1

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 138322 October 2, 2001
GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner,
vs.
REDERICK A. RECIO, respondents.
PANGANIBAN, J.:
A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is
valid according to the national law of the foreigner. However, the divorce decree and the governing
personal law of the alien spouse who obtained the divorce must be proven. Our courts do not take
judicial notice of foreign laws and judgment; hence, like any other facts, both the divorce decree and the
national law of the alien must be alleged and proven according to our law on evidence.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to nullify the January 7,
1999 Decision
1
and the March 24, 1999 Order
2
of the Regional Trial Court of Cabanatuan City, Branch 28,
in Civil Case No. 3026-AF. The assailed Decision disposed as follows:
"WHEREFORE, this Court declares the marriage between Grace J. Garcia and Rederick A. Recio
solemnized on January 12, 1994 at Cabanatuan City as dissolved and both parties can now
remarry under existing and applicable laws to any and/or both parties."
3

The assailed Order denied reconsideration of the above-quoted Decision.
The Facts
Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in Malabon, Rizal, on
March 1, 1987.
4
They lived together as husband and wife in Australia. On May 18, 1989,
5
a decree of
divorce, purportedly dissolving the marriage, was issued by an Australian family court.
On June 26, 1992, respondent became an Australian citizen, as shown by a "Certificate of Australian
Citizenship" issued by the Australian government.
6
Petitioner a Filipina and respondent were married
on January 12, 1994 in Our Lady of Perpetual Help Church in Cabanatuan City.
7
In their application for a
marriage license, respondent was declared as "single" and "Filipino."
8

Starting October 22, 1995, petitioner and respondent lived separately without prior judicial dissolution
of their marriage. While the two were still in Australia, their conjugal assets were divided on May 16,
1996, in accordance with their Statutory Declarations secured in Australia.
9

2

On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage
10
in the court a quo,
on the ground of bigamy respondent allegedly had a prior subsisting marriage at the time he married
her on January 12, 1994. She claimed that she learned of respondent's marriage to Editha Samson only
in November, 1997.
In his Answer, respondent averred that, as far back as 1993, he had revealed to petitioner his prior
marriage andits subsequent dissolution.
11
He contended that his first marriage to an Australian citizen
had been validly dissolved by a divorce decree obtained in Australian in 1989;
12
thus, he was legally
capacitated to marry petitioner in 1994.1wphi1.nt
On July 7, 1998 or about five years after the couple's wedding and while the suit for the declaration of
nullity was pending respondent was able to secure a divorce decree from a family court in Sydney,
Australia because the "marriage ha[d] irretrievably broken down."
13

Respondent prayed in his Answer that the Complained be dismissed on the ground that it stated no
cause of action.
14
The Office of the Solicitor General agreed with respondent.
15
The court marked and
admitted the documentary evidence of both parties.
16
After they submitted their respective
memoranda, the case was submitted for resolution.
17

Thereafter, the trial court rendered the assailed Decision and Order.
Ruling of the Trial Court
The trial court declared the marriage dissolved on the ground that the divorce issued in Australia was
valid and recognized in the Philippines. It deemed the marriage ended, but not on the basis of any
defect in an essential element of the marriage; that is, respondent's alleged lack of legal capacity to
remarry. Rather, it based its Decision on the divorce decree obtained by respondent. The Australian
divorce had ended the marriage; thus, there was no more martial union to nullify or annual.
Hence, this Petition.
18

Issues
Petitioner submits the following issues for our consideration:
"I
The trial court gravely erred in finding that the divorce decree obtained in Australia by the
respondent ipso facto terminated his first marriage to Editha Samson thereby capacitating him
to contract a second marriage with the petitioner.
"2
The failure of the respondent, who is now a naturalized Australian, to present a certificate of
legal capacity to marry constitutes absence of a substantial requisite voiding the petitioner'
marriage to the respondent.
3

"3
The trial court seriously erred in the application of Art. 26 of the Family Code in this case.
"4
The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40, 52 and 53 of
the Family Code as the applicable provisions in this case.
"5
The trial court gravely erred in pronouncing that the divorce gravely erred in pronouncing that
the divorce decree obtained by the respondent in Australia ipso facto capacitated the parties to
remarry, without first securing a recognition of the judgment granting the divorce decree before
our courts."
19

The Petition raises five issues, but for purposes of this Decision, we shall concentrate on two pivotal
ones: (1) whether the divorce between respondent and Editha Samson was proven, and (2) whether
respondent was proven to be legally capacitated to marry petitioner. Because of our ruling on these
two, there is no more necessity to take up the rest.
The Court's Ruling
The Petition is partly meritorious.
First Issue:
Proving the Divorce Between Respondent and Editha Samson
Petitioner assails the trial court's recognition of the divorce between respondent and Editha Samson.
Citing Adong v. Cheong Seng Gee,
20
petitioner argues that the divorce decree, like any other foreign
judgment, may be given recognition in this jurisdiction only upon proof of the existence of (1) the
foreign law allowing absolute divorce and (2) the alleged divorce decree itself. She adds that respondent
miserably failed to establish these elements.
Petitioner adds that, based on the first paragraph of Article 26 of the Family Code, marriages solemnized
abroad are governed by the law of the place where they were celebrated (the lex loci celebrationist). In
effect, the Code requires the presentation of the foreign law to show the conformity of the marriage in
question to the legal requirements of the place where the marriage was performed.
At the outset, we lay the following basic legal principles as the take-off points for our discussion.
Philippine law does not provide for absolute divorce; hence, our courts cannot grant it.
21
A marriage
between two Filipinos cannot be dissolved even by a divorce obtained abroad, because of Articles
15
22
and 17
23
of the Civil Code.
24
In mixed marriages involving a Filipino and a foreigner, Article 26
25
of
the Family Code allows the former to contract a subsequent marriage in case the divorce is "validly
obtained abroad by the alien spouse capacitating him or her to remarry."
26
A divorce obtained abroad
4

by a couple, who are both aliens, may be recognized in the Philippines, provided it is consistent with
their respective national laws.
27

A comparison between marriage and divorce, as far as pleading and proof are concerned, can be
made. Van Dorn v. Romillo Jr. decrees that "aliens may obtain divorces abroad, which may be recognized
in the Philippines, provided they are valid according to their national law."
28
Therefore, before a foreign
divorce decree can be recognized by our courts, the party pleading it must prove the divorce as a fact
and demonstrate its conformity to the foreign law allowing it.
29
Presentation solely of the divorce decree
is insufficient.
Divorce as a Question of Fact
Petitioner insists that before a divorce decree can be admitted in evidence, it must first comply with the
registration requirements under Articles 11, 13 and 52 of the Family Code. These articles read as
follows:
"ART. 11. Where a marriage license is required, each of the contracting parties shall file
separately a sworn application for such license with the proper local civil registrar which shall
specify the following:
x x x x x x x x x
"(5) If previously married, how, when and where the previous marriage was dissolved or
annulled;
x x x x x x x x x
"ART. 13. In case either of the contracting parties has been previously married, the applicant
shall be required to furnish, instead of the birth of baptismal certificate required in the last
preceding article, the death certificate of the deceased spouse or the judicial decree of
annulment or declaration of nullity of his or her previous marriage. x x x.
"ART. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and
distribution of the properties of the spouses, and the delivery of the children's presumptive
legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise,
the same shall not affect their persons."
Respondent, on the other hand, argues that the Australian divorce decree is a public document a
written official act of an Australian family court. Therefore, it requires no further proof of its authenticity
and due execution.
Respondent is getting ahead of himself. Before a foreign judgment is given presumptive evidentiary
value, the document must first be presented and admitted in evidence.
30
A divorce obtained abroad is
proven by the divorce decree itself. Indeed the best evidence of a judgment is the judgment itself.
31
The
decree purports to be a written act or record of an act of an officially body or tribunal of a foreign
country.
32

5

Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven as a
public or official record of a foreign country by either (1) an official publication or (2) a copy thereof
attested
33
by the officer having legal custody of the document. If the record is not kept in the
Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or
consular officer in the Philippine foreign service stationed in the foreign country in which the record is
kept and (b) authenticated by the seal of his office.
34

The divorce decree between respondent and Editha Samson appears to be an authentic one issued by
an Australian family court.
35
However, appearance is not sufficient; compliance with the aforemetioned
rules on evidence must be demonstrated.
Fortunately for respondent's cause, when the divorce decree of May 18, 1989 was submitted in
evidence, counsel for petitioner objected, not to its admissibility, but only to the fact that it had not
been registered in the Local Civil Registry of Cabanatuan City.
36
The trial court ruled that it was
admissible, subject to petitioner's qualification.
37
Hence, it was admitted in evidence and accorded
weight by the judge. Indeed, petitioner's failure to object properly rendered the divorce decree
admissible as a written act of the Family Court of Sydney, Australia.
38

Compliance with the quoted articles (11, 13 and 52) of the Family Code is not necessary; respondent
was no longer bound by Philippine personal laws after he acquired Australian citizenship in
1992.
39
Naturalization is the legal act of adopting an alien and clothing him with the political and civil
rights belonging to a citizen.
40
Naturalized citizens, freed from the protective cloak of their former
states, don the attires of their adoptive countries. By becoming an Australian, respondent severed his
allegiance to the Philippines and the vinculum juris that had tied him to Philippine personal laws.
Burden of Proving Australian Law
Respondent contends that the burden to prove Australian divorce law falls upon petitioner, because she
is the party challenging the validity of a foreign judgment. He contends that petitioner was satisfied with
the original of the divorce decree and was cognizant of the marital laws of Australia, because she had
lived and worked in that country for quite a long time. Besides, the Australian divorce law is allegedly
known by Philippine courts: thus, judges may take judicial notice of foreign laws in the exercise of sound
discretion.
We are not persuaded. The burden of proof lies with "the party who alleges the existence of a fact or
thing necessary in the prosecution or defense of an action."
41
In civil cases, plaintiffs have the burden of
proving the material allegations of the complaint when those are denied by the answer; and defendants
have the burden of proving the material allegations in their answer when they introduce new
matters.
42
Since the divorce was a defense raised by respondent, the burden of proving the pertinent
Australian law validating it falls squarely upon him.
It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws.
43
Like any
other facts, they must be alleged and proved. Australian marital laws are not among those matters that
judges are supposed to know by reason of their judicial function.
44
The power of judicial notice must be
exercised with caution, and every reasonable doubt upon the subject should be resolved in the negative.
Second Issue:
6

Respondent's Legal Capacity to Remarry
Petitioner contends that, in view of the insufficient proof of the divorce, respondent was legally
incapacitated to marry her in 1994.
Hence, she concludes that their marriage was void ab initio.
Respondent replies that the Australian divorce decree, which was validly admitted in evidence,
adequately established his legal capacity to marry under Australian law.
Respondent's contention is untenable. In its strict legal sense, divorce means the legal dissolution of a
lawful union for a cause arising after marriage. But divorces are of different types. The two basic ones
are (1) absolute divorce or a vinculo matrimonii and (2) limited divorce or a mensa et thoro. The first
kind terminates the marriage, while the second suspends it and leaves the bond in full force.
45
There is
no showing in the case at bar which type of divorce was procured by respondent.
Respondent presented a decree nisi or an interlocutory decree a conditional or provisional judgment
of divorce. It is in effect the same as a separation from bed and board, although an absolute divorce may
follow after the lapse of the prescribed period during which no reconciliation is effected.
46

Even after the divorce becomes absolute, the court may under some foreign statutes and practices, still
restrict remarriage. Under some other jurisdictions, remarriage may be limited by statute; thus, the
guilty party in a divorce which was granted on the ground of adultery may be prohibited from
remarrying again. The court may allow a remarriage only after proof of good behavior.
47

On its face, the herein Australian divorce decree contains a restriction that reads:
"1. A party to a marriage who marries again before this decree becomes absolute (unless the
other party has died) commits the offence of bigamy."
48

This quotation bolsters our contention that the divorce obtained by respondent may have been
restricted. It did not absolutely establish his legal capacity to remarry according to his national law.
Hence, we find no basis for the ruling of the trial court, which erroneously assumed that the Australian
divorce ipso facto restored respondent's capacity to remarry despite the paucity of evidence on this
matter.
We also reject the claim of respondent that the divorce decree raises a disputable presumption or
presumptive evidence as to his civil status based on Section 48, Rule 39
49
of the Rules of Court, for the
simple reason that no proof has been presented on the legal effects of the divorce decree obtained
under Australian laws.
Significance of the Certificate of Legal Capacity
Petitioner argues that the certificate of legal capacity required by Article 21 of the Family Code was not
submitted together with the application for a marriage license. According to her, its absence is proof
that respondent did not have legal capacity to remarry.
7

We clarify. To repeat, the legal capacity to contract marriage is determined by the national law of the
party concerned. The certificate mentioned in Article 21 of the Family Code would have been sufficient
to establish the legal capacity of respondent, had he duly presented it in court. A duly authenticated and
admitted certificate is prima facie evidence of legal capacity to marry on the part of the alien applicant
for a marriage license.
50

As it is, however, there is absolutely no evidence that proves respondent's legal capacity to marry
petitioner. A review of the records before this Court shows that only the following exhibits were
presented before the lower court: (1) for petitioner: (a) Exhibit "A" Complaint;
51
(b) Exhibit "B"
Certificate of Marriage Between Rederick A. Recto (Filipino-Australian) and Grace J. Garcia (Filipino) on
January 12, 1994 in Cabanatuan City, Nueva Ecija;
52
(c) Exhibit "C" Certificate of Marriage Between
Rederick A. Recio (Filipino) and Editha D. Samson (Australian) on March 1, 1987 in Malabon, Metro
Manila;
53
(d) Exhibit "D" Office of the City Registrar of Cabanatuan City Certification that no
information of annulment between Rederick A. Recto and Editha D. Samson was in its records;
54
and (e)
Exhibit "E" Certificate of Australian Citizenship of Rederick A. Recto;
55
(2) for respondent: (Exhibit "1"
Amended Answer;
56
(b) Exhibit "S" Family Law Act 1975 Decree Nisi of Dissolution of Marriage in the
Family Court of Australia;
57
(c) Exhibit "3" Certificate of Australian Citizenship of Rederick A.
Recto;
58
(d) Exhibit "4" Decree Nisi of Dissolution of Marriage in the Family Court of Australia
Certificate;
59
and Exhibit "5" Statutory Declaration of the Legal Separation Between Rederick A. Recto
and Grace J. Garcia Recio since October 22, 1995.
60

Based on the above records, we cannot conclude that respondent, who was then a naturalized
Australian citizen, was legally capacitated to marry petitioner on January 12, 1994. We agree with
petitioner's contention that the court a quo erred in finding that the divorce decree ipso facto clothed
respondent with the legal capacity to remarry without requiring him to adduce sufficient evidence to
show the Australian personal law governing his status; or at the very least, to prove his legal capacity to
contract the second marriage.
Neither can we grant petitioner's prayer to declare her marriage to respondent null and void on the
ground of bigamy. After all, it may turn out that under Australian law, he was really capacitated to marry
petitioner as a direct result of the divorce decree. Hence, we believe that the most judicious course is to
remand this case to the trial court to receive evidence, if any, which show petitioner's legal capacity to
marry petitioner. Failing in that, then the court a quo may declare a nullity of the parties' marriage on
the ground of bigamy, there being already in evidence two existing marriage certificates, which were
both obtained in the Philippines, one in Malabon, Metro Manila dated March 1, 1987 and the other, in
Cabanatuan City dated January 12, 1994.
WHEREFORE, in the interest of orderly procedure and substantial justice, we REMAND the case to the
court a quo for the purpose of receiving evidence which conclusively show respondent's legal capacity
to marry petitioner; and failing in that, of declaring the parties' marriage void on the ground of bigamy,
as above discussed. No costs.
SO ORDERED.
Melo, Puno, Vitug, and Sandoval-Gutierrez, JJ., concur.

8

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

MELENCIO-HERRERA, J.:\
In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set aside the
Orders, dated September 15, 1983 and August 3, 1984, in Civil Case No. 1075-P, issued by respondent
Judge, which denied her Motion to Dismiss said case, and her Motion for Reconsideration of the
Dismissal Order, respectively.
The basic background facts are that petitioner is a citizen of the Philippines while private respondent is a
citizen of the United States; that they were married in Hongkong in 1972; that, after the marriage, they
established their residence in the Philippines; that they begot two children born on April 4, 1973 and
December 18, 1975, respectively; that the parties were divorced in Nevada, United States, in 1982; and
that petitioner has re-married also in Nevada, this time to Theodore Van Dorn.
Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No. 1075-P of the
Regional Trial Court, Branch CXV, in Pasay City, stating that petitioner's business in Ermita, Manila, (the
Galleon Shop, for short), is conjugal property of the parties, and asking that petitioner be ordered to
render an accounting of that business, and that private respondent be declared with right to manage
the conjugal property. Petitioner moved to dismiss the case on the ground that the cause of action is
barred by previous judgment in the divorce proceedings before the Nevada Court wherein respondent
had acknowledged that he and petitioner had "no community property" as of June 11, 1982. The Court
below denied the Motion to Dismiss in the mentioned case on the ground that the property involved is
located in the Philippines so that the Divorce Decree has no bearing in the case. The denial is now the
subject of this certiorari proceeding.
Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not subject to appeal.
certiorari and Prohibition are neither the remedies to question the propriety of an interlocutory order of
the trial Court. However, when a grave abuse of discretion was patently committed, or the lower Court
acted capriciously and whimsically, then it devolves upon this Court in a certiorari proceeding to exercise
its supervisory authority and to correct the error committed which, in such a case, is equivalent to lack
of jurisdiction.
1
Prohibition would then lie since it would be useless and a waste of time to go ahead
with the proceedings.
2
Weconsider the petition filed in this case within the exception, and we have
given it due course.
9

For resolution is the effect of the foreign divorce on the parties and their alleged conjugal property in
the Philippines.
Petitioner contends that respondent is estopped from laying claim on the alleged conjugal property
because of the representation he made in the divorce proceedings before the American Court that they
had no community of property; that the Galleon Shop was not established through conjugal funds, and
that respondent's claim is barred by prior judgment.
For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot prevail over
the prohibitive laws of the Philippines and its declared national policy; that the acts and declaration of a
foreign Court cannot, especially if the same is contrary to public policy, divest Philippine Courts of
jurisdiction to entertain matters within its jurisdiction.
For the resolution of this case, it is not necessary to determine whether the property relations between
petitioner and private respondent, after their marriage, were upon absolute or relative community
property, upon complete separation of property, or upon any other regime. The pivotal fact in this case
is the Nevada divorce of the parties.
The Nevada District Court, which decreed the divorce, had obtained jurisdiction over petitioner who
appeared in person before the Court during the trial of the case. It also obtained jurisdiction over private
respondent who, giving his address as No. 381 Bush Street, San Francisco, California, authorized his
attorneys in the divorce case, Karp & Gradt Ltd., to agree to the divorce on the ground of incompatibility
in the understanding that there were neither community property nor community obligations.
3
As
explicitly stated in the Power of Attorney he executed in favor of the law firm of KARP & GRAD LTD., 336
W. Liberty, Reno, Nevada, to represent him in the divorce proceedings:
xxx xxx xxx
You are hereby authorized to accept service of Summons, to file an Answer, appear on
my behalf and do an things necessary and proper to represent me, without further
contesting, subject to the following:
1. That my spouse seeks a divorce on the ground of incompatibility.
2. That there is no community of property to be adjudicated by the Court.
3. 'I'hat there are no community obligations to be adjudicated by the court.
xxx xxx xxx
4

There can be no question as to the validity of that Nevada divorce in any of the States of the United
States. The decree is binding on private respondent as an American citizen. For instance, private
respondent cannot sue petitioner, as her husband, in any State of the Union. What he is contending in
this case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to local
law and public policy.
10

It is true that owing to the nationality principle embodied in Article 15 of the Civil Code,
5
only Philippine
nationals are covered by the policy against absolute divorces the same being considered contrary to our
concept of public police and morality. However, aliens may obtain divorces abroad, which may be
recognized in the Philippines, provided they are valid according to their national law.
6
In this case, the
divorce in Nevada released private respondent from the marriage from the standards of American law,
under which divorce dissolves the marriage. As stated by the Federal Supreme Court of the United States
in Atherton vs. Atherton, 45 L. Ed. 794, 799:
The purpose and effect of a decree of divorce from the bond of matrimony by a court of
competent jurisdiction are to change the existing status or domestic relation of husband
and wife, and to free them both from the bond. The marriage tie when thus severed as
to one party, ceases to bind either. A husband without a wife, or a wife without a
husband, is unknown to the law. When the law provides, in the nature of a penalty. that
the guilty party shall not marry again, that party, as well as the other, is still absolutely
freed from the bond of the former marriage.
Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would
have no standing to sue in the case below as petitioner's husband entitled to exercise control over
conjugal assets. As he is bound by the Decision of his own country's Court, which validly exercised
jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own
representation before said Court from asserting his right over the alleged conjugal property.
To maintain, as private respondent does, that, under our laws, petitioner has to be considered still
married to private respondent and still subject to a wife's obligations under Article 109, et. seq. of the
Civil Code cannot be just. Petitioner should not be obliged to live together with, observe respect and
fidelity, and render support to private respondent. The latter should not continue to be one of her heirs
with possible rights to conjugal property. She should not be discriminated against in her own country if
the ends of justice are to be served.
WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss the Complaint
filed in Civil Case No. 1075-P of his Court.
Without costs.
SO ORDERED.
Teehankee (Chairman), Plana, Relova, Gutierrez, Jr., De la Fuente and Patajo, JJ., concur.

11

FIRST DIVISION

REPUBLIC OF THE PHILIPPINES,
Petitioner,
G.R. No. 154380




- versus -

Present:

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

Promulgated:
October 5, 2005
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION
QUISUMBING, J.:
Given a valid marriage between two Filipino citizens, where one party is later naturalized as a
foreign citizen and obtains a valid divorce decree capacitating him or her to remarry, can the Filipino
spouse likewise remarry under Philippine law?
Before us is a case of first impression that behooves the Court to make a definite ruling on this
apparently novel question, presented as a pure question of law.
In this petition for review, the Solicitor General assails the Decision
[1]
dated May 15, 2002, of the
Regional Trial Court of Molave, Zamboanga del Sur, Branch 23 and its Resolution
[2]
dated July 4, 2002
denying the motion for reconsideration. The court a quo had declared that herein respondent Cipriano
Orbecido III is capacitated to remarry. The fallo of the impugned Decision reads:
12

WHEREFORE, by virtue of the provision of the second paragraph of Art. 26 of the
Family Code and by reason of the divorce decree obtained against him by his American
wife, the petitioner is given the capacity to remarry under the Philippine Law.
IT IS SO ORDERED.
[3]

The factual antecedents, as narrated by the trial court, are as follows.
On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the United Church of
Christ in the Philippines in Lam-an, Ozamis City. Their marriage was blessed with a son and a daughter,
Kristoffer Simbortriz V. Orbecido and Lady Kimberly V. Orbecido.
In 1986, Ciprianos wife left for the United States bringing along their son Kristoffer. A few years
later, Cipriano discovered that his wife had been naturalized as an American citizen.
Sometime in 2000, Cipriano learned from his son that his wife had obtained a divorce decree
and then married a certain Innocent Stanley. She, Stanley and her child by him currently live at 5566 A.
Walnut Grove Avenue, San Gabriel, California.
Cipriano thereafter filed with the trial court a petition for authority to remarry invoking Paragraph
2 of Article 26 of the Family Code. No opposition was filed. Finding merit in the petition, the court
granted the same. The Republic, herein petitioner, through the Office of the Solicitor General (OSG),
sought reconsideration but it was denied.
In this petition, the OSG raises a pure question of law:
WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE 26 OF THE FAMILY
CODE
[4]

13

The OSG contends that Paragraph 2 of Article 26 of the Family Code is not applicable to the
instant case because it only applies to a valid mixed marriage; that is, a marriage celebrated between a
Filipino citizen and an alien. The proper remedy, according to the OSG, is to file a petition for annulment
or for legal separation.
[5]
Furthermore, the OSG argues there is no law that governs respondents
situation. The OSG posits that this is a matter of legislation and not of judicial determination.
[6]

For his part, respondent admits that Article 26 is not directly applicable to his case but insists that
when his naturalized alien wife obtained a divorce decree which capacitated her to remarry, he is
likewise capacitated by operation of law pursuant to Section 12, Article II of the Constitution.
[7]

At the outset, we note that the petition for authority to remarry filed before the trial court actually
constituted a petition for declaratory relief. In this connection, Section 1, Rule 63 of the Rules of Court
provides:
RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES

Section 1. Who may file petitionAny person interested under a deed, will,
contract or other written instrument, or whose rights are affected by a statute,
executive order or regulation, ordinance, or other governmental regulation may, before
breach or violation thereof, bring an action in the appropriate Regional Trial Court to
determine any question of construction or validity arising, and for a declaration of his
rights or duties, thereunder.
. . .
The requisites of a petition for declaratory relief are: (1) there must be a justiciable controversy;
(2) the controversy must be between persons whose interests are adverse; (3) that the party seeking the
relief has a legal interest in the controversy; and (4) that the issue is ripe for judicial determination.
[8]

This case concerns the applicability of Paragraph 2 of Article 26 to a marriage between two
Filipino citizens where one later acquired alien citizenship, obtained a divorce decree, and remarried
14

while in the U.S.A. The interests of the parties are also adverse, as petitioner representing the State
asserts its duty to protect the institution of marriage while respondent, a private citizen, insists on a
declaration of his capacity to remarry. Respondent, praying for relief, has legal interest in the
controversy. The issue raised is also ripe for judicial determination inasmuch as when respondent
remarries, litigation ensues and puts into question the validity of his second marriage.
Coming now to the substantive issue, does Paragraph 2 of Article 26 of the Family Code apply to
the case of respondent? Necessarily, we must dwell on how this provision had come about in the first
place, and what was the intent of the legislators in its enactment?
Brief Historical Background
On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209,
otherwise known as the Family Code, which took effect on August 3, 1988. Article 26 thereof states:
All marriages solemnized outside the Philippines in accordance with the laws in
force in the country where they were solemnized, and valid there as such, shall also be
valid in this country, except those prohibited under Articles 35, 37, and 38.
On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No. 227
was likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A second paragraph
was added to Article 26. As so amended, it now provides:
ART. 26. All marriages solemnized outside the Philippines in accordance with
the laws in force in the country where they were solemnized, and valid there as such,
shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5)
and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly celebrated
and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him
or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine
law. (Emphasis supplied)
15

On its face, the foregoing provision does not appear to govern the situation presented by the
case at hand. It seems to apply only to cases where at the time of the celebration of the marriage, the
parties are a Filipino citizen and a foreigner. The instant case is one where at the time the marriage was
solemnized, the parties were two Filipino citizens, but later on, the wife was naturalized as an American
citizen and subsequently obtained a divorce granting her capacity to remarry, and indeed she remarried
an American citizen while residing in the U.S.A.
Noteworthy, in the Report of the Public Hearings
[9]
on the Family Code, the Catholic Bishops
Conference of the Philippines (CBCP) registered the following objections to Paragraph 2 of Article 26:
1. The rule is discriminatory. It discriminates against those whose spouses are
Filipinos who divorce them abroad. These spouses who are divorced will not be
able to re-marry, while the spouses of foreigners who validly divorce them
abroad can.
2. This is the beginning of the recognition of the validity of divorce even for
Filipino citizens. For those whose foreign spouses validly divorce them abroad
will also be considered to be validly divorced here and can re-marry. We
propose that this be deleted and made into law only after more widespread
consultation. (Emphasis supplied.)
Legislative Intent
Records of the proceedings of the Family Code deliberations showed that the intent of
Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil Code Revision
Committee, is to avoid the absurd situation where the Filipino spouse remains married to the alien
spouse who, after obtaining a divorce, is no longer married to the Filipino spouse.
Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v.
Romillo, Jr.
[10]
The Van Dorn case involved a marriage between a Filipino citizen and a foreigner. The
16

Court held therein that a divorce decree validly obtained by the alien spouse is valid in the Philippines,
and consequently, the Filipino spouse is capacitated to remarry under Philippine law.
Does the same principle apply to a case where at the time of the celebration of the marriage,
the parties were Filipino citizens, but later on, one of them obtains a foreign citizenship by
naturalization?
The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals.
[11]
In Quita,
the parties were, as in this case, Filipino citizens when they got married. The wife became a naturalized
American citizen in 1954 and obtained a divorce in the same year. The Court therein hinted, by way
of obiter dictum, that a Filipino divorced by his naturalized foreign spouse is no longer married under
Philippine law and can thus remarry.
Thus, taking into consideration the legislative intent and applying the rule of reason, we hold
that Paragraph 2 of Article 26 should be interpreted to include cases involving parties who, at the time
of the celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized
as a foreign citizen and obtains a divorce decree. The Filipino spouse should likewise be allowed to
remarry as if the other party were a foreigner at the time of the solemnization of the marriage. To rule
otherwise would be to sanction absurdity and injustice. Where the interpretation of a statute according
to its exact and literal import would lead to mischievous results or contravene the clear purpose of the
legislature, it should be construed according to its spirit and reason, disregarding as far as necessary the
letter of the law. A statute may therefore be extended to cases not within the literal meaning of its
terms, so long as they come within its spirit or intent.
[12]

17

If we are to give meaning to the legislative intent to avoid the absurd situation where the
Filipino spouse remains married to the alien spouse who, after obtaining a divorce is no longer married
to the Filipino spouse, then the instant case must be deemed as coming within the contemplation of
Paragraph 2 of Article 26.
In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article
26 as follows:
1. There is a valid marriage that has been celebrated between a Filipino citizen
and a foreigner; and
2. A valid divorce is obtained abroad by the alien spouse capacitating him or
her to remarry.
The reckoning point is not the citizenship of the parties at the time of the celebration of the
marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse
capacitating the latter to remarry.
In this case, when Ciprianos wife was naturalized as an American citizen, there was still a valid
marriage that has been celebrated between her and Cipriano. As fate would have it, the naturalized
alien wife subsequently obtained a valid divorce capacitating her to remarry. Clearly, the twin requisites
for the application of Paragraph 2 of Article 26 are both present in this case. Thus Cipriano, the
divorced Filipino spouse, should be allowed to remarry.
We are also unable to sustain the OSGs theory that the proper remedy of the Filipino spouse is
to file either a petition for annulment or a petition for legal separation. Annulment would be a long and
tedious process, and in this particular case, not even feasible, considering that the marriage of the
parties appears to have all the badges of validity. On the other hand, legal separation would not be a
18

sufficient remedy for it would not sever the marriage tie; hence, the legally separated Filipino spouse
would still remain married to the naturalized alien spouse.
However, we note that the records are bereft of competent evidence duly submitted by
respondent concerning the divorce decree and the naturalization of respondents wife. It is settled rule
that one who alleges a fact has the burden of proving it and mere allegation is not evidence.
[13]

Accordingly, for his plea to prosper, respondent herein must prove his allegation that his wife was
naturalized as an American citizen. Likewise, before a foreign divorce decree can be recognized by our
own courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the
foreign law allowing it.
[14]
Such foreign law must also be proved as our courts cannot take judicial notice
of foreign laws. Like any other fact, such laws must be alleged and proved.
[15]
Furthermore, respondent
must also show that the divorce decree allows his former wife to remarry as specifically required in
Article 26. Otherwise, there would be no evidence sufficient to declare that he is capacitated to enter
into another marriage.
Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of the Family Code
(E.O. No. 209, as amended by E.O. No. 227), should be interpreted to allow a Filipino citizen, who has
been divorced by a spouse who had acquired foreign citizenship and remarried, also to remarry.
However, considering that in the present petition there is no sufficient evidence submitted and on
record, we are unable to declare, based on respondents bare allegations that his wife, who was
naturalized as an American citizen, had obtained a divorce decree and had remarried an American, that
respondent is now capacitated to remarry. Such declaration could only be made properly upon
respondents submission of the aforecited evidence in his favor.
19

ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED. The
assailed Decision dated May 15, 2002, and Resolution dated July 4, 2002, of the Regional Trial Court of
Molave, Zamboanga del Sur, Branch 23, are hereby SET ASIDE.
No pronouncement as to costs.
SO ORDERED.

LEONARDO A. QUISUMBING
Associate Justice

WE CONCUR:

20

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 196049 June 26, 2013
MINORU FUJIKI, PETITIONER,
vs.
MARIA PAZ GALELA MARINAY, SHINICHI MAEKARA, LOCAL CIVIL REGISTRAR OF QUEZON CITY, AND
THE ADMINISTRATOR AND CIVIL REGISTRAR GENERAL OF THE NATIONAL STATISTICS
OFFICE,RESPONDENTS.
D E C I S I O N
CARPIO, J.:
The Case
This is a direct recourse to this Court from the Regional Trial Court (RTC), Branch 107, Quezon City,
through a petition for review on certiorari under Rule 45 of the Rules of Court on a pure question of law.
The petition assails the Order
1
dated 31 January 2011 of the RTC in Civil Case No. Q-11-68582 and its
Resolution dated 2 March 2011 denying petitioners Motion for Reconsideration. The RTC dismissed the
petition for "Judicial Recognition of Foreign Judgment (or Decree of Absolute Nullity of Marriage)" based
on improper venue and the lack of personality of petitioner, Minoru Fujiki, to file the petition.
The Facts
Petitioner Minoru Fujiki (Fujiki) is a Japanese national who married respondent Maria Paz Galela
Marinay (Marinay) in the Philippines
2
on 23 January 2004. The marriage did not sit well with petitioners
parents. Thus, Fujiki could not bring his wife to Japan where he resides. Eventually, they lost contact
with each other.
In 2008, Marinay met another Japanese, Shinichi Maekara (Maekara). Without the first marriage being
dissolved, Marinay and Maekara were married on 15 May 2008 in Quezon City, Philippines. Maekara
brought Marinay to Japan. However, Marinay allegedly suffered physical abuse from Maekara. She left
Maekara and started to contact Fujiki.
3

Fujiki and Marinay met in Japan and they were able to reestablish their relationship. In 2010, Fujiki
helped Marinay obtain a judgment from a family court in Japan which declared the marriage between
Marinay and Maekara void on the ground of bigamy.
4
On 14 January 2011, Fujiki filed a petition in the
RTC entitled: "Judicial Recognition of Foreign Judgment (or Decree of Absolute Nullity of Marriage)."
Fujiki prayed that (1) the Japanese Family Court judgment be recognized; (2) that the bigamous marriage
between Marinay and Maekara be declared void ab initio under Articles 35(4) and 41 of the Family Code
of the Philippines;
5
and (3) for the RTC to direct the Local Civil Registrar of Quezon City to annotate the
Japanese Family Court judgment on the Certificate of Marriage between Marinay and Maekara and to
21

endorse such annotation to the Office of the Administrator and Civil Registrar General in the National
Statistics Office (NSO).
6

The Ruling of the Regional Trial Court
A few days after the filing of the petition, the RTC immediately issued an Order dismissing the petition
and withdrawing the case from its active civil docket.
7
The RTC cited the following provisions of the Rule
on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (A.M. No.
02-11-10-SC):
Sec. 2. Petition for declaration of absolute nullity of void marriages.
(a) Who may file. A petition for declaration of absolute nullity of void marriage may be filed solely by
the husband or the wife.
x x x x
Sec. 4. Venue. The petition shall be filed in the Family Court of the province or city where the
petitioner or the respondent has been residing for at least six months prior to the date of filing, or in the
case of a non-resident respondent, where he may be found in the Philippines, at the election of the
petitioner. x x x
The RTC ruled, without further explanation, that the petition was in "gross violation" of the above
provisions. The trial court based its dismissal on Section 5(4) of A.M. No. 02-11-10-SC which provides
that "[f]ailure to comply with any of the preceding requirements may be a ground for immediate
dismissal of the petition."
8
Apparently, the RTC took the view that only "the husband or the wife," in this
case either Maekara or Marinay, can file the petition to declare their marriage void, and not Fujiki.
Fujiki moved that the Order be reconsidered. He argued that A.M. No. 02-11-10-SC contemplated
ordinary civil actions for declaration of nullity and annulment of marriage. Thus, A.M. No. 02-11-10-SC
does not apply. A petition for recognition of foreign judgment is a special proceeding, which "seeks to
establish a status, a right or a particular fact,"
9
and not a civil action which is "for the enforcement or
protection of a right, or the prevention or redress of a wrong."
10
In other words, the petition in the RTC
sought to establish (1) the status and concomitant rights of Fujiki and Marinay as husband and wife and
(2) the fact of the rendition of the Japanese Family Court judgment declaring the marriage between
Marinay and Maekara as void on the ground of bigamy. The petitioner contended that the Japanese
judgment was consistent with Article 35(4) of the Family Code of the Philippines
11
on bigamy and was
therefore entitled to recognition by Philippine courts.
12

In any case, it was also Fujikis view that A.M. No. 02-11-10-SC applied only to void marriages under
Article 36 of the Family Code on the ground of psychological incapacity.
13
Thus, Section 2(a) of A.M. No.
02-11-10-SC provides that "a petition for declaration of absolute nullity of void marriages may be filed
solely by the husband or the wife." To apply Section 2(a) in bigamy would be absurd because only the
guilty parties would be permitted to sue. In the words of Fujiki, "[i]t is not, of course, difficult to realize
that the party interested in having a bigamous marriage declared a nullity would be the husband in the
prior, pre-existing marriage."
14
Fujiki had material interest and therefore the personality to nullify a
bigamous marriage.
22

Fujiki argued that Rule 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules of
Court is applicable. Rule 108 is the "procedural implementation" of the Civil Register Law (Act No.
3753)
15
in relation to Article 413 of the Civil Code.
16
The Civil Register Law imposes a duty on the
"successful petitioner for divorce or annulment of marriage to send a copy of the final decree of the
court to the local registrar of the municipality where the dissolved or annulled marriage was
solemnized."
17
Section 2 of Rule 108 provides that entries in the civil registry relating to "marriages,"
"judgments of annulments of marriage" and "judgments declaring marriages void from the beginning"
are subject to cancellation or correction.
18
The petition in the RTC sought (among others) to annotate
the judgment of the Japanese Family Court on the certificate of marriage between Marinay and
Maekara.
Fujikis motion for reconsideration in the RTC also asserted that the trial court "gravely erred" when, on
its own, it dismissed the petition based on improper venue. Fujiki stated that the RTC may be confusing
the concept of venue with the concept of jurisdiction, because it is lack of jurisdiction which allows a
court to dismiss a case on its own. Fujiki cited Dacoycoy v. Intermediate Appellate Court
19
which held
that the "trial court cannot pre-empt the defendants prerogative to object to the improper laying of the
venue by motu proprio dismissing the case."
20
Moreover, petitioner alleged that the trial court should
not have "immediately dismissed" the petition under Section 5 of A.M. No. 02-11-10-SC because he
substantially complied with the provision.
On 2 March 2011, the RTC resolved to deny petitioners motion for reconsideration. In its Resolution,
the RTC stated that A.M. No. 02-11-10-SC applies because the petitioner, in effect, prays for a decree of
absolute nullity of marriage.
21
The trial court reiterated its two grounds for dismissal, i.e. lack of
personality to sue and improper venue under Sections 2(a) and 4 of A.M. No. 02-11-10-SC. The RTC
considered Fujiki as a "third person"
22
in the proceeding because he "is not the husband in the decree of
divorce issued by the Japanese Family Court, which he now seeks to be judicially recognized, x x x."
23
On
the other hand, the RTC did not explain its ground of impropriety of venue. It only said that "[a]lthough
the Court cited Sec. 4 (Venue) x x x as a ground for dismissal of this case[,] it should be taken together
with the other ground cited by the Court x x x which is Sec. 2(a) x x x."
24

The RTC further justified its motu proprio dismissal of the petition based on Braza v. The City Civil
Registrar of Himamaylan City, Negros Occidental.
25
The Court in Braza ruled that "[i]n a special
proceeding for correction of entry under Rule 108 (Cancellation or Correction of Entries in the Original
Registry), the trial court has no jurisdiction to nullify marriages x x x."
26
Braza emphasized that the
"validity of marriages as well as legitimacy and filiation can be questioned only in a direct action
seasonably filed by the proper party, and not through a collateral attack such as [a] petition [for
correction of entry] x x x."
27

The RTC considered the petition as a collateral attack on the validity of marriage between Marinay and
Maekara. The trial court held that this is a "jurisdictional ground" to dismiss the petition.
28
Moreover,
the verification and certification against forum shopping of the petition was not authenticated as
required under Section 5
29
of A.M. No. 02-11-10-SC. Hence, this also warranted the "immediate
dismissal" of the petition under the same provision.
The Manifestation and Motion of the Office of the Solicitor General and the Letters of Marinay and
Maekara
23

On 30 May 2011, the Court required respondents to file their comment on the petition for review.
30
The
public respondents, the Local Civil Registrar of Quezon City and the Administrator and Civil Registrar
General of the NSO, participated through the Office of the Solicitor General. Instead of a comment, the
Solicitor General filed a Manifestation and Motion.
31

The Solicitor General agreed with the petition. He prayed that the RTCs "pronouncement that the
petitioner failed to comply with x x x A.M. No. 02-11-10-SC x x x be set aside" and that the case be
reinstated in the trial court for further proceedings.
32
The Solicitor General argued that Fujiki, as the
spouse of the first marriage, is an injured party who can sue to declare the bigamous marriage between
Marinay and Maekara void. The Solicitor General cited Juliano-Llave v. Republic
33
which held that
Section 2(a) of A.M. No. 02-11-10-SC does not apply in cases of bigamy. In Juliano-Llave, this Court
explained:
[t]he subsequent spouse may only be expected to take action if he or she had only discovered during the
connubial period that the marriage was bigamous, and especially if the conjugal bliss had already
vanished. Should parties in a subsequent marriage benefit from the bigamous marriage, it would not be
expected that they would file an action to declare the marriage void and thus, in such circumstance, the
"injured spouse" who should be given a legal remedy is the one in a subsisting previous marriage. The
latter is clearly the aggrieved party as the bigamous marriage not only threatens the financial and the
property ownership aspect of the prior marriage but most of all, it causes an emotional burden to the
prior spouse. The subsequent marriage will always be a reminder of the infidelity of the spouse and the
disregard of the prior marriage which sanctity is protected by the Constitution.
34

The Solicitor General contended that the petition to recognize the Japanese Family Court judgment may
be made in a Rule 108 proceeding.
35
In Corpuz v. Santo Tomas,
36
this Court held that "[t]he recognition
of the foreign divorce decree may be made in a Rule 108 proceeding itself, as the object of special
proceedings (such as that in Rule 108 of the Rules of Court) is precisely to establish the status or right of
a party or a particular fact."
37
WhileCorpuz concerned a foreign divorce decree, in the present case the
Japanese Family Court judgment also affected the civil status of the parties, especially Marinay, who is a
Filipino citizen.
The Solicitor General asserted that Rule 108 of the Rules of Court is the procedure to record "[a]cts,
events and judicial decrees concerning the civil status of persons" in the civil registry as required by
Article 407 of the Civil Code. In other words, "[t]he law requires the entry in the civil registry of judicial
decrees that produce legal consequences upon a persons legal capacity and status x x x."
38
The
Japanese Family Court judgment directly bears on the civil status of a Filipino citizen and should
therefore be proven as a fact in a Rule 108 proceeding.
Moreover, the Solicitor General argued that there is no jurisdictional infirmity in assailing a void
marriage under Rule 108, citing De Castro v. De Castro
39
and Nial v. Bayadog
40
which declared that
"[t]he validity of a void marriage may be collaterally attacked."
41

Marinay and Maekara individually sent letters to the Court to comply with the directive for them to
comment on the petition.
42
Maekara wrote that Marinay concealed from him the fact that she was
previously married to Fujiki.
43
Maekara also denied that he inflicted any form of violence on
Marinay.
44
On the other hand, Marinay wrote that she had no reason to oppose the petition.
45
She
would like to maintain her silence for fear that anything she say might cause misunderstanding between
her and Fujiki.
46

24

The Issues
Petitioner raises the following legal issues:
(1) Whether the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of
Voidable Marriages (A.M. No. 02-11-10-SC) is applicable.
(2) Whether a husband or wife of a prior marriage can file a petition to recognize a foreign
judgment nullifying the subsequent marriage between his or her spouse and a foreign citizen on
the ground of bigamy.
(3) Whether the Regional Trial Court can recognize the foreign judgment in a proceeding for
cancellation or correction of entries in the Civil Registry under Rule 108 of the Rules of Court.
The Ruling of the Court
We grant the petition.
The Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages
(A.M. No. 02-11-10-SC) does not apply in a petition to recognize a foreign judgment relating to the
status of a marriage where one of the parties is a citizen of a foreign country. Moreover, in Juliano-Llave
v. Republic,
47
this Court held that the rule in A.M. No. 02-11-10-SC that only the husband or wife can file
a declaration of nullity or annulment of marriage "does not apply if the reason behind the petition is
bigamy."
48

