1. G.R. No.

L-7476 October 9, 1913

AGUEDA BENEDICTO DE LA RAMA, Plaintiff-Appellant, vs. ESTEBAN DE LA RAMA,Defendant-Appellant.

Hausermann, Cohn and Fisher for plaintiff.

Espiridion Guanko and Jose M.a Arroyo for defendant.

CARSON, J.:

The plaintiff in this action charged her husband with adultery and prayed for a divorce, the division of the
conjugal property, and alimony pendente lite. Defendant in his answer denied the adultery charged
against him, charged his wife with adultery, and alleged that his only income was a salary of P450 per
month received as manager of the firm "Hijos de I. de la Rama." Judgment was rendered against the
defendant by the trial court granting a divorce, dissolving the conjugal partnership, and allowing plaintiff
the sum of P81,042.76 as her share of the conjugal property, and P3,200 as
alimony.chanroblesvirtualawlibrary chanrobles virtual law library

From this judgment the defendant appealed to this court, which reversed the judgment of the trial court,
being of opinion that the evidence showed that both plaintiff and defendant had committed adultery and
that neither was entitled to a divorce.chanroblesvirtualawlibrary chanrobles virtual law library

Thereafter plaintiff appealed to the Supreme Court of the United States, which reversed the judgment of
this court (De la Rama vs. De la Rama, 201 U. S. 303; 11 Phil. Rep., 746). The opinion of that court
concluded as follows:

We have reached the conclusion that there is no such preponderance of evidence in favor of the theory
of plaintiff's guilt as authorized the Supreme Court to set aside the conclusions of the court below upon
the ground that these findings were plainly and manifestly against the weight of the evidence. In this
connection it is proper to bear in mind that the trial judge shall all these witnesses before him and
doubtless formed his conclusions largely from their appearance on the stand, their manner of giving
testimony, and their apparent credibility. Under the circumstances we think the Supreme Court should
have affirmed rather than reversed the action of the lower court.chanroblesvirtualawlibrary chanrobles
virtual law library

While the right of the plaintiff to her proportion of the conjugal property, to alimony pending suit, and to
other allowances claimed is the basis of our jurisdiction, the decree of the Supreme Court in dismissing
plaintiff's petition renders it unnecessary to review the action of the Court of First Instance in fixing the
amount that it held plaintiff was entitled to recover. We are, therefore, of the opinion that the decree of
the Supreme Court dismissing the petition must be reversed and the cause remanded to that court for
further proceedings not inconsistent with this opinion.

After the case had been remanded to this court, plaintiff moved that the original judgment of the Court
of First Instance be affirmed. The ruling of this court upon that motion was in part as follows (7 Phil. Rep.,
745):

Upon the defendant's appeal from the Court of First Instance to this court, eight errors were assigned by
him. The first four relate to the question of adultery. This court sustained those assignments and said:
"Our conclusion is that neither one of the parties is entitled to a divorce. The result makes it unnecessary
to consider that part of the judgment which relates to the settlement of the conjugal partnership."

The action of this court upon those four assignments of error relating to adultery was reversed by the
Supreme Court of the United States, and by the decision of that court they were definitely disposed of.
The other assignments of error relate to the part of the decision of the Court of First Instance which treats
of the division of the conjugal property, the allowance of alimony, and the order of the court below that
the case be referred to the fiscal for criminal proceedings against the defendant. As has been said, these
assignments of error were not considered by this court in view of the result which it reached upon the
other assignments. Nor were they discussed by the Supreme Court of the United
States.chanroblesvirtualawlibrary chanrobles virtual law library

The claim of the appellant now is, however, that the whole case was finally disposed of by the decision of
the latter court, and that the only thing remaining for this court to do is to affirm the judgment of the
Court of First Instance in its entirety.chanroblesvirtualawlibrary chanrobles virtual law library

With this view we cannot agree. The only thing considered by the Supreme Court of the United States was
that part of the decision of the Court of First Instance which relate to the right of the plaintiff to a divorce.
It did not pass upon the division of the conjugal property. Its order was that the case be remanded to this
court for further proceedings not inconsistent with its opinion. If the contention of the plaintiff is true, it
seems that the order of that court would have been one reversing the judgment of this court and affirming
that of the Court of First Instance. By remanding the case to this court for further proceedings not
inconsistent with the opinion of the Supreme Court, it seems to have been the intention of that court that
this court should dispose of the assignments of error not already disposed of.

xxx xxx x x xchanrobles virtual law library

The sixth assignment of error was as follows:

"Error was incurred in fixing the amount of the half of said alleged conjugal property at P81,042.75,
without having examined the necessary antecedents and data, and, moreover, without having taken into
account the losses suffered and the debts contracted by the firm Hijos de I. de la Rama."

This assignment of error not having been considered either by the Supreme Court of the United States or
by this court, is now open to consideration by us, and must, we think, be sustained. The Civil Code states
in detail the manner in which the affairs of a conjugal partnership shall be settled after the same has been
dissolved. Article 1418 provides, except in certain cases not here important, that an inventory shall at
once be made. We have held in the case ofAlfonso vs. Natividad (6 Phil. Rep., 240), that when the
partnership is dissolved by the death of the husband this inventory must be made in the proceedings for
the settlement of his estate. And in the case of Prado vs. Lagera (7 Phil. Rep., 395), that the inventory thus
formed must include the bienes parafernales of the wife. It is very evident from the provisions of the Civil
Code that the inventory includes the capital of the husband, the dowry of the wife, the bienes
parafernales of the wife, and all the property acquired by the partnership during its existence. After this
inventory has been made it is provided by article 1421 that there shall be first paid the dowry of the wife,
in the second place the bienes parafernales of the wife, in the third place the debts and obligations of the
conjugal partnership, and in the fourth place the capital of the husband. Articles 1424 and 1426 then
provides as follows:
"ART. 1424. After the deductions from the inventoried estate specified in the three preceding articles have
been made, the remainder of the same estate shall constitute the assets of the conjugal
property."chanrobles virtual law library

"ART. 1426. The net remainder of the partnership property shall be divided, share and share alike,
between the husband and the wife, or their respective heirs."

It is thus seen that the conjugal property which is to be divided when the partnership is dissolved is
determined not with reference to the income or profits which may have been received during the
partnership by the spouses, but rather by the amount of the actual property possessed by them at such
dissolution after making the deductions and payments aforesaid. This is positively provided by article
1424.chanroblesvirtualawlibrary chanrobles virtual law library

An examination of the decision of the Court of First Instance shows that no attempt was made to comply
with any one of these statutory provision. No inventory of the partnership property existing at the time
of the trial, at which the liquidation was made, was ever formed. No provision was made for paying to the
wife the sum of 2,000 pesos which was either the dowry or bienes parafernales of the wife. No provision
was made for returning to the husband his capital in the partnership, which amounted to at least one-
third of the assets of the firm of Hijos de I. de la Rama, which assets, according to the inventory made
January 30, 1901, amounted to 1,130,568 pesos. The court below rejected entirely the method prescribed
by the Civil Code for the liquidation of this partnership and in fact liquidated it, as appears from the
decision, upon an entirely different basis. He determined in the first place the income which each person
had received from his or her property during the partnership, finding that the wife during that time had
received from her property 345 pesos as income and that the husband had received 162,430.53 pesos.
He then says:

"The total value, therefore, of the conjugal partnership existing between the plaintiff and the defendant
in the present case amounts to 162,775.53 pesos. The words of the statute say that the same must be
divided share and share alike. This means that each should have 81,287.76 pesos. The wife already having
in her possession 345 pesos of this sum, she is entitled to receive from the husband 81,042.76 pesos as
being the sum necessary to equalize the holdings of the property which, according to the statute, must
be regarded as belonging to the conjugal partnership."

It needs no argument to show that this manner of liquidating the affairs of the conjugal partnership is
entirely unwarranted by the law. The theory of the Civil Code is that the conjugal property is the actual
property which is left at the dissolution of the partnership. It can, therefore, never be determined by
adding up the profits, which had been made each year during its existence, and then saying that result is
the conjugal property. The difference between the two system of liquidation is a well illustrated in this
case. The court below found that the profits of the partnership of Hijos de I. de la Rama from the time of
its organization up to June 30, 1901, amounted to 290,101.31 pesos. The evidence in the case shows,
however, that the capital with which the firm started was 1,058,192 pesos, and that on June 30, 1901, the
value of its entire property was 1,130,568 pesos, an increase of only 72,376 pesos. Taking the method
adopted by the court below, if the conjugal partnership had been dissolved on June 30, 1901, it would
have had as an assets one-fourth of this sum of 290,101.31 pesos, but following the rule laid down by the
Civil Code it would have only had one-fourth of 72,376 pesos, the difference between the value of the
property of said firm when it was organized and its value on the 30th of June,
1901.chanroblesvirtualawlibrary chanrobles virtual law library
The other assignments of error were not urged in the last brief presented by the appellant and in any
event we do not think they can be sustained.chanroblesvirtualawlibrary chanrobles virtual law library

The result is that part of the judgment of the Court of First Instance ordering the divorce, ordering the
payment of 3,200 pesos Mexican currency by the defendant to the plaintiff, and the costs of the action, is
affirmed. That part of it order in the payment by the defendant to the plaintiff of 81,042.76 pesos Mexican
currency is set aside, and the case is remanded to the court below for the purpose of liquidating in this
action the affairs of the conjugal partnership (considering the same to have been dissolved on the 5th of
July, 1902) in accordance with the rules laid down in the Civil Code, and a judgment will be entered in that
court for the amount which appears from such liquidation to be due from the defendant to the plaintiff.

To the judgment of this court overruling the motion and sending the case back to the Court of First
Instance for a new trial, plaintiff duly saver her exception.chanroblesvirtualawlibrary chanrobles virtual
law library

Upon the new trial in the court below, judgment was rendered in favor of the plaintiff for the sum of
P58,543.37, with interest at the rate of 6 per cent per annum from July 5, 1902, the date of the original
judgment decreeing the divorce.chanroblesvirtualawlibrary chanrobles virtual law library

From this judgment both plaintiff and defendant appealed, and the case is once again before us upon
their bills of exception.chanroblesvirtualawlibrary chanrobles virtual law library

Plaintiff on this appeal adheres to her contentions set up in the motion to affirm the original judgment of
the Court of First Instance submitted after the case had been remanded to this court from the Supreme
Court of the United States and insist that:

This court was without jurisdiction to review the evidence taken in the court below at the first trial, or
retry the questions of fact, because the defendant failed to file in the Court of First Instance a motion for
a new trial, upon the ground that the findings of fact were plainly and manifestly against the weight of
evidence.chanroblesvirtualawlibrary chanrobles virtual law library

The action of this court of January 23, 1907, in holding that the motion for a new trial in the Court of First
Instance on the ground that the "conclusions which in said decision had been deduced from the facts are
contradictory to what the evidence filed in the case has shown," is a compliance with section 497,
paragraph 3, of the Code of Civil Procedure, is consistent with and contrary to the unanimous opinion of
the Supreme Court of the United States expressed in the decision of that court on said identical motion
then under consideration by said court in this cause on appeal, and such ruling, therefore, is a failure to
comply with the mandate of the said United States Supreme Court.chanroblesvirtualawlibrary chanrobles
virtual law library

In any event, the findings of the Court of First Instance were not so "plainly and manifestly against the
weight of evidence," as to authorize this court to set aside said findings of fact and set aside and annul
the judgment rendered by the trial court based on said findings of fact.

All of the contentions of plaintiff-appellant in support of these assignments of error were disposed of in
the opinion filed upon her motion in 1906 in De la Rama vs. De la Rama (7 Phil. Rep., 745), as appears from
the extracts therefrom hereinbefore set forth; and the court is of opinion that it should adhere to the
position taken at that time.chanroblesvirtualawlibrary chanrobles virtual law library
The contentions of the defendant-appellant on this appeal are, substantially, that the trial court erred in
its findings of fact as to the value of the conjugal property, and in the mode of procedure adopted in
liquidating the partnership assets.chanroblesvirtualawlibrary chanrobles virtual law library

After a careful review of the entire record, we think that the findings of fact by the trial judge are fully
sustained by the evidence, and that the method adopted by him in liquidating the assets of the conjugal
partnership was substantially in accord with the method prescribed in the code and indicated in our
opinion filed with our judgment remanding the case for a new trial. (De la Rama vs. De la Rama, 7 Phil.
Rep., 745.)chanrobles virtual law library

The principal contention of defendant-appellant on this appeal is that the trial court erred in failing to
deduct from the amount allowed to the plaintiff-appellant the sum of P45,567, that being the amount of
conjugal property which defendant claims "had accumulated and come into plaintiff's possession" at the
time when the divorce was granted.chanroblesvirtualawlibrary chanrobles virtual law library

We agree with the trial judge that the evidence of record fails utterly to sustain this extraordinary
contention. Discussing the defendant's claim in this regard the trial court said: "The testimony presented
by defendant to establish his claim that plaintiff had accumulated and was in possession of P45,567 of
conjugal property is very uncertain and unsatisfactory and much of it is not pertinent and cannot be
considered. Much of it relates to transactions carried on by her in the purchase of nipa and palay some
considerable period prior to July 5, 1902, and to personal and real property that came into her possession
by gift or purchase (and partly on borrowed funds) some years after that period. The testimony presented
on her behalf in the most material parts is in flat contradiction of that on behalf of the defendant, and it
appears the more reasonable, and in conformity with her mode and manner of living. It is the opinion of
this court that the evidence does not show that on July 5, 1902, the plaintiff was possessed, in the concept
of owner, of property in excess of value over the P2,000 inherited from her father and her individual loans
and indebtedness."chanrobles virtual law library

And elsewhere in his opinion the trial judge, commencing upon defendant's claim, made use of the
following language: "His reason for insisting that she is only entitled to recover from him less than P1,000
is that he contends that the testimony presented by him shows that his wife, since her separation from
him in 1892 and up to July 5, 1902, had accumulated by her own efforts and with no other capital than
the P2,000 left her in 1899, the amount of P45,567 of conjugal property.

That is, the defendant contends that while he, as manager of a firm of over a million pesos capital, drawing
a large salary with other perquisites, and having a one-fourth and sometimes a one-third interest as a
copartner, has only succeeded in acquiring some P50,000 of conjugal property - while his wife, a girl only
fifteen years old at the time of their separation, has supported herself and with only P2,000, left her in
1889, has by her sole efforts accumulated P45,000 of conjugal property in the same period of time.

In so far as defendant-appellant's assignments of error are based on the action of the trial court in refusing
to accept as true the contents of the document described as Exhibit 1, it might be sufficient to say that
we are of opinion that the reasons for doing so set forth by the trial judge himself in his opinion are a
sufficient refutation of defendant-appellant's contention in this regard. Exhibit 1 purports to be an
inventory of the property of the firm of "hijos de I. de la Rama" as of July 5, 1902. The bulk of the conjugal
property. As pointed out by the trial judge, this inventory appears to have been prepared by or for the
defendant for the purposes of this action; and in any event it was prepared after this action was originally
instituted and under conditions which justified the trial judge in believing that the defendant had every
opportunity to intervene in its preparation and to use his personal influence to have the document speak
favorably to his contentions. Granting that it is true, as contended by defendant, that this document was
admitted in evidence without objection, it by no means follows that the trial judge was bound to accept
its contents as true where other evidence of record disclosed its inaccuracies and its failure correctly to
list the properties in question. It was admitted for what it was worth as evidence, but in very nature of
things, it should not be held as conclusive of the truth of its contents. We think that the trial judge is fully
sustained by the evidence of record in his findings that this inventory failed to set forth the true status of
the affairs of the company, and we are of opinion, and so hold, that there was no error in his findings as
to the true value of the property in question.chanroblesvirtualawlibrary chanrobles virtual law library

What has been said sufficiency disposes of all the errors assigned. We are of opinion, therefore, that there
is nothing in the record which would justify us in sustaining the contentions of the defendant-appellant
as to error in the findings of fact or in the conclusions drawn therefrom in the opinion filed by the trial
judge.chanroblesvirtualawlibrary chanrobles virtual law library

The judgment entered in the court below should be and is hereby affirmed, without costs to either
party.chanroblesvirtualawlibrary chanrobles virtual law library

2. REDENTOR ALBANO, complainant,

vs.
MUNICIPAL JUDGE PATROCINIO C. GAPUSAN of Dumalneg, Ilocos Norte, respondent.

RESOLUTION

AQUINO, J.:

Redentor Albano in a verified complaint dated August 18, 1975 charged Municipal Judge Patrocinio C.
Gapusan of Dumalneg and Adams, Ilocos Norte (1) with incompetence and Ignorance of the law for having
prepared and notarized a document providing for tile personal separation of husband and wife and the
extrajudicial liquidation of their conjugal partnership and (2) with having allegedly influenced Judge
Zacarias A. Crispin of the Court of First Instance of Ilocos Norte in deciding two criminal cases.

Malpractice as a notary. In 1941 or five years before his appointment to the bench, respondent
Gapusan notarized a document for the personal separation of the spouses Valentina Andres and
Guillermo Maligta of Barrio 6, Vintar, Ilocos Norte and for the extrajudicial liquidation of their conjugal
partnership.

It was stipulated in that document that if either spouse should commit adultery or concubinage, as the
case may be, then the other should refrain from filing an action against the other.

Judge Gapusan denied that he drafted the agreement. He explained that the spouses had been separated
for a long time when they signed the separation agreement and that the wife had begotten children with
her paramour. He said that there was a stipulation in the agreement that the spouses would live together
in case of reconciliation. His belief was that the separation agreement forestalled the occurrence of violent
incidents between the spouses.
Albano in filing the malpractice charge is in effect asking this Court to take belated disciplinary action
against Judge Gapusan as a member of the bar or as a notary. (He was admitted to the bar in 1937).

There is no question that the covenents contained in the said separation agreement are contrary to law,
morals and good customs (Biton vs. Momongan, 62 Phil. 7). Those stipulations undermine the institutions
of marriage and the family, "Marriage is not a mere contract but an inviolable social institution". "The
family is a basic social institution which public policy cherishes and protects." (Arts. 52 and 216, Civil Code).
Marriage and the family are the bases of human society throughout the civilized world (Adong vs. Cheong
Seng Gee, 43 Phil. 43; Ramirez vs. Gmur, 42 Phil. 855, 864; Goitia vs. Campos Rueda, 35 Phil. 252, 254;
Brown vs. Yambao, 102 Phil. 168).

To preserve the institutions of marriage and the family, the law considers as void "any contract for
personal separation between husband and wife" and "every extrajudicial agreement, during the marriage,
for the dissolution of the conjugal partnership" (Art. 221, Civil Code). Before the new Civil Code, it was
held that the extrajudicial dissolution of the conjugal partnership without judicial sanction was void
(Quintana vs. Lerma, 24 Phil. 285; De Luna vs. Linatoc, 74 Phil. 15).

A notary should not facilitate the disintegration of a marriage and the family by encouraging the
separation of the spouses and extrajudically dissolving the conjugal partnership. Notaries were severely
censured by this Court for notarizing documents which subvert the institutions of marriage and the family
(Selanova vs. Mendoza, Adm. Matter No. 804-CJ, May 19, 1975, 64 SCRA 69; Miranda vs. Fuentes, Adm.
Case No. 241, April 30, 1966, 16 SCRA 802; Biton vs. Momongan, supra,, Panganiban vs. Borromeo, 58
Phil. 367; In re Santiago, 70 Phil. 66; Balinon vs. De Leon, 94 Phil. 277).

Respondent Gapusan as a member of the bar should be censured for having notarized the void separation
agreement already mentioned.

However, his notarization of that document does not warrant any disciplinary action against him as a
municipal judge (he was appointed in 1946 as justice of the peace) especially considering that his
appointment to the judiciary was screened by the Commission on Appointments (See Ty vs. San Diego,
Adm. Matter No. 169-J, June 29, 1972).

Alleged misconduct in influencing CFI Judge. Albano complains that Judge Gapusan took advantage of
his intimacy with Judge Crispin. He implies that by reason of that intimacy Judge Crispin acquitted of
frustrated murder the defendants in Criminal Case No. 102-III, People vs. Freddie Gapusan Gamboa, et al.
and convicted Albano (complainant herein) of double frustrated murder with triple attempted murder in
Criminal Case No. 70-III.

Albano said that Freddie Gapusan, an accused in the first criminal case above-mentioned and a
complaining witness in the other case against Albano, is a relative of Judge Gapusan. He revealed that
after the acquittal decision was rendered by Judge Crispin in Criminal Case No. 102 III, the relatives of the
accused in that case were saying that their relationship to Judge Gapusan, a friend of Judge Crispin, proved
to be "worthwhile and useful".

Judge Gapusan admitted in his answer that he is close to Judge Crispin because they used to be members
of the Municipal Judges League (when it was headed by Judge Crispin) and because the latter used to be
an Executive Judge (with supervision over municipal judges). Respondent said that his association with
Judge Crispin "was purely official".
Judge Gapusan also admitted that Freddie Gapusan is his distant relative. He denied that he influenced
Judge Crispin in rendering his decisions in the two criminal cases.

It is manifest that Alliano's imputation that Judge Gapusan influenced Judge Crispin is anchored on mere
suspicion. If he has any evidence that Judge Crispin committed any irregularity due to the alleged influence
exerted by Judge Gapusan, then Albano should have complained against Judge Crispin's actuations. He
should riot vent his ire on Judge Gapusan alone.

When an officer or court allows itself to enter upon the sea of suspicion, it permits itself to enter upon a
sea which has no shore, and the embarkation is without a rudder or compass to control the direction or
to ascertain its bearing." (Dy Keng vs. Collector of Customs, 40 Phil, 118, 123).

A person has freedom to choose his friends and to hobnob with them. It is not a crime nor unethical per
se for a municipal judge to fraternize with a Judge of the Court of First Instance. Whether the fraternization
resulted in an unjust verdict rendered by the Judge of the Court of First Instance due to the sinister or
corruptive influence of the municipal judge cannot be shown by mere inference, or conjecture. It should
be Substantiated by solid evidence. The unjustness of the decision should be indubitably established.

The second charge should be dismissed for being speculative and unfair to Judge Crispin. (He retired in
September, 1975).

WHEREFORE, the respondent, as a member of the bar, is for having notarized the above-mentioned void
agreement. The second charge is dismissed.

SO ORDERED.

3. A.M. No. 1637 July 6, 1976

IN RE: ATTY. RUFILLO D. BUCANA, respondent.

RESOLUTION

ANTONIO, J.:

Acting upon the letter of Mrs. Angela Drilon Baltazar, Barangay Captain of Victories, Dumangas, Iloilo,
dated February 26, 1976, respondent Notary Public Rufillo D. Bucana was required by this Court in its
Resolution of March 23, 1976, to show cause within ten (10) days from notice, why he should not be
disciplinarily dealt with for having notarized on November 10, 1975 at Dumangas, Iloilo an Agreement
executed by the spouses Gonzalo Baltazar and Luisa Sorongon wherein the afore-mentioned spouses
agreed therein that "in case anyone of them will remarry both parties offer no objection and waive all civil
and criminal actions against them" and that the afore-mentioned Agreement was "entered into for the
purpose of agreement to allow each and everyone of them to remarry without objection or reservation
...", which affidavit is contrary to law because it sanctions an illicit and immoral purpose.

On April 21, 1976, respondent . submitted his explanation, admitting that he notarized the afore-
mentioned document and that the Agreement is "immoral and against public policy", but in mitigation he
asserted that the document in question was Prepared by his clerk, Lucia D. Doctolero without his previous
knowledge; that when said document was presented to him for signature after it was signed by the
parties, he vehemently refused to sign it and informed the parties that the document was immoral; that
he placed the said document on his table among his files and more than a week later, he asked his clerk
where the document was for the purpose of destroying it, but to his surprise he found that the same was
notarized by him as per his file copies in the office; that he dispatched his clerk to get the copy from the
parties, but the afore-mentioned parties could not be found in their respective residences; that he must
have inadvertently notarized the same in view of the numerous documents on his table and at that time
he was emotionally disturbed as his father (now deceased) was then seriously ill. The foregoing
contentions of respondent were corroborated substantially by the separate sworn statements of his clerk,
Lucia D. Doctolero and Angela Drilon Baltazar, both dated April 20, 1976. 1

There is no question that the afore-mentioned Agreement is contrary to law, morals and good customs.
Marriage is an inviolable social institution, in the maintenance of which in its purity the public is deeply
interested for it is the foundation of the family and of society without which there could be neither
civilization nor progress. 2

The contract, in substance, purports to formulate an agreement between the husband and the wife to
take unto himself a concubine and the wife to live in adulterous relations with another man, without
opposition from either one, and what is more, it induces each party to commit bigamy. 3 This is not only
immoral but in effect abets the commission of a crime. A notary public, by virtue of the nature of his office,
is required to exercise his duties with due care and with due regard to the provisions of existing law.

