Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 167109

Two months after the divorce, or on June 16, 1988, Orlando

married respondent Merope in Calasiao, Pangasinan.6
Contending that said marriage was bigamous since Merope had a
prior subsisting marriage with Eusebio Bristol, petitioner filed a
petition for declaration of nullity of marriage with damages in
the RTC of Dagupan City7 against Orlando and Merope.

February 6, 2007

FELICITAS AMOR-CATALAN, Petitioner,

vs.
COURT OF APPEALS, MANILA, ORLANDO B. CATALAN
and MEROPE E. BRAGANZA, Respondents.

Respondents filed a motion to dismiss8 on the ground of lack of

cause of action as petitioner was allegedly not a real party-ininterest, 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:

DECISION
YNARES-SANTIAGO, J.:
This petition for review assails the Decision1 of the Court of
Appeals in CA-G.R. CV No. 69875 dated August 6, 2004, which
reversed the Decision2 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 Resolution3 dated January 27, 2005, which denied the
motion for reconsideration.
Petitioner Felicitas Amor-Catalan married respondent Orlando
on June 4, 1950 in Mabini, Pangasinan.4Thereafter, they
migrated to the United States of America and allegedly became
naturalized citizens thereof. After 38 years of marriage, Felicitas
and Orlando divorced in April 1988.5

WHEREFORE, judgment is declared in favor of plaintiff

Felicitas Amor Catalan and against defendants Orlando B.
Catalan and Merope E. Braganza, as follows:
1) The subsequent marriage of Merope Braganza with
Orlando B. Catalan is declared null and void ab initio;
2) The defendants are ordered jointly and severally to pay
plaintiff by way of moral damages the amount of
P300,000.00, exemplary damages in the amount of
P200,000.00 and attorneys fees in the amount of
P50,000.00, including costs of this suit; and
3) The donation in consideration of marriage is ordered
revoked and the property donated is ordered awarded to the
heirs of Juliana Braganza.

Furnish copies of this Decision to Atty. Napoleon B. Arenas, Jr.

and Atty. Nolan Evangelista.
SO ORDERED.10
Respondents appealed the decision to the Court of Appeals,
which reversed the decision of the RTC, thus:
WHEREFORE, premises considered, we hereby GRANT the
appeal and consequently REVERSE and SET ASIDE the
appealed decision. We likewise DISMISS Civil Case No. D10636, 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 are, however, exceptions to this rule, like when the
findings of facts of the RTC and the Court of Appeals are
conflicting, or when the findings are conclusions without
citation of specific evidence on which they are based.15
Both the RTC and the Court of Appeals found that petitioner and
respondent Orlando were naturalized American citizens and that
they obtained a divorce decree in April 1988. However, after a
careful review of the records, we note that other than the
allegations in the complaint and the testimony during the trial,
the records are bereft of competent evidence to prove their

naturalization and divorce.

The Court of Appeals therefore had no basis when it held:
In light of the allegations of Felicitas complaint and the
documentary and testimonial evidence she presented, we deem it
undisputed that Orlando and Felicitas are American citizens and
had this citizenship status when they secured their divorce
decree in April 1988. We are not therefore dealing in this case
with Filipino citizens whose marital status is governed by the
Family Code and our Civil Code, but with American citizens
who secured their divorce in the U.S. and who are considered by
their national law to be free to contract another marriage. x x
x16
Further, the Court of Appeals mistakenly considered the failure
of the petitioner to refute or contest the allegation in
respondents brief, that she and respondent Orlando were
American citizens at the time they secured their divorce in April
1988, as sufficient to establish the fact of naturalization and
divorce.17 We note that it was the petitioner who alleged in her
complaint that they acquired American citizenship and that
respondent Orlando obtained a judicial divorce decree.18 It is
settled rule that one who alleges a fact has the burden of proving
it and mere allegation is not evidence.19
Divorce means the legal dissolution of a lawful union for a cause
arising after marriage. But divorces are of different types. The
two basic ones are (1) absolute divorce or a vinculo matrimonii
and (2) limited divorce or a mensa et thoro. The first kind
terminates the marriage, while the second suspends it and leaves

the bond in full force.20 A divorce obtained abroad by an alien

may be recognized in our jurisdiction, provided such decree is
valid according to the national law of the foreigner.21 However,
before it can be recognized by our courts, the party pleading it
must prove the divorce as a fact and demonstrate its conformity
to the foreign law allowing it, which must be proved considering
that our courts cannot take judicial notice of foreign laws.22
Without the divorce decree and foreign law as part of the
evidence, we cannot rule on the issue of whether petitioner has
the personality to file the petition for declaration of nullity of
marriage. After all, she may have the personality to file the
petition if the divorce decree obtained was a limited divorce or a
mensa et thoro; or the foreign law may restrict remarriage even
after the divorce decree becomes absolute.23 In such case, the
RTC would be correct to declare the marriage of the respondents
void for being bigamous, there being already in evidence two
existing marriage certificates, which were both obtained in the
Philippines, one in Mabini, Pangasinan dated December 21,
1959 between Eusebio Bristol and respondent Merope,24 and
the other, in Calasiao, Pangasinan dated June 16, 1988 between
the respondents.25
However, if there was indeed a divorce decree obtained and
which, following the national law of Orlando, does not restrict
remarriage, the Court of Appeals would be correct in ruling that
petitioner has no legal personality to file a petition to declare the
nullity of marriage, thus:
Freed from their existing marital bond, each of the former
spouses no longer has any interest nor should each have the

personality to inquire into the marriage that the other might

subsequently contract. x x x Viewed from another perspective,
Felicitas has no existing interest in Orlandos subsequent
marriage since the validity, as well as any defect or infirmity, of
this subsequent marriage will not affect the divorced status of
Orlando and Felicitas. x x x26
True, under the New Civil Code which is the law in force at the
time the respondents were married, or even in the Family Code,
there is no specific provision as to who can file a petition to
declare the nullity of marriage; however, only a party who can
demonstrate "proper interest" can file the same. A petition to
declare the nullity of marriage, like any other actions, must be
prosecuted or defended in the name of the real party in
interest27 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:

xxxx
In fine, petitioners personality to file the petition to declare the
nullity of marriage cannot be ascertained because of the absence
of the divorce decree and the foreign law allowing it. Hence, a
remand of the case to the trial court for reception of additional
evidence is necessary to determine whether respondent Orlando
was granted a divorce decree and whether the foreign law which
granted the same allows or restricts remarriage. If it is proved
that a valid divorce decree was obtained and the same did not
allow respondent Orlandos remarriage, then the trial court
should declare respondents marriage as bigamous and void ab
initio but reduce the amount of moral damages from
P300,000.00 to P50,000.00 and exemplary damages from
P200,000.00 to P25,000.00. On the contrary, if it is proved that a
valid divorce decree was obtained which allowed Orlando to
remarry, then the trial court must dismiss the instant petition to
declare nullity of marriage on the ground that petitioner Felicitas
Amor-Catalan lacks legal personality to file the same.
WHEREFORE, in view of the foregoing, let this case be
REMANDED to the trial court for its proper disposition. No
costs.
SO ORDERED.