I.
For Philippine courts to recognize a foreign judgment relating to the status of a marriage where one of
the parties is a citizen of a foreign country, the petitioner only needs to prove the foreign judgment as a
fact under the Rules of Court. To be more specific, a copy of the foreign judgment may be admitted in
evidence and proven as a fact under Rule 132, Sections 24 and 25, in relation to Rule 39, Section 48(b) of
the Rules of Court.
49
Petitioner may prove the Japanese Family Court judgment through (1) an official
publication or (2) a certification or copy attested by the officer who has custody of the judgment. If the
office which has custody is in a foreign country such as Japan, the certification may be made by the
proper diplomatic or consular officer of the Philippine foreign service in Japan and authenticated by the
seal of office.
50

To hold that A.M. No. 02-11-10-SC applies to a petition for recognition of foreign judgment would mean
that the trial court and the parties should follow its provisions, including the form and contents of the
petition,
51
the service of summons,
52
the investigation of the public prosecutor,
53
the setting of pre-
trial,
54
the trial
55
and the judgment of the trial court.
56
This is absurd because it will litigate the case
anew. It will defeat the purpose of recognizing foreign judgments, which is "to limit repetitive litigation
on claims and issues."
57
The interpretation of the RTC is tantamount to relitigating the case on the
merits. In Mijares v. Raada,
58
this Court explained that "[i]f every judgment of a foreign court were
reviewable on the merits, the plaintiff would be forced back on his/her original cause of action,
rendering immaterial the previously concluded litigation."
59

25

A foreign judgment relating to the status of a marriage affects the civil status, condition and legal
capacity of its parties. However, the effect of a foreign judgment is not automatic. To extend the effect
of a foreign judgment in the Philippines, Philippine courts must determine if the foreign judgment is
consistent with domestic public policy and other mandatory laws.
60
Article 15 of the Civil Code provides
that "[l]aws relating to family rights and duties, or to the status, condition and legal capacity of persons
are binding upon citizens of the Philippines, even though living abroad." This is the rule of lex
nationalii in private international law. Thus, the Philippine State may require, for effectivity in the
Philippines, recognition by Philippine courts of a foreign judgment affecting its citizen, over whom it
exercises personal jurisdiction relating to the status, condition and legal capacity of such citizen.
A petition to recognize a foreign judgment declaring a marriage void does not require relitigation under
a Philippine court of the case as if it were a new petition for declaration of nullity of marriage. Philippine
courts cannot presume to know the foreign laws under which the foreign judgment was rendered. They
cannot substitute their judgment on the status, condition and legal capacity of the foreign citizen who is
under the jurisdiction of another state. Thus, Philippine courts can only recognize the foreign
judgment as a fact according to the rules of evidence.
Section 48(b), Rule 39 of the Rules of Court provides that a foreign judgment or final order against a
person creates a "presumptive evidence of a right as between the parties and their successors in
interest by a subsequent title." Moreover, Section 48 of the Rules of Court states that "the judgment or
final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion,
fraud, or clear mistake of law or fact." Thus, Philippine courts exercise limited review on foreign
judgments. Courts are not allowed to delve into the merits of a foreign judgment. Once a foreign
judgment is admitted and proven in a Philippine court, it can only be repelled on grounds external to its
merits, i.e. , "want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or
fact." The rule on limited review embodies the policy of efficiency and the protection of party
expectations,
61
as well as respecting the jurisdiction of other states.
62

Since 1922 in Adong v. Cheong Seng Gee,
63
Philippine courts have recognized foreign divorce decrees
between a Filipino and a foreign citizen if they are successfully proven under the rules of
evidence.
64
Divorce involves the dissolution of a marriage, but the recognition of a foreign divorce
decree does not involve the extended procedure under A.M. No. 02-11-10-SC or the rules of ordinary
trial. While the Philippines does not have a divorce law, Philippine courts may, however, recognize a
foreign divorce decree under the second paragraph of Article 26 of the Family Code, to capacitate a
Filipino citizen to remarry when his or her foreign spouse obtained a divorce decree abroad.
65

There is therefore no reason to disallow Fujiki to simply prove as a fact the Japanese Family Court
judgment nullifying the marriage between Marinay and Maekara on the ground of bigamy. While the
Philippines has no divorce law, the Japanese Family Court judgment is fully consistent with Philippine
public policy, as bigamous marriages are declared void from the beginning under Article 35(4) of the
Family Code. Bigamy is a crime under Article 349 of the Revised Penal Code. Thus, Fujiki can prove the
existence of the Japanese Family Court judgment in accordance with Rule 132, Sections 24 and 25, in
relation to Rule 39, Section 48(b) of the Rules of Court.
II.
Since the recognition of a foreign judgment only requires proof of fact of the judgment, it may be made
in a special proceeding for cancellation or correction of entries in the civil registry under Rule 108 of the
26

Rules of Court. Rule 1, Section 3 of the Rules of Court provides that "[a] special proceeding is a remedy
by which a party seeks to establish a status, a right, or a particular fact." Rule 108 creates a remedy to
rectify facts of a persons life which are recorded by the State pursuant to the Civil Register Law or Act
No. 3753. These are facts of public consequence such as birth, death or marriage,
66
which the State has
an interest in recording. As noted by the Solicitor General, in Corpuz v. Sto. Tomas this Court declared
that "[t]he recognition of the foreign divorce decree may be made in a Rule 108 proceeding itself, as the
object of special proceedings (such as that in Rule 108 of the Rules of Court) is precisely to establish the
status or right of a party or a particular fact."
67

Rule 108, Section 1 of the Rules of Court states:
Sec. 1. Who may file petition. Any person interested in any act, event, order or decree concerning
the civil status of persons which has been recorded in the civil register, may file a verified petition for
the cancellation or correction of any entry relating thereto, with the Regional Trial Court of the province
where the corresponding civil registry is located. (Emphasis supplied)
Fujiki has the personality to file a petition to recognize the Japanese Family Court judgment nullifying
the marriage between Marinay and Maekara on the ground of bigamy because the judgment concerns
his civil status as married to Marinay. For the same reason he has the personality to file a petition under
Rule 108 to cancel the entry of marriage between Marinay and Maekara in the civil registry on the basis
of the decree of the Japanese Family Court.
There is no doubt that the prior spouse has a personal and material interest in maintaining the integrity
of the marriage he contracted and the property relations arising from it. There is also no doubt that he is
interested in the cancellation of an entry of a bigamous marriage in the civil registry, which
compromises the public record of his marriage. The interest derives from the substantive right of the
spouse not only to preserve (or dissolve, in limited instances
68
) his most intimate human relation, but
also to protect his property interests that arise by operation of law the moment he contracts
marriage.
69
These property interests in marriage include the right to be supported "in keeping with the
financial capacity of the family"
70
and preserving the property regime of the marriage.
71

Property rights are already substantive rights protected by the Constitution,
72
but a spouses right in a
marriage extends further to relational rights recognized under Title III ("Rights and Obligations between
Husband and Wife") of the Family Code.
73
A.M. No. 02-11-10-SC cannot "diminish, increase, or modify"
the substantive right of the spouse to maintain the integrity of his marriage.
74
In any case, Section 2(a) of
A.M. No. 02-11-10-SC preserves this substantive right by limiting the personality to sue to the husband
or the wife of the union recognized by law.
Section 2(a) of A.M. No. 02-11-10-SC does not preclude a spouse of a subsisting marriage to question
the validity of a subsequent marriage on the ground of bigamy. On the contrary, when Section 2(a)
states that "[a] petition for declaration of absolute nullity of void marriage may be filed solely by the
husband or the wife"
75
it refers to the husband or the wife of the subsisting marriage. Under Article
35(4) of the Family Code, bigamous marriages are void from the beginning. Thus, the parties in a
bigamous marriage are neither the husband nor the wife under the law. The husband or the wife of the
prior subsisting marriage is the one who has the personality to file a petition for declaration of absolute
nullity of void marriage under Section 2(a) of A.M. No. 02-11-10-SC.
27

Article 35(4) of the Family Code, which declares bigamous marriages void from the beginning, is the civil
aspect of Article 349 of the Revised Penal Code,
76
which penalizes bigamy. Bigamy is a public crime.
Thus, anyone can initiate prosecution for bigamy because any citizen has an interest in the prosecution
and prevention of crimes.
77
If anyone can file a criminal action which leads to the declaration of nullity of
a bigamous marriage,
78
there is more reason to confer personality to sue on the husband or the wife of a
subsisting marriage. The prior spouse does not only share in the public interest of prosecuting and
preventing crimes, he is also personally interested in the purely civil aspect of protecting his marriage.
When the right of the spouse to protect his marriage is violated, the spouse is clearly an injured party
and is therefore interested in the judgment of the suit.
79
Juliano-Llave ruled that the prior spouse "is
clearly the aggrieved party as the bigamous marriage not only threatens the financial and the property
ownership aspect of the prior marriage but most of all, it causes an emotional burden to the prior
spouse."
80
Being a real party in interest, the prior spouse is entitled to sue in order to declare a
bigamous marriage void. For this purpose, he can petition a court to recognize a foreign judgment
nullifying the bigamous marriage and judicially declare as a fact that such judgment is effective in the
Philippines. Once established, there should be no more impediment to cancel the entry of the bigamous
marriage in the civil registry.
III.
In Braza v. The City Civil Registrar of Himamaylan City, Negros Occidental, this Court held that a "trial
court has no jurisdiction to nullify marriages" in a special proceeding for cancellation or correction of
entry under Rule 108 of the Rules of Court.
81
Thus, the "validity of marriage[] x x x can be questioned
only in a direct action" to nullify the marriage.
82
The RTC relied on Braza in dismissing the petition for
recognition of foreign judgment as a collateral attack on the marriage between Marinay and Maekara.
Braza is not applicable because Braza does not involve a recognition of a foreign judgment nullifying a
bigamous marriage where one of the parties is a citizen of the foreign country.
To be sure, a petition for correction or cancellation of an entry in the civil registry cannot substitute for
an action to invalidate a marriage. A direct action is necessary to prevent circumvention of the
substantive and procedural safeguards of marriage under the Family Code, A.M. No. 02-11-10-SC and
other related laws. Among these safeguards are the requirement of proving the limited grounds for the
dissolution of marriage,
83
support pendente lite of the spouses and children,
84
the liquidation, partition
and distribution of the properties of the spouses,
85
and the investigation of the public prosecutor to
determine collusion.
86
A direct action for declaration of nullity or annulment of marriage is also
necessary to prevent circumvention of the jurisdiction of the Family Courts under the Family Courts Act
of 1997 (Republic Act No. 8369), as a petition for cancellation or correction of entries in the civil registry
may be filed in the Regional Trial Court "where the corresponding civil registry is located."
87
In other
words, a Filipino citizen cannot dissolve his marriage by the mere expedient of changing his entry of
marriage in the civil registry.
However, this does not apply in a petition for correction or cancellation of a civil registry entry based on
the recognition of a foreign judgment annulling a marriage where one of the parties is a citizen of the
foreign country. There is neither circumvention of the substantive and procedural safeguards of
marriage under Philippine law, nor of the jurisdiction of Family Courts under R.A. No. 8369. A
recognition of a foreign judgment is not an action to nullify a marriage. It is an action for Philippine
courts to recognize the effectivity of a foreign judgment, which presupposes a case which was already
28

tried and decided under foreign law. The procedure in A.M. No. 02-11-10-SC does not apply in a
petition to recognize a foreign judgment annulling a bigamous marriage where one of the parties is a
citizen of the foreign country. Neither can R.A. No. 8369 define the jurisdiction of the foreign court.
Article 26 of the Family Code confers jurisdiction on Philippine courts to extend the effect of a foreign
divorce decree to a Filipino spouse without undergoing trial to determine the validity of the dissolution
of the marriage. The second paragraph of Article 26 of the Family Code provides that "[w]here a
marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter
validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall
have capacity to remarry under Philippine law." InRepublic v. Orbecido,
88
this Court recognized the
legislative intent of the second paragraph of Article 26 which is "to avoid the absurd situation where the
Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married
to the Filipino spouse"
89
under the laws of his or her country. The second paragraph of Article 26 of the
Family Code only authorizes Philippine courts to adopt the effects of a foreign divorce decree precisely
because the Philippines does not allow divorce. Philippine courts cannot try the case on the merits
because it is tantamount to trying a case for divorce.
The second paragraph of Article 26 is only a corrective measure to address the anomaly that results
from a marriage between a Filipino, whose laws do not allow divorce, and a foreign citizen, whose laws
allow divorce. The anomaly consists in the Filipino spouse being tied to the marriage while the foreign
spouse is free to marry under the laws of his or her country. The correction is made by extending in the
Philippines the effect of the foreign divorce decree, which is already effective in the country where it
was rendered. The second paragraph of Article 26 of the Family Code is based on this Courts decision
in Van Dorn v. Romillo
90
which declared that the Filipino spouse "should not be discriminated against in
her own country if the ends of justice are to be served."
91

The principle in Article 26 of the Family Code applies in a marriage between a Filipino and a foreign
citizen who obtains a foreign judgment nullifying the marriage on the ground of bigamy. The Filipino
spouse may file a petition abroad to declare the marriage void on the ground of bigamy. The principle in
the second paragraph of Article 26 of the Family Code applies because the foreign spouse, after the
foreign judgment nullifying the marriage, is capacitated to remarry under the laws of his or her country.
If the foreign judgment is not recognized in the Philippines, the Filipino spouse will be discriminated
the foreign spouse can remarry while the Filipino spouse cannot remarry.
Under the second paragraph of Article 26 of the Family Code, Philippine courts are empowered to
correct a situation where the Filipino spouse is still tied to the marriage while the foreign spouse is free
to marry. Moreover, notwithstanding Article 26 of the Family Code, Philippine courts already have
jurisdiction to extend the effect of a foreign judgment in the Philippines to the extent that the foreign
judgment does not contravene domestic public policy. A critical difference between the case of a foreign
divorce decree and a foreign judgment nullifying a bigamous marriage is that bigamy, as a ground for
the nullity of marriage, is fully consistent with Philippine public policy as expressed in Article 35(4) of the
Family Code and Article 349 of the Revised Penal Code. The Filipino spouse has the option to undergo
full trial by filing a petition for declaration of nullity of marriage under A.M. No. 02-11-10-SC, but this is
not the only remedy available to him or her. Philippine courts have jurisdiction to recognize a foreign
judgment nullifying a bigamous marriage, without prejudice to a criminal prosecution for bigamy.
In the recognition of foreign judgments, Philippine courts are incompetent to substitute their judgment
on how a case was decided under foreign law. They cannot decide on the "family rights and duties, or on
29

the status, condition and legal capacity" of the foreign citizen who is a party to the foreign judgment.
Thus, Philippine courts are limited to the question of whether to extend the effect of a foreign judgment
in the Philippines. In a foreign judgment relating to the status of a marriage involving a citizen of a
foreign country, Philippine courts only decide whether to extend its effect to the Filipino party, under
the rule of lex nationalii expressed in Article 15 of the Civil Code.
For this purpose, Philippine courts will only determine (1) whether the foreign judgment is inconsistent
with an overriding public policy in the Philippines; and (2) whether any alleging party is able to prove an
extrinsic ground to repel the foreign judgment, i.e. want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact. If there is neither inconsistency with public policy nor
adequate proof to repel the judgment, Philippine courts should, by default, recognize the foreign
judgment as part of the comity of nations. Section 48(b), Rule 39 of the Rules of Court states that the
foreign judgment is already "presumptive evidence of a right between the parties." Upon recognition of
the foreign judgment, this right becomes conclusive and the judgment serves as the basis for the
correction or cancellation of entry in the civil registry. The recognition of the foreign judgment nullifying
a bigamous marriage is a subsequent event that establishes a new status, right and fact
92
that needs to
be reflected in the civil registry. Otherwise, there will be an inconsistency between the recognition of
the effectivity of the foreign judgment and the public records in the Philippines.1wphi1
However, the recognition of a foreign judgment nullifying a bigamous marriage is without prejudice to
prosecution for bigamy under Article 349 of the Revised Penal Code.
93
The recognition of a foreign
judgment nullifying a bigamous marriage is not a ground for extinction of criminal liability under Articles
89 and 94 of the Revised Penal Code. Moreover, under Article 91 of the Revised Penal Code, "[t]he term
of prescription [of the crime of bigamy] shall not run when the offender is absent from the Philippine
archipelago."
Since A.M. No. 02-11-10-SC is inapplicable, the Court no longer sees the need to address the questions
on venue and the contents and form of the petition under Sections 4 and 5, respectively, of A.M. No. 02-
11-10-SC.
WHEREFORE, we GRANT the petition. The Order dated 31 January 2011 and the Resolution dated 2
March 2011 of the Regional Trial Court, Branch 107, Quezon City, in Civil Case No. Q-11-68582
are REVERSED andSET ASIDE. The Regional Trial Court is ORDERED to REINSTATE the petition for further
proceedings in accordance with this Decision.
SO ORDERED.
Brion, Del Castillo, Perez, and Perlas-Bernabe, JJ., concur.

30

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 133778 March 14, 2000
ENGRACE NIAL for Herself and as Guardian ad Litem of the minors BABYLINE NIAL, INGRID NIAL,
ARCHIE NIAL & PEPITO NIAL, JR., petitioners,
vs.
NORMA BAYADOG, respondent.
YNARES-SANTIAGO, J.:
May the heirs of a deceased person file a petition for the declaration of nullity of his marriage after his
death?
Pepito Nial was married to Teodulfa Bellones on September 26, 1974. Out of their marriage were born
herein petitioners. Teodulfa was shot by Pepito resulting in her death on April 24, 1985. One year and 8
months thereafter or on December 11, 1986, Pepito and respondent Norma Badayog got married
without any marriage license. In lieu thereof, Pepito and Norma executed an affidavit dated December
11, 1986 stating that they had lived together as husband and wife for at least five years and were thus
exempt from securing a marriage license. On February 19, 1997, Pepito died in a car accident. After their
father's death, petitioners filed a petition for declaration of nullity of the marriage of Pepito to Norma
alleging that the said marriage was void for lack of a marriage license. The case was filed under the
assumption that the validity or invalidity of the second marriage would affect petitioner's successional
rights. Norma filed a motion to dismiss on the ground that petitioners have no cause of action since they
are not among the persons who could file an action for "annulment of marriage" under Article 47 of the
Family Code.
Judge Ferdinand J. Marcos of the Regional Trial Court of Toledo City, Cebu, Branch 59, dismissed the
petition after finding that the Family Code is "rather silent, obscure, insufficient" to resolve the following
issues:
(1) Whether or not plaintiffs have a cause of action against defendant in asking for the
declaration of the nullity of marriage of their deceased father, Pepito G. Nial, with her specially
so when at the time of the filing of this instant suit, their father Pepito G. Nial is already dead;
(2) Whether or not the second marriage of plaintiffs' deceased father with defendant is null and
void ab initio;
(3) Whether or not plaintiffs are estopped from assailing the validity of the second marriage
after it was dissolved due to their father's death.
1

Thus, the lower court ruled that petitioners should have filed the action to declare null and void their
father's marriage to respondent before his death, applying by analogy Article 47 of the Family Code
31

which enumerates the time and the persons who could initiate an action for annulment of
marriage.
2
Hence, this petition for review with this Court grounded on a pure question of law.
This petition was originally dismissed for non-compliance with Section 11, Rule 13 of the 1997 Rules of
Civil Procedure, and because "the verification failed to state the basis of petitioner's averment that the
allegations in the petition are "true and correct"." It was thus treated as an unsigned pleading which
produces no legal effect under Section 3, Rule 7, of the 1997 Rules.
3
However, upon motion of
petitioners, this Court reconsidered the dismissal and reinstated the petition for review.
4

The two marriages involved herein having been solemnized prior to the effectivity of the Family Code
(FC), the applicable law to determine their validity is the Civil Code which was the law in effect at the
time of their celebration.
5
A valid marriage license is a requisite of marriage under Article 53 of the Civil
Code,
6
the absence of which renders the marriage void ab initio pursuant to Article 80(3)
7
in relation to
Article 58.
8
The requirement and issuance of marriage license is the State's demonstration of its
involvement and participation in every marriage, in the maintenance of which the general public is
interested.
9
This interest proceeds from the constitutional mandate that the State recognizes the
sanctity of family life and of affording protection to the family as a basic "autonomous social
institution."
10
Specifically, the Constitution considers marriage as an "inviolable social institution," and is
the foundation of family life which shall be protected by the State.
11
This is why the Family Code
considers marriage as "a special contract of permanent union"
12
and case law considers it "not just an
adventure but a lifetime commitment."
13

However, there are several instances recognized by the Civil Code wherein a marriage license is
dispensed with, one of which is that provided in Article 76,
14
referring to the marriage of a man and a
woman who have lived together and exclusively with each other as husband and wife for a continuous
and unbroken period of at least five years before the marriage. The rationale why no license is required
in such case is to avoid exposing the parties to humiliation, shame and embarrassment concomitant
with the scandalous cohabitation of persons outside a valid marriage due to the publication of every
applicant's name for a marriage license. The publicity attending the marriage license may discourage
such persons from legitimizing their status.
15
To preserve peace in the family, avoid the peeping and
suspicious eye of public exposure and contain the source of gossip arising from the publication of their
names, the law deemed it wise to preserve their privacy and exempt them from that requirement.
There is no dispute that the marriage of petitioners' father to respondent Norma was celebrated
without any marriage license. In lieu thereof, they executed an affidavit stating that "they have attained
the age of majority, and, being unmarried, have lived together as husband and wife for at least five
years, and that we now desire to marry each other."
16
The only issue that needs to be resolved pertains
to what nature of cohabitation is contemplated under Article 76 of the Civil Code to warrant the
counting of the five year period in order to exempt the future spouses from securing a marriage license.
Should it be a cohabitation wherein both parties are capacitated to marry each other during the entire
five-year continuous period or should it be a cohabitation wherein both parties have lived together and
exclusively with each other as husband and wife during the entire five-year continuous period regardless
of whether there is a legal impediment to their being lawfully married, which impediment may have
either disappeared or intervened sometime during the cohabitation period?
Working on the assumption that Pepito and Norma have lived together as husband and wife for five
years without the benefit of marriage, that five-year period should be computed on the basis of a
cohabitation as "husband and wife" where the only missing factor is the special contract of marriage to
32

validate the union. In other words, the five-year common-law cohabitation period, which is counted
back from the date of celebration of marriage, should be a period of legal union had it not been for the
absence of the marriage. This 5-year period should be the years immediately before the day of the
marriage and it should be a period of cohabitation characterized by exclusivity meaning no third party
was involved at anytime within the 5 years and continuity that is unbroken. Otherwise, if that
continuous 5-year cohabitation is computed without any distinction as to whether the parties were
capacitated to marry each other during the entire five years, then the law would be sanctioning
immorality and encouraging parties to have common law relationships and placing them on the same
footing with those who lived faithfully with their spouse. Marriage being a special relationship must be
respected as such and its requirements must be strictly observed. The presumption that a man and a
woman deporting themselves as husband and wife is based on the approximation of the requirements
of the law. The parties should not be afforded any excuse to not comply with every single requirement
and later use the same missing element as a pre-conceived escape ground to nullify their marriage.
There should be no exemption from securing a marriage license unless the circumstances clearly fall
within the ambit of the exception. It should be noted that a license is required in order to notify the
public that two persons are about to be united in matrimony and that anyone who is aware or has
knowledge of any impediment to the union of the two shall make it known to the local civil
registrar.
17
The Civil Code provides:
Art. 63: . . . This notice shall request all persons having knowledge of any impediment to the
marriage to advice the local civil registrar thereof. . . .
Art. 64: Upon being advised of any alleged impediment to the marriage, the local civil registrar
shall forthwith make an investigation, examining persons under oath. . . .
This is reiterated in the Family Code thus:
Art. 17 provides in part: . . . This notice shall request all persons having knowledge of any
impediment to the marriage to advise the local civil registrar thereof. . . .
Art. 18 reads in part: . . . In case of any impediment known to the local civil registrar or brought
to his attention, he shall note down the particulars thereof and his findings thereon in the
application for a marriage license. . . .
This is the same reason why our civil laws, past or present, absolutely prohibited the concurrence of
multiple marriages by the same person during the same period. Thus, any marriage subsequently
contracted during the lifetime of the first spouse shall be illegal and void,
18
subject only to the exception
in cases of absence or where the prior marriage was dissolved or annulled. The Revised Penal Code
complements the civil law in that the contracting of two or more marriages and the having of
extramarital affairs are considered felonies, i.e., bigamy and concubinage and adultery.
19
The law
sanctions monogamy.
In this case, at the time of Pepito and respondent's marriage, it cannot be said that they have lived with
each other as husband and wife for at least five years prior to their wedding day. From the time Pepito's
first marriage was dissolved to the time of his marriage with respondent, only about twenty months had
elapsed. Even assuming that Pepito and his first wife had separated in fact, and thereafter both Pepito
and respondent had started living with each other that has already lasted for five years, the fact remains
33

that their five-year period cohabitation was not the cohabitation contemplated by law. It should be in
the nature of a perfect union that is valid under the law but rendered imperfect only by the absence of
the marriage contract. Pepito had a subsisting marriage at the time when he started cohabiting with
respondent. It is immaterial that when they lived with each other, Pepito had already been separated in
fact from his lawful spouse. The subsistence of the marriage even where there was actual severance of
the filial companionship between the spouses cannot make any cohabitation by either spouse with any
third party as being one as "husband and wife".
Having determined that the second marriage involved in this case is not covered by the exception to the
requirement of a marriage license, it is void ab initio because of the absence of such element.
The next issue to be resolved is: do petitioners have the personality to file a petition to declare their
father's marriage void after his death?
Contrary to respondent judge's ruling, Article 47 of the Family Code
20
cannot be applied even by
analogy to petitions for declaration of nullity of marriage. The second ground for annulment of marriage
relied upon by the trial court, which allows "the sane spouse" to file an annulment suit "at anytime
before the death of either party" is inapplicable. Article 47 pertains to the grounds, periods and persons
who can file an annulment suit, not a suit for declaration of nullity of marriage. The Code is silent as to
who can file a petition to declare the nullity of a marriage. Voidable and void marriages are not identical.
A marriage that is annulable is valid until otherwise declared by the court; whereas a marriage that is
void ab initio is considered as having never to have taken place
21
and cannot be the source of rights. The
first can be generally ratified or confirmed by free cohabitation or prescription while the other can never
be ratified. A voidable marriage cannot be assailed collaterally except in a direct proceeding while a void
marriage can be attacked collaterally. Consequently, void marriages can be questioned even after the
death of either party but voidable marriages can be assailed only during the lifetime of the parties and
not after death of either, in which case the parties and their offspring will be left as if the marriage had
been perfectly valid.
22
That is why the action or defense for nullity is imprescriptible, unlike voidable
marriages where the action prescribes. Only the parties to a voidable marriage can assail it but any
proper interested party may attack a void marriage. Void marriages have no legal effects except those
declared by law concerning the properties of the alleged spouses, regarding co-ownership or ownership
through actual joint contribution,
23
and its effect on the children born to such void marriages as
provided in Article 50 in relation to Article 43 and 44 as well as Article 51, 53 and 54 of the Family Code.
On the contrary, the property regime governing voidable marriages is generally conjugal partnership and
the children conceived before its annulment are legitimate.
Contrary to the trial court's ruling, the death of petitioner's father extinguished the alleged marital bond
between him and respondent. The conclusion is erroneous and proceeds from a wrong premise that
there was a marriage bond that was dissolved between the two. It should be noted that their marriage
was void hence it is deemed as if it never existed at all and the death of either extinguished nothing.
Jurisprudence under the Civil Code states that no judicial decree is necessary in order to establish the
nullity of a marriage.
24
"A void marriage does not require a judicial decree to restore the parties to their
original rights or to make the marriage void but though no sentence of avoidance be absolutely
necessary, yet as well for the sake of good order of society as for the peace of mind of all concerned, it is
expedient that the nullity of the marriage should be ascertained and declared by the decree of a court of
competent jurisdiction."
25
"Under ordinary circumstances, the effect of a void marriage, so far as
concerns the conferring of legal rights upon the parties, is as though no marriage had ever taken place.
34

And therefore, being good for no legal purpose, its invalidity can be maintained in any proceeding in
which the fact of marriage may be material, either direct or collateral, in any civil court between any
parties at any time, whether before or after the death of either or both the husband and the wife, and
upon mere proof of the facts rendering such marriage void, it will be disregarded or treated as non-
existent by the courts." It is not like a voidable marriage which cannot be collaterally attacked except in
direct proceeding instituted during the lifetime of the parties so that on the death of either, the
marriage cannot be impeached, and is made good ab initio.
26
But Article 40 of the Family Code expressly
provides that there must be a judicial declaration of the nullity of a previous marriage, though void,
before a party can enter into a second marriage
27
and such absolute nullity can be based only on a final
judgment to that effect.
28
For the same reason, the law makes either the action or defense for the
declaration of absolute nullity of marriage imprescriptible.
29
Corollarily, if the death of either party
would extinguish the cause of action or the ground for defense, then the same cannot be considered
imprescriptible.
However, other than for purposes of remarriage, no judicial action is necessary to declare a marriage an
absolute nullity.1wphi1 For other purposes, such as but not limited to determination of heirship,
legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal
case for that matter, the court may pass upon the validity of marriage even in a suit not directly
instituted to question the same so long as it is essential to the determination of the case. This is without
prejudice to any issue that may arise in the case. When such need arises, a final judgment of declaration
of nullity is necessary even if the purpose is other than to remarry. The clause "on the basis of a final
judgment declaring such previous marriage void" in Article 40 of the Family Code connotes that such
final judgment need not be obtained only for purpose of remarriage.
WHEREFORE, the petition is GRANTED. The assailed Order of the Regional Trial Court, Toledo City, Cebu,
Branch 59, dismissing Civil Case No. T-639, is REVERSED and SET ASIDE. The said case is ordered
REINSTATED.1wphi1.nt
SO ORDERED.
Davide, Jr., C.J., Puno and Kapunan, JJ., concur.
Pardo, J., on official business abroad.

35

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 126010 December 8, 1999
LUCITA ESTRELLA HERNANDEZ, petitioner,
vs.
COURT OF APPEALS and MARIO C. HERNANDEZ, respondents.

MENDOZA, J.:
This is a petition for review on certiorari of the decision
1
of the Court of Appeals, dated January 30,
1996, affirming the decision of the Regional Trial Court, Branch 18, Tagaytay City, dated April 10, 1993,
which dismissed the petition for annulment of marriage filed by petitioner.
Petitioner Lucita Estrella Hernandez and private respondent Mario C. Hernandez were married at the
Silang Catholic Parish Church in Silang, Cavite on January 1, 1981 (Exh. A).
2
Three children were born to
them, namely, Maie, who was born on May 3, 1982 (Exh. B),
3
Lyra, born on May 22, 1985
(Exh. C),
4
and Marian, born on June 15, 1989 (Exh. D).
5

On July 10, 1992, petitioner filed before the Regional Trial Court, Branch 18, Tagaytay City, a petition
seeking the annulment of her marriage to private respondent on the ground of psychological incapacity
of the latter. She alleged that from the time of their marriage up to the time of the filing of the suit,
private respondent failed to perform his obligation to support the family and contribute to the
management of the household, devoting most of his time engaging in drinking sprees with his friends.
She further claimed that private respondent, after they were married, cohabited with another woman
with whom he had an illegitimate child, while having affairs with different women, and that, because of
his promiscuity, private respondent endangered her health by infecting her with a sexually transmissible
disease (STD). She averred that private respondent was irresponsible, immature and unprepared for the
duties of a married life. Petitioner prayed that for having abandoned the family, private respondent be
ordered to give support to their three children in the total amount of P9,000.00 every month; that she
be awarded the custody of their children; and that she be adjudged as the sole owner of a parcel of land
located at Don Gregorio Subdivision I in Bo. Bucal, Dasmarias, Cavite, purchased during the marriage,
as well as the jeep which private respondent took with him when he left the conjugal home on June 12,
1992.
6

On October 8, 1992, because of private respondent's failure to file his answer, the trial court issued an
order directing the assistant provincial prosecutor to conduct an investigation to determine if there was
collusion between the
36

parties.
7
Only petitioner appeared at the investigation on November 5, 1992. Nevertheless, the
prosecutor found no evidence of collusion and recommended that the case be set for trial.
8

Based on the evidence presented by the petitioner, the facts are as follows:
9

Petitioner and private respondent met in 1977 at the Philippine Christian University in Dasmarias,
Cavite. Petitioner, who is five years older than private respondent, was then in her first year of teaching
zoology and botany. Private respondent, a college freshman, was her student for two consecutive
semesters. They became sweethearts in February 1979 when she was no longer private respondent's
teacher. On January 1, 1981, they were married.
Private respondent continued his studies for two more years. His parents paid for his tuition fees, while
petitioner provided his allowances and other financial needs. The family income came from petitioner's
salary as a faculty member of the Philippine Christian University. Petitioner augmented her earnings by
selling "Tupperware" products, as well as engaging in the buy-and-sell of coffee, rice and polvoron.
From 1983 up to 1986, as private respondent could not find a stable job, it was agreed that he would
help petitioner in her businesses by delivering orders to customers. However, because her husband was
a spendthrift and had other women, petitioner's business suffered. Private respondent often had
smoking and drinking sprees with his friends and betted on fighting cocks. In 1982, after the birth of
their first child, petitioner discovered two love letters written by a certain Realita Villena to private
respondent. She knew Villena as a married student whose husband was working in Saudi Arabia. When
petitioner confronted private respondent, he admitted having an extra-marital affair with Villena.
Petitioner then pleaded with Villena to end her relationship with private respondent. For his part,
private respondent said he would end the affairs, but he did not keep his promise. Instead, he left the
conjugal home and abandoned petitioner and their child. When private respondent came back,
however, petitioner accepted him, despite private respondent's infidelity in the hope of saving their
marriage.
Upon the recommendation of a family friend, private respondent was able to get a job at Reynolds
Philippines, Inc. in San Agustin, Dasmarias, Cavite in 1986. However, private respondent was employed
only until March 31, 1991, because he availed himself of the early retirement plan offered by the
company. He received P53,000.00 in retirement pay, but instead of spending the amount for the needs
of the family, private respondent spent the money on himself and consumed the entire amount within
four months of his retirement.
While private respondent worked at Reynolds Philippines, Inc., his smoking, drinking, gambling and
womanizing became worse. Petitioner discovered that private respondent carried on relationships with
different women. He had relations with a certain Edna who worked at Yazaki; Angie, who was an
operator of a billiard hall; Tess, a "Japayuki"; Myrna Macatangay, a secretary at the Road Master Driver's
School in Bayan, Dasmarias, Cavite, with whom he cohabited for quite a while; and, Ruth Oliva, by
whom he had a daughter named Margie P. Oliva, born on September 15, 1989 (Exh. E).
10
When
petitioner confronted private respondent about his relationship with Tess, he beat her up, as a result of
which she was confined at the De la Salle University Medical Center in Dasmarias, Cavite on July 4-5,
1990 because of cerebral concussion (Exh. F).
11

37

According to petitioner, private respondent engaged in extreme promiscuous conduct during the latter
part of 1986. As a result, private respondent contracted gonorrhea and infected petitioner. They both
received treatment at the Zapote Medical Specialists Center in Zapote, Bacoor, Cavite from October 22,
1986 until March 13, 1987 (Exhs. G & H).
12

Petitioner averred that on one occasion of a heated argument, private respondent hit their eldest child
who was then barely a year old. Private respondent is not close to any of their children as he was never
affectionate and hardly spent time with them.
On July 17, 1979, petitioner entered into a contract to sell (Exh. J)
13
with F & C Realty Corporation
whereby she agreed to buy from the latter a parcel of land at the Don Gregorio Heights Subdivision I in
Bo. Bucal, Dasmarias, Cavite and placed a partial payment of P31,330.00. On May 26, 1987, after full
payment of the amount of P51,067.10, inclusive of interests from monthly installments, a deed of
absolute sale(Exh. K)
14
was executed in her favor and TCT No. T-221529 (Exh. M)
15
was duly issued.
According to petitioner, on August 1, 1992, she sent a handwritten
letter
16
to private respondent expressing her frustration over the fact that her efforts to save their
marriage proved futile. In her letter, petitioner also stated that she was allowing him to sell their owner-
type jeepney
17
and to divide the proceeds of the sale between the two of them. Petitioner also told
private respondent of her intention to fill a petition for the annulment of their marriage.
It does not appear that private respondent ever replied to petitioner's letter. By this time, he had
already abandoned petitioner and their children. In October 1992, petitioner learned that private
respondent left for the Middle East. Since then, private respondent's whereabouts had been unknown.
Ester Alfaro, petitioner's childhood friend and co-teacher at the Philippine Christian University, testified
during the hearing on the petition for annulment. She said that sometime in June 1979, petitioner
introduced private respondent to her (Alfaro) as the former's sweetheart. Alfaro said she was not
impressed with private respondent who was her student in accounting. She observed private
respondent to be fun-loving, spending most of his time with campus friends. In November 1980, when
petitioner asked Alfaro to be one of the secondary sponsors at her forthcoming wedding, Alfaro wanted
to dissuade petitioner from going through with the wedding because she thought private respondent
was not ready for married life as he was then unemployed. True enough, although the couple appeared
happy during the early part of their marriage, it was not long thereafter that private respondent started
drinking with his friends and going home late at night. Alfaro corroborated petitioner's claim that private
respondent was a habitual drunkard who carried on relationships with different women and continued
hanging out with his friends. She also confirmed that petitioner was once hospitalized because she was
beaten up by private respondent. After the first year of petitioner's marriage, Alfaro tried to talk to
private respondent, but the latter accused her of meddling with their marital life. Alfaro said that private
respondent was not close to his children and that he had abandoned petitioner.
18

On April 10, 1993, the trial court rendered a decision
19
dismissing the petition for annulment of
marriage filed by petitioner. The pertinent portion of the decision reads:
20

The Court can underscore the fact that the circumstances mentioned by the petitioner
in support of her claim that respondent was "psychologically incapacitated" to marry
her are among the grounds cited by the law as valid reasons for the grant of legal
38

separation (Article 55 of the Family Code) not as grounds for a declaration of nullity
of marriages or annulment thereof. Thus, Article 55 of the same code reads as follows:
Art. 55. A petition for legal separation may be filed on any of the
following grounds:
(1) Repeated physical violence or grossly abusive conduct directed
against the petitioner, a common child, or a child of the petitioner;
xxx xxx xxx
(5) Drug addiction or habitual alcoholism of the respondent;
xxx xxx xxx
(8) Sexual infidelity or perversion;
xxx xxx xxx
(10) Abandonment of petitioner by respondent without justifiable cause
for more than one year.
xxx xxx xxx
If indeed Article 36 of the Family Code of the Philippines, which mentions psychological
incapacity as a ground for the declaration of the nullity of a marriage, has intended to
include the above-stated circumstances as constitutive of such incapacity, then the
same would not have been enumerated as grounds for legal separation.
In the same manner, this Court is not disposed to grant relief in favor of the petitioner
under Article 46, paragraph (3) of the Family Code of the Philippines, as there is no
dispute that the "gonorrhea" transmitted to the petitioner by respondent occurred
sometime in 1986, or five (5) years after petitioner's marriage with respondent was
celebrated in 1981. The provisions of Article 46, paragraph (3) of the same law should
be taken in conjunction with Article 45, paragraph (3) of the same code, and a careful
reading of the two (2) provisions of the law would require the existence of this ground
(fraud) at the time of the celebration of the marriage. Hence, the annulment of
petitioner's marriage with the respondent on this ground, as alleged and proved in the
instant case, cannot be legally accepted by the Court.
Petitioner appealed to the Court of Appeals which, on January 30, 1996, rendered its decision affirming
the decision of the trial court. Citing the ruling in Santos v. Court of Appeals,
21
the Court of Appeals
held:
22

It is clear in the above law and jurisprudence that the psychological incapacity of a
spouse, as a ground for declaration of nullify of marriage, must exist at the time of the
39

celebration of marriage. More so, chronic sexual infidelity, abandonment, gambling and
use of prohibited drugs are not grounds per se, of psychological incapacity of a spouse.
We agree with the Solicitor General that petitioner-appellant failed to prove that her
respondent-husband was psychologically incapacitated at the time of the celebration of
the marriage. Certainly, petitioner-appellant's declaration that at the time of their
marriage her respondent-husband's character was on the "borderline between a
responsible person and the happy-go-lucky," could not constitute the psychological
incapacity in contemplation of Article 36 of the Family Code. In fact, petitioner-appellant
herself ascribed said attitude to her respondent-husband's youth and very good looks,
who was admittedly several years younger than petitioner-appellant who, herself,
happened to be the college professor of her respondent-husband. Petitioner-appellant
even described her respondent-husband not as a problem student but a normal one (p.
24, tsn, Dec. 8, 1992).
The acts and attitudes complained of by petitioner-appellant happened after the
marriage and there is no proof that the same have already existed at the time of the
celebration of the marriage to constitute the psychological incapacity under Article 36 of
the Family Code.
Hence, this petition. Petitioner contends that the respondent Court of Appeals erred
I. IN FINDING THAT THE PSYCHOLOGICAL INCAPACITY OF THE PRIVATE
RESPONDENT TO COMPLY WITH HIS ESSENTIAL MARITAL OBLIGATIONS
DID NOT EXIST FROM THE TIME OF THE CELEBRATION OF THE
MARRIAGE.
II. IN RULING THAT PRIVATE RESPONDENT WAS NOT PSYCHOLOGICALLY
INCAPACITATED TO COMPLY WITH HIS ESSENTIAL MARITAL
OBLIGATIONS.
III. IN AFFIRMING THE DECISION OF THE TRIAL COURT DENYING THE
AWARD OF PERMANENT CUSTODY OF THE CHILDREN TO PETITIONER.
IV. IN AFFIRMING THE DECISION OF THE TRIAL COURT DENYING THE
PRAYER FOR ISSUANCE OF AN ORDER REQUIRING PRIVATE
RESPONDENT TO GIVE SUPPORT TO THE THREE CHILDREN IN THE
AMOUNT OF P3,000,00 PER CHILD.
V. IN NOT DECLARING THE REAL PROPERTY ACQUIRED BY PETITIONER
AS HER EXCLUSIVE PROPERTY.
The issue in this case is whether or not the marriage of petitioner and private respondent should be
annulled on the ground of private respondent's psychological incapacity.
Petitioner alleges that the Court of Appeals erred in holding that petitioner failed to show that private
respondent's psychological incapacity existed at the time of the celebration of the marriage. She argues
40

that the fact that the acts of incapacity of private respondent became manifest only after the
celebration of their marriage should not be a bar to the annulment of their marriage.
Art. 36 of the Family Code states:
A marriage contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with the essential marital obligations of
marriage, shall likewise be void even if such incapacity becomes manifest only after its
solemnization.
23

In Santos v. Court of Appeals,
24
we held:
"Psychological incapacity" should refer to no less than a mental (not physical) incapacity
that causes a party to be truly incognitive of the basic marital covenants that
concomitantly must be assumed and discharged by the parties to the marriage which, as
so expressed by Article 68 of the Family Code, include their mutual obligations to live
together, observe love, respect and fidelity and render help and support. There is hardly
any doubt that the intendment of the law has been to confine the meaning of
"psychological incapacity" to the most serious cases of personality, disorders clearly
demonstrative of an utter insensitivity or inability to give meaning and significance to
the marriage. This psychological condition must exist at the time the marriage is
celebrated. The law does not evidently envision, upon the other hand, an inability of the
spouse to have sexual relations with the other. This conclusion is implicit under Article
54 of the Family Code which considers children conceived prior to the judicial
declaration of nullity of the void marriage to be "legitimate."
The other forms of psychoses, if existing at the inception of marriage, like the state of a
party being of unsound mind or concealment of drug addiction, habitual alcoholism,
homosexuality or lesbianism, merely renders the marriage contract voidable pursuant to
Article 46, Family Code. If drug addiction, habitual alcoholism, lesbianism or
homosexuality should occur only during the marriage, they become mere grounds for
legal separation under Article 55 of the Family Code. These provisions of the Code,
however, do not necessarily preclude the possibility of these various circumstances
being themselves, depending on the degree and severity of the disorder, indicia of
psychological incapacity.
Until further statutory and jurisprudential parameters are established, every
circumstance that may have some bearing on the degree, extent, and other conditions
of that incapacity must, in every case, be carefully examined and evaluated so that no
precipitate and indiscriminate nullity is peremptorily decreed. The well-considered
opinions of psychiatrists, psychologists, and persons with expertise in psychological
disciplines might be helpful or even desirable.
In the instant case, other than her self-serving declarations, petitioner failed to establish the fact that at
the time they were married, private respondent was suffering from a psychological defect which in fact
deprived him of the ability to assume the essential duties of marriage and its concomitant
responsibilities. As the Court of Appeals pointed out, no evidence was presented to show that private
41

respondent was not cognizant of the basic marital obligations. It was not sufficiently proved that private
respondent was really incapable of fulfilling his duties due to some incapacity of a psychological nature,
and not merely physical. Petitioner says that at the outset of their marriage, private respondent showed
lack of drive to work for his family. Private respondent's parents and petitioner supported him through
college. After his schooling, although he eventually found a job, he availed himself of the early
retirement plan offered by his employer and spent the entire amount he received on himself. For a
greater part of their marital life, private respondent was out of job and did not have the initiative to look
for another. He indulged in vices and engaged in philandering, and later abandoned his family. Petitioner
concludes that private respondent's condition is incurable, causing the disintegration of their union and
defeating the very objectives of marriage.
However, private respondent's alleged habitual alcoholism, sexual infidelity or perversion, and
abandonment do not by themselves constitute grounds for finding that he is suffering from
psychological incapacity within the contemplation of the Family Code. It must be shown that these acts
are manifestations of a disordered personality which make private respondent completely unable to
discharge the essential obligations of the marital state, and not merely due to private respondent's
youth and self-conscious feeling of being handsome, as the appellate court held. As pointed out
in Republic of the Philippines v. Court of Appeals:
25

The root cause of the psychological incapacity must be: (a) medically or clinically
identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly
explained in the decision. Article 36 of the Family Code requires that the incapacity must
be psychological not physical, although its manifestations and/or symptoms may be
physical. The evidence must convince the court that the parties, or one of them, was
mentally or physically ill to such an extent that the obligations he was assuming, or
knowing them, could not have given valid assumption thereof. Although no example of
such incapacity need given here so as not to limit the application of the provision under
the principle of ejusdem generis (citing Salaita v. Magtolis, supra) nevertheless such root
cause must be identified as a psychological illness and its incapacitating nature fully
explained. Expert evidence may be given by qualified psychiatrists and clinical
psychologists.
Moreover, expert testimony should have been presented to establish the precise cause of private
respondent's psychological incapacity, if any, in order to show that it existed at the inception of the
marriage. The burden of proof to show the nullity of the marriage rests upon rests petitioner. The Court
is mindful of the policy of the 1987 Constitution to protect and strengthen the family as the basic
autonomous social institution and marriage as the foundation of the
family.
26
Thus, any doubt should be resolved in favor of the validity of the marriage.
27

We, therefore, find no reason to reverse the ruling of respondent Court of Appeals whose conclusions,
affirming the trial court's finding with regard to the non-existence of private respondent's psychological
incapacity at the time of the marriage, are entitled to great weight and even finality.
28
Only where it is
shown that such findings are whimsical, capricious, and arbitrary can these be overturned.
The conclusion we have reached makes it unnecessary for us to pass upon petitioner's contentions on
the issue of permanent custody of children, the amount for their respective support, and the declaration
of exclusive ownership of petitioner over the real property. These matters may more appropriately be
42

litigated in a separate proceeding for legal separation, dissolution of property regime, and/or custody of
children which petitioner may bring.
WHEREFORE, the decision of the Court of Appeal is AFFIRMED.
43

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 106429 June 13, 1994
JOSELITA SALITA, petitioner,
vs.
HON. DELILAH MAGTOLIS, in her capacity as Judge of the RTC, Quezon City, Br. 107, and ERWIN
ESPINOSA, respondents.
Alfredo F. Tadiar for petitioner.
Yolanda, Quisumbing-Javellana & Associates for private respondent.

