino died single at the family residence in Asturias. She denied that her brother had any legitimate children and stated that she did not know private respondents before this case was filed. She obtained a certificate (Exh. 10) from the Local Civil Registrar of Asturias to the effect that that office did not have a record of the names of Gavino and Catalina. The certificate was prepared by Assistant Municipal Treasurer Juan Maranga, who testified that there was no record of the marriage of Gavino and Catalina in the Book of Marriages between 1925 to 1935.[6] Witness Jose Narvasa testified[7] that Gavino died single in 1935 and that Catalina lived with a certain Eleuterio Keriado after the war, although he did not know whether they were legally married. He

added, however, that Catalina had children by a man she had married before the war, although he did not know the names of the children. On crossexamination, Narvasa stated that Leoncia Balogbog, who requested him to testify, was also his bondsman in a criminal case filed by a certain Mr. Cuyos. Ramonito Balogbog was presented[8] to rebut Leoncia Balogbogs testimony. On June 15, 1973, the Court of First Instance of Cebu City rendered judgment for private respondents (plaintiffs below), ordering petitioners to render an accounting from 1960 until the finality of its judgment, to partition the estate and deliver to private respondents one-third of the estate of Basilio and Genoveva, and to pay attorneys fees and costs. Petitioners filed a motion for new trial and/or reconsideration, contending that the trial court erred in not giving weight to the certification of the Office of the Municipal Treasurer of Asturias (Exh. 10) to the effect that no marriage of Gavino and Catalina was recorded in the Book of Marriages for the years 19251935. Their motion was denied by the trial court, as was their second motion for new trial and/or reconsideration based on the church records of the parish of Asturias which did not contain the record of the alleged marriage in that church. On appeal, the Court of Appeals affirmed. It held that private respondents failed to overcome the legal presumption that a man and a woman deporting themselves as husband and wife are in fact married, that a child is presumed to be legitimate, and that things happen according to the ordinary course of nature and the ordinary habits of life.[9] Hence, this petition. We find no reversible error committed by the Court of Appeals. First. Petitioners contend that the marriage of Gavino and Catalina should have been proven in accordance with Arts. 53 and 54 of the Civil Code of 1889 because this was the law in force at the time the alleged marriage was celebrated. Art. 53 provides that marriages celebrated under the Civil Code of 1889 should be proven only by a certified copy of the memorandum in the Civil Registry, unless the books thereof have not been kept or have been lost, or unless they are questioned in the courts, in which case any other proof, such as that of the continuous possession by parents of the status of husband and wife, may be considered, provided that the registration of the birth of their children as their legitimate children is also submitted in evidence. This Court noted long ago, however, that Arts. 42 to 107 of the Civil Code of 1889 of Spain did not take effect, having been suspended by the Governor General of the Philippines shortly after the extension of that code to this country.[10]Consequently, Arts. 53 and 54 never came into force. Since this case was brought in the lower court in 1968, the existence of the marriage must be determined in accordance with the present Civil Code, which repealed the provisions of the former Civil Code, except as they related to vested rights,[11] and the rules on evidence. Under the Rules of Court, the presumption is that a man and a woman conducting themselves as husband and wife are legally married. [12] This presumption may be rebutted only by cogent proof to the contrary. [13] In this case, petitioners claim that the certification presented by private respondents (to the effect that the record of the marriage had been lost or destroyed during the war) was belied by the production of the Book of Marriages by the assistant municipal treasurer of Asturias. Petitioners argue that this book does not contain any entry pertaining to the alleged marriage of private respondents parents. This contention has no merit. In Pugeda v. Trias,[14] the defendants, who questioned the marriage of the plaintiffs, produced a photostatic copy of the record of marriages of the Municipality of Rosario, Cavite for the month of January, 1916, to show that there was no record of the alleged marriage. Nonetheless, evidence consisting of the testimonies of witnesses was held competent to prove the marriage. Indeed, although a marriage contract is considered primary evidence of marriage, [15] the failure to present it is not proof that no marriage took place. Other evidence may be presented to prove marriage. [16] Here, private respondents proved, through testimonial evidence, that Gavino and Catalina were married in 1929; that they had three children, one of whom died in infancy; that their marriage subsisted until 1935 when Gavino died; and that their children, private respondents herein, were recognized by Gavinos family and by the public as the legitimate children of Gavino.

Neither is there merit in the argument that the existence of the marriage cannot be presumed because there was no evidence showing in particular that Gavino and Catalina, in the presence of two witnesses, declared that they were taking each other as husband and wife. [17] An exchange of vows can be presumed to have been made from the testimonies of the witnesses who state that a wedding took place, since the very purpose for having a wedding is to exchange vows of marital commitment. It would indeed be unusual to have a wedding without an exchange of vows and quite unnatural for people not to notice its absence. The law favors the validity of marriage, because the State is interested in the preservation of the family and the sanctity of the family is a matter of constitutional concern. As stated in Adong v. Cheong Seng Gee:[18] The basis of human society throughout the civilized world is that of marriage. Marriage in this jurisdiction is not only a civil contract, but it is a new relation, an institution in the maintenance of which the public is deeply interested. Consequently, every intendment of the law leans toward legalizing matrimony. Persons dwelling together in apparent matrimony are presumed, in the absence of any counter-presumption or evidence special to the case, to be in fact married. The reason is that such is the common order of society, and if the parties were not what they thus hold themselves out as being, they would be living in the constant violation of decency and of law. A presumption established by our Code of Civil Procedure is that a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage. (Sec. 334, No. 28) Semper praesumitur pro matrimonio Always presume marriage. (U.S. vs. Villafuerte and Rabano [1905], 4 Phil., 476; Son Cui vs. Guepangco, supra; U.S. vs. Memoracion and Uri [1916], 34 Phil., 633; Teter vs. Teter [1884], 101 Ind., 129.) Second. Petitioners contend that private respondents reliance solely on testimonial evidence to support their claim that private respondents had been in the continuous possession of the status of legitimate children is contrary to Art. 265 of the Civil Code which provides that such status shall be proven by the record of birth in the Civil Register, by an authentic document or by final judgment. But in accordance with Arts. 266 and 267, in the absence of titles indicated in Art. 265, the filiation of children may be proven by continuous possession of the status of a legitimate child and by any other means allowed by the Rules of Court or special laws. Thus the Civil Code provides: ART. 266. In the absence of the titles indicated in the preceding article, the filiation shall be proved by the continuous possession of status of a legitimate child ART. 267. In the absence of a record of birth, authentic document, final judgment or possession of status, legitimate filiation may be proved by any other means allowed by the Rules of Court and special laws. Petitioners contend that there is no justification for presenting testimonies as to the possession by private respondents of the status of legitimate children because the Book of Marriages for the years 1928-1929 is available. What is in issue, however, is not the marriage of Gavino and Catalina but the filiation of private respondents as their children. The marriage of Gavino and Catalina has already been shown in the preceding discussion. The treasurer of Asturias, Cebu certified that the records of birth of that municipality for the year 1930 could not be found, presumably because they were lost or destroyed during the war (Exh. L). But Matias Pogoy testified that Gavino and Catalina begot three children, one of whom, Petronilo, died at the age of six. Catalina testified that private respondents Ramonito and Generoso are her children by Gavino Balogbog. That private respondents are the children of Gavino and Catalina Balogbog cannot therefore be doubted. Moreover, the evidence in the record shows that petitioner Gaudioso Balogbog admitted to the police of Balamban, Cebu that Ramonito is his nephew. As the Court of Appeals found:

Ironically, it is appellant Gaudioso himself who supplies the clincher that tips the balance in favor of the appellees. In an investigation before the Police Investigating Committee of Balamban, Cebu, held on March 8, 1968, conducted for the purpose of inquiring into a complaint filed by Ramonito against a patrolman of the Balamban police force, Gaudioso testified that the complainant in that administrative case is his nephew. Excerpts from the transcript of the proceedings conducted on that date (Exhs. N, N-1, N-2, N-3 and N-4) read: Atty. Q.A.Q.A.Q.A.- Yes. Q.- Do you mean to say that you are close to him? A.Yes. We are close. Kiamco - May it please this investigative body. Do you know the complainant in this Administrative Case No. 1? Yes I know. Why do you know him? I know because he is my nephew. Are you in good terms with your nephew, the complainant?

Q.- Why do you say you are close? A.- We are close because aside from the fact that he is my nephew we were also leaving (sic) in the same house in Butuan City, and I even barrow (sic) from him money in the amount of P300.00, when I return to Balamban, Cebu. xxx Q.xxx xxx

Why is Ramonito Balogbog your nephew?

A.- Because he is the son of my elder brother. This admission of relationship is admissible against Gaudioso although made in another case. It is considered as a reliable declaration against interest (Rule 130, Section 22). Significantly, Gaudioso did not try to offer any explanation to blunt the effects of that declaration. He did not even testify during the trial. Such silence can only mean that Ramonito is indeed the nephew of Gaudioso, the former being the son of Gavino. WHEREFORE, the decision appealed from is AFFIRMED. SO ORDERED. Regalado, (Chairman), Romero, Puno, and Torres, Jr., JJ., concur SECOND DIVISION

[A.M. No. MTJ-96-1088. July 19, 1996]

RODOLFO G. NAVARRO, complainant, vs. JUDGE HERNANDO C. DOMAGTOY, respondent. DECISION

ROMERO, J.: The complainant in this administrative case is the Municipal Mayor of Dapa, Surigao del Norte, Rodolfo G. Navarro. He has submitted evidence in relation to two specific acts committed by respondent Municipal Circuit Trial Court Judge Hernando Domagtoy, which, he contends, exhibits gross misconduct as well as inefficiency in office and ignorance of the law. First, on September 27, 1994, respondent judge solemnized the wedding between Gaspar A. Tagadan and Arlyn F. Borga, despite the knowledge that the groom is merely separated from his first wife. Second, it is alleged that he performed a marriage ceremony between Floriano Dador Sumaylo and Gemma G. del Rosario outside his court's jurisdiction on October 27, 1994. Respondent judge holds office and has jurisdiction in the Municipal Circuit Trial Court of Sta. Monica-Burgos, Surigao del Norte. The wedding was solemnized at the respondent judge's residence in the municipality of Dapa, which does not fall within his jurisdictional area of the municipalities of Sta. Monica and Burgos, located some 40 to 45 kilometers away from the municipality of Dapa, Surigao del Norte. In his letter-comment to the Office of the Court Administrator, respondent judge avers that the office and name of the Municipal Mayor of Dapa have been used by someone else, who, as the mayor's "lackey," is overly concerned with his actuations both as judge and as a private person. The same person had earlier filed Administrative Matter No. 94-980-MTC, which was dismissed for lack of merit on September 15, 1994, and Administrative Matter No. OCA-IPI-95-16, "Antonio Adapon v. Judge Hernando C. Domagtoy," which is still pending. In relation to the charges against him, respondent judge seeks exculpation from his act of having solemnized the marriage between Gaspar Tagadan, a married man separated from his wife, and Arlyn F. Borga by stating that he merely relied on the Affidavit issued by the Municipal Trial Judge of Basey, Samar, confirming the fact that Mr. Tagadan and his first wife have not seen each other for almost seven years.[1] With respect to the second charge, he maintains that in solemnizing the marriage between Sumaylo and del Rosario, he did not violate Article 7, paragraph 1 of the Family Code which states that: "Marriage may be solemnized by: (1) Any incumbent member of the judiciary within the court's jurisdiction; and that Article 8 thereof applies to the case in question. The complaint was not referred, as is usual, for investigation, since the pleadings submitted were considered sufficient for a resolution of the case.[2] Since the countercharges of sinister motives and fraud on the part of complainant have not been sufficiently proven, they will not be dwelt upon. The acts complained of and respondent judge's answer thereto will suffice and can be objectively assessed by themselves to prove the latter's malfeasance. The certified true copy of the marriage contract between Gaspar Tagadan and Arlyn Borga states that Tagadan's civil status is "separated." Despite this declaration, the wedding ceremony was solemnized by respondent judge. He presented in evidence a joint affidavit by Maurecio A. Labado, Sr. and Eugenio Bullecer, subscribed and sworn to before Judge Demosthenes C. Duquilla, Municipal Trial Judge of Basey, Samar.[3] The affidavit was not issued by the latter judge, as claimed by respondent judge, but merely acknowledged before him. In their affidavit, the affiants stated that they knew Gaspar Tagadan to have been civilly married to Ida D. Pearanda in September 1983; that after thirteen years of cohabitation and having borne five children, Ida Pearanda left the conjugal dwelling in Valencia, Bukidnon and that she has not returned nor been heard of for almost seven years, thereby giving rise to the presumption that she is already dead. In effect, Judge Domagtoy maintains that the aforementioned joint affidavit is sufficient proof of Ida Pearanda's presumptive death, and ample reason for him to proceed with the marriage ceremony. We do not agree. Article 41 of the Family Code expressly provides:

"A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Articles 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse." (Emphasis added.) There is nothing ambiguous or difficult to comprehend in this provision. In fact, the law is clear and simple. Even if the spouse present has a well-founded belief that the absent spouse was already dead, a summary proceeding for the declaration of presumptive death is necessary in order to contract a subsequent marriage, a mandatory requirement which has been precisely incorporated into the Family Code to discourage subsequent marriages where it is not proven that the previous marriage has been dissolved or a missing spouse is factually or presumptively dead, in accordance with pertinent provisions of law. In the case at bar, Gaspar Tagadan did not institute a summary proceeding for the declaration of his first wife's presumptive death. Absent this judicial declaration, he remains married to Ida Pearanda. Whether wittingly, or unwittingly, it was manifest error on the part of respondent judge to have accepted the joint affidavit submitted by the groom. Such neglect or ignorance of the law has resulted in a bigamous, and therefore void, marriage. Under Article 35 of the Family Code, "The following marriage shall be void from the beginning: (4) Those bigamous x x x marriages not falling under Article 41." The second issue involves the solemnization of a marriage ceremony outside the court's jurisdiction, covered by Articles 7 and 8 of the Family Code, thus: "Art. 7. (1) Marriage may be solemnized by:

Any incumbent member of the judiciary within the court's jurisdiction; xxx xxx xxx (Emphasis supplied.)

Art. 8. The marriage shall be solemnized publicly in the chambers of the judge or in open court, in the church, chapel or temple, or in the office of the consul-general, consul or vice-consul, as the case may be, and not elsewhere, except in cases of marriages contracted on the point of death or in remote places in accordance with Article 29 of this Code, or where both parties request the solemnizing officer in writing in which case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect." Respondent judge points to Article 8 and its exceptions as the justifications for his having solemnized the marriage between Floriano Sumaylo and Gemma del Rosario outside of his court's jurisdiction. As the aforequoted provision states, a marriage can be held outside of the judge's chambers or courtroom only in the following instances: (1) at the point of death, (2) in remote places in accordance with Article 29 or (3) upon request of both parties in writing in a sworn statement to this effect. There is no pretense that either Sumaylo or del Rosario was at the point of death or in a remote place. Moreover, the written request presented addressed to the respondent judge was made by only one party, Gemma del Rosario.
[4]

More importantly, the elementary principle underlying this provision is the authority of the solemnizing judge. Under Article 3, one of the formal requisites of marriage is the "authority of the solemnizing officer." Under Article 7, marriage may be solemnized by, among others, "any incumbent

member of the judiciary within the court's jurisdiction." Article 8, which is a directory provision, refers only to the venue of the marriage ceremony and does not alter or qualify the authority of the solemnizing officer as provided in the preceding provision. Non-compliance herewith will not invalidate the marriage. A priest who is commissioned and allowed by his local ordinary to marry the faithful, is authorized to do so only within the area of the diocese or place allowed by his Bishop. An appellate court Justice or a Justice of this Court has jurisdiction over the entire Philippines to solemnize marriages, regardless of the venue, as long as the requisites of the law are complied with. However, judges who are appointed to specific jurisdictions, may officiate in weddings only within said areas and not beyond. Where a judge solemnizes a marriage outside his court's jurisdiction, there is a resultant irregularity in the formal requisite laid down in Article 3, which while it may not affect the validity of the marriage, may subject the officiating official to administrative liability.[5] Inasmuch as respondent judge's jurisdiction covers the municipalities of Sta. Monica and Burgos, he was not clothed with authority to solemnize a marriage in the municipality of Dapa, Surigao del Norte. By citing Article 8 and the exceptions therein as grounds for the exercise of his misplaced authority, respondent judge again demonstrated a lack of understanding of the basic principles of civil law. Accordingly, the Court finds respondent to have acted in gross ignorance of the law. The legal principles applicable in the cases brought to our attention are elementary and uncomplicated, prompting us to conclude that respondent's failure to apply them is due to a lack of comprehension of the law. The judiciary should be composed of persons who, if not experts, are at least, proficient in the law they are sworn to apply, more than the ordinary laymen. They should be skilled and competent in understanding and applying the law. It is imperative that they be conversant with basic legal principles like the ones involved in instant case.[6] It is not too much to expect them to know and apply the law intelligently.[7] Otherwise, the system of justice rests on a shaky foundation indeed, compounded by the errors committed by those not learned in the law. While magistrates may at times make mistakes in judgment, for which they are not penalized, the respondent judge exhibited ignorance of elementary provisions of law, in an area which has greatly prejudiced the status of married persons. The marriage between Gaspar Tagadan and Arlyn Borga is considered bigamous and void, there being a subsisting marriage between Gaspar Tagadan and Ida Pearanda. The Office of the Court Administrator recommends, in its Memorandum to the Court, a six-month suspension and a stern warning that a repetition of the same or similar acts will be dealt with more severely. Considering that one of the marriages in question resulted in a bigamous union and therefore void, and the other lacked the necessary authority of respondent judge, the Court adopts said recommendation. Respondent is advised to be more circumspect in applying the law and to cultivate a deeper understanding of the law. IN VIEW OF THE FOREGOING, respondent Judge Hernando C. Domagtoy is hereby SUSPENDED for a period of six (6) months and given a STERN WARNING that a repetition of the same or similar acts will be dealt with more severely. SO ORDERED. Regalado (Chairman), Puno, Mendoza, and Torres, Jr., JJ., concur.

SECOND DIVISION

[G.R. No. 116668. July 28, 1997]

ERLINDA A. AGAPAY, petitioner, vs. CARLINA (CORNELIA) V. PALANG and HERMINIA P. DELA CRUZ, respondents. DECISION ROMERO, J.: Before us is a petition for review of the decision of the Court of Appeals in CA-G.R. CV No. 24199 entitled Erlinda Agapay v. Carlina (Cornelia) Palang and Herminia P. Dela Cruz dated June 22, 1994

involving the ownership of two parcels of land acquired during the cohabitation of petitioner and private respondents legitimate spouse. Miguel Palang contracted his first marriage on July 16, 1949 when he took private respondent Carlina (or Cornelia) Vallesterol as a wife at the Pozorrubio Roman Catholic Church in Pangasinan. A few months after the wedding, in October 1949, he left to work in Hawaii. Miguel and Carlinas only child, Herminia Palang, was born on May 12, 1950. Miguel returned in 1954 for a year. His next visit to the Philippines was in 1964 and during the entire duration of his year-long sojourn he stayed in Zambales with his brother, not in Pangasinan with his wife and child. The trial court found evidence that as early as 1957, Miguel had attempted to divorce Carlina in Hawaii.[1] When he returned for good in 1972, he refused to live with private respondents, but stayed alone in a house in Pozorrubio, Pangasinan. On July 15, 1973, the then sixty-three-year-old Miguel contracted his second marriage with nineteenyear-old Erlinda Agapay, herein petitioner. [2] Two months earlier, on May 17, 1973, Miguel and Erlinda, as evidenced by the Deed of Sale, jointly purchased a parcel of agricultural land located at San Felipe, Binalonan, Pangasinan with an area of 10,080 square meters. Consequently, Transfer Certificate of Title No. 101736 covering said rice land was issued in their names. A house and lot in Binalonan, Pangasinan was likewise purchased on September 23, 1975, allegedly by Erlinda as the sole vendee. TCT No. 143120 covering said property was later issued in her name. On October 30, 1975, Miguel and Cornelia Palang executed a Deed of Donation as a form of compromise agreement to settle and end a case filed by the latter. [3] The parties therein agreed to donate their conjugal property consisting of six parcels of land to their only child, Herminia Palang. [4] Miguel and Erlindas cohabitation produced a son, Kristopher A. Palang, born on December 6, 1977. In 1979, Miguel and Erlinda were convicted of Concubinage upon Carlinas complaint. [5] Two years later, on February 15, 1981, Miguel died. On July 11, 1981, Carlina Palang and her daughter Herminia Palang de la Cruz, herein private respondents, instituted the case at bar, an action for recovery of ownership and possession with damages against petitioner before the Regional Trial Court in Urdaneta, Pangasinan (Civil Case No. U4265). Private respondents sought to get back the riceland and the house and lot both located at Binalonan, Pangasinan allegedly purchased by Miguel during his cohabitation with petitioner. Petitioner, as defendant below, contended that while the riceland covered by TCT No. 101736 is registered in their names (Miguel and Erlinda), she had already given her half of the property to their son Kristopher Palang. She added that the house and lot covered by TCT No. 143120 is her sole property, having bought the same with her own money. Erlinda added that Carlina is precluded from claiming aforesaid properties since the latter had already donated their conjugal estate to Herminia. After trial on the merits, the lower court rendered its decision on June 30, 1989 dismissing the complaint after declaring that there was little evidence to prove that the subject properties pertained to the conjugal property of Carlina and Miguel Palang. The lower court went on to provide for the intestate shares of the parties, particularly of Kristopher Palang, Miguels illegitimate son. The dispositive portion of the decision reads: WHEREFORE, premises considered, judgment is hereby rendered1) Dismissing the complaint, with costs against plaintiffs;

2) Confirming the ownership of defendant Erlinda Agapay of the residential lot located at Poblacion, Binalonan, Pangasinan, as evidenced by TCT No. 143120, Lot 290-B including the old house standing therein;

3) Confirming the ownership of one-half (1/2) portion of that piece of agricultural land situated at Balisa, San Felipe, Binalonan, Pangasinan, consisting of 10,080 square meters and as evidenced by TCT No. 101736, Lot 1123-A to Erlinda Agapay; 4) Adjudicating to Kristopher Palang as his inheritance from his deceased father, Miguel Palang, the one-half (1/2) of the agricultural land situated at Balisa, San Felipe, Binalonan, Pangasinan, under TCT No. 101736 in the name of Miguel Palang, provided that the former (Kristopher) executes, within 15 days after this decision becomes final and executory, a quit-claim forever renouncing any claims to annul/reduce the donation to Herminia Palang de la Cruz of all conjugal properties of her parents, Miguel Palang and Carlina Vallesterol Palang, dated October 30, 1975, otherwise, the estate of deceased Miguel Palang will have to be settled in another separate action; 5) No pronouncement as to damages and attorneys fees.

SO ORDERED.[6] On appeal, respondent court reversed the trial courts decision. The Court of Appeals rendered its decision on July 22, 1994 with the following dispositive portion: WHEREFORE, PREMISES CONSIDERED, the appealed decision is hereby REVERSED and another one entered: 1. Declaring plaintiffs-appellants the owners of the properties in question;

2. Ordering defendant-appellee to vacate and deliver the properties in question to herein plaintiffsappellants; 3. Ordering the Register of Deeds of Pangasinan to cancel Transfer Certificate of Title Nos. 143120 and 101736 and to issue in lieu thereof another certificate of title in the name of plaintiffsappellants. No pronouncement as to costs.[7] Hence, this petition. Petitioner claims that the Court of Appeals erred in not sustaining the validity of two deeds of absolute sale covering the riceland and the house and lot, the first in favor of Miguel Palang and Erlinda Agapay and the second, in favor of Erlinda Agapay alone. Second, petitioner contends that respondent appellate court erred in not declaring Kristopher A. Palang as Miguel Palangs illegitimate son and thus entitled to inherit from Miguels estate. Third, respondent court erred, according to petitioner, in not finding that there is sufficient pleading and evidence that Kristoffer A. Palang or Christopher A. Palang should be considered as party-defendant in Civil Case No. U-4625 before the trial court and in CA-G.R. No. 24199.[8] After studying the merits of the instant case, as well as the pertinent provisions of law and jurisprudence, the Court denies the petition and affirms the questioned decision of the Court of Appeals. The first and principal issue is the ownership of the two pieces of property subject of this action. Petitioner assails the validity of the deeds of conveyance over the same parcels of land. There is no dispute that the transfers of ownership from the original owners of the riceland and the house and lot, Corazon Ilomin and the spouses Cespedes, respectively, were valid. The sale of the riceland on May 17, 1973, was made in favor of Miguel and Erlinda. The provision of law applicable here is Article 148 of the Family Code providing for cases of cohabitation when a man and a woman who are notcapacitated to marry each other live exclusively with each other as husband and

wife without the benefit of marriage or under a void marriage. While Miguel and Erlinda contracted marriage on July 15, 1973, said union was patently void because the earlier marriage of Miguel and Carlina was still susbsisting and unaffected by the latters de facto separation. Under Article 148, only the properties acquired by both of the parties through their actual joint contribution of money, property or industry shall be owned by them in common in proportion to their respective contributions. It must be stressed that actual contribution is required by this provision, in contrast to Article 147 which states that efforts in the care and maintenance of the family and household, are regarded as contributions to the acquisition of common property by one who has no salary or income or work or industry. If the actual contribution of the party is not proved, there will be no co-ownership and no presumption of equal shares.[9] In the case at bar, Erlinda tried to establish by her testimony that she is engaged in the business of buy and sell and had a sari-sari store[10] but failed to persuade us that she actually contributed money to buy the subject riceland. Worth noting is the fact that on the date of conveyance, May 17, 1973, petitioner was only around twenty years of age and Miguel Palang was already sixty-four and a pensioner of the U.S. Government. Considering her youthfulness, it is unrealistic to conclude that in 1973 she contributed P3,750.00 as her share in the purchase price of subject property, [11] there being no proof of the same. Petitioner now claims that the riceland was bought two months before Miguel and Erlinda actually cohabited. In the nature of an afterthought, said added assertion was intended to exclude their case from the operation of Article 148 of the Family Code. Proof of the precise date when they commenced their adulterous cohabitation not having been adduced, we cannot state definitively that the riceland was purchased even before they started living together. In any case, even assuming that the subject property was bought before cohabitation, the rules of co-ownership would still apply and proof of actual contribution would still be essential. Since petitioner failed to prove that she contributed money to the purchase price of the riceland in Binalonan, Pangasinan, we find no basis to justify her co-ownership with Miguel over the same. Consequently, the riceland should, as correctly held by the Court of Appeals, revert to the conjugal partnership property of the deceased Miguel and private respondent Carlina Palang. Furthermore, it is immaterial that Miguel and Carlina previously agreed to donate their conjugal property in favor of their daughter Herminia in 1975. The trial court erred in holding that the decision adopting their compromise agreement in effect partakes the nature of judicial confirmation of the separation of property between spouses and the termination of the conjugal partnership. [12] Separation of property between spouses during the marriage shall not take place except by judicial order or without judicial conferment when there is an express stipulation in the marriage settlements. [13] The judgment which resulted from the parties compromise was not specifically and expressly for separation of property and should not be so inferred. With respect to the house and lot, Erlinda allegedly bought the same for P20,000.00 on September 23, 1975 when she was only 22 years old. The testimony of the notary public who prepared the deed of conveyance for the property reveals the falsehood of this claim. Atty. Constantino Sagun testified that Miguel Palang provided the money for the purchase price and directed that Erlindas name alone be placed as the vendee.[14] The transaction was properly a donation made by Miguel to Erlinda, but one which was clearly void and inexistent by express provision of law because it was made between persons guilty of adultery or concubinage at the time of the donation, under Article 739 of the Civil Code. Moreover, Article 87 of the Family Code expressly provides that the prohibition against donations between spouses now applies to donations between persons living together as husband and wife without a valid marriage, [15] for otherwise, the condition of those who incurred guilt would turn out to be better than those in legal union. [16] The second issue concerning Kristopher Palangs status and claim as an illegitimate son and heir to Miguels estate is here resolved in favor of respondent courts correct assessment that the trial court erred in making pronouncements regarding Kristophers heirship and filiation inasmuch as questions as to who are the heirs of the decedent, proof of filiation of illegitimate children and the determination of the estate of

the latter and claims thereto should be ventilated in the proper probate court or in a special proceeding instituted for the purpose and cannot be adjudicated in the instant ordinary civil action which is for recovery of ownership and possession.[17] As regards the third issue, petitioner contends that Kristopher Palang should be considered as partydefendant in the case at bar following the trial courts decision which expressly found that Kristopher had not been impleaded as party defendant but theorized that he had submitted to the courts jurisdiction through his mother/guardian ad litem.[18] The trial court erred gravely. Kristopher, not having been impleaded, was, therefore, not a party to the case at bar. His mother, Erlinda, cannot be called his guardian ad litem for he was not involved in the case at bar. Petitioner adds that there is no need for Kristopher to file another action to prove that he is the illegitimate son of Miguel, in order to avoid multiplicity of suits.[19] Petitioners grave error has been discussed in the preceeding paragraph where the need for probate proceedings to resolve the settlement of Miguels estate and Kristophers successional rights has been pointed out. WHEREFORE, the instant petition is hereby DENIED. The questioned decision of the Court of Appeals is AFFIRMED. Costs against petitioner. SO ORDERED. Regalado, (Chairman), Puno, and Mendoza, JJ., concur. Torres, Jr., J., on leave.

SECOND DIVISION G.R. No. 155733 January 27, 2006

IN THE MATTER OF THE INTESTATE ESTATES OF THE DECEASED JOSEFA DELGADO AND GUILLERMO RUSTIA CARLOTA DELGADO VDA. DE DE LA ROSA and other HEIRS OF LUIS DELGADO, namely, HEIRS OF CONCHA VDA. DE AREVALO, HEIRS OF LUISA DELGADO VDA. DE DANAO, ANGELA DELGADO ARESPACOCHAGA, TERESA DELGADO PERLAS, CAROLINA DELGADO-ARESPACOCHAGA, RODOLFO DELGADO, BENJAMIN DELGADO, GLICERIA DELGADO and CLEOFAS DELGADO; and HEIRS OF GORGONIO DELGADO, namely, RAMON DELGADO CAMPO, CARLOS DELGADO CAMPO, CLARITA DELGADO CAMPO-REIZA, YOLANDA DELGADO ENCINAS, FELISA DELGADO CAMPO-ENCINAS and MELINDA DELGADO CAMPOMADARANG, Petitioners, vs. HEIRS OF MARCIANA RUSTIA VDA. DE DAMIAN, namely, GUILLERMO R. DAMIAN and JOSE R. DAMIAN; HEIRS OF HORTENCIA RUSTIA CRUZ, namely, TERESITA CRUZ-SISON, HORACIO R. CRUZ, JOSEFINA CRUZ-RODIL, AMELIA CRUZ-ENRIQUEZ and FIDEL R. CRUZ, JR.; HEIRS OF

ROMAN RUSTIA, SR., namely, JOSEFINA RUSTIA ALBANO, VIRGINIA RUSTIA PARAISO, ROMAN RUSTIA, JR., SERGIO RUSTIA, FRANCISCO RUSTIA, LETICIA RUSTIA-MIRANDA; and GUILLERMINA RUSTIA, as Oppositors;1 and GUILLERMA RUSTIA, as Intervenor,2 Respondents.3 DECISION CORONA, J.: In this petition for review on certiorari, petitioners seek to reinstate the May 11, 1990 decision of the Regional Trial Court (RTC) of Manila, Branch 55,4 in SP Case No. 97668, which was reversed and set aside by the Court of Appeals in its decision5 dated October 24, 2002. FACTS OF THE CASE This case concerns the settlement of the intestate estates of Guillermo Rustia and Josefa Delgado. 6 The main issue in this case is relatively simple: who, between petitioners and respondents, are the lawful heirs of the decedents. However, it is attended by several collateral issues that complicate its resolution. The claimants to the estates of Guillermo Rustia and Josefa Delgado may be divided into two groups: (1) the alleged heirs of Josefa Delgado, consisting of her half- and full-blood siblings, nephews and nieces, and grandnephews and grandnieces, and (2) the alleged heirs of Guillermo Rustia, particularly, his sisters,7 his nephews and nieces,8 his illegitimate child,9 and the de facto adopted child10 (ampunampunan) of the decedents. The alleged heirs of Josefa Delgado The deceased Josefa Delgado was the daughter of Felisa 11 Delgado by one Lucio Campo. Aside from Josefa, five other children were born to the couple, namely, Nazario, Edilberta, Jose, Jacoba, and Gorgonio, all surnamed Delgado. Felisa Delgado was never married to Lucio Campo, hence, Josefa and her full-blood siblings were all natural children of Felisa Delgado. However, Lucio Campo was not the first and only man in Felisa Delgados life. Before him was Ramon Osorio12with whom Felisa had a son, Luis Delgado. But, unlike her relationship with Lucio Campo which was admittedly one without the benefit of marriage, the legal status of Ramon Osorios and Felisa Delgados union is in dispute. The question of whether Felisa Delgado and Ramon Osorio ever got married is crucial to the claimants because the answer will determine whether their successional rights fall within the ambit of the rule against reciprocal intestate succession between legitimate and illegitimate relatives. 13 If Ramon Osorio and Felisa Delgado had been validly married, then their only child Luis Delgado was a legitimate halfblood brother of Josefa Delgado and therefore excluded from the latters intestate estate. He and his heirs would be barred by the principle of absolute separation between the legitimate and illegitimate families. Conversely, if the couple were never married, Luis Delgado and his heirs would be entitled to inherit from Josefa Delgados intestate estate, as they would all be within the illegitimate line. Petitioners allege that Ramon Osorio and Felisa Delgado were never married. In support thereof, they assert that no evidence was ever presented to establish it, not even so much as an allegation of the date or place of the alleged marriage. What is clear, however, is that Felisa retained the surname Delgado. So did Luis, her son with Ramon Osorio. Later on, when Luis got married, his Partida de Casamiento14 stated that he was "hijo natural de Felisa Delgado" (the natural child of Felisa Delgado),15 significantly omitting any mention of the name and other circumstances of his father. 16 Nevertheless, oppositors (now respondents) insist that the absence of a record of the alleged marriage did not necessarily mean that no marriage ever took place.

Josefa Delgado died on September 8, 1972 without a will. She was survived by Guillermo Rustia and some collateral relatives, the petitioners herein. Several months later, on June 15, 1973, Guillermo Rustia executed an affidavit of selfadjudication of the remaining properties comprising her estate. The marriage of Guillermo Rustia and Josefa Delgado Sometime in 1917, Guillermo Rustia proposed marriage to Josefa Delgado 17 but whether a marriage in fact took place is disputed. According to petitioners, the two eventually lived together as husband and wife but were never married. To prove their assertion, petitioners point out that no record of the contested marriage existed in the civil registry. Moreover, a baptismal certificate naming Josefa Delgado as one of the sponsors referred to her as "Seorita" or unmarried woman. The oppositors (respondents here), on the other hand, insist that the absence of a marriage certificate did not of necessity mean that no marriage transpired. They maintain that Guillermo Rustia and Josefa Delgado were married on June 3, 1919 and from then on lived together as husband and wife until the death of Josefa on September 8, 1972. During this period spanning more than half a century, they were known among their relatives and friends to have in fact been married. To support their proposition, oppositors presented the following pieces of evidence: 1. Certificate of Identity No. 9592 dated [December 1, 1944] issued to Mrs. Guillermo J. Rustia by Carlos P. Romulo, then Resident Commissioner to the United States of the Commonwealth of the Philippines; 2. Philippine Passport No. 4767 issued to Josefa D. Rustia on June 25, 1947; 3. Veterans Application for Pension or Compensation for Disability Resulting from Service in the Active Military or Naval Forces of the United States- Claim No. C-4, 004, 503 (VA Form 526) filed with the Veterans Administration of the United States of America by Dr. Guillermo J. Rustia wherein Dr. Guillermo J. Rustia himself [swore] to his marriage to Josefa Delgado in Manila on 3 June 1919;18 4. Titles to real properties in the name of Guillermo Rustia indicated that he was married to Josefa Delgado. The alleged heirs of Guillermo Rustia Guillermo Rustia and Josefa Delgado never had any children. With no children of their own, they took into their home the youngsters Guillermina Rustia Rustia and Nanie Rustia. These children, never legally adopted by the couple, were what was known in the local dialect as ampun-ampunan. During his life with Josefa, however, Guillermo Rustia did manage to father an illegitimate child, 19 the intervenor-respondent Guillerma Rustia, with one Amparo Sagarbarria. According to Guillerma, Guillermo Rustia treated her as his daughter, his own flesh and blood, and she enjoyed open and continuous possession of that status from her birth in 1920 until her fathers demise. In fact, Josefa Delgados obituary which was prepared by Guillermo Rustia, named the intervenor-respondent as one of their children. Also, her report card from the University of Santo Tomas identified Guillermo Rustia as her parent/guardian.20 Oppositors (respondents here) nonetheless posit that Guillerma Rustia has no interest in the intestate estate of Guillermo Rustia as she was never duly acknowledged as an illegitimate child. They contend that her right to compulsory acknowledgement prescribed when Guillermo died in 1974 and that she

cannot claim voluntary acknowledgement since the documents she presented were not the authentic writings prescribed by the new Civil Code.21 On January 7, 1974, more than a year after the death of Josefa Delgado, Guillermo Rustia filed a petition for the adoption22 of their ampun-ampunan Guillermina Rustia. He stated under oath "[t]hat he ha[d] no legitimate, legitimated, acknowledged natural children or natural children by legal fiction." 23 The petition was overtaken by his death on February 28, 1974. Like Josefa Delgado, Guillermo Rustia died without a will. He was survived by his sisters Marciana Rustia vda. deDamian and Hortencia Rustia-Cruz, and by the children of his predeceased brother Roman Rustia Sr., namely, Josefina Rustia Albano, Virginia Rustia Paraiso, Roman Rustia, Jr., Sergio Rustia, Francisco Rustia and Leticia Rustia Miranda.24 ANTECEDENT PROCEEDINGS On May 8, 1975, Luisa Delgado vda. de Danao, the daughter of Luis Delgado, filed the original petition for letters of administration of the intestate estates of the "spouses Josefa Delgado and Guillermo Rustia" with the RTC of Manila, Branch 55.25 This petition was opposed by the following: (1) the sisters of Guillermo Rustia, namely, Marciana Rustia vda. de Damian and Hortencia Rustia-Cruz;26 (2) the heirs of Guillermo Rustias late brother, Roman Rustia, Sr., and (3) the ampun-ampunan Guillermina Rustia Rustia. The opposition was grounded on the theory that Luisa Delgado vda. de Danao and the other claimants were barred under the law from inheriting from their illegitimate half-blood relative Josefa Delgado. In November of 1975, Guillerma Rustia filed a motion to intervene in the proceedings, claiming she was the only surviving descendant in the direct line of Guillermo Rustia. Despite the objections of the oppositors (respondents herein), the motion was granted. On April 3, 1978, the original petition for letters of administration was amended to state that Josefa Delgado and Guillermo Rustia were never married but had merely lived together as husband and wife. On January 24, 1980, oppositors (respondents herein) filed a motion to dismiss the petition in the RTC insofar as the estate of Guillermo Rustia was concerned. The motion was denied on the ground that the interests of the petitioners and the other claimants remained in issue and should be properly threshed out upon submission of evidence. On March 14, 1988, Carlota Delgado vda. de de la Rosa substituted for her sister, Luisa Delgado vda. de Danao, who had died on May 18, 1987. On May 11, 1990, the RTC appointed Carlota Delgado vda. de de la Rosa as administratrix of both estates.27 The dispositive portion of the decision read: WHEREFORE, in view of all the foregoing, petitioner and her co-claimants to the estate of the late Josefa Delgado listed in the Petitions, and enumerated elsewhere in this Decision, are hereby declared as the only legal heirs of the said Josefa Delgado who died intestate in the City of Manila on September 8, 1972, and entitled to partition the same among themselves in accordance with the proportions referred to in this Decision. Similarly, the intervenor Guillerma S. Rustia is hereby declared as the sole and only surviving heir of the late Dr. Guillermo Rustia, and thus, entitled to the entire estate of the said decedent, to the exclusion of the oppositors and the other parties hereto.

The Affidavit of Self-Adjudication of the estate of Josefa Delgado executed by the late Guillermo J. Rustia on June 15, 1973 is hereby SET ASIDE and declared of no force and effect. As the estates of both dece[d]ents have not as yet been settled, and their settlement [i s] considered consolidated in this proceeding in accordance with law, a single administrator therefor is both proper and necessary, and, as the petitioner Carlota Delgado Vda. de dela Rosa has established her right to the appointment as administratrix of the estates, the Court hereby APPOINTS her as the ADMINISTRATRIX of the intestate estate of the decedent JOSEFA DELGADO in relation to the estate of DR. GUILLERMO J. RUSTIA. Accordingly, let the corresponding LETTERS OF ADMINISTRATION issue to the petitioner CARLOTA DELGADO VDA. DE DE LA ROSA upon her filing of the requisite bond in the sum of FIVE HUNDRED THOUSAND PESOS (P500,000.00). Finally, oppositor GUILLERMINA RUSTIA RUSTIA is hereby ordered to cease and desist from her acts of administration of the subject estates, and is likewise ordered to turn over to the appointed administratix all her collections of the rentals and income due on the assets of the estates in question, including all documents, papers, records and titles pertaining to such estates to the petitioner and appointed administratix CARLOTA DELGADO VDA. DE DE LA ROSA, immediately upon receipt of this Decision. The same oppositor is hereby required to render an accounting of her actual administration of the estates in controversy within a period of sixty (60) days from receipt hereof. SO ORDERED.28 On May 20, 1990, oppositors filed an appeal which was denied on the ground that the record on appeal was not filed on time.29 They then filed a petition for certiorari and mandamus 30 which was dismissed by the Court of Appeals.31 However, on motion for reconsideration and after hearing the parties oral arguments, the Court of Appeals reversed itself and gave due course to oppositors appeal in the interest of substantial justice.32 In a petition for review to this Court, petitioners assailed the resolution of the Court of Appeals, on the ground that oppositors failure to file the record on appeal within the reglementary period was a jurisdictional defect which nullified the appeal. On October 10, 1997, this Court allowed the continuance of the appeal. The pertinent portion of our decision 33 read: As a rule, periods prescribed to do certain acts must be followed. However, under exceptional circumstances, a delay in the filing of an appeal may be excused on grounds of substantial justice. xxx xxx xxx The respondent court likewise pointed out the trial courts pronouncements as to certain matters of substance, relating to the determination of the heirs of the decedents and the party entitled to the administration of their estate, which were to be raised in the appeal, but were barred absolutely by the denial of the record on appeal upon too technical ground of late filing. xxx xxx xxx In this instance, private respondents intention to raise valid issues in the appeal is apparent and should not have been construed as an attempt to delay or prolong the administration proceedings. xxx xxx xxx A review of the trial courts decision is needed.

xxx xxx xxx WHEREFORE, in view of the foregoing considerations, the Court hereby AFFIRMS the Resolution dated November 27, 1991 of the Court of Appeals in CA-G.R. SP No. 23415, for the APPROVAL of the private respondents Record on Appeal and the CONTINUANCE of the appeal from the Manila, Branch LV Regional Trial Courts May 11, 1990 decision. SO ORDERED. Acting on the appeal, the Court of Appeals34 partially set aside the trial courts decision. Upon motion for reconsideration,35 the Court of Appeals amended its earlier decision.36 The dispositive portion of the amended decision read: With the further modification, our assailed decision is RECONSIDERED and VACATED. Consequently, the decision of the trial court is REVERSED and SET ASIDE. A new one is hereby RENDERED declaring: 1.) Dr. Guillermo Rustia and Josefa Delgado Rustia to have been legally married; 2.) the intestate estate of Dr. Guillermo Rustia, Jacoba Delgado-Encinas and the children of Gorgonio Delgado (Campo) entitled to partition among themselves the intestate estate of Josefa D. Rustia in accordance with the proportion referred to in this decision; 3.) the oppositors-appellants as the legal heirs of the late Dr. Guillermo Rustia and thereby entitled to partition his estate in accordance with the proportion referred to herein; and 4.) the intervenor-appellee Guillerma S. Rustia as ineligible to inherit from the late Dr. Guillermo Rustia; thus revoking her appointment as administratrix of his estate. The letters of administration of the intestate estate of Dr. Guillermo Rustia in relation to the intestate estate of Josefa Delgado shall issue to the nominee of the oppositors-appellants upon his or her qualification and filing of the requisite bond in the sum of FIVE HUNDRED THOUSAND PESOS (P500,000.00). Oppositor-appellant Guillermina Rustia Rustia is hereby ordered to cease and desist from her acts of administration of the subject estates and to turn over to the appointed administrator all her collections of the rentals and incomes due on the assets of the estates in question, including all documents, papers, records and titles pertaining to such estates to the appointed administrator, immediately upon notice of his qualification and posting of the requisite bond, and to render an accounting of her (Guillermina Rustia Rustia) actual administration of the estates in controversy within a period of sixty (60) days from notice of the administrators qualification and posting of the bond. The issue of the validity of the affidavit of self-adjudication executed by Dr. Guillermo Rustia on June 15, 1973 isREMANDED to the trial court for further proceedings to determine the extent of the shares of Jacoba Delgado-Encinas and the children of Gorgonio Delgado (Campo) affected by the said adjudication. Hence, this recourse. The issues for our resolution are: 1. whether there was a valid marriage between Guillermo Rustia and Josefa Delgado; 2. who the legal heirs of the decedents Guillermo Rustia and Josefa Delgado are; 3. who should be issued letters of administration. The marriage of Guillermo Rustia and Josefa Delgado

A presumption is an inference of the existence or non-existence of a fact which courts are permitted to draw from proof of other facts. Presumptions are classified into presumptions of law and presumptions of fact. Presumptions of law are, in turn, either conclusive or disputable. 37 Rule 131, Section 3 of the Rules of Court provides: Sec. 3. Disputable presumptions. The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: xxx xxx xxx (aa) That a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage; xxx xxx xxx In this case, several circumstances give rise to the presumption that a valid marriage existed between Guillermo Rustia and Josefa Delgado. Their cohabitation of more than 50 years cannot be doubted. Their family and friends knew them to be married. Their reputed status as husband and wife was such that even the original petition for letters of administration filed by Luisa Delgado vda. de Danao in 1975 referred to them as "spouses." Yet, petitioners maintain that Josefa Delgado and Guillermo Rustia had simply lived together as husband and wife without the benefit of marriage. They make much of the absence of a record of the contested marriage, the testimony of a witness38 attesting that they were not married, and a baptismal certificate which referred to Josefa Delgado as "Seorita" or unmarried woman.39 We are not persuaded. First, although a marriage contract is considered a primary evidence of marriage, its absence is not always proof that no marriage in fact took place.40 Once the presumption of marriage arises, other evidence may be presented in support thereof. The evidence need not necessarily or directly establish the marriage but must at least be enough to strengthen the presumption of marriage. Here, the certificate of identity issued to Josefa Delgado as Mrs. Guillermo Rustia, 41 the passport issued to her as Josefa D. Rustia,42 the declaration under oath of no less than Guillermo Rustia that he was married to Josefa Delgado43 and the titles to the properties in the name of "Guillermo Rustia married to Josefa Delgado," more than adequately support the presumption of marriage. These are public documents which are prima facie evidence of the facts stated therein.44 No clear and convincing evidence sufficient to overcome the presumption of the truth of the recitals therein was presented by petitioners. Second, Elisa vda. de Anson, petitioners own witness whose testimony they primarily relied upon to support their position, confirmed that Guillermo Rustia had proposed marriage to Josefa Delgado and that eventually, the two had "lived together as husband and wife." This again could not but strengthen the presumption of marriage. Third, the baptismal certificate45 was conclusive proof only of the baptism administered by the priest who baptized the child. It was no proof of the veracity of the declarations and statements contained therein,46 such as the alleged single or unmarried ("Seorita") civil status of Josefa Delgado who had no hand in its preparation. Petitioners failed to rebut the presumption of marriage of Guillermo Rustia and Josefa Delgado. In this jurisdiction, every intendment of the law leans toward legitimizing matrimony. Persons dwelling together apparently in marriage are presumed to be in fact married. This is the usual order of things in society and,

if the parties are not what they hold themselves out to be, they would be living in constant violation of the common rules of law and propriety.Semper praesumitur pro matrimonio. Always presume marriage.47 The Lawful Heirs Of Josefa Delgado To determine who the lawful heirs of Josefa Delgado are, the questioned status of the cohabitation of her mother Felisa Delgado with Ramon Osorio must first be addressed. As mentioned earlier, presumptions of law are either conclusive or disputable. Conclusive presumptions are inferences which the law makes so peremptory that no contrary proof, no matter how strong, may overturn them.48On the other hand, disputable presumptions, one of which is the presumption of marriage, can be relied on only in the absence of sufficient evidence to the contrary. Little was said of the cohabitation or alleged marriage of Felisa Delgado and Ramon Osorio. The oppositors (now respondents) chose merely to rely on the disputable presumption of marriage even in the face of such countervailing evidence as (1) the continued use by Felisa and Luis (her son with Ramon Osorio) of the surname Delgado and (2) Luis Delgados and Caridad Concepcions Partida de Casamiento49 identifying Luis as "hijo natural de Felisa Delgado" (the natural child of Felisa Delgado).50 All things considered, we rule that these factors sufficiently overcame the rebuttable presumption of marriage. Felisa Delgado and Ramon Osorio were never married. Hence, all the children born to Felisa Delgado out of her relations with Ramon Osorio and Lucio Campo, namely, Luis and his half-blood siblings Nazario, Edilberta, Jose, Jacoba, Gorgonio and the decedent Josefa, all surnamed Delgado,51 were her natural children.52 Pertinent to this matter is the following observation: Suppose, however, that A begets X with B, and Y with another woman, C; then X and Y would be natural brothers and sisters, but of half-blood relationship. Can they succeed each other reciprocally? The law prohibits reciprocal succession between illegitimate children and legitimate children of the same parent, even though there is unquestionably a tie of blood between them. It seems that to allow an illegitimate child to succeed ab intestato (from) another illegitimate child begotten with a parent different from that of the former, would be allowing the illegitimate child greater rights than a legitimate child. Notwithstanding this, however, we submit that succession should be allowed, even when the illegitimate brothers and sisters are only of the half-blood. The reason impelling the prohibition on reciprocal successions between legitimate and illegitimate families does not apply to the case under consideration. That prohibition has for its basis the difference in category between illegitimate and legitimate relatives. There is no such difference when all the children are illegitimate children of the same parent, even if begotten with different persons. They all stand on the same footing before the law, just like legitimate children of half-blood relation. We submit, therefore, that the rules regarding succession of legitimate brothers and sisters should be applicable to them. Full blood illegitimate brothers and sisters should receive double the portion of half-blood brothers and sisters; and if all are either of the full blood or of the half-blood, they shall share equally. 53 Here, the above-named siblings of Josefa Delgado were related to her by full-blood, except Luis Delgado, her half-brother. Nonetheless, since they were all illegitimate, they may inherit from each other. Accordingly, all of them are entitled to inherit from Josefa Delgado. We note, however, that the petitioners before us are already the nephews, nieces, grandnephews and grandnieces of Josefa Delgado. Under Article 972 of the new Civil Code, the right of representation in the collateral line takes place only in favor of the children of brothers and sisters (nephews and nieces).

Consequently, it cannot be exercised by grandnephews and grandnieces. 54 Therefore, the only collateral relatives of Josefa Delgado who are entitled to partake of her intestate estate are her brothers and sisters, or their children who were still alive at the time of her death on September 8, 1972. They have a vested right to participate in the inheritance.55 The records not being clear on this matter, it is now for the trial court to determine who were the surviving brothers and sisters (or their children) of Josefa Delgado at the time of her death. Together with Guillermo Rustia, 56 they are entitled to inherit from Josefa Delgado in accordance with Article 1001 of the new Civil Code:57 Art. 1001. Should brothers and sisters or their children survive with 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 onehalf. Since Josefa Delgado had heirs other than Guillermo Rustia, Guillermo could not have validly adjudicated Josefas estate all to himself. Rule 74, Section 1 of the Rules of Court is clear. Adjudication by an heir of the decedents entire estate to himself by means of an affidavit is allowed only if he is the sole heir to the estate: SECTION 1. Extrajudicial settlement by agreement between heirs. If the decedent left no will and no debts and the heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the purpose, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary action of partition. If there is only one heir, he may adjudicate to himself the estate by means of an affidavit filed in the office of the register of deeds. x x x (emphasis supplied) The Lawful Heirs Of Guillermo Rustia Intervenor (now co-respondent) Guillerma Rustia is an illegitimate child 58 of Guillermo Rustia. As such, she may be entitled to successional rights only upon proof of an admission or recognition of paternity.59 She, however, claimed the status of an acknowledged illegitimate child of Guillermo Rustia only after the death of the latter on February 28, 1974 at which time it was already the new Civil Code that was in effect. Under the old Civil Code (which was in force till August 29, 1950), illegitimate children absolutely had no hereditary rights. This draconian edict was, however, later relaxed in the new Civil Code which granted certain successional rights to illegitimate children but only on condition that they were first recognized or acknowledged by the parent. Under the new law, recognition may be compulsory or voluntary. 60 Recognition is compulsory in any of the following cases: (1) in cases of rape, abduction or seduction, when the period of the offense coincides more or less with that of the conception; (2) when the child is in continuous possession of status of a child of the alleged father (or mother)61 by the direct acts of the latter or of his family; (3) when the child was conceived during the time when the mother cohabited with the supposed father; (4) when the child has in his favor any evidence or proof that the defendant is his father.
62

On the other hand, voluntary recognition may be made in the record of birth, a will, a statement before a court of record or in any authentic writing.63 Intervenor Guillerma sought recognition on two grounds: first, compulsory recognition through the open and continuous possession of the status of an illegitimate child and second, voluntary recognition through authentic writing. There was apparently no doubt that she possessed the status of an illegitimate child from her birth until the death of her putative father Guillermo Rustia. However, this did not constitute acknowledgment but a mere ground by which she could have compelled acknowledgment through the courts .64 Furthermore, any (judicial) action for compulsory acknowledgment has a dual limitation: the lifetime of the child and the lifetime of the putative parent.65On the death of either, the action for compulsory recognition can no longer be filed.66 In this case, intervenor Guillermas right to claim compulsory acknowledgment prescribed upon the death of Guillermo Rustia on February 28, 1974. The claim of voluntary recognition (Guillermas second ground) must likewise fail. An authentic writing, for purposes of voluntary recognition, is understood as a genuine or indubitable writing of the parent (in this case, Guillermo Rustia). This includes a public instrument or a private writing admitted by the father to be his.67 Did intervenors report card from the University of Santo Tomas and Josefa Delgados obituary prepared by Guillermo Rustia qualify as authentic writings under the new Civil Code? Unfortunately not. The report card of intervenor Guillerma did not bear the signature of Guillermo Rustia. The fact that his name appears there as intervenors parent/guardian holds no weight since he had no participation in its preparation. Similarly, while witnesses testified that it was Guillermo Rustia himself who drafted the notice of death of Josefa Delgado which was published in the Sunday Times on September 10, 1972, that published obituary was not the authentic writing contemplated by the law. What could have been admitted as an authentic writing was the original manuscript of the notice, in the handwriting of Guillermo Rustia himself and signed by him, not the newspaper clipping of the obituary. The failure to present the original signed manuscript was fatal to intervenors claim. The same misfortune befalls the ampun-ampunan, Guillermina Rustia Rustia, who was never adopted in accordance with law. Although a petition for her adoption was filed by Guillermo Rustia, it never came to fruition and was dismissed upon the latters death. We affirm the ruling of both the trial court and the Court of Appeals holding her a legal stranger to the deceased spouses and therefore not entitled to inherit from them ab intestato. We quote: Adoption is a juridical act, a proceeding in rem, which [created] between two persons a relationship similar to that which results from legitimate paternity and filiation. Only an adoption made through the court, or in pursuance with the procedure laid down under Rule 99 of the Rules of Court is valid in this jurisdiction. It is not of natural law at all, but is wholly and entirely artificial. To establish the relation, the statutory requirements must be strictly carried out, otherwise, the adoption is an absolute nullity. The fact of adoption is never presumed, but must be affirmatively [proven] by the person claiming its existence. 68 Premises considered, we rule that two of the claimants to the estate of Guillermo Rustia, namely, intervenor Guillerma Rustia and the ampun-ampunan Guillermina Rustia Rustia, are not lawful heirs of the decedent. Under Article 1002 of the new Civil Code, if there are no descendants, ascendants, illegitimate children, or surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased. Therefore, the lawful heirs of Guillermo Rustia are the remaining claimants, consisting of his sisters,69 nieces and nephews.70 Entitlement To Letters Of Administration An administrator is a person appointed by the court to administer the intestate estate of the decedent. Rule 78, Section 6 of the Rules of Court prescribes an order of preference in the appointment of an administrator:

Sec. 6. When and to whom letters of administration granted . If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give a bond, or a person dies intestate, administration shall be granted: (a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve; (b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that the administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve; (c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select. In the appointment of an administrator, the principal consideration is the interest in the estate of the one to be appointed.71 The order of preference does not rule out the appointment of co-administrators, specially in cases where justice and equity demand that opposing parties or factions be represented in the management of the estates,72 a situation which obtains here. It is in this light that we see fit to appoint joint administrators, in the persons of Carlota Delgado vda. de de la Rosa and a nominee of the nephews and nieces of Guillermo Rustia. They are the next of kin of the deceased spouses Josefa Delgado and Guillermo Rustia, respectively. WHEREFORE, the petition (which seeks to reinstate the May 11, 1990 decision of the RTC Manila, Branch 55) is hereby DENIED. The assailed October 24, 2002 decision of the Court of Appeals is AFFIRMED with the following modifications: 1. Guillermo Rustias June 15, 1973 affidavit of self-adjudication is hereby ANNULLED. 2. the intestate estate of Guillermo Rustia shall inherit half of the intestate estate of Josefa Delgado. The remaining half shall pertain to (a) the full and half-siblings of Josefa Delgado who survived her and (b) the children of any of Josefa Delgados full- or half-siblings who may have predeceased her, also surviving at the time of her death. Josefa Delgados grandnephews and grandnieces are excluded from her estate. In this connection, the trial court is hereby ordered to determine the identities of the relatives of Josefa Delgado who are entitled to share in her estate. 3. Guillermo Rustias estate (including its one-half share of Josefa Delgados estate) shall be inherited by Marciana Rustia vda. de Damian and Hortencia Rustia Cruz (whose respective shares shall be per capita) and the children of the late Roman Rustia, Sr. (who survived Guillermo Rustia and whose respective shares shall be per stirpes). Considering that Marciana Rustia vda. de Damian and Hortencia Rustia Cruz are now deceased, their respective shares shall pertain to their estates. 4. Letters of administration over the still unsettled intestate estates of Guillermo Rustia and Josefa Delgado shall issue to Carlota Delgado vda. de de la Rosa and to a nominee from among the heirs of Guillermo Rustia, as joint administrators, upon their qualification and filing of the requisite bond in such amount as may be determined by the trial court.

No pronouncement as to costs. SO ORDERED. RENATO C. CORONA Associate Justice

THIRD DIVISION G.R. No. 165879 November 10, 2006

MARIA B. CHING, Petitioner, vs. JOSEPH C. GOYANKO, JR., EVELYN GOYANKO, JERRY GOYANKO, IMELDA GOYANKO, JULIUS GOYANKO, MARY ELLEN GOYANKO AND JESS GOYANKO, Respondents. DECISION CARPIO MORALES, J.: On December 30, 1947, Joseph Goyanko (Goyanko) and Epifania dela Cruz (Epifania) were married.1 Out of the union were born respondents Joseph, Jr., Evelyn, Jerry, Imelda, Julius, Mary Ellen and Jess, all surnamed Goyanko. Respondents claim that in 1961, their parents acquired a 661 square meter property located at 29 F. Cabahug St., Cebu City but that as they (the parents) were Chinese citizens at the time, the property was registered in the name of their aunt, Sulpicia Ventura (Sulpicia). On May 1, 1993, Sulpicia executed a deed of sale 2 over the property in favor of respondents father Goyanko. In turn, Goyanko executed on October 12, 1993 a deed of sale 3 over the property in favor of his common-law-wife-herein petitioner Maria B. Ching. Transfer Certificate of Title (TCT) No. 138405 was thus issued in petitioners name. After Goyankos death on March 11, 1996, respondents discovered that ownership of the property had already been transferred in the name of petitioner. Respondents thereupon had the purported signature of their father in the deed of sale verified by the Philippine National Police Crime Laboratory which found the same to be a forgery.4

Respondents thus filed with the Regional Trial Court of Cebu City a complaint for recovery of property and damages against petitioner, praying for the nullification of the deed of sale and of TCT No. 138405 and the issuance of a new one in favor of their father Goyanko. In defense, petitioner claimed that she is the actual owner of the property as it was she who provided its purchase price. To disprove that Goyankos signature in the questioned deed of sale is a forgery, she presented as witness the notary public who testified that Goyanko appeared and signed the document in his presence. By Decision of October 16, 1998,5 the trial court dismissed the complaint against petitioner, the pertinent portions of which decision read: There is no valid and sufficient ground to declare the sale as null and void, fictitious and simulated. The signature on the questioned Deed of Sale is genuine. The testimony of Atty. Salvador Barrameda who declared in court that Joseph Goyanko, Sr. and Maria Ching together with their witnesses appeared before him for notarization of Deed of Sale in question is more reliable than the conflicting testimonies of the two document examiners. Defendant Maria Ching asserted that the Deed of Sale executed by Joseph Goyanko, Sr. in her favor is valid and genuine. The signature of Joseph Goyanko, Sr. in the questioned Deed of Absolute Sale is genuine as it was duly executed and signed by Joseph Goyanko, Sr. himself. The parcel of lands known as Lot No. 6 which is sought to be recovered in this case could never be considered as the conjugal property of the original Spouses Joseph C. Goyanko and Epifania dela Cruz or the exclusive capital property of the husband. The acquisition of the said property by defendant Maria Ching is well-elicited from the aforementioned testimonial and documentary evidence presented by the defendant. Although for a time being the property passed through Joseph Goyanko, Sr. as a buyer yet his ownership was only temporary and transitory for the reason that it was subsequently sold to herein defendant Maria Ching. Maria Ching claimed that it was even her money which was used by Joseph Goyanko, Sr. in the purchase of the land and so it was eventually sold to her. In her testimony, defendant Ching justified her financial capability to buy the land for herself. The transaction undertaken was from the original owner Sulpicia Ventura to Joseph Goyanko, Sr. and then from Joesph Goyanko, Sr. to herein defendant Maria Ching. The land subject of the litigation is already registered in the name of defendant Maria Ching under TCT No. 138405. By virtue of the Deed of Sale executed in favor of Maria Ching, Transfer Certificate of Title No. 138405 was issued in her favor. In recognition of the proverbial virtuality of a Torrens title, it has been repeatedly held that, unless bad faith can be established on the part of the person appearing as owner on the certificate of title, there is no other owner than that in whose favor it has been issued. A Torrens title is not subject to collateral attack. It is a well-known doctrine that a Torrens title, as a rule, is irrevocable and indefeasible, and the duty of the court is to see to it that this title is maintained and respected unless challenged in a direct proceedings [sic].6(Citations omitted; underscoring supplied) Before the Court of Appeals where respondents appealed, they argued that the trial court erred: 1. . . . when it dismissed the complaint a quo . . . , in effect, sustaining the sale of the subject property between Joseph, Sr. and the defendant-appellee, despite the proliferation in the records and admissions by both parties that defendant-appellee was the "mistress" or "common-law wife" of Joseph, Sr.. 2. . . . when it dismissed the complaint a quo . . . , in effect, sustaining the sale of the subject property between Joseph, Sr. and the defendant-appellee, despite the fact that the marriage of Joseph, Sr. and Epifania was then still subsisting thereby rendering the subject property as conjugal property of Joseph, Sr. and Epifania.

3. . . . in dismissing the complaint a quo . . . , in effect, sustaining the validity of the sale of the subject property between Joseph, Sr. and the defendant-appellee, despite the clear findings of forgery and the non-credible testimony of notary public. 7 By Decision dated October 21, 2003,8 the appellate court reversed that of the trial court and declared null and void the questioned deed of sale and TCT No. 138405. Held the appellate court: . . . The subject property having been acquired during the existence of a valid marriage between Joseph Sr. and Epifania dela Cruz-Goyanko, is presumed to belong to the conjugal partnership. Moreover, while this presumption in favor of conjugality is rebuttable with clear and convincing proof to the contrary, we find no evidence on record to conclude otherwise. The record shows that while Joseph Sr. and his wife Epifania have been estranged for years and that he and defendant-appellant Maria Ching, have in fact been living together as common-law husband and wife, there has never been a judicial decree declaring the dissolution of his marriage to Epifania nor their conjugal partnership. It is therefore undeniable that the 661-square meter property located at No. 29 F. Cabahug Street, Cebu City belongs to the conjugal partnership. Even if we were to assume that the subject property was not conjugal, still we cannot sustain the validity of the sale of the property by Joseph, Sr. to defendant-appellant Maria Ching, there being overwhelming evidence on records that they have been living together as common-law husband and wife. On this score, Art. 1352 of the Civil Code provides: "Art. 1352. Contracts without cause, or with unlawful cause, produce no effect whatsoever. The cause is unlawful if it is contrary to law, morals, good customs, public order or public policy." We therefore find that the contract of sale in favor of the defendant-appellant Maria Ching was null and void for being contrary to morals and public policy. The purported sale, having been made by Joseph Sr. in favor of his concubine, undermines the stability of the family, a basic social institution which public policy vigilantly protects. Furthermore, the law emphatically prohibits spouses from selling property to each other, subject to certain exceptions. And this is so because transfers or conveyances between spouses, if allowed during the marriage would destroy the system of conjugal partnership, a basic policy in civil law. The prohibition was designed to prevent the exercise of undue influence by one spouse over the other and is likewise applicable even to common-law relationships otherwise, "the condition of those who incurred guilt would turn out to be better than those in legal union. 9 (Underscoring supplied) Hence, the present petition, petitioners arguing that the appellate court gravely erred in: I. . . . APPLYING THE STATE POLICY ON PROHIBITION AGAINST CONVEYANCES AND TRANSFERS OF PROPERTIES BETWEEN LEGITIMATE AND COMMON LAW SPOUSES ON THE SUBJECT PROPERTY, THE SAME BEING FOUND BY THE COURT A QUO, AS THE EXCLUSIVE PROPERTY OF PETITIONER, AND THAT THE SAME WAS NEVER PART OF THE CONJUGAL PROPERTY OF THE MARRIAGE BETWEEN RESPONDENTS MOTHER EPIFANIA GOYANKO AND PETITIONERS COMMON LAW HUSBAND, JOSEPH GOYANKO, SR., NOR THE EXCLUSIVE OR CAPITAL PROPERTY OF THE LATTER AT ANYTIME BEFORE THE SAME WAS VALIDLY ACQUIRED BY PETITIONER. II. . . . NOT FINDING THAT A JURIDICAL RELATION OF TRUST AS PROVIDED FOR UNDER ARTICLES 1448 AND 1450 OF THE NEW CIVIL CODE CAN VALIDLY EXIST BETWEEN COMMON LAW SPOUSES.

III. . . . NOT FINDING THAT A CONVEYANCE OVER A PROPERTY MADE BY A TRUSTEE, WHO BECAME AS SUCH IN CONTEMPLATION OF LAW, AND WHO HAPPENS TO BE A COMMON LAW HUSBAND OF THE BENEFICIARY, IS NOT A VIOLATION OF A STATE POLICY ON PROHIBITION AGAINST CONVEYANCES AND TRANSFERS OF PROPERTIES BETWEEN LEGITIMATE AND COMMON LAW SPOUSES. IV. . . . ALLOWING RESPONDENTS TO ABANDON THEIR ORIGINAL THEORY OF THEIR CASE DURING APPEAL.10 The pertinent provisions of the Civil Code which apply to the present case read: ART. 1352. Contracts without cause, or with unlawful cause, produce no effect whatever. The cause is unlawful if it is contrary to law, morals, good customs, public order or public policy. ART. 1409. The following contracts are inexistent and void from the beginning: (1) Those whose cause, object or purpose is contrary to law, morals, good customs, public order or public policy; (2) Those which are absolutely simulated or fictitious; (3) Those whose cause or object did not exist at the time of the transaction; (4) Those whose object is outside the commerce of men; (5) Those which contemplate an impossible service; (6) Those where the intention of the parties relative to the principal object of the contract cannot be ascertained; (7) Those expressly prohibited or declared void by law. These contracts cannot be ratified. Neither can the right to set up the defense of illegality be waived. ARTICLE 1490. The husband and wife cannot sell property to each other, except: (1) When a separation of property was agreed upon in the marriage settlements; or (2) When there has been a judicial separation of property under Article 191. (Underscoring supplied) The proscription against sale of property between spouses applies even to common law relationships. So this Court ruled in Calimlim-Canullas v. Hon. Fortun, etc., et al.:11 Anent the second issue, we find that the contract of sale was null and void for being contrary to morals and public policy. The sale was made by a husband in favor of a concubine after he had abandoned his family and left the conjugal home where his wife and children lived and from whence they

derived their support. The sale was subversive of the stability of the family, a basic social institution which public policy cherishes and protects. Article 1409 of the Civil Code states inter alia that: contracts whose cause, object, or purposes is contrary to law, morals, good customs, public order, or public policy are void and inexistent from the very beginning. Article 1352 also provides that: "Contracts without cause, or with unlawful cause, produce no effect whatsoever. The cause is unlawful if it is contrary to law, morals, good customs, public order, or public policy." Additionally, the law emphatically prohibits the spouses from selling property to each other subject to certain exceptions.1wphi1 Similarly, donations between spouses during marriage are prohibited. And this is so because if transfers or conveyances between spouses were allowed during marriage, that would destroy the system of conjugal partnership, a basic policy in civil law. It was also designed to prevent the exercise of undue influence by one spouse over the other, as well as to protect the institution of marriage, which is the cornerstone of family law. The prohibitions apply to a couple living as husband and wife without benefit of marriage, otherwise, "the condition of those who incurred guilt would turn out to be better than those in legal union." Those provisions are dictated by public interest and their criterion must be imposed upon the will of the parties. . . . 12 (Italics in the original; emphasis and underscoring supplied) As the conveyance in question was made by Goyangko in favor of his common- law-wife-herein petitioner, it was null and void. Petitioners argument that a trust relationship was created between Goyanko as trustee and her as beneficiary as provided in Articles 1448 and 1450 of the Civil Code which read: ARTICLE 1448. There is an implied trust when property is sold, and the legal estate is granted to one party but the price is paid by another for the purpose of having the beneficial interest of the property. The former is the trustee, while the latter is the beneficiary. However, if the person to whom the title is conveyed is a child, legitimate or illegitimate, of the one paying the price of the sale, no trust is implied by law, it being disputably presumed that there is a gift in favor of the child. ARTICLE 1450. If the price of a sale of property is loaned or paid by one person for the benefit of another and the conveyance is made to the lender or payor to secure the payment of the debt, a trust arises by operation of law in favor of the person to whom the money is loaned or for whom it is paid. The latter may redeem the property and compel a conveyance thereof to him. does not persuade. For petitioners testimony that it was she who provided the purchase price is uncorroborated. That she may have been considered the breadwinner of the family and that there was proof that she earned a living do not conclusively clinch her claim. As to the change of theory by respondents from forgery of their fathers signature in the deed of sale to sale contrary to public policy, it too does not persuade. Generally, a party in a litigation is not permitted to freely and substantially change the theory of his case so as not to put the other party to undue disadvantage by not accurately and timely apprising him of what he is up against, 13 and to ensure that the latter is given the opportunity during trial to refute all allegations against him by presenting evidence to the contrary. In the present case, petitioner cannot be said to have been put to undue disadvantage and to have been denied the chance to refute all the allegations against her. For the nullification of the sale is anchored on its illegality per se, it being violative of the above-cited Articles 1352, 1409 and 1490 of the Civil Code.

WHEREFORE, the petition is DENIED for lack of merit. Costs against petitioner. SO ORDERED CONCHITA CARPIO MORALES Associate Justice

FIRST DIVISION G.R. No. 167684 July 31, 2006

JAIME O.SEVILLA, petitioner, vs. CARMELITA N. CARDENAS, respondent. DECISION CHICO-NAZARIO, J.:

This Petition for Review on Certiorari seeks the reversal of the Decision1 of the Court of Appeals in CAG.R. CV No. 74416 dated 20 December 2004 which set aside the Decision 2 of the Regional Trial Court (RTC) of Makati City, in Civil Case No. 94-1285 dated 25 January 2002. In a Complaint3 dated 28 March 1994 filed by Jaime O. Sevilla before the RTC, he claimed that on 19 May 1969, through machinations, duress and intimidation employed upon him by Carmelita N. Cardenas and the latter's father, retired Colonel Jose Cardenas of the Armed forces of the Philippines, he and Carmelita went to the City Hall of Manila and they were introduced to a certain Reverend Cirilo D. Gonzales, a supposed Minister of the Gospel. On the said date, the father of Carmelita caused him and Carmelita to sign a marriage contract before the said Minister of the Gospel. According to Jaime, he never applied for a marriage license for his supposed marriage to Carmelita and never did they obtain any marriage license from any Civil Registry, consequently, no marriage license was presented to the solemnizing officer. For her part, Carmelita refuted these allegations of Jaime, and claims that she and Jaime were married civilly on 19 May 1969,4 and in a church ceremony thereafter on 31 May 1969 5 at the Most Holy Redeemer Parish in Quezon City. Both marriages were registered with the local civil registry of Manila and the National Statistics Office. He is estopped from invoking the lack of marriage license after having been married to her for 25 years. The trial court made the following findings: In support of his complaint, plaintiff [Jaime] testified that on May 19, 1969, he and defendant [Carmelita] appeared before a certain Rev. Cirilo D. Gonzales, a Minister of the Gospel, at the city hall in Manila where they executed a Marriage Contract (Exh. "A") in civil rites. A certain Godofredo Occena who, plaintiff alleged, was an aide of defendant's father accompanied them, and who, together with another person, stood as witness to the civil wedding. That although marriage license no. 2770792 allegedly issued in San Juan, Rizal on May 19, 1969 was indicated in the marriage contract, the same was fictitious for he never applied for any marriage license, (Ibid., p. 11). Upon verifications made by him through his lawyer, Atty. Jose M. Abola, with the Civil Registry of San Juan, a Certification dated March 11, 1994 (Exh. "E") was issued by Rafael D. Aliscad, Jr., Local Civil Registrar of San Juan, that "no marriage license no. 2770792 was ever issued by said office." On May 31, 1969, he and defendant were again wed, this time in church rites, before Monsignor Juan Velasco at the Most Holy Redeemer Parish Church in Brixton Hills, Quezon City, where they executed another marriage contract (Exh. "F") with the same marriage license no. 2770792 used and indicated. Preparations and expenses for the church wedding and reception were jointly shared by his and defendant's parents. After the church wedding, he and defendant resided in his house at Brixton Hills until their first son, Jose Gabriel, was born in March 1970. As his parents continued to support him financially, he and defendant lived in Spain for some time, for his medical studies. Eventually, their marital relationship turned bad because it became difficult for him to be married he being a medical student at that time. They started living apart in 1976, but they underwent family counseling before they eventually separated in 1978. It was during this time when defendant's second son was born whose paternity plaintiff questioned. Plaintiff obtained a divorce decree against defendant in the United States in 1981 and later secured a judicial separation of their conjugal partnership in 1983. Atty. Jose M. Abola, then counsel for the plaintiff, himself manifested that when his service was engaged by plaintiff, and after the latter narrated to him the circumstances of his marriage, he made inquiries with the Office of Civil Registry of San Juan where the supposed marriage license was obtained and with the Church of the Most Holy Redeemer Parish where the religious wedding ceremony was celebrated. His request letters dated March 3, 1994 (Exh. "J"), March 7, 1994 (Exh. "L"), March 9, 1994 (Exh. "M") and March 11, 1994 (Exh. "K") were all sent to and received by the Civil Registrar of San Juan, who in reply thereto, issued Certifications dated March 4, 1994 (Exh. "I"), and March 11, 1994 (Exh. "E") and September 20, 1994 (Exh. "C"), that "no marriage license no. 2770792 was ever issued by that office." Upon his inquiry, the Holy

Redeemer Parish Church issued him a certified copy of the marriage contract of plaintiff and defendant (Exh. "F") and a Certificate of Marriage dated April 11, 1994 (Exh. "G"), wherein it noted that it was a "purely religious ceremony, having been civilly married on May 19, 1969 at the City Hall, Manila, under Marriage License No. 2770792 issued at San Juan, Rizal on May 19, 1969." Perlita Mercader, Registration Officer III of the Local Registry of San Juan, identified the Certificates dated March 4, 1994, March 11, 1994 and September 20, 1994 issued by Rafael Aliscad, Jr., the Local Civil Registrar, and testified that their office failed to locate the book wherein marriage license no. 2770792 may have been registered (TSN, 8-6-96, p. 5). Defendant Carmelita Cardenas testified that she and plaintiff had a steady romantic relationship after they met and were introduced to each other in October 1968. A model, she was compelled by her family to join the Mutya ng Pilipinas beauty pageant when plaintiff who was afraid to lose her, asked her to run away with him to Baguio. Because she loved plaintiff, she turned back on her family and decided to follow plaintiff in Baguio. When they came back to Manila, she and plaintiff proceeded to the latter's home in Brixton Hills where plaintiff's mother, Mrs. Sevilla, told her not to worry. Her parents were hostile when they learned of the elopement, but Mrs. Sevilla convinced them that she will take care of everything, and promised to support plaintiff and defendant. As plaintiff was still fearful he may lose her, he asked her to marry him in civil rites, without the knowledge of her family, more so her father (TSN, 5-28-98, p. 4) on May 19, 1969, before a minister and where she was made to sign documents. After the civil wedding, they had lunch and later each went home separately. On May 31, 1969, they had the church wedding, which the Sevilla family alone prepared and arranged, since defendant's mother just came from hospital. Her family did not participate in the wedding preparations. Defendant further stated that there was no sexual consummation during their honeymoon and that it was after two months when they finally had sex. She learned from Dr. Escudero, plaintiff's physician and one of their wedding sponsors that plaintiff was undergoing psychiatric therapy since age 12 (TSN, 11-2-98, p. 15) for some traumatic problem compounded by his drug habit. She found out plaintiff has unusual sexual behavior by his obsession over her knees of which he would take endless pictures of. Moreover, plaintiff preferred to have sex with her in between the knees which she called "intrafemural sex," while real sex between them was far and between like 8 months, hence, abnormal. During their marriage, plaintiff exhibited weird sexual behavior which defendant attributed to plaintiff's drug addiction (TSN, 11-5-98, pp. 5-8). A compulsive liar, plaintiff has a bad temper who breaks things when he had tantrums. Plaintiff took drugs like amphetamines, benzedrine and the like, "speed" drugs that kept him from sleep and then would take barbiturates or downers, like "mogadon." Defendant tried very hard to keep plaintiff away from drugs but failed as it has become a habit to him. They had no fixed home since they often moved and partly lived in Spain for about four and a half years, and during all those times, her mother-in-law would send some financial support on and off, while defendant worked as an English teacher. Plaintiff, who was supposed to be studying, did nothing. Their marriage became unbearable, as plaintiff physically and verbally abused her, and this led to a break up in their marriage. Later, she learned that plaintiff married one Angela Garcia in 1991 in the United States. Jose Cardenas, father of defendant, testified that he was not aware of the civil wedding of his daughter with the plaintiff; that his daughter and grandson came to stay with him after they returned home from Spain and have lived with him and his wife ever since. His grandsons practically grew up under his care and guidance, and he has supported his daughter's expenses for medicines and hospital confinements (Exhs. "9" and "10"). Victoria Cardenas Navarro, defendant's sister, testified and corroborated that it was plaintiff's family that attended to all the preparations and arrangements for the church wedding of her sister with plaintiff, and that she didn't know that the couple wed in civil rites some time prior to the church wedding. She also stated that she and her parents were still civil with the plaintiff inspite of the marital differences between plaintiff and defendant.

As adverse witness for the defendant, plaintiff testified that because of irreconcilable differences with defendant and in order for them to live their own lives, they agreed to divorce each other; that when he applied for and obtained a divorce decree in the United States on June 14, 1983 (Exh. "13"), it was with the knowledge and consent of defendant who in fact authorized a certain Atty. Quisumbing to represent her (TSN, 12-7-2000, p. 21). During his adverse testimony, plaintiff identified a recent certification dated July 25, 2000 (Exh. "EE") issued by the Local Civil Registrar of San Juan, that the marriage license no. 2770792, the same marriage license appearing in the marriage contract (Exh. "A"), is inexistent, thus appears to be fictitious. 6 In its Decision dated 25 January 2002, declaring the nullity of the marriage of the parties, the trial court made the following justifications: Thus, being one of the essential requisites for the validity of the marriage, the lack or absence of a license renders the marriage void ab initio. It was shown under the various certifications (Exhs. "I", "E", and "C") earlier issued by the office of the Local Civil Registrar of the Municipality of San Juan, and the more recent one issued on July 25, 2000 (Exh. "EE") that no marriage license no. 2770792 was ever issued by that office, hence, the marriage license no. 2770792 appearing on the marriage contracts executed on May 19, 1969 (Exh. "A") and on May 31, 1969 (Exh. "F") was fictitious. Such a certification enjoys probative value under the rules on evidence, particularly Section 28, Rule 132 of the Rules of Court, x x x. xxxx WHEREFORE, the Court hereby declares the civil marriage between Jaime O. Sevilla and Carmelita N. Cardenas solemnized by Rev. Cirilo D. Gonzales at the Manila City Hall on May 19, 1969 as well as their contract of marriage solemnized under religious rites by Rev. Juan B. Velasco at the Holy Redeemer Parish on May 31, 1969, NULL and VOID for lack of the requisite marriage license. Let the marriage contract of the parties under Registry No. 601 (e-69) of the registry book of the Local Civil Registry of Manila be cancelled. Let copies of this Decision be duly recorded in the proper civil and property registries in accordance with Article 52 of the Family Code. Likewise, let a copy hereof be forwarded the Office of the Solicitor General for its record and information. 7 Carmelita filed an appeal with the Court of Appeals. In a Decision dated 20 December 2004, the Court of Appeals disagreed with the trial court and held: In People v. De Guzman (G.R. No. 106025, February 9, 1994), the Supreme Court explained that: "The presumption of regularity of official acts may be rebutted by affirmative evidence of irregularity or failure to perform a duty. The presumption, however, prevails until it is overcome by no less than clear and convincing evidence to the contrary. Thus, unless the presumption is rebutted, it becomes conclusive." In this case, We note that a certain Perlita Mercader of the local civil registry of San Juan testified that they "failed to locate the book wherein marriage license no. 2770792 is registered," for the reason that "the employee handling is already retired. " With said testimony We cannot therefore just presume that the marriage license specified in the parties' marriage contract was not issued for in the end the failure of the office of the local civil registrar of San Juan to produce a copy of the marriage license was attributable not to the fact that no such marriage license was issued but rather, because it "failed to locate the book wherein marriage license no. 2770792 is registered." Simply put, if the pertinent book were available for scrutiny, there is a strong possibility that it would have contained an entry on marriage license no. 2720792.

xxxx Indeed, this Court is not prepared to annul the parties' marriage on the basis of a mere perception of plaintiff that his union with defendant is defective with respect to an essential requisite of a marriage contract, a perception that ultimately was not substantiated with facts on record. 8 Jaime filed a Motion for Reconsideration dated 6 January 2005 which the Court of Appeals denied in a Resolution dated 6 April 2005. This denial gave rise to the present Petition filed by Jaime. He raises the following issues for Resolution. 1. Whether or not a valid marriage license was issued in accordance with law to the parties herein prior to the celebration of the marriages in question; 2. Whether or not the Court of Appeals correctly applied and relied on the presumption of regularity of officials acts, particularly the issuance of a marriage license, arising solely from the contents of the marriage contracts in question which show on their face that a marriage license was purportedly issued by the Local Civil Registry of San Juan, Metro Manila, and 3. Whether or not respondent could validly invoke/rely upon the presumption of validity of a marriage arising from the admitted "fact of marriage." 9 At the core of this controversy is the determination of whether or not the certifications from the Local Civil Registrar of San Juan stating that no Marriage License No. 2770792 as appearing in the marriage contract of the parties was issued, are sufficient to declare their marriage as null and void ab initio. We agree with the Court of Appeals and rule in the negative. Pertinent provisions of the Civil Code which was the law in force at the time of the marriage of the parties are Articles 53,10 5811 and 80.12 Based on the foregoing provisions, a marriage license is an essential requisite for the validity of marriage. The marriage between Carmelita and Jaime is of no exception. At first glance, this case can very well be easily dismissed as one involving a marriage that is null and void on the ground of absence of a marriage license based on the certifications issued by the Local Civil Registar of San Juan. As ruled by this Court in the case of Cario v. Cario13: [A]s certified by the Local Civil Registrar of San Juan, Metro Manila, their office has no record of such marriage license. In Republic v. Court of Appeals, the Court held that such a certification is adequate to prove the non-issuance of a marriage license. Absent any circumstance of suspicion, as in the present case, the certification issued by the local civil registrar enjoys probative value, he being the officer charged under the law to keep a record of all date relative to the issuance of a marriage license. Such being the case, the presumed validity of the marriage of petitioner and the deceased has been sufficiently overcome. It then became the burden of petitioner to prove that their marriage is valid and that they secured the required marriage license. Although she was declared in default before the trial court, petitioner could have squarely met the issue and explained the absence of a marriage license in her pleadings before the Court of Appeals and this Court. But petitioner

conveniently avoided the issue and chose to refrain from pursuing an argument that will put her case in jeopardy. Hence, the presumed validity of their marriage cannot stand. It is beyond cavil, therefore, that the marriage between petitioner Susan Nicdao and the deceased, having been solemnized without the necessary marriage license, and not being one of the marriages exempt from the marriage license requirement, is undoubtedly void ab initio. The foregoing Decision giving probative value to the certifications issued by the Local Civil Registrar should be read in line with the decision in the earlier case of Republic v. Court of Appeals,14 where it was held that: The above Rule authorized the custodian of documents to certify that despite diligent search, a particular document does not exist in his office or that a particular entry of a specified tenor was not to be found in a register. As custodians of public documents, civil registrars are public officers charged with the duty, inter alia, of maintaining a register book where they are required to enter all applications for marriage licenses, including the names of the applicants, the date the marriage license was issued and such other relevant data. (Emphasis supplied.) Thus, the certification to be issued by the Local Civil Registrar must categorically state that the document does not exist in his office or the particular entry could not be found in the register despite diligent search. Such certification shall be sufficient proof of lack or absence of record as stated in Section 28, Rule 132 of the Rules of Court: SEC. 28. Proof of lack of record. a written statement signed by an officer having the custody of an official record or by his deputy that after diligent search, no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry. We shall now proceed to scrutinize whether the certifications by the Local Civil Registrar of San Juan in connection with Marriage License No. 2770792 complied with the foregoing requirements and deserved to be accorded probative value. The first Certification15 issued by the Local Civil Registrar of San Juan, Metro Manila, was dated 11 March 1994. It reads: TO WHOM IT MAY CONCERN: No Marriage License Number 2770792 were (sic) ever issued by this Office. With regards (sic) to Marriage License Number 2880792,16 we exert all effort but we cannot find the said number. Hope and understand our loaded work cannot give you our full force locating the above problem. San Juan, Metro Manila March 11, 1994 (SGD)RAFAEL D. ALISCAD, JR. Local Civil Registrar The second certification17 was dated 20 September 1994 and provides: TO WHOM IT MAY CONCERN:

This is to certify that no marriage license Number 2770792 were ever issued by this Office with regards to Marriage License Number 2880792, we exert all effort but we cannot find the said number. Hope and understand our loaded work cannot give you our full force locating the above problem. San Juan, Metro Manila September 20, 1994 (SGD)RAFAEL D. ALISCAD, JR. Local Civil Registrar The third Certification,18 issued on 25 July 2000, states: TO WHOM IT MAY CONCERN: This is to certify that according to the records of this office, no Marriage License Application was filed and no Marriage License No. 2770792 allegedly dated May 19, 1969 was issued by this Office to MR. JAIME O. SEVILLA and MS. CARMELITA CARDENAS-SEVILLA. This is to further certify that the said application and license do not exist in our Local Civil Registry Index and, therefore, appear to be fictitious. This certification is being issued upon the request of the interested party for whatever legal intent it may serve. San Juan, Metro Manila July 25, 2000 (SGD)RAFAEL D. ALISCAD, JR. Local Civil Registrar Note that the first two certifications bear the statement that "hope and understand our loaded work cannot give you our full force locating the above problem." It could be easily implied from the said statement that the Office of the Local Civil Registrar could not exert its best efforts to locate and determine the existence of Marriage License No. 2770792 due to its "loaded work." Likewise, both certifications failed to state with absolute certainty whether or not such license was issued. This implication is confirmed in the testimony of the representative from the Office of the Local Civil Registrar of San Juan, Ms. Perlita Mercader, who stated that they cannot locate the logbook due to the fact that the person in charge of the said logbook had already retired. Further, the testimony of the said person was not presented in evidence. It does not appear on record that the former custodian of the logbook was deceased or missing, or that his testimony could not be secured. This belies the claim that all efforts to locate the logbook or prove the material contents therein, had been exerted. As testified to by Perlita Mercader: Q Under the subpoena duces tecum, you were required to bring to this Court among other things the register of application of/or (sic) for marriage licenses received by the Office of the :Local Civil

Registrar of San Juan, Province of Rizal, from January 19, 1969 to May 1969. Did you bring with you those records? A I brought may 19, 1969, sir. Q Is that the book requested of you under no. 3 of the request for subpoena? A Meron pang January. I forgot, January . . . Q Did you bring that with you? A No, sir. Q Why not? A I cannot locate the book. This is the only book. Q Will you please state if this is the register of marriage of marriage applications that your office maintains as required by the manual of the office of the Local Civil Registrar? COURT May I see that book and the portion marked by the witness. xxxx COURT Why don't you ask her direct question whether marriage license 2880792 is the number issued by their office while with respect to license no. 2770792 the office of the Local Civil Registrar of San Juan is very definite about it it was never issued. Then ask him how about no. 2880792 if the same was ever issued by their office. Did you ask this 2887092, but you could not find the record? But for the moment you cannot locate the books? Which is which now, was this issued or not? A The employee handling it is already retired, sir. 19 Given the documentary and testimonial evidence to the effect that utmost efforts were not exerted to locate the logbook where Marriage License No. 2770792 may have been entered, the presumption of regularity of performance of official function by the Local Civil Registrar in issuing the certifications, is effectively rebutted. According to Section 3(m),20 Rule 131 of the Rules of Court, the presumption that official duty has been regularly performed is among the disputable presumptions. In one case, it was held: A disputable presumption has been defined as a species of evidence that may be accepted and acted on where there is no other evidence to uphold the contention for which it stands, or one which may be overcome by other evidence. One such disputable/rebuttable presumption is that an official act or duty has been regularly performed. x x x. 21

The presumption of regularity of official acts may be rebutted by affirmative evidence of irregularity or failure to perform a duty.22 The presumption of regularity of performance of official duty is disputable and can be overcome by other evidence as in the case at bar where the presumption has been effectively defeated by the tenor of the first and second certifications. Moreover, the absence of the logbook is not conclusive proof of non-issuance of Marriage License No. 2770792. It can also mean, as we believed true in the case at bar, that the logbook just cannot be found. In the absence of showing of diligent efforts to search for the said logbook, we cannot easily accept that absence of the same also means non-existence or falsity of entries therein. Finally, the rule is settled that every intendment of the law or fact leans toward the validity of the marriage, the indissolubility of the marriage bonds.23 The courts look upon this presumption with great favor. It is not to be lightly repelled; on the contrary, the presumption is of great weight. 24 The Court is mindful of the policy of the 1987 Constitution to protect and strengthen the family as the basic autonomous social institution and marriage as the foundation of the family. Thus, any doubt should be resolved in favor of the validity of the marriage. 25 The parties have comported themselves as husband and wife and lived together for several years producing two offsprings,26 now adults themselves. It took Jaime several years before he filed the petition for declaration of nullity. Admittedly, he married another individual sometime in 1991. 27 We are not ready to reward petitioner by declaring the nullity of his marriage and give him his freedom and in the process allow him to profit from his own deceit and perfidy. 28 Our Constitution is committed to the policy of strengthening the family as a basic social institution. Our family law is based on the policy that marriage is not a mere contract, but a social institution in which the State is vitally interested. The State can find no stronger anchor than on good, solid and happy families. The break-up of families weakens our social and moral fabric; hence, their preservation is not the concern of the family members alone.29 "The basis of human society throughout the civilized world is x x x marriage. Marriage in this jurisdiction is not only a civil contract, but it is a new relation, an institution in the maintenance of which the public is deeply interested. Consequently, every intendment of the law leans toward legalizing matrimony. Persons dwelling together in apparent matrimony are presumed, in the absence of any counterpresumption or evidence special to the case, to be in fact married . The reason is that such is the common order of society, and if the parties were not what they thus hold themselves out as being, they would be living in the constant violation of decency and of law. A presumption established by our Code of Civil Procedure is `that a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage.' Semper praesumitur pro matrimonio Always presume marriage."30 This jurisprudential attitude towards marriage is based on the prima facie presumption that a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage. 31 By our failure to come to the succor of Jaime, we are not trifling with his emotion or deepest sentiments. As we have said in Carating-Siayngco v. Siayngco,32 regrettably, there are situations like this one, where neither law nor society can provide the specific answers to every individual problem. WHEREFORE, premises considered, the instant Petition is DENIED. The Decision of the Court of Appeals dated 20 December 2004 and the Resolution dated 6 April 2005 are AFFIRMED. Costs against the petitioner.

SO ORDERED. Panganiban, C.J., Ynares-Santiago, Austria-Martinez, Callejo, Sr., J.J., concur.

EN BANC

[A.M. No. P-02-1651. August 4, 2003]

ALEJANDRO ESTRADA, complainant, vs. SOLEDAD S. ESCRITOR, respondent. DECISION PUNO, J.: The case at bar takes us to a most difficult area of constitutional law where man stands accountable to an authority higher than the state. To be held on balance are the states interest and the respondents religious freedom. In this highly sensitive area of law, the task of balancing between authority and liberty is most delicate because to the person invoking religious freedom, the consequences of the case are not only temporal. The task is not made easier by the American origin of our religion clauses and the wealth of U.S. jurisprudence on these clauses for in the United States, there is probably no more intensely controverted area of constitutional interpretation than the religion clauses. [1] The U.S. Supreme Court itself has acknowledged that in this constitutional area, there is considerable internal inconsistency in the opinions of the Court.[2] As stated by a professor of law, (i)t is by now notorious that legal doctrines and judicial decisions in the area of religious freedom are in serious disarray. In perhaps no other area of constitutional law have confusion and inconsistency achieved such undisputed sovereignty.[3] Nevertheless, this thicket is the only path to take to conquer the mountain of a legal problem the case at bar presents. Both the penetrating and panoramic view this climb would provide will largely chart the course of religious freedom in Philippine jurisdiction. That the religious freedom question arose in an administrative case involving only one person does not alter the paramount importance of the question for the constitution commands the positive protection by government of religious freedom -not only for a minority, however small- not only for a majority, however large- but for each of us. [4]

I. Facts The facts of the case will determine whether respondent will prevail in her plea of religious freedom. It is necessary therefore to lay down the facts in detail, careful not to omit the essentials. In a sworn letter-complaint dated July 27, 2000, complainant Alejandro Estrada wrote to Judge Jose F. Caoibes, Jr., presiding judge of Branch 253, Regional Trial Court of Las Pias City, requesting for an investigation of rumors that respondent Soledad Escritor, court interpreter in said court, is living with a man not her husband. They allegedly have a child of eighteen to twenty years old. Estrada is not personally related either to Escritor or her partner and is a resident not of Las Pias City but of Bacoor, Cavite. Nevertheless, he filed the charge against Escritor as he believes that she is committing an immoral act that tarnishes the image of the court, thus she should not be allowed to remain employed therein as it might appear that the court condones her act. [5] Judge Caoibes referred the letter to Escritor who stated that there is no truth as to the veracity of the allegation and challenged Estrada to appear in the open and prove his allegation in the proper forum.[6] Judge Caoibes set a preliminary conference on October 12, 2000. Escritor moved for the inhibition of Judge Caoibes from hearing her case to avoid suspicion and bias as she previously filed an administrative complaint against him and said case was still pending in the Office of the Court Administrator (OCA). Escritors motion was denied. The preliminary conference proceeded with both Estrada and Escritor in attendance. Estrada confirmed that he filed the letter-complaint for immorality against Escritor because in his frequent visits to the Hall of Justice of Las Pias City, he learned from conversations therein that Escritor was living with a man not her husband and that she had an eighteen to twenty-year old son by this man. This prompted him to write to Judge Caoibes as he believed that employees of the judiciary should be respectable and Escritors live-in arrangement did not command respect.[7]

Respondent Escritor testified that when she entered the judiciary in 1999, [8] she was already a widow, her husband having died in 1998. [9] She admitted that she has been living with Luciano Quilapio, Jr. without the benefit of marriage for twenty years and that they have a son. But as a member of the religious sect known as the Jehovahs Witnesses and the Watch Tower and Bible Tract Society, their conjugal arrangement is in conformity with their religious beliefs. In fact, after ten years of living together, she executed on July 28, 1991 a Declaration of Pledging Faithfulness, viz: DECLARATION OF PLEDGING FAITHFULNESS I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D. Quilapio, Jr., as my mate in marital relationship; that I have done all within my ability to obtain legal recognition of this relationship by the proper public authorities and that it is because of having been unable to do so that I therefore make this public declaration pledging faithfulness in this marital relationship. I recognize this relationship as a binding tie before Jehovah God and before all persons to be held to and honored in full accord with the principles of Gods Word. I will continue to seek the means to obtain legal recognition of this relationship by the civil authorities and if at any future time a change in circumstances make this possible, I promise to legalize this union. Signed this 28th day of July 1991.[10] Escritors partner, Quilapio, executed a similar pledge on the same day. [11] Both pledges were executed in Atimonan, Quezon and signed by three witnesses. At the time Escritor executed her pledge, her husband was still alive but living with another woman. Quilapio was likewise married at that time, but had been separated in fact from his wife. During her testimony, Escritor volunteered to present members of her congregation to confirm the truthfulness of their Declarations of Pledging Faithfulness, but Judge Caoibes deemed it unnecessary and considered her identification of her signature and the signature of Quilapio sufficient authentication of the documents. [12] Judge Caoibes endorsed the complaint to Executive Judge Manuel B. Fernandez, Jr., who, in turn, endorsed the same to Court Administrator Alfredo L. Benipayo. On July 17, 2001, the Court, upon recommendation of Acting Court Administrator Zenaida N. Elepao, directed Escritor to comment on the charge against her. In her comment, Escritor reiterated her religious congregations approval of her conjugal arrangement with Quilapio, viz: Herein respondent does not ignore alleged accusation but she reiterates to state with candor that there is no truth as to the veracity of same allegation. Included herewith are documents denominated as Declaration of Pledging Faithfulness (Exhibit 1 and Exhibit 2) duly signed by both respondent and her mate in marital relationship with the witnesses concurring their acceptance to the arrangement as approved by the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine Branch. Same marital arrangement is recognized as a binding tie before JEHOVAH God and before all persons to be held to and honored in full accord with the principles of Gods Word. xxx xxx xxx

Undersigned submits to the just, humane and fair discretion of the Court with verification from the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine Branch . . . to which undersigned believes to be a high authority in relation to her case.[13] Deputy Court Administrator Christopher O. Lock recommended that the case be referred to Executive Judge Bonifacio Sanz Maceda, RTC Branch 255, Las Pias City for investigation, report and recommendation. In the course of Judge Macedas investigation, Escritor again testified that her

congregation allows her conjugal arrangement with Quilapio and it does not consider it immoral. She offered to supply the investigating judge some clippings which explain the basis of her congregations belief and practice regarding her conjugal arrangement. Escritor started living with Quilapio twenty years ago when her husband was still alive but living with another woman. She met this woman who confirmed to her that she was living with her (Escritors) husband. [14] Gregorio Salazar, a member of the Jehovahs Witnesses since 1985, also testified. He had been a presiding minister since 1991 and in such capacity is aware of the rules and regulations of their congregation. He explained the import of and procedure for executing a Declaration of Pledging Faithfulness, viz: Q: Now, insofar as the pre-marital relationship is concern ( sic), can you cite some particular rules and regulations in your congregation? A: Well, we of course, talk to the persons with regards (sic) to all the parties involved and then we request them to execute a Public Declaration of Pledge of faithfulness.

Q: What is that document? A: Declaration of Pledge of faithfulness.

Q: What are the relations of the document Declaration of Pledge of faithfulness, who are suppose (sic) to execute this document? A: This must be signed, the document must be signed by the elders of the congregation; the couple, who is a member (sic) of the congregation, baptized member and true member of the congregation.

Q: What standard rules and regulations do you have in relation with this document? A: Actually, sir, the signing of that document, ah, with the couple has consent to marital relationship (sic) gives the Christian Congregation view that the couple has put themselves on record before God and man that they are faithful to each other. As if that relation is validated by God.

Q: From your explanation, Minister, do you consider it a pledge or a document between the parties, who are members of the congregation? A: It is a pledge and a document. It is a declaration, pledge of a (sic) pledge of faithfulness.

Q: And what does pledge mean to you? A: It means to me that they have contracted, let us say, I am the one who contracted with the opposite member of my congregation, opposite sex, and that this document will give us the right to a marital relationship.

Q: So, in short, when you execute a declaration of pledge of faithfulness, it is a preparation for you to enter a marriage? A: Yes, Sir.

Q: But it does not necessarily mean that the parties, cohabiting or living under the same roof? A: Well, the Pledge of faithfulness document is (sic) already approved as to the marital relationship.

Q: Do you mean to say, Minister, by executing this document the contracting parties have the right to cohabit? A: Can I sir, cite, what the Bible says, the basis of that Pledge of Faithfulness as we Christians follow. The basis is herein stated in the Book of Matthew, Chapter Five, Verse Twentytwo. So, in that verse of the Bible, Jesus said that everyone divorcing his wife, except on

account of fornication, makes her a subject for adultery, and whoever marries a divorced woman commits adultery.[15] Escritor and Quilapio transferred to Salazars Congregation, the Almanza Congregation in Las Pias, in May 2001. The declarations having been executed in Atimonan, Quezon in 1991, Salazar had no personal knowledge of the personal circumstances of Escritor and Quilapio when they executed their declarations. However, when the two transferred to Almanza, Salazar inquired about their status from the Atimonan Congregation, gathered comments of the elders therein, and requested a copy of their declarations. The Almanza Congregation assumed that the personal circumstances of the couple had been considered by the Atimonan Congregation when they executed their declarations. Escritor and Quilapios declarations are recorded in the Watch Tower Central office. They were executed in the usual and approved form prescribed by the Watch Tower Bible and Tract Society which was lifted from the article, Maintaining Marriage in Honor Before God and Men, [16] in the March 15, 1977 issue of the Watch Tower magazine, entitled The Watchtower. The declaration requires the approval of the elders of the Jehovahs Witnesses congregation and is binding within the congregation all over the world except in countries where divorce is allowed. The Jehovahs congregation requires that at the time the declarations are executed, the couple cannot secure the civil authorities approval of the marital relationship because of legal impediments. It is thus standard practice of the congregation to check the couples marital status before giving imprimatur to the conjugal arrangement. The execution of the declaration finds scriptural basis in Matthew 5:32 that when the spouse commits adultery, the offended spouse can remarry. The marital status of the declarants and their respective spouses commission of adultery are investigated before the declarations are executed. Thus, in the case of Escritor, it is presumed that the Atimonan Congregation conducted an investigation on her marital status before the declaration was approved and the declaration is valid everywhere, including the Almanza Congregation. That Escritors and Quilapios declarations were approved are shown by the signatures of three witnesses, the elders in the Atimonan Congregation. Salazar confirmed from the congregations branch office that these three witnesses are elders in the Atimonan Congregation. Although in 1998 Escritor was widowed, thereby lifting the legal impediment to marry on her part, her mate is still not capacitated to remarry. Thus, their declarations remain valid. Once all legal impediments for both are lifted, the couple can already register their marriage with the civil authorities and the validity of the declarations ceases. The elders in the congregations can then solemnize their marriage as authorized by Philippine law. In sum, therefore, insofar as the congregation is concerned, there is nothing immoral about the conjugal arrangement between Escritor and Quilapio and they remain members in good standing in the congregation. [17] Salvador Reyes, a minister at the General de Leon, Valenzuela City Congregation of the Jehovahs Witnesses since 1974 and member of the headquarters of the Watch Tower Bible and Tract Society of the Philippines, Inc., presented the original copy of the magazine article entitled, Maintaining Marriage Before God and Men to which Escritor and Minister Salazar referred in their testimonies. The article appeared in the March 15, 1977 issue of the Watchtowermagazine published in Pennsylvania, U.S.A. Felix S. Fajardo, President of the Watch Tower Bible and Tract Society of the Philippines, Inc., authorized Reyes to represent him in authenticating the article. The article is distributed to the Jehovahs Witnesses congregations which also distribute them to the public. [18] The parties submitted their respective memoranda to the investigating judge. Both stated that the issue for resolution is whether or not the relationship between respondent Escritor and Quilapio is valid and binding in their own religious congregation, the Jehovahs Witnesses. Complainant Estrada adds however, that the effect of the relationship to Escritors administrative liability must likewise be determined. Estrada argued, through counsel, that the Declaration of Pledging Faithfulness recognizes the supremacy of the proper public authorities such that she bound herself to seek means to . . . legalize their union. Thus, even assuming arguendo that the declaration is valid and binding in her congregation, it is binding only to her co-members in the congregation and serves only the internal purpose of displaying to the rest of the congregation that she and her mate are a respectable and morally upright couple. Their religious belief and practice, however, cannot override the norms of conduct required by law for government employees. To rule otherwise would create a dangerous precedent as

those who cannot legalize their live-in relationship can simply join the Jehovahs Witnesses congregation and use their religion as a defense against legal liability. [19] On the other hand, respondent Escritor reiterates the validity of her conjugal arrangement with Quilapio based on the belief and practice of her religion, the Jehovahs Witnesses. She quoted portions of the magazine article entitled, Maintaining Marriage Before God and Men, in her memorandum signed by herself, viz: The Declaration of Pledging of Faithfulness (Exhibits 1 and 2) executed by the respondent and her mate greatly affect the administrative liability of respondent. Jehovahs Witnesses admit and recognize (sic) the supremacy of the proper public authorities in the marriage arrangement. However, it is helpful to understand the relative nature of Caesars authority regarding marriage. From country to country, marriage and divorce legislation presents a multitude of different angles and aspects. Rather than becoming entangled in a confusion of technicalities, the Christian, or the one desiring to become a disciple of Gods Son, can be guided by basic Scriptural principles that hold true in all cases. Gods view is of first concern. So, first of all the person must consider whether that ones present relationship, or the relationship into which he or she contemplates entering, is one that could meet with Gods approval, or whether in itself, it violates the standards of Gods Word. Take, for example, the situation where a man lives with a wife but also spends time living with another woman as a concubine. As long as such a state of concubinage prevails, the relationship of the second woman can never be harmonized with Christian principles, nor could any declaration on the part of the woman or the man make it so. The only right course is cessation of the relationship. Similarly with an incestuous relationship with a member of ones immediate family, or a homosexual relationship or other such situation condemned by Gods Word. It is not the lack of any legal validation that makes such relationships unacceptable; they are in themselves unscriptural and hence, immoral. Hence, a person involved in such a situation could not make any kind of Declaration of Faithfulness, since it would have no merit in Gods eyes. If the relationship is such that it can have Gods approval, then, a second principle to consider is that one should do all one can to establish the honorableness of ones marital union in the eyes of all. (Heb. 13:4). If divorce is possible, then such step should now be taken so that, having obtained the divorce (on whatever legal grounds may be available), the present union can receive civil validation as a recognized marriage. Finally, if the marital relationship is not one out of harmony with the principles of Gods Word, and if one has done all that can reasonably be done to have it recognized by civil authorities and has been blocked in doing so, then, a Declaration Pledging Faithfulness can be signed. In some cases, as has been noted, the extreme slowness of official action may make accomplishing of legal steps a matter of many, many years of effort. Or it may be that the costs represent a crushingly heavy burden that the individual would need years to be able to meet. In such cases, the declaration pledging faithfulness will provide the congregation with the basis for viewing the existing union as honorable while the individual continues conscientiously to work out the legal aspects to the best of his ability. Keeping in mind the basic principles presented, the respondent as a Minister of Jehovah God, should be able to approach the matter in a balanced way, neither underestimating nor overestimating the validation offered by the political state. She always gives primary concern to Gods view of the union. Along with this, every effort should be made to set a fine example of faithfulness and devotion to ones mate, thus, keeping the marriage honorable among all. Such course will bring Gods blessing and result to the honor and praise of the author of marriage, Jehovah God. (1 Cor. 10:31-33) [20] Respondent also brought to the attention of the investigating judge that complainants Memorandum came from Judge Caoibes chambers[21] whom she claims was merely using petitioner to malign her.

In his Report and Recommendation, investigating judge Maceda found Escritors factual allegations credible as they were supported by testimonial and documentary evidence. He also noted that (b)y strict Catholic standards, the live-in relationship of respondent with her mate should fall within the definition of immoral conduct, to wit: that which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community (7 C.J.S. 959) (Delos Reyes vs. Aznar, 179 SCRA, at p. 666). He pointed out, however, that the more relevant question is whether or not to exact from respondent Escritor, a member of Jehovahs Witnesses, the strict moral standards of the Catholic faith in determining her administrative responsibility in the case at bar. [22] The investigating judge acknowledged that religious freedom is a fundamental right which is entitled to the highest priority and the amplest protection among human rights, for it involves the relationship of man to his Creator (at p. 270, EBRALINAG supra, citing Chief Justice Enrique M. Fernandos separate opinion in German vs. Barangan, 135 SCRA 514, 530-531) and thereby recommended the dismissal of the complaint against Escritor.[23] After considering the Report and Recommendation of Executive Judge Maceda, the Office of the Court Administrator, through Deputy Court Administrator (DCA) Lock and with the approval of Court Administrator Presbitero Velasco, concurred with the factual findings of Judge Maceda but departed from his recommendation to dismiss the complaint. DCA Lock stressed that although Escritor had become capacitated to marry by the time she joined the judiciary as her husband had died a year before, it is due to her relationship with a married man, voluntarily carried on, that respondent may still be subject to disciplinary action.[24] Considering the ruling of the Court in Dicdican v. Fernan, et al.[25] that court personnel have been enjoined to adhere to the exacting standards of morality and decency in their professional and private conduct in order to preserve the good name and integrity of the court of justice, DCA Lock found Escritors defense of freedom of religion unavailing to warrant dismissal of the charge of immorality. Accordingly, he recommended that respondent be found guilty of immorality and that she be penalized with suspension of six months and one day without pay with a warning that a repetition of a similar act will be dealt with more severely in accordance with the Civil Service Rules. [26]

II. Issue Whether or not respondent should be found guilty of the administrative charge of gross and immoral conduct. To resolve this issue, it is necessary to determine the sub-issue of whether or not respondents right to religious freedom should carve out an exception from the prevailing jurisprudence on illicit relations for which government employees are held administratively liable.

III. Applicable Laws Respondent is charged with committing gross and immoral conduct under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code which provides, viz: Sec. 46. Discipline: General Provisions. - (a) No officer or employee in the Civil Service shall be suspended or dismissed except for cause as provided by law and after due process. (b) The following shall be grounds for disciplinary action: xxx xxx (5) Disgraceful and immoral conduct; xxx. xxx

Not represented by counsel, respondent, in laymans terms, invokes the religious beliefs and practices and moral standards of her religion, the Jehovahs Witnesses, in asserting that her conjugal arrangement with a man not her legal husband does not constitute disgraceful and immoral conduct for which she should be held administratively liable. While not articulated by respondent, she invokes religious freedom under Article III, Section 5 of the Constitution, which provides, viz: Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.

IV. Old World Antecedents of the American Religion Clauses To understand the life that the religion clauses have taken, it would be well to understand not only its birth in the United States, but its conception in the Old World. One cannot understand, much less intelligently criticize the approaches of the courts and the political branches to religious freedom in the recent past in the United States without a deep appreciation of the roots of these controversies in the ancient and medieval world and in the American experience. [27] This fresh look at the religion clauses is proper in deciding this case of first impression. In primitive times, all of life may be said to have been religious. Every significant event in the primitive mans life, from birth to death, was marked by religious ceremonies. Tribal society survived because religious sanctions effectively elicited adherence to social customs. A person who broke a custom violated a taboo which would then bring upon him the wrathful vengeance of a superhuman mysterious power.[28] Distinction between the religious and non-religious would thus have been meaningless to him. He sought protection from all kinds of evil - whether a wild beast or tribe enemy and lightning or wind - from the same person. The head of the clan or the Old Man of the tribe or the king protected his wards against both human and superhuman enemies. In time, the king not only interceded for his people with the divine powers, but he himself was looked upon as a divine being and his laws as divine decrees.[29] Time came, however, when the function of acting as intermediary between human and spiritual powers became sufficiently differentiated from the responsibility of leading the tribe in war and policing it in peace as to require the full-time services of a special priest class. This saw the birth of the social and communal problem of the competing claims of the king and priest. Nevertheless, from the beginning, the king and not the priest was superior. The head of the tribe was the warrior, and although he also performed priestly functions, he carried out these functions because he was the head and representative of the community.[30] There being no distinction between the religious and the secular, the same authority that promulgated laws regulating relations between man and man promulgated laws concerning mans obligations to the supernatural. This authority was the king who was the head of the state and the source of all law and who only delegated performance of rituals and sacrifice to the priests. The Code of Hammurabi, king of Babylonia, imposed penalties for homicide, larceny, perjury, and other crimes; regulated the fees of surgeons and the wages of masons and tailors and prescribed rules for inheritance of property;[31] and also catalogued the gods and assigned them their places in the divine hierarchy so as to put Hammurabis own god to a position of equality with existing gods. [32] In sum, the relationship of religion to the state (king) in pre-Hebreic times may be characterized as a union of the two forces, with the state almost universally the dominant partner.[33] With the rise of the Hebrew state, a new term had to be coined to describe the relation of the Hebrew state with the Mosaic religion: theocracy. The authority and power of the state was ascribed to God. [34] The Mosaic creed was not merely regarded as the religion of the state, it was (at least until Saul) the state itself. Among the Hebrews, patriarch, prophet, and priest preceded king and prince. As man of God, Moses decided when the people should travel and when to pitch camp, when they should make war

and when peace. Saul and David were made kings by the prophet Samuel, disciple of Eli the priest. Like the Code of Hammurabi, the Mosaic code combined civil laws with religious mandates, but unlike the Hammurabi Code, religious laws were not of secondary importance. On the contrary, religious motivation was primary and all-embracing: sacrifices were made and Israel was prohibited from exacting usury, mistreating aliens or using false weights, all because God commanded these. Moses of the Bible led not like the ancient kings. The latter used religion as an engine to advance the purposes of the state. Hammurabi unified Mesopotamia and established Babylon as its capital by elevating its city-god to a primary position over the previous reigning gods. [35] Moses, on the other hand, capitalized on the natural yearnings of the Hebrew slaves for freedom and independence to further Gods purposes. Liberation and Exodus were preludes to Sinai and the receipt of the Divine Law. The conquest of Canaan was a preparation for the building of the temple and the full worship of God. [36] Upon the monotheism of Moses was the theocracy of Israel founded. This monotheism, more than anything else, charted not only the future of religion in western civilization, but equally, the future of the relationship between religion and state in the west. This fact is acknowledged by many writers, among whom is Northcott who pointed out, viz: Historically it was the Hebrew and Christian conception of a single and universal God that introduced a religious exclusivism leading to compulsion and persecution in the realm of religion. Ancient religions were regarded as confined to each separate people believing in them, and the question of change from one religious belief to another did not arise . It was not until an exclusive fellowship, that the questions of proselytism, change of belief and liberty of religion arose. [37] (emphasis supplied) The Hebrew theocracy existed in its pure form from Moses to Samuel. In this period, religion was not only superior to the state, but it was all of the state. The Law of God as transmitted through Moses and his successors was the whole of government. With Saul, however, the state rose to be the rival and ultimately, the master, of religion. Saul and David each received their kingdom from Samuel the prophet and disciple of Eli the priest, but soon the king dominated prophet and priest. Saul disobeyed and even sought to slay Samuel the prophet of God. [38] Under Solomon, the subordination of religion to state became complete; he used religion as an engine to further the states purposes. He reformed the order of priesthood established by Moses because the high priest under that order endorsed the claim of his rival to the throne. [39] The subordination of religion to the state was also true in pre-Christian Rome which engaged in emperor-worship. When Augustus became head of the Roman state and the priestly hierarchy, he placed religion at a high esteem as part of a political plan to establish the real religion of pre-Christian Rome - the worship of the head of the state. He set his great uncle Julius Caesar among the gods, and commanded that worship of Divine Julius should not be less than worship of Apollo, Jupiter and other gods. When Augustus died, he also joined the ranks of the gods, as other emperors before him. [40] The onset of Christianity, however, posed a difficulty to the emperor as the Christians dogmatic exclusiveness prevented them from paying homage to publicly accepted gods. In the first two centuries after the death of Jesus, Christians were subjected to persecution. By the time of the emperor Trajan, Christians were considered outlaws. Their crime was hatred of the human race, placing them in the same category as pirates and brigands and other enemies of mankind who were subject to summary punishments.[41] In 284, Diocletian became emperor and sought to reorganize the empire and make its administration more efficient. But the closely-knit hierarchically controlled church presented a serious problem, being a state within a state over which he had no control. He had two options: either to force it into submission and break its power or enter into an alliance with it and procure political control over it. He opted for force and revived the persecution, destroyed the churches, confiscated sacred books, imprisoned the clergy and by torture forced them to sacrifice.[42] But his efforts proved futile.

The later emperor, Constantine, took the second option of alliance. Constantine joined with Galerius and Licinius, his two co-rulers of the empire, in issuing an edict of toleration to Christians on condition that nothing is done by them contrary to discipline. [43] A year later, after Galerius died, Constantine and Licius jointly issued the epochal Edict of Milan (312 or 313), a document of monumental importance in the history of religious liberty. It provided that liberty of worship shall not be denied to any, but that the mind and will of every individual shall be free to manage divine affairs according to his own choice. (emphasis supplied) Thus, all restrictive statutes were abrogated and it was enacted that every person who cherishes the desire to observe the Christian religion shall freely and unconditionally proceed to observe the same without let or hindrance. Furthermore, it was provided that the same free and open power to follow their own religion or worship is granted also to others, in accordance with the tranquillity of our times, in order that every person may have free opportunity to worship the object of his choice.(emphasis supplied)[44] Before long, not only did Christianity achieve equal status, but acquired privilege, then prestige, and eventually, exclusive power. Religion became an engine of state policy as Constantine considered Christianity a means of unifying his complex empire. Within seven years after the Edict of Milan, under the emperors command, great Christian edifices were erected, the clergy were freed from public burdens others had to bear, and private heathen sacrifices were forbidden. The favors granted to Christianity came at a price: state interference in religious affairs. Constantine and his successors called and dismissed church councils, and enforced unity of belief and practice. Until recently the church had been the victim of persecution and repression, but this time it welcomed the states persecution and repression of the nonconformist and the orthodox on the belief that it was better for heretics to be purged of their error than to die unsaved. Both in theory as in practice, the partnership between church and state was not easy. It was a constant struggle of one claiming dominance over the other. In time, however, after the collapse and disintegration of the Roman Empire, and while monarchical states were gradually being consolidated among the numerous feudal holdings, the church stood as the one permanent, stable and universal power. Not surprisingly, therefore, it claimed not merely equality but superiority over the secular states. This claim, symbolized by Pope Leos crowning of Charlemagne, became the churchs accepted principle of its relationship to the state in the Middle Ages. As viewed by the church, the union of church and state was now a union of the state in the church. The rulers of the states did not concede to this claim of supremacy. Thus, while Charlemagne received his crown from the Pope, he himself crowned his own son as successor to nullify the inference of supremacy. [45] The whole history of medieval Europe was a struggle for supremacy between prince and Pope and the resulting religious wars and persecution of heretics and nonconformists. At about the second quarter of the 13th century, the Inquisition was established, the purpose of which was the discovery and extermination of heresy. Accused heretics were tortured with the approval of the church in the bull Ad extirpanda issued by Pope Innocent IV in 1252. The corruption and abuses of the Catholic Church spurred the Reformation aimed at reforming the Catholic Church and resulting in the establishment of Protestant churches. While Protestants are accustomed to ascribe to the Reformation the rise of religious liberty and its acceptance as the principle governing the relations between a democratic state and its citizens, history shows that it is more accurate to say that the same causes that gave rise to the Protestant revolution also resulted in the widespread acceptance of the principle of religious liberty, and ultimately of the principle of separation of church and state.[46] Pleas for tolerance and freedom of conscience can without doubt be found in the writings of leaders of the Reformation. But just as Protestants living in the countries of papists pleaded for toleration of religion, so did the papists that lived where Protestants were dominant. [47] Papist and Protestant governments alike accepted the idea of cooperation between church and state and regarded as essential to national unity the uniformity of at least the outward manifestations of religion. [48] Certainly, Luther, leader of the Reformation, stated that neither pope, nor bishop, nor any man whatever has the right of making one syllable binding on a Christian man, unless it be done with his own consent. [49] But when the tables had turned and he was no longer the hunted heretic, he likewise stated when he made an alliance with the secular powers that (h)eretics are not to be disputed with, but to be condemned unheard, and whilst they perish by fire, the faithful ought to pursue the evil to its source, and bathe their hands in the

blood of the Catholic bishops, and of the Pope, who is a devil in disguise. [50] To Luther, unity among the peoples in the interests of the state was an important consideration. Other personalities in the Reformation such as Melanchton, Zwingli and Calvin strongly espoused theocracy or the use of the state as an engine to further religion. In establishing theocracy in Geneva, Calvin made absence from the sermon a crime, he included criticism of the clergy in the crime of blasphemy punishable by death, and to eliminate heresy, he cooperated in the Inquisition. [51] There were, however, those who truly advocated religious liberty. Erasmus, who belonged to the Renaissance than the Reformation, wrote that (t)he terrible papal edict, the more terrible imperial edict, the imprisonments, the confiscations, the recantations, the fagots and burnings, all these things I can see accomplish nothing except to make the evil more widespread. [52] The minority or dissident sects also ardently advocated religious liberty. The Anabaptists, persecuted and despised, along with the Socinians (Unitarians) and the Friends of the Quakers founded by George Fox in the 17 th century, endorsed the supremacy and freedom of the individual conscience. They regarded religion as outside the realm of political governments.[53] The English Baptists proclaimed that the magistrate is not to meddle with religion or matters of conscience, nor compel men to this or that form of religion. [54] Thus, out of the Reformation, three rationalizations of church-state relations may be distinguished: the Erastian (after the German doctor Erastus), the theocratic, and the separatist. The first assumed state superiority in ecclesiastical affairs and the use of religion as an engine of state policy as demonstrated by Luthers belief that civic cohesion could not exist without religious unity so that coercion to achieve religious unity was justified. The second was founded on ecclesiastical supremacy and the use of state machinery to further religious interests as promoted by Calvin. The third, which was yet to achieve ultimate and complete expression in the New World, was discernibly in its incipient form in the arguments of some dissident minorities that the magistrate should not intermeddle in religious affairs.[55] After the Reformation, Erastianism pervaded all Europe except for Calvins theocratic Geneva. In England, perhaps more than in any other country, Erastianism was at its height. To illustrate, a statute was enacted by Parliament in 1678, which, to encourage woolen trade, imposed on all clergymen the duty of seeing to it that no person was buried in a shroud made of any substance other than wool.[56] Under Elizabeth, supremacy of the crown over the church was complete: ecclesiastical offices were regulated by her proclamations, recusants were fined and imprisoned, Jesuits and proselytizing priests were put to death for high treason, the thirty-nine Articles of the Church of England were adopted and English Protestantism attained its present doctrinal status. [57] Elizabeth was to be recognized as the only Supreme Governor of this realm . . . as well in all spiritual or ecclesiastical things or causes as temporal. She and her successors were vested, in their dominions, with all manner of jurisdictions, privileges, and preeminences, in any wise touching or concerning any spiritual or ecclesiastical jurisdiction.[58] Later, however, Cromwell established the constitution in 1647 which granted full liberty to all Protestant sects, but denied toleration to Catholics. [59] In 1689, William III issued the Act of Toleration which established a de facto toleration for all except Catholics. The Catholics achieved religious liberty in the 19th century when the Roman Catholic Relief Act of 1829 was adopted. The Jews followed suit in 1858 when they were finally permitted to sit in Parliament.[60] When the representatives of the American states met in Philadelphia in 1787 to draft the constitutional foundation of the new republic, the theocratic state which had flourished intermittently in Israel, Judea, the Holy Roman Empire and Geneva was completely gone. The prevailing church-state relationship in Europe was Erastianism embodied in the system of jurisdictionalism whereby one faith was favored as the official state-supported religion, but other faiths were permitted to exist with freedom in various degrees. No nation had yet adopted as the basis of its church-state relations the principle of the mutual independence of religion and government and the concomitant principle that neither might be used as an engine to further the policies of the other, although the principle was in its seminal form in the arguments of some dissident minorities and intellectual leaders of the Renaissance. The religious wars of 16th and 17th century Europe were a thing of the past by the time America declared its independence from the Old World, but their memory was still vivid in the minds of the Constitutional Fathers as expressed by the United States Supreme Court, viz:

The centuries immediately before and contemporaneous with the colonization of America had been filled with turmoil, civil strife, and persecution generated in large part by established sects determined to maintain their absolute political and religious supremacy. With the power of government supporting them, at various times and places, Catholics had persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had persecuted other protestant sects, Catholics of one shade of belief had persecuted Catholics of another shade of belief, and all of these had from time to time persecuted Jews. In efforts to force loyalty to whatever religious group happened to be on top and in league with the government of a particular time and place, men and women had been fined, cast in jail, cruelly tortured, and killed. Among the offenses for which these punishments had been inflicted were such things as speaking disrespectfully of the views of ministers of government-established churches, non-attendance at those churches, expressions of non-belief in their doctrines, and failure to pay taxes and tithes to support them. [61] In 1784, James Madison captured in this statement the entire history of church-state relations in Europe up to the time the United States Constitution was adopted, viz: Torrents of blood have been spilt in the world in vain attempts of the secular arm to extinguish religious discord, by proscribing all differences in religious opinions. [62] In sum, this history shows two salient features: First, with minor exceptions, the history of churchstate relationships was characterized by persecution, oppression, hatred, bloodshed, and war, all in the name of the God of Love and of the Prince of Peace. Second, likewise with minor exceptions, this history witnessed the unscrupulous use of religion by secular powers to promote secular purposes and policies, and the willing acceptance of that role by the vanguards of religion in exchange for the favors and mundane benefits conferred by ambitious princes and emperors in exchange for religions invaluable service. This was the context in which the unique experiment of the principle of religious freedom and separation of church and state saw its birth in American constitutional democracy and in human history.[63]

V. Factors Contributing to the Adoption of the American Religion Clauses Settlers fleeing from religious persecution in Europe, primarily in Anglican-dominated England, established many of the American colonies. British thought pervaded these colonies as the immigrants brought with them their religious and political ideas from England and English books and pamphlets largely provided their cultural fare. [64] But although these settlers escaped from Europe to be freed from bondage of laws which compelled them to support and attend government favored churches, some of these settlers themselves transplanted into American soil the oppressive practices they escaped from. The charters granted by the English Crown to the individuals and companies designated to make the laws which would control the destinies of the colonials authorized them to erect religious establishments, which all, whether believers or not, were required to support or attend. [65] At one time, six of the colonies established a state religion. Other colonies, however, such as Rhode Island and Delaware tolerated a high degree of religious diversity. Still others, which originally tolerated only a single religion, eventually extended support to several different faiths. [66] This was the state of the American colonies when the unique American experiment of separation of church and state came about. The birth of the experiment cannot be attributed to a single cause or event. Rather, a number of interdependent practical and ideological factors contributed in bringing it forth. Among these were the English Act of Toleration of 1689, the multiplicity of sects, the lack of church affiliation on the part of most Americans, the rise of commercial intercourse, the exigencies of the Revolutionary War, the Williams-Penn tradition and the success of their experiments, the writings of Locke, the social contract theory, the Great Awakening, and the influence of European rationalism and deism.[67] Each of these factors shall be briefly discussed.

First, the practical factors. Englands policy of opening the gates of the American colonies to different faiths resulted in the multiplicity of sects in the colonies. With an Erastian justification, English lords chose to forego protecting what was considered to be the true and eternal church of a particular time in order to encourage trade and commerce. The colonies were large financial investments which would be profitable only if people would settle there. It would be difficult to engage in trade with persons one seeks to destroy for religious belief, thus tolerance was a necessity. This tended to distract the colonies from their preoccupations over their religion and its exclusiveness, encouraging them to think less of the Church and more of the State and of commerce. [68] The diversity brought about by the colonies open gates encouraged religious freedom and non-establishment in several ways. First, as there were too many dissenting sects to abolish, there was no alternative but to learn to live together. Secondly, because of the daily exposure to different religions, the passionate conviction in the exclusive rightness of ones religion, which impels persecution for the sake of ones religion, waned. Finally, because of the great diversity of the sects, religious uniformity was not possible, and without such uniformity, establishment could not survive. [69] But while there was a multiplicity of denomination, paradoxically, there was a scarcity of adherents. Only about four percent of the entire population of the country had a church affiliation at the time the republic was founded. [70] This might be attributed to the drifting to the American colonies of the skepticism that characterized European Enlightenment. [71] Economic considerations might have also been a factor. The individualism of the American colonist, manifested in the multiplicity of sects, also resulted in much unaffiliated religion which treated religion as a personal non-institutional matter. The prevalence of lack of church affiliation contributed to religious liberty and disestablishment as persons who were not connected with any church were not likely to persecute others for similar independence nor accede to compulsory taxation to support a church to which they did not belong. [72] However, for those who were affiliated to churches, the colonial policy regarding their worship generally followed the tenor of the English Act of Toleration of 1689. In England, this Act conferred on Protestant dissenters the right to hold public services subject to registration of their ministers and places of worship.[73] Although the toleration accorded to Protestant dissenters who qualified under its terms was only a modest advance in religious freedom, it nevertheless was of some influence to the American experiment.[74] Even then, for practical considerations, concessions had to be made to other dissenting churches to ensure their cooperation in the War of Independence which thus had a unifying effect on the colonies. Next, the ideological factors. First, the Great Awakening in mid-18th century, an evangelical religious revival originating in New England, caused a break with formal church religion and a resistance to coercion by established churches. This movement emphasized an emotional, personal religion that appealed directly to the individual, putting emphasis on the rights and duties of the individual conscience and its answerability exclusively to God. Thus, although they had no quarrel with orthodox Christian theology as in fact they were fundamentalists, this group became staunch advocates of separation of church and state.[75] Then there was the Williams-Penn tradition. Roger Williams was the founder of the colony of Rhode Island where he established a community of Baptists, Quakers and other nonconformists. In this colony, religious freedom was not based on practical considerations but on the concept of mutual independence of religion and government. In 1663, Rhode Island obtained a charter from the British crown which declared that settlers have it much on their heart to hold forth a livelie experiment that a most flourishing civil state may best be maintained . . . with full libertie in religious concernments. [76] In Williams pamphlet, The Bloudy Tenent of Persecution for cause of Conscience, discussed in a Conference between Truth and Peace,[77] he articulated the philosophical basis for his argument of religious liberty. To him, religious freedom and separation of church and state did not constitute two but only one principle. Religious persecution is wrong because it confounds the Civil and Religious and because States . . . are proved essentially Civil. The power of true discerning the true fear of God is not one of the powers that the people have transferred to Civil Authority. [78]Williams Bloudy Tenet is considered an epochal milestone in the history of religious freedom and the separation of church and state.[79]

William Penn, proprietor of the land that became Pennsylvania, was also an ardent advocate of toleration, having been imprisoned for his religious convictions as a member of the despised Quakers. He opposed coercion in matters of conscience because imposition, restraint and persecution for conscience sake, highly invade the Divine prerogative. Aside from his idealism, proprietary interests made toleration in Pennsylvania necessary. He attracted large numbers of settlers by promising religious toleration, thus bringing in immigrants both from the Continent and Britain. At the end of the colonial period, Pennsylvania had the greatest variety of religious groups. Penn was responsible in large part for the Concessions and agreements of the Proprietors, Freeholders, and inhabitants of West Jersey, in America, a monumental document in the history of civil liberty which provided among others, for liberty of conscience.[80] The Baptist followers of Williams and the Quakers who came after Penn continued the tradition started by the leaders of their denominations. Aside from the Baptists and the Quakers, the Presbyterians likewise greatly contributed to the evolution of separation and freedom. [81] The Constitutional fathers who convened in Philadelphia in 1787, and Congress and the states that adopted the First Amendment in 1791 were very familiar with and strongly influenced by the successful examples of Rhode Island and Pennsylvania.[82] Undeniably, John Locke and the social contract theory also contributed to the American experiment. The social contract theory popularized by Locke was so widely accepted as to be deemed self-evident truth in Americas Declaration of Independence. With the doctrine of natural rights and equality set forth in the Declaration of Independence, there was no room for religious discrimination. It was difficult to justify inequality in religious treatment by a new nation that severed its political bonds with the English crown which violated the self-evident truth that all men are created equal. [83] The social contract theory was applied by many religious groups in arguing against establishment, putting emphasis on religion as a natural right that is entirely personal and not within the scope of the powers of a political body. That Locke and the social contract theory were influential in the development of religious freedom and separation is evident from the memorial presented by the Baptists to the Continental Congress in 1774, viz: Men unite in society, according to the great Mr. Locke, with an intention in every one the better to preserve himself, his liberty and property. The power of the society, or Legislature constituted by them, can never be supposed to extend any further than the common good, but is obliged to secure every ones property. To give laws, to receive obedience, to compel with the sword, belong to none but the civil magistrate; and on this ground we affirm that the magistrates power extends not to establishing any articles of faith or forms of worship, by force of laws; for laws are of no force without penalties. The care of souls cannot belong to the civil magistrate, because his power consists only in outward force; but pure and saving religion consists in the inward persuasion of the mind, without which nothing can be acceptable to God.[84] (emphasis supplied) The idea that religion was outside the jurisdiction of civil government was acceptable to both the religionist and rationalist. To the religionist, God or Christ did not desire that government have that jurisdiction (render unto Caesar that which is Caesars; my kingdom is not of this world) and to the rationalist, the power to act in the realm of religion was not one of the powers conferred on government as part of the social contract.[85] Not only the social contract theory drifted to the colonies from Europe. Many of the leaders of the Revolutionary and post-revolutionary period were also influenced by European deism and rationalism,[86] in general, and some were apathetic if not antagonistic to formal religious worship and institutionalized religion. Jefferson, Paine, John Adams, Washington, Franklin, Madison, among others were reckoned to be among the Unitarians or Deists. Unitarianism and Deism contributed to the emphasis on secular interests and the relegation of historic theology to the background. [87] For these men of the enlightenment, religion should be allowed to rise and fall on its own, and the state must be protected from the clutches of the church whose entanglements has caused intolerance and corruption as witnessed throughout history.[88] Not only the leaders but also the masses embraced rationalism at the end of the eighteenth century, accounting for the popularity of Paines Age of Reason.[89]

Finally, the events leading to religious freedom and separation in Virginia contributed significantly to the American experiment of the First Amendment. Virginia was the first state in the history of the world to proclaim the decree of absolute divorce between church and state. [90] Many factors contributed to this, among which were that half to two-thirds of the population were organized dissenting sects, the Great Awakening had won many converts, the established Anglican Church of Virginia found themselves on the losing side of the Revolution and had alienated many influential laymen with its identification with the Crowns tyranny, and above all, present in Virginia was a group of political leaders who were devoted to liberty generally,[91] who had accepted the social contract as self-evident, and who had been greatly influenced by Deism and Unitarianism. Among these leaders were Washington, Patrick Henry, George Mason, James Madison and above the rest, Thomas Jefferson. The first major step towards separation in Virginia was the adoption of the following provision in the Bill of Rights of the states first constitution: That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other. [92] (emphasis supplied) The adoption of the Bill of Rights signified the beginning of the end of establishment. Baptists, Presbyterians and Lutherans flooded the first legislative assembly with petitions for abolition of establishment. While the majority of the population were dissenters, a majority of the legislature were churchmen. The legislature compromised and enacted a bill in 1776 abolishing the more oppressive features of establishment and granting exemptions to the dissenters, but not guaranteeing separation. It repealed the laws punishing heresy and absence from worship and requiring the dissenters to contribute to the support of the establishment. [93] But the dissenters were not satisfied; they not only wanted abolition of support for the establishment, they opposed the compulsory support of their own religion as others. As members of the established church would not allow that only they would pay taxes while the rest did not, the legislature enacted in 1779 a bill making permanent the establishments loss of its exclusive status and its power to tax its members; but those who voted for it did so in the hope that a general assessment bill would be passed. Without the latter, the establishment would not survive. Thus, a bill was introduced in 1779 requiring every person to enroll his name with the county clerk and indicate which society for the purpose of Religious Worship he wished to support. On the basis of this list, collections were to be made by the sheriff and turned over to the clergymen and teachers designated by the religious congregation. The assessment of any person who failed to enroll in any society was to be divided proportionately among the societies.[94] The bill evoked strong opposition. In 1784, another bill, entitled Bill Establishing a Provision for Teachers of the Christian Religion was introduced requiring all persons to pay a moderate tax or contribution annually for the support of the Christian religion, or of some Christian church, denomination or communion of Christians, or for some form of Christian worship.[95] This likewise aroused the same opposition to the 1779 bill. The most telling blow against the 1784 bill was the monumental Memorial and Remonstrance against Religious Assessments written by Madison and widely distributed before the reconvening of legislature in the fall of 1785.[96] It stressed natural rights, the governments lack of jurisdiction over the domain of religion, and the social contract as the ideological basis of separation while also citing practical considerations such as loss of population through migration. He wrote, viz: Because we hold it for a fundamental and undeniable truth, that religion, or the duty which we owe to our creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence. The religion, then, of every man, must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is, in its nature, an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated in their own minds, cannot follow the dictates of other men; it is unalienable, also, because what is here a right towards men, is a duty towards the creator. It is the duty of every man to render the creator such homage, and such only as he believes to be acceptable to him; this duty

is precedent, both in order of time and degree of obligation, to the claims of civil society. Before any man can be considered as a member of civil society, he must be considered as a subject of the governor of the universe; and if a member of civil society, who enters into any subordinate association, must always do it with a reservation of his duty to the general authority, much more must every man who becomes a member of any particular civil society do it with the saving his allegiance to the universal sovereign.[97] (emphases supplied) Madison articulated in the Memorial the widely held beliefs in 1785 as indicated by the great number of signatures appended to the Memorial. The assessment bill was speedily defeated. Taking advantage of the situation, Madison called up a much earlier 1779 bill of Jefferson which had not been voted on, the Bill for Establishing Religious Freedom, and it was finally passed in January 1786. It provided, viz: Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burdens, or by civil incapacitations, tend not only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy Author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do; xxx xxx xxx

Be it therefore enacted by the General Assembly. That no man shall be compelled to frequent or support any religious worship, place or ministry whatsoever, nor shall be enforced, restrained, molested or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or beliefs, but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities. [98] (emphases supplied) This statute forbade any kind of taxation in support of religion and effectually ended any thought of a general or particular establishment in Virginia. [99] But the passage of this law was obtained not only because of the influence of the great leaders in Virginia but also because of substantial popular support coming mainly from the two great dissenting sects, namely the Presbyterians and the Baptists. The former were never established in Virginia and an underprivileged minority of the population. This made them anxious to pull down the existing state church as they realized that it was impossible for them to be elevated to that privileged position. Apart from these expediential considerations, however, many of the Presbyterians were sincere advocates of separation [100] grounded on rational, secular arguments and to the language of natural religion.[101] Influenced by Roger Williams, the Baptists, on the other hand, assumed that religion was essentially a matter of concern of the individual and his God, i.e., subjective, spiritual and supernatural, having no relation with the social order. [102] To them, the Holy Ghost was sufficient to maintain and direct the Church without governmental assistance and state-supported religion was contrary ti the spirit of the Gospel.[103] Thus, separation was necessary.[104] Jeffersons religious freedom statute was a milestone in the history of religious freedom. The United States Supreme Court has not just once acknowledged that the provisions of the First Amendment of the U.S. Constitution had the same objectives and intended to afford the same protection against government interference with religious liberty as the Virginia Statute of Religious Liberty. Even in the absence of the religion clauses, the principle that government had no power to legislate in the area of religion by restricting its free exercise or establishing it was implicit in the Constitution of 1787. This could be deduced from the prohibition of any religious test for federal office in Article VI of the Constitution and the assumed lack of power of Congress to act on any subject not expressly mentioned in the Constitution.[105] However, omission of an express guaranty of religious freedom and other natural rights nearly prevented the ratification of the Constitution. [106] In the ratifying conventions of almost every state, some objection was expressed to the absence of a restriction on the Federal Government as regards legislation on religion.[107] Thus, in 1791, this restriction was made explicit with the adoption of the

religion clauses in the First Amendment as they are worded to this day, with the first part usually referred to as the Establishment Clause and the second part, the Free Exercise Clause, viz: Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.

VI.

Religion Clauses in the United States: Concept, Jurisprudence, Standards

With the widespread agreement regarding the value of the First Amendment religion clauses comes an equally broad disagreement as to what these clauses specifically require, permit and forbid. No agreement has been reached by those who have studied the religion clauses as regards its exact meaning and the paucity of records in Congress renders it difficult to ascertain its meaning. [108] Consequently, the jurisprudence in this area is volatile and fraught with inconsistencies whether within a Court decision or across decisions. One source of difficulty is the difference in the context in which the First Amendment was adopted and in which it is applied today. In the 1780s, religion played a primary role in social life - i.e., family responsibilities, education, health care, poor relief, and other aspects of social life with significant moral dimension - while government played a supportive and indirect role by maintaining conditions in which these activities may be carried out by religious or religiously-motivated associations. Today, government plays this primary role and religion plays the supportive role. [109] Government runs even family planning, sex education, adoption and foster care programs. [110] Stated otherwise and with some exaggeration, (w)hereas two centuries ago, in matters of social life which have a significant moral dimension, government was the handmaid of religion, today religion, in its social responsibilities, as contrasted with personal faith and collective worship, is the handmaid of government. [111] With government regulation of individual conduct having become more pervasive, inevitably some of those regulations would reach conduct that for some individuals are religious. As a result, increasingly, there may be inadvertent collisions between purely secular government actions and religion clause values. [112] Parallel to this expansion of government has been the expansion of religious organizations in population, physical institutions, types of activities undertaken, and sheer variety of denominations, sects and cults. Churches run day-care centers, retirement homes, hospitals, schools at all levels, research centers, settlement houses, halfway houses for prisoners, sports facilities, theme parks, publishing houses and mass media programs. In these activities, religious organizations complement and compete with commercial enterprises, thus blurring the line between many types of activities undertaken by religious groups and secular activities. Churches have also concerned themselves with social and political issues as a necessary outgrowth of religious faith as witnessed in pastoral letters on war and peace, economic justice, and human life, or in ringing affirmations for racial equality on religious foundations. Inevitably, these developments have brought about substantial entanglement of religion and government. Likewise, the growth in population density, mobility and diversity has significantly changed the environment in which religious organizations and activities exist and the laws affecting them are made. It is no longer easy for individuals to live solely among their own kind or to shelter their children from exposure to competing values. The result is disagreement over what laws should require, permit or prohibit;[113] and agreement that if the rights of believers as well as non-believers are all to be respected and given their just due, a rigid, wooden interpretation of the religion clauses that is blind to societal and political realities must be avoided.[114] Religion cases arise from different circumstances. The more obvious ones arise from a government action which purposely aids or inhibits religion. These cases are easier to resolve as, in general, these actions are plainly unconstitutional. Still, this kind of cases poses difficulty in ascertaining proof of intent to aid or inhibit religion.[115] The more difficult religion clause cases involve government action with a secular purpose and general applicability which incidentally or inadvertently aids or burdens religious exercise. In Free Exercise Clause cases, these government actions are referred to as those with

burdensome effect on religious exercise even if the government action is not religiously motivated. [116] Ideally, the legislature would recognize the religions and their practices and would consider them, when practical, in enacting laws of general application. But when the legislature fails to do so, religions that are threatened and burdened turn to the courts for protection. [117] Most of these free exercise claims brought to the Court are for exemption, not invalidation of the facially neutral law that has a burdensome effect.[118] With the change in political and social context and the increasing inadvertent collisions between law and religious exercise, the definition of religion for purposes of interpreting the religion clauses has also been modified to suit current realities. Defining religion is a difficult task for even theologians, philosophers and moralists cannot agree on a comprehensive definition. Nevertheless, courts must define religion for constitutional and other legal purposes. [119] It was in the 1890 case of Davis v. Beason[120] that the United States Supreme Court first had occasion to define religion, viz: The term religion has reference to ones views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will. It is often confounded with the cultus or form of worship of a particular sect, but is distinguishable from the latter. The First Amendment to the Constitution, in declaring that Congress shall make no law respecting the establishment of religion, or forbidding the free exercise thereof, was intended to allow everyone under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets, or the modes of worship of any sect. [121] The definition was clearly theistic which was reflective of the popular attitudes in 1890. In 1944, the Court stated in United States v. Ballard[122] that the free exercise of religion embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths.[123]By the 1960s, American pluralism in religion had flourished to include non-theistic creeds from Asia such as Buddhism and Taoism. [124] In 1961, the Court, in Torcaso v. Watkins,[125] expanded the term religion to non-theistic beliefs such as Buddhism, Taoism, Ethical Culture, and Secular Humanism. Four years later, the Court faced a definitional problem in United States v. Seeger[126] which involved four men who claimed conscientious objector status in refusing to serve in the Vietnam War. One of the four, Seeger, was not a member of any organized religion opposed to war, but when specifically asked about his belief in a Supreme Being, Seeger stated that you could call (it) a belief in a Supreme Being or God. These just do not happen to be the words that I use. Forest Peter, another one of the four claimed that after considerable meditation and reflection on values derived from the Western religious and philosophical tradition, he determined that it would be a violation of his moral code to take human life and that he considered this belief superior to any obligation to the state. The Court avoided a constitutional question by broadly interpreting not the Free Exercise Clause, but the statutory definition of religion in the Universal Military Training and Service Act of 1940 which exempt from combat anyone who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. Speaking for the Court, Justice Clark ruled, viz: Congress, in using the expression Supreme Being rather than the designation God, was merely clarifying the meaning of religious tradition and belief so as to embrace all religions and to exclude essentially political, sociological, or philosophical views (and) the test of belief in relation to a Supreme Being is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to the orthodox belief in God. (emphasis supplied) The Court was convinced that Seeger, Peter and the others were conscientious objectors possessed of such religious belief and training. Federal and state courts have expanded the definition of religion in Seeger to include even nontheistic beliefs such as Taoism or Zen Buddhism. It has been proposed that basically, a creed must meet four criteria to qualify as religion under the First Amendment. First, there must be belief in God or some

parallel belief that occupies a central place in the believers life. Second, the religion must involve a moral code transcending individual belief, i.e., it cannot be purely subjective. Third, a demonstrable sincerity in belief is necessary, but the court must not inquire into the truth or reasonableness of the belief. [127] Fourth, there must be some associational ties, [128] although there is also a view that religious beliefs held by a single person rather than being part of the teachings of any kind of group or sect are entitled to the protection of the Free Exercise Clause.[129] Defining religion is only the beginning of the difficult task of deciding religion clause cases. Having hurdled the issue of definition, the court then has to draw lines to determine what is or is not permissible under the religion clauses. In this task, the purpose of the clauses is the yardstick. Their purpose is singular; they are two sides of the same coin. [130] In devoting two clauses to religion, the Founders were stating not two opposing thoughts that would cancel each other out, but two complementary thoughts that apply in different ways in different circumstances. [131] The purpose of the religion clauses - both in the restriction it imposes on the power of the government to interfere with the free exercise of religion and the limitation on the power of government to establish, aid, and support religion - is the protection and promotion of religious liberty .[132] The end, the goal, and the rationale of the religion clauses is this liberty. [133] Both clauses were adopted to prevent government imposition of religious orthodoxy; the great evil against which they are directed is government-induced homogeneity. [134] The Free Exercise Clause directly articulates the common objective of the two clauses and the Establishment Clause specifically addresses a form of interference with religious liberty with which the Framers were most familiar and for which government historically had demonstrated a propensity. [135] In other words, free exercise is the end, proscribing establishment is a necessary means to this end to protect the rights of those who might dissent from whatever religion is established. [136] It has even been suggested that the sense of the First Amendment is captured if it were to read as Congress shall make no law respecting an establishment of religion or otherwise prohibiting the free exercise thereof because the fundamental and single purpose of the two religious clauses is to avoid any infringement on the free exercise of religions[137] Thus, the Establishment Clause mandates separation of church and state to protect each from the other, in service of the larger goal of preserving religious liberty. The effect of the separation is to limit the opportunities for any religious group to capture the state apparatus to the disadvantage of those of other faiths, or of no faith at all [138] because history has shown that religious fervor conjoined with state power is likely to tolerate far less religious disagreement and disobedience from those who hold different beliefs than an enlightened secular state. [139] In the words of the U.S. Supreme Court, the two clauses are interrelated, viz: (t)he structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of the civil authority. [140] In upholding religious liberty as the end goal in religious clause cases, the line the court draws to ensure that government does not establish and instead remains neutral toward religion is not absolutely straight. Chief Justice Burger explains, viz: The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded and none inhibited.[141] (emphasis supplied) Consequently, U.S. jurisprudence has produced two identifiably different, [142] even opposing, strains of jurisprudence on the religion clauses: separation (in the form of strict separation or the tamer version of strict neutrality or separation) and benevolent neutrality or accommodation. A view of the landscape of U.S. religion clause cases would be useful in understanding these two strains, the scope of protection of each clause, and the tests used in religious clause cases. Most of these cases are cited as authorities in Philippine religion clause cases.

A. Free Exercise Clause

The Court first interpreted the Free Exercise Clause in the 1878 case of Reynolds v. United States. This landmark case involved Reynolds, a Mormon who proved that it was his religious duty to have several wives and that the failure to practice polygamy by male members of his religion when circumstances would permit would be punished with damnation in the life to come. Reynolds act of contracting a second marriage violated Section 5352, Revised Statutes prohibiting and penalizing bigamy, for which he was convicted. The Court affirmed Reynolds conviction, using what in jurisprudence would be called the belief-action test which allows absolute protection to belief but not to action. It cited Jeffersons Bill Establishing Religious Freedom which, according to the Court, declares the true distinction between what properly belongs to the Church and what to the State. [144] The bill, making a distinction between belief and action, states in relevant part, viz:
[143]

That to suffer the civil magistrate to intrude his powers into the field of opinion , and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty; that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order .[145] (emphasis supplied) The Court then held, viz: Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order. . . Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifice were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice? So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances. [146] The construct was thus simple: the state was absolutely prohibited by the Free Exercise Clause from regulating individual religious beliefs, but placed no restriction on the ability of the state to regulate religiously motivated conduct. It was logical for belief to be accorded absolute protection because any statute designed to prohibit a particular religious belief unaccompanied by any conduct would most certainly be motivated only by the legislatures preference of a competing religious belief. Thus, all cases of regulation of belief would amount to regulation of religion for religious reasons violative of the Free Exercise Clause. On the other hand, most state regulations of conduct are for public welfare purposes and have nothing to do with the legislatures religious preferences. Any burden on religion that results from state regulation of conduct arises only when particular individuals are engaging in the generally regulated conduct because of their particular religious beliefs. These burdens are thus usually inadvertent and did not figure in the belief-action test. As long as the Court found that regulation address action rather than belief, the Free Exercise Clause did not pose any problem. [147] The Free Exercise Clause thus gave no protection against the proscription of actions even if considered central to a religion unless the legislature formally outlawed the belief itself. [148] This belief-action distinction was held by the Court for some years as shown by cases where the Court upheld other laws which burdened the practice of the Mormon religion by imposing various penalties on polygamy such as the Davis case and Church of Latter Day Saints v. United States . [149] However, more than a century since Reynolds was decided, the Court has expanded the scope of

protection from belief to speech and conduct. But while the belief-action test has been abandoned, the rulings in the earlier Free Exercise cases have gone unchallenged. The belief-action distinction is still of some importance though as there remains an absolute prohibition of governmental proscription of beliefs.
[150]

The Free Exercise Clause accords absolute protection to individual religious convictions and beliefs[151] and proscribes government from questioning a persons beliefs or imposing penalties or disabilities based solely on those beliefs. The Clause extends protection to both beliefs and unbelief. Thus, in Torcaso v. Watkins,[152] a unanimous Court struck down a state law requiring as a qualification for public office an oath declaring belief in the existence of God. The protection also allows courts to look into the good faith of a person in his belief, but prohibits inquiry into the truth of a persons religious beliefs. As held in United States v. Ballard,[153] (h)eresy trials are foreign to the Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Next to belief which enjoys virtually absolute protection, religious speech and expressive religious conduct are accorded the highest degree of protection. Thus, in the 1940 case of Cantwell v. Connecticut,[154] the Court struck down a state law prohibiting door-to-door solicitation for any religious or charitable cause without prior approval of a state agency. The law was challenged by Cantwell, a member of the Jehovahs Witnesses which is committed to active proselytizing. The Court invalidated the state statute as the prior approval necessary was held to be a censorship of religion prohibited by the Free Exercise Clause. The Court held, viz: In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one may seem the rankest error to his neighbor. To persuade others to his point of view, the pleader, as we know, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of citizens of a democracy. [155] Cantwell took a step forward from the protection afforded by the Reynolds case in that it not only affirmed protection of belief but also freedom to act for the propagation of that belief, viz: Thus the Amendment embraces two concepts - freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. . . In every case, the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. (emphasis supplied)[156] The Court stated, however, that government had the power to regulate the times, places, and manner of solicitation on the streets and assure the peace and safety of the community. Three years after Cantwell, the Court in Douglas v. City of Jeanette ,[157] ruled that police could not prohibit members of the Jehovahs Witnesses from peaceably and orderly proselytizing on Sundays merely because other citizens complained. In another case likewise involving the Jehovahs Witnesses, Niemotko v. Maryland,[158] the Court unanimously held unconstitutional a city councils denial of a permit to the Jehovahs Witnesses to use the city park for a public meeting. The city councils refusal was because of the unsatisfactory answers of the Jehovahs Witnesses to questions about Catholicism, military service, and other issues. The denial of the public forum was considered blatant censorship. While protected, religious speech in the public forum is still subject to reasonable time, place and manner regulations similar to non-religious speech. Religious proselytizing in congested areas, for example, may be limited to certain areas to maintain the safe and orderly flow of pedestrians and vehicular traffic as held in the case of Heffron v. International Society for Krishna Consciousness. [159] The least protected under the Free Exercise Clause is religious conduct, usually in the form of unconventional religious practices. Protection in this realm depends on the character of the action and the government rationale for regulating the action. [160] The Mormons religious conduct

of polygamy is an example of unconventional religious practice. As discussed in the Reynolds case above, the Court did not afford protection to the practice. Reynolds was reiterated in the 1890 case of Davis again involving Mormons, where the Court held, viz: (c)rime is not the less odious because sanctioned by what any particular sect may designate as religion. [161] The belief-action test in Reynolds and Davis proved unsatisfactory. Under this test, regulation of religiously dictated conduct would be upheld no matter how central the conduct was to the exercise of religion and no matter how insignificant was the governments non-religious regulatory interest so long as the government is proscribing action and not belief. Thus, the Court abandoned the simplistic beliefaction distinction and instead recognized the deliberate-inadvertent distinction , i.e., the distinction between deliberate state interference of religious exercise for religious reasons which was plainly unconstitutional and governments inadvertent interference with religion in pursuing some secular objective.[162] In the 1940 case of Minersville School District v. Gobitis,[163] the Court upheld a local school board requirement that all public school students participate in a daily flag salute program, including the Jehovahs Witnesses who were forced to salute the American flag in violation of their religious training, which considered flag salute to be worship of a graven image. The Court recognized that the general requirement of compulsory flag salute inadvertently burdened the Jehovah Witnesses practice of their religion, but justified the government regulation as an appropriate means of attaining national unity, which was the basis of national security. Thus, although the Court was already aware of the deliberate-inadvertent distinction in government interference with religion, it continued to hold that the Free Exercise Clause presented no problem to interference with religion that was inadvertent no matter how serious the interference, no matter how trivial the states non-religious objectives, and no matter how many alternative approaches were available to the state to pursue its objectives with less impact on religion, so long as government was acting in pursuit of a secular objective. Three years later, the Gobitis decision was overturned in West Virginia v. Barnette[164] which involved a similar set of facts and issue. The Court recognized that saluting the flag, in connection with the pledges, was a form of utterance and the flag salute program was a compulsion of students to declare a belief. The Court ruled that compulsory unification of opinions leads only to the unanimity of the graveyard and exempt the students who were members of the Jehovahs Witnesses from saluting the flag. A close scrutiny of the case, however, would show that it was decided not on the issue of religious conduct as the Court said, (n)or does the issue as we see it turn on ones possession of particular religious views or the sincerity with which they are held. While religion supplies appellees motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views hold such a compulsory rite to infringe constitutional liberty of the individual. (emphasis supplied)[165] The Court pronounced, however, that, freedoms of speech and of press, of assembly, and of worship . . . are susceptible only of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect. [166] The Court seemed to recognize the extent to which its approach in Gobitis subordinated the religious liberty of political minorities - a specially protected constitutional value - to the common everyday economic and public welfare objectives of the majority in the legislature. This time, even inadvertent interference with religion must pass judicial scrutiny under the Free Exercise Clause with only grave and immediate danger sufficing to override religious liberty. But the seeds of this heightened scrutiny would only grow to a full flower in the 1960s. [167] Nearly a century after Reynolds employed the belief-action test, the Warren Court began the modern free exercise jurisprudence.[168] A two-part balancing test was established in Braunfeld v. Brown[169] where the Court considered the constitutionality of applying Sunday closing laws to Orthodox Jews whose beliefs required them to observe another day as the Sabbath and abstain from commercial activity on Saturday. Chief Justice Warren, writing for the Court, found that the law placed a severe burden on Sabattarian retailers. He noted, however, that since the burden was the indirect effect of a law with a secular purpose, it would violate the Free Exercise Clause only if there were alternative ways of achieving the states interest. He employed a two-part balancing test of validity where the first step was for plaintiff to show that the regulation placed a real burden on his religious exercise. Next, the burden would be upheld only if the state showed that it was pursuing an overriding secular goal by the means which imposed the least burden on religious practices. [170] The Court found that the state had an overriding secular interest in setting aside a single day for rest, recreation and tranquility and there was no alternative means of pursuing this interest but to require Sunday as a uniform rest day.

Two years after came the stricter compelling state interest test in the 1963 case of Sherbert v. Verner.[171] This test was similar to the two-part balancing test in Braunfeld, [172] but this latter test stressed that the state interest was not merely any colorable state interest, but must be paramount and compelling to override the free exercise claim. In this case, Sherbert, a Seventh Day Adventist, claimed unemployment compensation under the law as her employment was terminated for refusal to work on Saturdays on religious grounds. Her claim was denied. She sought recourse in the Supreme Court. In laying down the standard for determining whether the denial of benefits could withstand constitutional scrutiny, the Court ruled, viz: Plainly enough, appellees conscientious objection to Saturday work constitutes no conduct prompted by religious principles of a kind within the reach of state legislation. If, therefore, the decision of the South Carolina Supreme Court is to withstand appellants constitutional challenge, it must be either because her disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or because any incidental burden on the free exercise of appellants religion may be justified by a compelling state interest in the regulation of a subject within the States constitutional power to regulate. . . NAACP v. Button, 371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct 328.[173] (emphasis supplied) The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to merely show a rational relationship of the substantial infringement to the religious right and a colorable state interest. (I)n this highly sensitive constitutional area, [o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation. Thomas v. Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S Ct 315. [174] The Court found that there was no such compelling state interest to override Sherberts religious liberty. It added that even if the state could show that Sherberts exemption would pose serious detrimental effects to the unemployment compensation fund and scheduling of work, it was incumbent upon the state to show that no alternative means of regulations would address such detrimental effects without infringing religious liberty. The state, however, did not discharge this burden. The Court thus carved out for Sherbert an exemption from the Saturday work requirement that caused her disqualification from claiming the unemployment benefits. The Court reasoned that upholding the denial of Sherberts benefits would force her to choose between receiving benefits and following her religion. This choice placed the same kind of burden upon the free exercise of religion as would a fine imposed against (her) for her Saturday worship. This germinal case of Sherbertfirmly established the exemption doctrine, [175] viz: It is certain that not every conscience can be accommodated by all the laws of the land; but when general laws conflict with scruples of conscience, exemptions ought to be granted unless some compelling state interest intervenes. Thus, in a short period of twenty-three years from Gobitis to Sherbert (or even as early as Braunfeld), the Court moved from the doctrine that inadvertent or incidental interferences with religion raise no problem under the Free Exercise Clause to the doctrine that such interferences violate the Free Exercise Clause in the absence of a compelling state interest - the highest level of constitutional scrutiny short of a holding of a per se violation. Thus, the problem posed by the belief-action test and the deliberate-inadvertent distinction was addressed.[176] Throughout the 1970s and 1980s under the Warren, and afterwards, the Burger Court, the rationale in Sherbert continued to be applied. In Thomas v. Review Board[177] and Hobbie v. Unemployment Appeals Division,[178] for example, the Court reiterated the exemption doctrine and held that in the absence of a compelling justification, a state could not withhold unemployment compensation from an employee who resigned or was discharged due to unwillingness to depart from religious practices and beliefs that conflicted with job requirements. But not every governmental refusal to allow an exemption from a regulation which burdens a sincerely held religious belief has been invalidated, even though strict or heightened scrutiny is applied. In United States v. Lee,[179] for instance, the Court using strict scrutiny and referring to Thomas, upheld the federal governments refusal to exempt Amish employers who requested for exemption from paying social security taxes on wages on the ground of religious beliefs.