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.

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

assist the Solicitor-General in the instant case. The Republic

argued, first, that Nolasco did not possess a "well-founded belief
that the absent spouse was already dead," 2 and second, Nolasco's
attempt to have his marriage annulled in the same proceeding
was a "cunning attempt" to circumvent the law on marriage. 3
During trial, respondent Nolasco testified that he was a seaman
and that he had first met Janet Monica Parker, a British subject,
in a bar in England during one of his ship's port calls. From that
chance meeting onwards, Janet Monica Parker lived with
respondent Nolasco on his ship for six (6) months until they
returned to respondent's hometown of San Jose, Antique on 19
November 1980 after his seaman's contract expired. On 15
January 1982, respondent married Janet Monica Parker in San
Jose, Antique, in Catholic rites officiated by Fr. Henry van
Tilborg in the Cathedral of San Jose.
Respondent Nolasco further testified that after the marriage
celebration, he obtained another employment contract as a
seaman and left his wife with his parents in San Jose, Antique.
Sometime in January 1983, while working overseas, respondent
received a letter from his mother informing him that Janet
Monica had given birth to his son. The same letter informed him
that Janet Monica had left Antique. Respondent claimed he then
immediately asked permission to leave his ship to return home.
He arrived in Antique in November 1983.
Respondent further testified that his efforts to look for her
himself whenever his ship docked in England proved fruitless.
He also stated that all the letters he had sent to his missing
spouse at No. 38 Ravena Road, Allerton, Liverpool, England, the

address of the bar where he and Janet Monica first met, were all
returned to him. He also claimed that he inquired from among
friends but they too had no news of Janet Monica.
On cross-examination, respondent stated that he had lived with
and later married Janet Monica Parker despite his lack of
knowledge as to her family background. He insisted that his wife
continued to refuse to give him such information even after they
were married. He also testified that he did not report the matter
of Janet Monica's disappearance to the Philippine government
authorities.
Respondent Nolasco presented his mother, Alicia Nolasco, as his
witness. She testified that her daughter-in-law Janet Monica had
expressed a desire to return to England even before she had
given birth to Gerry Nolasco on 7 December 1982. When asked
why her daughter-in-law might have wished to leave Antique,
respondent's mother replied that Janet Monica never got used to
the rural way of life in San Jose, Antique. Alicia Nolasco also
said that she had tried to dissuade Janet Monica from leaving as
she had given birth to her son just fifteen days before, but when
she (Alicia) failed to do so, she gave Janet Monica P22,000.00
for her expenses before she left on 22 December 1982 for
England. She further claimed that she had no information as to
the missing person's present whereabouts.
The trial court granted Nolasco's petition in a Judgment dated 12
October 1988 the dispositive portion of which reads:
Wherefore, under Article 41, paragraph 2 of the Family
Code of the Philippines (Executive Order No. 209, July

6, 1987, as amended by Executive Order No. 227, July

17, 1987) this Court hereby declares as presumptively
dead Janet Monica Parker Nolasco, without prejudice to
her reappearance. 4
The Republic appealed to the Court of Appeals contending that
the trial court erred in declaring Janet Monica Parker
presumptively dead because respondent Nolasco had failed to
show that there existed a well founded belief for such
declaration.
The Court of Appeals affirmed the trial court's decision, holding
that respondent had sufficiently established a basis to form a
belief that his absent spouse had already died.
The Republic, through the Solicitor-General, is now before this
Court on a Petition for Review where the following allegations
are made:
1. The Court of Appeals erred in affirming the trial
court's finding that there existed a well-founded belief
on the part of Nolasco that Janet Monica Parker was
already dead; and
2. The Court of Appeals erred in affirming the trial
Court's declaration that the petition was a proper case of
the declaration of presumptive death under Article 41,
Family Code. 5
The issue before this Court, as formulated by petitioner is
"[w]hether or not Nolasco has a well-founded belief that his wife

is aleady 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 wellfounded 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 andbelieved 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.

requirements. 11

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:

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.

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;

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:

2. That the present spouse wishes to remarry;

3. That the present spouse has a well-founded belief that
the absentee is dead; and
4. That the present spouse files a summary proceeding
for the declaration of presumptive death of the absentee.
10

Respondent naturally asserts that he had complied with all these

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.

While the defendant testified that he had made inquiries

concerning the whereabouts of his wife, he fails to state
of whom he made such inquiries. He did not even write
to the parents of his first wife, who lived in the Province
of Pampanga, for the purpose of securing information
concerning her whereabouts. He admits that he had a
suspicion only that his first wife was dead. He admits
that the only basis of his suspicion was the fact that she
had been absent. . . . 13

