THIRD DIVISION

[G.R. No. 138322. October 2, 2001]

GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner, vs. REDERICK A. RECIO,

respondent.

DECISION

PANGANIBAN, J.:

A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such
decree is valid according to the national law of the foreigner. However, the divorce decree and
the governing personal law of the alien spouse who obtained the divorce must be proven. Our
courts do not take judicial notice of foreign laws and judgments; hence, like any other facts, both
the divorce decree and the national law of the alien must be alleged and proven according to our
law on evidence.

The Case

Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to nullify the
January 7, 1999 Decision and the March 24, 1999 Order of the Regional Trial Court of
Cabanatuan City, Branch 28, in Civil Case No. 3026AF. The assailed Decision disposed as
follows:

WHEREFORE, this Court declares the marriage between Grace J. Garcia and Rederick A.
Recio solemnized on January 12, 1994 at Cabanatuan City as dissolved and both parties can now
remarry under existing and applicable laws to any and/or both parties.

The assailed Order denied reconsideration of the above-quoted Decision.

The Facts

Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in Malabon,
Rizal, on March 1, 1987. They lived together as husband and wife in Australia. On May 18,
1989, a decree of divorce, purportedly dissolving the marriage, was issued by an Australian
family court.

On June 26, 1992, respondent became an Australian citizen, as shown by a Certificate of

Australian Citizenship issued by the Australian government. Petitioner -- a Filipina -- and
respondent were married on January 12, 1994 in Our Lady of Perpetual Help Church in
Cabanatuan City. In their application for a marriage license, respondent was declared as single
and Filipino.
Starting October 22, 1995, petitioner and respondent lived separately without prior judicial
dissolution of their marriage. While the two were still in Australia, their conjugal assets were
divided on May 16, 1996, in accordance with their Statutory Declarations secured in Australia.

On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage in the
court a quo, on the ground of bigamy -- respondent allegedly had a prior subsisting marriage at
the time he married her on January 12, 1994. She claimed that she learned of respondents
marriage to Editha Samson only in November, 1997.

In his Answer, respondent averred that, as far back as 1993, he had revealed to petitioner his
prior marriage and its subsequent dissolution. He contended that his first marriage to an
Australian citizen had been validly dissolved by a divorce decree obtained in Australia in 1989;
thus, he was legally capacitated to marry petitioner in 1994.

On July 7, 1998 -- or about five years after the couples wedding and while the suit for the
declaration of nullity was pending -- respondent was able to secure a divorce decree from a
family court in Sydney, Australia because the marriage ha[d] irretrievably broken down.

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

Thereafter, the trial court rendered the assailed Decision and Order.

Ruling of the Trial Court

The trial court declared the marriage dissolved on the ground that the divorce issued in Australia
was valid and recognized in the Philippines. It deemed the marriage ended, but not on the basis
of any defect in an essential element of the marriage; that is, respondents alleged lack of legal
capacity to remarry. Rather, it based its Decision on the divorce decree obtained by respondent.
The Australian divorce had ended the marriage; thus, there was no more marital union to nullify
or annul.

Hence, this Petition.

Issues

Petitioner submits the following issues for our consideration:

The trial court gravely erred in finding that the divorce decree obtained in Australia by the
respondent ipso facto terminated his first marriage to Editha Samson thereby capacitating him to
contract a second marriage with the petitioner.
2

The failure of the respondent, who is now a naturalized Australian, to present a certificate of
legal capacity to marry constitutes absence of a substantial requisite voiding the petitioners
marriage to the respondent

The trial court seriously erred in the application of Art. 26 of the Family Code in this case.

The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40, 52 and 53 of
the Family Code as the applicable provisions in this case.

The trial court gravely erred in pronouncing that the divorce decree obtained by the respondent
in Australia ipso facto capacitated the parties to remarry, without first securing a recognition of
the judgment granting the divorce decree before our courts.

The Petition raises five issues, but for purposes of this Decision, we shall concentrate on two
pivotal ones: (1) whether the divorce between respondent and Editha Samson was proven, and
(2) whether respondent was proven to be legally capacitated to marry petitioner. Because of our
ruling on these two, there is no more necessity to take up the rest.

The Courts Ruling

The Petition is partly meritorious.

First Issue:
Proving the Divorce Between Respondent and Editha Samson

Petitioner assails the trial courts recognition of the divorce between respondent and Editha
Samson. Citing Adong v. Cheong Seng Gee, petitioner argues that the divorce decree, like any
other foreign judgment, may be given recognition in this jurisdiction only upon proof of the
existence of (1) the foreign law allowing absolute divorce and (2) the alleged divorce decree
itself. She adds that respondent miserably failed to establish these elements.

Petitioner adds that, based on the first paragraph of Article 26 of the Family Code, marriages
solemnized abroad are governed by the law of the place where they were celebrated (the lex loci
celebrationis). In effect, the Code requires the presentation of the foreign law to show the
conformity of the marriage in question to the legal requirements of the place where the marriage
was performed.
At the outset, we lay the following basic legal principles as the take-off points for our
discussion. Philippine law does not provide for absolute divorce; hence, our courts cannot grant
it. A marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad,
because of Articles 15 and 17 of the Civil Code. In mixed marriages involving a Filipino and a
foreigner, Article 26 of the Family Code allows the former to contract a subsequent marriage in
case the divorce is validly obtained abroad by the alien spouse capacitating him or her to
remarry. A divorce obtained abroad by a couple, who are both aliens, may be recognized in the
Philippines, provided it is consistent with their respective national laws.

A comparison between marriage and divorce, as far as pleading and proof are concerned, can be
made. Van Dorn v. Romillo Jr. decrees that aliens may obtain divorces abroad, which may be
recognized in the Philippines, provided they are valid according to their national law. Therefore,
before a foreign divorce decree can be recognized by our courts, the party pleading it must prove
the divorce as a fact and demonstrate its conformity to the foreign law allowing it. Presentation
solely of the divorce decree is insufficient.

Divorce as a Question of Fact

Petitioner insists that before a divorce decree can be admitted in evidence, it must first comply
with the registration requirements under Articles 11, 13 and 52 of the Family Code. These
articles read as follows:

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

xxx xxx xxx

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

xxx xxx x x x

ART. 13. In case either of the contracting parties has been previously married, the applicant
shall be required to

ART. 13. In case either of the contracting parties has been previously married, the applicant
shall be required to furnish, instead of the birth or baptismal certificate required in the last
preceding article, the death certificate of the deceased spouse or the judicial decree of the
absolute divorce, or the judicial decree of annulment or declaration of nullity of his or her
previous marriage. x x x.

ART. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and
distribution of the properties of the spouses, and the delivery of the childrens presumptive
legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise,
the same shall not affect their persons.
Respondent, on the other hand, argues that the Australian divorce decree is a public document --
a written official act of an Australian family court. Therefore, it requires no further proof of its
authenticity and due execution.

Respondent is getting ahead of himself. Before a foreign judgment is given presumptive

evidentiary value, the document must first be presented and admitted in evidence. A divorce
obtained abroad is proven by the divorce decree itself. Indeed the best evidence of a judgment is
the judgment itself. The decree purports to be a written act or record of an act of an official body
or tribunal of a foreign country.

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

The divorce decree between respondent and Editha Samson appears to be an authentic one issued
by an Australian family court. However, appearance is not sufficient; compliance with the
aforementioned rules on evidence must be demonstrated.

Fortunately for respondents cause, when the divorce decree of May 18, 1989 was submitted in
evidence, counsel for petitioner objected, not to its admissibility, but only to the fact that it had
not been registered in the Local Civil Registry of Cabanatuan City. The trial court ruled that it
was admissible, subject to petitioners qualification. Hence, it was admitted in evidence and
accorded weight by the judge. Indeed, petitioners failure to object properly rendered the divorce
decree admissible as a written act of the Family Court of Sydney, Australia.

Compliance with the quoted articles (11, 13 and 52) of the Family Code is not necessary;
respondent was no longer bound by Philippine personal laws after he acquired Australian
citizenship in 1992. Naturalization is the legal act of adopting an alien and clothing him with the
political and civil rights belonging to a citizen. Naturalized citizens, freed from the protective
cloak of their former states, don the attires of their adoptive countries. By becoming an
Australian, respondent severed his allegiance to the Philippines and the vinculum juris that had
tied him to Philippine personal laws.

Burden of Proving Australian Law

Respondent contends that the burden to prove Australian divorce law falls upon petitioner,
because she is the party challenging the validity of a foreign judgment. He contends that
petitioner was satisfied with the original of the divorce decree and was cognizant of the marital
laws of Australia, because she had lived and worked in that country for quite a long time.
Besides, the Australian divorce law is allegedly known by Philippine courts; thus, judges may
take judicial notice of foreign laws in the exercise of sound discretion.
We are not persuaded. The burden of proof lies with the party who alleges the existence of a
fact or thing necessary in the prosecution or defense of an action. In civil cases, plaintiffs have
the burden of proving the material allegations of the complaint when those are denied by the
answer; and defendants have the burden of proving the material allegations in their answer when
they introduce new matters. Since the divorce was a defense raised by respondent, the burden of
proving the pertinent Australian law validating it falls squarely upon him.

It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws.
Like any other facts, they must be alleged and proved. Australian marital laws are not among
those matters that judges are supposed to know by reason of their judicial function. The power of
judicial notice must be exercised with caution, and every reasonable doubt upon the subject
should be resolved in the negative.

Second Issue: Respondents Legal Capacity to Remarry

Petitioner contends that, in view of the insufficient proof of the divorce, respondent was legally
incapacitated to marry her in 1994. Hence, she concludes that their marriage was void ab initio.

Respondent replies that the Australian divorce decree, which was validly admitted in evidence,
adequately established his legal capacity to marry under Australian law.

Respondents contention is untenable. In its strict legal sense, divorce means the legal
dissolution of a lawful union for a cause arising after marriage. But divorces are of different
types. The two basic ones are (1) absolute divorce or a vinculo matrimonii and (2) limited
divorce or a mensa et thoro. The first kind terminates the marriage, while the second suspends it
and leaves the bond in full force. There is no showing in the case at bar which type of divorce
was procured by respondent.

Respondent presented a decree nisi or an interlocutory decree -- a conditional or provisional

judgment of divorce. It is in effect the same as a separation from bed and board, although an
absolute divorce may follow after the lapse of the prescribed period during which no
reconciliation is effected.

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

On its face, the herein Australian divorce decree contains a restriction that reads:

1. A party to a marriage who marries again before this decree becomes absolute (unless
the other party has died) commits the offence of bigamy.

This quotation bolsters our contention that the divorce obtained by respondent may have been
restricted. It did not absolutely establish his legal capacity to remarry according to his national
law. Hence, we find no basis for the ruling of the trial court, which erroneously assumed that the
Australian divorce ipso facto restored respondents capacity to remarry despite the paucity of
evidence on this matter.

We also reject the claim of respondent that the divorce decree raises a disputable presumption or
presumptive evidence as to his civil status based on Section 48, Rule 39 of the Rules of Court,
for the simple reason that no proof has been presented on the legal effects of the divorce decree
obtained under Australian laws.

Significance of the Certificate of Legal Capacity

Petitioner argues that the certificate of legal capacity required by Article 21 of the Family Code
was not submitted together with the application for a marriage license. According to her, its
absence is proof that respondent did not have legal capacity to remarry.

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

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

Based on the above records, we cannot conclude that respondent, who was then a naturalized
Australian citizen, was legally capacitated to marry petitioner on January 12, 1994. We agree
with petitioners contention that the court a quo erred in finding that the divorce decree ipso
facto clothed respondent with the legal capacity to remarry without requiring him to adduce
sufficient evidence to show the Australian personal law governing his status; or at the very least,
to prove his legal capacity to contract the second marriage.

Neither can we grant petitioners prayer to declare her marriage to respondent null and void on
the ground of bigamy. After all, it may turn out that under Australian law, he was really
capacitated to marry petitioner as a direct result of the divorce decree. Hence, we believe that
the most judicious course is to remand this case to the trial court to receive evidence, if any,
which show petitioners legal capacity to marry petitioner. Failing in that, then the court a quo
may declare a nullity of the parties marriage on the ground of bigamy, there being already in
evidence two existing marriage certificates, which were both obtained in the Philippines, one in
Malabon, Metro Manila dated March 1, 1987 and the other, in Cabanatuan City dated January
12, 1994.

WHEREFORE, in the interest of orderly procedure and substantial justice, we REMAND the
case to the court a quo for the purpose of receiving evidence which conclusively show
respondents legal capacity to marry petitioner; and failing in that, of declaring the parties
marriage void on the ground of bigamy, as above discussed. No costs.

SO ORDERED.

Melo, (Chairman), Vitug, and Sandoval-Gutierrez, JJ., concur.

RECENT JURISPRUDENCE CIVIL LAW

REPUBLIC OF THE PHILIPPINES v. CIPRIANO ORBECIDO III
GR. No. 154380, 5 October 2005, First Division (Quisumbing, J.)
Given a valid marriage between two Filipino citizens, where one party is later naturalized as a
foreign
citizen and obtains a valid divorce decree capacitating him or her to remarry, can the Filipino
spouse likewise
remarry under Philippine law?
On 24 May 1981, Cipriano Orbecido III married Lady Myros M. Villanueva and their
marriage was blessed with a son and a daughter, Kristoffer Simbortriz V. Orbecido and Lady
Kimberly V. Orbecido.
In 1986, his wife left for the United States bringing along their son Kristoffer. A few
years later, Cipriano discovered that his wife had been naturalized as an American citizen
and sometime in 2000, learned from his son that his wife had obtained a divorce decree. His
wife then married Innocent Stanley and is now currently living in San Gabriel, California with
her child by him.
Cipriano thereafter filed with the trial court a petition for authority to remarry invoking
Paragraph 2 of Article 26 of the Family Code (FC). No opposition was filed. Finding merit in
the petition, the court granted the same. The Republic, herein petitioner, through the Office of
the Solicitor General (OSG), sought reconsideration but it was denied. Hence, this petition.
ISSUE:
Whether or not respondent can remarry under Art. 26 of the Family Code
HELD: The petition is granted.
The OSG contends that par. 2 Art. 26 of FC is not applicable to the instant case because
it only applies to a valid mixed marriage; that is, a marriage celebrated between a Filipino citizen
and an alien. Furthermore, the OSG argues there is no law that governs the respondents
situation. The OSG posits that this is a matter of legislation and not of judicial determination.
The respondent admits that Art. 26 is not directly applicable to his case, but insists that
since his naturalized alien wife obtained a divorce decree which capacitated her to remarry, he is
likewise capacitated by operation of law pursuant to Section 12, Article II of the Constitution.
The Court noted that the petition for authority to remarry filed before the trial court
actually constituted a petition for declaratory relief. The requisites of a petition for declaratory
relief are: (1) there must be a justiciable controversy; (2) the controversy must be between
persons whose interests are adverse; (3) that the party seeking the relief has a legal interest in the
controversy; and (4) that the issue is ripe for judicial determination. This case satisfies all the
requisites for the grant of a petition for declaratory relief.
Article 26 does not appear to govern the situation presented by the case at hand. It
seems to apply only to cases where at the time of the celebration of the marriage, the parties are
a Filipino citizen and a foreigner. The instant case is one where at the time the marriage was
solemnized, the parties were two Filipino citizens, but later on, the wife was naturalized as an
American citizen and subsequently obtained a divorce granting her capacity to remarry, and
indeed she remarried an American citizen while residing in the USA
RECENT JURISPRUDENCE CIVIL LAW
Records of the proceedings of the FC deliberations showed that the intent of Paragraph
2 of Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil Code Revision
Committee, is to avoid the absurd situation where the Filipino spouse remains married to the
alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse.
Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v. Romillo, Jr.,
which involved a marriage between a Filipino citizen and a foreigner where the Court held that a
divorce decree validly obtained by the alien spouse is valid in the Philippines, and consequently,
the Filipino spouse is capacitated to remarry under Philippine law.
In the 1998 case of Quita v. Court of Appeals, the parties were Filipino citizens when they
got married. The wife became a naturalized American citizen in 1954 and obtained a divorce in
the same year. The Court therein hinted, by way of obiter dictum, that a Filipino divorced by his
naturalized foreign spouse is no longer married under Philippine law and can thus remarry.
Thus, taking into consideration the legislative intent and applying the rule of reason, the
Court holds that Paragraph 2 of Article 26 should be interpreted to include cases involving
parties who, at the time of the celebration of the marriage were Filipino citizens, but later on,
one of them became naturalized as a foreign citizen and obtained a divorce decree. The Filipino
spouse should likewise be allowed to remarry as if the other party were a foreigner at the time of
the solemnization of the marriage. To rule otherwise would be to sanction absurdity and
injustice.
In view of the foregoing, the twin elements for the application of Paragraph 2 of Article
26 are as follows: (1) There is a valid marriage that has been celebrated between a Filipino
citizen
and a foreigner; and (2) A valid divorce is obtained abroad by the alien spouse capacitating him
or her to remarry. The reckoning point is not the citizenship of the parties at the time of the
celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by
the alien
spouse capacitating the latter to remarry.
In this case, when Ciprianos wife was naturalized as an American citizen, there was still
a valid marriage that had been celebrated between her and Cipriano. Then the naturalized alien
wife subsequently obtained a valid divorce capacitating her to remarry. Clearly, the twin
requisites for the application of Paragraph 2 of Article 26 are both satisfied. Thus Cipriano, the
divorced Filipino spouse, should be allowed to remarry.
However, the Court notes that the records are bereft of competent evidence duly
submitted by respondent concerning the divorce decree and the naturalization of respondents
wife. It is settled rule that one who alleges a fact has the burden of proving it and mere
allegation is not evidence. For his plea to prosper, the respondent must prove his allegation that
his wife was naturalized as an American citizen, must prove the divorce as a fact and
demonstrate its conformity to the foreign law allowing it, and that such foreign law must also be
proved as our courts cannot take judicial notice of foreign laws. Furthermore, the respondent
must also show that the divorce decree allows his former wife to remarry as specifically required
in Article 26. Otherwise, there would be no evidence sufficient to declare that he is capacitated
to enter into another marriage.
Nevertheless, the Court is unanimous in holding that Paragraph 2 of Article 26 of the FC
should be interpreted to allow a Filipino citizen, who has been divorced by a spouse who had
RECENT JURISPRUDENCE CIVIL LAW
acquired foreign citizenship and remarried, also to remarry. However, due to lack of sufficient
evidence submitted and on record, the Court is unable to declare, based on the respondents
bare allegations that his wife, who was naturalized as an American citizen, had obtained a
divorce
decree and had remarried an American, that the respondent is now capacitated to remarry. Such
declaration could only be made properly upon the respondents submission of the aforecited
evidence in his favor.

G.R. No. 133743 February 6, 2007

EDGAR SAN LUIS, Petitioner,

vs.
FELICIDAD SAN LUIS, Respondent.

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

G.R. No. 134029 February 6, 2007

RODOLFO SAN LUIS, Petitioner,

vs.
FELICIDAD SAGALONGOS alias FELICIDAD SAN LUIS, Respondent.

DECISION

YNARES-SANTIAGO, J.:

Before us are consolidated petitions for review assailing the February 4, 1998 Decision 1 of the
Court of Appeals in CA-G.R. CV No. 52647, which reversed and set aside the September 12,
1995 2 and January 31, 1996 3 Resolutions of the Regional Trial Court of Makati City, Branch
134 in SP. Proc. No. M-3708; and its May 15, 1998 Resolution 4 denying petitioners motion for
reconsideration.
The instant case involves the settlement of the estate of Felicisimo T. San Luis (Felicisimo), who
was the former governor of the Province of Laguna. During his lifetime, Felicisimo contracted
three marriages. His first marriage was with Virginia Sulit on March 17, 1942 out of which were
born six children, namely: Rodolfo, Mila, Edgar, Linda, Emilita and Manuel. On August 11,
1963, Virginia predeceased Felicisimo.

Five years later, on May 1, 1968, Felicisimo married Merry Lee Corwin, with whom he had a
son, Tobias. However, on October 15, 1971, Merry Lee, an American citizen, filed a Complaint
for Divorce 5 before the Family Court of the First Circuit, State of Hawaii, United States of
America (U.S.A.), which issued a Decree Granting Absolute Divorce and Awarding Child
Custody on December 14, 1973. 6

On June 20, 1974, Felicisimo married respondent Felicidad San Luis, then surnamed Sagalongos,
before Rev. Fr. William Meyer, Minister of the United Presbyterian at Wilshire Boulevard, Los
Angeles, California, U.S.A. 7 He had no children with respondent but lived with her for 18 years
from the time of their marriage up to his death on December 18, 1992.

Thereafter, respondent sought the dissolution of their conjugal partnership assets and the
settlement of Felicisimos estate. On December 17, 1993, she filed a petition for letters of
administration 8 before the Regional Trial Court of Makati City, docketed as SP. Proc. No. M-
3708 which was raffled to Branch 146 thereof.

Respondent alleged that she is the widow of Felicisimo; that, at the time of his death, the
decedent was residing at 100 San Juanico Street, New Alabang Village, Alabang, Metro Manila;
that the decedents surviving heirs are respondent as legal spouse, his six children by his first
marriage, and son by his second marriage; that the decedent left real properties, both conjugal
and exclusive, valued at P30,304,178.00 more or less; that the decedent does not have any
unpaid debts. Respondent prayed that the conjugal partnership assets be liquidated and that
letters of administration be issued to her.

On February 4, 1994, petitioner Rodolfo San Luis, one of the children of Felicisimo by his first
marriage, filed a motion to dismiss 9 on the grounds of improper venue and failure to state a
cause of action. Rodolfo claimed that the petition for letters of administration should have been
filed in the Province of Laguna because this was Felicisimos place of residence prior to his
death. He further claimed that respondent has no legal personality to file the petition because she
was only a mistress of Felicisimo since the latter, at the time of his death, was still legally
married to Merry Lee.

On February 15, 1994, Linda invoked the same grounds and joined her brother Rodolfo in
seeking the dismissal 10 of the petition. On February 28, 1994, the trial court issued an Order 11
denying the two motions to dismiss.

Unaware of the denial of the motions to dismiss, respondent filed on March 5, 1994 her
opposition 12 thereto. She submitted documentary evidence showing that while Felicisimo
exercised the powers of his public office in Laguna, he regularly went home to their house in
New Alabang Village, Alabang, Metro Manila which they bought sometime in 1982. Further, she
presented the decree of absolute divorce issued by the Family Court of the First Circuit, State of
Hawaii to prove that the marriage of Felicisimo to Merry Lee had already been dissolved. Thus,
she claimed that Felicisimo had the legal capacity to marry her by virtue of paragraph 2, 13
Article 26 of the Family Code and the doctrine laid down in Van Dorn v. Romillo, Jr. 14

Thereafter, Linda, Rodolfo and herein petitioner Edgar San Luis, separately filed motions for
reconsideration from the Order denying their motions to dismiss. 15 They asserted that paragraph
2, Article 26 of the Family Code cannot be given retroactive effect to validate respondents
bigamous marriage with Felicisimo because this would impair vested rights in derogation of
Article 256 16 of the Family Code.

On April 21, 1994, Mila, another daughter of Felicisimo from his first marriage, filed a motion to
disqualify Acting Presiding Judge Anthony E. Santos from hearing the case.

On October 24, 1994, the trial court issued an Order 17 denying the motions for reconsideration.
It ruled that respondent, as widow of the decedent, possessed the legal standing to file the
petition and that venue was properly laid. Meanwhile, the motion for disqualification was
deemed moot and academic 18 because then Acting Presiding Judge Santos was substituted by
Judge Salvador S. Tensuan pending the resolution of said motion.

Mila filed a motion for inhibition 19 against Judge Tensuan on November 16, 1994. On even date,
Edgar also filed a motion for reconsideration 20 from the Order denying their motion for
reconsideration arguing that it does not state the facts and law on which it was based.

On November 25, 1994, Judge Tensuan issued an Order 21 granting the motion for inhibition. The
case was re-raffled to Branch 134 presided by Judge Paul T. Arcangel.

On April 24, 1995, 22 the trial court required the parties to submit their respective position papers
on the twin issues of venue and legal capacity of respondent to file the petition. On May 5, 1995,
Edgar manifested 23 that he is adopting the arguments and evidence set forth in his previous
motion for reconsideration as his position paper. Respondent and Rodolfo filed their position
papers on June 14, 24 and June 20, 25 1995, respectively.

On September 12, 1995, the trial court dismissed the petition for letters of administration. It held
that, at the time of his death, Felicisimo was the duly elected governor and a resident of the
Province of Laguna. Hence, the petition should have been filed in Sta. Cruz, Laguna and not in
Makati City. It also ruled that respondent was without legal capacity to file the petition for letters
of administration because her marriage with Felicisimo was bigamous, thus, void ab initio. It
found that the decree of absolute divorce dissolving Felicisimos marriage to Merry Lee was not
valid in the Philippines and did not bind Felicisimo who was a Filipino citizen. It also ruled that
paragraph 2, Article 26 of the Family Code cannot be retroactively applied because it would
impair the vested rights of Felicisimos legitimate children.

Respondent moved for reconsideration 26 and for the disqualification 27 of Judge Arcangel but
said motions were denied. 28
Respondent appealed to the Court of Appeals which reversed and set aside the orders of the trial
court in its assailed Decision dated February 4, 1998, the dispositive portion of which states:

WHEREFORE, the Orders dated September 12, 1995 and January 31, 1996 are hereby
REVERSED and SET ASIDE; the Orders dated February 28 and October 24, 1994 are
REINSTATED; and the records of the case is REMANDED to the trial court for further
proceedings. 29

The appellante court ruled that under Section 1, Rule 73 of the Rules of Court, the term "place of
residence" of the decedent, for purposes of fixing the venue of the settlement of his estate, refers
to the personal, actual or physical habitation, or actual residence or place of abode of a person as
distinguished from legal residence or domicile. It noted that although Felicisimo discharged his
functions as governor in Laguna, he actually resided in Alabang, Muntinlupa. Thus, the petition
for letters of administration was properly filed in Makati City.

The Court of Appeals also held that Felicisimo had legal capacity to marry respondent by virtue
of paragraph 2, Article 26 of the Family Code and the rulings in Van Dorn v. Romillo, Jr. 30 and
Pilapil v. Ibay-Somera. 31 It found that the marriage between Felicisimo and Merry Lee was
validly dissolved by virtue of the decree of absolute divorce issued by the Family Court of the
First Circuit, State of Hawaii. As a result, under paragraph 2, Article 26, Felicisimo was
capacitated to contract a subsequent marriage with respondent. Thus

With the well-known rule express mandate of paragraph 2, Article 26, of the Family Code of
the Philippines, the doctrines in Van Dorn, Pilapil, and the reason and philosophy behind the
enactment of E.O. No. 227, there is no justiciable reason to sustain the individual view
sweeping statement of Judge Arc[h]angel, that "Article 26, par. 2 of the Family Code,
contravenes the basic policy of our state against divorce in any form whatsoever." Indeed, courts
cannot deny what the law grants. All that the courts should do is to give force and effect to the
express mandate of the law. The foreign divorce having been obtained by the Foreigner on
December 14, 1992, 32 the Filipino divorcee, "shall x x x have capacity to remarry under
Philippine laws". For this reason, the marriage between the deceased and petitioner should not be
denominated as "a bigamous marriage.

Therefore, under Article 130 of the Family Code, the petitioner as the surviving spouse can
institute the judicial proceeding for the settlement of the estate of the deceased. x x x 33

Edgar, Linda, and Rodolfo filed separate motions for reconsideration 34 which were denied by the
Court of Appeals.

On July 2, 1998, Edgar appealed to this Court via the instant petition for review on certiorari. 35
Rodolfo later filed a manifestation and motion to adopt the said petition which was granted. 36

In the instant consolidated petitions, Edgar and Rodolfo insist that the venue of the subject
petition for letters of administration was improperly laid because at the time of his death,
Felicisimo was a resident of Sta. Cruz, Laguna. They contend that pursuant to our rulings in
Nuval v. Guray 37 and Romualdez v. RTC, Br. 7, Tacloban City, 38 "residence" is synonymous
with "domicile" which denotes a fixed permanent residence to which when absent, one intends to
return. They claim that a person can only have one domicile at any given time. Since Felicisimo
never changed his domicile, the petition for letters of administration should have been filed in
Sta. Cruz, Laguna.

Petitioners also contend that respondents marriage to Felicisimo was void and bigamous because
it was performed during the subsistence of the latters marriage to Merry Lee. They argue that
paragraph 2, Article 26 cannot be retroactively applied because it would impair vested rights and
ratify the void bigamous marriage. As such, respondent cannot be considered the surviving wife
of Felicisimo; hence, she has no legal capacity to file the petition for letters of administration.

The issues for resolution: (1) whether venue was properly laid, and (2) whether respondent has
legal capacity to file the subject petition for letters of administration.

The petition lacks merit.

Under Section 1, 39 Rule 73 of the Rules of Court, the petition for letters of administration of the
estate of Felicisimo should be filed in the Regional Trial Court of the province "in which he
resides at the time of his death." In the case of Garcia Fule v. Court of Appeals, 40 we laid down
the doctrinal rule for determining the residence as contradistinguished from domicile of the
decedent for purposes of fixing the venue of the settlement of his estate:

[T]he term "resides" connotes ex vi termini "actual residence" as distinguished from "legal
residence or domicile." This term "resides," like the terms "residing" and "residence," is elastic
and should be interpreted in the light of the object or purpose of the statute or rule in which it is
employed. In the application of venue statutes and rules Section 1, Rule 73 of the Revised
Rules of Court is of such nature residence rather than domicile is the significant factor. Even
where the statute uses the word "domicile" still it is construed as meaning residence and not
domicile in the technical sense. Some cases make a distinction between the terms "residence"
and "domicile" but as generally used in statutes fixing venue, the terms are synonymous, and
convey the same meaning as the term "inhabitant." In other words, "resides" should be viewed or
understood in its popular sense, meaning, the personal, actual or physical habitation of a person,
actual residence or place of abode. It signifies physical presence in a place and actual stay
thereat. In this popular sense, the term means merely residence, that is, personal residence, not
legal residence or domicile. Residence simply requires bodily presence as an inhabitant in a
given place, while domicile requires bodily presence in that place and also an intention to make
it ones domicile. No particular length of time of residence is required though; however, the
residence must be more than temporary. 41 (Emphasis supplied)

It is incorrect for petitioners to argue that "residence," for purposes of fixing the venue of the
settlement of the estate of Felicisimo, is synonymous with "domicile." The rulings in Nuval and
Romualdez are inapplicable to the instant case because they involve election cases. Needless to
say, there is a distinction between "residence" for purposes of election laws and "residence" for
purposes of fixing the venue of actions. In election cases, "residence" and "domicile" are treated
as synonymous terms, that is, the fixed permanent residence to which when absent, one has the
intention of returning. 42 However, for purposes of fixing venue under the Rules of Court, the
"residence" of a person is his personal, actual or physical habitation, or actual residence or place
of abode, which may not necessarily be his legal residence or domicile provided he resides
therein with continuity and consistency. 43 Hence, it is possible that a person may have his
residence in one place and domicile in another.

In the instant case, while petitioners established that Felicisimo was domiciled in Sta. Cruz,
Laguna, respondent proved that he also maintained a residence in Alabang, Muntinlupa from
1982 up to the time of his death. Respondent submitted in evidence the Deed of Absolute Sale 44
dated January 5, 1983 showing that the deceased purchased the aforesaid property. She also
presented billing statements 45 from the Philippine Heart Center and Chinese General Hospital
for the period August to December 1992 indicating the address of Felicisimo at "100 San
Juanico, Ayala Alabang, Muntinlupa." Respondent also presented proof of membership of the
deceased in the Ayala Alabang Village Association 46 and Ayala Country Club, Inc., 47 letter-
envelopes 48 from 1988 to 1990 sent by the deceaseds children to him at his Alabang address,
and the deceaseds calling cards 49 stating that his home/city address is at "100 San Juanico,
Ayala Alabang Village, Muntinlupa" while his office/provincial address is in "Provincial Capitol,
Sta. Cruz, Laguna."

From the foregoing, we find that Felicisimo was a resident of Alabang, Muntinlupa for purposes
of fixing the venue of the settlement of his estate. Consequently, the subject petition for letters of
administration was validly filed in the Regional Trial Court 50 which has territorial jurisdiction
over Alabang, Muntinlupa. The subject petition was filed on December 17, 1993. At that time,
Muntinlupa was still a municipality and the branches of the Regional Trial Court of the National
Capital Judicial Region which had territorial jurisdiction over Muntinlupa were then seated in
Makati City as per Supreme Court Administrative Order No. 3. 51 Thus, the subject petition was
validly filed before the Regional Trial Court of Makati City.

Anent the issue of respondent Felicidads legal personality to file the petition for letters of
administration, we must first resolve the issue of whether a Filipino who is divorced by his alien
spouse abroad may validly remarry under the Civil Code, considering that Felicidads marriage
to Felicisimo was solemnized on June 20, 1974, or before the Family Code took effect on August
3, 1988. In resolving this issue, we need not retroactively apply the provisions of the Family
Code, particularly Art. 26, par. (2) considering that there is sufficient jurisprudential basis
allowing us to rule in the affirmative.

The case of Van Dorn v. Romillo, Jr. 52 involved a marriage between a foreigner and his Filipino
wife, which marriage was subsequently dissolved through a divorce obtained abroad by the
latter. Claiming that the divorce was not valid under Philippine law, the alien spouse alleged that
his interest in the properties from their conjugal partnership should be protected. The Court,
however, recognized the validity of the divorce and held that the alien spouse had no interest in
the properties acquired by the Filipino wife after the divorce. Thus:

In this case, the divorce in Nevada released private respondent from the marriage from the
standards of American law, under which divorce dissolves the marriage. As stated by the Federal
Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799:
"The purpose and effect of a decree of divorce from the bond of matrimony by a competent
jurisdiction are to change the existing status or domestic relation of husband and wife, and to free
them both from the bond. The marriage tie, when thus severed as to one party, ceases to bind
either. A husband without a wife, or a wife without a husband, is unknown to the law. When the
law provides, in the nature of a penalty, that the guilty party shall not marry again, that party, as
well as the other, is still absolutely freed from the bond of the former marriage."

Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He
would have no standing to sue in the case below as petitioners husband entitled to exercise
control over conjugal assets. As he is bound by the Decision of his own countrys Court, which
validly exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped
by his own representation before said Court from asserting his right over the alleged conjugal
property. 53

As to the effect of the divorce on the Filipino wife, the Court ruled that she should no longer be
considered married to the alien spouse. Further, she should not be required to perform her marital
duties and obligations. It held:

To maintain, as private respondent does, that, under our laws, petitioner has to be
considered still married to private respondent and still subject to a wife's obligations under
Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be obliged to live
together with, observe respect and fidelity, and render support to private respondent. The latter
should not continue to be one of her heirs with possible rights to conjugal property. She should
not be discriminated against in her own country if the ends of justice are to be served. 54
(Emphasis added)

This principle was thereafter applied in Pilapil v. Ibay-Somera 55 where the Court recognized the
validity of a divorce obtained abroad. In the said case, it was held that the alien spouse is not a
proper party in filing the adultery suit against his Filipino wife. The Court stated that "the
severance of the marital bond had the effect of dissociating the former spouses from each other,
hence the actuations of one would not affect or cast obloquy on the other." 56

Likewise, in Quita v. Court of Appeals, 57 the Court stated that where a Filipino is divorced by his
naturalized foreign spouse, the ruling in Van Dorn applies. 58 Although decided on December 22,
1998, the divorce in the said case was obtained in 1954 when the Civil Code provisions were still
in effect.

The significance of the Van Dorn case to the development of limited recognition of divorce in the
Philippines cannot be denied. The ruling has long been interpreted as severing marital ties
between parties in a mixed marriage and capacitating the Filipino spouse to remarry as a
necessary consequence of upholding the validity of a divorce obtained abroad by the alien
spouse. In his treatise, Dr. Arturo M. Tolentino cited Van Dorn stating that "if the foreigner
obtains a valid foreign divorce, the Filipino spouse shall have capacity to remarry under
Philippine law." 59 In Garcia v. Recio, 60 the Court likewise cited the aforementioned case in
relation to Article 26. 61
In the recent case of Republic v. Orbecido III, 62 the historical background and legislative intent
behind paragraph 2, Article 26 of the Family Code were discussed, to wit:

Brief Historical Background

On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209,
otherwise known as the "Family Code," which took effect on August 3, 1988. Article 26 thereof
states:

All marriages solemnized outside the Philippines in accordance with the laws in force in the
country where they were solemnized, and valid there as such, shall also be valid in this country,
except those prohibited under Articles 35, 37, and 38.

On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No. 227
was likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A second
paragraph was added to Article 26. As so amended, it now provides:

ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force
in the country where they were solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce
is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the
Filipino spouse shall have capacity to remarry under Philippine law. (Emphasis supplied)

xxxx
Legislative Intent

Records of the proceedings of the Family Code deliberations showed that the intent of Paragraph
2 of Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil Code Revision
Committee, is to avoid the absurd situation where the Filipino spouse remains married to the
alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse.

Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v.
Romillo, Jr. The Van Dorn case involved a marriage between a Filipino citizen and a
foreigner. The Court held therein that a divorce decree validly obtained by the alien spouse
is valid in the Philippines, and consequently, the Filipino spouse is capacitated to remarry
under Philippine law. 63 (Emphasis added)

As such, the Van Dorn case is sufficient basis in resolving a situation where a divorce is validly
obtained abroad by the alien spouse. With the enactment of the Family Code and paragraph 2,
Article 26 thereof, our lawmakers codified the law already established through judicial
precedent.1awphi1.net

Indeed, when the object of a marriage is defeated by rendering its continuance intolerable to one
of the parties and productive of no possible good to the community, relief in some way should be
obtainable. 64 Marriage, being a mutual and shared commitment between two parties, cannot
possibly be productive of any good to the society where one is considered released from the
marital bond while the other remains bound to it. Such is the state of affairs where the alien
spouse obtains a valid divorce abroad against the Filipino spouse, as in this case.

Petitioners cite Articles 15 65 and 17 66 of the Civil Code in stating that the divorce is void under
Philippine law insofar as Filipinos are concerned. However, in light of this Courts rulings in the
cases discussed above, the Filipino spouse should not be discriminated against in his own
country if the ends of justice are to be served. 67 In Alonzo v. Intermediate Appellate Court, 68 the
Court stated:

But as has also been aptly observed, we test a law by its results; and likewise, we may add, by its
purposes. It is a cardinal rule that, in seeking the meaning of the law, the first concern of the
judge should be to discover in its provisions the intent of the lawmaker. Unquestionably, the law
should never be interpreted in such a way as to cause injustice as this is never within the
legislative intent. An indispensable part of that intent, in fact, for we presume the good motives
of the legislature, is to render justice.

Thus, we interpret and apply the law not independently of but in consonance with justice. Law
and justice are inseparable, and we must keep them so. To be sure, there are some laws that,
while generally valid, may seem arbitrary when applied in a particular case because of its
peculiar circumstances. In such a situation, we are not bound, because only of our nature and
functions, to apply them just the same, in slavish obedience to their language. What we do
instead is find a balance between the word and the will, that justice may be done even as the law
is obeyed.

As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is
worded, yielding like robots to the literal command without regard to its cause and consequence.
"Courts are apt to err by sticking too closely to the words of a law," so we are warned, by Justice
Holmes again, "where these words import a policy that goes beyond them."

xxxx

More than twenty centuries ago, Justinian defined justice "as the constant and perpetual wish to
render every one his due." That wish continues to motivate this Court when it assesses the facts
and the law in every case brought to it for decision. Justice is always an essential ingredient of its
decisions. Thus when the facts warrants, we interpret the law in a way that will render justice,
presuming that it was the intention of the lawmaker, to begin with, that the law be dispensed with
justice. 69

Applying the above doctrine in the instant case, the divorce decree allegedly obtained by Merry
Lee which absolutely allowed Felicisimo to remarry, would have vested Felicidad with the legal
personality to file the present petition as Felicisimos surviving spouse. However, the records
show that there is insufficient evidence to prove the validity of the divorce obtained by Merry
Lee as well as the marriage of respondent and Felicisimo under the laws of the U.S.A. In Garcia
v. Recio, 70 the Court laid down the specific guidelines for pleading and proving foreign law and
divorce judgments. It held that presentation solely of the divorce decree is insufficient and that
proof of its authenticity and due execution must be presented. Under Sections 24 and 25 of Rule
132, a writing or document may be proven as a public or official record of a foreign country by
either (1) an official publication or (2) a copy thereof attested by the officer having legal custody
of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied
by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign
service stationed in the foreign country in which the record is kept and (b) authenticated by the
seal of his office. 71

With regard to respondents marriage to Felicisimo allegedly solemnized in California, U.S.A.,

she submitted photocopies of the Marriage Certificate and the annotated text 72 of the Family
Law Act of California which purportedly show that their marriage was done in accordance with
the said law. As stated in Garcia, however, the Court cannot take judicial notice of foreign laws
as they must be alleged and proved. 73

Therefore, this case should be remanded to the trial court for further reception of evidence on the
divorce decree obtained by Merry Lee and the marriage of respondent and Felicisimo.

Even assuming that Felicisimo was not capacitated to marry respondent in 1974, nevertheless,
we find that the latter has the legal personality to file the subject petition for letters of
administration, as she may be considered the co-owner of Felicisimo as regards the properties
that were acquired through their joint efforts during their cohabitation.

Section 6, 74 Rule 78 of the Rules of Court states that letters of administration may be granted to
the surviving spouse of the decedent. However, Section 2, Rule 79 thereof also provides in part:

SEC. 2. Contents of petition for letters of administration. A petition for letters of administration
must be filed by an interested person and must show, as far as known to the petitioner: x x x.

An "interested person" has been defined as one who would be benefited by the estate, such as an
heir, or one who has a claim against the estate, such as a creditor. The interest must be material
and direct, and not merely indirect or contingent. 75

In the instant case, respondent would qualify as an interested person who has a direct interest in
the estate of Felicisimo by virtue of their cohabitation, the existence of which was not denied by
petitioners. If she proves the validity of the divorce and Felicisimos capacity to remarry, but
fails to prove that her marriage with him was validly performed under the laws of the U.S.A.,
then she may be considered as a co-owner under Article 144 76 of the Civil Code. This provision
governs the property relations between parties who live together as husband and wife without the
benefit of marriage, or their marriage is void from the beginning. It provides that the property
acquired by either or both of them through their work or industry or their wages and salaries
shall be governed by the rules on co-ownership. In a co-ownership, it is not necessary that the
property be acquired through their joint labor, efforts and industry. Any property acquired during
the union is prima facie presumed to have been obtained through their joint efforts. Hence, the
portions belonging to the co-owners shall be presumed equal, unless the contrary is proven. 77
Meanwhile, if respondent fails to prove the validity of both the divorce and the marriage, the
applicable provision would be Article 148 of the Family Code which has filled the hiatus in
Article 144 of the Civil Code by expressly regulating the property relations of couples living
together as husband and wife but are incapacitated to marry. 78 In Saguid v. Court of Appeals, 79
we held that even if the cohabitation or the acquisition of property occurred before the Family
Code took effect, Article 148 governs. 80 The Court described the property regime under this
provision as follows:

The regime of limited co-ownership of property governing the union of parties who are not
legally capacitated to marry each other, but who nonetheless live together as husband and wife,
applies to properties acquired during said cohabitation in proportion to their respective
contributions. Co-ownership will only be up to the extent of the proven actual contribution of
money, property or industry. Absent proof of the extent thereof, their contributions and
corresponding shares shall be presumed to be equal.

xxxx

In the cases of Agapay v. Palang, and Tumlos v. Fernandez, which involved the issue of co-
ownership of properties acquired by the parties to a bigamous marriage and an adulterous
relationship, respectively, we ruled that proof of actual contribution in the acquisition of the
property is essential. x x x

As in other civil cases, the burden of proof rests upon the party who, as determined by the
pleadings or the nature of the case, asserts an affirmative issue. Contentions must be proved by
competent evidence and reliance must be had on the strength of the partys own evidence and not
upon the weakness of the opponents defense. x x x 81

In view of the foregoing, we find that respondents legal capacity to file the subject petition for
letters of administration may arise from her status as the surviving wife of Felicisimo or as his
co-owner under Article 144 of the Civil Code or Article 148 of the Family Code.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals reinstating and
affirming the February 28, 1994 Order of the Regional Trial Court which denied petitioners
motion to dismiss and its October 24, 1994 Order which dismissed petitioners motion for
reconsideration is AFFIRMED. Let this case be REMANDED to the trial court for further
proceedings.

[A.M. No. MTJ-00-1329. March 8, 2001]

HERMINIA BORJA-MANZANO, petitioner, vs. JUDGE ROQUE R. SANCHEZ, MTC,

Infanta, Pangasinan, respondent.

RESOLUTION

DAVIDE, JR., C.J.:

The solemnization of a marriage between two contracting parties who were both bound by a
prior existing marriage is the bone of contention of the instant complaint against respondent
Judge Roque R. Sanchez, Municipal Trial Court, Infanta, Pangasinan. For this act, complainant
Herminia Borja-Manzano charges respondent Judge with gross ignorance of the law in a sworn
Complaint-Affidavit filed with the Office of the Court Administrator on 12 May 1999.

Complainant avers that she was the lawful wife of the late David Manzano, having been married
to him on 21 May 1966 in San Gabriel Archangel Parish, Araneta Avenue, Caloocan City. Four
children were born out of that marriage. On 22 March 1993, however, her husband contracted
another marriage with one Luzviminda Payao before respondent Judge. When respondent Judge
solemnized said marriage, he knew or ought to know that the same was void and bigamous, as
the marriage contract clearly stated that both contracting parties were separated.

Respondent Judge, on the other hand, claims in his Comment that when he officiated the
marriage between Manzano and Payao he did not know that Manzano was legally married. What
he knew was that the two had been living together as husband and wife for seven years already
without the benefit of marriage, as manifested in their joint affidavit. According to him, had he
known that the late Manzano was married, he would have advised the latter not to marry again;
otherwise, he (Manzano) could be charged with bigamy. He then prayed that the complaint be
dismissed for lack of merit and for being designed merely to harass him.

After an evaluation of the Complaint and the Comment, the Court Administrator recommended
that respondent Judge be found guilty of gross ignorance of the law and be ordered to pay a fine
of P2,000, with a warning that a repetition of the same or similar act would be dealt with more
severely.

On 25 October 2000, this Court required the parties to manifest whether they were willing to
submit the case for resolution on the basis of the pleadings thus filed. Complainant answered in
the affirmative.

For his part, respondent Judge filed a Manifestation reiterating his plea for the dismissal of the
complaint and setting aside his earlier Comment. He therein invites the attention of the Court to
two separate affidavits of the late Manzano and of Payao, which were allegedly unearthed by a
member of his staff upon his instruction. In those affidavits, both David Manzano and
Luzviminda Payao expressly stated that they were married to Herminia Borja and Domingo
Relos, respectively; and that since their respective marriages had been marked by constant
quarrels, they had both left their families and had never cohabited or communicated with their
spouses anymore. Respondent Judge alleges that on the basis of those affidavits, he agreed to
solemnize the marriage in question in accordance with Article 34 of the Family Code.

We find merit in the complaint.

Article 34 of the Family Code provides:

No license shall be necessary for the marriage of a man and a woman who have lived together as
husband and wife for at least five years and without any legal impediment to marry each other.
The contracting parties shall state the foregoing facts in an affidavit before any person authorized
by law to administer oaths. The solemnizing officer shall also state under oath that he
ascertained the qualifications of the contracting parties and found no legal impediment to the
marriage.

For this provision on legal ratification of marital cohabitation to apply, the following requisites
must concur:

1. The man and woman must have been living together as husband and wife for at least five years
before the marriage;

2. The parties must have no legal impediment to marry each other;

3. The fact of absence of legal impediment between the parties must be present at the time of
marriage;

4. The parties must execute an affidavit stating that they have lived together for at least five years
[and are without legal impediment to marry each other]; and

5. The solemnizing officer must execute a sworn statement that he had ascertained the
qualifications of the parties and that he had found no legal impediment to their marriage.

Not all of these requirements are present in the case at bar. It is significant to note that in their
separate affidavits executed on 22 March 1993 and sworn to before respondent Judge himself,
David Manzano and Luzviminda Payao expressly stated the fact of their prior existing marriage.
Also, in their marriage contract, it was indicated that both were separated.

Respondent Judge knew or ought to know that a subsisting previous marriage is a diriment
impediment, which would make the subsequent marriage null and void. In fact, in his Comment,
he stated that had he known that the late Manzano was married he would have discouraged him
from contracting another marriage. And respondent Judge cannot deny knowledge of Manzanos
and Payaos subsisting previous marriage, as the same was clearly stated in their separate
affidavits which were subscribed and sworn to before him.

The fact that Manzano and Payao had been living apart from their respective spouses for a long
time already is immaterial. Article 63(1) of the Family Code allows spouses who have obtained
a decree of legal separation to live separately from each other, but in such a case the marriage
bonds are not severed. Else wise stated, legal separation does not dissolve the marriage tie,
much less authorize the parties to remarry. This holds true all the more when the separation is
merely de facto, as in the case at bar.

Neither can respondent Judge take refuge on the Joint Affidavit of David Manzano and
Luzviminda Payao stating that they had been cohabiting as husband and wife for seven years.
Just like separation, free and voluntary cohabitation with another person for at least five years
does not severe the tie of a subsisting previous marriage. Marital cohabitation for a long period
of time between two individuals who are legally capacitated to marry each other is merely a
ground for exemption from marriage license. It could not serve as a justification for respondent
Judge to solemnize a subsequent marriage vitiated by the impediment of a prior existing
marriage.

Clearly, respondent Judge demonstrated gross ignorance of the law when he solemnized a void
and bigamous marriage. The maxim ignorance of the law excuses no one has special
application to judges, who, under Rule 1.01 of the Code of Judicial Conduct, should be the
embodiment of competence, integrity, and independence. It is highly imperative that judges be
conversant with the law and basic legal principles. And when the law transgressed is simple and
elementary, the failure to know it constitutes gross ignorance of the law.

ACCORDINGLY, the recommendation of the Court Administrator is hereby ADOPTED, with

the MODIFICATION that the amount of fine to be imposed upon respondent Judge Roque
Sanchez is increased to P20,000.

SO ORDERED.

G.R. No. 108763 February 13, 1997

REPUBLIC OF THE PHILIPPINES,

vs.
COURT OF APPEALS and RORIDEL OLAVIANO MOLINA, respondents.

PANGANIBAN, J.:

The Family Code of the Philippines provides an entirely new ground (in addition to those
enumerated in the Civil Code) to assail the validity of a marriage, namely, "psychological
incapacity." Since the Code's effectivity, our courts have been swamped with various
petitions to declare marriages void based on this ground. Although this Court had
interpreted the meaning of psychological incapacity in the recent case of Santos vs. Court of
Appeals, still many judges and lawyers find difficulty in applying said novel provision in
specific cases. In the present case and in the context of the herein assailed Decision of the
Court of Appeals, the Solicitor General has labelled exaggerated to be sure but
nonetheless expressive of his frustration Article 36 as the "most liberal divorce
procedure in the world." Hence, this Court in addition to resolving the present case, finds
the need to lay down specific guidelines in the interpretation and application of Article 36
of the Family Code.

Before us is a petition for review on certiorari under Rule 45 challenging the January 25,
1993 Decision 1 of the Court of Appeals 2 in CA-G.R. CV No. 34858 affirming in toto the
May 14, 1991 decision of the Regional Trial Court of La Trinidad, 3 Benguet, which
declared the marriage of respondent Roridel Olaviano Molina to Reynaldo Molina void ab
initio, on the ground of "psychological incapacity" under Article 36 of the Family Code.

The Facts

This case was commenced on August 16, 1990 with the filing by respondent Roridel O.
Molina of a verified petition for declaration of nullity of her marriage to Reynaldo Molina.
Essentially, the petition alleged that Roridel and Reynaldo were married on April 14, 1985
at the San Agustin Church 4 in Manila; that a son, Andre O. Molina was born; that after a
year of marriage, Reynaldo showed signs of "immaturity and irresponsibility" as a
husband and a father since he preferred to spend more time with his peers and friends on
whom he squandered his money; that he depended on his parents for aid and assistance,
and was never honest with his wife in regard to their finances, resulting in frequent
quarrels between them; that sometime in February 1986, Reynaldo was relieved of his job
in Manila, and since then Roridel had been the sole breadwinner of the family; that in
October 1986 the couple had a very intense quarrel, as a result of which their relationship
was estranged; that in March 1987, Roridel resigned from her job in Manila and went to
live with her parents in Baguio City; that a few weeks later, Reynaldo left Roridel and their
child, and had since then abandoned them; that Reynaldo had thus shown that he was
psychologically incapable of complying with essential marital obligations and was a highly
immature and habitually quarrel some individual who thought of himself as a king to be
served; and that it would be to the couple's best interest to have their marriage declared
null and void in order to free them from what appeared to be an incompatible marriage
from the start.

In his Answer filed on August 28, 1989, Reynaldo admitted that he and Roridel could no
longer live together as husband and wife, but contended that their misunderstandings and
frequent quarrels were due to (1) Roridel's strange behavior of insisting on maintaining her
group of friends even after their marriage; (2) Roridel's refusal to perform some of her
marital duties such as cooking meals; and (3) Roridel's failure to run the household and
handle their finances.

During the pre-trial on October 17, 1990, the following were stipulated:

1. That the parties herein were legally married on April 14, 1985 at the
Church of St. Augustine, Manila;

2. That out of their marriage, a child named Albert Andre Olaviano Molina
was born on July 29, 1986;

3. That the parties are separated-in-fact for more than three years;

4. That petitioner is not asking support for her and her child;

5. That the respondent is not asking for damages;

 6. That the common child of the parties is in the custody of the petitioner
wife.

Evidence for herein respondent wife consisted of her own testimony and that of her friends
Rosemarie Ventura and Maria Leonora Padilla as well as of Ruth G. Lalas, a social worker,
and of Dr. Teresita Hidalgo-Sison, a psychiatrist of the Baguio General Hospital and
Medical Center. She also submitted documents marked as Exhibits "A" to "E-1."
Reynaldo did not present any evidence as he appeared only during the pre-trial conference.

On May 14, 1991, the trial court rendered judgment declaring the marriage void. The
appeal of petitioner was denied by the Court of Appeals which affirmed in toto the RTC's
decision. Hence, the present recourse.

The Issue

In his petition, the Solicitor General insists that "the Court of Appeals made an erroneous
and incorrect interpretation of the phrase 'psychological incapacity' (as provided under
Art. 36 of the Family Code) and made an incorrect application thereof to the facts of the
case," adding that the appealed Decision tended "to establish in effect the most liberal
divorce procedure in the world which is anathema to our culture."

In denying the Solicitor General's appeal, the respondent Court relied 5 heavily on the trial
court's findings "that the marriage between the parties broke up because of their opposing
and conflicting personalities." Then, it added it sown opinion that "the Civil Code Revision
Committee (hereinafter referred to as Committee) intended to liberalize the application of
our civil laws on personal and family rights. . . ." It concluded that:

As ground for annulment of marriage, We view psychologically incapacity as

a broad range of mental and behavioral conduct on the part of one spouse
indicative of how he or she regards the marital union, his or her personal
relationship with the other spouse, as well as his or her conduct in the long
haul for the attainment of the principal objectives of marriage. If said
conduct, observed and considered as a whole, tends to cause the union to self-
destruct because it defeats the very objectives of marriage, then there is
enough reason to leave the spouses to their individual fates.

In the case at bar, We find that the trial judge committed no indiscretion in
analyzing and deciding the instant case, as it did, hence, We find no cogent
reason to disturb the findings and conclusions thus made.

Respondent, in her Memorandum, adopts these discussions of the Court of Appeals.

The petitioner, on the other hand, argues that "opposing and conflicting personalities" is
not equivalent to psychological incapacity, explaining that such ground "is not simply the
neglect by the parties to the marriage of their responsibilities and duties, but a defect in
their psychological nature which renders them incapable of performing such marital
responsibilities and duties."

The Court's Ruling

The petition is meritorious.

In Leouel Santos vs. Court of Appeals 6 this Court, speaking thru Mr. Justice Jose C. Vitug,
ruled that "psychological incapacity should refer to no less than a mental (nor physical)
incapacity . . . and that (t)here is hardly any doubt that the intendment of the law has been
to confine the meaning of 'psychological incapacity' to the most serious cases of personality
disorders clearly demonstrative of an utter insensitivity or inability to give meaning and
significance to the marriage. This psychologic condition must exist at the time the marriage
is celebrated." Citing Dr. Gerardo Veloso, a former presiding judge of the Metropolitan
Marriage Tribunal of the Catholic Archdiocese of Manila, 7 Justice Vitug wrote that "the
psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence,
and (c) incurability."

On the other hand, in the present case, there is no clear showing to us that the
psychological defect spoken of is an incapacity. It appears to us to be more of a "difficulty,"
if not outright "refusal" or "neglect" in the performance of some marital obligations. Mere
showing of "irreconciliable differences" and "conflicting personalities" in no wise
constitutes psychological incapacity. It is not enough to prove that the parties failed to meet
their responsibilities and duties as married persons; it is essential that they must be shown
to be incapable of doing so, due to some psychological (nor physical) illness.

The evidence adduced by respondent merely showed that she and her husband could nor
get along with each other. There had been no showing of the gravity of the problem; neither
its juridical antecedence nor its incurability. The expert testimony of Dr. Sison showed no
incurable psychiatric disorder but only incompatibility, not psychological incapacity. Dr.
Sison testified: 8

COURT

Q It is therefore the recommendation of the psychiatrist based

on your findings that it is better for the Court to annul (sic) the
marriage?

A Yes, Your Honor.

Q There is no hope for the marriage?

A There is no hope, the man is also living with another woman.

 Q Is it also the stand of the psychiatrist that the parties are
psychologically unfit for each other but they are
psychologically fit with other parties?

A Yes, Your Honor.

Q Neither are they psychologically unfit for their professions?

A Yes, Your Honor.

The Court has no more questions.

In the case of Reynaldo, there is no showing that his alleged personality traits were
constitutive of psychological incapacity existing at the time of marriage celebration. While
some effort was made to prove that there was a failure to fulfill pre-nuptial impressions of
"thoughtfulness and gentleness" on Reynaldo's part of being "conservative, homely and
intelligent" on the part of Roridel, such failure of expectation is nor indicative of
antecedent psychological incapacity. If at all, it merely shows love's temporary blindness to
the faults and blemishes of the beloved.

During its deliberations, the Court decided to go beyond merely ruling on the facts of this
case vis-a-vis existing law and jurisprudence. In view of the novelty of Art. 36 of the Family
Code and the difficulty experienced by many trial courts interpreting and applying it, the
Court decided to invite two amici curiae, namely, the Most Reverend Oscar V. Cruz, 9 Vicar
Judicial (Presiding Judge) of the National Appellate Matrimonial Tribunal of the Catholic
Church in the Philippines, and Justice Ricardo C. Puno, 10 a member of the Family Code
Revision Committee. The Court takes this occasion to thank these friends of the Court for
their informative and interesting discussions during the oral argument on December 3,
1996, which they followed up with written memoranda.

From their submissions and the Court's own deliberations, the following guidelines in the
interpretation and application of Art. 36 of the Family Code are hereby handed down for
the guidance of the bench and the bar:

(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any
doubt should be resolved in favor of the existence and continuation of the marriage and
against its dissolution and nullity. This is rooted in the fact that both our Constitution and
our laws cherish the validity of marriage and unity of the family. Thus, our Constitution
devotes an entire Article on the Family, 11 recognizing it "as the foundation of the nation."
It decrees marriage as legally "inviolable," thereby protecting it from dissolution at the
whim of the parties. Both the family and marriage are to be "protected" by the state.

The Family Code 12 echoes this constitutional edict on marriage and the family and
emphasizes the permanence, inviolability and solidarity
(2) The root cause of the psychological incapacity must be (a) medically or clinically
identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly
explained in the decision. Article 36 of the Family Code requires that the incapacity must
be psychological not physical. although its manifestations and/or symptoms may be
physical. The evidence must convince the court that the parties, or one of them, was
mentally or physically ill to such an extent that the person could not have known the
obligations he was assuming, or knowing them, could not have given valid assumption
thereof. Although no example of such incapacity need be given here so as not to limit the
application of the provision under the principle of ejusdem generis, 13 nevertheless such root
cause must be identified as a psychological illness and its incapacitating nature explained.
Expert evidence may be given qualified psychiatrist and clinical psychologists.

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

(4) Such incapacity must also be shown to be medically or clinically permanent or

incurable. Such incurability may be absolute or even relative only in regard to the other
spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such
incapacity must be relevant to the assumption of marriage obligations, not necessarily to
those not related to marriage, like the exercise of a profession or employment in a job.
Hence, a pediatrician may be effective in diagnosing illnesses of children and prescribing
medicine to cure them but may not be psychologically capacitated to procreate, bear and
raise his/her own children as an essential obligation of marriage.

(5) Such illness must be grave enough to bring about the disability of the party to assume
the essential obligations of marriage. Thus, "mild characteriological peculiarities, mood
changes, occasional emotional outbursts" cannot be accepted as root causes. The illness
must be shown as downright incapacity or inability, nor a refusal, neglect or difficulty,
much less ill will. In other words, there is a natal or supervening disabling factor in the
person, an adverse integral element in the personality structure that effectively
incapacitates the person from really accepting and thereby complying with the obligations
essential to marriage.

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

(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic
Church in the Philippines, while not controlling or decisive, should be given great respect
by our courts. It is clear that Article 36 was taken by the Family Code Revision Committee
from Canon 1095 of the New Code of Canon Law, which became effective in 1983 and
which provides:
 The following are incapable of contracting marriage: Those who are unable
to assume the essential obligations of marriage due to causes of psychological
nature. 14

Since the purpose of including such provision in our Family Code is to harmonize our civil
laws with the religious faith of our people, it stands to reason that to achieve such
harmonization, great persuasive weight should be given to decision of such appellate
tribunal. Ideally subject to our law on evidence what is decreed as canonically invalid
should also be decreed civilly void.

This is one instance where, in view of the evident source and purpose of the Family Code
provision, contemporaneous religious interpretation is to be given persuasive effect. Here,
the State and the Church while remaining independent, separate and apart from each
other shall walk together in synodal cadence towards the same goal of protecting and
cherishing marriage and the family as the inviolable base of the nation.

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

In the instant case and applying Leouel Santos, we have already ruled to grant the petition.
Such ruling becomes even more cogent with the use of the foregoing guidelines.

WHEREFORE, the petition is GRANTED. The assailed Decision is REVERSED and SET
ASIDE. The marriage of Roridel Olaviano to Reynaldo Molina subsists and remains valid.

SO ORDERED.

Narvasa, C.J., Davide, Jr., Bellosillo, Melo, Puno Francisco, Hermosisima, Jr., and Torres,
Jr., JJ., concur.

Regalado, Kapunan and Mendoza, JJ., concurs in the result.

FIRST DIVISION

[G.R. No. 165424, April 16, 2008]

LESTER BENJAMIN S. HALILI, Petitioner, VS. CHONA M. SANTOS-HALILI AND

THE REPUBLIC OF THE PHILIPPINES,

R E S OLUTIO N
CORONA, J.:

This petition for review on certiorari under Rule 45 of the Rules of Court seeks to set aside the
January 26, 2004 decision[1] and September 24, 2004 resolution[2] of the Court of Appeals (CA) in
CA-G.R. CV No. 60010.

Petitioner Lester Benjamin S. Halili and respondent Chona M. Santos-Halili[3] were only 21 and
19 years of age, respectively, when they got married on July 4, 1995 at the City Hall of Manila.
After the wedding, they continued to live with their respective parents and never lived together
but maintained the relationship nonetheless.

A year after, the couple started bickering constantly. Petitioner stopped seeing respondent and
went on dates with other women. It was at this time that he started receiving prank calls telling
him to stop dating other women as he was already a married man.

Thereafter, petitioner filed in the Regional Trial Court (RTC) of Pasig City, Branch 158 a petition
for the declaration of nullity of the marriage on the ground that he was psychologically
incapacitated to fulfill his essential marital obligations to respondent.[4] He claimed that he
thought that the wedding performed at the City Hall of Manila was a "joke" and that the marriage
certificate he signed was "fake." He also pointed out that he and respondent never lived together
as husband and wife and never consummated the marriage.

The RTC granted the petition and declared petitioner psychologically incapacitated to fulfill the
essential marital obligations.

On appeal, the CA reversed and set aside the RTC decision and held that, taken in totality, the
evidence for petitioner failed to establish his psychological incapacity. Petitioner moved for
reconsideration. The same was denied. Hence, this petition.

The question before us is whether or not the totality of evidence presented is sufficient to prove
that petitioner suffered from psychological incapacity which effectively prevented him from
complying with his essential marital obligations.

We deny the petition.

Petitioner had the burden of proving the nullity of his marriage with respondent.[5] He failed to
discharge the burden.

The evidence for petitioner consisted of his own testimony and a psychological report written by
Dr. Natividad A. Dayan, Ph. D., a clinical psychologist, who also testified on the matters
contained therein.

According to Dr. Dayan, petitioner was suffering from a personality disorder characterized as "a
mixed personality disorder from self-defeating personality to dependent personality disorder
brought about by a dysfunctional family background." Petitioner's father was very abusive and
domineering. Although petitioner and his siblings were adequately supported by their father, a
very wealthy man, they lacked affirmation. Because of this, petitioner grew up without self-
confidence and very immature. He never really understood what it meant to have a family, much
less to be a husband. According to Dr. Dayan, this was very much evident in petitioner's
impulsive decision to get married despite having gone steady with respondent for only six
months.

Moreover, she added that both petitioner and respondent were psychologically incapacitated to
perform their essential marital obligations as they never lived together as husband and wife. They
also never consummated their marriage. Furthermore, they constantly fought. Their separation
was inevitable as they were both immature. Dr. Dayan then abruptly concluded that petitioner's
psychological incapacity was grave and incurable.

In this case, although petitioner was able to establish his immaturity, as evidenced by the
psychological report and as testified to by him and Dr. Dayan, the same hardly constituted
sufficient cause for declaring the marriage null and void on the ground of psychological
incapacity. It had to be characterized by gravity, juridical antecedence and incurability.[6]

In Republic v. CA and Molina,[7] we ruled that the psychological incapacity must be more than
just a "difficulty," a "refusal" or a "neglect" in the performance of some marital obligations. A
mere showing of irreconcilable differences and conflicting personalities does not equate to
psychological incapacity.[8] Proof of a natal or supervening disabling factor, an adverse integral
element in petitioner's personality structure that effectively incapacitated him from complying
with his essential marital obligations,[9] had to be shown. In this, petitioner failed.

The evidence adduced by petitioner merely showed that he and respondent had difficulty getting
along with each other as they constantly fought over petty things.[10] However, there was no
showing of the gravity and incurability of the psychological disorder supposedly inherent in
petitioner, except for the mere statement or conclusion to that effect in the psychological report.
The report, and even the testimonies given by petitioner and his expert witness at the trial,
dismally failed to prove that petitioner's alleged disorder was grave enough and incurable to
bring about his disability to assume the essential obligations of marriage.

Petitioner also made much of the fact that he and respondent never lived together as husband and
wife. This, however, fails to move us considering that there may be instances when, for
economic and practical reasons, a married couple might have to live separately though the
marital bond between them remains.[11] In fact, both parties were college students when they got
married and were obviously without the financial means to live on their own. Thus, their not
having lived together under one roof did not necessarily give rise to the conclusion that one of
them was psychologically incapacitated to comply with the essential marital obligations. It is
worth noting that petitioner himself admitted that he and respondent continued the relationship
after the marriage ceremony. It was only when they started fighting constantly a year later that he
decided to file a petition to have the marriage annulled. It appears that petitioner just chose to
give up on the marriage too soon and too easily.
WHEREFORE, the petition is hereby DENIED. The January 26, 2004 decision and September
24, 2004 resolution of the Court of Appeals in CA-G.R. CV No. 60010 are AFFIRMED.

THIRD DIVISION

EDWARD KENNETH NGO TE, G.R. No. 161793

Petitioner,

Present:

- versus - YNARES-SANTIAGO, J.,

Chairperson,

AUSTRIA-MARTINEZ,

ROWENA ONG GUTIERREZ YU- CHICO-NAZARIO,

TE,
NACHURA, and
Respondent,
PERALTA, JJ.

REPUBLIC OF THE PHILIPPINES,

Promulgated:
Oppositor.

February 13, 2009

x------------------------------------------------------------------------------------x
DECISION

NACHURA, J.:

Far from novel is the issue involved in this petition. Psychological incapacity, since its
incorporation in our laws, has become a clichd subject of discussion in our jurisprudence. The
Court treats this case, however, with much ado, it having realized that current jurisprudential
doctrine has unnecessarily imposed a perspective by which psychological incapacity should be
viewed, totally inconsistent with the way the concept was formulatedfree in form and devoid
of any definition.

For the resolution of the Court is a petition for review on certiorari under Rule 45 of the
Rules of Court assailing the August 5, 2003 Decision of the Court of Appeals (CA) in CA-G.R.
CV No. 71867. The petition further assails the January 19, 2004 Resolution denying the motion
for the reconsideration of the challenged decision.

The relevant facts and proceedings follow.

Petitioner Edward Kenneth Ngo Te first got a glimpse of respondent Rowena Ong
Gutierrez Yu-Te in a gathering organized by the Filipino-Chinese association in their college.
Edward was then initially attracted to Rowenas close friend; but, as the latter already had a
boyfriend, the young man decided to court Rowena. That was in January 1996, when petitioner
was a sophomore student and respondent, a freshman.

Sharing similar angst towards their families, the two understood one another and
developed a certain degree of closeness towards each other. In March 1996, or around three
months after their first meeting, Rowena asked Edward that they elope. At first, he refused,
bickering that he was young and jobless. Her persistence, however, made him relent. Thus, they
left Manila and sailed to Cebu that month; he, providing their travel money and she, purchasing
the boat ticket.

However, Edwards P80,000.00 lasted for only a month. Their pension house
accommodation and daily sustenance fast depleted it. And they could not find a job. In April
1996, they decided to go back to Manila. Rowena proceeded to her uncles house and Edward to
his parents home. As his family was abroad, and Rowena kept on telephoning him, threatening
him that she would commit suicide, Edward agreed to stay with Rowena at her uncles place.

On April 23, 1996, Rowenas uncle brought the two to a court to get married. He was
then 25 years old, and she, 20. The two then continued to stay at her uncles place where Edward
was treated like a prisonerhe was not allowed to go out unaccompanied. Her uncle also
showed Edward his guns and warned the latter not to leave Rowena. At one point, Edward was
able to call home and talk to his brother who suggested that they should stay at their parents
home and live with them. Edward relayed this to Rowena who, however, suggested that he
should get his inheritance so that they could live on their own. Edward talked to his father about
this, but the patriarch got mad, told Edward that he would be disinherited, and insisted that
Edward must go home.
 After a month, Edward escaped from the house of Rowenas uncle, and stayed with his
parents. His family then hid him from Rowena and her family whenever they telephoned to ask
for him.

In June 1996, Edward was able to talk to Rowena. Unmoved by his persistence that they
should live with his parents, she said that it was better for them to live separate lives. They then
parted ways.

After almost four years, or on January 18, 2000, Edward filed a petition before the
Regional Trial Court (RTC) of Quezon City, Branch 106, for the annulment of his marriage to
Rowena on the basis of the latters psychological incapacity. This was docketed as Civil Case
No. Q-00-39720.

As Rowena did not file an answer, the trial court, on July 11, 2000, ordered the Office of
the City Prosecutor (OCP) of Quezon City to investigate whether there was collusion between
the parties. In the meantime, on July 27, 2000, the Office of the Solicitor General (OSG) entered
its appearance and deputized the OCP to appear on its behalf and assist it in the scheduled
hearings.

On August 23, 2000, the OCP submitted an investigation report stating that it could not
determine if there was collusion between the parties; thus, it recommended trial on the merits.
 The clinical psychologist who examined petitioner found both parties psychologically
incapacitated, and made the following findings and conclusions:

BACKGROUND DATA & BRIEF MARITAL HISTORY:

EDWARD KENNETH NGO TE is a [29-year-old] Filipino male adult

born and baptized Born Again Christian at Manila. He finished two years in
college at AMA Computer College last 1994 and is currently unemployed. He is
married to and separated from ROWENA GUTIERREZ YU-TE. He presented
himself at my office for a psychological evaluation in relation to his petition for
Nullification of Marriage against the latter by the grounds of psychological
incapacity. He is now residing at 181 P. Tuazon Street, Quezon City.

Petitioner got himself three siblings who are now in business and one
deceased sister. Both his parents are also in the business world by whom he
[considers] as generous, hospitable, and patient. This said virtues are said to be
handed to each of the family member. He generally considers himself to be quiet
and simple. He clearly remembers himself to be afraid of meeting people. After
1994, he tried his luck in being a Sales Executive of Mansfield International
Incorporated. And because of job incompetence, as well as being quiet and loner,
he did not stay long in the job until 1996. His interest lie[s] on becoming a full
servant of God by being a priest or a pastor. He [is] said to isolate himself from
his friends even during his childhood days as he only loves to read the Bible and
hear its message.

Respondent is said to come from a fine family despite having a lazy father
and a disobedient wife. She is said to have not finish[ed] her collegiate degree
and shared intimate sexual moments with her boyfriend prior to that with
petitioner.

In January of 1996, respondent showed her kindness to petitioner and this

became the foundation of their intimate relationship. After a month of dating,
petitioner mentioned to respondent that he is having problems with his family.
Respondent surprisingly retorted that she also hates her family and that she
actually wanted to get out of their lives. From that [time on], respondent had
insisted to petitioner that they should elope and live together. Petitioner hesitated
because he is not prepared as they are both young and inexperienced, but she
insisted that they would somehow manage because petitioner is rich. In the last
week of March 1996, respondent seriously brought the idea of eloping and she
already bought tickets for the boat going to Cebu. Petitioner reluctantly agreed to
the idea and so they eloped to Cebu. The parties are supposed to stay at the house
of a friend of respondent, but they were not able to locate her, so petitioner was
compelled to rent an apartment. The parties tried to look for a job but could not
find any so it was suggested by respondent that they should go back and seek help
from petitioners parents. When the parties arrived at the house of petitioner, all
of his whole family was all out of the country so respondent decided to go back to
her home for the meantime while petitioner stayed behind at their home. After a
few days of separation, respondent called petitioner by phone and said she wanted
to talk to him. Petitioner responded immediately and when he arrived at their
house, respondent confronted petitioner as to why he appeared to be cold,
respondent acted irrationally and even threatened to commit suicide. Petitioner
got scared so he went home again. Respondent would call by phone every now
and then and became angry as petitioner does not know what to do. Respondent
went to the extent of threatening to file a case against petitioner and scandalize his
family in the newspaper. Petitioner asked her how he would be able to make
amends and at this point in time[,] respondent brought the idea of marriage.
Petitioner[,] out of frustration in life[,] agreed to her to pacify her. And so on
April 23, 1996, respondents uncle brought the parties to Valenzuela[,] and on that
very same day[,] petitioner was made to sign the Marriage Contract before the
Judge. Petitioner actually never applied for any Marriage License.

Respondent decided that they should stay first at their house until after
arrival of the parents of petitioner. But when the parents of petitioner arrived,
respondent refused to allow petitioner to go home. Petitioner was threatened in so
many ways with her uncle showing to him many guns. Respondent even
threatened that if he should persist in going home, they will commission their
military friends to harm his family. Respondent even made petitioner sign a
declaration that if he should perish, the authorities should look for him at his
parents[ ]and relatives[ ]houses. Sometime in June of 1996, petitioner was able to
escape and he went home. He told his parents about his predicament and they
forgave him and supported him by giving him military escort. Petitioner,
however, did not inform them that he signed a marriage contract with respondent.
When they knew about it[,] petitioner was referred for counseling. Petitioner[,]
after the counseling[,] tried to contact respondent. Petitioner offered her to live
instead to[sic] the home of petitioners parents while they are still studying.
Respondent refused the idea and claimed that she would only live with him if they
will have a separate home of their own and be away from his parents. She also
intimated to petitioner that he should already get his share of whatever he would
inherit from his parents so they can start a new life. Respondent demanded these
not knowing [that] the petitioner already settled his differences with his own
family. When respondent refused to live with petitioner where he chose for them
to stay, petitioner decided to tell her to stop harassing the home of his parents.
He told her already that he was disinherited and since he also does not have a job,
he would not be able to support her. After knowing that petitioner does not have
any money anymore, respondent stopped tormenting petitioner and informed
petitioner that they should live separate lives.

The said relationship between Edward and Rowena is said to be

undoubtedly in the wreck and weakly-founded. The break-up was caused by both
parties[] unreadiness to commitment and their young age. He was still in the
state of finding his fate and fighting boredom, while she was still egocentrically
involved with herself.

TESTS ADMINISTERED:

Revised Beta Examination

Bender Visual Motor Gestalt Test
Draw A Person Test
Rorschach Psychodiagnostic Test
Sachs Sentence Completion Test
MMPI

TEST RESULTS & EVALUATION:

Both petitioner and respondent are dubbed to be emotionally immature

and recklessly impulsive upon swearing to their marital vows as each of them was
motivated by different notions on marriage.

Edward Kenneth Ngo Te, the petitioner in this case[,] is said to be still
unsure and unready so as to commit himself to marriage. He is still founded to be
on the search of what he wants in life. He is absconded as an introvert as he is not
really sociable and displays a lack of interest in social interactions and mingling
with other individuals. He is seen too akin to this kind of lifestyle that he finds it
boring and uninteresting to commit himself to a relationship especially to that of
respondent, as aggravated by her dangerously aggressive moves. As he is more of
the reserved and timid type of person, as he prefer to be religiously attached and
spend a solemn time alone.

ROWENA GUTIERREZ YU-TE, the respondent, is said to be of the

aggressive-rebellious type of woman. She is seen to be somewhat exploitative in
her [plight] for a life of wealth and glamour. She is seen to take move on
marriage as she thought that her marriage with petitioner will bring her good
fortune because he is part of a rich family. In order to have her dreams realized,
she used force and threats knowing that [her] husband is somehow weak-willed.
Upon the realization that there is really no chance for wealth, she gladly finds her
way out of the relationship.

REMARKS:

Before going to marriage, one should really get to know himself and
marry himself before submitting to marital vows. Marriage should not be taken
out of intuition as it is profoundly a serious institution solemnized by religious
 and law. In the case presented by petitioner and respondent[,] (sic) it is evidently
clear that both parties have impulsively taken marriage for granted as they are still
unaware of their own selves. He is extremely introvert to the point of weakening
their relationship by his weak behavioral disposition. She, on the other hand[,] is
extremely exploitative and aggressive so as to be unlawful, insincere and
undoubtedly uncaring in her strides toward convenience. It is apparent that she is
suffering the grave, severe, and incurable presence of Narcissistic and Antisocial
Personality Disorder that started since childhood and only manifested during
marriage. Both parties display psychological incapacities that made marriage a
big mistake for them to take.

The trial court, on July 30, 2001, rendered its Decision declaring the marriage of the
parties null and void on the ground that both parties were psychologically incapacitated to
comply with the essential marital obligations. The Republic, represented by the OSG, timely
filed its notice of appeal.

On review, the appellate court, in the assailed August 5, 2003 Decision in CA-G.R. CV
No. 71867, reversed and set aside the trial courts ruling. It ruled that petitioner failed to prove
the psychological incapacity of respondent. The clinical psychologist did not personally examine
respondent, and relied only on the information provided by petitioner. Further, the psychological
incapacity was not shown to be attended by gravity, juridical antecedence and incurability. In
sum, the evidence adduced fell short of the requirements stated in Republic v. Court of Appeals
and Molina needed for the declaration of nullity of the marriage under Article 36 of the Family
Code. The CA faulted the lower court for rendering the decision without the required
certification of the OSG briefly stating therein the OSGs reasons for its agreement with or
opposition to, as the case may be, the petition. The CA later denied petitioners motion for
reconsideration in the likewise assailed January 19, 2004 Resolution.

Dissatisfied, petitioner filed before this Court the instant petition for review on certiorari.
On June 15, 2005, the Court gave due course to the petition and required the parties to submit
their respective memoranda.
 In his memorandum, petitioner argues that the CA erred in substituting its own judgment
for that of the trial court. He posits that the RTC declared the marriage void, not only because of
respondents psychological incapacity, but rather due to both parties psychological incapacity.
Petitioner also points out that there is no requirement for the psychologist to personally examine
respondent. Further, he avers that the OSG is bound by the actions of the OCP because the latter
represented it during the trial; and it had been furnished copies of all the pleadings, the trial court
orders and notices.

For its part, the OSG contends in its memorandum, that the annulment petition filed
before the RTC contains no statement of the essential marital obligations that the parties failed to
comply with. The root cause of the psychological incapacity was likewise not alleged in the
petition; neither was it medically or clinically identified. The purported incapacity of both parties
was not shown to be medically or clinically permanent or incurable. And the clinical
psychologist did not personally examine the respondent. Thus, the OSG concludes that the
requirements in Molina were not satisfied.

The Court now resolves the singular issue of whether, based on Article 36 of the Family
Code, the marriage between the parties is null and void.

I.

We begin by examining the provision, tracing its origin and charting the development of
jurisprudence interpreting it.

Article 36 of the Family Code provides:

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

As borne out by the deliberations of the Civil Code Revision Committee that drafted the
Family Code, Article 36 was based on grounds available in the Canon Law. Thus, Justice Flerida
Ruth P. Romero elucidated in her separate opinion in Santos v. Court of Appeals:

However, as a member of both the Family Law Revision Committee of the

Integrated Bar of the Philippines and the Civil Code Revision Commission of the
UP Law Center, I wish to add some observations. The letter dated April 15, 1985
of then Judge Alicia V. Sempio-Diy written in behalf of the Family Law and Civil
Code Revision Committee to then Assemblywoman Mercedes Cojuangco-
Teodoro traced the background of the inclusion of the present Article 36 in the
Family Code.

During its early meetings, the Family Law Committee had

thought of including a chapter on absolute divorce in the draft of a
new Family Code (Book I of the Civil Code) that it had been
tasked by the IBP and the UP Law Center to prepare. In fact, some
members of the Committee were in favor of a no-fault divorce
between the spouses after a number of years of separation, legal or
de facto. Justice J.B.L. Reyes was then requested to prepare a
proposal for an action for dissolution of marriage and the effects
thereof based on two grounds: (a) five continuous years of
separation between the spouses, with or without a judicial decree
of legal separation, and (b) whenever a married person would have
obtained a decree of absolute divorce in another country. Actually,
such a proposal is one for absolute divorce but called by another
name. Later, even the Civil Code Revision Committee took time to
discuss the proposal of Justice Reyes on this matter.

Subsequently, however, when the Civil Code Revision

Committee and Family Law Committee started holding joint
meetings on the preparation of the draft of the New Family Code,
they agreed and formulated the definition of marriage as
 a special contract of permanent partnership
between a man and a woman entered into in
accordance with law for the establishment of
conjugal and family life. It is an inviolable social
institution whose nature, consequences, and
incidents are governed by law and not subject to
stipulation, except that marriage settlements may fix
the property relations during the marriage within the
limits provided by law.

With the above definition, and considering the Christian

traditional concept of marriage of the Filipino people as a
permanent, inviolable, indissoluble social institution upon which
the family and society are founded, and also realizing the strong
opposition that any provision on absolute divorce would encounter
from the Catholic Church and the Catholic sector of our citizenry
to whom the great majority of our people belong, the two
Committees in their joint meetings did not pursue the idea of
absolute divorce and, instead, opted for an action for judicial
declaration of invalidity of marriage based on grounds available
in the Canon Law. It was thought that such an action would not
only be an acceptable alternative to divorce but would also solve
the nagging problem of church annulments of marriages on
grounds not recognized by the civil law of the State. Justice Reyes
was, thus, requested to again prepare a draft of provisions on such
action for celebration of invalidity of marriage. Still later, to avoid
the overlapping of provisions on void marriages as found in the
present Civil Code and those proposed by Justice Reyes on judicial
declaration of invalidity of marriage on grounds similar to the
Canon Law, the two Committees now working as a Joint
Committee in the preparation of a New Family Code decided to
consolidate the present provisions on void marriages with the
proposals of Justice Reyes. The result was the inclusion of an
additional kind of void marriage in the enumeration of void
marriages in the present Civil Code, to wit:

(7) those marriages contracted by any party

who, at the time of the celebration, was wanting in
the sufficient use of reason or judgment to
understand the essential nature of marriage or was
psychologically or mentally incapacitated to
discharge the essential marital obligations, even if
such lack or incapacity is made manifest after the
celebration.
 as well as the following implementing provisions:

Art. 32. The absolute nullity of a marriage

may be invoked or pleaded only on the basis of a
final judgment declaring the marriage void, without
prejudice to the provision of Article 34.

Art. 33. The action or defense for the

declaration of the absolute nullity of a marriage
shall not prescribe.

xxx xxx xxx

It is believed that many hopelessly broken marriages in our country today may
already be dissolved or annulled on the grounds proposed by the Joint Committee
on declaration of nullity as well as annulment of marriages, thus rendering an
absolute divorce law unnecessary. In fact, during a conference with Father Gerald
Healy of the Ateneo University, as well as another meeting with Archbishop
Oscar Cruz of the Archdiocese of Pampanga, the Joint Committee was informed
that since Vatican II, the Catholic Church has been declaring marriages null and
void on the ground of lack of due discretion for causes that, in other
jurisdictions, would be clear grounds for divorce, like teen-age or premature
marriages; marriage to a man who, because of some personality disorder or
disturbance, cannot support a family; the foolish or ridiculous choice of a spouse
by an otherwise perfectly normal person; marriage to a woman who refuses to
cohabit with her husband or who refuses to have children. Bishop Cruz also
informed the Committee that they have found out in tribunal work that a lot of
machismo among husbands are manifestations of their sociopathic personality
anomaly, like inflicting physical violence upon their wives, constitutional
indolence or laziness, drug dependence or addiction, and psychosexual anomaly.

In her separate opinion in Molina, she expounded:

At the Committee meeting of July 26, 1986, the draft provision read:

(7) Those marriages contracted by any party who, at the time of the
celebration, was wanting in the sufficient use of reason or judgment to understand
the essential nature of marriage or was psychologically or mentally incapacitated
to discharge the essential marital obligations, even if such lack of incapacity is
made manifest after the celebration.
 The twists and turns which the ensuing discussion took finally produced
the following revised provision even before the session was over:

(7) That contracted by any party who, at the time of the celebration,
was psychologically incapacitated to discharge the essential marital obligations,
even if such lack or incapacity becomes manifest after the celebration.

Noticeably, the immediately preceding formulation above has dropped any

reference to wanting in the sufficient use of reason or judgment to understand the
essential nature of marriage and to mentally incapacitated. It was explained
that these phrases refer to defects in the mental faculties vitiating consent, which
is not the idea . . . but lack of appreciation of one's marital obligation. There
being a defect in consent, it is clear that it should be a ground for voidable
marriage because there is the appearance of consent and it is capable of
convalidation for the simple reason that there are lucid intervals and there are
cases when the insanity is curable . . . Psychological incapacity does not refer to
mental faculties and has nothing to do with consent; it refers to obligations
attendant to marriage.

My own position as a member of the Committee then was that

psychological incapacity is, in a sense, insanity of a lesser degree.

As to the proposal of Justice Caguioa to use the term psychological or

mental impotence, Archbishop Oscar Cruz opined in the earlier February 9, 1984
session that this term is an invention of some churchmen who are moralists but
not canonists, that is why it is considered a weak phrase. He said that the Code of
Canon Law would rather express it as psychological or mental incapacity to
discharge . . . Justice Ricardo C. Puno opined that sometimes a person may be
psychologically impotent with one but not with another.

One of the guidelines enumerated in the majority opinion for the

interpretation and application of Art. 36 is: Such incapacity must also be shown
to be medically or clinically permanent or incurable. Such incurability may be
absolute or even relative only in regard to the other spouse, not necessarily
absolutely against everyone of the same sex.

The Committee, through Prof. Araceli T. Barrera, considered the inclusion

of the phrase and is incurable but Prof. Esteban B. Bautista commented that this
would give rise to the question of how they will determine curability and Justice
Caguioa agreed that it would be more problematic. Yet, the possibility that one
may be cured after the psychological incapacity becomes manifest after the
marriage was not ruled out by Justice Puno and Justice Alice Sempio-Diy. Justice
Caguioa suggested that the remedy was to allow the afflicted spouse to remarry.

For clarity, the Committee classified the bases for determining void
marriages, viz.:
 1. lack of one or more of the essential requisites of marriage as
contract;
2. reasons of public policy;
3. special cases and special situations.

The ground of psychological incapacity was subsumed under special cases and
special situations, hence, its special treatment in Art. 36 in the Family Code as
finally enacted.

Nowhere in the Civil Code provisions on Marriage is there a ground for

avoiding or annulling marriages that even comes close to being psychological in
nature.

Where consent is vitiated due to circumstances existing at the time of the

marriage, such marriage which stands valid until annulled is capable of
ratification or convalidation.

On the other hand, for reasons of public policy or lack of essential

requisites, some marriages are void from the beginning.

With the revision of Book I of the Civil Code, particularly the provisions
on Marriage, the drafters, now open to fresh winds of change in keeping with the
more permissive mores and practices of the time, took a leaf from the relatively
liberal provisions of Canon Law.

Canon 1095 which states, inter alia, that the following persons are
incapable of contracting marriage: 3. (those) who, because of causes of a
psychological nature, are unable to assume the essential obligations of marriage
provided the model for what is now Art. 36 of the Family Code: A marriage
contracted by any party who, at the time of the celebration, was psychologically
incapacitated to comply with the essential marital obligations of marriage, shall
likewise be void even if such incapacity becomes manifest only after its
solemnization.

It bears stressing that unlike in Civil Law, Canon Law recognizes only two
types of marriages with respect to their validity: valid and void. Civil Law,
however, recognizes an intermediate state, the voidable or annullable marriages.
When the Ecclesiastical Tribunal annuls a marriage, it actually declares the
marriage null and void, i.e., it never really existed in the first place, for a valid
sacramental marriage can never be dissolved. Hence, a properly performed and
consummated marriage between two living Roman Catholics can only be nullified
by the formal annulment process which entails a full tribunal procedure with a
Court selection and a formal hearing.
 Such so-called church annulments are not recognized by Civil Law as
severing the marriage ties as to capacitate the parties to enter lawfully into another
marriage. The grounds for nullifying civil marriage, not being congruent with
those laid down by Canon Law, the former being more strict, quite a number of
married couples have found themselves in limbofreed from the marriage bonds
in the eyes of the Catholic Church but yet unable to contract a valid civil marriage
under state laws. Heedless of civil law sanctions, some persons contract new
marriages or enter into live-in relationships.

It was precisely to provide a satisfactory solution to such anomalous

situations that the Civil Law Revision Committee decided to engraft the Canon
Law concept of psychological incapacity into the Family Codeand classified
the same as a ground for declaring marriages void ab initio or totally inexistent
from the beginning.

A brief historical note on the Old Canon Law (1917). This Old Code,
while it did not provide directly for psychological incapacity, in effect, recognized
the same indirectly from a combination of three old canons: Canon #1081
required persons to be capable according to law in order to give valid consent;
Canon #1082 required that persons be at least not ignorant of the major elements
required in marriage; and Canon #1087 (the force and fear category) required that
internal and external freedom be present in order for consent to be valid. This line
of interpretation produced two distinct but related grounds for annulment called
lack of due discretion and lack of due competence. Lack of due discretion
means that the person did not have the ability to give valid consent at the time of
the wedding and, therefore, the union is invalid. Lack of due competence means
that the person was incapable of carrying out the obligations of the promise he or
she made during the wedding ceremony.

Favorable annulment decisions by the Roman Rota in the 1950s and 1960s
involving sexual disorders such as homosexuality and nymphomania laid the
foundation for a broader approach to the kind of proof necessary for
psychological grounds for annulment. The Rota had reasoned for the first time in
several cases that the capacity to give valid consent at the time of marriage was
probably not present in persons who had displayed such problems shortly after the
marriage. The nature of this change was nothing short of revolutionary. Once the
Rota itself had demonstrated a cautious willingness to use this kind of hindsight,
the way was paved for what came after 1970. Diocesan Tribunals began to accept
proof of serious psychological problems that manifested themselves shortly after
the ceremony as proof of an inability to give valid consent at the time of the
ceremony.

Interestingly, the Committee did not give any examples of psychological incapacity for
fear that by so doing, it might limit the applicability of the provision under the principle of
ejusdem generis. The Committee desired that the courts should interpret the provision on a case-
to-case basis; guided by experience, the findings of experts and researchers in psychological
disciplines, and by decisions of church tribunals which, although not binding on the civil courts,
may be given persuasive effect since the provision itself was taken from the Canon Law. The
law is then so designed as to allow some resiliency in its application.

Yet, as held in Santos, the phrase psychological incapacity is not meant to comprehend
all possible cases of psychoses. It refers to no less than a mental (not physical) incapacity that
causes a party to be truly noncognitive of the basic marital covenants that concomitantly must be
assumed and discharged by the parties to the marriage which, as expressed by Article 68 of the
Family Code, include their mutual obligations to live together, observe love, respect and fidelity;
and render help and support. The intendment of the law has been to confine it to the most
serious of cases of personality disorders clearly demonstrative of an utter insensitivity or
inability to give meaning and significance to the marriage. This interpretation is, in fact,
consistent with that in Canon Law, thus:

3.5.3.1. The Meaning of Incapacity to Assume. A sharp conceptual distinction

must be made between the second and third paragraphs of C.1095, namely
between the grave lack of discretionary judgment and the incapacity to assume the
essential obligation. Mario Pompedda, a rotal judge, explains the difference by an
ordinary, if somewhat banal, example. Jose wishes to sell a house to Carmela,
and on the assumption that they are capable according to positive law to enter
such contract, there remains the object of the contract, viz, the house. The house
is located in a different locality, and prior to the conclusion of the contract, the
house was gutted down by fire unbeknown to both of them. This is the hypothesis
contemplated by the third paragraph of the canon. The third paragraph does not
deal with the psychological process of giving consent because it has been
established a priori that both have such a capacity to give consent, and they both
know well the object of their consent [the house and its particulars]. Rather,
C.1095.3 deals with the object of the consent/contract which does not exist. The
contract is invalid because it lacks its formal object. The consent as a
psychological act is both valid and sufficient. The psychological act, however, is
directed towards an object which is not available. Urbano Navarrete summarizes
this distinction: the third paragraph deals not with the positing of consent but with
positing the object of consent. The person may be capable of positing a free act of
consent, but he is not capable of fulfilling the responsibilities he assumes as a
result of the consent he elicits.

Since the address of Pius XII to the auditors of the Roman Rota in 1941 regarding
psychic incapacity with respect to marriage arising from pathological conditions,
there has been an increasing trend to understand as ground of nullity different
from others, the incapacity to assume the essential obligations of marriage,
especially the incapacity which arises from sexual anomalies. Nymphomania is a
sample which ecclesiastical jurisprudence has studied under this rubric.

The problem as treated can be summarized, thus: do sexual anomalies always and
in every case imply a grave psychopathological condition which affects the higher
faculties of intellect, discernment, and freedom; or are there sexual anomalies that
are purely so that is to say, they arise from certain physiological dysfunction of
the hormonal system, and they affect the sexual condition, leaving intact the
higher faculties however, so that these persons are still capable of free human
acts. The evidence from the empirical sciences is abundant that there are certain
anomalies of a sexual nature which may impel a person towards sexual activities
which are not normal, either with respect to its frequency [nymphomania,
satyriasis] or to the nature of the activity itself [sadism, masochism,
homosexuality]. However, these anomalies notwithstanding, it is altogether
possible that the higher faculties remain intact such that a person so afflicted
continues to have an adequate understanding of what marriage is and of the
gravity of its responsibilities. In fact, he can choose marriage freely. The
question though is whether such a person can assume those responsibilities which
he cannot fulfill, although he may be able to understand them. In this latter
hypothesis, the incapacity to assume the essential obligations of marriage issues
from the incapacity to posit the object of consent, rather than the incapacity to
posit consent itself.

Ecclesiastical jurisprudence has been hesitant, if not actually confused, in this

regard. The initial steps taken by church courts were not too clear whether this
incapacity is incapacity to posit consent or incapacity to posit the object of
consent. A case c. Pinna, for example, arrives at the conclusion that the intellect,
under such an irresistible impulse, is prevented from properly deliberating and its
judgment lacks freedom. This line of reasoning supposes that the intellect, at the
moment of consent, is under the influence of this irresistible compulsion, with the
inevitable conclusion that such a decision, made as it was under these
circumstances, lacks the necessary freedom. It would be incontrovertible that a
decision made under duress, such as this irresistible impulse, would not be a free
act. But this is precisely the question: is it, as a matter of fact, true that the
intellect is always and continuously under such an irresistible compulsion? It
would seem entirely possible, and certainly more reasonable, to think that there
are certain cases in which one who is sexually hyperaesthetic can understand
perfectly and evaluate quite maturely what marriage is and what it implies; his
consent would be juridically ineffective for this one reason that he cannot posit
the object of consent, the exclusive jus in corpus to be exercised in a normal way
and with usually regularity. It would seem more correct to say that the consent
may indeed be free, but is juridically ineffective because the party is consenting to
an object that he cannot deliver. The house he is selling was gutted down by fire.

3.5.3.2. Incapacity as an Autonomous Ground. Sabattani seems to have seen

his way more clearly through this tangled mess, proposing as he did a clear
conceptual distinction between the inability to give consent on the one hand, and
the inability to fulfill the object of consent, on the other. It is his opinion that
nymphomaniacs usually understand the meaning of marriage, and they are usually
able to evaluate its implications. They would have no difficulty with positing a
free and intelligent consent. However, such persons, capable as they are of
eliciting an intelligent and free consent, experience difficulty in another sphere:
delivering the object of the consent. Anne, another rotal judge, had likewise
treated the difference between the act of consenting and the act of positing the
object of consent from the point of view of a person afflicted with nymphomania.
According to him, such an affliction usually leaves the process of knowing and
understanding and evaluating intact. What it affects is the object of consent: the
delivering of the goods.

3.5.3.3 Incapacity as Incapacity to Posit the Object of Consent. From the

selected rotal jurisprudence cited, supra, it is possible to see a certain progress
towards a consensus doctrine that the incapacity to assume the essential
obligations of marriage (that is to say, the formal object of consent) can coexist in
the same person with the ability to make a free decision, an intelligent judgment,
and a mature evaluation and weighing of things. The decision coram Sabattani
concerning a nymphomaniac affirmed that such a spouse can have difficulty not
only with regard to the moment of consent but also, and especially, with regard to
the matrimonium in facto esse. The decision concludes that a person in such a
condition is incapable of assuming the conjugal obligation of fidelity, although
she may have no difficulty in understanding what the obligations of marriage are,
nor in the weighing and evaluating of those same obligations.

Prior to the promulgation of the Code of Canon Law in 1983, it was not unusual
to refer to this ground as moral impotence or psychic impotence, or similar
expressions to express a specific incapacity rooted in some anomalies and
disorders in the personality. These anomalies leave intact the faculties of the will
and the intellect. It is qualified as moral or psychic, obviously to distinguish it
from the impotence that constitutes the impediment dealt with by C.1084.
Nonetheless, the anomalies render the subject incapable of binding himself in a
valid matrimonial pact, to the extent that the anomaly renders that person
incapable of fulfilling the essential obligations. According to the principle
affirmed by the long tradition of moral theology: nemo ad impossibile tenetur.

xxxx
3.5.3.5 Indications of Incapacity. There is incapacity when either or both of the
contractants are not capable of initiating or maintaining this consortium. One
immediately thinks of those cases where one of the parties is so self-centered
[e.g., a narcissistic personality] that he does not even know how to begin a union
with the other, let alone how to maintain and sustain such a relationship. A
second incapacity could be due to the fact that the spouses are incapable of
beginning or maintaining a heterosexual consortium, which goes to the very
substance of matrimony. Another incapacity could arise when a spouse is unable
to concretize the good of himself or of the other party. The canon speaks, not of
the bonum partium, but of the bonum conjugum. A spouse who is capable only of
realizing or contributing to the good of the other party qua persona rather than
qua conjunx would be deemed incapable of contracting marriage. Such would be
the case of a person who may be quite capable of procuring the economic good
and the financial security of the other, but not capable of realizing the bonum
conjugale of the other. These are general strokes and this is not the place for
detained and individual description.

A rotal decision c. Pinto resolved a petition where the concrete circumstances of

the case concerns a person diagnosed to be suffering from serious sociopathy. He
concluded that while the respondent may have understood, on the level of the
intellect, the essential obligations of marriage, he was not capable of assuming
them because of his constitutional immorality.

Stankiewicz clarifies that the maturity and capacity of the person as regards the
fulfillment of responsibilities is determined not only at the moment of decision
but also and especially during the moment of execution of decision. And when
this is applied to constitution of the marital consent, it means that the actual
fulfillment of the essential obligations of marriage is a pertinent consideration that
must be factored into the question of whether a person was in a position to assume
the obligations of marriage in the first place. When one speaks of the inability of
the party to assume and fulfill the obligations, one is not looking at matrimonium
in fieri, but also and especially at matrimonium in facto esse. In [the] decision of
19 Dec. 1985, Stankiewicz collocated the incapacity of the respondent to assume
the essential obligations of marriage in the psychic constitution of the person,
precisely on the basis of his irresponsibility as regards money and his apathy as
regards the rights of others that he had violated. Interpersonal relationships are
invariably disturbed in the presence of this personality disorder. A lack of
empathy (inability to recognize and experience how others feel) is common. A
sense of entitlement, unreasonable expectation, especially favorable treatment, is
usually present. Likewise common is interpersonal exploitativeness, in which
others are taken advantage of in order to achieve ones ends.

Authors have made listings of obligations considered as essential matrimonial

obligations. One of them is the right to the communio vitae. This and their
corresponding obligations are basically centered around the good of the spouses
and of the children. Serious psychic anomalies, which do not have to be
necessarily incurable, may give rise to the incapacity to assume any, or several, or
even all of these rights. There are some cases in which interpersonal relationship
is impossible. Some characteristic features of inability for interpersonal
relationships in marriage include affective immaturity, narcissism, and antisocial
traits.