BELLOSILLO, J.:
Erwin Espinosa, 32, and Joselita Salita, 22, were married at the Roman Catholic Church in Ermita, Manila,
on 25 January 1986. A year later, their union turned sour. They separated in fact in 1988. Subsequently,
Erwin sued for annulment on the ground of Joselitas psychological incapacity.
The issue before us however is not the scope nor even the interpretation of Art. 36 of the Family
Code.
1
Rather, the issue is the sufficiency of the allegations in the petition for annulment of marriage
and the subsequent bill of particulars filed in amplification of the petition.
The petition for annulment was filed before the Regional Trial Court of Quezon City on 7 January 1992.
Therein it is alleged that "[s]ometime in 1987, petitioner came to realize that respondent was
psychologically incapacitated to comply with the essential marital obligations of their marriage, which
incapacity existed at the time of the marriage although the same became manifest only
thereafter."
2
Dissatisfied with the allegation in the petition, Joselita moved for a bill of particulars which
the trial court granted.
3
Subsequently, in his Bill of Particulars, Edwin specified that
. . . at the time of their marriage, respondent (Joselita Salita) was psychologically
incapacitated to comply with the essential marital obligations of their marriage in that
she was unable to understand and accept the demands made by his profession that
of a newly qualified Doctor of Medicine upon petitioners time and efforts so that she
frequently complained of his lack of attention to her even to her mother, whose
intervention caused petitioner to lose his job.
Still Joselita was not contented with the Bill of Particulars. She argued that the "assertion (in the Bill of
Particulars) is a statement of legal conclusion made by petitioners counsel and not an averment
44

of ultimate facts, as required by the Rules of Court, from which such a conclusion may properly be
inferred . . . ."
4
But finding the questioned Bill of Particulars adequate, the trial court issued an order
upholding its sufficiency and directing Joselita to file her responsive pleading.
Joselita was not convinced. She filed a petition for certiorari with us. However, we referred her petition
to the Court of Appeals for resolution.
On 21 July 1992, the Court of Appeals denied due course to her petition thus
In the case under consideration, Espinosa has amplified Salitas alleged psychological
incapacity in his bill of particulars . . .
In our view, the aforesaid specification more than satisfies the Rules requirement that a
complaint must allege the ultimate facts constituting a plaintiffs cause of action. To
require more details thereof, to insist on a specification of Salitas particular conduct or
behavior with the corresponding circumstances of time, place and person indicating
her alleged psychological incapacity would be to ask for information on evidentiary
matters. To obtain evidentiary details, Salita may avail herself of the different modes of
discovery provided by the Rules of Court
(Rules 24 to 28).
Whether Espinosas averments in his bill of particulars constitute psychological
incapacity in the contemplation of the Family Code is a question that may be resolved in
a motion to dismiss or after trial on the merits of the case, not in a motion for bill of
particulars. And certainly, that matter cannot be resolved in the present petition.
5

Hence, the instant petition for review on certiorari filed by Joselita Salita questioning the Resolution of
the Court of Appeals denying due course to her petition.
Petitioner insists that the allegations in the Bill of Particulars constitute a legal conclusion, not an
averment of facts, and fail to point out the specific essential marital obligations she allegedly was not
able to perform, and thus render the Bill of Particulars insufficient if not irrelevant to her husbands
cause of action. She rationalizes that her insistence on the specification of her particular conduct or
behavior with the corresponding circumstances of time, place and person does not call for information
on evidentiary matters because without these details she cannot adequately and intelligently prepare
her answer to the petition.
Private respondent on the other hand believes that his allegations in the Bill of Particulars constitute the
ultimate facts which the Rules of Court requires at this point. He defines ultimate facts as
. . . important and substantial facts which either directly form the basis of the primary
right and duty, or which directly make upon the wrongful acts or omissions of the
defendant. The term does not refer to the details of probative matter or particulars of
evidence by which these material elements are to be established. It refers to principal,
determinate facts upon the existence of which the entire cause of action rests.
6

45

Ultimate facts are conclusions drawn from intermediate and evidentiary facts, or
allegations of mixed law and fact; they are conclusions from reflection and natural
reasoning on evidentiary fact. The ultimate facts which are to be pleaded are the
issuable, constitutive, or traversible facts essential to the statement of the cause of
action; the facts which the evidence on the trial will prove, and not the evidence which
will be required to prove the existence of those facts . . .
7

Private respondent further argues that "[c]onclusions of law and evidentiary matters need not be stated
in the complaint. The rules of pleading limit the statement of the cause of action only to such operative
facts as would give rise to the right of action of the plaintiff to obtain relief against the wrongdoer. The
details of probative matter or particulars of evidence, statements of law, inferences and arguments
need not be stated."
8

In a nutshell, the ultimate question is whether the Bill of Particulars submitted by herein respondent is
of sufficient definiteness or particularity as to enable herein petitioner to properly prepare her
responsive pleading or for trial.
A complaint only needs to state the "ultimate facts constituting the plaintiffs cause or causes of
action."
9
Ultimate facts has been defined as "those facts which the expected evidence will
support."
10
As stated by private respondent, "[t]he term does not refer to the details of probative
matter or particulars of evidence by which these material elements are to be established." It refers to
"the facts which the evidence on the trial will prove, and not the evidence which will be required to
prove the existence of those facts." And a motion for bill of particulars will not be granted if the
complaint, while not very definite, nonetheless already states a sufficient cause of action.
11
A motion
for bill of particulars may not call for matters which should form part of the proof of the complaint upon
trial. Such information may be obtained by other means.
12

We sustain the view of respondent Court of Appeals that the Bill of Particulars filed by private
respondent is sufficient to state a cause of action, and to require more details from private respondent
would be to ask for information on evidentiary matters. Indeed, petitioner has already been adequately
apprised of private respondents cause of action against her thus
. . . . (she) was psychologically incapacitated to comply with the essential marital
obligations of their marriage in that she was unable to understand and accept the
demands made by his profession that of a newly qualified Doctor of Medicine
upon petitioners time and efforts so that she frequently complained of his lack of
attention to her even to her mother, whose intervention caused petitioner to lose his
job.
On the basis of the aforequoted allegations, it is evident that petitioner can already prepare her
responsive pleading or for trial. Private respondent has already alleged that "she (petitioner) was unable
to understand and accept the demands made by his profession . . . upon his time and efforts . . . "
Certainly, she can respond to this. To demand for more details would indeed be asking for information
on evidentiary facts facts necessary to prove essential or ultimate facts.
13
For sure, the additional
facts called for by petitioner regarding her particular acts or omissions would be evidentiary, and to
obtain evidentiary matters is not the function of a motion for bill of particulars.
14

46

We distinguish the instant case from Tantuico, Jr. v. Republic
15
where we said
Furthermore, the particulars prayed for such as names of persons, names of
corporations, dates, amounts involved, a specification of property for identification
purposes, the particular transactions involving withdrawals and disbursements, and a
statement of other material facts as would support the conclusions and inferences in
the complaint, are not evidentiary in nature. On the contrary, those particulars are
material facts that should be clearly and definitely averred in the complaint in order that
the defendant may, in fairness, be informed of the claims made against him to the end
that he may be prepared to meet the issues at the trial.
The aforementioned pronouncement cannot apply to the instant case. That ruling involves alleged
"misappropriation and theft of public funds, plunder of the nations wealth, extortion, blackmail,
bribery, embezzlement, and other acts of corruption, betrayal of public trust and brazen abuse of
power." The respondents therein pray for reconveyance, reversion, accounting, restitution and
damages. There, the alleged illicit acts should be fully documented. The instant case, on the other hand,
concerns marital relationship. It would be unreasonable, if not unfeeling, to document each and every
circumstance of marital disagreement. True, the complaining spouse will have to prove his case, but that
will not come until trial begins.
Consequently, we have no other recourse but to order the immediate resumption of the annulment
proceeding which have already been delayed for more than two years now, even before it could reach
its trial stage. Whether petitioner is psychologically incapacitated should be immediately determined.
There is no point in unreasonably delaying the resolution of the petition and prolonging the agony of the
wedded couple who after coming out from a storm still have the right to a renewed blissful life either
alone or in the company of each other.
A word on Art. 36 of the Family Code.
16
We do not see the need to define or limit the scope of the
provision. Not in this case, at least. For, we are not called upon to do so, the actual controversy being
the sufficiency of the bill of particulars. To interpret the provision at this juncture would be to give
an obiter dictum which is ill-timed. Besides, it appears that petitioner in her memorandum has
demonstrated a good grasp of what Art. 36 actually covers. Suffice it to say that Mme. Justice Sempio-
Diy, formerly of the Court of Appeals and a member of the Civil Code Revision Committee that drafted
the Family code, explains
The Committee did not give any examples of psychological incapacity for fear that the
giving of examples would limit the applicability of the provision under the principle
of ejusdem generis. Rather, the Committee would like the judge to interpret the
provision on a case-to-case basis, guided by experience, the findings of experts and
researchers in psychological disciplines, and by decisions of church tribunals which,
although not binding on the civil courts, may be given persuasive effect since the
provision was taken from Canon Law.
17

WHEREFORE, there being no reversible error, the instant petition is DENIED and the questioned
Resolution of respondent Court of Appeals dated 21 July 1992 is AFFIRMED.
SO ORDERED.
47

THIRD DIVISION
[G.R. No. 136490. October 19, 2000]
BRENDA B. MARCOS, petitioner, vs. WILSON G. MARCOS, respondent.
D E C I S I O N
PANGANIBAN, J.:
Psychological incapacity, as a ground for declaring the nullity of a marriage, may be established by
the totality of evidence presented. There is no requirement, however, that the respondent should be
examined by a physician or a psychologist as a conditio sine qua non for such declaration.
The Case

Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the July
24, 1998 Decision
[1]
of the Court of Appeals (CA) in CA-GR CV No. 55588, which disposed as follows:
"WHEREFORE, the contested decision is set aside and the marriage between the parties is hereby
declared valid."
[2]

Also challenged by petitioner is the December 3, 1998 CA Resolution denying her Motion for
Reconsideration.
Earlier, the Regional Trial Court (RTC) had ruled thus:
"WHEREFORE, the marriage between petitioner Brenda B. Marcos and respondent Wilson G. Marcos,
solemnized on September 6, 1982 in Pasig City is declared null and void ab initio pursuant to Art. 36 of
the Family Code. The conjugal properties, if any, is dissolved [sic] in accordance with Articles 126 and
129 of the same Code in relation to Articles 50, 51 and 52 relative to the delivery of the legitime of [the]
parties' children. In the best interest and welfare of the minor children, their custody is granted to
petitioner subject to the visitation rights of respondent.
"Upon finality of this Decision, furnish copy each to the Office of the Civil Registrar of Pasig City where
the marriage was solemnized, the National Census and Statistics Office, Manila and the Register of
Deeds of Mandaluyong City for their appropriate action consistent with this Decision.
"SO ORDERED."
The Facts

48

The facts as found by the Court of Appeals are as follows:
"It was established during the trial that the parties were married twice: (1) on September 6, 1982 which
was solemnized by Judge Eriberto H. Espiritu at the Municipal Court of Pasig (Exh. A); and (2) on May 8,
1983 which was solemnized by Rev. Eduardo L. Eleazar, Command Chaplain, at the Presidential Security
Command Chapel in Malacaang Park, Manila (Exh. A-1). Out of their marriage, five (5) children were
born (Exhs. B, C, D, E and F).
"Appellant Wilson G. Marcos joined the Armed Forces of the Philippines in 1973. Later on, he was
transferred to the Presidential Security Command in Malacaang during the Marcos Regime. Appellee
Brenda B. Marcos, on the other hand, joined the Women's Auxilliary Corps under the Philippine Air
Force in 1978. After the Edsa Revolution, both of them sought a discharge from the military service.
"They first met sometime in 1980 when both of them were assigned at the Malacaang Palace, she as an
escort of Imee Marcos and he as a Presidential Guard of President Ferdinand Marcos. Through
telephone conversations, they became acquainted and eventually became sweethearts.
"After their marriage on September 6, 1982, they resided at No. 1702 Daisy Street, Hulo Bliss,
Mandaluyong, a housing unit which she acquired from the Bliss Development Corporation when she was
still single.
"After the downfall of President Marcos, he left the military service in 1987 and then engaged in
different business ventures that did not however prosper. As a wife, she always urged him to look for
work so that their children would see him, instead of her, as the head of the family and a good
provider. Due to his failure to engage in any gainful employment, they would often quarrel and as a
consequence, he would hit and beat her. He would even force her to have sex with him despite her
weariness. He would also inflict physical harm on their children for a slight mistake and was so severe in
the way he chastised them. Thus, for several times during their cohabitation, he would leave their
house. In 1992, they were already living separately.
"All the while, she was engrossed in the business of selling "magic uling" and chickens. While she was
still in the military, she would first make deliveries early in the morning before going to
Malacaang.When she was discharged from the military service, she concentrated on her
business. Then, she became a supplier in the Armed Forces of the Philippines until she was able to put
up a trading and construction company, NS Ness Trading and Construction Development Corporation.
"The 'straw that broke the camel's back' took place on October 16, 1994, when they had a bitter
quarrel. As they were already living separately, she did not want him to stay in their house anymore. On
that day, when she saw him in their house, she was so angry that she lambasted him. He then turned
violent, inflicting physical harm on her and even on her mother who came to her aid. The following day,
October 17, 1994, she and their children left the house and sought refuge in her sister's house.
"On October 19, 1994, she submitted herself [to] medical examination at the Mandaluyong Medical
Center where her injuries were diagnosed as contusions (Exh. G, Records, 153).
49

"Sometime in August 1995, she together with her two sisters and driver, went to him at the Bliss unit in
Mandaluyong to look for their missing child, Niko. Upon seeing them, he got mad. After knowing the
reason for their unexpected presence, he ran after them with a samurai and even [beat] her driver.
"At the time of the filing of this case, she and their children were renting a house in Camella, Paraaque,
while the appellant was residing at the Bliss unit in Mandaluyong.
"In the case study conducted by Social Worker Sonia C. Millan, the children described their father as
cruel and physically abusive to them (Exh. UU, Records, pp. 85-100).
"The appellee submitted herself to psychologist Natividad A. Dayan, Ph.D., for psychological evaluation
(Exh. YY, Records, pp. 207-216), while the appellant on the other hand, did not.
"The court a quo found the appellant to be psychologically incapacitated to perform his marital
obligations mainly because of his failure to find work to support his family and his violent
attitude towardsappellee and their children, x x x."
[3]

Ruling of the Court of Appeals

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

Hence, this Petition.
[5]

50

Issues

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

The Court's Ruling

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

Petitioner contends that the testimonies and the results of various tests that were submitted to
determine respondent's psychological incapacity to perform the obligations of marriage should not have
been brushed aside by the Court of Appeals, simply because respondent had not taken those tests
himself. Petitioner adds that the CA should have realized that under the circumstances, she had no
choice but to rely on other sources of information in order to determine the psychological capacity of
respondent, who had refused to submit himself to such tests.
In Republic v. CA and Molina,
[8]
the guidelines governing the application and the interpretation
of psychological incapacity referred to in Article 36 of the Family Code
[9]
were laid down by this Court as
follows:
"1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt
should be resolved in favor of the existence and continuation of the marriage and against
its dissolution and nullity. This is rooted in the fact that both our Constitution and our laws
cherish the validity of marriage and unity of the family. Thus, our Constitution devotes an
entire Article on the Family, recognizing it 'as the foundation of the nation.' It decrees
marriage as legally 'inviolable,' thereby protecting it from dissolution at the whim of the
parties. Both the family and marriage are to be 'protected' by the state.
x x x x x x x x x
2) The root cause of the psychological incapacity must be: (a) medically or clinically identified,
(b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in
the decision.Article 36 of the Family Code requires that the incapacity must be
psychological - not physical, although its manifestations and/or symptoms may be
physical. The evidence must convince the court that the parties, or one of them, was
51

mentally or psychically ill to such an extent that the person could not have known the
obligations he was assuming, or knowing them, could not have given valid assumption
thereof. Although no example of such incapacity need be given here so as not to limit the
application of the provision under the principle of ejusdem generis, nevertheless such root
cause must be identified as a psychological illness and its incapacitating nature fully
explained. Expert evidence may be given by qualified psychiatrists and clinical
psychologists.
3) The incapacity must be proven to be existing at 'the time of the celebration' of the
marriage. The evidence must show that the illness was existing when the parties exchanged
their 'I do's.' The manifestation of the illness need not be perceivable at such time, but the
illness itself must have attached at such moment, or prior thereto.
4) Such incapacity must also be shown to be medically or clinically permanent or
incurable. Such incurability may be absolute or even relative only in regard to the other
spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such
incapacity must be relevant to the assumption of marriage obligations, not necessarily to
those not related to marriage, like the exercise of a profession or employment in a
job. Hence, a pediatrician may be effective in diagnosing illnesses of children and
prescribing medicine to cure them but not be psychologically capacitated to procreate,
bear and raise his/her own children as an essential obligation of marriage.
5) Such illness must be grave enough to bring about the disability of the party to assume the
essential obligations of marriage. Thus, 'mild characteriological peculiarities, mood
changes, occasional emotional outbursts cannot be accepted as root causes. The illness
must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much
less ill will. In other words, there is a natal or supervening disabling factor in the person, an
adverse integral element in the personality structure that effectively incapacitates the
person from really accepting and thereby complying with the obligations essential to
marriage.
6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the
Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the
same Code in regard to parents and their children. Such non-complied marital obligation(s)
must also be stated in the petition, proven by evidence and included in the text of the
decision.
7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church
in the Philippines, while not controlling or decisive, should be given great respect by our
courts.
x x x x x x x x x
(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to
appear as counsel for the state. No decision shall be handed down unless the Solicitor
General issues a certification, which will be quoted in the decision, briefly stating therein
his reasons for his agreement or opposition, as the case may be, to the petition. The
Solicitor General, along with the prosecuting attorney, shall submit to the court such
certification within fifteen (15) days from the date the case is deemed submitted for
resolution of the court. The Solicitor General shall discharge the equivalent function of
the defensor vinculi contemplated under Canon 1095."
[10]

52

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

The main question, then, is whether the totality of the evidence presented in the present case --
including the testimonies of petitioner, the common children, petitioner's sister and the social worker --
was enough to sustain a finding that respondent was psychologically incapacitated.
We rule in the negative. Although this Court is sufficiently convinced that respondent failed to
provide material support to the family and may have resorted to physical abuse and abandonment, the
totality of his acts does not lead to a conclusion of psychological incapacity on his part. There is
absolutely no showing that his "defects" were already present at the inception of the marriage or that
they are incurable.
Verily, the behavior of respondent can be attributed to the fact that he had lost his job and was not
gainfully employed for a period of more than six years. It was during this period that he became
intermittently drunk, failed to give material and moral support, and even left the family home.
Thus, his alleged psychological illness was traced only to said period and not to the inception of the
marriage. Equally important, there is no evidence showing that his condition is incurable, especially now
that he is gainfully employed as a taxi driver.
Article 36 of the Family Code, we stress, is not to be confused with a divorce law that cuts the
marital bond at the time the causes therefor manifest themselves. It refers to a serious psychological
illness afflicting a party even before the celebration of the marriage. It is a malady so grave and so
permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond
one is about to assume. These marital obligations are those provided under Articles 68 to 71, 220, 221
and 225 of the Family Code.
Neither is Article 36 to be equated with legal separation, in which the grounds need not be rooted
in psychological incapacity but on physical violence, moral pressure, moral corruption, civil interdiction,
drug addiction, habitual alcoholism, sexual infidelity, abandonment and the like.
[12]
At best, the evidence
presented by petitioner refers only to grounds for legal separation, not for declaring a marriage void.
Because Article 36 has been abused as a convenient divorce law, this Court laid down the
procedural requirements for its invocation in Molina. Petitioner, however, has not faithfully observed
them.
In sum, this Court cannot declare the dissolution of the marriage for failure of petitioner to show
that the alleged psychological incapacity is characterized by gravity, juridical antecedence and
incurability; and for her failure to observe the guidelines outlined in Molina.
53

WHEREFORE, the Petition is DENIED and assailed Decision AFFIRMED, except that portion requiring
personal medical examination as a conditio sine qua non to a finding of psychological incapacity. No
costs.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

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

ROMERO, J.:
The instant petition seeks the reversal of respondent court's ruling finding no grave abuse of discretion
in the lower court's order denying petitioner's motion to dismiss the petition for declaration of nullity of
marriage and separation of property.
On May 29, 1991, private respondent Delia Soledad A. Domingo filed a petition before the Regional Trial
Court of Pasig entitled "Declaration of Nullity of Marriage and Separation of Property" against petitioner
Roberto Domingo. The petition which was docketed as Special Proceedings No. 1989-J alleged among
others that: they were married on November 29, 1976 at the YMCA Youth Center Bldg., as evidenced by
a Marriage Contract Registry No. 1277K-76 with Marriage License No. 4999036 issued at Carmona,
Cavite; unknown to her, he had a previous marriage with one Emerlina dela Paz on April 25, 1969 which
marriage is valid and still existing; she came to know of the prior marriage only sometime in 1983 when
Emerlina dela Paz sued them for bigamy; from January 23 1979 up to the present, she has been working
in Saudi Arabia and she used to come to the Philippines only when she would avail of the one-month
annual vacation leave granted by her foreign employer since 1983 up to the present, he has been
unemployed and completely dependent upon her for support and subsistence; out of her personal
earnings, she purchased real and personal properties with a total amount of approximately P350,000.00,
which are under the possession and administration of Roberto; sometime in June 1989, while on her
one-month vacation, she discovered that he was cohabiting with another woman; she further
discovered that he had been disposing of some of her properties without her knowledge or consent; she
confronted him about this and thereafter appointed her brother Moises R. Avera as her attorney-in-fact
54

to take care of her properties; he failed and refused to turn over the possession and administration of
said properties to her brother/attorney-in-fact; and he is not authorized to administer and possess the
same on account of the nullity of their marriage. The petition prayed that a temporary restraining order
or a writ of preliminary injunction be issued enjoining Roberto from exercising any act of administration
and ownership over said properties; their marriage be declared null and void and of no force and effect;
and Delia Soledad be declared the sole and exclusive owner of all properties acquired at the time of
their void marriage and such properties be placed under the proper management and administration of
the attorney-in-fact.
Petitioner filed a Motion to Dismiss on the ground that the petition stated no cause of action. The
marriage being void ab initio, the petition for the declaration of its nullity is, therefore, superfluous and
unnecessary. It added that private respondent has no property which is in his possession.
On August 20, 1991, Judge Maria Alicia M. Austria issued an Order denying the motion to dismiss for
lack of merit. She explained:
Movant argues that a second marriage contracted after a first marriage by a man with
another woman is illegal and void (citing the case of Yap v. Court of Appeals, 145 SCRA
229) and no judicial decree is necessary to establish the invalidity of a void marriage
(citing the cases of People v. Aragon, 100 Phil. 1033; People v. Mendoza, 95 Phil. 845).
Indeed, under the Yap case there is no dispute that the second marriage contracted by
respondent with herein petitioner after a first marriage with another woman is illegal
and void. However, as to whether or not the second marriage should first be judicially
declared a nullity is not an issue in said case. In the case of Vda. de Consuegra v. GSIS,
the Supreme Court ruled in explicit terms, thus:
And with respect to the right of the second wife, this Court observed
that although the second marriage can be presumed to be void ab
initio as it was celebrated while the first marriage was still subsisting,
still there is need for judicial declaration of its nullity. (37 SCRA 316,
326)
The above ruling which is of later vintage deviated from the previous
rulings of the Supreme Court in the aforecited cases of Aragon and
Mendoza.
Finally, the contention of respondent movant that petitioner has no
property in his possession is an issue that may be determined only after
trial on the merits.
1

A motion for reconsideration was filed stressing the erroneous application of Vda. de Consuegra
v. GSIS
2
and the absence of justiciable controversy as to the nullity of the marriage. On September 11,
1991, Judge Austria denied the motion for reconsideration and gave petitioner fifteen (15) days from
receipt within which to file his answer.
55

Instead of filing the required answer, petitioner filed a special civil action of certiorari and mandamus on
the ground that the lower court acted with grave abuse of discretion amounting to lack of jurisdiction in
denying the motion to dismiss.
On February 7, 1992, the Court of Appeals
3
dismissed the petition. It explained that the case of Yap
v. CA
4
cited by petitioner and that of Consuegra v. GSIS relied upon by the lower court do not have
relevance in the case at bar, there being no identity of facts because these cases dealt with the
successional rights of the second wife while the instant case prays for separation of property corollary
with the declaration of nullity of marriage. It observed that the separation and subsequent distribution
of the properties acquired during the union can be had only upon proper determination of the status of
the marital relationship between said parties, whether or not the validity of the first marriage is denied
by petitioner. Furthermore, in order to avoid duplication and multiplicity of suits, the declaration of
nullity of marriage may be invoked in this proceeding together with the partition and distribution of the
properties involved. Citing Articles 48, 50 and 52 of the Family Code, it held that private respondent's
prayer for declaration of absolute nullity of their marriage may be raised together with other incidents
of their marriage such as the separation of their properties. Lastly, it noted that since the Court has
jurisdiction, the alleged error in refusing to grant the motion to dismiss is merely one of law for which
the remedy ordinarily would have been to file an answer, proceed with the trial and in case of an
adverse decision, reiterate the issue on appeal. The motion for reconsideration was subsequently
denied for lack of merit.
5

Hence, this petition.
The two basic issues confronting the Court in the instant case are the following.
First, whether or not a petition for judicial declaration of a void marriage is necessary. If in the
affirmative, whether the same should be filed only for purposes of remarriage.
Second, whether or not SP No. 1989-J is the proper remedy of private respondent to recover certain real
and personal properties allegedly belonging to her exclusively.
Petitioner, invoking the ruling in People v. Aragon
6
and People v. Mendoza,
7
contends that SP. No. 1989-
J for Declaration of Nullity of Marriage and Separation of Property filed by private respondent must be
dismissed for being unnecessary and superfluous. Furthermore, under his own interpretation of Article
40 of the Family Code, he submits that a petition for declaration of absolute nullity of marriage is
required only for purposes of remarriage. Since the petition in SP No. 1989-J contains no allegation of
private respondent's intention to remarry, said petition should therefore, be dismissed.
On the other hand, private respondent insists on the necessity of a judicial declaration of the nullity of
their marriage, not for purposes of remarriage, but in order to provide a basis for the separation and
distribution of the properties acquired during coverture.
There is no question that the marriage of petitioner and private respondent celebrated while the
former's previous marriage with one Emerlina de la Paz was still subsisting, is bigamous. As such, it is
from the beginning.
8
Petitioner himself does not dispute the absolute nullity of their marriage.
9

56

The cases of People v. Aragon and People v. Mendoza relied upon by petitioner are cases where the
Court had earlier ruled that no judicial decree is necessary to establish the invalidity of a void, bigamous
marriage. It is noteworthy to observe that Justice Alex Reyes, however, dissented on these occasions
stating that:
Though the logician may say that where the former marriage was void there would be
nothing to dissolve, still it is not for the spouses to judge whether that marriage was
void or not. That judgment is reserved to the courts. . . .
10

This dissenting opinion was adopted as the majority position in subsequent cases involving the same
issue. Thus, in Gomez v. Lipana,
11
the Court abandoned its earlier ruling in
the Aragon and Mendoza cases. In reversing the lower court's order forfeiting the husband's share of
the disputed property acquired during the second marriage, the Court stated that "if the nullity, or
annulment of the marriage is the basis for the application of Article 1417, there is need for a judicial
declaration thereof, which of course contemplates an action for that purpose."
Citing Gomez v. Lipana, the Court subsequently held in Vda. de Consuegra v. Government Service
Insurance System, that "although the second marriage can be presumed to be void ab initio as it was
celebrated while the first marriage was still subsisting, still there is need for judicial declaration of such
nullity."
In Tolentino v. Paras,
12
however, the Court turned around and applied the Aragon and Mendoza ruling
once again. In granting the prayer of the first wife asking for a declaration as the lawful surviving spouse
and the correction of the death certificate of her deceased husband, it explained that "(t)he second
marriage that he contracted with private respondent during the lifetime of his first spouse is null and
void from the beginning and of no force and effect. No judicial decree is necessary to establish the
invalidity of a void marriage."
However, in the more recent case of Wiegel v. Sempio-Diy
13
the Court reverted to the Consuegra case
and held that there was "no need of introducing evidence about the existing prior marriage of her first
husband at the time they married each other, for then such a marriage though void still needs according
to this Court a judicial declaration of such fact and for all legal intents and purposes she would still be
regarded as a married woman at the time she contracted her marriage with respondent Karl Heinz
Wiegel."
Came the Family Code which settled once and for all the conflicting jurisprudence on the matter. A
declaration of the absolute nullity of a marriage is now explicitly required either as a cause of action or a
ground for defense.
14
Where the absolute nullity of a previous marriage is sought to be invoked for
purposes of contracting a second marriage, the sole basis acceptable in law for said projected marriage
be free from legal infirmity is a final judgment declaring the previous marriage void.
15

The Family Law Revision Committee and the Civil Code Revision Committee
16
which drafted what is now
the Family Code of the Philippines took the position that parties to a marriage should not be allowed to
assume that their marriage is void even if such be the fact but must first secure a judicial declaration of
the nullity of their marriage before they can be allowed to marry again. This is borne out by the
following minutes of the 152nd Joint Meeting of the Civil Code and Family Law Committees where the
present Article 40, then Art. 39, was discussed.
57

B. Article 39.
The absolute nullity of a marriage may be invoked only on the basis of a
final judgment declaring the marriage void, except as provided in Article
41.
Justice Caguioa remarked that the above provision should include not only void but also
voidable marriages. He then suggested that the above provision be modified as follows:
The validity of a marriage may be invoked only . . .
Justice Reyes (J.B.L. Reyes), however, proposed that they say:
The validity or invalidity of a marriage may be invoked
only . . .
On the other hand, Justice Puno suggested that they say:
The invalidity of a marriage may be invoked only . . .
Justice Caguioa explained that his idea is that one cannot determine for himself whether
or not his marriage is valid and that a court action is needed. Justice Puno accordingly
proposed that the provision be modified to read:
The invalidity of a marriage may be invoked only on the basis of a final
judgment annulling the marriage or declaring the marriage void, except
as provided in Article 41.
Justice Caguioa remarked that in annulment, there is no question. Justice Puno,
however, pointed out that, even if it is a judgment of annulment, they still have to
produce the judgment.
Justice Caguioa suggested that they say:
The invalidity of a marriage may be invoked only on the basis of a final
judgment declaring the marriage invalid, except as provided in Article
41.
Justice Puno raised the question: When a marriage is declared invalid, does it include
the annulment of a marriage and the declaration that the marriage is void? Justice
Caguioa replied in the affirmative. Dean Gupit added that in some judgments, even if
the marriage is annulled, it is declared void. Justice Puno suggested that this matter be
made clear in the provision.
Prof. Baviera remarked that the original idea in the provision is to require first a judicial
declaration of a void marriage and not annullable marriages, with which the other
members concurred. Judge Diy added that annullable marriages are presumed valid
58

until a direct action is filed to annul it, which the other members affirmed. Justice Puno
remarked that if this is so, then the phrase "absolute nullity" can stand since it might
result in confusion if they change the phrase to "invalidity" if what they are referring to
in the provision is the declaration that the marriage is void.
Prof. Bautista commented that they will be doing away with collateral defense as well as
collateral attack. Justice Caguioa explained that the idea in the provision is that there
should be a final judgment declaring the marriage void and a party should not declare
for himself whether or not the marriage is void, while the other members affirmed.
Justice Caguioa added that they are, therefore, trying to avoid a collateral attack on that
point. Prof. Bautista stated that there are actions which are brought on the assumption
that the marriage is valid. He then asked: Are they depriving one of the right to raise the
defense that he has no liability because the basis of the liability is void? Prof. Bautista
added that they cannot say that there will be no judgment on the validity or invalidity of
the marriage because it will be taken up in the same proceeding. It will not be a
unilateral declaration that, it is a void marriage. Justice Caguioa saw the point of Prof.
Bautista and suggested that they limit the provision to remarriage. He then proposed
that Article 39 be reworded as follows:
The absolute nullity of a marriage for purposes of remarriage may be
invoked only on the basis of final judgment . . .
Justice Puno suggested that the above be modified as follows:
The absolute nullity of a previous marriage may be invoked for purposes
of establishing the validity of a subsequent marriage only on the basis of
a final judgment declaring such previous marriage void, except as
provided in Article 41.
Justice Puno later modified the above as follows:
For the purpose of establishing the validity of a subsequent marriage,
the absolute nullity of a previous marriage may only be invoked on the
basis of a final judgment declaring such nullity, except as provided in
Article 41.
Justice Caguioa commented that the above provision is too broad and will not solve the
objection of Prof. Bautista. He proposed that they say:
For the purpose of entering into a subsequent marriage, the absolute
nullity of a previous marriage may only be invoked on the basis of a final
judgment declaring such nullity, except as provided in Article 41.
Justice Caguioa explained that the idea in the above provision is that if one enters into a
subsequent marriage without obtaining a final judgment declaring the nullity of a
previous marriage, said subsequent marriage is void ab initio.
59

After further deliberation, Justice Puno suggested that they go back to the original
wording of the provision as follows:
The absolute nullity of a previous marriage may be invoked for purposes
of remarriage only on the basis of a final judgment declaring such
previous marriage void, except as provided in Article 41.
17

In fact, the requirement for a declaration of absolute nullity of a marriage is also for the protection of
the spouse who, believing that his or her marriage is illegal and void, marries again. With the judicial
declaration of the nullity of his or her first marriage, the person who marries again cannot be charged
with bigamy.
18

Just over a year ago, the Court made the pronouncement that there is a necessity for a declaration of
absolute nullity of a prior subsisting marriage before contracting another in the recent case of Terre
v. Terre.
19
The Court, in turning down the defense of respondent Terre who was charged with grossly
immoral conduct consisting of contracting a second marriage and living with another woman other than
complainant while his prior marriage with the latter remained subsisting, said that "for purposes of
determining whether a person is legally free to contract a second marriage, a judicial declaration that
the first marriage was null and void ab initio is essential."
As regards the necessity for a judicial declaration of absolute nullity of marriage, petitioner submits that
the same can be maintained only if it is for the purpose of remarriage. Failure to allege this purpose,
according to petitioner's theory, will warrant dismissal of the same.
Article 40 of the Family Code provides:
Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment declaring such previous marriage void.
(n)
Crucial to the proper interpretation of Article 40 is the position in the provision of the word "solely." As
it is placed, the same shows that it is meant to qualify "final judgment declaring such previous marriage
void." Realizing the need for careful craftsmanship in conveying the precise intent of the Committee
members, the provision in question, as it finally emerged, did not state "The absolute nullity of a
previous marriage may be invoked solely for purposes of remarriage . . .," in which case "solely" would
clearly qualify the phrase "for purposes of remarriage." Had the phraseology been such, the
interpretation of petitioner would have been correct and, that is, that the absolute nullity of a previous
marriage may be invoked solely for purposes of remarriage, thus rendering irrelevant the clause "on the
basis solely of a final judgment declaring such previous marriage void."
That Article 40 as finally formulated included the significant clause denotes that such final judgment
declaring the previous marriage void need not be obtained only for purposes of remarriage.
Undoubtedly, one can conceive of other instances where a party might well invoke the absolute nullity
of a previous marriage for purposes other than remarriage, such as in case of an action for liquidation,
partition, distribution and separation of property between the erstwhile spouses, as well as an action for
the custody and support of their common children and the delivery of the latters' presumptive legitimes.
In such cases, evidence needs must be adduced, testimonial or documentary, to prove the existence of
60

grounds rendering such a previous marriage an absolute nullity. These need not be limited solely to an
earlier final judgment of a court declaring such previous marriage void. Hence, in the instance where a
party who has previously contracted a marriage which remains subsisting desires to enter into another
marriage which is legally unassailable, he is required by law to prove that the previous one was an
absolute nullity. But this he may do on the basis solely of a final judgment declaring such previous
marriage void.
This leads us to the question: Why the distinction? In other words, for purposes of remarriage, why
should the only legally acceptable basis for declaring a previous marriage an absolute nullity be a final
judgment declaring such previous marriage void? Whereas, for purposes other than remarriage, other
evidence is acceptable?
Marriage, a sacrosanct institution, declared by the Constitution as an "inviolable social institution, is the
foundation of the family;" as such, it "shall be protected by the State."
20
In more explicit terms, the
Family Code characterizes it as "a special contract of permanent union between a man and a woman
entered into in accordance with law for the establishment of conjugal, and family life."
21
So crucial are
marriage and the family to the stability and peace of the nation that their "nature, consequences, and
incidents are governed by law and not subject to stipulation . . ."
22
As a matter of policy, therefore, the
nullification of a marriage for the purpose of contracting another cannot be accomplished merely on the
basis of the perception of both parties or of one that their union is so defective with respect to the
essential requisites of a contract of marriage as to render it void ipso jure and with no legal effect and
nothing more. Were this so, this inviolable social institution would be reduced to a mockery and would
rest on very shaky foundations indeed. And the grounds for nullifying marriage would be as diverse and
far-ranging as human ingenuity and fancy could conceive. For such a social significant institution, an
official state pronouncement through the courts, and nothing less, will satisfy the exacting norms of
society. Not only would such an open and public declaration by the courts definitively confirm the nullity
of the contract of marriage, but the same would be easily verifiable through records accessible to
everyone.
That the law seeks to ensure that a prior marriage is no impediment to a second sought to be contracted
by one of the parties may be gleaned from new information required in the Family Code to be included
in the application for a marriage license, viz, "If previously married, how, when and where the previous
marriage was dissolved and annulled."
23

Reverting to the case before us, petitioner's interpretation of Art. 40 of the Family Code is, undoubtedly,
quite restrictive. Thus, his position that private respondent's failure to state in the petition that the
same is filed to enable her to remarry will result in the dismissal of SP No. 1989-J is untenable. His
misconstruction of Art. 40 resulting from the misplaced emphasis on the term "solely" was in fact
anticipated by the members of the Committee.
Dean Gupit commented the word "only" may be misconstrued to refer to "for purposes
of remarriage." Judge Diy stated that "only" refers to "final judgment." Justice Puno
suggested that they say "on the basis only of a final judgment." Prof. Baviera suggested
that they use the legal term "solely" instead of "only," which the Committee
approved.
24
(Emphasis supplied)
Pursuing his previous argument that the declaration for absolute nullity of marriage is unnecessary,
petitioner suggests that private respondent should have filed an ordinary civil action for the recovery of
61

the properties alleged to have been acquired during their union. In such an eventuality, the lower court
would not be acting as a mere special court but would be clothed with jurisdiction to rule on the issues
of possession and ownership. In addition, he pointed out that there is actually nothing to separate or
partition as the petition admits that all the properties were acquired with private respondent's money.
The Court of Appeals disregarded this argument and concluded that "the prayer for declaration of
absolute nullity of marriage may be raised together with the other incident of their marriage such as the
separation of their properties."
When a marriage is declared void ab initio, the law states that the final judgment therein shall provide
for "the liquidation, partition and distribution of the properties of the spouses, the custody and support
of the common children, and the delivery of their presumptive legitimes, unless such matters had been
adjudicated in previous judicial proceedings."
25
Other specific effects flowing therefrom, in proper
cases, are the following:
Art. 43. xxx xxx xxx
(2) The absolute community of property or the conjugal partnership, as the case may be,
shall be dissolved and liquidated, but if either spouse contracted said marriage in bad
faith, his or her share of the net profits of the community property or conjugal
partnership property shall be forfeited in favor of the common children or, if there are
none, the children of the guilty spouse by a previous marriage or, in default of children,
the innocent spouse;
(3) Donations by reason of marriage shall remain valid, except that if the donee
contracted the marriage in bad faith, such donations made to said donee are revoked by
operation of law;
(4) The innocent spouse may revoke the designation of the other spouse who acted in
bad faith as a beneficiary in any insurance policy, even if such designation be stipulated
as irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad faith shall be
disqualified to inherit from the innocent spouse by testate and intestate succession. (n)
Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage
shall be void ab initio and all donations by reason of marriage and testamentary
disposition made by one in favor of the other are revoked by operation of law. (n)
26

Based on the foregoing provisions, private respondent's ultimate prayer for separation of property will
simply be one of the necessary consequences of the judicial declaration of absolute nullity of their
marriage. Thus, petitioner's suggestion that in order for their properties to be separated, an ordinary
civil action has to be instituted for that purpose is baseless. The Family Code has clearly provided the
effects of the declaration of nullity of marriage, one of which is the separation of property according to
the regime of property relations governing them. It stands to reason that the lower court before whom
the issue of nullity of a first marriage is brought is likewise clothed with jurisdiction to decide the
incidental questions regarding the couple's properties. Accordingly, the respondent court committed no
62

reversible error in finding that the lower court committed no grave abuse of discretion in denying
petitioner's motion to dismiss SP No. 1989-J.
WHEREFORE, the instant petition is hereby DENIED. The decision of respondent Court dated February 7,
1992 and the Resolution dated March 20, 1992 are AFFIRMED.
SO ORDERED.
Bidin and Melo, JJ., concur.
Feliciano, J., is on leave.