As stressed by Justice Malcolm in Panganiban v. Borromeo, 4 "it is for the notary to inform himself of the
facts to which he intends to certify and to take part in no illegal enterprise. The notary public is usually a
person who has been admitted to the practice of law, and as such, in the commingling of his duties notary
and lawyer, must be held responsible for both. We are led to hold that a member of the bar who performs
an act as a notary public of a disgraceful or immoral character may be held to account by the court even
to the extent of disbarment."

In the case at bar, respondent in effect pleads for clemency, claiming that the notarization of the
questioned document was due to his negligence. We find, however, that the aforementioned document
could not have been notarized if the respondent had only exercised the requisite care required by law in
the exercise of his duties as notary public.

WHEREFORE, We hold that respondent Rufillo D. Bucana is guilty of malpractice and is hereby suspended
from the office of not try public for a period of six (6) months, with the admonition that a repetition of
the same or a similar act in the future will be dealt with more severely.

4. G.R. No. L-19671 November 29, 1965

PASTOR B. TENCHAVEZ, plaintiff-appellant,

vs.
VICENTA F. ESCAO, ET AL., defendants-appellees.

I. V. Binamira & F. B. Barria for plaintiff-appellant.

Jalandoni & Jarnir for defendants-appellees.

REYES, J.B.L., J.:

Direct appeal, on factual and legal questions, from the judgment of the Court of First Instance of Cebu, in
its Civil Case No. R-4177, denying the claim of the plaintiff-appellant, Pastor B. Tenchavez, for legal
separation and one million pesos in damages against his wife and parents-in-law, the defendants-
appellees, Vicente, Mamerto and Mena,1 all surnamed "Escao," respectively.2

The facts, supported by the evidence of record, are the following:

Missing her late afternoon classes on 24 February 1948 in the University of San Carlos, Cebu City, where
she was then enrolled as a second year student of commerce, Vicenta Escao, 27 years of age (scion of a
well-to-do and socially prominent Filipino family of Spanish ancestry and a "sheltered colegiala"),
exchanged marriage vows with Pastor Tenchavez, 32 years of age, an engineer, ex-army officer and of
undistinguished stock, without the knowledge of her parents, before a Catholic chaplain, Lt. Moises
Lavares, in the house of one Juan Alburo in the said city. The marriage was the culmination of a previous
love affair and was duly registered with the local civil register.

Vicenta's letters to Pastor, and his to her, before the marriage, indicate that the couple were deeply in
love. Together with a friend, Pacita Noel, their matchmaker and go-between, they had planned out their
marital future whereby Pacita would be the governess of their first-born; they started saving money in a
piggy bank. A few weeks before their secret marriage, their engagement was broken; Vicenta returned
the engagement ring and accepted another suitor, Joseling Lao. Her love for Pastor beckoned; she pleaded
for his return, and they reconciled. This time they planned to get married and then elope. To facilitate the
elopement, Vicenta had brought some of her clothes to the room of Pacita Noel in St. Mary's Hall, which
was their usual trysting place.

Although planned for the midnight following their marriage, the elopement did not, however, materialize
because when Vicente went back to her classes after the marriage, her mother, who got wind of the
intended nuptials, was already waiting for her at the college. Vicenta was taken home where she admitted
that she had already married Pastor. Mamerto and Mena Escao were surprised, because Pastor never
asked for the hand of Vicente, and were disgusted because of the great scandal that the clandestine
marriage would provoke (t.s.n., vol. III, pp. 1105-06). The following morning, the Escao spouses sought
priestly advice. Father Reynes suggested a recelebration to validate what he believed to be an invalid
marriage, from the standpoint of the Church, due to the lack of authority from the Archbishop or the
parish priest for the officiating chaplain to celebrate the marriage. The recelebration did not take place,
because on 26 February 1948 Mamerto Escao was handed by a maid, whose name he claims he does not
remember, a letter purportedly coming from San Carlos college students and disclosing an amorous
relationship between Pastor Tenchavez and Pacita Noel; Vicenta translated the letter to her father, and
thereafter would not agree to a new marriage. Vicenta and Pastor met that day in the house of Mrs. Pilar
Mendezona. Thereafter, Vicenta continued living with her parents while Pastor returned to his job in
Manila. Her letter of 22 March 1948 (Exh. "M"), while still solicitous of her husband's welfare, was not as
endearing as her previous letters when their love was aflame.

Vicenta was bred in Catholic ways but is of a changeable disposition, and Pastor knew it. She fondly
accepted her being called a "jellyfish." She was not prevented by her parents from communicating with
Pastor (Exh. "1-Escao"), but her letters became less frequent as the days passed. As of June, 1948 the
newlyweds were already estranged (Exh. "2-Escao"). Vicenta had gone to Jimenez, Misamis Occidental,
to escape from the scandal that her marriage stirred in Cebu society. There, a lawyer filed for her a
petition, drafted by then Senator Emmanuel Pelaez, to annul her marriage. She did not sign the petition
(Exh. "B-5"). The case was dismissed without prejudice because of her non-appearance at the hearing
(Exh. "B-4").

On 24 June 1950, without informing her husband, she applied for a passport, indicating in her application
that she was single, that her purpose was to study, and she was domiciled in Cebu City, and that she
intended to return after two years. The application was approved, and she left for the United States. On
22 August 1950, she filed a verified complaint for divorce against the herein plaintiff in the Second Judicial
District Court of the State of Nevada in and for the County of Washoe, on the ground of "extreme cruelty,
entirely mental in character." On 21 October 1950, a decree of divorce, "final and absolute", was issued
in open court by the said tribunal.

In 1951 Mamerto and Mena Escao filed a petition with the Archbishop of Cebu to annul their daughter's
marriage to Pastor (Exh. "D"). On 10 September 1954, Vicenta sought papal dispensation of her marriage
(Exh. "D"-2).

On 13 September 1954, Vicenta married an American, Russell Leo Moran, in Nevada. She now lives with
him in California, and, by him, has begotten children. She acquired American citizenship on 8 August 1958.

But on 30 July 1955, Tenchavez had initiated the proceedings at bar by a complaint in the Court of First
Instance of Cebu, and amended on 31 May 1956, against Vicenta F. Escao, her parents, Mamerto and
Mena Escao, whom he charged with having dissuaded and discouraged Vicenta from joining her
husband, and alienating her affections, and against the Roman Catholic Church, for having, through its
Diocesan Tribunal, decreed the annulment of the marriage, and asked for legal separation and one million
pesos in damages. Vicenta claimed a valid divorce from plaintiff and an equally valid marriage to her
present husband, Russell Leo Moran; while her parents denied that they had in any way influenced their
daughter's acts, and counterclaimed for moral damages.

The appealed judgment did not decree a legal separation, but freed the plaintiff from supporting his wife
and to acquire property to the exclusion of his wife. It allowed the counterclaim of Mamerto Escao and
Mena Escao for moral and exemplary damages and attorney's fees against the plaintiff-appellant, to the
extent of P45,000.00, and plaintiff resorted directly to this Court.

The appellant ascribes, as errors of the trial court, the following:

1. In not declaring legal separation; in not holding defendant Vicenta F. Escao liable for damages and in
dismissing the complaint;.

2. In not holding the defendant parents Mamerto Escano and the heirs of Doa Mena Escao liable for
damages;.

3 In holding the plaintiff liable for and requiring him to pay the damages to the defendant parents on their
counterclaims; and.

4. In dismissing the complaint and in denying the relief sought by the plaintiff.

That on 24 February 1948 the plaintiff-appellant, Pastor Tenchavez, and the defendant-appellee, Vicenta
Escao, were validly married to each other, from the standpoint of our civil law, is clearly established by
the record before us. Both parties were then above the age of majority, and otherwise qualified; and both
consented to the marriage, which was performed by a Catholic priest (army chaplain Lavares) in the
presence of competent witnesses. It is nowhere shown that said priest was not duly authorized under civil
law to solemnize marriages.

The chaplain's alleged lack of ecclesiastical authorization from the parish priest and the Ordinary, as
required by Canon law, is irrelevant in our civil law, not only because of the separation of Church and State
but also because Act 3613 of the Philippine Legislature (which was the marriage law in force at the time)
expressly provided that

SEC. 1. Essential requisites. Essential requisites for marriage are the legal capacity of the contracting
parties and consent. (Emphasis supplied)

The actual authority of the solemnizing officer was thus only a formal requirement, and, therefore, not
essential to give the marriage civil effects,3 and this is emphasized by section 27 of said marriage act,
which provided the following:

SEC. 27. Failure to comply with formal requirements. No marriage shall be declared invalid because of the
absence of one or several of the formal requirements of this Act if, when it was performed, the spouses
or one of them believed in good faith that the person who solemnized the marriage was actually
empowered to do so, and that the marriage was perfectly legal.

The good faith of all the parties to the marriage (and hence the validity of their marriage) will be presumed
until the contrary is positively proved (Lao vs. Dee Tim, 45 Phil. 739, 745; Francisco vs. Jason, 60 Phil. 442,
448). It is well to note here that in the case at bar, doubts as to the authority of the solemnizing priest
arose only after the marriage, when Vicenta's parents consulted Father Reynes and the archbishop of
Cebu. Moreover, the very act of Vicenta in abandoning her original action for annulment and subsequently
suing for divorce implies an admission that her marriage to plaintiff was valid and binding.

Defendant Vicenta Escao argues that when she contracted the marriage she was under the undue
influence of Pacita Noel, whom she charges to have been in conspiracy with appellant Tenchavez. Even
granting, for argument's sake, the truth of that contention, and assuming that Vicenta's consent was
vitiated by fraud and undue influence, such vices did not render her marriage ab initio void, but merely
voidable, and the marriage remained valid until annulled by a competent civil court. This was never done,
and admittedly, Vicenta's suit for annulment in the Court of First Instance of Misamis was dismissed for
non-prosecution.

It is equally clear from the record that the valid marriage between Pastor Tenchavez and Vicenta Escao
remained subsisting and undissolved under Philippine law, notwithstanding the decree of absolute
divorce that the wife sought and obtained on 21 October 1950 from the Second Judicial District Court of
Washoe County, State of Nevada, on grounds of "extreme cruelty, entirely mental in character." At the
time the divorce decree was issued, Vicenta Escao, like her husband, was still a Filipino citizen.4 She was
then subject to Philippine law, and Article 15 of the Civil Code of the Philippines (Rep. Act No. 386), already
in force at the time, expressly provided:

Laws relating to family rights and duties or to the status, condition and legal capacity of persons are
binding upon the citizens of the Philippines, even though living abroad.

The Civil Code of the Philippines, now in force, does not admit absolute divorce, quo ad vinculo
matrimonii; and in fact does not even use that term, to further emphasize its restrictive policy on the
matter, in contrast to the preceding legislation that admitted absolute divorce on grounds of adultery of
the wife or concubinage of the husband (Act 2710). Instead of divorce, the present Civil Code only provides
for legal separation (Title IV, Book 1, Arts. 97 to 108), and, even in that case, it expressly prescribes that
"the marriage bonds shall not be severed" (Art. 106, subpar. 1).

For the Philippine courts to recognize and give recognition or effect to a foreign decree of absolute divorce
betiveen Filipino citizens could be a patent violation of the declared public policy of the state, specially in
view of the third paragraph of Article 17 of the Civil Code that prescribes the following:

Prohibitive laws concerning persons, their acts or property, and those which have for their object public
order, policy and good customs, shall not be rendered ineffective by laws or judgments promulgated, or
by determinations or conventions agreed upon in a foreign country.

Even more, the grant of effectivity in this jurisdiction to such foreign divorce decrees would, in effect, give
rise to an irritating and scandalous discrimination in favor of wealthy citizens, to the detriment of those
members of our polity whose means do not permit them to sojourn abroad and obtain absolute divorces
outside the Philippines.

From this point of view, it is irrelevant that appellant Pastor Tenchavez should have appeared in the
Nevada divorce court. Primarily because the policy of our law cannot be nullified by acts of private parties
(Civil Code,Art. 17, jam quot.); and additionally, because the mere appearance of a non-resident consort
cannot confer jurisdiction where the court originally had none (Area vs. Javier, 95 Phil. 579).

From the preceding facts and considerations, there flows as a necessary consequence that in this
jurisdiction Vicenta Escao's divorce and second marriage are not entitled to recognition as valid; for her
previous union to plaintiff Tenchavez must be declared to be existent and undissolved. It follows, likewise,
that her refusal to perform her wifely duties, and her denial of consortium and her desertion of her
husband constitute in law a wrong caused through her fault, for which the husband is entitled to the
corresponding indemnity (Civil Code, Art. 2176). Neither an unsubstantiated charge of deceit nor an
anonymous letter charging immorality against the husband constitute, contrary to her claim, adequate
excuse. Wherefore, her marriage and cohabitation with Russell Leo Moran is technically "intercourse with
a person not her husband" from the standpoint of Philippine Law, and entitles plaintiff-appellant
Tenchavez to a decree of "legal separation under our law, on the basis of adultery" (Revised Penal Code,
Art. 333).

The foregoing conclusions as to the untoward effect of a marriage after an invalid divorce are in accord
with the previous doctrines and rulings of this court on the subject, particularly those that were rendered
under our laws prior to the approval of the absolute divorce act (Act 2710 of the Philippine Legislature).
As a matter of legal history, our statutes did not recognize divorces a vinculo before 1917, when Act 2710
became effective; and the present Civil Code of the Philippines, in disregarding absolute divorces, in effect
merely reverted to the policies on the subject prevailing before Act 2710. The rulings, therefore, under
the Civil Code of 1889, prior to the Act above-mentioned, are now, fully applicable. Of these, the decision
in Ramirez vs. Gmur, 42 Phil. 855, is of particular interest. Said this Court in that case:

As the divorce granted by the French Court must be ignored, it results that the marriage of Dr. Mory and
Leona Castro, celebrated in London in 1905, could not legalize their relations; and the circumstance that
they afterwards passed for husband and wife in Switzerland until her death is wholly without legal
significance. The claims of the very children to participate in the estate of Samuel Bishop must therefore
be rejected. The right to inherit is limited to legitimate, legitimated and acknowledged natural children.
The children of adulterous relations are wholly excluded. The word "descendants" as used in Article 941
of the Civil Code cannot be interpreted to include illegitimates born of adulterous relations. (Emphasis
supplied)

Except for the fact that the successional rights of the children, begotten from Vicenta's marriage to Leo
Moran after the invalid divorce, are not involved in the case at bar, the Gmur case is authority for the
proposition that such union is adulterous in this jurisdiction, and, therefore, justifies an action for legal
separation on the part of the innocent consort of the first marriage, that stands undissolved in Philippine
law. In not so declaring, the trial court committed error.

True it is that our ruling gives rise to anomalous situations where the status of a person (whether divorced
or not) would depend on the territory where the question arises. Anomalies of this kind are not new in
the Philippines, and the answer to them was given in Barretto vs. Gonzales, 58 Phil. 667:

The hardship of the existing divorce laws in the Philippine Islands are well known to the members of the
Legislature. It is the duty of the Courts to enforce the laws of divorce as written by Legislature if they are
constitutional. Courts have no right to say that such laws are too strict or too liberal. (p. 72)

The appellant's first assignment of error is, therefore, sustained.

However, the plaintiff-appellant's charge that his wife's parents, Dr. Mamerto Escao and his wife, the
late Doa Mena Escao, alienated the affections of their daughter and influenced her conduct toward her
husband are not supported by credible evidence. The testimony of Pastor Tenchavez about the Escao's
animosity toward him strikes us to be merely conjecture and exaggeration, and are belied by Pastor's own
letters written before this suit was begun (Exh. "2-Escao" and "Vicenta," Rec. on App., pp. 270-274). In
these letters he expressly apologized to the defendants for "misjudging them" and for the "great
unhappiness" caused by his "impulsive blunders" and "sinful pride," "effrontery and audacity" [sic].
Plaintiff was admitted to the Escao house to visit and court Vicenta, and the record shows nothing to
prove that he would not have been accepted to marry Vicente had he openly asked for her hand, as good
manners and breeding demanded. Even after learning of the clandestine marriage, and despite their shock
at such unexpected event, the parents of Vicenta proposed and arranged that the marriage be
recelebrated in strict conformity with the canons of their religion upon advice that the previous one was
canonically defective. If no recelebration of the marriage ceremony was had it was not due to defendants
Mamerto Escao and his wife, but to the refusal of Vicenta to proceed with it. That the spouses Escao
did not seek to compel or induce their daughter to assent to the recelebration but respected her decision,
or that they abided by her resolve, does not constitute in law an alienation of affections. Neither does the
fact that Vicenta's parents sent her money while she was in the United States; for it was natural that they
should not wish their daughter to live in penury even if they did not concur in her decision to divorce
Tenchavez (27 Am. Jur. 130-132).

There is no evidence that the parents of Vicenta, out of improper motives, aided and abetted her original
suit for annulment, or her subsequent divorce; she appears to have acted independently, and being of
age, she was entitled to judge what was best for her and ask that her decisions be respected. Her parents,
in so doing, certainly cannot be charged with alienation of affections in the absence of malice or unworthy
motives, which have not been shown, good faith being always presumed until the contrary is proved.
SEC. 529. Liability of Parents, Guardians or Kin. The law distinguishes between the right of a parent to
interest himself in the marital affairs of his child and the absence of rights in a stranger to intermeddle in
such affairs. However, such distinction between the liability of parents and that of strangers is only in
regard to what will justify interference. A parent isliable for alienation of affections resulting from his own
malicious conduct, as where he wrongfully entices his son or daughter to leave his or her spouse, but he
is not liable unless he acts maliciously, without justification and from unworthy motives. He is not liable
where he acts and advises his child in good faith with respect to his child's marital relations in the interest
of his child as he sees it, the marriage of his child not terminating his right and liberty to interest himself
in, and be extremely solicitous for, his child's welfare and happiness, even where his conduct and advice
suggest or result in the separation of the spouses or the obtaining of a divorce or annulment, or where he
acts under mistake or misinformation, or where his advice or interference are indiscreet or unfortunate,
although it has been held that the parent is liable for consequences resulting from recklessness. He may
in good faith take his child into his home and afford him or her protection and support, so long as he has
not maliciously enticed his child away, or does not maliciously entice or cause him or her to stay away,
from his or her spouse. This rule has more frequently been applied in the case of advice given to a married
daughter, but it is equally applicable in the case of advice given to a son.

Plaintiff Tenchavez, in falsely charging Vicenta's aged parents with racial or social discrimination and with
having exerted efforts and pressured her to seek annulment and divorce, unquestionably caused them
unrest and anxiety, entitling them to recover damages. While this suit may not have been impelled by
actual malice, the charges were certainly reckless in the face of the proven facts and circumstances. Court
actions are not established for parties to give vent to their prejudices or spleen.

In the assessment of the moral damages recoverable by appellant Pastor Tenchavez from defendant
Vicente Escao, it is proper to take into account, against his patently unreasonable claim for a million
pesos in damages, that (a) the marriage was celebrated in secret, and its failure was not characterized by
publicity or undue humiliation on appellant's part; (b) that the parties never lived together; and (c) that
there is evidence that appellant had originally agreed to the annulment of the marriage, although such a
promise was legally invalid, being against public policy (cf. Art. 88, Civ. Code). While appellant is unable to
remarry under our law, this fact is a consequence of the indissoluble character of the union that appellant
entered into voluntarily and with open eyes rather than of her divorce and her second marriage. All told,
we are of the opinion that appellant should recover P25,000 only by way of moral damages and attorney's
fees.

With regard to the P45,000 damages awarded to the defendants, Dr. Mamerto Escao and Mena Escao,
by the court below, we opine that the same are excessive. While the filing of this unfounded suit must
have wounded said defendants' feelings and caused them anxiety, the same could in no way have
seriously injured their reputation, or otherwise prejudiced them, lawsuits having become a common
occurrence in present society. What is important, and has been correctly established in the decision of
the court below, is that said defendants were not guilty of any improper conduct in the whole deplorable
affair. This Court, therefore, reduces the damages awarded to P5,000 only.

Summing up, the Court rules:

(1) That a foreign divorce between Filipino citizens, sought and decreed after the effectivity of the present
Civil Code (Rep. Act 386), is not entitled to recognition as valid in this jurisdiction; and neither is the
marriage contracted with another party by the divorced consort, subsequently to the foreign decree of
divorce, entitled to validity in the country;

(2) That the remarriage of divorced wife and her co-habitation with a person other than the lawful
husband entitle the latter to a decree of legal separation conformably to Philippine law;

(3) That the desertion and securing of an invalid divorce decree by one consort entitles the other to
recover damages;

(4) That an action for alienation of affections against the parents of one consort does not lie in the absence
of proof of malice or unworthy motives on their part.

WHEREFORE, the decision under appeal is hereby modified as follows;

(1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a decree of legal separation from defendant
Vicenta F. Escao;

(2) Sentencing defendant-appellee Vicenta Escao to pay plaintiff-appellant Tenchavez the amount of
P25,000 for damages and attorneys' fees;

(3) Sentencing appellant Pastor Tenchavez to pay the appellee, Mamerto Escao and the estate of his
wife, the deceased Mena Escao, P5,000 by way of damages and attorneys' fees.

Neither party to recover costs.

5. G.R. No. L-68470 October 8, 1985

ALICE REYES VAN DORN, petitioner,

vs.
HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX, Regional Trial Court of the National
Capital Region Pasay City and RICHARD UPTON respondents.

MELENCIO-HERRERA, J.:\

In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set aside the Orders,
dated September 15, 1983 and August 3, 1984, in Civil Case No. 1075-P, issued by respondent Judge,
which denied her Motion to Dismiss said case, and her Motion for Reconsideration of the Dismissal Order,
respectively.

The basic background facts are that petitioner is a citizen of the Philippines while private respondent is a
citizen of the United States; that they were married in Hongkong in 1972; that, after the marriage, they
established their residence in the Philippines; that they begot two children born on April 4, 1973 and
December 18, 1975, respectively; that the parties were divorced in Nevada, United States, in 1982; and
that petitioner has re-married also in Nevada, this time to Theodore Van Dorn.

Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No. 1075-P of the Regional
Trial Court, Branch CXV, in Pasay City, stating that petitioner's business in Ermita, Manila, (the Galleon
Shop, for short), is conjugal property of the parties, and asking that petitioner be ordered to render an
accounting of that business, and that private respondent be declared with right to manage the conjugal
property. Petitioner moved to dismiss the case on the ground that the cause of action is barred by previous
judgment in the divorce proceedings before the Nevada Court wherein respondent had acknowledged
that he and petitioner had "no community property" as of June 11, 1982. The Court below denied the
Motion to Dismiss in the mentioned case on the ground that the property involved is located in the
Philippines so that the Divorce Decree has no bearing in the case. The denial is now the subject of this
certiorari proceeding.

Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not subject to appeal.
certiorari and Prohibition are neither the remedies to question the propriety of an interlocutory order of
the trial Court. However, when a grave abuse of discretion was patently committed, or the lower Court
acted capriciously and whimsically, then it devolves upon this Court in a certiorari proceeding to exercise
its supervisory authority and to correct the error committed which, in such a case, is equivalent to lack of
jurisdiction. 1 Prohibition would then lie since it would be useless and a waste of time to go ahead with
the proceedings. 2 Weconsider the petition filed in this case within the exception, and we have given it
due course.

For resolution is the effect of the foreign divorce on the parties and their alleged conjugal property in the
Philippines.

Petitioner contends that respondent is estopped from laying claim on the alleged conjugal property
because of the representation he made in the divorce proceedings before the American Court that they
had no community of property; that the Galleon Shop was not established through conjugal funds, and
that respondent's claim is barred by prior judgment.

For his part, respondent avers that the Divorce Decree issued by the Nevada Court cannot prevail over
the prohibitive laws of the Philippines and its declared national policy; that the acts and declaration of a
foreign Court cannot, especially if the same is contrary to public policy, divest Philippine Courts of
jurisdiction to entertain matters within its jurisdiction.

For the resolution of this case, it is not necessary to determine whether the property relations between
petitioner and private respondent, after their marriage, were upon absolute or relative community
property, upon complete separation of property, or upon any other regime. The pivotal fact in this case is
the Nevada divorce of the parties.