In the case at bar, the Court considers that the investigation

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

. . . Well, while the cognoscente (sic) would readily

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

is not well taken. There is no analogy between Manila and its

neighboring cities, on one hand, and London and Liverpool, on
the other, which, as pointed out by the Solicitor-General, are
around three hundred fifty (350) kilometers apart. We do not
consider that walking into a major city like Liverpool or London
with a simple hope of somehow bumping into one particular
person there which is in effect what Nolasco says he did
can be regarded as a reasonably diligent search.
The Court also views respondent's claim that Janet Monica
declined to give any information as to her personal background
even after she had married respondent 17 too convenient an
excuse to justify his failure to locate her. The same can be said
of the loss of the alleged letters respondent had sent to his wife
which respondent claims were all returned to him. Respondent
said he had lost these returned letters, under unspecified

circumstances.
Neither can this Court give much credence to respondent's bare
assertion that he had inquired from their friends of her
whereabouts, considering that respondent did not identify those
friends in his testimony. The Court of Appeals ruled that since
the prosecutor failed to rebut this evidence during trial, it is good
evidence. But this kind of evidence cannot, by its nature, be
rebutted. In any case, admissibility is not synonymous with
credibility. 18 As noted before, there are serious doubts to
respondent's credibility. Moreover, even if admitted as evidence,
said testimony merely tended to show that the missing spouse
had chosen not to communicate with their common
acquaintances, and not that she was dead.
Respondent testified that immediately after receiving his
mother's letter sometime in January 1983, he cut short his
employment contract to return to San Jose, Antique. However,
he did not explain the delay of nine (9) months from January
1983, when he allegedly asked leave from his captain, to
November 1983 when be finally reached San Jose. Respondent,
moreover, claimed he married Janet Monica Parker without
inquiring about her parents and their place of residence. 19 Also,
respondent failed to explain why he did not even try to get the
help of the police or other authorities in London and Liverpool
in his effort to find his wife. The circumstances of Janet
Monica's departure and respondent's subsequent behavior make
it very difficult to regard the claimed belief that Janet Monica
was dead a well-founded one.
In Goitia v. Campos-Rueda, 20 the Court stressed that:

. . . Marriage is an institution, the maintenance of which

in its purity the public is deeply interested. It is a
relationship for life and the parties cannot terminate it
at any shorter period by virtue of any contract they
make. . . . . 21 (Emphasis supplied)
By the same token, the spouses should not be allowed, by the
simple expedient of agreeing that one of them leave the conjugal
abode and never to return again, to circumvent the policy of the
laws on marriage. The Court notes that respondent even tried to
have his marriage annulled before the trial court in the same
proceeding.
In In Re Szatraw, 22 the Court warned against such collusion
between the parties when they find it impossible to dissolve the
marital bonds through existing legal means.
While the Court understands the need of respondent's young son,
Gerry Nolasco, for maternal care, still the requirements of the
law must prevail. Since respondent failed to satisfy the clear
requirements of the law, his petition for a judicial declaration of
presumptive death must be denied. The law does not view
marriage like an ordinary contract. Article 1 of the Family Code
emphasizes that.
. . . Marriage is a special contract of permanent union
between a man and a woman entered into in
accordance with law for the establishment of conjugal
and family life. It is the foundation of the familyand an
inviolable
social
institution
whose
nature,
consequences, and incidents are governed by law and

not subject to stipulation, except that marriage

settlements may fix the property relations during the
marriage within the limits provided by this Code.
(Emphasis supplied)
In Arroyo, Jr. v. Court of Appeals,
the need to protect.

23

the Court stressed strongly

. . . 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 wellfounded 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.

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.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

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,

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.

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:
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

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.

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.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

Having arrived at the foregoing conclusion, the other issues

raised need no longer be discussed.

G.R. No. L-53703 August 19, 1986

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

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.

already married to someone else.

Siguion Reyna, Montecillo and Ongsiako Law Office for private

respondent.

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-

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

(1) the Order dated March 17, 1980 in which the parties were
compelled to submit the case for resolution based on "agreed
facts;" and
(2) the Order dated April 14, 1980, denying petitioner's motion
to allow her to present evidence in her favor.
We find the petition devoid of merit.
There is no need for petitioner to prove that her first marriage
was vitiated by force committed against both parties because
assuming this to be so, the marriage will not be void but merely
viodable (Art. 85, Civil Code), and therefore valid until
annulled. Since no annulment has yet been made, it is clear that
when she married respondent she was still validly married to her
first husband, consequently, her marriage to respondent is VOID
(Art. 80, Civil Code).
There is likewise no need of introducing evidence about the
existing prior marriage of her first husband at the time they
married each other, for then such a marriage though void still
needs according to this Court a judicial declaration 1 of such fact
and for all legal intents and purposes she would still be regarded

as a married woman at the time she contracted her marriage with

respondent Karl Heinz Wiegel); accordingly, the marriage of
petitioner and respondent would be regarded VOID under the
law.
WHEREFORE, this petition is hereby DISMISSED, for lack of
merit, and the Orders complained of are hereby AFFIRMED.
Costs against petitioner.
SO ORDERED.
Feria (Chairman), Fernan Alampay and Gutierrez, Jr., JJ.,
concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-53642 April 15, 1988
LEONILO C. DONATO, petitioners,
vs.
HON. ARTEMON D. LUNA, PRESIDING JUDGE, COURT
OF FIRST INSTANCE OF MANIIA, BRANCH XXXII HON.
JOSE FLAMINIANO, CITY FISCAL OF MANILA; PAZ B.
ABAYAN, respondents.
Leopoldo P. Dela Rosa for petitioner.
Emiterio C. Manibog for private respondent.
City Fiscal of Manila for public respondent.
GANCAYCO, J.:
In this petition for certiorari and prohibition with preliminary
injunction, the question for the resolution of the Court is whether
or not a criminal case for bigamy pending before the Court of
First Itance of Manila should be suspended in view of a civil
case for annulment of marriage pending before the Juvenile and
Domestic Relations Court on the ground that the latter
constitutes a prejudicial question. The respondent judge ruled in
the negative. We sustain him.