Marriage and Homosexuality. Until 1967, it was not very clear under what rubric
homosexuality was understood to be invalidating of marriage that is to say, is
homosexuality invalidating because of the inability to evaluate the responsibilities
of marriage, or because of the inability to fulfill its obligations. Progressively,
however, rotal jurisprudence began to understand it as incapacity to assume the
obligations of marriage so that by 1978, Parisella was able to consider, with
charity, homosexuality as an autonomous ground of nullity. This is to say that a
person so afflicted is said to be unable to assume the essential obligations of
marriage. In this same rotal decision, the object of matrimonial consent is
understood to refer not only to the jus in corpus but also the consortium totius
vitae. The third paragraph of C.1095 [incapacity to assume the essential
obligations of marriage] certainly seems to be the more adequate juridical
structure to account for the complex phenomenon that homosexuality is. The
homosexual is not necessarily impotent because, except in very few exceptional
cases, such a person is usually capable of full sexual relations with the spouse.
Neither is it a mental infirmity, and a person so afflicted does not necessarily
suffer from a grave lack of due discretion because this sexual anomaly does not
by itself affect the critical, volitive, and intellectual faculties. Rather, the
homosexual person is unable to assume the responsibilities of marriage because
he is unable to fulfill this object of the matrimonial contract. In other words, the
invalidity lies, not so much in the defect of consent, as in the defect of the object
of consent.

3.5.3.6 Causes of Incapacity. A last point that needs to be addressed is the

source of incapacity specified by the canon: causes of a psychological nature.
Pompedda proffers the opinion that the clause is a reference to the personality of
the contractant. In other words, there must be a reference to the psychic part of
the person. It is only when there is something in the psyche or in the psychic
constitution of the person which impedes his capacity that one can then affirm that
the person is incapable according to the hypothesis contemplated by C.1095.3. A
person is judged incapable in this juridical sense only to the extent that he is
found to have something rooted in his psychic constitution which impedes the
assumption of these obligations. A bad habit deeply engrained in ones
consciousness would not seem to qualify to be a source of this invalidating
incapacity. The difference being that there seems to be some freedom, however
remote, in the development of the habit, while one accepts as given ones psychic
constitution. It would seem then that the law insists that the source of the
incapacity must be one which is not the fruit of some degree of freedom.
 Conscious of the laws intention that it is the courts, on a case-to-case basis, that should
determine whether a party to a marriage is psychologically incapacitated, the Court, in sustaining
the lower courts judgment of annulment in Tuason v. Court of Appeals, ruled that the findings of
the trial court are final and binding on the appellate courts.

Again, upholding the trial courts findings and declaring that its decision was not a
judgment on the pleadings, the Court, in Tsoi v. Court of Appeals, explained that when private
respondent testified under oath before the lower court and was cross-examined by the adverse
party, she thereby presented evidence in the form of testimony. Importantly, the Court, aware of
parallel decisions of Catholic marriage tribunals, ruled that the senseless and protracted refusal of
one of the parties to fulfill the marital obligation of procreating children is equivalent to
psychological incapacity.

The resiliency with which the concept should be applied and the case-to-case basis by
which the provision should be interpreted, as so intended by its framers, had, somehow, been
rendered ineffectual by the imposition of a set of strict standards in Molina, thus:

From their submissions and the Court's own deliberations, the following
guidelines in the interpretation and application of Art. 36 of the Family Code are
hereby handed down for the guidance of the bench and the bar:

(1) The burden of proof to show the nullity of the marriage

belongs to the plaintiff. Any doubt should be resolved in favor of the existence
and continuation of the marriage and against its dissolution and nullity. This is
rooted in the fact that both our Constitution and our laws cherish the validity of
marriage and unity of the family. Thus, our Constitution devotes an entire Article
on the Family, recognizing it as the foundation of the nation. It decrees
marriage as legally inviolable, thereby protecting it from dissolution at the
whim of the parties. Both the family and marriage are to be protected by the
state.
 The Family Code echoes this constitutional edict on marriage and the
family and emphasizes their permanence, inviolability and solidarity.

(2) The root cause of the psychological incapacity must be (a)

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

(3) The incapacity must be proven to be existing at the time of the

celebration of the marriage. The evidence must show that the illness was existing
when the parties exchanged their I do's. The manifestation of the illness need
not be perceivable at such time, but the illness itself must have attached at such
moment, or prior thereto.

(4) Such incapacity must also be shown to be medically or clinically

permanent or incurable. Such incurability may be absolute or even relative only in
regard to the other spouse, not necessarily absolutely against everyone of the
same sex. Furthermore, such incapacity must be relevant to the assumption of
marriage obligations, not necessarily to those not related to marriage, like the
exercise of a profession or employment in a job. Hence, a pediatrician may be
effective in diagnosing illnesses of children and prescribing medicine to cure them
but may not be psychologically capacitated to procreate, bear and raise his/her
own children as an essential obligation of marriage.

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

(6) The essential marital obligations must be those embraced by

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

(7) Interpretations given by the National Appellate Matrimonial

Tribunal of the Catholic Church in the Philippines, while not controlling or
decisive, should be given great respect by our courts. It is clear that Article 36 was
taken by the Family Code Revision Committee from Canon 1095 of the New
Code of Canon Law, which became effective in 1983 and which provides:

The following are incapable of contracting marriage: Those who are

unable to assume the essential obligations of marriage due to causes of
psychological nature.

Since the purpose of including such provision in our Family Code is to

harmonize our civil laws with the religious faith of our people, it stands to reason
that to achieve such harmonization, great persuasive weight should be given to
decisions of such appellate tribunal. Ideally subject to our law on evidence
what is decreed as canonically invalid should also be decreed civilly void.

This is one instance where, in view of the evident source and purpose of
the Family Code provision, contemporaneous religious interpretation is to be
given persuasive effect. Here, the State and the Churchwhile remaining
independent, separate and apart from each othershall walk together in synodal
cadence towards the same goal of protecting and cherishing marriage and the
family as the inviolable base of the nation.

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

Noteworthy is that in Molina, while the majority of the Courts membership concurred in
the ponencia of then Associate Justice (later Chief Justice) Artemio V. Panganiban, three justices
concurred in the result and another threeincluding, as aforesaid, Justice Romerotook pains
to compose their individual separate opinions. Then Justice Teodoro R. Padilla even emphasized
that each case must be judged, not on the basis of a priori assumptions, predelictions or
generalizations, but according to its own facts. In the field of psychological incapacity as a
ground for annulment of marriage, it is trite to say that no case is on all fours with another case.
The trial judge must take pains in examining the factual milieu and the appellate court must, as
much as possible, avoid substituting its own judgment for that of the trial court.

Predictably, however, in resolving subsequent cases, the Court has applied the aforesaid
standards, without too much regard for the laws clear intention that each case is to be treated
differently, as courts should interpret the provision on a case-to-case basis; guided by
experience, the findings of experts and researchers in psychological disciplines, and by decisions
of church tribunals.

In hindsight, it may have been inappropriate for the Court to impose a rigid set of rules,
as the one in Molina, in resolving all cases of psychological incapacity. Understandably, the
Court was then alarmed by the deluge of petitions for the dissolution of marital bonds, and was
sensitive to the OSGs exaggeration of Article 36 as the most liberal divorce procedure in the
world. The unintended consequences of Molina, however, has taken its toll on people who have
to live with deviant behavior, moral insanity and sociopathic personality anomaly, which, like
termites, consume little by little the very foundation of their families, our basic social
institutions. Far from what was intended by the Court, Molina has become a strait-jacket,
forcing all sizes to fit into and be bound by it. Wittingly or unwittingly, the Court, in
conveniently applying Molina, has allowed diagnosed sociopaths, schizophrenics,
nymphomaniacs, narcissists and the like, to continuously debase and pervert the sanctity of
marriage. Ironically, the Roman Rota has annulled marriages on account of the personality
disorders of the said individuals.

The Court need not worry about the possible abuse of the remedy provided by Article 36,
for there are ample safeguards against this contingency, among which is the intervention by the
State, through the public prosecutor, to guard against collusion between the parties and/or
fabrication of evidence. The Court should rather be alarmed by the rising number of cases
involving marital abuse, child abuse, domestic violence and incestuous rape.

In dissolving marital bonds on account of either partys psychological incapacity, the

Court is not demolishing the foundation of families, but it is actually protecting the sanctity of
marriage, because it refuses to allow a person afflicted with a psychological disorder, who cannot
comply with or assume the essential marital obligations, from remaining in that sacred bond. It
may be stressed that the infliction of physical violence, constitutional indolence or laziness, drug
dependence or addiction, and psychosexual anomaly are manifestations of a sociopathic
personality anomaly. Let it be noted that in Article 36, there is no marriage to speak of in the
first place, as the same is void from the very beginning. To indulge in imagery, the declaration
of nullity under Article 36 will simply provide a decent burial to a stillborn marriage.

The prospect of a possible remarriage by the freed spouses should not pose too much of a
concern for the Court. First and foremost, because it is none of its business. And second,
because the judicial declaration of psychological incapacity operates as a warning or a lesson
learned. On one hand, the normal spouse would have become vigilant, and never again marry a
person with a personality disorder. On the other hand, a would-be spouse of the psychologically
incapacitated runs the risk of the latters disorder recurring in their marriage.

Lest it be misunderstood, we are not suggesting the abandonment of Molina in this case.
We simply declare that, as aptly stated by Justice Dante O. Tinga in Antonio v. Reyes, there is
need to emphasize other perspectives as well which should govern the disposition of petitions for
declaration of nullity under Article 36. At the risk of being redundant, we reiterate once more
the principle that each case must be judged, not on the basis of a priori assumptions,
predilections or generalizations but according to its own facts. And, to repeat for emphasis,
courts should interpret the provision on a case-to-case basis; guided by experience, the findings
of experts and researchers in psychological disciplines, and by decisions of church tribunals.

II.

We now examine the instant case.

The parties whirlwind relationship lasted more or less six (6) months. They met in
January 1996, eloped in March, exchanged marital vows in May, and parted ways in June. The
psychologist who provided expert testimony found both parties psychologically incapacitated.
Petitioners behavioral pattern falls under the classification of dependent personality disorder,
and respondents, that of the narcissistic and antisocial personality disorder.

By the very nature of Article 36, courts, despite having the primary task and burden of
decision-making, must not discount but, instead, must consider as decisive evidence the
expert opinion on the psychological and mental temperaments of the parties.

Justice Romero explained this in Molina, as follows:

Furthermore, and equally significant, the professional opinion of a

psychological expert became increasingly important in such cases. Data about
the person's entire life, both before and after the ceremony, were presented to
these experts and they were asked to give professional opinions about a party's
mental capacity at the time of the wedding. These opinions were rarely challenged
and tended to be accepted as decisive evidence of lack of valid consent.
 The Church took pains to point out that its new openness in this area did
not amount to the addition of new grounds for annulment, but rather was an
accommodation by the Church to the advances made in psychology during the
past decades. There was now the expertise to provide the all-important
connecting link between a marriage breakdown and premarital causes.

During the 1970s, the Church broadened its whole idea of marriage from
that of a legal contract to that of a covenant. The result of this was that it could no
longer be assumed in annulment cases that a person who could intellectually
understand the concept of marriage could necessarily give valid consent to
marry. The ability to both grasp and assume the real obligations of a mature,
lifelong commitment are now considered a necessary prerequisite to valid
matrimonial consent.

Rotal decisions continued applying the concept of incipient psychological

incapacity, not only to sexual anomalies but to all kinds of personality disorders
that incapacitate a spouse or both spouses from assuming or carrying out the
essential obligations of marriage. For marriage . . . is not merely cohabitation or
the right of the spouses to each other's body for heterosexual acts, but is, in its
totality the right to the community of the whole of life; i.e., the right to a
developing lifelong relationship. Rotal decisions since 1973 have refined the
meaning of psychological or psychic capacity for marriage as presupposing the
development of an adult personality; as meaning the capacity of the spouses to
give themselves to each other and to accept the other as a distinct person; that
the spouses must be other oriented since the obligations of marriage are rooted
in a self-giving love; and that the spouses must have the capacity for
interpersonal relationship because marriage is more than just a physical reality
but involves a true intertwining of personalities. The fulfillment of the obligations
of marriage depends, according to Church decisions, on the strength of this
interpersonal relationship. A serious incapacity for interpersonal sharing and
support is held to impair the relationship and consequently, the ability to fulfill the
essential marital obligations. The marital capacity of one spouse is not considered
in isolation but in reference to the fundamental relationship to the other spouse.

Fr. Green, in an article in Catholic Mind, lists six elements necessary to

the mature marital relationship:

The courts consider the following elements crucial to the

marital commitment: (1) a permanent and faithful commitment to
the marriage partner; (2) openness to children and partner; (3)
stability; (4) emotional maturity; (5) financial responsibility; (6) an
ability to cope with the ordinary stresses and strains of marriage,
etc.
 Fr. Green goes on to speak about some of the psychological conditions that might
lead to the failure of a marriage:

At stake is a type of constitutional impairment precluding

conjugal communion even with the best intentions of the parties.
Among the psychic factors possibly giving rise to his or her
inability to fulfill marital obligations are the following: (1)
antisocial personality with its fundamental lack of loyalty to
persons or sense of moral values; (2) hyperesthesia, where the
individual has no real freedom of sexual choice; (3) the inadequate
personality where personal responses consistently fall short of
reasonable expectations.

xxxx

The psychological grounds are the best approach for

anyone who doubts whether he or she has a case for an annulment
on any other terms. A situation that does not fit into any of the
more traditional categories often fits very easily into the
psychological category.

As new as the psychological grounds are, experts are

already detecting a shift in their use. Whereas originally the
emphasis was on the parties' inability to exercise proper judgment
at the time of the marriage (lack of due discretion), recent cases
seem to be concentrating on the parties' incapacity to assume or
carry out their responsibilities and obligations as promised (lack
of due competence). An advantage to using the ground of lack of
due competence is that at the time the marriage was entered into
civil divorce and breakup of the family almost always is proof of
someone's failure to carry out marital responsibilities as promised
at the time the marriage was entered into.

Hernandez v. Court of Appeals emphasizes the importance of presenting expert testimony

to establish the precise cause of a partys psychological incapacity, and to show that it existed at
the inception of the marriage. And as Marcos v. Marcos asserts, there is no requirement that the
person to be declared psychologically incapacitated be personally examined by a physician, if the
totality of evidence presented is enough to sustain a finding of psychological incapacity. Verily,
the evidence must show a link, medical or the like, between the acts that manifest psychological
incapacity and the psychological disorder itself.
 This is not to mention, but we mention nevertheless for emphasis, that the presentation of
expert proof presupposes a thorough and in-depth assessment of the parties by the psychologist
or expert, for a conclusive diagnosis of a grave, severe and incurable presence of psychological
incapacity. Parenthetically, the Court, at this point, finds it fitting to suggest the inclusion in the
Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable
Marriages, an option for the trial judge to refer the case to a court-appointed psychologist/expert
for an independent assessment and evaluation of the psychological state of the parties. This will
assist the courts, who are no experts in the field of psychology, to arrive at an intelligent and
judicious determination of the case. The rule, however, does not dispense with the parties
prerogative to present their own expert witnesses.

Going back, in the case at bench, the psychological assessment, which we consider as
adequate, produced the findings that both parties are afflicted with personality disordersto
repeat, dependent personality disorder for petitioner, and narcissistic and antisocial personality
disorder for respondent. We note that The Encyclopedia of Mental Health discusses personality
disorders as follows

A group of disorders involving behaviors or traits that are characteristic of a

persons recent and long-term functioning. Patterns of perceiving and thinking are
not usually limited to isolated episodes but are deeply ingrained, inflexible,
maladaptive and severe enough to cause the individual mental stress or anxieties
or to interfere with interpersonal relationships and normal functioning.
Personality disorders are often recognizable by adolescence or earlier, continue
through adulthood and become less obvious in middle or old age. An individual
may have more than one personality disorder at a time.

The common factor among individuals who have personality disorders,

despite a variety of character traits, is the way in which the disorder leads to
pervasive problems in social and occupational adjustment. Some individuals with
personality disorders are perceived by others as overdramatic, paranoid,
obnoxious or even criminal, without an awareness of their behaviors. Such
qualities may lead to trouble getting along with other people, as well as
difficulties in other areas of life and often a tendency to blame others for their
problems. Other individuals with personality disorders are not unpleasant or
difficult to work with but tend to be lonely, isolated or dependent. Such traits can
lead to interpersonal difficulties, reduced self-esteem and dissatisfaction with life.

Causes of Personality Disorders Different mental health viewpoints

propose a variety of causes of personality disorders. These include Freudian,
genetic factors, neurobiologic theories and brain wave activity.

Freudian Sigmund Freud believed that fixation at certain stages of

development led to certain personality types. Thus, some disorders as described
in the Diagnostic and Statistical Manual of Mental Disorders (3d ed., rev.) are
derived from his oral, anal and phallic character types. Demanding and dependent
behavior (dependent and passive-aggressive) was thought to derive from fixation
at the oral stage. Characteristics of obsessionality, rigidity and emotional
aloofness were thought to derive from fixation at the anal stage; fixation at the
phallic stage was thought to lead to shallowness and an inability to engage in
intimate relationships. However, later researchers have found little evidence that
early childhood events or fixation at certain stages of development lead to specific
personality patterns.

Genetic Factors Researchers have found that there may be a genetic

factor involved in the etiology of antisocial and borderline personality disorders;
there is less evidence of inheritance of other personality disorders. Some family,
adoption and twin studies suggest that schizotypal personality may be related to
genetic factors.

Neurobiologic Theories In individuals who have borderline personality,

researchers have found that low cerebrospinal fluid 5-hydroxyindoleacetic acid
(5-HIAA) negatively correlated with measures of aggression and a past history of
suicide attempts. Schizotypal personality has been associated with low platelet
monoamine oxidase (MAO) activity and impaired smooth pursuit eye movement.

Brain Wave Activity Abnormalities in electroencephalograph (EEG) have

been reported in antisocial personality for many years; slow wave is the most
widely reported abnormality. A study of borderline patients reported that 38
percent had at least marginal EEG abnormalities, compared with 19 percent in a
control group.

Types of Disorders According to the American Psychiatric Associations

Diagnostic and Statistical Manual of Mental Disorders (3d ed., rev., 1987), or
DSM-III-R, personality disorders are categorized into three major clusters:
 Cluster A: Paranoid, schizoid and schizotypal personality disorders.
Individuals who have these disorders often appear to have odd or eccentric habits
and traits.

Cluster B: Antisocial, borderline, histrionic and narcissistic personality

disorders. Individuals who have these disorders often appear overly emotional,
erratic and dramatic.

Cluster C: Avoidant, dependent, obsessive-compulsive and passive-

aggressive personality disorders. Individuals who have these disorders often
appear anxious or fearful.

The DSM-III-R also lists another category, personality disorder not

otherwise specified, that can be used for other specific personality disorders or
for mixed conditions that do not qualify as any of the specific personality
disorders.

Individuals with diagnosable personality disorders usually have long-term

concerns, and thus therapy may be long-term.

Dependent personality disorder is characterized in the following manner

A personality disorder characterized by a pattern of dependent and submissive

behavior. Such individuals usually lack self-esteem and frequently belittle their
capabilities; they fear criticism and are easily hurt by others comments. At times
they actually bring about dominance by others through a quest for overprotection.

Dependent personality disorder usually begins in early adulthood.

Individuals who have this disorder may be unable to make everyday decisions
without advice or reassurance from others, may allow others to make most of their
important decisions (such as where to live), tend to agree with people even when
they believe they are wrong, have difficulty starting projects or doing things on
their own, volunteer to do things that are demeaning in order to get approval from
other people, feel uncomfortable or helpless when alone and are often
preoccupied with fears of being abandoned.
and antisocial personality disorder described, as follows

Characteristics include a consistent pattern of behavior that is intolerant of the

conventional behavioral limitations imposed by a society, an inability to sustain a
job over a period of years, disregard for the rights of others (either through
exploitiveness or criminal behavior), frequent physical fights and, quite
commonly, child or spouse abuse without remorse and a tendency to blame
others. There is often a faade of charm and even sophistication that masks
disregard, lack of remorse for mistreatment of others and the need to control
others.

Although characteristics of this disorder describe criminals, they also may

befit some individuals who are prominent in business or politics whose habits of
self-centeredness and disregard for the rights of others may be hidden prior to a
public scandal.

During the 19th century, this type of personality disorder was referred to as
moral insanity. The term described immoral, guiltless behavior that was not
accompanied by impairments in reasoning.

According to the classification system used in the Diagnostic and

Statistical Manual of Mental Disorders (3d ed., rev. 1987), anti-social personality
disorder is one of the four dramatic personality disorders, the others being
borderline, histrionic and narcissistic.

The seriousness of the diagnosis and the gravity of the disorders considered, the Court, in
this case, finds as decisive the psychological evaluation made by the expert witness; and, thus,
rules that the marriage of the parties is null and void on ground of both parties psychological
incapacity. We further consider that the trial court, which had a first-hand view of the witnesses
deportment, arrived at the same conclusion.

Indeed, petitioner, who is afflicted with dependent personality disorder, cannot assume the
essential marital obligations of living together, observing love, respect and fidelity and rendering
help and support, for he is unable to make everyday decisions without advice from others, allows
others to make most of his important decisions (such as where to live), tends to agree with people
even when he believes they are wrong, has difficulty doing things on his own, volunteers to do
things that are demeaning in order to get approval from other people, feels uncomfortable or
helpless when alone and is often preoccupied with fears of being abandoned. As clearly shown in
this case, petitioner followed everything dictated to him by the persons around him. He is
insecure, weak and gullible, has no sense of his identity as a person, has no cohesive self to
speak of, and has no goals and clear direction in life.

Although on a different plane, the same may also be said of the respondent. Her being
afflicted with antisocial personality disorder makes her unable to assume the essential marital
obligations. This finding takes into account her disregard for the rights of others, her abuse,
mistreatment and control of others without remorse, her tendency to blame others, and her
intolerance of the conventional behavioral limitations imposed by society. Moreover, as shown in
this case, respondent is impulsive and domineering; she had no qualms in manipulating petitioner
with her threats of blackmail and of committing suicide.

Both parties being afflicted with grave, severe and incurable psychological incapacity, the
precipitous marriage which they contracted on April 23, 1996 is thus, declared null and void.

WHEREFORE, premises considered, the petition for review on certiorari is

GRANTED. The August 5, 2003 Decision and the January 19, 2004 Resolution of the Court of
Appeals in CA-G.R. CV No. 71867 are REVERSED and SET ASIDE, and the Decision, dated
July 30, 2001, REINSTATED.

THIRD DIVISION

G.R. No. 166562 March 31, 2009

BENJAMIN G. TING, Petitioner,
vs.
CARMEN M. VELEZ-TING, Respondent.

DECISION

NACHURA, J.:

Before us is a petition for review on certiorari seeking to set aside the November 17, 2003
Amended Decision1 of the Court of Appeals (CA), and its December 13, 2004 Resolution2 in
CA-G.R. CV No. 59903. The appellate court, in its assailed decision and resolution, affirmed the
January 9, 1998 Decision3 of the Regional Trial Court (RTC), Branch 23, Cebu City, declaring
the marriage between petitioner and respondent null and void ab initio pursuant to Article 36 of
the Family Code.4

The facts follow.

Petitioner Benjamin Ting (Benjamin) and respondent Carmen Velez-Ting (Carmen) first met in
1972 while they were classmates in medical school.5 They fell in love, and they were wed on
July 26, 1975 in Cebu City when respondent was already pregnant with their first child.

At first, they resided at Benjamins family home in Maguikay, Mandaue City.6 When their second
child was born, the couple decided to move to Carmens family home in Cebu City.7 In
September 1975, Benjamin passed the medical board examinations8 and thereafter proceeded to
take a residency program to become a surgeon but shifted to anesthesiology after two years. By
1979, Benjamin completed the preceptorship program for the said field9 and, in 1980, he began
working for Velez Hospital, owned by Carmens family, as member of its active staff,10 while
Carmen worked as the hospitals Treasurer.11

The couple begot six (6) children, namely Dennis, born on December 9, 1975; James Louis, born
on August 25, 1977; Agnes Irene, born on April 5, 1981; Charles Laurence, born on July 21,
1986; Myles Vincent, born on July 19, 1988; and Marie Corinne, born on June 16, 1991.12

On October 21, 1993, after being married for more than 18 years to petitioner and while their
youngest child was only two years old, Carmen filed a verified petition before the RTC of Cebu
City praying for the declaration of nullity of their marriage based on Article 36 of the Family
Code. She claimed that Benjamin suffered from psychological incapacity even at the time of the
celebration of their marriage, which, however, only became manifest thereafter. 13

In her complaint, Carmen stated that prior to their marriage, she was already aware that
Benjamin used to drink and gamble occasionally with his friends.14 But after they were married,
petitioner continued to drink regularly and would go home at about midnight or sometimes in the
wee hours of the morning drunk and violent. He would confront and insult respondent,
physically assault her and force her to have sex with him. There were also instances when
Benjamin used his gun and shot the gate of their house.15 Because of his drinking habit,
Benjamins job as anesthesiologist was affected to the point that he often had to refuse to answer
the call of his fellow doctors and to pass the task to other anesthesiologists. Some surgeons even
stopped calling him for his services because they perceived petitioner to be unreliable.
Respondent tried to talk to her husband about the latters drinking problem, but Benjamin refused
to acknowledge the same.16

Carmen also complained that petitioner deliberately refused to give financial support to their
family and would even get angry at her whenever she asked for money for their children. Instead
of providing support, Benjamin would spend his money on drinking and gambling and would
even buy expensive equipment for his hobby.17 He rarely stayed home18 and even neglected his
obligation to his children.19

Aside from this, Benjamin also engaged in compulsive gambling.20 He would gamble two or
three times a week and would borrow from his friends, brothers, or from loan sharks whenever
he had no money. Sometimes, Benjamin would pawn his wifes own jewelry to finance his
gambling.21 There was also an instance when the spouses had to sell their family car and even a
portion of the lot Benjamin inherited from his father just to be able to pay off his gambling
debts.22 Benjamin only stopped going to the casinos in 1986 after he was banned therefrom for
having caused trouble, an act which he said he purposely committed so that he would be banned
from the gambling establishments.23

In sum, Carmens allegations of Benjamins psychological incapacity consisted of the following

manifestations:

1. Benjamins alcoholism, which adversely affected his family relationship and his
profession;

2. Benjamins violent nature brought about by his excessive and regular drinking;

3. His compulsive gambling habit, as a result of which Benjamin found it necessary to

sell the family car twice and the property he inherited from his father in order to pay off
his debts, because he no longer had money to pay the same; and

4. Benjamins irresponsibility and immaturity as shown by his failure and refusal to give
regular financial support to his family.24

In his answer, Benjamin denied being psychologically incapacitated. He maintained that he is a

respectable person, as his peers would confirm. He said that he is an active member of social and
athletic clubs and would drink and gamble only for social reasons and for leisure. He also denied
being a violent person, except when provoked by circumstances.25 As for his alleged failure to
support his family financially, Benjamin claimed that it was Carmen herself who would collect
his professional fees from Velez Hospital when he was still serving there as practicing
anesthesiologist.26 In his testimony, Benjamin also insisted that he gave his family financial
support within his means whenever he could and would only get angry at respondent for lavishly
spending his hard-earned money on unnecessary things.27 He also pointed out that it was he who
often comforted and took care of their children, while Carmen played mahjong with her friends
twice a week.28
During the trial, Carmens testimony regarding Benjamins drinking and gambling habits and
violent behavior was corroborated by Susana Wasawas, who served as nanny to the spouses
children from 1987 to 1992.29 Wasawas stated that she personally witnessed instances when
Benjamin maltreated Carmen even in front of their children.30

Carmen also presented as witness Dr. Pureza Trinidad-Oate, a psychiatrist.31 Instead of the usual
personal interview, however, Dr. Oates evaluation of Benjamin was limited to the transcript of
stenographic notes taken during Benjamins deposition because the latter had already gone to
work as an anesthesiologist in a hospital in South Africa. After reading the transcript of
stenographic notes, Dr. Oate concluded that Benjamins compulsive drinking, compulsive
gambling and physical abuse of respondent are clear indications that petitioner suffers from a
personality disorder.32

To refute Dr. Oates opinion, petitioner presented Dr. Renato D. Obra, a psychiatrist and a
consultant at the Department of Psychiatry in Don Vicente Sotto Memorial Medical Center, as
his expert witness.33 Dr. Obra evaluated Benjamins psychological behavior based on the
transcript of stenographic notes, as well as the psychiatric evaluation report prepared by Dr.
A.J.L. Pentz, a psychiatrist from the University of Pretoria in South Africa, and his (Dr. Obras)
interview with Benjamins brothers.34 Contrary to Dr. Oates findings, Dr. Obra observed that
there is nothing wrong with petitioners personality, considering the latters good relationship
with his fellow doctors and his good track record as anesthesiologist.35

On January 9, 1998, the lower court rendered its Decision36 declaring the marriage between
petitioner and respondent null and void. The RTC gave credence to Dr. Oates findings and the
admissions made by Benjamin in the course of his deposition, and found him to be
psychologically incapacitated to comply with the essential obligations of marriage. Specifically,
the trial court found Benjamin an excessive drinker, a compulsive gambler, someone who prefers
his extra-curricular activities to his family, and a person with violent tendencies, which character
traits find root in a personality defect existing even before his marriage to Carmen. The decretal
portion of the decision reads:

WHEREFORE, all the foregoing considered, judgment is hereby rendered declaring the marriage
between plaintiff and defendant null and void ab initio pursuant to Art. 36 of the Family Code. x
xx

xxxx

SO ORDERED.37

Aggrieved, petitioner appealed to the CA. On October 19, 2000, the CA rendered a Decision38
reversing the trial courts ruling. It faulted the trial courts finding, stating that no proof was
adduced to support the conclusion that Benjamin was psychologically incapacitated at the time
he married Carmen since Dr. Oates conclusion was based only on theories and not on
established fact,39 contrary to the guidelines set forth in Santos v. Court of Appeals40 and in Rep.
of the Phils. v. Court of Appeals and Molina.41
Because of this, Carmen filed a motion for reconsideration, arguing that the Molina guidelines
should not be applied to this case since the Molina decision was promulgated only on February
13, 1997, or more than five years after she had filed her petition with the RTC.42 She claimed that
the Molina ruling could not be made to apply retroactively, as it would run counter to the
principle of stare decisis. Initially, the CA denied the motion for reconsideration for having been
filed beyond the prescribed period. Respondent thereafter filed a manifestation explaining
compliance with the prescriptive period but the same was likewise denied for lack of merit.
Undaunted, respondent filed a petition for certiorari43 with this Court. In a Resolution44 dated
March 5, 2003, this Court granted the petition and directed the CA to resolve Carmens motion
for reconsideration.45 On review, the CA decided to reconsider its previous ruling. Thus, on
November 17, 2003, it issued an Amended Decision46 reversing its first ruling and sustaining the
trial courts decision.47

A motion for reconsideration was filed, this time by Benjamin, but the same was denied by the
CA in its December 13, 2004 Resolution.48

Hence, this petition.

For our resolution are the following issues:

I. Whether the CA violated the rule on stare decisis when it refused to follow the
guidelines set forth under the Santos and Molina cases;

II. Whether the CA correctly ruled that the requirement of proof of psychological
incapacity for the declaration of absolute nullity of marriage based on Article 36 of the
Family Code has been liberalized; and

III. Whether the CAs decision declaring the marriage between petitioner and respondent
null and void [is] in accordance with law and jurisprudence.

We find merit in the petition.

I. On the issue of stare decisis.

The principle of stare decisis enjoins adherence by lower courts to doctrinal rules established by
this Court in its final decisions. It is based on the principle that once a question of law has been
examined and decided, it should be deemed settled and closed to further argument.49 Basically, it
is a bar to any attempt to relitigate the same issues,50 necessary for two simple reasons: economy
and stability. In our jurisdiction, the principle is entrenched in Article 8 of the Civil Code.51

This doctrine of adherence to precedents or stare decisis was applied by the English courts and
was later adopted by the United States. Associate Justice (now Chief Justice) Reynato S. Punos
discussion on the historical development of this legal principle in his dissenting opinion in
Lambino v. Commission on Elections52 is enlightening:
The latin phrase stare decisis et non quieta movere means "stand by the thing and do not disturb
the calm." The doctrine started with the English Courts. Blackstone observed that at the
beginning of the 18th century, "it is an established rule to abide by former precedents where the
same points come again in litigation." As the rule evolved, early limits to its application were
recognized: (1) it would not be followed if it were "plainly unreasonable"; (2) where courts of
equal authority developed conflicting decisions; and, (3) the binding force of the decision was
the "actual principle or principles necessary for the decision; not the words or reasoning used to
reach the decision."

The doctrine migrated to the United States. It was recognized by the framers of the U.S.
Constitution. According to Hamilton, "strict rules and precedents" are necessary to prevent
"arbitrary discretion in the courts." Madison agreed but stressed that "x x x once the precedent
ventures into the realm of altering or repealing the law, it should be rejected." Prof. Consovoy
well noted that Hamilton and Madison "disagree about the countervailing policy considerations
that would allow a judge to abandon a precedent." He added that their ideas "reveal a deep
internal conflict between the concreteness required by the rule of law and the flexibility
demanded in error correction. It is this internal conflict that the Supreme Court has attempted to
deal with for over two centuries."

Indeed, two centuries of American case law will confirm Prof. Consovoy's observation although
stare decisis developed its own life in the United States. Two strains of stare decisis have been
isolated by legal scholars. The first, known as vertical stare decisis deals with the duty of lower
courts to apply the decisions of the higher courts to cases involving the same facts. The second,
known as horizontal stare decisis requires that high courts must follow its own precedents. Prof.
Consovoy correctly observes that vertical stare decisis has been viewed as an obligation, while
horizontal stare decisis, has been viewed as a policy, imposing choice but not a command.
Indeed, stare decisis is not one of the precepts set in stone in our Constitution.

It is also instructive to distinguish the two kinds of horizontal stare decisis constitutional stare
decisis and statutory stare decisis. Constitutional stare decisis involves judicial interpretations of
the Constitution while statutory stare decisis involves interpretations of statutes. The distinction
is important for courts enjoy more flexibility in refusing to apply stare decisis in constitutional
litigations. Justice Brandeis' view on the binding effect of the doctrine in constitutional litigations
still holds sway today. In soothing prose, Brandeis stated: "Stare decisis is not . . . a universal and
inexorable command. The rule of stare decisis is not inflexible. Whether it shall be followed or
departed from, is a question entirely within the discretion of the court, which is again called upon
to consider a question once decided." In the same vein, the venerable Justice Frankfurter opined:
"the ultimate touchstone of constitutionality is the Constitution itself and not what we have said
about it." In contrast, the application of stare decisis on judicial interpretation of statutes is more
inflexible. As Justice Stevens explains: "after a statute has been construed, either by this Court or
by a consistent course of decision by other federal judges and agencies, it acquires a meaning
that should be as clear as if the judicial gloss had been drafted by the Congress itself." This
stance reflects both respect for Congress' role and the need to preserve the courts' limited
resources.
In general, courts follow the stare decisis rule for an ensemble of reasons, viz.: (1) it legitimizes
judicial institutions; (2) it promotes judicial economy; and, (3) it allows for predictability.
Contrariwise, courts refuse to be bound by the stare decisis rule where (1) its application
perpetuates illegitimate and unconstitutional holdings; (2) it cannot accommodate changing
social and political understandings; (3) it leaves the power to overturn bad constitutional law
solely in the hands of Congress; and, (4) activist judges can dictate the policy for future courts
while judges that respect stare decisis are stuck agreeing with them.

In its 200-year history, the U.S. Supreme Court has refused to follow the stare decisis rule and
reversed its decisions in 192 cases. The most famous of these reversals is Brown v. Board of
Education which junked Plessy v. Ferguson's "separate but equal doctrine." Plessy upheld as
constitutional a state law requirement that races be segregated on public transportation. In
Brown, the U.S. Supreme Court, unanimously held that "separate . . . is inherently unequal."
Thus, by freeing itself from the shackles of stare decisis, the U.S. Supreme Court freed the
colored Americans from the chains of inequality. In the Philippine setting, this Court has likewise
refused to be straitjacketed by the stare decisis rule in order to promote public welfare. In La
Bugal-B'laan Tribal Association, Inc. v. Ramos, we reversed our original ruling that certain
provisions of the Mining Law are unconstitutional. Similarly, in Secretary of Justice v. Lantion,
we overturned our first ruling and held, on motion for reconsideration, that a private respondent
is bereft of the right to notice and hearing during the evaluation stage of the extradition process.

An examination of decisions on stare decisis in major countries will show that courts are agreed
on the factors that should be considered before overturning prior rulings. These are workability,
reliance, intervening developments in the law and changes in fact. In addition, courts put in the
balance the following determinants: closeness of the voting, age of the prior decision and its
merits.

The leading case in deciding whether a court should follow the stare decisis rule in constitutional
litigations is Planned Parenthood v. Casey. It established a 4-pronged test. The court should (1)
determine whether the rule has proved to be intolerable simply in defying practical workability;
(2) consider whether the rule is subject to a kind of reliance that would lend a special hardship to
the consequences of overruling and add inequity to the cost of repudiation; (3) determine
whether related principles of law have so far developed as to have the old rule no more than a
remnant of an abandoned doctrine; and, (4) find out whether facts have so changed or come to be
seen differently, as to have robbed the old rule of significant application or justification.53

To be forthright, respondents argument that the doctrinal guidelines prescribed in Santos and
Molina should not be applied retroactively for being contrary to the principle of stare decisis is
no longer new. The same argument was also raised but was struck down in Pesca v. Pesca,54 and
again in Antonio v. Reyes.55 In these cases, we explained that the interpretation or construction of
a law by courts constitutes a part of the law as of the date the statute is enacted. It is only when a
prior ruling of this Court is overruled, and a different view is adopted, that the new doctrine may
have to be applied prospectively in favor of parties who have relied on the old doctrine and have
acted in good faith, in accordance therewith under the familiar rule of "lex prospicit, non
respicit."
II. On liberalizing the required proof for the declaration of nullity of marriage under Article 36.

Now, petitioner wants to know if we have abandoned the Molina doctrine.

We have not.

In Edward Kenneth Ngo Te v. Rowena Ong Gutierrez Yu-Te,56 we declared that, in hindsight, it
may have been inappropriate for the Court to impose a rigid set of rules, as the one in Molina, in
resolving all cases of psychological incapacity. We said that instead of serving as a guideline,
Molina unintentionally became a straightjacket, forcing all cases involving psychological
incapacity to fit into and be bound by it, which is not only contrary to the intention of the law but
unrealistic as well because, with respect to psychological incapacity, no case can be considered
as on "all fours" with another.57

By the very nature of cases involving the application of Article 36, it is logical and
understandable to give weight to the expert opinions furnished by psychologists regarding the
psychological temperament of parties in order to determine the root cause, juridical antecedence,
gravity and incurability of the psychological incapacity. However, such opinions, while highly
advisable, are not conditions sine qua non in granting petitions for declaration of nullity of
marriage.58 At best, courts must treat such opinions as decisive but not indispensable evidence in
determining the merits of a given case. In fact, if the totality of evidence presented is enough to
sustain a finding of psychological incapacity, then actual medical or psychological examination
of the person concerned need not be resorted to.59 The trial court, as in any other given case
presented before it, must always base its decision not solely on the expert opinions furnished by
the parties but also on the totality of evidence adduced in the course of the proceedings.

It was for this reason that we found it necessary to emphasize in Ngo Te that each case involving
the application of Article 36 must be treated distinctly and judged not on the basis of a priori
assumptions, predilections or generalizations but according to its own attendant facts. Courts
should interpret the provision on a case-to-case basis, guided by experience, the findings of
experts and researchers in psychological disciplines, and by decisions of church tribunals.

Far from abandoning Molina, we simply suggested the relaxation of the stringent requirements
set forth therein, cognizant of the explanation given by the Committee on the Revision of the
Rules on the rationale of the Rule on Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages (A.M. No. 02-11-10-SC), viz.:

To require the petitioner to allege in the petition the particular root cause of the psychological
incapacity and to attach thereto the verified written report of an accredited psychologist or
psychiatrist have proved to be too expensive for the parties. They adversely affect access to
justice o poor litigants. It is also a fact that there are provinces where these experts are not
available. Thus, the Committee deemed it necessary to relax this stringent requirement
enunciated in the Molina Case. The need for the examination of a party or parties by a
psychiatrist or clinical psychologist and the presentation of psychiatric experts shall now be
determined by the court during the pre-trial conference.60
But where, as in this case, the parties had the full opportunity to present professional and expert
opinions of psychiatrists tracing the root cause, gravity and incurability of a partys alleged
psychological incapacity, then such expert opinion should be presented and, accordingly, be
weighed by the court in deciding whether to grant a petition for nullity of marriage.

III. On petitioners psychological incapacity.

Coming now to the main issue, we find the totality of evidence adduced by respondent
insufficient to prove that petitioner is psychologically unfit to discharge the duties expected of
him as a husband, and more particularly, that he suffered from such psychological incapacity as
of the date of the marriage eighteen (18) years ago. Accordingly, we reverse the trial courts and
the appellate courts rulings declaring the marriage between petitioner and respondent null and
void ab initio.

The intendment of the law has been to confine the application of Article 36 to the most serious
cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give
meaning and significance to the marriage.61 The psychological illness that must have afflicted a
party at the inception of the marriage should be a malady so grave and permanent as to deprive
one of awareness of the duties and responsibilities of the matrimonial bond he or she is about to
assume.621avvphi1.zw+

In this case, respondent failed to prove that petitioners "defects" were present at the time of the
celebration of their marriage. She merely cited that prior to their marriage, she already knew that
petitioner would occasionally drink and gamble with his friends; but such statement, by itself, is
insufficient to prove any pre-existing psychological defect on the part of her husband. Neither
did the evidence adduced prove such "defects" to be incurable.

The evaluation of the two psychiatrists should have been the decisive evidence in determining
whether to declare the marriage between the parties null and void. Sadly, however, we are not
convinced that the opinions provided by these experts strengthened respondents allegation of
psychological incapacity. The two experts provided diametrically contradicting psychological
evaluations: Dr. Oate testified that petitioners behavior is a positive indication of a personality
disorder,63 while Dr. Obra maintained that there is nothing wrong with petitioners personality.
Moreover, there appears to be greater weight in Dr. Obras opinion because, aside from analyzing
the transcript of Benjamins deposition similar to what Dr. Oate did, Dr. Obra also took into
consideration the psychological evaluation report furnished by another psychiatrist in South
Africa who personally examined Benjamin, as well as his (Dr. Obras) personal interview with
Benjamins brothers.64 Logically, therefore, the balance tilts in favor of Dr. Obras findings.

Lest it be misunderstood, we are not condoning petitioners drinking and gambling problems, or
his violent outbursts against his wife. There is no valid excuse to justify such a behavior.
Petitioner must remember that he owes love, respect, and fidelity to his spouse as much as the
latter owes the same to him. Unfortunately, this court finds respondents testimony, as well as the
totality of evidence presented by the respondent, to be too inadequate to declare him
psychologically unfit pursuant to Article 36.
It should be remembered that the presumption is always in favor of the validity of marriage.
Semper praesumitur pro matrimonio.65 In this case, the presumption has not been amply rebutted
and must, perforce, prevail.

WHEREFORE, premises considered, the petition for review on certiorari is GRANTED. The
November 17, 2003 Amended Decision and the December 13, 2004 Resolution of the Court of
Appeals in CA-G.R. CV No. 59903 are accordingly REVERSED and SET ASIDE.

SO ORDERED.

Republic of the Philippines

Supreme Court

Manila

SECOND DIVISION

CYNTHIA E. YAMBAO, G.R. No. 184063

Petitioner, Present:

- versus - CARPIO, J.,

REPUBLIC OF THE Chairperson,

PHILIPPINES and PATRICIO E.
YAMBAO, NACHURA,

Respondents. PERALTA,

ABAD, and

MENDOZA, JJ.

Promulgated:

January 24, 2011

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

DECISION

NACHURA, J.:
Before this Court is yet another tale of marital woe.

Petitioner Cynthia E. Yambao (petitioner) is assailing the Decision[1] dated April 16, 2008 and
the Resolution[2] dated August 4, 2008 of the Court of Appeals (CA) in CA-G.R. CV No. 89262.
The CA affirmed the decision[3] of the Regional Trial Court (RTC) of Makati City, which denied
petitioners Petition[4] for the annulment of her marriage to respondent Patricio E. Yambao
(respondent) on the ground of psychological incapacity.

Petitioner and respondent were married on December 21, 1968 at the Philamlife Church in
Quezon City.[5][6] before the RTC, Makati City, praying that the marriage be declared null and
void by reason of respondents psychological incapacity, pursuant to Article 36 of the Family
Code.[7] On July 11, 2003, after 35 years of marriage, petitioner filed a Petition

In her petition before the RTC, petitioner narrated that, since the beginning, her and respondents
married life had been marred by bickering, quarrels, and recrimination due to the latters inability
to comply with the essential obligations of married life.[8]

Petitioner averred that through all the years of their married life, she was the only one who
earned a living and took care of the children. Respondent, she alleged, did nothing but eat and
sleep all day, and spend time with friends. When respondent would find a job, he would not be
able to stay in it for long. Likewise, respondent went into several business ventures, which all
failed. In addition, respondent loved to gamble and would gamble away whatever money would
come his way.

Petitioner also claimed that, when their children were babies, respondent did not even help to
change their diapers or feed them, even while petitioner was recovering from her caesarean
operation, proffering the excuse that he knew nothing about children.[9] Later, respondent
became insecure and jealous and would get mad every time he would see petitioner talking to
other people, even to her relatives. When respondent started threatening to kill petitioner, she
decided to leave the conjugal abode and live separately from him.[10] She then consulted a
psychiatrist who concluded that respondent was indeed psychologically incapacitated to comply
with the essential marital obligations.[11]

In his Answer, respondent denied that he has refused to work. He claimed that he had been trying
to find a decent job, but was always unable to because of his old age and lack of qualifications.
He also claimed that he did not stay long in the jobs he had because the same could not support
the needs of his family, and yielded benefits that were not commensurate to the efforts he
exerted. He had ventured into small businesses but they failed due to various economic crises.
Respondent further claimed that he was not, in fact, contented with living with petitioners
relatives since his every move was being watched with eagle eyes.[12]

Respondent denied that he gambled, positing that since he had no income, he would not have the
funds for such activity. He alleged that even without a steady source of income, he still shared in
the payment of the amortization of their house in BF Homes, Paraaque City.
As to the care of their children, respondent countered that no fault should be attributed to him
because that is the duty of the household help.[13]

Respondent also denied that he threatened to kill petitioner, considering that there was never any
evidence that he had ever harmed or inflicted physical injury on petitioner to justify the latter
having a nervous breakdown.[14]

He further alleged that he never consulted any psychiatrist, and denied that he was
psychologically incapacitated to comply with the essential obligations of marriage.[15]

On February 9, 2007, the RTC rendered a decision[16] dismissing the petition for lack of merit.
The RTC held that petitioners evidence failed to support her argument that respondent was
totally unaware of and incapacitated to perform his marital obligations such that the marriage
was void from the beginning. The court said that, even as petitioner claimed to be unhappy in the
marriage, it is incontrovertible that the union lasted for over thirty years and the parties were able
to raise three children into adulthood without suffering any major parenting problems. The court
also noted that respondent was faithful to petitioner and never physically abused her. Likewise,
when the parties lived with petitioners parents, respondent got along well enough with her
family.[17]

The RTC recognized that respondent did indeed have many faults, such as his indolence and utter
irresponsibility. However, the RTC said, respondents failure to find decent work was due to his
not having obtained a college degree and his lack of other qualifications. Likewise, respondents
failure in business could not be entirely attributed to him, since petitioner was a business partner
in some of these ventures.[18]

The RTC also rejected the supposed negative effect of respondents Dependent Personality
Disorder. The RTC said that, although the evidence tended to show that respondent would unduly
rely upon petitioner to earn a living for the family, there was no evidence to show that the latter
resented such imposition or suffered with the additional financial burdens passed to her by her
husband. On the contrary, the RTC averred that, despite a supposedly horrible married life,
petitioner was able to rise in the ranks in her company and buy properties with hardly any help
from respondent.[19]

The RTC concluded that while respondent might have been deficient in providing financial
support, his presence, companionship, and love allowed petitioner to accomplish many things.
Thus, respondent could be relied on for love, fidelity, and moral support, which are obligations
expected of a spouse under Article 68 of the Family Code.[20]

Lastly, the RTC rejected petitioners claim that she suffered through respondents overbearing
jealousy. It found that respondent only became jealous when he thought that petitioner was
cheating on him. The RTC determined that jealousy was not a character trait that contributed to
respondents psychological dysfunction; much less did it amount to psychological or mental
torture on petitioner.[21] Thus, the RTC concluded that the parties might have indeed entered
into a bad marriage, but this did not in itself prove that the marriage did not exist, given the 30
years they remained together through the various ups and downs of their volatile relationship.
[22]

Petitioners motion for reconsideration was denied on May 21, 2007.[23] Petitioner subsequently
filed a Notice of Appeal,[24] which was given due course by the RTC in an Order dated June 8,
2007.[25] She then appealed to the CA.

In a Decision[26] dated April 16, 2008, the CA affirmed the RTCs decision. The CA held that
petitioner failed to show that respondent was psychologically incapacitated to comply with the
essential obligations of marriage. It pointed out that respondent exerted efforts to find a source of
income to support his family. However, his failure to find a suitable job and the failure of his
business ventures were not mental but physical defects and, hence, could not be considered
psychological incapacity as contemplated under the law.

The CA also found that petitioners claims that she lived in misery during the marriage and that
respondent failed to keep his promises to her were not duly established. The CA held that the fact
that the parties lived together for 35 years and raised three children well, and the fact that
respondent never physically abused petitioner belied the formers psychological incapacity. The
CA also held that respondents refusal to care for the children was not psychological incapacity
but merely constituted refusal to perform the task, which is not equivalent to an incapacity or
inability.[27]

The appellate court also rejected petitioners allegation of respondents unbearable jealousy. It
said that the same must be shown as a manifestation of a disordered personality which would
make respondent completely unable to discharge the essential obligations of the marital state.[28]
The CA averred that a jealous attitude simply evinced respondents love for his wife, whom he
could not bear to lose to another man. Meanwhile, the CA construed the purported threats to kill
petitioner as emotional immaturity and not psychological incapacity.[29]

Lastly, the CA found the report of expert witness Dr. Edgardo Juan Tolentino (Dr. Tolentino) to
be unsupported by sufficient evidence since the findings therein were not corroborated by any
other witness. Moreover, the CA said, neither the report nor petitioners testimony established
that respondents psychological condition was grave enough to bring about the inability of the
latter to assume the essential obligations of marriage, so that the same was medically permanent
or incurable.[30]

Petitioners subsequent motion for reconsideration was denied in a resolution dated August 4,
2008.[31]

Petitioner is now before this Court in a last ditch effort to gain freedom from her marriage to
respondent. In her petition for review, petitioner submits the following assignment of errors:

I
THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT PETITIONER
FAILED TO SHOW THAT RESPONDENT WAS PSYCHOLOGICALLY INCAPACITATED
TO COMPLY WITH THE ESSENTIAL OBLIGATIONS OF MARRIAGE

II

THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT RESPONDENT

WAS MERELY REFUSING TO COMPLY WITH THE ESSENTIAL OBLIGATIONS OF
MARRIAGE AND NOT DOWNRIGHT INCAPACITATED OR UNABLE

III

THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE

RESPONDENTS UNBEARABLE JEALOUSY CANNOT BE CONSIDERED A
CHARACTER TRAIT CONTRIBUTING TO PSYCHOLOGICAL INCAPACITY

IV

THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THERE WAS NO

SUFFICIENT EVIDENCE TO ESTABLISH THAT THE PSYCHOLOGICAL CONDITION OF
RESPONDENT WAS GRAVE ENOUGH, INCURABLE AND HAD NO ANTECEDENCE
(sic)[32]

Petitioner argues that respondents Dependent Personality Disorder was sufficiently established
by her testimony and that of her sister, which testimonies were both credible considering that
they have personal knowledge of the circumstances prior to and during the parties marriage. On
the other hand, respondents evidence consisted merely of his sole testimony, which were self-
serving and full of inconsistencies.[33] Petitioner points out that what the CA characterized as
respondents efforts in finding jobs were merely the result of short-lived bursts of industry,
failing to note that the jobs were few and very far between.[34] The rest of the time, respondent
did nothing but eat, sleep, and party with his friends.[35] Petitioner also alleges that respondent
was given the opportunity to finish his studies, first by his parents, and then by petitioner herself,
but he never took up these offers.[36]

Petitioner also highlighted respondents failure to earn his keep, participate in household chores,
or take care of their children. She argues that respondent had the obligation to help and
contribute to all the needs of the family, whether the same be in the form of material or physical
support.[37]

Petitioner also refutes the CAs conclusion that respondent was merely refusing to attend to his
familys needs. She insists that respondents inability is due to a psychological affliction, i.e.,
Dependent Personality Disorder, as attested to by the expert witness she presented during trial.
[38] Part of this same disorder, according to petitioner, is respondents jealous tendencies, which
the CA belittled and attributed to emotional immaturity.[39]
Finally, petitioner argues against the CAs finding that respondents laziness and dependence
could not be characterized as inability but just plain refusal. Petitioner contends that she has
complied with the guidelines laid down by the Court in Republic v. Court of Appeals and Molina.
She further contends that the framers of the Family Code never intended to give such a
suppressed definition of psychological incapacity, and, in fact, declared that a restrictive
definition would limit the applicability of the provision.[40] Moreover, she asserts that she has
proven that respondents unbearable jealousy and Dependent Personality Disorder manifested
themselves even before the marriage of the parties, although not in the same degree as when they
were already married.[41]

The petition has no merit and, perforce, must be denied.

Article 36 of the Family Code states:

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

Preliminarily, the Court reiterates its recent pronouncement that each case for declaration of
nullity under the foregoing provision must be judged, not on the basis of a priori assumptions,
predilections, or generalizations, but according to its own facts. And, to repeat for emphasis,
courts should interpret the provision on a case-to-case basis, guided by experience, the findings
of experts and researchers in psychological disciplines, and by decisions of church tribunals.[42]
Judicial understanding of psychological incapacity may be informed by evolving standards,
taking into account the particulars of each case, current trends in psychological and even
canonical thought, and experience.[43]

While the Court has not abandoned the standard set in Molina,[44] the Court has reiterated the
tenet that the factual milieu of each case must be treated as distinct and, as such, each case must
be decided based on its own set of facts.

In Santos v. Court of Appeals,[45] the Court held that psychological incapacity must be
characterized by (a) gravity (b) juridical antecedence, and (c) incurability. These guidelines do
not require that a physician examine the person to be declared psychologically incapacitated. In
fact, the root cause may be medically or clinically identified.[46] What is important is the
presence of evidence that can adequately establish the party's psychological condition. If the
totality of evidence presented is enough to sustain a finding of psychological incapacity, then
actual medical examination of the person concerned need not be resorted to.[47]

Hence, the issue in this case can be summed up, thus: Does the totality of petitioners evidence
establish respondents psychological incapacity to perform the essential obligations of marriage?

The Court holds that it does not.

The intendment of the law has been to confine the application of Article 36 to the most serious
cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give
meaning and significance to the marriage.[48] Thus, for a marriage to be annulled under Article
36 of the Family Code, the psychologically incapacitated spouse must be shown to suffer no less
than a mental (not physical) incapacity that causes him or her to be truly incognitive of the basic
marital covenants.[49] It is a malady so grave and so permanent as to deprive one of awareness
of the duties and responsibilities of the matrimonial bond one is about to assume.[50]

In this case, there is no showing that respondent was suffering from a psychological condition so
severe that he was unaware of his obligations to his wife and family. On the contrary,
respondents efforts, though few and far between they may be, showed an understanding of his
duty to provide for his family, albeit he did not meet with much success. Whether his failure was
brought about by his own indolence or irresponsibility, or by some other external factors, is not
relevant. What is clear is that respondent, in showing an awareness to provide for his family,
even with his many failings, does not suffer from psychological incapacity.

Article 36 contemplates incapacity or inability to take cognizance of and to assume basic marital
obligations and not merely difficulty, refusal, or neglect in the performance of marital obligations
or ill will.[51] This incapacity consists of the following: (a) a true inability to commit oneself to
the essentials of marriage; (b) this inability to commit oneself must refer to the essential
obligations of marriage: the conjugal act, the community of life and love, the rendering of mutual
help, the procreation and education of offspring; and (c) the inability must be tantamount to a
psychological abnormality.[52] It is not enough to prove that a spouse failed to meet his
responsibility and duty as a married person; it is essential that he must be shown to be incapable
of doing so due to some psychological illness.[53]

That respondent, according to petitioner, lack[ed] effective sense of rational judgment and
responsibility[54] does not mean he is incapable to meet his marital obligations. His refusal to
help care for the children, his neglect for his business ventures, and his alleged unbearable
jealousy may indicate some emotional turmoil or mental difficulty, but none have been shown to
amount to a psychological abnormality.

Moreover, even assuming that respondents faults amount to psychological incapacity, it has not
been established that the same existed at the time of the celebration of the marriage.

In his psychological report,[55] Dr. Tolentino merely said, [b]ecause ones personality or
character is formed early in life, it has a clear ANTECEDENT and it has an enduring pattern of
inner experience that deviates from the expectations of the individuals culture,[56] without
explaining this antecedent. Even petitioner, in her allegations, never explained how the alleged
psychological incapacity manifested itself prior to or at the time of the celebration of their
marriage.

Likewise militating against petitioners cause is the finding of the trial court, and the same was
affirmed by the CA, that respondent never committed infidelity or physically abused petitioner or
their children. In fact, considering that the children lived with both parents, it is safe to assume
that both made an impact in the childrens upbringing. And still, as found by the RTC and the
CA, the parties were able to raise three children into adulthood without any major parenting
problems.[57] Such fact could hardly support a proposition that the parties marriage is a nullity.

Respondent may not have turned out to be the ideal husband, or may have failed to meet
petitioners exacting standards. Yet this Court finds it impossible to believe that, as petitioner
alleges, there was nothing but heartache and strife in their over 35 years (prior to filing the
petition for declaration of nullity) of marriage.

To be sure, respondent, perhaps with a little more effort on his part, could have been more
helpful and could have made life that much easier for his wife. The fact that he did not, however,
does not mean that he is psychologically incapacitated to discharge his marital obligations, as to
give the Court a reason to declare the marriage null and void.

Certainly, the marriage was beset by difficulties, or as petitioner puts it, marred by bickerings,
quarrels, and recrimination. It is a fact, however, that all marriages suffer through the same
trials at one point or another, with some going through more rough patches than others. The
Court concedes that petitioner and respondents marriage, as characterized by the former, may
indeed be problematic, even tumultuous. However, that they had gone through 35 years together
as husband and wife is an indication that the parties can, should they choose to do so, work
through their problems.

WHEREFORE, the foregoing premises considered, the petition is DENIED. The Decision
dated April 16, 2008 and the Resolution dated August 4, 2008 of the Court of Appeals in CA-
G.R. CV No. 89262 are AFFIRMED.

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 already dead." 6

The present case was filed before the trial court pursuant to Article 41 of the Family Code which
provides that:

Art. 41. A marriage contracted by any person during the subsistence of a previous
marriage shall be null and void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four consecutive years and the
spouse present had a well-founded belief that the absent spouse was already
dead. In case of disappearance where there is danger of death under the
circumstances set forth in the provision of Article 391 of the Civil Code, an
absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding
paragraph, the spouse present must institute a summary proceeding as provided in
 this Code for the declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse. (Emphasis supplied).

When Article 41 is compared with the old provision of the Civil Code, which it superseded, 7 the
following crucial differences emerge. Under Article 41, the time required for the presumption to
arise has been shortened to four (4) years; however, there is need for a judicial declaration of
presumptive death to enable the spouse present to remarry. 8 Also, Article 41 of the Family Code
imposes a stricter standard than the Civil Code: Article 83 of the Civil Code merely requires
either that there be no news that such absentee is still alive; or the absentee is generally
considered to be dead and believed to be so by the spouse present, or is presumed dead under
Article 390 and 391 of the Civil Code. 9 The Family Code, upon the other hand, prescribes as
"well founded belief" that the absentee is already dead before a petition for declaration of
presumptive death can be granted.

As pointed out by the Solicitor-General, there are four (4) requisites for the declaration of
presumptive death under Article 41 of the Family Code:

1. That the absent spouse has been missing for four consecutive years, or two
consecutive years if the disappearance occurred where there is danger of death
under the circumstances laid down in Article 391, Civil Code;

2. That the present spouse wishes to remarry;

3. That the present spouse has a well-founded belief that the absentee is dead; and

4. That the present spouse files a summary proceeding for the declaration of
presumptive death of the absentee. 10

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

Petitioner's argument, upon the other hand, boils down to this: that respondent failed to prove
that he had complied with the third requirement, i.e., the existence of a "well-founded belief" that
the absent spouse is already dead.

The Court believes that respondent Nolasco failed to conduct a search for his missing wife with
such diligence as to give rise to a "well-founded belief" that she is dead.

United States v. Biasbas, 12 is instructive as to degree of diligence required in searching for a

missing spouse. In that case, defendant Macario Biasbas was charged with the crime of bigamy.
He set-up the defense of a good faith belief that his first wife had already died. The Court held
that defendant had not exercised due diligence to ascertain the whereabouts of his first wife,
noting that:

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

In the case at bar, the Court considers that the investigation allegedly conducted by respondent in
his attempt to ascertain Janet Monica Parker's whereabouts is too sketchy to form the basis of a
reasonable or well-founded belief that she was already dead. When he arrived in San Jose,
Antique after learning of Janet Monica's departure, instead of seeking the help of local
authorities or of the British Embassy, 14 he secured another seaman's contract and went to
London, a vast city of many millions of inhabitants, to look for her there.

Q After arriving here in San Jose, Antique, did you exert efforts to
inquire the whereabouts of your wife?

A Yes, Sir.

Court:

How did you do that?

A I secured another contract with the ship and we had a trip to

London and I went to London to look for her I could not find her
(sic). 15 (Emphasis supplied)

Respondent's testimony, however, showed that he confused London for Liverpool and this casts
doubt on his supposed efforts to locate his wife in England. The Court of Appeal's justification of
the mistake, to wit:

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

is not well taken. There is no analogy between Manila and its neighboring cities, on one hand,
and London and Liverpool, on the other, which, as pointed out by the Solicitor-General, are
around three hundred fifty (350) kilometers apart. We do not consider that walking into a major
city like Liverpool or London with a simple hope of somehow bumping into one particular
person there which is in effect what Nolasco says he did can be regarded as a reasonably
diligent search.

The Court also views respondent's claim that Janet Monica declined to give any information as to
her personal background even after she had married respondent 17 too convenient an excuse to
justify his failure to locate her. The same can be said of the loss of the alleged letters respondent
had sent to his wife which respondent claims were all returned to him. Respondent said he had
lost these returned letters, under unspecified circumstances.

Neither can this Court give much credence to respondent's bare assertion that he had inquired
from their friends of her whereabouts, considering that respondent did not identify those friends
in his testimony. The Court of Appeals ruled that since the prosecutor failed to rebut this
evidence during trial, it is good evidence. But this kind of evidence cannot, by its nature, be
rebutted. In any case, admissibility is not synonymous with credibility. 18 As noted before, there
are serious doubts to respondent's credibility. Moreover, even if admitted as evidence, said
testimony merely tended to show that the missing spouse had chosen not to communicate with
their common acquaintances, and not that she was dead.

Respondent testified that immediately after receiving his mother's letter sometime in January
1983, he cut short his employment contract to return to San Jose, Antique. However, he did not
explain the delay of nine (9) months from January 1983, when he allegedly asked leave from his
captain, to November 1983 when be finally reached San Jose. Respondent, moreover, claimed he
married Janet Monica Parker without inquiring about her parents and their place of residence. 19
Also, respondent failed to explain why he did not even try to get the help of the police or other
authorities in London and Liverpool in his effort to find his wife. The circumstances of Janet
Monica's departure and respondent's subsequent behavior make it very difficult to regard the
claimed belief that Janet Monica was dead a well-founded one.

In Goitia v. Campos-Rueda, 20 the Court stressed that:

. . . Marriage is an institution, the maintenance of which in its purity the public is

deeply interested. It is a relationship for life and the parties cannot terminate it at
any shorter period by virtue of any contract they make. . . . . 21 (Emphasis
supplied)

By the same token, the spouses should not be allowed, by the simple expedient of agreeing that
one of them leave the conjugal abode and never to return again, to circumvent the policy of the
laws on marriage. The Court notes that respondent even tried to have his marriage annulled
before the trial court in the same proceeding.

In In Re Szatraw, 22 the Court warned against such collusion between the parties when they find
it impossible to dissolve the marital bonds through existing legal means.

While the Court understands the need of respondent's young son, Gerry Nolasco, for maternal
care, still the requirements of the law must prevail. Since respondent failed to satisfy the clear
requirements of the law, his petition for a judicial declaration of presumptive death must be
denied. The law does not view marriage like an ordinary contract. Article 1 of the Family Code
emphasizes that.

. . . Marriage is a special contract of permanent union between a man and a

woman entered into in accordance with law for the establishment of conjugal and
family life. It is the foundation of the family and an inviolable social institution
 whose nature, consequences, and incidents are governed by law and not subject to
stipulation, except that marriage settlements may fix the property relations during
the marriage within the limits provided by this Code. (Emphasis supplied)

In Arroyo, Jr. v. Court of Appeals, 23 the Court stressed strongly the need to protect.

. . . the basic social institutions of marriage and the family in the preservation of
which the State bas the strongest interest; the public policy here involved is of the
most fundamental kind. In Article II, Section 12 of the Constitution there is set
forth the following basic state policy:

The State recognizes the sanctity of family life and shall protect
and strengthen the family as a basic autonomous social
institution. . . .

The same sentiment bas been expressed in the Family Code of the Philippines in
Article 149:

The family, being the foundation of the nation, is a basic social

institution which public policy cherishes and protects.
Consequently, family relations are governed by law and no custom,
practice or agreement destructive of the family shall be recognized
or given effect. 24

In fine, respondent failed to establish that he had the well-founded belief required by law that his
absent wife was already dead that would sustain the issuance of a court order declaring Janet
Monica Parker presumptively dead.

WHEREFORE, the Decision of the Court of Appeals dated 23 February 1990, affirming the trial
court's decision declaring Janet Monica Parker presumptively dead is hereby REVERSED and
both Decisions are hereby NULLIFIED and SET ASIDE. Costs against respondent.

SECOND DIVISION

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:

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.

SECOND DIVISION

REPUBLIC OF THE PHILIPPINES, G.R. No. 159614

Petitioner,

Present:

- versus - PUNO, J., Chairman,

AUSTRIA-MARTINEZ,

CALLEJO, SR.,

THE HONORABLE COURT OF TINGA, and

APPEALS (TENTH DIVISION) CHICO-NAZARIO, JJ.

and ALAN B. ALEGRO,

Respondents.

Promulgated:

December 9, 2005

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

DECISION

CALLEJO, SR., J.:

On March 29, 2001, Alan B. Alegro filed a petition in the Regional Trial Court (RTC) of

Catbalogan, Samar, Branch 27, for the declaration of presumptive death of his wife, Rosalia

(Lea) A. Julaton.

In an Order[1] dated April 16, 2001, the court set the petition for hearing on May 30,

2001 at 8:30 a.m. and directed that a copy of the said order be published once a week for three
(3) consecutive weeks in the Samar Reporter, a newspaper of general circulation in the Province

of Samar, and
 that a copy be posted in the courts bulletin board for at least three weeks before the next

scheduled hearing. The court also directed that copies of the order be served on the Solicitor

General, the Provincial Prosecutor of Samar, and Alan, through counsel, and that copies be sent

to Lea by registered mail. Alan complied with all the foregoing jurisdictional requirements.[2]

On May 28, 2001, the Republic of the Philippines, through the Office of the Solicitor

General (OSG), filed a Motion to Dismiss[3] the petition, which was, however, denied by the

court for failure to comply with Rule 15 of the Rules of Court.[4]

At the hearing, Alan adduced evidence that he and Lea were married on January 20, 1995

in Catbalogan, Samar.[5] He testified that, on February 6, 1995, Lea arrived home late in the

evening and he berated her for being always out of their house. He told her that if she enjoyed

the life of a single person, it would be better for her to go back to her parents.[6] Lea did not

reply. Alan narrated that, when he reported for work the following day, Lea was still in the

house, but when he arrived home later in the day, Lea was nowhere to be found.[7] Alan thought

that Lea merely went to her parents house in Bliss, Sto. Nio, Catbalogan, Samar.[8] However,

Lea did not return to their house anymore.

Alan further testified that, on February 14, 1995, after his work, he went to the house of

Leas parents to see if she was there, but he was told that she was not there. He also went to the

house of Leas friend, Janeth Bautista, at Barangay Canlapwas, but he was informed by Janettes
brother-in-law, Nelson Abaenza, that Janeth had left for Manila.[9] When Alan went back to the

house of his parents-in-law, he learned from his father-in-law that Lea had been to their house

but that she left without notice.[10] Alan sought the help of Barangay Captain Juan Magat, who

promised to help him locate his wife. He also inquired from his friends of Leas whereabouts but

to no avail.[11]

Sometime in June 1995, he decided to go to Manila to look for Lea, but his mother asked

him to leave after the town fiesta of Catbalogan, hoping that Lea may come home for the fiesta.

Alan agreed.[12] However, Lea did not show up. Alan then left for Manila on August 27, 1995.

He went to a house in Navotas where Janeth, Leas friend, was staying. When asked where Lea

was, Janeth told him that she had not seen her.[13] He failed to find out Leas whereabouts

despite his repeated talks with Janeth. Alan decided to work as a part-time taxi driver. On his

free time, he would look for Lea in the malls but still to no avail. He returned to Catbalogan in

1997 and again looked for his wife but failed.[14]

On June 20, 2001, Alan reported Leas disappearance to the local police station.[15] The

police authorities issued an Alarm Notice on July 4, 2001.[16] Alan also reported Leas

disappearance to the National Bureau of Investigation (NBI) on July 9, 2001.[17]

Barangay Captain Juan Magat corroborated the testimony of Alan. He declared that on

February 14, 1995, at 2:00 p.m., Alan inquired from him if Lea passed by his house and he told

Alan that she did not. Alan also told him that Lea had disappeared. He had not seen Lea in the
barangay ever since.[18] Leas father, who was his compadre and the owner of Radio DYMS,

told him that he did not know where Lea was.[19]

After Alan rested his case, neither the Office of the Provincial Prosecutor nor the Solicitor

General adduced evidence in opposition to the petition.

On January 8, 2002, the court rendered judgment granting the petition. The fallo of the

decision reads:

WHEREFORE, and in view of all the foregoing, petitioners absent

spouse ROSALIA JULATON is hereby declared PRESUMPTIVELY DEAD for
the purpose of the petitioners subsequent marriage under Article 41 of the Family
Code of the Philippines, without prejudice to the effect of reappearance of the said
absent spouse.

SO ORDERED.[20]

The OSG appealed the decision to the Court of Appeals (CA) which rendered judgment on

August 4, 2003, affirming the decision of the RTC.[21] The CA cited the ruling of this Court in

Republic v. Nolasco.[22]

The OSG filed a petition for review on certiorari of the CAs decision alleging that

respondent Alan B. Alegro failed to prove that he had a well-founded belief that Lea was already

dead.[23] It averred that the respondent failed to exercise reasonable and diligent efforts to
locate his wife. The respondent even admitted that Leas father told him on February 14, 1995

that Lea had been to their house but left without notice. The OSG pointed out that the

respondent reported his wifes disappearance to the local police and also to the NBI only after

the petitioner filed a motion to dismiss the petition. The petitioner avers that, as gleaned from

the evidence, the respondent did not really want to find and locate Lea. Finally, the petitioner

averred:

In view of the summary nature of proceedings under Article 41 of the

Family Code for the declaration of presumptive death of ones spouse, the degree
of due diligence set by this Honorable Court in the above-mentioned cases in
locating the whereabouts of a missing spouse must be strictly complied with.
There have been times when Article 41 of the Family Code had been resorted to
by parties wishing to remarry knowing fully well that their alleged missing
spouses are alive and well. It is even possible that those who cannot have their
marriages x x x declared null and void under Article 36 of the Family Code resort
to Article 41 of the Family Code for relief because of the x x x summary nature of
its proceedings.

It is the policy of the State to protect and strengthen the family as a basic
social institution. Marriage is the foundation of the family. Since marriage is an
inviolable social institution that the 1987 Constitution seeks to protect from
dissolution at the whim of the parties. For respondents failure to prove that he
had a well-founded belief that his wife is already
 dead and that he exerted the required amount of diligence in searching for
his missing wife, the petition for declaration of presumptive death should have
been denied by the trial court and the Honorable Court of Appeals.[24]

The petition is meritorious.

Article 41 of the Family Code of the Philippines reads:

Art. 41. A marriage contracted by any person during the subsistence of a

previous marriage shall be null and void, unless before the celebration of the
subsequent marriage, the prior spouse had been absent for four consecutive years
and the spouse present had a well-founded belief that the absent spouse was
already dead. In case of disappearance where there is danger under the
circumstances set forth in the provisions of Article 391 of the Civil Code, an
absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the

preceding paragraph, the spouse present must institute a summary proceeding as
provided in this Code for the declaration of presumptive death of the absentee,
without prejudice to the effect of reappearance of the absent spouse.[25]

The spouse present is, thus, burdened to prove that his spouse has been absent and that he

has a well-founded belief that the absent spouse is already dead before the present spouse may

contract a subsequent marriage. The law does not define what is meant by a well-grounded

belief. Cuello Callon writes that es menester que su creencia sea firme se funde en motivos

racionales.[26]

Belief is a state of the mind or condition prompting the doing of an overt act. It may be

proved by direct evidence or circumstantial evidence which may tend, even in a slight degree, to

elucidate the inquiry or assist to a determination probably founded in truth. Any fact or
circumstance relating to the character, habits, conditions, attachments, prosperity and objects of

life which usually control the conduct of men, and are the motives of their actions, was, so far as

it tends to explain or characterize their disappearance or throw light on their intentions,[27]

competence evidence on the ultimate question of his death.

The belief of the present spouse must be the result of proper and honest to goodness

inquiries and efforts to ascertain the whereabouts of the absent spouse and whether the absent

spouse is still alive or is already dead. Whether or not the spouse present acted on a well-founded

belief of death of the absent spouse depends upon the inquiries to be drawn from a great many

circumstances occurring before and after the disappearance of the absent spouse and the nature

and extent of the inquiries made by present spouse.[28]

Although testimonial evidence may suffice to prove the well-founded belief of the present

spouse that the absent spouse is already dead, in Republic v. Nolasco,[29] the Court warned

against collusion between the parties when they find it impossible to dissolve the marital bonds

through existing legal means. It is also the maxim that men readily believe what they wish to

be true.

In this case, the respondent failed to present a witness other than Barangay Captain Juan

Magat. The respondent even failed to present Janeth Bautista or Nelson Abaenza or any other

person from whom he allegedly made inquiries about Lea to corroborate his testimony. On the

other hand, the respondent admitted that when he returned to the house of his parents-in-law on
February 14, 1995, his father-in-law told him that Lea had just been there but that she left

without notice.

The respondent declared that Lea left their abode on February 7, 1995 after he chided her

for coming home late and for being always out of their house, and told her that it would be better

for her to go home to her parents if she enjoyed the life of a single person. Lea, thus, left their

conjugal abode and never returned. Neither did she communicate with the respondent after

leaving the conjugal abode because of her resentment to the chastisement she received from him

barely a month after their marriage. What is so worrisome is that, the respondent failed to make

inquiries from his parents-in-law regarding Leas whereabouts before filing his petition in the

RTC. It could have enhanced the credibility of the respondent had he made inquiries from his

parents-in-law about Leas whereabouts considering that Leas father was the owner of Radio

DYMS.

The respondent did report and seek the help of the local police authorities and the NBI to

locate Lea, but it was only an afterthought. He did so only after the OSG filed its notice to

dismiss his petition in the RTC.

In sum, the Court finds and so holds that the respondent failed to prove that he had a

well-founded belief, before he filed his petition in the RTC, that his spouse Rosalia (Lea) Julaton

was already dead.

 IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of

the Court of Appeals in CA-G.R. CV No. 73749 is REVERSED and SET ASIDE.

Consequently, the Regional Trial Court of Catbalogan, Samar, Branch 27, is ORDERED to

DISMISS the respondents petition.

THIRD DIVISION

ANGELITA VALDEZ, G.R. No. 180863

Petitioner,

Present:

YNARES-SANTIAGO, J.,

Chairperson,

- versus - CHICO-NAZARIO,

VELASCO, JR.,

NACHURA, and

PERALTA, JJ.

Promulgated:

REPUBLIC OF THE PHILIPPINES,

Respondent. September 8, 2009

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

DECISION

NACHURA, J.:

Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court assailing the Decision of the Regional Trial Court (RTC) of Camiling, Tarlac dated
November 12, 2007 dismissing petitioner Angelita Valdezs petition for the declaration of
presumptive death of her husband, Sofio Polborosa (Sofio).

The facts of the case are as follows:

Petitioner married Sofio on January 11, 1971 in Pateros, Rizal. On December 13, 1971,
petitioner gave birth to the spouses only child, Nancy. According to petitioner, she and Sofio
argued constantly because the latter was unemployed and did not bring home any money. In
March 1972, Sofio left their conjugal dwelling. Petitioner and their child waited for him to return
but, finally, in May 1972, petitioner decided to go back to her parents home in Bancay 1st,
Camiling, Tarlac. Three years passed without any word from Sofio. In October 1975, Sofio
showed up at Bancay 1st. He and petitioner talked for several hours and they agreed to separate.
They executed a document to that effect. That was the last time petitioner saw him. After that,
petitioner didnt hear any news of Sofio, his whereabouts or even if he was alive or not.

Believing that Sofio was already dead, petitioner married Virgilio Reyes on June 20,
1985. Subsequently, however, Virgilios application for naturalization filed with the United
States Department of Homeland Security was denied because petitioners marriage to Sofio was
subsisting. Hence, on March 29, 2007, petitioner filed a Petition before the RTC of Camiling,
Tarlac seeking the declaration of presumptive death of Sofio.

The RTC rendered its Decision on November 12, 2007, dismissing the Petition for lack of
merit. The RTC held that Angelita was not able to prove the well-grounded belief that her
husband Sofio Polborosa was already dead. It said that under Article 41 of the Family Code, the
present spouse is burdened to prove that her spouse has been absent and that she has a well-
founded belief that the absent spouse is already dead before the present spouse may contract a
subsequent marriage. This belief, the RTC said, must be the result of proper and honest-to-
goodness inquiries and efforts to ascertain the whereabouts of the absent spouse.

The RTC found that, by petitioners own admission, she did not try to find her husband
anymore in light of their mutual agreement to live separately. Likewise, petitioners daughter
testified that her mother prevented her from looking for her father. The RTC also said there is a
strong possibility that Sofio is still alive, considering that he would have been only 61 years old
by then, and people who have reached their 60s have not become increasingly low in health and
spirits, and, even assuming as true petitioners testimony that Sofio was a chain smoker and a
drunkard, there is no evidence that he continues to drink and smoke until now.
 Petitioner filed a motion for reconsideration. She argued that it is the Civil Code that
applies in this case and not the Family Code since petitioners marriage to Sofio was celebrated
on January 11, 1971, long before the Family Code took effect. Petitioner further argued that she
had acquired a vested right under the provisions of the Civil Code and the stricter provisions of
the Family Code should not be applied against her because Title XIV of the Civil Code, where
Articles 384 and 390 on declaration of absence and presumption of death, respectively, can be
found, was not expressly repealed by the Family Code. To apply the stricter provisions of the
Family Code will impair the rights petitioner had acquired under the Civil Code.

The RTC denied the Motion for Reconsideration in a Resolution dated December 10,
2007.

Petitioner now comes before this Court seeking the reversal of the RTC Decision and
Motion for Reconsideration.

In its Manifestation and Motion, the Office of the Solicitor General (OSG) recommended
that the Court set aside the assailed RTC Decision and grant the Petition to declare Sofio
presumptively dead. The OSG argues that the requirement of well-founded belief under Article
41 of the Family Code is not applicable to the instant case. It said that petitioner could not be
expected to comply with this requirement because it was not yet in existence during her marriage
to Virgilio Reyes in 1985. The OSG further argues that before the effectivity of the Family Code,
petitioner already acquired a vested right as to the validity of her marriage to Virgilio Reyes
based on the presumed death of Sofio under the Civil Code. This vested right and the
presumption of Sofios death, the OSG posits, could not be affected by the obligations created
under the Family Code.
 Next, the OSG contends that Article 390 of the Civil Code was not repealed by Article 41
of the Family Code. Title XIV of the Civil Code, the OSG said, was not one of those expressly
repealed by the Family Code. Moreover, Article 256 of the Family Code provides that its
provisions shall not be retroactively applied if they will prejudice or impair vested or acquired
rights.

The RTC Decision, insofar as it dismissed the Petition, is affirmed. However, we must
state that we are denying the Petition on grounds different from those cited in the RTC Decision.

Initially, we discuss a procedural issue. Under the Rules of Court, a party may directly
appeal to this Court from a decision of the trial court only on pure questions of law. A question of
law lies, on one hand, when the doubt or difference arises as to what the law is on a certain set of
facts; on the other hand, a question of fact exists when the doubt or difference arises as to the
truth or falsehood of the alleged facts. Here, the facts are not disputed; the controversy merely
relates to the correct application of the law or jurisprudence to the undisputed facts.

The RTC erred in applying the provisions of the Family Code and holding that petitioner
needed to prove a well-founded belief that Sofio was already dead. The RTC applied Article 41
of the Family Code, to wit:

Art. 41. A marriage contracted by any person during subsistence of a

previous marriage shall be null and void, unless before the celebration of the
subsequent marriage, the prior spouse had been absent for four consecutive years
and the spouse present has a well-founded belief that the absent spouse was
already dead. In case of disappearance where there is danger 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 a 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.

It is readily apparent, however, that the marriages of petitioner to Sofio and Virgilio on
January 11, 1971 and June 20, 1985, respectively, were both celebrated under the auspices of the
Civil Code.
 The pertinent provision of the Civil Code is Article 83:

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, of 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.

Article 390 of the Civil Code states:

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.

The Court, on several occasions, had interpreted the above-quoted provision in this
wise:
 For the purposes of the civil marriage law, it is not necessary to have the former
spouse judicially declared an absentee. The declaration of absence made in
accordance with the provisions of the Civil Code has for its sole purpose to enable
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 has 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.

Further, the Court explained that presumption of death cannot be the subject of court proceedings
independent of the settlement of the absentees estate.

In re Szatraw is instructive. In that case, petitioner contracted marriage with a Polish

national in 1937. They lived together as husband and wife for three years. Sometime in 1940, the
husband, on the pretext of visiting some friends, left the conjugal abode with their child and
never returned. After inquiring from friends, petitioner found that her husband went to Shanghai,
China. However, friends who came from Shanghai told her that the husband was not seen there.
In 1948, petitioner filed a petition for the declaration of presumptive death of her husband
arguing that since the latter had been absent for more than seven years and she had not heard any
news from him and about her child, she believes that he is dead. In deciding the case, the Court
said:

The petition is not for the settlement of the estate of Nicolai Szatraw,
because it does not appear that he possessed property brought to the marriage and
because he had acquired no property during his married life with the petitioner.
The rule invoked by the latter is merely one of evidence which permits the court
to presume that a person is dead after the fact that such person had been unheard
from in seven years had been established. This presumption may arise and be
invoked and made in a case, either in an action or in a special proceeding, which
is tried or heard by, and submitted for decision to, a competent court.
Independently of such an action or special proceeding, the presumption of
death cannot be invoked, nor can it be made the subject of an action or
special proceeding. In this case, there is no right to be enforced nor is there a
 remedy prayed for by the petitioner against her absent husband. Neither is there a
prayer for the final determination of his right or status or for the ascertainment of
a particular fact (Hagans v. Wislizenus, 42 Phil. 880), for the petition does not
pray for a declaration that the petitioner's husband is dead, but merely asks for a
declaration that he be presumed dead because he had been unheard from in seven
years. If there is any pretense at securing a declaration that the petitioner's
husband is dead, such a pretension cannot be granted because it is unauthorized.
The petition is for a declaration that the petitioner's husband is presumptively
dead. But this declaration, even if judicially made, would not improve the
petitioner's situation, because such a presumption is already established by law. A
judicial pronouncement to that effect, even if final and executory, would still
be a prima facie presumption only. It is still disputable. It is for that reason
that it cannot be the subject of a judicial pronouncement or declaration, if it
is the only question or matter involved in a case, or upon which a competent
court has to pass. The latter must decide finally the controversy between the
parties, or determine finally the right or status of a party or establish finally a
particular fact, out of which certain rights and obligations arise or may arise; and
once such controversy is decided by a final judgment, or such right or status
determined, or such particular fact established, by a final decree, then the
judgment on the subject of the controversy, or the decree upon the right or status
of a party or upon the existence of a particular fact, becomes res judicata, subject
to no collateral attack, except in a few rare instances especially provided by law. It
is, therefore, clear that a judicial declaration that a person is presumptively
dead, because he 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. Proof of actual death of the person presumed dead because he
had been unheard from in seven years, would have to be made in another
proceeding to have such particular fact finally determined. If a judicial decree
declaring a person presumptively dead, because he 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.

In Lukban v. Republic, petitioner Lourdes G. Lukban contracted marriage with Francisco

Chuidian on December 10, 1933. A few days later, on December 27, Francisco left Lourdes after
a violent quarrel. She did not hear from him after that day. Her diligent search, inquiries from
his parents and friends, and search in his last known address, proved futile. Believing her
husband was already dead since he had been absent for more than twenty years, petitioner filed a
petition in 1956 for a declaration that she is a widow of her husband who is presumed to be dead
and has no legal impediment to contract a subsequent marriage. On the other hand, the
antecedents in Gue v. Republic are similar to Szatraw. On January 5, 1946, Angelina Gues
husband left Manila where they were residing and went to Shanghai, China. From that day on, he
had not been heard of, had not written to her, nor in anyway communicated with her as to his
whereabouts. Despite her efforts and diligence, she failed to locate him. After 11 years, she asked
the court for a declaration of the presumption of death of Willian Gue, pursuant to the provisions
of Article 390 of the Civil Code of the Philippines.

In both cases, the Court reiterated its ruling in Szatraw. It held that a petition for judicial
declaration that petitioner's husband is presumed to be dead cannot be entertained because it is
not authorized by law.

From the foregoing, it can be gleaned that, under the Civil Code, the presumption of
death is established by law and no court declaration is needed for the presumption to arise. Since
death is presumed to have taken place by the seventh year of absence, Sofio is to be presumed
dead starting October 1982.

Consequently, at the time of petitioners marriage to Virgilio, there existed no

impediment to petitioners capacity to marry, and the marriage is valid under paragraph 2 of
Article 83 of the Civil Code.

Further, considering that it is the Civil Code that applies, proof of well-founded belief
is not required. Petitioner could not have been expected to comply with this requirement since
the Family Code was not yet in effect at the time of her marriage to Virgilio. The enactment of
the Family Code in 1988 does not change this conclusion. The Family Code itself states:
 Art. 256. This Code shall have retroactive effect insofar as it does not
prejudice or impair vested or acquired rights in accordance with the Civil Code or
other laws.

To retroactively apply the provisions of the Family Code requiring petitioner to exhibit
well-founded belief will, ultimately, result in the invalidation of her second marriage, which
was valid at the time it was celebrated. Such a situation would be untenable and would go against
the objectives that the Family Code wishes to achieve.

In sum, we hold that the Petition must be dismissed since no decree on the presumption of
Sofios death can be granted under the Civil Code, the same presumption having arisen by
operation of law. However, we declare that petitioner was capacitated to marry Virgilio at the
time their marriage was celebrated in 1985 and, therefore, the said marriage is legal and valid.

WHEREFORE, the foregoing premises considered, the Petition is DENIED.

THIRD DIVISION
LOLITA D. ENRICO, G.R. No. 173614

Petitioner,

Present:

YNARES-SANTIAGO, J.

Chairperson,
- versus -
AUSTRIA-MARTINEZ,

CHICO-NAZARIO,

NACHURA, and

REYES, JJ.
HEIRS OF SPS. EULOGIO B.
MEDINACELI AND TRINIDAD CATLI-
MEDINACELI, REPRESENTED BY
VILMA M. ARTICULO,

Respondents.
Promulgated:

September 28, 2007

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

DECISION

CHICO-NAZARIO, J.:
 The instant Petition for Certiorari filed under Rule 65 of the 1997 Rules of Civil
Procedure assails the Order, dated 3 May 2006 of the Regional Trial Court (RTC) of Aparri,
Cagayan, Branch 6, in Civil Case No. II-4057, granting reconsideration of its Order, dated 11
October 2005, and reinstating respondents Complaint for Declaration of Nullity of Marriage.

On 17 March 2005, respondents, heirs of Spouses Eulogio B. Medinaceli (Eulogio) and

Trinidad Catli-Medinaceli (Trinidad) filed with the RTC, an action for declaration of nullity of
marriage of Eulogio and petitioner Lolita D. Enrico. Substantially, the complaint alleged, inter
alia, that Eulogio and Trinidad were married on 14 June 1962, in Lal-lo, Cagayan. They begot
seven children, herein respondents, namely: Eduardo, Evelyn, Vilma, Mary Jane, Haizel,
Michelle and Joseph Lloyd. On 1 May 2004, Trinidad died. On 26 August 2004, Eulogio
married petitioner before the Municipal Mayor of Lal-lo, Cagayan. Six months later, or on 10
February 2005, Eulogio passed away.

In impugning petitioners marriage to Eulogio, respondents averred that the same was
entered into without the requisite marriage license. They argued that Article 34 of the Family
Code, which exempts a man and a woman who have been living together for at least five years
without any legal impediment from securing a marriage license, was not applicable to petitioner
and Eulogio because they could not have lived together under the circumstances required by said
provision. Respondents posited that the marriage of Eulogio to Trinidad was dissolved only
upon the latters death, or on 1 May 2004, which was barely three months from the date of
marriage of Eulogio to petitioner. Therefore, petitioner and Eulogio could not have lived
together as husband and wife for at least five years. To further their cause, respondents raised the
additional ground of lack of marriage ceremony due to Eulogios serious illness which made its
performance impossible.
 In her Answer, petitioner maintained that she and Eulogio lived together as husband and
wife under one roof for 21 years openly and publicly; hence, they were exempted from the
requirement of a marriage license. From their union were born Elvin Enrico and Marco Enrico,
all surnamed Medinaceli, on 28 October 1988 and 30 October 1991, respectively. She further
contended that the marriage ceremony was performed in the Municipal Hall of Lal-lo, Cagayan,
and solemnized by the Municipal Mayor. As an affirmative defense, she sought the dismissal of
the action on the ground that it is only the contracting parties while living who can file an action
for declaration of nullity of marriage.

On 11 October 2005, the RTC issued an Order, granting the dismissal of the Complaint for
lack of cause of action. It cited A.M. No. 02-11-10-SC, dated 7 March 2003, promulgated by the
Supreme Court En Banc as basis. The RTC elucidated on its position in the following manner:

The Complaint should be dismissed.

1) Administrative Matter No. 02-11-10-SC promulgated by the Supreme Court

which took effect on March 15, 2003 provides in Section 2, par. (a) that a petition
for Declaration of Absolute Nullity of a Void Marriage may be filed solely by the
husband or the wife. The language of this rule is plain and simple which states
that such a petition may be filed solely by the husband or the wife. The rule
is clear and unequivocal that only the husband or the wife may file the
petition for Declaration of Absolute Nullity of a Void Marriage. The reading
of this Court is that the right to bring such petition is exclusive and this right
solely belongs to them. Consequently, the heirs of the deceased spouse cannot
substitute their late father in bringing the action to declare the marriage null and
void. (Emphasis supplied.)

The dispositive portion of the Order, thus, reads:

 WHEREFORE, [the] Motion to Dismiss raised as an affirmative defense
in the answer is hereby GRANTED. Accordingly, the Complaint filed by the
[respondents] is hereby DISMISSED with costs de officio.

Respondents filed a Motion for Reconsideration thereof. Following the filing by petitioner
of her Comment to the said motion, the RTC rendered an Order dated 3 May 2006, reversing its
Order of 11 October 2005. Hence, the RTC reinstated the complaint on the ratiocination that the
assailed Order ignored the ruling in Nial v. Bayadog, which was on the authority for holding
that the heirs of a deceased spouse have the standing to assail a void marriage even after the
death of the latter. It held that Section 2(a) of A.M. No. 02-11-20-SC, which provides that a
petition for declaration of absolute nullity of void marriage may be filed solely by the husband or
the wife, applies only where both parties to a void marriage are still living. Where one or both
parties are deceased, the RTC held that the heirs may file a petition to declare the marriage void.
The RTC expounded on its stance, thus:

The questioned Order disregarded the case of Nial vs. Bayadog, 328 SCRA 122
(March 14, 2000) in which the Supreme Court, First Division, held that the heirs
of a deceased person may file a petition for the declaration of his marriage after
his death. The Order subject of this motion for reconsideration held that the case
of Nial vs. Bayadog is now superseded by the new Rule on Declaration of
Absolute Nullity of Marriages (hereinafter referred to as the Rule) because the
Supreme Court has rejected the case of Nial vs. Bayadog by approving the Rule
on Nullity of Void Marriages. The Order further held that it is only the husband
or the wife who is (sic) the only parties allowed to file an action for declaration of
nullity of their marriage and such right is purely personal and is not transmissible
upon the death of the parties.

It is admitted that there seems to be a conflict between the case of Nial

vs. Bayadog and Section 2(a) of the Rule. In view of this, the Court shall try to
reconcile the case of Nial vs. Bayadog and the Rule. To reconcile, the Court will
have to determine [the] basic rights of the parties. The rights of the legitimate
heirs of a person who entered into a void marriage will be prejudiced particularly
with respect to their successional rights. During the lifetime of the parent[,] the
heirs have only an inchoate right over the property of the said parents. Hence,
during the lifetime of the parent, it would be proper that it should solely be the
parent who should be allowed to file a petition to declare his marriage void.
However, upon the death of the parent his heirs have already a vested right over
whatever property left by the parent. Such vested right should not be frustrated
by any rules of procedure such as the Rule. Rules of Procedure cannot repeal
rights granted by substantive law. The heirs, then, have a legal standing in Court.

If the heirs are prohibited from questioning the void marriage entered by
their parent, especially when the marriage is illegal and feloniously entered into, it
will give premium to such union because the guilty parties will seldom, if ever at
all, ask for the annulment of the marriage. Such void marriage will be given a
semblance of validity if the heirs will not be allowed to file the petition after the
death of the parent.

For these reasons, this Court believes that Sec. 2(a) of the Rules on
Declaration of Absolute Nullity of Marriage is applicable only when both parties
to a (sic) void marriage are still living. Upon the death of anyone of the guilty
party to the void marriage, his heirs may file a petition to declare the the (sic)
marriage void, but the Rule is not applicable as it was not filed b the husband or
the wife. It shall be the ordinary rule of civil procedure which shall be applicable.

Perforce, the decretal portion of the RTC Order of 3 May 2006 states:

In view of the foregoing, the Court grants the motion for reconsideration
dated October 31, 2005 and reinstate this case.
 Aggrieved, petitioner filed a Motion for Reconsideration of the foregoing Order;
however, on 1 June 2006, the RTC denied the said motion on the ground that no new matter was
raised therein.

Hence, the instant Petition under Rule 65 of the 1997 Rules of Civil Procedure on the
sole question of whether the case law as embodied in Nial, or the Rule on Declaration of
Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, as specified in A.M.
No. 02-11-10-SC of the Supreme Court applies to the case at bar.

At the outset, we note that petitioner took an abbreviated route to this Court,
countenancing the hierarchy of courts.

We have earlier emphasized that while the Supreme Court has the concurrent jurisdiction
with the Court of Appeals and the RTCs (for writs enforceable within their respective regions), to
issue writs of mandamus, prohibition or certiorari, the litigants are well advised against taking a
direct recourse to this Court. Instead, they should initially seek the proper relief from the lower
courts. As a court of last resort, this Court should not be burdened with the task of dealing with
causes in the first instance. Where the issuance of an extraordinary writ is concurrently within
the competence of the Court of Appeals or the RTC, litigants must observe the principle of
hierarchy of courts. However, it cannot be gainsaid that this Court has the discretionary power to
brush aside procedural lapses if compelling reasons, or the nature and importance of the issues
raised, warrant the immediate exercise of its jurisdiction. Moreover, notwithstanding the
dismissibility of the instant Petition for its failure to observe the doctrine on the hierarchy of
courts, this Court will proceed to entertain the case grounded as it is on a pure question of law.
 Petitioner maintains that A.M. No. 02-11-10-SC governs the instant case. A contrario,
respondents posit that it is Nial which is applicable, whereby the heirs of the deceased person
were granted the right to file a petition for the declaration of nullity of his marriage after his
death.

We grant the Petition.

In reinstating respondents Complaint for Declaration of Nullity of Marriage, the RTC

acted with grave abuse of discretion.

While it is true that Nial in no uncertain terms allowed therein petitioners to file a
petition for the declaration of nullity of their fathers marriage to therein respondent after the
death of their father, we cannot, however, apply its ruling for the reason that the impugned
marriage therein was solemnized prior to the effectivity of the Family Code. The Court in Nial
recognized that the applicable law to determine the validity of the two marriages involved therein
is the Civil Code, which was the law in effect at the time of their celebration. What we have
before us belongs to a different milieu, i.e., the marriage sought to be declared void was entered
into during the effectivity of the Family Code. As can be gleaned from the facts, petitioners
marriage to Eulogio was celebrated in 2004.

The Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of

Voidable Marriages as contained in A.M. No. 02-11-10-SC is explicit in its scope, to wit:
 Section 1. Scope. This Rule shall govern petitions for declaration of
absolute nullity of void marriages and annulment of voidable marriages under the
Family Code of the Philippines.

The Rules of Court shall apply suppletorily. (Emphasis supplied.)

The categorical language of A.M. No. 02-11-10-SC leaves no room for doubt. The
coverage extends only to those marriages entered into during the effectivity of the Family Code
which took effect on 3 August 1988.

Moreover, A.M. No. 02-11-10-SC took effect on 15 March 2003, following its
publication in a newspaper of general circulation. Thus, contrary to the opinion of the RTC,
there is no need to reconcile the provisions of A.M. No. 02-11-10-SC with the ruling in Nial,
because they vary in scope and application. As has been emphasized, A.M. No. 02-11-10-SC
covers marriages under the Family Code of the Philippines, and is prospective in its application.
The marriage of petitioner to Eulogio was celebrated on 26 August 2004, and it squarely falls
within the ambit of A.M. No. 02-11-10-SC.

Hence, in resolving the issue before us, we resort to Section 2(a) of A.M. No. 02-11-10-
SC, which provides:

Section 2. Petition for declaration of absolute nullity of void marriages.

 (a) Who may file. A petition for declaration of absolute nullity of void
marriage may be filed solely by the husband or the wife. (n) (Emphasis
supplied.)

There is no ambiguity in the Rule. Absolute sententil expositore non indiget. When the
language of the law is clear, no explanation of it is required. Section 2(a) of A.M. No. 02-11-10-
SC, makes it the sole right of the husband or the wife to file a petition for declaration of
absolute nullity of void marriage.

The Rationale of the Rules on Annulment of Voidable Marriages and Declaration of

Absolute Nullity of Void Marriages, Legal Separation and Provisional Orders explicates on
Section 2(a) in the following manner, viz:

1. Only an aggrieved or injured spouse may file petitions for annulment of

voidable marriages and declaration of absolute nullity of void marriages. Such
petitions cannot be filed by the compulsory or intestate heirs of the spouses
or by the State. [Section 2; Section 3, paragraph a]

Only an aggrieved or injured spouse may file a petition for annulment

of voidable marriages or declaration of absolute nullity of void marriages.
Such petition cannot be filed by compulsory or intestate heirs of the spouses
or by the State. The Committee is of the belief that they do not have a legal
right to file the petition. Compulsory or intestate heirs have only inchoate
rights prior to the death of their predecessor, and hence can only question the
validity of the marriage of the spouses upon the death of a spouse in a
proceeding for the settlement of the estate of the deceased spouse filed in the
regular courts. On the other hand, the concern of the State is to preserve
marriage and not to seek its dissolution. (Emphasis supplied.)
 Respondents clearly have no cause of action before the court a quo. Nonetheless, all is
not lost for respondents. While A.M. No. 02-11-10-SC declares that a petition for declaration of
absolute nullity of void marriage may be filed solely by the husband or the wife, it does not mean
that the compulsory or intestate heirs are already without any recourse under the law. They can
still protect their successional right, for, as stated in the Rationale of the Rules on Annulment of
Voidable Marriages and Declaration of Absolute Nullity of Void Marriages, Legal Separation and
Provisional Orders, compulsory or intestate heirs can still question the validity of the marriage
of the spouses, not in a proceeding for declaration of nullity, but upon the death of a spouse in a
proceeding for the settlement of the estate of the deceased spouse filed in the regular courts.

WHEREFORE, the Petition is GRANTED. Civil Case No. II-4057 filed before the
Regional Trial Court of Aparri, Cagayan, Branch 6, is ORDERED DISMISSED without
prejudice to challenging the validity of the marriage of Lolita D. Enrico to Eulogio B.
Medinaceli in a proceeding for the settlement of the estate of the latter. No costs.

Republic of the Philippines

Supreme Court

Manila

THIRD DIVISION

JUAN DE DIOS CARLOS, G.R. No. 179922

 Petitioner,
Present:

- versus - YNARES-SANTIAGO, J.,

Chairperson,

AUSTRIA-MARTINEZ,
FELICIDAD SANDOVAL, also CHICO-NAZARIO,
known as FELICIDAD S. VDA. NACHURA, and
DE CARLOS or FELICIDAD REYES, JJ.
SANDOVAL CARLOS or
FELICIDAD SANDOVAL VDA.
DE CARLOS, and TEOFILO Promulgated:
CARLOS II,
Respondents. December 16, 2008

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

DECISION

REYES, R.T., J.:

ONLY a spouse can initiate an action to sever the marital bond for marriages solemnized
during the effectivity of the Family Code, except cases commenced prior to March 15, 2003.
The nullity and annulment of a marriage cannot be declared in a judgment on the pleadings,
summary judgment, or confession of judgment.

