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[Adm. Matter No. MTJ-96-1088. July 19, 1996.

RODOLFO G., NAVARRO, Complainant, v. JUDGE HERNANDO C. DOMAGTOY, Respondent.

1. CIVIL LAW; FAMILY CODE; MARRIAGES; DECLARATION OF PRESUMPTIVE DEATH; NECESSARY IN


ORDER TO CONTRACT A SUBSEQUENT MARRIAGE. 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 wifes
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 . . . marriages
not falling under Article 41."cralaw virtua1aw library

2. ID.; ID.; ID.; INSTANCES WHEN A., MARRIAGE CAN BE HELD OUTSIDE OF THE JUDGES CHAMBERS
OR COURTROOM. Respondent judge points to Article 8 and its exceptions as the justification for his having
solemnized the marriage between Floriano Sumaylo and Gemma del Rosario outside of his courts jurisdiction. As
the aforequoted provision states, a marriage can be held outside of the judges 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.

3. ID.; ID.; ID.; JUDGES MAY SOLEMNIZE A MARRIAGE ONLY WITHIN HIS COURTS JURISDICTION. 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 courts 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
courts 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 administrative liability.

4. LEGAL AND JUDICIAL ETHICS; JUDGES; IGNORANCE OF ELEMENTARY PROVISIONS OF THE LAW;
CONSTITUTES GROSS IGNORANCE OF THE LAW. 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 respondents failure to apply them is due to 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. It is not too much to expect them to know and apply the law intelligently. 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 art area which has greatly prejudiced the status of married
persons.
ROMERO, J.:p

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 . . . 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;

xxx xxx xxx (Emphasis supplied.)

Art. 8. The marriage shall be solemnized publicly in the chambers 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 justification 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 the 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 administrative liability. 5

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 given a STERN WARNING that a repetition of the same or similar acts will be dealt with more
severely.
G.R. No. 133778 March 14, 2000

ENGRACE NIAL for Herself and as Guardian ad Litem of the minors BABYLINE NIAL, INGRID NIAL,
ARCHIE NIAL & PEPITO NIAL, JR., petitioners,
vs.
NORMA BAYADOG, respondent.

YNARES-SANTIAGO, J.:

May the heirs of a deceased person file a petition for the declaration of nullity of his marriage after his death?

Pepito Nial was married to Teodulfa Bellones on September 26, 1974. Out of their marriage were born herein
petitioners. Teodulfa was shot by Pepito resulting in her death on April 24, 1985. One year and 8 months thereafter
or on December 11, 1986, Pepito and respondent Norma Badayog got married without any marriage license. In lieu
thereof, Pepito and Norma executed an affidavit dated December 11, 1986 stating that they had lived together as
husband and wife for at least five years and were thus exempt from securing a marriage license. On February 19,
1997, Pepito died in a car accident. After their father's death, petitioners filed a petition for declaration of nullity of
the marriage of Pepito to Norma alleging that the said marriage was void for lack of a marriage license. The case
was filed under the assumption that the validity or invalidity of the second marriage would affect petitioner's
successional rights. Norma filed a motion to dismiss on the ground that petitioners have no cause of action since
they are not among the persons who could file an action for "annulment of marriage" under Article 47 of the Family
Code.

Judge Ferdinand J. Marcos of the Regional Trial Court of Toledo City, Cebu, Branch 59, dismissed the petition after
finding that the Family Code is "rather silent, obscure, insufficient" to resolve the following issues:

(1) Whether or not plaintiffs have a cause of action against defendant in asking for the declaration of the
nullity of marriage of their deceased father, Pepito G. Nial, with her specially so when at the time of the
filing of this instant suit, their father Pepito G. Nial is already dead;

(2) Whether or not the second marriage of plaintiffs' deceased father with defendant is null and void ab initio;

(3) Whether or not plaintiffs are estopped from assailing the validity of the second marriage after it was
dissolved due to their father's death. 1

Thus, the lower court ruled that petitioners should have filed the action to declare null and void their father's
marriage to respondent before his death, applying by analogy Article 47 of the Family Code which enumerates the
time and the persons who could initiate an action for annulment of marriage. 2 Hence, this petition for review with this
Court grounded on a pure question of law.

This petition was originally dismissed for non-compliance with Section 11, Rule 13 of the 1997 Rules of Civil
Procedure, and because "the verification failed to state the basis of petitioner's averment that the allegations in the
petition are "true and correct"." It was thus treated as an unsigned pleading which produces no legal effect under
Section 3, Rule 7, of the 1997 Rules. 3 However, upon motion of petitioners, this Court reconsidered the dismissal
and reinstated the petition for review. 4

The two marriages involved herein having been solemnized prior to the effectivity of the Family Code (FC), the
applicable law to determine their validity is the Civil Code which was the law in effect at the time of their
celebration. 5 A valid marriage license is a requisite of marriage under Article 53 of the Civil Code, 6 the absence of
which renders the marriage void ab initio pursuant to Article 80(3) 7 in relation to Article 58. 8 The requirement and
issuance of marriage license is the State's demonstration of its involvement and participation in every marriage, in
the maintenance of which the general public is interested. 9 This interest proceeds from the constitutional mandate
that the State recognizes the sanctity of family life and of affording protection to the family as a basic "autonomous
social institution." 10 Specifically, the Constitution considers marriage as an "inviolable social institution," and is the
foundation of family life which shall be protected by the State. 11 This is why the Family Code considers marriage as
"a special contract of permanent union" 12 and case law considers it "not just an adventure but a lifetime
commitment." 13
However, there are several instances recognized by the Civil Code wherein a marriage license is dispensed with,
one of which is that provided in Article 76, 14 referring to the marriage of a man and a woman who have lived together
and exclusively with each other as husband and wife for a continuous and unbroken period of at least five years
before the marriage. The rationale why no license is required in such case is to avoid exposing the parties to
humiliation, shame and embarrassment concomitant with the scandalous cohabitation of persons outside a valid
marriage due to the publication of every applicant's name for a marriage license. The publicity attending the
marriage license may discourage such persons from legitimizing their status. 15 To preserve peace in the family,
avoid the peeping and suspicious eye of public exposure and contain the source of gossip arising from the
publication of their names, the law deemed it wise to preserve their privacy and exempt them from that requirement.

There is no dispute that the marriage of petitioners' father to respondent Norma was celebrated without any
marriage license. In lieu thereof, they executed an affidavit stating that "they have attained the age of majority, and,
being unmarried, have lived together as husband and wife for at least five years, and that we now desire to marry
each other." 16 The only issue that needs to be resolved pertains to what nature of cohabitation is contemplated
under Article 76 of the Civil Code to warrant the counting of the five year period in order to exempt the future
spouses from securing a marriage license. Should it be a cohabitation wherein both parties are capacitated to marry
each other during the entire five-year continuous period or should it be a cohabitation wherein both parties have
lived together and exclusively with each other as husband and wife during the entire five-year continuous period
regardless of whether there is a legal impediment to their being lawfully married, which impediment may have either
disappeared or intervened sometime during the cohabitation period?

Working on the assumption that Pepito and Norma have lived together as husband and wife for five years without
the benefit of marriage, that five-year period should be computed on the basis of a cohabitation as "husband and
wife" where the only missing factor is the special contract of marriage to validate the union. In other words, the five-
year common-law cohabitation period, which is counted back from the date of celebration of marriage, should be a
period of legal union had it not been for the absence of the marriage. This 5-year period should be the years
immediately before the day of the marriage and it should be a period of cohabitation characterized by exclusivity
meaning no third party was involved at anytime within the 5 years and continuity that is unbroken. Otherwise, if
that continuous 5-year cohabitation is computed without any distinction as to whether the parties were capacitated
to marry each other during the entire five years, then the law would be sanctioning immorality and encouraging
parties to have common law relationships and placing them on the same footing with those who lived faithfully with
their spouse. Marriage being a special relationship must be respected as such and its requirements must be strictly
observed. The presumption that a man and a woman deporting themselves as husband and wife is based on the
approximation of the requirements of the law. The parties should not be afforded any excuse to not comply with
every single requirement and later use the same missing element as a pre-conceived escape ground to nullify their
marriage. There should be no exemption from securing a marriage license unless the circumstances clearly fall
within the ambit of the exception. It should be noted that a license is required in order to notify the public that two
persons are about to be united in matrimony and that anyone who is aware or has knowledge of any impediment to
the union of the two shall make it known to the local civil registrar. 17 The Civil Code provides:

Art. 63: . . . This notice shall request all persons having knowledge of any impediment to the marriage to
advice the local civil registrar thereof. . . .

Art. 64: Upon being advised of any alleged impediment to the marriage, the local civil registrar shall forthwith
make an investigation, examining persons under oath. . . .

This is reiterated in the Family Code thus:

Art. 17 provides in part: . . . This notice shall request all persons having knowledge of any impediment to the
marriage to advise the local civil registrar thereof. . . .

Art. 18 reads in part: . . . In case of any impediment known to the local civil registrar or brought to his
attention, he shall note down the particulars thereof and his findings thereon in the application for a marriage
license. . . .

This is the same reason why our civil laws, past or present, absolutely prohibited the concurrence of multiple
marriages by the same person during the same period. Thus, any marriage subsequently contracted during the
lifetime of the first spouse shall be illegal and void, 18 subject only to the exception in cases of absence or where the
prior marriage was dissolved or annulled. The Revised Penal Code complements the civil law in that the contracting
of two or more marriages and the having of extramarital affairs are considered felonies, i.e., bigamy and
concubinage and adultery. 19 The law sanctions monogamy.

In this case, at the time of Pepito and respondent's marriage, it cannot be said that they have lived with each other
as husband and wife for at least five years prior to their wedding day. From the time Pepito's first marriage was
dissolved to the time of his marriage with respondent, only about twenty months had elapsed. Even assuming that
Pepito and his first wife had separated in fact, and thereafter both Pepito and respondent had started living with
each other that has already lasted for five years, the fact remains that their five-year period cohabitation was not the
cohabitation contemplated by law. It should be in the nature of a perfect union that is valid under the law but
rendered imperfect only by the absence of the marriage contract. Pepito had a subsisting marriage at the time when
he started cohabiting with respondent. It is immaterial that when they lived with each other, Pepito had already been
separated in fact from his lawful spouse. The subsistence of the marriage even where there was actual severance of
the filial companionship between the spouses cannot make any cohabitation by either spouse with any third party as
being one as "husband and wife".

Having determined that the second marriage involved in this case is not covered by the exception to the requirement
of a marriage license, it is void ab initio because of the absence of such element.

The next issue to be resolved is: do petitioners have the personality to file a petition to declare their father's
marriage void after his death?

Contrary to respondent judge's ruling, Article 47 of the Family Code 20 cannot be applied even by analogy to petitions
for declaration of nullity of marriage. The second ground for annulment of marriage relied upon by the trial court,
which allows "the sane spouse" to file an annulment suit "at anytime before the death of either party" is inapplicable.
Article 47 pertains to the grounds, periods and persons who can file an annulment suit, not a suit for declaration of
nullity of marriage. The Code is silent as to who can file a petition to declare the nullity of a marriage. Voidable and
void marriages are not identical. A marriage that is annulable is valid until otherwise declared by the court; whereas
a marriage that is void ab initio is considered as having never to have taken place 21 and cannot be the source of
rights. The first can be generally ratified or confirmed by free cohabitation or prescription while the other can never
be ratified. A voidable marriage cannot be assailed collaterally except in a direct proceeding while a void marriage
can be attacked collaterally. Consequently, void marriages can be questioned even after the death of either party
but voidable marriages can be assailed only during the lifetime of the parties and not after death of either, in which
case the parties and their offspring will be left as if the marriage had been perfectly valid. 22 That is why the action or
defense for nullity is imprescriptible, unlike voidable marriages where the action prescribes. Only the parties to a
voidable marriage can assail it but any proper interested party may attack a void marriage. Void marriages have no
legal effects except those declared by law concerning the properties of the alleged spouses, regarding co-ownership
or ownership through actual joint contribution, 23 and its effect on the children born to such void marriages as
provided in Article 50 in relation to Article 43 and 44 as well as Article 51, 53 and 54 of the Family Code. On the
contrary, the property regime governing voidable marriages is generally conjugal partnership and the children
conceived before its annulment are legitimate.