The Nevada District Court, which decreed the divorce, had obtained jurisdiction over petitioner who
appeared in person before the Court during the trial of the case. It also obtained jurisdiction over private
respondent who, giving his address as No. 381 Bush Street, San Francisco, California, authorized his
attorneys in the divorce case, Karp & Gradt Ltd., to agree to the divorce on the ground of incompatibility
in the understanding that there were neither community property nor community obligations. 3 As
explicitly stated in the Power of Attorney he executed in favor of the law firm of KARP & GRAD LTD., 336
W. Liberty, Reno, Nevada, to represent him in the divorce proceedings:

xxx xxx xxx

You are hereby authorized to accept service of Summons, to file an Answer, appear on my behalf and do
an things necessary and proper to represent me, without further contesting, subject to the following:

1. That my spouse seeks a divorce on the ground of incompatibility.

2. That there is no community of property to be adjudicated by the Court.

3. 'I'hat there are no community obligations to be adjudicated by the court.

xxx xxx xxx 4

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

It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, 5 only Philippine
nationals are covered by the policy against absolute divorces the same being considered contrary to our
concept of public police and morality. However, aliens may obtain divorces abroad, which may be
recognized in the Philippines, provided they are valid according to their national law. 6 In this case, the
divorce in Nevada released private respondent from the marriage from the standards of American law,
under which divorce dissolves the marriage. As stated by the Federal Supreme Court of the United States
in Atherton vs. Atherton, 45 L. Ed. 794, 799:

The purpose and effect of a decree of divorce from the bond of matrimony by a court of competent
jurisdiction are to change the existing status or domestic relation of husband and wife, and to free them
both from the bond. The marriage tie when thus severed as to one party, ceases to bind either. A husband
without a wife, or a wife without a husband, is unknown to the law. When the law provides, in the nature
of a penalty. that the guilty party shall not marry again, that party, as well as the other, is still absolutely
freed from the bond of the former marriage.

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

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

WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to dismiss the Complaint
filed in Civil Case No. 1075-P of his Court.

Without costs.

SO ORDERED.

Van Dorn vs. Romillo Jr. 139 SCRA 139

October 8, 1985
Fact of the Case:

Petitioner Alicia Reyes Van is citizen of the Philippines while private respondentRichard Upton is a citizen
of the United States, were married on 1972 at Hongkong. On1982, they got divorced in Nevada, United
States; and the petitioner remarried toTheodore Van Dorn.

On July 8, 1983, private respondent filed suit against petitioner, asking that thepetitioner be ordered to
render an accounting of her business in Ermita, Manila, and bedeclared with right to manage the conjugal
property. Petitioner moved to dismiss the caseon the ground that the cause of action is barred by previous
judgement in the divorceproceeding before Nevada Court where respondent acknowledged that they had
nocommunity property. The lower court denied the motion to dismiss on the ground that theproperty
involved is located in the Philippines, that the Divorce Decree has no bearing inthe case. Respondent avers
that Divorce Decree abroad cannot prevail over theprohibitive laws of the Philippines.

Issue:

(1)Whether or not the divorce obtained the spouse valid to each of them.

(2)Whether or not Richard Upton may assert his right on conjugal properties.

Held:

As to Richard Upton the divorce is binding on him as an American Citizen.As heis bound by the Decision
of his own countrys Court, which validly exercised jurisdictionover him, and whose decision he does not
repudiate, he is estopped by his ownrepresentation before said Court from asserting his right over the
alleged conjugalproperty. Only Philippine Nationals are covered by the policy against absolute divorcethe
same being considered contrary to our concept of public policy and morality. AliciaReyes under our
National law is still considered married to private respondent. However,petitioner should not be obliged
to live together with, observe respect and fidelity, andrender support to private respondent. The latter
should not continue to be one of her heirswith possible rights to conjugal property. She should not be
discriminated against herown country if the ends of justice are to be served.

6. G.R. No. 80116 June 30, 1989

IMELDA MANALAYSAY PILAPIL, petitioner,

vs.
HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of the Regional Trial Court of Manila,
Branch XXVI; HON. LUIS C. VICTOR, in his capacity as the City Fiscal of Manila; and ERICH EKKEHARD
GEILING, respondents.

REGALADO, J.:

An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute divorce, only to be
followed by a criminal infidelity suit of the latter against the former, provides Us the opportunity to lay
down a decisional rule on what hitherto appears to be an unresolved jurisdictional question.

On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and private respondent
Erich Ekkehard Geiling, a German national, were married before the Registrar of Births, Marriages and
Deaths at Friedensweiler in the Federal Republic of Germany. The marriage started auspiciously enough,
and the couple lived together for some time in Malate, Manila where their only child, Isabella Pilapil
Geiling, was born on April 20, 1980. 1

Thereafter, marital discord set in, with mutual recriminations between the spouses, followed by a
separation de facto between them.

After about three and a half years of marriage, such connubial disharmony eventuated in private
respondent initiating a divorce proceeding against petitioner in Germany before the Schoneberg Local
Court in January, 1983. He claimed that there was failure of their marriage and that they had been living
apart since April, 1982. 2

Petitioner, on the other hand, filed an action for legal separation, support and separation of property
before the Regional Trial Court of Manila, Branch XXXII, on January 23, 1983 where the same is still
pending as Civil Case No. 83-15866. 3

On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of Germany,
promulgated a decree of divorce on the ground of failure of marriage of the spouses. The custody of the
child was granted to petitioner. The records show that under German law said court was locally and
internationally competent for the divorce proceeding and that the dissolution of said marriage was legally
founded on and authorized by the applicable law of that foreign jurisdiction. 4

On June 27, 1986, or more than five months after the issuance of the divorce decree, private respondent
filed two complaints for adultery before the City Fiscal of Manila alleging that, while still married to said
respondent, petitioner "had an affair with a certain William Chia as early as 1982 and with yet another
man named Jesus Chua sometime in 1983". Assistant Fiscal Jacinto A. de los Reyes, Jr., after the
corresponding investigation, recommended the dismissal of the cases on the ground of insufficiency of
evidence. 5 However, upon review, the respondent city fiscal approved a resolution, dated January 8,
1986, directing the filing of two complaints for adultery against the petitioner. 6 The complaints were
accordingly filed and were eventually raffled to two branches of the Regional Trial Court of Manila. The
case entitled "People of the Philippines vs. Imelda Pilapil and William Chia", docketed as Criminal Case No.
87-52435, was assigned to Branch XXVI presided by the respondent judge; while the other case, "People
of the Philippines vs. Imelda Pilapil and James Chua", docketed as Criminal Case No. 87-52434 went to the
sala of Judge Leonardo Cruz, Branch XXV, of the same court. 7

On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that the aforesaid
resolution of respondent fiscal be set aside and the cases against her be dismissed. 8 A similar petition
was filed by James Chua, her co-accused in Criminal Case No. 87-52434. The Secretary of Justice, through
the Chief State Prosecutor, gave due course to both petitions and directed the respondent city fiscal to
inform the Department of Justice "if the accused have already been arraigned and if not yet arraigned, to
move to defer further proceedings" and to elevate the entire records of both cases to his office for
review. 9

Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and to suspend further
proceedings thereon. 10 As a consequence, Judge Leonardo Cruz suspended proceedings in Criminal Case
No. 87-52434. On the other hand, respondent judge merely reset the date of the arraignment in Criminal
Case No. 87-52435 to April 6, 1987. Before such scheduled date, petitioner moved for the cancellation of
the arraignment and for the suspension of proceedings in said Criminal Case No. 87-52435 until after the
resolution of the petition for review then pending before the Secretary of Justice. 11 A motion to quash
was also filed in the same case on the ground of lack of jurisdiction, 12 which motion was denied by the
respondent judge in an order dated September 8, 1987. The same order also directed the arraignment of
both accused therein, that is, petitioner and William Chia. The latter entered a plea of not guilty while the
petitioner refused to be arraigned. Such refusal of the petitioner being considered by respondent judge
as direct contempt, she and her counsel were fined and the former was ordered detained until she
submitted herself for arraignment. 13 Later, private respondent entered a plea of not guilty. 14

On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition, with a prayer
for a temporary restraining order, seeking the annulment of the order of the lower court denying her
motion to quash. The petition is anchored on the main ground that the court is without jurisdiction "to
try and decide the charge of adultery, which is a private offense that cannot be prosecuted de officio (sic),
since the purported complainant, a foreigner, does not qualify as an offended spouse having obtained a
final divorce decree under his national law prior to his filing the criminal complaint." 15

On October 21, 1987, this Court issued a temporary restraining order enjoining the respondents from
implementing the aforesaid order of September 8, 1987 and from further proceeding with Criminal Case
No. 87-52435. Subsequently, on March 23, 1988 Secretary of Justice Sedfrey A. Ordoez acted on the
aforesaid petitions for review and, upholding petitioner's ratiocinations, issued a resolution directing the
respondent city fiscal to move for the dismissal of the complaints against the petitioner. 16

We find this petition meritorious. The writs prayed for shall accordingly issue.

Under Article 344 of the Revised Penal Code, 17 the crime of adultery, as well as four other crimes against
chastity, cannot be prosecuted except upon a sworn written complaint filed by the offended spouse. It
has long since been established, with unwavering consistency, that compliance with this rule is a
jurisdictional, and not merely a formal, requirement. 18 While in point of strict law the jurisdiction of the
court over the offense is vested in it by the Judiciary Law, the requirement for a sworn written complaint
is just as jurisdictional a mandate since it is that complaint which starts the prosecutory proceeding 19 and
without which the court cannot exercise its jurisdiction to try the case.

Now, the law specifically provides that in prosecutions for adultery and concubinage the person who can
legally file the complaint should be the offended spouse, and nobody else. Unlike the offenses of
seduction, abduction, rape and acts of lasciviousness, no provision is made for the prosecution of the
crimes of adultery and concubinage by the parents, grandparents or guardian of the offended party. The
so-called exclusive and successive rule in the prosecution of the first four offenses above mentioned do
not apply to adultery and concubinage. It is significant that while the State, as parens patriae, was added
and vested by the 1985 Rules of Criminal Procedure with the power to initiate the criminal action for a
deceased or incapacitated victim in the aforesaid offenses of seduction, abduction, rape and acts of
lasciviousness, in default of her parents, grandparents or guardian, such amendment did not include the
crimes of adultery and concubinage. In other words, only the offended spouse, and no other, is authorized
by law to initiate the action therefor.

Corollary to such exclusive grant of power to the offended spouse to institute the action, it necessarily
follows that such initiator must have the status, capacity or legal representation to do so at the time of
the filing of the criminal action. This is a familiar and express rule in civil actions; in fact, lack of legal
capacity to sue, as a ground for a motion to dismiss in civil cases, is determined as of the filing of the
complaint or petition.

The absence of an equivalent explicit rule in the prosecution of criminal cases does not mean that the
same requirement and rationale would not apply. Understandably, it may not have been found necessary
since criminal actions are generally and fundamentally commenced by the State, through the People of
the Philippines, the offended party being merely the complaining witness therein. However, in the so-
called "private crimes" or those which cannot be prosecuted de oficio, and the present prosecution for
adultery is of such genre, the offended spouse assumes a more predominant role since the right to
commence the action, or to refrain therefrom, is a matter exclusively within his power and option.

This policy was adopted out of consideration for the aggrieved party who might prefer to suffer the
outrage in silence rather than go through the scandal of a public trial. 20 Hence, as cogently argued by
petitioner, Article 344 of the Revised Penal Code thus presupposes that the marital relationship is still
subsisting at the time of the institution of the criminal action for, adultery. This is a logical consequence
since the raison d'etre of said provision of law would be absent where the supposed offended party had
ceased to be the spouse of the alleged offender at the time of the filing of the criminal case. 21

In these cases, therefore, it is indispensable that the status and capacity of the complainant to commence
the action be definitely established and, as already demonstrated, such status or capacity must
indubitably exist as of the time he initiates the action. It would be absurd if his capacity to bring the action
would be determined by his status beforeor subsequent to the commencement thereof, where such
capacity or status existed prior to but ceased before, or was acquired subsequent to but did not exist at
the time of, the institution of the case. We would thereby have the anomalous spectacle of a party
bringing suit at the very time when he is without the legal capacity to do so.

To repeat, there does not appear to be any local precedential jurisprudence on the specific issue as to
when precisely the status of a complainant as an offended spouse must exist where a criminal prosecution
can be commenced only by one who in law can be categorized as possessed of such status. Stated
differently and with reference to the present case, the inquiry ;would be whether it is necessary in the
commencement of a criminal action for adultery that the marital bonds between the complainant and the
accused be unsevered and existing at the time of the institution of the action by the former against the
latter.

American jurisprudence, on cases involving statutes in that jurisdiction which are in pari materia with
ours, yields the rule that after a divorce has been decreed, the innocent spouse no longer has the right to
institute proceedings against the offenders where the statute provides that the innocent spouse shall
have the exclusive right to institute a prosecution for adultery. Where, however, proceedings have been
properly commenced, a divorce subsequently granted can have no legal effect on the prosecution of the
criminal proceedings to a conclusion. 22

In the cited Loftus case, the Supreme Court of Iowa held that

'No prosecution for adultery can be commenced except on the complaint of the husband or wife.' Section
4932, Code. Though Loftus was husband of defendant when the offense is said to have been committed,
he had ceased to be such when the prosecution was begun; and appellant insists that his status was not
such as to entitle him to make the complaint. We have repeatedly said that the offense is against the
unoffending spouse, as well as the state, in explaining the reason for this provision in the statute; and we
are of the opinion that the unoffending spouse must be such when the prosecution is commenced.
(Emphasis supplied.)

We see no reason why the same doctrinal rule should not apply in this case and in our jurisdiction,
considering our statutory law and jural policy on the matter. We are convinced that in cases of such
nature, the status of the complainant vis-a-vis the accused must be determined as of the time the
complaint was filed. Thus, the person who initiates the adultery case must be an offended spouse, and by
this is meant that he is still married to the accused spouse, at the time of the filing of the complaint.

In the present case, the fact that private respondent obtained a valid divorce in his country, the Federal
Republic of Germany, is admitted. Said divorce and its legal effects may be recognized in the Philippines
insofar as private respondent is concerned 23 in view of the nationality principle in our civil law on the
matter of status of persons.

Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al., 24 after a divorce was granted by a United
States court between Alice Van Dornja Filipina, and her American husband, the latter filed a civil case in a
trial court here alleging that her business concern was conjugal property and praying that she be ordered
to render an accounting and that the plaintiff be granted the right to manage the business. Rejecting his
pretensions, this Court perspicuously demonstrated the error of such stance, thus:

There can be no question as to the validity of that Nevada divorce in any of the States of the United States.
The decree is binding on private respondent as an American citizen. For instance, private respondent
cannot sue petitioner, as her husband, in any State of the Union. ...

It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine
nationals are covered by the policy against absolute divorces the same being considered contrary to our
concept of public policy and morality. However, aliens may obtain divorces abroad, which may be
recognized in the Philippines, provided they are valid according to their national law. ...

Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would
have no standing to sue in the case below as petitioner's husband entitled to exercise control over
conjugal assets. ... 25

Under the same considerations and rationale, private respondent, being no longer the husband of
petitioner, had no legal standing to commence the adultery case under the imposture that he was the
offended spouse at the time he filed suit.

The allegation of private respondent that he could not have brought this case before the decree of divorce
for lack of knowledge, even if true, is of no legal significance or consequence in this case. When said
respondent initiated the divorce proceeding, he obviously knew that there would no longer be a family
nor marriage vows to protect once a dissolution of the marriage is decreed. Neither would there be a
danger of introducing spurious heirs into the family, which is said to be one of the reasons for the
particular formulation of our law on adultery, 26 since there would thenceforth be no spousal relationship
to speak of. 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.
The aforecited case of United States vs. Mata cannot be successfully relied upon by private respondent.
In applying Article 433 of the old Penal Code, substantially the same as Article 333 of the Revised Penal
Code, which punished adultery "although the marriage be afterwards declared void", the Court merely
stated that "the lawmakers intended to declare adulterous the infidelity of a married woman to her
marital vows, even though it should be made to appear that she is entitled to have her marriage contract
declared null and void, until and unless she actually secures a formal judicial declaration to that effect".
Definitely, it cannot be logically inferred therefrom that the complaint can still be filed after the
declaration of nullity because such declaration that the marriage is void ab initio is equivalent to stating
that it never existed. There being no marriage from the beginning, any complaint for adultery filed after
said declaration of nullity would no longer have a leg to stand on. Moreover, what was consequently
contemplated and within the purview of the decision in said case is the situation where the criminal action
for adultery was filed beforethe termination of the marriage by a judicial declaration of its nullity ab initio.
The same rule and requisite would necessarily apply where the termination of the marriage was effected,
as in this case, by a valid foreign divorce.

Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore cited, 27 must suffer the
same fate of inapplicability. A cursory reading of said case reveals that the offended spouse therein had
duly and seasonably filed a complaint for adultery, although an issue was raised as to its sufficiency but
which was resolved in favor of the complainant. Said case did not involve a factual situation akin to the
one at bar or any issue determinative of the controversy herein.

WHEREFORE, the questioned order denying petitioner's motion to quash is SET ASIDE and another one
entered DISMISSING the complaint in Criminal Case No. 87-52435 for lack of jurisdiction. The temporary
restraining order issued in this case on October 21, 1987 is hereby made permanent.

SO ORDERED.

7. [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[1] and the March 24, 1999 Order[2] 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.[3]

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

The Facts

Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in Malabon, Rizal, on
March 1, 1987.[4] They lived together as husband and wife in Australia. On May 18, 1989, [5] a decree of
divorce, purportedly dissolving the marriage, was issued by an Australian family court.

On June 26, 1992, respondent became an Australian citizen, as shown by a Certificate of Australian
Citizenship issued by the Australian government.[6] Petitioner -- a Filipina -- and respondent were married
on January 12, 1994 in Our Lady of Perpetual Help Church in Cabanatuan City.[7] In their application for a
marriage license, respondent was declared as single and Filipino.[8]

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

On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage[10] in the court a
quo, on the ground of bigamy -- respondent allegedly had a prior subsisting marriage at the time he
married her on January 12, 1994. She claimed that she learned of 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.[11] He contended that his first marriage to an Australian citizen
had been validly dissolved by a divorce decree obtained in Australia in 1989;[12] 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.[13]

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

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

Ruling of the Trial Court

The trial court declared the marriage dissolved on the ground that the divorce issued in Australia was valid
and recognized in the Philippines. It deemed the marriage ended, but not on the basis of any defect in an
essential element of the marriage; that is, 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.[18]

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.

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.[19]

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

The 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,[20] petitioner argues that the divorce decree, like any other
foreign judgment, may be given recognition in this jurisdiction only upon proof of the existence of (1) the
foreign law allowing absolute divorce and (2) the alleged divorce decree itself. She adds that respondent
miserably failed to establish these elements.

Petitioner adds that, based on the first paragraph of Article 26 of the Family Code, marriages solemnized
abroad are governed by the law of the place where they were celebrated (the lex loci 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.[21] A marriage between two
Filipinos cannot be dissolved even by a divorce obtained abroad, because of Articles 15[22] and 17[23] of
the Civil Code.[24] In mixed marriages involving a Filipino and a foreigner, Article 26[25] of the Family
Code allows the former to contract a subsequent marriage in case the divorce is validly obtained abroad
by the alien spouse capacitating him or her to remarry.[26] A divorce obtained abroad by a couple, who
are both aliens, may be recognized in the Philippines, provided it is consistent with their respective
national laws.[27]

A comparison between marriage and divorce, as far as pleading and proof are concerned, can be
made. Van Dorn v. Romillo Jr. decrees that aliens may obtain divorces abroad, which may be recognized
in the Philippines, provided they are valid according to their national law.[28] Therefore, before a foreign
divorce decree can be recognized by our courts, the party pleading it must prove the divorce as a fact and
demonstrate its conformity to the foreign law allowing it.[29] Presentation solely of the divorce decree is
insufficient.

Divorce as a Question of Fact

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

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

xxxxxxxxx

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

xxxxxxxxx

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.[30] A divorce obtained abroad is proven
by the divorce decree itself. Indeed the best evidence of a judgment is the judgment itself.[31] The decree
purports to be a written act or record of an act of an official body or tribunal of a foreign country.[32]

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

The divorce decree between respondent and Editha Samson appears to be an authentic one issued by an
Australian family court.[35] However, appearance is not sufficient; compliance with the 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.[36] The trial court ruled that it was admissible, subject to
petitioners qualification.[37] 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.[38]

Compliance with the quoted articles (11, 13 and 52) of the Family Code is not necessary; respondent was
no longer bound by Philippine personal laws after he acquired Australian citizenship in
1992.[39]Naturalization is the legal act of adopting an alien and clothing him with the political and civil
rights belonging to a citizen.[40] Naturalized citizens, freed from the protective cloak of their former
states, don the attires of their adoptive countries. By becoming an Australian, respondent severed his
allegiance to the Philippines and the vinculum juris that had tied him to Philippine personal laws.

Burden of Proving Australian Law

Respondent contends that the burden to prove Australian divorce law falls upon petitioner, because she
is the party challenging the validity of a foreign judgment. He contends that petitioner was satisfied with
the original of the divorce decree and was cognizant of the marital laws of Australia, because she had lived
and worked in that country for quite a long time. Besides, the Australian divorce law is allegedly known
by Philippine courts; thus, judges may take judicial notice of foreign laws in the exercise of sound
discretion.

We are not persuaded. The burden of proof lies with the party who alleges the existence of a fact or thing
necessary in the prosecution or defense of an action.[41] In civil cases, plaintiffs have the burden of
proving the material allegations of the complaint when those are denied by the answer; and defendants
have the burden of proving the material allegations in their answer when they introduce new
matters.[42] Since the divorce was a defense raised by respondent, the burden of proving the pertinent
Australian law validating it falls squarely upon him.

It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws.[43] Like any
other facts, they must be alleged and proved. Australian marital laws are not among those matters that
judges are supposed to know by reason of their judicial function.[44] The power of judicial notice must be
exercised with caution, and every reasonable doubt upon the subject should be resolved in the negative.

Second Issue: 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.[45] There is no
showing in the case at bar which type of divorce was procured by respondent.

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

divorce. It is in effect the same as a separation from bed and board, although an absolute divorce may
follow after the lapse of the prescribed period during which no reconciliation is effected.[46]

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

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

1. A party to a marriage who marries again before this decree becomes absolute (unless the other party
has died) commits the offence of bigamy.[48]

This quotation bolsters our contention that the divorce obtained by respondent may have been
restricted. It did not absolutely establish his legal capacity to remarry according to his national law. Hence,
we find no basis for the ruling of the trial court, which erroneously assumed that the Australian
divorce ipso facto restored 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[49] of the Rules of Court, for the
simple reason that no proof has been presented on the legal effects of the divorce decree obtained under
Australian laws.

Significance of the Certificate of Legal Capacity

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

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

As it is, however, there is absolutely no evidence that proves 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;[51] (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;[52] (c) Exhibit C Certificate of Marriage Between Rederick A. Recio (Filipino)
and Editha D. Samson (Australian) on March 1, 1987 in Malabon, Metro Manila;[53] (d) Exhibit D Office of
the City Registrar of Cabanatuan City Certification that no information of annulment between Rederick A.
Recio and Editha D. Samson was in its records;[54] and (e) Exhibit E Certificate of Australian Citizenship of
Rederick A. Recio;[55] (2) for respondent: (a) Exhibit 1 -- Amended Answer;[56] (b) Exhibit 2 Family Law
Act 1975 Decree Nisi of Dissolution of Marriage in the Family Court of Australia;[57] (c) Exhibit 3 Certificate
of Australian Citizenship of Rederick A. Recio;[58] (d) Exhibit 4 Decree Nisi of Dissolution of Marriage in
the Family Court of Australia Certificate;[59] and Exhibit 5 -- Statutory Declaration of the Legal Separation
Between Rederick A. Recio and Grace J. Garcia Recio since October 22, 1995.[60]

Based on the above records, we cannot conclude that respondent, who was then a naturalized Australian
citizen, was legally capacitated to marry petitioner on January 12, 1994. We agree with 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.

8. 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.

xxx xxx xxx

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.

9. G.R. No. L-861 September 30, 1947

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANGEL ZAPANTA Y TUAZON, defendant-appellant.

Quijano, Rosete and Tizon for appellant.

