G.R. No. 103047 September 2, 1994
Through her lawyer's
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
COURT OF APPEALS AND ANGELINA M. CASTRO, respondents.
PUNO, J.:
The case at bench originated from a petition filed by private respondent
Angelina M. Castro in the Regional Trial Court of Quezon City seeking a
judicial declaration of nullity of her marriage to Edwin F. Cardenas.1 As
ground therefor, Castro claims that no marriage license was ever issued
to them prior to the solemnization of their marriage.
Despite notice, defendant Edwin F. Cardenas failed to file his answer.
Consequently, he was declared in default. Trial proceeded in his
absence.
The controlling facts are undisputed:
On June 24, 1970, Angelina M. Castro and Edwin F. Cardenas were
married in a civil ceremony performed by Judge Pablo M. Malvar, City
Court Judge of Pasay City. The marriage was celebrated without the
knowledge of Castro's parents. Defendant Cardenas personally attended
to the processing of the documents required for the celebration of the
marriage, including the procurement of the marriage, license. In fact, the
marriage contract itself states that marriage license no. 3196182 was
issued in the name of the contracting parties on June 24, 1970 in Pasig,
Metro Manila.
The couple did not immediately live together as husband and wife since
the marriage was unknown to Castro's parents. Thus, it was only in
March 1971, when Castro discovered she was pregnant, that the couple
decided to live together. However, their cohabitation lasted only for four
(4) months. Thereafter, the couple parted ways. On October 19, 1971,
Castro gave birth. The baby was adopted by Castro's brother, with the
consent of Cardenas.
The baby is now in the United States. Desiring to follow her daughter,
Castro wanted to put in order her marital status before leaving for the
States. She thus consulted a lawyer, Atty. Frumencio E. Pulgar,
regarding the possible annulment of her marriage.
efforts, they discovered that there was no marriage license issued to
Cardenas prior to the celebration of their marriage.
As proof, Angelina Castro offered in evidence a certification from the Civil
Register of Pasig, Metro Manila. It reads:
February 20, 1987
TO WHOM IT MAY CONCERN:
This is to certify that the names EDWIN F. CARDENAS
and ANGELINA M. CASTRO who were allegedly married
in the Pasay City Court on June 21, 1970 under an
alleged (s)upportive marriage license
no. 3196182 allegedly issued in the municipality on June
20, 1970 cannot be located as said license no. 3196182
does not appear from our records.
Issued upon request of Mr. Ed Atanacio.er
Castro testified that she did not go to the civil registrar of Pasig on or
before June 24, 1970 in order to apply for a license. Neither did she sign
any application therefor. She affixed her signature only on the marriage
contract on June 24, 1970 in Pasay City.
The trial court denied the petition. 2 It held that the above certification was
inadequate to establish the alleged non-issuance of a marriage license
prior to the celebration of the marriage between the parties. It ruled that
the "inability of the certifying official to locate the marriage license is not
conclusive to show that there was no marriage license issued."
Unsatisfied with the decision, Castro appealed to respondent appellate
court. She insisted that the certification from the local civil registrar
sufficiently established the absence of a marriage license.
As stated earlier, respondent appellate court reversed the Decision of the
trial court. 3 It declared the marriage between the contracting parties null
and void and directed the Civil Registrar of Pasig to cancel the subject
marriage contract.
Hence this petition for review on certiorari.
Petitioner Republic of the Philippines urges that respondent appellate
court erred when it ruled that the certification issued by the civil registrar
that marriage license no. 3196182 was not in their record adequately
proved that no such license was ever issued. Petitioner also faults the
respondent court for relying on the self-serving and uncorroborated
testimony of private respondent Castro that she had no part in the
procurement of the subject marriage license. Petitioner thus insists that
the certification and the uncorroborated testimony of private respondent
are insufficient to overthrow the legal presumption regarding the validity
of a marriage.
Petitioner also points that in declaring the marriage between the parties
as null and void, respondent appellate court disregarded the presumption
that the solemnizing officer, Judge Pablo M. Malvar, regularly performed
his duties when he attested in the marriage contract that marriage license
no. 3196182 was duly presented to him before the solemnization of the
subject marriage.
The issues, being interrelated, shall be discussed jointly.
The core issue presented by the case at bench is whether or not the
documentary and testimonial evidence presented by private respondent
are sufficient to establish that no marriage license was issued by the Civil
Registrar of Pasig prior to the celebration of the marriage of private
respondent to Edwin F. Cardenas.
We affirm the impugned Decision.
At the time the subject marriage was solemnized on June 24, 1970, the
law governing marital relations was the New Civil Code. The
law 4 provides that no marriage shall be solemnized without a marriage
license first issued by a local civil registrar. Being one of the essential
requisites of a valid marriage, absence of a license would render the
marriage void ab initio. 5
Petitioner posits that the certification of the local civil registrar of due
search and inability to find a record or entry to the effect that marriage
license no. 3196182 was issued to the parties is not adequate to prove its
non-issuance.
We hold otherwise. The presentation of such certification in court is
sanctioned by Section 29, Rule 132 of the Rules of Court, viz.:
Sec. 29. Proof of lack of record. A written statement
signed by an officer having custody of an official record or
by his deputy, that after diligent search, no record or entry
of a specified tenor is found to exist in the records of his
office, accompanied by a certificate as above provided, is
admissible as evidence that the records of his office
contain no such record or entry.
The above Rule authorized the custodian of documents to certify that
despite diligent search, a particular document does not exist in his office
or that a particular entry of a specified tenor was not to be found in a
register. As custodians of public documents, civil registrars are public
officers charged with the duty, inter alia, of maintaining a register book
where they are required to enter all applications for marriage licenses,
including the names of the applicants, the date the marriage license was
issued and such other relevant data. 6
The certification of "due search and inability to find" issued by the civil
registrar of Pasig enjoys probative value, he being the officer charged
under the law to keep a record of all data relative to the issuance of a
marriage license. Unaccompanied by any circumstance of suspicion and
pursuant to Section 29, Rule 132 of the Rules of Court, a certificate of
"due search and inability to find" sufficiently proved that his office did not
issue marriage license no. 3196182 to the contracting parties.
The fact that private respondent Castro offered only her testimony in
support of her petition is, in itself, not a ground to deny her petition. The
failure to offer any other witness to corroborate her testimony is mainly
due to the peculiar circumstances of the case. It will be remembered that
the subject marriage was a civil ceremony performed by a judge of a city
court. The subject marriage is one of those commonly known as a "secret
marriage" a legally non-existent phrase but ordinarily used to refer to a
civil marriage celebrated without the knowledge of the relatives and/or
friends of either or both of the contracting parties. The records show that
the marriage between Castro and Cardenas was initially unknown to the
parents of the former.
Surely, the fact that only private respondent Castro testified during the
trial cannot be held against her. Her husband, Edwin F. Cardenas, was
duly served with notice of the proceedings and a copy of the petition.
Despite receipt thereof, he chose to ignore the same. For failure to
answer, he was properly declared in default. Private respondent cannot
be faulted for her husband's lack of interest to participate in the
proceedings. There was absolutely no evidence on record to show that
there was collusion between private respondent and her husband
Cardenas.

It is noteworthy to mention that the finding of the appellate court that the
marriage between the contracting parties is null and void for lack of a
marriage license does not discount the fact that indeed, a spurious
marriage license, purporting to be issued by the civil registrar of Pasig,
may have been presented by Cardenas to the solemnizing officer.

In fine, we hold that, under the circumstances of the case, the

documentary and testimonial evidence presented by private respondent
Castro sufficiently established the absence of the subject marriage
license.