Contrary to the trial court's ruling, the death of petitioner's father extinguished the alleged marital bond between him
and respondent. The conclusion is erroneous and proceeds from a wrong premise that there was a marriage bond
that was dissolved between the two. It should be noted that their marriage was void hence it is deemed as if it never
existed at all and the death of either extinguished nothing.

Jurisprudence under the Civil Code states that no judicial decree is necessary in order to establish the nullity of a
marriage. 24 "A void marriage does not require a judicial decree to restore the parties to their original rights or to
make the marriage void but though no sentence of avoidance be absolutely necessary, yet as well for the sake of
good order of society as for the peace of mind of all concerned, it is expedient that the nullity of the marriage should
be ascertained and declared by the decree of a court of competent jurisdiction." 25 "Under ordinary circumstances,
the effect of a void marriage, so far as concerns the conferring of legal rights upon the parties, is as though no
marriage had ever taken place. And therefore, being good for no legal purpose, its invalidity can be maintained in
any proceeding in which the fact of marriage may be material, either direct or collateral, in any civil court between
any parties at any time, whether before or after the death of either or both the husband and the wife, and upon mere
proof of the facts rendering such marriage void, it will be disregarded or treated as non-existent by the courts." It is
not like a voidable marriage which cannot be collaterally attacked except in direct proceeding instituted during the
lifetime of the parties so that on the death of either, the marriage cannot be impeached, and is made good ab
initio. 26 But Article 40 of the Family Code expressly provides that there must be a judicial declaration of the nullity of
a previous marriage, though void, before a party can enter into a second marriage 27 and such absolute nullity can be
based only on a final judgment to that effect. 28 For the same reason, the law makes either the action or defense for
the declaration of absolute nullity of marriage imprescriptible. 29 Corollarily, if the death of either party would
extinguish the cause of action or the ground for defense, then the same cannot be considered imprescriptible.

However, other than for purposes of remarriage, no judicial action is necessary to declare a marriage an absolute
nullity. For other purposes, such as but not limited to determination of heirship, legitimacy or illegitimacy of a child,
1wphi1

settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the
validity of marriage even in a suit not directly instituted to question the same so long as it is essential to the
determination of the case. This is without prejudice to any issue that may arise in the case. When such need arises,
a final judgment of declaration of nullity is necessary even if the purpose is other than to remarry. The clause "on the
basis of a final judgment declaring such previous marriage void" in Article 40 of the Family Code connotes that such
final judgment need not be obtained only for purpose of remarriage.

WHEREFORE, the petition is GRANTED. The assailed Order of the Regional Trial Court, Toledo City, Cebu, Branch
59, dismissing Civil Case No. T-639, is REVERSED and SET ASIDE. The said case is ordered REINSTATED. 1wphi1.nt

SO ORDERED.
A.M. No. MTJ-00-1329 March 8, 2001
(Formerly A.M. No. OCA IPI No. 99-706-MTJ)

HERMINIA BORJA-MANZANO, petitioner,


vs.
JUDGE ROQUE R. SANCHEZ, MTC, Infanta, Pangasinan, respondent.

RESOLUTION

DAVIDE, JR., C.J.:

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

Complainant avers that she was the lawful wife of the late David Manzano, having been married to him on 21 May
1966 in San Gabriel Archangel Parish, Araneta Avenue, Caloocan City.1 Four children were born out of that
marriage.2 On 22 March 1993, however, her husband contracted another marriage with one Luzviminda Payao
before respondent Judge.3 When respondent Judge solemnized said marriage, he knew or ought to know that the
same was void and bigamous, as the marriage contract clearly stated that both contracting parties were
"separated."

Respondent Judge, on the other hand, claims in his Comment that when he officiated the marriage between
Manzano and Payao he did not know that Manzano was legally married. What he knew was that the two had been
living together as husband and wife for seven years already without the benefit of marriage, as manifested in their
joint affidavit.4 According to him, had he known that the late Manzano was married, he would have advised the latter
not to marry again; otherwise, he (Manzano) could be charged with bigamy. He then prayed that the complaint be
dismissed for lack of merit and for being designed merely to harass him.

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

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

For his part, respondent Judge filed a Manifestation reiterating his plea for the dismissal of the complaint and setting
aside his earlier Comment. He therein invites the attention of the Court to two separate affidavits5 of the late
Manzano and of Payao, which were allegedly unearthed by a member of his staff upon his instruction. In those
affidavits, both David Manzano and Luzviminda Payao expressly stated that they were married to Herminia Borja
and Domingo Relos, respectively; and that since their respective marriages had been marked by constant quarrels,
they had both left their families and had never cohabited or communicated with their spouses anymore. Respondent
Judge alleges that on the basis of those affidavits, he agreed to solemnize the marriage in question in accordance
with Article 34 of the Family Code.

We find merit in the complaint.

Article 34 of the Family Code provides:

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

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

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

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

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

5. The solemnizing officer must execute a sworn statement that he had ascertained the qualifications of the
parties and that he had found no legal impediment to their marriage.6

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

Respondent Judge knew or ought to know that a subsisting previous marriage is a diriment impediment, which
would make the subsequent marriage null and void.7 In fact, in his Comment, he stated that had he known that the
late Manzano was married he would have discouraged him from contracting another marriage. And respondent
Judge cannot deny knowledge of Manzanos and Payaos subsisting previous marriage, as the same was clearly
stated in their separate affidavits which were subscribed and sworn to before him.

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

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

Clearly, respondent Judge demonstrated gross ignorance of the law when he solemnized a void and bigamous
marriage. The maxim "ignorance of the law excuses no one" has special application to judges,8 who, under Rule
1.01 of the Code of Judicial Conduct, should be the embodiment of competence, integrity, and independence. It is
highly imperative that judges be conversant with the law and basic legal principles.9 And when the law transgressed
is simple and elementary, the failure to know it constitutes gross ignorance of the law.10

ACCORDINGLY, the recommendation of the Court Administrator is hereby ADOPTED, with the MODIFICATION
that the amount of fine to be imposed upon respondent Judge Roque Sanchez is increased to P20,000.

SO ORDERED.
G.R. No. 154380 October 5, 2005

REPUBLIC OF THE PHILIPPINES, Petitioner,


vs.
CIPRIANO ORBECIDO III, Respondent.

DECISION

QUISUMBING, J.:

Given a valid marriage between two Filipino citizens, where one party is later naturalized as a foreign citizen and
obtains a valid divorce decree capacitating him or her to remarry, can the Filipino spouse likewise remarry under
Philippine law?

Before us is a case of first impression that behooves the Court to make a definite ruling on this apparently novel
question, presented as a pure question of law.

In this petition for review, the Solicitor General assails the Decision1 dated May 15, 2002, of the Regional Trial
Court of Molave, Zamboanga del Sur, Branch 23 and its Resolution2 dated July 4, 2002 denying the motion for
reconsideration. The court a quo had declared that herein respondent Cipriano Orbecido III is capacitated to
remarry. 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 the
divorce decree obtained against him by his American wife, the petitioner is given the capacity to remarry under the
Philippine Law.

IT IS SO ORDERED.3

The factual antecedents, as narrated by the trial court, are as follows.

On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at 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.
Orbecido and Lady Kimberly V. Orbecido.

In 1986, Ciprianos wife left for the United States bringing along their son Kristoffer. A few years later, Cipriano
discovered that his wife had been naturalized as an American citizen.

Sometime in 2000, Cipriano learned from his son that his wife had obtained a divorce decree and then married a
certain Innocent Stanley. She, Stanley and her child by him currently live at 5566 A. Walnut Grove Avenue, San
Gabriel, California.

Cipriano thereafter filed with the trial court a petition for authority to remarry invoking Paragraph 2 of Article 26 of the
Family Code. No opposition was filed. Finding merit in the petition, the court granted the same. The Republic, herein
petitioner, through the Office of the Solicitor General (OSG), sought reconsideration but it was denied.

In this petition, the OSG raises a pure question of law:

WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE 26 OF THE FAMILY CODE4

The OSG contends that Paragraph 2 of Article 26 of the Family Code is not applicable to the instant case because it
only applies to a valid mixed marriage; that is, a marriage celebrated between a Filipino citizen and an alien. The
proper remedy, according to the OSG, is to file a petition for annulment or for legal separation.5 Furthermore, the
OSG argues there is no law that governs respondents situation. The OSG posits that this is a matter of legislation
and not of judicial determination.6
For his part, respondent admits that Article 26 is not directly applicable to his case but insists that when his
naturalized alien wife obtained a divorce decree which capacitated her to remarry, he is likewise capacitated by
operation of law pursuant to Section 12, Article II of the Constitution.7

At the outset, we note that the petition for authority to remarry filed before the trial court actually constituted a
petition for declaratory relief. In this connection, Section 1, Rule 63 of the Rules of Court provides:

RULE 63

DECLARATORY RELIEF AND SIMILAR REMEDIES

Section 1. Who may file petitionAny person interested under a deed, will, contract or other written instrument, or
whose rights are affected by a statute, executive order or regulation, ordinance, or other governmental regulation
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 declaration of his rights or duties, thereunder.

...

The requisites of a petition for declaratory relief are: (1) there must be a justiciable controversy; (2) the controversy
must be between persons whose interests are adverse; (3) that the party seeking the relief has a legal interest in the
controversy; and (4) that the issue is ripe for judicial determination.8

This case concerns the applicability of Paragraph 2 of Article 26 to a marriage between two Filipino citizens where
one later acquired alien citizenship, obtained a divorce decree, and remarried while in the U.S.A. The interests of
the parties are also adverse, as petitioner representing the State asserts its duty to protect the institution of marriage
while respondent, a private citizen, insists on a declaration of his capacity to remarry. Respondent, praying for relief,
has legal interest in the controversy. The issue raised is also ripe for judicial determination inasmuch as when
respondent remarries, litigation ensues and puts into question the validity of his second marriage.

Coming now to the substantive issue, does Paragraph 2 of Article 26 of the 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?

Brief Historical Background

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

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

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

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

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

On its face, the foregoing provision does not appear to govern the situation presented by the case at hand. It seems
to apply only to cases where at the time of the celebration of the marriage, the parties are a Filipino citizen and a
foreigner. The instant case is one where at the time the marriage was solemnized, the parties were two Filipino
citizens, but later on, the wife was naturalized as an American citizen and subsequently obtained a divorce granting
her capacity to remarry, and indeed she remarried an American citizen while residing in the U.S.A.

Noteworthy, in the Report of the Public Hearings9 on the Family Code, the Catholic Bishops Conference of the
Philippines (CBCP) registered the following objections to Paragraph 2 of Article 26:

1. The rule is discriminatory. It discriminates against those whose spouses are Filipinos who divorce them abroad.
These spouses who are divorced will not be able to re-marry, while the spouses of foreigners who validly divorce
them abroad can.