Assistant Solicitor General Carmelino G. Alvendia and Solicitor Isidro C. Borromeo for appellee.

BENGZON, J.:

At about midnight of September 15, 1945, the accused Angel Zapanta y Tuazon and one Antero Gomez
proceeded to the house of Policarpio Salazar on Francisco Street, Tondo, Manila. Gomez removed the
bamboo pole that barred the gate, and both climbed the stairs, and knocked at the door of the dwelling.
Answering a question of Policarpio's wife, one of the nocturnal visitors falsely identifying as "Maning"
requested admittance pretending that he wanted "to tell something" to her husband. As the door was
opened, the two entered, pistol in hand, and then the accused pointing his gun at Salazar asked, "Are you
Totoy Kalabaw?" (nickname of Salazar). The next instant Salazar and the accused were grappling for the
possession of the firearm. At this moment Gomez shot Salazar to death. Thereafter both assailants
hurriedly fled.

Police officers subsequently investigating the affair were handed the gun which had fallen from the hands
of the accused in the scuffle, he having forgotten to retrieve it in his flight from the scene of the shooting.

It was later discovered, upon investigation, that two days before the fatal incident Antero Gomez,
informing the accused that he had a quarrel with Salazar, asked for assistance to kill him; and the accused
agreed to help.

Antero Gomez was not prosecuted because he died before the presentation of the information, he having
been reportedly killed in an affray with the police.

Hailed into court for murder and confronted with the evidence of the People above related, the
defendant-appellant Angel Zapanta y Tuazon attempted to prove an alibi with his lone testimony, which
the trial judge discredited, obviously because, (1) it was uncorroborated, (2) for all his youth, the prisoner
was a confirmed lawbreaker (See footnote)* and (3) because he was positively identified by an
eyewitness, the wife of the deceased, Ponciana Isidro, and her assertions were backed by the finding of
appellant's gun in the house and by the latter's confession, Exhibits C and Q.

Appellant's counsel sensibly abstain from insisting on that defense; but in their carefully prepared brief,
they discuss several errors allegedly committed by His Honor, to wit: (a) in holding there was conspiracy
between appellant and Antero Gomez; (b) in ruling that Zapanta was duly identified and (c) in considering
the latter's confession.

In criminal cases the identification of the culprit has always has been a paramount question. Several
instances of miscarriage of justice on that score are known in judicial annals. Therefore, judges can not be
overly cautious in analyzing evidence on the point. On the other hand, where conditions of visibility are
favorable and the witness does not appear to be based against the man on the dock, his or her assertions
as to the identity of the malefactor should normally be accepted. And this is more so where the witness
is the victim or his near-relative as in this case, because these usually strive to remember the factions of
the assailants. In this expediente no reasons exist to question the veracity of the bereaved widow, and it
is admitted that a kerosene lamp lighted the place. Hence, considering the confessions of appellant in
Exhibits C and Q, he should be deemed sufficiently identified.

It is true that, as contended by counsel, the herein accused would not be responsible for the murder, in
the absence or conspiracy between him and Gomez (who actually did the killing). But unluckily for him,
such conspiracy was established by proof that he had agreed to help Gomez assassinate Salazar, that both
at midnight repaired to the house, tricked the inmates into opening the door, and rushed inside with
drawn pistols, almost immediately eliminating the surprised "kalabaw". There was concerted action, and
the common homicidal intent was unmistakable, from which solidary criminal responsibility arose.1

The record discloses that when in custody of the police, herein appellant made the following admissions
of guilt:

Two days before Totoy Kalabaw was shot by Antero Gomez, Antero told me that he and Totoy Kalabaw
had a quarrel. Antero told me to go with him and kill Totoy Kalabaw and I agreed. Antero and I were both
armed with .45 Cal. automatic pistols when we proceeded to the house of Totoy Kalabaw. When we
arrived at Totoy Kalabaw's house, we found the gate closed and a bamboo bar was slung across the gate.
Antero picked up the bamboo bar and placed it near the gate. We then climbed up the stairs of the house.
Antero knocked several times on the door and after ten (10) minutes a woman opened it. Antero drew
his gun when he entered the door and I followed him. We saw Totoy Kalabaw as soon as we entered
standing beside the woman who opened the door and when I went near him, he suddenly grabbed me by
the arms and tried to get my pistol at my waist. He tried to grab for my gun and was able to wrest it away
from me but at this time Antero shot him. We then run down the house and fled, in our haste to get away
I left my .45 automatic pistol at the place where Totoy Kalabaw fell. (Exhibit C.)

I together with Antero Gomez went to the house of Totoy Kalabaw and when his wife opened the door, I
drew my pistol from my waist but before I was able to do so, Totoy Kalabaw grappled with me and we
wrestled for the possession of the pistol. I was hit then by the pistol on my right index finger. Antero
Gomez, seeing that Totoy Kalabaw had the edge on me, shot at Totoy Kalabaw about two times as I
remember. (Exhibit Q.)

Contending that the trial judge erred in considering this confession, appellant's counsel do not assert it
was obtained through violence or fraud. They merely claim that it contains improbabilities, and should
therefore be disregarded. But mere improbability should yield to actual facts told by the accused himself.
If the confession was voluntarily signed there was evidence to that effect the appellant should not
be heard to impugn the events therein described on grounds of improbability, because he would thereby
be saying: "that is my story, but do not believe it because I lied."

The offense charged was murder. The facts proved established it, the destruction of Salazar's life having
been accomplished with evident premeditation (article 248, Revised Penal Code). Although there are the
aggravating circumstances of nighttime and dwelling, the penalty imposable is reclusion perpetua only, in
view of the dissent of some members of this Court (article 47, Revised Penal Code.) Consequently, the
judgment of the court below is affirmed, it being in accordance with the law for such cases made and
provided.

10. G.R. No. 79284 November 27, 1987

FROILAN C. GANDIONCO, petitioner,
vs.
HON. SENEN C. PEARANDA, as Presiding Judge of the Regional Trial Court of Misamis Oriental, Branch
18, Cagayan de Oro City, and TERESITA S. GANDIONCO, respondents.

PADILLA, J.:

A special civil action for certiorari, with application for injunction, to annul (1) the Order of the respondent
Judge, dated 10 December 1986, ordering petitioner to pay support pendente lite to private respondent
(his wife) and their child, and (2) the Order of the same respondent Judge, dated 5 August 1987, denying
petitioner's motion to suspend hearings in the action for legal separation filed against him by private
respondent as well as his motion to inhibit respondent Judge from further hearing and trying the case.

On 29 May 1986, private respondent, the legal wife of the petitioner, filed with the Regional Trial Court
of Misamis Oriental, 10th Judicial District, Branch 18, in Cagayan de Oro City, presided over by respondent
Judge, a complaint against petitioner for legal separation, on the ground of concubinage, with a petition
for support and payment of damages. This case was docketed as Civil Case No. 10636. On 13 October
1986, private respondent also filed with the Municipal Trial Court, General Santos City, a complaint against
petitioner for concubinage, which was docketed on 23 October 1986 as Criminal Case No. 15437111. On
14 November 1986, application for the provisional remedy of support pendente lite, pending a decision
in the action for legal separation, was filed by private respondent in the civil case for legal separation. The
respondent judge, as already stated, on 10 December 1986, ordered The payment of support pendente
lite.

In this recourse, petitioner contends that the civil action for legal separation and the incidents consequent
thereto, such as, application for support pendente lite, should be suspended in view of the criminal case
for concubinage filed against him the private respondent. In support of his contention, petitioner cites
Art. III. Sec. 3 of the 1985 Rules on Criminal Procedure, which states:

SEC. 3. Other Civil action arising from offenses. Whenever the offended party shall have instituted the
civil action to enforce the civil liability arising from the offense. as contemplated in the first Section 1
hereof, the following rules shall be observed:

(a) After a criminal action has been commenced the pending civil action arising from the same offense
shall be suspended, in whatever stage it may be found, until final judgment in the criminal proceeding has
been rendered. . . .

The civil action for legal separation, grounded as it is on concubinage, it is petitioner's position that such
civil action arises from, or is inextricably tied to the criminal action for concubinage, so that all proceedings
related to legal separation will have to be suspended to await conviction or acquittal for concubinage in
the criminal case. Authority for this position is this Court's decision in the case of Jerusalem vs. Hon.
Roberto Zurbano. 1

Petitioner's contention is not correct.

In Jerusalem, the Court's statement to the effect that suspension of an action for legal separation would
be proper if an allegation of concubinage is made therein, relied solely on Sec. 1 of Rule 107 of
the then provisions of the Rules of Court on criminal procedure, to wit:

Sec. 1. Rules governing civil actions arising from offenses.-Except as otherwise provided by law, the
following rules shall he observed:

(a) When a criminal action is instituted, the civil action for recovery of civil liability arising from the offense
charged is impliedly instituted with the criminal action, unless the offended party expressly waives the
civil action or reserves his right to institute it separately;

(b) Criminal and civil actions arising from the same offense may be instituted separately, but after the
criminal action has been commenced the civil action can not be instituted until final judgment has been
rendered in the criminal action;

(c) After a criminal action has been commenced, no civil action arising from the same offense can be
prosecuted and the same shall be suspended in whatever stage it may be found until final judgment in
the criminal proceeding has been rendered ... (Emphasis supplied)

The provisions last quoted did not clearly state, as the 1985 Rules do, that the civil action to be suspended,
with or upon the filing of a criminal action, is one which is "to enforce the civil liability arising from the
offense". In other words, in view of the amendment under the 1985 Rules on Criminal Procedure, a civil
action for legal separation, based on concubinage, may proceed ahead of, or simultaneously with, a
criminal action for concubinage, because said civil action is not one "to enforce the civil liability arising
from the offense" even if both the civil and criminal actions arise from or are related to the same offense.
Such civil action is one intended to obtain the right to live separately, with the legal consequences thereof,
such as, the dissolution of the conjugal partnership of gains, custody of offsprings, support, and
disqualification from inheriting from the innocent spouse, among others. As correctly pointed out by the
respondent Judge in his Order dated 5 August 1987:

The unreported case of JERUSALEM vs. Hon. Roberto Zurbano, Judge of CFI of Antique, et al., L-11935,
April 24, 1959 (105 Phil. 1277) is not controlling. It applied paragraph C of Sec. 1, of then Rule 107 of the
Rules of Court, which reads:

After a criminal action has been commenced, no civil action arising from the same offense can be
prosecuted and the same shall be suspended, in whatever stage it may be found, until final judgment in
the criminal proceeding has been rendered. (Emphasis supplied)

The governing rule is now Sec. 3, Rule 111, 1985 Rules on Criminal Procedure which refers to "civil actions
to enforce the civil liability arising from the offense" as contemplated in the first paragraph of Section 1
of Rule 111-which is a civil action "for recovery of civil liability arising from the offense charged." Sec. 1,
Rule 111, (1985) is specific that it refers to civil action for the recovery of civil liability arising from the
offense charged. Whereas, the old Sec. 1 (c), Rule 107 simply referred to "Civil action arising from the
offense."

As earlier noted this action for legal separation is not to recover civil liability, in the main, but is aimed at
the conjugal rights of the spouses and their relations to each other, within the contemplation of Articles
7 to 108, of the Civil Code."2
Petitioner also argues that his conviction for concubinage will have to be first secured before the action
for legal separation can prosper or succeed, as the basis of the action for legal separation is his alleged
offense of concubinage.

Petitioner's assumption is erroneous.

A decree of legal separation, on the ground of concubinage, may be issued upon proof by preponderance
of evidence in the action for legal separation. 3 No criminal proceeding or conviction is necessary. To this
end, the doctrine in Francisco vs. Tayao 4 has been modified, as that case was decided under Act. No.
2710, when absolute divorce was then allowed and had for its grounds the same grounds for legal
separation under the New Civil Code, with the requirement, under such former law, that the guilt of
defendant spouses had to be established by final judgment in a criminal action. That requirement has not
been reproduced or adopted by the framers of the present Civil Code, and the omission has been
uniformly accepted as a modification of the stringent rule in Francisco v. Tayao.5

Petitioner's attempt to resist payment of support pendente lite to his wife must also fail, as we find no
proof of grave abuse of discretion on the part of the respondent Judge in ordering the same.
Support pendente lite, as a remedy, can be availed of in an action for legal separation, and granted at the
discretion of the judge. 6 If petitioner finds the amount of support pendente lite ordered as too onerous,
he can always file a motion to modify or reduce the same. 7

Petitioner lastly seeks to have the respondent Judge disqualified from hearing the case, as the grant of
supportpendente lite and the denial of the motion to suspend hearings in the case, are taken by the
petitioner as a disregard of applicable laws and existing doctrines, thereby showing the respondent
Judge's alleged manifest partiality to private respondent.

Petitioner's contention is without merit. Divergence of opinions between a judge hearing a case and a
party's counsel, as to applicable laws and jurisprudence, is not a sufficient ground to disqualify the judge
from hearing the case, on the ground of bias and manifest partiality. This is more so, in this case, where
we find the judge's disposition of petitioner's motions to be sound and well-taken.

WHEREFORE, the instant petition is hereby DISMISSED. Costs against petitioner.

SO ORDERED.

11. No. 12506-R. April 15, 1955

FELICIDAD P. MUOZ, petitioner and appellant, vs. JOSE DEL BARRIO, respondent and appellee

APPEAL from a judgment of the Court of First Instance of Bulacan. Ysip, J.

Manuel Y. Macias for petitioner and appellant.

Jose del Barrio in his own behalf as respondent and appellee.

FELIX, J.:

Felicidad P. Muoz and Jose del Barrio were married civilly before Judge Natividad Almeda Lopez of the
Municipal Court of Manila on September 24, 1942 and again canonically on October 24 of that year before
the Catholic Minister Fr. Antonio Albrecht. Since their marriage the couple lived together as husband and
wife for the ensuing six months in the house of the husbands father at Rizal Avenue, Manila, and then
moved their residence to the municipality of Maycawayan, Bulacan. Out of this union were born Felix Luis
del Barrio and Maria Teresa del Barrio who must be actually 11 and 9 years old, respectively.
It seems that during their married life this couple had frequent quarrels, on which occasions the husband
maltreated his wife by deed, and because the latter was unable to bear such punishment, in 1947 they
unceremoniously separated, the wife staying in Meycawayan and the husband in the house of his father
at 2110 Rizal Avenue, Manila. Notwithstanding this separation of dwellings they met each other in the
City of Manila, and the wife claims that in December, 1950, or January, 1951, and in September of the
latter year she was again maltreated by her husband. This moved her to institute the present action
alleging in the petition filed on October 26, 1951, in the Court of First Instance of Bulacan, among other
things, that the system of conjugal partnership of gains governs her marriage to the respondent; that no
property has been acquired during the marriage of the petitioner and respondent except a portion of a
residential land located in Meycawayan, Bulacan, from which no rentals are derived; that respondent has
made several attempts on the life of the herein petitioner which compelled her to live separately and
apart from the respondent since 1947; and that respondent has not provided support for petitioner and
their children. Hence she prays the court:

(a) that a decree be entered for the legal separation of petitioner from respondent;
(b) that petitioner be awarded the custody of their minor children Felix del Barrio and Maria Teresa del
Barrio by herein respondent;
(c) that respondent be directed to contribute to the support of said children;
(d) that petitioner be allowed costs, plus attorneys fees in the sum of P200 in this instance, to be charged
against the conjugal partnership property referred to in paragraph 4 above, pursuant to Article 293 of the
Civil Code of the Philippines;
(e) that whatever shall remain of said conjugal partnership property after deduction of the expenses
mentioned in the next preceding paragraph, be divided and adjudicated in equal parts to herein petitioner
and respondent and the conjugal partnership dissolved and liquidated; and
(f) that petitioner be granted such further and complete relief as may be just and equitable in the
premises.

On November 12, 1951, respondent filed his answer to the petition denying the averments made in his
wifes pleading and prayed the court that the petition be denied and dismissed for lack of merit, it being
contrary to moral and good customs and not authorized or sanctioned by statute, praying further for such
other relief as provided by law, with costs de oficio.
After the issues were joined, the court, in compliance with the provisions of Article 98 of the new Civil
Code, took every feasible step towards the reconciliation of the spouses, but His Honor failed in his
purpose by reason of the determined refusal of the wife to yield to the efforts of the Judge to that end.
Hence the case proceeded with the intervention of the office of the Provincial Fiscal of Bulacan. After
hearing the Court rendered decision the dispositive part of which, translated into English, is as follows:

IN VIEW OF THESE CONSIDERATIONS, the Court is of the opinion and so holds that the present complaint
must be, as it is hereby, dismissed for lack of merits; without costs.

Not satisfied with the outcome of her petition, Felicidad P. Muoz appealed from said judgment, and in
this instance her counsel maintains that the lower court erred:
1. In not finding that respondent-appellee had made attempts on the life of petitioner-appellant;
2. In not decreeing legal separation and in dismissing petitioner-appellants action without costs; and
3. In not awarding attorneys fees to petitioner-appellant.

The new Civil Code prescribes the following:

Art. 97. A petition for legal separation may be filed:

(1) For adultery on the part of the wife and for concubinage on the part of the husband, as defined in the
Penal Code; or
(2) An attempt by one spouse against the life of the other.

In the case at bar the alleged maltreatments to the wife by the husband occurred before their separation
a mensa et thoro in 1947 must not have amounted to said husbands attempts on the life of his wife, since
the latter did not institute any action for the legal separation from him upon the effectivity of the Civil
Code on August 30, 1950, and this case was only brought to court on October 26, 1951, after the alleged
maltreatment of September 1951 had taken place. Therefore, in this appeal we only have to determine
whether the maltreatments that appellant suffered at the hands of the respondent after their separation
of dwelling, which allegedly occurred in December, 1950, or January, 1951, and September of the latter
year, furnish ground for the legal separation applied for under paragraph 2 of Article 97 of the Civil Code.

In appellants brief mention is made of the testimonies of Jovita Faustino, a tenant of apartment No. 2068
Ipil St., Manila, owned by appellants father, Felix Muoz, of Meycawayan, Bulacan, and referring to the
quarrel that the spouses had in March of 1950; of Faustino Mallari, patrolman in the Manila Police
Department, referring to the spouses encounter in December, 1950, or January, 1951; of appellants
counsel, Attorney Manuel M. Macias, relative to the occasion in which the spouses met at his office on or
about September 30, 1951; and of appellant herself. The maltreatment referred to by Jovita Faustino
consisted merely in appelles giving a fist blow on the face of appellant. Patrolman Mallari did not witness
the maltreatment on which he testified, for he was called by appellant to intervene in the quarrel between
the spouses when it was already over, and the only thing he noticed was that she was crying and that
there were certain scratches on her brow and cheeks and on certain points of the neck which were
blackened (ecchymosis). About the quarrel spoken of by Attorney Macias, the latter declared that appelle
boxed his wife on the abdomen, pulled her hair and had also twisted her neck when said attorney, Leoncio
Santos and Jose Enriquez separated petitioner and respondent.

An attempt on the life of a person implies that the actor in the attempt is moved by an intention to kill
the person against whom the attempt is made, and after a careful examination of the evidence produced
by appellant we cannot make up our mind to declare that the alleged maltreatments of respondent to his
wife were moved by such intent to kill. On the contrary, we share the opinion of the trial judge who
declared that said maltreatments cannot constitute attempts on the life of appellant as provided in Article
97, No.2, of the Civil Code of the Philippines.

From the second edition of the Revised Penal Code by Dean Vicente J. Francisco Book II, part 1, pp. 671-
672 we copy the following:

In the prosecutions for frustrated or attempted homicide, the intention to take life must be proved with
the same degree of certainty as is required with respect to other elements of the crime, and the inference
of such intent should not be drawn in the absence of circumstances sufficient to prove such intention
beyond reasonable doubt (People vs. Villanueva, 51 Phil., 448). It is absolutely necessary that the
homicidal intent be evidenced by adequate acts which at the time of their execution were unmistakably
calculated to produce the death of the victim, since the crime of frustrated or attempted homicide is one
in which, more than in any other case, the penal law is based upon the material results produced by the
criminal act. It is not proper or just to attribute to the delinquent a specific intent to commit the higher
crime in the absence of proof to justify such a conclusion (U.S. vs. Taguibao, 1 Phil., 16). Conformably to
this rule, therefore, an accused who, upon seeing a man plowing the land which was the subject matter
of a dispute, immediately attacks the latter, inflicting blows upon his neck with the back of the bolo, must
be convicted of physical injuries, and not of frustrated homicide, because the mere fact that the assault
was committed with the back instead of the cutting edge of the bolo negatives the idea of homicidal intent
and precludes the crime from constituting frustrated homicide. (U.S. vs. Taguibao, 1 Phil., 16).

Nothing is more difficult to discover than intention, this being a mental act; we are only able to deduce
it from the external acts performed by the agent, and when these acts have naturally given a definite
result, courts should not without clear and conclusive proof, hold that some other result was intended
(U.S. vs. Mendoza, 38 Phil., 691, 693)> It is always to be remembered that the first and simplest
presumption which, as stated above, the law draws with respect to human conduct, in connection with
acts of violence, is that the actor intended the natural consequence of his acts; and this presumption
should be implied in a fair and rational way, with proper regard to all the details of the act, and without
the suppression of any of its elements. *** Likewise, where the accused inflicted a scalp wound with a
hatchet and struck at his victim a second time, it should not be inferred, from the mere fact that a hatchet
in the hands of an infuriated man is a deadly weapon, that the accused really intended to kill (People vs.
Villanueva, 51 Phil., 488). When criminal liability is made to consist in the intention to perform an act
which was not realized, the facts from which it is claimed that intention sprang must be such as to exclude
all contrary supposition. When this intention is not necessarily disclosed by the acts performed by the
defendant, greater importance should not be given to such acts than that which they in themselves
import, nor should the defendants liability be extended beyond that which is actually involved in the
material results of the act. (U.S. vs Mendoza, 38 Phil., 691).

In the case of U.S. vs. Reyes et al., 30 Phil., 551, the Highest Tribunal of the land said the following:

Homicide; Criminal intent. When the case affords no good reason for holding that the assailants
positively intended to kill the injured party in spite of the persistent and repeated beatings they gave him,
however much they plainly demonstrated their intention of doing him injury, by striking him in an
inhuman manner on various parts of his body, it is improper to classify the crime as either frustrated or
attempted homicide. A personal assault must be punished according to its consequences and the harm
done to the victim, for the penal law in this class of crimes is only concerned with the material results
produced by the transgression, unless the perverse intention of taking the victims life be clearly
manifested.

In the maltreatments complained of in this case, the respondent only used at most his bare fists or hands
and desisted from giving further chastisement after the first blows were given at the spur of the impulse.
It is argued, however, that this is a civil case and that appellant is only bound to prove her right of action
by preponderance of evidence and not by evidence beyond reasonable doubt upon which a conviction for
attempted paricide would rest, and though we may, to a certain extent, agree with counsel for appellant
on this point, yet we cannot help but declare that in so far as the intent to kill is concerned, it must be
established with clear and convincing evidence, and that in the case at bar said intent has not been proved
by such evidence. Petitioner-appellant herself should not have been so sure of her evidence when instead
of the present action she dared not cause the prosecution of her husband for attempted parricide as a
means of establishing her right to secure the legal separation she applies for in this case.

Wherefore, the decision appealed from, being in conformity with the law and the evidence of record, is
hereby affirmed without pronouncement as to costs.

It is so ordered.

12. G.R. No. L-29138 May 29, 1970

ELENA CONTRERAS, plaintiff-appellant,

vs.
CESAR J. MACARAIG, defendant-appellee.

Jose T. Nery for plaintiff-appellee.

The City fiscal for defendant-appellant.

Cesar J. Macaraig in his own behalf.

DIZON, J.:

Appeal taken by Elena Contreras from a decision of the Juvenile and Domestic Relations Court of Manila
in Civil Case No. 00138 dismissing her complaint upon the ground that the same was filed more than one
year from and after the date on which she had become cognizant of the cause for legal separation.

The following, facts found by the trial court are not in dispute:

Plaintiff and defendant were married on March 16, 1952 in the Catholic Church of Quiapo, Manila. Out of
their Marriage, three children were born: Eusebio C. Macaraig, on January 11, 1953; Victoria C. Macaraig,
on March 26, 1956; and Alexander C. Macaraig, on August 4, 1958. All the children are in the care of
plaintiff wife.

