Art. 40 Art. 41 General rule on bigamous marriages art.35.4 Waiting period Waiting period under extraordinary circumstances art.

391 CC Declarstion of presumptive death Reappearance of prior spouse art 42 Effect of termination of subsequent marriage art 43 Effect if both spouses of subsequent marriage in bad faith art 44 Nicdao-Cario vs Yee Cario, supra Mercado vs. Mercado, supra VOIDABLE MARRIAGES Jimenez vs Canizares 109 phil 273 Menciano vs. San jose gr L-1967 may 28, 1951 Aquino vs delizo 109 phil 21 Anaya vs palaroa. 36 scra 97 Ruiz vs atienza 40 O.G. 1903 Contreras vs macaraig 33 scra 222 Samosa-ramos v vamenta 46 scra 11 Suntay vs conjuangco suntay 300 scra 760 Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-12790 August 31, 1960 JOEL JIMENEZ, plaintiff-appellee, vs. REMEDIOS CAIZARES, defendant. Republic of the Philippines, intervenor-appellant. Acting Solicitor General Guillermo E. Torres and Solicitor Pacifico P. de Castro for appellant. Climaco, Ascarraga and Silang for appellee. PADILLA, J.: In a complaint filed on 7 June 1955 in the Court of First Instance of Zamboanga the plaintiff Joel Jimenez prays for a decree annulling his marriage to the defendant Remedios Caizares contracted on 3 August 1950 before a judge of the municipal court of Zamboanga City, upon the ground that the office of her genitals or vagina was to small to allow the penetration of a male organ or penis for copulation; that the condition of her genitals as described above existed at the time of marriage and continues to exist; and that for that reason he left the conjugal home two nights and one day after they had been married. On 14 June 1955 the wife was summoned and served a copy of the complaint. She did not file an answer. On 29 September 1956, pursuant to the provisions of article 88 of the Civil Code, the Court directed the city attorney of Zamboanga to inquire whether there was a collusion, to intervene for the State to see that the evidence for the plaintiff is not a frame-up, concocted or fabricated. On 17 December 1956 the Court entered an order requiring the defendant to submit to a physical examination by a competent lady physician to determine her physical capacity for copulation and to submit, within ten days from receipt of the order, a medical certificate on the result thereof. On 14 March 1957 the defendant was granted additional five days from notice to comply with the order of 17 December 1956 with warning that her failure to undergo medical examination and submit the required doctor's certificate would be deemed lack of interest on her part in the case and that judgment upon the evidence presented by her husband would be rendered. After hearing, at which the defendant was not present, on 11 April 1957 the Court entered a decree annulling the marriage between the plaintiff and the defendant. On 26 April 1957 the city attorney filed a motion for reconsideration of the decree thus entered, upon the ground, among others, that the defendant's impotency has not been satisfactorily established as required by law; that she had not been physically examined because she had refused to be examined; that instead of annulling the marriage the Court should have punished her for contempt of court and compelled her to undergo a physical examination and submit a medical certificate; and that the decree sought to be reconsidered would open the door to married couples, who want to end their marriage to collude or connive with each other by just alleging impotency of one of them. He prayed that the complaint be dismissed or that the wife be subjected to a physical examination. Pending resolution of his motion, the city attorney timely appealed from the decree. On 13 May 1957 the motion for reconsideration was denied. The question to determine is whether the marriage in question may be annulled on the strength only of the lone testimony of the husband who claimed and testified that his wife was and is impotent. The

latter did not answer the complaint, was absent during the hearing, and refused to submit to a medical examination. Marriage in this country is an institution in which the community is deeply interested. The state has surrounded it with safeguards to maintain its purity, continuity and permanence. The security and stability of the state are largely dependent upon it. It is the interest of each and every member of the community to prevent the bringing about of a condition that would shake its foundation and ultimately lead to its destruction. The incidents of the status are governed by law, not by will of the parties. The law specifically enumerates the legal grounds, that must be proved to exist by indubitable evidence, to annul a marriage. In the case at bar, the annulment of the marriage in question was decreed upon the sole testimony of the husband who was expected to give testimony tending or aiming at securing the annulment of his marriage he sought and seeks. Whether the wife is really impotent cannot be deemed to have been satisfactorily established, becase from the commencement of the proceedings until the entry of the decree she had abstained from taking part therein. Although her refusal to be examined or failure to appear in court show indifference on her part, yet from such attitude the presumption arising out of the suppression of evidence could not arise or be inferred because women of this country are by nature coy, bashful and shy and would not submit to a physical examination unless compelled to by competent authority. This the Court may do without doing violence to and infringing in this case is not self-incrimination. She is not charged with any offense. She is not being compelled to be a witness against herself.1 "Impotency being an abnormal condition should not be presumed. The presumption is in favor of potency."2 The lone testimony of the husband that his wife is physically incapable of sexual intercourse is insufficient to tear asunder the ties that have bound them together as husband and wife. The decree appealed from is set aside and the case remanded to the lower court for further proceedings in accordance with this decision, without pronouncement as to costs. Paras, C.J., Bengzon, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Gutierrez David, and Dizon, JJ. concur. Republic of the Philippines SUPREME COURT Manila 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., plaintiffsappellees, vs. PAZ NERI SAN JOSE and RODOLFO PELAEZ, defendantsappellants. 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. G.R. No. L-15853 July 27, 1960 FERNANDO AQUINO, petitioner, vs. CONCHITA DELIZO, respondent. GUTIERREZ DAVID, J.: This is a petition for certiorari to review a decision of the Court of Appeals affirming that of the Court of First Instance of Rizal which dismissed petitioner's complaint for annulment of his marriage with respondent Conchita Delizo. The dismissed complaint, which was filed on September 6, 1955, was based on the ground of fraud, it being alleged, among other things, that defendant Conchita Delizo, herein respondent, at the date of her marriage to plaintiff, herein petitioner Fernando Aquino, on December 27, 1954, concealed from the latter that fact that she was pregnant by another man, and sometime in April, 1955, or about four

