THIRD DIVISION

G.R. No. 165545 March 24, 2006

SOCIAL SECURITY SYSTEM vs. TERESITA JARQUE VDA. DE BAILON

Facts:

Clemente G. Bailon (Bailon) and Alice P. Diaz (Alice) contracted marriage in Barcelona, Sorsogon. More
than 15 years, Bailon filed before the then Court of First Instance a petition to declare Alice presumptively dead
which was granted. Close to 13 years after his wife Alice was declared presumptively dead Bailon contracted
marriage with Teresita Jarque (respondent). Bailon, who was a member of the Social Security System and a retiree
pensioner thereof, died. Respondent filed a claim for funeral benefits. Cecilia Bailon-Yap (Cecilia), who claimed to
be a daughter of Bailon and one Elisa Jayona (Elisa) contested before the SSS the release to respondent of the death
and funeral benefits. She claimed that Bailon contracted three marriages in his lifetime, the first with Alice, the
second with her mother Elisa, and the third with respondent, all of whom are still alive; she, together with her
siblings, paid for Bailons medical and funeral expenses; and all the documents submitted by respondent to the SSS
in support of her claims are spurious. SSS stopped the release of pension to respondent.
Issue: Whether or not the subsequent marriage of Bailon to respondent is bigamous?
Ruling:
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. Upon the death
of either, the marriage cannot be impeached, and is made good ab initio. In the case at bar, as no step was taken to
nullify, in accordance with law, Bailons and respondents marriage prior to the formers death in 1998, respondent is
rightfully the dependent spouse-beneficiary of Bailon. In 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.

EDUARDO P. MANUEL, G.R. No. 165842

Petitioner,
Present:
PUNO, J., Chairman,
 AUSTRIA-MARTINEZ, - versus - CALLEJO, SR.,
TINGA, and
CHICO-NAZARIO,* JJ.
Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent. November 29, 2005

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

DECISION

CALLEJO, SR., J.:

Before us is a petition for review on certiorari of the Decision[1] of the Court of

Appeals (CA) in CA-G.R. CR No. 26877, affirming the Decision [2] of the Regional
Trial Court (RTC) of Baguio City, Branch 3, convicting Eduardo P. Manuel of
bigamy in Criminal Case No. 19562-R.

Eduardo was charged with bigamy in an Information filed on November 7, 2001,

the accusatory portion of which reads:

That on or about the 22nd day of April, 1996, in the City of Baguio,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused EDUARDO P. MANUEL, being then previously and legally married to
RUBYLUS [GAA] and without the said marriage having been legally dissolved,
did then and there willfully, unlawfully and feloniously contract a second
marriage with TINA GANDALERA-MANUEL, herein complainant, who does
not know the existence of the first marriage of said EDUARDO P. MANUEL to
Rubylus [Gaa].

CONTRARY TO LAW. [3]

The prosecution adduced evidence that on July 28, 1975, Eduardo was married to
Rubylus Gaa before Msgr. Feliciano Santos in Makati, which was then still a
municipality of the Province of Rizal. [4] He met the private complainant Tina B.
Gandalera in Dagupan City sometime in January 1996. She stayed in Bonuan,
Dagupan City for two days looking for a friend. Tina was then 21 years old, a
Computer Secretarial student, while Eduardo was 39. Afterwards, Eduardo went to
Baguio City to visit her. Eventually, as one thing led to another, they went to a
motel where, despite Tinas resistance, Eduardo succeeded in having his way with
her. Eduardo proposed marriage on several occasions, assuring her that he was
single. Eduardo even brought his parents to Baguio City to meet Tinas parents, and
was assured by them that their son was still single.

Tina finally agreed to marry Eduardo sometime in the first week of March
1996. They were married on April 22, 1996 before Judge Antonio C. Reyes, the
Presiding Judge of the RTC of Baguio City, Branch 61.[5] It appeared in their
marriage contract that Eduardo was single.

The couple was happy during the first three years of their married life.
Through their joint efforts, they were able to build their home in Cypress Point,
Irisan, Baguio City. However, starting 1999, Manuel started making himself scarce
and went to their house only twice or thrice a year. Tina was jobless, and whenever
she asked money from Eduardo, he would slap her.[6] Sometime in January 2001,
Eduardo took all his clothes, left, and did not return. Worse, he stopped giving
financial support.

Sometime in August 2001, Tina became curious and made inquiries from the
National Statistics Office (NSO) in Manila where she learned that Eduardo had
been previously married. She secured an NSO-certified copy of the marriage
contract.[7] She was so embarrassed and humiliated when she learned that Eduardo
was in fact already married when they exchanged their own vows.[8]

For his part, Eduardo testified that he met Tina sometime in 1995 in a bar where
she worked as a Guest Relations Officer (GRO). He fell in love with her and
married her. He informed Tina of his previous marriage to Rubylus Gaa, but she
nevertheless agreed to marry him. Their marital relationship was in order until this
one time when he noticed that she had a love-bite on her neck. He then abandoned
her. Eduardo further testified that he declared he was single in his marriage
contract with Tina because he believed in good faith that his first marriage was
invalid. He did not know that he had to go to court to seek for the nullification of
his first marriage before marrying Tina.

Eduardo further claimed that he was only forced to marry his first wife
because she threatened to commit suicide unless he did so. Rubylus was charged
with estafa in 1975 and thereafter imprisoned. He visited her in jail after three
months and never saw her again. He insisted that he married Tina believing that his
first marriage was no longer valid because he had not heard from Rubylus for more
than 20 years.

After trial, the court rendered judgment on July 2, 2002 finding Eduardo guilty
beyond reasonable doubt of bigamy. He was sentenced to an indeterminate penalty
of from six (6) years and ten (10) months, as minimum, to ten (10) years, as
maximum, and directed to indemnify the private complainant Tina Gandalera the
amount of P200,000.00 by way of moral damages, plus costs of suit.[9]

The trial court ruled that the prosecution was able to prove beyond reasonable
doubt all the elements of bigamy under Article 349 of the Revised Penal Code. It
declared that Eduardos belief, that his first marriage had been dissolved because of
his first wifes 20-year absence, even if true, did not exculpate him from liability for
bigamy. Citing the ruling of this Court in People v. Bitdu,[10] the trial court further
ruled that even if the private complainant had known that Eduardo had been
previously married, the latter would still be criminally liable for bigamy.
Eduardo appealed the decision to the CA. He alleged that he was not
criminally liable for bigamy because when he married the private complainant, he
did so in good faith and without any malicious intent. He maintained that at the
time that he married the private complainant, he was of the honest belief that his
first marriage no longer subsisted. He insisted that conformably to Article 3 of the
Revised Penal Code, there must be malice for one to be criminally liable for a
felony. He was not motivated by malice in marrying the private complainant
because he did so only out of his overwhelming desire to have a fruitful marriage.
He posited that the trial court should have taken into account Article 390 of the
New Civil Code. To support his view, the appellant cited the rulings of this Court
in United States v. Pealosa[11] and Manahan, Jr. v. Court of Appeals.[12]

The Office of the Solicitor General (OSG) averred that Eduardos defense of
good faith and reliance on the Courts ruling in United States v. Enriquez[13] were
misplaced; what is applicable is Article 41 of the Family Code, which amended
Article 390 of the Civil Code. Citing the ruling of this Court in Republic v.
Nolasco,[14] the OSG further posited that as provided in Article 41 of the Family
Code, there is a need for a judicial declaration of presumptive death of the absent
spouse to enable the present spouse to marry. Even assuming that the first marriage
was void, the parties thereto should not be permitted to judge for themselves the
nullity of the marriage;
the matter should be submitted to the proper court for resolution. Moreover,
the OSG maintained, the private complainants knowledge of the first marriage
would not afford any relief since bigamy is an offense against the State and not just
against the private complainant.