IN VIEW WHEREOF, the petition is DENIED there being no showing of

any reversible error committed by respondent appellate court.
G.R. No. 104818 September 17, 1993
ROBERTO DOMINGO, petitioner,
vs.
COURT OF APPEALS and DELIA SOLEDAD AVERA represented by
her Attorney-in-Fact MOISES R. AVERA, respondents.
ROMERO, J.:
The instant petition seeks the reversal of respondent court's ruling finding
no grave abuse of discretion in the lower court's order denying
petitioner's motion to dismiss the petition for declaration of nullity of
marriage and separation of property.
On May 29, 1991, private respondent Delia Soledad A. Domingo filed a
petition before the Regional Trial Court of Pasig entitled "Declaration of
Nullity of Marriage and Separation of Property" against petitioner Roberto
Domingo. The petition which was docketed as Special Proceedings No.
1989-J alleged among others that: they were married on November 29,
1976 at the YMCA Youth Center Bldg., as evidenced by a Marriage
Contract Registry No. 1277K-76 with Marriage License No. 4999036
issued at Carmona, Cavite; unknown to her, he had a previous marriage
with one Emerlina dela Paz on April 25, 1969 which marriage is valid and
still existing; she came to know of the prior marriage only sometime in
1983 when Emerlina dela Paz sued them for bigamy; from January 23
1979 up to the present, she has been working in Saudi Arabia and she
used to come to the Philippines only when she would avail of the one-
month annual vacation leave granted by her foreign employer since 1983
up to the present, he has been unemployed and completely dependent
upon her for support and subsistence; out of her personal earnings, she
purchased real and personal properties with a total amount of
approximately P350,000.00, which are under the possession and
administration of Roberto; sometime in June 1989, while on her one-
month vacation, she discovered that he was cohabiting with another
woman; she further discovered that he had been disposing of some of
her properties without her knowledge or consent; she confronted him
about this and thereafter appointed her brother Moises R. Avera as her
attorney-in-fact to take care of her properties; he failed and refused to
turn over the possession and administration of said properties to her
brother/attorney-in-fact; and he is not authorized to administer and
possess the same on account of the nullity of their marriage. The petition
prayed that a temporary restraining order or a writ of preliminary
injunction be issued enjoining Roberto from exercising any act of
administration and ownership over said properties; their marriage be
declared null and void and of no force and effect; and Delia Soledad be
declared the sole and exclusive owner of all properties acquired at the
time of their void marriage and such properties be placed under the
proper management and administration of the attorney-in-fact.
Petitioner filed a Motion to Dismiss on the ground that the petition stated
no cause of action. The marriage being void ab initio, the petition for the
declaration of its nullity is, therefore, superfluous and unnecessary. It
added that private respondent has no property which is in his possession.
On August 20, 1991, Judge Maria Alicia M. Austria issued an Order
denying the motion to dismiss for lack of merit. She explained:
Movant argues that a second marriage contracted after a
first marriage by a man with another woman is illegal and
void (citing the case of Yap v. Court of Appeals, 145
SCRA 229) and no judicial decree is necessary to
establish the invalidity of a void marriage (citing the cases
of People v. Aragon, 100 Phil. 1033; People v. Mendoza,
95 Phil. 845). Indeed, under the Yap case there is no
dispute that the second marriage contracted by
respondent with herein petitioner after a first marriage
with another woman is illegal and void. However, as to
whether or not the second marriage should first be
judicially declared a nullity is not an issue in said case. In
the case of Vda. de Consuegra v. GSIS, the Supreme
Court ruled in explicit terms, thus:
And with respect to the right of the second
wife, this Court observed that although the
second marriage can be presumed to be
void ab initio as it was celebrated while
the first marriage was still subsisting, still
there is need for judicial declaration of its
nullity. (37 SCRA 316, 326)
The above ruling which is of later vintage
deviated from the previous rulings of the
Supreme Court in the aforecited cases of
Aragon and Mendoza.
 Finally, the contention of respondent
movant that petitioner has no property in
his possession is an issue that may be
determined only after trial on the merits.1
A motion for reconsideration was filed stressing the erroneous application
of Vda. de Consuegra v. GSIS2 and the absence of justiciable
controversy as to the nullity of the marriage. On September 11, 1991,
Judge Austria denied the motion for reconsideration and gave petitioner
fifteen (15) days from receipt within which to file his answer.
Instead of filing the required answer, petitioner filed a special civil action
of certiorari and mandamus on the ground that the lower court acted with
grave abuse of discretion amounting to lack of jurisdiction in denying the
motion to dismiss.
On February 7, 1992, the Court of Appeals3 dismissed the petition. It
explained that the case of Yap v. CA4 cited by petitioner and that
of Consuegra v. GSIS relied upon by the lower court do not have
relevance in the case at bar, there being no identity of facts because
these cases dealt with the successional rights of the second wife while
the instant case prays for separation of property corollary with the
declaration of nullity of marriage. It observed that the separation and
subsequent distribution of the properties acquired during the union can
be had only upon proper determination of the status of the marital
relationship between said parties, whether or not the validity of the first
marriage is denied by petitioner. Furthermore, in order to avoid
duplication and multiplicity of suits, the declaration of nullity of marriage
may be invoked in this proceeding together with the partition and
distribution of the properties involved. Citing Articles 48, 50 and 52 of the
Family Code, it held that private respondent's prayer for declaration of
absolute nullity of their marriage may be raised together with other
incidents of their marriage such as the separation of their properties.
Lastly, it noted that since the Court has jurisdiction, the alleged error in
refusing to grant the motion to dismiss is merely one of law for which the
remedy ordinarily would have been to file an answer, proceed with the
trial and in case of an adverse decision, reiterate the issue on appeal.
The motion for reconsideration was subsequently denied for lack of
merit.5
Hence, this petition.
The two basic issues confronting the Court in the instant case are the
following.
First, whether or not a petition for judicial declaration of a void marriage is
necessary. If in the affirmative, whether the same should be filed only for
purposes of remarriage.
Second, whether or not SP No. 1989-J is the proper remedy of private
respondent to recover certain real and personal properties allegedly
belonging to her exclusively.
Petitioner, invoking the ruling in People v. Aragon6 and People
v. Mendoza,7 contends that SP. No. 1989-J for Declaration of Nullity of
Marriage and Separation of Property filed by private respondent must be
dismissed for being unnecessary and superfluous. Furthermore, under
his own interpretation of Article 40 of the Family Code, he submits that a
petition for declaration of absolute nullity of marriage is required only for
purposes of remarriage. Since the petition in SP No. 1989-J contains no
allegation of private respondent's intention to remarry, said petition
should therefore, be dismissed.
On the other hand, private respondent insists on the necessity of a
judicial declaration of the nullity of their marriage, not for purposes of
remarriage, but in order to provide a basis for the separation and
distribution of the properties acquired during coverture.
There is no question that the marriage of petitioner and private
respondent celebrated while the former's previous marriage with one
Emerlina de la Paz was still subsisting, is bigamous. As such, it is from
the beginning.8 Petitioner himself does not dispute the absolute nullity of
their marriage.9
The cases of People v. Aragon and People v. Mendoza relied upon by
petitioner are cases where the Court had earlier ruled that no judicial
decree is necessary to establish the invalidity of a void, bigamous
marriage. It is noteworthy to observe that Justice Alex Reyes, however,
dissented on these occasions stating that:
Though the logician may say that where the former
marriage was void there would be nothing to dissolve, still
it is not for the spouses to judge whether that marriage
was void or not. That judgment is reserved to the courts. .
. . 10
This dissenting opinion was adopted as the majority position in
subsequent cases involving the same issue. Thus, in Gomez
v. Lipana, 11 the Court abandoned its earlier ruling in
the Aragon and Mendoza cases. In reversing the lower court's order
forfeiting the husband's share of the disputed property acquired during
the second marriage, the Court stated that "if the nullity, or annulment of
the marriage is the basis for the application of Article 1417, there is need
for a judicial declaration thereof, which of course contemplates an action
for that purpose."
Citing Gomez v. Lipana, the Court subsequently held in Vda. de
Consuegra v. Government Service Insurance System, that "although the
second marriage can be presumed to be void ab initio as it was
celebrated while the first marriage was still subsisting, still there is need
for judicial declaration of such nullity."
In Tolentino v. Paras,12 however, the Court turned around and applied
the Aragon and Mendoza ruling once again. In granting the prayer of the
first wife asking for a declaration as the lawful surviving spouse and the
correction of the death certificate of her deceased husband, it explained
that "(t)he second marriage that he contracted with private respondent
during the lifetime of his first spouse is null and void from the beginning
and of no force and effect. No judicial decree is necessary to establish
the invalidity of a void marriage."
However, in the more recent case of Wiegel v. Sempio-Diy 13 the Court
reverted to the Consuegra case and held that there was "no need of
introducing evidence about the existing prior marriage of her first
husband at the time they married each other, for then such a marriage
though void still needs according to this Court a judicial declaration of
such fact and for all legal intents and purposes she would still be
regarded as a married woman at the time she contracted her marriage
with respondent Karl Heinz Wiegel."
Came the Family Code which settled once and for all the conflicting
jurisprudence on the matter. A declaration of the absolute nullity of a
marriage is now explicitly required either as a cause of action or a ground
for defense. 14 Where the absolute nullity of a previous marriage is sought
to be invoked for purposes of contracting a second marriage, the sole
basis acceptable in law for said projected marriage be free from legal
infirmity is a final judgment declaring the previous marriage void. 15
The Family Law Revision Committee and the Civil Code Revision
Committee 16 which drafted what is now the Family Code of the
Philippines took the position that parties to a marriage should not be
allowed to assume that their marriage is void even if such be the fact but
must first secure a judicial declaration of the nullity of their marriage
before they can be allowed to marry again. This is borne out by the
following minutes of the 152nd Joint Meeting of the Civil Code and Family
Law Committees where the present Article 40, then Art. 39, was
discussed.
B. Article 39.
The absolute nullity of a marriage may be
invoked only on the basis of a final
judgment declaring the marriage void,
except as provided in Article 41.
Justice Caguioa remarked that the above provision
should include not only void but also voidable marriages.
He then suggested that the above provision be modified
as follows:
The validity of a marriage may be invoked
only . . .
Justice Reyes (J.B.L. Reyes), however, proposed that
they say:
The validity or invalidity of a marriage may
be invoked
only . . .
On the other hand, Justice Puno suggested that they say:
The invalidity of a marriage may be
invoked only . . .
Justice Caguioa explained that his idea is that one cannot
determine for himself whether or not his marriage is valid
and that a court action is needed. Justice Puno
accordingly proposed that the provision be modified to
read:
 The invalidity of a marriage may be
invoked only on the basis of a final
judgment annulling the marriage or
declaring the marriage void, except as
provided in Article 41.
Justice Caguioa remarked that in annulment, there is no
question. Justice Puno, however, pointed out that, even if
it is a judgment of annulment, they still have to produce
the judgment.
Justice Caguioa suggested that they say:
The invalidity of a marriage may be
invoked only on the basis of a final
judgment declaring the marriage invalid,
except as provided in Article 41.
Justice Puno raised the question: When a marriage is
declared invalid, does it include the annulment of a
marriage and the declaration that the marriage is void?
Justice Caguioa replied in the affirmative. Dean Gupit
added that in some judgments, even if the marriage is
annulled, it is declared void. Justice Puno suggested that
this matter be made clear in the provision.
Prof. Baviera remarked that the original idea in the
provision is to require first a judicial declaration of a void
marriage and not annullable marriages, with which the
other members concurred. Judge Diy added that
annullable marriages are presumed valid until a direct
action is filed to annul it, which the other members
affirmed. Justice Puno remarked that if this is so, then the
phrase "absolute nullity" can stand since it might result in
confusion if they change the phrase to "invalidity" if what
they are referring to in the provision is the declaration that
the marriage is void.
Prof. Bautista commented that they will be doing away
with collateral defense as well as collateral attack. Justice
Caguioa explained that the idea in the provision is that
there should be a final judgment declaring the marriage
void and a party should not declare for himself whether or
not the marriage is void, while the other members
affirmed. Justice Caguioa added that they are, therefore,
trying to avoid a collateral attack on that point. Prof.
Bautista stated that there are actions which are brought
on the assumption that the marriage is valid. He then
asked: Are they depriving one of the right to raise the
defense that he has no liability because the basis of the
liability is void? Prof. Bautista added that they cannot say
that there will be no judgment on the validity or invalidity
of the marriage because it will be taken up in the same
proceeding. It will not be a unilateral declaration that, it is
a void marriage. Justice Caguioa saw the point of Prof.
Bautista and suggested that they limit the provision to
remarriage. He then proposed that Article 39 be reworded
as follows:
The absolute nullity of a marriage for
purposes of remarriage may be invoked
only on the basis of final judgment . . .
Justice Puno suggested that the above be modified as
follows:
The absolute nullity of a previous marriage
may be invoked for purposes of
establishing the validity of a subsequent
marriage only on the basis of a final
judgment declaring such previous
marriage void, except as provided in
Article 41.
Justice Puno later modified the above as follows:
For the purpose of establishing the validity
of a subsequent marriage, the absolute
nullity of a previous marriage may only be
invoked on the basis of a final judgment
declaring such nullity, except as provided
in Article 41.
Justice Caguioa commented that the above provision is
too broad and will not solve the objection of Prof.
Bautista. He proposed that they say:
 For the purpose of entering into a
subsequent marriage, the absolute nullity
of a previous marriage may only be
invoked on the basis of a final judgment
declaring such nullity, except as provided
in Article 41.
Justice Caguioa explained that the idea in the above
provision is that if one enters into a subsequent marriage
without obtaining a final judgment declaring the nullity of a
previous marriage, said subsequent marriage is void ab
initio.
After further deliberation, Justice Puno suggested that
they go back to the original wording of the provision as
follows:
The absolute nullity of a previous marriage
may be invoked for purposes of
remarriage only on the basis of a final
judgment declaring such previous
marriage void, except as provided in
Article 41. 17
In fact, the requirement for a declaration of absolute nullity of a marriage
is also for the protection of the spouse who, believing that his or her
marriage is illegal and void, marries again. With the judicial declaration of
the nullity of his or her first marriage, the person who marries again
cannot be charged with bigamy. 18
Just over a year ago, the Court made the pronouncement that there is a
necessity for a declaration of absolute nullity of a prior subsisting
marriage before contracting another in the recent case of Terre
v. Terre. 19 The Court, in turning down the defense of respondent Terre
who was charged with grossly immoral conduct consisting of contracting
a second marriage and living with another woman other than complainant
while his prior marriage with the latter remained subsisting, said that "for
purposes of determining whether a person is legally free to contract a
second marriage, a judicial declaration that the first marriage was null
and void ab initio is essential."
As regards the necessity for a judicial declaration of absolute nullity of
marriage, petitioner submits that the same can be maintained only if it is
for the purpose of remarriage. Failure to allege this purpose, according to
petitioner's theory, will warrant dismissal of the same.
Article 40 of the Family Code provides:
Art. 40. The absolute nullity of a previous marriage may
be invoked for purposes of remarriage on the basis solely
of a final judgment declaring such previous marriage void.
(n)
Crucial to the proper interpretation of Article 40 is the position in the
provision of the word "solely." As it is placed, the same shows that it is
meant to qualify "final judgment declaring such previous marriage void."
Realizing the need for careful craftsmanship in conveying the precise
intent of the Committee members, the provision in question, as it finally
emerged, did not state "The absolute nullity of a previous marriage may
be invoked solely for purposes of remarriage . . .," in which case "solely"
would clearly qualify the phrase "for purposes of remarriage." Had the
phraseology been such, the interpretation of petitioner would have been
correct and, that is, that the absolute nullity of a previous marriage may
be invoked solely for purposes of remarriage, thus rendering irrelevant
the clause "on the basis solely of a final judgment declaring such
previous marriage void."
That Article 40 as finally formulated included the significant clause
denotes that such final judgment declaring the previous marriage void
need not be obtained only for purposes of remarriage. Undoubtedly, one
can conceive of other instances where a party might well invoke the
absolute nullity of a previous marriage for purposes other than
remarriage, such as in case of an action for liquidation, partition,
distribution and separation of property between the erstwhile spouses, as
well as an action for the custody and support of their common children
and the delivery of the latters' presumptive legitimes. In such cases,
evidence needs must be adduced, testimonial or documentary, to prove
the existence of grounds rendering such a previous marriage an absolute
nullity. These need not be limited solely to an earlier final judgment of a
court declaring such previous marriage void. Hence, in the instance
where a party who has previously contracted a marriage which remains
subsisting desires to enter into another marriage which is legally
unassailable, he is required by law to prove that the previous one was an
absolute nullity. But this he may do on the basis solely of a final judgment
declaring such previous marriage void.
This leads us to the question: Why the distinction? In other words, for
purposes of remarriage, why should the only legally acceptable basis for
declaring a previous marriage an absolute nullity be a final judgment
declaring such previous marriage void? Whereas, for purposes other
than remarriage, other evidence is acceptable?
Marriage, a sacrosanct institution, declared by the Constitution as an
"inviolable social institution, is the foundation of the family;" as such, it
"shall be protected by the State."20 In more explicit terms, the Family
Code characterizes it as "a special contract of permanent union between
a man and a woman entered into in accordance with law for the
establishment of conjugal, and family life." 21 So crucial are marriage and
the family to the stability and peace of the nation that their "nature,
consequences, and incidents are governed by law and not subject to
stipulation . . ." 22 As a matter of policy, therefore, the nullification of a
marriage for the purpose of contracting another cannot be accomplished
merely on the basis of the perception of both parties or of one that their
union is so defective with respect to the essential requisites of a contract
of marriage as to render it void ipso jure and with no legal effect and
nothing more. Were this so, this inviolable social institution would be
reduced to a mockery and would rest on very shaky foundations indeed.
And the grounds for nullifying marriage would be as diverse and far-
ranging as human ingenuity and fancy could conceive. For such a social
significant institution, an official state pronouncement through the courts,
and nothing less, will satisfy the exacting norms of society. Not only
would such an open and public declaration by the courts definitively
confirm the nullity of the contract of marriage, but the same would be
easily verifiable through records accessible to everyone.
That the law seeks to ensure that a prior marriage is no impediment to a
second sought to be contracted by one of the parties may be gleaned
from new information required in the Family Code to be included in the
application for a marriage license, viz, "If previously married, how, when
and where the previous marriage was dissolved and annulled." 23
Reverting to the case before us, petitioner's interpretation of Art. 40 of the
Family Code is, undoubtedly, quite restrictive. Thus, his position that
private respondent's failure to state in the petition that the same is filed to
enable her to remarry will result in the dismissal of SP No. 1989-J is
untenable. His misconstruction of Art. 40 resulting from the misplaced
emphasis on the term "solely" was in fact anticipated by the members of
the Committee.
Dean Gupit commented the word "only" may be
misconstrued to refer to "for purposes of remarriage."
Judge Diy stated that "only" refers to "final
judgment." Justice Puno suggested that they say "on the
basis only of a final judgment." Prof. Baviera suggested
that they use the legal term "solely" instead of "only,"
which the Committee approved. 24 (Emphasis supplied)
Pursuing his previous argument that the declaration for absolute nullity of
marriage is unnecessary, petitioner suggests that private respondent
should have filed an ordinary civil action for the recovery of the properties
alleged to have been acquired during their union. In such an eventuality,
the lower court would not be acting as a mere special court but would be
clothed with jurisdiction to rule on the issues of possession and
ownership. In addition, he pointed out that there is actually nothing to
separate or partition as the petition admits that all the properties were
acquired with private respondent's money.
The Court of Appeals disregarded this argument and concluded that "the
prayer for declaration of absolute nullity of marriage may be raised
together with the other incident of their marriage such as the separation
of their properties."
When a marriage is declared void ab initio, the law states that the final
judgment therein shall provide for "the liquidation, partition and
distribution of the properties of the spouses, the custody and support of
the common children, and the delivery of their presumptive legitimes,
unless such matters had been adjudicated in previous judicial
proceedings." 25 Other specific effects flowing therefrom, in proper cases,
are the following:
Art. 43. xxx xxx xxx
(2) The absolute community of property or the conjugal
partnership, as the case may be, shall be dissolved and
liquidated, but if either spouse contracted said marriage in
bad faith, his or her share of the net profits of the
community property or conjugal partnership property shall
be forfeited in favor of the common children or, if there
are none, the children of the guilty spouse by a previous
marriage or, in default of children, the innocent spouse;
 (3) Donations by reason of marriage shall remain valid,
except that if the donee contracted the marriage in bad
faith, such donations made to said donee are revoked by
operation of law;

(4) The innocent spouse may revoke the designation of

the other spouse who acted in bad faith as a beneficiary
in any insurance policy, even if such designation be
stipulated as irrevocable; and

(5) The spouse who contracted the subsequent marriage

in bad faith shall be disqualified to inherit from the
innocent spouse by testate and intestate succession. (n)

Art. 44. If both spouses of the subsequent marriage acted

in bad faith, said marriage shall be void ab initio and all
donations by reason of marriage and testamentary
disposition made by one in favor of the other are revoked
by operation of law. (n) 26

Based on the foregoing provisions, private respondent's ultimate prayer

for separation of property will simply be one of the necessary
consequences of the judicial declaration of absolute nullity of their
marriage. Thus, petitioner's suggestion that in order for their properties to
be separated, an ordinary civil action has to be instituted for that purpose
is baseless. The Family Code has clearly provided the effects of the
declaration of nullity of marriage, one of which is the separation of
property according to the regime of property relations governing them. It
stands to reason that the lower court before whom the issue of nullity of a
first marriage is brought is likewise clothed with jurisdiction to decide the
incidental questions regarding the couple's properties. Accordingly, the
respondent court committed no reversible error in finding that the lower
court committed no grave abuse of discretion in denying petitioner's
motion to dismiss SP No. 1989-J.