Separate Opinions

VITUG, J., concurring:
I concur with the opinion so well expressed by Mme. Justice Flerida Ruth P. Romero. I should like,
however, to put in a modest observation.
Void marriages are inexistent from the very beginning and, I believe, no judicial decree is required to
establish their nullity, except in the following instances:
(a) For purposes of remarriage pursuant to the provision of Article 40 of the Family Code; viz.:
The absolute nullity of a previous marriage may be invoked for purposes of remarriage
on the basis solely of a final judgment declaring such previous marriage void. (n)
(b) A marriage celebrated prior to the effectivity of the Family Code in case a party thereto was
psychologically incapacitated to comply with the essential marital obligations of marriage (Article 36,
Family Code), where an action or defense for the declaration of nullity prescribes ten (10) years after the
Family Code took effect (Article 39, Family Code); otherwise, the marriage is deemed unaffected by the
Family Code.
A void marriage, even without its being judicially declared a nullity, albeit the preferability for, and
justiciability (fully discussed in the majority opinion) of, such a declaration, will not give it the status or
the consequences of a valid marriage, saving only specific instances where certain effects of a valid
marriage can still flow from the void marriage. Examples of these cases are children of void marriages
under Article 36 (due to psychological incapacity) and Article 53, in relation to Article 52 (due to failure
of partition, delivery of presumptive legitimes of children and recording thereof following the
63

annulment or declaration of nullity a prior marriage), conceived or born before the judicial declaration
of nullity of such void marriages, who the law deems as legitimate (Article 54, Family Code).
In most, if not in all, other cases, a void marriage is to be considered extant per se. Neither the conjugal,
partnership of gain under the old regime nor the absolute community of property under the new Code
(absent a marriage settlement), will apply; instead, their property relations shall be governed by the co-
ownership rules under either Article 147 or Article 148 of the Family Code. I must hasten to add as a
personal view, however, that the exceptional effects on children of a void marriage because of the
psychological incapacity of a party thereto should have been extended to cover even the personal and
property relations of the spouses. Unlike the other cases of void marriages where the grounds therefor
may be established by hard facts and with little uncertainty, the term "psychological incapacity" is so
relative and unsettling that until a judicial declaration of nullity is made its interim effects can long and
literally hang on the balance not only insofar as the spouses themselves are concerned but also as
regards third persons with whom the spouses deal.


# Separate Opinions
VITUG, J., concurring:
I concur with the opinion so well expressed by Mme. Justice Flerida Ruth P. Romero. I should like,
however, to put in a modest observation.
Void marriages are inexistent from the very beginning and, I believe, no judicial decree is required to
establish their nullity, except in the following instances:
(a) For purposes of remarriage pursuant to the provision of Article 40 of the Family Code; viz.:
The absolute nullity of a previous marriage may be invoked for purposes of remarriage
on the basis solely of a final judgment declaring such previous marriage void. (n)
(b) A marriage celebrated prior to the effectivity of the Family Code in case a party thereto was
psychologically incapacitated to comply with the essential marital obligations of marriage (Article 36,
Family Code), where an action or defense for the declaration of nullity prescribes ten (10) years after the
Family Code took effect (Article 39, Family Code); otherwise, the marriage is deemed unaffected by the
Family Code.
A void marriage, even without its being judicially declared a nullity, albeit the preferability for, and
justiciability (fully discussed in the majority opinion) of, such a declaration, will not give it the status or
the consequences of a valid marriage, saving only specific instances where certain effects of a valid
marriage can still flow from the void marriage. Examples of these cases are children of void marriages
under Article 36 (due to psychological incapacity) and Article 53, in relation to Article 52 (due to failure
of partition, delivery of presumptive legitimes of children and recording thereof following the
64

annulment or declaration of nullity a prior marriage), conceived or born before the judicial declaration
of nullity of such void marriages, who the law deems as legitimate (Article 54, Family Code).
In most, if not in all, other cases, a void marriage is to be considered extant per se. Neither the conjugal,
partnership of gain under the old regime nor the absolute community of property under the new Code
(absent a marriage settlement), will apply; instead, their property relations shall be governed by the co-
ownership rules under either Article 147 or Article 148 of the Family Code. I must hasten to add as a
personal view, however, that the exceptional effects on children of a void marriage because of the
psychological incapacity of a party thereto should have been extended to cover even the personal and
property relations of the spouses. Unlike the other cases of void marriages where the grounds therefor
may be established by hard facts and with little uncertainty, the term "psychological incapacity" is so
relative and unsettling that until a judicial declaration of nullity is made its interim effects can long and
literally hang on the balance not only insofar as the spouses themselves are concerned but also as
regards third persons with whom the spouses deal.

65

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. NO. 158896 October 27, 2004
JUANITA CARATING-SIAYNGCO, petitioner,
vs.
MANUEL SIAYNGCO, respondent.
D E C I S I O N
CHICO-NAZARIO, J.:
This is a petition for review on certiorari of the decision
1
of the Court of Appeals promulgated on 01 July
2003, reversing the decision
2
of the Regional Trial Court (RTC), Branch 102, Quezon City, dated 31
January 2001, which dismissed the petition for declaration of nullity of marriage filed by respondent
herein Judge Manuel Siayngco ("respondent Manuel").
Petitioner Juanita Carating-Siayngco ("Petitioner Juanita") and respondent Manuel were married at civil
rites on 27 June 1973 and before the Catholic Church on 11 August 1973. After discovering that they
could not have a child of their own, the couple decided to adopt a baby boy in 1977, who they named
Jeremy.
On 25 September 1997, or after twenty-four (24) years of married life together, respondent Manuel
filed for the declaration of its nullity on the ground of psychological incapacity of petitioner Juanita. He
alleged that all throughout their marriage, his wife exhibited an over domineering and selfish attitude
towards him which was exacerbated by her extremely volatile and bellicose nature; that she incessantly
complained about almost everything and anyone connected with him like his elderly parents, the staff in
his office and anything not of her liking like the physical arrangement, tables, chairs, wastebaskets in his
office and with other trivial matters; that she showed no respect or regard at all for the prestige and
high position of his office as judge of the Municipal Trial Court; that she would yell and scream at him
and throw objects around the house within the hearing of their neighbors; that she cared even less
about his professional advancement as she did not even give him moral support and encouragement;
that her psychological incapacity arose before marriage, rooted in her deep-seated resentment and
vindictiveness for what she perceived as lack of love and appreciation from her own parents since
childhood and that such incapacity is permanent and incurable and, even if treatment could be
attempted, it will involve time and expense beyond the emotional and physical capacity of the parties;
and that he endured and suffered through his turbulent and loveless marriage to her for twenty-two
(22) years.
In her Answer, petitioner Juanita alleged that respondent Manuel is still living with her at their conjugal
home in Malolos, Bulacan; that he invented malicious stories against her so that he could be free to
marry his paramour; that she is a loving wife and mother; that it was respondent Manuel who was
remiss in his marital and family obligations; that she supported respondent Manuel in all his endeavors
66

despite his philandering; that she was raised in a real happy family and had a happy childhood contrary
to what was stated in the complaint.
In the pre-trial order,
3
the parties only stipulated on the following:
1. That they were married on 27 June 1973;
2. That they have one son who is already 20 years old.
Trial on the merits ensued thereafter. Respondent Manuel first took the witness stand and elaborated
on the allegations in his petition. He testified that his parents never approved of his marriage as they
still harbored hope that he would return to the seminary.
4
The early years of their marriage were
difficult years as they had a hard time being accepted as husband and wife by his parents and it was at
this period that his wife started exhibiting signs of being irritable and temperamental
5
to him and his
parents.
6
She was also obsessive about cleanliness which became the common source of their
quarrels.
7
He, however, characterized their union as happy during that period of time in 1979 when they
moved to Malolos as they were engrossed in furnishing their new house.
8
In 1981, when he became
busy with law school and with various community organizations, it was then that he felt that he and his
wife started to drift apart.
9
He then narrated incidents during their marriage that were greatly
embarrassing and/or distressing to him, e.g., when his wife quarreled with an elderly neighbor;
10
when
she would visit him in his office and remark that the curtains were already dirty or when she kicked a
trash can across the room or when she threw a ballpen from his table;
11
when she caused his office
drawer to be forcibly opened while he was away;
12
when she confronted a female tenant of theirs and
accused the tenant of having an affair with him;
13
and other incidents reported to him which would
show her jealous nature. Money matters continued to be a source of bitter quarrels.
14
Respondent
Manuel could not forget that he was not able to celebrate his appointment as judge in 1995 as his wife
did not approve it, ostensibly for lack of money, but she was very generous when it came to celebrations
of their parish priest.
15
Respondent Manuel then denied that he was a womanizer
16
or that he had a
mistress.
17
Lastly, respondent Manuel testified as to their conjugal properties and obligations.
18

Next, LUCENA TAN, respondent Manuels Clerk of Court, testified that petitioner Juanita seldom went to
respondent Manuels office.
19
But when she was there, she would call witness to complain about the
curtains and the cleanliness of the office.
20
One time, witness remembered petitioner Juanita
rummaging through respondent Manuels drawer looking for his address book while the latter was in
Subic attending a conference.
21
When petitioner Juanita could not open a locked drawer she called
witness, telling the latter that she was looking for the telephone number of respondents hotel room in
Subic. A process server was requested by petitioner Juanita to call for a locksmith in the town proper.
When the locksmith arrived, petitioner Juanita ordered him to open the locked drawer. On another
occasion, particularly in August of 1998, witness testified that she heard petitioner Juanita remark to
respondent Manuel "sino bang batang bibinyagan na yan? Baka anak mo yan sa labas?"
22

As his third witness, respondent Manuel presented DR. VALENTINA GARCIA whose professional
qualifications as a psychiatrist were admitted by petitioner Juanita.
23
From her psychiatric
evaluation,
24
Dr. Garcia concluded:
67

To sum up, Manuel de Jesus Siayngco and Juanita Victoria Carating-Siayngco contributed to the
marital collapse. There is a partner relational problem which affected their capacity to sustain
the marital bond with love, support and understanding.
The partner relational problem (coded V61/10 in the Fourth Edition of the Diagnostic and
Statistical Manual of Mental Disorders or DSM IV) is secondary to the psychopathology of both
spouses. Manuel and Juanita had engaged themselves in a defective communication pattern
which is characteristically negative and deformed. This affected their competence to maintain
the love and respect that they should give to each other.
Marriage requires a sustained level of adaptation from both partners who are expected to use
healthy strategies to solve their disputes and differences. Whereas Juanita would be derogatory,
critical, argumentative, depressive and obsessive-compulsive, Manuel makes use of avoidance
and suppression. In his effort to satisfy the self and to boost his masculine ego to cover up for
his felt or imagined inadequacies, he became callused to the detrimental effects of his
unfaithfulness and his failure to prioritize the marriage. Both spouses, who display narcissistic
psychological repertoire (along with their other maladaptive traits), failed to adequately
empathize (or to be responsive and sensitive) to each others needs and feelings. The
matrimonial plot is not conducive to a healthy and a progressive marriage. Manuel and Juanita
have shown their psychologically [sic] incapacity to satisfactorily comply with the fundamental
duties of marriage. The clashing of their patterns of maladaptive traits, which warrant the
diagnosis of personality disorder not otherwise specified (PDNOS, with code 301.9 as per DSM
IV criteria) will bring about more emotional mishaps and psychopathology. These rigid sets of
traits which were in existence before the marriage will tend to be pervasive and impervious to
recovery.
25

In her defense, petitioner Juanita denied respondent Manuels allegations. She insisted that they were a
normal couple who had their own share of fights; that they were happily married until respondent
Manuel started having extra-marital affairs
26
which he had admitted to her.
27
Petitioner Juanita
professed that she would wish to preserve her marriage and that she truly loved her husband.
28
She
stated further that she has continuously supported respondent Manuel, waiting up for him while he was
in law school to serve him food and drinks. Even when he already filed the present case, she would still
attend to his needs.
29
She remembered that after the pre-trial, while they were in the hallway,
respondent Manuel implored her to give him a chance to have a new family.
30

DR. EDUARDO MAABA, whose expertise as a psychiatrist was admitted by respondent
Manuel,
31
testified that he conducted a psychiatric evaluation on petitioner Juanita, the results of which
were embodied in his report. Said report stated in part:
Based on the clinical interviews and the results of the psychological tests, respondent Juanita
Victoria Carating-Siayngco, was found to be a mature, conservative, religious and highly
intelligent woman who possess [sic] more than enough psychological potentials for a mutually
satisfying long term heterosexual relationship. Superego is strong and she is respectful of
traditional institutions of society like the institution of marriage. She was also found to be a
loving, nurturing and self-sacrificing woman who is capable of enduring severe environmental
stress in her social milieu. Finally, she is reality-oriented and therefore capable of rendering fair
and sound decision.
68

In summary, the psychiatric evaluation found the respondent to be psychologically capacitated
to comply with the basic and essential obligations of marriage.
32

CRISPINA SEVILLA, a friend of the spouses Siayngco since 1992 described the Siayngcos as the ideal
couple, sweet to each other.
33
The couple would religiously attend prayer meetings in the
community.
34
Both were likewise leaders in their community.
35
Witness then stated that she would
often go to the house of the couple and, as late as March 2000, she still saw respondent Manuel there.
36

On 31 January 2001, the trial court denied respondent Manuels petition for declaration of nullity of his
marriage to petitioner Juanita holding in part that:
The asserted psychological incapacity of the defendant is not preponderantly supported in
evidence. The couple [was] happily married and after four years of marital bliss [was] blest with
a son. Their life together continued years thereafter in peace and prosperity.
The psychiatric finding that defendant has been critical, depressed and obsessive doubtless
arose later in the parties relationship sometime in the early 90s when the defendant-wife
started receiving letters that the plaintiff is playing footsy.
x x x x x x x x x
The present state of our laws on marriage does not favor knee-jerk responses to slight stabs of
the Pavlovian hammer on marital relations. A wife, as in the instant case, may have succumbed,
due to her jealousy, to the constant delivery of irritating curtain lectures to her husband. But, as
our laws now stand, the dissolution of the marriage is not the remedy in such cases. In contrast
to some countries, our laws do not look at a marital partner as a mere refrigerator in the Kitchen
even if he or she sometimes may sound like a firetruck.
37

A motion for reconsideration was filed but was denied in an order dated 04 May 2001.
38

On 01 July 2003, the Court of Appeals reversed the RTC decision, relying mainly on the psychiatric
evaluation of Dr. Garcia finding both Manuel and Juanita psychologically incapacitated and on the case
of Chi Ming Tsoi v. Court of Appeals.
39
Thus:
The report clearly explained the root cause of the alleged psychological incapacity of plaintiff
Manuel and defendant Juanita. It appears that there is empathy between plaintiff and
defendant. That is a shared feeling which between husband and wife must be experienced not
only by having spontaneous sexual intimacy but a deep sense of spiritual communion. Marital
union is a two-way process. An expressive interest in each others feelings at a time it is needed
by the other can go a long way in deepening the marital relationship. Marriage is definitely not
for children but for two consenting adults who view the relationship with love "amore gignit
amorem", sacrifice and a continuing commitment to compromise conscious of its value as a
sublime social institution (Chi Ming Tsoi vs. Court of Appeals, 266 SCRA 324).
This court, finding the gravity of the failed relationship in which the parties found themselves
trapped in its mire of unfulfilled vows and unconsummated marital obligations, can do no less,
but reverse and set aside the decision of the lower court. Plaintiff Manuel is entitled to have his
69

marriage declared a nullity on the ground of psychological incapacity, not only of defendant but
also of himself.
40

Petitioner contends that the Court of Appeals erred
I. IN ITS FINDINGS THAT PETITIONER JUANITA IS PSYCHOLOGICALLY INCAPACITATED
II. IN ITS FINDINGS OF FACT THAT PETITIONER AND RESPONDENT SEPARATED ON MARCH 1997,
THE TRUTH IS THAT THEY ARE STILL LIVING TOGETHER AS HUSBAND AND WIFE AT THE TIME OF
THE FILING OF THE PETITION UP TO THE PRESENT
III. WHEN IT DID NOT FOLLOW THE GUIDELINES LAID DOWN BY THE SUPREME COURT IN THE
CASE OF REPUBLIC V. MOLINA
IV. IN DECLARING THE MARRIAGE OF HEREIN PETITIONER AND RESPONDENT NULL AND VOID
ON GROUND OF PSYCHOLOGICAL INCAPACITY UNDER ARTICLE 36 OF THE FAMILY CODE
The Courts Ruling
Our pronouncement in Republic v. Dagdag
41
is apropos. There, we held that whether or not
psychological incapacity exists in a given case calling for the declaration of the nullity of the marriage
depends crucially on the facts of the case. Each case must be closely scrutinized and judged according to
its own facts as there can be no case that is on "all fours" with another. This, the Court of Appeals did
not heed.
The Court of Appeals perfunctorily applied our ruling in Chi Ming Tsoi despite a clear divergence in its
factual milieu with the case at bar. In Chi Ming Tsoi, the couple involved therein, despite sharing the
same bed from the time of their wedding night on 22 May 1988 until their separation on 15 March 1989,
never had coitus. The perplexed wife filed the petition for the declaration of the nullity of her marriage
on the ground of psychological incapacity of her husband. We sustained the wife for the reason that an
essential marital obligation under the Family Code is procreation such that "the senseless and
protracted refusal of one of the parties to fulfill the above marital obligation is equivalent to
psychological incapacity."
On the other hand, sexual intimacy for procreation is a non-issue herein. Rather, we have here a case of
a husband who is constantly embarrassed by his wifes outbursts and overbearing ways, who finds his
wifes obsession with cleanliness and the tight reign on his wallet "irritants" and who is wounded by her
lack of support and respect for his person and his position as a Judge. In our book, however, these
inadequacies of petitioner Juanita which led respondent Manuel to file a case against her do not amount
to psychological incapacity to comply with the essential marital obligations.
It was in Santos v. Court of Appeals
42
where we declared that "psychological incapacity" under Article 36
of the Family Code is not meant to comprehend all possible cases of psychoses. It should refer, rather, to
no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic
marital covenants that concomitantly must be assumed and discharged by the parties to the marriage.
Psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c)
incurability.
43
In Republic v. Court of Appeals
44
we expounded:
70

(1) The burden of proof to show the nullity of marriage belongs to the plaintiff. Any doubt
should be resolved in favor of the existence and continuation of the marriage and against its
dissolution and nullity. This is rooted in the fact that both our Constitution and our laws cherish
the validity of marriage and unity of the family. Thus, our Constitution devotes an entire Article
on the Family, recognizing it "as the foundation of the nation." It decrees marriage as legally
"inviolable," thereby protecting it from dissolution at the whim of the parties. Both the family
and marriage are to be "protected" by the state. The Family Code echoes this constitutional
edict on marriage and the family and emphasizes their permanence, inviolability and solidarity.
(2) The root cause of the psychological incapacity must be: a) medically or clinically identified, b)
alleged in the complaint, c) sufficiently proven by experts and d) clearly explained in the
decision. Article 36 of the Family Code requires that the incapacity must be psychological not
physical, although its manifestations and/or symptoms may be physical. The evidence must
convince the court that the parties, or one of them, was mentally or physically ill to such an
extent that the person could not have known the obligations he was assuming, or knowing
them, could not have given valid assumption thereof. Although no example of such incapacity
need be given here so as not to limit the application of the provision under the principle of
ejusdem generis, nevertheless such root cause must be identified as a psychological illness and
its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists
and clinical psychologists.
(3) The incapacity must be proven to be existing at the "time of the celebration" of the marriage.
The evidence must show that the illness was existing when the parties exchanged their "I dos."
The manifestation of the illness need not be perceivable at such time, but the illness itself must
have attached at such moment, or prior thereto.
(4) Such incapacity must also be shown to be medically or clinically permanent or incurable.
Such incurability may be absolute or even relative only in regard to the other spouse, not
necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be
relevant to the assumption of marriage obligations, not necessarily to those not related to
marriage like the exercise of a profession or employment in a job. Hence, a pediatrician may be
effective in diagnosing illnesses of children and prescribing medicine to cure them but may not
be psychologically capacitated to procreate, bear and raise his/her own children as an essential
obligation of marriage.
(5) Such illness must be grave enough to bring about the disability of the party to assume the
essential obligations of marriage. Thus, "mild characteriological peculiarities, mood changes,
occasional emotional outbursts" cannot be accepted as root causes. The illness must be shown
as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other
words, there is a natal or supervening disabling factor in the person, an adverse integral element
in the personality structure that effectively incapacitates the person from really accepting and
thereby complying with the obligations essential to marriage.
(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the
Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same
Code in regard to parents and their children. Such non-complied marital obligation(s) must also
be stated in the petition, proven by evidence and included in the text of the decision.
71

(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church
in the Philippines, while not controlling or decisive, should be given great respect by our
courts.
45

With the foregoing pronouncements as compass, we now resolve the issue of whether or not the
totality of evidence presented is enough to sustain a finding of psychological incapacity against
petitioner Juanita and/or respondent Manuel.
A. RE: PSYCHOLOGICAL INCAPACITY OF RESPONDENT MANUEL
We reiterate that the state has a high stake in the preservation of marriage rooted in its recognition of
the sanctity of married life and its mission to protect and strengthen the family as a basic autonomous
social institution.
46
With this cardinal state policy in mind, we held in Republic v. Court of Appeals
47
that
the burden of proof to show the nullity of marriage belongs to the plaintiff (respondent Manuel herein).
Any doubt should be resolved in favor of the existence and continuation of the marriage and against its
dissolution and nullity.
In herein case, the Court of Appeals committed reversible error in holding that respondent Manuel is
psychologically incapacitated. The psychological report of Dr. Garcia, which is respondent Manuels own
evidence, contains candid admissions of petitioner Juanita, the person in the best position to gauge
whether or not her husband fulfilled the essential marital obligations of marriage:
She talked about her spouse, "My husband is kind, a good provider, cool, intelligent but a liar,
masamang magalit at gastador. In spite of what he has done to me, I take care of him whenever
he is sick. He is having extra marital affairs because he wants to have a child. I believe that our
biggest problem is not having a child. It is his obsession to have a child with his girl now. He
started his relationship with this girl in 1994. I even saw them together in the car. I think that it
was the girl who encouraged him to file the petition." She feels that the problems in the
relationship is [sic] "paulit-ulit," but, that she still is willing to pursue it.
x x x. Overall, she feels that he is a good spouse and that he is not really psychologically
incapacitated. He apparently told her, "You and Jeremy should give me a chance to have a new
family." She answered and said, "Ikaw tinuruan mo akong to fight for my right. Ipaglalaban ko
ang marriage natin."
48

What emerges from the psychological report of Dr. Garcia as well as from the testimonies of the parties
and their witnesses is that the only essential marital obligation which respondent Manuel was not able
to fulfill, if any, is the obligation of fidelity.
49
Sexual infidelity, per se, however, does not constitute
psychological incapacity within the contemplation of the Family Code.
50
It must be shown that
respondent Manuels unfaithfulness is a manifestation of a disordered personality which makes him
completely unable to discharge the essential obligations of the marital state
51
and not merely due to his
ardent wish to have a child of his own flesh and blood. In herein case, respondent Manuel has admitted
that: "I had [extra-marital] affairs because I wanted to have a child at that particular point."
52

B. RE: PSYCHOLOGICAL INCAPACITY OF PETITIONER JUANITA
72

As aforementioned, the presumption is always in favor of the validity of marriage. Semper praesumitur
pro matrimonio. In the case at bar, respondent Manuel failed to prove that his wifes lack of respect for
him, her jealousies and obsession with cleanliness, her outbursts and her controlling nature (especially
with respect to his salary), and her inability to endear herself to his parents are grave psychological
maladies that paralyze her from complying with the essential obligations of marriage. Neither is there
any showing that these "defects" were already present at the inception of the marriage or that they are
incurable.
53
In fact, Dr. Maaba, whose expertise as a psychiatrist was admitted by respondent Manuel,
reported that petitioner was psychologically capacitated to comply with the basic and essential
obligations of marriage.
54

The psychological report of respondent Manuels witness, Dr. Garcia, on the other hand, does not help
his case any. Nothing in there supports the doctors conclusion that petitioner Juanita is psychologically
incapacitated. On the contrary, the report clearly shows that the root cause of petitioner Juanitas
behavior is traceable not from the inception of their marriage as required by law but from her
experiences during the marriage, e.g., her in-laws disapproval of her as they wanted their son to enter
the priesthood,
55
her husbands philandering, admitted no less by him,
56
and her inability to
conceive.
57
Dr. Garcias report paints a story of a husband and wife who grew professionally during the
marriage, who pursued their individual dreams to the hilt, becoming busier and busier, ultimately
sacrificing intimacy and togetherness as a couple. This was confirmed by respondent Manuel himself
during his direct examination.
58

Thus, from the totality of the evidence adduced by both parties, we have been allowed a window into
the Siayngcoss life and have perceived therefrom a simple case of a married couple drifting apart,
becoming strangers to each other, with the husband consequently falling out of love and wanting a way
out.
An unsatisfactory marriage, however, is not a null and void marriage. Mere showing of "irreconcilable
differences" and "conflicting personalities" in no wise constitutes psychological incapacity.
59
As we
stated in Marcos v. Marcos:
60

Article 36 of the Family Code, we stress, is not to be confused with a divorce law that cuts the
marital bond at the time the causes therefore manifests themselves. It refers to a serious
psychological illness afflicting a party even before the celebration of the marriage. It is a malady
so grave and so permanent as to deprive one of awareness of the duties and responsibilities of
the matrimonial bond one is about to assume.
We are not downplaying the frustration and misery respondent Manuel might be experiencing
in being shackled, so to speak, to a marriage that is no longer working. Regrettably, there are
situations like this one, where neither law nor society can provide the specific answers to every
individual problem.
61

WHEREFORE, the petition for review is hereby GRANTED. The Decision dated 01 July 2003 of the Court
of Appeals is hereby REVERSED and SET ASIDE. The Decision dated 31 January 2001 of the Regional Trial
Court of Quezon City, Branch 102 is reinstated and given full force and effect. No costs.
SO ORDERED.
73

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

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

TORRES, JR., J.:
Man has not invented a reliable compass by which to steer a marriage in its journey over troubled
waters. Laws are seemingly inadequate. Over time, much reliance has been placed in the works of the
unseen hand of Him who created all things.
Who is to blame when a marriage fails?
This case was originally commenced by a distraught wife against her uncaring husband in the Regional
Trial Court of Quezon City (Branch 89) which decreed the annulment of the marriage on the ground of
psychological incapacity. Petitioner appealed the decision of the trial court to respondent Court of
Appeals (CA-G.R. CV No. 42758) which affirmed the Trial Court's decision November 29, 1994 and
correspondingly denied the motion for reconsideration in a resolution dated February 14, 1995.
The statement of the case and of the facts made by the trial court and reproduced by the Court of
Appeals
1
its decision are as follows:
From the evidence adduced, the following acts were preponderantly established:
Sometime on May 22, 1988, the plaintiff married the defendant at the Manila Cathedral, . . .
Intramuros Manila, as evidenced by their Marriage Contract. (Exh. "A")
After the celebration of their marriage and wedding reception at the South Villa, Makati, they
went and proceeded to the house of defendant's mother.
There, they slept together on the same bed in the same room for the first night of their married
life.
It is the version of the plaintiff, that contrary to her expectations, that as newlyweds they were
supposed to enjoy making love, or having sexual intercourse, with each other, the defendant
just went to bed, slept on one side thereof, then turned his back and went to sleep . There was
74

no sexual intercourse between them during the first night. The same thing happened on the
second, third and fourth nights.
In an effort to have their honeymoon in a private place where they can enjoy together during
their first week as husband and wife, they went to Baguio City. But, they did so together with
her mother, an uncle, his mother and his nephew. They were all invited by the defendant to join
them. [T]hey stayed in Baguio City for four (4) days. But, during this period, there was no sexual
intercourse between them, since the defendant avoided her by taking a long walk during siesta
time or by just sleeping on a rocking chair located at the living room. They slept together in the
same room and on the same bed since May 22, 1988 until March 15, 1989. But during this
period, there was no attempt of sexual intercourse between them. [S]he claims, that she did
not: even see her husband's private parts nor did he see hers.
Because of this, they submitted themselves for medical examinations to Dr. Eufemio Macalalag,
a urologist at the Chinese General Hospital, on January 20, 1989.
The results of their physical examinations were that she is healthy, normal and still a virgin,
while that of her husband's examination was kept confidential up to this time. While no
medicine was prescribed for her, the doctor prescribed medications for her husband which was
also kept confidential. No treatment was given to her. For her husband, he was asked by the
doctor to return but he never did.
The plaintiff claims, that the defendant is impotent, a closet homosexual as he did not show his
penis. She said, that she had observed the defendant using an eyebrow pencil and sometimes
the cleansing cream of his mother. And that, according to her, the defendant married her, a
Filipino citizen, to acquire or maintain his residency status here in the country and to publicly
maintain the appearance of a normal man.
The plaintiff is not willing to reconcile with her husband.
On the other hand, it is the claim of the defendant that if their marriage shall be annulled by
reason of psychological incapacity, the fault lies with his wife.
But, he said that he does not want his marriage with his wife annulled for several reasons, viz:
(1) that he loves her very much; (2) that he has no defect on his part and he is physically and
psychologically capable; and, (3) since the relationship is still very young and if there is any
differences between the two of them, it can still be reconciled and that, according to him, if
either one of them has some incapabilities, there is no certainty that this will not be cured. He
further claims, that if there is any defect, it can be cured by the intervention of medical
technology or science.
The defendant admitted that since their marriage on May 22, 1988, until their separation on
March 15, 1989, there was no sexual contact between them. But, the reason for this, according
to the defendant, was that everytime he wants to have sexual intercourse with his wife, she
always avoided him and whenever he caresses her private parts, she always removed his hands.
The defendant claims, that he forced his wife to have sex with him only once but he did not
continue because she was shaking and she did not like it. So he stopped.
75

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

After trial, the court rendered judgment, the dispositive portion of which reads:
ACCORDINGLY, judgment is hereby rendered declaring as VOID the marriage entered into by the
plaintiff with the defendant on May 22, 1988 at the Manila Cathedral, Basilica of the Immaculate
Conception, Intramuros, Manila, before the Rt. Rev. Msgr. Melencio de Vera. Without costs. Let
a copy of this decision be furnished the Local Civil Registrar of Quezon City. Let another copy be
furnished the Local Civil Registrar of Manila.
SO ORDERED.
On appeal, the Court of Appeals affirmed the trial court's decision.
Hence, the instant petition.
Petitioner alleges that the respondent Court of Appeals erred:
I
in affirming the conclusions of the lower court that there was no sexual intercourse between the
parties without making any findings of fact.
II
in holding that the refusal of private respondent to have sexual communion with petitioner is a
psychological incapacity inasmuch as proof thereof is totally absent.
76

III
in holding that the alleged refusal of both the petitioner and the private respondent to have sex
with each other constitutes psychological incapacity of both.
IV
in affirming the annulment of the marriage between the parties decreed by the lower court
without fully satisfying itself that there was no collusion between them.
We find the petition to be bereft of merit.
Petitioner contends that being the plaintiff in Civil Case No. Q-89-3141, private respondent has the
burden of proving the allegations in her complaint; that since there was no independent evidence to
prove the alleged non-coitus between the parties, there remains no other basis for the court's
conclusion except the admission of petitioner; that public policy should aid acts intended to validate
marriage and should retard acts intended to invalidate them; that the conclusion drawn by the trial
court on the admissions and confessions of the parties in their pleadings and in the course of the trial is
misplaced since it could have been a product of collusion; and that in actions for annulment of marriage,
the material facts alleged in the complaint shall always be proved.
3

Section 1, Rule 19 of the Rules of Court reads:
Section 1. Judgment on the pleadings. Where an answer fails to tender an issue, or otherwise
admits the material allegations of the adverse party's pleading, the court may, on motion of that
party, direct judgment on such pleading. But in actions for annulment of marriage or for legal
separation the material facts alleged in the complaint shall always be proved.
The foregoing provision pertains to a judgment on the pleadings. What said provision seeks to prevent is
annulment of marriage without trial. The assailed decision was not based on such a judgment on the
pleadings. When private respondent testified under oath before the trial court and was cross-examined
by oath before the trial court and was cross-examined by the adverse party, she thereby presented
evidence in form of a testimony. After such evidence was presented, it be came incumbent upon
petitioner to present his side. He admitted that since their marriage on May 22, 1988, until their
separation on March 15, 1989, there was no sexual intercourse between them.
To prevent collusion between the parties is the reason why, as stated by the petitioner, the Civil Code
provides that no judgment annulling a marriage shall be promulgated upon a stipulation of facts or by
confession of judgment (Arts. 88 and 101[par. 2]) and the Rules of Court prohibit such annulment
without trial (Sec. 1, Rule 19).
The case has reached this Court because petitioner does not want their marriage to be annulled. This
only shows that there is no collusion between the parties. When petitioner admitted that he and his
wife (private respondent) have never had sexual contact with each other, he must have been only telling
the truth. We are reproducing the relevant portion of the challenged resolution denying petitioner's
Motion for Reconsideration, penned with magisterial lucidity by Associate Justice Minerva Gonzaga-
Reyes, viz:
77

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

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

Evidently, one of the essential marital obligations under the Family Code is "To procreate children based
on the universal principle that procreation of children through sexual cooperation is the basic end of
marriage." Constant non- fulfillment of this obligation will finally destroy the integrity or wholeness of
78

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

While the law provides that the husband and the wife are obliged to live together, observe mutual love,
respect and fidelity (Art. 68, Family Code), the sanction therefor is actually the "spontaneous, mutual
affection between husband and wife and not any legal mandate or court order" (Cuaderno vs. Cuaderno
120 Phil. 1298). Love is useless unless it is shared with another. Indeed, no man is an island, the cruelest
act of a partner in marriage is to say "I could not have cared less." This is so because an ungiven self is an
unfulfilled self. The egoist has nothing but himself. In the natural order, it is sexual intimacy which brings
spouses wholeness and oneness. Sexual intimacy is a gift and a participation in the mystery of creation.
It is a function which enlivens the hope of procreation and ensures the continuation of family relations.
It appears that there is absence of empathy between petitioner and private respondent. That is a
shared feeling which between husband and wife must be experienced not only by having spontaneous
sexual intimacy but a deep sense of spiritual communion. Marital union is a two-way process. An
expressive interest in each other's feelings at a time it is needed by the other can go a long way in
deepening the marital relationship. Marriage is definitely not for children but for two consenting adults
who view the relationship with love amor gignit amorem, respect, sacrifice and a continuing
commitment to compromise, conscious of its value as a sublime social institution.
This Court, finding the gravity of the failed relationship in which the parties found themselves trapped in
its mire of unfulfilled vows and unconsummated marital obligations, can do no less but sustain the
studied judgment of respondent appellate court.
79

IN VIEW OF THE FOREGOING PREMISES , the assailed decision of the Court of Appeals dated November
29, 1994 is hereby AFFIRMED in all respects and the petition is hereby DENIED for lack of merit.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 167109 February 6, 2007
FELICITAS AMOR-CATALAN, Petitioner,
vs.
COURT OF APPEALS, MANILA, ORLANDO B. CATALAN and MEROPE E. BRAGANZA, Respondents.
D E C I S I O N
YNARES-SANTIAGO, J.:
This petition for review assails the Decision
1
of the Court of Appeals in CA-G.R. CV No. 69875 dated
August 6, 2004, which reversed the Decision
2
of the Regional Trial Court (RTC) of Dagupan City, Branch
44, in Civil Case No. D-10636, declaring the marriage between respondents Orlando B. Catalan and
Merope E. Braganza void on the ground of bigamy, as well as the Resolution
3
dated January 27, 2005,
which denied the motion for reconsideration.
Petitioner Felicitas Amor-Catalan married respondent Orlando on June 4, 1950 in Mabini,
Pangasinan.
4
Thereafter, they migrated to the United States of America and allegedly became
naturalized citizens thereof. After 38 years of marriage, Felicitas and Orlando divorced in April 1988.
5

Two months after the divorce, or on June 16, 1988, Orlando married respondent Merope in Calasiao,
Pangasinan.
6
Contending that said marriage was bigamous since Merope had a prior subsisting marriage
with Eusebio Bristol, petitioner filed a petition for declaration of nullity of marriage with damages in the
RTC of Dagupan City
7
against Orlando and Merope.
Respondents filed a motion to dismiss
8
on the ground of lack of cause of action as petitioner was
allegedly not a real party-in-interest, but it was denied.
9
Trial on the merits ensued.
On October 10, 2000, the RTC rendered judgment in favor of the petitioner, the dispositive portion of
which reads:
WHEREFORE, judgment is declared in favor of plaintiff Felicitas Amor Catalan and against defendants
Orlando B. Catalan and Merope E. Braganza, as follows:
1) The subsequent marriage of Merope Braganza with Orlando B. Catalan is declared null and
void ab initio;
80

2) The defendants are ordered jointly and severally to pay plaintiff by way of moral damages the
amount of P300,000.00, exemplary damages in the amount of P200,000.00 and attorneys fees
in the amount of P50,000.00, including costs of this suit; and
3) The donation in consideration of marriage is ordered revoked and the property donated is
ordered awarded to the heirs of Juliana Braganza.
Furnish copies of this Decision to Atty. Napoleon B. Arenas, Jr. and Atty. Nolan Evangelista.
SO ORDERED.
10

Respondents appealed the decision to the Court of Appeals, which reversed the decision of the RTC,
thus:
WHEREFORE, premises considered, we hereby GRANT the appeal and consequently REVERSE and SET
ASIDE the appealed decision. We likewise DISMISS Civil Case No. D-10636, RTC, Branch 44, Dagupan City.
No costs.
SO ORDERED.
11

After the motion for reconsideration was denied, petitioner filed the instant petition for review raising
the following issues:
I.
WHETHER PETITIONER HAS THE REQUIRED STANDING IN COURT TO QUESTION THE NULLITY OF THE
MARRIAGE BETWEEN RESPONDENTS;
II.
WHETHER THE FAILURE OF THE COURT OF APPEALS TO DECLARE THE QUESTIONED MARRIAGE VOID
CONSTITUTES REVERSIBLE ERROR.
12

Petitioner contends that the bigamous marriage of the respondents, which brought embarrassment to
her and her children, confers upon her an interest to seek judicial remedy to address her grievances and
to protect her family from further embarrassment and humiliation. She claims that the Court of Appeals
committed reversible error in not declaring the marriage void despite overwhelming evidence and the
state policy discouraging illegal and immoral marriages.
13

The main issue to be resolved is whether petitioner has the personality to file a petition for the
declaration of nullity of marriage of the respondents on the ground of bigamy. However, this issue may
not be resolved without first determining the corollary factual issues of whether the petitioner and
respondent Orlando had indeed become naturalized American citizens and whether they had actually
been judicially granted a divorce decree.
While it is a settled rule that the Court is not a trier of facts and does not normally undertake the re-
examination of the evidence presented by the contending parties during the trial of the case,
14
there
81

are, however, exceptions to this rule, like when the findings of facts of the RTC and the Court of Appeals
are conflicting, or when the findings are conclusions without citation of specific evidence on which they
are based.
15

Both the RTC and the Court of Appeals found that petitioner and respondent Orlando were naturalized
American citizens and that they obtained a divorce decree in April 1988. However, after a careful review
of the records, we note that other than the allegations in the complaint and the testimony during the
trial, the records are bereft of competent evidence to prove their naturalization and divorce.
The Court of Appeals therefore had no basis when it held:
In light of the allegations of Felicitas complaint and the documentary and testimonial evidence she
presented, we deem it undisputed that Orlando and Felicitas are American citizens and had this
citizenship status when they secured their divorce decree in April 1988. We are not therefore dealing in
this case with Filipino citizens whose marital status is governed by the Family Code and our Civil Code,
but with American citizens who secured their divorce in the U.S. and who are considered by their
national law to be free to contract another marriage. x x x
16

Further, the Court of Appeals mistakenly considered the failure of the petitioner to refute or contest the
allegation in respondents brief, that she and respondent Orlando were American citizens at the time
they secured their divorce in April 1988, as sufficient to establish the fact of naturalization and
divorce.
17
We note that it was the petitioner who alleged in her complaint that they acquired American
citizenship and that respondent Orlando obtained a judicial divorce decree.
18
It is settled rule that one
who alleges a fact has the burden of proving it and mere allegation is not evidence.
19

Divorce means the legal dissolution of a lawful union for a cause arising after marriage. But divorces are
of different types. The two basic ones are (1) absolute divorce or a vinculo matrimonii and (2) limited
divorce or a mensa et thoro. The first kind terminates the marriage, while the second suspends it and
leaves the bond in full force.
20
A divorce obtained abroad by an alien may be recognized in our
jurisdiction, provided such decree is valid according to the national law of the foreigner.
21
However,
before it can be recognized by our courts, the party pleading it must prove the divorce as a fact and
demonstrate its conformity to the foreign law allowing it, which must be proved considering that our
courts cannot take judicial notice of foreign laws.
22

Without the divorce decree and foreign law as part of the evidence, we cannot rule on the issue of
whether petitioner has the personality to file the petition for declaration of nullity of marriage. After all,
she may have the personality to file the petition if the divorce decree obtained was a limited divorce
or a mensa et thoro; or the foreign law may restrict remarriage even after the divorce decree becomes
absolute.
23
In such case, the RTC would be correct to declare the marriage of the respondents void for
being bigamous, there being already in evidence two existing marriage certificates, which were both
obtained in the Philippines, one in Mabini, Pangasinan dated December 21, 1959 between Eusebio
Bristol and respondent Merope,
24
and the other, in Calasiao, Pangasinan dated June 16, 1988 between
the respondents.
25

However, if there was indeed a divorce decree obtained and which, following the national law of
Orlando, does not restrict remarriage, the Court of Appeals would be correct in ruling that petitioner has
no legal personality to file a petition to declare the nullity of marriage, thus:
82

Freed from their existing marital bond, each of the former spouses no longer has any interest nor should
each have the personality to inquire into the marriage that the other might subsequently contract. x x x
Viewed from another perspective, Felicitas has no existing interest in Orlandos subsequent marriage
since the validity, as well as any defect or infirmity, of this subsequent marriage will not affect the
divorced status of Orlando and Felicitas. x x x
26

True, under the New Civil Code which is the law in force at the time the respondents were married, or
even in the Family Code, there is no specific provision as to who can file a petition to declare the nullity
of marriage; however, only a party who can demonstrate "proper interest" can file the same. A petition
to declare the nullity of marriage, like any other actions, must be prosecuted or defended in the name of
the real party in interest
27
and must be based on a cause of action.
28
Thus, in Nial v. Bayadog,
29
the
Court held that the children have the personality to file the petition to declare the nullity of the
marriage of their deceased father to their stepmother as it affects their successional rights.1awphi1.net
Significantly, Section 2(a) of The Rule on Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages, which took effect on March 15, 2003, now specifically provides:
SECTION 2. Petition for declaration of absolute nullity of void marriages.
(a) Who may file. A petition for declaration of absolute nullity of void marriage may be filed solely by
the husband or the wife.
x x x x
In fine, petitioners personality to file the petition to declare the nullity of marriage cannot be
ascertained because of the absence of the divorce decree and the foreign law allowing it. Hence, a
remand of the case to the trial court for reception of additional evidence is necessary to determine
whether respondent Orlando was granted a divorce decree and whether the foreign law which granted
the same allows or restricts remarriage. If it is proved that a valid divorce decree was obtained and the
same did not allow respondent Orlandos remarriage, then the trial court should declare respondents
marriage as bigamous and void ab initio but reduce the amount of moral damages from P300,000.00
to P50,000.00 and exemplary damages from P200,000.00 to P25,000.00. On the contrary, if it is proved
that a valid divorce decree was obtained which allowed Orlando to remarry, then the trial court must
dismiss the instant petition to declare nullity of marriage on the ground that petitioner Felicitas Amor-
Catalan lacks legal personality to file the same.
WHEREFORE, in view of the foregoing, let this case be REMANDED to the trial court for its proper
disposition. No costs.
SO ORDERED.