However, the OSG agreed with the appellant that the penalty imposed by the
trial court was erroneous and sought the affirmance of the decision appealed from
with modification.

On June 18, 2004, the CA rendered judgment affirming the decision of

the RTC with modification as to the penalty of the accused. It ruled that the
prosecution was able to prove all the elements of bigamy. Contrary to the
contention of the appellant, Article 41 of the Family Code should apply. Before
Manuel could lawfully marry the private complainant, there should have been a
judicial declaration of Gaas presumptive death as the absent spouse. The appellate
court cited the rulings of this Court in Mercado v. Tan[15] and Domingo v. Court of
Appeals[16] to support its ruling. The dispositive portion of the decision reads:

WHEREFORE, in the light of the foregoing, the Decision promulgated on

July 31, 2002 is hereby MODIFIED to reflect, as it hereby reflects, that accused-
appellant is sentenced to an indeterminate penalty of two (2) years, four (4)
months and one (1) day of prision correccional, as minimum, to ten (10) years
of prision mayor as maximum. Said Decision is AFFIRMED in all other
respects.

SO ORDERED.[17]

Eduardo, now the petitioner, filed the instant petition for review on
certiorari, insisting that:

I
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW
WHEN IT RULED THAT PETITIONERS FIRST WIFE CANNOT BE
LEGALLY PRESUMED DEAD UNDER ARTICLE 390 OF THE CIVIL CODE
AS THERE WAS NO JUDICIAL DECLARATION OF PRESUMPTIVE DEATH
AS PROVIDED FOR UNDER ARTICLE 41 OF THE FAMILY CODE.

II
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW
WHEN IT AFFIRMED THE AWARD OF PHP200,000.00 AS MORAL
DAMAGES AS IT HAS NO BASIS IN FACT AND IN LAW.[18]

The petitioner maintains that the prosecution failed to prove the second element of
the felony, i.e., that the marriage has not been legally dissolved or, in case his/her
spouse is absent, the absent spouse could not yet be presumed dead under the Civil
Code. He avers that when he married Gandalera in 1996, Gaa had been absent for
21 years since 1975; under Article 390 of the Civil Code, she was presumed dead
as a matter of law. He points out that, under the first paragraph of Article 390 of the
Civil Code, one who has been absent for seven years, whether or not he/she is still
alive, shall be presumed dead for all purposes except for succession, while the
second paragraph refers to the rule on legal presumption of death with respect to
succession.
 The petitioner asserts that the presumptive death of the absent spouse arises
by operation of law upon the satisfaction of two requirements: the
specified period and the present spouses reasonable belief that the absentee is dead.
He insists that he was able to prove that he had not heard from his first wife since
1975 and that he had no knowledge of her whereabouts or whether she was still
alive; hence, under Article 41 of the Family Code, the presumptive death of Gaa
had arisen by operation of law, as the two requirements of Article 390 of the Civil
Code are present. The petitioner concludes that he should thus be acquitted of the
crime of bigamy.

The petitioner insists that except for the period of absences provided for in
Article 390 of the Civil Code, the rule therein on legal presumptions remains valid
and effective. Nowhere under Article 390 of the Civil Code does it require that
there must first be a judicial declaration of death before the rule on presumptive
death would apply. He further asserts that contrary to the rulings of the trial and
appellate courts, the requirement of a judicial declaration of presumptive death
under Article 41 of the Family Code is only a requirement for the validity of the
subsequent or second marriage.

The petitioner, likewise, avers that the trial court and the CA erred in awarding
moral damages in favor of the private complainant. The private complainant was a
GRO before he married her, and even knew that he was already married. He
genuinely loved and took care of her and gave her financial support. He also
pointed out that she had an illicit relationship with a lover whom she brought to
their house.

In its comment on the petition, the OSG maintains that the decision of the CA
affirming the petitioners conviction is in accord with the law, jurisprudence and the
evidence on record. To bolster its claim, the OSG cited the ruling of this Court
in Republic v. Nolasco.[19]

The petition is denied for lack of merit.

Article 349 of the Revised Penal Code, which defines and penalizes bigamy, reads:

Art. 349. Bigamy. The penalty of prision mayor shall be imposed upon any person
who shall contract a second or subsequent marriage before the former marriage
has been legally dissolved, or before the absent spouse has been declared
presumptively dead by means of a judgment rendered in the proper proceedings.

The provision was taken from Article 486 of the Spanish Penal Code, to wit:

El que contrajere Segundo o ulterior matrimonio sin hallarse legtimamente

disuelto el anterior, ser castigado con la pena de prision mayor. xxx

The reason why bigamy is considered a felony is to preserve and ensure the
juridical tie of marriage established by law.[20] The phrase or before the absent
spouse had been declared presumptively dead by means of a judgment rendered in
the proper proceedings was incorporated in the Revised Penal Code because the
drafters of the law were of the impression that in consonance with the civil law
which provides for the presumption of death after an absence of a number of
years, the judicial declaration of presumed death like annulment of
marriage should be a justification for bigamy.[21]

For the accused to be held guilty of bigamy, the prosecution is burdened to prove
the felony: (a) he/she has been legally married; and (b) he/she contracts a
subsequent marriage without the former marriage having been lawfully dissolved.
The felony is consummated on the celebration of the second marriage or
subsequent marriage.[22] It is essential in the prosecution for bigamy that the alleged
second marriage, having all the essential requirements, would be valid were it not
for the subsistence of the first marriage. [23] Viada avers that a third element of the
crime is that the second marriage must be entered into with fraudulent
intent (intencion fraudulente) which is an essential element of a felony by dolo.
[24]
On the other hand, Cuello Calon is of the view that there are only two elements
of bigamy: (1) the existence of a marriage that has not been lawfully dissolved; and
(2) the celebration of a second marriage. It does not matter whether the first
marriage is void or voidable because such marriages have juridical effects until
lawfully dissolved by a court of competent jurisdiction. [25] As the Court ruled
in Domingo v. Court of Appeals[26] and Mercado v. Tan,[27] under the Family Code
of the Philippines, the judicial declaration of nullity of a previous marriage is a
defense.

In his commentary on the Revised Penal Code, Albert is of the same view as
Viada and declared that there are three (3) elements of bigamy: (1) an undissolved
marriage; (2) a new marriage; and (3) fraudulent intention constituting the felony
of the act.[28] He explained that:

This last element is not stated in Article 349, because it is undoubtedly

incorporated in the principle antedating all codes, and, constituting one of the
landmarks of our Penal Code, that, where there is no willfulness there is no crime.
There is no willfulness if the subject
believes that the former marriage has been dissolved; and this must be supported
by very strong evidence, and if this be produced, the act shall be deemed not to
constitute a crime. Thus, a person who contracts a second marriage in the
reasonable and well-founded belief that his first wife is dead, because of the many
years that have elapsed since he has had any news of her whereabouts, in spite of
his endeavors to find her, cannot be deemed guilty of the crime of bigamy,
because there is no fraudulent intent which is one of the essential elements of the
crime.[29]

As gleaned from the Information in the RTC, the petitioner is charged with bigamy,
a felony by dolo (deceit). Article 3, paragraph 2 of the Revised Penal Code
provides that there is deceit when the act is performed with deliberate intent.
Indeed, a felony cannot exist without intent. Since a felony by dolo is classified as
an intentional felony, it is deemed voluntary.[30] Although the words with malice do
not appear in Article 3 of the Revised Penal Code, such phrase is included in the
word voluntary.[31]

Malice is a mental state or condition prompting the doing of an overt act

without legal excuse or justification from which another suffers injury.[32] When the
act or omission defined by law as a felony is proved to have been done or
committed by the accused, the law presumes it to have been intentional. [33] Indeed,
it is a legal presumption of law that every man intends the natural or probable
consequence of his voluntary act in the absence of proof to the contrary, and such
presumption must prevail unless a reasonable doubt exists from a consideration of
the whole evidence.[34]

For one to be criminally liable for a felony by dolo, there must be a confluence of
both an evil act and an evil intent. Actus non facit reum, nisi mens sit rea.[35]

In the present case, the prosecution proved that the petitioner was married to Gaa
in 1975, and such marriage was not judicially declared a nullity; hence, the
marriage is presumed to subsist.[36] The prosecution also proved that the petitioner
married the private complainant in 1996, long after the effectivity of the Family
Code.