months after their marriage, gave birth to a child. In her answer, defendant claimed that the child was conceived out of lawful wedlock between her and the plaintiff. At the trial, the attorney's for both parties appeared and the court a quo ordered Assistant Provincial Fiscal Jose Goco to represent the State in the proceedings to prevent collusion. Only the plaintiff however, testified and the only documentary evidence presented was the marriage contract between the parties. Defendant neither appeared nor presented any evidence despite the reservation made by her counsel that he would present evidence on a later date. On June 16, 1956, the trial court noting that no birth certificate was presented to show that the child was born within 180 days after the marriage between the parties, and holding that concealment of pregnancy as alleged by the plaintiff does not constitute such fraud sa would annul a marriage dismissed the complaint. Through a verified "petition to reopen for reception of additional evidence", plaintiff tried to present the certificates of birth and delivery of the child born of the defendant on April 26, 1955, which documents, according to him, he had failed to secure earlier and produce before the trial court thru excusable negligence. The petition, however, was denied. On appeal to the Court of Appeals, that court held that there has been excusable neglect in plaintiff's inability to present the proof of the child's birth, through her birth certificate, and for that reason the court a quo erred in denying the motion for reception of additional evidence. On the theory, however, that it was not impossible for plaintiff and defendant to have had sexual intercourse during their engagement so that the child could be their own, and finding unbelievable plaintiff's claim that he did not notice or even suspect that defendant was pregnant when he married her, the appellate court, nevertheless, affirmed the dismissal of the complaint. On March 17, 1959, plaintiff filed a motion praying that the decision be reconsidered, or, if such reconsideration be denied, that the case be remanded to the lower court for new trial. In support of the motion, plaintiff attached as annexes thereof the following documents: 1. Affidavit of Cesar Aquino (Annex A) (defendant's brother-in-law and plaintiff's brother, with whom defendant was living at the time plaintiff met, courted and married her, and with whom defendant has begotten two more children, aside from her first born, in commonlaw relationship) admitting that he is the father of defendant's first born, Catherine Bess Aquino, and that he and defendant hid her pregnancy from plaintiff at the time of plaintiff's marriage to defendant; 2. Affidavit of defendant, Conchita Delizo (Annex "B") admitting her pregnancy by Cesar Aquino, her brother-in-law and plaintiff's own brother, at the time of her marriage to plaintiff and her having hidden this fact from plaintiff before and up to the time of their marriage; 3. Affidavit of Albert Powell (Annex "C") stating that he knew Cesar Aquino and defendant lived together as husband and wife before December 27, 1954, the date of plaintiff's marriage to defendant; 4. Birth Certificate of defendant's first born, Catherine Bess Aquino showing her date of birth to be April 26, 1955; 5. Birth Certificate (Annex "D") of Carolle Ann Aquino, the second child of defendant with Cesar Aquino, her brother-in-law; 6. Birth Certificate (Annex "E") of Chris Charibel Aquino, the third child of Cesar Aquino and defendant; and 7. Pictures of defendant showing her natural plumpness as early as 1952 to as late as November, 1954, the November, 1954 photo itself does not show defendant's pregnancy which must have been almost four months old at the time the picture was taken. Acting upon the motion, the Court of Appeals ordered the defendant Conchita Delizo and Assistant Provincial Fiscal of Rizal, who was representing the Government, to answer the motion for reconsideration, and deferred action on the prayer for new trial until after the case is disposed of. As both the defendant and the fiscal failed to file an answer, and stating that it "does not believe the veracity of the contents of the motion and its annexes", the Court of Appeals, on August 6, 1959, denied the motion. From that order, the plaintiff brought the case to this Court thru the present petition for certiorari. After going over the record of the case, we find that the dismissal of plaintiff's complaint cannot be sustained. Under the new Civil Code, concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband constitutes fraud and is ground for annulment of marriage. (Art. 85, par. (4) in relation to Art. 86, par. (3). In the case of Buccat vs. Buccat (72 Phil., 19) cited in the decision sought to be reviewed, which was also an action for the annulment of marriage on the ground of fraud, plaintiff's claim that he did not even suspect the pregnancy of the defendant was held to be unbelievable, it having

been proven that the latter was already in an advanced stage of pregnancy (7th month) at the time of their marriage. That pronouncement, however, cannot apply to the case at bar. Here the defendant wife was alleged to be only more than four months pregnant at the time of her marriage to plaintiff. At that stage, we are not prepared to say that her pregnancy was readily apparent, especially since she was "naturally plump" or fat as alleged by plaintiff. According to medical authorities, even on the 5th month of pregnancy, the enlargement of a woman's abdomen is still below the umbilicus, that is to say, the enlargement is limited to the lower part of the abdomen so that it is hardly noticeable and may, if noticed, be attributed only to fat formation on the lower part of the abdomen. It is only on the 6th month of pregnancy that the enlargement of the woman's abdomen reaches a height above the umbilicus, making the roundness of the abdomen more general and apparent. (See Lull, Clinical Obstetrics, p. 122) If, as claimed by plaintiff, defendant is "naturally plump", he could hardly be expected to know, merely by looking, whether or not she was pregnant at the time of their marriage more so because she must have attempted to conceal the true state of affairs. Even physicians and surgeons, with the aid of the woman herself who shows and gives her subjective and objective symptoms, can only claim positive diagnosis of pregnancy in 33% at five months. and 50% at six months. (XI Cyclopedia of Medicine, Surgery, etc. Pregnancy, p. 10). The appellate court also said that it was not impossible for plaintiff and defendant to have had sexual intercourse before they got married and therefore the child could be their own. This statement, however, is purely conjectural and finds no support or justification in the record. Upon the other hand, the evidence sought to be introduced at the new trial, taken together with what has already been adduced would, in our opinion, be sufficient to sustain the fraud alleged by plaintiff. The Court of Appeals should, therefore, not have denied the motion praying for new trial simply because defendant failed to file her answer thereto. Such failure of the defendant cannot be taken as evidence of collusion, especially since a provincial fiscal has been ordered of represent the Government precisely to prevent such collusion. As to the veracity of the contents of the motion and its annexes, the same can best be determined only after hearing evidence. In the circumstance, we think that justice would be better served if a new trial were ordered. Wherefore, the decision complained of is set aside and the case remanded to the court a quo for new trial. Without costs. Paras, C.J., Bengzon, Montemayor, Labrador, Concepcion, and Reyes, J.B.L., JJ., concur. Barrera, J., concurs in the result. 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 premarital 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. G.R. No. L-29138 May 29, 1970 ELENA CONTRERAS, plaintiff-appellant, vs. CESAR J. MACARAIG, defendant-appellee. Jose T. Nery for plaintiff-appellee. The City fiscal for defendant-appellant. Cesar J. Macaraig in his own behalf. DIZON, J.: Appeal taken by Elena Contreras from a decision of the Juvenile and Domestic Relations Court of Manila in Civil Case No. 00138 dismissing her complaint upon the ground that the same was filed more than one year from and after the date on which she had become cognizant of the cause for legal separation. The following, facts found by the trial court are not in dispute: Plaintiff and defendant were married on March 16, 1952 in the Catholic Church of Quiapo, Manila. Out of their Marriage, three children were born: Eusebio C. Macaraig, on January 11, 1953; Victoria C. Macaraig, on March 26, 1956; and Alexander C. Macaraig, on August 4, 1958. All the children are in the care of plaintiff wife.