The Court held that (b)ecause the broad public interest in maintaining a sound tax system is of such a high order, religious belief in conflict with the payment of taxes affords no basis for resisting the tax. [180] It reasoned that unlike in Sherbert, an exemption would significantly impair governments achievement of its objective - the fiscal vitality of the social security system; mandatory participation is indispensable to attain this objective. The Court noted that if an exemption were made, it would be hard to justify not allowing a similar exemption from general federal taxes where the taxpayer argues that his religious beliefs require him to reduce or eliminate his payments so that he will not contribute to the governments war-related activities, for example. The strict scrutiny and compelling state interest test significantly increased the degree of protection afforded to religiously motivated conduct. While not affording absolute immunity to religious activity, a compelling secular justification was necessary to uphold public policies that collided with religious practices. Although the members of the Court often disagreed over which governmental interests should be considered compelling, thereby producing dissenting and separate opinions in religious conduct cases, this general test established a strong presumption in favor of the free exercise of religion.[181] Heightened scrutiny was also used in the 1972 case of Wisconsin v. Yoder[182] where the Court upheld the religious practice of the Old Order Amish faith over the states compulsory high school attendance law. The Amish parents in this case did not permit secular education of their children beyond the eighth grade. Chief Justice Burger, writing for the majority, held, viz: It follows that in order for Wisconsin to compel school attendance beyond the eighth grade against a claim that such attendance interferes with the practice of a legitimate religious belief, it must appear either that the State does not deny the free exercise of religious belief by its requirement, or that there is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause. Long before there was general acknowledgement of the need for universal education, the Religion Clauses had specially and firmly fixed the right of free exercise of religious beliefs, and buttressing this fundamental right was an equally firm, even if less explicit, prohibition against the establishment of any religion. The values underlying these two provisions relating to religion have been zealously protected, sometimes even at the expense of other interests of admittedly high social importance. . . The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion. . . . . . our decisions have rejected the idea that that religiously grounded conduct is always outside the protection of the Free Exercise Clause. It is true that activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise of their undoubted power to promote the health, safety, and general welfare, or the Federal government in the exercise of its delegated powers . . . But to agree that religiously grounded conduct must often be subject to the broad police power of the State is not to deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability. . . .This case, therefore, does not become easier because respondents were convicted for their actions in refusing to send their children to the public high school; in this context belief and action cannot be neatly confined in logic-tight compartments. . . [183] The onset of the 1990s, however, saw a major setback in the protection afforded by the Free Exercise Clause. In Employment Division, Oregon Department of Human Resources v. Smith , [184] the sharply dividedRehnquist Court dramatically departed from the heightened scrutiny and compelling justification approach and imposed serious limits on the scope of protection of religious freedom afforded by the First Amendment. In this case, the well-established practice of the Native American Church, a sect outside the Judeo-Christian mainstream of American religion, came in conflict with the states interest in prohibiting the use of illicit drugs. Oregons controlled substances statute made the possession of peyote a criminal offense. Two members of the church, Smith and Black, worked as

drug rehabilitation counselors for a private social service agency in Oregon. Along with other church members, Smith and Black ingested peyote, a hallucinogenic drug, at a sacramental ceremony practiced by Native Americans for hundreds of years. The social service agency fired Smith and Black citing their use of peyote as job-related misconduct. They applied for unemployment compensation, but the Oregon Employment Appeals Board denied their application as they were discharged for job-related misconduct. Justice Scalia, writing for the majority, ruled that if prohibiting the exercise of religion . . . is . . . merely the incidental effect of a generally applicable and otherwise valid law, the First Amendment has not been offended. In other words, the Free Exercise Clause would be offended only if a particular religious practice were singled out for proscription. The majority opinion relied heavily on the Reynolds case and in effect, equated Oregons drug prohibition law with the anti-polygamy statute in Reynolds. The relevant portion of the majority opinion held, viz: We have never invalidated any governmental action on the basis of the Sherbert test except the denial of unemployment compensation. Even if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field, we would not apply it to require exemptions from a generally applicable criminal law. . . We conclude today that the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the test inapplicable to such challenges. The governments ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, cannot depend on measuring the effects of a governmental action on a religious objectors spiritual development. . . .To make an individuals obligation to obey such a law contingent upon the laws coincidence with his religious beliefs except where the States interest is compelling - permitting him, by virtue of his beliefs, to become a law unto himself, . . . contradicts both constitutional tradition and common sense. Justice OConnor wrote a concurring opinion pointing out that the majoritys rejection of the compelling governmental interest test was the most controversial part of the decision. Although she concurred in the result that the Free Exercise Clause had not been offended, she sharply criticized the majority opinion as a dramatic departure from well-settled First Amendment jurisprudence. . . and . . . (as) incompatible with our Nations fundamental commitment to religious liberty. This portion of her concurring opinion was supported by Justices Brennan, Marshall and Blackmun who dissented from the Courts decision. Justice OConnor asserted that (t)he compelling state interest test effectuates the First Amendments command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling government interest of the highest order. Justice Blackmun registered a separate dissenting opinion, joined by Justices Brennan and Marshall. He charged the majority with mischaracterizing precedents and overturning. . . settled law concerning the Religion Clauses of our Constitution. He pointed out that the Native American Church restricted and supervised the sacramental use of peyote. Thus, the state had no significant health or safety justification for regulating the sacramental drug use. He also observed that Oregon had not attempted to prosecute Smith or Black, or any Native Americans, for that matter, for the sacramental use of peyote. In conclusion, he said that Oregons interest in enforcing its drug laws against religious use of peyote (was) not sufficiently compelling to outweigh respondents right to the free exercise of their religion. The Court went back to the Reynolds and Gobitis doctrine in Smith. The Courts standard in Smith virtually eliminated the requirement that the government justify with a compelling state interest the burdens on religious exercise imposed by laws neutral toward religion. The Smith doctrine is highly unsatisfactory in several respects and has been criticized as exhibiting a shallow understanding of free exercise jurisprudence.[185] First, the First amendment was intended to protect minority religions from the tyranny of the religious and political majority. A deliberate regulatory interference with minority religious freedom is the worst form of this tyranny. But regulatory interference with a minority religion as a result of ignorance or sensitivity of the religious and political majority is no less an interference with the minoritys

religious freedom. If the regulation had instead restricted the majoritys religious practice, the majoritarian legislative process would in all probability have modified or rejected the regulation. Thus, the imposition of the political majoritys non-religious objectives at the expense of the minoritys religious interests implements the majoritys religious viewpoint at the expense of the minoritys. Second, government impairment of religious liberty would most often be of the inadvertent kind as in Smith considering the political culture where direct and deliberate regulatory imposition of religious orthodoxy is nearly inconceivable. If the Free Exercise Clause could not afford protection to inadvertent interference, it would be left almost meaningless. Third, the Reynolds-Gobitis-Smith doctrine simply defies common sense. The state should not be allowed to interfere with the most deeply held fundamental religious convictions of an individual in order to pursue some trivial state economic or bureaucratic objective. This is especially true when there are alternative approaches for the state to effectively pursue its objective without serious inadvertent impact on religion.[186] Thus, the Smith decision has been criticized not only for increasing the power of the state over religion but as discriminating in favor of mainstream religious groups against smaller, more peripheral groups who lack legislative clout,[187]contrary to the original theory of the First Amendment. [188] Undeniably, claims for judicial exemption emanate almost invariably from relatively politically powerless minority religions and Smith virtually wiped out their judicial recourse for exemption. [189] Thus, the Smith decision elicited much negative public reaction especially from the religious community, and commentaries insisted that the Court was allowing the Free Exercise Clause to disappear. [190] So much was the uproar that a majority in Congress was convinced to enact the Religious Freedom Restoration Act (RFRA) of 1993. The RFRA prohibited government at all levels from substantially burdening a persons free exercise of religion, even if such burden resulted from a generally applicable rule, unless the government could demonstrate a compelling state interest and the rule constituted the least restrictive means of furthering that interest.[191] RFRA, in effect, sought to overturn the substance of the Smith ruling and restore the status quo prior to Smith. Three years after the RFRA was enacted, however, the Court, dividing 6 to 3, declared the RFRA unconstitutional in City of Boerne v. Flores.[192] The Court ruled that RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance. It emphasized the primacy of its role as interpreter of the Constitution and unequivocally rejected, on broad institutional grounds, a direct congressional challenge of final judicial authority on a question of constitutional interpretation. After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah [193] which was ruled consistent with the Smith doctrine. This case involved animal sacrifice of the Santeria, a blend of Roman Catholicism and West African religions brought to the Carribean by East African slaves. An ordinance made it a crime to unnecessarily kill, torment, torture, or mutilate an animal in public or private ritual or ceremony not for the primary purpose of food consumption. The ordinance came as a response to the local concern over the sacrificial practices of the Santeria. Justice Kennedy, writing for the majority, carefully pointed out that the questioned ordinance was not a generally applicable criminal prohibition, but instead singled out practitioners of the Santeria in that it forbade animal slaughter only insofar as it took place within the context of religious rituals. It may be seen from the foregoing cases that under the Free Exercise Clause, religious belief is absolutely protected, religious speech and proselytizing are highly protected but subject to restraints applicable to non-religious speech, and unconventional religious practice receives less protection; nevertheless conduct, even if its violates a law, could be accorded protection as shown in Wisconsin.[194]

B. Establishment Clause The Courts first encounter with the Establishment Clause was in the 1947 case of Everson v. Board of Education.[195] Prior cases had made passing reference to the Establishment Clause [196] and raised establishment questions but were decided on other grounds. [197] It was in the Everson case that the U.S. Supreme Court adopted Jeffersons metaphor of a wall of separation between church and state as encapsulating the meaning of the Establishment Clause. The often and loosely used phrase separation of church and state does not appear in the U.S. Constitution. It became part of U.S.

jurisprudence when the Court in the 1878 case of Reynolds v. United States[198] quoted Jeffersons famous letter of 1802 to the Danbury Baptist Association in narrating the history of the religion clauses, viz: Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the Government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their Legislature should make no law respecting an establishment of religion or prohibiting the free exercise thereof, thus building a wall of separation between Church and State. [199] (emphasis supplied) Chief Justice Waite, speaking for the majority, then added, (c)oming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured.[200] The interpretation of the Establishment Clause has in large part been in cases involving education, notably state aid to private religious schools and prayer in public schools. [201] In Everson v. Board of Education, for example, the issue was whether a New Jersey local school board could reimburse parents for expenses incurred in transporting their children to and from Catholic schools. The reimbursement was part of a general program under which all parents of children in public schools and nonprofit private schools, regardless of religion, were entitled to reimbursement for transportation costs. Justice Hugo Black, writing for a sharply divided Court, justified the reimbursements on the child benefit theory, i.e., that the school board was merely furthering the states legitimate interest in getting children regardless of their religion, safely and expeditiously to and from accredited schools. The Court, after narrating the history of the First Amendment in Virginia, interpreted the Establishment Clause, viz: The establishment of religion clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation between Church and State.[202] The Court then ended the opinion, viz: The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here.[203] By 1971, the Court integrated the different elements of the Courts Establishment Clause jurisprudence that evolved in the 1950s and 1960s and laid down a three-pronged test in Lemon v. Kurtzman[204] in determining the constitutionality of policies challenged under the Establishment Clause. This case involved a Pennsylvania statutory program providing publicly funded reimbursement for the cost of teachers salaries, textbooks, and instructional materials in secular subjects and a Rhode Island statute providing salary supplements to teachers in parochial schools. The Lemon test requires a challenged policy to meet the following criteria to pass scrutiny under the Establishment Clause. First, the statute must have a secular legislative purpose; second, its primary or principal effect must be one that neither advances nor inhibits religion (Board of Education v. Allen, 392 US 236, 243, 20 L Ed 2d 1060, 1065, 88 S Ct 1923 [1968]); finally, the statute must not foster an excessive entanglement with religion. (Walz v.Tax Commission, 397 US 664, 668, 25 L Ed 2d 697, 701, 90 S Ct 1409 [1970]) (emphasis supplied)[205] Using this test, the Court held that the Pennsylvania statutory

program and Rhode Island statute were unconstitutional as fostering excessive entanglement between government and religion. The most controversial of the education cases involving the Establishment Clause are the school prayer decisions. Few decisions of the modern Supreme Court have been criticized more intensely than the school prayer decisions of the early 1960s. [206] In the 1962 case of Engel v. Vitale,[207] the Court invalidated a New York Board of Regents policy that established the voluntary recitation of a brief generic prayer by children in the public schools at the start of each school day. The majority opinion written by Justice Black stated that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as part of a religious program carried on by government. In fact, history shows that this very practice of establishing governmentally composed prayers for religious services was one of the reasons that caused many of the early colonists to leave England and seek religious freedom in America. The Court called to mind that the first and most immediate purpose of the Establishment Clause rested on the belief that a union of government and religion tends to destroy government and to degrade religion. The following year, the Engel decision was reinforced in Abington School District v. Schempp [208] and Murray v. Curlett[209] where the Court struck down the practice of Bible reading and the recitation of the Lords prayer in the Pennsylvania and Maryland schools. The Court held that to withstand the strictures of the Establishment Clause, a statute must have a secular legislative purpose and a primary effect that neither advances nor inhibits religion. It reiterated,viz: The wholesome neutrality of which this Courts cases speak thus stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependency of one upon the other to the end that official support of the State of Federal Government would be placed behind the tenets of one or of all orthodoxies. This the Establishment Clause prohibits. And a further reason for neutrality is found in the Free Exercise Clause, which recognizes the value of religious training, teaching and observance and, more particularly, the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state.[210] The school prayer decisions drew furious reactions. Religious leaders and conservative members of Congress and resolutions passed by several state legislatures condemned these decisions. [211] On several occasions, constitutional amendments have been introduced in Congress to overturn the school prayer decisions. Still, the Court has maintained its position and has in fact reinforced it in the 1985 case of Wallace v. Jaffree[212] where the Court struck down an Alabama law that required public school students to observe a moment of silence for the purpose of meditation or voluntary prayer at the start of each school day. Religious instruction in public schools has also pressed the Court to interpret the Establishment Clause. Optional religious instruction within public school premises and instructional time were declared offensive of the Establishment Clause in the 1948 case of McCollum v. Board of Education,[213] decided just a year after the seminal Everson case. In this case, interested members of the Jewish, Roman Catholic and a few Protestant faiths obtained permission from the Board of Education to offer classes in religious instruction to public school students in grades four to nine. Religion classes were attended by pupils whose parents signed printed cards requesting that their children be permitted to attend. The classes were taught in three separate groups by Protestant teachers, Catholic priests and a Jewish rabbi and were held weekly from thirty to forty minutes during regular class hours in the regular classrooms of the school building. The religious teachers were employed at no expense to the school authorities but they were subject to the approval and supervision of the superintendent of schools. Students who did not choose to take religious instruction were required to leave their classrooms and go to some other place in the school building for their secular studies while those who were released from their secular study for religious instruction were required to attend the religious classes. The Court held that the use of taxsupported property for religious instruction and the close cooperation between the school authorities and the religious council in promoting religious education amounted to a prohibited use of tax-established and tax-supported public school system to aid religious groups spread their faith. The Court rejected the claim that the Establishment Clause only prohibited government preference of one religion over another

and not an impartial governmental assistance of all religions. In Zorach v. Clauson,[214] however, the Court upheld released time programs allowing students in public schools to leave campus upon parental permission to attend religious services while other students attended study hall. Justice Douglas, the writer of the opinion, stressed that (t)he First Amendment does not require that in every and all respects there shall be a separation of Church and State. The Court distinguished Zorach fromMcCollum, viz: In the McCollum case the classrooms were used for religious instruction and the force of the public school was used to promote that instruction. . . We follow the McCollum case. But we cannot expand it to cover the present released time program unless separation of Church and State means that public institutions can make no adjustments of their schedules to accommodate the religious needs of the people. We cannot read into the Bill of Rights such a philosophy of hostility to religion. [215] In the area of government displays or affirmations of belief, the Court has given leeway to religious beliefs and practices which have acquired a secular meaning and have become deeply entrenched in history. For instance, in McGowan v. Maryland,[216] the Court upheld laws that prohibited certain businesses from operating on Sunday despite the obvious religious underpinnings of the restrictions. Citing the secular purpose of the Sunday closing laws and treating as incidental the fact that this day of rest happened to be the day of worship for most Christians, the Court held, viz: It is common knowledge that the first day of the week has come to have special significance as a rest day in this country. People of all religions and people with no religion regard Sunday as a time for family activity, for visiting friends and relatives, for later sleeping, for passive and active entertainments, for dining out, and the like.[217] In the 1983 case of Marsh v. Chambers,[218] the Court refused to invalidate Nebraskas policy of beginning legislative sessions with prayers offered by a Protestant chaplain retained at the taxpayers expense. The majority opinion did not rely on the Lemon test and instead drew heavily from history and the need for accommodation of popular religious beliefs, viz: In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become the fabric of our society. To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an establishment of religion or a step toward establishment; it is simply a tolerable acknowledgement of beliefs widely held among the people of this country. As Justice Douglas observed, (w)e are a religious people whose institutions presuppose a Supreme Being. (Zorach c. Clauson, 343 US 306, 313 [1952])[219] (emphasis supplied) Some view the Marsh ruling as a mere aberration as the Court would inevitably be embarrassed if it were to attempt to strike down a practice that occurs in nearly every legislature in the United States, including the U.S. Congress.[220]That Marsh was not an aberration is suggested by subsequent cases. In the 1984 case of Lynch v. Donnelly,[221] the Court upheld a city-sponsored nativity scene in Rhode Island. By a 5-4 decision, the majority opinion hardly employed the Lemon test and again relied on history and the fact that the creche had become a neutral harbinger of the holiday season for many, rather than a symbol of Christianity. The Establishment Clause has also been interpreted in the area of tax exemption. By tradition, church and charitable institutions have been exempt from local property taxes and their income exempt from federal and state income taxes. In the 1970 case of Walz v. Tax Commission,[222] the New York City Tax Commissions grant of property tax exemptions to churches as allowed by state law was challenged by Walz on the theory that this required him to subsidize those churches indirectly. The Court upheld the law stressing its neutrality, viz: It has not singled out one particular church or religious group or even churches as such; rather, it has granted exemptions to all houses of religious worship within a broad class of property owned by nonprofit, quasi-public corporations . . . The State has an affirmative policy that considers these groups as

beneficial and stabilizing influences in community life and finds this classification useful, desirable, and in the public interest.[223] The Court added that the exemption was not establishing religion but sparing the exercise of religion from the burden of property taxation levied on private profit institutions [224] and preventing excessive entanglement between state and religion. At the same time, the Court acknowledged the long-standing practice of religious tax exemption and the Courts traditional deference to legislative bodies with respect to the taxing power, viz: (f)ew concepts are more deeply embedded in the fabric of our national life, beginning with preRevolutionary colonial times, than for the government to exercise . . . this kind of benevolent neutrality toward churches and religious exercise generally so long as none was favored over others and none suffered interference.[225] (emphasis supplied)

C. Strict Neutrality v. Benevolent Neutrality To be sure, the cases discussed above, while citing many landmark decisions in the religious clauses area, are but a small fraction of the hundreds of religion clauses cases that the U.S. Supreme Court has passed upon. Court rulings contrary to or making nuances of the above cases may be cited. Professor McConnell poignantly recognizes this, viz: Thus, as of today, it is constitutional for a state to hire a Presbyterian minister to lead the legislature in daily prayers (Marsh v. Chambers, 463 US783, 792-93[1983]), but unconstitutional for a state to set aside a moment of silence in the schools for children to pray if they want to (Wallace v. Jaffree, 472 US 38, 56 [1985]). It is unconstitutional for a state to require employers to accommodate their employees work schedules to their sabbath observances (Estate of Thornton v. Caldor, Inc., 472 US 703, 709-10 [1985]) but constitutionally mandatory for a state to require employers to pay workers compensation when the resulting inconsistency between work and sabbath leads to discharge (. . .Sherbert v. Verner, 374 US 398, 403-4 [1963]). It is constitutional for the government to give money to religiously-affiliated organizations to teach adolescents about proper sexual behavior (Bowen v. Kendrick, 487 US 589, 611 [1988]), but not to teach them science or history (Lemon v. Kurtzman, 403 US 602, 618-619 [1971]). It is constitutional for the government to provide religious school pupils with books (Board of Education v. Allen, 392 US 236, 238 [1968]), but not with maps (Wolman v. Walter, 433 US 229, 249-51 [1977]); with bus rides to religious schools (Everson v. Board of Education, 330 US 1, 17 [1947]), but not from school to a museum on a field trip (Wolman v. Walter, 433 US 229, 252-55 [1977]); with cash to pay for statemandated standardized tests (Committee for Pub. Educ. and Religious Liberty v. Regan, 444 US 646, 653-54 [1980]), but not to pay for safety-related maintenance (Committee for Pub. Educ v. Nyquist, 413 US 756, 774-80 [1973]). It is a mess.[226] But the purpose of the overview is not to review the entirety of the U.S. religion clause jurisprudence nor to extract the prevailing case law regarding particular religious beliefs or conduct colliding with particular government regulations. Rather, the cases discussed above suffice to show that, as legal scholars observe, this area of jurisprudence has demonstrated two main standards used by the Court in deciding religion clause cases: separation (in the form of strict separation or the tamer version of strict neutrality or separation) and benevolent neutrality or accommodation. The weight of current authority, judicial and in terms of sheer volume, appears to lie with the separationists, strict or tame. [227] But the accommodationists have also attracted a number of influential scholars and jurists. [228] The two standards producing two streams of jurisprudence branch out respectively from the history of the First Amendment in England and the American colonies and climaxing in Virginia as narrated in this opinion and officially acknowledged by the Court in Everson, and from American societal life which reveres religion and practices age-old religious traditions. Stated otherwise, separation - strict or tame - protects the principle of church-state separation with a rigid reading of the principle while benevolent

neutrality protects religious realities, tradition and established practice with a flexible reading of the principle.[229] The latter also appeals to history in support of its position, viz: The opposing school of thought argues that the First Congress intended to allow government support of religion, at least as long as that support did not discriminate in favor of one particular religion . . . the Supreme Court has overlooked many important pieces of history. Madison, for example, was on the congressional committee that appointed a chaplain, he declared several national days of prayer and fasting during his presidency, and he sponsored Jeffersons bill for punishing Sabbath breakers; moreover, while president, Jefferson allowed federal support of religious missions to the Indians. . . And so, concludes one recent book, there is no support in the Congressional records that either the First Congress, which framed the First Amendment, or its principal author and sponsor, James Madison, intended that Amendment to create a state of complete independence between religion and government. In fact, the evidence in the public documents goes the other way. [230] (emphasis supplied) To succinctly and poignantly illustrate the historical basis of benevolent neutrality that gives room for accommodation, less than twenty-four hours after Congress adopted the First Amendments prohibition on laws respecting an establishment of religion, Congress decided to express its thanks to God Almighty for the many blessings enjoyed by the nation with a resolution in favor of a presidential proclamation declaring a national day of Thanksgiving and Prayer. Only two members of Congress opposed the resolution, one on the ground that the move was a mimicking of European customs, where they made a mere mockery of thanksgivings, the other on establishment clause concerns. Nevertheless, the salutary effect of thanksgivings throughout Western history was acknowledged and the motion was passed without further recorded discussion. [231] Thus, accommodationists also go back to the framers to ascertain the meaning of the First Amendment, but prefer to focus on acts rather than words. Contrary to the claim of separationists that rationalism pervaded America in the late 19 th century and that America was less specifically Christian during those years than at any other time before or since, [232] accommodationaists claim that American citizens at the time of the Constitutions origins were a remarkably religious people in particularly Christian terms. [233] The two streams of jurisprudence - separationist or accommodationist - are anchored on a different reading of the wall of separation. The strict separtionist view holds that Jefferson meant the wall of separation to protect the state from the church. Jefferson was a man of the Enlightenment Era of the eighteenth century, characterized by the rationalism and anticlericalism of that philosophic bent.[234] He has often been regarded as espousing Deism or the rationalistic belief in a natural religion and natural law divorced from its medieval connection with divine law, and instead adhering to a secular belief in a universal harmony.[235] Thus, according to this Jeffersonian view, the Establishment Clause being meant to protect the state from the church, the states hostility towards religion allows no interaction between the two.[236] In fact, when Jefferson became President, he refused to proclaim fast or thanksgiving days on the ground that these are religious exercises and the Constitution prohibited the government from intermeddling with religion. [237] This approach erects an absolute barrier to formal interdependence of religion and state. Religious institutions could not receive aid, whether direct or indirect, from the state. Nor could the state adjust its secular programs to alleviate burdens the programs placed on believers.[238] Only the complete separation of religion from politics would eliminate the formal influence of religious institutions and provide for a free choice among political views thus a strict wall of separation is necessary.[239] Strict separation faces difficulties, however, as it is deeply embedded in history and contemporary practice that enormous amounts of aid, both direct and indirect, flow to religion from government in return for huge amounts of mostly indirect aid from religion. Thus, strict separationists are caught in an awkward position of claiming a constitutional principle that has never existed and is never likely to.[240] A tamer version of the strict separationist view, the strict neutrality or separationist view is largely used by the Court, showing the Courts tendency to press relentlessly towards a more secular society.[241] It finds basis in theEverson case where the Court declared that Jeffersons wall of separation encapsulated the meaning of the First Amendment but at the same time held that the First Amendment requires the state to be neutral in its relations with groups of religious believers and nonbelievers; it does not require the state to be their adversary. State power is no more to be used so

as to handicap religions than it is to favor them. (emphasis supplied)[242] While the strict neutrality approach is not hostile to religion, it is strict in holding that religion may not be used as a basis for classification for purposes of governmental action, whether the action confers rights or privileges or imposes duties or obligations. Only secular criteria may be the basis of government action. It does not permit, much less require, accommodation of secular programs to religious belief. [243] Professor Kurland wrote, viz: The thesis proposed here as the proper construction of the religion clauses of the first amendment is that the freedom and separation clauses should be read as a single precept that government cannot utilize religion as a standard for action or inaction because these clauses prohibit classification in terms of religion either to confer a benefit or to impose a burden. [244] The Court has repeatedly declared that religious freedom means government neutrality in religious matters and the Court has also repeatedly interpreted this policy of neutrality to prohibit government from acting except for secular purposes and in ways that have primarily secular effects. [245] Prayer in public schools is an area where the Court has applied strict neutrality and refused to allow any form of prayer, spoken or silent, in the public schools as in Engel and Schempp.[246] The McCollum case prohibiting optional religious instruction within public school premises during regular class hours also demonstrates strict neutrality. In these education cases, the Court refused to uphold the government action as they were based not on a secular but on a religious purpose. Strict neutrality was also used in Reynolds and Smith which both held that if government acts in pursuit of a generally applicable law with a secular purpose that merely incidentally burdens religious exercise, the First Amendment has not been offended. However, if the strict neutrality standard is applied in interpreting the Establishment Clause, it could de facto void religious expression in the Free Exercise Clause. As pointed out by Justice Goldberg in his concurring opinion in Schempp, strict neutrality could lead to a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious which is prohibited by the Constitution.[247] Professor Laurence Tribe commented in his authoritative treatise, viz: To most observers. . . strict neutrality has seemed incompatible with the very idea of a free exercise clause. The Framers, whatever specific applications they may have intended, clearly envisioned religion as something special; they enacted that vision into law by guaranteeing the free exercise of religion but not, say, of philosophy or science. The strict neutrality approach all but erases this distinction. Thus it is not surprising that the Supreme Court has rejected strict neutrality, permitting and sometimes mandating religious classifications.[248] The separationist approach, whether strict or tame, is caught in a dilemma because while the Jeffersonian wall of separation captures the spirit of the American ideal of church-state separation, in real life church and state are not and cannot be totally separate. [249] This is all the more true in contemporary times when both the government and religion are growing and expanding their spheres of involvement and activity, resulting in the intersection of government and religion at many points. [250] Consequently, the Court has also decided cases employing benevolent neutrality. Benevolent neutrality which gives room for accommodation is buttressed by a different view of the wall of separation associated with Williams, founder of the Rhode Island colony. In Mark DeWolfe Howes classic, The Garden and the Wilderness, he asserts that to the extent the Founders had a wall of separation in mind, it was unlike the Jeffersonian wall that is meant to protect the state from the church; instead, the wall is meant to protect the church from the state, [251] i.e., the garden of the church must be walled in for its own protection from the wilderness of the world [252] with its potential for corrupting those values so necessary to religious commitment. [253] Howe called this the theological or evangelical rationale for church-state separation while the wall espoused by enlightened statesmen such as Jefferson and Madison, was a political rationale seeking to protect politics from intrusions by the church. [254] But it has been asserted that this contrast between the Williams and Jeffersonian positions is more accurately described as a difference in kinds or styles of religious thinking, not as a conflict between religious and secular (political); the religious style was biblical and evangelical in character while the

secular style was grounded in natural religion, more generic and philosophical in its religious orientation.
[255]

The Williams wall is, however, breached for the church is in the state and so the remaining purpose of the wall is to safeguard religious liberty. Williams view would therefore allow for interaction between church and state, but is strict with regard to state action which would threaten the integrity of religious commitment.[256] His conception of separation is not total such that it provides basis for certain interactions between church and state dictated by apparent necessity or practicality. [257] This theological view of separation is found in Williams writings, viz: . . . when they have opened a gap in the hedge or wall of separation between the garden of the church and the wilderness of the world, God hath ever broke down the wall itself, removed the candlestick, and made his garden a wilderness, as this day. And that therefore if He will eer please to restore His garden and paradise again, it must of necessity be walled in peculiarly unto Himself from the world. . . [258] Chief Justice Burger spoke of benevolent neutrality in Walz, viz: The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.[259] (emphasis supplied) The Zorach case expressed the doctrine of accommodation,[260] viz: The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no concert or union or dependency one or the other. That is the common sense of the matter. Otherwise, the state and religion would be aliens to each other - hostile, suspicious, and even unfriendly. Churches could not be required to pay even property taxes. Municipalities would not be permitted to render police or fire protection to religious groups. Policemen who helped parishioners into their places of worship would violate the Constitution. Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; so help me God in our courtroom oaths- these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist or agnostic could even object to the supplication with which the Court opens each session: God save the United States and this Honorable Court. xxx xxx xxx

We are a religious people whose institutions presuppose a Supreme Being . We guarantee the freedom to worship as one chooses. . . When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. . . But we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen their effective scope of religious influence. [261] (emphases supplied) Benevolent neutrality is congruent with the sociological proposition that religion serves a function essential to the survival of society itself, thus there is no human society without one or more ways of

performing the essential function of religion. Although for some individuals there may be no felt need for religion and thus it is optional or even dispensable, for society it is not, which is why there is no human society without one or more ways of performing the essential function of religion. Even in ostensibly atheistic societies, there are vigorous underground religion(s) and surrogate religion(s) in their ideology. [262] As one sociologist wrote: It is widely held by students of society that there are certain functional prerequisites without which society would not continue to exist. At first glance, this seems to be obvious - scarcely more than to say that an automobile could not exist, as a going system, without a carburetor. . . Most writers list religion among the functional prerequisites.[263] Another noted sociologist, Talcott Parsons, wrote: There is no known human society without something which modern social scientists would classify as a religionReligion is as much a human universal as language.[264] Benevolent neutrality thus recognizes that religion plays an important role in the public life of the United States as shown by many traditional government practices which, to strict neutrality, pose Establishment Clause questions. Among these are the inscription of In God We Trust on American currency, the recognition of America as one nation under God in the official pledge of allegiance to the flag, the Supreme Courts time-honored practice of opening oral argument with the invocation God save the United States and this honorable Court, and the practice of Congress and every state legislature of paying a chaplain, usually of a particular Protestant denomination to lead representatives in prayer. [265] These practices clearly show the preference for one theological viewpoint -the existence of and potential for intervention by a god - over the contrary theological viewpoint of atheism. Church and government agencies also cooperate in the building of low-cost housing and in other forms of poor relief, in the treatment of alcoholism and drug addiction, in foreign aid and other government activities with strong moral dimension.[266] The persistence of these de factoestablishments are in large part explained by the fact that throughout history, the evangelical theory of separation, i.e., Williams wall, has demanded respect for these de facto establishments.[267] But the separationists have a different explanation. To characterize these as de jure establishments according to the principle of the Jeffersonian wall, the U.S. Supreme Court, the many dissenting and concurring opinions explain some of these practices as de minimis instances of government endorsement or as historic governmental practices that have largely lost their religious significance or at least have proven not to lead the government into further involvement with religion.[268] With religion looked upon with benevolence and not hostility, benevolent neutrality allows accommodation of religion under certain circumstances. Accommodations are government policies that take religion specifically into account not to promote the governments favored form of religion, but to allow individuals and groups to exercise their religion without hindrance. Their purpose or effect therefore is to remove a burden on, or facilitate the exercise of, a persons or institutions religion. As Justice Brennan explained, the government [may] take religion into accountto exempt, when possible, from generally applicable governmental regulation individuals whose religious beliefs and practices would otherwise thereby be infringed, or to create without state involvement an atmosphere in which voluntary religious exercise may flourish. [269] (emphasis supplied) Accommodation is forbearance and not alliance. it does not reflect agreement with the minority, but respect for the conflict between the temporal and spiritual authority in which the minority finds itself.[270] Accommodation is distinguished from strict neutrality in that the latter holds that government should base public policy solely on secular considerations, without regard to the religious consequences of its actions. The debate between accommodation and strict neutrality is at base a question of means: Is the freedom of religion best achieved when the government is conscious of the effects of its action on the various religious practices of its people, and seeks to minimize interferences with those practices? Or is it best advanced through a policy of religious blindness - keeping government aloof from religious practices and issues? An accommodationist holds that it is good public policy, and sometimes constitutionally required, for the state to make conscious and deliberate efforts to avoid interference with religious freedom. On the other hand, the strict neutrality adherent believes that it

is good public policy, and also constitutionally required, for the government to avoid religion-specific policy even at the cost of inhibiting religious exercise.[271] There are strong and compelling reasons, however, to take the accommodationist position rather than the strict neutrality position. First, the accommodationist interpretation is most consistent with the language of the First Amendment. The religion clauses contain two parallel provisions, both specifically directed at religion. The government may not establish religion and neither may government prohibit it. Taken together, the religion clauses can be read most plausibly as warding off two equal and opposite threats to religious freedom - government action that promotes the (political) majoritys favored brand of religion and government action that impedes religious practices not favored by the majority. The substantive end in view is the preservation of the autonomy of religious life and not just the formal process value of ensuring that government does not act on the basis of religious bias. On the other hand, strict neutrality interprets the religion clauses as allowing government to do whatever it desires to or for religion, as long as it does the same to or for comparable secular entities. Thus, for example, if government prohibits all alcoholic consumption by minors, it can prohibit minors from taking part in communion. Paradoxically, this view would make the religion clauses violate the religion clauses, so to speak, since the religion clauses single out religion by name for special protection. Second, the accommodationist position best achieves the purposes of the First Amendment. The principle underlying the First Amendment is that freedom to carry out ones duties to a Supreme Being is an inalienable right, not one dependent on the grace of legislature. Although inalienable, it is necessarily limited by the rights of others, including the public right of peace and good order. Nevertheless it is a substantive right and not merely a privilege against discriminatory legislation. The accomplishment of the purpose of the First Amendment requires more than the religion blindness of strict neutrality. With the pervasiveness of government regulation, conflicts with religious practices become frequent and intense. Laws that are suitable for secular entities are sometimes inappropriate for religious entities, thus the government must make special provisions to preserve a degree of independence for religious entities for them to carry out their religious missions according to their religious beliefs. Otherwise, religion will become just like other secular entities subject to pervasive regulation by majoritarian institutions. Third, the accommodationist interpretation is particularly necessary to protect adherents of minority religions from the inevitable effects of majoritarianism, which include ignorance and indifference and overt hostility to the minority. In a democratic republic, laws are inevitably based on the presuppositions of the majority, thus not infrequently, they come into conflict with the religious scruples of those holding different world views, even in the absence of a deliberate intent to interfere with religious practice. At times, this effect is unavoidable as a practical matter because some laws are so necessary to the common good that exceptions are intolerable. But in other instances, the injury to religious conscience is so great and the advancement of public purposes so small or incomparable that only indifference or hostility could explain a refusal to make exemptions. Because of plural traditions, legislators and executive officials are frequently willing to make such exemptions when the need is brought to their attention, but this may not always be the case when the religious practice is either unknown at the time of enactment or is for some reason unpopular. In these cases, a constitutional interpretation that allows accommodations prevents needless injury to the religious consciences of those who can have an influence in the legislature; while a constitutional interpretation that requires accommodations extends this treatment to religious faiths that are less able to protect themselves in the political arena. Fourth, the accommodationist position is practical as it is a commonsensical way to deal with the various needs and beliefs of different faiths in a pluralistic nation. Without accommodation, many otherwise beneficial laws would interfere severely with religious freedom. Aside from laws against serving alcoholic beverages to minors conflicting with celebration of communion, regulations requiring hard hats in construction areas can effectively exclude Amish and Sikhs from the workplace, or employment anti-discrimination laws can conflict with the Roman Catholic male priesthood, among others. Exemptions from such laws are easy to craft and administer and contribute much to promoting religious freedom at little cost to public policy. Without exemptions, legislature would be frequently forced to choose between violating religious conscience of a segment of the population or dispensing with legislation it considers beneficial to society as a whole. Exemption seems manifestly more reasonable than either of the alternative: no exemption or no law.[272]

Benevolent neutrality gives room for different kinds of accommodation: those which are constitutionally compelled, i.e., required by the Free Exercise Clause; and those which are discretionary or legislative, i.e., and those not required by the Free Exercise Clause but nonetheless permitted by the Establishment Clause.[273] Some Justices of the Supreme Court have also used the term accommodation to describe government actions that acknowledge or express prevailing religious sentiments of the community such as display of a religious symbol on public property or the delivery of a prayer at public ceremonial events. [274] Stated otherwise, using benevolent neutrality as a standard could result to three situations of accommodation: those where accommodation is required, those where it is permissible, and those where it is prohibited. In the first situation, accommodation is required to preserve free exercise protections and not unconstitutionally infringe on religious liberty or create penalties for religious freedom. Contrary to the Smith declaration that free exercise exemptions are intentional government advancement, these exemptions merely relieve the prohibition on the free exercise thus allowing the burdened religious adherent to be left alone. The state must create exceptions to laws of general applicability when these laws threaten religious convictions or practices in the absence of a compelling state interest.[275] By allowing such exemptions, the Free Exercise Clause does not give believers the right or privilege to choose for themselves to override socially-prescribed decision; it allows them to obey spiritual rather than temporal authority [276] for those who seriously invoke the Free Exercise Clause claim to be fulfilling a solemn duty. Religious freedom is a matter less of rights than duties; more precisely, it is a matter of rights derived from duties. To deny a person or a community the right to act upon such a duty can be justified only by appeal to a yet more compelling duty. Of course, those denied will usually not find the reason for the denial compelling. Because they may turn out to be right about the duty in question, and because, even if they are wrong, religion bears witness to that which transcends the political order, such denials should be rare and painfully reluctant. [277] The Yoder case is an example where the Court held that the state must accommodate the religious beliefs of the Amish who objected to enrolling their children in high school as required by law. The Sherbert case is another example where the Court held that the state unemployment compensation plan must accommodate the religious convictions of Sherbert. [278] In these cases of burdensome effect, the modern approach of the Court has been to apply strict scrutiny, i.e., to declare the burden as permissible, the Court requires the state to demonstrate that the regulation which burdens the religious exercise pursues a particularly important or compelling government goal through the least restrictive means. If the states objective could be served as well or almost as well by granting an exemption to those whose religious beliefs are burdened by the regulation, such an exemption must be given.[279] This approach of the Court on burdensome effect was only applied since the 1960s. Prior to this time, the Court took the separationist view that as long as the state was acting in pursuit of nonreligious ends and regulating conduct rather than pure religious beliefs, the Free Exercise Clause did not pose a hindrance such as in Reynolds.[280] In the second situation where accommodation is permissible, the state may, but is not required to, accommodate religious interests. The Walz case illustrates this situation where the Court upheld the constitutionality of tax exemption given by New York to church properties, but did not rule that the state was required to provide tax exemptions. The Court declared that (t)he limits of permissible state accommodation to religion are by no means co-extensive with the noninterference mandated by the Free Exercise Clause. [281] The Court held that New York could have an interest in encouraging religious values and avoiding threats to those values through the burden of property taxes. Other examples are the Zorach case allowing released time in public schools and Marsh allowing payment of legislative chaplains from public funds. Finally, in the situation where accommodation is prohibited, establishment concerns prevail over potential accommodation interests. To say that there are valid exemptions buttressed by the Free Exercise Clause does not mean that all claims for free exercise exemptions are valid. [282] An example where accommodation was prohibited is McCollum where the Court ruled against optional religious instruction in the public school premises. [283] In effect, the last situation would arrive at a strict neutrality conclusion. In the first situation where accommodation is required, the approach follows this basic framework: If the plaintiff can show that a law or government practice inhibits the free exercise of his religious beliefs, the burden shifts to the government to demonstrate that the law or practice is necessary to the accomplishment of some important (or compelling) secular objective and that it is the least restrictive

means of achieving that objective. If the plaintiff meets this burden and the government does not, the plaintiff is entitled to exemption from the law or practice at issue. In order to be protected, the claimants beliefs must be sincere, but they need not necessarily be consistent, coherent, clearly articulated, or congruent with those of the claimants religious denomination. Only beliefs rooted in religion are protected by the Free Exercise Clause; secular beliefs, however sincere and conscientious, do not suffice.[284] In other words, a three-step process (also referred to as the two-step balancing process supra when the second and third steps are combined) as in Sherbert is followed in weighing the states interest and religious freedom when these collide. Three questions are answered in this process. First, (h)as the statute or government action created a burden on the free exercise of religion? The courts often look into the sincerity of the religious belief, but without inquiring into the truth of the belief because the Free Exercise Clause prohibits inquiring about its truth as held in Ballard and Cantwell. The sincerity of the claimants belief is ascertained to avoid the mere claim of religious beliefs to escape a mandatory regulation. As evidence of sincerity, the U.S. Supreme Court has considered historical evidence as in Wisconsin where the Amish people had held a long-standing objection to enrolling their children in ninth and tenth grades in public high schools. In another case, Dobkin v. District of Columbia,[285] the Court denied the claim of a party who refused to appear in court on Saturday alleging he was a Sabbatarian, but the Court noted that he regularly conducted business on Saturday. Although it is true that the Court might erroneously deny some claims because of a misjudgment of sincerity, this is not as argument to reject all claims by not allowing accommodation as a rule. There might be injury to the particular claimant or to his religious community, but for the most part, the injustice is done only in the particular case. [286] Aside from the sincerity, the court may look into the centrality of those beliefs, assessing them not on an objective basis but in terms of the opinion and belief of the person seeking exemption. In Wisconsin, for example, the Court noted that the Amish peoples convictions against becoming involved in public high schools were central to their way of life and faith. Similarly, in Sherbert, the Court concluded that the prohibition against Saturday work was a cardinal principle.[287] Professor Lupu puts to task the person claiming exemption, viz: On the claimants side, the meaning and significance of the relevant religious practice must be demonstrated. Religious command should outweigh custom, individual conscience should count for more than personal convenience, and theological principle should be of greater significance than institutional ease. Sincerity matters, (footnote omitted) and longevity of practice - both by the individual and within the individuals religious tradition - reinforces sincerity. Most importantly, the law of free exercise must be inclusive and expansive, recognizing non-Christian religions - eastern, Western, aboriginal and otherwise - as constitutionally equal to their Christian counterparts, and accepting of the intensity and scope of fundamentalist creed.[288] Second, the court asks: (i)s there a sufficiently compelling state interest to justify this infringement of religious liberty? In this step, the government has to establish that its purposes are legitimate for the state and that they are compelling. Government must do more than assert the objectives at risk if exemption is given; it must precisely show how and to what extent those objectives will be undermined if exemptions are granted.[289] The person claiming religious freedom, on the other hand, will endeavor to show that the interest is not legitimate or that the purpose, although legitimate, is not compelling compared to infringement of religious liberty. This step involves balancing, i.e., weighing the interest of the state against religious liberty to determine which is more compelling under the particular set of facts. The greater the states interests, the more central the religious belief would have to be to overcome it. In assessing the state interest, the court will have to determine the importance of the secular interest and the extent to which that interest will be impaired by an exemption for the religious practice. Should the court find the interest truly compelling, there will be no requirement that the state diminish the effectiveness of its regulation by granting the exemption. [290] Third, the court asks: (h)as the state in achieving its legitimate purposes used the least intrusive means possible so that the free exercise is not infringed any more than necessary to achieve the legitimate goal of the state? [291] The analysis requires the state to show that the means in which it is achieving its legitimate state objective is the least intrusive means, i.e., it has chosen a way to achieve

its legitimate state end that imposes as little as possible on religious liberties. In Cantwell, for example, the Court invalidated the license requirement for the door-to-door solicitation as it was a forbidden burden on religious liberty, noting that less drastic means of insuring peace and tranquility existed. As a whole, in carrying out the compelling state interest test, the Court should give careful attention to context, both religious and regulatory, to achieve refined judgment. [292] In sum, as shown by U.S. jurisprudence on religion clause cases, the competing values of secular government and religious freedom create tensions that make constitutional law on the subject of religious liberty unsettled, mirroring the evolving views of a dynamic society. [293]

VII. Religion Clauses in the Philippines

A. History Before our country fell under American rule, the blanket of Catholicism covered the archipelago. There was a union of church and state and Catholicism was the state religion under the Spanish Constitution of 1876. Civil authorities exercised religious functions and the friars exercised civil powers.[294] Catholics alone enjoyed the right of engaging in public ceremonies of worship. [295] Although the Spanish Constitution itself was not extended to the Philippines, Catholicism was also the established church in our country under the Spanish rule. Catholicism was in fact protected by the Spanish Penal Code of 1884 which was in effect in the Philippines. Some of the offenses in chapter six of the Penal Code entitled Crimes against Religion and Worship referred to crimes against the state religion.[296] The coming of the Americans to our country, however, changed this state-church scheme for with the advent of this regime, the unique American experiment of separation of church and state was transported to Philippine soil. Even as early as the conclusion of the Treaty of Paris between the United States and Spain on December 10, 1898, the American guarantee of religious freedom had been extended to the Philippines. The Treaty provided that the inhabitants of the territories over which Spain relinquishes or cedes her sovereignty shall be secured in the free exercise of religion. [297] Even the Filipinos themselves guaranteed religious freedom a month later or on January 22, 1899 upon the adoption of the Malolos Constitution of the Philippine Republic under General Emilio Aguinaldo. It provided that the State recognizes the liberty and equality of all religion ( de todos los cultos) in the same manner as the separation of the Church and State. But the Malolos Constitution and government was short-lived as the Americans took over the reigns of government.[298] With the Philippines under the American regime, President McKinley issued Instructions to the Second Philippine Commission, the body created to take over the civil government in the Philippines in 1900. The Instructions guaranteed religious freedom, viz: That no law shall be made respecting the establishment of religion or prohibiting the free exercise thereof, and that the free exercise and enjoyment of religious profession and worship without discrimination or preference shall forever be allowed ... that no form of religion and no minister of religion shall be forced upon the community or upon any citizen of the Islands, that, on the other hand, no minister of religion shall be interfered with or molested in following his calling. [299] This provision was based on the First Amendment of the United States Constitution. Likewise, the Instructions declared that (t)he separation between State and Church shall be real, entire and absolute.[300] Thereafter, every organic act of the Philippines contained a provision on freedom of religion. Similar to the religious freedom clause in the Instructions, the Philippine Bill of 1902 provided that:

No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that free exercise and enjoyment of religious worship, without discrimination or preference, shall forever be allowed. In U.S. v. Balcorta,[301] the Court stated that the Philippine Bill of 1902 caused the complete separation of church and state, and the abolition of all special privileges and all restrictions theretofor conferred or imposed upon any particular religious sect.[302] The Jones Law of 1916 carried the same provision, but expanded it with a restriction against using public money or property for religious purposes, viz: That no law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that the free exercise and enjoyment of religious profession and worship without discrimination or preference, shall forever be allowed; and no religious test shall be required for the exercise of civil or political rights. No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or for the use, benefit or support of any priest, preacher, minister, or other religious teachers or dignitary as such. This was followed by the Philippine Independence Law or Tydings-McDuffie Law of 1934 which guaranteed independence to the Philippines and authorized the drafting of a Philippine constitution. It enjoined Filipinos to include freedom of religion in drafting their constitution preparatory to the grant of independence. The law prescribed that (a)bsolute toleration of religious sentiment shall be secured and no inhabitant or religious organization shall be molested in person or property on account of religious belief or mode of worship.[303] The Constitutional Convention then began working on the 1935 Constitution. In their proceedings, Delegate Jose P. Laurel as Chairman of the Committee on Bill of Rights acknowledged that (i)t was the Treaty of Paris of December 10, 1898, which first introduced religious toleration in our country. President McKinleys Instructions to the Second Philippine Commission reasserted this right which later was incorporated into the Philippine Bill of 1902 and in the Jones Law. [304] In accordance with the TydingsMcDuffie Law, the 1935 Constitution provided in the Bill of Rights, Article IV, Section 7, viz: Sec. 7. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof, and the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. This provision, borrowed from the Jones Law, was readily approved by the Convention. [305] In his speech as Chairman of the Committee on Bill of Rights, Delegate Laurel said that modifications in phraseology of the Bill of Rights in the Jones Law were avoided whenever possible because the principles must remain couched in a language expressive of their historical background, nature, extent and limitations as construed and interpreted by the great statesmen and jurists that vitalized them. [306] The 1973 Constitution which superseded the 1935 Constitution contained an almost identical provision on religious freedom in the Bill of Rights in Article IV, Section 8, viz: Sec. 8. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. This time, however, the General Provisions in Article XV added in Section 15 that (t)he separation of church and state shall be inviolable.

Without discussion by the 1986 Constitutional Commission, the 1973 religious clauses were reproduced in the 1987 Constitution under the Bill of Rights in Article III, Section 5. [307] Likewise, the provision on separation of church and state was included verbatim in the 1987 Constitution, but this time as a principle in Section 6, Article II entitled Declaration of Principles and State Policies. Considering the American origin of the Philippine religion clauses and the intent to adopt the historical background, nature, extent and limitations of the First Amendment of the U.S. Constitution when it was included in the 1935 Bill of Rights, it is not surprising that nearly all the major Philippine cases involving the religion clauses turn to U.S. jurisprudence in explaining the nature, extent and limitations of these clauses. However, a close scrutiny of these cases would also reveal that while U.S. jurisprudence on religion clauses flows into two main streams of interpretation - separation and benevolent neutrality - the well-spring of Philippine jurisprudence on this subject is for the most part, benevolent neutrality which gives room for accommodation.

B. Jurisprudence In revisiting the landscape of Philippine jurisprudence on the religion clauses, we begin with the definition of religion. Religion is derived from the Middle English religioun, from Old French religion, from Latin religio, vaguely referring to a bond between man and the gods. [308] This pre-Christian term for the cult and rituals of pagan Rome was first Christianized in the Latin translation of the Bible. [309] While the U.S. Supreme Court has had to take up the challenge of defining the parameters and contours of religion to determine whether a non-theistic belief or act is covered by the religion clauses, this Court has not been confronted with the same issue. In Philippine jurisprudence, religion, for purposes of the religion clauses, has thus far been interpreted as theistic. In 1937, the Philippine case of Aglipay v. Ruiz[310] involving the Establishment Clause, defined religion as a profession of faith to an active power that binds and elevates man to his Creator. Twenty years later, the Court cited the Aglipay definition in American Bible Society v. City of Manila,[311] a case involving the Free Exercise clause. The latter also cited the American case of Davis in defining religion, viz: (i)t has reference to ones views of his relations to His Creator and to the obligations they impose of reverence to His being and character and obedience to His Will. The Beason definition, however, has been expanded in U.S. jurisprudence to include non-theistic beliefs.

1. Free Exercise Clause Freedom of choice guarantees the liberty of the religious conscience and prohibits any degree of compulsion or burden, whether direct or indirect, in the practice of ones religion. The Free Exercise Clause principally guarantees voluntarism, although the Establishment Clause also assures voluntarism by placing the burden of the advancement of religious groups on their intrinsic merits and not on the support of the state.[312] In interpreting the Free Exercise Clause, the realm of belief poses no difficulty. The early case of Gerona v. Secretary of Education[313] is instructive on the matter, viz: The realm of belief and creed is infinite and limitless bounded only by ones imagination and thought. So is the freedom of belief, including religious belief, limitless and without bounds. One may believe in most anything, however strange, bizarre and unreasonable the same may appear to others, even heretical when weighed in the scales of orthodoxy or doctrinal standards. But between the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel. [314] The difficulty in interpretation sets in when belief is externalized into speech and action.

Religious speech comes within the pale of the Free Exercise Clause as illustrated in the American Bible Society case. In that case, plaintiff American Bible Society was a foreign, non-stock, non-profit, religious missionary corporation which sold bibles and gospel portions of the bible in the course of its ministry. The defendant City of Manila required plaintiff to secure a mayors permit and a municipal license as ordinarily required of those engaged in the business of general merchandise under the citys ordinances. Plaintiff argued that this amounted to religious censorship and restrained the free exercise and enjoyment of religious profession, to wit: the distribution and sale of bibles and other religious literature to the people of the Philippines. After defining religion, the Court, citing Tanada and Fernando, made this statement, viz: The constitutional guaranty of the free exercise and enjoyment of religious profession and worship carries with it the right to disseminate religious information. Any restraint of such right can only be justified like other restraints of freedom of expression on the grounds that there is a clear and present danger of any substantive evil which the State has the right to prevent. (Tanada and Fernando on the Constitution of the Philippines, vol. 1, 4th ed., p. 297) (emphasis supplied) This was the Courts maiden unequivocal affirmation of the clear and present danger rule in the religious freedom area, and in Philippine jurisprudence, for that matter. [315] The case did not clearly show, however, whether the Court proceeded to apply the test to the facts and issues of the case, i.e., it did not identify the secular value the government regulation sought to protect, whether the religious speech posed a clear and present danger to this or other secular value protected by government, or whether there was danger but it could not be characterized as clear and present. It is one thing to apply the test and find that there is no clear and present danger, and quite another not to apply the test altogether. Instead, the Court categorically held that the questioned ordinances were not applicable to plaintiff as it was not engaged in the business or occupation of selling said merchandise for profit. To add, the Court, citing Murdock v. Pennsylvania,[316] ruled that applying the ordinance requiring it to secure a license and pay a license fee or tax would impair its free exercise of religious profession and worship and its right of dissemination of religious beliefs as the power to tax the exercise of a privilege is the power to control or suppress its enjoyment. Thus, in American Bible Society, the clear and present danger rule was laid down but it was not clearly applied. In the much later case of Tolentino v. Secretary of Finance, [317] also involving the sale of religious books, the Court distinguished the American Bible Society case from the facts and issues in Tolentino and did not apply theAmerican Bible Society ruling. In Tolentino, the Philippine Bible Society challenged the validity of the registration provisions of the Value Added Tax (VAT) Law as a prior restraint. The Court held, however, that the fixed amount of registration fee was not imposed for the exercise of a privilege like a license tax which American Bible Society ruled was violative of religious freedom. Rather, the registration fee was merely an administrative fee to defray part of the cost of registration which was a central feature of the VAT system. Citing Jimmy Swaggart Ministries v. Board of Equalization,[318] the Court also declared prefatorily that the Free Exercise of Religion Clause does not prohibit imposing a generally applicable sales and use tax on the sale of religious materials by a religious organization. In the Courts resolution of the motion for reconsideration of the Tolentino decision, the Court noted that the burden on religious freedom caused by the tax was just similar to any other economic imposition that might make the right to disseminate religious doctrines costly. Two years after American Bible Society came the 1959 case of Gerona v. Secretary of Education,[319] this time involving conduct expressive of religious belief colliding with a rule prescribed in accordance with law. In this case, petitioners were members of the Jehovahs Witnesses. They challenged a Department Order issued by the Secretary of Education implementing Republic Act No. 1265 which prescribed compulsory flag ceremonies in all public schools. In violation of the Order, petitioners children refused to salute the Philippine flag, sing the national anthem, or recite the patriotic pledge, hence they were expelled from school. Seeking protection under the Free Exercise Clause, petitioners claimed that their refusal was on account of their religious belief that the Philippine flag is an image and saluting the same is contrary to their religious belief. The Court stated, viz:

. . . If the exercise of religious belief clashes with the established institutions of society and with the law, then the former must yield to the latter. The Government steps in and either restrains said exercise or even prosecutes the one exercising it. (emphasis supplied)[320] The Court then proceeded to determine if the acts involved constituted a religious ceremony in conflict with the beliefs of the petitioners with the following justification: After all, the determination of whether a certain ritual is or is not a religious ceremony must rest with the courts. It cannot be left to a religious group or sect, much less to a follower of said group or sect; otherwise, there would be confusion and misunderstanding for there might be as many interpretations and meaning to be given to a certain ritual or ceremony as there are religious groups or sects or followers, all depending upon the meaning which they, though in all sincerity and good faith, may want to give to such ritual or ceremony.[321] It was held that the flag was not an image, the flag salute was not a religious ceremony, and there was nothing objectionable about the singing of the national anthem as it speaks only of love of country, patriotism, liberty and the glory of suffering and dying for it. The Court upheld the questioned Order and the expulsion of petitioners children, stressing that: Men may differ and do differ on religious beliefs and creeds, government policies, the wisdom and legality of laws, even the correctness of judicial decisions and decrees; but in the field of love of country, reverence for the flag, national unity and patriotism, they can hardly afford to differ, for these are matters in which they are mutually and vitally interested, for to them, they mean national existence and survival as a nation or national extinction.[322] In support of its ruling, the Court cited Justice Frankfurters dissent in the Barnette case, viz: The constitutional protection of religious freedom x x x gave religious equality, not civil immunity. Its essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma.[323] It stated in categorical terms, viz: The freedom of religious belief guaranteed by the Constitution does not and cannot mean exemption from or non-compliance with reasonable and non-discriminatory laws, rules and regulations promulgated by competent authority.[324] Thus, the religious freedom doctrines one can derive from Gerona are: (1) it is incumbent upon the Court to determine whether a certain ritual is religious or not; (2) religious freedom will not be upheld if it clashes with the established institutions of society and with the law such that when a law of general applicability (in this case the Department Order) incidentally burdens the exercise of ones religion, ones right to religious freedom cannot justify exemption from compliance with the law. The Gerona ruling was reiterated in Balbuna, et al. v. Secretary of Education, et al.[325] Fifteen years after Gerona came the 1974 case of Victoriano v. Elizalde Rope Workers Union. In this unanimously decided en banc case, Victoriano was a member of the Iglesia ni Cristo which prohibits the affiliation of its members with any labor organization. He worked in the Elizalde Rope Factory, Inc. and was a member of the Elizalde Rope Workers Union which had with the company a closed shop provision pursuant to Republic Act No. 875 allowing closed shop arrangements. Subsequently, Republic Act No. 3350 was enacted exempting from the application and coverage of a closed shop agreement employees belonging to any religious sect which prohibits affiliation of their members with any labor organization. Victoriano resigned from the union after Republic Act No. 3350 took effect. The union notified the company of Victorianos resignation, which in turn notified Victoriano that unless he could make a satisfactory arrangement with the union, the company would be
[326]

constrained to dismiss him from the service. Victoriano sought to enjoin the company and the union from dismissing him. The court having granted the injunction, the union came to this Court on questions of law, among which was whether Republic Act No. 3350 was unconstitutional for impairing the obligation of contracts and for granting an exemption offensive of the Establishment Clause. With respect to the first issue, the Court ruled, viz: Religious freedom, although not unlimited, is a fundamental personal right and liberty (Schneider v. Irgington, 308 U.S. 147, 161, 84 L.ed.155, 164, 60 S.Ct. 146) and has a preferred position in the hierarchy of values. Contractual rights, therefore, must yield to freedom of religion. It is only where unavoidably necessary to prevent an immediate and grave danger to the security and welfare of the community that infringement of religious freedom may be justified, and only to the smallest extent necessary.[327] (emphasis supplied) As regards the Establishment Clause issue, the Court after citing the constitutional provision on establishment and free exercise of religion, declared, viz: The constitutional provisions not only prohibits legislation for the support of any religious tenets or the modes of worship of any sect, thus forestalling compulsion by law of the acceptance of any creed or the practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures the free exercise of ones chosen form of religion within limits of utmost amplitude. It has been said that the religion clauses of the Constitution are all designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the common good. (footnote omitted). Any legislation whose effect or purpose is to impede the observance of one or all religions, or to discriminate invidiously between the religions, is invalid, even though the burden may be characterized as being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates conduct by enacting, within its power, a general law which has for its purpose and effect to advance the states secular goals, the statute is valid despite its indirect burden on religious observance, unless the state can accomplish its purpose without imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and 449) [328] (emphasis supplied) Quoting Aglipay v. Ruiz,[329] the Court held that government is not precluded from pursuing valid objectives secular in character even if the incidental result would be favorable to a religion or sect. It also cited Board of Education v. Allen,[330] which held that in order to withstand the strictures of constitutional prohibition, a statute must have a secular legislative purpose and a primary effect that neither advances nor inhibits religion. Using these criteria in upholding Republic Act No. 3350, the Court pointed out, viz: (Republic Act No. 3350) was intended to serve the secular purpose of advancing the constitutional right to the free exercise of religion, by averting that certain persons be refused work, or be dismissed from work, or be dispossessed of their right to work and of being impeded to pursue a modest means of livelihood, by reason of union security agreements. . . . The primary effects of the exemption from closed shop agreements in favor of members of religious sects that prohibit their members from affiliating with a labor organization, is the protection of said employees against the aggregate force of the collective bargaining agreement, and relieving certain citizens of a burden on their religious beliefs, and . . . eliminating to a certain extent economic insecurity due to unemployment. [331] The Court stressed that (a)lthough the exemption may benefit those who are members of religious sects that prohibit their members from joining labor unions, the benefit upon the religious sects is merely incidental and indirect.[332] In enacting Republic Act No. 3350, Congress merely relieved the exercise of religion by certain persons of a burden imposed by union security agreements which Congress itself also imposed through the Industrial Peace Act. The Court concluded the issue of exemption by citing Sherbert which laid down the rule that when general laws conflict with scruples of conscience, exemptions ought to be granted unless some compelling state interest intervenes. The Court then abruptly added that (i)n the instant case, We see no compelling state interest to withhold exemption. [333]

A close look at Victoriano would show that the Court mentioned several tests in determining when religious freedom may be validly limited. First, the Court mentioned the test of immediate and grave danger to the security and welfare of the community and infringement of religious freedom only to the smallest extent necessary to justify limitation of religious freedom. Second, religious exercise may be indirectly burdened by a general law which has for its purpose and effect the advancement of the states secular goals, provided that there is no other means by which the state can accomplish this purpose without imposing such burden. Third, the Court referred to the compelling state interest test which grants exemptions when general laws conflict with religious exercise, unless a compelling state interest intervenes. It is worth noting, however, that the first two tests were mentioned only for the purpose of highlighting the importance of the protection of religious freedom as the secular purpose of Republic Act No. 3350. Upholding religious freedom was a secular purpose insofar as it relieved the burden on religious freedom caused by another law, i.e, the Industrial Peace Act providing for union shop agreements. The first two tests were only mentioned in Victoriano but were not applied by the Court to the facts and issues of the case. The third, the compelling state interest test was employed by the Court to determine whether the exemption provided by Republic Act No. 3350 was not unconstitutional. It upheld the exemption, stating that there was no compelling state interest to strike it down. However, after careful consideration of the Sherbert case from which Victoriano borrowed this test, the inevitable conclusion is that the compelling state interest test was not appropriate and could not find application in the Victoriano case. In Sherbert, appellant Sherbert invoked religious freedom in seeking exemption from the provisions of the South Carolina Unemployment Compensation Act which disqualified her from claiming unemployment benefits. It was the appellees, members of the South Carolina Employment Commission, a government agency, who propounded the state interest to justify overriding Sherberts claim of religious freedom. The U.S. Supreme Court, considering Sherberts and the Commissions arguments, found that the state interest was not sufficiently compelling to prevail over Sherberts free exercise claim. This situation did not obtain in the Victoriano case where it was the government itself, through Congress, which provided the exemption in Republic Act No. 3350 to allow Victorianos exercise of religion. Thus, the government could not argue against the exemption on the basis of a compelling state interest as it would be arguing against itself; while Victoriano would not seek exemption from the questioned law to allow the free exercose of religion as the law in fact provides such an exemption. In sum, although Victoriano involved a religious belief and conduct, it did not involve a free exercise issue where the Free Exercise Clause is invoked to exempt him from the burden imposed by a law on his religious freedom. Victoriano was reiterated in several cases involving the Iglesia ni Cristo, namely Basa, et al. v. Federacion Obrera de la Industria Tabaquera y Otros Trabajadores de Filipinas ,[334] Anucension v. National Labor Union, et al.,[335] and Gonzales, et al. v. Central Azucarera de Tarlac Labor Union .[336] Then came German v. Barangan in 1985 at the height of the anti-administration rallies. Petitioners were walking to St. Jude Church within the Malacanang security area to pray for an end to violence when they were barred by the police. Invoking their constitutional freedom of religious worship and locomotion, they came to the Court on a petition for mandamus to allow them to enter and pray inside the St. Jude Chapel. The Court was divided on the issue. The slim majority of six recognized their freedom of religion but noted their absence of good faith and concluded that they were using their religious liberty to express their opposition to the government. Citing Cantwell, the Court distinguished between freedom to believe and freedom to act on matters of religion, viz: . . . Thus the (First) amendment embraces two concepts - freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be. [337] The Court reiterated the Gerona ruling, viz: In the case at bar, petitioners are not denied or restrained of their freedom of belief or choice of their religion, but only in the manner by which they had attempted to translate the same to action. This

curtailment is in accord with the pronouncement of this Court in Gerona v. Secretary of Education (106 Phil. 2), thus: . . . But between the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel. If the exercise of said religious belief clashes with the established institutions of society and with the law, then the former must yield and give way to the latter. The government steps in and either restrains said exercise or even prosecutes the one exercising it. (italics supplied) The majority found that the restriction imposed upon petitioners was necessary to maintain the smooth functioning of the executive branch of the government, which petitioners mass action would certainly disrupt[338] and denied the petition. Thus, without considering the tests mentioned in Victoriano, German went back to the Gerona rule that religious freedom will not be upheld if it clashes with the established institutions of society and the law. Then Associate Justice Teehankee registered a dissent which in subsequent jurisprudence would be cited as a test in religious freedom cases. His dissent stated in relevant part, viz: A brief restatement of the applicable constitutional principles as set forth in the landmark case of J.B.L. Reyes v. Bagatsing (125 SCRA 553[1983]) should guide us in resolving the issues. 1. The right to freely exercise ones religion is guaranteed in Section 8 of our Bill of Rights. (footnote omitted) Freedom of worship, alongside with freedom of expression and speech and peaceable assembly along with the other intellectual freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly stressed that on the judiciary - even more so than on the other departments - rests the grave and delicate responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitously termed by Justice Holmes as the sovereign prerogative of judgment. Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying as they do precedence and primacy. (J.B.L. Reyes, 125 SCRA at pp. 569-570) 2. In the free exercise of such preferred rights, there is to be no prior restraint although there may be subsequent punishment of any illegal acts committed during the exercise of such basic rights. The sole justification for a prior restraint or limitation on the exercise of these basic rights is the existence of a grave and present danger of a character both grave and imminent, of a serious evil to public safety, public morals, public health or any other legitimate public interest, that the State has a right (and duty) to prevent (Idem, at pp. 560-561).[339] (emphasis supplied) The J.B.L. Reyes v. Bagatsing case from which this portion of Justice Teehankees dissent was taken involved the rights to free speech and assembly, and not the exercise of religious freedom. At issue in that case was a permit sought by retired Justice J.B.L. Reyes, on behalf of the Anti-Bases Coalition, from the City of Manila to hold a peaceful march and rally from the Luneta to the gates of the U.S. Embassy. Nevertheless Bagatsing was used by Justice Teehankee in his dissent which had overtones of petitioner German and his companions right to assemble and petition the government for redress of grievances.[340] In 1993, the issue on the Jehovahs Witnesses participation in the flag ceremony again came before the Court in Ebralinag v. The Division Superintendent of Schools. [341] A unanimous Court overturned the Gerona ruling after three decades. Similar to Gerona, this case involved several Jehovahs Witnesses who were expelled from school for refusing to salute the flag, sing the national anthem and recite the patriotic pledge, in violation of the Administrative Code of 1987. In resolving the same religious freedom issue as in Gerona, the Court this time transported the grave and imminent danger test laid down in Justice Teehankees dissent in German, viz: The sole justification for a prior restraint or limitation on the exercise of religious freedom (according to the late Chief Justice Claudio Teehankee in his dissenting opinion in German v. Barangan, 135 SCRA

514, 517) is the existence of a grave and present danger of a character both grave and imminent, of a serious evil to public safety, public morals, public health or any other legitimate public interest, that the State has a right (and duty) to prevent. Absent such a threat to public safety, the expulsion of the petitioners from the schools is not justified.[342] (emphasis supplied) The Court added, viz: We are not persuaded that by exempting the Jehovahs Witnesses from saluting the flag, singing the national anthem and reciting the patriotic pledge, this religious group which admittedly comprises a small portion of the school population will shake up our part of the globe and suddenly produce a nation untaught and uninculcated in and unimbued with reverence for the flag, patriotism, love of country and admiration for national heroes (Gerona v. Secretary of Education, 106 Phil. 224). After all, what the petitioners seek only is exemption from the flag ceremony, not exclusion from the public schools where they may study the Constitution, the democratic way of life and form of government, and learn not only the arts, sciences, Philippine history and culture but also receive training for a vocation or profession and be taught the virtues of patriotism, respect for human rights, appreciation of national heroes, the rights and duties of citizenship, and moral and spiritual values (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the curricula. Expelling or banning the petitioners from Philippine schools will bring about the very situation that this Court has feared in Gerona. Forcing a small religious group, through the iron hand of the law, to participate in a ceremony that violates their religious beliefs, will hardly be conducive to love of country or respect for duly constituted authorities. [343] Barnette also found its way to the opinion, viz: Furthermore, let it be noted that coerced unity and loyalty even to the country, x x x- assuming that such unity and loyalty can be attained through coercion- is not a goal that is constitutionally obtainable at the expense of religious liberty. A desirable end cannot be promoted by prohibited means. (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046). [344] Towards the end of the decision, the Court also cited the Victoriano case and its use of the compelling state interest test in according exemption to the Jehovahs Witnesses, viz: In Victoriano vs. Elizalde Rope Workers Union, 59 SCRA 54, 72-75, we upheld the exemption of members of the Iglesia ni Cristo, from the coverage of a closed shop agreement between their employer and a union because it would violate the teaching of their church not to join any group: x x x It is certain that not every conscience can be accommodated by all the laws of the land; but when general laws conflict with scruples of conscience, exemptions ought to be granted unless some compelling state interest intervenes. (Sherbert vs. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S.Ct. 1790) We hold that a similar exemption may be accorded to the Jehovahs Witnesses with regard to the observance of the flag ceremony out of respect for their religious beliefs, however bizarre those beliefs may seem to others.[345] The Court annulled the orders expelling petitioners from school. Thus, the grave and imminent danger test laid down in a dissenting opinion in German which involved prior restraint of religious worship with overtones of the right to free speech and assembly, was transported to Ebralinag which did not involve prior restraint of religious worship, speech or assembly. Although, it might be observed that the Court faintly implied that Ebralinag also involved the right to free speech when in its preliminary remarks, the Court stated that compelling petitioners to participate in the flag ceremony is alien to the conscience of the present generation of Filipinos who cut their teeth on the Bill of Rights which guarantees their rights to free speech and the free exercise of

religious profession and worship; the Court then stated in a footnote that the flag salute, singing the national anthem and reciting the patriotic pledge are all forms of utterances. [346] The compelling state interest test was not fully applied by the Court in Ebralinag. In the Solicitor Generals consolidated comment, one of the grounds cited to defend the expulsion orders issued by the public respondents was that (t)he States compelling interests being pursued by the DECs lawful regulations in question do not warrant exemption of the school children of the Jehovahs Witnesses from the flag salute ceremonies on the basis of their own self-perceived religious convictions. [347] The Court, however, referred to the test only towards the end of the decision and did not even mention what the Solicitor General argued as the compelling state interest, much less did the Court explain why the interest was not sufficiently compelling to override petitioners religious freedom. Three years after Ebralinag, the Court decided the 1996 case of Iglesia ni Cristo v. Court of Appeals, et al.[348] Although there was a dissent with respect to the applicability of the clear and present danger test in this case, the majority opinion in unequivocal terms applied the clear and present danger test to religious speech. This case involved the television program, Ang Iglesia ni Cristo, regularly aired over the television. Upon petitioner Iglesia ni Cristos submission of the VTR tapes of some of its episodes, respondent Board of Review for Motion Pictures and Television classified these as X or not for public viewing on the ground that they offend and constitute an attack against other religions which is expressly prohibited by law. Invoking religious freedom, petitioner alleged that the Board acted without jurisdiction or with grave abuse of discretion in requiring it to submit the VTR tapes of its television program and x-rating them. While upholding the Boards power to review the Iglesia television show, the Court was emphatic about the preferred status of religious freedom. Quoting Justice Cruz commentary on the constitution, the Court held that freedom to believe is absolute but freedom to act on ones belief, where it affects the public, is subject to the authority of the state. The commentary quoted Justice Frankfurters dissent in Barnette which was quoted in Gerona, viz: (t)he constitutional provision on religious freedom terminated disabilities, it did not create new privileges. It gave religious liberty, not civil immunity. Its essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma. [349] Nevertheless, the Court was quick to add the criteria by which the state can regulate the exercise of religious freedom, that is, when the exercise will bring about the clear and present danger of some substantive evil which the State is duty bound to prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or public welfare. [350] In annulling the x-rating of the shows, the Court stressed that the Constitution is hostile to all prior restraints on speech, including religious speech and the x-rating was a suppression of petitioners freedom of speech as much as it was an interference with its right to free exercise of religion. Citing Cantwell, the Court recognized that the different religions may criticize one another and their tenets may collide, but the Establishment Clause prohibits the state from protecting any religion from this kind of attack. The Court then called to mind the clear and present danger test first laid down in the American Bible Society case and the test of immediate and grave danger with infringement only to the smallest extent necessary to avoid danger in Victoriano and pointed out that the reviewing board failed to apply the clear and present danger test. Applying the test, the Court noted, viz: The records show that the decision of the respondent Board, affirmed by the respondent appellate court, is completely bereft of findings of facts to justify the conclusion that the subject video tapes constitute impermissible attacks against another religion. There is no showing whatsoever of the type of harm the tapes will bring about especially the gravity and imminence of the threatened harm. Prior restraint on speech, including religious speech, cannot be justified by hypothetical fears but only by the showing of a substantive and imminent evil which has taken the life of a reality already on ground. Replying to the challenge on the applicability of the clear and present danger test to the case, the Court acknowledged the permutations that the test has undergone, but stressed that the test is still applied to four types of speech: speech that advocates dangerous ideas, speech that provokes a hostile audience reaction, out of court contempt and release of information that endangers a fair trial [351] and ruled, viz:

. . . even allowing the drift of American jurisprudence, there is reason to apply the clear and present danger test to the case at bar which concerns speech that attacks other religions and could readily provoke hostile audience reaction. It cannot be doubted that religious truths disturb and disturb terribly .
[352]

In Iglesia therefore, the Court went back to Gerona insofar as holding that religious freedom cannot be invoked to seek exemption from compliance with a law that burdens ones religious exercise. It also reiterated the clear and present danger test in American Bible Society and the grave and imminent danger in Victoriano, but this time clearly justifying its applicability and showing how the test was applied to the case. In sum, the Philippine Supreme Court has adopted a posture of not invalidating a law offensive to religious freedom, but carving out an exception or upholding an exception to accommodate religious exercise where it is justified.[353]

2. Establishment Clause In Philippine jurisdiction, there is substantial agreement on the values sought to be protected by the Establishment Clause, namely, voluntarism and insulation of the political process from interfaith dissension. Thefirst, voluntarism, has both a personal and a social dimension. As a personal value, it refers to the inviolability of the human conscience which, as discussed above, is also protected by the free exercise clause. From the religious perspective, religion requires voluntarism because compulsory faith lacks religious efficacy. Compelled religion is a contradiction in terms.[354] As a social value, it means that the growth of a religious sect as a social force must come from the voluntary support of its members because of the belief that both spiritual and secular society will benefit if religions are allowed to compete on their own intrinsic merit without benefit of official patronage. Such voluntarism cannot be achieved unless the political process is insulated from religion and unless religion is insulated from politics.[355] Non-establishment thus calls for government neutrality in religious matters to uphold voluntarism and avoid breeding interfaith dissension. [356] The neutrality principle was applied in the first significant non-establishment case under the 1935 Constitution. In the 1937 case of Aglipay v. Ruiz,[357] the Philippine Independent Church challenged the issuance and sale of postage stamps commemorating the Thirty-Third International Eucharistic Congress of the Catholic Church on the ground that the constitutional prohibition against the use of public money for religious purposes has been violated. It appears that the Director of Posts issued the questioned stamps under the provisions of Act No. 4052 [358] which appropriated a sum for the cost of plates and printing of postage stamps with new designs and authorized the Director of Posts to dispose of the sum in a manner and frequency advantageous to the Government. The printing and issuance of the postage stamps in question appears to have been approved by authority of the President. Justice Laurel, speaking for the Court, took pains explaining religious freedom and the role of religion in society, and in conclusion, found no constitutional infirmity in the issuance and sale of the stamps, viz: The prohibition herein expressed is a direct corollary of the principle of separation of church and state. Without the necessity of adverting to the historical background of this principle in our country, it is sufficient to say that our history, not to speak of the history of mankind, has taught us that the union of church and state is prejudicial to both, for occasions might arise when the state will use the church, and the church the state, as a weapon in the furtherance of their respective ends and aims . . . It is almost trite to say now that in this country we enjoy both religious and civil freedom. All the officers of the Government, from the highest to the lowest, in taking their oath to support and defend the Constitution, bind themselves to recognize and respect the constitutional guarantee of religious freedom, with its inherent limitations and recognized implications. It should be stated that what is guaranteed by our Constitution is religious liberty, not mere toleration.

Religious freedom, however, as a constitutional mandate is not an inhibition of profound reverence for religion and is not a denial of its influence in human affairs. Religion as a profession of faith to an active power that binds and elevates man to his Creator is recognized. And, in so far as it instills into the minds the purest principles of morality, its influence is deeply felt and highly appreciated. When the Filipino people, in the preamble of their Constitution, implored the aid of Divine Providence, in order to establish a government that shall embody their ideals, conserve and develop the patrimony of the nation, promote the general welfare, and secure to themselves and their posterity the blessings of independence under a regime of justice, liberty and democracy, they thereby manifested their intense religious nature and placed unfaltering reliance upon Him who guides the destinies of men and nations. The elevating influence of religion in human society is recognized here as elsewhere . In fact, certain general concessions are indiscriminately accorded to religious sects and denominations. . . [359] xxx xxx xxx

It is obvious that while the issuance and sale of the stamps in question may be said to be inseparably linked with an event of a religious character, the resulting propaganda, if any, received by the Roman Catholic Church, was not the aim and purpose of the Government. We are of the opinion that the Government should not be embarrassed in its activities simply because of incidental results, more or less religious in character, if the purpose had in view is one which could legitimately be undertaken by appropriate legislation. The main purpose should not be frustrated by its subordination to mere incidental results not contemplated. (Vide Bradfield vs. Roberts, 175 U.S. 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168)[360] (emphases supplied) In so deciding the case, the Court, citing U.S. jurisprudence, laid down the doctrine that a law or government action with a legitimate secular purpose does not offend the Establishment Clause even if it incidentally aids a particular religion. Almost forty-five years after Aglipay came Garces v. Estenzo.[361] Although the Court found that the separation of church and state was not at issue as the controversy was over who should have custody of a saints image, it nevertheless made pronouncements on the separation of church and state along the same line as the Aglipay ruling. The Court held that there was nothing unconstitutional or illegal in holding a fiesta and having a patron saint for the barrio. It adhered to the barrio resolutions of the barangay involved in the case stating that the barrio fiesta is a socio-religious affair, the celebration of which is an ingrained tradition in rural communities that relieves the monotony and drudgery of the lives of the masses. Corollarily, the Court found nothing illegal about any activity intended to facilitate the worship of the patron saint such as the acquisition and display of his image bought with funds obtained through solicitation from thebarrio residents. The Court pointed out that the image of the patron saint was purchased in connection with the celebration of the barrio fiesta honoring the patron saint, San Vicente Ferrer, and not for the purpose of favoring any religion nor interfering with religious matters or the religious beliefs of the barrio residents. Citing the Aglipay ruling, the Court declared, viz: Not every governmental activity which involves the expenditure of public funds and which has some religious tint is violative of the constitutional provisions regarding separation of church and state, freedom of worship and banning the use of public money or property. Then came the 1978 case of Pamil v. Teleron, et al. [362] which presented a novel issue involving the religion clauses. In this case, Section 2175 of the Revised Administrative Code of 1917 disqualifying ecclesiastics from appointment or election as municipal officer was challenged. After protracted deliberation, the Court was sharply divided on the issue. Seven members of the Court, one short of the number necessary to declare a law unconstitutional, approached the problem from a free exercise perspective and considered the law a religious test offensive of the constitution. They were Justices Fernando, Teehankee, Muoz-Palma, Concepcion, Jr., Santos, Fernandez, and Guerrero. Then Associate Justice Fernando, the ponente, stated, viz: The challenged Administrative Code provision,

certainly insofar as it declares ineligible ecclesiastics to any elective or appointive office, is, on its face, inconsistent with the religious freedom guaranteed by the Constitution. Citing Torcaso v. Watkins, [363] the ponencia held, viz: Torcaso v. Watkins, an American Supreme Court decision, has persuasive weight. What was there involved was the validity of a provision in the Maryland Constitution prescribing that no religious test ought ever to be required as a disqualification for any office or profit or trust in this State, other than a declaration of belief in the existence of God ***. Such a constitutional requirement was assailed as contrary to the First Amendment of the United States Constitution by an appointee to the office of notary public in Maryland, who was refused a commission as he would not declare a belief in God. He failed in the Maryland Court of Appeals but prevailed in the United States Supreme Court, which reversed the state court decision. It could not have been otherwise. As emphatically declared by Justice Black: this Maryland religious test for public office unconstitutionally invades the appellants freedom of belief and religion and therefore cannot be enforced against him. The analogy appears to be obvious. In that case, it was lack of belief in God that was a disqualification. Here being an ecclesiastic and therefore professing a religious faith suffices to disqualify for a public office. There is thus an incompatibility between the Administrative Code provision relied upon by petitioner and an express constitutional mandate. [364] On the other hand, the prevailing five other members of the Court - Chief Justice Castro, Justices Barredo, Makasiar, Antonio and Aquino - approached the case from a non-establishment perspective and upheld the law as a safeguard against the constant threat of union of church and state that has marked Philippine history. Justice Makasiar stated: To allow an ecclesiastic to head the executive department of a municipality is to permit the erosion of the principle of separation of Church and State and thus open the floodgates for the violation of the cherished liberty of religion which the constitutional provision seeks to enforce and protect. Consequently, the Court upheld the validity of Section 2175 of the Revised Administrative Code and declared respondent priest ineligible for the office of municipal mayor. Another type of cases interpreting the establishment clause deals with intramural religious disputes. Fonacier v. Court of Appeals[365] is the leading case. The issue therein was the right of control over certain properties of the Philippine Independent Church, the resolution of which necessitated the determination of who was the legitimate bishop of the church. The Court cited American Jurisprudence,[366] viz: Where, however, a decision of an ecclesiastical court plainly violates the law it professes to administer, or is in conflict with the law of the land, it will not be followed by the civil courts. . . In some instances, not only have the civil courts the right to inquire into the jurisdiction of the religious tribunals and the regularity of their procedure, but they have subjected their decisions to the test of fairness or to the test furnished by the constitution and the law of the church. . .[367] The Court then ruled that petitioner Fonacier was legitimately ousted and respondent de los Reyes was the duly elected head of the Church, based on their internal laws. To finally dispose of the property issue, the Court, citing Watson v. Jones,[368] declared that the rule in property controversies within religious congregations strictly independent of any other superior ecclesiastical association (such as the Philippine Independent Church) is that the rules for resolving such controversies should be those of any voluntary association. If the congregation adopts the majority rule then the majority should prevail; if it adopts adherence to duly constituted authorities within the congregation, then that should be followed. Applying these rules, Fonacier lost the case. While the Court exercised jurisdiction over the case, it nevertheless refused to touch doctrinal and disciplinary differences raised, viz: The amendments of the constitution, restatement of articles of religion and abandonment of faith or abjuration alleged by appellant, having to do with faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church and having reference to the power of excluding from the church those

allegedly unworthy of membership, are unquestionably ecclesiastical matters which are outside the province of the civil courts.[369]

VIII. Free Exercise Clause vis--vis Establishment Clause In both Philippine and U.S. jurisdiction, it is recognized that there is a tension between the Free Exercise Clause and the Establishment Clause in their application. There is a natural antagonism between a command not to establish religion and a command not to inhibit its practice; this tension between the religion clauses often leaves the courts with a choice between competing values in religion cases.[370] One set of facts, for instance, can be differently viewed from the Establishment Clause perspective and the Free Exercise Clause point of view, and decided in opposite directions. In Pamil, the majority gave more weight to the religious liberty of the priest in holding that the prohibition of ecclesiastics to assume elective or appointive government positions was violative of the Free Exercise Clause. On the other hand, the prevailing five justices gave importance to the Establishment Clause in stating that the principle of separation of church and state justified the prohibition. Tension is also apparent when a case is decided to uphold the Free Exercise Clause and consequently exemptions from a law of general applicability are afforded by the Court to the person claiming religious freedom; the question arises whether the exemption does not amount to support of the religion in violation of the Establishment Clause. This was the case in the Free Exercise Clause case of Sherbert where the U.S. Supreme Court ruled, viz: In holding as we do, plainly we are not fostering the establishment of the Seventh-day Adventist religion in South Carolina, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall. [371] (emphasis supplied) Tension also exists when a law of general application provides exemption in order to uphold free exercise as in the Walz case where the appellant argued that the exemption granted to religious organizations, in effect, required him to contribute to religious bodies in violation of the Establishment Clause. But the Court held that the exemption was not a case of establishing religion but merely upholding the Free Exercise Clause by sparing the exercise of religion from the burden of property taxation levied on private profit institutions. Justice Burger wrote, viz: (t)he Court has struggled to find a neutral course between the two religion clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other.[372] Similarly, the Philippine Supreme Court in the Victoriano case held that the exemption afforded by law to religious sects who prohibit their members from joining unions did not offend the Establishment Clause. We ruled, viz: We believe that in enacting Republic Act No. 3350, Congress acted consistently with the spirit of the constitutional provision. It acted merely to relieve the exercise of religion, by certain persons, of a burden that is imposed by union security agreements. [373] (emphasis supplied) Finally, in some cases, a practice is obviously violative of the Establishment Clause but the Court nevertheless upholds it. In Schempp, Justice Brennan stated: (t)here are certain practices, conceivably violative of the Establishment Clause, the striking down of which might seriously interfere with certain religious liberties also protected by the First Amendment.

How the tension between the Establishment Clause and the Free Exercise Clause will be resolved is a question for determination in the actual cases that come to the Court. In cases involving both the Establishment Clause and the Free Exercise Clause, the two clauses should be balanced against each other. The courts must review all the relevant facts and determine whether there is a sufficiently strong free exercise right that should prevail over the Establishment Clause problem. In the United States, it has been proposed that in balancing, the free exercise claim must be given an edge not only because of abundant historical evidence in the colonial and early national period of the United States that the free exercise principle long antedated any broad-based support of disestablishment, but also because an Establishment Clause concern raised by merely accommodating a citizens free exercise of religion seems far less dangerous to the republic than pure establishment cases. Each time the courts side with the Establishment Clause in cases involving tension between the two religion clauses, the courts convey a message of hostility to the religion that in that case cannot be freely exercised. [374] American professor of constitutional law, Laurence Tribe, similarly suggests that the free exercise principle should be dominant in any conflict with the anti-establishment principle. This dominance would be the result of commitment to religious tolerance instead of thwarting at all costs even the faintest appearance of establishment.[375] In our jurisdiction, Fr. Joaquin Bernas, S.J. asserts that a literal interpretation of the religion clauses does not suffice. Modern society is characterized by the expanding regulatory arm of government that reaches a variety of areas of human conduct and an expanding concept of religion. To adequately meet the demands of this modern society, the societal values the religion clauses are intended to protect must be considered in their interpretation and resolution of the tension. This, in fact, has been the approach followed by the Philippine Court. [376]

IX. Philippine Religion Clauses: Nature, Purpose, Tests Based on Philippine and American Religion Clause History, Law and Jurisprudence The history of the religion clauses in the 1987 Constitution shows that these clauses were largely adopted from the First Amendment of the U.S. Constitution. The religion clauses in the First Amendment were contained in every organic Act of the Philippines under the American regime. When the delegates of the 1934 Constitutional Convention adopted a Bill of Rights in the 1935 Constitution, they purposely retained the phraseology of the religion clauses in the First Amendment as contained in the Jones Law in order to adopt its historical background, nature, extent and limitations. At that time, there were not too many religion clause cases in the United States as the U.S. Supreme Court decided an Establishment Clause issue only in the 1947 Everson case. The Free Exercise Clause cases were also scarce then. Over the years, however, with the expanding reach of government regulation to a whole gamut of human actions and the growing plurality and activities of religions, the number of religion clause cases in the U.S. exponentially increased. With this increase came an expansion of the interpretation of the religion clauses, at times reinforcing prevailing case law, at other times modifying it, and still at other times creating contradictions so that two main streams of jurisprudence had become identifiable. The first stream employs separation while the second employs benevolent neutrality in interpreting the religious clauses. Alongside this change in the landscape of U.S. religion clause jurisprudence, the Philippines continued to adopt the 1935 Constitution religion clauses in the 1973 Constitution and later, the 1987 Constitution. Philippine jurisprudence and commentaries on the religious clauses also continued to borrow authorities from U.S. jurisprudence without articulating the stark distinction between the two streams of U.S. jurisprudence. One might simply conclude that the Philippine Constitutions and jurisprudence also inherited the disarray of U.S. religion clause jurisprudence and the two identifiable streams; thus, when a religion clause case comes before the Court, a separationist approach or a benevolent neutrality approach might be adopted and each will have U.S. authorities to support it. Or, one might conclude that as the history of the First Amendment as narrated by the Court inEverson supports the separationist approach, Philippine jurisprudence should also follow this approach in light of the Philippine religion clauses history. As a result, in a case where the party claims religious liberty in the face of a general law that inadvertently burdens his religious exercise, he faces an almost insurmountable wall in convincing the Court that the wall of separation would not be breached if

the Court grants him an exemption. These conclusions, however, are not and were never warranted by the 1987, 1973 and 1935 Constitutions as shown by other provisions on religion in all three constitutions. It is a cardinal rule in constitutional construction that the constitution must be interpreted as a whole and apparently conflicting provisions should be reconciled and harmonized in a manner that will give to all of them full force and effect. [377] From this construction, it will be ascertained that the intent of the framers was to adopt a benevolent neutrality approach in interpreting the religious clauses in the Philippine constitutions, and the enforcement of this intent is the goal of construing the constitution.[378] We first apply the hermeneutical scalpel to dissect the 1935 Constitution. At the same time that the 1935 Constitution provided for an Establishment Clause, it also provided for tax exemption of church property in Article VI, Section 22, par. 3(b), viz: (3) Cemeteries, churches, and parsonages or convents, appurtenant thereto, and all lands, buildings, and improvements used exclusively for religious, charitable, or educational purposes shall be exempt from taxation. Before the advent of the 1935 Constitution, Section 344 of the Administrative Code provided for a similar exemption. To the same effect, the Tydings-McDuffie Law contained a limitation on the taxing power of the Philippine government during the Commonwealth period. [379] The original draft of the Constitution placed this provision in an ordinance to be appended to the Constitution because this was among the provisions prescribed by the Tydings-McDuffie Law. However, in order to have a constitutional guarantee for such an exemption even beyond the Commonwealth period, the provision was introduced in the body of the Constitution on the rationale that if churches, convents [rectories or parsonages] and their accessories are always necessary for facilitating the exercise of such [religious] freedom, it would also be natural that their existence be also guaranteed by exempting them from taxation. [380] The amendment was readily approved with 83 affirmative votes against 15 negative votes. [381] The Philippine constitutional provision on tax exemption is not found in the U.S. Constitution. In the U.S. case of Walz, the Court struggled to justify this kind of exemption to withstand Establishment Clause scrutiny by stating that church property was not singled out but was exempt along with property owned by non-profit, quasi-public corporations because the state upheld the secular policy that considers these groups as beneficial and stabilizing influences in community life and finds this classification useful, desirable, and in the public interest. The Court also stated that the exemption was meant to relieve the burden on free exercise imposed by property taxation. At the same time, however, the Court acknowledged that the exemption was an exercise of benevolent neutrality to accommodate a longstanding tradition of exemption. With the inclusion of the church property tax exemption in the body of the 1935 Constitution and not merely as an ordinance appended to the Constitution, the benevolent neutrality referred to in the Walz case was given constitutional imprimatur under the regime of the 1935 Constitution. The provision, as stated in the deliberations, was an acknowledgment of the necessity of the exempt institutions to the exercise of religious liberty, thereby evincing benevolence towards religious exercise. Similarly, the 1935 Constitution provides in Article VI, Section 23(3), viz: (3) No public money, or property shall ever be appropriated, applied, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution or system of religion, for the use, benefit or support of any priest, preacher, ministers or other religious teacher or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces or to any penal institution, orphanage, or leprosarium. (emphasis supplied) The original draft of this provision was a reproduction of a portion of section 3 of the Jones Law which did not contain the above exception, viz:

No public money or property shall ever be appropriated, applied, or used, directly or indirectly, for the use, benefit, or support of any sect, church denomination, sectarian institution, or system of religion, or for the use, benefit or support of any priest, preacher, minister, or dignitary as such [382] In the deliberations of this draft provision, an amendment was proposed to strike down everything after church denomination.[383] The proposal intended to imitate the silence of the U.S. Constitution on the subject of support for priests and ministers. It was also an imitation of the silence of the Malolos Constitution to restore the situation under the Malolos Constitution and prior to the Jones Law, when chaplains of the revolutionary army received pay from public funds with no doubt about its legality. It was pointed out, however, that even with the prohibition under the Jones Law, appropriations were made to chaplains of the national penitentiary and the Auditor General upheld its validity on the basis of a similar United States practice. But it was also pointed out that the U.S. Constitution did not contain a prohibition on appropriations similar to the Jones Law. [384] To settle the question on the constitutionality of payment of salaries of religious officers in certain government institutions and to avoid the feared situation where the enumerated government institutions could not employ religious officials with compensation, the exception in the 1935 provision was introduced and approved. The provision garnered 74 affirmative votes against 34 negative votes.[385] As pointed out in the deliberations, the U.S. Constitution does not provide for this exemption. However, the U.S. Supreme Court in Cruz v. Beto, apparently taking a benevolent neutrality approach, implicitly approved the state of Texas payment of prison chaplains salaries as reasonably necessary to permit inmates to practice their religion. Also, in the Marsh case, the U.S. Supreme Court upheld the long-standing tradition of beginning legislative sessions with prayers offered by legislative chaplains retained at taxpayers expense. The constitutional provision exempting religious officers in government institutions affirms the departure of the Philippine Constitution from the U.S. Constitution in its adoption of benevolent neutrality in Philippine jurisdiction. While the provision prohibiting aid to religion protects the wall of separation between church and state, the provision at the same time gives constitutional sanction to a breach in the wall. To further buttress the thesis that benevolent neutrality is contemplated in the Philippine Establishment Clause, the 1935 Constitution provides for optional religious instruction in public schools in Article XIII, Section 5, viz: . . . Optional religious instruction shall be maintained in the public schools as now authorized by law. . . The law then applicable was Section 928 of the Administrative Code, viz: It shall be lawful, however, for the priest or minister of any church established in the town where a public school is situated, either in person or by a designated teacher of religion, to teach religion for one-half hour three times a week, in the school building, to those public-school pupils whose parents or guardians desire it and express their desire therefor in writing filed with the principal of the school . . . During the debates of the Constitutional Convention, there were three positions on the issue of religious instruction in public schools. The first held that the teaching of religion in public schools should be prohibited as this was a violation of the principle of separation of church and state and the prohibition against the use of public funds for religious purposes. The second favored the proposed optional religious instruction as authorized by the Administrative Code and recognized that the actual practice of allowing religious instruction in the public schools was sufficient proof that religious instruction was not and would not be a source of religious discord in the schools. [386] The third wanted religion to be included as a course in the curriculum of the public schools but would only be taken by pupils at the option of their parents or guardians. After several rounds of debate, the second camp prevailed, thus raising to constitutional stature the optional teaching of religion in public schools, despite the opposition to the provision on the ground of separation of church and state. [387] As in the provisions on church property tax exemption and compensation of religious officers in government institutions, the U.S. Constitution does not provide for optional religious instruction in public schools. In fact, in the McCollum case, the Court, using strict neutrality, prohibited this kind of religious instruction where the religion teachers would conduct class within the school premises. The constitutional provision on optional religious instruction

shows that Philippine jurisdiction rejects the strict neutrality approach which does not allow such accommodation of religion. Finally, to make certain the Constitutions benevolence to religion, the Filipino people implored (ing) the aid of Divine Providence (,) in order to establish a government that shall embody their ideals, conserve and develop the patrimony of the nation, promote the general welfare, and secure to themselves and their posterity the blessings of independence under a regime of justice, liberty, and democracy, (in) ordain(ing) and promulgat(ing) this Constitution. A preamble is a key to open the mind of the authors of the constitution as to the evil sought to be prevented and the objects sought to be accomplished by the provisions thereof. [388] There was no debate on the inclusion of a Divine Providence in the preamble. In Aglipay, Justice Laurel noted that when the Filipino people implored the aid of Divine Providence, (t)hey thereby manifested their intense religious nature and placed unfaltering reliance upon Him who guides the destinies of men and nations. [389] The 1935 Constitutions religion clauses, understood alongside the other provisions on religion in the Constitution, indubitably shows not hostility, but benevolence, to religion.[390] The 1973 Constitution contained in Article VI, Section 22(3) a provision similar to Article VI, Section 22, par. 3(b) of the 1935 Constitution on exemption of church property from taxation, with the modification that the property should not only be used directly, but also actually and exclusively for religious or charitable purposes. Parallel to Article VI, Section 23(3) of the 1935 Constitution, the 1973 Constitution also contained a similar provision on salaries of religious officials employed in the enumerated government institutions. Article XIII, Section 5 of the 1935 Constitution on optional religious instruction was also carried to the 1973 Constitution in Article XV, Section 8(8) with the modification that optional religious instruction shall be conducted as may be provided by law and not as now authorized by law as stated in the 1935 Constitution. The 1973 counterpart, however, made explicit in the constitution that the religious instruction in public elementary and high schools shall be done (a)t the option expressed in writing by the parents or guardians, and without cost to them and the government. With the adoption of these provisions in the 1973 Constitution, the benevolent neutrality approach continued to enjoy constitutional sanction. In Article XV, Section 15 of the General Provisions of the 1973 Constitution this provision made its maiden appearance: (t)he separation of church and state shall be inviolable. The 1973 Constitution retained the portion of the preamble imploring the aid of Divine Providence. In the Report of the Ad Hoc Sub-Committee on Goals, Principles and Problems of the Committee on Church and State of the 1971 Constitutional Convention, the question arose as to whether the absolute separation of Church and State as enunciated in the Everson case and reiterated in Schempp - i.e., neutrality not only as between one religion and another but even as between religion and non-religion - is embodied in the Philippine Constitution. The sub-committees answer was that it did not seem so. Citing the Aglipay case where Justice Laurel recognized the elevating influence of religion in human society and the Filipinos imploring of Divine Providence in the 1935 Constitution, the sub-committee asserted that the state may not prefer or aid one religion over another, but may aid all religions equally or the cause of religion in general.[391] Among the position papers submitted to the Committee on Church on State was a background paper for reconsideration of the religion provisions of the constitution by Fr. Bernas, S.J. He stated therein that the Philippine Constitution is not hostile to religion and in fact recognizes the value of religion and accommodates religious values. [392] Stated otherwise, the Establishment Clause contemplates not a strict neutrality but benevolent neutrality. While the Committee introduced the provision on separation of church and state in the General Provisions of the 1973 Constitution, this was nothing new as according to it, this principle was implied in the 1935 Constitution even in the absence of a similar provision.[393] Then came the 1987 Constitution. The 1973 Constitutional provision on tax exemption of church property was retained with minor modification in Article VI, Section 28(3) of the 1987 Constitution. The same is true with respect to the prohibition on the use of public money and property for religious purposes and the salaries of religious officers serving in the enumerated government institutions, now contained in Article VI, Section 29(2). Commissioner Bacani, however, probed into the possibility of allowing the government to spend public money for purposes which might have religious connections but which would benefit the public generally. Citing the Aglipay case, Commissioner Rodrigo explained that if a public expenditure would benefit the government directly, such expense would be constitutional even if it results

to an incidental benefit to religion. With that explanation, Commissioner Bacani no longer pursued his proposal.[394] The provision on optional religious instruction was also adopted in the 1987 Constitution in Article XIV, Section 3(3) with the modification that it was expressly provided that optional instruction shall be conducted within the regular class hours and without additional cost to the government. There were protracted debates on what additional cost meant, i.e., cost over and above what is needed for normal operations such as wear and tear, electricity, janitorial services, [395]and when during the day instruction would be conducted.[396] In deliberating on the phrase within the regular class hours, Commissioner Aquino expressed her reservations to this proposal as this would violate the time-honored principle of separation of church and state. She cited the McCullom case where religious instruction during regular school hours was stricken down as unconstitutional and also cited what she considered the most liberal interpretation of separation of church and state in Surach v. Clauson where the U.S. Supreme Court allowed only release time for religious instruction. Fr. Bernas replied, viz: . . . the whole purpose of the provision was to provide for an exception to the rule on nonestablishment of religion, because if it were not necessary to make this exception for purposes of allowing religious instruction, then we could just drop the amendment. But, as a matter of fact, this is necessary because we are trying to introduce something here which is contrary to American practices.[397] (emphasis supplied) (W)ithin regular class hours was approved. The provision on the separation of church and state was retained but placed under the Principles in the Declaration of Principles and State Policies in Article II, Section 6. In opting to retain the wording of the provision, Fr. Bernas stated,viz: . . . It is true, I maintain, that as a legal statement the sentence The separation of Church and State is inviolable, is almost a useless statement; but at the same time it is a harmless statement. Hence, I am willing to tolerate it there, because, in the end, if we look at the jurisprudence on Church and State, arguments are based not on the statement of separation of church and state but on the nonestablishment clause in the Bill of Rights.[398] The preamble changed Divine Providence in the 1935 and 1973 Constitutions to Almighty God. There was considerable debate on whether to use Almighty God which Commissioner Bacani said was more reflective of Filipino religiosity, but Commissioner Rodrigo recalled that a number of atheistic delegates in the 1971 Constitutional Convention objected to reference to a personal God. [399] God of History, Lord of History and God were also proposed, but the phrase Almighty God prevailed. Similar to the 1935 and 1971 Constitutions, it is obvious that the 1987 Constitution is not hostile nor indifferent to religion;[400] its wall of separation is not a wall of hostility or indifference. [401] The provisions of the 1935, 1973 and 1987 constitutions on tax exemption of church property, salary of religious officers in government institutions, optional religious instruction and the preamble all reveal without doubt that the Filipino people, in adopting these constitutions, did not intend to erect a high and impregnable wall of separation between the church and state. [402] The strict neutrality approach which examines only whether government action is for a secular purpose and does not consider inadvertent burden on religious exercise protects such a rigid barrier. By adopting the above constitutional provisions on religion, the Filipinos manifested their adherence to the benevolent neutralityapproach in interpreting the religion clauses, an approach that looks further than the secular purposes of government action and examines the effect of these actions on religious exercise. Benevolent neutrality recognizes the religious nature of the Filipino people and the elevating influence of religion in society; at the same time, it acknowledges that government must pursue its secular goals. In pursuing these goals, however, government might adopt laws or actions of general applicability which inadvertently burden religious exercise. Benevolent neutrality gives room for accommodation of these religious exercises as required by the Free Exercise Clause. It allows these breaches in the wall of separation to uphold religious liberty, which after all is the integral purpose of the religion clauses. The case at bar involves

this first type of accommodation where an exemption is sought from a law of general applicability that inadvertently burdens religious exercise. Although our constitutional history and interpretation mandate benevolent neutrality, benevolent neutrality does not mean that the Court ought to grant exemptions every time a free exercise claim comes before it. But it does mean that the Court will not look with hostility or act indifferently towards religious beliefs and practices and that it will strive to accommodate them when it can within flexible constitutional limits; it does mean that the Court will not simply dismiss a claim under the Free Exercise Clause because the conduct in question offends a law or the orthodox view for this precisely is the protection afforded by the religion clauses of the Constitution, i.e., that in the absence of legislation granting exemption from a law of general applicability, the Court can carve out an exception when the religion clauses justify it. While the Court cannot adopt a doctrinal formulation that can eliminate the difficult questions of judgment in determining the degree of burden on religious practice or importance of the state interest or the sufficiency of the means adopted by the state to pursue its interest, the Court can set a doctrine on the ideal towards which religious clause jurisprudence should be directed. [403] We here lay down the doctrine that in Philippine jurisdiction, we adopt the benevolent neutrality approach not only because of its merits as discussed above, but more importantly, because our constitutional history and interpretation indubitably show that benevolent neutrality is the launching pad from which the Court should take off in interpreting religion clause cases. The ideal towards which this approach is directed is the protection of religious liberty not only for a minority, however smallnot only for a majority, however large- but for each of us to the greatest extent possible within flexible constitutional limits. Benevolent neutrality is manifest not only in the Constitution but has also been recognized in Philippine jurisprudence, albeit not expressly called benevolent neutrality or accommodation. In Aglipay, the Court not only stressed the elevating influence of religion in human society but acknowledged the Constitutional provisions on exemption from tax of church property, salary of religious officers in government institutions, and optional religious instruction as well as the provisions of the Administrative Code making Thursday and Friday of the Holy Week, Christmas Day and Sundays legal holidays. In Garces, the Court not only recognized the Constitutional provisions indiscriminately granting concessions to religious sects and denominations, but also acknowledged that government participation in long-standing traditions which have acquired a social character - the barrio fiesta is a socio-religious affair - does not offend the Establishment Clause. In Victoriano, the Court upheld the exemption from closed shop provisions of members of religious sects who prohibited their members from joining unions upon the justification that the exemption was not a violation of the Establishment Clause but was only meant to relieve the burden on free exercise of religion. In Ebralinag, members of the Jehovahs Witnesses were exempt from saluting the flag as required by law, on the basis not of a statute granting exemption but of the Free Exercise Clause without offending the Establishment Clause. While the U.S. and Philippine religion clauses are similar in form and origin, Philippine constitutional law has departed from the U.S. jurisprudence of employing a separationist or strict neutrality approach. The Philippine religion clauses have taken a life of their own, breathing the air of benevolent neutrality and accommodation. Thus, the wall of separation in Philippine jurisdiction is not as high and impregnable as the wall created by the U.S. Supreme Court in Everson.[404] While the religion clauses are a unique American experiment which understandably came about as a result of Americas English background and colonization, the life that these clauses have taken in this jurisdiction is the Philippines own experiment, reflective of the Filipinos own national soul, history and tradition. After all, the life of the law. . . has been experience. But while history, constitutional construction, and earlier jurisprudence unmistakably show that benevolent neutrality is the lens with which the Court ought to view religion clause cases, it must be stressed that the interest of the state should also be afforded utmost protection. To do this, a test must be applied to draw the line between permissible and forbidden religious exercise. It is quite paradoxical that in order for the members of a society to exercise their freedoms, including their religious liberty, the law must set a limit when their exercise offends the higher interest of the state. To do otherwise is self-defeating for unlimited freedom would erode order in the state and foment anarchy,

eventually destroying the very state its members established to protect their freedoms. The very purpose of the social contract by which people establish the state is for the state to protect their liberties; for this purpose, they give up a portion of these freedoms - including the natural right to free exercise - to the state. It was certainly not the intention of the authors of the constitution that free exercise could be used to countenance actions that would undo the constitutional order that guarantees free exercise. [405] The all important question then is the test that should be used in ascertaining the limits of the exercise of religious freedom. Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first case on the Free Exercise Clause, American Bible Society, the Court mentioned the clear and present danger test but did not employ it. Nevertheless, this test continued to be cited in subsequent cases on religious liberty. The Gerona case then pronounced that the test of permissibility of religious freedom is whether it violates the established institutions of society and law. The Victoriano case mentioned the immediate and grave danger test as well as the doctrine that a law of general applicability may burden religious exercise provided the law is the least restrictive means to accomplish the goal of the law. The case also used, albeit inappropriately, the compelling state interest test. After Victoriano, Germanwent back to the Gerona rule. Ebralinag then employed the grave and immediate danger test and overruled the Gerona test. The fairly recent case of Iglesia ni Cristo went back to the clear and present danger test in the maiden case of American Bible Society. Not surprisingly, all the cases which employed the clear and present danger or grave and immediate danger test involved, in one form or another, religious speech as this test is often used in cases on freedom of expression. On the other hand, the Gerona and German cases set the rule that religious freedom will not prevail over established institutions of society and law. Gerona, however, which was the authority cited by German has been overruled by Ebralinag which employed the grave and immediate danger test. Victoriano was the only case that employed the compelling state interest test, but as explained previously, the use of the test was inappropriate to the facts of the case. The case at bar does not involve speech as in American Bible Society, Ebralinag and Iglesia ni Cristo where the clear and present danger and grave and immediate danger tests were appropriate as speech has easily discernible or immediate effects. The Gerona and German doctrine, aside from having been overruled, is not congruent with the benevolent neutrality approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the present case involves purely conduct arising from religious belief. The compelling state interest test is proper where conduct is involved for the whole gamut of human conduct has different effects on the states interests: some effects may be immediate and short-term while others delayed and far-reaching. A test that would protect the interests of the state in preventing a substantive evil, whether immediate or delayed, is therefore necessary. However, not any interest of the state would suffice to prevail over the right to religious freedom as this is a fundamental right that enjoys a preferred position in the hierarchy of rights - the most inalienable and sacred of all human rights, in the words of Jefferson. [406] This right is sacred for an invocation of the Free Exercise Clause is an appeal to a higher sovereignty. The entire constitutional order of limited government is premised upon an acknowledgment of such higher sovereignty, [407] thus the Filipinos implore the aid of Almighty God in order to build a just and humane society and establish a government. As held in Sherbert, only the gravest abuses, endangering paramount interests can limit this fundamental right. A mere balancing of interests which balances a right with just a colorable state interest is therefore not appropriate. Instead, only a compelling interest of the state can prevail over the fundamental right to religious liberty. The test requires the state to carry a heavy burden, a compelling one, for to do otherwise would allow the state to batter religion, especially the less powerful ones until they are destroyed.[408] In determining which shall prevail between the states interest and religious liberty, reasonableness shall be the guide. [409] The compelling state interest serves the purpose of revering religious liberty while at the same time affording protection to the paramount interests of the state. This was the test used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the end, the compelling state interest test, by upholding the paramount interests of the state, seeks to protect the very state, without which, religious liberty will not be preserved.

X. Application of the Religion Clauses to the Case at Bar

A. The Religion Clauses and Morality In a catena of cases, the Court has ruled that government employees engaged in illicit relations are guilty of disgraceful and immoral conduct for which he/she may be held administratively liable. [410] In these cases, there was not one dissent to the majoritys ruling that their conduct was immoral. The respondents themselves did not foist the defense that their conduct was not immoral, but instead sought to prove that they did not commit the alleged act or have abated from committing the act. The facts of the 1975 case of De Dios v. Alejo[411] and the 1999 case of Maguad v. De Guzman,[412] are similar to the case at bar - i.e., the complainant is a mere stranger and the legal wife has not registered any objection to the illicit relation, there is no proof of scandal or offense to the moral sensibilities of the community in which the respondent and the partner live and work, and the government employee is capacitated to marry while the partner is not capacitated but has long been separated in fact. Still, the Court found the government employees administratively liable for disgraceful and immoral conduct and only considered the foregoing circumstances to mitigate the penalty. Respondent Escritor does not claim that there is error in the settled jurisprudence that an illicit relation constitutes disgraceful and immoral conduct for which a government employee is held liable. Nor is there an allegation that the norms of morality with respect to illicit relations have shifted towards leniency from the time these precedent cases were decided. The Court finds that there is no such error or shift, thus we find no reason to deviate from these rulings that such illicit relationship constitutes disgraceful and immoral conduct punishable under the Civil Service Law. Respondent having admitted the alleged immoral conduct, she, like the respondents in the abovecited cases, could be held administratively liable. However, there is a distinguishing factor that sets the case at bar apart from the cited precedents, i.e., as a defense, respondent invokes religious freedom since her religion, the Jehovahs Witnesses, has, after thorough investigation, allowed her conjugal arrangement with Quilapio based on the churchs religious beliefs and practices. This distinguishing factor compels the Court to apply the religious clauses to the case at bar. Without holding that religious freedom is not in issue in the case at bar, both the dissenting opinion of Mme. Justice Ynares-Santiago and the separate opinion of Mr. Justice Vitug dwell more on the standards of morality than on the religion clauses in deciding the instant case. A discussion on morality is in order. At base, morality refers to, in Socrates words, how we ought to live and why. Any definition of morality beyond Socrates simple formulation is bound to offend one or another of the many rival theories regarding what it means to live morally. [413] The answer to the question of how we ought to live necessarily considers that man does not live in isolation, but in society. Devlin posits that a society is held together by a community of ideas, made up not only of political ideas but also of ideas about the manner its members should behave and govern their lives. The latter are their morals; they constitute the public morality. Each member of society has ideas about what is good and what is evil. If people try to create a society wherein there is no fundamental agreement about good and evil, they will fail; if having established the society on common agreement, the agreement collapses, the society will disintegrate. Society is kept together by the invisible bonds of common thought so that if the bonds are too loose, the members would drift apart. A common morality is part of the bondage and the bondage is part of the price of society; and mankind, which needs society, must pay its price. [414] This design is parallel with the social contract in the realm of politics: people give up a portion of their liberties to the state to allow the state to protect their liberties. In a constitutional order, people make a fundamental agreement about the powers of government and their liberties and embody this agreement in a constitution, hence referred to as the fundamental law of the land. A complete break of this fundamental agreement such as by revolution destroys the old order and creates a new one. [415] Similarly, in the realm of morality, the breakdown of the fundamental agreement about the manner a societys members should behave and govern their lives would disintegrate society. Thus, society is justified in taking steps to preserve its moral code by law as it does to preserve its government and other essential institutions. [416] From these propositions of Devlin, one cannot conclude that Devlin negates diversity in society for he is merely saying that in the midst of this diversity, there should nevertheless be a fundamental agreement about good and evil that will govern how people in a society ought to live. His propositions, in fact, presuppose diversity hence the need to come to an agreement; his position also allows for change of morality from time to time which may be brought about by this diversity. In the same vein, a pluralistic society lays down fundamental rights and principles in their constitution in establishing and maintaining

their society, and these fundamental values and principles are translated into legislation that governs the order of society, laws that may be amended from time to time. Harts argument propounded in Mr. Justice Vitugs separate opinion that, Devlins view of people living in a single society as having common moral foundation (is) overly simplistic because societies have always been diverse fails to recognize the necessity of Devlins proposition in a democracy. Without fundamental agreement on political and moral ideas, society will fall into anarchy; the agreement is necessary to the existence and progress of society. In a democracy, this common agreement on political and moral ideas is distilled in the public square. Where citizens are free, every opinion, every prejudice, every aspiration, and every moral discernment has access to the public square where people deliberate the order of their life together. Citizens are the bearers of opinion, including opinion shaped by, or espousing religious belief, and these citizens have equal access to the public square. In this representative democracy, the state is prohibited from determining which convictions and moral judgments may be proposed for public deliberation. Through a constitutionally designed process, the people deliberate and decide. Majority rule is a necessary principle in this democratic governance. [417] Thus, when public deliberation on moral judgments is finally crystallized into law, the laws will largely reflect the beliefs and preferences of the majority, i.e., the mainstream or median groups. [418] Nevertheless, in the very act of adopting and accepting a constitution and the limits it specifies -- including protection of religious freedom not only for a minority, however small- not only for a majority, however large- but for each of us -- the majority imposes upon itself a self-denying ordinance. It promises not to do what it otherwise could do: to ride roughshod over the dissenting minorities.[419] In the realm of religious exercise, benevolent neutrality that gives room for accommodation carries out this promise, provided the compelling interests of the state are not eroded for the preservation of the state is necessary to the preservation of religious liberty. That is why benevolent neutrality is necessary in a pluralistic society such as the United States and the Philippines to accommodate those minority religions which are politically powerless. It is not surprising that Smith is much criticized for it blocks the judicial recourse of the minority for religious accommodations. The laws enacted become expressions of public morality. As Justice Holmes put it, (t)he law is the witness and deposit of our moral life.[420] In a liberal democracy, the law reflects social morality over a period of time.[421] Occasionally though, a disproportionate political influence might cause a law to be enacted at odds with public morality or legislature might fail to repeal laws embodying outdated traditional moral views.[422] Law has also been defined as something men create in their best moments to protect themselves in their worst moments.[423] Even then, laws are subject to amendment or repeal just as judicial pronouncements are subject to modification and reversal to better reflect the public morals of a society at a given time. After all, the life of the law...has been experience, in the words of Justice Holmes. This is not to say though that law is all of morality. Law deals with the minimum standards of human conduct while morality is concerned with the maximum. A person who regulates his conduct with the sole object of avoiding punishment under the law does not meet the higher moral standards set by society for him to be called a morally upright person. [424] Law also serves as a helpful starting point for thinking about a proper or ideal public morality for a society [425] in pursuit of moral progress. In Magno v. Court of Appeals, et al., [426] we articulated the relationship between law and public morality. We held that under the utilitarian theory, the protective theory in criminal law, criminal law is founded upon the moral disapprobation x x x of actions which are immoral, i.e., which are detrimental (or dangerous) to those conditions upon which depend the existence and progress of human society. This disapprobation is inevitable to the extent that morality is generally founded and built upon a certain concurrence in the moral opinions of all . x x x That which we call punishment is only an external means of emphasizing moral disapprobation: the method of punishment is in reality the amount of punishment. [427] Stated otherwise, there are certain standards of behavior or moral principles which society requires to be observed and these form the bases of criminal law. Their breach is an offense not only against the person injured but against society as a whole. [428] Thus, even if all involved in the misdeed are consenting parties, such as in the case at bar, the injury done is to the public morals and the public interest in the moral order. [429] Mr. Justice Vitug expresses concern on this point in his separate opinion. He observes that certain immoral acts which appear private and not harmful to society such as sexual congress between a man and a prostitute, though consensual and private, and with no injured third party, remains illegal in this country. His opinion asks whether these laws on private

morality are justified or they constitute impingement on ones freedom of belief. Discussion on private morality, however, is not material to the case at bar for whether respondents conduct, which constitutes concubinage,[430] is private in the sense that there is no injured party or the offended spouse consents to the concubinage, the inescapable fact is that the legislature has taken concubinage out of the sphere of private morals. The legislature included concubinage as a crime under the Revised Penal Code and the constitutionality of this law is not being raised in the case at bar. In the definition of the crime of concubinage, consent of the injured party, i.e., the legal spouse, does not alter or negate the crime unlike in rape[431] where consent of the supposed victim negates the crime. If at all, the consent or pardon of the offended spouse in concubinage negates the prosecution of the action, [432] but does not alter the legislatures characterization of the act as a moral disapprobation punishable by law. The separate opinion states that, (t)heponencia has taken pains to distinguish between secular and private morality, and reached the conclusion that the law, as an instrument of the secular State should only concern itself with secular morality. The Court does not draw this distinction in the case at bar. The distinction relevant to the case is not, as averred and discussed by the separate opinion, between secular and private morality, but between public and secular morality on the one hand, and religious morality on the other, which will be subsequently discussed. Not every moral wrong is foreseen and punished by law, criminal or otherwise. We recognized this reality in Velayo, et al. v. Shell Co. of the Philippine Islands, et al., where we explained that for those wrongs which are not punishable by law, Articles 19 and 21 in Chapter 2 of the Preliminary Title of the New Civil Code, dealing with Human Relations, provide for the recognition of the wrong and the concomitant punishment in the form of damages. Articles 19 and 21 provide, viz: Art. 19. Any person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due and observe honesty and good faith. xxx xxx xxx

Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. ( emphasis supplied) We then cited in Velayo the Code Commissions comment on Article 21: Thus at one stroke, the legislator, if the foregoing rule is approved (as it was approved), would vouchsafe adequate legal remedy for that untold numbers of moral wrongs which is impossible for human foresight to provide for specifically in the statutes. But, it may be asked, would this proposed article obliterate the boundary line between morality and law? The answer is that, in the last analysis, every good law draws its breath of life from morals, from those principles which are written with words of fire in the conscience of man. If this premise is admitted, then the proposed rule is a prudent earnest of justice in the face of the impossibility of enumerating, one by one, all wrongs which cause damages. When it is reflected that while codes of law and statutes have changed from age to age, the conscience of man has remained fixed to its ancient moorings, one can not but feel that it is safe and salutary to transmute, as far as may be, moral norms into legal rules, thus imparting to every legal system that enduring quality which ought to be one of its superlative attributes. Furthermore, there is no belief of more baneful consequence upon the social order than that a person may with impunity cause damage to his fellow-men so long as he does not break any law of the State, though he may be defying the most sacred postulates of morality. What is more, the victim loses faith in the ability of the government to afford him protection or relief.

A provision similar to the one under consideration is embodied in article 826 of the German Civil Code. [433] (emphases supplied) The public morality expressed in the law is necessarily secular for in our constitutional order, the religion clauses prohibit the state from establishing a religion, including the morality it sanctions. Religious morality proceeds from a persons views of his relations to His Creator and to the obligations they impose of reverence to His being and character and obedience to His Will, in accordance with this Courts definition of religion in American Bible Society citingDavis. Religion also dictates how we ought to live for the nature of religion is not just to know, but often, to act in accordance with mans views of his relations to His Creator. [434] But the Establishment Clause puts a negative bar against establishment of this morality arising from one religion or the other, and implies the affirmative establishment of a civil order for the resolution of public moral disputes. This agreement on a secular mechanism is the price of ending the war of all sects against all; the establishment of a secular public moral order is the social contract produced by religious truce. [435] Thus, when the law speaks of immorality in the Civil Service Law or immoral in the Code of Professional Responsibility for lawyers[436], or public morals in the Revised Penal Code, [437] or morals in the New Civil Code,[438] or moral character in the Constitution, [439] the distinction between public and secular morality on the one hand, and religious morality, on the other, should be kept in mind. [440] The morality referred to in the law is public and necessarily secular, not religious as the dissent of Mr. Justice Carpio holds. Religious teachings as expressed in public debate may influence the civil public order but public moral disputes may be resolved only on grounds articulable in secular terms. [441]Otherwise, if government relies upon religious beliefs in formulating public policies and morals, the resulting policies and morals would require conformity to what some might regard as religious programs or agenda. The non-believers would therefore be compelled to conform to a standard of conduct buttressed by a religious belief, i.e., to a compelled religion, anathema to religious freedom. Likewise, if government based its actions upon religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly disapprove contrary religious or non-religious views that would not support the policy. As a result, government will not provide full religious freedom for all its citizens, or even make it appear that those whose beliefs are disapproved are second-class citizens. Expansive religious freedom therefore requires that government be neutral in matters of religion; governmental reliance upon religious justification is inconsistent with this policy of neutrality.[442] In other words, government action, including its proscription of immorality as expressed in criminal law like concubinage, must have a secular purpose. That is, the government proscribes this conduct because it is detrimental (or dangerous) to those conditions upon which depend the existence and progress of human society and not because the conduct is proscribed by the beliefs of one religion or the other. Although admittedly, moral judgments based on religion might have a compelling influence on those engaged in public deliberations over what actions would be considered a moral disapprobation punishable by law. After all, they might also be adherents of a religion and thus have religious opinions and moral codes with a compelling influence on them; the human mind endeavors to regulate the temporal and spiritual institutions of society in a uniform manner, harmonizing earth with heaven. [443] Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian in its deepest roots, but it must have an articulable and discernible secular purpose and justification to pass scrutiny of the religion clauses. Otherwise, if a law has an apparent secular purpose but upon closer examination shows a discriminatory and prohibitory religious purpose, the law will be struck down for being offensive of the religion clauses as in Church of the Lukumi Babalu Aye, Inc. where the U.S. Supreme Court invalidated an ordinance prohibiting animal sacrifice of the Santeria. Recognizing the religious nature of the Filipinos and the elevating influence of religion in society, however, the Philippine constitutions religion clauses prescribe not a strict but a benevolent neutrality. Benevolent neutrality recognizes that government must pursue its secular goals and interests but at the same time strives to uphold religious liberty to the greatest extent possible within flexible constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state interests. Mr. Justice Vitugs separate opinion embraces the benevolent neutrality approach when it states that in deciding the case at bar, the approach should consider that, (a)s a rule . . . moral laws are

justified only to the extent that they directly or indirectly serve to protect the interests of the larger society. It is only where their rigid application would serve to obliterate the value which society seeks to uphold, or defeat the purpose for which they are enacted would, a departure be justified. In religion clause parlance, the separate opinion holds that laws of general applicability governing morals should have a secular purpose of directly or indirectly protecting the interests of the state. If the strict application of these laws (which are the Civil Service Law and the laws on marriage) would erode the secular purposes of the law (which the separate opinion identifies as upholding the sanctity of marriage and the family), then in abenevolent neutrality framework, an accommodation of the unconventional religious belief and practice (which the separate opinion holds should be respected on the ground of freedom of belief) that would promote the very same secular purpose of upholding the sanctity of marriage and family through the Declaration Pledging Faithfulness that makes the union binding and honorable before God and men, is required by the Free Exercise Clause. The separate opinion then makes a preliminary discussion of the values society seeks to protect in adhering to monogamous marriage, but concludes that these values and the purposes of the applicable laws should be thoroughly examined and evidence in relation thereto presented in the OCA. The accommodation approach in the case at bar would also require a similar discussion of these values and presentation of evidence before the OCA by the state that seeks to protect its interest on marriage and opposes the accommodation of the unconventional religious belief and practice regarding marriage. The distinction between public and secular morality as expressed - albeit not exclusively - in the law, on the one hand, and religious morality, on the other, is important because the jurisdiction of the Court extends only to public and secular morality. Whatever pronouncement the Court makes in the case at bar should be understood only in this realm where it has authority. More concretely, should the Court declare respondents conduct as immoral and hold her administratively liable, the Court will be holding that in the realm of public morality, her conduct is reprehensible or there are state interests overriding her religious freedom. For as long as her conduct is being judged within this realm, she will be accountable to the state. But in so ruling, the Court does not and cannot say that her conduct should be made reprehensible in the realm of her church where it is presently sanctioned and that she is answerable for her immorality to her Jehovah God nor that other religions prohibiting her conduct are correct. On the other hand, should the Court declare her conduct permissible, the Court will be holding that under her unique circumstances, public morality is not offended or that upholding her religious freedom is an interest higher than upholding public morality thus her conduct should not be penalized. But the Court is not ruling that the tenets and practice of her religion are correct nor that other churches which do not allow respondents conjugal arrangement should likewise allow such conjugal arrangement or should not find anything immoral about it and therefore members of these churches are not answerable for immorality to their Supreme Being. The Court cannot speak more than what it has authority to say. In Ballard, the U.S. Supreme Court held that courts cannot inquire about the truth of religious beliefs. Similarly, in Fonacier, this Court declared that matters dealing with faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a churchare unquestionably ecclesiastical matters which are outside the province of the civil courts. [444] But while the state, including the Court, accords such deference to religious belief and exercise which enjoy protection under the religious clauses, the social contract and the constitutional order are designed in such a way that when religious belief flows into speech and conduct that step out of the religious sphere and overlap with the secular and public realm, the state has the power to regulate, prohibit and penalize these expressions and embodiments of belief insofar as they affect the interests of the state. The states inroad on religion exercise in excess of this constitutional design is prohibited by the religion clauses; the Old World, European and American history narrated above bears out the wisdom of this proscription. Having distinguished between public and secular morality and religious morality, the more difficult task is determining which immoral acts under this public and secular morality fall under the phrase disgraceful and immoral conduct for which a government employee may be held administratively liable. The line is not easy to draw for it is like a line that divides land and sea, a coastline of irregularities and indentations.[445] But the case at bar does not require us to comprehensively delineate between those immoral acts for which one may be held administratively liable and those to which administrative liability does not attach. We need not concern ourselves in this case therefore whether laziness, gluttony, vanity, selfishness, avarice and cowardice are immoral acts which constitute grounds for administrative liability. Nor need we expend too much energy grappling with the propositions that not

all immoral acts are illegal or not all illegal acts are immoral, or different jurisdictions have different standards of morality as discussed by the dissents and separate opinions, although these observations and propositions are true and correct. It is certainly a fallacious argument that because there are exceptions to the general rule that the law is the witness and deposit of our moral life, then the rule is not true; in fact, that there are exceptions only affirms the truth of the rule. Likewise, the observation that morality is relative in different jurisdictions only affirms the truth that there is morality in a particular jurisdiction; without, however, discounting the truth that underneath the moral relativism are certain moral absolutes such as respect for life and truth-telling, without which no society will survive. Only one conduct is in question before this Court, i.e., the conjugal arrangement of a government employee whose partner is legally married to another which Philippine law and jurisprudence consider both immoral and illegal. Lest the Court inappropriately engage in the impossible task of prescribing comprehensively how one ought to live, the Court must focus its attention upon the sole conduct in question before us. In interpreting disgraceful and immoral conduct, the dissenting opinion of Mme. Justice YnaresSantiago groped for standards of morality and stated that the ascertainment of what is moral or immoral calls for the discovery of contemporary community standards but did not articulate how these standards are to be ascertained. Instead, it held that, (f)or those in the service of the Government, provisions of law and court precedents . . . have to be considered. It identified the Civil Service Law and the laws on adultery and concubinage as laws which respondents conduct has offended and cited a string of precedents where a government employee was found guilty of committing a disgraceful and immoral conduct for maintaining illicit relations and was thereby penalized. As stated above, there is no dispute that under settled jurisprudence, respondents conduct constitutes disgraceful and immoral conduct. However, the cases cited by the dissent do not involve the defense of religious freedom which respondent in the case at bar invokes. Those cited cases cannot therefore serve as precedents in settling the issue in the case at bar. Mme. Justice Ynares-Santiagos dissent also cites Cleveland v. United States[446] in laying down the standard of morality, viz: (w)hether an act is immoral within the meaning of the statute is not to be determined by respondents concept of morality. The law provides the standard; the offense is complete if respondent intended to perform, and did in fact perform, the act which it condemns. The Mann Act under consideration in the Cleveland case declares as an offense the transportation in interstate commerce of any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose.[447] The resolution of that case hinged on the interpretation of the phrase immoral purpose. The U.S. Supreme Court held that the petitioner Mormons act of transporting at least one plural wife whether for the purpose of cohabiting with her, or for the purpose of aiding another member of their Mormon church in such a project, was covered by the phrase immoral purpose. In so ruling, the Court relied on Reynolds which held that the Mormons practice of polygamy, in spite of their defense of religious freedom, was odious among the northern and western nations of Europe, [448] a return to barbarism,[449] contrary to the spirit of Christianity and of the civilization which Christianity has produced in the Western world,[450] and thus punishable by law. The Cleveland standard, however, does not throw light to the issue in the case at bar. The pronouncements of the U.S. Supreme Court that polygamy is intrinsically odious or barbaric do not apply in the Philippines where Muslims, by law, are allowed to practice polygamy. Unlike in Cleveland, there is no jurisprudence in Philippine jurisdiction holding that the defense of religious freedom of a member of the Jehovahs Witnesses under the same circumstances as respondent will not prevail over the laws on adultery, concubinage or some other law. We cannot summarily conclude therefore that her conduct is likewise so odious and barbaric as to be immoral and punishable by law. While positing the view that the resolution of the case at bar lies more on determining the applicable moral standards and less on religious freedom, Mme. Justice Ynares-Santiagos dissent nevertheless discussed respondents plea of religious freedom and disposed of this defense by stating that (a) clear and present danger of a substantive evil, destructive to public morals, is a ground for the reasonable regulation of the free exercise and enjoyment of religious profession. (American Bible Society v. City of Manila, 101 Phil. 386 [1957]). In addition to the destruction of public morals, the substantive evil in this case is the tearing down of morality, good order, and discipline in the judiciary. However, the foregoing discussion has shown that the clear and present danger test that is usually employed in cases involving

freedom of expression is not appropriate to the case at bar which involves purely religious conduct. The dissent also citesReynolds in supporting its conclusion that respondent is guilty of disgraceful and immoral conduct. The Reynolds ruling, however, was reached with a strict neutrality approach, which is not the approach contemplated by the Philippine constitution. As discussed above, Philippine jurisdiction adopts benevolent neutrality in interpreting the religion clauses. In the same vein, Mr. Justice Carpios dissent which employs strict neutrality does not reflect the constitutional intent of employing benevolent neutrality in interpreting the Philippine religion clauses. His dissent avers that respondent should be held administratively liable not for disgraceful and immoral conduct but conduct prejudicial to the best interest of the service as she is a necessary coaccused of her partner in concubinage. The dissent stresses that being a court employee, her open violation of the law is prejudicial to the administration of justice. Firstly, the dissent offends due process as respondent was not given an opportunity to defend herself against the charge of conduct prejudicial to the best interest of the service. In addition, there is no evidence of the alleged prejudice to the best interest of the service. Most importantly, the dissent concludes that respondents plea of religious freedom cannot prevail without so much as employing a test that would balance respondents religious freedom and the states interest at stake in the case at bar. The foregoing discussion on the doctrine of religious freedom, however, shows that with benevolent neutrality as a framework, the Court cannot simply reject respondents plea of religious freedom without even subjecting it to the compelling state interest test that would balance her freedom with the paramount interests of the state. The strict neutrality employed in the cases the dissent cites - Reynolds, Smith and People v. Bitdu decided before the 1935 Constitution which unmistakably shows adherence to benevolent neutrality - is not contemplated by our constitution. Neither is Sulu Islamic Association of Masjid Lambayong v. Judge Nabdar J. Malik [451] cited in Mr. Justice Carpios dissent decisive of the immorality issue in the case at bar. In that case, the Court dismissed the charge of immorality against a Tausug judge for engaging in an adulterous relationship with another woman with whom he had three children because it (was) not immoral by Muslim standards for Judge Malik to marry a second time while his first marriage (existed). Putting the quoted portion in its proper context would readily show that the Sulu Islamic case does not provide a precedent to the case at bar. Immediately prior to the portion quoted by the dissent, the Court stressed, viz: (s)ince Art. 180 of P.D. No. 1083, otherwise known as the Code of Muslim Personal Laws of the Philippines, provides that the penal laws relative to the crime of bigamy shall not apply to a person married x x x under Muslim Law, it is not immoral by Muslim standards for Judge Malik to marry a second time while his first marriage exists.[452] It was by law, therefore, that the Muslim conduct in question was classified as an exception to the crime of bigamy and thus an exception to the general standards of morality. The constitutionality of P.D. No. 1083 when measured against the Establishment Clause was not raised as an issue in the Sulu Islamic case. Thus, the Court did not determine whether P.D. No. 1083 suffered from a constitutional infirmity and instead relied on the provision excepting the challenged Muslim conduct from the crime of bigamy in holding that the challenged act is not immoral by Muslim standards. In contradistinction, in the case at bar, there is no similar law which the Court can apply as basis for treating respondents conduct as an exception to the prevailing jurisprudence on illicit relations of civil servants. Instead, the Free Exercise Clause is being invoked to justify exemption.

B. Application of Benevolent Neutrality and the Compelling State Interest Test to the Case at Bar The case at bar being one of first impression, we now subject the respondents claim of religious freedom to the compelling state interest test from a benevolent neutrality stance - i.e. entertaining the possibility that respondents claim to religious freedom would warrant carving out an exception from the Civil Service Law; necessarily, her defense of religious freedom will be unavailing should the government succeed in demonstrating a more compelling state interest. In applying the test, the first inquiry is whether respondents right to religious freedom has been burdened. There is no doubt that choosing between keeping her employment and abandoning her

religious belief and practice and family on the one hand, and giving up her employment and keeping her religious practice and family on the other hand, puts a burden on her free exercise of religion. In Sherbert, the Court found that Sherberts religious exercise was burdened as the denial of unemployment benefits forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. The burden on respondent in the case at bar is even greater as the price she has to pay for her employment is not only her religious precept but also her family which, by the Declaration Pledging Faithfulness, stands honorable before God and men. The second step is to ascertain respondents sincerity in her religious belief. Respondent appears to be sincere in her religious belief and practice and is not merely using the Declaration of Pledging Faithfulness to avoid punishment for immorality. She did not secure the Declaration only after entering the judiciary where the moral standards are strict and defined, much less only after an administrative case for immorality was filed against her. The Declaration was issued to her by her congregation after ten years of living together with her partner, Quilapio, and ten years before she entered the judiciary. Ministers from her congregation testified on the authenticity of the Jehovahs Witnesses practice of securing a Declaration and their doctrinal or scriptural basis for such a practice. As the ministers testified, the Declaration is not whimsically issued to avoid legal punishment for illicit conduct but to make the union of their members under respondents circumstances honorable before God and men. It is also worthy of notice that the Report and Recommendation of the investigating judge annexed letters[453] of the OCA to the respondent regarding her request to be exempt from attending the flag ceremony after Circular No. 62-2001 was issued requiring attendance in the flag ceremony. The OCAs letters were not submitted by respondent as evidence but annexed by the investigating judge in explaining that he was caught in a dilemma whether to find respondent guilty of immorality because the Court Administrator and Deputy Court Administrator had different positions regarding respondents request for exemption from the flag ceremony on the ground of the Jehovahs Witnesses contrary belief and practice. Respondents request for exemption from the flag ceremony shows her sincerity in practicing the Jehovahs Witnesses beliefs and not using them merely to escape punishment. She is a practicing member of the Jehovahs Witnesses and the Jehovah ministers testified that she is a member in good standing. Nevertheless, should the government, thru the Solicitor General, want to further question the respondents sincerity and the centrality of her practice in her faith, it should be given the opportunity to do so. The government has not been represented in the case at bar from its incipience until this point. In any event, even if the Court deems sufficient respondents evidence on the sincerity of her religious belief and its centrality in her faith, the case at bar cannot still be decided using the compelling state interest test. The case at bar is one of first impression, thus the parties were not aware of the burdens of proof they should discharge in the Courts use of the compelling state interest test. We note that the OCA found respondents defense of religious freedom unavailing in the face of the Courts ruling in Dicdican v. Fernan, et al., viz: It bears emphasis that the image of a court of justice is mirrored in the conduct, official and otherwise, of the personnel who work thereat, from the judge to the lowest of its personnel. Court personnel have been enjoined to adhere to the exacting standards of morality and decency in their professional and private conduct in order to preserve the good name and integrity of the courts of justice. It is apparent from the OCAs reliance upon this ruling that the state interest it upholds is the preservation of the integrity of the judiciary by maintaining among its ranks a high standard of morality and decency. However, there is nothing in the OCAs memorandum to the Court that demonstrates how this interest is so compelling that it should override respondents plea of religious freedom nor is it shown that the means employed by the government in pursuing its interest is the least restrictive to respondents religious exercise. Indeed, it is inappropriate for the complainant, a private person, to present evidence on the compelling interest of the state. The burden of evidence should be discharged by the proper agency of the government which is the Office of the Solicitor General. To properly settle the issue in the case at bar, the government should be given the opportunity to demonstrate the compelling state interest it seeks

to uphold in opposing the respondents stance that her conjugal arrangement is not immoral and punishable as it comes within the scope of free exercise protection. Should the Court prohibit and punish her conduct where it is protected by the Free Exercise Clause, the Courts action would be an unconstitutional encroachment of her right to religious freedom. [454] We cannot therefore simply take a passing look at respondents claim of religious freedom, but must instead apply the compelling state interest test. The government must be heard on the issue as it has not been given an opportunity to discharge its burden of demonstrating the states compelling interest which can override respondents religious belief and practice. To repeat, this is a case of first impression where we are applying the compelling state interest test in a case involving purely religious conduct. The careful application of the test is indispensable as how we will decide the case will make a decisive difference in the life of the respondent who stands not only before the Court but before her Jehovah God. IN VIEW WHEREOF, the case is REMANDED to the Office of the Court Administrator. The Solicitor General is ordered to intervene in the case where it will be given the opportunity (a) to examine the sincerity and centrality of respondents claimed religious belief and practice; (b) to present evidence on the states compelling interest to override respondents religious belief and practice; and (c) to show that the means the state adopts in pursuing its interest is the least restrictive to respondents religious freedom. The rehearing should be concluded thirty (30) days from the Office of the Court Administrators receipt of this Decision. SO ORDERED. Davide, Jr., C.J., Austria-Martinez, Corona, Azcuna, and Tinga, JJ., concur. Bellosillo and Vitug, JJ., please see separate opinion. Ynares-Santiago, and Carpio, JJ., see dissenting opinion. Panganiban, Carpio-Morales, and Callejo, Sr., JJ., joins the dissenting opinion of J. Carpio. Quisumbing, and Sandoval-Gutierrez, JJ., on official leave.

SECOND DIVISION DELA ROSA ET. AL. VS HEIRS OF DAMIAN G.R. No. 155733 January 27, 2006 DECISION

CORONA, J.: In this petition for review on certiorari, petitioners seek to reinstate the May 11, 1990 decision of the Regional Trial Court (RTC) of Manila, Branch 55, [4] in SP Case No. 97668, which was reversed and set aside by the Court of Appeals in its decision[5] dated October 24, 2002.

FACTS OF THE CASE

This case concerns the settlement of the intestate estates of Guillermo Rustia and Josefa Delgado.[6] The main issue in this case is relatively simple: who, between petitioners and respondents, are the lawful heirs of the decedents. However, it is attended by several collateral issues that complicate its resolution.

The claimants to the estates of Guillermo Rustia and Josefa Delgado may be divided into two groups: (1) the alleged heirs of Josefa Delgado, consisting of her half- and full-blood siblings, nephews and nieces, and grandnephews and grandnieces, and (2) the alleged heirs of Guillermo Rustia, particularly, his sisters,[7] his nephews and nieces,[8] his illegitimate child,[9] and the de facto adopted child[10] (ampun-ampunan) of the decedents.

THE ALLEGED HEIRS OF JOSEFA DELGADO

The deceased Josefa Delgado was the daughter of Felisa[11] Delgado by one Lucio Campo. Aside from Josefa, five other children were born to the couple, namely,Nazario, Edilberta, Jose, Jacoba, and Gorgonio, all surnamed Delgado. Felisa Delgado was never married to Lucio Campo, hence, Josefa and her full-blood siblings were all natural children of Felisa Delgado.

However, Lucio Campo was not the first and only man in Felisa Delgados life. Before him was Ramon Osorio[12] with whom Felisa had a son, Luis Delgado. But, unlike her relationship with Lucio Campo which was admittedly one without the benefit of marriage, the legal status of Ramon Osorios and Felisa Delgados union is in dispute.

The question of whether Felisa Delgado and Ramon Osorio ever got married is crucial to the claimants because the answer will determine whether their successionalrights fall within the ambit of the rule against reciprocal intestate succession between legitimate and illegitimate relatives. [13] If Ramon Osorio and Felisa Delgado had been validly married, then their only child Luis Delgado was a legitimate half-blood brother of Josefa Delgado and therefore excluded from the latters intestate estate. He and his heirs would be barred by the principle of absolute separation between the legitimate and illegitimate families. Conversely, if the couple were never married, Luis Delgado and his heirs would be entitled to inherit from Josefa Delgados intestate estate, as they would all be within the illegitimate line. Petitioners allege that Ramon Osorio and Felisa Delgado were never married. In support thereof, they assert that no evidence was ever presented to establish it, not even so much as an allegation of the date or place of the alleged marriage. What is clear, however, is that Felisa retained the surname Delgado. So did Luis, her son with Ramon Osorio. Later on, when Luis got married, his Partida de Casamiento[14] stated that he was hijo natural de Felisa Delgado (the natural child of Felisa Delgado),[15]significantly omitting any mention of the name and other circumstances of his father. [16] Nevertheless, oppositors (now respondents) insist that the absence of a record of the alleged marriage did not necessarily mean that no marriage ever took place.

Josefa Delgado died on September 8, 1972 without a will. She was survived by Guillermo Rustia and some collateral relatives, the petitioners herein. Several months later, on June 15, 1973, Guillermo Rustia executed an affidavit of self-

adjudication of the remaining properties comprising her estate.

THE MARRIAGE OF GUILLERMO RUSTIA AND JOSEFA DELGADO

Sometime in 1917, Guillermo Rustia proposed marriage to Josefa Delgado[17] but whether a marriage in fact took place is disputed. According to petitioners, the two eventually lived together as husband and wife but were never married. To prove their assertion, petitioners point out that no record of the contested marriage existed in the civil registry. Moreover, a baptismal certificate naming Josefa Delgado as one of the sponsors referred to her as Seorita or unmarried woman.

The oppositors (respondents here), on the other hand, insist that the absence of a marriage certificate did not of necessity mean that no marriage transpired. They maintain that Guillermo Rustia and Josefa Delgado were married on June 3, 1919 and from then on lived together as husband and wife until the death of Josefa on September 8, 1972. During this period spanning more than half a century, they were known among their relatives and friends to have in fact been married. To support their proposition,oppositors presented the following pieces of evidence:

1.

Certificate of Identity No. 9592 dated [December 1, 1944] issued to Mrs. Guillermo J. Rustia by Carlos P. Romulo, then Resident Commissioner to the United States of the Commonwealth of the Philippines;

2.

Philippine Passport No. 4767 issued to Josefa D. Rustia on June 25, 1947;

3.

Veterans Application for Pension or Compensation for Disability Resulting from Service in the Active Military or Naval Forces of the United States- Claim No. C-4, 004, 503 (VA Form 526) filed with the Veterans Administration of the United States of America by Dr. Guillermo J. Rustia wherein Dr. Guillermo J. Rustia himself [swore] to his marriage to Josefa Delgado in Manila on 3 June 1919;[18]

4.

Titles to real properties in the name of Guillermo Rustia indicated that he was married to Josefa Delgado.

THE ALLEGED HEIRS OF GUILLERMO RUSTIA

Guillermo Rustia and Josefa Delgado never had any children. With no children of their own, they took into their home the youngsters Guillermina Rustia Rustia andNanie Rustia. These children, never legally adopted by the couple, were what was known in the local dialect as ampun-ampunan.

During his life with Josefa, however, Guillermo Rustia did manage to father an illegitimate child, the intervenor-respondent Guillerma Rustia, with one AmparoSagarbarria. According to Guillerma, Guillermo Rustia treated her as his daughter, his own flesh and blood, and she enjoyed open and continuous possession of that status from her birth in 1920 until her fathers demise. In fact, Josefa Delgados obituary which was prepared by Guillermo Rustia, named the intervenorrespondent as one of their children. Also, her report card from the University of Santo Tomas identified Guillermo Rustia as her parent/guardian.[20]
[19]

Oppositors (respondents here) nonetheless posit that Guillerma Rustia has no interest in the intestate estate of Guillermo Rustia as she was never duly acknowledged as an illegitimate child. They contend that her right to compulsory acknowledgement prescribed when Guillermo died in 1974 and that she cannot claim voluntary acknowledgement since the documents she presented were not the authentic writings prescribed by the new Civil Code.[21]

On January 7, 1974, more than a year after the death of Josefa Delgado, Guillermo Rustia filed a petition for the adoption [22] of their ampun-ampunan GuillerminaRustia. He stated under oath [t]hat he ha[d] no legitimate, legitimated, acknowledged natural children or natural children by legal fiction. [23] The petition was overtaken by his death on February 28, 1974.

Like Josefa Delgado, Guillermo Rustia died without a will. He was survived by his sisters Marciana Rustia vda. de Damian and Hortencia Rustia-Cruz, and by the children of his predeceased brother Roman Rustia Sr., namely, Josefina Rustia Albano, Virginia Rustia Paraiso, Roman Rustia, Jr., Sergio Rustia, Francisco Rustia and LeticiaRustia Miranda.[24]

ANTECEDENT PROCEEDINGS

On May 8, 1975, Luisa Delgado vda. de Danao, the daughter of Luis Delgado, filed the original petition for letters of administration of the intestate estates of the spousesJosefa Delgado and Guillermo Rustia with the RTC of Manila, Branch 55.[25] This petition was opposed by the following: (1) the sisters of Guillermo Rustia, namely, MarcianaRustia vda. de Damian and Hortencia Rustia-Cruz;[26] (2) the heirs of Guillermo Rustias late brother, Roman Rustia, Sr., and (3) the ampunampunan Guillermina RustiaRustia. The opposition was grounded on the theory that Luisa Delgado vda. de Danao and the other claimants were barred under the law from inheriting from their illegitimate halfblood relative Josefa Delgado.

In November of 1975, Guillerma Rustia filed a motion to intervene in the proceedings, claiming she was the only surviving descendant in the direct line of GuillermoRustia. Despite the objections of the oppositors (respondents herein), the motion was granted.

On April 3, 1978, the original petition for letters of administration was amended to state that Josefa Delgado and Guillermo Rustia were never married but had merely lived together as husband and wife.

On January 24, 1980, oppositors (respondents herein) filed a motion to dismiss the petition in the RTC insofar as the estate of Guillermo Rustia was concerned. The motion was denied on the ground that the interests of the petitioners and the other claimants remained in issue and should be properly threshed out upon submission of evidence.

On March 14, 1988, Carlota Delgado vda. de de la Rosa substituted for her sister, Luisa Delgado vda. de Danao, who had died on May 18, 1987.

On May 11, 1990, the RTC appointed Carlota Delgado vda. de de la Rosa as administratrix of both estates.[27] The dispositive portion of the decision read:

WHEREFORE, in view of all the foregoing, petitioner and her co-claimants to the estate of the late Josefa Delgado listed in the Petitions, and enumerated elsewhere in this Decision, are hereby declared as the only legal heirs of the said Josefa Delgado who

died intestate in the City of Manila on September 8, 1972, and entitled to partition the same among themselves in accordance with the proportions referred to in this Decision.

Similarly, the intervenor Guillerma S. Rustia is hereby declared as the sole and only surviving heir of the late Dr. Guillermo Rustia, and thus, entitled to the entire estate of the said decedent, to the exclusion of theoppositors and the other parties hereto.

The Affidavit of Self-Adjudication of the estate of Josefa Delgado executed by the late Guillermo J. Rustia on June 15, 1973 is hereby SET ASIDE and declared of no force and effect.

As the estates of both dece[d]ents have not as yet been settled, and their settlement [is] considered consolidated in this proceeding in accordance with law, a single administrator therefor is both proper and necessary, and, as the petitioner Carlota Delgado Vda. de dela Rosa has established her right to the appointment as administratrix of the estates, the Court hereby APPOINTS her as the ADMINISTRATRIX of the intestate estate of the decedent JOSEFA DELGADO in relation to the estate of DR. GUILLERMO J. RUSTIA.

Accordingly, let the corresponding LETTERS OF ADMINISTRATION issue to the petitioner CARLOTA DELGADO VDA. DE DE LA ROSA upon her filing of the requisite bond in the sum of FIVE HUNDRED THOUSAND PESOS (P500,000.00).

Finally, oppositor GUILLERMINA RUSTIA RUSTIA is hereby ordered to cease and desist from her acts of administration of the subject estates, and is likewise ordered to turn over to the appointed administratix all her collections of the rentals and income due on the assets of the estates in question, including all documents, papers, records and titles pertaining to such estates to the petitioner and appointed administratix CARLOTA DELGADO VDA. DE DE LA ROSA, immediately upon receipt of this Decision. The same oppositor is hereby required to render an accounting of her actual administration of the estates in controversy within a period of sixty (60) days from receipt hereof.

SO ORDERED.[28]

On May 20, 1990, oppositors filed an appeal which was denied on the ground that the record on appeal was not filed on time.[29] They then filed a petition for certiorari and mandamus [30] which was dismissed by the Court of Appeals.[31] However, on motion for reconsideration and after hearing the parties oral arguments, the Court of Appeals reversed itself and gave due course to oppositors appeal in the interest of substantial justice.[32]

In a petition for review to this Court, petitioners assailed the resolution of the Court of Appeals, on the ground that oppositors failure to file the record on appeal within the reglementary period was a jurisdictional defect which nullified the appeal. On October 10, 1997, this Court allowed the continuance of the appeal. The pertinent portion of our decision [33] read:

As a rule, periods prescribed to do certain acts must be followed. However, under exceptional circumstances, a delay in the filing of an appeal may be excused on grounds of substantial justice.

xxx

xxx

xxx

The respondent court likewise pointed out the trial courts pronouncements as to certain matters of substance, relating to the determination of the heirs of the decedents and the party entitled to the administration of their estate, which were to be raised in the appeal, but were barred absolutely by the denial of the record on appeal upon too technical ground of late filing.

xxx

xxx

xxx

In this instance, private respondents intention to raise valid issues in the appeal is apparent and should not have been construed as an attempt to delay or prolong the administration proceedings.

xxx

xxx

xxx

A review of the trial courts decision is needed.

xxx

xxx

xxx

WHEREFORE, in view of the foregoing considerations, the Court hereby AFFIRMS the Resolution dated November 27, 1991 of the Court of Appeals in CA-G.R. SP No. 23415, for the APPROVAL of the private respondents Record on Appeal and the CONTINUANCE of the appeal from the Manila, Branch LV Regional Trial Courts May 11, 1990 decision.

SO ORDERED.

Acting on the appeal, the Court of Appeals [34] partially set aside the trial courts decision. Upon motion for reconsideration,[35] the Court of Appeals amended its earlier decision. [36] The dispositive portion of the amended decision read:

With the further modification, our assailed decision is RECONSIDERED and VACATED. Consequently, the decision of the trial court is REVERSED and SET ASIDE. A new one is hereby RENDERED declaring: 1.) Dr. Guillermo Rustia and Josefa Delgado Rustia to have been legally married; 2.) the intestate estate of Dr. Guillermo Rustia, Jacoba Delgado-Encinas and the children of Gorgonio Delgado (Campo) entitled to partition among themselves the intestate estate of Josefa D. Rustia in accordance with the proportion referred to in this decision; 3.) the oppositors-appellants as the legal heirs of the late Dr. Guillermo Rustia and thereby entitled to partition his estate in accordance with the proportion referred to herein; and 4.) the intervenor-appellee Guillerma S. Rustia as ineligible to inherit from the late Dr. Guillermo Rustia; thus revoking her appointment asadministratrix of his estate.

The letters of administration of the intestate estate of Dr. Guillermo Rustia in relation to the intestate estate of Josefa Delgado shall issue to the nominee of the oppositors-appellants upon his or her qualification and filing of the requisite bond in the sum of FIVE HUNDRED THOUSAND PESOS (P500,000.00).

Oppositor-appellant Guillermina Rustia Rustia is hereby ordered to cease and desist from her acts of administration of the subject estates and to turn over to the appointed administrator all her collections of the rentals and incomes due on the assets of the estates in question, including all documents, papers, records and titles pertaining to such estates to the appointed administrator, immediately upon notice of his qualification and posting of the requisite bond, and to render an accounting of her (Guillermina Rustia Rustia) actual administration of the estates in controversy within a period of sixty (60) days from notice of the administrators qualification and posting of the bond. The issue of the validity of the affidavit of self-adjudication executed by Dr. Guillermo Rustia on June 15, 1973 is REMANDED to the trial court for further proceedings to determine the extent of the shares of JacobaDelgado-Encinas and the children of Gorgonio Delgado (Campo) affected by the said adjudication.

Hence, this recourse.

The issues for our resolution are:

1.

whether there was a valid marriage between Guillermo Rustia and Josefa Delgado;

2. 3.

who the legal heirs of the decedents Guillermo Rustia and Josefa Delgado are; who should be issued letters of administration.

THE MARRIAGE OF GUILLERMO RUSTIA AND JOSEFA DELGADO

A presumption is an inference of the existence or non-existence of a fact which courts are permitted to draw from proof of other facts. Presumptions are classified into presumptions of law and presumptions of fact. Presumptions of law are, in turn, either conclusive or disputable. [37]

Rule 131, Section 3 of the Rules of Court provides: Sec. 3. Disputable presumptions. The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: xxx xxx xxx

(aa) That a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage; xxx xxx xxx

In this case, several circumstances give rise to the presumption that a valid marriage existed between Guillermo Rustia and Josefa Delgado. Their cohabitation of more than 50 years cannot be doubted. Their family and friends knew them to be married. Their reputed status as husband and wife was such that even the original petition for letters of administration filed by Luisa Delgado vda. de Danao in 1975 referred to them as spouses. Yet, petitioners maintain that Josefa Delgado and Guillermo Rustia had simply lived together as husband and wife without the benefit of marriage. They make much of the absence of a record of the contested marriage, the testimony of a witness [38] attesting that they were not married, and a baptismal certificate which referred to JosefaDelgado as Seorita or unmarried woman.[39]

We are not persuaded. First, although a marriage contract is considered a primary evidence of marriage, its absence is not always proof that no marriage in fact took place. [40] Once the presumption of marriage arises, other evidence may be presented in support thereof. The evidence need not necessarily or directly establish the marriage but must at least be enough to strengthen the presumption of marriage. Here, the certificate of identity issued to Josefa Delgado as Mrs. Guillermo Rustia,[41] the passport issued to her as JosefaD. Rustia,[42] the declaration under oath of no less than Guillermo Rustia that he was married to Josefa Delgado[43] and the titles to the properties in the name of GuillermoRustia married to Josefa Delgado, more than adequately support the presumption of marriage. These are public

documents which are prima facie evidence of the facts stated therein. [44] No clear and convincing evidence sufficient to overcome the presumption of the truth of the recitals therein was presented by petitioners.

Second, Elisa vda. de Anson, petitioners own witness whose testimony they primarily relied upon to support their position, confirmed that Guillermo Rustia had proposed marriage to Josefa Delgado and that eventually, the two had lived together as husband and wife. This again could not but strengthen the presumption of marriage.

Third, the baptismal certificate[45] was conclusive proof only of the baptism administered by the priest who baptized the child. It was no proof of the veracity of the declarations and statements contained therein,[46] such as the alleged single or unmarried ( Seorita) civil status of Josefa Delgado who had no hand in its preparation.

Petitioners failed to rebut the presumption of marriage of Guillermo Rustia and Josefa Delgado. In this jurisdiction, every intendment of the law leans toward legitimizing matrimony. Persons dwelling together apparently in marriage are presumed to be in fact married. This is the usual order of things in society and, if the parties are not what they hold themselves out to be, they would be living in constant violation of the common rules of law and propriety. Semper praesumitur pro matrimonio. Always presume marriage.[47]

THE LAWFUL HEIRS OF JOSEFA DELGADO To determine who the lawful heirs of Josefa Delgado are, the questioned status of the cohabitation of her mother Felisa Delgado with Ramon Osorio must first be addressed.

As mentioned earlier, presumptions of law are either conclusive or disputable. Conclusive presumptions are inferences which the law makes so peremptory that no contrary proof, no matter how strong, may overturn them.[48] On the other hand, disputable presumptions, one of which is the presumption of marriage, can be relied on only in the absence of sufficient evidence to the contrary.

Little was said of the cohabitation or alleged marriage of Felisa Delgado and Ramon Osorio. The oppositors (now respondents) chose merely to rely on the disputable presumption of marriage even in the face of such countervailing evidence as (1) the continued use by Felisa and Luis (her son with Ramon Osorio) of the surname Delgado and (2) Luis Delgados and Caridad Concepcions Partida de Casamiento[49] identifying Luis as hijo natural de Felisa Delgado (the natural child of Felisa Delgado).[50]

All things considered, we rule that these factors sufficiently overcame the rebuttable presumption of marriage. Felisa Delgado and Ramon Osorio were never married. Hence, all the children born to Felisa Delgado out of her relations with Ramon Osorio and Lucio Campo, namely, Luis and his halfblood siblings Nazario, Edilberta, Jose,Jacoba, Gorgonio and the decedent Josefa, all surnamed Delgado,[51] were her natural children.[52]

Pertinent to this matter is the following observation:

Suppose, however, that A begets X with B, and Y with another woman, C; then X and Y would be natural brothers and sisters, but of half-blood relationship. Can they succeed each other reciprocally? The law prohibits reciprocal succession between illegitimate children and legitimate children of the same parent, even though there is unquestionably a tie of blood between them. It seems that to allow an illegitimate child to succeed ab intestato (from) another illegitimate child begotten with a parent different from that of the former, would be allowing the illegitimate child greater rights than a legitimate child. Notwithstanding this, however, we submit that succession should be allowed, even when the illegitimate brothers and sisters are only of the half-blood. The reason impelling the prohibition on reciprocal successions between legitimate and illegitimate families does not apply to the case under consideration. That prohibition has for its basis the difference in category between illegitimate and legitimate relatives. There is no such difference when all the children are illegitimate children of the same parent, even if begotten with different persons. They all stand on the same footing before the law, just like legitimate children of half-blood relation. We submit, therefore, that the rules regarding succession of legitimate brothers and sisters should be applicable to them. Full blood illegitimate brothers and sisters should receive double the portion of half-blood brothers and sisters; and if all are either of the full blood or of the half-blood, they shall share equally.[53]

Here, the above-named siblings of Josefa Delgado were related to her by full-blood, except Luis Delgado, her half-brother. Nonetheless, since they were all illegitimate, they may inherit from each other. Accordingly, all of them are entitled to inherit from Josefa Delgado.

We note, however, that the petitioners before us are already the nephews, nieces, grandnephews and grandnieces of Josefa Delgado. Under Article 972 of the new Civil Code, the right of representation in the collateral line takes place only in favor of the children of brothers and sisters (nephews and nieces). Consequently, it cannot be exercised by grandnephews and grandnieces. [54] Therefore, the only collateral relatives of Josefa Delgado who are entitled to partake of her intestate estate are her brothers and sisters, or their children who were still alive at the time of her death on September 8, 1972. They have a vested right to participate in the inheritance. [55] The records not being clear on this matter, it is now for the trial court to determine who were the surviving brothers and sisters (or their children) of Josefa Delgado at the time of her death. Together with Guillermo Rustia,[56] they are entitled to inherit from Josefa Delgado in accordance with Article 1001 of the new Civil Code:[57]

Art. 1001. Should brothers and sisters or their children survive with 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 one-half.