2. This is the beginning of the recognition of the validity of divorce even for Filipino citizens. For those whose foreign
spouses validly divorce them 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 widespread consultation. (Emphasis supplied.)

Legislative Intent

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

Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v. Romillo, Jr.10 The Van
Dorn case involved a marriage between a Filipino citizen and a foreigner. The Court held therein that a divorce
decree validly obtained by the alien spouse is valid in the Philippines, and consequently, the Filipino spouse is
capacitated to remarry under Philippine law.

Does the same principle apply to a case where at the time of the celebration of the marriage, the parties were
Filipino citizens, but later on, one of them obtains a foreign citizenship by naturalization?

The jurisprudential answer lies latent in the 1998 case of Quita v. Court of Appeals.11 In Quita, the parties were, as
in this case, Filipino citizens when they got married. The wife became a naturalized American citizen in 1954 and
obtained a divorce in the same year. The Court therein hinted, by way of obiter dictum, that a Filipino divorced by his
naturalized foreign spouse is no longer married under Philippine law and can thus remarry.

Thus, taking into consideration the legislative intent and applying the rule of reason, we hold that Paragraph 2 of
Article 26 should be interpreted to include cases involving parties who, at the time of the celebration of the marriage
were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce
decree. The Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time
of the solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice. Where the
interpretation of a statute according to its exact and literal import would lead to mischievous results or contravene
the clear purpose of the legislature, it should be construed according to its spirit and reason, disregarding as far as
necessary the letter of the law. A statute may therefore be extended to cases not within the literal meaning of its
terms, so long as they come within its spirit or intent.12

If we are to give meaning to the legislative intent to avoid the absurd situation where the Filipino spouse remains
married to the alien spouse who, after obtaining a divorce is no longer married to the Filipino spouse, then the
instant case must be deemed as coming within the contemplation of Paragraph 2 of Article 26.

In view of the foregoing, we state the twin elements for the application of Paragraph 2 of Article 26 as follows:

1. There is a valid marriage that has been celebrated between a Filipino citizen and a foreigner; and

2. A valid divorce is obtained abroad by the alien spouse capacitating him or her to remarry.

The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their
citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry.
In this case, when Ciprianos wife was naturalized as an American citizen, there was still a valid marriage that has
been celebrated between her and Cipriano. As fate would have it, the naturalized alien wife subsequently obtained a
valid divorce capacitating her to remarry. Clearly, the twin requisites for the application of Paragraph 2 of Article 26
are both present in this case. Thus Cipriano, the "divorced" Filipino spouse, should be allowed to remarry.

We are also unable to sustain the OSGs theory that the proper remedy of the Filipino spouse is to file either a
petition for annulment or a petition for legal separation. Annulment would be a long and tedious process, and in this
particular case, not even feasible, considering that the marriage of the parties appears to have all the badges of
validity. On the other hand, legal separation would not be a sufficient remedy for it would not sever the marriage tie;
hence, the legally separated Filipino spouse would still remain married to the naturalized alien spouse.

However, we note that the records are bereft of competent evidence duly submitted by respondent concerning the
divorce decree and the naturalization of respondents wife. It is settled rule that one who alleges a fact has the
burden of proving it and mere allegation is not evidence.13

Accordingly, for his plea to prosper, respondent herein must prove his 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 conformity to the foreign law allowing it.14 Such foreign law
must also be proved as our courts cannot take judicial notice of foreign laws. Like any other fact, such laws must be
alleged and proved.15 Furthermore, respondent must also show that the divorce decree allows his former wife to
remarry as specifically required in Article 26. Otherwise, there would be no evidence sufficient to declare that he is
capacitated to enter into another marriage.

Nevertheless, 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 could only be made
properly upon respondents submission of the aforecited evidence in his favor.

ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED. The assailed Decision dated May 15,
2002, and Resolution dated July 4, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23, are
hereby SET ASIDE.

No pronouncement as to costs.

SO ORDERED.
G.R. No. 139789 July 19, 2001

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF POTENCIANO ILUSORIO, ERLINDA K.
ILUSORIO, petitioner,
vs.
ERLINDA K. ILUSORIO-BILDNER, SYLVIA K. ILUSORIO-YAP, JOHN DOES and JANE DOES, respondents.

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

G.R. No. 139808 July 19, 2001

POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER and SYLVIA K. ILUSORIO, petitioners,


vs.
HON. COURT OF APPEALS and ERLINDA K. ILUSORIO, respondents.

RESOLUTION

PARDO, J.:

Once again we see the sad tale of a prominent family shattered by conflicts on expectancy in fabled fortune.

On March 11, 1999, Erlinda K. Ilusorio, the matriarch who was so lovingly inseparable from her husband some
years ago, filed a petition with the Court of Appeals1 for habeas corpus to have custody of her husband in
consortium.

On April 5, 1999, the Court of Appeals promulgated its decision dismissing the petition for lack of unlawful restraint
or detention of the subject, Potenciano Ilusorio.

Thus, on October 11, 1999, Erlinda K. Ilusorio filed with the Supreme Court an appeal via certiorari pursuing her
desire to have custody of her husband Potenciano Ilusorio.2 This case was consolidated with another case3 filed by
Potenciano Ilusorio and his children, Erlinda I. Bildner and Sylvia K. Ilusorio appealing from the order giving
visitation rights to his wife, asserting that he never refused to see her.

On May 12, 2000, we dismissed the petition for habeas corpus4 for lack of merit, and granted the petition5 to nullify
the Court of Appeals' ruling6 giving visitation rights to Erlinda K. Ilusorio.7

What is now before the Court is Erlinda's motion to reconsider the decision.8

On September 20, 2000, we set the case for preliminary conference on October 11, 2000, at 10:00 a. m., without
requiring the mandatory presence of the parties.

In that conference, the Court laid down the issues to be resolved, to wit:

(a) To determine the propriety of a physical and medical examination of petitioner Potenciano Ilusorio;

(b) Whether the same is relevant; and

(c) If relevant, how the Court will conduct the same.9

The parties extensively discussed the issues. The Court, in its resolution, enjoined the parties and their lawyers to
initiate steps towards an amicable settlement of the case through mediation and other means.

On November 29, 2000, the Court noted the manifestation and compliance of the parties with the resolution of
October 11, 2000.10
On January 31, 2001, the Court denied Erlinda Ilusorio's manifestation and motion praying that Potenciano Ilusorio
be produced before the Court and be medically examined by a team of medical experts appointed by the Court.11

On March 27, 2001, we denied with finality Erlinda's motion to reconsider the Court's order of January 31 , 2001. 12

The issues raised by Erlinda K. Ilusorio in her motion for reconsideration are mere reiterations of her arguments that
have been resolved in the decision.

Nevertheless, for emphasis, we shall discuss the issues thus:

First. Erlinda K. Ilusorio claimed that she was not compelling Potenciano to live with her in consortium and that
Potenciano's mental state was not an issue. However, the very root cause of the entire petition is her desire to have
her husband's custody.13 Clearly, Erlinda cannot now deny that she wanted Potenciano Ilusorio to live with her.

Second. One reason why Erlinda K. Ilusorio sought custody of her husband was that respondents Lin and Sylvia
were illegally restraining Potenciano Ilusorio to fraudulently deprive her of property rights out of pure greed.14 She
claimed that her two children were using their sick and frail father to sign away Potenciano and Erlinda's property to
companies controlled by Lin and Sylvia. She also argued that since Potenciano retired as director and officer of
Baguio Country Club and Philippine Oversees Telecommunications, she would logically assume his position and
control. Yet, Lin and Sylvia were the ones controlling the corporations.15

The fact of illegal restraint has not been proved during the hearing at the Court of Appeals on March 23,
1999.16Potenciano himself declared that he was not prevented by his children from seeing anybody and that he had
no objection to seeing his wife and other children whom he loved.

Erlinda highlighted that her husband suffered from various ailments. Thus, Potenciano Ilusorio did not have the
mental capacity to decide for himself. Hence, Erlinda argued that Potenciano be brought before the Supreme Court
so that we could determine his mental state.

We were not convinced that Potenciano Ilusorio was mentally incapacitated to choose whether to see his wife or
not. Again, this is a question of fact that has been decided in the Court of Appeals.

As to whether the children were in fact taking control of the corporation, these are matters that may be threshed out
in a separate proceeding, irrelevant in habeas corpus.

Third. Petitioner failed to sufficiently convince the Court why we should not rely on the facts found by the Court of
Appeals. Erlinda claimed that the facts mentioned in the decision were erroneous and incomplete. We see no
reason why the High Court of the land need go to such length. The hornbook doctrine states that findings of fact of
the lower courts are conclusive on the Supreme Court.17 We emphasize, it is not for the Court to weigh evidence all
over again.18 Although there are exceptions to the rule,19 Erlinda failed to show that this is an exceptional instance.

Fourth. Erlinda states that Article XII of the 1987 Constitution and Articles 68 and 69 of the Family Code support her
position that as spouses, they (Potenciano and Erlinda) are duty bound to live together and care for each other. We
agree.

The law provides that the husband and the wife are obliged to live together, observe mutual love, respect and
fidelity.20 The sanction therefor is the "spontaneous, mutual affection between husband and wife and not any legal
mandate or court order" to enforce consortium.21

Obviously, there was absence of empathy between spouses Erlinda and Potenciano, having separated from bed
and board since 1972. We defined empathy as a shared feeling between husband and wife experienced not only by
having spontaneous sexual intimacy but a deep sense of spiritual communion. Marital union is a two-way process.

Marriage is definitely for two loving adults who view the relationship with "amor gignit amorem" respect, sacrifice and
a continuing commitment to togetherness, conscious of its value as a sublime social institution.22
On June 28, 2001, Potenciano Ilusorio gave his soul to the Almighty, his Creator and Supreme Judge. Let his soul
rest in peace and his survivors continue the much prolonged fracas ex aequo et bono.

IN VIEW WHEREOF, we DENY Erlinda's motion for reconsideration. At any rate, the case has been rendered moot
by the death of subject.

SO ORDERED.
G.R. No. L-17014 August 11, 1921

MARIANO B. ARROYO, plaintiff-appellant,


vs.
DOLORES C. VASQUEZ DE ARROYO, defendant-appellee.

Fisher & DeWitt for appellant.


Powell & Hill for appellee.

STREET, J.:

Mariano B. Arroyo and Dolores C. Vasquez de Arroyo were united in the bonds of wedlock by marriage in the year
1910, and since that date, with a few short intervals of separation, they have lived together as man and wife in the
city of Iloilo until July 4, 1920, when the wife went away from their common home with the intention of living
thenceforth separate from her husband. After efforts had been made by the husband without avail to induce her to
resume marital relations, this action was initiated by him to compel her to return to the matrimonial home and live
with him as a dutiful wife. The defendant answered, admitting the fact of marriage, and that she had left her
husband's home without his consent; but she averred by way of defense and cross-complaint that she had been
compelled to leave by cruel treatment on the part of her husband. Accordingly she in turn prayed for affirmative
relief, to consist of (1) a decree of separation; (2) a liquidation of the conjugal partnership; (3) and an allowance for
counsel fees and permanent separate maintenance. Upon hearing the cause the lower court gave judgment in favor
of the defendant, authorizing her to live apart from her husband, granting her alimony at the rate of P400 per month,
and directing that the plaintiff should pay to the defendant's attorney the sum of P1,000 for his services to defendant
in the trial of the case. The plaintiff thereupon removed the case with the usual formalities by appeal to this court.