WHEREFORE, the instant petition is hereby DENIED. The decision of

respondent Court dated February 7, 1992 and the Resolution dated
March 20, 1992 are AFFIRMED.
 [A.M. No. MTJ-96-1088. July 19, 1996]
RODOLFO G. NAVARRO, complainant, vs. JUDGE HERNANDO
C. DOMAGTOY, respondent.
DECISION
ROMERO, J.:
The complainant in this administrative case is the Municipal
Mayor of Dapa, Surigao del Norte, Rodolfo G. Navarro. He has
submitted evidence in relation to two specific acts committed by
respondent Municipal Circuit Trial Court Judge Hernando Domagtoy,
which, he contends, exhibits gross misconduct as well as inefficiency
in office and ignorance of the law.
First, on September 27, 1994, respondent judge solemnized the
wedding between Gaspar A. Tagadan and Arlyn F. Borga, despite the
knowledge that the groom is merely separated from his first wife.
Second, it is alleged that he performed a marriage ceremony
between Floriano Dador Sumaylo and Gemma G. del Rosario outside
his court's jurisdiction on October 27, 1994.Respondent judge holds
office and has jurisdiction in the Municipal Circuit Trial Court of Sta.
Monica-Burgos, Surigao del Norte. The wedding was solemnized at
the respondent judge's residence in the municipality of Dapa, which
does not fall within his jurisdictional area of the municipalities of Sta.
Monica and Burgos, located some 40 to 45 kilometers away from the
municipality of Dapa, Surigao del Norte.
In his letter-comment to the Office of the Court Administrator,
respondent judge avers that the office and name of the Municipal
Mayor of Dapa have been used by someone else, who, as the
mayor's "lackey," is overly concerned with his actuations both as
judge and as a private person. The same person had earlier filed
Administrative Matter No. 94-980-MTC, which was dismissed for lack
of merit on September 15, 1994, and Administrative Matter No. OCA-
IPI-95-16, "Antonio Adapon v. Judge Hernando C. Domagtoy," which
is still pending.
In relation to the charges against him, respondent judge seeks
exculpation from his act of having solemnized the marriage between
Gaspar Tagadan, a married man separated from his wife, and Arlyn F.
Borga by stating that he merely relied on the Affidavit issued by the
Municipal Trial Judge of Basey, Samar, confirming the fact that Mr.
Tagadan and his first wife have not seen each other for almost seven
years.[1] With respect to the second charge, he maintains that in
solemnizing the marriage between Sumaylo and del Rosario, he did
not violate Article 7, paragraph 1 of the Family Code which states
that: "Marriage may be solemnized by: (1) Any incumbent member of
the judiciary within the court's jurisdiction; and that Article 8 thereof
applies to the case in question.
The complaint was not referred, as is usual, for investigation,
since the pleadings submitted were considered sufficient for a
resolution of the case.[2]
Since the countercharges of sinister motives and fraud on the
part of complainant have not been sufficiently proven, they will not be
dwelt upon. The acts complained of and respondent judge's answer
thereto will suffice and can be objectively assessed by themselves to
prove the latter's malfeasance.
The certified true copy of the marriage contract between Gaspar
Tagadan and Arlyn Borga states that Tagadan's civil status is
"separated." Despite this declaration, the wedding ceremony was
solemnized by respondent judge. He presented in evidence a joint
affidavit by Maurecio A. Labado, Sr. and Eugenio Bullecer, subscribed
and sworn to before Judge Demosthenes C. Duquilla, Municipal Trial
Judge of Basey, Samar.[3] The affidavit was not issued by the latter
judge, as claimed by respondent judge, but merely acknowledged
before him.In their affidavit, the affiants stated that they knew Gaspar
Tagadan to have been civilly married to Ida D. Pearanda in
September 1983; that after thirteen years of cohabitation and having
borne five children, Ida Pearanda left the conjugal dwelling in
Valencia, Bukidnon and that she has not returned nor been heard of
for almost seven years, thereby giving rise to the presumption that
she is already dead.
In effect, Judge Domagtoy maintains that the aforementioned
joint affidavit is sufficient proof of Ida Pearanda's presumptive death,
and ample reason for him to proceed with the marriage ceremony. We
do not agree.
Article 41 of the Family Code expressly provides:
"A marriage contracted by any person during the subsistence of a previous
marriage shall be null and void, unless before the celebration of the
subsequent marriage, the prior spouse had been absent for four consecutive
years and the spouse present had a well-founded belief that the absent spouse
was already dead. In case of disappearance where there is danger of death
under the circumstances set forth in the provisions of Articles 391 of the
Civil Code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding
paragraph, the spouse present must institute a summary proceeding as
provided in this Code for the declaration of presumptive death of the
absentee, without prejudice to the effect of reappearance of the absent
spouse." (Emphasis added.)
There is nothing ambiguous or difficult to comprehend in this
provision. In fact, the law is clear and simple. Even if the spouse
present has a well-founded belief that the absent spouse was already
dead, a summary proceeding for the declaration of presumptive death
is necessary in order to contract a subsequent marriage, a mandatory
requirement which has been precisely incorporated into the Family
Code to discourage subsequent marriages where it is not proven that
the previous marriage has been dissolved or a missing spouse is
factually or presumptively dead, in accordance with pertinent
provisions of law.
In the case at bar, Gaspar Tagadan did not institute a summary
proceeding for the declaration of his first wife's presumptive
death. Absent this judicial declaration, he remains married to Ida
Pearanda. Whether wittingly, or unwittingly, it was manifest error on
the part of respondent judge to have accepted the joint affidavit
submitted by the groom. Such neglect or ignorance of the law has
resulted in a bigamous, and therefore void, marriage. Under Article 35
of the Family Code, "The following marriage shall be void from the
beginning: (4) Those bigamous x x x marriages not falling under
Article 41."
The second issue involves the solemnization of a marriage
ceremony outside the court's jurisdiction, covered by Articles 7 and 8
of the Family Code, thus:
"Art. 7. Marriage may be solemnized by:
(1) Any incumbent member of the judiciary within the court's jurisdiction;
x x x x x x xxx (Emphasis supplied.)
Art. 8. The marriage shall be solemnized publicly in the chambers of the
judge or in open court, in the church, chapel or temple, or in the office of the
consul-general, consul or vice-consul, as the case may be, and not
elsewhere, except in cases of marriages contracted on the point of death
or in remote places in accordance with Article 29 of this Code, or where
both parties request the solemnizing officer in writing in which case the
marriage may be solemnized at a house or place designated by them in a
sworn statement to that effect."
Respondent judge points to Article 8 and its exceptions as the
justifications for his having solemnized the marriage between Floriano
Sumaylo and Gemma del Rosario outside of his court's
jurisdiction. As the aforequoted provision states, a marriage can be
held outside of the judge's chambers or courtroom only in the
following instances: (1) at the point of death, (2) in remote places in
accordance with Article 29 or (3) upon request of both parties in
writing in a sworn statement to this effect. There is no pretense that
either Sumaylo or del Rosario was at the point of death or in a remote
place. Moreover, the written request presented addressed to the
respondent judge was made by only one party, Gemma del Rosario.[4]
More importantly, the elementary principle underlying this
provision is the authority of the solemnizing judge. Under Article 3,
one of the formal requisites of marriage is the "authority of the
solemnizing officer." Under Article 7, marriage may be solemnized by,
among others, "any incumbent member of the judiciary within the
court's jurisdiction." Article 8, which is a directory provision, refers only
to the venue of the marriage ceremony and does not alter or qualify
the authority of the solemnizing officer as provided in the preceding
provision. Non-compliance herewith will not invalidate the marriage.
A priest who is commissioned and allowed by his local ordinary to
marry the faithful, is authorized to do so only within the area of the
diocese or place allowed by his Bishop. An appellate court Justice or
a Justice of this Court has jurisdiction over the entire Philippines to
solemnize marriages, regardless of the venue, as long as the
requisites of the law are complied with. However, judges who are
appointed to specific jurisdictions, may officiate in weddings only
within said areas and not beyond. Where a judge solemnizes a
marriage outside his court's jurisdiction, there is a resultant irregularity
in the formal requisite laid down in Article 3, which while it may not
affect the validity of the marriage, may subject the officiating official to given a STERN WARNING that a repetition of the same or similar
administrative liability.[5] acts will be dealt with more severely.
Inasmuch as respondent judge's jurisdiction covers the
municipalities of Sta. Monica and Burgos, he was not clothed with
authority to solemnize a marriage in the municipality of Dapa, Surigao
del Norte. By citing Article 8 and the exceptions therein as grounds for
the exercise of his misplaced authority, respondent judge again
demonstrated a lack of understanding of the basic principles of civil
law.
Accordingly, the Court finds respondent to have acted in gross
ignorance of the law. The legal principles applicable in the cases
brought to our attention are elementary and uncomplicated, prompting
us to conclude that respondent's failure to apply them is due to a lack
of comprehension of the law.
The judiciary should be composed of persons who, if not experts,
are at least, proficient in the law they are sworn to apply, more than
the ordinary laymen. They should be skilled and competent in
understanding and applying the law. It is imperative that they be
conversant with basic legal principles like the ones involved in instant
case.[6] It is not too much to expect them to know and apply the law
intelligently.[7] Otherwise, the system of justice rests on a shaky
foundation indeed, compounded by the errors committed by those not
learned in the law.While magistrates may at times make mistakes in
judgment, for which they are not penalized, the respondent judge
exhibited ignorance of elementary provisions of law, in an area which
has greatly prejudiced the status of married persons.
The marriage between Gaspar Tagadan and Arlyn Borga is
considered bigamous and void, there being a subsisting marriage
between Gaspar Tagadan and Ida Pearanda.
The Office of the Court Administrator recommends, in its
Memorandum to the Court, a six-month suspension and a stern
warning that a repetition of the same or similar acts will be dealt with
more severely. Considering that one of the marriages in question
resulted in a bigamous union and therefore void, and the other lacked
the necessary authority of respondent judge, the Court adopts said
recommendation. Respondent is advised to be more circumspect in
applying the law and to cultivate a deeper understanding of the law.
IN VIEW OF THE FOREGOING, respondent Judge Hernando C.
Domagtoy is hereby SUSPENDED for a period of six (6) months and
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
2 inform the Department of Justice "if the accused have already been
their marriage and that they had been living apart since April, 1982.
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
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.
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.:\
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.
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.