83

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 94053 March 17, 1993
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
GREGORIO NOLASCO, respondent.
The Solicitor General for plaintiff-appellee.
Warloo G. Cardenal for respondent.
R E S O L U T I O N

FELICIANO, J.:
On 5 August 1988, respondent Gregorio Nolasco filed before the Regional Trial Court of Antique, Branch
10, a petition for the declaration of presumptive death of his wife Janet Monica Parker, invoking Article
41 of the Family Code. The petition prayed that respondent's wife be declared presumptively dead or, in
the alternative, that the marriage be declared null and void.
1

The Republic of the Philippines opposed the petition through the Provincial Prosecutor of Antique who
had been deputized to assist the Solicitor-General in the instant case. The Republic argued, first, that
Nolasco did not possess a "well-founded belief that the absent spouse was already dead,"
2
and second,
Nolasco's attempt to have his marriage annulled in the same proceeding was a "cunning attempt" to
circumvent the law on marriage.
3

During trial, respondent Nolasco testified that he was a seaman and that he had first met Janet Monica
Parker, a British subject, in a bar in England during one of his ship's port calls. From that chance meeting
onwards, Janet Monica Parker lived with respondent Nolasco on his ship for six (6) months until they
returned to respondent's hometown of San Jose, Antique on 19 November 1980 after his seaman's
contract expired. On 15 January 1982, respondent married Janet Monica Parker in San Jose, Antique, in
Catholic rites officiated by Fr. Henry van Tilborg in the Cathedral of San Jose.
Respondent Nolasco further testified that after the marriage celebration, he obtained another
employment contract as a seaman and left his wife with his parents in San Jose, Antique. Sometime in
January 1983, while working overseas, respondent received a letter from his mother informing him that
Janet Monica had given birth to his son. The same letter informed him that Janet Monica had left
84

Antique. Respondent claimed he then immediately asked permission to leave his ship to return home.
He arrived in Antique in November 1983.
Respondent further testified that his efforts to look for her himself whenever his ship docked in England
proved fruitless. He also stated that all the letters he had sent to his missing spouse at No. 38 Ravena
Road, Allerton, Liverpool, England, the address of the bar where he and Janet Monica first met, were all
returned to him. He also claimed that he inquired from among friends but they too had no news of Janet
Monica.
On cross-examination, respondent stated that he had lived with and later married Janet Monica Parker
despite his lack of knowledge as to her family background. He insisted that his wife continued to refuse
to give him such information even after they were married. He also testified that he did not report the
matter of Janet Monica's disappearance to the Philippine government authorities.
Respondent Nolasco presented his mother, Alicia Nolasco, as his witness. She testified that her
daughter-in-law Janet Monica had expressed a desire to return to England even before she had given
birth to Gerry Nolasco on 7 December 1982. When asked why her daughter-in-law might have wished to
leave Antique, respondent's mother replied that Janet Monica never got used to the rural way of life in
San Jose, Antique. Alicia Nolasco also said that she had tried to dissuade Janet Monica from leaving as
she had given birth to her son just fifteen days before, but when she (Alicia) failed to do so, she gave
Janet Monica P22,000.00 for her expenses before she left on 22 December 1982 for England. She further
claimed that she had no information as to the missing person's present whereabouts.
The trial court granted Nolasco's petition in a Judgment dated 12 October 1988 the dispositive portion
of which reads:
Wherefore, under Article 41, paragraph 2 of the Family Code of the Philippines
(Executive Order No. 209, July 6, 1987, as amended by Executive Order No. 227, July 17,
1987) this Court hereby declares as presumptively dead Janet Monica Parker Nolasco,
without prejudice to her reappearance.
4

The Republic appealed to the Court of Appeals contending that the trial court erred in declaring Janet
Monica Parker presumptively dead because respondent Nolasco had failed to show that there existed a
well founded belief for such declaration.
The Court of Appeals affirmed the trial court's decision, holding that respondent had sufficiently
established a basis to form a belief that his absent spouse had already died.
The Republic, through the Solicitor-General, is now before this Court on a Petition for Review where the
following allegations are made:
1. The Court of Appeals erred in affirming the trial court's finding that there existed a
well-founded belief on the part of Nolasco that Janet Monica Parker was already dead;
and
85

2. The Court of Appeals erred in affirming the trial Court's declaration that the petition
was a proper case of the declaration of presumptive death under Article 41, Family
Code.
5

The issue before this Court, as formulated by petitioner is "[w]hether or not Nolasco has a well-founded
belief that his wife is already dead."
6

The present case was filed before the trial court pursuant to Article 41 of the Family Code which
provides that:
Art. 41. A marriage contracted by any person during the subsistence of a previous
marriage shall be null and void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four consecutive years and the spouse
present had a well-founded belief that the absent spouse was already dead. In case of
disappearance where there is danger of death under the circumstances set forth in the
provision of Article 391 of the Civil Code, an absence of only two years shall be
sufficient.
For the purpose of contracting the subsequent marriage under the preceding paragraph,
the spouse present must institute a summary proceeding as provided in this Code for
the declaration of presumptive death of the absentee, without prejudice to the effect of
reappearance of the absent spouse. (Emphasis supplied).
When Article 41 is compared with the old provision of the Civil Code, which it superseded,
7
the
following crucial differences emerge. Under Article 41, the time required for the presumption to arise
has been shortened to four (4) years; however, there is need for a judicial declaration of presumptive
death to enable the spouse present to remarry.
8
Also, Article 41 of the Family Code imposes a stricter
standard than the Civil Code: Article 83 of the Civil Code merely requires either that there be no news
that such absentee is still alive; or the absentee is generally considered to be dead and believed to be so
by the spouse present, or is presumed dead under Article 390 and 391 of the Civil Code.
9
The Family
Code, upon the other hand, prescribes as "well founded belief" that the absentee is already dead before
a petition for declaration of presumptive death can be granted.
As pointed out by the Solicitor-General, there are four (4) requisites for the declaration of presumptive
death under Article 41 of the Family Code:
1. That the absent spouse has been missing for four consecutive years, or two
consecutive years if the disappearance occurred where there is danger of death under
the circumstances laid down in Article 391, Civil Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief that the absentee is dead; and
4. That the present spouse files a summary proceeding for the declaration of
presumptive death of the absentee.
10

86

Respondent naturally asserts that he had complied with all these requirements.
11

Petitioner's argument, upon the other hand, boils down to this: that respondent failed to prove that he
had complied with the third requirement, i.e., the existence of a "well-founded belief" that the absent
spouse is already dead.
The Court believes that respondent Nolasco failed to conduct a search for his missing wife with such
diligence as to give rise to a "well-founded belief" that she is dead.
United States v. Biasbas,
12
is instructive as to degree of diligence required in searching for a missing
spouse. In that case, defendant Macario Biasbas was charged with the crime of bigamy. He set-up the
defense of a good faith belief that his first wife had already died. The Court held that defendant had not
exercised due diligence to ascertain the whereabouts of his first wife, noting that:
While the defendant testified that he had made inquiries concerning the whereabouts
of his wife, he fails to state of whom he made such inquiries. He did not even write to
the parents of his first wife, who lived in the Province of Pampanga, for the purpose of
securing information concerning her whereabouts. He admits that he had a suspicion
only that his first wife was dead. He admits that the only basis of his suspicion was the
fact that she had been absent. . . .
13

In the case at bar, the Court considers that the investigation allegedly conducted by respondent in his
attempt to ascertain Janet Monica Parker's whereabouts is too sketchy to form the basis of a reasonable
or well-founded belief that she was already dead. When he arrived in San Jose, Antique after learning of
Janet Monica's departure, instead of seeking the help of local authorities or of the British Embassy,
14
he
secured another seaman's contract and went to London, a vast city of many millions of inhabitants, to
look for her there.
Q After arriving here in San Jose, Antique, did you exert efforts to
inquire the whereabouts of your wife?
A Yes, Sir.
Court:
How did you do that?
A I secured another contract with the ship and we had a trip to London
and I went to London to look for her I could not find
her (sic).
15
(Emphasis supplied)
Respondent's testimony, however, showed that he confused London for Liverpool and this casts doubt
on his supposed efforts to locate his wife in England. The Court of Appeal's justification of the mistake,
to wit:
. . . Well, while the cognoscente (sic) would readily know the geographical difference
between London and Liverpool, for a humble seaman like Gregorio the two places could
87

mean one place in England, the port where his ship docked and where he found
Janet. Our own provincial folks, every time they leave home to visit relatives in Pasay
City, Kalookan City, or Paraaque, would announce to friends and relatives, "We're
going to Manila." This apparent error in naming of places of destination does not appear
to be fatal.
16

is not well taken. There is no analogy between Manila and its neighboring cities, on one hand, and
London and Liverpool, on the other, which, as pointed out by the Solicitor-General, are around three
hundred fifty (350) kilometers apart. We do not consider that walking into a major city like Liverpool or
London with a simple hope of somehow bumping into one particular person there which is in effect
what Nolasco says he did can be regarded as a reasonably diligent search.
The Court also views respondent's claim that Janet Monica declined to give any information as to her
personal background even after she had married respondent
17
too convenient an excuse to justify his
failure to locate her. The same can be said of the loss of the alleged letters respondent had sent to his
wife which respondent claims were all returned to him. Respondent said he had lost these returned
letters, under unspecified circumstances.
Neither can this Court give much credence to respondent's bare assertion that he had inquired from
their friends of her whereabouts, considering that respondent did not identify those friends in his
testimony. The Court of Appeals ruled that since the prosecutor failed to rebut this evidence during trial,
it is good evidence. But this kind of evidence cannot, by its nature, be rebutted. In any case, admissibility
is not synonymous with credibility.
18
As noted before, there are serious doubts to respondent's
credibility. Moreover, even if admitted as evidence, said testimony merely tended to show that the
missing spouse had chosen not to communicate with their common acquaintances, and not that she was
dead.
Respondent testified that immediately after receiving his mother's letter sometime in January 1983, he
cut short his employment contract to return to San Jose, Antique. However, he did not explain the delay
of nine (9) months from January 1983, when he allegedly asked leave from his captain, to November
1983 when be finally reached San Jose. Respondent, moreover, claimed he married Janet Monica Parker
without inquiring about her parents and their place of residence.
19
Also, respondent failed to explain
why he did not even try to get the help of the police or other authorities in London and Liverpool in his
effort to find his wife. The circumstances of Janet Monica's departure and respondent's subsequent
behavior make it very difficult to regard the claimed belief that Janet Monica was dead a well-founded
one.
In Goitia v. Campos-Rueda,
20
the Court stressed that:
. . . Marriage is an institution, the maintenance of which in its purity the public is deeply
interested. It is a relationship for life and the parties cannot terminate it at any shorter
period by virtue of any contract they make. . . . .
21
(Emphasis supplied)
By the same token, the spouses should not be allowed, by the simple expedient of agreeing that one of
them leave the conjugal abode and never to return again, to circumvent the policy of the laws on
marriage. The Court notes that respondent even tried to have his marriage annulled before the trial
court in the same proceeding.
88

In In Re Szatraw,
22
the Court warned against such collusion between the parties when they find it
impossible to dissolve the marital bonds through existing legal means.
While the Court understands the need of respondent's young son, Gerry Nolasco, for maternal care, still
the requirements of the law must prevail. Since respondent failed to satisfy the clear requirements of
the law, his petition for a judicial declaration of presumptive death must be denied. The law does not
view marriage like an ordinary contract. Article 1 of the Family Code emphasizes that.
. . . Marriage is a special contract of permanent union between a man and a
woman entered into in accordance with law for the establishment of conjugal and family
life. It is the foundation of the familyand an inviolable social institution whose nature,
consequences, and incidents are governed by law and not subject to stipulation, except
that marriage settlements may fix the property relations during the marriage within the
limits provided by this Code. (Emphasis supplied)
In Arroyo, Jr. v. Court of Appeals,
23
the Court stressed strongly the need to protect.
. . . the basic social institutions of marriage and the family in the preservation of which
the State bas the strongest interest; the public policy here involved is of the most
fundamental kind. In Article II, Section 12 of the Constitution there is set forth the
following basic state policy:
The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution. . . .
The same sentiment bas been expressed in the Family Code of the Philippines in Article
149:
The family, being the foundation of the nation, is a basic social
institution which public policy cherishes and protects. Consequently,
family relations are governed by law and no custom, practice or
agreement destructive of the family shall be recognized or given
effect.
24

In fine, respondent failed to establish that he had the well-founded belief required by law that his
absent wife was already dead that would sustain the issuance of a court order declaring Janet Monica
Parker presumptively dead.
WHEREFORE, the Decision of the Court of Appeals dated 23 February 1990, affirming the trial court's
decision declaring Janet Monica Parker presumptively dead is hereby REVERSED and both Decisions are
hereby NULLIFIED and SET ASIDE. Costs against respondent.
Bidin, Davide, Jr., Romero and Melo, JJ., concur.
Gutierrez, Jr. J., is on leave.

89

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-43905 May 30, 1983
SERAFIA G. TOLENTINO, petitioner,
vs.
HON. EDGARDO L. PARAS, MARIA CLEMENTE and THE LOCAL CIVIL REGISTRAR OF PAOMBONG,
BULACAN, respondents.
Amelita G. Tolentino for petitioner.
Hermin E. Arceo for Maria Clemente.
The Solicitor General for respondents.

MELENCIO-HERRERA, J.:
The reversal of respondent Court's Order, dismissing petitioner's suit for her "declaration ... as the lawful
surviving spouse of deceased Amado Tolentino and the correction of the death certificate of the same",
is sought in this Petition for Review on Certiorari.
The records disclose that Amado Tolentino had contracted a second marriage with private respondent
herein, Maria Clemente, at Paombong, Bulacan, on November 1, 1948 (Annex "C", Petition), while his
marriage with petitioner, Serafia G. Tolentino, celebrated on July 31, 1943, was still subsisting (Annex
"A", Petition).
Petitioner charged Amado with Bigamy in Criminal Case No. 2768 of the Court of First Instance of
Bulacan, Branch II, which Court, upon Amado's plea of guilty, sentenced him to suffer the corresponding
penalty. After Amado had served the prison sentence imposed on him, he continued to live with private
respondent until his death on July 25, 1974. His death certificate carried the entry "Name of Surviving
Spouse Maria Clemente."
In Special Proceedings No. 1587-M for Correction of Entry, petitioner sought to correct the name of the
surviving spouse in the death certificate from "Maria Clemente" to "Serafia G. Tolentino", her name. The
lower Court dismissed the petition "for lack of the proper requisites under the law" and indicated the
need for a more detailed proceeding,
Conformably thereto, petitioner filed the case below against private respondent and the Local Civil
Registrar of Paombong, Bulacan, for her declaration as the lawful surviving spouse, and the correction of
the death certificate of Amado. In an Order, dated October 21, 1976, respondent Court, upon private
respondent's instance, dismissed the case, stating:
90

The Motion to Dismiss filed by the defendants in this case, thru counsel Atty. Hernan E.
Arceo, for the reasons therein mentioned, is hereby GRANTED. Further: (1) the
correction of the entry in the Office of the Local Civil Registrar is not the proper remedy
because the issue involved is marital relationship; (2) the Court has not acquired proper
jurisdiction because as prescribed under Art. 108, read together with Art. 412 of the
Civil Code publication is needed in a case like this, and up to now, there has been no
such publication; and (3) in a sense, the subject matter of this case has been aptly
discussed in Special Proceeding No. 1587-M, which this Court has already dismissed, for
lack of the proper requisites under the law.
In view of the above dismissal, all other motions in this case are hereby considered
MOOT and ACADEMIC.
SO ORDERED.
1

Thus, petitioner's present recourse mainly challenging the grounds relied upon by respondent Court in
ordering dismissal.
We rule for petitioner.
First, for the remedy. Although petitioner's ultimate objective is the correction of entry contemplated in
Article 412 of the Civil Code and Rule 108 of the Rules of Court, she initially seeks a judicial declaration
that she is the lawful surviving spouse of the deceased, Amado, in order to lay the basis for the
correction of the entry in the death certificate of said deceased. The suit below is a proper remedy. It is
of an adversary character as contrasted to a mere summary proceeding. A claim of right is asserted
against one who has an interest in contesting it. Private respondent, as the individual most affected; is a
party defendant, and has appeared to contest the petition and defend her interests. The Local Civil
Registrar is also a party defendant. The publication required by the Court below pursuant to Rule 108 of
the Rules of Court is not absolutely necessary for no other parties are involved. After all, publication is
required to bar indifferently all who might be minded to make an objection of any sort against the right
sought to be established.
2
Besides, even assuming that this is a proceeding under Rule 108, it was the
Court that was caned upon to order the publication,
3
but it did not. in the ultimate analysis, Courts are
not concerned so much with the form of actions as with their substance.
4

Second, for the merits. Considering that Amado, upon his own plea, was convicted for Bigamy, that
sentence furnishes the necessary proof of the marital status of petitioner and the deceased. There is no
better proof of marriage than the admission by the accused of the existence of such marriage.
5
The
second marriage that he contracted with private respondent during the lifetime of his first spouse is null
and void from the beginning and of no force and effect.
6
No judicial decree is necessary to establish the
invalidity of a void marriage.
7
It can be safely concluded, then, without need of further proof nor
remand to the Court below, that private respondent is not the surviving spouse of the deceased Amado,
but petitioner. Rectification of the erroneous entry in the records of the Local Civil Registrar may,
therefore, be validly made.
Having arrived at the foregoing conclusion, the other issues raised need no longer be discussed.
91

In fine, since there is no question regarding the invalidity of Amado's second marriage with private
respondent and that the entry made in the corresponding local register is thereby rendered false, it may
be corrected.
8
While document such as death and birth certificates, are public and entries therein are
presumed to be correct, such presumption is merely disputable and will have to yield to more positive
evidence establishing their inaccuracy.
9

WHEREFORE, the Order, dated October 21, 1975, of respondent Court is hereby set aside and petitioner,
Serafia G. Tolentino, hereby declared the surviving spouse of the deceased Amado Tolentino. Let the
corresponding correction be made in the latter's death certificate in the records of the Local Civil
Registrar of Paombong, Bulacan.
No costs.
SOORDERED.
Teehankee, (Chairman), Plana, Vasquez and Gutierrez, Jr., JJ., concur.
Relova, J., is on leave.

92

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-53703 August 19, 1986
LILIA OLIVA WIEGEL, petitioner,
vs.
THE HONORABLE ALICIA V. SEMPIO-DIY (as presiding judge of the Juvenile and Domestic Relations
Court of Caloocan City) and KARL HEINZ WIEGEL, respondents.
Dapucanta, Dulay & Associates for petitioner.
Siguion Reyna, Montecillo and Ongsiako Law Office for private respondent.

PARAS, J.:
In an action (Family Case No. 483) filed before the erstwhile Juvenile and Domestic Relations Court of
Caloocan City, herein respondent Karl Heinz Wiegel (plaintiff therein) asked for the declaration of Nullity
of his marriage (celebrated on July, 1978 at the Holy Catholic Apostolic Christian Church Branch in
Makati, Metro Manila) with herein petitioner Lilia Oliva Wiegel (Lilia, for short, and defendant therein)
on the ground of Lilia's previous existing marriage to one Eduardo A. Maxion, the ceremony having been
performed on June 25, 1972 at our Lady of Lourdes Church in Quezon City. Lilia, while admitting the
existence of said prior subsisting marriage claimed that said marriage was null and void, she and the first
husband Eduardo A. Maxion having been allegedly forced to enter said marital union. In the pre-trial
that ensued, the issue agreed upon by both parties was the status of the first marriage (assuming the
presence of force exerted against both parties): was said prior marriage void or was it merely voidable?
Contesting the validity of the pre-trial order, Lilia asked the respondent court for an opportunity to
present evidence-
(1) that the first marriage was vitiated by force exercised upon both her and the first husband; and
(2) that the first husband was at the time of the marriage in 1972 already married to someone else.
Respondent judge ruled against the presentation of evidence because the existence of force exerted on
both parties of the first marriage had already been agreed upon. Hence, the present petition for
certiorari assailing the following Orders of therespondent Judge-
(1) the Order dated March 17, 1980 in which the parties were compelled to submit the case for
resolution based on "agreed facts;" and
(2) the Order dated April 14, 1980, denying petitioner's motion to allow her to present evidence in her
favor.
93

We find the petition devoid of merit.
There is no need for petitioner to prove that her first marriage was vitiated by force committed against
both parties because assuming this to be so, the marriage will not be void but merely viodable (Art. 85,
Civil Code), and therefore valid until annulled. Since no annulment has yet been made, it is clear that
when she married respondent she was still validly married to her first husband, consequently, her
marriage to respondent is VOID (Art. 80, Civil Code).
There is likewise no need of introducing evidence about the existing prior marriage of her first husband
at the time they married each other, for then such a marriage though void still needs according to this
Court a judicial declaration
1
of such fact and for all legal intents and purposes she would still be
regarded as a married woman at the time she contracted her marriage with respondent Karl Heinz
Wiegel); accordingly, the marriage of petitioner and respondent would be regarded VOID under the law.
WHEREFORE, this petition is hereby DISMISSED, for lack of merit, and the Orders complained of are
hereby AFFIRMED. Costs against petitioner.
SO ORDERED.
Feria (Chairman), Fernan Alampay and Gutierrez, Jr., JJ., concur.

94

epublic of the Philippines
SUPREME COURT
Manila
EN BANC

A.M. No. 2349 July 3, 1992
DOROTHY B. TERRE, complainant,
vs.
ATTY. JORDAN TERRE, respondent.

PER CURIAM:
In a sworn complaint filed with this Court on 24 December 1981, complainant Dorothy B. Terre charged
respondent Jordan Terre, a member of the Philippine Bar with "grossly immoral conduct," consisting of
contracting a second marriage and living with another woman other than complainant, while his prior
marriage with complainant remained subsisting.
The Court resolved to require respondent to answer the complaint.
1
Respondent successfully evaded
five (5) attempts to serve a copy of the Court's Resolution and of the complaint by moving from one
place to another, such that he could not be found nor reached in his alleged place of employment or
residence.
2
On 24 April 1985, that is after three (3) years and a half, with still no answer from the
respondent, the Court noted respondent's success in evading service of the complaint and the Court's
Resolution and thereupon resolved to "suspend respondent Atty. Jordan Terre from the practice of law
until after he appears and/or files his answer to the complaint against him" in the instant
case.
3

On 28 September 1985, respondent finally filed an Answer with a Motion to Set Aside and/or Lift
Suspension Order. In his Answer, Atty. Terre averred that he had contracted marriage with complainant
Dorothy Terre on 14 June 1977 upon her representation that she was single; that he subsequently
learned that Dorothy was married to a certain Merlito A. Bercenilla sometime in 1968; that when he
confronted Dorothy about her prior marriage, Dorothy drove him out of their conjugal residence; that
Dorothy had mockingly told him of her private meetings with Merlito A. Bercenilla and that the child she
was then carrying (i.e., Jason Terre) was the son of Bercenilla; that believing in good faith that his
marriage to complainant was null and void ab initio, he contracted marriage with Helina Malicdem at
Dasol, Pangasinan.
4

In her Reply, complainant Dorothy denied that Jason Terre was the child of Merlito A. Bercenilla and
insisted that Jason was the child of respondent Jordan Terre, as evidenced by Jason's Birth Certificate
and physical resemblance to respondent. Dorothy further explained that while she had given birth to
Jason Terre at the PAFGH registered as a dependent of Merlito Bercenilla, she had done so out of
extreme necessity and to avoid risk of death or injury to the fetus which happened to be in a difficult
95

breech position. According to Dorothy, she had then already been abandoned by respondent Jordan
Terre, leaving her penniless and without means to pay for the medical and hospital bills arising by
reason of her pregnancy.
The Court denied respondent's Motion to Set Aside or Lift the Suspension Order and instead referred; by
a Resolution dated 6 January 1986, the complaint to the Office of the Solicitor General for investigation,
report and recommendation.
5

Then Solicitor Pio C. Guerrero was appointed investigator by the Office of the Solicitor General. He set
the case for hearing on 7 July 1986 with notice to both parties. On 7 July 1986, complainant Dorothy
appeared and presented her evidence ex parte, since respondent did not so appear.
6
The Investigating
Solicitor scheduled and held another hearing on 19 August 1986, where he put clarificatory questions to
the complainant; respondent once again did not appear despite notice to do so. Complainant finally
offered her evidence and rested her case. The Solicitor set still another hearing for 2 October 1986,
notifying respondent to present his evidence with a warning that should he fail once more to appear,
the case would be deemed submitted for resolution. Respondent did not appear on 2 October 1986. The
Investigating Solicitor accordingly considered respondent to have waived his right to present evidence
and declared the case submitted for resolution. The parties were given time to submit their respective
memoranda. Complainant Dorothy did so on 8 December 1986. Respondent Terre did not file his
memorandum.
On 26 February 1990, the Office of the Solicitor General submitted its "Report and Recommendation" to
this Court. The Report summarized the testimony of the complainant in the following manner:
Complainant Dorothy Terre took the witness stand and testified substantially as follows:
she and respondent met for the first time in 1979 as fourth year high school classmates
in Cadiz City High School (tsn, July 7, 1986, p. 9); she was then married to Merlito
Bercenilla, while respondent was single (id.); respondent was aware of her marital
status (ibid, p. 14); it was then that respondent started courting her but nothing
happened of the courtship (ibid, p. 10); they [complainant and respondent] moved to
Manila were they respectively pursued their education, respondent as a law student at
the Lyceum University (tsn, July 7, 1986, p. 12, 15-16); respondent continued courting
her, this time with more persistence (ibid, p. 11); she decided nothing would come of it
since she was married but he [respondent] explained to her that their marriage was
void ab initio since she and her first husband were first cousins (ibid, p. 12); convinced
by his explanation and having secured favorable advice from her mother and
ex-in-laws, she agreed to marry him [respondent] (ibid, 12-13, 16); in their marriage
license, despite her [complainant's] objection, he [respondent] wrote "single" as her
status explaining that since her marriage was void ab initio, there was no need to go to
court to declare it as such (ibid, 14-15); they were married before Judge Priscilla Mijares
of the City Court of Manila on June 14, 1977 (Exhibit A; tsn, July 7, 1986, pp. 16-17);
Jason Terre was born of their union on June 25, 1981 (Exhibit B, tsn, July 7, 1986, p. 18);
all through their married state up to the time he [respondent] disappeared in 1981,
complainant supported respondent, in addition to the allowance the latter was getting
from his parents (ibid, pp. 19-20); she was unaware of the reason for his disappearance
until she found out later that respondent married a certain Vilma [sic] Malicdem (Exhibit
C, tsn, July 7, 1986, pp. 21-22); she then filed a case for abandonment of minor with the
City Fiscal of Pasay City (ibid, p. 23) which was subsequently filed before Branch II of the
96

City Court of Pasay City as Criminal Case No. 816159 (Exhibit D; tsn, July 7, 1986, p. 24);
she likewise filed a case for bigamy against respondent and Helina Malicdem with the
office of the Provincial Fiscal of Pangasinan, where a prima facie case was found to exist
(Exhibit E; tsn, July 7, pp. 25-26); additionally, complainant filed an administrative case
against respondent with the Commission on Audit where he was employed, which case
however was considered closed for being moot and academic when respondent was
considered automatically separated from the service for having gone on absence
without official leave (Exhibit F; tsn, July 7, 1986, pp. 28-29).
7

There is no dispute over the fact that complainant Dorothy Terre and respondent Jordan Terre
contracted marriage on 14 July 1977 before Judge Priscilla Mijares. There is further no dispute over the
fact that on 3 May 1981, respondent Jordan Terre married Helina Malicdem in Dasol, Pangasinan. When
the second marriage was entered into, respondent's prior marriage with complainant was subsisting, no
judicial action having been initiated or any judicial declaration obtained as to the nullity of such prior
marriage of respondent with complainant.
Respondent Jordan Terre sought to defend himself by claiming that he had believed in good faith that
his prior marriage with complainant Dorothy Terre was null and void ab initio and that no action for a
judicial declaration of nullity was necessary.
The Court considers this claim on the part of respondent Jordan Terre as a spurious defense. In the first
place, respondent has not rebutted complainant's evidence as to the basic facts which underscores the
bad faith of respondent Terre. In the second place, that pretended defense is the same argument by
which he had inveigled complainant into believing that her prior marriage to Merlito A. Bercenilla being
incestuous and void ab initio (Dorothy and Merlito being allegedly first cousins to each other), she was
free to contract a second marriage with the respondent. Respondent Jordan Terre, being a lawyer, knew
or should have known that such an argument ran counter to the prevailing case law of this Court which
holds that for purposes of determining whether a person is legally free to contract a second marriage, a
judicial declaration that the first marriage was null and void ab initio is essential. 8 Even if we were to
assume, arguendo merely, that Jordan Terre held that mistaken belief in good faith, the same result will
follow. For if we are to hold Jordan Terre to his own argument, his first marriage to complainant Dorothy
Terre must be deemed valid, with the result that his second marriage to Helina Malicdem must be
regarded as bigamous and criminal in character.
That the moral character of respondent Jordan Terre was deeply flawed is shown by other
circumstances. As noted, he convinced the complainant that her prior marriage to Bercenilla was null
and void ab initio, that she was still legally single and free to marry him. When complainant and
respondent had contracted their marriage, respondent went through law school while being supported
by complainant, with some assistance from respondent's parents. After respondent had finished his law
course and gotten complainant pregnant, respondent abandoned the complainant without support and
without the wherewithal for delivering his own child safely in a hospital.
Thus, we agree with the Solicitor General that respondent Jordan Terre, by his actions, "eloquently
displayed, not only his unfitness to remain as a member of the Bar, but likewise his inadequacy to
uphold the purpose and responsibility of his gender" because marriage is a basic social institution.
9

In Pomperada v. Jochico,
10
the Court, in rejecting a petition to be allowed to take the oath as a member
of the Bar and to sign the Roll of Attorneys, said through Mme. Justice Melencio-Herrera:
97

It is evident that respondent fails to meet the standard of moral fitness for membership
in the legal profession. Whether the marriage was a joke as respondent claims, or a trick
played on her as claimed by complainant, it does not speak well of respondent's moral
values. Respondent had made a mockery of marriage, a basic social institution which
public policy cherishes and protects (Article 216, Civil Code).
11

In Bolivar v. Simbol,
12
the Court found the respondent there guilty of "grossly immoral conduct"
because he made a dupe of complainant, living on her bounty and allowing her to spend for his
schooling and other personal necessities while dangling before her the mirage of a marriage, marrying
another girl as soon as he had finished his studies, keeping his marriage a secret while continuing to
demand money from complainant. . . . ." The Court held such acts "indicative of a character not worthy
of a member of the Bar."
13

We believe and so hold that the conduct of respondent Jordan Terre in inveigling complainant Dorothy
Terre to contract a second marriage with him; in abandoning complainant Dorothy Terre after she had
cared for him and supported him through law school, leaving her without means for the safe delivery of
his own child; in contracting a second marriage with Helina Malicdem while his first marriage with
complainant Dorothy Terre was subsisting, constituted "grossly immoral conduct" under Section 27 of
Rule 138 of the Rules of Court, affording more than sufficient basis for disbarment of respondent Jordan
Terre. He was unworthy of admission to the Bar in the first place. The Court will correct this error
forthwith.
WHEREFORE, the Court Resolved to DISBAR respondent Jordan Terre and to STRIKE OUT his name from
the Roll of Attorneys. A copy of this decision shall be spread on the personal record of respondent
Jordan Terre in the Bar Confidant's Office. A copy of this resolution shall also be furnished to the
Integrated Bar of the Philippines and shall be circularized to all the courts of the land.
SO ORDERED.
Narvasa, C.J., Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado,
Davide, Jr., Romero, Nocon and Bellosillo, JJ., concur.

98

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 109454 June 14, 1994
JOSE C. SERMONIA, petitioner,
vs.
HON. COURT OF APPEALS, Eleventh Division, HON. DEOGRACIAS FELIZARDO, Presiding Judge, Regional
Trial Court of Pasig, Br. 151, and JOSEPH SINSAY, respondents.
Quasha, Asperilla, Ancheta, Pea and Nolasco for petitioner.
Ponciano L. Escuadra for private respondent.

BELLOSILLO, J.:
Bigamy is an illegal marriage committed by contracting a second or subsequent marriage before the first
marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead
by means of a judgment rendered in the proper proceedings.
1
Bigamy carries with it the imposable
penalty of prision mayor. Being punishable by an afflictive penalty, this crime prescribes in fifteen (15)
years.
2
The fifteen-year prescriptive period commences to run from the day on which the crime is
discovered by the offended party, the authorities, or their agents . . .
3

That petitioner contracted a bigamous marriage seems impliedly admitted.
4
At least, it is not expressly
denied. Thus the only issue for resolution is whether his prosecution for bigamy is already time-barred,
which hinges on whether its discovery is deemed to have taken place from the time the offended party
actually knew of the second marriage or from the time the document evidencing the subsequent
marriage was registered with the Civil Registry consistent with the rule on constructive notice.
The antecedents: In an information filed on 26 May 1992, petitioner Jose C. Sermonia was charged with
bigamy before the Regional Trial Court of Pasig, Br. 151, for contracting marriage with Ma. Lourdes
Unson on 15 February 1975 while his prior marriage to Virginia C. Nievera remained valid and
subsisting.
5

Petitioner moved to quash the information on the ground that his criminal liability for bigamy has been
extinguished by prescription.
In the order of 1 October 1992, respondent judge denied the motion to quash. On 27 October 1992, he
likewise denied the motion to reconsider his order of denial.
99

Petitioner challenged the above orders before the Court of Appeals through a petition for certiorari and
prohibition. In the assailed decision of
21 January 1993, his petition was dismissed for lack of merit.
6

In this recourse, petitioner contends that his criminal liability for bigamy has been obliterated by
prescription. He avers that since the second marriage contract was duly registered with the Office of the
Civil Registrar in 1975,
7
such fact of registration makes it a matter of public record and thus constitutes
notice to the whole world. The offended party therefore is considered to have had constructive notice
of the subsequent marriage as of 1975; hence, prescription commenced to run on the day the marriage
contract was registered. For this reason, the corresponding information for bigamy should have been
filed on or before 1990 and not only in 1992.
Petitioner likewise takes issue with the "alleged concealment of the bigamous marriage" as declared by
the appellate court, insisting that the second marriage was publicly held at Our Lady of Nativity Church
in Marikina on
15 February 1975, and adding for good measure that from the moment of registration the marriage
contract was open to inspection by any interested person.
On the other hand, the prosecution maintains that the prescriptive period does not begin from the
commission of the crime but from the time of discovery by complainant which was in July 1991.
While we concede the point that the rule on constructive notice in civil cases may be applied in criminal
actions if the factual and legal circumstances so warrant,
8
we agree with the view expounded by the
Court of Appeals that it cannot apply in the crime of bigamy notwithstanding the possibility of its being
more favorable to the accused. The appellate court succinctly explains
Argued by the petitioner is that the principle of constructive notice should be applied in
the case at bar, principally citing in support of his stand, the cases of People
v. Reyes (175 SCRA 597); andPeople v. Dinsay (40 SCRA 50).
This Court is of the view that the principle of constructive notice should not be applied
in regard to the crime of bigamy as judicial notice may be taken of the fact that a
bigamous marriage is generally entered into by the offender in secrecy from the spouse
of the previous subsisting marriage. Also, a bigamous marriage is generally entered into
in a place where the offender is not known to be still a married person, in order to
conceal his legal impediment to contract another marriage.
In the case of real property, the registration of any transaction involving any right or
interest therein is made in the Register of Deeds of the place where the said property is
located. Verification in the office of the Register of Deeds concerned of the transactions
involving the said property can easily be made by any interested party. In the case of a
bigamous marriage, verification by the offended person or the authorities of the same
would indeed be quite difficult as such a marriage may be entered into in a place where
the offender is not known to be still a married person.
100

Be it noted that in the criminal cases cited by the petitioner wherein constructive notice
was applied, involved therein were land or property disputes and certainly, marriage is
not property.
The non-application to the crime of bigamy of the principle of constructive notice is not
contrary to the well entrenched policy that penal laws should be construed liberally in
favor of the accused. To compute the prescriptive period for the offense of bigamy from
registration thereof would amount to almost absolving the offenders thereof for liability
therefor. While the celebration of the bigamous marriage may be said to be open and
made of public record by its registration, the offender however is not truthful as he
conceals from the officiating authority and those concerned the existence of his
previous subsisting marriage. He does not reveal to them that he is still a married
person. He likewise conceals from his legitimate spouse his bigamous marriage. And for
these, he contracts the bigamous marriage in a place where he is not known to be still a
married person. And such a place may be anywhere, under which circumstance, the
discovery of the bigamous marriage is rendered quite difficult and would take time. It is
therefore reasonable that the prescriptive period for the crime of bigamy should be
counted only from the day on which the said crime was discovered by the offended
party, the authorities or their agency (sic).
Considering such concealment of the bigamous marriage by the offender, if the
prescriptive period for the offense of bigamy were to be counted from the date of
registration thereof, the prosecution of the violators of the said offense would almost
be impossible. The interpretation urged by the petitioner would encourage fearless
violations of a social institution cherished and protected by law.
9

To this we may also add that the rule on constructive notice will make
de rigueur the routinary inspection or verification of the marriages listed in the National Census Office
and in various local civil registries all over the country to make certain that no second or even third
marriage has been contracted without the knowledge of the legitimate spouse. This is too formidable a
task to even contemplate.
More importantly, while Sec. 52 of P.D. 1529 (Property Registration Decree) provides for constructive
notice to all persons of every conveyance, mortgage, lease, lien, attachment, order, judgment,
instrument or entry affecting registered land filed or entered in the office of the Register of Deeds for
the province or city where the land to which it relates lies from the time of such registering, filing or
entering, there is no counterpart provision either in Act
No. 3753 (Act to Establish a Civil Register) or in Arts. 407 to 413 of the Civil Code, which leads us to the
conclusion that there is no legal basis for applying the constructive notice rule to the documents
registered in the Civil Register.
Finally, petitioner would want us to believe that there was no concealment at all because his marriage
contract with Ms. Unson was recorded in the Civil Registry which is open to all and sundry for
inspection. We cannot go along with his argument because why did he indicate in the marriage contract
that he was "single" thus obviously hiding his true status as a married man? Or for that matter, why did
he not simply tell his first wife about the subsequent marriage in Marikina so that everything would be
out in the open. The answer is obvious: He knew that no priest or minister would knowingly perform or
authorize a bigamous marriage as this would subject him to punishment under the Marriage
101

Law.
10
Obviously, petitioner had no intention of revealing his duplicity to his first spouse and gambled
instead on the probability that she or any third party would ever go to the local civil registrar to inquire.
In the meantime, through the simple expedience of having the second marriage recorded in the local
civil registry, he has set into motion the running of the fifteen-year prescriptive period against the
unwary and the unsuspecting victim of his philandering.
Were we to put our imprimatur to the theory advanced by petitioner, in all likelihood we would be
playing right into the hands of philanderers. For we would be equating the contract of marriage with
ordinary deeds of conveyance and other similar documents without due regard for the stability of
marriage as an inviolable social institution, the preservation of which is a primary concern of our society.
WHEREFORE, finding no reversible error in the questioned decision of the Court of Appeals, the same is
AFFIRMED.
SO ORDERED.
Cruz, Davide, Jr., and Quiason, JJ., concur.
Kapunan, J., took no part.