The petitioner is presumed to have acted with malice or evil intent when he
married the private complainant. As a general rule, mistake of fact or good faith of
the accused is a valid defense in a prosecution for a felony by dolo; such defense
negates malice or criminal intent. However, ignorance of the law is not an excuse
because everyone is presumed to know the law. Ignorantia legis neminem excusat.

It was the burden of the petitioner to prove his defense that when he married
the private complainant in 1996, he was of the well-grounded belief
that his first wife was already dead, as he had not heard from her for more than 20
years since 1975. He should have adduced in evidence a decision of a competent
court declaring the presumptive death of his first wife as required by Article 349 of
the Revised Penal Code, in relation to Article 41 of the Family Code. Such judicial
declaration also constitutes proof that the petitioner acted in good faith, and would
negate criminal intent on his part when he married the private complainant and, as
a consequence, he could not be held guilty of bigamy in such case. The petitioner,
however, failed to discharge his burden.
 The phrase or before the absent spouse has been declared presumptively
dead by means of a judgment rendered on the proceedings in Article 349 of the
Revised Penal Code was not an aggroupment of empty or useless words. The
requirement for a judgment of the presumptive death of the absent spouse is for the
benefit of the spouse present, as protection from the pains and the consequences of
a second marriage, precisely because he/she could be charged and convicted of
bigamy if the defense of good faith based on mere testimony is found incredible.

The requirement of judicial declaration is also for the benefit of the State.
Under Article II, Section 12 of the Constitution, the State shall protect and
strengthen the family as a basic autonomous social institution. Marriage is a social
institution of the highest importance. Public policy, good morals and the interest of
society require that the marital relation should be surrounded with every safeguard
and its severance only in the manner prescribed and the causes specified by law.
[37]
The laws regulating civil marriages are necessary to serve the interest, safety,
good order, comfort or general welfare of the community and the parties can waive
nothing essential to the validity of the proceedings. A civil marriage anchors an
ordered society by encouraging stable relationships over transient ones; it enhances
the welfare of the community.

In a real sense, there are three parties to every civil marriage; two willing
spouses and an approving State. On marriage, the parties assume new relations to
each other and the State touching nearly on every aspect of life and death. The
consequences of an invalid marriage to the parties, to innocent parties and to
society, are so serious that the law may well take means calculated to ensure the
procurement of the most positive evidence of death of the first spouse or of the
presumptive death of the absent spouse [38] after the lapse of the period provided for
under the law. One such means is the requirement of the declaration by a
competent court of the presumptive death of an absent spouse as proof that the
present spouse contracts a subsequent marriage on a well-grounded belief of the
death of the first spouse. Indeed, men readily believe what they wish to be true, is a
maxim of the old jurists. To sustain a second marriage and to vacate a first because
one of the parties believed the other to be dead would make the existence of the
marital relation determinable, not by certain extrinsic facts, easily capable of
forensic ascertainment and proof, but by the subjective condition of individuals.
[39]
Only with such proof can marriage be treated as so dissolved as to permit
second marriages.[40] Thus, Article 349 of the Revised Penal Code has made the
dissolution of marriage dependent not only upon the personal belief of parties, but
upon certain objective facts easily capable of accurate judicial cognizance,
[41]
namely, a judgment of the presumptive death of the absent spouse.

The petitioners sole reliance on Article 390 of the Civil Code as basis for his
acquittal for bigamy is misplaced.

Articles 390 and 391 of the Civil Code provide

Art. 390. After an absence of seven years, it being unknown whether or not, the
absentee still lives, he shall be presumed dead for all purposes, except for those of
succession.

The absentee shall not be presumed dead for the purpose of opening his
succession till after an absence of ten years. If he disappeared after the age of
seventy-five years, an absence of five years shall be sufficient in order that his
succession may be opened.

Art. 391. The following shall be presumed dead for all purposes, including the
division of the estate among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aeroplane

which is missing, who has not been heard of for four years since the
loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has been
missing for four years;
(3) A person who has been in danger of death under other circumstances
and his existence has not been known for four years.

The presumption of death of the spouse who had been absent for seven
years, it being unknown whether or not the absentee still lives, is created by law
and arises without any necessity of judicial declaration. [42] However, Article 41 of
the Family Code, which amended the foregoing rules on presumptive death, reads:
 Art. 41. A marriage contracted by any person during the subsistence of a previous
marriage shall be null and void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four consecutive years and the
spouse present had a well-founded belief that the absent spouse was already dead.
In case of disappearance where there is danger of death under the circumstances
set forth in the provisions of Article 391 of the Civil Code, an absence of only two
years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding
paragraph, the spouse present must institute a summary proceeding as provided
in this Court for the declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse.[43]

With the effectivity of the Family Code, [44] the period of seven years under
the first paragraph of Article 390 of the Civil Code was reduced to four
consecutive years. Thus, before the spouse present may contract a subsequent
marriage, he or she must institute summary proceedings for the declaration of the
presumptive death of the absentee spouse,[45] without prejudice to the effect of the
reappearance of the absentee spouse. As explained by this Court in Armas v.
Calisterio:[46]

In contrast, under the 1988 Family Code, in order that a subsequent

bigamous marriage may exceptionally be considered valid, the following
conditions must concur, viz.: (a) The prior spouse of the contracting party must
have been absent for four consecutive years, or two years where there is danger of
death under the circumstances stated in Article 391 of the Civil Code at the time
of disappearance; (b) the spouse present has a well-founded belief that the absent
spouse is already dead; and (c) there is, unlike the old rule, a judicial declaration
of presumptive death of the absentee for which purpose the spouse present can
institute a summary proceeding in court to ask for that declaration. The last
condition is consistent and in consonance with the requirement of judicial
intervention in subsequent marriages as so provided in Article 41, in relation to
Article 40, of the Family Code.

The Court rejects petitioners contention that the requirement of instituting a

petition for declaration of presumptive death under Article 41 of the Family Code
is designed merely to enable the spouse present to contract a valid second marriage
and not for the acquittal of one charged with bigamy. Such provision was designed
to harmonize civil law and Article 349 of the Revised Penal Code, and put to rest
the confusion spawned by the rulings of this Court and comments of eminent
authorities on Criminal Law.