Sometime in 1958, the couple acquired rights, as lessee and purchaser under a conditional sale agreement, to own a house and lot, known as Lot 4, Block 8 of the Philamlife Homes in Quezon City which they transferred in favor of their three children on October 29, 1958 (Exh. F). Installment payments are being made by plaintiff's father. The spouses own no other conjugal property. Immediately before the election of 1961, defendant was employed as manager of the printing establishment owned by plaintiff's father known as the MICO Offset. In that capacity, defendant met and came to know Lily Ann Alcala, who place orders with MICO Offset for propaganda materials for Mr. Sergio Osmea, who was then a VicePresidential candidate. After the elections of 1961, defendant resigned from MICO Offset to be a special agent at Malacaang. He began to be away so often and to come home very late. Upon plaintiff's inquiry, defendant explained that he was out on a series of confidential missions. In September, 1962, Avelino Lubos, driver of the family car, told plaintiff that defendant was living in Singalong with Lily Ann Alcala. When defendant, the following October, returned to the conjugal home, plaintiff refrained from verifying Lubos' report from defendant in her desire not to anger nor drive defendant away. Although plaintiff, in April 1963, also received rumors that defendant was seen with a woman who was on the family way on Dasmarias St., she was so happy that defendant again return to the family home in May, 1963 that she once more desisted from discussing the matter with him because she did not wish to precipitate a quarrel and drive him away. All this while, defendant, if and whenever he returned to the family fold, would only stay for two or three days but would be gone for a period of about a month. After plaintiff received reports that Lily Ann Alcala had given birth to a baby, she sent Mrs. Felicisima Antioquia, her father's employee, to verify the reports. The latter was driven by Lubos to the house in Singalong and between 5:00 and 6:00 o'clock that afternoon, she saw defendant was carrying a baby in his arms. Mrs. Antioquia then went to the parish priest of Singalong where she inquired about the child of Cesar Macaraig and Lily Ann Alcala and she was given a copy of the baptismal certificate of Maria Vivien Mageline Macaraig (Exh. G) which she gave to plaintiff sometime in October, 1963. Plaintiff then entreated her father-in-law, Lucilo Macaraig, to intercede with defendant and to convince him to return to his family. Mr. Macaraig, after talking to his son and seeking him with the latter's child told plaintiff that he could not do anything. In November, 1963, plaintiff requested the cooperation of defendant's older sister, Mrs. Enriqueta Majul, and the latter obliged and arranged a meeting at her home in Buendia between plaintiff and Lily Ann Alcala. Lily Ann said she was willing to give up defendant as she had no desire to be accused criminally but it was defendant who refused to break relationship with her. In the early part of December, 1963, plaintiff, accompanied by her two children, Victoria and Alexander, and by Mrs. Leticia Lagronio went to talk to defendant at his place of work on Espaa Extension in front of Quezon Institute. They repaired to Victoria Peak, a nearby restaurant, where plaintiff pleaded with defendant to give up Lily Ann Alcala and to return to the conjugal home, assuring him that she was willing to forgive him. Defendant informed plaintiff that he could no longer leave Lily Ann and refused to return to his legitimate family. On December 14, 1963, plaintiff instituted the present action for legal separation. When defendant did not interpose any answer after he was served summons, the case was referred to the Office of the City Fiscal of Manila pursuant to the provisions of Article 101 of the Civil Code. After a report was received from Asst. Fiscal Primitivo M. Pearanda that he believed that there was no collusion present, plaintiff was allowed to present her evidence. Defendant has never appeared in this case. The reasons relied upon by the trial court in dismissing the complaint are set forth in the appealed decision as follows: Under the facts established by plaintiff's evidence, although the infidelity of the husband is apparent, yet the case will have to be dismissed. Article 102 provides that, an action for legal separation cannot be instituted except within one year after plaintiff "became cognizant of the cause." In the absence of a clear-cut decision of the Supreme Court as to the exact import of the term "cognizant," the practical application of said Article can be attended with difficulty. For one thing; that rules might be different in case of adultery, which is an act, and for concubinage, which may be a situation or a relationship. In respect of concubinage, the word 'cognizant' may not connote the date when proof thereof sufficient to establish the cause before a court of law is possessed. Otherwise, the one year period would be