The trial judge, upon consideration of the evidence before him, reached the conclusion that the husband was more
to blame than his wife and that his continued ill-treatment of her furnished sufficient justification for her
abandonment of the conjugal home and the permanent breaking off of marital relations with him. We have carefully
examined and weighed every line of the proof, and are of the opinion that the conclusion stated is wholly untenable.
The evidence shows that the wife is afflicted with a disposition of jealousy towards her husband in an aggravated
degree; and to his cause are chiefly traceable without a doubt the many miseries that have attended their married
life. In view of the decision which we are to pronounce nothing will be said in this opinion which will make the
resumption of married relations more difficult to them or serve as a reminder to either of the mistakes of the past;
and we prefer to record the fact that so far as the proof in this record shows neither of the spouses has at any time
been guilty of conjugal infidelity, or has given just cause to the other to suspect illicit relations with any person. The
tales of cruelty on the part of the husband towards the wife, which are the basis of the cross-action, are in our
opinion no more than highly colored versions of personal wrangles in which the spouses have allowed themselves
from time to time to become involved and would have little significance apart from the morbid condition exhibited by
the wife. The judgment must therefore be recorded that the abandonment by her of the marital home was without
sufficient justification in fact.

In examining the legal questions involved, it will be found convenient to dispose first of the defendant's cross-
complaint. To begin with, the obligation which the law imposes on the husband to maintain the wife is a duty
universally recognized in civil society and is clearly expressed in articles 142 and 143 of the Civil code. The
enforcement of this obligation by the wife against the husband is not conditioned upon the procurance of a divorce
by her, nor even upon the existence of a cause for divorce. Accordingly it had been determined that where the wife
is forced to leave the matrimonial abode and to live apart from her husband, she can, in this jurisdiction, compel him
to make provision for her separate maintenance (Goitia vs. Campos Rueda, 35 Phil., 252); and he may be required
to pay the expenses, including attorney's fees, necessarily incurred in enforcing such obligation,
(Mercado vs.Ostrand and Ruiz, 37 Phil., 179.) Nevertheless, the interests of both parties as well as of society at
large require that the courts should move with caution in enforcing the duty to provide for the separate maintenance
of the wife, for this step involves a recognition of the de facto separation of the spouses a state which is abnormal
and fraught with grave danger to all concerned. From this consideration it follows that provision should not be made
for separate maintenance in favor of the wife unless it appears that the continued cohabitation of the pair has
become impossible and separation necessary from the fault of the husband.

In Davidson vs Davidson, the Supreme Court of Michigan, speaking through the eminent jurist, Judge Thomas M.
Cooley, held that an action for the support of the wife separate from the husband will only be sustained when the
reasons for it are imperative (47 Mich., 151). That imperative necessity is the only ground on which such a
proceeding can be maintained also appears from the decision in Schindel vs. Schindel (12 Md., 294). In the State of
South Carolina, where judicial divorces have never been procurable on any ground, the Supreme court fully
recognizes the right of the wife to have provision for separate maintenance, where it is impossible for her to continue
safely to cohabit with her husband; but the same court has more than once rejected the petition of the wife for
separate maintenance where it appeared that the husband's alleged cruelty or ill-treatment was provoked by the
wife's own improper conduct. (Rhame vs. Rhame, 1 McCord's Chan. [S. Car.], 197; 16 Am. Dec., 597;
Boyd vs.Boyd, Har. Eq. [S. Car.], 144.)

Upon one occasion Sir William Scott, pronouncing the judgment of the English Ecclesiastical Court in a case where
cruelty on the part of the husband was relied upon to secure a divorce for the wife, made use of the following
eloquent words, which are perhaps even more applicable in a proceeding for separate maintenance in a
jurisdiction where, as here, a divorce cannot be obtained except on the single ground of adultery and this, too, after
the conviction of the guilty spouse in a criminal prosecution for that crime. Said he:

That the duty of cohabitation is released by the cruelty of one of the parties is admitted, but the question
occurs, What is cruelty? . . .

What merely wounds the mental feelings is in few cases to be admitted where they are not accompanied
with bodily injury, either actual or menaced. Mere austerity of temper, petulance of manners, rudeness of
language, a want of civil attention and accommodation, even occasional sallies of passion, if they do not
threaten bodily harm, do not amount to legal cruelty: they are high moral offenses in the marriage-state
undoubtedly, not innocent surely in any state of life, but still they are not that cruelty against which the law
can relieve. Under such misconduct of either of the parties, for it may exist on the one side as well as on the
other, the suffering party must bear in some degree the consequences of an injudicious connection; must
subdue by decent resistance or by prudent conciliation; and if this cannot be done, both must suffer in
silence. . . .

The humanity of the court has been loudly and repeatedly invoked. Humanity is the second virtue of courts,
but undoubtedly the first is justice. If it were a question of humanity simply, and of humanity which confined
its views merely to the happiness of the present parties, it would be a question easily decided upon first
impressions. Every body must feel a wish to sever those who wish to live separate from each other, who
cannot live together with any degree of harmony, and consequently with any degree of happiness; but my
situation does not allow me to indulge the feelings, much less the first feelings of an individual. The law has
said that married persons shall not be legally separated upon the mere disinclination of one or both to
cohabit together. . . .

To vindicate the policy of the law is no necessary part of the office of a judge; but if it were, it would not be
difficult to show that the law in this respect has acted with its usual wisdom and humanity with that true
wisdom, and that real humanity, that regards the general interests of mankind. For though in particular cases
the repugnance of the law to dissolve the obligations of matrimonial cohabitation may operate with great
severity upon individual, yet it must be carefully remembered that the general happiness of the married life is
secured by its indissolubility. When people understand that they must live together, except for a very few
reasons known to the law, they learn to soften by mutual accommodation that yoke which they know cannot
shake off; they become good husbands and good wives form the necessity of remaining husbands and
wives; for necessity is a powerful master in teaching the duties which it imposes. . . . In this case, as in many
others, the happiness of some individuals must be sacrificed to the greater and more general good.
(Evans vs.Evans, 1 Hag. Con., 35; 161 Eng. Reprint, 466, 467.)

In the light of the considerations stated, it is obvious that the cross-complaint is not well founded and none of the
relief sought therein can be granted.

The same considerations that require the dismissal of the cross-complaint conclusively prove that the plaintiff,
Mariano B. Arroyo, has done nothing to forfeit his right to the marital society of his wife and that she is under an
obligation, both moral and legal, to return to the common home and cohabit with him. The only question which here
arises is as to the character and extent of the relief which may be properly conceded to him by judicial decree.
The action is one by which the plaintiff seeks the restitution of conjugal rights; and it is supposed in the petitory part
of the complaint that he is entitled to a permanent mandatory injunction requiring the defendant to return to the
conjugal home and live with him as a wife according to the precepts of law and morality. Of course if such a decree
were entered, in unqualified terms, the defendant would be liable to attachment for contempt, in case she should
refuse to obey it; and, so far as the present writer is aware, the question is raised for the first time in this jurisdiction
whether it is competent for the court to make such an order.

Upon examination of the authorities we are convinced that it is not within the province of the courts of this country to
attempt to compel one of the spouses to cohabit with, and render conjugal rights to, the other. Of course where the
property rights of one of the pair are invaled, an action for restitution of such rights can be maintained. But we are
disinclined to sanction the doctrine that an order, enforcible by process of contempt, may be entered to compel the
restitution of the purely personal rights of consortium. At best such an order can be effective for no other purpose
than to compel the spouses to live under the same roof; and the experience of these countries where the court of
justice have assumed to compel the cohabitation of married people shows that the policy of the practice is extremely
questionable. Thus in England, formerly the Ecclesiastical Court entertained suits for the restitution of conjugal
rights at the instance of either husband or wife; and if the facts were found to warrant it that court would make a
mandatory decree, enforcible by process of contempt in case of disobedience, requiring the delinquent party to live
with the other and render conjugal rights. Yet this practice was sometimes criticized even by the judges who felt
bound to enforce such orders, and in Weldon vs. Weldon (9 P. D., 52), decided in 1883, Sir James Hannen,
President in the Probate, Divorce and Admiralty Division of the High Court of Justice, expressed his regret that the
English law on the subject was not the same as that which prevailed in Scotland, where a decree of adherence,
equivalent to the decree for the restitution of conjugal rights in England, could be obtained by the injured spouse, but
could not be enforced by imprisonment. Accordingly, in obedience to the growing sentiment against the practice, the
Matrimonial Causes Act (1884) abolished the remedy of imprisonment; though a decree for the restitution of
conjugal rights can still be procured, and in case of disobedience may serve in appropriate cases as the basis of an
order for the periodical payment of a stipend in the character of alimony.

In the voluminous jurisprudence of the United States, only one court, so far as we can discover, has ever attempted
to make a peremptory order requiring one of the spouses to live with the other; and that was in a case where a wife
was ordered to follow and live with her husband, who had changed his domicile to the City of New Orleans. The
decision referred to (Gahn vs. Darby, 36 La. Ann., 70) was based on a provision of the Civil Code of Louisiana
similar to article 56 of the Spanish Civil Code. It was decided many years ago, and the doctrine evidently has not
been fruitful even in the State of Louisiana. In other states of the American Union the idea of enforcing cohabitation
by process of contempt is rejected. (21 Cyc., 1148.)

In a decision of January 2, 1909, the supreme court of Spain appears to have affirmed an order of the Audencia
Territorial de Valladolid requiring a wife to return to the marital domicile, and in the alternative, upon her failure to do
so, to make a particular disposition of certain money and effects then in her possession and to deliver to her
husband, as administrator of the ganancial property, all income, rents, and interest which might accrue to her from
the property which she had brought to the marriage. (113 Jur. Civ., pp. 1, 11.) but it does not appear that this order
for the return of the wife to the marital domicile was sanctioned by any other penalty than the consequences that
would be visited upon her in respect to the use and control of her property; and it does not appear that her
disobedience to that order would necessarily have been followed by imprisonment for contempt.

We are therefore unable to hold that Mariano B. Arroyo in this case is entitled to the unconditional and absolute
order for the return of the wife to the marital domicile, which is sought in the petitory part of the complaint; though he
is, without doubt, entitled to a judicial declaration that his wife has presented herself without sufficient cause and that
it is her duty to return.

Therefore, reversing the judgment appealed from, in respect both to the original complaint and the cross-bill, it is
declared that Dolores Vasquez de Arroyo has absented herself from the marital home without sufficient cause; and
she is admonished that it is her duty to return. The plaintiff is absolved from the cross-complaint, without special
pronouncement as to costs of either instance. So ordered.
G.R. No. 11263 November 2, 1916

ELOISA GOITIA DE LA CAMARA, plaintiff-appellant,


vs.
JOSE CAMPOS RUEDA, defendant-appellee.

Eduardo Gutierrez Repide and Felix Socias for appellant.


Sanz, Opisso and Luzuriaga for appellee.

TRENT, J.:

This is an action by the wife against her husband for support outside of the conjugal domicile. From a judgment
sustaining the defendant's demurrer upon the ground that the facts alleged in the complaint do not state a cause of
action, followed by an order dismissing the case after the plaintiff declined to amend, the latter appealed.

It was urged in the first instance, and the court so held, that the defendant cannot be compelled to support the
plaintiff, except in his own house, unless it be by virtue of a judicial decree granting her a divorce or separation from
the defendant.