102

SECOND DIVISION
[G.R. No. 145226. February 06, 2004]
LUCIO MORIGO y CACHO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
D E C I S I O N
QUISUMBING, J.:
This petition for review on certiorari seeks to reverse the decision
[1]
dated October 21, 1999 of the
Court of Appeals in CA-G.R. CR No. 20700, which affirmed the judgment
[2]
dated August 5, 1996 of the
Regional Trial Court (RTC) of Bohol, Branch 4, in Criminal Case No. 8688. The trial court found herein
petitioner Lucio Morigo y Cacho guilty beyond reasonable doubt of bigamy and sentenced him to a
prison term of seven (7) months of prision correccional as minimum to six (6) years and one (1) day
of prision mayor as maximum. Also assailed in this petition is the resolution
[3]
of the appellate court,
dated September 25, 2000, denying Morigos motion for reconsideration.
The facts of this case, as found by the court a quo, are as follows:
Appellant Lucio Morigo and Lucia Barrete were boardmates at the house of Catalina Tortor at Tagbilaran
City, Province of Bohol, for a period of four (4) years (from 1974-1978).
After school year 1977-78, Lucio Morigo and Lucia Barrete lost contact with each other.
In 1984, Lucio Morigo was surprised to receive a card from Lucia Barrete from Singapore. The former
replied and after an exchange of letters, they became sweethearts.
In 1986, Lucia returned to the Philippines but left again for Canada to work there. While in Canada, they
maintained constant communication.
In 1990, Lucia came back to the Philippines and proposed to petition appellant to join her in Canada.
Both agreed to get married, thus they were married on August 30, 1990 at the Iglesia de Filipina
Nacional at Catagdaan, Pilar, Bohol.
On September 8, 1990, Lucia reported back to her work in Canada leaving appellant Lucio behind.
On August 19, 1991, Lucia filed with the Ontario Court (General Division) a petition for divorce against
appellant which was granted by the court on January 17, 1992 and to take effect on February 17, 1992.
On October 4, 1992, appellant Lucio Morigo married Maria Jececha Lumbago
[4]
at the Virgen sa
Barangay Parish, Tagbilaran City, Bohol.
On September 21, 1993, accused filed a complaint for judicial declaration of nullity of marriage in the
Regional Trial Court of Bohol, docketed as Civil Case No. 6020. The complaint seek (sic) among others,
103

the declaration of nullity of accuseds marriage with Lucia, on the ground that no marriage ceremony
actually took place.
On October 19, 1993, appellant was charged with Bigamy in an Information
[5]
filed by the City
Prosecutor of Tagbilaran [City], with the Regional Trial Court of Bohol.
[6]

The petitioner moved for suspension of the arraignment on the ground that the civil case for
judicial nullification of his marriage with Lucia posed a prejudicial question in the bigamy case. His
motion was granted, but subsequently denied upon motion for reconsideration by the prosecution.
When arraigned in the bigamy case, which was docketed as Criminal Case No. 8688, herein petitioner
pleaded not guilty to the charge. Trial thereafter ensued.
On August 5, 1996, the RTC of Bohol handed down its judgment in Criminal Case No. 8688, as
follows:
WHEREFORE, foregoing premises considered, the Court finds accused Lucio Morigo y Cacho guilty
beyond reasonable doubt of the crime of Bigamy and sentences him to suffer the penalty of
imprisonment ranging from Seven (7) Months of Prision Correccional as minimum to Six (6) Years and
One (1) Day of Prision Mayor as maximum.
SO ORDERED.
[7]

In convicting herein petitioner, the trial court discounted petitioners claim that his first marriage to
Lucia was null and void ab initio. Following Domingo v. Court of Appeals,
[8]
the trial court ruled that
want of a valid marriage ceremony is not a defense in a charge of bigamy. The parties to a marriage
should not be allowed to assume that their marriage is void even if such be the fact but must first secure
a judicial declaration of the nullity of their marriage before they can be allowed to marry again.
Anent the Canadian divorce obtained by Lucia, the trial court cited Ramirez v. Gmur,
[9]
which held
that the court of a country in which neither of the spouses is domiciled and in which one or both
spouses may resort merely for the purpose of obtaining a divorce, has no jurisdiction to determine the
matrimonial status of the parties. As such, a divorce granted by said court is not entitled to recognition
anywhere. Debunking Lucios defense of good faith in contracting the second marriage, the trial court
stressed that following People v. Bitdu,
[10]
everyone is presumed to know the law, and the fact that one
does not know that his act constitutes a violation of the law does not exempt him from the
consequences thereof.
Seasonably, petitioner filed an appeal with the Court of Appeals, docketed as CA-G.R. CR No. 20700.
Meanwhile, on October 23, 1997, or while CA-G.R. CR No. 20700 was pending before the appellate
court, the trial court rendered a decision in Civil Case No. 6020 declaring the marriage between Lucio
and Lucia void ab initio since no marriage ceremony actually took place. No appeal was taken from this
decision, which then became final and executory.
On October 21, 1999, the appellate court decided CA-G.R. CR No. 20700 as follows:
WHEREFORE, finding no error in the appealed decision, the same is hereby AFFIRMED in toto.
SO ORDERED.
[11]

104

In affirming the assailed judgment of conviction, the appellate court stressed that the subsequent
declaration of nullity of Lucios marriage to Lucia in Civil Case No. 6020 could not acquit Lucio. The
reason is that what is sought to be punished by Article 349
[12]
of the Revised Penal Code is the act of
contracting a second marriage before the first marriage had been dissolved. Hence, the CA held, the fact
that the first marriage was void from the beginning is not a valid defense in a bigamy case.
The Court of Appeals also pointed out that the divorce decree obtained by Lucia from the Canadian
court could not be accorded validity in the Philippines, pursuant to Article 15
[13]
of the Civil Code and
given the fact that it is contrary to public policy in this jurisdiction. Under Article 17
[14]
of the Civil Code, a
declaration of public policy cannot be rendered ineffectual by a judgment promulgated in a foreign
jurisdiction.
Petitioner moved for reconsideration of the appellate courts decision, contending that the doctrine
in Mendiola v. People,
[15]
allows mistake upon a difficult question of law (such as the effect of a foreign
divorce decree) to be a basis for good faith.
On September 25, 2000, the appellate court denied the motion for lack of merit.
[16]
However, the
denial was by a split vote. The ponente of the appellate courts original decision in CA-G.R. CR No. 20700,
Justice Eugenio S. Labitoria, joined in the opinion prepared by Justice Bernardo P. Abesamis. The dissent
observed that as the first marriage was validly declared voidab initio, then there was no first marriage to
speak of. Since the date of the nullity retroacts to the date of the first marriage and since herein
petitioner was, in the eyes of the law, never married, he cannot be convicted beyond reasonable doubt
of bigamy.
The present petition raises the following issues for our resolution:
A.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPLY THE RULE THAT IN CRIMES
PENALIZED UNDER THE REVISED PENAL CODE, CRIMINAL INTENT IS AN INDISPENSABLE REQUISITE.
COROLLARILY, WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPRECIATE [THE]
PETITIONERS LACK OF CRIMINAL INTENT WHEN HE CONTRACTED THE SECOND MARRIAGE.
B.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN HOLDING THAT THE RULING IN PEOPLE VS. BITDU
(58 PHIL. 817) IS APPLICABLE TO THE CASE AT BAR.
C.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO APPLY THE RULE THAT EACH AND
EVERY CIRCUMSTANCE FAVORING THE INNOCENCE OF THE ACCUSED MUST BE TAKEN INTO
ACCOUNT.
[17]

105

To our mind, the primordial issue should be whether or not petitioner committed bigamy and if so,
whether his defense of good faith is valid.
The petitioner submits that he should not be faulted for relying in good faith upon the divorce
decree of the Ontario court. He highlights the fact that he contracted the second marriage openly and
publicly, which a person intent upon bigamy would not be doing. The petitioner further argues that his
lack of criminal intent is material to a conviction or acquittal in the instant case. The crime of bigamy,
just like other felonies punished under the Revised Penal Code, is mala in se, and hence, good faith and
lack of criminal intent are allowed as a complete defense. He stresses that there is a difference between
the intent to commit the crime and the intent to perpetrate the act. Hence, it does not necessarily
follow that his intention to contract a second marriage is tantamount to an intent to commit bigamy.
For the respondent, the Office of the Solicitor General (OSG) submits that good faith in the instant
case is a convenient but flimsy excuse. The Solicitor General relies upon our ruling inMarbella-Bobis v.
Bobis,
[18]
which held that bigamy can be successfully prosecuted provided all the elements concur,
stressing that under Article 40
[19]
of the Family Code, a judicial declaration of nullity is a must before a
party may re-marry. Whether or not the petitioner was aware of said Article 40 is of no account as
everyone is presumed to know the law. The OSG counters that petitioners contention that he was in
good faith because he relied on the divorce decree of the Ontario court is negated by his act of filing
Civil Case No. 6020, seeking a judicial declaration of nullity of his marriage to Lucia.
Before we delve into petitioners defense of good faith and lack of criminal intent, we must first
determine whether all the elements of bigamy are present in this case. In Marbella-Bobis v. Bobis,
[20]
we
laid down the elements of bigamy thus:
(1) the offender has been legally married;
(2) the first marriage has not been legally dissolved, or in case his or her spouse is absent, the
absent spouse has not been judicially declared presumptively dead;
(3) he contracts a subsequent marriage; and
(4) the subsequent marriage would have been valid had it not been for the existence of the first.
Applying the foregoing test to the instant case, we note that during the pendency of CA-G.R. CR No.
20700, the RTC of Bohol Branch 1, handed down the following decision in Civil Case No. 6020, to wit:
WHEREFORE, premises considered, judgment is hereby rendered decreeing the annulment of the
marriage entered into by petitioner Lucio Morigo and Lucia Barrete on August 23, 1990 in Pilar, Bohol
and further directing the Local Civil Registrar of Pilar, Bohol to effect the cancellation of the marriage
contract.
SO ORDERED.
[21]

The trial court found that there was no actual marriage ceremony performed between Lucio and
Lucia by a solemnizing officer. Instead, what transpired was a mere signing of the marriage contract by
the two, without the presence of a solemnizing officer. The trial court thus held that the marriage is
void ab initio, in accordance with Articles 3
[22]
and 4
[23]
of the Family Code. As the dissenting opinion in
CA-G.R. CR No. 20700, correctly puts it, This simply means that there was no marriage to begin with;
and that such declaration of nullity retroacts to the date of the first marriage. In other words, for all
intents and purposes, reckoned from the date of the declaration of the first marriage as void ab initio to
106

the date of the celebration of the first marriage, the accused was, under the eyes of the law, never
married.
[24]
The records show that no appeal was taken from the decision of the trial court in Civil Case
No. 6020, hence, the decision had long become final and executory.
The first element of bigamy as a crime requires that the accused must have been legally married.
But in this case, legally speaking, the petitioner was never married to Lucia Barrete. Thus, there is no
first marriage to speak of. Under the principle of retroactivity of a marriage being declared void ab
initio, the two were never married from the beginning. The contract of marriage is null; it bears no
legal effect. Taking this argument to its logical conclusion, for legal purposes, petitioner was not
married to Lucia at the time he contracted the marriage with Maria Jececha. The existence and the
validity of the first marriage being an essential element of the crime of bigamy, it is but logical that a
conviction for said offense cannot be sustained where there is no first marriage to speak of. The
petitioner, must, perforce be acquitted of the instant charge.
The present case is analogous to, but must be distinguished from Mercado v. Tan.
[25]
In the latter
case, the judicial declaration of nullity of the first marriage was likewise obtained afterthe second
marriage was already celebrated. We held therein that:
A judicial declaration of nullity of a previous marriage is necessary before a subsequent one can be
legally contracted. One who enters into a subsequent marriage without first obtaining such judicial
declaration is guilty of bigamy. This principle applies even if the earlier union is characterized by statutes
as void.
[26]

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

107

THIRD DIVISION
G.R. No. 181089 : October 22, 2012
MERLINDA CIPRIANO MONTAS, Complainant, v. LOURDES TAJOLOSA CIPRIANO, Respondent.
D E C I S I O N
PERALTA, J.:
For our resolution is a petition for review on certiorari which seeks to annul the Order
1
rll dated
September 24, 2007 of the Regional Trial Court (RTC) of San Pedro, Laguna, Branch 31, issued in Criminal
Case No. 4990-SPL which dismissed the lnformation for Bigamy filed against respondent Lourdes
Tajolosa Cipriano. Also assailed is the RTC Resolution
2
rll dated January 2, 2008 denying the motion
for reconsideration.
On April 8, 1976, respondent married Socrates Flores (Socrates) in Lezo, Aklan.
3
rll On January 24,
1983, during the subsistence of the said marriage, respondent married Silverio V. Cipriano (Silverio) in
San Pedro, Laguna.
4
rll In 2001, respondent filed with the RTC of Muntinlupa, Branch
256, a Petition for the Annulment of her marriage with Socrates on the ground of the latters
psychological incapacity as defined under Article 36 of the Family Code, which was docketed as Civil
Case No. 01-204. On July 18, 2003, the RTC of Muntinlupa, Branch 256, rendered an Amended
Decision
5
rll declaring the marriage of respondent with Socrates null and void. Said decision became
final and executory on October 13, 2003.
6
rll
On May 14, 2004, petitioner Merlinda Cipriano Montaz, Silverios daughter from the first marriage, filed
with the Municipal Trial Court of San Pedro, Laguna, a Complaint
7
rll for Bigamy against respondent,
which was docketed as Criminal Case No. 41972. Attached to the complaint was an
Affidavit
8
rll (Malayang Sinumpaang Salaysay) dated August 23, 2004, thumb-marked and signed by
Silverio,
9
rll which alleged, among others, that respondent failed to reveal to Silverio that she was still
married to Socrates. On November 17, 2004, an Information
10
rll for Bigamy was filed against
respondent with the RTC of San Pedro, Laguna, Branch 31. The case was docketed as Criminal Case No.
4990-SPL. The Information reads:chanroblesvirtuallawlibrary
That on or about January 24, 1983, in the Municipality of San Pedro, Province of Laguna, Philippines, and
within the jurisdiction of this Honorable Court, the said accused did then and there willfully, unlawfully
and feloniously contract a second or subsequent marriage with one SILVERIO CIPRIANO VINALON while
her first marriage with SOCRATES FLORES has not been judicially dissolved by proper judicial
authorities.
11
rll
On July 24, 2007 and before her arraignment, respondent, through counsel, filed a Motion to Quash
Information (and Dismissal of the Criminal Complaint)
12
rll alleging that her marriage with Socrates
had already been declared void ab initio in 2003, thus, there was no more marriage to speak of prior to
her marriage to Silverio on January 24, 1983; that the basic element of the crime of bigamy, i.e., two
valid marriages, is therefore wanting. She also claimed that since the second marriage was held in 1983,
the crime of bigamy had already prescribed. The prosecution filed its Comment
13
rll arguing that the
108

crime of bigamy had already been consummated when respondent filed her petition for declaration of
nullity; that the law punishes the act of contracting a second marriage which appears to be valid, while
the first marriage is still subsisting and has not yet been annulled or declared void by the court.
In its Order
14
rll dated August 3, 2007, the RTC denied the motion. It found respondent's argument
that with the declaration of nullity of her first marriage, there was no more first marriage to speak of
and thus the element of two valid marriages in bigamy was absent, to have been laid to rest by our
ruling in Mercado v. Tan
15
rll where we held:chanroblesvirtuallawlibrary
In the instant case, petitioner contracted a second marriage although there was yet no judicial
declaration of nullity of his first marriage. In fact, he instituted the Petition to have the first marriage
declared void only after complainant had filed a letter-complaint charging him with bigamy. For
contracting a second marriage while the first is still subsisting, he committed the acts punishable under
Article 349 of the Revised Penal Code.
That he subsequently obtained a judicial declaration of the nullity of the first marriage was immaterial.
To repeat, the crime had already been consummated by then. x x x
16
rll
As to respondent's claim that the action had already prescribed, the RTC found that while the second
marriage indeed took place in 1983, or more than the 15-year prescriptive period for the crime of
bigamy, the commission of the crime was only discovered on November 17, 2004, which should be the
reckoning period, hence, prescription has not yet set in.
Respondent filed a Motion for Reconsideration
17
rll claiming that the Mercado ruling was not
applicable, since respondent contracted her first marriage in 1976, i.e., before the Family Code; that the
petition for annulment was granted and became final before the criminal complaint for bigamy was
filed; and, that Article 40 of the Family Code cannot be given any retroactive effect because this will
impair her right to remarry without need of securing a declaration of nullity of a completely void prior
marriage.
On September 24, 2007, the RTC issued its assailed Order,
18
rll the dispositive portion of which
reads:chanroblesvirtuallawlibrary
Wherefore, the Order of August 3, 2007 is reconsidered and set aside. Let a new one be entered
quashing the information. Accordingly, let the instant case be DISMISSED.rllbrr
SO ORDERED.
In so ruling, the RTC said that at the time the accused had contracted a second marriage on January 24,
1983, i.e., before the effectivity of the Family Code, the existing law did not require a judicial declaration
of absolute nullity as a condition precedent to contracting a subsequent marriage; that jurisprudence
before the Family Code was ambivalent on the issue of the need of prior judicial declaration of absolute
nullity of the first marriage. The RTC found that both marriages of respondent took place before the
effectivity of the Family Code, thus, considering the unsettled state of jurisprudence on the need for a
prior declaration of absolute nullity of marriage before commencing a second marriage and the principle
that laws should be interpreted liberally in favor of the accused, it declared that the absence of a judicial
109

declaration of nullity should not prejudice the accused whose second marriage was declared once and
for all valid with the annulment of her first marriage by the RTC of Muntinlupa City in 2003.
Dissatisfied, a Motion for Reconsideration was filed by the prosecution, but opposed by respondent. In a
Resolution dated January 2, 2008, the RTC denied the same ruling, among others, that the judicial
declaration of nullity of respondent's marriage is tantamount to a mere declaration or confirmation that
said marriage never existed at all, and for this reason, her act in contracting a second marriage cannot
be considered criminal.
Aggrieved, petitioner directly filed the present petition with us raising the following
issues:chanroblesvirtuallawlibrary
I. Whether the judicial nullity of a first marriage prior to the enactment of the Family Code and the
pronouncement in Wiegel vs. Sempio-Diy on the ground of psychological incapacity is a valid defense for
a charge of bigamy for entering into a second marriage prior to the enactment of the Family Code and
the pronouncement in Wiegel vs. Sempio-Diy?
II. Whether the trial court erred in stating that the jurisprudence prior to the enactment of the Family
Code and the pronouncement in Wiegel vs. Sempio-Diy regarding the necessity of securing a declaration
of nullity of the first marriage before entering a second marriage ambivalent, such that a person was
allowed to enter a subsequent marriage without the annulment of the first without incurring criminal
liability.
19
rll
Preliminarily, we note that the instant petition assailing the RTC's dismissal of the Information for
bigamy was filed by private complainant and not by the Office of the Solicitor General (OSG) which
should represent the government in all judicial proceedings filed before us.
20
rll
Notwithstanding, we will give due course to this petition as we had done in the past. In Antone v.
Beronilla,
21
rll the offended party (private complainant) questioned before the Court of Appeals (CA)
the RTC's dismissal of the Information for bigamy filed against her husband, and the CA dismissed the
petition on the ground, among others, that the petition should have been filed in behalf of the People of
the Philippines by the OSG, being its statutory counsel in all appealed criminal cases. In a petition filed
with us, we said that we had given due course to a number of actions even when the respective
interests of the government were not properly represented by the OSG and
said:chanroblesvirtuallawlibrary
In Labaro v. Panay, this Court dealt with a similar defect in the following
manner:chanroblesvirtuallawlibrary
It must, however, be stressed that if the public prosecution is aggrieved by any order ruling of the trial
judge in a criminal case, the OSG, and not the prosecutor, must be the one to question the order or
ruling before us. x x x
Nevertheless, since the challenged order affects the interest of the State or the plaintiff People of the
Philippines, we opted not to dismiss the petition on this technical ground. Instead, we required the OSG
to comment on the petition, as we had done before in some cases. In light of its Comment, we rule that
110

the OSG has ratified and adopted as its own the instant petition for the People of the Philippines.
(Emphasis supplied)
22
rll
Considering that we also required the OSG to file a Comment on the petition, which it did, praying that
the petition be granted in effect, such Comment had ratified the petition filed with us.
As to the merit of the petition, the issue for resolution is whether or not the RTC erred in quashing the
Information for bigamy filed against respondent.
Article 349 of the Revised Penal Code defines and penalizes bigamy as follow:chanroblesvirtuallawlibrary
Art. 349. Bigamy. The penalty of prision mayor shall be imposed upon any person who shall contract a
second or subsequent marriage before the former marriage has been legally dissolved, or before the
absent spouse has been declared presumptively dead by means of a judgment rendered in the proper
proceedings.
The elements of the crime of bigamy are: (a) the offender has been legally married; (b) the marriage has
not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be
presumed dead according to the Civil Code; (c) that he contracts a second or subsequent marriage; and
(d) the second or subsequent marriage has all the essential requisites for validity. The felony is
consummated on the celebration of the second marriage or subsequent marriage.
23
rll It is essential
in the prosecution for bigamy that the alleged second marriage, having all the essential requirements,
would be valid were it not for the subsistence of the first marriage.
24
rll
In this case, it appears that when respondent contracted a second marriage with Silverio in 1983, her
first marriage with Socrates celebrated in 1976 was still subsisting as the same had not yet been
annulled or declared void by a competent authority. Thus, all the elements of bigamy were alleged in
the Information. In her Motion to Quash the Information, she alleged, among others, that:
x x x x
2. The records of this case would bear out that accused's marriage with said Socrates Flores was
declared void ab initio on 14 April 2003 by Branch 256 of the Regional Trial Court of Muntinlupa City.
The said decision was never appealed, and became final and executory shortly thereafter.
3. In other words, before the filing of the Information in this case, her marriage with Mr. Flores had
already been declared void from the beginning.
4. There was therefore no marriage prior to 24 January 1983 to speak of. In other words, there was only
one marriage.
5. The basic element of the crime of bigamy, that is, two valid marriages, is therefore wanting.
25
rll
Clearly, the annulment of respondent's first marriage on the ground of psychological incapacity was
declared only in 2003. The question now is whether the declaration of nullity of respondent's first
marriage justifies the dismissal of the Information for bigamy filed against her.
111

We rule in the negative.
In Mercado v. Tan,
26
rll we ruled that the subsequent judicial declaration of the nullity of the first
marriage was immaterial, because prior to the declaration of nullity, the crime of bigamy had already
been consummated. And by contracting a second marriage while the first was still subsisting, the
accused committed the acts punishable under Article 349 of the Revised Penal Code.
In Abunado v. People,
27
rll we held that what is required for the charge of bigamy to prosper is that
the first marriage be subsisting at the time the second marriage is contracted.
28
rll Even if the accused
eventually obtained a declaration that his first marriage was void ab initio, the point is, both the first and
the second marriage were subsisting before the first marriage was annulled.
29
rll
In Tenebro v. CA,
30
rll we declared that although the judicial declaration of the nullity of a marriage
on the ground of psychological incapacity retroacts to the date of the celebration of the marriage insofar
as the vinculum between the spouses is concerned, it is significant to note that said marriage is not
without legal effects. Among these effects is that children conceived or born before the judgment of
absolute nullity of the marriage shall be considered legitimate. There is, therefore, a recognition written
into the law itself that such a marriage, although void ab initio, may still produce legal consequences.
Among these legal consequences is incurring criminal liability for bigamy. To hold otherwise would
render the States penal laws on bigamy completely nugatory, and allow individuals to deliberately
ensure that each marital contract be flawed in some manner, and to thus escape the consequences of
contracting multiple marriages, while beguiling throngs of hapless women with the promise of futurity
and commitment.
31
rll
And in Jarillo v. People,
32
rll applying the foregoing jurisprudence, we affirmed the accused's
conviction for bigamy, ruling that the moment the accused contracted a second marriage without the
previous one having been judicially declared null and void, the crime of bigamy was already
consummated because at the time of the celebration of the second marriage, the accuseds first
marriage which had not yet been declared null and void by a court of competent jurisdiction was
deemed valid and subsisting.
Here, at the time respondent contracted the second marriage, the first marriage was still subsisting as it
had not yet been legally dissolved. As ruled in the above-mentioned jurisprudence, the subsequent
judicial declaration of nullity of the first marriage would not change the fact that she contracted the
second marriage during the subsistence of the first marriage. Thus, respondent was properly charged of
the crime of bigamy, since the essential elements of the offense charged were sufficiently alleged.
Respondent claims that Tenebro v. CA
33
rll is not applicable, since the declaration of nullity of the
previous marriage came after the filing of the Information, unlike in this case where the declaration was
rendered before the information was filed. We do not agree. What makes a person criminally liable for
bigamy is when he contracts a second or subsequent marriage during the subsistence of a valid
marriage.
Parties to the marriage should not be permitted to judge for themselves its nullity, for the same must be
submitted to the judgment of competent courts and only when the nullity of the marriage is so declared
can it be held as void, and so long as there is no such declaration the presumption is that the marriage
112

exists.
34
rll Therefore, he who contracts a second marriage before the judicial declaration of nullity of
the first marriage assumes the risk of being prosecuted for bigamy.
35
rll
Anent respondent's contention in her Comment that since her two marriages were contracted prior to
the effectivity of the Family Code, Article 40 of the Family Code cannot be given retroactive effect
because this will impair her right to remarry without need of securing a judicial declaration of nullity of a
completely void marriage.
We are not persuaded.
In Jarillo v. People,
36
rll where the accused, in her motion for reconsideration, argued that since her
marriages were entered into before the effectivity of the Family Code, then the applicable law is Section
29 of the Marriage Law (Act 3613),
37
rll instead of Article 40 of the Family Code, which requires a final
judgment declaring the previous marriage void before a person may contract a subsequent marriage.
We did not find the argument meritorious and said:chanroblesvirtuallawlibrary
As far back as 1995, in Atienza v. Brillantes, Jr., the Court already made the declaration that Article 40,
which is a rule of procedure, should be applied retroactively because Article 256 of the Family Code
itself provides that said "Code shall have retroactive effect insofar as it does not prejudice or impair
vested or acquired rights." The Court went on to explain, thus:chanroblesvirtuallawlibrary
The fact that procedural statutes may somehow affect the litigants' rights may not preclude their
retroactive application to pending actions. The retroactive application of procedural laws is not violative
of any right of a person who may feel that he is adversely affected. The reason is that as a general rule,
no vested right may attach to, nor arise from, procedural laws.
In Marbella-Bobis v. Bobis, the Court pointed out the danger of not enforcing the provisions of Article 40
of the Family Code, to wit:chanroblesvirtuallawlibrary
In the case at bar, respondents clear intent is to obtain a judicial declaration nullity of his first marriage
and thereafter to invoke that very same judgment to prevent his prosecution for bigamy. He cannot
have his cake and eat it too. Otherwise, all that an adventurous bigamist has to do is disregard Article 40
of the Family Code, contract a subsequent marriage and escape a bigamy charge by simply claiming that
the first marriage is void and that the subsequent marriage is equally void for lack of a prior judicial
declaration of nullity of the first. A party may even enter into a marriage license and thereafter contract
a subsequent marriage without obtaining a declaration of nullity of the first on the assumption that the
first marriage is void. Such scenario would render nugatory the provision on bigamy.
38
rll
WHEREFORE, considering the foregoing, the petition is GRANTED. The Order dated September 24, 2007
and the Resolution dated January 2, 2008 of the Regional Trial Court of San Pedro, Laguna, Branch 31,
issued in Criminal Case No. 4990-SPL, are hereby SET ASIDE. Criminal Case No. 4990-SPL is ordered
REMANDED to the trial court for further proceedings.rllbrr
SO ORDERED.

113

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 136467 April 6, 2000
ANTONIA ARMAS Y CALISTERIO, petitioner,
vs.
MARIETTA CALISTERIO, respondent.

VITUG, J.:
On 24 April 1992, Teodorico Calisterio died intestate, leaving several parcels of land with an estimated
value of P604,750.00. Teodorico was survived by his wife, herein respondent Marietta Calisterio.
Teodorico was the second husband of Marietta who had previously been married to James William
Bounds on 13 January 1946 at Caloocan City. James Bounds disappeared without a trace on 11 February
1947. Teodorico and Marietta were married eleven years later, or on 08 May 1958, without Marietta
having priorly secured a court declaration that James was presumptively dead.
On 09 October 1992, herein petitioner Antonia Armas y Calisterio, a surviving sister of Teodorico, filed
with the Regional Trial Court ("RTC") of Quezon City, Branch 104, a petition entitled, "In the Matter of
Intestate Estate of the Deceased Teodorico Calisterio y Cacabelos, Antonia Armas, Petitioner," claiming
to be inter alia, the sole surviving heir of Teodorico Calisterio, the marriage between the latter and
respondent Marietta Espinosa Calisterio being allegedly bigamous and thereby null and void. She prayed
that her son Sinfroniano C. Armas, Jr., be appointed administrator, without bond, of the estate of the
deceased and that the inheritance be adjudicated to her after all the obligations of the estate would
have been settled.
Respondent Marietta opposed the petition. Marietta stated that her first marriage with James Bounds
had been dissolved due to the latter's absence, his whereabouts being unknown, for more than eleven
years before she contracted her second marriage with Teodorico. Contending to be the surviving spouse
of Teodorico, she sought priority in the administration of the estate of the decedent.
On 05 February 1993, the trial court issued an order appointing jointly Sinfroniano C. Armas, Jr., and
respondent Marietta administrator and administratrix, respectively, of the intestate estate of Teodorico.
On 17 January 1996, the lower court handed down its decision in favor of petitioner Antonia; it
adjudged:
WHEREFORE, judgment is hereby rendered finding for the petitioner and against the oppositor
whereby herein petitioner, Antonia Armas y Calisterio, is declared as the sole heir of the estate
of Teodorico Calisterio y Cacabelos.
1

114

Respondent Marietta appealed the decision of the trial court to the Court of Appeals, formulating that

1. The trial court erred in applying the provisions of the Family Code in the instant case despite
the fact that the controversy arose when the New Civil Code was the law in force.
2. The trial court erred in holding that the marriage between oppositor-appellant and the
deceased Teodorico Calisterio is bigamous for failure of the former to secure a decree of the
presumptive death of her first spouse.
3. The trial court erred in not holding that the property situated at No. 32 Batangas Street, San
Francisco del Monte, Quezon City, is the conjugal property of the oppositor-appellant and the
deceased Teodorico Calisterio.
4. The trial court erred in holding that oppositor-appellant is not a legal heir of deceased
Teodorico Calisterio.
5. The trial court erred in not holding that letters of administration should be granted solely in
favor of oppositor-appellant.
2

On 31 August 1998, the appellate court, through Mr. Justice Conrado M. Vasquez, Jr., promulgated its
now assailed decision, thus:
IN VIEW OF ALL THE FOREGOING, the Decision appealed from is REVERSED AND SET ASIDE, and
a new one entered declaring as follows:
(a) Marietta Calisterio's marriage to Teodorico remains valid;
(b) The house and lot situated at #32 Batangas Street, San Francisco del Monte, Quezon
City, belong to the conjugal partnership property with the concomitant obligation of the
partnership to pay the value of the land to Teodorico's estate as of the time of the
taking;
(c) Marietta Calisterio, being Teodorico's compulsory heir, is entitled to one half of her
husband's estate, and Teodorico's sister, herein petitioner Antonia Armas and her
children, to the other half;
(d) The trial court is ordered to determine the competence of Marietta E. Calisterio to
act as administrator of Teodorico's estate, and if so found competent and willing, that
she be appointed as such; otherwise, to determine who among the deceased's next of
kin is competent and willing to become the administrator of the estate.
3

On 23 November 1998, the Court of Appeals denied petitioner's motion for reconsideration,
prompting her to interpose the present appeal. Petitioner asseverates:
115

It is respectfully submitted that the decision of the Court of Appeals reversing and setting aside
the decision of the trial court is not in accord with the law or with the applicable decisions of
this Honorable Court.
4

It is evident that the basic issue focuses on the validity of the marriage between the deceased Teodorico
and respondent Marietta, that, in turn, would be determinative of her right as a surviving spouse.
The marriage between the deceased Teodorico and respondent Marietta was solemnized on 08 May
1958. The law in force at that time was the Civil Code, not the Family Code which took effect only on 03
August 1988. Article 256 of the Family Code
5
itself limited its retroactive governance only to cases
where it thereby would not prejudice or impair vested or acquired rights in accordance with the Civil
Code or other laws.
Verily, the applicable specific provision in the instant controversy is Article 83 of the New Civil Code
which provides:
Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first
spouse of such person with any person other than such first spouse shall be illegal and void from
its performance, unless:
(1) The first marriage was annulled or dissolved; or
(2) The first spouse had been absent for seven consecutive years at the time of the second
marriage without the spouse present having news of the absentee being alive, or if the
absentee, though he has been absent for less than seven years, is generally considered as dead
and believed to be so by the spouse present at the time of contracting such subsequent
marriage, or if the absentee is presumed dead according to articles 390 and 391. The marriage
so contracted shall be valid in any of the three cases until declared null and void by a competent
court.
Under the foregoing provisions, a subsequent marriage contracted during the lifetime of the first spouse
is illegal and void ab initio unless the prior marriage is first annulled or dissolved. Paragraph (2) of the
law gives exceptions from the above rule. For the subsequent marriage referred to in the three
exceptional cases therein provided, to be held valid, the spouse present (not the absentee spouse) so
contracting the later marriage must have done so in good faith.
6
Bad faith imports a dishonest purpose
or some moral obliquity and conscious doing of wrong it partakes of the nature of fraud, a breach of a
known duty through some motive of interest or ill will.
7
The Court does not find these circumstances to
be here extant.
A judicial declaration of absence of the absentee spouse is not necessary
8
as long as the prescribed
period of absence is met. It is equally noteworthy that the marriage in these exceptional cases are, by
the explicit mandate of Article 83, to be deemed valid "until declared null and void by a competent
court." It follows that the burden of proof would be, in these cases, on the party assailing the second
marriage.
In contrast, under the 1988 Family Code, in order that a subsequent bigamous marriage may
exceptionally be considered valid, the following conditions must concur; viz.: (a) The prior spouse of the
116

contracting party must have been absent for four consecutive years, or two years where there is danger
of death under the circumstances stated in Article 391 of the Civil Code at the time of disappearance; (b)
the spouse present has a well-founded belief that the absent spouse is already dead; and (c) there is,
unlike the old rule, a judicial declaration of presumptive death of the absentee for which purpose the
spouse present can institute a summary proceeding in court to ask for that declaration. The last
condition is consistent and in consonance with the requirement of judicial intervention in subsequent
marriages as so provided in Article 41
9
, in relation to Article 40,
10
of the Family Code.
In the case at bar, it remained undisputed that respondent Marietta's first husband, James William
Bounds, had been absent or had disappeared for more than eleven years before she entered into a
second marriage in 1958 with the deceased Teodorico Calisterio. This second marriage, having been
contracted during the regime of the Civil Code, should thus be deemed valid notwithstanding the
absence of a judicial declaration of presumptive death of James Bounds.
The conjugal property of Teodorico and Marietta, no evidence having been adduced to indicate another
property regime between the spouses, pertains to them in common. Upon its dissolution with the death
of Teodorico, the property should rightly be divided in two equal portions one portion going to the
surviving spouse and the other portion to the estate of the deceased spouse. The successional right in
intestacy of a surviving spouse over the net estate
11
of the deceased, concurring with legitimate
brothers and sisters or nephews and nieces (the latter by right of representation), is one-half of the
inheritance, the brothers and sisters or nephews and nieces, being entitled to the other half. Nephews
and nieces, however, can only succeed by right of representation in the presence of uncles and aunts;
alone, upon the other hand, nephews and nieces can succeed in their own right which is to say that
brothers or sisters exclude nephews and nieces except only in representation by the latter of their
parents who predecease or are incapacitated to succeed. The appellate court has thus erred in granting,
in paragraph (c) of the dispositive portion of its judgment, successional rights, to petitioner's children,
along with their own mother Antonia who herself is invoking successional rights over the estate of her
deceased brother.1wphi1
WHEREFORE, the assailed judgment of the Court of Appeals in CA G.R. CV No. 51574 is AFFIRMED except
insofar only as it decreed in paragraph (c) of the dispositive portion thereof that the children of
petitioner are likewise entitled, along with her, to the other half of the inheritance, in lieu of which, it is
hereby DECLARED that said one-half share of the decedent's estate pertains solely to petitioner to the
exclusion of her own children. No costs.
SO ORDERED.1wphi1.nt
Melo, Panganiban, Purisima and Gonzaga-Reyes, JJ., concur.

117

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 94053 March 17, 1993
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
GREGORIO NOLASCO, respondent.
The Solicitor General for plaintiff-appellee.
Warloo G. Cardenal for respondent.
R E S O L U T I O N

FELICIANO, J.:
On 5 August 1988, respondent Gregorio Nolasco filed before the Regional Trial Court of Antique, Branch
10, a petition for the declaration of presumptive death of his wife Janet Monica Parker, invoking Article
41 of the Family Code. The petition prayed that respondent's wife be declared presumptively dead or, in
the alternative, that the marriage be declared null and void.
1

The Republic of the Philippines opposed the petition through the Provincial Prosecutor of Antique who
had been deputized to assist the Solicitor-General in the instant case. The Republic argued, first, that
Nolasco did not possess a "well-founded belief that the absent spouse was already dead,"
2
and second,
Nolasco's attempt to have his marriage annulled in the same proceeding was a "cunning attempt" to
circumvent the law on marriage.
3

During trial, respondent Nolasco testified that he was a seaman and that he had first met Janet Monica
Parker, a British subject, in a bar in England during one of his ship's port calls. From that chance meeting
onwards, Janet Monica Parker lived with respondent Nolasco on his ship for six (6) months until they
returned to respondent's hometown of San Jose, Antique on 19 November 1980 after his seaman's
contract expired. On 15 January 1982, respondent married Janet Monica Parker in San Jose, Antique, in
Catholic rites officiated by Fr. Henry van Tilborg in the Cathedral of San Jose.
Respondent Nolasco further testified that after the marriage celebration, he obtained another
employment contract as a seaman and left his wife with his parents in San Jose, Antique. Sometime in
January 1983, while working overseas, respondent received a letter from his mother informing him that
Janet Monica had given birth to his son. The same letter informed him that Janet Monica had left
118

Antique. Respondent claimed he then immediately asked permission to leave his ship to return home.
He arrived in Antique in November 1983.
Respondent further testified that his efforts to look for her himself whenever his ship docked in England
proved fruitless. He also stated that all the letters he had sent to his missing spouse at No. 38 Ravena
Road, Allerton, Liverpool, England, the address of the bar where he and Janet Monica first met, were all
returned to him. He also claimed that he inquired from among friends but they too had no news of Janet
Monica.
On cross-examination, respondent stated that he had lived with and later married Janet Monica Parker
despite his lack of knowledge as to her family background. He insisted that his wife continued to refuse
to give him such information even after they were married. He also testified that he did not report the
matter of Janet Monica's disappearance to the Philippine government authorities.
Respondent Nolasco presented his mother, Alicia Nolasco, as his witness. She testified that her
daughter-in-law Janet Monica had expressed a desire to return to England even before she had given
birth to Gerry Nolasco on 7 December 1982. When asked why her daughter-in-law might have wished to
leave Antique, respondent's mother replied that Janet Monica never got used to the rural way of life in
San Jose, Antique. Alicia Nolasco also said that she had tried to dissuade Janet Monica from leaving as
she had given birth to her son just fifteen days before, but when she (Alicia) failed to do so, she gave
Janet Monica P22,000.00 for her expenses before she left on 22 December 1982 for England. She further
claimed that she had no information as to the missing person's present whereabouts.
The trial court granted Nolasco's petition in a Judgment dated 12 October 1988 the dispositive portion
of which reads:
Wherefore, under Article 41, paragraph 2 of the Family Code of the Philippines
(Executive Order No. 209, July 6, 1987, as amended by Executive Order No. 227, July 17,
1987) this Court hereby declares as presumptively dead Janet Monica Parker Nolasco,
without prejudice to her reappearance.
4

The Republic appealed to the Court of Appeals contending that the trial court erred in declaring Janet
Monica Parker presumptively dead because respondent Nolasco had failed to show that there existed a
well founded belief for such declaration.
The Court of Appeals affirmed the trial court's decision, holding that respondent had sufficiently
established a basis to form a belief that his absent spouse had already died.
The Republic, through the Solicitor-General, is now before this Court on a Petition for Review where the
following allegations are made:
1. The Court of Appeals erred in affirming the trial court's finding that there existed a
well-founded belief on the part of Nolasco that Janet Monica Parker was already dead;
and
119

2. The Court of Appeals erred in affirming the trial Court's declaration that the petition
was a proper case of the declaration of presumptive death under Article 41, Family
Code.
5

The issue before this Court, as formulated by petitioner is "[w]hether or not Nolasco has a well-founded
belief that his wife is already dead."
6

The present case was filed before the trial court pursuant to Article 41 of the Family Code which
provides that:
Art. 41. A marriage contracted by any person during the subsistence of a previous
marriage shall be null and void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four consecutive years and the spouse
present had a well-founded belief that the absent spouse was already dead. In case of
disappearance where there is danger of death under the circumstances set forth in the
provision of Article 391 of the Civil Code, an absence of only two years shall be
sufficient.
For the purpose of contracting the subsequent marriage under the preceding paragraph,
the spouse present must institute a summary proceeding as provided in this Code for
the declaration of presumptive death of the absentee, without prejudice to the effect of
reappearance of the absent spouse. (Emphasis supplied).
When Article 41 is compared with the old provision of the Civil Code, which it superseded,
7
the
following crucial differences emerge. Under Article 41, the time required for the presumption to arise
has been shortened to four (4) years; however, there is need for a judicial declaration of presumptive
death to enable the spouse present to remarry.
8
Also, Article 41 of the Family Code imposes a stricter
standard than the Civil Code: Article 83 of the Civil Code merely requires either that there be no news
that such absentee is still alive; or the absentee is generally considered to be dead and believed to be so
by the spouse present, or is presumed dead under Article 390 and 391 of the Civil Code.
9
The Family
Code, upon the other hand, prescribes as "well founded belief" that the absentee is already dead before
a petition for declaration of presumptive death can be granted.
As pointed out by the Solicitor-General, there are four (4) requisites for the declaration of presumptive
death under Article 41 of the Family Code:
1. That the absent spouse has been missing for four consecutive years, or two
consecutive years if the disappearance occurred where there is danger of death under
the circumstances laid down in Article 391, Civil Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief that the absentee is dead; and
4. That the present spouse files a summary proceeding for the declaration of
presumptive death of the absentee.
10

120

Respondent naturally asserts that he had complied with all these requirements.
11

Petitioner's argument, upon the other hand, boils down to this: that respondent failed to prove that he
had complied with the third requirement, i.e., the existence of a "well-founded belief" that the absent
spouse is already dead.
The Court believes that respondent Nolasco failed to conduct a search for his missing wife with such
diligence as to give rise to a "well-founded belief" that she is dead.
United States v. Biasbas,
12
is instructive as to degree of diligence required in searching for a missing
spouse. In that case, defendant Macario Biasbas was charged with the crime of bigamy. He set-up the
defense of a good faith belief that his first wife had already died. The Court held that defendant had not
exercised due diligence to ascertain the whereabouts of his first wife, noting that:
While the defendant testified that he had made inquiries concerning the whereabouts
of his wife, he fails to state of whom he made such inquiries. He did not even write to
the parents of his first wife, who lived in the Province of Pampanga, for the purpose of
securing information concerning her whereabouts. He admits that he had a suspicion
only that his first wife was dead. He admits that the only basis of his suspicion was the
fact that she had been absent. . . .
13

In the case at bar, the Court considers that the investigation allegedly conducted by respondent in his
attempt to ascertain Janet Monica Parker's whereabouts is too sketchy to form the basis of a reasonable
or well-founded belief that she was already dead. When he arrived in San Jose, Antique after learning of
Janet Monica's departure, instead of seeking the help of local authorities or of the British Embassy,
14
he
secured another seaman's contract and went to London, a vast city of many millions of inhabitants, to
look for her there.
Q After arriving here in San Jose, Antique, did you exert efforts to
inquire the whereabouts of your wife?
A Yes, Sir.
Court:
How did you do that?
A I secured another contract with the ship and we had a trip to London
and I went to London to look for her I could not find
her (sic).
15
(Emphasis supplied)
Respondent's testimony, however, showed that he confused London for Liverpool and this casts doubt
on his supposed efforts to locate his wife in England. The Court of Appeal's justification of the mistake,
to wit:
. . . Well, while the cognoscente (sic) would readily know the geographical difference
between London and Liverpool, for a humble seaman like Gregorio the two places could
121

mean one place in England, the port where his ship docked and where he found
Janet. Our own provincial folks, every time they leave home to visit relatives in Pasay
City, Kalookan City, or Paraaque, would announce to friends and relatives, "We're
going to Manila." This apparent error in naming of places of destination does not appear
to be fatal.
16

is not well taken. There is no analogy between Manila and its neighboring cities, on one hand, and
London and Liverpool, on the other, which, as pointed out by the Solicitor-General, are around three
hundred fifty (350) kilometers apart. We do not consider that walking into a major city like Liverpool or
London with a simple hope of somehow bumping into one particular person there which is in effect
what Nolasco says he did can be regarded as a reasonably diligent search.
The Court also views respondent's claim that Janet Monica declined to give any information as to her
personal background even after she had married respondent
17
too convenient an excuse to justify his
failure to locate her. The same can be said of the loss of the alleged letters respondent had sent to his
wife which respondent claims were all returned to him. Respondent said he had lost these returned
letters, under unspecified circumstances.
Neither can this Court give much credence to respondent's bare assertion that he had inquired from
their friends of her whereabouts, considering that respondent did not identify those friends in his
testimony. The Court of Appeals ruled that since the prosecutor failed to rebut this evidence during trial,
it is good evidence. But this kind of evidence cannot, by its nature, be rebutted. In any case, admissibility
is not synonymous with credibility.
18
As noted before, there are serious doubts to respondent's
credibility. Moreover, even if admitted as evidence, said testimony merely tended to show that the
missing spouse had chosen not to communicate with their common acquaintances, and not that she was
dead.
Respondent testified that immediately after receiving his mother's letter sometime in January 1983, he
cut short his employment contract to return to San Jose, Antique. However, he did not explain the delay
of nine (9) months from January 1983, when he allegedly asked leave from his captain, to November
1983 when be finally reached San Jose. Respondent, moreover, claimed he married Janet Monica Parker
without inquiring about her parents and their place of residence.
19
Also, respondent failed to explain
why he did not even try to get the help of the police or other authorities in London and Liverpool in his
effort to find his wife. The circumstances of Janet Monica's departure and respondent's subsequent
behavior make it very difficult to regard the claimed belief that Janet Monica was dead a well-founded
one.
In Goitia v. Campos-Rueda,
20
the Court stressed that:
. . . Marriage is an institution, the maintenance of which in its purity the public is deeply
interested. It is a relationship for life and the parties cannot terminate it at any shorter
period by virtue of any contract they make. . . . .
21
(Emphasis supplied)
By the same token, the spouses should not be allowed, by the simple expedient of agreeing that one of
them leave the conjugal abode and never to return again, to circumvent the policy of the laws on
marriage. The Court notes that respondent even tried to have his marriage annulled before the trial
court in the same proceeding.
122

In In Re Szatraw,
22
the Court warned against such collusion between the parties when they find it
impossible to dissolve the marital bonds through existing legal means.
While the Court understands the need of respondent's young son, Gerry Nolasco, for maternal care, still
the requirements of the law must prevail. Since respondent failed to satisfy the clear requirements of
the law, his petition for a judicial declaration of presumptive death must be denied. The law does not
view marriage like an ordinary contract. Article 1 of the Family Code emphasizes that.
. . . Marriage is a special contract of permanent union between a man and a
woman entered into in accordance with law for the establishment of conjugal and family
life. It is the foundation of the familyand an inviolable social institution whose nature,
consequences, and incidents are governed by law and not subject to stipulation, except
that marriage settlements may fix the property relations during the marriage within the
limits provided by this Code. (Emphasis supplied)
In Arroyo, Jr. v. Court of Appeals,
23
the Court stressed strongly the need to protect.
. . . the basic social institutions of marriage and the family in the preservation of which
the State bas the strongest interest; the public policy here involved is of the most
fundamental kind. In Article II, Section 12 of the Constitution there is set forth the
following basic state policy:
The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution. . . .
The same sentiment bas been expressed in the Family Code of the Philippines in Article
149:
The family, being the foundation of the nation, is a basic social
institution which public policy cherishes and protects. Consequently,
family relations are governed by law and no custom, practice or
agreement destructive of the family shall be recognized or given
effect.
24

In fine, respondent failed to establish that he had the well-founded belief required by law that his
absent wife was already dead that would sustain the issuance of a court order declaring Janet Monica
Parker presumptively dead.
WHEREFORE, the Decision of the Court of Appeals dated 23 February 1990, affirming the trial court's
decision declaring Janet Monica Parker presumptively dead is hereby REVERSED and both Decisions are
hereby NULLIFIED and SET ASIDE. Costs against respondent.
Bidin, Davide, Jr., Romero and Melo, JJ., concur.

123

Republic of the Philippines
Supreme Court
Manila
SECOND DIVISION

REPUBLIC OF THE PHILIPPINES,
Petitioner,




- versus -




YOLANDA CADACIO GRANADA,
Respondent.
G. R. No. 187512

Present:

CARPIO, J., Chairperson,
BRION,
PEREZ,
SERENO, and
REYES, JJ.