It is true that owing to the nationality principle embodied in Article 15 of Without costs.
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
 [G.R. No. 124862. December 22, 1998]
FE D. QUITA, petitioner, vs. COURT OF APPEALS and
BLANDINA DANDAN,* respondents.
DECISION
BELLOSILLO, J .:
FE D. QUITA and Arturo T. Padlan, both Filipinos, were married
in the Philippines on 18 May 1941. They were not however blessed
with children. Somewhere along the way their relationship
soured.Eventually Fe sued Arturo for divorce in San Francisco,
California, U.S.A. She submitted in the divorce proceedings a private
writing dated 19 July 1950 evidencing their agreement to live
separately from each other and a settlement of their conjugal
properties. On 23 July 1954 she obtained a final judgment of
divorce. Three (3) weeks thereafter she married a certain Felix Tupaz
in the same locality but their relationship also ended in a divorce. Still
in the U.S.A., she married for the third time, to a certain Wernimont.
On 16 April 1972 Arturo died. He left no will. On 31 August 1972
Lino Javier Inciong filed a petition with the Regional Trial Court of
Quezon City for issuance of letters of administration concerning the
estate of Arturo in favor of the Philippine Trust Company. Respondent
Blandina Dandan (also referred to as Blandina Padlan), claiming to be
the surviving spouse of Arturo Padlan, and Claro, Alexis, Ricardo,
Emmanuel, Zenaida and Yolanda, all surnamed Padlan, named in the
petition as surviving children of Arturo Padlan, opposed the petition
and prayed for the appointment instead of Atty. Leonardo Cabasal,
which was resolved in favor of the latter. Upon motion of the
oppositors themselves, Atty. Cabasal was later replaced by Higino
Castillon. On 30 April 1973 the oppositors (Blandina and the Padlan
children) submitted certified photocopies of the 19 July 1950 private
writing and the final judgment of divorce between petitioner and
Arturo. Later Ruperto T. Padlan, claiming to be the sole surviving
brother of the deceased Arturo, intervened.
On 7 October 1987 petitioner moved for the immediate
declaration of heirs of the decedent and the distribution of his
estate. At the scheduled hearing on 23 October 1987, private
respondent as well as the six (6) Padlan children and Ruperto failed to
appear despite due notice. On the same day, the trial court required the
submission of the records of birth of the Padlan children within ten
(10) days from receipt thereof, after which, with or without the
documents, the issue on the declaration of heirs would be considered
submitted for resolution. The prescribed period lapsed without the
required documents being submitted.
The trial court invoking Tenchavez v. Escao[1] which held that "a
foreign divorce between Filipino citizens sought and
decreed after the effectivity of the present Civil Code (Rep. Act 386)
was not entitled to recognition as valid in this
jurisdiction,"[2] disregarded the divorce between petitioner and
Arturo. Consequently, it expressed the view that their marriage
subsisted until the death of Arturo in 1972.Neither did it consider valid
their extrajudicial settlement of conjugal properties due to lack of
judicial approval.[3] On the other hand, it opined that there was no
showing that marriage existed between private respondent and Arturo,
much less was it shown that the alleged Padlan children had been
acknowledged by the deceased as his children with her. As regards
Ruperto, it found that he was a brother of Arturo.On 27 November
1987[4] only petitioner and Ruperto were declared the intestate heirs of
Arturo. Accordingly, equal adjudication of the net hereditary estate
was ordered in favor of the two intestate heirs.[5]
On motion for reconsideration, Blandina and the Padlan children
were allowed to present proofs that the recognition of the children by
the deceased as his legitimate children, except Alexis who was
recognized as his illegitimate child, had been made in their respective
records of birth. Thus on 15 February 1988[6] partial reconsideration
was granted declaring the Padlan children, with the exception of
Alexis, entitled to one-half of the estate to the exclusion of Ruperto
Padlan, and petitioner to the other half.[7] Private respondent was not
declared an heir. Although it was stated in the aforementioned records
of birth that she and Arturo were married on 22 April 1947, their
marriage was clearly void since it was celebrated during the existence
of his previous marriage to petitioner.
 In their appeal to the Court of Appeals, Blandina and her children
assigned as one of the errors allegedly committed by the trial court the
circumstance that the case was decided without a hearing, in violation
of Sec. 1, Rule 90, of the Rules of Court, which provides that if there
is a controversy before the court as to who are the lawful heirs of the
deceased person or as to the distributive shares to which each person
is entitled under the law, the controversy shall be heard and decided
as in ordinary cases.
Respondent appellate court found this ground alone sufficient to
sustain the appeal; hence, on 11 September 1995 it declared null and
void the 27 November 1987 decision and 15 February 1988 order of
the trial court, and directed the remand of the case to the trial court for
further proceedings.[8] On 18 April 1996 it denied reconsideration.[9]
Should this case be remanded to the lower court for further
proceedings? Petitioner insists that there is no need because, first, no
legal or factual issue obtains for resolution either as to the heirship of
the Padlan children or as to their respective shares in the intestate
estate of the decedent; and, second, the issue as to who between
petitioner and private respondent is the proper heir of the decedent is
one of law which can be resolved in the present petition based on
established facts and admissions of the parties.
We cannot sustain petitioner. The provision relied upon by
respondent court is clear: If there is a controversy before the court
as to who are the lawful heirs of the deceased person or as to the
distributive shares to which each person is entitled under the law, the
controversy shall be heard and decided as in ordinary cases.
We agree with petitioner that no dispute exists either as to the
right of the six (6) Padlan children to inherit from the decedent
because there are proofs that they have been duly acknowledged by
him and petitioner herself even recognizes them as heirs of Arturo
Padlan;[10] nor as to their respective hereditary shares. But controversy
remains as to who is the legitimate surviving spouse of Arturo. The
trial court, after the parties other than petitioner failed to appear during
the scheduled hearing on 23 October 1987 of the motion for immediate
declaration of heirs and distribution of estate, simply issued an order
requiring the submission of the records of birth of the Padlan children
within ten (10) days from receipt thereof, after which, with or without
the documents, the issue on declaration of heirs would be deemed
submitted for resolution.
We note that in her comment to petitioner's motion private
respondent raised, among others, the issue as to whether petitioner was
still entitled to inherit from the decedent considering that she had
secured a divorce in the U.S.A. and in fact had twice remarried. She
also invoked the above quoted procedural rule.[11] To this, petitioner
replied that Arturo was a Filipino and as such remained legally
married to her in spite of the divorce they obtained.[12] Reading
between the lines, the implication is that petitioner was no longer a
Filipino citizen at the time of her divorce from Arturo. This should
have prompted the trial court to conduct a hearing to establish her
citizenship. The purpose of a hearing is to ascertain the truth of the
matters in issue with the aid of documentary and testimonial evidence
as well as the arguments of the parties either supporting or opposing
the evidence. Instead, the lower court perfunctorily settled her claim in
her favor by merely applying the ruling in Tenchavez v. Escao.
Then in private respondent's motion to set aside and/or reconsider
the lower court's decision she stressed that the citizenship of petitioner
was relevant in the light of the ruling in Van Dorn v. Romillo
Jr.[13] that aliens may obtain divorces abroad, which may be recognized
in the Philippines, provided they are valid according to their national
law. She prayed therefore that the case be set for hearing.[14]Petitioner
opposed the motion but failed to squarely address the issue on her
citizenship.[15] The trial court did not grant private respondent's prayer
for a hearing but proceeded to resolve her motion with the finding that
both petitioner and Arturo were "Filipino citizens and were married in
the Philippines."[16] It maintained that their divorce obtained in 1954 in
San Francisco, California, U.S.A., was not valid in Philippine
jurisdiction. We deduce that the finding on their
citizenship pertained solely to the time of their marriage as the trial
court was not supplied with a basis to determine petitioner's
citizenship at the time of their divorce. The doubt persisted as to
whether she was still a Filipino citizen when their divorce was
decreed. The trial court must have overlooked the materiality of this
aspect. Once proved that she was no longer a Filipino citizen at the
time of their divorce, Van Dorn would become applicable and
petitioner could very well lose her right to inherit from Arturo.
 Respondent again raised in her appeal the issue on petitioner's WHEREFORE, the petition is DENIED. The decision of
citizenship;[17] it did not merit enlightenment however from respondent Court of Appeals ordering the remand of the case to the
petitioner.[18] In the present proceeding, petitioner's citizenship is court of origin for further proceedings and declaring null and void its
brought anew to the fore by private respondent. She even furnishes the decision holding petitioner Fe D. Quita and Ruperto T. Padlan as
Court with the transcript of stenographic notes taken on 5 May 1995 intestate heirs is AFFIRMED. The order of the appellate court
during the hearing for the reconstitution of the original of a certain modifying its previous decision by granting one-half (1/2) of the net
transfer certificate title as well as the issuance of new owner's hereditary estate to the Padlan children, namely, Claro, Ricardo,
duplicate copy thereof before another trial court. When asked whether Emmanuel, Zenaida and Yolanda, with the exception of Alexis, all
she was an American citizen petitioner answered that she was since surnamed Padlan, instead of Arturo's brother Ruperto Padlan, is
1954.[19]Significantly, the decree of divorce of petitioner and Arturo likewise AFFIRMED.The Court however emphasizes that the
was obtained in the same year. Petitioner however did not bother to reception of evidence by the trial court should be limited to the
file a reply memorandum to erase the uncertainty about her citizenship hereditary rights of petitioner as the surviving spouse of Arturo
at the time of their divorce, a factual issue requiring hearings to be Padlan.
conducted by the trial court. Consequently, respondent appellate court
The motion to declare petitioner and her counsel in contempt of
did not err in ordering the case returned to the trial court for further
court and to dismiss the present petition for forum shopping
proceedings.
is DENIED.
We emphasize however that the question to be determined by the
trial court should be limited only to the right of petitioner to inherit
from Arturo as his surviving spouse. Private respondent's claim to
heirship was already resolved by the trial court. She and Arturo were
married on 22 April 1947 while the prior marriage of petitioner and
Arturo was subsisting thereby resulting in a bigamous marriage
considered void from the beginning under Arts. 80 and 83 of the Civil
Code. Consequently, she is not a surviving spouse that can inherit
from him as this status presupposes a legitimate relationship.[20]
As regards the motion of private respondent for petitioner and her
counsel to be declared in contempt of court and that the present
petition be dismissed for forum shopping,[21] the same lacks merit. For
forum shopping to exist the actions must involve the same transactions
and same essential facts and circumstances. There must also be
identical causes of action, subject matter and issue.[22] The present
petition deals with declaration of heirship while the subsequent
petitions filed before the three (3) trial courts concern the issuance of
new owner's duplicate copies of titles of certain properties belonging
to the estate of Arturo. Obviously, there is no reason to declare the
existence of forum shopping.
 [G.R. No. L-6897. November 29, 1956.]
In the Matter of the Claim for Attorneys Fees. CLARO M. RECTO, claimant-
Appellee, vs. ESPERANZA P. DE HARDEN and FRED M.
HARDEN, Defendants-Appellants.
DECISION
CONCEPCION, J.:
This is an appeal taken by Esperanza P. de Harden and Fred M. Harden from
a decision of the Court of First Instance of Manila, the pertinent part of
which is of the following tenor:chanroblesvirtuallawlibrary.
The contingent fee to which the claimant is entitled under paragraph 3 of
the contract, Exhibit JJJ or 20, is 20% of P1,920,554.85 or the sum of
P384,110.97.
WHEREFORE, this Court hereby approves the recommendation of the
Commissioner with the above-stated modification, and finds that Attorney
Claro M. Recto is entitled to the sum of THREE HUNDRED EIGHTY-FOUR
THOUSAND ONE HUNDRED AND TEN PESOS AND NINETY-SEVEN CENTAVOS
(P384,110.97), representing 20% of Esperanza P. de Hardens share in the
conjugal properties owned by her and her husband, Fred M. Harden, as
contingent fee stipulated in paragraph 3 of the Contract of Professional
Services, Exhibit JJJ or 20, and the said Esperanza P. de Harden is hereby
ordered to pay the said amount above-stated. It appears that sometime in
July, 1941, Appellant, Mrs. Harden, and Appellee, Claro M. Recto, executed
the following:chanroblesvirtuallawlibrary
CONTRACT OF PROFESSIONAL SERVICES
KNOW ALL MEN BY THESE PRESENTS:chanroblesvirtuallawlibrary
That I, ESPERANZA PEREZ DE HARDEN, of age, married to Fred M. Harden,
and temporarily residing in the Philippines, with address at 534 Sales Street,
Manila, have engaged the services of Attorney Claro M. Recto to appear and
act as my counsel in the action which I will file against my husband, Fred M.
Harden, for the purpose of securing an increase in the amount of support
being received by me from the conjugal partnership of myself and said Fred
M. Harden, and for the purpose likewise of protecting and preserving my
rights in the properties of the said conjugal partnership, in contemplation of
the divorce suit which I intent to file against him in the competent Court of
California and of the liquidation of the conjugal partnership between us, this
contract of services to be under the following
conditions:chanroblesvirtuallawlibrary
1. That in lieu of retainer fee, which under the circumstances I am not in a
position to pay, I hereby agree to pay Attorney Claro M. Recto, such
payment to be made monthly, during the pendency of the litigation and
until the termination of the same, twenty-five (25%) per cent of the total
increase in allowance or pension which may be awarded to me by the court
over and above the amount of P1,500.00 which I now receive monthly
from Defendant Fred M. Harden out of the funds of the conjugal
partnership; chan roblesvirtualawlibraryProvided, that should the case be
terminated or an amicable settlement thereof be arrived at by the parties
before the expiration of two years from the date of the filing of the
complaint, I shall continue to pay the said twenty-five (25%) per cent up to
the end of said period.
2. That the aforesaid monthly payments shall be in addition to whatever
amount may be adjudged by the court against the Defendant Fred M.
Harden or against the conjugal partnership by way of litis expense, that is,
attorneys fees chargeable as expenses of litigation.
3. That as full and complete satisfaction of the fees of Attorney Claro M.
Recto in connection with the case above referred to, and said case being for
the purposes aforestated, that is, to secure an increase in the amount of
support I now receive as well as to protect and preserve my rights and
interest in the properties of the conjugal partnership, in contemplation of
divorce and of the liquidation of said partnership, I hereby agree to pay said
Attorney Claro M. Recto twenty (20%) per cent of the value of the share and
participation which I may receive in the funds and properties of the said
conjugal partnership of myself and Defendant Fred M. Harden, as a result of
the liquidation thereof either by death, divorce, judicial separation,
compromise or by any means or method by virtue of which said partnership
is or may be liquidated.
4. All expenses in connection with the litigation are to be for my account,
but the same may be advanced by Attorney Claro M. Recto, to be
reimbursed to him either from the money which I receive by way of support
or from the funds of the conjugal partnership.
5. It is hereby understood that this contract includes the services of
Attorney Claro M. Recto in connection with the securing of the liquidation
of the properties and assets of the conjugal partnership of myself and Fred
M. Harden, upon dissolution of said partnership or for any other cause
mentioned in Paragraph (3) hereof.
IN WITNESS WHEREOF, I have signed these presents in the City _____ of
Manila, Philippines this _______ day of July, 1941.
s/ Esperanza P. de Harden
t/ ESPERANZA P. DE HARDEN
ACCEPTED:chanroblesvirtuallawlibrary
s/ Claro M. Recto
t/ CLARO M. RECTO
In compliance therewith, on July 12, 1941, the Appellee, as counsel for Mrs.
Harden, commenced Civil Case No. 59634 of the Court of First Instance of
Manila, entitled Esperanza P. de Harden vs. Fred M. Harden and Jose
Salumbides. In the complaint therein filed, it was prayed, among other
things:chanroblesvirtuallawlibrary (a) that Mrs. Harden be given the
exclusive administration of the business and all properties of the conjugal
partnership of Mr. and Mrs. Harden; chan roblesvirtualawlibrary(b) that, in
the event of denial of this prayer, the Defendants be ordered to inform her
of everything pertaining to the administration of said business and
properties, as well as to render accounts thereof and to permit her to
examine the books and records pertinent thereto; chan
roblesvirtualawlibrary(c) that Mr. Harden be ordered to account to Mrs.
Harden, and to return to this jurisdiction, the sum of P449,015.44 allegedly
withdrawn by him from the Philippines or sent by him to Hongkong on April
1, 1941; chan roblesvirtualawlibrary(d) that Defendant Salumbides be
ordered to account for all moneys, amounting to P285,000.00, belonging to
the business and assets of said conjugal partnership and deposited by him in
a safety box, either in his name, or in that of Antonio Wilson, from January
23 to December 23, 1940; chan roblesvirtualawlibrary(e) that the transfer,
in the name of Salumbides, of certain shares of stock, allegedly belonging to
the conjugal partnership, be rescinded and said Defendant ordered to
transfer said shares of stock in the name of Mrs. Harden or in that of Mr.
and Mrs. Harden, should Mr. Harden be allowed to continue as
administrator of said partnership; chan roblesvirtualawlibrary( f ) that the
transfer, made by Mr. Harden and/or by Defendant Salumbides, as his
attorney-in-fact, of 36,000 shares of stock of the Angelo Mining Company,
to some residents of Hongkong, be rescinded and said shares returned to
the assets of the conjugal partnership and placed in the name of Mr. and
Mrs. Harden; chan roblesvirtualawlibrary(g) that the monthly allowance of
Mrs. Harden be increased from P1,500 to P15,000; chan
roblesvirtualawlibrary(h) that, pending final decision, Mr. Harden be
ordered to increase the allowance or pension of Mrs. Harden and their
daughter Sarah Elizabeth to P10,000 a month; chan
roblesvirtualawlibraryand (i) that a writ of preliminary injunction be issued
restraining the Defendants from disposing of the assets of the conjugal
partnership in fraud of Mrs. Harden.
By an order dated July 12, 1941, the court authorized the issuance of said
writ, upon the filing of the corresponding bond. It appears that, pursuant to
an agreement submitted by both parties, and with a view to avoiding
unnecessary embarrassment, restraint or inconvenience in the financial
operations of the business enterprises affected by said writ of preliminary
injunction, the same was amended by an order dated July 19, 1941, in the
sense that.
cralaw without prejudicing in any way the rights of the parties in this case,
a separate bank account be established in the Chartered Bank of India,
Australia and China, of Manila, and all transactions in connection with the
aforesaid businesses passed through that account by Mr. Harden or his duly
authorized representative, who at present is Mr. Salumbides, without the
necessity of securing a particular order from this Court on each
occasion; chan roblesvirtualawlibrarythat the present funds in the Philippine
National Bank in the name of Plaza Lunch and Fred M. Harden be utilized for
the purpose of starting said special bank account in the Chartered Bank of
India, Australia and China; chan roblesvirtualawlibrarythat all income from
the aforesaid businesses be deposited in this special bank account and no
checks be drawn upon the same, except to pay the necessary overhead and
running expenses including purchases of tobacco, merchandise, etc.,
required for the proper operation of said businesses; chan
roblesvirtualawlibrarythat a new set of books be opened by Mr. Harden or
his duly authorized representative covering all business transactions passed
through said special bank account and the same be opened for inspection
by the Plaintiffs duly authorized representative.
The order of injunction of July 12, 1941, is modified only to the above
extent, and in all other respects is maintained.
Subsequently, the Philippines was invaded by the Japanese and placed
under military occupation. Then came the liberation, in the course of which
the records of this case were destroyed. On October 23, 1946, said records
were reconstituted at the instance of Appellee herein. Thereafter, the
proceedings were resumed and, in due course, the Court of First Instance of
Manila rendered, on or about October 31, 1949, a decision the dispositive
part of which we quote:chanroblesvirtuallawlibrary
In view of the foregoing considerations, this court finds and so holds that
(a) Fred M. Harden abandoned his domicile of origin in New Jersey and
established a domicile of choice in Manila, Philippines, since 1901;
(b) The matrimonial domicile of Fred M. Harden and Esperanza P. de
Harden was established in Manila, Philippines, from the date of their
marriage on December 14, 1917;
(c) Since they did not execute any antenuptial contract before their
marriage, all the properties, real or personal, acquired by either or both of
them on and after December 14, 1917, up to the present, over and above
the sum of P20,000.00 representing Fred M. Hardens capital, are hereby
declared conjugal properties;
(d) The total amount of P1,944,794.37 representing deposits in safety
deposit boxes in the name of Jose Salumbides, the selling price of the house
in Los Angeles, California, and the pre-war and post-war remittances abroad
of Fred M. Harden, from which has already been deducted the sum of
P160,000.00 covering payments for deficiency Federal income taxes and
attorneys fees, both in the tax case and the present one, is hereby declared
chargeable to the share of Defendant Harden and deductible from whatever
participation he may still have in the said conjugal partnership upon the
liquidation thereof, upon his failure to return and deposit them in the name
of the Plaza Lunch with the Manila branch of the Chartered Bank of India,
Australia and China up to the time this decision shall become final;
(e) A conjugal lien be annotated in the original and owners duplicate of
Transfer Certificates of Title Nos. 24393, 52436 and 54911 of the Register of
Deeds of Manila and in Original Certificate of Title No. 2292 of Quezon
Province, and on all the certificates of shares belonging to said conjugal
partnership, as well as in the corresponding books of the companies or
corporations issuing them, whereby it will be made to appear that any
subsequent alienation or encumbrance of said properties by Fred M.
Harden alone or his representative without the consent of his wife will be
deemed fraudulent and subject to revocation or cancellation for being in
fraud and prejudicial to the right of Esperanza P. de Harden;
( f ) Within a period of fifteen (15) days after this decision shall have
become final, Fred M. Harden and Esperanza P. de Harden are hereby
ordered to execute a document to be approved by this court creating and
express active trust upon the remaining cash assets and income of the
conjugal partnership in the Philippines, whereby the Philippine Trust
Company, with offices in Manila, will act as trustee, subject to the right of
Fred M. Harden to receive therefrom the sum of P2,500,00 a month by way
of allowance and an equal amount for the Plaintiff as separate support and
maintenance;
(g) Within thirty (30) days after this decision shall have become final, Fred
M. Harden shall inform the Plaintiff of all the properties and businesses of
the conjugal partnership, be they in the Philippines or abroad, and render a
true and complete accounting of the earnings and profits thereof;
(h) The Plaintiff is entitled to litis expensae in the amount of P175,000.00
for services rendered by her counsel up to the rendition of this judgment,
which Fred M. Harden or the herein receiver is ordered to pay within a
period of fifteen (15) days after this decision has become final; chan
roblesvirtualawlibraryand
(i) The writ of preliminary injunction of July 12, 1941, is hereby declared
permanent and the order of receivership of November 20, 1946, is hereby
maintained, but said auxiliary remedies will be automatically lifted upon the
conclusion of the annotation of the conjugal lien and the execution of the
deed of trust above mentioned. Without costs.
IT IS SO ORDERED.
The Defendants appealed from said decision to this Court, where the case
was docketed as case No. L-3687. While the appeal was thus pending before
us, herein Appellee filed a manifestationand a motion, both dated February
20, 1952. In said manifestation, Appellee stated that Mrs. Harden had
instructed him, by letter, to discontinue all proceedings relative to said
case, vacate all orders and judgments rendered therein, and abandon and
nullify all her claims to the conjugal partnership existing between her and
Mr. Harden, in accordance with several instruments dated January 29,
1952, and executed without the knowledge, advise and consent of
said Appellee, as counsel for Mrs. Harden,
whereby:chanroblesvirtuallawlibrary (1) Mr. and Mrs. Harden had
purportedly agreed to settle their differences in consideration of the sum of
$5,000 paid by Mr. Harden to Mrs. Harden, and a monthly pension of P500
to be paid by him to her; chan roblesvirtualawlibrary(2) Mr. Harden had
created a trust fund of $20,000 from which said monthly pension of $500
would be taken; chan roblesvirtualawlibraryand (3) Mr. and Mrs. Harden
had mutually released and forever discharged each other from all actions,