The parties were legally married in the city of Manila on January 7, 1915, and immediately thereafter established
their residence at 115 Calle San Marcelino, where they lived together for about a month, when the plaintiff returned
to the home of her parents. The pertinent allegations of the complaint are as follows:

That the defendant, one month after he had contracted marriage with the plaintiff, demanded of her that she
perform unchaste and lascivious acts on his genital organs; that the plaintiff spurned the obscene demands
of the defendant and refused to perform any act other than legal and valid cohabitation; that the defendant,
since that date had continually on other successive dates, made similar lewd and indecorous demands on
his wife, the plaintiff, who always spurned them, which just refusals of the plaintiff exasperated the defendant
and induce him to maltreat her by word and deed and inflict injuries upon her lips, her face and different
parts of her body; and that, as the plaintiff was unable by any means to induce the defendant to desist from
his repugnant desires and cease from maltreating her, she was obliged to leave the conjugal abode and
take refuge in the home of her parents.

Marriage in this jurisdiction is a contract entered into in the manner and with the solemnities established by General
Orders No. 68, in so far as its civil effects are concerned requiring the consent of the parties. (Garcia vs. Montague,
12 Phil. Rep., 480, citing article 1261 of Civil Code.) Upon the termination of the marriage ceremony, a conjugal
partnership is formed between the parties. (Sy Joc Lieng vs. Encarnacion, 16 Phil. Rep., 137.) To this extent a
marriage partakes of the nature of an ordinary contract. But it is something more than a mere contract. It is a new
relation, the rights, duties, and obligations of which rest not upon the agreement of the parties but upon the general
law which defines and prescribes those rights, duties, and obligations .Marriage is an institution, in the maintenance
of which in its purity the public is deeply interested. It is a relation for life and the parties cannot terminate it at any
shorter period by virtue of any contract they may make .The reciprocal rights arising from this relation, so long as it
continues, are such as the law determines from time to time, and none other. When the legal existence of the
parties is merged into one by marriage, the new relation is regulated and controlled by the state or government upon
principles of public policy for the benefit of society as well as the parties. And when the object of a marriage is
defeated by rendering its continuance intolerable to one of the parties and productive of no possible good to the
community, relief in some way should be obtainable. With these principles to guide us, we will inquire into the status
of the law touching and governing the question under consideration.

Articles 42 to 107 of the Civil Code are not in force in the Philippine Islands (Benedicto vs. De la Rama, 3 Phil .Rep.,
34). Articles 44 to 78 of the Law of Civil Marriage of 1870, in force in the Peninsula, were extended to the Philippine
Islands by royal decree on April 13, 1883 (Ebreo vs. Sichon, 4 Phil. Rep., 705). Articles 44, 45, and 48 of this law
read:

ART. 44. The spouses are obliged to be faithful to each other and to mutually assist each other.
ART. 45. The husband must live with and protect his wife. (The second paragraph deals with the
management of the wife's property.)

ART. 48. The wife must obey her husband, live with him, and follow him when he charges his domicile or
residence.

Notwithstanding the provisions of the foregoing paragraph, the court may for just cause relieve her from this
duty when the husband removes his residence to a foreign country.

And articles 143 and 149 of the Civil Code are as follows:

ART. 143. The following are obliged to support each other reciprocally to the whole extent specified in the
preceding article.

1. The consorts.

xxx xxx xxx

ART. (149) 49. The person obliged to give support may, at his option, satisfy it, either by paying the pension
that may be fixed or by receiving and maintaining in his own home the person having the right to the same.

Article 152 of the Civil Code gives the instances when the obligation to give support shall cease. The failure of the
wife to live with her husband is not one of them.

The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the duties and obligations of the
spouses. The spouses must be faithful to, assist, and support each other. The husband must live with and protect
his wife. The wife must obey and live with her husband and follow him when he changes his domicile or residence,
except when he removes to a foreign country. But the husband who is obliged to support his wife may, at his option,
do so by paying her a fixed pension or by receiving and maintaining her in his own home. May the husband, on
account of his conduct toward his wife, lose this option and be compelled to pay the pension? Is the rule established
by article 149 of the Civil Code absolute? The supreme court of Spain in its decision of December 5, 1903, held:.

That in accordance with the ruling of the supreme court of Spain in its decisions dated May 11, 1897,
November 25, 1899, and July 5, 1901, the option which article 149 grants the person, obliged to furnish
subsistence, between paying the pension fixed or receiving and keeping in his own house the party who is
entitled to the same, is not so absolute as to prevent cases being considered wherein, either because this
right would be opposed to the exercise of a preferential right or because of the existence of some justifiable
cause morally opposed to the removal of the party enjoying the maintenance, the right of selection must be
understood as being thereby restricted.

Whereas the only question discussed in the case which gave rise to this appeal was whether there was any
reason to prevent the exercise of the option granted by article 149 of the Civil Code to the person obliged to
furnish subsistence, to receive and maintain in his own house the one who is entitled to receive it; and
inasmuch as nothing has been alleged or discussed with regard to the parental authority of Pedro Alcantara
Calvo, which he ha not exercised, and it having been set forth that the natural father simply claims his child
for the purpose of thus better attending to her maintenance, no action having been taken by him toward
providing the support until, owing to such negligence, the mother was obliged to demand it; it is seen that
these circumstances, together with the fact of the marriage of Pedro Alcantara, and that it would be difficult
for the mother to maintain relations with her daughter, all constitute an impediment of such a nature as to
prevent the exercise of the option in the present case, without prejudice to such decision as may be deemed
proper with regard to the other questions previously cited in respect to which no opinion should be
expressed at this time.

The above was quoted with approval in United States and De Jesus vs. Alvir (9 Phil. Rep., 576), wherein the court
held that the rule laid down in article 149 of the Civil Code "is not absolute." but it is insisted that there existed a
preexisting or preferential right in each of these cases which was opposed to the removal of the one entitled to
support. It is true that in the first the person claiming the option was the natural father of the child and had married a
woman other than the child's mother, and in the second the right to support had already been established by a final
judgment in a criminal case. Notwithstanding these facts the two cases clearly established the proposition that the
option given by article 149 of the Civil Code may not be exercised in any and all cases.

Counsel for the defendant cite, in support of their contention, the decision of the supreme court of Spain, dated
November 3, 1905. In this case Don Berno Comas, as a result of certain business reverses and in order no to
prejudice his wife, conferred upon her powers to administer and dispose of her property. When she left him he gave
her all the muniments of title, mortgage credits, notes, P10,000 in accounts receivable, and the key to the safe in
which he kept a large amount of jewels, thus depriving himself of all his possessions and being reduced in
consequence to want. Subsequently he instituted this civil action against his wife, who was then living in opulence,
for support and the revocation of the powers heretofore granted in reference to the administration and disposal of
her property. In her answer the wife claimed that the plaintiff (her husband) was not legally in a situation to claim
support and that the powers voluntarily conferred and accepted by her were bilateral and could not be canceled by
the plaintiff. From a judgment in favor of the plaintiff the defendant wife appealed to the Audencia Territorial wherein,
after due trial, judgment was rendered in her favor dismissing the action upon the merits. The plaintiff appealed to
the supreme court and that high tribunal, in affirming the judgment of the Audencia Territorial, said:

Considering that article 143, No. 1, of the Civil Code, providing that the spouses are mutually obliged to
provide each other with support, cannot but be subordinate to the other provisions of said Code which
regulates the family organization and the duties of spouses not legally separated, among which duties are
those of their living together and mutually helping each other, as provided in article 56 of the aforementioned
code; and taking this for granted, the obligation of the spouse who has property to furnish support to the one
who has no property and is in need of it for subsistence, is to be understood as limited to the case where, in
accordance with law, their separation has been decreed, either temporarily or finally and this case, with
respect to the husband, cannot occur until a judgment of divorce is rendered, since, until then, if he is
culpable, he is not deprived of the management of his wife's property and of the product of the other
property belonging to the conjugal partnership; and

Considering that, should the doctrine maintained in the appeal prevail, it would allow married persons to
disregard the marriage bond and separate from each other of their own free will, thus establishing, contrary
to the legal provision contained in said article 56 of the Civil Code, a legal status entirely incompatible with
the nature and effects of marriage in disregard of the duties inherent therein and disturbing the unity of the
family, in opposition to what the law, in conformity with good morals, has established; and.

Considering that, as the spouses D. Ramon Benso and Doa Adela Galindo are not legally separated, it is
their duty to live together and afford each other help and support; and for this reason, it cannot be held that
the former has need of support from his wife so that he may live apart from her without the conjugal abode
where it is his place to be, nor of her conferring power upon him to dispose even of the fruits of her property
in order therewith to pay the matrimonial expenses and, consequently, those of his own support without
need of going to his wife; wherefore the judgment appealed from, denying the petition of D. Ramon Benso
for support, has not violated the articles of the Civil Code and the doctrine invoked in the assignments of
error 1 and 5 of the appeal.

From a careful reading of the case just cited and quoted from it appears quite clearly that the spouses separated
voluntarily in accordance with an agreement previously made. At least there are strong indications to this effect, for
the court says, "should the doctrine maintained in the appeal prevail, it would allow married persons to disregard the
marriage bond and separate from each other of their own free will." If this be the true basis upon which the supreme
court of Spain rested its decision, then the doctrine therein enunciated would not be controlling in cases where one
of the spouses was compelled to leave the conjugal abode by the other or where the husband voluntarily abandons
such abode and the wife seeks to force him to furnish support. That this is true appears from the decision of the
same high tribunal, dated October 16, 1903. In this case the wife brought an action for support against her husband
who had willfully and voluntarily abandoned the conjugal abode without any cause whatever. The supreme court,
reversing the judgment absolving the defendant upon the ground that no action for divorce, etc., had been instituted,
said:

In the case at bar, it has been proven that it was Don Teodoro Exposito who left the conjugal abode,
although he claims, without however proving his contention, that the person responsible for this situation
was his wife, as she turned him out of the house. From this state of affairs it results that it is the wife who is
party abandoned, the husband not having prosecuted any action to keep her in his company and he
therefore finds himself, as long as he consents to the situation, under the ineluctable obligation to support
his wife in fulfillment of the natural duty sanctioned in article 56 of the Code in relation with paragraph 1 of
article 143. In not so holding, the trial court, on the mistaken ground that for the fulfillment of this duty the
situation or relation of the spouses should be regulated in the manner it indicates, has made the errors of
law assigned in the first three grounds alleged, because the nature of the duty of affording mutual support is
compatible and enforcible in all situations, so long as the needy spouse does not create any illicit situation of
the court above described. lawphil.net

If we are in error as to the doctrine enunciated by the supreme court of Spain in its decision of November 3, 1905,
and if the court did hold, as contended by counsel for the defendant in the case under consideration, that neither
spouse can be compelled to support the other outside of the conjugal abode, unless it be by virtue of a final
judgment granting the injured one a divorce or separation from the other, still such doctrine or holding would not
necessarily control in this jurisdiction for the reason that the substantive law is not in every particular the same here
as it is in Spain. As we have already stated, articles 42 to 107 of the Civil Code in force in the Peninsula are not in
force in the Philippine Islands. The law governing the duties and obligations of husband and wife in this country are
articles 44 to 78 of the Law of Civil Marriage of 1870 .In Spain the complaining spouse has, under article 105 of the
Civil Code, various causes for divorce, such as adultery on the part of the wife in every case and on the part of the
husband when public scandal or disgrace of the wife results therefrom; personal violence actually inflicted or grave
insults: violence exercised by the husband toward the wife in order to force her to change her religion; the proposal
of the husband to prostitute his wife; the attempts of the husband or wife to corrupt their sons or to prostitute their
daughters; the connivance in their corruption or prostitution; and the condemnation of a spouse to perpetual chains
or hard labor, while in this jurisdiction the only ground for a divorce is adultery. (Benedicto vs. De la Rama, 3 Phil
.Rep., 34, 45.) This positive and absolute doctrine was announced by this court in the case just cited after an
exhaustive examination of the entire subject. Although the case was appealed to the Supreme Court of the United
States and the judgment rendered by this court was there reversed, the reversal did not affect in any way or weaken
the doctrine in reference to adultery being the only ground for a divorce. And since the decision was promulgated by
this court in that case in December, 1903, no change or modification of the rule has been announced. It is,
therefore, the well settled and accepted doctrine in this jurisdiction.