Since Josefa Delgado had heirs other than Guillermo Rustia, Guillermo could not have validly adjudicated Josefas estate all to himself. Rule 74, Section 1 of the Rules of Court is clear. Adjudication by an heir of the decedents entire estate to himself by means of an affidavit is allowed only if he is the sole heir to the estate:

SECTION 1. Extrajudicial settlement by agreement between heirs. If the decedent left no will and no debts and the heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the purpose, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary action of partition. If there is only one heir, he may adjudicate to himself the estate by means of an affidavit filed in the office of the register of deeds. x x x (emphasis supplied)

THE LAWFUL HEIRS OF GUILLERMO RUSTIA

Intervenor (now co-respondent) Guillerma Rustia is an illegitimate child [58] of Guillermo Rustia. As such, she may be entitled to successional rights only upon proof of an admission or recognition of paternity.[59] She, however, claimed the status of an acknowledged illegitimate child of Guillermo Rustia only after the death of the latter on February 28, 1974 at which time it was already the new Civil Code that was in effect.

Under the old Civil Code (which was in force till August 29, 1950), illegitimate children absolutely had no hereditary rights. This draconian edict was, however, later relaxed in the new Civil Code which granted certain successional rights to illegitimate children but only on condition that they were first recognized or acknowledged by the parent.

Under the new law, recognition may be compulsory or voluntary. [60] Recognition is compulsory in any of the following cases:

(1) (2) (3)

in cases of rape, abduction or seduction, when the period of the offense coincides more or less with that of the conception; when the child is in continuous possession of status of a child of the alleged father (or mother)[61] by the direct acts of the latter or of his family; when the child was conceived during the time when the mother cohabited with the supposed father;

(4)

when the child has in his favor any evidence or proof that the defendant is his father. [62]

On the other hand, voluntary recognition may be made in the record of birth, a will, a statement before a court of record or in any authentic writing.[63]

Intervenor Guillerma sought recognition on two grounds: first, compulsory recognition through the open and continuous possession of the status of an illegitimate child and second, voluntary recognition through authentic writing.

There was apparently no doubt that she possessed the status of an illegitimate child from her birth until the death of her putative father Guillermo Rustia. However, this did not constitute acknowledgment but a mere ground by which she could have compelled acknowledgment through the courts.[64] Furthermore, any (judicial) action for compulsory acknowledgment has a dual limitation: the lifetime of the child and the lifetime of the putative parent. [65] On the death of either, the action for compulsory recognition can no longer be filed. [66] In this case, intervenor Guillermas right to claim compulsory acknowledgment prescribed upon the death of Guillermo Rustia on February 28, 1974.

The claim of voluntary recognition (Guillermas second ground) must likewise fail. An authentic writing, for purposes of voluntary recognition, is understood as a genuine or indubitable writing of the parent (in this case, Guillermo Rustia). This includes a public instrument or a private writing admitted by the father to be his.[67] Didintervenors report card from the University of Santo Tomas and Josefa Delgados obituary prepared by Guillermo Rustia qualify as authentic writings under the new Civil Code? Unfortunately not. The report card of intervenor Guillerma did not bear the signature of Guillermo Rustia. The fact that his name appears there as intervenorsparent/guardian holds no weight since he had no participation in its preparation. Similarly, while witnesses testified that it was Guillermo Rustia himself who drafted the notice of death of Josefa Delgado which was published in the SUNDAY TIMES on September 10, 1972, that published obituary was not the authentic writing contemplated by the law. What could have been admitted as an authentic writing was the original manuscript of the notice, in the handwriting of Guillermo Rustia himself and signed by him, not the newspaper clipping of the obituary. The failure to present the original signed manuscript was fatal to intervenors claim.

The same misfortune befalls the ampun-ampunan, Guillermina Rustia Rustia, who was never adopted in accordance with law. Although a petition for her adoption was filed by Guillermo Rustia, it never came to fruition and was dismissed upon the latters death. We affirm the ruling of both the trial court and the Court of Appeals holding her a legal stranger to the deceased spouses and therefore not entitled to inherit from them ab intestato. We quote:

Adoption is a juridical act, a proceeding in rem, which [created] between two persons a relationship similar to that which results from legitimate paternity and filiation. Only an adoption made through the court, or in pursuance with the procedure laid down under Rule 99 of the Rules of Court is valid in this jurisdiction. It is not of natural law at all, but is wholly and entirely artificial. To establish the relation, the statutory requirements must be strictly carried out, otherwise, the adoption is an absolute

nullity. The fact of adoption is never presumed, but must be affirmatively [proven] by the person claiming its existence.[68]

Premises considered, we rule that two of the claimants to the estate of Guillermo Rustia, namely, intervenor Guillerma Rustia and the ampun-ampunan GuillerminaRustia Rustia, are not lawful heirs of the decedent. Under Article 1002 of the new Civil Code, if there are no descendants, ascendants, illegitimate children, or surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased. Therefore, the lawful heirs of Guillermo Rustia are the remaining claimants, consisting of his sisters,[69] nieces and nephews.[70]

ENTITLEMENT TO LETTERS OF ADMINISTRATION An administrator is a person appointed by the court to administer the intestate estate of the decedent. Rule 78, Section 6 of the Rules of Court prescribes an order of preference in the appointment of an administrator:

Sec. 6. When and to whom letters of administration granted . If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give a bond, or a person dies intestate, administration shall be granted:

(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve;

(b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that the administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve;

(c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select.

In the appointment of an administrator, the principal consideration is the interest in the estate of the one to be appointed.[71] The order of preference does not rule out the appointment of coadministrators, specially in cases where

justice and equity demand that opposing parties or factions be represented in the management of the estates,[72] a situation which obtains here.

It is in this light that we see fit to appoint joint administrators, in the persons of Carlota Delgado vda. de de la Rosa and a nominee of the nephews and nieces of Guillermo Rustia. They are the next of kin of the deceased spouses Josefa Delgado and Guillermo Rustia, respectively. WHEREFORE, the petition (which seeks to reinstate the May 11, 1990 decision of the RTC Manila, Branch 55) is hereby DENIED. The assailed October 24, 2002 decision of the Court of Appeals is AFFIRMED with the following modifications:

1. 2.

Guillermo Rustias June 15, 1973 affidavit of self-adjudication is hereby ANNULLED. the intestate estate of Guillermo Rustia shall inherit half of the intestate estate of Josefa Delgado. The remaining half shall pertain to (a) the full and half-siblings ofJosefa Delgado who survived her and (b) the children of any of Josefa Delgados fullor half-siblings who may have predeceased her, also surviving at the time of her death. Josefa Delgados grandnephews and grandnieces are excluded from her estate. In this connection, the trial court is hereby ordered to determine the identities of the relatives of Josefa Delgado who are entitled to share in her estate. Guillermo Rustias estate (including its one-half share of Josefa Delgados estate) shall be inherited by Marciana Rustia vda. de Damian and Hortencia Rustia Cruz (whose respective shares shall be per capita) and the children of the late Roman Rustia, Sr. (who survived Guillermo Rustia and whose respective shares shall beper stirpes). Considering that Marciana Rustia vda. de Damian and Hortencia Rustia Cruz are now deceased, their respective shares shall pertain to their estates. Letters of administration over the still unsettled intestate estates of Guillermo Rustia and Josefa Delgado shall issue to Carlota Delgado vda. de de la Rosa and to a nominee from among the heirs of Guillermo Rustia, as joint administrators, upon their qualification and filing of the requisite bond in such amount as may be determined by the trial court.

3.

4.

No pronouncement as to costs. SO ORDERED

RENATO C. CORONA Associate Justice

EN BANC G.R. No. L-19671 November 29, 1965

PASTOR B. TENCHAVEZ, plaintiff-appellant, vs. VICENTA F. ESCAO, ET AL., defendants-appellees. I. V. Binamira & F. B. Barria for plaintiff-appellant. Jalandoni & Jarnir for defendants-appellees. REYES, J.B.L., J.: Direct appeal, on factual and legal questions, from the judgment of the Court of First Instance of Cebu, in its Civil Case No. R-4177, denying the claim of the plaintiff-appellant, Pastor B. Tenchavez, for legal separation and one million pesos in damages against his wife and parents-in-law, the defendantsappellees, Vicente, Mamerto and Mena,1 all surnamed "Escao," respectively.2 The facts, supported by the evidence of record, are the following: Missing her late afternoon classes on 24 February 1948 in the University of San Carlos, Cebu City, where she was then enrolled as a second year student of commerce, Vicenta Escao, 27 years of age (scion of

a well-to-do and socially prominent Filipino family of Spanish ancestry and a "sheltered colegiala"), exchanged marriage vows with Pastor Tenchavez, 32 years of age, an engineer, ex-army officer and of undistinguished stock, without the knowledge of her parents, before a Catholic chaplain, Lt. Moises Lavares, in the house of one Juan Alburo in the said city. The marriage was the culmination of a previous love affair and was duly registered with the local civil register. Vicenta's letters to Pastor, and his to her, before the marriage, indicate that the couple were deeply in love. Together with a friend, Pacita Noel, their matchmaker and go-between, they had planned out their marital future whereby Pacita would be the governess of their first-born; they started saving money in a piggy bank. A few weeks before their secret marriage, their engagement was broken; Vicenta returned the engagement ring and accepted another suitor, Joseling Lao. Her love for Pastor beckoned; she pleaded for his return, and they reconciled. This time they planned to get married and then elope. To facilitate the elopement, Vicenta had brought some of her clothes to the room of Pacita Noel in St. Mary's Hall, which was their usual trysting place. Although planned for the midnight following their marriage, the elopement did not, however, materialize because when Vicente went back to her classes after the marriage, her mother, who got wind of the intended nuptials, was already waiting for her at the college. Vicenta was taken home where she admitted that she had already married Pastor. Mamerto and Mena Escao were surprised, because Pastor never asked for the hand of Vicente, and were disgusted because of the great scandal that the clandestine marriage would provoke (t.s.n., vol. III, pp. 1105-06). The following morning, the Escao spouses sought priestly advice. Father Reynes suggested a recelebration to validate what he believed to be an invalid marriage, from the standpoint of the Church, due to the lack of authority from the Archbishop or the parish priest for the officiating chaplain to celebrate the marriage. The recelebration did not take place, because on 26 February 1948 Mamerto Escao was handed by a maid, whose name he claims he does not remember, a letter purportedly coming from San Carlos college students and disclosing an amorous relationship between Pastor Tenchavez and Pacita Noel; Vicenta translated the letter to her father, and thereafter would not agree to a new marriage. Vicenta and Pastor met that day in the house of Mrs. Pilar Mendezona. Thereafter, Vicenta continued living with her parents while Pastor returned to his job in Manila. Her letter of 22 March 1948 (Exh. "M"), while still solicitous of her husband's welfare, was not as endearing as her previous letters when their love was aflame. Vicenta was bred in Catholic ways but is of a changeable disposition, and Pastor knew it. She fondly accepted her being called a "jellyfish." She was not prevented by her parents from communicating with Pastor (Exh. "1-Escao"), but her letters became less frequent as the days passed. As of June, 1948 the newlyweds were already estranged (Exh. "2-Escao"). Vicenta had gone to Jimenez, Misamis Occidental, to escape from the scandal that her marriage stirred in Cebu society. There, a lawyer filed for her a petition, drafted by then Senator Emmanuel Pelaez, to annul her marriage. She did not sign the petition (Exh. "B-5"). The case was dismissed without prejudice because of her non-appearance at the hearing (Exh. "B-4"). On 24 June 1950, without informing her husband, she applied for a passport, indicating in her application that she was single, that her purpose was to study, and she was domiciled in Cebu City, and that she intended to return after two years. The application was approved, and she left for the United States. On 22 August 1950, she filed a verified complaint for divorce against the herein plaintiff in the Second Judicial District Court of the State of Nevada in and for the County of Washoe, on the ground of "extreme cruelty, entirely mental in character." On 21 October 1950, a decree of divorce, "final and absolute", was issued in open court by the said tribunal. In 1951 Mamerto and Mena Escao filed a petition with the Archbishop of Cebu to annul their daughter's marriage to Pastor (Exh. "D"). On 10 September 1954, Vicenta sought papal dispensation of her marriage (Exh. "D"-2).

On 13 September 1954, Vicenta married an American, Russell Leo Moran, in Nevada. She now lives with him in California, and, by him, has begotten children. She acquired American citizenship on 8 August 1958. But on 30 July 1955, Tenchavez had initiated the proceedings at bar by a complaint in the Court of First Instance of Cebu, and amended on 31 May 1956, against Vicenta F. Escao, her parents, Mamerto and Mena Escao, whom he charged with having dissuaded and discouraged Vicenta from joining her husband, and alienating her affections, and against the Roman Catholic Church, for having, through its Diocesan Tribunal, decreed the annulment of the marriage, and asked for legal separation and one million pesos in damages. Vicenta claimed a valid divorce from plaintiff and an equally valid marriage to her present husband, Russell Leo Moran; while her parents denied that they had in any way influenced their daughter's acts, and counterclaimed for moral damages. The appealed judgment did not decree a legal separation, but freed the plaintiff from supporting his wife and to acquire property to the exclusion of his wife. It allowed the counterclaim of Mamerto Escao and Mena Escao for moral and exemplary damages and attorney's fees against the plaintiff-appellant, to the extent of P45,000.00, and plaintiff resorted directly to this Court. The appellant ascribes, as errors of the trial court, the following: 1. In not declaring legal separation; in not holding defendant Vicenta F. Escao liable for damages and in dismissing the complaint;. 2. In not holding the defendant parents Mamerto Escano and the heirs of Doa Mena Escao liable for damages;. 3 In holding the plaintiff liable for and requiring him to pay the damages to the defendant parents on their counterclaims; and. 4. In dismissing the complaint and in denying the relief sought by the plaintiff. That on 24 February 1948 the plaintiff-appellant, Pastor Tenchavez, and the defendant-appellee, Vicenta Escao, were validly married to each other, from the standpoint of our civil law, is clearly established by the record before us. Both parties were then above the age of majority, and otherwise qualified; and both consented to the marriage, which was performed by a Catholic priest (army chaplain Lavares) in the presence of competent witnesses. It is nowhere shown that said priest was not duly authorized under civil law to solemnize marriages. The chaplain's alleged lack of ecclesiastical authorization from the parish priest and the Ordinary, as required by Canon law, is irrelevant in our civil law, not only because of the separation of Church and State but also because Act 3613 of the Philippine Legislature (which was the marriage law in force at the time) expressly provided that SEC. 1. Essential requisites. Essential requisites for marriage are the legal capacity of the contracting parties and consent. (Emphasis supplied) The actual authority of the solemnizing officer was thus only a formal requirement, and, therefore, not essential to give the marriage civil effects,3 and this is emphasized by section 27 of said marriage act, which provided the following: SEC. 27. Failure to comply with formal requirements. No marriage shall be declared invalid because of the absence of one or several of the formal requirements of this Act if, when it was

performed, the spouses or one of them believed in good faith that the person who solemnized the marriage was actually empowered to do so, and that the marriage was perfectly legal. The good faith of all the parties to the marriage (and hence the validity of their marriage) will be presumed until the contrary is positively proved (Lao vs. Dee Tim, 45 Phil. 739, 745; Francisco vs. Jason, 60 Phil. 442, 448). It is well to note here that in the case at bar, doubts as to the authority of the solemnizing priest arose only after the marriage, when Vicenta's parents consulted Father Reynes and the archbishop of Cebu. Moreover, the very act of Vicenta in abandoning her original action for annulment and subsequently suing for divorce implies an admission that her marriage to plaintiff was valid and binding. Defendant Vicenta Escao argues that when she contracted the marriage she was under the undue influence of Pacita Noel, whom she charges to have been in conspiracy with appellant Tenchavez. Even granting, for argument's sake, the truth of that contention, and assuming that Vicenta's consent was vitiated by fraud and undue influence, such vices did not render her marriage ab initio void, but merely voidable, and the marriage remained valid until annulled by a competent civil court. This was never done, and admittedly, Vicenta's suit for annulment in the Court of First Instance of Misamis was dismissed for non-prosecution. It is equally clear from the record that the valid marriage between Pastor Tenchavez and Vicenta Escao remained subsisting and undissolved under Philippine law, notwithstanding the decree of absolute divorce that the wife sought and obtained on 21 October 1950 from the Second Judicial District Court of Washoe County, State of Nevada, on grounds of "extreme cruelty, entirely mental in character." At the time the divorce decree was issued, Vicenta Escao, like her husband, was still a Filipino citizen. 4 She was then subject to Philippine law, and Article 15 of the Civil Code of the Philippines (Rep. Act No. 386), already in force at the time, expressly provided: Laws relating to family rights and duties or to the status, condition and legal capacity of persons are binding upon the citizens of the Philippines, even though living abroad. The Civil Code of the Philippines, now in force, does not admit absolute divorce, quo ad vinculo matrimonii; and in fact does not even use that term, to further emphasize its restrictive policy on the matter, in contrast to the preceding legislation that admitted absolute divorce on grounds of adultery of the wife or concubinage of the husband (Act 2710). Instead of divorce, the present Civil Code only provides for legal separation (Title IV, Book 1, Arts. 97 to 108), and, even in that case, it expressly prescribes that "the marriage bonds shall not be severed" (Art. 106, subpar. 1). For the Philippine courts to recognize and give recognition or effect to a foreign decree of absolute divorce betiveen Filipino citizens could be a patent violation of the declared public policy of the state, specially in view of the third paragraph of Article 17 of the Civil Code that prescribes the following: Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, policy and good customs, shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. Even more, the grant of effectivity in this jurisdiction to such foreign divorce decrees would, in effect, give rise to an irritating and scandalous discrimination in favor of wealthy citizens, to the detriment of those members of our polity whose means do not permit them to sojourn abroad and obtain absolute divorces outside the Philippines. From this point of view, it is irrelevant that appellant Pastor Tenchavez should have appeared in the Nevada divorce court. Primarily because the policy of our law cannot be nullified by acts of private parties (Civil Code,Art. 17, jam quot.); and additionally, because the mere appearance of a non-resident consort cannot confer jurisdiction where the court originally had none (Area vs. Javier, 95 Phil. 579).

From the preceding facts and considerations, there flows as a necessary consequence that in this jurisdiction Vicenta Escao's divorce and second marriage are not entitled to recognition as valid; for her previous union to plaintiff Tenchavez must be declared to be existent and undissolved. It follows, likewise, that her refusal to perform her wifely duties, and her denial of consortium and her desertion of her husband constitute in law a wrong caused through her fault, for which the husband is entitled to the corresponding indemnity (Civil Code, Art. 2176). Neither an unsubstantiated charge of deceit nor an anonymous letter charging immorality against the husband constitute, contrary to her claim, adequate excuse. Wherefore, her marriage and cohabitation with Russell Leo Moran is technically "intercourse with a person not her husband" from the standpoint of Philippine Law, and entitles plaintiff-appellant Tenchavez to a decree of "legal separation under our law, on the basis of adultery" (Revised Penal Code, Art. 333). The foregoing conclusions as to the untoward effect of a marriage after an invalid divorce are in accord with the previous doctrines and rulings of this court on the subject, particularly those that were rendered under our laws prior to the approval of the absolute divorce act (Act 2710 of the Philippine Legislature). As a matter of legal history, our statutes did not recognize divorces a vinculo before 1917, when Act 2710 became effective; and the present Civil Code of the Philippines, in disregarding absolute divorces, in effect merely reverted to the policies on the subject prevailing before Act 2710. The rulings, therefore, under the Civil Code of 1889, prior to the Act above-mentioned, are now, fully applicable. Of these, the decision in Ramirez vs. Gmur, 42 Phil. 855, is of particular interest. Said this Court in that case: As the divorce granted by the French Court must be ignored, it results that the marriage of Dr. Mory and Leona Castro, celebrated in London in 1905, could not legalize their relations; and the circumstance that they afterwards passed for husband and wife in Switzerland until her death is wholly without legal significance. The claims of the very children to participate in the estate of Samuel Bishop must therefore be rejected. The right to inherit is limited to legitimate, legitimated and acknowledged natural children. The children of adulterous relations are wholly excluded. The word "descendants" as used in Article 941 of the Civil Code cannot be interpreted to include illegitimates born of adulterous relations. (Emphasis supplied) Except for the fact that the successional rights of the children, begotten from Vicenta's marriage to Leo Moran after the invalid divorce, are not involved in the case at bar, the Gmur case is authority for the proposition that such union is adulterous in this jurisdiction, and, therefore, justifies an action for legal separation on the part of the innocent consort of the first marriage, that stands undissolved in Philippine law. In not so declaring, the trial court committed error. True it is that our ruling gives rise to anomalous situations where the status of a person (whether divorced or not) would depend on the territory where the question arises. Anomalies of this kind are not new in the Philippines, and the answer to them was given in Barretto vs. Gonzales, 58 Phil. 667: The hardship of the existing divorce laws in the Philippine Islands are well known to the members of the Legislature. It is the duty of the Courts to enforce the laws of divorce as written by Legislature if they are constitutional. Courts have no right to say that such laws are too strict or too liberal. (p. 72) The appellant's first assignment of error is, therefore, sustained. However, the plaintiff-appellant's charge that his wife's parents, Dr. Mamerto Escao and his wife, the late Doa Mena Escao, alienated the affections of their daughter and influenced her conduct toward her husband are not supported by credible evidence. The testimony of Pastor Tenchavez about the Escao's animosity toward him strikes us to be merely conjecture and exaggeration, and are belied by Pastor's own letters written before this suit was begun (Exh. "2-Escao" and "Vicenta," Rec. on App., pp. 270-274). In these letters he expressly apologized to the defendants for "misjudging them" and for the "great unhappiness" caused by his "impulsive blunders" and "sinful pride," "effrontery and audacity" [sic]. Plaintiff

was admitted to the Escao house to visit and court Vicenta, and the record shows nothing to prove that he would not have been accepted to marry Vicente had he openly asked for her hand, as good manners and breeding demanded. Even after learning of the clandestine marriage, and despite their shock at such unexpected event, the parents of Vicenta proposed and arranged that the marriage be recelebrated in strict conformity with the canons of their religion upon advice that the previous one was canonically defective. If no recelebration of the marriage ceremony was had it was not due to defendants Mamerto Escao and his wife, but to the refusal of Vicenta to proceed with it. That the spouses Escao did not seek to compel or induce their daughter to assent to the recelebration but respected her decision, or that they abided by her resolve, does not constitute in law an alienation of affections. Neither does the fact that Vicenta's parents sent her money while she was in the United States; for it was natural that they should not wish their daughter to live in penury even if they did not concur in her decision to divorce Tenchavez (27 Am. Jur. 130-132). There is no evidence that the parents of Vicenta, out of improper motives, aided and abetted her original suit for annulment, or her subsequent divorce; she appears to have acted independently, and being of age, she was entitled to judge what was best for her and ask that her decisions be respected. Her parents, in so doing, certainly cannot be charged with alienation of affections in the absence of malice or unworthy motives, which have not been shown, good faith being always presumed until the contrary is proved. SEC. 529. Liability of Parents, Guardians or Kin. The law distinguishes between the right of a parent to interest himself in the marital affairs of his child and the absence of rights in a stranger to intermeddle in such affairs. However, such distinction between the liability of parents and that of strangers is only in regard to what will justify interference. A parent isliable for alienation of affections resulting from his own malicious conduct, as where he wrongfully entices his son or daughter to leave his or her spouse, but he is not liable unless he acts maliciously, without justification and from unworthy motives. He is not liable where he acts and advises his child in good faith with respect to his child's marital relations in the interest of his child as he sees it, the marriage of his child not terminating his right and liberty to interest himself in, and be extremely solicitous for, his child's welfare and happiness, even where his conduct and advice suggest or result in the separation of the spouses or the obtaining of a divorce or annulment, or where he acts under mistake or misinformation, or where his advice or interference are indiscreet or unfortunate, although it has been held that the parent is liable for consequences resulting from recklessness. He may in good faith take his child into his home and afford him or her protection and support, so long as he has not maliciously enticed his child away, or does not maliciously entice or cause him or her to stay away, from his or her spouse. This rule has more frequently been applied in the case of advice given to a married daughter, but it is equally applicable in the case of advice given to a son. Plaintiff Tenchavez, in falsely charging Vicenta's aged parents with racial or social discrimination and with having exerted efforts and pressured her to seek annulment and divorce, unquestionably caused them unrest and anxiety, entitling them to recover damages. While this suit may not have been impelled by actual malice, the charges were certainly reckless in the face of the proven facts and circumstances. Court actions are not established for parties to give vent to their prejudices or spleen. In the assessment of the moral damages recoverable by appellant Pastor Tenchavez from defendant Vicente Escao, it is proper to take into account, against his patently unreasonable claim for a million pesos in damages, that (a) the marriage was celebrated in secret, and its failure was not characterized by publicity or undue humiliation on appellant's part; (b) that the parties never lived together; and (c) that there is evidence that appellant had originally agreed to the annulment of the marriage, although such a promise was legally invalid, being against public policy (cf. Art. 88, Civ. Code). While appellant is unable to remarry under our law, this fact is a consequence of the indissoluble character of the union that appellant entered into voluntarily and with open eyes rather than of her divorce and her second marriage. All told, we are of the opinion that appellant should recover P25,000 only by way of moral damages and attorney's fees.

With regard to the P45,000 damages awarded to the defendants, Dr. Mamerto Escao and Mena Escao, by the court below, we opine that the same are excessive. While the filing of this unfounded suit must have wounded said defendants' feelings and caused them anxiety, the same could in no way have seriously injured their reputation, or otherwise prejudiced them, lawsuits having become a common occurrence in present society. What is important, and has been correctly established in the decision of the court below, is that said defendants were not guilty of any improper conduct in the whole deplorable affair. This Court, therefore, reduces the damages awarded to P5,000 only. Summing up, the Court rules: (1) That a foreign divorce between Filipino citizens, sought and decreed after the effectivity of the present Civil Code (Rep. Act 386), is not entitled to recognition as valid in this jurisdiction; and neither is the marriage contracted with another party by the divorced consort, subsequently to the foreign decree of divorce, entitled to validity in the country; (2) That the remarriage of divorced wife and her co-habitation with a person other than the lawful husband entitle the latter to a decree of legal separation conformably to Philippine law; (3) That the desertion and securing of an invalid divorce decree by one consort entitles the other to recover damages; (4) That an action for alienation of affections against the parents of one consort does not lie in the absence of proof of malice or unworthy motives on their part. WHEREFORE, the decision under appeal is hereby modified as follows; (1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a decree of legal separation from defendant Vicenta F. Escao; (2) Sentencing defendant-appellee Vicenta Escao to pay plaintiff-appellant Tenchavez the amount of P25,000 for damages and attorneys' fees; (3) Sentencing appellant Pastor Tenchavez to pay the appellee, Mamerto Escao and the estate of his wife, the deceased Mena Escao, P5,000 by way of damages and attorneys' fees. Neither party to recover costs. Bengzon, C.J., Bautista Angelo, Concepcion, Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar, JJ., concur.

SECOND DIVISION G.R. No. 152577 September 21, 2005 REPUBLIC OF THE PHILIPPINES, Petitioners, vs. CRASUS L. IYOY, Respondent. DECISION CHICO-NAZARIO, J.: In this Petition for Review on Certiorari under Rule 45 of the Rules of Court, petitioner Republic of the Philippines, represented by the Office of the Solicitor General, prays for the reversal of the Decision of the Court of Appeals in CA-G.R. CV No. 62539, dated 30 July 2001, 1 affirming the Judgment of the Regional Trial Court (RTC) of Cebu City, Branch 22, in Civil Case No. CEB-20077, dated 30 October 1998,2 declaring the marriage between respondent Crasus L. Iyoy and Fely Ada Rosal-Iyoy null and void on the basis of Article 36 of the Family Code of the Philippines. The proceedings before the RTC commenced with the filing of a Complaint 3 for declaration of nullity of marriage by respondent Crasus on 25 March 1997. According to the said Complaint, respondent Crasus married Fely on 16 December 1961 at Bradford Memorial Church, Jones Avenue, Cebu City. As a result of their union, they had five children Crasus, Jr., Daphne, Debbie, Calvert, and Carlos who are now all of legal ages. After the celebration of their marriage, respondent Crasus discovered that Fely was "hottempered, a nagger and extravagant." In 1984, Fely left the Philippines for the United States of America (U.S.A.), leaving all of their five children, the youngest then being only six years old, to the care of respondent Crasus. Barely a year after Fely left for the U.S.A., respondent Crasus received a letter from her requesting that he sign the enclosed divorce papers; he disregarded the said request. Sometime in 1985, respondent Crasus learned, through the letters sent by Fely to their children, that Fely got married to an American, with whom she eventually had a child. In 1987, Fely came back to the Philippines with her American family, staying at Cebu Plaza Hotel in Cebu City. Respondent Crasus did not bother to talk to Fely because he was afraid he might not be able to bear the sorrow and the pain she had caused him. Fely returned to the Philippines several times more: in 1990, for the wedding of their eldest child, Crasus, Jr.; in 1992, for the brain operation of their fourth child, Calvert; and in 1995, for unknown reasons. Fely continued to live with her American family in New Jersey, U.S.A. She had been openly using the surname

of her American husband in the Philippines and in the U.S.A. For the wedding of Crasus, Jr., Fely herself had invitations made in which she was named as "Mrs. Fely Ada Micklus." At the time the Complaint was filed, it had been 13 years since Fely left and abandoned respondent Crasus, and there was no more possibility of reconciliation between them. Respondent Crasus finally alleged in his Complaint that Felys acts brought danger and dishonor to the family, and clearly demonstrated her psychological incapacity to perform the essential obligations of marriage. Such incapacity, being incurable and continuing, constitutes a ground for declaration of nullity of marriage under Article 36, in relation to Articles 68, 70, and 72, of the Family Code of the Philippines. Fely filed her Answer and Counterclaim4 with the RTC on 05 June 1997. She asserted therein that she was already an American citizen since 1988 and was now married to Stephen Micklus. While she admitted being previously married to respondent Crasus and having five children with him, Fely refuted the other allegations made by respondent Crasus in his Complaint. She explained that she was no more hot-tempered than any normal person, and she may had been indignant at respondent Crasus on certain occasions but it was because of the latters drunkenness, womanizing, and lack of sincere effort to find employment and to contribute to the maintenance of their household. She could not have been extravagant since the family hardly had enough money for basic needs. Indeed, Fely left for abroad for financial reasons as respondent Crasus had no job and what she was then earning as the sole breadwinner in the Philippines was insufficient to support their family. Although she left all of her children with respondent Crasus, she continued to provide financial support to them, as well as, to respondent Crasus. Subsequently, Fely was able to bring her children to the U.S.A., except for one, Calvert, who had to stay behind for medical reasons. While she did file for divorce from respondent Crasus, she denied having herself sent a letter to respondent Crasus requesting him to sign the enclosed divorce papers. After securing a divorce from respondent Crasus, Fely married her American husband and acquired American citizenship. She argued that her marriage to her American husband was legal because now being an American citizen, her status shall be governed by the law of her present nationality. Fely also pointed out that respondent Crasus himself was presently living with another woman who bore him a child. She also accused respondent Crasus of misusing the amount of P90,000.00 which she advanced to him to finance the brain operation of their son, Calvert. On the basis of the foregoing, Fely also prayed that the RTC declare her marriage to respondent Crasus null and void; and that respondent Crasus be ordered to pay to Fely the P90,000.00 she advanced to him, with interest, plus, moral and exemplary damages, attorneys fees, and litigation expenses. After respondent Crasus and Fely had filed their respective Pre-Trial Briefs, 5 the RTC afforded both parties the opportunity to present their evidence. Petitioner Republic participated in the trial through the Provincial Prosecutor of Cebu.6 Respondent Crasus submitted the following pieces of evidence in support of his Complaint: (1) his own testimony on 08 September 1997, in which he essentially reiterated the allegations in his Complaint; 7 (2) the Certification, dated 13 April 1989, by the Health Department of Cebu City, on the recording of the Marriage Contract between respondent Crasus and Fely in the Register of Deeds, such marriage celebration taking place on 16 December 1961;8 and (3) the invitation to the wedding of Crasus, Jr., their eldest son, wherein Fely openly used her American husbands surname, Micklus. 9 Felys counsel filed a Notice,10 and, later on, a Motion,11 to take the deposition of witnesses, namely, Fely and her children, Crasus, Jr. and Daphne, upon written interrogatories, before the consular officers of the Philippines in New York and California, U.S.A, where the said witnesses reside. Despite the Orders 12 and Commissions13 issued by the RTC to the Philippine Consuls of New York and California, U.S.A., to take the depositions of the witnesses upon written interrogatories, not a single deposition was ever submitted to the RTC. Taking into account that it had been over a year since respondent Crasus had presented his evidence and that Fely failed to exert effort to have the case progress, the RTC issued an Order, dated 05 October 1998,14 considering Fely to have waived her right to present her evidence. The case was thus deemed submitted for decision.

Not long after, on 30 October 1998, the RTC promulgated its Judgment declaring the marriage of respondent Crasus and Fely null and void ab initio, on the basis of the following findings The ground bearing defendants psychological incapacity deserves a reasonable consideration. As observed, plaintiffs testimony is decidedly credible. The Court finds that defendant had indeed exhibited unmistakable signs of psychological incapacity to comply with her marital duties such as striving for family unity, observing fidelity, mutual love, respect, help and support. From the evidence presented, plaintiff adequately established that the defendant practically abandoned him. She obtained a divorce decree in the United States of America and married another man and has establish [ sic] another family of her own. Plaintiff is in an anomalous situation, wherein he is married to a wife who is already married to another man in another country. Defendants intolerable traits may not have been apparent or manifest before the marriage, the FAMILY CODE nonetheless allows the annulment of the marriage provided that these were eventually manifested after the wedding. It appears to be the case in this instance. Certainly defendants posture being an irresponsible wife erringly reveals her very low regard for that sacred and inviolable institution of marriage which is the foundation of human society throughout the civilized world. It is quite evident that the defendant is bereft of the mind, will and heart to comply with her marital obligations, such incapacity was already there at the time of the marriage in question is shown by defendants own attitude towards her marriage to plaintiff. In sum, the ground invoked by plaintiff which is defendants psychological incapacity to comply with the essential marital obligations which already existed at the time of the marriage in question has been satisfactorily proven. The evidence in herein case establishes the irresponsibility of defendant Fely Ada Rosal Iyoy, firmly. Going over plaintiffs testimony which is decidedly credible, the Court finds that the defendant had indeed exhibited unmistakable signs of such psychological incapacity to comply with her marital obligations. These are her excessive disposition to material things over and above the marital stability. That such incapacity was already there at the time of the marriage in question is shown by defendants own attitude towards her marriage to plaintiff. And for these reasons there is a legal ground to declare the marriage of plaintiff Crasus L. Iyoy and defendant Fely Ada Rosal Iyoy null and void ab initio.15 Petitioner Republic, believing that the afore-quoted Judgment of the RTC was contrary to law and evidence, filed an appeal with the Court of Appeals. The appellate court, though, in its Decision, dated 30 July 2001, affirmed the appealed Judgment of the RTC, finding no reversible error therein. It even offered additional ratiocination for declaring the marriage between respondent Crasus and Fely null and void, to wit Defendant secured a divorce from plaintiff-appellee abroad, has remarried, and is now permanently residing in the United States. Plaintiff-appellee categorically stated this as one of his reasons for seeking the declaration of nullity of their marriage Article 26 of the Family Code provides: "Art. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.

"WHERE A MARRIAGE BETWEEN A FILIPINO CITIZEN AND A FOREIGNER IS VALIDLY CELEBRATED AND A DIVORCE IS THEREAFTER VALIDLY OBTAINED ABROAD BY THE ALIEN SPOUSE CAPACITATING HIM OR HER TO REMARRY, THE FILIPINO SPOUSE SHALL LIKEWISE HAVE CAPACITY TO REMARRY UNDER PHILIPPINE LAW." The rationale behind the second paragraph of the above-quoted provision is to avoid the absurd and unjust situation of a Filipino citizen still being married to his or her alien spouse, although the latter is no longer married to the Filipino spouse because he or she has obtained a divorce abroad. In the case at bench, the defendant has undoubtedly acquired her American husbands citizenship and thus has become an alien as well. This Court cannot see why the benefits of Art. 26 aforequoted can not be extended to a Filipino citizen whose spouse eventually embraces another citizenship and thus becomes herself an alien. It would be the height of unfairness if, under these circumstances, plaintiff would still be considered as married to defendant, given her total incapacity to honor her marital covenants to the former. To condemn plaintiff to remain shackled in a marriage that in truth and in fact does not exist and to remain married to a spouse who is incapacitated to discharge essential marital covenants, is verily to condemn him to a perpetual disadvantage which this Court finds abhorrent and will not countenance. Justice dictates that plaintiff be given relief by affirming the trial courts declaration of the nullity of the marriage of the parties. 16 After the Court of Appeals, in a Resolution, dated 08 March 2002, 17 denied its Motion for Reconsideration, petitioner Republic filed the instant Petition before this Court, based on the following arguments/grounds I. Abandonment by and sexual infidelity of respondents wife do not per se constitute psychological incapacity. II. The Court of Appeals has decided questions of substance not in accord with law and jurisprudence considering that the Court of Appeals committed serious errors of law in ruling that Article 26, paragraph 2 of the Family Code is inapplicable to the case at bar. 18 In his Comment19 to the Petition, respondent Crasus maintained that Felys psychological incapacity was clearly established after a full-blown trial, and that paragraph 2 of Article 26 of the Family Code of the Philippines was indeed applicable to the marriage of respondent Crasus and Fely, because the latter had already become an American citizen. He further questioned the personality of petitioner Republic, represented by the Office of the Solicitor General, to institute the instant Petition, because Article 48 of the Family Code of the Philippines authorizes the prosecuting attorney or fiscal assigned to the trial court, not the Solicitor General, to intervene on behalf of the State, in proceedings for annulment and declaration of nullity of marriages. After having reviewed the records of this case and the applicable laws and jurisprudence, this Court finds the instant Petition to be meritorious. I The totality of evidence presented during trial is insufficient to support the finding of psychological incapacity of Fely. Article 36, concededly one of the more controversial provisions of the Family Code of the Philippines, reads ART. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.

Issues most commonly arise as to what constitutes psychological incapacity. In a series of cases, this Court laid down guidelines for determining its existence. In Santos v. Court of Appeals,20 the term psychological incapacity was defined, thus ". . . [P]sychological incapacity" should refer to no less than a mental (not physical) incapacity that causes a party to be truly cognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of "psychological incapacity" to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. This psychological condition must exist at the time the marriage is celebrated21 The psychological incapacity must be characterized by (a) Gravity It must be grave or serious such that the party would be incapable of carrying out the ordinary duties required in a marriage; (b) Juridical Antecedence It must be rooted in the history of the party antedating the marriage, although the overt manifestations may emerge only after the marriage; and (c) Incurability It must be incurable or, even if it were otherwise, the cure would be beyond the means of the party involved.22 More definitive guidelines in the interpretation and application of Article 36 of the Family Code of the Philippines were handed down by this Court in Republic v. Court of Appeals and Molina,23 which, although quite lengthy, by its significance, deserves to be reproduced below (1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an entire Article on the Family, recognizing it "as the foundation of the nation." It decrees marriage as legally "inviolable," thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be "protected" by the state. The Family Code echoes this constitutional edict on marriage and the family and emphasizes their permanence, inviolability and solidarity. (2) The root cause of the psychological incapacity must be (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological - not physical, although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or psychically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle of ejusdem generis, nevertheless such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists. (3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage. The evidence must show that the illness was existing when the parties exchanged their "I do's." The

manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto. (4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job (5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, "mild characteriological peculiarities, mood changes, occasional emotional outbursts" cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage. (6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision. (7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts (8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095.24 A later case, Marcos v. Marcos,25 further clarified that there is no requirement that the defendant/respondent spouse should be personally examined by a physician or psychologist as a condition sine qua non for the declaration of nullity of marriage based on psychological incapacity. Such psychological incapacity, however, must be established by the totality of the evidence presented during the trial. Using the guidelines established by the afore-mentioned jurisprudence, this Court finds that the totality of evidence presented by respondent Crasus failed miserably to establish the alleged psychological incapacity of his wife Fely; therefore, there is no basis for declaring their marriage null and void under Article 36 of the Family Code of the Philippines. The only substantial evidence presented by respondent Crasus before the RTC was his testimony, which can be easily put into question for being self-serving, in the absence of any other corroborating evidence. He submitted only two other pieces of evidence: (1) the Certification on the recording with the Register of Deeds of the Marriage Contract between respondent Crasus and Fely, such marriage being celebrated on 16 December 1961; and (2) the invitation to the wedding of Crasus, Jr., their eldest son, in which Fely used her American husbands surname. Even considering the admissions made by Fely herself in her Answer to respondent Crasuss Complaint filed with the RTC, the evidence is not enough to convince this Court that Fely had such a grave mental illness that prevented her from assuming the essential obligations of marriage.

It is worthy to emphasize that Article 36 of the Family Code of the Philippines contemplates downright incapacity or inability to take cognizance of and to assume the basic marital obligations; not a mere refusal, neglect or difficulty, much less, ill will, on the part of the errant spouse. 26 Irreconcilable differences, conflicting personalities, emotional immaturity and irresponsibility, physical abuse, habitual alcoholism, sexual infidelity or perversion, and abandonment, by themselves, also do not warrant a finding of psychological incapacity under the said Article. 27 As has already been stressed by this Court in previous cases, Article 36 "is not to be confused with a divorce law that cuts the marital bond at the time the causes therefore manifest themselves. It refers to a serious psychological illness afflicting a party even before the celebration of marriage. It is a malady so grave and so permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is about to assume."28 The evidence may have proven that Fely committed acts that hurt and embarrassed respondent Crasus and the rest of the family. Her hot-temper, nagging, and extravagance; her abandonment of respondent Crasus; her marriage to an American; and even her flaunting of her American family and her American surname, may indeed be manifestations of her alleged incapacity to comply with her marital obligations; nonetheless, the root cause for such was not identified. If the root cause of the incapacity was not identified, then it cannot be satisfactorily established as a psychological or mental defect that is serious or grave; neither could it be proven to be in existence at the time of celebration of the marriage; nor that it is incurable. While the personal examination of Fely by a psychiatrist or psychologist is no longer mandatory for the declaration of nullity of their marriage under Article 36 of the Family Code of the Philippines, by virtue of this Courts ruling in Marcos v. Marcos,29 respondent Crasus must still have complied with the requirement laid down in Republic v. Court of Appeals and Molina30 that the root cause of the incapacity be identified as a psychological illness and that its incapacitating nature be fully explained. In any case, any doubt shall be resolved in favor of the validity of the marriage. 31 No less than the Constitution of 1987 sets the policy to protect and strengthen the family as the basic social institution and marriage as the foundation of the family. 32 II Article 26, paragraph 2 of the Family Code of the Philippines is not applicable to the case at bar. According to Article 26, paragraph 2 of the Family Code of the Philippines Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law. As it is worded, Article 26, paragraph 2, refers to a special situation wherein one of the couple getting married is a Filipino citizen and the other a foreigner at the time the marriage was celebrated. By its plain and literal interpretation, the said provision cannot be applied to the case of respondent Crasus and his wife Fely because at the time Fely obtained her divorce, she was still a Filipino citizen . Although the exact date was not established, Fely herself admitted in her Answer filed before the RTC that she obtained a divorce from respondent Crasus sometime after she left for the United States in 1984, after which she married her American husband in 1985. In the same Answer, she alleged that she had been an American citizen since 1988. At the time she filed for divorce, Fely was still a Filipino citizen, and pursuant to the nationality principle embodied in Article 15 of the Civil Code of the Philippines, she was still bound by Philippine laws on family rights and duties, status, condition, and legal capacity, even when she was already living abroad. Philippine laws, then and even until now, do not allow and recognize divorce between Filipino spouses. Thus, Fely could not have validly obtained a divorce from respondent Crasus.

III The Solicitor General is authorized to intervene, on behalf of the Republic, in proceedings for annulment and declaration of nullity of marriages. Invoking Article 48 of the Family Code of the Philippines, respondent Crasus argued that only the prosecuting attorney or fiscal assigned to the RTC may intervene on behalf of the State in proceedings for annulment or declaration of nullity of marriages; hence, the Office of the Solicitor General had no personality to file the instant Petition on behalf of the State. Article 48 provides ART. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed. That Article 48 does not expressly mention the Solicitor General does not bar him or his Office from intervening in proceedings for annulment or declaration of nullity of marriages. Executive Order No. 292, otherwise known as the Administrative Code of 1987, appoints the Solicitor General as the principal law officer and legal defender of the Government.33 His Office is tasked to represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of lawyers. The Office of the Solicitor General shall constitute the law office of the Government and, as such, shall discharge duties requiring the services of lawyers.34 The intent of Article 48 of the Family Code of the Philippines is to ensure that the interest of the State is represented and protected in proceedings for annulment and declaration of nullity of marriages by preventing collusion between the parties, or the fabrication or suppression of evidence; and, bearing in mind that the Solicitor General is the principal law officer and legal defender of the land, then his intervention in such proceedings could only serve and contribute to the realization of such intent, rather than thwart it. Furthermore, the general rule is that only the Solicitor General is authorized to bring or defend actions on behalf of the People or the Republic of the Philippines once the case is brought before this Court or the Court of Appeals.35 While it is the prosecuting attorney or fiscal who actively participates, on behalf of the State, in a proceeding for annulment or declaration of nullity of marriage before the RTC, the Office of the Solicitor General takes over when the case is elevated to the Court of Appeals or this Court. Since it shall be eventually responsible for taking the case to the appellate courts when circumstances demand, then it is only reasonable and practical that even while the proceeding is still being held before the RTC, the Office of the Solicitor General can already exercise supervision and control over the conduct of the prosecuting attorney or fiscal therein to better guarantee the protection of the interests of the State. In fact, this Court had already recognized and affirmed the role of the Solicitor General in several cases for annulment and declaration of nullity of marriages that were appealed before it, summarized as follows in the case of Ancheta v. Ancheta36 In the case of Republic v. Court of Appeals [268 SCRA 198 (1997)], this Court laid down the guidelines in the interpretation and application of Art. 48 of the Family Code, one of which concerns the role of the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the State: (8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed

submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095. [Id., at 213] This Court in the case of Malcampo-Sin v. Sin [355 SCRA 285 (2001)] reiterated its pronouncement in Republic v. Court of Appeals [Supra.] regarding the role of the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the State37 Finally, the issuance of this Court of the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages,38 which became effective on 15 March 2003, should dispel any other doubts of respondent Crasus as to the authority of the Solicitor General to file the instant Petition on behalf of the State. The Rule recognizes the authority of the Solicitor General to intervene and take part in the proceedings for annulment and declaration of nullity of marriages before the RTC and on appeal to higher courts. The pertinent provisions of the said Rule are reproduced below Sec. 5. Contents and form of petition. (4) It shall be filed in six copies. The petitioner shall serve a copy of the petition on the Office of the Solicitor General and the Office of the City or Provincial Prosecutor, within five days from the date of its filing and submit to the court proof of such service within the same period. Sec. 18. Memoranda. The court may require the parties and the public prosecutor, in consultation with the Office of the Solicitor General, to file their respective memoranda in support of their claims within fifteen days from the date the trial is terminated. It may require the Office of the Solicitor General to file its own memorandum if the case is of significant interest to the State. No other pleadings or papers may be submitted without leave of court. After the lapse of the period herein provided, the case will be considered submitted for decision, with or without the memoranda. Sec. 19. Decision. (2) The parties, including the Solicitor General and the public prosecutor, shall be served with copies of the decision personally or by registered mail. If the respondent summoned by publication failed to appear in the action, the dispositive part of the decision shall be published once in a newspaper of general circulation. (3) The decision becomes final upon the expiration of fifteen days from notice to the parties. Entry of judgment shall be made if no motion for reconsideration or new trial, or appeal is filed by any of the parties, the public prosecutor, or the Solicitor General. Sec. 20. Appeal. (2) Notice of Appeal. An aggrieved party or the Solicitor General may appeal from the decision by filing a Notice of Appeal within fifteen days from notice of denial of the motion for reconsideration or new trial. The appellant shall serve a copy of the notice of appeal on the adverse parties.

Given the foregoing, this Court arrives at a conclusion contrary to those of the RTC and the Court of Appeals, and sustains the validity and existence of the marriage between respondent Crasus and Fely. At most, Felys abandonment, sexual infidelity, and bigamy, give respondent Crasus grounds to file for legal separation under Article 55 of the Family Code of the Philippines, but not for declaration of nullity of marriage under Article 36 of the same Code. While this Court commiserates with respondent Crasus for being continuously shackled to what is now a hopeless and loveless marriage, this is one of those situations where neither law nor society can provide the specific answer to every individual problem. 39 WHEREFORE, the Petition is GRANTED and the assailed Decision of the Court of Appeals in CA-G.R. CV No. 62539, dated 30 July 2001, affirming the Judgment of the RTC of Cebu City, Branch 22, in Civil Case No. CEB-20077, dated 30 October 1998, is REVERSED and SET ASIDE. The marriage of respondent Crasus L. Iyoy and Fely Ada Rosal-Iyoy remains valid and subsisting. SO ORDERED. MINITA V. CHICO-NAZARIO Associate Justice

FIRST DIVISION G.R. No. L-68470 October 8, 1985 ALICE REYES VAN DORN, petitioner, vs. HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX, Regional Trial Court of the National Capital Region Pasay City and RICHARD UPTON respondents.

MELENCIO-HERRERA, J.:\

In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set aside the Orders, dated September 15, 1983 and August 3, 1984, in Civil Case No. 1075-P, issued by respondent Judge, which denied her Motion to Dismiss said case, and her Motion for Reconsideration of the Dismissal Order, respectively. The basic background facts are that petitioner is a citizen of the Philippines while private respondent is a citizen of the United States; that they were married in Hongkong in 1972; that, after the marriage, they established their residence in the Philippines; that they begot two children born on April 4, 1973 and December 18, 1975, respectively; that the parties were divorced in Nevada, United States, in 1982; and that petitioner has re-married also in Nevada, this time to Theodore Van Dorn. Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No. 1075-P of the Regional Trial Court, Branch CXV, in Pasay City, stating that petitioner's business in Ermita, Manila, (the Galleon Shop, for short), is conjugal property of the parties, and asking that petitioner be ordered to render an accounting of that business, and that private respondent be declared with right to manage the conjugal property. Petitioner moved to dismiss the case on the ground that the cause of action is barred by previous judgment in the divorce proceedings before the Nevada Court wherein respondent had acknowledged that he and petitioner had "no community property" as of June 11, 1982. The Court below denied the Motion to Dismiss in the mentioned case on the ground that the property involved is located in the Philippines so that the Divorce Decree has no bearing in the case. The denial is now the subject of this certiorari proceeding. Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not subject to appeal. certiorari and Prohibition are neither the remedies to question the propriety of an interlocutory order of the trial Court. However, when a grave abuse of discretion was patently committed, or the lower Court acted capriciously and whimsically, then it devolves upon this Court in a certiorari proceeding to exercise its supervisory authority and to correct the error committed which, in such a case, is equivalent to lack of jurisdiction. 1 Prohibition would then lie since it would be useless and a waste of time to go ahead with the proceedings. 2 Weconsider the petition filed in this case within the exception, and we have given it due course. For resolution is the effect of the foreign divorce on the parties and their alleged conjugal property in the Philippines. Petitioner contends that respondent is estopped from laying claim on the alleged conjugal property because of the representation he made in the divorce proceedings before the American Court that they had no community of property; that the Galleon Shop was not established through conjugal funds, and that respondent's claim is barred by prior judgment. For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot prevail over the prohibitive laws of the Philippines and its declared national policy; that the acts and declaration of a foreign Court cannot, especially if the same is contrary to public policy, divest Philippine Courts of jurisdiction to entertain matters within its jurisdiction. For the resolution of this case, it is not necessary to determine whether the property relations between petitioner and private respondent, after their marriage, were upon absolute or relative community property, upon complete separation of property, or upon any other regime. The pivotal fact in this case is the Nevada divorce of the parties. The Nevada District Court, which decreed the divorce, had obtained jurisdiction over petitioner who appeared in person before the Court during the trial of the case. It also obtained jurisdiction over private respondent who, giving his address as No. 381 Bush Street, San Francisco, California, authorized his attorneys in the divorce case, Karp & Gradt Ltd., to agree to the divorce on the ground of incompatibility in the understanding that there were neither community property nor community obligations. 3 As explicitly

stated in the Power of Attorney he executed in favor of the law firm of KARP & GRAD LTD., 336 W. Liberty, Reno, Nevada, to represent him in the divorce proceedings: xxx xxx xxx You are hereby authorized to accept service of Summons, to file an Answer, appear on my behalf and do an things necessary and proper to represent me, without further contesting, subject to the following: 1. That my spouse seeks a divorce on the ground of incompatibility. 2. That there is no community of property to be adjudicated by the Court. 3. 'I'hat there are no community obligations to be adjudicated by the court. xxx xxx xxx 4 There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The decree is binding on private respondent as an American citizen. For instance, private respondent cannot sue petitioner, as her husband, in any State of the Union. What he is contending in this case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to local law and public policy. It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, 5 only Philippine nationals are covered by the policy against absolute divorces the same being considered contrary to our concept of public police and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. 6 In this case, the divorce in Nevada released private respondent from the marriage from the standards of American law, under which divorce dissolves the marriage. As stated by the Federal Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799: The purpose and effect of a decree of divorce from the bond of matrimony by a court of competent jurisdiction are to change the existing status or domestic relation of husband and wife, and to free them both from the bond. The marriage tie when thus severed as to one party, ceases to bind either. A husband without a wife, or a wife without a husband, is unknown to the law. When the law provides, in the nature of a penalty. that the guilty party shall not marry again, that party, as well as the other, is still absolutely freed from the bond of the former marriage. Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioner's husband entitled to exercise control over conjugal assets. As he is bound by the Decision of his own country's Court, which validly exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own representation before said Court from asserting his right over the alleged conjugal property. To maintain, as private respondent does, that, under our laws, petitioner has to be considered still married to private respondent and still subject to a wife's obligations under Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be obliged to live together with, observe respect and fidelity, and render support to private respondent. The latter should not continue to be one of her heirs with possible rights to conjugal property. She should not be discriminated against in her own country if the ends of justice are to be served.

WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss the Complaint filed in Civil Case No. 1075-P of his Court. Without costs. SO ORDERED. Teehankee (Chairman), Plana, Relova, Gutierrez, Jr., De la Fuente and Patajo, JJ., concur.

SECOND DIVISION G.R. No. 80116 June 30, 1989 IMELDA MANALAYSAY PILAPIL, petitioner, vs. HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of the Regional Trial Court of Manila, Branch XXVI; HON. LUIS C. VICTOR, in his capacity as the City Fiscal of Manila; and ERICH EKKEHARD GEILING, respondents.

REGALADO, J.: An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute divorce, only to be followed by a criminal infidelity suit of the latter against the former, provides Us the opportunity to lay down a decisional rule on what hitherto appears to be an unresolved jurisdictional question. On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and private respondent Erich Ekkehard Geiling, a German national, were married before the Registrar of Births, Marriages and Deaths at Friedensweiler in the Federal Republic of Germany. The marriage started auspiciously enough, and the couple lived together for some time in Malate, Manila where their only child, Isabella Pilapil Geiling, was born on April 20, 1980. 1 Thereafter, marital discord set in, with mutual recriminations between the spouses, followed by a separation de facto between them. After about three and a half years of marriage, such connubial disharmony eventuated in private respondent initiating a divorce proceeding against petitioner in Germany before the Schoneberg Local

Court in January, 1983. He claimed that there was failure of their marriage and that they had been living apart since April, 1982. 2 Petitioner, on the other hand, filed an action for legal separation, support and separation of property before the Regional Trial Court of Manila, Branch XXXII, on January 23, 1983 where the same is still pending as Civil Case No. 83-15866. 3 On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of Germany, promulgated a decree of divorce on the ground of failure of marriage of the spouses. The custody of the child was granted to petitioner. The records show that under German law said court was locally and internationally competent for the divorce proceeding and that the dissolution of said marriage was legally founded on and authorized by the applicable law of that foreign jurisdiction. 4 On June 27, 1986, or more than five months after the issuance of the divorce decree, private respondent filed two complaints for adultery before the City Fiscal of Manila alleging that, while still married to said respondent, petitioner "had an affair with a certain William Chia as early as 1982 and with yet another man named Jesus Chua sometime in 1983". Assistant Fiscal Jacinto A. de los Reyes, Jr., after the corresponding investigation, recommended the dismissal of the cases on the ground of insufficiency of evidence. 5 However, upon review, the respondent city fiscal approved a resolution, dated January 8, 1986, directing the filing of two complaints for adultery against the petitioner. 6 The complaints were accordingly filed and were eventually raffled to two branches of the Regional Trial Court of Manila. The case entitled "People of the Philippines vs. Imelda Pilapil and William Chia", docketed as Criminal Case No. 87-52435, was assigned to Branch XXVI presided by the respondent judge; while the other case, "People of the Philippines vs. Imelda Pilapil and James Chua" , docketed as Criminal Case No. 8752434 went to the sala of Judge Leonardo Cruz, Branch XXV, of the same court. 7 On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that the aforesaid resolution of respondent fiscal be set aside and the cases against her be dismissed. 8 A similar petition was filed by James Chua, her co-accused in Criminal Case No. 87-52434. The Secretary of Justice, through the Chief State Prosecutor, gave due course to both petitions and directed the respondent city fiscal to inform the Department of Justice "if the accused have already been arraigned and if not yet arraigned, to move to defer further proceedings" and to elevate the entire records of both cases to his office for review. 9 Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and to suspend further proceedings thereon. 10 As a consequence, Judge Leonardo Cruz suspended proceedings in Criminal Case No. 87-52434. On the other hand, respondent judge merely reset the date of the arraignment in Criminal Case No. 87-52435 to April 6, 1987. Before such scheduled date, petitioner moved for the cancellation of the arraignment and for the suspension of proceedings in said Criminal Case No. 8752435 until after the resolution of the petition for review then pending before the Secretary of Justice. 11 A motion to quash was also filed in the same case on the ground of lack of jurisdiction, 12 which motion was denied by the respondent judge in an order dated September 8, 1987. The same order also directed the arraignment of both accused therein, that is, petitioner and William Chia. The latter entered a plea of not guilty while the petitioner refused to be arraigned. Such refusal of the petitioner being considered by respondent judge as direct contempt, she and her counsel were fined and the former was ordered detained until she submitted herself for arraignment. 13 Later, private respondent entered a plea of not guilty. 14 On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition, with a prayer for a temporary restraining order, seeking the annulment of the order of the lower court denying her motion to quash. The petition is anchored on the main ground that the court is without jurisdiction "to try and decide the charge of adultery, which is a private offense that cannot be prosecuted de officio (sic), since the purported complainant, a foreigner, does not qualify as an offended spouse having obtained a final divorce decree under his national law prior to his filing the criminal complaint." 15

On October 21, 1987, this Court issued a temporary restraining order enjoining the respondents from implementing the aforesaid order of September 8, 1987 and from further proceeding with Criminal Case No. 87-52435. Subsequently, on March 23, 1988 Secretary of Justice Sedfrey A. Ordoez acted on the aforesaid petitions for review and, upholding petitioner's ratiocinations, issued a resolution directing the respondent city fiscal to move for the dismissal of the complaints against the petitioner. 16 We find this petition meritorious. The writs prayed for shall accordingly issue. Under Article 344 of the Revised Penal Code, 17 the crime of adultery, as well as four other crimes against chastity, cannot be prosecuted except upon a sworn written complaint filed by the offended spouse. It has long since been established, with unwavering consistency, that compliance with this rule is a jurisdictional, and not merely a formal, requirement. 18 While in point of strict law the jurisdiction of the court over the offense is vested in it by the Judiciary Law, the requirement for a sworn written complaint is just as jurisdictional a mandate since it is that complaint which starts the prosecutory proceeding 19 and without which the court cannot exercise its jurisdiction to try the case. Now, the law specifically provides that in prosecutions for adultery and concubinage the person who can legally file the complaint should be the offended spouse, and nobody else. Unlike the offenses of seduction, abduction, rape and acts of lasciviousness, no provision is made for the prosecution of the crimes of adultery and concubinage by the parents, grandparents or guardian of the offended party. The so-called exclusive and successive rule in the prosecution of the first four offenses above mentioned do not apply to adultery and concubinage. It is significant that while the State, as parens patriae, was added and vested by the 1985 Rules of Criminal Procedure with the power to initiate the criminal action for a deceased or incapacitated victim in the aforesaid offenses of seduction, abduction, rape and acts of lasciviousness, in default of her parents, grandparents or guardian, such amendment did not include the crimes of adultery and concubinage. In other words, only the offended spouse, and no other, is authorized by law to initiate the action therefor. Corollary to such exclusive grant of power to the offended spouse to institute the action, it necessarily follows that such initiator must have the status, capacity or legal representation to do so at the time of the filing of the criminal action. This is a familiar and express rule in civil actions; in fact, lack of legal capacity to sue, as a ground for a motion to dismiss in civil cases, is determined as of the filing of the complaint or petition. The absence of an equivalent explicit rule in the prosecution of criminal cases does not mean that the same requirement and rationale would not apply. Understandably, it may not have been found necessary since criminal actions are generally and fundamentally commenced by the State, through the People of the Philippines, the offended party being merely the complaining witness therein. However, in the socalled "private crimes" or those which cannot be prosecuted de oficio, and the present prosecution for adultery is of such genre, the offended spouse assumes a more predominant role since the right to commence the action, or to refrain therefrom, is a matter exclusively within his power and option. This policy was adopted out of consideration for the aggrieved party who might prefer to suffer the outrage in silence rather than go through the scandal of a public trial. 20 Hence, as cogently argued by petitioner, Article 344 of the Revised Penal Code thus presupposes that the marital relationship is still subsisting at the time of the institution of the criminal action for, adultery. This is a logical consequence since the raison d'etre of said provision of law would be absent where the supposed offended party had ceased to be the spouse of the alleged offender at the time of the filing of the criminal case. 21 In these cases, therefore, it is indispensable that the status and capacity of the complainant to commence the action be definitely established and, as already demonstrated, such status or capacity must indubitably exist as of the time he initiates the action. It would be absurd if his capacity to bring the action would be determined by his status before or subsequent to the commencement thereof, where such capacity or status existed prior to but ceased before, or was acquired subsequent to but did not exist at

the time of, the institution of the case. We would thereby have the anomalous spectacle of a party bringing suit at the very time when he is without the legal capacity to do so. To repeat, there does not appear to be any local precedential jurisprudence on the specific issue as to when precisely the status of a complainant as an offended spouse must exist where a criminal prosecution can be commenced only by one who in law can be categorized as possessed of such status. Stated differently and with reference to the present case, the inquiry ;would be whether it is necessary in the commencement of a criminal action for adultery that the marital bonds between the complainant and the accused be unsevered and existing at the time of the institution of the action by the former against the latter. American jurisprudence, on cases involving statutes in that jurisdiction which are in pari materia with ours, yields the rule that after a divorce has been decreed, the innocent spouse no longer has the right to institute proceedings against the offenders where the statute provides that the innocent spouse shall have the exclusive right to institute a prosecution for adultery. Where, however, proceedings have been properly commenced, a divorce subsequently granted can have no legal effect on the prosecution of the criminal proceedings to a conclusion. 22 In the cited Loftus case, the Supreme Court of Iowa held that 'No prosecution for adultery can be commenced except on the complaint of the husband or wife.' Section 4932, Code. Though Loftus was husband of defendant when the offense is said to have been committed, he had ceased to be such when the prosecution was begun; and appellant insists that his status was not such as to entitle him to make the complaint. We have repeatedly said that the offense is against the unoffending spouse, as well as the state, in explaining the reason for this provision in the statute; and we are of the opinion that the unoffending spouse must be such when the prosecution is commenced. (Emphasis supplied.) We see no reason why the same doctrinal rule should not apply in this case and in our jurisdiction, considering our statutory law and jural policy on the matter. We are convinced that in cases of such nature, the status of the complainant vis-a-vis the accused must be determined as of the time the complaint was filed. Thus, the person who initiates the adultery case must be an offended spouse, and by this is meant that he is still married to the accused spouse, at the time of the filing of the complaint. In the present case, the fact that private respondent obtained a valid divorce in his country, the Federal Republic of Germany, is admitted. Said divorce and its legal effects may be recognized in the Philippines insofar as private respondent is concerned 23 in view of the nationality principle in our civil law on the matter of status of persons. Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a divorce was granted by a United States court between Alice Van Dornja Filipina, and her American husband, the latter filed a civil case in a trial court here alleging that her business concern was conjugal property and praying that she be ordered to render an accounting and that the plaintiff be granted the right to manage the business. Rejecting his pretensions, this Court perspicuously demonstrated the error of such stance, thus: There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The decree is binding on private respondent as an American citizen. For instance, private respondent cannot sue petitioner, as her husband, in any State of the Union. ... It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces the same being considered contrary to our concept of public policy and morality. However, aliens

may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. ... Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioner's husband entitled to exercise control over conjugal assets. ... 25 Under the same considerations and rationale, private respondent, being no longer the husband of petitioner, had no legal standing to commence the adultery case under the imposture that he was the offended spouse at the time he filed suit. The allegation of private respondent that he could not have brought this case before the decree of divorce for lack of knowledge, even if true, is of no legal significance or consequence in this case. When said respondent initiated the divorce proceeding, he obviously knew that there would no longer be a family nor marriage vows to protect once a dissolution of the marriage is decreed. Neither would there be a danger of introducing spurious heirs into the family, which is said to be one of the reasons for the particular formulation of our law on adultery, 26 since there would thenceforth be no spousal relationship to speak of. The severance of the marital bond had the effect of dissociating the former spouses from each other, hence the actuations of one would not affect or cast obloquy on the other. The aforecited case of United States vs. Mata cannot be successfully relied upon by private respondent. In applying Article 433 of the old Penal Code, substantially the same as Article 333 of the Revised Penal Code, which punished adultery "although the marriage be afterwards declared void", the Court merely stated that "the lawmakers intended to declare adulterous the infidelity of a married woman to her marital vows, even though it should be made to appear that she is entitled to have her marriage contract declared null and void, until and unless she actually secures a formal judicial declaration to that effect". Definitely, it cannot be logically inferred therefrom that the complaint can still be filed after the declaration of nullity because such declaration that the marriage is void ab initio is equivalent to stating that it never existed. There being no marriage from the beginning, any complaint for adultery filed after said declaration of nullity would no longer have a leg to stand on. Moreover, what was consequently contemplated and within the purview of the decision in said case is the situation where the criminal action for adultery was filed before the termination of the marriage by a judicial declaration of its nullity ab initio. The same rule and requisite would necessarily apply where the termination of the marriage was effected, as in this case, by a valid foreign divorce. Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore cited, 27 must suffer the same fate of inapplicability. A cursory reading of said case reveals that the offended spouse therein had duly and seasonably filed a complaint for adultery, although an issue was raised as to its sufficiency but which was resolved in favor of the complainant. Said case did not involve a factual situation akin to the one at bar or any issue determinative of the controversy herein. WHEREFORE, the questioned order denying petitioner's motion to quash is SET ASIDE and another one enteredDISMISSING the complaint in Criminal Case No. 87-52435 for lack of jurisdiction. The temporary restraining order issued in this case on October 21, 1987 is hereby made permanent. SO ORDERED. Melencio-Herrera, Padilla and Sarmiento, JJ., concur.

Separate Opinions

PARAS, J., concurring: It is my considered opinion that regardless of whether We consider the German absolute divorce as valid also in the Philippines, the fact is that the husband in the instant case, by the very act of his obtaining an absolute divorce in Germany can no longer be considered as the offended party in case his former wife actually has carnal knowledge with another, because in divorcing her, he already implicitly authorized the woman to have sexual relations with others. A contrary ruling would be less than fair for a man, who is free to have sex will be allowed to deprive the woman of the same privilege. In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the absolute divorce between the American husband and his American wife as valid and binding in the Philippines on the theory that their status and capacity are governed by their National law, namely, American law. There is no decision yet of the Supreme Court regarding the validity of such a divorce if one of the parties, say an American, is married to a Filipino wife, for then two (2) different nationalities would be involved. In the book of Senate President Jovito Salonga entitled Private International Law and precisely because of theNational law doctrine, he considers the absolute divorce as valid insofar as the American husband is concerned but void insofar as the Filipino wife is involved. This results in what he calls a "socially grotesque situation," where a Filipino woman is still married to a man who is no longer her husband. It is the opinion however, of the undersigned that very likely the opposite expresses the correct view. While under the national law of the husband the absolute divorce will be valid, still one of the exceptions to the application of the proper foreign law (one of the exceptions to comity) is when the foreign law will work an injustice or injury to the people or residents of the forum. Consequently since to recognize the absolute divorce as valid on the part of the husband would be injurious or prejudicial to the Filipino wife whose marriage would be still valid under her national law, it would seem that under our law existing before the new Family Code (which took effect on August 3, 1988) the divorce should be considered void both with respect to the American husband and the Filipino wife. The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the fact that the husband was an American can with a Filipino wife because in said case the validity of the divorce insofar as the Filipino wife is concerned was NEVER put in issue.

Separate Opinions PARAS, J., concurring: It is my considered opinion that regardless of whether We consider the German absolute divorce as valid also in the Philippines, the fact is that the husband in the instant case, by the very act of his obtaining an absolute divorce in Germany can no longer be considered as the offended party in case his former wife actually has carnal knowledge with another, because in divorcing her, he already implicitly authorized the woman to have sexual relations with others. A contrary ruling would be less than fair for a man, who is free to have sex will be allowed to deprive the woman of the same privilege. In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the absolute divorce between the American husband and his American wife as valid and binding in the Philippines on the theory that their status and capacity are governed by their National law, namely, American law. There is

no decision yet of the Supreme Court regarding the validity of such a divorce if one of the parties, say an American, is married to a Filipino wife, for then two (2) different nationalities would be involved. In the book of Senate President Jovito Salonga entitled Private International Law and precisely because of theNational law doctrine, he considers the absolute divorce as valid insofar as the American husband is concerned but void insofar as the Filipino wife is involved. This results in what he calls a "socially grotesque situation," where a Filipino woman is still married to a man who is no longer her husband. It is the opinion however, of the undersigned that very likely the opposite expresses the correct view. While under the national law of the husband the absolute divorce will be valid, still one of the exceptions to the application of the proper foreign law (one of the exceptions to comity) is when the foreign law will work an injustice or injury to the people or residents of the forum. Consequently since to recognize the absolute divorce as valid on the part of the husband would be injurious or prejudicial to the Filipino wife whose marriage would be still valid under her national law, it would seem that under our law existing before the new Family Code (which took effect on August 3, 1988) the divorce should be considered void both with respect to the American husband and the Filipino wife. The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the fact that the husband was an American can with a Filipino wife because in said case the validity of the divorce insofar as the Filipino wife is concerned was NEVER put in issue.

SECOND DIVISION

G.R. No. 124862 December 22, 1998

FE D. QUITA, petitioner, vs. COURT OF APPEALS and BLANDINA DANDAN, * respondents.

BELLOSILLO, J.: FE D. QUITA and Arturo T. Padlan, both Filipinos, were married in the Philippines on 18 May 1941. They were not however blessed with children. Somewhere along the way their relationship soured. Eventually Fe sued Arturo for divorce in San Francisco, California, U.S.A. She submitted in the divorce proceedings a private writing dated 19 July 1950 evidencing their agreement to live separately from each other and a settlement of their conjugal properties. On 23 July 1954 she obtained a final judgment of divorce. Three (3) weeks thereafter she married a certain Felix Tupaz in the same locality but their relationship also ended in a divorce. Still in the U.S.A., she married for the third time, to a certain Wernimont. On 16 April 1972 Arturo died. He left no will. On 31 August 1972 Lino Javier Inciong filed a petition with the Regional Trial Court of Quezon City for issuance of letters of administration concerning the estate of Arturo in favor of the Philippine Trust Company. Respondent Blandina Dandan (also referred to as Blandina Padlan), claiming to be the surviving spouse of Arturo Padlan, and Claro, Alexis, Ricardo, Emmanuel, Zenaida and Yolanda, all surnamed Padlan, named in the children of Arturo Padlan opposed the petition and prayed for the appointment instead of Atty. Leonardo Casaba, which was resolved in favor of the latter. Upon motion of the oppositors themselves, Atty. Cabasal was later replaced by Higino Castillon. On 30 April 1973 the oppositors (Blandina and Padlan children) submitted certified photocopies of the 19 July 1950 private writing and the final judgment of divorce between petitioner and Arturo. Later Ruperto T. Padlan, claiming to be the sole surviving brother of the deceased Arturo, intervened. On 7 October 1987 petitioner moved for the immediate declaration of heirs of the decedent and the distribution of his estate. At the scheduled hearing on 23 October 1987, private respondent as well as the six (6) Padlan children and Ruperto failed to appear despite due notice. On the same day, the trial court required the submission of the records of birth of the Padlan children within ten (10) days from receipt thereof, after which, with or without the documents, the issue on the declaration of heirs would be considered submitted for resolution. The prescribed period lapsed without the required documents being submitted. The trial court invoking Tenchavez v. Escao 1 which held that "a foreign divorce between Filipino citizens sought and decreed after the effectivity of the present Civil Code (Rep. Act 386) was not entitled to recognition as valid in this jurisdiction," 2 disregarded the divorce between petitioner and Arturo. Consecuently, it expressed the view that their marriage subsisted until the death of Arturo in 1972. Neither did it consider valid their extrajudicial settlement of conjugal properties due to lack of judicial approval. 3 On the other hand, it opined that there was no showing that marriage existed between private respondent and Arturo, much less was it shown that the alleged Padlan children had been acknowledged by the deceased as his children with her. As regards Ruperto, it found that he was a brother of Arturo. On 27 November 1987 4 only petitioner and Ruperto were declared the intestate heirs of Arturo. Accordingly, equal adjudication of the net hereditary estate was ordered in favor of the two intestate heirs.5 On motion for reconsideration, Blandina and the Padlan children were allowed to present proofs that the recognition of the children by the deceased as his legitimate children, except Alexis who was recognized as his illegitimate child, had been made in their respective records of birth. Thus on 15

February 1988 6 partial reconsideration was granted declaring the Padlan children, with the exception of Alexis, entitled to one-half of the estate to the exclusion of Ruperto Padlan, and petitioner to the other half. 7 Private respondent was not declared an heir. Although it was stated in the aforementioned records of birth that she and Arturo were married on 22 April 1947, their marriage was clearly void since it was celebrated during the existence of his previous marriage to petitioner. In their appeal to the Court of Appeals, Blandina and her children assigned as one of the errors allegedly committed by the trial court the circumstance that the case was decided without a hearing, in violation of Sec. 1, Rule 90, of the Rules of Court, which provides that if there is a controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases. Respondent appellate court found this ground alone sufficient to sustain the appeal; hence, on 11 September 1995 it declared null and void the 27 November 1987 decision and 15 February 1988 order of the trial court, and directed the remand of the case to the trial court for further proceedings. 8 On 18 April 1996 it denied reconsideration. 9 Should this case be remanded to the lower court for further proceedings? Petitioner insists that there is no need because, first, no legal or factual issue obtains for resolution either as to the heirship of the Padlan children or as to the decedent; and, second, the issue as to who between petitioner and private respondent is the proper hier of the decedent is one of law which can be resolved in the present petition based on establish facts and admissions of the parties. We cannot sustain petitioner. The provision relied upon by respondent court is clear: If there is a controversybefore the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases. We agree with petitioner that no dispute exists either as to the right of the six (6) Padlan children to inherit from the decedent because there are proofs that they have been duly acknowledged by him and petitioner herself even recognizes them as heirs of Arturo Padlan; 10 nor as to their respective hereditary shares. But controversy remains as to who is the legitimate surviving spouse of Arturo. The trial court, after the parties other than petitioner failed to appear during the scheduled hearing on 23 October 1987 of the motion for immediate declaration of heirs and distribution of estate, simply issued an order requiring the submission of the records of birth of the Padlan children within ten (10) days from receipt thereof, after which, with or without the documents, the issue on declaration of heirs would be deemed submitted for resolution. We note that in her comment to petitioner's motion private respondent raised, among others, the issue as to whether petitioner was still entitled to inherit from the decedent considering that she had secured a divorce in the U.S.A. and in fact had twice remarried. She also invoked the above quoted procedural rule. 11 To this, petitioner replied that Arturo was a Filipino and as such remained legally married to her in spite of the divorce they obtained. 12 Reading between the lines, the implication is that petitioner was no longer a Filipino citizen at the time of her divorce from Arturo. This should have prompted the trial court to conduct a hearing to establish her citizenship. The purpose of a hearing is to ascertain the truth of the matters in issue with the aid of documentary and testimonial evidence as well as the arguments of the parties either supporting or opposing the evidence. Instead, the lower court perfunctorily settled her claim in her favor by merely applying the ruling in Tenchavez v. Escao.

Then in private respondent's motion to set aside and/or reconsider the lower court's decision she stressed that the citizenship of petitioner was relevant in the light of the ruling in Van Dorn v. Romillo Jr. 13 that aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. She prayed therefore that the case be set for hearing. 14 Petitioner opposed the motion but failed to squarely address the issue on her citizenship. 15 The trial court did not grant private respondent's prayer for a hearing but proceeded to resolve her motion with the finding that both petitioner and Arturo were "Filipino citizens and were married in the Philippines." 16 It maintained that their divorce obtained in 1954 in San Francisco, California, U.S.A., was not valid in Philippine jurisdiction. We deduce that the finding on their citizenship pertained solely to the time of their marriage as the trial court was not supplied with a basis to determine petitioner's citizenship at the time of their divorce. The doubt persisted as to whether she was still a Filipino citizen when their divorce was decreed. The trial court must have overlooked the materiality of this aspect. Once proved that she was no longer a Filipino citizen at the time of their divorce, Van Dorn would become applicable and petitioner could very well lose her right to inherit from Arturo. Respondent again raised in her appeal the issue on petitioner's citizenship; 17 it did not merit enlightenment however from petitioner. 18 In the present proceeding, petitioner's citizenship is brought anew to the fore by private respondent. She even furnishes the Court with the transcript of stenographic notes taken on 5 May 1995 during the hearing for the reconstitution of the original of a certain transfer certificate title as well as the issuance of new owner's duplicate copy thereof before another trial court. When asked whether she was an American citizen petitioner answered that she was since 1954. 19 Significantly, the decree of divorce of petitioner and Arturo was obtained in the same year. Petitioner however did not bother to file a reply memorandum to erase the uncertainty about her citizenship at the time of their divorce, a factual issue requiring hearings to be conducted by the trial court. Consequently, respondent appellate court did not err in ordering the case returned to the trial court for further proceedings. We emphasize however that the question to be determined by the trial court should be limited only to the right of petitioner to inherit from Arturo as his surviving spouse. Private respondent's claim to heirship was already resolved by the trial court. She and Arturo were married on 22 April 1947 while the prior marriage of petitioner and Arturo was subsisting thereby resulting in a bigamous marriage considered void from the beginning under Arts. 80 and 83 of the Civil Code. Consequently, she is not a surviving spouse that can inherit from him as this status presupposes a legitimate relationship. 20 As regards the motion of private respondent for petitioner and a her counsel to be declared in contempt of court and that the present petition be dismissed for forum shopping, 21 the same lacks merit. For forum shopping to exist the actions must involve the same transactions and same essential facts and circumstances. There must also be identical causes of action, subject matter and issue. 22 The present petition deals with declaration of heirship while the subsequent petitions filed before the three (3) trial courts concern the issuance of new owner's duplicate copies of titles of certain properties belonging to the estate of Arturo. Obviously, there is no reason to declare the existence of forum shopping. WHEREFORE, the petition is DENIED. The decision of respondent Court of Appeals ordering the remand of the case to the court of origin for further proceedings and declaring null and void its decision holding petitioner Fe D. Quita and Ruperto T. Padlan as intestate heirs is AFFIRMED. The order of the appellate court modifying its previous decision by granting one-half (1/2) of the net hereditary estate to the Padlan children, namely, Claro, Ricardo, Emmanuel, Zenaida and Yolanda, with the exception of Alexis, all surnamed Padlan, instead of Arturo's brother Ruperto Padlan, is

likewise AFFIRMED. The Court however emphasizes that the reception of evidence by the trial court should he limited to the hereditary rights of petitioner as the surviving spouse of Arturo Padlan . The motion to declare petitioner and her counsel in contempt of court and to dismiss the present petition for forum shopping is DENIED. SO ORDERED. Puno, Mendoza and Martinez, JJ., concur. THIRD DIVISION G.R. No. 133743 February 6, 2007

EDGAR SAN LUIS, Petitioner, vs. FELICIDAD SAN LUIS, Respondent. x ---------------------------------------------------- x G.R. No. 134029 February 6, 2007

RODOLFO SAN LUIS, Petitioner, vs. FELICIDAD SAGALONGOS alias FELICIDAD SAN LUIS, Respondent. DECISION YNARES-SANTIAGO, J.: Before us are consolidated petitions for review assailing the February 4, 1998 Decision 1 of the Court of Appeals in CA-G.R. CV No. 52647, which reversed and set aside the September 12, 1995 2 and January 31, 1996 3Resolutions of the Regional Trial Court of Makati City, Branch 134 in SP. Proc. No. M-3708; and its May 15, 1998 Resolution 4 denying petitioners motion for reconsideration. The instant case involves the settlement of the estate of Felicisimo T. San Luis (Felicisimo), who was the former governor of the Province of Laguna. During his lifetime, Felicisimo contracted three marriages. His first marriage was with Virginia Sulit on March 17, 1942 out of which were born six children, namely: Rodolfo, Mila, Edgar, Linda, Emilita and Manuel. On August 11, 1963, Virginia predeceased Felicisimo. Five years later, on May 1, 1968, Felicisimo married Merry Lee Corwin, with whom he had a son, Tobias. However, on October 15, 1971, Merry Lee, an American citizen, filed a Complaint for Divorce 5 before the Family Court of the First Circuit, State of Hawaii, United States of America (U.S.A.), which issued a Decree Granting Absolute Divorce and Awarding Child Custody on December 14, 1973. 6 On June 20, 1974, Felicisimo married respondent Felicidad San Luis, then surnamed Sagalongos, before Rev. Fr. William Meyer, Minister of the United Presbyterian at Wilshire Boulevard, Los Angeles, California, U.S.A. 7 He had no children with respondent but lived with her for 18 years from the time of their marriage up to his death on December 18, 1992.

Thereafter, respondent sought the dissolution of their conjugal partnership assets and the settlement of Felicisimos estate. On December 17, 1993, she filed a petition for letters of administration 8 before the Regional Trial Court of Makati City, docketed as SP. Proc. No. M-3708 which was raffled to Branch 146 thereof. Respondent alleged that she is the widow of Felicisimo; that, at the time of his death, the decedent was residing at 100 San Juanico Street, New Alabang Village, Alabang, Metro Manila; that the decedents surviving heirs are respondent as legal spouse, his six children by his first marriage, and son by his second marriage; that the decedent left real properties, both conjugal and exclusive, valued at P30,304,178.00 more or less; that the decedent does not have any unpaid debts. Respondent prayed that the conjugal partnership assets be liquidated and that letters of administration be issued to her. On February 4, 1994, petitioner Rodolfo San Luis, one of the children of Felicisimo by his first marriage, filed a motion to dismiss 9 on the grounds of improper venue and failure to state a cause of action. Rodolfo claimed that the petition for letters of administration should have been filed in the Province of Laguna because this was Felicisimos place of residence prior to his death. He further claimed that respondent has no legal personality to file the petition because she was only a mistress of Felicisimo since the latter, at the time of his death, was still legally married to Merry Lee. On February 15, 1994, Linda invoked the same grounds and joined her brother Rodolfo in seeking the dismissal10 of the petition. On February 28, 1994, the trial court issued an Order 11 denying the two motions to dismiss. Unaware of the denial of the motions to dismiss, respondent filed on March 5, 1994 her opposition 12 thereto. She submitted documentary evidence showing that while Felicisimo exercised the powers of his public office in Laguna, he regularly went home to their house in New Alabang Village, Alabang, Metro Manila which they bought sometime in 1982. Further, she presented the decree of absolute divorce issued by the Family Court of the First Circuit, State of Hawaii to prove that the marriage of Felicisimo to Merry Lee had already been dissolved. Thus, she claimed that Felicisimo had the legal capacity to marry her by virtue of paragraph 2, 13 Article 26 of the Family Code and the doctrine laid down in Van Dorn v. Romillo, Jr. 14 Thereafter, Linda, Rodolfo and herein petitioner Edgar San Luis, separately filed motions for reconsideration from the Order denying their motions to dismiss. 15 They asserted that paragraph 2, Article 26 of the Family Code cannot be given retroactive effect to validate respondents bigamous marriage with Felicisimo because this would impair vested rights in derogation of Article 256 16 of the Family Code. On April 21, 1994, Mila, another daughter of Felicisimo from his first marriage, filed a motion to disqualify Acting Presiding Judge Anthony E. Santos from hearing the case. On October 24, 1994, the trial court issued an Order 17 denying the motions for reconsideration. It ruled that respondent, as widow of the decedent, possessed the legal standing to file the petition and that venue was properly laid. Meanwhile, the motion for disqualification was deemed moot and academic 18 because then Acting Presiding Judge Santos was substituted by Judge Salvador S. Tensuan pending the resolution of said motion. Mila filed a motion for inhibition 19 against Judge Tensuan on November 16, 1994. On even date, Edgar also filed a motion for reconsideration 20 from the Order denying their motion for reconsideration arguing that it does not state the facts and law on which it was based.

On November 25, 1994, Judge Tensuan issued an Order 21 granting the motion for inhibition. The case was re-raffled to Branch 134 presided by Judge Paul T. Arcangel. On April 24, 1995, 22 the trial court required the parties to submit their respective position papers on the twin issues of venue and legal capacity of respondent to file the petition. On May 5, 1995, Edgar manifested 23 that he is adopting the arguments and evidence set forth in his previous motion for reconsideration as his position paper. Respondent and Rodolfo filed their position papers on June 14, 24 and June 20, 25 1995, respectively. On September 12, 1995, the trial court dismissed the petition for letters of administration. It held that, at the time of his death, Felicisimo was the duly elected governor and a resident of the Province of Laguna. Hence, the petition should have been filed in Sta. Cruz, Laguna and not in Makati City. It also ruled that respondent was without legal capacity to file the petition for letters of administration because her marriage with Felicisimo was bigamous, thus, void ab initio. It found that the decree of absolute divorce dissolving Felicisimos marriage to Merry Lee was not valid in the Philippines and did not bind Felicisimo who was a Filipino citizen. It also ruled that paragraph 2, Article 26 of the Family Code cannot be retroactively applied because it would impair the vested rights of Felicisimos legitimate children. Respondent moved for reconsideration 26 and for the disqualification motions were denied. 28
27

of Judge Arcangel but said

Respondent appealed to the Court of Appeals which reversed and set aside the orders of the trial court in its assailed Decision dated February 4, 1998, the dispositive portion of which states: WHEREFORE, the Orders dated September 12, 1995 and January 31, 1996 are hereby REVERSED and SET ASIDE; the Orders dated February 28 and October 24, 1994 are REINSTATED; and the records of the case is REMANDED to the trial court for further proceedings. 29 The appellante court ruled that under Section 1, Rule 73 of the Rules of Court, the term "place of residence" of the decedent, for purposes of fixing the venue of the settlement of his estate, refers to the personal, actual or physical habitation, or actual residence or place of abode of a person as distinguished from legal residence or domicile. It noted that although Felicisimo discharged his functions as governor in Laguna, he actually resided in Alabang, Muntinlupa. Thus, the petition for letters of administration was properly filed in Makati City. The Court of Appeals also held that Felicisimo had legal capacity to marry respondent by virtue of paragraph 2, Article 26 of the Family Code and the rulings in Van Dorn v. Romillo, Jr. 30 and Pilapil v. Ibay-Somera. 31 It found that the marriage between Felicisimo and Merry Lee was validly dissolved by virtue of the decree of absolute divorce issued by the Family Court of the First Circuit, State of Hawaii. As a result, under paragraph 2, Article 26, Felicisimo was capacitated to contract a subsequent marriage with respondent. Thus With the well-known rule express mandate of paragraph 2, Article 26, of the Family Code of the Philippines, the doctrines in Van Dorn, Pilapil, and the reason and philosophy behind the enactment of E.O. No. 227, there is no justiciable reason to sustain the individual view sweeping statement of Judge Arc[h]angel, that "Article 26, par. 2 of the Family Code, contravenes the basic policy of our state against divorce in any form whatsoever." Indeed, courts cannot deny what the law grants. All that the courts should do is to give force and effect to the express mandate of the law. The foreign divorce having been obtained by the Foreigner on December 14, 1992,32 the Filipino

divorcee, "shall x x x have capacity to remarry under Philippine laws". For this reason, the marriage between the deceased and petitioner should not be denominated as "a bigamous marriage. Therefore, under Article 130 of the Family Code, the petitioner as the surviving spouse can institute the judicial proceeding for the settlement of the estate of the deceased. x x x 33 Edgar, Linda, and Rodolfo filed separate motions for reconsideration Court of Appeals.
34

which were denied by the

On July 2, 1998, Edgar appealed to this Court via the instant petition for review on certiorari. 35 Rodolfo later filed a manifestation and motion to adopt the said petition which was granted. 36 In the instant consolidated petitions, Edgar and Rodolfo insist that the venue of the subject petition for letters of administration was improperly laid because at the time of his death, Felicisimo was a resident of Sta. Cruz, Laguna. They contend that pursuant to our rulings in Nuval v. Guray 37 and Romualdez v. RTC, Br. 7, Tacloban City, 38 "residence" is synonymous with "domicile" which denotes a fixed permanent residence to which when absent, one intends to return. They claim that a person can only have one domicile at any given time. Since Felicisimo never changed his domicile, the petition for letters of administration should have been filed in Sta. Cruz, Laguna. Petitioners also contend that respondents marriage to Felicisimo was void and bigamous because it was performed during the subsistence of the latters marriage to Merry Lee. They argue that paragraph 2, Article 26 cannot be retroactively applied because it would impair vested rights and ratify the void bigamous marriage. As such, respondent cannot be considered the surviving wife of Felicisimo; hence, she has no legal capacity to file the petition for letters of administration. The issues for resolution: (1) whether venue was properly laid, and (2) whether respondent has legal capacity to file the subject petition for letters of administration. The petition lacks merit. Under Section 1, 39 Rule 73 of the Rules of Court, the petition for letters of administration of the estate of Felicisimo should be filed in the Regional Trial Court of the province "in which he resides at the time of his death." In the case of Garcia Fule v. Court of Appeals, 40 we laid down the doctrinal rule for determining the residence as contradistinguished from domicile of the decedent for purposes of fixing the venue of the settlement of his estate: [T]he term "resides" connotes ex vi termini "actual residence" as distinguished from "legal residence or domicile." This term "resides," like the terms "residing" and "residence," is elastic and should be interpreted in the light of the object or purpose of the statute or rule in which it is employed. In the application of venue statutes and rules Section 1, Rule 73 of the Revised Rules of Court is of such nature residence rather than domicile is the significant factor. Even where the statute uses the word "domicile" still it is construed as meaning residence and not domicile in the technical sense. Some cases make a distinction between the terms "residence" and "domicile" but as generally used in statutes fixing venue, the terms are synonymous, and convey the same meaning as the term "inhabitant." In other words, "resides" should be viewed or understood in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence or place of abode. It signifies physical presence in a place and actual stay thereat. In this popular sense, the term means merely residence, that is, personal residence, not legal residence or domicile. Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that

place and also an intention to make it ones domicile. No particular length of time of residence is required though; however, the residence must be more than temporary. 41 (Emphasis supplied) It is incorrect for petitioners to argue that "residence," for purposes of fixing the venue of the settlement of the estate of Felicisimo, is synonymous with "domicile." The rulings in Nuval and Romualdez are inapplicable to the instant case because they involve election cases. Needless to say, there is a distinction between "residence" for purposes of election laws and "residence" for purposes of fixing the venue of actions. In election cases, "residence" and "domicile" are treated as synonymous terms, that is, the fixed permanent residence to which when absent, one has the intention of returning. 42 However, for purposes of fixing venue under the Rules of Court, the "residence" of a person is his personal, actual or physical habitation, or actual residence or place of abode, which may not necessarily be his legal residence or domicile provided he resides therein with continuity and consistency.43 Hence, it is possible that a person may have his residence in one place and domicile in another. In the instant case, while petitioners established that Felicisimo was domiciled in Sta. Cruz, Laguna, respondent proved that he also maintained a residence in Alabang, Muntinlupa from 1982 up to the time of his death. Respondent submitted in evidence the Deed of Absolute Sale 44 dated January 5, 1983 showing that the deceased purchased the aforesaid property. She also presented billing statements 45 from the Philippine Heart Center and Chinese General Hospital for the period August to December 1992 indicating the address of Felicisimo at "100 San Juanico, Ayala Alabang, Muntinlupa." Respondent also presented proof of membership of the deceased in the Ayala Alabang Village Association 46 and Ayala Country Club, Inc., 47 letter-envelopes 48 from 1988 to 1990 sent by the deceaseds children to him at his Alabang address, and the deceaseds calling cards 49stating that his home/city address is at "100 San Juanico, Ayala Alabang Village, Muntinlupa" while his office/provincial address is in "Provincial Capitol, Sta. Cruz, Laguna." From the foregoing, we find that Felicisimo was a resident of Alabang, Muntinlupa for purposes of fixing the venue of the settlement of his estate. Consequently, the subject petition for letters of administration was validly filed in the Regional Trial Court 50 which has territorial jurisdiction over Alabang, Muntinlupa. The subject petition was filed on December 17, 1993. At that time, Muntinlupa was still a municipality and the branches of the Regional Trial Court of the National Capital Judicial Region which had territorial jurisdiction over Muntinlupa were then seated in Makati City as per Supreme Court Administrative Order No. 3. 51 Thus, the subject petition was validly filed before the Regional Trial Court of Makati City. Anent the issue of respondent Felicidads legal personality to file the petition for letters of administration, we must first resolve the issue of whether a Filipino who is divorced by his alien spouse abroad may validly remarry under the Civil Code, considering that Felicidads marriage to Felicisimo was solemnized on June 20, 1974, or before the Family Code took effect on August 3, 1988. In resolving this issue, we need not retroactively apply the provisions of the Family Code, particularly Art. 26, par. (2) considering that there is sufficient jurisprudential basis allowing us to rule in the affirmative. The case of Van Dorn v. Romillo, Jr. 52 involved a marriage between a foreigner and his Filipino wife, which marriage was subsequently dissolved through a divorce obtained abroad by the latter. Claiming that the divorce was not valid under Philippine law, the alien spouse alleged that his interest in the properties from their conjugal partnership should be protected. The Court, however, recognized the validity of the divorce and held that the alien spouse had no interest in the properties acquired by the Filipino wife after the divorce. Thus:

In this case, the divorce in Nevada released private respondent from the marriage from the standards of American law, under which divorce dissolves the marriage. As stated by the Federal Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799: "The purpose and effect of a decree of divorce from the bond of matrimony by a competent jurisdiction are to change the existing status or domestic relation of husband and wife, and to free them both from the bond. The marriage tie, when thus severed as to one party, ceases to bind either. A husband without a wife, or a wife without a husband, is unknown to the law. When the law provides, in the nature of a penalty, that the guilty party shall not marry again, that party, as well as the other, is still absolutely freed from the bond of the former marriage." Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioners husband entitled to exercise control over conjugal assets. As he is bound by the Decision of his own countrys Court, which validly exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own representation before said Court from asserting his right over the alleged conjugal property. 53 As to the effect of the divorce on the Filipino wife, the Court ruled that she should no longer be considered married to the alien spouse. Further, she should not be required to perform her marital duties and obligations. It held: To maintain, as private respondent does, that, under our laws, petitioner has to be considered still married to private respondent and still subject to a wife's obligations under Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be obliged to live together with, observe respect and fidelity, and render support to private respondent. The latter should not continue to be one of her heirs with possible rights to conjugal property. She should not be discriminated against in her own country if the ends of justice are to be served. 54 (Emphasis added) This principle was thereafter applied in Pilapil v. Ibay-Somera 55 where the Court recognized the validity of a divorce obtained abroad. In the said case, it was held that the alien spouse is not a proper party in filing the adultery suit against his Filipino wife. The Court stated that " the severance of the marital bond had the effect of dissociating the former spouses from each other , hence the actuations of one would not affect or cast obloquy on the other." 56 Likewise, in Quita v. Court of Appeals, 57 the Court stated that where a Filipino is divorced by his naturalized foreign spouse, the ruling in Van Dorn applies. 58 Although decided on December 22, 1998, the divorce in the said case was obtained in 1954 when the Civil Code provisions were still in effect. The significance of the Van Dorn case to the development of limited recognition of divorce in the Philippines cannot be denied. The ruling has long been interpreted as severing marital ties between parties in a mixed marriage and capacitating the Filipino spouse to remarry as a necessary consequence of upholding the validity of a divorce obtained abroad by the alien spouse. In his treatise, Dr. Arturo M. Tolentino cited Van Dorn stating that "if the foreigner obtains a valid foreign divorce, the Filipino spouse shall have capacity to remarry under Philippine law." 59 In Garcia v. Recio, 60 the Court likewise cited the aforementioned case in relation to Article 26. 61 In the recent case of Republic v. Orbecido III, 62 the historical background and legislative intent behind paragraph 2, Article 26 of the Family Code were discussed, to wit: Brief Historical Background

On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209, otherwise known as the "Family Code," which took effect on August 3, 1988. Article 26 thereof states: All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35, 37, and 38. On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No. 227 was likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A second paragraph was added to Article 26. As so amended, it now provides: ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38. Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (Emphasis supplied) xxxx Legislative Intent Records of the proceedings of the Family Code deliberations showed that the intent of Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil Code Revision Committee, is to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse. Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v. Romillo, Jr. TheVan Dorn case involved a marriage between a Filipino citizen and a foreigner. The Court held therein that a divorce decree validly obtained by the alien spouse is valid in the Philippines, and consequently, the Filipino spouse is capacitated to remarry under Philippine law. 63 (Emphasis added) As such, the Van Dorn case is sufficient basis in resolving a situation where a divorce is validly obtained abroad by the alien spouse. With the enactment of the Family Code and paragraph 2, Article 26 thereof, our lawmakers codified the law already established through judicial precedent.

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Indeed, when the object of a marriage is defeated by rendering its continuance intolerable to one of the parties and productive of no possible good to the community, relief in some way should be obtainable. 64 Marriage, being a mutual and shared commitment between two parties, cannot possibly be productive of any good to the society where one is considered released from the marital bond while the other remains bound to it. Such is the state of affairs where the alien spouse obtains a valid divorce abroad against the Filipino spouse, as in this case. Petitioners cite Articles 15 65 and 17 66 of the Civil Code in stating that the divorce is void under Philippine law insofar as Filipinos are concerned. However, in light of this Courts rulings in the cases discussed above, the Filipino spouse should not be discriminated against in his own country if the ends of justice are to be served. 67 In Alonzo v. Intermediate Appellate Court, 68 the Court stated: But as has also been aptly observed, we test a law by its results; and likewise, we may add, by its purposes. It is a cardinal rule that, in seeking the meaning of the law, the first concern of the judge

should be to discover in its provisions the intent of the lawmaker. Unquestionably, the law should never be interpreted in such a way as to cause injustice as this is never within the legislative intent. An indispensable part of that intent, in fact, for we presume the good motives of the legislature, is to render justice. Thus, we interpret and apply the law not independently of but in consonance with justice. Law and justice are inseparable, and we must keep them so. To be sure, there are some laws that, while generally valid, may seem arbitrary when applied in a particular case because of its peculiar circumstances. In such a situation, we are not bound, because only of our nature and functions, to apply them just the same, in slavish obedience to their language. What we do instead is find a balance between the word and the will, that justice may be done even as the law is obeyed. As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is worded, yielding like robots to the literal command without regard to its cause and consequence. "Courts are apt to err by sticking too closely to the words of a law," so we are warned, by Justice Holmes again, "where these words import a policy that goes beyond them." xxxx More than twenty centuries ago, Justinian defined justice "as the constant and perpetual wish to render every one his due." That wish continues to motivate this Court when it assesses the facts and the law in every case brought to it for decision. Justice is always an essential ingredient of its decisions. Thus when the facts warrants, we interpret the law in a way that will render justice, presuming that it was the intention of the lawmaker, to begin with, that the law be dispensed with justice. 69 Applying the above doctrine in the instant case, the divorce decree allegedly obtained by Merry Lee which absolutely allowed Felicisimo to remarry, would have vested Felicidad with the legal personality to file the present petition as Felicisimos surviving spouse. However, the records show that there is insufficient evidence to prove the validity of the divorce obtained by Merry Lee as well as the marriage of respondent and Felicisimo under the laws of the U.S.A. In Garcia v. Recio, 70 the Court laid down the specific guidelines for pleading and proving foreign law and divorce judgments. It held that presentation solely of the divorce decree is insufficient and that proof of its authenticity and due execution must be presented. Under Sections 24 and 25 of Rule 132, a writing or document may be proven as a public or official record of a foreign country by either (1) an official publication or (2) a copy thereof attested by the officer having legal custody of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his office. 71 With regard to respondents marriage to Felicisimo allegedly solemnized in California, U.S.A., she submitted photocopies of the Marriage Certificate and the annotated text 72 of the Family Law Act of California which purportedly show that their marriage was done in accordance with the said law. As stated in Garcia, however, the Court cannot take judicial notice of foreign laws as they must be alleged and proved. 73 Therefore, this case should be remanded to the trial court for further reception of evidence on the divorce decree obtained by Merry Lee and the marriage of respondent and Felicisimo. Even assuming that Felicisimo was not capacitated to marry respondent in 1974, nevertheless, we find that the latter has the legal personality to file the subject petition for letters of administration, as

she may be considered the co-owner of Felicisimo as regards the properties that were acquired through their joint efforts during their cohabitation. Section 6, 74 Rule 78 of the Rules of Court states that letters of administration may be granted to the surviving spouse of the decedent. However, Section 2, Rule 79 thereof also provides in part: SEC. 2. Contents of petition for letters of administration. A petition for letters of administration must be filed by an interested person and must show, as far as known to the petitioner: x x x. An "interested person" has been defined as one who would be benefited by the estate, such as an heir, or one who has a claim against the estate, such as a creditor. The interest must be material and direct, and not merely indirect or contingent. 75 In the instant case, respondent would qualify as an interested person who has a direct interest in the estate of Felicisimo by virtue of their cohabitation, the existence of which was not denied by petitioners. If she proves the validity of the divorce and Felicisimos capacity to remarry, but fails to prove that her marriage with him was validly performed under the laws of the U.S.A., then she may be considered as a co-owner under Article 144 76 of the Civil Code. This provision governs the property relations between parties who live together as husband and wife without the benefit of marriage, or their marriage is void from the beginning. It provides that the property acquired by either or both of them through their work or industry or their wages and salaries shall be governed by the rules on co-ownership. In a co-ownership, it is not necessary that the property be acquired through their joint labor, efforts and industry. Any property acquired during the union is prima facie presumed to have been obtained through their joint efforts. Hence, the portions belonging to the co-owners shall be presumed equal, unless the contrary is proven. 77 Meanwhile, if respondent fails to prove the validity of both the divorce and the marriage, the applicable provision would be Article 148 of the Family Code which has filled the hiatus in Article 144 of the Civil Code by expressly regulating the property relations of couples living together as husband and wife but are incapacitated to marry. 78In Saguid v. Court of Appeals, 79 we held that even if the cohabitation or the acquisition of property occurred before the Family Code took effect, Article 148 governs. 80 The Court described the property regime under this provision as follows: The regime of limited co-ownership of property governing the union of parties who are not legally capacitated to marry each other, but who nonetheless live together as husband and wife, applies to properties acquired during said cohabitation in proportion to their respective contributions. Coownership will only be up to the extent of the proven actual contribution of money, property or industry. Absent proof of the extent thereof, their contributions and corresponding shares shall be presumed to be equal. xxxx In the cases of Agapay v. Palang, and Tumlos v. Fernandez, which involved the issue of coownership of properties acquired by the parties to a bigamous marriage and an adulterous relationship, respectively, we ruled that proof of actual contribution in the acquisition of the property is essential. x x x As in other civil cases, the burden of proof rests upon the party who, as determined by the pleadings or the nature of the case, asserts an affirmative issue. Contentions must be proved by competent evidence and reliance must be had on the strength of the partys own evidence and not upon the weakness of the opponents defense. x x x 81

In view of the foregoing, we find that respondents legal capacity to file the subject petition for letters of administration may arise from her status as the surviving wife of Felicisimo or as his co-owner under Article 144 of the Civil Code or Article 148 of the Family Code. WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals reinstating and affirming the February 28, 1994 Order of the Regional Trial Court which denied petitioners motion to dismiss and its October 24, 1994 Order which dismissed petitioners motion for reconsideration is AFFIRMED. Let this case be REMANDED to the trial court for further proceedings. SO ORDERED. CONSUELO YNARES-SANTIAGO Associate Justice FIRST DIVISION G.R. No. 154380 October 5, 2005 REPUBLIC OF THE PHILIPPINES, Petitioner, vs. CIPRIANO ORBECIDO III, Respondent. DECISION QUISUMBING, J.: Given a valid marriage between two Filipino citizens, where one party is later naturalized as a foreign citizen and obtains a valid divorce decree capacitating him or her to remarry, can the Filipino spouse likewise remarry under Philippine law? Before us is a case of first impression that behooves the Court to make a definite ruling on this apparently novel question, presented as a pure question of law. In this petition for review, the Solicitor General assails the Decision1 dated May 15, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23 and its Resolution2 dated July 4, 2002 denying the motion for reconsideration. The court a quo had declared that herein respondent Cipriano Orbecido III is capacitated to remarry. The fallo of the impugned Decision reads: WHEREFORE, by virtue of the provision of the second paragraph of Art. 26 of the Family Code and by reason of the divorce decree obtained against him by his American wife, the petitioner is given the capacity to remarry under the Philippine Law. IT IS SO ORDERED.3 The factual antecedents, as narrated by the trial court, are as follows. On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the United Church of Christ in the Philippines in Lam-an, Ozamis City. Their marriage was blessed with a son and a daughter, Kristoffer Simbortriz V. Orbecido and Lady Kimberly V. Orbecido.

In 1986, Ciprianos wife left for the United States bringing along their son Kristoffer. A few years later, Cipriano discovered that his wife had been naturalized as an American citizen. Sometime in 2000, Cipriano learned from his son that his wife had obtained a divorce decree and then married a certain Innocent Stanley. She, Stanley and her child by him currently live at 5566 A. Walnut Grove Avenue, San Gabriel, California. Cipriano thereafter filed with the trial court a petition for authority to remarry invoking Paragraph 2 of Article 26 of the Family Code. No opposition was filed. Finding merit in the petition, the court granted the same. The Republic, herein petitioner, through the Office of the Solicitor General (OSG), sought reconsideration but it was denied. In this petition, the OSG raises a pure question of law: WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE 26 OF THE FAMILY CODE4 The OSG contends that Paragraph 2 of Article 26 of the Family Code is not applicable to the instant case because it only applies to a valid mixed marriage; that is, a marriage celebrated between a Filipino citizen and an alien. The proper remedy, according to the OSG, is to file a petition for annulment or for legal separation.5 Furthermore, the OSG argues there is no law that governs respondents situation. The OSG posits that this is a matter of legislation and not of judicial determination.6 For his part, respondent admits that Article 26 is not directly applicable to his case but insists that when his naturalized alien wife obtained a divorce decree which capacitated her to remarry, he is likewise capacitated by operation of law pursuant to Section 12, Article II of the Constitution. 7 At the outset, we note that the petition for authority to remarry filed before the trial court actually constituted a petition for declaratory relief. In this connection, Section 1, Rule 63 of the Rules of Court provides: RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES Section 1. Who may file petitionAny person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or other governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder. ... The requisites of a petition for declaratory relief are: (1) there must be a justiciable controversy; (2) the controversy must be between persons whose interests are adverse; (3) that the party seeking the relief has a legal interest in the controversy; and (4) that the issue is ripe for judicial determination.8 This case concerns the applicability of Paragraph 2 of Article 26 to a marriage between two Filipino citizens where one later acquired alien citizenship, obtained a divorce decree, and remarried while in

the U.S.A. The interests of the parties are also adverse, as petitioner representing the State asserts its duty to protect the institution of marriage while respondent, a private citizen, insists on a declaration of his capacity to remarry. Respondent, praying for relief, has legal interest in the controversy. The issue raised is also ripe for judicial determination inasmuch as when respondent remarries, litigation ensues and puts into question the validity of his second marriage. Coming now to the substantive issue, does Paragraph 2 of Article 26 of the Family Code apply to the case of respondent? Necessarily, we must dwell on how this provision had come about in the first place, and what was the intent of the legislators in its enactment? Brief Historical Background On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209, otherwise known as the "Family Code," which took effect on August 3, 1988. Article 26 thereof states: All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35, 37, and 38. On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No. 227 was likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A second paragraph was added to Article 26. As so amended, it now provides: ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38. Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (Emphasis supplied) On its face, the foregoing provision does not appear to govern the situation presented by the case at hand. It seems to apply only to cases where at the time of the celebration of the marriage, the parties are a Filipino citizen and a foreigner. The instant case is one where at the time the marriage was solemnized, the parties were two Filipino citizens, but later on, the wife was naturalized as an American citizen and subsequently obtained a divorce granting her capacity to remarry, and indeed she remarried an American citizen while residing in the U.S.A. Noteworthy, in the Report of the Public Hearings 9 on the Family Code, the Catholic Bishops Conference of the Philippines (CBCP) registered the following objections to Paragraph 2 of Article 26: 1. The rule is discriminatory. It discriminates against those whose spouses are Filipinos who divorce them abroad. These spouses who are divorced will not be able to re-marry, while the spouses of foreigners who validly divorce them abroad can. 2. This is the beginning of the recognition of the validity of divorce even for Filipino citizens. For those whose foreign spouses validly divorce them abroad will also be considered to be validly divorced here and can re-marry. We propose that this be deleted and made into law only after more widespread consultation. (Emphasis supplied.)

Legislative Intent Records of the proceedings of the Family Code deliberations showed that the intent of Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil Code Revision Committee, is to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse. Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v. Romillo, Jr.10 The Van Dorn case involved a marriage between a Filipino citizen and a foreigner. The Court held therein that a divorce decree validly obtained by the alien spouse is valid in the Philippines, and consequently, the Filipino spouse is capacitated to remarry under Philippine law. Does the same principle apply to a case where at the time of the celebration of the marriage, the parties were Filipino citizens, but later on, one of them obtains a foreign citizenship by naturalization? The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals.11 In Quita, the parties were, as in this case, Filipino citizens when they got married. The wife became a naturalized American citizen in 1954 and obtained a divorce in the same year. The Court therein hinted, by way of obiter dictum, that a Filipino divorced by his naturalized foreign spouse is no longer married under Philippine law and can thus remarry. Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that Paragraph 2 of Article 26 should be interpreted to include cases involving parties who, at the time of the celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce decree. The Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time of the solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice. Where the interpretation of a statute according to its exact and literal import would lead to mischievous results or contravene the clear purpose of the legislature, it should be construed according to its spirit and reason, disregarding as far as necessary the letter of the law. A statute may therefore be extended to cases not within the literal meaning of its terms, so long as they come within its spirit or intent. 12 If we are to give meaning to the legislative intent to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce is no longer married to the Filipino spouse, then the instant case must be deemed as coming within the contemplation of Paragraph 2 of Article 26. In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article 26 as follows: 1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and 2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry. The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry. In this case, when Ciprianos wife was naturalized as an American citizen, there was still a valid marriage that has been celebrated between her and Cipriano. As fate would have it, the naturalized

alien wife subsequently obtained a valid divorce capacitating her to remarry. Clearly, the twin requisites for the application of Paragraph 2 of Article 26 are both present in this case. Thus Cipriano, the "divorced" Filipino spouse, should be allowed to remarry. We are also unable to sustain the OSGs theory that the proper remedy of the Filipino spouse is to file either a petition for annulment or a petition for legal separation. Annulment would be a long and tedious process, and in this particular case, not even feasible, considering that the marriage of the parties appears to have all the badges of validity. On the other hand, legal separation would not be a sufficient remedy for it would not sever the marriage tie; hence, the legally separated Filipino spouse would still remain married to the naturalized alien spouse. However, we note that the records are bereft of competent evidence duly submitted by respondent concerning the divorce decree and the naturalization of respondents wife. It is settled rule that one who alleges a fact has the burden of proving it and mere allegation is not evidence. 13 Accordingly, for his plea to prosper, respondent herein must prove his allegation that his wife was naturalized as an American citizen. Likewise, before a foreign divorce decree can be recognized by our own courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it.14 Such foreign law must also be proved as our courts cannot take judicial notice of foreign laws. Like any other fact, such laws must be alleged and proved.15 Furthermore, respondent must also show that the divorce decree allows his former wife to remarry as specifically required in Article 26. Otherwise, there would be no evidence sufficient to declare that he is capacitated to enter into another marriage. Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of the Family Code (E.O. No. 209, as amended by E.O. No. 227), should be interpreted to allow a Filipino citizen, who has been divorced by a spouse who had acquired foreign citizenship and remarried, also to remarry. However, considering that in the present petition there is no sufficient evidence submitted and on record, we are unable to declare, based on respondents bare allegations that his wife, who was naturalized as an American citizen, had obtained a divorce decree and had remarried an American, that respondent is now capacitated to remarry. Such declaration could only be made properly upon respondents submission of the aforecited evidence in his favor. ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED. The assailed Decision dated May 15, 2002, and Resolution dated July 4, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23, are hereby SET ASIDE. No pronouncement as to costs. SO ORDERED. LEONARDO A. QUISUMBING Associate Justice THIRD DIVISION G.R. No. 138322 October 2, 2001

GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner, vs. REDERICK A. RECIO, respondents. PANGANIBAN, J.: A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid according to the national law of the foreigner. However, the divorce decree and the governing personal law of the alien spouse who obtained the divorce must be proven. Our courts do not take judicial notice of foreign laws and judgment; hence, like any other facts, both the divorce decree and the national law of the alien must be alleged and proven according to our law on evidence. The Case Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to nullify the January 7, 1999 Decision1 and the March 24, 1999 Order2 of the Regional Trial Court of Cabanatuan City, Branch 28, in Civil Case No. 3026-AF. The assailed Decision disposed as follows: "WHEREFORE, this Court declares the marriage between Grace J. Garcia and Rederick A. Recio solemnized on January 12, 1994 at Cabanatuan City as dissolved and both parties can now remarry under existing and applicable laws to any and/or both parties." 3 The assailed Order denied reconsideration of the above-quoted Decision. The Facts Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in Malabon, Rizal, on March 1, 1987.4 They lived together as husband and wife in Australia. On May 18, 1989, 5 a decree of divorce, purportedly dissolving the marriage, was issued by an Australian family court. On June 26, 1992, respondent became an Australian citizen, as shown by a "Certificate of Australian Citizenship" issued by the Australian government.6 Petitioner a Filipina and respondent were married on January 12, 1994 in Our Lady of Perpetual Help Church in Cabanatuan City. 7 In their application for a marriage license, respondent was declared as "single" and "Filipino." 8 Starting October 22, 1995, petitioner and respondent lived separately without prior judicial dissolution of their marriage. While the two were still in Australia, their conjugal assets were divided on May 16, 1996, in accordance with their Statutory Declarations secured in Australia. 9 On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage 10 in the court a quo, on the ground of bigamy respondent allegedly had a prior subsisting marriage at the time he married her on January 12, 1994. She claimed that she learned of respondent's marriage to Editha Samson only in November, 1997. In his Answer, respondent averred that, as far back as 1993, he had revealed to petitioner his prior marriage andits subsequent dissolution.11 He contended that his first marriage to an Australian citizen had been validly dissolved by a divorce decree obtained in Australian in 1989; 12 thus, he was legally capacitated to marry petitioner in 1994.
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On July 7, 1998 or about five years after the couple's wedding and while the suit for the declaration of nullity was pending respondent was able to secure a divorce decree from a family court in Sydney, Australia because the "marriage ha[d] irretrievably broken down." 13 Respondent prayed in his Answer that the Complained be dismissed on the ground that it stated no cause of action.14 The Office of the Solicitor General agreed with respondent. 15 The court marked and admitted the documentary evidence of both parties. 16 After they submitted their respective memoranda, the case was submitted for resolution.17 Thereafter, the trial court rendered the assailed Decision and Order. Ruling of the Trial Court The trial court declared the marriage dissolved on the ground that the divorce issued in Australia was valid and recognized in the Philippines. It deemed the marriage ended, but not on the basis of any defect in an essential element of the marriage; that is, respondent's alleged lack of legal capacity to remarry. Rather, it based its Decision on the divorce decree obtained by respondent. The Australian divorce had ended the marriage; thus, there was no more martial union to nullify or annual. Hence, this Petition.18 Issues Petitioner submits the following issues for our consideration: "I The trial court gravely erred in finding that the divorce decree obtained in Australia by the respondent ipso facto terminated his first marriage to Editha Samson thereby capacitating him to contract a second marriage with the petitioner. "2 The failure of the respondent, who is now a naturalized Australian, to present a certificate of legal capacity to marry constitutes absence of a substantial requisite voiding the petitioner' marriage to the respondent. "3 The trial court seriously erred in the application of Art. 26 of the Family Code in this case. "4 The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40, 52 and 53 of the Family Code as the applicable provisions in this case. "5

The trial court gravely erred in pronouncing that the divorce gravely erred in pronouncing that the divorce decree obtained by the respondent in Australia ipso facto capacitated the parties to remarry, without first securing a recognition of the judgment granting the divorce decree before our courts."19 The Petition raises five issues, but for purposes of this Decision, we shall concentrate on two pivotal ones: (1) whether the divorce between respondent and Editha Samson was proven, and (2) whether respondent was proven to be legally capacitated to marry petitioner. Because of our ruling on these two, there is no more necessity to take up the rest. The Court's Ruling The Petition is partly meritorious. First Issue: Proving the Divorce Between Respondent and Editha Samson Petitioner assails the trial court's recognition of the divorce between respondent and Editha Samson. Citing Adong v. Cheong Seng Gee,20 petitioner argues that the divorce decree, like any other foreign judgment, may be given recognition in this jurisdiction only upon proof of the existence of (1) the foreign law allowing absolute divorce and (2) the alleged divorce decree itself. She adds that respondent miserably failed to establish these elements. Petitioner adds that, based on the first paragraph of Article 26 of the Family Code, marriages solemnized abroad are governed by the law of the place where they were celebrated (the lex loci celebrationist). In effect, the Code requires the presentation of the foreign law to show the conformity of the marriage in question to the legal requirements of the place where the marriage was performed. At the outset, we lay the following basic legal principles as the take-off points for our discussion. Philippine law does not provide for absolute divorce; hence, our courts cannot grant it. 21 A marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad, because of Articles 1522 and 1723 of the Civil Code.24 In mixed marriages involving a Filipino and a foreigner, Article 2625 of the Family Code allows the former to contract a subsequent marriage in case the divorce is "validly obtained abroad by the alien spouse capacitating him or her to remarry." 26 A divorce obtained abroad by a couple, who are both aliens, may be recognized in the Philippines, provided it is consistent with their respective national laws.27 A comparison between marriage and divorce, as far as pleading and proof are concerned, can be made. Van Dorn v. Romillo Jr. decrees that "aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law." 28 Therefore, before a foreign divorce decree can be recognized by our courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it. 29 Presentation solely of the divorce decree is insufficient. Divorce as a Question of Fact Petitioner insists that before a divorce decree can be admitted in evidence, it must first comply with the registration requirements under Articles 11, 13 and 52 of the Family Code. These articles read as follows:

"ART. 11. Where a marriage license is required, each of the contracting parties shall file separately a sworn application for such license with the proper local civil registrar which shall specify the following: xxx xxx xxx

"(5) If previously married, how, when and where the previous marriage was dissolved or annulled; xxx xxx xxx

"ART. 13. In case either of the contracting parties has been previously married, the applicant shall be required to furnish, instead of the birth of baptismal certificate required in the last preceding article, the death certificate of the deceased spouse or the judicial decree of annulment or declaration of nullity of his or her previous marriage. x x x. "ART. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses, and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect their persons." Respondent, on the other hand, argues that the Australian divorce decree is a public document a written official act of an Australian family court. Therefore, it requires no further proof of its authenticity and due execution. Respondent is getting ahead of himself. Before a foreign judgment is given presumptive evidentiary value, the document must first be presented and admitted in evidence. 30 A divorce obtained abroad is proven by the divorce decree itself. Indeed the best evidence of a judgment is the judgment itself.31 The decree purports to be a written act or record of an act of an officially body or tribunal of a foreign country.32 Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven as a public or official record of a foreign country by either (1) an official publication or (2) a copy thereof attested33 by the officer having legal custody of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his office. 34 The divorce decree between respondent and Editha Samson appears to be an authentic one issued by an Australian family court.35 However, appearance is not sufficient; compliance with the aforemetioned rules on evidence must be demonstrated. Fortunately for respondent's cause, when the divorce decree of May 18, 1989 was submitted in evidence, counsel for petitioner objected, not to its admissibility, but only to the fact that it had not been registered in the Local Civil Registry of Cabanatuan City.36 The trial court ruled that it was admissible, subject to petitioner's qualification.37Hence, it was admitted in evidence and accorded weight by the judge. Indeed, petitioner's failure to object properly rendered the divorce decree admissible as a written act of the Family Court of Sydney, Australia. 38 Compliance with the quoted articles (11, 13 and 52) of the Family Code is not necessary; respondent was no longer bound by Philippine personal laws after he acquired Australian citizenship

in 1992.39 Naturalization is the legal act of adopting an alien and clothing him with the political and civil rights belonging to a citizen.40 Naturalized citizens, freed from the protective cloak of their former states, don the attires of their adoptive countries. By becoming an Australian, respondent severed his allegiance to the Philippines and the vinculum juris that had tied him to Philippine personal laws. Burden of Proving Australian Law Respondent contends that the burden to prove Australian divorce law falls upon petitioner, because she is the party challenging the validity of a foreign judgment. He contends that petitioner was satisfied with the original of the divorce decree and was cognizant of the marital laws of Australia, because she had lived and worked in that country for quite a long time. Besides, the Australian divorce law is allegedly known by Philippine courts: thus, judges may take judicial notice of foreign laws in the exercise of sound discretion. We are not persuaded. The burden of proof lies with "the party who alleges the existence of a fact or thing necessary in the prosecution or defense of an action." 41 In civil cases, plaintiffs have the burden of proving the material allegations of the complaint when those are denied by the answer; and defendants have the burden of proving the material allegations in their answer when they introduce new matters.42 Since the divorce was a defense raised by respondent, the burden of proving the pertinent Australian law validating it falls squarely upon him. It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws. 43 Like any other facts, they must be alleged and proved. Australian marital laws are not among those matters that judges are supposed to know by reason of their judicial function. 44 The power of judicial notice must be exercised with caution, and every reasonable doubt upon the subject should be resolved in the negative. Second Issue: Respondent's Legal Capacity to Remarry Petitioner contends that, in view of the insufficient proof of the divorce, respondent was legally incapacitated to marry her in 1994. Hence, she concludes that their marriage was void ab initio. Respondent replies that the Australian divorce decree, which was validly admitted in evidence, adequately established his legal capacity to marry under Australian law. Respondent's contention is untenable. In its strict legal sense, divorce means the legal dissolution of a lawful union for a cause arising after marriage. But divorces are of different types. The two basic ones are (1) absolute divorce or a vinculo matrimonii and (2) limited divorce or a mensa et thoro. The first kind terminates the marriage, while the second suspends it and leaves the bond in full force.45 There is no showing in the case at bar which type of divorce was procured by respondent. Respondent presented a decree nisi or an interlocutory decree a conditional or provisional judgment of divorce. It is in effect the same as a separation from bed and board, although an absolute divorce may follow after the lapse of the prescribed period during which no reconciliation is effected.46

Even after the divorce becomes absolute, the court may under some foreign statutes and practices, still restrict remarriage. Under some other jurisdictions, remarriage may be limited by statute; thus, the guilty party in a divorce which was granted on the ground of adultery may be prohibited from remarrying again. The court may allow a remarriage only after proof of good behavior. 47 On its face, the herein Australian divorce decree contains a restriction that reads: "1. A party to a marriage who marries again before this decree becomes absolute (unless the other party has died) commits the offence of bigamy."48 This quotation bolsters our contention that the divorce obtained by respondent may have been restricted. It did not absolutely establish his legal capacity to remarry according to his national law. Hence, we find no basis for the ruling of the trial court, which erroneously assumed that the Australian divorce ipso facto restored respondent's capacity to remarry despite the paucity of evidence on this matter. We also reject the claim of respondent that the divorce decree raises a disputable presumption or presumptive evidence as to his civil status based on Section 48, Rule 39 49 of the Rules of Court, for the simple reason that no proof has been presented on the legal effects of the divorce decree obtained under Australian laws. Significance of the Certificate of Legal Capacity Petitioner argues that the certificate of legal capacity required by Article 21 of the Family Code was not submitted together with the application for a marriage license. According to her, its absence is proof that respondent did not have legal capacity to remarry. We clarify. To repeat, the legal capacity to contract marriage is determined by the national law of the party concerned. The certificate mentioned in Article 21 of the Family Code would have been sufficient to establish the legal capacity of respondent, had he duly presented it in court. A duly authenticated and admitted certificate is prima facie evidence of legal capacity to marry on the part of the alien applicant for a marriage license.50 As it is, however, there is absolutely no evidence that proves respondent's legal capacity to marry petitioner. A review of the records before this Court shows that only the following exhibits were presented before the lower court: (1) for petitioner: (a) Exhibit "A" Complaint; 51 (b) Exhibit "B" Certificate of Marriage Between Rederick A. Recto (Filipino-Australian) and Grace J. Garcia (Filipino) on January 12, 1994 in Cabanatuan City, Nueva Ecija; 52(c) Exhibit "C" Certificate of Marriage Between Rederick A. Recio (Filipino) and Editha D. Samson (Australian) on March 1, 1987 in Malabon, Metro Manila;53 (d) Exhibit "D" Office of the City Registrar of Cabanatuan City Certification that no information of annulment between Rederick A. Recto and Editha D. Samson was in its records;54 and (e) Exhibit "E" Certificate of Australian Citizenship of Rederick A. Recto;55 (2) for respondent: (Exhibit "1" Amended Answer;56 (b) Exhibit "S" Family Law Act 1975 Decree Nisi of Dissolution of Marriage in the Family Court of Australia; 57 (c) Exhibit "3" Certificate of Australian Citizenship of Rederick A. Recto;58 (d) Exhibit "4" Decree Nisi of Dissolution of Marriage in the Family Court of Australia Certificate;59 and Exhibit "5" Statutory Declaration of the Legal Separation Between Rederick A. Recto and Grace J. Garcia Recio since October 22, 1995. 60 Based on the above records, we cannot conclude that respondent, who was then a naturalized Australian citizen, was legally capacitated to marry petitioner on January 12, 1994. We agree with petitioner's contention that the court a quo erred in finding that the divorce decree ipso facto clothed respondent with the legal capacity to remarry without requiring him to adduce sufficient evidence to

show the Australian personal law governing his status; or at the very least, to prove his legal capacity to contract the second marriage. Neither can we grant petitioner's prayer to declare her marriage to respondent null and void on the ground of bigamy. After all, it may turn out that under Australian law, he was really capacitated to marry petitioner as a direct result of the divorce decree. Hence, we believe that the most judicious course is to remand this case to the trial court to receive evidence, if any, which show petitioner's legal capacity to marry petitioner. Failing in that, then the court a quo may declare a nullity of the parties' marriage on the ground of bigamy, there being already in evidence two existing marriage certificates, which were both obtained in the Philippines, one in Malabon, Metro Manila dated March 1, 1987 and the other, in Cabanatuan City dated January 12, 1994. WHEREFORE, in the interest of orderly procedure and substantial justice, we REMAND the case to the court a quo for the purpose of receiving evidence which conclusively show respondent's legal capacity to marry petitioner; and failing in that, of declaring the parties' marriage void on the ground of bigamy, as above discussed. No costs. SO ORDERED. Melo, Puno, Vitug, and Sandoval-Gutierrez, JJ., concur. THIRD DIVISION G.R. No. 167109 February 6, 2007

FELICITAS AMOR-CATALAN, Petitioner, vs. COURT OF APPEALS, MANILA, ORLANDO B. CATALAN and MEROPE E. BRAGANZA, Respondents. DECISION YNARES-SANTIAGO, J.: This petition for review assails the Decision1 of the Court of Appeals in CA-G.R. CV No. 69875 dated August 6, 2004, which reversed the Decision 2 of the Regional Trial Court (RTC) of Dagupan City, Branch 44, in Civil Case No. D-10636, declaring the marriage between respondents Orlando B. Catalan and Merope E. Braganza void on the ground of bigamy, as well as the Resolution 3 dated January 27, 2005, which denied the motion for reconsideration. Petitioner Felicitas Amor-Catalan married respondent Orlando on June 4, 1950 in Mabini, Pangasinan.4Thereafter, they migrated to the United States of America and allegedly became naturalized citizens thereof. After 38 years of marriage, Felicitas and Orlando divorced in April 1988. 5 Two months after the divorce, or on June 16, 1988, Orlando married respondent Merope in Calasiao, Pangasinan.6 Contending that said marriage was bigamous since Merope had a prior subsisting marriage with Eusebio Bristol, petitioner filed a petition for declaration of nullity of marriage with damages in the RTC of Dagupan City7 against Orlando and Merope. Respondents filed a motion to dismiss8 on the ground of lack of cause of action as petitioner was allegedly not a real party-in-interest, but it was denied. 9 Trial on the merits ensued.

On October 10, 2000, the RTC rendered judgment in favor of the petitioner, the dispositive portion of which reads: WHEREFORE, judgment is declared in favor of plaintiff Felicitas Amor Catalan and against defendants Orlando B. Catalan and Merope E. Braganza, as follows: 1) The subsequent marriage of Merope Braganza with Orlando B. Catalan is declared null and void ab initio; 2) The defendants are ordered jointly and severally to pay plaintiff by way of moral damages the amount of P300,000.00, exemplary damages in the amount of P200,000.00 and attorneys fees in the amount of P50,000.00, including costs of this suit; and 3) The donation in consideration of marriage is ordered revoked and the property donated is ordered awarded to the heirs of Juliana Braganza. Furnish copies of this Decision to Atty. Napoleon B. Arenas, Jr. and Atty. Nolan Evangelista. SO ORDERED.10 Respondents appealed the decision to the Court of Appeals, which reversed the decision of the RTC, thus: WHEREFORE, premises considered, we hereby GRANT the appeal and consequently REVERSE and SET ASIDE the appealed decision. We likewise DISMISS Civil Case No. D-10636, RTC, Branch 44, Dagupan City. No costs. SO ORDERED.11 After the motion for reconsideration was denied, petitioner filed the instant petition for review raising the following issues: I. WHETHER PETITIONER HAS THE REQUIRED STANDING IN COURT TO QUESTION THE NULLITY OF THE MARRIAGE BETWEEN RESPONDENTS; II. WHETHER THE FAILURE OF THE COURT OF APPEALS TO DECLARE THE QUESTIONED MARRIAGE VOID CONSTITUTES REVERSIBLE ERROR.12 Petitioner contends that the bigamous marriage of the respondents, which brought embarrassment to her and her children, confers upon her an interest to seek judicial remedy to address her grievances and to protect her family from further embarrassment and humiliation. She claims that the Court of Appeals committed reversible error in not declaring the marriage void despite overwhelming evidence and the state policy discouraging illegal and immoral marriages. 13 The main issue to be resolved is whether petitioner has the personality to file a petition for the declaration of nullity of marriage of the respondents on the ground of bigamy. However, this issue may not be resolved without first determining the corollary factual issues of whether the petitioner

and respondent Orlando had indeed become naturalized American citizens and whether they had actually been judicially granted a divorce decree. While it is a settled rule that the Court is not a trier of facts and does not normally undertake the reexamination of the evidence presented by the contending parties during the trial of the case, 14 there are, however, exceptions to this rule, like when the findings of facts of the RTC and the Court of Appeals are conflicting, or when the findings are conclusions without citation of specific evidence on which they are based.15 Both the RTC and the Court of Appeals found that petitioner and respondent Orlando were naturalized American citizens and that they obtained a divorce decree in April 1988. However, after a careful review of the records, we note that other than the allegations in the complaint and the testimony during the trial, the records are bereft of competent evidence to prove their naturalization and divorce. The Court of Appeals therefore had no basis when it held: In light of the allegations of Felicitas complaint and the documentary and testimonial evidence she presented, we deem it undisputed that Orlando and Felicitas are American citizens and had this citizenship status when they secured their divorce decree in April 1988. We are not therefore dealing in this case with Filipino citizens whose marital status is governed by the Family Code and our Civil Code, but with American citizens who secured their divorce in the U.S. and who are considered by their national law to be free to contract another marriage. x x x16 Further, the Court of Appeals mistakenly considered the failure of the petitioner to refute or contest the allegation in respondents brief, that she and respondent Orlando were American citizens at the time they secured their divorce in April 1988, as sufficient to establish the fact of naturalization and divorce.17 We note that it was the petitioner who alleged in her complaint that they acquired American citizenship and that respondent Orlando obtained a judicial divorce decree. 18 It is settled rule that one who alleges a fact has the burden of proving it and mere allegation is not evidence. 19 Divorce means the legal dissolution of a lawful union for a cause arising after marriage. But divorces are of different types. The two basic ones are (1) absolute divorce or a vinculo matrimonii and (2) limited divorce or a mensa et thoro. The first kind terminates the marriage, while the second suspends it and leaves the bond in full force.20 A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid according to the national law of the foreigner.21 However, before it can be recognized by our courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it, which must be proved considering that our courts cannot take judicial notice of foreign laws. 22 Without the divorce decree and foreign law as part of the evidence, we cannot rule on the issue of whether petitioner has the personality to file the petition for declaration of nullity of marriage. After all, she may have the personality to file the petition if the divorce decree obtained was a limited divorce or a mensa et thoro; or the foreign law may restrict remarriage even after the divorce decree becomes absolute.23 In such case, the RTC would be correct to declare the marriage of the respondents void for being bigamous, there being already in evidence two existing marriage certificates, which were both obtained in the Philippines, one in Mabini, Pangasinan dated December 21, 1959 between Eusebio Bristol and respondent Merope, 24 and the other, in Calasiao, Pangasinan dated June 16, 1988 between the respondents. 25

However, if there was indeed a divorce decree obtained and which, following the national law of Orlando, does not restrict remarriage, the Court of Appeals would be correct in ruling that petitioner has no legal personality to file a petition to declare the nullity of marriage, thus: Freed from their existing marital bond, each of the former spouses no longer has any interest nor should each have the personality to inquire into the marriage that the other might subsequently contract. x x x Viewed from another perspective, Felicitas has no existing interest in Orlandos subsequent marriage since the validity, as well as any defect or infirmity, of this subsequent marriage will not affect the divorced status of Orlando and Felicitas. x x x26 True, under the New Civil Code which is the law in force at the time the respondents were married, or even in the Family Code, there is no specific provision as to who can file a petition to declare the nullity of marriage; however, only a party who can demonstrate " proper interest" can file the same. A petition to declare the nullity of marriage, like any other actions, must be prosecuted or defended in the name of the real party in interest 27 and must be based on a cause of action.28 Thus, in Nial v. Bayadog,29 the Court held that the children have the personality to file the petition to declare the nullity of the marriage of their deceased father to their stepmother as it affects their successional rights.
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Significantly, Section 2(a) of The Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, which took effect on March 15, 2003, now specifically provides: SECTION 2. Petition for declaration of absolute nullity of void marriages. (a) Who may file. A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife. xxxx In fine, petitioners personality to file the petition to declare the nullity of marriage cannot be ascertained because of the absence of the divorce decree and the foreign law allowing it. Hence, a remand of the case to the trial court for reception of additional evidence is necessary to determine whether respondent Orlando was granted a divorce decree and whether the foreign law which granted the same allows or restricts remarriage. If it is proved that a valid divorce decree was obtained and the same did not allow respondent Orlandos remarriage, then the trial court should declare respondents marriage as bigamous and void ab initio but reduce the amount of moral damages from P300,000.00 to P50,000.00 and exemplary damages from P200,000.00 to P25,000.00. On the contrary, if it is proved that a valid divorce decree was obtained which allowed Orlando to remarry, then the trial court must dismiss the instant petition to declare nullity of marriage on the ground that petitioner Felicitas Amor-Catalan lacks legal personality to file the same. WHEREFORE, in view of the foregoing, let this case be REMANDED to the trial court for its proper disposition. No costs. SO ORDERED. CONSUELO YNARES-SANTIAGO Associate Justice THIRD DIVISION

G.R. No. 173614

September 28, 2007

LOLITA D. ENRICO, Petitioner, vs. HEIRS OF SPS. EULOGIO B. MEDINACELI AND TRINIDAD CATLI-MEDINACELI, REPRESENTED BY VILMA M. ARTICULO, Respondents. DECISION CHICO-NAZARIO, J.: The instant Petition for Certiorari filed under Rule 65 of the 1997 Rules of Civil Procedure assails the Order,1dated 3 May 2006 of the Regional Trial Court (RTC) of Aparri, Cagayan, Branch 6, in Civil Case No. II-4057, granting reconsideration of its Order, 2 dated 11 October 2005, and reinstating respondents Complaint for Declaration of Nullity of Marriage. On 17 March 2005, respondents, heirs of Spouses Eulogio B. Medinaceli (Eulogio) and Trinidad Catli-Medinaceli (Trinidad) filed with the RTC, an action for declaration of nullity of marriage of Eulogio and petitioner Lolita D. Enrico. Substantially, the complaint alleged, inter alia, that Eulogio and Trinidad were married on 14 June 1962, in Lal-lo, Cagayan. 3 They begot seven children, herein respondents, namely: Eduardo, Evelyn, Vilma, Mary Jane, Haizel, Michelle and Joseph Lloyd. 4 On 1 May 2004, Trinidad died.5 On 26 August 2004, Eulogio married petitioner before the Municipal Mayor of Lal-lo, Cagayan.6 Six months later, or on 10 February 2005, Eulogio passed away. 7 In impugning petitioners marriage to Eulogio, respondents averred that the same was entered into without the requisite marriage license. They argued that Article 348 of the Family Code, which exempts a man and a woman who have been living together for at least five years without any legal impediment from securing a marriage license, was not applicable to petitioner and Eulogio because they could not have lived together under the circumstances required by said provision. Respondents posited that the marriage of Eulogio to Trinidad was dissolved only upon the latters death, or on 1 May 2004, which was barely three months from the date of marriage of Eulogio to petitioner. Therefore, petitioner and Eulogio could not have lived together as husband and wife for at least five years. To further their cause, respondents raised the additional ground of lack of marriage ceremony due to Eulogios serious illness which made its performance impossible. In her Answer, petitioner maintained that she and Eulogio lived together as husband and wife under one roof for 21 years openly and publicly; hence, they were exempted from the requirement of a marriage license. From their union were born Elvin Enrico and Marco Enrico, all surnamed Medinaceli, on 28 October 1988 and 30 October 1991, respectively. She further contended that the marriage ceremony was performed in the Municipal Hall of Lal-lo, Cagayan, and solemnized by the Municipal Mayor. As an affirmative defense, she sought the dismissal of the action on the ground that it is only the contracting parties while living who can file an action for declaration of nullity of marriage. On 11 October 2005, the RTC issued an Order,9 granting the dismissal of the Complaint for lack of cause of action. It cited A.M. No. 02-11-10-SC,10 dated 7 March 2003, promulgated by the Supreme Court En Banc as basis. The RTC elucidated on its position in the following manner: The Complaint should be dismissed.

1) Administrative Matter No. 02-11-10-SC promulgated by the Supreme Court which took effect on March 15, 2003 provides in Section 2, par. (a)11 that a petition for Declaration of Absolute Nullity of a Void Marriage may be filed solely by the husband or the wife. The language of this rule is plain and simple which states that such a petition may be filed solely by the husband or the wife. The rule is clear and unequivocal that only the husband or the wife may file the petition for Declaration of Absolute Nullity of a Void Marriage. The reading of this Court is that the right to bring such petition is exclusive and this right solely belongs to them. Consequently, the heirs of the deceased spouse cannot substitute their late father in bringing the action to declare the marriage null and void.12 (Emphasis supplied.) The dispositive portion of the Order, thus, reads: WHEREFORE, [the] Motion to Dismiss raised as an affirmative defense in the answer is hereby GRANTED. Accordingly, the Complaint filed by the [respondents] is hereby DISMISSED with costs de officio. 13 Respondents filed a Motion for Reconsideration thereof. Following the filing by petitioner of her Comment to the said motion, the RTC rendered an Order14 dated 3 May 2006, reversing its Order of 11 October 2005. Hence, the RTC reinstated the complaint on the ratiocination that the assailed Order ignored the ruling in Nial v. Bayadog, 15which was on the authority for holding that the heirs of a deceased spouse have the standing to assail a void marriage even after the death of the latter. It held that Section 2(a) of A.M. No. 02-11-20-SC, which provides that a petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife, applies only where both parties to a void marriage are still living.16 Where one or both parties are deceased, the RTC held that the heirs may file a petition to declare the marriage void. The RTC expounded on its stance, thus: The questioned Order disregarded the case of Nial vs. Bayadog, 328 SCRA 122 (March 14, 2000) in which the Supreme Court, First Division, held that the heirs of a deceased person may file a petition for the declaration of his marriage after his death. The Order subject of this motion for reconsideration held that the case of Nial vs. Bayadog is now superseded by the new Rule on Declaration of Absolute Nullity of Marriages (hereinafter referred to as the Rule) because the Supreme Court has rejected the case of Nial vs. Bayadog by approving the Rule on Nullity of Void Marriages. The Order further held that it is only the husband or the wife who is (sic) the only parties allowed to file an action for declaration of nullity of their marriage and such right is purely personal and is not transmissible upon the death of the parties. It is admitted that there seems to be a conflict between the case of Nial vs. Bayadog and Section 2(a) of the Rule. In view of this, the Court shall try to reconcile the case of Nial vs. Bayadog and the Rule. To reconcile, the Court will have to determine [the] basic rights of the parties. The rights of the legitimate heirs of a person who entered into a void marriage will be prejudiced particularly with respect to their successional rights. During the lifetime of the parent[,] the heirs have only an inchoate right over the property of the said parents. Hence, during the lifetime of the parent, it would be proper that it should solely be the parent who should be allowed to file a petition to declare his marriage void. However, upon the death of the parent his heirs have already a vested right over whatever property left by the parent. Such vested right should not be frustrated by any rules of procedure such as the Rule. Rules of Procedure cannot repeal rights granted by substantive law. The heirs, then, have a legal standing in Court. If the heirs are prohibited from questioning the void marriage entered by their parent, especially when the marriage is illegal and feloniously entered into, it will give premium to such union because the guilty parties will seldom, if ever at all, ask for the annulment of the marriage. Such void marriage

will be given a semblance of validity if the heirs will not be allowed to file the petition after the death of the parent. For these reasons, this Court believes that Sec. 2(a) of the Rules on Declaration of Absolute Nullity of Marriage is applicable only when both parties to a (sic) void marriage are still living. Upon the death of anyone of the guilty party to the void marriage, his heirs may file a petition to declare the the (sic) marriage void, but the Rule is not applicable as it was not filed b the husband or the wife. It shall be the ordinary rule of civil procedure which shall be applicable. 17 Perforce, the decretal portion of the RTC Order of 3 May 2006 states: In view of the foregoing, the Court grants the motion for reconsideration dated October 31, 2005 and reinstate this case.18 Aggrieved, petitioner filed a Motion for Reconsideration of the foregoing Order; however, on 1 June 2006, the RTC denied the said motion on the ground that no new matter was raised therein. 19 Hence, the instant Petition under Rule 65 of the 1997 Rules of Civil Procedure on the sole question of whether the case law as embodied in Nial, or the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, as specified in A.M. No. 02-11-10-SC of the Supreme Court applies to the case at bar. At the outset, we note that petitioner took an abbreviated route to this Court, countenancing the hierarchy of courts. We have earlier emphasized that while the Supreme Court has the concurrent jurisdiction with the Court of Appeals and the RTCs (for writs enforceable within their respective regions), to issue writs of mandamus, prohibition or certiorari, the litigants are well advised against taking a direct recourse to this Court.20 Instead, they should initially seek the proper relief from the lower courts. As a court of last resort, this Court should not be burdened with the task of dealing with causes in the first instance. Where the issuance of an extraordinary writ is concurrently within the competence of the Court of Appeals or the RTC, litigants must observe the principle of hierarchy of courts. 21 However, it cannot be gainsaid that this Court has the discretionary power to brush aside procedural lapses if compelling reasons, or the nature and importance of the issues raised, warrant the immediate exercise of its jurisdiction.22 Moreover, notwithstanding the dismissibility of the instant Petition for its failure to observe the doctrine on the hierarchy of courts, this Court will proceed to entertain the case grounded as it is on a pure question of law. Petitioner maintains that A.M. No. 02-11-10-SC governs the instant case. A contrario, respondents posit that it is Nial which is applicable, whereby the heirs of the deceased person were granted the right to file a petition for the declaration of nullity of his marriage after his death. We grant the Petition. In reinstating respondents Complaint for Declaration of Nullity of Marriage, the RTC acted with grave abuse of discretion. While it is true that Nial in no uncertain terms allowed therein petitioners to file a petition for the declaration of nullity of their fathers marriage to therein respondent after the death of their father, we cannot, however, apply its ruling for the reason that the impugned marriage therein was solemnized prior to the effectivity of the Family Code. The Court in Nial recognized that the applicable law to

determine the validity of the two marriages involved therein is the Civil Code, which was the law in effect at the time of their celebration.23 What we have before us belongs to a different milieu, i.e., the marriage sought to be declared void was entered into during the effectivity of the Family Code. As can be gleaned from the facts, petitioners marriage to Eulogio was celebrated in 2004.
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The Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages as contained in A.M. No. 02-11-10-SC is explicit in its scope, to wit: Section 1. Scope. This Rule shall govern petitions for declaration of absolute nullity of void marriages and annulment of voidable marriages under the Family Code of the Philippines. The Rules of Court shall apply suppletorily. (Emphasis supplied.) The categorical language of A.M. No. 02-11-10-SC leaves no room for doubt. The coverage extends only to those marriages entered into during the effectivity of the Family Code which took effect on 3 August 1988.24 Moreover, A.M. No. 02-11-10-SC took effect on 15 March 2003, following its publication in a newspaper of general circulation. Thus, contrary to the opinion of the RTC, there is no need to reconcile the provisions of A.M. No. 02-11-10-SC with the ruling in Nial, because they vary in scope and application. As has been emphasized, A.M. No. 02-11-10-SC covers marriages under the Family Code of the Philippines, and is prospective in its application. The marriage of petitioner to Eulogio was celebrated on 26 August 2004, and it squarely falls within the ambit of A.M. No. 02-1110-SC. Hence, in resolving the issue before us, we resort to Section 2(a) of A.M. No. 02-11-10-SC, which provides: Section 2. Petition for declaration of absolute nullity of void marriages. (a) Who may file. A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife. (n) (Emphasis supplied.) There is no ambiguity in the Rule. Absolute sententil expositore non indiget. When the language of the law is clear, no explanation of it is required. Section 2(a) of A.M. No. 02-11-10-SC, makes it the sole right of the husband or the wife to file a petition for declaration of absolute nullity of void marriage. The Rationale of the Rules on Annulment of Voidable Marriages and Declaration of Absolute Nullity of Void Marriages, Legal Separation and Provisional Orders explicates on Section 2(a) in the following manner, viz: 1. Only an aggrieved or injured spouse may file petitions for annulment of voidable marriages and declaration of absolute nullity of void marriages. Such petitions cannot be filed by the compulsory or intestate heirs of the spouses or by the State. [Section 2; Section 3, paragraph a] Only an aggrieved or injured spouse may file a petition for annulment of voidable marriages or declaration of absolute nullity of void marriages. Such petition cannot be filed by compulsory or intestate heirs of the spouses or by the State. The Committee is of the belief that they do not have a legal right to file the petition. Compulsory or intestate heirs have only inchoate rights prior to the death of their predecessor, and hence can only question the validity of the marriage of the spouses

upon the death of a spouse in a proceeding for the settlement of the estate of the deceased spouse filed in the regular courts. On the other hand, the concern of the State is to preserve marriage and not to seek its dissolution.25 (Emphasis supplied.) Respondents clearly have no cause of action before the court a quo. Nonetheless, all is not lost for respondents. While A.M. No. 02-11-10-SC declares that a petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife, it does not mean that the compulsory or intestate heirs are already without any recourse under the law. They can still protect their successional right, for, as stated in the Rationale of the Rules on Annulment of Voidable Marriages and Declaration of Absolute Nullity of Void Marriages, Legal Separation and Provisional Orders, compulsory or intestate heirs can still question the validity of the marriage of the spouses, not in a proceeding for declaration of nullity, but upon the death of a spouse in a proceeding for the settlement of the estate of the deceased spouse filed in the regular courts. WHEREFORE, the Petition is GRANTED. Civil Case No. II-4057 filed before the Regional Trial Court of Aparri, Cagayan, Branch 6, is ORDERED DISMISSED without prejudice to challenging the validity of the marriage of Lolita D. Enrico to Eulogio B. Medinaceli in a proceeding for the settlement of the estate of the latter. No costs. SO ORDERED. MINITA V. CHICO-NAZARIO Associate Justice EN BANC

G.R. No. 112019 January 4, 1995 LEOUEL SANTOS, petitioner, vs. THE HONORABLE COURT OF APPEALS AND JULIA ROSARIO BEDIA-SANTOS, respondents.

VITUG, J.: Concededly a highly, if not indeed the most likely, controversial provision introduced by the Family Code is Article 36 (as amended by E.O. No. 227 dated 17 July 1987), which declares: Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. The present petition for review on certiorari, at the instance of Leouel Santos ("Leouel"), brings into fore the above provision which is now invoked by him. Undaunted by the decisions of the court a quo 1 and the Court of Appeal, 2 Leouel persists in beseeching its application in his attempt to have his marriage with herein private respondent, Julia Rosario Bedia-Santos ("Julia"), declared a nullity.

It was in Iloilo City where Leouel, who then held the rank of First Lieutenant in the Philippine Army, first met Julia. The meeting later proved to be an eventful day for Leouel and Julia. On 20 September 1986, the two exchanged vows before Municipal Trial Court Judge Cornelio G. Lazaro of Iloilo City, followed, shortly thereafter, by a church wedding. Leouel and Julia lived with the latter's parents at the J. Bedia Compound, La Paz, Iloilo City. On 18 July 1987, Julia gave birth to a baby boy, and he was christened Leouel Santos, Jr. The ecstasy, however, did not last long. It was bound to happen, Leouel averred, because of the frequent interference by Julia's parents into the young spouses family affairs. Occasionally, the couple would also start a "quarrel" over a number of other things, like when and where the couple should start living independently from Julia's parents or whenever Julia would express resentment on Leouel's spending a few days with his own parents. On 18 May 1988, Julia finally left for the United Sates of America to work as a nurse despite Leouel's pleas to so dissuade her. Seven months after her departure, or on 01 January 1989, Julia called up Leouel for the first time by long distance telephone. She promised to return home upon the expiration of her contract in July 1989. She never did. When Leouel got a chance to visit the United States, where he underwent a training program under the auspices of the Armed Forces of the Philippines from 01 April up to 25 August 1990, he desperately tried to locate, or to somehow get in touch with, Julia but all his efforts were of no avail. Having failed to get Julia to somehow come home, Leouel filed with the regional trial Court of Negros Oriental, Branch 30, a complaint for "Voiding of marriage Under Article 36 of the Family Code" (docketed, Civil Case No. 9814). Summons was served by publication in a newspaper of general circulation in Negros Oriental. On 31 May 1991, respondent Julia, in her answer (through counsel), opposed the complaint and denied its allegations, claiming, in main, that it was the petitioner who had, in fact, been irresponsible and incompetent. A possible collusion between the parties to obtain a decree of nullity of their marriage was ruled out by the Office of the Provincial Prosecutor (in its report to the court). On 25 October 1991, after pre-trial conferences had repeatedly been set, albeit unsuccessfully, by the court, Julia ultimately filed a manifestation, stating that she would neither appear nor submit evidence. On 06 November 1991, the court a quo finally dismissed the complaint for lack of merit. 3 Leouel appealed to the Court of Appeal. The latter affirmed the decision of the trial court. 4 The petition should be denied not only because of its non-compliance with Circular 28-91, which requires a certification of non-shopping, but also for its lack of merit. Leouel argues that the failure of Julia to return home, or at the very least to communicate with him, for more than five years are circumstances that clearly show her being psychologically incapacitated to enter into married life. In his own words, Leouel asserts: . . . (T)here is no leave, there is no affection for (him) because respondent Julia Rosario Bedia-Santos failed all these years to communicate with the petitioner. A wife who does not care to inform her husband about her whereabouts for a period of five years, more or less, is psychologically incapacitated.

The family Code did not define the term "psychological incapacity." The deliberations during the sessions of the Family Code Revision Committee, which has drafted the Code, can, however, provide an insight on the import of the provision. Art. 35. The following marriages shall be void from the beginning: xxx xxx xxx Art. 36. . . . (7) Those marriages contracted by any party who, at the time of the celebration, was wanting in the sufficient use of reason or judgment to understand the essential nature of marriage or was psychologically or mentally incapacitated to discharge the essential marital obligations, even if such lack of incapacity is made manifest after the celebration. On subparagraph (7), which as lifted from the Canon Law, Justice (Jose B.L.) Reyes suggested that they say "wanting in sufficient use," but Justice (Eduardo) Caguioa preferred to say "wanting in the sufficient use." On the other hand, Justice Reyes proposed that they say "wanting in sufficient reason." Justice Caguioa, however, pointed out that the idea is that one is not lacking in judgment but that he is lacking in the exercise of judgment. He added that lack of judgment would make the marriage voidable. Judge (Alicia Sempio-) Diy remarked that lack of judgment is more serious than insufficient use of judgment and yet the latter would make the marriage null and void and the former only voidable. Justice Caguioa suggested that subparagraph (7) be modified to read: "That contracted by any party who, at the time of the celebration, was psychologically incapacitated to discharge the essential marital obligations, even if such lack of incapacity is made manifest after the celebration." Justice Caguioa explained that the phrase "was wanting in sufficient use of reason of judgment to understand the essential nature of marriage" refers to defects in the mental faculties vitiating consent, which is not the idea in subparagraph (7), but lack of appreciation of one's marital obligations. Judge Diy raised the question: Since "insanity" is also a psychological or mental incapacity, why is "insanity" only a ground for annulment and not for declaration or nullity? In reply, Justice Caguioa explained that in insanity, there is the appearance of consent, which is the reason why it is a ground for voidable marriages, while subparagraph (7) does not refer to consent but to the very essence of marital obligations. Prof. (Araceli) Baviera suggested that, in subparagraph (7), the word "mentally" be deleted, with which Justice Caguioa concurred. Judge Diy, however, prefers to retain the word "mentally." Justice Caguioa remarked that subparagraph (7) refers to psychological impotence. Justice (Ricardo) Puno stated that sometimes a person may be psychologically

impotent with one but not with another. Justice (Leonor Ines-) Luciano said that it is called selective impotency. Dean (Fortunato) Gupit stated that the confusion lies in the fact that in inserting the Canon Law annulment in the Family Code, the Committee used a language which describes a ground for voidable marriages under the Civil Code. Justice Caguioa added that in Canon Law, there are voidable marriages under the Canon Law, there are no voidable marriages Dean Gupit said that this is precisely the reason why they should make a distinction. Justice Puno remarked that in Canon Law, the defects in marriage cannot be cured. Justice Reyes pointed out that the problem is: Why is "insanity" a ground for void ab initio marriages? In reply, Justice Caguioa explained that insanity is curable and there are lucid intervals, while psychological incapacity is not. On another point, Justice Puno suggested that the phrase "even if such lack or incapacity is made manifest" be modified to read "even if such lack or incapacity becomes manifest." Justice Reyes remarked that in insanity, at the time of the marriage, it is not apparent. Justice Caguioa stated that there are two interpretations of the phrase "psychological or mentally incapacitated" in the first one, there is vitiation of consent because one does not know all the consequences of the marriages, and if he had known these completely, he might not have consented to the marriage. xxx xxx xxx Prof. Bautista stated that he is in favor of making psychological incapacity a ground for voidable marriages since otherwise it will encourage one who really understood the consequences of marriage to claim that he did not and to make excuses for invalidating the marriage by acting as if he did not understand the obligations of marriage. Dean Gupit added that it is a loose way of providing for divorce. xxx xxx xxx Justice Caguioa explained that his point is that in the case of incapacity by reason of defects in the mental faculties, which is less than insanity, there is a defect in consent and, therefore, it is clear that it should be a ground for voidable marriage because there is the appearance of consent and it is capable of convalidation for the simple reason that there are lucid intervals and there are cases when the insanity is curable. He emphasized that psychological incapacity does not refer to mental faculties and has nothing to do with consent; it refers to obligations attendant to marriage. xxx xxx xxx On psychological incapacity, Prof. (Flerida Ruth P.) Romero inquired if they do not consider it as going to the very essence of consent. She asked if they are really

removing it from consent. In reply, Justice Caguioa explained that, ultimately, consent in general is effected but he stressed that his point is that it is not principally a vitiation of consent since there is a valid consent. He objected to the lumping together of the validity of the marriage celebration and the obligations attendant to marriage, which are completely different from each other, because they require a different capacity, which is eighteen years of age, for marriage but in contract, it is different. Justice Puno, however, felt that psychological incapacity is still a kind of vice of consent and that it should not be classified as a voidable marriage which is incapable of convalidation; it should be convalidated but there should be no prescription. In other words, as long as the defect has not been cured, there is always a right to annul the marriage and if the defect has been really cured, it should be a defense in the action for annulment so that when the action for annulment is instituted, the issue can be raised that actually, although one might have been psychologically incapacitated, at the time the action is brought, it is no longer true that he has no concept of the consequence of marriage. Prof. (Esteban) Bautista raised the question: Will not cohabitation be a defense? In response, Justice Puno stated that even the bearing of children and cohabitation should not be a sign that psychological incapacity has been cured. Prof. Romero opined that psychological incapacity is still insanity of a lesser degree. Justice Luciano suggested that they invite a psychiatrist, who is the expert on this matter. Justice Caguioa, however, reiterated that psychological incapacity is not a defect in the mind but in the understanding of the consequences of marriage, and therefore, a psychiatrist will not be a help.
Prof. Bautista stated that, in the same manner that there is a lucid interval in insanity, there are also momentary periods when there is an understanding of the consequences of marriage. Justice Reyes and Dean Gupit remarked that the ground of psychological incapacity will not apply if the marriage was contracted at the time when there is understanding of the consequences of marriage. 5

xxx xxx xxx Judge Diy proposed that they include physical incapacity to copulate among the grounds for void marriages. Justice Reyes commented that in some instances the impotence that in some instances the impotence is only temporary and only with respect to a particular person. Judge Diy stated that they can specify that it is incurable. Justice Caguioa remarked that the term "incurable" has a different meaning in law and in medicine. Judge Diy stated that "psychological incapacity" can also be cured. Justice Caguioa, however, pointed out that "psychological incapacity" is incurable. Justice Puno observed that under the present draft provision, it is enough to show that at the time of the celebration of the marriage, one was psychologically incapacitated so that later on if already he can comply with the essential marital obligations, the marriage is still void ab initio. Justice Caguioa explained that since in divorce, the psychological incapacity may occur after the marriage, in void marriages, it has to be at the time of the celebration of marriage. He, however, stressed that the idea in the provision is that at the time of the celebration of the marriage, one is psychologically incapacitated to comply with the essential marital obligations, which incapacity continues and later becomes manifest.