debts, duties, accounts, demands and claims to the conjugal partnership, in
consideration of the sum of $1. It was further asserted, in Appellees
manifestation, that the purpose of the said instruments, executed by Mr.
and Mrs. Harden, was to defeat the claim of the former for attorneys fees,
for which reason, he prayed, in his aforementioned motion, that
a) Pending the resolution of this motion, the receiver appointed herein be
authorized to continue holding the properties above mentioned in his
custody in order not to defeat the undersigneds inchoate lien on them;
b) A day set aside to receive the evidence of the undersigned and those of
the Plaintiff and the Defendant Fred M. Harden, in order to determine the
amount of fees due to the undersigned, by the appointment of a referee or
commissioner for the reception of such
c) After due hearing, the undersigned be declared entitled to the sum of
P400,000.00 as his fees for services rendered in behalf of the Plaintiff in this
case, under paragraph 3 of the contract, Annex A, and to that end a
charging lien therefore be established upon the properties above-
mentioned;
d) And the receiver be ordered to pay to the undersigned the full amount
of the fees to which the latter is found to be entitled.
Counsel for the Defendants-Appellants, in turn, moved for the dismissal of
the case, to which Appellee objected. Acting upon the issues raised in such
motion for dismissal and in Appellees motion to establish and enforce his
charging lien, as counsel for Mrs. Harden, this Court issued on July 22, 1952,
a resolution the pertinent part of which reads:chanroblesvirtuallawlibrary
It will be seen from the above that the Defendants-Appellants pray for the
complete dismissal of the above entitled case without prejudice to the
annotation of the contingent claim of Attorney Claro M. Recto on the
property under receivership, other than the 368,553 shares of the Balatoc
Mining Company which belong to Fred M. Harden. On the other hand,
Attorney Claro M. Recto agrees to the lifting of the writ of preliminary
injunction, the orders of contempt and commitment, and all other
interlocutory orders which were issued in the course of this case, with the
exception of the receivership, but objects to the dismissal of the case on the
ground that, since receivership is merely an auxiliary remedy, the present
case should be allowed to remain pending for the purpose of maintaining
the receivership to safeguard his right to collect the fees that may be due
him.
Attorney Claro M. Recto prays that a commissioner or referee be
immediately appointed by this Court to receive evidence in support of his
allegations as to his attorneys lien and its enforcement. Counsel for
the Defendants-Appellants does not object to this proceeding provided that
the restrictions set forth by him be observed. However, this Court does not
have the proper facilities for receiving evidence in order to determine the
amount of the fees claimed by Attorney Claro M. Recto, and it is deemed
advisable that this matter be determined by the Court of First Instance. This
is specially so considering the opposition to the claim of Attorney Claro M.
Recto filed by Attorney J. W. Ferrier, Sr. in behalf of Esperanza P. de Harden.
In view of the foregoing, the above entitled case is hereby remanded to the
court of origin in order to determine the amount of fees claimed by
Attorney Claro M. Recto in his motion dated February 20, 1952.
It is understood that, after said fees had been finally determined and paid,
this case will be completely dismissed as prayed for by the Defendants-
Appellants, without prejudice to considering the claim of the receiver for
compensation as stated in his urgent motion dated July 2, 1952. Pending
the determination of the amount of fees claimed by Attorney Claro M.
Recto, the writ of preliminary injunction, the orders of contempt and
commitment, and all interlocutory orders which were issued in the course
of this case, are hereby lifted and vacated, and with regard to the
receivership, the same is hereby dissolved, only with respect to the 368,553
shares of the Balatoc Mining Company. As to the rest of the properties, the
receivership shall be maintained.
In compliance with said resolution, the records of this case were remanded
to the lower court, which, on September 2, 1952, designated a
commissioner to receive evidence on the amount of the fees collectible by
herein Appellee and to report thereon. After due hearing, said
commissioner submitted, on February 6, 1953, a report of about one
hundred (100) pages of the printed record on appeal, setting forth, in detail,
the evidence introduced by both parties, and his findings of fact, with the
following conclusion and recommendation:chanroblesvirtuallawlibrary
Taking into consideration the value of the properties involved in this
litigation, the length of time in which claimant had handled the same for
Esperanza Harden, the volume and quality of the work performed, the
complicated legal questions involved, the responsibility assumed by
the claimantas counsel, his reputation in the bar, the difficulties
encountered by him while handling the same in which he had to work hard
every inch of the way because of the stiff oppositions filed by adverse
counsel, the diligence he employed not only in the preservation of the
records in his possession during the days of enemy occupation but also in
the protection of the interests of Esperanza Harden, his successful handling
of said case and those cases growing out of it which reached the Supreme
Court, and the extra services he rendered in her behalf in the tax and other
court cases, the undersigned Commissioner concludes that claimant is
entitled to the full amount of 20% of Esperanza Hardens share of the
conjugal properties, as provided in paragraph 3 of the Contract of
Professional Services, Exhibit JJJ.
WHEREFORE, the undersigned Commissioner respectfully recommends
that Atty. Claro M. Recto be paid the equivalent amount of 20% of
Esperanza P. de Hardens share of the conjugal properties or the sum of
P369,410.04 as his contingent fee for services rendered in her behalf.
After appropriate proceedings, the lower court rendered a decision dated
April 30, 1953, adopting substantially said report of the commissioner, but
increasing the contingent fee of Appellee herein from P369,410.04, the sum
recommended in the report, to P384,110.97. Hence, this appeal taken by
Mr. and Mrs. Harden.
The first question for determination therein is the validity of the above-
quoted contract of services, which the Appellants assail as void, mainly,
upon the ground:chanroblesvirtuallawlibrary (1) that Mrs. Harden cannot
bind the conjugal partnership without her husbands consent; chan
roblesvirtualawlibrary(2) that Article 1491 of the Civil Code of the
Philippines in effect prohibits contingent fees; chan
roblesvirtualawlibrary(3) that the contract in question has for its purpose to
secure a decree of divorce, allegedly in violation of Articles 1305, 1352 and
1409 of the Civil Code of the Philippines; chan roblesvirtualawlibraryand (4)
that the terms of said contract are harsh, inequitable and oppressive.
The first objection has no foundation in fact, for the contract in dispute does
not seek to bind the conjugal partnership. By virtue of said contract, Mrs.
Harden merely bound herself or assumed the personal obligation to
pay, by way of contingent fees, 20% of her share in said partnership. The
contract neither gives, nor purports to give, to the Appellee any right
whatsoever, personal or real, in and to her aforesaid share. The amount
thereof is simply a basis for the computation of said fees.
For the same reason, the second objection is, likewise, untenable.
Moreover, it has already been held that contingent fees are not prohibited
in the Philippines and are impliedly sanctioned by our Cannons (No. 13) of
Professional Ethics. (see, also, Ulanday vs. Manila Railroad Co., 45 Phil., 540,
554.) Such is, likewise, the rule in the United States (Legal Ethics by Henry S.
Drinker, p. 176).
cralaw in the United States, the great weight of authority recognizes the
validity of contracts for contingent fees, provided such contracts are not in
contravention of public policy, and it is only when the attorney has taken an
unfair or unreasonable advantage of his client that such a claim is
condemned. (See 5 Am. Jur. 359 et seq.; chan
roblesvirtualawlibraryBallentine, Law Dictionary, 2nd ed., p. 276.)
Needless to say, there is absolutely nothing in the records before us to show
that Appellee herein had, in any manner, taken an unfair or unreasonable
advantage of his client Mrs. Harden.
The third objection is not borne out, either by the language of the contract
between them, or by the intent of the parties thereto. Its purpose was not
to secure a divorce, or to facilitate or promote the procurement of a
divorce. It merely sought to protect the interest of Mrs. Harden in the
conjugal partnership, during the pendency of a divorce suit she intended to
file in the United States. What is more, inasmuch as Mr. and Mrs. Harden
are admittedly citizens of the United States, their status and the dissolution
thereof are governed pursuant to Article 9 of the Civil Code of Spain
(which was in force in the Philippines at the time of the execution of the
contract in question) and Article 15 of the Civil Code of the Philippines by
the laws of the United States, which sanction divorce. In short, the contract
of services, between Mrs. Harden and herein Appellee, is not contrary to
law, morals, good customs, public order or public policy.
The last objection is based upon principles of equity, but, pursuant thereto,
one who seeks equity must come with clean hands (Bastida, et al., vs. Dy
Buncio & Co., 93 Phil., 195; chan roblesvirtualawlibrary30 C.J. S. 475),
and Appellants have not done so, for the circumstances surrounding the
case show, to our satisfaction, that their aforementioned agreements,
ostensibly for the settlement of the differences between husband and wife,
were made for the purpose of circumventing or defeating the rights of
herein Appellee, under his above-quoted contract of services with Mrs.
Harden. Indeed, having secured a judgment in her favor, acknowledging her
rights to the assets of the conjugal partnership, which turned out to be
worth almost P4,000,000 in addition to litis expensae in the sum of
P175,000, it is inconceivable that Mrs. Harden would have waived such
rights, as well as the benefits of all orders and judgments in her favor, in
consideration of the paltry sum of $5,000 allegedly paid to her by Mr.
Harden and the additional sum of $20,000 to be paid by him in installments,
at the rate of $500 a month. In fact, no explanation has been given for this
most unusual avowed settlement between Mr. and Mrs. Harden. One
cannot even consider the possibility of a reconciliation between the
spouses, the same being inconsistent with the monetary consideration for
said alleged settlement. What is more, the records show that the relations
between said spouses which were bad indeed, not only in July, 1941,
when Mrs. Harden engaged the services of the Appellee, but, even, before,
for Mr. and Mrs. Harden were separated since 1938 had worsened
considerably thereafter, as evidence by an action for divorce filed by Mr.
Harden in New Jersey, in July 1948, upon the ground of repeated acts of
infidelity allegedly committed by Mrs. Harden in 1940 and 1941.
Again, it appears that Appellee had rendered, under the contract in
question, the following services, for the benefit of Mrs.
Harden:chanroblesvirtuallawlibrary
1. He succeeded in defeating Defendants motion for the dissolution of the
writ of preliminary injunction, issued by the Court on July 12, 1941, and
amended on July 19, 1941.
2. On November 12, 1946, Appellee moved for the appointment of a
receiver, upon the ground that, despite said writ of preliminary injunction,
the Defendants had been disposing of the properties of the conjugal
partnership for the purpose of defrauding Mrs. Harden. After due hearing,
the court, by an order dated November 20, 1946, directed the appointment
of Abelardo Perez as receiver of said properties, upon the filing of a P10,000
bond. Defendants asked, on February 13, 1947, that the receivership be
suspended, or else, that they be allowed to file a bond for the discharge of
the receivership. Appellee replied objecting thereto, unless
the Defendantsposted a P4,000,000 bond. Subsequently or on March 5,
1947, the Defendants sought a reconsideration of the order of November
20, 1946, and the discharge of the receiver. By an order dated March 21,
1947, the Court authorized said discharged upon the filing, by
the Defendants, of a bond in the sum of P500,000, provided that Mr.
Harden should bring back all the 368,553 shares of the Balatoc Mining Co.,
in his name to the Philippines for deposit with the Clerk of Court, or with the
Chartered Bank of India, Australia and China, at Manila cralaw
3. On motion of the Appellee dated March 4, 1947, the Court, by an order
dated April 5, 1947, directed Mr. Harden to remit to Mrs. Harden the sum of
$2,500, to be charged against her litis expensae. Upon similar motion, filed
by Appellee on or about April 26, 1947, the Court ordered Mr. Harden, on
May 13, 1947, to furnish Mrs. Harden the sum of $5,000, under the same
conditions.
4. On June 21, 1947, the Defendants instituted Civil Case No. G. R. No. L-
1499 of this Court, entitled Fred M. Harden and Jose Salumbides vs. Emilio
Pea, Abelardo Perez and Esperanza P. Harden for the purpose of annulling
and setting aside, by writ of certiorari, the aforementioned orders of the
lower court dated July 12, 1941, November 20, 1946, and April 5 and May
13, 1947, and to restrain, in the meantime, the enforcement thereof. After
appropriate proceedings, in the course of which Appellee appeared as
counsel for Mrs. Harden, and like counsel for the Petitionerstherein, filed
several lengthy, detailed pleadings and memoranda, decision was rendered
on November 21, 1950, denying the writ of certiorari prayed for.
5. On or about September 9, 1947, Appellee filed a motion alleging that
despite the writ of preliminary injunction above mentioned,
the Defendants had, fraudulently and without judicial consent, remitted
abroad several sums of money aggregating P1,000,608.66, and praying that
Mr. Harden be ordered to return this sum to the Philippines, within a stated
period, said sum to be deposited with the account of the Plaza Lunch at the
Manila Branch of the Chartered Bank of India, Australia and China. Mr.
Harden objected to said motion. Appellee filed a rejoinder, to which Mr.
Harden replied. Appellee filed a rejoinder to the rejoinder. On October 7,
1947, the Court granted Appellees motion. Mr. Harden sought a
reconsideration, which was opposed by the Appellee on October 27, 1947,
and denied by an order dated November 13, 1947. Mr. Harden moved, on
November 18, 1947, for the suspension of this order, which was
immediately objected to by the Appellee and then denied by the Court.
6. Inasmuch as said order of November 13, 1947 had not been complied
with, Appellee filed on November 27, 1947, a motion praying that Mr.
Harden be declared in contempt of court and punished accordingly.
Meanwhile, or on November 24, 1947, Mr. Harden had instituted case G. R.
No. L-1816 of this Court against Hon. Emilio Pea, as Judge of the Court of
First Instance of Manila, and Mrs. Harden. In the petition therein filed, Mr.
Harden applied for a writ of certiorari annulling said orders of Judge Pea of
October 7 and November 13, 1947, and prayed that, pending disposition of
the case, a writ of preliminary injunction be issued restraining
the Respondentstherein from enforcing said orders, particularly through
contempt proceedings. Hence, the lower court deferred action on the
aforementioned motion of November 27, 1947. After due hearing, this
Court, in a resolution dated February 12, 1948, refused to issue the writ of
preliminary injunction prayed for. Subsequently, or on November 21,
1950, decision was rendered denying the petition for a writ of certiorari.
7. Soon after the issuance of our resolution in said case G. R. No. 1816,
dated February 12, 1948, or to be exact on March 27, 1948, the lower court
issued an order directing Mr. Harden to comply, within five (5) days from
notice, with the order of October 7, 1947. On April 6, 1948, Appellee filed
with the lower court the corresponding formal charges against Mr. Harden
for contempt of court. After due hearing, Mr. Harden was, by an order of
April 28, 1948, found guilty as charged and ordered confined until he
complies with the aforementioned orders of October 7, 1947 and March
27, 1948. On motion of Mr. Harden, said order of April 28, 1948 was
suspended until May 4, 1948, on which date he was arrested and placed in
confinement at the New Bilibid Prison, in Muntinglupa, Rizal. On July 10,
1948, he filed with this Court a petition for a writ of habeas corpus against
the Director of Prisons, (G. R. No. L-2349, entitled Fred M. Harden vs. The
Director of Prisons), which, in due course was denied in
a decision promulgated on October 22, 1948.
8. During the military occupation of the Philippines by the Japanese,
the Appellee made representations with the Japanese Government to
prevent the commandeering of a business establishment belonging to Mr.
and Mrs. Harden. Moreover, he succeeded in persuading the Japanese to
refrain from interning Mrs. Harden and her daughter and to allow her to
withdraw, from the formers deposit in a local bank, from P200 to P250 a
month, for their subsistence. He, likewise, lent her money to meet her
needs and spent the sum of P55,000 in the preservation of the records and
papers pertaining to the business and other properties of the conjugal
partnership of Mr. and Mrs. Harden.
9. Appellee assisted, also, the receiver, as his counsel and, in such capacity,
took all steps essential for the proper discharge of the duties of the former.
Among other things, Appellee sought and obtained judicial authority for
some important acts of administration of, and disposition by, the receiver.
He (Appellee) secured judicial intervention for the protection and
preservation of the assets of the conjugal partnership, including orders for
the delivery of certificates of stock, the return thereof and/or its deposit
with the clerk of court. He, likewise, represented the receiver in seeking war
damage payments.
10. In civil case No. 6222 of the Court of First Instance of Manila, entitled
Francisco Dalupan vs. Fred M. Harden for the recovery of P113,837.17, it
was decided, through Appellees intervention, that the conjugal assets
would bear the payment of P22,767.43 only, the balance to be chargeable
exclusively against Mr. Hardens share of the conjugal partnership.
11. Appellee instituted civil case No. 6940 of the Court of First Instance of
Manila, entitled Abelardo Perez vs. Chartered Bank of India, Australia and
China and Fred M. Harden, for the recovery of P1,000,608.66 and the
return of stock certificates of the Balatoc Mining Co., which had been sent
abroad.
12. He (Appellee) represented Mrs. Harden in connection with a million-
peso federal tax case against Mr. and Mrs. Harden.
13. Appellee successfully blocked Mr. Hardens attempts to
withdraw:chanroblesvirtuallawlibrary (1) $53,000 and forward the same to
the Collector of Internal Revenue of Los Angeles, California; chan
roblesvirtualawlibrary(2) $50,000.00, allegedly to defray expenses in
resisting a new tax assessment against him in the United States; chan
roblesvirtualawlibraryand (3) P65,000 for his expenses.
Then too, the conjugal partnership had varried and extensive business
interests and its assets were worth almost P4,000,000. The pleadings,
motions, oppositions, rejoinders, and memoranda filed, and the evidence
introduced, in the aforementioned cases in which Appellee was pitted
against one of the most experienced and able members of the Philippine
Bar were numerous, extensive and exhaustive. For instance, the record
on appeal in one of those cases, namely, G. R. No. L-3687, consisted of 966
pages.
In short, considering the character of the services rendered by the Appellee,
the nature and importance of the issues in said litigations, the amount of
labor, time (1941 to 1952) and trouble involved therein, the skill displayed
in connection with said cases, the value of the property affected by the
controversy, the professional character and standing of the Appellee, the
risks assumed and the results obtained, we are of the opinion, and so hold,
that the contract of services in question is neither harsh nor oppressive or
inequitable.
Under their second assignment of error, Appellants maintain
that:chanroblesvirtuallawlibrary
The lower court erred in failing to find as a fact borne out by the evidence
that the legal services of Attorney Claro M. Recto to Mrs. Esperanza P. de
Harden, payment, for which is sought by him in this case, have already been
paid by his immediate execution pending appeal of the decision in Civil Case
No. CFI-R-59634 (SC-G.R. No. L- 3687), wherein he collected the sum of
P176,000.00 for all such legal services.
Said decision, however, states clearly that the aforementioned sum of
P175,000 represents litis expensae, and the contract between
the Appellee and Mrs. Harden explicitly declares that said litis expensae
shall be in addition to Appellees share of 25% of the increase in the
allowance of Mrs. Harden and his attorneys fees of 20% of her share in the
conjugal partnership. The second assignment of error is, therefore, devoid
of merit.
Appellants, further contend, that:chanroblesvirtuallawlibrary
3. The lower court erred in holding that the inchoate share of the wife,
Esperanza P. de Harden, in the undissolved and unliquidated conjugal
partnership properties of the Harden spouses, is capable of certain
valuation before such dissolution and liquidation, and summarily assessing
the value of Mrs. Hardens share in such conjugal properties without proper
evidence.
4. The lower court erred in awarding 20% of such inchoate share to
Attorney Claro M. Recto from Mrs. Hardens interests in the Harden
conjugal properties, summarily assessing such 20% inchoate share as of a
value of P384,110.97, and ordering the payment of said sum to Attorney
Recto in pursuance of the provisions of paragraph 3 of the Contract of
Professional Services.
Appellants arguments in support thereof may be summarized as
follows:chanroblesvirtuallawlibrary The contract of services in question
provides that Appellees contingent fees shall be 20% of the share of Mrs.
Harden in the conjugal partnership. Pursuant to law, the share of Mrs.
Harden shall be determined upon the liquidation of said partnership, which
has not taken place, as yet. What is more, it cannot be effected until the
dissolution of the marriage relation between Mr. and Mrs. Harden.
Inasmuch as this relation subsists, it follows that the amount of attorneys
fees due to Appellee herein should not have been determined in
the decision appealed from.
This line of argument overlooks the fact that said contract of services was
made, principally, in contemplation of a suit for divorce that, according to
Mrs. Harden, she intended to file before a competent court in California,
and of the liquidation of the conjugal partnership between her and Mr.
Harden. Had she filed said action for divorce and secured a decree of
divorce, said conjugal partnership would have been dissolved and then
liquidated, and the share of Mrs. Harden therein would have been fixed.
However, this cannot take place, either now, or in the foreseeable future,
owing to the aforementioned agreements between Mr. and Mrs. Harden,
which were made for the evident purpose of defeating Appellees claim for
attorneys fees. In other words, the occurrence, within the time
contemplated by the parties bearing in mind the nature of, and the
circumstances under which they entered into, said contract of services of
the event upon which the amount of said fees depended, was rendered
impossible by Mrs. Harden. Hence, whether such event be regarded as a
condition or as a period, she may not insist upon its occurrence, prior to the
enforcement of the rights of the herein Appellee, for the condition shall be
deemed fulfilled when the obligor voluntarily prevents its fulfillment (Art.
1186, Civil Code) and the debtor shall lose every right to make use of the
period when he violates any undertaking, in consideration of which the
creditor agreed to the period. (Art. 1198, Civil Code.)
It should be noted, also, that the compensation agreed upon for Appellees
services, consists of three (3) parts, namely:chanroblesvirtuallawlibrary (a)
25% of the increase in the allowance of Mrs. Harden; chan
roblesvirtualawlibrary(b) litis expensae; chan roblesvirtualawlibraryand (c)
20% of her share in the conjugal partnership. The first part was dealt with in
the first paragraph of their contract of services. The second and third parts
were the object of the second and third paragraphs, respectively. The first
paragraph limited the rights of Appelleethereunder to two (2) years, in the
event of termination of the case or amicable settlement thereof within two
(2) years from the filing of the complaint. No such limitation appears in the
second and third paragraphs of said contract. Hence, the same were
intended by the parties to be fully operative under any and all conditions.
It may not be amiss to add that the value of the properties involved has
been assessed, not summarily, but after due notice and full dress hearing, in
the course of which both parties introduced testimonial and documentary
evidence. Appellants presented Exhibits 1 to 58, whereas those of
the Appellee were so numerous that, having begun with Exhibit A, his last
piece of documentary evidence was marked Exhibit 26 Ys. The transcript of
the hearing, which lasted ten (10) days, covers over 220 pages.
The other assignments of error made by Appellants herein are mere
corollaries of those already disposed of, and, hence, no further discussion
thereof is necessary.
In conclusion, it appears that the assets of the conjugal partnership
between Mr. and Mrs. Harden are reasonably valued at P3,841,109.70. One-
half (1/2) thereof, representing the share of Mrs. Harden, is therefore,
worth P1,920,554.85. Twenty percentum (20%) of this sum is P384,110.97,
which is the contingent fee due to the Appellee, apart from the litis
expensae already paid to him. Inasmuch as the Appellee has collected, also,
the sum of P80,000.00, on account of said contingent fees, there results in
his favor a balance of P304,110.97.
Subject to this qualification, the decision appealed from is hereby affirmed,
therefore, with costs against the Appellants. SO ORDERED.
REPUBLIC OF THE G.R. No. 152577
PHILIPPINES, Present: The proceedings before the RTC commenced with the filing of a
Petitioner,
PUNO, Complaint[3] for declaration of nullity of marriage by respondent Crasus on
Chairman,
AUSTRIA-MARTINEZ, 25 March 1997. According to the said Complaint, respondent Crasus married
CALLEJO, SR.,
- versus- TINGA, and Fely on 16 December 1961 at Bradford Memorial Church, Jones Avenue,
CHICO-NAZARIO, JJ.
Cebu City. As a result of their union, they had five children Crasus, Jr.,
Promulgated:
Daphne, Debbie, Calvert, and Carlos who are now all of legal ages. After the
September 21, 2005
CRASUS L. IYOY, celebration of their marriage, respondent Crasus discovered that Fely was
R e s p o n d e n t.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x hot-tempered, a nagger and extravagant. In 1984, Fely left the Philippines for