Sometime in 1958, the couple acquired rights, as lessee and purchaser under a conditional sale
agreement, to own a house and lot, known as Lot 4, Block 8 of the Philamlife Homes in Quezon City which
they transferred in favor of their three children on October 29, 1958 (Exh. F). Installment payments are
being made by plaintiff's father. The spouses own no other conjugal property.

Immediately before the election of 1961, defendant was employed as manager of the printing
establishment owned by plaintiff's father known as the MICO Offset. In that capacity, defendant met and
came to know Lily Ann Alcala, who place orders with MICO Offset for propaganda materials for Mr. Sergio
Osmea, who was then a Vice-Presidential candidate. After the elections of 1961, defendant resigned
from MICO Offset to be a special agent at Malacaang. He began to be away so often and to come home
very late. Upon plaintiff's inquiry, defendant explained that he was out on a series of confidential missions.

In September, 1962, Avelino Lubos, driver of the family car, told plaintiff that defendant was living in
Singalong with Lily Ann Alcala. When defendant, the following October, returned to the conjugal home,
plaintiff refrained from verifying Lubos' report from defendant in her desire not to anger nor drive
defendant away. Although plaintiff, in April 1963, also received rumors that defendant was seen with a
woman who was on the family way on Dasmarias St., she was so happy that defendant again return to
the family home in May, 1963 that she once more desisted from discussing the matter with him because
she did not wish to precipitate a quarrel and drive him away. All this while, defendant, if and whenever
he returned to the family fold, would only stay for two or three days but would be gone for a period of
about a month.

After plaintiff received reports that Lily Ann Alcala had given birth to a baby, she sent Mrs. Felicisima
Antioquia, her father's employee, to verify the reports. The latter was driven by Lubos to the house in
Singalong and between 5:00 and 6:00 o'clock that afternoon, she saw defendant was carrying a baby in
his arms. Mrs. Antioquia then went to the parish priest of Singalong where she inquired about the child
of Cesar Macaraig and Lily Ann Alcala and she was given a copy of the baptismal certificate of Maria Vivien
Mageline Macaraig (Exh. G) which she gave to plaintiff sometime in October, 1963.

Plaintiff then entreated her father-in-law, Lucilo Macaraig, to intercede with defendant and to convince
him to return to his family. Mr. Macaraig, after talking to his son and seeking him with the latter's child
told plaintiff that he could not do anything.

In November, 1963, plaintiff requested the cooperation of defendant's older sister, Mrs. Enriqueta Majul,
and the latter obliged and arranged a meeting at her home in Buendia between plaintiff and Lily Ann
Alcala. Lily Ann said she was willing to give up defendant as she had no desire to be accused criminally but
it was defendant who refused to break relationship with her.

In the early part of December, 1963, plaintiff, accompanied by her two children, Victoria and Alexander,
and by Mrs. Leticia Lagronio went to talk to defendant at his place of work on Espaa Extension in front
of Quezon Institute. They repaired to Victoria Peak, a nearby restaurant, where plaintiff pleaded with
defendant to give up Lily Ann Alcala and to return to the conjugal home, assuring him that she was willing
to forgive him. Defendant informed plaintiff that he could no longer leave Lily Ann and refused to return
to his legitimate family.

On December 14, 1963, plaintiff instituted the present action for legal separation. When defendant did
not interpose any answer after he was served summons, the case was referred to the Office of the City
Fiscal of Manila pursuant to the provisions of Article 101 of the Civil Code. After a report was received
from Asst. Fiscal Primitivo M. Pearanda that he believed that there was no collusion present, plaintiff
was allowed to present her evidence. Defendant has never appeared in this case.

The reasons relied upon by the trial court in dismissing the complaint are set forth in the appealed decision
as follows:

Under the facts established by plaintiff's evidence, although the infidelity of the husband is apparent, yet
the case will have to be dismissed. Article 102 provides that, an action for legal separation cannot be
instituted except within one year after plaintiff "became cognizant of the cause." In the absence of a clear-
cut decision of the Supreme Court as to the exact import of the term "cognizant," the practical application
of said Article can be attended with difficulty. For one thing; that rules might be different in case of
adultery, which is an act, and for concubinage, which may be a situation or a relationship.
In respect of concubinage, the word 'cognizant' may not connote the date when proof thereof sufficient
to establish the cause before a court of law is possessed. Otherwise, the one year period would be
meaningless for practical purposes because all a wife would have to do would be to claim that the
necessary proof was secured only within one year before the filing of the complaint. On the other hand,
it should be hard to concede that what the law envisages (and, in a way, encourages) is the filing of a
complaint within one year after the innocent spouses has received information of the other's infidelity,
howsoever baseless the report might be.

The Court believes that the correct rule lies between the two extremes. At the time a wife acquired
information, which can be reasonably relied upon as true, that her husband is living in concubinage with
another woman, the one-year period should be deemed to have started even if the wife shall not then be
in possession of proof sufficient to establish the concubinage before a court of law. The one-year period
may be viewed, inter alia, as an alloted time within which proof should be secured. It is in the light of this
rule that the Court will determine whether or not plaintiff's action for legal separation has prescribed.

After her husband resigned from MICO Offset to be a special agent in Malacaan, subsequent to the
elections of 1961, he would seldom come home. He allayed plaintiff's suspicions with the explanation that
he had been away on 'confidential missions.' However, in September, 1962, Avelino Lubos, plaintiff's
driver, reported to plaintiff that defendant was living in Singalong with Lily Ann Alcala. As a matter of fact,
it was also Lubos who brought Mrs. F. Antioquia (when plaintiff had asked to verify the reports) to the
house in Singalong where she saw defendant, Lily Ann and the baby.

The requirement of the law that a complaint for legal separation be filed within one year after the date
plaintiff become cognizant of the cause is not of prescriptive nature, but is of the essence of the cause of
action. It is consonant with the philosophy that marriage is an inviolable social institution so that the law
provides strict requirements before it will allow a disruption of its status.

In the instant action, the Court has to find that plaintiff became cognizant of defendant's infidelity in
September, 1962. Plaintiff made successive attempts to induce the husband to amend his erring ways but
failed. Her desire to bring defendant back to the connubial fold and to preserve family solidarity deterred
her from taking timely legal action.

The only question to be resolved is whether the period of one year provided for in Article 102 of the Civil
Code should be counted, as far as the instant case is concerned from September 1962 or from December
1963. Computing the period of one year from the former date, it is clear that plaintiff's complaint filed on
December 14, 1963 came a little too late, while the reverse would be true if said period is deemed to have
commenced only in the month of December 1963.

The period of "five years from after the date when such cause occurred" is not here involved.

Upon the undisputed facts it seems clear that, in the month of September 1962, whatever knowledge
appellant had acquired regarding the infidelity of her husband, that is, of the fact that he was then living
in Singalong with Lily Ann Alcala, was only through the information given to her by Avelino Lubos, driver
of the family car. Much as such hearsay information had pained and anguished her, she apparently
thought it best and no reasonable person may justifiably blame her for it not to go deeper into the
matter herself because in all probability even up to that time, notwithstanding her husband's obvious
neglect of his entire family, appellant still cherished the hope however forlorn of his coming back
home to them. Indeed, when her husband returned to the conjugal home the following October, she
purposely refrained from bringing up the matter of his marital infidelity "in her desire not to anger nor
drive defendant away" quoting the very words of the trial court. True, appellant likewise heard in April
1963 rumors that her husband was seen with a woman on the family way on Dasmarias Street, but failed
again to either bring up the matter with her husband or make attempts to verify the truth of said rumors,
but this was due, as the lower court itself believed, because "she was so happy that defendant again
returned to the family home in May 1963 that she once more desisted from discussing the matter with
him because she did not wish to precipitate a quarrel and drive him away." As a matter of fact,
notwithstanding all these painful informations which would not have been legally sufficient to make a
case for legal separation appellant still made brave if desperate attempts to persuade her husband to
come back home. In the words of the lower court, she "entreated her father-in-law, Lucilo Macaraig, to
intercede with defendant and to convince him to return to his family" and also "requested the cooperation
of defendant's older sister, Mrs. Enriqueta Majul" for the same purpose, but all that was of no avail. Her
husband remained obdurate.

After a careful review of the record, We are persuaded that, in the eyes of the law, the only time when
appellant really became cognizant of the infidelity of her husband was in the early part of December 1963
when, quoting from the appealed decision, the following happened

In the early part of December, 1963, plaintiff, accompanied by her two children, Victoria and Alexander,
and by Mrs. Leticia Lagronio went to talk to defendant at his place of work on Espaa Extension in front
of Quezon Institute. They repaired to Victoria Peak, a nearby restaurant, where plaintiff pleaded with
defendant to give up Lily Ann Alcala and to return to the conjugal home, assuring him that she was willing
to forgive him. Defendant informed plaintiff that he could no longer leave Lily Ann and refused to return
to his legitimate family.

From all the foregoing We conclude that it was only on the occasion mentioned in the preceding
paragraph when her husband admitted to her that he was living with and would no longer leave Lily Ann
to return to his legitimate family that appellant must be deemed to be under obligation to decide whether
to sue or not to sue for legal separation, and it was only then that the legal period of one year must be
deemed to have commenced.

WHEREFORE, the decision appealed from is set aside and another is hereby rendered holding that
appellant is entitled to legal separation as prayed for in her complaint; and the case is hereby remanded
to the lower court for appropriate proceedings in accordance with law.

13. G.R. No. L-11766 October 25, 1960

SOCORRO MATUBIS, plaintiff-appellant,

vs.
ZOILO PRAXEDES, defendant-appellee.

Luis N. de Leon for appellant.

Lucio La. Margallo for appellee.

PAREDES, J.:
Alleging abandonment and concubinage, plaintiff Socorro Matubis, filed with the Court of First Instance
of Camarines Sur, on April 24, 1956, a complaint for legal Separation and changed of surname against her
husband defendant Zoilo Praxedes.

The allegations of the complaint were denied by defendant spouse, who interposed the defense that it
was plaintiff who left the conjugal home.

During the trial, wherein the plaintiff alone introduced oral as well as documentary evidence, the following
facts were established:.

Plaintiff and defendant were legally married on January 10, 1943 at Iriga, Camarines Sur. For failure to
agree on how they should live as husband and wife, the couple, on May 30, 1944, agreed to live separately
from each other, which status remained unchanged until the present. On April 3, 1948, plaintiff and
defendant entered into an agreement (Exhibit B), the significant portions of which are hereunder
reproduced..

. . . (a) That both of us relinquish our right over the other as legal husband and wife.

(b) That both without any interference by any of us, nor either of us can prosecute the other for adultery
or concubinage or any other crime or suit arising from our separation.

(c) That I, the, wife, is no longer entitled for any support from my husband or any benefits he may received
thereafter, nor I the husband is not entitled for anything from my wife.

(d) That neither of us can claim anything from the other from the time we verbally separated, that is from
May 30, 1944 to the present when we made our verbal separation into writing.

In January, 1955, defendant began cohabiting with one Asuncion Rebulado and on September 1, 1955,
said Asuncion gave birth to a child who was recorded as the child of said defendant (Exh. C.).It was shown
also that defendant and Asuncion deported themselves as husband and wife and were generally reputed
as such in the community.

After the trial, without the defendant adducing any evidence, the court a quo rendered judgment holding
that the acts of defendant constituted concubinage, a ground for legal separation. It however, dismissed
the complaint by stating:

While this legal ground exist, the suit must be dismissed for two reasons, viz:

Under Art. 102 of the new Civil Code, an action for legal separation cannot be filed except within one year
from and after the date on which the plaintiff became cognizant of the cause and within five years from
and after the date when the cause occurred. The plaintiff became aware of the illegal cohabitation of her
husband with Asuncion Rebulado in January, 1955. The complaint was filed on April 24, 1956. The present
action was, therefore, filed out of time and for that reason action is barred.

Article 100 of the new Civil Code provides that the legal separation may be claimed only by the innocent
spouse, provided there has been no condonation of or consent to the adultery or concubinage. As shown
in Exhibit B, the plaintiff has consented to the commission of concubinage by her husband. Her consent is
clear from the following stipulations:
(b) That both of us is free to get any mate and live with as husband and wife without any interference by
any of us, nor either of us can prosecute the other for adultery or concubinage or any other crime or suit
arising from our separation. (Exh. B).

This stipulation is an unbridled license she gave her husband to commit concubinage. Having consented
to the concubinage, the plaintiff cannot claim legal separation.

The above decision is now before us for review, plaintiff- appellant claiming that it was error for the lower
court to have considered that the period to bring the action has already elapsed and that there was
consent on the part of the plaintiff to the concubinage. The proposition, therefore, calls for the
interpretation of the provisions of the law upon which the lower court based its judgment of dismissal.

Article 102 of the new Civil Code provides:

An action for legal separation cannot be filed except within one year from and after the date on which the
plaintiff became cognizant of the cause and within five years from after the date when cause occurred.

The complaint was filed outside the periods provided for by the above Article. By the very admission of
plaintiff, she came to know the ground (concubinage) for the legal separation in January, 1955. She
instituted the complaint only on April 24, 1956. It is to be noted that appellant did not even press this
matter in her brief.

The very wording of the agreement Exhibit B. gives no room for interpretation other than that given by
the trial judge. Counsel in his brief submits that the agreement is divided in two parts. The first part having
to do with the act of living separately which he claims to be legal, and the second part that which
becomes a license to commit the ground for legal separation which is admittedly illegal. We do not share
appellant's view. Condonation and consent on the part of plaintiff are necessarily the import of paragraph
6(b) of the agreement. The condonation and consent here are not only implied but expressed. The law
(Art. 100 Civil Code), specifically provides that legal separation may be claimed only by the innocent
spouse, provided there has been no condonation of or consent to the adultery or concubinage. Having
condoned and/or consented in writing, the plaintiff is now undeserving of the court's sympathy (People
vs. Scheneckenburger, 73 Phil., 413). Plaintiff's counsel even agrees that the complaint should be
dismissed. He claims however, that the grounds for the dismissal should not be those stated in the
decision of the lower court, "but on the ground that plaintiff and defendant have already been legally
separated from each other, but without the marital bond having been affected, long before the effectivity
of the new Civil Code" (appellants brief, pp. 7-8). Again, we cannot subscribed to counsel's contention,
because it is contrary to the evidence.

Conformably with the foregoing, we find that the decision appealed from is in accordance with the
evidence and the law on the matter. The same is hereby affirmed, with costs

14. G.R. No. L-10033 December 28, 1956

BENJAMIN BUGAYONG, plaintiff-appellant,

vs.
LEONILA GINEZ, defendant-appellee.

Florencio Dumapias for appellant.

Numeriano Tanopo, Jr. for appellee.
FELIX, J.:

This is a case for legal separation filed in the Court of First Instance of Pangasinan wherein on motion of
the defendant, the case was dismissed. The order of dismissal was appealed to the Court of Appeals, but
said Tribunal certified the case to the Court on the ground that there is absolutely no question of fact
involved, the motion being predicated on the assumption as true of the very facts testified to by plaintiff-
husband.

The facts of the case abridgedly stated are as follows: Benjamin Bugayong, a serviceman in the United
States Navy, was married to defendant Leonila Ginez on August 27, 1949, at Asingan, Pangasinan, while
on furlough leave. Immediately after their marriage, the couple lived with their sisters who later moved
to Sampaloc, Manila. After some time, or about July, 1951, Leonila Ginez left the dwelling of her sister-in-
law and informed her husband by letter that she had gone to reside with her mother in Asingan,
Pangasinan, from which place she later moved to Dagupan City to study in a local college there.

As early as July, 1951, Benjamin Bugayong began receiving letters from Valeriana Polangco (plaintiff's
sister-in-law) and some from anonymous writers(which were not produced at the hearing) informing him
of alleged acts of infidelity of his wife which he did not even care to mention. On cross-examination,
plaintiff admitted that his wife also informed him by letter, which she claims to have destroyed, that a
certain "Eliong" kissed her. All these communications prompted him in October, 1951 to seek the advice
of the Navy Chaplain as to the propriety of a legal separation between him and his wife on account of the
latter's alleged acts of infidelity, and he was directed to consult instead the navy legal department.

In August, 1952, plaintiff went to Asingan, Pangasinan, and sought for his wife whom he met in the house
of one Mrs. Malalang, defendant's godmother. She came along with him and both proceeded to the house
of Pedro Bugayong, a cousin of the plaintiff-husband, where they stayed and lived for 2 nights and 1 day
as husband and wife. Then they repaired to the plaintiff's house and again passed the night therein as
husband and wife. On the second day, Benjamin Bugayong tried to verify from his wife the truth of the
information he received that she had committed adultery but Leonila, instead of answering his query,
merely packed up and left, which he took as a confirmation of the acts of infidelity imputed on her. After
that and despite such belief, plaintiff exerted efforts to locate her and failing to find her, he went to
Bacarra, Ilocos Norte, "to soothe his wounded feelings".

On November 18, 1952, Benjamin Bugayong filed in the Court of First Instance of Pangasinan a complaint
for legal separation against his wife, Leonila Ginez, who timely filed an answer vehemently denying the
averments of the complaint and setting up affirmative defenses. After the issues were joined and
convinced that a reconciliation was not possible, the court set the case for hearing on June 9, 1953.
Plaintiff's counsel announced that he was to present 6 witnesses but after plaintiff-husband finished
testifying in his favor, counsel for the defendant orally moved for the dismissal of the complaint, but the
Court ordered him to file a written motion to that effect and gave plaintiff 10 days to answer the same.

The motion to dismiss was predicted on the following grounds: (1) Assuming arguendo the truth of the
allegations of the commission of "acts of rank infidelity amounting to adultery", the cause of action, if any,
is barred by the statute of limitations; (2) That under the same assumption, the act charged have been
condoned by the plaintiff-husband; and (3) That the complaint failed to state a cause of action sufficient
for this court to render a valid judgment.

The motion to dismiss was answered by plaintiff and the Court, considering only the second ground of the
motion to dismiss i. e., condonation, ordered the dismissal of the action. After the motion for
reconsideration filed by plaintiff was denied, the case was taken up for review to the Court of Appeals,
appellant's counsel maintaining that the lower court erred:

(a) In so prematurely dismissing the case;

(b) In finding that there were condonation on the part of plaintiff-appellant; and

(c) In entertaining condonation as a ground for dismissal inasmuch as same was not raised in the answer
or in a motion to dismiss.

As the questions raised in the brief were merely questions of law, the Court of Appeals certified the case
to Superiority.

The Civil Code provides:

ART. 97. A petition for legal separation may be filed:

(1) For adultery on the part of the wife and for concubinage for the part of the husband as defined on the
Penal Code; or

(2) An attempt by one spouse against the life of the other.

ART. 100. The legal separation may be claimed only by the innocent spouse, provided there has been no
condonation of or consent to the adultery or concubinage. Where both spouses are offenders, a legal
separation cannot by either of them. Collusion between the parties to obtain legal separation shall cause
the dismissal of the petition.

ART. 102. An action for legal separation cannot be filed except within one year from and after the date on
which the plaintiff became cognizant of the cause and within five years from and after the date when such
cause occurred.

As the only reason of the lower Court for dismissing the action was the alleged condonation of the charges
of adultery that the plaintiff-husband had preferred in the complaint against his wife, We will disregard
the other 2 grounds of the motion to dismiss, as anyway they have not been raised in appellant's
assignment of errors.

Condonation is the forgiveness of a marital offense constituting a ground for legal separation or, as stated
in I Bouver's Law Dictionary, p. 585, condonation is the "conditional forgiveness or remission, by a husband
or wife of a matrimonial offense which the latter has committed". It is to be noted, however, that in
defendant's answer she vehemently and vigorously denies having committed any act of infidelity against
her husband, and even if We were to give full weight to the testimony of the plaintiff, who was the only
one that had the chance of testifying in Court and link such evidence with the averments of the complaint,
We would have to conclude that the facts appearing on the record are far from sufficient to establish the
charge of adultery, or, as the complaint states, of "acts of rank infidelity amounting to adultery" preferred
against the defendant. Certainly, the letter that plaintiff claims to have received from his sister-in-law
Valeriana Polangco, which must have been too vague and indefinite as to defendant's infidelity to deserve
its production in evidence; nor the anonymous letters which plaintiff also failed to present; nor the alleged
letter that, according to plaintiff, his wife addressed to him admitting that she had been kissed by one
Eliong, whose identity was not established and which admission defendant had no opportunity to deny
because the motion to dismiss was filed soon after plaintiff finished his testimony in Court, do not amount
to anything that can be relied upon.

But this is not a question at issue. In this appeal, We have to consider plaintiff's line of conduct under the
assumption that he really believed his wife guilty of adultery. What did he do in such state of mind. In
August, 1952, he went to Pangasinan and looked for his wife and after finding her they lived together as
husband and wife for 2 nights and 1 day, after which he says that he tried to verify from her the truth of
the news he had about her infidelity, but failed to attain his purpose because his wife, instead of answering
his query on the matter, preferred to desert him, probably enraged for being subjected to such
humiliation. And yet he tried to locate her, though in vain. Now, do the husband's attitude of sleeping
with his wife for 2 nights despite his alleged belief that she was unfaithful to him, amount to a condonation
of her previous and supposed adulterous acts? In the order appealed from, the Court a quo had the
following to say on this point:

In the hearing of the case, the plaintiff further testified as follows:

Q. Now Mr. Bugayong, you have filed this action for legal separation from your wife. Please tell this Hon.
Court why you want to separate from your wife? A. I came to know that my wife is committing adultery,
I consulted the chaplain and he told me to consult the legal adviser. (p. 11, t.s.n.)

Q. Did you finally locate her?--A. Four days later or on the fifth day since my arrival she went to the house
of our god-mother, and as a husband I went to her to come along with me in our house but she refused.
(p. 12, t.s.n.)lawphil.net

Q. What happened next? A. I persuaded her to come along with me. She consented but I did not bring
her home but brought her to the house of my cousin Pedro Bugayong. (p. 12, t.s.n.)

Q. How long did you remain in the house of your cousin Pedro Bugayong? A. One day and one night.
(p. 12. t.s.n.)

Q. That night when you stayed in the house of your cousin Pedro Bugayong as husband and wife, did you
slept together? A. Yes, sir. (p. 19, t.s.n.)

Q. On the next night, when you slept in your own house, did you sleep together also as husband and wife?
A. Yes, sir. (p. 19. t.s.n.)

Q. When was that? A. That was in August, 1952. (p. 19 t.s.n.)

Q. How many nights did you sleep together as husband and wife? A. Only two nights. (p. 19, t.s.n.)

The New Civil Code of the Philippines, in its Art. 97, says:

A petition for legal separation may be filed:

(1) For adultery on the part of the wife and concubinage on the part of the husband as defined on the
Penal Code.
and in its Art. 100 it says:lawphil.net

The legal separation may be claimed only by the innocent spouse, provided there has been no
condonation of or consent to the adultery or concubinage. Where both spouses are offenders, legal
separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation
shall cause the dismissal of the petition.

A detailed examination of the testimony of the plaintiff-husband, especially those portions quoted above,
clearly shows that there was a condonation on the part of the husband for the supposed "acts of rank
infidelity amounting to adultery" committed by defendant-wife. Admitting for the sake of argument that
the infidelities amounting to adultery were committed by the defendant, a reconciliation was effected
between her and the plaintiff. The act of the latter in persuading her to come along with him, and the fact
that she went with him and consented to be brought to the house of his cousin Pedro Bugayong and
together they slept there as husband and wife for one day and one night, and the further fact that in the
second night they again slept together in their house likewise as husband and wife all these facts have
no other meaning in the opinion of this court than that a reconciliation between them was effected and
that there was a condonation of the wife by the husband. The reconciliation occurred almost ten months
after he came to know of the acts of infidelity amounting to adultery.

In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that "condonation is implied
from sexual intercourse after knowledge of the other infidelity. such acts necessary implied forgiveness.
It is entirely consonant with reason and justice that if the wife freely consents to sexual intercourse after
she has full knowledge of the husband's guilt, her consent should operate as a pardon of his wrong."

In Tiffany's Domestic and Family Relations, section 107 says:

Condonation. Is the forgiveness of a marital offense constituting a ground for divorce and bars the right
to a divorce. But it is on the condition, implied by the law when not express, that the wrongdoer shall not
again commit the offense; and also that he shall thereafter treat the other spouse with conjugal kindness.
A breach of the condition will revive the original offense as a ground for divorce. Condonation may be
express or implied.

It has been held in a long line of decisions of the various supreme courts of the different states of the U.
S. that 'a single voluntary act of sexual intercourse by the innocent spouse after discovery of the offense
is ordinarily sufficient to constitute condonation, especially as against the husband'. (27 Corpus Juris
Secundum, section 61 and cases cited therein).