As early as March 6, 1937, this Court ruled in Jones v. Hortiguela[47] that, for
purposes of the marriage law, it is not necessary to have the former spouse
judicially declared an absentee before the spouse present may contract a
subsequent marriage. It held that the declaration of absence made in accordance
with the provisions of the Civil Code has for its sole purpose the taking of the
necessary precautions for the administration of the estate of the absentee. For the
celebration of civil marriage, however, the law only requires that the former spouse
had been absent for seven consecutive years at the time of the second marriage,
that the spouse present does not know his or her former spouse to be living, that
such former spouse is generally reputed to be dead and the spouse present so
believes at the time of the celebration of the marriage. [48] In In Re Szatraw,[49] the
Court declared that a judicial declaration that a person is presumptively dead,
because he or she had been unheard from in seven years, being a presumption juris
tantum only, subject to contrary proof, cannot reach the stage of finality or become
final; and that proof of actual death of the person presumed dead being unheard
from in seven years, would have to be made in another proceeding to have such
particular fact finally determined. The Court ruled that if a judicial decree
declaring a person presumptively dead because he or she had not been heard from
in seven years cannot become final and executory even after the lapse of the
reglementary period within which an appeal may be taken, for such presumption is
still disputable and remains subject to contrary proof, then a petition for such a
declaration is useless, unnecessary, superfluous and of no benefit to the petitioner.
The Court stated that it should not waste its valuable time and be made to perform
a superfluous and meaningless act.[50] The Court also took note that a petition for a
declaration of the presumptive death of an absent spouse may even be made in
collusion with the other spouse.

In Lukban v. Republic of the Philippines,[51] the Court declared that the words
proper proceedings in Article 349 of the Revised Penal Code can only refer to
those authorized by law such as Articles 390 and 391 of the Civil Code which refer
to the administration or settlement of the estate of a deceased person. In Gue v.
Republic of the Philippines,[52] the Court rejected the contention of the petitioner
therein that, under Article 390 of the Civil Code, the courts are authorized to
declare the presumptive death of a person after an absence of seven years. The
Court reiterated its rulings in Szatraw, Lukban and Jones.

Former Chief Justice Ramon C. Aquino was of the view that the provision of
Article 349 or before the absent spouse has been declared presumptively dead by
means of a judgment reached in the proper proceedings is erroneous and should be
considered as not written. He opined that such provision presupposes that, if the
prior marriage has not been legally dissolved and the absent first spouse has not
been declared presumptively dead in a proper court proceedings, the subsequent
marriage is bigamous. He maintains that the supposition is not true. [53] A second
marriage is bigamous only when the circumstances in paragraphs 1 and 2 of Article
83 of the Civil Code are not present.[54] Former Senator Ambrosio Padilla was,
likewise, of the view that Article 349 seems to require judicial decree of
dissolution or judicial declaration of absence but even with such decree, a second
marriage in good faith will not constitute bigamy. He posits that a second marriage,
if not illegal, even if it be annullable, should not give rise to bigamy. [55] Former
Justice Luis B. Reyes, on the other hand, was of the view that in the case of an
absent spouse who could not yet be presumed dead according to the Civil Code,
the spouse present cannot be charged and convicted of bigamy in case he/she
contracts a second marriage.[56]

The Committee tasked to prepare the Family Code proposed the

amendments of Articles 390 and 391 of the Civil Code to conform to Article 349 of
the Revised Penal Code, in that, in a case where a spouse is absent for the requisite
period, the present spouse may contract a subsequent marriage only after securing
a judgment declaring the presumptive death of the absent spouse to avoid being
charged and convicted of bigamy; the present spouse will have to adduce evidence
that he had a well-founded belief that the absent spouse was already dead. [57] Such
judgment is proof of the good faith of the present spouse who contracted a
subsequent marriage; thus, even if the present spouse is later charged with bigamy
if the absentee spouse reappears, he cannot be convicted of the crime. As explained
by former Justice Alicia Sempio-Diy:

Such rulings, however, conflict with Art. 349 of the Revised Penal Code
providing that the present spouse must first ask for a declaration of presumptive
death of the absent spouse in order not to be guilty of bigamy in case he or she
marries again.

The above Article of the Family Code now clearly provides that for the
purpose of the present spouse contracting a second marriage, he or she must file a
summary proceeding as provided in the Code for the declaration of the
presumptive death of the absentee, without prejudice to the latters reappearance.
This provision is intended to protect the present spouse from a criminal
prosecution for bigamy under Art. 349 of the Revised Penal Code because with
the judicial declaration that the missing spouses presumptively dead, the good
faith of the present spouse in contracting a second marriage is already established.
[58]

Of the same view is former Dean Ernesto L. Pineda (now Undersecretary of

Justice) who wrote that things are now clarified. He says judicial declaration of
presumptive death is now authorized for purposes of
remarriage. The present spouse must institute a summary proceeding for
declaration of presumptive death of the absentee, where the ordinary rules of
procedure in trial will not be followed. Affidavits will suffice, with possible
clarificatory examinations of affiants if the Judge finds it necessary for a full grasp
of the facts. The judgment declaring an absentee as presumptively dead is without
prejudice to the effect of reappearance of the said absentee.

Dean Pineda further states that before, the weight of authority is that the
clause before the absent spouse has been declared presumptively dead x x x should
be disregarded because of Article 83, paragraph 3 of the Civil Code. With the new
law, there is a need to institute a summary proceeding for the declaration of the
presumptive death of the absentee, otherwise, there is bigamy.[59]
According to Retired Supreme Court Justice Florenz D. Regalado, an eminent
authority on Criminal Law, in some cases where an absentee spouse is believed to
be dead, there must be a judicial declaration of presumptive death, which could
then be made only in the proceedings for the settlement of his estate. [60] Before
such declaration, it was held that the remarriage of the other spouse is bigamous
even if done in good faith.[61] Justice Regalado opined that there were contrary
views because of the ruling in Jones and the provisions of Article 83(2) of the Civil
Code, which, however, appears to have been set to rest by Article 41 of the Family
Code, which requires a summary hearing for the declaration of presumptive death
of the absent spouse before the other spouse can remarry.

Under Article 238 of the Family Code, a petition for a declaration of the
presumptive death of an absent spouse under Article 41 of the Family Code may be
filed under Articles 239 to 247 of the same Code.[62]

On the second issue, the petitioner, likewise, faults the trial court and the CA for
awarding moral damages in favor of the private complainant. The petitioner
maintains that moral damages may be awarded only in any of the cases provided in
Article 2219 of the Civil Code, and bigamy is not one of them. The petitioner
asserts that the appellate court failed to apply its ruling in People v. Bondoc,
[63]
where an award of moral damages for bigamy was disallowed. In any case, the
petitioner maintains, the private complainant failed to adduce evidence to prove
moral damages.

The appellate court awarded moral damages to the private complainant on its
finding that she adduced evidence to prove the same. The appellate court ruled that
while bigamy is not included in those cases enumerated in Article 2219 of the Civil
Code, it is not proscribed from awarding moral damages against the petitioner. The
appellate court ruled that it is not bound by the following ruling in People v.
Bondoc:

... Pero si en dichos asuntos se adjudicaron daos, ello se debi indedublamente

porque el articulo 2219 del Cdigo Civil de Filipinas autoriza la adjudicacin de
daos morales en los delitos de estupro, rapto, violacin, adulterio o concubinato, y
 otros actos lascivos, sin incluir en esta enumeracin el delito de bigamia. No
existe, por consiguiente, base legal para adjudicar aqu los daos de P5,000.00
arriba mencionados.[64]

The OSG posits that the findings and ruling of the CA are based on the
evidence and the law. The OSG, likewise, avers that the CA was not bound by its
ruling in People v. Rodeo.

The Court rules against the petitioner.

Moral damages include physical suffering, mental anguish, fright, serious

anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation,
and similar injury. Though incapable of pecuniary computation, moral damages
may be recovered if they are the proximate result of the defendants wrongful act or
omission.[65] An award for moral damages requires the confluence of the following
conditions: first, there must be an injury, whether physical, mental or
psychological, clearly sustained by the claimant; second, there must be culpable act
or omission factually established; third, the wrongful act or omission of the
defendant is the proximate cause of the injury sustained by the claimant;
and fourth, the award of damages is predicated on any of the cases stated in Article
2219 or Article 2220 of the Civil Code.[66]

Moral damages may be awarded in favor of the offended party only in

criminal cases enumerated in Article 2219, paragraphs 1, 3, 4, 5 and 7 of the Civil
Code and analogous cases, viz.:
Art. 2219. Moral damages may be recovered in the following and analogous
cases.