the United States of America (U.S.A.), leaving all of their five children, the
DECISION
youngest then being only six years old, to the care of respondent Crasus.

CHICO-NAZARIO, J.: Barely a year after Fely left for the U.S.A., respondent Crasus received a

letter from her requesting that he sign the enclosed divorce papers; he

In this Petition for Review on Certiorari under Rule 45 of the Rules disregarded the said request. Sometime in 1985, respondent Crasus learned,

of Court, petitioner Republic of the Philippines, represented by the Office of through the letters sent by Fely to their children, that Fely got married to an

the Solicitor General, prays for the reversal of the Decision of the Court of American, with whom she eventually had a child. In 1987, Fely came back to

Appeals in CA-G.R. CV No. 62539, dated 30 July 2001,[1] affirming the the Philippines with her American family, staying at Cebu Plaza Hotel in

Judgment of the Regional Trial Court (RTC) of Cebu City, Branch 22, in Cebu City. Respondent Crasus did not bother to talk to Fely because he was

Civil Case No. CEB-20077, dated 30 October 1998,[2] declaring the marriage afraid he might not be able to bear the sorrow and the pain she had caused

between respondent Crasus L. Iyoy and Fely Ada Rosal-Iyoy null and void him. Fely returned to the Philippines several times more: in 1990, for the

on the basis of Article 36 of the Family Code of the Philippines. wedding of their eldest child, Crasus, Jr.; in 1992, for the brain operation of

their fourth child, Calvert; and in 1995, for unknown reasons. Fely continued

to live with her American family in New Jersey, U.S.A. She had been openly
using the surname of her American husband in the Philippines and in the maintenance of their household. She could not have been extravagant since
U.S.A. For the wedding of Crasus, Jr., Fely herself had invitations made in
the family hardly had enough money for basic needs. Indeed, Fely left for
which she was named as Mrs. Fely Ada Micklus. At the time the Complaint
abroad for financial reasons as respondent Crasus had no job and what she
was filed, it had been 13 years since Fely left and abandoned respondent
was then earning as the sole breadwinner in the Philippines was insufficient
Crasus, and there was no more possibility of reconciliation between them.

Respondent Crasus finally alleged in his Complaint that Felys acts brought to support their family. Although she left all of her children with respondent

danger and dishonor to the family, and clearly demonstrated her Crasus, she continued to provide financial support to them, as well as, to

psychological incapacity to perform the essential obligations of marriage. respondent Crasus. Subsequently, Fely was able to bring her children to the
Such incapacity, being incurable and continuing, constitutes a ground for
U.S.A., except for one, Calvert, who had to stay behind for medical reasons.
declaration of nullity of marriage under Article 36, in relation to Articles 68,
While she did file for divorce from respondent Crasus, she denied having
70, and 72, of the Family Code of the Philippines.
herself sent a letter to respondent Crasus requesting him to sign the enclosed

divorce papers. After securing a divorce from respondent Crasus, Fely

Fely filed her Answer and Counterclaim[4] with the RTC on 05 June
married her American husband and acquired American citizenship. She
1997. She asserted therein that she was already an American citizen since
argued that her marriage to her American husband was legal because now
1988 and was now married to Stephen Micklus. While she admitted being
being an American citizen, her status shall be governed by the law of her
previously married to respondent Crasus and having five children with him,
present nationality. Fely also pointed out that respondent Crasus himself was
Fely refuted the other allegations made by respondent Crasus in his
presently living with another woman who bore him a child. She also accused
Complaint. She explained that she was no more hot-tempered than any
respondent Crasus of misusing the amount of P90,000.00 which she
normal person, and she may had been indignant at respondent Crasus on
advanced to him to finance the brain operation of their son, Calvert. On the
certain occasions but it was because of the latters drunkenness, womanizing,
basis of the foregoing, Fely also prayed that the RTC declare her marriage to
and lack of sincere effort to find employment and to contribute to the
respondent Crasus null and void; and that respondent Crasus be ordered to Daphne, upon written interrogatories, before the consular officers of the

Philippines in New York and California, U.S.A, where the said witnesses
pay to Fely the P90,000.00 she advanced to him, with interest, plus, moral
reside. Despite the Orders[12] and Commissions[13]issued by the RTC to the
and exemplary damages, attorneys fees, and litigation expenses.
Philippine Consuls of New York and California, U.S.A., to take the

depositions of the witnesses upon written interrogatories, not a single

After respondent Crasus and Fely had filed their respective Pre-Trial
deposition was ever submitted to the RTC. Taking into account that it had
[5]
Briefs, the RTC afforded both parties the opportunity to present their
been over a year since respondent Crasus had presented his evidence and that
evidence. Petitioner Republic participated in the trial through the Provincial
Fely failed to exert effort to have the case progress, the RTC issued an Order,
[6]
Prosecutor of Cebu.
dated 05 October 1998,[14] considering Fely to have waived her right to

present her evidence. The case was thus deemed submitted for decision.
Respondent Crasus submitted the following pieces of evidence in support of

his Complaint: (1) his own testimony on 08 September 1997, in which he

Not long after, on 30 October 1998, the RTC promulgated its Judgment
[7]
essentially reiterated the allegations in his Complaint; (2) the Certification,
declaring the marriage of respondent Crasus and Fely null and void ab initio,
dated 13 April 1989, by the Health Department of Cebu City, on the
on the basis of the following findings
recording of the Marriage Contract between respondent Crasus and Fely in

the Register of Deeds, such marriage celebration taking place on 16
December 1961;[8] and (3) the invitation to the wedding of Crasus, Jr., their
eldest son, wherein Fely openly used her American husbands surname,
Micklus.[9]
Felys counsel filed a Notice,[10] and, later on, a Motion,[11] to take the
deposition of witnesses, namely, Fely and her children, Crasus, Jr. and
The ground bearing defendants psychological
incapacity deserves a reasonable consideration. As observed,
plaintiffs testimony is decidedly credible. The Court finds
that defendant had indeed exhibited unmistakable signs of
psychological incapacity to comply with her marital duties
such as striving for family unity, observing fidelity, mutual
love, respect, help and support. From the evidence presented,
plaintiff adequately established that the defendant practically
abandoned him. She obtained a divorce decree in the United
States of America and married another man and has establish
[sic] another family of her own. Plaintiff is in an anomalous
situation, wherein he is married to a wife who is already
married to another man in another country.
 Defendants intolerable traits may not have been
apparent or manifest before the marriage, the FAMILY The appellate court, though, in its Decision, dated 30 July 2001, affirmed the
CODE nonetheless allows the annulment of the marriage
provided that these were eventually manifested after the appealed Judgment of the RTC, finding no reversible error therein. It even
wedding. It appears to be the case in this instance.
offered additional ratiocination for declaring the marriage between
Certainly defendants posture being an irresponsible
wife erringly reveals her very low regard for that sacred and respondent Crasus and Fely null and void, to wit
inviolable institution of marriage which is the foundation of
human society throughout the civilized world. It is quite
Defendant secured a divorce from plaintiff-appellee
evident that the defendant is bereft of the mind, will and
abroad, has remarried, and is now permanently residing in
heart to comply with her marital obligations, such incapacity
the United States. Plaintiff-appellee categorically stated this
was already there at the time of the marriage in question is
as one of his reasons for seeking the declaration of nullity of
shown by defendants own attitude towards her marriage to
their marriage
plaintiff.
Article 26 of the Family Code provides:
In sum, the ground invoked by plaintiff which is
defendants psychological incapacity to comply with the
Art. 26. All marriages solemnized
essential marital obligations which already existed at the
outside the Philippines in accordance with
time of the marriage in question has been satisfactorily
the laws in force in the country where they
proven. The evidence in herein case establishes the
were solemnized, and valid there as such,
irresponsibility of defendant Fely Ada Rosal Iyoy, firmly.
shall also be valid in this country, except
those prohibited under Articles 35(1), (4),
Going over plaintiffs testimony which is decidedly
(5) and (6), 36, 37 and 38.
credible, the Court finds that the defendant had indeed
exhibited unmistakable signs of such psychological
WHERE A MARRIAGE
incapacity to comply with her marital obligations. These are
BETWEEN A FILIPINO CITIZEN AND A
her excessive disposition to material things over and above
FOREIGNER IS VALIDLY
the marital stability. That such incapacity was already there
CELEBRATED AND A DIVORCE IS
at the time of the marriage in question is shown by
THEREAFTER VALIDLY OBTAINED
defendants own attitude towards her marriage to plaintiff.
ABROAD BY THE ALIEN SPOUSE
And for these reasons there is a legal ground to declare the
CAPACITATING HIM OR HER TO
marriage of plaintiff Crasus L. Iyoy and defendant Fely Ada
REMARRY, THE FILIPINO SPOUSE
Rosal Iyoy null and void ab initio.[15]
SHALL LIKEWISE HAVE CAPACITY
TO REMARRY UNDER PHILIPPINE
LAW.

Petitioner Republic, believing that the afore-quoted Judgment of the RTC
was contrary to law and evidence, filed an appeal with the Court of Appeals.
The rationale behind the second paragraph of the
above-quoted provision is to avoid the absurd and unjust
situation of a Filipino citizen still being married to his or her
alien spouse, although the latter is no longer married to the
Filipino spouse because he or she has obtained a divorce
 abroad. In the case at bench, the defendant has undoubtedly
acquired her American husbands citizenship and thus has In his Comment[19] to the Petition, respondent Crasus maintained that Felys
become an alien as well. This Court cannot see why the
benefits of Art. 26 aforequoted can not be extended to a psychological incapacity was clearly established after a full-blown trial, and
Filipino citizen whose spouse eventually embraces another
citizenship and thus becomes herself an alien.
that paragraph 2 of Article 26 of the Family Code of the Philippines was
It would be the height of unfairness if, under these
circumstances, plaintiff would still be considered as married indeed applicable to the marriage of respondent Crasus and Fely, because the
to defendant, given her total incapacity to honor her marital
covenants to the former. To condemn plaintiff to remain latter had already become an American citizen. He further questioned the
shackled in a marriage that in truth and in fact does not exist
and to remain married to a spouse who is incapacitated to personality of petitioner Republic, represented by the Office of the Solicitor
discharge essential marital covenants, is verily to condemn
him to a perpetual disadvantage which this Court finds
General, to institute the instant Petition, because Article 48 of the Family
abhorrent and will not countenance. Justice dictates that
plaintiff be given relief by affirming the trial courts
declaration of the nullity of the marriage of the parties.[16] Code of the Philippines authorizes the prosecuting attorney or fiscal assigned

to the trial court, not the Solicitor General, to intervene on behalf of the State,

in proceedings for annulment and declaration of nullity of marriages.

After the Court of Appeals, in a Resolution, dated 08 March

2002,[17] denied its Motion for Reconsideration, petitioner Republic filed the
After having reviewed the records of this case and the applicable laws and
instant Petition before this Court, based on the following arguments/grounds
jurisprudence, this Court finds the instant Petition to be meritorious.

I. Abandonment by and sexual infidelity of

respondents wife do not per se constitute psychological I
incapacity.
The totality of evidence presented during trial is insufficient
II. The Court of Appeals has decided questions of to support the finding of psychological incapacity of Fely.
substance not in accord with law and jurisprudence
considering that the Court of Appeals committed serious
errors of law in ruling that Article 26, paragraph 2 of the
Family Code is inapplicable to the case at bar.[18]
Article 36, concededly one of the more controversial provisions of

the Family Code of the Philippines, reads

 ART. 36. A marriage contracted by any party who,
at the time of the celebration, was psychologically
incapacitated to comply with the essential marital obligations
of marriage, shall likewise be void even if such incapacity
becomes manifest only after its solemnization.
Issues most commonly arise as to what constitutes psychological incapacity.
In a series of cases, this Court laid down guidelines for determining its
existence.
In Santos v. Court of Appeals,[20] the term psychological incapacity was
defined, thus
. . . [P]sychological incapacity should refer to no less than a
mental (not physical) incapacity that causes a party to be
truly cognitive of the basic marital covenants that
concomitantly must be assumed and discharged by the
parties to the marriage which, as so expressed by Article 68
of the Family Code, include their mutual obligations to live
together, observe love, respect and fidelity and render help
and support. There is hardly any doubt that the intendment of
the law has been to confine the meaning of psychological
incapacity to the most serious cases of personality disorders
clearly demonstrative of an utter insensitivity or inability to
give meaning and significance to the marriage. This
psychological condition must exist at the time the marriage
is celebrated[21]
The psychological incapacity must be characterized by
(a) Gravity It must be grave or serious such that the party
would be incapable of carrying out the ordinary duties required in a
marriage;
(b) Juridical Antecedence It must be rooted in the history of
the party antedating the marriage, although the overt manifestations may
emerge only after the marriage; and
(c) Incurability It must be incurable or, even if it were
otherwise, the cure would be beyond the means of the party involved.[22]
More definitive guidelines in the interpretation and application of
Article 36 of the Family Code of the Philippines were handed down by this
Court in Republic v. Court of Appeals and Molina,[23] which, although quite
lengthy, by its significance, deserves to be reproduced below
(1) The burden of proof to show the nullity of the
marriage belongs to the plaintiff. Any doubt should be
resolved in favor of the existence and continuation of the
marriage and against its dissolution and nullity. This is
rooted in the fact that both our Constitution and our laws
cherish the validity of marriage and unity of the family.
Thus, our Constitution devotes an entire Article on the
Family, recognizing it as the foundation of the nation. It
decrees marriage as legally inviolable, thereby protecting it
from dissolution at the whim of the parties. Both the family
and marriage are to be protected by the state.
 The Family Code echoes this constitutional edict on
marriage and the family and emphasizes their permanence,
inviolability and solidarity.
(2) The root cause of the psychological incapacity
must be (a) medically or clinically identified, (b) alleged in
the complaint, (c) sufficiently proven by experts and (d)
clearly explained in the decision. Article 36 of the Family
Code requires that the incapacity must be psychological - not
physical, although its manifestations and/or symptoms may
be physical. The evidence must convince the court that the
parties, or one of them, was mentally or psychically ill to
such an extent that the person could not have known the
obligations he was assuming, or knowing them, could not
have given valid assumption thereof. Although no example
of such incapacity need be given here so as not to limit the
application of the provision under the principle of ejusdem
generis, nevertheless such root cause must be identified as a
psychological illness and its incapacitating nature fully
explained. Expert evidence may be given by qualified
psychiatrists and clinical psychologists.
(3) The incapacity must be proven to be existing at
the time of the celebration of the marriage. The evidence
must show that the illness was existing when the parties
exchanged their I do's. The manifestation of the illness need
not be perceivable at such time, but the illness itself must
have attached at such moment, or prior thereto.
(4) Such incapacity must also be shown to be
medically or clinically permanent or incurable. Such
incurability may be absolute or even relative only in regard
to the other spouse, not necessarily absolutely against
everyone of the same sex. Furthermore, such incapacity must
be relevant to the assumption of marriage obligations, not
necessarily to those not related to marriage, like the exercise
of a profession or employment in a job
(5) Such illness must be grave enough to bring about
the disability of the party to assume the essential obligations
of marriage. Thus, mild characteriological peculiarities,
mood changes, occasional emotional outbursts cannot be
accepted as root causes. The illness must be shown as
downright incapacity or inability, not a refusal, neglect or
difficulty, much less ill will. In other words, there is a natal
or supervening disabling factor in the person, an adverse
integral element in the personality structure that effectively
incapacitates the person from really accepting and thereby
complying with the obligations essential to marriage.
(6) The essential marital obligations must be those
embraced by Articles 68 up to 71 of the Family Code as
regards the husband and wife as well as Articles 220, 221
and 225 of the same Code in regard to parents and their
children. Such non-complied marital obligation(s) must also
be stated in the petition, proven by evidence and included in
the text of the decision.
(7) Interpretations given by the National Appellate
Matrimonial Tribunal of the Catholic Church in the
Philippines, while not controlling or decisive, should be
given great respect by our courts
(8) The trial court must order the prosecuting
attorney or fiscal and the Solicitor General to appear as
counsel for the state. No decision shall be handed down
unless the Solicitor General issues a certification, which will
be quoted in the decision, briefly stating therein his reasons
for his agreement or opposition, as the case may be, to the
petition. The Solicitor General, along with the prosecuting
attorney, shall submit to the court such certification within
fifteen (15) days from the date the case is deemed submitted
for resolution of the court. The Solicitor General shall
discharge the equivalent function of the defensor
vinculi contemplated under Canon 1095.[24]
A later case, Marcos v. Marcos,[25] further clarified that there is no
requirement that the defendant/respondent spouse should be personally
examined by a physician or psychologist as a condition sine qua non for the
declaration of nullity of marriage based on psychological incapacity. Such admissions made by Fely herself in her Answer to respondent Crasuss
psychological incapacity, however, must be established by the totality of the
Complaint filed with the RTC, the evidence is not enough to convince this
evidence presented during the trial.
Court that Fely had such a grave mental illness that prevented her from

assuming the essential obligations of marriage.