meaningless for practical purposes because all a wife would have to do would be to claim that the necessary proof was secured only within one year before the filing of the complaint. On the other hand, it should be hard to concede that what the law envisages (and, in a way, encourages) is the filing of a complaint within one year after the innocent spouses has received information of the other's infidelity, howsoever baseless the report might be. The Court believes that the correct rule lies between the two extremes. At the time a wife acquired information, which can be reasonably relied upon as true, that her husband is living in concubinage with another woman, the one-year period should be deemed to have started even if the wife shall not then be in possession of proof sufficient to establish the concubinage before a court of law. The one-year period may be viewed, inter alia, as an alloted time within which proof should be secured. It is in the light of this rule that the Court will determine whether or not plaintiff's action for legal separation has prescribed. After her husband resigned from MICO Offset to be a special agent in Malacaan, subsequent to the elections of 1961, he would seldom come home. He allayed plaintiff's suspicions with the explanation that he had been away on 'confidential missions.' However, in September, 1962, Avelino Lubos, plaintiff's driver, reported to plaintiff that defendant was living in Singalong with Lily Ann Alcala. As a matter of fact, it was also Lubos who brought Mrs. F. Antioquia (when plaintiff had asked to verify the reports) to the house in Singalong where she saw defendant, Lily Ann and the baby. The requirement of the law that a complaint for legal separation be filed within one year after the date plaintiff become cognizant of the cause is not of prescriptive nature, but is of the essence of the cause of action. It is consonant with the philosophy that marriage is an inviolable social institution so that the law provides strict requirements before it will allow a disruption of its status. In the instant action, the Court has to find that plaintiff became cognizant of defendant's infidelity in September, 1962. Plaintiff made successive attempts to induce the husband to amend his erring ways but failed. Her desire to bring defendant back to the connubial fold and to preserve family solidarity deterred her from taking timely legal action. The only question to be resolved is whether the period of one year provided for in Article 102 of the Civil Code should be counted, as far as the instant case is concerned from September 1962 or from December 1963. Computing the period of one year from the former date, it is clear that plaintiff's complaint filed on December 14, 1963 came a little too late, while the reverse would be true if said period is deemed to have commenced only in the month of December 1963. The period of "five years from after the date when such cause occurred" is not here involved. Upon the undisputed facts it seems clear that, in the month of September 1962, whatever knowledge appellant had acquired regarding the infidelity of her husband, that is, of the fact that he was then living in Singalong with Lily Ann Alcala, was only through the information given to her by Avelino Lubos, driver of the family car. Much as such hearsay information had pained and anguished her, she apparently thought it best and no reasonable person may justifiably blame her for it not to go deeper into the matter herself because in all probability even up to that time, notwithstanding her husband's obvious neglect of his entire family, appellant still cherished the hope however forlorn of his coming back home to them. Indeed, when her husband returned to the conjugal home the following October, she purposely refrained from bringing up the matter of his marital infidelity "in her desire not to anger nor drive defendant away" quoting the very words of the trial court. True, appellant likewise heard in April 1963 rumors that her husband was seen with a woman on the family way on Dasmarias Street, but failed again to either bring up the matter with her husband or make attempts to verify the truth of said rumors, but this was due, as the lower court itself believed, because "she was so happy that defendant again returned to the family home in May 1963 that she once more desisted from discussing the matter with him because she did not wish to precipitate a quarrel and drive him away." As a matter of fact, notwithstanding all these painful informations which would not have been legally sufficient to make a case for legal separation appellant still made brave if desperate attempts to persuade her husband to come back home. In the words of the lower court, she "entreated her father-in-law, Lucilo Macaraig, to intercede with defendant and to convince him to return to his family" and also "requested the cooperation of defendant's older sister, Mrs. Enriqueta Majul" for the same purpose, but all that was of no avail. Her husband remained obdurate.

After a careful review of the record, We are persuaded that, in the eyes of the law, the only time when appellant really became cognizant of the infidelity of her husband was in the early part of December 1963 when, quoting from the appealed decision, the following happened In the early part of December, 1963, plaintiff, accompanied by her two children, Victoria and Alexander, and by Mrs. Leticia Lagronio went to talk to defendant at his place of work on Espaa Extension in front of Quezon Institute. They repaired to Victoria Peak, a nearby restaurant, where plaintiff pleaded with defendant to give up Lily Ann Alcala and to return to the conjugal home, assuring him that she was willing to forgive him. Defendant informed plaintiff that he could no longer leave Lily Ann and refused to return to his legitimate family. From all the foregoing We conclude that it was only on the occasion mentioned in the preceding paragraph when her husband admitted to her that he was living with and would no longer leave Lily Ann to return to his legitimate family that appellant must be deemed to be under obligation to decide whether to sue or not to sue for legal separation, and it was only then that the legal period of one year must be deemed to have commenced. WHEREFORE, the decision appealed from is set aside and another is hereby rendered holding that appellant is entitled to legal separation as prayed for in her complaint; and the case is hereby remanded to the lower court for appropriate proceedings in accordance with law. G.R. No. L-34132 July 29, 1972 LUCY SOMOSA-RAMOS, petitioner, vs. THE HONORABLE CIPRIANO VAMENTA, JR., Presiding Judge of the Court of First Instance of Negros Oriental and CLEMEN G. RAMOS, respondents. T. R. Reyes & Associates for petitioner. Soleto J. Erames for respondents. FERNANDO, J.:p The question raised in this petition for certiorari is whether or not Article 103 of the Civil Code prohibiting the hearing of an action for legal separation before the lapse of six months from the filing of the petition, would likewise preclude the court from acting on a motion for preliminary mandatory injunction applied for as an ancillary remedy to such a suit. Respondent Cipriano Vamenta, Jr., of the Court of First Instance of Negros Oriental, answered the question in the affirmative, in view of the absolute tenor of such Civil Code provision, which reads thus: "An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition." He therefore ordered the suspension, upon the plea of the other respondent the husband Clemente G. Ramos, of the hearing on a motion for a writ of preliminary mandatory injunction filed by petitioner at the same time the suit for legal separation was instituted. Petitioner, Lucy Somosa-Ramos, the wife who brought the action for legal separation would dispute such a ruling. Hence, this certiorari proceeding. As will be shown later there is justification for such a move on the part of petitioner. The respondent Judge ought to have acted differently. The plea for a writ of certiorari must be granted. The pleadings show that on June 18, 1971, petitioner filed Civil Case No. 5274 in the sala of respondent Judge against respondent Clemente Ramos for legal separation, on concubinage on the respondent's part and an attempt by him against her life being alleged. She likewise sought the issuance of a writ of preliminary mandatory injunction for the return to her of what she claimed to be her paraphernal and exclusive property, then under the administration and management of respondent Clemente Ramos. There was an opposition to the hearing of such a motion, dated July 3, 1971, based on Article 103 of the Civil Code. It was further manifested by him in a pleading dated July 16, 1971, that if the motion asking for preliminary mandatory injunction were heard, the prospect of the reconciliation of the spouses would become even more dim. Respondent Judge ordered the parties to submit their respective memoranda on the matter. Then on September 3, 1971, petitioner received an order dated August 4, 1971 of respondent Judge granting the motion of respondent Ramos to suspend the hearing of the petition for a writ of mandatory preliminary injunction. That is the order complained of in this petition for certiorari. Respondents were required to answer according to our resolution of October 5, 1971. The answer was filed December 2 of that year. Then on January 12, 1972 came a manifestation from parties in the case submitting the matter without further arguments. After a careful consideration of the legal question presented, it is the holding of this Court that Article 103 the Civil Code is not an