In the lights of the facts testified to by the plaintiff-husband, of the legal provisions above quoted, and of
the various decisions above-cited, the inevitable conclusion is that the present action is untenable.

Although no acts of infidelity might have been committed by the wife, We agree with the trial judge that
the conduct of the plaintiff-husband above narrated despite his belief that his wife was unfaithful,
deprives him, as alleged the offended spouse, of any action for legal separation against the offending wife,
because his said conduct comes within the restriction of Article 100 of the Civil Code.

The only general rule in American jurisprudence is that any cohabitation with the guilty party, after the
commission of the offense, and with the knowledge or belief on the part of the injured party of its
commission, will amount to conclusive evidence of condonation; but this presumption may be rebutted
by evidence (60 L. J. Prob. 73).

If there had been cohabitation, to what extent must it be to constitute condonation?

Single voluntary act of marital intercourse between the parties ordinarily is sufficient to constitute
condonation, and where the parties live in the same house, it is presumed that they live on terms of
matrimonial cohabitation (27 C. J. S., section 6-d).

A divorce suit will not be granted for adultery where the parties continue to live together after it was
known (Land vs. Martin, 15 South 657; Day vs. Day, 80 Pac. 974) or there is sexual intercourse after
knowledge of adultery (Rogers vs. Rogers, 67 N. J. Eq. 534) or sleeping together for a single
night (Toulson vs. Toulson, 50 Atl. 401, citing Phinizy vs. Phinizy, 114 S. E. 185, 154 Ga. 199;
Collins vs. Collins, 193 So. 702), and many others. The resumption of marital cohabitation as a basis of
condonation will generally be inferred, nothing appearing to the contrary, from the fact of the living
together as husband and wife, especially as against the husband (Marsh vs. Marsh, 14 N. J. Eq. 315).

There is no ruling on this matter in our jurisprudence but we have no reason to depart from the doctrines
laid down in the decisions of the various supreme courts of the United States above quoted.

There is no merit in the contention of appellant that the lower court erred in entertaining condonation as
a ground for dismissal inasmuch as same was not raised in the answer or in a motion to dismiss, because
in the second ground of the motion to dismiss. It is true that it was filed after the answer and after the
hearing had been commenced, yet that motion serves to supplement the averments of defendant's
answer and to adjust the issues to the testimony of plaintiff himself (section 4, Rule 17 of the Rules of
Court).

Wherefore, and on the strength of the foregoing, the order appealed from is hereby affirmed, with costs
against appellant. It is so ordered.

15. G.R. No. L-43794 August 9, 1935

LUIS FRANCISCO, petitioner,

vs.
FRANCISCO ZANDUETA, Judge of First Instance of Manila, and
EUGENIO LEOPOLDO FRANCISCO, represented by his natural mother and curator ad litem,
ROSARIO GOMEZ, respondents.

Vicente J. Francisco for petitioner.

J.E. Blanco for respondents.

GODDARD, J.:

This is an original petition for the writ of certiorari whereby the petitioner, Luis Francisco, seeks to procure
the abrogation of an order of the respondent judge, dated May 2, 1935, granting the respondent, Eugenio
Leopoldo Francisco, a monthly pension of P30 pendente lite.

It appears that the respondent, Eugenio Leopoldo Francisco, aged two years, through his natural mother
and guardian ad litem, Rosario Gomez, instituted an action for support against the herein petitioner in the
Court of First Instance of the City of Manila, case No. 47238. In that case it is alleged that the therein
plaintiff is the acknowledged son of Luis Francisco and as such is entitled to support. The petitioner, as
defendant in that case, answered by a general denial of each and every material allegation contained in
the complaint and as a special defense alleged that he never acknowledged and could not have
acknowledged that he never acknowledged and could not have acknowledged the plaintiff as his son; that
he was not present at the baptism of the plaintiff and that he was married at the time it is alleged that
the plaintiff was born.

Notwithstanding this denial of paternity the respondent judge issued the order of May 2, 1935. On May
11, 1935, petitioner moved for the reconsideration of that order on the ground that it was issued in excess
of jurisdiction in view of the fact that the civil status of the plaintiff was placed in issue by the pleadings;
that the plaintiff has no right to monthly support from the defendant until his status as a child of the latter
is finally determined in his favor and that as the guardian ad litem of the plaintiff admits his lack of means
to defray even the ordinary expenses of existence it would be impossible for the defendant to recover
whatever amount he may have advanced to plaintiff as supportpendente lite, should it finally be decided
that he is not the father of the plaintiff.

The respondent judge, the Honorable Francisco Zandueta, denied that motion, hence the institution of
this special proceeding.

This court called upon the respondents to answer the petition. They filed a joint answer and alleged, in
substance, that case No. 47238 was set for trial the 29th of April, 1935, and that the attorney for the
defendant in that case filed a motion on April 22, 1935, in which he prayed that the trial be transferred;
that the hearing on this motion was set for April 27, 1935; that the attorney for the minor filed a motion,
on the day set for the hearing of the motion to transfer, in which he prayed that said minor be granted
the sum of P30 per month by way of support, pendente lite; that the guardian ad litem opposed the
motion to transfer the trial and that after discussion the attorney of the herein petitioner in order to
secure a transfer agreed that his client would pay the minor a pension of P30 per month during the
pendency of that case, No. 47238. The answer of the respondents is supported by the affidavits of the
respondent judge and two deputy clerks of the Court of First Instance of Manila.

In petitioner's reply to respondent's answer, made under oath by the attorney for the petitioner, in case
No. 47238 and in this proceeding, it is alleged that the statements in paragraph for of said answer and
those in the affidavit, Exhibits A and B, as to the agreement of said attorney to the payment of P30 as
monthly support, are absolutely false.

In order to arrive at a proper solution of this case it is not necessary to consider the dispute as to whether
or not the attorney for the herein petitioner really agreed that his client should pay P30 per month by way
of support to the plaintiff, pendente lite.

In the case of Yangco vs. Rohde (1 Phil., 404) the petitioner Yangco filed in this court a petition for a writ
of prohibition, alleging that a complaint had been filed, before the respondent judge, by Victorina Obin
against the petitioner praying that she be granted a divorce, a monthly allowance for alimony and
attorney's fees during the pendency of the suit; that the said judge ordered the petitioner to pay the
plaintiff a monthly allowance of two hundred fifty Mexican pesos; that the plaintiff in the said action owns
no property and that the respondent judge acted in excess of his jurisdiction in attempting to oblige the
petitioner to pay Victorina Obin said allowance.
In that case this court, speaking through Chief Justice Arellano, said:

In the present case the action for the support or alimony is brought by a woman who alleges that she is a
wife; therefore it is necessary for her to prove possession of the civil status of a spouse that is, a
marriage, without which one has no right to the title of husband or wife, . . . .

This evidence being lacking, and the civil status of marriage being in litigation, it is evident that nothing
can be taken for granted upon the point in issue. There is no law or reason which authorizes the granting
of alimony to a person who claims to be a spouse in the same manner as to a person who conclusively
establishes by legal proof that he or she is such a spouse, and sues for divorce or separation. In this case
the legal evidence raises a presumption of law; in the former there is no presumption, there is nothing
but a mere allegation a fact in issue and a simple fact in issue must not be confounded with an
established right recognized by a final judgment or based upon a legal presumption. The civil status of
marriage being denied, and this civil status, from which the right to support is derived, being in issue, it is
difficult to see how any effect can be given to such a claim until an authoritative declaration has been
made as to the existence of the cause. It is evident that there is of necessity a substantial difference
between the capacity of a person after the rendition of a final judgment in which that person is declared
to be in possession of the status of marriage and his capacity prior to such time when nothing exists other
than his suit or claim to be declared in possession of such status of marriage . . . .

Under article 143 of the Civil Code the following are bound to support each other: (1) Husband and wife,
(2) legitimate ascendants and descendants, (3) parents and acknowledged natural children and the
legitimate descendants of the latter, (4) parents and illegitimate children not having the legal status of
natural children and (5) brothers and sisters. In all these cases it is a civil status or a juridical relation which
is the basis of the action for support, the civil status of marriage or that of relationship.

Paraphrasing the language used in the decision in the Yangco case it may be said that in the present case
the action for support is brought by a minor, through his guardian ad litem, who alleges that he is the son
of the petitioner; therefore it is necessary for him to prove his civil status as such son. His alleged civil
status being in litigation, it is evident that nothing can be taken for granted upon the point in issue. There
is no law or reason which authorizes the granting of support to a person who claims to be a son in the
same manner as to a person who establishes by legal proof that he is such son. In the latter case the legal
evidence raises a presumption of law, while in the former there is no presumption, there is nothing but a
mere allegation, a fact in issue, and a simple fact in issue must not be confounded with an established
right recognized by a final judgment. The civil status of sonship being denied and this civil status, from
which the right to support is derived, being in issue, it is apparent that no effect can be given to such a
claim until an authoritative declaration has been made as to the existence of the cause. It is also evident
that there is a substantial difference between the capacity of a person after the rendition of a final
judgment in which that person is declared to be in possession of the status of a son and his capacity prior
to such time when nothing exists other than his suit or claim to be declared in possession of such a status.

The Civil Code grants the right of support to a son. This status not appearing by a final judgment, the
respondent judge was without jurisdiction to order the petitioner, as defendant in case No. 47238, to pay
the plaintiff the sum of P30, or any other amount as monthly support, pendente lite.
In view of the lack of jurisdiction of the respondent judge to grant the plaintiff support, pendente lite, it
is evident that the attorney of the defendant in case No. 47283 could not by his alleged consent to the
granting of such support give the trial judge jurisdiction to adjudicate such a claim against his client.

It is a universal rule of law that parties cannot, by consent, give a court, as such, jurisdiction in a matter
which is excluded by the laws of the land. In such a case the question is not whether a competent court
has obtained jurisdiction of a party triable before it, but whether the court itself is competent under any
circumstances to adjudicate a claim against the defendant. And where there is want of jurisdiction of the
subject-matter, a judgment is void as to all persons, and consent of parties can never impart to it the
vitality which a valid judgment derives from the sovereign state, the court being constituted, by express
provision of law, as its agent to pronounce its decrees in controversies between its people. (7 R.C.L., 1039.)

The writ prayed for is granted and the order of the respondent judge of May 2, 1935, ordering the herein
petitioner as defendant in case No. 47238 to pay the plaintiff in that case the sum of P30 monthly, as
support, pendente lite, is hereby declared null and void, without costs.

16. G.R. No. L-13982 July 31, 1920

DIEGO DE LA VIA, petitioner,

vs.
ANTONIO VILLAREAL, as Auxiliary Judge of First Instance, and NARCISA GEOPANO, respondents.

Del Rosario and Del Rosario and W. F. Mueller for petitioner.

J. Lopez Vito for respondents.

JOHNSON, J.:

This is an original petition presented in the Supreme Court. Its purpose is to obtain an order declaring: (a)
That the respondent, the Honorable Antonio Villareal, as Auxiliary Judge sitting in the Court of First
Instance of the province of Iloilo, has no jurisdiction to take cognizance of a certain action for divorce
instituted in said court by the respondent Narcisa Geopano against her husband, Diego de la Via, the
petitioner herein; (b) that the said respondent judge has exceeded his power and authority in issuing, in
said action, a preliminary injunction against the said petitioner prohibiting him from alienating or
encumbering any part of the conjugal property during the pendency of the action; and (c) that all the
proceedings theretofore had in said court were null and void.

It appears from the record that on September 17, 1917, Narcisa Geopano filed a complaint in the Court
of First Instance of the Province of Iloilo against Diego de la Via, alleging: (1) That she was a resident of
the municipality of Iloilo, Province of Iloilo, and that the defendant was a resident of the municipality of
Vallehermoso, Province of Oriental Negros; (2) that she was the legitimate wife of the defendant, having
been married to him in the municipality of Guijulgan, Province of Negros Oriental, in the year 1888; (3)
that since their said marriage plaintiff and defendant had lived as husband and wife and had nine children,
three of whom were living and were already of age; (4) that during their marriage plaintiff and defendant
had acquired property, real and personal, the value of which was about P300,000 and all of which was
under the administration of the defendant; (5) that since the year 1913 and up to the date of the
complaint, the defendant had been committing acts of adultery with one Ana Calog, sustaining illicit
relations with her and having her as his concubine, with public scandal and in disgrace of the plaintiff; (6)
that because of said illicit relations, the defendant ejected the plaintiff from the conjugal home, for which
reason she was obliged to live in the city of Iloilo, where she had since established her habitual residence;
and (7) that the plaintiff, scorned by her husband, the defendant, had no means of support and was living
only at the expense of one of her daughters. Upon said allegations she prayed for (a) a decree of divorce,
(b) the partition of the conjugal property, and (c) alimony pendente lite in the sum of P400 per month.

Subsequent to the filing of the said complaint, Narcisa Geopano, the plaintiff therein, presented a motion,
which was later amended, alleging, among other things, that since the filing of her complaint she had
personal knowledge that the defendant was trying to alienate or encumber the property which belonged
to the conjugal partnership between the plaintiff and the defendant, to the prejudice of the plaintiff, and
prayed that a preliminary injunction be issued against the defendant restraining and prohibiting him in
the premises.

The defendant Diego de la Via, petitioner herein, opposed the said motion for a preliminary injunction,
and, subsequently, demurred to the complaint upon the ground that the court had no jurisdiction to take
cognizance of the cause, "nor over the person of the defendant."

After hearing the respective parties the respondent judge, in to separate orders, dated November 1 and
November 2, 1917, respectively, overruled the defendant's demurrer, and granted the preliminary
injunction prayed for by the plaintiff.

Thereafter and on April 27, 1918, the defendant, Diego de la Via filed the present petition for certiorari in
this court, upon the ground that the respondent judge had no jurisdiction to take cognizance of the action
in question, and had exceeded his power and authority in issuing said preliminary injunction.

The questions arising out of the foregoing facts are as follows:

1. May a married woman ever acquire a residence or domicile separate from that of her husband during
the existence of the marriage?

2. In an action for divorce, brought by the wife against her husband, in which the partition of the conjugal
property is also prayed for, may the wife obtain a preliminary injunction against the husband restraining
and prohibiting him from alienating or encumbering any part of the conjugal property during the
pendency of the action?

I.

The petitioner contends that the Court of First Instance of Iloilo had no jurisdiction to take cognizance of
the said action for divorce because the defendant therein was a resident of the Province of Negros
Oriental and the plaintiff, as the wife of the defendant, must also be considered a resident of the same
province inasmuch as, under the law, the domicile of the husband is also the domicile of the wife; that
the plaintiff could not acquire a residence in Iloilo before the arriage between her and the defendant was
legally dissolved.

This contention of the petitioner is not tenable. It is true, as a general of law, that the domicile of the wife
follows that of her husband. This rule is founded upon the theoretic identity of person and of interest
between the husband and the wife, and the presumption that, from the nature of the relation, the home
of the one is that of the other. It is intended to promote, strenghten, and secure their interests in this
relation, as it ordinarily exists, where union and harmony prevail. But the authorities are unanimous in
holding that this is not an absolute rule. "Under modern laws it is clear that many exceptions to the rule
that the domicile from of the wife is determined by that of her husband must obtain. Accordingly, the
wife may acquire another and seperate domicile from that of her husband where the theorical unity of
husband and wife is is dissolved, as it is by the institution of divorce proceedings; or where the husband
has given cause for divorce; or where there is a separation of the parties by agreement, or a permanent
separation due to desertion of the wife by the husband or attributable to cruel treatment on the part of
the husband; or where there has been a forfeiture by the wife of the benefit of the husband's domicile."
(9 R. C. L., 545.)

The case of Narcisa Geopano comes under one of the many exceptions above-mentioned, to wit: "Where
the husband has given cause for divorce, the wife may acquire another and seperate domicile from that
of her husband." In support of this proposition there is a formidable array of authorities. We shall content
ourselves with illustrative quotations from a few of them, as follows:

Although the law fixes the domicile of the wife as being that of her husband, universal jurisprudence
recognizes an exception to the rule in the case where the husband's conduct has been such as to furnish
lawful ground for a divorce, which justifies her in leaving him, and, therefore, necessarily authorities her
to live elsewhere and to acquire a separate domicile. Cheever vs. Wilson, 9 Wall. (U. S.), 108; Barber vs.
Barber, 21 How. (U. S.), 582; 2 Bishop, Mar. and Div., 475; Schouler, Hus. and Wife, sec. 574; 5 Am. and
Eng. Encyc. of Law, p. 756." (Smith vs. Smith, 43 La. Ann., 1140, 1146.)

The matrimonial domicile of the wife is usually that of the husband, but if she is justified in leaving him
because his conduct has been such as to entitle her to a divorce, and she thereupon does leave him and
go into another state for the purpose of there permanently residing, she acquires a domicile in the latter
state. (Atherton vs. Atherton, 155 N. Y., 129; 63 Am. St. Rep., 650.)

The law will recognize a wife as having a separate existence, and separate interests, and separate rights,
in those cases where the express object of all proceedings is to show that the relation itself ougth to be
dissolved, or so modified as to establish separate interests, and especially a separate domicile and home,
bed and board being put, apart for the whole, as expressive of the idea of home. Otherwise the parties,
in this respect, would stand upon very unequal ground, it being in the power of the husband to change
his domicile at will, but not in that of the wife. (Harteau vs. Harteau, 14 Pick. [Mass.], 181; 25 Am. Dec.,
372, 375-376.)

Under the pauper laws, and upon general principles, the wife is regarded as having the domicile of her
husband; hut this results from his marital rights, and the duties of the wife. If the husband has forfeited
those rights be misbehavior, and has left and deserted the wife, they may have different domiciles, in the
view of the law regulating divorces. (Harding vs. Alden, 9 Greenl. [Me.], 140; 23 Am. Dec., 549, 552.)

Though as a general principle of law the domicile of the husband is regarded as the domicile of the wife,
according to the prevailing view a wife may acquire a residence or domicile separate from her husband
so as to confer jurisdiction upon the courts of the state, in which her domicile or residence is established,
to decree a divorce in her favor. (9 R. C. L. 400-401, citing various cases.)

The law making the domicile of the husband that of the wife is applicable only to their relations with third
parties, and has no application in cases of actual separation and controversy between themselves as to
the temporary or permanent severance of the marriage ties by judicial proceedings. Vence vs. Vence, 15
How. Pr., 497; Schonwald vs. Schonwald, 55 N. C., 367; Cheever vs. Wilson, 76 U. S. (9 Wall.), 109; 19 L.
ed., 605. (Notes, p. 498, 16 L. R. A.)

In the case of Schonwald vs. Schonwald (55 N. C., 343), the plaintiff tried to do what the petitioner in this
case insists the respondent Narcisa Geopano should have done. In that case the wife filed a bill of divorce
in a court in North Carolina, where her husband resided. She herself had not resided in that state for three
years previous to the filing of the suit, as required by the statute; but she claimed that the domicile of her
husband was also her domicile and, inasmuch as her husband, the defendant, had been a resident of
North Carolina for more than three years, she had also been a resident of that state during that time. The
court dismissed the bill, holding that the legal maxim that "her domicile is that of her husband" would not
avail in the stead of an actual residence. The court said:

It is true that for many purpose the domicile of the husband is the domicile of the wife, but it is not so for
every purpose. The maxim that the domicile of the wife follows that of the husband cannot be applied to
oust the court of its jurisdiction; neither, from party of reasons can it give jurisdiction. (P. 344.)

Turning to the Spanish authorities, we find that they agree with the American authorities in holding that
the maxim or rule that the domicile of the wife follows that of the husband, is not an absolute one.
Scaevola, commenting on article 40 of the Civil Code (which is the only legal provision or authority relied
upon by the petitioner in this case), says:

Although article 64 of the Law of Civil Procedure provides that the domicile of a married woman, not
legally separated from her husband, is that of the latter, yet, when the tacit consent of the husband and
other circumstances justify it, for the purpose of determining jurisdiction, the habitual residence of the
woman should be considered as her domicile where her right may be exercised in accordance with article
63. (Scaevola, Civil Code, p. 354.)

Manresa, commenting upon the same article (art. 40) says:

The domicile of married women not legally separated from their husband shall be that of the latter. This
principle, maintained by the Supreme Court in numerous decisions, was modified in a particular case by
the decision of June 17, 1887, and in conformity with this last decision, three others were afterwards
rendered on October 13, 23, and 28, 1899, in all of which it is declared that when married women as well
as children subject to parental authority live, with the acquiescence of their husbands or fathers, in a place
distinct from where the latter live, they have their own independent domicile, which should be considered
in determining jurisdiction in cases of provisional support guardianship of persons, etc. (1 Manresa, 233.)

If the wife can acquire a separate residence when her husband consents or acquiesces, we see no reason
why the law will not allow her to do so when, as alleged in the present case, the husband unlawfully ejects
her from the conjugal home in order that he may freely indulge in his illicit relations with another woman.
Under no other circumstance could a wife be more justified in establishing a separate residence from that
of her husband. For her to continue living with him, even if he had permitted it, would have been a
condonation of his flagrant breach of fidelity and marital duty. Furthermore, in this case no longer was
there an "identity of persons and of interest between the husband and the wife." Therefore the law
allowed her to acquire a separate residence. For, "it would do violence to the plainest principle of common
sense and common justice of to call this residence of the guilty husband, where the wife is forbidden to
come, . . . the domicile of the wife." (Champon vs. Champon, 40 La. Ann., 28.)
It is clear, therefore, that a married woman may acquire a residence or domicile separate from that of her
husband, during the existence of the marriage, where the husband has given cause for divorce.

II.

We come now to the second question whether or not the respondent judge exceeded his power in
issuing the preliminary injunction complained of by the petitioner.

Section 164 of Act No. 190 provides:

A preliminary injunction may be granted when it is established, in the manner hereinafter provided, to
the satisfaction of the judge granting it:

1. That the plaintiff is entitled to the relief demanded and such relief, or any part thereof, consists in
restraining the commission or continuance of the acts complained of either for a limited period or
perpetually;

2. That the commission or continuance of some act complained of during the litigation would probably
work injustice to the plaintiff;

3. That the defendant is doing, or threatens, on is about to do, or is procuring or suffering to be done,
some act probably in violation of the plaintiff's rights, respecting the subject of the action, and tending to
render the judgment ineffectual.

The petitioner quotes the foregoing section and argues that the respondent Narcisa Geopano was not
entitled to have a preliminary injunction issued against her husband because contrary to the requirement
of the first paragraph of said section, she was not entitled to the relief demanded, which consisted in
restraining the power and authority which the law confers upon the husband; that under articles 1412
and 1413 of the Civil Code, the husband is the manager of the conjugal partnership and, as such, is
empowered to alienate and encumber and conjugal property without the consent of the wife; that neither
could the wife obtain a preliminary injunction under paragraph 3 of said section, upon the ground that
the defendant was committing some acts in violation of the plaintiff's rights, because the plaintiff, as the
wife of the defendant, had nor right to intervene in the administration of the conjugal property, and
therefore no right of hers was violated.

We cannot subscribe to that argument of counsel. The law making the husband the sole administrator of
the property of the conjugal partnership is founded upon necessity and convenience as well as upon the
presumption that, from the very nature of the relating between husband and wife, the former will
promote and not injure the interests of the latter. So long as this harmonious relation, as contemplated
by law, continues, the wife cannot and should not interfere with the husband in his judicious
administration of the conjugal property. But when that relation ceases and, in a proper action, the wife
seeks to dissolve the marriage and to partition the conjugal property, it is just and proper, in order to
protect the interests of the wife, that the husband's power of administration be curtailed, during the
pendency of the action, insofar as alienating or encumbering the conjugal property is concerned.

In her motion for a preliminary injunction, Narcisa Geopano alleged that the defendant was about to
alienate or encumber the property belonging to the conjugal partnerships, with the object of injuring her
interests; and this allegation does not appear to have been controverted by the defendant either in this
court or in the court below. In view of this fact, we are of the opinion that under both paragraphs 2 and 3
of section 164 of Act No. 190, above quoted, the respondent judge was empowered and justified in
granting the preliminary injunction prayed for by her. It cannot be doubted that, if the defendant should
dispose of all or any part of the conjugal property during the pendency of the action for divorce, and
squander or fraudulently conceal the proceeds, that act "would probably work injustice to the plaintiff,"
or that it would probably be "in violation of the plaintiff's rights, respecting the subject of the action, and
tending to render the judgment ineffectual." In this case the plaintiff's rights sought to be protected by
said paragraph 3 is not the right to administer the conjugal property, as counsel for the petitioner
believes, but the right to share in the conjugal property upon the dissolution of the conjugal partnership.