The pertinent facts as set forth in the records follow. On January

23, 1979, the City Fiscal of Manila acting thru Assistant City
Fiscal Amado N. Cantor filed an information for bigamy against
herein petitioner, Leonilo C. Donato with the Court of First
Instance of Manila, docketed as Criminal Case No. 43554 and
assigned to Branch XXXII of said court. The information was
filed based on the complaint of private respondent Paz B.
Abayan.
On September 28, 1979, before the petitioner's arraignment,
private respondent filed with the Juvenile and Domestic
Relations Court of Manila a civil action for declaration of nullity
of her marriage with petitioner contracted on September 26,
1978, which action was docketed as Civil Case No. E-02627.
Said civil case was based on the ground that private respondent
consented to entering into the marriage, which was petitioner
Donato's second one, since she had no previous knowledge that
petitioner was already married to a certain Rosalinda R.
Maluping on June 30, 1978. Petitioner Donato's answer in the
civil case for nullity interposed the defense that his second
marriage was void since it was solemnized without a marriage
license and that force, violence, intimidation and undue
influence were employed by private respondent to obtain
petitioner's consent to the marriage. Prior to the solemnization of
the subsequent or second marriage, petitioner and private
respondent had lived together and deported themselves as
husband and wife without the benefit of wedlock for a period of
at least five years as evidenced by a joint affidavit executed by
them on September 26, 1978, for which reason, the requisite
marriage license was dispensed with pursuant to Article 76 of
the New Civil Code pertaining to marriages of exceptional

character.
Prior to the date set for the trial on the merits of Criminal Case
No. 43554, petitioner filed a motion to suspend the proceedings
of said case contending that Civil Case No. E-02627 seeking the
annulment of his second marriage filed by private respondent
raises a prejudicial question which must first be determined or
decided before the criminal case can proceed.
In an order dated April 7, 1980. Hon. Artemon D. Luna denied
the motion to suspend the proceedings in Criminal Case No.
43554 for bigamy. Respondent judge's basis for denial is the
ruling laid down in the case of Landicho vs. Relova. 1 The order
further directed that the proceedings in the criminal case can
proceed as scheduled.
A motion for reconsideration was flied by herein petitioner thru
counsel citing as one of his grounds for suspension of
proceedings the ruling laid down by this Court in the case of De
la Cruz vs. Ejercito 2 which was a much later case than that cited
by respondent judge in his order of denial.
The motion for reconsideration of the said order was likewise
denied in an order dated April 14, 1980, for lack of merit. Hence,
the present petition for certiorari and prohibition with
preliminary injunction.
A prejudicial question has been defined to be one which arises in
a case, the resolution of which question is a logical antecedent of
the issue involved in said case, and the cognizance of which
pertains to another tribunal. 3 It is one based on a fact distinct

and separate from the crime but so intimately connected with it

that it determines the guilt or innocence of the accused, and for it
to suspend the criminal action, it must appear not only that said
case involves facts intimately related to those upon which the
criminal prosecution would be based but also that in the
resolution of the issue or issues raised in the civil case, the guilt
or innocence of the accused would necessarily be determined. 4
A prejudicial question usually comes into play in a situation
where a civil action and a criminal action may proceed, because
howsoever the issue raised in the civil action is resolved would
be determinative juris et de jure of the guilt or innocence of the
accused in a criminal case. 5

The requisites of a prejudicial question do not obtain in the case

at bar. It must be noted that the issue before the Juvenile and
Domestic Relations Court touching upon the nullity of the
second marriage is not determinative of petitioner Donato's guilt
or innocence in the crime of bigamy. Furthermore, it was
petitioner's second wife, the herein private respondent Paz B.
Abayan who filed the complaint for annulment of the second
marriage on the ground that her consent was obtained through
deceit.
Petitioner Donato raised the argument that the second marriage
should have been declared null and void on the ground of force,
threats and intimidation allegedly employed against him by
private respondent only sometime later when he was required to
answer the civil action for anulment of the second marriage. The
doctrine elucidated upon by the case of Landicho vs. Relova 6

may be applied to the present case. Said case states that:

The mere fact that there are actions to annul the
marriages entered into by the accused in a bigamy case
does not mean that "prejudicial questions" are
automatically raised in civil actions as to warrant the
suspension of the case. In order that the case of
annulment of marriage be considered a prejudicial
question to the bigamy case against the accused, it must
be shown that the petitioner's consent to such marriage
must be the one that was obtained by means of duress,
force and intimidation to show that his act in the second
marriage must be involuntary and cannot be the basis of
his conviction for the crime of bigamy. The situation in
the present case is markedly different. At the time the
petitioner was indicted for bigamy on February 27,
1963, the fact that two marriage ceremonies had been
contracted appeared to be indisputable. And it was the
second spouse, not the petitioner who filed the action
for nullity on the ground of force, threats and
intimidation. And it was only on June 15, 1963, that
petitioner, as defendant in the civil action, filed a thirdparty complaint against the first spouse alleging that his
marriage with her should be declared null and void on
the ground of force, threats and intimidation. Assuming
that the first marriage was null and void on the ground
alleged by petitioner, the fact would not be material to
the outcome of the case. Parties to the marriage should
not be permitted to judge for themselves its nullity, for
the same must be submitted to the judgment of the
competent courts and only when the nullity of the

marriage is so declared can it be held as void, and so

long as there is no such declaration the presumption is
that the marriage exists. Therefore, he who contracts a
second marriage before the judicial declaration of
nullity of the first marriage assumes the risk of being
prosecuted for bigamy. The lower court therefore, has
not abused much less gravely abused, its discretion in
failing to suspend the hearing as sought by petitioner.
In the case at bar, petitioner has not even sufficiently shown that
his consent to the second marriage has been obtained by the use
of threats, force and intimidation.
Petitioner calls the attention of this Court to the fact that the case
of De la Cruz vs. Ejercito is a later case and as such it should be
the one applied to the case at bar. We cannot agree. The situation
in the case at bar is markedly different. In the aforecited case it
was accused Milagros dela Cruz who was charged with bigamy
for having contracted a second marriage while a previous one
existed. Likewise, Milagros dela Cruz was also the one who
filed an action for annulment on the ground of duress, as contradistinguished from the present case wherein it was private
respondent Paz B. Abayan, petitioner's second wife, who filed a
complaint for annulment of the second marriage on the ground
that her consent was obtained through deceit since she was not
aware that petitioner's marriage was still subsisting. Moreover,
in De la Cruz, a judgment was already rendered in the civil case
that the second marriage of De la Cruz was null and void, thus
determinative of the guilt or innocence of the accused in the
criminal case. In the present case, there is as yet no such
judgment in the civil case.