We pronounce these principles as We review on certiorari the Decision of the Court of

Appeals (CA) which reversed and set aside the summary judgment of the Regional Trial Court
(RTC) in an action for declaration of nullity of marriage, status of a child, recovery of property,
reconveyance, sum of money, and damages.
The Facts

The events that led to the institution of the instant suit are unveiled as follows:

Spouses Felix B. Carlos and Felipa Elemia died intestate. They left six parcels of land
to their compulsory heirs, Teofilo Carlos and petitioner Juan De Dios Carlos. The lots are
particularly described as follows:

Parcel No. 1

Lot No. 162 of the MUNTINLUPA ESTATE SUBDIVISION, Case No. 6137 of
the Court of Land Registration.

Exemption from the provisions of Article 567 of the Civil Code is specifically
reserved.

Area: 1 hectare, 06 ares, 07 centares.

Parcel No. 2

A parcel of land (Lot No. 159-B), being a portion of Lot 159, situated in the Bo.
of Alabang, Municipality of Muntinlupa, Province of Rizal, x x x containing an
area of Thirteen Thousand Four Hundred Forty One (13,441) square meters.

Parcel No. 3

A parcel of land (Lot 159-B-2 of the subd. plan [LRC] Psd-325903, approved as a
non-subd. project), being a portion of Lot 159-B [LRC] Psd- Alabang, Mun. of
Muntinlupa, Metro Manila, Island of Luzon. Bounded on the NE, points 2 to 4 by
Lot 155, Muntinlupa Estate; on the SE, point 4 to 5 by Lot 159-B-5; on the S,
points 5 to 1 by Lot 159-B-3; on the W, points 1 to 2 by Lot 159-B-1 (Road
widening) all of the subd. plan, containing an area of ONE HUNDRED THIRTY
(130) SQ. METERS, more or less.
 PARCEL No. 4

A parcel of land (Lot 28-C of the subd. plan Psd-13-007090, being a portion of
Lot 28, Muntinlupa Estate, L.R.C. Rec. No. 6137), situated in the Bo. of Alabang,
Mun. of Muntinlupa, Metro Manila. Bounded on the NE, along lines 1-2 by Lot
27, Muntinlupa Estate; on the East & SE, along lines 2 to 6 by Mangangata River;
and on the West., along line 6-1, by Lot 28-B of the subd. plan x x x containing an
area of ONE THUSAND AND SEVENTY-SIX (1,076) SQUARE METERS.

PARCEL No. 5

PARCELA DE TERRENO No. 50, Manzana No. 18, de la subd. de Solocan.

Linda por el NW, con la parcela 49; por el NE, con la parcela 36; por el SE, con la
parcela 51; y por el SW, con la calle Dos Castillas. Partiendo de un punto
marcado 1 en el plano, el cual se halla a S. gds. 01'W, 72.50 mts. Desde el punto 1
de esta manzana, que es un mojon de concreto de la Ciudad de Manila, situado on
el esquina E. que forman las Calles Laong Laan y Dos. Castillas, continiendo un
extension superficial de CIENTO CINCUENTA (150) METROS CUADRADOS.

PARCEL No. 6

PARCELA DE TERRENO No. 51, Manzana No. 18, de la subd. De Solocon.

Linda por el NW, con la parcela 50; por el NE, con la parcela 37; por el SE, con la
parcela 52; por el SW, con la Calle Dos Castillas. Partiendo de un punto Marcado
1 en el plano, el cual se halla at S. 43 gds. 01'E, 82.50 mts. Desde el punto 1 de
esta manzana, que es un mojon de concreto de la Ciudad de Manila, situado on el
esquina E. que forman las Calles Laong Laan y Dos. Castillas, continiendo una
extension superficial de CIENTO CINCUENTA (150) METROS CUADRADOS.

During the lifetime of Felix Carlos, he agreed to transfer his estate to Teofilo. The
agreement was made in order to avoid the payment of inheritance taxes. Teofilo, in turn,
undertook to deliver and turn over the share of the other legal heir, petitioner Juan De Dios
Carlos.
 Eventually, the first three (3) parcels of land were transferred and registered in the name
of Teofilo. These three (3) lots are now covered by Transfer Certificate of Title (TCT) No.
234824 issued by the Registry of Deeds of Makati City; TCT No. 139061 issued by the Registry
of Deeds of Makati City; and TCT No. 139058 issued by the Registry of Deeds of Makati City.

Parcel No. 4 was registered in the name of petitioner. The lot is now covered by TCT No.
160401 issued by the Registry of Deeds of Makati City.

On May 13, 1992, Teofilo died intestate. He was survived by respondents Felicidad and
their son, Teofilo Carlos II (Teofilo II). Upon Teofilos death, Parcel Nos. 5 & 6 were registered
in the name of respondent Felicidad and co-respondent, Teofilo II. The said two (2) parcels of
land are covered by TCT Nos. 219877 and 210878, respectively, issued by the Registry of Deeds
of Manila.

In 1994, petitioner instituted a suit against respondents before the RTC in Muntinlupa
City, docketed as Civil Case No. 94-1964. In the said case, the parties submitted and caused the
approval of a partial compromise agreement. Under the compromise, the parties acknowledged
their respective shares in the proceeds from the sale of a portion of the first parcel of land. This
includes the remaining 6,691-square-meter portion of said land.

On September 17, 1994, the parties executed a deed of extrajudicial partition, dividing
the remaining land of the first parcel between them.
 Meanwhile, in a separate case entitled Rillo v. Carlos, 2,331 square meters of the second
parcel of land were adjudicated in favor of plaintiffs Rillo. The remaining 10,000-square meter
portion was later divided between petitioner and respondents.

The division was incorporated in a supplemental compromise agreement executed on

August 17, 1994, with respect to Civil Case No. 94-1964. The parties submitted the
supplemental compromise agreement, which was approved accordingly.

Petitioner and respondents entered into two more contracts in August 1994. Under the
contracts, the parties equally divided between them the third and fourth parcels of land.

In August 1995, petitioner commenced an action, docketed as Civil Case No. 95-135,
against respondents before the court a quo with the following causes of action: (a) declaration of
nullity of marriage; (b) status of a child; (c) recovery of property; (d) reconveyance; and (e) sum
of money and damages. The complaint was raffled to Branch 256 of the RTC in Muntinlupa.

In his complaint, petitioner asserted that the marriage between his late brother Teofilo and
respondent Felicidad was a nullity in view of the absence of the required marriage license. He
likewise maintained that his deceased brother was neither the natural nor the adoptive father of
respondent Teofilo Carlos II.

Petitioner likewise sought the avoidance of the contracts he entered into with respondent
Felicidad with respect to the subject real properties. He also prayed for the cancellation of the
certificates of title issued in the name of respondents. He argued that the properties covered by
such certificates of title, including the sums received by respondents as proceeds, should be
reconveyed to him.
 Finally, petitioner claimed indemnification as and by way of moral and exemplary
damages, attorneys fees, litigation expenses, and costs of suit.

On October 16, 1995, respondents submitted their answer. They denied the material
averments of petitioners complaint. Respondents contended that the dearth of details regarding
the requisite marriage license did not invalidate Felicidads marriage to Teofilo. Respondents
declared that Teofilo II was the illegitimate child of the deceased Teofilo Carlos with another
woman.

On the grounds of lack of cause of action and lack of jurisdiction over the subject matter,
respondents prayed for the dismissal of the case before the trial court. They also asked that their
counterclaims for moral and exemplary damages, as well as attorneys fees, be granted.

But before the parties could even proceed to pre-trial, respondents moved for summary
judgment. Attached to the motion was the affidavit of the justice of the peace who solemnized
the marriage. Respondents also submitted the Certificate of Live Birth of respondent Teofilo II.
In the certificate, the late Teofilo Carlos and respondent Felicidad were designated as parents.

On January 5, 1996, petitioner opposed the motion for summary judgment on the ground
of irregularity of the contract evidencing the marriage. In the same breath, petitioner lodged his
own motion for summary judgment. Petitioner presented a certification from the Local Civil
Registrar of Calumpit, Bulacan, certifying that there is no record of birth of respondent Teofilo
II.
 Petitioner also incorporated in the counter-motion for summary judgment the testimony
of respondent Felicidad in another case. Said testimony was made in Civil Case No. 89-2384,
entitled Carlos v. Gorospe, before the RTC Branch 255, Las Pias. In her testimony, respondent
Felicidad narrated that co-respondent Teofilo II is her child with Teofilo.

Subsequently, the Office of the City Prosecutor of Muntinlupa submitted to the trial court
its report and manifestation, discounting the possibility of collusion between the parties.

RTC and CA Dispositions

On April 8, 1996, the RTC rendered judgment, disposing as follows:

WHEREFORE, premises considered, defendants (respondents) Motion

for Summary Judgment is hereby denied. Plaintiffs (petitioners) Counter-Motion
for Summary Judgment is hereby granted and summary judgment is hereby
rendered in favor of plaintiff as follows:

1. Declaring the marriage between defendant Felicidad Sandoval and

Teofilo Carlos solemnized at Silang, Cavite on May 14, 1962, evidenced by the
Marriage Certificate submitted in this case, null and void ab initio for lack of the
requisite marriage license;

2. Declaring that the defendant minor, Teofilo S. Carlos II, is not the
natural, illegitimate, or legally adopted child of the late Teofilo E. Carlos;

3. Ordering defendant Sandoval to pay and restitute to plaintiff the

sum of P18,924,800.00 together with the interest thereon at the legal rate from
date of filing of the instant complaint until fully paid;

4. Declaring plaintiff as the sole and exclusive owner of the parcel of

land, less the portion adjudicated to plaintiffs in Civil Case No. 11975, covered by
TCT No. 139061 of the Register of Deeds of Makati City, and ordering said
 Register of Deeds to cancel said title and to issue another title in the sole name of
plaintiff herein;

5. Declaring the Contract, Annex K of complaint, between plaintiff

and defendant Sandoval null and void, and ordering the Register of Deeds of
Makati City to cancel TCT No. 139058 in the name of Teofilo Carlos, and to issue
another title in the sole name of plaintiff herein;

6. Declaring the Contract, Annex M of the complaint, between

plaintiff and defendant Sandoval null and void;

7. Ordering the cancellation of TCT No. 210877 in the names of

defendant Sandoval and defendant minor Teofilo S. Carlos II and ordering the
Register of Deeds of Manila to issue another title in the exclusive name of
plaintiff herein;

8. Ordering the cancellation of TCT No. 210878 in the name of

defendant Sandoval and defendant Minor Teofilo S. Carlos II and ordering the
Register of Deeds of Manila to issue another title in the sole name of plaintiff
herein.

Let this case be set for hearing for the reception of plaintiffs evidence on
his claim for moral damages, exemplary damages, attorneys fees, appearance
fees, and litigation expenses on June 7, 1996 at 1:30 o'clock in the afternoon.

SO ORDERED.

Dissatisfied, respondents appealed to the CA. In the appeal, respondents argued, inter
alia, that the trial court acted without or in excess of jurisdiction in rendering summary judgment
annulling the marriage of Teofilo, Sr. and Felicidad and in declaring Teofilo II as not an
illegitimate child of Teofilo, Sr.

On October 15, 2002, the CA reversed and set aside the RTC ruling, disposing as follows:
 WHEREFORE, the summary judgment appealed from is REVERSED and
SET ASIDE and in lieu thereof, a new one is entered REMANDING the case to
the court of origin for further proceedings.

SO ORDERED.

The CA opined:

We find the rendition of the herein appealed summary judgment by the

court a quo contrary to law and public policy as ensconced in the aforesaid
safeguards. The fact that it was appellants who first sought summary judgment
from the trial court, did not justify the grant thereof in favor of appellee. Not
being an action to recover upon a claim or to obtain a declaratory relief, the
rule on summary judgment apply (sic) to an action to annul a marriage. The mere
fact that no genuine issue was presented and the desire to expedite the
disposition of the case cannot justify a misinterpretation of the rule. The first
paragraph of Article 88 and 101 of the Civil Code expressly prohibit the
rendition of decree of annulment of a marriage upon a stipulation of facts or a
confession of judgment. Yet, the affidavits annexed to the petition for summary
judgment practically amount to these methods explicitly proscribed by the law.

We are not unmindful of appellees argument that the foregoing safeguards

have traditionally been applied to prevent collusion of spouses in the matter of
dissolution of marriages and that the death of Teofilo Carlos on May 13, 1992 had
effectively dissolved the marriage herein impugned. The fact, however, that
appellees own brother and appellant Felicidad Sandoval lived together as
husband and wife for thirty years and that the annulment of their marriage is the
very means by which the latter is sought to be deprived of her participation in the
estate left by the former call for a closer and more thorough inquiry into the
circumstances surrounding the case. Rather that the summary nature by which the
court a quo resolved the issues in the case, the rule is to the effect that the material
facts alleged in the complaint for annulment of marriage should always be proved.
Section 1, Rule 19 of the Revised Rules of Court provides:

Section 1. Judgment on the pleadings. Where an answer

fails to tender an issue, or otherwise admits the material allegations
of the adverse party's pleading, the court may, on motion of that
party, direct judgment on such pleading. But in actions for
annulment of marriage or for legal separation, the material facts
 alleged in the complaint shall always be proved. (Underscoring
supplied)

Moreover, even if We were to sustain the applicability of the rules on

summary judgment to the case at bench, Our perusal of the record shows that the
finding of the court a quo for appellee would still not be warranted. While it may
be readily conceded that a valid marriage license is among the formal requisites of
marriage, the absence of which renders the marriage void ab initio pursuant to
Article 80(3) in relation to Article 58 of the Civil Code the failure to reflect the
serial number of the marriage license on the marriage contract evidencing the
marriage between Teofilo Carlos and appellant Felicidad Sandoval, although
irregular, is not as fatal as appellee represents it to be. Aside from the dearth of
evidence to the contrary, appellant Felicidad Sandovals affirmation of the
existence of said marriage license is corroborated by the following statement in
the affidavit executed by Godofredo Fojas, then Justice of the Peace who
officiated the impugned marriage, to wit:

That as far as I could remember, there was a marriage

license issued at Silang, Cavite on May 14, 1962 as basis of the
said marriage contract executed by Teofilo Carlos and Felicidad
Sandoval, but the number of said marriage license was
inadvertently not placed in the marriage contract for the reason that
it was the Office Clerk who filled up the blanks in the Marriage
Contract who in turn, may have overlooked the same.

Rather than the inferences merely drawn by the trial court, We are of the
considered view that the veracity and credibility of the foregoing statement as
well as the motivations underlying the same should be properly threshed out in a
trial of the case on the merits.

If the non-presentation of the marriage contract the primary evidence of

marriage is not proof that a marriage did not take place, neither should
appellants non-presentation of the subject marriage license be taken as proof that
the same was not procured. The burden of proof to show the nullity of the
marriage, it must be emphasized, rests upon the plaintiff and any doubt should be
resolved in favor of the validity of the marriage.

Considering that the burden of proof also rests on the party who disputes
the legitimacy of a particular party, the same may be said of the trial courts
rejection of the relationship between appellant Teofilo Carlos II and his putative
father on the basis of the inconsistencies in appellant Felicidad Sandovals
statements. Although it had effectively disavowed appellants prior claims
regarding the legitimacy of appellant Teofilo Carlos II, the averment in the answer
that he is the illegitimate son of appellees brother, to Our mind, did not altogether
foreclose the possibility of the said appellants illegitimate filiation, his right to
prove the same or, for that matter, his entitlement to inheritance rights as such.
 Without trial on the merits having been conducted in the case, We find
appellees bare allegation that appellant Teofilo Carlos II was merely purchased
from an indigent couple by appellant Felicidad Sandoval, on the whole,
insufficient to support what could well be a minors total forfeiture of the rights
arising from his putative filiation. Inconsistent though it may be to her previous
statements, appellant Felicidad Sandovals declaration regarding the illegitimate
filiation of Teofilo Carlos II is more credible when considered in the light of the
fact that, during the last eight years of his life, Teofilo Carlos allowed said
appellant the use of his name and the shelter of his household. The least that the
trial court could have done in the premises was to conduct a trial on the merits in
order to be able to thoroughly resolve the issues pertaining to the filiation of
appellant Teofilo Carlos II.

On November 22, 2006, petitioner moved for reconsideration and for the inhibition of the
ponente, Justice Rebecca De Guia-Salvador. The CA denied the twin motions.

Issues

In this petition under Rule 45, petitioner hoists the following issues:

1. That, in reversing and setting aside the Summary Judgment under the
Decision, Annex A hereof, and in denying petitioners Motion for reconsideration
under the Resolution, Annex F hereof, with respect to the nullity of the impugned
marriage, petitioner respectfully submits that the Court of Appeals committed a
grave reversible error in applying Articles 88 and 101 of the Civil Code, despite
the fact that the circumstances of this case are different from that contemplated
and intended by law, or has otherwise decided a question of substance not
theretofore decided by the Supreme Court, or has decided it in a manner probably
not in accord with law or with the applicable decisions of this Honorable Court;

2. That in setting aside and reversing the Summary Judgment and, in lieu
thereof, entering another remanding the case to the court of origin for further
proceedings, petitioner most respectfully submits that the Court of Appeals
 committed a serious reversible error in applying Section 1, Rule 19 (now Section
1, Rule 34) of the Rules of Court providing for judgment on the pleadings, instead
of Rule 35 governing Summary Judgments;

3. That in reversing and setting aside the Summary Judgment and, in lieu
thereof, entering another remanding the case to the court of origin for further
proceedings, petitioner most respectfully submits that the Court of Appeals
committed grave abuse of discretion, disregarded judicial admissions, made
findings on ground of speculations, surmises, and conjectures, or otherwise
committed misapplications of the laws and misapprehension of the facts.
(Underscoring supplied)

Essentially, the Court is tasked to resolve whether a marriage may be declared void ab
initio through a judgment on the pleadings or a summary judgment and without the benefit of a
trial. But there are other procedural issues, including the capacity of one who is not a spouse in
bringing the action for nullity of marriage.

Our Ruling

I. The grounds for declaration of absolute nullity of marriage must be proved.

Neither judgment on the pleadings nor summary judgment is allowed. So is confession of
judgment disallowed.

Petitioner faults the CA in applying Section 1, Rule 19 of the Revised Rules of Court,
which provides:

SECTION 1. Judgment on the pleadings. Where an answer fails to

tender an issue, or otherwise admits the material allegations of the adverse partys
pleading, the court may, on motion of that party, direct judgment on such
 pleading. But in actions for annulment of marriage or for legal separation, the
material facts alleged in the complaint shall always be proved.

He argues that the CA should have applied Rule 35 of the Rules of Court governing
summary judgment, instead of the rule on judgment on the pleadings.

Petitioner is misguided. The CA did not limit its finding solely within the provisions of the
Rule on judgment on the pleadings. In disagreeing with the trial court, the CA likewise
considered the provisions on summary judgments, to wit:

Moreover, even if We are to sustain the applicability of the rules on

summary judgment to the case at bench, Our perusal of the record shows that the
finding of the court a quo for appellee would still not be warranted. x x x

But whether it is based on judgment on the pleadings or summary judgment, the CA was
correct in reversing the summary judgment rendered by the trial court. Both the rules on
judgment on the pleadings and summary judgments have no place in cases of declaration of
absolute nullity of marriage and even in annulment of marriage.

With the advent of A.M. No. 02-11-10-SC, known as Rule on Declaration of Absolute
Nullity of Void Marriages and Annulment of Voidable Marriages, the question on the
application of summary judgments or even judgment on the pleadings in cases of nullity or
annulment of marriage has been stamped with clarity. The significant principle laid down by the
said Rule, which took effect on March 15, 2003 is found in Section 17, viz.:
 SEC. 17. Trial. (1) The presiding judge shall personally conduct the trial
of the case. No delegation of evidence to a commissioner shall be allowed except
as to matters involving property relations of the spouses.

(2) The grounds for declaration of absolute nullity or annulment of

marriage must be proved. No judgment on the pleadings, summary judgment, or
confession of judgment shall be allowed. (Underscoring supplied)

Likewise instructive is the Courts pronouncement in Republic v. Sandiganbayan. In that

case, We excluded actions for nullity or annulment of marriage from the application of summary
judgments.

Prescinding from the foregoing discussion, save for annulment of marriage

or declaration of its nullity or for legal separation, summary judgment is
applicable to all kinds of actions. (Underscoring supplied)

By issuing said summary judgment, the trial court has divested the State of its lawful
right and duty to intervene in the case. The participation of the State is not terminated by the
declaration of the public prosecutor that no collusion exists between the parties. The State
should have been given the opportunity to present controverting evidence before the judgment
was rendered.

Both the Civil Code and the Family Code ordain that the court should order the prosecuting
attorney to appear and intervene for the State. It is at this stage when the public prosecutor sees
to it that there is no suppression of evidence. Concomitantly, even if there is no suppression of
evidence, the public prosecutor has to make sure that the evidence to be presented or laid down
before the court is not fabricated.
 To further bolster its role towards the preservation of marriage, the Rule on
Declaration of Absolute Nullity of Void Marriages reiterates the duty of the public prosecutor,
viz.:

SEC. 13. Effect of failure to appear at the pre-trial. (a) x x x

(b) x x x If there is no collusion, the court shall require the public

prosecutor to intervene for the State during the trial on the merits to prevent
suppression or fabrication of evidence. (Underscoring supplied)

Truly, only the active participation of the public prosecutor or the Solicitor General
will ensure that the interest of the State is represented and protected in proceedings for
declaration of nullity of marriages by preventing the fabrication or suppression of evidence.

II. A petition for declaration of absolute nullity of void marriage may be filed solely
by the husband or wife. Exceptions: (1) Nullity of marriage cases commenced before the
effectivity of A.M. No. 02-11-10-SC; and (2) Marriages celebrated during the effectivity of
the Civil Code.

Under the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of
Voidable Marriages, the petition for declaration of absolute nullity of marriage may not be filed
by any party outside of the marriage. The Rule made it exclusively a right of the spouses by
stating:
 SEC. 2. Petition for declaration of absolute nullity of void marriages.

(a) Who may file. A petition for declaration of absolute nullity of void
marriage may be filed solely by the husband or the wife. (Underscoring supplied)

Section 2(a) of the Rule makes it the sole right of the husband or the wife to file a
petition for declaration of absolute nullity of void marriage. The rationale of the Rule is
enlightening, viz.:

Only an aggrieved or injured spouse may file a petition for annulment of

voidable marriages or declaration of absolute nullity of void marriages. Such
petition cannot be filed by compulsory or intestate heirs of the spouses or by the
State. The Committee is of the belief that they do not have a legal right to file the
petition. Compulsory or intestate heirs have only inchoate rights prior to the
death of their predecessor, and, hence, can only question the validity of the
marriage of the spouses upon the death of a spouse in a proceeding for the
settlement of the estate of the deceased spouse filed in the regular courts. On the
other hand, the concern of the State is to preserve marriage and not to seek its
dissolution. (Underscoring supplied)

The new Rule recognizes that the husband and the wife are the sole architects of a
healthy, loving, peaceful marriage. They are the only ones who can decide when and how to
build the foundations of marriage. The spouses alone are the engineers of their marital life. They
are simultaneously the directors and actors of their matrimonial true-to-life play. Hence, they
alone can and should decide when to take a cut, but only in accordance with the grounds
allowed by law.

The innovation incorporated in A.M. No. 02-11-10-SC sets forth a demarcation line
between marriages covered by the Family Code and those solemnized under the Civil Code. The
Rule extends only to marriages entered into during the effectivity of the Family Code which took
effect on August 3, 1988.

The advent of the Rule on Declaration of Absolute Nullity of Void Marriages marks the
beginning of the end of the right of the heirs of the deceased spouse to bring a nullity of
marriage case against the surviving spouse. But the Rule never intended to deprive the
compulsory or intestate heirs of their successional rights.

While A.M. No. 02-11-10-SC declares that a petition for declaration of absolute nullity of
marriage may be filed solely by the husband or the wife, it does not mean that the compulsory
or intestate heirs are without any recourse under the law. They can still protect their
successional right, for, as stated in the Rationale of the Rules on Annulment of Voidable
Marriages and Declaration of Absolute Nullity of Void Marriages, compulsory or intestate
heirs can still question the validity of the marriage of the spouses, not in a proceeding for
declaration of nullity but upon the death of a spouse in a proceeding for the settlement of the
estate of the deceased spouse filed in the regular courts.

It is emphasized, however, that the Rule does not apply to cases already commenced
before March 15, 2003 although the marriage involved is within the coverage of the Family
Code. This is so, as the new Rule which became effective on March 15, 2003 is prospective in
its application. Thus, the Court held in Enrico v. Heirs of Sps. Medinaceli, viz.:

As has been emphasized, A.M. No. 02-11-10-SC covers marriages under

the Family Code of the Philippines, and is prospective in its application.
(Underscoring supplied)
 Petitioner commenced the nullity of marriage case against respondent Felicidad in 1995.
The marriage in controversy was celebrated on May 14, 1962. Which law would govern
depends upon when the marriage took place.

The marriage having been solemnized prior to the effectivity of the Family Code, the
applicable law is the Civil Code which was the law in effect at the time of its celebration. But
the Civil Code is silent as to who may bring an action to declare the marriage void. Does this
mean that any person can bring an action for the declaration of nullity of marriage?

We respond in the negative. The absence of a provision in the Civil Code cannot be
construed as a license for any person to institute a nullity of marriage case. Such person must
appear to be the party who stands to be benefited or injured by the judgment in the suit, or the
party entitled to the avails of the suit. Elsewise stated, plaintiff must be the real party-in-interest.
For it is basic in procedural law that every action must be prosecuted and defended in the name
of the real party-in-interest.

Interest within the meaning of the rule means material interest or an interest in issue to be
affected by the decree or judgment of the case, as distinguished from mere curiosity about the
question involved or a mere incidental interest. One having no material interest to protect cannot
invoke the jurisdiction of the court as plaintiff in an action. When plaintiff is not the real party-
in-interest, the case is dismissible on the ground of lack of cause of action.

Illuminating on this point is Amor-Catalan v. Court of Appeals, where the Court held:
 True, under the New Civil Code which is the law in force at the time the
respondents were married, or even in the Family Code, there is no specific
provision as to who can file a petition to declare the nullity of marriage;
however, only a party who can demonstrate proper interest can file the same.
A petition to declare the nullity of marriage, like any other actions, must be
prosecuted or defended in the name of the real party-in-interest and must be
based on a cause of action. Thus, in Nial v. Badayog, the Court held that the
children have the personality to file the petition to declare the nullity of marriage
of their deceased father to their stepmother as it affects their successional rights.

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 reduced 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. (Underscoring supplied)

III. The case must be remanded to determine whether or not petitioner is a real-
party-in-interest to seek the declaration of nullity of the marriage in controversy.

In the case at bench, the records reveal that when Teofilo died intestate in 1992, his only
surviving compulsory heirs are respondent Felicidad and their son, Teofilo II. Under the law on
succession, successional rights are transmitted from the moment of death of the decedent and the
compulsory heirs are called to succeed by operation of law.
 Upon Teofilos death in 1992, all his property, rights and obligations to the extent of the
value of the inheritance are transmitted to his compulsory heirs. These heirs were respondents
Felicidad and Teofilo II, as the surviving spouse and child, respectively.

Article 887 of the Civil Code outlined who are compulsory heirs, to wit:

(1) Legitimate children and descendants, with respect to their legitimate parents
and ascendants;

(2) In default of the foregoing, legitimate parents and ascendants, with respect to
their legitimate children and descendants;

(3) The widow or widower;

(4) Acknowledged natural children, and natural children by legal fiction;

(5) Other illegitimate children referred to in Article 287 of the Civil Code.

Clearly, a brother is not among those considered as compulsory heirs. But although a
collateral relative, such as a brother, does not fall within the ambit of a compulsory heir, he still
has a right to succeed to the estate. Articles 1001 and 1003 of the New Civil Code provide:

ART. 1001. Should brothers and sisters or their children survive with the
widow or widower, the latter shall be entitled to one-half of the inheritance and
the brothers and sisters or their children to the other half.

ART. 1003. If there are no descendants, ascendants, illegitimate children,

or a surviving spouse, the collateral relatives shall succeed to the entire estate of
the deceased in accordance with the following articles. (Underscoring supplied)
 Indeed, only the presence of descendants, ascendants or illegitimate children excludes
collateral relatives from succeeding to the estate of the decedent. The presence of legitimate,
illegitimate, or adopted child or children of the deceased precludes succession by collateral
relatives. Conversely, if there are no descendants, ascendants, illegitimate children, or a
surviving spouse, the collateral relatives shall succeed to the entire estate of the decedent.

If respondent Teofilo II is declared and finally proven not to be the legitimate,

illegitimate, or adopted son of Teofilo, petitioner would then have a personality to seek the
nullity of marriage of his deceased brother with respondent Felicidad. This is so, considering
that collateral relatives, like a brother and sister, acquire successional right over the estate if the
decedent dies without issue and without ascendants in the direct line.

The records reveal that Teofilo was predeceased by his parents. He had no other
siblings but petitioner. Thus, if Teofilo II is finally found and proven to be not a legitimate,
illegitimate, or adopted son of Teofilo, petitioner succeeds to the other half of the estate of his
brother, the first half being allotted to the widow pursuant to Article 1001 of the New Civil
Code. This makes petitioner a real-party-interest to seek the declaration of absolute nullity of
marriage of his deceased brother with respondent Felicidad. If the subject marriage is found
to be void ab initio, petitioner succeeds to the entire estate.

It bears stressing, however, that the legal personality of petitioner to bring the nullity of
marriage case is contingent upon the final declaration that Teofilo II is not a legitimate, adopted,
or illegitimate son of Teofilo.

If Teofilo II is proven to be a legitimate, illegitimate, or legally adopted son of Teofilo,

then petitioner has no legal personality to ask for the nullity of marriage of his deceased brother
and respondent Felicidad. This is based on the ground that he has no successional right to be
protected, hence, does not have proper interest. For although the marriage in controversy may be
found to be void from the beginning, still, petitioner would not inherit. This is because the
presence of descendant, illegitimate, or even an adopted child excludes the collateral relatives
from inheriting from the decedent.

Thus, the Court finds that a remand of the case for trial on the merits to determine the
validity or nullity of the subject marriage is called for. But the RTC is strictly instructed to
dismiss the nullity of marriage case for lack of cause of action if it is proven by evidence
that Teofilo II is a legitimate, illegitimate, or legally adopted son of Teofilo Carlos, the
deceased brother of petitioner.

IV. Remand of the case regarding the question of filiation of respondent Teofilo II is
proper and in order. There is a need to vacate the disposition of the trial court as to the
other causes of action before it.

Petitioner did not assign as error or interpose as issue the ruling of the CA on the remand of
the case concerning the filiation of respondent Teofilo II. This notwithstanding, We should not
leave the matter hanging in limbo.

This Court has the authority to review matters not specifically raised or assigned as error
by the parties, if their consideration is necessary in arriving at a just resolution of the case.
 We agree with the CA that without trial on the merits having been conducted in
the case, petitioners bare allegation that respondent Teofilo II was adopted from an indigent
couple is insufficient to support a total forfeiture of rights arising from his putative filiation.
However, We are not inclined to support its pronouncement that the declaration of respondent
Felicidad as to the illegitimate filiation of respondent Teofilo II is more credible. For the
guidance of the appellate court, such declaration of respondent Felicidad should not be afforded
credence. We remind the CA of the guaranty provided by Article 167 of the Family Code to
protect the status of legitimacy of a child, to wit:

ARTICLE 167. The child shall be considered legitimate although the

mother may have declared against its legitimacy or may have been sentenced as
an adulteress. (Underscoring supplied)

It is stressed that Felicidads declaration against the legitimate status of Teofilo II is

the very act that is proscribed by Article 167 of the Family Code. The language of the law is
unmistakable. An assertion by the mother against the legitimacy of her child cannot affect the
legitimacy of a child born or conceived within a valid marriage.

Finally, the disposition of the trial court in favor of petitioner for causes of action
concerning reconveyance, recovery of property, and sum of money must be vacated. This has to
be so, as said disposition was made on the basis of its finding that the marriage in controversy
was null and void ab initio.

WHEREFORE, the appealed Decision is MODIFIED as follows:

 1. The case is REMANDED to the Regional Trial Court in regard to the action on
the status and filiation of respondent Teofilo Carlos II and the validity or nullity of
marriage between respondent Felicidad Sandoval and the late Teofilo Carlos;

2. If Teofilo Carlos II is proven to be the legitimate, or illegitimate, or legally

adopted son of the late Teofilo Carlos, the RTC is strictly INSTRUCTED to
DISMISS the action for nullity of marriage for lack of cause of action;

3. The disposition of the RTC in Nos. 1 to 8 of the fallo of its decision is

VACATED AND SET ASIDE.

The Regional Trial Court is ORDERED to conduct trial on the merits with dispatch and
to give this case priority in its calendar.

No costs.

THIRD DIVISION

[G.R. No. 179620, August 26, 2008]

MANUEL G. ALMELOR, PETITIONER, VS. THE HON. REGIONAL TRIAL COURT

OF LAS PIAS CITY, BRANCH 254, AND LEONIDA T. ALMELOR, RESPONDENT.

DECISION

REYES, R.T., J.:

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

This is a petition for review on certiorari of the Decision[2] of the Court of Appeals (CA) denying
the petition for annulment of judgment and affirming in toto the decision of the Regional Trial
Court (RTC), Las Pias, Branch 254. The CA dismissed outright the Rule 47 petition for being
the wrong remedy.

The Facts

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

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

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

Leonida averred that Manuel's kind and gentle demeanor did not last long. In the public eye,
Manuel was the picture of a perfect husband and father. This was not the case in his private life.
At home, Leonida described Manuel as a harsh disciplinarian, unreasonably meticulous, easily
angered. Manuel's unreasonable way of imposing discipline on their children was the cause of
their frequent fights as a couple.[7] Leonida complained that this was in stark contrast to the
alleged lavish affection Manuel has for his mother. Manuel's deep attachment to his mother and
his dependence on her decision-making were incomprehensible to Leonida.[8]

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

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

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

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

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

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

This same overly jealous behavior of Leonida drove Manuel to avoid the company of female
friends. He wanted to avoid any further misunderstanding with his wife. But, Leonida instead
conjured up stories about his sexual preference. She also fabricated tales about pornographic
materials found in his possession to cast doubt on his masculinity.[20]

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

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

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

RTC Disposition

By decision dated November 25, 2005, the RTC granted the petition for annulment, with the
following disposition:
WHEREFORE, premised on the foregoing, judgment is hereby rendered:

1. Declaring the marriage contracted by herein parties on 29 January 1989 and all its effects
under the law null and void from the beginning;
 2. Dissolving the regime of community property between the same parties with forfeiture of
defendant's share thereon in favor of the same parties' children whose
legal custody is awarded to plaintiff with visitorial right afforded to defendant;
3. Ordering the defendant to give monthly financial support to all the children; and
4. Pursuant to the provisions of A.M. No. 02-11-10-SC:

a. Directing the Branch Clerk of this Court to enter this Judgment upon its finality in
the Book of Entry of Judgment and to issue an Entry of Judgment in accordance
thereto; and
b. Directing the Local Civil Registrars of Las Pias City and Manila City to cause
the registration of the said Entry of Judgment in their respective Books of
Marriages.

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

SO ORDERED.[24] (Emphasis supplied)

The trial court nullified the marriage, not on the ground of Article 36, but Article 45 of the
Family Code. It ratiocinated:
x x x a careful evaluation and in-depth analysis of the surrounding circumstances of the
allegations in the complaint and of the evidence presented in support thereof (sic) reveals that in
this case (sic) there is more than meets the eyes (sic).

Both legally and biologically, homosexuality x x x is, indeed, generally incompatible with hetero
sexual marriage. This is reason enough that in this jurisdiction (sic) the law recognizes marriage
as a special contract exclusively only between a man and a woman x x x and thus when
homosexuality has trespassed into marriage, the same law provides ample remedies to correct the
situation [Article 45(3) in relation to Article 46(4) or Article 55, par. 6, Family Code]. This is of
course in recognition of the biological fact that no matter how a man cheats himself that he is not
a homosexual and forces himself to live a normal heterosexual life, there will surely come a time
when his true sexual preference as a homosexual shall prevail in haunting him and thus
jeopardizing the solidity, honor, and welfare of his own family.[25]
Manuel filed a notice of appeal which was, however, denied due course. Undaunted, he filed a
petition for annulment of judgment with the CA.[26]

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

CA Disposition

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

WHEREFORE, the present Petition for Annulment of Judgment is hereby DENIED. The Court
AFFIRMS in toto the Decision (dated November 25, 2005) of the Regional Trial Court (Branch
254), in Las Pias City, in Civil Case No. LP-00-0132. No costs.[27]
The CA stated that petitioner pursued the wrong remedy by filing the extraordinary remedy of
petition for annulment of judgment. Said the appellate court:
It is obvious that the petitioner is questioning the propriety of the decision rendered by the lower
Court. But the remedy assuming there was a mistake is not a Petition for Annulment of Judgment
but an ordinary appeal. An error of judgment may be reversed or corrected only by appeal.

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

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

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

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

II

THE HONORABLE COURT OF APPEALS ERRED IN UPHOLDING THE DECISION OF

THE TRIAL COURT AS REGARDS THE ORDER DECLARING THE MARRIAGE AS NULL
AND VOID ON THE GROUND OF PETITIONER'S PSYCHOLOGICAL INCAPACITY;

III

THE HONORABLE COURT OF APPEALS ERRED IN UPHOLDING THE DECISION OF

THE TRIAL COURT AS REGARDS THE ORDER TO FORFEIT THE SHARE OF
PETITIONER IN HIS SHARE OF THE CONJUGAL ASSETS.[29]
Our Ruling

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

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

Annulment of judgment under Rule 47 is a last remedy. It can not be resorted to if the ordinary
remedies are available or no longer available through no fault of petitioner.[32] However, in
Buenaflor v. Court of Appeals,[33] this Court clarified the proper appreciation for technical rules
of procedure, in this wise:
Rules of procedures are intended to promote, not to defeat, substantial justice and,
therefore, they should not be applied in a very rigid and technical sense. The exception is
that while the Rules are liberally construed, the provisions with respect to the rules on the
manner and periods for perfecting appeals are strictly applied. As an exception to the
exception, these rules have sometimes been relaxed on equitable considerations. Also, in
some cases the Supreme Court has given due course to an appeal perfected out of time where a
stringent application of the rules would have denied it, but only when to do so would serve the
demands of substantial justice and in the exercise of equity jurisdiction of the Supreme Court.[34]
(Emphasis and underscoring supplied)
For reasons of justice and equity, this Court has allowed exceptions to the stringent rules
governing appeals.[35] It has, in the past, refused to sacrifice justice for technicality.[36]

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

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

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

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

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

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

That it was erroneously labeled as a petition for certiorari under Rule 65 of the Rules of Court is
only a minor procedural lapse, not fatal to the appeal. x x x
More importantly, the appeal on its face appears to be impressed with merit. Hence, the Court of
Appeals should have overlooked the insubstantial defects of the petition x x x in order to do
justice to the parties concerned. There is, indeed, nothing sacrosanct about procedural rules,
which should be liberally construed in order to promote their object and assist the parties in
obtaining just, speedy, and inexpensive determination of every action or proceeding. As it has
been said, where the rigid application of the rules would frustrate substantial justice, or bar the
vindication of a legitimate grievance, the courts are justified in exempting a particular case from
the operation of the rules.[41] (Underscoring supplied)
Similarly, in the more recent case of Tan v. Dumarpa,[42] petitioner Joy G. Tan availed of a wrong
remedy by filing a petition for review on certiorari instead of a motion for new trial or an
ordinary appeal. In the interest of justice, this Court considered the petition, pro hac vice, as a
petition for certiorari under Rule 65.

This Court found that based on Tan's allegations, the trial court prima facie committed grave
abuse of discretion in rendering a judgment by default. If uncorrected, it will cause petitioner
great injustice. The Court elucidated in this wise:
Indeed, where as here, there is a strong showing that grave miscarriage of justice would result
from the strict application of the Rules, we will not hesitate to relax the same in the interest of
substantial justice.[43] (Underscoring supplied)
Measured by the foregoing yardstick, justice will be better served by giving due course to the
present petition and treating petitioner's CA petition as one for certiorari under Rule 65,
considering that what is at stake is the validity or non-validity of a marriage.

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

Court reiterated:
x x x The dismissal of appeals on purely technical grounds is frowned upon. While the right to
appeal is a statutory, not a natural right, nonetheless it is an essential part of our judicial system
and courts should proceed with caution so as not to deprive a party of the right to appeal, but
rather, ensure that every party-litigant has the amplest opportunity for the proper and just
disposition of his cause, free from the constraints of technicalities.[45]
Indeed, it is far better and more prudent for a court to excuse a technical lapse and afford the
parties a review of the case on the merits to attain the ends of justice.[46]

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

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

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

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

It is settled that the negligence of counsel binds the client. This is based on the rule that any act
performed by a counsel within the scope of his general or implied authority is regarded as an act
of his client. However, where counsel is guilty of gross ignorance, negligence and dereliction of
duty, which resulted in the client's being held liable for damages in a damage suit, the client is
deprived of his day in court and the judgment may be set aside on such ground. In the instant
case, higher interests of justice and equity demand that petitioners be allowed to present evidence
on their defense. Petitioners may not be made to suffer for the lawyer's mistakes. This Court
will always be disposed to grant relief to parties aggrieved by perfidy, fraud, reckless
inattention and downright incompetence of lawyers, which has the consequence of
depriving their clients, of their day in court.[49] (Emphasis supplied)
Clearly, this Court has the power to except a particular case from the operation of the rule
whenever the demands of justice require it. With more conviction should it wield such power in a
case involving the sacrosanct institution of marriage. This Court is guided with the thrust of
giving a party the fullest opportunity to establish the merits of one's action.[50]

The client was likewise spared from counsel's negligence in Government Service Insurance
System v. Bengson Commercial Buildings, Inc.[51] and Ancheta v. Guersey-Dalaygon.[52] Said the
Court in Bengson:
But if under the circumstances of the case, the rule deserts its proper office as an aid to justice
and becomes a great hindrance and chief enemy, its rigors must be relaxed to admit exceptions
thereto and to prevent a miscarriage of justice. In other words, the court has the power to except
a particular case from the operation of the rule whenever the purposes of justice require it.[53]
II. Concealment of homosexuality is the proper ground to annul a marriage, not
homosexuality per se.

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

The trial court declared that Leonida's petition for nullity had "no basis at all because the
supporting grounds relied upon can not legally make a case under Article 36 of the Family
Code." It went further by citing Republic v. Molina:[54]
Indeed, mere allegations of conflicting personalities, irreconcilable differences, incessant
quarrels and/or beatings, unpredictable mood swings, infidelities, vices, abandonment, and
difficulty, neglect, or failure in the performance of some marital obligations do not suffice to
establish psychological incapacity.[55]
If so, the lower court should have dismissed outright the petition for not meeting the guidelines
set in Molina. What Leonida attempted to demonstrate were Manuel's homosexual tendencies by
citing overt acts generally predominant among homosexual individuals.[56] She wanted to prove
that the perceived homosexuality rendered Manuel incapable of fulfilling the essential marital
obligations.

But instead of dismissing the petition, the trial court nullified the marriage between Manuel and
Leonida on the ground of vitiated consent by virtue of fraud. In support of its conclusion, the
lower court reasoned out:
As insinuated by the State (p. 75, TSN, 15 December 2003), when there is smoke surely there is
fire. Although vehemently denied by defendant, there is preponderant evidence enough to
establish with certainty that defendant is really a homosexual. This is the fact that can be
deduced from the totality of the marriage life scenario of herein parties.

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

Yes, there is nothing untoward of a man if, like herein defendant, he is meticulous over even
small details in the house (sic) like wrongly folded bed sheets, etc. or if a man is more
authoritative in knowing what clothes or jewelry shall fit his wife (pp. 77-81, TSN, 15 December
2003); but these admissions of defendant taken in the light of evidence presented apparently
showing that he had extra fondness of his male friends (sic) to the extent that twice on separate
occasions (pp. 4-7, TSN, 14 February 2001) he was allegedly seen by plaintiff kissing another
man lips-to-lips plus the homosexual magazines and tapes likewise allegedly discovered
underneath his bed (Exhibits "L" and "M"), the doubt as to his real sex identity becomes
stronger. The accusation of plaintiff versus thereof of defendant may be the name of the game in
this case; but the simple reason of professional rivalry advanced by the defendant is certainly not
enough to justify and obscure the question why plaintiff should accuse him of such a very
untoward infidelity at the expense and humiliation of their children and family as a whole.[57]
Evidently, no sufficient proof was presented to substantiate the allegations that Manuel is a
homosexual and that he concealed this to Leonida at the time of their marriage. The lower court
considered the public perception of Manuel's sexual preference without the corroboration of
witnesses. Also, it took cognizance of Manuel's peculiarities and interpreted it against his
sexuality.

Even assuming, ex gratia argumenti, that Manuel is a homosexual, the lower court cannot
appreciate it as a ground to annul his marriage with Leonida. The law is clear - a marriage may
be annulled when the consent of either party was obtained by fraud,[58] such as concealment of
homosexuality.[59] Nowhere in the said decision was it proven by preponderance of evidence that
Manuel was a homosexual at the onset of his marriage and that he deliberately hid such fact to
his wife.[60] It is the concealment of homosexuality, and not homosexuality per se, that vitiates
the consent of the innocent party. Such concealment presupposes bad faith and intent to defraud
the other party in giving consent to the marriage.
Consent is an essential requisite of a valid marriage. To be valid, it must be freely given by both
parties. An allegation of vitiated consent must be proven by preponderance of evidence. The
Family Code has enumerated an exclusive list of circumstances[61] constituting fraud.
Homosexuality per se is not among those cited, but its concealment.

This distinction becomes more apparent when we go over the deliberations[62] of the Committees
on the Civil Code and Family Law, to wit:
Justice Caguioa remarked that this ground should be eliminated in the provision on the grounds
for legal separation. Dean Gupit, however, pointed out that in Article 46, they are talking only of
"concealment," while in the article on legal separation, there is actuality. Judge Diy added that in
legal separation, the ground existed after the marriage, while in Article 46, the ground existed at
the time of the marriage. Justice Reyes suggested that, for clarity, they add the phrase "existing at
the time of the marriage" at the end of subparagraph (4). The Committee approved the
suggestion.[63]
To reiterate, homosexuality per se is only a ground for legal separation. It is its concealment that
serves as a valid ground to annul a marriage.[64] Concealment in this case is not simply a blanket
denial, but one that is constitutive of fraud. It is this fundamental element that respondent failed
to prove.

In the United States, homosexuality has been considered as a basis for divorce. It indicates that
questions of sexual identity strike so deeply at one of the basic elements of marriage, which is
the exclusive sexual bond between the spouses.[65] In Crutcher v. Crutcher,[66] the Court held:
Unnatural practices of the kind charged here are an infamous indignity to the wife, and which
would make the marriage relation so revolting to her that it would become impossible for her to
discharge the duties of a wife, and would defeat the whole purpose of the relation. In the natural
course of things, they would cause mental suffering to the extent of affecting her health.[67]
However, although there may be similar sentiments here in the Philippines, the legal overtones
are significantly different. Divorce is not recognized in the country. Homosexuality and its
alleged incompatibility to a healthy heterosexual life are not sanctioned as grounds to sever the
marriage bond in our jurisdiction. At most, it is only a ground to separate from bed and board.

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

The same failure to prove fraud which purportedly resulted to a vitiated marital consent was
found in Villanueva v. Court of Appeals.[68] In Villanueva, instead of proving vitiation of consent,
appellant resorted to baseless portrayals of his wife as a perpetrator of fraudulent schemes. Said
the Court:
Factual findings of the Court of Appeals, especially if they coincide with those of the trial court,
as in the instant case, are generally binding on this Court. We affirm the findings of the Court of
Appeals that petitioner freely and voluntarily married private respondent and that no threats or
intimidation, duress or violence compelled him to do so, thus -

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

The Court is not convinced that appellant's apprehension of danger to his person is so
overwhelming as to deprive him of the will to enter voluntarily to a contract of marriage. It is not
disputed that at the time he was allegedly being harassed, appellant worked as a security guard in
a bank. Given the rudiments of self-defense, or, at the very least, the proper way to keep himself
out of harm's way. x x x

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

xxxx

x x x The failure to cohabit becomes relevant only if it arises as a result of the perpetration of any
of the grounds for annulling the marriage, such as lack of parental consent, insanity, fraud,
intimidation, or undue influence x x x. Since the appellant failed to justify his failure to cohabit
with the appellee on any of these grounds, the validity of his marriage must be upheld.[69]
Verily, the lower court committed grave abuse of discretion, not only by solely taking into
account petitioner's homosexuality per se and not its concealment, but by declaring the marriage
void from its existence.

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

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

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

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

In the event that one spouse is incapacitated or otherwise unable to participate in the
administration of the common properties, the other spouse may assume sole powers of
administration. These powers do not include the powers of disposition or encumbrance without
the authority of the court or the written consent of the other spouse. In the absence of such
authority or consent, the disposition or encumbrance shall be void. However, the transaction
shall be construed as a continuing offer on the part of the consenting spouse and the third person,
and may be perfected as a binding contract upon the acceptance by the other spouse or
authorization by the court before the offer is withdrawn by either or both offerors.
A similar provision, Article 124[72] prescribes joint administration and enjoyment in a regime of
conjugal partnership. In a valid marriage, both spouses exercise administration and enjoyment of
the property regime, jointly.

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

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

THIRD DIVISION

G.R. No. L-53880 March 17, 1994

ENRICO L. PACETE, CLARITA DE LA CONCEPCION, EMELDA C. PACETE,

EVELINA C. PACETE and EDUARDO C. PACETE, petitioners,
vs.
HON. GLICERIO V. CARRIAGA, JR. and CONCEPCION (CONCHITA) ALANIS
PACETE, respondents.

Juan G. Sibug and Rodolfo B. Quiachon for petitioners.

Julio F. Andres, Jr. for private respondent.

VITUG, J.:

The issue in this petition for certiorari is whether or not the Court of First Instance (now
Regional Trial Court) of Cotabato, Branch I, in Cotabato City, gravely abused its discretion in
denying petitioners' motion for extension of time to file their answer in Civil Case No. 2518, in
declaring petitioners in default and in rendering its decision of 17 March 1980 which, among
other things, decreed the legal separation of petitioner Enrico L. Pacete and private respondent
Concepcion Alanis and held to be null and void ab initio the marriage of Enrico L. Pacete to
Clarita de la Concepcion.

On 29 October 1979, Concepcion Alanis filed with the court below a complaint for the
declaration of nullity of the marriage between her erstwhile husband Enrico L. Pacete and one
Clarita de la Concepcion, as well as for legal separation (between Alanis and Pacete), accounting
and separation of property. In her complaint, she averred that she was married to Pacete on 30
April 1938 before the Justice of the Peace of Cotabato, Cotabato; that they had a child named
Consuelo who was born on 11 March 1943; that Pacete subsequently contracted (in 1948) a
second marriage with Clarita de la Concepcion in Kidapawan, North Cotabato; that she learned
of such marriage only on 01 August 1979; that during her marriage to Pacete, the latter acquired
vast property consisting of large tracts of land, fishponds and several motor vehicles; that he
fraudulently placed the several pieces of property either in his name and Clarita or in the names
of his children with Clarita and other "dummies;" that Pacete ignored overtures for an amicable
settlement; and that reconciliation between her and Pacete was impossible since he evidently
preferred to continue living with Clarita.

The defendants were each served with summons on 15 November 1979. They filed a motion for
an extension of twenty (20) days from 30 November 1979 within which to file an answer. The
court granted the motion. On 18 December 1979, appearing through a new counsel, the
defendants filed a second motion for an extension of another thirty (30) days from 20 December
1979. On 07 January 1980, the lower court granted the motion but only for twenty (20) days to
be counted from 20 December 1979 or until 09 January 1980. The Order of the court was mailed
to defendants' counsel on 11 January 1980. Likely still unaware of the court order, the
defendants, on 05 February 1980, again filed another motion (dated 18 January 1980) for an
extension of "fifteen (15) days counted from the expiration of the 30-day period previously
sought" within which to file an answer. The following day, or on 06 February 1980, the court
denied this last motion on the ground that it was "filed after the original period given . . . as first
extension had expired." 1

The plaintiff thereupon filed a motion to declare the defendants in default, which the court
forthwith granted. The plaintiff was then directed to present her evidence. 2 The court received
plaintiff's evidence during the hearings held on 15, 20, 21 and 22 February 1980.

On 17 March 1980, the court 3 promulgated the herein questioned decision, disposing of the case,
thus

WHEREFORE, order is hereby issued ordering:

1. The issuance of a Decree of Legal Separation of the marriage between, the

plaintiff, Concepcion (Conchita) Alanis Pacete and the herein defendants, Enrico
L. Pacete, in accordance with the Philippine laws and with consequences, as
provided for by our laws;

2. That the following properties are hereby declared as the conjugal properties of
the partnership of the plaintiff, Concepcion (Conchita) Alanis Pacete and the
defendant, Enrico L. Pacete, half and half, to wit:

1. The parcel of land covered by TCT No. V-815 which is a parcel of land situated
in the barrio of Langcong, Municipality of Matanog (previously of Parang),
province of Maguindanao (previously of Cotabato province) with an area of
45,265 square meters registered in the name of Enrico Pacete, Filipino, of legal
age, married to Conchita Alanis as shown in Exhibits "B" and "B-1" for the
plaintiff.
2. A parcel of land covered by Transfer Certificate of Title No. T-20442, with an
area of 538 square meters and covered by Tax Declaration No. 2650 (74) in the
name of Enrico Pacete, situated in the Poblacion of Kidapawan, North Cotabato,
together with all its improvements, which parcel of land, as shown by Exhibits
"K-1" was acquired by way of absolute deed of sale executed by Amrosio
Mondog on January 14, 1965.

3. A parcel of land covered by Transfer Certificate of Title No. T-20424 and

covered by Tax Declaration No. 803 (74), with an area of 5.1670 hectares, more
or less, as shown by Exhibit "R", the same was registered in the name of Enrico
Pacete and the same was acquired by Enrico Pacete last February 17, 1967 from
Ambag Ampoy, as shown by Exhibit "R-1", situated at Musan, Kidapawan, North
Cotabato.

4. A parcel of land situated at Lanao, Kidapawan, North Cotabato, with an area of

5.0567 hectares, covered by Tax Declaration No. 4332 (74), as shown by Exhibit
"S", and registered in the name of Enrico Pacete.

5. A parcel of land covered by Transfer Certificate of Title No. T-9750, situated at

Lika, Mlang, North Cotabato, with an area of 4.9841 hectares and the same is
covered by Tax Declaration No. 803 (74) and registered in the name of Enrico
Pacete and which land was acquired by Enrico Pacete from Salvador Pacete on
September 24, 1962, as shown by Exhibit "Q-1".

6. A parcel of land covered by Transfer Certificate of Title No. T-9944, with an

area of 9.9566 and also covered by Tax Declaration No. 8608 (74) and registered
in the name of the defendant Enrico L. Pacete which Enrico L. Pacete acquired
from Sancho Balingcos last October 22, 1962, as shown by Exhibit "L-1" and
which parcel of land is situated at (Kialab), Kiab, Matalam, North Cotabato.

7. A parcel of land covered by Transfer Certificate of Title No. T-9227, situated at

Kiab, Matalam, North Cotabato, with an area of 12.04339 hectares, more or less,
and also covered by Tax Declaration No. 8607 (74) both in the name of the
defendant Enrico L. Pacete which he acquired last October 15, 1962 from Minda
Bernardino, as shown by Exhibit "M-1".

8. A parcel of land covered by Transfer Certificate of Title No. T-9228, situated at

Kiab, Matalam, North Cotabato, with an area of 10.8908 hectares, registered in
the name of Enrico Pacete and also covered by Tax Declaration No. 5781 (74) in
the name of Enrico Pacete and which parcel of land he acquired last September
25, 1962 from Conchita dela Torre, as shown by Exhibit "P-1".

9. A parcel of land covered by Transfer Certificate of Title No. T-10301, situated

at Linao, Matalam, North Cotabato, with an area of 7.2547 hectares, registered in
the name of Enrico Pacete and also covered by Tax Declaration No. 8716 (74)
also in the name of Enrico Pacete which Enrico Pacete acquired from Agustin
Bijo last July 16, 1963, as shown by Exhibit "N-1".

10. A parcel of land covered by Transfer Certificate of Title No. 12728 in the
name of the defendant, Enrico L. Pacete, with an area of 10.9006 hectares,
situated at Linao, Matalam, North Cotabato and is also covered by Tax
Declaration No. 5745 (74) in the name of Enrico Pacete, as shown on Exhibit "O"
and which Enrico Pacete acquired last December 31, 1963 from Eliseo Pugni, as
shown on Exhibit "0-1".

3. Ordering the Cancellation of Original Certificate of Title No. P-34243 covering

Lot No. 1066, issued in the name of Evelina Pacete, situated at Kiab, Matalam,
North Cotabato, and ordering the registration of the same in the joint name of
Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete as their conjugal
property, with address on the part of Concepcion (Conchita) Alanis Pacete at
Parang, Maguindanao and on the part of Enrico L. Pacete at Kidapawan, North
Cotabato.

4. Ordering likewise the cancellation of Original Certificate of Title No. V-20101,

covering Lot No. 77, in the name of Eduardo C. Pacete, situated at New Lawaan,
Mlang, North Cotabato, and the issuance of a new Transfer Certificate of Title in
the joint name of (half and half) Concepcion (Conchita) Alanis Pacete and Enrico
L. Pacete.

5. Ordering likewise the cancellation of Original Certificate of Title No. P-29890,

covering Lot 1068, situated at Kiab, Matalam, North Cotabato, with an area of
12.1031 hectares, in the name of Emelda C. Pacete and the issuance of a new
Transfer Certificate of Title in the joint name (half and half) of Concepcion
(Conchita) Alanis Pacete and Enrico L. Pacete; and declaring that the fishpond
situated at Barrio Tumanan, Bislig, Surigao Del Sur, with an area of 48 hectares
and covered by Fishpond Lease Agreement of Emelda C. Pacete, dated July 29,
1977 be cancelled and in lieu thereof, the joint name of Concepcion (Conchita)
Alanis Pacete and her husband, Enrico L. Pacete, be registered as their joint
property, including the 50 hectares fishpond situated in the same place, Barrio
Timanan, Bislig, Surigao del Sur.

6. Ordering the following motor vehicles to be the joint properties of the conjugal
partnership of Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete, viz:

a. Motor vehicle with Plate No. T-RG-783; Make, Dodge; Motor No. T137-
20561; Chassis No. 83920393, and Type, Mcarrier;

b. Motor vehicle with Plate No. T-RG-784; Make, Dodge; Motor No. T214-
229547; Chassis No. 10D-1302-C; and Type, Mcarrier;
 c. Motor vehicle with Plate No. J-PR-818; Make, Ford; Motor No. GRW-116188;
Chassis No. HOCC-GPW-1161-88-C; Type, Jeep;

d. Motor vehicle with Plate No. TH-5J-583; Make, Ford: Motor No. F70MU5-
11111; Chassis No. HOCC-GPW-1161188-G; Type, Stake;

e. Motor vehicle with Plate No. TH-5J-584; Make, Hino; Motor No. ED300-
45758; Chassis No. KB222-22044; Type, Stake; and

f. Motor vehicle with Plate No. TH-5J-585; Make, Ford: Motor No. LTC-780-Dv;
Chassis No. 10F-13582-K; Type, Stake.

7. Ordering the defendant Enrico L. Pacete to pay the plaintiff the sum of
P46,950.00 which is the share of the plaintiff in the unaccounted income of the
ricemill and corn sheller for three years from 1971 to 1973.

8. Ordering the defendant, Enrico L. Pacete, to reimburse the plaintiff the

monetary equipment of 30% of whether the plaintiff has recovered as attorney's
fees;

9. Declaring the subsequent marriage between defendant Enrico L. Pacete and

Clarita de la Concepcion to be void ab initio; and

10. Ordering the defendants to pay the costs of this suit. 4

Hence, the instant special civil action of certiorari.

Under ordinary circumstances, the petition would have outrightly been dismissed, for, as also
pointed out by private respondents, the proper remedy of petitioners should have instead been
either to appeal from the judgment by default or to file a petition for relief from judgment. 5 This
rule, however, is not inflexible; a petition for certiorari is allowed when the default order is
improperly declared, or even when it is properly declared, where grave abuse of discretion
attended such declaration. 6 In these exceptional instances, the special civil action of certiorari to
declare the nullity of a judgment by default is available. 7 In the case at bench, the default order
unquestionably is not legally sanctioned. The Civil Code provides:

Art. 101. No decree of legal separation shall be promulgated upon a stipulation of

facts or by confession of judgment.

In case of non-appearance of the defendant, the court shall order the prosecuting
attorney to inquire whether or not a collusion between the parties exists. If there is
no collusion, the prosecuting attorney shall intervene for the State in order to take
care that the evidence for the plaintiff is not fabricated.

The provision has been taken from Article 30 of the California Civil Code, 8 and it is, in
substance, reproduced in Article 60 of the Family Code. 9
Article 101 reflects the public policy on marriages, and it should easily explain the mandatory
tenor of the law. In Brown v. Yambao, 10 the Court has observed:

The policy of Article 101 of the new Civil Code, calling for the intervention of the
state attorneys in case of uncontested proceedings for legal separation (and of
annulment of marriages, under Article 88), is to emphasize that marriage is more
than a mere contract; that it is a social institution in which the state is vitally
interested, so that its continuation or interruption can not be made to depend upon
the parties themselves (Civil Code, Article 52; Adong vs. Cheong Gee, 43 Phil.
43; Ramirez v. Gmur, 42 Phil. 855; Goitia v. Campos, 35 Phil. 252). It is
consonant with this policy that the inquiry by the Fiscal should be allowed to
focus upon any relevant matter that may indicate whether the proceedings for
separation or annulment are fully justified or not.

Article 103 of the Civil Code, now Article 58 of the Family Code, further mandates that an
action for legal separation must "in no case be tried before six months shall have elapsed since
the filing of the petition," obviously in order to provide the parties a "cooling-off" period. In this
interim, the court should take steps toward getting the parties to reconcile.

The significance of the above substantive provisions of the law is further underscored by the
inclusion of the following provision in Rule 18 of the Rules of Court:

Sec. 6. No defaults in actions for annulments of marriage or for legal separation.

If the defendant in an action for annulment of marriage or for legal separation
fails to answer, the court shall order the prosecuting attorney to investigate
whether or not a collusion between the parties exists, and if there is no collusion,
to intervene for the State in order to see to it that the evidence submitted is not
fabricated.

The special prescriptions on actions that can put the integrity of marriage to possible jeopardy
are impelled by no less than the State's interest in the marriage relation and its avowed intention
not to leave the matter within the exclusive domain and the vagaries of the parties to alone
dictate.

It is clear that the petitioner did, in fact, specifically pray for legal separation. 11 That other
remedies, whether principal or incidental, have likewise been sought in the same action cannot
dispense, nor excuse compliance, with any of the statutory requirements aforequoted.

WHEREFORE, the petition for certiorari is hereby GRANTED and the proceedings below,
including the Decision of 17 March 1980 appealed from, are NULLIFIED and SET ASIDE. No
costs.

EN BANC

G.R. No. 11263 November 2, 1916

ELOISA GOITIA DE LA CAMARA, plaintiff-appellant,
vs.
JOSE CAMPOS RUEDA, defendant-appellee.

Eduardo Gutierrez Repide and Felix Socias for appellant.

Sanz, Opisso and Luzuriaga for appellee.

TRENT, J.:

This is an action by the wife against her husband for support outside of the conjugal domicile.
From a judgment sustaining the defendant's demurrer upon the ground that the facts alleged in
the complaint do not state a cause of action, followed by an order dismissing the case after the
plaintiff declined to amend, the latter appealed.

It was urged in the first instance, and the court so held, that the defendant cannot be compelled to
support the plaintiff, except in his own house, unless it be by virtue of a judicial decree granting
her a divorce or separation from the defendant.

The parties were legally married in the city of Manila on January 7, 1915, and immediately
thereafter established their residence at 115 Calle San Marcelino, where they lived together for
about a month, when the plaintiff returned to the home of her parents. The pertinent allegations
of the complaint are as follows:

That the defendant, one month after he had contracted marriage with the plaintiff,
demanded of her that she perform unchaste and lascivious acts on his genital organs; that
the plaintiff spurned the obscene demands of the defendant and refused to perform any
act other than legal and valid cohabitation; that the defendant, since that date had
continually on other successive dates, made similar lewd and indecorous demands on his
wife, the plaintiff, who always spurned them, which just refusals of the plaintiff
exasperated the defendant and induce him to maltreat her by word and deed and inflict
injuries upon her lips, her face and different parts of her body; and that, as the plaintiff
was unable by any means to induce the defendant to desist from his repugnant desires and
cease from maltreating her, she was obliged to leave the conjugal abode and take refuge
in the home of her parents.

Marriage in this jurisdiction is a contract entered into in the manner and with the solemnities
established by General Orders No. 68, in so far as its civil effects are concerned requiring the
consent of the parties. (Garcia vs. Montague, 12 Phil. Rep., 480, citing article 1261 of Civil
Code.) Upon the termination of the marriage ceremony, a conjugal partnership is formed
between the parties. (Sy Joc Lieng vs. Encarnacion, 16 Phil. Rep., 137.) To this extent a marriage
partakes of the nature of an ordinary contract. But it is something more than a mere contract. It is
a new relation, the rights, duties, and obligations of which rest not upon the agreement of the
parties but upon the general law which defines and prescribes those rights, duties, and
obligations .Marriage is an institution, in the maintenance of which in its purity the public is
deeply interested. It is a relation for life and the parties cannot terminate it at any shorter period
by virtue of any contract they may make .The reciprocal rights arising from this relation, so long
as it continues, are such as the law determines from time to time, and none other. When the legal
existence of the parties is merged into one by marriage, the new relation is regulated and
controlled by the state or government upon principles of public policy for the benefit of society
as well as the parties. And when the object of a marriage is defeated by rendering its continuance
intolerable to one of the parties and productive of no possible good to the community, relief in
some way should be obtainable. With these principles to guide us, we will inquire into the status
of the law touching and governing the question under consideration.

Articles 42 to 107 of the Civil Code are not in force in the Philippine Islands (Benedicto vs. De
la Rama, 3 Phil .Rep., 34). Articles 44 to 78 of the Law of Civil Marriage of 1870, in force in the
Peninsula, were extended to the Philippine Islands by royal decree on April 13, 1883 (Ebreo vs.
Sichon, 4 Phil. Rep., 705). Articles 44, 45, and 48 of this law read:

ART. 44. The spouses are obliged to be faithful to each other and to mutually assist each
other.

ART. 45. The husband must live with and protect his wife. (The second paragraph deals
with the management of the wife's property.)

ART. 48. The wife must obey her husband, live with him, and follow him when he
charges his domicile or residence.

Notwithstanding the provisions of the foregoing paragraph, the court may for just cause
relieve her from this duty when the husband removes his residence to a foreign country.

And articles 143 and 149 of the Civil Code are as follows:

ART. 143. The following are obliged to support each other reciprocally to the whole
extent specified in the preceding article.

1. The consorts.

xxxxxxxxx

ART. (149) 49. The person obliged to give support may, at his option, satisfy it, either by
paying the pension that may be fixed or by receiving and maintaining in his own home
the person having the right to the same.

Article 152 of the Civil Code gives the instances when the obligation to give support shall cease.
The failure of the wife to live with her husband is not one of them.

The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the duties and
obligations of the spouses. The spouses must be faithful to, assist, and support each other. The
husband must live with and protect his wife. The wife must obey and live with her husband and
follow him when he changes his domicile or residence, except when he removes to a foreign
country. But the husband who is obliged to support his wife may, at his option, do so by paying
her a fixed pension or by receiving and maintaining her in his own home. May the husband, on
account of his conduct toward his wife, lose this option and be compelled to pay the pension? Is
the rule established by article 149 of the Civil Code absolute? The supreme court of Spain in its
decision of December 5, 1903, held:.

That in accordance with the ruling of the supreme court of Spain in its decisions dated
May 11, 1897, November 25, 1899, and July 5, 1901, the option which article 149 grants
the person, obliged to furnish subsistence, between paying the pension fixed or receiving
and keeping in his own house the party who is entitled to the same, is not so absolute as
to prevent cases being considered wherein, either because this right would be opposed to
the exercise of a preferential right or because of the existence of some justifiable cause
morally opposed to the removal of the party enjoying the maintenance, the right of
selection must be understood as being thereby restricted.

Whereas the only question discussed in the case which gave rise to this appeal was
whether there was any reason to prevent the exercise of the option granted by article 149
of the Civil Code to the person obliged to furnish subsistence, to receive and maintain in
his own house the one who is entitled to receive it; and inasmuch as nothing has been
alleged or discussed with regard to the parental authority of Pedro Alcantara Calvo,
which he ha not exercised, and it having been set forth that the natural father simply
claims his child for the purpose of thus better attending to her maintenance, no action
having been taken by him toward providing the support until, owing to such negligence,
the mother was obliged to demand it; it is seen that these circumstances, together with the
fact of the marriage of Pedro Alcantara, and that it would be difficult for the mother to
maintain relations with her daughter, all constitute an impediment of such a nature as to
prevent the exercise of the option in the present case, without prejudice to such decision
as may be deemed proper with regard to the other questions previously cited in respect to
which no opinion should be expressed at this time.

The above was quoted with approval in United States and De Jesus vs. Alvir (9 Phil. Rep., 576),
wherein the court held that the rule laid down in article 149 of the Civil Code "is not absolute."
but it is insisted that there existed a preexisting or preferential right in each of these cases which
was opposed to the removal of the one entitled to support. It is true that in the first the person
claiming the option was the natural father of the child and had married a woman other than the
child's mother, and in the second the right to support had already been established by a final
judgment in a criminal case. Notwithstanding these facts the two cases clearly established the
proposition that the option given by article 149 of the Civil Code may not be exercised in any
and all cases.

Counsel for the defendant cite, in support of their contention, the decision of the supreme court
of Spain, dated November 3, 1905. In this case Don Berno Comas, as a result of certain business
reverses and in order no to prejudice his wife, conferred upon her powers to administer and
dispose of her property. When she left him he gave her all the muniments of title, mortgage
credits, notes, P10,000 in accounts receivable, and the key to the safe in which he kept a large
amount of jewels, thus depriving himself of all his possessions and being reduced in
consequence to want. Subsequently he instituted this civil action against his wife, who was then
living in opulence, for support and the revocation of the powers heretofore granted in reference
to the administration and disposal of her property. In her answer the wife claimed that the
plaintiff (her husband) was not legally in a situation to claim support and that the powers
voluntarily conferred and accepted by her were bilateral and could not be canceled by the
plaintiff. From a judgment in favor of the plaintiff the defendant wife appealed to the Audencia
Territorial wherein, after due trial, judgment was rendered in her favor dismissing the action
upon the merits. The plaintiff appealed to the supreme court and that high tribunal, in affirming
the judgment of the Audencia Territorial, said:

Considering that article 143, No. 1, of the Civil Code, providing that the spouses are
mutually obliged to provide each other with support, cannot but be subordinate to the
other provisions of said Code which regulates the family organization and the duties of
spouses not legally separated, among which duties are those of their living together and
mutually helping each other, as provided in article 56 of the aforementioned code; and
taking this for granted, the obligation of the spouse who has property to furnish support to
the one who has no property and is in need of it for subsistence, is to be understood as
limited to the case where, in accordance with law, their separation has been decreed,
either temporarily or finally and this case, with respect to the husband, cannot occur until
a judgment of divorce is rendered, since, until then, if he is culpable, he is not deprived of
the management of his wife's property and of the product of the other property belonging
to the conjugal partnership; and

Considering that, should the doctrine maintained in the appeal prevail, it would allow
married persons to disregard the marriage bond and separate from each other of their own
free will, thus establishing, contrary to the legal provision contained in said article 56 of
the Civil Code, a legal status entirely incompatible with the nature and effects of marriage
in disregard of the duties inherent therein and disturbing the unity of the family, in
opposition to what the law, in conformity with good morals, has established; and.

Considering that, as the spouses D. Ramon Benso and Doa Adela Galindo are not
legally separated, it is their duty to live together and afford each other help and support;
and for this reason, it cannot be held that the former has need of support from his wife so
that he may live apart from her without the conjugal abode where it is his place to be, nor
of her conferring power upon him to dispose even of the fruits of her property in order
therewith to pay the matrimonial expenses and, consequently, those of his own support
without need of going to his wife; wherefore the judgment appealed from, denying the
petition of D. Ramon Benso for support, has not violated the articles of the Civil Code
and the doctrine invoked in the assignments of error 1 and 5 of the appeal.

From a careful reading of the case just cited and quoted from it appears quite clearly that the
spouses separated voluntarily in accordance with an agreement previously made. At least there
are strong indications to this effect, for the court says, "should the doctrine maintained in the
appeal prevail, it would allow married persons to disregard the marriage bond and separate from
each other of their own free will." If this be the true basis upon which the supreme court of Spain
rested its decision, then the doctrine therein enunciated would not be controlling in cases where
one of the spouses was compelled to leave the conjugal abode by the other or where the husband
voluntarily abandons such abode and the wife seeks to force him to furnish support. That this is
true appears from the decision of the same high tribunal, dated October 16, 1903. In this case the
wife brought an action for support against her husband who had willfully and voluntarily
abandoned the conjugal abode without any cause whatever. The supreme court, reversing the
judgment absolving the defendant upon the ground that no action for divorce, etc., had been
instituted, said:

In the case at bar, it has been proven that it was Don Teodoro Exposito who left the
conjugal abode, although he claims, without however proving his contention, that the
person responsible for this situation was his wife, as she turned him out of the house.
From this state of affairs it results that it is the wife who is party abandoned, the husband
not having prosecuted any action to keep her in his company and he therefore finds
himself, as long as he consents to the situation, under the ineluctable obligation to support
his wife in fulfillment of the natural duty sanctioned in article 56 of the Code in relation
with paragraph 1 of article 143. In not so holding, the trial court, on the mistaken ground
that for the fulfillment of this duty the situation or relation of the spouses should be
regulated in the manner it indicates, has made the errors of law assigned in the first three
grounds alleged, because the nature of the duty of affording mutual support is compatible
and enforcible in all situations, so long as the needy spouse does not create any illicit
situation of the court above described.lawphil.net

If we are in error as to the doctrine enunciated by the supreme court of Spain in its decision of
November 3, 1905, and if the court did hold, as contended by counsel for the defendant in the
case under consideration, that neither spouse can be compelled to support the other outside of the
conjugal abode, unless it be by virtue of a final judgment granting the injured one a divorce or
separation from the other, still such doctrine or holding would not necessarily control in this
jurisdiction for the reason that the substantive law is not in every particular the same here as it is
in Spain. As we have already stated, articles 42 to 107 of the Civil Code in force in the Peninsula
are not in force in the Philippine Islands. The law governing the duties and obligations of
husband and wife in this country are articles 44 to 78 of the Law of Civil Marriage of 1870 .In
Spain the complaining spouse has, under article 105 of the Civil Code, various causes for
divorce, such as adultery on the part of the wife in every case and on the part of the husband
when public scandal or disgrace of the wife results therefrom; personal violence actually
inflicted or grave insults: violence exercised by the husband toward the wife in order to force her
to change her religion; the proposal of the husband to prostitute his wife; the attempts of the
husband or wife to corrupt their sons or to prostitute their daughters; the connivance in their
corruption or prostitution; and the condemnation of a spouse to perpetual chains or hard labor,
while in this jurisdiction the only ground for a divorce is adultery. (Benedicto vs. De la Rama, 3
Phil .Rep., 34, 45.) This positive and absolute doctrine was announced by this court in the case
just cited after an exhaustive examination of the entire subject. Although the case was appealed
to the Supreme Court of the United States and the judgment rendered by this court was there
reversed, the reversal did not affect in any way or weaken the doctrine in reference to adultery
being the only ground for a divorce. And since the decision was promulgated by this court in that
case in December, 1903, no change or modification of the rule has been announced. It is,
therefore, the well settled and accepted doctrine in this jurisdiction.
But it is argued that to grant support in an independent suit is equivalent to granting divorce or
separation, as it necessitates a determination of the question whether the wife has a good and
sufficient cause for living separate from her husband; and, consequently, if a court lacks power to
decree a divorce, as in the instant case, power to grant a separate maintenance must also be
lacking. The weakness of this argument lies in the assumption that the power to grant support in
a separate action is dependent upon a power to grant a divorce. That the one is not dependent
upon the other is apparent from the very nature of the marital obligations of the spouses. The
mere act of marriage creates an obligation on the part of the husband to support his wife. This
obligation is founded not so much on the express or implied terms of the contract of marriage as
on the natural and legal duty of the husband; an obligation, the enforcement of which is of such
vital concern to the state itself that the laws will not permit him to terminate it by his own
wrongful acts in driving his wife to seek protection in the parental home. A judgment for separate
maintenance is not due and payable either as damages or as a penalty; nor is it a debt in the strict
legal sense of the term, but rather a judgment calling for the performance of a duty made specific
by the mandate of the sovereign. This is done from necessity and with a view to preserve the
public peace and the purity of the wife; as where the husband makes so base demands upon his
wife and indulges in the habit of assaulting her. The pro tanto separation resulting from a decree
for separate support is not an impeachment of that public policy by which marriage is regarded
as so sacred and inviolable in its nature; it is merely a stronger policy overruling a weaker one;
and except in so far only as such separation is tolerated as a means of preserving the public peace
and morals may be considered, it does not in any respect whatever impair the marriage contract
or for any purpose place the wife in the situation of a feme sole.

The foregoing are the grounds upon which our short opinion and order for judgment, heretofore
filed in this case, rest.

Torres, Johnson and Carson, JJ., concur.

Separate Opinions

MORELAND, J., concurring:

I based my vote in this case upon the ground that a husband cannot, by his own wrongful acts,
relieve himself from the duty to support his wife imposed by law; and where a husband, by
wrongful, illegal, and unbearable conduct, drives his wife from the domicile fixed by him, he
cannot take advantage of her departure to abrogate the law applicable to the marital relation and
repudiate his duties thereunder. In law and for all purposes within its purview, the wife still
remains an inmate of the conjugal domicile; for I regard it as a principle of law universally
recognized that where a person by his wrongful and illegal acts creates a condition which under
ordinary circumstances would produce the loss of rights or status pertaining to another, the law
will, whenever necessary to protect fully the rights or status of the person affected by such acts,
regard the condition by such acts created as not existing and will recur to and act upon the
original situation of the parties to determine their relative rights or the status of the person
adversely affected.
I do not believe, therefore, that the case is properly conceived by defendant, when the
consideration thereof proceeds solely on the theory that the wife is outside the domicile fixed by
the husband. Under the facts alleged in the complainant the wife is legally still within the
conjugal domicile.

EN BANC

August 11, 1921

G.R. No. L-17014

MARIANO B. ARROYO, plaintiff-appellant,
vs.
DOLORES C. VASQUEZ DE ARROYO, defendant-appellee.

Fisher & DeWitt for appellant.

Powell & Hill for appellee.

STREET, J.:

Mariano B. Arroyo and Dolores C. Vasquez de Arroyo were united in the bonds of wedlock by
marriage in the year 1910, and since that date, with a few short intervals of separation, they have
lived together as man and wife in the city of Iloilo until July 4, 1920, when the wife went away
from their common home with the intention of living thenceforth separate from her husband.
After efforts had been made by the husband without avail to induce her to resume marital
relations, this action was initiated by him to compel her to return to the matrimonial home and
live with him as a dutiful wife. The defendant answered, admitting the fact of marriage, and that
she had left her husband's home without his consent; but she averred by way of defense and
cross-complaint that she had been compelled to leave by cruel treatment on the part of her
husband. Accordingly she in turn prayed for affirmative relief, to consist of (1) a decree of
separation; (2) a liquidation of the conjugal partnership; (3) and an allowance for counsel fees
and permanent separate maintenance. Upon hearing the cause the lower court gave judgment in
favor of the defendant, authorizing her to live apart from her husband, granting her alimony at
the rate of P400 per month, and directing that the plaintiff should pay to the defendant's attorney
the sum of P1,000 for his services to defendant in the trial of the case. The plaintiff thereupon
removed the case with the usual formalities by appeal to this court.

The trial judge, upon consideration of the evidence before him, reached the conclusion that the
husband was more to blame than his wife and that his continued ill-treatment of her furnished
sufficient justification for her abandonment of the conjugal home and the permanent breaking off
of marital relations with him. We have carefully examined and weighed every line of the proof,
and are of the opinion that the conclusion stated is wholly untenable. The evidence shows that
the wife is afflicted with a disposition of jealousy towards her husband in an aggravated degree;
and to his cause are chiefly traceable without a doubt the many miseries that have attended their
married life. In view of the decision which we are to pronounce nothing will be said in this
opinion which will make the resumption of married relations more difficult to them or serve as a
reminder to either of the mistakes of the past; and we prefer to record the fact that so far as the
proof in this record shows neither of the spouses has at any time been guilty of conjugal
infidelity, or has given just cause to the other to suspect illicit relations with any person. The tales
of cruelty on the part of the husband towards the wife, which are the basis of the cross-action, are
in our opinion no more than highly colored versions of personal wrangles in which the spouses
have allowed themselves from time to time to become involved and would have little
significance apart from the morbid condition exhibited by the wife. The judgment must therefore
be recorded that the abandonment by her of the marital home was without sufficient justification
in fact.

In examining the legal questions involved, it will be found convenient to dispose first of the
defendant's cross-complaint. To begin with, the obligation which the law imposes on the husband
to maintain the wife is a duty universally recognized in civil society and is clearly expressed in
articles 142 and 143 of the Civil code. The enforcement of this obligation by the wife against the
husband is not conditioned upon the procurance of a divorce by her, nor even upon the existence
of a cause for divorce. Accordingly it had been determined that where the wife is forced to leave
the matrimonial abode and to live apart from her husband, she can, in this jurisdiction, compel
him to make provision for her separate maintenance (Goitia vs. Campos Rueda, 35 Phil., 252);
and he may be required to pay the expenses, including attorney's fees, necessarily incurred in
enforcing such obligation, (Mercado vs. Ostrand and Ruiz, 37 Phil., 179.) Nevertheless, the
interests of both parties as well as of society at large require that the courts should move with
caution in enforcing the duty to provide for the separate maintenance of the wife, for this step
involves a recognition of the de facto separation of the spouses a state which is abnormal and
fraught with grave danger to all concerned. From this consideration it follows that provision
should not be made for separate maintenance in favor of the wife unless it appears that the
continued cohabitation of the pair has become impossible and separation necessary from the fault
of the husband.

In Davidson vs. Davidson, the Supreme Court of Michigan, speaking through the eminent jurist,
Judge Thomas M. Cooley, held that an action for the support of the wife separate from the
husband will only be sustained when the reasons for it are imperative (47 Mich., 151). That
imperative necessity is the only ground on which such a proceeding can be maintained also
appears from the decision in Schindel vs. Schindel (12 Md., 294). In the State of South Carolina,
where judicial divorces have never been procurable on any ground, the Supreme court fully
recognizes the right of the wife to have provision for separate maintenance, where it is
impossible for her to continue safely to cohabit with her husband; but the same court has more
than once rejected the petition of the wife for separate maintenance where it appeared that the
husband's alleged cruelty or ill-treatment was provoked by the wife's own improper conduct.
(Rhame vs. Rhame, 1 McCord's Chan. [S. Car.], 197; 16 Am. Dec., 597; Boyd vs. Boyd, Har. Eq.
[S. Car.], 144.)

Upon one occasion Sir William Scott, pronouncing the judgment of the English Ecclesiastical
Court in a case where cruelty on the part of the husband was relied upon to secure a divorce for
the wife, made use of the following eloquent words, which are perhaps even more applicable
in a proceeding for separate maintenance in a jurisdiction where, as here, a divorce cannot be
obtained except on the single ground of adultery and this, too, after the conviction of the guilty
spouse in a criminal prosecution for that crime. Said he:

That the duty of cohabitation is released by the cruelty of one of the parties is admitted, but the
question occurs, What is cruelty? . . .

What merely wounds the mental feelings is in few cases to be admitted where they are not
accompanied with bodily injury, either actual or menaced. Mere austerity of temper, petulance of
manners, rudeness of language, a want of civil attention and accommodation, even occasional
sallies of passion, if they do not threaten bodily harm, do not amount to legal cruelty: they are
high moral offenses in the marriage-state undoubtedly, not innocent surely in any state of life, but
still they are not that cruelty against which the law can relieve. Under such misconduct of either
of the parties, for it may exist on the one side as well as on the other, the suffering party must
bear in some degree the consequences of an injudicious connection; must subdue by decent
resistance or by prudent conciliation; and if this cannot be done, both must suffer in silence. . . .

The humanity of the court has been loudly and repeatedly invoked. Humanity is the second
virtue of courts, but undoubtedly the first is justice. If it were a question of humanity simply, and
of humanity which confined its views merely to the happiness of the present parties, it would be
a question easily decided upon first impressions. Every body must feel a wish to sever those who
wish to live separate from each other, who cannot live together with any degree of harmony, and
consequently with any degree of happiness; but my situation does not allow me to indulge the
feelings, much less the first feelings of an individual. The law has said that married persons shall
not be legally separated upon the mere disinclination of one or both to cohabit together. . . .

To vindicate the policy of the law is no necessary part of the office of a judge; but if it were, it
would not be difficult to show that the law in this respect has acted with its usual wisdom and
humanity with that true wisdom, and that real humanity, that regards the general interests of
mankind. For though in particular cases the repugnance of the law to dissolve the obligations of
matrimonial cohabitation may operate with great severity upon individual, yet it must be
carefully remembered that the general happiness of the married life is secured by its
indissolubility. When people understand that they must live together, except for a very few
reasons known to the law, they learn to soften by mutual accommodation that yoke which they
know cannot shake off; they become good husbands and good wives form the necessity of
remaining husbands and wives; for necessity is a powerful master in teaching the duties which it
imposes. . . . In this case, as in many others, the happiness of some individuals must be sacrificed
to the greater and more general good. (Evans vs. Evans, 1 Hag. Con., 35; 161 Eng. Reprint, 466,
467.)

In the light of the considerations stated, it is obvious that the cross-complaint is not well founded
and none of the relief sought therein can be granted.

The same considerations that require the dismissal of the cross-complaint conclusively prove that
the plaintiff, Mariano B. Arroyo, has done nothing to forfeit his right to the marital society of his
wife and that she is under an obligation, both moral and legal, to return to the common home and
cohabit with him. The only question which here arises is as to the character and extent of the
relief which may be properly conceded to him by judicial decree.

The action is one by which the plaintiff seeks the restitution of conjugal rights; and it is supposed
in the petitory part of the complaint that he is entitled to a permanent mandatory injunction
requiring the defendant to return to the conjugal home and live with him as a wife according to
the precepts of law and morality. Of course if such a decree were entered, in unqualified terms,
the defendant would be liable to attachment for contempt, in case she should refuse to obey it;
and, so far as the present writer is aware, the question is raised for the first time in this
jurisdiction whether it is competent for the court to make such an order.

Upon examination of the authorities we are convinced that it is not within the province of the
courts of this country to attempt to compel one of the spouses to cohabit with, and render
conjugal rights to, the other. Of course where the property rights of one of the pair are invaled, an
action for restitution of such rights can be maintained. But we are disinclined to sanction the
doctrine that an order, enforcible by process of contempt, may be entered to compel the
restitution of the purely personal rights of consortium. At best such an order can be effective for
no other purpose than to compel the spouses to live under the same roof; and the experience of
these countries where the court of justice have assumed to compel the cohabitation of married
people shows that the policy of the practice is extremely questionable. Thus in England, formerly
the Ecclesiastical Court entertained suits for the restitution of conjugal rights at the instance of
either husband or wife; and if the facts were found to warrant it that court would make a
mandatory decree, enforcible by process of contempt in case of disobedience, requiring the
delinquent party to live with the other and render conjugal rights. Yet this practice was
sometimes criticized even by the judges who felt bound to enforce such orders, and in Weldon
vs. Weldon (9 P. D., 52), decided in 1883, Sir James Hannen, President in the Probate, Divorce
and Admiralty Division of the High Court of Justice, expressed his regret that the English law on
the subject was not the same as that which prevailed in Scotland, where a decree of adherence,
equivalent to the decree for the restitution of conjugal rights in England, could be obtained by the
injured spouse, but could not be enforced by imprisonment. Accordingly, in obedience to the
growing sentiment against the practice, the Matrimonial Causes Act (1884) abolished the remedy
of imprisonment; though a decree for the restitution of conjugal rights can still be procured, and
in case of disobedience may serve in appropriate cases as the basis of an order for the periodical
payment of a stipend in the character of alimony.

In the voluminous jurisprudence of the United States, only one court, so far as we can discover,
has ever attempted to make a peremptory order requiring one of the spouses to live with the
other; and that was in a case where a wife was ordered to follow and live with her husband, who
had changed his domicile to the City of New Orleans. The decision referred to (Gahn vs. Darby,
36 La. Ann., 70) was based on a provision of the Civil Code of Louisiana similar to article 56 of
the Spanish Civil Code. It was decided many years ago, and the doctrine evidently has not been
fruitful even in the State of Louisiana. In other states of the American Union the idea of
enforcing cohabitation by process of contempt is rejected. (21 Cyc., 1148.)

In a decision of January 2, 1909, the supreme court of Spain appears to have affirmed an order of
the Audencia Territorial de Valladolid requiring a wife to return to the marital domicile, and in
the alternative, upon her failure to do so, to make a particular disposition of certain money and
effects then in her possession and to deliver to her husband, as administrator of the ganancial
property, all income, rents, and interest which might accrue to her from the property which she
had brought to the marriage. (113 Jur. Civ., pp. 1, 11.) but it does not appear that this order for
the return of the wife to the marital domicile was sanctioned by any other penalty than the
consequences that would be visited upon her in respect to the use and control of her property;
and it does not appear that her disobedience to that order would necessarily have been followed
by imprisonment for contempt.

We are therefore unable to hold that Mariano B. Arroyo in this case is entitled to the
unconditional and absolute order for the return of the wife to the marital domicile, which is
sought in the petitory part of the complaint; though he is, without doubt, entitled to a judicial
declaration that his wife has presented herself without sufficient cause and that it is her duty to
return sP2CzwFY.
Therefore, reversing the judgment appealed from, in respect both to the original complaint and
the cross-bill, it is declared that Dolores Vasquez de Arroyo has absented herself from the marital
home without sufficient cause; and she is admonished that it is her duty to return. The plaintiff is
absolved from the cross-complaint, without special pronouncement as to costs of either instance.
So ordered.

FIRST DIVISION

G.R. No. 139789 July 19, 2001

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF POTENCIANO

ILUSORIO, ERLINDA K. ILUSORIO, petitioner,
vs.
ERLINDA K. ILUSORIO-BILDNER, SYLVIA K. ILUSORIO-YAP, JOHN DOES and
JANE DOES, respondents.

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

G.R. No. 139808 July 19, 2001

POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER and SYLVIA K. ILUSORIO,

petitioners,
vs.
HON. COURT OF APPEALS and ERLINDA K. ILUSORIO, respondents.

R E S OLUTIO N

PARDO, J.:

Once again we see the sad tale of a prominent family shattered by conflicts on expectancy in
fabled fortune.

On March 11, 1999, Erlinda K. Ilusorio, the matriarch who was so lovingly inseparable from her
husband some years ago, filed a petition with the Court of Appeals1 for habeas corpus to have
custody of her husband in consortium.

On April 5, 1999, the Court of Appeals promulgated its decision dismissing the petition for lack
of unlawful restraint or detention of the subject, Potenciano Ilusorio.

Thus, on October 11, 1999, Erlinda K. Ilusorio filed with the Supreme Court an appeal via
certiorari pursuing her desire to have custody of her husband Potenciano Ilusorio.2 This case was
consolidated with another case3 filed by Potenciano Ilusorio and his children, Erlinda I. Bildner
and Sylvia K. Ilusorio appealing from the order giving visitation rights to his wife, asserting that
he never refused to see her.

On May 12, 2000, we dismissed the petition for habeas corpus4 for lack of merit, and granted the
petition5 to nullify the Court of Appeals' ruling6 giving visitation rights to Erlinda K. Ilusorio.7

What is now before the Court is Erlinda's motion to reconsider the decision.8

On September 20, 2000, we set the case for preliminary conference on October 11, 2000, at
10:00 a. m., without requiring the mandatory presence of the parties.

In that conference, the Court laid down the issues to be resolved, to wit:

(a) To determine the propriety of a physical and medical examination of petitioner

Potenciano Ilusorio;

(b) Whether the same is relevant; and

(c) If relevant, how the Court will conduct the same.9

The parties extensively discussed the issues. The Court, in its resolution, enjoined the parties and
their lawyers to initiate steps towards an amicable settlement of the case through mediation and
other means.

On November 29, 2000, the Court noted the manifestation and compliance of the parties with the
resolution of October 11, 2000.10

On January 31, 2001, the Court denied Erlinda Ilusorio's manifestation and motion praying that
Potenciano Ilusorio be produced before the Court and be medically examined by a team of
medical experts appointed by the Court.11

On March 27, 2001, we denied with finality Erlinda's motion to reconsider the Court's order of
January 31 , 2001.12

The issues raised by Erlinda K. Ilusorio in her motion for reconsideration are mere reiterations of
her arguments that have been resolved in the decision.

Nevertheless, for emphasis, we shall discuss the issues thus:

First. Erlinda K. Ilusorio claimed that she was not compelling Potenciano to live with her in
consortium and that Potenciano's mental state was not an issue. However, the very root cause of
the entire petition is her desire to have her husband's custody.13 Clearly, Erlinda cannot now deny
that she wanted Potenciano Ilusorio to live with her.

Second. One reason why Erlinda K. Ilusorio sought custody of her husband was that respondents
Lin and Sylvia were illegally restraining Potenciano Ilusorio to fraudulently deprive her of
property rights out of pure greed.14 She claimed that her two children were using their sick and
frail father to sign away Potenciano and Erlinda's property to companies controlled by Lin and
Sylvia. She also argued that since Potenciano retired as director and officer of Baguio Country
Club and Philippine Oversees Telecommunications, she would logically assume his position and
control. Yet, Lin and Sylvia were the ones controlling the corporations.15

The fact of illegal restraint has not been proved during the hearing at the Court of Appeals on
March 23, 1999.16 Potenciano himself declared that he was not prevented by his children from
seeing anybody and that he had no objection to seeing his wife and other children whom he
loved.

Erlinda highlighted that her husband suffered from various ailments. Thus, Potenciano Ilusorio
did not have the mental capacity to decide for himself. Hence, Erlinda argued that Potenciano be
brought before the Supreme Court so that we could determine his mental state.

We were not convinced that Potenciano Ilusorio was mentally incapacitated to choose whether to
see his wife or not. Again, this is a question of fact that has been decided in the Court of Appeals.

As to whether the children were in fact taking control of the corporation, these are matters that
may be threshed out in a separate proceeding, irrelevant in habeas corpus.

Third. Petitioner failed to sufficiently convince the Court why we should not rely on the facts
found by the Court of Appeals. Erlinda claimed that the facts mentioned in the decision were
erroneous and incomplete. We see no reason why the High Court of the land need go to such
length. The hornbook doctrine states that findings of fact of the lower courts are conclusive on
the Supreme Court.17 We emphasize, it is not for the Court to weigh evidence all over again.18
Although there are exceptions to the rule,19 Erlinda failed to show that this is an exceptional
instance.

Fourth. Erlinda states that Article XII of the 1987 Constitution and Articles 68 and 69 of the
Family Code support her position that as spouses, they (Potenciano and Erlinda) are duty bound
to live together and care for each other. We agree.

The law provides that the husband and the wife are obliged to live together, observe mutual love,
respect and fidelity.20 The sanction therefor is the "spontaneous, mutual affection between
husband and wife and not any legal mandate or court order" to enforce consortium.21

Obviously, there was absence of empathy between spouses Erlinda and Potenciano, having
separated from bed and board since 1972. We defined empathy as a shared feeling between
husband and wife experienced not only by having spontaneous sexual intimacy but a deep sense
of spiritual communion. Marital union is a two-way process.

Marriage is definitely for two loving adults who view the relationship with "amor gignit
amorem" respect, sacrifice and a continuing commitment to togetherness, conscious of its value
as a sublime social institution.22
On June 28, 2001, Potenciano Ilusorio gave his soul to the Almighty, his Creator and Supreme
Judge. Let his soul rest in peace and his survivors continue the much prolonged fracas ex aequo
et bono.

IN VIEW WHEREOF, we DENY Erlinda's motion for reconsideration. At any rate, the case has
been rendered moot by the death of subject.

SECOND DIVISION

[G.R. No. 146683. November 22, 2001]

CIRILA ARCABA, petitioner, vs. ERLINDA TABANCURA VDA. DE BATOCAEL,

SEIGFREDO C. TABANCURA, DORIS C. TABANCURA, LUZELLI C. TABANCURA,
BELEN C. TABANCURA, RAUL A. COMILLE, BERNADETTE A. COMILLE, and ABNER
A. COMILLE, respondents.

DECISION

MENDOZA, J.:

Petitioner Cirila Arcaba seeks review on certiorari of the decision of the Court of Appeals, which
affirmed with modification the decision of the Regional Trial Court, Branch 10, Dipolog City,
Zamboanga del Norte in Civil Case No. 4593, declaring as void a deed of donation inter vivos
executed by the late Francisco T. Comille in her favor and its subsequent resolution denying
reconsideration.

The facts are as follows:

On January 16, 1956, Francisco Comille and his wife Zosima Montallana became the registered
owners of Lot No. 437-A located at the corner of Calle Santa Rosa (now Balintawak Street) and
Calle Rosario (now Rizal Avenue) in Dipolog City, Zamboanga del Norte. The total area of the
lot was 418 square meters. After the death of Zosima on October 3, 1980, Francisco and his
mother-in-law, Juliana Bustalino Montallana, executed a deed of extrajudicial partition with
waiver of rights, in which the latter waived her share consisting of one-fourth (1/4) of the property
to Francisco. On June 27, 1916, Francisco registered the lot in his name with the Registry of
Deeds.

Having no children to take care of him after his retirement, Francisco asked his niece Leticia
Bellosillo, the latters cousin, Luzviminda Paghacian, and petitioner Cirila Arcaba, then a widow,
to take care of his house, as well as the store inside.

Conflicting testimonies were offered as to the nature of the relationship between Cirila and
Francisco. Leticia Bellosillo said Francisco and Cirila were lovers since they slept in the same
room, while Erlinda Tabancura, another niece of Francisco, claimed that the latter had told her
that Cirila was his mistress. On the other hand, Cirila said she was a mere helper who could enter
the masters bedroom only when the old man asked her to and that Francisco in any case was too
old for her. She denied they ever had sexual intercourse.

It appears that when Leticia and Luzviminda were married, only Cirila was left to take care of
Francisco. Cirila testified that she was a 34-year old widow while Francisco was a 75-year old
widower when she began working for the latter; that he could still walk with her assistance at
that time; and that his health eventually deteriorated and he became bedridden. Erlinda
Tabancura testified that Franciscos sole source of income consisted of rentals from his lot near
the public streets. He did not pay Cirila a regular cash wage as a househelper, though he provided
her family with food and lodging.

On January 24, 1991, a few months before his death, Francisco executed an instrument
denominated Deed of Donation Inter Vivos, in which he ceded a portion of Lot 437-A,
consisting of 150 square meters, together with his house, to Cirila, who accepted the donation in
the same instrument. Francisco left the larger portion of 268 square meters in his name. The
deed stated that the donation was being made in consideration of the faithful services [Cirila
Arcaba] had rendered over the past ten (10) years. The deed was notarized by Atty. Vic T.
Lacaya, Sr. and later registered by Cirila as its absolute owner.

On October 4, 1991, Francisco died without any children. In 1993, the lot which Cirila received
from Francisco had a market value of P57,105.00 and an assessed value of P28,550.00.

On February 18, 1993, respondents filed a complaint against petitioner for declaration of nullity
of a deed of donation inter vivos, recovery of possession, and damages. Respondents, who are
the decedents nephews and nieces and his heirs by intestate succession, alleged that Cirila was
the common-law wife of Francisco and the donation inter vivos made by Francisco in her favor is
void under Article 87 of the Family Code, which provides:

Every donation or grant of gratuitous advantage, direct or indirect, between the spouses during
the marriage shall be void, except moderate gifts which the spouses may give each other on the
occasion of any family rejoicing. The prohibition shall also apply to persons living together as
husband and wife without a valid marriage.

On February 25, 1999, the trial court rendered judgment in favor of respondents, holding the
donation void under this provision of the Family Code. The trial court reached this conclusion
based on the testimony of Erlinda Tabancura and certain documents bearing the signature of one
Cirila Comille. The documents were (1) an application for a business permit to operate as real
estate lessor, dated January 8, 1991, with a carbon copy of the signature Cirila Comille; (2) a
sanitary permit to operate as real estate lessor with a health certificate showing the signature
Cirila Comille in black ink; and (3) the death certificate of the decedent with the signature
Cirila A. Comille written in black ink. The dispositive portion of the trial courts decision
states:

WHEREFORE, in view of the foregoing, judgment is rendered:

1. Declaring the Deed of Donation Inter Vivos executed by the late Francisco Comille recorded
as Doc. No. 7; Page No. 3; Book No. V; Series of 1991 in the Notarial Register of Notary Public
Vic T. Lacaya (Annex A to the Complaint) null and void;

2. Ordering the defendant to deliver possession of the house and lot subject of the deed unto the
plaintiffs within thirty (30) days after finality of this decision; and finally

3. Ordering the defendant to pay attorneys fees in the sum of P10,000.00.

SO ORDERED.

Petitioner appealed to the Court of Appeals, which rendered on June 19, 2000 the decision
subject of this appeal. As already stated, the appeals court denied reconsideration. Its conclusion
was based on (1) the testimonies of Leticia, Erlinda, and Cirila; (2) the copies of documents
purportedly showing Cirilas use of Franciscos surname; (3) a pleading in another civil case
mentioning payment of rentals to Cirila as Franciscos common-law wife; and (4) the fact that
Cirila did not receive a regular cash wage.