The case under consideration, then, is covered or contemplated by the statute (sec. 164, Act No. 190), so
that there can be no question, in our opinion, as to the power of the respondent judge to issue the
preliminary injunction complained of by the petitioner. Indeed, even in a case not covered by the statute
this court had upheld the power of Court of First Instance to grant preliminary injunctions. In the case
of Manila Electric Railroad and Light Company vs. Del Rosario and Jose (22 Phil., 433), Doroteo Jose asked
for, and the Court of First Instance granted ex parte, a writ of preliminary mandatory injunction directing
the Manila Electric Railroad and Light Company to continue furnishing electricity to Jose. Thereupon the
Light Company filed in this court a petition for the writ of certiorari against Judge S. del Rosario upon the
ground that Courts of First Instance in these Islands are wholly without jurisdiction to issue preliminary
mandatory injunctions under any circumstances whatever. This court denied that petition, determining
the power of the Courts of First Instance to issue preliminary injunction, as follows:

The power to grant preliminary injunctions, both preventative and mandatory, is a logical and necessary
incident of the general powers conferred upon Courts of First Instance in these Islands, as courts of record
of general and unlimited original jurisdiction, both legal and equitable.

Insofar as the statute limits or prescribes the exercise of this power it must be followed: but beyond this,
and in cases not covered by or contemplated by the statute, these courts must exercise their jurisdiction
in the issuance of preliminary injunctions upon sound principles applicable to the circumstances of each
particular case, having in mind the nature of the remedy, and the doctrine and practice established in the
courts upon which our judicial is modeled.

The only limitation upon the power of Courts of First Instance to issue preliminary injunctions, either
mandatory of preventative, is that they are to be issued in the "manner" or according to the "method"
provided therefor in the Code of Civil Procedure.

We conclude, therefore, that in an action for divorce brought by the wife against the husband, in which
the partition of the conjugal property is also prayed for, the wife may obtain a preliminary injunction
against the husband, prohibiting the latter from alienating or encumbering any part of the conjugal
property during the pendency of the action.

It follows from all of the foregoing that the respondent, the Honorable Antonio Villareal, as Auxiliary Judge
sitting in the Court of First Instance of the Province of Iloilo, had jurisdiction to hear and determine the
action for divorce instituted in said court by the respondent Narcisa Geopano, and that he did not exceed
his power and authority in issuing a preliminary injunction against the defendant, prohibiting him from
alienating or encumbering any part of the conjugal property during the pendency of the action.

Therefore, the petition should be and is hereby denied, with costs against the petitioner. So ordered.
17. EN BANC

[G.R. No. L-9667. July 31, 1956.]

LUIS MA. ARANETA, Petitioner, vs. HONORABLE HERMOGENES CONCEPCION, as judge of the Court of First
Instance of Manila, Branch VI and EMMA BENITEZ ARANETA, Respondents.

DECISION

LABRADOR, J.:

The main action was brought by Petitioner against his wife, one of the Respondent herein, for legal
separation on the ground of adultery. After the issues were joined Defendant therein filed an omnibus
petition to secure custody of their three minor children, a monthly support of P5,000 for herself and said
children, and the return of her passport, to enjoin Plaintiff from ordering his hirelings from harassing and
molesting her, and to have Plaintiff therein pay for the fees of her attorney in the action. The petition is
supported by her affidavit. Plaintiff opposed the petition, denying the misconduct imputed to him and
alleging that Defendant had abandoned the children; chan roblesvirtualawlibraryalleging that conjugal
properties were worth only P80,000, not one million pesos as alleged by Defendant; chan
roblesvirtualawlibrarydenying the taking of her passport or the supposed vexation, and contesting her
right to attorneys fees. Plaintiff prayed that as the petition for custody and support cannot be determined
without evidence, the parties be required to submit their respective evidence. He also contended
that Defendant is not entitled to the custody of the children as she had abandoned them and had
committed adultery, that by her conduct she had become unfit to educate her children, being unstable in
her emotions and unable to give the children the love, respect and care of a true mother and without
means to educate them. As to the claim for support, Plaintiff claims that there are no conjugal assets and
she is not entitled to support because of her infidelity and that she was able to support herself. Affidavits
and documents were submitted both in support and against the omnibus petition.

The Respondent judge resolved the omnibus petition, granting the custody of the children
to Defendant and a monthly allowance of P2,300 for support for her and the children, P300 for a house
and P2,000 as attorneys fees. Upon refusal of the judge to reconsider the order, Petitionerfiled the
present petition for certiorari against said order and for mandamus to compel the Respondent judge to
require the parties to submit evidence before deciding the omnibus petition. We granted a writ of
preliminary injunction against the order.

The main reason given by the judge, for refusing Plaintiffs request that evidence be allowed to be
introduced on the issues, is the prohibition contained in Article 103 of the Civil Code, which reads as
follows:chanroblesvirtuallawlibrary

ART. 103. An action for legal separation shall in no case be tried before six months shall have elapsed
since the filing of the petition.

Interpreting the spirit and policy of the provision the trial judge says:chanroblesvirtuallawlibrary

This provision of the code is mandatory. This case cannot be tried within the period of six months from
the filing of the complaint. The court understands that the introduction of any evidence, be it on the
merits of the case or on any incident, is prohibited. The law, up to the last minute, exerts efforts at
preserving the family and the home from utter ruin. Interpreting the intent of said article, the court
understands that every step it should take within the period of six months above stated should be taken
toward reconciling the parties. Admitting evidence now will make reconciliation difficult if not impossible.
In this case the court should act as if nothing yet had happened. The children must be given for custody
to him or her who by family custom and tradition is the custodian of the children. The court should ignore
that Defendant had committed any act of adultery or the Plaintiff, any act of cruelty to his wife. The status
quo of the family must be restored as much as possible. In this country, unlike perhaps in any other
country of the globe, a family or a home is a petite corporation. The father is the administrator who earns
the family funds, dictates rules in the home for all to follow, and protects all members of his family. The
mother keeps home, keeps children in her company and custody, and keeps the treasure of that family.
In a typical Filipino family, the wife prepares home budget and makes little investment without the
knowledge of her husband. A husband who holds the purse is un-Filipino. He is shunned in Filipino
community. The court therefore, in taking action on petition No. 1 should be guided by the above
considerations. (pp. 116-117, Record on Appeal.)

It may be noted that since more than six months have elapsed since the filing of the petition the question
offered may not be allowed. It is, however, believed that the reasons for granting the preliminary
injunction should be given that the scope of the article cited may be explained.

It is conceded that the period of six months fixed therein Article 103 (Civil Code) is evidently intended as
a cooling off period to make possible a reconciliation between the spouses. The recital of their grievances
against each other in court may only fan their already inflamed passions against one another, and the
lawmaker has imposed the period to give them opportunity for dispassionate reflection. But this practical
expedient, necessary to carry out legislative policy, does not have the effect of overriding other provisions
such as the determination of the custody of the children and alimony and support pendente lite according
to the circumstances. (Article 105, Civil Code.) The law expressly enjoins that these should be determined
by the court according to the circumstances. If these are ignored or the courts close their eyes to actual
facts, rank in justice may be caused.

Take the case at bar, for instance. Why should the court ignore the claim of adultery by Defendantin the
face of express allegations under oath to that effect, supported by circumstantial evidence consisting of
letter the authenticity of which cannot be denied. And why assume that the children are in the custody of
the wife, and that the latter is living at the conjugal dwelling, when it is precisely alleged in the petition
and in the affidavits, that she has abandoned the conjugal abode? Evidence of all these disputed
allegations should be allowed that the discretion of the court as to the custody and alimony pendente lite
may be lawfully exercised.

The rule is that all the provisions of the law even if apparently contradictory, should be allowed to stand
and given effect by reconciling them if necessary.

The practical inquiry in litigation is usually to determine what a particular provision, clause or word
means. To answer it one must proceed as he would with any other composition construe it with
reference to the leading idea or purpose of the whole instrument. A statute is passed as a whole and not
in parts or sections and is animated by one general purpose and intend. Consequently, each part of section
should be construed in connection with every other part or section so as to produce a harmonious whole.
Thus it is not proper to confine interpretation to the one section to be construed. (Southerland, Statutory
Construction section 4703, pp. 336-337.)

Thus the determination of the custody and alimony should be given effect and force provided it does not
go to the extent of violating the policy of the cooling off period. That is, evidence not affecting the cause
of the separation, like the actual custody of the children, the means conducive to their welfare and
convenience during the pendency of the case, these should be allowed that the court may determine
which is best for their custody.

The writ prayed for is hereby issued and the Respondent judge or whosoever takes his place is ordered to
proceed on the question of custody and support pendente lite in accordance with this opinion. The courts
order fixing the alimony and requiring payment is reversed. Without costs.

18. SOMOSA-RAMOS vs. VAMENTAGR No. L-34132, July 29, 1972

FACTS: Petitioner Lucy Somosa- Ramos, filed an action for legal separation based on the ground of
concubinageon the part of respondent Clemen Ramos. She also sought for the issuance of a writ of
preliminarymandatory injunction for the return to her of her paraphernal and exclusive property. The
hearing on themotion was opposed by respondent Ramos alleging that if the motion for preliminary
injunction wereheard, the prospect of reconciliation of the spouses would become even more dim.
Respondent judgeVamonte thereafter granted the motion of respondent Ramos to suspend the hearing
of the petition for awrit of mandatory preliminary injunction.Hence, this petition for certiorari.

ISSUE: Whether or not Article 103 of the Civil Code prohibiting the hearing of an action for legalseparation
before the lapse of six months from the filing of the petition, would likewise preclude the courtfrom acting
on a motion for preliminary mandatory injunction applied for as an ancillary remedy to such asuit

HELD: NO.The court where the action is pending according to Article 103 is to remain passive. It must let
the partiesalone in the meanwhile. It is precluded from hearing the suit. There is then some plausibility
for the viewof the lower court that an ancillary motion such as one for preliminary mandatory injunction
is not to beacted on. If it were otherwise, there would be a failure to abide by the literal language of such
codalprovision. . That the law, however, remains cognizant of the need in certain cases for judicial power
toassert itself is discernible from what is set forth in the following article. It reads thus: "After the filing of
thepetition for legal separation, the spouse shall be entitled to live separately from each other and
managetheir respective property. The husband shall continue to manage the conjugal partnership
property but if the court deems it proper, it may appoint another to manage said property, in which case
theadministrator shall have the same rights and duties as a guardian and shall not be allowed to dispose
of the income or of the capital except in accordance with the orders of the court."

There would appear to bethen a recognition that the question of management of their respective property
need not be leftunresolved even during such six-month period. An administrator may even be appointed
for themanagement of the property of the conjugal partnership. The absolute limitation from which the
courtsuffers under the preceding article is thereby eased. The parties may in the meanwhile be heard.
There is justification then for the petitioner's insistence that her motion for preliminary mandatory
injunction shouldnot be ignored by the lower court. There is all the more reason for this response from
respondent Judge,considering that the husband whom she accused of concubinage and an attempt
against her life would inthe meanwhile continue in the management of what she claimed to be her
paraphernal property, anassertion that was not specifically denied by him.

19. LERMA VS CA 61 SCRA 440FACTS:

Teodoro E. Lerma and Concepcion Diaz were married on May 19, 1951. On August 22,1969 the petitioner
filed a complaint for adultery against the respondent and a certain TeodoroRamirez and on September
26, 1972 the court of First Instance of Rizal decided the adulterycase of the respondent and found her and
her co-accused, Teodoro Ramirez, guilty of thecharge, sentencing them to a term of imprisonment. During
the pendency of the adultery caseagainst the respondent, wife On November 18, 1969 the respondent
filed with the lower court,a complaint against the petitioner for legal separation and/or separation of
properties, custodyof their children and support, with an urgent petition for support

pendente lite

for her and theiryoungest son, Gregory, who was then and until now is in her custody. The
respondent'scomplaint for legal separation is based on two grounds: concubinage and attempt against
herlife. The application for support

pendente lite

was granted in an order dated December 24,1969, which was amended in an order dated February 15,
1970. The petitioner filed hisopposition to the respondent's application for support

pendente lite

, setting up as defense theadultery charge he had filed against the respondentOn March 12, 1970 the
petitioner filed with respondent Court of Appeals a petition for certiorariand prohibition with preliminary
injunction to annul the aforementioned orders on the groundthat they were issued with grave abuse of
discretion. The next day the respondent court gavedue course to the petition and issued a writ of
preliminary injunction to stop Judge Lucianofrom enforcing said orders. The respondent court, in its
decision of October 8, 1970, set aside the assailed orders andgranted the petitioner an opportunity to
present evidence before the lower court in support of his defense against the application for support

pendente lite

. The respondent moved to reconsider the decision on the ground that the petitioner had notasked that
he be allowed to present evidence in the lower court. The respondent court, in itsresolution of January
20, 1971, set aside the decision of October 8 and rendered another,dismissing the petition. This is now
the subject of the instant proceeding for review.

ISSUE:

W/N the lower court acted with grave abused of discretion in granting the respondentsapplication for
support

pendente lite
without giving the petitioner an opportunity to presentevidence in support of his defense against the said
application.

HELD:

Court of Appeals January 20, 1971 resolution and the orders of respondent Juvenile andDomestic
Relations Court herein complained of, dated December 24, 1969 and February 15,1970, all are set aside
and their enforcement enjoined, without prejudice to such judgment asmay be rendered in the pending
action for legal separation between the parties. The right to separate support or maintenance, even from
the conjugal partnership property,presupposes the existence of a justifiable cause for the spouse claiming
such right to liveseparately. This is implicit in Article 104 of the Civil Code, which states that after the filing
of the petition for legal separation the spouses shall be entitled to live separately from eachother. A
petition in bad faith, such as that filed by one who is himself or herself guilty of an actwhich constitutes a
ground for legal separation at the instance of the other spouse, cannot beconsidered as within the
intendment of the law granting separate support. In fact under Article303 of the same Code the obligation
to give support shall cease "when the recipient, be he aforced heir or not, has committed some act which
gives rise to disinheritance;" and underArticle 921 one of the causes for disinheriting a spouse is "when
the spouse has given causefor legal separation." The loss of the substantive right to support in such a
situation isincompatible with any claim for support

pendente lite

20. G.R. No. L-37720 March 27, 1933

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
URSULA SENSANO and MARCELO RAMOS, defendants-appellants.

Emilio L. Medina for appellants.

Attorney-General Jaranilla for appellee.

BUTTE, J.:

The appellants were sentenced by the Court of First Instance of Ilocos Norte for the crime of adultery to
three years, six months and twenty-one days of prision correccional and appealed to this court, assigning
the following error: "The court below erred in not holding that the offended husband contested to the
adultery committed by his wife Ursula Sensano in that he refused to live with her after she extinguished
her previous sentence for the same offense, and by telling her then that she could go where she wanted
to and do what she pleased, and by his silence for seven years notwithstanding that he was informed of
said adultery."

The facts briefly stated as follows:

Ursula Sensano and Mariano Ventura were married on April 29, 1919. They had one child. Shortly after
the birth of his child, the husband left his wife to go to the Province of Cagayan where he remained for
three years without writing to his wife or sending her anything for the support of herself and their son.
Poor and illiterate, without relatives upon whom she could call, she struggled for an existence for herself
and her son until a fatal day when she met the accused Marcelo Ramos who took her and the child to live
with him. On the return of the husband (in 1924), he filed a charge against his wife and Marcelo Ramos
for adultery and both were sentenced to four months and one day of arresto mayor. The court, in its
decision, stated the following: "In the opinion of the court, the husband of the accused has been
somewhat cruel in his treatment of his wife having abandoned her as he did." After completing her
sentence, the accused left her paramour. She thereupon appealed to this municipal president and the
justice of the peace to send for her husband so that she might ask his pardon and beg him to take her
back. At the house of the president she begged his pardon and promised to be a faithful wife it he would
take care her back. He refused to pardon her to live with her and said she could go where she wished, that
he would have nothing more to do with her, and she could do as she pleased. Abandoned for the second
time, she and her child went back to her coaccused Marcelo Ramos (this was in the year 1924) and they
have lived with him ever since. The husband, knowing that she resumed living with her codefendant in
1924, did nothing to interfere with their relations or to assert his rights as husband. Shortly thereafter he
left for the Territory of Hawaii where she remained for seven years completely abandoning his said wife
and child. On his return to these Islands, he presented the second charge of adultery here involved with
the sole purpose, as he declared, of being able to obtain a divorce under the provisions of Act No. 2710.

Article 344 of the Revised Penal Code, paragraphs 1 and 2, are as follows:

Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness.
The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the
offended spouse.

The offended party cannot institute criminal prosecution without including both the guilty parties, if they
are both alive, nor, in any case, if he shall have consented or pardoned the offenders.

Apart from the fact that the husband in this case was assuming a mere pose when he signed the complaint
as the "offended" spouse, we have come to the conclusion that the evidence in this case and his conduct
warrant the inference that he consented to the adulterous relations existing between the accused and
therefore he is not authorized by law to institute this criminal proceeding.

We cannot accept the argument of the Attorney-General that the seven years of acquiescence on his part
in the adultery of his wife is explained by his absence from the Philippine Islands during which period it
was impossible for him to take any action against the accused. There is no merit in the argument that it
was impossible for the husband to take any action against the accused during the said seven years.

The judgment below is reversed with costs de oficio.

Street and Ostrand, JJ., concur.

21. G.R. No. L-48183 November 10, 1941

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RODOLFO A. SCHNECKENBURGER, ET AL., defendants-appellants.

Cardenas & Casal for appellants.

Office of the Solicitor-General Ozaeta and Acting Solicitor Luciano for appellee.

MORAN, J.:
On March 16, 1926, the accused Rodolfo A. Schneckenburger married the compliant Elena Ramirez
Cartagena and after seven years of martial life, they agreed, for reason of alleged incompatibility of
character, to live separately each other and on May 25, 1935 they executed a document which in part
recites as follows:

Que ambos comparecientes convienen en vivir separados el uno del otro por el resto de su vida y se
comprometen, y obligan reciprocamente a no molastarse ni intervenir ni mezclarse bajo ningun concepto
en la vida publica o privada de los mismos, entre si, quendado cada uno de los otorgantes en completa
libertad de accion en calquier acto y todos concepto.

On June 15, 1935, the accused Schneckenburger, without leaving the Philippines, secured a decree of
divorce from the civil court of Juarez, Bravos District, State of Chihuahua, Mexico. On May 11, 1936, he
contracted another marriage with his co-accused, Julia Medel, in the justice of the peace court of
Malabon, Rizal, and since then they lived together as husband and wife in the city of Manila. Because of
the nullity of the divorce decreed by the Mexico Court, complaint herein instituted two actions against
the accused, one for bigamy in the Court of First Instance of Rizal and the other concubinage in the court
of First Instance of Manila. The first culminated in the conviction of the accused for which he was
sentenced to penalty of two months and one day of arresto mayor. On the trial for the offense of
concubinage accused interposed the plea of double jeopardy, and the case was dismissed; but, upon
appeal by the fiscal, this Court held the dismissal before the trial to be premature this was under the
former procedure and without deciding the question of double jeopardy, remanded the case to the trial
court for trial on the merits. Accused was convicted of concubinage through reckless imprudence and
sentenced to a penalty of two months and one day of arresto mayor. Hence this appeal.

As to appellant's plea of double jeopardy, it need only be observed that the office of bigamy for which he
was convicted and that of concubinage for which he stood trial in the court below are two distinct offenses
in law and in fact as well as in the mode of their prosecution. The celebration of the second marriage, with
the first still existing, characterizes the crime of bigamy; on the other hand, in the present case, mere
cohabitation by the husband with a woman who is not his wife characterizes the crime of concubinage.
The first in an offense against civil status which may be prosecuted at the instance of the state; the second,
an offense against chastity and may be prosecuted only at the instance of the offended party. And no rule
is more settled in law than that, on the matter of double jeopardy, the test is not whether the defendant
has already been tried for the same act, but whether he has been put in jeopardy for the same offense.
(Diaz v. U. S., 223 U. S., 422; People v. Cabrera, 43 Phil., 82)

Upon the other hand, we believe and so hold that the accused should be acquitted of the crime of
concubinage. The document executed by and between the accused and the complaint in which they
agreed to be "en completa libertad de accion en cualquier acto y en todos conceptos," while illegal for the
purpose for which it was executed, constitutes nevertheless a valid consent to the act of concubinage
within the meaning of section 344 of the Revised Penal Code. There can be no doubt that by such
agreement, each party clearly intended to forego to illicit acts of the other.

We said before (People vs. Guinucod, 58 Phil., 621) that the consent which bars the offended party from
instituting a criminal prosecution in cases of adultery, concubinage, seduction, abduction, rape and acts
of lasciviousness is that which has been given expressly or impliedly after the crime has been committed.
We are now convinced that this is a narrow view in way warranted by the language, as well as the manifest
policy, of the law. The second paragraph of article 344 of the Revised Penal Code provides:
The offended party cannot institute criminal prosecution without including both the guilty parties, if they
are both alive, nor, in any case, if he shall have consented or pardoned the offenders. (Emphasis ours.)

As the term "pardon" unquestionably refers to the offense after its commission, "consent" must have
been intended agreeably with its ordinary usage, to refer to the offense prior to its commission. No logical
difference can indeed be perceived between prior and subsequent consent, for in both instances as the
offended party has chosen to compromise with his/her dishonor, he/she becomes unworthy to come to
court and invoke its aid in the vindication of the wrong. For instance, a husband who believers his wife
another man for adultery, is as unworthy, if not more, as where, upon acquiring knowledge of the adultery
after its commission, he says or does nothing. We, therefore, hold that the prior consent is as effective as
subsequent consent to bar the offended party from prosecuting the offense.

In this arriving at this conclusion we do not with to be misconstrued as legalizing an agreement to do an

illicit act, in violation of law. Our view must be taken only to mean that an agreement of the tenor entered
into between the parties herein, operates, within the plain language and manifest policy of the law, to bar
the offended party from prosecuting the offense. If there is anything morally condemnatory in a situation
of his character, the remedy lies not with us but with the legislative department of the government. What
the law is, not what it should be, defines the limits of our authority.

22. G.R. No. L-10699 October 18, 1957

WILLIAM H. BROWN, plaintiff-appellant,

vs.
JUANITA YAMBAO, defendant-appellee.

Jimenez B. Buendia for appellant.

Assistant City Fiscal Rafel A. Jose for appellee.

REYES, J.B.L., J.:

On July 14, 1955, William H. Brown filed suit in the Court of First Instance of Manila to obtain legal
separation from his lawful wife Juanita Yambao. He alleged under oath that while interned by the
Japanese invaders, from 1942 to 1945, at the University of Sto. Tomas internment camp, his wife engaged
in adulterous relations with one Carlos Field of whom she begot a baby girl that Brown learned of his wifes
misconduct only in 1945, upon his release from internment; that thereafter the spouse lived separately
and later executed a document (Annex A ) liquidating their conjugal partnership and assigning certain
properties to the erring wife as her share. The complaint prayed for confirmation of the liquidation
agreement; for custody of the children issued of the marriage; that the defendant be declared disqualified
to succeed the plaintiff; and for their remedy as might be just and equitable.

Upon petition of the plaintiff, the court subsequently declared the wife in default, for failure to answer in
due time, despite service of summons; and directed the City Fiscal or his representatives to

investigate, in accordance with Article 101 of the Civil Code, whether or not a collusion exists between
the parties and to report to this Court the result of his investigation within fifteen (15) days from receipt
of copy of this order. The City Fiscal or his representative is also directed to intervene in the case in behalf
of the State. (Rec. App. p. 9).
As ordered, Assistant City Fiscal Rafael Jose appeared at the trial, and cross-examined plaintiff Brown. His
questions (strenuously objected to by Brown's counsel) elicited the fact that after liberation, Brown had
lived maritally with another woman and had begotten children by her. Thereafter, the court rendered
judgment denying the legal separation asked, on the ground that, while the wife's adultery was
established, Brown had incurred in a misconduct of similar nature that barred his right of action under
Article 100 of the new Civil Code, providing:

ART. 100. The legal separation may be claimed only by the innocent spouse, provided there has been no
condonation or of consent to the adultery or concubinage. Where both spouses are offenders, a legal
separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation
shall cause the dismissal of the petition.

that there had been consent and connivance, and because Brown's action had prescribed under Article
102 of the same Code:

ART. 102 An action for legal separation cannot be filed except within one year from and after the date on
which the plaintiff became cognizant of the cause and within five years from and after date when such
cause occurred.

since the evidence showed that the learned of his wife's infidelity in 1945 but only filed action in 1945.