Pursuant to the doctrine discussed in Landicho vs. Relova,

petitioner Donato cannot apply the rule on prejudicial questions
since a case for annulment of marriage can be considered as a
prejudicial question to the bigamy case against the accused only
if it is proved that the petitioner's consent to such marriage was
obtained by means of duress, violence and intimidation in order
to establish that his act in the subsequent marriage was an
involuntary one and as such the same cannot be the basis for
conviction. The preceding elements do not exist in the case at
bar.
Obviously, petitioner merely raised the issue of prejudicial
question to evade the prosecution of the criminal case. The
records reveal that prior to petitioner's second marriage on
September 26, 1978, he had been living with private respondent
Paz B. Abayan as husband and wife for more than five years
without the benefit of marriage. Thus, petitioner's averments that
his consent was obtained by private respondent through force,
violence, intimidation and undue influence in entering a
subsequent marriage is belled by the fact that both petitioner and
private respondent executed an affidavit which stated that they
had lived together as husband and wife without benefit of
marriage for five years, one month and one day until their
marital union was formally ratified by the second marriage and
that it was private respondent who eventually filed the civil
action for nullity.
Another event which militates against petitioner's contentions is
the fact hat it was only when Civil Case No. E-02627 was filed
on September 28, 1979, or more than the lapse of one year from
the solemnization of the second marriage that petitioner came up

with the story that his consent to the marriage was secured
through the use of force, violence, intimidation and undue
influence. Petitioner also continued to live with private
respondent until November 1978, when the latter left their abode
upon learning that Leonilo Donato was already previously
married.
In the light of the preceding factual circumstances, it can be seen
that the respondent Judge did not err in his earlier order. There is
no pivotal issue that must be pre-emptively resolved in Civil
Case No. E-02627 before proceedings in the criminal action for
bigamy can be undertaken.
Accordingly, there being no prejudicial question shown to exit
the order of denial issued by the respondent judge dated April
14, 1980 should be sustained.
WHEREFORE, in view of the foregoing, the instant petition is
hereby DISMISSED for lack of merit. We make no
pronouncement as to costs.
SO ORDERED.
Teehankee, C.J., Narvasa, Cruz and Grio-Aquino, JJ., concur.

Republic 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 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 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 MelencioHerrera:
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). 1
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.

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 fifteenyear 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.
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, 7such 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.
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).

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.

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

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

To this we may also add that the rule on constructive notice will

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.

marriage as this would subject him to punishment under the

Marriage 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.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 145226

February 06, 2004

LUCIO MORIGO y CACHO, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION
QUISUMBING, J.:
This petition for review on certiorari seeks to reverse the
decision1 dated October 21, 1999 of the Court of Appeals in
CA-G.R. CR No. 20700, which affirmed the judgment2 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 ofprision correccional as minimum to six
(6) years and one (1) day of prision mayor as maximum. Also
assailed in this petition is the resolution3 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 Lumbago4 at the Virgen sa Barangay Parish,
Tagbilaran City, Bohol.
On September 21, 1993, accused filed a complaint for
judicial declaration of nullity of marriage in the Regional
Trial Court of Bohol, docketed as Civil Case No. 6020. The
complaint seek (sic) among others, the declaration of nullity
of 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 Information5 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 ofPrision 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
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 34912 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 1513 of
the Civil Code and given the fact that it is contrary to public
policy in this jurisdiction. Under Article 1714 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 void ab initio, then
there was no first marriage to speak of. Since the date of the
nullity retroacts to the date of the first marriage and since herein
petitioner was, in the eyes of the law, never married, he cannot
be convicted beyond reasonable doubt of bigamy.
The present petition raises the following issues for our
resolution:
A.
WHETHER OR NOT THE COURT OF APPEALS ERRED
IN FAILING TO APPLY THE RULE THAT IN CRIMES
PENALIZED UNDER THE REVISED PENAL CODE,
CRIMINAL INTENT IS AN INDISPENSABLE
REQUISITE. COROLLARILY, WHETHER OR NOT THE
COURT OF APPEALS ERRED IN FAILING TO
APPRECIATE [THE] PETITIONERS LACK OF
CRIMINAL INTENT WHEN HE CONTRACTED THE
SECOND MARRIAGE.

B.
WHETHER OR NOT THE COURT OF APPEALS ERRED
IN HOLDING THAT THE RULING IN PEOPLE VS.
BITDU (58 PHIL. 817) IS APPLICABLE TO THE CASE
AT BAR.
C.
WHETHER OR NOT THE COURT OF APPEALS ERRED
IN FAILING TO APPLY THE RULE THAT EACH AND
EVERY
CIRCUMSTANCE
FAVORING
THE
INNOCENCE OF THE ACCUSED MUST BE TAKEN
INTO ACCOUNT.17
To our mind, the primordial issue should be whether or not
petitioner committed bigamy and if so, whether his defense of
good faith is valid.
The petitioner submits that he should not be faulted for relying
in good faith upon the divorce decree of the Ontario court. He
highlights the fact that he contracted the second marriage openly
and publicly, which a person intent upon bigamy would not be
doing. The petitioner further argues that his lack of criminal
intent is material to a conviction or acquittal in the instant case.
The crime of bigamy, just like other felonies punished under the
Revised Penal Code, is mala in se, and hence, good faith and
lack of criminal intent are allowed as a complete defense. He
stresses that there is a difference between the intent to commit
the crime and the intent to perpetrate the act. Hence, it does not
necessarily follow that his intention to contract a second

marriage is tantamount to an intent to commit bigamy.

For the respondent, the Office of the Solicitor General (OSG)
submits that good faith in the instant case is a convenient but
flimsy excuse. The Solicitor General relies upon our ruling in
Marbella-Bobis v. Bobis,18 which held that bigamy can be
successfully prosecuted provided all the elements concur,
stressing that under Article 4019 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 322 and 423 of the Family
Code. As the dissenting opinion in CA-G.R. CR No. 20700,
correctly puts it, "This simply means that there was no marriage
to begin with; and that such declaration of nullity retroacts to the
date of the first marriage. In other words, for all intents and
purposes, reckoned from the date of the declaration of the first
marriage as void ab initio to the date of the celebration of the
first marriage, the accused was, under the eyes of the law, never
married."24 The records show that no appeal was taken from the
decision of the trial court in Civil Case No. 6020, hence, the
decision had long become final and executory.