Promulgated:

June 13, 2012
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N

SERENO, J.:

This is a Rule 45 Petition seeking the reversal of the Resolutions dated 23 January 2009
[1]
and 3
April 2009
[2]
issued by the Court of Appeals (CA), which affirmed the grant by the Regional Trial Court
(RTC) of the Petition for Declaration of Presumptive Death of the absent spouse of respondent.
In May 1991, respondent Yolanda Cadacio Granada (Yolanda) met Cyrus Granada (Cyrus) at
Sumida Electric Philippines, an electronics
company in Paranaque where both were then working. The two eventually got married at the Manila
124

City Hall on 3 March 1993. Their marriage resulted in the birth of their son, Cyborg Dean Cadacio
Granada.
Sometime in May 1994, when Sumida Electric Philippines closed down, Cyrus went to Taiwan to
seek employment. Yolanda claimed that from that time, she had not received any communication from
her husband, notwithstanding efforts to locate him. Her brother testified that he had asked the relatives
of Cyrus regarding the latters whereabouts, to no avail.
After nine (9) years of waiting, Yolanda filed a Petition to have Cyrus declared presumptively
dead. The Petition was raffled to Presiding Judge Avelino Demetria of RTC Branch 85, Lipa City, and was
docketed as Sp. Proc. No. 2002-0530.
On 7 February 2005, the RTC rendered a Decision declaring Cyrus as presumptively dead.
On 10 March 2005, petitioner Republic of the Philippines, represented by the Office of the
Solicitor General (OSG), filed a Motion for Reconsideration of this Decision. Petitioner argued that
Yolanda had failed to exert earnest efforts to locate Cyrus and thus failed to prove her well-founded
belief that he was already dead. However, in an Order dated 29 June 2007, the RTC denied the motion.
Petitioner filed a Notice of Appeal to elevate the case to the CA, presumably under Rule 41,
Section 2(a) of the Rules of Court. Yolanda filed a Motion to Dismiss on the ground that the CA had no
jurisdiction over the appeal. She argued that her Petition for Declaration of Presumptive Death, based
on Article 41 of the Family Code, was a summary judicial proceeding,
in which the judgment is immediately final and executory and, thus, not appealable.

In its 23 January 2009 Resolution, the appellate court granted Yolandas Motion to Dismiss on
the ground of lack of jurisdiction. Citing Republic v. Bermudez-Lorino,
[3]
the CA ruled that a petition for
125

declaration of presumptive death under Rule 41 of the Family Code is a summary proceeding. Thus,
judgment thereon is immediately final and executory upon notice to the parties.
Petitioner moved for reconsideration, but its motion was likewise denied by the CA in a
Resolution dated 3 April 2009.
[4]

Hence, the present Rule 45 Petition.
Issues

1. Whether the CA seriously erred in dismissing the Petition on the
ground that the Decision of the RTC in a summary proceeding for the declaration of
presumptive death is immediately final and executory upon notice to the parties and,
hence, is not subject to ordinary appeal

2. Whether the CA seriously erred in affirming the RTCs grant of the
Petition for Declaration of Presumptive Death under Article 41 of the Family Code based
on the evidence that respondent presented


Our Ruling

1. On whether the CA seriously erred in dismissing the
Petition on the ground that the Decision of the RTC in a
summary proceeding for the declaration of presumptive death
is immediately final and executory upon notice to the parties
and, hence, is not subject to ordinary appeal
126

In the assailed Resolution dated 23 January 2009, the CA dismissed the Petition assailing the
RTCs grant of the Petition for Declaration of Presumptive Death of the absent spouse under Article 41
of the Family Code. Citing Republic v. Bermudez-Lorino,
[5]
the appellate court noted that a petition for
declaration of presumptive death for the purpose of remarriage is a summary judicial proceeding under
the Family Code. Hence, the RTC Decision therein is immediately final and executory upon notice to the
parties, by express provision of Article 247 of the same Code. The decision is therefore not subject to
ordinary appeal, and the attempt to question it through a Notice of Appeal is unavailing.
We affirm the CA ruling.
Article 41 of the Family Code provides:

Art. 41. A marriage contracted by any person during the subsistence of a previous
marriage shall be null and void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four consecutive years and the spouse
present has a well-founded belief that the absent spouse was already dead. In case of
disappearance where there is danger of death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an absence of only two years shall be
sufficient.
For the purpose of contracting the subsequent marriage under the preceding
paragraph the spouse present must institute a summary proceeding as provided in this
Code for the declaration of presumptive death of the absentee, without prejudice to the
effect of reappearance of the absent spouse. (Underscoring supplied.)
Clearly, a petition for declaration of presumptive death of an absent spouse for the purpose of
contracting a subsequent marriage under Article 41 of the Family Code is a summary proceeding as
provided for under the Family Code.
Further, Title XI of the Family Code is entitled Summary Judicial Proceedings in the Family Law.
Subsumed thereunder are Articles 238 and 247, which provide:
127

Art. 238. Until modified by the Supreme Court, the procedural rules in this Title shall
apply in all cases provided for in this Code requiring summary court proceedings. Such
cases shall be decided in an expeditious manner without regard to technical rules.
xxx xxx xxx
Art. 247. The judgment of the court shall be immediately final and executory.


Further, Article 253 of the Family Code reads:

ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern
summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as
they are applicable.
Taken together, Articles 41, 238, 247 and 253 of the Family Code provide that since a petition
for declaration of presumptive death is a summary proceeding, the judgment of the court therein shall
be immediately final and executory.
In Republic v. Bermudez-Lorino,
[6]
the Republic likewise appealed the CAs affirmation of the
RTCs grant of respondents Petition for Declaration of Presumptive Death of her absent spouse. The
Court therein held that it was an error for the Republic to file a Notice of Appeal when the latter
elevated the matter to the CA, to wit:

In Summary Judicial Proceedings under the Family Code, there is no
reglementary period within which to perfect an appeal, precisely because judgments
rendered thereunder, by express provision of Section 247, Family Code, supra, are
immediately final and executory.
xxx xxx xxx
But, if only to set the records straight and for the future guidance of the bench
and the bar, let it be stated that the RTCs decision dated November 7, 2001, was
128

immediately final and executory upon notice to the parties. It was erroneous for the
OSG to file a notice of appeal, and for the RTC to give due course thereto. The Court of
Appeals acquired no jurisdiction over the case, and should have dismissed the appeal
outright on that ground.
Justice (later Chief Justice) Artemio Panganiban, who concurred in the result reached by the
Court in Republic v. Bermudez-Lorino, additionally opined that what the OSG should have filed was a
petition for certiorari under Rule 65, not a petition for review under Rule 45.
In the present case, the Republic argues that Bermudez-Lorino has been superseded by the
subsequent Decision of the Court in Republic v. Jomoc,
[7]
issued a few months later.
In Jomoc, the RTC granted respondents Petition for Declaration of Presumptive Death of her
absent husband for the purpose of remarriage. Petitioner Republic appealed the RTC Decision by filing a
Notice of Appeal. The trial court disapproved the Notice of Appeal on the ground that, under
the Rules of Court,
[8]
a record on appeal is required to be filed when appealing special proceedings
cases. The CA affirmed the RTC ruling. In reversing the CA, this Court clarified that while an action for
declaration of death or absence under Rule 72, Section 1(m), expressly falls under the category of
special proceedings, a petition for declaration of presumptive death under Article 41 of the Family Code
is a summary proceeding, as provided for by Article 238 of the same Code. Since its purpose was to
enable her to contract a subsequent valid marriage, petitioners action was a summary proceeding
based on Article 41 of the Family Code, rather than a special proceeding under Rule 72 of the Rules of
Court. Considering that this action was not a special proceeding, petitioner was not required to file a
record on appeal when it appealed the RTC Decision to the CA.
We do not agree with the Republics argument that Republic v. Jomoc superseded our ruling
in Republic v. Bermudez-Lorino. As observed by the CA, the Supreme Court in Jomoc did not expound on
the characteristics of a summary proceeding under the Family Code. In contrast, the Court in Bermudez-
129

Lorino expressly stated that its ruling on the impropriety of an ordinary appeal as a vehicle for
questioning the trial courts Decision in a summary proceeding for declaration of presumptive death
under Article 41 of the Family Code was intended to set the records straight and for the future
guidance of the bench and the bar.
At any rate, four years after Jomoc, this Court settled the rule regarding appeal of judgments
rendered in summary proceedings under the Family Code when it ruled inRepublic v. Tango:
[9]

This case presents an opportunity for us to settle the rule on appeal of
judgments rendered in summary proceedings under the Family Code and accordingly,
refine our previous decisions thereon.

Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL
PROCEEDINGS IN THE FAMILY LAW, establishes the rules that govern summary court
proceedings in the Family Code:

ART. 238. Until modified by the Supreme Court, the procedural rules
in this Title shall apply in all cases provided for in this Code requiring
summary court proceedings. Such cases shall be decided in an
expeditious manner without regard to technical rules.

In turn, Article 253 of the Family Code specifies the cases covered by the rules in
chapters two and three of the same title. It states:

ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall
likewise govern summary proceedings filed under Articles 41, 51, 69, 73,
96, 124 and 217, insofar as they are applicable. (Emphasis supplied.)

In plain text, Article 247 in Chapter 2 of the same title reads:

ART 247. The judgment of the court shall be immediately final and
executory.

By express provision of law, the judgment of the court in a summary proceeding
shall be immediately final and executory. As a matter of course, it follows that no appeal
can be had of the trial court's judgment in a summary proceeding for the declaration of
presumptive death of an absent spouse under Article 41 of the Family Code. It goes
without saying, however, that an aggrieved party may file a petition for certiorari to
question abuse of discretion amounting to lack of jurisdiction. Such petition should be
filed in the Court of Appeals in accordance with the Doctrine of Hierarchy of Courts. To
be sure, even if the Court's original jurisdiction to issue a writ of certiorari is concurrent
with the RTCs and the Court of Appeals in certain cases, such concurrence does not
130

sanction an unrestricted freedom of choice of court forum. From the decision of the
Court of Appeals, the losing party may then file a petition for review on certiorari under
Rule 45 of the Rules of Court with the Supreme Court. This is because the errors which
the court may commit in the exercise of jurisdiction are merely errors of judgment
which are the proper subject of an appeal.
In sum, under Article 41 of the Family Code, the losing party in a summary proceeding for the
declaration of presumptive death may file a petition for certiorari with the CA on the ground that, in
rendering judgment thereon, the trial court committed grave abuse of discretion amounting to lack of
jurisdiction. From the decision of the CA, the aggrieved party may elevate the matter to this Court via a
petition for review on certiorari under Rule 45 of the Rules of Court.
Evidently then, the CA did not commit any error in dismissing the Republics Notice of Appeal on
the ground that the RTC judgment on the Petition for Declaration of Presumptive Death of respondents
spouse was immediately final and executory and, hence, not subject to ordinary appeal.
2. On whether the CA seriously erred in affirming the
RTCs grant of the Petition for Declaration of Presumptive
Death under Article 41 of the Family Code based on the
evidence that respondent had presented
Petitioner also assails the RTCs grant of the Petition for Declaration of Presumptive Death of the
absent spouse of respondent on the ground that she had not adduced the evidence required to
establish a well-founded belief that her absent spouse was already dead, as expressly required by Article
41 of the Family Code. Petitioner citesRepublic v. Nolasco,
[10]
United States v. Biasbas
[11]
and Republic v.
Court of Appeals and Alegro
[12]
as authorities on the subject.
In Nolasco, petitioner Republic sought the reversal of the CAs affirmation of the RTCs grant of
respondents Petition for Declaration of Presumptive Death of his absent spouse, a British subject who
131

left their home in the Philippines soon after giving birth to their son while respondent was on board a
vessel working as a seafarer. Petitioner Republic sought the reversal of the ruling on the ground that
respondent was not able to establish
his well-founded belief that the absentee is already dead, as required by Article 41 of the Family Code.
In ruling thereon, this Court recognized that this provision imposes more stringent requirements than
does Article 83 of the Civil Code.
[13]
The Civil Code provision merely requires either that there be no
news that the absentee is still alive; or that the absentee is generally considered to be dead and is
believed to be so by the spouse present, or is presumed dead under Articles 390 and 391 of the Civil
Code. In comparison, the Family Code provision prescribes a well-founded belief that the absentee is
already dead before a petition for declaration of presumptive death can be granted. As noted by the
Court in that case, the four requisites for the declaration of presumptive death under the Family Code
are as follows:
1. That the absent spouse has been missing for four consecutive years, or two
consecutive years if the disappearance occurred where there is danger of death
under the circumstances laid down in Article 391, Civil Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief that the absentee is dead; and
4. That the present spouse files a summary proceeding for the declaration of
presumptive death of the absentee.
In evaluating whether the present spouse has been able to prove the existence of a well-
founded belief that the absent spouse is already dead, the Court in Nolascocited United States v.
Biasbas,
[14]
which it found to be instructive as to the diligence required in searching for a missing spouse.


132

In Biasbas, the Court held that defendant Biasbas failed to exercise due diligence in ascertaining
the whereabouts of his first wife, considering his admission that that he only had a suspicion that she
was dead, and that the only basis of that suspicion was the fact of her absence.
Similarly, in Republic v. Court of Appeals and Alegro, petitioner Republic sought the reversal of
the CA ruling affirming the RTCs grant of the Petition for Declaration of Presumptive Death of the
absent spouse on the ground that the respondent therein had not been able to prove a well-founded
belief that his spouse was already dead. The Court reversed the CA, granted the Petition, and provided
the following criteria for determining the existence of a well-founded belief under Article 41 of the
Family Code:
For the purpose of contracting the subsequent marriage under the preceding
paragraph, the spouse present must institute a summary proceeding as provided in this
Code for the declaration of presumptive death of the absentee, without prejudice to the
effect of reappearance of the absent spouse.

The spouse present is, thus, burdened to prove that his spouse has been absent
and that he has a well-founded belief that the absent spouse is already dead before the
present spouse may contract a subsequent marriage. The law does not define what is
meant by a well-grounded belief. Cuello Callon writes that es menester que su creencia
sea firme se funde en motivos racionales.

Belief is a state of the mind or condition prompting the doing of an overt act. It
may be proved by direct evidence or circumstantial evidence which may tend, even in a
slight degree, to elucidate the inquiry or assist to a determination probably founded in
truth. Any fact or circumstance relating to the character, habits, conditions,
attachments, prosperity and objects of life which usually control the conduct of men,
and are the motives of their actions, was, so far as it tends to explain or characterize
their disappearance or throw light on their intentions, competence [sic] evidence on the
ultimate question of his death.

The belief of the present spouse must be the result of proper and honest to
goodness inquiries and efforts to ascertain the whereabouts of the absent spouse and
whether the absent spouse is still alive or is already dead. Whether or not the spouse
present acted on a well-founded belief of
death of the absent spouse depends upon the inquiries to be drawn from a great many
circumstances occurring before and after the disappearance of the absent spouse and
the nature and extent of the inquiries made by present spouse. (Footnotes omitted,
underscoring supplied.)
133

Applying the foregoing standards to the present case, petitioner points out that respondent
Yolanda did not initiate a diligent search to locate her absent husband. While her brother Diosdado
Cadacio testified to having inquired about the whereabouts of Cyrus from the latters relatives, these
relatives were not presented to corroborate Diosdados testimony. In short, respondent was allegedly
not diligent in her search for her husband. Petitioner argues that if she were, she would have sought
information from the Taiwanese Consular Office or assistance from other government agencies in
Taiwan or the Philippines. She could have also utilized mass media for this end, but she did not. Worse,
she failed to explain these omissions.
The Republics arguments are well-taken. Nevertheless, we are constrained to deny the Petition.
The RTC ruling on the issue of whether respondent was able to prove her well-founded belief
that her absent spouse was already dead prior to her filing of the Petition to declare him presumptively
dead is already final and can no longer be modified or reversed. Indeed, *n+othing is more settled in law
than that when a judgment becomes final and executory, it becomes immutable and unalterable. The
same may no longer be modified in any respect, even if the modification is meant to correct what is
perceived to be an erroneous conclusion of fact or law.
[15]

WHEREFORE, premises considered, the assailed Resolutions of the Court of Appeals dated 23
January 2009 and 3 April 2009 in CA-G.R. CV No. 90165 areAFFIRMED.
SO ORDERED.
134

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 165545 March 24, 2006
SOCIAL SECURITY SYSTEM, Petitioner,
vs.
TERESITA JARQUE VDA. DE BAILON, Respondent.
D E C I S I O N
CARPIO MORALES,J.:
The Court of Appeals Decision
1
dated June 23, 2004
2
and Resolution dated September 28,
2004
3
reversing the Resolution dated April 2, 2003
4
and Order dated June 4, 2003
5
of the Social Security
Commission (SSC) in SSC Case No. 4-15149-01 are challenged in the present petition for review on
certiorari.
On April 25, 1955, Clemente G. Bailon (Bailon) and Alice P. Diaz (Alice) contracted marriage in Barcelona,
Sorsogon.
6

More than 15 years later or on October 9, 1970, Bailon filed before the then Court of First Instance (CFI)
of Sorsogon a petition
7
to declare Alice presumptively dead.
By Order of December 10, 1970,
8
the CFI granted the petition, disposing as follows:
WHEREFORE, there being no opposition filed against the petition notwithstanding the publication of the
Notice of Hearing in a newspaper of general circulation in the country, Alice Diaz is hereby declared to
[sic] all legal intents and purposes, except for those of succession, presumptively dead.
SO ORDERED.
9
(Underscoring supplied)
Close to 13 years after his wife Alice was declared presumptively dead or on August 8, 1983, Bailon
contracted marriage with Teresita Jarque (respondent) in Casiguran, Sorsogon.
10

On January 30, 1998, Bailon, who was a member of the Social Security System (SSS) since 1960 and a
retiree pensioner thereof effective July 1994, died.
11

Respondent thereupon filed a claim for funeral benefits, and was granted P12,000
12
by the SSS.
Respondent filed on March 11, 1998 an additional claim for death benefits
13
which was also granted by
the SSS on April 6, 1998.
14

135

Cecilia Bailon-Yap (Cecilia), who claimed to be a daughter of Bailon and one Elisa Jayona (Elisa)
contested before the SSS the release to respondent of the death and funeral benefits. She claimed that
Bailon contracted three marriages in his lifetime, the first with Alice, the second with her mother Elisa,
and the third with respondent, all of whom are still alive; she, together with her siblings, paid for
Bailons medical and funeral expenses; and all the documents submitted by respondent to the SSS in
support of her claims are spurious.
In support of her claim, Cecilia and her sister Norma Bailon Chavez (Norma) submitted an Affidavit dated
February 13, 1999
15
averring that they are two of nine children of Bailon and Elisa who cohabited as
husband and wife as early as 1958; and they were reserving their right to file the necessary court action
to contest the marriage between Bailon and respondent as they personally know that Alice is "still very
much alive."
16

In the meantime, on April 5, 1999, a certain Hermes P. Diaz, claiming to be the brother and guardian of
"Aliz P. Diaz," filed before the SSS a claim for death benefits accruing from Bailons death,
17
he further
attesting in a sworn statement
18
that it was Norma who defrayed Bailons funeral expenses.
Elisa and seven of her children
19
subsequently filed claims for death benefits as Bailons beneficiaries
before the SSS.
20

Atty. Marites C. de la Torre of the Legal Unit of the SSS Bicol Cluster, Naga City recommended the
cancellation of payment of death pension benefits to respondent and the issuance of an order for the
refund of the amount paid to her from February 1998 to May 1999 representing such benefits; the
denial of the claim of Alice on the ground that she was not dependent upon Bailon for support during his
lifetime; and the payment of the balance of the five-year guaranteed pension to Bailons beneficiaries
according to the order of preference provided under the law, after the amount erroneously paid to
respondent has been collected. The pertinent portions of the Memorandum read:
1. Aliz [sic] Diaz never disappeared. The court must have been misled by misrepresentation in
declaring the first wife, Aliz [sic] Diaz, as presumptively dead.
x x x x
x x x the Order of the court in the "Petition to Declare Alice Diaz Presumptively Dead," did not
become final. The presence of Aliz [sic] Diaz, is contrary proof that rendered it invalid.
x x x x
3. It was the deceased member who abandoned his wife, Aliz [sic] Diaz. He, being in bad faith,
and is the deserting spouse, his remarriage is void, being bigamous.
x x x x
In this case, it is the deceased member who was the deserting spouse and who remarried, thus his
marriage to Teresita Jarque, for the second time was void as it was bigamous. To require affidavit of
reappearance to terminate the second marriage is not necessary as there is no disappearance of Aliz
[sic] Diaz, the first wife, and a voidable marriage [sic], to speak of.
21
(Underscoring supplied)
136

In the meantime, the SSS Sorsogon Branch, by letter of August 16, 2000,
22
advised respondent that as
Cecilia and Norma were the ones who defrayed Bailons funeral expenses, she should return
the P12,000 paid to her.
In a separate letter dated September 7, 1999,
23
the SSS advised respondent of the cancellation of her
monthly pension for death benefits in view of the opinion rendered by its legal department that her
marriage with Bailon was void as it was contracted while the latters marriage with Alice was still
subsisting; and the December 10, 1970 CFI Order declaring Alice presumptively dead did not become
final, her "presence" being "contrary proof" against the validity of the order. It thus requested
respondent to return the amount of P24,000 representing the total amount of monthly pension she had
received from the SSS from February 1998 to May 1999.
Respondent protested the cancellation of her monthly pension for death benefits by letter to the SSS
dated October 12, 1999.
24
In a subsequent letter dated November 27, 1999
25
to the SSC, she reiterated
her request for the release of her monthly pension, asserting that her marriage with Bailon was not
declared before any court of justice as bigamous or unlawful, hence, it remained valid and subsisting for
all legal intents and purposes as in fact Bailon designated her as his beneficiary.
The SSS, however, by letter to respondent dated January 21, 2000,
26
maintained the denial of her claim
for and the discontinuance of payment of monthly pension. It advised her, however, that she was not
deprived of her right to file a petition with the SSC.
Respondent thus filed a petition
27
against the SSS before the SSC for the restoration to her of her
entitlement to monthly pension.
In the meantime, respondent informed the SSS that she was returning, under protest, the amount
of P12,000 representing the funeral benefits she received, she alleging that Norma and her siblings
"forcibly and coercively prevented her from spending any amount during Bailons wake."
28

After the SSS filed its Answer
29
to respondents petition, and the parties filed their respective Position
Papers, one Alicia P. Diaz filed an Affidavit
30
dated August 14, 2002 with the SSS Naga Branch attesting
that she is the widow of Bailon; she had only recently come to know of the petition filed by Bailon to
declare her presumptively dead; it is not true that she disappeared as Bailon could have easily located
her, she having stayed at her parents residence in Barcelona, Sorsogon after she found out that Bailon
was having an extramarital affair; and Bailon used to visit her even after their separation.
By Resolution of April 2, 2003, the SSC found that the marriage of respondent to Bailon was void and,
therefore, she was "just a common-law-wife." Accordingly it disposed as follows, quoted verbatim:
WHEREFORE, this Commission finds, and so holds, that petitioner Teresita Jarque-Bailon is not the
legitimate spouse and primary beneficiary of SSS member Clemente Bailon.
Accordingly, the petitioner is hereby ordered to refund to the SSS the amount of P24,000.00
representing the death benefit she received therefrom for the period February 1998 until May 1999 as
well as P12,000.00 representing the funeral benefit.
137

The SSS is hereby ordered to pay Alice (a.k.a. Aliz) Diaz-Bailon the appropriate death benefit arising from
the demise of SSS member Clemente Bailon in accordance with Section 8(e) and (k) as well as Section 13
of the SS Law, as amended, and its prevailing rules and regulations and to inform this Commission of its
compliance herewith.
SO ORDERED.
31
(Underscoring supplied)
In so ruling against respondent, the SSC ratiocinated.
After a thorough examination of the evidence at hand, this Commission comes to the inevitable
conclusion that thepetitioner is not the legitimate wife of the deceased member.
x x x x
There is x x x ample evidence pointing to the fact that, contrary to the declaration of the then CFI of
Sorsogon (10th Judicial District), the first wife never disappeared as the deceased member represented
in bad faith. This Commission accords credence to the findings of the SSS contained in its Memorandum
dated August 9, 1999,
32
revealing that Alice (a.k.a. Aliz) Diaz never left Barcelona, Sorsogon, after her
separation from Clemente Bailon x x x.
As the declaration of presumptive death was extracted by the deceased member using artifice and by
exerting fraud upon the unsuspecting court of law, x x x it never had the effect of giving the deceased
member the right to marry anew. x x x [I]t is clear that the marriage to the petitioner is void, considering
that the first marriage on April 25, 1955 to Alice Diaz was not previously annulled, invalidated or
otherwise dissolved during the lifetime of the parties thereto. x x x as determined through the
investigation conducted by the SSS, Clemente Bailon was the abandoning spouse, not Alice Diaz Bailon.
x x x x
It having been established, by substantial evidence, that the petitioner was just a common-law wife of
the deceased member, it necessarily follows that she is not entitled as a primary beneficiary, to the
latters death benefit. x x x
x x x x
It having been determined that Teresita Jarque was not the legitimate surviving spouse and primary
beneficiary of Clemente Bailon, it behooves her to refund the total amount of death benefit she
received from the SSS for the period from February 1998 until May 1999 pursuant to the principle
of solutio indebiti x x x
Likewise, it appearing that she was not the one who actually defrayed the cost of the wake and burial of
Clemente Bailon, she must return the amount of P12,000.00 which was earlier given to her by the SSS as
funeral benefit.
33
(Underscoring supplied)
Respondents Motion for Reconsideration
34
having been denied by Order of June 4, 2003, she filed a
petition for review
35
before the Court of Appeals (CA).
138

By Decision of June 23, 2004, the CA reversed and set aside the April 2, 2003 Resolution and June 4,
2003 Order of the SSC and thus ordered the SSS to pay respondent all the pension benefits due her.
Held the CA:
x x x [T]he paramount concern in this case transcends the issue of whether or not the decision of the
then CFI, now RTC, declaring Alice Diaz presumptively dead has attained finality but, more
importantly, whether or not the respondents SSS and Commission can validly re-evaluate the findings of
the RTC, and on its own, declare the latters decision to be bereft of any basis. On similar import, can
respondents SSS and Commission validly declare the first marriage subsisting and the second marriage
null and void?
x x x x
x x x while it is true that a judgment declaring a person presumptively dead never attains finality as the
finding that "the person is unheard of in seven years is merely a presumption juris tantum," the second
marriage contracted by a person with an absent spouse endures until annulled. It is only the competent
court that can nullify the second marriage pursuant to Article 87 of the Civil Code and upon the
reappearance of the missing spouse, which action for annulment may be filed. Nowhere does the law
contemplates [sic] the possibility that respondent SSS may validly declare the second marriage null and
void on the basis alone of its own investigation and declare that the decision of the RTC declaring one to
be presumptively dead is without basis.
Respondent SSS cannot arrogate upon itself the authority to review the decision of the regular
courts under the pretext of determining the actual and lawful beneficiaries of its members.
Notwithstanding its opinion as to the soundness of the findings of the RTC, it should extend due
credence to the decision of the RTC absent of [sic] any judicial pronouncement to the contrary. x x x
x x x [A]ssuming arguendo that respondent SSS actually possesses the authority to declare the decision
of the RTC to be without basis, the procedure it followed was offensive to the principle of fair play and
thus its findings are of doubtful quality considering that petitioner Teresita was not given ample
opportunity to present evidence for and her behalf.
x x x x
Respondent SSS is correct in stating that the filing of an Affidavit of Reappearance with the Civil Registry
is no longer practical under the premises. Indeed, there is no more first marriage to restore as the
marital bond between Alice Diaz and Clemente Bailon was already terminated upon the latters death.
Neither is there a second marriage to terminate because the second marriage was likewise dissolved by
the death of Clemente Bailon.
However, it is not correct to conclude that simply because the filing of the Affidavit of Reappearance
with the Civil Registry where parties to the subsequent marriage reside is already inutile, the respondent
SSS has now the authority to review the decision of the RTC and consequently declare the second
marriage null and void.
36
(Emphasis and underscoring supplied)
The SSC and the SSS separately filed their Motions for Reconsideration
37
which were both denied for
lack of merit.
139

Hence, the SSS present petition for review on certiorari
38
anchored on the following grounds:
I
THE DECISION OF THE HONORABLE COURT OF APPEALS IS CONTRARY TO LAW.
II
THE HONORABLE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OF
JURISDICTION.
39

The SSS faults the CA for failing to give due consideration to the findings of facts of the SSC on the prior
and subsisting marriage between Bailon and Alice; in disregarding the authority of the SSC to determine
to whom, between Alice and respondent, the death benefits should be awarded pursuant to Section
5
40
of the Social Security Law; and in declaring that the SSS did not give respondent due process or
ample opportunity to present evidence in her behalf.
The SSS submits that "the observations and findings relative to the CFI proceedings are of no moment to
the present controversy, as the same may be considered only as obiter dicta in view of the SSCs finding
of the existence of a prior and subsisting marriage between Bailon and Alice by virtue of which Alice has
a better right to the death benefits."
41

The petition fails.
That the SSC is empowered to settle any dispute with respect to SSS coverage, benefits and
contributions, there is no doubt. In so exercising such power, however, it cannot review, much less
reverse, decisions rendered by courts of law as it did in the case at bar when it declared that the
December 10, 1970 CFI Order was obtained through fraud and subsequently disregarded the same,
making its own findings with respect to the validity of Bailon and Alices marriage on the one hand and
the invalidity of Bailon and respondents marriage on the other.
In interfering with and passing upon the CFI Order, the SSC virtually acted as an appellate court. The law
does not give the SSC unfettered discretion to trifle with orders of regular courts in the exercise of its
authority to determine the beneficiaries of the SSS.
The two marriages involved herein having been solemnized prior to the effectivity on August 3, 1988 of
the Family Code, the applicable law to determine their validity is the Civil Code which was the law in
effect at the time of their celebration.
42

Article 83 of the Civil Code
43
provides:
Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of
such person with any person other than such first spouse shall be illegal and void from its performance,
unless:
(1) The first marriage was annulled or dissolved; or
140

(2) The first spouse had been absent for seven consecutive years at the time of the second
marriage without the spouse present having news of the absentee being alive, or if the
absentee, though he has been absent for less than seven years, is generally considered as dead
and believed to be so by the spouse present at the time of contracting such subsequent
marriage, or if the absentee is presumed dead according to Articles 390 and 391. The marriage
so contracted shall be valid in any of the three cases until declared null and void by a
competent court. (Emphasis and underscoring supplied)
Under the foregoing provision of the Civil Code, a subsequent marriage contracted during the lifetime of
the first spouse is illegal and void ab initio unless the prior marriage is first annulled or dissolved or
contracted under any of the three exceptional circumstances. It bears noting that the marriage under
any of these exceptional cases is deemed valid "until declared null and void by a competent court." It
follows that the onus probandi in these cases rests on the party assailing the second marriage.
44

In the case at bar, as found by the CFI, Alice had been absent for 15 consecutive years
45
when Bailon
sought the declaration of her presumptive death, which judicial declaration was not even a requirement
then for purposes of remarriage.
46

Eminent jurist Arturo M. Tolentino (now deceased) commented:
Where a person has entered into two successive marriages, a presumption arises in favor of the validity
of the second marriage, and the burden is on the party attacking the validity of the second marriage to
prove that the first marriage had not been dissolved; it is not enough to prove the first marriage, for it
must also be shown that it had not ended when the second marriage was contracted. The presumption
in favor of the innocence of the defendant from crime or wrong and of the legality of his second
marriage, will prevail over the presumption of the continuance of life of the first spouse or of the
continuance of the marital relation with such first spouse.
47
(Underscoring supplied)
Under the Civil Code, a subsequent marriage being voidable,
48
it is terminated by final judgment of
annulment in a case instituted by the absent spouse who reappears or by either of the spouses in the
subsequent marriage.
Under the Family Code, no judicial proceeding to annul a subsequent marriage is necessary. Thus Article
42 thereof provides:
Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated
by therecording of the affidavit of reappearance of the absent spouse, unless there is a judgment
annulling the previous marriage or declaring it void ab initio.
A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry
of the residence of the parties to the subsequent marriage at the instance of any interested
person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of
reappearance being judicially determined in case such fact is disputed. (Emphasis and underscoring
supplied)
141

The termination of the subsequent marriage by affidavit provided by the above-quoted provision of the
Family Code does not preclude the filing of an action in court to prove the reappearance of the absentee
and obtain a declaration of dissolution or termination of the subsequent marriage.
49

If the absentee reappears, but no step is taken to terminate the subsequent marriage, either by affidavit
or by court action, such absentees mere reappearance, even if made known to the spouses in the
subsequent marriage, will not terminate such marriage.
50
Since the second marriage has been
contracted because of a presumption that the former spouse is dead, such presumption continues
inspite of the spouses physical reappearance, and by fiction of law, he or she must still be regarded as
legally an absentee until the subsequent marriage is terminated as provided by law.
51

If the subsequent marriage is not terminated by registration of an affidavit of reappearance or by
judicial declaration but by death of either spouse as in the case at bar, Tolentino submits:
x x x [G]enerally if a subsequent marriage is dissolved by the death of either spouse, the effects of
dissolution of valid marriages shall arise. The good or bad faith of either spouse can no longer be raised,
because, as in annullable or voidable marriages, the marriage cannot be questioned except in a direct
action for annulment.
52
(Underscoring supplied)
Similarly, Lapuz v. Eufemio
53
instructs:
In fact, even if the bigamous marriage had not been void ab initio but only voidable under Article 83,
paragraph 2, of the Civil Code, because the second marriage had been contracted with the first wife
having been an absentee for seven consecutive years, or when she had been generally believed dead,
still the action for annulment became extinguished as soon as one of the three persons involved had
died, as provided in Article 87, paragraph 2, of the Code, requiring that the action for annulment should
be brought during the lifetime of any one of the parties involved. And furthermore, the liquidation of
any conjugal partnership that might have resulted from such voidable marriage must be carried out "in
the testate or intestate proceedings of the deceased spouse," as expressly provided in Section 2 of the
Revised Rule 73, and not in the annulment proceeding.
54
(Emphasis and underscoring supplied)
It bears reiterating that a voidable marriage cannot be assailed collaterally except in a direct proceeding.
Consequently, such marriages can be assailed only during the lifetime of the parties and not after the
death of either, in which case the parties and their offspring will be left as if the marriage had been
perfectly valid.
55
Upon the death of either, the marriage cannot be impeached, and is made good ab
initio.
56

In the case at bar, as no step was taken to nullify, in accordance with law, Bailons and respondents
marriage prior to the formers death in 1998, respondent is rightfully the dependent spouse-beneficiary
of Bailon.
In light of the foregoing discussions, consideration of the other issues raised has been rendered
unnecessary.
WHEREFORE, the petition is DENIED.
No costs.
142

SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice
WE CONCUR:
(ON OFFICIAL LEAVE)
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
ANTONIO T. CARPIO
Associate Justice
Acting Chairperson
DANTE O. TINGA
Associate Justice
A T T E S T A T I O N
I attest that the conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.
ANTONIO T. CARPIO
Associate Justice
Acting Chairperson
C E R T I F I C A T I O N
Pursuant to Article VIII, Section 13 of the Constitution, and the Division Acting Chairpersons Attestation,
it is hereby certified that the conclusions in the above Decision were reached in consultation before the
case was assigned to the writer of the opinion of the Court.
ARTEMIO V. PANGANIBAN
Chief Justice

143

Buccat v Buccat de Mangonon GR No. 47101 April 25, 1941

GODOFREDO BUCCAT
, plaintiff-appellant,vs.
LUIDA MANGONON DE BUCCAT,
defendant-respondent.
HORRILLENO,
J.:
FACTS:1. I t was establ i shed before the tri al court: a. The Pl ai nti f f met the def endant i n
March 1938b. After several i ntervi ews, both were commi tted on September 19 of
that year c . O n N o v e m b e r 2 6 t h e s a m e y e a r ,
t h e p l a i n t i f f m a r r i e d t h e d e f e n d a n t i n a Catholic Cathedral in
Baguiod. They, then, cohabi ted for about ei ghty- ni ne dayse. Defendant gave bi rth to a
chi l d of ni ne months on February 23, 1939f. Fol l owi ng thi s event, Pl ai nti f f and
Def endant separated. 2. On March 20, 1939 the pl ai nti f f f i l ed an acti on f or annul ment
of marri age before theCFI of Baguio City. The plaintiff claimed that he consented to the marriage
becausethe defendant assured him that she was virgin.3. The tri al court di smi ssed the
compl ai nt. Hence, thi s appeal . BASI CALLY: Godof redo Buccat (Pl ai nti f f) and Lui da
Mangonon (Defendant) got marri ed onNovember 26, 1938. Luida gave birth after 89 days and
on March 20, 1939 Godofredo filedfor annulment of marriage before the CFI because he was led to
believe by Luida that shewas a virgin. The trial court dismissed the complaint, so Godofredo appealed.

ISSUE: Whether or not there was fraud in obtaining the consent of Plaintiff to the marriage?

DECISION: There is no fraud because: The Supreme Court states that: We see no reason to overturn
the ruling appealed. It isunl i kel y that the pl ai nti f f , Godofredo, had not suspected
that the def endant, Lui da, waspregnant. (As she gave bi rth l ess than 3 months after
they got marri ed, she must havelooked very pregnant even before they were married.) Since
Godofredo must have knownthat she was not a virgin, the marriage cannot be annulled. The Sacred
Marriage is an institution: it is the foundation on which society rests. To cancel it,reliable evidence is
necessary.*Consent freely given: ARTICLE 4 and 45 FC
144

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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.
145

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 common-law
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
146

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.



147

Republic of the Philippines
Supreme Court
Manila

THIRD DIVISION


MANUEL G. ALMELOR, G.R. No. 179620
Petitioner,
Present:

YNARES-SANTIAGO, J.,
- versus - Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
THE HON. REGIONAL TRIAL REYES, JJ.
COURT OF LAS PIAS CITY,
BRANCH 254, and Promulgated:
LEONIDA T. ALMELOR,
Respondent. August 26, 2008

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x


D E C I S I O N


REYES, R.T., J.:


MARRIAGE, in its totality, involves the spouses right to the community of their whole lives. It
likewise involves a true intertwining of personalities.
[1]


This is a petition for review on certiorari of the Decision
[2]
of the Court of Appeals (CA) denying
the petition for annulment of judgment and affirming in toto thedecision of the Regional Trial Court
148

(RTC), Las Pias, Branch 254. The CA dismissed outright the Rule 47 petition for being the wrong
remedy.

The Facts

Petitioner Manuel G. Almelor (Manuel) and respondent Leonida Trinidad (Leonida) were
married on January 29, 1989 at the Manila Cathedral.
[3]
Their union bore three children: (1) Maria
Paulina Corinne, born on October 20, 1989; (2) Napoleon Manuel, born on August 9, 1991; and (3)
Manuel Homer, born on July 4, 1994.
[4]
Manuel and Leonida are both medical practitioners, an
anesthesiologist and a pediatrician, respectively.
[5]


After eleven (11) years of marriage, Leonida filed a petition with the RTC in Las Pias City to
annul their marriage on the ground that Manuel was psychologically incapacitated to perform his
marital obligations. The case, docketed as LP-00-0132 was raffled off to Branch 254.

During the trial, Leonida testified that she first met Manuel in 1981 at the San Lazaro Hospital
where they worked as medical student clerks. At that time, she regarded Manuel as a very thoughtful
person who got along well with other people. They soon became sweethearts. Three years after, they
got married.
[6]


Leonida averred that Manuels kind and gentle demeanor did not last long. In the public eye,
Manuel was the picture of a perfect husband and father. This was not the case in his private life. At
149

home, Leonida described Manuel as a harsh disciplinarian, unreasonably meticulous, easily
angered. Manuels unreasonable way of imposing discipline on their children was the cause of their
frequent fights as a couple.
[7]
Leonida complained that this was in stark contrast to the alleged lavish
affection Manuel has for his mother. Manuels deep attachment to his mother and his dependence on
her decision-making were incomprehensible to Leonida.
[8]


Further adding to her woes was his concealment to her of his homosexuality. Her
suspicions were first aroused when she noticed Manuels peculiar closeness to his male
companions. For instance, she caught him in an indiscreet telephone conversation manifesting his
affection for a male caller.
[9]
She also found several pornographic homosexual materials in his
possession.
[10]
Her worse fears were confirmed when she saw Manuel kissed another man on the lips.
The man was a certain Dr. Nogales.
[11]
When she confronted Manuel, he denied everything. At this point,
Leonida took her children and left their conjugal abode. Since then, Manuel stopped giving support to
their children.
[12]


Dr. Valentina del Fonso Garcia, a clinical psychologist, was presented to prove Leonidas
claim. Dr. del Fonso Garcia testified that she conducted evaluative interviews and a battery of
psychiatric tests on Leonida. She also had a one-time interview with Manuel and face-to-face interviews
with Ma. Paulina Corrinne (the eldest child).
[13]
She concluded that Manuel is psychologically
incapacitated.
[14]
Such incapacity is marked by antecedence; it existed even before the marriage and
appeared to be incurable.

150

Manuel, for his part, admitted that he and Leonida had some petty arguments here and
there. He, however, maintained that their marital relationship was generally harmonious. The petition
for annulment filed by Leonida came as a surprise to him.

Manuel countered that the true cause of Leonidas hostility against him was their professional
rivalry. It began when he refused to heed the memorandum
[15]
released by Christ the King Hospital. The
memorandum ordered him to desist from converting his own lying-in clinic to a primary or secondary
hospital.
[16]
Leonidas family owns Christ the King Hospital which is situated in the same subdivision as
Manuels clinic and residence.
[17]
In other words, he and her family have competing or rival hospitals in
the same vicinity.

Manuel belied her allegation that he was a cruel father to their children. He denied maltreating
them. At most, he only imposed the necessary discipline on thechildren.

He also defended his show of affection for his mother. He said there was nothing wrong for
him to return the love and affection of the person who reared and looked after him and his
siblings. This is especially apt now that his mother is in her twilight years.
[18]
Manuel pointed out that
Leonida found fault in this otherwise healthy relationship because of her very jealous
and possessive nature.
[19]


This same overly jealous behavior of Leonida drove Manuel to avoid the company of female
friends. He wanted to avoid any further misunderstanding with his wife. But, Leonida instead conjured
151

up stories about his sexual preference. She also fabricated tales about pornographic materials found in
his possession to cast doubt on his masculinity.
[20]



To corroborate his version, he presented his brother, Jesus G. Almelor. Jesus narrated that
he usually stayed at Manuels house during his weekly trips to Manila fromIriga City. He was a witness
to the generally harmonious relationship between his brother Manuel and sister-in-law, Leonida. True,
they had some quarrels typical of a husband and wife relationship. But there was nothing similar to
what Leonida described in her testimony.
[21]


Jesus further testified that he was with his brother on the day Leonida allegedly saw Manuel
kissed another man. He denied that such an incident occurred. On that particular date,
[22]
he and
Manuel went straight home from a trip to Bicol. There was no other person with them at that time,
except their driver.
[23]


Manuel expressed his intention to refute Dr. del Fonso Garcias findings by presenting his own
expert witness. However, no psychiatrist was presented.

RTC Disposition

152

By decision dated November 25, 2005, the RTC granted the petition for annulment, with the
following disposition:

WHEREFORE, premised on the foregoing, judgment is hereby rendered:

1. Declaring the marriage contracted by herein parties on 29 January
1989 and all its effects under the law null and void from the
beginning;

2. Dissolving the regime of community property between the same
parties with forfeiture of defendants share thereon in favor of the
same parties children whose -legal custody is awarded to plaintiff
with visitorial right afforded to defendant;

3. Ordering the defendant to give monthly financial support to all the
children; and

4. Pursuant to the provisions of A.M. No. 02-11-10-SC:

a. Directing the Branch Clerk of this Court to enter this
Judgment upon its finality in the Book of Entry of
Judgment and to issue an Entry of Judgment in
accordance thereto; and

b. Directing the Local Civil Registrars of Las Pias City
and Manila City to cause the registration of the said Entry
of Judgment in their respective Books of Marriages.

Upon compliance, a decree of nullity of marriage shall be issued.

SO ORDERED.
[24]
(Emphasis supplied)
153


The trial court nullified the marriage, not on the ground of Article 36, but Article 45 of the Family
Code. It ratiocinated:

x x x a careful evaluation and in-depth analysis of the surrounding
circumstances of the allegations in the complaint and of the evidence presented in
support thereof (sic) reveals that in this case (sic) there is more than meets the eyes
(sic).