Using the guidelines established by the afore-mentioned

jurisprudence, this Court finds that the totality of evidence presented by

It is worthy to emphasize that Article 36 of the Family Code of the
respondent Crasus failed miserably to establish the alleged psychological
Philippines contemplates downright incapacity or inability to take
incapacity of his wife Fely; therefore, there is no basis for declaring their
cognizance of and to assume the basic marital obligations; not a mere refusal,
marriage null and void under Article 36 of the Family Code of the
neglect or difficulty, much less, ill will, on the part of the errant
Philippines.
spouse.[26] Irreconcilable differences, conflicting personalities, emotional

immaturity and irresponsibility, physical abuse, habitual alcoholism, sexual

The only substantial evidence presented by respondent Crasus before
infidelity or perversion, and abandonment, by themselves, also do not
the RTC was his testimony, which can be easily put into question for being
warrant a finding of psychological incapacity under the said Article.[27]
self-serving, in the absence of any other corroborating evidence. He

submitted only two other pieces of evidence: (1) the Certification on the
As has already been stressed by this Court in previous cases, Article 36 is not
recording with the Register of Deeds of the Marriage Contract between
to be confused with a divorce law that cuts the marital bond at the time the
respondent Crasus and Fely, such marriage being celebrated on 16 December
causes therefore manifest themselves. It refers to a serious psychological
1961; and (2) the invitation to the wedding of Crasus, Jr., their eldest son, in
illness afflicting a party even before the celebration of marriage. It is a
which Fely used her American husbands surname. Even considering the
malady so grave and so permanent as to deprive one of awareness of the Molina[30] that the root cause of the incapacity be identified as a

duties and responsibilities of the matrimonial bond one is about to assume.[28] psychological illness and that its incapacitating nature be fully explained.

The evidence may have proven that Fely committed acts that hurt and In any case, any doubt shall be resolved in favor of the validity of the

embarrassed respondent Crasus and the rest of the family. Her hot-temper, marriage.[31] No less than the Constitution of 1987 sets the policy to protect

nagging, and extravagance; her abandonment of respondent Crasus; her and strengthen the family as the basic social institution and marriage as the

marriage to an American; and even her flaunting of her American family and foundation of the family.[32]

her American surname, may indeed be manifestations of her alleged

incapacity to comply with her marital obligations; nonetheless, the root cause II
Article 26, paragraph 2 of the Family Code of the
for such was not identified. If the root cause of the incapacity was not Philippines is not applicable to the case at bar.

identified, then it cannot be satisfactorily established as a psychological or

mental defect that is serious or grave; neither could it be proven to be in

According to Article 26, paragraph 2 of the Family Code of the
existence at the time of celebration of the marriage; nor that it is incurable.
Philippines
While the personal examination of Fely by a psychiatrist or psychologist is Where a marriage between a Filipino citizen and a
foreigner is validly celebrated and a divorce is thereafter
no longer mandatory for the declaration of nullity of their marriage under validly obtained abroad by the alien spouse capacitating him
or her to remarry, the Filipino spouse shall likewise have
Article 36 of the Family Code of the Philippines, by virtue of this Courts capacity to remarry under Philippine law.

ruling in Marcos v. Marcos,[29] respondent Crasus must still have complied As it is worded, Article 26, paragraph 2, refers to a special situation

with the requirement laid down in Republic v. Court of Appeals and wherein one of the couple getting married is a Filipino citizen and the other a

foreigner at the time the marriage was celebrated. By its plain and literal
interpretation, the said provision cannot be applied to the case of
respondent Crasus and his wife Fely because at the time Fely obtained
her divorce, she was still a Filipino citizen. Although the exact date was
not established, Fely herself admitted in her Answer filed before the RTC
that she obtained a divorce from respondent Crasus sometime after she left
for the United States in 1984, after which she married her American husband
in 1985. In the same Answer, she alleged that she had been an American
citizen since 1988. At the time she filed for divorce, Fely was still a Filipino
citizen, and pursuant to the nationality principle embodied in Article 15 of
the Civil Code of the Philippines, she was still bound by Philippine laws on
family rights and duties, status, condition, and legal capacity, even when she
was already living abroad. Philippine laws, then and even until now, do not
allow and recognize divorce between Filipino spouses. Thus, Fely could not
have validly obtained a divorce from respondent Crasus.
III
The Solicitor General is authorized to intervene, on behalf of
the Republic, in proceedings for annulment and declaration
of nullity of marriages.
Invoking Article 48 of the Family Code of the Philippines,
respondent Crasus argued that only the prosecuting attorney or fiscal
assigned to the RTC may intervene on behalf of the State in proceedings for
annulment or declaration of nullity of marriages; hence, the Office of the
Solicitor General had no personality to file the instant Petition on behalf of
the State. Article 48 provides
ART. 48. In all cases of annulment or declaration of
absolute nullity of marriage, the Court shall order the
prosecuting attorney or fiscal assigned to it to appear on
behalf of the State to take steps to prevent collusion between
the parties and to take care that the evidence is not fabricated
or suppressed.
That Article 48 does not expressly mention the Solicitor General does not bar
him or his Office from intervening in proceedings for annulment or
declaration of nullity of marriages. Executive Order No. 292, otherwise
known as the Administrative Code of 1987, appoints the Solicitor General as
the principal law officer and legal defender of the Government.[33] His Office
is tasked to represent the Government of the Philippines, its agencies and
instrumentalities and its officials and agents in any litigation, proceeding,
investigation or matter requiring the services of lawyers. The Office of the
Solicitor General shall constitute the law office of the Government and, as Court. Since it shall be eventually responsible for taking the case to the

such, shall discharge duties requiring the services of lawyers.[34] appellate courts when circumstances demand, then it is only reasonable and

practical that even while the proceeding is still being held before the RTC,

The intent of Article 48 of the Family Code of the Philippines is to ensure the Office of the Solicitor General can already exercise supervision and

that the interest of the State is represented and protected in proceedings for control over the conduct of the prosecuting attorney or fiscal therein to better

annulment and declaration of nullity of marriages by preventing collusion guarantee the protection of the interests of the State.

between the parties, or the fabrication or suppression of evidence; and,

bearing in mind that the Solicitor General is the principal law officer and In fact, this Court had already recognized and affirmed the role of the

legal defender of the land, then his intervention in such proceedings could Solicitor General in several cases for annulment and declaration of nullity of

only serve and contribute to the realization of such intent, rather than thwart marriages that were appealed before it, summarized as follows in the case

it. of Ancheta v. Ancheta[36]

In the case of Republic v. Court of Appeals [268 SCRA 198

Furthermore, the general rule is that only the Solicitor General is authorized (1997)], this Court laid down the guidelines in the
interpretation and application of Art. 48 of the Family Code,
to bring or defend actions on behalf of the People or the Republic of the one of which concerns the role of the prosecuting attorney or
fiscal and the Solicitor General to appear as counsel for the
State:
Philippines once the case is brought before this Court or the Court of
(8) The trial court must order the
Appeals.[35] While it is the prosecuting attorney or fiscal who actively prosecuting attorney or fiscal and the
Solicitor General to appear as counsel for
participates, on behalf of the State, in a proceeding for annulment or the state. No decision shall be handed down
unless the Solicitor General issues a
declaration of nullity of marriage before the RTC, the Office of the Solicitor certification, which will be quoted in the
decision, briefly stating therein his reasons
for his agreement or opposition, as the case
General takes over when the case is elevated to the Court of Appeals or this
may be, to the petition. The Solicitor
 General, along with the prosecuting
attorney, shall submit to the court such
certification within fifteen (15) days from
the date the case is deemed submitted for
resolution of the court. The Solicitor
General shall discharge the equivalent
function of the defensor
vinculi contemplated under Canon 1095.
[Id., at 213]
This Court in the case of Malcampo-Sin v. Sin [355
SCRA 285 (2001)] reiterated its pronouncement in Republic
v. Court of Appeals [Supra.] regarding the role of the
prosecuting attorney or fiscal and the Solicitor General to
appear as counsel for the State[37]
Finally, the issuance of this Court of the Rule on Declaration of Absolute
Nullity of Void Marriages and Annulment of Voidable Marriages,[38] which
became effective on 15 March 2003, should dispel any other doubts of
respondent Crasus as to the authority of the Solicitor General to file the
instant Petition on behalf of the State. The Rule recognizes the authority of
the Solicitor General to intervene and take part in the proceedings for
annulment and declaration of nullity of marriages before the RTC and on
appeal to higher courts. The pertinent provisions of the said Rule are
reproduced below
Sec. 5. Contents and form of petition.
(4) It shall be filed in six copies. The petitioner shall
serve a copy of the petition on the Office of the Solicitor
General and the Office of the City or Provincial Prosecutor,
within five days from the date of its filing and submit to the
court proof of such service within the same period.
Sec. 18. Memoranda. The court may require the
parties and the public prosecutor, in consultation with the
Office of the Solicitor General, to file their respective
memoranda in support of their claims within fifteen days
from the date the trial is terminated. It may require the Office
of the Solicitor General to file its own memorandum if the
case is of significant interest to the State. No other pleadings
or papers may be submitted without leave of court. After the
lapse of the period herein provided, the case will be
considered submitted for decision, with or without the
memoranda.
Sec. 19. Decision.
(2) The parties, including the Solicitor General and
the public prosecutor, shall be served with copies of the
decision personally or by registered mail. If the respondent
summoned by publication failed to appear in the action, the
dispositive part of the decision shall be published once in a
newspaper of general circulation.
(3) The decision becomes final upon the expiration
of fifteen days from notice to the parties. Entry of judgment
shall be made if no motion for reconsideration or new trial,
or appeal is filed by any of the parties, the public prosecutor,
or the Solicitor General.
Sec. 20. Appeal.
(2) Notice of Appeal. An aggrieved party or the
Solicitor General may appeal from the decision by filing a
 Notice of Appeal within fifteen days from notice of denial of
the motion for reconsideration or new trial. The appellant The marriage of respondent Crasus L. Iyoy and Fely Ada Rosal-Iyoy remains
shall serve a copy of the notice of appeal on the adverse
parties. valid and subsisting.

Given the foregoing, this Court arrives at a conclusion contrary to those of

the RTC and the Court of Appeals, and sustains the validity and existence of

the marriage between respondent Crasus and Fely. At most, Felys

abandonment, sexual infidelity, and bigamy, give respondent Crasus grounds

to file for legal separation under Article 55 of the Family Code of the

Philippines, but not for declaration of nullity of marriage under Article 36 of

the same Code. While this Court commiserates with respondent Crasus for

being continuously shackled to what is now a hopeless and loveless

marriage, this is one of those situations where neither law nor society can

provide the specific answer to every individual problem.[39]

WHEREFORE, the Petition is GRANTED and the assailed Decision of the

Court of Appeals in CA-G.R. CV No. 62539, dated 30 July 2001, affirming

the Judgment of the RTC of Cebu City, Branch 22, in Civil Case No. CEB-

20077, dated 30 October 1998, is REVERSED and SET ASIDE.

 [G.R. No. 124371. November 23, 2000]
PAULA T. LLORENTE, petitioner, vs. COURT OF APPEALS and
ALICIA F. LLORENTE, respondents.
DECISION
PARDO, J.:
The Case
The case raises a conflict of laws issue.
What is before us is an appeal from the decision of the Court of
Appeals[1] modifying that of the Regional Trial Court, Camarines Sur,
Branch 35, Iriga City[2] declaring respondent Alicia F. Llorente
(herinafter referred to as Alicia), as co-owners of whatever property
she and the deceased Lorenzo N. Llorente (hereinafter referred to as
Lorenzo) may have acquired during the twenty-five (25) years that
they lived together as husband and wife.
The Facts
The deceased Lorenzo N. Llorente was an enlisted serviceman of
the United States Navy from March 10, 1927 to September 30,
1957.[3]
On February 22, 1937, Lorenzo and petitioner Paula Llorente
(hereinafter referred to as Paula) were married before a parish priest,
Roman Catholic Church, in Nabua, Camarines Sur.[4]
Before the outbreak of the Pacific War, Lorenzo departed for the
United States and Paula stayed in the conjugal home in barrio
Antipolo, Nabua, Camarines Sur.[5]
On November 30, 1943, Lorenzo was admitted to United States
citizenship and Certificate of Naturalization No. 5579816 was issued
in his favor by the United States District Court, Southern District of
New York.[6]
Upon the liberation of the Philippines by the American Forces in
1945, Lorenzo was granted an accrued leave by the U. S. Navy, to
visit his wife and he visited the Philippines.[7] He discovered that his
wife Paula was pregnant and was living in and having an adulterous
relationship with his brother, Ceferino Llorente.[8]
On December 4, 1945, Paula gave birth to a boy registered in the
Office of the Registrar of Nabua as Crisologo Llorente, with the
certificate stating that the child was not legitimate and the line for the
fathers name was left blank.[9]
Lorenzo refused to forgive Paula and live with her. In fact, on
February 2, 1946, the couple drew a written agreement to the effect
that (1) all the family allowances allotted by the United States Navy as
part of Lorenzos salary and all other obligations for Paulas daily
maintenance and support would be suspended; (2) they would
dissolve their marital union in accordance with judicial proceedings;
(3) they would make a separate agreement regarding their conjugal
property acquired during their marital life; and (4) Lorenzo would not
prosecute Paula for her adulterous act since she voluntarily admitted
her fault and agreed to separate from Lorenzo peacefully. The
agreement was signed by both Lorenzo and Paula and was witnessed
by Paulas father and stepmother. The agreement was notarized by
Notary Public Pedro Osabel.[10]
Lorenzo returned to the United States and on November 16, 1951
filed for divorce with the Superior Court of the State of California in
and for the County of San Diego. Paula was represented by counsel,
John Riley, and actively participated in the proceedings. On
November 27, 1951, the Superior Court of the State of California, for
the County of San Diego found all factual allegations to be true and
issued an interlocutory judgment of divorce.[11]
On December 4, 1952, the divorce decree became final.[12]
In the meantime, Lorenzo returned to the Philippines.
On January 16, 1958, Lorenzo married Alicia F. Llorente in
Manila.[13] Apparently, Alicia had no knowledge of the first marriage
even if they resided in the same town as Paula, who did not oppose
the marriage or cohabitation.[14]
 From 1958 to 1985, Lorenzo and Alicia lived together as husband
and wife.[15] Their twenty-five (25) year union produced three children,
Raul, Luz and Beverly, all surnamed Llorente.[16]
On March 13, 1981, Lorenzo executed a Last Will and
Testament. The will was notarized by Notary Public Salvador M.
Occiano, duly signed by Lorenzo with attesting witnesses Francisco
Hugo, Francisco Neibres and Tito Trajano. In the will, Lorenzo
bequeathed all his property to Alicia and their three children, to wit:
(1) I give and bequeath to my wife ALICIA R. FORTUNO exclusively
my residential house and lot, located at San Francisco, Nabua,
Camarines Sur, Philippines, including ALL the personal properties and
other movables or belongings that may be found or existing therein;
(2) I give and bequeath exclusively to my wife Alicia R. Fortuno and to
my children, Raul F. Llorente, Luz F. Llorente and Beverly F. Llorente,
in equal shares, all my real properties whatsoever and wheresoever
located, specifically my real properties located at Barangay Aro-Aldao,
Nabua, Camarines Sur; Barangay Paloyon, Nabua, Camarines Sur;
Barangay Baras, Sitio Puga, Nabua, Camarines Sur; and Barangay
Paloyon, Sitio Nalilidong, Nabua, Camarines Sur;
(3) I likewise give and bequeath exclusively unto my wife Alicia R.
Fortuno and unto my children, Raul F. Llorente, Luz F. Llorente and
Beverly F. Llorente, in equal shares, my real properties located in
Quezon City Philippines, and covered by Transfer Certificate of Title
No. 188652; and my lands in Antipolo, Rizal, Philippines, covered by
Transfer Certificate of Title Nos. 124196 and 165188, both of the
Registry of Deeds of the province of Rizal, Philippines;
(4) That their respective shares in the above-mentioned properties,
whether real or personal properties, shall not be disposed of, ceded,
sold and conveyed to any other persons, but could only be sold,
ceded, conveyed and disposed of by and among themselves;
(5) I designate my wife ALICIA R. FORTUNO to be the sole executor
of this my Last Will and Testament, and in her default or incapacity of
the latter to act, any of my children in the order of age, if of age;
(6) I hereby direct that the executor named herein or her lawful
substitute should served (sic) without bond;
(7) I hereby revoke any and all my other wills, codicils, or
testamentary dispositions heretofore executed, signed, or published,
by me;
(8) It is my final wish and desire that if I die, no relatives of mine in any
degree in the Llorentes Side should ever bother and disturb in any
manner whatsoever my wife Alicia R. Fortunato and my children with
respect to any real or personal properties I gave and bequeathed
respectively to each one of them by virtue of this Last Will and
Testament.[17]
On December 14, 1983, Lorenzo filed with the Regional Trial
Court, Iriga, Camarines Sur, a petition for the probate and allowance
of his last will and testament wherein Lorenzo moved that Alicia be
appointed Special Administratrix of his estate.[18]
On January 18, 1984, the trial court denied the motion for the
reason that the testator Lorenzo was still alive.[19]
On January 24, 1984, finding that the will was duly executed, the
trial court admitted the will to probate.[20]
On June 11, 1985, before the proceedings could be terminated,
Lorenzo died.[21]
On September 4, 1985, Paula filed with the same court a
petition[22] for letters of administration over Lorenzos estate in her
favor. Paula contended (1) that she was Lorenzos surviving spouse,
(2) that the various property were acquired during their marriage, (3)
that Lorenzos will disposed of all his property in favor of Alicia and her
children, encroaching on her legitime and 1/2 share in the conjugal
property.[23]
On December 13, 1985, Alicia filed in the testate proceeding (Sp.
Proc. No. IR-755), a petition for the issuance of letters
testamentary.[24]
On October 14, 1985, without terminating the testate
proceedings, the trial court gave due course to Paulas petition in Sp.
Proc. No. IR-888.[25]
On November 6, 13 and 20, 1985, the order was published in the
newspaper Bicol Star.[26]
 On May 18, 1987, the Regional Trial Court issued a joint decision, In time, Alicia filed with the trial court a motion for reconsideration
thus: of the aforequoted decision.[28]
On September 14, 1987, the trial court denied Alicias motion for
Wherefore, considering that this court has so found that the divorce
reconsideration but modified its earlier decision, stating that Raul and
decree granted to the late Lorenzo Llorente is void and inapplicable in
Luz Llorente are not children legitimate or otherwise of Lorenzo since
the Philippines, therefore the marriage he contracted with Alicia
they were not legally adopted by him.[29] Amending its decision of May
Fortunato on January 16, 1958 at Manila is likewise void. This being
18, 1987, the trial court declared Beverly Llorente as the only
so the petition of Alicia F. Llorente for the issuance of letters
illegitimate child of Lorenzo, entitling her to one-third (1/3) of the
testamentary is denied. Likewise, she is not entitled to receive any
estate and one-third (1/3) of the free portion of the estate.[30]
share from the estate even if the will especially said so her
relationship with Lorenzo having gained the status of paramour which On September 28, 1987, respondent appealed to the Court of
is under Art. 739 (1). Appeals.[31]
On July 31, 1995, the Court of Appeals promulgated its decision,
On the other hand, the court finds the petition of Paula Titular
affirming with modification the decision of the trial court in this wise:
Llorente, meritorious, and so declares the intrinsic disposition of the
will of Lorenzo Llorente dated March 13, 1981 as void and declares
her entitled as conjugal partner and entitled to one-half of their WHEREFORE, the decision appealed from is hereby AFFIRMED with
conjugal properties, and as primary compulsory heir, Paula T. the MODIFICATION that Alicia is declared as co-owner of whatever
Llorente is also entitled to one-third of the estate and then one-third properties she and the deceased may have acquired during the
should go to the illegitimate children, Raul, Luz and Beverly, all twenty-five (25) years of cohabitation.
surname (sic) Llorente, for them to partition in equal shares and also
entitled to the remaining free portion in equal shares.