Brown appeared to this Court, assigning the following errors:

The court erred in permitting the Assistant Fiscal Rafel Jose of Manila to act as counsel for the defendant,
who defaulted.

The court erred in declaring that there was condonation of or consent to the adultery.

The court erred in dismissing the plaintiff's complaint.

Appellant Brown argues that in cross-examining him with regard to his marital relation with Lilia Deito,
who was not his wife, the Assistant Fiscal acted as consel for the defaulting wife, "when the power of the
prosecuting officer is limited to finding out whether or not there is collusion, and if there is no collusion,
which is the fact in the case at bar, to intervene for the state which is not the fact in the instant case, the
truth of the matter being that he intervened for Juanita Yambao, the defendant-appellee, who is private
citizen and who is far from being the state.".

The argument is untenable. Collusion in matrimonial cases being "the act of married persons in procuring
a divorce by mutual consent, whether by preconcerted commission by one of a matrimonial offense, or
by failure, in pursuance of agreement to defend divorce proceedings" (Cyclopedia Law Dictionary; Nelson,
Divorce and Separation, Section 500), it was legitimate for the Fiscal to bring to light any circumstances
that could give rise to the inference that the wife's default was calculated, or agreed upon, to enable
appellant to obtain the decree of legal separation that he sought without regard to the legal merits of his
case. One such circumstance is obviously the fact of Brown's cohabitation with a woman other than his
wife, since it bars him from claiming legal separation by express provision of Article 100 of the new Civil
Code. Wherefore, such evidence of such misconduct, were proper subject of inquiry as they may justifiably
be considered circumstantial evidence of collusion between the spouses.
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 cannot be made depend upon the parties
themselves (Civil Code, Article 52; Adong vs, Cheong Gee, 43 Phil, 43; Ramirez vs. Gmur 42 Phil. 855; Goitia
vs. Campos, 35 Phil. 252). It is consonant with this policy that the injury 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.

The court below also found, and correctly held that the appellant's action was already barred, because
Brown did not petition for legal separation proceedings until ten years after he learned of his wife's
adultery, which was upon his release from internment in 1945. Under Article 102 of the new Civil Code,
action for legal separation can not be filed except within one (1) year from and after the plaintiff became
cognizant of the cause and within five years from and after the date when such cause occurred.
Appellant's brief does not even contest the correctness of such findings and conclusion.

It is true that the wife has not interposed prescription as a defense. Nevertheless, the courts can take
cognizance thereof, because actions seeking a decree of legal separation, or annulment of marriage,
involve public interest and it is the policy of our law that no such decree be issued if any legal obstacles
thereto appear upon the record.

Hence, there being at least two well established statutory grounds for denying the remedy sought
(commission of similar offense by petitioner and prescription of the action), it becomes unnecesary to
delve further into the case and ascertain if Brown's inaction for ten years also evidences condonation or
connivance on his part. Even if it did not, his situation would not be improved. It is thus needless to discuss
the second assignment of error.

The third assignment of error being a mere consequence of the others must necessarily fail with them.

The decision appealed from is affirmed, with costs against appellant. So ordered.

23. G.R. No. L-13553 February 23, 1960

JOSE DE OCAMPO, petitioner,

vs.
SERAFINA FLORENCIANO, respondent.

Joselito J. Coloma for petitioner.

BENGZON, J.:

Action for legal separation by Jose de Ocampo against his wife Serafina, on the ground of adultery. The
court of first instance of Nueva Ecija dismissed it. The Court of Appeals affirmed, holding there was
confession of judgment, plus condonation or consent to the adultery and prescription.

We granted certiorari to consider the application of articles 100 and 101 of the New Civil Code, which for
convenience are quoted herewith:

ART. 100.The legal separation may be claimed only by the innocent spouse, provided there has been no
condonation of or consent to the adultery or concubinage. Where both spouses are offenders, a legal
separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation
shall cause the dismissal of the petition.

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 record shows that on July 5, 1955, the complaint for legal separation was filed. As amended, it
described their marriage performed in 1938, and the commission of adultery by Serafina, in March 1951
with Jose Arcalas, and in June 1955 with Nelson Orzame.

Because the defendant made no answer, the court defaulted her, and pursuant to Art. 101 above, directed
the provincial fiscal to investigate whether or not collusion existed between the parties. The fiscal
examined the defendant under oath, and then reported to the Court that there was no collusion. The
plaintiff presented his evidence consisting of the testimony of Vicente Medina, Ernesto de Ocampo, Cesar
Enriquez, Mateo Damo, Jose de Ocampo and Capt. Serafin Gubat.

According to the Court of Appeals, the evidence thus presented shows that "plaintiff and defendant were
married in April 5, 1938 by a religious ceremony in Guimba, Nueva Ecija, and had lived thereafter as
husband and wife. They begot several children who are now living with plaintiff. In March, 1951, plaintiff
discovered on several occasions that his wife was betraying his trust by maintaining illicit relations with
one Jose Arcalas. Having found the defendant carrying marital relations with another man plaintiff sent
her to Manila in June 1951 to study beauty culture, where she stayed for one year. Again, plaintiff
discovered that while in the said city defendant was going out with several other men, aside from Jose
Arcalas. Towards the end of June, 1952, when defendant had finished studying her course, she left plaintiff
and since then they had lived separately.

"On June 18, 1955, plaintiff surprised his wife in the act of having illicit relations with another man by the
name of Nelson Orzame. Plaintiff signified his intention of filing a petition for legal separation, to which
defendant manifested her conformity provided she is not charged with adultery in a criminal action.
Accordingly, plaintiff filed on July 5, 1955, a petition for legal separation."

The Court of Appeals held that the husband's right to legal separation on account of the defendant's
adultery with Jose Arcalas had prescribed, because his action was not filed within one year from March
1951 when plaintiff discovered her infidelity. (Art. 102, New Civil Code) We must agree with the Court of
Appeals on this point.1

As to the adultery with Nelson Orzame, the appellate court found that in the night of June 18, 1955, the
husband upon discovering the illicit connection, expressed his wish to file a petition for legal separation
and defendant readily agreed to such filing. And when she was questioned by the Fiscal upon orders of
the court, she reiterated her conformity to the legal separation even as she admitted having had sexual
relations with Nelson Orzame. Interpreting these facts virtually to mean a confession of judgment the
Appellate Court declared that under Art. 101, legal separation could not be decreed.
As we understand the article, it does not exclude, as evidence, any admission or confession made by the
defendant outside of the court. It merely prohibits a decree of separation upon a confession of judgment.
Confession of judgment usually happens when the defendant appears in court and confesses the right of
plaintiff to judgment or files a pleading expressly agreeing to the plaintiff's demand.2 This is not occur.

Yet, even supposing that the above statement of defendant constituted practically a confession of
judgment, inasmuch as there is evidence of the adultery independently of such statement, the decree
may and should be granted, since it would not be based on her confession, but upon evidence presented
by the plaintiff. What the law prohibits is a judgment based exclusively or mainly on defendant's
confession. If a confession defeats the action ipso facto, any defendant who opposes the separation will
immediately confess judgment, purposely to prevent it.

The mere circumstance that defendants told the Fiscal that she "like also" to be legally separated from
her husband, is no obstacle to the successful prosecution of the action. When she refused to answer the
complaint, she indicated her willingness to be separated. Yet, the law does not order the dismissal.
Allowing the proceeding to continue, it takes precautions against collusion, which implies more than
consent or lack of opposition to the agreement.

Needless to say, when the court is informed that defendant equally desires the separation and admitted
the commission of the offense, it should be doubly careful lest a collusion exists. (The Court of Appeals
did not find collusion.)

Collusion in divorce or legal separation means the agreement.

. . . between husband and wife for one of them to commit, or to appear to commit, or to be represented
in court as having committed, a matrimonial offense, or to suppress evidence of a valid defense, for the
purpose of enabling the other to obtain a divorce. This agreement, if not express, may be implied from
the acts of the parties. It is a ground for denying the divorce. (Griffiths vs. Griffiths, 69 N. J. Eq. 689 60 Atl.
1099; Sandoz vs. Sandoz, 107 Ore. 282, 214 Pas. 590.).

In this case, there would be collusion if the parties had arranged to make it appear that a matrimonial
offense had been committed although it was not, or if the parties had connived to bring about a legal
separation even in the absence of grounds therefor.

Here, the offense of adultery had really taking place, according to the evidence. The defendant could not
havefalsely told the adulterous acts to the Fiscal, because her story might send her to jail the moment her
husband requests the Fiscal to prosecute. She could not have practiced deception at such a personal risk.

In this connection, it has been held that collusion may not be inferred from the mere fact that the guilty
party confesses to the offense and thus enables the other party to procure evidence necessary to prove
it. (Williams vs. Williams, [N. Y.] 40 N. E. (2d) 1017; Rosenweig vs. Rosenweig, 246 N. Y. Suppl. 231;
Conyers, vs. Conyers, 224 S. W. [2d] 688.).

And proof that the defendant desires the divorce and makes no defense, is not by itself collusion.
(Pohlman vs. Pohlman, [N. J.] 46 Atl. Rep. 658.).

We do not think plaintiff's failure actively to search for defendant and take her home (after the latter had
left him in 1952) constituted condonation or consent to her adulterous relations with Orzame. It will be
remembered that she "left" him after having sinned with Arcalas and after he had discovered her dates
with other men. Consequently, it was not his duty to search for her to bring her home. Hers was the
obligation to return.

Two decisions3 are cited wherein from apparently similar circumstances, this Court inferred the husband's
consent to or condonation of his wife's misconduct. However, upon careful examination, a vital difference
will be found: in both instances, the husband had abandoned his wife; here it was the wife who "left" her
husband.

Wherefore, finding no obstacles to the aggrieved husband's petition we hereby reverse the appealed
decision and decree a legal separation between these spouse, all the consequent effects. Costs of all
instances against Serafina Florenciano. So ordered.

24. [G.R. No. L-9325. May 30, 1956.]

ROSARIO MATUTE, Petitioner, vs. HON. HIGINIO B. MACADAEG, as Judge of the Court of First Instance of
Manila, Branch X, and ARMANDO MEDEL, Respondents.

DECISION

CONCEPCION, J.:

In an action for legal separation brought by Armando Medel against Rosario Matute, upon the ground of
adultery committed with his brother and her brother-in-law, Ernesto Medel which action was docketed
as civil case No. 14190 of the Court of First Instance of Manila decision was, on November 6, 1952,
rendered by the latter, finding Rosario guilty of the charge against her, decreeing said legal separation,
and awarding to Armando the custody of their four (4) minor children, Florencia, Manuel, Carmelita and
Benito, all surnamed Medel, then 12, 10, 8 and 4 years of age, respectively. Thereafter, Armando went to
the United States, leaving the children in the City of Davao under the care of his sister Pilar Medel, in
whose house Rosario subsequently lived in order to be with her offspring. Armando returned to the
Philippines late in 1954. At the close of the then current school year, during which the children were
enrolled in a school in Davao, or in March, 1955, they joined their father in Cebu. With his permission,
Rosario brought the children to Manila in April, 1955, to attend the funeral of her father. Armando alleges
that he consented thereto on condition that she would return the children to him within two (2) weeks.
However, Rosario did not do so. Instead, on June 10, 1955, she filed, in said civil case No. 14190, a motion
the prayer of which is of the following tenor:chanroblesvirtuallawlibrary

WHEREFORE, movant respectfully prays this Honorable Court, after due

hearing:chanroblesvirtuallawlibrary

(1) to issue an order awarding the custody of the above-named children to the herein movant, their
mother, in deference to the preference expressed by the children (Sec. 6, Rule 100, Rules of Court); chan
roblesvirtualawlibraryand

(2) to order Armando Medel, father of the said minor children, to support said children by paying their
school fees and giving them a reasonable allowance both items in an amount not less than P200 a month.

Said motion was based upon the ground that the children three (3) of whom, namely, Florencia, Manuel
and Carmelita, were then 16, 14 and 12 years of age, respectively do not want to go back to their father,
because he is living with a woman other than their mother. Armando opposed this motion and
countered with a petition to declare and punish Rosario for contempt of court, in view of her failure and
alleged refusal to restore the custody of their children to him. After due hearing the Court of First Instance
of Manila, presided over by Hon. Higinio B. Macadaeg, Judge, issued an order, dated June 29, 1955,
absolving Rosario from the charge of contempt of court, she having secured Armandos consent before
bringing the children to Manila, but denying her motion for their custody and ordering her to deliver them
to Armando within twenty-four (24) hours from notice. The dispositive part of said order
reads:chanroblesvirtuallawlibrary

IN VIEW OF THE FOREGOING, motion for the custody of the minor children, Florencia, Manuel, Carmelita,
and Benito, all surnamed Medel, is hereby denied. Rosario Matute is hereby ordered to deliver to
Armando Medel the persons of the said minor children, within twenty-four (24) hours from receipt of
copy of this Order.

Let copies of this Order be served immediately by the Sheriff of this Court, not only on the lawyers
appearing in this case, but also on the parties themselves.

Thereupon, Rosario instituted, against Armando and Judge Macadaeg, the present action for certiorari
and prohibition with preliminary injunction, upon the ground that said order of June 29, 1955, had been
issued with grave abuse of discretion, and that there is no other plain, adequate and speedy remedy in
the ordinary course of law. The prayer in her petition, is as follows:chanroblesvirtuallawlibrary

WHEREFORE, Petitioner respectfully prays this Honorable Court to issue a writ of preliminary injunction
upon Petitioners filing a bond in such sum as this Honorable Court may fix, ordering Respondents, their
attorneys, agents and other persons acting by and under their orders to cease and desist from enforcing
in any way the order of the Respondent Court dated June 19, 1965, and after hearing, to annul the said
Order and to award the custody of the children to your Petitioner.

Petitioner likewise prays for such other or further relief as may be just and equitable, without costs.

Upon the filing of the petition, we issued the writ of preliminary injunction therein prayed for, without
bond.

Briefly stated, Petitioner herein maintains that the children should be under her custody,
because:chanroblesvirtuallawlibrary (1) she is their legitimate mother and they wish to stay with her, not
their father Armando Medel; chan roblesvirtualawlibrary(2) three (3) of the children are over ten (10)
years of age, and, hence, their aforementioned wish must, pursuant to Rule 100, section 6, of the Rules
of Court, be heeded, unless the parent so chosen be unfit to take charge of them by reason of moral
depravity, habitual drunkenness, incapacity or poverty; chan roblesvirtualawlibrary(3) the act of
infidelity of which she had been found guilty in the decision of November 6, 1952, does not involve moral
depravity; chan roblesvirtualawlibrary(4) in any event, it is a thing of the past, not a present reality; chan
roblesvirtualawlibrary(5) Respondent Armando Medel is now unfit to have the children under his care, for
he is living maritally with a woman by the name of Paz Jesusa Concepcion; chan roblesvirtualawlibraryand
(6) although he had married the latter, after securing in the United States a decree of divorce dissolving
his marriage with Petitioner herein, said decree is null and void and, accordingly, he is guilty of bigamy.
In the present action, we do not deem it necessary to pass upon the merits of such pretense. The case
before us is one of certiorari and prohibition, governed by sections 1 and 2 of Rule 67 of the Rules of
Court, reading:chanroblesvirtuallawlibrary

SECTION 1. Petition for certiorari. When any tribunal, board, or officer exercising judicial functions,
has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion and there is no
appeal, nor any plain, speedy, end adequate remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings of such tribunal, board, or officer as the
law requires, with costs.

SEC. 2. Petition for prohibition. When the proceedings of any tribunal corporation board, or person,
whether exercising functions judicial or ministerial, are without or in excess of its or his jurisdiction, or
with grave abuse of discretion, and there is no appeal or any other plain, speedy, and adequate remedy
in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court
alleging the facts with certainty and praying that judgment be rendered commanding the Defendant to
desist from further proceedings in the action or matter specified therein, with costs.

Pursuant to these provisions, neither the writ of certiorari nor that of prohibition lies unless the act
complained of has been performed without or in excess of jurisdiction or with grave abuse of
discretion. There is no question but that Respondent Judge had jurisdiction to pass upon the issue raised
by Petitioners motion of June 10, 1955, for custody of the children, and the petition
of Respondent Medel, dated June 22, 1955, to declare Petitioner guilty of contempt of court, to
wit:chanroblesvirtuallawlibrary whether said custody should be retained by Respondent Medel, as
adjudged in the decision of November 6, 1952, or should be given to Petitioner herein. Which ever
alternative taken by Respondent Judge would not vitiate his choice as being without or in excess of
jurisdiction. Whatever mistakes, if any, he may have committed in the appraisal of the situation on
which we do not express our view in determining the best solution to said issue or which one of the
litigants is best qualified or least disqualified to take charge of the children, would, at best, constitute
merely errors of judgment. They are not errors of jurisdiction, but errors in the exercise of the
jurisdiction which the lower court admittedly had. Such errors do not affect the legality or validity of the
order complained of. They may be reviewed by appeal, not by writ of certiorari or prohibition. (Comments
on the Rules of Court, by Moran, Vol. II, pp. 167 and 168).

Neither does the aforementioned order of June 29, 1955, involve a grave abuse of discretion for it merely
enforces the award made in the decision of November 6, 1952, which is admittedly final and executory. It
is true that, insofar as it refers to the custody of the minor children, said decision is never final, in the
sense that it is subject to review at any time that the Court may deem it for the best interest of said
minors. It is no less true, however, that, unless and until reviewed and modified, said award must stand.
No such modification having been made, at yet, RespondentJudge had, not only the authority; chan
roblesvirtualawlibrarybut, also, the duty to execute and implement said award.

Furthermore, by virtue of said decision of November 6, 1952, Respondent had, admittedly, the custody of
said minors. Petitioner merely obtained his permission to bring them to Manila, for the purpose of
attending the funeral of their maternal grandfather, which took place in April, 1955.
Thus, Petitioner obtained and has the physical possession of the minors in a precarious manner. She holds
it in the name, on behalf and by authority of Respondent Medel, whose agent she, in effect, is. He may,
therefore, demand their return at any time, and she is bound to comply immediately with such demand.
She cannot even question his authority to make it, although she is free to seek a review of the order or
decision awarding the custody of the minors to him, and to ask that they be placed under her charge.

Again, it is conceded that children over ten (10) years of age, whose parents are divorced or living
separately, may choose which parent they prefer to live with, unless the parent chosen is unfit to take
charge of their care by reason of moral depravity, habitual drunkenness, incapacity or poverty (Rule
100, section 6, Rules of Court). Without deciding whether the adultery committed by
herein Petitioner with her own brother-in-law involves moral depravity, it is clear to our mind that the
affirmative assumption implicit in the order complained of cannot be characterized as an abuse of
discretion, much less a grave one.

Lastly, said order further declares:chanroblesvirtuallawlibrary

cralaw The facts remains that Defendant-movant is without means of livelihood and, according to her
own admission, she lives on the charity of her brothers. She has no home of her own to offer to her
children, but only she would shelter them under the roof of her brothers.

and the substantial accuracy of this statement is not contested. We are not prepared to hold, that a grave
abuse of discretion was committed when the lower court impliedly deduced, from these circumstances,
that poverty, among other causes, rendered Petitioner unfit to take charge of her children or made it
unwise to place them under her care.

Wherefore, without prejudice to such appropriate action as Petitioner may deem fit to take for the
purpose of securing a review of the order of Respondent Judge of June 29, 1955, or a modification of the
award made in the decision of November 6, 1952, relative to the custody of the children, or both, the
petition is denied and the case dismissed. The writ of preliminary injunction heretofore issued is hereby
dissolved, with costs against the Petitioner. It is SO ORDERED.

25. G.R. No. L-18008 October 30, 1962

ELISEA LAPERAL, petitioner,

vs.
REPUBLIC OF THE PHILIPPINES, oppositor.

Martin B. Laurea and Associates for petitioner.

Office of the Solicitor General for oppositor.

BARRERA, J.:

On May 10, 1960, Elisea Laperal filed in the Court of First Instance of Baguio (Sp Proc. No. 433) a petition
which reads:

1. That petitioner has been a bona fide resident of the City of Baguio for the last three years prior to the
date of the filing of this petition;

2. That petitioner's maiden name is ELISEA LAPERAL; that on March 24, 1939, she married Mr. Enrique R.
Santamaria; that in a partial decision entered on this Honorable Court on January 18, 1958, in Civil Case
No. 356 of this Court, entitled 'Enrique R. Santamaria vs. Elisea L. Santamaria' Mr. Enrique Santamaria was
given a decree of legal separation from her; that the said partial decision is now final;
3. That during her marriage to Enrique R. Santamaria, she naturally used, instead of her maiden name,
that of Elisea L. Santamaria; that aside from her legal separation from Enrique R. Santamaria, she has also
ceased to live with him for many years now;

4. That in view of the fact that she has been legally separated from Mr. Enrique R. Santamaria and has
likewise ceased to live with him for many years, it is desirable that she be allowed to change her name
and/or be permitted to resume using her maiden name, to wit: ELISEA LAPERAL.

WHEREFORE, petitioner respectfully prayed that after the necessary proceedings are had, she be allowed
to resume using her maiden name of Elisea Laperal.

The petition was opposed by the City Attorney of Baguio on the ground that the same violates the
provisions of Article 370 (should be 372) of the Civil Code, and that it is not sanctioned by the Rules of
Court.

In its decision of October 31, 1960, the court denied the petition for the reason that Article 372 of the Civil
Code requires the wife, even after she is decreed legally separated from her husband, to continue using
the name and surname she employed before the legal separation. Upon petitioner's motion, however,
the court, treating the petition as one for change of name, reconsidered its decision and granted the
petition on the ground that to allow petitioner, who is a businesswoman decreed legally separated from
her husband, to continue using her married name would give rise to confusion in her finances and the
eventual liquidation of the conjugal assets. Hence, this appeal by the State.

The contention of the Republic finds support in the provisions of Article 372 of the New Civil Code which
reads:

ART. 372. When legal separation has been granted, the wife shall continue using her name and surname
employed before the legal separation. (Emphasis supplied)

Note that the language of the statute is mandatory that the wife, even after the legal separation has been
decreed, shall continue using her name and surname employed before the legal separation. This is so
because her married status is unaffected by the separation, there being no severance of the vinculum. It
seems to be the policy of the law that the wife should continue to use the name indicative of her
unchanged status for the benefit of all concerned.

The appellee contends, however, that the petition is substantially for change of her name from Elisea L.
Santamaria, the one she has been using, since her marriage, to Elisea Laperal, her maiden name, giving as
reason or cause therefor her being legally separated from the husband Enrique R. Santamaria, and the
fact that they have ceased to live together for many years.

There seems to be no dispute that in the institution of these proceedings, the procedure prescribed in
Rule 103 of the Rules of Court for change of name has been observed. But from the petition quoted in full
at the beginning of these opinion, the only reason relied upon for the change of name is the fact that
petitioner is legally separated from her husband and has, in fact, ceased to live with him for many years.
It is doubtful, to say the least, whether Rule 103 which refers to change of name in general, may prevail
over the specific provisions of Article 372 of the New Civil Code with regards to married women legally
separated from their husbands. Even, however, applying Rule 103 to this case, the fact of legal separation
alone which is the only basis for the petition at bar is, in our opinion, not a sufficient ground to justify
a change of the name of herein petitioner, for to hold otherwise would be to provide an easy
circumvention of the mandatory provisions of Article 372.

It is true that in the second decision which reconsidered the first it is stated that as the petitioner owns
extensive business interests, the continued used of her husband surname may cause undue confusion in
her finances and the eventual liquidation of the conjugal assets. This finding is however without basis. In
the first place, these were not the causes upon which the petition was based; hence, obviously no
evidence to this effect had been adduced. Secondly, with the issuance of the decree of legal separation in
1958, the conjugal partnership between petitioner and her husband had automatically been dissolved
and liquidated. (Art. 106[2], Civil Cod). Consequently, there could be no more occasion for an eventual
liquidation of the conjugal assets.

WHEREFORE, the order of the lower court of December 1, 1960, granting the petition, is hereby set aside
and the petition dismissed. Without costs. So ordered.