Justice Puno and Judge Diy, however, pointed out that it is possible that after the marriage, one's psychological incapacity become manifest but later on he is cured. Justice Reyes and Justice Caguioa opined that the remedy in this case is to allow him to remarry. 6

xxx xxx xxx Justice Puno formulated the next Article as follows: Art. 37. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated, to comply with the essential obligations of marriage shall likewise be void from the beginning even if such incapacity becomes manifest after its solemnization. Justice Caguioa suggested that "even if" be substituted with "although." On the other hand, Prof. Bautista proposed that the clause "although such incapacity becomes manifest after its solemnization" be deleted since it may encourage one to create the manifestation of psychological incapacity. Justice Caguioa pointed out that, as in other provisions, they cannot argue on the basis of abuse. Judge Diy suggested that they also include mental and physical incapacities, which are lesser in degree than psychological incapacity. Justice Caguioa explained that mental and physical incapacities are vices of consent while psychological incapacity is not a species of vice or consent. Dean Gupit read what Bishop Cruz said on the matter in the minutes of their February 9, 1984 meeting: "On the third ground, Bishop Cruz indicated that the phrase "psychological or mental impotence" is an invention of some churchmen who are moralists but not canonists, that is why it is considered a weak phrase. He said that the Code of Canon Law would rather express it as "psychological or mental incapacity to discharge . . ." Justice Caguioa remarked that they deleted the word "mental" precisely to distinguish it from vice of consent. He explained that "psychological incapacity" refers to lack of understanding of the essential obligations of marriage. Justice Puno reminded the members that, at the last meeting, they have decided not to go into the classification of "psychological incapacity" because there was a lot of debate on it and that this is precisely the reason why they classified it as a special case. At this point, Justice Puno, remarked that, since there having been annulments of marriages arising from psychological incapacity, Civil Law should not reconcile with Canon Law because it is a new ground even under Canon Law. Prof. Romero raised the question: With this common provision in Civil Law and in Canon Law, are they going to have a provision in the Family Code to the effect that marriages annulled or declared void by the church on the ground of psychological

incapacity is automatically annulled in Civil Law? The other members replied negatively. Justice Puno and Prof. Romero inquired if Article 37 should be retroactive or prospective in application. Justice Diy opined that she was for its retroactivity because it is their answer to the problem of church annulments of marriages, which are still valid under the Civil Law. On the other hand, Justice Reyes and Justice Puno were concerned about the avalanche of cases. Dean Gupit suggested that they put the issue to a vote, which the Committee approved. The members voted as follows: (1) Justice Reyes, Justice Puno and Prof. Romero were for prospectivity. (2) Justice Caguioa, Judge Diy, Dean Gupit, Prof. Bautista and Director Eufemio were for retroactivity. (3) Prof. Baviera abstained.
Justice Caguioa suggested that they put in the prescriptive period of ten years within which the action for declaration of nullity of the marriage should be filed in court. The Committee approved the suggestion. 7

It could well be that, in sum, the Family Code Revision Committee in ultimately deciding to adopt the provision with less specificity than expected, has in fact, so designed the law as to allow some resiliency in its application. Mme. Justice Alicia V. Sempio-Diy, a member of the Code Committee, has been quoted by Mr. Justice Josue N. Bellosillo in Salita vs. Hon. Magtolis (G.R. No. 106429, 13 June 1994); thus: 8 The Committee did not give any examples of psychological incapacity for fear that the giving of examples would limit the applicability of the provision under the principle of ejusdem generis. Rather, the Committee would like the judge to interpret the provision on a case-to-case basis, guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals which, although not binding on the civil courts, may be given persuasive effect since the provision was taken from Canon Law. A part of the provision is similar to Canon 1095 of the New Code of Canon Law, 9 which reads: Canon 1095. They are incapable of contracting marriage: 1. who lack sufficient use of reason; 2. who suffer from a grave defect of discretion of judgment concerning essentila matrimonial rights and duties, to be given and accepted mutually;

3. who for causes of psychological nature are unable to assume the essential obligations of marriage. (Emphasis supplied.) Accordingly, although neither decisive nor even perhaps all that persuasive for having no juridical or secular effect, the jurisprudence under Canon Law prevailing at the time of the code's enactment, nevertheless, cannot be dismissed as impertinent for its value as an aid, at least, to the interpretation or construction of the codal provision. One author, Ladislas Orsy, S.J., in his treaties, Canon 1095 has been framed, states:
10

giving an account on how the third paragraph of

The history of the drafting of this canon does not leave any doubt that the legislator intended, indeed, to broaden the rule. A strict and narrow norm was proposed first: Those who cannot assume the essential obligations of marriage because of a grave psycho-sexual anomaly (ob gravem anomaliam psychosexualem) are unable to contract marriage (cf. SCH/1975, canon 297, a new canon, novus); then a broader one followed: . . . because of a grave psychological anomaly (ob gravem anomaliam psychicam) . . . (cf. SCH/1980, canon 1049); then the same wording was retained in the text submitted to the pope ( cf. SCH/1982, canon 1095, 3); finally, a new version was promulgated: because of causes of a psychological nature (ob causas naturae psychiae). So the progress was from psycho-sexual to psychological anomaly, then the term anomaly was altogether eliminated. it would be, however, incorrect to draw the conclusion that the cause of the incapacity need not be some kind of psychological disorder; after all, normal and healthy person should be able to assume the ordinary obligations of marriage. Fr. Orsy concedes that the term "psychological incapacity" defies any precise definition since psychological causes can be of an infinite variety. In a book, entitled "Canons and Commentaries on Marriage," written by Ignatius Gramunt, Javier Hervada and LeRoy Wauck, the following explanation appears: This incapacity consists of the following: (a) a true inability to commit oneself to the essentials of marriage. Some psychosexual disorders and other disorders of personality can be the psychic cause of this defect, which is here described in legal terms. This particular type of incapacity consists of a real inability to render what is due by the contract. This could be compared to the incapacity of a farmer to enter a binding contract to deliver the crops which he cannot possibly reap; (b) this inability to commit oneself must refer to the essential obligations of marriage: the conjugal act, the community of life and love, the rendering of mutual help, the procreation and

education of offspring; (c) the inability must be tantamount to a psychological abnormality. The mere difficulty of assuming these obligations, which could be overcome by normal effort, obviously does not constitute incapacity. The canon contemplates a true psychological disorder which incapacitates a person from giving what is due (cf. John Paul II, Address to R. Rota, Feb. 5, 1987). However, if the marriage is to be declared invalid under this incapacity, it must be proved not only that the person is afflicted by a psychological defect, but that the defect did in fact deprive the person, at the moment of giving consent, of the ability to assume the essential duties of marriage and consequently of the possibility of being bound by these duties. Justice Sempio-Diy 11 cites with approval the work of Dr. Gerardo Veloso, a former Presiding Judge of the Metropolitan Marriage Tribunal of the Catholic Archdiocese of Manila (Branch 1), who opines that psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability. The incapacity must be grave or serious such that the party would be incapable of carrying out the ordinary duties required in marriage; it must be rooted in the history of the party antedating the marriage, although the overt manifestations may emerge only after the marriage; and it must be incurable or, even if it were otherwise, the cure would be beyond the means of the party involved. It should be obvious, looking at all the foregoing disquisitions, including, and most importantly, the deliberations of the Family Code Revision Committee itself, that the use of the phrase "psychological incapacity" under Article 36 of the Code has not been meant to comprehend all such possible cases of psychoses as, likewise mentioned by some ecclesiastical authorities, extremely low intelligence, immaturity, and like circumstances (cited in Fr. Artemio Baluma's "Void and Voidable Marriages in the Family Code and their Parallels in Canon Law," quoting from the Diagnostic Statistical Manual of Mental Disorder by the American Psychiatric Association; Edward Hudson's "Handbook II for Marriage Nullity Cases"). Article 36 of the Family Code cannot be taken and construed independently of, but must stand in conjunction with, existing precepts in our law on marriage. Thus correlated, "psychological incapacity" should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of "psychological incapacity" to the most serious cases of personality disorders clearly demonstrative of an utter intensitivity or inability to give meaning and significance to the marriage. This pschologic condition must exist at the time the marriage is celebrated. The law does not evidently envision, upon the other hand, an inability of the spouse to have sexual relations with the other. This conclusion is implicit under Article 54 of the Family Code which considers children conceived prior to the judicial declaration of nullity of the void marriage to be "legitimate." The other forms of psychoses, if existing at the inception of marriage, like the state of a party being of unsound mind or concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism, merely renders the marriage contract voidable pursuant to Article 46, Family Code. If drug addiction, habitual alcholism, lesbianism or homosexuality should occur only during the marriage, they become mere grounds for legal separation under Article 55 of the Family Code. These provisions of the Code, however, do not necessarily preclude the possibility of these various circumstances being themselves, depending on the degree and severity of the disorder, indicia of psychological incapacity. Until further statutory and jurisprudential parameters are established, every circumstance that may have some bearing on the degree, extent, and other conditions of that incapacity must, in every

case, be carefully examined and evaluated so that no precipitate and indiscriminate nullity is peremptorily decreed. The well-considered opinions of psychiatrists, psychologists, and persons with expertise in psychological disciplines might be helpful or even desirable. Marriage is not an adventure but a lifetime commitment. We should continue to be reminded that innate in our society, then enshrined in our Civil Code, and even now still indelible in Article 1 of the Family Code, is that Art. 1. Marriage is a special contract of permanent union between a man 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.) Our Constitution is no less emphatic: Sec. 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. (Article XV, 1987 Constitution). The above provisions express so well and so distinctly the basic nucleus of our laws on marriage and the family, and they are doubt the tenets we still hold on to. The factual settings in the case at bench, in no measure at all, can come close to the standards required to decree a nullity of marriage. Undeniably and understandably, Leouel stands aggrieved, even desperate, in his present situation. Regrettably, neither law nor society itself can always provide all the specific answers to every individual problem. WHEREFORE, the petition is DENIED. SO ORDERED. Narvasa, C.J., Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno Kapunan and Mendoza, JJ., concur. Feliciano, J., is on leave.

Separate Opinions

PADILLA, J., dissenting: It is difficult to dissent from a well-written and studied opinion as Mr. Justice Vitug's ponencia. But, after an extended reflection on the facts of this case, I cannot see my way clear into holding, as the

majority do, that there is no ground for the declaration of nullity of the marriage between petitioner and private respondent. To my mind, it is clear that private respondent has been shown to be psychologically incapacitated to comply with at least one essential marital obligation, i.e. that of living and cohabiting with her husband, herein petitioner. On the other hand, it has not been shown that petitioner does not deserve to live and cohabit with his wife, herein private respondent. There appears to be no disagreement that the term "psychological incapacity" defies precision in definition. But, as used in Article 36 of the Family Code as a ground for the declaration of nullity of a marriage, the intent of the framers of the Code is evidently to expand and liberalize the grounds for nullifying a marriage, as well pointed out by Madam Justice Flerida Ruth P. Romero in her separate opinion in this case. While it is true that the board term "psychological incapacity" can open the doors to abuse by couples who may wish to have an easy way out of their marriage, there are, however, enough safeguards against this contingency, among which, is the intervention by the State, through the public prosecutor, to guard against collusion between the parties and/or fabrication of evidence. In their case at bench, it has been abundantly established that private respondent Julia Rosario Bedia-Santos exhibits specific behavior which, to my mind, shows that she is psychologically incapacitated to fulfill her essential marital obligations, to writ: a. It took her seven (7) months after she left for the United States to call up her husband. b. Julia promised to return home after her job contract expired in July 1989, but she never did and neither is there any showing that she informed her husband (herein petitioner) of her whereabouts in the U.S.A. c. When petitioner went to the United States on a mission for the Philippine Army, he exerted efforts to "touch base" with Julia; there were no similar efforts on the part of Julia; there were no similar efforts on the part of Julia to do the same. d. When petitioner filed this suit, more than five (5) years had elapsed, without Julia indicating her plans to rejoin the petitioner or her whereabouts. e. When petitioner filed this case in the trial court, Julia, in her answer, claimed that it is the former who has been irresponsible and incompetent. f. During the trial, Julia waived her right to appear and submit evidence. A spouse's obligation to live and cohabit with his/her partner in marriage is a basic ground rule in marriage, unless there are overpowering compelling reasons such as, for instance, an incurable contagious disease on the part of a spouse or cruelty of one partner, bordering on insanity. There may also be instances when, for economic and practical reasons, husband and wife have to live separately, but the marital bond between the spouses always remains. Mutual love and respect for each other would, in such cases, compel the absent spouse to at least have regular contracts with the other to inform the latter of his/her condition and whereabouts.

In the present case, it is apparent that private respondent Julia Rosario Bedia-Santos has no intention of cohabiting with petitioner, her husband, or maintaining contact with him. In fact, her acts eloquently show that she does not want her husband to know of her whereabouts and neither has she any intention of living and cohabiting with him. To me there appears to be, on the part of private respondent, an unmistakeable indication of psychological incapacity to comply with her essential marital obligations, although these indications were made manifest after the celebration of the marriage. It would be a great injustice, I believe, to petitioner for this Court to give a much too restrictive interpretation of the law and compel the petitioner to continue to be married to a wife who for purposes of fulfilling her marital duties has, for all practical purposes, ceased to exist. Besides, there are public policy considerations involved in the ruling the Court makes today. Is it not, in effect directly or indirectly, facilitating the transformation of petitioner into a "habitual tryster" or one forced to maintain illicit relations with another woman or women with emerging problems of illegitimate children, simply because he is denied by private respondent, his wife, the companionship and conjugal love which he has sought from her and to which he is legally entitled? I do not go as far as to suggest that Art. 36 of the Family Code is a sanction for absolute divorce but I submit that we should not constrict it to non-recognition of its evident purpose and thus deny to one like petitioner, an opportunity to turn a new leaf in his life by declaring his marriage a nullity by reason of his wife's psychological incapacity to perform an essential marital obligation. I therefore vote to GRANT the petition and to DECLARE the marriage between petitioner Leouel Santos and private respondent Julia Rosario Bedia-Santos VOID on the basis of Article 36 of the Family Code. ROMERO, J., concurring: I agree under the circumstances of the case, petitioner is not entitled to have his marriage declared a nullity on the ground of psychological incapacity of private respondent. However, as a member of both the Family Law Revision Committee of the Integrated Bar of the Philippines and the Civil Code Revision Committee of the UP Law Center, I wish to add some observations. The letter 1 dated April 15, 1985 of then Judge Alicia V. Sempio-Diy written in behalf of the Family Law and Civil Code Revision Committee to then Assemblywoman Mercedes CojuangcoTeodoro traced the background of the inclusion of the present Article 36 in the Family Code. During its early meetings, the Family Law Committee had thought of including a chapter on absolute divorce in the draft of a new Family Code (Book I of the Civil Code) that it had been tasked by the IBP and the UP Law Center to prepare. In fact, some members of the Committee were in favor of a no-fault divorce between the spouses after a number of years of separation, legal or de-facto. Justice J.B.L. Reyes was then requested to prepare a proposal for an action for dissolution of marriage and the effects thereof based on two grounds: (a) five continuous years of separation between the spouses, with or without a judicial decree of legal separation, and (b) whenever a married person would have obtained a decree of absolute divorce in another country. Actually, such a proposal is one for absolute divorce but called by another name. Later, even the Civil Code Revision Committee took time to discuss the proposal of Justice Reyes on this matter.

Subsequently, however, when the Civil Code Revision Committee and Family Law Committee started holding joint meetings on the preparation of the draft of the New Family Code, they agreed and formulated the definition of marriage as "a special contract of permanent partnership between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is 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 law." With the above definition, and considering the Christian traditional concept of marriage of the Filipino people as a permanent, inviolable, indissoluble social institution upon which the family and society are founded, and also realizing the strong opposition that any provision on absolute divorce would encounter from the Catholic Church and the Catholic sector of our citizenry to whom the great majority of our people belong, the two Committees in their joint meetings did not pursue the idea of absolute divorce and instead opted for an action for judicial declaration of invalidity of marriage based on grounds available in the Canon Law. It was thought that such an action would not only be an acceptable alternative to divorce but would also solve the nagging problem of church annulments of marriages on grounds not recognized by the civil law of the State. Justice Reyes was thus requested to again prepare a draft of provisions on such action for celebration of invalidity of marriage. Still later, to avoid the overlapping of provisions on void marriages as found in the present Civil Code and those proposed by Justice Reyes on judicial declaration of invalidity of marriage on grounds similar to the Canon Law, the two Committees now working as a Joint Committee in the preparation of a New Family Code decided to consolidate the present provisions on void marriages with the proposals of Justice Reyes. The result was the inclusion of an additional kind of void marriage in the enumeration of void marriages in the present Civil Code, to wit: "(7) Those marriages contracted by any party who, at the time of the celebration, was wanting in the sufficient use of reason or judgment to understand the essential nature of marriage or was psychologically or mentally incapacitated to discharge the essential marital obligations, even if such lack of incapacity is made manifest after the celebration." as well as the following implementing provisions: "Art. 32. The absolute nullity of a marriage may be invoked or pleaded only on the basis of a final judgment declaring the marriage void, without prejudice to the provision of Article 34." "Art. 33. The action or defense for the declaration of the absolute nullity of a marriage shall not prescribe." xxx xxx xxx It is believed that many hopelessly broken marriages in our country today may already dissolved or annulled on the grounds proposed by the Joint Committee on

declaration of nullity as well as annulment of marriages, thus rendering an absolute divorce law unnecessary. In fact, during a conference with Father Gerald Healy of the Ateneo University as well as another meeting with Archbishop Oscar Cruz of the Archdiocese of Pampanga, the Joint Committee was informed that since Vatican II, the Catholic Church has been declaring marriages null and void on the ground of "lack of due discretion" for causes that, in other jurisdictions, would be clear grounds for divorce, like teen-age or premature marriages; marriage to a man who, because of some personality disorder or disturbance, cannot support a family; the foolish or ridiculous choice of a spouse by an otherwise perfectly normal person; marriage to a woman who refuses to cohabit with her husband or who refuses to have children. Bishop Cruz also informed the Committee that they have found out in tribunal work that a lot of machismo among husbands are manifestations of their sociopathic personality anomaly, like inflicting physical violence upon their wives, constitutional indolence or laziness, drug dependence or addiction, and psychological anomaly. . . . (Emphasis supplied) Clearly, by incorporating what is now Article 36 into the Family Code, the Revision Committee referred to above intended to add another ground to those already listed in the Civil Code as grounds for nullifying a marriage, thus expanding or liberalizing the same. Inherent in the inclusion of the provision on psychological incapacity was the understanding that every petition for declaration of nullity based on it should be treated on a case-to-case basis; hence, the absence of a definition and an enumeration of what constitutes psychological incapacity. Moreover, the Committee feared that the giving of examples would limit the applicability of the provision under the principle of ejusdem generis. But the law requires that the same be existing at the time of marriage although it be manifested later. Admittedly, the provision on psychological incapacity, just like any other provision of law, is open to abuse. To prevent this, "the court shall take order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed." 2 Moreover, the judge, in interpreting the provision on a case-to-case basis, must be guided by "experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals which, although not binding on the civil courts, may be given persuasive effect since the provisions was taken from Canon Law." 3 The constitutional and statutory provisions on the family 4 will remain the lodestar which our society will hope to achieve ultimately. Therefore, the inclusion of Article 36 is not to be taken as an abandonment of the ideal which we all cherish. If at all, it is a recognition of the reality that some marriages, by reason of the incapacity of one of the contracting parties, fall short of this ideal; thus, the parties are constrained to find a way of putting an end to their union through some legallyaccepted means. Any criticism directed at the way that judges have interpreted the provision since its enactment as to render it easier for unhappily-married couples to separate is addressed, not to the wisdom of the lawmakers but to the manner by which some members of the Bench have implemented the provision. These are not interchangeable, each being separate and distinct from the other.

Separate Opinions PADILLA, J., dissenting:

It is difficult to dissent from a well-written and studied opinion as Mr. Justice Vitug's ponencia. But, after an extended reflection on the facts of this case, I cannot see my way clear into holding, as the majority do, that there is no ground for the declaration of nullity of the marriage between petitioner and private respondent. To my mind, it is clear that private respondent has been shown to be psychologically incapacitated to comply with at least one essential marital obligation, i.e. that of living and cohabiting with her husband, herein petitioner. On the other hand, it has not been shown that petitioner does not deserve to live and cohabit with his wife, herein private respondent. There appears to be no disagreement that the term "psychological incapacity" defies precision in definition. But, as used in Article 36 of the Family Code as a ground for the declaration of nullity of a marriage, the intent of the framers of the Code is evidently to expand and liberalize the grounds for nullifying a marriage, as well pointed out by Madam Justice Flerida Ruth P. Romero in her separate opinion in this case. While it is true that the board term "psychological incapacity" can open the doors to abuse by couples who may wish to have an easy way out of their marriage, there are, however, enough safeguards against this contingency, among which, is the intervention by the State, through the public prosecutor, to guard against collusion between the parties and/or fabrication of evidence. In their case at bench, it has been abundantly established that private respondent Julia Rosario Bedia-Santos exhibits specific behavior which, to my mind, shows that she is psychologically incapacitated to fulfill her essential marital obligations, to writ: a. It took her seven (7) months after she left for the United States to call up her husband. b. Julia promised to return home after her job contract expired in July 1989, but she never did and neither is there any showing that she informed her husband (herein petitioner) of her whereabouts in the U.S.A. c. When petitioner went to the United States on a mission for the Philippine Army, he exerted efforts to "touch base" with Julia; there were no similar efforts on the part of Julia; there were no similar efforts on the part of Julia to do the same. d. When petitioner filed this suit, more than five (5) years had elapsed, without Julia indicating her plans to rejoin the petitioner or her whereabouts. e. When petitioner filed this case in the trial court, Julia, in her answer, claimed that it is the former who has been irresponsible and incompetent. f. During the trial, Julia waived her right to appear and submit evidence. A spouse's obligation to live and cohabit with his/her partner in marriage is a basic ground rule in marriage, unless there are overpowering compelling reasons such as, for instance, an incurable contagious disease on the part of a spouse or cruelty of one partner, bordering on insanity. There may also be instances when, for economic and practical reasons, husband and wife have to live separately, but the marital bond between the spouses always remains. Mutual love and respect for each other would, in such cases, compel the absent spouse to at least have regular contracts with the other to inform the latter of his/her condition and whereabouts.

In the present case, it is apparent that private respondent Julia Rosario Bedia-Santos has no intention of cohabiting with petitioner, her husband, or maintaining contact with him. In fact, her acts eloquently show that she does not want her husband to know of her whereabouts and neither has she any intention of living and cohabiting with him. To me there appears to be, on the part of private respondent, an unmistakeable indication of psychological incapacity to comply with her essential marital obligations, although these indications were made manifest after the celebration of the marriage. It would be a great injustice, I believe, to petitioner for this Court to give a much too restrictive interpretation of the law and compel the petitioner to continue to be married to a wife who for purposes of fulfilling her marital duties has, for all practical purposes, ceased to exist. Besides, there are public policy considerations involved in the ruling the Court makes today. Is it not, in effect directly or indirectly, facilitating the transformation of petitioner into a "habitual tryster" or one forced to maintain illicit relations with another woman or women with emerging problems of illegitimate children, simply because he is denied by private respondent, his wife, the companionship and conjugal love which he has sought from her and to which he is legally entitled? I do not go as far as to suggest that Art. 36 of the Family Code is a sanction for absolute divorce but I submit that we should not constrict it to non-recognition of its evident purpose and thus deny to one like petitioner, an opportunity to turn a new leaf in his life by declaring his marriage a nullity by reason of his wife's psychological incapacity to perform an essential marital obligation. I therefore vote to GRANT the petition and to DECLARE the marriage between petitioner Leouel Santos and private respondent Julia Rosario Bedia-Santos VOID on the basis of Article 36 of the Family Code. ROMERO, J., concurring: I agree under the circumstances of the case, petitioner is not entitled to have his marriage declared a nullity on the ground of psychological incapacity of private respondent. However, as a member of both the Family Law Revision Committee of the Integrated Bar of the Philippines and the Civil Code Revision Committee of the UP Law Center, I wish to add some observations. The letter 1 dated April 15, 1985 of then Judge Alicia V. Sempio-Diy written in behalf of the Family Law and Civil Code Revision Committee to then Assemblywoman Mercedes CojuangcoTeodoro traced the background of the inclusion of the present Article 36 in the Family Code. During its early meetings, the Family Law Committee had thought of including a chapter on absolute divorce in the draft of a new Family Code (Book I of the Civil Code) that it had been tasked by the IBP and the UP Law Center to prepare. In fact, some members of the Committee were in favor of a no-fault divorce between the spouses after a number of years of separation, legal or de-facto. Justice J.B.L. Reyes was then requested to prepare a proposal for an action for dissolution of marriage and the effects thereof based on two grounds: (a) five continuous years of separation between the spouses, with or without a judicial decree of legal separation, and (b) whenever a married person would have obtained a decree of absolute divorce in another country. Actually, such a proposal is one for absolute divorce but called by another name. Later, even the Civil Code Revision Committee took time to discuss the proposal of Justice Reyes on this matter.

Subsequently, however, when the Civil Code Revision Committee and Family Law Committee started holding joint meetings on the preparation of the draft of the New Family Code, they agreed and formulated the definition of marriage as "a special contract of permanent partnership between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is 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 law." With the above definition, and considering the Christian traditional concept of marriage of the Filipino people as a permanent, inviolable, indissoluble social institution upon which the family and society are founded, and also realizing the strong opposition that any provision on absolute divorce would encounter from the Catholic Church and the Catholic sector of our citizenry to whom the great majority of our people belong, the two Committees in their joint meetings did not pursue the idea of absolute divorce and instead opted for an action for judicial declaration of invalidity of marriage based on grounds available in the Canon Law. It was thought that such an action would not only be an acceptable alternative to divorce but would also solve the nagging problem of church annulments of marriages on grounds not recognized by the civil law of the State. Justice Reyes was thus requested to again prepare a draft of provisions on such action for celebration of invalidity of marriage. Still later, to avoid the overlapping of provisions on void marriages as found in the present Civil Code and those proposed by Justice Reyes on judicial declaration of invalidity of marriage on grounds similar to the Canon Law, the two Committees now working as a Joint Committee in the preparation of a New Family Code decided to consolidate the present provisions on void marriages with the proposals of Justice Reyes. The result was the inclusion of an additional kind of void marriage in the enumeration of void marriages in the present Civil Code, to wit: "(7) Those marriages contracted by any party who, at the time of the celebration, was wanting in the sufficient use of reason or judgment to understand the essential nature of marriage or was psychologically or mentally incapacitated to discharge the essential marital obligations, even if such lack of incapacity is made manifest after the celebration." as well as the following implementing provisions: "Art. 32. The absolute nullity of a marriage may be invoked or pleaded only on the basis of a final judgment declaring the marriage void, without prejudice to the provision of Article 34." "Art. 33. The action or defense for the declaration of the absolute nullity of a marriage shall not prescribe." xxx xxx xxx It is believed that many hopelessly broken marriages in our country today may already dissolved or annulled on the grounds proposed by the Joint Committee on

declaration of nullity as well as annulment of marriages, thus rendering an absolute divorce law unnecessary. In fact, during a conference with Father Gerald Healy of the Ateneo University as well as another meeting with Archbishop Oscar Cruz of the Archdiocese of Pampanga, the Joint Committee was informed that since Vatican II, the Catholic Church has been declaring marriages null and void on the ground of "lack of due discretion" for causes that, in other jurisdictions, would be clear grounds for divorce, like teen-age or premature marriages; marriage to a man who, because of some personality disorder or disturbance, cannot support a family; the foolish or ridiculous choice of a spouse by an otherwise perfectly normal person; marriage to a woman who refuses to cohabit with her husband or who refuses to have children. Bishop Cruz also informed the Committee that they have found out in tribunal work that a lot of machismo among husbands are manifestations of their sociopathic personality anomaly, like inflicting physical violence upon their wives, constitutional indolence or laziness, drug dependence or addiction, and psychological anomaly. . . . (Emphasis supplied) Clearly, by incorporating what is now Article 36 into the Family Code, the Revision Committee referred to above intended to add another ground to those already listed in the Civil Code as grounds for nullifying a marriage, thus expanding or liberalizing the same. Inherent in the inclusion of the provision on psychological incapacity was the understanding that every petition for declaration of nullity based on it should be treated on a case-to-case basis; hence, the absence of a definition and an enumeration of what constitutes psychological incapacity. Moreover, the Committee feared that the giving of examples would limit the applicability of the provision under the principle of ejusdem generis. But the law requires that the same be existing at the time of marriage although it be manifested later. Admittedly, the provision on psychological incapacity, just like any other provision of law, is open to abuse. To prevent this, "the court shall take order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed." 2 Moreover, the judge, in interpreting the provision on a case-to-case basis, must be guided by "experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals which, although not binding on the civil courts, may be given persuasive effect since the provisions was taken from Canon Law." 3 The constitutional and statutory provisions on the family 4 will remain the lodestar which our society will hope to achieve ultimately. Therefore, the inclusion of Article 36 is not to be taken as an abandonment of the ideal which we all cherish. If at all, it is a recognition of the reality that some marriages, by reason of the incapacity of one of the contracting parties, fall short of this ideal; thus, the parties are constrained to find a way of putting an end to their union through some legallyaccepted means. Any criticism directed at the way that judges have interpreted the provision since its enactment as to render it easier for unhappily-married couples to separate is addressed, not to the wisdom of the lawmakers but to the manner by which some members of the Bench have implemented the provision. These are not interchangeable, each being separate and distinct from the other.

EN BANC

G.R. No. 108763 February 13, 1997 REPUBLIC OF THE PHILIPPINES, vs. COURT OF APPEALS and RORIDEL OLAVIANO MOLINA, respondents.

PANGANIBAN, J.: The Family Code of the Philippines provides an entirely new ground (in addition to those enumerated in the Civil Code) to assail the validity of a marriage, namely, "psychological incapacity." Since the Code's effectivity, our courts have been swamped with various petitions to declare marriages void based on this ground. Although this Court had interpreted the meaning of psychological incapacity in the recent case of Santos vs. Court of Appeals, still many judges and lawyers find difficulty in applying said novel provision in specific cases. In the present case and in the context of the herein assailed Decision of the Court of Appeals, the Solicitor General has labelled exaggerated to be sure but nonetheless expressive of his frustration Article 36 as the "most liberal divorce procedure in the world." Hence, this Court in addition to resolving the present case, finds the need to lay down specific guidelines in the interpretation and application of Article 36 of the Family Code. Before us is a petition for review on certiorari under Rule 45 challenging the January 25, 1993 Decision1 of the Court of Appeals 2 in CA-G.R. CV No. 34858 affirming in toto the May 14, 1991 decision of the Regional Trial Court of La Trinidad, 3 Benguet, which declared the marriage of respondent Roridel Olaviano Molina to Reynaldo Molina void ab initio, on the ground of "psychological incapacity" under Article 36 of the Family Code. The Facts This case was commenced on August 16, 1990 with the filing by respondent Roridel O. Molina of a verified petition for declaration of nullity of her marriage to Reynaldo Molina. Essentially, the petition alleged that Roridel and Reynaldo were married on April 14, 1985 at the San Agustin Church 4 in Manila; that a son, Andre O. Molina was born; that after a year of marriage, Reynaldo showed signs of "immaturity and irresponsibility" as a husband and a father since he preferred to spend more time with his peers and friends on whom he squandered his money; that he depended on his parents for aid and assistance, and was never honest with his wife in regard to their finances, resulting in frequent quarrels between them; that sometime in February 1986, Reynaldo was relieved of his job in Manila, and since then Roridel had been the sole breadwinner of the family; that in October 1986 the couple had a very intense quarrel, as a result of which their relationship was estranged; that in March 1987, Roridel resigned from her job in Manila and went to live with her parents in Baguio City; that a few weeks later, Reynaldo left Roridel and their child, and had since then abandoned them; that Reynaldo had thus shown that he was psychologically incapable of complying with essential marital obligations and was a highly immature and habitually quarrel some individual who thought of himself as a king to be served; and that it would be to the couple's best interest to have their marriage declared null and void in order to free them from what appeared to be an incompatible marriage from the start. In his Answer filed on August 28, 1989, Reynaldo admitted that he and Roridel could no longer live together as husband and wife, but contended that their misunderstandings and frequent quarrels were due to (1) Roridel's strange behavior of insisting on maintaining her

group of friends even after their marriage; (2) Roridel's refusal to perform some of her marital duties such as cooking meals; and (3) Roridel's failure to run the household and handle their finances. During the pre-trial on October 17, 1990, the following were stipulated: 1. That the parties herein were legally married on April 14, 1985 at the Church of St. Augustine, Manila; 2. That out of their marriage, a child named Albert Andre Olaviano Molina was born on July 29, 1986; 3. That the parties are separated-in-fact for more than three years; 4. That petitioner is not asking support for her and her child; 5. That the respondent is not asking for damages; 6. That the common child of the parties is in the custody of the petitioner wife. Evidence for herein respondent wife consisted of her own testimony and that of her friends Rosemarie Ventura and Maria Leonora Padilla as well as of Ruth G. Lalas, a social worker, and of Dr. Teresita Hidalgo-Sison, a psychiatrist of the Baguio General Hospital and Medical Center. She also submitted documents marked as Exhibits "A" to "E-1." Reynaldo did not present any evidence as he appeared only during the pre-trial conference. On May 14, 1991, the trial court rendered judgment declaring the marriage void. The appeal of petitioner was denied by the Court of Appeals which affirmed in toto the RTC's decision. Hence, the present recourse. The Issue In his petition, the Solicitor General insists that "the Court of Appeals made an erroneous and incorrect interpretation of the phrase 'psychological incapacity' (as provided under Art. 36 of the Family Code) and made an incorrect application thereof to the facts of the case," adding that the appealed Decision tended "to establish in effect the most liberal divorce procedure in the world which is anathema to our culture." In denying the Solicitor General's appeal, the respondent Court relied 5 heavily on the trial court's findings "that the marriage between the parties broke up because of their opposing and conflicting personalities." Then, it added it sown opinion that "the Civil Code Revision Committee (hereinafter referred to as Committee) intended to liberalize the application of our civil laws on personal and family rights. . . ." It concluded that: As ground for annulment of marriage, We view psychologically incapacity as a broad range of mental and behavioral conduct on the part of one spouse indicative of how he or she regards the marital union, his or her personal relationship with the other spouse, as well as his or her conduct in the long haul for the attainment of the principal objectives of marriage. If said conduct, observed and considered as a whole, tends to cause the union to self-destruct

because it defeats the very objectives of marriage, then there is enough reason to leave the spouses to their individual fates. In the case at bar, We find that the trial judge committed no indiscretion in analyzing and deciding the instant case, as it did, hence, We find no cogent reason to disturb the findings and conclusions thus made. Respondent, in her Memorandum, adopts these discussions of the Court of Appeals. The petitioner, on the other hand, argues that "opposing and conflicting personalities" is not equivalent to psychological incapacity, explaining that such ground "is not simply the neglect by the parties to the marriage of their responsibilities and duties, but a defect in their psychological nature which renders them incapable of performing such marital responsibilities and duties." The Court's Ruling The petition is meritorious. In Leouel Santos vs. Court of Appeals 6 this Court, speaking thru Mr. Justice Jose C. Vitug, ruled that "psychological incapacity should refer to no less than a mental (nor physical) incapacity . . . and that (t)here is hardly any doubt that the intendment of the law has been to confine the meaning of 'psychological incapacity' to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. This psychologic condition must exist at the time the marriage is celebrated." Citing Dr. Gerardo Veloso, a former presiding judge of the Metropolitan Marriage Tribunal of the Catholic Archdiocese of Manila, 7 Justice Vitug wrote that "the psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability." On the other hand, in the present case, there is no clear showing to us that the psychological defect spoken of is an incapacity. It appears to us to be more of a "difficulty," if not outright "refusal" or "neglect" in the performance of some marital obligations. Mere showing of "irreconciliable differences" and "conflicting personalities" in no wise constitutes psychological incapacity. It is not enough to prove that the parties failed to meet their responsibilities and duties as married persons; it is essential that they must be shown to be incapable of doing so, due to some psychological (nor physical) illness. The evidence adduced by respondent merely showed that she and her husband could nor get along with each other. There had been no showing of the gravity of the problem; neither its juridical antecedence nor its incurability. The expert testimony of Dr. Sison showed no incurable psychiatric disorder but only incompatibility, not psychological incapacity. Dr. Sison testified: 8 COURT Q It is therefore the recommendation of the psychiatrist based on your findings that it is better for the Court to annul (sic) the marriage? A Yes, Your Honor.

Q There is no hope for the marriage? A There is no hope, the man is also living with another woman. Q Is it also the stand of the psychiatrist that the parties are psychologically unfit for each other but they are psychologically fit with other parties? A Yes, Your Honor. Q Neither are they psychologically unfit for their professions? A Yes, Your Honor. The Court has no more questions. In the case of Reynaldo, there is no showing that his alleged personality traits were constitutive of psychological incapacity existing at the time of marriage celebration. While some effort was made to prove that there was a failure to fulfill pre-nuptial impressions of "thoughtfulness and gentleness" on Reynaldo's part of being "conservative, homely and intelligent" on the part of Roridel, such failure of expectation is nor indicative of antecedent psychological incapacity. If at all, it merely shows love's temporary blindness to the faults and blemishes of the beloved. During its deliberations, the Court decided to go beyond merely ruling on the facts of this case vis-a-vis existing law and jurisprudence. In view of the novelty of Art. 36 of the Family Code and the difficulty experienced by many trial courts interpreting and applying it, the Court decided to invite two amici curiae, namely, the Most Reverend Oscar V. Cruz, 9 Vicar Judicial (Presiding Judge) of the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, and Justice Ricardo C. Puno,10 a member of the Family Code Revision Committee. The Court takes this occasion to thank these friends of the Court for their informative and interesting discussions during the oral argument on December 3, 1996, which they followed up with written memoranda. From their submissions and the Court's own deliberations, the following guidelines in the interpretation and application of Art. 36 of the Family Code are hereby handed down for the guidance of the bench and the bar: (1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an entire Article on the Family, 11 recognizing it "as the foundation of the nation." It decrees marriage as legally "inviolable," thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be "protected" by the state. The Family Code 12 echoes this constitutional edict on marriage and the family and emphasizes thepermanence, inviolability and solidarity (2) The root cause of the psychological incapacity must be (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly

explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological not physical. although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or physically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle of ejusdem generis, 13 nevertheless such root cause must be identified as a psychological illness and its incapacitating nature explained. Expert evidence may be given qualified psychiatrist and clinical psychologists. (3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage. The evidence must show that the illness was existing when the parties exchanged their "I do's." The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto. (4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses of children and prescribing medicine to cure them but may not be psychologically capacitated to procreate, bear and raise his/her own children as an essential obligation of marriage. (5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, "mild characteriological peculiarities, mood changes, occasional emotional outbursts" cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, nor a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage. (6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision. (7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. It is clear that Article 36 was taken by the Family Code Revision Committee from Canon 1095 of the New Code of Canon Law, which became effective in 1983 and which provides:
The following are incapable of contracting marriage: Those who are unable to assume the essential obligations of marriage due to causes of psychological nature. 14

Since the purpose of including such provision in our Family Code is to harmonize our civil laws with the religious faith of our people, it stands to reason that to achieve such harmonization, great persuasive weight should be given to decision of such appellate

tribunal. Ideally subject to our law on evidence what is decreed as canonically invalid should also be decreed civilly void. This is one instance where, in view of the evident source and purpose of the Family Code provision, contemporaneous religious interpretation is to be given persuasive effect. Here, the State and the Church while remaining independent, separate and apart from each other shall walk together in synodal cadence towards the same goal of protecting and cherishing marriage and the family as the inviolable base of the nation. (8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall he handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly staring therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095. In the instant case and applying Leouel Santos, we have already ruled to grant the petition. Such ruling becomes even more cogent with the use of the foregoing guidelines. WHEREFORE, the petition is GRANTED. The assailed Decision is REVERSED and SET ASIDE. The marriage of Roridel Olaviano to Reynaldo Molina subsists and remains valid. SO ORDERED. Narvasa, C.J., Davide, Jr., Bellosillo, Melo, Puno Francisco, Hermosisima, Jr., and Torres, Jr., JJ., concur. Regalado, Kapunan and Mendoza, JJ., concurs in the result.

Separate Opinions

PADILLA, J., concuring opinion: I concur in the result of the decision penned by Mr. Justice Panganiban but only because of the peculiar facts of the case. As to whether or not the psychological incapacity exists in a given case calling for annulment of a marriage, depends crucially, more than in any field of the law, on the facts of the case. In Leouel Santos v. Court of Appeals and Julia RosarioBedia Santos, G.R. No. 112019, 4 January 1995, 240 SCRA 20-36, I maintained, and I still maintain, that there was psychological incapacity on the part of the wife to discharge the duties of a wife in a valid marriage. The facts of the present case, after an indepth study, do not support a similar conclusion. Obviously, each case must be judged, not on the basis of a priori assumptions, predilections or generalizations but according to its own facts. In the field of psychological incapacity as a ground for annulment of marriage, it is trite to say that no case is on "all fours" with another case. The trial judge must take pains in examining the actual millieu and the appellate court must, as much as possible, avoid substituting its own judgment for that of the trial court.

ROMERO, J., separate opinion: The majority opinion, overturning that of the Court of Appeals which affirmed the Regional Trial Court ruling. upheld petitioner Solicitor General's position that "opposing and conflicting personalities" is not equivalent to psychological incapacity, for the latter "is not simply the neglect by the parties to the marriage of their responsibilities and duties, but a defect in their Psychological nature which renders them incapable of performing such marital responsibilities and duties. In the present case, the alleged personality traits of Reynaldo, the husband, did not constitute so much "psychological incapacity" as a "difficulty," if not outright "refusal" or "neglect" in the performance of some marital obligations. "It is not enough to prove that the parties failed to meet their responsibilities and duties as married persons; it is essential that they must be shown to be incapableof doing so, due to some psychological (not physical) illness." I would add that neither should the incapacity be the result of mental illness. For if it were due to insanity or defects in the mental faculties short of insanity, there is a resultant defect of vice of consent, thus rendering the marriage annulable under Art. 45 of the Family Code. That the intent of the members of the U.P. Law Center's Civil Code Revision Committee was to excludemental inability to understand the essential nature of marriage and focus strictly on psychological incapacity is demonstrated in the way the provision in question underwent revisions. At the Committee meeting of July 26, 1986, the draft provision read: (7) Those marriages contracted by any party who, at the time of the celebration, was wanting in the sufficient use of reason or judgment to understand the essential nature of marriage or was psychologically or mentally incapacitated to discharge the essential marital obligations, even if such lack of incapacity is made manifest after the celebration. The twists and turns which the ensuing discussion took finally produced the following revised provision even before the session was over: (7) That contracted by any party who, at the time of the celebration, was psychologically incapacitated to discharge the essential marital obligations, even if such lack or incapacity becomes manifest after the celebration. Noticeably, the immediately preceding formulation above has dropped any reference to "wanting in the sufficient use of reason or judgment to understand the essential nature or marriage" and to "mentally incapacitated." It was explained that these phrases refer to "defects in the mental faculties vitiating consent, which is not the idea . . . but lack of appreciation of one's marital obligation." There being a defect in consent, "it is clear that it should be a ground for voidable marriage because there is the appearance of consent and it is capable of convalidation for the simple reason that there are lucid intervals and there are sanity is curable. . . . Psychological incapacity does not refer to mental faculties and has nothing to do with consent; it refers to obligations attendant to marriage." 1

My own position as a member of the Committee then was that psychological incapacity is, in a sense, insanity of a lesser degree. As to the proposal of Justice Caguioa to use the term "psychological or mental impotence," Archbishop Oscar Cruz opined in he earlier February 9, 1984 session that this term "is an invention of some churchmen who are moralists but not canonists, that is why it is considered a weak phrase." He said that the Code of Canon Law would rather express it as "psychological or mental incapacity to discharge. . . ." Justice Ricardo C. Puno opined that sometimes a person may be psychologically impotent with one but not with another. One of the guidelines enumerated in the majority opinion for the interpretation and application of Art. 36 is: "Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex." The Committee, through Prof. Araceli T. Barrera, considered the inclusion of the phrase" and is incurable" but Prof. Esteban B. Bautista commented that this would give rise to the question of how they will determine curability and Justice Caguioa agreed that it would be more problematic. Yet the possibility that one may be cured after the psychological incapacity becomes manifest after the marriage was not ruled out by Justice Puno and Justice Alice Sempio-Diy. Justice Caguioa suggested that the remedy was to allow the afflicted spouse to remarry. For clarity, the Committee classified the bases for determining void marriages, viz: 1. lack of one or more of the essential requisites of marriage as contract; 2. reasons of public policy; 3. special cases and special situations. The ground of psychological incapacity was subsumed under "special cases and special situations," hence its special treatment in Art. 36 in the Family Code as finally enacted. Nowhere in the Civil Code provisions on Marriage is there a ground for avoiding or annulling marriages that even comes close to being psychological in nature. Where consent is vitiated due to circumstances existing at the time of the marriage, such marriage which stands valid until annulled is capable of ratification or convalidation. On the other hand, for reasons of public policy or lack of essential requisites, some marriages are void from the beginning. With the revision of Book I of the Civil Code, particularly the provisions on Marriage, the drafters, now open to fresh winds of change in keeping with the more permissive mores and practices of the time, took a leaf from the relatively liberal provisions of Canon Law. Canon 1095 which states, inter alia, that the following persons are incapable of contracting marriage: "3. (those) who, because of causes of a psychological nature, are unable to

assume the essential obligations of marriage" provided the model for what is now Art. 36 of the Family Code: "A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. It bears stressing that unlike in Civil Law, Canon Law recognizes only two types of marriages with respect to their validity: valid and void. Civil Law, however, recognizes an intermediate state, the voidable or annullable marriages. When the Ecclesiastical Tribunal "annuls" a marriage, it actually declares the marriage null and void, i.e., it never really existed in the first place, for a valid sacramental marriage can never be dissolved. Hence, a properly performed and consummated marriage between two living Roman Catholics can only be nullified by the formal annulment process which entails a full tribunal procedure with a Court selection and a formal hearing. Such so-called church "annulments" are not recognized by Civil Law as severing the marriage ties as to capacitate the parties to enter lawfully into another marriage. The grounds for nullifying civil marriage, not being congruent with those laid down by Canon Law, the former being more strict, quite a number of married couples have found themselves in limbo freed from the marriage bonds in the eyes of the Catholic Church but yet unable to contract a valid civil marriage under state laws. Heedless of civil law sanctions, some persons contract new marriages or enter into live-in relationships. It was precisely to provide a satisfactory solution to such anomalous situations that the Civil Law Revision Committee decided to engraft the Canon Law concept of psychological incapacity into the Family Code and classified the same as a ground for declaring marriages void ab initio or totally in existent from the beginning. A brief historical note on the Old Canon Law (1917). This Old Code, while it did not provide directly for psychological incapacity, in effect recognized the same indirectly from a combination of three old canons: "Canon #1081 required persons to 'be capable according to law' in order to give valid consent; Canon #1082 required that persons 'be at least not ignorant' of the major elements required in marriage; and Canon #1087 (the force and fear category) required that internal and external freedom be present in order for consent to be valid. This line of interpretation produced two distinct but related grounds for annulment, called 'lack of due discretion' and 'lack of due competence.' Lack of due discretion means that the person did not have the ability to give valid consent at the time of the weddingand therefore the union is invalid. Lack of due competence means that the person was incapable of carrying out the obligations of the promise he or she made during the wedding ceremony . "Favorable annulment decisions by the Roman Rota in the 1950s and 1960s involving sexual disorders such as homosexuality and nymphomania laid the foundation for a broader approach to the kind of proof necessary for psychological grounds for annulment. The Rota had reasoned for the first time in several cases that the capacity to give valid consent at the time of marriage was probably not present in persons who had displayed such problems shortly after the marriage. The nature of this change was nothing short of revolutionary. Once the Rota itself had demonstrated a cautious willingness to use this kind of hindsight, the way was paved for what came after 1970. Diocesan Tribunals began to accept proof of serious psychological problems that manifested themselves shortly after the ceremony as proof of an inability to give valid consent at the time of the ceremony . Furthermore, and equally significant, the professional opinion of a psychological expert became increasingly important in such cases. Data about the person's entire life, both before

and after the ceremony, were presented to these experts and they were asked to give professional opinions about a party's mental at the time of the wedding. These opinions were rarely challenged and tended to be accepted as decisive evidence of lack of valid consent. The Church took pains to point out that its new openness in this area did not amount to the addition of new grounds for annulment, but rather was an accommodation by the Church to the advances made in psychology during the past decades. There was now the expertise to provide the all-important connecting link between a marriage breakdown and premarital causes. During the 1970s, the Church broadened its whole idea of marriage from that of a legal contract to that of a covenant. The result of this was that it could no longer be assumed in annulment cases that a person who could intellectually understand the concept of marriage could necessarily give valid consent to marry. The ability to both grasp and assume the real obligations of a mature, lifelong commitment are now considered a necessary prerequisite to valid matrimonial consent. 2 Rotal decisions continued applying the concept of incipient psychological incapacity, "not only to sexual anomalies but to all kinds of personality disorders that incapacitate a spouse or both spouses from assuming or carrying out the essential obligations of marriage. For marriage . . . is not merely cohabitation or the right of the spouses to each others' body for heterosexual acts, but is, in its totality, the right to the community of the whole of life, i.e., the right to a developing. lifelong relationship. Rotal decisions since 1973 have refined the meaning of psychological or psychic capacity for marriage as presupposing the development of an adult personality; as meaning the capacity of the spouses to give themselves to each other and to accept the other as a distinct person; that the spouses must be 'other oriented' since the obligations of marriage are rooted in a self-giving love; and that the spouses must have the capacity for interpersonal relationship because marriage is more than just a physical reality but involves a true intertwining of personalities. The fulfillment of the obligations of marriage depends. according to Church decisions, on the strength of this interpersonal relationship. A serious incapacity for interpersonal sharing and support is held to impair the relationship and consequently, the ability to fulfill the essential marital obligations. The marital capacity of one spouse is not considered in isolation but in reference to the fundamental relationship to the other spouse. 3 Fr. Green, in an article in Catholic Mind, lists six elements necessary to the mature marital relationship: The courts consider the following elements crucial to the marital commitment: (1) a permanent and faithful commitment to the marriage partner; (2) openness to children and partner; (3) stability; (4) emotional maturity; (5) financial responsibility; (6) an ability to cope with the ordinary stresses and strains of marriage, etc. Fr. Green goes on to speak about some of the psychological conditions that might lead to the failure of a marriage: At stake is a type of constitutional impairment precluding conjugal communion even with the best intentions of the parties. Among the psychic factors possibly giving rise to his or her inability to fulfill marital obligations are the following: (1) antisocial personality with its fundamental lack of loyalty to persons or sense of moral values; (2) hyperesthesia, where the individual has

no real freedom of sexual choice; (3) the inadequate personality where personal responses consistently fallshort of reasonable expectations. xxx xxx xxx The psychological grounds are the best approach for anyone who doubts whether he or she has a case for an annulment on any other terms. A situation that does not fit into any of the more traditional categories often fits very easily into the psychological category.
As new as the psychological grounds are, experts are already detecting a shift in their use. Whereas originally the emphasis was on the parties' inability to exercise proper judgment at the time of the marriage (lack of due discretion), recent cases seem to be concentrating on the parties' to assume or carry out their responsibilities an obligations as promised (lack of due competence). An advantage to using the ground of lack of due competence is that the at the time the marriage was entered intocivil divorce and breakup of the family almost is of someone's failure out marital responsibilities as promised at the time the marriage was entered into. 4

In the instant case, "opposing and conflicting personalities" of the spouses were not considered equivalent to psychological incapacity. As well in Santos v. Court of Appeals cited in the ponencia, the Court held that the failure of the wife to return home from the U.S. or to communicate with her husband for more then five years is not proof of her psychological incapacity as to render the marriage a nullity. 5 Therefore, Art. 36 is inapplicable and the marriages remain valid and subsisting. However in the recent case of Chi Ming Tsoi v. Court of Appeals, 6 this Court upheld both the Regional Trial Court and the Court of Appeals in declaring the presence of psychological incapacity on the part of the husband. Said petitioner husband, after ten (10) months' sleeping with his wife never had coitus with her, a fact he did not deny but he alleged that it was due to the physical disorder of his wife which, however, he failed to prove. Goaded by the indifference and stubborn refusal of her husband to fulfill a basic marital obligation described as "to procreate children based on the universal principle that procreation of children through sexual cooperation is the basic end of marriage," the wife brought the action in the lower court to declare the marriage null. The Court, quoting Dr. Gerardo Veloso, a former Presiding Judge of the Metropolitan Marriage Tribunal of the Catholic Archdiocese of Manila (Branch I) on Psychological incapacity concluded: If a spouse, although physically capable but simply refuses to perform his or her essential marriage obligations, and the refusal is senseless and constant, Catholic marriage tribunals attribute the causes to psychological incapacity than to stubborn refusal.Senseless and protracted refusal is equivalent to psychological incapacity. Thus, the prolonged refusal of a spouse to have sexual intercourse with his or her spouse is considered a sign of psychological incapacity. We declared:

This Court, finding the gravity of the failed relationship in which the parties found themselves trapped in its mire of unfulfilled vows and unconsummated marital obligations, can do no less but sustain the studied judgment of respondent appellate court. 1 concur with the majority opinion that the herein marriage remains valid and subsisting absent psychological incapacity (under Art. 36 of the Family Code) on the part of either or both of the spouses.

VITUG, J., concurring: I fully concur with my esteemed 'colleague Mr. Justice Artemio V. Panganiban in his ponencia, and I find to be most helpful the guidelines that he prepared for the bench and the bar in the proper appreciation of Article 36 of Executive Order No. 209 ("The Family Code of the Philippines"). The term "psychological incapacity" was neither defined nor exemplified by the Family Code. Thus Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. The Revision Committee, constituted under the auspices of the U.P. Law Center, which drafted the Code explained:
(T)he Committee would like the judge to interpret the provision on a case-to-case basis, guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals which, although not binding on the civil courts, may be given persuasive effect since the provision was taken from Canon Law. 1

Article 36 of the Family Code was concededly taken from Canon 1095 of the New Code of Canon Law Canon 1095. (The following persons) are incapable of contracting marriage; (those) 1. who lack sufficient use of reason; 2. who suffer from a grave defect of discretion of judgment concerning essential matrimonial rights and duties, to be given and accepted mutually; 3. who for causes of psychological nature are unable to assume the essential obligations of marriage that should give that much value to Canon Law jurisprudence as an aid to the interpretation and construction of the statutory enactment. 2 The principles in the proper application of the law teach us that the several provisions of a Code must be read like a congruent whole. Thus, in determining the import of "psychological

incapacity" under Article 36, one must also read it along with, albeit to be taken as distinct from, the other grounds enumerated in the Code, like Articles 35, 37, 38 and 41 that would likewise, but for distinct reasons, render the marriage merely voidable, or Article 55 that could justify a petition for legal separation. Care must be observed so that these various circumstances are not applied so indiscriminately as if the law were indifferent on the matter. I would wish to reiterate the Court's' statement in Santos vs. Court of Appeals; 3 viz: (T)he use of the phrase "psychological incapacity" under Article 36 of the Code has not been meant to comprehend all such possible cases of psychoses as, likewise mentioned by some ecclesiastical authorities, extremely low intelligence, immaturity, and like circumstances. . . Article 36 of the Family Code cannot be taken and construed independently of, but must stand in conjunction with, existing precepts in our law on marriage. Thus correlated, "psychological incapacity" should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of "psychological incapacity" to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability of the spouse to have sexual relations with the other. This conclusion is implicit under Article 54 of the Family Code which considers children conceived prior to the judicial declaration of nullity of the void marriage to be "legitimate."
The other forms of psychoses, if existing at the inception of marriage, like the state of a party being of unsound mind or concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism, merely renders the marriage contract voidable pursuant to Article 46, Family Code. If drug addiction, habitual alcoholism, lesbianism or homosexuality should occur only during the marriage, they become mere grounds for legal separation under Article 55 of the Family Code. These provisions of the Code, however, do not necessarily preclude the possibility of these various circumstances being themselves, depending on the degree and severity of the disorder, indicia of psychological incapacity. 4

In fine, the term "psychological incapacity," to be a ground for then nullity of marriage under Article 36 of the Family Code, must be able to pass the following tests; viz: First, the incapacity must be psychological or mental, not physical, in nature; Second, the psychological incapacity must relate to the inability, not mere refusal, to understand, assume end discharge the basic marital obligations of living together, observing love, respect and fidelity and rendering mutual help and support; Third, the psychologic condition must exist at the time the marriage is contracted although its overt manifestations and the marriage may occur only thereafter; and Fourth, the mental disorder must be grave or serious and incurable.

It may well be that the Family Code Revision Committee has envisioned Article 36, as not a few observers would suspect, as another form of absolute divorce or, as still others would also put it, to be a alternative to divorce; however, the fact still remains that the language of the law has failed to carry out, even if true, any such intendment. It might have indeed turned out for the better, if it were otherwise, there could be good reasons to doubt the constitutionality of the measure. The fundamental law itself, no less, has laid down in terse language its unequivocal command on how the State should regard marriage and the family, thus Section 2, Article XV: Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. Section 12, Article II: Sec. 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution . . . . Section 1, Article XV: Sec. 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. (The 1987 Constitution) The case of Marcelino vs. Cruz, 121 SCRA 51, might here be significant not so much for the specific issue there resolved but for the tone it has set. The Court there has held that constitutional provisions are to be considered mandatory unless by necessary implication, a different intention is manifest such that to have them enforced strictly would cause more harm than by disregarding them. It is quite clear to me that the constitutional mandate on marriage and the family has not been meant to be simply directory in character, nor for mere expediency or convenience, but one that demands a meaningful, not half-hearted, respect.

Separate Opinions PADILLA, J., concuring opinion: I concur in the result of the decision penned by Mr. Justice Panganiban but only because of the peculiar facts of the case. As to whether or not the psychological incapacity exists in a given case calling for annulment of a marriage, depends crucially, more than in any field of the law, on the facts of the case. In Leouel Santos v. Court of Appeals and Julia RosarioBedia Santos, G.R. No. 112019, 4 January 1995, 240 SCRA 20-36, I maintained, and I still maintain, that there was psychological incapacity on the part of the wife to discharge the duties of a wife in a valid marriage. The facts of the present case, after an indepth study, do not support a similar conclusion. Obviously, each case must be judged, not on the basis of a priori assumptions, predilections or generalizations but according to its own facts. In the field of psychological incapacity as a ground for annulment of marriage, it is trite to say that no case is on "all fours" with another case. The trial judge must take pains in examining the

actual millieu and the appellate court must, as much as possible, avoid substituting its own judgment for that of the trial court. ROMERO, J., separate opinion: The majority opinion, overturning that of the Court of Appeals which affirmed the Regional Trial Court ruling. upheld petitioner Solicitor General's position that "opposing and conflicting personalities" is not equivalent to psychological incapacity, for the latter "is not simply the neglect by the parties to the marriage of their responsibilities and duties, but a defect in their Psychological nature which renders them incapable of performing such marital responsibilities and duties. In the present case, the alleged personality traits of Reynaldo, the husband, did not constitute so much "psychological incapacity" as a "difficulty," if not outright "refusal" or "neglect" in the performance of some marital obligations. "It is not enough to prove that the parties failed to meet their responsibilities and duties as married persons; it is essential that they must be shown to be incapableof doing so, due to some psychological (not physical) illness." I would add that neither should the incapacity be the result of mental illness. For if it were due to insanity or defects in the mental faculties short of insanity, there is a resultant defect of vice of consent, thus rendering the marriage annulable under Art. 45 of the Family Code. That the intent of the members of the U.P. Law Center's Civil Code Revision Committee was to excludemental inability to understand the essential nature of marriage and focus strictly on psychological incapacity is demonstrated in the way the provision in question underwent revisions. At the Committee meeting of July 26, 1986, the draft provision read: (7) Those marriages contracted by any party who, at the time of the celebration, was wanting in the sufficient use of reason or judgment to understand the essential nature of marriage or was psychologically or mentally incapacitated to discharge the essential marital obligations, even if such lack of incapacity is made manifest after the celebration. The twists and turns which the ensuing discussion took finally produced the following revised provision even before the session was over: (7) That contracted by any party who, at the time of the celebration, was psychologically incapacitated to discharge the essential marital obligations, even if such lack or incapacity becomes manifest after the celebration. Noticeably, the immediately preceding formulation above has dropped any reference to "wanting in the sufficient use of reason or judgment to understand the essential nature or marriage" and to "mentally incapacitated." It was explained that these phrases refer to "defects in the mental faculties vitiating consent, which is not the idea . . . but lack of appreciation of one's marital obligation." There being a defect in consent, "it is clear that it should be a ground for voidable marriage because there is the appearance of consent and it is capable of convalidation for the simple reason that there are lucid intervals and there are sanity is curable. . . . Psychological incapacity does not refer to mental faculties and has

nothing to do with consent; it refers to obligations attendant to marriage." 1 My own position as a member of the Committee then was that psychological incapacity is, in a sense, insanity of a lesser degree. As to the proposal of Justice Caguioa to use the term "psychological or mental impotence," Archbishop Oscar Cruz opined in he earlier February 9, 1984 session that this term "is an invention of some churchmen who are moralists but not canonists, that is why it is considered a weak phrase." He said that the Code of Canon Law would rather express it as "psychological or mental incapacity to discharge. . . ." Justice Ricardo C. Puno opined that sometimes a person may be psychologically impotent with one but not with another. One of the guidelines enumerated in the majority opinion for the interpretation and application of Art. 36 is: "Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex." The Committee, through Prof. Araceli T. Barrera, considered the inclusion of the phrase" and is incurable" but Prof. Esteban B. Bautista commented that this would give rise to the question of how they will determine curability and Justice Caguioa agreed that it would be more problematic. Yet the possibility that one may be cured after the psychological incapacity becomes manifest after the marriage was not ruled out by Justice Puno and Justice Alice Sempio-Diy. Justice Caguioa suggested that the remedy was to allow the afflicted spouse to remarry. For clarity, the Committee classified the bases for determining void marriages, viz: 1. lack of one or more of the essential requisites of marriage as contract; 2. reasons of public policy; 3. special cases and special situations. The ground of psychological incapacity was subsumed under "special cases and special situations," hence its special treatment in Art. 36 in the Family Code as finally enacted. Nowhere in the Civil Code provisions on Marriage is there a ground for avoiding or annulling marriages that even comes close to being psychological in nature. Where consent is vitiated due to circumstances existing at the time of the marriage, such marriage which stands valid until annulled is capable of ratification or convalidation. On the other hand, for reasons of public policy or lack of essential requisites, some marriages are void from the beginning. With the revision of Book I of the Civil Code, particularly the provisions on Marriage, the drafters, now open to fresh winds of change in keeping with the more permissive mores and practices of the time, took a leaf from the relatively liberal provisions of Canon Law.

Canon 1095 which states, inter alia, that the following persons are incapable of contracting marriage: "3. (those) who, because of causes of a psychological nature, are unable to assume the essential obligations of marriage" provided the model for what is now Art. 36 of the Family Code: "A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. It bears stressing that unlike in Civil Law, Canon Law recognizes only two types of marriages with respect to their validity: valid and void. Civil Law, however, recognizes an intermediate state, the voidable or annullable marriages. When the Ecclesiastical Tribunal "annuls" a marriage, it actually declares the marriage null and void, i.e., it never really existed in the first place, for a valid sacramental marriage can never be dissolved. Hence, a properly performed and consummated marriage between two living Roman Catholics can only be nullified by the formal annulment process which entails a full tribunal procedure with a Court selection and a formal hearing. Such so-called church "annulments" are not recognized by Civil Law as severing the marriage ties as to capacitate the parties to enter lawfully into another marriage. The grounds for nullifying civil marriage, not being congruent with those laid down by Canon Law, the former being more strict, quite a number of married couples have found themselves in limbo freed from the marriage bonds in the eyes of the Catholic Church but yet unable to contract a valid civil marriage under state laws. Heedless of civil law sanctions, some persons contract new marriages or enter into live-in relationships. It was precisely to provide a satisfactory solution to such anomalous situations that the Civil Law Revision Committee decided to engraft the Canon Law concept of psychological incapacity into the Family Code and classified the same as a ground for declaring marriages void ab initio or totally in existent from the beginning. A brief historical note on the Old Canon Law (1917). This Old Code, while it did not provide directly for psychological incapacity, in effect recognized the same indirectly from a combination of three old canons: "Canon #1081 required persons to 'be capable according to law' in order to give valid consent; Canon #1082 required that persons 'be at least not ignorant' of the major elements required in marriage; and Canon #1087 (the force and fear category) required that internal and external freedom be present in order for consent to be valid. This line of interpretation produced two distinct but related grounds for annulment, called 'lack of due discretion' and 'lack of due competence.' Lack of due discretion means that the person did not have the ability to give valid consent at the time of the weddingand therefore the union is invalid. Lack of due competence means that the person was incapable of carrying out the obligations of the promise he or she made during the wedding ceremony . "Favorable annulment decisions by the Roman Rota in the 1950s and 1960s involving sexual disorders such as homosexuality and nymphomania laid the foundation for a broader approach to the kind of proof necessary for psychological grounds for annulment. The Rota had reasoned for the first time in several cases that the capacity to give valid consent at the time of marriage was probably not present in persons who had displayed such problems shortly after the marriage. The nature of this change was nothing short of revolutionary. Once the Rota itself had demonstrated a cautious willingness to use this kind of hindsight, the way was paved for what came after 1970. Diocesan Tribunals began to accept proof of serious psychological problems that manifested themselves shortly after the ceremony as proof of an inability to give valid consent at the time of the ceremony .

Furthermore, and equally significant, the professional opinion of a psychological expert became increasingly important in such cases. Data about the person's entire life, both before and after the ceremony, were presented to these experts and they were asked to give professional opinions about a party's mental at the time of the wedding. These opinions were rarely challenged and tended to be accepted as decisive evidence of lack of valid consent. The Church took pains to point out that its new openness in this area did not amount to the addition of new grounds for annulment, but rather was an accommodation by the Church to the advances made in psychology during the past decades. There was now the expertise to provide the all-important connecting link between a marriage breakdown and premarital causes. During the 1970s, the Church broadened its whole idea of marriage from that of a legal contract to that of a covenant. The result of this was that it could no longer be assumed in annulment cases that a person who could intellectually understand the concept of marriage could necessarily give valid consent to marry. The ability to both grasp and assume the real obligations of a mature, lifelong commitment are now considered a necessary prerequisite to valid matrimonial consent. 2 Rotal decisions continued applying the concept of incipient psychological incapacity, "not only to sexual anomalies but to all kinds of personality disorders that incapacitate a spouse or both spouses from assuming or carrying out the essential obligations of marriage. For marriage . . . is not merely cohabitation or the right of the spouses to each others' body for heterosexual acts, but is, in its totality, the right to the community of the whole of life, i.e., the right to a developing. lifelong relationship. Rotal decisions since 1973 have refined the meaning of psychological or psychic capacity for marriage as presupposing the development of an adult personality; as meaning the capacity of the spouses to give themselves to each other and to accept the other as a distinct person; that the spouses must be 'other oriented' since the obligations of marriage are rooted in a self-giving love; and that the spouses must have the capacity for interpersonal relationship because marriage is more than just a physical reality but involves a true intertwining of personalities. The fulfillment of the obligations of marriage depends. according to Church decisions, on the strength of this interpersonal relationship. A serious incapacity for interpersonal sharing and support is held to impair the relationship and consequently, the ability to fulfill the essential marital obligations. The marital capacity of one spouse is not considered in isolation but in reference to the fundamental relationship to the other spouse. 3 Fr. Green, in an article in Catholic Mind, lists six elements necessary to the mature marital relationship: The courts consider the following elements crucial to the marital commitment: (1) a permanent and faithful commitment to the marriage partner; (2) openness to children and partner; (3) stability; (4) emotional maturity; (5) financial responsibility; (6) an ability to cope with the ordinary stresses and strains of marriage, etc. Fr. Green goes on to speak about some of the psychological conditions that might lead to the failure of a marriage: At stake is a type of constitutional impairment precluding conjugal communion even with the best intentions of the parties. Among the psychic factors possibly giving rise to his or her inability to fulfill marital obligations are the

following: (1) antisocial personality with its fundamental lack of loyalty to persons or sense of moral values; (2) hyperesthesia, where the individual has no real freedom of sexual choice; (3) the inadequate personality where personal responses consistently fallshort of reasonable expectations. xxx xxx xxx The psychological grounds are the best approach for anyone who doubts whether he or she has a case for an annulment on any other terms. A situation that does not fit into any of the more traditional categories often fits very easily into the psychological category.
As new as the psychological grounds are, experts are already detecting a shift in their use. Whereas originally the emphasis was on the parties' inability to exercise proper judgment at the time of the marriage (lack of due discretion), recent cases seem to be concentrating on the parties' to assume or carry out their responsibilities an obligations as promised (lack of due competence). An advantage to using the ground of lack of due competence is that the at the time the marriage was entered intocivil divorce and breakup of the family almost is of someone's failure out marital responsibilities as promised at the time the marriage was entered into. 4

In the instant case, "opposing and conflicting personalities" of the spouses were not considered equivalent to psychological incapacity. As well in Santos v. Court of Appeals cited in the ponencia, the Court held that the failure of the wife to return home from the U.S. or to communicate with her husband for more then five years is not proof of her psychological incapacity as to render the marriage a nullity. 5 Therefore, Art. 36 is inapplicable and the marriages remain valid and subsisting. However in the recent case of Chi Ming Tsoi v. Court of Appeals, 6 this Court upheld both the Regional Trial Court and the Court of Appeals in declaring the presence of psychological incapacity on the part of the husband. Said petitioner husband, after ten (10) months' sleeping with his wife never had coitus with her, a fact he did not deny but he alleged that it was due to the physical disorder of his wife which, however, he failed to prove. Goaded by the indifference and stubborn refusal of her husband to fulfill a basic marital obligation described as "to procreate children based on the universal principle that procreation of children through sexual cooperation is the basic end of marriage," the wife brought the action in the lower court to declare the marriage null. The Court, quoting Dr. Gerardo Veloso, a former Presiding Judge of the Metropolitan Marriage Tribunal of the Catholic Archdiocese of Manila (Branch I) on Psychological incapacity concluded: If a spouse, although physically capable but simply refuses to perform his or her essential marriage obligations, and the refusal is senseless and constant, Catholic marriage tribunals attribute the causes to psychological incapacity than to stubborn refusal.Senseless and protracted refusal is equivalent to psychological incapacity. Thus, the prolonged refusal of a spouse to have sexual intercourse with his or her spouse is considered a sign of psychological incapacity. We declared:

This Court, finding the gravity of the failed relationship in which the parties found themselves trapped in its mire of unfulfilled vows and unconsummated marital obligations, can do no less but sustain the studied judgment of respondent appellate court. 1 concur with the majority opinion that the herein marriage remains valid and subsisting absent psychological incapacity (under Art. 36 of the Family Code) on the part of either or both of the spouses.

VITUG, J., concurring: I fully concur with my esteemed 'colleague Mr. Justice Artemio V. Panganiban in his ponencia, and I find to be most helpful the guidelines that he prepared for the bench and the bar in the proper appreciation of Article 36 of Executive Order No. 209 ("The Family Code of the Philippines"). The term "psychological incapacity" was neither defined nor exemplified by the Family Code. Thus Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. The Revision Committee, constituted under the auspices of the U.P. Law Center, which drafted the Code explained:
(T)he Committee would like the judge to interpret the provision on a case-to-case basis, guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals which, although not binding on the civil courts, may be given persuasive effect since the provision was taken from Canon Law. 1

Article 36 of the Family Code was concededly taken from Canon 1095 of the New Code of Canon Law Canon 1095. (The following persons) are incapable of contracting marriage; (those) 1. who lack sufficient use of reason; 2. who suffer from a grave defect of discretion of judgment concerning essential matrimonial rights and duties, to be given and accepted mutually; 3. who for causes of psychological nature are unable to assume the essential obligations of marriage that should give that much value to Canon Law jurisprudence as an aid to the interpretation and construction of the statutory enactment. 2 The principles in the proper application of the law teach us that the several provisions of a Code must be read like a congruent whole. Thus, in determining the import of "psychological

incapacity" under Article 36, one must also read it along with, albeit to be taken as distinct from, the other grounds enumerated in the Code, like Articles 35, 37, 38 and 41 that would likewise, but for distinct reasons, render the marriage merely voidable, or Article 55 that could justify a petition for legal separation. Care must be observed so that these various circumstances are not applied so indiscriminately as if the law were indifferent on the matter. I would wish to reiterate the Court's' statement in Santos vs. Court of Appeals; 3 viz: (T)he use of the phrase "psychological incapacity" under Article 36 of the Code has not been meant to comprehend all such possible cases of psychoses as, likewise mentioned by some ecclesiastical authorities, extremely low intelligence, immaturity, and like circumstances. . . Article 36 of the Family Code cannot be taken and construed independently of, but must stand in conjunction with, existing precepts in our law on marriage. Thus correlated, "psychological incapacity" should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of "psychological incapacity" to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability of the spouse to have sexual relations with the other. This conclusion is implicit under Article 54 of the Family Code which considers children conceived prior to the judicial declaration of nullity of the void marriage to be "legitimate."
The other forms of psychoses, if existing at the inception of marriage, like the state of a party being of unsound mind or concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism, merely renders the marriage contract voidable pursuant to Article 46, Family Code. If drug addiction, habitual alcoholism, lesbianism or homosexuality should occur only during the marriage, they become mere grounds for legal separation under Article 55 of the Family Code. These provisions of the Code, however, do not necessarily preclude the possibility of these various circumstances being themselves, depending on the degree and severity of the disorder, indicia of psychological incapacity. 4

In fine, the term "psychological incapacity," to be a ground for then nullity of marriage under Article 36 of the Family Code, must be able to pass the following tests; viz: First, the incapacity must be psychological or mental, not physical, in nature; Second, the psychological incapacity must relate to the inability, not mere refusal, to understand, assume end discharge the basic marital obligations of living together, observing love, respect and fidelity and rendering mutual help and support; Third, the psychologic condition must exist at the time the marriage is contracted although its overt manifestations and the marriage may occur only thereafter; and Fourth, the mental disorder must be grave or serious and incurable.

It may well be that the Family Code Revision Committee has envisioned Article 36, as not a few observers would suspect, as another form of absolute divorce or, as still others would also put it, to be a alternative to divorce; however, the fact still remains that the language of the law has failed to carry out, even if true, any such intendment. It might have indeed turned out for the better, if it were otherwise, there could be good reasons to doubt the constitutionality of the measure. The fundamental law itself, no less, has laid down in terse language its unequivocal command on how the State should regard marriage and the family, thus Section 2, Article XV: Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. Section 12, Article II: Sec. 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution . . . . Section 1, Article XV: Sec. 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. (The 1987 Constitution) The case of Marcelino vs. Cruz, 121 SCRA 51, might here be significant not so much for the specific issue there resolved but for the tone it has set. The Court there has held that constitutional provisions are to be considered mandatory unless by necessary implication, a different intention is manifest such that to have them enforced strictly would cause more harm than by disregarding them. It is quite clear to me that the constitutional mandate on marriage and the family has not been meant to be simply directory in character, nor for mere expediency or convenience, but one that demands a meaningful, not half-hearted, respect. THIRD DIVISION G.R. No. 136921 April 17, 2001

LORNA GUILLEN PESCA, petitioner vs. ZOSIMO A PESCA, respondent. VITUG, J.: Submitted for review is the decision of the Court of Appeals, promulgated on 27 May 1998, in C.A. G.R. CV. No. 52374, reversing the decision of the Regional Trial Court ("RTC") of Caloocan City, Branch 130, which has declared the marriage between petitioner and respondent to be null and void ab initio on the ground of psychological incapacity on the part of respondent. Petitioner Lorna G. Pesca and respondent Zosimo A. Pesca first met sometime in 1975 while on board an inter-island vessel bound for Bacolod City. After a whirlwind courtship, they got married on 03 March 1975. Initially, the young couple did not live together as petitioner was still a student in

college and respondent, a seaman, had to leave the country on board an ocean-going vessel barely a month after the marriage. Six months later, the young couple established their residence in Quezon City until they were able to build their own house in Caloocan City where they finally resided. It was blissful marriage for the couple during the two months of the year that they could stay together - when respondent was on vacation. The union begot four children, 19-year old Ruhem, 17year old Rez, 11-year old Ryan, and 9-year old Richie. It started in 1988, petitioner said, when she noticed that respondent surprisingly showed signs of "psychological incapacity" to perform his marital covenant. His "true color" of being an emotionally immature and irresponsible husband became apparent. He was cruel and violent. He was a habitual drinker, staying with friends daily from 4:00 o'clock in the afternoon until 1:00 o'clock in the morning. When cautioned to stop or, to at least, minimize his drinking, respondent would beat, slap and kick her. At one time, he chased petitioner with a loaded shotgun and threatened to kill her in the presence of the children. The children themselves were not spared from physical violence. Finally, on 19 November 1992, petitioner and her children left the conjugal abode to live in the house of her sister in Quezon City as they could no longer bear his violent ways. Two months later, petitioner decided to forgive respondent, and she returned home to give him a chance to change. But, to her dismay, things did not so turn out as expected. Indeed, matters became worse. On the morning of 22 March 1994, about eight o'clock, respondent assaulted petitioner for about half an hour in the presence of the children. She was battered black and blue. She submitted herself to medical examination at the Quezon City General Hospital, which diagnosed her injuries as contusions and abrasions. Petitioner filed a complaint with the barangay authorities, and a case was filed against respondent for slight physical injuries. He was convicted by the Metropolitan Trial Court of Caloocan City and sentenced to eleven days of imprisonment. This time, petitioner and her children left the conjugal home for good and stayed with her sister. Eventually, they decided to rent an apartment. Petitioner sued respondent before the Regional Trial Court for the declaration of nullity of their marriage invoking psychological incapacity. Petitioner likewise sought the custody of her minor children and prayed for support pendente lite . Summons, together with a copy of the complaint, was served on respondent on 25 April 1994 by personal service by the sheriff. As respondent failed to file an answer or to enter his appearance within the reglementary period, the trial court ordered the city prosecutor to look into a possible collusion between the parties. Prosecutor Rosa C. Reyes, on 03 August 1994, submitted her report to the effect that she found no evidence to establish that there was collusion between the parties.
1wphi1.nt

On 11 January 1995, respondent belatedly filed, without leave of court, an answer, and the same, although filed late, was admitted by the court. In his answer, respondent admitted the fact of his marriage with petitioner and the birth of their children. He also confirmed the veracity of Annex "A" of the complaint which listed the conjugal property. Respondent vehemently denied, however, the allegation that he was psychologically incapacitated. On 15 November 1995, following hearings conducted by it, the trial court rendered its decision declaring the marriage between petitioner and respondent to be null and void ab initio on the basis of psychological incapacity on the part of respondent and ordered the liquidation of the conjugal partnership. Respondent appealed the above decision to the Court of Appeals, contending that the trial court erred, particularly, in holding that there was legal basis to declare the marriage null and void and in denying his motion to reopen the case.

The Court of Appeals reversed the decision of the trial court and declared the marriage between petitioner and respondent valid and subsisting. The appellate court said: "Definitely the appellee has not established the following: That the appellant showed signs of mental incapacity as would cause him to be truly incognitive of the basic marital covenant, as so provided for in Article 68 of the Family Code; that the incapacity is grave, has preceded the marriage and is incurable; that his incapacity to meet his marital responsibility is because of a psychological, not physical illness; that the root cause of the incapacity has been identified medically or clinically, and has been proven by an expert; and that the incapacity is permanent and incurable in nature. "The burden of proof to show the nullity of marriage lies in the plaintiff and any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity."1 Petitioner, in her plea to this Court, would have the decision of the Court of Appeals reversed on the thesis that the doctrine enunciated in Santos vs. Court of Appeals, 2 promulgated on 14 January 1995, as well as the guidelines set out in Republic vs. Court of Appeals and Molina, 3 promulgated on 13 February 1997, should have no retroactive application and, on the assumption that the Molina ruling could be applied retroactively, the guidelines therein outlined should be taken to be merely advisory and not mandatory in nature. In any case, petitioner argues, the application of the Santos and Molina dicta should warrant only a remand of the case to the trial court for further proceedings and not its dismissal. Be that as it may, respondent submits, the appellate court did not err in its assailed decision for there is absolutely no evidence that has been shown to prove psychological incapacity on his part as the term has been so defined inSantos. Indeed, there is no merit in the petition. The term "psychological incapacity," as a ground for the declaration of nullity of a marriage under Article 36 of the Family Code, has been explained by the Court, in Santos and reiterated in Molina. The Court, in Santos, concluded: "It should be obvious, looking at all the foregoing disquisitions, including, and most importantly, the deliberations of the Family Code Revision Committee itself, that the use of the phrase 'psychological incapacity' under Article 36 of the Code has not been meant to comprehend all such possible cases of psychoses as, likewise mentioned by some ecclesiastical authorities, extremely low intelligence, immaturity, and like circumstances (cited in Fr. Artemio Balumad's 'Void and Voidable Marriages in the Family Code and their Parallels in Canon Law,' quoting form the Diagnostic Statistical Manuel of Mental Disorder by the American Psychiatric Association; Edward Hudson's 'Handbook II for Marriage Nullity Cases'). Article 36 of the Family. Code cannot be taken and construed independently of, but must stand in conjunction with, existing precepts in our law on marriage. Thus correlated, 'psychological incapacity' should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of 'psychological incapacity' to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give

meaning and significance to the marriage. This psychologic condition must exist at the time the marriage is celebrated." The- "doctrine of stare decisis," ordained in Article 8 of the Civil Code, expresses that judicial decisions applying or interpreting the law shall form part of the legal system of the Philippines. The rule follows the settled legal maxim - "legis interpretado legis vim obtinet" - that the interpretation placed upon the written law by a competent court has the force of law. 3 The interpretation or construction placed by the courts establishes the contemporaneous legislative intent of the law. The latter as so interpreted and construed would thus constitute a part of that law as of the date the statute is enacted. It is only when a prior ruling of this Court finds itself later overruled, and a different view is adopted, that the new doctrine may have to be applied prospectively in favor of parties who have relied on the old doctrine and have acted in good faith in accordance therewith5 under the familiar rule of "lex prospicit, non respicit." The phrase "psychological incapacity ," borrowed from Canon law, is an entirely novel provision in our statute books, and, until the relatively recent enactment of the Family Code, the concept has escaped jurisprudential attention. It is in Santos when, for the first time, the Court has given life to the term. Molina, that followed, has additionally provided procedural guidelines to assist the courts and the parties in trying cases for annulment of marriages grounded on psychological incapacity. Molina has strengthened, not overturned, Santos. At all events, petitioner has utterly failed, both in her allegations in the complaint and in her evidence, to make out a case of psychological incapacity on the part of respondent, let alone at the time of solemnization of the contract, so as to warrant a declaration of nullity of the marriage. Emotional immaturity and irresponsibility, invoked by her, cannot be equated with psychological incapacity. The Court reiterates its reminder that marriage is an inviolable social institution and the foundation of the family6that the State cherishes and protects. While the Court commisserates with petitioner in her unhappy marital relationship with respondent, totally terminating that relationship, however, may not necessarily be the fitting denouement to it. In these cases, the law has not quite given up, neither should we. WHEREFORE, the herein petition is DENIED. No costs. SO ORDERED. Vitug, J.C.; Melo, J.A.R; Panganiban, A.V.; Gonzaga-Reyes, M.P.; Sandoval-Gutierez, A., Concur.

FIRST DIVISION G.R. No. 133778 March 14, 2000

ENGRACE NIAL for Herself and as Guardian ad Litem of the minors BABYLINE NIAL, INGRID NIAL, ARCHIE NIAL & PEPITO NIAL, JR., petitioners, vs. NORMA BAYADOG, respondent.

YNARES-SANTIAGO, J.: May the heirs of a deceased person file a petition for the declaration of nullity of his marriage after his death? Pepito Nial was married to Teodulfa Bellones on September 26, 1974. Out of their marriage were born herein petitioners. Teodulfa was shot by Pepito resulting in her death on April 24, 1985. One year and 8 months thereafter or on December 11, 1986, Pepito and respondent Norma Badayog got married without any marriage license. In lieu thereof, Pepito and Norma executed an affidavit dated December 11, 1986 stating that they had lived together as husband and wife for at least five years and were thus exempt from securing a marriage license. On February 19, 1997, Pepito died in a car accident. After their father's death, petitioners filed a petition for declaration of nullity of the marriage of Pepito to Norma alleging that the said marriage was void for lack of a marriage license. The case was filed under the assumption that the validity or invalidity of the second marriage would affect petitioner's successional rights. Norma filed a motion to dismiss on the ground that petitioners have no cause of action since they are not among the persons who could file an action for "annulment of marriage" under Article 47 of the Family Code. Judge Ferdinand J. Marcos of the Regional Trial Court of Toledo City, Cebu, Branch 59, dismissed the petition after finding that the Family Code is "rather silent, obscure, insufficient" to resolve the following issues: (1) Whether or not plaintiffs have a cause of action against defendant in asking for the declaration of the nullity of marriage of their deceased father, Pepito G. Nial, with her specially so when at the time of the filing of this instant suit, their father Pepito G. Nial is already dead; (2) Whether or not the second marriage of plaintiffs' deceased father with defendant is null and void ab initio; (3) Whether or not plaintiffs are estopped from assailing the validity of the second marriage after it was dissolved due to their father's death. 1 Thus, the lower court ruled that petitioners should have filed the action to declare null and void their father's marriage to respondent before his death, applying by analogy Article 47 of the Family Code which enumerates the time and the persons who could initiate an action for annulment of marriage. 2 Hence, this petition for review with this Court grounded on a pure question of law. This petition was originally dismissed for non-compliance with Section 11, Rule 13 of the 1997 Rules of Civil Procedure, and because "the verification failed to state the basis of petitioner's averment that the allegations in the petition are "true and correct"." It was thus treated as an unsigned pleading which produces no legal effect under Section 3, Rule 7, of the 1997 Rules. 3 However, upon motion of petitioners, this Court reconsidered the dismissal and reinstated the petition for review. 4 The two marriages involved herein having been solemnized prior to the effectivity of the Family Code (FC), the applicable law to determine their validity is the Civil Code which was the law in effect at the time of their celebration. 5 A valid marriage license is a requisite of marriage under Article 53 of the Civil Code, 6 the absence of which renders the marriage void ab initio pursuant to Article 80(3) 7 in relation to Article 58. 8 The requirement and issuance of marriage license is the State's demonstration of its involvement and participation in every marriage, in the maintenance of which the general public is interested. 9 This interest proceeds from the constitutional mandate that the State recognizes the sanctity of family life and of affording protection to the family as a basic

"autonomous social institution." 10 Specifically, the Constitution considers marriage as an "inviolable social institution," and is the foundation of family life which shall be protected by the State. 11 This is why the Family Code considers marriage as "a special contract of permanent union" 12 and case law considers it "not just an adventure but a lifetime commitment." 13 However, there are several instances recognized by the Civil Code wherein a marriage license is dispensed with, one of which is that provided in Article 76, 14 referring to the marriage of a man and a woman who have lived together and exclusively with each other as husband and wife for a continuous and unbroken period of at least five years before the marriage. The rationale why no license is required in such case is to avoid exposing the parties to humiliation, shame and embarrassment concomitant with the scandalous cohabitation of persons outside a valid marriage due to the publication of every applicant's name for a marriage license. The publicity attending the marriage license may discourage such persons from legitimizing their status. 15 To preserve peace in the family, avoid the peeping and suspicious eye of public exposure and contain the source of gossip arising from the publication of their names, the law deemed it wise to preserve their privacy and exempt them from that requirement. There is no dispute that the marriage of petitioners' father to respondent Norma was celebrated without any marriage license. In lieu thereof, they executed an affidavit stating that "they have attained the age of majority, and, being unmarried, have lived together as husband and wife for at least five years, and that we now desire to marry each other." 16 The only issue that needs to be resolved pertains to what nature of cohabitation is contemplated under Article 76 of the Civil Code to warrant the counting of the five year period in order to exempt the future spouses from securing a marriage license. Should it be a cohabitation wherein both parties are capacitated to marry each other during the entire five-year continuous period or should it be a cohabitation wherein both parties have lived together and exclusively with each other as husband and wife during the entire five-year continuous period regardless of whether there is a legal impediment to their being lawfully married, which impediment may have either disappeared or intervened sometime during the cohabitation period? Working on the assumption that Pepito and Norma have lived together as husband and wife for five years without the benefit of marriage, that five-year period should be computed on the basis of a cohabitation as "husband and wife" where the only missing factor is the special contract of marriage to validate the union. In other words, the five-year common-law cohabitation period, which is counted back from the date of celebration of marriage, should be a period of legal union had it not been for the absence of the marriage. This 5-year period should be the years immediately before the day of the marriage and it should be a period of cohabitation characterized by exclusivity meaning no third party was involved at anytime within the 5 years and continuity that is unbroken. Otherwise, if that continuous 5-year cohabitation is computed without any distinction as to whether the parties were capacitated to marry each other during the entire five years, then the law would be sanctioning immorality and encouraging parties to have common law relationships and placing them on the same footing with those who lived faithfully with their spouse. Marriage being a special relationship must be respected as such and its requirements must be strictly observed. The presumption that a man and a woman deporting themselves as husband and wife is based on the approximation of the requirements of the law. The parties should not be afforded any excuse to not comply with every single requirement and later use the same missing element as a pre-conceived escape ground to nullify their marriage. There should be no exemption from securing a marriage license unless the circumstances clearly fall within the ambit of the exception. It should be noted that a license is required in order to notify the public that two persons are about to be united in matrimony and that anyone who is aware or has knowledge of any impediment to the union of the two shall make it known to the local civil registrar. 17 The Civil Code provides:

Art. 63: . . . This notice shall request all persons having knowledge of any impediment to the marriage to advice the local civil registrar thereof. . . . Art. 64: Upon being advised of any alleged impediment to the marriage, the local civil registrar shall forthwith make an investigation, examining persons under oath. . . . This is reiterated in the Family Code thus: Art. 17 provides in part: . . . This notice shall request all persons having knowledge of any impediment to the marriage to advise the local civil registrar thereof. . . . Art. 18 reads in part: . . . In case of any impediment known to the local civil registrar or brought to his attention, he shall note down the particulars thereof and his findings thereon in the application for a marriage license. . . . This is the same reason why our civil laws, past or present, absolutely prohibited the concurrence of multiple marriages by the same person during the same period. Thus, any marriage subsequently contracted during the lifetime of the first spouse shall be illegal and void, 18 subject only to the exception in cases of absence or where the prior marriage was dissolved or annulled. The Revised Penal Code complements the civil law in that the contracting of two or more marriages and the having of extramarital affairs are considered felonies, i.e., bigamy and concubinage and adultery. 19 The law sanctions monogamy. In this case, at the time of Pepito and respondent's marriage, it cannot be said that they have lived with each other as husband and wife for at least five years prior to their wedding day. From the time Pepito's first marriage was dissolved to the time of his marriage with respondent, only about twenty months had elapsed. Even assuming that Pepito and his first wife had separated in fact, and thereafter both Pepito and respondent had started living with each other that has already lasted for five years, the fact remains that their five-year period cohabitation was not the cohabitation contemplated by law. It should be in the nature of a perfect union that is valid under the law but rendered imperfect only by the absence of the marriage contract. Pepito had a subsisting marriage at the time when he started cohabiting with respondent. It is immaterial that when they lived with each other, Pepito had already been separated in fact from his lawful spouse. The subsistence of the marriage even where there was actual severance of the filial companionship between the spouses cannot make any cohabitation by either spouse with any third party as being one as "husband and wife". Having determined that the second marriage involved in this case is not covered by the exception to the requirement of a marriage license, it is void ab initio because of the absence of such element. The next issue to be resolved is: do petitioners have the personality to file a petition to declare their father's marriage void after his death? Contrary to respondent judge's ruling, Article 47 of the Family Code 20 cannot be applied even by analogy to petitions for declaration of nullity of marriage. The second ground for annulment of marriage relied upon by the trial court, which allows "the sane spouse" to file an annulment suit "at anytime before the death of either party" is inapplicable. Article 47 pertains to the grounds, periods and persons who can file an annulment suit, not a suit for declaration of nullity of marriage. The Code is silent as to who can file a petition to declare the nullity of a marriage. Voidable and void marriages are not identical. A marriage that is annulable is valid until otherwise declared by the court; whereas a marriage that is void ab initio is considered as having never to have taken place21 and cannot be the source of rights. The first can be generally ratified or confirmed by free

cohabitation or prescription while the other can never be ratified. A voidable marriage cannot be assailed collaterally except in a direct proceeding while a void marriage can be attacked collaterally. Consequently, void marriages can be questioned even after the death of either party but voidable marriages can be assailed only during the lifetime of the parties and not after death of either, in which case the parties and their offspring will be left as if the marriage had been perfectly valid. 22 That is why the action or defense for nullity is imprescriptible, unlike voidable marriages where the action prescribes. Only the parties to a voidable marriage can assail it but any proper interested party may attack a void marriage. Void marriages have no legal effects except those declared by law concerning the properties of the alleged spouses, regarding co-ownership or ownership through actual joint contribution, 23 and its effect on the children born to such void marriages as provided in Article 50 in relation to Article 43 and 44 as well as Article 51, 53 and 54 of the Family Code. On the contrary, the property regime governing voidable marriages is generally conjugal partnership and the children conceived before its annulment are legitimate. Contrary to the trial court's ruling, the death of petitioner's father extinguished the alleged marital bond between him and respondent. The conclusion is erroneous and proceeds from a wrong premise that there was a marriage bond that was dissolved between the two. It should be noted that their marriage was void hence it is deemed as if it never existed at all and the death of either extinguished nothing. Jurisprudence under the Civil Code states that no judicial decree is necessary in order to establish the nullity of a marriage. 24 "A void marriage does not require a judicial decree to restore the parties to their original rights or to make the marriage void but though no sentence of avoidance be absolutely necessary, yet as well for the sake of good order of society as for the peace of mind of all concerned, it is expedient that the nullity of the marriage should be ascertained and declared by the decree of a court of competent jurisdiction." 25 "Under ordinary circumstances, the effect of a void marriage, so far as concerns the conferring of legal rights upon the parties, is as though no marriage had ever taken place. And therefore, being good for no legal purpose, its invalidity can be maintained in any proceeding in which the fact of marriage may be material, either direct or collateral, in any civil court between any parties at any time, whether before or after the death of either or both the husband and the wife, and upon mere proof of the facts rendering such marriage void, it will be disregarded or treated as non-existent by the courts." It is not like a voidable marriage which cannot be collaterally attacked except in direct proceeding instituted during the lifetime of the parties so that on the death of either, the marriage cannot be impeached, and is made good ab initio. 26 But Article 40 of the Family Code expressly provides that there must be a judicial declaration of the nullity of a previous marriage, though void, before a party can enter into a second marriage 27 and such absolute nullity can be based only on a final judgment to that effect. 28 For the same reason, the law makes either the action or defense for the declaration of absolute nullity of marriage imprescriptible. 29 Corollarily, if the death of either party would extinguish the cause of action or the ground for defense, then the same cannot be considered imprescriptible. However, other than for purposes of remarriage, no judicial action is necessary to declare a marriage an absolute nullity. For other purposes, such as but not limited to determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even in a suit not directly instituted to question the same so long as it is essential to the determination of the case. This is without prejudice to any issue that may arise in the case. When such need arises, a final judgment of declaration of nullity is necessary even if the purpose is other than to remarry. The clause "on the basis of a final judgment declaring such previous marriage void" in Article 40 of the Family Code connotes that such final judgment need not be obtained only for purpose of remarriage.
1wphi1

WHEREFORE, the petition is GRANTED. The assailed Order of the Regional Trial Court, Toledo City, Cebu, Branch 59, dismissing Civil Case No. T-639, is REVERSED and SET ASIDE. The said case is ordered REINSTATED.
1wphi1.nt

SO ORDERED. Davide, Jr., C.J., Puno and Kapunan, JJ., concur. Pardo, J., on official business abroad.

SECOND DIVISION

G.R. No. 119190 January 16, 1997 CHI MING TSOI, petitioner, vs. COURT OF APPEALS and GINA LAO-TSOI, respondents.

TORRES, JR., J.: Man has not invented a reliable compass by which to steer a marriage in its journey over troubled waters. Laws are seemingly inadequate. Over time, much reliance has been placed in the works of the unseen hand of Him who created all things. Who is to blame when a marriage fails? This case was originally commenced by a distraught wife against her uncaring husband in the Regional Trial Court of Quezon City (Branch 89) which decreed the annulment of the marriage on the ground of psychological incapacity. Petitioner appealed the decision of the trial court to respondent Court of Appeals (CA-G.R. CV No. 42758) which affirmed the Trial Court's decision November 29, 1994 and correspondingly denied the motion for reconsideration in a resolution dated February 14, 1995. The statement of the case and of the facts made by the trial court and reproduced by the Court of Appeals 1 its decision are as follows: From the evidence adduced, the following acts were preponderantly established: Sometime on May 22, 1988, the plaintiff married the defendant at the Manila Cathedral, . . . Intramuros Manila, as evidenced by their Marriage Contract. (Exh. "A") After the celebration of their marriage and wedding reception at the South Villa, Makati, they went and proceeded to the house of defendant's mother.

There, they slept together on the same bed in the same room for the first night of their married life. It is the version of the plaintiff, that contrary to her expectations, that as newlyweds they were supposed to enjoy making love, or having sexual intercourse, with each other, the defendant just went to bed, slept on one side thereof, then turned his back and went to sleep . There was no sexual intercourse between them during the first night. The same thing happened on the second, third and fourth nights. In an effort to have their honeymoon in a private place where they can enjoy together during their first week as husband and wife, they went to Baguio City. But, they did so together with her mother, an uncle, his mother and his nephew. They were all invited by the defendant to join them. [T]hey stayed in Baguio City for four (4) days. But, during this period, there was no sexual intercourse between them, since the defendant avoided her by taking a long walk during siesta time or by just sleeping on a rocking chair located at the living room. They slept together in the same room and on the same bed since May 22, 1988 until March 15, 1989. But during this period, there was no attempt of sexual intercourse between them. [S]he claims, that she did not: even see her husband's private parts nor did he see hers. Because of this, they submitted themselves for medical examinations to Dr. Eufemio Macalalag, a urologist at the Chinese General Hospital, on January 20, 1989. The results of their physical examinations were that she is healthy, normal and still a virgin, while that of her husband's examination was kept confidential up to this time. While no medicine was prescribed for her, the doctor prescribed medications for her husband which was also kept confidential. No treatment was given to her. For her husband, he was asked by the doctor to return but he never did. The plaintiff claims, that the defendant is impotent, a closet homosexual as he did not show his penis. She said, that she had observed the defendant using an eyebrow pencil and sometimes the cleansing cream of his mother. And that, according to her, the defendant married her, a Filipino citizen, to acquire or maintain his residency status here in the country and to publicly maintain the appearance of a normal man. The plaintiff is not willing to reconcile with her husband. On the other hand, it is the claim of the defendant that if their marriage shall be annulled by reason of psychological incapacity, the fault lies with his wife. But, he said that he does not want his marriage with his wife annulled for several reasons, viz: (1) that he loves her very much; (2) that he has no defect on his part and he is physically and psychologically capable; and, (3) since the relationship is still very young and if there is any differences between the two of them, it can still be reconciled and that, according to him, if either one of them has some incapabilities, there is no certainty that this will not be cured. He further claims, that if there is any defect, it can be cured by the intervention of medical technology or science. The defendant admitted that since their marriage on May 22, 1988, until their separation on March 15, 1989, there was no sexual contact between them. But, the reason for this, according to the defendant, was that everytime he wants to have sexual intercourse with his wife, she always avoided him and whenever he caresses her private parts, she always removed his hands. The defendant claims, that he forced his wife to have sex with him only

once but he did not continue because she was shaking and she did not like it. So he stopped. There are two (2) reasons, according to the defendant , why the plaintiff filed this case against him, and these are: (1) that she is afraid that she will be forced to return the pieces of jewelry of his mother, and, (2) that her husband, the defendant, will consummate their marriage. The defendant insisted that their marriage will remain valid because they are still very young and there is still a chance to overcome their differences. The defendant submitted himself to a physical examination. His penis was examined by Dr. Sergio Alteza, Jr., for the purpose of finding out whether he is impotent . As a result thereof, Dr. Alteza submitted his Doctor's Medical Report. (Exh. "2"). It is stated there, that there is no evidence of impotency (Exh. "2-B"), and he is capable of erection. (Exh. "2-C") The doctor said, that he asked the defendant to masturbate to find out whether or not he has an erection and he found out that from the original size of two (2) inches, or five (5) centimeters, the penis of the defendant lengthened by one (1) inch and one centimeter. Dr. Alteza said, that the defendant had only a soft erection which is why his penis is not in its full length. But, still is capable of further erection, in that with his soft erection, the defendant is capable of having sexual intercourse with a woman.
In open Court, the Trial Prosecutor manifested that there is no collusion between the parties and that the evidence is not fabricated." 2

After trial, the court rendered judgment, the dispositive portion of which reads: ACCORDINGLY, judgment is hereby rendered declaring as VOID the marriage entered into by the plaintiff with the defendant on May 22, 1988 at the Manila Cathedral, Basilica of the Immaculate Conception, Intramuros, Manila, before the Rt. Rev. Msgr. Melencio de Vera. Without costs. Let a copy of this decision be furnished the Local Civil Registrar of Quezon City. Let another copy be furnished the Local Civil Registrar of Manila. SO ORDERED. On appeal, the Court of Appeals affirmed the trial court's decision. Hence, the instant petition. Petitioner alleges that the respondent Court of Appeals erred: I in affirming the conclusions of the lower court that there was no sexual intercourse between the parties without making any findings of fact. II in holding that the refusal of private respondent to have sexual communion with petitioner is a psychological incapacity inasmuch as proof thereof is totally absent.

III in holding that the alleged refusal of both the petitioner and the private respondent to have sex with each other constitutes psychological incapacity of both. IV in affirming the annulment of the marriage between the parties decreed by the lower court without fully satisfying itself that there was no collusion between them. We find the petition to be bereft of merit. Petitioner contends that being the plaintiff in Civil Case No. Q-89-3141, private respondent has the burden of proving the allegations in her complaint; that since there was no independent evidence to prove the alleged non-coitus between the parties, there remains no other basis for the court's conclusion except the admission of petitioner; that public policy should aid acts intended to validate marriage and should retard acts intended to invalidate them; that the conclusion drawn by the trial court on the admissions and confessions of the parties in their pleadings and in the course of the trial is misplaced since it could have been a product of collusion; and that in actions for annulment of marriage, the material facts alleged in the complaint shall always be proved. 3 Section 1, Rule 19 of the Rules of Court reads: Section 1. Judgment on the pleadings. Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party's pleading, the court may, on motion of that party, direct judgment on such pleading. But in actions for annulment of marriage or for legal separation the material facts alleged in the complaint shall always be proved. The foregoing provision pertains to a judgment on the pleadings. What said provision seeks to prevent is annulment of marriage without trial. The assailed decision was not based on such a judgment on the pleadings. When private respondent testified under oath before the trial court and was cross-examined by oath before the trial court and was cross-examined by the adverse party, she thereby presented evidence in form of a testimony. After such evidence was presented, it be came incumbent upon petitioner to present his side. He admitted that since their marriage on May 22, 1988, until their separation on March 15, 1989, there was no sexual intercourse between them. To prevent collusion between the parties is the reason why, as stated by the petitioner, the Civil Code provides that no judgment annulling a marriage shall be promulgated upon a stipulation of facts or by confession of judgment (Arts. 88 and 101[par. 2]) and the Rules of Court prohibit such annulment without trial (Sec. 1, Rule 19). The case has reached this Court because petitioner does not want their marriage to be annulled. This only shows that there is no collusion between the parties. When petitioner admitted that he and his wife (private respondent) have never had sexual contact with each other, he must have been only telling the truth. We are reproducing the relevant portion of the challenged resolution denying petitioner's Motion for Reconsideration, penned with magisterial lucidity by Associate Justice Minerva Gonzaga-Reyes, viz:
The judgment of the trial court which was affirmed by this Court is not based on a stipulation of facts. The issue of whether or not the appellant is psychologically incapacitated to discharge a

basic marital obligation was resolved upon a review of both the documentary and testimonial evidence on record. Appellant admitted that he did not have sexual relations with his wife after almost ten months of cohabitation, and it appears that he is not suffering from any physical disability. Such abnormal reluctance or unwillingness to consummate his marriage is strongly indicative of a serious personality disorder which to the mind of this Court clearly demonstrates an 'utter insensitivity or inability to give meaning and significance to the marriage' within the meaning of Article 36 of the Family Code (See Santos vs. Court of Appeals, G.R. No. 112019, January 4, 1995). 4

Petitioner further contends that respondent court erred in holding that the alleged refusal of both the petitioner and the private respondent to have sex with each other constitutes psychological incapacity of both. He points out as error the failure of the trial court to make "a categorical finding about the alleged psychological incapacity and an in-depth analysis of the reasons for such refusal which may not be necessarily due to physchological disorders" because there might have been other reasons, i.e., physical disorders, such as aches, pains or other discomforts, why private respondent would not want to have sexual intercourse from May 22, 1988 to March 15, 1989, in a short span of 10 months. First, it must be stated that neither the trial court nor the respondent court made a finding on who between petitioner and private respondent refuses to have sexual contact with the other. The fact remains, however, that there has never been coitus between them. At any rate, since the action to declare the marriage void may be filed by either party, i.e., even the psychologically incapacitated, the question of who refuses to have sex with the other becomes immaterial. Petitioner claims that there is no independent evidence on record to show that any of the parties is suffering from phychological incapacity. Petitioner also claims that he wanted to have sex with private respondent; that the reason for private respondent's refusal may not be psychological but physical disorder as stated above. We do not agree. Assuming it to be so, petitioner could have discussed with private respondent or asked her what is ailing her, and why she balks and avoids him everytime he wanted to have sexual intercourse with her. He never did. At least, there is nothing in the record to show that he had tried to find out or discover what the problem with his wife could be. What he presented in evidence is his doctor's Medical Report that there is no evidence of his impotency and he is capable of erection. 5 Since it is petitioner's claim that the reason is not psychological but perhaps physical disorder on the part of private respondent, it became incumbent upon him to prove such a claim.
If a spouse, although physically capable but simply refuses to perform his or her essential marriage obligations, and the refusal is senseless and constant, Catholic marriage tribunals attribute the causes to psychological incapacity than to stubborn refusal. Senseless and protracted refusal is equivalent to psychological incapacity. Thus, the prolonged refusal of a spouse to have sexual intercourse with his or her spouse is considered a sign of psychological incapacity. 6

Evidently, one of the essential marital obligations under the Family Code is "To procreate children based on the universal principle that procreation of children through sexual cooperation is the basic end of marriage." Constant non- fulfillment of this obligation will finally destroy the integrity or wholeness of the marriage. In the case at bar, the senseless and protracted refusal of one of the parties to fulfill the above marital obligation is equivalent to psychological incapacity. As aptly stated by the respondent court,

An examination of the evidence convinces Us that the husband's plea that the wife did not want carnal intercourse with him does not inspire belief. Since he was not physically impotent, but he refrained from sexual intercourse during the entire time (from May 22, 1988 to March 15, 1989) that he occupied the same bed with his wife, purely out of symphaty for her feelings, he deserves to be doubted for not having asserted his right seven though she balked (Tompkins vs. Tompkins, 111 Atl. 599, cited in I Paras, Civil Code, at p. 330). Besides, if it were true that it is the wife was suffering from incapacity, the fact that defendant did not go to court and seek the declaration of nullity weakens his claim. This case was instituted by the wife whose normal expectations of her marriage were frustrated by her husband's inadequacy. Considering the innate modesty of the Filipino woman, it is hard to believe that she would expose her private life to public scrutiny and fabricate testimony against her husband if it were not necessary to put her life in order and put to rest her marital status.
We are not impressed by defendant's claim that what the evidence proved is the unwillingness or lack of intention to perform the sexual act, which is not phychological incapacity, and which can be achieved "through proper motivation." After almost ten months of cohabitation, the admission that the husband is reluctant or unwilling to perform the sexual act with his wife whom he professes to love very dearly, and who has not posed any insurmountable resistance to his alleged approaches, is indicative of a hopeless situation, and of a serious personality disorder that constitutes psychological incapacity to discharge the basic marital covenants within the contemplation of the Family Code. 7

While the law provides that the husband and the wife are obliged to live together, observe mutual love, respect and fidelity (Art. 68, Family Code), the sanction therefor is actually the "spontaneous, mutual affection between husband and wife and not any legal mandate or court order" (Cuaderno vs. Cuaderno 120 Phil. 1298). Love is useless unless it is shared with another. Indeed, no man is an island, the cruelest act of a partner in marriage is to say "I could not have cared less." This is so because an ungiven self is an unfulfilled self. The egoist has nothing but himself. In the natural order, it is sexual intimacy which brings spouses wholeness and oneness. Sexual intimacy is a gift and a participation in the mystery of creation. It is a function which enlivens the hope of procreation and ensures the continuation of family relations. It appears that there is absence of empathy between petitioner and private respondent. That is a shared feeling which between husband and wife must be experienced not only by having spontaneous sexual intimacy but a deep sense of spiritual communion. Marital union is a two-way process. An expressive interest in each other's feelings at a time it is needed by the other can go a long way in deepening the marital relationship. Marriage is definitely not for children but for two consenting adults who view the relationship with love amor gignit amorem, respect, sacrifice and a continuing commitment to compromise, conscious of its value as a sublime social institution. This Court, finding the gravity of the failed relationship in which the parties found themselves trapped in its mire of unfulfilled vows and unconsummated marital obligations, can do no less but sustain the studied judgment of respondent appellate court. IN VIEW OF THE FOREGOING PREMISES , the assailed decision of the Court of Appeals dated November 29, 1994 is hereby AFFIRMED in all respects and the petition is hereby DENIED for lack of merit. SO ORDERED. Regalado, Romero, Puno and Mendoza, JJ., concur.

SECOND DIVISION G.R. No. 109975 February 9, 2001

REPUBLIC OF THE PHILIPPINES, petitioner, vs. ERLINDA MATIAS DAGDAG, respondent. QUISUMBING, J.: For review on certiorari is the decision1 of the Court of Appeals dated April 22, 1993, in CA-G.R. CY No. 34378, which affirmed the decision of the Regional Trial Court of Olongapo City in Civil Case No. 380-0-90 declaring the marriage of Erlinda Matias Dagdag and Avelino Dagdag void under Article 36 of the Family Code. On September 7, 1975, Erlinda Matias, 16 years old, married Avelino Parangan Dagdag, 20 years old, at the Iglesia Filipina Independent Church in Cuyapo, Nueva Ecija. 2 The marriage certificate was issued by the Office of the Local Civil Registrar of the Municipality of Cuyapo, Nueva Ecija, on October 20, 1988. Erlinda and Avelino begot two children, namely: Avelyn M. Dagdag, born on January 16, 1978; and Eden M. Dagdag, born on April 21, 1982.3 Their birth certificates were issued by the Office of the Local Civil Registrar of the Municipality of Cuyapo, Nueva Ecija, also on October 20, 1988. Erlinda and Avelino lived in a house in District 8, Cuyapo, Nueva Ecija, located at the back of the house of their in-laws.4 A week after the wedding, Avelino started leaving his family without explanation. He would disappear for months, suddenly reappear for a few months, then disappear again. During the times when he was with his family, he indulged in drinking sprees with friends and would return home drunk. He would force his wife to submit to sexual intercourse and if she refused, he would inflict physical injuries on her.5 On October 1993, he left his family again and that was the last they heard from him. Erlinda was constrained to look for a job in Olongapo City as a manicurist to support herself and her children. Finally, Erlinda learned that Avelino was imprisoned for some crime, 6 and that he escaped from jail on October 22, 1985.7 A certification therefor dated February 14, 1990, was issued by Jail Warden Orlando S. Limon. Avelino remains at-large to date. On July 3, 1990, Erlinda filed with the Regional Trial Court of Olongapo City a petition for judicial declaration of nullity of marriage on the ground of psychological incapacity under Article 36 of the Family Code.8 Since Avelino could not be located, summons was served by publication in the Olongapo News, a newspaper of general circulation, on September 3, 10, and 17, 1990.9 Subsequently, a hearing was conducted to establish jurisdictional facts. Thereafter, on December 17, 1990, the date set for presentation of evidence, only Erlinda and her counsel appeared. Erlinda testified and presented her sister-in-law, Virginia Dagdag, as her only witness. Virginia testified that she is married to the brother of Avelino. She and her husband live in Olongapo City but they spend their vacations at the house of Avelino's parents in Cuyapo, Nueva Ecija. She testified that Erlinda and Avelino always quarrelled, and that Avelino never stayed for long at the couple's house. She knew that Avelino had been gone for a long time now, and that she pitied Erlinda and the children.10

Thereafter, Erlinda rested her case. The trial court issued an Order giving the investigating prosecutor until January 2, 1991, to manifest in writing whether or not he would present controverting evidence, and stating that should he fail to file said manifestation, the case would be deemed submitted for decision. In compliance with the Order, the investigating prosecutor conducted an investigation and found that there was no collusion between the parties. However, he intended to intervene in the case to avoid fabrication of evidence.11 On December 27, 1990, without waiting for the investigating prosecutor's manifestation dated December 5, 1990, the trial court rendered a decision 12 declaring the marriage of Erlinda and Avelino void under Article 36 of the Family Code, disposing thus: "WHEREFORE, and viewed from the foregoing considerations, the Court hereby declares the marriage celebrated at Cuyapo, Nueva Ecija between Erlinda Matias and Avelino Dagdag on 7 September 1975 to be null and void. The Local Civil Registrar of Cuyapo, Nueva Ecija is hereby ordered to enter into his Book of Marriage this declaration after this decision shall have become final and executory . SO ORDERED." On January 29, 1991, the investigating prosecutor filed a Motion to Set Aside Judgment on the ground that the decision was prematurely rendered since he was given until January 2, 1991 to manifest whether he was presenting controverting evidence. The Office of the Solicitor General likewise filed a Motion for Reconsideration of the decision on the ground that the same is not in accordance with the evidence and the law. After requiring Erlinda to comment, the trial court denied the Motion for Reconsideration in an Order dated August 21, 1991 as follows:13 "This resolves the Motion for Reconsideration of the Decision of this Honorable Court dated December 27, 1990 filed by the Solicitor-General. The observation of the movant is to the effect that 'Mere alcoholism and abusiveness are not enough to show psychological incapacity. Nor is abandonment. These are common in marriage. There must be showing that these traits, stemmed from psychological incapacity existing at the time of celebration of the marriage. In the case at bar, the abandonment is prolonged as the husband left his wife and children since 1983. The defendant, while in jail escaped and whose present whereabouts are unknown. He failed to support his family for the same period of time, actuations clearly indicative of the failure of the husband to comply with the essential marital obligations of marriage defined and enumerated under Article 68 of the Family Code. These findings of facts are uncontroverted.
1wphi1.nt

Defendant's character traits, by their nature, existed at the time of marriage and became manifest only after the marriage. In rerum natura, these traits are manifestations of lack of marital responsibility and appear now to be incurable. Nothing can be graver since the family members are now left to fend for themselves. Contrary to the opinion of the SolicitorGeneral, these are not common in marriage.

Let it be said that the provisions of Article 36 of the New Family Code, to assuage the sensibilities of the more numerous church, is a substitute for divorce (See: Sempio Diy, New Family Code, p. 36) in order to dissolve marriages that exist only in name. WHEREFORE, and the foregoing considered, the motion for Reconsideration aforecited is DENIED for lack of merit. SO ORDERED" The Solicitor General appealed to the Court of Appeals, raising the sole assignment of error that: THE LOWER COURT ERRED IN DECLARING APPELLEE'S MARRIAGE TO A VELINO DAGDAG NULL AND VOID ON THE GROUND OF PSYCHOLOGICAL INCAPACITY OF THE LATTER, PURSUANT TO ARTICLE 36 OF THE FAMILY CODE, THE PSYCHOLOGICAL INCAPACITY OF THE NATURE CONTEMPLATED BY THE LAW NOT HAVING BEEN PROVEN TO EXIST.14 On April 22, 1993, the Court of Appeals rendered a decision 15 affirming the decision of the trial court, disposing thus: "Avelino Dagdag is psychologically incapacitated not only because he failed to perform the duties and obligations of a married person but because he is emotionally immature and irresponsible, an alcoholic, and a criminal. Necessarily, the plaintiff is now endowed with the right to seek the judicial declaration of nullity of their marriage under Article 36 of the Family Code. Defendant's constant non-fulfillment of any of such obligations is continously (sic) destroying the integrity or wholeness of his marriage with the plaintiff. (Pineda, The Family Code of the Philippines Annotated, 1992 Ed., p. 46)." 16 Hence, the present petition for review ,17 filed by the Solicitor General. The Solicitor General contends that the alleged psychological incapacity of Avelino Dagdag is not of the nature contemplated by Article 36 of the Family Code. According to him, the Court of Appeals made an erroneous and incorrect interpretation of the phrase "psychological incapacity" and an incorrect application thereof to the facts of the case. Respondent, in her Comment, insists that the facts constituting psychological incapacity were proven by preponderance of evidence during trial. At issue is whether or not the trial court and the Court of Appeals correctly declared the marriage as null and void under Article 36 of the Family Code, on the ground that the husband suffers from psychological incapacity as he is emotionally immature and irresponsible, a habitual alcoholic, and a fugitive from justice. Article 36 of the Family Code provides "A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization." Whether or not psychological incapacity exists in a given case calling for annulment of a marriage, depends crucially, more than in any field of the law, on the facts of the case. Each case must be judged, not on the basis ofa priori assumptions, predilections or generalizations but according to its own facts. In regard to psychological incapacity as a ground for annulment of marriage, it is trite to

say that no case is on "all fours" with another case. The trial judge must take pains in examining the factual milieu and the appellate court must, as much as possible, avoid substituting its own judgment for that of the trial court.18 In Republic v. Court of Appeals and Molina, 19 the Court laid down the following GUIDELINES in the interpretation and application of Article 36 of the Family Code: "(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. x x x (2) The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological - not physical, although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or psychically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle ofejusdem generis (Salita vs. Magtolis, 233 SCRA 100, June 13, 1994), nevertheless such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists. (3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage. The evidence must show that the illness was existing when the parties exchanged their "I do's." The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto. (4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses of children and prescribing medicine to cure them but may not be psychologically capacitated to procreate, bear and raise his/her own children as an essential obligation of marriage. (5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, "mild characteriological peculiarities, mood changes, occasional emotional outbursts" cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less in will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage. (6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code20as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code21 in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision.

(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. x x x (8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The SolicitorGeneral, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor-General shall discharge the equivalent function of the defensor vinculicontemplated under Canon 1095." 22 Taking into consideration these guidelines, it is evident that Erlinda failed to comply with the abovementioned evidentiary requirements. Erlinda failed to comply with guideline No. 2 which requires that the root cause of psychological incapacity must be medically or clinically identified and sufficiently proven by experts, since no psychiatrist or medical doctor testified as to the alleged psychological incapacity of her husband. Further, the allegation that the husband is a fugitive from justice was not sufficiently proven. In fact, the crime for which he was arrested was not even alleged. The investigating prosecutor was likewise not given an opportunity to present controverting evidence since the trial court's decision was prematurely rendered. In the case of Hernandez v. Court of Appeals,23 we affirmed the dismissal of the trial court and Court of Appeals of the petition for annulment on the ground of dearth of the evidence presented. We further explained therein that "Moreover, expert testimony should have been presented to establish the precise cause of private respondent's psychological incapacity, if any, in order to show that it existed at the inception of the marriage. The burden of proof to show the nullity of the marriage rests upon petitioner. The Court is mindful of the policy of the 1987 Constitution to protect and strengthen the family as the basic autonomous social institution and marriage as the foundation of the family. (Art. II, Sec. 12, Art. XV, Secs. 1-2) Thus, any doubt should be resolved in favor of the validity of the marriage. (citing Republic of the Philippines v. Court of Appeals, supra. )"24 WHEREFORE, the present petition is GRANTED. The assailed Decision of the Court of Appeals dated April 22, 1993, in CA-G.R. CY No. 34378 is REVERSED and SET ASIDE. No pronouncement as to costs. SO ORDERED. Bellosillo, Mendoza, Buena, and De Leon, Jr., JJ., concur.

THIRD DIVISION

[G.R. No. 136490. October 19, 2000]

BRENDA B. MARCOS, petitioner, MARCOS, respondent. DECISION

PANGANIBAN, J.:

vs. WILSON

G.

Psychological incapacity, as a ground for declaring the nullity of a marriage, may be established by the totality of evidence presented. There is no requirement, however, that the respondent should be examined by a physician or a psychologist as a conditio sine qua non for such declaration.
The Case

Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the July 24, 1998 Decision[1] of the Court of Appeals (CA) in CA-GR CV No. 55588, which disposed as follows: "WHEREFORE, the contested decision is set aside and the marriage between the parties is hereby declared valid."[2] Also challenged by petitioner is the December 3, 1998 CA Resolution denying her Motion for Reconsideration. Earlier, the Regional Trial Court (RTC) had ruled thus: "WHEREFORE, the marriage between petitioner Brenda B. Marcos and respondent Wilson G. Marcos, solemnized on September 6, 1982 in Pasig City is declared null and void ab initio pursuant to Art. 36 of the Family Code. The conjugal properties, if any, is dissolved [sic] in accordance with Articles 126 and 129 of the same Code in relation to Articles 50, 51 and 52 relative to the delivery of the legitime of [the] parties' children. In the best interest and welfare of the minor children, their custody is granted to petitioner subject to the visitation rights of respondent. "Upon finality of this Decision, furnish copy each to the Office of the Civil Registrar of Pasig City where the marriage was solemnized, the National Census and Statistics Office, Manila and the Register of Deeds of Mandaluyong City for their appropriate action consistent with this Decision. "SO ORDERED."

The Facts

The facts as found by the Court of Appeals are as follows: "It was established during the trial that the parties were married twice: (1) on September 6, 1982 which was solemnized by Judge Eriberto H. Espiritu at the Municipal Court of Pasig (Exh. A); and (2) on May 8, 1983 which was solemnized by Rev. Eduardo L. Eleazar,Command Chaplain, at the Presidential Security Command Chapel in Malacaang Park, Manila (Exh. A-1). Out of their marriage, five (5) children were born (Exhs. B, C, D, E and F). "Appellant Wilson G. Marcos joined the Armed Forces of the Philippines in 1973. Later on, he was transferred to the Presidential Security Command in Malacaang during the Marcos Regime. Appellee Brenda B. Marcos, on the other hand, joined the Women's Auxilliary Corps under the Philippine Air Force in 1978. After the Edsa Revolution, both of them sought a discharge from the military service. "They first met sometime in 1980 when both of them were assigned at the Malacaang Palace, she as an escort of Imee Marcos and he as a Presidential Guard of President Ferdinand Marcos. Through telephone conversations, they became acquainted and eventually became sweethearts. "After their marriage on September 6, 1982, they resided at No. 1702 Daisy Street, Hulo Bliss, Mandaluyong, a housing unit which she acquired from the Bliss Development Corporation when she was still single. "After the downfall of President Marcos, he left the military service in 1987 and then engaged in different business ventures that did not however prosper. As a wife, she always urged him to look for work so that their children would see him, instead of her, as the head of the family and a good provider. Due to his failure to engage in any gainful employment, they would often quarrel and as a consequence, he would hit and beat her. He would even force her to have sex with him despite her weariness. He would also inflict physical harm on their children for a slight mistake and was so severe in the way he chastised them. Thus, for several times during their cohabitation, he would leave their house. In 1992, they were already living separately. "All the while, she was engrossed in the business of selling "magic uling" and chickens. While she was still in the military, she would first make deliveries early in the morning before going to Malacaang. When she was discharged from the military service, she concentrated on her business. Then, she became a supplier in the Armed

Forces of the Philippines until she was able to put up a trading and construction company, NS Ness Trading and Construction Development Corporation. "The 'straw that broke the camel's back' took place on October 16, 1994, when they had a bitter quarrel. As they were already living separately, she did not want him to stay in their house anymore. On that day, when she saw him in their house, she was so angry that she lambasted him. He then turned violent, inflicting physical harm on her and even on her mother who came to her aid. The following day, October 17, 1994, she and their children left the house and sought refuge in her sister's house. "On October 19, 1994, she submitted herself [to] medical examination at the Mandaluyong Medical Center where her injuries were diagnosed as contusions (Exh. G, Records, 153). "Sometime in August 1995, she together with her two sisters and driver, went to him at the Bliss unit in Mandaluyong to look for their missing child, Niko. Upon seeing them, he got mad. After knowing the reason for their unexpected presence, he ran after them with a samurai and even [beat] her driver. "At the time of the filing of this case, she and their children were renting a house in Camella, Paraaque, while the appellant was residing at the Bliss unit in Mandaluyong. "In the case study conducted by Social Worker Sonia C. Millan, the children described their father as cruel and physically abusive to them (Exh. UU, Records, pp. 85-100). "The appellee submitted herself to psychologist Natividad A. Dayan, Ph.D., for psychological evaluation (Exh. YY, Records, pp. 207-216), while the appellant on the other hand, did not. "The court a quo found the appellant to be psychologically incapacitated to perform his marital obligations mainly because of his failure to find work to support his family and his violent attitude towards appellee and their children, x x x."[3]
Ruling of the Court of Appeals

Reversing the RTC, the CA held that psychological incapacity had not been established by the totality of the evidence presented. It ratiocinated in this wise:

"Essential in a petition for annulment is the allegation of the root cause of the spouse's psychological incapacity which should also be medically or clinically identified, sufficiently proven by experts and clearly explained in the decision. The incapacity must be proven to be existing at the time of the celebration of the marriage and shown to be medically or clinically permanent or incurable. It must also be grave enough to bring about the disability of the parties to assume the essential obligations of marriage as set forth in Articles 68 to 71 and Articles 220 to 225 of the Family Code and such non-complied marital obligations must similarly be alleged in the petition, established by evidence and explained in the decision. "In the case before us, the appellant was not subjected to any psychological or psychiatric evaluation. The psychological findings about the appellant by psychiatrist Natividad Dayan were based only on the interviews conducted with the appellee. Expert evidence by qualified psychiatrists and clinical psychologists is essential if only to prove that the parties were or any one of them was mentally or psychically ill to be truly incognitive of the marital obligations he or she was assuming, or as would make him or her x x x unable to assume them. In fact, he offered testimonial evidence to show that he [was] not psychologically incapacitated. The root cause of his supposed incapacity was not alleged in the petition, nor medically or clinically identified as a psychological illness or sufficiently proven by an expert. Similarly, there is no evidence at all that would show that the appellant was suffering from an incapacity which [was] psychological or mental - not physical to the extent that he could not have known the obligations he was assuming: that the incapacity [was] grave, ha[d] preceded the marriage and [was] incurable."[4] Hence, this Petition.[5]
Issues

In her Memorandum,[6] petitioner presents for this Court's consideration the following issues:
"I. Whether or not the Honorable Court of Appeals could set aside the findings by the Regional Trial Court of psychological incapacity of a respondent in a Petition for declaration of nullity of marriage simply because the respondent did not subject himself to psychological evaluation. II. Whether or not the totality of evidence presented and the demeanor of all the witnesses should be the basis of the determination of the merits of the Petition."[7]

The Court's Ruling

We agree with petitioner that the personal medical or psychological examination of respondent is not a requirement for a declaration of psychological incapacity. Nevertheless, the totality of the evidence she presented does not show such incapacity.
Preliminary Issue: Need for Personal Medical Examination

Petitioner contends that the testimonies and the results of various tests that were submitted to determine respondent's psychological incapacity to perform the obligations of marriage should not have been brushed aside by the Court of Appeals, simply because respondent had not taken those tests himself. Petitioner adds that the CA should have realized that under the circumstances, she had no choice but to rely on other sources of information in order to determine the psychological capacity of respondent, who had refused to submit himself to such tests. In Republic v. CA and Molina,[8] the down by this Court as follows:
"1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an entire Article on the Family, recognizing it 'as the foundation of the nation.' It decrees marriage as legally 'inviolable,' thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be 'protected' by the state.
guidelines governing the application and the interpretation of psychological incapacity referred to in Article 36 of the Family Code[9] were

laid

xxxxxxxxx
2) The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological - not physical, although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or psychically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle of ejusdem generis, nevertheless such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists. 3) The incapacity must be proven to be existing at 'the time of the celebration' of the marriage. The evidence must show that the illness was existing when the parties

exchanged their 'I do's.' The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto. 4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex.Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses of children and prescribing medicine to cure them but not be psychologically capacitated to procreate, bear and raise his/her own children as an essential obligation of marriage. 5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, 'mild characteriological peculiarities, mood changes, occasional emotional outbursts cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage. 6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision. 7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts.

xxxxxxxxx
(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095."[10]

The guidelines incorporate the three basic requirements earlier mandated by the Court in Santos v. Court of Appeals:[11] "psychological incapacity must be characterized by (a) gravity (b) juridical antecedence, and (c) incurability." The foregoing guidelines do not require that a physician examine the person to be declared psychologically incapacitated. In fact, the root cause may be "medically or clinically identified." What is important is the presence of evidence that can adequately establish the party's psychological condition. For indeed, if the totality of evidence

presented is enough to sustain a finding of psychological incapacity, then actual medical examination of the person concerned need not be resorted to.
Main Issue: Totality of Evidence Presented

The main question, then, is whether the totality of the evidence presented in the present case -- including the testimonies of petitioner, the common children, petitioner's sister and the social worker -- was enough to sustain a finding that respondent was psychologically incapacitated. We rule in the negative. Although this Court is sufficiently convinced that respondent failed to provide material support to the family and may have resorted to physical abuse and abandonment, the totality of his acts does not lead to a conclusion of psychological incapacity on his part. There is absolutely no showing that his "defects" were already present at the inception of the marriage or that they are incurable. Verily, the behavior of respondent can be attributed to the fact that he had lost his job and was not gainfully employed for a period of more than six years. It was during this period that he became intermittently drunk, failed to give material and moral support, and even left the family home. Thus, his alleged psychological illness was traced only to said period and not to the inception of the marriage. Equally important, there is no evidence showing that his condition is incurable, especially now that he is gainfully employed as a taxi driver. Article 36 of the Family Code, we stress, is not to be confused with a divorce law that cuts the marital bond at the time the causes therefor manifest themselves. It refers to a serious psychological illness afflicting a party even before the celebration of the marriage. It is a malady so grave and so permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is about to assume. These marital obligations are those provided under Articles 68 to 71, 220, 221 and 225 of the Family Code. Neither is Article 36 to be equated with legal separation, in which the grounds need not be rooted in psychological incapacity but on physical violence, moral pressure, moral corruption, civil interdiction, drug addiction, habitual alcoholism, sexual infidelity, abandonment and the like.[12] At best, the evidence presented by petitioner refers only to grounds for legal separation, not for declaring a marriage void.

Because Article 36 has been abused as a convenient divorce law, this Court laid down the procedural requirements for its invocation in Molina. Petitioner, however, has not faithfully observed them. In sum, this Court cannot declare the dissolution of the marriage for failure of petitioner to show that the alleged psychological incapacity is characterized by gravity, juridical antecedence and incurability; and for her failure to observe the guidelines outlined in Molina. WHEREFORE, the Petition is DENIED and assailed Decision AFFIRMED, except that portion requiring personal medical examination as a conditio sine qua non to a finding of psychological incapacity. No costs. SO ORDERED. Melo, (Chairman), Vitug, Purisima, and Gonzaga-Reyes, JJ., concur.
FIRST DIVISION G.R. No. 137590 March 26, 2001

FLORENCE MALCAMPO-SIN, petitioner, vs. PHILIPP T. SIN, respondent. PARDO, J.: The Family Code emphasizes the permanent nature of marriage, hailing it as the foundation of the family.1 It is this inviolability which is central to our traditional and religious concepts of morality and provides the very bedrock on which our society finds stability. 2 Marriage is immutable and when both spouses give their consent to enter it, their consent becomes irrevocable, unchanged even by their independent wills. However, this inviolability depends on whether the marriage exists and is valid. If it is void ab initio, the "permanence" of the union becomes irrelevant, and the Court can step in to declare it so. Article 36 of the Family Code is the justification. 3 Where it applies and is duly proven, a judicial declaration can free the parties from the rights, obligations, burdens and consequences stemming from their marriage. A declaration of nullity of marriage under Article 36 of the Family Code requires the application of procedural and substantive guidelines. While compliance with these requirements mostly devolves upon petitioner, the State is likewise mandated to actively intervene in the procedure. Should there be non-compliance by the State with its statutory duty, there is a need to remand the case to the lower court for proper trial. The Case

What is before the Court4 is an appeal from a decision of the Court of Appeals 5 which affirmed the decision of the Regional Trial Court, Branch 158, Pasig City 6 dismissing petitioner Florence Malcampo-Sin's (hereafter "Florence") petition for declaration of nullity of marriage due to psychological incapacity for insufficiency of evidence. The Facts On January 4, 1987, after a two-year courtship and engagement, Florence and respondent Philipp T. Sin (hereafter "Philipp"), a Portugese citizen, were married at St. Jude Catholic Parish in San Miguel, Manila.7 On September 20, 1994, Florence filed with the Regional Trial Court, Branch 158, Pasig City, a complaint for "declaration of nullity of marriage" against Philipp. 8 Trial ensued and the parties presented their respective documentary and testimonial evidence. On June 16, 1995, the trial court dismissed Florence's petition. 9 On December 19, 1995, Florence filed with the trial court a notice of appeal to the Court of Appeals.10 After due proceedings, on April 30, 1998, the Court of Appeals promulgated its decision, the dispositive portion of which reads: "IN THE LIGHT OF ALL THE FOREGOING, the Appeal is DISMISSED. The Decision appealed from is AFFIRMED. Cost against the Appellant." 11 On June 23, 1998, petitioner filed with the Court of Appeals a motion for reconsideration of the aforequoted decision.12 On January 19, 1999, the Court of Appeals denied petitioner's motion for reconsideration. 13 Hence, this appeal.14 The Court's Ruling We note that throughout the trial in the lower court, the State did not participate in the proceedings. While Fiscal Jose Danilo C. Jabson15 filed with the trial court a manifestation dated November 16, 1994, stating that he found no collusion between the parties, 16 he did not actively participate therein. Other than entering his appearance at certain hearings of the case, nothing more was heard from him. Neither did the presiding Judge take any step to encourage the fiscal to contribute to the proceedings. The Family Code mandates: "ARTICLE 48. In all cases of annulment or declaration of absolute nullity of marriage , the Court shall orderthe prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed (italics ours). "In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment."

It can be argued that since the lower court dismissed the petition, the evil sought to be prevented (i.e., dissolution of the marriage) did not come about, hence, the lack of participation of the State was cured. Not so. The task of protecting marriage as an inviolable social institution requires vigilant and zealous participation and not mere pro-forma compliance. The protection of marriage as a sacred institution requires not just the defense of a true and genuine union but the exposure of an invalid one as well. This is made clear by the following pronouncement: "(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, 17 briefly stating therein his reasons for his agreement or opposition as the case may be, to the petition . The SolicitorGeneral shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095 (italics ours)."18 The records are bereft of any evidence that the State participated in the prosecution of the case not just at the trial level but on appeal with the Court of Appeals as well. Other than the "manifestation" filed with the trial court on November 16, 1994, the State did not file any pleading, motion or position paper, at any stage of the proceedings. In Republic of the Philippines v. Erlinda Matias Dagdag ,19 while we upheld the validity of the marriage, we nevertheless characterized the decision of the trial court as "prematurely rendered" since the investigating prosecutor was not given an opportunity to present controverting evidence before the judgment was rendered. This stresses the importance of the participation of the State. Having so ruled, we decline to rule on the factual disputes of the case, this being within the province of the trial court upon proper re-trial. Obiter Dictum For purposes of re-trial, we guide the parties thus: In Republic vs. Court of Appeals,20 the guidelines in the interpretation and application of Article 36 of the Family Code are as follows (omitting guideline [8] in the enumeration as it was already earlier quoted): "(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an entire Article on the Family, recognizing it "as the foundation of the nation." It decrees marriage as legally "inviolable," thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be "protected" by the state. The Family Code echoes this constitutional edict on marriage and the family and emphasizes their permanence, inviolability and solidarity. "(2) The root cause of the psychological incapacity must be: a) medically or clinically identified, b) alleged in the complaint, c) sufficiently proven by experts and d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological not physical, although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or psychically (sic) ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle ofejusdem generis, nevertheless such root cause must be

identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists. "(3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage. The evidence must show that the illness was existing when the parties exchanged their "I do's." The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto. "(4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses of children and prescribing medicine to cure them but may not be psychologically capacitated to procreate, bear and raise his/her own children as an essential obligation of marriage. "(5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, "mild characteriological peculiarities, mood changes, occasional emotional outbursts" cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage. "(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision. "(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts." The Fallo WHEREFORE, the Court REVERSES and SETS ASIDE the appealed decision of the Court of Appeals in CA-G.R. CV No. 51304, promulgated on April 30, 1998 and the decision of the Regional Trial Court, Branch 158, Pasig City in Civil Case No. 3190, dated June 16, 1995. Let the case be REMANDED to the trial court for proper trial. No costs. SO ORDERED. Davide, Jr., C .J ., Puno, Kapunan and Ynares-Santiago, JJ ., concur. FIRST DIVISION

G.R. No. 132529. February 2, 2001 SUSAN NICDAO CARIO, petitioner, vs. SUSAN YEE CARIO, respondent. DECISION YNARES-SANTIAGO, J.: The issue for resolution in the case at bar hinges on the validity of the two marriages contracted by the deceased SPO4 Santiago S. Cario, whose death benefits is now the subject of the controversy between the two Susans whom he married.
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Before this Court is a petition for review on certiorari seeking to set aside the decision 1 of the Court of Appeals in CA-G.R. CV No. 51263, which affirmed in toto the decision 2 of the Regional Trial Court of Quezon City, Branch 87, in Civil Case No. Q-93-18632. During the lifetime of the late SPO4 Santiago S. Cario, he contracted two marriages, the first was on June 20, 1969, with petitioner Susan Nicdao Cario (hereafter referred to as Susan Nicdao), with whom he had two offsprings, namely, Sahlee and Sandee Cario; and the second was on November 10, 1992, with respondent Susan Yee Cario (hereafter referred to as Susan Yee), with whom he had no children in their almost ten year cohabitation starting way back in 1982. In 1988, SPO4 Santiago S. Cario became ill and bedridden due to diabetes complicated by pulmonary tuberculosis. He passed away on November 23, 1992, under the care of Susan Yee, who spent for his medical and burial expenses. Both petitioner and respondent filed claims for monetary benefits and financial assistance pertaining to the deceased from various government agencies. Petitioner Susan Nicdao was able to collect a total of P146,000.00 from MBAI, PCCUI, Commutation, NAPOLCOM, [and] Pag-ibig, 3 while respondent Susan Yee received a total of P21,000.00 from GSIS Life, Burial (GSIS) and burial (SSS). 4 On December 14, 1993, respondent Susan Yee filed the instant case for collection of sum of money against petitioner Susan Nicdao praying, inter alia, that petitioner be ordered to return to her at least one-half of the one hundred forty-six thousand pesos (P146,000.00) collectively denominated as death benefits which she (petitioner) received from MBAI, PCCUI, Commutation, NAPOLCOM, [and] Pag-ibig. Despite service of summons, petitioner failed to file her answer, prompting the trial court to declare her in default. Respondent Susan Yee admitted that her marriage to the deceased took place during the subsistence of, and without first obtaining a judicial declaration of nullity of, the marriage between petitioner and the deceased. She, however, claimed that she had no knowledge of the previous marriage and that she became aware of it only at the funeral of the deceased, where she met petitioner who introduced herself as the wife of the deceased. To bolster her action for collection of sum of money, respondent contended that the marriage of petitioner and the deceased is void ab initio because the same was solemnized without the required marriage license. In support thereof, respondent presented: 1) the marriage certificate of the deceased and the petitioner which bears no marriage license number; 5 and 2) a certification dated March 9, 1994, from the Local Civil Registrar of San Juan, Metro Manila, which reads

This is to certify that this Office has no record of marriage license of the spouses SANTIAGO CARINO (sic) and SUSAN NICDAO, who are married in this municipality on June 20, 1969. Hence, we cannot issue as requested a true copy or transcription of Marriage License number from the records of this archives. This certification is issued upon the request of Mrs. Susan Yee Cario for whatever legal purpose it may serve. 6 On August 28, 1995, the trial court ruled in favor of respondent, Susan Yee, holding as follows: WHEREFORE, the defendant is hereby ordered to pay the plaintiff the sum of P73,000.00, half of the amount which was paid to her in the form of death benefits arising from the death of SPO4 Santiago S. Cario, plus attorneys fees in the amount of P5,000.00, and costs of suit. IT IS SO ORDERED. 7 On appeal by petitioner to the Court of Appeals, the latter affirmed in toto the decision of the trial court. Hence, the instant petition, contending that: I. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE FINDINGS OF THE LOWER COURT THAT VDA. DE CONSUEGRA VS. GSIS IS APPLICABLE TO THE CASE AT BAR. II. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN APPLYING EQUITY IN THE INSTANT CASE INSTEAD OF THE CLEAR AND UNEQUIVOCAL MANDATE OF THE FAMILY CODE. III. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT FINDING THE CASE OF VDA. DE CONSUEGRA VS GSIS TO HAVE BEEN MODIFIED, AMENDED AND EVEN ABANDONED BY THE ENACTMENT OF THE FAMILY CODE. 8 Under Article 40 of the Family Code, the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. Meaning, where the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law, for said projected marriage to be free from legal infirmity, is a final judgment declaring the previous marriage void. 9 However, for purposes other than remarriage, no judicial action is necessary to declare a marriage an absolute nullity. For other purposes, such as but not limited to the determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even after the death of the parties thereto, and even in a suit not directly instituted to question the validity of said marriage, so long as it is essential to the determination of the case. 10 In such instances, evidence must be adduced, testimonial or documentary, to prove the existence of grounds rendering such a previous marriage an absolute nullity. These need not be limited solely to an earlier final judgment of a court declaring such previous marriage void. 11

It is clear therefore that the Court is clothed with sufficient authority to pass upon the validity of the two marriages in this case, as the same is essential to the determination of who is rightfully entitled to the subject death benefits of the deceased. Under the Civil Code, which was the law in force when the marriage of petitioner Susan Nicdao and the deceased was solemnized in 1969, a valid marriage license is a requisite of marriage, 12 and the absence thereof, subject to certain exceptions, 13 renders the marriage void ab initio. 14 In the case at bar, there is no question that the marriage of petitioner and the deceased does not fall within the marriages exempt from the license requirement. A marriage license, therefore, was indispensable to the validity of their marriage. This notwithstanding, the records reveal that the marriage contract of petitioner and the deceased bears no marriage license number and, as certified by the Local Civil Registrar of San Juan, Metro Manila, their office has no record of such marriage license. In Republic v. Court of Appeals, 15 the Court held that such a certification is adequate to prove the non-issuance of a marriage license. Absent any circumstance of suspicion, as in the present case, the certification issued by the local civil registrar enjoys probative value, he being the officer charged under the law to keep a record of all data relative to the issuance of a marriage license. Such being the case, the presumed validity of the marriage of petitioner and the deceased has been sufficiently overcome. It then became the burden of petitioner to prove that their marriage is valid and that they secured the required marriage license. Although she was declared in default before the trial court, petitioner could have squarely met the issue and explained the absence of a marriage license in her pleadings before the Court of Appeals and this Court. But petitioner conveniently avoided the issue and chose to refrain from pursuing an argument that will put her case in jeopardy. Hence, the presumed validity of their marriage cannot stand. It is beyond cavil, therefore, that the marriage between petitioner Susan Nicdao and the deceased, having been solemnized without the necessary marriage license, and not being one of the marriages exempt from the marriage license requirement, is undoubtedly void ab initio. It does not follow from the foregoing disquisition, however, that since the marriage of petitioner and the deceased is declared void ab initio, the death benefits under scrutiny would now be awarded to respondent Susan Yee. To reiterate, under Article 40 of the Family Code, for purposes of remarriage, there must first be a prior judicial declaration of the nullity of a previous marriage, though void, before a party can enter into a second marriage, otherwise, the second marriage would also be void. Accordingly, the declaration in the instant case of nullity of the previous marriage of the deceased and petitioner Susan Nicdao does not validate the second marriage of the deceased with respondent Susan Yee. The fact remains that their marriage was solemnized without first obtaining a judicial decree declaring the marriage of petitioner Susan Nicdao and the deceased void. Hence, the marriage of respondent Susan Yee and the deceased is, likewise, void ab initio. One of the effects of the declaration of nullity of marriage is the separation of the property of the spouses according to the applicable property regime. 16 Considering that the two marriages are void ab initio, the applicable property regime would not be absolute community or conjugal partnership of property, but rather, be governed by the provisions of Articles 147 and 148 of the Family Code on Property Regime of Unions Without Marriage.

Under Article 148 of the Family Code, which refers to the property regime of bigamous marriages, adulterous relationships, relationships in a state of concubine, relationships where both man and woman are married to other persons, multiple alliances of the same married man, 17 ... [O]nly the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions ... In this property regime, the properties acquired by the parties through their actual joint contribution shall belong to the co-ownership. Wages and salaries earned by each party belong to him or her exclusively. Then too, contributions in the form of care of the home, children and household, or spiritual or moral inspiration, are excluded in this regime. 18 Considering that the marriage of respondent Susan Yee and the deceased is a bigamous marriage, having been solemnized during the subsistence of a previous marriage then presumed to be valid (between petitioner and the deceased), the application of Article 148 is therefore in order. The disputed P146,000.00 from MBAI [AFP Mutual Benefit Association, Inc.], NAPOLCOM, Commutation, Pag-ibig, and PCCUI, are clearly renumerations, incentives and benefits from governmental agencies earned by the deceased as a police officer. Unless respondent Susan Yee presents proof to the contrary, it could not be said that she contributed money, property or industry in the acquisition of these monetary benefits. Hence, they are not owned in common by respondent and the deceased, but belong to the deceased alone and respondent has no right whatsoever to claim the same. By intestate succession, the said death benefits of the deceased shall pass to his legal heirs. And, respondent, not being the legal wife of the deceased is not one of them. As to the property regime of petitioner Susan Nicdao and the deceased, Article 147 of the Family Code governs. This article applies to unions of parties who are legally capacitated and not barred by any impediment to contract marriage, but whose marriage is nonetheless void for other reasons, like the absence of a marriage license. Article 147 of the Family Code reads Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership. In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the formers efforts consisted in the care and maintenance of the family and of the household. xxx When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation.

In contrast to Article 148, under the foregoing article, wages and salaries earned by either party during the cohabitation shall be owned by the parties in equal shares and will be divided equally between them, even if only one party earned the wages and the other did not contribute thereto. 19 Conformably, even if the disputed death benefits were earned by the deceased alone as a government employee, Article 147 creates a co-ownership in respect thereto, entitling the petitioner to share one-half thereof. As there is no allegation of bad faith in the present case, both parties of the first marriage are presumed to be in good faith. Thus, one-half of the subject death benefits under scrutiny shall go to the petitioner as her share in the property regime, and the other half pertaining to the deceased shall pass by, intestate succession, to his legal heirs, namely, his children with Susan Nicdao. In affirming the decision of the trial court, the Court of Appeals relied on the case of Vda. de Consuegra v. Government Service Insurance System, 20 where the Court awarded one-half of the retirement benefits of the deceased to the first wife and the other half, to the second wife, holding that: ... [S]ince the defendants first marriage has not been dissolved or declared void the conjugal partnership established by that marriage has not ceased. Nor has the first wife lost or relinquished her status as putative heir of her husband under the new Civil Code, entitled to share in his estate upon his death should she survive him. Consequently, whether as conjugal partner in a still subsisting marriage or as such putative heir she has an interest in the husbands share in the property here in dispute.... And with respect to the right of the second wife, this Court observed that although the second marriage can be presumed to be void ab initio as it was celebrated while the first marriage was still subsisting, still there is need for judicial declaration of such nullity. And inasmuch as the conjugal partnership formed by the second marriage was dissolved before judicial declaration of its nullity, [t]he only just and equitable solution in this case would be to recognize the right of the second wife to her share of one-half in the property acquired by her and her husband, and consider the other half as pertaining to the conjugal partnership of the first marriage. 21 It should be stressed, however, that the aforecited decision is premised on the rule which requires a prior and separate judicial declaration of nullity of marriage. This is the reason why in the said case, the Court determined the rights of the parties in accordance with their existing property regime. 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 only for purposes of remarriage. That is, if a party who is previously married wishes to contract a second marriage, he or she has to obtain first a judicial decree declaring the first marriage void, before he or she could contract said second marriage, otherwise the second marriage would be void. The same rule applies even if the first marriage is patently void because the parties are not free to determine for themselves the validity or invalidity or their marriage. However, for purposes other than to remarry, like for filing a case for collection of sum of money anchored on a marriage claimed to be valid, no prior and separate judicial declaration of nullity is necessary. All that a party has to do is to present evidence, testimonial or documentary, that would prove that the marriage from which his or her rights flow is in fact valid. Thereupon, the court, if material to the determination of the issues before it, will rule on the status of the marriage involved and proceed to determine the rights of the parties in accordance with the applicable laws and jurisprudence. Thus, in Nial v. Bayadog, 23 the Court explained: [T]he court may pass upon the validity of marriage even in a suit not directly instituted to question the same so long as it is essential to the determination of the case. This is without prejudice to any issue that may arise in the case. When such need arises, a final judgment of declaration of nullity is necessary even if the purpose is other than to remarry. The clause on the basis of a final judgment

declaring such previous marriage void in Article 40 of the Family Code connoted that such final judgment need not be obtained only for purpose of remarriage. WHEREFORE, the petition is GRANTED, and the decision of the Court of Appeals in CA-G.R. CV No. 51263 which affirmed the decision of the Regional Trial Court of Quezon City ordering petitioner to pay respondent the sum of P73,000.00 plus attorneys fees in the amount of P5,000.00, is REVERSED and SET ASIDE. The complaint in Civil Case No. Q-93-18632, is hereby DISMISSED. No pronouncement as to costs.
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SO ORDERED. Davide, Jr., C.J. (Chairman), Kapunan, and Pardo, JJ., concur. Puno J., on official leave. FIRST DIVISION A.M. No. MTJ-00-1329 March 8, 2001 (Formerly A.M. No. OCA IPI No. 99-706-MTJ) HERMINIA BORJA-MANZANO, petitioner, vs. JUDGE ROQUE R. SANCHEZ, MTC, Infanta, Pangasinan, respondent. RESOLUTION DAVIDE, JR., C.J.: The solemnization of a marriage between two contracting parties who were both bound by a prior existing marriage is the bone of contention of the instant complaint against respondent Judge Roque R. Sanchez, Municipal Trial Court, Infanta, Pangasinan. For this act, complainant Herminia BorjaManzano charges respondent Judge with gross ignorance of the law in a sworn Complaint-Affidavit filed with the Office of the Court Administrator on 12 May 1999. Complainant avers that she was the lawful wife of the late David Manzano, having been married to him on 21 May 1966 in San Gabriel Archangel Parish, Araneta Avenue, Caloocan City. 1 Four children were born out of that marriage.2 On 22 March 1993, however, her husband contracted another marriage with one Luzviminda Payao before respondent Judge. 3 When respondent Judge solemnized said marriage, he knew or ought to know that the same was void and bigamous, as the marriage contract clearly stated that both contracting parties were "separated." Respondent Judge, on the other hand, claims in his Comment that when he officiated the marriage between Manzano and Payao he did not know that Manzano was legally married. What he knew was that the two had been living together as husband and wife for seven years already without the benefit of marriage, as manifested in their joint affidavit. 4 According to him, had he known that the late Manzano was married, he would have advised the latter not to marry again; otherwise, he (Manzano) could be charged with bigamy. He then prayed that the complaint be dismissed for lack of merit and for being designed merely to harass him.

After an evaluation of the Complaint and the Comment, the Court Administrator recommended that respondent Judge be found guilty of gross ignorance of the law and be ordered to pay a fine of P2,000, with a warning that a repetition of the same or similar act would be dealt with more severely. On 25 October 2000, this Court required the parties to manifest whether they were willing to submit the case for resolution on the basis of the pleadings thus filed. Complainant answered in the affirmative. For his part, respondent Judge filed a Manifestation reiterating his plea for the dismissal of the complaint and setting aside his earlier Comment. He therein invites the attention of the Court to two separate affidavits5 of the late Manzano and of Payao, which were allegedly unearthed by a member of his staff upon his instruction. In those affidavits, both David Manzano and Luzviminda Payao expressly stated that they were married to Herminia Borja and Domingo Relos, respectively; and that since their respective marriages had been marked by constant quarrels, they had both left their families and had never cohabited or communicated with their spouses anymore. Respondent Judge alleges that on the basis of those affidavits, he agreed to solemnize the marriage in question in accordance with Article 34 of the Family Code. We find merit in the complaint. Article 34 of the Family Code provides: No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties and found no legal impediment to the marriage. For this provision on legal ratification of marital cohabitation to apply, the following requisites must concur: 1. The man and woman must have been living together as husband and wife for at least five years before the marriage; 2. The parties must have no legal impediment to marry each other; 3. The fact of absence of legal impediment between the parties must be present at the time of marriage; 4. The parties must execute an affidavit stating that they have lived together for at least five years [and are without legal impediment to marry each other]; and 5. The solemnizing officer must execute a sworn statement that he had ascertained the qualifications of the parties and that he had found no legal impediment to their marriage. 6 Not all of these requirements are present in the case at bar. It is significant to note that in their separate affidavits executed on 22 March 1993 and sworn to before respondent Judge himself, David Manzano and Luzviminda Payao expressly stated the fact of their prior existing marriage. Also, in their marriage contract, it was indicated that both were "separated."

Respondent Judge knew or ought to know that a subsisting previous marriage is a diriment impediment, which would make the subsequent marriage null and void. 7 In fact, in his Comment, he stated that had he known that the late Manzano was married he would have discouraged him from contracting another marriage. And respondent Judge cannot deny knowledge of Manzanos and Payaos subsisting previous marriage, as the same was clearly stated in their separate affidavits which were subscribed and sworn to before him. The fact that Manzano and Payao had been living apart from their respective spouses for a long time already is immaterial. Article 63(1) of the Family Code allows spouses who have obtained a decree of legal separation to live separately from each other, but in such a case the marriage bonds are not severed. Elsewise stated, legal separation does not dissolve the marriage tie, much less authorize the parties to remarry. This holds true all the more when the separation is merely de facto, as in the case at bar. Neither can respondent Judge take refuge on the Joint Affidavit of David Manzano and Luzviminda Payao stating that they had been cohabiting as husband and wife for seven years. Just like separation, free and voluntary cohabitation with another person for at least five years does not severe the tie of a subsisting previous marriage. Marital cohabitation for a long period of time between two individuals who are legally capacitated to marry each other is merely a ground for exemption from marriage license. It could not serve as a justification for respondent Judge to solemnize a subsequent marriage vitiated by the impediment of a prior existing marriage. Clearly, respondent Judge demonstrated gross ignorance of the law when he solemnized a void and bigamous marriage. The maxim "ignorance of the law excuses no one" has special application to judges,8 who, under Rule 1.01 of the Code of Judicial Conduct, should be the embodiment of competence, integrity, and independence. It is highly imperative that judges be conversant with the law and basic legal principles.9 And when the law transgressed is simple and elementary, the failure to know it constitutes gross ignorance of the law.10 ACCORDINGLY, the recommendation of the Court Administrator is hereby ADOPTED, with the MODIFICATION that the amount of fine to be imposed upon respondent Judge Roque Sanchez is increased to P20,000. SO ORDERED. Puno, Kapunan, Pardo, and Ynares-Santiago, JJ., concur.

FIRST DIVISION

[G.R. No. 130087. September 24, 2003]

DIANA M. BARCELONA, petitioner, vs. COURT OF APPEALS and TADEO R. BENGZON, respondents. DECISION
CARPIO, J.:

The Case The Petition for Review before us assails the 30 May 1997 Decision as well as the 7 August 1997 Resolution of the Court of Appeals in CA-G.R. SP No. 43393. The Court of Appeals affirmed the Order dated 21 January 1997 of the Regional Trial Court of Quezon City, Branch 106, in Civil Case No. Q95-24471. The Regional Trial Court refused to dismiss private respondents Petition for Annulment of Marriage for failure to state a cause of action and for violation of Supreme Court Administrative Circular No. 04-94. The assailed Resolution denied petitioners motion for reconsideration.
[1] [2]

The Facts On 29 March 1995, private respondent Tadeo R. Bengzon (respondent Tadeo) filed a Petition for Annulment of Marriage against petitioner Diana M. Barcelona (petitioner Diana). The case was docketed as Civil Case No. Q95-23445 (first petition) before the Regional Trial Court of Quezon City, Branch 87. On 9 May 1995, respondent Tadeo filed a Motion to Withdraw Petition which the trial court granted in its Order dated 7 June 1995.
[3]

On 21 July 1995, respondent Tadeo filed anew a Petition for Annulment of Marriage against petitioner Diana. This time, the case was docketed as Civil Case No. Q-95-24471 (second petition) before the Regional Trial Court of Quezon City, Branch 106 (trial court). Petitioner Diana filed a Motion to Dismiss the second petition on two grounds. First, the second petition fails to state a cause of action. Second, it violates Supreme Court Administrative Circular No. 04-94 (Circular No. 0494) on forum shopping. Respondent Tadeo opposed the Motion to which petitioner Diana filed Additional Arguments in Support of the Motion. The trial court, through Judge Julieto P. Tabiolo, issued on 18 September 1996 an Order (first order) deferring resolution of the Motion until the parties ventilate their arguments in a hearing. Petitioner Diana filed a motion for reconsideration. However, the trial court, through Pairing Judge Rosalina L. Luna Pison, issued on 21 January 1997 an Order (second order) denying the motion. In denying the motion for reconsideration, Judge Pison explained that when the ground for dismissal is the complaints failure to state a cause of action, the trial court determines such fact solely from the petition itself. Judge Pison held that contrary to petitioner Dianas claim, a perusal of the allegations in the petition shows that petitioner Diana has violated

respondent Tadeos right, thus giving rise to a cause of action. Judge Pison also rejected petitioner Dianas claim that respondent Tadeo is guilty of forum shopping in filing the second petition. Judge Pison explained that when respondent Tadeo filed the second petition, the first petition (Civil Case No. Q95-23445) was no longer pending as it had been earlier dismissed without prejudice. Petitioner Diana filed a Petition for Certiorari, Prohibition and Mandamus before the Court of Appeals assailing the trial courts first order deferring action on the Motion and the second order denying the motion for reconsideration on 14 February 1997. The Court of Appeals dismissed the petition and denied the motion for reconsideration. Hence, this petition. Ruling of the Court of Appeals The Court of Appeals agreed with petitioner Diana that the trial court in its first order erred in deferring action on the Motion until after a hearing on whether the complaint states a cause of action. Nevertheless, the Court of Appeals pointed out that the trial courts second order corrected the situation since in denying the motion for reconsideration, the trial court in effect denied the Motion. The appellate court agreed with the trial court that the allegations in the second petition state a cause of action sufficient to sustain a valid judgment if proven to be true. The Court of Appeals also held that there was no violation of Circular No. 04-94. To determine the existence of forum shopping, the elements of litis pendentia must exist or a final judgment in one case must amount to res judicata in the other. In this case, there is no litis pendentia because respondent Tadeo had caused the dismissal without prejudice of the first petition before filing the second petition. Neither is there res judicata because there is no final decision on the merits. Issues In her Memorandum, petitioner Diana raises the following issues:

I.

WHETHER THE ALLEGATIONS OF THE SECOND PETITION FOR ANNULMENT OF MARRIAGE SUFFICIENTLY STATE A CAUSE OF ACTION; WHETHER RESPONDENT TADEO VIOLATED SUPREME COURT ADMINISTRATIVE CIRCULAR NO. 04-94 IN FAILING TO STATE THE FILING OF A PREVIOUS PETITION FOR ANNULMENT OF MARRIAGE, ITS TERMINATION AND STATUS.
[4]

II.

The Courts Ruling The petition has no merit. Sufficiency of Cause of Action Petitioner Dianas contention that the second petition fails to state a cause of action is untenable. A cause of action is an act or omission of the defendant in violation of the legal right of the plaintiff. A complaint states a cause of action when it contains three essential elements: (1) a right in favor of the plaintiff by whatever means and under whatever law it arises; (2) an obligation of the defendant to respect such right; and (3) the act or omission of the defendant violates the right of the plaintiff.
[5] [6]

We find the second petition sufficiently alleges a cause of action. The petition sought the declaration of nullity of the marriage based on Article 36 of the Family Code. The petition alleged that respondent Tadeo and petitioner Diana were legally married at the Holy Cross Parish after a whirlwind courtship as shown by the marriage contract attached to the petition. The couple established their residence in Quezon City. The union begot five children, Ana Maria, born on 8 November 1964; Isabel, born on 28 October 1968; Ernesto Tadeo, born on 31 March 1970; Regina Rachelle born on 7 March 1974; and Cristina Maria born in February 1978. The petition further alleged that petitioner Diana was psychologically incapacitated at the time of the celebration of their marriage to comply with the essential obligations of marriage and such incapacity subsists up to the present time. The petition alleged the non-complied marital obligations in this manner:
[7]

xxx

5. During their marriage, they had frequent quarrels due to their varied upbringing. Respondent, coming from a rich family, was a disorganized housekeeper and was frequently out of the house. She would go to her sisters house or would play tennis the whole day. 6. When the family had crisis due to several miscarriages suffered by respondent and the sickness of a child, respondent withdrew to herself and eventually refused to speak to her husband. 7. On November 1977, the respondent, who was five months pregnant with Cristina Maria and on the pretext of re-evaluating her feelings with petitioner, requested the latter to temporarily leave their conjugal dwelling. She further insisted that she wanted to feel a little freedom from petitioners marital authority and influences. The petitioner argued that he could occupy another room in their conjugal dwelling to accommodate respondents desire, but no amount of plea and explanation could dissuade her from demanding that the petitioner leave their conjugal dwelling. 8. In his desire to keep peace in the family and to safeguard the respondents pregnancy, the petitioner was compelled to leave their conjugal dwelling and reside in a condominium located in Greenhills. 9. This separation resulted in complete estrangement between the petitioner and the respondent. The petitioner waived his right to the conjugal dwelling in respondents favor through an extrajudicial dissolution of their conjugal partnership of gains. The separation in fact between the petitioner and the respondent still subsists to the present time. 10. The parties likewise agreed on the custody and support of the children. The extrajudicial dissolution of conjugal partnership of gains is hereto attached as Annex C and taken as an integral part hereof. 11. The respondent at the time of the celebration of their marriage was psychologically incapacitated to comply with the essential obligation of marriage and such incapacity subsisted up to and until the present time. Such incapacity was conclusively found in the psychological examination conducted on the relationship between the petitioner and the respondent. 12. Under Article 36 of the Family Code, the marriage between the petitioner and the respondent is void ab initio and needs to be annulled. This petition is in accordance with Article 39 thereof. xxx.
[8]

The second petition states the ultimate facts on which respondent bases his claim in accordance with Section 1, Rule 8 of the old Rules of Court. Ultimate facts refer to the principal, determinative, constitutive facts upon the existence of which the cause of action rests. The term does not refer to details of probative matter or particulars of evidence which establish the material elements.
[9] [10]

Petitioner Diana relies mainly on the rulings in Santos v. Court of Appeals as well as in Republic v. Court of Appeals and Molina. Santos gave life to the phrase psychological incapacity, a novel provision in the Family Code, by defining the term in this wise:
[11] [12] [13]

xxx psychological incapacity should refer to no less than mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of psychological incapacity to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. This psychologic condition must exist at the time the marriage is celebrated. xxx. Molina additionally provided procedural guidelines to assist the courts and the parties in cases for annulment of marriages grounded on psychological incapacity.
[14]

Petitioner Diana argues that the second petition falls short of the guidelines set forth in Santos and Molina. Specifically, she contends that the second petition is defective because it fails to allege the root cause of the alleged psychological incapacity. The second petition also fails to state that the alleged psychological incapacity existed from the celebration of the marriage and that it is permanent or incurable. Further, the second petition is devoid of any reference of the grave nature of the illness to bring about the disability of the petitioner to assume the essential obligations of marriage. Lastly, the second petition did not even state the marital obligations which petitioner Diana allegedly failed to comply due to psychological incapacity. Subsequent to Santos and Molina, the Court adopted the new Rules on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (new Rules). Specifically, Section 2, paragraph (d) of the new Rules provides:
[15]

SEC. 2. Petition for declaration of absolute nullity of void marriages x x x. (d) What to allege. A petition under Article 36 of the Family Code shall specifically allege the complete facts showing that either or both parties were psychologically incapacitated from complying with the essential marital obligations of marriage at the time of the celebration of marriage even if such incapacity becomes manifest only after its celebration. The complete facts should allege the physical manifestations, if any, as are indicative of psychological incapacity at the time of the celebration of the marriage but expert opinion need not be alleged. (Emphasis supplied) Procedural rules apply to actions pending and unresolved at the time of their passage. The obvious effect of the new Rules providing that expert opinion need not be alleged in the petition is that there is also no need to allege the root cause of the psychological incapacity. Only experts in the fields of neurological and behavioral sciences are competent to determine the root cause of psychological incapacity. Since the new Rules do not require the petition to allege expert opinion on the psychological incapacity, it follows that there is also no need to allege in the petition the root cause of the psychological incapacity.
[16]

Science continues to explore, examine and explain how our brains work, respond to and control the human body. Scientists still do not understand everything there is to know about the root causes of psychological disorders. The root causes of many psychological disorders are still unknown to science even as their outward, physical manifestations are evident. Hence, what the new Rules require the petition to allege are the physical manifestations indicative of psychological incapacity. Respondent Tadeos second petition complies with this requirement. The second petition states a cause of action since it states the legal right of respondent Tadeo, the correlative obligation of petitioner Diana, and the act or omission of petitioner Diana in violation of the legal right. In Dulay v. Court of Appeals, the Court held:
[17]

In determining whether the allegations of a complaint are sufficient to support a cause of action, it must be borne in mind that the complaint does not have to establish or allege the facts proving the existence of a cause of action at the outset; this will have to be done at the trial on the merits of the case (Del Bros Hotel Corporation v. CA, supra). If the allegations in a complaint can furnish a sufficient basis by which the

complaint can be maintained, the same should not be dismissed regardless of the defenses that may be assessed by the defendants (Rava Devt Corp. v. CA, 211 SCRA 152 [1992] citing Consolidated Bank & Trust Corporation v. Court of Appeals, 197 SCRA 663 [1991]). To sustain a motion to dismiss for lack of cause of action, the complaint must show that the claim for relief does not exist rather than that a claim has been defectively stated or is ambiguous, indefinite or uncertain (Azur v. Provincial Board, 27 SCRA 50 [1969]). xxx. (Emphasis supplied) A defendant moving to dismiss a complaint on the ground of lack of cause of action hypothetically admits all the factual averments in the complaint. Given the hypothetically admitted facts in the second petition, the trial court could render judgment over the case.
[18]

Forum Shopping Similarly untenable is petitioner Dianas contention that the second petitions certificate of non-forum shopping which does not mention the filing of the first petition and its dismissal without prejudice violates Circular No. 0494. Petitioner Diana refers to this portion of Circular No. 04-94[19]

1. The plaintiff, petitioner, applicant or principal party seeking relief in the complaint, petition, application or other initiatory pleading shall certify under oath in such original pleading, or in a sworn certification annexed thereto and simultaneously filed therewith, to the truth of the following facts and undertakings: (a) he has not theretofore commenced any other action or proceeding involving the same issues in the Supreme court, the Court of Appeals, or any other tribunal or agency ; (b) to the best of his knowledge, no action or proceeding is pending in the Supreme Court, the Court of Appeals, or any other tribunal or agency; (c) if there is any such action or proceeding which is either pending or may have been terminated, he must state the status thereof; and (d) if he should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or any other tribunal or agency, he undertakes to report that fact within five (5) days therefrom to the court or agency wherein the original pleading and sworn certification contemplated herein have been filed.
[20]

Petitioner Diana points out that respondent Tadeo did not disclose in his certificate of non-forum shopping that he had previously commenced a similar action based on the same grounds with the same prayer for relief. The certificate of non-forum shopping should have stated the fact of termination of the first petition or its status.