Petitioner, Paula Llorente is appointed legal administrator of the

estate of the deceased, Lorenzo Llorente. As such let the
corresponding letters of administration issue in her favor upon her
filing a bond in the amount (sic) of P100,000.00 conditioned for her to
make a return to the court within three (3) months a true and complete
inventory of all goods, chattels, rights, and credits, and estate which
shall at any time come to her possession or to the possession of any
other person for her, and from the proceeds to pay and discharge all
debts, legacies and charges on the same, or such dividends thereon
as shall be decreed or required by this court; to render a true and just
account of her administration to the court within one (1) year, and at
any other time when required by the court and to perform all orders of
this court by her to be performed.

On the other matters prayed for in respective petitions for want of

evidence could not be granted.

SO ORDERED.[27]
REPUBLIC OF THE PHILIPPINES, G.R. No. 154380
Given a valid marriage between two Filipino citizens, where one
Petitioner,
party is later naturalized as a foreign citizen and obtains a valid divorce

decree capacitating him or her to remarry, can the Filipino spouse likewise
Present:

remarry under Philippine law?

Davide, Jr., C.J.,

Before us is a case of first impression that behooves the Court to
- versus - (Chairman),
make a definite ruling on this apparently novel question, presented as a
Quisumbing,
pure question of law.
Ynares-Santiago,

Carpio, and
In this petition for review, the Solicitor General assails
Azcuna, JJ.
the Decision[1] dated May 15, 2002, of the Regional Trial Court of Molave,
CIPRIANO ORBECIDO III,
Zamboanga del Sur, Branch 23 and its Resolution[2] dated July 4, 2002
Respondent. Promulgated:
denying the motion for reconsideration. The court a quo had declared that
October 5, 2005
herein respondent Cipriano Orbecido III is capacitated to remarry.

x--------------------------------------------------x The fallo of the impugned Decision reads:

WHEREFORE, by virtue of the provision of the second

paragraph of Art. 26 of the Family Code and by reason of
DECISION
the divorce decree obtained against him by his American
wife, the petitioner is given the capacity to remarry under
QUISUMBING, J.:
the Philippine Law.

IT IS SO ORDERED.[3]
The factual antecedents, as narrated by the trial court, are as follows. In this petition, the OSG raises a pure question of law:

WHETHER OR NOT RESPONDENT CAN REMARRY UNDER

On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at ARTICLE 26 OF THE FAMILY CODE[4]

the United Church of Christ in the Philippines in Lam-an, Ozamis City. Their

marriage was blessed with a son and a daughter, Kristoffer Simbortriz V. The OSG contends that Paragraph 2 of Article 26 of the Family Code is not

Orbecido and Lady Kimberly V. Orbecido. applicable to the instant case because it only applies to a valid mixed

marriage; that is, a marriage celebrated between a Filipino citizen and an

In 1986, Ciprianos wife left for the United States bringing along their
alien. The proper remedy, according to the OSG, is to file a petition for
son Kristoffer. A few years later, Cipriano discovered that his wife had been
annulment or for legal separation.[5] Furthermore, the OSG argues there is
naturalized as an American citizen.
no law that governs respondents situation. The OSG posits that this is a

Sometime in 2000, Cipriano learned from his son that his wife had matter of legislation and not of judicial determination.[6]

obtained a divorce decree and then married a certain Innocent Stanley. She,
For his part, respondent admits that Article 26 is not directly applicable to
Stanley and her child by him currently live at 5566 A. Walnut Grove Avenue,
his case but insists that when his naturalized alien wife obtained a divorce
San Gabriel, California.
decree which capacitated her to remarry, he is likewise capacitated by

Cipriano thereafter filed with the trial court a petition for authority to operation of law pursuant to Section 12, Article II of the Constitution.[7]

remarry invoking Paragraph 2 of Article 26 of the Family Code. No

At the outset, we note that the petition for authority to remarry filed before
opposition was filed. Finding merit in the petition, the court granted the
the trial court actually constituted a petition for declaratory relief. In this
same. The Republic, herein petitioner, through the Office of the Solicitor
connection, Section 1, Rule 63 of the Rules of Court provides:
General (OSG), sought reconsideration but it was denied.
RULE 63
 DECLARATORY RELIEF AND SIMILAR REMEDIES
Respondent, praying for relief, has legal interest in the controversy. The

issue raised is also ripe for judicial determination inasmuch as when

Section 1. Who may file petitionAny person interested
under a deed, will, contract or other written instrument, or respondent remarries, litigation ensues and puts into question the validity
whose rights are affected by a statute, executive order or
regulation, ordinance, or other governmental regulation of his second marriage.
may, before breach or violation thereof, bring an action in
the appropriate Regional Trial Court to determine any
question of construction or validity arising, and for a Coming now to the substantive issue, does Paragraph 2 of Article 26 of the
declaration of his rights or duties, thereunder.
Family Code apply to the case of respondent? Necessarily, we must dwell on
...
how this provision had come about in the first place, and what was the

intent of the legislators in its enactment?

The requisites of a petition for declaratory relief are: (1) there must be a

justiciable controversy; (2) the controversy must be between persons whose

Brief Historical Background
interests are adverse; (3) that the party seeking the relief has a legal interest

in the controversy; and (4) that the issue is ripe for judicial determination.[8] On July 6, 1987, then President Corazon Aquino signed into law

Executive Order No. 209, otherwise known as the Family Code, which took
This case concerns the applicability of Paragraph 2 of Article 26 to a
effect on August 3, 1988. Article 26 thereof states:
marriage between two Filipino citizens where one later acquired alien
All marriages solemnized outside the Philippines in
citizenship, obtained a divorce decree, and remarried while in the U.S.A. The accordance with the laws in force in the country where they
were solemnized, and valid there as such, shall also be valid
interests of the parties are also adverse, as petitioner representing the State in this country, except those prohibited under Articles 35,
37, and 38.
asserts its duty to protect the institution of marriage while respondent, a

private citizen, insists on a declaration of his capacity to remarry.

 On July 17, 1987, shortly after the signing of the original Family obtained a divorce granting her capacity to remarry, and indeed she

Code, Executive Order No. 227 was likewise signed into law, amending remarried an American citizen while residing in the U.S.A.

Articles 26, 36, and 39 of the Family Code. A second paragraph was added
Noteworthy, in the Report of the Public Hearings[9] on the Family
to Article 26. As so amended, it now provides:
Code, the Catholic Bishops Conference of the Philippines (CBCP) registered
ART. 26. All marriages solemnized outside the
Philippines in accordance with the laws in force in the the following objections to Paragraph 2 of Article 26:
country where they were solemnized, and valid there as
1. The rule is discriminatory. It discriminates
such, shall also be valid in this country, except those
against those whose spouses are Filipinos who
prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and
divorce them abroad. These spouses who are
38.
divorced will not be able to re-marry, while the
Where a marriage between a Filipino citizen and a spouses of foreigners who validly divorce them
foreigner is validly celebrated and a divorce is thereafter abroad can.
validly obtained abroad by the alien spouse capacitating
2. This is the beginning of the recognition of the
him or her to remarry, the Filipino spouse shall have
validity of divorce even for Filipino citizens. For
capacity to remarry under Philippine law. (Emphasis
those whose foreign spouses validly divorce them
supplied)
abroad will also be considered to be validly divorced
here and can re-marry. We propose that this be
deleted and made into law only after more
On its face, the foregoing provision does not appear to govern the widespread consultation. (Emphasis supplied.)

situation presented by the case at hand. It seems to apply only to cases

where at the time of the celebration of the marriage, the parties are a Legislative Intent

Filipino citizen and a foreigner. The instant case is one where at the time the
Records of the proceedings of the Family Code deliberations
marriage was solemnized, the parties were two Filipino citizens, but later
showed that the intent of Paragraph 2 of Article 26, according to Judge
on, the wife was naturalized as an American citizen and subsequently
Alicia Sempio-Diy, a member of the Civil Code Revision Committee, is to
avoid the absurd situation where the Filipino spouse remains married to the foreign spouse is no longer married under Philippine law and can thus

alien spouse who, after obtaining a divorce, is no longer married to the remarry.

Filipino spouse.
Thus, taking into consideration the legislative intent and applying

Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 the rule of reason, we hold that Paragraph 2 of Article 26 should be

case of Van Dorn v. Romillo, Jr.[10] The Van Dorn case involved a marriage interpreted to include cases involving parties who, at the time of the

between a Filipino citizen and a foreigner. The Court held therein that a celebration of the marriage were Filipino citizens, but later on, one of them

divorce decree validly obtained by the alien spouse is valid in the becomes naturalized as a foreign citizen and obtains a divorce decree. The

Philippines, and consequently, the Filipino spouse is capacitated to remarry Filipino spouse should likewise be allowed to remarry as if the other party

under Philippine law. were a foreigner at the time of the solemnization of the marriage. To rule

otherwise would be to sanction absurdity and injustice. Where the

Does the same principle apply to a case where at the time of the
interpretation of a statute according to its exact and literal import would
celebration of the marriage, the parties were Filipino citizens, but later on,
lead to mischievous results or contravene the clear purpose of the
one of them obtains a foreign citizenship by naturalization?
legislature, it should be construed according to its spirit and reason,

The jurisprudential answer lies latent in the 1998 case of Quita v. disregarding as far as necessary the letter of the law. A statute may

Court of Appeals.[11] In Quita, the parties were, as in this case, Filipino therefore be extended to cases not within the literal meaning of its terms,

citizens when they got married. The wife became a naturalized American so long as they come within its spirit or intent.[12]

citizen in 1954 and obtained a divorce in the same year. The Court therein
If we are to give meaning to the legislative intent to avoid the
hinted, by way of obiter dictum, that a Filipino divorced by his naturalized
absurd situation where the Filipino spouse remains married to the alien
spouse who, after obtaining a divorce is no longer married to the Filipino the twin requisites for the application of Paragraph 2 of Article 26 are both

spouse, then the instant case must be deemed as coming within the present in this case. Thus Cipriano, the divorced Filipino spouse, should be

contemplation of Paragraph 2 of Article 26. allowed to remarry.

In view of the foregoing, we state the twin elements for the We are also unable to sustain the OSGs theory that the proper

application of Paragraph 2 of Article 26 as follows: remedy of the Filipino spouse is to file either a petition for annulment or a

1. There is a valid marriage that has been petition for legal separation. Annulment would be a long and tedious
celebrated between a Filipino citizen and a
foreigner; and process, and in this particular case, not even feasible, considering that the

2. A valid divorce is obtained abroad by the alien marriage of the parties appears to have all the badges of validity. On the
spouse capacitating him or her to remarry.
other hand, legal separation would not be a sufficient remedy for it would

not sever the marriage tie; hence, the legally separated Filipino spouse
The reckoning point is not the citizenship of the parties at the time of
would still remain married to the naturalized alien spouse.
the celebration of the marriage, but their citizenship at the time a valid
However, we note that the records are bereft of competent evidence duly
divorce is obtained abroad by the alien spouse capacitating the latter to
submitted by respondent concerning the divorce decree and the
remarry.
naturalization of respondents wife. It is settled rule that one who alleges a
In this case, when Ciprianos wife was naturalized as an American
fact has the burden of proving it and mere allegation is not evidence.[13]
citizen, there was still a valid marriage that has been celebrated between

her and Cipriano. As fate would have it, the naturalized alien wife Accordingly, for his plea to prosper, respondent herein must prove his

subsequently obtained a valid divorce capacitating her to remarry. Clearly, allegation that his wife was naturalized as an American citizen. Likewise,

before a foreign divorce decree can be recognized by our own courts, the
party pleading it must prove the divorce as a fact and demonstrate its could only be made properly upon respondents submission of the

conformity to the foreign law allowing it.[14] Such foreign law must also be aforecited evidence in his favor.

proved as our courts cannot take judicial notice of foreign laws. Like any
ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED.
[15]
other fact, such laws must be alleged and proved. Furthermore,
The assailed Decision dated May 15, 2002, and Resolution dated July 4,
respondent must also show that the divorce decree allows his former wife
2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23,
to remarry as specifically required in Article 26. Otherwise, there would be
are hereby SET ASIDE.
no evidence sufficient to declare that he is capacitated to enter into another

marriage. No pronouncement as to costs.

Nevertheless, we are unanimous in our holding that Paragraph 2 of Article

26 of the Family Code (E.O. No. 209, as amended by E.O. No. 227), should be

interpreted to allow a Filipino citizen, who has been divorced by a spouse

who had acquired foreign citizenship and remarried, also to remarry.

However, considering that in the present petition there is no sufficient

evidence submitted and on record, we are unable to declare, based on

respondents bare allegations that his wife, who was naturalized as an

American citizen, had obtained a divorce decree and had remarried an

American, that respondent is now capacitated to remarry. Such declaration