The first element of bigamy as a crime requires that the accused

must have been legally married. But in this case, legally
speaking, the petitioner was never married to Lucia Barrete.
Thus, there is no first marriage to speak of. Under the principle
of retroactivity of a marriage being declared void ab initio, the
two were never married "from the beginning." The contract of
marriage is null; it bears no legal effect. Taking this argument to
its logical conclusion, for legal purposes, petitioner was not
married to Lucia at the time he contracted the marriage with
Maria Jececha. The existence and the validity of the first
marriage being an essential element of the crime of bigamy, it is
but logical that a conviction for said offense cannot be sustained
where there is no first marriage to speak of. The petitioner, must,
perforce be acquitted of the instant charge.
The present case is analogous to, but must be distinguished from
Mercado v. Tan.25 In the latter case, the judicial declaration of
nullity of the first marriage was likewise obtained after the
second marriage was already celebrated. We held therein that:
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 CAG.R. CR No. 20700, as well as the resolution of the appellate
court dated September 25, 2000, denying herein petitioners
motion for reconsideration, is REVERSED and SET ASIDE.
The petitioner Lucio Morigo y Cacho is ACQUITTED from the
charge of BIGAMY on the ground that his guilt has not been
proven with moral certainty.

SO ORDERED.
Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ.,
concur.

lnformation for Bigamy filed against respondent Lourdes

Tajolosa Cipriano. Also assailed is the RTC Resolution2 dated
January 2, 2008 denying the motion for reconsideration.
On April 8, 1976, respondent married Socrates Flores (Socrates)
in Lezo, Aklan.3 On January 24, 1983, during the subsistence of
the said marriage, respondent married Silverio V. Cipriano
(Silverio) in San Pedro, Laguna.4 In 2001, respondent filed with
the RTC of Muntinlupa, Branch

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 181089

October 22, 2012

MERLINDA CIPRIANO MONTAES, Complainant,

vs.
LOURDES TAJOLOSA CIPRIANO, Respondent.
DECISION
PERALTA, J.:
For our resolution is a petition for review on certiorari which
seeks to annul the Order1 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

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 Decision5
declaring the marriage of respondent with Socrates null and
void. Said decision became final and executory on October 13,
2003.6
On May 14, 2004, petitioner Merlinda Cipriano Montaez,
Silverios daughter from the first marriage, filed with the
Municipal Trial Court of San Pedro, Laguna, a Complaint7 for
Bigamy against respondent, which was docketed as Criminal
Case No. 41972. Attached to the complaint was an Affidavit8
(Malayang Sinumpaang Salaysay) dated August 23, 2004,
thumb-marked and signed by Silverio,9 which alleged, among
others, that respondent failed to reveal to Silverio that she was
still married to Socrates. On November 17, 2004, an
Information10 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:

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
On July 24, 2007 and before her arraignment, respondent,
through counsel, filed a Motion to Quash Information (and
Dismissal of the Criminal Complaint)12 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 Comment13 arguing that
the 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 Order14 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.
Tan15 where we held:

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 lettercomplaint 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 x16
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 Reconsideration17 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 the
dispositive portion of which reads:

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.
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 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:
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
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
Notwithstanding, we will give due course to this petition as we
had done in the past. In Antone v. Beronilla,21 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:
In Labaro v. Panay, this Court dealt with a similar defect in the
following manner:
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 the
OSG has ratified and adopted as its own the instant petition for
the People of the Philippines. (Emphasis supplied)22
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:

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 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
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:
xxxx
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
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.
We rule in the negative.
In Mercado v. Tan,26 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 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 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
In Tenebro v. CA,30 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
And in Jarillo v. People,32 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. CA33 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
exists.34 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
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 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
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:
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:
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.1wphi1

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:
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
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. 4990SPL is ordered REMANDED to the trial court for further
proceedings.
SO ORDERED.

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

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 oppositorappellant 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:
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
necessary8 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 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 wellfounded 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.

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.
DECISION
CARPIO MORALES,J.:
The Court of Appeals Decision1 dated June 23, 20042 and
Resolution dated September 28, 20043 reversing the Resolution
dated April 2, 20034 and Order dated June 4, 20035 of the Social
Security Commission (SSC) in SSC Case No. 4-15149-01 are
challenged in the present petition for review on certiorari.
On April 25, 1955, Clemente G. Bailon (Bailon) and Alice P.
Diaz (Alice) contracted marriage in Barcelona, Sorsogon.6
More than 15 years later or on October 9, 1970, Bailon filed
before the then Court of First Instance (CFI) of Sorsogon a
petition7 to declare Alice presumptively dead.

By Order of December 10, 1970,8 the CFI granted the petition,

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

the first with Alice, the second with her mother Elisa, and the
third with respondent, all of whom are still alive; she, together
with her siblings, paid for Bailons medical and funeral
expenses; and all the documents submitted by respondent to the
SSS in support of her claims are spurious.
In support of her claim, Cecilia and her sister Norma Bailon
Chavez (Norma) submitted an Affidavit dated February 13,
199915 averring that they are two of nine children of Bailon and
Elisa who cohabited as husband and wife as early as 1958; and
they were reserving their right to file the necessary court action
to contest the marriage between Bailon and respondent as they
personally know that Alice is "still very much alive."16

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

In the meantime, on April 5, 1999, a certain Hermes P. Diaz,

claiming to be the brother and guardian of "Aliz P. Diaz," filed
before the SSS a claim for death benefits accruing from Bailons
death,17 he further attesting in a sworn statement18 that it was
Norma who defrayed Bailons funeral expenses.

Respondent thereupon filed a claim for funeral benefits, and was

granted P12,00012 by the SSS.