But it is argued that to grant support in an independent suit is equivalent to granting divorce or separation, as it
necessitates a determination of the question whether the wife has a good and sufficient cause for living separate
from her husband; and, consequently, if a court lacks power to decree a divorce, as in the instant case, power to
grant a separate maintenance must also be lacking. The weakness of this argument lies in the assumption that the
power to grant support in a separate action is dependent upon a power to grant a divorce. That the one is not
dependent upon the other is apparent from the very nature of the marital obligations of the spouses. The mere act of
marriage creates an obligation on the part of the husband to support his wife. This obligation is founded not so much
on the express or implied terms of the contract of marriage as on the natural and legal duty of the husband; an
obligation, the enforcement of which is of such vital concern to the state itself that the laws will not permit him to
terminate it by his own wrongful acts in driving his wife to seek protection in the parental home. A judgment for
separate maintenance is not due and payable either as damages or as a penalty; nor is it a debt in the strict legal
sense of the term, but rather a judgment calling for the performance of a duty made specific by the mandate of the
sovereign. This is done from necessity and with a view to preserve the public peace and the purity of the wife; as
where the husband makes so base demands upon his wife and indulges in the habit of assaulting her. The pro tanto
separation resulting from a decree for separate support is not an impeachment of that public policy by which
marriage is regarded as so sacred and inviolable in its nature; it is merely a stronger policy overruling a weaker one;
and except in so far only as such separation is tolerated as a means of preserving the public peace and morals may
be considered, it does not in any respect whatever impair the marriage contract or for any purpose place the wife in
the situation of a feme sole.

The foregoing are the grounds upon which our short opinion and order for judgment, heretofore filed in this case,
rest.

Torres, Johnson and Carson, JJ., concur.


Separate Opinions

MORELAND, J., concurring:

I based my vote in this case upon the ground that a husband cannot, by his own wrongful acts, relieve himself from
the duty to support his wife imposed by law; and where a husband, by wrongful, illegal, and unbearable conduct,
drives his wife from the domicile fixed by him, he cannot take advantage of her departure to abrogate the law
applicable to the marital relation and repudiate his duties thereunder. In law and for all purposes within its purview,
the wife still remains an inmate of the conjugal domicile; for I regard it as a principle of law universally recognized
that where a person by his wrongful and illegal acts creates a condition which under ordinary circumstances would
produce the loss of rights or status pertaining to another, the law will, whenever necessary to protect fully the rights
or status of the person affected by such acts, regard the condition by such acts created as not existing and will recur
to and act upon the original situation of the parties to determine their relative rights or the status of the person
adversely affected.

I do not believe, therefore, that the case is properly conceived by defendant, when the consideration thereof
proceeds solely on the theory that the wife is outside the domicile fixed by the husband. Under the facts alleged in
the complainant the wife is legally still within the conjugal domicile.
G.R. No. 147978 January 23, 2002

THELMA A. JADER-MANALO, petitioner,


vs.
NORMA FERNANDEZ C. CAMAISA and EDILBERTO CAMAISA, respondents.

KAPUNAN, J.:

The issue raised in this case is whether or not the husband may validly dispose of a conjugal property without the
wife's written consent.

The present controversy had its beginning when petitioner Thelma A. Jader-Manalo allegedly came across an
advertisement placed by respondents, the Spouses Norma Fernandez C. Camaisa and Edilberto Camaisa, in the
Classified Ads Section of the newspaper BULLETIN TODAY in its April, 1992 issue, for the sale of their ten-door
apartment in Makati, as well as that in Taytay, Rizal.

As narrated by petitioner in her complaint filed with the Regional Trial Court of Makati, Metro Manila, she was
interested in buying the two properties so she negotiated for the purchase through a real estate broker, Mr. Proceso
Ereno, authorized by respondent spouses.1 Petitioner made a visual inspection of the said lots with the real estate
broker and was shown the tax declarations, real property tax payment receipts, location plans, and vicinity maps
relating to the properties.2 Thereafter, petitioner met with the vendors who turned out to be respondent spouses. She
made a definite offer to buy the properties to respondent Edilberto Camaisa with the knowledge and conformity of
his wife, respondent Norma Camaisa in the presence of the real estate broker.3 After some bargaining, petitioner and
Edilberto agreed upon the purchase price of 1,500,000.00 for the Taytay property and 2,100,000.00 for the
Makati property4 to be paid on installment basis with downpayments of 100,000.00 and 200,000.00, respectively,
on April 15, 1992. The balance thereof was to be paid as follows5 :

Taytay Property Makati Property


6th month P200,000.00 P300,000.00
12th month 700,000.00 1,600,000.00
18th month 500,000.00

This agreement was handwritten by petitioner and signed by Edilberto.6 When petitioner pointed out the conjugal
nature of the properties, Edilberto assured her of his wife's conformity and consent to the sale.7 The formal
typewritten Contracts to Sell were thereafter prepared by petitioner. The following day, petitioner, the real estate
broker and Edilberto met in the latter's office for the formal signing of the typewritten Contracts to Sell.8 After
Edilberto signed the contracts, petitioner delivered to him two checks, namely, UCPB Check No. 62807 dated April
15, 1992 for 200,000.00 and UCPB Check No. 62808 also dated April 15, 1992 for 100,000.00 in the presence of
the real estate broker and an employee in Edilberto's office.9 The contracts were given to Edilberto for the formal
affixing of his wife's signature.

The following day, petitioner received a call from respondent Norma, requesting a meeting to clarify some provisions
of the contracts.10 To accommodate her queries, petitioner, accompanied by her lawyer, met with Edilberto and
Norma and the real estate broker at Cafe Rizal in Makati.11 During the meeting, handwritten notations were made on
the contracts to sell, so they arranged to incorporate the notations and to meet again for the formal signing of the
contracts.12

When petitioner met again with respondent spouses and the real estate broker at Edilberto's office for the formal
affixing of Norma's signature, she was surprised when respondent spouses informed her that they were backing out
of the agreement because they needed "spot cash" for the full amount of the consideration.13 Petitioner reminded
respondent spouses that the contracts to sell had already been duly perfected and Norma's refusal to sign the same
would unduly prejudice petitioner. Still, Norma refused to sign the contracts prompting petitioner to file a complaint
for specific performance and damages against respondent spouses before the Regional Trial Court of Makati,
Branch 136 on April 29, 1992, to compel respondent Norma Camaisa to sign the contracts to sell.
A Motion to Dismiss14 was filed by respondents which was denied by the trial court in its Resolution of July 21,
1992.15

Respondents then filed their Answer with Compulsory Counter-claim, alleging that it was an agreement between
herein petitioner and respondent Edilberto Camaisa that the sale of the subject properties was still subject to the
approval and conformity of his wife Norma Camaisa.16 Thereafter, when Norma refused to give her consent to the
sale, her refusal was duly communicated by Edilberto to petitioner.17 The checks issued by petitioner were returned
to her by Edilberto and she accepted the same without any objection.18 Respondent further claimed that the
acceptance of the checks returned to petitioner signified her assent to the cancellation of the sale of the subject
properties.19 Respondent Norma denied that she ever participated in the negotiations for the sale of the subject
properties and that she gave her consent and conformity to the same.20

On October 20, 1992, respondent Norma F. Camaisa filed a Motion for Summary Judgment21 asserting that there is
no genuine issue as to any material fact on the basis of the pleadings and admission of the parties considering that
the wife's written consent was not obtained in the contract to sell, the subject conjugal properties belonging to
respondents; hence, the contract was null and void.

On April 14, 1993, the trial court rendered a summary judgment dismissing the complaint on the ground that under
Art. 124 of the Family Code, the court cannot intervene to authorize the transaction in the absence of the consent of
the wife since said wife who refused to give consent had not been shown to be incapacitated. The dispositive
portion of the trial court's decision reads:

WHEREFORE, considering these premises, judgment is hereby rendered:

1. Dismissing the complaint and ordering the cancellation of the Notice of Lis Pendens by reason of its filing
on TCT Nos. (464860) S-8724 and (464861) S-8725 of the Registry of Deeds at Makati and on TCT Nos.
295976 and 295971 of the Registry of Rizal.

2. Ordering plaintiff Thelma A. Jader to pay defendant spouses Norma and Edilberto Camaisa, FIFTY
THOUSAND (50,000.00) as Moral Damages and FIFTY THOUSAND (50,000.00) as Attorney's Fees.

Costs against plaintiff.22

Petitioner, thus, elevated the case to the Court of Appeals. On November 29, 2000, the Court of Appeals affirmed
the dismissal by the trial court but deleted the award of 50,000.00 as damages and 50,000.00 as attorney's fees.

The Court of Appeals explained that the properties subject of the contracts were conjugal properties and as such,
the consent of both spouses is necessary to give effect to the sale. Since private respondent Norma Camaisa
refused to sign the contracts, the sale was never perfected. In fact, the downpayment was returned by respondent
spouses and was accepted by petitioner. The Court of Appeals also stressed that the authority of the court to allow
sale or encumbrance of a conjugal property without the consent of the other spouse is applicable only in cases
where the said spouse is incapacitated or otherwise unable to participate in the administration of the conjugal
property.

Hence, the present recourse assigning the following errors:

THE HONORABLE COURT OF APPEALS GRIEVIOUSLY ERRED IN RENDERING SUMMARY


JUDGMENT IN DISMISSING THE COMPLAINT ENTIRELY AND ORDERING THE CANCELLATION OF
NOTICE OF LIS PENDENS ON THE TITLES OF THE SUBJECT REAL PROPERTIES;

THE HONORABLE COURT OF APPEALS GRIEVIOUSLY ERRED IN FAILING TO CONSIDER THAT THE
SALE OF REAL PROPERTIES BY RESPONDENTS TO PETITIONER HAVE ALREADY BEEN
PERFECTED, FOR AFTER THE LATTER PAID P300,000.00 DOWNPAYMENT, RESPONDENT MRS.
CAMAISA NEVER OBJECTED TO STIPULATIONS WITH RESPECT TO PRICE, OBJECT AND TERMS
OF PAYMENT IN THE CONTRACT TO SELL ALREADY SIGNED BY THE PETITIONER, RESPONDENT
MR. CAMAISA AND WITNESSES MARKED AS ANNEX "G" IN THE COMPLAINT EXCEPT, FOR MINOR
PROVISIONS ALREADY IMPLIED BY LAW, LIKE EJECTMENT OF TENANTS, SUBDIVISION OF TITLE
AND RESCISSION IN CASE OF NONPAYMENT, WHICH PETITIONER READILY AGREED AND
ACCEDED TO THEIR INCLUSION;

THE HONORABLE COURT OF APPEALS GRIEVIOUSLY ERRED WHEN IT FAILED TO CONSIDER


THAT CONTRACT OF SALE IS CONSENSUAL AND IT IS PERFECTED BY THE MERE CONSENT OF
THE PARTIES AND THE APPLICABLE PROVISIONS ARE ARTICLES 1157, 1356, 1357, 1358, 1403,
1405 AND 1475 OF THE CIVIL CODE OF THE PHILIPPINES AND GOVERNED BY THE STATUTE OF
FRAUD.23

The Court does not find error in the decisions of both the trial court and the Court of Appeals.