Petitioner assigns the following errors as having been committed by the Court of Appeals:

(a) The judgment of the Court of Appeals that petitioner was the common-law wife of the late
Francisco Comille is not correct and is a reversible error because it is based on a
misapprehension of facts, and unduly breaks the chain of circumstances detailed by the totality
of the evidence, its findings being predicated on totally incompetent or hearsay evidence, and
grounded on mere speculation, conjecture or possibility. (Salazar v. Gutierrez, 33 SCRA 243 and
other cases; cited in Quiason, Philippine Courts and their Jurisdictions, 1993 ed., p. 604)

(b) The Court of Appeals erred in shifting the burden of evidence from the plaintiff to defendant.
(Bunyi v. Reyes, 39 SCRA 504; Quiason, id.)

(c) The Court of Appeals decided the case in a way probably not in accord with law or with the
applicable jurisprudence in Rodriguez v. Rodriguez, 20 SCRA 908, and Liguez v. CA, 102 Phil.
577, 584.

The issue in this case is whether the Court of Appeals correctly applied Art. 87 of the Family
Code to the circumstances of this case. After a review of the records, we rule in the affirmative.

The general rule is that only questions of law may be raised in a petition for review under Rule
45 of the Rules of Court, subject only to certain exceptions: (a) when the conclusion is a finding
grounded entirely on speculations, surmises, or conjectures; (b) when the inference made is
manifestly mistaken, absurd, or impossible; (c) where there is grave abuse of discretion; (d)
when the judgment is based on a misapprehension of facts; (e) when the findings of fact are
conflicting; (f) when the Court of Appeals, in making its findings, went beyond the issues of the
case and the same are contrary to the admissions of both appellant and appellee; (g) when the
findings of the Court of Appeals are contrary to those of the trial court; (h) when the findings of
fact are conclusions without citation of specific evidence on which they are based; (i) when the
finding of fact of the Court of Appeals is premised on the supposed absence of evidence but is
contradicted by the evidence on record; and (j) when the Court of Appeals manifestly overlooked
certain relevant facts not disputed by the parties and which, if properly considered, would justify
a different conclusion. It appearing that the Court of Appeals based its findings on evidence
presented by both parties, the general rule should apply.

In Bitangcor v. Tan, we held that the term cohabitation or living together as husband and
wife means not only residing under one roof, but also having repeated sexual intercourse.
Cohabitation, of course, means more than sexual intercourse, especially when one of the parties
is already old and may no longer be interested in sex. At the very least, cohabitation is the public
assumption by a man and a woman of the marital relation, and dwelling together as man and
wife, thereby holding themselves out to the public as such. Secret meetings or nights
clandestinely spent together, even if often repeated, do not constitute such kind of cohabitation;
they are merely meretricious. In this jurisdiction, this Court has considered as sufficient proof of
common-law relationship the stipulations between the parties, a conviction of concubinage, or
the existence of illegitimate children.

Was Cirila Franciscos employee or his common-law wife? Cirila admitted that she and
Francisco resided under one roof for a long time. It is very possible that the two consummated
their relationship, since Cirila gave Francisco therapeutic massage and Leticia said they slept in
the same bedroom. At the very least, their public conduct indicated that theirs was not just a
relationship of caregiver and patient, but that of exclusive partners akin to husband and wife.

Aside from Erlinda Tabancuras testimony that her uncle told her that Cirila was his mistress,
there are other indications that Cirila and Francisco were common-law spouses. Seigfredo
Tabancura presented documents apparently signed by Cirila using the surname Comille. As
previously stated, these are an application for a business permit to operate as a real estate lessor,
a sanitary permit to operate as real estate lessor with a health certificate, and the death certificate
of Francisco. These documents show that Cirila saw herself as Franciscos common-law wife,
otherwise, she would not have used his last name. Similarly, in the answer filed by Franciscos
lessees in Erlinda Tabancura, et al. vs. Gracia Adriatico Sy and Antonio Sy, RTC Civil Case
No. 4719 (for collection of rentals), these lessees referred to Cirila as the common-law spouse
of Francisco. Finally, the fact that Cirila did not demand from Francisco a regular cash wage is
an indication that she was not simply a caregiver-employee, but Franciscos common law
spouse. She was, after all, entitled to a regular cash wage under the law. It is difficult to believe
that she stayed with Francisco and served him out of pure beneficence. Human reason would
thus lead to the conclusion that she was Franciscos common-law spouse.

Respondents having proven by a preponderance of evidence that Cirila and Francisco lived
together as husband and wife without a valid marriage, the inescapable conclusion is that the
donation made by Francisco in favor of Cirila is void under Art. 87 of the Family Code.

WHEREFORE, the decision of the Court of Appeals affirming the decision of the trial court is
hereby AFFIRMED.

SECOND DIVISION
G.R. No. 153802. March 11, 2005

HOMEOWNERS SAVINGS & LOAN BANK, Petitioner, vs. MIGUELA C. DAILO,

Respondent.

DECISION

TINGA, J.:

This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court, assailing
the Decision [1] of the Court of Appeals in CA-G.R. CV No. 59986 rendered on June 3, 2002,
which affirmed with modification the October 18, 1997 Decision [2] of the Regional Trial Court,
Branch 29, San Pablo City, Laguna in Civil Case No. SP-4748 (97).

The following factual antecedents are undisputed.

Respondent Miguela C. Dailo and Marcelino Dailo, Jr. were married on August 8, 1967. During
their marriage, the spouses purchased a house and lot situated at Barangay San Francisco, San
Pablo City from a certain Sandra Dalida. The subject property was declared for tax assessment
purposes under Assessment of Real Property No. 94-051-2802. The Deed of Absolute Sale,
however, was executed only in favor of the late Marcelino Dailo, Jr. as vendee thereof to the
exclusion of his wife.[3]

On December 1, 1993, Marcelino Dailo, Jr. executed a Special Power of Attorney (SPA) in favor
of one Lilibeth Gesmundo, authorizing the latter to obtain a loan from petitioner Homeowners
Savings and Loan Bank to be secured by the spouses Dailo's house and lot in San Pablo City.
Pursuant to the SPA, Gesmundo obtained a loan in the amount of P300,000.00 from petitioner.
As security therefor, Gesmundo executed on the same day a Real Estate Mortgage constituted on
the subject property in favor of petitioner. The abovementioned transactions, including the
execution of the SPA in favor of Gesmundo, took place without the knowledge and consent of
respondent.[4]

Upon maturity, the loan remained outstanding. As a result, petitioner instituted extrajudicial
foreclosure proceedings on the mortgaged property. After the extrajudicial sale thereof, a
Certificate of Sale was issued in favor of petitioner as the highest bidder. After the lapse of one
year without the property being redeemed, petitioner, through its vice-president, consolidated the
ownership thereof by executing on June 6, 1996 an Affidavit of Consolidation of Ownership and
a Deed of Absolute Sale.[5]

In the meantime, Marcelino Dailo, Jr. died on December 20, 1995. In one of her visits to the
subject property, respondent learned that petitioner had already employed a certain Roldan Brion
to clean its premises and that her car, a Ford sedan, was razed because Brion allowed a boy to
play with fire within the premises.

Claiming that she had no knowledge of the mortgage constituted on the subject property, which
was conjugal in nature, respondent instituted with the Regional Trial Court, Branch 29, San
Pablo City, Civil Case No. SP-2222 (97) for Nullity of Real Estate Mortgage and Certificate of
Sale, Affidavit of Consolidation of Ownership, Deed of Sale, Reconveyance with Prayer for
Preliminary Injunction and Damages against petitioner. In the latter's Answer with Counterclaim,
petitioner prayed for the dismissal of the complaint on the ground that the property in question
was the exclusive property of the late Marcelino Dailo, Jr.

After trial on the merits, the trial court rendered a Decision on October 18, 1997. The dispositive
portion thereof reads as follows:

WHEREFORE, the plaintiff having proved by the preponderance of evidence the allegations of
the Complaint, the Court finds for the plaintiff and hereby orders:

ON THE FIRST CAUSE OF ACTION:

1. The declaration of the following documents as null and void:

(a) The Deed of Real Estate Mortgage dated December 1, 1993 executed before
Notary Public Romulo Urrea and his notarial register entered as Doc. No.
212; Page No. 44, Book No. XXI, Series of 1993.

(b) The Certificate of Sale executed by Notary Public Reynaldo Alcantara on April
20, 1995.

(c) The Affidavit of Consolidation of Ownership executed by the defendant

(c) The Affidavit of Consolidation of Ownership executed by the defendant over

the residential lot located at Brgy. San Francisco, San Pablo City, covered by
ARP No. 95-091-1236 entered as Doc. No. 406; Page No. 83, Book No. III,
Series of 1996 of Notary Public Octavio M. Zayas.

(d) The assessment of real property No. 95-051-1236.

2. The defendant is ordered to reconvey the property subject of this complaint to the plaintiff.

ON THE SECOND CAUSE OF ACTION

1. The defendant to pay the plaintiff the sum of P40,000.00 representing the value of the car
which was burned.

ON BOTH CAUSES OF ACTION

1. The defendant to pay the plaintiff the sum of P25,000.00 as attorney's fees;

2. The defendant to pay plaintiff P25,000.00 as moral damages;

3. The defendant to pay the plaintiff the sum of P10,000.00 as exemplary damages;
4. To pay the cost of the suit.

The counterclaim is dismissed.

SO ORDERED.[6]

Upon elevation of the case to the Court of Appeals, the appellate court affirmed the trial court's
finding that the subject property was conjugal in nature, in the absence of clear and convincing
evidence to rebut the presumption that the subject property acquired during the marriage of
spouses Dailo belongs to their conjugal partnership.[7] The appellate court declared as void the
mortgage on the subject property because it was constituted without the knowledge and consent
of respondent, in accordance with Article 124 of the Family Code. Thus, it upheld the trial court's
order to reconvey the subject property to respondent.[8] With respect to the damage to
respondent's car, the appellate court found petitioner to be liable therefor because it is responsible
for the consequences of the acts or omissions of the person it hired to accomplish the assigned
task.[9] All told, the appellate court affirmed the trial court's Decision, but deleted the award for
damages and attorney's fees for lack of basis.[10]

Hence, this petition, raising the following issues for this Court's consideration:

1. WHETHER OR NOT THE MORTGAGE CONSTITUTED BY THE LATE MARCELINO

DAILO, JR. ON THE SUBJECT PROPERTY AS CO-OWNER THEREOF IS VALID AS TO
HIS UNDIVIDED SHARE.

2. WHETHER OR NOT THE CONJUGAL PARTNERSHIP IS LIABLE FOR THE PAYMENT

OF THE LOAN OBTAINED BY THE LATE MARCELINO DAILO, JR. THE SAME HAVING
REDOUNDED TO THE BENEFIT OF THE FAMILY.[11]

First, petitioner takes issue with the legal provision applicable to the factual milieu of this case. It
contends that Article 124 of the Family Code should be construed in relation to Article 493 of the
Civil Code, which states:

ART. 493. Each co-owner shall have the full ownership of his part and of the fruits and benefits
pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute
another person in its enjoyment, except when personal rights are involved. But the effect of the
alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which
may be allotted to him in the division upon the termination of the co-ownership.

Article 124 of the Family Code provides in part:

ART. 124. The administration and enjoyment of the conjugal partnership property shall belong to
both spouses jointly. . . .

In the event that one spouse is incapacitated or otherwise unable to participate in the
administration of the conjugal properties, the other spouse may assume sole powers of
administration. These powers do not include the powers of disposition or encumbrance which
must have the authority of the court or the written consent of the other spouse. In the absence of
such authority or consent, the disposition or encumbrance shall be void. . . .

Petitioner argues that although Article 124 of the Family Code requires the consent of the other
spouse to the mortgage of conjugal properties, the framers of the law could not have intended to
curtail the right of a spouse from exercising full ownership over the portion of the conjugal
property pertaining to him under the concept of co-ownership.[12] Thus, petitioner would have
this Court uphold the validity of the mortgage to the extent of the late Marcelino Dailo, Jr.'s share
in the conjugal partnership.

In Guiang v. Court of Appeals,[13] it was held that the sale of a conjugal property requires the
consent of both the husband and wife.[14] In applying Article 124 of the Family Code, this Court
declared that the absence of the consent of one renders the entire sale null and void, including the
portion of the conjugal property pertaining to the husband who contracted the sale. The same
principle in Guiang squarely applies to the instant case. As shall be discussed next, there is no
legal basis to construe Article 493 of the Civil Code as an exception to Article 124 of the Family
Code.

Respondent and the late Marcelino Dailo, Jr. were married on August 8, 1967. In the absence of a
marriage settlement, the system of relative community or conjugal partnership of gains governed
the property relations between respondent and her late husband.[15] With the effectivity of the
Family Code on August 3, 1988, Chapter 4 on Conjugal Partnership of Gains in the Family
Code was made applicable to conjugal partnership of gains already established before its
effectivity unless vested rights have already been acquired under the Civil Code or other laws.
[16]

The rules on co-ownership do not even apply to the property relations of respondent and the late
Marcelino Dailo, Jr. even in a suppletory manner. The regime of conjugal partnership of gains is
a special type of partnership, where the husband and wife place in a common fund the proceeds,
products, fruits and income from their separate properties and those acquired by either or both
spouses through their efforts or by chance.[17] Unlike the absolute community of property
wherein the rules on co-ownership apply in a suppletory manner,[18] the conjugal partnership
shall be governed by the rules on contract of partnership in all that is not in conflict with what is
expressly determined in the chapter (on conjugal partnership of gains) or by the spouses in their
marriage settlements.[19] Thus, the property relations of respondent and her late husband shall
be governed, foremost, by Chapter 4 on Conjugal Partnership of Gains of the Family Code and,
suppletorily, by the rules on partnership under the Civil Code. In case of conflict, the former
prevails because the Civil Code provisions on partnership apply only when the Family Code is
silent on the matter.

The basic and established fact is that during his lifetime, without the knowledge and consent of
his wife, Marcelino Dailo, Jr. constituted a real estate mortgage on the subject property, which
formed part of their conjugal partnership. By express provision of Article 124 of the Family
Code, in the absence of (court) authority or written consent of the other spouse, any disposition
or encumbrance of the conjugal property shall be void.
The aforequoted provision does not qualify with respect to the share of the spouse who makes
the disposition or encumbrance in the same manner that the rule on co-ownership under Article
493 of the Civil Code does. Where the law does not distinguish, courts should not distinguish.
[20] Thus, both the trial court and the appellate court are correct in declaring the nullity of the
real estate mortgage on the subject property for lack of respondent's consent.

Second, petitioner imposes the liability for the payment of the principal obligation obtained by
the late Marcelino Dailo, Jr. on the conjugal partnership to the extent that it redounded to the
benefit of the family.[21]

Under Article 121 of the Family Code, '[T]he conjugal partnership shall be liable for: . . . (3)
Debts and obligations contracted by either spouse without the consent of the other to the extent
that the family may have been benefited; . . . . For the subject property to be held liable, the
obligation contracted by the late Marcelino Dailo, Jr. must have redounded to the benefit of the
conjugal partnership. There must be the requisite showing then of some advantage which clearly
accrued to the welfare of the spouses. Certainly, to make a conjugal partnership respond for a
liability that should appertain to the husband alone is to defeat and frustrate the avowed objective
of the new Civil Code to show the utmost concern for the solidarity and well-being of the family
as a unit.[22]

The burden of proof that the debt was contracted for the benefit of the conjugal partnership of
gains lies with the creditor-party litigant claiming as such.[23] Ei incumbit probatio qui dicit,
non qui negat (he who asserts, not he who denies, must prove).[24] Petitioner's sweeping
conclusion that the loan obtained by the late Marcelino Dailo, Jr. to finance the construction of
housing units without a doubt redounded to the benefit of his family, without adducing adequate
proof, does not persuade this Court. Other than petitioner's bare allegation, there is nothing from
the records of the case to compel a finding that, indeed, the loan obtained by the late Marcelino
Dailo, Jr. redounded to the benefit of the family. Consequently, the conjugal partnership cannot
be held liable for the payment of the principal obligation.

In addition, a perusal of the records of the case reveals that during the trial, petitioner vigorously
asserted that the subject property was the exclusive property of the late Marcelino Dailo, Jr.
Nowhere in the answer filed with the trial court was it alleged that the proceeds of the loan
redounded to the benefit of the family. Even on appeal, petitioner never claimed that the family
benefited from the proceeds of the loan. When a party adopts a certain theory in the court below,
he will not be permitted to change his theory on appeal, for to permit him to do so would not
only be unfair to the other party but it would also be offensive to the basic rules of fair play,
justice and due process.[25] A party may change his legal theory on appeal only when the factual
bases thereof would not require presentation of any further evidence by the adverse party in
order to enable it to properly meet the issue raised in the new theory.[26]

WHEREFORE, the petition is DENIED. Costs against petitioner.

SECOND DIVISION

G.R. No. 145222 April 24, 2009

SPOUSES ROBERTO BUADO and VENUS BUADO, Petitioners,
vs.
THE HONORABLE COURT OF APPEALS, Former Division, and ROMULO NICOL,
Respondents.

DECISION

TINGA, J.:

Before this Court is a petition for certiorari assailing the Decision1 of the Court of Appeals in
CA-G.R. CV No. 47029 and its Resolution denying the motion for reconsideration thereof.

The case stemmed from the following factual backdrop:

On 30 April 1984, Spouses Roberto and Venus Buado (petitioners) filed a complaint for damages
against Erlinda Nicol (Erlinda) with Branch 19 of the Regional Trial Court (RTC) of Bacoor,
Cavite, docketed as Civil Case No. 84-33. Said action originated from Erlinda Nicols civil
liability arising from the criminal offense of slander filed against her by petitioners.

On 6 April 1987, the trial court rendered a decision ordering Erlinda to pay damages. The
dispositive portion reads:

Wherefore, judgment is hereby rendered in favor of the plaintiff[s] and against defendant
ordering the latter to pay the former the amount of thirty thousand (P30,000.00) pesos as moral
damages, five thousand (P5,000.00) pesos as attorneys fees and litigation expenses, another five
thousand (P5,000.00) pesos as exemplary damages and the cost of suit.2

Said decision was affirmed, successively, by the Court of Appeals and this Court. It became final
and executory on 5 March 1992.

On 14 October 1992, the trial court issued a writ of execution, a portion of which provides:

Now, therefore, you are commanded that of the goods and chattels of the defendant Erlinda
Nicol, or from her estates or legal heirs, you cause the sum in the amount of forty thousand pesos
(P40,000.00), Philippine Currency, representing the moral damages, attorneys fees and litigation
expenses and exemplary damages and the cost of suit of the plaintiff aside from your lawful fees
on this execution and do likewise return this writ into court within sixty (60) days from date,
with your proceedings endorsed hereon.

But if sufficient personal property cannot be found whereof to satisfy this execution and lawful
fees thereon, then you are commanded that of the lands and buildings of said defendant you
make the said sum of money in the manner required by the Rules of Court, and make return of
your proceedings with this writ within sixty (60) days from date.3
Finding Erlinda Nicols personal properties insufficient to satisfy the judgment, the Deputy
Sheriff issued a notice of levy on real property on execution addressed to the Register of Deeds
of Cavite. The notice of levy was annotated on the Transfer Certificate of Title No. T-125322.

On 20 November 1992, a notice of sheriffs sale was issued.

Two (2) days before the public auction sale on 28 January 1993, an affidavit of third-party claim
from one Arnulfo F. Fulo was received by the deputy sheriff prompting petitioners to put up a
sheriffs indemnity bond. The auction sale proceeded with petitioners as the highest bidder.

On 4 February 1993, a certificate of sale was issued in favor of petitioners.

Almost a year later on 2 February 1994, Romulo Nicol (respondent), the husband of Erlinda
Nicol, filed a complaint for annulment of certificate of sale and damages with preliminary
injunction against petitioners and the deputy sheriff. Respondent, as plaintiff therein, alleged that
the defendants, now petitioners, connived and directly levied upon and execute his real property
without exhausting the personal properties of Erlinda Nicol. Respondent averred that there was
no proper publication and posting of the notice of sale. Furthermore, respondent claimed that his
property which was valued at P500,000.00 was only sold at a "very low price" of P51,685.00,
whereas the judgment obligation of Erlinda Nicol was only P40,000.00. The case was assigned
to Branch 21 of the RTC of Imus, Cavite.

In response, petitioners filed a motion to dismiss on the grounds of lack of jurisdiction and that
they had acted on the basis of a valid writ of execution. Citing De Leon v. Salvador,4 petitioners
claimed that respondent should have filed the case with Branch 19 where the judgment
originated and which issued the order of execution, writ of execution, notice of levy and notice
of sheriffs sale.

In an Order5 dated 18 April 1994, the RTC dismissed respondents complaint and ruled that
Branch 19 has jurisdiction over the case, thus:

As correctly pointed out by the defendants, any flaw in the implementation of the writ of
execution by the implementing sheriff must be brought before the court issuing the writ of
execution. Besides, there are two (2) remedies open to the plaintiff, if he feels that the property
being levied on belongs to him and not to the judgment debtor. The first remedy is to file a third-
party claim. If he fails to do this, a right is reserved to him to vindicate his claim over the
property by any proper action. But certainly, this is not the proper action reserved to the plaintiff
to vindicate his claim over the property in question to be ventilated before this court. As earlier
stated, this case should have been addressed to Branch 19, RTC Bacoor as it was that court
which issued the writ of execution.6

Respondent moved for reconsideration but it was denied on 26 July 1994.

On appeal, the Court of Appeals reversed the trial court and held that Branch 21 has jurisdiction
to act on the complaint filed by appellant. The dispositive portion reads:
WHEREFORE, the Orders appealed from are hereby REVERSED and SET ASIDE. This case is
REMANDED to the Regional Trial Court of Imus, Cavite, Branch 21 for further proceedings.

SO ORDERED.7

Petitioners motion for reconsideration was denied on 23 August 2000. Hence, the instant petition
attributing grave abuse of discretion on the part of the Court of Appeals.

A petition for certiorari is an extraordinary remedy that is adopted to correct errors of jurisdiction
committed by the lower court or quasi-judicial agency, or when there is grave abuse of discretion
on the part of such court or agency amounting to lack or excess of jurisdiction. Where the error is
not one of jurisdiction, but of law or fact which is a mistake of judgment, the proper remedy
should be appeal. In addition, an independent action for certiorari may be availed of only when
there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law.8

Nowhere in the petition was it shown that the jurisdiction of the Court of Appeals was
questioned. The issue devolves on whether the husband of the judgment debtor may file an
independent action to protect the conjugal property subject to execution. The alleged error
therefore is an error of judgment which is a proper subject of an appeal.

Nevertheless, even if we were to treat this petition as one for review, the case should still be
dismissed on substantive grounds.

Petitioners maintain that Branch 19 retained jurisdiction over its judgment to the exclusion of all
other co-ordinate courts for its execution and all incidents thereof, in line with De Leon v.
Salvador. Petitioners insist that respondent, who is the husband of the judgment debtor, is not the
"third party" contemplated in Section 17 (now Section 16), Rule 39 of the Rules of Court, hence
a separate action need not be filed. Furthermore, petitioners assert that the obligation of the wife
redounded to the benefit of the conjugal partnership and cited authorities to the effect that the
husband is liable for the tort committed by his wife.

Respondent on the other hand merely avers that the decision of the Court of Appeals is supported
by substantial evidence and in accord with law and jurisprudence.9

Verily, the question of jurisdiction could be resolved through a proper interpretation of Section
16, Rule 39 of the Rules of Court, which reads:

Sec. 16. Proceedings where property claimed by third person.

If the property levied on is claimed by any person other than the judgment obligor or his agent,
and such person makes an affidavit of his title thereto or right to the possession thereof, stating
the grounds of such right or title, and serves the same upon the officer making the levy and a
copy thereof upon the judgment obligee, the officer shall not be bound to keep the property,
unless such judgment obligee, on demand of the officer, files a bond approved by the court to
indemnify the third-party claimant in a sum not less than the value of the property levied on. In
case of disagreement as to such value, the same shall be determined by the court issuing the writ
of execution. No claim for damages for the taking or keeping of the property may be enforced
against the bond unless the action therefor is filed within one hundred twenty (120) days from
the date of the filing of the bond.

The officer shall not be liable for damages for the taking or keeping of the property, to any third-
party claimant if such bond is filed. Nothing herein contained shall prevent such claimant or any
third person from vindicating his claim to the property in a separate action, or prevent the
judgment obligee from claiming damages in the same or a separate action against a third-party
claimant who filed a frivolous or plainly spurious claim.

When the writ of execution is issued in favor of the Republic of the Philippines, or any officer
duly representing it, the filing of such bond shall not be required, and in case the sheriff or
levying officer is sued for damages as a result of the levy, he shall be represented by the Solicitor
General and if held liable therefor, the actual damages adjudged by the court shall be paid by the
National Treasurer out of such funds as may be appropriated for the purpose. (Emphasis
Supplied)

Apart from the remedy of terceria available to a third-party claimant or to a stranger to the
foreclosure suit against the sheriff or officer effecting the writ by serving on him an affidavit of
his title and a copy thereof upon the judgment creditor, a third-party claimant may also resort to
an independent separate action, the object of which is the recovery of ownership or possession of
the property seized by the sheriff, as well as damages arising from wrongful seizure and
detention of the property. If a separate action is the recourse, the third-party claimant must
institute in a forum of competent jurisdiction an action, distinct and separate from the action in
which the judgment is being enforced, even before or without need of filing a claim in the court
that issued the writ.101awphi1.zw+

A third-party claim must be filed a person other than the judgment debtor or his agent. In other
words, only a stranger to the case may file a third-party claim.

This leads us to the question: Is the husband, who was not a party to the suit but whose conjugal
property is being executed on account of the other spouse being the judgment obligor, considered
a "stranger?"

In determining whether the husband is a stranger to the suit, the character of the property must be
taken into account. In Mariano v. Court of Appeals,11 which was later adopted in Spouses Ching
v. Court of Appeals,12 this Court held that the husband of the judgment debtor cannot be deemed
a "stranger" to the case prosecuted and adjudged against his wife for an obligation that has
redounded to the benefit of the conjugal partnership.13 On the other hand, in Naguit v. Court of
Appeals14 and Sy v. Discaya,15 the Court stated that a spouse is deemed a stranger to the action
wherein the writ of execution was issued and is therefore justified in bringing an independent
action to vindicate her right of ownership over his exclusive or paraphernal property.lawphil.net

Pursuant to Mariano however, it must further be settled whether the obligation of the judgment
debtor redounded to the benefit of the conjugal partnership or not.
Petitioners argue that the obligation of the wife arising from her criminal liability is chargeable to
the conjugal partnership. We do not agree.

There is no dispute that contested property is conjugal in nature. Article 122 of the Family Code16
explicitly provides that payment of personal debts contracted by the husband or the wife before
or during the marriage shall not be charged to the conjugal partnership except insofar as they
redounded to the benefit of the family.

Unlike in the system of absolute community where liabilities incurred by either spouse by reason
of a crime or quasi-delict is chargeable to the absolute community of property, in the absence or
insufficiency of the exclusive property of the debtor-spouse, the same advantage is not accorded
in the system of conjugal partnership of gains. The conjugal partnership of gains has no duty to
make advance payments for the liability of the debtor-spouse.

Parenthetically, by no stretch of imagination can it be concluded that the civil obligation arising
from the crime of slander committed by Erlinda redounded to the benefit of the conjugal
partnership.

To reiterate, conjugal property cannot be held liable for the personal obligation contracted by one
spouse, unless some advantage or benefit is shown to have accrued to the conjugal partnership.17

In Guadalupe v. Tronco,18 this Court held that the car which was claimed by the third party
complainant to be conjugal property was being levied upon to enforce "a judgment for support"
filed by a third person, the third-party claim of the wife is proper since the obligation which is
personal to the husband is chargeable not on the conjugal property but on his separate property.

Hence, the filing of a separate action by respondent is proper and jurisdiction is thus vested on
Branch 21. Petitioners failed to show that the Court of Appeals committed grave abuse of
discretion in remanding the case to Branch 21 for further proceedings.

WHEREFORE, the petition is DISMISSED. The Decision of the Court of Appeals is

AFFIRMED. Costs against petitioners.

SECOND DIVISION

SECURITY BANK and TRUST G.R. No. 143382

COMPANY,

Petitioner, Present:
 PUNO, J., Chairperson,

SANDOVAL-GUTIERREZ,

- versus - CORONA,

AZCUNA and

GARCIA, JJ.

MAR TIERRA CORPORATION,

WILFRIDO C. MARTINEZ,

MIGUEL J. LACSON and

RICARDO A. LOPA,

Respondents. Promulgated:

November 29, 2006

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

DECISION

CORONA, J.:

May the conjugal partnership be held liable for an indemnity agreement entered into by

the husband to accommodate a third party?

 This issue confronts us in this petition for review on certiorari assailing the November 9,

1999 decision of the Court of Appeals (CA) in CA-G.R. CV No. 48107.

On May 7, 1980, respondent Mar Tierra Corporation, through its president, Wilfrido C.

Martinez, applied for a P12,000,000 credit accommodation with petitioner Security Bank and

Trust Company. Petitioner approved the application and entered into a credit line agreement with

respondent corporation. It was secured by an indemnity agreement executed by individual

respondents Wilfrido C. Martinez, Miguel J. Lacson and Ricardo A. Lopa who bound themselves

jointly and severally with respondent corporation for the payment of the loan.

On July 2, 1980, the credit line agreement was amended and increased to P14,000,000.

Individual respondents correspondingly executed a new indemnity agreement in favor of the

bank to secure the increased credit line.

On September 25, 1981, respondent corporation availed of its credit line and received the

sum of P9,952,000 which it undertook to pay on or before November 30, 1981. It was able to pay

P4,648,000 for the principal loan and P2,729,195.56 for the interest and other charges. However,

respondent corporation was not able to pay the balance as it suffered business reversals,

eventually ceasing operations in 1984.

 Unable to collect the balance of the loan, petitioner filed a complaint for a sum of money

with a prayer for preliminary attachment against respondent corporation and individual

respondents in the Regional Trial Court (RTC) of Makati, Branch 66. It was docketed as Civil

Case No. 3947.

Subsequently, however, petitioner had the case dismissed with respect to individual

respondents Lacson and Lopa, leaving Martinez as the remaining individual respondent.

On August 10, 1982, the RTC issued a writ of attachment on all real and personal

properties of respondent corporation and individual respondent Martinez. As a consequence, the

conjugal house and lot of the spouses Wilfrido and Josefina Martinez in Barrio Calaanan,

Caloocan City covered by Transfer Certificate of Title (TCT) No. 49158 was levied on.

The RTC rendered its decision on June 20, 1994. It held respondent corporation and

individual respondent Martinez jointly and severally liable to petitioner for P5,304,000 plus 12%

interest per annum and 5% penalty commencing on June 21, 1982 until fully paid, plus P10,000

as attorneys fees. It, however, found that the obligation contracted by individual respondent

Martinez did not redound to the benefit of his family, hence, it ordered the lifting of the

attachment on the conjugal house and lot of the spouses Martinez.

 Dissatisfied with the RTC decision, petitioner appealed to the CA but the appellate court

affirmed the trial courts decision in toto. Petitioner sought reconsideration but it was denied.

Hence, this petition.

Petitioner makes two basic assertions: (1) the RTC and CA erred in finding that respondent

corporation availed of P9,952,000 only from its credit line and not the entire P14,000,000 and (2)

the RTC and CA were wrong in ruling that the conjugal partnership of the Martinez spouses

could not be held liable for the obligation incurred by individual respondent Martinez.

We uphold the CA.

Factual findings of the CA, affirming those of the trial court, will not be disturbed on

appeal but must be accorded great weight. These findings are conclusive not only on the parties

but on this Court as well.

The CA affirmed the finding of the RTC that the amount availed of by respondent

corporation from its credit line with petitioner was only P9,952,000. Both courts correctly

pointed out that petitioner itself admitted this amount when it alleged in paragraph seven of its

complaint that respondent corporation borrowed and received the principal sum of P9,952,000.

Petitioner was therefore bound by the factual finding of the appellate and trial courts, as well as

by its own judicial admission, on this particular point.

 At any rate, the issue of the amount actually availed of by respondent corporation is

factual. It is not within the ambit of this Courts discretionary power of judicial review under

Rule 45 of the Rules of Court which is concerned solely with questions of law.

We now move on to the principal issue in this case.

Under Article 161(1) of the Civil Code, the conjugal partnership is liable for all debts

and obligations contracted by the husband for the benefit of the conjugal partnership. But when

are debts and obligations contracted by the husband alone considered for the benefit of and

therefore chargeable against the conjugal partnership? Is a surety agreement or an

accommodation contract entered into by the husband in favor of his employer within the

contemplation of the said provision?

We ruled as early as 1969 in Luzon Surety Co., Inc. v. de Garcia that, in acting as a

guarantor or surety for another, the husband does not act for the benefit of the conjugal

partnership as the benefit is clearly intended for a third party.

In Ayala Investment and Development Corporation v. Court of Appeals, we ruled that, if

the husband himself is the principal obligor in the contract, i.e., the direct recipient of the money

and services to be used in or for his own business or profession, the transaction falls within the
term obligations for the benefit of the conjugal partnership. In other words, where the husband

contracts an obligation on behalf of the family business, there is a legal presumption that such

obligation redounds to the benefit of the conjugal partnership.

On the other hand, if the money or services are given to another person or entity and the

husband acted only as a surety or guarantor, the transaction cannot by itself be deemed an

obligation for the benefit of the conjugal partnership. It is for the benefit of the principal debtor

and not for the surety or his family. No presumption is raised that, when a husband enters into a

contract of surety or accommodation agreement, it is for the benefit of the conjugal partnership.

Proof must be presented to establish the benefit redounding to the conjugal partnership. In the

absence of any showing of benefit received by it, the conjugal partnership cannot be held liable

on an indemnity agreement executed by the husband to accommodate a third party.

In this case, the principal contract, the credit line agreement between petitioner and

respondent corporation, was solely for the benefit of the latter. The accessory contract (the

indemnity agreement) under which individual respondent Martinez assumed the obligation of a

surety for respondent corporation was similarly for the latters benefit. Petitioner had the burden

of proving that the conjugal partnership of the spouses Martinez benefited from the transaction.

It failed to discharge that burden.

To hold the conjugal partnership liable for an obligation pertaining to the husband alone

defeats the objective of the Civil Code to protect the solidarity and well being of the family as a
unit. The underlying concern of the law is the conservation of the conjugal partnership. Hence, it

limits the liability of the conjugal partnership only to debts and obligations contracted by the

husband for the benefit of the conjugal partnership.

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

FIRST DIVISION

[G.R. No. 109557. November 29, 2000]

JOSE UY and his Spouse GLENDA J. UY and GILDA L. JARDELEZA, petitioners, vs. COURT
OF APPEALS and TEODORO L. JARDELEZA, respondents.

DECISION

PARDO, J.:

The case is an appeal via certiorari from the decision of the Court of Appeals and its resolution
denying reconsideration reversing that of the Regional Trial Court, Iloilo, Branch 32 and
declaring void the special proceedings instituted therein by petitioners to authorize petitioner
Gilda L. Jardeleza, in view of the comatose condition of her husband, Ernesto Jardeleza, Sr., with
the approval of the court, to dispose of their conjugal property in favor of co-petitioners, their
daughter and son in law, for the ostensible purpose of financial need in the personal, business
and medical expenses of her incapacitated husband.

The facts, as found by the Court of Appeals, are as follows:

This case is a dispute between Teodoro L. Jardeleza (herein respondent) on the one hand,
against his mother Gilda L. Jardeleza, and sister and brother-in-law, the spouses Jose Uy and
Glenda Jardeleza (herein petitioners) on the other hand. The controversy came about as a result
of Dr. Ernesto Jardeleza, Sr.s suffering of a stroke on March 25, 1991, which left him comatose
and bereft of any motor or mental faculties. Said Ernesto Jardeleza, Sr. is the father of herein
respondent Teodoro Jardeleza and husband of herein private respondent Gilda Jardeleza.
Upon learning that one piece of real property belonging to the senior Jardeleza spouses was
about to be sold, petitioner Teodoro Jardeleza, on June 6, 1991, filed a petition (Annex A)
before the R.T.C. of Iloilo City, Branch 25, where it was docketed as Special Proceeding No.
4689, in the matter of the guardianship of Dr. Ernesto Jardeleza, Sr. The petitioner averred
therein that the present physical and mental incapacity of Dr. Ernesto Jardeleza, Sr. prevent him
from competently administering his properties, and in order to prevent the loss and dissipation of
the Jardelezas real and personal assets, there was a need for a court-appointed guardian to
administer said properties. It was prayed therein that Letters of Guardianship be issued in favor
of herein private respondent Gilda Ledesma Jardeleza, wife of Dr. Ernesto Jardeleza, Sr. It was
further prayed that in the meantime, no property of Dr. Ernesto Jardeleza, Sr. be negotiated,
mortgaged or otherwise alienated to third persons, particularly Lot No. 4291 and all the
improvements thereon, located along Bonifacio Drive, Iloilo City, and covered by T.C.T. No.
47337.

A few days later, or on June 13, 1991, respondent Gilda L. Jardeleza herself filed a petition
docketed as Special Proceeding NO. 4691, before Branch 32 of the R.T.C. of Iloilo City,
regarding the declaration of incapacity of Ernesto Jardeleza, Sr., assumption of sole powers of
administration of conjugal properties, and authorization to sell the same (Annex B). Therein,
the petitioner Gilda L. Jardeleza averred the physical and mental incapacity of her husband, who
was then confined for intensive medical care and treatment at the Iloilo Doctors Hospital. She
signified to the court her desire to assume sole powers of administration of their conjugal
properties. She also alleged that her husbands medical treatment and hospitalization expenses
were piling up, accumulating to several hundred thousands of pesos already. For this, she
urgently needed to sell one piece of real property, specifically Lot No. 4291 and its
improvements. Thus, she prayed for authorization from the court to sell said property.

The following day, June 14, 1991, Branch 32 of the R.T.C. of Iloilo City issued an Order
(Annex C) finding the petition in Spec. Proc. No. 4691 to be sufficient in form and substance,
and setting the hearing thereof for June 20, 1991. The scheduled hearing of the petition
proceeded, attended by therein petitioner Gilda Jardeleza, her counsel, her two children, namely
Ernesto Jardeleza, Jr., and Glenda Jardeleza Uy, and Dr. Rolando Padilla, one of Ernesto
Jardeleza, Sr.s attending physicians.

On that same day, June 20, 1991, Branch 32 of the RTC of Iloilo City rendered its Decision
(Annex D), finding that it was convinced that Ernesto Jardeleza, Sr. was truly incapacitated to
participate in the administration of the conjugal properties, and that the sale of Lot No. 4291 and
the improvements thereon was necessary to defray the mounting expenses for treatment and
Hospitalization. The said court also made the pronouncement that the petition filed by Gilda L.
Jardeleza was pursuant to Article 124 of the Family Code, and that the proceedings thereon are
governed by the rules on summary proceedings sanctioned under Article 253 of the same Code x
x x.

The said court then disposed as follows:

WHEREFORE, there being factual and legal bases to the petition dated June 13, 1991, the
Court hereby renders judgment as follows:
1) declaring Ernesto Jardeleza, Sr., petitioners husband, to be incapacitated and unable to
participate in the administration of conjugal properties;

2) authorizing petitioner Gilda L. Jardeleza to assume sole powers of administration of their

conjugal properties; and

3) authorizing aforesaid petitioner to sell Lot No. 4291 of the Cadastral Survey of Iloilo,
situated in Iloilo City and covered by TCT No. 47337 issued in the names of Ernesto Jardeleza,
Sr. and Gilda L. Jardeleza and the buildings standing thereof.

SO ORDERED.

On June 24, 1991, herein petitioner Teodoro Jardeleza filed his Opposition to the proceedings
before Branch 32 in Spec. Proc. Case No. 4691, said petitioner being unaware and not knowing
that a decision has already been rendered on the case by public respondent.

On July 3, 1991, herein petitioner Teodoro Jardeleza filed a motion for reconsideration of the
judgment in Spec. Proc. No. 4691 and a motion for consolidation of the two cases (Annex F).
He propounded the argument that the petition for declaration of incapacity, assumption of sole
powers of administration, and authority to sell the conjugal properties was essentially a petition
for guardianship of the person and properties of Ernesto Jardeleza, Sr. As such, it cannot be
prosecuted in accordance with the provisions on summary proceedings set out in Article 253 of
the Family Code. It should follow the rules governing special proceedings in the Revised Rules
of Court which require procedural due process, particularly the need for notice and a hearing on
the merits. On the other hand, even if Gilda Jardelezas petition can be prosecuted by summary
proceedings, there was still a failure to comply with the basic requirements thereof, making the
decision in Spec. Proc. No. 4691 a defective one. He further alleged that under the New Civil
Code, Ernesto Jardeleza, Sr. had acquired vested rights as a conjugal partner, and that these rights
cannot be impaired or prejudiced without his consent. Neither can he be deprived of his share in
the conjugal properties through mere summary proceedings. He then restated his position that
Spec. Proc. No. 4691 should be consolidated with Spec. Proc. No. 4689 which was filed earlier
and pending before Branch 25.

Teodoro Jardeleza also questioned the propriety of the sale of Lot No. 4291 and the
improvements thereon supposedly to pay the accumulated financial obligations arising from
Ernesto Jardeleza, Sr.s hospitalization. He alleged that the market value of the property would
be around Twelve to Fifteen Million Pesos, but that he had been informed that it would be sold
for much less. He also pointed out that the building thereon which houses the Jardeleza Clinic is
a monument to Ernesto Jardeleza Sr.s industry, labor and service to his fellowmen. Hence, the
said property has a lot of sentimental value to his family. Besides, argued Teodoro Jardeleza,
then conjugal partnership had other liquid assets to pay off all financial obligations. He
mentioned that apart from sufficient cash, Jardeleza, Sr. owned stocks of Iloilo Doctors Hospital
which can be off-set against the cost of medical and hospital bills. Furthermore, Ernesto
Jardeleza, Sr. enjoys certain privileges at the said hospital which allows him to pay on
installment basis. Moreover, two of Ernesto Jardeleza Sr.s attending physicians are his own
sons who do not charge anything for their professional services.
On July 4, 1991, Teodoro Jardeleza filed in Spec. Proc. No. 4691 a supplement to his motion for
reconsideration (Annex G). He reiterated his contention that summary proceedings was
irregularly applied. He also noted that the provisions on summary proceedings found in Chapter
2 of the Family Code comes under the heading on Separation in Fact Between Husband and
Wife which contemplates of a situation where both spouses are of disposing mind. Thus, he
argued that were one spouse is comatose without motor and mental faculties, the said
provisions cannot be made to apply.

While the motion for reconsideration was pending, Gilda Jardeleza disposed by absolute sale
Lot No. 4291 and all its improvements to her daughter, Ma. Glenda Jardeleza Uy, for Eight
Million Pesos (P8,000,000.00), as evidenced by a Deed Absolute Sale dated July 8, 1991
executed between them (p. 111, Rollo). Under date of July 23, 1991, Gilda Jardeleza filed an
urgent ex-parte motion for approval of the deed of absolute sale.

On August 12, 1991 Teodoro Jardeleza filed his Opposition to the motion for approval of the
deed of sale on the grounds that: (1) the motion was prematurely filed and should be held in
abeyance until the final resolution of the petition; (2) the motion does not allege nor prove the
justifications for the sale; and (3) the motion does not allege that had Ernesto Jardeleza, Sr. been
competent, he would have given his consent to the sale.

Judge Amelita K. del Rosario-Benedicto of Branch 32 of the respondent Court, who had penned
the decision in Spec. Proc. No. 4691 had in the meantime formally inhibited herself from further
acting in this case (Annex I). The case was then reraffled to Branch 28 of the said court.

On December 19, 1991, the said court issued an Order (Annex M) denying herein petitioners
motion for reconsideration and approving respondent Jardelezas motion for approval of the deed
of absolute sale. The said court ruled that:

After a careful and thorough perusal of the decision, dated June 20, 1991, the Motion for
Reconsideration, as well as its supplements filed by oppositor, Teodoro L. Jardeleza, through
counsel, and the opposition to the Motion for Reconsideration, including its supplements, filed
by petitioner, through counsel, this Court is of the opinion and so holds, that her Honor, Amelita
K. del Rosario-Benedicto, Presiding Judge of Branch 32, of this Court, has properly observed the
procedure embodied under Article 253, in relation to Article 124, of the Family Code, in
rendering her decision dated June 20, 1991.

Also, as correctly stated by petitioner, through counsel, that oppositor Teodor L. Jardeleza
does not have the personality to oppose the instant petition considering that the property or
properties, subject of the petition, belongs to the conjugal partnership of the spouses Ernesto and
Gilda Jardeleza, who are both still alive.

In view thereof, the Motion for Reconsideration of oppositor Teodoro L. Jardeleza, is hereby
denied for lack of merit.

Considering the validity of the decision dated June 20, 1991, which among others, authorized
Gilda L. Jardeleza to sell Lot No. 4291 of the Cadastral Survey of Iloilo, covered by Transfer
Certificate of Title No. 47337 issued in the names of Ernesto Jardeleza, Sr., and Gilda L.
Jardeleza and the building standing thereon, the Urgent Ex-Parte Motion for Approval of Deed of
Absolute Sale dated July 23, 1991, filed by petitioner, through counsel, is hereby granted and the
deed of absolute sale, executed and notarized on July 8, 1991, by and between Gilda L.
Jardeleza, as vendor, and Ma. Glenda Jardeleza, as vendee, is hereby approved, and the Register
of Deeds of Iloilo City, is directed to register the sale and issue the corresponding transfer
certificate of title to the vendee.

SO ORDERED.

On December 9, 1992, the Court of Appeals promulgated its decision reversing the appealed
decision and ordering the trial court to dismiss the special proceedings to approve the deed of
sale, which was also declared void.

On December 29, 1992, petitioners filed a motion for reconsideration, however, on March 29,
1993, the Court of Appeals denied the motion, finding no cogent and compelling reason to
disturb the decision.

Hence, this appeal.

The issue raised is whether petitioner Gilda L. Jardeleza as the wife of Ernesto Jardeleza, Sr. who
suffered a stroke, a cerebrovascular accident, rendering him comatose, without motor and mental
faculties, and could not manage their conjugal partnership property may assume sole powers of
administration of the conjugal property under Article 124 of the Family Code and dispose of a
parcel of land with its improvements, worth more than twelve million pesos, with the approval
of the court in a summary proceedings, to her co-petitioners, her own daughter and son-in-law,
for the amount of eight million pesos.

The Court of Appeals ruled that in the condition of Dr. Ernesto Jardeleza, Sr., the procedural
rules on summary proceedings in relation to Article 124 of the Family Code are not applicable.
Because Dr. Jardeleza, Sr. was unable to take care of himself and manage the conjugal property
due to illness that had rendered him comatose, the proper remedy was the appointment of a
judicial guardian of the person or estate or both of such incompetent, under Rule 93, Section 1,
1964 Revised Rules of Court. Indeed, petitioner earlier had filed such a petition for judicial
guardianship.

Article 124 of the Family Code provides as follows:

ART. 124. The administration and enjoyment of the conjugal partnership property shall belong
to both spouses jointly. In case of disagreement, the husbands decision shall prevail, subject to
recourse to the court by the wife for a proper remedy which must be availed of within five years
from the date of the contract implementing such decision.

In the event that one spouse is incapacitated or otherwise unable to participate in the
administration of the conjugal properties, the other spouse may assume sole powers of
administration. These powers do not include the powers of disposition or encumbrance which
must have the authority of the court or the written consent of the other spouse. In the absence of
such authority or consent, the disposition or encumbrance shall be void. However, the
transaction shall be construed as a continuing offer on the part of the consenting spouse and the
third person, and may be perfected as a binding contract upon the acceptance by the other spouse
or authorization by the court before the offer is withdrawn by either or both offerors. (165a).

In regular manner, the rules on summary judicial proceedings under the Family Code govern the
proceedings under Article 124 of the Family Code. The situation contemplated is one where the
spouse is absent, or separated in fact or has abandoned the other or consent is withheld or cannot
be obtained. Such rules do not apply to cases where the non-consenting spouse is incapacitated
or incompetent to give consent. In this case, the trial court found that the subject spouse "is an
incompetent" who was in comatose or semi-comatose condition, a victim of stroke,
cerebrovascular accident, without motor and mental faculties, and with a diagnosis of brain stem
infarct. In such case, the proper remedy is a judicial guardianship proceedings under Rule 93 of
the 1964 Revised Rules of Court.

Even assuming that the rules of summary judicial proceedings under the Family Code may apply
to the wife's administration of the conjugal property, the law provides that the wife who assumes
sole powers of administration has the same powers and duties as a guardian under the Rules of
Court.

Consequently, a spouse who desires to sell real property as such administrator of the conjugal
property must observe the procedure for the sale of the wards estate required of judicial
guardians under Rule 95, 1964 Revised Rules of Court, not the summary judicial proceedings
under the Family Code.

In the case at bar, the trial court did not comply with the procedure under the Revised Rules of
Court. Indeed, the trial court did not even observe the requirements of the summary judicial
proceedings under the Family Code. Thus, the trial court did not serve notice of the petition to
the incapacitated spouse; it did not require him to show cause why the petition should not be
granted.

Hence, we agree with the Court of Appeals that absent an opportunity to be heard, the decision
rendered by the trial court is void for lack of due process. The doctrine consistently adhered to by
this Court is that a denial of due process suffices to cast on the official act taken by whatever
branch of the government the impress of nullity. A decision rendered without due process is void
ab initio and may be attacked directly or collaterally. A decision is void for lack of due process
if, as a result, a party is deprived of the opportunity of being heard. A void decision may be
assailed or impugned at any time either directly or collaterally, by means of a separate action, or
by resisting such decision in any action or proceeding where it is invoked.

WHEREFORE, the Court AFFIRMS the decision of the Court of Appeals in CA-G. R. SP No.
26936, in toto.

Costs against petitioners.

EN BANC

G.R. No. L-28589 January 8, 1973

RAFAEL ZULUETA, ET AL., plaintiffs-appellees,

vs.
PAN AMERICAN WORLD AIRWAYS, INC., defendant-appellant.

Alfredo L. Benipayo for plaintiffs-appellee Rafael Zulueta and Carolina Zulueta.

Justo L. Albert for plaintiff-appellee Telly Albert Zulueta.

V.E. del Rosario and Associates and Salcedo, Del Rosario, Bito, Misa and Lozada for defendant-
appellant.

RESOLUTION

CONCEPCION, C.J.:

Both parties in this case have moved for the reconsideration of the decision of this Court
promulgated on February 29, 1972. Plaintiffs maintain that the decision appealed from should be
affirmed in toto. The defendant, in turn, prays that the decision of this Court be "set aside ... with
or without a new trial, ... and that the complaint be dismissed, with costs; or, in the alternative,
that the amount of the award embodied therein be considerably reduced." .

Subsequently to the filing of its motion for reconsideration, the defendant filed a "petition to
annul proceedings and/or to order the dismissal of plaintiffs-appellees' complaint" upon the
ground that "appellees' complaint actually seeks the recovery of only P5,502.85 as actual
damages, because, for the purpose of determining the jurisdiction of the lower court, the
unspecified sums representing items of alleged damages, may not be considered, under the
settled doctrines of this Honorable Court," and "the jurisdiction of courts of first instance when
the complaint in the present case was filed on Sept. 30, 1965" was limited to cases "in which the
demand, exclusive of interest, or the value of the property in controversy amounts to more than
ten thousand pesos" and "the mere fact that the complaint also prays for unspecified moral
damages and attorney's fees, does not bring the action within the jurisdiction of the lower court."

We find no merit in this contention. To begin with, it is not true that "the unspecified sums
representing items or other alleged damages, may not be considered" for the purpose of
determining the jurisdiction of the court "under the settled doctrines of this Honorable Court."
In fact, not a single case has been cited in support of this allegation.
Secondly, it has been held that a clam for moral damages is one not susceptible of pecuniary
estimation. 1 In fact, Article 2217 of the Civil Code of the Philippines explicitly provides that
"(t)hough incapable of pecuniary computation, moral damages may be recovered if they are the
proximate result of the defendant's wrongful act or omission." Hence, "(n)o proof pecuniary loss
necessary" pursuant to Article 2216 of the same Code "in order that moral ... damages may
be adjudicated." And "(t)he assessment of such damages ... is left to the discretion of the court" -
said article adds - "according to the circumstances of each case." Appellees' complaint is,
therefore, within the original jurisdiction of courts of first instance, which includes "all civil
actions in which the subject of the litigation is not capable of pecuniary estimation." 2

Thirdly, in its answer to plaintiffs' original and amended complainants, defendant had set up a
counterclaim in the aggregate sum of P12,000, which is, also, within the original jurisdiction of
said courts, thereby curing the alleged defect if any, in plaintiffs' complaint. 3

We need not consider the jurisdictional controversy as to the amount the appellant
sues to recover because the counterclaim interposed establishes the jurisdiction of
the District Court. Merchants' Heat & Light Co. v. James B. Clow & Sons, 204
U.S. 286, 27 S. Ct. 285, 51 L. Ed. 488; O. J. Lewis Mercantile Co. v. Klepner, 176
F. 343 (C.C.A. 2), certiorari denied 216 U.S. 620, 30 S Ct. 575, 54 L. Ed. 641. ... .
4

... courts have said that "when the jurisdictional amount is in question, the
tendering of a counterclaim in an amount which in itself, or added to the amount
claimed in the petition, makes up a sum equal to the amount necessary to the
jurisdiction of this court, jurisdiction is established, whatever may be the state of
the plaintiff's complaint." American Sheet & Tin Plate Co. v. Winzeler (D.C.) 227
F. 321, 324. 5

Thus, in Ago v. Buslon, 6 We held:

... . Then, too, petitioner's counterclaim for P37,000.00 was, also, within the
exclusive original jurisdiction of the latter courts, and there are ample precedents
to the effect that "although the original claim involves less than the jurisdictional
amount, ... jurisdiction can be sustained if the counterclaim (of the compulsory
type)" such as the one set up by petitioner herein, based upon the damages
allegedly suffered by him in consequence of the filing of said complaint
"exceeds the jurisdictional amount." (Moore Federal Practice, 2nd ed. [1948], Vol.
3, p. 41; Ginsburg vs. Pacific Mutual Life Ins. Co. of California, 69 Fed. [2d] 97;
Home Life Ins. Co. vs. Sipp., 11 Fed. [2d]474; American Sheet & Tin Plate Co.
vs. Winzeler [D.C.], 227 Fed. 321, 324; Brix vs. People's Mutual Life Ins. Co., 41
P. 2d. 537, 2 Cal. 2d. 446; Emery vs. Pacific Employees Ins. Co., 67 P. 2d. 1046, 8
Cal. 2d. 663).

Needless to say, having not only failed to question the jurisdiction of the trial court either in
that court or in this Court, before the rendition of the latter's decision, and even subsequently
thereto, by filing the aforementioned motion for reconsideration and seeking the reliefs therein
prayed for but, also, urged both courts to exercise jurisdiction over the merits of the case,
defendant is now estopped from impugning said jurisdiction. 7

Before taking up the specific questions raised in defendant's motion for reconsideration, it should
be noted that the same is mainly predicated upon the premise that plaintiffs' version is inherently
incredible, and that this Court should accept the theory of the defense to the effect that petitioner
was off-loaded because of a bomb-scare allegedly arising from his delay in boarding the aircraft
and subsequent refusal to open his bags for inspection. We need not repeat here the reasons given
in Our decision for rejecting defendant's contention and not disturbing the findings of fact of His
Honor, the Trial Judge, who had the decided advantage denied to Us of observing the
behaviour of the witnesses in the course of the trial and found those of the plaintiffs worthy of
credence, not the evidence for the defense.

It may not be amiss however, to stress the fact that, in his written report, made in transit from
Wake to Manila or immediately after the occurrence and before the legal implications or
consequences thereof could have been the object of mature deliberation, so that it could, in a
way, be considered as part of the res gestae Capt. Zentner stated that Zulueta had been off-
loaded "due to drinking" and "belligerent attitude," thereby belying the story of the defense
about said alleged bomb-scare, and confirming the view that said agent of the defendant had
acted out of resentment because his ego had been hurt by Mr. Zulueta's adamant refusal to be
bullied by him. Indeed, had there been an iota of truth in said story of the defense, Capt. Zentner
would have caused every one of the passengers to be frisked or searched and the luggage of all of
them examined as it is done now before resuming the flight from Wake Island. His failure
to do so merely makes the artificious nature of defendant's version more manifest. Indeed, the
fact that Mrs. Zulueta and Miss Zulueta were on board the plane shows beyond doubt that Mr.
Zulueta could not possibly have intended to blow it up.

The defense tries to explain its failure to introduce any evidence to contradict the testimony of
Mr. Zulueta as to why he had gone to the beach and what he did there, alleging that, in the very
nature of things, nobody else could have witnessed it. Moreover, the defense insists, inter alia,
that the testimony of Mr. Zulueta is inherently incredible because he had no idea as to how many
toilets the plane had; it could not have taken him an hour to relieve himself in the beach; there
were eight (8) commodes at the terminal toilet for men ; if he felt the need of relieving himself,
he would have seen to it that the soldiers did not beat him to the terminal toilets; he did not tell
anybody about the reason for going to the beach, until after the plane had taken off from Wake.

We find this pretense devoid of merit. Although Mr. Zulueta had to look for a secluded place in
the beach to relieve himself, beyond the view of others, defendant's airport manager, whom Mr.
Zulueta informed about it, soon after the departure of the plane, could have forthwith checked the
veracity of Mr. Zulueta's statement by asking him to indicate the specific place where he had
been in the beach and then proceeding thereto for purposes of verification.

Then, again, the passenger of a plane seldom knows how many toilets it has. As a general rule,
his knowledge is limited to the toilets for the class first class or tourist class in which he is.
Then, too, it takes several minutes for the passengers of big aircrafts, like those flying from the
U.S. to the Philippines, to deplane. Besides, the speed with which a given passenger may do so
depends, largely, upon the location of his seat in relation to the exit door. He cannot go over the
heads of those nearer than he thereto. Again, Mr. Zulueta may have stayed in the toilet terminal
for some time, expecting one of the commodes therein to be vacated soon enough, before
deciding to go elsewhere to look for a place suitable to his purpose. But he had to walk, first,
from the plane to the terminal building and, then, after vainly waiting therein for a while, cover a
distance of about 400 yards therefrom to the beach, and seek there a place not visible by the
people in the plane and in the terminal, inasmuch as the terrain at Wake Island is flat. What is
more, he must have had to takeoff part, at least, of his clothing, because, without the facilities of
a toilet, he had to wash himself and, then, dry himself up before he could be properly attired and
walk back the 400 yards that separated him from the terminal building and/or the plane.
Considering, in addition to the foregoing, the fact that he was not feeling well, at that time, We
are not prepared to hold that it could not have taken him around an hour to perform the acts
narrated by him.

But, why asks the defendant did he not reveal the same before the plane took off? The
record shows that, even before Mr. Zulueta had reached the ramp leading to the plane, Capt.
Zentner was already demonstrating at him in an intemperate and arrogant tone and attitude
("What do you think you are?), thereby impelling Mr. Zulueta to answer back in the same vein.
As a consequence, there immediately ensued an altercation in the course of which each
apparently tried to show that he could not be cowed by the other. Then came the order of Capt.
Zentner to off-load all of the Zuluetas, including Mrs. Zulueta and the minor Miss Zulueta, as
well as their luggage, their overcoats and other effects handcarried by them; but, Mr. Zulueta
requested that the ladies be allowed to continue the trip. Meanwhile, it had taken time to locate
his four (4) pieces of luggage. As a matter of fact, only three (3) of them were found, and the
fourth eventually remained in the plane. In short, the issue between Capt. Zentner and Mr.
Zulueta had been limited to determining whether the latter would allow himself to be browbeaten
by the former. In the heat of the altercation, nobody had inquired about the cause of Mr. Zulueta's
delay in returning to the plane, apart from the fact that it was rather embarrassing for him to
explain, in the presence and within the hearing of the passengers and the crew, then assembled
around them, why he had gone to the beach and why it had taken him some time to answer there
a call of nature, instead of doing so in the terminal building.

Defendant's motion for reconsideration assails: (1) the amount of damages awarded as excessive;
(2) the propriety of accepting as credible plaintiffs' theory; (3) plaintiffs' right to recover either
moral or exemplary damages; (4) plaintiffs' right to recover attorney's fees; and (5) the non-
enforcement of the compromise agreement between the defendant and plaintiff's wife, Mrs.
Zulueta. Upon the other hand, plaintiffs' motion for reconsideration contests the decision of this
Court reducing the amount of damages awarded by the trial court to approximately one-half
thereof, upon the ground, not only that, contrary to the findings of this Court, in said decision,
plaintiff had not contributed to the aggravation of his altercation or incident with Capt. Zentner
by reacting to his provocation with extreme belligerency thereby allowing himself to be dragged
down to the level on which said agent of the defendant had placed himself, but, also, because the
purchasing power of our local currency is now much lower than when the trial court rendered its
appealed decision, over five (5) years ago, on July 5, 1967, which is an undeniable and
undisputed fact. Precisely, for this reason, defendant's characterization as exorbitant of the
aggregate award of over P700,000 by way of damages, apart from attorney's fees in the sum of
P75,000, is untenable. Indeed, said award is now barely equivalent to around 100,000 U. S.
dollars.

It further support of its contention, defendant cites the damages awarded in previous cases to
passengers of airlines, 8 as well as in several criminal cases, and some cases for libel and slander.
None of these cases is, however, in point. Said cases against airlines referred to passengers who
were merely constrained to take a tourist class accommodation, despite the fact that they had
first class tickets, and that although, in one of such cases, there was proof that the airline
involved had acted as it did to give preference to a "white" passenger, this motive was not
disclosed until the trial in court. In the case at bar, plaintiff Rafael Zulueta was "off-loaded" at
Wake Island, for having dared to retort to defendant's agent in a tone and manner matching, if not
befitting his intemperate language and arrogant attitude. As a consequence, Capt. Zentner's
attempt to humiliate Rafael Zulueta had boomeranged against him (Zentner), in the presence of
the other passengers and the crew. It was, also, in their presence that defendant's agent had
referred to the plaintiffs as "monkeys," a racial insult not made openly and publicly in the
abovementioned previous cases against airlines.

In other words, Mr. Zulueta was off-loaded, not to protect the safety of the aircraft and its
passengers, but to retaliate and punish him for the embarrassment and loss of face thus suffered
by defendant's agent. This vindictive motive is made more manifest by the note delivered to Mr.
Zulueta by defendant's airport manager at Wake Island, Mr. Sitton, stating that the former's stay
therein would be "for a minimum of one week," during which he would be charged $13.30 per
day. This reference to a "minimum of one week" revealed the intention to keep him there
stranded that long, for no other plane, headed for Manila, was expected within said period of
time, although Mr. Zulueta managed to board, days later, a plane that brought him to Hawaii,
whence he flew back to the Philippines, via Japan.

Neither may criminal cases, nor the cases for libel and slander cited in the defendant's motion for
reconsideration, be equated with the present case. Indeed, in ordinary criminal cases, the award
for damages is, in actual practice, of purely academic value, for the convicts generally belong to
the poorest class of society. There is, moreover, a fundamental difference between said cases and
the one at bar. The Zuluetas had a contract of carriage with the defendant, as a common carrier,
pursuant to which the latter was bound, for a substantial monetary consideration paid by the
former, not merely to transport them to Manila, but, also, to do so with "extraordinary diligence"
or "utmost diligence." 9 The responsibility of the common carrier, under said contract, as regards
the passenger's safety, is of such a nature, affecting as it does public interest, that it "cannot be
dispensed with" or even "lessened by stipulation, by the posting of notices, by statements on
tickets, or otherwise." 10 In the present case, the defendant did not only fail to comply with its
obligation to transport Mr. Zulueta to Manila, but, also, acted in a manner calculated to humiliate
him, to chastise him, to make him suffer, to cause to him the greatest possible inconvenience, by
leaving him in a desolate island, in the expectation that he would be stranded there for a
"minimum of one week" and, in addition thereto, charged therefor $13.30 a day.

It is urged by the defendant that exemplary damages are not recoverable in quasi-delicts,
pursuant to Article 2231 of our Civil Code, except when the defendant has acted with "gross
negligence," and that there is no specific finding that it had so acted. It is obvious, however, that
in off-loading plaintiff at Wake Island, under the circumstances heretofore adverted to,
defendant's agents had acted with malice aforethought and evident bad faith. If "gross
negligence" warrants the award of exemplary damages, with more reason is its imposition
justified when the act performed is deliberate, malicious and tainted with bad faith. Thus, in
Lopez v. PANAM, 11 We held:

The rationale behind exemplary or corrective damages is, as the name implies, to
provide an example or correction for public good. Defendant having breached its
contracts in bad faith, the court, as stated earlier, may award exemplary damages
in addition to moral damages (Articles 2229, 2232, New Civil Code.)

Similarly, in NWA v. Cuenca, 12 this Court declared that an award for exemplary damages was
justified by the fact that the airline's "agent had acted in a wanton, reckless and oppressive
manner" in compelling Cuenca, upon arrival at Okinawa, to transfer, over his objection, from the
first class, where he was accommodated from Manila to Okinawa, to the tourist class, in his trip
to Japan, "under threat of otherwise leaving him in Okinawa," despite the fact that he had paid in
full the first class fare and was issued in Manila a first class ticket.

Defendant cites Rotea v. Halili, 13 in support of the proposition that a principal is not liable for
exemplary damages owing to acts of his agent unless the former has participated in said acts or
ratified the same. Said case involved, however, the subsidiary civil liability of an employer
arising from criminal acts of his employee, and "exemplary damages ... may be imposed when
the crime was committed with one or more aggravating circumstances." 14 Accordingly, the Rotea
case is not in point, for the case at bar involves a breach of contract, as well as a quasi-delict.

Neither may the case of Palisoc v. Brillantes, 15 invoked by the defendant, be equated with the
case at bar. The Palisoc case dealt with the liability of school officials for damages arising from
the death of a student (Palisoc) due to fist blows given by another student (Daffon), in the course
of a quarrel between them, while in a laboratory room of the Manila Technical Institute. In an
action for damages, the head thereof and the teacher in charge of said laboratory were held
jointly and severally liable with the student who caused said death, for failure of the school to
provide "adequate supervision over the activities of the students in the school premises," to
protect them "from harm, whether at the hands of fellow students or other parties." Such liability
was predicated upon Article 2180 of our Civil Code, the pertinent part of which reads:

ART. 2180. The obligation imposed by Article 2176 is demandable not only for
one's own acts or omissions, but also for those of persons for whom one is
responsible.

xxx xxx xxx

Lastly, teachers or heads of establishments of arts and trades shall be liable for
damages caused by their pupils and students or apprentices, so long as they
remain in their custody.

xxx xxx xxx

Obviously, the amount of damages warded in the Palisoc case is not and cannot serve as the
measure of the damages recoverable in the present case, the latter having been caused directly
and intentionally by an employee or agent of the defendant, whereas the student who killed the
young Palisoc was in no wise an agent of the school. Moreover, upon her arrival in the
Philippines, Mrs. Zulueta reported her husband's predicament to defendant's local manager and
asked him to forthwith have him (Mr. Zulueta) brought to Manila, which defendant's
aforementioned manager refused to do, thereby impliedly ratifying the off-loading of Mr. Zulueta
at Wake Island.

It is next urged that, under the contract of carriage with the defendant, Mr. Zulueta was bound to
be present at the time scheduled for the departure of defendant's plane and that he had,
consequently, violated said contract when he did not show up at such time. This argument might
have had some weight had defendant's plane taken off before Mr. Zulueta had shown up. But the
fact is that he was ready, willing and able to board the plane about two hours before it actually
took off, and that he was deliberately and maliciously off-loaded on account of his altercation
with Capt. Zentner. It should, also, be noted that, although Mr. Zulueta was delayed some 20 to
30 minutes, the arrival or departure of planes is often delayed for much longer periods of time.
Followed to its logical conclusion, the argument adduced by the defense suggests that airlines
should be held liable for damages due to the inconvenience and anxiety, aside from actual
damages, suffered by many passengers either in their haste to arrive at the airport on scheduled
time just to find that their plane will not take off until later, or by reason of the late arrival of the
aircraft at its destination.

PANAM impugns the award of attorney's fees upon the ground that no penalty should be
imposed upon the right to litigate; that, by law, it may be awarded only in exceptional cases; that
the claim for attorney's fees has not been proven; and that said defendant was justified in
resisting plaintiff's claim "because it was patently exorbitant."

Nothing, however, can be farther from the truth. Indeed apart from plaintiff's claim for actual
damages, the amount of which is not contested, plaintiffs did not ask any specific sum by way of
exemplary and moral damages, as well as attorney's fees, and left the amount thereof to the
"sound discretion" of the lower court. This, precisely, is the reason why PANAM, now, alleges
without justification that the lower court had no jurisdiction over the subject matter of the
present case.

Moreover, Article 2208 of our Civil Code expressly authorizes the award of attorney's fees "when
exemplary damages are awarded," as they are in this case as well as "in any other case
where the court deems it just and equitable that attorney's fees ... be recovered," and We so deem
it just and equitable in the present case, considering the "exceptional" circumstances obtaining
therein, particularly the bad faith with which defendant's agent had acted, the place where and
the conditions under which Rafael Zulueta was left at Wake Island, the absolute refusal of
defendant's manager in Manila to take any step whatsoever to alleviate Mr. Zulueta's
predicament at Wake and have him brought to Manila which, under their contract of carriage,
was defendant's obligation to discharge with "extra-ordinary" or "utmost" diligence and, the
"racial" factor that had, likewise, tainted the decision of defendant's agent, Capt. Zentner, to off-
load him at Wake Island.
As regards the evidence necessary to justify the sum of P75,000 awarded as attorney's fees in this
case, suffice it to say that the quantity and quality of the services rendered by plaintiffs' counsel
appearing on record, apart from the nature of the case and the amount involved therein, as well
as his prestige as one of the most distinguished members of the legal profession in the
Philippines, of which judicial cognizance may be taken, amply justify said award, which is a
little over 10% of the damages (P700,000) collectible by plaintiffs herein. Indeed, the attorney's
fees in this case is proportionally much less than that adjudged in Lopez v. PANAM 16 in which
the judgment rendered for attorney's fees (P50,000) was almost 20% of the damages (P275,000)
recovered by the plaintiffs therein.

The defense assails the last part of the decision sought to be reconsidered, in which relying
upon Article 172 of our Civil Code, which provides that "(t)he wife cannot bind the conjugal
partnership without the husband's consent, except in cases provided by law," and it is not claimed
that this is one of such cases We denied a motion, filed by Mrs. Zulueta, for the dismissal of
this case, insofar as she is concerned - she having settled all her differences with the defendant,
which appears to have paid her the sum of P50,000 therefor - "without prejudice to this sum
being deducted from the award made in said decision." Defendant now alleges that this is
tantamount to holding that said compromise agreement is both effective and ineffective.

This, of course, is not true. The payment is effective, insofar as it is deductible from the award,
and, because it is due (or part of the amount due) from the defendant, with or without its
compromise agreement with Mrs. Zulueta. What is ineffective is the compromise agreement,
insofar as the conjugal partnership is concerned. Mrs. Zulueta's motion was for the dismissal of
the case insofar as she was concerned, and the defense cited in support thereof Article 113 of said
Code, pursuant to which "(t)he husband must be joined in all suits by or against the wife
except: ... (2) If they have in fact been separated for at least one year." This provision, We held,
however, refers to suits in which the wife is the principal or real party in interest, not to the case
at bar, "in which the husband is the main party in interest, both as the person principally
aggrieved and as administrator of the conjugal partnership ... he having acted in this capacity in
entering into the contract of carriage with PANAM and paid the amount due to the latter, under
the contract, with funds of the conjugal partnership," to which the amounts recoverable for
breach of said contract, accordingly, belong. The damages suffered by Mrs. Zulueta were mainly
an in accident of the humiliation to which her husband had been subjected. The Court ordered
that said sum of P50,00 paid by PANAM to Mrs. Zulueta be deducted from the aggregate award
in favor of the plaintiffs herein for the simple reason that upon liquidation of the conjugal
partnership, as provided by law, said amount would have to be reckoned with, either as part of
her share in the partnership, or as part of the support which might have been or may be due to her
as wife of Rafael Zulueta. It would surely be inane to sentence the defendant to pay the P700,000
due to the plaintiffs and to direct Mrs. Zulueta to return said P50,000 to the defendant.

In this connection, it is noteworthy that, for obvious reasons of public policy, she is not allowed
by law to waive her share in the conjugal partnership, before the dissolution thereof. 17 She
cannot even acquire any property by gratuitous title, without the husband's consent, except from
her ascendants, descendants, parents-in-law, and collateral relatives within the fourth degree. 18
It is true that the law favors and encourages the settlement of litigations by compromise
agreement between the contending parties, but, it certainly does not favor a settlement with one
of the spouses, both of whom are plaintiffs or defendants in a common cause, such as the defense
of the rights of the conjugal partnership, when the effect, even if indirect, of the compromise is to
jeopardize "the solidarity of the family" which the
law 19 seeks to protect by creating an additional cause for the misunderstanding that had arisen
between such spouses during the litigation, and thus rendering more difficult a reconciliation
between them.

It is urged that there is no proof as to the purpose of the trip of the plaintiffs, that neither is there
any evidence that the money used to pay the plane tickets came from the conjugal funds and that
the award to Mrs. Zulueta was for her personal suffering or injuries. There was, however, no
individual or specific award in favor of Mrs. Zulueta or any of the plaintiffs. The award was
made in their favor collectively. Again, in the absence of said proof, the presumption is that the
purpose of the trip was for the common benefit of the plaintiffs and that the money had come
from the conjugal funds, for, unless there is proof to the contrary, it is presumed "(t)hat things
have happened according to the ordinary course of nature and the ordinary habits of life." 20 In
fact Manresa maintains 21 that they are deemed conjugal, when the source of the money used
therefor is not established, even if the purchase had been made by the wife. 22 And this is the rule
obtaining in the Philippines. Even property registered, under the Torrens system, in the name of
one of the spouses, or in that of the wife only, if acquired during the marriage, is presumed to
belong to the conjugal partnership, unless there is competent proof to the contrary. 23

PANAM maintains that the damages involved in the case at bar are not among those forming part
of the conjugal partnership pursuant to Article 153 of the Civil Code, reading:

ART. 153. The following are conjugal partnership property:

(1) That which is acquired by onerous title during the marriage at the expense of
the common fund, whether the acquisition be for the partnership, or for only one
of the spouses;

(2) That which is obtained by the industry, or work, or as salary of the spouses, or
of either of them;

(3) The fruits, rents or interests received or due during the marriage, coming from
the common property or from the exclusive property of each spouse.

Considering that the damages in question have arisen from, inter alia, a breach of plaintiffs'
contract of carriage with the defendant, for which plaintiffs paid their fare with funds presumably
belonging to the conjugal partnership, We hold that said damages fall under paragraph (1) of said
Article 153, the right thereto having been "acquired by onerous title during the marriage ... ."
This conclusion is bolstered up by Article 148 of our Civil Code, according to which:

ART. 148. The following shall be the exclusive property of each spouse:
 (1) That which is brought to the marriage as his or her own;

(2) That which each acquires, during the marriage, by lucrative title;

(3) That which is acquired by right of redemption or by exchange with other

property belonging to only one of the spouses;

(4) That which is purchased with exclusive money of the wife or of the husband.

The damages involved in the case at bar do not come under any of these provisions or of the
other provisions forming part of Chapter 3, Title VI, of Book I of the Civil Code, which chapter
is entitled "Paraphernal Property." What is more, if "(t)hat which is acquired by right of
redemption or by exchange with other property belonging to only one of the spouses," and "(t)hat
which is purchased with exclusive money of the wife or of the husband," 24 belong exclusively to
such wife or husband, it follows necessarily that that which is acquired with money of the
conjugal partnership belongs thereto or forms part thereof. The rulings in Maramba v. Lozano 25
and Perez v. Lantin, 26 cited in defendant's motion for reconsideration, are, in effect, adverse
thereto. In both cases, it was merely held that the presumption under Article 160 of our Civil
Code to the effect that all property of the marriage belong to the conjugal partnership does
not apply unless it is shown that it was acquired during marriage. In the present case, the contract
of carriage was concededly entered into, and the damages claimed by the plaintiffs were
incurred, during marriage. Hence, the rights accruing from said contract, including those
resulting from breach thereof by the defendant, are presumed to belong to the conjugal
partnership of Mr. and Mrs. Zulueta. The fact that such breach of contract was coupled, also,
with a quasi-delict constitutes an aggravating circumstance and can not possibly have the effect
of depriving the conjugal partnership of such property rights.

Defendant insists that the use of conjugal funds to redeem property does not make the property
redeemed conjugal if the right of redemption pertained to the wife. In the absence, however, of
proof that such right of redemption pertains to the wife and there is no proof that the contract
of carriage with PANAM or the money paid therefor belongs to Mrs. Zulueta the property
involved, or the rights arising therefrom, must be presumed, therefore, to form part of the
conjugal partnership.

It is true that in Lilius v. Manila Railroad Co., 27 it was held that the "patrimonial and moral
damages" awarded to a young and beautiful woman by reason of a scar in consequence of an
injury resulting from an automobile accident which disfigured her face and fractured her left
leg, as well as caused a permanent deformity, are her paraphernal property. Defendant cites, also,
in support of its contention the following passage from Colin y Capitant:

No esta resuelta expresamente en la legislacion espaola la cuestion de si las

indemnizaciones debidas por accidentes del trabaho tienen la consideracion de
gananciales, o son bienes particulares de los conyuges.

Inclinan a la solucion de que estas indemnizaciones deben ser consideradas como

gananciales, el hecho de que la sociedad pierde la capacidad de trabajocon el
 accidente, que a ella le pertenece, puesto que de la sociedad son losfrutos de ese
trabajo; en cambio, la consideracion de que igual manera que losbienes que
sustituyen a los que cada conyuge lleva al matrimonio como propiostienen el
caracter de propios, hace pensar que las indemnizaciones que vengana suplir la
capacidad de trabajo aportada por cada conyuge a la sociedad, debenser
juridicamente reputadas como bienes propios del conyuge que haya sufrido
elaccidente. Asi se llega a la misma solucion aportada por la jurisprudencia
francesca. 28

This opinion is, however, undecisive, to say the least. It should be noted that Colin y Capitant
were commenting on the French Civil Code; that their comment referred to indemnities due in
consequence of "accidentes del trabajo "resulting in physical injuries sustained by one of the
spouses (which Mrs. Zulueta has not suffered); and that said commentators admit that the
question whether or not said damages are paraphernal property or belong to the conjugal
partnership is not settled under the Spanish law. 29 Besides, the French law and jurisprudence
to which the comments of Planiol and Ripert, likewise, refer are inapposite to the question
under consideration, because they differ basically from the Spanish law in the treatment of the
property relations between husband and wife. Indeed, our Civil Code, like the Spanish Civil
Code, favors the system of conjugal partnership of gains. Accordingly, the former provides that,
"(i)n the absence of marriage settlements, or when the same are void, the system of relative
community or conjugal partnership of gains ... shall govern the property relations between" the
spouses. 30 Hence, "(a)ll property of the marriage is presumed to belong to the conjugal
partnership, unless it be proved that it pertains exclusively to the husband or to the wife." 31

No similar rules are found in the French Civil Code. What is more, under the provisions thereof,
the conjugal partnership exists only when so stipulated in the "capitulaciones matrimoniales" or
by way of exception. In the language of Manresa

Prescindimos de los preceptos de los Condigos de Francia, Italia, Holanda,

Portugal, Alemania y Suiza, porsue solo excepcionalmente, o cuando asi se pacta
en las capitulaciones, admiten el sistema de gananciales. 32

Again, Colin y Capitant, as well as the Lilius case, refer to damages recovered for physical
injuries suffered by the wife. In the case at bar, the party mainly injured, although not physically,
is the husband.

Accordingly, the other Philippine cases 33 and those from Louisiana whose civil law is based
upon the French Civil Code cited by the defendant, which similarly refer to moral damages
due to physical injuries suffered by the wife, are, likewise, inapplicable to the case at bar.

We find, therefore, no plausible reason to disturb the views expressed in Our decision
promulgated on February 29, 1972.

WHEREFORE, the motions for reconsideration above-referred to should be, as they are hereby
denied.
Makalintal, Zaldivar, Fernando, Makasiar, Antonio and Esguerra, JJ., concur.

Castro and Teehankee, JJ., took no part.

Barredo, J., voted to modify the judgment by reducing the amount of the awarded damages and
individualizing the same, and now reserves the filing of a separate concurring and dissenting
opinion in support of his vote.

G.R. No. L-25355 August 28, 1969

THE PEOPLE OF THE PHILIPPINES, plaintiff,

vs.
FROILAN LAGRIMAS, accused,
HEIRS OF PELAGIO CAGRO, heirs-appellants,
MERCEDES AGUIRRE DE LAGRIMAS, movant-appellee.

Socrates G. Desales for heirs-appellants.

Marciano Chitongco for movant-appellee.

FERNANDO, J.:

The Civil Code, under the conditions therein specified, recognizes the liability of the
conjugal partnership for fines and indemnities imposed upon either husband or wife "after the
responsibilities enumerated in article 161 have been covered," in the absence of any separate
property of the offending spouse or its insufficiency. 1 How such an obligation "may be enforced
against the partnership assets" is the question, one of first impression, raised in this appeal from a
lower court order, based on the assumption of the total exemption of the conjugal partnership
from the liability thus incurred, prior to the stage of liquidation. The result was to set aside the
preliminary attachment and thereafter the writ of execution in favor of the heirs of the murdered
victim, appellants before us, the judgment against the accused imposing not only the penalty of
reclusion perpetua but also the indemnification to such heirs having attained the status of finality.
In view of the failure, apparent on the face of the appealed order, to respect what the Civil Code
ordains, we reverse and remand the case for further proceedings.

The brief of appellants, the heirs of Pelagio Cagro, the murdered victim, discloses that on
February 19, 1960 an information was filed against the accused, Froilan Lagrimas, for the above
murder committed on February 15, 1960 in Pambujan, Samar. Thereafter, appellants as such
heirs, filed on February 27, 1960 a motion for the issuance of a writ of preliminary attachment on
the property of the accused, such motion being granted in an order of March 5, 1960. After trial,
the lower court found the accused guilty of the crime charged and sentenced him to suffer the
penalty of reclusion perpetua and to indemnify the appellants as such heirs in the sum of
P6,000.00 plus the additional sum of P10,000.00 in the concept of damages, attorney's fees and
burial expenses. An appeal from the judgment was elevated to this Court by the accused but
thereafter withdrawn, the judgment, therefore, becoming final on October 11, 1962.
 A writ of execution to cover the civil indemnity was issued by the lower court upon motion
of appellants. A levy was had on eleven parcels of land in the province declared for tax purposes
in the name of the accused. The sale thereof at public auction was scheduled on January 5, 1965
but on December 29, 1964 the wife of the accused, Mercedes Aguirre de Lagrimas, filed a
motion to quash the writ of attachment as well as the writ of execution with the allegation that
the property levied upon belonged to the conjugal partnership and, therefore, could not be held
liable for the pecuniary indemnity the husband was required to pay. The then judge of the lower
court granted such motion declaring null and void the order of attachment and the writ of
execution, in accordance with Article 161 of the new Civil Code. Another judge of the same
lower court set aside the above order, sustaining the legality of the preliminary attachment as
well as the writ of execution. Thereafter, upon appellee filing a motion for the reconsideration of
the above order giving due course to the writ of execution, a third judge, then presiding over
such court, the Hon. Ignacio Mangosing, revived the original order of March 5, 1960, declaring
such attachment and the writ of execution thereafter issued as null and void.

This order of August 7, 1965, now on appeal, was premised on the following
considerations: "It can be readily seen from the above-quoted provisions of law that only debts
contracted by the husband or the wife before the marriage, and those of fines and indemnities
imposed upon them, may be enforced against the partnership assets after the charges enumerated
in article 161 have been covered. So that as long as the obligations mentioned in said article 161
have not been paid, the assets of the partnership cannot be made to answer for indemnities like
the one being sought to be enforced in the instant case. And, before the obligations enumerated in
said article 161 can be paid, the conjugal partnership properties should first, by necessity, be
liquidated, and liquidation can take place only after the dissolution of the partnership thru the
occurrence of any of the causes mentioned in article 175 of the same Code, one of which is death
of one of the spouses. Since both are still living there cannot be any dissolution, imprisonment
for life of the husband notwithstanding, in the absence of a judicial separation of properly
decreed in accordance with the provisions of article 191 thereof. Moreover, the fines and
indemnities sought to be charged against the ganancial properties of the accused and his wife are
not such debts and obligations contracted by said accused for the benefit of the conjugal
partnership." 2

The conclusion arrived at by Judge Mangosing follows: "We sympathize with the
predicament of the widow and other heirs of the deceased Pelagio Cagro, but the law is clear on
the matter. The indemnities adjudged by the Court in their favor may only be charged against the
exclusive properties of the accused if he has any, or against his share in the partnership assets
after liquidation thereof if any still remains after the payment of all the items enumerated in
article 161 of the said Civil Code." 3

Hence, this appeal, the heirs of Pelagio Cagro assigning as sole error the quashing and
annulling of the writs of attachment and execution aforesaid. As stated at the outset, we find the
appeal meritorious.

The applicable Civil Code provision 4 is not lacking in explicitness. Fines and indemnities
imposed upon either husband or wife "may be enforced against the partnership assets after the
responsibilities enumerated in article 161 have been covered, if the spouse who is bound should
have no exclusive property or if it should be insufficient; ... ." It is quite plain, therefore, that the
period during which such a liability may be enforced presupposes that the conjugal partnership is
still existing. The law speaks of "partnership assets." It contemplates that the responsibilities to
which enumerated in Article 161, chargeable against such assets, must be complied with first. It
is thus obvious that the termination of the conjugal partnership is not contemplated as a
prerequisite. Whatever doubt may still remain should be erased by the concluding portion of this
article which provides that "at the time of the liquidation of the partnership such spouse shall be
charged for what has been paid for the purposes above-mentioned."

What other conclusion can there be than that the interpretation placed upon this provision
in the challenged order is at war with the plain terms thereof? It cannot elicit our acceptance. Nor
is the reason for such a codal provision difficult to discern. It is a fundamental postulate of our
law that every person criminally liable for felony is also civilly liable. 5 The accused, Froilan
Lagrimas, was, as noted, found guilty of the crime of murder and sentenced to reclusion
perpetua as well as to pay the indemnification to satisfy the civil liability incumbent upon him. If
the appealed order were to be upheld, he would be in effect exempt therefrom, the heirs of the
offended party being made to suffer still further.

It would follow, therefore, that the Civil Code provision, as thus worded, precisely
minimizes the possibility that such additional liability of an accused would be rendered nugatory.
In doing justice to the heirs of the murdered victim, no injustice is committed against the family
of the offender. It is made a condition under this article of the Civil Code that the responsibilities
enumerated in Article 161, covering primarily the maintenance of the family and the education of
the children of the spouses or the legitimate children of one of them as well as other obligations
of a preferential character, are first satisfied. It is thus apparent that the legal scheme cannot be
susceptible to the charge that for a transgression of the law by either husband or wife, the rest of
the family may be made to bear burdens of an extremely onerous character.

The next question is how practical effect would be given this particular liability of the
conjugal partnership for the payment of fines and indemnities imposed upon either husband or
wife? In the brief for appellants, the heirs of Pelagio Cagro, they seek the opportunity to present
evidence as to how the partnership assets could be made to respond, this on the assumption that
the property levied upon does not belong exclusively to the convicted spouse.

In Lacson v. Diaz, 6 which deals with the satisfaction of the debt contracted by husband or
wife before marriage by the conjugal partnership, likewise included in this particular article, it
was held: "Considering that the enforceability of the personal obligations of the husband or wife,
against the conjugal assets, forms the exception to the general rule, it is incumbent upon the one
who invokes this provision or the creditor to show that the requisites for its applicability are
obtaining."

Without departing from the principle thus announced, we make this further observation.
Considering that the obligations mentioned in Article 161 are peculiarly within the knowledge of
the husband or of the wife whose conjugal partnership is made liable, the proof required of the
beneficiaries of the indemnity should not be of the most exacting kind, ordinary credibility
sufficing. Otherwise, the husband or the wife, as the case may be, representing the conjugal
partnership, may find the temptation to magnify its obligation irresistible so as to defeat the right
of recovery of the family of the offended party. That result is to be avoided. The lower court
should be on the alert, therefore, in the appraisal of whatever evidence may be offered to assure
compliance with this codal provision.

WHEREFORE, the appealed order of August 7, 1965 is set aside and the case remanded to
the court of origin for the reception of evidence in accordance with this opinion. With costs
against appellee Mercedes Aguirre de Lagrimas.

Concepcion, C.J., Dizon, Makalintal, Sanchez, Castro, Capistrano, Teehankee and Barredo, JJ.,
concur.
Reyes, J.B.L. and Zaldivar, JJ., are on leave.

VIRGILIO MAQUILAN, G.R. NO. 155409

Petitioner,

Present:

YNARES-SANTIAGO, J.,

Chairperson,

- versus - AUSTRIA-MARTINEZ,

CHICO-NAZARIO, and

NACHURA, JJ.

DITA MAQUILAN, Promulgated:

Respondent. June 8, 2007

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

DECISION
AUSTRIA-MARTINEZ, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court assailing the Decision dated August 30, 2002 promulgated by the Court of Appeals (CA)
in CA-G.R. SP No. 69689, which affirmed the Judgment on Compromise Agreement dated
January 2, 2002 of the Regional Trial Court (RTC), Branch 3, Nabunturan, Compostela Valley,
and the RTC Orders dated January 21, 2002 and February 7, 2002 (ORDERS) in Civil Case No.
656.

The facts of the case, as found by the CA, are as follows:

Herein petitioner and herein private respondent are spouses who once had a
blissful married life and out of which were blessed to have a son. However, their
once sugar coated romance turned bitter when petitioner discovered that private
respondent was having illicit sexual affair with her paramour, which thus,
prompted the petitioner to file a case of adultery against private respondent and
the latters paramour. Consequently, both the private respondent and her
paramour were convicted of the crime charged and were sentenced to suffer an
imprisonment ranging from one (1) year, eight (8) months, minimum of prision
correccional as minimum penalty, to three (3) years, six (6) months and twenty
one (21) days, medium of prision correccional as maximum penalty.

Thereafter, private respondent, through counsel, filed a Petition for

Declaration of Nullity of Marriage, Dissolution and Liquidation of Conjugal
Partnership of Gains and Damages on June 15, 2001 with the Regional Trial
Court, Branch 3 of Nabunturan, Compostela Valley, docketed as Civil Case No.
656, imputing psychological incapacity on the part of the petitioner.

During the pre-trial of the said case, petitioner and private respondent
entered into a COMPROMISE AGREEMENT in the following terms, to wit:
 1. In partial settlement of the conjugal partnership of gains, the
parties agree to the following:

a. P500,000.00 of the money deposited in the bank

jointly in the name of the spouses shall be
withdrawn and deposited in favor and in trust of
their common child, Neil Maquilan, with the
deposit in the joint account of the parties.

The balance of such deposit, which presently stands

at P1,318,043.36, shall be withdrawn and divided
equally by the parties;

b. The store that is now being occupied by the

plaintiff shall be allotted to her while the bodega
shall be for the defendant. The defendant shall be
paid the sum of P50,000.00 as his share in the
stocks of the store in full settlement thereof.

The plaintiff shall be allowed to occupy the bodega

until the time the owner of the lot on which it stands
shall construct a building thereon;

c. The motorcycles shall be divided between them

such that the Kawasaki shall be owned by the
plaintiff while the Honda Dream shall be for the
defendant;

d. The passenger jeep shall be for the plaintiff who

shall pay the defendant the sum of P75,000.00 as
his share thereon and in full settlement thereof;

e. The house and lot shall be to the common child.

2. This settlement is only partial, i.e., without prejudice to the

litigation of other conjugal properties that have not been
mentioned;

xxxx

The said Compromise Agreement was given judicial imprimatur by the

respondent judge in the assailed Judgment On Compromise Agreement, which
was erroneously dated January 2, 2002.
 However, petitioner filed an Omnibus Motion dated January 15, 2002,
praying for the repudiation of the Compromise Agreement and the reconsideration
of the Judgment on Compromise Agreement by the respondent judge on the
grounds that his previous lawyer did not intelligently and judiciously apprise him
of the consequential effects of the Compromise Agreement.

The respondent Judge in the assailed Order dated January 21, 2002,
denied the aforementioned Omnibus Motion.

Displeased, petitioner filed a Motion for Reconsideration of the aforesaid

Order, but the same was denied in the assailed Order dated February 7, 2002.
(Emphasis supplied)

The petitioner filed a Petition for Certiorari and Prohibition with the CA under Rule 65 of
the Rules of Court claiming that the RTC committed grave error and abuse of discretion
amounting to lack or excess of jurisdiction (1) in upholding the validity of the Compromise
Agreement dated January 11, 2002; (2) when it held in its Order dated February 7, 2002 that the
Compromise Agreement was made within the cooling-off period; (3) when it denied petitioners
Motion to Repudiate Compromise Agreement and to Reconsider Its Judgment on Compromise
Agreement; and (4) when it conducted the proceedings without the appearance and participation
of the Office of the Solicitor General and/or the Provincial Prosecutor.

On August 30, 2002, the CA dismissed the Petition for lack of merit. The CA held that the
conviction of the respondent of the crime of adultery does not ipso facto disqualify her from
sharing in the conjugal property, especially considering that she had only been sentenced with
the penalty of prision correccional, a penalty that does not carry the accessory penalty of civil
interdiction which deprives the person of the rights to manage her property and to dispose of
such property inter vivos; that Articles 43 and 63 of the Family Code, which pertain to the effects
of a nullified marriage and the effects of legal separation, respectively, do not apply, considering,
too, that the Petition for the Declaration of the Nullity of Marriage filed by the respondent
invoking Article 36 of the Family Code has yet to be decided, and, hence, it is premature to apply
Articles 43 and 63 of the Family Code; that, although adultery is a ground for legal separation,
nonetheless, Article 63 finds no application in the instant case since no petition to that effect was
filed by the petitioner against the respondent; that the spouses voluntarily separated their
property through their Compromise Agreement with court approval under Article 134 of the
Family Code; that the Compromise Agreement, which embodies the voluntary separation of
property, is valid and binding in all respects because it had been voluntarily entered into by the
parties; that, furthermore, even if it were true that the petitioner was not duly informed by his
previous counsel about the legal effects of the Compromise Agreement, this point is untenable
since the mistake or negligence of the lawyer binds his client, unless such mistake or negligence
amounts to gross negligence or deprivation of due process on the part of his client; that these
exceptions are not present in the instant case; that the Compromise Agreement was plainly
worded and written in simple language, which a person of ordinary intelligence can discern the
consequences thereof, hence, petitioners claim that his consent was vitiated is highly incredible;
that the Compromise Agreement was made during the existence of the marriage of the parties
since it was submitted during the pendency of the petition for declaration of nullity of marriage;
that the application of Article 2035 of the Civil Code is misplaced; that the cooling-off period
under Article 58 of the Family Code has no bearing on the validity of the Compromise
Agreement; that the Compromise Agreement is not contrary to law, morals, good customs, public
order, and public policy; that this agreement may not be later disowned simply because of a
change of mind; that the presence of the Solicitor General or his deputy is not indispensable to
the execution and validity of the Compromise Agreement, since the purpose of his presence is to
curtail any collusion between the parties and to see to it that evidence is not fabricated, and, with
this in mind, nothing in the Compromise Agreement touches on the very merits of the case of
declaration of nullity of marriage for the court to be wary of any possible collusion; and, finally,
that the Compromise Agreement is merely an agreement between the parties to separate their
conjugal properties partially without prejudice to the outcome of the pending case of declaration
of nullity of marriage.

Hence, herein Petition, purely on questions of law, raising the following issues:
 I.

WHETHER OF NOT A SPOUSE CONVICTED OF EITHER CONCUBINAGE

OR ADULTERY, CAN STILL SHARE IN THE CONJUGAL PARTNERSHIP;

II

WHETHER OR NOT A COMPROMISE AGREEMENT ENTERED INTO BY

SPOUSES, ONE OF WHOM WAS CONVICTED OF ADULTERY, GIVING
THE CONVICTED SPOUSE A SHARE IN THE CONJUGAL PROPERTY,
VALID AND LEGAL;

III

WHETHER OR NOT A JUDGMENT FOR ANNULMENT AND LEGAL

SEPARATION IS A PRE-REQUISITE BEFORE A SPOUSE CONVICTED OF
EITHER CONCUBINAGE OR ADULTERY, BE DISQUALIFIED AND
PROHIBITED FROM SHARING IN THE CONJUGAL PROPERTY;

IV

WHETHER OR NOT THE DISQUALIFICATION OF A CONVICTED SPOUSE

OF ADULTERY FROM SHARING IN A CONJUGAL PROPERTY,
CONSTITUTES CIVIL INTERDICTION.

The petitioner argues that the Compromise Agreement should not have been given
judicial imprimatur since it is against law and public policy; that the proceedings where it
was approved is null and void, there being no appearance and participation of the
Solicitor General or the Provincial Prosecutor; that it was timely repudiated; and that the
respondent, having been convicted of adultery, is therefore disqualified from sharing in
the conjugal property.

The Petition must fail.

The essential question is whether the partial voluntary separation of property made by the
spouses pending the petition for declaration of nullity of marriage is valid.
 First. The petitioner contends that the Compromise Agreement is void because it
circumvents the law that prohibits the guilty spouse, who was convicted of either adultery or
concubinage, from sharing in the conjugal property. Since the respondent was convicted of
adultery, the petitioner argues that her share should be forfeited in favor of the common child
under Articles 43(2) and 63 of the Family Code.

To the petitioner, it is the clear intention of the law to disqualify the spouse convicted of
adultery from sharing in the conjugal property; and because the Compromise Agreement is void,
it never became final and executory.

Moreover, the petitioner cites Article 2035 of the Civil Code and argues that since adultery
is a ground for legal separation, the Compromise Agreement is therefore void.

These arguments are specious. The foregoing provisions of the law are inapplicable to the
instant case.

Article 43 of the Family Code refers to Article 42, to wit:

Article 42. The subsequent marriage referred to in the preceding Article

shall be automatically terminated by the recording of the affidavit of reappearance
of the absent spouse, unless there is a judgment annulling the previous marriage
or declaring it void ab initio.

A sworn statement of the fact and circumstances of reappearance shall be

recorded in the civil registry of the residence of the parties to the subsequent
marriage at the instance of any interested person, with due notice to the spouses of
the subsequent marriage and without prejudice to the fact of reappearance being
judicially determined in case such fact is disputed.
where a subsequent marriage is terminated because of the reappearance of an absent spouse;
while Article 63 applies to the effects of a decree of legal separation. The present case involves a
proceeding where the nullity of the marriage is sought to be declared under the ground of
psychological capacity.

Article 2035 of the Civil Code is also clearly inapplicable. The Compromise Agreement
partially divided the properties of the conjugal partnership of gains between the parties and does
not deal with the validity of a marriage or legal separation. It is not among those that are
expressly prohibited by Article 2035.

Moreover, the contention that the Compromise Agreement is tantamount to a circumvention

of the law prohibiting the guilty spouse from sharing in the conjugal properties is misplaced.
Existing law and jurisprudence do not impose such disqualification.

Under Article 143 of the Family Code, separation of property may be effected voluntarily or
for sufficient cause, subject to judicial approval. The questioned Compromise Agreement which
was judicially approved is exactly such a separation of property allowed under the law. This
conclusion holds true even if the proceedings for the declaration of nullity of marriage was still
pending. However, the Court must stress that this voluntary separation of property is
subject to the rights of all creditors of the conjugal partnership of gains and other persons
with pecuniary interest pursuant to Article 136 of the Family Code.

Second. Petitioners claim that since the proceedings before the RTC were void in the
absence of the participation of the provincial prosecutor or solicitor, the voluntary separation
made during the pendency of the case is also void. The proceedings pertaining to the
Compromise Agreement involved the conjugal properties of the spouses. The settlement had no
relation to the questions surrounding the validity of their marriage. Nor did the settlement
amount to a collusion between the parties.

Article 48 of the Family Code states:

Art. 48. In all cases of annulment or declaration of absolute nullity of

marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to
appear on behalf of the State to take steps to prevent collusion between the
parties and to take care that the evidence is not fabricated or suppressed.
(Emphasis supplied)

Section 3(e) of Rule 9 of the 1997 Rules of Court provides:

SEC. 3. Default; declaration of.- x x x x

xxxx

(e) Where no defaults allowed. If the defending party in action for

annulment or declaration of nullity of marriage or for legal separation fails to
answer, the court shall order the prosecuting attorney to investigate whether
or not a collusion between the parties exists if there is no collusion, to
intervene for the State in order to see to it that the evidence submitted is not
fabricated. (Emphasis supplied

Truly, the purpose of the active participation of the Public Prosecutor or the Solicitor
General is to ensure that the interest of the State is represented and protected in proceedings for
annulment and declaration of nullity of marriages by preventing collusion between the parties, or
the fabrication or suppression of evidence. While the appearances of the Solicitor General and/or
the Public Prosecutor are mandatory, the failure of the RTC to require their appearance does not
per se nullify the Compromise Agreement. This Court fully concurs with the findings of the CA:

x x x. It bears emphasizing that the intendment of the law in requiring the

presence of the Solicitor General and/or State prosecutor in all proceedings of
legal separation and annulment or declaration of nullity of marriage is to curtail or
prevent any possibility of collusion between the parties and to see to it that their
evidence respecting the case is not fabricated. In the instant case, there is no
exigency for the presence of the Solicitor General and/or the State prosecutor
because as already stated, nothing in the subject compromise agreement touched
into the very merits of the case of declaration of nullity of marriage for the court
to be wary of any possible collusion between the parties. At the risk of being
repetiti[ve], the compromise agreement pertains merely to an agreement between
the petitioner and the private respondent to separate their conjugal properties
partially without prejudice to the outcome of the pending case of declaration of
nullity of marriage.

Third. The conviction of adultery does not carry the accessory of civil interdiction. Article
34 of the Revised Penal Code provides for the consequences of civil interdiction:

Art. 34. Civil Interdiction. Civil interdiction shall deprive the offender
during the time of his sentence of the rights of parental authority, or guardianship,
either as to the person or property of any ward, of marital authority, of the right to
manage his property and of the right to dispose of such property by any act or any
conveyance inter vivos.