absolute bar to the hearing motion for preliminary injunction prior to the expiration of the six-month period. 1. It is understandable why there should be a period during which the court is precluded from acting. Ordinarily of course, no such delay is permissible. Justice to parties would not thereby be served. The sooner the dispute is resolved, the better for all concerned. A suit for legal separation, however, is something else again. It involves a relationship on which the law for the best reasons would attach the quality of permanence. That there are times when domestic felicity is much less than it ought to be is not of course to be denied. Grievances, whether fancied or real, may be entertained by one or both of the spouses. There may be constant bickering. The loss affection on the part of one or both may be discernible. Nonetheless, it will not serve public interest, much less the welfare of the husband or the wife, to allow them to go their respective ways. Where there are offspring, the reason for maintaining the conjugal union is even more imperative. It is a mark of realism of the law that for certain cases, adultery on the part of the wife and concubinage on the part of the husband, or an attempt of one spouse against the life of the other, 1 it recognizes, albeit reluctantly, that the couple is better off apart. A suit for legal separation lies. Even then, the hope that the parties may settle their differences is not all together abandoned. The healing balm of time may aid in the process. Hopefully, the guilty parties may mend his or her ways, and the offended party may in turn exhibit magnanimity. Hence, the interposition of a six-month period before an action for legal separation is to be tried. The court where the action is pending according to Article 103 is to remain passive. It must let the parties alone in the meanwhile. It is precluded from hearing the suit. There is then some plausibility for the view of the lower court that an ancillary motion such as one for preliminary mandatory injunction is not to be acted on. If it were otherwise, there would be a failure to abide by the literal language of such codal provision. That the law, however, remains cognizant of the need in certain cases for judicial power to assert itself is discernible from what is set forth in the following article. It reads thus: "After the filing of the petition for legal separation, the spouse shall be entitled to live separately from each other and manage their respective property. The husband shall continue to manage the conjugal partnership property but if the court deems it proper, it may appoint another to manage said property, in which case the administrator shall have the same rights and duties as a guardian and shall not be allowed to dispose of the income or of the capital except in accordance with the orders of the court." 2 There would appear to be then a recognition that the question of management of their respective property need not be left unresolved even during such sixmonth period. An administrator may even be appointed for the management of the property of the conjugal partnership. The absolute limitation from which the court suffers under the preceding article is thereby eased. The parties may in the meanwhile be heard. There is justification then for the petitioner's insistence that her motion for preliminary mandatory injunction should not be ignored by the lower court. There is all the more reason for this response from respondent Judge, considering that the husband whom she accused of concubinage and an attempt against her life would in the meanwhile continue in the management of what she claimed to be her paraphernal property, an assertion that was not specifically denied by him. What was held by this Court in Araneta v. Concepcion, 3 thus possesses relevance: "It is conceded that the period of six months fixed therein Article 103 (Civil Code) is evidently intended as a cooling off period to make possible a reconciliation between the spouses. The recital of their grievances against each other in court may only fan their already inflamed passions against one another, and the lawmaker has imposed the period to give them opportunity for dispassionate reflection. But this practical expedient, necessary to carry out legislative policy, does not have the effect of overriding other provisions such as the determination of the custody of the children and alimony and support pendente lite according to the circumstance ... The law expressly enjoins that these should be determined by the court according to the circumstances. If these are ignored or the courts close their eyes to actual facts, rank injustice may be caused." 4 At any rate, from the time of the issuance of the order complained of on August 4, 1971, more than six months certainly had elapsed. Thus there can be no more impediment for the lower court acting on the motion of petitioner for the issuance of a writ of preliminary mandatory injunction. WHEREFORE, the plea of petitioner for a writ of certiorari is granted, and the order of respondent Court of August 4, 1971, suspending the hearing on the petition for a writ of preliminary mandatory injunction is set aside. Respondent Judge is directed to

proceed without delay to hear the motion for preliminary mandatory injunction. Costs against respondent Clemente G. Ramos. [G.R. No. 132524. December 29, 1998] FEDERICO C. SUNTAY, petitioner, vs. ISABEL COJUANGCOSUNTAY* and HON. GREGORIO S. SAMPAGA, Presiding Judge, Branch 78, Regional Trial Court, Malolos, Bulacan, respondents. DECISION MARTINEZ, J.: Which should prevail between the ration decidendi and the fallo of a decision is the primary issue in this petition for certiorari under Rule 65 filed by petitioner Federico C. Suntay who opposes respondent Isabels petition for appointment as administratrix of her grandmothers estate by virtue of her right of representation. The suit stemmed from the following: On July 9, 1958, Emilio Aguinaldo Suntay (son of petitioner Federico Suntay) and Isabel Cojuangco-Suntay were married in the Portuguese Colony of Macao. Out of this marriage, three children were born namely: Margarita Guadalupe, Isabel Aguinaldo and Emilio Aguinaldo all surnamed Cojuangco Suntay. After 4 years, the marriage soured so that in 1962, Isabel Cojuanco-Suntay filed a criminal case[1] against her husband Emilio Aguinaldo Suntay. In retaliation, Emilio Aguinaldo filed before the then Court of First Instance (CFI)[2] a complaint for legal separation against his wife, charging her, among others, with infidelity and praying for the custody and care of their children who were living with their mother.[3] The suit was docketed as civil case number Q-7180. On October 3, 1967, the trial court rendered a decision the dispositive portion which reads: WHEREFORE, the marriage celebrated between Emilio Aguinaldo Suntay and Isabel Cojuangco-Suntay on July 9, 1958 is hereby declared null and void and of no effect as between the parties. It being admitted by the parties and shown by the records that the question of the case and custody of the three children have been the subject of another case between the same parties in another branch of this Court in Special Proceeding No. 6428, the same cannot be litigated in this case. With regard to counterclaim, in view of the manifestation of counsel that the third party defendants are willing to pay P50,000.00 for damages and that defendant is willing to accept the offer instead of her original demand for P130,000.00, the defendant is awarded the sum of P50,000.00 as her counterclaim and to pay attorneys fees in the amount of P5,000.00. SO ORDERED.[4] (Emphasis supplied) As basis thereof, the CFI said: From February 1965 thru December 1965 plaintiff was confined in the Veterans Memorial Hospital. Although at the time of the trial of parricide case (September 8, 1967) the patient was already out of the hospital he continued to be under observation and treatment. It is the opinion of Dr. Aramil that the symptoms of the plaintiffs mental aberration classified as schizophernia (sic) had made themselves manifest even as early as 1955; that the disease worsened with time, until 1965 when he was actually placed under expert neuro-psychiatrist (sic) treatment; that even if the subject has shown marked progress, the remains bereft of adequate understanding of right and wrong. There is no controversy that the marriage between the parties was effected on July 9, 1958, years after plaintiffs mental illness had set in. This fact would justify a declaration of nullity of the marriage under Article 85 of the Civil Code which provides: Art. 95. (sic) A marriage may be annulled for nay of the following causes after (sic) existing at the time of the marriage: xxx xxx xx x (3) That either party was of unsound mind, unless such party, after coming to reason, freely cohabited with the other as husband or wife. There is a dearth of proof at the time of the marriage defendant knew about the mental condition of the plaintiff; and there is proof that plaintiff continues to be without sound reason. The charges in this very complaint add emphasis to the findings of the neuropsychiatrist handling the patient, that plaintiff really lives more in fancy that in reality, a strong indication of schizophernia (sic).[5] (emphasis supplied) On June 1, 1979, Emilio Aguinaldo Suntay predeceased his mother, the decedent Cristina Aguinaldo-Suntay. The latter is respondent Isabels paternal grandmother. The decedent died on June 4, 1990 without leaving a will.[6] Five years later or on October 26 1995, respondent Isabel Aguinaldo Cojuangco Suntay filed before the Regional Trial Court (RTC)[7] a petition for issuance in her favor of Letters of