Petitioner alleges that the trial court erred when it entered a summary judgment in favor of respondent spouses
there being a genuine issue of fact. Petitioner maintains that the issue of whether the contracts to sell between
petitioner and respondent spouses was perfected is a question of fact necessitating a trial on the merits.

The Court does not agree. A summary judgment is one granted by the court upon motion by a party for an
expeditious settlement of a case, there appearing from the pleadings, depositions, admissions and affidavits that
there are no important questions or issues of fact involved, and that therefore the moving party is entitled to
judgment as a matter of law.24 A perusal of the pleadings submitted by both parties show that there is no genuine
controversy as to the facts involved therein.

Both parties admit that there were negotiations for the sale of four parcels of land between petitioner and
respondent spouses; that petitioner and respondent Edilberto Camaisa came to an agreement as to the price and
the terms of payment, and a downpayment was paid by petitioner to the latter; and that respondent Norma refused
to sign the contracts to sell. The issue thus posed for resolution in the trial court was whether or not the contracts to
sell between petitioner and respondent spouses were already perfected such that the latter could no longer back out
of the agreement.

The law requires that the disposition of a conjugal property by the husband as administrator in appropriate cases
requires the written consent of the wife, otherwise, the disposition is void. Thus, Article 124 of the Family Code
provides:

Art. 124. The administration and enjoyment of the conjugal partnership property shall belong to both
spouses jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse to the
court by the wife for a proper remedy, which must be availed of within five years from the date of the
contract implementing such decision.

In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the
conjugal properties, the other spouse may assume sole powers of administration. These powers do not
include the powers of disposition or encumbrance which must have the authority of the court or the written
consent of the other spouse. In the absence of such authority or consent the disposition or encumbrance
shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting
spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other
spouse or authorization by the court before the offer is withdrawn by either or both offerors. (Underscoring
ours.)

The properties subject of the contracts in this case were conjugal; hence, for the contracts to sell to be effective, the
consent of both husband and wife must concur.

Respondent Norma Camaisa admittedly did not give her written consent to the sale. Even granting that respondent
Norma actively participated in negotiating for the sale of the subject properties, which she denied, her written
consent to the sale is required by law for its validity. Significantly, petitioner herself admits that Norma refused to
sign the contracts to sell. Respondent Norma may have been aware of the negotiations for the sale of their conjugal
properties. However, being merely aware of a transaction is not consent.25

Finally, petitioner argues that since respondent Norma unjustly refuses to affix her signatures to the contracts to sell,
court authorization under Article 124 of the Family Code is warranted.
The argument is bereft of merit. Petitioner is correct insofar as she alleges that if the written consent of the other
spouse cannot be obtained or is being withheld, the matter may be brought to court which will give such authority if
the same is warranted by the circumstances. However, it should be stressed that court authorization under Art. 124
is only resorted to in cases where the spouse who does not give consent is incapacitated.26

In this case, petitioner failed to allege and prove that respondent Norma was incapacitated to give her consent to the
contracts. In the absence of such showing of the wife's incapacity, court authorization cannot be sought.

Under the foregoing facts, the motion for summary judgment was proper considering that there was no genuine
issue as to any material fact. The only issue to be resolved by the trial court was whether the contract to sell
involving conjugal properties was valid without the written consent of the wife.

WHEREFORE, the petition is hereby DENIED and the decision of the Court of Appeals dated November 29, 2000 in
CA-G.R. CV No. 43421 AFFIRMED.

SO ORDERED.
G.R. No. 118305 February 12, 1998

AYALA INVESTMENT & DEVELOPMENT CORP. and ABELARDO MAGSAJO, petitioners,


vs. COURT OF APPEALS and SPOUSES ALFREDO & ENCARNACION CHING, respondents.

MARTINEZ, J.:

Under Article 161 of the Civil Code, what debts and obligations contracted by the husband alone are considered "for
the benefit of the conjugal partnership" which are chargeable against the conjugal partnership? Is a surety
agreement or an accommodation contract entered into by the husband in favor of his employer within the
contemplation of the said provision?

These are the issues which we will resolve in this petition for review.

The petitioner assails the decision dated April 14, 1994 of the respondent Court of Appeals in "Spouses Alfredo and
Encarnacion Ching vs. Ayala Investment and Development Corporation, et. al.," docketed as CA-G.R. CV No.
29632,1 upholding the decision of the Regional Trial Court of Pasig, Branch 168, which ruled that the conjugal
partnership of gains of respondents-spouses Alfredo and Encarnacion Ching is not liable for the payment of the
debts secured by respondent-husband Alfredo Ching.

A chronology of the essential antecedent facts is necessary for a clear understanding of the case at bar.

Philippine Blooming Mills (hereinafter referred to as PBM) obtained a P50,300,000.00 loan from petitioner Ayala
Investment and Development Corporation (hereinafter referred to as AIDC). As added security for the credit line
extended to PBM, respondent Alfredo Ching, Executive Vice President of PBM, executed security agreements on
December 10, 1980 and on March 20, 1981 making himself jointly and severally answerable with PBM's
indebtedness to AIDC.

PBM failed to pay the loan. Thus, on July 30, 1981, AIDC filed a case for sum of money against PBM and
respondent-husband Alfredo Ching with the then Court of First Instance of Rizal (Pasig), Branch VIII, entitled "Ayala
Investment and Development Corporation vs. Philippine Blooming Mills and Alfredo Ching," docketed as Civil Case
No. 42228.

After trial, the court rendered judgment ordering PBM and respondent-husband Alfredo Ching to jointly and severally
pay AIDC the principal amount of P50,300,000.00 with interests.

Pending appeal of the judgment in Civil Case No. 42228, upon motion of AIDC, the lower court issued a writ of
execution pending appeal. Upon AIDC's putting up of an P8,000,000.00 bond, a writ of execution dated May 12,
1982 was issued. Thereafter, petitioner Abelardo Magsajo, Sr., Deputy Sheriff of Rizal and appointed sheriff in Civil
Case No. 42228, caused the issuance and service upon respondents-spouses of a notice of sheriff sale dated May
20, 1982 on three (3) of their conjugal properties. Petitioner Magsajo then scheduled the auction sale of the
properties levied.

On June 9, 1982, private respondents filed a case of injunction against petitioners with the then Court of First
Instance of Rizal (Pasig), Branch XIII, to enjoin the auction sale alleging that petitioners cannot enforce the
judgment against the conjugal partnership levied on the ground that, among others, the subject loan did not redound
to the benefit of the said conjugal partnership. 2 Upon application of private respondents, the lower court issued a
temporary restraining order to prevent petitioner Magsajo from proceeding with the enforcement of the writ of
execution and with the sale of the said properties at public auction.

AIDC filed a petition for certiorari before the Court of Appeals,3 questioning the order of the lower court enjoining the
sale. Respondent Court of Appeals issued a Temporary Restraining Order on June 25, 1982, enjoining the lower
court4 from enforcing its Order of June 14, 1982, thus paving the way for the scheduled auction sale of respondents-
spouses conjugal properties.
On June 25, 1982, the auction sale took place. AIDC being the only bidder, was issued a Certificate of Sale by
petitioner Magsajo, which was registered on July 2, 1982. Upon expiration of the redemption period, petitioner
sheriff issued the final deed of sale on August 4, 1982 which was registered on August 9, 1983.

In the meantime, the respondent court, on August 4, 1982, decided CA-G.R. SP No. 14404, in this manner:

WHEREFORE, the petition for certiorari in this case is granted and the challenged order of the
respondent Judge dated June 14, 1982 in Civil Case No. 46309 is hereby set aside and nullified.
The same petition insofar as it seeks to enjoin the respondent Judge from proceeding with Civil
Case No. 46309 is, however, denied. No pronouncement is here made as to costs. . . . 5

On September 3, 1983, AIDC filed a motion to dismiss the petition for injunction filed before Branch XIII of the CFI of
Rizal (Pasig) on the ground that the same had become moot and academic with the consummation of the sale.
Respondents filed their opposition to the motion arguing, among others, that where a third party who claim is
ownership of the property attached or levied upon, a different legal situation is presented; and that in this case, two
(2) of the real properties are actually in the name of Encarnacion Ching, a non-party to Civil Case No. 42228.

The lower court denied the motion to dismiss. Hence, trial on the merits proceeded. Private respondents presented
several witnesses. On the other hand, petitioners did not present any evidence.

On September 18, 1991, the trial court promulgated its decision declaring the sale on execution null and void.
Petitioners appealed to the respondent court, which was docketed as CA-G.R. CV No. 29632.

On April 14, 1994, the respondent court promulgated the assailed decision, affirming the decision of the regional trial
court. It held that:

The loan procured from respondent-appellant AIDC was for the advancement and benefit of
Philippine Blooming Mills and not for the benefit of the conjugal partnership of petitioners-appellees.

xxx xxx xxx

As to the applicable law, whether it is Article 161 of the New Civil Code or Article 1211 of the Family
Code-suffice it to say that the two provisions are substantially the same. Nevertheless, We agree
with the trial court that the Family Code is the applicable law on the matter . . . . . . .

Article 121 of the Family Code provides that "The conjugal partnership shall be liable for: . . . (2) All
debts and obligations contracted during the marriage by the designated Administrator-Spouse for the
benefit of the conjugal partnership of gains . . . ." The burden of proof that the debt was contracted
for the benefit of the conjugal partnership of gains, lies with the creditor-party litigant claiming as
such. In the case at bar, respondent-appellant AIDC failed to prove that the debt was contracted by
appellee-husband, for the benefit of the conjugal partnership of gains.

The dispositive portion of the decision reads:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered DISMISSING the appeal.
The decision of the Regional Trial Court is AFFIRMED in toto.6

Petitioner filed a Motion for Reconsideration which was denied by the respondent court in a Resolution dated
November 28, 1994.7

Hence, this petition for review. Petitioner contends that the "respondent court erred in ruling that the conjugal
partnership of private respondents is not liable for the obligation by the respondent-husband."

Specifically, the errors allegedly committed by the respondent court are as follows:
I. RESPONDENT COURT ERRED IN RULING THAT THE OBLIGATION
INCURRED RESPONDENT HUSBAND DID NOT REDOUND TO THE BENEFIT OF
THE CONJUGAL PARTNERSHIP OF THE PRIVATE RESPONDENT.

II. RESPONDENT COURT ERRED IN RULING THAT THE ACT OF RESPONDENT


HUSBAND IN SECURING THE SUBJECT LOAN IS NOT PART OF HIS INDUSTRY,
BUSINESS OR CAREER FROM WHICH HE SUPPORTS HIS FAMILY.

Petitioners in their appeal point out that there is no need to prove that actual benefit redounded to the benefit of the
partnership; all that is necessary, they say, is that the transaction was entered into for the benefit of the conjugal
partnership. Thus, petitioners aver that:

The wordings of Article 161 of the Civil Code is very clear: for the partnership to be held liable, the
husband must have contracted the debt "for the benefit of the partnership, thus:

Art. 161. The conjugal partnership shall be liable for:

1) all debts and obligations contracted by the husband for the benefit
of the conjugal partnership . . . .