Under Article 333 of the same Code, the penalty for adultery is prision correccional in its
medium and maximum periods. Article 333 should be read with Article 43 of the same Code.
The latter provides:
 Art. 43. Prision correccional Its accessory penalties. The penalty of
prision correccional shall carry with it that of suspension from public office, from
the right to follow a profession or calling, and that of perpetual special
disqualification from the right of suffrage, if the duration of said imprisonment
shall exceed eighteen months. The offender shall suffer the disqualification
provided in this article although pardoned as to the principal penalty, unless the
same shall have been expressly remitted in the pardon.

It is clear, therefore, and as correctly held by the CA, that the crime of adultery does not
carry the accessory penalty of civil interdiction which deprives the person of the rights to
manage her property and to dispose of such property inter vivos.

Fourth. Neither could it be said that the petitioner was not intelligently and judiciously
informed of the consequential effects of the compromise agreement, and that, on this basis, he
may repudiate the Compromise Agreement. The argument of the petitioner that he was not duly
informed by his previous counsel about the legal effects of the voluntary settlement is not
convincing. Mistake or vitiation of consent, as now claimed by the petitioner as his basis for
repudiating the settlement, could hardly be said to be evident. In Salonga v. Court of Appeals,
this Court held:

[I]t is well-settled that the negligence of counsel binds the client. This is
based on the rule that any act performed by a lawyer within the scope of his
general or implied authority is regarded as an act of his client. Consequently, the
mistake or negligence of petitioners' counsel may result in the rendition of an
unfavorable judgment against them.

Exceptions to the foregoing have been recognized by the Court in cases

where reckless or gross negligence of counsel deprives the client of due process
of law, or when its application "results in the outright deprivation of one's
property through a technicality." x x x x
 None of these exceptions has been sufficiently shown in the present case.

WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals is

AFFIRMED with MODIFICATION that the subject Compromise Agreement is VALID
without prejudice to the rights of all creditors and other persons with pecuniary interest in the
properties of the conjugal partnership of gains.

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

ERLINDA A. AGAPAY, petitioner, vs. CARLINA (CORNELIA) V. PALANG and HERMINIA

P. DELA CRUZ, respondents.

DECISION

ROMERO, J.:

Before us is a petition for review of the decision of the Court of Appeals in CA-G.R. CV No.
24199 entitled Erlinda Agapay v. Carlina (Cornelia) Palang and Herminia P. Dela Cruz dated
June 22, 1994 involving the ownership of two parcels of land acquired during the cohabitation of
petitioner and private respondents legitimate spouse.

Miguel Palang contracted his first marriage on July 16, 1949 when he took private respondent
Carlina (or Cornelia) Vallesterol as a wife at the Pozorrubio Roman Catholic Church in
Pangasinan. A few months after the wedding, in October 1949, he left to work in Hawaii.
Miguel and Carlinas only child, Herminia Palang, was born on May 12, 1950.

Miguel returned in 1954 for a year. His next visit to the Philippines was in 1964 and during the
entire duration of his year-long sojourn he stayed in Zambales with his brother, not in Pangasinan
with his wife and child. The trial court found evidence that as early as 1957, Miguel had
attempted to divorce Carlina in Hawaii. When he returned for good in 1972, he refused to live
with private respondents, but stayed alone in a house in Pozorrubio, Pangasinan.

On July 15, 1973, the then sixty-three-year-old Miguel contracted his second marriage with
nineteen-year-old Erlinda Agapay, herein petitioner. Two months earlier, on May 17, 1973,
Miguel and Erlinda, as evidenced by the Deed of Sale, jointly purchased a parcel of agricultural
land located at San Felipe, Binalonan, Pangasinan with an area of 10,080 square meters.
Consequently, Transfer Certificate of Title No. 101736 covering said rice land was issued in their
names.
A house and lot in Binalonan, Pangasinan was likewise purchased on September 23, 1975,
allegedly by Erlinda as the sole vendee. TCT No. 143120 covering said property was later
issued in her name.

On October 30, 1975, Miguel and Cornelia Palang executed a Deed of Donation as a form of
compromise agreement to settle and end a case filed by the latter. The parties therein agreed to
donate their conjugal property consisting of six parcels of land to their only child, Herminia
Palang.

Miguel and Erlindas cohabitation produced a son, Kristopher A. Palang, born on December 6,
1977. In 1979, Miguel and Erlinda were convicted of Concubinage upon Carlinas complaint.
Two years later, on February 15, 1981, Miguel died.

On July 11, 1981, Carlina Palang and her daughter Herminia Palang de la Cruz, herein private
respondents, instituted the case at bar, an action for recovery of ownership and possession with
damages against petitioner before the Regional Trial Court in Urdaneta, Pangasinan (Civil Case
No. U-4265). Private respondents sought to get back the riceland and the house and lot both
located at Binalonan, Pangasinan allegedly purchased by Miguel during his cohabitation with
petitioner.

Petitioner, as defendant below, contended that while the riceland covered by TCT No. 101736 is
registered in their names (Miguel and Erlinda), she had already given her half of the property to
their son Kristopher Palang. She added that the house and lot covered by TCT No. 143120 is her
sole property, having bought the same with her own money. Erlinda added that Carlina is
precluded from claiming aforesaid properties since the latter had already donated their conjugal
estate to Herminia.

After trial on the merits, the lower court rendered its decision on June 30, 1989 dismissing the
complaint after declaring that there was little evidence to prove that the subject properties
pertained to the conjugal property of Carlina and Miguel Palang. The lower court went on to
provide for the intestate shares of the parties, particularly of Kristopher Palang, Miguels
illegitimate son. The dispositive portion of the decision reads:

WHEREFORE, premises considered, judgment is hereby rendered-

1) Dismissing the complaint, with costs against plaintiffs;

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

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

5) No pronouncement as to damages and attorneys fees.

SO ORDERED.

On appeal, respondent court reversed the trial courts decision. The Court of Appeals rendered
its decision on July 22, 1994 with the following dispositive portion:

WHEREFORE, PREMISES CONSIDERED, the appealed decision is hereby REVERSED and

another one entered:

1. Declaring plaintiffs-appellants the owners of the properties in question;

2. Ordering defendant-appellee to vacate and deliver the properties in question to herein

plaintiffs-appellants;

3. Ordering the Register of Deeds of Pangasinan to cancel Transfer Certificate of Title

Nos. 143120 and 101736 and to issue in lieu thereof another certificate of title in the name of
plaintiffs-appellants.

No pronouncement as to costs.

Hence, this petition.

Petitioner claims that the Court of Appeals erred in not sustaining the validity of two deeds of
absolute sale covering the riceland and the house and lot, the first in favor of Miguel Palang and
Erlinda Agapay and the second, in favor of Erlinda Agapay alone. Second, petitioner contends
that respondent appellate court erred in not declaring Kristopher A. Palang as Miguel Palangs
illegitimate son and thus entitled to inherit from Miguels estate. Third, respondent court erred,
according to petitioner, in not finding that there is sufficient pleading and evidence that
Kristoffer A. Palang or Christopher A. Palang should be considered as party-defendant in Civil
Case No. U-4625 before the trial court and in CA-G.R. No. 24199.

After studying the merits of the instant case, as well as the pertinent provisions of law and
jurisprudence, the Court denies the petition and affirms the questioned decision of the Court of
Appeals.
The first and principal issue is the ownership of the two pieces of property subject of this action.
Petitioner assails the validity of the deeds of conveyance over the same parcels of land. There is
no dispute that the transfers of ownership from the original owners of the riceland and the house
and lot, Corazon Ilomin and the spouses Cespedes, respectively, were valid.

The sale of the riceland on May 17, 1973, was made in favor of Miguel and Erlinda. The
provision of law applicable here is Article 148 of the Family Code providing for cases of
cohabitation when a man and a woman who are not capacitated to marry each other live
exclusively with each other as husband and wife without the benefit of marriage or under a void
marriage. While Miguel and Erlinda contracted marriage on July 15, 1973, said union was
patently void because the earlier marriage of Miguel and Carlina was still susbsisting and
unaffected by the latters de facto separation.

Under Article 148, only the properties acquired by both of the parties through their actual joint
contribution of money, property or industry shall be owned by them in common in proportion
to their respective contributions. It must be stressed that actual contribution is required by this
provision, in contrast to Article 147 which states that efforts in the care and maintenance of the
family and household, are regarded as contributions to the acquisition of common property by
one who has no salary or income or work or industry. If the actual contribution of the party is
not proved, there will be no co-ownership and no presumption of equal shares.

In the case at bar, Erlinda tried to establish by her testimony that she is engaged in the business
of buy and sell and had a sari-sari store but failed to persuade us that she actually contributed
money to buy the subject riceland. Worth noting is the fact that on the date of conveyance, May
17, 1973, petitioner was only around twenty years of age and Miguel Palang was already sixty-
four and a pensioner of the U.S. Government. Considering her youthfulness, it is unrealistic to
conclude that in 1973 she contributed P3,750.00 as her share in the purchase price of subject
property, there being no proof of the same.

Petitioner now claims that the riceland was bought two months before Miguel and Erlinda
actually cohabited. In the nature of an afterthought, said added assertion was intended to exclude
their case from the operation of Article 148 of the Family Code. Proof of the precise date when
they commenced their adulterous cohabitation not having been adduced, we cannot state
definitively that the riceland was purchased even before they started living together. In any case,
even assuming that the subject property was bought before cohabitation, the rules of co-
ownership would still apply and proof of actual contribution would still be essential.

Since petitioner failed to prove that she contributed money to the purchase price of the riceland
in Binalonan, Pangasinan, we find no basis to justify her co-ownership with Miguel over the
same. Consequently, the riceland should, as correctly held by the Court of Appeals, revert to the
conjugal partnership property of the deceased Miguel and private respondent Carlina Palang.

Furthermore, it is immaterial that Miguel and Carlina previously agreed to donate their conjugal
property in favor of their daughter Herminia in 1975. The trial court erred in holding that the
decision adopting their compromise agreement in effect partakes the nature of judicial
confirmation of the separation of property between spouses and the termination of the conjugal
partnership. Separation of property between spouses during the marriage shall not take place
except by judicial order or without judicial conferment when there is an express stipulation in the
marriage settlements. The judgment which resulted from the parties compromise was not
specifically and expressly for separation of property and should not be so inferred.

With respect to the house and lot, Erlinda allegedly bought the same for P20,000.00 on
September 23, 1975 when she was only 22 years old. The testimony of the notary public who
prepared the deed of conveyance for the property reveals the falsehood of this claim. Atty.
Constantino Sagun testified that Miguel Palang provided the money for the purchase price and
directed that Erlindas name alone be placed as the vendee.

The transaction was properly a donation made by Miguel to Erlinda, but one which was clearly
void and inexistent by express provision of law because it was made between persons guilty of
adultery or concubinage at the time of the donation, under Article 739 of the Civil Code.
Moreover, Article 87 of the Family Code expressly provides that the prohibition against
donations between spouses now applies to donations between persons living together as husband
and wife without a valid marriage, for otherwise, the condition of those who incurred guilt would
turn out to be better than those in legal union.

The second issue concerning Kristopher Palangs status and claim as an illegitimate son and heir
to Miguels estate is here resolved in favor of respondent courts correct assessment that the trial
court erred in making pronouncements regarding Kristophers heirship and filiation inasmuch as
questions as to who are the heirs of the decedent, proof of filiation of illegitimate children and
the determination of the estate of the latter and claims thereto should be ventilated in the proper
probate court or in a special proceeding instituted for the purpose and cannot be adjudicated in
the instant ordinary civil action which is for recovery of ownership and possession.

As regards the third issue, petitioner contends that Kristopher Palang should be considered as
party-defendant in the case at bar following the trial courts decision which expressly found that
Kristopher had not been impleaded as party defendant but theorized that he had submitted to the
courts jurisdiction through his mother/guardian ad litem. The trial court erred gravely.
Kristopher, not having been impleaded, was, therefore, not a party to the case at bar. His mother,
Erlinda, cannot be called his guardian ad litem for he was not involved in the case at bar.
Petitioner adds that there is no need for Kristopher to file another action to prove that he is the
illegitimate son of Miguel, in order to avoid multiplicity of suits. Petitioners grave error has
been discussed in the preceeding paragraph where the need for probate proceedings to resolve
the settlement of Miguels estate and Kristophers successional rights has been pointed out.

WHEREFORE, the instant petition is hereby DENIED. The questioned decision of the Court
of Appeals is AFFIRMED. Costs against petitioner.

G.R. No. 122749 July 31, 1996

ANTONIO A. S. VALDEZ, petitioner,
vs.
REGIONAL TRIAL COURT, BRANCH 102, QUEZON CITY, and CONSUELO M.
GOMEZ-VALDEZ, respondents.

VITUG, J.:p

The petition for new bewails, purely on the question of law, an alleged error committed by the
Regional Trial Court in Civil Case No. Q-92-12539. Petitioner avers that the court a quo has
failed to apply the correct law that should govern the disposition of a family dwelling in a
situation where a marriage is declared void ab initio because of psychological incapacity on the
part of either or both parties in the contract.

The pertinent facts giving rise to this incident are, by large, not in dispute.

Antonio Valdez and Consuelo Gomez were married on 05 January 1971. Begotten during the
marriage were five children. In a petition, dated 22 June 1992, Valdez sought the declaration of
nullity of the marriage pursuant to Article 36 of the Family code (docketed Civil Case No. Q-92-
12539, Regional Trial Court of Quezon City, Branch 102). After the hearing the parties following
the joinder of issues, the trial court, 1 in its decision of 29 July 1994, granted the petition, viz:

WHEREFORE, judgment is hereby rendered as follows:

(1) The marriage of petitioner Antonio Valdez and respondent Consuelo Gomez-Valdez is
hereby declared null and void under Article 36 of the Family Code on the ground of their
mutual psychological incapacity to comply with their essential marital obligations;

(2) The three older children, Carlos Enrique III, Antonio Quintin and Angela Rosario
shall choose which parent they would want to stay with.

Stella Eloisa and Joaquin Pedro shall be placed in the custody of their mother, herein
respondent Consuelo Gomez-Valdes.

The petitioner and respondent shall have visitation rights over the children who are in the
custody of the other.

(3) The petitioner and the respondent are directed to start proceedings on the liquidation
of their common properties as defined by Article 147 of the Family Code, and to comply
with the provisions of Articles 50, 51, and 52 of the same code, within thirty (30) days
from notice of this decision.

Let a copy of this decision be furnished the Local Civil Registrar of Mandaluyong, Metro
Manila, for proper recording in the registry of marriages. 2 (Emphasis ours.)
Consuelo Gomez sought a clarification of that portion of the decision directing compliance with
Articles 50, 51 and 52 of the Family Code. She asserted that the Family Code contained no
provisions on the procedure for the liquidation of common property in "unions without
marriage." Parenthetically, during the hearing of the motion, the children filed a joint affidavit
expressing their desire to remain with their father, Antonio Valdez, herein petitioner.

In an order, dated 05 May 1995, the trial court made the following clarification:

Consequently, considering that Article 147 of the Family Code explicitly provides that
the property acquired by both parties during their union, in the absence of proof to the
contrary, are presumed to have been obtained through the joint efforts of the parties and
will be owned by them in equal shares, plaintiff and defendant will own their "family
home" and all their properties for that matter in equal shares.

In the liquidation and partition of properties owned in common by the plaintiff and
defendant, the provisions on ownership found in the Civil Code shall apply. 3 (Emphasis
supplied.)

In addressing specifically the issue regarding the disposition of the family dwelling, the trial
court said:

Considering that this Court has already declared the marriage between petitioner and
respondent as null and void ab initio, pursuant to Art. 147, the property regime of
petitioner and respondent shall be governed by the rules on ownership.

The provisions of Articles 102 and 129 of the Family Code finds no application since
Article 102 refers to the procedure for the liquidation of the conjugal partnership
property and Article 129 refers to the procedure for the liquidation of the absolute
community of property. 4

Petitioner moved for a reconsideration of the order. The motion was denied on 30 October 1995.

In his recourse to this Court, petitioner submits that Articles 50, 51 and 52 of the Family Code
should be held controlling: he argues that:

Article 147 of the Family Code does not apply to cases where the parties are
psychologically incapacitated.

II

Articles 50, 51 and 52 in relation to Articles 102 and 129 of the Family Code govern the
disposition of the family dwelling in cases where a marriage is declared void ab initio,
including a marriage declared void by reason of the psychological incapacity of the
spouses.
 III

Assuming arguendo that Article 147 applies to marriages declared void ab initio on the
ground of the psychological incapacity of a spouse, the same may be read consistently
with Article 129.

IV

It is necessary to determine the parent with whom majority of the children wish to stay. 5

The trial court correctly applied the law. In a void marriage, regardless of the cause thereof, the
property relations of the parties during the period of cohabitation is governed by the provisions
of Article 147 or Article 148, such as the case may be, of the Family Code. Article 147 is a
remake of Article 144 of the Civil Code as interpreted and so applied in previous cases; 6 it
provides:

Art. 147. When a man and a woman who are capacitated to marry each other, live
exclusively with each other as husband and wife without the benefit of marriage or under
a void marriage, their wages and salaries shall be owned by them in equal shares and the
property acquired by both of them through their work or industry shall be governed by
the rules on co-ownership.

In the absence of proof to the contrary, properties acquired while they lived together shall
be presumed to have been obtained by their joint efforts, work or industry, and shall be
owned by them in equal shares. For purposes of this Article, a party who did not
participate in the acquisition by the other party of any property shall be deemed to have
contributed jointly in the acquisition thereof in the former's efforts consisted in the care
and maintenance of the family and of the household.

Neither party can encumber or dispose by acts inter vivos of his or her share in the
property acquired during cohabitation and owned in common, without the consent of the
other, until after the termination of their cohabitation.

When only one of the parties to a void marriage is in good faith, the share of the party in
bad faith in the ownership shall be forfeited in favor of their common children. In case of
default of or waiver by any or all of the common children or their descendants, each
vacant share shall belong to the innocent party. In all cases, the forfeiture shall take place
upon the termination of the cohabitation.

This particular kind of co-ownership applies when a man and a woman, suffering no illegal
impediment to marry each other, so exclusively live together as husband and wife under a void
marriage or without the benefit of marriage. The term "capacitated" in the provision (in the first
paragraph of the law) refers to the legal capacity of a party to contract marriage, i.e., any "male
or female of the age of eighteen years or upwards not under any of the impediments mentioned
in Articles 37 and 38" 7 of the Code.
Under this property regime, property acquired by both spouses through their work and industry
shall be governed by the rules on equal co-ownership. Any property acquired during the union is
prima facie presumed to have been obtained through their joint efforts. A party who did not
participate in the acquisition of the property shall be considered as having contributed thereto
jointly if said party's "efforts consisted in the care and maintenance of the family household." 8
Unlike the conjugal partnership of gains, the fruits of the couple's separate property are not
included in the co-ownership.

Article 147 of the Family Code, in the substance and to the above extent, has clarified Article
144 of the Civil Code; in addition, the law now expressly provides that

(a) Neither party can dispose or encumber by act intervivos his or her share in co-ownership
property, without consent of the other, during the period of cohabitation; and

(b) In the case of a void marriage, any party in bad faith shall forfeit his or her share in the co-
ownership in favor of their common children; in default thereof or waiver by any or all of the
common children, each vacant share shall belong to the respective surviving descendants, or still
in default thereof, to the innocent party. The forfeiture shall take place upon the termination of
the cohabitation 9 or declaration of nullity of the marriage. 10

When the common-law spouses suffer from a legal impediment to marry or when they do not
live exclusively with each other (as husband and wife), only the property acquired by both of
them through their actual joint contribution of money, property or industry shall be owned in
common and in proportion to their respective contributions. Such contributions and
corresponding shares, however, are prima facie presumed to be equal. The share of any party
who is married to another shall accrue to the absolute community or conjugal partnership, as the
case may be, if so existing under a valid marriage. If the party who has acted in bad faith is not
validly married to another, his or her share shall be forfeited in the manner already heretofore
expressed. 11

In deciding to take further cognizance of the issue on the settlement of the parties' common
property, the trial court acted neither imprudently nor precipitately; a court which has jurisdiction
to declare the marriage a nullity must be deemed likewise clothed in authority to resolve
incidental and consequential matters. Nor did it commit a reversible error in ruling that petitioner
and private respondent own the "family home" and all their common property in equal shares, as
well as in concluding that, in the liquidation and partition of the property owned in common by
them, the provisions on co-ownership under the Civil Code, not Articles 50, 51 and 52, in
relation to Articles 102 and 129, 12 of the Family Code, should aptly prevail. The rules set up to
govern the liquidation of either the absolute community or the conjugal partnership of gains, the
property regimes recognized for valid and voidable marriages (in the latter case until the contract
is annulled), are irrelevant to the liquidation of the co-ownership that exists between common-
law spouses. The first paragraph of Articles 50 of the Family Code, applying paragraphs (2), (3),
(4) and 95) of Article 43, 13 relates only, by its explicit terms, to voidable marriages and,
exceptionally, to void marriages under Article 40 14 of the Code, i.e., the declaration of nullity of
a subsequent marriage contracted by a spouse of a prior void marriage before the latter is
judicially declared void. The latter is a special rule that somehow recognizes the philosophy and
an old doctrine that void marriages are inexistent from the very beginning and no judicial decree
is necessary to establish their nullity. In now requiring for purposes of remarriage, the
declaration of nullity by final judgment of the previously contracted void marriage, the present
law aims to do away with any continuing uncertainty on the status of the second marriage. It is
not then illogical for the provisions of Article 43, in relation to Articles 41 15 and 42, 16 of the
Family Code, on the effects of the termination of a subsequent marriage contracted during the
subsistence of a previous marriage to be made applicable pro hac vice. In all other cases, it is not
to be assumed that the law has also meant to have coincident property relations, on the one hand,
between spouses in valid and voidable marriages (before annulment) and, on the other, between
common-law spouses or spouses of void marriages, leaving to ordain, on the latter case, the
ordinary rules on co-ownership subject to the provisions of the Family Code on the "family
home," i.e., the provisions found in Title V, Chapter 2, of the Family Code, remain in force and
effect regardless of the property regime of the spouses.

WHEREFORE, the questioned orders, dated 05 May 1995 and 30 October 1995, of the trial
court are AFFIRMED. No costs.

Padilla, Kapunan and Hermosisima, Jr., JJ., concur.

Bellosillo, J., is on leave.

Footnotes

1 Hon. Perlita Tria Tirona, presiding.

2 Rollo, p. 22.

3 Rollo, p. 42.

4 Rollo, pp. 38-39.

5 Rollo, pp. 24-25.

6 See Margaret Maxey vs Court of Appeals, 129 SCRA 187; Aznar, et al.vs. Garcia, et al.,
102 Phil. 1055.

7 Art. 5. Any male or female of the age of eighteen years or upwards not under any of the
impediments mentioned in Articles 37 and 38, may contract marriage.

Art. 37. Marriages between the following are Incestuous and void from the beginning,
whether the relationship between the parties be legitimate or illegitimate:

(1) Between ascendants and descendants of any degree; and

(2) Between brothers and sisters, whether of the full-or half-blood.

Art. 38. The following marriages shall be void from the beginning for reasons of
public policy:

(1) Between collateral blood relatives; whether legitimate or illegitimate,

up to the fourth civil degree;

(2) Between step-parents and stepchildren;

(3) Between parents-in-law and children-in-law;

(4) Between adopting parent and the adopted child;

(5) Between the surviving spouse of the adopting parent and the adopted
child;

(6) Between the surviving spouse of the adopted child and the adopter;

(7) Between an adopted child and a legitimate child of the adopter;

(8) Between adopted children of the same adopter; and

(9) Between parties where one, with the intention to marry the other, killed
that other person's spouse or his or her own spouse.

8 Article 147, Family Code.

9 Article 147, Family Code.

10 Articles 43, 50 and 51, Family Code.

11 Article 148, Family Code.

12 Art. 50. The effects provided for in paragraphs (2), (3), (4) and (5) of Article
43 and in Article 44 shall also apply in proper cases to marriages which are
declared void ab initio or annulled by final judgment under Articles 40 and 45.

The final judgment in such cases shall provide for the liquidation, partition and
distribution of the propitious of the spouses, the custody and support of the
common children. and the delivery of their presumptive legitimes, unless such
matters had been adjudicated in the previous judicial proceedings.

All creditors of the spouses as well as of the absolute community or the conjugal
partnership shall be notified of the proceedings for liquidation.

In the partition, the conjugal dwelling and the lot on which it is situated, shall be
adjudicated in accordance with the provisions of Articles 102 and 129.
 Art 51. In said partition, the value of the presumptive legitimes of all common
children, computed as of the date of the final judgment of the trial court, shall be
delivered In cash, property or sound securities, unless the parties, by mutual
agreement judicially approved, had already provided for such matters.

The children of their guardian, or the trustee of their property, may ask for the
enforcement of the judgment.

The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the
ultimate successional rights of the children accruing upon the death of either or both of
the parents; but the value of the properties already received under the decree of
annulment or absolute nullity shall be considered as advances on their legitime.

Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition
and distribution of the properties of the spouses, and the delivery of the children's
presumptive legitimes shall be recorded in the appropriate civil registry and registries of
property; otherwise, the same shall not affect the third persons.

Art. 102. Upon dissolution of the absolute community regime, the following procedure
shall apply:

(1) An inventory shall be prepared; listing separately all the properties of

the absolute community and the exclusive properties of each spouse.

(2) The debts and obligations of the absolute community shall be paid out
of its assets. In case of insufficiency of the said assets, the spouses shall be
solidarily liable for the unpaid balance with their separate properties in
accordance with the provisions of the second paragraph of Article 94.

(3) Whatever remains of the exclusive properties of the spouses shall be

thereafter be delivered to each of them.

(4) The net remainder of the properties of the absolute community shall
constitute its net assets, which shall be divided equally between husband
and wife, unless a different proportion or division was agreed upon in the
marriage settlements, or unless there has been a voluntary waiver of such
shares provided in this Code. For purposes of computing the net profits
subject to forfeiture in accordance with Articles 43, No. (2) and 63, No.
(2), the said profits shall be the increase in value between the market value
of the community property at the time of the celebration of the marriage
and the market value at the time of its dissolution.

(5) The Presumptive legitimes of the common children shall be delivered

upon partition, in accordance with Article 51.
 (6) Unless otherwise agreed upon the parties, in the partition of the
properties, the conjugal dwelling and the lot on which it is situated shall be
adjudicated the the spouse with whom the majority of the common
children choose to remain. Children below the age of seven years are
deemed to have chosen the mother, unless the court has decided otherwise.
In case there is no such majority, the court shall decide, taking into
consideration the best interests of the said children.

Art. 129. Upon the dissolution of the conjugal partnership regime, the following
procedure shall apply:

(1) An inventory shall be prepared, listing separately all the properties of

the conjugal partnership and the exclusive properties of each spouse.

(2) Amounts advanced by the conjugal partnership in payment of personal

debts and obligations of either spouse shall be credited to the conjugal
partnership as an asset thereof.

(3) Each spouse shall be reimbursed for the use of his or her exclusive
funds in the acquisition of property or for the value of his or her exclusive
property, the ownership of which has been vested by law in the conjugal
partnership.

(4) The debts and obligations of the conjugal partnership shall be paid out
of the conjugal assets. In the case of insufficiency of the said assets, the
spouses shall be solidarily liable for the unpaid balance with their separate
properties , in accordance with the provisions of paragraph (2) of Article
121.

(5) Whatever remains of the exclusive properties of the spouses shall

thereafter be delivered to each of them.

(6) Unless the owner has been indemnified from whatever source, the loss
or deterioration of movables used for the benefit of the family, belonging
to either spouse, even due to fortuitous event, shall be paid to said spouse
from the conjugal funds, if any.

(7) The net remainder of the conjugal partnership properties shall

constitute the profits, which shall be divided equally between husband and
wife, unless a different proportion or division was agreed upon in the
marriage settlements or unless there has been a voluntary waiver or
forfeiture of such share as provided in this Code.

(8) The presumptive legitimes of the common children shall be delivered

upon partition in accordance with Article 51.
 (9) In the partition of the properties, the conjugal dwelling and the lot on
which it is situated shall, unless otherwise agreed upon by the parties, be
adjudicated to the spouse with whom the majority of the common children
choose to remain. Children below the age of seven years are deemed to
have chosen the mother, unless the court has decided otherwise. In case
there is no such majority, the court shall decide, taking into consideration
the best interests of the said children.

13 Art 43. The termination of the subsequent marriage referred to in the preceding Article
shall produce the following effects:

(1) The children of subsequent marriage concieved prior to its termination

shall be considered legitimate, and their custody and support in case of
dispute shall be decided by the court in a proper proceeding;

(2) The absolute community of property or the conjugal partnership, as the

case may be, shall be dissolved and liquidated, but if either spouse
contracted said marriage in bad faith, his or her share of the net profits of
the community property or conjugal partnership property shall be forfeited
in favor of the common children or, if there are none, the children of the
guilty spouse by a previous marriage or, in default of children, the
incorrect spouse.

(3) Donations by reasons of marriage shall remain valid, except that if the
donee contracted the marriage in bad faith, such donations made to said
donee are revoked by operation of law;

(4) The innocent spouse my revoke the designation of the other spouse
who acted as a beneficiary in any insurance policy, even if such
designation be stipulated as irrevocable; and

(5) The spouse who contracted the subsequent marriage in bad faith shall
be disqualified in inherit from the innocent spouse by testate and intestate
succession.

14 Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment declaring such previous marriage void.

15 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-rounded belief that the absent spouse was already dead. In case of disappearance
where there is danger of death under the circumstances set forth in the provisions of
Article 391 of the Civil Code, an absence of only two years shall be sufficient.
 For the purpose of contracting the subsequent marriage under the preceding paragraph,
the spouse present must institute a summary proceeding as provided in this Code for the
declaration of presumptive death of the absentee, without prejudice to the effect or
reappearance of the absent spouse.

16 Art. 42. The subsequent marriage referred to in the preceding Article shall be
automatically terminated by the recording of the affidavit of reappearance of the absent
spouse, unless there is 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 the due notice to the spouses of the subsequent marriage and
without prejudice to the fact of reappearance being judicially determined in such case
such fact is disputed.

FIRST DIVISION

G.R. No. 132529. February 2, 2001

SUSAN NICDAO CARIO, petitioner,

vs.
SUSAN YEE CARIO, respondent.

DECISION

YNARES-SANTIAGO, J.:

The issue for resolution in the case at bar hinges on the validity of the two marriages contracted
by the deceased SPO4 Santiago S. Cario, whose death benefits is now the subject of the
controversy between the two Susans whom he married. 1wphi1.nt

Before this Court is a petition for review on certiorari seeking to set aside the decision 1 of the
Court of Appeals in CA-G.R. CV No. 51263, which affirmed in toto the decision 2 of the
Regional Trial Court of Quezon City, Branch 87, in Civil Case No. Q-93-18632.

During the lifetime of the late SPO4 Santiago S. Cario, he contracted two marriages, the first
was on June 20, 1969, with petitioner Susan Nicdao Cario (hereafter referred to as Susan
Nicdao), with whom he had two offsprings, namely, Sahlee and Sandee Cario; and the second
was on November 10, 1992, with respondent Susan Yee Cario (hereafter referred to as Susan
Yee), with whom he had no children in their almost ten year cohabitation starting way back in
1982.

In 1988, SPO4 Santiago S. Cario became ill and bedridden due to diabetes complicated by
pulmonary tuberculosis. He passed away on November 23, 1992, under the care of Susan Yee,
who spent for his medical and burial expenses. Both petitioner and respondent filed claims for
monetary benefits and financial assistance pertaining to the deceased from various government
agencies. Petitioner Susan Nicdao was able to collect a total of P146,000.00 from MBAI,
PCCUI, Commutation, NAPOLCOM, [and] Pag-ibig, 3 while respondent Susan Yee received a
total of P21,000.00 from GSIS Life, Burial (GSIS) and burial (SSS). 4

On December 14, 1993, respondent Susan Yee filed the instant case for collection of sum of
money against petitioner Susan Nicdao praying, inter alia, that petitioner be ordered to return to
her at least one-half of the one hundred forty-six thousand pesos (P146,000.00) collectively
denominated as death benefits which she (petitioner) received from MBAI, PCCUI,
Commutation, NAPOLCOM, [and] Pag-ibig. Despite service of summons, petitioner failed to
file her answer, prompting the trial court to declare her in default.

Respondent Susan Yee admitted that her marriage to the deceased took place during the
subsistence of, and without first obtaining a judicial declaration of nullity of, the marriage
between petitioner and the deceased. She, however, claimed that she had no knowledge of the
previous marriage and that she became aware of it only at the funeral of the deceased, where she
met petitioner who introduced herself as the wife of the deceased. To bolster her action for
collection of sum of money, respondent contended that the marriage of petitioner and the
deceased is void ab initio because the same was solemnized without the required marriage
license. In support thereof, respondent presented: 1) the marriage certificate of the deceased and
the petitioner which bears no marriage license number; 5 and 2) a certification dated March 9,
1994, from the Local Civil Registrar of San Juan, Metro Manila, which reads

This is to certify that this Office has no record of marriage license of the spouses SANTIAGO
CARINO (sic) and SUSAN NICDAO, who are married in this municipality on June 20, 1969.
Hence, we cannot issue as requested a true copy or transcription of Marriage License number
from the records of this archives.

This certification is issued upon the request of Mrs. Susan Yee Cario for whatever legal
purpose it may serve. 6

On August 28, 1995, the trial court ruled in favor of respondent, Susan Yee, holding as follows:

WHEREFORE, the defendant is hereby ordered to pay the plaintiff the sum of P73,000.00, half
of the amount which was paid to her in the form of death benefits arising from the death of SPO4
Santiago S. Cario, plus attorneys fees in the amount of P5,000.00, and costs of suit.

IT IS SO ORDERED. 7

On appeal by petitioner to the Court of Appeals, the latter affirmed in toto the decision of the trial
court. Hence, the instant petition, contending that:

I.
 THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE
FINDINGS OF THE LOWER COURT THAT VDA. DE CONSUEGRA VS. GSIS IS
APPLICABLE TO THE CASE AT BAR.

II.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN APPLYING

EQUITY IN THE INSTANT CASE INSTEAD OF THE CLEAR AND
UNEQUIVOCAL MANDATE OF THE FAMILY CODE.

III.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT FINDING

THE CASE OF VDA. DE CONSUEGRA VS GSIS TO HAVE BEEN MODIFIED,
AMENDED AND EVEN ABANDONED BY THE ENACTMENT OF THE FAMILY
CODE. 8

Under Article 40 of the Family Code, the absolute nullity of a previous marriage may be invoked
for purposes of remarriage on the basis solely of a final judgment declaring such previous
marriage void. Meaning, where the absolute nullity of a previous marriage is sought to be
invoked for purposes of contracting a second marriage, the sole basis acceptable in law, for said
projected marriage to be free from legal infirmity, is a final judgment declaring the previous
marriage void. 9 However, for purposes other than remarriage, no judicial action is necessary to
declare a marriage an absolute nullity. For other purposes, such as but not limited to the
determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution
of property regime, or a criminal case for that matter, the court may pass upon the validity of
marriage even after the death of the parties thereto, and even in a suit not directly instituted to
question the validity of said marriage, so long as it is essential to the determination of the case. 10
In such instances, evidence must be adduced, testimonial or documentary, to prove the existence
of grounds rendering such a previous marriage an absolute nullity. These need not be limited
solely to an earlier final judgment of a court declaring such previous marriage void. 11

It is clear therefore that the Court is clothed with sufficient authority to pass upon the validity of
the two marriages in this case, as the same is essential to the determination of who is rightfully
entitled to the subject death benefits of the deceased.

Under the Civil Code, which was the law in force when the marriage of petitioner Susan Nicdao
and the deceased was solemnized in 1969, a valid marriage license is a requisite of marriage, 12
and the absence thereof, subject to certain exceptions, 13 renders the marriage void ab initio. 14

In the case at bar, there is no question that the marriage of petitioner and the deceased does not
fall within the marriages exempt from the license requirement. A marriage license, therefore, was
indispensable to the validity of their marriage. This notwithstanding, the records reveal that the
marriage contract of petitioner and the deceased bears no marriage license number and, as
certified by the Local Civil Registrar of San Juan, Metro Manila, their office has no record of
such marriage license. In Republic v. Court of Appeals, 15 the Court held that such a certification
is adequate to prove the non-issuance of a marriage license. Absent any circumstance of
suspicion, as in the present case, the certification issued by the local civil registrar enjoys
probative value, he being the officer charged under the law to keep a record of all data relative to
the issuance of a marriage license.

Such being the case, the presumed validity of the marriage of petitioner and the deceased has
been sufficiently overcome. It then became the burden of petitioner to prove that their marriage
is valid and that they secured the required marriage license. Although she was declared in default
before the trial court, petitioner could have squarely met the issue and explained the absence of a
marriage license in her pleadings before the Court of Appeals and this Court. But petitioner
conveniently avoided the issue and chose to refrain from pursuing an argument that will put her
case in jeopardy. Hence, the presumed validity of their marriage cannot stand.

It is beyond cavil, therefore, that the marriage between petitioner Susan Nicdao and the
deceased, having been solemnized without the necessary marriage license, and not being one of
the marriages exempt from the marriage license requirement, is undoubtedly void ab initio.

It does not follow from the foregoing disquisition, however, that since the marriage of petitioner
and the deceased is declared void ab initio, the death benefits under scrutiny would now be
awarded to respondent Susan Yee. To reiterate, under Article 40 of the Family Code, for purposes
of remarriage, there must first be a prior judicial declaration of the nullity of a previous marriage,
though void, before a party can enter into a second marriage, otherwise, the second marriage
would also be void.

Accordingly, the declaration in the instant case of nullity of the previous marriage of the
deceased and petitioner Susan Nicdao does not validate the second marriage of the deceased with
respondent Susan Yee. The fact remains that their marriage was solemnized without first
obtaining a judicial decree declaring the marriage of petitioner Susan Nicdao and the deceased
void. Hence, the marriage of respondent Susan Yee and the deceased is, likewise, void ab initio.

One of the effects of the declaration of nullity of marriage is the separation of the property of the
spouses according to the applicable property regime. 16 Considering that the two marriages are
void ab initio, the applicable property regime would not be absolute community or conjugal
partnership of property, but rather, be governed by the provisions of Articles 147 and 148 of the
Family Code on Property Regime of Unions Without Marriage.

Under Article 148 of the Family Code, which refers to the property regime of bigamous
marriages, adulterous relationships, relationships in a state of concubine, relationships where
both man and woman are married to other persons, multiple alliances of the same married man, 17
-

... [O]nly the properties acquired by both of the parties through their actual joint contribution
of money, property, or industry shall be owned by them in common in proportion to their
respective contributions ...
In this property regime, the properties acquired by the parties through their actual joint
contribution shall belong to the co-ownership. Wages and salaries earned by each party belong
to him or her exclusively. Then too, contributions in the form of care of the home, children and
household, or spiritual or moral inspiration, are excluded in this regime. 18

Considering that the marriage of respondent Susan Yee and the deceased is a bigamous marriage,
having been solemnized during the subsistence of a previous marriage then presumed to be valid
(between petitioner and the deceased), the application of Article 148 is therefore in order.

The disputed P146,000.00 from MBAI [AFP Mutual Benefit Association, Inc.], NAPOLCOM,
Commutation, Pag-ibig, and PCCUI, are clearly renumerations, incentives and benefits from
governmental agencies earned by the deceased as a police officer. Unless respondent Susan Yee
presents proof to the contrary, it could not be said that she contributed money, property or
industry in the acquisition of these monetary benefits. Hence, they are not owned in common by
respondent and the deceased, but belong to the deceased alone and respondent has no right
whatsoever to claim the same. By intestate succession, the said death benefits of the deceased
shall pass to his legal heirs. And, respondent, not being the legal wife of the deceased is not one
of them.

As to the property regime of petitioner Susan Nicdao and the deceased, Article 147 of the Family
Code governs. This article applies to unions of parties who are legally capacitated and not barred
by any impediment to contract marriage, but whose marriage is nonetheless void for other
reasons, like the absence of a marriage license. Article 147 of the Family Code reads -

Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively
with each other as husband and wife without the benefit of marriage or under a void marriage,
their wages and salaries shall be owned by them in equal shares and the property acquired by
both of them through their work or industry shall be governed by the rules on co-ownership.

In the absence of proof to the contrary, properties acquired while they lived together shall be
presumed to have been obtained by their joint efforts, work or industry, and shall be owned by
them in equal shares. For purposes of this Article, a party who did not participate in the
acquisition by the other party of any property shall be deemed to have contributed jointly in the
acquisition thereof if the formers efforts consisted in the care and maintenance of the family and
of the household.

xxx

When only one of the parties to a void marriage is in good faith, the share of the party in bad
faith in the co-ownership shall be forfeited in favor of their common children. In case of default
of or waiver by any or all of the common children or their descendants, each vacant share shall
belong to the respective surviving descendants. In the absence of descendants, such share shall
belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the
cohabitation.
In contrast to Article 148, under the foregoing article, wages and salaries earned by either party
during the cohabitation shall be owned by the parties in equal shares and will be divided equally
between them, even if only one party earned the wages and the other did not contribute thereto. 19
Conformably, even if the disputed death benefits were earned by the deceased alone as a
government employee, Article 147 creates a co-ownership in respect thereto, entitling the
petitioner to share one-half thereof. As there is no allegation of bad faith in the present case, both
parties of the first marriage are presumed to be in good faith. Thus, one-half of the subject death
benefits under scrutiny shall go to the petitioner as her share in the property regime, and the
other half pertaining to the deceased shall pass by, intestate succession, to his legal heirs, namely,
his children with Susan Nicdao.

In affirming the decision of the trial court, the Court of Appeals relied on the case of Vda. de
Consuegra v. Government Service Insurance System, 20 where the Court awarded one-half of the
retirement benefits of the deceased to the first wife and the other half, to the second wife, holding
that:

... [S]ince the defendants first marriage has not been dissolved or declared void the conjugal
partnership established by that marriage has not ceased. Nor has the first wife lost or
relinquished her status as putative heir of her husband under the new Civil Code, entitled to
share in his estate upon his death should she survive him. Consequently, whether as conjugal
partner in a still subsisting marriage or as such putative heir she has an interest in the husbands
share in the property here in dispute.... And with respect to the right of the second wife, this
Court observed that although the second marriage can be presumed to be void ab initio as it was
celebrated while the first marriage was still subsisting, still there is need for judicial declaration
of such nullity. And inasmuch as the conjugal partnership formed by the second marriage was
dissolved before judicial declaration of its nullity, [t]he only just and equitable solution in this
case would be to recognize the right of the second wife to her share of one-half in the property
acquired by her and her husband, and consider the other half as pertaining to the conjugal
partnership of the first marriage. 21

It should be stressed, however, that the aforecited decision is premised on the rule which requires
a prior and separate judicial declaration of nullity of marriage. This is the reason why in the said
case, the Court determined the rights of the parties in accordance with their existing property
regime.

In Domingo v. Court of Appeals, 22 however, the Court, construing Article 40 of the Family Code,
clarified that a prior and separate declaration of nullity of a marriage is an all important condition
precedent only for purposes of remarriage. That is, if a party who is previously married wishes to
contract a second marriage, he or she has to obtain first a judicial decree declaring the first
marriage void, before he or she could contract said second marriage, otherwise the second
marriage would be void. The same rule applies even if the first marriage is patently void because
the parties are not free to determine for themselves the validity or invalidity or their marriage.
However, for purposes other than to remarry, like for filing a case for collection of sum of money
anchored on a marriage claimed to be valid, no prior and separate judicial declaration of nullity
is necessary. All that a party has to do is to present evidence, testimonial or documentary, that
would prove that the marriage from which his or her rights flow is in fact valid. Thereupon, the
court, if material to the determination of the issues before it, will rule on the status of the
marriage involved and proceed to determine the rights of the parties in accordance with the
applicable laws and jurisprudence. Thus, in Nial v. Bayadog, 23 the Court explained:

[T]he court may pass upon the validity of marriage even in a suit not directly instituted to
question the same so long as it is essential to the determination of the case. This is without
prejudice to any issue that may arise in the case. When such need arises, a final judgment of
declaration of nullity is necessary even if the purpose is other than to remarry. The clause on
the basis of a final judgment declaring such previous marriage void in Article 40 of the Family
Code connoted that such final judgment need not be obtained only for purpose of remarriage.

WHEREFORE, the petition is GRANTED, and the decision of the Court of Appeals in CA-G.R.
CV No. 51263 which affirmed the decision of the Regional Trial Court of Quezon City ordering
petitioner to pay respondent the sum of P73,000.00 plus attorneys fees in the amount of
P5,000.00, is REVERSED and SET ASIDE. The complaint in Civil Case No. Q-93-18632, is
hereby DISMISSED. No pronouncement as to costs.1wphi1.nt

SO ORDERED.

SECOND DIVISION

LUPO ATIENZA, G.R. No. 169698

Petitioner,

Present:

PUNO, J., Chairperson,

SANDOVAL-GUTIERREZ,

CORONA,

- versus - AZCUNA, and

GARCIA, JJ.
 Promulgated:

YOLANDA DE CASTRO, November 29, 2006

Respondent.

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

DECISION

GARCIA, J.:

Assailed and sought to be set aside in this petition for review on certiorari is the Decision
dated April 29, 2005 of the Court of Appeals (CA) in CA-G.R. CV No. 69797, as reiterated in its
Resolution of September 16, 2005, reversing an earlier decision of the Regional Trial Court
(RTC) of Makati City, Branch 61, in an action for Judicial Partition of Real Property thereat
commenced by the herein petitioner Lupo Atienza against respondent Yolanda de Castro.
The facts:

Sometime in 1983, petitioner Lupo Atienza, then the President and General Manager of
Enrico Shipping Corporation and Eurasian Maritime Corporation, hired the services of
respondent Yolanda U. De Castro as accountant for the two corporations.

In the course of time, the relationship between Lupo and Yolanda became intimate.
Despite Lupo being a married man, he and Yolanda eventually lived together in consortium
beginning the later part of 1983. Out of their union, two children were born. However, after the
birth of their second child, their relationship turned sour until they parted ways.

On May 28, 1992, Lupo filed in the RTC of Makati City a complaint against Yolanda for
the judicial partition between them of a parcel of land with improvements located in Bel-Air
Subdivision, Makati City and covered by Transfer Certificate of Title No. 147828 of the Registry
of Deeds of Makati City. In his complaint, docketed in said court as Civil Case No. 92-1423,
Lupo alleged that the subject property was acquired during his union with Yolanda as common-
law husband and wife, hence the property is co-owned by them.

Elaborating, Lupo averred in his complaint that the property in question was acquired by
Yolanda sometime in 1987 using his exclusive funds and that the title thereto was transferred by
the seller in Yolandas name without his knowledge and consent. He did not interpose any
objection thereto because at the time, their affair was still thriving. It was only after their
separation and his receipt of information that Yolanda allowed her new live-in partner to live in
the disputed property, when he demanded his share thereat as a co-owner.
In her answer, Yolanda denied Lupos allegations. According to her, she acquired the same
property for Two Million Six Hundred Thousand Pesos (P2,600,000.00) using her exclusive
funds. She insisted having bought it thru her own savings and earnings as a businesswoman.
 In a decision dated December 11, 2000, the trial court rendered judgment for Lupo by
declaring the contested property as owned in common by him and Yolanda and ordering its
partition between the two in equal shares, thus:

WHEREFORE, judgment is hereby rendered declaring the property covered by Transfer

Certificate of Title No. 147828 of the Registry of Deeds of Makati City to be owned in common
by plaintiff LUPO ATIENZA and the defendant YOLANDA U. DE CASTRO share-and-share
alike and ordering the partition of said property between them. Upon the finality of this
Decision, the parties are hereby directed to submit for the confirmation of the Court a mutually
agreed project of partition of said property or, in case the physical partition of said property is
not feasible because of its nature, that either the same be assigned to one of the parties who shall
pay the value corresponding to the share of the other or that the property to be sold and the
proceeds thereof be divided equally between the parties after deducting the expenses incident to
said sale.

The parties shall bear their own attorneys fees and expenses of litigation.

Costs against the defendant.

SO ORDERED.

From the decision of the trial court, Yolanda went on appeal to the CA in CA-G.R. CV
No. 69797, therein arguing that the evidence on record preponderate that she purchased the
disputed property in her own name with her own money. She maintained that the documents
appertaining to her acquisition thereof are the best evidence to prove who actually bought it, and
refuted the findings of the trial court, as well as Lupos assertions casting doubt as to her
financial capacity to acquire the disputed property.
 As stated at the threshold hereof, the appellate court, in its decision of April 29, 2005,
reversed and set aside that of the trial court and adjudged the litigated property as exclusively
owned by Yolanda, to wit:

WHEREFORE, the foregoing considered, the assailed decision is hereby

REVERSED and SET ASIDE . The subject property is hereby declared to be
exclusively owned by defendant-appellant Yolanda U. De Castro. No costs.

SO ORDERED.

In decreeing the disputed property as exclusively owned by Yolanda, the CA ruled that
under the provisions of Article 148 of the Family Code vis--vis the evidence on record and
attending circumstances, Yolandas claim of sole ownership is meritorious, as it has been
substantiated by competent evidence. To the CA, Lupo failed to overcome the burden of proving
his allegation that the subject property was purchased by Yolanda thru his exclusive funds.

With his motion for reconsideration having been denied by the CA in its Resolution of
September 16, 2005, Lupo is now with this Court via the present recourse arguing that pursuant
to Article 144 of the Civil Code, he was in no way burdened to prove that he contributed to the
acquisition of the subject property because with or without the contribution by either partner, he
is deemed a co-owner thereof, adding that under Article 484 of Civil Code, as long as the
property was acquired by either or both of them during their extramarital union, such property
would be legally owned by them in common and governed by the rules on co-ownership, which
apply in default of contracts, or special provisions.
 We DENY.

It is not disputed that the parties herein were not capacitated to marry each other because
petitioner Lupo Atienza was validly married to another woman at the time of his cohabitation
with the respondent. Their property regime, therefore, is governed by Article 148 of the Family
Code, which applies to bigamous marriages, adulterous relationships, relationships in a state of
concubinage, relationships where both man and woman are married to other persons, and
multiple alliances of the same married man. Under this regime, only the properties acquired
by both of the parties through their actual joint contribution of money, property, or industry shall
be owned by them in common in proportion to their respective contributions ... Proof of actual
contribution is required.

As it is, the regime of limited co-ownership of property governing the union of parties who
are not legally capacitated to marry each other, but who nonetheless live together as husband and
wife, applies to properties acquired during said cohabitation in proportion to their respective
contributions. Co-ownership will only be up to the extent of the proven actual contribution of
money, property or industry. Absent proof of the extent thereof, their contributions and
corresponding shares shall be presumed to be equal.

Here, although the adulterous cohabitation of the parties commenced in 1983, or way
before the effectivity of the Family Code on August 3, 1998, Article 148 thereof applies because
this provision was intended precisely to fill up the hiatus in Article 144 of the Civil Code.
Before Article 148 of the Family Code was enacted, there was no provision governing property
relations of couples living in a state of adultery or concubinage. Hence, even if the cohabitation
or the acquisition of the property occurred before the Family Code took effect, Article 148
governs.
 The applicable law being settled, we now remind the petitioner that here, as in other civil
cases, the burden of proof rests upon the party who, as determined by the pleadings or the nature
of the case, asserts an affirmative issue. Contentions must be proved by competent evidence and
reliance must be had on the strength of the partys own evidence and not upon the weakness of
the opponents defense. The petitioner as plaintiff below is not automatically entitled to the relief
prayed for. The law gives the defendant some measure of protection as the plaintiff must still
prove the allegations in the complaint. Favorable relief can be granted only after the court is
convinced that the facts proven by the plaintiff warrant such relief. Indeed, the party alleging a
fact has the burden of proving it and a mere allegation is not evidence.

It is the petitioners posture that the respondent, having no financial capacity to acquire the
property in question, merely manipulated the dollar bank accounts of his two (2) corporations to
raise the amount needed therefor. Unfortunately for petitioner, his submissions are burdened by
the fact that his claim to the property contradicts duly written instruments, i.e., the Contract to
Sell dated March 24, 1987, the Deed of Assignment of Redemption dated March 27, 1987 and
the Deed of Transfer dated April 27, 1987, all entered into by and between the respondent and
the vendor of said property, to the exclusion of the petitioner. As aptly pointed out by the CA:

Contrary to the disquisition of the trial court, [Lupo] failed to overcome this
burden. Perusing the records of the case, it is evident that the trial court
committed errors of judgment in its findings of fact and appreciation of evidence
with regard to the source of the funds used for the purchase of the disputed
property and ultimately the rightful owner thereof. Factual findings of the trial
court are indeed entitled to respect and shall not be disturbed, unless some facts or
circumstances of weight and substance have been overlooked or misinterpreted
that would otherwise materially affect the disposition of the case.

In making proof of his case, it is paramount that the best and most
complete evidence be formally entered. Rather than presenting proof of his actual
contribution to the purchase money used as consideration for the disputed
 property, [Lupo] diverted the burden imposed upon him to [Yolanda] by painting
her as a shrewd and scheming woman without the capacity to purchase any
property. Instead of proving his ownership, or the extent thereof, over the subject
property, [Lupo] relegated his complaint to a mere attack on the financial capacity
of [Yolanda]. He presented documents pertaining to the ins and outs of the dollar
accounts of ENRICO and EURASIAN, which unfortunately failed to prove his
actual contribution in the purchase of the said property. The fact that [Yolanda]
had a limited access to the funds of the said corporations and had repeatedly
withdrawn money from their bank accounts for their behalf do not prove that the
money she used in buying the disputed property, or any property for that matter,
came from said withdrawals.

As it is, the disquisition of the court a quo heavily rested on the apparent
financial capacity of the parties. On one side, there is [Lupo], a retired sea captain
and the President and General Manager of two corporations and on the other is
[Yolanda], a Certified Public Accountant. Surmising that [Lupo] is financially
well heeled than [Yolanda], the court a quo concluded, sans evidence, that
[Yolanda] had taken advantage of [Lupo]. Clearly, the court a quo is in error.
(Words in brackets supplied.)

As we see it, petitioners claim of co-ownership in the disputed property is without basis
because not only did he fail to substantiate his alleged contribution in the purchase thereof but
likewise the very trail of documents pertaining to its purchase as evidentiary proof redounds to
the benefit of the respondent. In contrast, aside from his mere say so and voluminous records of
bank accounts, which sadly find no relevance in this case, the petitioner failed to overcome his
burden of proof. Allegations must be proven by sufficient evidence. Simply stated, he who
alleges a fact has the burden of proving it; mere allegation is not evidence.

True, the mere issuance of a certificate of title in the name of any person does not
foreclose the possibility that the real property covered thereby may be under co-ownership with
persons not named in the certificate or that the registrant may only be a trustee or that other
parties may have acquired interest subsequent to the issuance of the certificate of title. However,
as already stated, petitioners evidence in support of his claim is either insufficient or immaterial
to warrant the trial courts finding that the disputed property falls under the purview of Article
148 of the Family Code. In contrast to petitioners dismal failure to prove his cause, herein
respondent was able to present preponderant evidence of her sole ownership. There can clearly
be no co-ownership when, as here, the respondent sufficiently established that she derived the
funds used to purchase the property from her earnings, not only as an accountant but also as a
businesswoman engaged in foreign currency trading, money lending and jewelry retail. She
presented her clientele and the promissory notes evincing substantial dealings with her clients.
She also presented her bank account statements and bank transactions, which reflect that she had
the financial capacity to pay the purchase price of the subject property.

All told, the Court finds and so holds that the CA committed no reversible error in
rendering the herein challenged decision and resolution.

WHEREFORE, the instant petition is DENIED and the assailed issuances of the CA are
AFFIRMED.

Costs against the petitioner.

G.R. No. L-28394 November 26, 1970

PEDRO GAYON, plaintiff-appellant, vs. SILVESTRE GAYON and GENOVEVA DE

GAYON, defendants-appellees.

CONCEPCION, C.J.:

Appeal, taken by plaintiff Pedro Gayon, from an order of the Court of First Instance of Iloilo
dismissing his complaint in Civil Case No. 7334 thereof.chanroblesvirtualawlibrary chanrobles
virtual law library
The records show that on July 31, 1967, Pedro Gayon filed said complaint against the spouses
Silvestre Gayon and Genoveva de Gayon, alleging substantially that, on October 1, 1952, said
spouses executed a deed - copy of which was attached to the complaint, as Annex "A" - whereby
they sold to Pedro Gelera, for the sum of P500.00, a parcel of unregistered land therein
described, and located in the barrio of Cabubugan, municipality of Guimbal, province of Iloilo,
including the improvements thereon, subject to redemption within five (5) years or not later than
October 1, 1957; that said right of redemption had not been exercised by Silvestre Gayon,
Genoveva de Gayon, or any of their heirs or successors, despite the expiration of the period
therefor; that said Pedro Gelera and his wife Estelita Damaso had, by virtue of a deed of sale -
copy of which was attached to the complaint, as Annex "B" - dated March 21, 1961, sold the
aforementioned land to plaintiff Pedro Gayon for the sum of P614.00; that plaintiff had, since
1961, introduced thereon improvements worth P1,000; that he had, moreover, fully paid the taxes
on said property up to 1967; and that Articles 1606 and 1616 of our Civil Code require a judicial
decree for the consolidation of the title in and to a land acquired through a conditional sale, and,
accordingly, praying that an order be issued in plaintiff's favor for the consolidation of ownership
in and to the aforementioned property.chanroblesvirtualawlibrary chanrobles virtual law library

In her answer to the complaint, Mrs. Gayon alleged that her husband, Silvestre Gayon, died on
January 6, 1954, long before the institution of this case; that Annex "A" to the complaint is
fictitious, for the signature thereon purporting to be her signature is not hers; that neither she nor
her deceased husband had ever executed "any document of whatever nature in plaintiff's favor";
that the complaint is malicious and had embarrassed her and her children; that the heirs of
Silvestre Gayon had to "employ the services of counsel for a fee of P500.00 and incurred
expenses of at least P200.00"; and that being a brother of the deceased Silvestre Gayon, plaintiff
"did not exert efforts for the amicable settlement of the case" before filing his complaint. She
prayed, therefore, that the same be dismissed and that plaintiff be sentenced to pay
damages.chanroblesvirtualawlibrary chanrobles virtual law library

Soon later, she filed a motion to dismiss, reproducing substantially the averments made in her
answer and stressing that, in view of the death of Silvestre Gayon, there is a "necessity of
amending the complaint to suit the genuine facts on record." Presently, or on September 16,
1967, the lower court issued the order appealed from, reading:

Considering the motion to dismiss and it appearing from Exhibit "A" annexed to the complaint
that Silvestre Gayon is the absolute owner of the land in question, and considering the fact that
Silvestre Gayon is now dead and his wife Genoveva de Gayon has nothing to do with the land
subject of plaintiff's complaint, as prayed for, this case is hereby dismissed, without
pronouncement as to costs. 1 chanrobles virtual law library

A reconsideration of this order having been denied, plaintiff interposed the present appeal, which
is well taken.chanroblesvirtualawlibrary chanrobles virtual law library

Said order is manifestly erroneous and must be set aside. To begin with, it is not true that Mrs.
Gayon "has nothing to do with the land subject of plaintiff's complaint." As the widow of
Silvestre Gayon, she is one of his compulsory heirs 2and has, accordingly, an interest in the
property in question. Moreover, her own motion to dismiss indicated merely "a necessity of
amending the complaint," to the end that the other successors in interest of Silvestre Gayon,
instead of the latter, be made parties in this case. In her opposition to the aforesaid motion for
reconsideration of the plaintiff, Mrs. Gayon alleged, inter alia, that the "heirs cannot represent the
dead defendant, unless there is a declaration of heirship." Inasmuch, however, as succession
takes place, by operation of law, "from the moment of the death of the decedent" 3and "(t)he
inheritance includes all the property, rights and obligations of a person which are not
extinguished by his death," 4it follows that if his heirs were included as defendants in this case,
they would be sued, not as "representatives" of the decedent, but as owners of an aliquot interest
in the property in question, even if the precise extent of their interest may still be undetermined
and they have derived it from the decent. Hence, they may be sued without a previous
declaration of heirship, provided there is no pending special proceeding for the settlement of the
estate of the decedent. 5 chanrobles virtual law library

As regards plaintiff's failure to seek a compromise, as an alleged obstacle to the present case, Art.
222 of our Civil Code provides:

No suit shall be filed or maintained between members of the same family unless it should appear
that earnest efforts toward a compromise have been made, but that the same have failed, subject
to the limitations in article 2035.

It is noteworthy that the impediment arising from this provision applies to suits "filed or
maintained between members of the same family." This phrase, "members of the same family,"
should, however, be construed in the light of Art. 217 of the same Code, pursuant to which:

Family relations shall include those: chanrobles virtual law library

(1) Between husband and wife; chanrobles virtual law library

(2) Between parent and child; chanrobles virtual law library

(3) Among other ascendants and their descendants; chanrobles virtual law library

(4) Among brothers and sisters.

Mrs. Gayon is plaintiff's sister-in-law, whereas her children are his nephews and/or nieces.
Inasmuch as none of them is included in the enumeration contained in said Art. 217 - which
should be construed strictly, it being an exception to the general rule - and Silvestre Gayon must
necessarily be excluded as party in the case at bar, it follows that the same does not come within
the purview of Art. 222, and plaintiff's failure to seek a compromise before filing the complaint
does not bar the same.chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the order appealed from is hereby set aside and the case remanded to the lower
court for the inclusion, as defendant or defendants therein, of the administrator or executor of the
estate of Silvestre Gayon, if any, in lieu of the decedent, or, in the absence of such administrator
or executor, of the heirs of the deceased Silvestre Gayon, and for further proceedings, not
inconsistent with this decision, with the costs of this instance against defendant-appellee,
Genoveva de Gayon.

[G.R. No. 129242. January 16, 2001]

PILAR S. VDA. DE MANALO, ANTONIO S. MANALO, ORLANDO S. MANALO, and

ISABELITA MANALO, petitioners, vs. HON. COURT OF APPEALS, HON. REGIONAL
TRIAL COURT OF MANILA (BRANCH 35), PURITA S. JAYME, MILAGROS M. TERRE,
BELEN M. ORILLANO, ROSALINA M. ACUIN, ROMEO S. MANALO, ROBERTO S.
MANALO, AMALIA MANALO and IMELDA MANALO, respondents.

DECISION

DE LEON, JR., J.:

This is a petition for review on certiorari filed by petitioners Pilar S. Vda. De Manalo, et. al.,
seeking to annul the Resolution of the Court of Appeals affirming the Orders of the Regional
Trial Court and the Resolutionwhich denied petitioners motion for reconsideration.

The antecedent facts are as follows:

Troadio Manalo, a resident of 1966 Maria Clara Street, Sampaloc, Manila died intestate on
February 14, 1992. He was survived by his wife, Pilar S. Manalo, and his eleven (11) children,
namely: Purita M. Jayme, Antonio Manalo, Milagros M. Terre, Belen M. Orillano, Isabelita
Manalo, Rosalina M. Acuin, Romeo Manalo, Roberto Manalo, Amalia Manalo, Orlando Manalo,
and Imelda Manalo, who are all of legal age.

At the time of his death on February 14, 1992, Troadio Manalo left several real properties located
in Manila and in the province of Tarlac including a business under the name and style Manalos
Machine Shop with offices at No. 19 Calavite Street, La Loma, Quezon City and at No. 45 Gen.
Tinio Street, Arty Subdivision, Valenzuela, Metro Manila.

On November 26, 1992, herein respondents, who are eight (8) of the surviving children of the
late Troadio Manalo, namely: Purita, Milagros, Belen, Rosalina, Romeo, Roberto, Amalia, and
Imelda filed a petition with the respondent Regional Trial Court of Manila for the judicial
settlement of the estate of their late father, Troadio Manalo, and for the appointment of their
brother, Romeo Manalo, as administrator thereof.

On December 15, 1992, the trial court issued an order setting the said petition for hearing on
February 11, 1993 and directing the publication of the order for three (3) consecutive weeks in a
newspaper of general circulation in Metro Manila, and further directing service by registered
mail of the said order upon the heirs named in the petition at their respective addresses
mentioned therein.

On February 11, 1993, the date set for hearing of the petition, the trial court issued an order
declaring the whole world in default, except the government, and set the reception of evidence
of the petitioners therein on March 16, 1993. However, this order of general default was set
aside by the trial court upon motion of herein petitioners (oppositors therein) namely: Pilar S.
Vda. De Manalo, Antonio, Isabelita and Orlando who were granted ten (10) days within which to
file their opposition to the petition.

Several pleadings were subsequently filed by herein petitioners, through counsel, culminating in
the filing of an Omnibus Motion on July 23, 1993 seeking: (1) to set aside and reconsider the
Order of the trial court dated July 9, 1993 which denied the motion for additional extension of
time to file opposition; (2) to set for preliminary hearing their affirmative defenses as grounds for
dismissal of the case; (3) to declare that the trial court did not acquire jurisdiction over the
persons of the oppositors; and (4) for the immediate inhibition of the presiding judge.

On July 30, 1993, the trial court issued an order which resolved, thus:

A. To admit the so-called Opposition filed by counsel for the oppositors on July 20, 1993, only
for the purpose of considering the merits thereof;

B. To deny the prayer of the oppositors for a preliminary hearing of their affirmative defenses as
ground for the dismissal of this proceeding, said affirmative defenses being irrelevant and
immaterial to the purpose and issue of the present proceeding;

C. To declare that this court has acquired jurisdiction over the persons of the oppositors;

D. To deny the motion of the oppositors for the inhibition of this Presiding Judge;

E. To set the application of Romeo Manalo for appointment as regular administrator in the
intestate estate of the deceased Troadio Manalo for hearing on September 9, 1993 at 2:00 oclock
in the afternoon.

Herein petitioners filed a petition for certiorari under Rule 65 of the Rules of Court with the
Court of Appeals, docketed as CA-G.R. SP. No. 39851, after their motion for reconsideration of
the Order dated July 30, 1993 was denied by the trial court in its Order dated September 15,
1993. In their petition for certiorari with the appellate court, they contend that: (1) the venue
was improperly laid in SP. PROC. No. 92-63626; (2) the trial court did not acquire jurisdiction
over their persons; (3) the share of the surviving spouse was included in the intestate
proceedings; (4) there was absence of earnest efforts toward compromise among members of the
same family; and (5) no certification of non-forum shopping was attached to the petition.

Finding the contentions untenable, the Court of Appeals dismissed the petition for certiorari in its
Resolution promulgated on September 30, 1996. On May 6, 1997 the motion for reconsideration
of the said resolution was likewise dismissed.

The only issue raised by herein petitioners in the instant petition for review is whether or not the
respondent Court of Appeals erred in upholding the questioned orders of the respondent trial
court which denied their motion for the outright dismissal of the petition for judicial settlement
of estate despite the failure of the petitioners therein to aver that earnest efforts toward a
compromise involving members of the same family have been made prior to the filing of the
petition but that the same have failed.

Herein petitioners claim that the petition in SP. PROC No. 92-63626 is actually an ordinary civil
action involving members of the same family. They point out that it contains certain averments
which, according to them, are indicative of its adversarial nature, to wit:

x x x

Par. 7. One of the surviving sons, ANTONIO MANALO, since the death of his father,
TROADIO MANALO, had not made any settlement, judicial or extra-judicial of the properties
of the deceased father, TROADIO MANALO.

Par. 8. xxx the said surviving son continued to manage and control the properties
aforementioned, without proper accounting, to his own benefit and advantage xxx.

x x x

Par. 12. That said ANTONIO MANALO is managing and controlling the estate of the deceased
TROADIO MANALO to his own advantage and to the damage and prejudice of the herein
petitioners and their co-heirs xxx.

x x x

Par. 14. For the protection of their rights and interests, petitioners were compelled to bring this
suit and were forced to litigate and incur expenses and will continue to incur expenses of not less
than, P250,000.00 and engaged the services of herein counsel committing to pay P200,000.00 as
and for attorneys fees plus honorarium of P2,500.00 per appearance in court xxx.

Consequently, according to herein petitioners, the same should be dismissed under Rule 16,
Section 1(j) of the Revised Rules of Court which provides that a motion to dismiss a complaint
may be filed on the ground that a condition precedent for filing the claim has not been complied
with, that is, that the petitioners therein failed to aver in the petition in SP. PROC. No. 92-63626,
that earnest efforts toward a compromise have been made involving members of the same family
prior to the filing of the petition pursuant to Article 222 of the Civil Code of the Philippines.

The instant petition is not impressed with merit.

It is a fundamental rule that, in the determination of the nature of an action or proceeding, the
averments and the character of the relief sought in the complaint, or petition, as in the case at bar,
shall be controlling. A careful scrutiny of the Petition for Issuance of Letters of Administration,
Settlement and Distribution of Estate in SP. PROC. No. 92-63626 belies herein petitioners claim
that the same is in the nature of an ordinary civil action. The said petition contains sufficient
jurisdictional facts required in a petition for the settlement of estate of a deceased person such as
the fact of death of the late Troadio Manalo on February 14, 1992, as well as his residence in the
City of Manila at the time of his said death. The fact of death of the decedent and of his
residence within the country are foundation facts upon which all the subsequent proceedings in
the administration of the estate rest. The petition in SP. PROC. No. 92-63626 also contains an
enumeration of the names of his legal heirs including a tentative list of the properties left by the
deceased which are sought to be settled in the probate proceedings. In addition, the reliefs
prayed for in the said petition leave no room for doubt as regard the intention of the petitioners
therein (private respondents herein) to seek judicial settlement of the estate of their deceased
father, Troadio Manalo, to wit:

PRAYER

WHEREFORE, premises considered, it is respectfully prayed for of this Honorable Court:

(a) That after due hearing, letters of administration be issued to petitioner ROMEO MANALO
for the administration of the estate of the deceased TORADIO MANALO upon the giving of a
bond in such reasonable sum that this Honorable Court may fix.

(b) That after all the properties of the deceased TROADIO MANALO have been inventoried and
expenses and just debts, if any, have been paid and the legal heirs of the deceased fully
determined, that the said estate of TROADIO MANALO be settled and distributed among the
legal heirs all in accordance with law.

c) That the litigation expenses o these proceedings in the amount of P250,000.00 and attorneys
fees in the amount of P300,000.00 plus honorarium of P2,500.00 per appearance in court in the
hearing and trial of this case and costs of suit be taxed solely against ANTONIO MANALO.

Concededly, the petition in SP. PROC. No. 92-63626 contains certain averments which may be
typical of an ordinary civil action. Herein petitioners, as oppositors therein, took advantage of
the said defect in the petition and filed their so-called Opposition thereto which, as observed by
the trial court, is actually an Answer containing admissions and denials, special and affirmative
defenses and compulsory counterclaims for actual, moral and exemplary damages, plus
attorney's fees and costs in an apparent effort to make out a case of an ordinary civil action an
ultimately seek its dismissal under Rule 16, Section 1(j) of the Rules of Court vis--vis, Article
222 of the Civil Code.

It is our view that herein petitioners may not be allowed to defeat the purpose of the essentially
valid petition for the settlement of the estate of the late Troadio Manalo by raising matters that
are irrelevant and immaterial to the said petition. It must be emphasized that the trial court,
sitting, as a probate court, has limited and special jurisdiction and cannot hear and dispose of
collateral matters and issues which may be properly threshed out only in an ordinary civil
action. In addition, the rule has always been to the effect that the jurisdiction of a court, as well
as the concomitant nature of an action, is determined by the averments in the complaint and not
by the defenses contained in the answer. If it were otherwise, it would not be too difficult to
have a case either thrown out of court or its proceedings unduly delayed by simple strategem. So
it should be in the instant petition for settlement of estate.
Herein petitioners argue that even if the petition in SP. PROC. No. 92-63626 were to be
considered as a special proceeding for the settlement of estate of a deceased person, Rule 16,
Section 1(j) of the Rules of Court vis-a-vis Article 222 of the Civil Code of the Philippines
would nevertheless apply as a ground for the dismissal of the same by virtue of Rule 1, Section 2
of the Rules of Court which provides that the rules shall be liberally construed in order to
promote their object and to assist the parties in obtaining just, speedy and inexpensive
determination of every action and proceeding. Petitioners contend that the term proceeding is
so broad that it must necessarily include special proceedings.

The argument is misplaced. Herein petitioners may not validly take refuge under the provisions
of Rule 1, Section 2, of the Rules of Court to justify the invocation of Article 222 of the Civil
Code of the Philippines for the dismissal of the petition for settlement of the estate of the
deceased Troadio Manalo inasmuch as the latter provision is clear enough, to wit:

Art. 222. No suit shall be filed or maintained between members of the same family unless it
should appear that earnest efforts toward a compromise have been made, but that the same have
failed, subject to the limitations in Article 2035 (underscoring supplied).

The above-quoted provision of the law is applicable only to ordinary civil actions. This is clear
from the term suit that it refers to an action by one person or persons against another or others
in a court of justice in which the plaintiff pursues the remedy which the law affords him for the
redress of an injury or the enforcement of a right, whether at law or in equity. A civil action is
thus an action filed in a court of justice, whereby a party sues another for the enforcement of a
right, or the prevention or redress of a wrong. Besides, an excerpt from the Report of the Code
Commission unmistakably reveals the intention of the Code Commission to make that legal
provision applicable only to civil actions which are essentially adversarial and involve members
of the same family, thus:

It is difficult to imagine a sadder and more tragic spectacle than a litigation between members of
the same family. It is necessary that every effort should be made toward a compromise before a
litigation is allowed to breed hate and passion in the family. It is known that lawsuit between
close relatives generates deeper bitterness than strangers.

It must be emphasized that the oppositors (herein petitioners) are not being sued in SP. PROC.
No. 92-63626 for any cause of action as in fact no defendant was impleaded therein. The
Petition for Issuance of Letters of Administration, Settlement and Distribution of Estate in SP.
PROC. No. 92-63626 is a special proceeding and, as such, it is a remedy whereby the petitioners
therein seek to establish a status, a right, or a particular fact. The petitioners therein (private
respondents herein) merely seek to establish the fact of death of their father and subsequently to
be duly recognized as among the heirs of the said deceased so that they can validly exercise their
right to participate in the settlement and liquidation of the estate of the decedent consistent with
the limited and special jurisdiction of the probate court.

WHEREFORE, the petition in the above-entitled case, is DENIED for lack of merit. Costs
against petitioners.
[G.R. No. 172263, July 09, 2008]

SPOUSES AUTHER G. KELLEY, JR. AND DORIS A. KELLEY, COMPLAINANTS, VS.

PLANTERS PRODUCTS, INC. AND JORGE A. RAGUTANA,[1] RESPONDENTS.

R E S OLUTIO N

CORONA, J.:

Petitioner Auther G. Kelley, Jr. (Auther) acquired agricultural chemical products on consignment
from respondent Planters Products, Inc. (PPI) in 1989. Due to Auther's failure to pay despite
demand, PPI filed an action for sum of money against him in the Regional Trial Court of Makati
City, Branch 57 (RTC Makati City). This was docketed as Civil Case No. 91-904.

After trial on the merits, the RTC Makati City decided in favor of PPI and issued a writ of
execution. Pursuant thereto, respondent sheriff Jorge A. Ragutana sold on execution real property
covered by TCT No. 15079 located in Naga City. A certificate of sale was issued in favor of PPI
as the highest bidder.

After being belatedly informed of the said sale, petitioners Auther and his wife Doris A. Kelley
(Doris) filed a motion to dissolve or set aside the notice of levy in the RTC Makati City on the
ground that the subject property was their family home which was exempt from execution.
Petitioners' motion was denied for failure to comply with the three-day notice requirement.

Subsequently, petitioners filed a complaint for declaration of nullity of levy and sale of the
alleged family home with damages against Ragutana and PPI in the Regional Trial Court of Naga
City, Branch 19 (RTC Naga City). This was docketed as Civil Case No. 2000-0188. The case
was, however, dismissed for lack of jurisdiction and lack of cause of action. The dismissal was
upheld by the CA.

Petitioners now come to us in this petition for review on certiorari contending that the CA erred
in upholding the dismissal of Civil Case No. 2000-0188 by the RTC Naga City. They claim that
Doris was a stranger[2] to Civil Case No. 91-904 (in the RTC Makati City) who could not be
forced to litigate therein.

Petitioners anchor their action in Civil Case No. 2000-0188 on their contention that TCT No.
15079 is the Kelley family home. No doubt, a family home is generally exempt from execution[3]
provided it was duly constituted as such. There must be proof that the alleged family home was
constituted jointly by the husband and wife or by an unmarried head of a family.[4] It must be the
house where they and their family actually reside and the lot on which it is situated.[5] The family
home must be part of the properties of the absolute community or the conjugal partnership, or of
the exclusive properties of either spouse with the latter's consent, or on the property of the
unmarried head of the family.[6] The actual value of the family home shall not exceed, at the time
of its constitution, the amount of P300,000 in urban areas and P200,000 in rural areas.[7]
Under the Family Code, there is no need to constitute the family home judicially or
extrajudicially. All family homes constructed after the effectivity of the Family Code (August 3,
1988) are constituted as such by operation of law. All existing family residences as of August 3,
1988 are considered family homes and are prospectively entitled to the benefits accorded to a
family home under the Family Code. [8]

The exemption is effective from the time of the constitution of the family home as such and lasts
as long as any of its beneficiaries actually resides therein.[9] Moreover, the debts for which the
family home is made answerable must have been incurred after August 3, 1988. Otherwise (that
is, if it was incurred prior to August 3, 1988), the alleged family home must be shown to have
been constituted either judicially or extrajudicially pursuant to the Civil Code.

The rule, however, is not absolute. The Family Code, in fact, expressly provides for the
following exceptions:
Article 155. The family home shall be exempt from execution, forced sale or attachment except:

(1) For non-payment of taxes;

(2) For debts incurred prior to the constitution of the family home;
(3) For debts secured by a mortgage on the premises before or after such constitution; and
(4) For debts due to laborers, mechanics, architects, builders, materialmen and others who
have rendered service or furnished material for the construction of the building.

xxx xxx xxx

Article 160. When a creditor whose claim is not among those mentioned in Article 155 obtains a
judgment in his favor, and he has reasonable grounds to believe that the family home is actually
worth more than the maximum amount fixed in Article 157, he may apply to the court which
rendered the judgment for an order directing the sale of the property under execution. The court
shall so order if it finds that the actual value of the family home exceeds the maximum amount
allowed by law as of the time of its constitution. If the increased actual value exceeds the
maximum amount allowed by law in Article 157 and results from subsequent voluntary
improvements introduced by the person or persons constituting the family home, by the owner or
owners of the property, or by any of the beneficiaries, the same rule and procedure shall apply.

xxx xxx xxx

We grant the petition only to the extent of allowing petitioners to adduce evidence in the trial
court that TCT No. 15079 is in fact their family home as constituted in accordance with the
requirements of law. This is in consonance with our ruling in Gomez v. Sta. Ines[10] where we
held:
[The husband and children] were not parties to the Pasig RTC case and are third-party claimants
who became such only after trial in the previous case had been terminated and the judgment
therein had become final and executory. Neither were they indispensable nor necessary parties in
the Pasig RTC case, and they could not therefore intervene in said case. As strangers to the
original case, respondents cannot be compelled to present their claim with the Pasig RTC which
issued the writ of execution.xxx
In said case, the alleged family home was sold on execution by the sheriff of the Pasig RTC. The
husband and children of the judgment debtor filed a complaint for annulment of sale of the levied
property in Bayombong, Nueva Vizcaya where the alleged family home was situated. As they
were considered strangers to the action filed in the Pasig RTC, we ruled that the Nueva Vizcaya
RTC had jurisdiction over the complaint and that they could vindicate their alleged claim to the
levied property there.[11]

WHEREFORE, Civil Case No. 2000-0188 captioned Spouses Auther G. Kelley, Jr. and Doris
A. Kelley v. Planters Products, Inc. and Jorge A. Ragutana is hereby REINSTATED and this
case is hereby REMANDED to the Regional Trial Court of Naga City, Branch 19 for
determination whether or not the property covered by TCT No. 15079 is a duly constituted
family home and therefore exempt from execution.

[G.R. No. 97898. August 11, 1997]

FLORANTE F. MANACOP, petitioner, vs. COURT OF APPEALS and E & L MERCANTILE,

INC., respondents.

DECISION

PANGANIBAN, J.:

May a writ of execution of a final and executory judgment issued before the effectivity of the
Family Code be executed on a house and lot constituted as a family home under the provision of
said Code?

Statement of the Case

This is the principal question posed by petitioner in assailing the Decision of Respondent Court
of Appeals in CA-G.R. SP No. 18906 promulgated on February 21, 1990 and its Resolution
promulgated on March 21, 1991, affirming the orders issued by the trial court commanding the
issuance of various writs of execution to enforce the latters decision in Civil Case No. 53271.

The Facts

Petitioner Florante F. Manacop and his wife Eulaceli purchased on March 10, 1972 a 446-square-
meter residential lot with a bungalow, in consideration of P75,000.00. The property, located in
Commonwealth Village, Commonwealth Avenue, Quezon City, is covered by Transfer
Certificate of Title No. 174180.

On March 17, 1986, Private Respondent E & L Mercantile, Inc. filed a complaint against
petitioner and F.F. Manacop Construction Co., Inc. before the Regional Trial Court of Pasig,
Metro Manila to collect an indebtedness of P3,359,218.45. Instead of filing an answer, petitioner
and his company entered into a compromise agreement with private respondent, the salient
portion of which provides:
c. That defendants will undertake to pay the amount of P2,000,000.00 as and when their means
permit, but expeditiously as possible as their collectibles will be collected. (sic)

On April 20, 1986, the trial court rendered judgment approving the aforementioned compromise
agreement. It enjoined the parties to comply with the agreement in good faith. On July 15,
1986, private respondent filed a motion for execution which the lower court granted on
September 23, 1986. However, execution of the judgment was delayed. Eventually, the sheriff
levied on several vehicles and other personal properties of petitioner. In partial satisfaction of
the judgment debt, these chattels were sold at public auction for which certificates of sale were
correspondingly issued by the sheriff.

On August 1, 1989, petitioner and his company filed a motion to quash the alias writs of
execution and to stop the sheriff from continuing to enforce them on the ground that the
judgment was not yet executory. They alleged that the compromise agreement had not yet
matured as there was no showing that they had the means to pay the indebtedness or that their
receivables had in fact been collected. They buttressed their motion with supplements and other
pleadings.

On August 11, 1989, private respondent opposed the motion on the following grounds: (a) it was
too late to question the September 23, 1986 Order considering that more than two years had
elapsed; (b) the second alias writ of execution had been partially implemented; and (c) petitioner
and his company were in bad faith in refusing to pay their indebtedness notwithstanding that
from February 1984 to January 5, 1989, they had collected the total amount of P41,664,895.56.
On September 21, 1989, private respondent filed an opposition to petitioner and his companys
addendum to the motion to quash the writ of execution. It alleged that the property covered by
TCT No. 174180 could not be considered a family home on the grounds that petitioner was
already living abroad and that the property, having been acquired in 1972, should have been
judicially constituted as a family home to exempt it from execution.

On September 26, 1989, the lower court denied the motion to quash the writ of execution and the
prayers in the subsequent pleadings filed by petitioner and his company. Finding that petitioner
and his company had not paid their indebtedness even though they collected receivables
amounting to P57,224,319.75, the lower court held that the case had become final and executory.
It also ruled that petitioners residence was not exempt from execution as it was not duly
constituted as a family home, pursuant to the Civil Code.

Hence, petitioner and his company filed with the Court of Appeals a petition for certiorari
assailing the lower courts Orders of September 23, 1986 and September 26, 1989. On February
21, 1990, Respondent Court of Appeals rendered its now questioned Decision dismissing the
petition for certiorari. The appellate court quoted with approval the findings of the lower court
that: (a) the judgment based on the compromise agreement had become final and executory,
stressing that petitioner and his company had collected the total amount of P57,224,319.75 but
still failed to pay their indebtedness and (b) there was no showing that petitioners residence had
been duly constituted as a family home to exempt it from execution. On the second finding, the
Court of Appeals added that:
x x x. We agree with the respondent judge that there is no showing in evidence that petitioner
Maacops residence under TCT 174180 has been duly constituted as a family home in
accordance with law. For one thing, it is the clear implication of Article 153 that the family home
continues to be so deemed constituted so long as any of its beneficiaries enumerated in Article
154 actually resides therein. Conversely, it ceases to continue as such family home if none of its
beneficiaries actually occupies it. There is no showing in evidence that any of its beneficiaries is
actually residing therein. On the other hand, the unrefuted assertion of private respondent is that
petitioner Florante Maacop had already left the country and is now, together with all the
members of his family, living in West Covina, Los Angeles, California, U.S.A.

Petitioner and his company filed a motion for reconsideration of this Decision on the ground that
the property covered by TCT No. 174180 was exempt from execution. On March 21, 1991, the
Court of Appeals rendered the challenged Resolution denying the motion. It anchored its ruling
on Modequillo v. Breva, which held that all existing family residences at the time of the
effectivity of the Family Code are considered family homes and are prospectively entitled to the
benefits accorded to a family home under the Family Code.

Applying the foregoing pronouncements to this case, the Court of Appeals explained:

The record of the present case shows that petitioners incurred the debt of P3,468,000.00 from
private respondent corporation on February 18, 1982 (Annex `A, Petition). The judgment based
upon the compromise agreement was rendered by the court on April 18, 1986 (Annex `C, Ibid).
Paraphrasing the aforecited Modequillo case, both the debt and the judgment preceded the
effectivity of the Family Code on August 3, 1988. Verily, the case at bar does not fall under the
exemptions from execution provided under Article 155 of the Family Code.

Undeterred, petitioner filed the instant petition for review on certiorari arguing that the Court of
Appeals misapplied Modequillo. He contends that there was no need for him to constitute his
house and lot as a family home for it to be treated as such since he was and still is a resident of
the same property from the time it was levied upon and up to this moment.

The Issue

As stated in the opening sentence of this Decision, the issue in this case boils down to whether a
final and executory decision promulgated and a writ of execution issued before the effectivity of
the Family Code can be executed on a family home constituted under the provisions of the said
Code.

The Courts Ruling

We answer the question in the affirmative. The Court of Appeals committed no reversible error.
On the contrary, its Decision and Resolution are supported by law and applicable jurisprudence.

No Novel Issue
At the outset, the Court notes that the issue submitted for resolution in the instant case is not
entirely new. In Manacop v. Court of Appeals, petitioner himself as a party therein raised a
similar question of whether this very same property was exempt from preliminary attachment
for the same excuse that it was his family home. In said case, F.F. Cruz & Co., Inc. filed a
complaint for a sum of money. As an incident in the proceedings before it, the trial court issued
a writ of attachment on the said house and lot. In upholding the trial court (and the Court of
Appeals) in that case, we ruled that petitioner incurred the indebtedness in 1987 or prior to the
effectivity of the Family Code on August 3, 1988. Hence, petitioners family home was not
exempt from attachment by sheer force of exclusion embodied in paragraph 2, Article 155 of
the Family Code cited in Modequillo, where the Court categorically ruled:

Under the Family Code, a family home is deemed constituted on a house and lot from the time
it is occupied as a family residence. There is no need to constitute the same judicially or
extrajudicially as required in the Civil Code. If the family actually resides in the premises, it is,
therefore, a family home as contemplated by law. Thus, the creditors should take the necessary
precautions to protect their interest before extending credit to the spouses or head of the family
who owns the home.

Article 155 of the Family Code also provides as follows:

Art. 155. The family home shall be exempt from execution, forced sale or attachment except:

(1) For nonpayment of taxes;

(2) For debts incurred prior to the constitution of the family home;

(3) For debts secured by mortgages on the premises before or after such constitution; and

(4) For debts due to laborers, mechanics, architects, builders, materialmen and others
who have rendered service or furnished material for the construction of the
building.

The exemption provided as aforestated is effective from the time of the constitution of the family
home as such, and lasts so long as any of its beneficiaries actually resides therein.

In the present case, the residential house and lot of petitioner was not constituted as a family
home whether judicially or extrajudicially under the Civil Code. It became a family home by
operation of law only under Article 153 of the Family Code. It is deemed constituted as a family
home upon the effectivity of the Family Code on August 3, 1988 not August 4, one year after its
publication in the Manila Chronicle on August 4, 1987 (1988 being a leap year).

The contention of petitioner that it should be considered a family home from the time it was
occupied by petitioner and his family in 1960 is not well-taken. Under Article 162 of the Family
Code, it is provided that `the provisions of this Chapter shall also govern existing family
residences insofar as said provisions are applicable. It does not mean that Articles 152 and 153
of said Code have a retroactive effect such that all existing family residences are deemed to have
been constituted as family homes at the time of their occupation prior to the effectivity of the
Family Code and are exempt from execution for the payment of obligations incurred before the
effectivity of the Family Code. Article 162 simply means that all existing family residences at
the time of the effectivity of the Family Code, are considered family homes and are prospectively
entitled to the benefits accorded to a family home under the Family Code. Article 162 does not
state that the provisions of Chapter 2, Title V have a retroactive effect.

Is the family home of petitioner exempt from execution of the money judgment aforecited? No.
The debt or liability which was the basis of the judgment arose or was incurred at the time of the
vehicular accident on March 16, 1976 and the money judgment arising therefrom was rendered
by the appellate court on January 29, 1988. Both preceded the effectivity of the Family Code on
August 3, 1988. This case does not fall under the exemptions from execution provided in the
Family Code.6 (Underscoring supplied.)

Article 153 of the Family Code Has No Retroactive Effect

Petitioner contends that the trial court erred in holding that his residence was not exempt from
execution in view of his failure to show that the property involved has been duly constituted as
a family home in accordance with law. He asserts that the Family Code and Modequillo require
simply the occupancy of the property by the petitioner, without need for its judicial or
extrajudicial constitution as a family home.

Petitioner is only partly correct. True, under the Family Code which took effect on August 3,
1988, the subject property became his family home under the simplified process embodied in
Article 153 of said Code. However, Modequillo explicitly ruled that said provision of the
Family Code does not have retroactive effect. In other words, prior to August 3, 1988, the
procedure mandated by the Civil Code had to be followed for a family home to be constituted as
such. There being absolutely no proof that the subject property was judicially or extrajudicially
constituted as a family home, it follows that the laws protective mantle cannot be availed of by
petitioner. Since the debt involved herein was incurred and the assailed orders of the trial court
issued prior to August 3, 1988, the petitioner cannot be shielded by the benevolent provisions of
the Family Code.

List of Beneficiary-Occupants Restricted to Those Enumerated in the Code

In view of the foregoing discussion, there is no reason to address the other arguments of
petitioner other than to correct his misconception of the law. Petitioner contends that he should
be deemed residing in the family home because his stay in the United States is merely temporary.
He asserts that the person staying in the house is his overseer and that whenever his wife visited
this country, she stayed in the family home. This contention lacks merit.

The law explicitly provides that occupancy of the family home either by the owner thereof or by
any of its beneficiaries must be actual. That which is actual is something real, or actually
existing, as opposed to something merely possible, or to something which is presumptive or
constructive. Actual occupancy, however, need not be by the owner of the house specifically.
Rather, the property may be occupied by the beneficiaries enumerated by Article 154 of the
Family Code.

Art. 154. The beneficiaries of a family home are:

(1) The husband and wife, or an unmarried person who is the head of the family; and

(2) Their parents, ascendants, descendants, brothers and sisters, whether the
relationship be legitimate or illegitimate, who are living in the family home and who
depend upon the head of the family for lead support.

This enumeration may include the in-laws where the family home is constituted jointly by the
husband and wife. But the law definitely excludes maids and overseers. They are not the
beneficiaries contemplated by the Code. Consequently, occupancy of a family home by an
overseer like Carmencita V. Abat in this case is insufficient compliance with the law.

WHEREFORE, the petition is hereby DENIED for utter lack of merit. This Decision is
immediately executory. Double costs against petitioner.

THIRD DIVISION

BELEN SAGAD ANGELES, G.R. No. 153798

Petitioner,

Present:

PANGANIBAN, J., Chairman

SANDOVAL-GUTIERREZ,

CORONA,

- versus - CARPIO-MORALES, and

GARCIA, JJ.
 Promulgated:

ALELI CORAZON ANGELES

MAGLAYA,

Respondent. September 2, 2005

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

DECISION

GARCIA, J.:

In this petition for review on certiorari under Rule 45 of the Rules of Court,
petitioner Belen Sagad Angeles seeks to set aside the Decision dated May 29, 2002[1] of the
Court of Appeals in CA G.R. CV No. 66037, reversing an earlier Order of the Regional Trial
Court at Caloocan City which dismissed the petition for the settlement of the intestate estate of
Francisco Angeles, thereat commenced by the herein respondent Aleli Corazon Angeles-
Maglaya.

The legal dispute between the parties started when, on March 25, 1998, in the Regional
Trial Court (RTC) at Caloocan City, respondent filed a petition[2] for letters of administration
and her appointment as administratrix of the intestate estate of Francisco M. Angeles (Francisco,
hereinafter). In the petition, docketed as Special Proceedings No. C-2140 and raffled to Branch
120 of the court, respondent alleged, among other things, the following:

1. That Francisco, a resident of 71 B. Serrano St., Grace Park, Caloocan, died intestate on
January 21, 1998 in the City of Manila, leaving behind four (4) parcels of land and a building,
among other valuable properties;

2. That there is a need to appoint an administrator of Franciscos estate;

 3. That she (respondent) is the sole legitimate child of the deceased and Genoveva
Mercado, and, together with petitioner, Belen S. Angeles, decedents wife by his second
marriage, are the surviving heirs of the decedent; and

4. That she has all the qualifications and none of the disqualifications required of an
administrator.

Petitioner opposed the basic petition and prayed that she, instead of respondent, be made the
administratrix of Franciscos estate.[3] In support of her opposition and plea, petitioner alleged
having married Francisco on August 7, 1948 before Judge Lucio M. Tianco of the Municipal
Court of Rizal, a union which was ratified two (2) months later in religious rites at the Our Lady
of Grace Parish in Caloocan City, and that Francisco represented in their marriage contract that
he was single at that time. Petitioner also averred that respondent could not be the daughter of
Francisco for, although she was recorded as Franciscos legitimate daughter, the corresponding
birth certificate was not signed by him. Pressing on, petitioner further alleged that respondent,
despite her claim of being the legitimate child of Francisco and Genoveva Mercado, has not
presented the marriage contract between her supposed parents or produced any acceptable
document to prove such union. And evidently to debunk respondents claim of being the only
child of Francisco, petitioner likewise averred that she and Francisco had, during their marriage,
legally adopted Concesa A. Yamat, et al. Petitioner thus urged that she, being the surviving
spouse of Francisco, be declared as possessed of the superior right to the administration of his
estate.

In her reply to opposition, respondent alleged, inter alia, that per certification of the
appropriate offices, the January to December 1938 records of marriages of the Civil Registrar of
Bacolor, Pampanga where the alleged 1938 Francisco-Genoveva wedding took place, were
destroyed. In the same reply, respondent dismissed as of little consequence the adoption
adverted to owing to her having interposed with the Court of Appeals a petition to nullify the
decree of adoption entered by the RTC at Caloocan.[4]

Issues having been joined, trial ensued. Respondent, as petitioner a quo, commenced the
presentation of her evidence by taking the witness stand. She testified having been born on
November 20, 1939 as the legitimate child of Francisco M. Angeles and Genoveva Mercado,
who died in January 1988.[5] She also testified having been in open and continuous possession
of the status of a legitimate child. Four (4) other witnesses testified on her behalf, namely:
Tomas Angeles,[6] Francisco Yaya,[7] Jose O. Carreon[8] and Paulita Angeles de la Cruz.[9]
Respondent also offered in evidence her birth certificate which contained an entry stating that
she was born at the Mary Johnston Hospital, Tondo, Manila, to Francisco Angeles and Genoveva
Mercado and whereon the handwritten word Yes appears on the space below the question
Legitimate? (Legitimo?); pictures taken during respondents wedding as bride to Atty.
Guillermo T. Maglaya; and a copy of her marriage contract. Likewise offered were her
scholastic and government service records.

After respondent rested her case following her formal offer of exhibits, petitioner filed a
Motion to Dismiss under Section 1(g), Rule 16 of the Rules of Court. In it, she prayed for the
dismissal of the petition for letters of administration on the ground that the petition failed to
state or prove a cause of action, it being her stated position that [P]etitioner [Corzaon], by
her evidence, failed to establish her filiation vis--vis the decedent, i.e., that she is in fact a
legitimate child of Francisco M. Angeles.[10]

To the motion to dismiss, respondent interposed an opposition, followed by petitioners

reply, to which respondent countered with a rejoinder.

Eventually, in an Order dated July 12, 1999,[11] the trial court, on its finding that
respondent failed to prove her filiation as legitimate child of Francisco, dismissed the petition,
thus:

WHEREFORE, the instant petition is hereby ordered DISMISSED for

failure of the [respondent] to state a cause of action in accordance with Section
1(g) of Rule 16 of the 1997 Rules of Civil of Procedure. (Word in bracket added]
 Respondent then moved for reconsideration, which motion was denied by the trial court in
its Order of December 17, 1999.[12] Therefrom, respondent went on appeal to the Court of
Appeals where her recourse was docketed as CA-G.R. CV No. 66037.

As stated at the threshold hereof, the Court of Appeals, in its assailed Decision dated May
29, 2002,[13] reversed and set aside the trial courts order of dismissal and directed it to appoint
respondent as administratrix of the estate of Francisco, to wit:

WHEREFORE, the appealed order of dismissal is REVERSED. The

Trial Court is hereby ordered to appoint petitioner-appellant Aleli Corazon
Angeles as administratrix of the intestate estate of Francisco Angeles.

SO ORDERED.

The appellate court predicated its ruling on the interplay of the following main premises:

1. Petitioners Motion to Dismiss filed with the trial court, albeit premised on the alleged
failure of the underlying petition for letter of administration to state or prove a cause of action,
actually partakes of a demurrer to evidence under Section 1 of Rule 33;[14]

2. Petitioners motion being a demurer, it follows that she thereby waived her right to
present opposing evidence to rebut respondents testimonial and documentary evidence; and

3. Respondent has sufficiently established her legitimate filiation with the deceased
Francisco.

Hence, petitioners instant petition for review on certiorari, on the submission that the
Court of Appeals erred: (1) in reversing the trial courts order of dismissal;[15] (2) in treating her
motion to dismiss as a demurrer to evidence; (3) in holding that respondent is a legitimate
daughter of Francisco; and (4) in decreeing respondents appointment as administratrix of
Franciscos intestate estate.
 We resolve to grant the petition.

The principal issue tendered in this case boils down to the question of whether or not
respondent is the legitimate child of decedent Francisco M. Angeles and Genoveva Mercado. The
Court of Appeals resolved the issue in the affirmative and, on the basis of such determination,
ordered the trial court to appoint respondent as administratrix of Franciscos estate.

We are unable to lend concurrence to the appellate courts conclusion on the legitimate
status of respondent, or, to be precise, on her legitimate filiation to the decedent. A legitimate
child is a product of, and, therefore, implies a valid and lawful marriage. Remove the element of
lawful union and there is strictly no legitimate filiation between parents and child. Article 164 of
the Family Code cannot be more emphatic on the matter: Children conceived or born during
the marriage of the parents are legitimate.

In finding for respondent, the Court of Appeals, citing and extensibly quoting from Tison
vs. Court of Appeals,[16] stated that since petitioner opted not to present any contrary
evidence, the presumption on respondents legitimacy stands unrebutted.[17]

Following is an excerpt from Tison:

It seems that both the court a quo and respondent appellate court have
regrettably overlooked the universally recognized presumption on legitimacy.
There is no presumption of the law more firmly established and founded on
 sounder morality and more convincing than the presumption that children born
in wedlock are legitimate. And well-settled is the rule that the issue of
legitimacy cannot be attacked collaterally.

The rationale for this rule has been explained in this wise:

The presumption of legitimacy in the Family Code . . .

actually fixes a status for the child born in wedlock, and that civil
status cannot be attacked collaterally. xxx

xxx xxx xxx

Upon the expiration of the periods provided in Article 170

[of the Family Code], the action to impugn the legitimacy of a child
can no longer be bought. The status conferred by the presumption,
therefore, becomes fixed, and can no longer be questioned. The
obvious intention of the law is to prevent the status of a child born
in wedlock from being in a state of uncertainty. It also aims to force
early action to settle any doubt as to the paternity of such child so
that the evidence material to the matter . . . may still be easily
available.

xxx xxx xxx

Only the husband can contest the legitimacy of a child born

to his wife . . . .(Words in bracket added; Emphasis ours)

Contextually, the correct lesson of Tison, which the appellate court evidently misapplied,
is that: (a) a child is presumed legitimate only if conceived or born in wedlock; and (b) the
presumptive legitimacy of such child cannot be attacked collaterally.
 A party in whose favor the legal presumption exists may rely on and invoke such legal
presumption to establish a fact in issue. He need not introduce evidence to prove that fact.[18]
For, a presumption is prima facie proof of the fact presumed. However, it cannot be over-
emphasized, that while a fact thus prima facie established by legal presumption shall, unless
overthrown, stand as proved,[19] the presumption of legitimacy under Article 164 of the Family
Code[20] may be availed only upon convincing proof of the factual basis therefor, i.e., that the
childs parents were legally married and that his/her conception or birth occurred during the
subsistence of that marriage. Else, the presumption of law that a child is legitimate does not
arise.

In the case at bench, the Court of Appeals, in its decision under review, did not
categorically state from what facts established during the trial was the presumption of
respondents supposed legitimacy arose. But even if perhaps it wanted to, it could not have
possibly done so. For, save for respondents gratuitous assertion and an entry in her certificate of
birth, there is absolutely no proof of the decedents marriage to respondents mother, Genoveva
Mercado. To stress, no marriage certificate or marriage contract doubtless the best evidence of
Franciscos and Genovevas marriage, if one had been solemnized[21] was offered in evidence.
No priest, judge, mayor, or other solemnizing authority was called to the witness box to declare
that he solemnized the marriage between the two. None of the four (4) witnesses respondent
presented could say anything about, let alone affirm, that supposed marriage. At best, their
testimonies proved that respondent was Franciscos daughter. For example, Tomas Angeles and
Paulita Angeles de la Cruz testified that they know respondent to be their cousin because his
(Tomas) father and her (Paulitas) mother, who are both Franciscos siblings, told them so.
[22] And one Jose Carreon would testify seeing respondent in 1948 in Franciscos house in
Caloocan, the same Francisco who used to court Genoveva before the war.[23] In all, no
evidence whatsoever was presented of the execution of the Francisco Angeles-Genoveva
Mercado marriage contract; when and where their marriage was solemnized; the identity of the
solemnizing officer; the persons present, and like significant details.
 While perhaps not determinative of the issue of the existence of marriage between
Francisco and Genoveva, we can even go to the extent of saying that respondent has not even
presented a witness to testify that her putative parents really held themselves out to the public as
man-and-wife. Clearly, therefore, the Court of Appeals erred in crediting respondent with the
legal presumption of legitimacy which, as above explained, should flow from a lawful marriage
between Francisco and Genevova. To reiterate, absent such a marriage, as here, there is no
presumption of legitimacy and, therefore, there was really nothing for petitioner to rebut.