(1) A criminal offense resulting in physical injuries;

(2) Quasi-delicts causing physical injuries;
(3) Seduction, abduction, rape, or other lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;
(7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;
(9) Acts mentioned in article 309;
 (10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34
and 35.

The parents of the female seduced, abducted, raped, or abused, referred to

in No. 3 of this article, may also recover moral damages.

The spouse, descendants, ascendants, and brothers and sisters may bring
the action mentioned in No. 9 of this article in the order named.

Thus, the law does not intend that moral damages should be awarded in all cases
where the aggrieved party has suffered mental anguish, fright, moral anxieties,
besmirched reputation, wounded feelings, moral shock, social humiliation and
similar injury arising out of an act or omission of another, otherwise, there would
not have been any reason for the inclusion of specific acts in Article 2219 [67] and
analogous cases (which refer to those cases bearing analogy or resemblance,
corresponds to some others or resembling, in other respects, as in form, proportion,
relation, etc.)[68]

Indeed, bigamy is not one of those specifically mentioned in Article 2219 of

the Civil Code in which the offender may be ordered to pay moral damages to the
private complainant/offended party. Nevertheless, the petitioner is liable to the
private complainant for moral damages under Article 2219 in relation to Articles
19, 20 and 21 of the Civil Code.

According to Article 19, every person must, in the exercise of his rights and
in the performance of his act with justice, give everyone his due, and observe
honesty and good faith. This provision contains what is commonly referred to as
the principle of abuse of rights, and sets certain standards which must be observed
not only in the exercise of ones rights but also in the performance of ones duties.
The standards are the following: act with justice; give everyone his due; and
observe honesty and good faith. The elements for abuse of rights are: (a) there is a
legal right or duty; (b) exercised in bad faith; and (c) for the sole intent of
prejudicing or injuring another.[69]
 Article 20 speaks of the general sanctions of all other provisions of law
which do not especially provide for its own sanction. When a right is exercised in a
manner which does not conform to the standards set forth in the said provision and
results in damage to another, a legal wrong is thereby committed for which the
wrongdoer must be responsible.[70] If the provision does not provide a remedy for
its violation, an action for damages under either Article 20 or Article 21 of the
Civil Code would be proper. Article 20 provides that every person who, contrary to
law, willfully or negligently causes damage to another shall indemnify the latter for
the same. On the other hand, Article 21 provides that any person who willfully
causes loss or injury to another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for damages. The latter
provision
is adopted to remedy the countless gaps in the statutes which leave so many
victims of moral wrongs helpless, even though they have actually suffered material
and moral injury should vouchsafe adequate legal remedy for that untold number
of moral wrongs which it is impossible for human foresight to prove for
specifically in the statutes. Whether or not the principle of abuse of rights has been
violated resulting in damages under Article 20 or Article 21 of the Civil Code or
other applicable provisions of law depends upon the circumstances of each case.[71]

In the present case, the petitioner courted the private complainant and proposed to
marry her. He assured her that he was single. He even brought his parents to the
house of the private complainant where he and his parents made the same
assurance that he was single. Thus, the private complainant agreed to marry the
petitioner, who even stated in the certificate of marriage that he was single. She
lived with the petitioner and dutifully performed her duties as his wife, believing
all the while that he was her lawful husband. For two years or so until the
petitioner heartlessly abandoned her, the private complainant had no inkling that he
was already married to another before they were married.

Thus, the private complainant was an innocent victim of the petitioners

chicanery and heartless deception, the fraud consisting not of a single act alone, but
a continuous series of acts. Day by day, he maintained the appearance of being a
lawful husband to the private complainant, who
changed her status from a single woman to a married woman, lost the consortium,
attributes and support of a single man she could have married lawfully and endured
mental pain and humiliation, being bound to a man who it turned out was not her
lawful husband.[72]

The Court rules that the petitioners collective acts of fraud and deceit before,
during and after his marriage with the private complainant were willful, deliberate
and with malice and caused injury to the latter. That she did not sustain any
physical injuries is not a bar to an award for moral damages. Indeed, in Morris v.
Macnab,[73] the New Jersey Supreme Court ruled:

xxx The defendant cites authorities which indicate that, absent physical
injuries, damages for shame, humiliation, and mental anguish are not recoverable
where the actor is simply negligent. See Prosser, supra, at p. 180; 2 Harper &
James, Torts, 1031 (1956). But the authorities all recognize that where the wrong
is willful rather than negligent, recovery may be had for the ordinary, natural, and
proximate consequences though they consist of shame, humiliation, and mental
anguish. See Spiegel v. Evergreen Cemetery Co., 117 NJL 90, 94, 186 A 585
(Sup. Ct. 1936); Kuzma v. Millinery Workers, etc., Local 24, 27 N.J. Super, 579,
591, 99 A.2d 833 (App. Div. 1953); Prosser, supra, at p. 38. Here the defendants
conduct was not merely negligent, but was willfully and maliciously wrongful. It
was bound to result in shame, humiliation, and mental anguish for the plaintiff,
and when such result did ensue the plaintiff became entitled not only to
compensatory but also to punitive damages. See Spiegel v. Evergreen Cemetery
Co., supra; Kuzma v Millinery Workers, etc., Local 24, supra. CF. Note,
Exemplary Damages in the Law of Torts, 70 Harv. L. Rev. 517 (1957). The
plaintiff testified that because of the defendants bigamous marriage to her and the
attendant publicity she not only was embarrassed and ashamed to go out but
couldnt sleep but couldnt eat, had terrific headaches and lost quite a lot of weight.
No just basis appears for judicial interference with the jurys reasonable allowance
of $1,000 punitive damages on the first count. See Cabakov v. Thatcher, 37 N.J.
Super 249, 117 A.2d 298 (App. Div.[74] 1955).

The Court thus declares that the petitioners acts are against public policy as they
undermine and subvert the family as a social institution, good morals and the
interest and general welfare of society.
 Because the private complainant was an innocent victim of the petitioners
perfidy, she is not barred from claiming moral damages. Besides, even
considerations of public policy would not prevent her from recovery. As held
in Jekshewitz v. Groswald:[75]

Where a person is induced by the fraudulent representation of another to do an act

which, in consequence of such misrepresentation, he believes to be neither illegal
nor immoral, but which is in fact a criminal offense, he has a right of action
against the person so inducing him for damages sustained by him in consequence
of his having done such act. Burrows v. Rhodes, [1899] 1 Q.B. 816. In Cooper v.
Cooper, 147 Mass. 370, 17 N.E. 892, 9 Am. St. Rep. 721, the court said that a
false representation by the defendant that he was divorced from his former wife,
whereby the plaintiff was induced to marry him, gave her a remedy in tort for
deceit. It seems to have been assumed that the fact that she had unintentionally
violated the law or innocently committed a crime by cohabiting with him would
be no bar to the action, but rather that it might be a ground for enhancing her
damages. The injury to the plaintiff was said to be in her being led by the promise
to give the fellowship and assistance of a wife to one who was not her husband
and to assume and act in a relation and condition that proved to be false and
ignominious. Damages for such an injury were held to be recoverable in Sherman
v. Rawson, 102 Mass. 395 and Kelley v. Riley, 106 Mass. 339, 343, 8 Am. Rep.
336.

Furthermore, in the case at bar the plaintiff does not base her cause of action upon
any transgression of the law by herself but upon the defendants misrepresentation.
The criminal relations which followed, innocently on her part, were but one of the
incidental results of the defendants fraud for which damages may be assessed.