The Court has consistently held that a certificate of non-forum shopping not attached to the petition or one belatedly filed or one signed by counsel and not the party himself constitutes a violation of the requirement. Such violation can result in the dismissal of the complaint or petition. However, the Court has also previously held that the rule of substantial compliance applies to the contents of the certification.
[21]

In Roxas v. Court of Appeals, the Court squarely addressed the issue of whether the omission of a statement on the prior filing and dismissal of a case involving the same parties and issues merits dismissal of the petition. InRoxas, the Court ruled:
[22]

xxx an omission in the certificate of non-forum shopping about any event that would not constitute res judicata and litis pendentia as in the case at bar, is not fatal as to merit the dismissal and nullification of the entire proceedings considering that the evils sought to be prevented by the said certificate are not present. It is in this light that we ruled in Maricalum Mining Corp. v. National Labor Relations Commission that a liberal interpretation of Supreme Court Circular No. 04-94 on nonforum shopping would be more in keeping with the objectives of procedural rules which is to secure a just, speedy and inexpensive disposition of every action and proceeding. The dismissal of the first petition precluded the eventuality of litis pendentia. The first petitions dismissal did not also amount to res judicata. Thus, there is no need to state in the certificate of non-forum shopping in the second petition (Civil Case No. Q-95-24471) about the prior filing and dismissal of the first petition (Civil Case No. Q-95-23445). The first petition was dismissed without prejudice at the instance of respondent Tadeo to keep the peace between him and his grown up children. The dismissal happened before service of answer or any responsive pleading. Clearly, there is no litis pendentia since respondent Tadeo had already withdrawn and caused the dismissal of the first petition when he subsequently filed the second petition. Neither is there res judicata because the dismissal order was not a decision on the merits but a dismissal without prejudice. Circular No. 04-94, now Section 5, Rule 7 of the 1997 Rules of Civil Procedure, must be interpreted and applied to achieve its purpose. The Supreme Court promulgated the Circular to promote and facilitate the orderly administration of justice. The Circular should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate objective or
[23]

the goal of all rules of procedure which is to achieve substantial justice as expeditiously as possible.
[24]

A final word. We are ever mindful of the principle that marriage is an inviolable social institution and the foundation of the family that the state cherishes and protects. In rendering this Decision, this Court is not prejudging the main issue of whether the marriage is void based on Article 36 of the Family Code. The trial court must resolve this issue after trial on the merits where each party can present evidence to prove their respective allegations and defenses. We are merely holding that, based on the allegations in the second petition, the petition sufficiently alleges a cause of action and does not violate the rule on forum shopping. Thus, the second petition is not subject to attack by a motion to dismiss on these grounds.
[25]

WHEREFORE, we DENY the petition. The assailed Decision dated 30 May 1997 as well as the Resolution dated 7 August 1997 of the Court of Appeals in CA-G.R. SP No. 43393 is AFFIRMED. Costs against petitioner. SO ORDERED. Davide, Jr., C.J., (Chairman), Vitug, and Ynares-Santiago, JJ., concur. Azcuna, J., on leave.
SECOND DIVISION G.R. NO. 158896 October 27, 2004

JUANITA CARATING-SIAYNGCO, petitioner, vs. MANUEL SIAYNGCO, respondent. DECISION CHICO-NAZARIO, J.: This is a petition for review on certiorari of the decision 1 of the Court of Appeals promulgated on 01 July 2003, reversing the decision2 of the Regional Trial Court (RTC), Branch 102, Quezon City, dated 31 January 2001, which dismissed the petition for declaration of nullity of marriage filed by respondent herein Judge Manuel Siayngco ("respondent Manuel"). Petitioner Juanita Carating-Siayngco ("Petitioner Juanita") and respondent Manuel were married at civil rites on 27 June 1973 and before the Catholic Church on 11 August 1973. After discovering that they could not have a child of their own, the couple decided to adopt a baby boy in 1977, who they named Jeremy. On 25 September 1997, or after twenty-four (24) years of married life together, respondent Manuel filed for the declaration of its nullity on the ground of psychological incapacity of petitioner Juanita.

He alleged that all throughout their marriage, his wife exhibited an over domineering and selfish attitude towards him which was exacerbated by her extremely volatile and bellicose nature; that she incessantly complained about almost everything and anyone connected with him like his elderly parents, the staff in his office and anything not of her liking like the physical arrangement, tables, chairs, wastebaskets in his office and with other trivial matters; that she showed no respect or regard at all for the prestige and high position of his office as judge of the Municipal Trial Court; that she would yell and scream at him and throw objects around the house within the hearing of their neighbors; that she cared even less about his professional advancement as she did not even give him moral support and encouragement; that her psychological incapacity arose before marriage, rooted in her deep-seated resentment and vindictiveness for what she perceived as lack of love and appreciation from her own parents since childhood and that such incapacity is permanent and incurable and, even if treatment could be attempted, it will involve time and expense beyond the emotional and physical capacity of the parties; and that he endured and suffered through his turbulent and loveless marriage to her for twenty-two (22) years. In her Answer, petitioner Juanita alleged that respondent Manuel is still living with her at their conjugal home in Malolos, Bulacan; that he invented malicious stories against her so that he could be free to marry his paramour; that she is a loving wife and mother; that it was respondent Manuel who was remiss in his marital and family obligations; that she supported respondent Manuel in all his endeavors despite his philandering; that she was raised in a real happy family and had a happy childhood contrary to what was stated in the complaint. In the pre-trial order,3 the parties only stipulated on the following: 1. That they were married on 27 June 1973; 2. That they have one son who is already 20 years old. Trial on the merits ensued thereafter. Respondent Manuel first took the witness stand and elaborated on the allegations in his petition. He testified that his parents never approved of his marriage as they still harbored hope that he would return to the seminary. 4 The early years of their marriage were difficult years as they had a hard time being accepted as husband and wife by his parents and it was at this period that his wife started exhibiting signs of being irritable and temperamental5 to him and his parents.6 She was also obsessive about cleanliness which became the common source of their quarrels.7 He, however, characterized their union as happy during that period of time in 1979 when they moved to Malolos as they were engrossed in furnishing their new house.8 In 1981, when he became busy with law school and with various community organizations, it was then that he felt that he and his wife started to drift apart. 9 He then narrated incidents during their marriage that were greatly embarrassing and/or distressing to him, e.g., when his wife quarreled with an elderly neighbor; 10 when she would visit him in his office and remark that the curtains were already dirty or when she kicked a trash can across the room or when she threw a ballpen from his table;11 when she caused his office drawer to be forcibly opened while he was away;12 when she confronted a female tenant of theirs and accused the tenant of having an affair with him;13 and other incidents reported to him which would show her jealous nature. Money matters continued to be a source of bitter quarrels.14 Respondent Manuel could not forget that he was not able to celebrate his appointment as judge in 1995 as his wife did not approve it, ostensibly for lack of money, but she was very generous when it came to celebrations of their parish priest.15 Respondent Manuel then denied that he was a womanizer 16 or that he had a mistress.17 Lastly, respondent Manuel testified as to their conjugal properties and obligations. 18 Next, LUCENA TAN, respondent Manuels Clerk of Court, testified that petitioner Juanita seldom went to respondent Manuels office.19 But when she was there, she would call witness to complain

about the curtains and the cleanliness of the office. 20 One time, witness remembered petitioner Juanita rummaging through respondent Manuels drawer looking for his address book while the latter was in Subic attending a conference. 21 When petitioner Juanita could not open a locked drawer she called witness, telling the latter that she was looking for the telephone number of respondents hotel room in Subic. A process server was requested by petitioner Juanita to call for a locksmith in the town proper. When the locksmith arrived, petitioner Juanita ordered him to open the locked drawer. On another occasion, particularly in August of 1998, witness testified that she heard petitioner Juanita remark to respondent Manuel "sino bang batang bibinyagan na yan? Baka anak mo yan sa labas?"22 As his third witness, respondent Manuel presented DR. VALENTINA GARCIA whose professional qualifications as a psychiatrist were admitted by petitioner Juanita. 23 From her psychiatric evaluation,24 Dr. Garcia concluded: To sum up, Manuel de Jesus Siayngco and Juanita Victoria Carating-Siayngco contributed to the marital collapse. There is a partner relational problem which affected their capacity to sustain the marital bond with love, support and understanding. The partner relational problem (coded V61/10 in the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders or DSM IV) is secondary to the psychopathology of both spouses. Manuel and Juanita had engaged themselves in a defective communication pattern which is characteristically negative and deformed. This affected their competence to maintain the love and respect that they should give to each other. Marriage requires a sustained level of adaptation from both partners who are expected to use healthy strategies to solve their disputes and differences. Whereas Juanita would be derogatory, critical, argumentative, depressive and obsessive-compulsive, Manuel makes use of avoidance and suppression. In his effort to satisfy the self and to boost his masculine ego to cover up for his felt or imagined inadequacies, he became callused to the detrimental effects of his unfaithfulness and his failure to prioritize the marriage. Both spouses, who display narcissistic psychological repertoire (along with their other maladaptive traits), failed to adequately empathize (or to be responsive and sensitive) to each others needs and feelings. The matrimonial plot is not conducive to a healthy and a progressive marriage. Manuel and Juanita have shown their psychologically [sic] incapacity to satisfactorily comply with the fundamental duties of marriage. The clashing of their patterns of maladaptive traits, which warrant the diagnosis of personality disorder not otherwise specified (PDNOS, with code 301.9 as per DSM IV criteria) will bring about more emotional mishaps and psychopathology. These rigid sets of traits which were in existence before the marriage will tend to be pervasive and impervious to recovery.25 In her defense, petitioner Juanita denied respondent Manuels allegations. She insisted that they were a normal couple who had their own share of fights; that they were happily married until respondent Manuel started having extra-marital affairs 26 which he had admitted to her.27 Petitioner Juanita professed that she would wish to preserve her marriage and that she truly loved her husband.28 She stated further that she has continuously supported respondent Manuel, waiting up for him while he was in law school to serve him food and drinks. Even when he already filed the present case, she would still attend to his needs.29 She remembered that after the pre-trial, while they were in the hallway, respondent Manuel implored her to give him a chance to have a new family. 30 DR. EDUARDO MAABA, whose expertise as a psychiatrist was admitted by respondent Manuel,31 testified that he conducted a psychiatric evaluation on petitioner Juanita, the results of which were embodied in his report. Said report stated in part:

Based on the clinical interviews and the results of the psychological tests, respondent Juanita Victoria Carating-Siayngco, was found to be a mature, conservative, religious and highly intelligent woman who possess [sic] more than enough psychological potentials for a mutually satisfying long term heterosexual relationship. Superego is strong and she is respectful of traditional institutions of society like the institution of marriage. She was also found to be a loving, nurturing and self-sacrificing woman who is capable of enduring severe environmental stress in her social milieu. Finally, she is reality-oriented and therefore capable of rendering fair and sound decision. In summary, the psychiatric evaluation found the respondent to be psychologically capacitated to comply with the basic and essential obligations of marriage. 32 CRISPINA SEVILLA, a friend of the spouses Siayngco since 1992 described the Siayngcos as the ideal couple, sweet to each other. 33 The couple would religiously attend prayer meetings in the community.34 Both were likewise leaders in their community.35 Witness then stated that she would often go to the house of the couple and, as late as March 2000, she still saw respondent Manuel there.36 On 31 January 2001, the trial court denied respondent Manuels petition for declaration of nullity of his marriage to petitioner Juanita holding in part that: The asserted psychological incapacity of the defendant is not preponderantly supported in evidence. The couple [was] happily married and after four years of marital bliss [was] blest with a son. Their life together continued years thereafter in peace and prosperity. The psychiatric finding that defendant has been critical, depressed and obsessive doubtless arose later in the parties relationship sometime in the early 90s when the defendant-wife started receiving letters that the plaintiff is playing footsy. xxx xxx xxx

The present state of our laws on marriage does not favor knee-jerk responses to slight stabs of the Pavlovian hammer on marital relations. A wife, as in the instant case, may have succumbed, due to her jealousy, to the constant delivery of irritating curtain lectures to her husband. But, as our laws now stand, the dissolution of the marriage is not the remedy in such cases. In contrast to some countries, our laws do not look at a marital partner as a mere refrigerator in the Kitchen even if he or she sometimes may sound like a firetruck. 37 A motion for reconsideration was filed but was denied in an order dated 04 May 2001. 38 On 01 July 2003, the Court of Appeals reversed the RTC decision, relying mainly on the psychiatric evaluation of Dr. Garcia finding both Manuel and Juanita psychologically incapacitated and on the case of Chi Ming Tsoi v. Court of Appeals.39 Thus: The report clearly explained the root cause of the alleged psychological incapacity of plaintiff Manuel and defendant Juanita. It appears that there is empathy between plaintiff and defendant. That is a shared feeling which between husband and wife must be experienced not only by having spontaneous sexual intimacy but a deep sense of spiritual communion. Marital union is a two-way process. An expressive interest in each others feelings at a time it is needed by the other can go a long way in deepening the marital relationship. Marriage is definitely not for children but for two consenting adults who view the relationship with love

"amore gignit amorem", sacrifice and a continuing commitment to compromise conscious of its value as a sublime social institution (Chi Ming Tsoi vs. Court of Appeals, 266 SCRA 324). This court, finding the gravity of the failed relationship in which the parties found themselves trapped in its mire of unfulfilled vows and unconsummated marital obligations, can do no less, but reverse and set aside the decision of the lower court. Plaintiff Manuel is entitled to have his marriage declared a nullity on the ground of psychological incapacity, not only of defendant but also of himself.40 Petitioner contends that the Court of Appeals erred I. IN ITS FINDINGS THAT PETITIONER JUANITA IS PSYCHOLOGICALLY INCAPACITATED II. IN ITS FINDINGS OF FACT THAT PETITIONER AND RESPONDENT SEPARATED ON MARCH 1997, THE TRUTH IS THAT THEY ARE STILL LIVING TOGETHER AS HUSBAND AND WIFE AT THE TIME OF THE FILING OF THE PETITION UP TO THE PRESENT III. WHEN IT DID NOT FOLLOW THE GUIDELINES LAID DOWN BY THE SUPREME COURT IN THE CASE OF REPUBLIC V. MOLINA IV. IN DECLARING THE MARRIAGE OF HEREIN PETITIONER AND RESPONDENT NULL AND VOID ON GROUND OF PSYCHOLOGICAL INCAPACITY UNDER ARTICLE 36 OF THE FAMILY CODE The Courts Ruling Our pronouncement in Republic v. Dagdag41 is apropos. There, we held that whether or not psychological incapacity exists in a given case calling for the declaration of the nullity of the marriage depends crucially on the facts of the case. Each case must be closely scrutinized and judged according to its own facts as there can be no case that is on "all fours" with another. This, the Court of Appeals did not heed. The Court of Appeals perfunctorily applied our ruling in Chi Ming Tsoi despite a clear divergence in its factual milieu with the case at bar. In Chi Ming Tsoi, the couple involved therein, despite sharing the same bed from the time of their wedding night on 22 May 1988 until their separation on 15 March 1989, never had coitus. The perplexed wife filed the petition for the declaration of the nullity of her marriage on the ground of psychological incapacity of her husband. We sustained the wife for the reason that an essential marital obligation under the Family Code is procreation such that "the senseless and protracted refusal of one of the parties to fulfill the above marital obligation is equivalent to psychological incapacity." On the other hand, sexual intimacy for procreation is a non-issue herein. Rather, we have here a case of a husband who is constantly embarrassed by his wifes outbursts and overbearing ways, who finds his wifes obsession with cleanliness and the tight reign on his wallet "irritants" and who is wounded by her lack of support and respect for his person and his position as a Judge. In our book, however, these inadequacies of petitioner Juanita which led respondent Manuel to file a case against her do not amount to psychological incapacity to comply with the essential marital obligations.

It was in Santos v. Court of Appeals42 where we declared that "psychological incapacity" under Article 36 of the Family Code is not meant to comprehend all possible cases of psychoses. It should refer, rather, to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage. Psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability.43 In Republic v. Court of Appeals44 we expounded: (1) The burden of proof to show the nullity of marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an entire Article on the Family, recognizing it "as the foundation of the nation." It decrees marriage as legally "inviolable," thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be "protected" by the state. The Family Code echoes this constitutional edict on marriage and the family and emphasizes their permanence, inviolability and solidarity. (2) The root cause of the psychological incapacity must be: a) medically or clinically identified, b) alleged in the complaint, c) sufficiently proven by experts and d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological not physical, although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or physically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle of ejusdem generis, nevertheless such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists. (3) The incapacity must be proven to be existing at the "time of the celebration" of the marriage. The evidence must show that the illness was existing when the parties exchanged their "I dos." The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto. (4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage like the exercise of a profession or employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses of children and prescribing medicine to cure them but may not be psychologically capacitated to procreate, bear and raise his/her own children as an essential obligation of marriage. (5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, "mild characteriological peculiarities, mood changes, occasional emotional outbursts" cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage.

(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision. (7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts.45 With the foregoing pronouncements as compass, we now resolve the issue of whether or not the totality of evidence presented is enough to sustain a finding of psychological incapacity against petitioner Juanita and/or respondent Manuel. A. RE: PSYCHOLOGICAL INCAPACITY OF RESPONDENT MANUEL We reiterate that the state has a high stake in the preservation of marriage rooted in its recognition of the sanctity of married life and its mission to protect and strengthen the family as a basic autonomous social institution.46 With this cardinal state policy in mind, we held in Republic v. Court of Appeals47 that the burden of proof to show the nullity of marriage belongs to the plaintiff (respondent Manuel herein). Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. In herein case, the Court of Appeals committed reversible error in holding that respondent Manuel is psychologically incapacitated. The psychological report of Dr. Garcia, which is respondent Manuels own evidence, contains candid admissions of petitioner Juanita, the person in the best position to gauge whether or not her husband fulfilled the essential marital obligations of marriage: She talked about her spouse, "My husband is kind, a good provider, cool, intelligent but a liar, masamang magalit at gastador. In spite of what he has done to me, I take care of him whenever he is sick. He is having extra marital affairs because he wants to have a child. I believe that our biggest problem is not having a child. It is his obsession to have a child with his girl now. He started his relationship with this girl in 1994. I even saw them together in the car. I think that it was the girl who encouraged him to file the petition." She feels that the problems in the relationship is [sic] "paulit-ulit," but, that she still is willing to pursue it. x x x. Overall, she feels that he is a good spouse and that he is not really psychologically incapacitated. He apparently told her, "You and Jeremy should give me a chance to have a new family." She answered and said, "Ikaw tinuruan mo akong to fight for my right. Ipaglalaban ko ang marriage natin." 48 What emerges from the psychological report of Dr. Garcia as well as from the testimonies of the parties and their witnesses is that the only essential marital obligation which respondent Manuel was not able to fulfill, if any, is the obligation of fidelity. 49 Sexual infidelity, per se, however, does not constitute psychological incapacity within the contemplation of the Family Code. 50 It must be shown that respondent Manuels unfaithfulness is a manifestation of a disordered personality which makes him completely unable to discharge the essential obligations of the marital state 51 and not merely due to his ardent wish to have a child of his own flesh and blood. In herein case, respondent Manuel has admitted that: "I had [extra-marital] affairs because I wanted to have a child at that particular point." 52 B. RE: PSYCHOLOGICAL INCAPACITY OF PETITIONER JUANITA

As aforementioned, the presumption is always in favor of the validity of marriage. Semper praesumitur pro matrimonio. In the case at bar, respondent Manuel failed to prove that his wifes lack of respect for him, her jealousies and obsession with cleanliness, her outbursts and her controlling nature (especially with respect to his salary), and her inability to endear herself to his parents are grave psychological maladies that paralyze her from complying with the essential obligations of marriage. Neither is there any showing that these "defects" were already present at the inception of the marriage or that they are incurable.53 In fact, Dr. Maaba, whose expertise as a psychiatrist was admitted by respondent Manuel, reported that petitioner was psychologically capacitated to comply with the basic and essential obligations of marriage. 54 The psychological report of respondent Manuels witness, Dr. Garcia, on the other hand, does not help his case any. Nothing in there supports the doctors conclusion that petitioner Juanita is psychologically incapacitated. On the contrary, the report clearly shows that the root cause of petitioner Juanitas behavior is traceable not from the inception of their marriage as required by law but from her experiences during the marriage, e.g., her in-laws disapproval of her as they wanted their son to enter the priesthood,55 her husbands philandering, admitted no less by him, 56 and her inability to conceive.57 Dr. Garcias report paints a story of a husband and wife who grew professionally during the marriage, who pursued their individual dreams to the hilt, becoming busier and busier, ultimately sacrificing intimacy and togetherness as a couple. This was confirmed by respondent Manuel himself during his direct examination. 58 Thus, from the totality of the evidence adduced by both parties, we have been allowed a window into the Siayngcoss life and have perceived therefrom a simple case of a married couple drifting apart, becoming strangers to each other, with the husband consequently falling out of love and wanting a way out. An unsatisfactory marriage, however, is not a null and void marriage. Mere showing of "irreconcilable differences" and "conflicting personalities" in no wise constitutes psychological incapacity. 59 As we stated in Marcos v. Marcos:60 Article 36 of the Family Code, we stress, is not to be confused with a divorce law that cuts the marital bond at the time the causes therefore manifests themselves. It refers to a serious psychological illness afflicting a party even before the celebration of the marriage. It is a malady so grave and so permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is about to assume. We are not downplaying the frustration and misery respondent Manuel might be experiencing in being shackled, so to speak, to a marriage that is no longer working. Regrettably, there are situations like this one, where neither law nor society can provide the specific answers to every individual problem.61 WHEREFORE, the petition for review is hereby GRANTED. The Decision dated 01 July 2003 of the Court of Appeals is hereby REVERSED and SET ASIDE. The Decision dated 31 January 2001 of the Regional Trial Court of Quezon City, Branch 102 is reinstated and given full force and effect. No costs. SO ORDERED. Puno, Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur. FIRST DIVISION

G.R. No. 162368

July 17, 2006

MA. ARMIDA PEREZ-FERRARIS, petitioner, vs. BRIX FERRARIS, respondent. RESOLUTION YNARES-SANTIAGO, J.: This resolves the motion for reconsideration filed by petitioner Ma. Armida Perez-Ferraris of the Resolution dated June 9, 2004 denying the petition for review on certiorari of the Decision and Resolution of the Court of Appeals dated April 30, 2003 and February 24, 2004, respectively, for failure of the petitioner to sufficiently show that the Court of Appeals committed any reversible error. On February 20, 2001, the Regional Trial Court of Pasig City, Branch 151 rendered a Decision1 denying the petition for declaration of nullity of petitioner's marriage with Brix Ferraris. The trial court noted that suffering from epilepsy does not amount to psychological incapacity under Article 36 of the Civil Code and the evidence on record were insufficient to prove infidelity. Petitioner's motion for reconsideration was denied in an Order 2 dated April 20, 2001 where the trial court reiterated that there was no evidence that respondent is mentally or physically ill to such an extent that he could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Petitioner appealed to the Court of Appeals which affirmed 3 in toto the judgment of the trial court. It held that the evidence on record did not convincingly establish that respondent was suffering from psychological incapacity or that his "defects" were incurable and already present at the inception of the marriage.4 The Court of Appeals also found that Dr. Dayan's testimony failed to establish the substance of respondent's psychological incapacity; that she failed to explain how she arrived at the conclusion that the respondent has a mixed personality disorder; that she failed to clearly demonstrate that there was a natal or supervening disabling factor or an adverse integral element in respondent's character that effectively incapacitated him from accepting and complying with the essential marital obligations.5 Petitioner's motion for reconsideration was denied 6 for lack of merit; thus, she filed a petition for review on certiorari with this Court. As already stated, the petition for review was denied for failure of petitioner to show that the appellate tribunal committed any reversible error. Petitioner filed the instant motion for reconsideration. 7 The Court required respondent Brix Ferraris to file comment8 but failed to comply; thus, he is deemed to have waived the opportunity to file comment. Further, the Court directed the Office of the Solicitor General (OSG) to comment on petitioner's motion for reconsideration which it complied on March 2, 2006. After considering the arguments of both the petitioner and the OSG, the Court resolves to deny petitioner's motion for reconsideration. The issue of whether or not psychological incapacity exists in a given case calling for annulment of marriage depends crucially, more than in any field of the law, on the facts of the case. 9 Such factual issue, however, is beyond the province of this Court to review. It is not the function of the Court to analyze or weigh all over again the evidence or premises supportive of such factual determination.10 It is a well-established principle that factual findings of the trial court, when affirmed

by the Court of Appeals, are binding on this Court, 11 save for the most compelling and cogent reasons, like when the findings of the appellate court go beyond the issues of the case, run contrary to the admissions of the parties to the case, or fail to notice certain relevant facts which, if properly considered, will justify a different conclusion; or when there is a misappreciation of facts, 12 which are unavailing in the instant case. The term "psychological incapacity" to be a ground for the nullity of marriage under Article 36 of the Family Code, refers to a serious psychological illness afflicting a party even before the celebration of the marriage. It is a malady so grave and so permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is about to assume. 13 As all people may have certain quirks and idiosyncrasies, or isolated characteristics associated with certain personality disorders, there is hardly any doubt that the intendment of the law has been to confine the meaning of "psychological incapacity" to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. 14 It is for this reason that the Court relies heavily on psychological experts for its understanding of the human personality. However, the root cause must be identified as a psychological illness and its incapacitating nature must be fully explained,15 which petitioner failed to convincingly demonstrate. As aptly held by the Court of Appeals: Simply put, the chief and basic consideration in the resolution of marital annulment cases is the presence of evidence that can adequately establish respondent's psychological condition. Here, appellant contends that there is such evidence. We do not agree. Indeed, the evidence on record did not convincingly establish that respondent was suffering from psychological incapacity. There is absolutely no showing that his "defects" were already present at the inception of the marriage, or that those are incurable. Quite apart from being plainly self-serving, petitioner's evidence showed that respondent's alleged failure to perform his so-called marital obligations was not at all a manifestation of some deep-seated, grave, permanent and incurable psychological malady. To be sure, the couple's relationship before the marriage and even during their brief union (for well about a year or so) was not all bad. During that relatively short period of time, petitioner was happy and contented with her life in the company of respondent. In fact, by petitioner's own reckoning, respondent was a responsible and loving husband. x x x. Their problems began when petitioner started doubting respondent's fidelity. It was only when they started fighting about the calls from women that respondent began to withdraw into his shell and corner, and failed to perform his so-called marital obligations. Respondent could not understand petitioner's lack of trust in him and her constant naggings. He thought her suspicions irrational. Respondent could not relate to her anger, temper and jealousy. x x x. xxxx At any rate, Dr. Dayan did not explain how she arrived at her diagnosis that respondent has a mixed personality disorder called "schizoid," and why he is the "dependent and avoidant type." In fact, Dr. Dayan's statement that one suffering from such mixed personality disorder is dependent on others for decision x x x lacks specificity; it seems to belong to the realm of theoretical speculation. Also, Dr. Dayan's information that respondent had extramarital affairs was supplied by the petitioner herself. Notably, when asked as to the root cause of respondent's alleged psychological incapacity, Dr. Dayan's answer was vague, evasive and inconclusive. She replied that such disorder "can be part of his family upbringing" x x x. She stated that there was a history of respondent's parents having difficulties in their relationship. But this input on the supposed problematic history of respondent's parents also came from

petitioner. Nor did Dr. Dayan clearly demonstrate that there was really "a natal or supervening disabling factor" on the part of respondent, or an "adverse integral element" in respondent's character that effectively incapacitated him from accepting, and, thereby complying with, the essential marital obligations. Of course, petitioner likewise failed to prove that respondent's supposed psychological or mental malady existed even before the marriage. All these omissions must be held up against petitioner, for the reason that upon her devolved the onus of establishing nullity of the marriage. Indeed, any doubt should be resolved in favor of the validity of the marriage and the indissolubility of the marital vinculum.16 We find respondent's alleged mixed personality disorder, the "leaving-the-house" attitude whenever they quarreled, the violent tendencies during epileptic attacks, the sexual infidelity, the abandonment and lack of support, and his preference to spend more time with his band mates than his family, are not rooted on some debilitating psychological condition but a mere refusal or unwillingness to assume the essential obligations of marriage. In Republic v. Court of Appeals,17 where therein respondent preferred to spend more time with his friends than his family on whom he squandered his money, depended on his parents for aid and assistance, and was dishonest to his wife regarding his finances, the Court held that the psychological defects spoken of were more of a "difficulty," if not outright "refusal" or "neglect" in the performance of some marital obligations and that a mere showing of irreconcilable differences and conflicting personalities in no wise constitute psychological incapacity; it is not enough to prove that the parties failed to meet their responsibilities and duties as married persons; it is essential that they must be shown to be incapable of doing so, due to some psychological, not physical, illness. Also, we held in Hernandez v. Court of Appeals18 that habitual alcoholism, sexual infidelity or perversion, and abandonment do not by themselves constitute grounds for declaring a marriage void based on psychological incapacity. While petitioner's marriage with the respondent failed and appears to be without hope of reconciliation, the remedy however is not always to have it declared void ab initio on the ground of psychological incapacity. An unsatisfactory marriage, however, is not a null and void marriage. 19 No less than the Constitution recognizes the sanctity of marriage and the unity of the family; it decrees marriage as legally "inviolable" and protects it from dissolution at the whim of the parties. Both the family and marriage are to be "protected" by the state.20 Thus, in determining the import of "psychological incapacity" under Article 36, it must be read in conjunction with, although to be taken as distinct from Articles 35, 21 37,22 38,23 and 4124 that would likewise, but for different reasons, render the marriage void ab initio, or Article 4525 that would make the marriage merely voidable, or Article 55 that could justify a petition for legal separation. Care must be observed so that these various circumstances are not applied so indiscriminately as if the law were indifferent on the matter. 26 Article 36 should not to be confused with a divorce law that cuts the marital bond at the time the causes therefor manifest themselves. 27 Neither it is to be equated with legal separation, in which the grounds need not be rooted in psychological incapacity but on physical violence, moral pressure, moral corruption, civil interdiction, drug addiction, habitual alcoholism, sexual infidelity, abandonment and the like.28 WHEREFORE, in view of the foregoing, the motion for reconsideration of the Resolution dated June 9, 2004 denying the petition for review on certiorari for failure of the petitioner to sufficiently show that the Court of Appeals committed any reversible error, is DENIED WITH FINALITY. SO ORDERED.

Panganiban, C.J., Austria-Martinez, Callejo, Sr., Chico-Nazario, J.J., concur. FIRST DIVISION G.R. No. 141917 February 7, 2007

BERNARDINO S. ZAMORA, Petitioner, vs. COURT OF APPEALS and NORMA MERCADO ZAMORA, Respondents. DECISION AZCUNA, J.: This is an appeal by certiorari under Rule 45 of the Rules of Court to annul and set aside the Decision and Resolution of the Court of Appeals (CA) dated August 5, 1999 and January 24, 2000 in CA-G.R. CV No. 53525, entitled "Bernardino S. Zamora v. Norma Mercado Zamora," which affirmed the dismissal of a complaint for declaration of nullity of marriage. The facts1 are: Petitioner and private respondent were married on June 4, 1970 in Cebu City. After their marriage, they lived together at No. 50-A Gorordo Avenue, Cebu City. The union did not produce any child. In 1972, private respondent left for the United States to work as a nurse. She returned to the Philippines for a few months, then left again in 1974. Thereafter, she made periodic visits to Cebu City until 1989, when she was already a U.S. citizen. Petitioner filed a complaint for declaration of nullity of marriage anchored on the alleged "psychological incapacity" of private respondent, as provided for under Article 36 of the Family Code. To support his position, he alleged that his wife was "horrified" by the mere thought of having children as evidenced by the fact that she had not borne petitioner a child. Furthermore, he also alleged that private respondent abandoned him by living in the United States and had in fact become an American citizen; and that throughout their marriage they lived together for not more than three years. On the other hand, private respondent denied that she refused to have a child. She portrayed herself as one who loves children as she is a nurse by profession and that she would from time to time borrow her husbands niece and nephews to care for them. She also faulted her husband for the breakup of their marriage, alleging that he had been unfaithful to her. He allegedly had two affairs with different women, and he begot at least three children with them. On June 22, 1995, the trial court rendered its decision thus: ... Plaintiff consented to defendants trip to the United States in 1974. She [defendant] wanted to earn money there because she wanted to help her husband build a big house at the Beverly Hills, Cebu City. Defendants testimony was corroborated by Paulina Martinez, a former househelp of the Zamoras.She always wanted to live in the Philippines before her husband committed infidelity.

One reason why defendant seldom saw her husband while she was in the Philippines was because of the infidelity committed by her husband. No less than plaintiff himself admitted that he has a child with a certain [x x x]. The court is also convinced that he has two children with a certain [y y y]. The infidelity on the part of the plaintiff was one of the contributing factors which led to the estranged relationship between him and defendant. [N]othing in the evidence of plaintiff show[s] that the defendant suffered from any psychological incapacity or that she failed to comply with her essential marital obligations. There is no evidence of psychological incapacity on the part of defendant so that she could not carry out the ordinary duties required in married life. Neither has it been shown that there was an incurable defect on the part of defendant. ... WHEREFORE, in view of the foregoing, judgment is hereby rendered DISMISSING the complaint. Without special pronouncement as to cost. SO ORDERED.2 Petitioner appealed to the CA which rendered a Decision on August 5, 1999 affirming the ruling of the trial court. The pertinent portions of the CA decision read: Without delving further into both parties allegations, we must deny this appeal. In the case of Leouel Santos v. Court of Appeals,3the High Court ruled that, "psychological incapacity should refer to no less than a mental (not physical) incapacity x x x and that there is hardly any doubt that the intendment of the law has been to confine the meaning of psychological incapacity to the most serious cases of personality or inability to give meaning and significance to the marriage." Also, in Republic v. Court of Appeals and Molina, 4 it was held that "mere showing of irreconcilable differences and conflicting personalities in no wise constitutes psychological incapacity. It is not enough to prove that the parties failed to meet their responsibilities and duties as married persons; it is essential that they must be shown to be incapable of doing so, due to some psychological (not physical) illness." This appeal does not fall in the category of psychological incapacity as defined in the aforementioned cases. The mere refusal of the appellee to bear a child is not equivalent to psychological incapacity, since even if such allegation is true, it is not shown or proven that this is due to psychological illness. As correctly stated by the appellee in her brief, the appellant even failed to present any psychologist or other medical expert to prove the psychological incapacity of defendant-appellee. This WE feel is a fatal omission on the part of the appellant, considering the doctrine laid down in the Santos and Molina cases (supra).

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court, Branch 13 of Cebu City is hereby AFFIRMED. Appeal DISMISSED. SO ORDERED.5 Petitioner filed a motion for reconsideration but the same was denied by the CA in its Resolution dated January 24, 2000. Hence, this petition raising the following issues: 1) Whether or not the Court of Appeals misapplied facts of weight and substance affecting the result of the present case; 2) Whether or not Article 68 of the Family Code is applicable to this case; 3) Whether or not the presentation of psychologists and/or psychiatrists is still desirable, if evidence in this case already shows the psychological incapacity of private respondent; 4) Whether or not the presentation of psychologists and/or psychiatrists is still desirable, considering that the private respondent is a resident of the United States and living far away from the Philippines for more than twenty (20) years: 5) Whether or not private respondents refusal to live with petitioner under one roof for more than twenty (20) years, her refusal to bear children with petitioner, and her living a solitary life in the United States for almost three (3) decades are enough indications of psychological incapacity to comply with essential marital obligations under Article 36 of the Family Code. 6 Briefly, the issue is whether there can be a declaration of nullity of the marriage between petitioner and private respondent on the ground of psychological incapacity. Petitioner argues as follows: First, there is nothing in Santos v. CA,7 upon which private respondent relies, that requires as a conditio sine qua non the presentation of expert opinion of psychologists and psychiatrists in every petition filed under Article 36 of the Family Code. This Court merely said in that case that "[t]he wellconsidered opinions of psychiatrists, psychologists, and persons with expertise in psychological disciplines might be helpful or even desirable." However, no expert opinion is helpful or even desirable to determine whether private respondent has been living abroad and away from her husband for many years; whether she has a child; and whether she has made her residence abroad permanent by acquiring U.S. citizenship; and Second, Article 36 of the Family Code provides that a marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. Among the essential marital obligations embraced by Articles 68 to 71 of the same Code is to procreate children through sexual cooperation which is the basic end of marriage. To live together under one roof for togetherness spells the unity in marriage. The marriage had been existing for twenty four years when private respondent filed a legal separation case against petitioner. Throughout this period, private respondent deliberately and obstinately refused to comply with the essential marital obligation to live and cohabit with her husband.

This Court rules as follows: It is true, as petitioner noted, that the case of Santos v. CA8 did not specifically mention that the presentation of expert opinion is a vital and mandatory requirement in filing a petition for the declaration of nullity of marriage grounded on psychological incapacity referred to under Article 36 of the Family Code. Even in the subsequent case of Republic v. Court of Appeals 9 (also known as the Molina case10 ), wherein the Court laid down the guidelines 11 in the interpretation and application of the aforementioned article, examination of the person by a physician in order for the former to be declared psychologically incapacitated was likewise not considered a requirement. 12 What is important, however, as stated in Marcos v. Marcos,13 is the presence of evidence that can adequately establish the partys psychological condition. If the totality of evidence presented is enough to sustain a finding of psychological incapacity, then actual medical examination of the person concerned need not be resorted to. Likewise, Section 2(d) of A.M. No. 02-11-10-SC or the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, which took effect on March 15, 2003, states:

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(d) What to allege. A petition under Article 36 of the Family Code shall specifically allege the complete facts showing that either or both parties were psychologically incapacitated from complying with the essential marital obligations of marriage at the time of the celebration of marriage even if such incapacity becomes manifest only after its celebration. The complete facts should allege the physical manifestations, if any, as are indicative of psychological incapacity at the time of the celebration of the marriage but expert opinion need not be alleged.14 The rule is that the facts alleged in the petition and the evidence presented, considered in totality, should be sufficient to convince the court of the psychological incapacity of the party concerned. Petitioner, however, failed to substantiate his allegation that private respondent is psychologically incapacitated. His allegations relating to her refusal to cohabit with him and to bear a child was strongly disputed, as the records undeniably bear out. Furthermore, the acts and behavior of private respondent that petitioner cited occurred during the marriage, and there is no proof that the former exhibited a similar predilection even before or at the inception of the marriage. Thus, based on the foregoing, the Court finds no reason to disturb the findings and conclusions reached by the trial court and the CA. WHEREFORE, the petition is DENIED. The Decision and Resolution of the Court of Appeals dated August 5, 1999 and January 24, 2000, respectively, in CA-G.R. CV No. 53525 are AFFIRMED. No costs. SO ORDERED. ADOLFO S. AZCUNA Associate Justice SECOND DIVISION G.R. No. 168328 February 28, 2007

REPUBLIC OF THE PHILIPPINES, Petitioner, vs. LAILA TANYAG-SAN JOSE and MANOLITO SAN JOSE, Respondents. DECISION CARPIO MORALES, J.: Respondents Laila Tanyag-San Jose (Laila) and Manolito San Jose (Manolito) were married on June 12, 1988. Laila was 19 years and 4 months old, while Manolito was 20 years and 10 months old.1 The couple begot two children: Joana Marie who was born on January 3, 1989, 2 and Norman who was born on March 14, 1997.3 For nine years, the couple stayed with Manolitos parents. Manolito was jobless and was hooked to gambling and drugs. As for Laila, she sold fish at the wet market of Taguig. 4 On August 20, 1998, Laila left Manolito and transferred to her parents house. 5 On March 9, 1999, Laila filed a Petition for Declaration of Nullity of Marriage, 6 under Article 367 of the Family Code on the ground of psychological incapacity, before the Regional Trial Court (RTC) of Pasig where it was docketed as JDRC Case No. 4862. Testifying for Laila, Dr. Nedy Tayag, a clinical psychologist at the National Center for Mental Health, declared that from the psychological test and clinical interview she conducted on Laila, she found Manolito, whom she did not personally examine, to be psychologically incapacitated to perform the duties of a husband. Dr. Tayags May 28, 1999 Report on the Psychological Condition of LAILA T. SAN JOSE8 was submitted in evidence. The pertinent portions of the Report read: BACKGROUND DATA & BRIEF MARITAL HISTORY: xxxx . . . [Lailas] association with [Manolito] started with the game of basketball. As a youngster, petitioner often spent her free time seeking fun in the outdoors. She was then beginning to cast her interests on basketball games and eventually became one of the avid spectators when a minor league was staged at their place. Respondent happened to be one of the cagers who, with his hardcourt skills, greatly impressed petitioner. The latter then became a fan of respondent. Eventually acquiring the upper hand, respondent introduced himself personally to his admirers and their initial encounter with petitioner proved to be a milestone for both of their fates. Courtship followed and after a short period, they were already steadies. Savoring the momentum, petitioner and respondent decided to formally seal their union. They entered marriage on June 12, 1989 under religious ceremonies held in Taguig. After the occasion, the newlyweds then went on to lead a life of their own making. However, contrary to what was expected, their marriage turned out to be rocky right from the very start.

Claimed, respondent refused to get himself a job. Instead, he spent most of his available time with his friends drinking intoxicating substances and gambling activities. Petitioner was left without much choice but to flex her muscles and venture on several areas which could be a source of income. She tried to endure the situation with the hope that respondent would change for the better in no time. Their first child, Joana Marie, was born of January 3, 1989. Petitioner was apparently happy with the birth of their first born, thinking that her presence would make a difference in the family, particularly on the part of respondent. Years had passed but no improvement was seen on respondents behavior. He turned out to be worse instead and it was only later that petitioner discovered that he was into drugs. Said, he prefers to be with his friends rather than his own family. He seemed oblivious to the efforts rendered by petitioner just to make ends meet. She was the breadwinner of the family and whenever an argument occurred between her and respondent, she often received the brunt of her husbands irrationality. On one of such incidents, she decided to separate from respondent. The latter however pursued her and pleaded for another chance. He promised that he would change his behavior if only petitioner would give him a son. Seeing his sincerity and unwilling to give up the marriage, petitioner agreed to the compromise. They reconciled and she did gave birth to a son, Norman, on March of 1997. Respondent was happy but his show of good nature was superficial. Briefly after the birth of their second child, respondent resumed his old ways and made them even worse. Still, petitioner remained hopeful that something will turn out right in their union. However, with respondents continuing irresponsibility, she realized that all her efforts proved nonsense to him. On August 20, 1998, respondent went out of their dwelling for his usual late night stints but he never came back the following morning. They never lived together since. Respondent is MANOLITO SAN JOSE, 31 years old with last known address at 14-D Ibayo, Tipas, Taguig, Metro Manila. He is unemployed and stayed in school only to finish his secondary education. He was described to be a happy-go-lucky individual spending most of his time hanging out with friends. Considered to be a bad influence, he was into gambling, drinking sprees and prohibited drugs as well. xxxx REMARKS: Through the evaluation of test data, correlated with clinical interviews and description of their marital plight, it is the opinion of the undersigned that the disintegration of the marriage between petitioner and respondent was caused primarily by the latters psychological incapacity to perform the essential roles and obligations of a married man and a father. His behavioral pattern characterized mainly by constant irresponsibility, lack of concern for the welfare of others, self-centered orientation, absence of remorse, violent tendencies and his involvement in activities defying social and moral ethics; suits under the classification of Anti-Social Personality Disorder. Such disorder is considered to be grave and is deeply [immersed] within the system. It continues to influence the individual until the later stage of life. 9 (Emphasis and underscoring supplied)

Branch 70 of the RTC of Pasig, by Decision of July 17, 2001, citing Republic of the Philippines v. Court of Appeals10 and Leouel Santos v. CA, et al.11 denied Lailas petition in this wise: In the recent case of Republic of the Philippines vs. Court of Appeals and Roridel Olaviano Molina (268 SCRA 198), the Supreme Court, reiterated its ruling [in] the earlier case of [Leouel] Santos vs. Court of Appeals (240 SCRA 20), to the effect that "psychological incapacity should refer to no less than a mental (not physical incapacity x x x) and that there is hardly any doubt that the intendment of the law has been to confine the meaning of "psychological incapacity" to the most serious cases of personality disorder clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage and that such incapacity "must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability." Viewed in the light of the above guidelines, the present petition must necessarily be denied. Petitioners portrayal of respondent as jobless and irresponsible is not enough. As the Supreme Court said in the Molina case (supra), "(I)t is not enough to prove that the parties failed to meet their responsibilities and duties as married persons; it is essential that they must be shown to be incapable of doing so, due to some psychological (not physical) illness." Petitioners case is not in any way enhanced by the psychological evaluation and assessment done by psychologist Nedy Tayag as per her Psychological Report (Exhs. "C" to "C-1"). Although the body of the report mentions that the respondent is affected with "Anti-Social Personality Disorder", the same cannot sway this Court from its above disposition. There is no showing that [Dr.] Tayag was able to interview the respondent or any of his relatives in order to arrive at the above conclusion. Obviously, the data upon which the finding or conclusion was based is inadequate.12 (Emphasis and underscoring supplied) Lailas motion for reconsideration of the trial courts decision was, by Order of November 13, 2001,13 denied. Laila thus appealed to the Court of Appeals which docketed it as CA G.R. CV No. 73286, faulting the trial court in holding that she failed to comply with the guidelines enumerated in Molina. By Decision dated February 15, 2005,14 the appellate court, finding Manolito psychologically incapacitated after considering "the totality of the evidence," reversed the decision of the trial court and declared the marriage between him and Laila void ab initio. Thus the appellate court held: . . . We perused the records of the present case and unearthed that the totality of the evidence presented in the present case including the testimony of the petitioner, were enough to sustain a finding that Manolito San Jose is psychologically incapacitated within the contemplation of the Family Code. We believe that his (respondents) defects were already present at the inception of the marriage or that they are incurable. If being jobless (since the commencement of the marriage up to the filing of the present petition) and worse, a gambler, can hardly qualify as being mentally or physically ill what then can We describe such acts? Are these normal manners of a married man? We are not at all swayed that a union affirmed in church rites and subsequently having children, are proofs that either of the spouses is mature and responsible enough to assume marital responsibilities.
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Accordingly, We can safely conclude that said deficiency is so grave and so permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is about to assume. This Court, finding the gravity of the failed relationship in which the parties found themselves trapped in its mire of unfulfilled vows and unconsummated marital obligations, can do no less but to declare the marriage between the herein petitioner and the respondent herein dissolved. While the law

provides that the husband and the wife are obliged to live together, observe mutual love, respect and fidelity ([A]rticle 68 of the Family Code), however, what is there to preserve when the other spouse is an unwilling party to the cohesion and creation of a family as an inviolable social institution. In fine, Laila Tanyag-San Jose must be allowed to rise from the ashes and begin a new lifefreed from a marriage which, to Us, was hopeless from the beginning and where the bonding could not have been possible. xxxx While We may not have strictly adhered to the ruling in the Molina case in arriving at Our present conclusion We have reason to deviate from the same. In view of the peculiar circumstances attendant in this case, We were constrained to take exception from the Molina case. Note that the "(c) ommittee did not give any example of psychological incapacity for the fear that the giving of examples would limit the applicability of the provision under the principle of ejusdem generis. Rather, the Committee would like the judge to apply the provision on a case-to-case basis, guided by experience, the findings of experts and researchers in psychological disciplines, and by decision of Church tribunals which although not binding on the civil courts, may be given persuasive effect since the provision was taken from Canon Law." (page 37, Handbook of the Family Code of the Philippines, Sempio-Diy, 1991 reprinted). Hence, whether or not psychological incapacity exists is for Us to establish, as there is no hard and fast rule in the determination of what maybe considered indicia of psychological incapacity. To Our mind there are sufficient grounds for Us to conclude that indeed psychological incapacity exists so as to warrant declaration of the marriage void ab initio.15 (Italics and underscoring in the original; emphasis supplied) Petitioner, Republic of the Philippines, filed a Motion for Reconsideration 16 of the appellate courts decision which was denied, by Resolution dated June 2, 2005, 17 hence, its present Petition for Review,18 positing that: I IT WAS NOT PROVEN THAT MANOLITOS ALLEGED DEFECTS ARE CONSTITUTIVE OF PSYCHOLOGICAL INCAPACITY AS CONTEMPLATED UNDER ARTICLE 36 OF THE FAMILY CODE AND THAT THE SAME HAS JURIDICAL ANTECEDENCE, IS GRAVE AND INCURABLE[, AND] II THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT ADHERING TO THE RULING OF THE MOLINA CASE AND THE DOCTRINE OF STARE DECISIS. 19 Petitioner contends that Laila failed to prove that Manolito is psychologically incapacitated to perform his marital obligations as she merely relied on the report of Dr. Tayag; and granted that the psychological examination of Manolito is not a requirement for a declaration of his psychological incapacity, the totality of the evidence presented does not show Manolitos psychological incapacity. Petitioner further contends that the appellate court erred in believing that the "defects" of Manolito already existed at the inception of the marriage or are incurable; and in any event, "belief" cannot substitute for proof which the law and jurisprudence require. Petitioner finally contends that a deviation from the Molina ruling is not proper in the present case.

Laila, as petitioner, had the burden of proof to show the nullity of the marriage. Psychological incapacity, as a ground for nullity of marriage, has been succinctly expounded in the recent case ofMa. Armida Perez-Ferraris v. Brix Ferraris (Ferraris),20 thus: The term "psychological incapacity" to be a ground for the nullity of marriage under Article 36 of the Family Code, refers to a serious psychological illness afflicting a party even before the celebration of the marriage. It is a malady so grave and so permanent as to deprive one of the awareness of the duties and responsibilities of the matrimonial bond one is about to assume. As all people may have certain quirks and idiosyncrasies, or isolated characteristics associated with certain personality disorders, there is hardly any doubt that the intendment of the law has been to confine the meaning of "psychological incapacity" to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. It is for this reason that the Court relies heavily on psychological experts for its understanding of the human personality. However, the root cause must be identified as a psychological illness and its incapacitating nature must be fully explained [.] (Italics in the original; emphasis supplied) As the earlier-quoted Report of Dr. Tayag shows, her conclusion about Manolitos psychological incapacity was based on the information supplied by Laila which she found to be "factual." That Laila supplied the basis of her conclusion, Dr. Tayag confirmed at the witness stand: Q [Atty. Revilla, Jr.]: What was your conclusion, what w[ere] your findings with respect to the respondent? A [Dr. Tayag]: Base[d] on the narration made by [Laila], which I found the narration to be factual,regarding her marital relationship with the petitioner (should have been respondent), I came up with a conclusion that respondent is psychologically incapacitated. The one which I found in him is his anti-social personality disorder because of the following overt manipulations: the presence of drug, the absence of remourse [sic], the constant incapacity in terms of maintaining the marital relationship, the lack of concern to his family, his self-centeredness, lack of remourse, in addition to the womanizing, respondent which clearly connotes the defiant of moral and personality disorder, he is tantamount to a person under the level, under our diagnostic criteria labeled as anti-social personality disorder, sir. Q: So you would like to impress this Court that your findings with respect to this case were only base[d] on the information given to you by [Laila], is that correct? A: Yes, wherein I found the narration made by [Laila] to be factual, sir .21 (Emphasis supplied) Undoubtedly, the doctors conclusion is hearsay. It is "unscientific and unreliable," so this Court declared in Choa v. Choa22 where the assessment of the therein party sought to be declared psychologically incapacitated was based merely on the information communicated to the doctor by the therein respondent-spouse: . . . [T]he assessment of petitioner by Dr. Gauzon was based merely on descriptions communicated to him by respondent. The doctor never conducted any psychological examination of her. Neither did he ever claim to have done so. In fact, his Professional Opinion began with the statement "[I]f what Alfonso Choa said about his wife Leni is true, . . ." xxxx

Obviously, Dr. Gauzon had no personal knowledge of the facts he testified to, as these had merely been relayed to him by respondent. The former was working on pure suppositions and secondhand information fed to him by one side. Consequently, his testimony can be dismissed as unscientific and unreliable.23 (Emphasis and underscoring supplied) Parenthetically, Dr. Tayags Psychological Report does not even show that the alleged anti-social personality disorder of Manolito was already present at the inception of the marriage or that it is incurable. Neither does it explain the incapacitating nature of the alleged disorder nor identify its root cause. It merely states that "[s]uch disorder is considered to be grave and is deeply [immersed] within the system [and] continues to influence the individual until the later stage of life." There is of course no requirement that the person sought to be declared psychologically incapacitated should be personally examined by a physician or psychologist as a condition sine qua non to arrive at such declaration.24 If it can be proven by independent means that one is psychologically incapacitated, there is no reason why the same should not be credited. In the present case, the only proof which bears on the claim that Manolito is psychologically incapacitated is the following testimony of Laila, in answer to the clarificatory questions propounded by the trial court: Q [Court]: Now, so aside from what you said that your husband is a drug user and that he is jobless and was not able to support your family, what other reasons do you have for saying that your husband is psychologically incapacitated from performing his marital obligations? A [Laila]: He cannot give us a brighter future because he is jobless, your honor. Q: Apart from these two reasons which is for alleged use or possession of drugs and his inability to get a job and support his family you have no other basis to show for the declaration of nullity of your marriage? A: Yes, your honor.25 (Underscoring supplied) Manolitos alleged psychological incapacity is thus premised on his being jobless and a drug user, as well as his inability to support his family and his refusal or unwillingness to assume the essential obligations of marriage. Manolitos state or condition or attitude has not been shown, however, to be a malady or disorder rooted on some incapacitating or debilitating psychological condition. In Molina, where the therein respondent preferred to spend more time with his friends than with his family, this Court found the same to be more of a "difficulty" if not outright "refusal" or "neglect" in the performance of some marital obligations. In Ferraris,26 this Court held: We find respondents alleged mixed personality disorder, the "leaving-the- house" attitude whenever they quarreled, the violent tendencies during epileptic attacks, the sexual infidelity, the abandonment and lack of support, and his preference to spend more time with his band mates than his family, are not rooted on some debilitating psychological condition but a mere refusal or unwillingness to assume the essential obligations of marriage. (Underscoring supplied) Also in Ferraris, this Court held that habitual alcoholism, just like sexual infidelity or perversion and abandonment, does not by itself constitute ground for declaring a marriage void based on

psychological incapacity.27 Neither is emotional immaturity and irresponsibility.28 Or failure or refusal to meet duties and responsibilities of a married man if it is not shown to be due to some psychological (not physical) illness.29 While Molina then is not set in stone,30 the facts and circumstances attendant to this case do not warrant a deviation from it. WHEREFORE, the petition is GRANTED. The February 15, 2005 Decision and June 2, 2005 Resolution of the Court of Appeals in CA- G.R. CV No. 73286 are REVERSED AND SET ASIDE. The July 17, 2001 Decision of the Regional Trial Court of Pasig City in JDRC Case No. 4862 is REINSTATED. SO ORDERED. CONCHITA CARPIO MORALES Associate Justice SECOND DIVISION G.R. No. 162049 April 13, 2007

NARCISO S. NAVARRO, JR., Petitioner, vs. CYNTHIA CECILIO-NAVARRO, Respondent. DECISION QUISUMBING, J.: For review is the Decision1 dated January 8, 2003 of the Court of Appeals in CA-G.R. CV No. 65677, reversing the Regional Trial Courts declaration of nullity of the marriage of petitioner and respondent. Likewise assailed is the Court of Appeals Resolution dated February 4, 2004 denying reconsideration. In Civil Case No. 94-70727, filed by petitioner Narciso Navarro, Jr. with the Regional Trial Court of Manila, Branch 37, he sought the declaration of nullity of his marriage to respondent. As culled from the records, the facts of the case are as follows: Petitioner and respondent were college sweethearts. At the time they got married, both in civil and church ceremonies, they were awaiting their first child. Since petitioner was still a medical student, while respondent was a student of pharmacy, they lived with petitioners parents, on whom they were financially dependent. Eventually, their union bore four children. Petitioner alleged that respondent constantly complained that he didnt have time for her; and that she constantly quarreled with him even before marriage when he could not give her the things she wanted. He added that she was not supportive of his career. Even marriage counseling did not work. Petitioner stated that when they quarreled, she refused to have sex with him and even told him to look for other women. He filed the petition for nullification of their marriage when he found out their eldest daughter had been made pregnant by a man whom respondent hired to follow him.

Abdona T. de Castro, a marriage counselor duly accredited by the Department of Social Welfare and Development, testified that when petitioner saw her on April 6, 1994, he was distraught, harassed, and unhappy. She concluded from meetings with the petitioner that the marriage was dysfunctional, destructive, and reconciliation was out of the question since he claims he would go insane if he were to go back to his wife. Relying on the view of another expert, one Dr. Gerardo Velasco, witness de Castro opined that professionals are per seincapacitated to perform the essential obligations of marriage because they spend a lot of time in the pursuit of their profession and have very little time to spend with their family. She concluded that respondent was also psychologically incapacitated to perform the marital obligations because she knew, from the start, that her husband was going to be a doctor, yet she did not give him the support and understanding that was expected of a doctors wife. Lilia Tayco, the housemaid of petitioners parents also testified that petitioner and respondent were always quarreling because respondent was always jealous of petitioners classmates. A psychologist, Dr. Natividad Dayan, who conducted a psychiatric test on petitioner, testified that tests showed that petitioner was a perfectionist, short-tempered, critical, argumentative and irritable when people do not meet his expectations. He married Cynthia only after he got her pregnant. He had depressions and tended to escapism when beset with problems. He was vocal about his marital problems. He believed that the lack of communication, absence of quality time, inadequacy in problem-solving, and many problems caused the failure of the marriage. For her part, respondent refused to submit to the psychiatric examination asked by the petitioner, but said she would do so only when her defense requires it. She averred that she had no marital problems, not until petitioner had an illicit affair with a certain Dr. Lucila Posadas. Petitioner denied the affair. Respondent narrated that early 1984, she caught petitioner and Lucila inside the Harana Motel in Sta. Mesa where a confrontation ensued. After the incident, petitioner seldom went home until he permanently left his family sometime in 1986. Respondent claimed petitioner and Lucila continued to see each other and had gone abroad together several times. She explained that she uttered she would not make love with her husband and dared him to look for other women only out of frustration and anger upon discovery of the affair. She admitted hiring someone to spy on petitioner, but added that she still loved her husband. Cynthias friend since high school, Miraflor Respicio testified that Cynthia was a good, stable, and mature person; that she was a loving and caring mother who gave up her career to take care of her children; and that petitioner and respondent were happy during the early days of the marriage. On August 21, 1998, the trial court held that petitioner and respondent were both psychologically incapacitated to perform their marital obligations. The dispositive portion of the courts decision reads: WHEREFORE, the marriage between the parties is (sic) dated June 2, 1973 is hereby declared null and void with the following effects: 1. The Plaintiff is hereby directed to support his children with the Defendant in the amount of forty thousand pesos (P40,000.00) a month, which sum shall be payable on or before the 5th day of each month, effective September, 1998; 2. The parties are hereby disqualified from inheriting from each other by way of testate or intestate succession;

3. Either of the parties may revoke the designation of the other as beneficiary in a life insurance policy; 4. The parties children are hereby declared legitimate, and the custody of the parties minor children is hereby awarded to the Defendant with the Plaintiff exercising his right to visit them at least once a week; 5. The properties in the name of the parties consisting of a house and lot located at 15 Bronze Street, Filinvest, Quezon City are hereby deemed as their advance legitime to their children. SO ORDERED.2 Respondent appealed the case to the Court of Appeals. She averred that the trial court erred when it annulled their marriage instead of decreeing their legal separation, with the ruling that petitioner was the guilty spouse. In a Decision dated January 8, 2003, the Court of Appeals held that the constant arguments, bickerings and conflicts between the spouses did not constitute psychological incapacity. It ruled that petitioner failed to show that any psychological incapacity in either of the two parties existed at the time of the celebration of marriage. The appellate court reversed the decision of the trial court and declared that the marriage still subsists. Petitioner now comes before us raising the following as issues: (1) Are the decision and resolution of the Honorable Court of Appeals proper subject for review by the Honorable Court under Rule 45 of the 1997 Rules of Civil Procedure? (2) Is the conclusion of the Honorable Court of Appeals that the lower court (RTC) erred in finding the parties (petitioner and respondent) both psychologically incapacitated under Article 36 of The Family Code correct or not? (3) Is the conclusion of the Honorable Court of Appeals that the evidence failed to show that the parties (petitioner and respondent) were completely unable to discharge the essential obligations of marriage correct or not? and (4) Which is more in accord with existing law and settled jurisprudence, the decision of the Court of Appeals or the decision of the trial court?3 Simply stated, the issue before us is whether the marriage is void on the ground of the parties psychological incapacity. Petitioner contends that the decision of the trial court was well-founded, based on the evidence indicating that the marriage was beyond reconciliation, and allowing the marriage to subsist would only prolong the spouses agony. Respondent counters that petitioner failed to prove psychological incapacity, and that their psychological incapacities existed as early as the time of the celebration of their marriage. We shall now resolve the issue.
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Article 36 of the Family Code states:

A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. In addition, as early as 1995, in Santos v. Court of Appeals, 4 we categorically said that psychological incapacity required by Art. 36 must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability. Psychological incapacity should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage. These include the obligations to live together, observe mutual love, respect and fidelity, and render mutual help and support. 5 We likewise have repeatedly reminded that the intention of the law is to confine the meaning of "psychological incapacity" to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. 6 In Republic v. Court of Appeals,7 the Court gave the guidelines in the interpretation and application of Art. 36 which are as follows: (1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity... (2) The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision... (3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage. (4) Such incapacity must also be shown to be medically or clinically permanent or incurable... (5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage... (6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision. (7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts... (8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition... 8 In the present case, the spouses frequent squabbles and respondents refusal to sleep with petitioner and be supportive to him do not constitute psychological incapacity. The records show that

petitioner and respondent were living in harmony in the first few years of their marriage, which bore them four children. Psychological incapacity must be more than just a "difficulty," "refusal" or "neglect" in the performance of some marital obligations, 9 it is essential that they must be shown to be incapable of doing so, due to some psychological illness 10 existing at the time of the celebration of the marriage. It will be noted that respondent did not undergo psychological tests. Witness de Castros diagnosis was based solely on petitioners avowals and not on personal knowledge of the spouses relationship. Hence, de Castros diagnosis is based on hearsay and has no probative value. 11 Further, de Castros statement that professionals are per se incapacitated to perform the essential obligations of marriage because their profession allows them little time for family life is highly debatable. Lastly, petitioner failed to show that grave and incurable incapacity, on the part of both spouses, existed at the time of the celebration of the marriage. Their bickerings and arguments even before their marriage and respondents scandalous outbursts in public, at most, show their immaturity, and immaturity does not constitute psychological incapacity. 12 Thus so far, both petitioner and respondent have not shown proof of a natal or supervening disabling factor, an adverse integral element in their personality structure that effectively incapacitates them from accepting and complying with the obligations essential to marriage. 13 WHEREFORE, the petition is DENIED for lack of merit. The Decision dated January 8, 2003 and the Resolution dated February 4, 2004 of the Court of Appeals in CA-GR CV No. 65677 are hereby AFFIRMED. No pronouncement as to costs. SO ORDERED. LEONARDO A. QUISUMBING Associate Justice THIRD DIVISION G.R. No. 157610 October 19, 2007

ORLANDO G. TONGOL, Petitioner, vs. FILIPINAS M. TONGOL, Respondent. DECISION AUSTRIA-MARTINEZ, J.: Assailed in the present Petition for Review on Certiorari under Rule 45 of the Rules of Court is the Decision1 of the Court of Appeals (CA) dated September 25, 2002 in CA-G.R. CV No. 66245, and its Resolution of March 19, 2003, denying petitioner's motion for reconsideration. The CA Decision affirmed, in toto, the Decision of the Regional Trial Court (RTC) of Makati City, Branch 149, which dismissed the petition for declaration of nullity of marriage filed by herein petitioner Orlando Tongol.

The facts of the case are as follows: Orlando G. Tongol (Orlando) and Filipinas M. Tongol (Filipinas) were married on August 27, 1967. Out of their union, they begot four children, namely: Crisanto, born in 1968; Olivia, born in 1969; Frederick, born in 1971, and; Ma. Cecilia, born in 1972. On May 13, 1994, Orlando and Filipinas filed a petition for dissolution of their conjugal partnership of gains, which was granted in a Judgment issued by the RTC of Makati City, Branch 143 on April 24, 1995. On August 19, 1996, Orlando filed before the RTC of Makati City a verified petition for the declaration of nullity of his marriage with Filipinas on the ground that the latter is psychologically incapacitated to comply with her essential marital obligations. In his Petition, Orlando contended that he and Filipinas got married over the objection of the latter's family; their marriage was not a happy one because of her parents' continued interference and attempt to break up their union; greatly influenced by her parents, Filipinas, even at the early stages of their marriage, already treated Orlando with contempt and without the love and respect due him as her husband; when Orlando started a junk shop business, Filipinas ridiculed him instead of giving him encouragement; later on, his business became successful and he was able to embark upon another business venture; he put up a pharmaceutical company which also became profitable; Filipinas then became interested and began to interfere in the operation of the business; however, because of her bad attitude, the employees were aloof; she also resented the fact that her husband got along well with the employees; as a result, she quarreled with her husband causing the latter embarrassment; she even suspected that the income of the business was being given to her husband's relatives; their continued fighting persisted and affected their children; efforts at reconciliation proved futile because their differences had become irreconcilable and their marriage impossible; in 1990, Orlando decided to live separately from Filipinas; in 1994, the spouses filed a petition for dissolution of their property relationship; and the petition was granted in 1995. In her Answer with Counter-Petition, Filipinas admitted that efforts at reconciliation have been fruitless and that their marriage is a failure. However, she claims that their marriage failed because it is Orlando who is psychologically incapacitated to fulfill his obligations as a married man. Evidence for Orlando consisted of his own testimony, that of his sister, Angelina Tongol, and of Annaliza Guevara, an employee in the pharmaceutical company owned by the spouses Tongol. Orlando also presented Dr. Cecilia Villegas, a psychiatrist who conducted a psychological examination of both parties. Orlando submitted documents evidencing their marriage, the birth of their four children, the RTC decision granting the petition for dissolution of their conjugal partnership of gains, and the written evaluation of Dr. Villegas regarding the spouses' psychological examination. On the other hand, record shows that evidence for Filipinas only consisted of her own testimony. On June 30, 1999, the RTC of Makati City, Branch 149, rendered a Decision dismissing the petition. On appeal, the CA affirmed, in toto, the Decision of the RTC. Hence, herein petition raising the following issues: 1. "WHETHER OR NOT THE EVIDENCE SUPPORTS THE FINDINGS OF THE TRIAL COURT AND THE HONORABLE COURT OF APPEALS THAT DRA. CECILIA VILLEGAS FAILED TO STATE WHETHER OR NOT RESPONDENT'S INADEQUATE PERSONALITY

DISORDER WAS GRAVE, PERMANENT AND INCURABLE" (par. 12, p. 3, Annex "A", hereof). 2. "WITH ALL DUE RESPECT, THE COURT OF APPEALS ERRED IN DISMISSING THE APPEAL" (p. 7,ibid.). 3. "WITH ALL DUE RESPECT, THE COURT OF APPEALS ERRED IN DENYING THE MOTION FOR RECONSIDERATION" (Annex "B", hereof). 2 The basic issue to be resolved in the instant case is whether or not the totality of the evidence presented in the present case is enough to sustain a finding that herein respondent is psychologically incapacitated to comply with her essential marital obligations. In Santos v. Court of Appeals,3 the term psychological incapacity was defined as: [N]o less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of "psychological incapacity" to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. This psychologic condition must exist at the time the marriage is celebrated. x x x4 Psychological incapacity must be characterized by: (a) Gravity It must be grave or serious such that the party would be incapable of carrying out the ordinary duties required in a marriage; (b) Juridical Antecedence It must be rooted in the history of the party antedating the marriage, although the overt manifestations may emerge only after the marriage; and (c) Incurability It must be incurable or, even if it were otherwise, the cure would be beyond the means of the party involved. 5 While the CA has already extensively quoted the ruling in Republic of the Philippines v. Court of Appeals and Molina,6 wherein the guidelines in the interpretation and application of Article 36 7 of the Family Code was laid down, this Court finds it significant to reproduce the same quoted portion, to wit: (1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an entire Article on the Family, recognizing it "as the foundation of the nation." It decrees marriage as legally "inviolable," thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be "protected" by the state. The Family Code echoes this constitutional edict on marriage and the family and emphasizes their permanence, inviolability and solidarity.

(2) The root cause of the psychological incapacity must be (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological - not physical, although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or psychically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle of ejusdem generis, nevertheless such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists. (3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage. The evidence must show that the illness was existing when the parties exchanged their "I do's." The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto. (4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job. x x x (5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, "mild characteriological peculiarities, mood changes, occasional emotional outbursts" cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage. (6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision. (7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. x x x (8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095.8

Under the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages,9 which took effect on March 15, 2003, the foregoing guidelines have been modified. Section 2(d) of the said Rule provides: SEC. 2. Petition for declaration of absolute nullity of void marriages .xxxx (d) What to allege.- A petition under Article 36 of the Family Code shall specifically allege the complete facts showing that either or both parties were psychologically incapacitated from complying with the essential marital obligations of marriage at the time of the celebration of marriage even if such incapacity becomes manifest only after its celebration. The complete facts should allege the physical manifestations, if any, as are indicative of psychological incapacity at the time of the celebration of the marriage but expert opinion need not be alleged. The new Rule dispensed with the certification from the Solicitor General, stating therein his reasons for his agreement or opposition to the petition. Attachment of expert opinions to the petition is also dispensed with. In the instant case, the RTC and the CA gave credence to the conclusion of the examining psychiatrist, Dr. Villegas, that respondent is suffering from Inadequate Personality Disorder. However, both courts ruled that the behavior exhibited by respondent does not amount to psychological incapacity as contemplated under Article 36 of the Family Code. This Court finds no cogent reason to depart from the assessment of the RTC and the CA for the following reasons: First, petitioner relies heavily on the findings of Dr. Villegas who made the following written evaluation regarding respondent's psychological makeup: xxxx On the other hand, Mrs. Filipinas Mendoza-Tongol belonged to a matriarchal family where the mother assumed a more active and dominant role. She was left to the care of her aunt and developed a basic feeling a (sic) rejection. The only college graduate among 7 children her operating intellectual ability is low-average. Sudden change overwhelmed her. When seized by an impulse, she is likely to give way, even minor pressures upset her and when this happens, emotional control could not be relied upon. In marriage when her husband shows good relationship with their employees, especially with females, she became (sic) suspicious, jealous, and threatened, and this is related to her basic feelings of rejection in early life. She coped (sic) up with her uncomfortable feelings by exhibiting temper tantrums, irritability and dominance, a replica of her mother's attitude, but to the distaste of her husband. At present she is depressed, though hostile, and now living in the expectation of further rejection. Additionally, she is threatened by a neurological illness (tremor of the hands) for which she is consulting a neurologist.

Based on the above findings, it is the opinion of the undersigned that Mr. Orlando Tongol is suffering from some depressive features, which seems to be a recent development as a result of marital problems. On the other hand, Mrs. Tongol is suffering from an Inadequate Personality Disorder, with hysterical coloring, which renders her psychologically incapacitated to perform the duties and responsibilities of marriage. She is unable to cope with the sudden work and environmental shifts, that overwhelmed her, due to insufficient psychological inner resources. 10 In her testimony, Dr. Villegas explained respondent's personality disorder in this wise: ATTY. VILLAREAL xxxx Q- What exactly do you mean [by] inadequate personality disorder? A- Inadequate personality disorder means, there are not times that in all aspects of her life, she could not function in the way that she feels or she is confident. She has always been very much in doubt of her own capabilities, Sir. Q- What about hysterical coloring? A- Hysterical coloring means, there is always an exaggeration of her psychological reactions to any stresses, Sir. Q- Exaggeration in what aspect? A- Exaggeration in any emotional reactions or situations like if she would be seeing the husband talking to some employees then, she is suddenly irritable and would present some tantrums. In short, she cannot control her emotion at the moment of stresses circulations, Sir. 11 When asked how such personality disorder affects respondent's capacity to assume the essential obligations of marriage, Dr. Villegas expounded as follows: ATTY. RENDOR xxxx Q- How about Mrs. Tongol, what are your findings? A- Mrs. Tongol is a college graduate and she finished commerce. Basically, she has a feeling of rejection from the start of her development and this was carried on into her adult life. When the husband started having some good relationship with his employees, then she started to get jealous and she would embarrass him in front of their employees and insulted him and would go into tantrums and this was very much resented by Mr. Tongol, Sir. ATTY. RENDOR Q- In your expert opinion, Doctor, can you tell us the reason why Mrs. Tongol acted in such a way?

A- Because of her basic rejection at that time, Sir. She was afraid that Mr. Tongol was already rejecting her as a wife and being attracted to other people, but it is the way of how Mrs. Tongol reacted to her own feelings of rejection, Sir. xxxx Q- What made you say that because of inadequate personality disorder, Mrs. Tongol rendered her psychological (sic) incapacitated to perform the duties and responsibilities of the marriage. What is your basis in saying that? A- She belongs to a very matriarchal family. The mother was very dominant. She always gets what she wanted in the house. In short, she was the authority in the house and during her growing up stage, she was given up to the aunt, for the aunt to take care of her. She only came back to the family when she was already a sort of an early teenager. With this, there has always been a feeling of rejection during her personality development. Besides, she feels that she is one of those not favor (sic) by the mother during her growing up stage, Sir. Q- Based on your examination of the spouses, what do you recommend as far as the marriage is concerned, considering that this is a petition for the annulment of marriage? A- I could recommend that they have their marriage annulled because it will only be sufferings from (sic) both of them because on the part of Mrs. Tongol, it is one that is more or less permanent and Mr. Tongol is also suffering from some depression, Sir.12 The Court can only gather from the foregoing explanations of Dr. Villegas that as a child, Filipinas had always felt rejected, especially by her mother; that she never got rid of those feelings of rejection even when she became an adult and got married; that her fits of jealousy and temper tantrums, every time she sees her husband having a good interaction with their employees, are ways of coping up with her feelings of rejection. However, Dr. Villegas failed to link respondent's personality disorder to her conclusion that respondent is psychologically incapacitated to perform her obligations as wife and mother. The Court cannot see how respondent's personality disorder which, according to Dr. Villegas, is inextricably linked to her feelings of rejection, would render her unaware of the essential marital obligations, or to borrow the terms used in Santos, "to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage." What has been established in the instant case is that, by reason of her feelings of inadequacy and rejection, respondent not only encounters a lot of difficulty but even refuses to assume some of her obligations towards her husband, such as respect, help and support for him. However, this Court has ruled that psychological incapacity must be more than just a "difficulty," a "refusal" or a "neglect" in the performance of some marital obligations.13 As held in Santos: There is hardly any doubt that the intendment of the law has been to confine the meaning of "psychological incapacity" to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. This psychologic condition must exist at the time the marriage is celebrated. 14 Second, Dr. Villegas also failed to fully and satisfactorily explain if the personality disorder of respondent is grave enough to bring about her disability to assume the essential obligations of marriage. Petitioner contends that respondent's exaggerated reactions to normal situations, her unreasonable feelings of rejection brought about by her dysfunctional upbringing, are all indications of the gravity of her psychological condition. Even granting that respondent's psychological disorder is serious, the fact remains that there is no evidence to prove that such condition is of such nature as to render respondent incapable of carrying out the ordinary duties required in marriage.

Third, there is no evidence that such incapacity is incurable. Neither in her written evaluation nor in her testimony did Dr. Villegas categorically and conclusively characterize respondent's inadequate personality disorder as permanent or incurable. Dr. Villegas was not sure of the permanence or incurability of respondent's illness as shown by her following statement: I could recommend that they have their marriage annulled because it will only be sufferings from (sic) both of them because on the part of Mrs. Tongol, it is one that is more or less permanent and Mr. Tongol is also suffering from some depression, Sir.15 (Emphasis supplied) Fourth, the psychological incapacity considered under Article 36 of the Family Code is not meant to comprehend all possible cases of psychoses.16 The fourth guideline in Molina requires that the psychological incapacity as understood under Article 36 of the Family Code must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job. In the present case, the testimonies of both petitioner and respondent as well as the other witnesses regarding the spouses' differences and misunderstanding basically revolve around and are limited to their disagreement regarding the management of their business. In fact, respondent herself, in her Memorandum submitted to the trial court, claimed that their quarrels arose solely from their disagreement on how to run their business.17 This is confirmed by the testimony of petitioner's sister who lived with the spouses for a considerable period of time.18However, a mere showing of irreconcilable differences and conflicting personalities in no wise constitutes psychological incapacity. 19 In addition, it is true that the marital obligations of a husband and wife enumerated under the Family Code include the mutual responsibility of the spouses to manage the household and provide support for the family, which means that compliance with this obligation necessarily entails the management of the income and expenses of the household. While disagreements on money matters would, no doubt, affect the other aspects of one's marriage as to make the wedlock unsatisfactory, this is not a sufficient ground to declare a marriage null and void. In the present case, respondent's disagreement with her husband's handling of the family's business and finances and her propensity to start a fight with petitioner spouse regarding these matters can hardly be considered as a manifestation of the kind of psychological incapacity contemplated under Article 36 of the Family Code. In fact, the Court takes judicial notice of the fact that disagreements regarding money matters is a common, and even normal, occurrence between husbands and wives. Fifth, marital obligation includes not only a spouse's obligation to the other spouse but also one's obligation toward their children. In the present case, no evidence was presented to show that respondent had been remiss in performing her obligations toward their children as enumerated in Article 220 of the Family Code.20 It is settled that Article 36 of the Family Code is not to be confused with a divorce law that cuts the marital bond at the time the causes therefor manifest themselves. 21 It refers to a serious psychological illness afflicting a party even before the celebration of marriage. 22 It is a malady so grave and so permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is about to assume.23 In the instant case, the Court finds no error in the findings of the RTC, as affirmed by the CA, that the aversive behavior of petitioner and respondent towards each other is a mere indication of incompatibility brought about by their different family backgrounds as well as their attitudes, which developed after their marriage. In sum, it is not disputed that respondent is suffering from a psychological disorder. However, the totality of the evidence presented in the present case does not show that her personality disorder is of the kind contemplated by Article 36 of the Family Code as well as jurisprudence as to render her psychologically incapacitated or incapable of complying with the essential obligations of marriage.
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It remains settled that the State has a high stake in the preservation of marriage rooted in its recognition of the sanctity of married life and its mission to protect and strengthen the family as a basic autonomous social institution.24 Hence, any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. 25 WHEREFORE, the petition is DENIED. The September 25, 2002 Decision and March 19, 2003 Resolution of the Court of Appeals in CA-G.R. CV No. 66245 are AFFIRMED. SO ORDERED. MA. ALICIA AUSTRIA-MARTINEZ Associate Justice FIRST DIVISION G.R. No. 147824 August 2, 2007

ROSA YAP PARAS, petitioner, vs. JUSTO J. PARAS, respondent. DECISION SANDOVAL-GUTIERREZ, J.: This case presents another occasion to reiterate this Courts ruling that the Guidelines set forth in Republic v. Court of Appeals and Ronidel Olaviano Molina 1 "do not require that a physician should examine the person to be declared psychologically incapacitated. What is important is the presence of evidence that can adequately establish the partys psychological condition."2 Assailed in this petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, are the (a) Decision3 dated December 8, 2000 and (b) Resolution 4 dated April 5, 2001 of the Court of Appeals in CA-G.R. CV No. 49915, entitled "Rosa Yap-Paras, Plaintiff-Appellant vs. Justo J. Paras, Defendant-Appellee." On May 21, 1964, petitioner Rosa Yap married respondent Justo J. Paras in Bindoy, Negros Oriental. They begot four (4) children, namely: Raoul (+), Cindy Rose (+), Dahlia, and Reuel. Twenty-nine (29) years thereafter, or on May 27, 1993, Rosa filed with the Regional Trial Court (RTC), Branch 31, Dumaguete City, a complaint for annulment of her marriage with Justo, under Article 36 of the Family Code, docketed as Civil Case No. 10613. She alleged that Justo is psychologically incapacitated to exercise the essential obligations of marriage as shown by the following circumstances: (a) he dissipated her business assets and forged her signature in one mortgage transaction; (b) he lived with a concubine and sired a child with her; (c) he did not give financial support to his children; and (d) he has been remiss in his duties both as a husband and as a father.

To substantiate her charges, Rosa offered documentary and testimonial evidence. This is her story. She met Justo in 1961 in Bindoy. She was then a student of San Carlos University, Cebu City.5He courted her, frequently spending time at her "Botica." 6 Eventually, in 1964, convinced that he loved her, she agreed to marry him. Their wedding was considered one of the "most celebrated" marriages in Bindoy. 7 After the wedding, she and Justo spent one (1) week in Davao for their honeymoon. 8 Upon returning to Bindoy, they resided at her parents house. It was their residence for three (3) years until they were able to build a house of their own.9 For the first five (5) years of their marriage, Justo did not support her and their children because he shouldered his sisters schooling. 10 Consequently, she was the one who spent for all their family needs, using the income from her "Botica" and store. 11 Justo lived the life of a bachelor. 12 His usual routine was to spend time with his "barkadas" until the wee hours of the morning. Oftentimes, he would scold her when she sent for him during lunchtime.13 He also failed to provide for their childrens well-being. 14 Sometime in 1975, their daughter Cindy Rose was afflicted with leukemia. It was her family who paid for her medication. Also, in 1984, their son Raoul was electrocuted while Justo was in their rest house with his "barkadas." He did not heed her earlier advice to bring Raoul in the rest house as the latter has the habit of climbing the rooftop.15 To cope with the death of the children, the entire family went to the United States. Her sisters supported them throughout their two-year stay there. However, after three months, Justo abandoned them and left for the Philippines. Upon her return to the Philippines, she was shocked to find her "Botica" and other businesses heavy in debt. She then realized Justo was a profligate. At one time, he disposed without her consent a conjugal piece of land. 16 At other times, he permitted the municipal government to take gasoline from their gas station free of charge. She endured all of Justos shortcomings, but his act of maintaining a mistress and siring an illegitimate child was the last straw that prompted her to file the present case. She found that after leaving their conjugal house in 1988, Justo lived with Jocelyn Ching. Their cohabitation resulted in the birth of a baby girl, Cyndee Rose, obviously named after her (Rosa) and Justos deceased daughter Cindy Rose Paras.17 As expected, Justo has a different version of the story. He met Rosa upon his return to Bindoy after taking the bar examinations in Manila. 18 He frequently spent time in her store.19 Believing he loved her, he courted her and later on, they became sweethearts. In 1963, they decided to get married. However, it was postponed because her family demanded a dowry. Their marriage took place in 1964 upon his mothers signing a deed of conveyance involving 28 hectares of coconut land in favor of Rosa. 20 He blamed the subsequent dissipation of their assets from the slump of the price of sugar and not to his alleged profligacy.21 Due to his business ventures, he and Rosa were able to acquire a 10-room family house, expand their store, establish their gasoline station, and purchase several properties. He also denied forging her signature in one mortgage transaction. He maintained that he did not dispose of a conjugal property and that he and Rosapersonally signed the renewal of a sugar crop loan before the banks authorized employee.22 As to their marital relationship, he noticed the change in Rosas attitude after her return from the United States. She became detached, cold, uncaring, and overly focused on the familys

businesses.23 He tried to reach her but Rosa was steadfast in her "new attitudinal outlook." Before other people, he merely pretended that their relationship was blissful. 24 He did not abandon his family in the United States. It happened that they only had tourist visas. When they were there, their childrens tourist visas were converted into study visas, permitting them to stay longer. For his part, he was granted only three (3) months leave as municipal mayor of Bindoy, thus, he immediately returned to the Philippines. 25 He spent for his childrens education. At first, he resented supporting them because he was just starting his law practice and besides, their conjugal assets were more than enough to provide for their needs. He admitted though that there were times he failed to give them financial support because of his lack of income.26 What caused the inevitable family break-out was Rosas act of embarrassing him during his birthday celebration in 1987. She did not prepare food for the guests. When confronted, she retorted that she has nothing to do with his birthday. This convinced him of her lack of concern. 27 This was further aggravated when she denied his request for engine oil when his vehicle broke down in a mountainous and NPA-infested area. 28 As to the charge of concubinage, he alleged that Jocelyn Ching is not his mistress, but her secretary in his Law Office. She was impregnated by her boyfriend, a certain Grelle Leccioness. Cyndee Rose Ching Leccioness is not his daughter. After trial or on February 28, 1995, the RTC rendered a Decision upholding the validity of the marriage. It found that: (a) Justo did not abandon the conjugal home as he was forced to leave after Rosa posted guards at the gates of their house; 29 (b) the conjugal assets were sufficient to support the family needs, thus, there was no need for Justo to shell out his limited salary; 30 and (c) the charge of infidelity is unsubstantiated. 31 The RTC observed that the relationship between the parties started well, negating the existence of psychological incapacity on either party at the time of the celebration of their marriage.32 And lastly, it ruled that there appeared to be a collusion between them as both sought the declaration of nullity of their marriage. 33 Justo interposed an appeal to the Court of Appeals. In the interim, Rosa filed with this Court a petition for disbarment against Justo, docketed as A.C. No. 5333, premised on the same charges alleged in her complaint for declaration of nullity of marriage. On October 18, 2000, this Court rendered its Decision finding him guilty of falsifying Rosas signature in bank documents, immorality, and abandonment of his family. He was suspended from the practice of law, thus: In the light of the foregoing, respondent is hereby SUSPENDED from the practice of law for SIX (6) MONTHS on the charge of falsifying his wifes signature in bank documents and other related loan instruments; and for ONE (1) YEAR from the practice of law on the charges of immorality andabandonment of his own family, the penalties to be served simultaneously. Let notice of this Decision be spread in respondents record as an attorney, and notice of the same served on the Integrated Bar of the Philippines and on the Office of the Court Administrator for circulation to all the courts concerned. SO ORDERED.

On December 8, 2000 or nearly two months after this Court promulgated the Decision in A.C. No. 5333, the Court of Appeals affirmed the RTC Decision in the present case, holding that "the evidence of the plaintiff (Rosa) falls short of the standards required by law to decree a nullity of marriage." It ruled that Justos alleged defects or idiosyncracies "were sufficiently explained by the evidence," thus: Certainly, we cannot ignore what is extant on the record first, the income which supported their children came from the earnings of their conjugal properties and not singularly from Rosas industry; second, Justo gave his share of the support to his children in the form of allowances, albeit smaller than that derived from the conjugal property; third, he was booted out from their conjugal dwelling after he lost his bid for re-election and as such did not voluntarily abandon his home; and fourth, although unjustifiable in the eyes of the law and morality, Justos alleged infidelity came after he was driven out of his house by Rosa. x x x. The Court of Appeals likewise held that Rosas inability to offer the testimony of a psychologist is fatal to her case, being in violation of the tenets laid down by this Court in Molina. 34 Thus, she failed to substantiate her allegation that Justo is psychologically incapacitated from complying with the essential obligations of marriage. 35 Rosa filed a motion for reconsideration but it was denied. Hence, the instant petition for review on certiorari. Rosa contends that this Courts factual findings in A.C. No. 5333 for disbarment are conclusive on the present case. Consequently, the Court of Appeals erred in rendering contrary factual findings. Also, she argues that she filed the instant complaint sometime in May, 1993, well before this Courts pronouncement in Molina relied upon by the Court of Appeals. She states that she could have presented an expert to prove the root cause of Justos psychological incapacity had she been required to do so. For relief, she prays that her marriage with Justo be annulled on the bases of the Courts conclusive factual findings in A.C. No. 5333; or in the alternative, remand this case to the court a quo for reception of expert testimony in the interest of due process. In his comment on the petition, Justo asserts that the present case is a "new matter completely foreign and removed" from A.C. No. 5333; hence, the factual findings of this Court therein are not conclusive on this case. Besides, no hearing was conducted in A.C. No. 5333 as it was decided merely on the bases of pleadings and documents. The parties opposing contentions lead us to the following three (3) vital issues: first, whether the factual findings of this Court in A.C. No. 5333 are conclusive on the present case; second, whether a remand of this case to the RTC for reception of expert testimony on the root cause of Justos alleged psychological incapacity is necessary; and third, whether the totality of evidence in the case shows psychological incapacity on the part of Justo. The petition is bereft of merit. I

Whether the factual findings of this Court in A.C. No. 5333 are conclusive on the present case. Rosa, sad to say, had made much ado about nothing. A reading of the Court of Appeals Decision shows that she has no reason to feel aggrieved. In fact, the appellate court even assumed that her charges "are true," but concluded that they are insufficient to declare the marriage void on the ground of psychological incapacity. The pertinent portion of the Decision reads: Applying these parameters to the sifted evidence, we find that even if we assume Justos alleged infidelity, failure to support his family and alleged abandonment of their family home are true, such traits are at best indicators that he is unfit to become an ideal husband and father. However, by themselves, these grounds are insufficient to declare the marriage void due to an incurable psychological incapacity. These grounds, we must emphasize, do not manifest that he was truly incognitive of the basic marital covenants that he must assume and discharge as a married person. While they may manifest the "gravity" of his alleged psychological incapacity, they do not necessarily show incurability, such that while his acts violated the covenants of marriage, they do not necessarily show that such acts show an irreparably hopeless state of psychological incapacity which prevents him from undertaking the basic obligations of marriage in the future. 36 The Court of Appeals pointed this out in its Resolution denying Rosas motion for reconsideration, thus: Even as we are fully cognizant of the findings of the Supreme Court in the disbarment case appellant filed against her husband, namely, appellees falsification of documents to obtain loans and his infidelity, these facts, by themselves, do not conclusively establish appellees psychological incapacity as contemplated under Article 36 of the Family Code. In fact, we already went as far as to presume the existence of such seeming depravities in appellees character in our earlier judgment. However, as we emphasized in our Decision, the existence of such eventualities is not necessarily conclusive of an inherent incapacity on the part of appellee to discern and perform the rudiments of marital obligations as required under Article 36.37 Clearly, Rosas insistence that the factual findings in A.C. No. 5333 be considered "conclusive" on the present case is unmeritorious. The Court of Appeals already "went as far as to presume the existence" of Justos depravities, however, even doing so could not bring about her (Rosas) desired result. As Rosas prayer for relief suggests, what she wants is for this Court to annul her marriage on the bases of its findings in A.C. No. 5333. 38Obviously, she is of the impression that since her charges in A.C. No. 5333 were found to be true, justifying the suspension of Justo from the practice of law, the same charges are also sufficient to prove his psychological incapacity to comply with the essential marital obligations. Her premise is of course non-sequitur. Jurisprudence abounds that administrative cases against lawyers belong to a class of their own. They are distinct from and may proceed independently of civil and criminal cases. The basic premise is that criminal and civil cases are altogether different from administrative matters, such that the disposition in the first two will not inevitably govern the third and vice versa.39 The Courts exposition in In re Almacen40 is instructive, thus: x x x Disciplinary proceedings against lawyers are sui generis. Neither purely civil nor purely criminal, they do not involve a trial of an action or a suit, but are rather investigations by the Court into the conduct of one of its officers. Not being intended to inflict punishment, [they

are] in no sense a criminal prosecution. Accordingly, there is neither a plaintiff nor a prosecutor therein. [They] may be initiated by the Court motu proprio. Public interest is [their] primary objective, and the real question for determination is whether or not the attorney is still a fit person to be allowed the privileges as such. Hence, in the exercise of its disciplinary powers, the Court merely calls upon a member of the Bar to account for his actuations as an officer of the Court with the end in view of preserving the purity of the legal profession and the proper and honest administration of justice by purging the profession of members who by their misconduct have prove[n] themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an attorney. In such posture, there can thus be no occasion to speak of a complainant or a prosecutor. Accordingly, ones unfitness as a lawyer does not automatically mean ones unfitness as a husband or vice versa.41 The yardsticks for such roles are simply different. This is why the disposition in a disbarment case cannot be conclusive on an action for declaration of nullity of marriage. While Rosas charges sufficiently proved Justos unfitness as a lawyer, however, they may not establish that he is psychologically incapacitated to perform his duties as a husband. In the disbarment case, "the real question for determination is whether or not the attorney is still a fit person to be allowed the privileges as such." Its purpose is "to protect the court and the public from the misconduct of officers of the court." On the other hand, in an action for declaration of nullity of marriage based on the ground of psychological incapacity, the question for determination is whether the guilty party suffers a grave, incurable, and pre-existing mental incapacity that renders him truly incognitive of the basic marital covenants. Its purpose is to free the innocent party from a meaningless marriage. In this case, as will be seen in the following discussion, Justos acts are not sufficient to conclude that he is psychologically incapacitated, albeit such acts really fall short of what is expected from a lawyer. II Whether a remand of this case to the RTC is necessary. The presentation of an expert witness to prove psychological incapacity has its origin in Molina.42 One of the Guidelines set forth therein states: (2) The root cause of the psychological incapacity must be (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts, and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological -- not physical, although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or psychically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle of ejusdem generis, nevertheless such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists. In the 2000 case of Marcos v. Marcos,43 the Court clarified that the above Guideline does not require that the respondent should be examined by a physician or psychologist as a condition sine qua non for the declaration of the nullity of marriage. What is important is "the presence of evidence that can adequately establish the partys psychological condition."

Interestingly, in the same year (2000) that Marcos was decided, the Court backtracked a bit when it held inRepublic v. Dagdag44 that, "the root cause of psychological incapacity must be medically or clinically identified and sufficiently proven by experts " and this requirement was not deemed complied with where no psychiatrist or medical doctor testified on the alleged psychological incapacity of one party. Significantly, the New Rules on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages,45 promulgated by this Court on March 15, 2003, geared towards the relaxation of the requirement of expert opinion. Section 2, paragraph (d) states: (d) What to allege.- A petition under Article 36 of the Family Code shall specifically allege the complete facts showing that either or both parties were psychologically incapacitated from complying with the essential marital obligations of marriage at the time of the celebration of marriage even if such incapacity becomes manifest only after its celebration. The complete facts should allege the physical manifestations, if any, as are indicative of psychological incapacity at the time of the celebration of the marriage but expert opinion need not be alleged. In Barcelona v. Court of Appeals,46 this Court categorically explained that under the New Rules, a petition for declaration of nullity under Article 36 of the Family Code need not allege expert opinion on the psychological incapacity or on its root cause. What must be alleged are the physical manifestations indicative of said incapacity. The Court further held that the New Rules, being procedural in nature, apply to actions pending and unresolved at the time of their adoption. Later, in 2005, the Court reiterated the Marcos doctrine in Republic v. Iyoy.47 Thus: A later case, Marcos v. Marcos, further clarified that there is no requirement that the defendant/respondent spouse should be personally examined by a physician or psychologist as a condition sine qua non for the declaration of nullity of marriage based on psychological incapacity. Accordingly, it is no longer necessary to allege expert opinion in a petition under Article 36 of the Family Code of the Philippines. Such psychological incapacity, however, must be established by the totality of the evidence presented during the trial. Significantly, the present case is exactly akin to Pesca v. Pesca.48 Pesca stemmed from a complaint for declaration of nullity of marriage under Article 36 filed by a battered wife sometime in April 1994. The trial court, in its Decision dated November 15, 1995, decreed the marriage void ab initio on the ground of psychological incapacity on the part of the husband. The Court of Appeals reversed the trial courts Decision, applying theGuidelines set forth in Santos v. Court of Appeals49 and Molina.50 When the matter was brought to this Court, the wife argued that Santos and Molina should not have retroactive application, the Guidelines being merely advisory and not mandatory in nature. She submitted that the proper application of Santos and Molina warranted only a remand of her case to the trial court for further proceedings, not a dismissal. The Court declined to remand Pesca51 on the premise that the Santos and Molina Guidelines "constitute a part of the law as of the date the statute is enacted," thus: The doctrine of stare decisis, ordained in Article 8 of the Civil Code, expresses that judicial decisions applying or interpreting the law shall form part of the legal system of the Philippines. The rule follows the settled legal maxim legis interpretado legis vim obtinet that the interpretation placed upon the written law by a competent court has the force of

law. The interpretation or construction placed by the courts establishes the contemporaneous legislative intent of the law. The latter as so interpreted and construed would thus constitute a part of the law as of the date the statute is enacted . It is only when a prior ruling of this Court finds itself later overruled, and a different view is adopted, that the new doctrine may have to be applied prospectively in favor of parties who have relied on the old doctrine and have acted in good faith in accordance therewith under the familiar rule of lex prospicit, non replicit. The Court then opted to examine the evidence. It affirmed that the wife failed, both in her allegations in the complaint and in her evidence, to make out a case of psychological incapacity on the part of her husband. The Court then concluded that "emotional immaturity and irresponsibility" cannot be equated with psychological incapacity. Applying the foregoing cases, Marcos, Barcelona, Iyoy, and Pesca, to the instant case, there is no reason to remand it to the trial court. The records clearly show that there is sufficient evidence to establish the psychological condition of Justo. III Whether the totality of evidence in the case shows psychological incapacity on the part of Justo as to justify the declaration of nullity of marriage. The last issue left for this Courts consideration is whether the totality of the evidence is sufficient to sustain a finding of psychological incapacity on the part of Justo so as to justify the dissolution of the marriage in question. At this juncture, it is imperative that the parties be reminded of the States policy on marriage. Article XV of the Constitution mandates that: SEC. 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. SEC. 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. This State policy on the inviolability of marriage has been enshrined in Article 1 of the Family Code which states that: ART. 1. 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. Given the foregoing provisions of constitutional and statutory law, this Court has held fast to the position that any doubt as to the validity of a marriage is to be resolved in favor of its validity.52 Semper praesumitur pro matrimonio.

Of course, the law recognizes that not all marriages are made in heaven. Imperfect humans more often than not create imperfect unions. Thus, when the imperfection is psychological in nature and renders a person incapacitated to comply with the essential marital obligations, the State provides refuge to the aggrieved spouse under Article 36 of the Family Code which reads: ART. 36. A marriage contracted by a party who, at the time of celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage shall likewise be void even if such incapacity becomes manifest only after its solemnization. In Molina,53 the Court laid down the Guidelines for the interpretation and application of Article 36, thus: (1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. x x x. (2) The root cause of the psychological incapacity must be (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological -- not physical, although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, were mentally or psychically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle ofejusdem generis, nevertheless such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists. (3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage. The evidence must show that the illness was existing when the parties exchanged their "I dos." The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto. (4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses of children and prescribing medicine to cure them but may not be psychologically capacitated to procreate, bear and raise his/her own children as an essential obligation of marriage. (5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, "mild characteriological peculiarities, mood changes, occasional emotional outbursts" cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage. (6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the

same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision. (7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. (8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculicontemplated under Canon 1095. The foregoing Guidelines incorporate the basic requirements mandated by the Court in Santos, 54 to reiterate: psychological incapacity must be characterized by (a) gravity; (b) juridical antecedence; and (c) incurability. A review of the complaint, as well as the testimonial and documentary evidence, shows that Rosas main grounds in seeking the declaration of nullity of her marriage with Justo are his infidelity, profligacy which includes the falsification of her signature in one of the loan documents, failure to support the children, andabandonment of the family. Both the courts below found the charges unsubstantiated and untrue. However, this Court, in A.C. No. 5333 for disbarment, found the evidence sufficient to support Rosas charges of sexual infidelity, falsification of her signature, and abandonment of family, thus: ON THE CHARGE OF FALSIFICATION OF COMPLAINANTS SIGNATURE The handwriting examination conducted by the National Bureau of Investigation on the signatures of complainant Rosa Yap Paras and respondent Justo de Jesus Paras vis--vis the questioned signature "Rosa Y. Paras" appearing in the questioned bank loan documents, contracts of mortgage and other related instrument, yielded the following results: CONCLUSION: 1. The questioned and the standard sample signatures JUSTO J. PARAS were written by one and the same person. 2. The questioned and the standard sample signatures ROSA YAP PARAS were not written by one and the same person. (Annex "B", Rollo, p. 26, emphasis ours;) The NBI did not make a categorical statement that respondent forged the signatures of complainant. However, an analysis of the above findings lead to no other conclusion than that the questioned or falsified signatures of complainant Rosa Y. Paras were authored by respondent as said falsified signatures were the same as the sample signatures of respondent.

To explain this anomaly, respondent presented a Special Power of Attorney (SPA) executed in his favor by complainant to negotiate for an agricultural or crop loan from the Bais Rural Bank of Bais City. Instead of exculpating respondent, the presence of the SPA places him in hot water. For if he was so authorized to obtain loans from the banks, then why did he have to falsify his wifes signatures in the bank loan documents? The purpose of an SPA is to especially authorize the attorney-in-fact to sign for and on behalf of the principal using his own name. ON THE CHARGE OF IMMORALITY AND CONCUBINAGE The evidence against respondent is overwhelming. The affidavit-statements of his children and three other persons who used to work with him and have witnessed the acts indicative of his infidelity more than satisfy this Court that respondent has strayed from the marital path. The baptismal certificate of Cyndee Rose Paras where respondent was named as the father of the child (Annex "J", Rollo, p. 108); his naming the child after his deceased first-born daughter Cyndee Rose; and his allowing Jocelyn Ching and the child to live in their house in Dumaguete City bolster the allegation that respondent is carrying on an illicit affair with Ms. Ching, the mother of his illegitimate child. While this Court is convinced that the charges hurled against Justo by Rosa, such as sexual infidelity, falsification of her signature, abandonment and inadequate support of children, are true, nonetheless, there is nothing in the records showing that they were caused by a psychological disorder on his part. In other words, the totality of the evidence is not sufficient to show that Justo is psychologically incapacitated to comply with the essential marital obligations. The records indicate that the marriage between the parties had a good start, resulting in the birth of their four (4) children. The early days of their cohabitation were blissful and harmonious. Justo was deeply in love with Rosa, even persuading his mother to give her a dowry. They were able to build a 10-room family home and acquire several properties, thus, proving themselves to be responsible couple. Even Rosa admitted that Justo took care of their children when they were young. Unfortunately, the passage of time appeared to have taken its toll on their relationship. The acts committed by Justo appeared to have been the result of irreconcilable differences between them caused by the death of their two (2) children and financial difficulties due to his failure to win the mayoralty election and to sustain his law practice. Furthermore, the superior business acumen of Rosa, as well as the insolent attitude of her family towards Justo, busted his ego and lowered his self-esteem. There is no evidence that Justos "defects" were present at the inception of the marriage . His "defects" surfaced only in the latter years when these events took place; their two children died; he lost in the election; he failed in his business ventures and law practice; and felt the disdain of his wife and her family. Surely, these circumstances explain why Rosa filed the present case only after almost 30 years of their marriage. Equally important is that records fail to indicate that Justos "defects" are incurable or grave. The following catena of cases provides an adequate basis why the marriage between Justo and Rosa should not be annulled. In Dedel v. Court of Appeals55 which involved a promiscuous wife who left her family to live with one of her many paramours, this Court ruled that the acts of sexual infidelity and abandonment do not constitute psychological incapacity absent a showing of the presence of such promiscuity at the inception of the marriage, thus:

x x x. In this case, respondents sexual infidelity can hardly qualify as being mentally or physically ill to such an extent that she could not have known the obligations she was assuming, or knowing them, could not have given a valid assumption thereof. It appears that respondents promiscuity did not exist prior to or at the inception of the marriage. What is, in fact, disclosed by the records is a blissful marital union at its celebration, later affirmed in church rites, and which produced four children . Respondents sexual infidelity or perversion and abandonment do not by themselves constitute psychological incapacity within the contemplation of the Family Code. Neither could her emotional immaturity and irresponsibility be equated with psychological incapacity. It must be shown that these acts are manifestations of a disordered personality which make respondent completely unable to discharge the essential obligations of the marital state, not merely due to her youth, immaturity, or sexual promiscuity. In Carating-Siayngco v. Siayngco,56 the wifes inability to conceive led her husband to other women so he could fulfill his ardent wish to have a child of his own flesh and blood. This Court ruled that this is not a manifestation of psychological incapacity in the contemplation of the Family Code. In Choa v. Choa,57 this Court declared that a mere showing of irreconcilable differences and conflicting personalities does not constitute psychological incapacity. And, again, in Iyoy,58 a Filipina left her husband, married an American and had a family by him, which she flaunted to her former husband. This Court ruled that these acts, while embarrassing and hurting to the latter, did not satisfactorily establish a serious or grave psychological or mental defect of an incurable nature present at the time of marriage; and that irreconcilable differences, conflicting personalities, emotional immaturity, and irresponsibility, physical abuse, habitual alcoholism, sexual infidelity or perversion, and abandonment per se do not warrant a finding of psychological incapacity under Article 36. What is clear in this case is a husband who has gone astray from the path of marriage because of a conflicting relationship with his wife and her family and repeated lifes setbacks. While these do not justify his sins, they are not sufficient to establish that he is psychologically incapacitated. It is worthy to emphasize that Article 36 contemplates downright incapacity or inability to take cognizance of and assume the basic marital obligations, not a mere refusal, neglect or difficulty, much less, ill will, on the part of the errant spouse.59 As this Court repeatedly declares, Article 36 of the Family Code is not to be confused with a divorce law that cuts the marital bond at the time the causes thereof manifest themselves. It refers to a serious psychological illness afflicting a party even before the celebration of the marriage. It is a malady so grave and so permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is about to assume. These marital obligations are those provided under Articles 68 to 71, 220, 221 and 225 of the Family Code.60 Neither should Article 36 be equated with legal separation, in which the grounds need not be rooted in psychological incapacity but on physical violence, moral pressure, moral corruption, civil interdiction, drug addiction, sexual infidelity, and abandonment, and the like. At best the evidence presented by petitioner refers only to grounds for legal separation, not for declaring a marriage void.61 In sum, this Court finds no cogent reason to reverse the ruling of the Court of Appeals. While this Court commiserates with Rosas plight, however, it has no choice but to apply the law. Dura lex sed lex.

WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. CV No. 49915 are AFFIRMED. No pronouncement as to costs. SO ORDERED. Puno, Chief Justice, Corona, Azcuna, Garcia, JJ., concur.

SPECIAL FIRST DIVISION LESTER BENJAMIN S. HALILI, Petitioner, G.R. No. 165424 Present: PUNO, C.J., Chairperson, CORONA, VELASCO, JR., LEONARDO-DE CASTRO and PERALTA, JJ.

- versus -

CHONA M. SANTOS-HALILI and THE REPUBLIC OF THE PHILIPPINES, Respondents.

Promulgated: June 9, 2009

x--------------------------------------------------x RESOLUTION CORONA, J.: This resolves the motion for reconsideration of the April 16, 2008 resolution of this Court denying petitioners petition for review on certiorari (under Rule 45 of the Rules of Court). The petition sought to set aside the January 26, 2004 decision[1] and September 24, 2004 resolution[2] of the Court of Appeals (CA) in CA-G.R. CV No. 60010.

Petitioner Lester Benjamin S. Halili filed a petition to declare his marriage to respondent Chona M. Santos-Halili null and void on the basis of his psychological incapacity to perform the essential obligations of marriage in the Regional Trial Court (RTC), Pasig City, Branch 158. He alleged that he wed respondent in civil rites thinking that it was a joke. After the ceremonies, they never lived together as husband and wife, but maintained the relationship. However, they started fighting constantly a year later, at which point petitioner decided to stop seeing respondent and started dating other women. Immediately thereafter, he received prank calls telling him to stop dating other women as he was already a married man. It was only upon making an inquiry that he found out that the marriage was not fake. Eventually, the RTC found petitioner to be suffering from a mixed personality disorder, particularly dependent and self-defeating personality disorder, as diagnosed by his expert witness, Dr. Natividad Dayan. The court a quo held that petitioners personality disorder was serious and incurable and directly affected his capacity to comply with his essential marital obligations to respondent. It thus declared the marriage null and void.[3] On appeal, the CA reversed and set aside the decision of the trial court on the ground that the totality of the evidence presented failed to establish petitioners psychological incapacity. Petitioner moved for reconsideration. It was denied. The case was elevated to this Court via a petition for review under Rule 45. We affirmed the CAs decision and resolution upholding the validity of the marriage.

Petitioner then filed this motion for reconsideration reiterating his argument that his marriage to respondent ought to be declared null and void on the basis of his psychological incapacity. He stressed that the evidence he presented, especially the testimony of his expert witness, was more than enough to sustain the findings and conclusions of the trial court that he was and still is psychologically incapable of complying with the essential obligations of marriage. We grant the motion for reconsideration. In the recent case of Te v. Yu-Te and the Republic of the Philippines,[4] this Court reiterated that courts should interpret the provision on psychological incapacity (as a ground for the declaration of nullity of a marriage) on a case-tocase basis guided by experience, the findings of experts and researchers in psychological disciplines and by decisions of church tribunals. Accordingly, we emphasized that, by the very nature of Article 36, courts, despite having the primary task and burden of decision-making, must consider as essential the expert opinion on the psychological and mental disposition of the parties.[5] In this case, the testimony[6] of petitioners expert witness revealed that petitioner was suffering from dependent personality disorder. Thus:
Q. Dr. Dayan, going back to the examinations and interviews which you conducted, can you briefly tell this court your findings [and] conclusions? A. Well, the petitioner is suffering from a personality disorder. It is a mixed personality disorder from self-defeating personality disorder to [dependent] personality disorder and this is brought about by [a] dysfunctional family that petitioner had. He also suffered from partner

relational problem during his marriage with Chona. There were lots of fights and it was not truly a marriage, sir. Q. Now, what made you conclude that Lester is suffering from psychological incapacity to handle the essential obligations of marriage? A. Sir, for the reason that his motivation for marriage was very questionable. It was a very impulsive decision. I dont think he understood what it meant to really be married and after the marriage, there was no consummation, there was no sexual intercourse, he never lived with the respondent. And after three months he refused to see or talk with the respondent and afterwards, I guess the relationship died a natural death, and he never thought it was a really serious matter at all. xx xx xx Q. Likewise, you stated here in your evaluation that Lester Halili and respondent suffered from a grave lack of discretionary judgment. Can you expound on this? A. xx xx I dont think they truly appreciate the civil [rites which] they had undergone. [It was] just a spur of the moment decision that they should get married xx xx I dont think they truly considered themselves married. xx xx xx Q. Now [from] what particular portion of their marriage were you able to conclude xx xx that petitioner and respondent are suffering from psychological incapacity? A. xx xx they never lived together[.] [T]hey never had a residence, they never consummated the marriage. During the very short relationship they had, there were frequent quarrels and so there might be a problem also of lack of respect [for] each other and afterwards there was abandonment.

In Te, this Court defined dependent personality disorder[7] as [a] personality disorder characterized by a pattern of dependent and submissive behavior. Such individuals usually lack self-esteem and frequently belittle their capabilities; they fear criticism and are easily

hurt by others comments. At times they actually bring about dominance by others through a quest for overprotection. Dependent personality disorder usually begins in early adulthood. Individuals who have this disorder may be unable to make everyday decisions without advice or reassurance from others, may allow others to make most of their important decisions (such as where to live), tend to agree with people even when they believe they are wrong, have difficulty starting projects or doing things on their own, volunteer to do things that are demeaning in order to get approval from other people, feel uncomfortable or helpless when alone and are often preoccupied with fears of being abandoned.

In her psychological report,[8] Dr. Dayan stated that petitioners dependent personality disorder was evident in the fact that petitioner was very much attached to his parents and depended on them for decisions.[9]Petitioners mother even had to be the one to tell him to seek legal help when he felt confused on what action to take upon learning that his marriage to respondent was for real.[10] Dr. Dayan further observed that, as expected of persons suffering from a dependent personality disorder, petitioner typically acted in a self-denigrating manner and displayed a self-defeating attitude. This submissive attitude encouraged other people to take advantage of him.[11] This could be seen in the way petitioner allowed himself to be dominated, first, by his father who treated his family like robots[12] and, later, by respondent who was as domineering as his father.[13] When petitioner could no longer take respondents domineering ways, he preferred to hide from her rather than confront her and tell her outright that he wanted to end their marriage.[14] Dr. Dayan traced petitioners personality disorder to his dysfunctional family life, to wit:[15]

Q. And what might be the root cause of such psychological incapacity? A. Sir, I mentioned awhile ago that Lesters family is dysfunctional. The father was very abusive, very domineering. The mother has been very unhappy and the children never had affirmation. They might [have been] x x x given financial support because the father was [a] very affluent person but it was never an intact family. x x x The wife and the children were practically robots. And so, I would say Lester grew up, not having self-confidence, very immature and somehow not truly understand[ing] what [it] meant to be a husband, what [it] meant to have a real family life.

Ultimately, Dr. Dayan concluded that petitioners personality disorder was grave and incurable and already existent at the time of the celebration of his marriage to respondent.[16] It has been sufficiently established that petitioner had a psychological condition that was grave and incurable and had a deeply rooted cause. This Court, in the same Te case, recognized that individuals with diagnosable personality disorders usually have long-term concerns, and thus therapy may be long-term.
[17]

Particularly, personality disorders are long-standing, inflexible ways of

behaving that are not so much severe mental disorders as dysfunctional styles of living. These disorders affect all areas of functioning and, beginning in childhood or adolescence, create problems for those who display them and for others.[18] From the foregoing, it has been shown that petitioner is indeed suffering from psychological incapacity that effectively renders him unable to perform the essential obligations of marriage. Accordingly, the marriage between petitioner and respondent is declared null and void.

WHEREFORE, the

motion

for

reconsideration

is

hereby GRANTED. The April 16, 2008 resolution of this Court and the January 26, 2004 decision and September 24, 2004 resolution of the Court of Appeals in CA-G.R. CV No. 60010 are SET ASIDE. The decision of the Regional Trial Court, Pasig City, Branch 158 dated April 17, 1998 is hereby REINSTATED. SO ORDERED. RENATO C. CORONA Associate Justice
FIRST DIVISION G.R. No. 173294 February 27, 2008

RENNE ENRIQUE BIER, petitioner, vs. MA. LOURDES A. BIER and THE REPUBLIC OF THE PHILIPPINES, respondents. DECISION CORONA, J.: This petition for review on certiorari 1 seeks to set aside the March 20, 2006 decision2 and July 3, 2006 resolution3of the Court of Appeals (CA) in CA-G.R. CV No. 66952. Petitioner Renne Enrique E. Bier met respondent Ma. Lourdes A. Bier through his sister. Their courtship, which blossomed as a result of the exchange of long distance calls between them, lasted six months. Back then, petitioner observed respondent to be a very sweet and thoughtful person. This, he said, made him fall in love with her. On July 26, 1992, six months after their first meeting, they were married at the UST Santissimo Rosario Parish Church. Everything went well for the first three years of their marriage. Respondent was everything petitioner could hope for in a wife sweet, loving and caring. She also took good care of the house. As petitioner was based in Saudi Arabia as an electronics technician at Saudia Airlines, the parties decided to maintain two residences, one in the Philippines and another in Saudi Arabia. They took turns shuttling between the two countries just so they could spend time together.

The couple started experiencing marital problems after three years of marriage. According to petitioner, respondent ceased to be the person he knew and married. She started becoming aloof towards him and began to spend more time with her friends than with him, refusing even to have sexual relations with him for no apparent reason. She became an alcoholic and a chain-smoker. She also started neglecting her husband's needs and the upkeep of their home, and became an absentee wife. After being gone from their home for days on end, she would return without bothering to account for her absence. As a result, they frequently quarreled. Finally, on April 10, 1997, respondent suddenly left for the United States. Petitioner has not heard from her since. On April 1, 1998, petitioner instituted in the Regional Trial Court (RTC) of Quezon City, Branch 89, a petition for the declaration of nullity of marriage on the ground that respondent was psychologically incapacitated to fulfill her essential marital obligations to petitioner. It was docketed as Civil Case No. Q-98-33993. Per sheriff's return, summons was served through substituted service as personal service proved futile. Respondent, however, did not file an answer. Thereafter, the RTC ordered Assistant City Prosecutor Edgardo T. Paragua to investigate if there was collusion between the parties and to intervene for the State to see to it that evidence was not fabricated. Assistant City Prosecutor Paragua manifested that, since both parties failed to appear before him, he was unable to make a ruling on the issue of collusion and determine if the evidence was fabricated. After petitioner filed his pre-trial brief, Prosecutor Paragua filed a second manifestation stating that petitioner had appeared before him and that, after investigation, he was convinced that there was no collusion between the parties and that the evidence was not fabricated. At pre-trial, only petitioner appeared. As respondent failed to attend the same, the RTC declared her to have waived the pre-trial. Thereafter, trial on the merits ensued. Again, respondent did not take part in the proceedings. Petitioner filed a written offer of exhibits which was admitted by the trial court. The Office of the Solicitor General (OSG) filed a certification and manifested its disfavor towards declaring the marriage null and void. It argued that no persuasive evidence was presented warranting the grant of the petition, specially since petitioner failed to comply with the guidelines laid down in Republic v. CA and Molina4 (Molina). After trial, the trial court rendered judgment 5 granting the petition: WHEREFORE, premises considered, judgment is hereby rendered declaring as VOID, based upon the respondent's psychological incapacity, the marriage contracted on July 26, 1992 between Renne Enrique E. Bier and Ma. Lourdes A. Bier. As such, their property relations shall be governed by the rules on co-ownership pursuant to Article 147 of the Family Code. Henceforth, their property relations shall be governed by the regime of complete separation of property. Let a copy of this decision be furnished the Civil Registrar General, National Census and Statistics Office and the Local Civil Registrar of Manila, ordering them to attach a copy of this Decision to the Marriage Contract of herein petitioner and respondent on file with respective office.

With costs against the respondent. SO ORDERED. Respondent Republic of the Philippines, through the OSG, appealed the decision of the RTC to the CA, docketed as CA-G.R. CV No. 66952. The CA held that petitioner failed to comply with the guidelines laid down in Molina as the root cause of respondent's psychological incapacity was not medically or clinically identified. Worse, the same was not even alleged in the petition filed in the court a quo. As such, it granted the appeal and reversed the decision of the trial court. The dispositive portion of the assailed decision6 read: WHEREFORE, premises considered, the appeal is GRANTED. The Decision dated 06 March 2000 of the Regional Trial Court of Quezon City, Branch 89 in Civil Case No. Q-9833993, which declared as void the marriage between appellee and respondent, is REVERSED and SET ASIDE. The marriage of Renne Enrique E. Bier and respondent Ma. Lourdes A. Bier remains valid and subsisting. No costs. SO ORDERED. Petitioner moved for reconsideration of the CA decision. The same was denied. Hence, this recourse. Petitioner contends that the guidelines enunciated in Molina, specifically its directive that the root cause of the psychological incapacity must be identified as a psychological illness and its incapacitating nature fully explained, and that it must be proven to be existing at the inception of the marriage, need not be strictly complied with asMolina itself stated the guidelines were merely "handed down for the guidance of the bench and bar" and were not meant to be a checklist of requirements in deciding cases involving psychological incapacity. Furthermore, even assuming arguendo that the Molina doctrine should be applied, the RTC erred in ruling that he failed to comply therewith. The petition must fail. Preliminarily, we must pass upon petitioners argument that the finding of the trial court on the existence or non-existence of psychological incapacity is final and binding on us absent any showing that its factual findings and evaluation of the evidence were clearly and manifestly erroneous.7 Petitioners position is of course the general rule. In the instant case, however, it is the exception to the general rule which must be applied; the court a quoclearly erred in granting the petition. It stated in the body of its decision that: While this Court agrees with the observation of the Office of the Solicitor General that the juridical antecedence of the psychological disorder and its root cause were not established, the same will not serve as a hindrance for the Court to declare that respondent is indeed suffering from a psychological incapacity. The failure of the Psychological Report to identify the root cause of respondent's psychological incapacity is not a fatal flaw that will prevent the Court from declaring a marriage a nullity based on psychological incapacity. (Emphasis supplied) The trial court apparently overlooked the fact that this Court has been consistent in holding that if a petition for nullity based on psychological incapacity is to be given due course, its gravity, root

cause, incurability and the fact that it existed prior to or at the time of celebration of the marriage must always be proved.8 As early as Santos v. CA, et al.,9 we already held that: [P]sychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability. The incapacity must be grave or serious such that the party would be incapable of carrying out the ordinary duties required in marriage; it must be rooted in the history of the party antedating the marriage, although the overt manifestations may emerge only after the marriage; and it must be incurable or, even if it were otherwise, the cure would be beyond the means of the party involved. xxx This psychologic condition must exist at the time the marriage is celebrated. xxx (Emphasis supplied) These must be strictly complied with as the granting of a petition for nullity of marriage based on psychological incapacity must be confined only to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage.10 This is specially so since the Family Code does not define psychological incapacity. The determination thereof is left solely to the discretion of the courts and must be made on a case-tocase basis.11 Also, even if Molina was never meant to be a checklist of the requirements in deciding cases involving Article 36 (psychological incapacity) of the Family Code, a showing of the gravity, juridical antecedence and incurability of the party's psychological incapacity and its existence at the inception of the marriage cannot be dispensed with. InMarcos v. Marcos (Marcos),12 a case cited by petitioner to support his argument that the totality of evidence presented was enough to prove the existence of respondent's psychological incapacity, this Court reiterated that: The [Molina] guidelines incorporate the three basic requirements earlier mandated by the Court in Santos v. Court of Appeals: "psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability. The foregoing guidelines do not require that a physician examine the person to be declared psychologically incapacitated. In fact, the root cause may be "medically or clinically identified." What is important is the presence of evidence that can adequately establish the party's psychological condition. For indeed, if the totality of evidence presented is enough to sustain a finding of psychological incapacity, then actual medical examination of the person concerned need not be resorted to. xxx xxx xxx

[t]he totality of his acts does not lead to a conclusion of psychological incapacity on his part. There is absolutely no showing that his "defects" were already present at the inception of the marriage or that they are incurable. (Emphasis supplied) Furthermore, the 2005 case of Republic v. Iyoy 13 held that even if Marcos (2000) relaxed the rules such that the personal examination of the party alleged to be psychologically incapacitated by a psychiatrist or psychologist is no longer mandatory for the declaration of nullity of the marriage under Article 36 of the Family Code, the totality of evidence must still prove the gravity, juridical antecedence and incurability of the alleged psychological incapacity. Failure in this regard will spell the failure of the petition. From the foregoing, one can conclude that petitioner's insistence that Marcos effectively overturned the need to present evidence on the aforesaid requirements has no merit. Thus, unless the law itself

or the Court provides otherwise, these requirements must be established before a petition for nullity of the marriage based on psychological incapacity can be granted. We hold that the trial court's decision to declare the parties' marriage void ab initio by reason of respondent's psychological incapacity was clearly and manifestly erroneous as it overlooked the need to show the gravity, root cause and incurability of respondent's psychological incapacity and that it was already present at the inception of the marriage. Be that as it may, the main question that begs to be answered in the instant case is whether the totality of the evidence presented was enough to establish that respondent was psychologically incapacitated to perform her essential marital obligations. We rule in the negative. Petitioner had the burden of proving the nullity of his marriage with respondent. 14 He failed to discharge it. The evidence for petitioner consisted of his own testimony and that of his brother, Roderico Bier. He also presented as evidence a psychological report written by Dr. Nedy Tayag, a clinical psychologist, who also testified on the matters contained therein. Dr. Tayag's report, which found respondent to be suffering from psychological incapacity, particularly a narcissistic personality disorder, relied only on the information fed by petitioner. This was admitted by petitioner in his petition for review on certiorari and memorandum filed in this Court. In both instances, petitioner reasoned out that the personal examination of respondent was impossible as her whereabouts were unknown despite diligent efforts on his part to find her. Consequently, Dr. Tayag's report was really hearsay evidence since she had no personal knowledge of the alleged facts she was testifying on. Her testimony should have thus been dismissed for being unscientific and unreliable.15 Furthermore, as already stated, the report also failed to identify the root cause of respondent's narcissistic personality disorder and to prove that it existed at the inception of the marriage. It merely concluded that: This extremely egocentric attitude manifest a person suffering Narcissistic Personality Disorder that is considered to be severe, incurable and deeply rooted with her functioning. Thus, making herself psychologically incapacitated so as to comply with the essential marital functions. Although there is no requirement that a party to be declared psychologically incapacitated should be personally examined by a physician or a psychologist (as a condition sine qua non), there is nevertheless still a need to prove the psychological incapacity through independent evidence adduced by the person alleging said disorder.16 In the case at bar, petitioner was able to establish that respondent was remiss in her duties as a wife and had become a happy-go-lucky woman who failed to attend to her husband's needs and who eventually abandoned him. However, the totality of her acts, as testified to by petitioner and his brother, was not tantamount to a psychological incapacity, as petitioner would have us believe. Habitual alcoholism, chain-smoking, failure or refusal to meet one's duties and responsibilities as a married person and eventual abandonment of a spouse do not suffice to nullify a marriage on the basis of psychological incapacity, if not shown to be due to some psychological (as opposed to physical) illness.17

The undeniable fact is that the marriage, according to petitioner's own evidence, was off to a good start. According to him, respondent used to be a sweet, loving and caring wife who took good care of him and their home. She even willingly consented to the difficult living arrangement of taking turns in going back and forth between the Philippines and Saudi Arabia just so they could be together. Perhaps it was this unusual arrangement which took a heavy toll on their relationship. They barely saw and spent time with each other. Respondent could have gotten used to petitioners absence. And although absence can indeed make the heart grow fonder, the opposite can just as well be true: out of sight, out of mind. The couple drifted apart and respondent obviously fell out of love with petitioner. Nevertheless, we agree with the CA that the change in respondent's feelings towards petitioner could hardly be described as a psychological illness. It was not enough that respondent, the party adverted to as psychologically incapacitated to comply with her marital obligations, had difficulty or was unwilling to perform the same. Proof of a natal or supervening disabling factor, an adverse integral element in respondent's personality structure that effectively incapacitated her from complying with her essential marital obligations, 18 had to be shown. This petitioner failed to do. Consequently, we are unconvinced that respondent's condition was rooted in some incapacitating or debilitating disorder. Even if we assume the correctness of petitioner's contention that the Molina guidelines are not set in stone, there is still no reason to disavow the same as the facts and circumstances in this case do not warrant a deviation therefrom. WHEREFORE, the petition is hereby DENIED. The March 20, 2006 decision and July 3, 2006 resolution of the Court of Appeals in CA-G.R. CV No. 66952 are AFFIRMED. No pronouncement as to costs. SO ORDERED. RENATO C. CORONA Associate Justice SECOND DIVISION G.R. No. 171042 June 30, 2008

REPUBLIC OF THE PHILIPPINES, petitioner, vs. LYNNETTE CABANTUG-BAGUIO, respondent. DECISION CARPIO MORALES, J.: From the Decision of the Court of Appeals which affirmed that of the Regional Trial Court of Cebu, Branch 24 nullifying the marriage of respondent, Lynnette Cabantug-Baguio (Lynnette), to Martini Dico Baguio (Martini), the Republic through the Office of the Solicitor General filed the present petition for review.

Lynnette and Martini contracted marriage on August 12, 1997. Less than three years later or on October 12, 2000, Lynnette filed before the Regional Trial Court (RTC) of Cebu City a complaint 1 for declaration of nullity of marriage, docketed as Civil Case No. CEB 25700, on the ground of Martinis psychological incapacity to comply with the essential marital duties and obligations under Articles 68-702 of the Family Code. Despite service of summons upon Martini, he never filed any responsive pleading to the complaint.3 No collusion was established between the parties. 4 Upon the authority of the Solicitor General, the provincial prosecutor of Cebu City appeared in the case under the formers supervision and control.5 From the deposition of Lynnette taken before Branch Clerk of Court Atty. Monalila S. Tecson on January 10, 2001,6 the following are gathered: Lynnette and Martini, a seaman working overseas, became pen pals in 1995. In 1996, the two met in person during Martinis vacation after the expiration of his contract on board an ocean-going vessel. On August 12, 1997, Martini, then 32, and Lynnette, then 34, contracted marriage, 7 following which they moved to the house of Lynnettes parents at 33-B La Guardia Extension, Lahug, Cebu City. Martini, however, stayed there only on weekends, and during weekdays he stayed with his parents in Looc, Lapu-lapu City. While Lynnette suggested that the two of them stay in the house of Martinis parents, Martini disagreed, claiming that there were many already living with his parents. Lynnette noticed that every time she conversed with Martini, he always mentioned his mother and his family, and she soon realized that he was a "mamas boy." And she noticed too that when she would call up Martini at his parents house and his mother was the one who answered the call, she would deny that he was around. In 1998, after Martini again returned following an almost 10-month contract overseas, 8 he stayed with Lynnette. When in 1999 Martini again disembarked, he stayed with his parents. On the insistence of his mother, Martinis monetary allotment was shared equally between her and Lynnette. Lynnette had since January 1999 not heard from Martini. And since April 1999, Lynnette stopped receiving her share of the allotment, drawing her to inquire from Martinis employer who informed her that he had already disembarked on even month. She soon found out that Martini was in Alabang, Muntinlupa. When Lynnette and Martini finally met in Cebu City, he told her that they are not compatible and should just part ways. The last time the couple talked was on October 14, 1999 when Martini was at the Ninoy Aquino International Airport (NAIA) about to depart for abroad. Since then, Martini never communicated with Lynnette. On investigation, Lynnette learned that Martini declared in his employment records that he was "single" and named his mother as principal allottee. 9 Hence, Lynnettes filing of the complaint for declaration of nullification of marriage.

Aside from her deposition,10 Lynnette presented her Certificate of Marriage,11 Martinis undated Seafarer Information Sheet,12 the letter of clinical psychologist Dr. Andres S. Gerong (Dr. Gerong) to Martini requesting for a personal interview,13 Dr. Gerongs testimony,14 and the Psychological Evaluation Report15 prepared by Dr. Gerong after his interview of Lynnette and her sister Dr. Rosemarie Sistoza.16 In the Psychological Evaluation Report, Dr. Gerong noted as follows: 1. The couples [sic] were married on August 12, 1997 in Danao City, Cebu[;] 2. After the wedding the couple stayed at the petitioners residence, but the defendant would always go home to his parents in Looc, Lapu-lapu City; 3. Defendant did not show any directions to establish their home, [is] happy-go-lucky, and would just see the plaintiff for his physical and sexual needs; 4. Plaintiff felt being used, exploited, uncared for, taken for granted, abandoned; 5. Defendants parents appeared to control the son to the extent of meddling [with] the finances coming from the income as a seaman; 6. Defendant never showed respect for his parents-in-law; 7. Parents of the defendant insisted [on] a co-allot[ment without] any protestations from the plaintiff who has been generous all the time; 8. Defendant remained immature, could not stand by his wife and would still depend upon the decisions of his parents and without any personal directions as to what to do with his family; 9. Strictly speaking, the couple never really live[d] together as husband and wife like any ordinary couple17(underscoring supplied), and concluded that Defendant shows immature personality disorder, dependency patterns, and self-centered motives. Th[ese are] the core personality dysfunctions noted and have been exaggeratedly expressed which are detrimental to the familial well-being; The situation is serious, grave, existing already during the adolescent period, and incurable because personality and character are stable whether or not it is normal and adaptive. xxxx The defendant is psychologically incapacitated to comply with the essential obligations in marriage and family.18 (Underscoring supplied) Expounding on his findings, Dr. Gerong testified, thus:

ATTY. SINGCO: (To witness) Q: In gist, what were your findings as to the psychological capacity or incapacity of defendant Martini Dico Baguio? A: x x x [T]o sum it up, the synopsis of the findings, the defendant husband appeared to be [a] dependent person to his family and unable to [sever . . .] the connection being a married man and to establish a domicile for his family and to support his family. xxxx ATTY. SINGCO: (To witness) Q: Dr. Gerong, how grave or serious is the psychological incapacity of the defendant? A: Being, I would say in our popular parlance, "mamas boy" as alleged, that will endanger the integrity of the marriage because instead of establishing a permanent conjugal relationship with the wife the husband-defendant would remain dependent on his family. xxxx ATTY. SINGCO: (To witness) Q: Okay, in terms of the chances that this incapacity will be cured, what are the chances, if any? A: As to curability, since I am using a clinical term ["]personality or character disorder or dysfunction["] and as I have said many times that the personality is stable and pervasive over time. And if it is established as early as adolescent period and up to the present it has remained persistent thru the years and therefore its a permanent trait of the defendanthusband, therefore its incurable.19 (Emphasis and underscoring supplied) By Decision20 of January 2, 2002, Branch 24 of the Cebu City RTC found Martini psychologically incapacitated to comply with the essential marital obligations of marriage, and that the same incapacity existed "at the time the couple exchanged their marriage vows." The Solicitor General, via appeal,21 challenged before the Court of Appeals the trial courts decision . . . DECLARING THE PARTIES MARRIAGE NULL AND VOID, DEFENDANTS MARTINI DICO BAGUIOS PSYCHOLOGICAL INCAPACITY NOT HAVING BEEN PROVEN TO EXIST.22 By Decision23 of January 13, 2005, the Court of Appeals affirmed the trial courts decision. Addressing the Solicitor Generals argument that Dr. Gerongs testimony failed to establish the cause of Martinis psychological incapacity and to show that it existed at the inception of the marriage,24 the Court of Appeals held: x x x [I]n contradiction of the Republics contention and its supporting above-cited doctrine, this Court cites the more recent jurisprudence laid down in the case of Marcos v. Marcos,25 in which the High Tribunal has foregone with the requirement that the defendant should be

examined by a physician or psychologist as aconditio sine qua non for declaration of nullity of marriage. It held thus: "The x x x guidelines do not require that a physician examine the person to be declared psychologically incapacitated x x x [w]hat is important is the presence of evidence that can adequately establish the partys psychological condition, [f]or indeed, if the totality of evidence presented is enough to sustain a finding of psychological incapacity, then actual medical examination for the person concerned need not be resorted to."26 Therefore, the oral deposition [of Lynette] and the Psychological Evaluation Report by Dr. Andres S. Gerong, Ph.D. as Clinical Psychologist declaring the defendant psychologically incapacitated to comply with the essential obligations in marriage and family life was sufficient for US to believe that undeniably the defendant suffers psychological incapacity.27 (Italics in the original; emphasis and underscoring supplied) On the Solicitor Generals contention that Martinis abandonment of Lynnette is a ground for legal separation and not for declaration of nullity of marriage, 28 and that Martinis alleged personality traits are not of the nature contemplated by Article 36 of the Family Code, 29 the Court of Appeals declared: x x x WE note that it was not the abandonment which was the ground relied upon by the plaintiff-appellee but the defendants being a mamas boy.30 xxxx Being a Mamas Boy, his uncaring attitude towards his wife, declaring himself single and naming his mother as the beneficiary, spending more time with his family and less with his wife and ultimately, abandoning her manifested defendants psychological incapacity. These, to sum it all, to US are manifestations of severe psychological disorder rather than a mere obstinate refusal to comply with his marital obligations. 31 (Emphasis and underscoring supplied) The Solicitor Generals Motion for Reconsideration 32 having been denied by the Court of Appeals,33 the present petition34 was filed, faulting the appellate court to have gravely erred: I . . . IN RULING THAT THE PSYCHOLOGICAL EVALUATION AND TESTIMONY OF DR. ANDRES GERONG THAT DEFENDANT IS PSYCHOLOGICALLY INCAPACITATED HAVE LEGAL BASIS. II . . . IN FAILING TO TAKE INTO CONSIDERATION THAT ABANDONMENT BY ONES SPOUSE IS ONLY A GROUND FOR LEGAL SEPARATION AND NOT FOR THE DECLARATION OF NULLITY OF MARRIAGE. III . . . IN RULING THAT DEFENDANTS BEING A MAMAS BOY IS A MANIFESTATION OF A PSYCHOLOGICAL DISORDER.35 (Italics in the original)

The Solicitor Generals arguments persuade. The Solicitor General argued as follows: Dr. Gerong merely testified that defendants alleged psychological incapacity (being a mamas boy) began in his adolescent stage and has remained persistent through the years (p. 20, Brief). Dr. Gerong did not detail this finding. He made no effort to look into and testify on defendants past life, attitudes, habits and character to explain defendants alleged psychological incapacity as required by this Honorable Court in the case of Republic vs. Court of Appeals and Molina, 268 SCRA 198 (1998). Again, while it is true that Dr. Gerong testified that defendants alleged defect is incurable, he failed to explain why it is clinically or medically permanent. His only basis for saying that it is incurable is his finding that defendant has been a mamas boy since his adolescence (p. 7, TSN, June 19, 2001). During the trial, Dr. Gerong also failed to explain in detail why the defendants alleged psychological incapacity is grave and to discuss what kind of disorder defendant is suffering from.36 (Emphasis in the original; italics and underscoring supplied) On the doctors findings in his Report, the Solicitor General argued: The said findings reveal nothing in defendants past life and acts that shows a behavior pattern that would prove his alleged psychological incapacity. Dr. Gerongs finding that defendants parents are too controlling because they were made co-allottees of the remittances sent by their son does not prove the alleged psychological incapacity of defendant. The report likewise failed to explain the gravity of the alleged psychological incapacity of defendant and state whether or not it incapacitates defendant from carrying out the normal and ordinary duties of marriage and family. There is likewise no explanation by Dr. Gerong why he found defendants incapacity to be incurable. This Honorable Court has held that such illness must be shown to be grave enough to bring about the disability of the party to assume the essential obligation of the marriage. Such incapacity must also be shown to be medically or clinically permanent or incurable and grave [ Republic vs. Court of Appeals and Molina, supra]. These Dr. Gerong failed to do. Even when the rules have been relaxed and the personal examination of the defendant by a psychiatrist or psychologist is no longer mandatory for the declaration of nullity of marriage under Article 36 of the Family Code, the totality of evidence presented during trial by private respondent must stillprove the gravity, juridical antecedence, and incurability of the alleged psychological incapacity(Marcos v. Marcos, 343 SCRA 755 [2000]; Santos v. Court of Appeals, 240 SCRA 20 [1995]). (Emphasis in the original; italics and underscoring supplied) In fine, the Solicitor General concluded that there was no showing that Martinis alleged personality traits are of the nature contemplated by Article 36 of the Family Code and the rulings of this Court in the cited cases,37 and that Martinis abandonment of Lynnette constitutes only a ground for legal separation but not for declaration of nullity of marriage. 38 Article 36 of the Family Code on which Lynnette anchors her complaint provides that "[a] marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization."

Article 36 must be read in conjunction with the other articles in the Family Code, specifically Articles 35, 37, 38, and 41 which provide different grounds to render a marriage void ab initio, as well as Article 45 which dwell on voidable marriages, and Article 55 on legal separation. 39 Care must be observed so that these various circumstances are not to be applied indiscriminately as if the law were indifferent on the matter. 40 And Article 36 should not be confused with a divorce law that cuts the marital bond at the time the causes therefor manifest themselves, nor with legal separation in which the grounds need not be rooted in psychological incapacity but on physical violence, moral pressure, moral corruption, civil interdiction, drug addiction, habitual alcoholism, sexual infidelity, abandonment, and the like. 41 "Psychological incapacity" has been elucidated on as follows: The term "psychological incapacity" to be a ground for the nullity of marriage under Article 36 of the Family Code, refers to a serious psychological illness afflicting a party even before the celebration of the marriage. It is a malady so grave and so permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is about to assume. As all people may have certain quirks and idiosyncrasies, or isolated characteristics associated with certain personality disorders, there is hardly a doubt that the intendment of the law has been to confine the meaning of "psychological incapacity" to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. x x x [T]he root cause must be identified as a psychological illness, and its incapacitating nature must be fully explained x x x.42 (Emphasis and underscoring supplied) The mere showing of "irreconcilable differences" and "conflicting personalities" does not constitute psychological incapacity.43 Nor does failure of the parties to meet their responsibilities and duties as married persons. It is essential that the parties to a marriage must be shown to be insensitive to or incapable of meeting their duties and responsibilities due to some psychological (not physical) illness, 44 which insensitivity or incapacity should have been existing at the time of the celebration of the marriage even if it becomes manifest only after its solemnization. 45 In fine, for psychological incapacity to render a marriage void ab initio, it must be characterized by (a) Gravity It must be grave and serious such that the party would be incapable of carrying out the ordinary duties required in a marriage; (b) Juridical Antecedence It must be rooted in the history of the party antedating the marriage, although the overt manifestations may emerge only after the marriage; and (c) Incurability It must be incurable, or even if it were otherwise, the cure would be beyond the means of the party involved. 46 Dr. Gerong found that Martinis "personality disorders" including his being a "mamas boy" are "serious, grave, existing already during the adolescent period and incurable" and concluded that Martini "appeared" to be dependent upon his family and unable "to establish a domicile for his family and to support his family."

The doctors findings and conclusion were derived from his interview of Lynnette and her sister and Lynnettes deposition. From Lynnettes deposition, however, it is gathered that Martinis failure to establish a common life with her stems from his refusal, not incapacity, to do so. It is downright incapacity, not refusal or neglect or difficulty, much less ill will, 47 which renders a marriage void on the ground of psychological incapacity. In another vein, how the doctor arrived at the conclusion, after interviewing Lynnette and considering her deposition, that any such personality disorders of Martini have been existing since Martinis adolescent years has not been explained. It bears recalling that Martini and Lynnette became pen pals in 1995 and contracted marriage in 1997 when Martini was already 32 years old, far removed from adolescent years. Dr. Gerongs citing of Martinis appointment of his mother as a beneficiary and his representing himself as single in his Seafarer Information Sheet, without more, as indications of Martinis dependence on his family amounting to his incapacity to fulfill his duties as a married man does not logically follow, especially given that the Seafarers Information Sheet is not even dated 48 and, therefore, there is no certainty that it was prepared after Martini contracted marriage. While the examination by a physician of a person in order to declare him/her psychological incapacitated is not required, the root cause thereof must be "medically or clinically identified." There must thus be evidence to adequately establish the same. There is none such in the case at bar, however. The Constitution sets out a policy of protecting and strengthening the family as the basic social institution and marriage as the foundation of the family. 49 Marriage, an inviolable institution protected by the State,50 cannot be dissolved at the whim of the parties.51 In petitions for the declaration of nullity of marriage, the burden of proof to show the nullity of marriage lies on the plaintiff. 52 Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity.53 As reflected above, Lynnette failed to discharge the onus probandi. While the Court sympathizes with her predicament, its first and foremost duty is to apply the law. 54 Dura lex sed lex. Lynnettes marriage with Martini may have failed then, but it cannot be declared void ab initio on the ground of psychological incapacity in light of the insufficient evidence presented. 55 WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals dated January 13, 2005 isREVERSED and SET ASIDE. Civil Case No. CEB 25700 of the Regional Trial Court of Cebu, Branch 24, isDISMISSED. SO ORDERED. CONCHITA CARPIO MORALES Associate Justice THIRD DIVISION G.R. No. 167523 June 27, 2008

NILDA V. NAVALES, petitioner, vs. REYNALDO NAVALES, respondent.*

DECISION AUSTRIA-MARTINEZ, J.: Before the Court is a Petition for Review on Certiorari assailing the Decision1 of the Court of Appeals (CA) in CA-G.R. CV No. 76624 promulgated on February 16, 2005 which affirmed the Judgment 2 of the Regional Trial Court (RTC) Branch 59 of Toledo City, in Civil Case No. T-799 dated January 2, 2002, declaring the nullity of the marriage of Reynaldo and Nilda Navales on the ground of psychological incapacity. The facts are as follows: Reynaldo Navales (Reynaldo) and Nilda Navales (Nilda) met in 1986 in a local bar where Nilda worked as a waitress. The two became lovers and Nilda quit her job, managed a boarding house owned by her uncle and studied Health Aide financed by Reynaldo. Upon learning that Nilda's uncle was prodding her to marry an American, Reynaldo, not wanting to lose her, asked her to marry him. This, despite his knowledge that Nilda was writing her penpals and was asking money from them and that she had an illegitimate son by a man whose identity she did not reveal to him. 3 The two got married on December 29, 1988, before the Municipal Trial Court Judge of San Fernando, Cebu. 4 Reynaldo claims that during the first year of their marriage, their relationship went well. Problems arose, however, when Nilda started selling RTWs and cosmetics, since she could no longer take care of him and attend to household chores.5 Things worsened when she started working as an aerobics instructor at the YMCA, where, according to Reynaldo, Nilda's flirtatiousness and promiscuity recurred. She wore tight-fitting outfits, allowed male clients to touch her body, and introduced herself as single. Reynaldo received phone calls from different men looking for Nilda. There was also a time when Nilda chose to ride with another man instead of Reynaldo; and another when Nilda went home late, riding in the car of the man who kissed her. Reynaldo also claims that Nilda refused to have a child with him, as it would destroy her figure. 6 On June 18, 1992, Reynaldo left Nilda and never reconciled with her again.7 On August 30, 1999, Reynaldo filed a Petition for Declaration of Absolute Nullity of Marriage and Damages before the RTC, Toledo City, Cebu, docketed as Civil Case No. T-799 claiming that his marriage with Nilda did not cure Nilda's flirtatiousness and sexual promiscuity, and that her behavior indicates her lack of understanding and appreciation of the meaning of marriage, rendering the same void under Article 36 of the Family Code.8 Reynaldo testified in support of his petition and presented telephone directories showing that Nilda used her maiden name "Bacon" instead of "Navales." 9 Reynaldo also presented Josefino Ramos, who testified that he was with Reynaldo when Reynaldo first met Nilda at the bar called "Appetizer," and that he (Ramos) himself was attracted to Nilda since she was sexy, beautiful, and jolly to talk with.10 Reynaldo also presented Violeta Abales, his cousin, who testified that she was a vendor at the YMCA where Nilda worked and was known by her maiden name; that she knows Nilda is sexy and wears tight fitting clothes; that her companions are mostly males and she flirts with them; and that there was one time that Reynaldo fetched Nilda at YMCA but Nilda went with another man, which angered Reynaldo.11 Finally, Reynaldo presented Leticia Vatanagul, a Clinical Psychologist and Social Worker who drafted a Psychological Assessment of Marriage dated March 28, 2001. 12 In said Assessment, Vatanagul concluded that Nilda is a nymphomaniac, who has a borderline personality, a social deviant, an alcoholic, and suffering from anti-social personality disorder, among others, which

illnesses are incurable and are the causes of Nildas psychological incapacity to perform her marital role as wife to Reynaldo.13 Nilda, for her part, claims that Reynaldo knew that she had a child before she met him, yet Reynaldo continued courting her; thus, their eventual marriage. 14 She claims that it was actually Reynaldo who was linked with several women, who went home very late, kept his earnings for himself, and subjected her to physical harm whenever she called his attention to his vices. She worked at the YMCA to cope with the needs of life, and she taught only female students. Reynaldo abandoned her for other women, the latest of whom was Liberty Lim whom she charged, together with Reynaldo, with concubinage.15 Nilda presented a certification from the YMCA dated October 17, 2001 stating that she was an aerobics instructress for a program that was exclusively for ladies, 16 as well as a statement of accounts from PLDT showing that she used her married name, Nilda B. Navales. 17 On January 2, 2002, the RTC rendered its Decision disposing as follows: WHEREFORE, premises considered, judgment is hereby rendered in the above-entitled case declaring defendant Nilda B. Navales as psychologically incapacitated to fulfill her marital obligations with plaintiff Reynaldo V. Navales and further declaring their marriage contracted on December 29, 1988, before the Municipal Judge of the Municipal Trial Court of San Fernando, Cebu, as null and void.18 The RTC held that: x x x From the testimonies and evidences x x x adduced, it was clearly established that the defendant had no full understanding of [the] effects of marriage and had no appreciation of [the] consequences of marriage as shown by her x x x act of concealing her marital status by using her maiden name "Nilda T. Bacon", augmenting her pretense of being still single through the telephone directories; by her refusal to accompany with [sic] her husband despite of the latter's insistence, but rather opted to ride other man's jeep, whose name her husband did not even know; by her act of allowing a man other than her husband to touch her legs even in her husband's presence; by allowing another man to kiss her even in the full view of her husband; by preferring to loss [sic] her husband rather than losing her job as aerobic instructress and on top of all, by refusing to bear a child fathered by her husband because it will destroy her figure, is a clear indication of the herein defendant's psychological incapacity.19 Nilda filed a Motion for Reconsideration, which the RTC denied on April 10, 2002. 20 The CA dismissed Nildas appeal, ruling that the RTC correctly held that Nilda concealed her marital status, as shown by the telephone listings in which Nilda used her maiden name; that nymphomania, the condition which the expert said Nilda was afflicted with, was a ground for psychological incapacity; and that the RTC correctly gave weight to the four pieces of testimonial evidence presented by Reynaldo vis-a-vis the lone testimony of Nilda.21 Nilda now comes before the Court alleging that: I The petitioner is not psychologically incapacitated to comply [with] her marital obligations as a wife.

II Psychological incapacity, if ever existing, of the wife is NOT PERMAMENT or INCURABLE and was NEVER EXISTING AT THE TIME OF THE CELEBRATION OF MARRIAGE. III The petitioner is not a nymphomaniac. IV The effort of herein petitioner into the case shows that she is consciously and nobly preserving and continue to believe that marriage is inviolable rather [sic]. V The guidelines of Molina case in the application of Article 36 of the New Family Code has not been strictly complied with.22 Nilda claims that she did not fail in her duty to observe mutual love, respect and fidelity; that she never had any illicit relationship with any man; that no case for inchastity was initiated by Reynaldo against her, and that it was actually Reynaldo who had a pending case for concubinage. 23 She questions the lower courts finding that she is a nymphomaniac, since she was never interviewed by the expert witness to verify the truth of Reynaldo's allegations. There is also not a single evidence to show that she had sexual intercourse with a man other than her husband while they were still living together.24 Nilda also avers that the guidelines in Republic of the Phillippines. v. Molina 25 were not complied with. The RTC resolved the doubt on her motive for using her maiden name in the telephone directory in favor of the dissolution of the marriage instead of its preservation. The expert opinion was given weight, even though it was baseless to establish that petitioner had psychological incapacity to comply with her marital obligations as a wife; and that, assuming that such incapacity existed, it was already existing at the time of the marriage; and that such incapacity was incurable and grave enough to bring about the disability of the wife to assume the essential obligations of marriage.26 Reynaldo, for his part, argues that while the petition is captioned as one under Rule 45, it is actually a petition forcertiorari under Rule 65, since it impleads the CA as respondent and alleges that the CA acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of or excess of jurisdiction.27 Reynaldo also claims that the issues raised by Nilda necessarily require a review of the factual findings of the lower courts, which matters have already been decided and passed upon, and factual findings of the courts a quo are binding on this Court; that only questions of law may be raised before this Court; that the RTC, in reaching its decision, complied with the requirements of Molina; that the Solicitor General was represented by the City Prosecutor of Toledo City; and that Reynaldo discharged the burden of proof to show the nullity of his marriage to Nilda. Reynaldo further averred that he testified on his behalf; presented corroborating witnesses, one of whom is an expert clinical psychologist, as well as documentary evidence in support of his cause of action; that Molina did not require that the psychologist examine the person to be declared psychologically incapacitated; that Nilda did not rebut the psychologist's findings and did not present

her own expert to disprove the findings of Vatanagul; that Nilda's psychological incapacity, caused by nymphomania, was duly proven to have been existing prior to and at the time of her marriage to Reynaldo and to have become manifest during her marriage, based on the testimonies of Reynaldo and his witnesses; and that such incapacity was proven to be incurable, as shown by the report of Vatanagul.28 Nilda filed a Reply, and both parties filed their respective memoranda reiterating their arguments. 29 Simply stated, the issue posed before the Court is whether the marriage between Reynaldo and Nilda is null and void on the ground of Nilda's psychological incapacity. The answer, contrary to the findings of the RTC and the CA, is in the negative. Preliminarily, let it be stressed that it is the policy of our Constitution to protect and strengthen the family as the basic autonomous social institution, and marriage as the foundation of the family. 30 The Constitution decrees marriage as legally inviolable and protects it from dissolution at the whim of the parties.31 The Family Code under Article 4832 therefore requires courts to order the prosecuting attorney or fiscal assigned, in cases of annulment or declaration of absolute nullity of marriage, to appear on behalf of the State in order to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed. Indeed, only the active participation of the Public Prosecutor or the Office of the Solicitor General (OSG) will ensure that the interest of the State is represented and protected in proceedings for annulment and declarations of nullity of marriage by preventing collusion between the parties, or the fabrication or suppression of evidence. 33 While the guidelines in Molina requiring the OSG to issue a certification on whether or not it is agreeing or objecting to the petition for annulment has been dispensed with by A.M. No. 02-11-10SC or the Rule on the Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages,34 still, Article 48 mandates the appearance and active participation of the State through the fiscal or the prosecuting attorney.35 In this case, contrary to the assertion of the RTC that the OSG actively participated in the case through the Office of the City Prosecutor, records show that the State's participation consists only of the Report dated November 29, 1999 by Assistant City Prosecutor Gabriel L. Trocio, Jr. stating that no collusion exists between the parties; 36 the OSG's Opposition to the petition for declaration of nullity of marriage dated June 2, 2000; 37 and the cross-examination conducted by Prosecutor Trocio on Reynaldo38 and his witness Abales.39 There were no other pleadings, motions, or position papers filed by the Public Prosecutor or OSG; and no controverting evidence presented by them before the judgment was rendered. Considering the interest sought to be protected by the aforestated rules, the Court finds the State's participation in this case to be wanting. 40 But even on the merits, the Court finds that the totality of evidence presented by Reynaldo, contrary to its appreciation by the RTC and the CA, is insufficient to sustain a finding that Nilda is psychologically incapacitated. Generally, factual findings of trial courts, when affirmed by the CA, are binding on this Court. Such principle however is not absolute, such as when the findings of the appellate court go beyond the issues of the case; run contrary to the admissions of the parties; fail to notice certain relevant facts which, if properly considered, will justify a different conclusion; or when there is a misappreciation of facts.41 Such is the case at bar. Psychological incapacity, in order to be a ground for the nullity of marriage under Article 36 42 of the Family Code, refers to a serious psychological illness afflicting a party even before the celebration of

marriage. It is a malady that is so grave and permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is about to assume. As all people may have certain quirks and idiosyncrasies, or isolated traits associated with certain personality disorders, there is hardly any doubt that the intention of the law has been to confine the meaning of psychological incapacity to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. 43 In Santos v. Court of Appeals,44 the Court held that psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability. 45 In Republic of the Philippines v. Molina,46 the Court further set forth guidelines in the interpretation and application of Article 36 of the Family Code, thus: 1. The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. x x x 2. The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological --- not physical, although its manifestation and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or psychically ill to such an extent that the person could not have known that obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principleejusdem generis, nevertheless such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists. 3. The incapacity must be proven to be existing at "the time of the celebration" of the marriage. The evidence must show that the illness was existing when the parties exchanged their "I do's". The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto. 4. Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job. x x x. 5. Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, "mild characteriological peculiarities, mood changes, occasional emotional outbursts" cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage. 6. The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision.

7. Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. x x x.47 In this case, Reynaldo and his witnesses sought to establish that Nilda was a flirt before the marriage, which flirtatiousness recurred when she started working as an aerobics instructress. The instances alleged by Reynaldo,i.e., the occasion when Nilda chose to ride home with another man instead of him, that he saw Nilda being kissed by another man while in a car, and that Nilda allowed other men to touch her body, if true, would understandably hurt and embarrass him. Still, these acts by themselves are insufficient to establish a psychological or mental defect that is serious, incurable or grave as contemplated by Article 36 of the Family Code. Article 36 contemplates downright incapacity or inability to take cognizance of and to assume basic marital obligations.48 Mere "difficulty," "refusal" or "neglect" in the performance of marital obligations or "ill will" on the part of the spouse is different from "incapacity" rooted on some debilitating psychological condition or illness.49 Indeed, irreconcilable differences, sexual infidelity or perversion, emotional immaturity and irresponsibility, and the like, do not by themselves warrant a finding of psychological incapacity under Article 36, as the same may only be due to a person's refusal or unwillingness to assume the essential obligations of marriage and not due to some psychological illness that is contemplated by said rule. 50 As admitted by Reynaldo, his marriage with Nilda was not all that bad; in fact, it went well in the first year of their marriage. As in other cases, an admission of a good and harmonious relationship during the early part of the marriage weakens the assertion of psychological defect existing at the time of the celebration of the marriage which deprived the party of the ability to assume the essential duties of marriage and its concomitant responsibilities.51 In determining the import of "psychological incapacity" under Article 36, the same must be read in conjunction with, although to be taken as distinct from, Articles 35, 52 37,53 3854 and 4155of the Family Code that would likewise, but for different reasons, render the marriage void ab initio; or Article 45 that would make the marriage merely voidable; or Article 55 that could justify a petition for legal separation.56 These various circumstances are not applied so indiscriminately as if the law were indifferent on the matter.57 Indeed, Article 36 should not be equated with legal separation, in which the grounds need not be rooted in psychological incapacity but on physical violence, moral pressure, moral corruption, civil interdiction, drug addiction, habitual alcoholism, sexual infidelity, abandonment and the like.58 Reynaldo presented telephone directories in which Nilda used her maiden name "Bacon" to prove that Nilda represented herself as single. As noted by the CA, however, the telephone listings presented by Reynaldo were for the years 1993 to 1995, 59 after Reynaldo admittedly left Nilda on June 18, 1992. Apart from Reynaldo and Abalales's testimony, therefore, Reynaldo has no proof that Nilda represented herself as single while they were still living together. The Court cannot agree with the RTC, therefore, that said telephone listings show that Nilda represented herself to be single, which in turn manifests her lack of understanding of the consequences of marriage. Reynaldo also presented Clinical Psychologist Vatanagul to bolster his claim that Nilda is psychologically incapacitated. While it is true that the Court relies heavily on psychological experts for its understanding of the human personality,60 and that there is no requirement that the defendant spouse be personally examined by a physician or psychologist before the nullity of marriage based on psychological incapacity may be declared, 61 still, the root cause of the psychological incapacity must be identified as a psychological illness, its incapacitating nature fully explained, 62 and said incapacity established by the totality of the evidence presented during trial. 63

The Court finds that the psychological report presented in this case is insufficient to establish Nilda's psychological incapacity. In her report, Vatanagul concluded that Nilda is a nymphomaniac, an emotionally immature individual, has a borderline personality, has strong sexual urges which are incurable, has complete denial of her actual role as a wife, has a very weak conscience or superego, emotionally immature, a social deviant, not a good wife as seen in her infidelity on several occasions, an alcoholic, suffers from anti-social personality disorder, fails to conform to social norms, deceitful, impulsive, irritable and aggresive, irresponsible and vain. 64 She further defined "nymphomia" as a psychiatric disorder that involves a disturbance in motor behavior as shown by her sexual relationship with various men other than her husband. 65 The report failed to specify, however, the names of the men Nilda had sexual relationship with or the circumstances surrounding the same. As pointed out by Nilda, there is not even a single proof that she was ever involved in an illicit relationship with a man other than her husband. Vatanagul claims, during her testimony, that in coming out with the report, she interviewed not only Reynaldo but also Jojo Caballes, Dorothy and Lesley who were Reynaldo's sister-in-law and sister, respectively, a certain Marvin and a certain Susan.66 Vatanagul however, did not specify the identities of these persons, which information were supplied by whom, and how they came upon their respective informations. Indeed, the conclusions drawn by the report are vague, sweeping and lack sufficient factual bases. As the report lacked specificity, it failed to show the root cause of Nilda's psychological incapacity; and failed to demonstrate that there was a "natal or supervening disabling factor" or an "adverse integral element" in Nilda's character that effectively incapacitated her from accepting, and thereby complying with, the essential marital obligations, and that her psychological or mental malady existed even before the marriage. 67 Hence, the Court cannot give weight to said assessment. The standards used by the Court in assessing the sufficiency of psychological reports may be deemed very strict, but that is only proper in view of the principle that any doubt should be resolved in favor of the validity of the marriage and the indissolubility of the marital vinculum. 68 Reynaldo also claims that Nilda does not want to get pregnant which allegation was upheld by the trial court. A review of the records shows, however, that apart from the testimony of Reynaldo, no other proof was presented to support such claim. Mere allegation and nothing more is insufficient to support such proposition. As petitioner before the trial court, it devolves upon Reynaldo to discharge the burden of establishing the grounds that would justify the nullification of the marriage. 69 While Reynaldo and Nilda's marriage failed and appears to be without hope of reconciliation, the remedy, however, is not always to have it declared void ab initio on the ground of psychological incapacity. A marriage, no matter how unsatisfactory, is not a null and void marriage. 70 And this Court, even as the highest one, can only apply the letter and spirit of the law, no matter how harsh it may be.71 WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals in CA-G.R. CV No. 76624 promulgated on February 16, 2005 and the Decision dated January 2, 2002 of the Regional Trial Court, Branch 59 of Toledo City, in Civil Case No. T-799 are REVERSED and SET ASIDE. The petition for declaration of absolute nullity of marriage and damages, docketed as Civil Case No. T-799, is DISMISSED. Costs against respondent. SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

THIRD DIVISION

G.R. No. 104818 September 17, 1993 ROBERTO DOMINGO, petitioner, vs. COURT OF APPEALS and DELIA SOLEDAD AVERA represented by her Attorney-in-Fact MOISES R. AVERA,respondents. Jose P.O. Aliling IV for petitioner. De Guzman, Meneses & Associates for private respondent.