Elisa and seven of her children19 subsequently filed claims for

death benefits as Bailons beneficiaries before the SSS.20

Respondent filed on March 11, 1998 an additional claim for

death benefits13 which was also granted by the SSS on April 6,
1998.14

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

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,

according to the order of preference provided under the law,

after the amount erroneously paid to respondent has been
collected. The pertinent portions of the Memorandum read:
1. Aliz [sic] Diaz never disappeared. The court must have
been misled by misrepresentation in declaring the first wife,
Aliz [sic] Diaz, as presumptively dead.
xxxx
x x x the Order of the court in the "Petition to Declare Alice
Diaz Presumptively Dead," did not become final. The
presence of Aliz [sic] Diaz, is contrary proof that rendered it
invalid.
xxxx
3. It was the deceased member who abandoned his wife,
Aliz [sic] Diaz. He, being in bad faith, and is the deserting
spouse, his remarriage is void, being bigamous.
xxxx
In this case, it is the deceased member who was the deserting
spouse and who remarried, thus his marriage to Teresita Jarque,
for the second time was void as it was bigamous. To require
affidavit of reappearance to terminate the second marriage is not
necessary as there is no disappearance of Aliz [sic] Diaz, the first
wife, and a voidable marriage [sic], to speak of.21
(Underscoring supplied)

In the meantime, the SSS Sorsogon Branch, by letter of August

16, 2000,22 advised respondent that as Cecilia and Norma were
the ones who defrayed Bailons funeral expenses, she should
return the P12,000 paid to her.
In a separate letter dated September 7, 1999,23 the SSS advised
respondent of the cancellation of her monthly pension for death
benefits in view of the opinion rendered by its legal department
that her marriage with Bailon was void as it was contracted
while the latters marriage with Alice was still subsisting; and
the December 10, 1970 CFI Order declaring Alice presumptively
dead did not become final, her "presence" being "contrary proof"
against the validity of the order. It thus requested respondent to
return the amount of P24,000 representing the total amount of
monthly pension she had received from the SSS from February
1998 to May 1999.
Respondent protested the cancellation of her monthly pension
for death benefits by letter to the SSS dated October 12, 1999.24
In a subsequent letter dated November 27, 199925 to the SSC,
she reiterated her request for the release of her monthly pension,
asserting that her marriage with Bailon was not declared before
any court of justice as bigamous or unlawful, hence, it remained
valid and subsisting for all legal intents and purposes as in fact
Bailon designated her as his beneficiary.
The SSS, however, by letter to respondent dated January 21,
2000,26 maintained the denial of her claim for and the
discontinuance of payment of monthly pension. It advised her,
however, that she was not deprived of her right to file a petition
with the SSC.

Respondent thus filed a petition27 against the SSS before the

SSC for the restoration to her of her entitlement to monthly
pension.

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.

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

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.

After the SSS filed its Answer29 to respondents petition, and

the parties filed their respective Position Papers, one Alicia P.
Diaz filed an Affidavit30 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:

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 the
petitioner is not the legitimate wife of the deceased member.
xxxx

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.

There is x x x ample evidence pointing to the fact that, contrary

to the declaration of the then CFI of Sorsogon (10th Judicial
District), the first wife never disappeared as the deceased
member represented in bad faith. This Commission accords
credence to the findings of the SSS contained in its
Memorandum dated August 9, 1999,32revealing that Alice
(a.k.a. Aliz) Diaz never left Barcelona, Sorsogon, after her
separation from Clemente Bailon x x x.

Accordingly, the petitioner is hereby ordered to refund to the

As the declaration of presumptive death was extracted by the

deceased member using artifice and by exerting fraud upon the

unsuspecting court of law, x x x it never had the effect of giving
the deceased member the right to marry anew. x x x [I]t is clear
that the marriage to the petitioner is void, considering that the
first marriage on April 25, 1955 to Alice Diaz was not previously
annulled, invalidated or otherwise dissolved during the lifetime
of the parties thereto. x x x as determined through the
investigation conducted by the SSS, Clemente Bailon was the
abandoning spouse, not Alice Diaz Bailon.
xxxx
It having been established, by substantial evidence, that the
petitioner was just a common-law wife of the deceased member,
it necessarily follows that she is not entitled as a primary
beneficiary, to the latters death benefit. x x x
xxxx
It having been determined that Teresita Jarque was not the
legitimate surviving spouse and primary beneficiary of Clemente
Bailon, it behooves her to refund the total amount of death
benefit she received from the SSS for the period from February
1998 until May 1999 pursuant to the principle of solutio indebiti
xxx
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 Reconsideration34 having been denied

by Order of June 4, 2003, she filed a petition for review35
before the Court of Appeals (CA).
By Decision of June 23, 2004, the CA reversed and set aside the
April 2, 2003 Resolution and June 4, 2003 Order of the SSC and
thus ordered the SSS to pay respondent all the pension benefits
due her. Held the CA:
x x x [T]he paramount concern in this case transcends the issue
of whether or not the decision of the then CFI, now RTC,
declaring Alice Diaz presumptively dead has attained finality
but, more importantly, whether or not the respondents SSS and
Commission can validly re-evaluate the findings of the RTC, and
on its own, declare the latters decision to be bereft of any basis.
On similar import, can respondents SSS and Commission validly
declare the first marriage subsisting and the second marriage null
and void?
xxxx
x x x while it is true that a judgment declaring a person
presumptively dead never attains finality as the finding that "the
person is unheard of in seven years is merely a presumption juris
tantum," the second marriage contracted by a person with an
absent spouse endures until annulled. It is only the competent
court that can nullify the second marriage pursuant to Article 87
of the Civil Code and upon the reappearance of the missing
spouse, which action for annulment may be filed. Nowhere does
the law contemplates [sic] the possibility that respondent SSS
may validly declare the second marriage null and void on the

basis alone of its own investigation and declare that the decision
of the RTC declaring one to be presumptively dead is without
basis.
Respondent SSS cannot arrogate upon itself the authority to
review the decision of the regular courts under the pretext of
determining the actual and lawful beneficiaries of its members.
Notwithstanding its opinion as to the soundness of the findings
of the RTC, it should extend due credence to the decision of the
RTC absent of [sic] any judicial pronouncement to the contrary.
xxx
x x x [A]ssuming arguendo that respondent SSS actually
possesses the authority to declare the decision of the RTC to be
without basis, the procedure it followed was offensive to the
principle of fair play and thus its findings are of doubtful quality
considering that petitioner Teresita was not given ample
opportunity to present evidence for and her behalf.
xxxx
Respondent SSS is correct in stating that the filing of an
Affidavit of Reappearance with the Civil Registry is no longer
practical under the premises. Indeed, there is no more first
marriage to restore as the marital bond between Alice Diaz and
Clemente Bailon was already terminated upon the latters death.
Neither is there a second marriage to terminate because the
second marriage was likewise dissolved by the death of
Clemente Bailon.
However, it is not correct to conclude that simply because the

filing of the Affidavit of Reappearance with the Civil Registry

where parties to the subsequent marriage reside is already
inutile, the respondent SSS has now the authority to review the
decision of the RTC and consequently declare the second
marriage null and void.36(Emphasis and underscoring supplied)
The SSC and the SSS separately filed their Motions for
Reconsideration37 which were both denied for lack of merit.
Hence, the SSS present petition for review on certiorari38
anchored on the following grounds:
I
THE DECISION OF THE HONORABLE COURT OF
APPEALS IS CONTRARY TO LAW.
II
THE HONORABLE COURT OF APPEALS GRAVELY
ABUSED ITS DISCRETION AMOUNTING TO LACK OF
JURISDICTION.39
The SSS faults the CA for failing to give due consideration to
the findings of facts of the SSC on the prior and subsisting
marriage between Bailon and Alice; in disregarding the authority
of the SSC to determine to whom, between Alice and
respondent, the death benefits should be awarded pursuant to
Section 540 of the Social Security Law; and in declaring that the
SSS did not give respondent due process or ample opportunity to
present evidence in her behalf.