[7] Actions for deceit for fraudulently inducing a woman to enter into the
marriage relation have been maintained in other jurisdictions. Sears v. Wegner,
150 Mich. 388, 114 N.W. 224, 17 L.R. A. (N.S.) 819; Larson v. McMillan, 99
Wash. 626, 170 P. 324; Blossom v. Barrett, 37 N.Y. 434, 97 Am. Dec. 747; Morril
v. Palmer, 68 Vt. 1, 33 A. 829, 33 L.R.A. 411. Considerations of public policy
would not prevent recovery where the circumstances are such that the plaintiff
was conscious of no moral turpitude, that her illegal action was induced solely by
the defendants misrepresentation, and that she does not base her cause of action
upon any transgression of the law by herself. Such considerations
distinguish this case from cases in which the court has refused to lend its aid to
the enforcement of a contract illegal on its face or to one who has consciously and
voluntarily become a party to an illegal act upon which the cause of action is
founded. Szadiwicz v. Cantor, 257 Mass. 518, 520, 154 N.E. 251, 49 A. L. R. 958.
[76]
Considering the attendant circumstances of the case, the Court finds the award
of P200,000.00 for moral damages to be just and reasonable.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The

assailed decision of the Court of Appeals is AFFIRMED. Costs against the
petitioner.

SO ORDERED

Santos vs. Santos

G.R. No. 187061, October 8, 2014

Statement of the Case:

In his petition for certiorari, petitioner Celerina J. Santos assails the Court of Appeals'
resolutions dated November 28, 2008 and March 5, 2009. Celerina filed a petition for
annulment of judgment before the Court of Appeals on the grounds of extrinsic fraud
and lack of jurisdiction. The Court of Appeals dismissed the petition for the annulment
of the trial court's judgment declaring her presumptively dead.

Facts of the Case:

On July 27, 2007, the Regional Trial Court of Tarlac City declared petitioner Celerina J.
Santos (Celerina) presumptively dead after her husband, respondent Ricardo T. Santos
(Ricardo), had filed a petition for declaration of absence or presumptive death for the
purpose of remarriage on June 15, 2007. Ricardo remarried on September 17, 2008.

Ricardo alleged that he exerted efforts to locate Celerina. He went to Celerina's parents
in Cubao, Quezon City, but they did not know their daughter's whereabouts. He also
inquired about her from other relatives and friends, but no one gave him any
information. Ricardo claimed that it was almost 12 years from the date of his Regional
Trial Court petition since Celerina left. He believed that she had passed away.

Celerina claimed that she learned about Ricardo's petition only sometime in October
2008 when she could no longer avail the remedies of new trial, appeal, petition for relief,
or other appropriate remedies.

On November 17, 2008, Celerina filed a petition for annulment of judgment before the
Court of Appeals on the grounds of extrinsic fraud and lack of jurisdiction. She argued
that she was deprived her day in court when Ricardo, despite his knowledge of her true
residence, misrepresented to the court that she was a resident of Tarlac City. According
to Celerina, her true residence was in Neptune Extension, Congressional Avenue,
Quezon City. This residence had been her and Ricardo's conjugal dwelling since 1989
until Ricardo left in May 2008. As a result of Ricardo's misrepresentation, she was
deprived of any notice of and opportunity to oppose the petition declaring her
presumptively dead.

Celerina claimed that all the allegations of Ricardo were fraudulent, that she never
resided in Tarlac and never left to work as a domestic helper abroad. Further, she also
claimed that it was not true that she had been absent for 12 years. Ricardo was aware
that she never left their conjugal dwelling in Quezon City. It was he who left the conjugal
dwelling in May 2008 to cohabit with another woman. Celerina referred to a joint
affidavit executed by their children to support her contention that Ricardo made false
allegations in his petition. Celerina also argued that the court did not acquire jurisdiction
over Ricardo's petition because it had never been published in a newspaper. She added
that the Office of the Solicitor General and the Provincial Prosecutor's Office were not
furnished copies of Ricardo's petition.

The Court of Appeals issued the resolution dated November 28, 2008, dismissing
Celerina's petition for annulment of judgment for being a wrong mode of remedy.
According to the Court of Appeals, the proper remedy was to file a sworn statement
before the civil registry, declaring her reappearance in accordance with Article 42 of the
Family Code.

Celerina filed a motion for reconsideration but the same was denied.
Issue:

Whether or not Court of Appelas erred in dismissing Celerinas petition on the ground
that the proper remedy is to file a sworn statement before the civil registry declaring her
reappearance as stated in Article 42 of the Family Code

Ruling:

Yes. Annulment of judgment is the remedy when the Regional Trial Court's judgment,
order, or resolution has become final, and the remedies of new trial, appeal, petition for
relief or other appropriate remedies are no longer available through no fault of the
petitioner. The grounds for annulment of judgment are extrinsic fraud and lack of
jurisdiction.

This court defined extrinsic fraud in Stilianopulos v. City of Legaspi. For fraud to become
a basis for annulment of judgment, it has to be extrinsic or actual. It is intrinsic when the
fraudulent acts pertain to an issue involved in the original action or where the acts
constituting the fraud were or could have been litigated, It is extrinsic or collateral when
a litigant commits acts outside of the trial which prevents a party from having a real
contest, or from presenting all of his case, such that there is no fair submission of the
controversy.

The choice of remedy is important because remedies carry with them certain
admissions, presumptions, and conditions.

The Family Code provides that it is the proof of absence of a spouse for four
consecutive years, coupled with a well-founded belief by the present spouse that the
absent spouse is already dead, that constitutes a justification for a second marriage
during the subsistence of another marriage. The Family Code also provides that the
second marriage is in danger of being terminated by the presumptively dead spouse
when he or she reappears. Moreover, a close reading of the entire Article 42 reveals
that the termination of the subsequent marriage by reappearance is subject to several
conditions: (1) the non-existence of a judgment annulling the previous marriage or
declaring it void ab initio; (2) recording in the civil registry of the residence of the parties
to the subsequent marriage of the sworn statement of fact and circumstances of
reappearance; (3) due notice to the spouses of the subsequent marriage of the fact of
reappearance; and (4) the fact of reappearance must either be undisputed or judicially
determined. The existence of these conditions means that reappearance does not
always immediately cause the subsequent marriage's termination. Reappearance of
the absent or presumptively dead spouse will cause the termination of the subsequent
marriage only when all the conditions enumerated in the Family Code are present.
Hence, the subsequent marriage may still subsist despite the absent or presumptively
dead spouse's reappearance (1) if the first marriage has already been annulled or has
been declared a nullity; (2) if the sworn statement of the reappearance is not recorded
in the civil registry of the subsequent spouses' residence; (3) if there is no notice to the
subsequent spouses; or (4) if the fact of reappearance is disputed in the proper courts
of law, and no judgment is yet rendered confirming, such fact of reappearance.

When subsequent marriages are contracted after a judicial declaration of presumptive

death, a presumption arises that the first spouse is already dead and that the second
marriage is legal. This presumption should prevail over the continuance of the marital
relations with the first spouse. The second marriage, as with all marriages, is presumed
valid. The burden of proof to show that the first marriage was not properly dissolved
rests on the person assailing the validity of the second marriage.

The choice of the proper remedy is also important for purposes of determining the
status of the second marriage and the liabilities of the spouse who, in bad faith, claimed
that the other spouse was absent.