ROMERO, J.: The instant petition seeks the reversal of respondent court's ruling finding no grave abuse of discretion in the lower court's order denying petitioner's motion to dismiss the petition for declaration of nullity of marriage and separation of property. On May 29, 1991, private respondent Delia Soledad A. Domingo filed a petition before the Regional Trial Court of Pasig entitled "Declaration of Nullity of Marriage and Separation of Property" against petitioner Roberto Domingo. The petition which was docketed as Special Proceedings No. 1989-J alleged among others that: they were married on November 29, 1976 at the YMCA Youth Center Bldg., as evidenced by a Marriage Contract Registry No. 1277K-76 with Marriage License No. 4999036 issued at Carmona, Cavite; unknown to her, he had a previous marriage with one Emerlina dela Paz on April 25, 1969 which marriage is valid and still existing; she came to know of the prior marriage only sometime in 1983 when Emerlina dela Paz sued them for bigamy; from January 23 1979 up to the present, she has been working in Saudi Arabia and she used to come to the Philippines only when she would avail of the one-month annual vacation leave granted by her foreign employer since 1983 up to the present, he has been unemployed and completely dependent upon her for support and subsistence; out of her personal earnings, she purchased real and personal properties with a total amount of approximately P350,000.00, which are under the possession and administration of Roberto; sometime in June 1989, while on her one-month vacation, she discovered that he was cohabiting with another woman; she further discovered that he had been disposing of some of her properties without her knowledge or consent; she confronted him about this and thereafter appointed her brother Moises R. Avera as her attorney-in-fact to take care 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 not authorized to administer and possess the same on account of the nullity of their marriage. The petition prayed that a temporary restraining order or a writ of preliminary injunction be issued enjoining Roberto from exercising any act of

administration and ownership over said properties; 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 acquired at the time of their void marriage and such properties be placed under the proper management and administration of the attorney-in-fact. Petitioner filed a Motion to Dismiss on the ground that the petition stated no cause of action. The marriage being void ab initio, the petition for the declaration of its nullity is, therefore, superfluous and unnecessary. It added that private respondent has no property which is in his possession. On August 20, 1991, Judge Maria Alicia M. Austria issued an Order denying the motion to dismiss for lack of merit. She explained: 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. Court of Appeals, 145 SCRA 229) and no judicial decree is necessary to establish the invalidity of a void marriage (citing the cases of People v. 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 respondent with herein petitioner after a first marriage with another woman is illegal and void. However, as to whether or not the second marriage should first be judicially declared a nullity is not an issue in said case. In the case of Vda. de Consuegra v. GSIS, the Supreme Court ruled in explicit terms, thus: And with respect to the right of the second wife, this Court observed that although the second marriage can be presumed to be void ab initio as it was celebrated while the first marriage was still subsisting, still there is need for judicial declaration of its nullity. (37 SCRA 316, 326) The above ruling which is of later vintage deviated from the previous rulings of the Supreme Court in the aforecited cases of Aragon and Mendoza.
Finally, the contention of respondent movant that petitioner has no property in his possession is an issue that may be determined only after trial on the merits. 1

A motion for reconsideration was filed stressing the erroneous application of Vda. de Consuegra v. GSIS 2 and the absence of justiciable controversy as to the nullity of the marriage. On September 11, 1991, Judge Austria denied the motion for reconsideration and gave petitioner fifteen (15) days from receipt within which to file his answer. 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 grave abuse of discretion amounting to lack of jurisdiction in denying the motion to dismiss. On February 7, 1992, the Court of Appeals 3 dismissed the petition. It explained that the case of Yap v. CA 4 cited by petitioner and that of Consuegra v. GSIS relied upon by the lower court do not have relevance in the case at bar, there being no identity of facts because these cases dealt with the successional rights of the second wife while the instant case prays for separation of property corollary with the declaration of nullity of marriage. It observed that the separation and subsequent distribution of the properties acquired during the union can be had only upon proper determination of

the status of the marital relationship between said parties, whether or not the validity of the first marriage is denied by petitioner. Furthermore, in order to avoid duplication and multiplicity of suits, the declaration of nullity of marriage may be invoked in this proceeding together with the partition and distribution of the properties involved. Citing Articles 48, 50 and 52 of the Family Code, it held that private respondent's prayer for declaration of absolute nullity of their marriage may be raised together with other incidents of their marriage such as the separation of their properties. Lastly, it noted that since the Court has jurisdiction, the alleged error in refusing to grant the motion to dismiss is merely one of law for which the remedy ordinarily would have been to file an answer, proceed with the trial and in case of an adverse decision, reiterate the issue on appeal. The motion for reconsideration was subsequently denied for lack of merit. 5 Hence, this petition. The two basic issues confronting the Court in the instant case are the following. First, whether or not a petition for judicial declaration of a void marriage is necessary. If in the affirmative, whether the same should be filed only for purposes of remarriage. Second, whether or not SP No. 1989-J is the proper remedy of private respondent to recover certain real and personal properties allegedly belonging to her exclusively. Petitioner, invoking the ruling in People v. Aragon 6 and People v. Mendoza, 7 contends that SP. No. 1989-J for Declaration of Nullity of Marriage and Separation of Property filed by private respondent must be dismissed for being unnecessary and superfluous. Furthermore, under his own interpretation of Article 40 of the Family Code, he submits that a petition for declaration of absolute nullity of marriage is required only for purposes of remarriage. Since the petition in SP No. 1989-J contains no allegation of private respondent's intention to remarry, said petition should therefore, be dismissed. On the other hand, private respondent insists on the necessity of a judicial declaration of the nullity of their marriage, not for purposes of remarriage, but in order to provide a basis for the separation and distribution of the properties acquired during coverture. There is no question that the marriage of petitioner and private respondent celebrated while the former's previous marriage with one Emerlina de la Paz was still subsisting, is bigamous. As such, it is from the beginning. 8Petitioner himself does not dispute the absolute nullity of their marriage. 9 The cases of People v. Aragon and People v. Mendoza relied upon by petitioner are cases where the Court had earlier ruled that no judicial decree is necessary to establish the invalidity of a void, bigamous marriage. It is noteworthy to observe that Justice Alex Reyes, however, dissented on these occasions stating that:
Though the logician may say that where the former marriage was void 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

This dissenting opinion was adopted as the majority position in subsequent cases involving the same issue. Thus, in Gomez v. Lipana, 11 the Court abandoned its earlier ruling in the Aragon and Mendoza cases. In reversing the lower court's order forfeiting the husband's share of the disputed property acquired during the second marriage, the Court stated that "if the nullity, or annulment of the marriage is the basis for the application of Article 1417, there is need for a judicial declaration thereof, which of course contemplates an action for that purpose."

Citing Gomez v. Lipana, the Court subsequently held in Vda. de Consuegra v. Government Service Insurance System, that "although the second marriage can be presumed to be void ab initio as it was celebrated while the first marriage was still subsisting, still there is need for judicial declaration of such nullity." In Tolentino v. Paras, 12 however, the Court turned around and applied the Aragon and Mendoza ruling once again. In granting the prayer of the first wife asking for a declaration as the lawful surviving spouse and the correction of the death certificate of her deceased husband, it explained that "(t)he second marriage that he contracted with private respondent 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 invalidity of a void marriage ." 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 introducing evidence about the 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 Court a judicial declaration of such fact and for all legal intents and purposes she would still be regarded as a married woman at the time she contracted her marriage with respondent Karl Heinz Wiegel." Came the Family Code which settled once and for all the conflicting jurisprudence on the matter. A declaration of the absolute nullity of a marriage is now explicitly required either as a cause of action or a ground for defense. 14Where the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law for said projected marriage be free from legal infirmity is a final judgment declaring the previous marriage void. 15 The Family Law Revision Committee and the Civil Code Revision Committee 16 which drafted what is now the Family Code of the Philippines took the position that parties to a marriage should not be allowed to assume that their marriage is void even if such be the fact but must first secure a judicial declaration of the nullity of their marriage before they can be allowed to marry again. This is borne out by the following minutes of the 152nd Joint Meeting of the Civil Code and Family Law Committees where the present Article 40, then Art. 39, was discussed. B. Article 39. The absolute nullity of a marriage may be invoked only on the basis of a final judgment declaring the marriage void, except as provided in Article 41. Justice Caguioa remarked that the above provision should include not only void but also voidable marriages. He then suggested that the above provision be modified as follows: The validity of a marriage may be invoked only . . . Justice Reyes (J.B.L. Reyes), however, proposed that they say: The validity or invalidity of a marriage may be invoked only . . . On the other hand, Justice Puno suggested that they say:

The invalidity of a marriage may be invoked only . . . Justice Caguioa explained that his idea is that one cannot determine for himself whether or not his marriage is valid and that a court action is needed . Justice Puno accordingly proposed that the provision be modified to read: The invalidity of a marriage may be invoked only on the basis of a final judgment annulling the marriage or declaring the marriage void, except as provided in Article 41. Justice Caguioa remarked that in annulment, there is no question. Justice Puno, however, pointed out that, even if it is a judgment of annulment, they still have to produce the judgment. Justice Caguioa suggested that they say: The invalidity of a marriage may be invoked only on the basis of a final judgment declaring the marriage invalid, 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 marriage is void? Justice Caguioa replied in the affirmative. Dean Gupit added that in some judgments, even if the marriage is annulled, it is declared void. Justice Puno suggested that this matter be made clear in the provision. Prof. Baviera remarked that the original idea in the provision is to require first a judicial declaration of a void marriage and not annullable marriages, with which the other members concurred. Judge Diy added that annullable marriages are presumed valid until a direct action is filed to annul it, which the other members affirmed. Justice Puno remarked that if this is so, then the phrase "absolute nullity" can stand since it might 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. Prof. Bautista commented that they will be doing away with collateral defense as well as collateral attack. Justice Caguioa explained that the 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 the marriage is void, while the other members affirmed. Justice Caguioa added that they are, therefore, trying to avoid a collateral attack on that point. Prof. Bautista stated that there are actions which are brought on the assumption that the marriage is valid. He then asked: Are they depriving 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 there will be no judgment on the validity or invalidity of the marriage because it will be taken up in the same proceeding. It will not be a unilateral declaration that, it is a void marriage. Justice Caguioa saw the point of Prof. Bautista and suggested that they limit the provision to remarriage. He then proposed that Article 39 be reworded as follows: The absolute nullity of a marriage for purposes of remarriage may be invoked only on the basis of final judgment . . .

Justice Puno suggested that the above be modified as follows: The absolute nullity of a previous marriage may be invoked for purposes of establishing the validity of a subsequent marriage only on the basis of a final judgment declaring such previous marriage void, except as provided in Article 41. Justice Puno later modified the above as follows: 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 of a final judgment declaring such nullity, except as provided in Article 41. Justice Caguioa commented that the above provision is too broad and will not solve the objection of Prof. Bautista. He proposed that they say: For the purpose of entering into a subsequent marriage, the absolute nullity of a previous marriage may only be invoked on the basis of a final judgment declaring such nullity, except as provided in Article 41. Justice Caguioa explained that the idea in the above provision is that if one enters into a subsequent marriage without obtaining a final judgment declaring the nullity of a previous marriage, said subsequent marriage is void ab initio. After further deliberation, Justice Puno suggested that they go back to the original wording of the provision as follows:
The absolute nullity of a previous marriage may be invoked for purposes of remarriage only on the basis of a final judgment declaring such previous marriage void, except as provided in Article 41. 17

In fact, the requirement for a declaration of absolute nullity of a marriage is also for the protection of the spouse who, believing that his or her marriage is illegal and void, marries again. With the judicial declaration of the nullity of his or her first marriage, the person who marries again cannot be charged with bigamy. 18 Just over a year ago, the Court made the pronouncement that there is a necessity for a declaration of absolute nullity of a prior subsisting 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 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 purposes of determining whether a person is legally free to contract a second marriage, a judicial declaration that the first marriage was null and void ab initio is essential." As regards the necessity for a judicial declaration of absolute nullity of marriage, petitioner submits that the same can be maintained only if it is for the purpose of remarriage. Failure to allege this purpose, according to petitioner's theory, will warrant dismissal of the same. Article 40 of the Family Code provides:

Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. (n) 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 it is meant to qualify "final judgment declaring such previous marriage void." Realizing the need for careful craftsmanship in conveying the precise intent of the Committee members, the provision in question, as it finally emerged, did not state "The absolute nullity of a previous marriage may be invoked solely for purposes of remarriage . . .," in which case "solely" would clearly qualify the phrase "for purposes of remarriage." Had the phraseology been such, the interpretation of petitioner would have been correct and, that is, that the absolute nullity of a previous marriage may be invoked solely for purposes of remarriage, thus rendering irrelevant the clause "on the basis solely of a final judgment declaring such previous marriage void." That Article 40 as finally formulated included the significant clause denotes that such final judgment declaring the previous marriage void need not be obtained only for purposes of remarriage. Undoubtedly, one can conceive of other instances where a party might well invoke the absolute nullity of a previous marriage for purposes other than remarriage, such as in case of an action for liquidation, partition, distribution and separation of property between the erstwhile spouses, as well as an action for the custody and support of their common children and the delivery of the latters' presumptive legitimes. In such cases, evidence needs must be adduced, testimonial or documentary, to prove the existence of grounds rendering such a previous marriage an absolute nullity. These need not be limited solely to an earlier final judgment of a court declaring such previous marriage void. Hence, in the instance where a party who has previously contracted a marriage which remains subsisting desires to enter into another marriage which is legally unassailable, he is required by law to prove that the previous one was an absolute nullity. But this he may do on the basis solely of a final judgment declaring such previous marriage void. This leads us to the question: Why the distinction? In other words, for purposes of remarriage, why should the only legally acceptable basis for declaring a previous marriage an absolute nullity be a final judgment declaring such previous marriage void? Whereas, for purposes other than remarriage, other evidence is acceptable? Marriage, a sacrosanct institution, declared by the Constitution as an "inviolable social institution, is the foundation of the family;" as such, it "shall be protected by the State." 20 In more explicit terms, the Family Code characterizes it as "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." 21 So crucial are marriage and the family to the stability and peace of the nation that their "nature, consequences, and incidents are governed by law and not subject to stipulation . . ." 22 As a matter of policy, therefore, the nullification of a marriage for the purpose of contracting another cannot be accomplished merely on the basis of the perception of both parties or of one that their union is so defective with 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, this inviolable social institution would be reduced to a mockery and would rest on very shaky foundations indeed. And the grounds for nullifying marriage would be as diverse and far-ranging as human ingenuity and fancy could conceive. For such a social significant institution, an official state pronouncement through the courts, and 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 through records accessible to everyone. 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 new information required in the Family Code

to be included in the application for a marriage license, viz, "If previously married, how, when and where the previous marriage was dissolved and annulled." 23 Reverting to the case before us, petitioner's interpretation of Art. 40 of the Family Code is, undoubtedly, quite restrictive. Thus, his position that 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 untenable. His misconstruction of Art. 40 resulting from the misplaced emphasis on the term "solely" was in fact anticipated by the members of the Committee.
Dean Gupit commented the word "only" may be misconstrued to 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 of a final judgment." Prof. Baviera suggested that they use the legal term "solely" instead of "only," which the Committee approved. 24 (Emphasis supplied)

Pursuing his previous argument that the declaration for absolute nullity of marriage is unnecessary, petitioner suggests that private respondent should have filed an ordinary civil action for the recovery of the properties alleged to have been acquired during their union. In such an eventuality, the lower court would not be acting as a mere 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 actually nothing to separate or partition as the petition admits that all the properties were acquired with private respondent's money. The Court of Appeals disregarded this argument and concluded that "the prayer for declaration of absolute nullity of marriage may be raised together with the other incident of their marriage such as the separation of their properties." When a marriage is declared void ab initio, the law states that the final judgment therein shall provide for "the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings." 25 Other specific effects flowing therefrom, in proper cases, are the following: Art. 43. xxx xxx xxx (2) The absolute community of property or the conjugal partnership, as 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 the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or, in default of children, the innocent spouse; (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 donee are revoked by operation of law; (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 such designation be stipulated as irrevocable; and

(5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. (n)
Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary disposition made by one in favor of the other are revoked by operation of law. (n) 26

Based on the foregoing provisions, private respondent's ultimate prayer for separation of property will simply be one of the necessary consequences of the judicial declaration of absolute nullity of their marriage. Thus, petitioner's suggestion that in order for their properties to 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 declaration of nullity of marriage, one of which is the separation of property according to the regime of property relations governing them. It stands to reason that the lower court before whom the issue of nullity of a first marriage is brought is likewise clothed with jurisdiction to decide the incidental questions regarding the couple's properties. Accordingly, the respondent court committed no reversible error in finding that the lower court committed no grave abuse of discretion in denying petitioner's motion to dismiss SP No. 1989-J. WHEREFORE, the instant petition is hereby DENIED. The decision of respondent Court dated February 7, 1992 and the Resolution dated March 20, 1992 are AFFIRMED. SO ORDERED. Bidin and Melo, JJ., concur. Feliciano, J., is on leave.

Separate Opinions

VITUG, J., concurring: I concur with the opinion so well expressed by Mme. Justice Flerida Ruth P. Romero. I should like, however, to put in a modest observation. Void marriages are inexistent from the very beginning and, I believe, no judicial decree is required to establish their nullity, except in the following instances: (a) For purposes of remarriage pursuant to the provision of Article 40 of the Family Code; viz.: The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. (n)

(b) A marriage celebrated prior to the effectivity of the Family Code in case a party thereto was psychologically incapacitated to comply with the essential marital obligations of marriage (Article 36, Family Code), where an action or defense for the declaration of nullity prescribes ten (10) years after the Family Code took effect (Article 39, Family Code); otherwise, the marriage is deemed unaffected by the Family Code. A void marriage, even without its being judicially declared a nullity, albeit the preferability for, and justiciability (fully discussed in the majority opinion) of, such a declaration, will not give it the status or the consequences of a valid marriage, saving only specific instances where certain effects of a valid marriage can still flow from the void marriage. Examples of these cases are children of void marriages under Article 36 (due to psychological incapacity) and Article 53, in relation to Article 52 (due to failure of partition, delivery of presumptive legitimes of children and recording thereof following the annulment or declaration of nullity a prior marriage), conceived or born before the judicial declaration of nullity of such void marriages, who the law deems as legitimate (Article 54, Family Code). In most, if not in all, other cases, a void marriage is to be considered extant per se. Neither the conjugal, partnership of gain under the old regime nor the absolute community of property under the new Code (absent a marriage settlement), will apply; instead, their property relations shall be governed by the co-ownership rules under either Article 147 or Article 148 of the Family Code. I must hasten to add as a personal view, however, that the exceptional effects on children of a void marriage because of the psychological incapacity of a party thereto should have been extended to cover even the personal and property relations of the spouses. Unlike the other cases of void marriages where the grounds therefor may be established by hard facts and with little uncertainty, the term "psychological incapacity" is so relative and unsettling that until a judicial declaration of nullity is made its interim effects can long and literally hang on the balance not only insofar as the spouses themselves are concerned but also as regards third persons with whom the spouses deal.

Separate Opinions

VITUG, J., concurring: I concur with the opinion so well expressed by Mme. Justice Flerida Ruth P. Romero. I should like, however, to put in a modest observation. Void marriages are inexistent from the very beginning and, I believe, no judicial decree is required to establish their nullity, except in the following instances: (a) For purposes of remarriage pursuant to the provision of Article 40 of the Family Code; viz.: The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. (n) (b) A marriage celebrated prior to the effectivity of the Family Code in case a party thereto was psychologically incapacitated to comply with the essential marital obligations of marriage (Article 36, Family Code), where an action or defense for the declaration of nullity prescribes ten (10) years after

the Family Code took effect (Article 39, Family Code); otherwise, the marriage is deemed unaffected by the Family Code. A void marriage, even without its being judicially declared a nullity, albeit the preferability for, and justiciability (fully discussed in the majority opinion) of, such a declaration, will not give it the status or the consequences of a valid marriage, saving only specific instances where certain effects of a valid marriage can still flow from the void marriage. Examples of these cases are children of void marriages under Article 36 (due to psychological incapacity) and Article 53, in relation to Article 52 (due to failure of partition, delivery of presumptive legitimes of children and recording thereof following the annulment or declaration of nullity a prior marriage), conceived or born before the judicial declaration of nullity of such void marriages, who the law deems as legitimate (Article 54, Family Code). In most, if not in all, other cases, a void marriage is to be considered extant per se. Neither the conjugal, partnership of gain under the old regime nor the absolute community of property under the new Code (absent a marriage settlement), will apply; instead, their property relations shall be governed by the co-ownership rules under either Article 147 or Article 148 of the Family Code. I must hasten to add as a personal view, however, that the exceptional effects on children of a void marriage because of the psychological incapacity of a party thereto should have been extended to cover even the personal and property relations of the spouses. Unlike the other cases of void marriages where the grounds therefor may be established by hard facts and with little uncertainty, the term "psychological incapacity" is so relative and unsettling that until a judicial declaration of nullity is made its interim effects can long and literally hang on the balance not only insofar as the spouses themselves are concerned but also as regards third persons with whom the spouses deal. FIRST DIVISION G.R. No. 151867 January 29, 2004

DAVID B. DEDEL, Petitioner, vs. COURT OF APPEALS and SHARON L. CORPUZ-DEDEL a.k.a. JANE IBRAHIM, Respondents. REPUBLIC OF THE PHILIPPINES, Oppositor-Respondent. DECISION YNARES-SANTIAGO, J.: Petitioner David B. Dedel met respondent Sharon L. Corpuz Dedel while he was working in the advertising business of his father. The acquaintance led to courtship and romantic relations, culminating in the exchange of marital vows before the City Court of Pasay on September 28, 1966.1 The civil marriage was ratified in a church wedding on May 20, 1967. 2 The union produced four children, namely: Beverly Jane, born on September 18, 1968; 3 Stephanie Janice born on September 9, 1969; 4 Kenneth David born on April 24, 1971; 5 and Ingrid born on October 20, 1976.6 The conjugal partnership, nonetheless, acquired neither property nor debt. Petitioner avers that during the marriage, Sharon turned out to be an irresponsible and immature wife and mother. She had extra-marital affairs with several men: a dentist in the Armed Forces of the Philippines; a Lieutenant in the Presidential Security Command and later a Jordanian national.

Sharon was once confirmed in the Manila Medical City for treatment by Dr. Lourdes Lapuz, a clinical psychiatrist. Petitioner alleged that despite the treatment, Sharon did not stop her illicit relationship with the Jordanian national named Mustafa Ibrahim, whom she married and with whom she had two children. However, when Mustafa Ibrahim left the country, Sharon returned to petitioner bringing along her two children by Ibrahim. Petitioner accepted her back and even considered the two illegitimate children as his own. Thereafter, on December 9, 1995, Sharon abandoned petitioner to join Ibrahim in Jordan with their two children. Since then, Sharon would only return to the country on special occasions. Finally, giving up all hope of a reconciliation with Sharon, petitioner filed on April 1, 1997 a petition seeking the declaration of nullity of his marriage on the ground of psychological incapacity, as defined in Article 36 of the Family Code, before the Regional Trial Court of Makati City, Branch 149. Summons was effected by publication in the Pilipino Star Ngayon, a newspaper of general circulation in the country considering that Sharon did not reside and could not be found in the Philippines.7 Petitioner presented Dr. Natividad A. Dayan, who testified that she conducted a psychological evaluation of petitioner and found him to be conscientious, hardworking, diligent, a perfectionist who wants all tasks and projects completed up to the final detail and who exerts his best in whatever he does. On the other hand, Dr. Dayan declared that Sharon was suffering from Anti-Social Personality Disorder exhibited by her blatant display of infidelity; that she committed several indiscretions and had no capacity for remorse, even bringing with her the two children of Mustafa Ibrahim to live with petitioner. Such immaturity and irresponsibility in handling the marriage like her repeated acts of infidelity and abandonment of her family are indications of Anti-Social Personality Disorder amounting to psychological incapacity to perform the essential obligations of marriage. 8 After trial, judgment was rendered, the dispositive portion of which reads: WHEREFORE, in the light of the foregoing, the civil and church marriages between DAVID B. DEDEL and SHARON L. CORPUZ celebrated on September 28, 1966 and May 20, 1967 are hereby declared null and void on the ground of psychological incapacity on the part of the respondent to perform the essential obligations of marriage under Article 36 of the Family Code. Accordingly, the conjugal partnership of gains existing between the parties is dissolved and in lieu thereof a regime of complete separation of property between the said spouses is established in accordance with the pertinent provisions of the Family Code, without prejudice to rights previously acquired by creditors. Let a copy of this Decision be duly recorded in the proper civil and property registries in accordance with Article 52 of the Family Code. SO ORDERED.9 Respondent Republic of the Philippines, through the Solicitor General, appealed alleging that I THE LOWER COURT ERRED IN GRANTING THE PETITION DESPITE THE ABSENCE OF A VALID GROUND FOR DECLARATION OF NULLITY OF MARRIAGE.

II THE LOWER COURT ERRED IN DECLARING THAT THE CHURCH MARRIAGE BETWEEN PETITIONER IS NULL AND VOID. III THE LOWER COURT ERRED IN RENDERING A DECISION WITHOUT A CERTIFICATION HAVING BEEN ISSUED BY THE SOLICITOR GENERAL AS REQUIRED IN THE MOLINA CASE. The Court of Appeals recalled and set aside the judgment of the trial court and ordered dismissal of the petition for declaration of nullity of marriage. 10 Petitioners motion for reconsideration was denied in a Resolution dated January 8, 2002. 11 Hence, the instant petition. Petitioner contends that the appellate court gravely abused its discretion and manifestly erred in its conclusion that the: (1) respondent was not suffering from psychological incapacity to perform her marital obligations; (2) psychological incapacity of respondent is not attended by gravity, juridical antecedence and permanence or incurability; and (3) totality of evidence submitted by the petitioner falls short to prove psychological incapacity suffered by respondent. The main question for resolution is whether or not the totality of the evidence presented is enough to sustain a finding that respondent is psychologically incapacitated. More specifically, does the aberrant sexual behavior of respondent adverted to by petitioner fall within the term "psychological incapacity?" In Santos v. Court of Appeals,12 it was ruled: x x x "psychological incapacity" should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed in Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of "psychological incapacity" to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity of inability to give meaning and significance to the marriage. This psychological condition must exist at the time the marriage is celebrated. The law does not evidently envision, upon the other hand, an inability of the spouse to have sexual relations with the other. This conclusion is implicit under Article 54 of the Family Code which considers children conceived prior to the judicial declaration of nullity of the void marriage to be "legitimate." The other forms of psychoses, if existing at the inception of marriage, like the state of a party being of unsound mind or concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism, merely renders the marriage contract voidable pursuant to Article 46, Family Code. If drug addiction, habitual alcoholism, lesbianism or homosexuality should occur only during the marriage, they become mere grounds for legal separation under Article 55 of the Family Code. These provisions, however, do not necessarily preclude the possibility of these various circumstances being themselves, depending on the degree and severity of the disorder, indicia of psychological incapacity.

Until further statutory and jurisprudential parameters are established, every circumstance that may have some bearing on the degree, extent and other conditions of that incapacity must, in every case, be carefully examined and evaluated so that no precipitate and indiscriminate nullity is peremptorily decreed. The well-considered opinion of psychiatrists, psychologists and persons with expertise in psychological disciplines might be helpful or even desirable. 13 The difficulty in resolving the problem lies in the fact that a personality disorder is a very complex and elusive phenomenon which defies easy analysis and definition. In this case, respondents sexual infidelity can hardly qualify as being mentally or psychically ill to such an extent that she could not have known the obligations she was assuming, or knowing them, could not have given a valid assumption thereof.14 It appears that respondents promiscuity did not exist prior to or at the inception of the marriage. What is, in fact, disclosed by the records is a blissful marital union at its celebration, later affirmed in church rites, and which produced four children. Respondents sexual infidelity or perversion and abandonment do not by themselves constitute psychological incapacity within the contemplation of the Family Code. Neither could her emotional immaturity and irresponsibility be equated with psychological incapacity. 15 It must be shown that these acts are manifestations of a disordered personality which make respondent completely unable to discharge the essential obligations of the marital state, not merely due to her youth, immaturity 16 or sexual promiscuity. At best, the circumstances relied upon by petitioner are grounds for legal separation under Article 5517 of the Family Code. However, we pointed out in Marcos v. Marcos18 that Article 36 is not to be equated with legal separation in which the grounds need not be rooted in psychological incapacity but on physical violence, moral pressure, civil interdiction, drug addiction, habitual alcoholism, sexual infidelity, abandonment and the like. In short, the evidence presented by petitioner refers only to grounds for legal separation, not for declaring a marriage void. We likewise agree with the Court of Appeals that the trial court has no jurisdiction to dissolve the church marriage of petitioner and respondent. The authority to do so is exclusively lodged with the Ecclesiastical Court of the Roman Catholic Church. All told, we find no cogent reason to disturb the ruling of the appellate court. We cannot deny the grief, frustration and even desperation of petitioner in his present situation. Regrettably, there are circumstances, like in this case, where neither law nor society can provide the specific answers to every individual problem.19 While we sympathize with petitioners marital predicament, our first and foremost duty is to apply the law no matter how harsh it may be. 20
1wphi1

WHEREFORE, in view of the foregoing, the petition is DENIED. The decision of the Court of Appeals in CA-G.R. CV No. 60406, which ordered the dismissal of Civil Case No. 97-467 before the Regional Trial Court of Makati, Branch 149, is AFFIRMED. No costs. SO ORDERED. Davide, Jr., C.J., (Chairman), Panganiban, and Carpio, JJ., concur. Azcuna, J., on official leave.

SECOND DIVISION

[G.R. No. 145226. February 06, 2004]

LUCIO MORIGO y CACHO, petitioner, PHILIPPINES, respondent. DECISION

QUISUMBING, J.:

vs.

PEOPLE

OF

THE

This petition for review on certiorari seeks to reverse the decision dated October 21, 1999 of the Court of Appeals in CA-G.R. CR No. 20700, which affirmed the judgment dated August 5, 1996 of the Regional Trial Court (RTC) of Bohol, Branch 4, in Criminal Case No. 8688. The trial court found herein petitioner Lucio Morigo y Cacho guilty beyond reasonable doubt of bigamy and sentenced him to a prison term of seven (7) months of prision correccional as minimum to six (6) years and one (1) day of prision mayor as maximum. Also assailed in this petition is the resolution of the appellate court, dated September 25, 2000, denying Morigos motion for reconsideration.
[1] [2] [3]

The facts of this case, as found by the court a quo, are as follows:

Appellant Lucio Morigo and Lucia Barrete were boardmates at the house of Catalina Tortor at Tagbilaran City, Province of Bohol, for a period of four (4) years (from 1974-1978). After school year 1977-78, Lucio Morigo and Lucia Barrete lost contact with each other. In 1984, Lucio Morigo was surprised to receive a card from Lucia Barrete from Singapore. The former replied and after an exchange of letters, they became sweethearts. In 1986, Lucia returned to the Philippines but left again for Canada to work there. While in Canada, they maintained constant communication. In 1990, Lucia came back to the Philippines and proposed to petition appellant to join her in Canada. Both agreed to get married, thus they were married on August 30, 1990 at the Iglesia de Filipina Nacional at Catagdaan, Pilar, Bohol. On September 8, 1990, Lucia reported back to her work in Canada leaving appellant Lucio behind.

On August 19, 1991, Lucia filed with the Ontario Court (General Division) a petition for divorce against appellant which was granted by the court on January 17, 1992 and to take effect on February 17, 1992. On October 4, 1992, appellant Lucio Morigo married Maria Jececha Lumbago at the Virgen sa Barangay Parish, Tagbilaran City, Bohol.
[4]

On September 21, 1993, accused filed a complaint for judicial declaration of nullity of marriage in the Regional Trial Court of Bohol, docketed as Civil Case No. 6020. The complaint seek (sic) among others, the declaration of nullity of accuseds marriage with Lucia, on the ground that no marriage ceremony actually took place. On October 19, 1993, appellant was charged with Bigamy in an Information filed by the City Prosecutor of Tagbilaran [City], with the Regional Trial Court of Bohol.
[5] [6]

The petitioner moved for suspension of the arraignment on the ground that the civil case for judicial nullification of his marriage with Lucia posed a prejudicial question in the bigamy case. His motion was granted, but subsequently denied upon motion for reconsideration by the prosecution. When arraigned in the bigamy case, which was docketed as Criminal Case No. 8688, herein petitioner pleaded not guilty to the charge. Trial thereafter ensued. On August 5, 1996, the RTC of Bohol handed down its judgment in Criminal Case No. 8688, as follows:

WHEREFORE, foregoing premises considered, the Court finds accused Lucio Morigo y Cacho guilty beyond reasonable doubt of the crime of Bigamy and sentences him to suffer the penalty of imprisonment ranging from Seven (7) Months of Prision Correccional as minimum to Six (6) Years and One (1) Day of Prision Mayor as maximum. SO ORDERED.
[7]

In convicting herein petitioner, the trial court discounted petitioners claim that his first marriage to Lucia was null and void ab initio. Following Domingo v. Court of Appeals, the trial court ruled that want of a valid marriage ceremony is not a defense in a charge of bigamy. The parties to a marriage should not be allowed to assume that their marriage is void even if such be the fact but must first secure a judicial declaration of the nullity of their marriage before they can be allowed to marry again.
[8]

Anent the Canadian divorce obtained by Lucia, the trial court cited Ramirez v. Gmur, which held that the court of a country in which neither of the spouses is domiciled and in which one or both spouses may resort merely for the purpose of obtaining a divorce, has no jurisdiction to determine the matrimonial status of the parties. As such, a divorce granted by said court is not entitled to recognition anywhere.
[9]

Debunking Lucios defense of good faith in contracting the second marriage, the trial court stressed that following People v. Bitdu, everyone is presumed to know the law, and the fact that one does not know that his act constitutes a violation of the law does not exempt him from the consequences thereof.
[10]

Seasonably, petitioner filed an appeal with the Court of Appeals, docketed as CAG.R. CR No. 20700. Meanwhile, on October 23, 1997, or while CA-G.R. CR No. 20700 was pending before the appellate court, the trial court rendered a decision in Civil Case No. 6020 declaring the marriage between Lucio and Lucia void ab initio since no marriage ceremony actually took place. No appeal was taken from this decision, which then became final and executory. On October 21, 1999, the appellate court decided CA-G.R. CR No. 20700 as follows:

WHEREFORE, finding no error in the appealed decision, the same is hereby AFFIRMED in toto. SO ORDERED.
[11]

In affirming the assailed judgment of conviction, the appellate court stressed that the subsequent declaration of nullity of Lucios marriage to Lucia in Civil Case No. 6020 could not acquit Lucio. The reason is that what is sought to be punished by Article 349 of the Revised Penal Code is the act of contracting a second marriage before the first marriage had been dissolved. Hence, the CA held, the fact that the first marriage was void from the beginning is not a valid defense in a bigamy case.
[12]

The Court of Appeals also pointed out that the divorce decree obtained by Lucia from the Canadian court could not be accorded validity in the Philippines, pursuant to Article 15 of the Civil Code and given the fact that it is contrary to public policy in this jurisdiction. Under Article 17 of the Civil Code, a declaration of public policy cannot be rendered ineffectual by a judgment promulgated in a foreign jurisdiction.
[13] [14]

Petitioner moved for reconsideration of the appellate courts decision, contending that the doctrine in Mendiola v. People, allows mistake upon a difficult question of law (such as the effect of a foreign divorce decree) to be a basis for good faith.
[15]

On September 25, 2000, the appellate court denied the motion for lack of merit. However, the denial was by a split vote. The ponente of the appellate courts original decision in CA-G.R. CR No. 20700, Justice Eugenio S. Labitoria, joined in the opinion prepared by Justice Bernardo P. Abesamis. The dissent observed that as the first marriage was validly declared void ab initio, then there was no first marriage to speak of. Since the date of the nullity retroacts to the date of the first marriage and since herein petitioner was, in the eyes of the law, never married, he cannot be convicted beyond reasonable doubt of bigamy.
[16]

The present petition raises the following issues for our resolution:

A.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPLY THE RULE THAT IN CRIMES PENALIZED UNDER THE REVISED PENAL CODE, CRIMINAL INTENT IS AN INDISPENSABLE REQUISITE. COROLLARILY, WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPRECIATE [THE] PETITIONERS LACK OF CRIMINAL INTENT WHEN HE CONTRACTED THE SECOND MARRIAGE.
B.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN HOLDING THAT THE RULING IN PEOPLE VS. BITDU (58 PHIL. 817) IS APPLICABLE TO THE CASE AT BAR.
C.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPLY THE RULE THAT EACH AND EVERY CIRCUMSTANCE FAVORING THE INNOCENCE OF THE ACCUSED MUST BE TAKEN INTO ACCOUNT.
[17]

To our mind, the primordial issue should be whether or not petitioner committed bigamy and if so, whether his defense of good faith is valid. The petitioner submits that he should not be faulted for relying in good faith upon the divorce decree of the Ontario court. He highlights the fact that he contracted the second marriage openly and publicly, which a person intent upon bigamy would not be doing. The petitioner further argues that his lack of criminal intent is material to a conviction or acquittal in the instant case. The crime of bigamy, just like other felonies punished under the Revised Penal Code, is mala in se, and hence, good faith and lack of criminal intent are allowed as a complete defense. He stresses that there is a difference between the intent to commit the crime and the intent to perpetrate the act. Hence, it does not necessarily follow that his intention to contract a second marriage is tantamount to an intent to commit bigamy. For the respondent, the Office of the Solicitor General (OSG) submits that good faith in the instant case is a convenient but flimsy excuse. The Solicitor General relies upon our ruling in Marbella-Bobis v. Bobis, which held that bigamy can be successfully prosecuted provided all the elements concur, stressing that under Article 40 of the Family Code, a judicial declaration of nullity is a must before a party may re-marry. Whether or not the petitioner was aware of said Article 40 is of no account as everyone is presumed to know the law. The OSG counters that petitioners contention that he
[18] [19]

was in good faith because he relied on the divorce decree of the Ontario court is negated by his act of filing Civil Case No. 6020, seeking a judicial declaration of nullity of his marriage to Lucia. Before we delve into petitioners defense of good faith and lack of criminal intent, we must first determine whether all the elements of bigamy are present in this case. In Marbella-Bobis v. Bobis, we laid down the elements of bigamy thus:
[20]

(1) the offender has been legally married; (2) the first marriage has not been legally dissolved, or in case his or her spouse is absent, the absent spouse has not been judicially declared presumptively dead; (3) he contracts a subsequent marriage; and (4) the subsequent marriage would have been valid had it not been for the existence of the first. Applying the foregoing test to the instant case, we note that during the pendency of CA-G.R. CR No. 20700, the RTC of Bohol Branch 1, handed down the following decision in Civil Case No. 6020, to wit:

WHEREFORE, premises considered, judgment is hereby rendered decreeing the annulment of the marriage entered into by petitioner Lucio Morigo and Lucia Barrete on August 23, 1990 in Pilar, Bohol and further directing the Local Civil Registrar of Pilar, Bohol to effect the cancellation of the marriage contract. SO ORDERED.
[21]

The trial court found that there was no actual marriage ceremony performed between Lucio and Lucia by a solemnizing officer. Instead, what transpired was a mere signing of the marriage contract by the two, without the presence of a solemnizing officer. The trial court thus held that the marriage is void ab initio, in accordance with Articles 3 and 4 of the Family Code. As the dissenting opinion in CA-G.R. CR No. 20700, correctly puts it, This simply means that there was no marriage to begin with; and that such declaration of nullity retroacts to the date of the first marriage. In other words, for all intents and purposes, reckoned from the date of the declaration of the first marriage as void ab initio to the date of the celebration of the first marriage, the accused was, under the eyes of the law, never married. The records show that no appeal was taken from the decision of the trial court in Civil Case No. 6020, hence, the decision had long become final and executory.
[22] [23] [24]

The first element of bigamy as a crime requires that the accused must have been legally married. But in this case, legally speaking, the petitioner was never married to Lucia Barrete. Thus, there is no first marriage to speak of. Under the principle of retroactivity of a marriage being declared void ab initio, the two were never married from the beginning. The contract of marriage is null; it bears no legal effect. Taking this argument to its logical conclusion, for legal purposes, petitioner was not married to Lucia at the time he contracted the marriage with Maria Jececha. The existence and the

validity of the first marriage being an essential element of the crime of bigamy, it is but logical that a conviction for said offense cannot be sustained where there is no first marriage to speak of. The petitioner, must, perforce be acquitted of the instant charge. The present case is analogous to, but must be distinguished from Mercado v. Tan. In the latter case, the judicial declaration of nullity of the first marriage was likewise obtained after the second marriage was already celebrated. We held therein that:
[25]

A judicial declaration of nullity of a previous marriage is necessary before a subsequent one can be legally contracted. One who enters into a subsequent marriage without first obtaining such judicial declaration is guilty of bigamy. This principle applies even if the earlier union is characterized by statutes as void.
[26]

It bears stressing though that in Mercado, the first marriage was actually solemnized not just once, but twice: first before a judge where a marriage certificate was duly issued and then again six months later before a priest in religious rites. Ostensibly, at least, the first marriage appeared to have transpired, although later declared void ab initio. In the instant case, however, no marriage ceremony at all was performed by a duly authorized solemnizing officer. Petitioner and Lucia Barrete merely signed a marriage contract on their own. The mere private act of signing a marriage contract bears no semblance to a valid marriage and thus, needs no judicial declaration of nullity. Such act alone, without more, cannot be deemed to constitute an ostensibly valid marriage for which petitioner might be held liable for bigamy unless he first secures a judicial declaration of nullity before he contracts a subsequent marriage. The law abhors an injustice and the Court is mandated to liberally construe a penal statute in favor of an accused and weigh every circumstance in favor of the presumption of innocence to ensure that justice is done. Under the circumstances of the present case, we held that petitioner has not committed bigamy. Further, we also find that we need not tarry on the issue of the validity of his defense of good faith or lack of criminal intent, which is now moot and academic. WHEREFORE, the instant petition is GRANTED. The assailed decision, dated October 21, 1999 of the Court of Appeals in CA-G.R. CR No. 20700, as well as the resolution of the appellate court dated September 25, 2000, denying herein petitioners motion for reconsideration, is REVERSED and SET ASIDE. The petitioner Lucio Morigo y Cacho is ACQUITTED from the charge of BIGAMY on the ground that his guilt has not been proven with moral certainty. SO ORDERED. Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.
FIRST DIVISION G.R. No. 159218 March 30, 2004

SALVADOR S. ABUNADO and ZENAIDA BIAS ABUNADO, Petitioners, vs. PEOPLE OF THE PHILIPPINES, Responden DECISION YNARES-SANTIAGO, J.: This petition for review on certiorari seeks to reverse and set aside the decision 1 of the Court of Appeals in CA-G.R. No. 26135 which affirmed with modification the decision of the Regional Trial Court, Branch 77, San Mateo, Rizal in Criminal Case No. 2803 convicting petitioner Salvador S. Abunado of bigamy. The records show that on September 18, 1967, Salvador married Narcisa Arceo at the Manila City Hall before Rev. Pedro Tiangco. 2 In 1988 Narcisa left for Japan to work but returned to the Philippines in 1992, when she learned that her husband was having an extra-marital affair and has left their conjugal home. After earnest efforts, Narcisa found Salvador in Quezon City cohabiting with Fe Corazon Plato. She also discovered that on January 10, 1989, Salvador contracted a second marriage with a certain Zenaida Bias before Judge Lilian Dinulos Panontongan in San Mateo, Rizal. 3 On January 19, 1995, an annulment case was filed by Salvador against Narcisa. 4 On May 18, 1995, a case for bigamy was filed by Narcisa against Salvador and Zenaida. 5 Salvador admitted that he first married Zenaida on December 24, 1955 before a municipal trial court judge in Concepcion, Iloilo and has four children with her prior to their separation in 1966. It appeared however that there was no evidence of their 1955 marriage so he and Zenaida remarried on January 10, 1989, upon the request of their son for the purpose of complying with the requirements for his commission in the military. On May 18, 2001, the trial court convicted petitioner Salvador Abunado of bigamy and sentenced him to suffer imprisonment of six (6) years and one (1) day, as minimum, to eight (8) years and one (1) day, as maximum. Petitioner Zenaida Bias was acquitted for insufficiency of evidence. 6 On appeal, the Court of Appeals affirmed with modification the decision of the trial court, as follows: WHEREFORE, the Decision appealed from is hereby MODIFIED as to the penalty imposed but AFFIRMED in all other respects. Appreciating the mitigating circumstance that accused is 76 years of age and applying the provisions of the Indeterminate Sentence Law, the appellant is hereby sentenced to suffer an indeterminate prison term of two (2) years, four (4) months and one (1) day of prision correccional as Minimum to six (6) years and one (1) day of prision mayor as Maximum. No costs. SO ORDERED.7 Petitioner is now before us on petition for review. First, he argues that the Information was defective as it stated that the bigamous marriage was contracted in 1995 when in fact it should have been 1989.

Indeed, an accused has the right to be informed of the nature and cause of the accusation against him.8 It is required that the acts and omissions complained of as constituting the offense must be alleged in the Information.9 The real nature of the crime charged is determined by the facts alleged in the Information and not by the title or designation of the offense contained in the caption of the Information. It is fundamental that every element of which the offense is comprised must be alleged in the Information. What facts and circumstances are necessary to be alleged in the Information must be determined by reference to the definition and essential elements of the specific crimes. 10 The question, therefore, is whether petitioner has been sufficiently informed of the nature and cause of the accusation against him, namely, that he contracted a subsequent marriage with another woman while his first marriage was subsisting. The information against petitioner alleges: That in or about and sometime in the month of January, 1995 at the Municipality of San Mateo, Rizal place (sic) within the jurisdiction of this Honorable Court, the above-named accused, having been legally married to complainant Narcisa Abunado on September 16, 1967 which has not been legally dissolved, did then and therewillfully, unlawfully and feloniously contract a subsequent marriage to Zenaida Bias Abunado on January 10, 1989 which has all the essential requisites of a valid marriage. CONTRARY TO LAW.11 The statement in the information that the crime was committed "in or about and sometime in the month of January, 1995," was an obvious typographical error, for the same information clearly states that petitioner contracted a subsequent marriage to Zenaida Bias Abunado on January 10, 1989. Petitioners submission, therefore, that the information was defective is untenable. The general rule is that a defective information cannot support a judgment of conviction unless the defect was cured by evidence during the trial and no objection appears to have been raised. 12 It should be remembered that bigamy can be successfully prosecuted provided all its elements concur two of which are a previous marriage and a subsequent marriage which possesses all the requisites for validity.13 All of these have been sufficiently established by the prosecution during the trial. Notably, petitioner failed to object to the alleged defect in the Information during the trial and only raised the same for the first time on appeal before the Court of Appeals. Second, petitioner argues that Narcisa consented to his marriage to Zenaida, which had the effect of absolving him of criminal liability. In this regard, we agree with the Court of Appeals when it ruled, thus: x x x, while he claims that there was condonation on the part of complainant when he entered into a bigamous marriage, the same was likewise not established by clear and convincing evidence. But then, a pardon by the offended party does not extinguish criminal action considering that a crime is committed against the State and the crime of Bigamy is a public offense which can be denounced not only by the person affected thereby but even by a civic-spirited citizen who may come to know the same.14

Third, petitioner claims that his petition for annulment/declaration of nullity of marriage was a prejudicial question, hence, the proceedings in the bigamy case should have been suspended during the pendency of the annulment case. Petitioner, in fact, eventually obtained a judicial declaration of nullity of his marriage to Narcisa on October 29, 1999. 15 A prejudicial question has been defined as one based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined. The rationale behind the principle of suspending a criminal case in view of a prejudicial question is to avoid two conflicting decisions.16 The subsequent judicial declaration of the nullity of the first marriage was immaterial because prior to the declaration of nullity, the crime had already been consummated. Moreover, petitioners assertion would only delay the prosecution of bigamy cases considering that an accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that. 17 The outcome of the civil case for annulment of petitioners marriage to Narcisa had no bearing upon the determination of petitioners innocence or guilt in the criminal case for bigamy, because all that is required for the charge of bigamy to prosper is that the first marriage be subsisting at the time the second marriage is contracted.18 Thus, under the law, a marriage, even one which is void or voidable, shall be deemed valid until declared otherwise in a judicial proceeding. 19 In this case, even if petitioner eventually obtained a declaration that his first marriage was void ab initio, the point is, both the first and the second marriage were subsisting before the first marriage was annulled. Finally, petitioner claims that the penalty imposed on him was improper. Article 349 of the Revised Penal Code imposes the penalty of prision mayor for bigamy. Under the Indeterminate Sentence Law, the court shall sentence the accused to an indeterminate penalty, the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the Revised Penal Code, and the minimum term of which shall be within the range of the penalty next lower to that prescribed by the Code for the offense. The penalty next lower would be based on the penalty prescribed by the Code for the offense, without first considering any modifying circumstance attendant to the commission of the crime. The determination of the minimum penalty is left by law to the sound discretion of the court and it can be 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.20 In light of the fact that petitioner is more than 70 years of age, 21 which is a mitigating circumstance under Article 13, paragraph 2 of the Revised Penal Code, the maximum term of the indeterminate sentence should be taken from prision mayor in its minimum period which ranges from six (6) years and one (1) day to eight (8) years, while the minimum term should be taken from prision correccional in any of its periods which ranges from six (6) months and one (1) day to six (6) years. Therefore, the penalty imposed by the Court of Appeals, i.e., two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to six (6) years and one (1) day of prision mayor, as maximum, is proper.

WHEREFORE, in view of the foregoing, the decision of the Court of Appeals in CA-G.R. CR No. 26135, finding petitioner Salvador S. Abunado guilty beyond reasonable doubt of the crime of bigamy, and sentencing him to suffer an indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to six (6) years and one (1) day of prision mayor, as maximum, is AFFIRMED. Costs de oficio. SO ORDERED. Davide, Jr., C.J. (Chairman), Panganiban, Ynares-Santiago, Carpio, and Azcuna, JJ.

Concurring Opinion CARPIO, J.: I concur in the result of the ponencia of Justice Consuelo Ynares-Santiago finding appellant Salvador S. Abunado guilty of bigamy. The material facts are not in dispute. On 18 September 1967, Abunado married Narcisa Arceno. While his marriage with Arceno remained unannulled, Abunado married Zenaida Bias on 10 January 1989. Subsequently, on 29 October 1999, Abunado obtained from the Regional Trial Court of Makati City a judicial declaration of nullity of his marriage with Arceno. On 18 May 2001, the Regional Trial Court of San Mateo, Rizal rendered a decision convicting Abunado of bigamy. The sole issue is whether the second marriage of Abunado to Bias on 10 January 1989 constitutes the crime of bigamy under Article 3491 of the Revised Penal Code. More precisely, the issue turns on whether Abunados first marriage to Arceno was still subsisting at the time Abunado married Bias. Under the Family Code, before one can contract a second marriage on the ground of nullity of the first marriage, one must first secure a final judgment declaring the first marriage void. Article 40 of the Family Code provides: Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. The Family Code took effect on 3 August 1988, before the second marriage of Abunado on 10 January 1989. Prior to the Family Code, one could contract a subsequent marriage on the ground of nullity of the previous marriage without first securing a judicial annulment of the previous marriage. If subsequently the previous marriage were judicially declared void, the subsequent marriage would not be deemed bigamous. The nullity of the previous marriage could even be judicially declared in the criminal case for bigamy,2 although the person remarrying "assume(d) the risk of being prosecuted for bigamy"3 should the court uphold the validity of the first marriage. Article 40 of the Family Code has changed this.

Now, one must first secure a final judicial declaration of nullity of the previous marriage before he is freed from the marital bond or vinculum of the previous marriage. If he fails to secure a judicial declaration of nullity and contracts a second marriage, then the second marriage becomes bigamous. As the Court stated in Domingo v. Court of Appeals 4 in explaining Article 40 of the Family Code: In fact, the requirement for a declaration of absolute nullity of a marriage is also for the protection of the spouse who, believing that his or her marriage is illegal and void, marries again. With the judicial declaration of the nullity of his or her first marriage, the person who marries again cannot be charged with bigamy. Conversely, if the person remarries without securing a judicial declaration of nullity of his previous marriage, he is liable for bigamy. Article 40 of the Family Code considers the marital vinculum of the previous marriage to subsist for purposes of remarriage, unless the previous marriage is judicially declared void by final judgment. Thus, if the marital vinculum of the previous marriage subsists because of the absence of judicial declaration of its nullity, the second marriage is contracted during the existence of the first marriage resulting in the crime of bigamy. Under Article 40 of the Family Code, the marital vinculum of a previous marriage that is void ab initio subsists only for purposes of remarriage. For purposes other than remarriage, marriages that are void ab initio, such as those falling under Articles 35 and 36 of the Family Code, are void even without a judicial declaration of nullity. As the Court held in Cario v. Cario: 5 Under Article 40 of the Family Code, the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. Meaning, where the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law, for said projected marriage to be free from legal infirmity, is a final judgment declaring the previous marriage void. However, for purposes other than remarriage, no judicial action is necessary to declare a marriage an absolute nullity. x x x . (Emphasis supplied) Cario, penned by Justice Consuelo Ynares-Santiago herself, contradicts the statement in her present ponencia that "under the law, a marriage, even one which is void or voidable, shall be deemed valid until declared otherwise in a judicial proceeding." I believe the ruling in Cario is correct and should not be disturbed. As Justice Jose C. Vitug explained in his recent textbook on Civil Law (Volume I): The phrase "for purposes of remarriage" is not at all insignificant. Void marriages, like void contracts, are inexistent from the very beginning. It is only by way of exception that the Family Code requires a judicial declaration of nullity of the previous marriage before a subsequent marriage is contracted; x x x.6 (Emphasis supplied) Thus, the general rule is if the marriage is void ab initio, it is ipso facto void without need of any judicial declaration of nullity. The only recognized exception 7 under existing law is Article 40 of the Family Code where a marriage void ab initio is deemed valid for purposes of remarriage, hence necessitating a judicial declaration of nullity before one can contract a subsequent marriage. Article 40 of the Family Code applies only to a situation where the previous marriage suffers from nullity while the second marriage does not. Under Article 40, what requires a judicial declaration of

nullity is the previous marriage, not the subsequent marriage. Article 40 does not apply to a situation where the first marriage does not suffer from any defect while the second is void. Accordingly, I vote to deny the petition and affirm the decision of the Court of Appeals finding appellant Salvador S. Abunado guilty of the crime of bigamy. ANTONIO T. CARPIO Associate Justice EN BANC G.R. No. 150758 February 18, 2004

VERONICO TENEBRO, petitioner vs. THE HONORABLE COURT OF APPEALS, respondent. DECISION YNARES-SANTIAGO, J.: We are called on to decide the novel issue concerning the effect of the judicial declaration of the nullity of a second or subsequent marriage, on the ground of psychological incapacity, on an individuals criminal liability for bigamy. We hold that the subsequent judicial declaration of nullity of marriage on the ground of psychological incapacity does not retroact to the date of the celebration of the marriage insofar as the Philippines penal laws are concerned. As such, an individual who contracts a second or subsequent marriage during the subsistence of a valid marriage is criminally liable for bigamy, notwithstanding the subsequent declaration that the second marriage is void ab initio on the ground of psychological incapacity. Petitioner in this case, Veronico Tenebro, contracted marriage with private complainant Leticia Ancajas on April 10, 1990. The two were wed by Judge Alfredo B. Perez, Jr. of the City Trial Court of Lapu-lapu City. Tenebro and Ancajas lived together continuously and without interruption until the latter part of 1991, when Tenebro informed Ancajas that he had been previously married to a certain Hilda Villareyes on November 10, 1986. Tenebro showed Ancajas a photocopy of a marriage contract between him and Villareyes. Invoking this previous marriage, petitioner thereafter left the conjugal dwelling which he shared with Ancajas, stating that he was going to cohabit with Villareyes. 1 On January 25, 1993, petitioner contracted yet another marriage, this one with a certain Nilda Villegas, before Judge German Lee, Jr. of the Regional Trial Court of Cebu City, Branch 15. 2 When Ancajas learned of this third marriage, she verified from Villareyes whether the latter was indeed married to petitioner. In a handwritten letter, 3Villareyes confirmed that petitioner, Veronico Tenebro, was indeed her husband. Ancajas thereafter filed a complaint for bigamy against petitioner. 4 The Information,5 which was docketed as Criminal Case No. 013095-L, reads: That on the 10th day of April 1990, in the City of Lapu-lapu, Philippines, and within the jurisdiction of this Honorable Court, the aforenamed accused, having been previously united in lawful marriage with Hilda Villareyes, and without the said marriage having been legally dissolved, did then and there willfully, unlawfully and feloniously contract a second marriage with LETICIA ANCAJAS, which

second or subsequent marriage of the accused has all the essential requisites for validity were it not for the subsisting first marriage. CONTRARY TO LAW. When arraigned, petitioner entered a plea of "not guilty". 6 During the trial, petitioner admitted having cohabited with Villareyes from 1984-1988, with whom he sired two children. However, he denied that he and Villareyes were validly married to each other, claiming that no marriage ceremony took place to solemnize their union. 7 He alleged that he signed a marriage contract merely to enable her to get the allotment from his office in connection with his work as a seaman.8 He further testified that he requested his brother to verify from the Civil Register in Manila whether there was any marriage at all between him and Villareyes, but there was no record of said marriage.9 On November 10, 1997, the Regional Trial Court of Lapu-lapu City, Branch 54, rendered a decision finding the accused guilty beyond reasonable doubt of the crime of bigamy under Article 349 of the Revised Penal Code, and sentencing him to four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum. 10 On appeal, the Court of Appeals affirmed the decision of the trial court. Petitioners motion for reconsideration was denied for lack of merit. Hence, the instant petition for review on the following assignment of errors: I. THE HONORABLE COURT OF APPEALS GRAVELY ERRED, AND THIS ERROR IS CORRECTIBLE IN THIS APPEAL WHEN IT AFFIRMED THE DECISION OF THE HONORABLE COURT A QUO CONVICTING THE ACCUSED FOR (sic) THE CRIME OF BIGAMY, DESPITE THE NON-EXISTENCE OF THE FIRST MARRIAGE AND INSUFFICIENCY OF EVIDENCE. II. THE COURT ERRED IN CONVICTING THE ACCUSED FOR (sic) THE CRIME OF BIGAMY DESPITE CLEAR PROOF THAT THE MARRIAGE BETWEEN THE ACCUSED AND PRIVATE COMPLAINANT HAD BEEN DECLARED NULL AND VOID AB INITIO AND WITHOUT LEGAL FORCE AND EFFECT.11 After a careful review of the evidence on record, we find no cogent reason to disturb the assailed judgment. Under Article 349 of the Revised Penal Code, the elements of the crime of Bigamy are: (1) that the offender has been legally married; (2) that the first marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code; (3) that he contracts a second or subsequent marriage; and (4) that the second or subsequent marriage has all the essential requisites for validity. 12 Petitioners assignment of errors presents a two-tiered defense, in which he (1) denies the existence of his first marriage to Villareyes, and (2) argues that the declaration of the nullity of the second

marriage on the ground of psychological incapacity, which is an alleged indicator that his marriage to Ancajas lacks the essential requisites for validity, retroacts to the date on which the second marriage was celebrated.13 Hence, petitioner argues that all four of the elements of the crime of bigamy are absent, and prays for his acquittal. 14 Petitioners defense must fail on both counts. First, the prosecution presented sufficient evidence, both documentary and oral, to prove the existence of the first marriage between petitioner and Villareyes. Documentary evidence presented was in the form of: (1) a copy of a marriage contract between Tenebro and Villareyes, dated November 10, 1986, which, as seen on the document, was solemnized at the Manila City Hall before Rev. Julieto Torres, a Minister of the Gospel, and certified to by the Office of the Civil Registrar of Manila;15 and (2) a handwritten letter from Villareyes to Ancajas dated July 12, 1994, informing Ancajas that Villareyes and Tenebro were legally married. 16 To assail the veracity of the marriage contract, petitioner presented (1) a certification issued by the National Statistics Office dated October 7, 1995; 17 and (2) a certification issued by the City Civil Registry of Manila, dated February 3, 1997.18 Both these documents attest that the respective issuing offices have no record of a marriage celebrated between Veronico B. Tenebro and Hilda B. Villareyes on November 10, 1986. To our mind, the documents presented by the defense cannot adequately assail the marriage contract, which in itself would already have been sufficient to establish the existence of a marriage between Tenebro and Villareyes. All three of these documents fall in the category of public documents, and the Rules of Court provisions relevant to public documents are applicable to all. Pertinent to the marriage contract, Section 7 of Rule 130 of the Rules of Court reads as follows: Sec. 7. Evidence admissible when original document is a public record. When the original of a document is in the custody of a public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof (Emphasis ours). This being the case, the certified copy of the marriage contract, issued by a public officer in custody thereof, was admissible as the best evidence of its contents. The marriage contract plainly indicates that a marriage was celebrated between petitioner and Villareyes on November 10, 1986, and it should be accorded the full faith and credence given to public documents. Moreover, an examination of the wordings of the certification issued by the National Statistics Office on October 7, 1995 and that issued by the City Civil Registry of Manila on February 3, 1997 would plainly show that neither document attests as a positive fact that there was no marriage celebrated between Veronico B. Tenebro and Hilda B. Villareyes on November 10, 1986. Rather, the documents merely attest that the respective issuing offices have no record of such a marriage. Documentary evidence as to the absence of a record is quite different from documentary evidence as to the absence of a marriage ceremony, or documentary evidence as to the invalidity of the marriage between Tenebro and Villareyes. The marriage contract presented by the prosecution serves as positive evidence as to the existence of the marriage between Tenebro and Villareyes, which should be given greater credence than documents testifying merely as to absence of any record of the marriage, especially considering that there is absolutely no requirement in the law that a marriage contract needs to be submitted to the civil registrar as a condition precedent for the validity of a marriage. The mere fact that no record of a

marriage exists does not invalidate the marriage, provided all requisites for its validity are present.19 There is no evidence presented by the defense that would indicate that the marriage between Tenebro and Villareyes lacked any requisite for validity, apart from the self-serving testimony of the accused himself. Balanced against this testimony are Villareyes letter, Ancajas testimony that petitioner informed her of the existence of the valid first marriage, and petitioners own conduct, which would all tend to indicate that the first marriage had all the requisites for validity. Finally, although the accused claims that he took steps to verify the non-existence of the first marriage to Villareyes by requesting his brother to validate such purported non-existence, it is significant to note that the certifications issued by the National Statistics Office and the City Civil Registry of Manila are dated October 7, 1995 and February 3, 1997, respectively. Both documents, therefore, are dated after the accuseds marriage to his second wife, private respondent in this case. As such, this Court rules that there was sufficient evidence presented by the prosecution to prove the first and second requisites for the crime of bigamy. The second tier of petitioners defense hinges on the effects of the subsequent judicial declaration20 of the nullity of the second marriage on the ground of psychological incapacity. Petitioner argues that this subsequent judicial declaration retroacts to the date of the celebration of the marriage to Ancajas. As such, he argues that, since his marriage to Ancajas was subsequently declared void ab initio, the crime of bigamy was not committed. 21 This argument is not impressed with merit. Petitioner makes much of the judicial declaration of the nullity of the second marriage on the ground of psychological incapacity, invoking Article 36 of the Family Code. What petitioner fails to realize is that a declaration of the nullity of the second marriage on the ground of psychological incapacity is of absolutely no moment insofar as the States penal laws are concerned. As a second or subsequent marriage contracted during the subsistence of petitioners valid marriage to Villareyes, petitioners marriage to Ancajas would be null and void ab initio completely regardless of petitioners psychological capacity or incapacity. 22 Since a marriage contracted during the subsistence of a valid marriage is automatically void, the nullity of this second marriage is not per se an argument for the avoidance of criminal liability for bigamy. Pertinently, Article 349 of the Revised Penal Code criminalizes "any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings". A plain reading of the law, therefore, would indicate that the provision penalizes the mere act of contracting a second or a subsequent marriage during the subsistence of a valid marriage. Thus, as soon as the second marriage to Ancajas was celebrated on April 10, 1990, during the subsistence of the valid first marriage, the crime of bigamy had already been consummated. To our mind, there is no cogent reason for distinguishing between a subsequent marriage that is null and void purely because it is a second or subsequent marriage, and a subsequent marriage that is null and void on the ground of psychological incapacity, at least insofar as criminal liability for bigamy is concerned. The States penal laws protecting the institution of marriage are in recognition of the sacrosanct character of this special contract between spouses, and punish an individuals deliberate disregard of the permanent character of the special bond between spouses, which petitioner has undoubtedly done.

Moreover, the declaration of the nullity of the second marriage on the ground of psychological incapacity is not an indicator that petitioners marriage to Ancajas lacks the essential requisites for validity. The requisites for the validity of a marriage are classified by the Family Code into essential (legal capacity of the contracting parties and their consent freely given in the presence of the solemnizing officer)23 and formal (authority of the solemnizing officer, marriage license, and marriage ceremony wherein the parties personally declare their agreement to marry before the solemnizing officer in the presence of at least two witnesses).24 Under Article 5 of the Family Code, any male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 3725 and 3826 may contract marriage.27 In this case, all the essential and formal requisites for the validity of marriage were satisfied by petitioner and Ancajas. Both were over eighteen years of age, and they voluntarily contracted the second marriage with the required license before Judge Alfredo B. Perez, Jr. of the City Trial Court of Lapu-lapu City, in the presence of at least two witnesses. Although the judicial declaration of the nullity of a marriage on the ground of psychological incapacity retroacts to the date of the celebration of the marriage insofar as the vinculum between the spouses is concerned, it is significant to note that said marriage is not without legal effects. Among these effects is that children conceived or born before the judgment of absolute nullity of the marriage shall be considered legitimate.28 There is therefore a recognition written into the law itself that such a marriage, although void ab initio, may still produce legal consequences. Among these legal consequences is incurring criminal liability for bigamy. To hold otherwise would render the States penal laws on bigamy completely nugatory, and allow individuals to deliberately ensure that each marital contract be flawed in some manner, and to thus escape the consequences of contracting multiple marriages, while beguiling throngs of hapless women with the promise of futurity and commitment. As such, we rule that the third and fourth requisites for the crime of bigamy are present in this case, and affirm the judgment of the Court of Appeals. As a final point, we note that based on the evidence on record, petitioner contracted marriage a third time, while his marriages to Villareyes and Ancajas were both still subsisting. Although this is irrelevant in the determination of the accuseds guilt for purposes of this particular case, the act of the accused displays a deliberate disregard for the sanctity of marriage, and the State does not look kindly on such activities. Marriage is a special contract, the key characteristic of which is its permanence. When an individual manifests a deliberate pattern of flouting the foundation of the States basic social institution, the States criminal laws on bigamy step in. Under Article 349 of the Revised Penal Code, as amended, the penalty for the crime of bigamy is prision mayor, which has a duration of six (6) years and one (1) day to twelve (12) years. There being neither aggravating nor mitigating circumstance, the same shall be imposed in its medium period. Applying the Indeterminate Sentence Law, petitioner shall be entitled to a minimum term, to be taken from the penalty next lower in degree, i.e., prision correccional which has a duration of six (6) months and one (1) day to six (6) years. Hence, the Court of Appeals correctly affirmed the decision of the trial court which sentenced petitioner to suffer an indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum. WHEREFORE, in view of all the foregoing, the instant petition for review is DENIED. The assailed decision of the Court of Appeals in CA-G.R. CR No. 21636, convicting petitioner Veronico Tenebro of the crime of Bigamy and sentencing him to suffer the indeterminate penalty of four (4) years and

two (2) months of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum, is AFFIRMED in toto. SO ORDERED. Davide, Jr., C.J. (Chairman), Panganiban, Sandoval-Gutierrez, Corona, and Azcuna, JJ., concur. Puno, J., join the opinion of J. Vitug. Vitug, J., see separate opinion. Quisumbing, J., join the dissent in view of void nuptia. Carpio, J., see dissenting opinion. Austria-Martinez, J., join the dissent of J. Carpio. Carpio-Morales, J., join the dissent of J. Carpio. Tinga, J., join the dissent of J. Carpio. Callejo, Sr., J., see separate dissent.

SEPARATE OPINION> VITUG, J.: Veronico Tenebro has been charged with bigamy for contracting, while still being married to Hilda Villareyes, a second marriage with private complainant Leticia Ancajas. Tenebro argues that since his second marriage with Ancajas has ultimately been declared void ab initio on the ground of the latters psychological incapacity, he should be acquitted for the crime of bigamy. The offense of bigamy is committed when one contracts "a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings". 1 Bigamy presupposes a valid prior marriage and a subsequent marriage, contracted during the subsistence of the prior union, which would have been binding were it not for its being bigamous. Would the absolute nullity of either the first or the second marriage, prior to its judicial declaration as being void, constitute a valid defense in a criminal action for bigamy? I believe that, except for a void marriage on account of the psychological incapacity of a party or both parties to the marriage under Article 36 of the Family Code (as so hereinafter explained), the answer must be in the affirmative. Void marriages are inexistent from the very beginning, and no judicial decree is required to establish their nullity. 2 As early as the case of People vs. Aragon 3 this Court has underscored the fact that the Revised Penal Code itself does not, unlike the rule then prevailing in Spain, require the judicial declaration of nullity of a prior void marriage before it can be raised by way of a defense in a criminal case for bigamy. Had the law contemplated otherwise, said the Court, " an express provision to that effect would or should have been inserted in the law, (but that in) its absence, (the courts) are bound by (the) rule of strict interpretation" of penal statutes. In contrast to a voidable marriage which legally exists until judicially annulled (and, therefore, not a defense in a bigamy charge if the second marriage were contracted prior to the decree of annulment)4 the complete nullity, however, of a previously contracted marriage, being void ab initio and legally inexistent, can outrightly be defense in an indictment of bigamy.

It has been held that, by virtue of Article 40 of the Family Code, a person may be convicted of bigamy although the first marriage is ultimately adjudged void ab initio if, at the time the second marriage is contracted, there has as yet no judicial declaration of nullity of the prior marriage. 5 I maintain strong reservations to this ruling. Article 40 of the Family Code reads: "Article 40. The absolute nullity of the previous marriage may be invoked for purposes of remarriage on the basis solely of the final judgment declaring such previous marriage void." It is only "for purpose of remarriage" that the law has expressed that the absolute nullity of the previous marriage may be invoked "on the basis solely of the final judgment declaring such previous marriage void." It may not be amiss to state that under the regime of the Civil Code of 1950, the Supreme Court, in Wiegel vs. Judge Sempio-Diy,6 has held that a subsequent marriage of one of the spouses of a prior void marriage is itself (the subsequent marriage) void if it were contracted before a judicial declaration of nullity of the previous marriage. Although this pronouncement has been abandoned in a later decision of the court in Yap vs. Court of Appeals, 7 the Family Code, however has seen it fit to adopt the Wiegel rule but only for purpose of remarriage which is just to say that the subsequent marriage shall itself be considered void. There is no clear indication to conclude that the Family Code has amended or intended to amend the Revised penal Code or to abandon the settled and prevailing jurisprudence on the matter.8 A void marriage under Article 36 of the Family Code is a class by itself. The provision has been from Canon law primarily to reconcile the grounds for nullity of marriage under civil law with those of church laws.9 The "psychological incapacity to comply" with the essential marital obligations of the spouses is completely distinct from other grounds for nullity which are confined to the essential or formal requisites of a marriage, such as lack of legal capacity or disqualification of the contracting parties, want of consent, absence of a marriage license, or the like. The effects of a marriage attended by psychological incapacity of a party or the parties thereto may be said to have the earmarks of a voidable, more than a void, marriage, remaining to be valid until it is judicially decreed to be a nullity. Thus, Article 54 of the Family Code considers children conceived or born of such a void marriage before its judicial declaration of nullity to be legitimate similar to the rule on a voidable marriage. It is expected, even as I believe it safe to assume, that the spouses rights and obligations, property regime and successional rights would continue unaffected, as if it were a voidable marriage, unless and until the marriage is judicially declared void for basically two reasons: First, psychological incapacity, a newly-added ground for the nullity of a marriage under the Family Code, breaches neither the essential nor the formal requisites of a valid marriages; 10and second, unlike the other grounds for nullity of marriage (i.e., relationship, minority of the parties, lack of license, mistake in the identity of the parties) which are capable of relatively easy demonstration, psychological incapacity, however, being a mental state, may not so readily be as evident. 11 It would have been logical for the Family Code to consider such a marriage explicitly voidable rather than void if it were not for apparent attempt to make it closely coincide with the Canon Law rules and nomenclature. Indeed, a void marriage due to psychological incapacity appears to merely differ from a voidable marriage in that, unlike the latter, it is not convalidated by either cohabitation or prescription. It might be recalled that prior to republic Act No. 8533, further amending the Family Code, an action or defense of absolute nullity of marriage falling under Article 36, celebrated before the effectivity of the Code, could prescribe in ten years following the effectivity of the Family Code. The initial provision of the ten-year period of prescription seems to betray a real consciousness by the framers that marriages falling under Article 36 are truly meant to be inexistent.

Considerations, both logical and practical, would point to the fact that a "void" marriage due to psychological incapacity remains, for all intents and purposes, to be binding and efficacious until judicially declared otherwise. Without such marriage having first been declared a nullity (or otherwise dissolved), a subsequent marriage could constitute bigamy. Thus, a civil case questioning the validity of the first marriage would not be a prejudicial issue much in the same way that a civil case assailing a prior "voidable" marriage (being valid until annulled) would not be a prejudicial question to the prosecution of a criminal offense for bigamy. In cases where the second marriage is void on grounds other than the existence of the first marriage, this Court has declared in a line of cases that no crime of bigamy is committed. 12 The Court has explained that for a person to be held guilty of bigamy, it must, even as it needs only, be shown that the subsequent marriage has all the essential elements of a valid marriage, were it not for the subsisting first union. Hence, where it is established that the second marriage has been contracted without the necessary license and thus void, 13 or that the accused is merely forced to enter into the second (voidable) marriage,14 no criminal liability for the crime of bigamy can attach. In both and like instances, however, the lapses refers to the elements required for contracting a valid marriage. If, then, all the requisites for the perfection of the contract marriage, freely and voluntarily entered into, are shown to be extant, the criminal liability for bigamy can unassailably arise. Since psychological incapacity, upon the other hand, does not relate to an infirmity in the elements, either essential or formal, in contacting a valid marriage, the declaration of nullity subsequent to the bigamous marriage due to that ground, without more, would be inconsequential in a criminal charge for bigamy. The judicial declaration of nullity of a bigamous marriage on the ground of psychological incapacity merely nullifies the effects of the marriage but it does not negate the fact of perfection of the bigamous marriage. Its subsequent declaration of nullity dissolves the relationship of the spouses but, being alien to the requisite conditions for the perfection of the marriage, the judgment of the court is no defense on the part of the offender who had entered into it. Accordingly, I vote to dismiss the petition.

FIRST DIVISION

JAIME F. VILLALON, Petitioner,

G.R. No. 167206 Present:

- versus -

Davide, Jr., C.J. (Chairman), Quisumbing, Ynares-Santiago, Carpio, and Azcuna, JJ.

MA. CORAZON N. VILLALON, Respondent. Promulgated:

November 18, 2005 x x ----------------------------------------------------------------------------------------

DECISION

YNARES-SANTIAGO, J.:

On July 12, 1996, petitioner Jaime F. Villalon filed a petition[1] for the annulment of his marriage to respondent Ma. Corazon N. Villalon before the Regional Trial Court of Pasig City where it was docketed as JDRC No. 3917 and raffled to Branch 69. As ground therefor, petitioner cited his psychological incapacity which he claimed existed even prior to his marriage.

According to petitioner, the manifestations of his psychological incapacity were: (a) his chronic refusal to maintain harmonious family relations and his lack of interest in having a normal married life; (b) his immaturity and irresponsibility in refusing to accept the essential obligations of marriage as husband to his wife; (c) his desire for other women and a life unchained from any spousal obligation; and (d) his false assumption of the fundamental obligations of companionship and consortium towards respondent. Petitioner thus prayed that his marriage to respondent be declared null and void ab initio.

On September 25, 1996, respondent filed an [2] answer denying petitioners allegations. She asserted that her 18-year marriage to petitioner has been fruitful and characterized by joy, contentment and hopes for more growth in their relationship and that their marital squabbles were normal based on community standards. Petitioners success in his professional life aided him in performing his role as husband, father, and provider. Respondent claimed that petitioners commitment to his paternal and marital responsibilities was beyond reproach.

On October 7, 1996, the trial court directed the prosecutor to conduct an investigation on whether there was collusion between the parties.[3] The report submitted to the trial court stated that there was no such collusion.[4]

The Office of the Solicitor General (OSG) subsequently entered its appearance in behalf of the Republic of the Philippines[5] and submitted an opposition[6] to the petition on September 23, 1997. Thereafter, trial on the merits ensued.

Petitioner testified that he met respondent sometime in the early seventies when he applied for a job at Metrobank, where respondent was employed as a foreign exchange trader. They began dating in 1975 and had a romantic relationship soon thereafter.[7] After going steady for about two years, petitioner and respondent were married at the San Pancracio Chapel in Paco, Manila on April 22, 1978. Petitioner claimed that he married respondent because he believed that it was the right time to raise a family and that she would be a good mother to his children. [8]

In the middle of 1993, petitioner decided to separate from respondent. According to him, their marriage reached a point where there was no longer any communication between them and their relationship became devoid of love, affection, support and respect due to his constant urge to see other women. [9] Moreover, their relationship tended to be one-sided since respondent was unresponsive and hardly ever showed her love, needs, wants and emotions.[10]

Petitioner admitted that on certain occasions before his marriage, he had two girlfriends at the same time. He also saw other women even when he became engaged to and, later on, married respondent.[11] Respondent learned of his affairs but reacted in a subdued manner.[12] Petitioner surmised that it was respondents nature to be silent and withdrawn. [13]

In January 1994, petitioner left the conjugal abode and moved into an apartment located five to ten minutes away. Before he left, he and his wife spoke to their three children who, at that time, were 14, 8, and 6 years old, respectively. [14] Petitioner consulted a child psychologist before talking to his

children.[15] He considered himself as a good and loving father and described his relationship with the children as great. [16]

Despite the separation, petitioner would regularly visit his children who stayed with him on alternate weekends. He voluntarily gave monthly support to the children and paid for their tuition fees. He also shouldered the childrens medical expenses as well as the maintenance and miscellaneous fees for the conjugal abode.[17]

Petitioner presented Dr. Natividad Dayan, a clinical psychologist, to testify on his alleged psychological disorder of Narcissistic Histrionic Personality Disorder with Casanova Complex. Dr. Dayan described the said disorder as a pervasive maladaptation in terms of interpersonal and occupational functioning with main symptoms of grand ideation about oneself, self-centeredness, thinking he is unique and wanting to always be the one followed, the I personality. A person afflicted with this disorder believes that he is entitled to gratify his emotional and sexual feelings and thus engages in serial infidelities. Likewise, a person with Casanova Complex exhibits habitual adulterous behavior and goes from one relationship to another.[18]

Dr. Dayan submitted a psychological report on both petitioner and respondent based on clinical interviews and psychological tests.[19]

Respondent testified that she first learned of her husbands infidelity in 1980. She discovered that he was having an affair with one of her friends who worked as a trader in her husbands

company. The affair was cut short when the woman left for the United States to work. Eventually, she and petitioner were able to rebuild their relationship and overcome the crisis. [20]

When asked about the womanizing ways of her husband, respondent averred that she did not know whether her husbands acts could be deemed womanizing since there were only two instances of infidelity which occurred 13 years apart. [21] She also theorized that petitioner wanted to have their marriage annulled so he could marry her old friend.[22] She stated that she has not closed her doors to petitioner but the latter would have to give up his extra-marital relationship.[23]

To controvert the findings of petitioners expert witness, respondent presented a psychiatrist, Dr. Cecilia Villegas, who testified that Dr. Dayans findings were incomplete because a team approach was necessary in evaluating an individuals personality. An evaluation of ones psychological capacity requires the expertise of a psychiatrist and social worker. [24]

Upon order of the trial court, the parties submitted their respective memoranda.[25] The OSG likewise filed a [26] certification pursuant to Rep. of the Phils. v. Court of Appeals . [27] In due course, the trial court rendered judgment as follows:

WHEREFORE, judgment is hereby rendered declaring the marriage between petitioner and respondent Ma. Corazon N. Villalon celebrated on April 22, 1978, as null and void ab initio on the ground of psychological incapacity on the part of the petitioner pursuant to Article 36 of the Family Code.

Accordingly, the conjugal assets and liabilities are hereby ordered to be liquidated and the dissolution of the conjugal partnership of gains be effected in accordance with Article 129 of the Family Code.

As petitioner manifested that he wishes to maintain the custody arrangement now existing, the custody of the three (3) children Miguel Alberto, Fernando Alfonso, and Ma. Joanna Victoria shall remain with the respondent subject to visitation rights of petitioner as may be mutually agreed upon by the parties.

In order to cancel the registration of the Marriage Contract between herein parties appearing in the Book of Marriage of the city of Manila, let copies of this Decision be furnished to the Local Civil Registrar of Manila as well as the National Census and Statistics Office (NCSO), CRD Legal Department, EDSA, Quezon City.

SO ORDERED.[28]

Respondent and the OSG seasonably filed an appeal from the decision of the trial court, docketed as CA-G.R. CV No. 74354. On March 23, 2004, the Court of Appeals rendered a Decision, the dispositive part of which reads:

WHEREFORE, in light of the foregoing, the assailed decision dated November 12, 2001 is REVERSED and SET

ASIDE, and a new judgment entered DISMISSING the petitioners petition for lack of merit.

SO ORDERED.[29]

Contrary to the trial courts findings, the appellate court held that petitioner failed to prove the juridical antecedence, gravity and incurability of his alleged psychological incapacity. Although Dr. Dayan testified that petitioners psychological incapacity preceded the marriage, she failed to give sufficient basis for such a finding. Dr. Dayan also stated that parental marital instability was the root cause of petitioners psychological incapacity but failed to elaborate thereon or link the two variables. Moreover, petitioners sexual infidelity was made to appear as symptomatic of a grave psychological disorder when, in reality, the same merely resulted from a general dissatisfaction with the marriage.

Petitioner filed a motion for reconsideration of the appellate courts decision which was denied in an order dated October 28, 2004.[30] Thus, petitioner took this recourse under Rule 45 of the Rules of Court, asserting that the Court of Appeals erred in finding that he failed to prove his psychological incapacity under Article 36 of the Family Code.

The petition has no merit.

The totality of the evidence in this case does not support a finding that petitioner is psychologically incapacitated to fulfill his marital obligations. On the contrary, what is evident is the fact that petitioner was a good husband to respondent for a

substantial period of time prior to their separation, a loving father to their children and a good provider of the family. Although he engaged in marital infidelity in at least two occasions, the same does not appear to be symptomatic of a grave psychological disorder which rendered him incapable of performing his spousal obligations. The same appears as the result of a general dissatisfaction with his marriage rather than a psychological disorder rooted in petitioners personal history.

In Santos v. Court of Appeals,[31] the court held that psychological incapacity, as a ground for the declaration of nullity of a marriage, must be characterized by juridical antecedence, gravity and incurability.[32] It should

... [R]efer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of psychological incapacity to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. This psychologic condition must exist at the time the marriage is celebrated....[33]

In the case at bar, although Dr. Dayan testified that petitioner suffered from Narcissistic Histrionic Personality Disorder with Casanova Complex even before the marriage and thus had

the tendency to cheat on his wife, such conclusion was not sufficiently backed by concrete evidence showing that petitioner indeed had several affairs and finds it difficult to be faithful. Except for petitioners general claim that on certain occasions he had two girlfriends at the same time, no details or explanations were given of such circumstances that would demonstrate petitioners inability to be faithful to respondent either before or at the time of the celebration of their marriage.

Similarly, we agree with the Court of Appeals that petitioner failed to establish the incurability and gravity of his alleged psychological disorder. While Dr. Dayan described the symptoms of one afflicted with Narcissistic Histrionic Personality Disorder as self-centered, characterized by grandiose ideation and lack of empathy in relating to others, and one with Casanova Complex as a serial adulterer, the evidence on record betrays the presence of any of these symptoms.

Moreover, we are not convinced that petitioner is a serial or habitual adulterer, as he wants the court to believe. As stated by respondent herself, it cannot be said that two instances of infidelity which occurred 13 years apart could be deemed womanizing, especially considering that these instances involved the same woman. In fact, at the time of respondents testimony, petitioners illicit relationship has been going on for six years. This is not consistent with the symptoms of a person suffering from Casanova Complex who, according to Dr. Dayan, is one who jumps from one relationship to another.

Sexual infidelity, by itself, is not sufficient proof that petitioner is suffering from psychological incapacity. It must be shown that the acts of unfaithfulness are manifestations of a

disordered personality which make petitioner completely unable to discharge the essential obligations of marriage. [34] The evidence on record fails to convince us that petitioners marital indiscretions are symptomatic of psychological incapacity under Article 36 of the Family Code. On the contrary, the evidence reveals that petitioner was a good husband most of the time when he was living with respondent, a loving father to his children as well as a good provider.

In Rep. of the Phils. v. Court of Appeals ,[35] we held that the cause of the alleged psychological incapacity must be identified as a psychological illness and its incapacitating nature fully explained. Further

The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage.[36]

In the instant case, it appears that petitioner has simply lost his love for respondent and has consequently refused to stay married to her. As revealed by his own testimony, petitioner felt that he was no longer part of respondents life and that the latter did not need or want him.[37] Respondents uncommunicative and withdrawn nature apparently led to petitioners discontentment with the marital relationship.

However, as held in Rep. of the Phils. v. Court of Appeals , refusal to comply with the essential obligations of marriage is not psychological incapacity within the meaning of the law. The policy of the State is to protect and strengthen the family as the basic social institution and marriage is the foundation of the family. Thus, any doubt should be resolved in favor of validity of the marriage.[39]
[38]

WHEREFORE, the petition is DENIED. The March 23, 2004 Decision of the Court of Appeals in CA-G.R. CV No. 74354 and its October 28, 2004 Resolution, are AFFIRMED.

SO ORDERED.

CONSUELO YNARES-SANTIAGO Associate Justice FIRST DIVISION

[G.R. No. 127358. March 31, 2005]

NOEL BUENAVENTURA, petitioner, vs. COURT OF APPEALS and ISABEL LUCIA SINGH BUENAVENTURA, respondents.

[G.R. No. 127449. March 31, 2005]

NOEL BUENAVENTURA, petitioner, vs. COURT OF APPEALS and ISABEL LUCIA SINGH BUENAVENTURA, respondents. DECISION
AZCUNA, J.:

These cases involve a petition for the declaration of nullity of marriage, which was filed by petitioner Noel Buenaventura on July 12, 1992, on the ground of the alleged psychological incapacity of his wife, Isabel Singh Buenaventura, herein respondent. After respondent filed her answer, petitioner, with leave of court, amended his petition by stating that both he and his wife were psychologically incapacitated to comply with the essential obligations of marriage. In response, respondent filed an amended answer denying the allegation that she was psychologically incapacitated.
[1]

On July 31, 1995, the Regional Trial Court promulgated a Decision, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered as follows:
1) Declaring and decreeing the marriage entered into between plaintiff Noel A. Buenaventura and defendant Isabel Lucia Singh Buenaventura on July 4, 1979, null and void ab initio; Ordering the plaintiff to pay defendant moral damages in the amount of 2.5 million pesos and exemplary damages of 1 million pesos with 6% interest from the date of this decision plus attorneys fees of P100,000.00; Ordering the plaintiff to pay the defendant expenses of litigation of P50,000.00, plus costs; Ordering the liquidation of the assets of the conjugal partnership property[,] particularly the plaintiffs separation/retirement benefits received from the Far East Bank [and] Trust Company[,] by ceding, giving and paying to her fifty percent (50%) of the net amount of P3,675,335.79 or P1,837,667.89 together with 12% interest per annum from the date of this decision and one-half (1/2) of his outstanding shares of stock with Manila Memorial Park and Provident Group of Companies; Ordering him to give a regular support in favor of his son Javy Singh Buenaventura in the amount of P15,000.00 monthly, subject to modification as the necessity arises; Awarding the care and custody of the minor Javy Singh Buenaventura to his mother, the herein defendant; and Hereby authorizing the defendant to revert back to the use of her maiden family name Singh.

2)

3) 4)

5)

6) 7)

Let copies of this decision be furnished the appropriate civil registry and registries of properties.

SO ORDERED.

[2]

Petitioner appealed the above decision to the Court of Appeals. While the case was pending in the appellate court, respondent filed a motion to increase the P15,000 monthly support pendente lite of their son Javy Singh Buenaventura. Petitioner filed an opposition thereto, praying that it be denied or that such incident be set for oral argument.
[3]

On September 2, 1996, the Court of Appeals issued a Resolution increasing the support pendente lite to P20,000. Petitioner filed a motion for reconsideration questioning the said Resolution.
[4] [5]

On October 8, 1996, the appellate court promulgated a Decision dismissing petitioners appeal for lack of merit and affirming in toto the trial courts decision. Petitioner filed a motion for reconsideration which was denied. From the abovementioned Decision, petitioner filed the instant Petition for Review on Certiorari.
[6]

On November 13, 1996, through another Resolution, the Court of Appeals denied petitioners motion for reconsideration of the September 2, 1996 Resolution, which increased the monthly support for the son. Petitioner filed a Petition for Certiorari to question these two Resolutions.
[7]

On July 9, 1997, the Petition for Review on Certiorari and the Petition for Certiorari were ordered consolidated by this Court.
[8] [9] [10]

In the Petition for Review on Certiorari petitioner claims that the Court of Appeals decided the case not in accord with law and jurisprudence, thus:

1. WHEN IT AWARDED DEFENDANT-APPELLEE MORAL DAMAGES IN THE AMOUNT OF P2.5 MILLION AND EXEMPLARY DAMAGES OF P1 MILLION, WITH 6% INTEREST FROM THE DATE OF ITS DECISION, WITHOUT ANY LEGAL AND MORAL BASIS; 2. WHEN IT AWARDED P100,000.00 ATTORNEYS FEES AND P50,000.00 EXPENSES OF LITIGATION, PLUS COSTS, TO DEFENDANT-APPELLEE, WITHOUT FACTUAL AND LEGAL BASIS; 3. WHEN IT ORDERED PLAINTIFF-APPELLANT NOEL TO PAY DEFENDANT-APPELLEE ONE-HALF OR P1,837,667.89 OUT OF HIS RETIREMENT BENEFITS RECEIVED FROM THE FAR EAST BANK AND TRUST CO., WITH 12% INTEREST THEREON FROM THE DATE OF ITS DECISION, NOTWITHSTANDING THAT SAID RETIREMENT BENEFITS ARE GRATUITOUS AND EXCLUSIVE PROPERTY OF NOEL, AND ALSO TO DELIVER TO DEFENDANT-APPELLEE ONE-HALF OF HIS SHARES OF STOCK WITH THE MANILA MEMORIAL PARK AND THE PROVIDENT GROUP OF COMPANIES, ALTHOUGH SAID SHARES OF STOCK WERE

ACQUIRED BY NOEL BEFORE HIS MARRIAGE TO RESPONDENT ISABEL AND ARE, THEREFORE, AGAIN HIS EXCLUSIVE PROPERTIES; AND 4. WHEN IT AWARDED EXCLUSIVE CARE AND CUSTODY OVER THE PARTIES MINOR CHILD TO DEFENDANT-APPELLEE WITHOUT ASKING THE CHILD (WHO WAS ALREADY 13 YEARS OLD AT THAT TIME) HIS CHOICE AS TO WHOM, BETWEEN HIS TWO PARENTS, HE WOULD LIKE TO HAVE CUSTODY OVER HIS PERSON.
[11]

In the Petition for Certiorari, petitioner advances the following contentions:

THE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION WHEN IT REFUSED TO SET RESPONDENTS MOTION FOR INCREASED SUPPORT FOR THE PARTIES SON FOR HEARING.
[12]

THERE WAS NO NEED FOR THE COURT OF APPEALS TO INCREASE JAVYS MONTHLY SUPPORT OF P15,000.00 BEING GIVEN BY PETITIONER EVEN AT PRESENT PRICES.
[13]

IN RESOLVING RESPONDENTS MOTION FOR THE INCREASE OF JAVYS SUPPORT, THE COURT OF APPEALS SHOULD HAVE EXAMINED THE LIST OF EXPENSES SUBMITTED BY RESPONDENT IN THE LIGHT OF PETITIONERS OBJECTIONS THERETO, INSTEAD OF MERELY ASSUMING THAT JAVY IS ENTITLED TO A P5,000 INCREASE IN SUPPORT AS SAID AMOUNT IS TOO MINIMAL.
[14]

LIKEWISE, THE COURT OF APPEALS SHOULD HAVE GIVEN PETITIONER AN OPPORTUNITY TO PROVE HIS PRESENT INCOME TO SHOW THAT HE CANNOT AFFORD TO INCREASE JAVYS SUPPORT.
[15]

With regard to the first issue in the main case, the Court of Appeals articulated:

On Assignment of Error C, the trial court, after findings of fact ascertained from the testimonies not only of the parties particularly the defendant-appellee but likewise, those of the two psychologists, awarded damages on the basis of Articles 21, 2217 and 2229 of the Civil Code of the Philippines. Thus, the lower court found that plaintiff-appellant deceived the defendant-appellee into marrying him by professing true love instead of revealing to her that he was under heavy parental pressure to marry and that because of pride he married defendant-appellee; that he was not ready to enter into marriage as in fact his career was and always would be his first priority; that he was unable to relate not only to

defendant-appellee as a husband but also to his son, Javy, as a father; that he had no inclination to make the marriage work such that in times of trouble, he chose the easiest way out, that of leaving defendantappellee and their son; that he had no desire to keep defendant-appellee and their son as proved by his reluctance and later, refusal to reconcile after their separation; that the aforementioned caused defendant-appellee to suffer mental anguish, anxiety, besmirched reputation, sleepless nights not only in those years the parties were together but also after and throughout their separation. Plaintiff-appellant assails the trial courts decision on the ground that unlike those arising from a breach in ordinary contracts, damages arising as a consequence of marriage may not be awarded. While it is correct that there is, as yet, no decided case by the Supreme Court where damages by reason of the performance or nonperformance of marital obligations were awarded, it does not follow that no such award for damages may be made. Defendant-appellee, in her amended answer, specifically prayed for moral and exemplary damages in the total amount of 7 million pesos. The lower court, in the exercise of its discretion, found full justification of awarding at least half of what was originally prayed for. We find no reason to disturb the ruling of the trial court.
[16]

The award by the trial court of moral damages is based on Articles 2217 and 21 of the Civil Code, which read as follows:

ART. 2217. Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendants wrongful act or omission. ART. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.
The trial court referred to Article 21 because Article 2219 of the Civil Code enumerates the cases in which moral damages may be recovered and it mentions Article 21 as one of the instances. It must be noted that Article 21 states that the individual must willfully cause loss or injury to another. There is a need that the act is willful and hence done in complete freedom. In granting moral damages, therefore, the trial court and the Court of Appeals could not but have assumed that the acts on which the moral damages were based were done willfully and freely, otherwise the grant of moral damages would have no leg to stand on.
[17]

On the other hand, the trial court declared the marriage of the parties null and void based on Article 36 of the Family Code, due to psychological incapacity of the petitioner, Noel Buenaventura. Article 36 of the Family Code states:

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

. . . no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of "psychological incapacity" to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. . . .
[18]

The Court of Appeals and the trial court considered the acts of the petitioner after the marriage as proof of his psychological incapacity, and therefore a product of his incapacity or inability to comply with the essential obligations of marriage. Nevertheless, said courts considered these acts as willful and hence as grounds for granting moral damages. It is contradictory to characterize acts as a product of psychological incapacity, and hence beyond the control of the party because of an innate inability, while at the same time considering the same set of acts as willful. By declaring the petitioner as psychologically incapacitated, the possibility of awarding moral damages on the same set of facts was negated. The award of moral damages should be predicated, not on the mere act of entering into the marriage, but on specific evidence that it was done deliberately and with malice by a party who had knowledge of his or her disability and yet willfully concealed the same. No such evidence appears to have been adduced in this case. For the same reason, since psychological incapacity means that one is truly incognitive of the basic marital covenants that one must assume and discharge as a consequence of marriage, it removes the basis for the contention that the petitioner purposely deceived the private respondent. If the private respondent was deceived, it was not due to a willful act on the part of the petitioner. Therefore, the award of moral damages was without basis in law and in fact. Since the grant of moral damages was not proper, it follows that the grant of exemplary damages cannot stand since the Civil Code provides that exemplary damages are imposed in addition to moral, temperate, liquidated or compensatory damages.
[19]

With respect to the grant of attorneys fees and expenses of litigation the trial court explained, thus:

Regarding Attorneys fees, Art. 2208 of the Civil Code authorizes an award of attorneys fees and expenses of litigation, other than judicial costs, when as in this case the plaintiffs act or omission has compelled the defendant to litigate and to incur expenses of litigation to protect her interest (par. 2), and where the Court deems it just and equitable that attorneys fees and expenses of litigation should be recovered. (par. 11)
[20]

The Court of Appeals reasoned as follows:

On Assignment of Error D, as the award of moral and exemplary damages is fully justified, the award of attorneys fees and costs of litigation by the trial court is likewise fully justified.
[21]

The acts or omissions of petitioner which led the lower court to deduce his psychological incapacity, and his act in filing the complaint for the annulment of his marriage cannot be considered as unduly compelling the private respondent to litigate, since both are grounded on petitioners psychological incapacity, which as explained above is a mental incapacity causing an utter inability to comply with the obligations of marriage. Hence, neither can be a ground for attorneys fees and litigation expenses. Furthermore, since the award of moral and exemplary damages is no longer justified, the award of attorneys fees and expenses of litigation is left without basis. Anent the retirement benefits received from the Far East Bank and Trust Co. and the shares of stock in the Manila Memorial Park and the Provident Group of Companies, the trial court said:

The third issue that must be resolved by the Court is what to do with the assets of the conjugal partnership in the event of declaration of annulment of the marriage. The Honorable Supreme Court has held that the declaration of nullity of marriage carries ipso facto a judgment for the liquidation of property (Domingo v. Court of Appeals, et al., G.R. No. 104818, Sept. 17, 1993, 226 SCRA, pp. 572 573, 586). Thus, speaking through Justice Flerida Ruth P. Romero, it was ruled in this case: When a marriage is declared void ab initio, the law states that the final judgment therein shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children and the delivery of their presumptive legitimes, unless such matters had been adjudicated in the previous proceedings. The parties here were legally married on July 4, 1979, and therefore, all property acquired during the marriage, whether the acquisition appears to have been made,

contracted or registered in the name of one or both spouses, is presumed to be conjugal unless the contrary is proved (Art. 116, New Family Code; Art. 160, Civil Code). Art. 117 of the Family Code enumerates what are conjugal partnership properties. Among others they are the following: 1) Those acquired by onerous title during the marriage at the expense of the common fund, whether the acquisition be for the partnership, or for only one of the spouses; 2) Those obtained from the labor, industry, work or profession of either or both of the spouses; 3) The fruits, natural, industrial, or civil, due or received during the marriage from the common property, as well as the net fruits from the exclusive property of each spouse. ... Applying the foregoing legal provisions, and without prejudice to requiring an inventory of what are the parties conjugal properties and what are the exclusive properties of each spouse, it was disclosed during the proceedings in this case that the plaintiff who worked first as Branch Manager and later as Vice-President of Far East Bank & Trust Co. received separation/retirement package from the said bank in the amount of P3,701,500.00 which after certain deductions amounting to P26,164.21 gave him a net amount of P3,675,335.79 and actually paid to him on January 9, 1995 (Exhs. 6, 7, 8, 9, 10, 11). Not having shown debts or obligations other than those deducted from the said retirement/separation pay, under Art. 129 of the Family Code The net remainder of the conjugal partnership properties shall constitute the profits, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlement or unless there has been a voluntary waiver or forfeiture of such share as provided in this Code. In this particular case, however, there had been no marriage settlement between the parties, nor had there been any voluntary waiver or valid forfeiture of the defendant wifes share in the conjugal partnership properties. The previous cession and transfer by the plaintiff of his one-half (1/2) share in their residential house and lot covered by T.C.T. No. S-35680 of the Registry of Deeds of Paraaque, Metro Manila, in favor of the defendant as stipulated in their Compromise Agreement dated July 12, 1993, and approved by the Court in its Partial Decision dated August 6, 1993, was actually intended to be in full settlement of any and all demands for past support. In reality, the defendant wife had allowed some concession in favor of the plaintiff husband, for were the law strictly to be followed, in the process of liquidation of the conjugal assets, the conjugal dwelling and the lot on which it is situated shall, unless otherwise agreed upon by the parties, be adjudicated to the spouse with whom their only child has chosen to remain (Art. 129, par. 9). Here, what was done was one-half (1/2) portion of the house was ceded to defendant so that she will not claim anymore for

past unpaid support, while the other half was transferred to their only child as his presumptive legitime. Consequently, nothing yet has been given to the defendant wife by way of her share in the conjugal properties, and it is but just, lawful and fair, that she be given one-half (1/2) share of the separation/retirement benefits received by the plaintiff the same being part of their conjugal partnership properties having been obtained or derived from the labor, industry, work or profession of said defendant husband in accordance with Art. 117, par. 2 of the Family Code. For the same reason, she is entitled to onehalf (1/2) of the outstanding shares of stock of the plaintiff husband with the Manila Memorial Park and the Provident Group of Companies.
[22]

The Court of Appeals articulated on this matter as follows:

On Assignment of Error E, plaintiff-appellant assails the order of the trial court for him to give one-half of his separation/retirement benefits from Far East Bank & Trust Company and half of his outstanding shares in Manila Memorial Park and Provident Group of Companies to the defendant-appellee as the latters share in the conjugal partnership. On August 6, 1993, the trial court rendered a Partial Decision approving the Compromise Agreement entered into by the parties. In the same Compromise Agreement, the parties had agreed that henceforth, their conjugal partnership is dissolved. Thereafter, no steps were taken for the liquidation of the conjugal partnership. Finding that defendant-appellee is entitled to at least half of the separation/retirement benefits which plaintiff-appellant received from Far East Bank & Trust Company upon his retirement as Vice-President of said company for the reason that the benefits accrued from plaintiffappellants service for the bank for a number of years, most of which while he was married to defendant-appellee, the trial court adjudicated the same. The same is true with the outstanding shares of plaintiff-appellant in Manila Memorial Park and Provident Group of Companies. As these were acquired by the plaintiff-appellant at the time he was married to defendant-appellee, the latter is entitled to one-half thereof as her share in the conjugal partnership. We find no reason to disturb the ruling of the trial court.
[23]

Since the present case does not involve the annulment of a bigamous marriage, the provisions of Article 50 in relation to Articles 41, 42 and 43 of the Family Code, providing for the dissolution of the absolute community or conjugal partnership of gains, as the case may be, do not apply. Rather, the general rule applies, which is that in case a marriage is declared void ab initio, the property regime applicable and to be liquidated, partitioned and distributed is that of equal co-ownership.

In Valdes v. Regional Trial Court, Branch 102, Quezon City , this Court expounded on the consequences of a void marriage on the property relations of the spouses and specified the applicable provisions of law:
[24]

The trial court correctly applied the law. In a void marriage, regardless of the cause thereof, the property relations of the parties during the period of cohabitation is governed by the provisions of Article 147 or Article 148, such as the case may be, of the Family Code. Article 147 is a remake of Article 144 of the Civil Code as interpreted and so applied in previous cases; it provides: ART. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership. In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household. Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation. When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation. This peculiar kind of co-ownership applies when a man and a woman, suffering no legal impediment to marry each other, so exclusively live together as husband and wife under a void marriage or without the benefit of marriage. The term "capacitated" in the provision (in the first paragraph of the law) refers to the legal capacity of a party to contract marriage, i.e., any "male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38" of the Code.

Under this property regime, property acquired by both spouses through their work and industry shall be governed by the rules on equal co-ownership. Any property acquired during the union is prima facie presumed to have been obtained through their joint efforts. A party who did not participate in the acquisition of the property shall still be considered as having contributed thereto jointly if said party's "efforts consisted in the care and maintenance of the family household." Unlike the conjugal partnership of gains, the fruits of the couple's separate property are not included in the co-ownership. Article 147 of the Family Code, in substance and to the above extent, has clarified Article 144 of the Civil Code; in addition, the law now expressly provides that (a) Neither party can dispose or encumber by act[s] inter vivos [of] his or her share in co-ownership property, without the consent of the other, during the period of cohabitation; and (b) In the case of a void marriage, any party in bad faith shall forfeit his or her share in the co-ownership in favor of their common children; in default thereof or waiver by any or all of the common children, each vacant share shall belong to the respective surviving descendants, or still in default thereof, to the innocent party. The forfeiture shall take place upon the termination of the cohabitation or declaration of nullity of the marriage. In deciding to take further cognizance of the issue on the settlement of the parties' common property, the trial court acted neither imprudently nor precipitately; a court which had jurisdiction to declare the marriage a nullity must be deemed likewise clothed with authority to resolve incidental and consequential matters. Nor did it commit a reversible error in ruling that petitioner and private respondent own the "family home" and all their common property in equal shares, as well as in concluding that, in the liquidation and partition of the property owned in common by them, the provisions on co-ownership under the Civil Code, not Articles 50, 51 and 52, in relation to Articles 102 and 129, of the Family Code, should aptly prevail. The rules set up to govern the liquidation of either the absolute community or the conjugal partnership of gains, the property regimes recognized for valid and voidable marriages (in the latter case until the contract is annulled), are irrelevant to the liquidation of the co-ownership that exists between common-law spouses. The first paragraph of Article 50 of the Family Code, applying paragraphs (2), (3), (4) and (5) of Article 43, relates only, by its explicit terms, to voidable marriages and, exceptionally, to void marriages under Article 40 of the Code, i.e., the declaration of nullity of a subsequent marriage contracted by a spouse of a prior void marriage before the latter is judicially declared

void. The latter is a special rule that somehow recognizes the philosophy and an old doctrine that void marriages are inexistent from the very beginning and no judicial decree is necessary to establish their nullity. In now requiring for purposes of remarriage, the declaration of nullity by final judgment of the previously contracted void marriage, the present law aims to do away with any continuing uncertainty on the status of the second marriage. It is not then illogical for the provisions of Article 43, in relation to Articles 41 and 42, of the Family Code, on the effects of the termination of a subsequent marriage contracted during the subsistence of a previous marriage to be made applicable pro hac vice. In all other cases, it is not to be assumed that the law has also meant to have coincident property relations, on the one hand, between spouses in valid and voidable marriages (before annulment) and, on the other, between common-law spouses or spouses of void marriages, leaving to ordain, in the latter case, the ordinary rules on co-ownership subject to the provision of Article 147 and Article 148 of the Family Code. It must be stressed, nevertheless, even as it may merely state the obvious, that the provisions of the Family Code on the "family home," i.e., the provisions found in Title V, Chapter 2, of the Family Code, remain in force and effect regardless of the property regime of the spouses.
[25]

Since the properties ordered to be distributed by the court a quo were found, both by the trial court and the Court of Appeals, to have been acquired during the union of the parties, the same would be covered by the co-ownership. No fruits of a separate property of one of the parties appear to have been included or involved in said distribution. The liquidation, partition and distribution of the properties owned in common by the parties herein as ordered by the court a quoshould, therefore, be sustained, but on the basis of co-ownership and not of the regime of conjugal partnership of gains. As to the issue on custody of the parties over their only child, Javy Singh Buenaventura, it is now moot since he is about to turn twenty-five years of age on May 27, 2005 and has, therefore, attained the age of majority.
[26]

With regard to the issues on support raised in the Petition for Certiorari, these would also now be moot, owing to the fact that the son, Javy Singh Buenaventura, as previously stated, has attained the age of majority. WHEREFORE, the Decision of the Court of Appeals dated October 8, 1996 and its Resolution dated December 10, 1996 which are contested in the Petition for Review (G.R. No. 127449), are hereby MODIFIED, in that the award of moral and exemplary damages, attorneys fees, expenses of litigation and costs are deleted. The order giving respondent one-half of the retirement benefits of petitioner from Far East Bank and Trust Co. and one-half of petitioners shares of stock in Manila Memorial Park and in the Provident Group of Companies is sustained but on the basis of the liquidation, partition and distribution of the co-ownership and not of the regime of conjugal partnership of gains. The rest of said Decision and Resolution are AFFIRMED.

The Petition for Review on Certiorari (G.R. No. 127358) contesting the Court of Appeals Resolutions of September 2, 1996 and November 13, 1996 which increased the support pendente lite in favor of the parties son, Javy Singh Buenaventura, is now MOOT and ACADEMIC and is, accordingly, DISMISSED. No costs. SO ORDERED. Davide, JJ., concur. Jr., C.J., (Chairman), Quisumbing, Ynares-Santiago, and Carpio,

THIRD DIVISION ERIC JONATHAN YU, Petitioner, G.R. No. 164915 Present: -versusQUISUMBING,Chairperson, CARPIO, CARPIO MORALES, and TINGA, JJ. Respondent. Promulgated: March 10, 2006
x--------------------------------------------------------------------x

CAROLINE T. YU,

DECISION CARPIO MORALES, J.: On January 11, 2002, Eric Jonathan Yu (petitioner) filed a petition for habeas corpus before the Court of Appeals alleging that his estranged wife Caroline Tanchay-Yu (respondent) unlawfully withheld from him the custody of

their minor child Bianca. The petition, which included a prayer for the award to him of the sole custody of Bianca, was docketed as CA-G.R. SP No. 68460. Subsequently or on March 3, 2002, respondent filed a petition against petitioner before the Pasig Regional Trial Court (RTC) for declaration of nullity of marriage and dissolution of the absolute community of property. The petition included a prayer for the award to her of the sole custody of Bianca and for the fixing of schedule of petitioners visiting rights subject only to the final and executory judgment of the Court of Appeals in CA-G.R. SP No. 68460. In the meantime, the appellate court, by Resolution of March 21, 2002, awarded petitioner full custody of Bianca during the pendency of the habeas corpus case, with full visitation rights of respondent. Petitioner and respondent later filed on April 5, 2002 before the appellate court a Joint Motion to Approve Interim Visitation Agreement which was, by Resolution of April 24, 2002, approved. On April 18, 2002, respondent filed before the appellate court a Motion for the Modification of her visiting rights under the Interim Visitation Agreement. To the Motion, petitioner filed an Opposition with Motion to Cite Respondent for Contempt of Court in light of her filing of the petition for declaration of nullity of marriage before the Pasig RTC which, so he contended, constituted forum shopping. By Resolution of July 5, 2002, the appellate court ordered respondent and her counsel to make the necessary amendment in her petition for declaration of nullity of marriage before the Pasig City RTC in so far as the custody aspect is concerned, under pain of contempt.

In compliance with the appellate courts Resolution of July 5, 2002, respondent filed a Motion to Admit Amended Petition before the Pasig RTC. She, however, later filed in December 2002 a Motion to Dismiss her petition, without prejudice, on the ground that since she started residing and conducting business at her new address at Pasay City, constraints on resources and her very busy schedule rendered her unable to devote the necessary time and attention to the petition. The Pasig RTC granted respondents motion and accordingly dismissed the petition without prejudice, by Order of March 28, 2003. On June 12, 2003, petitioner filed his own petition for declaration of nullity of marriage and dissolution of the absolute community of property before the Pasig RTC, docketed as JDRC Case No. 6190, with prayer for the award to him of the sole custody of Bianca, subject to the final resolution by the appellate court of his petition for habeas corpus. The appellate court eventually dismissed the habeas corpus petition, by Resolution of July 3, 2003, for having become moot and academic, the restraint on the liberty of the person alleged to be in restraint [having been] lifted. In the meantime, respondent filed on July 24, 2003 before the Pasay RTC a petition for habeas corpus, which she denominated as Amended Petition, praying for, among other things, the award of the sole custody to her of Bianca or, in the alternative, pending the hearing of the petition, the issuance of an order replicating and reiterating the enforceability of the Interim Visiting Agreement which was approved by the appellate court. The petition was docketed as SP Proc. No. 03-0048. Not to be outdone, petitioner filed on July 25, 2003 before the Pasig RTC in his petition for declaration of nullity of marriage an urgent motion praying for the custody of Bianca for the duration of the case. Acting on respondents petition, Branch 113 of the Pasay RTC issued a Writ of Habeas Corpus, a Hold Departure Order and Summons addressed to petitioner, drawing petitioner to file a motion to dismiss the petition on the ground of lack of jurisdiction, failure to state a cause of action, forum shopping

and litis pendentia, he citing the pending petition for declaration of nullity of marriage which he filed before the Pasig RTC. The Pasay RTC, in the meantime, issued an Order of August 12, 2003 declaring that pending the disposition of respondents petition, Bianca should stay with petitioner from Sunday afternoon to Saturday morning and with the company of her mother from Saturday 1:00 in the afternoon up to Sunday 1:00 in the afternoon. To this Order, petitioner filed a Motion for Reconsideration, arguing that the Pasay RTC did not have jurisdiction to issue the same. He likewise filed a Manifestation of August 14, 2003 stating that he was constrained to submit to the said courts order but with the reservation that he was not submitting the issue of custody and himself to its jurisdiction. Respondent soon filed her Answer with Counter-Petition on the nullity case before the Pasig RTC wherein she also prayed for the award of the sole custody to her of Bianca, subject to the final disposition of the habeas corpus petition which she filed before the Pasay RTC. By Omnibus Order of October 30, 2003, the Pasig RTC asserted its jurisdiction over the custody aspect of the petition filed by petitioner and directed the parties to comply with the provisions of the Interim Visitation Agreement, unless they agreed to a new bilateral agreement bearing the approval of the court; and granted custody of Bianca to petitioner for the duration of the case. The Pasay RTC in the meantime denied, by Order of November 27, 2003, petitioners motion to dismiss. The court, citing Sombong v. Court of Appeals, [1] held that in custody cases involving minors, the question of illegal and involuntary restraint of liberty is not the underlying rationale for the availability of a writ of habeas corpus as a remedy; rather, a writ of habeas corpus is prosecuted for the purpose of determining the right of custody over the child. [2] And it further held that the filing before it of the habeas corpus case by respondent, who is a resident of Pasay, is well within the ambit of the provisions of A.M. No. 03-04-04SC.[3] On the issue of forum shopping, the Pasay RTC held that it is petitioner, not respondent, who committed forum shopping, he having filed (on June 12, 2003) the petition for declaration of nullity of marriage before the Pasig RTC while his petition for habeas corpus before the Court of Appeals was still pending.[4]

The Pasay RTC held that assuming arguendo that petitioners filing before the Pasig RTC of the declaration of nullity of marriage case did not constitute forum shopping, it (the Pasay RTC) acquired jurisdiction over the custody issue ahead of the Pasig RTC, petitioner not having amended his petition before the Pasig RTC as soon as the Court of Appeals dismissed his petition for habeas corpus[5] (on July 3, 2003). Finally, the Pasay RTC held that there was no litis pendentia because two elements thereof are lacking, namely, 1) identity of the rights asserted and reliefs prayed for, the relief being founded on the same facts, and 2) identity with respect to the two preceding particulars in the two cases such that any judgment that may be rendered in the pending case, regardless of which party is successful, would amount to res judicata in the other case.[6] Petitioner thereupon assailed the Pasay RTCs denial of his Motion to Dismiss via Petition for Certiorari, Prohibition and Mandamus before the appellate court wherein he raised the following issues:
A. RESPONDENT JUDGE COMMITTED GRAVE ABUSE OF DISCRETION BY DENYING PETITIONERS MOTION TO DISMISS DESPITE THE EVIDENT LACK OF JURISDICTION OVER THE SUBJECT MATTER OF CUSTODY, LITIS PENDENTIA, AND DELIBERATE AND WILLFUL FORUM-SHOPPING ON THE PART OF RESPONDENT CAROLINE T. YU.[7] B. RESPONDENT JUDGE ACTED WHIMSICALLY, CAPRICIOUSLY AND ARBITRARILY IN ISSUING THE AUGUST 12, 2003 ORDER GRANTING RESPONDENT CAROLINE T. YU OVERNIGHT VISITATION RIGHTSOVER THE MINOR CHILD BIANCA AND DENYING PETITIONERS URGENT MOTION FOR RECONSIDERATION OF THE SAID ORDER.[8] (Underscoring supplied)

By Decision of August 10, 2004,[9] the appellate court denied petitioners petition, it holding that the assumption of jurisdiction by the Pasay RTC over the habeas corpus case does not constitute grave abuse of discretion; the filing by respondent before the Pasay RTC of a petition for habeas corpus could not be considered forum shopping in the strictest sense of the word as before she filed it after petitioners petition for habeas corpus filed before the appellate court was dismissed; and it was petitioner who committed forum shopping when he filed the declaration of nullity of marriage case while his habeas corpus petition was still pending before the appellate court.

In fine, the appellate court held that since respondent filed the petition for declaration of nullity of marriage before the Pasig RTC during the pendency of the habeas corpus case he filed before the appellate court, whereas respondent filed the habeas corpus petition before the Pasay RTC on July 24, 2003 after the dismissal on July 3, 2003 by the appellate court of petitioners habeas corpus case, jurisdiction over the issue custody of Bianca did not attach to the Pasig RTC. As for the questioned order of the Pasay RTC which modified the Interim Visiting Agreement, the appellate court, noting that the proper remedy for the custody of Bianca was filed with the Pasay RTC, held that said court had the authority to issue the same. Hence, the present petition filed by petitioner faulting the appellate court for
I. . . . DECLARING THAT PETITIONER ERIC YU COMMITTED FORUM-SHOPPING IN FILLING THE PETITION FOR DECLARATION OF NULLITY OF MARRIAGE WITH PRAYER FOR CUSTODY BEFORE THE PASIG FAMILY COURT AND THAT THE LATTER COURT WAS BARRED FROM ACQUIRING JURISDICTION OVER THE CUSTODY ASPECT OF THE NULLITY CASE IN RECKLESS DISREGARD OF THE PRINCIPLE THAT THE FILING OF A PETITION FOR NULLITY OF MARRIAGE BEFORE THE FAMILY COURTS VESTS THE LATTER WITH EXCLUSIVE JURISDICTION TO DETERMINE THE NECESSARY ISSUE OF CUSTODY. II. . . . APPL[YING] THE LAW OF THE CASE DOCTRINE BY RULING THAT THE PASIG FAMILY COURT HAS NO JURISDICTION OVER THE CUSTODY ASPECT OF THE NULLITY CASE ON THE BASIS OF THE JULY 5, 2002 RESOLUTION OF THE COURT OF APPEALS IN CA GR SP NO. 68460 WHEN THE SAID RESOLUTION CLEARLY APPLIES ONLY TO THE NULLITY CASE FILED BY PRIVATE RESPONDENT ON MARCH 7, 2002 DOCKETED AS JDRC CASE NO. 5745 AND NOT TO HEREIN PETITIONERS JUNE 12, 2003 PETITION FOR NULLITY DOCKETED AS JDRC CASE NO. 6190. III. . . . DECLARING THAT THE PASIG FAMILY COURT MUST YIELD TO THE JURISDICTION OF THE PASAY COURT INSOFAR AS THE ISSUE OF CUSTODY IS CONCERNED IN GRAVE VIOLATION OF THE DOCTRINE OF JUDICIAL STABILITY AND NON-INTERFERENCE. IV. . . . RULING THAT PRIVATE RESPONDENT CAROLINE DID NOT COMMIT FORUM-SHOPING IN FILING THE HABEAS CORPUS CASE WITH PRAYER FOR CUSTODY BEFORE THE RESPONDENT PASAY COURT DESPITE THE FACT THAT AN EARLIER FILED PETITION FOR

DECLARATION OF NULLITY OF MARRIAGE WITH PRAYER FOR CUSTODY IS STILL PENDING BEFORE THE PASIG FAMILY COURT WHEN THE FORMER CASE WAS INSTITUTED. V. . . . RULING THAT RESPONDENT CAROLINE YU DID NOT SUBMIT TO THE JURISDICTION OF THE PASIG FAMILY COURT BASED ON AN ERRONEOUS FACTUAL FINDING THAT SHE FILED ON AUGUST 25, 2003 AN OMNIBUS OPPOSITION IN PETITIONERS ACTION FOR NULLITY BEFORE THE PASIG COURT. [10] (Underscoring supplied)

The petition is impressed with merit. The main issue raised in the present petition is whether the question of custody over Bianca should be litigated before the Pasay RTC or before the Pasig RTC. Judgment on the issue of custody in the nullity of marriage case before the Pasig RTC, regardless of which party would prevail, would constitute res judicata on the habeas corpus case before the Pasay RTC since the former has jurisdiction over the parties and the subject matter. There is identity in the causes of action in Pasig and Pasay because there is identity in the facts and evidence essential to the resolution of the identical issue raised in both actions[11] whether it would serve the best interest of Bianca to be in the custody of petitioner rather than respondent or vice versa. Since the ground invoked in the petition for declaration of nullity of marriage before the Pasig RTC is respondents alleged psychological incapacity to perform her essential marital obligations[12] as provided in Article 36 of the Family Code, the evidence to support this cause of action necessarily involves evidence of respondents fitness to take custody of Bianca. Thus, the elements of litis pendentia, to wit: a) identity of parties, or at least such as representing the same interest in both actions; b) identity of rights asserted and reliefs prayed for, the relief being founded on the same facts; and c) the identity in the two cases should be such that the judgment that may be rendered in the pending case would, regardless of which party is successful, amount to res judicata in the other,[13] are present. Respondent argues in her Comment to the petition at bar that the Pasig RTC never acquired jurisdiction over the custody issue raised therein.

[T]he subsequent dismissal of the habeas corpus petition by the Court of Appeals on 3 July 2003 could not have the effect of conferring jurisdiction over the issue on the Pasig court. For the Pasig court to acquire jurisdiction over the custody issueafter the dismissal of the habeas corpus petition before the Court of Appeals, the rule is that petitioner must furnish the occasion for the acquisition of jurisdiction by repleading his cause of action for custody and invoking said cause anew.[14] (Emphasis and underscoring supplied)

And respondent cites Caluag v. Pecson,[15] wherein this Court held:

Jurisdiction of the subject matter of a particular case is something more than the general power conferred by law upon a court to take cognizance of cases of the general class to which the particular case belongs. It is not enough that a court has power in abstract to try and decide the class litigations [sic] to which a case belongs; it is necessary that said power be properly invoked, or called into activity, by the filing of a petition, or complaint or other appropriate pleading. (Underscoring supplied by Caroline.)[16]

Specific provisions of law govern the case at bar, however. Thus Articles 49 and 50 of the Family Code provide:
Art. 49. During the pendency of the action [for annulment or declaration of nullity of marriage] and in the absence of adequate provisions in a written agreement between the spouses, the Court shall provide for the support of the spouses and thecustody and support of their common children. x x x It shall also provide for appropriate visitation rights of the other parent. (Emphasis and underscoring supplied)[17] Art. 50. x x x x The final judgment in such cases [for the annulment or declaration of nullity of marriage] shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such other matters had been adjudicated in previous judicial proceedings. (Emphasis and underscoring added)

By petitioners filing of the case for declaration of nullity of marriage before the Pasig RTC he automatically submitted the issue of the custody of Bianca as an incident thereof. After the appellate court subsequently dismissed the habeas

corpus case, there was no need for petitioner to replead his prayer for custody for, as above-quoted provisions of the Family Code provide, the custody issue in a declaration of nullity case is deemed pleaded. That that is so gains light from Section 21 of the Rule on Declaration Of Absolute Nullity Of Void Marriages and Annulment of Voidable Marriages[18] which provides:
Sec. 21. Liquidation, partition and distribution, custody, support of common children and delivery of their presumptive legitimes.Upon entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment of the appellate court granting the petition, the Family Court, on motion of either party, shall proceed with the liquidation, partition and distribution of the properties of the spouses, including custody, support of common children and delivery of their presumptive legitimes pursuant to Articles 50 and 51 of the Family Code unless such matters had been adjudicated in previous judicial proceedings. (Emphasis and underscoring supplied)

Since this immediately-quoted provision directs the court taking jurisdiction over a petition for declaration of nullity of marriage to resolve the custody of common children, by mere motion of either party, it could only mean that the filing of a new action is not necessary for the court to consider the issue of custody of a minor.[19] The only explicit exception to the earlier-quoted second paragraph of Art. 50 of the Family Code is when such matters had been adjudicated in previous judicial proceedings, which is not the case here. The elements of litis pendentia having been established, the more appropriate action criterion guides this Court in deciding which of the two pending actions to abate.[20] The petition filed by petitioner for the declaration of nullity of marriage before the Pasig RTC is the more appropriate action to determine the issue of who between the parties should have custody over Bianca in view of the express provision of the second paragraph of Article 50 of the Family Code. This must be so in line with the policy of avoiding multiplicity of suits.[21] The appellate court thus erroneously applied the law of the case doctrine when it ruled that in its July 5, 2002 Resolution that the pendency of the habeas corpus petition in CA-G.R. SP No. 68460 prevented thePasig RTC from acquiring jurisdiction over the custody aspect of petitioners petition for declaration of

nullity. The factual circumstances of the case refelected above do not justify the application of the law of the casedoctrine which has been defined as follows:
Law of the case has been defined as the opinion delivered on a former appeal. It is a term applied to an established rule that when an appellate court passes on a question and remands the case to the lower court for further proceedings, the question there settled becomes the law of the case upon subsequent appeal. It means that whatever is once irrevocably established as the controlling legal rule or decision between the same parties in the same case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court. (Emphasis and underscoring supplied, italics in the original)[22]

WHEREFORE, the petition is GRANTED. The August 10, 2004 decision of the Court of Appeals is REVERSED and SET ASIDE, and another is entered DISMISSING Pasay City Regional Trial CourtSp. Proc. No. 03-0048CFM and ordering Branch 69 of Pasig City Regional Trial Court to continue, with dispatch, the proceedings in JDRC No. 6190. SO ORDERED. CONCHITA CARPIO MORALES Associate Justice
FIRST DIVISION G.R. No. 139676 March 31, 2006

REPUBLIC OF THE PHILIPPINES, Petitioner, vs. NORMA CUISON-MELGAR, Respondents. DECISION AUSTRIA-MARTINEZ, J.: Filed by the Republic of the Philippines (petitioner) is a petition for review on certiorari of the Decision1 of the Court of Appeals (CA) dated August 11, 1999 in CA-G.R. CV No. 55538, which affirmed in toto the decision of the Regional Trial Court, Branch 43, Dagupan City (RTC) nullifying

the marriage of respondents Norma Cuison-Melgar (Norma) and Eulogio A. Melgar 2 (Eulogio) pursuant to Article 363 of the Family Code. The factual background of the case is as follows: On March 27, 1965, Norma and Eulogio were married before the Catholic Church in Dagupan City. Their union begot five children, namely, Arneldo, Fermin, Norman, Marion Joy, and Eulogio III. On August 19, 1996, Norma filed for declaration of nullity of her marriage on the ground of Eulogios psychological incapacity to comply with his essential marital obligations. 4 According to Norma, the manifestations of Eulogios psychological incapacity are his immaturity, habitual alcoholism, unbearable jealousy, maltreatment, constitutional laziness, and abandonment of his family since December 27, 1985. Summons, together with a copy of the complaint, was served by personal service on Eulogio on October 21, 1996 by the sheriff.5 Eulogio failed to file an answer or to enter his appearance within the reglementary period. On November 25, 1996, the RTC ordered the Public Prosecutor to conduct an investigation on the case to determine whether or not there exists collusion between the contending parties. 6 On December 18, 1996, Public Prosecutor Joven M. Maramba submitted his Manifestation to the effect that no collusion existed between the contending parties. 7 On December 19, 1996, the RTC set the reception of evidence on January 8, 1997.8 On January 8, 1997, upon motion of Normas counsel, the RTC allowed the presentation of evidence before the Clerk of Court.9 Norma testified that since the birth of their firstborn, Eulogio has been a habitual alcoholic; when he is drunk he (a) sometimes sleeps on the streets, (b) every so often, he goes to her office, utters unwholesome remarks against her and drags her home, (c) he usually lays a hand on her, (d) he often scolds their children without justifiable reason; his liquor drinking habit has brought shame and embarrassment on their family; when she would refuse to give him money for his compulsive drinking habit, he would beat her up and threaten her; he has not been employed since he was dismissed from work and he refuses to look for a job; she has been the one supporting the family, providing for the education and the basic needs of their children out of her salary as a government employee; on December 27, 1985, because of unbearable jealousy to her male officemates, Eulogio went to her office, dragged her home and then beat her up; her brothers saw this, came to her rescue and then told Eulogio to get out of the house; and since then, Eulogio has not visited or communicated with his family such that reconciliation is very unlikely. 10 The Public Prosecutor thereafter conducted a brief cross-examination of Norma. 11 Twelve days later, or on January 20, 1997, the RTC rendered its decision nullifying the marriage of Norma and Eulogio. The dispositive portion of the decision reads: WHEREFORE, the Court hereby GRANTS the instant petition for being impressed with merit. As such, pursuant to Art. 36 of the Family Code of the Philippines, the marriage between Norma L. Cuison-Melgar and Eulogio A. Melgar, Jr. is declared an ABSOLUTE NULLITY. The Local Civil Registrar of Dagupan City is therefore ordered to cancel the Marriage Contract of the parties bearing Registry No. 180 in the Marriage Registry of said Office after payment of the required fees. Let a copy of this decision be furnished the following offices: The City Prosecution Office, Dagupan City, the Solicitor General, and the Local Civil Registrar of Dagupan City.

SO ORDERED.12 The RTC reasoned that: With the testimony of the petitioner, the Court is convinced that defendant has been incorrigible in his vices such as habitual alcoholism, subjecting his family to physical maltreatment and many times caused them to be scandalized, his being indolent by not at least trying to look for a job so that he could also help his wife in supporting his family, and also his uncalled for display of his jealousy. These are clear manifestation of his psychological incapacity to perform his marital obligation to his wife such as showing respect, understanding and love to her. Defendant also became indifferent to the needs of his own children who really longed for a father who is willing to make the sacrifice in looking for a job so as to support them. Without any communication to his family since 1985, certaining [sic] reconciliation and love would be improbable. The attendant circumstances in this case really point to the fact that defendant was unprepared to comply with his responsibilities as a good and responsible husband to his wife and a loving father to his children x x x. 13 Petitioner, represented by the Office of the Solicitor General (OSG), filed an appeal with the CA, contending that the evidence presented are not sufficient to declare the marriage void under Article 36 of the Family Code.14 On August 11, 1999, the CA rendered its Decision affirming the decision of the RTC. 15 The CA, quoting extensively Normas testimony, ratiocinated: [I]t has been adequately established that the decree of annulment is proper not simply because of defendants habitual alcoholism but likewise because of other causes amounting to psychological incapacity as a result of which defendant has failed to perform his obligations under Articles 68-72, 220, 221 and 225 of the Family Code x x x. Contrary to the submission of the appellant Republic, the grant of annulment is not based merely on defendants habitual alcoholism but also because of his inability to cope with his other essential marital obligations foremost of which is his obligation to live together with his wife, observe mutual love, respect, fidelity and render mutual help and support. For the whole duration of their marriage, that is, the period when they actually lived together as husband and wide and even thereafter, defendant has miserably failed to perform his obligations for which reason the plaintiff should not be made to suffer any longer. The contention of the Republic that plaintiff never showed that she exerted effort to seek medical help for her husband is stretching the obligations of the plaintiff beyond its limits. To our mind, it is equivalent to saying that plaintiff deserves to be punished for all the inabilities of defendant to perform his concomitant duties as a husband and a father all of which inabilities in the first place are in no way attributable to the herein plaintiff.16 Hence, the present petition for review on certiorari. In its Petition,17 the OSG poses a sole issue for resolution: WHETHER OR NOT THE ALLEGED PSYCHOLOGICAL INCAPACITY OF RESPONDENT IS IN THE NATURE CONTEMPLATED BY ARTICLE 36 OF THE FAMILY CODE.18 The OSG contends that the law does not contemplate mere inability to perform the essential marital obligations as equivalent to or evidence of psychological incapacity under Article 36 of the Family

Code; that such inability must be due to causes that are psychological in nature; that no psychiatrist or psychologist testified during the trial that a psychological disorder is the cause of Eulogio's inability to look for a job, his resulting drunkenness, unbearable jealousy and other disagreeable behavior; and that the decision failed to state the nature, gravity or seriousness, and incurability of Eulogios alleged psychological incapacity. In her Comment,19 Norma maintains that her testimony pointing to the facts and circumstances of Eulogios immaturity, habitual alcoholism, unbearable jealousy, maltreatment, constitutional laziness and indolence are more than enough proof of Eulogios psychological incapacity to comply with his essential marital obligations, which justifies the dissolution of their marriage. In its Reply,20 the OSG submits that Normas comments are irrelevant and not responsive to the arguments in the petition. Nonetheless, the OSG reiterates that Normas evidence fell short of the requirements of the law since no competent evidence was presented during the trial to prove that Eulogios inability to look for a job, his resulting drunkenness, jealousy and other disagreeable behavior are manifestations of psychological incapacity under Article 36 of the Family Code. Prefatorily, it bears stressing that it is the policy of our Constitution to protect and strengthen the family as the basic autonomous social institution and marriage as the foundation of the family. 21 Our family law is based on the policy that marriage is not a mere contract, but a social institution in which the state is vitally interested. The State can find no stronger anchor than on good, solid and happy families. The break up of families weakens our social and moral fabric and, hence, their preservation is not the concern alone of the family members.22 In this regard, Article 48 of the Family Code mandates: ART. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed. In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment. (Emphasis supplied) Similarly, Section 6 of Rule 18 of the 1985 Rules of Court, 23 the rule then applicable, provides: Sec. 6. No defaults in actions for annulment of marriage or for legal separation. - If the defendant in an action for annulment of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated. (Emphasis supplied) In Republic v. Molina,24 the Court emphasized the role of the prosecuting attorney or fiscal, and the OSG to appear as counsel for the State in proceedings for annulment and declaration of nullity of marriages: (8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is

deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095. 25(Emphasis supplied) In this case, the State did not actively participate in the prosecution of the case at the trial level. Other than the Public Prosecutors Manifestation 26 that no collusion existed between the contending parties and the brief cross-examination27 which had barely scratched the surface, no pleading, motion, or position paper was filed by the Public Prosecutor or the OSG. The State should have been given the opportunity to present controverting evidence before the judgment was rendered.28 Truly, only the active participation of the Public Prosecutor or the OSG will ensure that the interest of the State is represented and protected in proceedings for annulment and declaration of nullity of marriages by preventing collusion between the parties, or the fabrication or suppression of evidence.29 Be that as it may, the totality of evidence presented by Norma is completely insufficient to sustain a finding that Eulogio is psychologically incapacitated. In Santos v. Court of Appeals,30 the Court declared that psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability. 31 It should refer to "no less than a mental, not physical, incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage."32 The intendment of the law has been to confine the meaning of "psychological incapacity" to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. 33 Subsequently, the Court laid down in Republic of the Philippines v. Molina34 the guidelines in the interpretation and application of Article 36 of the Family Code, to wit: (1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an entire Article on the Family, recognizing it "as the foundation of the nation." It decrees marriage as legally "inviolable," thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be "protected" by the state. The Family Code echoes this constitutional edict on marriage and the family and emphasizes their permanence, inviolability and solidarity. (2) The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological - not physical, although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or psychically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle ofejusdem generis (Salita v. Magtolis, 233 SCRA 100, 108), nevertheless such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists.

(3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage. The evidence must show that the illness was existing when the parties exchanged their "I dos." The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto. (4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses of children and prescribing medicine to cure them but may not be psychologically capacitated to procreate, bear and raise his/her own children as an essential obligation of marriage. (5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, "mild characteriological peculiarities, mood changes, occasional emotional outbursts" cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage. (6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision. (7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. x x x.35 (Emphasis supplied) Later, the Court clarified in Marcos v. Marcos36 that there is no requirement that the defendant/respondent spouse should be personally examined by a physician or psychologist as a condition sine qua non for the declaration of nullity of marriage based on psychological incapacity. Such psychological incapacity, however, must be established by the totality of the evidence presented during the trial.37 In the present case, Norma alone testified in support of her complaint for declaration of nullity of her marriage under Article 36 of the Family Code. She failed to establish the fact that at the time they were married, Eulogio was already suffering from a psychological defect which in fact deprived him of the ability to assume the essential duties of marriage and its concomitant responsibilities. In fact, Norma admitted in her testimony that her marital woes and Eulogios disagreeable behavior started only after the birth of their firstborn and when Eulogio lost his job. 38 Further, no other evidence was presented to show that Eulogio was not cognizant of the basic marital obligations as outlined in Articles 68 to 72,39 220,40 221,41 and 22542 of the Family Code. It was not sufficiently proved that Eulogio was really incapable of fulfilling his duties due to some incapacity of a psychological nature, and not merely physical.
lawphil.net

The Court cannot presume psychological defect from the mere fact of Eulogios immaturity, habitual alcoholism, unbearable jealousy, maltreatment, constitutional laziness, and abandonment of his

family. These circumstances by themselves cannot be equated with psychological incapacity within the contemplation of the Family Code. It must be shown that these acts are manifestations of a disordered personality which make Eulogio completely unable to discharge the essential obligations of the marital state.43 At best, the circumstances relied upon by Norma are grounds for legal separation under Article 5544 of the Family Code. As the Court ruled in Republic of the Philippines v. Molina, 45 it is not enough to prove that a spouse failed to meet his responsibility and duty as a married person, it is essential that he must be shown to be incapable of doing so due to some psychological, not physical, illness. There was no proof of a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates a person from accepting and complying with the obligations essential to marriage. 46 All told, in order that the allegation of psychological incapacity may not be considered a mere fabrication, evidence other than Normas lone testimony should have been adduced. While an actual medical, psychiatric or psychological examination is not a conditio sine qua non to a finding of psychological incapacity,47 an expert witness would have strengthened Normas claim of Eulogios alleged psychological incapacity. Normas omission to present one is fatal to her position. There can be no conclusion of psychological incapacity where there is absolutely no showing that the "defects" were already present at the inception of the marriage or that they are incurable. 48 The Court commiserates with Normas marital predicament, but as a court, even as the highest one, it can only apply the letter and the spirit of the law; it cannot reinvent or modify it. Unfortunately, law and jurisprudence are ranged against Normas stance. The Court has no choice but to apply them accordingly, if it must be true to its mission under the rule of law. The Courts first and foremost duty is to apply the law no matter how harsh it may be. WHEREFORE, the present petition is GRANTED. The assailed Decision of the Court of Appeals dated August 11, 1999 in CA-G.R. CV No. 55538, affirming the Decision of the Regional Trial Court, Branch 43, Dagupan City in Civil Case No. CV-96-01061-D, dated January 20, 1997, is REVERSED and SET ASIDE. The complaint of Norma Cuison-Melgar in Civil Case No. CV-9601061-D is DISMISSED. SO ORDERED. MA. ALICIA AUSTRIA-MARTINEZ Associate Justice THIRD DIVISION G.R. No. 155800 March 10, 2006

LEONILO ANTONIO Petitioner, vs. MARIE IVONNE F. REYES, Respondent. DECISION TINGA, J.:

Statistics never lie, but lovers often do, quipped a sage. This sad truth has unsettled many a love transformed into matrimony. Any sort of deception between spouses, no matter the gravity, is always disquieting. Deceit to the depth and breadth unveiled in the following pages, dark and irrational as in the modern noir tale, dims any trace of certitude on the guilty spouses capability to fulfill the marital obligations even more. The Petition for Review on Certiorari assails the Decision1 and Resolution2 of the Court of Appeals dated 29 November 2001 and 24 October 2002. The Court of Appeals had reversed the judgment 3 of the Regional Trial Court (RTC) of Makati declaring the marriage of Leonilo N. Antonio (petitioner) and Marie Ivonne F. Reyes (respondent), null and void. After careful consideration, we reverse and affirm instead the trial court. Antecedent Facts Petitioner and respondent met in August 1989 when petitioner was 26 years old and respondent was 36 years of age. Barely a year after their first meeting, they got married before a minister of the Gospel4 at the Manila City Hall, and through a subsequent church wedding 5 at the Sta. Rosa de Lima Parish, Bagong Ilog, Pasig, Metro Manila on 6 December 1990. 6 Out of their union, a child was born on 19 April 1991, who sadly died five (5) months later. On 8 March 1993,7 petitioner filed a petition to have his marriage to respondent declared null and void. He anchored his petition for nullity on Article 36 of the Family Code alleging that respondent was psychologically incapacitated to comply with the essential obligations of marriage. He asserted that respondents incapacity existed at the time their marriage was celebrated and still subsists up to the present.8 As manifestations of respondents alleged psychological incapacity, petitioner claimed that respondent persistently lied about herself, the people around her, her occupation, income, educational attainment and other events or things, 9 to wit: (1) She concealed the fact that she previously gave birth to an illegitimate son, 10 and instead introduced the boy to petitioner as the adopted child of her family. She only confessed the truth about the boys parentage when petitioner learned about it from other sources after their marriage. 11 (2) She fabricated a story that her brother-in-law, Edwin David, attempted to rape and kill her when in fact, no such incident occurred. 12 (3) She misrepresented herself as a psychiatrist to her obstetrician, Dr. Consuelo Gardiner, and told some of her friends that she graduated with a degree in psychology, when she was neither. 13 (4) She claimed to be a singer or a free-lance voice talent affiliated with Blackgold Recording Company (Blackgold); yet, not a single member of her family ever witnessed her alleged singing activities with the group. In the same vein, she postulated that a luncheon show was held at the Philippine Village Hotel in her honor and even presented an invitation to that effect 14 but petitioner discovered per certification by the Director of Sales of said hotel that no such occasion had taken place.15 (5) She invented friends named Babes Santos and Via Marquez, and under those names, sent lengthy letters to petitioner claiming to be from Blackgold and touting her as the "number one moneymaker" in the commercial industry worth P2 million.16 Petitioner later found out that respondent herself was the one who wrote and sent the letters to him when she admitted the truth in

one of their quarrels.17 He likewise realized that Babes Santos and Via Marquez were only figments of her imagination when he discovered they were not known in or connected with Blackgold. 18 (6) She represented herself as a person of greater means, thus, she altered her payslip to make it appear that she earned a higher income. She bought a sala set from a public market but told petitioner that she acquired it from a famous furniture dealer. 19 She spent lavishly on unnecessary items and ended up borrowing money from other people on false pretexts. 20 (7) She exhibited insecurities and jealousies over him to the extent of calling up his officemates to monitor his whereabouts. When he could no longer take her unusual behavior, he separated from her in August 1991. He tried to attempt a reconciliation but since her behavior did not change, he finally left her for good in November 1991.21 In support of his petition, petitioner presented Dr. Dante Herrera Abcede (Dr. Abcede), a psychiatrist, and Dr. Arnulfo V. Lopez (Dr. Lopez), a clinical psychologist, who stated, based on the tests they conducted, that petitioner was essentially a normal, introspective, shy and conservative type of person. On the other hand, they observed that respondents persistent and constant lying to petitioner was abnormal or pathological. It undermined the basic relationship that should be based on love, trust and respect.22 They further asserted that respondents extreme jealousy was also pathological. It reached the point of paranoia since there was no actual basis for her to suspect that petitioner was having an affair with another woman. They concluded based on the foregoing that respondent was psychologically incapacitated to perform her essential marital obligations. 23 In opposing the petition, respondent claimed that she performed her marital obligations by attending to all the needs of her husband. She asserted that there was no truth to the allegation that she fabricated stories, told lies and invented personalities. 24 She presented her version, thus: (1) She concealed her child by another man from petitioner because she was afraid of losing her husband.25 (2) She told petitioner about Davids attempt to rape and kill her because she surmised such intent from Davids act of touching her back and ogling her from head to foot. 26 (3) She was actually a BS Banking and Finance graduate and had been teaching psychology at the Pasig Catholic School for two (2) years.27 (4) She was a free-lance voice talent of Aris de las Alas, an executive producer of Channel 9 and she had done three (3) commercials with McCann Erickson for the advertisement of Coca-cola, Johnson & Johnson, and Traders Royal Bank. She told petitioner she was a Blackgold recording artist although she was not under contract with the company, yet she reported to the Blackgold office after office hours. She claimed that a luncheon show was indeed held in her honor at the Philippine Village Hotel on 8 December 1979.28 (5) She vowed that the letters sent to petitioner were not written by her and the writers thereof were not fictitious. Bea Marquez Recto of the Recto political clan was a resident of the United States while Babes Santos was employed with Saniwares.29

(6) She admitted that she called up an officemate of her husband but averred that she merely asked the latter in a diplomatic matter if she was the one asking for chocolates from petitioner, and not to monitor her husbands whereabouts.30 (7) She belied the allegation that she spent lavishly as she supported almost ten people from her monthly budget of P7,000.00.31 In fine, respondent argued that apart from her non-disclosure of a child prior to their marriage, the other lies attributed to her by petitioner were mostly hearsay and unconvincing. Her stance was that the totality of the evidence presented is not sufficient for a finding of psychological incapacity on her part.32 In addition, respondent presented Dr. Antonio Efren Reyes (Dr. Reyes), a psychiatrist, to refute the allegations anent her psychological condition. Dr. Reyes testified that the series of tests conducted by his assistant,33together with the screening procedures and the Comprehensive PsychoPathological Rating Scale (CPRS) he himself conducted, led him to conclude that respondent was not psychologically incapacitated to perform the essential marital obligations. He postulated that regressive behavior, gross neuroticism, psychotic tendencies, and poor control of impulses, which are signs that might point to the presence of disabling trends, were not elicited from respondent. 34 In rebuttal, Dr. Lopez asseverated that there were flaws in the evaluation conducted by Dr. Reyes as (i) he was not the one who administered and interpreted respondents psychological evaluation, and (ii) he made use of only one instrument called CPRS which was not reliable because a good liar can fake the results of such test.35 After trial, the lower court gave credence to petitioners evidence and held that respondents propensity to lying about almost anythingher occupation, state of health, singing abilities and her income, among othershad been duly established. According to the trial court, respondents fantastic ability to invent and fabricate stories and personalities enabled her to live in a world of make-believe. This made her psychologically incapacitated as it rendered her incapable of giving meaning and significance to her marriage.36 The trial court thus declared the marriage between petitioner and respondent null and void. Shortly before the trial court rendered its decision, the Metropolitan Tribunal of the Archdiocese of Manila annulled the Catholic marriage of the parties, on the ground of lack of due discretion on the part of the parties.37 During the pendency of the appeal before the Court of Appeals, the Metropolitan Tribunals ruling was affirmed with modification by both the National Appellate Matrimonial Tribunal, which held instead that only respondent was impaired by a lack of due discretion. 38 Subsequently, the decision of the National Appellate Matrimonial Tribunal was upheld by the Roman Rota of the Vatican.39 Petitioner duly alerted the Court of Appeals of these rulings by the Catholic tribunals. Still, the appellate court reversed the RTCs judgment. While conceding that respondent may not have been completely honest with petitioner, the Court of Appeals nevertheless held that the totality of the evidence presented was insufficient to establish respondents psychological incapacity. It declared that the requirements in the case of Republic v. Court of Appeals40 governing the application and interpretation of psychological incapacity had not been satisfied. Taking exception to the appellate courts pronouncement, petitioner elevated the case to this Court. He contends herein that the evidence conclusively establish respondents psychological incapacity.

In considering the merit of this petition, the Court is heavily influenced by the credence accorded by the RTC to the factual allegations of petitioner.41 It is a settled principle of civil procedure that the conclusions of the trial court regarding the credibility of witnesses are entitled to great respect from the appellate courts because the trial court had an opportunity to observe the demeanor of witnesses while giving testimony which may indicate their candor or lack thereof. 42 The Court is likewise guided by the fact that the Court of Appeals did not dispute the veracity of the evidence presented by petitioner. Instead, the appellate court concluded that such evidence was not sufficient to establish the psychological incapacity of respondent. 43 Thus, the Court is impelled to accept the factual version of petitioner as the operative facts. Still, the crucial question remains as to whether the state of facts as presented by petitioner sufficiently meets the standards set for the declaration of nullity of a marriage under Article 36 of the Family Code. These standards were definitively laid down in the Courts 1997 ruling in Republic v. Court of Appeals44 (also known as the Molina case45), and indeed the Court of Appeals cited the Molina guidelines in reversing the RTC in the case at bar.46 Since Molinawas decided in 1997, the Supreme Court has yet to squarely affirm the declaration of nullity of marriage under Article 36 of the Family Code.47 In fact, even before Molina was handed down, there was only one case, Chi Ming Tsoi v. Court of Appeals,48 wherein the Court definitively concluded that a spouse was psychologically incapacitated under Article 36. This state of jurisprudential affairs may have led to the misperception that the remedy afforded by Article 36 of the Family Code is hollow, insofar as the Supreme Court is concerned. 49 Yet what Molina and the succeeding cases did ordain was a set of guidelines which, while undoubtedly onerous on the petitioner seeking the declaration of nullity, still leave room for a decree of nullity under the proper circumstances. Molina did not foreclose the grant of a decree of nullity under Article 36, even as it raised the bar for its allowance. Legal Guides to Understanding Article 36 Article 36 of the Family Code states that "[a] marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization."50 The concept of psychological incapacity as a ground for nullity of marriage is novel in our body of laws, although mental incapacity has long been recognized as a ground for the dissolution of a marriage. The Spanish Civil Code of 1889 prohibited from contracting marriage persons "who are not in the full enjoyment of their reason at the time of contracting marriage." 51 Marriages with such persons were ordained as void,52 in the same class as marriages with underage parties and persons already married, among others. A partys mental capacity was not a ground for divorce under the Divorce Law of 1917,53 but a marriage where "either party was of unsound mind" at the time of its celebration was cited as an "annullable marriage" under the Marriage Law of 1929. 54 Divorce on the ground of a spouses incurable insanity was permitted under the divorce law enacted during the Japanese occupation.55 Upon the enactment of the Civil Code in 1950, a marriage contracted by a party of "unsound mind" was classified under Article 85 of the Civil Code as a voidable marriage. 56 The mental capacity, or lack thereof, of the marrying spouse was not among the grounds for declaring a marriage void ab initio.57 Similarly, among the marriages classified as voidable under Article 45 (2) of the Family Code is one contracted by a party of unsound mind. 58 Such cause for the annulment of marriage is recognized as a vice of consent, just like insanity impinges on consent freely given which is one of the essential requisites of a contract. 59 The initial common consensus on psychological incapacity under Article 36 of the Family Code was that it did

not constitute a specie of vice of consent. Justices Sempio-Diy and Caguioa, both members of the Family Code revision committee that drafted the Code, have opined that psychological incapacity is not a vice of consent, and conceded that the spouse may have given free and voluntary consent to a marriage but was nonetheless incapable of fulfilling such rights and obligations. 60 Dr. Tolentino likewise stated in the 1990 edition of his commentaries on the Family Code that this "psychological incapacity to comply with the essential marital obligations does not affect the consent to the marriage."61 There were initial criticisms of this original understanding of Article 36 as phrased by the Family Code committee. Tolentino opined that "psychologically incapacity to comply would not be juridically different from physical incapacity of consummating the marriage, which makes the marriage only voidable under Article 45 (5) of the Civil Code x x x [and thus] should have been a cause for annulment of the marriage only."62 At the same time, Tolentino noted "[it] would be different if it were psychological incapacity to understand the essential marital obligations, because then this would amount to lack of consent to the marriage." 63 These concerns though were answered, beginning with Santos v. Court of Appeals,64 wherein the Court, through Justice Vitug, acknowledged that "psychological incapacity should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage." 65 The notion that psychological incapacity pertains to the inability to understand the obligations of marriage, as opposed to a mere inability to comply with them, was further affirmed in the Molina66 case. Therein, the Court, through then Justice (now Chief Justice) Panganiban observed that "[t]he evidence [to establish psychological incapacity] must convince the court that the parties, or one of them, was mentally or psychically ill to such extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereto."67 Jurisprudence since then has recognized that psychological incapacity "is a malady so grave and permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is about to assume."68 It might seem that this present understanding of psychological incapacity deviates from the literal wording of Article 36, with its central phase reading "psychologically incapacitated to comply with the essential marital obligations of marriage."69 At the same time, it has been consistently recognized by this Court that the intent of the Family Code committee was to design the law as to allow some resiliency in its application, by avoiding specific examples that would limit the applicability of the provision under the principle of ejusdem generis. Rather, the preference of the revision committee was for "the judge to interpret the provision on a case-to-case basis, guided by experience, in the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals which, although not binding on the civil courts, may be given persuasive effect since the provision was taken from Canon Law." 70 We likewise observed in Republic v. Dagdag:71 Whether or not psychological incapacity exists in a given case calling for annulment of a marriage, depends crucially, more than in any field of the law, on the facts of the case. Each case must be judged, not on the basis of a priori assumptions, predilections or generalizations but according to its own facts. In regard to psychological incapacity as a ground for annulment of marriage, it is trite to say that no case is on "all fours" with another case. The trial judge must take pains in examining the

factual milieu and the appellate court must, as much as possible, avoid substituting its own judgment for that of the trial court.72 The Court thus acknowledges that the definition of psychological incapacity, as intended by the revision committee, was not cast in intractable specifics. Judicial understanding of psychological incapacity may be informed by evolving standards, taking into account the particulars of each case, current trends in psychological and even canonical thought, and experience. It is under the auspices of the deliberate ambiguity of the framers that the Court has developed the Molina rules, which have been consistently applied since 1997. Molina has proven indubitably useful in providing a unitary framework that guides courts in adjudicating petitions for declaration of nullity under Article 36. At the same time, the Molina guidelines are not set in stone, the clear legislative intent mandating a caseto-case perception of each situation, and Molina itself arising from this evolutionary understanding of Article 36. There is no cause to disavow Molina at present, and indeed the disposition of this case shall rely primarily on that precedent. There is need though to emphasize other perspectives as well which should govern the disposition of petitions for declaration of nullity under Article 36. Of particular notice has been the citation of the Court, first in Santos then in Molina, of the considered opinion of canon law experts in the interpretation of psychological incapacity. This is but unavoidable, considering that the Family Code committee had bluntly acknowledged that the concept of psychological incapacity was derived from canon law, 73 and as one member admitted, enacted as a solution to the problem of marriages already annulled by the Catholic Church but still existent under civil law.74 It would be disingenuous to disregard the influence of Catholic Church doctrine in the formulation and subsequent understanding of Article 36, and the Court has expressly acknowledged that interpretations given by the National Appellate Matrimonial Tribunal of the local Church, while not controlling or decisive, should be given great respect by our courts. 75 Still, it must be emphasized that the Catholic Church is hardly the sole source of influence in the interpretation of Article 36. Even though the concept may have been derived from canon law, its incorporation into the Family Code and subsequent judicial interpretation occurred in wholly secular progression. Indeed, while Church thought on psychological incapacity is merely persuasive on the trial courts, judicial decisions of this Court interpreting psychological incapacity are binding on lower courts. 76 Now is also opportune time to comment on another common legal guide utilized in the adjudication of petitions for declaration of nullity under Article 36. All too frequently, this Court and lower courts, in denying petitions of the kind, have favorably cited Sections 1 and 2, Article XV of the Constitution, which respectively state that "[t]he State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total developmen[t]," and that "[m]arriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State." These provisions highlight the importance of the family and the constitutional protection accorded to the institution of marriage. But the Constitution itself does not establish the parameters of state protection to marriage as a social institution and the foundation of the family. It remains the province of the legislature to define all legal aspects of marriage and prescribe the strategy and the modalities to protect it, based on whatever socio-political influences it deems proper, and subject of course to the qualification that such legislative enactment itself adheres to the Constitution and the Bill of Rights. This being the case, it also falls on the legislature to put into operation the constitutional provisions that protect marriage and the family. This has been accomplished at present through the enactment of the Family Code, which defines marriage and the family, spells out the corresponding legal effects, imposes the limitations that affect married and family life, as well as prescribes the grounds for declaration of nullity and those for legal separation. While it may appear that the judicial denial of a petition for declaration of nullity is reflective of the constitutional mandate to protect marriage, such action in fact merely enforces a statutory definition of marriage, not a constitutionally ordained

decree of what marriage is. Indeed, if circumstances warrant, Sections 1 and 2 of Article XV need not be the only constitutional considerations to be taken into account in resolving a petition for declaration of nullity. Indeed, Article 36 of the Family Code, in classifying marriages contracted by a psychologically incapacitated person as a nullity, should be deemed as an implement of this constitutional protection of marriage. Given the avowed State interest in promoting marriage as the foundation of the family, which in turn serves as the foundation of the nation, there is a corresponding interest for the State to defend against marriages ill-equipped to promote family life. Void ab initio marriages under Article 36 do not further the initiatives of the State concerning marriage and family, as they promote wedlock among persons who, for reasons independent of their will, are not capacitated to understand or comply with the essential obligations of marriage. These are the legal premises that inform us as we decide the present petition. Molina Guidelines As Applied in This Case As stated earlier, Molina established the guidelines presently recognized in the judicial disposition of petitions for nullity under Article 36. The Court has consistently applied Molina since its promulgation in 1997, and the guidelines therein operate as the general rules. They warrant citation in full: 1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an entire Article on the Family, recognizing it "as the foundation of the nation." It decrees marriage as legally "inviolable," thereby protecting it from dissolution at the whim of the parties. Both the family and marriage are to be "protected" by the state. The Family Code echoes this constitutional edict on marriage and the family and emphasizes their permanence, inviolability and solidarity. 2) The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychologicalnot physical, although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or psychically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle ofejusdem generis, nevertheless such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists. 3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage. The evidence must show that the illness was existing when the parties exchanged their "I dos." The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto. 4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must

be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses of children and prescribing medicine to cure them but not be psychologically capacitated to procreate, bear and raise his/her own children as an essential obligation of marriage. 5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, "mild characteriological peculiarities, mood changes, occasional emotional outbursts" cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage. 6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision. 7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. It is clear that Article 36 was taken by the Family Code Revision Committee from Canon 1095 of the New Code of Canon Law, which became effective in 1983 and which provides: "The following are incapable of contracting marriage: Those who are unable to assume the essential obligations of marriage due to causes of psychological nature." Since the purpose of including such provision in our Family Code is to harmonize our civil laws with the religious faith of our people, it stands to reason that to achieve such harmonization, great persuasive weight should be given to decisions of such appellate tribunal. Ideallysubject to our law on evidencewhat is decreed as canonically invalid should also be decreed civilly void. 77 Molina had provided for an additional requirement that the Solicitor General issue a certification stating his reasons for his agreement or opposition to the petition. 78 This requirement however was dispensed with following the implementation of A.M. No. 02-11-10-SC, or the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages. 79 Still, Article 48 of the Family Code mandates that the appearance of the prosecuting attorney or fiscal assigned be on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. Obviously, collusion is not an issue in this case, considering the consistent vigorous opposition of respondent to the petition for declaration of nullity. In any event, the fiscals participation in the hearings before the trial court is extant from the records of this case. As earlier noted, the factual findings of the RTC are now deemed binding on this Court, owing to the great weight accorded to the opinion of the primary trier of facts, and the refusal of the Court of Appeals to dispute the veracity of these facts. As such, it must be considered that respondent had consistently lied about many material aspects as to her character and personality. The question remains whether her pattern of fabrication sufficiently establishes her psychological incapacity, consistent with Article 36 and generally, the Molina guidelines.