Parenthetically, for all her unyielding stance that her mother and Francisco Angeles were
married in 1938, respondent never, thru the years, even question what would necessarily be a
bigamous Francisco-Belen Sagad marriage. Ironical as it may seem, respondent herself
undermined her very own case. As it were, she made certain judicial admission negating her
own assertion as well as the appellate courts conclusion - that Francisco was legally married to
Genoveva. As may be recalled, respondent had declared that her mother Genoveva died in 1988,
implying, quite clearly, that when Francisco contracted marriage with petitioner Belen S.
Angeles in 1948, Genoveva and Francisco were already spouses. Now, then, if, as respondent
maintained despite utter lack of evidence, that Genoveva Mercado and Francisco were married in
1938, it follows that the marriage of Francisco to petitioner Belen Angeles in 1948, or prior to
Genovevas death, would necessarily have to be bigamous, hence void,[24] in which case
petitioner could not be, as respondent alleged in her petition for letters of administration, a
surviving spouse of the decedent. We quote the pertinent allegation:

4. The surviving heirs of decedent are the petitioner [Corazon] herself

who is 58 years old, and BELEN S. Angeles, the surviving spouse of deceased
Francisco M. Angeles by his second marriage, who is about 77 years old . . .
.YEARS OLD . . . (Emphasis and word in bracket added)
 We can concede, because Article 172 of the Family Code appears to say so, that the
legitimate filiation of a child can be established by any of the modes therein defined even
without direct evidence of the marriage of his/her supposed parents. Said article 172 reads:

Art. 172. The filiation of legitimate children is established by any of the following:

1. The record of birth appearing in the civil register or a final

judgments; or

2. An admission of legitimate filiation in a public document or

a private handwritten instrument and signed by the parent
concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be

proved by:

1. The open and continuous possession of the status of a

legitimate child; or

2. Any other means allowed by the Rules of Court and special

laws.

Here, respondent presented, in support of her claim of legitimacy, a copy of her Birth
Certificate dated November 23, 1939 issued by the Civil Registrar of the City of Manila (Exh.
E). In it, her birth was recorded as the legitimate child of Francisco Angeles and Genoveva
Mercado. And the word married is written in the certificate to indicate the union of Francisco
and Genoveva.

Petitioner, however, contends, citing jurisprudence, that [I]t was error for the Court of
Appeals to have ruled . . . that [respondents] Birth Certificate indubitably establishes that she is
the legitimate daughter of Francisco and Genoveva who are legally married.

The contention commends itself for concurrence. The reason is as simple as it is

elementary: the Birth Certificate presented was not signed by Francisco against whom legitimate
filiation is asserted. Not even by Genoveva. It was signed by the attending physician, one
Rebecca De Guzman, who certified to having attended the birth of a child. Such certificate, albeit
considered a public record of a private document is, under Section 23, Rule 132 of the Rules of
Court, evidence only of the fact which gave rise to its execution: the fact of birth of a child.[25]
Jurisprudence teaches that a birth certificate, to be considered as validating proof of paternity and
as an instrument of recognition, must be signed by the father and mother jointly, or by the mother
alone if the father refuses.[26] Dr. Arturo Tolentino, commenting on the probative value of the
entries in a certificate of birth, wrote:

xxx if the alleged father did not intervene in the making of the birth
certificate, the putting of his name by the mother or doctor or registrar is void; the
signature of the alleged father is necessary.[27]

The conclusion reached by the Court of Appeals that the Birth Certificate of respondent,
unsigned as it were by Francisco and Genoveva, establishes and indubitably at that - not
only respondents filiation to Francisco but even her being a legitimate daughter of Francisco
and Genoveva, taxes credulity to the limit. In a very real sense, the appellate court regarded such
certificate as defining proof of filiation, and not just filiation but of legitimate filiation, by
inferring from it that Francisco and Genoveva are legally married. In the apt words of petitioner,
the appellate court, out of a Birth Certificate signed by a physician who merely certified having
attended the birth of a child who was born alive at 3:50 P.M. , created a marriage that of
Francisco and Genoveva, and filiation (that said child) is the daughter of Francisco[28]

It cannot be over-emphasized that the legitimate filiation of a child is a matter fixed by law
itself.[29] It cannot, as the decision under review seems to suggest, be made dependent on the
declaration of the attending physician or midwife, or that of the mother of the newborn child. For
then, an unwed mother, with or without the participation of a doctor or midwife, could veritably
invest legitimate status to her offspring through the simple expedient of writing the putative
fathers name in the appropriate space in the birth certificate. A long time past, this Court
cautioned against according a similar unsigned birth certificate prima facie evidentiary value of
filiation:

Give this certificate evidential relevancy, and we thereby pave the way for
any scheming unmarried mother to extort money for her child (and herself) from
any eligible bachelor or affluent pater familias. How? She simply causes the
midwife to state in the birth certificate that the newborn babe is her legitimate
offspring with that individual and the certificate will be accepted for
registration . . . . And any lawyer with sufficient imagination will realize the
exciting possibilities from such mischief of such prima facie evidence when and
if the father dies in ignorance of the fraudulent design xxx[30]

Just like her Birth Certificate, respondent can hardly derive comfort from her marriage
contract to Atty. Maglaya and from her student and government records which indicated or
purported to show that Francisco Angeles is her father. The same holds true for her wedding
pictures which showed Francisco giving respondents hands in marriage. These papers or
documents, unsigned as they are by Francisco or the execution of which he had no part, are not
sufficient evidence of filiation or recognition.[31] And needless to stress, they cannot support a
finding of the legitimate union of Francisco and Genoveva.

The argument may be advanced that the aforesaid wedding pictures, the school and
service records and the testimony of respondents witnesses lend support to her claim of enjoying
open and continuous possession of the status of a child of Francisco. The Court can even concede
that respondent may have been the natural child of Francisco with Genoveva. Unfortunately,
however, that angle is not an, or at issue in the case before us. For, respondent peremptorily
predicated her petition for letters of administration on her being a legitimate child of Francisco
who was legally married to her mother, Genoveva, propositions which we have earlier refuted
herein.

If on the foregoing score alone, this Court could very well end this disposition were it not
for another compelling consideration which petitioner has raised and which we presently take
judicially notice of.

As may be recalled, respondent, during the pendency of the proceedings at the trial court,
filed with the Court of Appeals a petition for the annulment of the decision of the RTC Caloocan
granting the petition of spouses Francisco Angeles and petitioner Belen S. Angeles for the
adoption of Concesa A. Yamat and two others. In that petition, docketed with the appellate court
as CA-G.R. SP No. 47832 and captioned Aleli Corazon Angeles Maglaya vs. Hon Jaime T.
Hamoy, Consesa A. Yamat, Teodora A. Santos, Franco Angeles and Belen S. Angeles,
respondent alleged that as legitimate daughter of Francisco, she should have been notified of the
adoption proceedings.
 Following a legal skirmish, the Court of Appeals referred the aforementioned annulment
case to RTC, Caloocan for reception of evidence. Eventually, in a Decision[32] dated December
17, 2003, the Court of Appeals dismissed CA-G.R. SP No. 47832 on the ground, inter alia, that
herein respondent is not, contrary to her claim, a legitimate daughter of Francisco, nor a child
of a lawful wedlock between Francisco M. Angeles and Genoveva Y. Mercado. Wrote the
appellate court in that case:

Petitioner [Aleli Corazon Maglaya] belabors with repetitious persistence

the argument that she is a legitimate child or the only daughter of Francisco M.
Angeles and Genoveva Y. Mercado . . . .

In the case at bench, other than the self-serving declaration of the

petitioner, there is nothing in the record to support petitioners claim that she is
indeed a legitimate child of the late Francisco M. Angeles and Genoveva Y.
Mercado. xxx In other words, Francisco M. Angeles was never married before or
at anytime prior to his marriage to Belen Sagad, contrary to the claim of petitioner
that Francisco M. Angeles and Genoveva Y. Mercado were married in 1938

While petitioner may have submitted certifications to the effect that the
records of marriages during the war years . . . were totally destroyed, no
secondary evidence was presented by petitioner to prove the existence of the
marriage between Francisco M. Angeles and Genoveva Y. Mercado, even as no
witness was presented to confirm the celebration of such marriage . . . .

Petitioner presented pictures. x x x However, it is already settled law that

photographs are not sufficient evidence of filiation or acknowledgment.

To be sure, very little comfort is provided by petitioners birth certificate

and even her marriage contract.. . . Reason: These documents were not signed
 by Francisco . . . . Equally inconsequential are petitioners school records . . . . all
these lacked the signatures of both Francisco and Genoveva . . . .

xxx xxx xxx

Having failed to prove that she is the legitimate daughter or

acknowledged natural child of the late Francisco M. Angeles, petitioner cannot be
a real party in interest in the adoption proceedings, as her consent thereto is not
essential or required. (Emphasis in the original; words in bracket added)

Significantly, the aforesaid December 17, 2003 Decision of the appellate court in CA-
G.R. SP No.47832 was effectively affirmed by this Court via its Resolution dated August 9, 2004
in G.R. No. 163124, denying Aleli Corazon Maglayas petition for Review on Certiorari,[33]
and Resolution dated October 20, 2004,[34] denying with FINALITY her motion for
reconsideration. Another Resolution dated January 24, 2005 resolved to NOTE WITHOUT
ACTION Maglayas second motion for reconsideration.

In the light of the ruling of the Court of Appeals in CA-G.R. SP No. 47832, as affirmed
with finality by this Court in G.R. No. 163124, there can be no serious objection to applying in
this case the rule on conclusiveness of judgment,[35] one of two (2) concepts embraced in the
res judicata principle. Following the rule on conclusiveness of judgment, herein respondent is
precluded from claiming that she is the legitimate daughter of Francisco and Genoveva Mercado.
In fine, the issue of herein respondents legitimate filiation to Francisco and the latters marriage
to Genoveva, having been judicially determined in a final judgment by a court of competent
jurisdiction, has thereby become res judicata and may not again be resurrected or litigated
between herein petitioner and respondent or their privies in a subsequent action, regardless of the
form of the latter.[36]
 Lest it be overlooked, the same ruling of the appellate court in CA-G.R. SP No. 47832, as
sustained by this Court in G.R. No. 163124, virtually confirms the ratio of the trial courts order
of dismissal in Special Proceedings (SP) No. C-2140, i.e, that respondent failed to establish that
she is in fact a legitimate child of Francisco. Accordingly, the question of whether or not the
Motion to Dismiss[37] interposed by herein petitioner, as respondent in SP No. C-2140, is in the
nature of a demurer to evidence has become moot and academic. It need not detain us any
minute further.

Finally, it should be noted that on the matter of appointment of administrator of the estate
of the deceased, the surviving spouse is preferred over the next of kin of the decedent.[38] When
the law speaks of next of kin, the reference is to those who are entitled, under the statute of
distribution, to the decedents property;[39] one whose relationship is such that he is entitled to
share in the estate as distributed,[40] or, in short, an heir. In resolving, therefore, the issue of
whether an applicant for letters of administration is a next of kin or an heir of the decedent, the
probate court perforce has to determine and pass upon the issue of filiation. A separate action
will only result in a multiplicity of suits. Upon this consideration, the trial court acted within
bounds when it looked into and pass upon the claimed relationship of respondent to the late
Francisco Angeles.

WHEREFORE, the herein assailed decision of the Court of Appeals is hereby

REVERSED and SET ASIDE, and the order of the trial court dismissing Special Proceedings
No. C-2140 REINSTATED.

G.R. No. 148220. June 15, 2005

ROSENDO HERRERA, Petitioner, vs. ROSENDO ALBA, minor, represented by his

mother ARMI A. ALBA, and HON. NIMFA CUESTA-VILCHES, Presiding Judge, Branch
48, Regional Trial Court, Manila, Respondents.
DECISION

CARPIO, J.:

The Case

This is a petition for review[1] to set aside the Decision[2] dated 29 November 2000 of the Court
of Appeals (appellate court') in CA-G.R. SP No. 59766. The appellate court affirmed two
Orders[3] issued by Branch 48 of the Regional Trial Court of Manila (trial court') in SP No. 98-
88759. The Order dated 3 February 2000 directed Rosendo Herrera (petitioner') to submit to
deoxyribonucleic acid (DNA') paternity testing, while the Order dated 8 June 2000 denied
petitioner's motion for reconsideration.

The Facts

On 14 May 1998, then thirteen-year-old Rosendo Alba (respondent'), represented by his mother
Armi Alba, filed before the trial court a petition for compulsory recognition, support and
damages against petitioner. On 7 August 1998, petitioner filed his answer with counterclaim
where he denied that he is the biological father of respondent. Petitioner also denied physical
contact with respondent's mother.

Respondent filed a motion to direct the taking of DNA paternity testing to abbreviate the
proceedings. To support the motion, respondent presented the testimony of Saturnina C. Halos,
Ph.D. When she testified, Dr. Halos was an Associate Professor at De La Salle University where
she taught Cell Biology. She was also head of the University of the Philippines Natural Sciences
Research Institute (UP-NSRI'), a DNA analysis laboratory. She was a former professor at the
University of the Philippines in Diliman, Quezon City, where she developed the Molecular
Biology Program and taught Molecular Biology. In her testimony, Dr. Halos described the
process for DNA paternity testing and asserted that the test had an accuracy rate of 99.9999% in
establishing paternity.[4]

Petitioner opposed DNA paternity testing and contended that it has not gained acceptability.
Petitioner further argued that DNA paternity testing violates his right against self-incrimination.

The Ruling of the Trial Court

In an Order dated 3 February 2000, the trial court granted respondent's motion to conduct DNA
paternity testing on petitioner, respondent and Armi Alba. Thus:

In view of the foregoing, the motion of the petitioner is GRANTED and the relevant
individuals, namely: the petitioner, the minor child, and respondent are directed to undergo DNA
paternity testing in a laboratory of their common choice within a period of thirty (30) days from
receipt of the Order, and to submit the results thereof within a period of ninety (90) days from
completion. The parties are further reminded of the hearing set on 24 February 2000 for the
reception of other evidence in support of the petition.
IT IS SO OR DER ED.[5] (Emphasis in the original)

Petitioner filed a motion for reconsideration of the 3 February 2000 Order. He asserted that
'under the present circumstances, the DNA test [he] is compelled to take would be inconclusive,
irrelevant and the coercive process to obtain the requisite specimen', unconstitutional.

In an Order dated 8 June 2000, the trial court denied petitioner's motion for reconsideration.[6]

On 18 July 2000, petitioner filed before the appellate court a petition for certiorari under Rule 65
of the 1997 Rules of Civil Procedure. He asserted that the trial court rendered the Orders dated 3
February 2000 and 8 June 2000 'in excess of, or without jurisdiction and/or with grave abuse of
discretion amounting to lack or excess of jurisdiction. Petitioner further contended that there is
'no appeal nor any [other] plain, adequate and speedy remedy in the ordinary course of law.
Petitioner maintained his previous objections to the taking of DNA paternity testing. He
submitted the following grounds to support his objection:

1. Public respondent misread and misapplied the ruling in Lim vs. Court of Appeals (270
SCRA 2).

2. Public respondent ruled to accept DNA test without considering the limitations on, and
conditions precedent for the admissibility of DNA testing and ignoring the serious
constraints affecting the reliability of the test as admitted by private respondent's 'expert
witness.

3. Subject Orders lack legal and factual support, with public respondent relying on scientific
findings and conclusions unfit for judicial notice and unsupported by experts in the
field and scientific treatises.

4. Under the present circumstances the DNA testing petitioner [is] compelled to take will be
inconclusive, irrelevant and the coercive process to obtain the requisite specimen from
the petitioner, unconstitutional.[7]

The Ruling of the Court of Appeals

On 29 November 2000, the appellate court issued a decision denying the petition and affirming
the questioned Orders of the trial court. The appellate court stated that petitioner merely desires
to correct the trial court's evaluation of evidence. Thus, appeal is an available remedy for an error
of judgment that the court may commit in the exercise of its jurisdiction. The appellate court also
stated that the proposed DNA paternity testing does not violate his right against self-
incrimination because the right applies only to testimonial compulsion. Finally, the appellate
court pointed out that petitioner can still refute a possible adverse result of the DNA paternity
testing. The dispositive portion of the appellate court's decision reads:

WHEREFORE, foregoing premises considered, the Petition is hereby DENIED DUE

COURSE, and ordered dismissed, and the challenged orders of the Trial Court AFFIRMED,
with costs to Petitioner.
SO ORDERED.[8]

Petitioner moved for reconsideration, which the appellate court denied in its Resolution dated 23
May 2001.[9]

Issues

Petitioner raises the issue of whether a DNA test is a valid probative tool in this jurisdiction to
determine filiation. Petitioner asks for the conditions under which DNA technology may be
integrated into our judicial system and the prerequisites for the admissibility of DNA test results
in a paternity suit.[10]

Petitioner further submits that the appellate court gravely abused its discretion when it authorized
the trial court 'to embark in [sic] a new procedure xxx to determine filiation despite the absence
of legislation to ensure its reliability and integrity, want of official recognition as made clear in
Lim vs. Court of Appeals and the presence of technical and legal constraints in respect of [sic] its
implementation.[11] Petitioner maintains that the proposed DNA paternity testing violates his
right against self-incrimination.[12]

The Ruling of the Court

The petition has no merit.

Before discussing the issues on DNA paternity testing, we deem it appropriate to give an
overview of a paternity suit and apply it to the facts of this case. We shall consider the
requirements of the Family Code and of the Rules of Evidence to establish paternity and filiation.

An Overview of the Paternity and Filiation Suit

Filiation proceedings are usually filed not just to adjudicate paternity but also to secure a legal
right associated with paternity, such as citizenship,[13] support (as in the present case), or
inheritance. The burden of proving paternity is on the person who alleges that the putative father
is the biological father of the child. There are four significant procedural aspects of a traditional
paternity action which parties have to face: a prima facie case, affirmative defenses, presumption
of legitimacy, and physical resemblance between the putative father and child.[14]

A prima facie case exists if a woman declares that she had sexual relations with the putative
father. In our jurisdiction, corroborative proof is required to carry the burden forward and shift it
to the putative father.[15]

There are two affirmative defenses available to the putative father. The putative father may show
incapability of sexual relations with the mother, because of either physical absence or impotency.
[16] The putative father may also show that the mother had sexual relations with other men at the
time of conception.
A child born to a husband and wife during a valid marriage is presumed legitimate. [17] The
child's legitimacy may be impugned only under the strict standards provided by law.[18]

Finally, physical resemblance between the putative father and child may be offered as part of
evidence of paternity. Resemblance is a trial technique unique to a paternity proceeding.
However, although likeness is a function of heredity, there is no mathematical formula that could
quantify how much a child must or must not look like his biological father.[19] This kind of
evidence appeals to the emotions of the trier of fact.

In the present case, the trial court encountered three of the four aspects. Armi Alba, respondent's
mother, put forward a prima facie case when she asserted that petitioner is respondent's
biological father. Aware that her assertion is not enough to convince the trial court, she offered
corroborative proof in the form of letters and pictures. Petitioner, on the other hand, denied Armi
Alba's assertion. He denied ever having sexual relations with Armi Alba and stated that
respondent is Armi Alba's child with another man. Armi Alba countered petitioner's denial by
submitting pictures of respondent and petitioner side by side, to show how much they resemble
each other.

Paternity and filiation disputes can easily become credibility contests. We now look to the law,
rules, and governing jurisprudence to help us determine what evidence of incriminating acts on
paternity and filiation are allowed in this jurisdiction.

Laws, Rules, and Jurisprudence

Establishing Filiation

The relevant provisions of the Family Code provide as follows:

ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on
the same evidence as legitimate children.

xxx

ART. 172. The filiation of legitimate children is established by any of the following:

(1) The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private handwritten

instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child; or

(2) Any other means allowed by the Rules of Court and special laws.
The Rules on Evidence include provisions on pedigree. The relevant sections of Rule 130
provide:

SEC. 39. Act or declaration about pedigree.The act or declaration of a person deceased, or
unable to testify, in respect to the pedigree of another person related to him by birth or marriage,
may be received in evidence where it occurred before the controversy, and the relationship
between the two persons is shown by evidence other than such act or declaration. The word
'pedigree includes relationship, family genealogy, birth, marriage, death, the dates when and the
places where these facts occurred, and the names of the relatives. It embraces also facts of family
history intimately connected with pedigree.

SEC. 40. Family reputation or tradition regarding pedigree.The reputation or tradition existing
in a family previous to the controversy, in respect to the pedigree of any one of its members, may
be received in evidence if the witness testifying thereon be also a member of the family, either by
consanguinity or affinity. Entries in family bibles or other family books or charts, engraving on
rings, family portraits and the like, may be received as evidence of pedigree.

This Court's rulings further specify what incriminating acts are acceptable as evidence to
establish filiation. In Pe Lim v. CA ,[20] a case petitioner often cites, we stated that the issue of
paternity still has to be resolved by such conventional evidence as the relevant incriminating
verbal and written acts by the putative father. Under Article 278 of the New Civil Code,
voluntary recognition by a parent shall be made in the record of birth, a will, a statement before a
court of record, or in any authentic writing. To be effective, the claim of filiation must be made
by the putative father himself and the writing must be the writing of the putative father.[21] A
notarial agreement to support a child whose filiation is admitted by the putative father was
considered acceptable evidence.[22] Letters to the mother vowing to be a good father to the child
and pictures of the putative father cuddling the child on various occasions, together with the
certificate of live birth, proved filiation.[23] However, a student permanent record, a written
consent to a father's operation, or a marriage contract where the putative father gave consent,
cannot be taken as authentic writing.[24] Standing alone, neither a certificate of baptism[25] nor
family pictures[26] are sufficient to establish filiation.

So far, the laws, rules, and jurisprudence seemingly limit evidence of paternity and filiation to
incriminating acts alone. However, advances in science show that sources of evidence of
paternity and filiation need not be limited to incriminating acts. There is now almost universal
scientific agreement that blood grouping tests are conclusive on non-paternity, although
inconclusive on paternity. [27]

In Co Tao v. Court of Appeals ,[28] the result of the blood grouping test showed that the putative
father was a 'possible father of the child. Paternity was imputed to the putative father after the
possibility of paternity was proven on presentation during trial of facts and circumstances other
than the results of the blood grouping test.

In Jao v. Court of Appeals ,[29] the child, the mother, and the putative father agreed to submit
themselves to a blood grouping test. The National Bureau of Investigation (NBI') conducted the
test, which indicated that the child could not have been the possible offspring of the mother and
the putative father. We held that the result of the blood grouping test was conclusive on the non-
paternity of the putative father.

The present case asks us to go one step further. We are now asked whether DNA analysis may be
admitted as evidence to prove paternity.

DNA Analysis as Evidence

DNA is the fundamental building block of a person's entire genetic make-up. DNA is found in all
human cells and is the same in every cell of the same person. Genetic identity is unique. Hence, a
person's DNA profile can determine his identity.[30]

DNA analysis is a procedure in which DNA extracted from a biological sample obtained from an
individual is examined. The DNA is processed to generate a pattern, or a DNA profile, for the
individual from whom the sample is taken. This DNA profile is unique for each person, except
for identical twins.[31] We quote relevant portions of the trial court's 3 February 2000 Order with
approval:

Everyone is born with a distinct genetic blueprint called DNA (deoxyribonucleic acid). It is
exclusive to an individual (except in the rare occurrence of identical twins that share a single,
fertilized egg), and DNA is unchanging throughout life. Being a component of every cell in the
human body, the DNA of an individual's blood is the very DNA in his or her skin cells, hair
follicles, muscles, semen, samples from buccal swabs, saliva, or other body parts.

The chemical structure of DNA has four bases. They are known as A (adenine), G (guanine), C
(cystosine) and T (thymine). The order in which the four bases appear in an individual's DNA
determines his or her physical makeup. And since DNA is a double-stranded molecule, it is
composed of two specific paired bases, A-T or T-A and G-C or C-G. These are called 'genes.

Every gene has a certain number of the above base pairs distributed in a particular sequence. This
gives a person his or her genetic code. Somewhere in the DNA framework, nonetheless, are
sections that differ. They are known as 'polymorphic loci, which are the areas analyzed in DNA
typing (profiling, tests, fingerprinting, or analysis/DNA fingerprinting/genetic tests or
fingerprinting). In other words, DNA typing simply means determining the 'polymorphic loci.

How is DNA typing performed? From a DNA sample obtained or extracted, a molecular
biologist may proceed to analyze it in several ways. There are five (5) techniques to conduct
DNA typing. They are: the RFLP (restriction fragment length polymorphism); 'reverse dot blot
or HLA DQ a/Pm loci which was used in 287 cases that were admitted as evidence by 37 courts
in the U.S. as of November 1994; mtDNA process; VNTR (variable number tandem repeats);
and the most recent which is known as the PCR-([polymerase] chain reaction) based STR (short
tandem repeats) method which, as of 1996, was availed of by most forensic laboratories in the
world. PCR is the process of replicating or copying DNA in an evidence sample a million times
through repeated cycling of a reaction involving the so-called DNA polymerize enzyme. STR, on
the other hand, takes measurements in 13 separate places and can match two (2) samples with a
reported theoretical error rate of less than one (1) in a trillion.
Just like in fingerprint analysis, in DNA typing, 'matches' are determined. To illustrate, when
DNA or fingerprint tests are done to identify a suspect in a criminal case, the evidence collected
from the crime scene is compared with the 'known print. If a substantial amount of the
identifying features are the same, the DNA or fingerprint is deemed to be a match. But then,
even if only one feature of the DNA or fingerprint is different, it is deemed not to have come
from the suspect.

As earlier stated, certain regions of human DNA show variations between people. In each of
these regions, a person possesses two genetic types called 'allele', one inherited from each parent.
In [a] paternity test, the forensic scientist looks at a number of these variable regions in an
individual to produce a DNA profile. Comparing next the DNA profiles of the mother and child,
it is possible to determine which half of the child's DNA was inherited from the mother. The
other half must have been inherited from the biological father. The alleged father's profile is then
examined to ascertain whether he has the DNA types in his profile, which match the paternal
types in the child. If the man's DNA types do not match that of the child, the man is excluded as
the father. If the DNA types match, then he is not excluded as the father.[32] (Emphasis in the
original)

Although the term 'DNA testing was mentioned in the 1995 case of People v. Teehankee, Jr .,
[33] it was only in the 2001 case of Tijing v. Court of Appeals [34] that more than a passing
mention was given to DNA analysis. In Tijing , we issued a writ of habeas corpus against
respondent who abducted petitioners' youngest son. Testimonial and documentary evidence and
physical resemblance were used to establish parentage. However, we observed that:

Parentage will still be resolved using conventional methods unless we adopt the modern and
scientific ways available. Fortunately, we have now the facility and expertise in using DNA test
for identification and parentage testing. The University of the Philippines Natural Science
Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA
typing using short tandem repeat (STR) analysis. xxx For it was said, that courts should apply the
results of science when completely obtained in aid of situations presented, since to reject said
result is to deny progress. Though it is not necessary in this case to resort to DNA testing, in [the]
future it would be useful to all concerned in the prompt resolution of parentage and identity
issues.

Admissibility of

DNA Analysis as Evidence

The 2002 case of People v. Vallejo [35] discussed DNA analysis as evidence. This may be
considered a 180 degree turn from the Court's wary attitude towards DNA testing in the 1997 Pe
Lim case,[36] where we stated that 'DNA, being a relatively new science, xxx has not yet been
accorded official recognition by our courts. In Vallejo , the DNA profile from the vaginal swabs
taken from the rape victim matched the accused's DNA profile. We affirmed the accused's
conviction of rape with homicide and sentenced him to death. We declared:
In assessing the probative value of DNA evidence, therefore, courts should consider, among
other things, the following data: how the samples were collected, how they were handled, the
possibility of contamination of the samples, the procedure followed in analyzing the samples,
whether the proper standards and procedures were followed in conducting the tests, and the
qualification of the analyst who conducted the tests.[37]

Vallejo discussed the probative value, not admissibility, of DNA evidence. By 2002, there was no
longer any question on the validity of the use of DNA analysis as evidence. The Court moved
from the issue of according 'official recognition to DNA analysis as evidence to the issue of
observance of procedures in conducting DNA analysis.

In 2004, there were two other cases that had a significant impact on jurisprudence on DNA
testing: People v. Yatar [38] and In re: The Writ of Habeas Corpus for Reynaldo de Villa .[39]
In Yatar , a match existed between the DNA profile of the semen found in the victim and the
DNA profile of the blood sample given by appellant in open court. The Court, following
Vallejo's footsteps, affirmed the conviction of appellant because the physical evidence,
corroborated by circumstantial evidence, showed appellant guilty of rape with homicide. In De
Villa , the convict-petitioner presented DNA test results to prove that he is not the father of the
child conceived at the time of commission of the rape. The Court ruled that a difference between
the DNA profile of the convict-petitioner and the DNA profile of the victim's child does not
preclude the convict-petitioner's commission of rape.

In the present case, the various pleadings filed by petitioner and respondent refer to two United
States cases to support their respective positions on the admissibility of DNA analysis as
evidence: Frye v. U.S . [40] and Daubert v. Merrell Dow Pharmaceuticals .[41] In Frye v. U.S. ,
the trial court convicted Frye of murder. Frye appealed his conviction to the Supreme Court of
the District of Columbia. During trial, Frye's counsel offered an expert witness to testify on the
result of a systolic blood pressure deception test[42] made on defendant. The state Supreme
Court affirmed Frye's conviction and ruled that 'the systolic blood pressure deception test has not
yet gained such standing and scientific recognition among physiological and psychological
authorities as would justify the courts in admitting expert testimony deduced from the discovery,
development, and experiments thus far made. The Frye standard of general acceptance states as
follows:

Just when a scientific principle or discovery crosses the line between the experimental and
demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of
the principle must be recognized, and while courts will go a long way in admitting expert
testimony deduced from a well recognized scientific principle or discovery, the thing from which
the deduction is made must be sufficiently established to have gained general acceptance in the
particular field in which it belongs.

In 1989, State v. Schwartz [43] modified the Frye standard. Schwartz was charged with stabbing
and murder. Bloodstained articles and blood samples of the accused and the victim were
submitted for DNA testing to a government facility and a private facility. The prosecution
introduced the private testing facility's results over Schwartz's objection. One of the issues
brought before the state Supreme Court included the admissibility of DNA test results in a
criminal proceeding. The state Supreme Court concluded that:

While we agree with the trial court that forensic DNA typing has gained general acceptance in
the scientific community, we hold that admissibility of specific test results in a particular case
hinges on the laboratory's compliance with appropriate standards and controls, and the
availability of their testing data and results.[44]

In 1993, Daubert v. Merrell Dow Pharmaceuticals, Inc. [45] further modified the Frye-
Schwartz standard. Daubert was a product liability case where both the trial and appellate courts
denied the admissibility of an expert's testimony because it failed to meet the Frye standard of
'general acceptance. The United States Supreme Court ruled that in federal trials, the Federal
Rules of Evidence have superseded the Frye standard. Rule 401 defines relevant evidence, while
Rule 402 provides the foundation for admissibility of evidence. Thus:

Rule 401. 'Relevant evidence is defined as that which has any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.

Rule 402. All relevant evidence is admissible, except as otherwise provided by the Constitution
of the United States, by Act of Congress, by these rules, or by other rules prescribed by the
Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

Rule 702 of the Federal Rules of Evidence governing expert testimony provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Daubert cautions that departure from the Frye standard of general acceptance does not mean that
the Federal Rules do not place limits on the admissibility of scientific evidence. Rather, the judge
must ensure that the testimony's reasoning or method is scientifically valid and is relevant to the
issue. Admissibility would depend on factors such as (1) whether the theory or technique can be
or has been tested; (2) whether the theory or technique has been subjected to peer review and
publication; (3) the known or potential rate of error; (4) the existence and maintenance of
standards controlling the technique's operation; and (5) whether the theory or technique is
generally accepted in the scientific community.

Another product liability case, Kumho Tires Co. v. Carmichael , [46] further modified the
Daubert standard. This led to the amendment of Rule 702 in 2000 and which now reads as
follows:

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of an opinion or otherwise, if
(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the principles and methods
reliably to the facts of the case.

We now determine the applicability in this jurisdiction of these American cases. Obviously,
neither the Frye-Schwartz standard nor the Daubert-Kumho standard is controlling in the
Philippines.[47] At best, American jurisprudence merely has a persuasive effect on our decisions.
Here, evidence is admissible when it is relevant to the fact in issue and is not otherwise excluded
by statute or the Rules of Court.[48] Evidence is relevant when it has such a relation to the fact in
issue as to induce belief in its existence or non-existence.[49] Section 49 of Rule 130, which
governs the admissibility of expert testimony, provides as follows:

The opinion of a witness on a matter requiring special knowledge, skill, experience or training
which he is shown to possess may be received in evidence.

This Rule does not pose any legal obstacle to the admissibility of DNA analysis as evidence.
Indeed, even evidence on collateral matters is allowed 'when it tends in any reasonable degree to
establish the probability or improbability of the fact in issue.[50]

Indeed, it would have been convenient to merely refer petitioner to our decisions in Tijing,
Vallejo and Yatar to illustrate that DNA analysis is admissible as evidence. In our jurisdiction,
the restrictive tests for admissibility established by Frye-Schwartz and Daubert-Kumho go into
the weight of the evidence.

Probative Value of

DNA Analysis as Evidence

Despite our relatively liberal rules on admissibility, trial courts should be cautious in giving
credence to DNA analysis as evidence. We reiterate our statement in Vallejo :

In assessing the probative value of DNA evidence, therefore, courts should consider, among
other things, the following data: how the samples were collected, how they were handled, the
possibility of contamination of the samples, the procedure followed in analyzing the samples,
whether the proper standards and procedures were followed in conducting the tests, and the
qualification of the analyst who conducted the tests. [51]

We also repeat the trial court's explanation of DNA analysis used in paternity cases:

In [a] paternity test, the forensic scientist looks at a number of these variable regions in an
individual to produce a DNA profile. Comparing next the DNA profiles of the mother and child,
it is possible to determine which half of the child's DNA was inherited from the mother. The
other half must have been inherited from the biological father. The alleged father's profile is then
examined to ascertain whether he has the DNA types in his profile, which match the paternal
types in the child. If the man's DNA types do not match that of the child, the man is excluded as
the father. If the DNA types match, then he is not excluded as the father.[52]
It is not enough to state that the child's DNA profile matches that of the putative father. A
complete match between the DNA profile of the child and the DNA profile of the putative father
does not necessarily establish paternity. For this reason, following the highest standard adopted
in an American jurisdiction,[53] trial courts should require at least 99.9% as a minimum value of
the Probability of Paternity (W') prior to a paternity inclusion. W is a numerical estimate for the
likelihood of paternity of a putative father compared to the probability of a random match of two
unrelated individuals. An appropriate reference population database, such as the Philippine
population database, is required to compute for W. Due to the probabilistic nature of paternity
inclusions, W will never equal to 100%. However, the accuracy of W estimates is higher when
the putative father, mother and child are subjected to DNA analysis compared to those conducted
between the putative father and child alone.[54]

DNA analysis that excludes the putative father from paternity should be conclusive proof of non-
paternity. If the value of W is less than 99.9%, the results of the DNA analysis should be
considered as corroborative evidence. If the value of W is 99.9% or higher, then there is
refutable presumption of paternity.[55] This refutable presumption of paternity should be
subjected to the Vallejo standards.

Right Against

Self-Incrimination

Section 17, Article 3 of the 1987 Constitution provides that 'no person shall be compelled to be a
witness against himself. Petitioner asserts that obtaining samples from him for DNA testing
violates his right against self-incrimination. Petitioner ignores our earlier pronouncements that
the privilege is applicable only to testimonial evidence. Again, we quote relevant portions of the
trial court's 3 February 2000 Order with approval:

Obtaining DNA samples from an accused in a criminal case or from the respondent in a paternity
case, contrary to the belief of respondent in this action, will not violate the right against self-
incrimination. This privilege applies only to evidence that is 'communicative in essence taken
under duress (People vs. Olvis, 154 SCRA 513, 1987). The Supreme Court has ruled that the
right against self-incrimination is just a prohibition on the use of physical or moral compulsion to
extort communication (testimonial evidence) from a defendant, not an exclusion of evidence
taken from his body when it may be material. As such, a defendant can be required to submit to a
test to extract virus from his body (as cited in People vs. Olvis, Supra); the substance emitting
from the body of the accused was received as evidence for acts of lasciviousness (US vs. Tan
Teng, 23 Phil. 145); morphine forced out of the mouth was received as proof (US vs. Ong Siu
Hong, 36 Phil. 735); an order by the judge for the witness to put on pair of pants for size was
allowed (People vs. Otadora, 86 Phil. 244); and the court can compel a woman accused of
adultery to submit for pregnancy test (Villaflor vs. Summers, 41 Phil. 62), since the gist of the
privilege is the restriction on 'testimonial compulsion. [56]

The policy of the Family Code to liberalize the rule on the investigation of the paternity and
filiation of children, especially of illegitimate children, is without prejudice to the right of the
putative parent to claim his or her own defenses.[57] Where the evidence to aid this investigation
is obtainable through the facilities of modern science and technology, such evidence should be
considered subject to the limits established by the law, rules, and jurisprudence.

WHEREFORE, we DISMISS the petition. We A FFIRM the Decision of the Court of Appeals
dated 29 November 2000 in CA-G.R. SP No. 59766. We also AFFIRM the Orders dated 3
February 2000 and 8 June 2000 issued by Branch 48 of the Regional Trial Court of Manila in
Civil Case No. SP-98-88759.

[G.R. No. 162571. June 15, 2005]

ARNEL L. AGUSTIN, petitioner, vs. HON. COURT OF APPEALS AND MINOR MARTIN
JOSE PROLLAMANTE, REPRESENTED BY HIS MOTHER/GUARDIAN FE ANGELA
PROLLAMANTE, respondents.

DECISION

CORONA, J.:

At issue in this petition for certiorari [1] is whether or not the Court of Appeals (CA) gravely
erred in exercising its discretion, amounting to lack or excess of jurisdiction, in issuing a
decision[2] and resolution[3] upholding the resolution and order of the trial court,[4] which
denied petitioners motion to dismiss private respondents complaint for support and directed the
parties to submit themselves to deoxyribonucleic acid (DNA) paternity testing.

Respondents Fe Angela and her son Martin Prollamante sued Martins alleged biological father,
petitioner Arnel L. Agustin, for support and support pendente lite before the Regional Trial Court
(RTC) of Quezon City, Branch 106.[5]

In their complaint, respondents alleged that Arnel courted Fe in 1992, after which they entered
into an intimate relationship. Arnel supposedly impregnated Fe on her 34th birthday on November
10, 1999. Despite Arnels insistence on abortion, Fe decided otherwise and gave birth to their
child out of wedlock, Martin, on August 11, 2000 at the Capitol Medical Hospital in Quezon
City. The babys birth certificate was purportedly signed by Arnel as the father. Arnel shouldered
the pre-natal and hospital expenses but later refused Fes repeated requests for Martins support
despite his adequate financial capacity and even suggested to have the child committed for
adoption. Arnel also denied having fathered the child.

On January 19, 2001, while Fe was carrying five-month old Martin at the Capitol Hills Golf and
Country Club parking lot, Arnel sped off in his van, with the open car door hitting Fes leg. This
incident was reported to the police. In July 2001, Fe was diagnosed with leukemia and has, since
then, been undergoing chemotherapy. On March 5, 2002, Fe and Martin sued Arnel for support.
[6]

In his amended answer, Arnel denied having sired Martin because his affair and intimacy with Fe
had allegedly ended in 1998, long before Martins conception. He claimed that Fe had at least
one other secret lover. Arnel admitted that their relationship started in 1993 but he never really
fell in love with (Fe) not only because (she) had at least one secret lover, a certain Jun, but also
because she proved to be scheming and overly demanding and possessive. As a result, theirs was
a stormy on-and-off affair. What started as a romantic liaison between two consenting adults
eventually turned out to be a case of fatal attraction where (Fe) became so obsessed with (Arnel),
to the point of even entertaining the idea of marrying him, that she resorted to various devious
ways and means to alienate (him) from his wife and family. Unable to bear the prospect of
losing his wife and children, Arnel terminated the affair although he still treated her as a friend
such as by referring potential customers to the car aircon repair shop[7] where she worked.
Later on, Arnel found out that Fe had another erstwhile secret lover. In May 2000, Arnel and his
entire family went to the United States for a vacation. Upon their return in June 2000, Arnel
learned that Fe was telling people that he had impregnated her. Arnel refused to acknowledge the
child as his because their last intimacy was sometime in 1998.[8] Exasperated, Fe started
calling Arnels wife and family. On January 19, 2001, Fe followed Arnel to the Capitol Hills Golf
and Country Club parking lot to demand that he acknowledge Martin as his child. According to
Arnel, he could not get through Fe and the discussion became so heated that he had no
alternative but to move on but without bumping or hitting any part of her body.[9] Finally,
Arnel claimed that the signature and the community tax certificate (CTC) attributed to him in the
acknowledgment of Martins birth certificate were falsified. The CTC erroneously reflected his
marital status as single when he was actually married and that his birth year was 1965 when it
should have been 1964.[10]

In his pre-trial brief filed on May 17, 2002, Arnel vehemently denied having sired Martin but
expressed willingness to consider any proposal to settle the case.[11]

On July 23, 2002, Fe and Martin moved for the issuance of an order directing all the parties to
submit themselves to DNA paternity testing pursuant to Rule 28 of the Rules of Court.[12]

Arnel opposed said motion by invoking his constitutional right against self-incrimination.[13] He
also moved to dismiss the complaint for lack of cause of action, considering that his signature on
the birth certificate was a forgery and that, under the law, an illegitimate child is not entitled to
support if not recognized by the putative father.[14] In his motion, Arnel manifested that he had
filed criminal charges for falsification of documents against Fe (I.S. Nos. 02-5723 and 02-7192)
and a petition for cancellation of his name appearing in Martins birth certificate (docketed as
Civil Case No. Q-02-46669). He attached the certification of the Philippine National Police
Crime Laboratory that his signature in the birth certificate was forged.

The trial court denied the motion to dismiss the complaint and ordered the parties to submit
themselves to DNA paternity testing at the expense of the applicants. The Court of Appeals
affirmed the trial court.

Thus, this petition.

In a nutshell, petitioner raises two issues: (1) whether a complaint for support can be converted
to a petition for recognition and (2) whether DNA paternity testing can be ordered in a
proceeding for support without violating petitioners constitutional right to privacy and right
against self-incrimination.[15]
The petition is without merit.

First of all, the trial court properly denied the petitioners motion to dismiss because the private
respondents complaint on its face showed that they had a cause of action against the petitioner.
The elements of a cause of action are: (1) the plaintiffs primary right and the defendants
corresponding primary duty, and (2) the delict or wrongful act or omission of the defendant, by
which the primary right and duty have been violated. The cause of action is determined not by
the prayer of the complaint but by the facts alleged.[16]

In the complaint, private respondents alleged that Fe had amorous relations with the petitioner, as
a result of which she gave birth to Martin out of wedlock. In his answer, petitioner admitted that
he had sexual relations with Fe but denied that he fathered Martin, claiming that he had ended
the relationship long before the childs conception and birth. It is undisputed and even admitted
by the parties that there existed a sexual relationship between Arnel and Fe. The only remaining
question is whether such sexual relationship produced the child, Martin. If it did, as respondents
have alleged, then Martin should be supported by his father Arnel. If not, petitioner and Martin
are strangers to each other and Martin has no right to demand and petitioner has no obligation to
give support.

Preliminaries aside, we now tackle the main issues.

Petitioner refuses to recognize Martin as his own child and denies the genuineness and
authenticity of the childs birth certificate which he purportedly signed as the father. He also
claims that the order and resolution of the trial court, as affirmed by the Court of Appeals,
effectively converted the complaint for support to a petition for recognition, which is supposedly
proscribed by law. According to petitioner, Martin, as an unrecognized child, has no right to ask
for support and must first establish his filiation in a separate suit under Article 283[17] in relation
to Article 265[18] of the Civil Code and Section 1, Rule 105[19] of the Rules of Court.

The petitioners contentions are without merit.

The assailed resolution and order did not convert the action for support into one for recognition
but merely allowed the respondents to prove their cause of action against petitioner who had
been denying the authenticity of the documentary evidence of acknowledgement. But even if the
assailed resolution and order effectively integrated an action to compel recognition with an
action for support, such was valid and in accordance with jurisprudence. In Tayag v. Court of
Appeals,[20] we allowed the integration of an action to compel recognition with an action to
claim ones inheritance:

In Paulino, we held that an illegitimate child, to be entitled to support and successional rights
from the putative or presumed parent, must prove his filiation to the latter. We also said that it is
necessary to allege in the complaint that the putative father had acknowledged and recognized
the illegitimate child because such acknowledgment is essential to and is the basis of the right to
inherit. There being no allegation of such acknowledgment, the action becomes one to compel
recognition which cannot be brought after the death of the putative father. The ratio decidendi in
Paulino, therefore, is not the absence of a cause of action for failure of the petitioner to allege the
fact of acknowledgment in the complaint, but the prescription of the action.

Applying the foregoing principles to the case at bar, although petitioner contends that the
complaint filed by herein private respondent merely alleges that the minor Chad Cuyugan is an
illegitimate child of the deceased and is actually a claim for inheritance, from the allegations
therein the same may be considered as one to compel recognition. Further, that the two causes
of action, one to compel recognition and the other to claim inheritance, may be joined in
one complaint is not new in our jurisprudence.

As early as [1922] we had occasion to rule thereon in Briz vs. Briz, et al. (43 Phil. 763 [1922])
wherein we said:

The question whether a person in the position of the present plaintiff can in any event maintain a
complex action to compel recognition as a natural child and at the same time to obtain ulterior
relief in the character of heir, is one which in the opinion of this court must be answered in the
affirmative, provided always that the conditions justifying the joinder of the two distinct causes
of action are present in the particular case. In other words, there is no absolute necessity
requiring that the action to compel acknowledgment should have been instituted and
prosecuted to a successful conclusion prior to the action in which that same plaintiff seeks
additional relief in the character of heir. Certainly, there is nothing so peculiar to the action to
compel acknowledgment as to require that a rule should be here applied different from that
generally applicable in other cases. x x x

The conclusion above stated, though not heretofore explicitly formulated by this court, is
undoubtedly to some extent supported by our prior decisions. Thus, we have held in numerous
cases, and the doctrine must be considered well settled, that a natural child having a right
to compel acknowledgment, but who has not been in fact legally acknowledged, may
maintain partition proceedings for the division of the inheritance against his coheirs x x x;
and the same person may intervene in proceedings for the distribution of the estate of his
deceased natural father, or mother x x x. In neither of these situations has it been thought
necessary for the plaintiff to show a prior decree compelling acknowledgment. The obvious
reason is that in partition suits and distribution proceedings the other persons who might take by
inheritance are before the court; and the declaration of heirship is appropriate to such
proceedings. (Underscoring supplied)

Although the instant case deals with support rather than inheritance, as in Tayag, the basis or
rationale for integrating them remains the same. Whether or not respondent Martin is entitled to
support depends completely on the determination of filiation. A separate action will only result
in a multiplicity of suits, given how intimately related the main issues in both cases are. To
paraphrase Tayag, the declaration of filiation is entirely appropriate to these proceedings.

On the second issue, petitioner posits that DNA is not recognized by this Court as a conclusive
means of proving paternity. He also contends that compulsory testing violates his right to privacy
and right against self-incrimination as guaranteed under the 1987 Constitution. These
contentions have no merit.
Given that this is the very first time that the admissibility of DNA testing as a means for
determining paternity has actually been the focal issue in a controversy, a brief historical sketch
of our past decisions featuring or mentioning DNA testing is called for.

In the 1995 case of People v. Teehankee[21] where the appellant was convicted of murder on the
testimony of three eyewitnesses, we stated as an obiter dictum that while eyewitness
identification is significant, it is not as accurate and authoritative as the scientific forms of
identification evidence such as the fingerprint or the DNA test result (emphasis supplied).

Our faith in DNA testing, however, was not quite so steadfast in the previous decade. In Pe Lim
v. Court of Appeals,[22] promulgated in 1997, we cautioned against the use of DNA because
DNA, being a relatively new science, (had) not as yet been accorded official recognition by our
courts. Paternity (would) still have to be resolved by such conventional evidence as the relevant
incriminating acts, verbal and written, by the putative father.

In 2001, however, we opened the possibility of admitting DNA as evidence of parentage, as

enunciated in Tijing v. Court of Appeals:[23]

A final note. Parentage will still be resolved using conventional methods unless we adopt the
modern and scientific ways available. Fortunately, we have now the facility and expertise in
using DNA test for identification and parentage testing. The University of the Philippines Natural
Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to
conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on the fact
that the DNA of a child/person has two (2) copies, one copy from the mother and the other from
the father. The DNA from the mother, the alleged father and child are analyzed to establish
parentage. Of course, being a novel scientific technique, the use of DNA test as evidence is still
open to challenge. Eventually, as the appropriate case comes, courts should not hesitate to rule
on the admissibility of DNA evidence. For it was said, that courts should apply the results of
science when competently obtained in aid of situations presented, since to reject said result is to
deny progress.

The first real breakthrough of DNA as admissible and authoritative evidence in Philippine
jurisprudence came in 2002 with our en banc decision in People v. Vallejo[24] where the rape
and murder victims DNA samples from the bloodstained clothes of the accused were admitted in
evidence. We reasoned that the purpose of DNA testing (was) to ascertain whether an
association exist(ed) between the evidence sample and the reference sample. The samples
collected (were) subjected to various chemical processes to establish their profile.

A year later, in People v. Janson,[25] we acquitted the accused charged with rape for lack of
evidence because doubts persist(ed) in our mind as to who (were) the real malefactors. Yes, a
complex offense (had) been perpetrated but who (were) the perpetrators? How we wish we had
DNA or other scientific evidence to still our doubts!

In 2004, in Tecson, et al. v. COMELEC[26] where the Court en banc was faced with the issue of
filiation of then presidential candidate Fernando Poe Jr., we stated:
In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be
difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the
illegitimate child and any physical residue of the long dead parent could be resorted to. A
positive match would clear up filiation or paternity. In Tijing vs. Court of Appeals, this Court
has acknowledged the strong weight of DNA testing

Moreover, in our en banc decision in People v. Yatar,[27] we affirmed the conviction of the
accused for rape with homicide, the principal evidence for which included DNA test results. We
did a lengthy discussion of DNA, the process of DNA testing and the reasons for its admissibility
in the context of our own Rules of Evidence:

Deoxyribonucleic Acid, or DNA, is a molecule that encodes the genetic information in all living
organisms. A persons DNA is the same in each cell and it does not change throughout a persons
lifetime; the DNA in a persons blood is the same as the DNA found in his saliva, sweat, bone,
the root and shaft of hair, earwax, mucus, urine, skin tissue, and vaginal and rectal cells. Most
importantly, because of polymorphisms in human genetic structure, no two individuals have the
same DNA, with the notable exception of identical twins.

xxx xxx xxx

In assessing the probative value of DNA evidence, courts should consider, inter alia, the
following factors: how the samples were collected, how they were handled, the possibility of
contamination of the samples, the procedure followed in analyzing the samples, whether proper
standards and procedures were followed in conducting the tests, and the qualification of the
analyst who conducted the tests.

In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly qualified by the prosecution
as an expert witness on DNA print or identification techniques. Based on Dr. de Ungrias
testimony, it was determined that the gene type and DNA profile of appellant are identical to that
of the extracts subject of examination. The blood sample taken from the appellant showed that
he was of the following gene types: vWA 15/19, TH01 7/8, DHFRP29/10 and CSF1PO 10/11,
which are identical with semen taken from the victims vaginal canal. Verily, a DNA match exists
between the semen found in the victim and the blood sample given by the appellant in open court
during the course of the trial.

Admittedly, we are just beginning to integrate these advances in science and technology in the
Philippine criminal justice system, so we must be cautious as we traverse these relatively
uncharted waters. Fortunately, we can benefit from the wealth of persuasive jurisprudence that
has developed in other jurisdictions. Specifically, the prevailing doctrine in the U.S. has proven
instructive.

In Daubert v. Merrell Dow (509 U.S. 579 (1993); 125 L. Ed. 2d 469) it was ruled that pertinent
evidence based on scientifically valid principles could be used as long as it was relevant and
reliable. Judges, under Daubert, were allowed greater discretion over which testimony they
would allow at trial, including the introduction of new kinds of scientific techniques. DNA
typing is one such novel procedure.
Under Philippine law, evidence is relevant when it relates directly to a fact in issue as to induce
belief in its existence or non-existence. Applying the Daubert test to the case at bar, the DNA
evidence obtained through PCR testing and utilizing STR analysis, and which was appreciated
by the court a quo is relevant and reliable since it is reasonably based on scientifically valid
principles of human genetics and molecular biology.

Significantly, we upheld the constitutionality of compulsory DNA testing and the admissibility of
the results thereof as evidence. In that case, DNA samples from semen recovered from a rape
victims vagina were used to positively identify the accused Joel Kawit Yatar as the rapist.
Yatar claimed that the compulsory extraction of his blood sample for DNA testing, as well as the
testing itself, violated his right against self-incrimination, as embodied in both Sections 12 and
17 of Article III of the Constitution. We addressed this as follows:

The contention is untenable. The kernel of the right is not against all compulsion, but against
testimonial compulsion. The right against self-incrimination is simply against the legal process of
extracting from the lips of the accused an admission of guilt. It does not apply where the
evidence sought to be excluded is not an incrimination but as part of object evidence.

Over the years, we have expressly excluded several kinds of object evidence taken from the
person of the accused from the realm of self-incrimination. These include photographs,[28] hair,
[29] and other bodily substances.[30] We have also declared as constitutional several procedures
performed on the accused such as pregnancy tests for women accused of adultery,[31] expulsion
of morphine from ones mouth[32] and the tracing of ones foot to determine its identity with
bloody footprints.[33] In Jimenez v. Caizares,[34] we even authorized the examination of a
womans genitalia, in an action for annulment filed by her husband, to verify his claim that she
was impotent, her orifice being too small for his penis. Some of these procedures were, to be
sure, rather invasive and involuntary, but all of them were constitutionally sound. DNA testing
and its results, per our ruling in Yatar,[35] are now similarly acceptable.

Nor does petitioners invocation of his right to privacy persuade us. In Ople v. Torres,[36] where
we struck down the proposed national computerized identification system embodied in
Administrative Order No. 308, we said:

In no uncertain terms, we also underscore that the right to privacy does not bar all incursions
into individual privacy. The right is not intended to stifle scientific and technological
advancements that enhance public service and the common good... Intrusions into the right must
be accompanied by proper safeguards that enhance public service and the common good.

Historically, it has mostly been in the areas of legality of searches and seizures,[37] and the
infringement of privacy of communication[38] where the constitutional right to privacy has been
critically at issue. Petitioners case involves neither and, as already stated, his argument that his
right against self-incrimination is in jeopardy holds no water. His hollow invocation of his
constitutional rights elicits no sympathy here for the simple reason that they are not in any way
being violated. If, in a criminal case, an accused whose very life is at stake can be compelled to
submit to DNA testing, we see no reason why, in this civil case, petitioner herein who does not
face such dire consequences cannot be ordered to do the same.
DNA paternity testing first came to prominence in the United States, where it yielded its first
official results sometime in 1985. In the decade that followed, DNA rapidly found widespread
general acceptance.[39] Several cases decided by various State Supreme Courts reflect the total
assimilation of DNA testing into their rules of procedure and evidence.

The case of Wilson v. Lumb[40] shows that DNA testing is so commonly accepted that, in some
instances, ordering the procedure has become a ministerial act. The Supreme Court of St.
Lawrence County, New York allowed a party who had already acknowledged paternity to
subsequently challenge his prior acknowledgment. The Court pointed out that, under the law,
specifically Section 516 of the New York Family Court Act, the Family Court examiner had the
duty, upon receipt of the challenge, to order DNA tests:[41]

516-a. Acknowledgment of paternity. (a) An acknowledgment of paternity executed pursuant

to section one hundred eleven-k of the social services law or section four thousand one hundred
thirty-five-b of the public health law shall establish the paternity of and liability for the support
of a child pursuant to this act. Such acknowledgment must be reduced to writing and filed
pursuant to section four thousand one hundred thirty-five-b of the public health law with the
registrar of the district in which the birth occurred and in which the birth certificate has been
filed. No further judicial or administrative proceedings are required to ratify an unchallenged
acknowledgment of paternity.

(b) An acknowledgment of paternity executed pursuant to section one hundred eleven-k of the
social services law or section four thousand one hundred thirty-five-b of the public health law
may be rescinded by either signators filing of a petition with the court to vacate the
acknowledgment within the earlier of sixty days of the date of signing the acknowledgment or
the date of an administrative or a judicial proceeding (including a proceeding to establish a
support order) relating to the child in which either signator is a party. For purposes of this
section, the "date of an administrative or a judicial proceeding" shall be the date by which the
respondent is required to answer the petition. After the expiration of sixty days of the execution
of the acknowledgment, either signator may challenge the acknowledgment of paternity in court
only on the basis of fraud, duress, or material mistake of fact, with the burden of proof on the
party challenging the voluntary acknowledgment. Upon receiving a partys challenge to an
acknowledgment, the court shall order genetic marker tests or DNA tests for the
determination of the childs paternity and shall make a finding of paternity, if appropriate,
in accordance with this article. Neither signators legal obligations, including the obligation
for child support arising from the acknowledgment, may be suspended during the challenge to
the acknowledgment except for good cause as the court may find. If a party petitions to rescind
an acknowledgment and if the court determines that the alleged father is not the father of the
child, or if the court finds that an acknowledgment is invalid because it was executed on the basis
of fraud, duress, or material mistake of fact, the court shall vacate the acknowledgment of
paternity and shall immediately provide a copy of the order to the registrar of the district in
which the childs birth certificate is filed and also to the putative father registry operated by the
department of social services pursuant to section three hundred seventy-two-c of the social
services law. In addition, if the mother of the child who is the subject of the acknowledgment is
in receipt of child support services pursuant to title six-A of article three of the social services
law, the court shall immediately provide a copy of the order to the child support enforcement unit
of the social services district that provides the mother with such services.

(c) A determination of paternity made by any other state, whether established through the
parents acknowledgment of paternity or through an administrative or judicial process, must be
accorded full faith and credit, if and only if such acknowledgment meets the requirements set
forth in section 452(a)(7) of the social security act.
(emphasis supplied)

DNA testing also appears elsewhere in the New York Family Court Act:[42]

532. Genetic marker and DNA tests; admissibility of records or reports of test results; costs of
tests.

a) The court shall advise the parties of their right to one or more genetic marker tests or DNA
tests and, on the courts own motion or the motion of any party, shall order the mother, her child
and the alleged father to submit to one or more genetic marker or DNA tests of a type generally
acknowledged as reliable by an accreditation body designated by the secretary of the federal
department of health and human services and performed by a laboratory approved by such an
accreditation body and by the commissioner of health or by a duly qualified physician to aid in
the determination of whether the alleged father is or is not the father of the child. No such test
shall be ordered, however, upon a written finding by the court that it is not in the best
interests of the child on the basis of res judicata, equitable estoppel, or the presumption of
legitimacy of a child born to a married woman. The record or report of the results of any such
genetic marker or DNA test ordered pursuant to this section or pursuant to section one hundred
eleven-k of the social services law shall be received in evidence by the court pursuant to
subdivision (e) of rule forty-five hundred eighteen of the civil practice law and rules where no
timely objection in writing has been made thereto and that if such timely objections are not
made, they shall be deemed waived and shall not be heard by the court. If the record or report
of the results of any such genetic marker or DNA test or tests indicate at least a ninety-five
percent probability of paternity, the admission of such record or report shall create a
rebuttable presumption of paternity, and shall establish, if unrebutted, the paternity of and
liability for the support of a child pursuant to this article and article four of this act.

(b) Whenever the court directs a genetic marker or DNA test pursuant to this section, a report
made as provided in subdivision (a) of this section may be received in evidence pursuant to rule
forty-five hundred eighteen of the civil practice law and rules if offered by any party.

(c) The cost of any test ordered pursuant to subdivision (a) of this section shall be, in the first
instance, paid by the moving party. If the moving party is financially unable to pay such cost, the
court may direct any qualified public health officer to conduct such test, if practicable; otherwise,
the court may direct payment from the funds of the appropriate local social services district. In
its order of disposition, however, the court may direct that the cost of any such test be
apportioned between the parties according to their respective abilities to pay or be assessed
against the party who does not prevail on the issue of paternity, unless such party is financially
unable to pay. (emphasis supplied)
In R.E. v. C.E.W.,[43] a decision of the Mississippi Supreme Court, DNA tests were used to
prove that H.W., previously thought to be an offspring of the marriage between A.C.W. and
C.E.W., was actually the child of R.E. with whom C.E.W. had, at the time of conception,
maintained an adulterous relationship.

In Erie County Department of Social Services on behalf of Tiffany M.H. v. Greg G.,[44] the 4th
Department of the New York Supreme Courts Appellate Division allowed G.G., who had been
adjudicated as T.M.H.s father by default, to have the said judgment vacated, even after six years,
once he had shown through a genetic marker test that he was not the childs father. In this case,
G.G. only requested the tests after the Department of Social Services, six years after G.G. had
been adjudicated as T.M.H.s father, sought an increase in his support obligation to her.

In Greco v. Coleman,[45] the Michigan Supreme Court while ruling on the constitutionality of a
provision of law allowing non-modifiable support agreements pointed out that it was because of
the difficulty of determining paternity before the advent of DNA testing that such support
agreements were necessary:

As a result of DNA testing, the accuracy with which paternity can be proven has increased
significantly since the parties in this lawsuit entered into their support agreement(current
testing methods can determine the probability of paternity to 99.999999% accuracy). However,
at the time the parties before us entered into the disputed agreement, proving paternity was a
very significant obstacle to an illegitimate child's access to child support. The first reported
results of modern DNA paternity testing did not occur until 1985. ("In fact, since its first
reported results in 1985, DNA matching has progressed to 'general acceptance in less than a
decade'"). Of course, while prior blood-testing methods could exclude some males from being
the possible father of a child, those methods could not affirmatively pinpoint a particular male as
being the father. Thus, when the settlement agreement between the present parties was entered in
1980, establishing paternity was a far more difficult ordeal than at present. Contested paternity
actions at that time were often no more than credibility contests. Consequently, in every
contested paternity action, obtaining child support depended not merely on whether the putative
father was, in fact, the child's biological father, but rather on whether the mother could prove to a
court of law that she was only sexually involved with one man--the putative father. Allowing
parties the option of entering into private agreements in lieu of proving paternity eliminated the
risk that the mother would be unable meet her burden of proof.

It is worth noting that amendments to Michigans Paternity law have included the use of DNA
testing:[46]

722.716 Pretrial proceedings; blood or tissue typing determinations as to mother, child, and
alleged father; court order; refusal to submit to typing or identification profiling; qualifications of
person conducting typing or identification profiling; compensation of expert; result of typing or
identification profiling; filing summary report; objection; admissibility; presumption; burden of
proof; summary disposition.

Sec. 6.
(1) In a proceeding under this act before trial, the court, upon application made by or on
behalf of either party, or on its own motion, shall order that the mother, child, and alleged
father submit to blood or tissue typing determinations, which may include, but are not
limited to, determinations of red cell antigens, red cell isoenzymes, human leukocyte
antigens, serum proteins, or DNA identification profiling, to determine whether the alleged
father is likely to be, or is not, the father of the child. If the court orders a blood or tissue
typing or DNA identification profiling to be conducted and a party refuses to submit to the
typing or DNA identification profiling, in addition to any other remedies available, the
court may do either of the following:

(a) Enter a default judgment at the request of the appropriate party.

(b) If a trial is held, allow the disclosure of the fact of the refusal unless good cause is shown
for not disclosing the fact of refusal.

(2) A blood or tissue typing or DNA identification profiling shall be conducted by a person
accredited for paternity determinations by a nationally recognized scientific organization,
including, but not limited to, the American association of blood banks.

xxx xxx xxx

(5) If the probability of paternity determined by the qualified person described in

subsection (2) conducting the blood or tissue typing or DNA identification profiling is 99%
or higher, and the DNA identification profile and summary report are admissible as
provided in subsection (4), paternity is presumed. If the results of the analysis of genetic
testing material from 2 or more persons indicate a probability of paternity greater than
99%, the contracting laboratory shall conduct additional genetic paternity testing until all
but 1 of the putative fathers is eliminated, unless the dispute involves 2 or more putative
fathers who have identical DNA.

(6) Upon the establishment of the presumption of paternity as provided in subsection (5), either
party may move for summary disposition under the court rules. this section does not abrogate the
right of either party to child support from the date of birth of the child if applicable under section
7. (emphasis supplied)

In Rafferty v. Perkins,[47] the Supreme Court of Mississippi ruled that DNA test results showing
paternity were sufficient to overthrow the presumption of legitimacy of a child born during the
course of a marriage:

The presumption of legitimacy having been rebutted by the results of the blood test eliminating
Perkins as Justin's father, even considering the evidence in the light most favorable to Perkins,
we find that no reasonable jury could find that Easter is not Justin's father based upon the
99.94% probability of paternity concluded by the DNA testing.

In S.J.F. and J.C.F. v. R.C.W.,[48] the North Dakota Supreme Court upheld an order for genetic
testing given by the Court of Appeals, even after trial on the merits had concluded without such
order being given. Significantly, when J.C.F., the mother, first filed the case for paternity and
support with the District Court, neither party requested genetic testing. It was only upon appeal
from dismissal of the case that the appellate court remanded the case and ordered the testing,
which the North Dakota Supreme Court upheld.

The case of Kohl v. Amundson,[49] decided by the Supreme Court of South Dakota,
demonstrated that even default judgments of paternity could be vacated after the adjudicated
father had, through DNA testing, established non-paternity. In this case, Kohl, having excluded
himself as the father of Amundsons child through DNA testing, was able to have the default
judgment against him vacated. He then obtained a ruling ordering Amundson to reimburse him
for the amounts withheld from his wages for child support. The Court said (w)hile Amundson
may have a remedy against the father of the child, she submit(ted) no authority that require(d)
Kohl to support her child. Contrary to Amundson's position, the fact that a default judgment was
entered, but subsequently vacated, (did) not foreclose Kohl from obtaining a money judgment for
the amount withheld from his wages.

In M.A.S. v. Mississippi Dept. of Human Services,[50] another case decided by the Supreme
Court of Mississippi, it was held that even if paternity was established through an earlier agreed
order of filiation, child support and visitation orders could still be vacated once DNA testing
established someone other than the named individual to be the biological father. The Mississippi
High Court reiterated this doctrine in Williams v. Williams.[51]

The foregoing considered, we find no grave abuse of discretion on the part of the public
respondent for upholding the orders of the trial court which both denied the petitioners motion
to dismiss and ordered him to submit himself for DNA testing. Under Rule 65 of the 1997 Rules
of Civil Procedure, the remedy of certiorari is only available when any tribunal, board or officer
has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy and
adequate remedy in the ordinary course of law.[52] In Land Bank of the Philippines v. the Court
of Appeals[53] where we dismissed a special civil action for certiorari under Rule 65, we
discussed at length the nature of such a petition and just what was meant by grave abuse of
discretion:

Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction or, in other words, where the power is exercised in an
arbitrary manner by reason of passion, prejudice, or personal hostility, and it must be so
patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to
perform the duty enjoined or to act at all in contemplation of law.

The special civil action for certiorari is a remedy designed for the correction of errors of
jurisdiction and not errors of judgment. The raison detre for the rule is when a court exercises
its jurisdiction, an error committed while so engaged does not deprive it of the jurisdiction being
exercised when the error is committed. If it did, every error committed by a court would deprive
it of its jurisdiction and every erroneous judgment would be a void judgment. In such a scenario,
the administration of justice would not survive. Hence, where the issue or question involved
affects the wisdom or legal soundness of the decisionnot the jurisdiction of the court to render
said decisionthe same is beyond the province of a special civil action for certiorari.

The proper recourse of the aggrieved party from a decision of the CA is a petition for review on
certiorari under Rule 45 of the Revised Rules of Court. On the other hand, if the error subject of
the recourse is one of jurisdiction, or the act complained of was perpetrated by a quasi-judicial
officer or agency with grave abuse of discretion amounting to lack or excess of jurisdiction, the
proper remedy available to the aggrieved party is a petition for certiorari under Rule 65 of the
said Rules. (emphasis supplied)

In the instant case, the petitioner has in no way shown any arbitrariness, passion, prejudice or
personal hostility that would amount to grave abuse of discretion on the part of the Court of
Appeals. The respondent court acted entirely within its jurisdiction in promulgating its decision
and resolution, and any error made would have only been an error in judgment. As we have
discussed, however, the decision of the respondent court, being firmly anchored in law and
jurisprudence, was correct.

Epilogue

For too long, illegitimate children have been marginalized by fathers who choose to deny their
existence. The growing sophistication of DNA testing technology finally provides a much needed
equalizer for such ostracized and abandoned progeny. We have long believed in the merits of
DNA testing and have repeatedly expressed as much in the past. This case comes at a perfect
time when DNA testing has finally evolved into a dependable and authoritative form of evidence
gathering. We therefore take this opportunity to forcefully reiterate our stand that DNA testing is
a valid means of determining paternity.

WHEREFORE, in view of the foregoing, the petition is hereby DENIED. The Court of
Appeals decision dated January 28, 2004 in CA-G.R. SP No. 80961 is hereby AFFIRMED in
toto.

Costs against petitioner.

[G.R. No. 138961. March 7, 2002]

WILLIAM LIYAO, JR., represented by his mother Corazon Garcia, petitioner, vs. JUANITA
TANHOTI-LIYAO, PEARL MARGARET L. TAN, TITA ROSE L. TAN AND LINDA
CHRISTINA LIYAO, respondents.

DECISION

DE LEON, JR., J.:

Before us is a petition for review on certiorari assailing the decision dated June 4, 1999 of the
Court of Appeals in CA-G.R. C.V. No. 45394 which reversed the decision of the Regional Trial
Court (RTC) of Pasig, Metro Manila, Branch 167 in declaring William Liyao, Jr. as the
illegitimate (spurious) son of the deceased William Liyao and ordering Juanita Tanhoti-Liyao,
Pearl Margaret L. Tan, Tita Rose L. Tan and Linda Christina Liyao to recognize and
acknowledge William Liyao, Jr. as a compulsory heir of the deceased William Liyao and entitled
to all successional rights as such and to pay the costs of the suit.

On November 29,1976, William Liyao, Jr., represented by his mother Corazon G. Garcia, filed
Civil Case No. 24943 before the RTC of Pasig, Branch 167 which is an action for compulsory
recognition as the illegitimate (spurious) child of the late William Liyao against herein
respondents, Juanita Tanhoti-Liyao, Pearl Margaret L. Tan, Tita Rose L. Tan and Linda Christina
Liyao. The complaint was later amended to include the allegation that petitioner was in
continuous possession and enjoyment of the status of the child of said William Liyao, petitioner
having been recognized and acknowledged as such child by the decedent during his lifetime."

The facts as alleged by petitioner are as follows:

Corazon G. Garcia is legally married to but living separately from Ramon M. Yulo for more than
ten (10) years at the time of the institution of the said civil case. Corazon cohabited with the late
William Liyao from 1965 up to the time of Williams untimely demise on December 2, 1975.
They lived together in the company of Corazons two (2) children from her subsisting marriage,
namely:

Enrique and Bernadette, both surnamed Yulo, in a succession of rented houses in Quezon City
and Manila. This was with the knowledge of William Liyaos legitimate children, Tita Rose L.
Tan and Linda Christina Liyao-Ortiga, from his subsisting marriage with Juanita Tanhoti Liyao.
Tita Rose and Christina were both employed at the Far East Realty Investment, Inc. of which
Corazon and William were then vice president and president, respectively.

Sometime in 1974, Corazon bought a lot from Ortigas and Co. which required the signature of
her husband, Ramon Yulo, to show his consent to the aforesaid sale. She failed to secure his
signature and, had never been in touch with him despite the necessity to meet him. Upon the
advice of William Liyao, the sale of the parcel of land located at the Valle Verde Subdivision was
registered under the name of Far East Realty Investment, Inc.

On June 9, 1975, Corazon gave birth to William Liyao, Jr. at the Cardinal Santos Memorial
Hospital. During her three (3) day stay at the hospital, William Liyao visited and stayed with her
and the new born baby, William, Jr. (Billy). All the medical and hospital expenses, food and
clothing were paid under the account of William Liyao. William Liyao even asked his
confidential secretary, Mrs. Virginia Rodriguez, to secure a copy of Billys birth certificate. He
likewise instructed Corazon to open a bank account for Billy with the Consolidated Bank and
Trust Company and gave weekly amounts to be deposited therein. William Liyao would bring
Billy to the office, introduce him as his good looking son and had their pictures taken together.

During the lifetime of William Liyao, several pictures were taken showing, among others,
William Liyao and Corazon together with Billys godfather, Fr. Julian Ruiz, William Liyaos
legal staff and their wives while on vacation in Baguio. Corazon also presented pictures in court
to prove that that she usually accompanied William Liyao while attending various social
gatherings and other important meetings. During the occasion of William Liyaos last birthday on
November 22, 1975 held at the Republic Supermarket, William Liyao expressly acknowledged
Billy as his son in the presence of Fr. Ruiz, Maurita Pasion and other friends and said, Hey, look
I am still young, I can still make a good looking son." Since birth, Billy had been in continuous
possession and enjoyment of the status of a recognized and/or acknowledged child of William
Liyao by the latters direct and overt acts. William Liyao supported Billy and paid for his food,
clothing and other material needs. However, after William Liyaos death, it was Corazon who
provided sole support to Billy and took care of his tuition fees at La Salle, Greenhills. William
Liyao left his personal belongings, collections, clothing, old newspaper clippings and
laminations at the house in White Plains where he shared his last moments with Corazon.

Testifying for the petitioner, Maurita Pasion declared that she knew both Corazon G. Garcia and
William Liyao who were godparents to her children. She used to visit Corazon and William
Liyao from 1965-1975. The two children of Corazon from her marriage to Ramon Yulo, namely,
Bernadette and Enrique (Ike), together with some housemaids lived with Corazon and William
Liyao as one family. On some occasions like birthdays or some other celebrations, Maurita
would sleep in the couples residence and cook for the family. During these occasions, she would
usually see William Liyao in sleeping clothes. When Corazon, during the latter part of 1974, was
pregnant with her child Billy, Maurita often visited her three (3) to four (4) times a week in
Greenhills and later on in White Plains where she would often see William Liyao. Being a close
friend of Corazon, she was at the Cardinal Santos Memorial Hospital during the birth of Billy.
She continuously visited them at White Plains and knew that William Liyao, while living with
her friend Corazon, gave support by way of grocery supplies, money for household expenses and
matriculation fees for the two (2) older children, Bernadette and Enrique. During William
Liyaos birthday on November 22, 1975 held at the Republic Supermarket Office, he was
carrying Billy and told everybody present, including his two (2) daughters from his legal
marriage, Look, this is my son, very guapo and healthy. He then talked about his plan for the
baptism of Billy before Christmas. He intended to make it engrande and make the bells of
San Sebastian Church ring. Unfortunately, this did not happen since William Liyao passed
away on December 2, 1975. Maurita attended Mr. Liyaos funeral and helped Corazon pack his
clothes. She even recognized a short sleeved shirt of blue and gray which Mr. Liyao wore in a
photograph as well as another shirt of lime green as belonging to the deceased. A note was also
presented with the following inscriptions: To Cora, Love From William. Maurita remembered
having invited the couple during her mothers birthday where the couple had their pictures taken
while exhibiting affectionate poses with one another. Maurita knew that Corazon is still married
to Ramon Yulo since her marriage has not been annulled nor is Corazon legally separated from
her said husband. However, during the entire cohabitation of William Liyao with Corazon
Garcia, Maurita had not seen Ramon Yulo or any other man in the house when she usually
visited Corazon.

Gloria Panopio testified that she is the owner of a beauty parlor and that she knew that Billy is
the son of her neighbors, William Liyao and Corazon Garcia, the latter being one of her
customers. Gloria met Mr. Liyao at Corazons house in Scout Delgado, Quezon City in the
Christmas of 1965. Gloria had numerous occasions to see Mr. Liyao from 1966 to 1974 and even
more so when the couple transferred to White Plains, Quezon City from 1974-1975. At the time
Corazon was conceiving, Mr. Liyao was worried that Corazon might have another miscarriage so
he insisted that she just stay in the house, play mahjong and not be bored. Gloria taught Corazon
how to play mahjong and together with Atty. Brillantes wife and sister-in-law, had mahjong
sessions among themselves. Gloria knew that Mr. Liyao provided Corazon with a rented house,
paid the salary of the maids and food for Billy. He also gave Corazon financial support. Gloria
knew that Corazon is married but is separated from Ramon Yulo although Gloria never had any
occasion to see Mr. Yulo with Corazon in the house where Mr. Liyao and Corazon lived.

Enrique Garcia Yulo testified that he had not heard from his father, Ramon Yulo, from the time
that the latter abandoned and separated from his family. Enrique was about six (6) years old
when William Liyao started to live with them up to the time of the latters death on December 2,
1975. Mr. Liyao was very supportive and fond of Enriques half brother, Billy. He identified
several pictures showing Mr. Liyao carrying Billy at the house as well as in the office. Enriques
testimony was corroborated by his sister, Bernadette Yulo, who testified that the various pictures
showing Mr. Liyao carrying Billy could not have been superimposed and that the negatives were
in the possession of her mother, Corazon Garcia.

Respondents, on the other hand, painted a different picture of the story.

Linda Christina Liyao-Ortiga stated that her parents, William Liyao and Juanita Tanhoti-Liyao,
were legally married. Linda grew up and lived with her parents at San Lorenzo Village, Makati,
Metro Manila until she got married; that her parents were not separated legally or in fact and that
there was no reason why any of her parents would institute legal separation proceedings in court.
Her father lived at their house in San Lorenzo Village and came home regularly. Even during out
of town business trips or for conferences with the lawyers at the office, her father would change
his clothes at home because of his personal hygiene and habits. Her father reportedly had trouble
sleeping in other peoples homes. Linda described him as very conservative and a strict
disciplinarian. He believed that no amount of success would compensate for failure of a home.
As a businessman, he was very tough, strong, fought for what he believed in and did not give up
easily. He suffered two strokes before the fatal attack which led to his death on December 2,
1975. He suffered a stroke at the office sometime in April-May 1974 and was attended by Dr.
Santiago Co. He then stayed in the house for two (2) to three (3) months for his therapy and
acupuncture treatment. He could not talk, move, walk, write or sign his name. In the meantime,
Linda and her sister, Tita Rose Liyao-Tan, ran the office. She handled the collection of rents
while her sister referred legal matters to their lawyers. William Liyao was bedridden and had
personally changed. He was not active in business and had dietary restrictions. Mr. Liyao also
suffered a milder stroke during the latter part of September to October 1974. He stayed home for
two (2) to three (3) days and went back to work. He felt depressed, however, and was easily
bored. He did not put in long hours in the office unlike before and tried to spend more time with
his family.

Linda testified that she knew Corazon Garcia is still married to Ramon Yulo. Corazon was not
legally separated from her husband and the records from the Local Civil Registrar do not indicate
that the couple obtained any annulment of their marriage. Once in 1973, Linda chanced upon
Ramon Yulo picking up Corazon Garcia at the company garage. Immediately after the death of
Lindas father, Corazon went to Lindas office for the return of the formers alleged investments
with the Far East Realty Investment, Inc. including a parcel of land sold by Ortigas and
Company. Linda added that Corazon, while still a Vice-President of the company, was able to
take out documents, clothes and several laminated pictures of William Liyao from the office.
There was one instance when she was told by the guards, Mrs. Yulo is leaving and taking out
things again. Linda then instructed the guards to bring Mrs. Yulo to the office upstairs but her
sister, Tita Rose, decided to let Corazon Garcia go. Linda did not recognize any article of
clothing which belonged to her father after having been shown three (3) large suit cases full of
mens clothes, underwear, sweaters, shorts and pajamas.

Tita Rose Liyao-Tan testified that her parents were legally married and had never been separated.
They resided at No. 21 Hernandez Street, San Lorenzo Village, Makati up to the time of her
fathers death on December 2, 1975. Her father suffered two (2) minor cardio-vascular arrests
(CVA) prior to his death. During the first heart attack sometime between April and May 1974, his
speech and hands were affected and he had to stay home for two (2) to three (3) months under
strict medication, taking aldomet, serpadil and cifromet which were prescribed by Dr. Bonifacio
Yap, for high blood pressure and cholesterol level control. Tita Rose testified that after the death
of Mr. Liyao, Corazon Garcia was paid the amount of One Hundred Thousand Pesos
(P100,000.00) representing her investment in the Far East Realty Investment Inc. Tita Rose also
stated that her family never received any formal demand that they recognize a certain William
Liyao, Jr. as an illegitimate son of her father, William Liyao. After assuming the position of
President of the company, Tita Rose did not come across any check signed by her late father
representing payment to lessors as rentals for the house occupied by Corazon Garcia. Tita Rose
added that the laminated photographs presented by Corazon Garcia are the personal collection of
the deceased which were displayed at the latters office.

The last witness who testified for the respondents was Ramon Pineda, driver and bodyguard of
William Liyao from 1962 to 1974, who said that he usually reported for work at San Lorenzo
Village, Makati to pick up his boss at 8:00 oclock in the morning. At past 7:00 oclock in the
evening, either Carlos Palamigan or Serafin Villacillo took over as night shift driver. Sometime
between April and May 1974, Mr. Liyao got sick. It was only after a month that he was able to
report to the office. Thereafter, Mr. Liyao was not able to report to the office regularly. Sometime
in September 1974, Mr. Liyao suffered from another heart attack. Mr. Pineda added that as a
driver and bodyguard of Mr. Liyao, he ran errands for the latter among which was buying
medicine for him like capasid and aldomet. On December 2, 1975, Mr. Pineda was called inside
the office of Mr. Liyao. Mr. Pineda saw his employer leaning on the table. He tried to massage
Mr. Liyaos breast and decided later to carry and bring him to the hospital but Mr. Liyao died
upon arrival thereat. Mrs. Liyao and her daughter, Linda Liyao-Ortiga were the first to arrive at
the hospital.

Mr. Pineda also declared that he knew Corazon Garcia to be one of the employees of the
Republic Supermarket. People in the office knew that she was married. Her husband, Ramon
Yulo, would sometimes go to the office. One time, in 1974, Mr. Pineda saw Ramon Yulo at the
office garage as if to fetch Corazon Garcia. Mr. Yulo who was also asking about cars for sale,
represented himself as car dealer.

Witness Pineda declared that he did not know anything about the claim of Corazon. He freely
relayed the information that he saw Mr. Yulo in the garage of Republic Supermarket once in
1973 and then in 1974 to Atty. Quisumbing when he went to the latters law office. Being the
driver of Mr. Liyao for a number of years, Pineda said that he remembered having driven the
group of Mr. Liyao, Atty. Astraquillo, Atty. Brillantes, Atty. Magno and Atty. Laguio to Baguio
for a vacation together with the lawyers wives. During his employment, as driver of Mr. Liyao,
he does not remember driving for Corazon Garcia on a trip to Baguio or for activities like
shopping.

On August 31, 1993, the trial court rendered a decision, the dispositive portion of which reads as
follows:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants
as follows:

(a) Confirming the appointment of Corazon G. Garcia as the guardian ad litem of the
minor William Liyao, Jr.;

(b) Declaring the minor William Liyao, Jr. as the illegitimate (spurious) son of the
deceased William Liyao;

(c) Ordering the defendants Juanita Tanhoti Liyao, Pearl Margaret L. Tan, Tita Rose L.
Tan and Christian Liyao, to recognize, and acknowledge the minor William Liyao,
Jr. as a compulsory heir of the deceased William Liyao, entitled to all succesional
rights as such; and

(d) Costs of suit.

In ruling for herein petitioner, the trial court said it was convinced by preponderance of evidence
that the deceased William Liyao sired William Liyao, Jr. since the latter was conceived at the
time when Corazon Garcia cohabited with the deceased. The trial court observed that herein
petitioner had been in continuous possession and enjoyment of the status of a child of the
deceased by direct and overt acts of the latter such as securing the birth certificate of petitioner
through his confidential secretary, Mrs. Virginia Rodriguez; openly and publicly acknowledging
petitioner as his son; providing sustenance and even introducing herein petitioner to his
legitimate children.

The Court of Appeals, however, reversed the ruling of the trial court saying that the law favors
the legitimacy rather than the illegitimacy of the child and the presumption of legitimacy is
thwarted only on ethnic ground and by proof that marital intimacy between husband and wife
was physically impossible at the period cited in Article 257 in relation to Article 255 of the Civil
Code. The appellate court gave weight to the testimonies of some witnesses for the respondents
that Corazon Garcia and Ramon Yulo who were still legally married and have not secured legal
separation, were seen in each others company during the supposed time that Corazon cohabited
with the deceased William Liyao. The appellate court further noted that the birth certificate and
the baptismal certificate of William Liyao, Jr. which were presented by petitioner are not
sufficient to establish proof of paternity in the absence of any evidence that the deceased,
William Liyao, had a hand in the preparation of said certificates and considering that his
signature does not appear thereon. The Court of Appeals stated that neither do family pictures
constitute competent proof of filiation. With regard to the passbook which was presented as
evidence for petitioner, the appellate court observed that there was nothing in it to prove that the
same was opened by William Liyao for either petitioner or Corazon Garcia since William Liyaos
signature and name do not appear thereon.

His motion for reconsideration having been denied, petitioner filed the present petition.

It must be stated at the outset that both petitioner and respondents have raised a number of issues
which relate solely to the sufficiency of evidence presented by petitioner to establish his claim of
filiation with the late William Liyao. Unfortunately, both parties have consistently overlooked
the real crux of this litigation: May petitioner impugn his own legitimacy to be able to claim
from the estate of his supposed father, William Liyao?

We deny the present petition.

Under the New Civil Code, a child born and conceived during a valid marriage is presumed to be
legitimate. The presumption of legitimacy of children does not only flow out from a declaration
contained in the statute but is based on the broad principles of natural justice and the supposed
virtue of the mother. The presumption is grounded in a policy to protect innocent offspring from
the odium of illegitimacy.

The presumption of legitimacy of the child, however, is not conclusive and consequently, may be
overthrown by evidence to the contrary. Hence, Article 255 of the New Civil Code provides:

Article 255. Children born after one hundred and eighty days following the celebration of the
marriage, and before three hundred days following its dissolution or the separation of the
spouses shall be presumed to be legitimate.

Against this presumption no evidence shall be admitted other than that of the physical
impossibility of the husband having access to his wife within the first one hundred and twenty
days of the three hundred which preceded the birth of the child.

This physical impossibility may be caused:

1) By the impotence of the husband;

2) By the fact that husband and wife were living separately in such a way that access
was not possible;

3) By the serious illness of the husband.

Petitioner insists that his mother, Corazon Garcia, had been living separately for ten (10) years
from her husband, Ramon Yulo, at the time that she cohabited with the late William Liyao and it
was physically impossible for her to have sexual relations with Ramon Yulo when petitioner was
conceived and born. To bolster his claim, petitioner presented a document entitled, Contract of
Separation, executed and signed by Ramon Yulo indicating a waiver of rights to any and all
claims on any property that Corazon Garcia might acquire in the future.

The fact that Corazon Garcia had been living separately from her husband, Ramon Yulo, at the
time petitioner was conceived and born is of no moment. While physical impossibility for the
husband to have sexual intercourse with his wife is one of the grounds for impugning the
legitimacy of the child, it bears emphasis that the grounds for impugning the legitimacy of the
child mentioned in Article 255 of the Civil Code may only be invoked by the husband, or in
proper cases, his heirs under the conditions set forth under Article 262 of the Civil Code.
Impugning the legitimacy of the child is a strictly personal right of the husband, or in exceptional
cases, his heirs for the simple reason that he is the one directly confronted with the scandal and
ridicule which the infidelity of his wife produces and he should be the one to decide whether to
conceal that infidelity or expose it in view of the moral and economic interest involved. It is only
in exceptional cases that his heirs are allowed to contest such legitimacy. Outside of these cases,
none - even his heirs - can impugn legitimacy; that would amount o an insult to his memory.

It is therefor clear that the present petition initiated by Corazon G. Garcia as guardian ad litem of
the then minor, herein petitioner, to compel recognition by respondents of petitioner William
Liyao, Jr, as the illegitimate son of the late William Liyao cannot prosper. It is settled that a child
born within a valid marriage is presumed legitimate even though the mother may have declared
against its legitimacy or may have been sentenced as an adulteress. We cannot allow petitioner to
maintain his present petition and subvert the clear mandate of the law that only the husband, or in
exceptional circumstances, his heirs, could impugn the legitimacy of a child born in a valid and
subsisting marriage. The child himself cannot choose his own filiation. If the husband, presumed
to be the father does not impugn the legitimacy of the child, then the status of the child is fixed,
and the latter cannot choose to be the child of his mothers alleged paramour. On the other hand,
if the presumption of legitimacy is overthrown, the child cannot elect the paternity of the
husband who successfully defeated the presumption.

Do the acts of Enrique and Bernadette Yulo, the undisputed children of Corazon Garcia with
Ramon Yulo, in testifying for herein petitioner amount to impugnation of the legitimacy of the
latter?

We think not. As earlier stated, it is only in exceptional cases that the heirs of the husband are
allowed to contest the legitimacy of the child. There is nothing on the records to indicate that
Ramon Yulo has already passed away at the time of the birth of the petitioner nor at the time of
the initiation of this proceedings. Notably, the case at bar was initiated by petitioner himself
through his mother, Corazon Garcia, and not through Enrique and Bernadette Yulo. It is settled
that the legitimacy of the child can be impugned only in a direct action brought for that purpose,
by the proper parties and within the period limited by law.

Considering the foregoing, we find no reason to discuss the sufficiency of the evidence presented
by both parties on the petitioners claim of alleged filiation with the late William Liyao. In any
event, there is no clear, competent and positive evidence presented by the petitioner that his
alleged father had admitted or recognized his paternity.
WHEREFORE, the instant petition is DENIED. The assailed decision of the Court of Appeals
in CA-G.R. CV No. 45394 is hereby AFFIRMED. No costs.

SO ORDERED.

[G.R. No. 123450. August 31, 2005]

GERARDO B. CONCEPCION, petitioner, vs. COURT OF APPEALS and MA. THERESA

ALMONTE, respondents.

DECISION

CORONA, J.:

The child, by reason of his mental and physical immaturity, needs special safeguard and care,
including appropriate legal protection before as well as after birth.[1] In case of assault on his
rights by those who take advantage of his innocence and vulnerability, the law will rise in his
defense with the single-minded purpose of upholding only his best interests.

This is the story of petitioner Gerardo B. Concepcion and private respondent Ma. Theresa
Almonte, and a child named Jose Gerardo. Gerardo and Ma. Theresa were married on December
29, 1989.[2] After their marriage, they lived with Ma. Theresas parents in Fairview, Quezon
City.[3] Almost a year later, on December 8, 1990, Ma. Theresa gave birth to Jose Gerardo.[4]

Gerardo and Ma. Theresas relationship turned out to be short-lived, however. On December 19,
1991, Gerardo filed a petition to have his marriage to Ma. Theresa annulled on the ground of
bigamy.[5] He alleged that nine years before he married Ma. Theresa on December 10, 1980, she
had married one Mario Gopiao, which marriage was never annulled.[6] Gerardo also found out
that Mario was still alive and was residing in Loyola Heights, Quezon City.[7]

Ma. Theresa did not deny marrying Mario when she was twenty years old. She, however, averred
that the marriage was a sham and that she never lived with Mario at all.[8]

The trial court ruled that Ma. Theresas marriage to Mario was valid and subsisting when she
married Gerardo and annulled her marriage to the latter for being bigamous. It declared Jose
Gerardo to be an illegitimate child as a result. The custody of the child was awarded to Ma.
Theresa while Gerardo was granted visitation rights.[9]

Ma. Theresa felt betrayed and humiliated when Gerardo had their marriage annulled. She held
him responsible for the bastardization of Gerardo. She moved for the reconsideration of the
above decision INSOFAR ONLY as that portion of the decision which grant(ed) to the
petitioner so-called visitation rights between the hours of 8 in the morning to 12:00 p.m. of
any Sunday.[10] She argued that there was nothing in the law granting visitation rights in favor
of the putative father of an illegitimate child.[11] She further maintained that Jose Gerardos
surname should be changed from Concepcion to Almonte, her maiden name, following the rule
that an illegitimate child shall use the mothers surname.
Gerardo opposed the motion. He insisted on his visitation rights and the retention of
Concepcion as Jose Gerardos surname.

Applying the best interest of the child principle, the trial court denied Ma. Theresas motion
and made the following observations:

It is a pity that the parties herein seem to be using their son to get at or to hurt the other,
something they should never do if they want to assure the normal development and well-being of
the boy.

The Court allowed visitorial rights to the father knowing that the minor needs a father, especially
as he is a boy, who must have a father figure to recognize something that the mother alone
cannot give. Moreover, the Court believes that the emotional and psychological well-being of
the boy would be better served if he were allowed to maintain relationships with his father.

There being no law which compels the Court to act one way or the other on this matter, the Court
invokes the provision of Art. 8, PD 603 as amended, otherwise known as the Child and Youth
Welfare Code, to wit:

In all questions regarding the care, custody, education and property of the child, his welfare
shall be the paramount consideration.

WHEREFORE, the respondents Motion for Reconsideration has to be, as it is hereby DENIED.
[12]

Ma. Theresa elevated the case to the Court of Appeals, assigning as error the ruling of the trial
court granting visitation rights to Gerardo. She likewise opposed the continued use of Gerardos
surname (Concepcion) despite the fact that Jose Gerardo had already been declared illegitimate
and should therefore use her surname (Almonte). The appellate court denied the petition and
affirmed in toto the decision of the trial court.[13]

On the issue raised by Ma. Theresa that there was nothing in the law that granted a putative
father visitation rights over his illegitimate child, the appellate court affirmed the best interest of
the child policy invoked by the court a quo. It ruled that [a]t bottom, it (was) the childs
welfare and not the convenience of the parents which (was) the primary consideration in granting
visitation rights a few hours once a week.[14]

The appellate court likewise held that an illegitimate child cannot use the mothers surname
motu proprio. The child, represented by the mother, should file a separate proceeding for a
change of name under Rule 103 of the Rules of Court to effect the correction in the civil registry.
[15]

Undaunted, Ma. Theresa moved for the reconsideration of the adverse decision of the appellate
court. She also filed a motion to set the case for oral arguments so that she could better ventilate
the issues involved in the controversy.
After hearing the oral arguments of the respective counsels of the parties, the appellate court
resolved the motion for reconsideration. It reversed its earlier ruling and held that Jose Gerardo
was not the son of Ma. Theresa by Gerardo but by Mario during her first marriage:

It is, therefore, undeniable established by the evidence in this case that the appellant [Ma.
Theresa] was married to Mario Gopiao, and that she had never entered into a lawful marriage
with the appellee [Gerardo] since the so-called marriage with the latter was void ab initio. It
was [Gerardo] himself who had established these facts. In other words, [Ma. Theresa] was
legitimately married to Mario Gopiao when the child Jose Gerardo was born on December 8,
1990. Therefore, the child Jose Gerardo under the law is the legitimate child of the legal and
subsisting marriage between [Ma. Theresa] and Mario Gopiao; he cannot be deemed to be the
illegitimate child of the void and non-existent marriage between [Ma. Theresa] and [Gerardo],
but is said by the law to be the child of the legitimate and existing marriage between [Ma.
Theresa] and Mario Gopiao (Art. 164, Family Code). Consequently, [she] is right in firmly
saying that [Gerardo] can claim neither custody nor visitorial rights over the child Jose Gerardo.
Further, [Gerardo] cannot impose his name upon the child. Not only is it without legal basis
(even supposing the child to be his illegitimate child [Art. 146, The Family Code]); it would tend
to destroy the existing marriage between [Ma. Theresa] and Gopiao, would prevent any possible
rapproachment between the married couple, and would mean a judicial seal upon an illegitimate
relationship.[16]

The appellate court brushed aside the common admission of Gerardo and Ma. Theresa that Jose
Gerardo was their son. It gave little weight to Jose Gerardos birth certificate showing that he
was born a little less than a year after Gerardo and Ma. Theresa were married:

We are not unaware of the movants argument that various evidence exist that appellee and the
appellant have judicially admitted that the minor is their natural child. But, in the same vein, We
cannot overlook the fact that Article 167 of the Family Code mandates:

The child shall be considered legitimate although the mother may have declared against its
legitimacy or may have been sentenced as an adulteress. (underscoring ours)

Thus, implicit from the above provision is the fact that a minor cannot be deprived of his/her
legitimate status on the bare declaration of the mother and/or even much less, the supposed
father. In fine, the law and only the law determines who are the legitimate or illegitimate
children for ones legitimacy or illegitimacy cannot ever be compromised. Not even the birth
certificate of the minor can change his status for the information contained therein are merely
supplied by the mother and/or the supposed father. It should be what the law says and not
what a parent says it is.[17] (Emphasis supplied)

Shocked and stunned, Gerardo moved for a reconsideration of the above decision but the same
was denied.[18] Hence, this appeal.

The status and filiation of a child cannot be compromised.[19] Article 164 of the Family Code is
clear. A child who is conceived or born during the marriage of his parents is legitimate.[20]
As a guaranty in favor of the child[21] and to protect his status of legitimacy, Article 167 of the
Family Code provides:

Article 167. The child shall be considered legitimate although the mother may have declared
against its legitimacy or may have been sentenced as an adulteress.

The law requires that every reasonable presumption be made in favor of legitimacy.[22] We
explained the rationale of this rule in the recent case of Cabatania v. Court of Appeals[23]:

The presumption of legitimacy does not only flow out of a declaration in the statute but is based
on the broad principles of natural justice and the supposed virtue of the mother. It is grounded on
the policy to protect the innocent offspring from the odium of illegitimacy.

Gerardo invokes Article 166 (1)(b)[24] of the Family Code. He cannot. He has no standing in
law to dispute the status of Jose Gerardo. Only Ma. Theresas husband Mario or, in a proper
case,[25] his heirs, who can contest the legitimacy of the child Jose Gerardo born to his wife.[26]
Impugning the legitimacy of a child is a strictly personal right of the husband or, in exceptional
cases, his heirs.[27] Since the marriage of Gerardo and Ma. Theresa was void from the very
beginning, he never became her husband and thus never acquired any right to impugn the
legitimacy of her child.

The presumption of legitimacy proceeds from the sexual union in marriage, particularly during
the period of conception.[28] To overthrow this presumption on the basis of Article 166 (1)(b) of
the Family Code, it must be shown beyond reasonable doubt that there was no access that could
have enabled the husband to father the child.[29] Sexual intercourse is to be presumed where
personal access is not disproved, unless such presumption is rebutted by evidence to the contrary.
[30]

The presumption is quasi-conclusive and may be refuted only by the evidence of physical
impossibility of coitus between husband and wife within the first 120 days of the 300 days which
immediately preceded the birth of the child.[31]

To rebut the presumption, the separation between the spouses must be such as to make marital
intimacy impossible.[32] This may take place, for instance, when they reside in different
countries or provinces and they were never together during the period of conception.[33] Or, the
husband was in prison during the period of conception, unless it appears that sexual union took
place through the violation of prison regulations.[34]

Here, during the period that Gerardo and Ma. Theresa were living together in Fairview, Quezon
City, Mario was living in Loyola Heights which is also in Quezon City. Fairview and Loyola
Heights are only a scant four kilometers apart.

Not only did both Ma. Theresa and Mario reside in the same city but also that no evidence at all
was presented to disprove personal access between them. Considering these circumstances, the
separation between Ma. Theresa and her lawful husband, Mario, was certainly not such as to
make it physically impossible for them to engage in the marital act.
Sexual union between spouses is assumed. Evidence sufficient to defeat the assumption should
be presented by him who asserts the contrary. There is no such evidence here. Thus, the
presumption of legitimacy in favor of Jose Gerardo, as the issue of the marriage between Ma.
Theresa and Mario, stands.

Gerardo relies on Ma. Theresas statement in her answer[35] to the petition for annulment of
marriage[36] that she never lived with Mario. He claims this was an admission that there was
never any sexual relation between her and Mario, an admission that was binding on her.

Gerardos argument is without merit.

First, the import of Ma. Theresas statement is that Jose Gerardo is not her legitimate son with
Mario but her illegitimate son with Gerardo. This declaration an avowal by the mother that
her child is illegitimate is the very declaration that is proscribed by Article 167 of the Family
Code.

The language of the law is unmistakable. An assertion by the mother against the legitimacy of
her child cannot affect the legitimacy of a child born or conceived within a valid marriage.

Second, even assuming the truth of her statement, it does not mean that there was never an
instance where Ma. Theresa could have been together with Mario or that there occurred
absolutely no intercourse between them. All she said was that she never lived with Mario. She
never claimed that nothing ever happened between them.

Telling is the fact that both of them were living in Quezon City during the time material to Jose
Gerardos conception and birth. Far from foreclosing the possibility of marital intimacy, their
proximity to each other only serves to reinforce such possibility. Thus, the impossibility of
physical access was never established beyond reasonable doubt.

Third, to give credence to Ma. Theresas statement is to allow her to arrogate unto herself a right
exclusively lodged in the husband, or in a proper case, his heirs.[37] A mother has no right to
disavow a child because maternity is never uncertain.[38] Hence, Ma. Theresa is not permitted
by law to question Jose Gerardos legitimacy.