The SSS submits that "the observations and findings relative to

the CFI proceedings are of no moment to the present
controversy, as the same may be considered only as obiter dicta
in view of the SSCs finding of the existence of a prior and
subsisting marriage between Bailon and Alice by virtue of which
Alice has a better right to the death benefits."41
The petition fails.
That the SSC is empowered to settle any dispute with respect to
SSS coverage, benefits and contributions, there is no doubt. In
so exercising such power, however, it cannot review, much less
reverse, decisions rendered by courts of law as it did in the case
at bar when it declared that the December 10, 1970 CFI Order
was obtained through fraud and subsequently disregarded the
same, making its own findings with respect to the validity of
Bailon and Alices marriage on the one hand and the invalidity
of Bailon and respondents marriage on the other.
In interfering with and passing upon the CFI Order, the SSC
virtually acted as an appellate court. The law does not give the
SSC unfettered discretion to trifle with orders of regular courts
in the exercise of its authority to determine the beneficiaries of
the SSS.
The two marriages involved herein having been solemnized
prior to the effectivity on August 3, 1988 of the Family Code,
the applicable law to determine their validity is the Civil Code
which was the law in effect at the time of their celebration.42
Article 83 of the Civil Code43 provides:

Art. 83. Any marriage subsequently contracted by any person

during the lifetime of the first spouse of such person with any
person other than such first spouse shall be illegal and void from
its performance, unless:
(1) The first marriage was annulled or dissolved; or
(2) The first spouse had been absent for seven consecutive
years at the time of the second marriage without the spouse
present having news of the absentee being alive, or if the
absentee, though he has been absent for less than seven
years, is generally considered as dead and believed to be so
by the spouse present at the time of contracting such
subsequent marriage, or if the absentee is presumed dead
according to Articles 390 and 391. The marriage so
contracted shall be valid in any of the three cases until
declared null and void by a competent court. (Emphasis and
underscoring supplied)
Under the foregoing provision of the Civil Code, a subsequent
marriage contracted during the lifetime of the first spouse is
illegal and void ab initio unless the prior marriage is first
annulled or dissolved or contracted under any of the three
exceptional circumstances. It bears noting that the marriage
under any of these exceptional cases is deemed valid "until
declared null and void by a competent court." It follows that the
onus probandi in these cases rests on the party assailing the
second marriage.44
In the case at bar, as found by the CFI, Alice had been absent for
15 consecutive years45 when Bailon sought the declaration of

her presumptive death, which judicial declaration was not even a

requirement then for purposes of remarriage.46
Eminent jurist Arturo M. Tolentino (now deceased) commented:
Where a person has entered into two successive marriages, a
presumption arises in favor of the validity of the second
marriage, and the burden is on the party attacking the validity of
the second marriage to prove that the first marriage had not been
dissolved; it is not enough to prove the first marriage, for it must
also be shown that it had not ended when the second marriage
was contracted. The presumption in favor of the innocence of the
defendant from crime or wrong and of the legality of his second
marriage, will prevail over the presumption of the continuance
of life of the first spouse or of the continuance of the marital
relation with such first spouse.47(Underscoring supplied)
Under the Civil Code, a subsequent marriage being voidable,48
it is terminated by final judgment of annulment in a case
instituted by the absent spouse who reappears or by either of the
spouses in the subsequent marriage.
Under the Family Code, no judicial proceeding to annul a
subsequent marriage is necessary. Thus Article 42 thereof
provides:
Art. 42. The subsequent marriage referred to in the preceding
Article shall be automatically terminated by therecording of the
affidavit of reappearance of the absent spouse, unless there is a
judgment annulling the previous marriage or declaring it void ab
initio.

A sworn statement of the fact and circumstances of reappearance

shall be recorded in the civil registry of the residence of the
parties to the subsequent marriage at the instance of any
interested person, with due notice to the spouses of the
subsequent marriage and without prejudice to the fact of
reappearance being judicially determined in case such fact is
disputed. (Emphasis and underscoring supplied)
The termination of the subsequent marriage by affidavit
provided by the above-quoted provision of the Family Code
does not preclude the filing of an action in court to prove the
reappearance of the absentee and obtain a declaration of
dissolution or termination of the subsequent marriage.49
If the absentee reappears, but no step is taken to terminate the
subsequent marriage, either by affidavit or by court action, such
absentees mere reappearance, even if made known to the
spouses in the subsequent marriage, will not terminate such
marriage.50 Since the second marriage has been contracted
because of a presumption that the former spouse is dead, such
presumption continues inspite of the spouses physical
reappearance, and by fiction of law, he or she must still be
regarded as legally an absentee until the subsequent marriage is
terminated as provided by law.51
If the subsequent marriage is not terminated by registration of an
affidavit of reappearance or by judicial declaration but by death
of either spouse as in the case at bar, Tolentino submits:
x x x [G]enerally if a subsequent marriage is dissolved by the
death of either spouse, the effects of dissolution of valid

marriages shall arise. The good or bad faith of either spouse can
no longer be raised, because, as in annullable or voidable
marriages, the marriage cannot be questioned except in a direct
action for annulment.52(Underscoring supplied)

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.

Similarly, Lapuz v. Eufemio53 instructs:

In light of the foregoing discussions, consideration of the other

issues raised has been rendered unnecessary.

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

WHEREFORE, the petition is DENIED.

No costs.
SO ORDERED.