Administration of the Intestate Estate of her late grandmother Cristina Aguinaldo Suntay which case was docketed as Special Proceeding Case No. 117-M-95. In her petition, she alleged among others, that she is one of the legitimate grandchildren of the decedent and prayed that she be appointed as administratrix of the estate.[8] On December 15, 1995, petitioner filed an Opposition claiming that he is the surviving spouse of the decedent, that he has been managing the conjugal properties even while the decedent has been alive and is better situated to protect the integrity of the estate than the petitioner, that petitioner and her family have been alienated from the decedent and the Oppositor for more than thirty (30) years and thus, prayed that Letters of Administration be issued instead to him. [9] On September 22, 1997 or almost two years after filing an opposition, petitioner moved to dismiss the special proceeding case alleging in the main that respondent Isabel should not be appointed as administratrix of the decedents estate. In support thereof, petitioner argues that under Article 992 of the Civil Code an illegitimate child has no right to succeed by right of representation the legitimate relatives of her father or mother. Emilio Aguinaldo Suntay, respondent Isabels father predeceased his mother, the late Cristina Aguinaldo Suntay and thus, opened succession by representation. Petitioner contends that as a consequence of the declaration by the then CFI of Rizal that the marriage of the respondent Isabels parents is null and void, the latter is an illegitimate child, and has no right nor interest in the estate of her paternal grandmother the decedent.[10] On October 16, 1997, the trial court issued the assailed order denying petitioners Motion to Dismiss.[11] When his motion for reconsideration was denied by the trial court in an order dated January 9, 1998,[12] petitioner, as mentioned above filed this petition. Petitioner imputes grave abuse of discretion to respondent court in denying his motion to dismiss as well as his motion for reconsideration on the grounds that: (a) a motion to dismiss is appropriate in a special proceeding for the settlement of estate of a deceased person; (b) the motion to dismiss was timely filed; (c) the dispositive portion of the decision declaring the marriage of respondent Isabels parents null and void must be upheld; and (d) said decision had long become final and had, in fact, been executed. On the other hand, respondent Isabel asserts that petitioners motion to dismiss was late having been filed after the opposition was already filed in court, the counterpart of an answer in an ordinary civil action and that petitioner in his opposition likewise failed to specifically deny respondent Isabels allegation that she is a legitimate child of Emilio Aguinaldo Suntay, the decedents son. She further contends that petitioner proceeds from a miscomprehension of the judgment in Civil Case No. Q-7180 and the erroneous premise that there is a conflict between the body of the decision and its dispositive portion because in an action for annulment of a marriage, the court either sustains the validity of marriage or nullifies it. It does not, after hearing a marriage voidable otherwise, the court will fail to decide and lastly, that the status of marriages under Article 85 of the Civil Code before they are annulled is voidable. The petition must fail. Certiorari as a special civil action can be availed of only if there is concurrence of the essential requisites, to wit: (a) the tribunal, board or officer exercising judicial functions has acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or in excess or jurisdiction, and (b) there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law for the purpose of annulling or modifying the proceeding.[13] There must be a capricious, arbitrary and whimsical exercise of power for it to prosper.[14] A reading of the assailed order, however, shows that the respondent court did not abuse its discretion in denying petitioners motion to dismiss, pertinent portions of which are quoted hereunder. To with: The arguments of both parties judiciously and objectively assessed and the pertinent laws applied, the Court finds that a motion to dismiss at this juncture is inappropriate considering the peculiar nature of this special proceeding as distinguished from an ordinary civil action. At the outset, this proceeding was not adversarial in nature and the petitioner was not called upon to assert a cause of action against a particular defendant. Furthermore, the State has a vital interest in the maintenance of the proceedings, not only because of the taxes due it, but also because if no heirs qualify, the State shall acquire the estate by escheat. xxx xxx xx x The court rules, for the purpose of establishing the personality of the petitioner to file ad maintain this special proceedings, that in the case