Finally, for reasons of public decency and morality, a married woman cannot say that she had no
intercourse with her husband and that her offspring is illegitimate.[39] The proscription is in
consonance with the presumption in favor of family solidarity. It also promotes the intention of
the law to lean toward the legitimacy of children.[40]

Gerardos insistence that the filiation of Jose Gerardo was never an issue both in the trial court
and in the appellate court does not hold water. The fact that both Ma. Theresa and Gerardo
admitted and agreed that Jose Gerardo was born to them was immaterial. That was, in effect, an
agreement that the child was illegitimate. If the Court were to validate that stipulation, then it
would be tantamount to allowing the mother to make a declaration against the legitimacy of her
child and consenting to the denial of filiation of the child by persons other than her husband.
These are the very acts from which the law seeks to shield the child.
Public policy demands that there be no compromise on the status and filiation of a child.[41]
Otherwise, the child will be at the mercy of those who may be so minded to exploit his
defenselessness.

The reliance of Gerardo on Jose Gerardos birth certificate is misplaced. It has no evidentiary
value in this case because it was not offered in evidence before the trial court. The rule is that
the court shall not consider any evidence which has not been formally offered.[42]

Moreover, the law itself establishes the status of a child from the moment of his birth.[43]
Although a record of birth or birth certificate may be used as primary evidence of the filiation of
a child,[44] as the status of a child is determined by the law itself, proof of filiation is necessary
only when the legitimacy of the child is being questioned, or when the status of a child born after
300 days following the termination of marriage is sought to be established.[45]

Here, the status of Jose Gerardo as a legitimate child was not under attack as it could not be
contested collaterally and, even then, only by the husband or, in extraordinary cases, his heirs.
Hence, the presentation of proof of legitimacy in this case was improper and uncalled for.

In addition, a record of birth is merely prima facie evidence of the facts contained therein.[46] As
prima facie evidence, the statements in the record of birth may be rebutted by more preponderant
evidence. It is not conclusive evidence with respect to the truthfulness of the statements made
therein by the interested parties.[47] Between the certificate of birth which is prima facie
evidence of Jose Gerardos illegitimacy and the quasi-conclusive presumption of law (rebuttable
only by proof beyond reasonable doubt) of his legitimacy, the latter shall prevail. Not only does
it bear more weight, it is also more conducive to the best interests of the child and in consonance
with the purpose of the law.

It perplexes us why both Gerardo and Ma. Theresa would doggedly press for Jose Gerardos
illegitimacy while claiming that they both had the childs interests at heart. The law, reason and
common sense dictate that a legitimate status is more favorable to the child. In the eyes of the
law, the legitimate child enjoys a preferred and superior status. He is entitled to bear the
surnames of both his father and mother, full support and full inheritance.[48] On the other hand,
an illegitimate child is bound to use the surname and be under the parental authority only of his
mother. He can claim support only from a more limited group and his legitime is only half of that
of his legitimate counterpart.[49] Moreover (without unwittingly exacerbating the discrimination
against him), in the eyes of society, a bastard is usually regarded as bearing a stigma or mark of
dishonor. Needless to state, the legitimacy presumptively vested by law upon Jose Gerardo
favors his interest.

It is unfortunate that Jose Gerardo was used as a pawn in the bitter squabble between the very
persons who were passionately declaring their concern for him. The paradox was that he was
made to suffer supposedly for his own sake. This madness should end.

This case has been pending for a very long time already. What is specially tragic is that an
innocent child is involved. Jose Gerardo was barely a year old when these proceedings began. He
is now almost fifteen and all this time he has been a victim of incessant bickering. The law now
comes to his aid to write finis to the controversy which has unfairly hounded him since his
infancy.

Having only his best interests in mind, we uphold the presumption of his legitimacy.

As a legitimate child, Jose Gerardo shall have the right to bear the surnames of his father Mario
and mother Ma. Theresa, in conformity with the provisions of the Civil Code on surnames.[50] A
persons surname or family name identifies the family to which he belongs and is passed on from
parent to child.[51] Hence, Gerardo cannot impose his surname on Jose Gerardo who is, in the
eyes of the law, not related to him in any way.

The matter of changing Jose Gerardos name and effecting the corrections of the entries in the
civil register regarding his paternity and filiation should be threshed out in a separate proceeding.

In case of annulment or declaration of absolute nullity of marriage, Article 49 of the Family

Code grants visitation rights to a parent who is deprived of custody of his children. Such
visitation rights flow from the natural right of both parent and child to each others company.
There being no such parent-child relationship between them, Gerardo has no legally demandable
right to visit Jose Gerardo.

Our laws seek to promote the welfare of the child. Article 8 of PD 603, otherwise known as the
Child and Youth Welfare Code, is clear and unequivocal:

Article 8. Childs Welfare Paramount. In all questions regarding the care, custody, education
and property of the child, his welfare shall be the paramount consideration.

Article 3 (1) of the United Nations Convention on the Rights of a Child of which the Philippines
is a signatory is similarly emphatic:

Article 3

1. In all actions concerning children, whether undertaken by public or private social

welfare institutions, courts of law, administrative authorities or legislative bodies,
the best interests of the child shall be a primary consideration.

The State as parens patriae affords special protection to children from abuse, exploitation and
other conditions prejudicial to their development. It is mandated to provide protection to those of
tender years.[52] Through its laws, the State safeguards them from every one, even their own
parents, to the end that their eventual development as responsible citizens and members of
society shall not be impeded, distracted or impaired by family acrimony. This is especially
significant where, as in this case, the issue concerns their filiation as it strikes at their very
identity and lineage.

WHEREFORE, the petition is hereby DENIED. The September 14, 1995 and January 10, 1996
resolutions of the Court of Appeals in CA-G.R. CV No. 40651 are hereby AFFIRMED.
Costs against petitioner.

THIRD DIVISION

G.R. No. 171713 December 17, 2007

ESTATE OF ROGELIO G. ONG, petitioner,

vs.
Minor JOANNE RODJIN DIAZ, Represented by Her Mother and Guardian, Jinky C.
Diaz, respondent.

DECISION

CHICO-NAZARIO, J.:

This is a petition for Review on Certiorari under Rule 45 of the Revised Rules of Civil
Procedure assailing (1) the Decision1 of the Court of Appeals dated 23 November 2005 and (2)
the Resolution2 of the same court dated 1 March 2006 denying petitioners Motion for
Reconsideration in CA-G.R. CV No. 70125.

A Complaint3 for compulsory recognition with prayer for support pending litigation was filed by
minor Joanne Rodjin Diaz (Joanne), represented by her mother and guardian, Jinky C. Diaz
(Jinky), against Rogelio G. Ong (Rogelio) before the Regional Trial Court (RTC) of Tarlac City.
In her Complaint, Jinky prayed that judgment be rendered:

(a) Ordering defendant to recognize plaintiff Joanne Rodjin Diaz as his daughter.

(b) Ordering defendant to give plaintiff monthly support of P20,000.00 pendente lite and
thereafter to fix monthly support.

(c) Ordering the defendant to pay plaintiff attorneys fees in the sum of P100,000.00.

(d) Granting plaintiff such other measure of relief as maybe just and equitable in the
premises.4

As alleged by Jinky in her Complaint in November 1993 in Tarlac City, she and Rogelio got
acquainted. This developed into friendship and later blossomed into love. At this time, Jinky was
already married to a Japanese national, Hasegawa Katsuo, in a civil wedding solemnized on 19
February 1993 by Municipal Trial Court Judge Panfilo V. Valdez.5

From January 1994 to September 1998, Jinky and Rogelio cohabited and lived together at
Fairlane Subdivision, and later at Capitol Garden, Tarlac City.

From this live-in relationship, minor Joanne Rodjin Diaz was conceived and on 25 February
1998 was born at the Central Luzon Doctors Hospital, Tarlac City.
Rogelio brought Jinky to the hospital and took minor Joanne and Jinky home after delivery.
Rogelio paid all the hospital bills and the baptismal expenses and provided for all of minor
Joannes needs recognizing the child as his.

In September 1998, Rogelio abandoned minor Joanne and Jinky, and stopped supporting minor
Joanne, falsely alleging that he is not the father of the child.

Rogelio, despite Jinkys remonstrance, failed and refused and continued failing and refusing to
give support for the child and to acknowledge her as his daughter, thus leading to the filing of the
heretofore adverted complaint.

After summons had been duly served upon Rogelio, the latter failed to file any responsive
pleading despite repeated motions for extension, prompting the trial court to declare him in
default in its Order dated 7 April 1999. Rogelios Answer with Counterclaim and Special and
Affirmative Defenses was received by the trial court only on 15 April 1999. Jinky was allowed to
present her evidence ex parte on the basis of which the trial court on 23 April 1999 rendered a
decision granting the reliefs prayed for in the complaint.

In its Decision6 dated 23 April 1999, the RTC held:

WHEREFORE, judgment is hereby rendered:

1. Ordering defendant to recognize plaintiff as his natural child;

2. Ordering defendant to provide plaintiff with a monthly support of P10,000.00 and

further

3. Ordering defendant to pay reasonable attorneys fees in the amount of P5,000.00 and
the cost of the suit.

On 28 April 1999, Rogelio filed a motion to lift the order of default and a motion for
reconsideration seeking the courts understanding, as he was then in a quandary on what to do to
find a solution to a very difficult problem of his life.7

On 29 April 1999, Rogelio filed a motion for new trial with prayer that the decision of the trial
court dated 23 April 1999 be vacated and the case be considered for trial de novo pursuant to the
provisions of Section 6, Rule 37 of the 1997 Rules of Civil Procedure.8

On 16 June 1999, the RTC issued an Order granting Rogelios Motion for New Trial:

WHEREFORE, finding defendants motion for new trial to be impressed with merit, the
same is hereby granted.

The Order of this court declaring defendant in default and the decision is this court dated
April 23, 1999 are hereby set aside but the evidence adduced shall remain in record,
subject to cross-examination by defendant at the appropriate stage of the proceedings.
 In the meantime defendants answer is hereby admitted, subject to the right of plaintiff to
file a reply and/or answer to defendants counterclaim within the period fixed by the
Rules of Court.

Acting on plaintiffs application for support pendente lite which this court finds to be
warranted, defendant is hereby ordered to pay to plaintiff immediately the sum of
P2,000.00 a month from January 15, 1999 to May 1999 as support pendente lite in arrears
and the amount of P4,000.00 every month thereafter as regular support pendente lite
during the pendency of this case.9

The RTC finally held:

The only issue to be resolved is whether or not the defendant is the father of the plaintiff
Joanne Rodjin Diaz.

Since it was duly established that plaintiffs mother Jinky Diaz was married at the time of
the birth of Joanne Rodjin Diaz, the law presumes that Joanne is a legitimate child of the
spouses Hasegawa Katsuo and Jinky Diaz (Article 164, Family Code). The child is still
presumed legitimate even if the mother may have declared against her legitimacy (Article
167, Ibid).

The legitimacy of a child may be impugned only on the following grounds provided for
in Article 166 of the same Code. Paragraph 1 of the said Article provides that there must
be physical impossibility for the husband to have sexual intercourse with the wife within
the first 120 days of the 300 days following the birth of the child because of

a) physical incapacity of the husband to have sexual intercourse with his wife;

b) husband and wife were living separately in such a way that sexual intercourse
was not possible;

c) serious illness of the husband which prevented sexual intercourse.

It was established by evidence that the husband is a Japanese national and that he was
living outside of the country (TSN, Aug. 27, 1999, page 5) and he comes home only once
a year. Both evidence of the parties proved that the husband was outside the country and
no evidence was shown that he ever arrived in the country in the year 1997 preceding the
birth of plaintiff Joanne Rodjin Diaz.

While it may also be argued that plaintiff Jinky had a relationship with another man
before she met the defendant, there is no evidence that she also had sexual relations with
other men on or about the conception of Joanne Rodjin. Joanne Rodjin was her second
child (see Exh. "A"), so her first child, a certain Nicole (according to defendant) must
have a different father or may be the son of Hasegawa K[u]tsuo.
 The defendant admitted having been the one who shouldered the hospital bills
representing the expenses in connection with the birth of plaintiff. It is an evidence of
admission that he is the real father of plaintiff. Defendant also admitted that even when
he stopped going out with Jinky, he and Jinky used to go to motels even after 1996.
Defendant also admitted that on some instances, he still used to see Jinky after the birth
of Joanne Rodjin. Defendant was even the one who fetched Jinky after she gave birth to
Joanne.

On the strength of this evidence, the Court finds that Joanne Rodjin is the child of Jinky
and defendant Rogelio Ong and it is but just that the latter should support plaintiff.10

On 15 December 2000, the RTC rendered a decision and disposed:

WHEREFORE, judgment is hereby rendered declaring Joanne Rodjin Diaz to be the

illegitimate child of defendant Rogelio Ong with plaintiff Jinky Diaz. The Order of this
Court awarding support pendente lite dated June 15, 1999, is hereby affirmed and that the
support should continue until Joanne Rodjin Diaz shall have reached majority age.11

Rogelio filed a Motion for Reconsideration, which was denied for lack of merit in an Order of
the trial court dated 19 January 2001.12 From the denial of his Motion for Reconsideration,
Rogelio appealed to the Court of Appeals. After all the responsive pleadings had been filed, the
case was submitted for decision and ordered re-raffled to another Justice for study and report as
early as 12 July 2002.13

During the pendency of the case with the Court of Appeals, Rogelios counsel filed a
manifestation informing the Court that Rogelio died on 21 February 2005; hence, a Notice of
Substitution was filed by said counsel praying that Rogelio be substituted in the case by the
Estate of Rogelio Ong,14 which motion was accordingly granted by the Court of Appeals.15

In a Decision dated 23 November 2005, the Court of Appeals held:

WHEREFORE, premises considered, the present appeal is hereby GRANTED. The

appealed Decision dated December 15, 2000 of the Regional Trial Court of Tarlac, Tarlac,
Branch 63 in Civil Case No. 8799 is hereby SET ASIDE. The case is hereby
REMANDED to the court a quo for the issuance of an order directing the parties to make
arrangements for DNA analysis for the purpose of determining the paternity of plaintiff
minor Joanne Rodjin Diaz, upon consultation and in coordination with laboratories and
experts on the field of DNA analysis.

No pronouncement as to costs.16

Petitioner filed a Motion for Reconsideration which was denied by the Court of Appeals in a
Resolution dated 1 March 2006.

In disposing as it did, the Court of Appeals justified its Decision as follows:

 In this case, records showed that the late defendant-appellant Rogelio G. Ong, in the early
stage of the proceedings volunteered and suggested that he and plaintiffs mother submit
themselves to a DNA or blood testing to settle the issue of paternity, as a sign of good
faith. However, the trial court did not consider resorting to this modern scientific
procedure notwithstanding the repeated denials of defendant that he is the biological
father of the plaintiff even as he admitted having actual sexual relations with plaintiffs
mother. We believe that DNA paternity testing, as current jurisprudence affirms, would be
the most reliable and effective method of settling the present paternity dispute.
Considering, however, the untimely demise of defendant-appellant during the pendency
of this appeal, the trial court, in consultation with out laboratories and experts on the field
of DNA analysis, can possibly avail of such procedure with whatever remaining DNA
samples from the deceased defendant alleged to be the putative father of plaintiff minor
whose illegitimate filiations is the subject of this action for support.17

Hence, this petition which raises the following issues for resolution:

WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT DID NOT

DISMISS RESPONDENTS COMPLAINT FOR COMPULSORY RECOGNITION
DESPITE ITS FINDING THAT THE EVIDENCE PRESENTED FAILED TO PROVE
THAT ROGELIO G. ONG WAS HER FATHER.

II

WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT DID NOT

DECLARE RESPONDENT AS THE LEGITIMATE CHILD OF JINKY C. DIAZ AND
HER JAPANESE HUSBAND, CONSIDERING THAT RESPONDENT FAILED TO
REBUT THE PRESUMPTION OF HER LEGITIMACY.

III

WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT REMANDED

THE CASE TO THE COURT A QUO FOR DNA ANALYSIS DESPITE THE FACT
THAT IT IS NO LONGER FEASIBLE DUE TO THE DEATH OF ROGELIO G. ONG. 18

Petitioner prays that the present petition be given due course and the Decision of the Court of
Appeals dated November 23, 2005 be modified, by setting aside the judgment remanding the
case to the trial court for DNA testing analysis, by dismissing the complaint of minor Joanne for
compulsory recognition, and by declaring the minor as the legitimate child of Jinky and
Hasegawa Katsuo.19

From among the issues presented for our disposition, this Court finds it prudent to concentrate its
attention on the third one, the propriety of the appellate courts decision remanding the case to
the trial court for the conduct of DNA testing. Considering that a definitive result of the DNA
testing will decisively lay to rest the issue of the filiation of minor Joanne, we see no reason to
resolve the first two issues raised by the petitioner as they will be rendered moot by the result of
the DNA testing.

As a whole, the present petition calls for the determination of filiation of minor Joanne for
purposes of support in favor of the said minor.

Filiation proceedings are usually filed not just to adjudicate paternity but also to secure a legal
right associated with paternity, such as citizenship, support (as in the present case), or
inheritance. The burden of proving paternity is on the person who alleges that the putative father
is the biological father of the child. There are four significant procedural aspects of a traditional
paternity action which parties have to face: a prima facie case, affirmative defenses, presumption
of legitimacy, and physical resemblance between the putative father and child.20

A child born to a husband and wife during a valid marriage is presumed legitimate.21 As a
guaranty in favor of the child and to protect his status of legitimacy, Article 167 of the Family
Code provides:

Article 167. The children shall be considered legitimate although the mother may have
declared against its legitimacy or may have been sentenced as an adulteress.

The law requires that every reasonable presumption be made in favor of legitimacy. We
explained the rationale of this rule in the recent case of Cabatania v. Court of Appeals22:

The presumption of legitimacy does not only flow out of a declaration in the statute but is
based on the broad principles of natural justice and the supposed virtue of the mother.
The presumption is grounded on the policy to protect the innocent offspring from the
odium of illegitimacy.

The presumption of legitimacy of the child, however, is not conclusive and consequently, may be
overthrown by evidence to the contrary. Hence, Article 255 of the New Civil Code23 provides:

Article 255. Children born after one hundred and eighty days following the celebration of
the marriage, and before three hundred days following its dissolution or the separation of
the spouses shall be presumed to be legitimate.

Against this presumption no evidence shall be admitted other than that of the physical
impossibility of the husbands having access to his wife within the first one hundred and
twenty days of the three hundred which preceded the birth of the child.

This physical impossibility may be caused:

1) By the impotence of the husband;

2) By the fact that husband and wife were living separately in such a way that access was
not possible;
 3) By the serious illness of the husband.24

The relevant provisions of the Family Code provide as follows:

ART. 172. The filiation of legitimate children is established by any of the following:

(1) The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private handwritten

instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child; or

(2) Any other means allowed by the Rules of Court and special laws.

ART. 175. Illegitimate children may establish their illegitimate filiation in the same way
and on the same evidence as legitimate children.

There had been divergent and incongruent statements and assertions bandied about by the parties
to the present petition. But with the advancement in the field of genetics, and the availability of
new technology, it can now be determined with reasonable certainty whether Rogelio is the
biological father of the minor, through DNA testing.

DNA is the fundamental building block of a persons entire genetic make-up. DNA is found in all
human cells and is the same in every cell of the same person. Genetic identity is unique. Hence, a
persons DNA profile can determine his identity.25

DNA analysis is a procedure in which DNA extracted from a biological sample obtained from an
individual is examined. The DNA is processed to generate a pattern, or a DNA profile, for the
individual from whom the sample is taken. This DNA profile is unique for each person, except
for identical twins.

Everyone is born with a distinct genetic blueprint called DNA (deoxyribonucleic acid). It
is exclusive to an individual (except in the rare occurrence of identical twins that share a
single, fertilized egg), and DNA is unchanging throughout life. Being a component of
every cell in the human body, the DNA of an individuals blood is the very DNA in his or
her skin cells, hair follicles, muscles, semen, samples from buccal swabs, saliva, or other
body parts.

The chemical structure of DNA has four bases. They are known as A (Adenine), G
(guanine), C (cystosine) and T (thymine). The order in which the four bases appear in an
individuals DNA determines his or her physical make up. And since DNA is a double
stranded molecule, it is composed of two specific paired bases, A-T or T-A and G-C or C-
G. These are called "genes."
 Every gene has a certain number of the above base pairs distributed in a particular
sequence. This gives a person his or her genetic code. Somewhere in the DNA
framework, nonetheless, are sections that differ. They are known as "polymorphic loci,"
which are the areas analyzed in DNA typing (profiling, tests, fingerprinting). In other
words, DNA typing simply means determining the "polymorphic loci."

How is DNA typing performed? From a DNA sample obtained or extracted, a molecular
biologist may proceed to analyze it in several ways. There are five (5) techniques to
conduct DNA typing. They are: the RFLP (restriction fragment length polymorphism);
"reverse dot blot" or HLA DQ a/Pm loci which was used in 287 cases that were admitted
as evidence by 37 courts in the U.S. as of November 1994; DNA process; VNTR
(variable number tandem repeats); and the most recent which is known as the PCR-
([polymerase] chain reaction) based STR (short tandem repeats) method which, as of
1996, was availed of by most forensic laboratories in the world. PCR is the process of
replicating or copying DNA in an evidence sample a million times through repeated
cycling of a reaction involving the so-called DNA polymerize enzyme. STR, on the other
hand, takes measurements in 13 separate places and can match two (2) samples with a
reported theoretical error rate of less than one (1) in a trillion.

Just like in fingerprint analysis, in DNA typing, "matches" are determined. To illustrate,
when DNA or fingerprint tests are done to identify a suspect in a criminal case, the
evidence collected from the crime scene is compared with the "known" print. If a
substantial amount of the identifying features are the same, the DNA or fingerprint is
deemed to be a match. But then, even if only one feature of the DNA or fingerprint is
different, it is deemed not to have come from the suspect.

As earlier stated, certain regions of human DNA show variations between people. In each
of these regions, a person possesses two genetic types called "allele," one inherited from
each parent. In [a] paternity test, the forensic scientist looks at a number of these variable
regions in an individual to produce a DNA profile. Comparing next the DNA profiles of
the mother and child, it is possible to determine which half of the childs DNA was
inherited from the mother. The other half must have been inherited from the biological
father. The alleged fathers profile is then examined to ascertain whether he has the DNA
types in his profile, which match the paternal types in the child. If the mans DNA types
do not match that of the child, the man is excluded as the father. If the DNA types match,
then he is not excluded as the father.26

In the newly promulgated rules on DNA evidence it is provided:

SEC. 3 Definition of Terms. For purposes of this Rule, the following terms shall be
defined as follows:

xxxx

(c) "DNA evidence" constitutes the totality of the DNA profiles, results and other genetic
information directly generated from DNA testing of biological samples;
 (d) "DNA profile" means genetic information derived from DNA testing of a biological
sample obtained from a person, which biological sample is clearly identifiable as
originating from that person;

(e) "DNA testing" means verified and credible scientific methods which include the
extraction of DNA from biological samples, the generation of DNA profiles and the
comparison of the information obtained from the DNA testing of biological samples for
the purpose of determining, with reasonable certainty, whether or not the DNA obtained
from two or more distinct biological samples originates from the same person (direct
identification) or if the biological samples originate from related persons (kinship
analysis); and

(f) "Probability of Parentage" means the numerical estimate for the likelihood of
parentage of a putative parent compared with the probability of a random match of two
unrelated individuals in a given population.

Amidst the protestation of petitioner against the DNA analysis, the resolution thereof may
provide the definitive key to the resolution of the issue of support for minor Joanne. Our
articulation in Agustin v. Court of Appeals27 is particularly relevant, thus:

Our faith in DNA testing, however, was not quite so steadfast in the previous decade. In
Pe Lim v. Court of Appeals (336 Phil. 741, 270 SCRA 1), promulgated in 1997, we
cautioned against the use of DNA because "DNA, being a relatively new science, (had)
not as yet been accorded official recognition by our courts. Paternity (would) still have to
be resolved by such conventional evidence as the relevant incriminating acts,verbal and
written, by the putative father."

In 2001, however, we opened the possibility of admitting DNA as evidence of parentage,

as enunciated in Tijing v. Court of Appeals [G.R. No. 125901, 8 March 2001, 354 SCRA
17]:

x x x Parentage will still be resolved using conventional methods unless we adopt

the modern and scientific ways available. Fortunately, we have now the facility
and expertise in using DNA test for identification and parentage testing. The
University of the Philippines Natural Science Research Institute (UP-NSRI) DNA
Analysis Laboratory has now the capability to conduct DNA typing using short
tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a
child/person has two (2) copies, one copy from the mother and the other from the
father. The DNA from the mother, the alleged father and child are analyzed to
establish parentage. Of course, being a novel scientific technique, the use of DNA
test as evidence is still open to challenge. Eventually, as the appropriate case
comes, courts should not hesitate to rule on the admissibility of DNA evidence.
For it was said, that courts should apply the results of science when competently
obtained in aid of situations presented, since to reject said results is to deny
progress.
 The first real breakthrough of DNA as admissible and authoritative evidence in Philippine
jurisprudence came in 2002 with out en banc decision in People v. Vallejo [G.R. No.
144656, 9 May 2002, 382 SCRA 192] where the rape and murder victims DNA samples
from the bloodstained clothes of the accused were admitted in evidence. We reasoned that
"the purpose of DNA testing (was) to ascertain whether an association exist(ed) between
the evidence sample and the reference sample. The samples collected (were) subjected to
various chemical processes to establish their profile.

A year later, in People v. Janson [G.R. No. 125938, 4 April 2003, 400 SCRA 584], we
acquitted the accused charged with rape for lack of evidence because "doubts persist(ed)
in our mind as to who (were) the real malefactors. Yes, a complex offense (had) been
perpetrated but who (were) the perpetrators? How we wish we had DNA or other
scientific evidence to still our doubts."

In 2004, in Tecson, et al. v. COMELEC [G.R. Nos. 161434, 161634 and 161824, 3 March
2004, 424 SCRA 277], where the Court en banc was faced with the issue of filiation of
then presidential candidate Fernando Poe, Jr., we stated:

In case proof of filiation or paternity would be unlikely to satisfactorily establish

or would be difficult to obtain, DNA testing, which examines genetic codes
obtained from body cells of the illegitimate child and any physical residue of the
long dead parent could be resorted to. A positive match would clear up filiation or
paternity. In Tijing v. Court of Appeals, this Court has acknowledged the strong
weight of DNA testing...

Moreover, in our en banc decision in People v. Yatar [G.R. No. 150224, 19 May
2004, 428 SCRA 504], we affirmed the conviction of the accused for rape with
homicide, the principal evidence for which included DNA test results. x x x.

Coming now to the issue of remand of the case to the trial court, petitioner questions the
appropriateness of the order by the Court of Appeals directing the remand of the case to the RTC
for DNA testing given that petitioner has already died. Petitioner argues that a remand of the case
to the RTC for DNA analysis is no longer feasible due to the death of Rogelio. To our mind, the
alleged impossibility of complying with the order of remand for purposes of DNA testing is more
ostensible than real. Petitioners argument is without basis especially as the New Rules on DNA
Evidence28 allows the conduct of DNA testing, either motu proprio or upon application of any
person who has a legal interest in the matter in litigation, thus:

SEC. 4. Application for DNA Testing Order. The appropriate court may, at any time,
either motu proprio or on application of any person who has a legal interest in the matter
in litigation, order a DNA testing. Such order shall issue after due hearing and notice to
the parties upon a showing of the following:

(a) A biological sample exists that is relevant to the case;

 (b) The biological sample: (i) was not previously subjected to the type of DNA testing
now requested; or (ii) was previously subjected to DNA testing, but the results may
require confirmation for good reasons;

(c) The DNA testing uses a scientifically valid technique;

(d) The DNA testing has the scientific potential to produce new information that is
relevant to the proper resolution of the case; and

(e) The existence of other factors, if any, which the court may consider as potentially
affecting the accuracy or integrity of the DNA testing.

From the foregoing, it can be said that the death of the petitioner does not ipso facto negate the
application of DNA testing for as long as there exist appropriate biological samples of his DNA.

As defined above, the term "biological sample" means any organic material originating from a
persons body, even if found in inanimate objects, that is susceptible to DNA testing. This
includes blood, saliva, and other body fluids, tissues, hairs and bones.29

Thus, even if Rogelio already died, any of the biological samples as enumerated above as may be
available, may be used for DNA testing. In this case, petitioner has not shown the impossibility
of obtaining an appropriate biological sample that can be utilized for the conduct of DNA testing.

And even the death of Rogelio cannot bar the conduct of DNA testing. In People v. Umanito,30
citing Tecson v. Commission on Elections,31 this Court held:

The 2004 case of Tecson v. Commission on Elections [G.R. No. 161434, 3 March 2004,
424 SCRA 277] likewise reiterated the acceptance of DNA testing in our jurisdiction in
this wise: "[i]n case proof of filiation or paternity would be unlikely to satisfactorily
establish or would be difficult to obtain, DNA testing, which examines genetic codes
obtained from body cells of the illegitimate child and any physical residue of the long
dead parent could be resorted to."

It is obvious to the Court that the determination of whether appellant is the father of
AAAs child, which may be accomplished through DNA testing, is material to the fair and
correct adjudication of the instant appeal. Under Section 4 of the Rules, the courts are
authorized, after due hearing and notice, motu proprio to order a DNA testing. However,
while this Court retains jurisdiction over the case at bar, capacitated as it is to receive and
act on the matter in controversy, the Supreme Court is not a trier of facts and does not, in
the course of daily routine, conduct hearings. Hence, it would be more appropriate that
the case be remanded to the RTC for reception of evidence in appropriate hearings, with
due notice to the parties. (Emphasis supplied.)

As we have declared in the said case of Agustin v. Court of Appeals32:

 x x x [F]or too long, illegitimate children have been marginalized by fathers who choose
to deny their existence. The growing sophistication of DNA testing technology finally
provides a much needed equalizer for such ostracized and abandoned progeny. We have
long believed in the merits of DNA testing and have repeatedly expressed as much in the
past. This case comes at a perfect time when DNA testing has finally evolved into a
dependable and authoritative form of evidence gathering. We therefore take this
opportunity to forcefully reiterate our stand that DNA testing is a valid means of
determining paternity.

WHEREFORE, the instant petition is DENIED for lack of merit. The Decision of the Court of
Appeals dated 23 November 2005 and its Resolution dated 1 March 2006 are AFFIRMED.
Costs against petitioner.

SO ORDERED.

SECOND DIVISION

G.R. No. 159785 April 27, 2007

TEOFISTO I. VERCELES, Petitioner,

vs.
MARIA CLARISSA POSADA, in her own behalf, and as mother of minor VERNA AIZA
POSADA, CONSTANTINO POSADA and FRANCISCA POSADA, Respondents.

DECISION

QUISUMBING, J.:

This petition for review seeks the reversal of the Decision1 dated May 30, 2003 and the
Resolution2 dated August 27, 2003 of the Court of Appeals in CA-G.R. CV No. 50557. The
appellate court had affirmed with modification the Judgment3 dated January 4, 1995 of the
Regional Trial Court (RTC) of Virac, Catanduanes, Branch 42, in Civil Case No. 1401. The RTC
held petitioner liable to pay monthly support to Verna Aiza Posada since her birth on September
23, 1987 as well as moral and exemplary damages, attorneys fees and costs of suit.

The facts in this case as found by the lower courts are as follows:

Respondent Maria Clarissa Posada (Clarissa), a young lass from the barrio of Pandan,
Catanduanes, sometime in 1986 met a close family friend, petitioner Teofisto I. Verceles, mayor
of Pandan. He then called on the Posadas and at the end of the visit, offered Clarissa a job.

Clarissa accepted petitioners offer and worked as a casual employee in the mayors office
starting on September 1, 1986. From November 10 to 15 in 1986, with companions Aster de
Quiros, Pat del Valle, Jaime and Jocelyn Vargas, she accompanied petitioner to Legaspi City to
attend a seminar on town planning. They stayed at the Mayon Hotel.
On November 11, 1986, at around 11:00 a.m., petitioner fetched Clarissa from "My Brothers
Place" where the seminar was being held. Clarissa avers that he told her that they would have
lunch at Mayon Hotel with their companions who had gone ahead. When they reached the place
her companions were nowhere. After petitioner ordered food, he started making amorous
advances on her. She panicked, ran and closeted herself inside a comfort room where she stayed
until someone knocked. She said she hurriedly exited and left the hotel. Afraid of the mayor, she
kept the incident to herself. She went on as casual employee. One of her tasks was following-up
barangay road and maintenance projects.

On December 22, 1986, on orders of petitioner, she went to Virac, Catanduanes, to follow up
funds for barangay projects. At around 11:00 a.m. the same day, she went to Catanduanes Hotel
on instructions of petitioner who asked to be briefed on the progress of her mission. They met at
the lobby and he led her upstairs because he said he wanted the briefing done at the restaurant at
the upper floor.

Instead, however, petitioner opened a hotel room door, led her in, and suddenly embraced her, as
he told her that he was unhappy with his wife and would "divorce" her anytime. He also claimed
he could appoint her as a municipal development coordinator. She succumbed to his advances.
But again she kept the incident to herself.

Sometime in January 1987, when she missed her menstruation, she said she wrote petitioner that
she feared she was pregnant. In another letter in February 1987, she told him she was pregnant.
In a handwritten letter dated February 4, 1987, he replied:

My darling Chris,

Should you become pregnant even unexpectedly, I should have no regret, because I love you and
you love me.

Let us rejoice a common responsibility you and I shall take care of it and let him/her see the
light of this beautiful world.

We know what to do to protect our honor and integrity.

Just relax and be happy, if true.

With all my love,

Ninoy

2/4/874

Clarissa explained petitioner used an alias "Ninoy" and addressed her as "Chris," probably
because of their twenty-five (25)-year age gap. In court, she identified petitioners penmanship
which she claims she was familiar with as an employee in his office.
Clarissa presented three other handwritten letters5 sent to her by petitioner, two of which were in
his letterhead as mayor of Pandan. She also presented the pictures6 petitioner gave her of his
youth and as a public servant, all bearing his handwritten notations at the back.

Clarissa avers that on March 3, 1987, petitioner, aware of her pregnancy, handed her a letter and
P2,000 pocket money to go to Manila and to tell her parents that she would enroll in a CPA
review course or look for a job. In June 1987, petitioner went to see her in Manila and gave her
another P2,000 for her delivery. When her parents learned of her pregnancy, sometime in July,
her father fetched her and brought her back to Pandan. On September 23, 1987,7 she gave birth to
a baby girl, Verna Aiza Posada.

Clarissas mother, Francisca, corroborated Clarissas story. She said they learned of their
daughters pregnancy through her husbands cousin. She added that she felt betrayed by
petitioner and shamed by her daughters pregnancy.

The Posadas filed a Complaint for Damages coupled with Support Pendente Lite before the RTC,
Virac, Catanduanes against petitioner on October 23, 1987.8

On January 4, 1995, the trial court issued a judgment in their favor, the dispositive portion of
which reads as follows:

WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of the

[respondents] and against the [petitioner] and ordering the latter:

1. to pay a monthly support of P2,000.00 to Verna Aiza Posada since her birth on
September 23, 1987 as he was proved to be the natural father of the above-named minor
as shown by the exhibits and testimonies of the [respondents];

2. to pay the amount of P30,000.00 as moral damages;

3. to pay the amount of P30,000.00 as exemplary damages;

4. to pay the sum of P10,000.00 as attorneys fees; and

5. to pay the costs of the suit.

SO ORDERED.9

Verceles appealed to the Court of Appeals which affirmed the judgment with modification,
specifying the party to whom the damages was awarded. The dispositive portion of the Court of
Appeals decision reads:

WHEREFORE, the appealed judgment is AFFIRMED with modification by ordering

[petitioner] Teofisto I. Verceles:
 1. To pay a monthly support of P2,000.00 to Verna Aiza Posada from her birth on
September 23, 1987.

2. To pay [respondent] Maria Clarissa Posada the sum of P15,000.00 as moral damages
and [P]15,000.00 as exemplary damages.

3. To pay [respondents] spouses Constantino and Francisca Posada the sum of

P15,000.00 as moral damages and P15,000.00 as exemplary damages.

4. To pay each of the said three [respondents] P10,000.00 as attorneys fees; and

5. To pay the costs of suit.

SO ORDERED.10

Hence, this petition.

Petitioner now presents the following issues for resolution:

I.

WAS THERE ANY EVIDENCE ON RECORD TO PROVE THAT APPELLANT VERCELES

WAS THE FATHER OF THE CHILD?

II.

WOULD THIS ACTION FOR DAMAGES PROSPER?

III.

WOULD THE RTC COURT HAVE ACQUIRED JURISDICTION OVER THIS ISSUE OF
APPELLANTS PATERNITY OF THE CHILD, WHICH IS MADE COLLATERAL TO THIS
ACTION FOR DAMAGES?11

In sum, the pertinent issues in this case are: (1) whether or not paternity and filiation can be
resolved in an action for damages with support pendente lite; (2) whether or not the filiation of
Verna Aiza Posada as the illegitimate child of petitioner was proven; and (3) whether or not
respondents are entitled to damages.

In his Memorandum, petitioner asserts that the fact of paternity and filiation of Verna Aiza
Posada has not been duly established or proved in the proceedings; that the award for damages
and attorneys fees has no basis; and that the issue of filiation should be resolved in a direct and
not a collateral action.

Petitioner argues he never signed the birth certificate of Verna Aiza Posada as father and that it
was respondent Clarissa who placed his name on the birth certificate as father without his
consent. He further contends the alleged love letters he sent to Clarissa are not admissions of
paternity but mere expressions of concern and advice.12 As to the award for damages, petitioner
argues Clarissa could not have suffered moral damages because she was in pari delicto, being a
willing participant in the "consensual carnal act" between them.13 In support of his argument that
the issue on filiation should have been resolved in a separate action, petitioner cited the case of
Rosales v. Castillo Rosales14 where we held that the legitimacy of a child which is controversial
can only be resolved in a direct action.15

On the other hand, respondents in their Memorandum maintain that the Court of Appeals
committed no error in its decision. They reiterate that Clarissas clear narration of the
circumstances on "how she was deflowered" by petitioner, the love letters and pictures given by
petitioner to Clarissa, the corroborating testimony of Clarissas mother, the fact that petitioner
proffered no countervailing evidence, are preponderant evidence of paternity. They cited the case
of De Jesus v. Syquia16 where we held that a conceived child can be acknowledged because this
is an act favorable to the child.17 They also argue that damages should be awarded because
petitioner inveigled Clarissa to succumb to his sexual advances.18

Could paternity and filiation be resolved in an action for damages? On this score, we find
petitioners stance unmeritorious. The caption is not determinative of the nature of a pleading. In
a string of cases we made the following rulings. It is not the caption but the facts alleged which
give meaning to a pleading. Courts are called upon to pierce the form and go into the substance
thereof.19 In determining the nature of an action, it is not the caption, but the averments in the
petition and the character of the relief sought, that are controlling.20

A perusal of the Complaint before the RTC shows that although its caption states "Damages
coupled with Support Pendente Lite," Clarissas averments therein, her meeting with petitioner,
his offer of a job, his amorous advances, her seduction, their trysts, her pregnancy, birth of her
child, his letters, her demand for support for her child, all clearly establish a case for recognition
of paternity. We have held that the due recognition of an illegitimate child in a record of birth, a
will, a statement before a court of record, or in any authentic writing is, in itself, a consummated
act of acknowledgement of the child, and no further court action is required. In fact, any
authentic writing is treated not just a ground for compulsory recognition; it is in itself a voluntary
recognition that does not require a separate action for judicial approval.21

The letters of petitioner marked as Exhibits "A" to "D" are declarations that lead nowhere but to
the conclusion that he sired Verna Aiza. Although petitioner used an alias in these letters, the
similarity of the penmanship in these letters vis the annotation at the back of petitioners fading
photograph as a youth is unmistakable. Even an inexperienced eye will come to the conclusion
that they were all written by one and the same person, petitioner, as found by the courts a quo.

We also note that in his Memorandum, petitioner admitted his affair with Clarissa, the exchange
of love letters between them, and his giving her money during her pregnancy. 22

Articles 172 and 175 of the Family Code are the rules for establishing filiation. They are as
follows:
Art. 172. The filiation of legitimate children is established by any of the following:

(1) The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private handwritten

instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child; or

(2) Any other means allowed by the Rules of Court and special laws.

Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on
the same evidence as legitimate children.

The action must be brought within the same period specified in Article 173, except when the
action is based on the second paragraph of Article 172, in which case the action may be brought
during the lifetime of the alleged parent.

The letters, one of which is quoted above, are private handwritten instruments of petitioner
which establish Verna Aizas filiation under Article 172 (2) of the Family Code. In addition, the
array of evidence presented by respondents, the dates, letters, pictures and testimonies, to us, are
convincing, and irrefutable evidence that Verna Aiza is, indeed, petitioners illegitimate child.

Petitioner not only failed to rebut the evidence presented, he himself presented no evidence of his
own. His bare denials are telling. Well-settled is the rule that denials, if unsubstantiated by clear
and convincing evidence, are negative and self-serving which merit no weight in law and cannot
be given greater evidentiary value over the testimony of credible witnesses who testify on
affirmative matters.23

We, however, cannot rule that respondents are entitled to damages. Article 221924of the Civil
Code which states moral damages may be recovered in cases of seduction is inapplicable in this
case because Clarissa was already an adult at the time she had an affair with petitioner.

Neither can her parents be entitled to damages. Besides, there is nothing in law or jurisprudence
that entitles the parents of a consenting adult who begets a love child to damages. Respondents
Constantino and Francisca Posada have not cited any law or jurisprudence to justify awarding
damages to them.

We, however, affirm the grant of attorneys fees in consonance with Article 2208 (2)25 and (11)26
of the New Civil Code.

WHEREFORE, the assailed Decision dated May 30, 2003 and the Resolution dated August 27,
2003 of the Court of Appeals in CA-G.R. CV No. 50557 are AFFIRMED, with the
MODIFICATION that the award of moral damages and exemplary damages be DELETED.
SO ORDERED.

SECOND DIVISION

JENIE SAN JUAN DELA CRUZ G.R. No. 177728

and minor CHRISTIAN DELA
CRUZ AQUINO, represented
by JENIE SAN JUAN DELA
CRUZ, Present:

Petitioners,
QUISUMBING, J., Chairperson,
CARPIO MORALES,

CHICO-NAZARIO,

versus LEONARDO-DE CASTRO, and

PERALTA,* JJ.

RONALD PAUL S. GRACIA, in

his capacity as City Civil Registrar
of Antipolo City,

Respondent.

Promulgated:

July 31, 2009

x------------------------------------------------x
DECISION

CARPIO MORALES, J.:

For several months in 2005, then 21-year old petitioner Jenie San Juan Dela Cruz (Jenie)
and then 19-year old Christian Dominique Sto. Tomas Aquino (Dominique) lived together as
husband and wife without the benefit of marriage. They resided in the house of Dominiques
parents Domingo B. Aquino and Raquel Sto. Tomas Aquino at Pulang-lupa, Dulumbayan,
Teresa, Rizal.

On September 4, 2005, Dominique died. After almost two months, or on November 2,

2005, Jenie, who continued to live with Dominiques parents, gave birth to her herein co-
petitioner minor child Christian Dela Cruz Aquino at the Antipolo Doctors Hospital, Antipolo
City.

Jenie applied for registration of the childs birth, using Dominiques surname Aquino,
with the Office of the City Civil Registrar, Antipolo City, in support of which she submitted the
childs Certificate of Live Birth, Affidavit to Use the Surname of the Father (AUSF) which she
had executed and signed, and Affidavit of Acknowledgment executed by Dominiques father
Domingo Butch Aquino. Both affidavits attested, inter alia, that during the lifetime of
Dominique, he had continuously acknowledged his yet unborn child, and that his paternity had
never been questioned. Jenie attached to the AUSF a document entitled AUTOBIOGRAPHY
which Dominique, during his lifetime, wrote in his own handwriting, the pertinent portions of
which read:

AQUINO, CHRISTIAN DOMINIQUE S.T.

AUTOBIOGRAPHY

IM CHRISTIAN DOMINIQUE STO. TOMAS AQUINO, 19 YEARS OF

AGE TURNING 20 THIS COMING OCTOBER 31, 2005. I RESIDE AT
PULANG-LUPA STREET BRGY. DULUMBAYAN, TERESA, RIZAL. I AM
THE YOUNGEST IN OUR FAMILY. I HAVE ONE BROTHER NAMED
JOSEPH BUTCH STO. TOMAS AQUINO. MY FATHERS NAME IS
DOMINGO BUTCH AQUINO AND MY MOTHERS NAME IS RAQUEL
STO. TOMAS AQUINO. x x x.

xxxx

AS OF NOW I HAVE MY WIFE NAMED JENIE DELA CRUZ. WE

MET EACH OTHER IN OUR HOMETOWN, TEREZA RIZAL. AT FIRST WE
BECAME GOOD FRIENDS, THEN WE FELL IN LOVE WITH EACH
OTHER, THEN WE BECAME GOOD COUPLES. AND AS OF NOW SHE IS
PREGNANT AND FOR THAT WE LIVE TOGETHER IN OUR HOUSE NOW.
THATS ALL. (Emphasis and underscoring supplied)

By letter dated November 11, 2005, the City Civil Registrar of Antipolo City, Ronald
Paul S. Gracia (respondent), denied Jenies application for registration of the childs name in this
wise:

7. Rule 7 of Administrative Order No. 1, Series of 2004 (Implementing Rules

and Regulations of Republic Act No. 9255 [An Act Allowing Illegitimate
Children to Use the Surname of their Father, Amending for the Purpose,
Article 176 of Executive Order No. 209, otherwise Known as the Family
Code of the Philippines]) provides that:

Rule 7. Requirements for the Child to Use the Surname of the Father

7.1 For Births Not Yet Registered

 7.1.1 The illegitimate child shall use the surname of the father if a
public document is executed by the father, either at the back of
the Certificate of Live Birth or in a separate document.

7.1.2 If admission of paternity is made through a private handwritten

instrument, the child shall use the surname of the father,
provided the registration is supported by the following
documents:

a. AUSF
b. Consent of the child, if 18 years old and over at the time of
the filing of the document.
c. Any two of the following documents showing clearly the
paternity between the father and the child:

1. Employment records
2. SSS/GSIS records
3. Insurance
4. Certification of membership in any organization
5. Statement of Assets and Liability

6. Income Tax Return (ITR)

In summary, the child cannot use the surname of his father because he was born
out of wedlock and the father unfortunately died prior to his birth and has no more
capacity to acknowledge his paternity to the child (either through the back of
Municipal Form No. 102 Affidavit of Acknowledgment/Admission of Paternity
or the Authority to Use the Surname of the Father). (Underscoring supplied)

Jenie and the child promptly filed a complaint for injunction/registration of name against
respondent before the Regional Trial Court of Antipolo City, docketed as SCA Case No. 06-539,
which was raffled to Branch 73 thereof. The complaint alleged that, inter alia, the denial of
registration of the childs name is a violation of his right to use the surname of his deceased
father under Article 176 of the Family Code, as amended by Republic Act (R.A.) No. 9255,
which provides:
 Article 176. Illegitimate children shall use the surname and shall be under
the parental authority of their mother, and shall be entitled to support in
conformity with this Code. However, illegitimate children may use the surname of
their father if their filiation has been expressly recognized by the father through
the record of birth appearing in the civil register, or when an admission in a
public document or private handwritten instrument is made by the father.
Provided, the father has the right to institute an action before the regular courts to
prove non-filiation during his lifetime. The legitime of each illegitimate child
shall consist of one-half of the legitime of a legitimate child. (Emphasis and
underscoring supplied)

They maintained that the Autobiography executed by Dominique constitutes an admission of

paternity in a private handwritten instrument within the contemplation of the above-quoted
provision of law.

For failure to file a responsive pleading or answer despite service of summons,

respondent was declared in default.

Jenie thereupon presented evidence ex-parte. She testified on the circumstances of her
common-law relationship with Dominique and affirmed her declarations in her AUSF that during
his lifetime, he had acknowledged his yet unborn child. She offered Dominiques handwritten
Autobiography (Exhibit A) as her documentary evidence-in-chief. Dominiques lone brother,
Joseph Butch S.T. Aquino, also testified, corroborating Jenies declarations.

By Decision of April 25, 2007, the trial court dismissed the complaint for lack of cause
of action as the Autobiography was unsigned, citing paragraph 2.2, Rule 2 (Definition of Terms)
of Administrative Order (A.O.) No. 1, Series of 2004 (the Rules and Regulations Governing
the Implementation of R.A. 9255) which defines private handwritten document through
which a father may acknowledge an illegitimate child as follows:
 2.2 Private handwritten instrument an instrument executed in the
handwriting of the father and duly signed by him where he expressly recognizes
paternity to the child. (Underscoring supplied)

The trial court held that even if Dominique was the author of the handwritten Autobiography, the
same does not contain any express recognition of paternity.

Hence, this direct resort to the Court via Petition for Review on Certiorari raising this
purely legal issue of:

WHETHER OR NOT THE UNSIGNED HANDWRITTEN STATEMENT

OF THE DECEASED FATHER OF MINOR CHRISTIAN DELA CRUZ CAN
BE CONSIDERED AS A RECOGNITION OF PATERNITY IN A PRIVATE
HANDWRITTEN INSTRUMENT WITHIN THE CONTEMPLATION OF
ARTICLE 176 OF THE FAMILY CODE, AS AMENDED BY R.A. 9255,
WHICH ENTITLES THE SAID MINOR TO USE HIS FATHERS SURNAME.
(Underscoring supplied)

Petitioners contend that Article 176 of the Family Code, as amended, does not expressly
require that the private handwritten instrument containing the putative fathers admission of
paternity must be signed by him. They add that the deceaseds handwritten Autobiography,
though unsigned by him, is sufficient, for the requirement in the above-quoted paragraph 2.2 of
the Administrative Order that the admission/recognition must be duly signed by the father is
void as it unduly expanded the earlier-quoted provision of Article 176 of the Family Code.
 Petitioners further contend that the trial court erred in not finding that Dominiques
handwritten Autobiography contains a clear and unmistakable recognition of the childs
paternity.

In its Comment, the Office of the Solicitor General (OSG) submits that respondents
position, as affirmed by the trial court, is in consonance with the law and thus prays for the
dismissal of the petition. It further submits that Dominiques Autobiography merely
acknowledged Jenies pregnancy but not [his] paternity of the child she was carrying in her
womb.

Article 176 of the Family Code, as amended by R.A. 9255, permits an illegitimate child
to use the surname of his/her father if the latter had expressly recognized him/her as his offspring
through the record of birth appearing in the civil register, or through an admission made in a
public or private handwritten instrument. The recognition made in any of these documents is, in
itself, a consummated act of acknowledgment of the childs paternity; hence, no separate action
for judicial approval is necessary.

Article 176 of the Family Code, as amended, does not, indeed, explicitly state that the
private handwritten instrument acknowledging the childs paternity must be signed by the
putative father. This provision must, however, be read in conjunction with related provisions of
the Family Code which require that recognition by the father must bear his signature, thus:

Art. 175. Illegitimate children may establish their illegitimate filiation in

the same way and on the same evidence as legitimate children.

xxxx

Art. 172. The filiation of legitimate children is established by any of the

following:
 (1) The record of birth appearing in the civil register or a final
judgment; or

(2) An admission of legitimate filiation in a public document or a

private handwritten instrument and signed by the parent concerned.

x x x x (Emphasis and underscoring supplied)

That a father who acknowledges paternity of a child through a written instrument must
affix his signature thereon is clearly implied in Article 176 of the Family Code. Paragraph 2.2,
Rule 2 of A.O. No. 1, Series of 2004, merely articulated such requirement; it did not unduly
expand the import of Article 176 as claimed by petitioners.

In the present case, however, special circumstances exist to hold that Dominiques
Autobiography, though unsigned by him, substantially satisfies the requirement of the law.

First, Dominique died about two months prior to the childs birth. Second, the relevant
matters in the Autobiography, unquestionably handwritten by Dominique, correspond to the facts
culled from the testimonial evidence Jenie proffered. Third, Jenies testimony is corroborated by
the Affidavit of Acknowledgment of Dominiques father Domingo Aquino and testimony of his
brother Joseph Butch Aquino whose hereditary rights could be affected by the registration of the
questioned recognition of the child. These circumstances indicating Dominiques paternity of the
child give life to his statements in his Autobiography that JENIE DELA CRUZ is MY WIFE
as WE FELL IN LOVE WITH EACH OTHER and NOW SHE IS PREGNANT AND FOR
THAT WE LIVE TOGETHER.
 In Herrera v. Alba, the Court summarized the laws, rules, and jurisprudence on
establishing filiation, discoursing in relevant part:

Laws, Rules, and Jurisprudence

Establishing Filiation

The relevant provisions of the Family Code provide as follows:

ART. 175. Illegitimate children may establish their illegitimate

filiation in the same way and on the same evidence as legitimate children.

xxxx

ART. 172. The filiation of legitimate children is established by any of

the following:

(1) The record of birth appearing in the civil register or a final

judgment; or

(2) An admission of legitimate filiation in a public document or a

private handwritten instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be

proved by:

(1) The open and continuous possession of the status of a legitimate

child; or

(2) Any other means allowed by the Rules of Court and special laws.

The Rules on Evidence include provisions on pedigree. The relevant sections

of Rule 130 provide:

SEC. 39. Act or declaration about pedigree. The act or declaration of a

person deceased, or unable to testify, in respect to the pedigree of another person
related to him by birth or marriage, may be received in evidence where it occurred
before the controversy, and the relationship between the two persons is shown by
evidence other than such act or declaration. The word "pedigree" includes
relationship, family genealogy, birth, marriage, death, the dates when and the
places where these facts occurred, and the names of the relatives. It embraces also
facts of family history intimately connected with pedigree.
 SEC. 40. Family reputation or tradition regarding pedigree. The
reputation or tradition existing in a family previous to the controversy, in respect
to the pedigree of any one of its members, may be received in evidence if the
witness testifying thereon be also a member of the family, either by consanguinity
or affinity. Entries in family bibles or other family books or charts, engraving on
rings, family portraits and the like, may be received as evidence of pedigree.

This Court's rulings further specify what incriminating acts are acceptable
as evidence to establish filiation. In Pe Lim v. CA, a case petitioner often cites, we
stated that the issue of paternity still has to be resolved by such conventional
evidence as the relevant incriminating verbal and written acts by the putative
father. Under Article 278 of the New Civil Code, voluntary recognition by a
parent shall be made in the record of birth, a will, a statement before a court of
record, or in any authentic writing. To be effective, the claim of filiation must
be made by the putative father himself and the writing must be the writing of
the putative father. A notarial agreement to support a child whose filiation is
admitted by the putative father was considered acceptable evidence. Letters to the
mother vowing to be a good father to the child and pictures of the putative father
cuddling the child on various occasions, together with the certificate of live birth,
proved filiation. However, a student permanent record, a written consent to a
father's operation, or a marriage contract where the putative father gave consent,
cannot be taken as authentic writing. Standing alone, neither a certificate of
baptism nor family pictures are sufficient to establish filiation. (Emphasis and
underscoring supplied.)

In the case at bar, there is no dispute that the earlier quoted statements in Dominiques
Autobiography have been made and written by him. Taken together with the other relevant facts
extant herein that Dominique, during his lifetime, and Jenie were living together as common-
law spouses for several months in 2005 at his parents house in Pulang-lupa, Dulumbayan,
Teresa, Rizal; she was pregnant when Dominique died on September 4, 2005; and about two
months after his death, Jenie gave birth to the child they sufficiently establish that the child of
Jenie is Dominiques.

In view of the pronouncements herein made, the Court sees it fit to adopt the following
rules respecting the requirement of affixing the signature of the acknowledging parent in any
private handwritten instrument wherein an admission of filiation of a legitimate or illegitimate
child is made:

1) Where the private handwritten instrument is the lone piece of evidence submitted to
prove filiation, there should be strict compliance with the requirement that the same must be
signed by the acknowledging parent; and

2) Where the private handwritten instrument is accompanied by other relevant and

competent evidence, it suffices that the claim of filiation therein be shown to have been made
and handwritten by the acknowledging parent as it is merely corroborative of such other
evidence.

Our laws instruct that the welfare of the child shall be the paramount consideration in
resolving questions affecting him. Article 3(1) of the United Nations Convention on the Rights of
a Child of which the Philippines is a signatory is similarly emphatic:

Article 3

1. In all actions concerning children, whether undertaken by public or

private social welfare institutions, courts of law, administrative authorities or
legislative bodies, the best interests of the child shall be a primary consideration.
(Underscoring supplied)
 It is thus (t)he policy of the Family Code to liberalize the rule on the investigation of the
paternity and filiation of children, especially of illegitimate children x x x. Too, (t)he State as
parens patriae affords special protection to children from abuse, exploitation and other
conditions prejudicial to their development.

In the eyes of society, a child with an unknown father bears the stigma of dishonor. It is
to petitioner minor childs best interests to allow him to bear the surname of the now deceased
Dominique and enter it in his birth certificate.

WHEREFORE, the petition is GRANTED. The City Civil Registrar of Antipolo City is
DIRECTED to immediately enter the surname of the late Christian Dominique Sto. Tomas
Aquino as the surname of petitioner minor Christian dela Cruz in his Certificate of Live Birth,
and record the same in the Register of Births.

FIRST DIVISION

G.R. No. 164948 June 27, 2006

DIWATA RAMOS LANDINGIN Petitioner,

vs.
REPUBLIC OF THE PHILIPPINES, Respondent.

DECISION

CALLEJO, SR., J.:

Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court is the
Decision1 of the Court of Appeals in CA-G.R. CV No. 77826 which reversed the Decision2 of the
Regional Trial Court (RTC) of Tarlac City, Branch 63 in Civil Case No. 2733 granting the
Petition for Adoption of the petitioner herein.

The Antecedents

On February 4, 2002, Diwata Ramos Landingin, a citizen of the United States of America
(USA), of Filipino parentage and a resident of Guam, USA, filed a petition3 for the adoption of
minors Elaine Dizon Ramos who was born on August 31, 1986;4 Elma Dizon Ramos, who was
born on September 7, 1987;5 and Eugene Dizon Ramos who was born on August 5, 1989.6 The
minors are the natural children of Manuel Ramos, petitioners brother, and Amelia Ramos.

Landingin, as petitioner, alleged in her petition that when Manuel died on May 19, 1990,7 the
children were left to their paternal grandmother, Maria Taruc Ramos; their biological mother,
Amelia, went to Italy, re-married there and now has two children by her second marriage and no
longer communicated with her children by Manuel Ramos nor with her in-laws from the time she
left up to the institution of the adoption; the minors are being financially supported by the
petitioner and her children, and relatives abroad; as Maria passed away on November 23, 2000,
petitioner desires to adopt the children; the minors have given their written consent8 to the
adoption; she is qualified to adopt as shown by the fact that she is a 57-year-old widow, has
children of her own who are already married, gainfully employed and have their respective
families; she lives alone in her own home in Guam, USA, where she acquired citizenship, and
works as a restaurant server. She came back to the Philippines to spend time with the minors; her
children gave their written consent9 to the adoption of the minors. Petitioners brother, Mariano
Ramos, who earns substantial income, signified his willingness and commitment to support the
minors while in petitioners custody.

Petitioner prayed that, after due hearing, judgment be rendered in her favor, as follows:

WHEREFORE, it is most respectfully prayed to this Honorable Court that after publication and
hearing, judgment be rendered allowing the adoption of the minor children Elaine Dizon Ramos,
Elma Dizon Ramos, and Eugene Dizon Ramos by the petitioner, and ordering that the minor
childrens name follow the family name of petitioner.

Petitioner prays for such other reliefs, just and equitable under the premises.10

On March 5, 2002, the court ordered the Department of Social Welfare and Development
(DSWD) to conduct a case study as mandated by Article 34 of Presidential Decree No. 603, as
amended, and to submit a report thereon not later than April 4, 2002, the date set for the initial
hearing of the petition.11 The Office of the Solicitor General (OSG) entered its appearance12 but
deputized the City Prosecutor of Tarlac to appear in its behalf.13 Since her petition was
unopposed, petitioner was allowed to present her evidence ex parte.14

The petitioner testified in her behalf. She also presented Elaine Ramos, the eldest of the
adoptees, to testify on the written consent executed by her and her siblings.15 The petitioner
marked in evidence the Affidavit of Consent purportedly executed by her children Ann, Errol,
Dennis and Ricfel Branitley, all surnamed Landingin, and notarized by a notary public in Guam,
USA, as proof of said consent.16

On May 24, 2002, Elizabeth Pagbilao, Social Welfare Officer II of the DSWD, Field Office III,
Tarlac, submitted a Child Study Report, with the following recommendation:

In view of the foregoing, undersigned finds minors Elaine, Elma & Eugene all surnamed Ramos,
eligible for adoption because of the following reasons:

1. Minors surviving parent, the mother has voluntarily consented to their adoption by the
paternal aunt, Diwata Landingin this is in view of her inability to provide the parental
care, guidance and support they need. An Affidavit of Consent was executed by the
mother which is hereto attached.

2. The three minors subject for adoption have also expressed their willingness to be
adopted and joins the petitioners in Guam, USA in the future. A joint Affidavit of consent
is hereto attached. The minors developed close attachment to the petitioners and they
regarded her as second parent.

3. The minors are present under the care of a temporary guardian who has also family to
look after. As young adolescents they really need parental love, care, guidance and
support to ensure their protection and well being.

In view of the foregoing, it is hereby respectfully recommended that minors Elaine D. Ramos,
Elma D. Ramos and Eugene D. Ramos be adopted by their maternal aunt Diwata Landingin.
Trial custody is hereby further recommended to be dispensed with considering that they are close
relatives and that close attachments was already developed between the petitioner and the 3
minors.17

Pagbilao narrated what transpired during her interview, as follows:

The mother of minors came home together with her son John Mario, this May 2002 for 3 weeks
vacation. This is to enable her appear for the personal interview concerning the adoption of her
children.

The plan for the adoption of minors by their paternal aunt Diwata Landingin was conceived after
the death of their paternal grandmother and guardian. The paternal relatives including the
petitioner who attended the wake of their mother were very much concerned about the well-
being of the three minors. While preparing for their adoption, they have asked a cousin who has a
family to stay with minors and act as their temporary guardian.

The mother of minors was consulted about the adoption plan and after weighing the benefits of
adoption to her children, she voluntarily consented. She realized that her children need parental
love, guidance and support which she could not provide as she already has a second family &
residing in Italy. Knowing also that the petitioners & her children have been supporting her
children up to the present and truly care for them, she believes her children will be in good
hands. She also finds petitioners in a better position to provide a secured and bright future to her
children.18

However, petitioner failed to present Pagbilao as witness and offer in evidence the voluntary
consent of Amelia Ramos to the adoption; petitioner, likewise, failed to present any documentary
evidence to prove that Amelia assents to the adoption.

On November 23, 2002, the court, finding merit in the petition for adoption, rendered a decision
granting said petition. The dispositive portion reads:

WHEREFORE, it is hereby ordered that henceforth, minors Elaine Dizon Ramos, Elma Dizon
Ramos, Eugene Dizon Ramos be freed from all legal obligations obedience and maintenance
from their natural parents and that they be declared for all legal intents and purposes the children
of Diwata Ramos Landingin. Trial custody is dispensed with considering that parent-children
relationship has long been established between the children and the adoptive parents. Let the
surnames of the children be changed from "Dizon-Ramos" to "Ramos-Landingin."

Let a copy of this decision be furnished the Local Civil Registrar of Tarlac, Tarlac for him to
effect the corresponding changes/amendment in the birth certificates of the above-mentioned
minors.

SO ORDERED.19

The OSG appealed20 the decision to the Court of Appeals on December 2, 2002. In its brief21 for
the oppositor-appellant, the OSG raised the following arguments:

THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE
THE LACK OF CONSENT OF THE PROPOSED ADOPTEES BIOLOGICAL MOTHER.

II

THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE
THE LACK OF THE WRITTEN CONSENT OF THE PETITIONERS CHILDREN AS
REQUIRED BY LAW.

III

THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE
PETITIONERS FAILURE TO ESTABLISH THAT SHE IS IN A POSITION TO SUPPORT
THE PROPOSED ADOPTEES.

On April 29, 2004, the CA rendered a decision22 reversing the ruling of the RTC. It held that
petitioner failed to adduce in evidence the voluntary consent of Amelia Ramos, the childrens
natural mother. Moreover, the affidavit of consent of the petitioners children could not also be
admitted in evidence as the same was executed in Guam, USA and was not authenticated or
acknowledged before a Philippine consular office, and although petitioner has a job, she was not
stable enough to support the children. The dispositive portion of the CA decision reads:

WHEREFORE, premises considered, the appealed decision dated November 25, 2002 of the
Regional Trial Court, Branch 63, Tarlac City in Spec. Proc. No. 2733 is hereby REVERSED and
SET ASIDE.

SO ORDERED.23

Petitioner filed a Motion for Reconsideration24 on May 21, 2004, which the CA denied in its
Resolution dated August 12, 2004.25

Petitioner, thus, filed the instant petition for review on certiorari26 on September 7, 2004,
assigning the following errors:

1. THAT THE HONORABLE LOWER COURT HAS OVERLOOKED AND

MISAPPLIED SOME FACTS AND CIRCUMSTANCES WHICH ARE OF WEIGHT
AND IMPORTANCE AND WHICH IF CONSIDERED WOULD HAVE AFFECTED
THE RESULT OF THE CASE.

2. THAT THE HONORABLE LOWER COURT ERRED IN CONCLUDING THAT

THE PETITIONER-APPELLEE IS NOT FINANCIALLY CAPABLE TO SUPPORT
THE THREE CHILDREN.27

The issues raised by the parties in their pleadings are the following: (a) whether the petitioner is
entitled to adopt the minors without the written consent of their biological mother, Amelia
Ramos; (b) whether or not the affidavit of consent purportedly executed by the petitioner-
adopters children sufficiently complies with the law; and (c) whether or not petitioner is
financially capable of supporting the adoptees.

The Courts Ruling

The petition is denied for lack of merit.

It has been the policy of the Court to adhere to the liberal concept, as stated in Malkinson v.
Agrava,28 that adoption statutes, being humane and salutary, hold the interest and welfare of the
child to be of paramount consideration and are designed to provide homes, parental care and
education for unfortunate, needy or orphaned children and give them the protection of society
and family in the person of the adopter as well as to allow childless couples or persons to
experience the joys of parenthood and give them legally a child in the person of the adopted for
the manifestation of their natural parental instincts. Every reasonable intendment should thus be
sustained to promote and fulfill these noble and compassionate objectives of the law.29

However, in Cang v. Court of Appeals,30 the Court also ruled that the liberality with which this
Court treats matters leading to adoption insofar as it carries out the beneficent purposes of the
law to ensure the rights and privileges of the adopted child arising therefrom, ever mindful that
the paramount consideration is the overall benefit and interest of the adopted child, should be
understood in its proper context and perspective. The Courts position should not be
misconstrued or misinterpreted as to extend to inferences beyond the contemplation of law and
jurisprudence. Thus, the discretion to approve adoption proceedings is not to be anchored solely
on best interests of the child but likewise, with due regard to the natural rights of the parents over
the child.31

Section 9 of Republic Act No. 8552, otherwise known as the Domestic Adoption Act of 1998,
provides:

Sec. 9. Whose Consent is Necessary to the Adoption. - After being properly counseled and
informed of his/her right to give or withhold his/her approval of the adoption, the written consent
of the following to the adoption is hereby required:

(a) The adoptee, if ten (10) years of age or over;

(b) The biological parent(s) of the child, if known, or the legal guardian, or the proper
government instrumentality which has legal custody of the child;

(c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the
adopter(s) and adoptee, if any;

(d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter, if living
with said adopter and the latters souse, if any;

(e) The spouse, if any, of the person adopting or to be adopted.

The general requirement of consent and notice to the natural parents is intended to protect the
natural parental relationship from unwarranted interference by interlopers, and to insure the
opportunity to safeguard the best interests of the child in the manner of the proposed adoption.32

Clearly, the written consent of the biological parents is indispensable for the validity of a decree
of adoption. Indeed, the natural right of a parent to his child requires that his consent must be
obtained before his parental rights and duties may be terminated and re-established in adoptive
parents. In this case, petitioner failed to submit the written consent of Amelia Ramos to the
adoption.

We note that in her Report, Pagbilao declared that she was able to interview Amelia Ramos who
arrived in the Philippines with her son, John Mario in May 2002. If said Amelia Ramos was in
the Philippines and Pagbilao was able to interview her, it is incredible that the latter would not
require Amelia Ramos to execute a Written Consent to the adoption of her minor children.
Neither did the petitioner bother to present Amelia Ramos as witness in support of the petition.

Petitioner, nonetheless, argues that the written consent of the biological mother is no longer
necessary because when Amelias husband died in 1990, she left for Italy and never came back.
The children were then left to the guidance and care of their paternal grandmother. It is the
paternal relatives, including petitioner, who provided for the childrens financial needs. Hence,
Amelia, the biological mother, had effectively abandoned the children. Petitioner further
contends that it was by twist of fate that after 12 years, when the petition for adoption was
pending with the RTC that Amelia and her child by her second marriage were on vacation in the
Philippines. Pagbilao, the DSWD social worker, was able to meet her, and during the meeting,
Amelia intimated to the social worker that she conformed to the adoption of her three children by
the petitioner.

Petitioners contention must be rejected. When she filed her petition with the trial court, Rep. Act
No. 8552 was already in effect. Section 9 thereof provides that if the written consent of the
biological parents cannot be obtained, the written consent of the legal guardian of the minors will
suffice. If, as claimed by petitioner, that the biological mother of the minors had indeed
abandoned them, she should, thus have adduced the written consent of their legal guardian.

Ordinarily, abandonment by a parent to justify the adoption of his child without his consent, is a
conduct which evinces a settled purpose to forego all parental duties.33 The term means neglect
and refusal to perform the filial and legal obligations of love and support. If a parent withholds
presence, love, care, the opportunity to display filial affection, and neglects to lend support and
maintenance, the parent, in effect, abandons the child.34

Merely permitting the child to remain for a time undisturbed in the care of others is not such an
abandonment.35 To dispense with the requirement of consent, the abandonment must be shown to
have existed at the time of adoption.36

In this case, petitioner relied solely on her testimony and that of Elaine Ramos to prove her claim
that Amelia Ramos had abandoned her children. Petitioners testimony on that matter follows:

Q Where is the mother of these three children now?

A She left for Italy on November 20, 1990, sir.

Q At the time when Amelia Ramos left for Italy, was there an instance where she communicated
with the family?

A None, sir.

Q How about with her children?

A None, sir.

Q Do you know what place in Italy did she reside?

A I do not know, sir.

Q Did you receive any news about Amelia Ramos?

A What I know, sir, was that she was already married with another man.

Q From whom did you learn that?

A From others who came from Italy, sir.

Q Did you come to know whether she has children by her second marriage?

A Yes, sir, she got two kids.37

Elaine, the eldest of the minors, testified, thus:

Q Where is your mother now?

A In Italy, sir.

Q When did your mother left for Italy?

A After my father died, sir.

Q How old were you when your mother left for Italy in 1990?

A Two years old, sir.

Q At the time when your mother left for Italy, did your mother communicate with you?

A No, sir.38

However, the Home Study Report of the DSWD Social Worker also stated the following:

IV. Background of the Case:

xxxx

Since the mother left for Italy, minors siblings had been under the care and custody of their
maternal grandmother. However, she died in Nov. 2001 and an uncle, cousin of their deceased
father now serves as their guardian. The petitioner, together with her children and other relatives
abroad have been supporting the minor children financially, even during the time that they were
still living with their natural parents. Their mother also sends financial support but very
minimal.39

xxxx

V. Background Information about the Minors Being Sought for Adoption:

xxxx
As the eldest she tries her best to be a role model to her younger siblings. She helps them in their
lessons, works and has fun with them. She also encourages openness on their problems and
concerns and provides petty counseling. In serious problems she already consult (sic) her mother
and petitioner-aunt.40

xxxx

In their 5 years of married life, they begot 3 children, herein minors, Amelia recalled that they
had a happy and comfortable life. After the death of her husband, her in-laws which include the
petitioner had continued providing support for them. However being ashamed of just depending
on the support of her husbands relatives, she decided to work abroad. Her parents are also in
need of financial help as they are undergoing maintenance medication. Her parents mortgaged
their farm land which she used in going to Italy and worked as domestic helper.

When she left for Italy in November 1990, she entrusted her 3 children to the care & custody of
her mother-in-law who returned home for good, however she died on November 2000.

While working in Italy, she met Jun Tayag, a married man from Tarlac. They became live-in
partners since 1995 and have a son John Mario who is now 2 years old. The three of them are
considered Italian residents. Amelia claimed that Mr. Tayag is planning to file an annulment of
his marriage and his wife is amenable to it. He is providing his legitimate family regular support.

Amelia also sends financial support ranging from P10,000-P15,000 a month through her parents
who share minimal amount of P3,000-P5,000 a month to his (sic) children. The petitioner and
other paternal relatives are continuously providing support for most of the needs & education of
minors up to present.41

Thus, when Amelia left for Italy, she had not intended to abandon her children, or to permanently
sever their mother-child relationship. She was merely impelled to leave the country by financial
constraints. Yet, even while abroad, she did not surrender or relinquish entirely her motherly
obligations of rearing the children to her now deceased mother-in-law, for, as claimed by Elaine
herself, she consulted her mother, Amelia, for serious personal problems. Likewise, Amelia
continues to send financial support to the children, though in minimal amounts as compared to
what her affluent in-laws provide.

Let it be emphasized, nevertheless, that the adoption of the minors herein will have the effect of
severing all legal ties between the biological mother, Amelia, and the adoptees, and that the same
shall then be vested on the adopter.42 It would thus be against the spirit of the law if financial
consideration were to be the paramount consideration in deciding whether to deprive a person of
parental authority over his/her children. More proof has to be adduced that Amelia has
emotionally abandoned the children, and that the latter will not miss her guidance and counsel if
they are given to an adopting parent.43 Again, it is the best interest of the child that takes
precedence in adoption.

Section 34, Rule 132 of the Rules of Court provides that the Court shall consider no evidence
which has not been formally offered. The purpose for which the evidence is offered must be
specified. The offer of evidence is necessary because it is the duty of the Court to rest its findings
of fact and its judgment only and strictly upon the evidence offered by the parties. Unless and
until admitted by the court in evidence for the purpose or purposes for which such document is
offered, the same is merely a scrap of paper barren of probative weight. Mere identification of
documents and the markings thereof as exhibits do not confer any evidentiary weight on
documents unless formally offered.44

Petitioner failed to offer in evidence Pagbilaos Report and of the Joint Affidavit of Consent
purportedly executed by her children; the authenticity of which she, likewise, failed to prove.
The joint written consent of petitioners children45 was notarized on January 16, 2002 in Guam,
USA; for it to be treated by the Rules of Court in the same way as a document notarized in this
country it needs to comply with Section 2 of Act No. 2103,46 which states:

Section 2. An instrument or document acknowledged and authenticated in a foreign country shall

be considered authentic if the acknowledgment and authentication are made in accordance with
the following requirements:

(a) The acknowledgment shall be made before (1) an ambassador, minister, secretary of
legation, charg d affaires, consul, vice-consul, or consular agent of the Republic of the
Philippines, acting within the country or place to which he is accredited, or (2) a notary
public or officer duly authorized by law of the country to take acknowledgments of
instruments or documents in the place where the act is done.

(b) The person taking the acknowledgment shall certify that the person acknowledging
the instrument or document is known to him, and that he is the same person who
executed it, and acknowledged that the same is his free act and deed. The certificate shall
be under his official seal, if he is by law required to keep a seal, and if not, his certificate
shall so state. In case the acknowledgment is made before a notary public or an officer
mentioned in subdivision (2) of the preceding paragraph, the certificate of the notary
public or the officer taking the acknowledgment shall be authenticated by an ambassador,
minister, secretary of legation, charg de affaires, consul, vice-consul, or consular agent
of the Republic of the Philippines, acting within the country or place to which he is
accredited. The officer making the authentication shall certify under his official seal that
the person who took the acknowledgment was at the time duly authorized to act as notary
public or that he was duly exercising the functions of the office by virtue of which he
assumed to act, and that as such he had authority under the law to take acknowledgment
of instruments or documents in the place where the acknowledgment was taken, and that
his signature and seal, if any, are genuine.

As the alleged written consent of petitioners legitimate children did not comply with the afore-
cited law, the same can at best be treated by the Rules as a private document whose authenticity
must be proved either by anyone who saw the document executed or written; or by evidence of
the genuineness of the signature or handwriting of the makers.47

Since, in the instant case, no further proof was introduced by petitioner to authenticate the
written consent of her legitimate children, the same is inadmissible in evidence.
In reversing the ruling of the RTC, the CA ruled that petitioner was not stable enough to support
the children and is only relying on the financial backing, support and commitment of her children
and her siblings.48 Petitioner contradicts this by claiming that she is financially capable as she has
worked in Guam for 14 years, has savings, a house, and currently earns $5.15 an hour with tips
of not less than $1,000.00 a month. Her children and siblings have likewise committed
themselves to provide financial backing should the need arise. The OSG, again in its comment,
banks on the statement in the Home Study Report that "petitioner has limited income."
Accordingly, it appears that she will rely on the financial backing of her children and siblings in
order to support the minor adoptees. The law, however, states that it is the adopter who should be
in a position to provide support in keeping with the means of the family.

Since the primary consideration in adoption is the best interest of the child, it follows that the
financial capacity of prospective parents should also
be carefully evaluated and considered. Certainly, the adopter should be in a position to support
the would-be adopted child or children, in keeping with the means of the family.

According to the Adoption Home Study Report49 forwarded by the Department of Public Health
& Social Services of the Government of Guam to the DSWD, petitioner is no longer supporting
her legitimate children, as the latter are already adults, have individual lives and families. At the
time of the filing of the petition, petitioner was 57 years old, employed on a part-time basis as a
waitress, earning $5.15 an hour and tips of around $1,000 a month. Petitioners main intention in
adopting the children is to bring the latter to Guam, USA. She has a house at Quitugua
Subdivision in Yigo, Guam, but the same is still being amortized. Petitioner likewise knows that
the limited income might be a hindrance to the adoption proceedings.

Given these limited facts, it is indeed doubtful whether petitioner will be able to sufficiently
handle the financial aspect of rearing the three children in the US. She only has a part-time job,
and she is rather of age. While petitioner claims that she has the financial support and backing of
her children and siblings, the OSG is correct in stating that the ability to support the adoptees is
personal to the adopter, as adoption only creates a legal relation between the former and the
latter. Moreover, the records do not prove nor support petitioners allegation that her siblings and
her children are financially able and that they are willing to support the minors herein. The
Court, therefore, again sustains the ruling of the CA on this issue.

While the Court recognizes that petitioner has only the best of intentions for her nieces and
nephew, there are legal infirmities that militate against reversing the ruling of the CA. In any
case, petitioner is not prevented from filing a new petition for adoption of the herein minors.

WHEREFORE, premises considered, the petition is hereby DENIED.

SO ORDERED.

FIRST DIVISION
IN RE: PETITION FOR G.R. Nos. 168992-93

ADOPTION OF MICHELLE P.

LIM, Present:

MONINA P. LIM, PUNO, C.J., Chairperson,

Petitioner. CARPIO,

x-----------------------x CORONA,

LEONARDO-DE CASTRO, and

IN RE: PETITION FOR BERSAMIN, JJ.

ADOPTION OF MICHAEL JUDE

P. LIM,

Promulgated:

MONINA P. LIM,

Petitioner. May 21, 2009

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

DECISION

CARPIO, J.:
The Case

This is a petition for review on certiorari filed by Monina P. Lim (petitioner) seeking to set
aside the Decision dated 15 September 2004 of the Regional Trial Court, General Santos City,
Branch 22 (trial court), in SPL. PROC. Case Nos. 1258 and 1259, which dismissed without
prejudice the consolidated petitions for adoption of Michelle P. Lim and Michael Jude P. Lim.

The Facts

The following facts are undisputed. Petitioner is an optometrist by profession. On 23 June

1974, she married Primo Lim (Lim). They were childless. Minor children, whose parents were
unknown, were entrusted to them by a certain Lucia Ayuban (Ayuban). Being so eager to have a
child of their own, petitioner and Lim registered the children to make it appear that they were the
childrens parents. The children were named Michelle P. Lim (Michelle) and Michael Jude P.
Lim (Michael). Michelle was barely eleven days old when brought to the clinic of petitioner. She
was born on 15 March 1977. Michael was 11 days old when Ayuban brought him to petitioners
clinic. His date of birth is 1 August 1983.

The spouses reared and cared for the children as if they were their own. They sent the
children to exclusive schools. They used the surname Lim in all their school records and
documents. Unfortunately, on 28 November 1998, Lim died. On 27 December 2000, petitioner
married Angel Olario (Olario), an American citizen.
 Thereafter, petitioner decided to adopt the children by availing of the amnesty given under
Republic Act No. 8552 (RA 8552) to those individuals who simulated the birth of a child. Thus,
on 24 April 2002, petitioner filed separate petitions for the adoption of Michelle and Michael
before the trial court docketed as SPL PROC. Case Nos. 1258 and 1259, respectively. At the
time of the filing of the petitions for adoption, Michelle was 25 years old and already married,
while Michael was 18 years and seven months old.

Michelle and her husband gave their consent to the adoption as evidenced by their
Affidavits of Consent. Michael also gave his consent to his adoption as shown in his Affidavit of
Consent. Petitioners husband Olario likewise executed an Affidavit of Consent for the adoption
of Michelle and Michael.

In the Certification issued by the Department of Social Welfare and Development (DSWD),
Michelle was considered as an abandoned child and the whereabouts of her natural parents were
unknown. The DSWD issued a similar Certification for Michael.

The Ruling of the Trial Court

On 15 September 2004, the trial court rendered judgment dismissing the petitions. The trial
court ruled that since petitioner had remarried, petitioner should have filed the petition jointly
with her new husband. The trial court ruled that joint adoption by the husband and the wife is
mandatory citing Section 7(c), Article III of RA 8552 and Article 185 of the Family Code.
 Petitioner filed a Motion for Reconsideration of the decision but the motion was denied in
the Order dated 16 June 2005. In denying the motion, the trial court ruled that petitioner did not
fall under any of the exceptions under Section 7(c), Article III of RA 8552. Petitioners argument
that mere consent of her husband would suffice was untenable because, under the law, there are
additional requirements, such as residency and certification of his qualification, which the
husband, who was not even made a party in this case, must comply.

As to the argument that the adoptees are already emancipated and joint adoption is merely
for the joint exercise of parental authority, the trial court ruled that joint adoption is not only for
the purpose of exercising parental authority because an emancipated child acquires certain rights
from his parents and assumes certain obligations and responsibilities.

Hence, the present petition.

Issue

Petitioner appealed directly to this Court raising the sole issue of whether or not petitioner,
who has remarried, can singly adopt.
The Courts Ruling

Petitioner contends that the rule on joint adoption must be relaxed because it is the duty of
the court and the State to protect the paramount interest and welfare of the child to be adopted.
Petitioner argues that the legal maxim dura lex sed lex is not applicable to adoption cases. She
argues that joint parental authority is not necessary in this case since, at the time the petitions
were filed, Michelle was 25 years old and already married, while Michael was already 18 years
of age. Parental authority is not anymore necessary since they have been emancipated having
attained the age of majority.

We deny the petition.

Joint Adoption by Husband and Wife

It is undisputed that, at the time the petitions for adoption were filed, petitioner had already
remarried. She filed the petitions by herself, without being joined by her husband Olario. We
have no other recourse but to affirm the trial courts decision denying the petitions for adoption.
Dura lex sed lex. The law is explicit. Section 7, Article III of RA 8552 reads:

SEC. 7. Who May Adopt. - The following may adopt:

(a) Any Filipino citizen of legal age, in possession of full civil capacity
and legal rights, of good moral character, has not been convicted of any crime
involving moral turpitude, emotionally and psychologically capable of caring for
children, at least sixteen (16) years older than the adoptee, and who is in a
position to support and care for his/her children in keeping with the means of the
family. The requirement of sixteen (16) year difference between the age of the
adopter and adoptee may be waived when the adopter is the biological parent of
the adoptee, or is the spouse of the adoptees parent;

(b) Any alien possessing the same qualifications as above stated for
Filipino nationals: Provided, That his/her country has diplomatic relations with
the Republic of the Philippines, that he/she has been living in the Philippines for
at least three (3) continuous years prior to the filing of the application for adoption
and maintains such residence until the adoption decree is entered, that he/she has
been certified by his/her diplomatic or consular office or any appropriate
government agency that he/she has the legal capacity to adopt in his/her country,
and that his/her government allows the adoptee to enter his/her country as his/her
adopted son/daughter: Provided, further, That the requirements on residency and
certification of the aliens qualification to adopt in his/her country may be waived
for the following:

(i) a former Filipino citizen who seeks to adopt a relative within the
fourth (4th) degree of consanguinity or affinity; or

(ii) one who seeks to adopt the legitimate son/daughter of his/her

Filipino spouse; or

(iii) one who is married to a Filipino citizen and seeks to adopt

jointly with his/her spouse a relative within the fourth (4th) degree of
consanguinity or affinity of the Filipino spouses; or

(c) The guardian with respect to the ward after the termination of the
guardianship and clearance of his/her financial accountabilities.

Husband and wife shall jointly adopt, except in the following cases:

(i) if one spouse seeks to adopt the legitimate son/daughter of the

other; or

(ii) if one spouse seeks to adopt his/her own illegitimate

son/daughter: Provided, however, That the other spouse has signified
his/her consent thereto; or

(iii) if the spouses are legally separated from each other.

In case husband and wife jointly adopt, or one spouse adopts the
illegitimate son/daughter of the other, joint parental authority shall be exercised by
the spouses. (Emphasis supplied)
 The use of the word shall in the above-quoted provision means that joint adoption by the
husband and the wife is mandatory. This is in consonance with the concept of joint parental
authority over the child which is the ideal situation. As the child to be adopted is elevated to the
level of a legitimate child, it is but natural to require the spouses to adopt jointly. The rule also
insures harmony between the spouses.

The law is clear. There is no room for ambiguity. Petitioner, having remarried at the time
the petitions for adoption were filed, must jointly adopt. Since the petitions for adoption were
filed only by petitioner herself, without joining her husband, Olario, the trial court was correct in
denying the petitions for adoption on this ground.

Neither does petitioner fall under any of the three exceptions enumerated in Section 7.
First, the children to be adopted are not the legitimate children of petitioner or of her husband
Olario. Second, the children are not the illegitimate children of petitioner. And third, petitioner
and Olario are not legally separated from each other.

The fact that Olario gave his consent to the adoption as shown in his Affidavit of Consent
does not suffice. There are certain requirements that Olario must comply being an American
citizen. He must meet the qualifications set forth in Section 7 of RA 8552 such as: (1) he must
prove that his country has diplomatic relations with the Republic of the Philippines; (2) he must
have been living in the Philippines for at least three continuous years prior to the filing of the
application for adoption; (3) he must maintain such residency until the adoption decree is
entered; (4) he has legal capacity to adopt in his own country; and (5) the adoptee is allowed to
enter the adopters country as the latters adopted child. None of these qualifications were shown
and proved during the trial.
 These requirements on residency and certification of the aliens qualification to adopt
cannot likewise be waived pursuant to Section 7. The children or adoptees are not relatives
within the fourth degree of consanguinity or affinity of petitioner or of Olario. Neither are the
adoptees the legitimate children of petitioner.

Effects of Adoption

Petitioner contends that joint parental authority is not anymore necessary since the children
have been emancipated having reached the age of majority. This is untenable.

Parental authority includes caring for and rearing the children for civic consciousness and
efficiency and the development of their moral, mental and physical character and well-being.
The father and the mother shall jointly exercise parental authority over the persons of their
common children. Even the remarriage of the surviving parent shall not affect the parental
authority over the children, unless the court appoints another person to be the guardian of the
person or property of the children.

It is true that when the child reaches the age of emancipation that is, when he attains the
age of majority or 18 years of age emancipation terminates parental authority over the person
and property of the child, who shall then be qualified and responsible for all acts of civil life.
However, parental authority is merely just one of the effects of legal adoption. Article V of RA
8552 enumerates the effects of adoption, thus:
 ARTICLE V

EFFECTS OF ADOPTION

SEC. 16. Parental Authority. - Except in cases where the biological parent
is the spouse of the adopter, all legal ties between the biological parent(s) and the
adoptee shall be severed and the same shall then be vested on the adopter(s).

SEC. 17. Legitimacy. - The adoptee shall be considered the legitimate

son/daughter of the adopter(s) for all intents and purposes and as such is entitled
to all the rights and obligations provided by law to legitimate sons/daughters born
to them without discrimination of any kind. To this end, the adoptee is entitled to
love, guidance, and support in keeping with the means of the family.

SEC. 18. Succession. - In legal and intestate succession, the adopter(s) and
the adoptee shall have reciprocal rights of succession without distinction from
legitimate filiation. However, if the adoptee and his/her biological parent(s) had
left a will, the law on testamentary succession shall govern.

Adoption has, thus, the following effects: (1) sever all legal ties between the biological
parent(s) and the adoptee, except when the biological parent is the spouse of the adopter; (2)
deem the adoptee as a legitimate child of the adopter; and (3) give adopter and adoptee reciprocal
rights and obligations arising from the relationship of parent and child, including but not limited
to: (i) the right of the adopter to choose the name the child is to be known; and (ii) the right of
the adopter and adoptee to be legal and compulsory heirs of each other. Therefore, even if
emancipation terminates parental authority, the adoptee is still considered a legitimate child of
the adopter with all the rights of a legitimate child such as: (1) to bear the surname of the father
and the mother; (2) to receive support from their parents; and (3) to be entitled to the legitime
and other successional rights. Conversely, the adoptive parents shall, with respect to the adopted
child, enjoy all the benefits to which biological parents are entitled such as support and
successional rights.

We are mindful of the fact that adoption statutes, being humane and salutary, hold the
interests and welfare of the child to be of paramount consideration. They are designed to provide
homes, parental care and education for unfortunate, needy or orphaned children and give them
the protection of society and family, as well as to allow childless couples or persons to
experience the joys of parenthood and give them legally a child in the person of the adopted for
the manifestation of their natural parental instincts. Every reasonable intendment should be
sustained to promote and fulfill these noble and compassionate objectives of the law. But, as we
have ruled in Republic v. Vergara:

We are not unmindful of the main purpose of adoption statutes, which is

the promotion of the welfare of the children. Accordingly, the law should be
construed liberally, in a manner that will sustain rather than defeat said purpose.
The law must also be applied with compassion, understanding and less severity in
view of the fact that it is intended to provide homes, love, care and education for
less fortunate children. Regrettably, the Court is not in a position to affirm the trial
courts decision favoring adoption in the case at bar, for the law is clear and it
cannot be modified without violating the proscription against judicial
legislation. Until such time however, that the law on the matter is amended, we
cannot sustain the respondent-spouses petition for adoption. (Emphasis supplied)

Petitioner, being married at the time the petitions for adoption were filed, should have jointly
filed the petitions with her husband. We cannot make our own legislation to suit petitioner.

Petitioner, in her Memorandum, insists that subsequent events would show that joint
adoption could no longer be possible because Olario has filed a case for dissolution of his
marriage to petitioner in the Los Angeles Superior Court.

We disagree. The filing of a case for dissolution of the marriage between petitioner and
Olario is of no moment. It is not equivalent to a decree of dissolution of marriage. Until and
unless there is a judicial decree for the dissolution of the marriage between petitioner and Olario,
the marriage still subsists. That being the case, joint adoption by the husband and the wife is
required. We reiterate our ruling above that since, at the time the petitions for adoption were
filed, petitioner was married to Olario, joint adoption is mandatory.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 15 September

2004 of the Regional Trial Court, General Santos City, Branch 22 in SPL. PROC. Case Nos.
1258 and 1259. Costs against petitioner.

SECOND DIVISION

G.R. No. 156013 July 25, 2006

ROBERTO P. DE GUZMAN, petitioner,

vs.
HERNANDO B. PEREZ, in his capacity as Secretary of Justice, and SHIRLEY F.
ABERDE, respondents.

DECISION

CORONA, J.:

May a parent who fails or refuses to do his part in providing his child the education his station in
life and financial condition permit, be charged for neglect of child under Article 59(4)1 of PD
603?2

In this petition for certiorari,3 petitioner Roberto P. de Guzman assails the January 3, 2002
resolution of public respondent, then Justice Secretary Hernando B. Perez, dismissing de
Guzmans petition for review of the City Prosecutor of Lipa Citys resolution in I.S. No. 2000-
2111. Likewise questioned is public respondents September 24, 2002 resolution denying
reconsideration.
Petitioner and private respondent Shirley F. Aberde became sweethearts while studying law in
the University of Sto. Tomas. Their studies were interrupted when private respondent became
pregnant. She gave birth to petitioners child, Robby Aberde de Guzman, on October 2, 1987.

Private respondent and petitioner never got married. In 1991, petitioner married another woman
with whom he begot two children.

Petitioner sent money for Robbys schooling only twice the first in 1992 and the second in
1993. In 1994, when Robby fell seriously ill, petitioner gave private respondent P7,000 to help
defray the cost of the childs hospitalization and medical expenses. Other than these instances,
petitioner never provided any other financial support for his son.

In 1994, in order to make ends meet and to provide for Robbys needs, private respondent
accepted a job as a factory worker in Taiwan where she worked for two years. It was only
because of her short stint overseas that she was able to support Robby and send him to school.
However, she reached the point where she had just about spent all her savings to provide for her
and Robbys needs. The childs continued education thus became uncertain.

On the other hand, petitioner managed the de Guzman family corporations. He apparently did
well as he led a luxurious lifestyle. He owned at least five luxury cars, lived in a palatial home in
the exclusive enclave of Ayala Heights Subdivision, Quezon City, built a bigger and more
extravagant house in the same private community, and sent his children (by his wife) to
expensive schools in Metro Manila. He also regularly traveled abroad with his family. Despite
his fabulous wealth, however, petitioner failed to provide support to Robby.

In a letter dated February 21, 2000, private respondent demanded support for Robby who was
entering high school that coming schoolyear (June 2000). She explained that, given her financial
problems, it was extremely difficult for her to send him to a good school.

Petitioner ignored private respondents demand. The latter was thus forced to rely on the charity
of her relatives so that she could enroll her son in De La Salle high school in Lipa City.

On June 15, 2000, private respondent filed a criminal complaint4 for abandonment and neglect of
child under Article 59(2) and (4) of PD 603 with the Office of the City Prosecutor of Lipa City. It
was docketed as I.S. No. 2000-2111.

In his counter-affidavit,5 petitioner averred that he never abandoned nor intended to abandon
Robby whom he readily acknowledged as his son. He claimed that he discharged his
responsibilities as a father and said that he paid P7,000 for his sons hospitalization and medical
needs. He also shouldered the expenses of Robbys birth and sent money to help out when Robby
was sick or was in need of money. Claiming financial incapacity, he insisted that the acts
attributed to him did not constitute abandonment or neglect.

Petitioner pointed out that private respondent was the financially capable parent while he had no
fixed job and merely depended on the charity of his father. He asserted that the five luxury cars
belonged not to him but to Balintawak Cloverleaf Market Corporation. He denied ownership of
the big house in Ayala Heights Subdivision, Quezon City. He lived there with his family only by
tolerance of his father. He also disclaimed ownership of the newly constructed house and again
pointed to his father as the owner. Even the schooling of his two children (by his wife) was
shouldered by his father.

On August 1, 2000, private respondent submitted her reply-affidavit.6 To prove petitioners

financial capacity to support Robbys education, she attached a notarized copy of the General
Information Sheet (GIS) of the RNCD Development Corporation. It showed that petitioner
owned P750,000 worth of paid-up corporate shares.

In his rejoinder-affidavit,7 petitioner maintained that his equity in the RNCD Development
Corporation belonged in reality to his father. The shares were placed in his name only because he
had no means to invest in the corporation. He could not use, withdraw, assign or alienate his
shares. Moreover, the corporation was virtually dormant and petitioner did not receive any
compensation as its secretary.

On August 15, 2000, the City Prosecutor of Lipa City issued his resolution8 dismissing the
complaint for abandonment but finding probable cause to charge petitioner with neglect of child
punishable under Article 59(4) of PD 603 in relation to Section 10(a)9 of RA 7610.10

On August 25, 2000, an information was filed before Branch 85 of the Regional Trial Court of
Lipa City for the crime of neglecting a minor child. It was docketed as Criminal Case No. 0431-
00.

Before petitioner could be arraigned, however, he filed a petition for review of the City
Prosecutors resolution with the Secretary of Justice.

On January 3, 2002, public respondent dismissed the petition for review and affirmed the City
Prosecutors resolution.11 He found that petitioners ostentatious and luxurious lifestyle
constituted circumstantial evidence of his ample financial resources and high station in life.
Petitioner did not deny allegations that he failed to send a single centavo for the education of his
son. All the elements of the offense were therefore sufficiently established. Petitioners claim that
everything he had belonged to his father was a defense which should properly be raised only
during trial.12

Petitioner sought reconsideration but the same was denied.13 Hence, this petition.

Petitioner contends that public respondent acted with grave abuse of discretion in sustaining the
City Prosecutors resolution. He insists that there is no probable cause to justify his prosecution
for neglect of a minor child. First, he is financially incapable to give support. One can only be
charged with neglect if he has the means but refuses to give it. Second, Robby is not a neglected
child. He has been given, albeit by private respondent who is the financially capable parent, the
requisite education he is entitled to.

The petition is without merit.

The rule is that judicial review of the resolution of the Secretary of Justice is limited to a
determination of whether it is tainted with grave abuse of discretion amounting to lack or excess
of jurisdiction.14 Courts are without power to substitute their judgment for that of the executive
branch.15 They may only look into the question of whether such exercise has been made in grave
abuse of discretion.16

Grave abuse of discretion is such capricious and whimsical exercise of judgment which amounts
to an excess or lack of jurisdiction.17 Where it is not shown that the findings complained of are
wholly devoid of evidentiary support or that they are patently erroneous as to constitute serious
abuse of discretion, the findings must be sustained.18

The assailed resolutions of public respondent were supported by evidence on record and
grounded in law. They were not issued in a capricious, whimsical or arbitrary manner. There is
therefore no reason to countermand them.

Petitioner is charged with neglect of child punishable under Article 59(4) of PD 603 which
provides that:

Art. 59. Crimes. Criminal liability shall attach to any parent who:

xxx xxx xxx

(4) Neglects the child by not giving him the education which the familys station in life
and financial conditions permit.

xxx xxx xxx

The crime has the following elements:

(1) the offender is a parent;

(2) he or she neglects his or her own child;

(3) the neglect consists in not giving education to the child and

(4) the offenders station in life and financial condition permit him to give an appropriate
education to the child.

Here, petitioner acknowledged Robby as his son. He has not denied that he never contributed for
his education except in two instances (1992 and 1993). He admitted that the boys education was
being financed by private respondent and her relatives. He stated under oath that the last time he
sent material support to his son was in 1994 when he gave P7,000 for the latters hospitalization
and medical expenses.
There is a prima facie showing from the evidence that petitioner is in fact financially capable of
supporting Robbys education. The notarized GIS of the RNCD Development Corporation
indicates that petitioner owns P750,000 worth of paid-up shares in the company.

Petitioners assertion that the GIS is not evidence of his financial capability (since the shares are
allegedly owned by his father) is of no moment. The claimis factual and evidentiary, and
therefore a defense which should be interposed during the trial.

The argument that criminal liability for neglect of child under Article 59(4) of PD 603 attaches
only if both parents are guilty of neglecting the childs education does not hold water.

The law is clear. The crime may be committed by any parent. Liability for the crime does not
depend on whether the other parent is also guilty of neglect. The law intends to punish the
neglect of any parent, which neglect corresponds to the failure to give the child the education
which the familys station in life and financial condition permit. The irresponsible parent cannot
exculpate himself from the consequences of his neglect by invoking the other parents faithful
compliance with his or her own parental duties.

Petitioners position goes against the intent of the law. To allow the neglectful parent to shield
himself from criminal liability defeats the prescription that in all questions regarding the care,
custody, education and property of the child, his welfare shall be the paramount consideration.19

However, while petitioner can be indicted for violation of Article 59(4) of PD 603, the charge
against him cannot be made in relation to Section 10(a) of RA 7610 which provides:

SEC. 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions
Prejudicial to the Childs Development.

(a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or
be responsible for other conditions prejudicial to the childs development including those
covered by Article 59 of PD No. 603, as amended, but not covered by the Revised
Penal Code, as amended, shall suffer the penalty of prision mayor in its minimum
period. (emphasis supplied)

xxx xxx xxx

The law expressly penalizes any person who commits other acts of neglect, child abuse, cruelty
or exploitation or be responsible for other conditions prejudicial to the childs development
including those covered by Article 59 of PD 603 "but not covered by the Revised Penal Code."

The "neglect of child" punished under Article 59(4) of PD 603 is also a crime (known as
"indifference of parents") penalized under the second paragraph of Article 277 of the Revised
Penal Code.20 Hence, it is excluded from the coverage of RA 7610.

We make no determination of petitioners guilt or innocence of the crime charged. The

presumption of innocence in his favor still stands. What has been ascertained is simply the
existence of probable cause for petitioners indictment for the charge against him, that is,
whether there is sufficient ground to engender a well-founded belief that a crime has been
committed and that petitioner is probably guilty thereof, and should thus be held for trial.
Petitioners guilt should still be proven beyond reasonable doubt in Criminal Case No. 0431-00.

WHEREFORE, the petition is hereby DISMISSED.

FIRST DIVISION

G.R. No. 125041 June 30, 2006

MA. BELEN B. MANGONON, for and in behalf of her minor children REBECCA
ANGELA DELGADO and REGINA ISABEL DELGADO. Petitioner,
vs.
HON. COURT OF APPEALS, HON. JUDGE JOSEFINA GUEVARA-SALONGA,
Presiding Judge, RTC-Makati, Branch 149, FEDERICO C. DELGADO and FRANCISCO
C. DELGADO, Respondents.

DECISION

CHICO-NAZARIO, J.:

Before Us is a Petition for Review on Certiorari assailing the Decision1 of the Court of Appeals
dated 20 March 1996, affirming the Order, dated 12 September 19952 of the Regional Trial Court
(RTC), Branch 149, Makati, granting support pendente lite to Rebecca Angela (Rica) and Regina
Isabel (Rina), both surnamed Delgado.