A second marriage is bigamous while the first subsists. However, a bigamous

subsequent marriage may be considered valid when the following are present: (1) The
prior spouse had been absent for four consecutive years; (2) The spouse present has a
well-founded belief that the absent spouse was already dead; (3) There must be a
summary proceeding for the declaration of presumptive death of the absent spouse;
and (4) There is a court declaration of presumptive death of the absent spouse.
A subsequent marriage contracted in bad faith, even if it was contracted after a court
declaration of presumptive death, lacks the requirement of a well-founded belief that the
spouse is already dead. The first marriage will not be considered as validly terminated.
Marriages contracted prior to the valid termination of a subsisting marriage are generally
considered bigamous and void. Only a subsequent marriage contracted in good faith is
protected by law. Therefore, the party who contracted the subsequent marriage in bad
faith is also not immune from an action to declare his subsequent marriage void for
being bigamous. The prohibition against marriage during the subsistence of another
marriage still applies.

The provision on reappearance in the Family Code as a remedy to effect the termination
of the subsequent marriage does not preclude the spouse who was declared
presumptively dead from availing other remedies existing in law. This court had, in fact,
recognized that a subsequent marriage may also be terminated by filing "an action in
court to prove the reappearance of the absentee and obtain a declaration of dissolution
or termination of the subsequent marriage.

Celerina seeks not merely the termination of the subsequent marriage but also the
nullification of its effects. She contends that reappearance is not a sufficient remedy
because it will only terminate the subsequent marriage but not nullify the effects of the
declaration of her presumptive death and the subsequent marriage.

Celerina is correct. Since an undisturbed subsequent marriage under Article 42 of the

Family Code is valid until terminated, the "children of such marriage shall be considered
legitimate, and the property relations of the spouses in such marriage will be the same
as in valid marriages. If it is terminated by mere reappearance, the children of the
subsequent marriage conceived before the termination shall still be considered
legitimate. Moreover, a judgment declaring presumptive death is a defense against
prosecution for bigamy.

However, "a Petition for Declaration of Absolute Nullity of Void Marriages may be filed
solely by the husband or wife." This means that even if Celerina is a real party in
interest who stands to be benefited or injured by the outcome of an action to nullify the
second marriage, this remedy is not available to her.

Therefore, for the purpose of not only terminating the subsequent marriage but also of
nullifying the effects of the declaration of presumptive death and the subsequent
marriage, mere filing of an affidavit of reappearance would not suffice. Celerina's choice
to file an action for annulment of judgment will, therefore, lie.

Disposition:

The case is remanded to the Court of Appeals for determination of the existence of
extrinsic fraud, grounds for nullity or annulment of the first marriage, and the merits of
the petition.
 SECOND DIVISION

G.R. No. 210929, July 29, 2015

REPUBLIC OF THE PHILIPPINES, Petitioner, v. EDNA ORCELINO-VILLANUEVA, Respondent.

DECISION

MENDOZA, J.:

In this petition for review on certiorari under Rule 45 of the Rules of Court, the Office of the Solicitor General
(OSG), on behalf of the Republic of the Philippines, assails the October 18, 2013 Decision 1and the January 8,
2014 Resolution2 of the Court of Appeals (CA), in CA-G.R. S.P. No. 03768-MIN, which affirmed the October
8, 2009 Judgment3 of the Regional Trial Court, Branch 10, Malaybalay City, Bukidnon (RTC), in SP Proc. Case
No. 3316-09, granting the petition of respondent Edna Orcelino-Villanueva (Edna) and declaring her
husband, Romeo L. Villanueva (Romeo), as presumptively dead under Article 41 of the Family Code. 4 chanroble slaw

The Antecedents

Edna and Romeo were married on December 21, 1978, in Iligan City.

In 1992, Edna worked as domestic helper in Singapore while her husband worked as a mechanic in Valencia
City, Bukidnon. In 1993, Edna heard the news from her children that Romeo had left their conjugal home
without reason or information as to his whereabouts.

Thereafter, Edna took a leave from work and returned to the country to look for Romeo. She inquired from
her parents-in-law and common friends in Iligan City. Still, she found no leads as to his whereabouts or
existence. She also went to his birthplace in Escalante, Negros Oriental, and inquired from his relatives.

On August 6, 2009, Edna filed before the RTC a petition5 to declare Romeo presumptively dead under Article
41 of the Family Code.

During the trial, Edna was presented as the lone witness. In its October 8, 2009 Order,6 the RTC granted the
petition on the basis of her well-founded belief of Romeo's death. Hence: chanRoble svirtualLawlibrary

WHEREFORE, premises considered, judgment is hereby rendered declaring Romeo L. Villanueva to be

presumptively dead for all legal intents and purposes in accordance with Article 41 of the Family Code of the
Philippines, without prejudice to his reappearance.

SO ORDERED.7
On August 13, 2010, the OSG filed a petition for certiorari under Rule 65 of the Rules of Court before the CA
alleging grave abuse of discretion on the part of the RTC in finding that Edna had a well-founded belief that
Romeo, her absent spouse, was dead. It argued that the conclusions reached by the RTC were in direct
opposition to established jurisprudence, as ruled by the Court in Republic v. Nolasco8 (Nolasco) and U.S. v.
Biasbas9 On October 18, 2013, the CA dismissed the petition, holding that the RTC acted within its
jurisdiction in issuing the assailed decision having been expressly clothed with the power to determine the
case.10 It also cited Article 247 of the Family Code 11 which provided for the final and immediate executory
character of the decision of the RTC, acting as a family court, thus, rendering the issue of whether or not
Edna had sufficiently established a well-founded belief to warrant the decree of presumptive death of her
absent spouse, as moot and academic.

On November 20, 2013, the OSG filed a motion for reconsideration but the CA denied it on January 8, 2014.

Hence, this petition.

ISSUES

I.

WHETHER OR NOT THE CA ERRED IN AFFIRMING THE RTC DECISION DESPITE THE FACT THAT
THE CONCLUSION REACHED BY THE RTC IS CONTRARY TO PREVAILING JURISPRUDENCE.

II.

WHETHER OR NOT THE CA ERRED IN RULING THAT THE GROUNDS RAISED BY THE PETITIONER
TO ASSAIL THE RTC DECISION ARE MERE ERRORS OF JUDGMENT. 12
The OSG argues that the CA erred in not finding grave abuse of discretion on the part of the RTC when the
latter affirmed the existence of Edna's well-founded belief as to the death of her absent spouse. It claims
that the evidence presented by Edna, which merely consisted of bare and uncorroborated assertions, never
amounted to a diligent and serious search required under prevailing jurisprudence.

Respondent Edna, through her counsel, invokes the finality, inalterability and immutability of the RTC
decision, which was affirmed by the CA.13 chanroble slaw

Ruling of the Court

The Court grants the petition.

Article 41 of the Family Code provides that before a judicial declaration of presumptive death may be
granted, the present spouse must prove that he/she has a well-founded belief that the absentee is
dead.14 In this case, Edna failed. The RTC and the CA overlooked Edna's patent non-compliance with the said
requirement. The well-founded belief in the absentee's death requires the present spouse to prove that
his/her belief was the result of diligent and reasonable efforts to locate the absent spouse and that based on
these efforts and inquiries, he/she believes that under the circumstances, the absent spouse is already
dead. It necessitates exertion of active effort (not a mere passive one). Mere absence of the spouse (even
beyond the period required by law), lack of any news that the absentee spouse is still alive, mere failure to
communicate, or general presumption of absence under the Civil Code would not suffice. 15 The premise is
that Article 41 of the Family Code places upon the present spouse the burden of complying with the
stringent requirement of well-founded belief which can only be discharged upon a showing of proper and
honest-to-goodness inquiries and efforts to ascertain not only the absent spouse's whereabouts but, more
importantly, whether the absent spouse is still alive or is already dead. 16 chanrobleslaw