at bench, the body of the decision determines the nature of the action which is for annulment, not declaration of nullity. The oppositors contention that the fallo of the questioned decision (Annex A Motion) prevails over the body thereof is not of a final decision is definite, clear and unequivocal and can be wholly given effect without need of interpretation or construction. Where there is ambiguity or uncertainty, the opinion or body of the decision may be referred to for purposes of construing the judgement (78 SCRA 541 citing Morelos v. Go Chin Ling; and Heirs of Juan Presto v. Galang). The reason is that the dispositive portion must find support from the decisions ratio decidendi. Per decision of the Court of First Instance Branch IX of Quezon City, marked as Annex A of oppositors motion, the marriage of Emilio Aguinaldo Suntay and Isabel Cojuangco-Suntay was annulled on the basis of Art. 85 par. 3 of the Civil Code which refers to marriages which are considered voidable. Petitioner being conceived and born of a voidable marriage before the decree of annulment, she is considered legitimate (Art. 89, par. 2, Civil Code of the Phils.).[15] The trial court correctly ruled that a motion to dismiss at this juncture is inappropriate. The 1997 Rules of Civil Procedure governs the procedure to be observed in actions, civil or criminal and special proceedings.[16] The Rules do not only apply to election cases, land registration, cadastral, naturalization and insolvency proceedings, and other cases not therein provided for. Special proceedings being one of the actions under the coverage of the Rules on Civil Procedure, a motion to dismiss filed thereunder would fall under Section 1, Rule 16 thereof. Said rule provides that the motion to dismiss may be filed within the time for but before filing the answer to the complaint. Clearly, the motion should have been filed on or before the filing of petitioners opposition.[17] which is the counterpart of an answer in ordinary civil actions. Not only was petitioners motion to dismiss filed out of time, it was filed almost two years after respondent Isabel was already through with the presentation of her witnesses and evidence and petitioner had presented two witnesses. The filing of the motion to dismiss is not only improper but also dilatory. The respondent court, far from deviating or straying off course from established jurisprudence on this matter, as petitioner asserts, had in fact faithfully observed the law and legal precedents in this case. In fact, the alleged conflict between the body of the decision and the dispositive portion thereof which created the ambiguity or uncertainty in the decision of the CFI of Rizal is reconcilable. The legal basis for setting aside the marriage of respondent Isabels parents is clear under paragraph 3, Article 85 of the New Civil Code, the law in force prior to the enactment of the Family Code. Petitioner, however, strongly insists that the dispositive portion of the CFI decision has categorically declared that the marriage of respondent Isabels parents is null and void and that the legal effect of such declaration is that the marriage from its inception is void and the children born out of said marriage is illegitimate. Such argument cannot be sustained. Articles 80, 81, 82 and 83[18] of the New Civil Code classify what marriages are void while Article 85 enumerates the causes for which a marriage may be annulled.[19] The fundamental distinction between void and voidable marriages is that void marriage is deemed never to have taken place at all. The effects of void marriages, with respect to property relations of the spouses are provided for under Article 144 of the Civil Code. Children born of such marriages who are called natural children by legal fiction have the same status, rights and obligations as acknowledged natural children under Article 89[20] irrespective of whether or not the parties to the void marriage are in good faith or in bad faith. On the other hand, a voidable marriage, is considered valid and produces all its civil effects, until it is set aside by final judgment of a competent court in an action for annulment. Juridically, the annulment of a marriage dissolves the special contract as if it had never been entered into but the law makes express provisions to prevent the effects of the marriage from being totally wiped out. The status of children born in voidable marriages is governed by the second paragraph of Article 89 which provides that: Children conceived of voidable marriages before the decree of annulment shall be considered legitimate; and children conceived thereafter shall have the same status, rights and obligations as acknowledged natural children, and are also called natural children by legal fiction.[21] (Emphasis supplied) Stated otherwise, the annulment of the marriage by the court abolishes the legal character of the society formed by the putative spouses, but it cannot destroy the juridical consequences which the marital union produced during its continuance.[22]

Indeed, the terms annul and null and void have different legal connotations and implications. Annul means to reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify; to abolish; to do away with[23] whereas null and void is something that does not exist from the beginning. A marriage that is annulled presupposes that it subsists but later ceases to have legal effect when it is terminated through a court action. But in nullifying a marriage, the court simply declares a status condition which already exists from the very beginning. There is likewise no merit in petitioners argument that it is the dispositive portion of the decision which must control as to whether or not the marriage of respondent Isabels parents was void or voidable. Such argument springs from a miscomprehension of the judgment of the Civil Case No. Q-7180 and the erroneous premise that there is a conflict between the body of the decision and its dispositive portion. Parenthetically, it is an elementary principle of procedure that the resolution of the court in a given issue as embodied in the dispositive part of a decision or order is the controlling factor as to settlement of rights of the parties and the questions presented, notwithstanding statement in the body of the decision or order which may be somewhat confusing,[24] the same is not without qualification. The foregoing rule holds true only when the dispositive part of a final decision or order is definite, clear and unequivocal and can be wholly given effect without need of interpretation or construction which usually is the case where the order or decision in question is that of a court not of record which is not constitutionally required to state the facts and the law on which the judgment is based.[25] Assuming that a doubt or uncertainty exists between the dispositive portion and the body of the decision, effort must be made to harmonize the whole body of the decision in order to give effect to the intention, purpose and judgment of the court. In Republic v. delos Angeles[26] the Court said: Additionally, Article 10 of the Civil Code states that [i]n case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail. This mandate of law, obviously cannot be any less binding upon the courts in relation to its judgments. x x x The judgment must be read in its entirety, and must be construed as a whole so as to bring all of its parts into harmony as far as this can be done by fair and reasonable interpretation and so as to give effect to every word and part if possible, and to effectuate the intention and purpose of the Court, consistent with the provisions of the organic law. (49 C.J.S., pp. 863-864 [Emphasis supplied] Thus, a reading of the pertinent portions of the decision of the CFI of Rizal quoted earlier shows that the marriage is voidable: It is the opinion of Dr. Aramil that the symptoms of the plaintiffs mental aberration classified as schizophernia (sic) had made themselves manifest even as early as 1955; that the disease worsened with time, until 1965 when he was actually placed under expert neuro-psychiatrict (sic) treatment; that even if the subject has shown marked progress, he remains bereft of adequate understanding of right and wrong. There is no controversy that the marriage between the parties was effected on July 9, 1958, years after plaintiffs mental illness had set in. This fact would justify a declaration of nullity of the marriage under Article 85 of the Civil Code which provides: Art. 95 (sic) A marriage may be annulled for any of the following causes, existing at the time of the marriage: xxx xxx xx x (3) That either party was of unsound mind, unless such party, after coming to reason, freely cohabited with the other as husband and wife; xxx xxx xx x There is a dearth of proof at the time of the marriage defendant knew about the mental condition of plaintiff; and there is proof that plaintiff continues to be without sound reason. The charges in this very complaint add emphasis to the finding of the neuro-psychiatrist handling the patient, that plaintiff really lives more in fancy than in reality, a strong indication of schizophernia (sic).[27] Inevitably, the decision of the CFI of Rizal declared null and void the marriage of respondent Isabels parents based on paragraph 3, Article 85 of the New Civil Code. The legal consequences as to the rights of the children are therefore governed by the first clause of the second paragraph of Article 89. A contrary interpretation would be anathema to the rule just above-mentioned. Based on said provision the children of Emilio Aguinaldo Suntay and Isabel Cojuangco-