We find that the present case sufficiently satisfies the guidelines in Molina. First. Petitioner had sufficiently overcome his burden in proving the psychological incapacity of his spouse. Apart from his own testimony, he presented witnesses who corroborated his allegations on his wifes behavior, and certifications from Blackgold Records and the Philippine Village Hotel Pavillon which disputed respondents claims pertinent to her alleged singing career. He also presented two (2) expert witnesses from the field of psychology who testified that the aberrant behavior of respondent was tantamount to psychological incapacity. In any event, both courts below considered petitioners evidence as credible enough. Even the appellate court acknowledged that respondent was not totally honest with petitioner. 80 As in all civil matters, the petitioner in an action for declaration of nullity under Article 36 must be able to establish the cause of action with a preponderance of evidence. However, since the action cannot be considered as a non-public matter between private parties, but is impressed with State interest, the Family Code likewise requires the participation of the State, through the prosecuting attorney, fiscal, or Solicitor General, to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. Thus, even if the petitioner is able establish the psychological incapacity of respondent with preponderant evidence, any finding of collusion among the parties would necessarily negate such proofs. Second. The root cause of respondents psychological incapacity has been medically or clinically identified, alleged in the complaint, sufficiently proven by experts, and clearly explained in the trial courts decision. The initiatory complaint alleged that respondent, from the start, had exhibited unusual and abnormal behavior "of peren[n]ially telling lies, fabricating ridiculous stories, and inventing personalities and situations," of writing letters to petitioner using fictitious names, and of lying about her actual occupation, income, educational attainment, and family background, among others.81 These allegations, initially characterized in generalities, were further linked to medical or clinical causes by expert witnesses from the field of psychology. Petitioner presented two (2) such witnesses in particular. Dr. Abcede, a psychiatrist who had headed the department of psychiatry of at least two (2) major hospitals,82 testified as follows: WITNESS: Given that as a fact, which is only based on the affidavit provided to me, I can say that there are a couple of things that [are] terribly wrong with the standards. There are a couple of things that seems (sic) to be repeated over and over again in the affidavit. One of which is the persistent, constant and repeated lying of the "respondent"; which, I think, based on assessment of normal behavior of an individual, is abnormal or pathological. x x x ATTY. RAZ: (Back to the witness) Q- Would you say then, Mr. witness, that because of these actuations of the respondent she is then incapable of performing the basic obligations of her marriage? A- Well, persistent lying violates the respect that one owes towards another. The lack of concern, the lack of love towards the person, and it is also something that endangers human relationship. You see, relationship is based on communication between individuals and what we generally communicate are our thoughts and feelings. But then when one talks and expresse[s] their feelings, [you] are expected to tell the truth. And therefore, if you constantly lie, what do you think is going to

happen as far as this relationship is concerned. Therefore, it undermines that basic relationship that should be based on love, trust and respect. Q- Would you say then, Mr. witness, that due to the behavior of the respondent in constantly lying and fabricating stories, she is then incapable of performing the basic obligations of the marriage? xxx ATTY. RAZ: (Back to the witness) Q- Mr. witness, based on the testimony of Mr. Levy Mendoza, who is the third witness for the petitioner, testified that the respondent has been calling up the petitioners officemates and ask him (sic) on the activities of the petitioner and ask him on the behavior of the petitioner. And this is specifically stated on page six (6) of the transcript of stenographic notes, what can you say about this, Mr. witness? A- If an individual is jealous enough to the point that he is paranoid, which means that there is no actual basis on her suspect (sic) that her husband is having an affair with a woman, if carried on to the extreme, then that is pathological. That is not abnormal. We all feel jealous, in the same way as we also lie every now and then; but everything that is carried out in extreme is abnormal or pathological. If there is no basis in reality to the fact that the husband is having an affair with another woman and if she persistently believes that the husband is having an affair with different women, then that is pathological and we call that paranoid jealousy. Q- Now, if a person is in paranoid jealousy, would she be considered psychologically incapacitated to perform the basic obligations of the marriage? A- Yes, Maam.83 The other witness, Dr. Lopez, was presented to establish not only the psychological incapacity of respondent, but also the psychological capacity of petitioner. He concluded that respondent "is [a] pathological liar, that [she continues] to lie [and] she loves to fabricate about herself." 84 These two witnesses based their conclusions of psychological incapacity on the case record, particularly the trial transcripts of respondents testimony, as well as the supporting affidavits of petitioner. While these witnesses did not personally examine respondent, the Court had already held in Marcos v. Marcos85 that personal examination of the subject by the physician is not required for the spouse to be declared psychologically incapacitated. 86 We deem the methodology utilized by petitioners witnesses as sufficient basis for their medical conclusions. Admittedly, Drs. Abcede and Lopezs common conclusion of respondents psychological incapacity hinged heavily on their own acceptance of petitioners version as the true set of facts. However, since the trial court itself accepted the veracity of petitioners factual premises, there is no cause to dispute the conclusion of psychological incapacity drawn therefrom by petitioners expert witnesses. Also, with the totality of the evidence presented as basis, the trial court explicated its finding of psychological incapacity in its decision in this wise: To the mind of the Court, all of the above are indications that respondent is psychologically incapacitated to perform the essential obligations of marriage. It has been shown clearly from her actuations that respondent has that propensity for telling lies about almost anything, be it her occupation, her state of health, her singing abilities, her income, etc. She has this fantastic ability to

invent and fabricate stories and personalities. She practically lived in a world of make believe making her therefore not in a position to give meaning and significance to her marriage to petitioner. In persistently and constantly lying to petitioner, respondent undermined the basic tenets of relationship between spouses that is based on love, trust and respect. As concluded by the psychiatrist presented by petitioner, such repeated lying is abnormal and pathological and amounts to psychological incapacity.87 Third. Respondents psychological incapacity was established to have clearly existed at the time of and even before the celebration of marriage. She fabricated friends and made up letters from fictitious characters well before she married petitioner. Likewise, she kept petitioner in the dark about her natural childs real parentage as she only confessed when the latter had found out the truth after their marriage. Fourth. The gravity of respondents psychological incapacity is sufficient to prove her disability to assume the essential obligations of marriage. It is immediately discernible that the parties had shared only a little over a year of cohabitation before the exasperated petitioner left his wife. Whatever such circumstance speaks of the degree of tolerance of petitioner, it likewise supports the belief that respondents psychological incapacity, as borne by the record, was so grave in extent that any prolonged marital life was dubitable. It should be noted that the lies attributed to respondent were not adopted as false pretenses in order to induce petitioner into marriage. More disturbingly, they indicate a failure on the part of respondent to distinguish truth from fiction, or at least abide by the truth. Petitioners witnesses and the trial court were emphatic on respondents inveterate proclivity to telling lies and the pathologic nature of her mistruths, which according to them, were revelatory of respondents inability to understand and perform the essential obligations of marriage. Indeed, a person unable to distinguish between fantasy and reality would similarly be unable to comprehend the legal nature of the marital bond, much less its psychic meaning, and the corresponding obligations attached to marriage, including parenting. One unable to adhere to reality cannot be expected to adhere as well to any legal or emotional commitments. The Court of Appeals somehow concluded that since respondent allegedly tried her best to effect a reconciliation, she had amply exhibited her ability to perform her marital obligations. We are not convinced. Given the nature of her psychological condition, her willingness to remain in the marriage hardly banishes nay extenuates her lack of capacity to fulfill the essential marital obligations. Respondents ability to even comprehend what the essential marital obligations are is impaired at best. Considering that the evidence convincingly disputes respondents ability to adhere to the truth, her avowals as to her commitment to the marriage cannot be accorded much credence. At this point, it is worth considering Article 45(3) of the Family Code which states that a marriage may be annulled if the consent of either party was obtained by fraud, and Article 46 which enumerates the circumstances constituting fraud under the previous article, clarifies that "no other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage." It would be improper to draw linkages between misrepresentations made by respondent and the misrepresentations under Articles 45 (3) and 46. The fraud under Article 45(3) vitiates the consent of the spouse who is lied to, and does not allude to vitiated consent of the lying spouse. In this case, the misrepresentations of respondent point to her own inadequacy to cope with her marital obligations, kindred to psychological incapacity under Article 36. Fifth. Respondent is evidently unable to comply with the essential marital obligations as embraced by Articles 68 to 71 of the Family Code. Article 68, in particular, enjoins the spouses to live together,

observe mutual love, respect and fidelity, and render mutual help and support. As noted by the trial court, it is difficult to see how an inveterate pathological liar would be able to commit to the basic tenets of relationship between spouses based on love, trust and respect. Sixth. The Court of Appeals clearly erred when it failed to take into consideration the fact that the marriage of the parties was annulled by the Catholic Church. The appellate court apparently deemed this detail totally inconsequential as no reference was made to it anywhere in the assailed decision despite petitioners efforts to bring the matter to its attention. 88 Such deliberate ignorance is in contravention of Molina, which held that interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. As noted earlier, the Metropolitan Tribunal of the Archdiocese of Manila decreed the invalidity of the marriage in question in a Conclusion89 dated 30 March 1995, citing the "lack of due discretion" on the part of respondent.90Such decree of nullity was affirmed by both the National Appellate Matrimonial Tribunal,91 and the Roman Rota of the Vatican.92 In fact, respondents psychological incapacity was considered so grave that a restrictive clause93was appended to the sentence of nullity prohibiting respondent from contracting another marriage without the Tribunals consent. In its Decision dated 4 June 1995, the National Appellate Matrimonial Tribunal pronounced: The JURISRPRUDENCE in the Case maintains that matrimonial consent is considered ontologically defective and wherefore judicially ineffective when elicited by a Part Contractant in possession and employ of a discretionary judgment faculty with a perceptive vigor markedly inadequate for the practical understanding of the conjugal Covenant or serious impaired from the correct appreciation of the integral significance and implications of the marriage vows. The FACTS in the Case sufficiently prove with the certitude required by law that based on the depositions of the Partes in Causa and premised on the testimonies of the Common and Expert Witnesse[s], the Respondent made the marriage option in tenure of adverse personality constracts that were markedly antithetical to the substantive content and implications of the Marriage Covenant, and that seriously undermined the integrality of her matrimonial consent in terms of its deliberative component. In other words, afflicted with a discretionary faculty impaired in its practico-concrete judgment formation on account of an adverse action and reaction pattern, the Respondent was impaired from eliciting a judicially binding matrimonial consent. There is no sufficient evidence in the Case however to prove as well the fact of grave lack of due discretion on the part of the Petitioner.94 Evidently, the conclusion of psychological incapacity was arrived at not only by the trial court, but also by canonical bodies. Yet, we must clarify the proper import of the Church rulings annulling the marriage in this case. They hold sway since they are drawn from a similar recognition, as the trial court, of the veracity of petitioners allegations. Had the trial court instead appreciated respondents version as correct, and the appellate court affirmed such conclusion, the rulings of the Catholic Church on this matter would have diminished persuasive value. After all, it is the factual findings of the judicial trier of facts, and not that of the canonical courts, that are accorded significant recognition by this Court. Seventh. The final point of contention is the requirement in Molina that such psychological incapacity be shown to be medically or clinically permanent or incurable. It was on this score that the Court of Appeals reversed the judgment of the trial court, the appellate court noting that it did not appear certain that respondents condition was incurable and that Dr. Abcede did not testify to such effect. 95

Petitioner points out that one month after he and his wife initially separated, he returned to her, desiring to make their marriage work. However, respondents aberrant behavior remained unchanged, as she continued to lie, fabricate stories, and maintained her excessive jealousy. From this fact, he draws the conclusion that respondents condition is incurable. From the totality of the evidence, can it be definitively concluded that respondents condition is incurable? It would seem, at least, that respondents psychosis is quite grave, and a cure thereof a remarkable feat. Certainly, it would have been easier had petitioners expert witnesses characterized respondents condition as incurable. Instead, they remained silent on whether the psychological incapacity was curable or incurable. But on careful examination, there was good reason for the experts taciturnity on this point. The petitioners expert witnesses testified in 1994 and 1995, and the trial court rendered its decision on 10 August 1995. These events transpired well before Molina was promulgated in 1997 and made explicit the requirement that the psychological incapacity must be shown to be medically or clinically permanent or incurable. Such requirement was not expressly stated in Article 36 or any other provision of the Family Code. On the other hand, the Court in Santos, which was decided in January 1995, began its discussion by first citing the deliberations of the Family Code committee, 96 then the opinion of canonical scholars,97 before arriving at its formulation of the doctrinal definition of psychological incapacity.98 Santos did refer to Justice Caguioas opinion expressed during the deliberations that "psychological incapacity is incurable,"99 and the view of a former presiding judge of the Metropolitan Marriage Tribunal of the Archdiocese of Manila that psychological incapacity must be characterized "by (a) gravity, (b) juridical antecedence, and (c) incurability." 100 However, in formulating the doctrinal rule on psychological incapacity, the Court in Santos omitted any reference to incurability as a characteristic of psychological incapacity.101 This disquisition is material as Santos was decided months before the trial court came out with its own ruling that remained silent on whether respondents psychological incapacity was incurable. Certainly, Santos did not clearly mandate that the incurability of the psychological incapacity be established in an action for declaration of nullity. At least, there was no jurisprudential clarity at the time of the trial of this case and the subsequent promulgation of the trial courts decision that required a medical finding of incurability. Such requisite arose only with Molina in 1997, at a time when this case was on appellate review, or after the reception of evidence. We are aware that in Pesca v. Pesca,102 the Court countered an argument that Molina and Santos should not apply retroactively with the observation that the interpretation or construction placed by the courts of a law constitutes a part of that law as of the date the statute in enacted. 103 Yet we approach this present case from utterly practical considerations. The requirement that psychological incapacity must be shown to be medically or clinically permanent or incurable is one that necessarily cannot be divined without expert opinion. Clearly in this case, there was no categorical averment from the expert witnesses that respondents psychological incapacity was curable or incurable simply because there was no legal necessity yet to elicit such a declaration and the appropriate question was not accordingly propounded to him. If we apply Pesca without deep reflection, there would be undue prejudice to those cases tried before Molina or Santos, especially those presently on appellate review, where presumably the respective petitioners and their expert witnesses would not have seen the need to adduce a diagnosis of incurability. It may hold in those cases, as in this case, that the psychological incapacity of a spouse is actually incurable, even if not pronounced as such at the trial court level.

We stated earlier that Molina is not set in stone, and that the interpretation of Article 36 relies heavily on a case-to-case perception. It would be insensate to reason to mandate in this case an expert medical or clinical diagnosis of incurability, since the parties would have had no impelling cause to present evidence to that effect at the time this case was tried by the RTC more than ten (10) years ago. From the totality of the evidence, we are sufficiently convinced that the incurability of respondents psychological incapacity has been established by the petitioner. Any lingering doubts are further dispelled by the fact that the Catholic Church tribunals, which indubitably consider incurability as an integral requisite of psychological incapacity, were sufficiently convinced that respondent was so incapacitated to contract marriage to the degree that annulment was warranted. All told, we conclude that petitioner has established his cause of action for declaration of nullity under Article 36 of the Family Code. The RTC correctly ruled, and the Court of Appeals erred in reversing the trial court. There is little relish in deciding this present petition, pronouncing as it does the marital bond as having been inexistent in the first place. It is possible that respondent, despite her psychological state, remains in love with petitioner, as exhibited by her persistent challenge to the petition for nullity. In fact, the appellate court placed undue emphasis on respondents avowed commitment to remain in the marriage. Yet the Court decides these cases on legal reasons and not vapid sentimentality. Marriage, in legal contemplation, is more than the legitimatization of a desire of people in love to live together. WHEREFORE, the petition is GRANTED. The decision of the RTC dated 10 August 1995, declaring the marriage between petitioner and respondent NULL and VOID under Article 36 of the Family Code, is REINSTATED. No costs. SO ORDERED. DANTE O. TINGA Associate Justice SECOND DIVISION G.R. No. 141528 October 31, 2006

OSCAR P. MALLION, petitioner, vs. EDITHA ALCANTARA, respondent.

DECISION

AZCUNA, J.: This is a petition for review on certiorari under Rule 45 of the Rules of Court raising a question of law: Does a previous final judgment denying a petition for declaration of nullity on the ground of

psychological incapacity bar a subsequent petition for declaration of nullity on the ground of lack of marriage license? The facts are not disputed: On October 24, 1995, petitioner Oscar P. Mallion filed a petition 1 with the Regional Trial Court (RTC), Branch 29, of San Pablo City seeking a declaration of nullity of his marriage to respondent Editha Alcantara under Article 36 of Executive Order No. 209, as amended, otherwise known as the Family Code, citing respondents alleged psychological incapacity. The case was docketed as Civil Case No. SP 4341-95. After trial on the merits, the RTC denied the petition in a decision 2 dated November 11, 1997 upon the finding that petitioner "failed to adduce preponderant evidence to warrant the grant of the relief he is seeking."3 The appeal filed with the Court of Appeals was likewise dismissed in a resolution4 dated June 11, 1998 for failure of petitioner to pay the docket and other lawful fees within the reglementary period. After the decision in Civil Case No. SP 4341-95 attained finality, petitioner filed on July 12, 1999 another petition5for declaration of nullity of marriage with the RTC of San Pablo City, this time alleging that his marriage with respondent was null and void due to the fact that it was celebrated without a valid marriage license. For her part, respondent filed an answer with a motion to dismiss6 dated August 13, 1999, praying for the dismissal of the petition on the ground of res judicata and forum shopping. In an order7 dated October 8, 1999, the RTC granted respondents motion to dismiss, the dispositive portion of which reads: WHEREFORE, for Forum Shopping and Multiplicity of Suits, the Motion to Dismiss is GRANTED. This case is DISMISSED. SO ORDERED.8 Petitioners motion for reconsideration was also denied in an order 9 dated January 21, 2000. Hence, this petition which alleges, as follows: A. IN DISMISSING PETITIONERS PETITION FOR THE DECLARATION OF HIS MARRIAGE AS NULL AND VOID AB INITIO FOR LACK OF THE REQUISITE MARRIAGE LICENSE BECAUSE OF (THE) DISMISSAL OF AN EARLIER PETITION FOR DECLARATION OF NULLITY OF THE SAME MARRIAGE ON THE GROUND OF HIS WIFES PSYCHOLOGICAL INCAPACITY UNDER ARTICLE 36 OF THE FAMILY CODE, THE TRIAL COURT HAD DECIDED A QUESTION OF SUBSTANCE WHICH HAS PROBABLY NOT HERETOFORE BEEN DETERMINED SQUARELY AND DEFINITIVELY BY THIS COURT, OR HAD DECIDED IT IN A WAY NOT IN ACCORD WITH LAW. B. IN DISMISSING PETITIONERS PETITION FOR THE DECLARATION OF NULLITY OF HIS MARRIAGE FOR LACK OF THE REQUISITE MARRIAGE LICENSE, THE TRIAL COURT HAD CONFUSED, DISTORTED AND MISAPPLIED THE FUNDAMENTAL RULES AND CONCEPTS ON RES JUDICATA, SPLITTING OF A CAUSE OF ACTION AND FORUM SHOPPING.10 Petitioner argues that while the relief prayed for in the two cases was the same, that is, the declaration of nullity of his marriage to respondent, the cause of action in the earlier case was

distinct and separate from the cause of action in the present case because the operative facts upon which they were based as well as the evidence required to sustain either were different. Because there is no identity as to the cause of action, petitioner claims that res judicata does not lie to bar the second petition. In this connection, petitioner maintains that there was no violation of the rule on forum shopping or of the rule which proscribes the splitting of a cause of action. On the other hand, respondent, in her comment dated May 26, 2000, counters that while the present suit is anchored on a different ground, it still involves the same issue raised in Civil Case No. SP 4341-95, that is, the validity of petitioner and respondents marriage, and prays for the same remedy, that is, the declaration of nullity of their marriage. Respondent thus contends that petitioner violated the rule on forum shopping. Moreover, respondent asserts that petitioner violated the rule on multiplicity of suits as the ground he cites in this petition could have been raised during the trial in Civil Case No. SP 4341-95. The petition lacks merit. The issue before this Court is one of first impression. Should the matter of the invalidity of a marriage due to the absence of an essential requisite prescribed by Article 4 of the Family Code be raised in the same proceeding where the marriage is being impugned on the ground of a partys psychological incapacity under Article 36 of the Family Code? Petitioner insists that because the action for declaration of nullity of marriage on the ground of psychological incapacity and the action for declaration of nullity of marriage on the ground of absence of marriage license constitute separate causes of action, the present case would not fall under the prohibition against splitting a single cause of action nor would it be barred by the principle of res judicata. The contention is untenable. Res judicata is defined as "a matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment. It also refers to the rule that a final judgment or decree on the merits by a court of competent jurisdiction is conclusive of the rights of the parties or their privies in all later suits on points and matters determined in the former suit." 11 This doctrine is a rule which pervades every well-regulated system of jurisprudence and is founded upon the following precepts of common law, namely: (1) public policy and necessity, which makes it to the interest of the State that there should be an end to litigation, and (2) the hardship on the individual that he should be vexed twice for the same cause. A contrary doctrine would subject the public peace and quiet to the will and neglect of individuals and prefer the gratification of the litigious disposition on the part of suitors to the preservation of the public tranquility and happiness. 12 In this jurisdiction, the concept of res judicata is embodied in Section 47 (b) and (c) of Rule 39 of the Rules of Court, thus: SEC. 47. Effect of judgments or final orders. The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows: (a) In case of a judgment or final order against a specific thing or in respect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the

judgment or final order is conclusive upon the title to the thing, the will or administration, or the condition, status or relationship of the person; however, the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate; (b) In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity; and, (c) In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. The above provision outlines the dual aspect of res judicata.13 Section 47 (b) pertains to it in its concept as "bar by prior judgment" or "estoppel by verdict," which is the effect of a judgment as a bar to the prosecution of a second action upon the same claim, demand or cause of action. On the other hand, Section 47 (c) pertains tores judicata in its concept as "conclusiveness of judgment" or otherwise known as the rule of auter action pendantwhich ordains that issues actually and directly resolved in a former suit cannot again be raised in any future case between the same parties involving a different cause of action.14 Res judicata in its concept as a bar by prior judgment obtains in the present case. Res judicata in this sense requires the concurrence of the following requisites: (1) the former judgment is final; (2) it is rendered by a court having jurisdiction over the subject matter and the parties; (3) it is a judgment or an orderon the merits; and (4) there is -- between the first and the second actions -- identity of parties, of subject matter, and of causes of action. 15 Petitioner does not dispute the existence of the first three requisites. What is in issue is the presence of the fourth requisite. In this regard, the test to determine whether the causes of action are identical is to ascertain whether the same evidence will sustain both actions, or whether there is an identity in the facts essential to the maintenance of the two actions. If the same facts or evidence would sustain both, the two actions are considered the same, and a judgment in the first case is a bar to the subsequent action.16 Based on this test, petitioner would contend that the two petitions brought by him seeking the declaration of nullity of his marriage are anchored on separate causes of action for the evidence necessary to sustain the first petition which was anchored on the alleged psychological incapacity of respondent is different from the evidence necessary to sustain the present petition which is anchored on the purported absence of a marriage license. Petitioner, however, forgets that he is simply invoking different grounds for the same cause of action. By definition, a cause of action is the act or omission by which a party violates the right of another.17 In both petitions, petitioner has the same cause - the declaration of nullity of his marriage to respondent. What differs is the ground upon which the cause of action is predicated. These grounds cited by petitioner essentially split the various aspects of the pivotal issue that holds the key to the resolution of this controversy, that is, the actual status of petitioner and respondents marriage. Furthermore, the instant case is premised on the claim that the marriage is null and void because no valid celebration of the same took place due to the alleged lack of a marriage license. In Civil Case

No. SP 4341-95, however, petitioner impliedly conceded that the marriage had been solemnized and celebrated in accordance with law. Petitioner is now bound by this admission. The alleged absence of a marriage license which petitioner raises now could have been presented and heard in the earlier case. Suffice it to state that parties are bound not only as regards every matter offered and received to sustain or defeat their claims or demand but as to any other admissible matter which might have been offered for that purpose and of all other matters that could have been adjudged in that case. 18 It must be emphasized that a party cannot evade or avoid the application of res judicata by simply varying the form of his action or adopting a different method of presenting his case. 19 As this Court stated in Perez v. Court of Appeals:20 x x x the statement of a different form of liability is not a different cause of action, provided it grows out of the same transaction or act and seeks redress for the wrong. Two actions are not necessarily for different causes of action simply because the theory of the second would not have been open under the pleadings in the first. A party cannot preserve the right to bring a second action after the loss of the first merely by having circumscribed and limited theories of recovery opened by the pleadings in the first. It bears stressing that a party cannot divide the grounds for recovery. A plaintiff is mandated to place in issue in his pleading, all the issues existing when the suit began. A lawsuit cannot be tried piecemeal. The plaintiff is bound to set forth in his first action every ground for relief which he claims to exist and upon which he relied, and cannot be permitted to rely upon them by piecemeal in successive action to recover for the same wrong or injury. A party seeking to enforce a claim, legal or equitable, must present to the court, either by the pleadings or proofs, or both, on the grounds upon which to expect a judgment in his favor. He is not at liberty to split up his demands, and prosecute it by piecemeal or present only a portion of the grounds upon which a special relief is sought and leave the rest to the presentment in a second suit if the first fails. There would be no end to litigation if such piecemeal presentation is allowed. (Citations omitted.) In sum, litigants are provided with the options on the course of action to take in order to obtain judicial relief. Once an option has been taken and a case is filed in court, the parties must ventilate all matters and relevant issues therein. The losing party who files another action regarding the same controversy will be needlessly squandering time, effort and financial resources because he is barred by law from litigating the same controversy all over again. 21 Therefore, having expressly and impliedly conceded the validity of their marriage celebration, petitioner is now deemed to have waived any defects therein. For this reason, the Court finds that the present action for declaration of nullity of marriage on the ground of lack of marriage license is barred by the decision dated November 11, 1997 of the RTC, Branch 29, of San Pablo City, in Civil Case No. SP 4341-95. WHEREFORE, the petition is DENIED for lack of merit. Costs against petitioner. SO ORDERED.

Puno, J., Chairperson, Sandoval-Gutierrez, Corona, and Garcia, JJ., concur. THIRD DIVISION

G.R. No. 94053 March 17, 1993 REPUBLIC OF THE PHILIPPINES, petitioner, vs. GREGORIO NOLASCO, respondent. The Solicitor General for plaintiff-appellee. Warloo G. Cardenal for respondent. RESOLUTION

FELICIANO, J.: On 5 August 1988, respondent Gregorio Nolasco filed before the Regional Trial Court of Antique, Branch 10, a petition for the declaration of presumptive death of his wife Janet Monica Parker, invoking Article 41 of the Family Code. The petition prayed that respondent's wife be declared presumptively dead or, in the alternative, that the marriage be declared null and void. 1 The Republic of the Philippines opposed the petition through the Provincial Prosecutor of Antique who had been deputized to assist the Solicitor-General in the instant case. The Republic argued, first, that Nolasco did not possess a "well-founded belief that the absent spouse was already dead," 2 and second, Nolasco's attempt to have his marriage annulled in the same proceeding was a "cunning attempt" to circumvent the law on marriage. 3 During trial, respondent Nolasco testified that he was a seaman and that he had first met Janet Monica Parker, a British subject, in a bar in England during one of his ship's port calls. From that chance meeting onwards, Janet Monica Parker lived with respondent Nolasco on his ship for six (6) months until they returned to respondent's hometown of San Jose, Antique on 19 November 1980 after his seaman's contract expired. On 15 January 1982, respondent married Janet Monica Parker in San Jose, Antique, in Catholic rites officiated by Fr. Henry van Tilborg in the Cathedral of San Jose. Respondent Nolasco further testified that after the marriage celebration, he obtained another employment contract as a seaman and left his wife with his parents in San Jose, Antique. Sometime in January 1983, while working overseas, respondent received a letter from his mother informing him that Janet Monica had given birth to his son. The same letter informed him that Janet Monica had left Antique. Respondent claimed he then immediately asked permission to leave his ship to return home. He arrived in Antique in November 1983. Respondent further testified that his efforts to look for her himself 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, 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 inquired from among friends but they too had no news of Janet Monica. On cross-examination, respondent stated that he had lived with and later married Janet Monica Parker despite his lack of knowledge as to her family background. He insisted that his wife continued to refuse to give him such information even after they were married. He also testified that he did not report the matter of Janet Monica's disappearance to the Philippine government authorities. Respondent Nolasco presented his mother, Alicia Nolasco, as his witness. She testified that her daughter-in-law Janet Monica had expressed a desire to return to England even before she had given birth to Gerry Nolasco on 7 December 1982. When asked why her daughter-in-law might have wished to leave Antique, respondent's mother replied that Janet Monica never got used to the rural way of life in San Jose, Antique. Alicia 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 (Alicia) failed to do so, she gave Janet Monica P22,000.00 for her expenses before she left on 22 December 1982 for England. She further claimed that she had no information as to the missing person's present whereabouts. The trial court granted Nolasco's petition in a Judgment dated 12 October 1988 the dispositive portion of which reads:
Wherefore, under Article 41, paragraph 2 of the Family Code of the Philippines (Executive Order No. 209, July 6, 1987, as amended by Executive Order No. 227, July 17, 1987) this Court hereby declares as presumptively dead Janet Monica Parker Nolasco, without prejudice to her reappearance. 4

The Republic appealed to the Court of Appeals contending that the trial court erred in declaring Janet Monica Parker presumptively dead because respondent Nolasco had failed to show that there existed a well founded belief for such declaration. The Court of Appeals affirmed the trial court's decision, holding that respondent had sufficiently established a basis to form a belief that his absent spouse had already died. The Republic, through the Solicitor-General, is now before this Court on a Petition for Review where the following allegations are made: 1. The Court of Appeals erred in affirming the trial court's finding that there existed a well-founded belief on the part of Nolasco that Janet Monica Parker was already dead; and
2. The Court of Appeals erred in affirming the trial Court's declaration that the petition was a proper case of the declaration of presumptive death under Article 41, Family Code. 5

The issue before this Court, as formulated by petitioner is "[w]hether or not Nolasco has a wellfounded belief that his wife is already dead." 6 The present case was filed before the trial court pursuant to Article 41 of the Family Code which provides that: 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 the subsequent

marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provision of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. (Emphasis supplied). When Article 41 is compared with the old provision of the Civil Code, which it superseded, 7 the following crucial differences emerge. Under Article 41, the time required for the presumption to arise has been shortened to four (4) years; however, there is need for a judicial declaration of presumptive death to enable the spouse present to remarry. 8 Also, Article 41 of the Family Code imposes a stricter standard than the Civil Code: Article 83 of the Civil Code merely requires either that there be no news that such absentee is still alive; or the absentee is generally considered to be dead and believed to be so by the spouse present, or is presumed dead under Article 390 and 391 of the Civil Code. 9 The Family Code, upon the other hand, prescribes as "well founded belief" that the absentee is already dead before a petition for declaration of presumptive death can be granted. As pointed out by the Solicitor-General, there are four (4) requisites for the declaration of presumptive death under Article 41 of the Family Code: 1. That the absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391, Civil Code; 2. That the present spouse wishes to remarry; 3. That the present spouse has a well-founded belief that the absentee is dead; and
4. That the present spouse files a summary proceeding for the declaration of presumptive death of the absentee. 10

Respondent naturally asserts that he had complied with all these requirements. 11 Petitioner's argument, upon the other hand, boils down to this: that respondent failed to prove that he had complied with the third requirement, i.e., the existence of a "well-founded belief" that the absent spouse is already dead. The Court believes that respondent Nolasco failed to conduct a search for his missing wife with such diligence as to give rise to a "well-founded belief" that she is dead. United States v. Biasbas, 12 is instructive as to degree of diligence required in searching for a missing spouse. In that case, defendant Macario Biasbas was charged with the crime of bigamy. He set-up the defense of a good faith belief that his first wife had already died. The Court held that defendant had not exercised due diligence to ascertain the whereabouts of his first wife, noting that:
While the defendant testified that he had made inquiries concerning the whereabouts of his wife, he fails to state of whom he made such inquiries. He did not even write to the

parents of his first wife, who lived in the Province of Pampanga, for the purpose of securing information concerning her whereabouts. He admits that he had a suspicion only that his first wife was dead. He admits that the only basis of his suspicion was the fact that she had been absent. . . . 13

In the case at bar, the Court considers that the investigation allegedly conducted by respondent in his attempt to ascertain Janet Monica Parker's whereabouts is too sketchy to form the basis of a reasonable or well-founded belief that she was already dead. When he arrived in San Jose, Antique after learning of Janet Monica's departure, instead of seeking the help of local authorities or of the British Embassy, 14 he secured another seaman's contract and went to London, a vast city of many millions of inhabitants, to look for her there. Q After arriving here in San Jose, Antique, did you exert efforts to inquire the whereabouts of your wife? A Yes, Sir. Court: How did you do that?
A I secured another contract with the ship and we had a trip to London and I went to London to look for her I could not find her (sic). 15 (Emphasis supplied)

Respondent's testimony, however, showed that he confused London for Liverpool and this casts doubt on his supposed efforts to locate his wife in England. The Court of Appeal's justification of the mistake, to wit:
. . . Well, while the cognoscente (sic) would readily know the geographical difference between London and Liverpool, for a humble seaman like Gregorio the two places could mean one place in England, the port where his ship docked and where he found Janet. Our own provincial folks, every time they leave home to visit relatives in Pasay City, Kalookan City, or Paraaque, would announce to friends and relatives, "We're going to Manila." This apparent error in naming of places of destination does not appear to be fatal. 16

is not well taken. There is no analogy between Manila and its neighboring cities, on one hand, and London and Liverpool, on the other, which, as pointed out by the Solicitor-General, are around three hundred fifty (350) kilometers apart. We do not consider that walking into a major city like Liverpool or London with a simple hope of somehow bumping into one particular person there which is in effect what Nolasco says he did can be regarded as a reasonably diligent search. The Court also views respondent's claim that Janet Monica declined to give any information as to her personal background even after she had married respondent 17 too convenient an excuse to justify his failure to locate her. The same can be said of the loss of the alleged letters respondent had sent to his wife which respondent claims were all returned to him. Respondent said he had lost these returned letters, under unspecified circumstances. Neither can this Court give much credence to respondent's bare assertion that he had inquired from their friends of her whereabouts, considering that respondent did not identify those friends in his testimony. The Court of Appeals ruled that since the prosecutor failed to rebut this evidence during

trial, it is good evidence. But this kind of evidence cannot, by its nature, be rebutted. In any case, admissibility is not synonymous with credibility. 18 As noted before, there are serious doubts to respondent's credibility. Moreover, even if admitted as evidence, said testimony merely tended to show that the missing spouse had chosen not to communicate with their common acquaintances, and not that she was dead. Respondent testified that immediately after receiving his mother's letter 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) months from January 1983, when he allegedly asked leave from his captain, to November 1983 when be finally reached San Jose. Respondent, moreover, claimed he married Janet Monica Parker without inquiring about her parents and their place of residence. 19 Also, respondent failed to explain why he did not even try to get the help of the police or other authorities in London and Liverpool in his effort to find his wife. The circumstances of Janet Monica's departure and respondent's subsequent behavior make it very difficult to regard the claimed belief that Janet Monica was dead a well-founded one. In Goitia v. Campos-Rueda, 20 the Court stressed that:
. . . Marriage is an institution, the maintenance of which in its purity the 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 make. . . . . 21 (Emphasis supplied)

By the same token, the spouses should not be allowed, by the simple expedient of agreeing that one of them leave the conjugal abode and never to return again, to circumvent the policy of the laws on marriage. The Court notes that respondent even tried to have his marriage annulled before the trial court in the same proceeding. In In Re Szatraw, 22 the Court warned against such collusion between the 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 of 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 familyand 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 bas 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 bas 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. WHEREFORE, the Decision of the Court of Appeals dated 23 February 1990, affirming the trial court's decision declaring Janet Monica Parker presumptively dead is hereby REVERSED and both Decisions are hereby NULLIFIED and SET ASIDE. Costs against respondent. Bidin, Davide, Jr., Romero and Melo, JJ., concur. Gutierrez, Jr. J., is on leave.

THIRD DIVISION

[G.R. No. 160258. January 19, 2005]

REPUBLIC OF THE PHILIPPINES, petitioner, vs. GLORIA BERMUDEZLORINO, respondent. DECISION

GARCIA, J.:

Via this petition for review on certiorari under Rule 45 of the Rules of Court, petitioner Republic of the Philippines, represented by the Office of the Solicitor General (OSG), seeks the reversal and setting aside of the decision dated September 23, 2003 of the Court of Appeals in CA-G.R. CV No. 73884, which affirmed on appeal an earlier decision of the Regional Trial Court (RTC) at San Mateo, Rizal in a summary judicial proceeding thereat commenced by the herein respondent Gloria Bermudez-Lorino for the declaration of the presumptive death of her absent spouse, Francisco Lorino, Jr., based on the provisions of Article 41 of the Family Code, for purposes of remarriage.
The facts may be summarized, as follows:

Respondent Gloria Bermudez-Lorino (Gloria for brevity), and her husband were married on June 12, 1987. Out of this marriage, she begot three (3) children, namely: Francis Jeno, Fria Lou and Fatima. Before they got married in 1987, Gloria was unaware that her husband was a habitual drinker, possessed with violent character/attitude, and had the propensity to go out with friends to the extent of being unable to engage in any gainful work. Because of her husbands violent character, Gloria found it safer to leave him behind and decided to go back to her parents together with her three (3) children. In order to support the children, Gloria was compelled to work abroad. From the time of her physical separation from her husband in 1991, Gloria has not heard of him at all. She had absolutely no communications with him, or with any of his relatives. On August 14, 2000, nine (9) years after she left her husband, Gloria filed a verified petition with the Regional Trial Court (RTC) at San Mateo, Rizal under the rules on Summary Judicial Proceedings in the Family Law provided for in the Family Code, which petition was docketed in the same court as Special Proceeding No. 325-00 SM. On August 28, 2000, the RTC issued an order directing, inter alia, the publication of the petition in a newspaper of general circulation, thus: A verified petition was filed by herein petitioner through counsel alleging that she married Francisco Lorino, Jr. on June 12, 1987 but because of the violent character of his husband, she decided to go back to her parents and lived separately from her husband. After nine (9) years, there was absolutely no news about him and she believes that he is already dead and is now seeking through this petition for a Court declaration that her husband is judicially presumed dead for the purpose of remarriage. Finding the said petition to be sufficient in form and substance, the same is hereby set for hearing before this Court on September 18, 2000 at 8:30 oclock in the morning at which place, date and time, any or all persons who may claim any interest thereto may appear and show cause why the same should not be granted. Let a copy of this Order be published in a newspaper of general circulation in this province once a week for three (3) consecutive weeks and be posted in the bulletin boards of the Hall of Justice and the Municipal Hall, San Mateo, Rizal, all at the expense of the petitioner.

Furnish the Office of the Solicitor General a copy of this Order together with a copy of the petition. Further, send a copy of this Order to the last known address of Francisco Lorino, Jr. at 719 Burgos St., Sta. Elena, Marikina City. SO ORDERED
[1]

The evidence in support of the summary judicial proceeding are: the order of publication dated August 28, 2000 (Exhibit A); affidavit of publication dated September 16, 2000 (Exhibit B) ; copies of the newspapers where the order appeared (Exhibits C to E-1) ; a deposition dated September 4, 2000 of Gloria taken in Hong Kong (Exhibit G) ; Glorias affidavit dated October 21, 1999, also executed in Hong Kong (Exhibit G-1) ; and a certification by Department of Foreign Affairs Authentication Officer, Catalina C. Gonzalez, dated November 3, 1999, therein certifying that the signature of Vice Consul Adriane Bernie C. Candolada, appearing below the jurat in Glorias affidavit of October 21, 1999, is authentic (Exhibit G-2) .
[2] [3] [4] [5] [6]

In a decision dated November 7, 2001, the RTC, finding merit in the summary petition, rendered judgment granting the same, to wit: WHEREFORE, this Court in view of the facts and circumstances obtaining, finds the petition with merit and hereby grants its imprimatur to the petition. Judgment is hereby rendered declaring the presumptive death/absence of Francisco Lorino, Jr. pursuant to Art. 41 of the New Family Code but subject to all restrictions and conditions provided therein. SO ORDERED.
[7]

Despite the judgment being immediately final and executory under the provisions of Article 247 of the Family Code, thus: Art. 247. The judgment of the court shall be immediately final and executory, the Office of the Solicitor General, for the Republic of the Philippines, nevertheless filed a Notice of Appeal. Acting thereon, the RTC had the records elevated to the Court of Appeals which docketed the case as CA-G.R. CV No. 73884.
[8]

In a decision dated September 23, 2003, the Court of Appeals, treating the case as an ordinary appealed case under Rule 41 of the Revised Rules on Civil Procedure, denied the Republics appeal and accordingly affirmed the appealed RTC decision:

WHEREFORE, based on the foregoing premises, the instant appeal is DENIED. Accordingly, the appealed November 7, 2001 Decision of the Regional Trial Court of San Mateo, Rizal in Spec. Proc. No. 325-00 SM is hereby AFFIRMED. SO ORDERED.
[9]

Without filing any motion for reconsideration, petitioner Republic directly went to this Court via the instant recourse under Rule 45, maintaining that the petition raises a pure question of law that does not require prior filing of a motion for reconsideration. The foregoing factual antecedents present to this Court the following issues: WHETHER OR NOT THE COURT OF APPEALS DULY ACQUIRED JURISDICTION OVER THE APPEAL ON A FINAL AND EXECUTORY JUDGMENT OF THE REGIONAL TRIAL COURT; and WHETHER OR NOT THE FACTUAL AND LEGAL BASES FOR A JUDICIAL DECLARATION OF PRESUMPTIVE DEATH UNDER ARTICLE 41 OF THE FAMILY CODE WERE DULY ESTABLISHED IN THIS CASE. The Court rules against petitioner Republic. Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW, sets the tenor for cases covered by these rules, to wit: Art. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all cases provided for in this Code requiring summary court proceedings. Such cases shall be decided in an expeditious manner without regard to technical rules. Judge Elizabeth Balquin-Reyes of RTC, Branch 75, San Mateo, Rizal duly complied with the above-cited provision by expeditiously rendering judgment within ninety (90) days after the formal offer of evidence by therein petitioner, Gloria Bermudez-Lorino. The problem came about when the judge gave due course to the Republics appeal upon the filing of a Notice of Appeal, and had the entire records of the case elevated to the Court of Appeals, stating in her order of December 18, 2001, as follows: Notice of Appeal having been filed through registered mail on November 22, 2001 by the Office of the Solicitor General who received a copy of the Decision in this case on

November 14, 2001, within the reglementary period fixed by the Rules, let the entire records of this case be transmitted to the Court of Appeals for further proceedings. SO ORDERED.
[10]

In Summary Judicial Proceedings under the Family Code, there is no reglementary period within which to perfect an appeal, precisely because judgments rendered thereunder, by express provision of Section 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 Republics appeal and order the transmittal of the entire records of the case to the Court of Appeals. An appellate court acquires no jurisdiction to review a judgment which, by express provision of law, is immediately final and executory. As we have said in Veloria vs. Comelec, the right to appeal is not a natural right nor is it a part of due process, for it is merely a statutory privilege. Since, by express mandate of Article 247 of the Family Code, all judgments rendered in summary judicial proceedings in Family Law are immediately final and executory, the right to appeal was not granted to any of the parties therein. The Republic of the Philippines, as oppositor in the petition for declaration of presumptive death, should not be treated differently. It had no right to appeal the RTC decision of November 7, 2001.
[11]

It was fortunate, though, that the Court of Appeals, acting through its Special Fourth Division, with Justice Elvi John S. Asuncion as Acting Chairman and ponente, denied the Republics appeal and affirmed without modification the final and executory judgment of the lower court. For, as we have held in Nacuray vs. NLRC:
[12]

Nothing is more settled in law than that when a judgment becomes final and executory it becomes immutable and unalterable. The same may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and whether made by the highest court of the land (citing Nunal v. Court of Appeals, G.R. No. 94005, 6 April 1993, 221 SCRA 26). But, if only to set the records straight and for the future guidance of the bench and the bar, let it be stated that the RTCs decision dated November 7, 2001, was immediately final and executory upon notice to the parties. It was erroneous for the OSG to file a notice of appeal, and for the RTC to give due course thereto. The Court of Appeals acquired no jurisdiction over the case, and should have dismissed the appeal outright on that ground.

This judgment of denial was elevated to this Court via a petition for review on certiorari under Rule 45. Although the result of the Court of Appeals denial of the appeal would apparently be the same, there is a big difference between having the supposed appeal dismissed for lack of jurisdiction by virtue of the fact that the RTC decision sought to be appealed is immediately final and executory, and the denial of the appeal for lack of merit. In the former, the supposed appellee can immediately ask for the issuance of an Entry of Judgment in the RTC, whereas, in the latter, the appellant can still raise the matter to this Court on petition for review and the RTC judgment cannot be executed until this Court makes the final pronouncement. The Court, therefore, finds in this case grave error on the part of both the RTC and the Court of Appeals. To stress, the Court of Appeals should have dismissed the appeal on ground of lack of jurisdiction, and reiterated the fact that the RTC decision of November 7, 2001 was immediately final and executory. As it were, the Court of Appeals committed grave reversible error when it failed to dismiss the erroneous appeal of the Republic on ground of lack of jurisdiction because, by express provision of law, the judgment was not appealable. WHEREFORE, the instant petition is hereby DENIED for lack of merit. No pronouncement as to costs. SO ORDERED. Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ., concur. Panganiban, (Chairman), J., in the result.

SECOND DIVISION

EDUARDO P. MANUEL, Petitioner,

G.R. No. 165842

Present:

PUNO, J., Chairman,

AUSTRIAMARTINEZ, CALLEJO, SR., - versus TINGA, and CHICO-NAZARIO,* JJ.

Promulgated: PEOPLE OF THE PHILIPPINES, Respondent. November 29, 2005

x-----------------------------------------------------------------------------------------x DECISION CALLEJO, SR., J.:

Before us is a petition for review on certiorari of the Decision[1] of the Court of Appeals (CA) in CA-G.R. CR No. 26877, affirming the Decision[2] of the Regional Trial Court (RTC) of Baguio City, Branch 3, convicting Eduardo P. Manuel of bigamy in Criminal Case No. 19562-R.

Eduardo was charged with bigamy in an Information filed on November 7, 2001, the accusatory portion of which reads:

That on or about the 22nd day of April, 1996, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused EDUARDO P. MANUEL, being then previously and legally married to RUBYLUS [GAA] and without the said marriage having been legally dissolved, did then and there willfully, unlawfully and feloniously contract a second marriage with TINA GANDALERAMANUEL, herein complainant, who does not know the existence of the first marriage of said EDUARDO P. MANUEL to Rubylus [Gaa].

CONTRARY TO LAW.

[3]

The prosecution adduced evidence that on July 28, 1975, Eduardo was married to Rubylus Gaa before Msgr. Feliciano Santos in Makati, which was then still a municipality of the Province of Rizal.[4] He met the private complainant Tina B. Gandalera in Dagupan City sometime in January 1996. She stayed in Bonuan, Dagupan City for two days looking for a friend. Tina was then 21 years old, a Computer Secretarial student, while Eduardo was 39. Afterwards, Eduardo went to Baguio City to visit her. Eventually, as one thing led to another, they went to a motel where, despite Tinas resistance, Eduardo succeeded in having his way with her. Eduardo proposed marriage on several occasions, assuring her that he was single. Eduardo even brought his parents to Baguio City to meet Tinas parents, and was assured by them that their son was still single.

Tina finally agreed to marry Eduardo sometime in the first week of March 1996. They were married on April 22, 1996 before Judge Antonio C. Reyes, the Presiding Judge of the RTC of Baguio

City, Branch 61.[5] It appeared in their marriage contract that Eduardo was single.

The couple was happy during the first three years of their married life. Through their joint efforts, they were able to build their home in Cypress Point, Irisan, Baguio City. However, starting 1999, Manuel started making himself scarce and went to their house only twice or thrice a year. Tina was jobless, and whenever she asked money from Eduardo, he would slap her. [6] Sometime in January 2001, Eduardo took all his clothes, left, and did not return. Worse, he stopped giving financial support.

Sometime in August 2001, Tina became curious and made inquiries from the National Statistics Office (NSO) in Manila where she learned that Eduardo had been previously married. She secured an NSO-certified copy of the marriage contract. [7] She was so embarrassed and humiliated when she learned that Eduardo was in fact already married when they exchanged their own vows.[8]

For his part, Eduardo testified that he met Tina sometime in 1995 in a bar where she worked as a Guest Relations Officer (GRO). He fell in love with her and married her. He informed Tina of his previous marriage to Rubylus Gaa, but she nevertheless agreed to marry him. Their marital relationship was in order until this one time when he noticed that she had a love-bite on her neck. He then abandoned her. Eduardo further testified that he declared he was single in his marriage contract with Tina because he believed in good faith that his first marriage was invalid. He did not know that he had to go to court to seek for the nullification of his first marriage before marrying Tina.

Eduardo further claimed that he was only forced to marry his first wife because she threatened to commit suicide unless he did so. Rubylus was charged with estafa in 1975 and thereafter imprisoned. He visited her in jail after three months and never saw her again. He insisted that he married Tina believing that his first marriage was no longer valid because he had not heard from Rubylus for more than 20 years.

After trial, the court rendered judgment on July 2, 2002 finding Eduardo guilty beyond reasonable doubt of bigamy. He was sentenced to an indeterminate penalty of from six (6) years and ten (10) months, as minimum, to ten (10) years, as maximum, and directed to indemnify the private complainant Tina Gandalera the amount of P200,000.00 by way of moral damages, plus costs of suit.[9]

The trial court ruled that the prosecution was able to prove beyond reasonable doubt all the elements of bigamy under Article 349 of the Revised Penal Code. It declared that Eduardos belief, that his first marriage had been dissolved because of his first wifes 20-year absence, even if true, did not exculpate him from liability for bigamy. Citing the ruling of this Court in People v. Bitdu,[10] the trial court further ruled that even if the private complainant had known that Eduardo had been previously married, the latter would still be criminally liable for bigamy.

Eduardo appealed the decision to the CA. He alleged that he was not criminally liable for bigamy because when he married the private complainant, he did so in good faith and without any malicious intent. He maintained that at the time that he married

the private complainant, he was of the honest belief that his first marriage no longer subsisted. He insisted that conformably to Article 3 of the Revised Penal Code, there must be malice for one to be criminally liable for a felony. He was not motivated by malice in marrying the private complainant because he did so only out of his overwhelming desire to have a fruitful marriage. He posited that the trial court should have taken into account Article 390 of the New Civil Code. To support his view, the appellant cited the rulings of this Court in United States v. Pealosa[11] and Manahan, Jr. v. Court of Appeals.[12]

The Office of the Solicitor General (OSG) averred that Eduardos defense of good faith and reliance on the Courts ruling in United States v. Enriquez[13] were misplaced; what is applicable is Article 41 of the Family Code, which amended Article 390 of the Civil Code. Citing the ruling of this Court in Republic v. Nolasco, [14] the OSG further posited that as provided in Article 41 of the Family Code, there is a need for a judicial declaration of presumptive death of the absent spouse to enable the present spouse to marry. Even assuming that the first marriage was void, the parties thereto should not be permitted to judge for themselves the nullity of the marriage;

the matter should be submitted to the proper court for resolution. Moreover, the OSG maintained, the private complainants knowledge of the first marriage would not afford any relief since bigamy is an offense against the State and not just against the private complainant.

However, the OSG agreed with the appellant that the penalty imposed by the trial court was erroneous and sought the affirmance of the decision appealed from with modification.

On June 18, 2004, the CA rendered judgment affirming the decision of the RTC with modification as to the penalty of the accused. It ruled that the prosecution was able to prove all the elements of bigamy. Contrary to the contention of the appellant, Article 41 of the Family Code should apply. Before Manuel could lawfully marry the private complainant, there should have been a judicial declaration of Gaas presumptive death as the absent spouse. The appellate court cited the rulings of this Court in Mercado v. Tan[15] and Domingo v. Court of Appeals[16] to support its ruling. The dispositive portion of the decision reads:
WHEREFORE, in the light of the foregoing, the Decision promulgated on July 31, 2002 is hereby MODIFIED to reflect, as it hereby reflects, that accused-appellant is sentenced to an indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to ten (10) years of prision mayor as maximum. Said Decision is AFFIRMED in all other respects.

SO ORDERED.[17]

Eduardo, now the petitioner, filed the instant petition for review on certiorari, insisting that:

I THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT RULED THAT PETITIONERS FIRST WIFE CANNOT BE LEGALLY PRESUMED DEAD UNDER ARTICLE 390 OF THE CIVIL CODE AS THERE WAS NO JUDICIAL DECLARATION OF PRESUMPTIVE DEATH AS PROVIDED FOR UNDER ARTICLE 41 OF THE FAMILY CODE.

II THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT AFFIRMED THE AWARD OF PHP200,000.00 AS MORAL DAMAGES AS IT HAS NO BASIS IN FACT AND IN LAW.[18]

The petitioner maintains that the prosecution failed to prove the second element of the felony, i.e., that the marriage has not been legally dissolved or, in case his/her spouse is absent, the absent spouse could not yet be presumed dead under the Civil Code. He avers that when he married Gandalera in 1996, Gaa had been absent for 21 years since 1975; under Article 390 of the Civil Code, she was presumed dead as a matter of law. He points out that, under the first paragraph of Article 390 of the Civil Code, one who has been absent for seven years, whether or not he/she is still alive, shall be presumed dead for all purposes except for succession, while the second paragraph refers to the rule on legal presumption of death with respect to succession.

The petitioner asserts that the presumptive death of the absent spouse arises by operation of law upon the satisfaction of two requirements: the

specified period and the present spouses reasonable belief that the absentee is dead. He insists that he was able to prove that he had not heard from his first wife since 1975 and that he had no knowledge of her whereabouts or whether she was still alive; hence, under Article 41 of the Family Code, the presumptive death of Gaa had arisen by operation of law, as the two requirements of Article 390 of the Civil Code are present. The petitioner concludes that he should thus be acquitted of the crime of bigamy.

The petitioner insists that except for the period of absences provided for in Article 390 of the Civil Code, the rule therein on legal presumptions remains valid and effective. Nowhere under Article 390 of the Civil Code does it require that there must first be a judicial declaration of death before the rule on presumptive death would apply. He further asserts that contrary to the rulings of the trial and appellate courts, the requirement of a judicial declaration of presumptive death under Article 41 of the Family Code is only a requirement for the validity of the subsequent or second marriage.

The petitioner, likewise, avers that the trial court and the CA erred in awarding moral damages in favor of the private complainant. The private complainant was a GRO before he married her, and even knew that he was already married. He genuinely loved and took care of her and gave her financial support. He also pointed out that she had an illicit relationship with a lover whom she brought to their house.

In its comment on the petition, the OSG maintains that the decision of the CA affirming the petitioners conviction is in accord with the law, jurisprudence and the evidence on record. To bolster its claim, the OSGcited the ruling of this Court in Republic v. Nolasco.[19]

The petition is denied for lack of merit.

Article 349 of the Revised Penal Code, which defines and penalizes bigamy, reads:
Art. 349. Bigamy. The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.

The provision was taken from Article 486 of the Spanish Penal Code, to wit:
El que contrajere Segundo o ulterior matrimonio sin hallarse legtimamente disuelto el anterior, ser castigado con la pena de prision mayor. xxx

The reason why bigamy is considered a felony is to preserve and ensure the juridical tie of marriage established by law.[20] The phrase or before the absent spouse had been declared presumptively dead by means of a judgment rendered in

the proper proceedings was incorporated in the Revised Penal Code because the drafters of the law were of the impression that in consonance with the civil law which provides for the presumption of death after an absence of a number of years, the judicial declaration of presumed death like annulment of marriage should be a justification for bigamy. [21]

For the accused to be held guilty of bigamy, the prosecution is burdened to prove the felony: (a) he/she has been legally married; and (b) he/she contracts a subsequent marriage without the former marriage having been lawfully dissolved. The felony is consummated on the celebration of the second marriage or subsequent marriage. [22] It is essential in the prosecution for bigamy that the alleged second marriage, having all the essential requirements, would be valid were it not for the subsistence of the first marriage. [23] Viada avers that a third element of the crime is that the second marriage must be entered into with fraudulent intent(intencion fraudulente) which is an essential element of a felony by dolo.[24] On the other hand, Cuello Calon is of the view that there are only two elements of bigamy: (1) the existence of a marriage that has not been lawfully dissolved; and (2) the celebration of a second marriage. It does not matter whether the first marriage is void or voidable because such marriages have juridical effects until lawfully dissolved by a court of competent jurisdiction.[25] As the Court ruled in Domingo v. Court of Appeals[26] and Mercado v. Tan,[27] under the Family Code of the Philippines, the judicial declaration of nullity of a previous marriage is a defense.

In his commentary on the Revised Penal Code, Albert is of the same view as Viada and declared that there are three (3) elements of bigamy: (1) an undissolved marriage; (2) a new marriage; and (3) fraudulent intention constituting the felony of the act.[28] He explained that:

This last element is not stated in Article 349, because it is undoubtedly incorporated in the principle antedating all codes, and, constituting one of the landmarks of our Penal Code, that, where there is no willfulness there is no crime. There is no willfulness if the subject believes that the former marriage has been dissolved; and this must be supported by very strong evidence, and if this be produced, the act shall be deemed not to constitute a crime. Thus, a person who contracts a second marriage in the reasonable and well-founded belief that his first wife is dead, because of the many years that have elapsed since he has had any news of her whereabouts, in spite of his endeavors to find her, cannot be deemed guilty of the crime of bigamy, because there is no fraudulent intent which is one of the essential elements of the crime.[29]

As gleaned from the Information in the RTC, the petitioner is charged with bigamy, a felony by dolo (deceit). Article 3, paragraph 2 of the Revised Penal Code provides that there is deceit when the act is performed with deliberate intent. Indeed, a felony cannot exist without intent. Since a felony by dolo is classified as an intentional felony, it is deemed voluntary. [30] Although the words with malice do not appear in Article 3 of the Revised Penal Code, such phrase is included in the word voluntary.[31]

Malice is a mental state or condition prompting the doing of an overt act without legal excuse or justification from which

another suffers injury.[32] When the act or omission defined by law as a felony is proved to have been done or committed by the accused, the law presumes it to have been intentional. [33] Indeed, it is a legal presumption of law that every man intends the natural or probable consequence of his voluntary act in the absence of proof to the contrary, and such presumption must prevail unless a reasonable doubt exists from a consideration of the whole evidence.[34]

For one to be criminally liable for a felony by dolo, there must be a confluence of both an evil act and an evil intent. Actus non facit reum, nisi mens sit rea.[35]

In the present case, the prosecution proved that the petitioner was married to Gaa in 1975, and such marriage was not judicially declared a nullity; hence, the marriage is presumed to subsist.[36] The prosecution also proved that the petitioner married the private complainant in 1996, long after the effectivity of the Family Code.

The petitioner is presumed to have acted with malice or evil intent when he married the private complainant. As a general rule, mistake of fact or good faith of the accused is a valid defense in a prosecution for a felony by dolo; such defense negates malice or criminal intent. However, ignorance of the law is not an excuse because everyone is presumed to know the law. Ignorantia legis neminem excusat.

It was the burden of the petitioner to prove his defense that when he married the private complainant in 1996, he was of the well-grounded belief

that his first wife was already dead, as he had not heard from her for more than 20 years since 1975. He should have adduced in evidence a decision of a competent court declaring the presumptive death of his first wife as required by Article 349 of the Revised Penal Code, in relation to Article 41 of the Family Code. Such judicial declaration also constitutes proof that the petitioner acted in good faith, and would negate criminal intent on his part when he married the private complainant and, as a consequence, he could not be held guilty of bigamy in such case. The petitioner, however, failed to discharge his burden.

The phrase or before the absent spouse has been declared presumptively dead by means of a judgment rendered on the proceedings in Article 349 of the Revised Penal Code was not an aggroupment of empty or useless words. The requirement for a judgment of the presumptive death of the absent spouse is for the benefit of the spouse present, as protection from the pains and the consequences of a second marriage, precisely because he/she could be charged and convicted of bigamy if the defense of good faith based on mere testimony is found incredible.

The requirement of judicial declaration is also for the benefit of the State. Under Article II, Section 12 of the Constitution, the State shall protect and strengthen the family as a basic autonomous social institution. Marriage is a social institution of the highest importance. Public policy, good morals and the interest of society require that the marital relation should be surrounded with every safeguard and its severance only in the manner prescribed and the causes specified by law. [37] The laws regulating civil marriages are necessary to serve the interest,

safety, good order, comfort or general welfare of the community and the parties can waive nothing essential to the validity of the proceedings. A civil marriage anchors an ordered society by encouraging stable relationships over transient ones; it enhances the welfare of the community.

In a real sense, there are three parties to every civil marriage; two willing spouses and an approving State. On marriage, the parties assume new relations to each other and the State touching nearly on every aspect of life and death. The consequences of an invalid marriage to the parties, to innocent parties and to society, are so serious that the law may well take means calculated to ensure the procurement of the most positive evidence of death of the first spouse or of the presumptive death of the absent spouse[38] after the lapse of the period provided for under the law. One such means is the requirement of the declaration by a competent court of the presumptive death of an absent spouse as proof that the present spouse contracts a subsequent marriage on a well-grounded belief of the death of the first spouse. Indeed, men readily believe what they wish to be true, is a maxim of the old jurists. To sustain a second marriage and to vacate a first because one of the parties believed the other to be dead would make the existence of the marital relation determinable, not by certain extrinsic facts, easily capable of forensic ascertainment and proof, but by the subjective condition of individuals. [39] Only with such proof can marriage be treated as so dissolved as to permit second marriages.[40] Thus, Article 349 of the Revised Penal Code has made the dissolution of marriage dependent not only upon the personal belief of parties, but upon certain objective facts easily capable of accurate judicial cognizance, [41] namely, a judgment of the presumptive death of the absent spouse.

The petitioners sole reliance on Article 390 of the Civil Code as basis for his acquittal for bigamy is misplaced.

Articles 390 and 391 of the Civil Code provide

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, except for those of succession.

The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened.

Art. 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs:

(1)

A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; A person in the armed forces who has taken part in war, and has been missing for four years; A person who has been in danger of death under other circumstances and his existence has not been known for four years.

(2) (3)

The presumption of death of the spouse who had been absent for seven years, it being unknown whether or not the absentee still lives, is created by law and arises without any

necessity of judicial declaration. [42] However, Article 41 of the Family Code, which amended the foregoing rules on presumptive death, reads:

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 the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient .

For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Court for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.[43]

With the effectivity of the Family Code, [44] the period of seven years under the first paragraph of Article 390 of the Civil Code was reduced to four consecutive years. Thus, before the spouse present may contract a subsequent marriage, he or she must institute summary proceedings for the declaration of the presumptive death of the absentee spouse, [45] without prejudice to the effect of the reappearance of the absentee spouse. As explained by this Court in Armas v. Calisterio:[46]

In contrast, under the 1988 Family Code, in order that a subsequent bigamous marriage may exceptionally be considered valid, the following conditions must concur, viz.: (a) The prior spouse of the contracting party must have been absent for four consecutive years, or two years where there is danger of death under the circumstances stated in Article 391 of the Civil Code at the time of disappearance; (b)

the spouse present has a well-founded belief that the absent spouse is already dead; and (c) there is, unlike the old rule, a judicial declaration of presumptive death of the absentee for which purpose the spouse present can institute a summary proceeding in court to ask for that declaration. The last condition is consistent and in consonance with the requirement of judicial intervention in subsequent marriages as so provided in Article 41, in relation to Article 40, of the Family Code.

The Court rejects petitioners contention that the requirement of instituting a petition for declaration of presumptive death under Article 41 of the Family Code is designed merely to enable the spouse present to contract a valid second marriage and not for the acquittal of one charged with bigamy. Such provision was designed to harmonize civil law and Article 349 of the Revised Penal Code, and put to rest the confusion spawned by the rulings of this Court and comments of eminent authorities on Criminal Law.

As early as March 6, 1937, this Court ruled in Jones v. Hortiguela[47] that, for purposes of the marriage law, it is not necessary to have the former spouse judicially declared an absentee before the spouse present may contract a subsequent marriage. It held that the declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose the taking of the necessary precautions for the administration of the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the former spouse had been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage. [48] In In Re

Szatraw,[49] the Court declared that a judicial declaration that a person is presumptively dead, because he or she had been unheard from in seven years, being a presumption juris tantum only, subject to contrary proof, cannot reach the stage of finality or become final; and that proof of actual death of the person presumed dead being unheard from in seven years, would have to be made in another proceeding to have such particular fact finally determined. The Court ruled that if a judicial decree declaring a person presumptively dead because he or she had not been heard from in seven years cannot become final and executory even after the lapse of the reglementary period within which an appeal may be taken, for such presumption is still disputable and remains subject to contrary proof, then a petition for such a declaration is useless, unnecessary, superfluous and of no benefit to the petitioner. The Court stated that it should not waste its valuable time and be made to perform a superfluous and meaningless act.[50] The Court also took note that a petition for a declaration of the presumptive death of an absent spouse may even be made in collusion with the other spouse.

In Lukban v. Republic of the Philippines ,[51] the Court declared that the words proper proceedings in Article 349 of the Revised Penal Code can only refer to those authorized by law such as Articles 390 and 391 of the Civil Code which refer to the administration or settlement of the estate of a deceased person. In Gue v. Republic of the Philippines,[52] the Court rejected the contention of the petitioner therein that, under Article 390 of the Civil Code, the courts are authorized to declare the presumptive death of a person after an absence of seven years. The Court reiterated its rulings in Szatraw, Lukban and Jones.

Former Chief Justice Ramon C. Aquino was of the view that the provision of Article 349 or before the absent spouse has been declared presumptively dead by means of a judgment reached in the proper proceedings is erroneous and should be considered as not written. He opined that such provision presupposes that, if the prior marriage has not been legally dissolved and the absent first spouse has not been declared presumptively dead in a proper court proceedings, the subsequent marriage is bigamous. He maintains that the supposition is not true. [53] A second marriage is bigamous only when the circumstances in paragraphs 1 and 2 of Article 83 of the Civil Code are not present. [54] Former Senator Ambrosio Padilla was, likewise, of the view that Article 349 seems to require judicial decree of dissolution or judicial declaration of absence but even with such decree, a second marriage in good faith will not constitute bigamy. He posits that a second marriage, if not illegal, even if it be annullable, should not give rise to bigamy. [55] Former Justice Luis B. Reyes, on the other hand, was of the view that in the case of an absent spouse who could not yet be presumed dead according to the Civil Code, the spouse present cannot be charged and convicted of bigamy in case he/she contracts a second marriage.[56]

The Committee tasked to prepare the Family Code proposed the amendments of Articles 390 and 391 of the Civil Code to conform to Article 349 of the Revised Penal Code, in that, in a case where a spouse is absent for the requisite period, the present spouse may contract a subsequent marriage only after securing a judgment declaring the presumptive death of the absent spouse to avoid being charged and convicted of bigamy; the present spouse will have to adduce evidence that he had a well-founded belief that the absent spouse was already dead. [57]

Such judgment is proof of the good faith of the present spouse who contracted a subsequent marriage; thus, even if the present spouse is later charged with bigamy if the absentee spouse reappears, he cannot be convicted of the crime. As explained by former Justice Alicia Sempio-Diy:

Such rulings, however, conflict with Art. 349 of the Revised Penal Code providing that the present spouse must first ask for a declaration of presumptive death of the absent spouse in order not to be guilty of bigamy in case he or she marries again.

The above Article of the Family Code now clearly provides that for the purpose of the present spouse contracting a second marriage, he or she must file a summary proceeding as provided in the Code for the declaration of the presumptive death of the absentee, without prejudice to the latters reappearance. This provision is intended to protect the present spouse from a criminal prosecution for bigamy under Art. 349 of the Revised Penal Code because with the judicial declaration that the missing spouses presumptively dead, the good faith of the present spouse in contracting a second marriage is already established.[58]

Of the same view is former Dean Ernesto L. Pineda (now Undersecretary of Justice) who wrote that things are now clarified. He says judicial declaration of presumptive death is now authorized for purposes of

remarriage. The present spouse must institute a summary proceeding for declaration of presumptive death of the absentee, where the ordinary rules of procedure in trial will not be followed. Affidavits will suffice, with possible clarificatory examinations of affiants if the Judge finds it necessary for a full grasp of the facts. The judgment declaring an absentee as presumptively dead is without prejudice to the effect of reappearance of the said absentee.

Dean Pineda further states that before, the weight of authority is that the clause before the absent spouse has been declared presumptively dead x x x should be disregarded because of Article 83, paragraph 3 of the Civil Code. With the new law, there is a need to institute a summary proceeding for the declaration of the presumptive death of the absentee, otherwise, there is bigamy.[59]

According to Retired Supreme Court Justice Florenz D. Regalado, an eminent authority on Criminal Law, in some cases where an absentee spouse is believed to be dead, there must be a judicial declaration of presumptive death, which could then be made only in the proceedings for the settlement of his estate. [60] Before such declaration, it was held that the remarriage of the other spouse is bigamous even if done in good faith. [61] Justice Regalado opined that there were contrary views because of the ruling in Jones and the provisions of Article 83(2) of the Civil Code, which, however, appears to have been set to rest by Article 41 of the Family Code, which requires a summary hearing for the declaration of presumptive death of the absent spouse before the other spouse can remarry.

Under Article 238 of the Family Code, a petition for a declaration of the presumptive death of an absent spouse under Article 41 of the Family Code may be filed under Articles 239 to 247 of the same Code.[62]

On the second issue, the petitioner, likewise, faults the trial court and the CA for awarding moral damages in favor of the private complainant. The petitioner maintains that moral damages may be awarded only in any of the cases provided in Article 2219 of the Civil Code, and bigamy is not one of them. The petitioner asserts that the appellate court failed to apply its ruling in People v. Bondoc,[63] where an award of moral damages for bigamy was disallowed. In any case, the petitioner maintains, the private complainant failed to adduce evidence to prove moral damages.

The appellate court awarded moral damages to the private complainant on its finding that she adduced evidence to prove the same. The appellate court ruled that while bigamy is not included in those cases enumerated in Article 2219 of the Civil Code, it is not proscribed from awarding moral damages against the petitioner. The appellate court ruled that it is not bound by the following ruling in People v. Bondoc:

... Pero si en dichos asuntos se adjudicaron daos, ello se debi indedublamente porque el articulo 2219 del Cdigo Civil de Filipinas autoriza la adjudicacin de daos morales en los delitos de estupro, rapto, violacin, adulterio o concubinato, y otros actos lascivos, sin incluir en esta enumeracin el delito de bigamia. No existe, por

consiguiente, base legal para adjudicar aqu los daos de P5,000.00 arriba mencionados.[64]

The OSG posits that the findings and ruling of the CA are based on the evidence and the law. The OSG, likewise, avers that the CA was not bound by its ruling in People v. Rodeo.

The Court rules against the petitioner.

Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendants wrongful act or omission.[65] An award for moral damages requires the confluence of the following conditions: first, there must be an injury, whether physical, mental or psychological, clearly sustained by the claimant; second, there must be culpable act or omission factually established; third, the wrongful act or omission of the defendant is the proximate cause of the injury sustained by the claimant; and fourth, the award of damages is predicated on any of the cases stated in Article 2219 or Article 2220 of the Civil Code.[66]

Moral damages may be awarded in favor of the offended party only in criminal cases enumerated in Article 2219, paragraphs 1, 3, 4, 5 and 7 of the Civil Code and analogous cases, viz.:

Art. 2219. Moral damages may be recovered in the following and analogous cases.

(1) A criminal offense resulting in physical injuries; (2) Quasi-delicts causing physical injuries; (3) Seduction, abduction, rape, or other lascivious acts; (4) Adultery or concubinage; (5) Illegal or arbitrary detention or arrest; (6) Illegal search; (7) Libel, slander or any other form of defamation; (8) Malicious prosecution; (9) Acts mentioned in article 309; (10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34 and 35.

The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of this article, may also recover moral damages.

The spouse, descendants, ascendants, and brothers and sisters may bring the action mentioned in No. 9 of this article in the order named.

Thus, the law does not intend that moral damages should be awarded in all cases where the aggrieved party has suffered mental anguish, fright, moral anxieties, besmirched reputation, wounded feelings, moral shock, social humiliation and similar injury arising out of an act or omission of another, otherwise,

there would not have been any reason for the inclusion of specific acts in Article 2219[67] and analogous cases (which refer to those cases bearing analogy or resemblance, corresponds to some others or resembling, in other respects, as in form, proportion, relation, etc.)[68]

Indeed, bigamy is not one of those specifically mentioned in Article 2219 of the Civil Code in which the offender may be ordered to pay moral damages to the private complainant/offended party. Nevertheless, the petitioner is liable to the private complainant for moral damages under Article 2219 in relation to Articles 19, 20 and 21 of the Civil Code.

According to Article 19, every person must, in the exercise of his rights and in the performance of his act with justice, give everyone his due, and observe honesty and good faith. This provision contains what is commonly referred to as the principle of abuse of rights, and sets certain standards which must be observed not only in the exercise of ones rights but also in the performance of ones duties. The standards are the following: act with justice; give everyone his due; and observe honesty and good faith. The elements for abuse of rights are: (a) there is a legal right or duty; (b) exercised in bad faith; and (c) for the sole intent of prejudicing or injuring another. [69]

Article 20 speaks of the general sanctions of all other provisions of law which do not especially provide for its own sanction. When a right is exercised in a manner which does not conform to the standards set forth in the said provision and results in damage to another, a legal wrong is thereby committed

for which the wrongdoer must be responsible. [70] If the provision does not provide a remedy for its violation, an action for damages under either Article 20 or Article 21 of the Civil Code would be proper. Article 20 provides that every person who, contrary to law, willfully or negligently causes damage to another shall indemnify the latter for the same. On the other hand, Article 21 provides that any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for damages. The latter provision

is adopted to remedy the countless gaps in the statutes which leave so many victims of moral wrongs helpless, even though they have actually suffered material and moral injury should vouchsafe adequate legal remedy for that untold number of moral wrongs which it is impossible for human foresight to prove for specifically in the statutes. Whether or not the principle of abuse of rights has been violated resulting in damages under Article 20 or Article 21 of the Civil Code or other applicable provisions of law depends upon the circumstances of each case.[71]

In the present case, the petitioner courted the private complainant and proposed to marry her. He assured her that he was single. He even brought his parents to the house of the private complainant where he and his parents made the same assurance that he was single. Thus, the private complainant agreed to marry the petitioner, who even stated in the certificate of marriage that he was single. She lived with the petitioner and dutifully performed her duties as his wife, believing all the while that he was her lawful husband. For two years or so until the petitioner heartlessly abandoned her, the private complainant had no inkling that he was already married to another before they were married.

Thus, the private complainant was an innocent victim of the petitioners chicanery and heartless deception, the fraud consisting not of a single act alone, but a continuous series of acts. Day by day, he maintained the appearance of being a lawful husband to the private complainant, who

changed her status from a single woman to a married woman, lost the consortium, attributes and support of a single man she could have married lawfully and endured mental pain and humiliation, being bound to a man who it turned out was not her lawful husband.[72]

The Court rules that the petitioners collective acts of fraud and deceit before, during and after his marriage with the private complainant were willful, deliberate and with malice and caused injury to the latter. That she did not sustain any physical injuries is not a bar to an award for moral damages. Indeed, in Morris v. Macnab,[73] the New Jersey Supreme Court ruled:

xxx The defendant cites authorities which indicate that, absent physical injuries, damages for shame, humiliation, and mental anguish are not recoverable where the actor is simply negligent. See Prosser, supra, at p. 180; 2 Harper & James, Torts, 1031 (1956). But the authorities all recognize that where the wrong is willful rather than negligent, recovery may be had for the ordinary, natural, and proximate consequences though they consist of shame, humiliation, and mental anguish. See Spiegel v. Evergreen Cemetery Co., 117 NJL 90, 94, 186 A 585 (Sup. Ct. 1936); Kuzma v. Millinery Workers, etc., Local 24, 27 N.J. Super, 579, 591, 99 A.2d 833 (App. Div. 1953); Prosser, supra, at p. 38. Here the defendants conduct was not merely negligent, but was willfully and maliciously wrongful. It was bound to result in shame, humiliation, and mental anguish for the plaintiff, and when such result did ensue the plaintiff became entitled not only to compensatory but also to punitive damages. See Spiegel v. Evergreen Cemetery Co., supra; Kuzma v Millinery Workers, etc., Local 24, supra. CF. Note, Exemplary Damages in the Law of Torts, 70 Harv. L. Rev. 517 (1957). The plaintiff testified that because of the defendants bigamous marriage to her and the attendant publicity she not only was embarrassed and ashamed to go out but couldnt sleep but couldnt eat, had terrific headaches and lost quite a lot of weight. No just basis appears for judicial interference with the jurys reasonable allowance of $1,000 punitive damages on the first count.

See Cabakov v. Thatcher, 37 N.J. Super 249, 117 A.2d 298 (App. Div. [74] 1955).

The Court thus declares that the petitioners acts are against public policy as they undermine and subvert the family as a social institution, good morals and the interest and general welfare of society.

Because the private complainant was an innocent victim of the petitioners perfidy, she is not barred from claiming moral damages. Besides, even considerations of public policy would not prevent her from recovery. As held in Jekshewitz v. Groswald:[75]

Where a person is induced by the fraudulent representation of another to do an act which, in consequence of such misrepresentation, he believes to be neither illegal nor immoral, but which is in fact a criminal offense, he has a right of action against the person so inducing him for damages sustained by him in consequence of his having done such act. Burrows v. Rhodes, [1899] 1 Q.B. 816. In Cooper v. Cooper, 147 Mass. 370, 17 N.E. 892, 9 Am. St. Rep. 721, the court said that a false representation by the defendant that he was divorced from his former wife, whereby the plaintiff was induced to marry him, gave her a remedy in tort for deceit. It seems to have been assumed that the fact that she had unintentionally violated the law or innocently committed a crime by cohabiting with him would be no bar to the action, but rather that it might be a ground for enhancing her damages. The injury to the plaintiff was said to be in her being led by the promise to give the fellowship and assistance of a wife to one who was not her husband and to assume and act in a relation and condition that proved to be false and ignominious. Damages for such an injury were held to be recoverable in Sherman v. Rawson, 102 Mass. 395 and Kelley v. Riley, 106 Mass. 339, 343, 8 Am. Rep. 336.

Furthermore, in the case at bar the plaintiff does not base her cause of action upon any transgression of the law by herself but upon

the defendants misrepresentation. The criminal relations which followed, innocently on her part, were but one of the incidental results of the defendants fraud for which damages may be assessed.

[7] Actions for deceit for fraudulently inducing a woman to enter into the marriage relation have been maintained in other jurisdictions. Sears v. Wegner, 150 Mich. 388, 114 N.W. 224, 17 L.R. A. (N.S.) 819; Larson v. McMillan, 99 Wash. 626, 170 P. 324; Blossom v. Barrett, 37 N.Y. 434, 97 Am. Dec. 747; Morril v. Palmer, 68 Vt. 1, 33 A. 829, 33 L.R.A. 411. Considerations of public policy would not prevent recovery where the circumstances are such that the plaintiff was conscious of no moral turpitude, that her illegal action was induced solely by the defendants misrepresentation, and that she does not base her cause of action upon any transgression of the law by herself. Such considerations

distinguish this case from cases in which the court has refused to lend its aid to the enforcement of a contract illegal on its face or to one who has consciously and voluntarily become a party to an illegal act upon which the cause of action is founded. Szadiwicz v. Cantor, 257 Mass. 518, 520, 154 N.E. 251, 49 A. L. R. 958. [76]

Considering the attendant circumstances of the case, the Court finds the award of P200,000.00 for moral damages to be just and reasonable.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed decision of the Court of Appeals is AFFIRMED. Costs against the petitioner.

SO ORDERED.

ROMEO J. CALLEJO, SR. Associate Justice

SECOND DIVISION REPUBLIC OF THE PHILIPPINES, Petitioner, G.R. No. 159614 Present:

- versus THE HONORABLE COURT OF APPEALS (TENTH DIVISION) and ALAN B. ALEGRO, Respondents.

PUNO, J., Chairman, AUSTRIA-MARTINEZ, CALLEJO, SR., TINGA, and CHICO-NAZARIO, JJ. Promulgated:

December 9, 2005 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION CALLEJO, SR., J.:

On March 29, 2001, Alan B. Alegro filed a petition in the Regional Trial Court (RTC) of Catbalogan, Samar, Branch 27, for the declaration of presumptive death of his wife, Rosalia (Lea) A. Julaton. In an Order[1] dated April 16, 2001, the court set the petition for hearing on May 30, 2001 at 8:30 a.m. and directed that a copy of the said order be published once a week for three (3) consecutive weeks in theSamar Reporter, a newspaper of general circulation in the Province of Samar, and

that a copy be posted in the courts bulletin board for at least three weeks before the next scheduled hearing. The court also directed that copies of the order be served on the Solicitor General, the Provincial Prosecutor of Samar, and Alan, through counsel, and that copies be sent to Lea by registered mail. Alan complied with all the foregoing jurisdictional requirements.[2] On May 28, 2001, the Republic of the Philippines, through the Office of the Solicitor General (OSG), filed a Motion to Dismiss [3] the petition, which was, however, denied by the court for failure to comply with Rule 15 of the Rules of Court.[4] At the hearing, Alan adduced evidence that he and Lea were married on January 20, 1995 in Catbalogan, Samar.[5] He testified that, on February 6, 1995, Lea arrived home late in the evening and he berated her for being always out of their house. He told her that if she enjoyed the life of a single person, it would be better for her to go back to her parents. [6] Lea did not reply. Alan narrated that, when he reported for work the following day, Lea was still in the house, but when he arrived home later in the day, Lea was nowhere to be found. [7] Alan thought that Lea merely went to her parents house in Bliss, Sto. Nio, Catbalogan, Samar. [8] However, Lea did not return to their house anymore. Alan further testified that, on February 14, 1995, after his work, he went to the house of Leas parents to see if she was there, but he was told that she was not there. He also went to the house of Leas friend, Janeth Bautista, at Barangay Canlapwas, but he was informed by Janettes brother-in-law, Nelson Abaenza, that Janeth had left for Manila.[9] When Alan went back to the house of his parents-in-law, he learned from his father-in-law that Lea had been to their house but that she left without notice.[10] Alan sought the help of Barangay Captain Juan Magat, who promised to help him locate his wife. He also inquired from his friends of Leas whereabouts but to no avail.[11] Sometime in June 1995, he decided to go to Manila to look for Lea, but his mother asked him to leave after the town fiesta of Catbalogan, hoping that Lea may

come home for the fiesta. Alan agreed.[12] However, Lea did not show up. Alan then left for Manila on August 27, 1995. He went to a house in Navotas where Janeth, Leas friend, was staying. When asked where Lea was, Janeth told him that she had not seen her.[13] He failed to find out Leas whereabouts despite his repeated talks with Janeth. Alan decided to work as a part-time taxi driver. On his free time, he would look for Lea in the malls but still to no avail. He returned to Catbalogan in 1997 and again looked for his wife but failed.[14] On June 20, 2001, Alan reported Leas disappearance to the local police station.[15] The police authorities issued an Alarm Notice on July 4, 2001. [16] Alan also reported Leas disappearance to the National Bureau of Investigation (NBI) on July 9, 2001.[17] Barangay Captain Juan Magat corroborated the testimony of Alan. He declared that on February 14, 1995, at 2:00 p.m., Alan inquired from him if Lea passed by his house and he told Alan that she did not. Alan also told him that Lea had disappeared. He had not seen Lea in the barangay ever since.[18] Leas father, who was his compadre and the owner of Radio DYMS, told him that he did not know where Lea was.[19] After Alan rested his case, neither the Office of the Provincial Prosecutor nor the Solicitor General adduced evidence in opposition to the petition. On January 8, 2002, the court rendered judgment granting the petition. The fallo of the decision reads:
WHEREFORE, and in view of all the foregoing, petitioners absent spouse ROSALIA JULATON is hereby declared PRESUMPTIVELY DEAD for the purpose of the petitioners subsequent marriage under Article 41 of the Family Code of the Philippines, without prejudice to the effect of reappearance of the said absent spouse. SO ORDERED.[20]

The OSG appealed the decision to the Court of Appeals (CA) which rendered judgment on August 4, 2003, affirming the decision of the RTC. [21] The CA cited the ruling of this Court in Republic v. Nolasco.[22] The OSG filed a petition for review on certiorari of the CAs decision alleging that respondent Alan B. Alegro failed to prove that he had a well-founded belief that Lea was already dead.[23] It averred that the respondent failed to exercise reasonable and diligent efforts to locate his wife. The respondent even admitted that Leas father told him on February 14, 1995 that Lea had been to their house but left without notice. The OSG pointed out that the respondent reported his wifes disappearance to the local police and also to the NBI only after the petitioner filed a motion to dismiss the petition. The petitioner avers that, as gleaned from the evidence, the respondent did not really want to find and locate Lea. Finally, the petitioner averred:
In view of the summary nature of proceedings under Article 41 of the Family Code for the declaration of presumptive death of ones spouse, the degree of due diligence set by this Honorable Court in the above-mentioned cases in locating the whereabouts of a missing spouse must be strictly complied with. There have been times when Article 41 of the Family Code had been resorted to by parties wishing to remarry knowing fully well that their alleged missing spouses are alive and well. It is even possible that those who cannot have their marriages x x x declared null and void under 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. It is the policy of the State to protect and strengthen the family as a basic social institution. Marriage is the foundation of the family. Since marriage is an inviolable social institution that the 1987 Constitution seeks to protect from dissolution at the whim of the parties. For respondents failure to prove that he had a well-founded belief that his wife is already

dead and that he exerted the required amount of diligence in searching for his missing wife, the petition for declaration of presumptive death should have been denied by the trial court and the Honorable Court of Appeals.[24]

The petition is meritorious. Article 41 of the Family Code of the Philippines reads:
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 the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.[25]

The spouse present is, thus, burdened to prove that his spouse has been absent and that he has a well-founded belief that the absent spouse is already dead before the present spouse may contract a subsequent marriage. The law does not define what is meant by a well-grounded belief. Cuello Callon writes that es menester que su creencia sea firme se funde en motivos racionales.[26] Belief is a state of the mind or condition prompting the doing of an overt act. It may be proved by direct evidence or circumstantial evidence which may tend, even in a slight degree, to elucidate the inquiry or assist to a determination probably founded in truth. Any fact or circumstance relating to the character, habits, conditions, attachments, prosperity and objects of life which usually control the conduct of men, and are the motives of their actions, was, so far as it tends to explain or characterize their disappearance or throw light on their intentions, [27] competence evidence on the ultimate question of his death. The belief of the present spouse must be the result of proper and honest to goodness inquiries and efforts to ascertain the whereabouts of the absent spouse and whether the absent spouse is still alive or is already dead. Whether or not the spouse present acted on a well-founded belief of death of the absent spouse

depends upon the inquiries to be drawn from a great many circumstances occurring before and after the disappearance of the absent spouse and the nature and extent of the inquiries made by present spouse.[28] Although testimonial evidence may suffice to prove the well-founded belief of the present spouse that the absent spouse is already dead, in Republic v. Nolasco,[29] the Court warned against collusion between the parties when they find it impossible to dissolve the marital bonds through existing legal means. It is also the maxim that men readily believe what they wish to be true. In this case, the respondent failed to present a witness other than Barangay Captain Juan Magat. The respondent even failed to present Janeth Bautista or Nelson Abaenza or any other person from whom he allegedly made inquiries about Lea to corroborate his testimony. On the other hand, the respondent admitted that when he returned to the house of his parents-in-law on February 14, 1995, his father-in-law told him that Lea had just been there but that she left without notice. The respondent declared that Lea left their abode on February 7, 1995 after he chided her for coming home late and for being always out of their house, and told her that it would be better for her to go home to her parents if she enjoyed the life of a single person. Lea, thus, left their conjugal abode and never returned. Neither did she communicate with the respondent after leaving the conjugal abode because of her resentment to the chastisement she received from him barely a month after their marriage. What is so worrisome is that, the respondent failed to make inquiries from his parents-in-law regarding Leas whereabouts before filing his petition in the RTC. It could have enhanced the credibility of the respondent had he made inquiries from his parents-in-law about Leas whereabouts considering that Leas father was the owner of Radio DYMS. The respondent did report and seek the help of the local police authorities and the NBI to locate Lea, but it was only an afterthought. He did so only after the OSG filed its notice to dismiss his petition in the RTC.

In sum, the Court finds and so holds that the respondent failed to prove that he had a well-founded belief, before he filed his petition in the RTC, that his spouse Rosalia (Lea) Julaton was already dead. IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 73749 is REVERSED and SET ASIDE. Consequently, the Regional Trial Court of Catbalogan, Samar, Branch 27, is ORDERED to DISMISS the respondents petition. SO ORDERED. ROMEO J. CALLEJO, SR. Associate Justice

THIRD DIVISION G.R. No. 165545 March 24, 2006

SOCIAL SECURITY SYSTEM, Petitioner, vs. TERESITA JARQUE VDA. DE BAILON, Respondent. DECISION CARPIO MORALES,J.: The Court of Appeals Decision1 dated June 23, 20042 and Resolution dated September 28, 20043 reversing the Resolution dated April 2, 20034 and Order dated June 4, 20035 of the Social Security Commission (SSC) in SSC Case No. 4-15149-01 are challenged in the present petition for review on certiorari. On April 25, 1955, Clemente G. Bailon (Bailon) and Alice P. Diaz (Alice) contracted marriage in Barcelona, Sorsogon.6 More than 15 years later or on October 9, 1970, Bailon filed before the then Court of First Instance (CFI) of Sorsogon a petition7 to declare Alice presumptively dead. By Order of December 10, 1970,8 the CFI granted the petition, disposing as follows:

WHEREFORE, there being no opposition filed against the petition notwithstanding the publication of the Notice of Hearing in a newspaper of general circulation in the country, Alice Diaz is hereby declared to [sic] all legal intents and purposes, except for those of succession, presumptively dead. SO ORDERED.9 (Underscoring supplied) Close to 13 years after his wife Alice was declared presumptively dead or on August 8, 1983, Bailon contracted marriage with Teresita Jarque (respondent) in Casiguran, Sorsogon. 10 On January 30, 1998, Bailon, who was a member of the Social Security System (SSS) since 1960 and a retiree pensioner thereof effective July 1994, died. 11 Respondent thereupon filed a claim for funeral benefits, and was granted P12,00012 by the SSS. Respondent filed on March 11, 1998 an additional claim for death benefits 13 which was also granted by the SSS on April 6, 1998. 14 Cecilia Bailon-Yap (Cecilia), who claimed to be a daughter of Bailon and one Elisa Jayona (Elisa) contested before the SSS the release to respondent of the death and funeral benefits. She claimed that Bailon contracted three marriages in his lifetime, the first with Alice, the second with her mother Elisa, and the third with respondent, all of whom are still alive; she, together with her siblings, paid for Bailons medical and funeral expenses; and all the documents submitted by respondent to the SSS in support of her claims are spurious. In support of her claim, Cecilia and her sister Norma Bailon Chavez (Norma) submitted an Affidavit dated February 13, 199915 averring that they are two of nine children of Bailon and Elisa who cohabited as husband and wife as early as 1958; and they were reserving their right to file the necessary court action to contest the marriage between Bailon and respondent as they personally know that Alice is "still very much alive." 16 In the meantime, on April 5, 1999, a certain Hermes P. Diaz, claiming to be the brother and guardian of "Aliz P. Diaz," filed before the SSS a claim for death benefits accruing from Bailons death, 17 he further attesting in a sworn statement18 that it was Norma who defrayed Bailons funeral expenses. Elisa and seven of her children19 subsequently filed claims for death benefits as Bailons beneficiaries before the SSS.20 Atty. Marites C. de la Torre of the Legal Unit of the SSS Bicol Cluster, Naga City recommended the cancellation of payment of death pension benefits to respondent and the issuance of an order for the refund of the amount paid to her from February 1998 to May 1999 representing such benefits; the denial of the claim of Alice on the ground that she was not dependent upon Bailon for support during his lifetime; and the payment of the balance of the five-year guaranteed pension to Bailons beneficiaries according to the order of preference provided under the law, after the amount erroneously paid to respondent has been collected. The pertinent portions of the Memorandum read: 1. Aliz [sic] Diaz never disappeared. The court must have been misled by misrepresentation in declaring the first wife, Aliz [sic] Diaz, as presumptively dead. xxxx

x x x the Order of the court in the "Petition to Declare Alice Diaz Presumptively Dead," did not become final. The presence of Aliz [sic] Diaz, is contrary proof that rendered it invalid. xxxx 3. It was the deceased member who abandoned his wife, Aliz [sic] Diaz. He, being in bad faith, and is the deserting spouse, his remarriage is void, being bigamous. xxxx In this case, it is the deceased member who was the deserting spouse and who remarried, thus his marriage to Teresita Jarque, for the second time was void as it was bigamous. To require affidavit of reappearance to terminate the second marriage is not necessary as there is no disappearance of Aliz [sic] Diaz, the first wife, and a voidable marriage [sic], to speak of. 21 (Underscoring supplied) In the meantime, the SSS Sorsogon Branch, by letter of August 16, 2000, 22 advised respondent that as Cecilia and Norma were the ones who defrayed Bailons funeral expenses, she should return the P12,000 paid to her. In a separate letter dated September 7, 1999, 23 the SSS advised respondent of the cancellation of her monthly pension for death benefits in view of the opinion rendered by its legal department that her marriage with Bailon was void as it was contracted while the latters marriage with Alice was still subsisting; and the December 10, 1970 CFI Order declaring Alice presumptively dead did not become final, her "presence" being "contrary proof" against the validity of the order. It thus requested respondent to return the amount of P24,000 representing the total amount of monthly pension she had received from the SSS from February 1998 to May 1999. Respondent protested the cancellation of her monthly pension for death benefits by letter to the SSS dated October 12, 1999.24 In a subsequent letter dated November 27, 199925 to the SSC, she reiterated her request for the release of her monthly pension, asserting that her marriage with Bailon was not declared before any court of justice as bigamous or unlawful, hence, it remained valid and subsisting for all legal intents and purposes as in fact Bailon designated her as his beneficiary. The SSS, however, by letter to respondent dated January 21, 2000, 26 maintained the denial of her claim for and the discontinuance of payment of monthly pension. It advised her, however, that she was not deprived of her right to file a petition with the SSC. Respondent thus filed a petition27 against the SSS before the SSC for the restoration to her of her entitlement to monthly pension. In the meantime, respondent informed the SSS that she was returning, under protest, the amount of P12,000 representing the funeral benefits she received, she alleging that Norma and her siblings "forcibly and coercively prevented her from spending any amount during Bailons wake." 28 After the SSS filed its Answer29 to respondents petition, and the parties filed their respective Position Papers, one Alicia P. Diaz filed an Affidavit 30 dated August 14, 2002 with the SSS Naga Branch attesting that she is the widow of Bailon; she had only recently come to know of the petition filed by Bailon to declare her presumptively dead; it is not true that she disappeared as Bailon could have easily located her, she having stayed at her parents residence in Barcelona, Sorsogon after she found out that Bailon was having an extramarital affair; and Bailon used to visit her even after their separation.

By Resolution of April 2, 2003, the SSC found that the marriage of respondent to Bailon was void and, therefore, she was "just a common-law-wife." Accordingly it disposed as follows, quoted verbatim: WHEREFORE, this Commission finds, and so holds, that petitioner Teresita Jarque-Bailon is not the legitimate spouse and primary beneficiary of SSS member Clemente Bailon. Accordingly, the petitioner is hereby ordered to refund to the SSS the amount of P24,000.00 representing the death benefit she received therefrom for the period February 1998 until May 1999 as well as P12,000.00 representing the funeral benefit. The SSS is hereby ordered to pay Alice (a.k.a. Aliz) Diaz-Bailon the appropriate death benefit arising from the demise of SSS member Clemente Bailon in accordance with Section 8(e) and (k) as well as Section 13 of the SS Law, as amended, and its prevailing rules and regulations and to inform this Commission of its compliance herewith. SO ORDERED.31 (Underscoring supplied) In so ruling against respondent, the SSC ratiocinated. After a thorough examination of the evidence at hand, this Commission comes to the inevitable conclusion that thepetitioner is not the legitimate wife of the deceased member. xxxx There is x x x ample evidence pointing to the fact that, contrary to the declaration of the then CFI of Sorsogon (10th Judicial District), the first wife never disappeared as the deceased member represented in bad faith. This Commission accords credence to the findings of the SSS contained in its Memorandum dated August 9, 1999,32revealing that Alice (a.k.a. Aliz) Diaz never left Barcelona, Sorsogon, after her separation from Clemente Bailon x x x. As the declaration of presumptive death was extracted by the deceased member using artifice and by exerting fraud upon the unsuspecting court of law, x x x it never had the effect of giving the deceased member the right to marry anew. x x x [I]t is clear that the marriage to the petitioner is void, considering that the first marriage on April 25, 1955 to Alice Diaz was not previously annulled, invalidated or otherwise dissolved during the lifetime of the parties thereto. x x x as determined through the investigation conducted by the SSS, Clemente Bailon was the abandoning spouse, not Alice Diaz Bailon. xxxx It having been established, by substantial evidence, that the petitioner was just a common-law wife of the deceased member, it necessarily follows that she is not entitled as a primary beneficiary, to the latters death benefit. x x x xxxx It having been determined that Teresita Jarque was not the legitimate surviving spouse and primary beneficiary of Clemente Bailon, it behooves her to refund the total amount of death benefit she received from the SSS for the period from February 1998 until May 1999 pursuant to the principle of solutio indebiti x x x

Likewise, it appearing that she was not the one who actually defrayed the cost of the wake and burial of Clemente Bailon, she must return the amount of P12,000.00 which was earlier given to her by the SSS as funeral benefit. 33(Underscoring supplied) Respondents Motion for Reconsideration 34 having been denied by Order of June 4, 2003, she filed a petition for review35 before the Court of Appeals (CA). By Decision of June 23, 2004, the CA reversed and set aside the April 2, 2003 Resolution and June 4, 2003 Order of the SSC and thus ordered the SSS to pay respondent all the pension benefits due her. Held the CA: x x x [T]he paramount concern in this case transcends the issue of whether or not the decision of the then CFI, now RTC, declaring Alice Diaz presumptively dead has attained finality but, more importantly, whether or not the respondents SSS and Commission can validly re-evaluate the findings of the RTC, and on its own, declare the latters decision to be bereft of any basis. On similar import, can respondents SSS and Commission validly declare the first marriage subsisting and the second marriage null and void? xxxx x x x while it is true that a judgment declaring a person presumptively dead never attains finality as the finding that "the person is unheard of in seven years is merely a presumption juris tantum," the second marriage contracted by a person with an absent spouse endures until annulled. It is only the competent court that can nullify the second marriage pursuant to Article 87 of the Civil Code and upon the reappearance of the missing spouse, which action for annulment may be filed. Nowhere does the law contemplates [sic] the possibility that respondent SSS may validly declare the second marriage null and void on the basis alone of its own investigation and declare that the decision of the RTC declaring one to be presumptively dead is without basis. Respondent SSS cannot arrogate upon itself the authority to review the decision of the regular courts under the pretext of determining the actual and lawful beneficiaries of its members. Notwithstanding its opinion as to the soundness of the findings of the RTC, it should extend due credence to the decision of the RTC absent of [sic] any judicial pronouncement to the contrary. x x x x x x [A]ssuming arguendo that respondent SSS actually possesses the authority to declare the decision of the RTC to be without basis, the procedure it followed was offensive to the principle of fair play and thus its findings are of doubtful quality considering that petitioner Teresita was not given ample opportunity to present evidence for and her behalf. xxxx Respondent SSS is correct in stating that the filing of an Affidavit of Reappearance with the Civil Registry is no longer practical under the premises. Indeed, there is no more first marriage to restore as the marital bond between Alice Diaz and Clemente Bailon was already terminated upon the latters death. Neither is there a second marriage to terminate because the second marriage was likewise dissolved by the death of Clemente Bailon. However, it is not correct to conclude that simply because the filing of the Affidavit of Reappearance with the Civil Registry where parties to the subsequent marriage reside is already inutile, the respondent SSS has now the authority to review the decision of the RTC and consequently declare the second marriage null and void.36(Emphasis and underscoring supplied)

The SSC and the SSS separately filed their Motions for Reconsideration 37 which were both denied for lack of merit. Hence, the SSS present petition for review on certiorari 38 anchored on the following grounds: I THE DECISION OF THE HONORABLE COURT OF APPEALS IS CONTRARY TO LAW. II THE HONORABLE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OF JURISDICTION.39 The SSS faults the CA for failing to give due consideration to the findings of facts of the SSC on the prior and subsisting marriage between Bailon and Alice; in disregarding the authority of the SSC to determine to whom, between Alice and respondent, the death benefits should be awarded pursuant to Section 540 of the Social Security Law; and in declaring that the SSS did not give respondent due process or ample opportunity to present evidence in her behalf. The SSS submits that "the observations and findings relative to the CFI proceedings are of no moment to the present controversy, as the same may be considered only as obiter dicta in view of the SSCs finding of the existence of a prior and subsisting marriage between Bailon and Alice by virtue of which Alice has a better right to the death benefits." 41 The petition fails. That the SSC is empowered to settle any dispute with respect to SSS coverage, benefits and contributions, there is no doubt. In so exercising such power, however, it cannot review, much less reverse, decisions rendered by courts of law as it did in the case at bar when it declared that the December 10, 1970 CFI Order was obtained through fraud and subsequently disregarded the same, making its own findings with respect to the validity of Bailon and Alices marriage on the one hand and the invalidity of Bailon and respondents marriage on the other. In interfering with and passing upon the CFI Order, the SSC virtually acted as an appellate court. The law does not give the SSC unfettered discretion to trifle with orders of regular courts in the exercise of its authority to determine the beneficiaries of the SSS. The two marriages involved herein having been solemnized prior to the effectivity on August 3, 1988 of the Family Code, the applicable law to determine their validity is the Civil Code which was the law in effect at the time of their celebration. 42 Article 83 of the Civil Code43 provides: Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any person other than such first spouse shall be illegal and void from its performance, unless: (1) The first marriage was annulled or dissolved; or

(2) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, or if the absentee, though he has been absent for less than seven years, is generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, or if the absentee is presumed dead according to Articles 390 and 391. The marriage so contracted shall be valid in any of the three cases until declared null and void by a competent court. (Emphasis and underscoring supplied) Under the foregoing provision of the Civil Code, a subsequent marriage contracted during the lifetime of the first spouse is illegal and void ab initio unless the prior marriage is first annulled or dissolved or contracted under any of the three exceptional circumstances. It bears noting that the marriage under any of these exceptional cases is deemed valid "until declared null and void by a competent court." It follows that the onus probandi in these cases rests on the party assailing the second marriage.44 In the case at bar, as found by the CFI, Alice had been absent for 15 consecutive years 45 when Bailon sought the declaration of her presumptive death, which judicial declaration was not even a requirement then for purposes of remarriage.46 Eminent jurist Arturo M. Tolentino (now deceased) commented: Where a person has entered into two successive marriages, a presumption arises in favor of the validity of the second marriage, and the burden is on the party attacking the validity of the second marriage to prove that the first marriage had not been dissolved; it is not enough to prove the first marriage, for it must also be shown that it had not ended when the second marriage was contracted. The presumption in favor of the innocence of the defendant from crime or wrong and of the legality of his second marriage, will prevail over the presumption of the continuance of life of the first spouse or of the continuance of the marital relation with such first spouse.47(Underscoring supplied) Under the Civil Code, a subsequent marriage being voidable, 48 it is terminated by final judgment of annulment in a case instituted by the absent spouse who reappears or by either of the spouses in the subsequent marriage. Under the Family Code, no judicial proceeding to annul a subsequent marriage is necessary. Thus Article 42 thereof provides: Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by therecording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio. A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed. (Emphasis and underscoring supplied) The termination of the subsequent marriage by affidavit provided by the above-quoted provision of the Family Code does not preclude the filing of an action in court to prove the reappearance of the absentee and obtain a declaration of dissolution or termination of the subsequent marriage. 49

If the absentee reappears, but no step is taken to terminate the subsequent marriage, either by affidavit or by court action, such absentees mere reappearance, even if made known to the spouses in the subsequent marriage, will not terminate such marriage.50 Since the second marriage has been contracted because of a presumption that the former spouse is dead, such presumption continues inspite of the spouses physical reappearance, and by fiction of law, he or she must still be regarded as legally an absentee until the subsequent marriage is terminated as provided by law.51 If the subsequent marriage is not terminated by registration of an affidavit of reappearance or by judicial declaration but by death of either spouse as in the case at bar, Tolentino submits: x x x [G]enerally if a subsequent marriage is dissolved by the death of either spouse, the effects of dissolution of valid marriages shall arise. The good or bad faith of either spouse can no longer be raised, because, as in annullable or voidable marriages, the marriage cannot be questioned except in a direct action for annulment.52(Underscoring supplied) Similarly, Lapuz v. Eufemio53 instructs: In fact, even if the bigamous marriage had not been void ab initio but only voidable under Article 83, paragraph 2, of the Civil Code, because the second marriage had been contracted with the first wife having been an absentee for seven consecutive years, or when she had been generally believed dead, still the action for annulment became extinguished as soon as one of the three persons involved had died, as provided in Article 87, paragraph 2, of the Code, requiring that the action for annulment should be brought during the lifetime of any one of the parties involved. And furthermore, the liquidation of any conjugal partnership that might have resulted from such voidable marriage must be carried out "in the testate or intestate proceedings of the deceased spouse," as expressly provided in Section 2 of the Revised Rule 73, and not in the annulment proceeding.54 (Emphasis and underscoring supplied) It bears reiterating that a voidable marriage cannot be assailed collaterally except in a direct proceeding. Consequently, such marriages can be assailed only during the lifetime of the parties and not after the death of either, in which case the parties and their offspring will be left as if the marriage had been perfectly valid.55 Upon the death of either, the marriage cannot be impeached, and is made good ab initio.56 In the case at bar, as no step was taken to nullify, in accordance with law, Bailons and respondents marriage prior to the formers death in 1998, respondent is rightfully the dependent spousebeneficiary of Bailon. In light of the foregoing discussions, consideration of the other issues raised has been rendered unnecessary. WHEREFORE, the petition is DENIED. No costs. SO ORDERED. CONCHITA CARPIO MORALES Associate Justice

THIRD DIVISION

VIRGILIO MAQUILAN, Petitioner,

G.R. NO. 155409 Present: YNARES-SANTIAGO, J ., Chairperson , AUSTRIA-MARTINEZ, CHICO-NAZARIO, and NACHURA, JJ .

- versus -

DITA MAQUILAN, Promulgated: Respondent. June 8, 2007 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION
AUSTRIA-MARTINEZ, J .:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the Decision [ 1 ] dated August 30, 2002 promulgated by the Court of Appeals (CA) in CA-G.R. SP No. 69689, which affirmed the Judgment on Compromise Agreement dated January 2, 2002 of the Regional Trial Court (RTC), Branch 3, Nabunturan, Compostela Valley, and the RTC Orders dated January 21, 2002 and February 7, 2002 (ORDERS) in Civil Case No. 656. The facts of the case, as found by the CA, are as follows:
Herein petitioner and herein private respondent are spouses who once had a blissful married life and out of which were blessed to have a son. However, their once sugar coated romance turned bitter when petitioner discovered that private respondent was having illicit sexual affair with her paramour,

which thus, prompted the petitioner to file a case of adultery against private respondent and the latters paramour. Consequently, both the private respondent and her paramour were convicted of the crime charged and were sentenced to suffer an imprisonment ranging from one (1) year, eight (8) months, minimum of prision correccional as minimum penalty, to three (3) years, six (6) months and twenty one (21) days, medium of prision correccional as maximum penalty. Thereafter, private respondent, through counsel, filed a Petition for Declaration of Nullity of Marriage, Dissolution and Liquidation of Conjugal Partnership of Gains and Damages on June 15, 2001 with the Regional Trial Court, Branch 3 of Nabunturan, Compostela Valley, docketed as Civil Case No. 656, imputing psychological incapacity on the part of the petitioner. During the pre-trial of the said case, petitioner and private respondent entered into a COMPROMISE AGREEMENT in the following terms, to wit:
1.
a.

In partial settlement of the conjugal partnership of gains, the parties agree to the following:
P 500 ,000.00 of the m oney deposi t ed in t he bank j oi ntl y i n t he nam e of the spouses shal l be wi t hdrawn and deposi t ed in favor and i n t rust of t hei r comm on chi l d, Nei l Maqui l an , wi t h the deposi t i n t he j oi nt account of the part i es. The bal ance of such deposi t , whi ch present l y st ands at P 1,318,043.36 , shal l be wi t hdrawn and di vi ded equal l y by the part i es; b. The st ore t hat i s now bei ng occupi ed by t he pl ai nt i ff shal l be al l ot t ed t o her whi l e the bodega shal l be for t he defendant . The defendant shall be pai d t he sum of P 50 ,000.00 as hi s share i n the st ocks of the st ore i n ful l set tl em ent thereof. The pl ai nt i ff shal l be al l owed t o occupy t he bodega unt il t he ti m e t he owner of the l ot on whi ch it st ands shal l const ruct a bui l di ng t hereon; c. The m ot orcycl es shal l be di vi ded bet ween t hem such t hat the Kawasaki shal l be owned by the

pl ai nt i ff whi l e the Honda Dream shal l be for t he defendant ; d. The passenger j eep shal l be for the pl ai nt i ff who shal l pay the defendant t he sum of P 75 ,000.00 as hi s share t hereon and i n ful l set t l em ent t hereof; The house and l ot shal l be t o the com m on chi l d.

e.

2.

This settlement is only partial, i.e., without prejudice to the litigation of other conjugal properties that have not been mentioned; x x x x

The said Compromise Agreement was given judicial imprimatur by the respondent judge in the assailed Judgment On Compromise Agreement , which was erroneously dated January 2, 2002. [ 2 ] However, petitioner filed an Omnibus Motion dated January 15, 2002, praying for the repudiation of the Compromise Agreement and the reconsideration of the Judgment on Compromise Agreement by the respondent judge on the grounds that his previous lawyer did not intelligently and judiciously apprise him of the consequential effects of the Compromise Agreement. The respondent Judge in the assailed Order dated January 21, 2002 , denied the aforementioned Omnibus Motion. Displeased, petitioner filed a Motion for Reconsideration of the aforesaid Order, but the same was denied in the assailed Order dated February 7, 2002 . [3] (Emphasis supplied)

The petitioner filed a Petition for Certiorari and Prohibition with the CA under Rule 65 of the Rules of Court claiming that the RTC committed grave error and abuse of discretion amounting to lack or excess of jurisdiction (1) in upholding the validity of the Compromise Agreement dated January 11, 2002; (2) when it held in its Order dated February 7, 2002 that the Compromise Agreement was made within the

cooling-off period; (3) when it denied petitioners Motion to Repudiate Compromise Agreement and to Reconsider Its Judgment on Compromise Agreement; and (4) when it conducted the proceedings without the appearance and participation of the Office of the Solicitor General and/or the Provincial Prosecutor. [ 4 ] On August 30, 2002, the CA dismissed the Petition for lack of merit. The CA held that the conviction of the respondent of the crime of adultery does not ipso facto disqualify her from sharing in the conjugal property, especially considering that she had only been sentenced with the penalty of prision correccional , a penalty that does not carry the accessory penalty of civil interdiction which deprives the person of the rights to manage her property and to dispose of such property inter vivos; that Articles 43 and 63 of the Family Code, which pertain to the effects of a nullified marriage and the effects of legal separation, respectively, do not apply, considering, too, that the Petition for the Declaration of the Nullity of Marriage filed by the respondent invoking Article 36 of the Family Code has yet to be decided, and, hence, it is premature to apply Articles 43 and 63 of the Family Code; that, although adultery is a ground for legal separation, nonetheless, Article 63 finds no application in the instant case since no petition to that effect was filed by the petitioner against the respondent; that the spouses voluntarily separated their property through their Compromise Agreement with court approval under Article 134 of the Family Code; that the Compromise Agreement, which embodies the voluntary separation of property, is valid and binding in all respects because it had been voluntarily entered into by the parties; that, furthermore, even if it were true that the petitioner was not duly informed by his previous counsel about the legal effects of the Compromise Agreement, this point is untenable since the mistake or negligence of the lawyer binds his client, unless such mistake or negligence amounts to gross negligence or deprivation of due process on the part of his client; that these exceptions are not present in the instant case; that the Compromise Agreement was plainly worded and written in simple language, which a person of ordinary intelligence can discern the consequences thereof, hence,

petitioners claim that his consent was vitiated is highly incredible; that the Compromise Agreement was made during the existence of the marriage of the parties since it was submitted during the pendency of the petition for declaration of nullity of marriage; that the application of Article 2035 of the Civil Code is misplaced; that the cooling-off period under Article 58 of the Family Code has no bearing on the validity of the Compromise Agreement; that the Compromise Agreement is not contrary to law, morals, good customs, public order, and public policy; that this agreement may not be later disowned simply because of a change of mind; that the presence of the Solicitor General or his deputy is not indispensable to the execution and validity of the Compromise Agreement, since the purpose of his presence is to curtail any collusion between the parties and to see to it that evidence is not fabricated, and, with this in mind, nothing in the Compromise Agreement touches on the very merits of the case of declaration of nullity of marriage for the court to be wary of any possible collusion; and, finally, that the Compromise Agreement is merely an agreement between the parties to separate their conjugal properties partially without prejudice to the outcome of the pending case of declaration of nullity of marriage. Hence, herein Petition, purely on questions of law, raising the following issues:
I. WHETHER OF NOT A SPOUSE CONVICTED OF EITHER CONCUBINAGE OR ADULTERY, CAN STILL SHARE IN THE CONJUGAL PARTNERSHIP; II WHETHER OR NOT A COMPROMISE AGREEMENT ENTERED INTO BY SPOUSES, ONE OF WHOM WAS CONVICTED OF ADULTERY, GIVING THE CONVICTED SPOUSE A SHARE IN THE CONJUGAL PROPERTY, VALID AND LEGAL;

III WHETHER OR NOT A JUDGMENT FOR ANNULMENT AND LEGAL SEPARATION IS A PRE-REQUISITE BEFORE A SPOUSE CONVICTED OF EITHER CONCUBINAGE OR ADULTERY, BE DISQUALIFIED AND PROHIBITED FROM SHARING IN THE CONJUGAL PROPERTY; IV WHETHER OR NOT THE DISQUALIFICATION OF A CONVICTED SPOUSE OF ADULTERY FROM SHARING IN A CONJUGAL PROPERTY, CONSTITUTES CIVIL [5] INTERDICTION.

The petitioner argues that the Compromise Agreement should not have been given judicial imprimatur since it is against law and public policy; that the proceedings where it was approved is null and void, there being no appearance and participation of the Solicitor General or the Provincial Prosecutor; that it was timely repudiated; and that the respondent, having been convicted of adultery, is therefore disqualified from sharing in the conjugal property. The Petition must fail. The essential question is whether the partial voluntary separation of property made by the spouses pending the petition for declaration of nullity of marriage is valid. First. The petitioner contends that the Compromise Agreement is void because it circumvents the law that prohibits the guilty spouse, who was convicted of either adultery or concubinage, from sharing in the conjugal property. Since the respondent was convicted of adultery, the petitioner argues that her share should be forfeited in favor of the common child under Articles 43(2) [ 6 ] and 63 [ 7 ] of the Family Code.

To the petitioner, it is the clear intention of the law to disqualify the spouse convicted of adultery from sharing in the conjugal property; and because the Compromise Agreement is void, it never became final and executory. Moreover, the petitioner cites Article 2035 [ 8 ] of the Civil Code and argues that since adultery is a ground for legal separation, the Compromise Agreement is therefore void. These arguments are specious. The foregoing provisions of the law are inapplicable to the instant case. Article 43 of the Family Code refers to Article 42, to wit:
Article 42. The subsequent marriage referred to in the preceding Article [ 9 ] shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio. A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed.

where a subsequent marriage is terminated because of the reappearance of an absent spouse; while Article 63 applies to the effects of a decree of legal separation. The present case involves a proceeding where the nullity of the marriage is sought to be declared under the ground of psychological capacity. Article 2035 of the Civil Code is also clearly inapplicable. The Compromise Agreement partially divided the properties of the conjugal partnership of gains between the parties and does not deal

with the validity of a marriage or legal separation. It is not among those that are expressly prohibited by Article 2035. Moreover, the contention that the Compromise Agreement is tantamount to a circumvention of the law prohibiting the guilty spouse from sharing in the conjugal properties is misplaced. Existing law and jurisprudence do not impose such disqualification. Under Article 143 of the Family Code, separation of property may be effected voluntarily or for sufficient cause, subject to judicial approval. The questioned Compromise Agreement which was judicially approved is exactly such a separation of property allowed under the law. This conclusion holds true even if the proceedings for the declaration of nullity of marriage was still pending. However, the Court must stress that this voluntary separation of property is subject to the rights of all creditors of the conjugal partnership of gains and other persons with pecuniary interest pursuant to Article 136 of the Family Code. Second. Petitioners claim that since the proceedings before the RTC were void in the absence of the participation of the provincial prosecutor or solicitor, the voluntary separation made during the pendency of the case is also void. The proceedings pertaining to the Compromise Agreement involved the conjugal properties of the spouses. The settlement had no relation to the questions surrounding the validity of their marriage. Nor did the settlement amount to a collusion between the parties. Article 48 of the Family Code states:
Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed. (Emphasis supplied)

Section 3(e) of Rule 9 of the 1997 Rules of Court provides:

SEC. 3. Default; declaration of.- x x x x x xx x (e) Where no defaults allowed . If the defending party in action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated. (Emphasis supplied

Truly, the purpose of the active participation of the Public Prosecutor or the Solicitor General is to ensure that the interest of the State is represented and protected in proceedings for annulment and declaration of nullity of marriages by preventing collusion between the parties, or the fabrication or suppression of evidence. [ 1 0 ] While the appearances of the Solicitor General and/or the Public Prosecutor are mandatory, the failure of the RTC to require their appearance does not per se nullify the Compromise Agreement. This Court fully concurs with the findings of the CA:
x x x. It bears emphasizing that the intendment of the law in requiring the presence of the Solicitor General and/or State prosecutor in all proceedings of legal separation and annulment or declaration of nullity of marriage is to curtail or prevent any possibility of collusion between the parties and to see to it that their evidence respecting the case is not fabricated. In the instant case, there is no exigency for the presence of the Solicitor General and/or the State prosecutor because as already stated, nothing in the subject compromise agreement touched into the very merits of the case of declaration of nullity of marriage for the court to be wary of any possible collusion between the parties. At the risk of being repetiti[ve], the compromise agreement pertains merely to an agreement between the petitioner and the private respondent to separate their conjugal properties partially

without prejudice to the outcome of the pending case of declaration of nullity of marriage. [ 1 1 ]

Third . The conviction of adultery does not carry the accessory of civil interdiction. Article 34 of the Revised Penal Code provides for the consequences of civil interdiction:
Art. 34. Civil Interdiction. Civil interdiction shall deprive the offender during the time of his sentence of the rights of parental authority, or guardianship, either as to the person or property of any ward, of marital authority, of the right to manage his property and of the right to dispose of such property by any act or any conveyance inter vivos.

Under Article 333 of the same Code, the penalty for adultery is prision correccional in its medium and maximum periods. Article 333 should be read with Article 43 of the same Code. The latter provides:
Art. 43. Prision correccional Its accessory penalties. The penalty of prision correccional shall carry with it that of suspension from public office, from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage, if the duration of said imprisonment shall exceed eighteen months. The offender shall suffer the disqualification provided in this article although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.

It is clear, therefore, and as correctly held by the CA, that the crime of adultery does not carry the accessory penalty of civil interdiction which deprives the person of the rights to manage her property and to dispose of such property inter vivos. Fourth. Neither could it be said that the petitioner was not intelligently and judiciously informed of the consequential effects of the compromise agreement, and that, on this basis, he may repudiate the Compromise Agreement. The argument of the petitioner that he

was not duly informed by his previous counsel about the legal effects of the voluntary settlement is not convincing. Mistake or vitiation of consent, as now claimed by the petitioner as his basis for repudiating the settlement, could hardly be said to be evident. In Salonga v. Court of Appeals , [ 1 2 ] this Court held:
[I]t is well-settled that the negligence of counsel binds the client. This is based on the rule that any act performed by a lawyer within the scope of his general or implied authority is regarded as an act of his client. Consequently, the mistake or negligence of petitioners' counsel may result in the rendition of an unfavorable judgment against them. Exceptions to the foregoing have been recognized by the Court in cases where reckless or gross negligence of counsel deprives the client of due process of law, or when its application "results in the outright deprivation of one's property through a technicality." x x x x [ 1 3 ]

None of these exceptions has been sufficiently shown in the present case. WHEREFORE, the Petition is DENIED . The Decision of Court of Appeals is AFFIRMED with MODIFICATION that subject Compromise Agreement is VALID without prejudice to rights of all creditors and other persons with pecuniary interest in properties of the conjugal partnership of gains. SO ORDERED. MA. ALICIA AUSTRIA-MARTINEZ Associate Justice the the the the

SECOND DIVISION G.R. No. L-53703 August 19, 1986

LILIA OLIVA WIEGEL, petitioner, vs. THE HONORABLE ALICIA V. SEMPIO-DIY (as presiding judge of the Juvenile and Domestic Relations Court of Caloocan City) and KARL HEINZ WIEGEL, respondents. Dapucanta, Dulay & Associates for petitioner. Siguion Reyna, Montecillo and Ongsiako Law Office for private respondent.

PARAS, J.: In an action (Family Case No. 483) filed before the erstwhile Juvenile and Domestic Relations Court of Caloocan City, herein respondent Karl Heinz Wiegel (plaintiff therein) asked for the declaration of Nullity of his marriage (celebrated on July, 1978 at the Holy Catholic Apostolic Christian Church Branch in Makati, Metro Manila) with herein petitioner Lilia Oliva Wiegel (Lilia, for short, and defendant therein) on the ground of Lilia's previous existing marriage to one Eduardo A. Maxion, the ceremony having been performed on June 25, 1972 at our Lady of Lourdes Church in Quezon City. Lilia, while admitting the existence of said prior subsisting marriage claimed that said marriage was null and void, she and the first husband Eduardo A. Maxion having been allegedly forced to enter said marital union. In the pre-trial that ensued, the issue agreed upon by both parties was the status of the first marriage (assuming the presence of force exerted against both parties): was said prior marriage void or was it merely voidable? Contesting the validity of the pre-trial order, Lilia asked the respondent court for an opportunity to present evidence(1) that the first marriage was vitiated by force exercised upon both her and the first husband; and (2) that the first husband was at the time of the marriage in 1972 already married to someone else. Respondent judge ruled against the presentation of evidence because the existence of force exerted on both parties of the first marriage had already been agreed upon. Hence, the present petition for certiorari assailing the following Orders of therespondent Judge(1) the Order dated March 17, 1980 in which the parties were compelled to submit the case for resolution based on "agreed facts;" and (2) the Order dated April 14, 1980, denying petitioner's motion to allow her to present evidence in her favor. We find the petition devoid of merit. There is no need for petitioner to prove that her first marriage was vitiated by force committed against both parties because assuming this to be so, the marriage will not be void but merely viodable (Art. 85, Civil Code), and therefore valid until annulled. Since no annulment has yet been made, it is clear that when she married respondent she was still validly married to her first husband, consequently, her marriage to respondent is VOID (Art. 80, Civil Code). There is likewise no need of introducing evidence about the 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 Court a judicial declaration 1 of such fact and for all legal intents and purposes she

would still be regarded as a married woman at the time she contracted her marriage with respondent Karl Heinz Wiegel); accordingly, the marriage of petitioner and respondent would be regarded VOID under the law. WHEREFORE, this petition is hereby DISMISSED, for lack of merit, and the Orders complained of are hereby AFFIRMED. Costs against petitioner. SO ORDERED. Feria (Chairman), Fernan Alampay and Gutierrez, Jr., JJ., concur. EN BANC G.R. No. L-1967 May 28, 1951

Probate of the will of the late Faustino Neri San Jose. PAZ NERI SAN JOSE, petitioner. MATILDE MENCIANO, in her behalf and in behalf of the minors CARLO MAGNO NERI and FAUSTINO NERI, Jr., plaintiffs-appellees, vs. PAZ NERI SAN JOSE and RODOLFO PELAEZ, defendants-appellants. Claro M. Recto, Francisco R. Capistrano, Pelaez, Pelaez and Pelaez and Ernesto V. Chavez for appellants. Pineda, Hermosisima and Neri for appellees. JUGO, J.: In the course of the proceedings for the settlement of the estate of the deceased Faustino Neri San Jose, Special Proceedings No. 6-A of the Court First Instance of Misamis Oriental, Matilde Menciano, in her behalf and in behalf of the minors Carlo Magno Neri and Faustino Neri, Jr., filed a motion for declaration of heirs, alleging that she is the widow of the deceased Faustino Neri San Jose, to whom she was married according to the rites of the Roman Catholic Church on September 28, 1944, before Rev. Father Isaias Edralin, S. J.; that before the marriage the deceased and she lived together as husband and wife, there having been no impediment to their marriage; that as a result of their cohabitation before the marriage the child Carlo Magno Neri was born on March 9, 1940 and was later baptized, said child having enjoyed the status of a recognized natural child; that their second child Faustino Neri, Jr., was born on April 24, 1945; and that Carlo Magno Neri was legitimized by the subsequent matrimony of his parents and Faustino Neri, Jr., is a legitimate child born in lawful wedlock. Paz Neri San Jose, then executrix of the estate of the deceased Faustino Neri San Jose, and Rodolfo Pelaez, designated universal heir in the will of the deceased dated December 19, 1940, filed an amended answer with the permission of the court, in which they denied the substantial allegations of the abovementioned motion for declaration of heirs and further alleged in substance that the deceased Faustino Neri San Jose, from the year 1943, was suffering from senile dementia caused by anemia which became worse from September 9, 1944, when the Province of Misamis Oriental where the deceased lived was bombarded by American planes; that the marriage between said deceased and Matilde Menciano, if it was solemnized, was in violation of the legal provisions and requisites, for he (the deceased) was deprived of his free will due to his age, sickness, and bombardment, and Matilde Menciano, taking advantage of the deceased's condition, by intrigue and threat of abandoning him, forced Neri by means of deceit (dolo) and threat to marry

her; and that the deceased was sterile, unable to procreate, and was impotent and congenitally sterile, the same as his brothers Anastasio, Filomeno, Pedro, and his sister Conchita, who had no children. The defendants also filed a counterclaim for the sum of P286,000 in cash, and for jewels and certain properties, which, as alleged, were retained and illegally disposed of by Matilde Menciano. The above allegations of the parties give rise to the following issues: (1) Was the marriage between the deceased Faustino Neri San Jose and Matilde Menciano valid?; (2) Are, the children Faustino Neri, Jr. and Carlo Magno Neri the legitimate children of the deceased Faustino Neri San Jose and Matilde Menciano?; and (3) Did Matilde Menciano have in her possession and illegally disposed of the cash, jewels, and certain properties above mentioned? The marriage between the deceased and Matilde Menciano is evidenced by Exhibit I-C, which is an application for a marriage license, dated September 28, 1944, signed by Faustino Neri San Jose, to marry Matilde Menciano; Exhibit 1-B, also an application for a marriage license dated September 28, 1944, signed by Matilde Menciano, to marry Faustino Neri San Jose; Exhibit 1-D, certificate for immediate issuance of the marriage license applied for, signed by the Acting Local Civil Registrar and Faustino Neri San Jose and Matilde Menciano; and Exhibit 1-A, the marriage contract signed by Faustino Neri San Jose and Matilde Menciano as contracting parties, Rev. Isaias Edralin, as solemnizing officer, and the witnesses L. B. Castaos and Samson Pagan. As all the above four exhibits are official and public documents, their validity can be successfully assailed only by strong, clear, and convincing oral testimony. In the case of Arroyo vs. Granada (18 Phil, 484), it was held: 1. CANCELLATION OF INSTRUMENTS; SUFFICIENCY OF PROOF. To justify the setting aside of an instrument solemnly executed and voluntarily delivered, upon the ground that its execution was obtained by false and fraudulent representations, the proof must be clear and convincing. (Syllabus) In the case of Sy Tiangco vs. Pablo and Apao (59 Phil., 119), this Court declared: 1. PUBLIC DOCUMENT; EXECUTION; DENIAL OF ALLEGED SIGNER; BURDEN OF PROOF. Plaintiff's attorneys vigorously contend that when the plaintiff denied having signed the deed it was incumbent upon the defendants to can the witnesses thereto. The execution of a document that has been ratified before a notary public cannot be disproved by the mere denial of the alleged signer. No inference unfavorable to the defendant arises from their failure to call the subscribing witnesses. (Syllabus) Is the oral evidence presented by the defendants of sufficient force and weight to overcome the above official documents? The witnesses for the defendants testified in substance that the deceased Faustino Neri was so weak and sick that he could not even talk coherently and intelligibly. Their testimony is too sweeping, because they refer to a general period of time. There must have been times when the deceased may have been unable to attend to business or even to converse on account of his sickness, and even

Father Edralin did not solemnize the marriage on a certain date on account of the weak condition of Faustino Neri and waited for about two days to perform the ceremony when the old man, although somewhat weak, had a clear mind. Father Edralin's testimony is strongly corroborated by the form of the signatures of Faustino Neri in the above mentioned Exhibits 1-A, 1-C, and 1-D. A mere glance at those signatures will convince anyone that they could not have been written by a man who is almost unconscious and physically and intellectually incapacitated, as the defendants' witnesses represent him to have been. It should be noted that his signature is complicated, containing many flourishes, such that it can not be signed by one who is not of sound mind and of fair physical condition. He may have been sick at that time, but not to such a degree as to render him unconscious of what he was doing. If the signatures of the deceased in Exhibits 1-A, 1-C, and 1-D are compared with each other it will be readily seen that they are practically uniform, which could not have been accomplished by a man who is a nervous wreck. There is no sign of trembling of the hands or fingers of the person who affixed those signatures, which usually happens to a very sick man. In the case of Torres et al. vs. Lopez (48 Phil., 772), this court made the following pronouncement: 3. ID.; ID TESTS OF CAPACITY. Neither old age, physical infirmities, feebleness of mind, weakness of the memory, the appointment of a guardian, nor eccentricities are sufficient singly or jointly to show testamentary incapacity. The nature and rationally of the will is of some practical utility in determining capacity. Each case rests on its own facts and must be decided by its own facts. (Syllabus, p. 773.) xxx xxx xxx

11. ID.; ID.; ID.; ID.; CASE AT BAR. On January 3, 1924, when the testator, Tomas Rodriguez, made his will, he was 76 years old, physically decrepit, weak of intellect, suffering from a loss of memory, had a guardian of his person and his person and his property, and was eccentric, but he still possessed that spark of reason and of life, that strength of mind to form a fixed intention and to summon his enfeebled thoughts to enforce that intention, which the law terms "testamentary capacity." Two of the subscribing witnesses testified clearly to the regular manner in which the will was executed, and one did not. The attending physicians and three other doctors who were present at the execution of the will expressed opinions entirely favorable to the capacity of the testator. Three other members of the medical profession expressed opinions entirely unfavorable to the capacity of the testator and certified that he was of unsound mind. Held, That Tomas Rodriguez on January 3, 1924, possessed sufficient mentality to make a will which would meet the legal test regarding testamentary capacity; that the proponents of the will have carried successfully the burden of proof and have shown him of sound mind on that date; and that it was reversible error on the part of the trial court not to admit his will to probate. (Syllabus, p. 774) In Sancho vs. Abella (58 Phil., 728), this court said: 1. WILLS; PROBATE; CAPACITY TO MAKE A WILL. Neither senile debility, nor deafness, nor blindness, nor poor memory, is by itself sufficient to establish the presumption that the person suffering therefrom is not in the full enjoyment of his mental faculties, when there is sufficient evidence of his mental sanity at the time of the execution of the will. 2. ID.; ID.; ID.; Neither the facts of her being given accommodations in a convent, nor the presence of the parish priest, nor a priest acting as a witness, constitutes undue influence sufficient to justify the annulment of a legacy in favor of a bishop of a diocese, made in her will by a testatrix 88 years of age, suffering from defective eyesight and hearing, while she is stopping in a convent within the aforesaid diocese. (Syllabi)

Although the above doctrine relates to testamentary capacity, there is no reason why it should not be applied to the capacity to contract marriage, which requires the same mental condition. Consequently, the court below did not err in declaring valid the marriage of Faustino Neri San Jose and Matilde Menciano. The next issue is whether Faustino Neri, Jr., and Carlo Magno Neri are legitimate children of the deceased Faustino Neri and Matilde Menciano. As above stated, the deceased Faustino Neri and Matilde Menciano were married on September 28, 1944. Faustino Neri, Jr., was born on April 24, 1945; that is, two hundred eight days, or more than one hundred eighty days, after the marriage, but less than three hundred days after the death of Faustino Neri San Jose which occurred on October 11, 1944. There is no question that before and after the marriage, the deceased and Matilde Menciano co-habitated. Rule 123, section 68 (c), reads as follows: SEC. 68. Conclusive presumptions. The following are instances of conclusive presumptions: xxx xxx xxx

(c) The issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed to be legitimate, if not born within the one hundred and eighty days immediately succeeding the marriage, or after the expiration of three hundred days following its dissolution; xxx xxx xxx

The above-quoted provision is so clear that it does not require interpretation or construction, but only application. The requirements for the conclusive presumption that Faustino Neri, Jr. is the legitimate son of the legitimate marriage of the deceased Faustino Neri and Matilde Menciano exist as above stated, with the possible exception of the requisite as to potency. Was the deceased Faustino Neri impotent during his cohabitation with Matilde Menciano? Impotency being an abnormal condition should not be presumed. The presumption is in favor of potency. The best evidence that the deceased was potent is the statement of Dr. Antonio Garcia that in order to get a specimen of the semen of the deceased Faustino Neri for examination as to its contents of spermatozoa, Faustino, following the doctor's advice, used a rubber sac, commonly called "condom", and a woman. The fact that the deceased was able to produce the specimen by said means shows conclusively that he was potent. Impotency is not synonymous with sterility. Impotency is the physical inability to have sexual intercourse; it is different from sterility. (1) Impotence, in Medical Jurisprudence. Inability on the part of the male organ of copulation to perform its proper function. Impotence applies only to disorders affecting the functions of the organ of copulation, while sterility applies only to lack of fertility in the reproductive elements of either sex. (Dennis, System of Surgery; Bouvier's Law Dictionary, Rawle's Third Revision, Vol. 11, p. 1514) (2) Impotencia (L.) Impotence.

Impotencia Coeundi, inability of the male to perform the sexual act. Impotentia Erigendi, inability to have an erection of the penis.(The American Illustrated Medical Dictionary, by Dorland 20th Edition, p. 721) i. Coeundi. Inability of the male to perform the sexual act. i. erigendi, impotence due to the absence of the power of erection. (Stedman's Practical Medical Dictionary, p. 551) (4) Impotence. "3. Law & Med. Incapacity for sexual intercourse." (Webster's New International Dictionary, Second Edition, Unabridged, p. 1251) (5) Impotency or Impotence. Want of power for copulation, not mere sterility. The absence of complete power of copulation is an essential element to constitute impotency. (31 C. J., P. 259) (6) Impotence. Inability to perform the sexual act may be due to defective organs from abnormal or incomplete development, or to deficient internal secretions, or to disorders of the nervous system diminishing the libido. Impotence may or may not be accompanied by sterility. (The Columbia Encyclopedia, 877) Consequently, the requisite of potency also existed. The necessary conclusion is that the child Faustino Neri, Jr., is conclusively presumed to be the legitimate son of the deceased Faustino Neri with Matilde Menciano in lawful wedlock. The attorney for the plaintiffs correctly objected to the evidence regarding sterility and any other evidence as to paternity. The objection should not have been overruled. However, even considering the evidence as to sterility, it results that the examinations of the semen by Drs. Garcia and Marfori in 1940, to determine the existence of spermatozoa, do not establish that the deceased was sterile. According to medical jurisprudence, a man may not have spermatozoa at a certain time, but may have had it previously or may have it subsequently to the examination. The examinations by Drs. Garcia and Marfori were made in 1940. From that time Faustino Neri San Jose cohabited with Matilde Menciano until his death on October 11, 1944. Doctor Jose F. Marfori. testified as follows: Q. How many times did you examine his seminal fluid? A. Only once. Q. In other words, from the latter part of 1940 up to his death, you examined only once his seminal fluid? A. Yes, sir. Q. Is it not a fact that you cannot determine sterility or his inability to procreate with one examination? A. It would have been better if there was an examination of his seminal fluid every year. Q. But the truth is that today a man may lack spermatozoa in his seminal fluid, but much later it may appear? A. That is possible. (P. 28, t. s. n., Gaane) It should be noted that Doctor Marfori is a nephew-in-law of the deceased Faustino Neri.

With regard to the supposed examination made by Doctor Garcia in Cebu on December 9, 1940, Cristobal Lopez, nephew of Faustino, testified that during said period, December, 1940, the deceased Neri never went out of Cagayan, Oriental Misamis. We cannot accord much weight to the testimony of Doctor Garcia that he made the examination. But even supposing that said doctors made such examinations, still the result is inconclusive, for the reasons above set forth, and cannot in any way overthrow the conclusive presumption established by Rule 123, section 68 (c). Carlo Magno Neri was born on March 9, 1940, that is, before the marriage. Both the deceased Faustino and Matilde Menciano free to marry without any legal impediment. However, the court below declared that Carlo Magno Neri has not been acknowledged as a natural child and, consequently, cannot be legitimized by the subsequent marriage of his parents. We cannot review this finding because the plaintiffs did not appeal. The defendants allege that Matilde Menciano is retaining or has illegally disposed of P286,000, genuine Philippine currency, certain jewels, and documents. The trial court, after a careful and exhaustive review of the evidence, correctly reached the conclusion that such allegation has not been substantiated. Let us make a short analysis of the defendants' evidence on this point. The principal witness for this claim was Rodolfo Pelaez, who testified that the deceased Faustino in 1939 delivered to him the sum of P250,000 in small denominations to be exchanged in a bank in Manila for bills of larger denominations as P500, etc. After having exchanged it with the help of Representative Ozamis (dead on the date of the trial), he returned to the province and delivered the sum to the deceased Neri. On cross-examination he was not able to say whether the bills he took to Manila in October, 1939, were treasury certificates or bank bills; that in July, 1944, he visited Cagayan and he saw his uncle Faustino living with Matilde Menciano and Carlo Magno Neri in the house of a Chinaman on Calle Del Mar; that he saw the sum of P250,000 in a wooden aparador. But when he was asked whether he actually saw the money in the aparador, he said he was so informed by his uncle. His testimony is hearsay. Furthermore, there is no reason why his uncle should have accounted to him for the money. His testimony is contradicted by that of Paz Neri San Jose, his mother, who stated that the deceased Faustino went to the house of the Chinaman on Calle Del Mar only to fetch certain document which he had left there; that the deceased was not living in said house; that he went there now and play monte; that the deceased and herself were living in the house of one Tamparong; that the deceased used to carry with him his money, jewels, and documents, in a sack, wherever he went to play; that at the time of the air raid by the Americans, the deceased went to the house on Calle Del Mar carrying the said sack, but he returned to the house of Tamparong, leaving the sack in the house on Calle Del Mar, but after the air raid he returned on the latter house to fetch the sack. This testimony of Paz Neri, who was a witness for the defendants and a co-defendant herself, contradicts in essential and important features that of Rodolfo Pelaez. The testimony of Paz Neri would show that the deceased Neri was distrustful of relatives and friends when his funds were concerned. P250,000 in 1939 was quite a fortune in itself and, consisting of cash, could have been easily disposed of. In 1939 nobody believed for certain that there would be war. Why then should the deceased have wanted to change the money for bigger denominations when he could have deposited it in a nearby branch of the Philippine National Bank where the deceased could have gone, for, as alleged by the defendants, he even went to Cebu in 1940 for examination of his seminal fluid? It was testified to by Clotilde Galarrita de Labitad that Matilde Menciano showed to her the sum of P284,000 in genuine Philippine currency and counted the money in her presence. This is

unbelievable. Could she not have counted it without the presence of anybody and thus avoided the danger of theft or robbery? With regard to the jewels no satisfactory evidence was presented to prove that Matilde Menciano misappropriated them. She received and had in her possession a few jewels given to her by the deceased Faustino for the benefit of the children. As to the revocation of the appointment of Paz Neri San Jose as executrix, the trial court made a reasonable exercise of its discretion in setting it aside and appointing Matilde Menciano administratrix, in view of the hostility between them which would cause many incidental questions and delay in the termination of the proceedings if Paz Neri had continued as executrix. We see no reason for interfering in the case with the discretion of the court. The appellees contended that the court erred in not completely annulling the institution of universal heir, without considering Rodolfo Pelaez as a legatee. Inasmuch as the plaintiffs did not appeal, they are bound by the decision of the trial court. In view of the foregoing, the judgment appealed from is affirmed in all its parts, with costs against the appellants. It is so ordered. Paras, Bengzon, C. J., Feria, Pablo, Montemayor and Bautista Angelo, JJ., concur. EN BANC

G.R. No. L-27930 November 26, 1970 AURORA A. ANAYA, plaintiff-appellant, vs. FERNANDO O. PALAROAN, defendant-appellee. Isabelo V. Castro for plaintiff-appellant. Arturo A. Romero for defendant-appellee.

REYES, J.B.L., J.: Appeal from an order of dismissal, issued motu proprio by the Juvenile & Domestic Relations Court, Manila, of a complaint for annulment of marriage, docketed therein as Civil Case No. E-00431, entitled "Aurora A. Anaya, plaintiff vs. Fernando O. Palaroan, defendant." The complaint in said Civil Case No. E-00431 alleged, inter alia, that plaintiff Aurora and defendant Fernando were married on 4 December 1953; that defendant Fernando filed an action for annulment of the marriage on 7 January 1954 on the ground that his consent was obtained through force and intimidation, which action was docketed in the Court of First Instance of Manila as Civil Case No. 21589; that judgment was rendered therein on 23 September 1959 dismissing the complaint of Fernando, upholding the validity of the marriage and granting Aurora's counterclaim; that (per paragraph IV) while the amount of the counterclaim was being negotiated "to settle the judgment,"

Fernando had divulged to Aurora that several months prior to their marriage he had pre-marital relationship with a close relative of his; and that "the non-divulgement to her of the aforementioned pre-marital secret on the part of defendant that definitely wrecked their marriage, which apparently doomed to fail even before it had hardly commenced ... frank disclosure of which, certitude precisely precluded her, the Plaintiff herein from going thru the marriage that was solemnized between them constituted 'FRAUD', in obtaining her consent, within the contemplation of No. 4 of Article 85 of the Civil Code" (sic) (Record on Appeal, page 3). She prayed for the annulment of the marriage and for moral damages. Defendant Fernando, in his answer, denied the allegation in paragraph IV of the complaint and denied having had pre-marital relationship with a close relative; he averred that under no circumstance would he live with Aurora, as he had escaped from her and from her relatives the day following their marriage on 4 December 1953; that he denied having committed any fraud against her. He set up the defenses of lack of cause of action and estoppel, for her having prayed in Civil Case No. 21589 for the validity of the marriage and her having enjoyed the support that had been granted her. He counterclaimed for damages for the malicious filing of the suit. Defendant Fernando did not pray for the dismissal of the complaint but for its dismissal "with respect to the alleged moral damages." Plaintiff Aurora filed a reply with answer to the counterclaim, wherein she alleged: (1) that prior to their marriage on 4 December 1953, he paid court to her, and pretended to shower her with love and affection not because he really felt so but because she merely happened to be the first girl available to marry so he could evade marrying the close relative of his whose immediate members of her family were threatening him to force him to marry her (the close relative); (2) that since he contracted the marriage for the reason intimated by him, and not because he loved her, he secretly intended from the very beginning not to perform the marital duties and obligations appurtenant thereto, and furthermore, he covertly made up his mind not to live with her; (3) that the foregoing clandestine intentions intimated by him were prematurely concretized for him, when in order to placate and appease the immediate members of the family of the first girl (referent being the close relative) and to convince them of his intention not to live with plaintiff, carried on a courtship with a third girl with whom, after gaining the latter's love cohabited and had several children during the whole range of nine years that Civil Case No. 21589, had been litigated between them (parties); (Record on Appeal, pages 10-11) Failing in its attempt to have the parties reconciled, the court set the case for trial on 26 August 1966 but it was postponed. Thereafter, while reviewing the expendiente, the court realized that Aurora's allegation of the fraud was legally insufficient to invalidate her marriage, and, on the authority of Brown vs. Yambao, 102 Phil. 168, holding: It is true that the wife has not interposed prescription as a defense. Nevertheless, the courts can take cognizance thereof, because actions seeking a decree of legal separation, or annulment of marriage, involve public interest, and it is the policy of our law that no such decree be issued if any legal obstacles thereto appear upon the record.

the court a quo required plaintiff to show cause why her complaint should not be dismissed. Plaintiff Aurora submitted a memorandum in compliance therewith, but the court found it inadequate and thereby issued an order, dated 7 October 1966, for the dismissal of the complaint; it also denied reconsideration. The main issue is whether or not the non-disclosure to a wife by her husband of his pre-marital relationship with another woman is a ground for annulment of marriage. We must agree with the lower court that it is not. For fraud as a vice of consent in marriage, which may be a cause for its annulment, comes under Article 85, No. 4, of the Civil Code, which provides: ART. 85. A marriage may be annulled for any of the following causes, existing at the time of the marriage: xxx xxx xxx (4) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as her husband or his wife, as the case may be; This fraud, as vice of consent, is limited exclusively by law to those kinds or species of fraud enumerated in Article 86, as follows: ART. 86. Any of the following circumstances shall constitute fraud referred to in number 4 of the preceding article: (1) Misrepresentation as to the identity of one of the contracting parties; (2) Non-disclosure of the previous conviction of the other party of a crime involving moral turpitude, and the penalty imposed was imprisonment for two years or more; (3) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband. No other misrepresentation or deceit as to character, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage. The intention of Congress to confine the circumstances that can constitute fraud as ground for annulment of marriage to the foregoing three cases may be deduced from the fact that, of all the causes of nullity enumerated in Article 85, fraud is the only one given special treatment in a subsequent article within the chapter on void and voidable marriages. If its intention were otherwise, Congress would have stopped at Article 85, for, anyway, fraud in general is already mentioned therein as a cause for annulment. But Article 86 was also enacted, expressly and specifically dealing with "fraud referred to in number 4 of the preceding article," and proceeds by enumerating the specific frauds (misrepresentation as to identity, non-disclosure of a previous conviction, and concealment of pregnancy), making it clear that Congress intended to exclude all other frauds or deceits. To stress further such intention, the enumeration of the specific frauds was followed by the interdiction: "No other misrepresentation or deceit as to character, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage."

Non-disclosure of a husband's pre-marital relationship with another woman is not one of the enumerated circumstances that would constitute a ground for annulment; and it is further excluded by the last paragraph of the article, providing that "no other misrepresentation or deceit as to ... chastity" shall give ground for an action to annul a marriage. While a woman may detest such nondisclosure of premarital lewdness or feel having been thereby cheated into giving her consent to the marriage, nevertheless the law does not assuage her grief after her consent was solemnly given, for upon marriage she entered into an institution in which society, and not herself alone, is interested. The lawmaker's intent being plain, the Court's duty is to give effect to the same, whether it agrees with the rule or not. But plaintiff-appellant Anaya emphasizes that not only has she alleged "non-divulgement" (the word chosen by her) of the pre-marital relationship of her husband with another woman as her cause of action, but that she has, likewise, alleged in her reply that defendant Fernando paid court to her without any intention of complying with his marital duties and obligations and covertly made up his mind not to live with her. Plaintiff-appellant contends that the lower court erred in ignoring these allegations in her reply. This second set of averments which were made in the reply (pretended love and absence of intention to perform duties of consortium) is an entirely new and additional "cause of action." According to the plaintiff herself, the second set of allegations is "apart, distinct and separate from that earlier averred in the Complaint ..." (Record on Appeal, page 76). Said allegations were, therefore, improperly alleged in the reply, because if in a reply a party-plaintiff is not permitted to amend or change the cause of action as set forth in his complaint (Calo vs. Roldan, 76 Phil. 445), there is more reason not to allow such party to allege a new and additional cause of action in the reply. Otherwise, the series of pleadings of the parties could become interminable. On the merits of this second fraud charge, it is enough to point out that any secret intention on the husband's part not to perform his marital duties must have been discovered by the wife soon after the marriage: hence her action for annulment based on that fraud should have been brought within four years after the marriage. Since appellant's wedding was celebrated in December of 1953, and this ground was only pleaded in 1966, it must be declared already barred. FOR THE FOREGOING REASONS, the appealed order is hereby affirmed. No costs. Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo and Villamor, JJ., concur. Dizon and Makasiar, JJ., are on leave.

SECOND DIVISION

[G.R. No. 116607. April 10, 1996]

EMILIO TUASON, petitioner, vs. COURT OF APPEALS and MARIA VICTORIA L. TUASON, respondents.
SYLLABUS

1.

REMEDIAL LAW; CIVIL PROCEDURE; RELIEF FROM JUDGMENT; ALLOWED ONLY IN EXCEPTIONAL CASES WHERE THERE IS NO OTHER AVAILABLE OR ADEQUATE REMEDY. - A petition for relief from judgment is an equitable remedy; it is allowed only in exceptional cases where there is no other available or adequate remedy. When a party has another remedy available to him, which may be either a motion for new trial or appeal from an adverse decision of the trial court, and he was not prevented by fraud, accident, mistake or excusable negligence from filing such motion or taking such appeal, he cannot avail himself of this petition. Indeed, relief will not be granted to a party who seeks avoidance from the effects of the judgment when the loss of the remedy at law was due to his own negligence; otherwise the petition for relief can be used to revive the right to appeal which have been lost thru inexcusable negligence. ID.; ID.; ID.; WHEN AVAILED MUST BE BASED ON THE GROUND OF FRAUD, ACCIDENT, MISTAKE OR EXCUSABLE NEGLIGENCE AND THAT IT IS SHOWN THAT PETITIONER HAS A GOOD, SUBSTANTIAL AND MERITORIOUS DEFENSE OR CAUSE OF ACTION. - A petition for relief from judgment is governed by Rule 38, Section 2 of the Revised Rules of Court. A final and executory judgment or order of the Regional Trial Court may be set aside on the ground of fraud, accident, mistake or excusable negligence. In addition, the petitioner must assert facts showing that he has a good, substantial and meritorious defense or cause of action. If the petition is granted, the court shall proceed to hear and determine the case as if a timely motion for new trial had been granted therein. ID.; ID.; ID.; NOTICES SENT TO COUNSEL OF RECORD, BINDING UPON THE CLIENT. The failure of petitioners counsel to notify him on time of the adverse judgment to enable him to appeal therefrom is negligence which is not excusable. Notice sent to counsel of record is binding upon the client and the neglect or failure of counsel to inform him of an adverse judgment resulting in the loss of this right to appeal is not a ground for setting aside a judgment valid and regular on its face. ID.; ID.; ID.; COUNSEL REQUIRED TO INFORM THE TRIAL COURT THE REASON FOR HIS CLIENTS NON-APPEARANCE AT THE SCHEDULED HEARINGS. - Similarly inexcusable was the failure of his former counsel to inform the trial court of petitioners confinement and medical treatment as the reason for his non-appearance at the scheduled hearings. Petitioner has not given any reason why his former counsel, intentionally or unintentionally, did not inform the court of this fact. This

2.

3.

4.

led the trial court to order the case deemed submitted for decision on the basis of the evidence presented by the private respondent alone. To compound the negligence of petitioners counsel, the order of the trial court was never assailed via a motion for reconsideration. 5. ID.; EVIDENCE; CREDIBILITY OF WITNESSES; FACTUAL FINDINGS OF THE TRIAL COURT UPHELD ABSENT PROOF THAT THE WITNESSES TESTIMONIES ARE CLEARLY AND MANIFESTLY ERRONEOUS. -Suffice it to state that the finding of the trial court as to the existence or non-existence of petitioners psychological incapacity at the time of the marriage is final and binding on us. Petitioner has not sufficiently shown that the trial courts factual findings and evaluation of the testimonies of private respondents witnesses vis-a-vis petitioners defenses are clearly and manifestly erroneous. CONSTITUTIONAL LAW; BILL OF RIGHTS; PROCEDURAL DUE PROCESS; NOT VIOLATED IF PETITIONER WAS GIVEN OPPORTUNITY TO BE HEARD. - Petitioner cannot now claim that he was deprived of due process. He may have lost his right to present evidence but he was not denied his day in court. As the records show, petitioner, through counsel, actively participated in the proceedings below. He filed his answer to the petition, cross-examined private respondents witnesses and even submitted his opposition to private respondents motion for dissolution of the conjugal partnership of gains. CIVIL LAW; FAMILY CODE; ANNULMENT, DECLARATION OF NULLITY AND LEGAL SEPARATION; PROSECUTING ATTORNEY OR FISCAL MAY BE ORDERED BY THE COURT TO INTERVENE ON BEHALF OF THE STATE TO PREVENT COLLUSION BETWEEN THE PARTIES. - A grant of annulment of marriage or legal separation by default is fraught with the danger of collusion. Hence, in all cases for annulment, declaration of nullity of marriage and legal separation, the prosecuting attorney or fiscal is ordered to appear on behalf of the state for the purpose of preventing any collusion between the parties and to take care that their evidence is not fabricated or suppressed. If the defendant spouse fails to answer the complaint, the court cannot declare him or her in default but instead, should order the prosecuting attorney to determine if collusion exists between the parties. The prosecuting attorney or fiscal may oppose the application for legal separation or annulment through the presentation of his own evidence, if in his opinion, the proof adduced is dubious and fabricated.

6.

7.

8.

ID.; ID.; ID.; NON-INTERFERENCE OF A PROSECUTING ATTORNEY IS NOT FATAL TO THE VALIDITY OF THE PROCEEDINGS IN THE TRIAL COURT IF PETITIONER VEHEMENTLY OPPOSED THE ANNULMENT OF THEIR MARRIAGE IN THE SAID COURT. - The role of the prosecuting attorney or fiscal in annulment of marriage and legal separation proceedings is to determine whether collusion exists between the parties and to take care that the evidence is not suppressed or fabricated. Petitioners 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. APPEARANCES OF COUNSEL Seguion Reyna, Montecillo & Ongsiako for petitioner. Salonga, Hernandez & Allado for private respondent.

DECISION
PUNO, J.:

This petition for review on certiorari seeks to annul and set aside the decision dated July 29, 1994 of the Court of Appeals in CA-G.R. CV No. 37925 denying petitioners appeal from an order of the Regional Trial Court, Branch 149, Makati in Civil Case No. 3769. This case arose from the following facts: In 1989, private respondent Maria Victoria Lopez Tuason filed with the Regional Trial Court, Branch 149, Makati a petition for annulment or declaration of nullity of her marriage to petitioner Emilio R. Tuason. In her complaint, private respondent alleged that she and petitioner were married on June 3, 1972 and from this union, begot two children; that at the time of the marriage, petitioner was already psychologically incapacitated to comply with his essential marital obligations which became manifest afterward and resulted in violent fights between husband and wife; that in one of their fights, petitioner inflicted physical injuries on private respondent which impelled her to file a criminal case for physical injuries against him; that petitioner used prohibited drugs, was apprehended by the authorities and sentenced to a oneyear suspended penalty and has not been rehabilitated; that petitioner was a womanizer, and in 1984, he left the conjugal home and cohabited with three

women in succession, one of whom he presented to the public as his wife; that after he left the conjugal dwelling, petitioner gave minimal support to the family and even refused to pay for the tuition fees of their children compelling private respondent to accept donations and dole-outs from her family and friends; that petitioner likewise became a spendthrift and abused his administration of the conjugal partnership by alienating some of their assets and incurring large obligations with banks, credit card companies and other financial institutions, without private respondents consent; that attempts at reconciliation were made but they all failed because of petitioners refusal to reform. In addition to her prayer for annulment of marriage, private respondent prayed for powers of administration to save the conjugal properties from further dissipation.
[1]

Petitioner answered denying the imputations against him. As affirmative defense, he claimed that he and private respondent were a normal married couple during the first ten years of their marriage and actually begot two children during this period; that it was only in 1982 that they began to have serious personal differences when his wife did not accord the respect and dignity due him as a husband but treated him like a persona non grata; that due to the extreme animosities between them, he temporarily left the conjugal home for a cooling-off period in 1984; that it is private respondent who had been taking prohibited drugs and had a serious affair with another man; that petitioners work as owner and operator of a radio and television station exposed him to malicious gossip linking him to various women in media and the entertainment world; and 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 conjugal shares in exclusive golf and country clubs. Petitioner petitioned the court to allow him to return to the conjugal home and continue his administration of the conjugal partnership. After the issues were joined, trial commenced on March 30, 1990. Private respondent presented four witnesses, namely, herself; Dr. Samuel Wiley, a Canon Law expert and marriage counselor of both private respondent and petitioner; Ms. Adelita Prieto, a close friend of the spouses, and Any. Jose F. Racela IV, private respondents counsel. Private respondent likewise submitted documentary evidence consisting of newspaper articles of her husbands relationship with other women, his apprehension by the authorities for illegal possession of drugs; and copies of a prior church annulment decree. The parties marriage was clerically annulled by the Tribunal Metropolitanum Matrimoniale which was affirmed by the National Appellate Matrimonial Tribunal in 1986.
[2] [3]

During presentation of private respondents evidence, petitioner, on April 18, 1990, filed his Opposition to private respondents petition for appointment as administratrix of the conjugal partnership of gains. After private respondent rested her case, the trial court scheduled the reception of petitioners evidence on May 11, 1990. On May 8, 1990, two days before the scheduled hearing, a counsel for petitioner moved for a postponement on the ground that the principal counsel was out of the country and due to return on the first week of June. The court granted the motion and reset the hearing to June 8, 1990.
[4] [5]

On June 8, 1990, petitioner failed to appear. On oral motion of private respondent, the court declared petitioner to have waived his right to present evidence and deemed the case submitted for decision on the basis of the evidence presented. On June 29, 1990, the trial court rendered judgment declaring the nullity of private respondents marriage to petitioner and awarding custody of the children to private respondent. The court ruled: WHEREFORE, in view of the foregoing, the marriage contracted by Ma. Victoria L. Tuason and Emilio R. Tuason on June 3, 1972 is declared null and void oh initio on the ground of psychological incapacity on the part of the defendant under Sec. 36 of the Family Code. Let herein judgment of annulment be recorded in the registry of Mandaluyong, Metro Manila where the marriage was contracted and in the registry of Makati, Metro Manila where the marriage is annulled. The custody of the two (2) legitimate children of the plaintiff and the defendant is hereby awarded to the plaintiff. The foregoing judgment is without prejudice to the application of the other effects of annulment as provided for under Arts. 50 and 51 of the Family Code of the Philippines.
[6]

Counsel for petitioner received a copy of this decision on August 24, 1990. No appeal was taken from the decision. On September 24, 1990, private respondent filed a Motion for Dissolution of Conjugal Partnership of Gains and Adjudication to Plaintiff of the Conjugal Properties. Petitioner opposed the motion on October 17, 1990
[7] [8]

Also on the same day, October 17, 1990, petitioner, through new counsel, filed with the trial court a petition for relief from judgment of the June 29, 1990 decision.

The trial court denied the petition on August 8, 1991.

[9]

Petitioner appealed before the Court of Appeals the order of the trial court denying his petition for relief from judgment. On July 29, 1994, the Court of Appeals dismissed the appeal and affirmed the order of the trial court.
[10]

Hence this petition. The threshold issue is whether a petition for relief from judgment is warranted under the circumstances of the case. We rule in the negative. A petition for relief from judgment is governed by Rule 38, Section 2 of the Revised Rules of Court which provides: Section 2. Petition to Court of First Instance for relief from judgment or other proceedings thereof. - When a judgment or order is entered, or any other proceeding is taken, against a party in a court of first instance through fraud, accident, mistake, or excusable negligence, he may file a petition in such court and in the same cause praying that the judgment, order or proceeding be set aside. Under the rules, a final and executory judgment or order of the Regional Trial Court may be set aside on the ground of fraud, accident, mistake or excusable negligence. In addition, the petitioner must assert facts showing that he has a good, substantial and meritorious defense or cause of action. If the petition is granted, the court shall proceed to hear and determine the case as if a timely motion for new trial had been granted therein.
[11] [12]

In the case at bar, the decision annulling petitioners marriage to private respondent had already become final and executory when petitioner failed to appeal during the reglementary period. Petitioner however claims that the decision of the trial court was null and void for violation of his right to due process. He contends he was denied due process when, after failing to appear on two scheduled hearings, the trial court deemed him to have waived his right to present evidence and rendered judgment on the basis of the evidence for private respondent. Petitioner justifies his absence at the hearings on the ground that he was then confined for medical and/or rehabilitation reasons. In his affidavit of merit before the trial court, he attached a certification by Lt. Col. Plaridel F. Vidal, Director of the Narcotics Command, Drug Rehabilitation Center which states that on March 27, 1990 petitioner was admitted for treatment of drug dependency at the Drug Rehabilitation Center at Camp Bagong Diwa, Bicutan, Taguig, Metro Manila of the Philippine Constabulary-Integrated National Police. The records, however, show that the former counsel of petitioner did not inform the trial
[13] [14]

court of this confinement. And when the 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 taken therefrom.
[15]

The failure of petitioners counsel to notify him on time of the adverse judgment to enable him to appeal therefrom is negligence which is not excusable. Notice sent to counsel of record is binding upon the client and the neglect or failure of counsel to inform him of an adverse judgment resulting in the loss of his right to appeal is not a ground for setting aside a judgment valid and regular on its face.
[16]

Similarly inexcusable was the failure of his former counsel to inform the trial court of petitioners confinement and medical treatment as the reason for his non-appearance at the scheduled hearings. Petitioner has not given any reason why his former counsel, intentionally or unintentionally, did not inform the court of this fact. This led the trial court to order the case deemed submitted for decision on the basis of the evidence presented by the private respondent alone. To compound the negligence of petitioners counsel, the order of the trial court was never assailed via a motion for reconsideration. Clearly, petitioner cannot now claim that he was deprived of due process. He may have lost his right to present evidence but he was not denied his day in court. As the records show, petitioner, through counsel, actively participated in the proceedings below. He filed his answer to the petition, cross-examined private respondents witnesses and even submitted his opposition to private respondents motion for dissolution of the conjugal partnership of gains.
[17]

A petition for relief from judgment is an equitable remedy; it is allowed only in exceptional cases where there is no other available or adequate remedy. When a party has another remedy available to him, which may be either a motion for new trial or appeal from an adverse decision of the trial court, and he was not prevented by fraud, accident, mistake or excusable negligence from filing such motion or taking such appeal, he cannot avail himself of this petition. Indeed, relief will not be granted to a party who seeks avoidance from the effects of the judgment when the loss of the remedy at law was due to his own negligence; otherwise the petition for relief can be used to revive the right to appeal which had been lost thru inexcusable negligence.
[18] [19]

Petitioner also insists that he has a valid and meritorious defense. He cites the Family Code which provides that in actions for annulment of marriage or legal separation, the prosecuting officer should intervene for the state because the law looks with disfavor upon the haphazard declaration of annulment of marriages by default. He contends that when he failed to

appear at the scheduled hearings, the trial court should have ordered the prosecuting officer to intervene for the state and inquire as to the reason for his non-appearance.
[20]

Articles 48 and 60 of the Family Code read as follows: Art. 48. In all cases of annulment or declaration of absolute nullity of 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 between the parties and to take care that evidence is not fabricated or suppressed. In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment. xxx xxx xxx

Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment. 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 take care that the evidence is not fabricated or suppressed.
[21]

A grant of annulment of marriage or legal separation by default is fraught with the danger of collusion. Hence, in all cases for annulment, declaration of nullity of marriage and legal separation, the prosecuting attorney or fiscal is ordered to appear on behalf of the state for the purpose of preventing any collusion between the parties and to take care that their evidence is not fabricated or suppressed. If the defendant spouse fails to answer the complaint, the court cannot declare him or her in default but instead, should order the prosecuting attorney to determine if collusion exists between the parties. The prosecuting attorney or fiscal may oppose the application for legal separation or annulment through the presentation of his own evidence, if in his opinion, the proof adduced is dubious and fabricated. Our Constitution is committed to the policy of strengthening the family as a basic social institution. Our family law is based on the policy that marriage is not a mere contract, but a social institution in which the state is vitally interested. The state can find no stronger anchor than on good, solid and happy families. The break up of families weakens our social and moral fabric and, hence, their preservation is not the concern alone of the family members.
[22] [23] [24] [25]

The facts in the case at bar do not call for the strict application of Articles 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 noholds 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. Petitioners 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 nonintervention 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 respondents 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. Suffice it to state that the finding of the trial court as to the existence or non-existence of petitioners psychological incapacity at the time of the marriage is final and binding on us. Petitioner has not sufficiently shown that the trial courts factual findings and evaluation of the testimonies of private respondents witnesses vis-a-vis petitioners defenses are clearly and manifestly erroneous.
[26] [27]

IN VIEW WHEREOF, the petition is denied and the decision dated July 29, 1994 of the Court of Appeals in CA-G.R. CV No. 37925 is affirmed. SO ORDERED. Regalado (Chairman), Romero, and Mendoza, JJ., concur.