This strict standard approach ensures that a petition for declaration of presumptive death under Article 41 of
the Family Code is not used as a tool to conveniently circumvent the laws in light of the State's policy to
protect and strengthen the institution of marriage. Courts should never allow procedural shortcuts but
instead should see to it that the stricter standard required by the Family Code is met. 17 chanroble slaw

Accordingly, in a string of cases, this Court has denied petitions for the declaration of presumptive death on
the said basis.
In Republic of the Philippines v. Court of Appeals,18 the Court ruled that the present spouse failed to prove
that he had a well-founded belief that his absent spouse was already dead before he filed his petition. His
efforts to locate his absent wife allegedly consisted of the following: chanRoble svirtualLawlibrary

(1) He went to his in-laws' house to look for her;

(2) He sought the barangay captain's aid to locate her;
(3) He went to her friends' houses to find her and inquired about her
whereabouts among her friends;
(4) He went to Manila and worked as a part-time taxi driver to look for her in
malls during his free time;
(5) He went back to Catbalogan and again looked for her; and
(6) He reported her disappearance to the local police station and to the NBI.
Despite these claimed "earnest efforts," the Court still ruled against the present spouse. The Court explained
that he failed to present the persons from whom he made inquiries and only reported his wife's absence
after the OSG filed its notice to dismiss his petition in the RTC.

Similarly in Republic v. Granada,19 the Court ruled that the present spouse failed to prove her "well-founded
belief" that her absent spouse was already dead prior to her filing of the petition. She simply did not exert
diligent efforts to locate her husband either in the country or in Taiwan, where he was known to have
worked. Moreover, she did not explain her omissions. In said case, the Court wrote: chanRoblesvirtualLa wlibrary

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

In Nolasco, the present spouse filed a petition for declaration of presumptive death of his wife, who had
been missing for more than four years. He testified that his efforts to find her consisted of: chanRoble svirtualLawlibrary

(1) Searching for her whenever his ship docked in England;

(2) Sending her letters which were all returned to him; and
(3) Inquiring from their friends regarding her whereabouts, which all proved
fruitless.
The Court held that the present spouse's methods of investigation were too sketchy to form a basis that his
wife was already dead. It stated that the pieces of evidence only proved that his wife had chosen not to
communicate with their common acquaintances, and not that she was dead.

Recently, in Republic v. Cantor20 (Cantor), the Court considered the present spouse's efforts to have fallen
short of the "stringent standard" and lacked the degree of diligence required by jurisprudence as she did not
actively look for her missing husband; that she did not report his absence to the police or seek the aid of the
authorities to look for him; that she did not present as witnesses her missing husband's relatives or their
neighbors and friends, who could corroborate her efforts to locate him; that these persons, from whom she
allegedly made inquiries, were not even named; and that there was no other corroborative evidence to
support her claim that she conducted a diligent search. In the Court's view, the wife merely engaged in a
"passive search" where she relied on uncorroborated inquiries from her in-laws, neighbors and friends. She,
thus, failed to conduct a diligent search. Her claimed efforts were insufficient to form a well-founded belief
that her husband was already dead.

In this case, Edna claimed to have done the following to determine the whereabouts and the status of her
husband: chanRoble svirtualLawlibrary

1. She took a vacation/leave of absence from her work and returned to the Philippines to look
for her husband.

2. She inquired from her parents-in-law in Iligan City and from their common friends in the
same city and in Valencia City.
 3. She went as far as the birthplace of her husband in Escalante, Negros Oriental, so she could
inquire from her husband's relatives.

Despite her efforts, she averred that she received negative responses from them because none of them had
knowledge of the existence of her husband who had been missing for 15 years.

Applying the standard set forth by the Court in the previously cited cases, particularly Cantor, Edna's efforts
failed to satisfy the required well-founded belief of her absent husband's death.

Her claim of making diligent search and inquiries remained unfounded as it merely consisted of bare
assertions without any corroborative evidence on record. She also failed to present any person from whom
she inquired about the whereabouts of her husband. She did not even present her children from whom she
learned the disappearance of her husband. In fact, she was the lone witness. Following the basic rule that
mere allegation is not evidence and is not equivalent to proof,21 the Court cannot give credence to her claims
that she indeed exerted diligent efforts to locate her husband.

Moreover, no document was submitted to corroborate the allegation that her husband had been missing for
at least fifteen (15) years already. As the OSG observed, there was not even any attempt to seek the aid of
the authorities at the time her husband disappeared. In Cantor, the present spouse claimed to have sought
the aid of the authorities or, at the very least, reported his absence to the police. 22 Yet, the Court denied her
pleas.

Verily, it makes sense to conclude that her efforts were not diligent and serious enough to give meaning to
her well-founded belief that Romeo was already dead. Suffice it to state that her petition should have been
denied at the first instance. The RTC, however, granted it, reasoning
xxx that it was in 1993 when the petitioner while abroad heard the news from her children that her husband
left their conjugal home xxx without informing the children nor communicating with the herein petitioner as
to the reasons why he left their family abode nor giving them any information as to his whereabouts; that
herein petitioner took vacation/leave of absence from her work and return to the Philippines, in order to look
for her husband and made some inquiries with her parents-in-law in Iligan City, from their common friends
in Iligan City and in Valencia City, and even went as far as the birthplace of her husband, particularly at
Escalante, Negros Oriental, inquiring from her husband's relatives, but she only got negative response from
them since none of them have any knowledge as to the present existence of her husband that since the year
1993 up to the present, a period of about fifteen [15] years have elapsed, the person and the body of
petitioner's husband could not be found, located nor traced as there is no any information as to his existence
or whereabouts.23
Worse, the CA affirmed the RTC decision when it dismissed the petition for certiorari filed by the OSG. The
CA should have realized the glaring and patent disregard by the RTC of the rulings in similar situations
where petitions for declaration of presumptive death have been denied by this Court. By declaring Romeo
presumptively dead, the CA clearly ignored this Court's categorical pronouncements.

WHEREFORE, the petition is GRANTED. Accordingly, the October 18, 2013 Decision and the January 8,
2014 Resolution of the Court of Appeals are hereby REVERSED and SET ASIDE. The petition of respondent
Edna Orcelino-Villanueva to have her husband declared presumptively dead is DENIED.

SO ORDERED.
Republic of the Philippines VS. Bermudez
Lorino, G.R. No. 160258
Posted: October 4, 2011 in Case Digests
Tags: Presumptive Death

Republic of the Philippines VS. Bermudez Lorino

G.R. No. 160258. January 19, 2005

FACTS: Gloria Bermudez and Francisco Lorino were married in June 1987. The wife was unaware that

her husband was a habitual drinker with violent attitude and character and had the propensity to go

out with his friends to the point of being unable to work. In 1991 she left him and returned to her

parents together with her three children. She went abroad to work for her support her children. From

the time she left him, she had no communication with him or his relatives.

In 2000, nine years after leaving her husband, Gloria filed a verified petition with the RTC under the

rules on Summary Judicial Proceedings in the Family Law. The lower court issued an order for the

publication of the petition in a newspaper of general circulation.

In November 7, 2001, the RTC granted the summary petition. Although the judgment was final and

executors under the provisions of Act. 247 of the Family Code, the OSG for the Republic of the

Philippines filed a notice of appeal.

ISSUE: Whether or not the factual and legal bases for a judicial declaration of presumptive death

under Art 41 of the Family Code were duly established.

HELD: Art. 238 of the Family Code under Title XI Summary Judicial Proceeding in the Family Law, sets

the tenor for cases scoured by these rules, to wit:

Art238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all cases

provided for in this Code requiring summary court proceeding. Such cases shall be decided in an

expeditions manner with out regards technical rules.

The judge of the RTC fully complied with the above-cited provision by expeditiously rending judgment

within ninety (90) days after the formal offer of evidence by the petitioner.