Suntay who were conceived and born prior to the decree of the trial court setting aside their marriage on October 3, 1967 are considered legitimate. For purposes of seeking appointment as estate administratrix, the legitimate grandchildren, including respondent Isabel, may invoke their successional right of representation in the estate of their grandmother Cirstina Aguinaldo Suntay after their father, Emilio Aguinaldo Suntay, had predeceased their grandmother. This is, however, without prejudice to a determination by the courts of whether Letters of Administration may be granted to her. Neither do the Court adjudged herein the successional rights of the personalities involved over the decedents estate. It would not therefore be amiss to reiterate at this point what the Court, speaking through Chief Justice Ruiz Castro, emphasized to all magistrates of all levels of the judicial hierarchy that extreme degree of care should be exercised in the formulation of the dispositive portion of a decision, because it is this portion that is to be executed once the decision becomes final. The adjudication of the rights and obligations of thoe parties, and the dispositions made as well as the directions and instructions given by the court in the premises in conformity with the body of the decision, must all be spelled out clearly, distinctly and unequivocally leaving absolutely no room for dispute, debate or interpretation.[28] WHEREFORE, finding no grave abuse of discretion, the instant petition is DISMISSED. SO ORDERED. Bellosillo, (Chairman), Puno, and Mendoza, JJ., concur. The Cario vs. Cario case decided by the Supreme Court involved two Susans (one surnamed Nicdao and the other one Yee) married to the same man, SPO4 Santiago S. Cario, and who between the two Susans was entitled to the death benefits of the deceased. This decision however applies to situations where a man (or woman, for that matter) may be married to or cohabiting with several persons, successively or simultaneously, and who among the parties may be entitled to inherit from the man when he dies. Facts of the case: Summary: [1] During his lifetime, SPO4 Santiago S. Cario contracted two marriages: First marriage on June 20, 1969, with Susan Nicdao Cario (Susan Nicdao or Nicdao, for brevity), with whom he had two offsprings, namely, Sahlee and Sandee Cario; Second marriage on November 10, 1992, with Susan Yee Cario (Susan Yee or Yee, for brevity), with whom he had no children in their almost ten year cohabitation starting way back in 1982. [2] 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. The marriage between Susan Nicdao and SPO4 Cario is void for having been solemnized without the necessary marriage license.Their property relations are governed byArticle 147 of the Family Code. Susan Yees marriage to SPO4 Cario is likewise void because it was solemnized without first obtaining a judicial decree declaring his marriage to Nicdao void. Their property relations are governed by Article 148 of the Family Code. Susan Yee is not entitled to any of the death benefits that Susan Nicdao was able to collect. Susan Nicdao, under Article 147 of the Family Code, is entitled to only one half of the death benefits. The other half goes to her children with SPO4 Cario (Sahlee and Sandee) as their inheritance. Under the rules on intestate succession, Susan Nicdao is not an heir of SPO4 Cario.

from MBAI, PCCUI, Commutation, NAPOLCOM, [and] Pag-ibig. Despite service of summons, Nicdao failed to file her answer, prompting the trial court to declare her in default. [5] Susan Yee admitted that her marriage to SPO4 Santiago S. Cario took place during the subsistence of, and without first obtaining a judicial declaration of nullity of, the marriage between Susan Nicdao and SPO4 Cario. She, however, claimed that she had no knowledge of the previous marriage and that she became aware of it only at the funeral of SPO4 Cario, where she met Nicdao who introduced herself as the wife of the deceased. To bolster her action for collection of sum of money, Susan Yee contended that the marriage of Susan Nicdao and SPO4 Cario is void ab initio because it was solemnized without the required marriage license. In support, she presented 1) the marriage certificate of the deceased and the petitioner which bears no marriage license number; 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 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. [7] On appeal by Susan Nicdao to the Court of Appeals, the CA affirmed in whole the decision of the trial court. Nicdao then appealed to the Supreme Court. The Supreme Courts ruling [1] The marriage between Susan Nicdao and SPO4 Cario is vhttp://www.blogger.com/img/blank.gifoid for having been solemnized without the necessary marriage license. Their property relations are governed by Article 147 of the Family Code.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. [2] Susan Yees marriage to SPO4 Cario is likewise void because it was solemnized without first obtaining a judicial decree declaring his marriage to Nicdao void. Their property relations are governed by Article 148 of the Family Code. This article covers 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. [3] Under Article 148, the disputed Php 146,000.00 from MBAI, NAPOLCOM, Commutation, Pag-ibig, and PCCUI, are clearly remunerations, incentives and benefits from governmental agencies earned by SPO4 Cario as a police officer. They are not owned in common by Susan Yee and SPO4 Cario, but belong to the deceased alone and Yee has no right whatsoever to claim the amount. By intestate succession, the said death benefits of the deceased shall pass to his legal heirs. And Yee, not being the legal wife of SPO4 Cario, is not one of them. Under Article 147, one-half of these death benefits belongs to Susan Nicdao as her share in the property regime. By intestate succession, the other half of the benefits belongs to his legal heirs, namely, his children with Susan Nicdao. http://famli.blogspot.com/2006/12/family-code-of-philippinesprimer-on_06.html

[3] Both Susan Nicdao and Susan Yee filed claims for monetary benefits and financial assistance pertaining to the deceased from various government agencies. Susan Nicdao was able to collect a total of Php146,000.00 from MBAI, PCCUI, Commutation, NAPOLCOM, [and] Pag-ibig, while Susan Yee received a total of Php 21,000.00 from GSIS Life, Burial (GSIS) and burial (SSS).

[4] On December 14, 1993, Susan Yee filed a case for collection of sum of money against Susan Nicdao asking her to return at least onehalf of the one hundred forty-six thousand pesos (Php 146,000.00) collectively denominated as death benefits which Nicdao received