Both legally and biologically, homosexuality x x x is, indeed, generally
incompatible with hetero sexual marriage. This is reason enough that in this jurisdiction
(sic) the law recognizes marriage as a special contract exclusively only between a man
and a woman x x x and thus when homosexuality has trespassed into marriage, the
same law provides ample remedies to correct the situation [Article 45(3) in relation to
Article 46(4) or Article 55, par. 6, Family Code]. This is of course in recognition of the
biological fact that no matter how a man cheats himself that he is not a homosexual and
forces himself to live a normal heterosexual life, there will surely come a time when his
true sexual preference as a homosexual shall prevail in haunting him and thus
jeopardizing the solidity, honor, and welfare of his own family.
[25]


Manuel filed a notice of appeal which was, however, denied due course. Undaunted, he filed a
petition for annulment of judgment with the CA.
[26]


Manuel contended that the assailed decision was issued in excess of the lower courts
jurisdiction; that it had no jurisdiction to dissolve the absolute community of property and forfeit his
conjugal share in favor of his children.

154

CA Disposition

On July 31, 2007, the CA denied the petition, disposing as follows:

WHEREFORE, the present Petition for Annulment of Judgment is hereby
DENIED. The Court AFFIRMS in toto the Decision (dated November 25, 2005) of the
Regional Trial Court (Branch 254), in Las Pias City, in Civil Case No. LP-00-0132. No
costs.
[27]


The CA stated that petitioner pursued the wrong remedy by filing the extraordinary remedy of
petition for annulment of judgment. Said the appellate court:

It is obvious that the petitioner is questioning the propriety of the decision
rendered by the lower Court. But the remedy assuming there was a mistake is not a
Petition for Annulment of Judgment but an ordinary appeal. An error of judgment may
be reversed or corrected only by appeal.

What petitioner is ascribing is an error of judgment, not of jurisdiction, which is
properly the subject of an ordinary appeal.

In short, petitioner admits the jurisdiction of the lower court but he claims
excess in the exercise thereof. Excess assuming there was is not covered by Rule 47 of
the 1997 Rules of Civil Procedure. The Rule refers the lack of jurisdiction and not the
exercise thereof.
[28]


Issues
155


Petitioner Manuel takes the present recourse via Rule 45, assigning to the CA the following
errors:


I
THE HONORABLE COURT OF APPEALS ERRED IN NOT TREATING THE PETITION FOR
ANNULMENT OF JUDGMENT AS A PETITION FOR REVIEW IN VIEW OF THE IMPORTANCE
OF THE ISSUES INVOLVED AND IN THE INTEREST OF JUSTICE;

II
THE HONORABLE COURT OF APPEALS ERRED IN UPHOLDING THE DECISION OF THE
TRIAL COURT AS REGARDS THE ORDER DECLARING THE MARRIAGE AS NULL ANDVOID
ON THE GROUND OF PETITIONERS PSYCHOLOGICAL INCAPACITY;

III
THE HONORABLE COURT OF APPEALS ERRED IN UPHOLDING THE DECISION OF THE
TRIAL COURT AS REGARDS THE ORDER TO FORFEIT THE SHARE OF PETITIONER IN HIS
SHARE OF THE CONJUGAL ASSETS.
[29]


Our Ruling

I. The stringent rules of procedures may be relaxed to serve the demands of substantial justice and
in the Courts exercise of equity jurisdiction.

156

Generally, an appeal taken either to the Supreme Court or the CA by the wrong or inappropriate
mode shall be dismissed.
[30]
This is to prevent the party from benefiting from ones neglect
and mistakes. However, like most rules, it carries certain exceptions. After all, the ultimate purpose of
all rules of procedures is to achieve substantial justice as expeditiously as possible.
[31]


Annulment of judgment under Rule 47 is a last remedy. It can not be resorted to if the ordinary
remedies are available or no longer available through no fault of petitioner.
[32]
However, in Buenaflor v.
Court of Appeals,
[33]
this Court clarified the proper appreciation for technical rules of procedure, in this
wise:

Rules of procedures are intended to promote, not to defeat, substantial justice
and, therefore, they should not be applied in a very rigid and technical sense. The
exception is that while the Rules are liberally construed, the provisions with respect to
the rules on the manner and periods for perfecting appeals are strictly applied. As an
exception to the exception, these rules have sometimes been relaxed on equitable
considerations. Also, in some cases the Supreme Court has given due course to an
appeal perfected out of time where a stringent application of the rules would have
denied it, but only when to do so would serve the demands of substantial justice and in
the exercise of equity jurisdiction of the Supreme Court.
[34]
(Emphasis and underscoring
supplied)

For reasons of justice and equity, this Court has allowed exceptions to the stringent rules
governing appeals.
[35]
It has, in the past, refused to sacrifice justice for technicality.
[36]


After discovering the palpable error of his petition, Manuel seeks the indulgence of this
Court to consider his petition before the CA instead as a petition for certiorariunder Rule 65.
157


A perusal of the said petition reveals that Manuel imputed grave abuse of discretion to the
lower court for annulling his marriage on account of his alleged homosexuality. This is not the first time
that this Court is faced with a similar situation. In Nerves v. Civil Service Commission,
[37]
petitioner Delia
R. Nerves elevated to the CA a Civil Service Commission (CSC) decision suspending her for six (6)
months. The CSC ruled Nerves, a public school teacher, is deemed to have already served her six-month
suspension during the pendency of the case. Nevertheless, she is ordered reinstated without back
wages. On appeal, Nerves stated in her petition, inter alia:

1. This is a petition for certiorari filed pursuant to Article IX-A, Section 7 of the
Constitution of the Philippines and under Rule 65 of the Rules of Court.

2. But per Supreme Court Revised Administrative Circular No. 1-95 (Revised Circular
No. 1-91) petitioner is filing the instant petition with this Honorable Court instead
of the Supreme Court.
[38]
(Underscoring supplied)

The CA dismissed Nerves petition for certiorari for being the wrong remedy or the inappropriate
mode of appeal.
[39]
The CA opined that under the Supreme Court Revised Administrative Circular No. 1-
95 x x x appeals from judgments or final orders or resolutions of CSC is by a petition for review.
[40]


This Court granted Nerves petition and held that she had substantially complied with the
Administrative Circular. The Court stated:

158

That it was erroneously labeled as a petition for certiorari under Rule 65 of the
Rules of Court is only a minor procedural lapse, not fatal to the appeal. x x x

More importantly, the appeal on its face appears to be impressed with
merit. Hence, the Court of Appeals should have overlooked the insubstantial defects of
the petition x x x in order to do justice to the parties concerned. There
is, indeed, nothing sacrosanct about procedural rules, which should be liberally
construed in order to promote their object and assist the parties in obtaining just,
speedy, and inexpensive determination of every action or proceeding. As it has been
said, where the rigid application of the rules would frustrate substantial justice, or bar
the vindication of a legitimate grievance, the courts are justified in exempting a
particular case from the operation of the rules.
[41]
(Underscoring supplied)

Similarly, in the more recent case of Tan v. Dumarpa,
[42]
petitioner Joy G. Tan availed of a wrong
remedy by filing a petition for review on certiorari instead of a motion for new trial or an ordinary
appeal. In the interest of justice, this Court considered the petition, pro hac vice, as a
petition for certiorari under Rule 65.

This Court found that based on Tans allegations, the trial court prima facie committed grave
abuse of discretion in rendering a judgment by default. If uncorrected, it will cause petitioner great
injustice. The Court elucidated in this wise:

Indeed, where as here, there is a strong showing that grave miscarriage of
justice would result from the strict application of the Rules, we will not hesitate to relax
the same in the interest of substantial justice.
[43]
(Underscoring supplied)

159

Measured by the foregoing yardstick, justice will be better served by giving due course to the
present petition and treating petitioners CA petition as one for certiorariunder Rule 65, considering
that what is at stake is the validity or non-validity of a
marriage.

In Salazar v. Court of Appeals,
[44]
citing Labad v. University of Southeastern Philippines, this Court
reiterated:

x x x The dismissal of appeals on purely technical grounds is frowned
upon. While the right to appeal is a statutory, not a natural right, nonetheless it is an
essential part of our judicial system and courts should proceed with caution so as not to
deprive a party of the right to appeal, but rather, ensure that every party-litigant has the
amplest opportunity for the proper and just disposition of his cause, free from the
constraints of technicalities.
[45]


Indeed, it is far better and more prudent for a court to excuse a technical lapse and afford the
parties a review of the case on the merits to attain the ends of justice.
[46]



Furthermore, it was the negligence and incompetence of Manuels counsel that prejudiced his
right to appeal. His counsel, Atty. Christine Dugenio, repeatedly availed of inappropriate
remedies. After the denial of her notice of appeal, she failed to move for reconsideration or new trial at
the first instance. She also erroneously filed a petition for annulment of judgment rather than pursue an
ordinary appeal.
160


These manifest errors were clearly indicative of counsels incompetence. These gravely worked
to the detriment of Manuels appeal. True it is that the negligence of counsel binds the client. Still, this
Court has recognized certain exceptions: (1) where reckless or gross negligence of counsel deprives the
client of due process of law; (2) when its application will result in outright deprivation of the clients
liberty and property; or (3) where the interest of justice so require.
[47]


The negligence of Manuels counsel falls under the exceptions. Ultimately, the reckless or
gross negligence of petitioners former counsel led to the loss of his right to appeal. He should not be
made to suffer for his counsels grave mistakes. Higher interests of justice and equity demand
that he be allowed to ventilate his case in a higher court.

In Apex Mining, Inc. v. Court of Appeals,
[48]
this Court explained thus:

It is settled that the negligence of counsel binds the client. This is based on the
rule that any act performed by a counsel within the scope of his general or implied
authority is regarded as an act of his client. However, where counsel is guilty of gross
ignorance, negligence and dereliction of duty, which resulted in the clients being held
liable for damages in a damage suit, the client is deprived of his day in court and the
judgment may be set aside on such ground. In the instant case, higher interests of justice
and equity demand that petitioners be allowed to present evidence on their
defense. Petitioners may not be made to suffer for the lawyers mistakes. This Court will
always be disposed to grant relief to parties aggrieved by perfidy, fraud, reckless
inattention and downright incompetence of lawyers, which has the consequence of
depriving their clients, of their day in court.
[49]
(Emphasis supplied)

161

Clearly, this Court has the power to except a particular case from the operation of the rule
whenever the demands of justice require it. With more conviction should itwield such power in a case
involving the sacrosanct institution of marriage. This Court is guided with the thrust of giving a party the
fullest opportunity to establish the merits of ones action.
[50]


The client was likewise spared from counsels negligence in Government Service Insurance System
v. Bengson Commercial Buildings, Inc.
[51]
and Ancheta v. Guersey-Dalaygon.
[52]
Said the
Court in Bengson:

But if under the circumstances of the case, the rule deserts its proper office as an
aid to justice and becomes a great hindrance and chief enemy, its rigors must be relaxed
to admit exceptions thereto and to prevent a miscarriage of justice. In other words, the
court has the power to except a particular case from the operation of the rule whenever
the purposes of justice require it.
[53]


II. Concealment of homosexuality is the proper ground to annul a marriage, not homosexuality per
se.

Manuel is a desperate man determined to salvage what remains of his marriage. Persistent in his
quest, he fought back all the heavy accusations of incapacity, cruelty, and doubted masculinity thrown
at him.

162

The trial court declared that Leonidas petition for nullity had no basis at all because the
supporting grounds relied upon can not legally make a case under Article 36 of the Family
Code. It went further by citing Republic v. Molina:
[54]



Indeed, mere allegations of conflicting personalities, irreconcilable differences,
incessant quarrels and/or beatings, unpredictable mood swings, infidelities, vices,
abandonment, and difficulty, neglect, or failure in the performance of some marital
obligations do not suffice to establish psychological incapacity.
[55]


If so, the lower court should have dismissed outright the petition for not meeting the guidelines
set in Molina. What Leonida attempted to demonstrate were Manuelshomosexual tendencies by citing
overt acts generally predominant among homosexual individuals.
[56]
She wanted to prove that the
perceived homosexuality renderedManuel incapable of fulfilling the essential marital obligations.

But instead of dismissing the petition, the trial court nullified the marriage between Manuel and
Leonida on the ground of vitiated consent by virtue of fraud. In support of its conclusion, the lower
court reasoned out:

As insinuated by the State (p. 75, TSN, 15 December 2003), when there is smoke
surely there is fire. Although vehemently denied by defendant, there is preponderant
evidence enough to establish with certainty that defendant is really a homosexual. This
is the fact that can be deduced from the totality of the marriage life scenario of herein
parties.

163

Before his marriage, defendant knew very well that people around him even
including his own close friends doubted his true sexual preference (TSN, pp. 35-36, 13
December 2000; pp.73-75, 15 December 2003). After receiving many forewarnings,
plaintiff told defendant about the rumor she heard but defendant did not do anything to
prove to the whole world once and for all the truth of all his denials. Defendant
threatened to sue those people but nothing happened after that. There may have been
more important matters to attend to than to waste time and effort filing cases against
and be effected by these people and so, putting more premiums on defendants denials,
plaintiff just the same married him. Reasons upon reasons may be advanced to either
exculpate or nail to the cross defendant for his act of initially concealing his
homosexuality to plaintiff, but in the end, only one thing is certain even during his
marriage with plaintiff, the smoke of doubt about his real preference continued and
even got thicker, reason why obviously defendant failed to establish a happy and solid
family; and in so failing, plaintiff and their children became his innocent and unwilling
victims.




Yes, there is nothing untoward of a man if, like herein defendant, he is
meticulous over even small details in the house (sic) like wrongly folded bed sheets, etc.
or if a man is more authoritative in knowing what clothes or jewelry shall fit his wife (pp.
77-81, TSN, 15 December 2003); but these admissions of defendant taken in the light of
evidence presented apparently showing that he had extra fondness of his male friends
(sic) to the extent that twice on separate occasions (pp. 4-7, TSN, 14 February 2001) he
was allegedly seen by plaintiff kissing another man lips-to-lips plus the homosexual
magazines and tapes likewise allegedly discovered underneath his bed (Exhibits L and
M), the doubt as to his real sex identity becomes stronger. The accusation of plaintiff
versus thereof of defendant may be the name of the game in this case; but the simple
reason of professional rivalry advanced by the defendant is certainly not enough to
justify and obscure the question why plaintiff should accuse him of such a very
untoward infidelity at the expense and humiliation of their children and family as a
whole.
[57]


164

Evidently, no sufficient proof was presented to substantiate the allegations that Manuel is a
homosexual and that he concealed this to Leonida at the time of their marriage. The lower court
considered the public perception of Manuels sexual preference without the corroboration of
witnesses. Also, it took cognizance of Manuels peculiarities and interpreted it against his sexuality.

Even assuming, ex gratia argumenti, that Manuel is a homosexual, the lower court cannot
appreciate it as a ground to annul his marriage with Leonida. The law is clear a marriage may be
annulled when the consent of either party was obtained by fraud,
[58]
such as concealment of
homosexuality.
[59]
Nowhere in the said decision was it proven by preponderance of evidence that
Manuel was a homosexual at the onset of his marriage and that he deliberately hid such fact to his
wife.
[60]
It is the concealment of homosexuality, and not homosexuality per se, that vitiates the consent
of the innocent party. Such concealment presupposes bad faith and intent to defraud the other party in
giving consent to the marriage.



Consent is an essential requisite of a valid marriage. To be valid, it must be freely given by both
parties. An allegation of vitiated consent must be proven by preponderance of evidence. The Family
Code has enumerated an exclusive list of circumstances
[61]
constituting fraud. Homosexuality per se is
not among those cited, but its concealment.

165

This distinction becomes more apparent when we go over the deliberations
[62]
of the Committees
on the Civil Code and Family Law, to wit:

Justice Caguioa remarked that this ground should be eliminated in the provision
on the grounds for legal separation. Dean Gupit, however, pointed out that in Article 46,
they are talking only of concealment, while in the article on legal separation, there is
actuality. Judge Diy added that in legal separation, the ground existed after the marriage,
while in Article 46, the ground existed at the time of the marriage. Justice Reyes
suggested that, for clarity, they add the phrase existing at the time of the marriage at
the end of subparagraph (4). The Committee approved the suggestion.
[63]


To reiterate, homosexuality per se is only a ground for legal separation. It is its concealment
that serves as a valid ground to annul a marriage.
[64]
Concealment in this case is not simply a blanket
denial, but one that is constitutive of fraud. It is this fundamental element that respondent failed to
prove.

In the United States, homosexuality has been considered as a basis for divorce. It indicates that
questions of sexual identity strike so deeply at one of the basic elements of marriage, which is the
exclusive sexual bond between the spouses.
[65]
In Crutcher v. Crutcher,
[66]
the Court held:

Unnatural practices of the kind charged here are an infamous indignity to the
wife, and which would make the marriage relation so revolting to her that it would
become impossible for her to discharge the duties of a wife, and would defeat the whole
purpose of the relation. In the natural course of things, they would cause mental suffering
to the extent of affecting her health.
[67]


166

However, although there may be similar sentiments here in the Philippines, the legal overtones
are significantly different. Divorce is not recognized in the country. Homosexuality and its alleged
incompatibility to a healthy heterosexual life are not sanctioned as grounds to sever the marriage
bond in our jurisdiction. At most, it is only a ground to separate from bed and board.

What was proven in the hearings a quo was a relatively blissful marital union for more
than eleven (11) years, which produced three (3) children. The burden of proof to show the nullity of
the marriage rests on Leonida. Sadly, she failed to discharge this onus.

The same failure to prove fraud which purportedly resulted to a vitiated marital consent was
found in Villanueva v. Court of Appeals.
[68]
In Villanueva, instead ofproving vitiation of consent,
appellant resorted to baseless portrayals of his wife as a perpetrator of fraudulent schemes. Said the
Court:

Factual findings of the Court of Appeals, especially if they coincide with those of
the trial court, as in the instant case, are generally binding on this Court. We affirm the
findings of the Court of Appeals that petitioner freely and voluntarily married private
respondent and that no threats or intimidation, duress or violence compelled him to do
so, thus

Appellant anchored his prayer for the annulment of his marriage on the ground
that he did not freely consent to be married to the appellee. He cited several incidents
that created on his mind a reasonable and well-grounded fear of an imminent and grave
danger to his life and safety. x x x

The Court is not convinced that appellants apprehension of danger to his
person is so overwhelming as to deprive him of the will to enter voluntarily to a contract
167

of marriage. It is not disputed that at the time he was allegedly being harassed,
appellant worked as a security guard in a bank. Given the rudiments of self-defense, or,
at the very least, the proper way to keep himself out of harms way. x x x

Appellant also invoked fraud to annul his marriage, as he was made to believe
by appellee that the latter was pregnant with his child when they were
married. Appellants excuse that he could not have impregnated the appellee because
he did not have an erection during their tryst is flimsy at best, and an outright lie at
worst. The complaint is bereft of any reference to his inability to copulate with the
appellee. x x x

x x x x

x x x The failure to cohabit becomes relevant only if it arises as a result of the
perpetration of any of the grounds for annulling the marriage, such as lack of parental
consent, insanity, fraud, intimidation, or undue influence x x x. Since the appellant
failed to justify his failure to cohabit with the appellee on any of these grounds, the
validity of his marriage must be upheld.
[69]


Verily, the lower court committed grave abuse of discretion, not only by solely taking into
account petitioners homosexuality per se and not its concealment, but by declaring the marriage void
from its existence.

This Court is mindful of the constitutional policy to protect and strengthen the family as the basic
autonomous social institution and marriage as the foundation of the family.
[70]
The State and the public
have vital interest in the maintenance and preservation of these social institutions against desecration
by fabricated evidence.
[71]
Thus, any doubt should be resolved in favor of the validity of marriage.

168



III. In a valid marriage, the husband and wife jointly administer and enjoy their community or
conjugal property.

Article 96 of the Family Code, on regimes of absolute community property, provides:

Art. 96. The administration and enjoyment of the community property shall
belong to both spouses jointly. In case of disagreement, the husbands decision shall
prevail, subject to recourse to the court by the wife for a proper remedy, which must be
availed of within five years from the date of the contract implementing such decision.

In the event that one spouse is incapacitated or otherwise unable to participate
in the administration of the common properties, the other spouse may assume sole
powers of administration. These powers do not include the powers of disposition or
encumbrance without the authority of the court or the written consent of the other
spouse. In the absence of such authority or consent, the disposition or encumbrance
shall be void. However, the transaction shall be construed as a continuing offer on the
part of the consenting spouse and the third person, and may be perfected as a binding
contract upon the acceptance by the other spouse or authorization by the court before
the offer is withdrawn by either or both offerors.

A similar provision, Article 124
[72]
prescribes joint administration and enjoyment in a regime of
conjugal partnership. In a valid marriage, both spouses exerciseadministration and enjoyment of the
property regime, jointly.

169

In the case under review, the RTC decreed a dissolution of the community property of Manuel
and Leonida. In the same breath, the trial court forfeited Manuels share in favor of the
children. Considering that the marriage is upheld valid and subsisting, the dissolution and forfeiture of
Manuels share in the property regime is unwarranted. They remain the joint administrators of the
community property.

WHEREFORE, the petition is GRANTED. The appealed Decision is REVERSED and SET ASIDE and
the petition in the trial court to annul the marriage isDISMISSED.

SO ORDERED.

170

THIRD DIVISION


VERONICA CABACUNGAN ALCAZAR,
Petitioner,




- versus -




REY C. ALCAZAR,
Respondent.
G.R. No. 174451

Present:

CARPIO, J.,
Chairperson,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA, and
PERALTA, JJ.

Promulgated:

October 13, 2009
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x


D E C I S I O N


CHICO-NAZARIO, J.:


This Petition for Review on Certiorari seeks to reverse the Decision
[1]
dated 24 May 2006 of the
Court of Appeals in CA-G.R. CV No. 84471, affirming the Decision dated 9 June 2004 of the Regional Trial
Court (RTC) of Malolos City, Branch 85, in Civil Case No. 664-M-2002, which dismissed petitioner
171

Veronica Cabacungan Alcazars Complaint for the annulment of her marriage to respondent Rey C.
Alcazar.

The Complaint,
[2]
docketed as Civil Case No. 664-M-2002, was filed by petitioner before the RTC
on 22 August 2002. Petitioner alleged in her Complaint that she was married to respondent on 11
October 2000 by Rev. Augusto G. Pabustan (Pabustan), at the latters residence. After their wedding,
petitioner and respondent lived for five days in San Jose, Occidental Mindoro, the hometown of
respondents parents. Thereafter, the newlyweds went back to Manila, but respondent did not live with
petitioner at the latters abode at 2601-C Jose Abad Santos Avenue, Tondo, Manila. On 23 October
2000, respondent left for Riyadh, Kingdom of Saudi Arabia, where he worked as an upholsterer in a
furniture shop. While working in Riyadh, respondent did not communicate with petitioner by phone or
by letter. Petitioner tried to call respondent for five times but respondent never answered. About a
year and a half after respondent left for Riyadh, a co-teacher informed petitioner that respondent was
about to come home to the Philippines. Petitioner was surprised why she was not advised by
respondent of his arrival.

Petitioner further averred in her Complaint that when respondent arrived in the Philippines, the
latter did not go home to petitioner at 2601-C Jose Abad Santos Avenue, Tondo, Manila. Instead,
respondent proceeded to his parents house in San Jose, Occidental Mindoro. Upon learning that
respondent was in San Jose, Occidental Mindoro, petitioner went to see her brother-in-law in Velasquez
St., Tondo, Manila, who claimed that he was not aware of respondents whereabouts. Petitioner
traveled toSan Jose, Occidental Mindoro, where she was informed that respondent had been living with
his parents since his arrival in March 2002.

Petitioner asserted that from the time respondent arrived in the Philippines, he never contacted
her. Thus, petitioner concluded that respondent was physically incapable of consummating his marriage
with her, providing sufficient cause for annulment of their marriage pursuant to paragraph 5, Article 45
of the Family Code of thePhilippines (Family Code). There was also no more possibility of reconciliation
between petitioner and respondent.

172

Per the Sheriffs Return
[3]
dated 3 October 2002, a summons, together with a copy of
petitioners Complaint, was served upon respondent on 30 September 2002.
[4]


On 18 November 2002, petitioner, through counsel, filed a Motion
[5]
to direct the public
prosecutor to conduct an investigation of the case pursuant to Article 48 of the Family Code.

As respondent did not file an Answer, the RTC issued on 27 November 2002 an Order
[6]
directing
the public prosecutor to conduct an investigation to ensure that no collusion existed between the
parties; to submit a report thereon; and to appear in all stages of the proceedings to see to it that
evidence was not fabricated or suppressed.

On 4 March 2003, Public Prosecutrix Veronica A.V. de Guzman (De Guzman) submitted her
Report manifesting that she had conducted an investigation of the case of petitioner and respondent in
January 2003, but respondent never participated therein. Public Prosecutrix De Guzman also noted that
no collusion took place between the parties, and measures were taken to prevent suppression of
evidence between them. She then recommended that a full-blown trial be conducted to determine
whether petitioners Complaint was meritorious or not.

Pre-trial was held and terminated on 20 May 2003.

On 21 May 2003, the RTC received the Notice of Appearance of the Solicitor General.

Trial on the merits ensued thereafter.

During trial, petitioner presented herself, her mother Lolita Cabacungan (Cabacungan), and
clinical psychologist Nedy L. Tayag (Tayag) as witnesses.

173

Petitioner first took the witness stand and elaborated on the allegations in her
Complaint. Cabacungan corroborated petitioners testimony.

Petitioners third witness, Tayag, presented the following psychological evaluation of petitioner
and respondent:

After meticulous scrutiny and careful analysis of the collected data, petitioner is
found to be free from any underlying personality aberration neither (sic) of any serious
psychopathological traits, which may possibly impede her normal functioning (sic) of
marriage. On the other hand, the undersigned arrived to (sic) a firm opinion that the
sudden breakdown of marital life between petitioner and respondent was clearly due to
the diagnosed personality disorder that the respondent is harboring, making him
psychologically incapacitated to properly assume and comply [with] essential roles (sic)
of obligations as a married man.

The pattern of behaviors displayed by the respondent satisfies the diagnostic
criteria of a disorder clinically classified as Narcissistic Personality Disorder, a condition
deemed to be grave, severe, long lasting in proportion and incurable by any treatment.

People suffering from Narcissistic Personality Disorder are known to have a
pervasive pattern of grandiosity (in fantasy or behavior), need for admiration, and lack
of empathy, beginning by early adulthood and present in a variety of contexts, as
indicated by five (or more) of the following:

1. has a grandiose of self-importance (e.g. exaggerates achievements and
talents, expect to be recognized as superior without commensurate achievements)

2. is preoccupied with fantasies of unlimited success, power, brilliance, beauty
or ideal love

3. believes that he or she is special and unique and can only be understood by,
or should associate with, other special or high status people (institutions)
174


4. requires excessive admiration

5. has sense of entitlement, i.e., unreasonable expectations of especially
favorable treatment or automatic compliance with his or her expectations

6. is interpersonally exploitative, i.e., takes advantage of others to achieve his or
her own ends

7. lacks empathy: is unwilling to recognize or identify with the feelings and
needs of others

8. is often envious of others or believes that others are envious of him or her

9. shows arrogant, haughty behavior or attitudes.

The root cause of respondents personality disorder can be attributed to his
early childhood years with predisposing psychosocial factors that influence[d] his
development. It was recounted that respondent is the first child of his mothers second
family. Obviously, unhealthy familial constellation composed his immediate
environment in his growing up years. Respondent had undergone a severe longing for
attention from his father who had been unfaithful to them and had died early in life,
that he was left alone to fend for the family needs. More so that they were coping
against poverty, his caregivers failed to validate his needs, wishes or responses and
overlooked the love and attention he yearned which led to develop a pathological need
for self-object to help him maintain a cohesive sense of self-such so great that
everything other people offer is consumed. Hence, he is unable to develop
relationship with other (sic) beyond this need. There is no capacity for empathy sharing,
or loving others.

The psychological incapacity of the respondent is characterized by juridical
antecedence as it already existed long before he entered into marriage. Since it already
175

started early in life, it is deeply engrained within his system and becomes a[n] integral
part of his personality structure, thereby rendering such to be permanent and
incurable.
[7]



Tayag concluded in the end that:


As such, their marriage is already beyond repair, considering the fact that it has
long been (sic) ceased to exist and have their different life priorities. Reconciliation
between them is regarded to be (sic). The essential obligations of love, trust, respect,
fidelity, authentic cohabitation as husband and wife, mutual help and support, and
commitment, did not and will no lon[g]er exist between them. With due consideration
of the above-mentioned findings, the undersigned recommends, the declaration of
nullity of marriage between petitioner and respondent.
[8]



On 18 February 2004, petitioner filed her Formal Offer of Evidence. Public Prosecutrix Myrna S.
Lagrosa (Lagrosa), who replaced Public Prosecutrix De Guzman, interposed no objection to the
admission of petitioners evidence and manifested that she would no longer present evidence for the
State.

On 9 June 2004, the RTC rendered its Decision denying petitioners Complaint for annulment of
her marriage to respondent, holding in substance that:

In the case at bar, the Court finds that the acts of the respondent in not
communicating with petitioner and not living with the latter the moment he returned
home from Saudi Arabia despite their marriage do (sic) not lead to a conclusion of
psychological incapacity on his part. There is absolutely no showing that his defects
were already present at the inception of their marriage or that these are incurable.

That being the case, the Court resolves to deny the instant petition.

WHEREFORE, premises considered, the Petition for Annulment of Marriage is
hereby DENIED.
[9]

176



Petitioner filed a Motion for Reconsideration
[10]
but it was denied by the RTC in an
Order
[11]
dated 19 August 2004.

Aggrieved, petitioner filed an appeal with the Court of Appeals, docketed as CA-G.R. CV No.
84471. In a Decision
[12]
dated 24 May 2006, the Court of Appeals affirmed the RTC Decision dated 9 June
2004. The Court of Appeals ruled that the RTC did not err in finding that petitioner failed to prove
respondents psychological incapacity. Other than petitioners bare allegations, no other evidence was
presented to prove respondents personality disorder that made him completely unable to discharge the
essential obligations of the marital state. Citing Republic v. Court of Appeals,
[13]
the appellate court ruled
that the evidence should be able to establish that at least one of the spouses was mentally or physically
ill to such an extent that said person could not have known the marital obligations to be assumed; or
knowing the marital obligations, could not have validly assumed the same. At most, respondents
abandonment of petitioner could be a ground for legal separation under Article 5 of the Family Code.

Petitioners Motion for Reconsideration was denied by the Court of Appeals in a
Resolution
[14]
dated 28 August 2008.

Hence, this Petition raising the sole issue of:

WHETHER OR NOT, AS DEFINED BY THE LAW AND JURISPRUDENCE,
RESPONDENT IS PSYCHOLOGICALLY INCAPACITATED TO PERFORM THE ESSENTIAL
MARITAL OBLIGATONS.
[15]



At the outset, it must be noted that the Complaint originally filed by petitioner before the RTC was
for annulment of marriage based on Article 45, paragraph 5 of the Family Code, which reads:

177

ART. 45. A marriage may be annulled for any of the following causes,
existing at the time of the marriage:

x x x x

(5) That either party was physically incapable of consummating the
marriage with the other, and such incapacity continues and appears to be incurable;
x x x.


Article 45(5) of the Family Code refers to lack of power to copulate.
[16]
Incapacity to
consummate denotes the permanent inability on the part of the spouses to perform the complete act of
sexual intercourse.
[17]
Non-consummation of a marriage may be on the part of the husband or of the
wife and may be caused by a physical or structural defect in the anatomy of one of the parties or it may
be due to chronic illness and inhibitions or fears arising in whole or in part from psychophysical
conditions. It may be caused by psychogenic causes, where such mental block or disturbance has the
result of making the spouse physically incapable of performing the marriage act.
[18]


No evidence was presented in the case at bar to establish that respondent was in any way
physically incapable to consummate his marriage with petitioner. Petitioner even admitted during her
cross-examination that she and respondent had sexual intercourse after their wedding and before
respondent left for abroad. There obviously being no physical incapacity on respondents part, then,
there is no ground for annulling petitioners marriage to respondent. Petitioners Complaint was,
therefore, rightfully dismissed.

One curious thing, though, caught this Courts attention. As can be gleaned from the evidence
presented by petitioner and the observations of the RTC and the Court of Appeals, it appears that
petitioner was actually seeking the declaration of nullity of her marriage to respondent based on the
latters psychological incapacity to comply with his marital obligations of marriage under Article 36 of
the Family Code.

178

Petitioner attributes the filing of the erroneous Complaint before the RTC to
her former counsels mistake or gross ignorance.
[19]
But even said reason cannot save petitioners
Complaint from dismissal. It is settled in this jurisdiction that the client is bound by the acts, even
mistakes, of the counsel in the realm of procedural technique.
[20]
Although this rule is not a hard and
fast one and admits of exceptions, such as where the mistake of counsel is so gross, palpable and
inexcusable as to result in the violation of his clients substantive rights,
[21]
petitioner failed to convince
us that such exceptional circumstances exist herein.

Assuming for the sake of argument that we can treat the Complaint as one for declaration of
nullity based on Article 36 of the Family Code, we will still dismiss the Complaint for lack of merit,
consistent with the evidence presented by petitioner during the trial.

Article 36 of the Family Code provides:

ART. 36. A marriage contracted by any party who, at the time of the
celebration, was psychologically incapacitated to comply with the essential marital
obligations of marriage, shall likewise be void even if such incapacity becomes manifest
only after its solemnization.


In Santos v. Court of Appeals,
[22]
the Court declared that psychological incapacity under Article
36 of the Family Code is not meant to comprehend all possible cases of psychoses. It should refer,
rather, to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of
the basic marital covenants that concomitantly must be assumed and discharged by the parties to the
marriage. Psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and
(c) incurability.
[23]


The Court laid down the guidelines in resolving petitions for declaration of nullity of marriage,
based on Article 36 of the Family Code, in Republic v. Court of Appeals,
[24]
to wit:

179

(1) The burden of proof to show the nullity of the marriage belongs to the
plaintiff. Any doubt should be resolved in favor of the existence and continuation of the
marriage and against its dissolution and nullity. This is rooted in the fact that both our
Constitution and our laws cherish the validity of marriage and unity of the family. Thus,
our Constitution devotes an entire Article on the Family, recognizing it as the
foundation of the nation. It decrees marriage as legally inviolable, thereby protecting
it from dissolution at the whim of the parties. Both the family and marriage are to be
protected by the state.

The Family Code echoes this constitutional edict on marriage and the family and
emphasizes their permanence, inviolability and solidarity.

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

(3) The incapacity must be proven to be existing at the time of the celebration
of the marriage. The evidence must show that the illness was existing when the parties
exchanged their I dos. The manifestation of the illness need not be perceivable at
such time, but the illness itself must have attached at such moment, or prior thereto.

(4) Such incapacity must also be shown to be medically or clinically permanent
or incurable. Such incurability may be absolute or even relative only in regard to the
other spouse, not necessarily absolutely against everyone of the same sex. Furthermore,
such incapacity must be relevant to the assumption of marriage obligations, not
necessarily to those not related to marriage, like the exercise of a profession or
employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses of
180

children and prescribing medicine to cure them but may not be psychologically
capacitated to procreate, bear and raise his/her own children as an essential obligation
of marriage.

(5) Such illness must be grave enough to bring about the disability of the party
to assume the essential obligations of marriage. Thus, mild characteriological
peculiarities, mood changes, occasional emotional outbursts cannot be accepted as
root causes. The illness must be shown as downright incapacity or inability, not a
refusal, neglect or difficulty, much less ill will. In other words, there is a natal or
supervening disabling factor in the person, an adverse integral element in the
personality structure that effectively incapacitates the person from really accepting and
thereby complying with the obligations essential to marriage.

(6) The essential marital obligations must be those embraced by Articles 68 up
to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221
and 225 of the same Code in regard to parents and their children. Such non-complied
marital obligation(s) must also be stated in the petition, proven by evidence and
included in the text of the decision.

(7) Interpretations given by the National Appellate Matrimonial Tribunal of the
Catholic Church in the Philippines, while not controlling or decisive, should be given
great respect by our courts. x x x.


Being accordingly guided by the aforequoted pronouncements in Republic v. Court of Appeals,
we scrutinized the totality of evidence presented by petitioner and found that the same was not enough
to sustain a finding that respondent was psychologically incapacitated.

Petitioners evidence, particularly her and her mothers testimonies, merely established that
respondent left petitioner soon after their wedding to work in Saudi Arabia; that when respondent
returned to the Philippines a year and a half later, he directly went to live with his parents in San Jose,
Occidental Mindoro, and not with petitioner in Tondo, Manila; and that respondent also did not contact
181

petitioner at all since leaving for abroad. These testimonies though do not give us much insight into
respondents psychological state.

Tayags psychological report leaves much to be desired and hardly helps petitioners cause. It
must be noted that Tayag was not able to personally examine respondent. Respondent did not appear
for examination despite Tayags invitation.
[25]
Tayag, in evaluating respondents psychological state, had
to rely on information provided by petitioner. Hence, we expect Tayag to have been more prudent and
thorough in her evaluation of respondents psychological condition, since her source of information,
namely, petitioner, was hardly impartial.

Tayag concluded in her report that respondent was suffering from Narcissistic Personality
Disorder, traceable to the latters experiences during his childhood. Yet, the report is totally bereft of
the basis for the said conclusion. Tayag did not particularly describe the pattern of behavior that
showed that respondent indeed had a Narcissistic Personality Disorder. Tayag likewise failed to explain
how such a personality disorder made respondent psychologically incapacitated to perform his
obligations as a husband. We emphasize that the burden falls upon petitioner, not just to prove that
respondent suffers from a psychological disorder, but also that such psychological disorder renders him
truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by
the parties to the marriage.
[26]
Psychological incapacity must be more than just a difficulty, a
refusal, or a neglect in the performance of some marital obligations.

In this instance, we have been allowed, through the evidence adduced, to peek into petitioners
marital life and, as a result, we perceive a simple case of a married couple being apart too long,
becoming strangers to each other, with the husband falling out of love and distancing or detaching
himself as much as possible from his wife.

To be tired and give up on ones situation and on ones spouse are not necessarily signs of
psychological illness; neither can falling out of love be so labeled. When these happen, the remedy for
some is to cut the marital knot to allow the parties to go their separate ways. This simple remedy,
however, is not available to us under our laws. Ours is a limited remedy that addresses only a very
specific situation a relationship where no marriage could have validly been concluded because the
182

parties; or where one of them, by reason of a grave and incurable psychological illness existing when the
marriage was celebrated, did not appreciate the obligations of marital life and, thus, could not have
validly entered into a marriage.
[27]


An unsatisfactory marriage is not a null and void marriage. As we stated in Marcos v. Marcos
[28]
:

Article 36 of the Family Code, we stress, is not to be confused with a divorce law
that cuts the marital bond at the time the causes therefor manifest themselves. It refers
to a serious psychological illness afflicting a party even before the celebration of the
marriage. It is a malady so grave and so permanent as to deprive one of awareness of
the duties and responsibilities of the matrimonial bond one is about to assume. x x x.


Resultantly, we have held in the past that mere irreconcilable differences and conflicting
personalities in no wise constitute psychological incapacity.
[29]


As a last-ditch effort to have her marriage to respondent declared null, petitioner pleads
abandonment by and sexual infidelity of respondent. In a Manifestation and Motion
[30]
dated 21 August
2007 filed before us, petitioner claims that she was informed by one Jacinto Fordonez, who is residing in
the same barangay as respondent in Occidental Mindoro, that respondent is living-in with another
woman named Sally.

Sexual infidelity, per se, however, does not constitute psychological incapacity within the
contemplation of the Family Code. Again, petitioner must be able to establish that respondents
unfaithfulness is a manifestation of a disordered personality, which makes him completely unable to
discharge the essential obligations of the marital state.
[31]


It remains settled that the State has a high stake in the preservation of marriage rooted in its
recognition of the sanctity of married life and its mission to protect and strengthen the family as a basic
183

autonomous social institution. Hence, any doubt should be resolved in favor of the existence and
continuation of the marriage and against its dissolution and nullity.
[32]
Presumption is always in favor of
the validity of marriage. Semper praesumitur pro matrimonio.
[33]
In the case at bar, petitioner failed to
persuade us that respondents failure to communicate with petitioner since leaving for Saudi Arabia to
work, and to live with petitioner after returning to the country, are grave psychological maladies that
are keeping him from knowing and/or complying with the essential obligations of marriage.

We are not downplaying petitioners frustration and misery in finding herself shackled, so to
speak, to a marriage that is no longer working. Regrettably, there are situations like this one, where
neither law nor society can provide the specific answers to every individual problem.
[34]


WHEREFORE, the Petition is DENIED. The 24 May 2006 Decision and 28 August 2008 Resolution
of the Court of Appeals in CA-G.R. CV No. 84471, which affirmed the 9 June 2004 Decision of
the Regional Trial Court of Malolos City, Branch 85, dismissing petitioner Veronica Cabacungan Alcazars
Complaint in Civil Case No. 664-M-2002, are AFFIRMED. No costs.

184

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-27972 October 31, 1927
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
FELIPE SANTIAGO, defendant-appellant.
Fausto C. Cuizon for appellant.
Attorney-General Jaranilla for appellee.

STREET, J.:
This appeal has been brought to reverse a judgment of the Court of First Instance of the Province of
Nueva Ecija, finding the appellant, Felipe Santiago, guilty of the offense of rape and sentencing him to
undergo imprisonment for fourteen years, eight months and one day, reclusion temporal, with the
accessories prescribed by law, requiring him to endow the offended party, Felicita Masilang, in the
amount of P500, without subsidiary imprisonment in case of insolvency, requiring him also to recognize
and maintain, at P15 per month, the offspring, if there should be any, as consequence of the rape, and
requiring him further to pay the costs.
The deceased wife of the appellant was the aunt of Felicita Masilang, aged 18, who was the injured girl
in this case. She is therefore appellant's niece by marriage, and she calls him uncle. Both are residents of
the municipality of Gapan, in the Province of Nueva Ecija. On November 23, 1926, the appellant asked
Felicita, who was them about 18 years of age, to accompany him across the river on some errand. The
girl agreed and they went over the river together into the municipality of San Leonardo. After crossing
the river, the appellant conducted the girl to a place about twenty paces from the highway where tall
grass and other growth hid them public view. In this spot the appellant manifested a desire to have
sexual intercourse with the girl, but she refused to give her consent, and he finally notwithstanding her
resistance, accomplished his purpose by force and against her will.
After the deed had been done the appellant conducted the girl to the house of his uncle, Agaton
Santiago, who lived not far away. They arrived here about 11 a. m., and remained for several hours. In
the course of the afternoon Agaton Santiago brought in a protestant minister who went through the
ceremony of marrying the couple. After this was over the appellant gave the girl a few pesos and sent
her home. Her father happened to be away that night, but upon his return the next day, she told him
what had happened, a this prosecution for rape was started.
The trial court found that the offense of rape had been committed, as above stated, and the marriage
ceremony was a mere ruse by which the appellant hoped to escape from the criminal consequences of
his act. We concur in this view of the case. The manner in which the appellant death with the girl after
185

the marriage, as well as before, shows that he had no bona fide intention of making her his wife, and the
ceremony cannot be considered binding on her because of duress. The marriage was therefore void for
lack of essential consent, and it supplies no impediment to the prosecution of the wrongdoer.
The Attorney-General suggest that, in fixing the penalty, it would be proper to take into account the
aggravating circumstance that the offense was committed in an uninhabited place. But the evidence
fails to show beyond a reasonable doubt that crime was committed en despoblado. The incident
occurred only a few paces from the Manila North Road, and it appears that there was an unoccupied
house nearby to which the girl was taken and where food was procured from Florentina Cuizon who
lived not far away. It is the constant doctrine of the court that an aggravating circumstance must be as
clearly proved as any other element of the crime (U. S. vs. Binayoh, 35 Phil., 23, 31; Albert, Law on
Crimes, pp. 88-89); and we cannot feel certain, upon the proof before us, that the place of the
commission of this offense was remote enough from habitation or possible aid to make appropriate the
estimation of the aggravating circumstance referred to. 1awph!l.net
The judgment appealed from is in accordance with law, and will be affirmed. So ordered, with costs
against the appellant.
Avancea, C.J., Johnson, Malcolm, Villamor, Ostrand, Johns and Villa-Real, JJ., concur.

186

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.
187

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.