The generative facts leading to the filing of the present petition are as follows:

On 17 March 1994, petitioner Ma. Belen B. Mangonon filed, in behalf of her then minor children
Rica and Rina, a Petition for Declaration of Legitimacy and Support, with application for support
pendente lite with the RTC Makati.3 In said petition, it was alleged that on 16 February 1975,
petitioner and respondent Federico Delgado were civilly married by then City Court Judge
Eleuterio Agudo in Legaspi City, Albay. At that time, petitioner was only 21 years old while
respondent Federico was only 19 years old. As the marriage was solemnized without the required
consent per Article 85 of the New Civil Code,4 it was annulled on 11 August 1975 by the Quezon
City Juvenile and Domestic Relations Court.5

On 25 March 1976, or within seven months after the annulment of their marriage, petitioner gave
birth to twins Rica and Rina. According to petitioner, she, with the assistance of her second
husband Danny Mangonon, raised her twin daughters as private respondents had totally
abandoned them. At the time of the institution of the petition, Rica and Rina were about to enter
college in the United States of America (USA) where petitioner, together with her daughters and
second husband, had moved to and finally settled in. Rica was admitted to the University of
Massachusetts (Amherst) while Rina was accepted by the Long Island University and Western
New England College. Despite their admissions to said universities, Rica and Rina were,
however, financially incapable of pursuing collegiate education because of the following:

i) The average annual cost for college education in the US is about US$22,000/year,
broken down as follows:

Tuition Fees US$13,000.00

Room & Board 5,000.00

Books 1,000.00

Yearly Transportation &

Meal Allowance 3,000.00

Total US$ 22,000.00

or a total of US$44,000.00, more or less, for both Rica and Rina

ii) Additionally, Rica and Rina need general maintenance support each in the amount of
US$3,000.00 per year or a total of US$6,000 per year.

iii) Unfortunately, petitioners monthly income from her 2 jobs is merely US$1,200 after
taxes which she can hardly give general support to Rica and Rina, much less their
required college educational support.

iv) Neither can petitioners present husband be compelled to share in the general support
and college education of Rica and Rina since he has his own son with petitioner and own
daughter (also in college) to attend to.

v) Worse, Rica and Rinas petitions for Federal Student Aid have been rejected by the
U.S. Department of Education.6

Petitioner likewise averred that demands7 were made upon Federico and the latters father,
Francisco,8 for general support and for the payment of the required college education of Rica and
Rina. The twin sisters even exerted efforts to work out a settlement concerning these matters
with respondent Federico and respondent Francisco, the latter being generally known to be
financially well-off.9 These demands, however, remained unheeded. Considering the impending
deadline for admission to college and the opening of classes, petitioner and her then minor
children had no choice but to file the petition before the trial court.

Petitioner also alleged that Rica and Rina are her legitimate daughters by respondent Federico
since the twin sisters were born within seven months from the date of the annulment of her
marriage to respondent Federico. However, as respondent Federico failed to sign the birth
certificates of Rica and Rina, it was imperative that their status as legitimate children of
respondent Federico, and as granddaughters of respondent Francisco, be judicially declared
pursuant to Article 173 of the Family Code.10

As legitimate children and grandchildren, Rica and Rina are entitled to general and educational
support under Articles 17411 and 195(b)12 in relation to Articles 194(1 and 2)13 and 199(c)14 of the
Family Code. Petitioner alleged that under these provisions, in case of default on the part of the
parents, the obligation to provide support falls upon the grandparents of the children; thus,
respondent Federico, or in his default, respondent Francisco should be ordered to provide general
and educational support for Rica and Rina in the amount of US$50,000.00, more or less, per
year.

Petitioner also claimed that she was constrained to seek support pendente lite from private
respondents - who are millionaires with extensive assets both here and abroad - in view of the
imminent opening of classes, the possibility of a protracted litigation, and Rica and Rinas lack
of financial means to pursue their college education in the USA.

In his Answer,15 respondent Francisco stated that as the birth certificates of Rica and Rina do not
bear the signature of respondent Federico, it is essential that their legitimacy be first established
as "there is no basis to claim support until a final and executory judicial declaration has been
made as to the civil status of the children."16 Whatever good deeds he may have done to Rica and
Rina, according to respondent Francisco, was founded on pure acts of Christian charity. He,
likewise, averred that the order of liability for support under Article 199 of the Family Code is
not concurrent such that the obligation must be borne by those more closely related to the
recipient. In this case, he maintained that responsibility should rest on the shoulders of petitioner
and her second husband, the latter having voluntarily assumed the duties and responsibilities of a
natural father. Even assuming that he is responsible for support, respondent Francisco contends
that he could not be made to answer beyond what petitioner and the father could afford.

On 24 May 1994, petitioner filed a Motion to Declare Defendant (respondent herein) Federico in
Default.17 This was favorably acted upon by the trial court in the Order dated 16 June 1994.18

On 5 August 1994, respondent Federico filed a Motion to Lift Order of Default alleging that the
summons and a copy of the petition were not served in his correct address.19 Attached thereto
was his Answer20 where he claimed that petitioner had no cause of action against him. According
to him, he left for abroad and stayed there for a long time "[w]ithin the first one hundred twenty
(120) days of the three hundred days immediately preceding March 25, 1976" and that he only
came to know about the birth of Rica and Rina when the twins introduced themselves to him
seventeen years later. In order not to antagonize the two, respondent Federico claimed he did not
tell them that he could not be their father. Even assuming that Rica and Rina are, indeed, his
daughters, he alleged that he could not give them the support they were demanding as he was
only making P40,000.00 a month.

Finding sufficient ground in the motion filed by respondent Federico, the trial court lifted its
Order dated 16 June 1994 and admitted his Answer.21
In the meantime, on 25 April 1994, petitioner filed an Urgent Motion to Set Application for
Support Pendente Lite for Hearing because Rica and Rina both badly needed immediate financial
resources for their education.22 This Motion was opposed by respondent Francisco.23 After both
parties submitted supplemental pleadings to bolster their respective positions, the trial court
resolved the motion in an Order dated 12 September 1995 in this wise:

WHEREFORE, in the light of the foregoing considerations, respondents are hereby directed to
provide a monthly support (pendente lite) of P5,000.00 each or a total of P10,000.00 for the
education of Rebecca Angela and Regina Isabel Delgado to be delivered within the first five days
of each month without need of demand.24

Unsatisfied with the Order of the trial court, petitioner brought the case to the Court of Appeals
via Petition for Certiorari. The Court of Appeals affirmed the holding of the trial court and
disposed the petition in the following manner:

WHEREFORE, the petition for certiorari is hereby DISMISSED and the Order of the lower
court dated September 12, 1995 is hereby AFFIRMED.25

Petitioners Motion for Reconsideration was denied through the Resolution of the Court of
Appeals dated 16 May 1996.26

Petitioner is now before this Court claiming that the Decision of the Court of Appeals was tainted
with the following errors:

RESPONDENT COURT OF APPEALS ERRED IN CONCLUDING THAT RESPONDENT

JUDGE DID NOT COMMIT GRAVE ABUSE OF DISCRETION IN FIXING THE AMOUNT
OF MONTHLY SUPPORT PENDENTE LITE GRANTED TO PETITIONERS CHILDREN AT
A MEASLEY P5,000.00 PER CHILD.

I.

RESPONDENT COURT IGNORED EVIDENCE ON RECORD OF THE FINANCIAL

INCAPACITY OF RICA AND RINAS PARENTS IN DEFAULT OF WHOM THE
OBLIGATION TO GIVE SUPPORT DEVOLVES ON THE GRANDFATHER.

II.

IT BEING ESTABLISHED THAT THE PERSON OBLIGED TO GIVE SUPPORT

GRANDFATHER DON PACO IS UNDOUBTEDLY CAPABLE OF GIVING THE AMOUNT
DEMANDED, RESPONDENT COURT ERRED IN NOT HOLDING THAT RESPONDENT
JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION IN FIXING AN AMOUNT OF
SUPPORT PENDENTE LITE THAT IS OBVIOUSLY INADEQUATE TO SUPPORT THE
EDUCATIONAL REQUIREMENTS OF THE RECIPIENTS.27

At the time of the filing of the present Petition, it is alleged that Rica had already entered Rutgers
University in New Jersey with a budget of US$12,500.00 for academic year 1994-1995. She was
able to obtain a tuition fee grant of US$1,190.00 and a Federal Stafford loan from the US
government in the amount of US$2,615.00.28 In order to defray the remaining balance of Ricas
education for said school year, petitioner claims that she had to secure a loan under the Federal
Direct Student Loan Program.

Meanwhile, Rina entered CW Post, Long Island University, where she was expected to spend
US$20,000.00 for the school year 1994-1995. She was given a financial grant of US$6,000.00,
federal work study assistance of US$2,000.00, and a Federal Stafford loan of US$2,625.00.29
Again, petitioner obtained a loan to cover the remainder of Rinas school budget for the year.

Petitioner concedes that under the law, the obligation to furnish support to Rica and Rina should
be first imposed upon their parents. She contends, however, that the records of this case
demonstrate her as well as respondent Federicos inability to give the support needed for Rica
and Rinas college education. Consequently, the obligation to provide support devolves upon
respondent Francisco being the grandfather of Rica and Rina.

Petitioner also maintains that as respondent Francisco has the financial resources to help defray
the cost of Rica and Rinas schooling, the Court of Appeals then erred in sustaining the trial
courts Order directing respondent Federico to pay Rica and Rina the amount of award P5,000.00
each as monthly support pendente lite.

On the other hand, respondent Francisco argues that the trial court correctly declared that
petitioner and respondent Federico should be the ones to provide the support needed by their
twin daughters pursuant to Article 199 of the Family Code. He also maintains that aside from the
financial package availed of by Rica and Rina in the form of state tuition aid grant, work study
program and federal student loan program, petitioner herself was eligible for, and had availed
herself of, the federal parent loan program based on her income and properties in the USA. He,
likewise, insists that assuming he could be held liable for support, he has the option to fulfill the
obligation either by paying the support or receiving and maintaining in the dwelling here in the
Philippines the person claiming support.30 As an additional point to be considered by this Court,
he posits the argument that because petitioner and her twin daughters are now US citizens, they
cannot invoke the Family Code provisions on support as "[l]aws relating to family rights and
duties, or to the status, condition and legal capacity of persons are binding upon citizens of the
Philippines, even though living abroad."31

Respondent Federico, for his part, continues to deny having sired Rica and Rina by reiterating
the grounds he had previously raised before the trial court. Like his father, respondent Federico
argues that assuming he is indeed the father of the twin sisters, he has the option under the law as
to how he would provide support. Lastly, he assents with the declaration of the trial court and the
Court of Appeals that the parents of a child should primarily bear the burden of providing
support to their offspring.

The petition is meritorious.

As a preliminary matter, we deem it necessary to briefly discuss the essence of support pendente
lite. The pertinent portion of the Rules of Court on the matter provides:
Rule 61
SUPPORT PENDENTE LITE

SECTION 1. Application.- At the commencement of the proper action or proceeding, or at any

time prior to the judgment or final order, a verified application for support pendente lite may be
filed by any party stating the grounds for the claim and the financial conditions of both parties,
and accompanied by affidavits, depositions or other authentic documents in support thereof.

xxxx

SEC. 4. Order.- The court shall determine provisionally the pertinent facts, and shall render such
orders as justice and equity may require, having due regard to the probable outcome of the case
and such other circumstances as may aid in the proper resolution of the question involved. If the
application is granted, the court shall fix the amount of money to be provisionally paid or such
other forms of support as should be provided, taking into account the necessities of the applicant
and the resources or means of the adverse party, and the terms of payment or mode for providing
the support. If the application is denied, the principal case shall be tried and decided as early as
possible.

Under this provision, a court may temporarily grant support pendente lite prior to the rendition of
judgment or final order. Because of its provisional nature, a court does not need to delve fully
into the merits of the case before it can settle an application for this relief. All that a court is
tasked to do is determine the kind and amount of evidence which may suffice to enable it to
justly resolve the application. It is enough that the facts be established by affidavits or other
documentary evidence appearing in the record.32lavvphi1.net

After the hearings conducted on this matter as well as the evidence presented, we find that
petitioner was able to establish, by prima facie proof, the filiation of her twin daughters to private
respondents and the twins entitlement to support pendente lite. In the words of the trial court

By and large, the status of the twins as children of Federico cannot be denied. They had
maintained constant communication with their grandfather Francisco. As a matter of fact,
respondent Francisco admitted having wrote several letters to Rica and Rina (Exhs. A, B, C, D,
E, F, G, G-1 to G-30). In the said letters, particularly at the bottom thereof, respondent Francisco
wrote the names of Rica and Rina Delgado. He therefore was very well aware that they bear the
surname Delgado. Likewise, he referred to himself in his letters as either "Lolo Paco" or "Daddy
Paco." In his letter of October 13, 1989 (Exh. G-21), he said "as the grandfather, am extending a
financial help of US$1,000.00." On top of this, respondent Federico even gave the twins a treat
to Hongkong during their visit to the Philippines. Indeed, respondents, by their actuations, have
shown beyond doubt that the twins are the children of Federico.33

Having addressed the issue of the propriety of the trial courts grant of support pendente lite in
favor of Rica and Rina, the next question is who should be made liable for said award.

The pertinent provision of the Family Code on this subject states:

ART. 199. Whenever two or more persons are obliged to give support, the liability shall devolve
upon the following persons in the order herein provided:

(1) The spouse;

(2) The descendants in the nearest degree;

(3) The ascendants in the nearest degree; and

(4) The brothers and sisters.

An eminent author on the subject explains that the obligation to give support rests principally on
those more closely related to the recipient. However, the more remote relatives may be held to
shoulder the responsibility should the claimant prove that those who are called upon to provide
support do not have the means to do so.34

In this case, both the trial court and the Court of Appeals held respondent Federico liable to
provide monthly support pendente lite in the total amount of P10,000.00 by taking into
consideration his supposed income of P30,000.00 to P40,000.00 per month. We are, however,
unconvinced as to the veracity of this ground relied upon by the trial court and the Court of
Appeals.

It is a basic procedural edict that questions of fact cannot be the proper subject of a petition for
review under Rule 45 of the 1997 Rules of Civil Procedure. The rule finds a more stringent
application where the Court of Appeals upholds the findings of fact of the trial court; in such a
situation, this Court, as the final arbiter, is generally bound to adopt the facts as determined by
the appellate and the lower courts. This rule, however, is not ironclad as it admits of the
following recognized exceptions: "(1) when the findings are grounded entirely on speculation,
surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or
impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a
misapprehension of facts; (5) when the findings of facts are conflicting; (6) when in making its
findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to
the admissions of both the appellant and the appellee; (7) when the findings are contrary to that
of the trial court; (8) when the findings are conclusions without citation of specific evidence on
which they are based; (9) when the facts set forth in the petition as well as in the petitioners
main and reply briefs are not disputed by the respondent; (10) when the findings of fact are
premised on the supposed absence of evidence and contradicted by the evidence on record; and
(11) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the
parties, which, if properly considered, would justify a different conclusion."35 The case at bar
falls within the seventh and eleventh exceptions.

The trial court gave full credence to respondent Federicos allegation in his Answer36 and his
testimony37 as to the amount of his income. We have, however, reviewed the records of this case
and found them bereft of evidence to support his assertions regarding his employment and his
earning. Notably, he was even required by petitioners counsel to present to the court his income
tax return and yet the records of this case do not bear a copy of said document.38 This, to our
mind, severely undermines the truthfulness of respondent Federicos assertion with respect to his
financial status and capacity to provide support to Rica and Rina.

In addition, respondent Francisco himself stated in the witness stand that as far as he knew, his
son, respondent Federico did not own anything

"Atty. Lopez:

I have here another letter under the letter head of Mr. & Mrs. Dany Mangonon, dated October 19,
1991 addressed to Mr. Francisco Delgado signed by "sincerely, Danny Mangonon, can you
remember."

xxxx

WITNESS:

A: I do remember this letter because it really irritated me so much that I threw it away in a waste
basket. It is a very demanding letter, that is what I do not like at all.

ATTY. LOPEZ:

Q: It is stated in this letter that "I am making this request to you and not to your son, Rico, for
reasons we both are aware of." Do you know what reason that is?

A: Yes. The reason is that my son do not have fix employment and do not have fix salary and
income and they want to depend on the lolo.

x x x xlavvphi1.net

Q: Would you have any knowledge if Federico owns a house and lot?

A: Not that I know. I do not think he has anything.

Q: How about a car?

A: Well, his car is owned by my company.39

Respondent Federico himself admitted in court that he had no property of his own, thus:

Q: You also mentioned that you are staying at Mayflower Building and you further earlier
testified that this building belongs to Citadel Corporation. Do you confirm that?

A: Yes, sir.

Q: What car are you driving, Mr. Witness?

A: I am driving a lancer, sir.

Q: What car, that registered in the name of the corporation?

A: In the corporation, sir.

Q: What corporation is that?

A: Citadel Commercial, Inc., sir.

Q: What properties, if any, are registered in your name, do you have any properties, Mr. Witness?

A: None, sir."40 (Emphasis supplied.)

Meanwhile, respondent Francisco asserts that petitioner possessed the capacity to give support to
her twin daughters as she has gainful employment in the USA. He even went as far as to state
that petitioners income abroad, when converted to Philippine peso, was much higher than that
received by a trial court judge here in the Philippines. In addition, he claims that as she qualified
for the federal parent loan program, she could very well support the college studies of her
daughters.

We are unconvinced. Respondent Franciscos assertion that petitioner had the means to support
her daughters education is belied by the fact that petitioner was even forced by her financial
status in the USA to secure the loan from the federal government. If petitioner were really
making enough money abroad, she certainly would not have felt the need to apply for said loan.
The fact that petitioner was compelled to take out a loan is enough indication that she did not
have enough money to enable her to send her daughters to college by herself. Moreover, even
Rica and Rina themselves were forced by the circumstances they found themselves in to secure
loans under their names so as not to delay their entrance to college.

There being prima facie evidence showing that petitioner and respondent Federico are the
parents of Rica and Rina, petitioner and respondent Federico are primarily charged to support
their childrens college education. In view however of their incapacities, the obligation to furnish
said support should be borne by respondent Francisco. Under Article 199 of the Family Code,
respondent Francisco, as the next immediate relative of Rica and Rina, is tasked to give support
to his granddaughters in default of their parents. It bears stressing that respondent Francisco is
the majority stockholder and Chairman of the Board of Directors of Citadel Commercial,
Incorporated, which owns and manages twelve gasoline stations, substantial real estate, and is
engaged in shipping, brokerage and freight forwarding. He is also the majority stockholder and
Chairman of the Board of Directors of Citadel Shipping which does business with Hyundai of
Korea. Apart from these, he also owns the Citadel Corporation which, in turn, owns real
properties in different parts of the country. He is likewise the Chairman of the Board of Directors
of Isla Communication Co. and he owns shares of stocks of Citadel Holdings. In addition, he
owns real properties here and abroad.41 It having been established that respondent Francisco has
the financial means to support his granddaughters education, he, in lieu of petitioner and
respondent Federico, should be held liable for support pendente lite.
Anent respondent Francisco and Federicos claim that they have the option under the law as to
how they could perform their obligation to support Rica and Rina, respondent Francisco insists
that Rica and Rina should move here to the Philippines to study in any of the local universities.
After all, the quality of education here, according to him, is at par with that offered in the USA.
The applicable provision of the Family Code on this subject provides:

Art. 204. The person obliged to give support shall have the option to fulfill the obligation either
by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person
who has a right to receive support. The latter alternative cannot be availed of in case there is a
moral or legal obstacle thereto.

Under the abovecited provision, the obligor is given the choice as to how he could dispense his
obligation to give support. Thus, he may give the determined amount of support to the claimant
or he may allow the latter to stay in the family dwelling. The second option cannot be availed of
in case there are circumstances, legal or moral, which should be considered.

In this case, this Court believes that respondent Francisco could not avail himself of the second
option. From the records, we gleaned that prior to the commencement of this action, the
relationship between respondent Francisco, on one hand, and petitioner and her twin daughters,
on the other, was indeed quite pleasant. The correspondences exchanged among them expressed
profound feelings of thoughtfulness and concern for one anothers well-being. The photographs
presented by petitioner as part of her exhibits presented a seemingly typical family celebrating
kinship. All of these, however, are now things of the past. With the filing of this case, and the
allegations hurled at one another by the parties, the relationships among the parties had certainly
been affected. Particularly difficult for Rica and Rina must be the fact that those who they had
considered and claimed as family denied having any familial relationship with them. Given all
these, we could not see Rica and Rina moving back here in the Philippines in the company of
those who have disowned them.

Finally, as to the amount of support pendente lite, we take our bearings from the provision of the
law mandating the amount of support to be proportionate to the resources or means of the giver
and to the necessities of the recipient.42 Guided by this principle, we hold respondent Francisco
liable for half of the amount of school expenses incurred by Rica and Rina as support pendente
lite. As established by petitioner, respondent Francisco has the financial resources to pay this
amount given his various business endeavors.

Considering, however, that the twin sisters may have already been done with their education by
the time of the promulgation of this decision, we deem it proper to award support pendente lite in
arrears43 to be computed from the time they entered college until they had finished their
respective studies.

The issue of the applicability of Article 15 of the Civil Code on petitioner and her twin daughters
raised by respondent Francisco is best left for the resolution of the trial court. After all, in case it
would be resolved that Rica and Rina are not entitled to support pendente lite, the court shall
then order the return of the amounts already paid with legal interest from the dates of actual
payment.44
WHEREFORE, premises considered, this Petition is PARTIALLY GRANTED. The Decision of
the Court of Appeals dated 20 March 1996 and Resolution dated 16 May 1996 affirming the
Order dated 12 September 1995 of the Regional Trial Court, Branch 149, Makati, fixing the
amount of support pendente lite to P5,000.00 for Rebecca Angela and Regina Isabel, are hereby
MODIFIED in that respondent Francisco Delgado is hereby held liable for support pendente lite
in the amount to be determined by the trial court pursuant to this Decision. Let the records of this
case be remanded to the trial court for the determination of the proper amount of support
pendente lite for Rebecca Angela and Regina Isabel as well as the arrearages due them in
accordance with this Decision within ten (10) days from receipt hereof. Concomitantly, the trial
court is directed to proceed with the trial of the main case and the immediate resolution of the
same with deliberate dispatch. The RTC Judge, Branch 149, Makati, is further directed to submit
a report of his compliance with the directive regarding the support pendente lite within ten (10)
days from compliance thereof.

SO ORDERED.

SECOND DIVISION

G.R. No. 111180 November 16, 1995

DAISIE T. DAVID, petitioner,

vs.
COURT OF APPEALS, RAMON R. VILLAR, respondents.

MENDOZA, J.:

Petitioner Daisie T. David worked as secretary of private respondent Ramon R. Villar, a

businessman in Angeles City. Private respondent is a married man and the father of four children,
all grown-up. After a while, the relationship between petitioner and private respondent developed
into an intimate one, as a result of which a son, Christopher J., was born on March 9, 1985 to
them. Christopher J. was followed by two more children, both girls, namely Christine, born on
June 9, 1986, and Cathy Mae on April 24, 1988.

The relationship became known to private respondent's wife when Daisie took Christopher J, to
Villar's house at Villa Teresa in Angeles City sometime in 1986 and introduced him to Villar's
legal wife.

After this, the children of Daisie were freely brought by Villar to his house as they were
eventually accepted by his legal family.
In the summer of 1991, Villar asked Daisie to allow Christopher J., then six years of age, to go
with his family to Boracay. Daisie agreed, but after the trip, Villar refused to give back the child.
Villar said he had enrolled Christopher J. at the Holy Family Academy for the next school year.

On July 30, 1991, Daisie filed a petition for habeas corpus on behalf of Christopher J.

After hearing, the Regional Trial Court, Branch 58 at Angeles City, rendered a decision, the
dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered in favor of the

petitioner and against the respondent:

1. the rightful custody of the minor Christopher J. T. David is hereby given to the
natural mother, the herein petitioner Daisie T. David;

2. respondent is hereby ordered to give a temporary support of P3,000.00 a month

to the subject minor Christopher J. T. David, Christine David and Cathy Mae
David to take effect upon the finality of this decision; and

3. to pay the costs of this suit.

SO ORDERED.

On appeal, the Court of Appeals reversed, holding:

We agree with the respondent-appellant's view that this is not proper in a habeas
corpus case.

Law and jurisprudence wherein the question of custody of a minor child may be
decided in a habeas corpus case contemplate a situation where the parents are
married to each other but are separated. This is so because under the Family Code,
the father and mother have joint parental authority over their legitimate children
and in case of separation of the parents there is need to determine rightful custody
of their children. The same does not hold true in an adulterous relationship, as in
the case at bar, the child born out of such a relationship is under the parental
authority of the mother by express provision of the law. Hence, the question of
custody and support should be brought in a case singularly filed for the purpose.
In point of fact, this is more advisable in the case at bar because the trial court did
not acquire jurisdiction over the other minor children of the petitioner-appellee
and respondent-appellant and, therefore, cannot properly provide for their support.

Admittedly, respondent-appellant is financially well-off, he being a very rich

businessman; whereas, petitioner-appellee depends upon her sisters and parents
for support. In fact, he financially supported petitioner-appellee and her three
minor children. It is, therefore, for the best interest of Christopher J that he should
 temporarily remain under the custody of respondent-appellant until the issue on
custody and support shall have been determined in a proper case.

WHEREFORE, the decision appealed from is hereby SET ASIDE, and a NEW
ONE ENTERED dismissing the petition for habeas corpus in Special Proceeding
No. 4489.

Daisie in turn filed this petition for review of the appellate court's decision.

Rule 102, 1 of the Rules of Court provides that "the writ of habeas corpus shall extend to all
cases of illegal confinement or detention by which any person is deprived of his liberty, or by
which the rightful custody of any person is withheld from the person entitled thereto."

It is indeed true, as the Court of Appeals observed, that the determination of the right to the
custody of minor children is relevant in cases where the parents, who are married to each other,
are for some reason separated from each other. It does not follow, however, that it cannot arise in
any other situation. For example, in the case of Salvaa v. Gaela, 1 it was held that the writ of
habeas corpus is the proper remedy to enable parents to regain the custody of a minor daughter
even though the latter be in the custody of a third person of her free will because the parents
were compelling her to marry a man against her will.

In the case at bar, Christopher J. is an illegitimate child since at the time of his conception, his
father, private respondent Ramon R. Villar, was married to another woman other than the child's
mother. As such, pursuant to Art. 176 of the Family Code, Christopher J. is under the parental
authority of his mother, the herein petitioner, who, as a consequence of such authority, is entitled
to have custody of him. 2 Since, admittedly, petitioner has been deprived of her rightful custody
of her child by private respondent, she is entitled to issuance of the writ of habeas corpus.

Indeed, Rule 1021 1 makes no distinction between the case of a mother who is separated from
her husband and is entitled to the custody of her child and that of a mother of an illegitimate
child who, by law, is vested with sole parental authority, but is deprived of her rightful custody of
her child.

The fact that private respondent has recognized the minor child may be a ground for ordering
him to give support to the latter, but not for giving him custody of the child. Under Art. 213 of
the Family Code, "no child under seven years of age shall be separated from the mother unless
the court finds compelling reasons to order otherwise." 3

Nor is the fact that private respondent is well-off a reason for depriving petitioner of the custody
of her children, especially considering that she has been able to rear and support them on her
own since they were born. Petitioner is a market vendor earning from P2,000 to P3,000 per
month in 1993 when the RTC decision was rendered. She augments her income by working as
secretary at the Computer System Specialist, Inc. earning a monthly income of P4,500.00. She
has an arrangement with her employer so that she can personally attend to her children. She
works up to 8:00 o'clock in the evening to make up for time lost during the day. That she receives
help from her parents and sister for the support of the three children is not a point against her.
Cooperation, compassion, love and concern for every member of the family are characteristics of
the close family ties that bind the Filipino family and have made it what it is.

Daisie and her children may not be enjoying a life of affluence that private respondent promises
if the child lives with him. It is enough, however, that petitioner is earning a decent living and is
able to support her children according to her means.

The Regional Trial Court ordered private respondent to give temporary support to petitioner in
the amount of P3,000.00 a month, pending the filing of an action for support, after finding that
private respondent did not give any support to his three children by Daisie, except the meager
amount of P500.00 a week which he stopped giving them on June 23, 1992. He is a rich man
who professes love for his children. In fact he filed a motion for the execution of the decision of
the Court of Appeals, alleging that he had observed his son "to be physically weak and pale
because of malnutrition and deprivation of the luxury and amenities he was accustomed to when
in the former custody of the respondent." He prayed that he be given the custody of the child so
that he can provide him with the "proper care and education."

Although the question of support is proper in a proceeding for that purpose, the grant of support
in this case is justified by the fact that private respondent has expressed willingness to support
the minor child. The order for payment of allowance need not be conditioned on the grant to him
of custody of the child. Under Art. 204 of the Family Code, a person obliged to give support can
fulfill his obligation either by paying the allowance fixed by the court or by receiving and
maintaining in the family dwelling the person who is entitled to support unless, in the latter case,
there is "a moral or legal obstacle thereto."

In the case at bar, as has already been pointed out, Christopher J., being less than seven years of
age at least at the time the case was decided by the RTC, cannot be taken from the mother's
custody. Even now that the child is over seven years of age, the mother's custody over him will
have to be upheld because the child categorically expressed preference to live with his mother.
Under Art. 213 of the Family Code, courts must respect the "choice of the child over seven years
of age, unless the parent chosen is unfit" and here it has not been shown that the mother is in any
way unfit to have custody of her child. Indeed, if private respondent loves his child, he should
not condition the grant of support for him on the award of his custody to him (private
respondent).

WHEREFORE, the decision of the Court of Appeals is REVERSED and private respondent is
ORDERED to deliver the minor Christopher J. T. David to the custody of his mother, the herein
petitioner, and to give him temporary support in the amount of P3,000.00, pending the fixing of
the amount of support in an appropriate action.

SO ORDERED.

[G.R. No. 140817. December 7, 2001]

SABRINA ARTADI BONDAGJY, petitioner, vs. FOUZI ALI BONDAGJY, JUDGE
BENSAUDI I. ARABANI, SR., in his capacity as presiding judge of the 3rd Sharia District
Court, Sharia Judicial District, Zamboanga City, respondents.

DECISION

PARDO, J.:

Is a wife, a Christian who converted to Islam before her marriage to a Muslim and converted
back to Catholicism upon their separation, still bound by the moral laws of Islam in the
determination of her fitness to be the custodian of her children?

We apply civil law in the best interest of the children.

The Facts

Respondent Fouzi (then 31 years of age) and Sabrina (then 20 years of age) were married on
February 3, 1988, at the Manila Hotel, Ermita, Manila under Islamic rites. On October 21, 1987,
or four (4) months before her marriage, Sabrina became a Muslim by conversion. However, the
conversion was not registered with the Code of Muslim Personal Laws of the Philippines.

Out of their union, they begot two (2) children, namely, Abdulaziz, born on June 13, 1989, and
Amouaje, born on September 29, 1990. The children were born in Jeddah, Saudi Arabia.

At the time of their marriage, unknown to petitioner, respondent was still married to a Saudi
Arabian woman whom he later divorced.

After their marriage, the couple moved in with respondents family in Makati City. In 1990, the
parties migrated and settled in Jeddah, Saudi Arabia where they lived for more than two years.

Sometime in December 1995, the children lived in the house of Sabrinas mother in 145 Tanguile
Street, Ayala Alabang. Fouzi alleged that he could not see his children until he got an order from
the court. Even with a court order, he could only see his children in school at De La Salle-Zobel,
Alabang, Muntinlupa City.

On December 15, 1996, Sabrina had the children baptized as Christians and their names changed
from Abdulaziz Bondagjy to Azziz Santiago Artadi and from Amouaje Bondagjy to Amouage
Selina Artadi.

Respondent alleged that on various occasions Sabrina was seen with different men at odd hours
in Manila, and that she would wear short skirts, sleeveless blouses, and bathing suits. Such
clothing are detestable under Islamic law on customs.

Fouzi claimed that Sabrina let their children sweep their neighbors house for a fee of P40.00
after the children come home from school. Whenever Fouzi sees them in school, the children
would be happy to see him but they were afraid to ride in his car. Instead, they would ride the
jeepney in going home from school.

The Case

On March 11, 1996, respondent Fouzy Ali Bondagjy filed with the Sharia District Court,
Marawi City, an action to obtain custody of his two minor children, Abdulaziz, 10 and Amouaje,
9.

On June 6, 1996, petitioner filed her answer with motion to dismiss on the ground of lack of
jurisdiction over the persons of the parties since both parties were residents of Manila and for
lack of cause of action. Petitioner likewise moved to transfer the venue to Zamboanga, which
was more accessible by plane.

On June 18, 1996, the Sharia District Court granted petitioners motion to transfer the venue to
Zamboanga.

On June 27, 1996, respondent filed a reply and motion for a temporary restraining order against
petitioner. He moved that petitioner desist from preventing him from exercising parental
authority over his minor children.

On July 12, 1996, the court granted the motion and issued a writ of preliminary injunction.

On August 12, 1996, the court ordered the parties to submit their memoranda on the issue of
jurisdiction.

On October 30, 1996, the court granted petitioners motion to withdraw motion to dismiss on the
issue of jurisdiction and set the proceedings for pre-trial conference on November 14, 1996.

On November 14, 1996, respondent filed a motion to drop Joyce Artadi as defendant in the case
and the trial court issued an order:

During the pre-trial conference held this morning, the parties made their respective offer and
counter proposals for amicable settlement. The plaintiff proposed (1) solidarity of the family,
and (2) alternate custody. The defendant advanced the proposal of reasonable visitation of the
father at their residence, for which the court will possibly fix the period or time and schedule of
visitations.

With these proposals, both parties agreed to continue the pre-trial conference on December 9,
1996.

WHEREFORE, let the pre-trial conference be again held on December 9, 1996, at 9:00 oclock
in the morning.
Meantime, petitioner filed with the Regional Trial Court, Branch 256, Muntinlupa City an action
for nullity of marriage, custody and support, ordered the parties to maintain status quo until
further orders from said court.

On March 2, 1999, petitioner filed another motion to dismiss on the ground of lack of
jurisdiction over the subject matter of the case since P.D. No. 1083 is applicable only to
Muslims. On March 3, 1999, Fouzi filed an opposition to the motion to dismiss and argued that
at the inception of the case, both parties were Muslims, Fouzi by birth and Sabrina by
conversion.

On March 29, 1999, the court denied the motion to dismiss since P.D. No. 1083 had jurisdiction
over all cases of Muslims involving custody.

On April 23, 1999, Sabrina filed a motion to reconsider the order of March 29, 1999 denying the
motion to dismiss.

On June 22, 1999, the court denied petitioners motion for reconsideration. Thus-

WHEREFORE, in view of the foregoing reasons, the motion for reconsideration of the
defendant-movant is hereby ordered DENIED; Defendant is further ordered to comply with the
order of this Court dated July 12, 1996, to allow plaintiff to exercise his right of parental
authority over their minor children with that of the defendant in accordance with article 71, of
P.D. 1083, the Code of Muslim Personal Laws.

Let the continuation of this case be set on July 15, 1999 at 8:30 in the morning.

On July 15, 1999, the trial court decided to move forward to the next stage of the case and
allowed respondent Fouzi to present evidence ex-parte.

On August 18, 1999, the court issued an order giving respondent fifteen (15) days to submit his
formal offer of evidence and fifteen (15) days from receipt of transcript of stenographic notes to
submit memorandum.

The Sharia District Courts Decision

On November 16, 1999, the Sharia Court rendered a decision, the dispositive portion of which
reads:

WHEREFORE, foregoing considered, judgment is hereby rendered:

(a) Awarding the custody of the minors Abdulaziz Artadi Bondagjy and Amouaje Artadi
Bondagjy in favor of their natural father, petitioner Fouzi Ali Bondagjy; and for this purpose
ordering the respondent Sabrina Artadi Bodagjy or any person having the care of said minors in
her stead or behalf, to turn over, relinguish and surrender the custody of said minors to their
natural father, the petitioner in this case Fouzi Ali Bondagjy;
(b) Ordering the petitioner Fouzi Ali Bondagjy to ensure that the said minors are provided with
reasonable support according to his means and in keeping with the standard of his family, and, a
suitable home conducive to their physical,

(c) mental and moral development; and, with his knowledge and under reasonable circumstances
allow the respondent and natural mother of the said minors Mrs. Sabrina Artadi Bondagjy to visit
her minor children Abdulaziz Artadi Bondagjy and Amouje Artadi Bondagjy.

Hence, this petition.

The Courts Ruling

The Sharia District Court held that P.D. No. 1083 on Custody and Guardianship does not apply
to this case because the spouses were not yet divorced.

However, the Sharia District Court found petitioner unworthy to care for her children. Thus -

A married woman, and a mother to growing children, should live a life that the community in
which she lives considers morally upright, and in a manner that her growing minor children will
not be socially and morally affected and prejudiced. It is sad to note that respondent has failed to
observe that which is expected of a married woman and a mother by the society in which she
lives. xxx The evidence of this case shows the extent of the moral depravity of the respondent,
and the kind of concern for the welfare of her minor children which on the basis thereof this
Court finds respondent unfit with the custody of her minor children.

xxx Under the general principles of Muslim law, the Muslim mother may be legally disentitled
to the custody of her minor children by reason of wickedness when such wickedness is
injurious to the mind of the child, such as when she engages in zina (illicit sexual relation); or
when she is unworthy as a mother; and, a woman is not worthy to be trusted with the custody of
the child who is continually going out and leaving the child hungry. (A. Baillie, Muhammadan
Law, p. 435; citing Dar-ul-Muktar, p. 280).

On the other hand, the Sharia Court found that respondent Fouzi was capable both personally
and financially to look after the best interest of his minor children.

When he was asked during the direct examination the question that, if ever this Honorable
Court will grant you custody of your children will you be able to house and give support to your
children? He answered, Of course, even up to now I am giving support to my children; And my
comment is that the father should give everything the needs of the family and now whatever the
children needs even in school, considering the past, I have to love them, I have to care for my
children. In school, even when they see something they love and like, I buy it for them. Or
sometime (sic) I send my staff and bring something for them in their house. It is very hard, in
school in front of other parents my son would still climb on my shoulder. I want to see them
happy. I have pictures of my children with me, taken only last week.
As a rule, factual findings of the lower courts are final and binding upon the parties. The Court is
not expected or required to examine or contrast the oral and documentary evidence submitted by
the parties. However, although this Court is not a trier of facts, it has the authority to review or
reverse the factual findings of the lower courts if we find that these do not conform to the
evidence on record.

In Reyes vs. Court of Appeals, the Court held that the exceptions to the rule that factual findings
of the trial court are final and conclusive and may not be reviewed on appeal are the following:
(1) when the inference made is manifestly mistaken, absurd or impossible; (2) when there is a
grave abuse of discretion; (3) when the finding is grounded entirely on speculations, surmises or
conjectures; (4) when the judgment of the Court of Appeals is based on misapprehension of
facts; (5) when the findings of fact are conflicting; (6) when the Court of Appeals, in making its
findings, went beyond the issues of the case and the same is contrary to the admissions of both
appellant and appellee; (7) when the findings of the Court of Appeals are contrary to those of the
trial court; (8) when the findings of fact are conclusions without citation of specific evidence on
which they are based; (9) when the Court of Appeals manifestly overlooked certain relevant facts
not disputed by the parties and which, if properly considered, would justify a different
conclusion, and (10) when the findings of fact of the Court of Appeals are premised on the
absence of evidence and are contradicted by the evidence on record.

Fitness as a Mother

The burden is upon respondent to prove that petitioner is not worthy to have custody of her
children. We find that the evidence presented by the respondent was not sufficient to establish
her unfitness according to Muslim law or the Family Code.

In Pilipinas Shell Corp. vs. Court of Appeals (April 20, 2001, G.R. No. 114923), we said that in
the hierarchy of evidentiary values, proof beyond reasonable doubt is at the highest level,
followed by clear and convincing evidence, preponderance of evidence and substantial evidence,
in that order.

The standard in the determination of sufficiency of proof, however, is not restricted to Muslim
laws. The Family Code shall be taken into consideration in deciding whether a non-Muslim
woman is incompetent. What determines her capacity is the standard laid down by the Family
Code now that she is not a Muslim.

Indeed, what determines the fitness of any parent is the ability to see to the physical, educational,
social and moral welfare of the children, and the ability to give them a healthy environment as
well as physical and financial support taking into consideration the respective resources and
social and moral situations of the parents.

The record shows that petitioner is equally financially capable of providing for all the needs of
her children. The children went to school at De La Salle Zobel School, Muntinlupa City with
their tuition paid by petitioner according to the schools certification.

Parental Authority and Custody

The welfare of the minors is the controlling consideration on the issue.

In ascertaining the welfare and best interest of the children, courts are mandated by the Family
Code to take into account all relevant considerations.

Article 211 of the Family Code provides that the father and mother shall jointly exercise parental
authority over the persons of their common children.

Similarly, P.D. No. 1083 is clear that where the parents are not divorced or legally separated, the
father and mother shall jointly exercise just and reasonable parental authority and fulfill their
responsibility over their legitimate children.

In Sagala-Eslao v. Court of Appeals, we stated:

xxx [Parental authority] is a mass of rights and obligations which the law grants to parents for
the purpose of the childrens physical preservation and development, as well as the cultivation of
their intellect and the education of their heart and senses. As regards parental authority, there is
no power, but a task; no complex of rights, but a sum of duties; no sovereignty but a sacred trust
for the welfare of the minor.

xxx

The father and mother, being the natural guardians of unemancipated children, are dutybound
and entitled to keep them in their custody and company.

We do not doubt the capacity and love of both parties for their children, such that they both want
to have them in their custody.

Either parent may lose parental authority over the child only for a valid reason. In cases where
both parties cannot have custody because of their voluntary separation, we take into
consideration the circumstances that would lead us to believe which parent can better take care
of the children. Although we see the need for the children to have both a mother and a father, we
believe that petitioner has more capacity and time to see to the childrens needs. Respondent is a
businessman whose work requires that he go abroad or be in different places most of the time.
Under P.D. No. 603, the custody of the minor children, absent a compelling reason to the
contrary, is given to the mother.

However, the award of custody to the wife does not deprive the husband of parental authority. In
the case of Silva v. Court of Appeals, we said that:

Parents have the natural right, as well as the moral and legal duty, to care for their children, see
to their upbringing and safeguard their best interest and welfare. This authority and
responsibility may not be unduly denied the parents; neither may it be renounced by them. Even
when the parents are estranged and their affection for each other is lost, the attachment and
feeling for their offsprings invariably remain unchanged. Neither the law nor the courts allow
this affinity to suffer absent, of course, any real, grave and imminent threat to the well-being of
the child.

Thus, we grant visitorial rights to respondent as his Constitutionally protected natural and
primary right.

The Fallo

WHEREFORE, the petition is hereby GRANTED. The decision in Spl. Proc. No. 13-96 is
hereby SET ASIDE. Petitioner SABRINA ARTADI BONDAGJY shall have custody over minors
Abdulaziz, and Amouaje Bondagjy, until the children reach majority age. Both spouses shall
have joint responsibility over all expenses of rearing the children.

The father, FOUZI ALI BONDAGJY, shall have visitorial rights at least once a week and may
take the children out only with the written consent of the mother.

No costs.

SO ORDERED.

SECOND DIVISION

G.R. No. 118387 October 11, 2001

MARCELO LEE, ALBINA LEE-YOUNG, MARIANO LEE, PABLO LEE, HELEN LEE,
CATALINO K. LEE, EUSEBIO LEE, EMMA LEE, and TIU CHUAN, petitioners,
vs.
COURT OF APPEALS and HON. LORENZO B. VENERACION and HON. JAIME T.
HAMOY, in their capacities as Presiding Judge of Branch 47, Regional Trial Court of
Manila and Branch 130, Regional Trial Court of Kalookan City, respectively and RITA K.
LEE, LEONCIO LEE TEK SHENG in their personal capacities and ROSA K. LEE-
VANDERLEK, MELODY K. LEE-CHIN, LUCIA K. LEE TEK SHENG, JULIAN K. LEE,
HENRY K. LEE, MARTIN K. LEE, VICTORIANO K. LEE, NATIVIDAD K. LEE-
MIGUEL, and THOMAS K. LEE, represented by RITA K. LEE, respondents.

DE LEON, JR., J.:

This Petition for Review on Certiorari, with Prayer for the Issuance of a Temporary Restraining
Order and/or Writ of Preliminary Injunction, seeks the reversal of the Decision1 of the Court of
Appeals dated October 28, 1994 in CA-G.R. SP NO. 317862 . The assailed decision of the Court
of Appeals upheld the Orders issued by respondents Judges Hon. Lorenzo B. Veneracion3 and
Hon. Jaime T. Hamoy4 taking cognizance of two (2) separate petitions filed by private
respondents before their respective salas for the cancellation and/or correction of entries in the
records of birth of petitioners pursuant to Rule 108 of the Revised Rules of Court.
This is a story of two (2) sets of children sired by one and the same man but begotten of two (2)
different mothers. One set, the private respondents herein, are the children of Lee Tek Sheng and
his lawful wife, Keh Shiok Cheng. The other set, the petitioners herein, are allegedly children of
Lee Tek Sheng and his concubine, Tiu Chuan.

Rita K. Lee, Leoncio Lee Tek Sheng, Rosa K. Lee-Vanderlek, Melody K. Lee-Chin, Lucia K.
Lee Tek Sheng-Ong, Julian K. Lee, Henry K. Lee, Martin K. Lee, Victoriano K. Lee, Natividad
K. Lee-Miguel and Thomas K. Lee (hereinafter referred to as private respondents) filed two (2)
separate petitions for the cancellation and/or correction of entries in the records of birth of
Marcelo Lee, Albina Lee-Young, Mariano Lee, Pablo Lee, Helen Lee, Catalino K. Lee, Eusebio
Lee, and Emma Lee (hereinafter referred to as petitioners). On December 2, 1992, the petition
against all petitioners, with the exception of Emma Lee, was filed before the Regional Trial
Court (RTC) of Manila and docketed as SP. PROC. NO. 92-636925 and later assigned to Branch
47 presided over by respondent Judge Lorenzo B. Veneracion. On February 3, 1993, a similar
petition against Emma Lee was filed before the RTC of Kalookan and docketed as SP. PROC.
NO. C-16746 and assigned to the sala of respondent Judge Jaime T. Hamoy of Branch 130.

Both petitions sought to cancel and/or correct the false and erroneous entries in all pertinent
records of birth of petitioners by deleting and/or canceling therein the name of "Keh Shiok
Cheng" as their mother, and by substituting the same with the name "Tiu Chuan", who is
allegedly the petitioners' true birth mother.

The private respondents alleged in their petitions before the trial courts that they are the
legitimate children of spouses Lee Tek Sheng and Keh Shiok Cheng who were legally married in
China sometime in 1931. Except for Rita K. Lee who was born and raised in China, private
respondents herein were all born and raised in the Philippines.

Sometime in October, 1948, Lee Tek Sheng, facilitated the arrival in the Philippines from China
of a young girl named Tiu Chuan. She was introduced by Lee Tek Sheng to his family as their
new housemaid but far from becoming their housemaid, Tiu Chuan immediately became Lee Tek
Sheng's mistress. As a result of their illicit relations, Tiu Chuan gave birth to petitioners.

Unknown to Keh Shiok Cheng and private respondents, every time Tiu Chuan gave birth to each
of the petitioners, their common father, Lee Tek Sheng, falsified the entries in the records of birth
of petitioners by making it appear that petitioners' mother was Keh Shiok Cheng.

Since the birth of petitioners, it was Tiu Chuan who gave maternal care and guidance to the
petitioners. They all lived in the same compound Keh Shiok Cheng and private respondents were
residing in. All was well, therefore, before private respondents' discovery of the dishonesty and
fraud perpetrated by their father, Lee Tek Sheng.

The tides turned after Keh Shiok Cheng's demise on May 9, 1989. Lee Tek Sheng insisted that
the names of all his children, including those of petitioners', be included in the obituary notice of
Keh Shiok Cheng's death that was to be published in the newspapers. It was this seemingly
irrational act that piqued private respondents' curiosity, if not suspicion.7
Acting on their suspicion, the private respondents requested the National Bureau of Investigation
(NBI) to conduct an investigation into the matter. After investigation and verification of all
pertinent records, the NBI prepared a report that pointed out, among others, the false entries in
the records of birth of petitioners, specifically the following.

1. As per Birth Certificate MARCELO LEE (Annex F-1), their father, LEE TEK SHENG
made it appear that he is the 12th child of Mrs. KEH SHIOK CHENG, but upon
investigation, it was found out that her Hospital Records, the mother who gave birth to
MARCELO LEE had given birth for the 1st time, as per diagnosis of the attending
physician, Dr. R. LIM, it was "GRAVIDA I, PARA I" which means "first pregnancy, first
live birth delivery" (refer to: MASTER PATIENT'S RECORDS SUMMARY Annex
I). Also, the age of the mother when she gave birth to MARCELO LEE as per record was
only 17 years old, when in fact and in truth, KEH SHIOK CHENG's age was then already
38 years old. The address used by their father in the Master Patient record was also the
same as the Birth Certificate of MARCELO LEE (2425 Rizal Avenue, Manila). The name
of MARCELO LEE was recorded under Hospital No. 221768, page 73.

2. As per Birth Certificate of ALBINA LEE (Annex F-2), it was made to appear that
ALBINA LEE was the third child which is without any rationality, because the 3rd child
of KEH SHIOK CHENG is MELODY LEE TEK SHENG (Annex E-2). Note also, that
the age of the mother as per Hospital Records jump (sic) from 17 to 22 years old, but the
only age gap of MARCELO LEE and ALBINA LEE is only 2 years.

3. As per Birth Certificate of MARIANO LEE (Annex F-3), it was made to appear that
MARIANO LEE was the 5th child, but the truth is, KEH SHIOK CHENG's 5th child is
LUCIA LEE TEK SHENG (Annex E-4). As per Hospital Record, the age of KEH
SHIOK CHENG was only 23 years old, while the actual age of KEH SHIOK CHENG,
was then already 40 years old.

4. As per Birth Certificate of PABLO LEE (Annex F-4), it was made to appear that
PABLO LEE was the 16th child of KEH SHIOK CHENG which is impossible to be true,
considering the fact that KEH SHIOK CHENG have stopped conceiving after her 11th
child. Also as per Hospital Record, the age of the mother was omitted in the records. If
PABLO LEE is the 16th child of KEH SHIOK CHENG, it would only mean that she
have (sic) given birth to her first born child at the age of 8 to 9 years, which is impossible
to be true.

Based on the birth record of MARIANO LEE in 1953, the recorded age of KEH SHIOK
CHENG was 23 years old. Two years after PABLO LEE was born in 1955, the difference
is only 2 years, so it is impossible for PABLO LEE to be the 16th child of KEH SHIOK
CHENG, as it will only mean that she have (sic) given birth at that impossible age.

5. As per Birth Certificate of HELEN LEE (Annex F-5), it was made to appear that she is
the 6th child of KEH SHIOK CHENG, but as per Birth Certificate of JULIAN LEE
(Annex E-5), he is the true 6th child of KEH SHIOK CHENG. Per Hospital Record, KEH
 SHIOK CHENG is only 28 years old, while KEH SHIOK CHENG'S true age at that time
was 45 years old.

6. EMMA LEE has no record in the hospital because, as per complainant's allegation, she
was born at their house, and was later admitted at Chinese General Hospital.

7. As per Birth Certificate of CATALINO LEE (Annex F-7), it was made to appear that
he is the 14th child of KEH SHIOK CHENG, and that the age of KEH SHIOK CHENG
a.k.a. Mrs. LEE TEK SHENG, jumped from 28 years old at the birth of HELEN LEE on
23 August 1957 to 38 years old at the birth of CATALINO LEE on 22 April 1959.

8. As per Birth Certificate of EUSEBIO LEE, the alleged last son of KEH SHIOK
CHENG, the age of the mother is 48 years old. However, as per Hospital Record, the age
of Mrs. LEE TEK SHENG, then was only 39 years old. Considering the fact, that at the
time of MARCELO's birth on 11 May 1950. KEH SHIOK CHENG's age is 38 years old
and at the time of EUSEBIO's birth, she is already 48 years old, it is already impossible
that she could have given birth to 8 children in a span of only 10 years at her age. As per
diagnosis, the alleged mother registered on EUSEBIO's birth indicate that she had
undergone CEASARIAN SECTION, which Dr. RITA K. LEE said is not true.

In view of the foregoing facts, the NBI concluded that:

10. In conclusion, as per Chinese General Hospital Patients Records, it is very

obvious that the mother of these 8 children is certainly not KEH SHIOK CHENG,
but a much younger woman, most probably TIU CHUAN. Upon further
evaluation and analysis by these Agents, LEE TEK SHENG, is in a quandary in
fixing the age of KEH SHIOK CHENG possibly to conform with his grand design
of making his 8 children as their own legitimate children, consequently elevating
the status of his 2nd family and secure their future. The doctor lamented that this
complaint would not have been necessary had not the father and his 2nd family
kept on insisting that the 8 children are the legitimate children of KEH SHIOK
CHENG.8

It was this report that prompted private respondents to file the petitions for cancellation and/or
correction of entries in petitioners' records of birth with the lower courts.

The petitioners filed a motion to dismiss both petitions SP. PROC. NO. 92-63692 and SP.
PROC. NO. C-1674 on the grounds that: (1) resort to Rule 108 is improper where the ultimate
objective is to assail the legitimacy and filiation of petitioners; (2) the petition, which is
essentially an action to impugn legitimacy was filed prematurely; and (3) the action to impugn
has already prescribed.9

On February 12, 1993, respondent Judge Veneracion denied the motion to dismiss SP. PROC.
NO. 92-63692 for failure of the herein petitioners (defendants in the lower court) to appear at the
hearing of the said motion.10 Then on February 17, 1993, Judge Veneracion issued an Order, the
pertinent portion of which, reads as follows:
 Finding the petition to be sufficient in form and substance, the same is hereby given due
course. Let this petition be set for hearing on March 29, 1993 at 8:30 in the morning
before this Court located at the 5th Floor of the City Hall of Manila.

Notice is hereby given that anyone who has any objection to the petition should file on or
before the date of hearing his opposition thereto with a statement of the grounds therefor.

Let a copy of this Order be published, at the expense of the petitioners, once a week for
three (3) consecutive weeks in a newspaper of general circulation in the Philippines.

Let copies of the verified petition with its annexes and of this Order be served upon the
Office of the Solicitor General, and the respondents, and be posted on the Bulletin Board
of this Court, also at the expense of the petitioners.

SO ORDERED.11

On the other hand, respondent Judge Hamoy issued an Order dated April 15, 1993 taking
cognizance of SP. PROC. No. C-1674, to wit:

It appearing from the documentary evidence presented and marked by the petitioners that
the Order of the Court setting the case for hearing was published in "Media Update" once
a week for three (3) consecutive weeks, that is on February 20, 27, and March 6, 1993 as
evidenced by the Affidavit of Publication and the clippings attached to the affidavit, and
by the copies of the "Media Update" published on the aforementioned dates; further, copy
of the order setting the case for hearing together with copy of the petition had been served
upon the Solicitor General, City Prosecutor of Kalookan City, Civil Registrar of
Kalookan City and the private respondents, the Court holds that the petitioners have
complied with the jurisdictional requirements for the Court to take cognizance of this
case.

xxx xxx xxx

SO ORDERED.12

Petitioners' attempts at seeking a reconsideration of the above-mentioned orders of Judge

Veneracion and Judge Hamoy failed, hence their recourse to the Court of Appeals via a Petition
for Certiorari and Prohibition with Application for the Issuance of a Temporary Restraining
Order and/or Writ of Preliminary Injunction. Petitioners averred that respondents judges had
acted with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the
assailed orders allowing the petitions for the cancellation and/or correction of entries in
petitioners' records of birth to prosper in the lower courts.

In their petition before the Court of Appeals, the petitioners raised the following arguments: (1)
Rule 108 is inappropriate for impugning the legitimacy and filiation of children; (2) Respondents
judges are sanctioning a collateral attack against the filiation and legitimacy of children; (3)
Respondents judges are allowing private respondents to impugn the legitimacy and filiation of
their siblings despite the fact that their undisputed common father is still alive; (4) Respondents
judges are entertaining petitions which are already time-barred; and (5) The petitions below are
part of a forum-shopping spree.13

Finding no merit in petitioners' arguments, the Court of Appeals dismissed their petition in a
Decision dated October 28, 1994.14 Petitioners' Motion for Reconsideration of the said decision
was also denied by the Court of Appeals in a Resolution dated December 19, 1994.15

Hence, this petition.

1. Petitioners contend that resort to Rule 108 of the Revised Rules of Court is improper since
private respondents seek to have the entry for the name of petitioners' mother changed from "Keh
Shiok Cheng" to "Tiu Chuan" who is a completely different person. What private respondents
therefore seek is not merely a correction in name but a declaration that petitioners were not born
of Lee Tek Sheng's legitimate wife, Keh Shiok Cheng, but of his mistress, Tiu Chuan, in effect a
"bastardization of petitioners."16 Petitioners thus label private respondents' suits before the lower
courts as a collateral attack against their legitimacy in the guise of a Rule 108 proceeding.

Debunking petitioners' above contention, the Court of Appeals observed:

xxx xxx xxx

As correctly pointed out by the private respondents in their comment . . . , the

proceedings are simply aimed at establishing a particular fact, status and/or right. Stated
differently, the thrust of said proceedings was to establish the factual truth regarding the
occurrence of certain events which created or affected the status of persons and/or
otherwise deprived said persons of rights.17

xxx xxx xxx

It is precisely the province of a special proceeding such as the one outlined under Rule 108 of the
Revised Rules of Court to establish the status or right of a party, or a particular fact.18 The
petitions filed by private respondents for the correction of entries in the petitioners' records of
birth were intended to establish that for physical and/or biological reasons it was impossible for
Keh Shiok Cheng to have conceived and given birth to the petitioners as shown in their birth
records. Contrary to petitioners' contention that the petitions before the lower courts were
actually actions to impugn legitimacy, the prayer therein is not to declare that petitioners are
illegitimate children of Keh Shiok Cheng, but to establish that the former are not the latter's
children. There is nothing to impugn as there is no blood relation at all between Keh Shiok
Cheng and petitioners.19

Further sanctioning private respondents' resort to Rule 108, the Court of Appeals adverted to our
ruling in the leading case of Republic vs. Valencia20 where we affirmed the decision of Branch XI
of the then Court of First Instance (CFI) of Cebu City ordering the correction in the nationality
and civil status of petitioner's minor children as stated in their records of birth from "Chinese" to
"Filipino", and "legitimate" to "illegitimate", respectively. Although recognizing that the changes
or corrections sought to be effected are not mere clerical errors of a harmless or innocuous
nature, this Court, sitting en banc, held therein that even substantial errors in a civil register may
be corrected and the true facts established provided the parties aggrieved by the error avail
themselves of the appropriate adversary proceeding.21 In the said case, we also laid down the
rule that a proceeding for correction and/or cancellation of entries in the civil register under Rule
108 ceases to be summary in nature and takes on the characteristics of an appropriate adversary
proceeding when all the procedural requirements under Rule 108 are complied with. Thus we
held:

"Provided the trial court has conducted proceedings where all relevant facts have been
fully and properly developed, where opposing counsel have been given opportunity to
demolish the opposite party's case, and where the evidence has been thoroughly weighed
and considered, the suit or proceeding is 'appropriate.'

The pertinent sections of rule 108 provide:

'SECTION 3. Parties. When cancellation or correction of an entry in the civil

register is sought, the civil registrar and all persons who have or claim any interest
which would be affected thereby shall be made parties to the proceeding.'

'SECTION 4. Notice and publication. Upon the filing of the petition, the court
shall, by an order, fix the time and place for the hearing of the same, and cause
reasonable notice thereof to be given to the persons named in the petition. The
court shall also cause the order to be published once in a week for three (3)
consecutive weeks in a newspaper of general circulation in the province.'

'SECTION 5. Opposition. The civil registrar and any person having or

claiming any interest under the entry whose cancellation or correction is sought
may, within fifteen (15) days from notice of the petition, or from the last date of
publication of such notice, file his opposition thereto.'

"Thus, the persons who must be made parties to a proceeding concerning the cancellation
or correction of an entry in the civil register are (1) the civil registrar, and (2) all
persons who have or claim any interest which would be affected thereby. Upon the filing
of the petition, it becomes the duty of the court to (1) issue an order fixing the time
and place for the hearing of the petition, and (2) cause the order for hearing to be
published once a week for three (3) consecutive weeks in a newspaper of general
circulation in the province. The following are likewise entitled to oppose the petition:
(1) the civil registrar, and (2) any person having or claiming any interest under the entry
whose cancellation or correction is sought.

"If all these procedural requirements have been followed, a petition for correction and/or
cancellation of entries in the record of birth even if filed and conducted under Rule 108
of the Revised Rules of Court can no longer be described as "summary". There can be no
doubt that when an opposition to the petition is filed either by the Civil Registrar or any
person having or claiming any interest in the entries sought to be cancelled and/or
 corrected and the opposition is actively prosecuted, the proceedings thereon become
adversary proceedings."22 (Emphasis supplied.)

To the mind of the Court of Appeals, the proceedings taken in both petitions for cancellation
and/or correction of entries in the records of birth of petitioners in the lower courts are
appropriate adversary proceedings.

We agree. As correctly observed by the Court of Appeals:

In the instant case, a petition for cancellation and/or correction of entries of birth was
filed by private respondents and pursuant to the order of the RTC-Manila, dated February
17, 1993, a copy of the order setting the case for hearing was ordered published once a
week for three (3) consecutive weeks in a newspaper of general circulation in the
Philippines. In the RTC-Kalookan, there was an actual publication of the order setting the
case for hearing in "Media Update" once a week for three (3) consecutive weeks. In both
cases notices of the orders were ordered served upon the Solicitor General, the Civil
Registrars of Manila and Kalookan and upon the petitioners herein. Both orders set the
case for hearing and directed the Civil Registrars and the other respondents in the case
below to file their oppositions to the said petitions. A motion to dismiss was consequently
filed by herein petitioners Marcelo, Mariano, Pablo, Helen, Catalino and Eusebio, all
surnamed Lee, and Albina Lee-Young in the RTC-Manila, and an opposition was filed by
Emma Lee in the RTC-Kalookan.

In view of the foregoing, we hold that the petitions filed by the private respondents in the
courts below by way of a special proceeding cancellation and/or correction of entries in
the civil registers with the requisite parties, notices and publications could very well be
regarded as that proper suit or appropriate action.23 (Emphasis supplied.)

The petitioners assert, however, that making the proceedings adversarial does not give trial
courts the license to go beyond the ambit of Rule 108 which is limited to those corrections
contemplated by Article 412 of the New Civil Code or mere clerical errors of a harmless or
innocuous nature.24 The petitioners point to the case of Labayo-Rowe vs. Republic,25 which is of a
later date than Republic vs. Valencia,26 where this Court reverted to the doctrine laid down in
earlier cases,27 starting with Ty Kong Tin vs. Republic,28 prohibiting the extension of the
application of Rule 108 beyond innocuous or harmless changes or corrections. Petitioners
contend that as held in Go, et al. vs. Civil Registrar,29 allowing substantial changes under Rule
108 would render the said rule unconstitutional as the same would have the effect of increasing
or modifying substantive rights.

At the outset, it should be pointed out that in the cited case of Labayo-Rowe vs. Republic,30 the
reason we declared null and void the portion of the lower court's order directing the change of
Labayo-Rowe's civil status and the filiation of one of her children as appearing in the latter's
record of birth, is not because Rule 108 was inappropriate to effect such changes, but because
Labayo-Rowe's petition before the lower court failed to implead all indispensable parties to the
case.
We explained in this wise:

"x x x An appropriate proceeding is required wherein all the indispensable parties should
be made parties to the case as required under Section 3, Rule 108 of the Revised Rules of
Court.

"In the case before Us, since only the Office of the Solicitor General was notified through
the Office of the Provincial Fiscal, representing the Republic of the Philippines as the
only respondent, the proceedings taken, which is summary in nature, is short of what is
required in cases where substantial alterations are sought. Aside from the Office of the
Solicitor General, all other indispensable parties should have been made respondents.
They include not only the declared father of the child but the child as well, together with
the paternal grandparents, if any, as their hereditary rights would be adversely affected
thereby. All other persons who may be affected by the change should be notified or
represented x x x.

xxx xxx xxx

"The right of the child Victoria to inherit from her parents would be substantially
impaired if her status would be changed from 'legitimate' to 'illegitimate'. Moreover, she
would be exposed to humiliation and embarrassment resulting from the stigma of an
illegitimate filiation that she will bear thereafter. The fact that the notice of hearing of the
petition was published in a newspaper of general circulation and notice thereof was
served upon the State will not change the nature of the proceedings taken. Rule 108, like
all the other provisions of the Rules of Court, was promulgated by the Supreme Court
pursuant to its rule-making authority under Section 13, Article VIII of the 1973
Constitution, which directs that such rules 'shall not diminish, increase or modify
substantive rights.' If Rule 108 were to be extended beyond innocuous or harmless
changes or corrections of errors which are visible to the eye or obvious to the
understanding, so as to comprehend substantial and controversial alterations concerning
citizenship, legitimacy of paternity or filiation, or legitimacy of marriage, without
observing the proper proceedings as earlier mentioned, said rule would thereby become
an unconstitutional exercise which would tend to increase or modify substantive rights.
This situation is not contemplated under Article 412 of the Civil Code."31 (italics
supplied).

Far from petitioners' theory, this Court's ruling in Labayo-Rowe vs. Republic32 does not exclude
recourse to Rule 108 of the Revised Rules of Court to effect substantial changes or corrections in
entries of the civil register. The only requisite is that the proceedings under Rule 108 be an
appropriate adversary proceeding as contra-distinguished from a summary proceeding. Thus:

"If the purpose of the petition [for cancellation and/or correction of entries in the civil
register] is merely to correct the clerical errors which are visible to the eye or obvious to
the understanding, the court may, under a summary procedure, issue an order for the
correction of a mistake. However, as repeatedly construed, changes which may affect the
civil status from legitimate to illegitimate, as well as sex, are substantial and controversial
 alterations which can only be allowed after appropriate adversary proceedings depending
upon the nature of the issues involved. Changes which affect the civil status or citizenship
of a party are substantial in character and should be threshed out in a proper action
depending upon the nature of the issues in controversy, and wherein all the parties who
may be affected by the entries are notified or represented and evidence is submitted to
prove the allegations of the complaint, and proof to the contrary admitted x x x."33
(Emphasis supplied.)

It is true that in special proceedings formal pleadings and a hearing may be dispensed with, and
the remedy granted upon mere application or motion. But this is not always the case, as when the
statute expressly provides.34 Hence, a special proceeding is not always summary. One only has to
take a look at the procedure outlined in Rule 108 to see that what is contemplated therein is not a
summary proceeding per se. Rule 108 requires publication of the petition three (3) times, i.e.,
once a week for three (3) consecutive weeks (Sec.4). The Rule also requires inclusion as parties
of all persons who claim any interest which would be affected by the cancellation or correction
(Sec. 3). The civil registrar and any person in interest are also required to file their opposition, if
any, within fifteen (15) days from notice of the petition, or from the last date of publication of
such notice (Sec. 5). Last, but not the least, although the court may make orders expediting the
proceedings, it is after hearing that the court shall either dismiss the petition or issue an order
granting the same (Sec. 7).

Thus, we find no reason to depart from our ruling in Republic vs. Valencia,35 that Rule 108, when
all the procedural requirements thereunder are followed, is the appropriate adversary proceeding
to effect substantial corrections and changes in entries of the civil register.

It must be conceded, however, that even after Republic vs. Valencia36 there continues to be a
seesawing of opinion on the issue of whether or not substantial corrections in entries of the civil
register may be effected by means of Rule 108 in relation to Article 412 of the New Civil Code.
The more recent cases of Leonor vs. Court of Appeals37 and Republic vs. Labrador38 do seem to
signal a reversion to the Ty Kong Tin ruling which delimited the scope of application of Article
412 to clerical or typographical errors in entries of the civil register.

In Republic vs. Labrador, the Court held that Rule 108 cannot be used to modify, alter or
increase substantive rights, such as those involving the legitimacy or illegitimacy of a child. We
ruled thus:

"This issue has been resolved in Leonor vs. Court of Appeals. In that case, Respondent
Mauricio Leonor filed a petition before the trial court seeking the cancellation of the
registration of his marriage to Petitioner Virginia Leonor. He alleged, among others, the
nullity of their legal vows arising from the "non-observance of the legal requirements for
a valid marriage." In debunking the trial court's ruling granting such petition, the Court
held as follows:

'On its face, the Rule would appear to authorize the cancellation of any entry
regarding "marriages" in the civil registry for any reason by the mere filing of a
verified petition for the purpose. However, it is not as simple as it looks.
 Doctrinally, the only errors that can be canceled or corrected under this Rule are
typographical or clerical errors, not material or substantial ones like the validity or
nullity of a marriage. A clerical error is one which is visible to the eyes or obvious
to the understanding; error made by a clerk or a transcriber; a mistake in copying
or writing (Black vs. Republic, L-10869, Nov. 28, 1958); or some harmless and
innocuous change such as a correction of name that is clearly misspelled or of a
misstatement of the occupation of the parent (Ansalada vs. Republic, L-10226,
Feb. 14, 1958).'

'Where the effect of a correction in a civil registry will change the civil status of
petitioner and her children from legitimate to illegitimate, the same cannot be
granted except only in an adversarial x x x .'

'Clearly and unequivocally, the summary procedure under Rule 108, and for that
matter under Article 412 of the Civil Code cannot be used by Mauricio to change
his and Virginia's civil status from married to single and of their three children
from legitimate to illegitimate x x x '

"Thus, where the effect of a correction of an entry in a civil registry will change the status
of a person from "legitimate to "illegitimate," as in Sarah Zita's case, the same cannot be
granted in summary proceedings."39

It is, therefore, high time that we put an end to the confusion sown by pronouncements
seemingly in conflict with each other, and perhaps, in the process, stem the continuing influx of
cases raising the same substantial issue.

The basis for the pronouncement that extending the scope of Rule 108 to substantial corrections
is unconstitutional is embodied in the early case of Ty Kong Tin vs. Republic40 that first
delineated the extent or scope of the matters that may be changed or corrected pursuant to Article
412 of the New Civil Code. The Supreme Court ruled in this case that:

"x x x After a mature deliberation, the opinion was reached that what was contemplated
therein are mere corrections of mistakes that are clerical in nature and not those that may
affect the civil status or the nationality or citizenship of the persons involved. If the
purpose of the petition is merely a clerical error then the court may issue an order in order
that the error or mistake may be corrected. If it refers to a substantial change, which
affects the status or citizenship of a party, the matter should be threshed out in a proper
action depending upon the nature of the issue involved. Such action can be found at
random in our substantive and remedial laws the implementation of which will naturally
depend upon the factors and circumstances that might arise affecting the interested
parties. This opinion is predicated upon the theory that the procedure contemplated in
article 412 is summary in nature which cannot cover cases involving controversial
issues."41

This doctrine was taken a step further in the case of Chua Wee, et al. vs. Republic42 where the
Court said that:
 "From the time the New Civil Code took effect on August 30, 1950 until the
promulgation of the Revised Rules of Court on January 1, 1964, there was no law nor
rule of court prescribing the procedure to secure judicial authorization to effect the
desired innocuous rectifications or alterations in the civil register pursuant to Article 412
of the New Civil Code. Rule 108 of the Revised Rules of Court now provides for such a
procedure which should be limited solely to the implementation of Article 412, the
substantive law on the matter of correcting entries in the civil register. Rule 108, like all
the other provisions of the Rules of Court, was promulgated by the Supreme Court
pursuant to its rule-making authority under Section 13 of Art. VIII of the Constitution,
which directs that such rules of court 'shall not diminish or increase or modify
substantive rights.' If Rule 108 were to be extended beyond innocuous or harmless
changes or corrections of errors which are visible to the eye or obvious to the
understanding, so as to comprehend substantial and controversial alterations concerning
citizenship, legitimacy of paternity or filiation, or legitimacy of marriage, said Rule 108
would thereby become unconstitutional for it would be increasing or modifying
substantive rights, which changes are not authorized under Article 412 of the New Civil
Code."43 (Italics supplied).

We venture to say now that the above pronouncements proceed from a wrong premise, that is,
the interpretation that Article 412 pertains only to clerical errors of a harmless or innocuous
nature, effectively excluding from its domain, and the scope of its implementing rule, substantial
changes that may affect nationality, status, filiation and the like. Why the limited scope of Article
412? Unfortunately, Ty Kong Tin does not satisfactorily answer this question except to opine that
the procedure contemplated in Article 412 is summary in nature and cannot, therefore, cover
cases involving controversial issues. Subsequent cases have merely echoed the Ty Kong Tin
doctrine without, however, shedding light on the matter.

The flaw in Ty Kong Tin lies in its theory that Article 412 contemplates a summary procedure.

First of all, Article 412 is a substantive law that provides as follows:

"No entry in a civil register shall be changed or corrected, without a judicial order."

It does not provide for a specific procedure of law to be followed except to say that the
corrections or changes must be effected by judicial order. As such, it cannot be gleaned therefrom
that the procedure contemplated for obtaining such judicial order is summary in nature.

Secondly, it is important to note that Article 412 uses both the terms "corrected" and "changed".
In its ordinary sense, to correct means to make or set right"; "to remove the faults or errors
from"44 while to change means "to replace something with something else of the same kind or
with something that serves as a substitute".45 The provision neither qualifies as to the kind of
entry to be changed or corrected nor does it distinguish on the basis of the effect that the
correction or change may have. Hence, it is proper to conclude that all entries in the civil register
may be changed or corrected under Article 412. What are the entries in the civil register? We
need not go further than Articles 407 and 408 of the same title to find the answer.
 "Art. 407. Acts, events and judicial decrees concerning the civil status of persons shall be
recorded in the civil register."

"Art. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage;
(6) judgments declaring marriages void from the beginning; (7) legitimations; (8)
adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12)
recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation;
(15) voluntary emancipation of a minor; and (16) changes of name."

It is beyond doubt that the specific matters covered by the preceding provisions include not only
status but also nationality. Therefore, the Ty Kong Tin pronouncement that Article 412 does not
contemplate matters that may affect civil status, nationality or citizenship is erroneous. This
interpretation has the effect of isolating Article 412 from the rest of the articles in Title XVI,
Book I of the New Civil Code, in clear contravention of the rule of statutory construction that a
statute must always be construed as a whole such that the particular meaning to be attached to
any word or phrase is ascertained from the context and the nature of the subject treated.46

Thirdly, Republic Act No. 904847 which was passed by Congress on February 8, 2001
substantially amended Article 412 of the New Civil Code, to wit:

"SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First

Name or Nickname. No entry in a civil register shall be changed or corrected without a
judicial order, except for clerical or typographical errors and change of first name or
nickname which can be corrected or changed by the concerned city or municipal civil
registrar or consul general in accordance with the provisions of this Act and its
implementing rules and regulations."

The above law speaks clearly. Clerical or typographical errors in entries of the civil register are
now to be corrected and changed without need of a judicial order and by the city or municipal
civil registrar or consul general. The obvious effect is to remove from the ambit of Rule 108 the
correction or changing of such errors in entries of the civil register. Hence, what is left for the
scope of operation of Rule 108 are substantial changes and corrections in entries of the civil
register. This is precisely the opposite of what Ty Kong Tin and other cases of its genre had said,
perhaps another indication that it was not sound doctrine after all.

It may be very well said that Republic Act No. 9048 is Congress' response to the confusion
wrought by the failure to delineate as to what exactly is that so-called summary procedure for
changes or corrections of a harmless or innocuous nature as distinguished from that appropriate
adversary proceeding for changes or corrections of a substantial kind. For we must admit that
though we have constantly referred to an appropriate adversary proceeding, we have failed to
categorically state just what that procedure is. Republic Act No. 9048 now embodies that
summary procedure while Rule 108 is that appropriate adversary proceeding. Be that as it may,
the case at bar cannot be decided on the basis of Republic Act No. 9048 which has prospective
application. Hence, the necessity for the preceding treatise.
II. The petitioners contend that the private respondents have no cause of action to bring the cases
below as Article 171 of the Family Code allows the heirs of the father to bring an action to
impugn the legitimacy of his children only after his death.48

Article 171 provides:

"The heirs of the husband may impugn the filiation of the child within the period
prescribed in the preceding article only in the following cases:

"(1) If the husband should die before the expiration of the period fixed for bringing this
action;

"(2) If he should die after the filing of the complaint, without having desisted therefrom;
or

"(3) If the child was born after the death of the husband."

Petitioner's contention is without merit.

In the recent case of Babiera vs. Catotal,49 we upheld the decision of the Court of Appeals that
affirmed the judgment of the RTC of Lanao del Norte declaring the birth certificate of one
Teofista Guinto as null and void ab initio, and ordering the Local Civil Registrar of Iligan City to
cancel the same from the Registry of Live Births. We ruled therein that private respondent
Presentacion Catotal, child of spouses Eugenio Babiera and Hermogena Cariosa, had the
requisite standing to initiate an action to cancel the entry of birth of Teofista Babiera, another
alleged child of the same spouses because she is the one who stands to be benefited or injured by
the judgment in the suit, or the party entitled to the avails of the suit.50

We likewise held therein that:

"x x x Article 171 of the Family Code is not applicable to the present case. A close
reading of the provision shows that it applies to instances in which the father impugns the
legitimacy of his wife's child. The provision, however, presupposes that the child was the
undisputed offspring of the mother. The present case alleges and shows that Hermogena
did not give birth to petitioner. In other words, the prayer therein is not to declare that
petitioner is an illegitimate child of Hermogena, but to establish that the former is not the
latter's child at all x x x. ''51

Similarly, we ruled in Benitez-Badua vs. Court of Appeals52 that:

"Petitioner's insistence on the applicability of Articles 164, 166, 170 and 171 of the
Family Code to the case at bench cannot be sustained. x x x.

xxx xxx xxx

 "A careful reading of the above articles will show that they do not contemplate a
situation, like in the instant case, where a child is alleged not be the child of nature or
biological child of a certain couple. Rather, these articles govern a situation where a
husband (or his heirs) denies as his own a child of his wife. Thus, under Article 166, it is
the husband who can impugn the legitimacy of said child by proving: (1) it was
physically impossible for him to have sexual intercourse, with his wife within the first
120 days of the 300 days which immediately preceded the birth of the child; (2) that for
biological or other scientific reasons, the child could not have been his child; (3) that in
case of children conceived through artificial insemination, the written authorization or
ratification by either parent was obtained through mistake, fraud, violence, intimidation
or undue influence. Articles 170 and 171 reinforce this reading as they speak of the
prescriptive period within which the husband or any of his heirs should file the action
impugning the legitimacy of said child. Doubtless then, the appellate court did not err
when it refused to apply these articles to the case at bench. For the case at bench is not
one where the heirs of the late Vicente are contending that petitioner is not his child by
Isabel. Rather, their clear submission is that petitioner was not born to Vicente and Isabel.
Our ruling in Cabatbat-Lim vs. Intermediate Appellate Court, 166 SCRA 451, 457 cited
in the impugned decision is apropos, viz:

'Petitioners' recourse to Article 263 of the New Civil Code [now Art. 170 of the
Family Code] is not well taken. This legal provision refers to an action to impugn
legitimacy. It is inapplicable to this case because this is not an action to impugn
the legitimacy of a child, but an action of the private respondents to claim their
inheritance as legal heirs of their childless deceased aunt. They do not claim that
petitioner Violeta Cabatbat Lim is an illegitimate child of the deceased, but that
she is not the decedent's child at all. Being neither legally adopted child, nor an
acknowledged natural child, nor a child by legal fiction of Esperanza Cabatbat,
Violeta is not a legal heir of the deceased. "'53

III. Petitioners claim that private respondents' cause of action had already prescribed as more
than five (5) years had lapsed between the registration of the latest birth among the petitioners in
1960 and the filing of the actions in December of 1992 and February of 1993.54

We disagree. As correctly pointed out by the Court of Appeals, inasmuch as no law or rule
specifically prescribes a fixed time for filing the special proceeding under Rule 108 in relation to
Article 412 of the New Civil Code, it is the following provision of the New Civil Code that
applies:

"Art. 1149. other actions whose periods are not fixed in this Code or in other laws must
be brought within five years from the time the right of action accrues."

The right of action accrues when there exists a cause of action, which consists of three (3)
elements, namely: a) a right in favor of the plaintiff by whatever means and under whatever law
it arises or is created; b) an obligation on the part of the defendant to respect such right; and c) an
act or omission on the part of such defendant violative of the right of the plaintiff. It is only when
the last element occurs or takes place that it can be said in law that a cause of action has arisen.55
It is indubitable that private respondents have a cause of action. The last element of their cause of
action, that is, the act of their father in falsifying the entries in petitioners' birth records, occurred
more than thirty (30) years ago. Strictly speaking, it was upon this occurrence that private
respondents' right of action or right to sue accrued. However, we must take into account the fact
that it was only sometime in 1989 that private respondents discovered that they in fact had a
cause of action against petitioners who continue to use said falsified birth records.

Hence, it would result in manifest injustice if we were to deprive private respondents of their
right to establish the truth about a fact, in this case, petitioners' true mother, and their real status,
simply because they had discovered the dishonesty perpetrated upon them by their common
father at a much later date. This is especially true in the case of private respondents who, as their
father's legitimate children, did not have any reason to suspect that he would commit such
deception against them and deprive them of their sole right to inherit from their mother's (Keh
Shiok Cheng's) estate. It was only sometime in 1989 that private respondents' suspicions were
aroused and confirmed. From that time until 1992 and 1993, less than five (5) years had lapsed.

Petitioners would have us reckon the five-year prescriptive period from the date of the
registration of the last birth among the petitioners-siblings in 1960, and not from the date private
respondents had discovered the false entries in petitioners' birth records in 1989. Petitioners base
their position on the fact that birth records are public documents, hence, the period of
prescription for the right of action available to the private respondents started to run from the
time of the registration of their birth certificates in the Civil Registry.

We cannot agree with petitioners' thinking on that point.

It is true that the books making up the Civil Register and all documents relating thereto are
public documents and shall be prima facie evidence of the facts therein contained.56 Petitioners
liken their birth records to land titles, public documents that serve as notice to the whole world.
Unfortunately for the petitioners, this analogy does not hold water. Unlike a title to a parcel of
land, a person's parentage cannot be acquired by prescription. One is either born of a particular
mother or not. It is that simple.

IV. Finally, petitioners accuse private respondents of forum shopping. They enumerate the other
actions filed by private respondents against them prior to the filing of their Rule 108 petitions in
the lower courts, as follows:

(1) A criminal complaint for falsification of entries in the birth certificates filed against
their father as principal and against defendants as alleged accessories;

(2) A petition for the cancellation of the naturalization certificate of their father, Lee Tek
Sheng; and

(3) A petition for partition of Keh Shiok Cheng's estate.57

According to the petitioners, all the three (3) actions above-mentioned, as well as the Rule 108
petitions, subject of the case before us, raise the common issue of whether petitioners are the
natural children of Keh Shiok Cheng or Tiu Chuan. They contend that in all these cases, the
judge or hearing officer would have to resolve this issue in order to determine whether or not to
grant the relief prayed for.58

Forum shopping is present when in the two or more cases pending there is identity of parties,
rights or causes of action and reliefs sought.59 Even a cursory examination of the pleadings filed
by private respondents in their various cases against petitioners would reveal that at the very
least there is no identity of rights or causes of action and reliefs prayed for. The present case has
its roots in two (2) petitions filed under Rule 108, the purpose of which is to correct and/or
cancel certain entries in petitioners' birth records. Suffice it to state, the cause of action in these
Rule 108 petitions and the relief sought therefrom are very different from those in the criminal
complaint against petitioners and their father which has for its cause of action, the commission of
a crime as defined and penalized under the Revised Penal Code, and which seeks the punishment
of the accused; or the action for the cancellation of Lee Tek Sheng naturalization certificate
which has for its cause of action the commission by Lee Tek Sheng of an immoral act, and his
ultimate deportation for its object; or for that matter, the action for partition of Keh Shiok
Cheng's estate which has for its cause of action the private respondents' right under the New
Civil Code to inherit from their mother's estate.

We therefore concur in the finding of the Court of Appeals that there is no forum shopping to
speak of in the concept that this is described and contemplated in Circular No. 28-91 of the
Supreme Court. HCISED

WHEREFORE, the petition is hereby DENIED and the assailed decision of the Court of Appeals
dated October 28, 1994 is AFFIRMED.

SO ORDERED.

REPUBLIC OF THE PHILIPPINES, G.R. No. 170340

Petitioner,

Present:

QUISUMBING,* J., Chairperson

- versus - CARPIO,**

CARPIO MORALES,

TINGA, and
 VELASCO, JR., JJ.

CARLITO I. KHO, MICHAEL KHO,

MERCY NONA KHO-FORTUN,
HEDDY MOIRA KHO-SERRANO,
KEVIN DOGMOC KHO (Minor), and
KELLY DOGMOC KHO (Minor), PROMULGATED:

Respondents.

June 29, 2007

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

DECISION

CARPIO MORALES, J.:

Challenged via petition for review on certiorari is the October 27, 2005 Decision of the
Court of Appeals (CA) in CA-G.R. CV No. 78124 which affirmed the September 4, 2002
Decision of the Regional Trial Court (RTC) of Butuan City, Branch 5 granting the prayer of
respondents Carlito I. Kho (Carlito), Michael Kho, Mercy Nona Kho-Fortun, and Heddy Moira
Kho-Serrano for the correction of entries in their birth certificates as well as those of Carlitos
minor children Kevin and Kelly Dogmoc Kho.

The undisputed facts are as follows:

 On February 12, 2001, Carlito and his siblings Michael, Mercy Nona and Heddy Moira
filed before the RTC of Butuan City a verified petition for correction of entries in the civil
registry of Butuan City to effect changes in their respective birth certificates. Carlito also asked
the court in behalf of his minor children, Kevin and Kelly, to order the correction of some entries
in their birth certificates.

In the case of Carlito, he requested the correction in his birth certificate of the citizenship
of his mother to Filipino instead of Chinese, as well as the deletion of the word married
opposite the phrase Date of marriage of parents because his parents, Juan Kho and Epifania
Inchoco (Epifania), were allegedly not legally married.

The same request to delete the married status of their parents from their respective birth
certificates was made by Carlitos siblings Michael, Mercy Nona, and Heddy Moira.

With respect to the birth certificates of Carlitos children, he prayed that the date of his and
his wifes marriage be corrected from April 27, 1989 to January 21, 2000, the date appearing in
their marriage certificate.

The Local Civil Registrar of Butuan City was impleaded as respondent.

On April 23, 2001, Carlito et al. filed an Amended Petition in which it was additionally
prayed that Carlitos second name of John be deleted from his record of birth; and that the
name and citizenship of Carlitos father in his (Carlitos) marriage certificate be corrected from
John Kho to Juan Kho and Filipino to Chinese, respectively.

As required, the petition was published for three consecutive weeks in Mindanao Daily
Patrol-CARAGA, a newspaper of general circulation, after which it was set for hearing on
August 9, 2001.

In a letter of June 18, 2001 addressed to the trial court, the city civil registrar stated her
observations and suggestions to the proposed corrections in the birth records of Carlito and his
siblings but interposed no objections to the other amendments.

On the scheduled hearing of the petition on August 9, 2001, only the counsel for
respondents appeared as the Office of the Solicitor General (OSG) had yet to enter its appearance
for the city civil registrar. The trial court thus reset the hearing to October 9, 2001. On
September 14, 2001, the OSG entered its appearance with an authorization to the city prosecutor
of Butuan City to appear in the case and render assistance to it (the OSG).

On January 31, 2002, respondents presented documentary evidence showing compliance

with the jurisdictional requirements of the petition. They also presented testimonial evidence
consisting of the testimonies of Carlito and his mother, Epifania. During the same hearing, an
additional correction in the birth certificates of Carlitos children was requested to the effect that
the first name of their mother be rectified from Maribel to Marivel.
 By Decision of September 4, 2002, the trial court directed the local civil registrar of
Butuan City to correct the entries in the record of birth of Carlito, as follows: (1) change the
citizenship of his mother from Chinese to Filipino; (2) delete John from his name; and (3)
delete the word married opposite the date of marriage of his parents. The last correction was
ordered to be effected likewise in the birth certificates of respondents Michael, Mercy Nona, and
Heddy Moira.

Additionally, the trial court ordered the correction of the birth certificates of the minor
children of Carlito to reflect the date of marriage of Carlito and Marivel Dogmoc (Marivel) as
January 21, 2000, instead of April 27, 1989, and the name Maribel as Marivel.

With respect to the marriage certificate of Carlito and Marivel, the corrections ordered
pertained to the alteration of the name of Carlitos father from John Kho to Juan Kho and the
latters citizenship from Filipino to Chinese.

Petitioner, Republic of the Philippines, appealed the RTC Decision to the CA, faulting the
trial court in granting the petition for correction of entries in the subject documents despite the
failure of respondents to implead the minors mother, Marivel, as an indispensable party and to
offer sufficient evidence to warrant the corrections with regard to the questioned married status
of Carlito and his siblings parents, and the latters citizenship.

Petitioner also faulted the trial court for ordering the change of the name Carlito John
Kho to Carlito Kho for non-compliance with jurisdictional requirements for a change of name
under Rule 103 of the Rules of Court.
 By the assailed Decision of October 27, 2005, the CA denied petitioners appeal and
affirmed the decision of the trial court.

The CA found that Rule 108 of the Revised Rules of Court, which outlines the proper
procedure for cancellation or correction of entries in the civil registry, was observed in the case.

Regarding Carlitos minor children Kevin and Kelly, the appellate court held that the
correction of their mothers first name from Maribel to Marivel was made to rectify an
innocuous error.

As for the change in the date of the marriage of Carlito and Marivel, albeit the CA
conceded that it is a substantial alteration, it held that the date would not affect the minors
filiation from legitimate to illegitimate considering that at the time of their respective births
in 1991 and 1993, their father Carlitos first marriage was still subsisting as it had been annulled
only in 1999.

In light of Carlitos legal impediment to marry Marivel at the time they were born, their
children Kevin and Kelly were illegitimate. It followed, the CA went on to state, that Marivel
was not an indispensable party to the case, the minors having been represented by their father as
required under Section 5 of Rule 3 of the Revised Rules of Court.

Further, the CA ruled that although Carlito failed to observe the requirements of Rule 103
of the Rules of Court, he had complied nonetheless with the jurisdictional requirements for
correction of entries in the civil registry under Rule 108 of the Rules of Court. The petition for
correction of entry in Carlitos birth record, it noted, falls under letter o of the enumeration
under Section 2 of Rule 108.

In the present petition, petitioner contends that since the changes sought by respondents
were substantial in nature, they could only be granted through an adversarial proceeding in
which indispensable parties, such as Marivel and respondents parents, should have been notified
or impleaded.

Petitioner further contends that the jurisdictional requirements to change Carlitos name
under Section 2 of Rule 103 of the Rules of Court were not satisfied because the Amended
Petition failed to allege Carlitos prior three-year bona fide residence in Butuan City, and that the
title of the petition did not state Carlitos aliases and his true name as Carlito John I. Kho.
Petitioner concludes that the same jurisdictional defects attached to the change of name of
Carlitos father.

The petition fails.

It can not be gainsaid that the petition, insofar as it sought to change the citizenship of
Carlitos mother as it appeared in his birth certificate and delete the married status of Carlitos
parents in his and his siblings respective birth certificates, as well as change the date of marriage
of Carlito and Marivel involves the correction of not just clerical errors of a harmless and
innocuous nature. Rather, the changes entail substantial and controversial amendments.
 For the change involving the nationality of Carlitos mother as reflected in his birth
certificate is a grave and important matter that has a bearing and effect on the citizenship and
nationality not only of the parents, but also of the offspring.

Further, the deletion of the entry that Carlitos and his siblings parents were married
alters their filiation from legitimate to illegitimate, with significant implications on their
successional and other rights.

Clearly, the changes sought can only be granted in an adversary proceeding. Labayo-
Rowe v. Republic explains the raison d etre:

x x x. The philosophy behind this requirement lies in the fact that the books
making up the civil register and all documents relating thereto shall be prima facie
evidence of the facts therein contained. If the entries in the civil register could
be corrected or changed through mere summary proceedings and not
through appropriate action wherein all parties who may be affected by the
entries are notified or represented, the door to fraud or other mischief would
be set open, the consequence of which might be detrimental and far
reaching. x x x (Emphasis supplied)

In Republic v. Valencia, however, this Court ruled, and has since repeatedly ruled, that
even substantial errors in a civil registry may be corrected through a petition filed under Rule
108.

It is undoubtedly true that if the subject matter of a petition is not for the
correction of clerical errors of a harmless and innocuous nature, but one involving
nationality or citizenship, which is indisputably substantial as well as
 controverted, affirmative relief cannot be granted in a proceeding summary in
nature. However, it is also true that a right in law may be enforced and a
wrong may be remedied as long as the appropriate remedy is used. This
Court adheres to the principle that even substantial errors in a civil registry
may be corrected and the true facts established provided the parties
aggrieved by the error avail themselves of the appropriate adversary
proceeding.

xxxx

What is meant by appropriate adversary proceeding? Blacks Law Dictionary

defines adversary proceeding[] as follows:

One having opposing parties; contested, as distinguished from an ex parte

application, one of which the party seeking relief has given legal warning to the
other party, and afforded the latter an opportunity to contest it. x x x (Emphasis,
italics and underscoring supplied)

The enactment in March 2001 of Republic Act No. 9048, otherwise known as AN ACT
AUTHORIZING THE CITY OR MUNICIPAL CIVIL REGISTRAR OR THE CONSUL
GENERAL TO CORRECT A CLERICAL OR TYPOGRAPHICAL ERROR IN AN ENTRY
AND/OR CHANGE OF FIRST NAME OR NICKNAME IN THE CIVIL REGISTER
WITHOUT NEED OF JUDICIAL ORDER, has been considered to lend legislative affirmation
to the judicial precedence that substantial corrections to the civil status of persons recorded in the
civil registry may be effected through the filing of a petition under Rule 108.

Thus, this Court in Republic v. Benemerito observed that the obvious effect of Republic
Act No. 9048 is to make possible the administrative correction of clerical or typographical errors
or change of first name or nickname in entries in the civil register, leaving to Rule 108 the
correction of substantial changes in the civil registry in appropriate adversarial proceedings.
 When all the procedural requirements under Rule 108 are thus followed, the appropriate
adversary proceeding necessary to effect substantial corrections to the entries of the civil register
is satisfied. The pertinent provisions of Rule 108 of the Rules of Court read:

SEC. 3. Parties. When cancellation or correction of an entry in the civil

registrar is sought, the civil registrar and all persons who have or claim any
interest which would be affected thereby shall be made parties to the
proceeding.

SEC. 4. Notice and publication. Upon the filing of the petition, the
court shall, by an order, fix the time and place for the hearing of the same, and
cause reasonable notice thereof to be given to the persons named in the petition.
The court shall also cause the order to be published once in a week for three (3)
consecutive weeks in a newspaper of general circulation in the province.

SEC. 5. Opposition. The civil registrar and any person having or

claiming any interest under the entry whose cancellation or correction is sought
may, within fifteen (15) days from notice of the petition, or from the last date of
publication of such notice, file his opposition thereto. (Emphasis and underscoring
supplied)

There is no dispute that the trial courts Order setting the petition for hearing and
directing any person or entity having interest in the petition to oppose it was posted as well as
published for the required period; that notices of hearings were duly served on the Solicitor
General, the city prosecutor of Butuan and the local civil registrar; and that trial was conducted
on January 31, 2002 during which the public prosecutor, acting in behalf of the OSG, actively
participated by cross-examining Carlito and Epifania.

What surfaces as an issue is whether the failure to implead Marivel and Carlitos parents
rendered the trial short of the required adversary proceeding and the trial courts judgment void.
 A similar issue was earlier raised in Barco v. Court of Appeals. That case stemmed from
a petition for correction of entries in the birth certificate of a minor, June Salvacion Maravilla, to
reflect the name of her real father (Armando Gustilo) and to correspondingly change her
surname. The petition was granted by the trial court.

Barco, whose minor daughter was allegedly fathered also by Gustilo, however, sought to
annul the trial courts decision, claiming that she should have been made a party to the petition
for correction. Failure to implead her deprived the RTC of jurisdiction, she contended.

In dismissing Barcos petition, this Court held that the publication of the order of hearing
under Section 4 of Rule 108 cured the failure to implead an indispensable party.

The essential requisite for allowing substantial corrections of entries in the

civil registry is that the true facts be established in an appropriate adversarial
proceeding. This is embodied in Section 3, Rule 108 of the Rules of Court, which
states:

Section 3. Parties. When cancellation or correction of an entry in the

civil register is sought, the civil registrar and all persons who have or claim any
interest which would be affected thereby shall be made parties to the proceeding.

xxxx

Undoubtedly, Barco is among the parties referred to in Section 3 of Rule

108. Her interest was affected by the petition for correction, as any judicial
determination that June was the daughter of Armando would affect her wards
share in the estate of her father. x x x.

Yet, even though Barco was not impleaded in the petition, the Court of
Appeals correctly pointed out that the defect was cured by compliance with
Section 4, Rule 108, which requires notice by publication x x x.
 xxxx

The purpose precisely of Section 4, Rule 108 is to bind the whole world to
the subsequent judgment on the petition. The sweep of the decision would cover
even parties who should have been impleaded under Section 3, Rule 108, but
were inadvertently left out. x x x

xxxx

Verily, a petition for correction is an action in rem, an action against a

thing and not against a person. The decision on the petition binds not only the
parties thereto but the whole world. An in rem proceeding is validated essentially
through publication. Publication is notice to the whole world that the proceeding
has for its object to bar indefinitely all who might be minded to make an objection
of any sort against the right sought to be established. It is the publication of such
notice that brings in the whole world as a party in the case and vests the court
with jurisdiction to hear and decide it.

Given the above ruling, it becomes unnecessary to rule on whether Marivel or respondents
parents should have been impleaded as parties to the proceeding. It may not be amiss to
mention, however, that during the hearing on January 31, 2002, the city prosecutor who was
acting as representative of the OSG did not raise any objection to the non-inclusion of Marivel
and Carlitos parents as parties to the proceeding.

Parenthetically, it seems highly improbable that Marivel was unaware of the proceedings
to correct the entries in her childrens birth certificates, especially since the notices, orders and
decision of the trial court were all sent to the residence she shared with Carlito and the children.

It is also well to remember that the role of the court in hearing a petition to correct certain
entries in the civil registry is to ascertain the truth about the facts recorded therein.
 With respect to the date of marriage of Carlito and Marivel, their certificate of marriage
shows that indeed they were married on January 21, 2000, not on April 27, 1989. Explaining the
error, Carlito declared that the date April 27, 1989 was supplied by his helper, adding that he
was not married to Marivel at the time his sons were born because his previous marriage was
annulled only in 1999. Given the evidence presented by respondents, the CA observed that the
minors were illegitimate at birth, hence, the correction would bring about no change at all in the
nature of their filiation.

With respect to Carlitos mother, it bears noting that she declared at the witness stand that
she was not married to Juan Kho who died in 1959. Again, that testimony was not challenged by
the city prosecutor.

The documentary evidence supporting the deletion from Carlitos and his siblings birth
certificates of the entry Married opposite the date of marriage of their parents, moreover,
consisted of a certification issued on November 24, 1973 by St. Joseph (Butuan City) Parish
priest Eugene van Vught stating that Juan Kho and Epifania had been living together as common
law couple since 1935 but have never contracted marriage legally.

A certification from the office of the city registrar, which was appended to respondents
Amended Petition, likewise stated that it has no record of marriage between Juan Kho and
Epifania. Under the circumstances, the deletion of the word Married opposite the date of
marriage of parents is warranted.

With respect to the correction in Carlitos birth certificate of his name from Carlito
John to Carlito, the same was properly granted under Rule 108 of the Rules of Court. As
correctly pointed out by the CA, the cancellation or correction of entries involving changes of
name falls under letter o of the following provision of Section 2 of Rule 108:

Section 2. Entries subject to cancellation or correction. Upon good

and valid grounds, the following entries in the civil register may be cancelled or
corrected: (a) births; (b) marriages; (c) deaths; (d) legal separation; (e) judgments
of annulment of marriage; (f) judgments declaring marriages void from the
beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural
children; (j) naturalization; (k) election, loss or recovery of citizenship; (l) civil
interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of
a minor; and (o) changes of name. (Emphasis and underscoring supplied)

Hence, while the jurisdictional requirements of Rule 103 (which governs petitions for
change of name) were not complied with, observance of the provisions of Rule 108 suffices to
effect the correction sought for.

More importantly, Carlitos official transcript of record from the Urious College in
Butuan City, certificate of eligibility from the Civil Service Commission, and voter registration
record satisfactorily show that he has been known by his first name only. No prejudice is thus
likely to arise from the dropping of the second name.

The correction of the mothers citizenship from Chinese to Filipino as appearing in

Carlitos birth record was also proper. Of note is the fact that during the cross examination by
the city prosecutor of Epifania, he did not deem fit to question her citizenship. Such failure to
oppose the correction prayed for, which certainly was not respondents fault, does not in any way
change the adversarial nature of the proceedings.
 Also significant to note is that the birth certificates of Carlitos siblings uniformly stated
the citizenship of Epifania as Filipino. To disallow the correction in Carlitos birth record of
his mothers citizenship would perpetuate an inconsistency in the natal circumstances of the
siblings who are unquestionably born of the same mother and father.

Outside the ambit of substantial corrections, of course, is the correction of the name of
Carlitos wife from Maribel to Marivel. The mistake is clearly clerical or typographical,
which is not only visible to the eyes, but is also obvious to the understanding considering that the
name reflected in the marriage certificate of Carlito and his wife is Marivel.

Apropos is Yu v. Republic which held that changing the appellants Christian name of
Sincio to Sencio amounts merely to the righting of a clerical error. The change of name from
Beatriz Labayo/Beatriz Labayu to Emperatriz Labayo was also held to be a mere innocuous
alteration, which can be granted through a summary proceeding. The same ruling holds true
with respect to the correction in Carlitos marriage certificate of his fathers name from John
Kho to Juan Kho. Except in said marriage certificate, the name Juan Kho was uniformly
entered in the birth certificates of Carlito and of his siblings.

WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals is

AFFIRMED.

SO ORDERED.