Torres, Jr., J., on leave.

SECOND DIVISION G.R. No. 145370 March 4, 2004

MARIETTA B. ANCHETA, petitioner, vs. RODOLFO S. ANCHETA, respondent. DECISION CALLEJO, SR., J.: This is a petition for review on certiorari of the Resolution 1 of the Court of Appeals in CA-G.R. SP No. 59550 which dismissed the petitioners petition under Rule 47 of the 1997 Rules of Civil Procedure to annul the Order2 of the Regional Trial Court of Naic, Cavite, Branch 15 in Special Proceedings No. NC-662 nullifying the marriage of the petitioner and the respondent Rodolfo S. Ancheta, and of the resolution of the appellate court denying the motion for reconsideration of the said resolution. This case arose from the following facts: After their marriage on March 5, 1959, the petitioner and the respondent resided in Muntinlupa, Metro Manila. They had eight children during their coverture, whose names and dates of births are as follows: a. ANA MARIE B . ANCHETA born October 6, 1959 b. RODOLFO B. ANCHETA, JR. born March 7, 1961 c. VENANCIO MARIANO B. ANCHETA born May 18, 1962 d. GERARDO B. ANCHETA born April 8, 1963 e. KATHRINA B. ANCHETA born October 29, 1965 f. ANTONIO B. ANCHETA born March 6, 1967 g. NATASHA MARTINA B. ANCHETA - born August 2, 1968 h. FRITZIE YOLANDA B. ANCHETA born November 19, 19703 On December 6, 1992, the respondent left the conjugal home and abandoned the petitioner and their children. On January 25, 1994, petitioner Marietta Ancheta filed a petition with the Regional Trial Court of Makati, Branch 40, against the respondent for the dissolution of their conjugal partnership and judicial separation of property with a plea for support and support pendente lite. The case was docketed as Sp. Proc. No. M-3735. At that time, the petitioner was renting a house at No. 72 CRM Avenue cor. CRM Corazon, BF Homes, Almanza, Las Pias, Metro Manila. 4

On April 20, 1994, the parties executed a Compromise Agreement 5 where some of the conjugal properties were adjudicated to the petitioner and her eight children, including the following: b. A parcel of land (adjoining the two lots covered by TCT Nos. 120082 and TCT No. 120083-Cavite) located at Bancal, Carmona, Cavite, registered in the name of the family Ancheta. Biofood Corporation under TCT No. 310882, together with the resort Munting Paraiso, Training Center, fourstorey building, pavilion, swimming pool and all improvements. All of the shares of stocks of Ancheta Biofoods Corporation were distributed one-third (1/3) to the petitioner and the eight children onetwelfth (1/12) each.6 The court rendered judgment based on the said compromise agreement. Conformably thereto, the respondent vacated, on June 1, 1994, the resort Munting Paraiso and all the buildings and improvements thereon. The petitioner, with the knowledge of the respondent, thenceforth resided in the said property. In the meantime, the respondent intended to marry again. On June 5, 1995, he filed a petition with the Regional Trial Court of Naic, Cavite, Branch 15, for the declaration of nullity of his marriage with the petitioner on the ground of psychological incapacity. The case was docketed as Sp. Proc. No. NC-662. Although the respondent knew that the petitioner was already residing at the resort Munting Paraiso in Bancal, Carmona, Cavite, he, nevertheless, alleged in his petition that the petitioner was residing at No. 72 CRM Avenue corner CRM Corazon, BF Homes, Almanza, Las Pias, Metro Manila, "where she may be served with summons." 7 The clerk of court issued summons to the petitioner at the address stated in the petition.8 The sheriff served the summons and a copy of the petition by substituted service on June 6, 1995 on the petitioners son, Venancio Mariano B. Ancheta III, at his residence in Bancal, Carmona, Cavite.9 On June 21, 1995, Sheriff Jose R. Salvadora, Jr. submitted a Return of Service to the court stating that the summons and a copy of the petition were served on the petitioner through her son Venancio Mariano B. Ancheta III on June 6, 1995: RETURN OF SERVICE This is to certify that the summons together with the copy of the complaint and its annexes was received by the herein defendant thru his son Venancio M.B. Ancheta [III] as evidenced by the signature appearing on the summons. Service was made on June 6, 1995. June 21, 1995, Naic, Cavite. (Sgd.) JOSE R. SALVADORA, JR. Sheriff10 The petitioner failed to file an answer to the petition. On June 22, 1995, the respondent filed an "ExParte Motion to Declare Defendant as in Default" setting it for hearing on June 27, 1995 at 8:30 a.m. During the hearing on the said date, there was no appearance for the petitioner. The public prosecutor appeared for the State and offered no objection to the motion of the respondent who appeared with counsel. The trial court granted the motion and declared the petitioner in default, and allowed the respondent to adduce evidence ex-parte. The respondent testified in his behalf and adduced documentary evidence. On July 7, 1995, the trial court issued an Order granting the petition and declaring the marriage of the parties void ab initio. 11 The clerk of court issued a Certificate of Finality of the Order of the court on July 16, 1996.12

On February 14, 1998, Valentines Day, the respondent and Teresita H. Rodil were married in civil rights before the municipal mayor of Indang, Cavite.13 On July 7, 2000, the petitioner filed a verified petition against the respondent with the Court of Appeals under Rule 47 of the Rules of Court, as amended, for the annulment of the order of the RTC of Cavite in Special Proceedings No. NC-662. The case was docketed as CA-G.R. SP No. 59550. The petitioner alleged, inter alia, that the respondent committed gross misrepresentations by making it appear in his petition in Sp. Proc. No. NC-662 that she was a resident of No. 72 CRM Avenue cor. CRM Corazon, BF Homes, Almanza, Las Pias, Metro Manila, when in truth and in fact, the respondent knew very well that she was residing at Munting Paraiso, Bancal, Carmona, Cavite. According to the petitioner, the respondent did so to deprive her of her right to be heard in the said case, and ultimately secure a favorable judgment without any opposition thereto. The petitioner also alleged that the respondent caused the service of the petition and summons on her by substituted service through her married son, Venancio Mariano B. Ancheta III, a resident of Bancal, Carmona, Cavite, where the respondent was a resident. Furthermore, Venancio M.B. Ancheta III failed to deliver to her the copy of the petition and summons. Thus, according to the petitioner, the order of the trial court in favor of the respondent was null and void (1) for lack of jurisdiction over her person; and (2) due to the extrinsic fraud perpetrated by the respondent. She further contended that there was no factual basis for the trial courts finding that she was suffering from psychological incapacity. Finally, the petitioner averred that she learned of the Order of the RTC only on January 11, 2000. Appended to the petition, inter alia, were the affidavits of the petitioner and of Venancio M.B. Ancheta III. The petitioner prayed that, after due proceedings, judgment be rendered in her favor, thus: WHEREFORE, petitioner respectfully prays this Honorable Court to render Judgment granting the Petition. 1. Declaring null and void the Order dated June 7, 1995 (of the Regional Trial Court, Branch 14, Naic, Cavite). 2. Ordering respondent to pay petitioner a. P1,000,000.00 as moral damages; b. P500,000.00 as exemplary damages; c. P200,000.00 as attorneys fees plus P7,500.00 per diem for every hearing; d. P100,000.00 as litigation expenses; e. Costs of suit.14 On July 13, 2000, the CA issued a Resolution dismissing the petition on the following ground: We cannot give due course to the present petition in default or in the absence of any clear and specific averment by petitioner that the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault of petitioner. Neither is there any averment or allegation that the present petition is based only on the grounds of extrinsic fraud and lack of jurisdiction. Nor yet that, on the assumption that extrinsic fraud can be a valid ground

therefor, that it was not availed of, or could not have been availed of, in a motion for new trial, or petition for relief.15 The petitioner filed a motion for the reconsideration of the said resolution, appending thereto an amended petition in which she alleged, inter alia, that: 4. This petition is based purely on the grounds of extrinsic fraud and lack of jurisdiction. 5. This petition has not prescribed; it was filed within the four-year period after discovery of the extrinsic fraud. 6. The ground of extrinsic fraud has not been availed of, or could not have been availed of in a motion for new trial or petition for relief. 7. The ground of lack of jurisdiction is not barred by laches and/or estoppel. 8. The ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies were no longer available through no fault of petitioner; neither has she ever availed of the said remedies. This petition is the only available remedy to her. 16 The petitioner also alleged therein that the order of the trial court nullifying her and the respondents marriage was null and void for the court a quos failure to order the public prosecutor to conduct an investigation on whether there was collusion between the parties, and to order the Solicitor General to appear for the State. On September 27, 2000, the CA issued a Resolution denying the said motion. The petitioner filed a petition for review on certiorari with this Court alleging that the CA erred as follows: 1. In failing to take into consideration the kind of Order which was sought to be annulled. 2. In finding that the Petition was procedurally flawed. 3. In not finding that the Petition substantially complied with the requirements of the Rules of Court. 4. In failing to comply with Section 5, Rule 47, Rules of Court. 5. In not even considering/resolving Petitioners Motion to Admit the Amended Petition; and in not admitting the Amended Petition. 6. In failing to apply the Rules of Procedure with liberality. 17 The petition is meritorious. An original action in the Court of Appeals under Rule 47 of the Rules of Court, as amended, to annul a judgment or final order or resolution in civil actions of the RTC may be based on two grounds: (a) extrinsic fraud; or (b) lack of jurisdiction. If based on extrinsic fraud, the remedy is subject to a condition precedent, namely, the ordinary remedies of new trial, appeal, petition for relief or other

appropriate remedies are no longer available through no fault of the petitioner. 18 The petitioner must allege in the petition that the ordinary remedies of new trial, appeal, petition for relief from judgment, under Rule 38 of the Rules of Court are no longer available through no fault of hers; otherwise, the petition will be dismissed. If the petitioner fails to avail of the remedies of new trial, appeal or relief from judgment through her own fault or negligence before filing her petition with the Court of Appeals, she cannot resort to the remedy under Rule 47 of the Rules; otherwise, she would benefit from her inaction or negligence. 19 It is not enough to allege in the petition that the said remedies were no longer available through no fault of her own. The petitioner must also explain and justify her failure to avail of such remedies. The safeguard was incorporated in the rule precisely to avoid abuse of the remedy. 20 Access to the courts is guaranteed. But there must be limits thereto. Once a litigants rights have been adjudicated in a valid final judgment of a competent court, he should not be granted an unbridled license to sue anew. The prevailing party should not be vexed by subsequent suits.21 In this case, the petitioner failed to allege in her petition in the CA that the ordinary remedies of new trial, appeal, and petition for relief, were no longer available through no fault of her own. She merely alleged therein that she received the assailed order of the trial court on January 11, 2000. The petitioners amended petition did not cure the fatal defect in her original petition, because although she admitted therein that she did not avail of the remedies of new trial, appeal or petition for relief from judgment, she did not explain why she failed to do so. We, however, rule that the Court of Appeals erred in dismissing the original petition and denying admission of the amended petition. This is so because apparently, the Court of Appeals failed to take note from the material allegations of the petition, that the petition was based not only on extrinsic fraud but also on lack of jurisdiction over the person of the petitioner, on her claim that the summons and the copy of the complaint in Sp. Proc. No. NC-662 were not served on her. While the original petition and amended petition did not state a cause of action for the nullification of the assailed order on the ground of extrinsic fraud, we rule, however, that it states a sufficient cause of action for the nullification of the assailed order on the ground of lack of jurisdiction of the RTC over the person of the petitioner, notwithstanding the absence of any allegation therein that the ordinary remedy of new trial or reconsideration, or appeal are no longer available through no fault of the petitioner. In a case where a petition for the annulment of a judgment or final order of the RTC filed under Rule 47 of the Rules of Court is grounded on lack of jurisdiction over the person of the defendant/respondent or over the nature or subject of the action, the petitioner need not allege in the petition that the ordinary remedy of new trial or reconsideration of the final order or judgment or appeal therefrom are no longer available through no fault of her own. This is so because a judgment rendered or final order issued by the RTC without jurisdiction is null and void and may be assailed any time either collaterally or in a direct action or by resisting such judgment or final order in any action or proceeding whenever it is invoked, 22 unless barred by laches.23 In this case, the original petition and the amended petition in the Court of Appeals, in light of the material averments therein, were based not only on extrinsic fraud, but also on lack of jurisdiction of the trial court over the person of the petitioner because of the failure of the sheriff to serve on her the summons and a copy of the complaint. She claimed that the summons and complaint were served on her son, Venancio Mariano B. Ancheta III, who, however, failed to give her the said summons and complaint.

Even a cursory reading of the material averments of the original petition and its annexes will show that it is, prima facie meritorious; hence, it should have been given due course by the Court of Appeals. In Paramount Insurance Corporation v. Japzon,24 we held that jurisdiction is acquired by a trial court over the person of the defendant either by his voluntary appearance in court and his submission to its authority or by service of summons. The service of summons and the complaint on the defendant is to inform him that a case has been filed against him and, thus, enable him to defend himself. He is, thus, put on guard as to the demands of the plaintiff or the petitioner. Without such service in the absence of a valid waiver renders the judgment of the court null and void. 25 Jurisdiction cannot be acquired by the court on the person of the defendant even if he knows of the case against him unless he is validly served with summons.26 Summons and complaint may be served on the defendant either by handing a copy thereof to him in person, or, if he refuses to receive and sign for it, by tendering it to her. 27 However, if there is impossibility of prompt service of the summons personally on the defendant despite diligent efforts to find him, service of the summons may be effected by substituted service as provided in Section 7, Rule 14 of the said Rules: SEC. 7. Substituted service. If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendants residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies of defendants office or regular place of business with some competent person in charge thereof. 28 In Miranda v. Court of Appeals,29 we held that the modes of service should be strictly followed in order that the court may acquire jurisdiction over the person of the defendant. Thus, it is only when a defendant cannot be served personally within a reasonable time that substituted service may be made by stating the efforts made to find him and personally serve on him the summons and complaint and the fact that such effort failed.30 This statement should be made in the proof of service to be accomplished and filed in court by the sheriff. This is necessary because substituted service is a derogation of the usual method of service. It has been held that substituted service of summons is a method extraordinary in character; hence, may be used only as prescribed and in the circumstances categorized by statutes.31 As gleaned from the petition and the amended petition in the CA and the annexes thereof, the summons in Sp. Proc. No. NC-662 was issued on June 6, 1995. 32 On the same day, the summons was served on and received by Venancio Mariano B. Ancheta III, 33 the petitioners son. When the return of summons was submitted to the court by the sheriff on June 21, 1995, no statement was made on the impossibility of locating the defendant therein within a reasonable time, or that any effort was made by the sheriff to locate the defendant. There was no mention therein that Venancio Mariano Ancheta III was residing at No. 72 CRM Avenue cor. CRM Corazon, BF Homes, Almanza, Las Pias, where the petitioner (defendant therein) was allegedly residing. It turned out that Venancio Mariano B. Ancheta III had been residing at Bancal, Carmona, Cavite, and that his father merely showed him the summons and the complaint and was made to affix his signature on the face of the summons; he was not furnished with a copy of the said summons and complaint. 4. From the time my father started staying at Munting Paraiso, Bancal, Carmona, Cavite, I have been residing on the adjoining land consisting of two (2) lots later apportioned to my father as his share of the conjugal partnership. Since then, I have been residing therein up to the present.

5. On June 6, 1995, at Bancal, Carmona, Cavite (at my residence situated on my fathers lot), my father came to see me and then asked me to sign and I did sign papers which he (my father) and the Sheriff did not allow me to read. Apparently, these papers are for the Summons to my mother in the case for annulment of marriage filed by my father against her. I was not given any copy of the Summons and/or copy of the complaint/petition. 34 We, thus, rule that the Court of Appeals acted arbitrarily in dismissing the original petition of the petitioner and the amended petition for annulment of the assailed order grounded on lack of jurisdiction over the person of the petitioner. The action in Rule 47 of the Rules of Court does not involve the merits of the final order of the trial court. However, we cannot but express alarm at what transpired in the court a quo as shown by the records. The records show that for the petitioners failure to file an answer to the complaint, the trial court granted the motion of the respondent herein to declare her in default. The public prosecutor condoned the acts of the trial court when he interposed no objection to the motion of the respondent. The trial court forthwith received the evidence of the respondent ex-parte and rendered judgment against the petitioner without a whimper of protest from the public prosecutor. The actuations of the trial court and the public prosecutor are in defiance of Article 48 of the Family Code, which reads: Article 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment.35 The trial court and the public prosecutor also ignored Rule 18, Section 6 of the 1985 Rules of Court (now Rule 9, Section 3[e] of the 1997 Rules of Civil Procedure) which provides: Sec. 6. No defaults in actions for annulment of marriage or for legal separation. If the defendant in an action for annulment of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exits, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated.36 In the case of Republic v. Court of Appeals,37 this Court laid down the guidelines in the interpretation and application of Art. 48 of the Family Code, one of which concerns the role of the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the State: (8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095. 38 This Court in the case of Malcampo-Sin v. Sin39 reiterated its pronouncement in Republic v. Court of Appeals,40regarding the role of the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the State.41 The trial court, abetted by the ineptitude, if not sheer negligence of the

public prosecutor, waylaid the Rules of Court and the Family Code, as well as the rulings of this Court. The task of protecting marriage as an inviolable social institution requires vigilant and zealous participation and not mere pro-forma compliance. The protection of marriage as a sacred institution requires not just the defense of a true and genuine union but the exposure of an invalid one as well. 42 A grant of annulment of marriage or legal separation by default is fraught with the danger of collusion. Hence, in all cases for annulment, declaration of nullity of marriage and legal separation, the prosecuting attorney or fiscal is ordered to appear on behalf of the State for the purpose of preventing any collusion between the parties and to take care that their evidence is not fabricated or suppressed. If the defendant-spouse fails to answer the complaint, the court cannot declare him or her in default but instead, should order the prosecuting attorney to determine if collusion exists between the parties. The prosecuting attorney or fiscal may oppose the application for legal separation or annulment through the presentation of his own evidence, if in his opinion, the proof adduced is dubious and fabricated. Our constitution is committed to the policy of strengthening the family as a basic social institution. Our family law is based on the policy that marriage is not a mere contract, but a social institution in which the State is vitally interested. The State can find no stronger anchor than on good, solid and happy families. The break-up of families weakens our social and moral fabric; hence, their preservation is not the concern of the family members alone. 43Whether or not a marriage should continue to exist or a family should stay together must not depend on the whims and caprices of only one party, who claims that the other suffers psychological imbalance, incapacitating such party to fulfill his or her marital duties and obligations. IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Resolutions of the Court of Appeals dated July 13, 2000 and September 27, 2000 in CA-G.R. SP No. 59550 are hereby SET ASIDE and REVERSED. Let the records of CA-G.R. SP No. 59550 be remanded to the Court of Appeals for further proceedings conformably with the Decision of this Court and Rule 47 of the Rules of Court, as amended. SO ORDERED. Quisumbing, (Acting Chairman), Austria-Martinez, and Tinga, JJ., concur. Puno, J., (Chairman), on leave. THIRD DIVISION G.R. No. 149498 May 20, 2004

REPUBLIC OF THE PHILIPPINES, petitioner, vs. LOLITA QUINTERO-HAMANO, respondent. DECISION CORONA, J.: Before us is a petition for review of the decision1 dated August 20, 2001 of the Court of Appeals2 affirming the decision3 dated August 28, 1997 of the Regional Trial Court of Rizal, Branch

72, declaring as null and void the marriage contracted between herein respondent Lolita M. Quintero-Hamano and her husband Toshio Hamano. On June 17, 1996, respondent Lolita Quintero-Hamano filed a complaint for declaration of nullity of her marriage to her husband Toshio Hamano, a Japanese national, on the ground of psychological incapacity. Respondent alleged that in October 1986, she and Toshio started a common-law relationship in Japan. They later lived in the Philippines for a month. Thereafter, Toshio went back to Japan and stayed there for half of 1987. On November 16, 1987, she gave birth to their child. On January 14, 1988, she and Toshio were married by Judge Isauro M. Balderia of the Municipal Trial Court of Bacoor, Cavite. Unknown to respondent, Toshio was psychologically incapacitated to assume his marital responsibilities, which incapacity became manifest only after the marriage. One month after their marriage, Toshio returned to Japan and promised to return by Christmas to celebrate the holidays with his family. After sending money to respondent for two months, Toshio stopped giving financial support. She wrote him several times but he never responded. Sometime in 1991, respondent learned from her friends that Toshio visited the Philippines but he did not bother to see her and their child. The summons issued to Toshio remained unserved because he was no longer residing at his given address. Consequently, on July 8, 1996, respondent filed an ex parte motion for leave to effect service of summons by publication. The trial court granted the motion on July 12, 1996. In August 1996, the summons, accompanied by a copy of the petition, was published in a newspaper of general circulation giving Toshio 15 days to file his answer. Because Toshio failed to file a responsive pleading after the lapse of 60 days from publication, respondent filed a motion dated November 5, 1996 to refer the case to the prosecutor for investigation. The trial court granted the motion on November 7, 1996. On November 20, 1996, prosecutor Rolando I. Gonzales filed a report finding that no collusion existed between the parties. He prayed that the Office of the Provincial Prosecutor be allowed to intervene to ensure that the evidence submitted was not fabricated. On February 13, 1997, the trial court granted respondents motion to present her evidence ex parte. She then testified on how Toshio abandoned his family. She thereafter offered documentary evidence to support her testimony. On August 28, 1997, the trial court rendered a decision, the dispositive portion of which read: WHEREFORE, premises considered, the marriage between petitioner Lolita M. QuinteroHamano and Toshio Hamano, is hereby declared NULL and VOID. The Civil Register of Bacoor, Cavite and the National Statistics Office are ordered to make proper entries into the records of the afore-named parties pursuant to this judgment of the Court. SO ORDERED.4 In declaring the nullity of the marriage on the ground of Toshios psychological incapacity, the trial court held that:

It is clear from the records of the case that respondent spouses failed to fulfill his obligations as husband of the petitioner and father to his daughter. Respondent remained irresponsible and unconcerned over the needs and welfare of his family. Such indifference, to the mind of the Court, is a clear manifestation of insensitivity and lack of respect for his wife and child which characterizes a very immature person. Certainly, such behavior could be traced to respondents mental incapacity and disability of entering into marital life. 5 The Office of the Solicitor General, representing herein petitioner Republic of the Philippines, appealed to the Court of Appeals but the same was denied in a decision dated August 28, 1997, the dispositive portion of which read: WHEREFORE, in view of the foregoing, and pursuant to applicable law and jurisprudence on the matter and evidence on hand, judgment is hereby rendered denying the instant appeal. The decision of the court a quo is AFFIRMED. No costs. SO ORDERED.6 The appellate court found that Toshio left respondent and their daughter a month after the celebration of the marriage, and returned to Japan with the promise to support his family and take steps to make them Japanese citizens. But except for two months, he never sent any support to nor communicated with them despite the letters respondent sent. He even visited the Philippines but he did not bother to see them. Respondent, on the other hand, exerted all efforts to contact Toshio, to no avail. The appellate court thus concluded that respondent was psychologically incapacitated to perform his marital obligations to his family, and to "observe mutual love, respect and fidelity, and render mutual help and support" pursuant to Article 68 of the Family Code of the Philippines. The appellate court rhetorically asked: But what is there to preserve when the other spouse is an unwilling party to the cohesion and creation of a family as a social inviolable institution? Why should petitioner be made to suffer in a marriage where the other spouse is not around and worse, left them without even helping them cope up with family life and assist in the upbringing of their daughter as required under Articles 68 to 71 of the Family Code? 7 The appellate court emphasized that this case could not be equated with Republic vs. Court of Appeals and Molina8 and Santos vs. Court of Appeals.9 In those cases, the spouses were Filipinos while this case involved a "mixed marriage," the husband being a Japanese national. Hence, this appeal by petitioner Republic based on this lone assignment of error: I The Court of Appeals erred in holding that respondent was able to prove the psychological incapacity of Toshio Hamano to perform his marital obligations, despite respondents failure to comply with the guidelines laid down in the Molina case.10 According to petitioner, mere abandonment by Toshio of his family and his insensitivity to them did not automatically constitute psychological incapacity. His behavior merely indicated simple inadequacy in the personality of a spouse falling short of reasonable expectations. Respondent

failed to prove any severe and incurable personality disorder on the part of Toshio, in accordance with the guidelines set in Molina. The Office of the Public Attorney, representing respondent, reiterated the ruling of the courts a quo and sought the denial of the instant petition. We rule in favor of petitioner. The Court is mindful of the policy of the 1987 Constitution to protect and strengthen the family as the basic autonomous social institution and marriage as the foundation of the family. 11 Thus, any doubt should be resolved in favor of the validity of the marriage. 12 Respondent seeks to annul her marriage with Toshio on the ground of psychological incapacity. Article 36 of the Family Code of the Philippines provides that: Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. In Molina, we came up with the following guidelines in the interpretation and application of Article 36 for the guidance of the bench and the bar: (1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish the validity of marriage and unity of the family. x x x (2) The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological - not physical, although its manifestations and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or psychically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle of ejusdem generis (Salita vs. Magtolis, 233 SCRA 100, June 13, 1994), nevertheless such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists. (3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage. The evidence must show that the illness was existing when the parties exchanged their "I dos." The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto. (4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses of children and prescribing medicine to cure them but

may not be psychologically capacitated to procreate, bear and raise his/her own children as an essential obligation of marriage. (5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, "mild characteriological peculiarities, mood changes, occasional emotional outbursts" cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage. (6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision. (7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. x x x (8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The SolicitorGeneral, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor-General shall discharge the equivalent function of the defensor vinculicontemplated under Canon 1095.13 (emphasis supplied) The guidelines incorporate the three basic requirements earlier mandated by the Court in Santos: "psychological incapacity must be characterized by (a) gravity (b) juridical antecedence and (c) incurability."14 The foregoing guidelines do not require that a physician examine the person to be declared psychologically incapacitated. In fact, the root cause may be "medically or clinically identified." What is important is the presence of evidence that can adequately establish the partys psychological condition. For indeed, if the totality of evidence presented is enough to sustain a finding of psychological incapacity, then actual medical examination of the person concerned need not be resorted to.15 We now proceed to determine whether respondent successfully proved Toshios psychological incapacity to fulfill his marital responsibilities. Petitioner showed that Toshio failed to meet his duty to live with, care for and support his family. He abandoned them a month after his marriage to respondent. Respondent sent him several letters but he never replied. He made a trip to the Philippines but did not care at all to see his family. We find that the totality of evidence presented fell short of proving that Toshio was psychologically incapacitated to assume his marital responsibilities. Toshios act of abandonment was doubtlessly irresponsible but it was never alleged nor proven to be due to some kind of psychological illness. After respondent testified on how Toshio abandoned his family, no other evidence was presented showing that his behavior was caused by a psychological disorder. Although, as a rule, there was no need for an actual medical examination, it would have greatly helped respondents case had she

presented evidence that medically or clinically identified his illness. This could have been done through an expert witness. This respondent did not do. We must remember that abandonment is also a ground for legal separation. 16 There was no showing that the case at bar was not just an instance of abandonment in the context of legal separation. We cannot presume psychological defect from the mere fact that Toshio abandoned his family immediately after the celebration of the marriage. As we ruled in Molina, it is not enough to prove that a spouse failed to meet his responsibility and duty as a married person; it is essential that he must be shown to be incapable of doing so due to some psychological, not physical, illness.17 There was no proof of a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates a person from accepting and complying with the obligations essential to marriage. 18 According to the appellate court, the requirements in Molina and Santos do not apply here because the present case involves a "mixed marriage," the husband being a Japanese national. We disagree. In proving psychological incapacity, we find no distinction between an alien spouse and a Filipino spouse. We cannot be lenient in the application of the rules merely because the spouse alleged to be psychologically incapacitated happens to be a foreign national. The medical and clinical rules to determine psychological incapacity were formulated on the basis of studies of human behavior in general. Hence, the norms used for determining psychological incapacity should apply to any person regardless of nationality. In Pesca vs. Pesca,19 this Court declared that marriage is an inviolable social institution that the State cherishes and protects. While we commiserate with respondent, terminating her marriage to her husband may not necessarily be the fitting denouement. WHEREFORE, the petition for review is hereby GRANTED. The decision dated August 28, 1997 of the Court of Appeals is hereby REVERSED and SET ASIDE. SO ORDERED. Vitug, Sandoval-Gutierrez, and Carpio-Morales, JJ., concur.

EN BANC

G.R. No. L-30977 January 31, 1972 CARMEN LAPUZ SY, represented by her substitute MACARIO LAPUZ, petitioner-appellant, vs. EUFEMIO S. EUFEMIO alias EUFEMIO SY UY, respondent-appellee. Jose W. Diokno for petitioner-appellant. D. G. Eufemio for respondent-appellee.

REYES J.B.L., J.:p Petition, filed after the effectivity of Republic Act 5440, for review by certiorari of an order, dated 29 July 1969, of the Juvenile and Domestic Relations Court of Manila, in its Civil Case No. 20387, dismissing said case for legal separation on the ground that the death of the therein plaintiff, Carmen O. Lapuz Sy, which occurred during the pendency of the case, abated the cause of action as well as the action itself. The dismissal order was issued over the objection of Macario Lapuz, the heir of the deceased plaintiff (and petitioner herein) who sought to substitute the deceased and to have the case prosecuted to final judgment. On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal separation against Eufemio S. Eufemio, alleging, in the main, that they were married civilly on 21 September 1934 and canonically on 30 September 1934; that they had lived together as husband and wife continuously until 1943 when her husband abandoned her; that they had no child; that they acquired properties during their marriage; and that she discovered her husband cohabiting with a Chinese woman named Go Hiok at 1319 Sisa Street, Manila, on or about March 1949. She prayed for the issuance of a decree of legal separation, which, among others, would order that the defendant Eufemio S. Eufemio should be deprived of his share of the conjugal partnership profits. In his second amended answer to the petition, herein respondent Eufemio S. Eufemio alleged affirmative and special defenses, and, along with several other claims involving money and other properties, counter-claimed for the declaration of nullity ab initio of his marriage with Carmen O. Lapuz Sy, on the ground of his prior and subsisting marriage, celebrated according to Chinese law and customs, with one Go Hiok, alias Ngo Hiok. Issues having been joined, trial proceeded and the parties adduced their respective evidence. But before the trial could be completed (the respondent was already scheduled to present surrebuttal evidence on 9 and 18 June 1969), petitioner Carmen O. Lapuz Sy died in a vehicular accident on 31 May 1969. Counsel for petitioner duly notified the court of her death. On 9 June 1969, respondent Eufemio moved to dismiss the "petition for legal separation" 1 on two (2) grounds, namely: that the petition for legal separation was filed beyond the one-year period provided for in Article 102 of the Civil Code; and that the death of Carmen abated the action for legal separation. On 26 June 1969, counsel for deceased petitioner moved to substitute the deceased Carmen by her father, Macario Lapuz. Counsel for Eufemio opposed the motion. On 29 July 1969, the court issued the order under review, dismissing the case. 2 In the body of the order, the court stated that the motion to dismiss and the motion for substitution had to be resolved on the question of whether or not the plaintiff's cause of action has survived, which the court resolved in the negative. Petitioner's moved to reconsider but the motion was denied on 15 September 1969. After first securing an extension of time to file a petition for review of the order of dismissal issued by the juvenile and domestic relations court, the petitioner filed the present petition on 14 October 1969. The same was given due course and answer thereto was filed by respondent, who prayed for the affirmance of the said order. 3

Although the defendant below, the herein respondent Eufemio S. Eufemio, filed counterclaims, he did not pursue them after the court below dismissed the case. He acquiesced in the dismissal of said counterclaims by praying for the affirmance of the order that dismissed not only the petition for legal separation but also his counterclaim to declare the Eufemio-Lapuz marriage to be null and void ab initio. But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute for the lower court did not act on the motion for substitution) stated the principal issue to be as follows: When an action for legal separation is converted by the counterclaim into one for a declaration of nullity of a marriage, does the death of a party abate the proceedings? The issue as framed by petitioner injects into it a supposed conversion of a legal separation suit to one for declaration of nullity of a marriage, which is without basis, for even petitioner asserted that "the respondent has acquiesced to the dismissal of his counterclaim" (Petitioner's Brief, page 22). Not only this. The petition for legal separation and the counterclaim to declare the nullity of the self same marriage can stand independent and separate adjudication. They are not inseparable nor was the action for legal separation converted into one for a declaration of nullity by the counterclaim, for legal separation pre-supposes a valid marriage, while the petition for nullity has a voidable marriage as a pre-condition. The first real issue in this case is: Does the death of the plaintiff before final decree, in an action for legal separation, abate the action? If it does, will abatement also apply if the action involves property rights? . An action for legal separation which involves nothing more than the bed-and-board separation of the spouses (there being no absolute divorce in this jurisdiction) is purely personal. The Civil Code of the Philippines recognizes this in its Article 100, by allowing only the innocent spouse (and no one else) to claim legal separation; and in its Article 108, by providing that the spouses can, by their reconciliation, stop or abate the proceedings and even rescind a decree of legal separation already rendered. Being personal in character, it follows that the death of one party to the action causes the death of the action itself actio personalis moritur cum persona.
... When one of the spouses is dead, there is no need for divorce, because the marriage is dissolved. The heirs cannot even continue the suit, if the death of the spouse takes place during the course of the suit (Article 244, Section 3). The action is absolutely dead (Cass., July 27, 1871, D. 71. 1. 81; Cass. req., May 8, 1933, D. H. 1933, 332.") 4 . Marriage is a personal relation or status, created under the sanction of law, and an action for divorce is a proceeding brought for the purpose of effecting a dissolution of that relation. The action is one of a personal nature. In the absence of a statute to the contrary, the death of one of the parties to such action abates the action, for the reason that death has settled the question of separation beyond all controversy and deprived the court of jurisdiction, both over the persons of the parties to the action and of the subjectmatter of the action itself. For this reason the courts are almost unanimous in holding that the death of either party to a divorce proceeding, before final decree, abates the action. 1 Corpus Juris, 208; Wren v. Moss, 2 Gilman, 72; Danforth v. Danforth, 111 Ill. 236; Matter of Grandall, 196 N.Y. 127, 89 N.E. 578; 134 Am St. Rep. 830; 17 Ann. Cas. 874; Wilcon v. Wilson, 73 Mich, 620, 41 N.W. 817; Strickland v. Strickland, 80 Ark. 452, 97 S. W. 659; McCurley v. McCurley, 60 Md. 185, 45 Am. Rep. 717; Begbie v. Begbie, 128 Cal. 155, 60 Pac. 667, 49 L.R.A. 141. 5

The same rule is true of causes of action and suits for separation and maintenance (Johnson vs. Bates, Ark. 101 SW 412; 1 Corpus Juris 208). A review of the resulting changes in property relations between spouses shows that they are solely the effect of the decree of legal separation; hence, they can not survive the death of the plaintiff if it occurs prior to the decree. On the point, Article 106 of the Civil Code provides: . Art. 106. The decree of legal separation shall have the following effects: (1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed; . (2) The conjugal partnership of gains or the absolute conjugal community of property shall be dissolved and liquidated, but the offending spouse shall have no right to any share of the profits earned by the partnership or community, without prejudice to the provisions of article 176; (3) The custody of the minor children shall be awarded to the innocent spouse, unless otherwise directed by the court in the interest of said minors, for whom said court may appoint a guardian; (4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent one shall be revoked by operation of law. From this article it is apparent that the right to the dissolution of the conjugal partnership of gains (or of the absolute community of property), the loss of right by the offending spouse to any share of the profits earned by the partnership or community, or his disqualification to inherit by intestacy from the innocent spouse as well as the revocation of testamentary provisions in favor of the offending spouse made by the innocent one, are all rights and disabilities that, by the very terms of the Civil Code article, are vested exclusively in the persons of the spouses; and by their nature and intent, such claims and disabilities are difficult to conceive as assignable or transmissible. Hence, a claim to said rights is not a claim that "is not thereby extinguished" after a party dies, under Section 17, Rule 3, of the Rules of Court, to warrant continuation of the action through a substitute of the deceased party. Sec. 17. Death of party. After a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal representative of the deceased to appear and to be substituted for the deceased, within a period of thirty (30) days, or within such time as may be granted... The same result flows from a consideration of the enumeration of the actions that survive for or against administrators in Section 1, Rule 87, of the Revised Rules of Court: SECTION 1. Actions which may and which may not be brought against executor or administrator. No action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator; but actions to recover real or personal property, or an interest therein, from the estate, or to enforce a lien thereon, and actions to recover damages for an injury to person or property, real or personal, may be commenced against him.

Neither actions for legal separation or for annulment of marriage can be deemed fairly included in the enumeration.. A further reason why an action for legal separation is abated by the death of the plaintiff, even if property rights are involved, is that these rights are mere effects of decree of separation, their source being the decree itself; without the decree such rights do not come into existence, so that before the finality of a decree, these claims are merely rights in expectation. If death supervenes during the pendency of the action, no decree can be forthcoming, death producing a more radical and definitive separation; and the expected consequential rights and claims would necessarily remain unborn. As to the petition of respondent-appellee Eufemio for a declaration of nullity ab initio of his marriage to Carmen Lapuz, it is apparent that such action became moot and academic upon the death of the latter, and there could be no further interest in continuing the same after her demise, that automatically dissolved the questioned union. Any property rights acquired by either party as a result of Article 144 of the Civil Code of the Philippines 6 could be resolved and determined in a proper action for partition by either the appellee or by the heirs of the appellant. In fact, even if the bigamous marriage had not been void ab initio but only voidable under Article 83, paragraph 2, of the Civil Code, because the second marriage had been contracted with the first wife having been an absentee for seven consecutive years, or when she had been generally believed dead, still the action for annulment became extinguished as soon as one of the three persons involved had died, as provided in Article 87, paragraph 2, of the Code, requiring that the action for annulment should be brought during the lifetime of any one of the parties involved. And furthermore, the liquidation of any conjugal partnership that might have resulted from such voidable marriage must be carried out "in the testate or intestate proceedings of the deceased spouse", as expressly provided in Section 2 of the Revised Rule 73, and not in the annulment proceeding. ACCORDINGLY, the appealed judgment of the Manila Court of Juvenile and Domestic Relations is hereby affirmed. No special pronouncement as to costs. Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo, Villamor and Makasiar, JJ., concur. EN BANC G.R. No. L-13553 February 23, 1960

JOSE DE OCAMPO, petitioner, vs. SERAFINA FLORENCIANO, respondent. Joselito J. Coloma for petitioner. BENGZON, J.: Action for legal separation by Jose de Ocampo against his wife Serafina, on the ground of adultery. The court of first instance of Nueva Ecija dismissed it. The Court of Appeals affirmed, holding there was confession of judgment, plus condonation or consent to the adultery and prescription. We granted certiorari to consider the application of articles 100 and 101 of the New Civil Code, which for convenience are quoted herewith:

ART. 100.The legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. Where both spouses are offenders, a legal separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition. ART. 101.No decree of legal separation shall be promulgated upon a stipulation of facts or by confession of judgment. In case of non-appearance of the defendant, the court shall order the prosecuting attorney to inquire whether or not a collusion between the parties exists. If there is no collusion, the prosecuting attorney shall intervene for the State in order to take care that the evidence for the plaintiff is not fabricated. The record shows that on July 5, 1955, the complaint for legal separation was filed. As amended, it described their marriage performed in 1938, and the commission of adultery by Serafina, in March 1951 with Jose Arcalas, and in June 1955 with Nelson Orzame. Because the defendant made no answer, the court defaulted her, and pursuant to Art. 101 above, directed the provincial fiscal to investigate whether or not collusion existed between the parties. The fiscal examined the defendant under oath, and then reported to the Court that there was no collusion. The plaintiff presented his evidence consisting of the testimony of Vicente Medina, Ernesto de Ocampo, Cesar Enriquez, Mateo Damo, Jose de Ocampo and Capt. Serafin Gubat. According to the Court of Appeals, the evidence thus presented shows that "plaintiff and defendant were married in April 5, 1938 by a religious ceremony in Guimba, Nueva Ecija, and had lived thereafter as husband and wife. They begot several children who are now living with plaintiff. In March, 1951, plaintiff discovered on several occasions that his wife was betraying his trust by maintaining illicit relations with one Jose Arcalas. Having found the defendant carrying marital relations with another man plaintiff sent her to Manila in June 1951 to study beauty culture, where she stayed for one year. Again, plaintiff discovered that while in the said city defendant was going out with several other men, aside from Jose Arcalas. Towards the end of June, 1952, when defendant had finished studying her course, she left plaintiff and since then they had lived separately. "On June 18, 1955, plaintiff surprised his wife in the act of having illicit relations with another man by the name of Nelson Orzame. Plaintiff signified his intention of filing a petition for legal separation, to which defendant manifested her conformity provided she is not charged with adultery in a criminal action. Accordingly, plaintiff filed on July 5, 1955, a petition for legal separation." The Court of Appeals held that the husband's right to legal separation on account of the defendant's adultery with Jose Arcalas had prescribed, because his action was not filed within one year from March 1951 when plaintiff discovered her infidelity. (Art. 102, New Civil Code) We must agree with the Court of Appeals on this point.1 As to the adultery with Nelson Orzame, the appellate court found that in the night of June 18, 1955, the husband upon discovering the illicit connection, expressed his wish to file a petition for legal separation and defendant readily agreed to such filing. And when she was questioned by the Fiscal upon orders of the court, she reiterated her conformity to the legal separation even as she admitted having had sexual relations with Nelson Orzame. Interpreting these facts virtually to mean a confession of judgment the Appellate Court declared that under Art. 101, legal separation could not be decreed.

As we understand the article, it does not exclude, as evidence, any admission or confession made by the defendant outside of the court. It merely prohibits a decree of separation upon a confession of judgment. Confession of judgment usually happens when the defendant appears in court and confesses the right of plaintiff to judgment or files a pleading expressly agreeing to the plaintiff's demand.2 This is not occur. Yet, even supposing that the above statement of defendant constituted practically a confession of judgment, inasmuch as there is evidence of the adultery independently of such statement, the decree may and should be granted, since it would not be based on her confession, but upon evidence presented by the plaintiff. What the law prohibits is a judgment based exclusively or mainly on defendant's confession. If a confession defeats the action ipso facto, any defendant who opposes the separation will immediately confess judgment, purposely to prevent it. The mere circumstance that defendants told the Fiscal that she "like also" to be legally separated from her husband, is no obstacle to the successful prosecution of the action. When she refused to answer the complaint, she indicated her willingness to be separated. Yet, the law does not order the dismissal. Allowing the proceeding to continue, it takes precautions against collusion, which implies more than consent or lack of opposition to the agreement. Needless to say, when the court is informed that defendant equally desires the separation and admitted the commission of the offense, it should be doubly careful lest a collusion exists. (The Court of Appeals did not find collusion.) Collusion in divorce or legal separation means the agreement. . . . between husband and wife for one of them to commit, or to appear to commit, or to be represented in court as having committed, a matrimonial offense, or to suppress evidence of a valid defense, for the purpose of enabling the other to obtain a divorce. This agreement, if not express, may be implied from the acts of the parties. It is a ground for denying the divorce. (Griffiths vs. Griffiths, 69 N. J. Eq. 689 60 Atl. 1099; Sandoz vs. Sandoz, 107 Ore. 282, 214 Pas. 590.). In this case, there would be collusion if the parties had arranged to make it appear that a matrimonial offense had been committed although it was not, or if the parties had connived to bring about a legal separation even in the absence of grounds therefor. Here, the offense of adultery had really taking place, according to the evidence. The defendant could not havefalsely told the adulterous acts to the Fiscal, because her story might send her to jail the moment her husband requests the Fiscal to prosecute. She could not have practiced deception at such a personal risk. In this connection, it has been held that collusion may not be inferred from the mere fact that the guilty party confesses to the offense and thus enables the other party to procure evidence necessary to prove it. (Williams vs. Williams, [N. Y.] 40 N. E. (2d) 1017; Rosenweig vs. Rosenweig, 246 N. Y. Suppl. 231; Conyers, vs. Conyers, 224 S. W. [2d] 688.). And proof that the defendant desires the divorce and makes no defense, is not by itself collusion. (Pohlman vs. Pohlman, [N. J.] 46 Atl. Rep. 658.). We do not think plaintiff's failure actively to search for defendant and take her home (after the latter had left him in 1952) constituted condonation or consent to her adulterous relations with Orzame. It

will be remembered that she "left" him after having sinned with Arcalas and after he had discovered her dates with other men. Consequently, it was not his duty to search for her to bring her home. Hers was the obligation to return. Two decisions3 are cited wherein from apparently similar circumstances, this Court inferred the husband's consent to or condonation of his wife's misconduct. However, upon careful examination, a vital difference will be found: in both instances, the husband had abandoned his wife; here it was the wife who "left" her husband. Wherefore, finding no obstacles to the aggrieved husband's petition we hereby reverse the appealed decision and decree a legal separation between these spouse, all the consequent effects. Costs of all instances against Serafina Florenciano. So ordered. Paras, C. J., Padilla, Montemayor, Labrador, Concepcion, Reyes, J. B. L., Endencia, Barrera, and Gutierrez David, JJ., concur. FIRST DIVISION

G.R. No. L-33352 December 20, 1974 TEODORO E. LERMA, petitioner, vs. THE HONORABLE COURT OF APPEALS and CONCEPCION DIAZ, respondents. Salonga, Ordoez, Yap, Parlade & Associates for petitioner. Villareal, Matic & Associates for private respondent.

MAKALINTAL, C.J.:p Before Us for resolution are: (1) the petition for review by certiorari filed by Teodoro E. Lerma on March 21, 1971 to set aside the resolution of the respondent Court of Appeals in CA-G.R. No. 44906-R dismissing his petition for certiorari and prohibition with preliminary injunction filed therein; and (2) the petitioner's motion for reconsideration of our resolution dated February 8, 1974 denying his urgent motion for the issuance of a writ of preliminary injunction and/or restraining order to enjoin the enforcement of certain orders of the Juvenile and Domestic Relations Court of Quezon City (hereinafter referred to as the lower court) ordering the petitioner to pay support pendente lite to Concepcion Diaz, the private respondent herein. Petitioner Lerma and respondent Diaz are husband and wife. They married on May 19, 1951. On August 22, 1969 the petitioner filed a complaint for adultery against the respondent and a certain Teodoro Ramirez (Crim. Case No. 0519 of the Court of First Instance of Rizal). On November 18, 1969 the respondent filed with the lower court, presided by Judge Leonor Ines Luciano, a complaint 1 against the petitioner for legal separation and/or separation of properties, custody of their children 2 and support, with an urgent petition for support pendente lite for her and their youngest son, Gregory, who was then and until now is in her custody. The respondent's complaint for legal separation is based on two grounds: concubinage and attempt against her life.

The petitioner filed his opposition to the respondent's application for support pendente lite, setting up as defense the adultery charge he had filed against the respondent. Judge Luciano granted the respondent's application for support pendente lite in an order dated December 24, 1969, which she amended in an order dated February 15, 1970 to the following effect: (1) the respondent was declared entitled to support pendente lite from the date of the filing of the complaint; and (2) the amount of such monthly support was reduced from P2,250.00 to P1,820.00. On March 12, 1970 the petitioner filed with respondent Court of Appeals a petition for certiorari and prohibition with preliminary injunction to annul the aforementioned orders on the ground that they were issued with grave abuse of discretion. The next day the respondent court gave due course to the petition and issued a writ of preliminary injunction to stop Judge Luciano from enforcing said orders. The respondent court, in its decision of October 8, 1970, set aside the assailed orders and granted the petitioner an opportunity to present evidence before the lower court in support of his defense against the application for support pendente lite. The respondent moved to reconsider the decision on the ground that the petitioner had not asked that he be allowed to present evidence in the lower court. The respondent court, in its resolution of January 20, 1971, set aside the decision of October 8 and rendered another, dismissing the petition. This is now the subject of the instant proceeding for review. On January 23, 1974 the petitioner filed an urgent motion for a writ of preliminary injunction and/or restraining order, alleging (1) that during the pendency of this appeal and until December 5, 1973 the respondent had never sought the enforcement of the assailed orders of the lower court granting support pendente lite; (2) that on December 5, 1973 the respondent filed with the lower court an urgent motion praying that the petitioner be ordered to pay the awarded support pendente lite, both current and in arrears, on the ground that in the absence of an injunction from this Court the assailed orders should be executed; (3) that the petitioner filed his opposition to the motion, pointing out that for the previous three years the respondent did not ask for the enforcement of the orders and her belated move came only "after petitioner had filed new adultery charges against her and her second paramour" and after the petitioner had sought custody of their son Gregory; (4) that in connection with the first adultery charge, the respondent and her co-accused, Teddy Ramirez, had been convicted by the Court of First Instance of Rizal in its decision rendered on September 26, 1972 and said judgment of conviction was pending appeal in the Court of Appeals; (5) that Judge Luciano issued an order dated January 19, 1974, ordering the petitioner to pay the respondent the awarded support pendente lite within 15 days; and (6) that unless the lower court was enjoined from enforcing its assailed orders, the present petition would be rendered moot and academic, to the prejudice of the petitioner. On January 28, 1974 this Court, acting on the petitioner's motion, resolved "to issue a temporary restraining order effective immediately and until further orders from this Court." The order was addressed to Judge Luciano, her agents and representatives. Required to comment on the petitioner's urgent motion for preliminary injunction, the respondent filed an opposition, with a prayer for the immediate lifting of the temporary restraining order issued exparte. The opposition reiterated the grounds of her motion dated December 5, 1973 filed in the lower court, to wit: (1) that an order granting support pendente lite, although interlocutory, is immediately executory even if appealed, unless enjoined; (2) that the dismissal of the petition by the respondent Court of Appeals rendered functus oficio the writ of preliminary injunction it had previously issued; and (3) that under Article 292 of the New Civil Code, which provides that "during the proceedings for

legal separation, or for annulment of marriage, the spouses and children shall be supported from the conjugal partnership property ...," such support is mandatory even if there be a showing that the wife is guilty of adultery. In a minute resolution dated February 8, 1974 We denied the petitioner's urgent motion for a writ of preliminary injunction. On February 28, 1974 the petitioner filed this instant motion for reconsideration. On March 6, 1974 We issued another resolution setting aside the resolution of February 8, 1974 and reinstated the temporary restraining order previously issued until further orders. On the same day the respondent filed her opposition to the motion for reconsideration and later asked that it be set for oral argument. The petitioner's pending motion was set for hearing on April 22, 1974 and then reset for May 20, 1974. On the latter date counsel for both parties appeared. In lieu, however, of oral argument the Court allowed them to file memoranda. The petition assails the resolution of the respondent Court of Appeals on two main grounds: I. IT IS ERROR FOR THE COURT OF APPEALS TO HOLD THAT THE LOWER COURT, IN GRANTING SUPPORT PENDENTE LITE TO RESPONDENT CONCEPCION DIAZ, DID NOT COMMIT A GRAVE ABUSE OF DISCRETION. II. THE COURT OF APPEALS ERRED IN HOLDING THAT THE PROVISIONS OF ARTICLE 292 OF THE CIVIL CODE MAKE IT MANDATORY DURING THE PENDENCY OF LEGAL SEPARATION PROCEEDINGS TO GRANT SUPPORT PENDENTE LITE TO HEREIN RESPONDENT. The foregoing alleged errors refer to the two aspects, procedural and substantive, of the disputed orders granting support pendente lite. As correctly stated by the respondent court in its decision (which was later reconsidered in its resolution under review), the procedural law on support pendente lite is Rule 61 of the Revised Rules of Court, specifically Section 5 thereof, which partly provides: The court shall determine provisionally the pertinent facts, and shall render such order as equity and justice may require, having due regard to the necessities of the applicant, the means of the adverse party, the probable outcome of the case, and such other circumstances as may aid in the proper elucidation of the questions involved. ... The petitioner maintains that the above-quoted provision was disregarded by the lower court when it issued the disputed orders without provisionally determining the pertinent facts of the case, particularly insofar as they might have a bearing on its probable outcome, merely relying on the bare allegations of the complaint. The petitioner also claims he was deprived of the opportunity to present evidence in support of his defense of adultery against the respondent's application for support pendente lite. The question of whether or not the petitioner should be allowed to present evidence in the lower court in support of that his wife had committed adultery has become academic. The petitioner, in his motion filed February 28, 1974 for reconsideration of the denial by this Court of his petition for preliminary injunction, manifested that on September 26, 1972 the court of First Instance of Rizal decided the adultery case of the respondent and found her and her co-accused, Teodoro Ramirez, guilty of the charge, sentencing them to a term of imprisonment. This has not been denied by the respondent. Neither is it denied that on March 30, 1970, as a result of the adulterous relations with Teodoro Ramirez for which she was later on convicted, the said respondent gave birth prematurely

to a baby boy, who however died the same day. When the respondent entered the hospital for delivery, she registered under the assumed name of "Gloria Santos," and when the child died had it falsely identified in the death certificate as the child of one Rosario R. Salita, a close friend of hers. For the falsification thus committed Rosario E. Salita was criminally charged and convicted, although the respondent herself was acquitted on reasonable doubt. The petitioner's motion of February 28 also states, without denial on the part of the respondent, that after Teodoro Ramirez another man, this time a Manila policeman by the name of Jose Gochangco, became her paramour, as a consequence of which criminal charges of adultery have been filed against them before the Fiscal of Manila. Photographs of the two, showing them in intimate pose, were submitted to this Court. Their veracity has not been disputed. The legal issue posed by the foregoing facts is whether adultery is a good defense against the respondent's claim for support pendente lite. In Quintana v. Lerma, 24 Phil. 285, which was an action by the wife against the husband for support, based upon a written contract, this Court held that adultery is a good defense. This ruling was reiterated in the subsequent cases of Sanchez v. Zulueta, 68 Phil. 110, and Mangoma v. Macadaeg, et al., 90 Phil. 508. See also Olayvar v. Olayvar, 98 Phil. 52. The respondent Court of Appeals, in upholding the questioned orders of the lower court, relied on Article 292 of the Civil Code, which reads: ART. 292. During the proceedings for legal separation, or for annulment of marriage, the spouses and children shall be supported from the conjugal partnership property. After the final judgment of legal separation, or of annulment of marriage, the obligation of mutual support between the spouses ceases. However, in case of legal separation, the court may order that the guilty spouse shall give support to the innocent one, the judgment specifying the terms of such order. It is suggested that while adultery may be a defense in an action for personal support, that is, support of the wife by the husband from his own funds, it is not a defense when the support is to be taken from the conjugal partnership property. We do not see that the distinction is material in this case. In the first place Article 292 is not in itself the source of the legal right to receive support. It merely states that the support, not only of the spouses but also of the children, shall be taken from the conjugal property during the pendency of the legal separation proceeding. It does not preclude the loss of such right in certain cases. In the second place, the said article contemplates the pendency of a court action and, inferentially at least, a prima facie showing that the action will prosper. For if the action is shown to be groundless the mere filing thereof will not necessarily set Article 292 in operation. This is also the sense of Section 5 of Rule 61, supra, which requires, among other things, when support pendente lite is applied for, that the court determine provisionally "the probable outcome of the case." Article 100 of the Civil Code provides that "the legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage ... (and) where both spouses are offenders, a legal separation cannot be claimed by either of them ..." In a provisional sense at least, within the meaning of Rule 61 (Section 5), the probable failure of the respondent's suit for legal separation can be foreseen since she is not an innocent spouse, having been convicted of adultery by the Court of First Instance. It is true that the judgment of conviction is on appeal in the Court of Appeals, but the same undoubtedly satisfies the standard of provisional showing set by the aforesaid Rule. If legal separation cannot be claimed by the guilty spouse in the first place, the fact that an action for that purpose is filed anyway should not be permitted to be used

as a means to obtain support pendente lite, which, without such action, would be denied on the strength of the decisions of this Court recognizing adultery as a good defense. Otherwise, as pointed out by the petitioner, all that an erring spouse has to do to circumvent such defense would be to file a suit for legal separation no matter how groundless. The right to separate support or maintenance, even from the conjugal partnership property, presupposes the existence of a justifiable cause for the spouse claiming such right to live separately. This is implicit in Article 104 of the Civil Code, which states that after the filing of the petition for legal separation the spouses shall be entitled to live separately from each other. A petition in bad faith, such as that filed by one who is himself or herself guilty of an act which constitutes a ground for legal separation at the instance of the other spouse, cannot be considered as within the intendment of the law granting separate support. In fact under Article 303 of the same Code the obligation to give support shall cease "when the recipient, be he a forced heir or not, has committed some act which gives rise to disinheritance;" and under Article 921 one of the causes for disinheriting a spouse is "when the spouse has given cause for legal separation." The loss of the substantive right to support in such a situation is incompatible with any claim for support pendente lite. What has been said above, of course, is not meant to be a prejudgment of either the legal separation proceeding pending in the lower court or the criminal case for adultery pending in the Court of Appeals. It is to be understood only in the light of Rule 61, Section 5, of the Rules of Court, which specifically governs the subject of support pendente lite. WHEREFORE, the resolution of respondent Court of Appeals of January 20, 1971 and the orders of respondent Juvenile and Domestic Relations Court herein complained of, dated December 24, 1969 and February 15, 1970, all are set aside and their enforcement enjoined, without prejudice to such judgment as may be rendered in the pending action for legal separation between the parties. No pronouncement as to costs. Castro, Teehankee, Makasiar and Muoz Palma, JJ., concur. Esguerra, J., took no part. EN BANC G.R. No. L-10033 December 28, 1956

BENJAMIN BUGAYONG, plaintiff-appellant, vs. LEONILA GINEZ, defendant-appellee. Florencio Dumapias for appellant. Numeriano Tanopo, Jr. for appellee.

FELIX, J.: This is a case for legal separation filed in the Court of First Instance of Pangasinan wherein on motion of the defendant, the case was dismissed. The order of dismissal was appealed to the Court of Appeals, but said Tribunal certified the case to the Court on the ground that there is absolutely no

question of fact involved, the motion being predicated on the assumption as true of the very facts testified to by plaintiff-husband. The facts of the case abridgedly stated are as follows: Benjamin Bugayong, a serviceman in the United States Navy, was married to defendant Leonila Ginez on August 27, 1949, at Asingan, Pangasinan, while on furlough leave. Immediately after their marriage, the couple lived with their sisters who later moved to Sampaloc, Manila. After some time, or about July, 1951, Leonila Ginez left the dwelling of her sister-in-law and informed her husband by letter that she had gone to reside with her mother in Asingan, Pangasinan, from which place she later moved to Dagupan City to study in a local college there. As early as July, 1951, Benjamin Bugayong began receiving letters from Valeriana Polangco (plaintiff's sister-in-law) and some from anonymous writers(which were not produced at the hearing) informing him of alleged acts of infidelity of his wife which he did not even care to mention. On crossexamination, plaintiff admitted that his wife also informed him by letter, which she claims to have destroyed, that a certain "Eliong" kissed her. All these communications prompted him in October, 1951 to seek the advice of the Navy Chaplain as to the propriety of a legal separation between him and his wife on account of the latter's alleged acts of infidelity, and he was directed to consult instead the navy legal department. In August, 1952, plaintiff went to Asingan, Pangasinan, and sought for his wife whom he met in the house of one Mrs. Malalang, defendant's godmother. She came along with him and both proceeded to the house of Pedro Bugayong, a cousin of the plaintiff-husband, where they stayed and lived for 2 nights and 1 day as husband and wife. Then they repaired to the plaintiff's house and again passed the night therein as husband and wife. On the second day, Benjamin Bugayong tried to verify from his wife the truth of the information he received that she had committed adultery but Leonila, instead of answering his query, merely packed up and left, which he took as a confirmation of the acts of infidelity imputed on her. After that and despite such belief, plaintiff exerted efforts to locate her and failing to find her, he went to Bacarra, Ilocos Norte, "to soothe his wounded feelings". On November 18, 1952, Benjamin Bugayong filed in the Court of First Instance of Pangasinan a complaint for legal separation against his wife, Leonila Ginez, who timely filed an answer vehemently denying the averments of the complaint and setting up affirmative defenses. After the issues were joined and convinced that a reconciliation was not possible, the court set the case for hearing on June 9, 1953. Plaintiff's counsel announced that he was to present 6 witnesses but after plaintiffhusband finished testifying in his favor, counsel for the defendant orally moved for the dismissal of the complaint, but the Court ordered him to file a written motion to that effect and gave plaintiff 10 days to answer the same. The motion to dismiss was predicted on the following grounds: (1) Assuming arguendo the truth of the allegations of the commission of "acts of rank infidelity amounting to adultery", the cause of action, if any, is barred by the statute of limitations; (2) That under the same assumption, the act charged have been condoned by the plaintiff-husband; and (3) That the complaint failed to state a cause of action sufficient for this court to render a valid judgment. The motion to dismiss was answered by plaintiff and the Court, considering only the second ground of the motion to dismiss i. e., condonation, ordered the dismissal of the action. After the motion for reconsideration filed by plaintiff was denied, the case was taken up for review to the Court of Appeals, appellant's counsel maintaining that the lower court erred: (a) In so prematurely dismissing the case;

(b) In finding that there were condonation on the part of plaintiff-appellant; and (c) In entertaining condonation as a ground for dismissal inasmuch as same was not raised in the answer or in a motion to dismiss. As the questions raised in the brief were merely questions of law, the Court of Appeals certified the case to Superiority. The Civil Code provides: ART. 97. A petition for legal separation may be filed: (1) For adultery on the part of the wife and for concubinage for the part of the husband as defined on the Penal Code; or (2) An attempt by one spouse against the life of the other. ART. 100. The legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage . Where both spouses are offenders, a legal separation cannot by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition. ART. 102. An action for legal separation cannot be filed except within one year from and after the date on which the plaintiff became cognizant of the cause and within five years from and after the date when such cause occurred. As the only reason of the lower Court for dismissing the action was the alleged condonation of the charges of adultery that the plaintiff-husband had preferred in the complaint against his wife, We will disregard the other 2 grounds of the motion to dismiss, as anyway they have not been raised in appellant's assignment of errors. Condonation is the forgiveness of a marital offense constituting a ground for legal separation or, as stated in I Bouver's Law Dictionary, p. 585, condonation is the "conditional forgiveness or remission, by a husband or wife of a matrimonial offense which the latter has committed". It is to be noted, however, that in defendant's answer she vehemently and vigorously denies having committed any act of infidelity against her husband, and even if We were to give full weight to the testimony of the plaintiff, who was the only one that had the chance of testifying in Court and link such evidence with the averments of the complaint, We would have to conclude that the facts appearing on the record are far from sufficient to establish the charge of adultery, or, as the complaint states, of "acts of rank infidelity amounting to adultery" preferred against the defendant. Certainly, the letter that plaintiff claims to have received from his sister-in-law Valeriana Polangco, which must have been too vague and indefinite as to defendant's infidelity to deserve its production in evidence; nor the anonymous letters which plaintiff also failed to present; nor the alleged letter that, according to plaintiff, his wife addressed to him admitting that she had been kissed by one Eliong, whose identity was not established and which admission defendant had no opportunity to deny because the motion to dismiss was filed soon after plaintiff finished his testimony in Court, do not amount to anything that can be relied upon. But this is not a question at issue. In this appeal, We have to consider plaintiff's line of conduct under the assumption that he really believed his wife guilty of adultery . What did he do in such state of mind. In August, 1952, he went to Pangasinan and looked for his wife and after finding

her they lived together as husband and wife for 2 nights and 1 day, after which he says that he tried to verify from her the truth of the news he had about her infidelity, but failed to attain his purpose because his wife, instead of answering his query on the matter, preferred to desert him, probably enraged for being subjected to such humiliation. And yet he tried to locate her, though in vain. Now, do the husband's attitude of sleeping with his wife for 2 nights despite his alleged belief that she was unfaithful to him, amount to a condonation of her previous and supposed adulterous acts? In the order appealed from, the Court a quo had the following to say on this point: In the hearing of the case, the plaintiff further testified as follows: Q. Now Mr. Bugayong, you have filed this action for legal separation from your wife. Please tell this Hon. Court why you want to separate from your wife? A. I came to know that my wife is committing adultery, I consulted the chaplain and he told me to consult the legal adviser. (p. 11, t.s.n.) Q. Did you finally locate her?--A. Four days later or on the fifth day since my arrival she went to the house of our god-mother, and as a husband I went to her to come along with me in our house but she refused. (p. 12, t.s.n.)
lawphil.net

Q. What happened next? A. I persuaded her to come along with me. She consented but I did not bring her home but brought her to the house of my cousin Pedro Bugayong. (p. 12, t.s.n.) Q. How long did you remain in the house of your cousin Pedro Bugayong? A. One day and one night. (p. 12. t.s.n.) Q. That night when you stayed in the house of your cousin Pedro Bugayong as husband and wife, did you slept together? A. Yes, sir. (p. 19, t.s.n.) Q. On the next night, when you slept in your own house, did you sleep together also as husband and wife? A. Yes, sir. (p. 19. t.s.n.) Q. When was that? A. That was in August, 1952. (p. 19 t.s.n.) Q. How many nights did you sleep together as husband and wife? A. Only two nights. (p. 19, t.s.n.) The New Civil Code of the Philippines, in its Art. 97, says: A petition for legal separation may be filed: (1) For adultery on the part of the wife and concubinage on the part of the husband as defined on the Penal Code. and in its Art. 100 it says:
lawphil.net

The legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. Where both spouses are offenders, legal separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition.

A detailed examination of the testimony of the plaintiff-husband, especially those portions quoted above, clearly shows that there was a condonation on the part of the husband for the supposed "acts of rank infidelity amounting to adultery" committed by defendant-wife. Admitting for the sake of argument that the infidelities amounting to adultery were committed by the defendant, a reconciliation was effected between her and the plaintiff. The act of the latter in persuading her to come along with him, and the fact that she went with him and consented to be brought to the house of his cousin Pedro Bugayong and together they slept there as husband and wife for one day and one night, and the further fact that in the second night they again slept together in their house likewise as husband and wife all these facts have no other meaning in the opinion of this court than that a reconciliation between them was effected and that there was a condonation of the wife by the husband. The reconciliation occurred almost ten months after he came to know of the acts of infidelity amounting to adultery. In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that "condonation is implied from sexual intercourse after knowledge of the other infidelity. such acts necessary implied forgiveness. It is entirely consonant with reason and justice that if the wife freely consents to sexual intercourse after she has full knowledge of the husband's guilt, her consent should operate as a pardon of his wrong." In Tiffany's Domestic and Family Relations, section 107 says: Condonation. Is the forgiveness of a marital offense constituting a ground for divorce and bars the right to a divorce. But it is on the condition, implied by the law when not express, that the wrongdoer shall not again commit the offense; and also that he shall thereafter treat the other spouse with conjugal kindness. A breach of the condition will revive the original offense as a ground for divorce. Condonation may be express or implied. It has been held in a long line of decisions of the various supreme courts of the different states of the U. S. that 'a single voluntary act of sexual intercourse by the innocent spouse after discovery of the offense is ordinarily sufficient to constitute condonation, especially as against the husband'. (27 Corpus Juris Secundum, section 61 and cases cited therein). In the lights of the facts testified to by the plaintiff-husband, of the legal provisions above quoted, and of the various decisions above-cited, the inevitable conclusion is that the present action is untenable. Although no acts of infidelity might have been committed by the wife, We agree with the trial judge that the conduct of the plaintiff-husband above narrated despite his belief that his wife was unfaithful, deprives him, as alleged the offended spouse, of any action for legal separation against the offending wife, because his said conduct comes within the restriction of Article 100 of the Civil Code. The only general rule in American jurisprudence is that any cohabitation with the guilty party, after the commission of the offense, and with the knowledge or belief on the part of the injured party of its commission, will amount to conclusive evidence of condonation; but this presumption may be rebutted by evidence (60 L. J. Prob. 73). If there had been cohabitation, to what extent must it be to constitute condonation?

Single voluntary act of marital intercourse between the parties ordinarily is sufficient to constitute condonation, and where the parties live in the same house, it is presumed that they live on terms of matrimonial cohabitation (27 C. J. S., section 6-d). A divorce suit will not be granted for adultery where the parties continue to live together after it was known (Land vs. Martin, 15 South 657; Day vs. Day, 80 Pac. 974) or there is sexual intercourse after knowledge of adultery (Rogers vs. Rogers, 67 N. J. Eq. 534) or sleeping together for a single night (Toulson vs. Toulson, 50 Atl. 401, citing Phinizy vs. Phinizy, 114 S. E. 185, 154 Ga. 199; Collins vs. Collins, 193 So. 702), and many others. The resumption of marital cohabitation as a basis of condonation will generally be inferred, nothing appearing to the contrary, from the fact of the living together as husband and wife, especially as against the husband (Marsh vs. Marsh, 14 N. J. Eq. 315). There is no ruling on this matter in our jurisprudence but we have no reason to depart from the doctrines laid down in the decisions of the various supreme courts of the United States above quoted. There is no merit in the contention of appellant that the lower court erred in entertaining condonation as a ground for dismissal inasmuch as same was not raised in the answer or in a motion to dismiss, because in the second ground of the motion to dismiss. It is true that it was filed after the answer and after the hearing had been commenced, yet that motion serves to supplement the averments of defendant's answer and to adjust the issues to the testimony of plaintiff himself (section 4, Rule 17 of the Rules of Court). Wherefore, and on the strength of the foregoing, the order appealed from is hereby affirmed, with costs against appellant. It is so ordered. Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L. and Endencia, JJ., concur.

FIRST DIVISION

ONG ENG KIAM a.k.a. WILLIAM ONG, Petitioner,

G.R. NO. 153206

Present:

PANGANIBAN, C.J. (Chairperson) YNARES-SANTIAGO, - versus AUSTRIA-MARTINEZ, CALLEJO, SR., and CHICO-NAZARIO, JJ.

LUCITA G. ONG, Respondent. 2006

Promulgated: October 23,

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ---x

DECISION

AUSTRIA-MARTINEZ, J.:

Before this Court is a Petition for Review seeking the reversal of the Decision[1] of the Court of Appeals (CA) in CA G.R. CV No. 59400 which affirmed in toto the Decision of the Regional Trial Court (RTC) Branch 41, Dagupan City granting the petition for legal separation filed by herein

respondent, as well as the Resolution[2] of the CA dated April 26, 2002 which denied petitioners motion for reconsideration.

Ong Eng Kiam, also known as William Ong (William) and Lucita G. Ong (Lucita) were married on July 13, 1975 at the San Agustin Church in Manila. They have three children: Kingston, Charleston, and Princetonwho are now all of the age of majority.[3]

On March 21, 1996, Lucita filed a Complaint for Legal Separation under Article 55 par. (1) of the Family Code[4] before the Regional Trial Court (RTC) of Dagupan City, Branch 41 alleging that her life with William was marked by physical violence, threats, intimidation and grossly abusive conduct. [5]

Lucita claimed that: soon after three years of marriage, she and William quarreled almost every day, with physical violence being inflicted upon her; William would shout invectives at her like putang ina mo, gago, tanga, and he would slap her, kick her, pull her hair, bang her head against concrete wall and throw at her whatever he could reach with his hand; the causes of these fights were petty things regarding their children or their business; William would also scold and beat the children at different parts of their bodies using the buckle of his belt; whenever she tried to stop William from hitting the children, he would turn his ire on her and box her; on December 9, 1995, after she protested with Williams decision to allow their eldest son Kingston to go to Bacolod, William slapped her and said, it is

none of your business; on December 14, 1995, she asked William to bring Kingston back from Bacolod; a violent quarrel ensued and William hit her on her head, left cheek, eye, stomach, and arms; when William hit her on the stomach and she bent down because of the pain, he hit her on the head then pointed a gun at her and asked her to leave the house; she then went to her sisters house in Binondo where she was fetched by her other siblings and brought to their parents house inDagupan; the following day, she went to her parents doctor, Dr. Vicente Elinzano for treatment of her injuries.[6]

William for his part denied that he ever inflicted physical harm on his wife, used insulting language against her, or whipped the children with the buckle of his belt. While he admits that he and Lucita quarreled onDecember 9, 1995, at their house in Jose Abad Santos Avenue, Tondo, Manila, he claimed that he left the same, stayed in their Greenhills condominium and only went back to their Tondo house to work in their office below. In the afternoon of December 14, 1995, their laundrywoman told him that Lucita left the house.[7]

On January 5, 1998, the RTC rendered its Decision decreeing legal separation, thus:
WHEREFORE, premises considered, judgment is hereby rendered decreeing the legal separation of plaintiff and defendant, with all the legal effects attendant thereto, particularly the dissolution and liquidation of the conjugal partnership properties, for which purpose the parties are hereby ordered to submit a complete inventory

of said properties so that the Court can make a just and proper division, such division to be embodied in a supplemental decision.

SO ORDERED.[8]

The RTC found that:

It is indubitable that plaintiff (Lucita) and defendant (William) had their frequent quarrels and misunderstanding which made both of their lives miserable and hellish. This is even admitted by the defendant when he said that there was no day that he did not quarrel with his wife. Defendant had regarded the plaintiff negligent in the performance of her wifely duties and had blamed her for not reporting to him about the wrongdoings of their children. (citations omitted)

These quarrels were always punctuated by acts of physical violence, threats and intimidation by the defendant against the plaintiff and on the children. In the process, insulting words and language were heaped upon her. The plaintiff suffered and endured the mental and physical anguish of these marital fights until December 14, 1995 when she had reached the limits of her endurance. The more than twenty years of her marriage could not have been put to waste by the plaintiff if the same had been lived in an atmosphere of love, harmony and peace. Worst, their children are also suffering. As very well stated in plaintiffs memorandum, it would be unthinkable for her to throw away this twenty years of relationship, abandon the comforts of her home and be separated from her children, whom she loves, if there exists no cause, which is already beyond her endurance. [9]

William appealed to the CA which affirmed in toto the RTC decision. In its Decision dated October 8, 2001, the CA found that the testimonies for Lucita were straightforward and credible and the ground for legal separation under Art. 55, par. 1 of the Family

Code, i.e., physical violence and grossly abusive conduct directed against Lucita, were adequately proven.[10]

As the CA explained:

The straightforward and candid testimonies of the witnesses were uncontroverted and credible. Dr. Elinzanos testimony was able to show that the [Lucita] suffered several injuries inflicted by [William]. It is clear that on December 14, 1995, she sustained redness in her cheek, black eye on her left eye, fist blow on the stomach, blood clot and a blackish discoloration on both shoulders and a bump or bukol on her head. The presence of these injuries was established by the testimonies of [Lucita] herself and her sister, Linda Lim. The Memorandum/Medical Certificate also confirmed the evidence presented and does not deviate from the doctors main testimony --- that [Lucita] suffered physical violence on [sic] the hands of her husband, caused by physical trauma, slapping of the cheek, boxing and fist blows. The effect of the so-called alterations in the Memorandum/Medical Certificate questioned by [William] does not depart from the main thrust of the testimony of the said doctor.

Also, the testimony of [Lucita] herself consistently and constantly established that [William] inflicted repeated physical violence upon her during their marriage and that she had been subjected to grossly abusive conduct when he constantly hurled invectives at her even in front of their customers and employees, shouting words like, gaga, putang ina mo, tanga, and you dont know anything.

These were further corroborated by several incidents narrated by Linda Lim who lived in their conjugal home from 1989 to 1991. She saw her sister after the December 14, 1995 incident when she (Lucita) was fetched by the latter on the same date. She was a witness to the kind of relationship her sister and [William] had during the three years she lived with them. She observed that [William] has an explosive temper, easily gets angry and becomes very violent. She

cited several instances which proved that William Ong indeed treated her wife shabbily and despicably, in words and deeds.

xxx

That the physical violence and grossly abusive conduct were brought to bear upon [Lucita] by [William] have been duly established by [Lucita] and her witnesses. These incidents were not explained nor controverted by [William], except by making a general denial thereof. Consequently, as between an affirmative assertion and a general denial, weight must be accorded to the affirmative assertion.

The grossly abusive conduct is also apparent in the instances testified to by [Lucita] and her sister. The injurious invectives hurled at [Lucita] and his treatment of her, in its entirety, in front of their employees and friends, are enough to constitute grossly abusive conduct. The aggregate behavior of [William] warrants legal separation under grossly abusive conduct. x x x[11]

William filed a motion for reconsideration which was denied by the CA on April 26, 2002.[12]

Hence the present petition where William claims that:

I

THE COURT OF APPEALS COMMITTED AN ERROR OF LAW IN DISREGARDING CLEAR EVIDENCE THAT THE PETITION FOR LEGAL SEPARATION WAS INSTITUTED BY THE PRIVATE RESPONDENT FOR THE SOLE PURPOSE OF REMOVING FROM PETITIONER THE CONTROL AND OWNERSHIP OF THEIR CONJUGAL PROPERTIES AND TO TRANSFER THE SAME TO PRIVATE RESPONDENTS FAMILY.

II
THE COURT OF APPEALS COMMITTED AN ERROR OF LAW IN DISREGARDING CLEAR EVIDENCE REPUDIATING PRIVATE RESPONDENTS CLAIM OF REPEATED PHYSICAL VIOLENCE AND GROSSLY ABUSIVECONDUCT ON THE PART OF PETITIONER.[13]

William argues that: the real motive of Lucita and her family in filing the case is to wrest control and ownership of properties belonging to the conjugal partnership; these properties, which include real properties in Hong Kong, Metro Manila, Baguio and Dagupan, were acquired during the marriage through his (Williams) sole efforts; the only parties who will benefit from a decree of legal separation are Lucitas parents and siblings while such decree would condemn him as a violent and cruel person, a wife-beater and child abuser, and will taint his reputation, especially among the Filipino-Chinese community; substantial facts and circumstances have been overlooked which warrant an exception to the general rule that factual findings of the trial court will not be disturbed on appeal; the findings of the trial court that he committed acts of repeated physical violence againstLucita and their children were not sufficiently established; what took place were disagreements regarding the manner of raising and disciplining the children particularly Charleston, Lucitas favorite son; marriage being a social contract cannot be impaired by mere verbal disagreements and the complaining party must adduce clear and convincing evidence to justify legal separation; the CA erred in relying on the testimonies of Lucita and her witnesses, her sister Linda Lim, and their parents doctor, Dr. Vicente Elinzanzo, whose testimonies are tainted with relationship and fraud; in the 20 years of their marriage, Lucita has not complained of any cruel behavior on the part of William in relation to their marital and family life; William expressed his willingness to receive respondent unconditionally however, it is Lucita who abandoned the conjugal dwelling on December 14, 1995 and instituted the complaint below in order to appropriate for herself and her

relatives the conjugal properties; the Constitution provides that marriage is an inviolable social institution and shall be protected by the State, thus the rule is the preservation of the marital union and not its infringement; only for grounds enumerated in Art. 55 of the Family Code, which grounds should be clearly and convincingly proven, can the courts decree a legal separation among the spouses.
[14]

Respondent Lucita in her Comment, meanwhile, asserts that: the issues raised in the present petition are factual; the findings of both lower courts rest on strong and clear evidence borne by the records; this Court is not a trier of facts and factual findings of the RTC when confirmed by the CA are final and conclusive and may not be reviewed on appeal; the contention of William that Lucita filed the case for legal separation in order to remove from William the control and ownership of their conjugal properties and to transfer the same to Lucitas family is absurd; Lucita will not just throw her marriage of 20 years and forego the companionship of William and her children just to serve the interest of her family; Lucita left the conjugal home because of the repeated physical violence and grossly abusive conduct of petitioner.[15] Petitioner filed a Reply, reasserting his claims in his petition,[16] as well as a Memorandum where he averred for the first time that since respondent is guilty of abandonment, the petition for legal separation should be denied following Art. 56, par. (4) of the Family Code.[17] Petitioner argues that since respondent herself has given ground for legal separation by abandoning the family simply because of a quarrel and refusing to return thereto unless the conjugal properties were placed in the administration of petitioners in-laws, no decree of legal separation should be issued in her favor. [18]

Respondent likewise filed a Memorandum reiterating her earlier assertions.

[19]

We resolve to deny the petition. It is settled that questions of fact cannot be the subject of a petition for review under Rule 45 of the Rules of Court. The rule finds more stringent application where the CA upholds the findings of fact of the trial court. In such instance, this Court is generally bound to adopt the facts as determined by the lower courts.[20] The only instances when this Court reviews findings of fact are:
(1) when the findings are grounded entirely on speculation, surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of facts are conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to that of the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondent; (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; and (11) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion .[21]

As petitioner failed to show that the instant case falls under any of the exceptional circumstances, the general rule applies.

Indeed, this Court cannot review factual findings on appeal, especially when they are borne out by the records or are based on substantial evidence.[22] In this case, the findings of the RTC were affirmed by the CA and are adequately supported by the records.

As correctly observed by the trial court, William himself admitted that there was no day that he did not quarrel with his wife, which made his life miserable, and he blames her for being negligent of her wifely duties and for not reporting to him the wrongdoings of their children.[23]

Lucita and her sister, Linda Lim, also gave numerous accounts of the instances when William displayed violent temper against Lucita and their children; such as: when William threw a steel chair at Lucita;[24] threw chairs at their children; [25] slapped Lucita and utter insulting words at her; [26] use the buckle of the belt in whipping the children; [27] pinned Lucita against the wall with his strong arms almost strangling her, and smashed the flower vase and brick rocks and moldings leaving the bedroom in disarray;[28] shouted at Lucita and threw a directory at her, in front of Linda and the employees of their business, because he could not find a draft letter on his table;[29] got mad at Charleston for cooking steak with vetchin prompting William to smash the plate with steak and hit Charleston, then slapped Lucita and shouted at her putang ina mo, gago, wala kangpakialam, tarantado when she sided with Charleston;[30] and the December 9 and December 14,

1995 incidents which forced Lucita to leave the conjugal dwelling.

[31]

Lucita also explained that the injuries she received on December 14, 1995, were not the first. As she related before the trial court:

q.

You stated on cross examination that the injuries you sustained on December 14, 1995 were the most serious?

a.

Unlike before I considered December 14, 1995 the very serious because before it is only on the arm and black eye, but on this December 14, I suffered bruises in all parts of my body, sir. [32]

To these, all William and his witnesses, could offer are denials and attempts to downplay the said incidents. [33]

As between the detailed accounts given for Lucita and the general denial for William, the Court gives more weight to those of the former. The Court also gives a great amount of consideration to the assessment of the trial court regarding the credibility of witnesses as trial court judges enjoy the unique opportunity of observing the deportment of witnesses on the stand, a vantage point denied appellate tribunals. [34] Indeed, it is settled that the assessment of the trial court of the credibility of witnesses is entitled to great respect and weight having had the

opportunity to observe the conduct and demeanor of the witnesses while testifying.[35]

In this case, the RTC noted that:

[William]s denial and that of his witnesses of the imputation of physical violence committed by him could not be given much credence by the Court. Since the office secretary Ofelia Rosal and the family laundrywoman Rosalino Morco are dependent upon defendant for their livelihood, their testimonies may be tainted with bias and they could not be considered as impartial and credible witnesses. So with Kingston Ong who lives with defendant and depends upon him for support.[36]

Parenthetically, William claims that that the witnesses of Lucita are not credible because of their relationship with her. We do not agree. Relationship alone is not reason enough to discredit and label a witnesss testimony as biased and unworthy of credence[37] and a witness relationship to one of the parties does not automatically affect the veracity of his or her testimony. [38] Considering the detailed and straightforward testimonies given by Linda Lim and Dr. Vicente Elinzano, bolstered by the credence accorded them by the trial court, the Court finds that their testimonies are not tainted with bias.

William also posits that the real motive of Lucita in filing the case for legal separation is in order for her side of the family to gain control of the conjugal properties; that Lucita was willing to destroy his reputation by filing the legal separation case just so

her parents and her siblings could control the properties he worked hard for. The Court finds such reasoning hard to believe. What benefit would Lucita personally gain by pushing for her parents and siblings financial interests at the expense of her marriage? What is more probable is that there truly exists a ground for legal separation, a cause so strong, that Lucita had to seek redress from the courts. As aptly stated by the RTC,

...it would be unthinkable for her to throw away this twenty years of relationship, abandon the comforts of her home and be separated from her children whom she loves, if there exists no cause, which is already beyond her endurance.[39]

The claim of William that a decree of legal separation would taint his reputation and label him as a wife-beater and childabuser also does not elicit sympathy from this Court. If there would be such a smear on his reputation then it would not be because of Lucitas decision to seek relief from the courts, but because he gave Lucita reason to go to court in the first place.

Also without merit is the argument of William that since Lucita has abandoned the family, a decree of legal separation should not be granted, following Art. 56, par. (4) of the Family Code which provides that legal separation shall be denied when both parties have given ground for legal separation. The abandonment referred to by the Family Code is abandonment without justifiable cause for more than one year. [40] As it was established that Lucita left William due to his abusive conduct,

such does not constitute abandonment contemplated by the said provision.

As a final note, we reiterate that our Constitution is committed to the policy of strengthening the family as a basic social institution.[41] The Constitution itself however does not establish the parameters of state protection to marriage and the family, as it remains the province of the legislature to define all legal aspects of marriage and prescribe the strategy and the modalities to protect it and put into operation the constitutional provisions that protect the same. [42] With the enactment of the Family Code, this has been accomplished as it defines marriage and the family, spells out the corresponding legal effects, imposes the limitations that affect married and family life, as well as prescribes the grounds for declaration of nullity and those for legal separation.[43] As Lucita has adequately proven the presence of a ground for legal separation, the Court has no reason but to affirm the findings of the RTC and the CA, and grant her the relief she is entitled to under the law.

WHEREFORE, the petition is DENIED for lack of merit. Costs against petitioner. SO ORDERED.
EN BANC G.R. No. 167693 September 19, 2006 (Formerly G.R. Nos. 147678-87)

PEOPLE OF THE PHILIPPINES, appellee, vs. MELCHOR CABALQUINTO, appellant. DECISION TINGA, J. This case presents an opportunity for the Court not only to once again dispense due requital for the sufferings of a child who has been defiled by her own father, but also to effectuate the provisions of Republic Act No. 7610 (RA 7610), otherwise known as the Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act, and its implementing rules, RA 9262, otherwise known as the Anti-Violence Against Women and Their Children Act of 2004 , and its implementing rules, and our own Rule on Violence Against Women and their Children .1 The provisions on confidentiality of these enactments uniformly seek to respect the dignity and protect the privacy of women and their children. Sec. 29 of RA 7610 provides: Sec. 29. Confidentiality. at the instance of the offended party, his name may be withheld from the public until the court acquires jurisdiction over the case. It shall be unlawful for any editor, publisher, and reporter or columnist in case of printed materials, announcer or producer in the case of television and radio broadcasting, producer and director in the case of the movie industry, to cause undue and sensationalized publicity of any case of a violation of this Act which results in the moral degradation and suffering of the offended party. Sec. 44 of RA 9262 similarly provides: Sec. 44. Confidentiality.All records pertaining to cases of violence against women and their children including those in the barangay shall be confidential and all public officers and employees and public or private clinics or hospitals shall respect the right to privacy of the victim. Whoever publishes or causes to be published, in any format, the name, address, telephone number, school, business address, employer, or other identifying information of a victim or an immediate family member, without the latter's consent, shall be liable to the contempt power of the court. Any person who violates this provision shall suffer the penalty of one (1) year imprisonment and a fine of not more than Five Hundred Thousand Pesos (P500,000.00). Likewise, the Rule on Violence Against Women and their Children states: Sec. 40. Privacy and confidentiality of proceedings.All hearings of cases of violence against women and their children shall be conducted in a manner consistent with the dignity of women and their children and respect for their privacy. Records of the cases shall be treated with utmost confidentiality. Whoever publishes or causes to be published, in any format, the name, address, telephone number, school, business address, employer or other identifying information of the parties or an immediate family or household member, without their consent or without authority of the court, shall be

liable for contempt of court and shall suffer the penalty of one year imprisonment and a fine of not more than Five Hundred Thousand (P500,000.00) Pesos. It is worth mentioning in this connection that the Court has resolved to refrain from posting in its Internet Web Page the full text of decisions in cases involving child sexual abuse in response to a letter from a mother of a child abuse victim addressed to the Chief Justice expressing anxiety over the posting of full text decisions of the Supreme Court on its Internet Web Page. The mother submitted that confidentiality and the best interest of the child must prevail over public access to information and pleaded that her daughter's case, as well as those of a similar nature, be excluded from the Web Page.2 The Court required the Office of the Solicitor General (OSG), the Integrated Bar of the Philippines (IBP), National Press Club (NPC), Philippine Press Institute (PPI), Kapisanan ng mga Brodkaster sa Pilipinas (KBP) and the Department of Social Welfare and Development (DSWD) to comment on whether or not it is proper to post the full text of decisions of similar cases on the Supreme Court Web Page. The position of the OSG in its Comment3 is noteworthy. The OSG submits that the posting of the full text of decisions in cases involving child abuse on the Supreme Court Web Page violates the right to privacy of the aggrieved parties. In order to determine whether the subject matter upon which the right to privacy being invoked falls within the constitutionally-protected zone of privacy, it must be shown that the person's expectation of privacy is reasonable. The reasonableness of such expectancy depends on a twopart test: (1) whether by his conduct, the individual has exhibited an expectation of privacy; and (2) whether this expectation is one that society recognizes as reasonable. According to the OSG, the fact that the aggrieved child may have consented, through a parent or guardian, to a public hearing of the case does not negate the expectation of privacy which the child may later invoke because child victims cannot be presumed to have intended their initial agreement to extend beyond the termination of their case to the posting of the decision reached by the Court on the Web Page. Moreover, such an expectation of privacy is reasonable considering the various statutes and rules which reveal the intention of the State to maintain the confidentiality of information pertaining to child abuse cases. The OSG invites the Court's attention to a New Jersey statute which provides that all court documents which state the name, address and identity of a child victim in certain sexual assault, endangering the welfare and abuse and neglect cases should remain confidential. The name of the victim shall not appear in any public record; rather, initials or a fictitious name shall appear. The offenses covered by the law include aggravated sexual assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact, endangering the welfare of children, and any action alleging an abused or neglected child. Thus, in Application of V Pub. Corp., 120 N.J. 508 (1990), and Div. of Youth & Fam. Serv. V. J.B., 120 N.J. 112 (1990), the New Jersey Supreme Court provided guidelines in the implementation of this statute. In conclusion, the OSG suggests the adoption of a system of coding which could include the use of pseudonyms in cases of a similar nature. Short of withdrawing the full text of decisions in such cases from the Web Page, the OSG proposes that the Court instead replace the material information, such as the name of the child-victim, in its decisions. The DSWD imparted the same sentiment. It submits that the court records of child abuse cases should be treated with strict confidentiality not only throughout the court proceedings, but even after the promulgation of the decision in order to protect the right to privacy of the child and her family and

to preclude instances where undue disclosure of information may impair the treatment and rehabilitation of the child-victim.4 The Court likewise appreciates the separate comments of the KBP and NPC. The KBP informs the Court that its members have agreed not to identify in their broadcasts the names of children who are victims of abuse or are in conflict with the law.5 The NPC, on the other hand, tells us that the prevailing media practice is to inquire whether these individuals wish to have their names appear in the report. If they do not, media would normally take off the names and merely provide a very general description of the individual in recognition of the need to carefully balance the right to information with the welfare of the parties involved. 6 Taking all these opinions into account and in view of recent enactments which unequivocally express the intention to maintain the confidentiality of information in cases involving violence against women and their children, in this case and henceforth, the Court shall withhold the real name of the victimsurvivor7 and shall use fictitious initials instead to represent her. Likewise, the personal circumstances of the victims-survivors or any other information tending to establish or compromise their identities, as well those of their immediate family or household members, shall not be disclosed.8 On February 18, 2002, the Regional Trial Court of Quezon City, Branch 87, convicted Melchor Cabalquinto (Cabalquinto) on two (2) counts for the rape of his eight-year old daughter, AAA. The dispositive portion of the decision states: WHEREFORE, finding accused guilty in both Criminal Case No. Q-98-79683 and Criminal Case No. Q-98-79684, for Rape, judgment is hereby rendered sentencing accused MELCHOR CABALQUINTO Y MINGO to suffer the penalty of DEATH on both counts, pursuant to the penalty imposed under Article 335 of the Revised Penal Code of the Philippines as amended by RA 7659. Accused is further ordered to indemnify his daughter-victim the sum of Seventy Five Thousand Pesos (P75,000.00) for damages, in each count. SO ORDERED.9 This case was initiated by a sworn statement filed by AAA, assisted by her mother, ABC, 10 which resulted in the filing of two (2) Informations for rape, the first alleging: That on or about the 8th day of November 1998, in xxx City, Philippines, the said accused by means of force and intimidation, did then and there willfully, unlawfully and feloniously undress [AAA], his own daughter, 8 years old, a minor, put himself on top of her, inside the room of their residence located at xxx,11 this City, and thereafter have carnal knowledge with her against her will and without her consent. CONTRARY TO LAW.12 and the second stating: That on or about the 13th day of November 1998, in xxx City, Philippines, the said accused by means of force and intimidation did then and there willfully, unlawfully and feloniously undress [AAA], his own daughter, 8 years of age, a minor, put himself on top of her, inside

the room of their residence located at xxx,13 this City, and thereafter have carnal knowledge with her against her will and without her consent. CONTRARY TO LAW.14 Cabalquinto pleaded not guilty on arraignment. Trial on the merits ensued which resulted in his conviction and the imposition of the penalty of death. The records of the case were thereafter forwarded to this Court on automatic review. On December 10, 2002, the Court issued a Resolution requiring the parties to submit their respective briefs. The parties complied. Pursuant to the case of People v. Efren Mateo,15 however, the Court issued a Resolution on September 14, 2004, transferring the case to the Court of Appeals for appropriate action. The appellate court affirmed the decision of the trial court and added an award of P50,000.00 as moral damages and P25,000.00 as exemplary damages.16 The case is again before us for our final disposition. The prosecution presented as witnesses AAA herself, her mother ABC, and Dr. Stella GuerreroManalo (Dr. Manalo) of the Child Protection Unit (CPU) of the Philippine General Hospital (PGH). ABC testified that she is the common-law wife of Cabalquinto and that they have four children, namely: BBB, CCC, the child-victim AAA, and DDD. At around 8:45 p.m. of November 13, 1998, she was on her way home to xxx, and saw her sons BBB and CCC outside the house, and her youngest daughter DDD playing with a cousin. As she was approaching the house, she noticed that the door was closed although the lights were on. Since there is a half-inch gap between the door and the wall, she peeped through the gap and saw Cabalquinto lying face down making pumping motions on their daughter, AAA, who was lying underneath him with her panties pulled down. When she heard Cabalquinto tell AAA to open her legs ("ibuka mo"), she kicked and pounded the door. Cabalquinto immediately lay down. AAA then stood up and opened the door. ABC entered the room and confronted Cabalquinto who only denied her accusation. She then asked AAA what her father did to her. AAA did not say anything but looked pale. 17 After regaining her composure, she went to her sister-in-law EEE, who lived on the second floor of the house, and confided to the latter. At around 10:00 o'clock that night, she went to her sister's house in xxx to seek advice. Her sister told her to report the matter to the barangay officials. The barangay officials, in turn, told her to go to the police which she did the following day, November 14, 1998.18 AAA's Salaysay was taken by the police and they were referred to the CPU of PGH. Because there was no doctor on duty, she and AAA returned to the CPU on November 16, 1998. AAA was examined by a doctor and a medical certificate was issued. They returned to the police station where she executed her Salaysay. They then proceeded to the fiscal's office to lodge a complaint. 19 ABC further testified that during the police investigation on November 14, 1998, AAA revealed to the police that a similar incident happened to her on November 8, 1998, the day of her friend's birthday celebration.20 AAA testified that at around 8:45 p.m. on November 13, 1998, she was inside their house in xxx, with her father, Cabalquinto, when the latter instructed her to close the door and windows and turn off the light. She obeyed but did not turn off the light. Her father then told her to lie down and

immediately placed himself on top of her. He then undressed her, brought out his penis, asked her to masturbate him and to suck his penis, inserted his penis in her private parts and licked her private parts. He told her not to tell her ninang DDD or her mother; otherwise, he would kill them all. She felt pain in her stomach and pelvis after the incident. 21 Corroborating her mother's testimony, AAA stated that while they were at the police station, she disclosed that she was also raped by her father on November 8, 1998. She remembered the incident because it was the day her friend, FFF, celebrated her birthday. According to AAA, her father had been drinking that night. When she went home to drink water, she was called by her father, told to close the door and windows and to turn off the lights. She obeyed but did not turn off the lights. Her father then placed himself on top of her and told her to masturbate him. 22 AAA further testified that she was not enrolled in school because her mother had been abroad. 23 It should be mentioned that in her Sinumpaang Salaysay dated November 14, 1998, AAA stated that her father had raped her seven (7) times since her mother left for abroad. She said that she distinctly remembered having been raped by her father on November 8, 1998, her friend's birthday; August 16, 1998 during the fiesta; and on November 13, 1998, the day before her statement was taken. However, she said no longer remembered the exact dates of the other incidents. 24 Dr. Manalo, who conducted the physical examination of AAA, testified that AAA had no injury on her genitalia; that her hymen is quite large and distensible possibly because of penile penetration; and that she recovered a strand of pubic hair inside AAA's vaginal vault which could only have reached the area as a consequence of penile penetration because AAA did not have pubic hair yet. 25 On cross-examination, Dr. Manalo stated that she did not find any traces of bleeding in AAA's vagina but that injury is uncommon in incestuous rape.26 The trial court admitted the following documentary evidence formally offered by the prosecution: (1) Referral Letter to the Office of the Prosecutor; (2) Sinumpaang Salaysay of ABC; (3) Sinumpaang Salaysay of AAA; (4) medical certificate; (5) birth certificate of AAA; and (6) Curriculum Vitae of Dr. Stella Manalo.27 Testifying as lone witness for his defense, Cabalquinto denied that he raped AAA on November 8 and 13, 1998. He claimed that on November 13, 1998, he just slept in the sala of their house with AAA and DDD, while his sons, BBB and CCC, slept in another room. On November 8, 1998, he claimed that after cooking the food for FFF's birthday party, he went home and slept. He averred that the cases filed against him were the offshoot of frequent quarrels between his common-law wife, ABC, and his brother, GGG.28 We have meticulously and painstakingly examined the records as well as the transcripts of stenographic notes and find no cause to overturn the findings of fact and conclusions of the trial court and the Court of Appeals. We affirm Cabalquinto's conviction. Cabalquinto's claim that there are material inconsistencies between the testimonies of AAA and ABC with regard to whether AAA cried out as she was being raped because while AAA testified that she shouted twice, ABC stated that she did not see AAA struggle nor hear her call out, is unconvincing. AAA was firm and unwavering in her narration of her traumatic experience. During cross examination, she remained steadfast in her assertion that her father inserted his penis inside her

genitals and raped her, even demonstrating what she understood of the word rape by forming a circle with her fingers and moving her middle finger inside and out indicating sexual intercourse. 29 Thus, the trial court gave full credence to AAA's testimony and ruled: From the testimony of the principal witness, [AAA] alone, viz, the testimony of the accused, there is no reason to doubt that accused has [sic] molested his daughter, and had carnal knowledge of her, on two occasions, nighttime on November 8 and 13, 1998, when [AAA] was then only 8 years old, inside their dwelling. The testimony of [AAA] was even more bolstered by the consistency of her declaration under cross by the defense counsel, Atty. Torralba of the Public Attorney's Office, whose attempt to discredit [AAA]'s accusation by making it appear that she would not have known how to testify that she was raped by her own father, had she not been coached by someone else to say so, miserably failed. In the following portions of [AAA]'s cross-examination by the Defense, instead of destroying [AAA]'s credibility the more that it was established that accused indeed raped her (sic) daughter. xxxx [AAA]'s declaration that she was raped corroborates the testimony of the doctor who testified that a strand of hair was found inside [AAA]'s vaginal vault. The doctor's testimony that the presence of a strand of hair inside the vaginal vault would not be possible without sexual intercourse, bolsters the accusation of [AAA] that she had been raped. Of course, there is no test to determine whose hair was it, but considering [AAA]'s testimony that accused had carnal knowledge of her twice prior to examination, a conclusion that the hair is accused's is plausible. The idea that that hair was purposely placed inside [AAA]'s vagina would be absurdity. Thus, when [AAA] pointed to her father as the person who molested her, this Court can only believe because no daughter in [AAA]'s age would accuse her own father of any wrongdoing, if it is not for the fact that he had wronged her, and that hair (pubic or not) is accused's.30 ABC's testimony of what she witnessed regarding the act of rape corroborates AAA's account. The inconsistency between the testimony of AAA and her mother pertains merely to a circumstance that is of little consequence to the question of whether rape was actually committed. Whether AAA cried out or not does not discount rape. It should be emphasized that AAA was but eight (8) years old when the rapes happened. A child of her tender years cannot be expected to be able to recount the details of her torment with exactitude. In People v. Villar,31 the accused questioned the inconsistency between the victim's declaration in her sworn statement and her direct testimony in court as to the exact time when she was first raped by the accused in 1993.32 The Court held that it cannot impose the burden of exactness in the victim's recollection of her harrowing experience more so because the victim was an innocent and tender nine (9)-year old lass when she was first raped. 33 Citing People v. Sagucio,34 we also held that errorless testimony cannot be expected especially when a witness is recounting the details of a harrowing experience. On the other hand, ABC must have also been so devastated by what she witnessed her husband doing to their daughter that she might have perceived things differently from AAA. Persons who witness an event may perceive it from different points of reference, hence they may have different accounts of how the incident took place. What is important is that their testimonies

reinforce each other on the essential facts and that their versions corroborate and substantially coincide with each other to make a consistent and coherent whole. 35 The fact therefore that the statements of AAA and ABC differ on some minor details does not in any way affect their credibility or detract from the integrity and truthfulness of their declarations. The variations in their testimonies present a believable narration of what actually happened, made more so precisely because of their imperfections.36 Cabalquinto offers a flimsy excuse in answer to the serious accusation against him. He claims that ABC's frequent spats with his brother motivated her to file the rape cases against him. It is improbable that a victim of tender years, especially one unexposed to the ways of the world as AAA must have been, would impute a crime as serious as rape to her own father if it were not true. There is no doubt in our minds that AAA was impelled solely by a desire to let justice find its way. 37 As regards ABC, we are convinced that she did not expose AAA to the ignominy that rape victims must face only to get back at Cabalquinto's brother. Had that been her motive, she would have accused Cabalquinto's brother and not Cabalquinto himself. No mother would possibly wish to stamp her child falsely with the stigma that follows a rape only for the purpose of punishing someone against whom she has no grudge whatsoever.38 ABC's zeal in prosecuting this case demonstrates to us her yearning that the law may do her daughter justice even as her own father had so depravedly wronged her. Further, the contemporaneous and subsequent conduct of mother and child are revealing of the veracity of the rape charge. It should be emphasized that upon witnessing the outrage done to her daughter, ABC immediately confronted Cabalquinto. Shortly afterwards, she confided to her sisterin-law and traveled all the way to xxx to seek her own sister's advice. The following day, mother and child went to the police to report the incident and to execute their sworn statements. ABC also took her daughter to the CPU of PGH for the latter's medical examination. These significant circumstances cannot be ignored. We are compelled to believe, especially in the face of Cabalquinto's plain denial, that AAA was indeed sexually abused and raped by her own father. Carnal knowledge of a woman under 12 years of age is rape as defined under Art. 335 of the Revised Penal Code, and is qualified when the offender is a parent of the victim, in which case, the death penalty shall be imposed as provided under the Death Penalty Law. 39 In this case, the qualifying circumstances of the victim's minority and her relationship with the accused as the latter's daughter were properly alleged in the Informations, proven during trial and not refuted by Cabalquinto. However, in view of Republic Act No. 9346 which prohibits the imposition of the death penalty, the penalty of reclusion perpetua without eligibility for parole should instead be imposed. As regards the civil liability of Cabalquinto, we affirm the award of P75,000.00 as civil indemnity for each count and additionally award AAA P75,000.00 as moral damages and P25,000.00 as exemplary damages for each count consistent with current jurisprudence. 40 Moral damages, separate and distinct from the civil indemnity, are automatically granted in rape cases. Exemplary damages, on the other hand, are imposed to deter fathers with aberrant sexual behaviors from sexually abusing their daughters.41 WHEREFORE, the decision of the Regional Trial Court of Quezon City, Branch 87, in Criminal Cases Nos. Q-98-79683 and Q-98-79684, as well as the Decision of the Court of Appeals in CAG.R. CR No. 00260, are AFFIRMED WITH MODIFICATION. Appellant MELCHOR CABALQUINTO is sentenced, in each of the criminal cases subject of this review, to suffer the penalty of reclusion

perpetua without eligibility for parole and to pay the victim, AAA (to be identified through the Informations filed with the trial court in this case), the amounts of P75,000.00 as civil indemnity, P75,000.00 as moral damages and the further sum of P25,000.00 as exemplary damages plus costs. SO ORDERED. Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, AustriaMartinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Chico-Nazario, Garcia, Velasco, Jr., J.J., concur. EN BANC G.R. No. 171270 September 20, 2006 [Formerly G.R. Nos. 153250-52] PEOPLE OF THE PHILIPPINES, appellee, vs. ALEXANDER MANGITNGIT, appellant. DECISION TINGA, J.: On automatic review is the Joint Decision 1 dated 4 January 2002 of the Regional Trial Court of Palawan and Puerto Princesa City, Branch 49,2 convicting appellant Alexander G. Mangitngit (appellant) of raping his daughters BBB and CCC,3 ages 15 and 12 respectively. The dispositive portion of the decision states: WHEREFORE, premises considered, the Court finds accused Alexander Mangitngit guilty beyond reasonable doubt of the crimes of rape in Criminal Case No. 14972 and in Criminal Case No. 14973 and imposes upon him, pursuant to R.A. 7659 and R.A. 8353, the penalty of death in each case. Accused Alexander Mangitngit is directed to pay [BBB and CCC] the amounts of P75,000.00 and P75,000.00, respectively, as moral damages. The Provincial Jail Warden of Palawan is hereby directed to immediately bring and turn over accused Alexander Mangitngit to the National Penitentiary at Muntinlupa, Rizal. Likewise, the Clerk of Court of this Court is directed to transmit and forward to the Supreme Court the records of the case, including the transcript of stenographic notes within 5 days after the 15th day following the promulgation of the judgment in these two cases. SO ORDERED.4 Initiated by sworn statements of the victims, appellant was charged with three (3) counts of rape in the following Informations, to wit: Criminal Case No. 14971 That sometime during the month of May, [sic] 1993, at around midnight, at xxx, and within the jurisdiction of this Honorable Court, the said accused with lewd design and by means of

force, threat and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge with his own daughter [AAA],5 15 years of age, against her will and consent to her damage and prejudice. CONTRARY TO LAW.6 Criminal Case No. 14972 That on or about the 21st day of January, [sic] 1999, at around 4:00 o'clock in the morning, at xxx, and within the jurisdiction of this Honorable Court, the said accused with lewd design and by means of force, threat and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge with his own daughter [BBB], 15 years of age, against her will and consent to her damage and prejudice. CONTRARY TO LAW.7 Criminal Case No. 14973 That on or about the 29th day of January, [sic] 1999, at around 2:00 o'clock in the morning, at xxx, and within the jurisdiction of this Honorable Court, the said accused with lewd design and by means of force, threat and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge with his own daughter [CCC], 12 years of age, against her will and consent to her damage and prejudice. CONTRARY TO LAW.8 At his arraignment on 17 May 1999, appellant, duly assisted by his counsel de oficio, entered a plea of not guilty to all three counts of rape. In Criminal Case No. 14971, however, private complainant AAA repeatedly failed to appear despite due notice. Appellant thus moved for the dismissal of said case invoking the right of appellant to speedy trial which the trial court granted in its Order dated 15 May 2000.9 Joint trial on the merits of Criminal Cases Nos. 14972 and 14973 ensued. In Criminal Case No. 14972, the prosecution presented as witnesses, the victim BBB and Dr. Renee A. Argubano (Dr. Argubano), Medical Officer IV of the Puerto Princesa Hospital. In Criminal Case No. 14973, CCC and Dr. Renee Argubano were the witnesses for the prosecution. BBB and CCC were born on 11 May 1984 and 6 March 1986, respectively, to appellant and his wife ABC.10 BBB testified that at around 4 o'clock in the morning of 21 January 1999, she and three other siblings were sleeping on the floor in one of the rooms in their house in xxx, when she felt someone touching her. Their mother had left the previous day for the family farm, an hour's walk away. BBB was awakened by the touch and was surprised to see her father, appellant, touching her. BBB tried to shout in fright but was not able to because appellant held her neck with both of his hands. He then removed BBB's short pants and panty with one of his hands. After removing his own short pants and brief, appellant inserted his penis into BBB's vagina and warned her not to report the incident otherwise he would kill her. While his penis was inside BBB's vagina, appellant made "push and pull" movements. BBB cried due to the excruciating pain. After satisfying himself, appellant left her. BBB continued to cry even as her vagina hurt and oozed a little blood. 11

When appellant left for the farm a little later that day, BBB went to her sister AAA's house to report her ordeal. AAA advised BBB to proceed to their aunt DDD's house in xxx. 12 BBB was still in xxx when she learned of her father's arrest on 30 January 1999 for the rape of her younger sister, CCC. This encouraged BBB to disclose her own nightmare to her mother, uncle and siblings. Then, BBB reported the matter to [the] police. On 4 February 1999, BBB, CCC, AAA and their mother proceeded to the National Bureau of Investigation where their respective sworn statements 13 were taken.14 BBB was fourteen (14) years and eight (8) months old at the time of the incident. 15 For her part, CCC testified that at around 2 o'clock in the morning of 29 January 1999, with their mother at the family farm, she was sleeping alongside her brother on the floor in one of the rooms in their family house when appellant arrived. Appellant positioned the brother away from CCC, cleared his throat and stayed near her. CCC moved away from him in fear and tried to cover herself with a blanket. Appellant asked her why she was afraid of him. Without awaiting CCC's response, appellant embraced her and started to pull down her panty. CCC resisted and tried to pull up her panty to no avail. Appellant, now naked and holding CCC's hands, inserted his penis into her vagina. When CCC complained of pain, appellant pulled out his penis but inserted it again. While ravishing her, appellant warned CCC not to report the incident otherwise he will kill her. CCC felt something come out of appellant's penis and into her vagina. She felt pain in her vagina and felt something ooze out of it. After appellant removed his penis from her vagina, CCC cried, stood up and tried to identify what caused the wetness in her panty which in the morning she discovered was blood. 16 CCC firmly declared that she was certain it was her father who raped her. Although the room was dark and the house had no electricity,17 moonlight streamed through the holes of the sawali wall and she could see the person near her. She also stated that she recognized his voice when he cleared his throat and when he spoke to her.18 The next day, while appellant was still asleep, CCC went to the family farm to fetch her mother and report the incident. Her mother cried upon hearing of CCC's suffering at the hands of appellant. With a relative, CCC's mother reported the matter to the barangay captain and later, both went to the Marine soldiers to have appellant arrested.19 CC C was only twelve (12) years and ten (10) months old at the time of the rape.20 Dr. Argubano, who conducted the physical examinations of BBB and CCC on 3 February 1999, testified that he found a laceration on the hymenal ring of BBB's vagina at the position of 3 o'clock and on CCC's vagina, a laceration also on the hymen at 3 o'clock and 9 o'clock positions. He stated that the clean-cut lacerations of the sisters, which were old and already healed, could have been caused by the insertion into the vagina of an object, most possibly a penis. Dr. Argubano explained that the lacerations of such nature normally heal in three to five days, without complication and depending on one's immune system.21 Dr. Argubano issued medico-legal certificates containing his findings.22 The trial court admitted the following documentary evidence formally offered by the prosecution: (1) medico-legal certificates of BBB and CCC; (2) photocopies of the birth certificates of BBB and CCC; and (3) sworn statement of BBB.23 Testifying as lone witness in his defense, appellant denied that he raped BBB on 21 January 1999 and CCC on 29 January 1999.24 On such dates, appellant claimed that he was in his farm in xxx, which was 30 minutes away from the family house. Appellant stated that he usually stayed and slept at the farm because he could not leave his farm animals and crops. He slept at the family house only once in two months or not at all, as he slept there only when his wife told him so. In January 1999, he had been to the family house only once, on the 17th of the month. When he arrived at the family house on said date, he noticed several cigarette butts littered around and asked his children who

had slept there. Upon being apprised by the children that they allowed their friends to sleep over whenever they watched television, he told them to refrain from continuing such practice otherwise he would hit them. Appellant also discovered from CCC that BBB had left the house to go to a fiesta. Infuriated, appellant told CCC to tell BBB that she would get it from him upon her return. Appellant then left for the farm. He had not visited the family house since. He had not seen BBB and CCC since either. He only returned to the family house on 1 February 1999 only to be immediately arrested by the Marines.25 The trial court favored BBB and CCC's version of the events and convicted appellant of the crimes charged, ruling in this wise: Ranged against this defense of denial and alibi are the declarations of complaining witnesses [BBB] and [CCC] who positively declared that their father sexually abused them on January 21, 1999 and January 29, 1999, respectively. Their testimonies were direct and straightforward and were not stained with inconsistencies. No-ill (sic) motives were imputed to them to compel them to falsely charge and falsely testify against their father. In the light of such direct and straightforward testimonies, their credibility as witness is not to be doubted. They are credible witnesses. In contrast, Philippine jurisprudence says that the defense of denial and/or alibi can't [sic] prevail over the positive declarations of the prosecution witnesses. As held by the Supreme Court, alibi is a defense easily fabricated. Distance of the place where the accused allegedly was at the time of the incident and the place where the incident happened does not preclude the possibility that the accused committed the crime (People v. Santillan, 157 SCRA 534). In the case at bar, the farm house where Alexander Mangitngit spent his days attending to his farm lot and farm animals is but a 30-minute hike to his house at [omitted] where his children lived and where the rapes were committed. It was not impossible for Alexander Mangitngit to be there at his house [omitted] at 4:00 o'clock in the morning of January 21, 1999 and 2:00 o'clock in the morning of January 29, 1999 as he had free access thereto[,] it being his house. xxxx In view of the foregoing considerations, this Court is led to believe that Alexander Mangitngit sexually abused his own daughters [BBB] aged 15 on January 21, 1999 and his own daughter [CCC] aged 12, on January 29, 1999. 26 The judgment of conviction was elevated to the Court for automatic review. The pleadings on appeal were completed on 11 December 2003.27 In a Resolution28 dated 24 August 2004 of the Court in G.R. Nos. 153250-52,29 the cases were transferred to the Court of Appeals pursuant to the Court's ruling in People v. Mateo.30 In a Decision31 dated 14 November 2005, the Court of Appeals found no compelling reason to deviate from the findings of the trial court. It held that BBB and CCC's testimonies which were direct, straightforward, free from inconsistencies and unshaken by rigid cross-examination, duly corroborated by medical evidence on record, are sufficient to support a conviction for rape. 32 In stark contrast to this, the appellate court noted that appellant only interposed the defenses of denial and alibi. Unconvinced by appellant's contention that the rape could not have possibly occurred in the presence of his other children, the appellate court emphasized the fact that lust is no respecter of time and place; the crime of rape can be consummated even when the malefactor and the victim are not alone. The appellate court likewise observed that appellant failed to demonstrate

that it was physically impossible for him to have been physically present at the place of the crime at the time of its commission. The farm at which he claimed to be at the time is a mere 30 minutes' walk from the family house where the incidents of rape transpired. 33 Anent the ill motive ascribed by appellant on BBB and CCC for filing the rape cases, the Court of Appeals held that it would take the most senseless kind of depravity for a young daughter to fabricate a story which would send her father to death, only because he disciplined her. 34 The Court of Appeals sustained the trial court's imposition of the death penalty ruling that the qualifying circumstances of the minority of the victims and their relationship to appellant have been specifically alleged in the information and duly proven during the trial. As appellant failed to raise any objections at the time they were offered in evidence, the photocopies of the birth certificates of BBB and CCC became primary evidence, were deemed admitted and he is bound thereby. 35 The Court of Appeals however imposed an additional award of P75,000.00 as civil indemnity ex delicto andP25,000.00 as exemplary damages.36 In the Court's Resolution37 dated 7 March 2006, the parties were required to submit their respective supplemental briefs. The Office of the Solicitor General manifested that it was adopting the discussions in its appellee's brief 38dated 15 September 2003 as its supplemental brief. Appellant, through the Public Attorney's Office, likewise manifested adoption of all the issues and discussion in his appellant's brief39 dated 20 May 2003. The case is again before us for final disposition. After a careful and meticulous review of the records of the case, the Court finds no reason to overturn the findings of facts and conclusions commonly reached by the trial court and the Court of Appeals. The Court affirms appellant's conviction. There are three guiding principles in the review of rape cases, to wit: (1) an accusation of rape can be made with facility and while the accusation is difficult to prove, it is even more difficult for the person accused, though innocent, to disprove; (2) considering the intrinsic nature of the crime, only two persons being usually involved, the testimony of the complainant should be scrutinized with great caution; and (3) the evidence for the prosecution must stand or fall on its own merit, and cannot be allowed to draw strength from the weakness of the evidence for the defense.40 Accordingly, in resolving rape cases, primordial consideration is given to the credibility of the victim's testimony.41 If the testimony of the victim is credible, natural, convincing and consistent with human nature, and the normal course of things, the accused may be convicted solely on the victim's testimony.42 It is likewise a settled principle that the trial court's evaluation of the credibility of witnesses is viewed as correct and entitled to the highest respect because it is more competent to so conclude, having had the opportunity to observe the witnesses' demeanor and deportment on the stand, and the manner in which they gave their testimony. Unless the trial judge plainly overlooked certain facts of substance and value which, if considered, might affect the result of the case, his assessment on credibility must be respected.43 In the cases at bar, the trial court in its joint disposition characterized BBB and CCC's testimonies as "direct, straightforward and not stained with inconsistencies." 44 The trial court did not find any ill motive ascribable to the sisters that would impel them to falsely charge and testify against their father. In light of the sisters' testimonies, the trial court declared that their "credibility as a witness is not to be doubted. They are credible witnesses."45 The trial court likewise made the following observations, thus:

[BBB] was 15 years old when the alleged sexual abuse on her took place. Likewise, [CCC] was, (sic) 12 years old when the alleged sexual abuse on her took place. At such young ages and living in a rural area, these young girls are detached from a sophisticated environment. When they appeared and testified in Court, their demeanor depicts a picture that they are young innocent girls, nave and inexperienced in the ways of the world. For this reason and in accord with the principle enunciated by the Supreme Court that no young Filipina of decent repute would publicly admit that she had been criminally abused and ravished unless that is the truth (People vs. Aurero, 165 SCRA 130; People vs. Madarang, 160 SCRA 153; People vs. Bulosan, 160 SCRA 492) and coupled with the absence of proof of ill-motives on the part of BBB and CCC in charging and testifying that their father Alexander sexually abused them, this Court has to believe their account of the sexual abuse heaped on them by their own father. 46 Both BBB and CCC testified in a candid, vivid and convincing manner which leaves no room for doubt that they in fact were ravished by their own father. CCC even resolutely stressed that she was certain it was her father who raped her as moonlight streamed through the holes of the sawali wall enabling her to identify him. She also recognized his voice when he cleared his throat and when he spoke to her. 47 We reiterate that a rape victim's testimony against her parent is entitled to great weight since Filipino children have a natural reverence and respect for their elders. These values are so deeply ingrained in Filipino families and it is unthinkable for a daughter, or daughters in this case, to brazenly concoct a story of rape against their/her father, if such were not true. 48 Moreover, courts give full weight and credence to testimonies of child-victims of rape. Youth and immaturity are generally badges of truth.49 It is highly improbable that 12-year old and 15-year old girl like CCC and BBB would impute a crime as serious as rape to their own father, undergo the humiliation of a public trial and put up with the shame, humiliation and dishonor of exposing their own degradation were it not to condemn an injustice and to have the offender apprehended and punished.50 More especially in BBB's case, already in her teen and self-conscious years, the embarrassment and stigma of allowing an examination of her private parts and testifying in open court on the painfully intimate details of her ravishment by her father effectively rule out the possibility of false accusations of rape.51 Appellant's contention then that BBB and CCC filed the cases because he had threatened to harm them for their respective offenses could not be believed. As held by the Court in People v. Rosario,52 "[i]t would take the most senseless kind of depravity for a young daughter to fabricate a story which would send her father to death only because he disciplined her. Verily, no child in her right mind would concoct a story of defloration against her own father and expose her whole family to the stigma and disgrace associated with incestuous rape, if only to free herself from an overweening and strict parent who only happens to enforce parental guidance and discipline." 53 Besides, motives such as resentment, hatred or revenge have never swayed this Court from giving full credence to the testimony of a minor rape victim. 54 Significantly, BBB and CCC's claims of sexual violations were corroborated by Dr. Argubano's medical findings which were presented to the court at the trial. 55 BBB's hymen showed the old and healed lacerations at 3 o'clock while CCC's hymen, at 3 o'clock and 9 o'clock positions. As Dr. Argubano testified, they could have resulted from the insertion into the vagina of an object like a penis.56 Hymenal lacerations, whether healed or fresh, are the best evidence of forcible defloration.57 And when the consistent and forthright testimony of a rape victim is consistent with

medical findings, there is sufficient basis to warrant a conclusion that the essential requisites of carnal knowledge have been established.58 Against the overwhelming evidence of the prosecution, appellant merely interposed the defenses of denial and alibi. He denies ever raping BBB and CCC as he claimed to be at the farm at the time of the commission of the crimes. In addition, he contends that if indeed BBB was raped while she was sleeping beside her siblings in the room, it is highly strange that none of the siblings noticed the commotion. Moreover, the floor of the room was only made of bamboo which would have surely created a noise and alerted persons nearby. 59 Having been positively and unmistakably identified by BBB and CCC as their rapist, appellant's unsubstantiated and uncorroborated defenses of denial and alibi cannot prosper. The settled jurisprudence is that categorical and consistent positive identification, absent any showing of ill motive on the part of the eyewitness testifying thereon, prevails over the defenses of denial and alibi which, if not substantiated by clear and convincing proof, as in the cases at bar, constitute selfserving evidence undeserving of weight in law.60 Alibi, like denial, is also inherently weak and easily fabricated. For this defense to justify an acquittal, the following must be established: the presence of the accused in another place at the time of the commission of the offense and the physical impossibility for him to be at the scene of the crime. These requisites have not been met.61Appellant claimed to be at farm during the commission of the crimes. Considering that the farm is a mere 30 minute walk away from the family house, as he had declared, it would have still been physically possible for him to be present at the scene of the crimes at the time of their consummation.62 Appellant's other contention that the rape could not have possibly occurred in the presence of his other children, and without the latter noticing the commotion, is likewise untenable. In the case of People v. Agsaoay, Jr.,63wherein accused-appellant made a similar assertion, we ruled as follows: It is not strange for appellant to have committed rape in a small room. In many rape cases that have reached this Court, we observed that rape is not always committed in seclusion. We never cease to be appalled at the extreme depravity of the rapists who are not deterred from committing their odious act even in unlikely places such as a cramped room where other family members also slept. Rape may take only a short time to consummate, given the anxiety and high risk of being caught, especially when committed near sleeping persons oblivious to the goings-on. Indeed, lust is no respecter of time or place. 64 In sum, the trial court and the Court of Appeals correctly found appellant guilty of raping his daughters BBB and CCC pursuant to Article 266-B of the Revised Penal Code which warrants the imposition of the death penalty. The special qualifying circumstances of the victims' minority and their relationship to appellant as the latter's daughters were properly alleged in the Informations. They were also duly proven during the trial through the victims' testimonies supported by photocopies of their birth certificates which were admitted as evidence and not objected to by appellant. Having failed to dispute the contents of the photocopied birth certificates and raise a valid and timely objection against the presentation of these as secondary evidence, the same became primary evidence and deemed admitted and appellant is bound thereby. 65 In view, however, of Republic Act No. 9346, which prohibits the imposition of the death penalty, the penalty ofreclusion perpetua without eligibility for parole should instead be imposed. 66 With respect to appellant's civil liability, we affirm the award of P75,000.00 as civil indemnity and P25,000.00 as exemplary damages for each case. In addition, we award BBB and

CCC P75,000.00 each as moral damages in accordance with jurisprudence. 67 Moral damages, separate and distinct from the civil indemnity, are automatically granted in rape cases. 68 WHEREFORE, the decision of the Regional Trial Court of Palawan and Puerto Princesa City, Branch 49, in Criminal Cases Nos. 14972-14973, as well as the Decision of the Court of Appeals in CA-G.R. CR-HC No. 01386, are AFFIRMED WITH MODIFICATION. Appellant ALEXANDER MANGITNGIT is sentenced, in each of the criminal cases subject of this review, to suffer the penalty of reclusion perpetua without eligibility for parole and to pay each of the victims (to be identified in the Informations in this case), the amounts of P75,000.00 as civil indemnity,P75,000.00 as moral damages and P25,000.00 as exemplary damages, plus costs. SO ORDERED. Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, AustriaMartinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Chico-Nazario, Garcia, Velasco, Jr., J.J., concur. EN BANC G.R. No. L-17014 August 11, 1921

MARIANO B. ARROYO, plaintiff-appellant, vs. DOLORES C. VASQUEZ DE ARROYO, defendant-appellee. Fisher & DeWitt for appellant. Powell & Hill for appellee. STREET, J.: Mariano B. Arroyo and Dolores C. Vasquez de Arroyo were united in the bonds of wedlock by marriage in the year 1910, and since that date, with a few short intervals of separation, they have lived together as man and wife in the city of Iloilo until July 4, 1920, when the wife went away from their common home with the intention of living thenceforth separate from her husband. After efforts had been made by the husband without avail to induce her to resume marital relations, this action was initiated by him to compel her to return to the matrimonial home and live with him as a dutiful wife. The defendant answered, admitting the fact of marriage, and that she had left her husband's home without his consent; but she averred by way of defense and cross-complaint that she had been compelled to leave by cruel treatment on the part of her husband. Accordingly she in turn prayed for affirmative relief, to consist of (1) a decree of separation; (2) a liquidation of the conjugal partnership; (3) and an allowance for counsel fees and permanent separate maintenance. Upon hearing the cause the lower court gave judgment in favor of the defendant, authorizing her to live apart from her husband, granting her alimony at the rate of P400 per month, and directing that the plaintiff should pay to the defendant's attorney the sum of P1,000 for his services to defendant in the trial of the case. The plaintiff thereupon removed the case with the usual formalities by appeal to this court. The trial judge, upon consideration of the evidence before him, reached the conclusion that the husband was more to blame than his wife and that his continued ill-treatment of her furnished sufficient justification for her abandonment of the conjugal home and the permanent breaking off of marital relations with him. We have carefully examined and weighed every line of the proof, and are

of the opinion that the conclusion stated is wholly untenable. The evidence shows that the wife is afflicted with a disposition of jealousy towards her husband in an aggravated degree; and to his cause are chiefly traceable without a doubt the many miseries that have attended their married life. In view of the decision which we are to pronounce nothing will be said in this opinion which will make the resumption of married relations more difficult to them or serve as a reminder to either of the mistakes of the past; and we prefer to record the fact that so far as the proof in this record shows neither of the spouses has at any time been guilty of conjugal infidelity, or has given just cause to the other to suspect illicit relations with any person. The tales of cruelty on the part of the husband towards the wife, which are the basis of the cross-action, are in our opinion no more than highly colored versions of personal wrangles in which the spouses have allowed themselves from time to time to become involved and would have little significance apart from the morbid condition exhibited by the wife. The judgment must therefore be recorded that the abandonment by her of the marital home was without sufficient justification in fact. In examining the legal questions involved, it will be found convenient to dispose first of the defendant's cross-complaint. To begin with, the obligation which the law imposes on the husband to maintain the wife is a duty universally recognized in civil society and is clearly expressed in articles 142 and 143 of the Civil code. The enforcement of this obligation by the wife against the husband is not conditioned upon the procurance of a divorce by her, nor even upon the existence of a cause for divorce. Accordingly it had been determined that where the wife is forced to leave the matrimonial abode and to live apart from her husband, she can, in this jurisdiction, compel him to make provision for her separate maintenance (Goitia vs. Campos Rueda, 35 Phil., 252); and he may be required to pay the expenses, including attorney's fees, necessarily incurred in enforcing such obligation, (Mercado vs. Ostrand and Ruiz, 37 Phil., 179.) Nevertheless, the interests of both parties as well as of society at large require that the courts should move with caution in enforcing the duty to provide for the separate maintenance of the wife, for this step involves a recognition of the de facto separation of the spouses a state which is abnormal and fraught with grave danger to all concerned. From this consideration it follows that provision should not be made for separate maintenance in favor of the wife unless it appears that the continued cohabitation of the pair has become impossible and separation necessary from the fault of the husband. In Davidson vs Davidson, the Supreme Court of Michigan, speaking through the eminent jurist, Judge Thomas M. Cooley, held that an action for the support of the wife separate from the husband will only be sustained when the reasons for it are imperative (47 Mich., 151). That imperative necessity is the only ground on which such a proceeding can be maintained also appears from the decision in Schindel vs. Schindel (12 Md., 294). In the State of South Carolina, where judicial divorces have never been procurable on any ground, the Supreme court fully recognizes the right of the wife to have provision for separate maintenance, where it is impossible for her to continue safely to cohabit with her husband; but the same court has more than once rejected the petition of the wife for separate maintenance where it appeared that the husband's alleged cruelty or ill-treatment was provoked by the wife's own improper conduct. (Rhame vs. Rhame, 1 McCord's Chan. [S. Car.], 197; 16 Am. Dec., 597; Boydvs. Boyd, Har. Eq. [S. Car.], 144.) Upon one occasion Sir William Scott, pronouncing the judgment of the English Ecclesiastical Court in a case where cruelty on the part of the husband was relied upon to secure a divorce for the wife, made use of the following eloquent words, which are perhaps even more applicable in a proceeding for separate maintenance in a jurisdiction where, as here, a divorce cannot be obtained except on the single ground of adultery and this, too, after the conviction of the guilty spouse in a criminal prosecution for that crime. Said he: That the duty of cohabitation is released by the cruelty of one of the parties is admitted, but the question occurs, What is cruelty? . . .

What merely wounds the mental feelings is in few cases to be admitted where they are not accompanied with bodily injury, either actual or menaced. Mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention and accommodation, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to legal cruelty: they are high moral offenses in the marriage-state undoubtedly, not innocent surely in any state of life, but still they are not that cruelty against which the law can relieve. Under such misconduct of either of the parties, for it may exist on the one side as well as on the other, the suffering party must bear in some degree the consequences of an injudicious connection; must subdue by decent resistance or by prudent conciliation; and if this cannot be done, both must suffer in silence. . . . The humanity of the court has been loudly and repeatedly invoked. Humanity is the second virtue of courts, but undoubtedly the first is justice. If it were a question of humanity simply, and of humanity which confined its views merely to the happiness of the present parties, it would be a question easily decided upon first impressions. Every body must feel a wish to sever those who wish to live separate from each other, who cannot live together with any degree of harmony, and consequently with any degree of happiness; but my situation does not allow me to indulge the feelings, much less the first feelings of an individual. The law has said that married persons shall not be legally separated upon the mere disinclination of one or both to cohabit together. . . . To vindicate the policy of the law is no necessary part of the office of a judge; but if it were, it would not be difficult to show that the law in this respect has acted with its usual wisdom and humanity with that true wisdom, and that real humanity, that regards the general interests of mankind. For though in particular cases the repugnance of the law to dissolve the obligations of matrimonial cohabitation may operate with great severity upon individual, yet it must be carefully remembered that the general happiness of the married life is secured by its indissolubility. When people understand that they must live together, except for a very few reasons known to the law, they learn to soften by mutual accommodation that yoke which they know cannot shake off; they become good husbands and good wives form the necessity of remaining husbands and wives; for necessity is a powerful master in teaching the duties which it imposes. . . . In this case, as in many others, the happiness of some individuals must be sacrificed to the greater and more general good. (Evans vs. Evans, 1 Hag. Con., 35; 161 Eng. Reprint, 466, 467.) In the light of the considerations stated, it is obvious that the cross-complaint is not well founded and none of the relief sought therein can be granted. The same considerations that require the dismissal of the cross-complaint conclusively prove that the plaintiff, Mariano B. Arroyo, has done nothing to forfeit his right to the marital society of his wife and that she is under an obligation, both moral and legal, to return to the common home and cohabit with him. The only question which here arises is as to the character and extent of the relief which may be properly conceded to him by judicial decree. The action is one by which the plaintiff seeks the restitution of conjugal rights; and it is supposed in the petitory part of the complaint that he is entitled to a permanent mandatory injunction requiring the defendant to return to the conjugal home and live with him as a wife according to the precepts of law and morality. Of course if such a decree were entered, in unqualified terms, the defendant would be liable to attachment for contempt, in case she should refuse to obey it; and, so far as the present writer is aware, the question is raised for the first time in this jurisdiction whether it is competent for the court to make such an order.

Upon examination of the authorities we are convinced that it is not within the province of the courts of this country to attempt to compel one of the spouses to cohabit with, and render conjugal rights to, the other. Of course where the property rights of one of the pair are invaled, an action for restitution of such rights can be maintained. But we are disinclined to sanction the doctrine that an order, enforcible by process of contempt, may be entered to compel the restitution of the purely personal rights of consortium. At best such an order can be effective for no other purpose than to compel the spouses to live under the same roof; and the experience of these countries where the court of justice have assumed to compel the cohabitation of married people shows that the policy of the practice is extremely questionable. Thus in England, formerly the Ecclesiastical Court entertained suits for the restitution of conjugal rights at the instance of either husband or wife; and if the facts were found to warrant it that court would make a mandatory decree, enforcible by process of contempt in case of disobedience, requiring the delinquent party to live with the other and render conjugal rights. Yet this practice was sometimes criticized even by the judges who felt bound to enforce such orders, and in Weldon vs. Weldon (9 P. D., 52), decided in 1883, Sir James Hannen, President in the Probate, Divorce and Admiralty Division of the High Court of Justice, expressed his regret that the English law on the subject was not the same as that which prevailed in Scotland, where a decree of adherence, equivalent to the decree for the restitution of conjugal rights in England, could be obtained by the injured spouse, but could not be enforced by imprisonment. Accordingly, in obedience to the growing sentiment against the practice, the Matrimonial Causes Act (1884) abolished the remedy of imprisonment; though a decree for the restitution of conjugal rights can still be procured, and in case of disobedience may serve in appropriate cases as the basis of an order for the periodical payment of a stipend in the character of alimony. In the voluminous jurisprudence of the United States, only one court, so far as we can discover, has ever attempted to make a peremptory order requiring one of the spouses to live with the other; and that was in a case where a wife was ordered to follow and live with her husband, who had changed his domicile to the City of New Orleans. The decision referred to (Gahn vs. Darby, 36 La. Ann., 70) was based on a provision of the Civil Code of Louisiana similar to article 56 of the Spanish Civil Code. It was decided many years ago, and the doctrine evidently has not been fruitful even in the State of Louisiana. In other states of the American Union the idea of enforcing cohabitation by process of contempt is rejected. (21 Cyc., 1148.) In a decision of January 2, 1909, the supreme court of Spain appears to have affirmed an order of the Audencia Territorial de Valladolid requiring a wife to return to the marital domicile, and in the alternative, upon her failure to do so, to make a particular disposition of certain money and effects then in her possession and to deliver to her husband, as administrator of the ganancial property, all income, rents, and interest which might accrue to her from the property which she had brought to the marriage. (113 Jur. Civ., pp. 1, 11.) but it does not appear that this order for the return of the wife to the marital domicile was sanctioned by any other penalty than the consequences that would be visited upon her in respect to the use and control of her property; and it does not appear that her disobedience to that order would necessarily have been followed by imprisonment for contempt. We are therefore unable to hold that Mariano B. Arroyo in this case is entitled to the unconditional and absolute order for the return of the wife to the marital domicile, which is sought in the petitory part of the complaint; though he is, without doubt, entitled to a judicial declaration that his wife has presented herself without sufficient cause and that it is her duty to return. Therefore, reversing the judgment appealed from, in respect both to the original complaint and the cross-bill, it is declared that Dolores Vasquez de Arroyo has absented herself from the marital home without sufficient cause; and she is admonished that it is her duty to return. The plaintiff is absolved from the cross-complaint, without special pronouncement as to costs of either instance. So ordered.

Mapa, C.J., Johnson, Araullo, Avancea and Villamor, JJ., concur.

EN BANC

[A.C. No. 3405. June 29, 1998]

JULIETA B. NARAG, complainant, vs. ATTY. NARAG, respondent. DECISION

PER CURIAM:

DOMINADOR

M.

Good moral character is a continuing qualification required of every member of the bar. Thus, when a lawyer fails to meet the exacting standard of moral integrity, the Supreme Court may withdraw his or her privilege to practice law. On November 13, 1989, Mrs. Julieta B. Narag filed an administrative complaint [1] for disbarment against her husband, Atty. Dominador M. Narag, whom she accused of having violated Canons 1 and 6, Rule 1.01 of the Code of Ethics for Lawyers. [2] The complainant narrated:

The St. Louis College of Tuguegarao engaged the services of Atty. Dominador M. Narag in the early seventies as a full-time college instructor in the College of Arts and Sciences and as a professor in the Graduate School. In 1984, Ms. Gina Espita, 17 years old and a first year college student, enrolled in subjects handled by Atty. Narag. Exerting his influence as her teacher, and as a prominent member of the legal profession and then member of the Sangguniang Bayan of Tuguegarao, Atty. Narag courted Ms. Espita, gradually lessening her resistance until the student acceded to his wishes. They then maintained an illicit relationship known in various circles in the community, but which they managed to keep from me. It therefore came as a terrible embar[r]assment to me, with unspeakable grief and pain when my husband abandoned us, his family, to live with Ms. Espita, in utterly scandalous circumstances. It appears that Atty. Narag used his power and influence as a member of the Sangguniang Panlalawigan of Cagayan to cause the employment of Ms. Espita at the Department of Trade and Industry Central Office at Makati, Metro Manila. Out of gratitude perhaps, for this gesture, Ms.

Espita agreed to live with Atty. Narag, her sense of right[e]ousness and morals completely corrupted by a member of the Bar. It is now a common knowledge in the community that Atty. Dominador M. Narag has abandoned us, his family, to live with a 22-year-old woman, who was his former student in the tertiary level[.][3]
This Court, in a Resolution dated December 18, 1989, referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. [4] On June 26, 1990, the office of then Chief Justice Marcelo B. Fernan received from complainant another letter seeking the dismissal of the administrative complaint. She alleged therein that (1) she fabricated the allegations in her complaint to humiliate and spite her husband; (2) all the love letters between the respondent and Gina Espita were forgeries; and (3) she was suffering from emotional confusion arising from extreme jealousy. The truth, she stated, was that her husband had remained a faithful and responsible family man. She further asserted that he had neither entered into an amorous relationship with one Gina Espita nor abandoned his family. [5] Supporting her letter were an Affidavit of Desistance [6] and a Motion to Dismiss,[7] attached as Annexes A and B, which she filed before the IBP commission on bar discipline. [8] In a Decision dated October 8, 1991, the IBP Board of Governors [9] dismissed the complaint of Mrs. Narag for failure to prosecute.[10] The case took an unexpected turn when, on November 25, 1991, this Court[11] received another letter[12] from the complainant, with her seven children [13] as cosignatories, again appealing for the disbarment of her husband. She explained that she had earlier dropped the case against him because of his continuous threats against her.
[14]

In his Comment on the complainants letter of November 11, 1991, filed in compliance with this Courts Resolution issued on July 6, 1992, [15] respondent prayed that the decision of the Board of Governors be affirmed. Denying that he had threatened, harassed or intimidated his wife, he alleged that she had voluntarily executed her Affidavit of Desistance[16] and Motion to Dismiss,[17] even appearing before the investigating officer, Commissioner Racela, to testify under oath that she prepared the Motion to Dismiss and Affidavit of Desistance on her own free will and affirmed the contents thereof. In addition, he professed his love for his wife and his children and denied abandoning his family to live with his paramour. However, he described his wife as a person emotionally disturbed, viz.:

What is pitiable here is the fact that Complainant is an incurably jealous and possessive woman, and every time the streak of jealousy rears its head, she fires off letters or complaints against her husband in every conceivable forum, all without basis, and purely on impulse, just to satisfy the consuming demands of her loving jealousy. Then, as is her nature, a few hours afterwards, when her jealousy cools off, she

repents and feels sorry for her acts against the Respondent. Thus, when she wrote the Letter of November 11, 1991, she was then in the grips of one of her bouts of jealousy.[18]
On August 24, 1992, this Court issued another Resolution referring the Comment of respondent to the IBP.[19] In the hearing before IBP Commissioner Plaridel C. Jose, respondent alleged the following:[20]

2. Your Respondent comes from very poor parents who have left him not even a square meter of land, but gave him the best legacy in life: a purposeful and meaningful education. Complainant comes from what she claims to be very rich parents who value material possession more than education and the higher and nobler aspirations in life. Complainant abhors the poor. 3. Your Respondent has a loving upbringing, nurtured in the gentle ways of love, forgiveness, humility, and concern for the poor. Complainant was reared and raised in an entirely different environment. Her value system is the very opposite. 4. Your Respondent loves his family very dearly, and has done all he could in thirty-eight (38) years of marriage to protect and preserve his family. He gave his family sustenance, a comfortable home, love, education, companionship, and most of all, a good and respected name. He was always gentle and compassionate to his wife and children. Even in the most trying times, he remained calm and never inflicted violence on them. His children are all now full-fledged professionals, mature, and gainfully employed. x x x xxx xxx xxx

Your Respondent subscribes to the sanctity of marriage as a social institution. On the other hand, consumed by insane and unbearable jealousy, Complainant has been systematically and unceasingly destroying the very foundations of their marriage and their family. Their marriage has become a torture chamber in which Your Respondent has been incessantly BEATEN, BATTERED, BRUTALIZED, TORTURED, ABUSED, and HUMILIATED, physically, mentally, and emotionally, by the Complainant, in public and at home. Their marriage has become a nightmare. For thirty-eight years, your Respondent suffered in silence and bore the pain of his misfortune with dignity and with almost infinite patience, if

only to preserve their family and their marriage. But this is not to be. The Complainant never mellowed and never became gentl[e], loving, and understanding. In fact, she became more fierce and predatory. Hence, at this point in time, the light at the tunnel for Your Respondent does not seem in sight. The darkness continues to shroud the marital and familial landscape. Your Respondent has to undergo a catharsis, a liberation from enslavement. Paraphrasing Dorfman in Death and the Maiden, can the torturer and the tortured co-exist and live together? Hence, faced with an absolutely uncomprehending and uncompromising mind whose only obsession now is to destroy, destroy, and destroy, Your Respondent, with perpetual regret and with great sorrow, filed a Petition for Annulment of Marriage, Spl. Proc. No. 566, RTC, Branch III, Tuguegarao, Cagayan. x x x. 5. Complainant is a violent husband-beater, vitriolic and unbending. But your Respondent never revealed these destructive qualities to other people. He preserved the good name and dignity of his wife. This is in compliance with the marital vow to love, honor or obey your spouse, for better or for worse, in sickness and in health. . . Even in this case, Your Respondent never revealed anything derogatory to his wife. It is only now that he is constrained to reveal all these things to defend himself. On the other hand, for no reason at all, except a jealous rage, Complainant tells everyone, everywhere, that her husband is worthless, good-for-nothing, evil and immoral. She goes to colleges and universities, professional organizations, religious societies, and all other sectors of the community to tell them how evil, bad and immoral her husband is. She tells them not to hire him as professor, as Counsel, or any other capacity because her husband is evil, bad, and immoral. Is this love? Since when did love become an instrument to destroy a mans dearest possession in life - his good name, reputation and dignity? Because of Complainants virulent disinformation campaign against her husband, employing every unethical and immoral means to attain his ends, Your Respondent has been irreparably and irreversibly disgraced, shamed, and humiliated. Your Respondent is not a

scandalous man. It is he who has been mercilessly scandalized and crucified by the Complainant.[21]
To prove the alleged propensity of his wife to file false charges, respondent presented as evidence the following list of the complaints she had filed against him and Gina Espita:

3.1 Complaint for Immorality/Neglect of Duty x x x 3.2 Complaint for Immorality/Neglect of Duty, DILG, Adm. Case No. P-5-90. x x x 3.3 Complaint for Concubinage. Provincial Prosecutors Office of Cagayan. I.S No. 89-114. x x x 3.4 Complaint for Anti-Graft and Corrupt Practices and concubinage. OMBUDSMAN Case No. 1-92-0083. x x x 3.5 Complaint for Civil Support. RTC, Tuguegarao, Civil Case No. 4061. DISMISSED. 3.6 Complaint for Concubinage. Provincial Prosecutors Office of Cagayan. I.S. No. 92-109. DISMISSED. (x x x). Complainant filed Motion for Reconsideration. DENIED. (x x x). 3.7 Complaint for Disbarment (x x x) with S[upreme] C[ourt]. Withdrawn (x x x). DISMISSED by IBP Board of Governors (x x x). Re-instituted (x x x). 3.8 Complaint for Disbarment, again (x x x). Adm. Case No. 3405. Pending. 3.9 Complaint for Concubinage, again (x x x). Third MCTC, Tumauini, Isabela. Pending. x x x[22]
In his desperate effort to exculpate himself, he averred:

I. That all the alleged love letters and envelopes (x x x), picture (x x x) are inadmissible in evidence as enunciated by the Supreme Court in Cecilia Zulueta vs. Court of Appeals, et. al., G.R. No. 107383, February 20, 1996. (x x x).
xxx xxx xxx

II. That respondent is totally innocent of the charges: He never courted Gina Espita in the Saint Louis College of Tuguegarao. He never caused the employment of said woman in the DTI. He never had or is having any illicit relationship with her anywhere, at any time. He never lived with her as husband and wife anywhere at any time, be it in Centro Tumauini or any of its barangays, or in any other place. He never begot a child or children with her. Finally, respondent submits that all the other allegations of Mrs. Narag are false and fabricated, x x x

xxx

xxx

xxx

III. Respondent never abandoned his family[.] Mrs. Narag and her two sons forcibly drove respondent Narag out of the conjugal home. After that, Atty. Narag tried to return to the conjugal home many times with the help of mutual friends to save the marriage and the family from collapse. He tried several times to reconcile with Mrs. Narag. In fact, in one of the hearings of the disbarment case, he offered to return home and to reconcile with Mrs. Narag. But Mrs. Narag refused all these efforts of respondent Narag. x x x IV. Complainant Julieta B. Narag is an unbearably jealous, violent, vindictive, scandalous, virulent and merciless wife since the beginning of the marriage, who incessantly beat, battered, brutalized, tortured, abuse[d], scandalized, and humiliated respondent Atty. Narag, physically, mentally, emotionally, and psychologically, x x x. V. Complainant Julieta Narags claim in her countermanifestation dated March 28, 1996, to the effect that the affidavit of Dominador B. Narag, Jr., dated February 27, 1996 was obtained through force and intimidation, is not true. Dominador, Jr., executed his affidavit freely, voluntarily, and absolutely without force or intimidation, as shown by the transcript of stenographic notes of the testimonies of Respondent Atty. Narag and Tuguegarao MTC Judge Dominador Garcia during the trial of Criminal Case No. 12439, People vs. Dominador M. Narag, et. al., before the Tuguegarao MTC on May 3, 1996. x x x.
xxx xxx xxx

VI. Respondent Atty. Narag is now an old man - a senior citizen of 63 years - sickly, abandoned, disgraced, weakened and debilitated by progressively degenerative gout and arthritis, and hardly able to earn his own keep. His very physical, medical, psychological, and economic conditions render him unfit and unable to do the things attributed to him by the complainant. Please see the attached medical certificates, x x x, among many other similar certificates touching on the same ailments. Respondent is also suffering from hypertension.[23]
On July 18, 1997, the investigating officer submitted his report, [24] recommending the indefinite suspension of Atty. Narag from the practice of law. The material portions of said report read as follows:

Culled from the voluminous documentary and testimonial evidence submitted by the contending parties, two (2) issues are relevant for the disposition of the case, namely: a) Whether there was indeed a commission of alleged abandonment of respondents own family and [whether he was] living with his paramour, Gina Espita; b) Whether the denial under oath that his illegitimate children with Gina Espita (Aurelle Dominic and Kyle Dominador) as appearing on paragraph 1(g) of respondents Comment vis-a-vis his handwritten love letters, the due execution and contents of which, although he objected to their admissibility for being allegedly forgeries, were never denied by him on the witness stand much less presented and offered proof to support otherwise. Except for the testimonies of respondents witnesses whose testimonies tend to depict the complaining wife, Mrs. Narag, as an incurably jealous wife and possessive woman suffering everytime with streaks of jealousy, respondent did not present himself on the witness stand to testify and be cross-examined on his sworn comment; much less did he present his alleged paramour, Gina Espita, to disprove the adulterous relationship between him and their having begotten their illegitimate children, namely: Aurelle Dominic N. Espita and Kyle Dominador N. Espita. Worse, respondents denial that he is the father of the two is a ground for disciplinary sanction (Morcayda v. Naz, 125 SCRA 467). Viewed from all the evidence presented, we find the respondent subject to disciplinary action as a member of the legal profession.[25]
In its Resolution[26] issued on August 23, 1997, the IBP adopted and approved the investigating commissioners recommendation for the indefinite suspension of the respondent.[27] Subsequently, the complainant sought the disbarment of her husband in a Manifestation/Comment she filed on October 20, 1997. The IBP granted this stiffer penalty and, in its Resolution dated November 30, 1997, denied respondents Motion for Reconsideration. After a careful scrutiny of the records of the proceedings and the evidence presented by the parties, we find that the conduct of respondent warrants the imposition of the penalty of disbarment. The Code of Professional Responsibility provides:

Rule 1.01-- A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

CANON 7-- A lawyer shall at all times uphold the integrity and dignity of the legal profession, and support the activities of the Integrated Bar. Rule 7.03-- A lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor should he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.
Thus, good moral character is not only a condition precedent [28] to the practice of law, but a continuing qualification for all members of the bar. Hence, when a lawyer is found guilty of gross immoral conduct, he may be suspended or disbarred. [29] Immoral conduct has been defined as that conduct which is so willful, flagrant, or shameless as to show indifference to the opinion of good and respectable members of the community.[30] Furthermore, such conduct must not only be immoral, but grossly immoral. That is, it must be so corrupt as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree [31] or committed under such scandalous or revolting circumstances as to shock the common sense of decency. [32] We explained in Barrientos vs. Daarol[33] that, as officers of the court, lawyers must not only in fact be of good moral character but must also be seen to be of good moral character and leading lives in accordance with the highest moral standards of the community. More specifically, a member of the Bar and officer of the court is not only required to refrain from adulterous relationships or the keeping of mistresses but must also so behave himself as to avoid scandalizing the public by creating the belief that he is flouting those moral standards. Respondent Narag is accused of gross immorality for abandoning his family in order to live with Gina Espita. The burden of proof rests upon the complainant, and the Court will exercise its disciplinary power only if she establishes her case by clear, convincing and satisfactory evidence.[34] Presented by complainant as witnesses, aside from herself, [35] were: Charlie Espita, [36] Magdalena Bautista,[37] Bienvenido Eugenio,[38] Alice Carag,[39] Dr. Jervis B. Narag, [40] Dominador Narag, Jr.,[41] and Nieves F. Reyes.[42] Charlie Espita, brother of the alleged paramour Gina Espita, corroborated complainants charge against respondent in these categorical statements he gave to the investigating officer:
Q A Q A Q Mr. Witness, do you know Atty. Narag? Yes, Your Honor, he is the live-in partner of my sister, Gina Espita. If Atty. Narag is here, can you point [to] him? Yes, sir. (Witness pointed to the respondent, Atty. Dominador Narag) Why do you know Atty. Narag?

ATTY. NARAG: Already answered. He said I am the live-in partner. CONTINUATION OF THE DIRECT A Because he is the live-in partner of my sister and that they are now living together as husband and wife and that they already have two children, Aurelle Dominic and Kyle Dominador.

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During cross-examination conducted by the respondent himself, Charlie Espita repeated his account that his sister Gina was living with the respondent, with whom she had two children:
Q A Q A Mr. Espita, you claim that Atty. Narag is now living with your sister as husband and wife. You claim that? Yes, sir. Why do you say that? Because at present you are living together as husband and wife and you have already two children and I know that that is really an immoral act which you cannot just allow me to follow since my moral values dont allow me that my sister is living with a married man like you. How do you know that Atty. Narag is living with your sister? Did you see them in the house? Yes, si[r].

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You said also that Atty. Narag and your sister have two children, Aurelle Dominic and Kyle Dominador, is it not? Yes, sir. How do you know that they are the children of Atty. Narag? Because you are staying together in that house and you have left your family.[44]

In addition, Charlie Espita admitted (1) that it was he who handed to Mrs. Narag the love letters respondent had sent to his sister, and (2) that Atty. Narag tried to dissuade him from appearing at the disbarment proceedings. [45] Witness Bienvenido Eugenio strengthened the testimony of Charlie Espita in this wise:
Q A Q A Mr. Witness, do you know the respondent in this case? I know him very well, sir. Could you please tell us why do you know him? Because he was always going to the house of my son-in-law by the name of Charlie Espita.

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Mr. Eugenio, do you know the residence of Atty. Dominador M. Narag? At that time, he [was] residing in the house of Reynaldo Angubong, sir. And this is located where? Centro Tamauini, Isabela, sir. And you specifically, categorically state under oath that this is the residence of Atty. Narag? Yes, sir.

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And under oath this is where Atty. Narag and Gina Espita are allegedly living as husband and wife, is it not? Yes, sir.[46]

Witness Nieves Reyes, a neighbor and friend of the estranged couple, testified that she learned from the Narag children -- Randy, Bong and Rowena -- that their father left his family, that she and her husband prodded the complainant to accept the respondent back, that the Narag couple again separated when the respondent went back to his woman, and that Atty. Narag had maltreated his wife. [47] On the strength of the testimony of her witnesses, the complainant was able to establish that respondent abandoned his family and lived with another woman. Absent any evidence showing that these witnesses had an ill motive to testify falsely against the respondent, their testimonies are deemed worthy of belief. Further, the complainant presented as evidence the love letters that respondent had sent to Gina. In these letters, respondent clearly manifested his love for Gina and her two children, whom he acknowledged as his own. In addition, complainant also submitted as evidence the cards that she herself had received from him. Guided by the rule that handwriting may be proved through a comparison of one set of writings with those admitted or treated by the respondent as genuine, we affirm that the two sets of evidence were written by one and the same person. [48] Besides, respondent did not present any evidence to prove that the love letters were not really written by him; he merely denied that he wrote them. While the burden of proof is upon the complainant, respondent has the duty not only to himself but also to the court to show that he is morally fit to remain a member of the bar. Mere denial does not suffice. Thus, when his moral character is assailed, such that his right to continue practicing his cherished profession is imperiled, he must meet the charges squarely and present evidence, to the satisfaction of the investigating body and this Court, that he is morally fit to have his name in the Roll of Attorneys. [49] This he failed to do. Respondent adamantly denies abandoning his family to live with Gina Espita. At the same time, he depicts his wife as a violent husband-beater, vitriolic and unbending, and as an insanely and pathologically jealous woman, whose only

obsession was to destroy, destroy and destroy him as shown by her filing of a series of allegedly unfounded charges against him (and Gina Espita). To prove his allegation, he presented ninety-eight (98) pieces of documentary evidence [50] and ten (10) witnesses.[51] We note, however, that the testimonies of the witnesses of respondent did not establish the fact that he maintained that moral integrity required by the profession that would render him fit to continue practicing law. Neither did their testimonies destroy the fact, as proven by the complainant, that he had abandoned his family and lived with Gina Espita, with whom he had two children. Some of them testified on matters which they had no actual knowledge of, but merely relied on information from either respondent himself or other people, while others were presented to impeach the good character of his wife. Respondent may have provided well for his family -- they enjoyed a comfortable life and his children finished their education. He may have also established himself as a successful lawyer and a seasoned politician. But these accomplishments are not sufficient to show his moral fitness to continue being a member of the noble profession of law. We remind respondent that parents have not only rights but also duties e.g., to support, educate and instruct their children according to right precepts and good example; and to give them love, companionship and understanding, as well as moral and spiritual guidance.[52] As a husband, he is also obliged to live with his wife; to observe mutual love, respect and fidelity; and to render help and support. [53] Respondent himself admitted that his work required him to be often away from home. But the evidence shows that he was away not only because of his work; instead, he abandoned his family to live with his paramour, who bore him two children. It would appear, then, that he was hardly in a position to be a good husband or a good father. His children, who grew up mostly under the care of their mother, must have scarcely felt the warmth of their fathers love. Respondents son, Jervis B. Narag, showed his resentment towards his fathers moral frailties in his testimony:
Q A My question is this, is there any sin so grievous that it cannot be forgiven, is there a fault that is so serious that it is incapable of forgiveness? That depends upon the sin or fault, sir, but if the sin or fault is with the emotional part of myself, I suppose I cannot forgive a person although I am a God-fearing person, but I h[av]e to give the person a lesson in order for him or her to at least realize his mistakes, sir.

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I think it sounds like this. Assuming for the sake of argument that your father is the worst, hardened criminal on earth, would you send him to jail and have him disbarred? That is the question. CONTINUATION.

With the reputation that he had removed from us, I suppose he has to be given a lesson. At this point in time, I might just forgive him if he will have to experience all the pains that we have also suffered for quite sometime. Dr. Narag, your father gave you life, his blood runs in your veins, his flesh is your flesh, his bones are your bones and you now disown him because he is the worst man on earth, is that what you are saying. Sort of, sir. You are now telling that as far [as] you are concerned because your father has sinned, you have no more father, am I correct? Long before, sir, I did not feel much from my father even when I was still a kid because my father is not always staying with us at home. So, how can you say that? Yes, he gave me life, why not? But for sure, sir, you did not give me love.[54]

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Another son, Dominador Narag, Jr., narrated before the investigating officer the trauma he went through:
Q In connection with that affidavit, Mr. Witness, which contains the fact that your father is maintaining a paramour, could you please tell this Honorable Commission the effect on you? This has a very strong effect on me and this includes my brothers and sisters, especially my married life, sir. And it also affected my children so much, that I and my wife ha[ve] parted ways. It hurts to say that I and my wife parted ways. This is one reason that affected us. Will you please tell us specifically why you and your wife parted ways? Because my wife wa[s] ashamed of what happened to my family and that she could not face the people, our community, especially because my wife belongs to a well-known family in our community. How about the effect on your brothers and sisters? Please tell us what are those. Well, sir, this has also affected the health of my elder sister because she knows so well that my mother suffered so much and she kept on thinking about my mother.

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Why did your wife leave you? The truth is because of the things that had happened in our family, Your Honor. In your wifes family? In our family, sir. And what do you mean by that? What I meant by that is my father had an illicit relationship and that my father went to the extent of scolding my wife and calling my wife a puta in provincial government, which my mother-in-law hated him so much for this, which really affected us. And then my wife knew for a fact that my father has an illicit relationship with Gina Espita, whom he bore two children by the name of Aurelle Dominic and Kyle Dominador, which I could prove and I stand firm to this, Your Honor.[55]

Although respondent piously claims adherence to the sanctity of marriage, his acts prove otherwise. A husband is not merely a man who has contracted marriage. Rather, he is a partner who has solemnly sworn to love and respect his wife and remain faithful to her until death. We reiterate our ruling in Cordova vs. Cordova[56] The moral delinquency that affects the fitness of a member of the bar to continue as such includes conduct that outrages the generally accepted moral standards of the community, conduct for instance, which makes a mockery of the inviolable social institution of marriage. In Toledo vs. Toledo,[57] the respondent was disbarred from the practice of law, when he abandoned his lawful wife and cohabited with another woman who had borne him a child. Likewise, in Obusan vs. Obusan,[58] the respondent was disbarred after the complainant proved that he had abandoned her and maintained an adulterous relationship with a married woman. This Court declared that respondent failed to maintain the highest degree of morality expected and required of a member of the bar. In the present case, the complainant was able to establish, by clear and convincing evidence, that respondent had breached the high and exacting moral standards set for members of the law profession. As held in Maligsa vs. Cabanting,[59] a lawyer may be disbarred for any misconduct, whether in his professional or private capacity, which shows him to be wanting in moral character, in honesty, probity and good demeanor or unworthy to continue as an officer of the court. WHEREFORE, Dominador M. Narag is hereby DISBARRED and his name is ORDERED STRICKEN from the Roll of Attorneys. Let copies of this Decision be in the personal record of Respondent Narag; and furnished to all courts of the land, the Integrated Bar of the Philippines, and the Office of the Bar Confidant. SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Martinez, Quisumbing, and Purisima, JJ., concur.