There is a difference between the phrases: "redounded to the benefit of" or "benefited from" (on the
one hand) and "for the benefit of (on the other). The former require that actual benefit must have
been realized; the latter requires only that the transaction should be one which normally would
produce benefit to the partnership, regardless of whether or not actual benefit accrued.8

We do not agree with petitioners that there is a difference between the terms "redounded to the benefit of" or
"benefited from" on the one hand; and "for the benefit of" on the other. They mean one and the same thing. Article
161 (1) of the Civil Code and Article 121 (2) of the Family Code are similarly worded, i.e., both use the term "for the
benefit of." On the other hand, Article 122 of the Family Code provides that "The payment of personal debts by the
husband or the wife before or during the marriage shall not be charged to the conjugal partnership except insofar
as they redounded to the benefit of the family." As can be seen, the terms are used interchangeably.

Petitioners further contend that the ruling of the respondent court runs counter to the pronouncement of this Court in
the case of Cobb-Perez vs. Lantin,9 that the husband as head of the family and as administrator of the conjugal
partnership is presumed to have contracted obligations for the benefit of the family or the conjugal partnership.

Contrary to the contention of the petitioners, the case of Cobb-Perez is not applicable in the case at bar. This Court
has, on several instances, interpreted the term "for the benefit of the conjugal partnership."

In the cases of Javier vs. Osmea, 10 Abella de Diaz vs. Erlanger & Galinger, Inc., 11 Cobb-Perez vs. Lantin 12and G-
Tractors, Inc. vs. Court of Appeals, 13 cited by the petitioners, we held that:

The debts contracted by the husband during the marriage relation, for and in the exercise of the
industry or profession by which he contributes toward the support of his family, are not his personal
and private debts, and the products or income from the wife's own property, which, like those of her
husband's, are liable for the payment of the marriage expenses, cannot be excepted from the
payment of such debts. (Javier)

The husband, as the manager of the partnership (Article 1412, Civil Code), has a right to embark the
partnership in an ordinary commercial enterprise for gain, and the fact that the wife may not approve
of a venture does not make it a private and personal one of the husband. (Abella de Diaz)

Debts contracted by the husband for and in the exercise of the industry or profession by which he
contributes to the support of the family, cannot be deemed to be his exclusive and private debts.
(Cobb-Perez).
. . . if he incurs an indebtedness in the legitimate pursuit of his career or profession or suffers losses
in a legitimate business, the conjugal partnership must equally bear the indebtedness and the
losses, unless he deliberately acted to the prejudice of his family. (G-Tractors)

However, in the cases of Ansaldo vs. Sheriff of Manila, Fidelity Insurance & Luzon Insurance Co.,14 Liberty
Insurance Corporation vs. Banuelos, 15 and Luzon Surety Inc. vs. De Garcia, 16 cited by the respondents, we ruled
that:

The fruits of the paraphernal property which form part of the assets of the conjugal partnership, are
subject to the payment of the debts and expenses of the spouses, but not to the payment of the
personal obligations (guaranty agreements) of the husband, unless it be proved that such obligations
were productive of some benefit to the family." (Ansaldo; parenthetical phrase ours.)

When there is no showing that the execution of an indemnity agreement by the husband redounded
to the benefit of his family, the undertaking is not a conjugal debt but an obligation personal to him.
(Liberty Insurance)

In the most categorical language, a conjugal partnership under Article 161 of the new Civil Code is
liable only for such "debts and obligations contracted by the husband for the benefit of the conjugal
partnership." There must be the requisite showing then of some advantage which clearly accrued to
the welfare of the spouses. Certainly, to make a conjugal partnership respond for a liability that
should appertain to the husband alone is to defeat and frustrate the avowed objective of the new
Civil Code to show the utmost concern for the solidarity and well-being of the family as a unit. The
husband, therefore, is denied the power to assume unnecessary and unwarranted risks to the
financial stability of the conjugal partnership. (Luzon Surety, Inc.)

From the foregoing jurisprudential rulings of this Court, we can derive the following conclusions:

(A) If the husband himself is the principal obligor in the contract, i.e., he directly received the money and services to
be used in or for his own business or his own profession, that contract falls within the term . . . . obligations for the
benefit of the conjugal partnership." Here, no actual benefit may be proved. It is enough that the benefit to the family
is apparent at the time of the signing of the contract. From the very nature of the contract of loan or services, the
family stands to benefit from the loan facility or services to be rendered to the business or profession of the
husband. It is immaterial, if in the end, his business or profession fails or does not succeed. Simply stated, where
the husband contracts obligations on behalf of the family business, the law presumes, and rightly so, that such
obligation will redound to the benefit of the conjugal partnership.

(B) On the other hand, if the money or services are given to another person or entity, and the husband acted only as
a surety or guarantor, that contract cannot, by itself, alone be categorized as falling within the context of "obligations
for the benefit of the conjugal partnership." The contract of loan or services is clearly for the benefit of the principal
debtor and not for the surety or his family. No presumption can be inferred that, when a husband enters into a
contract of surety or accommodation agreement, it is "for the benefit of the conjugal partnership." Proof must be
presented to establish benefit redounding to the conjugal partnership.

Thus, the distinction between the Cobb-Perez case, and we add, that of the three other companion cases, on the
one hand, and that of Ansaldo, Liberty Insurance and Luzon Surety, is that in the former, the husband contracted
the obligation for his own business; while in the latter, the husband merely acted as a surety for the loan contracted
by another for the latter's business.

The evidence of petitioner indubitably show that co-respondent Alfredo Ching signed as surety for the P50M loan
contracted on behalf of PBM. petitioner should have adduced evidence to prove that Alfredo Ching's acting as
surety redounded to the benefit of the conjugal partnership. The reason for this is as lucidly explained by the
respondent court:

The loan procured from respondent-appellant AIDC was for the advancement and benefit of
Philippine Blooming Mills and not for the benefit of the conjugal partnership of petitioners-appellees.
Philippine Blooming Mills has a personality distinct and separate from the family of petitioners-
appellees this despite the fact that the members of the said family happened to be stockholders of
said corporate entity.

xxx xxx xxx

. . . . The burden of proof that the debt was contracted for the benefit of the conjugal partnership of
gains, lies with the creditor-party litigant claiming as such. In the case at bar, respondent-appellant
AIDC failed to prove that the debt was contracted by appellee-husband, for the benefit of the
conjugal partnership of gains. What is apparent from the facts of the case is that the judgment debt
was contracted by or in the name of the Corporation Philippine Blooming Mills and appellee-husband
only signed as surety thereof. The debt is clearly a corporate debt and respondent-appellant's right
of recourse against appellee-husband as surety is only to the extent of his corporate stockholdings.
It does not extend to the conjugal partnership of gains of the family of petitioners-appellees. . . . . . .17

Petitioners contend that no actual benefit need accrue to the conjugal partnership. To support this contention, they
cite Justice J.B.L. Reyes' authoritative opinion in the Luzon Surety Company case:

I concur in the result, but would like to make of record that, in my opinion, the words "all debts and
obligations contracted by the husband for the benefit of the conjugal partnership" used in Article 161
of the Civil Code of the Philippines in describing the charges and obligations for which the conjugal
partnership is liable do not require that actual profit or benefit must accrue to the conjugal
partnership from the husband's transaction; but it suffices that the transaction should be one that
normally would produce such benefit for the partnership. This is the ratio behind our ruling in Javier
vs. Osmea, 34 Phil. 336, that obligations incurred by the husband in the practice of his profession
are collectible from the conjugal partnership.

The aforequoted concurring opinion agreed with the majority decision that the conjugal partnership should not be
made liable for the surety agreement which was clearly for the benefit of a third party. Such opinion merely
registered an exception to what may be construed as a sweeping statement that in all cases actual profit or benefit
must accrue to the conjugal partnership. The opinion merely made it clear that no actual benefits to the family need
be proved in some cases such as in the Javier case. There, the husband was the principal obligor himself. Thus,
said transaction was found to be "one that would normally produce . . . benefit for the partnership." In the later case
of G-Tractors, Inc., the husband was also the principal obligor not merely the surety. This latter case, therefore,
did not create any precedent. It did not also supersede the Luzon Surety Company case, nor any of the previous
accommodation contract cases, where this Court ruled that they were for the benefit of third parties.

But it could be argued, as the petitioner suggests, that even in such kind of contract of accommodation, a benefit for
the family may also result, when the guarantee is in favor of the husband's employer.

In the case at bar, petitioner claims that the benefits the respondent family would reasonably anticipate were the
following:

(a) The employment of co-respondent Alfredo Ching would be prolonged and he


would be entitled to his monthly salary of P20,000.00 for an extended length of time
because of the loan he guaranteed;

(b) The shares of stock of the members of his family would appreciate if the PBM
could be rehabilitated through the loan obtained;

(c) His prestige in the corporation would be enhanced and his career would be
boosted should PBM survive because of the loan.

However, these are not the benefits contemplated by Article 161 of the Civil Code. The benefits must be one directly
resulting from the loan. It cannot merely be a by-product or a spin-off of the loan itself.

In all our decisions involving accommodation contracts of the husband, 18 we underscored the requirement that:
"there must be the requisite showing . . . of some advantage which clearly accrued to the welfare of the spouses" or
"benefits to his family" or "that such obligations are productive of some benefit to the family." Unfortunately, the
petition did not present any proof to show: (a) Whether or not the corporate existence of PBM was prolonged and for
how many months or years; and/or (b) Whether or not the PBM was saved by the loan and its shares of stock
appreciated, if so, how much and how substantial was the holdings of the Ching family.

Such benefits (prospects of longer employment and probable increase in the value of stocks) might have been
already apparent or could be anticipated at the time the accommodation agreement was entered into. But would
those "benefits" qualify the transaction as one of the "obligations . . . for the benefit of the conjugal partnership"? Are
indirect and remote probable benefits, the ones referred to in Article 161 of the Civil Code? The Court of Appeals in
denying the motion for reconsideration, disposed of these questions in the following manner:

No matter how one looks at it, the debt/credit respondents-appellants is purely a corporate debt
granted to PBM, with petitioner-appellee-husband merely signing as surety. While such petitioner-
appellee-husband, as such surety, is solidarily liable with the principal debtor AIDC, such liability
under the Civil Code provisions is specifically restricted by Article 122 (par. 1) of the Family Code, so
that debts for which the husband is liable may not be charged against conjugal partnership
properties. Article 122 of the Family Code is explicit "The payment of personal debts contracted
by the husband or the wife before or during the marriage shall not be charged to the conjugal
partnership except insofar as they redounded to the benefit of the family.

Respondents-appellants insist that the corporate debt in question falls under the exception laid down
in said Article 122 (par. one). We do not agree. The loan procured from respondent-appellant AIDC
was for the sole advancement and benefit of Philippine Blooming Mills and not for the benefit of the
conjugal partnership of petitioners-appellees.

. . . appellee-husband derives salaries, dividends benefits from Philippine Blooming Mills (the debtor
corporation), only because said husband is an employee of said PBM. These salaries and benefits,
are not the "benefits" contemplated by Articles 121 and 122 of the Family Code. The "benefits"
contemplated by the exception in Article 122 (Family Code) is that benefit derived directly from the
use of the loan. In the case at bar, the loan is a corporate loan extended to PBM and used by PBM
itself, not by petitioner-appellee-husband or his family. The alleged benefit, if any, continuously
harped by respondents-appellants, are not only incidental but also speculative. 19

We agree with the respondent court. Indeed, considering the odds involved in guaranteeing a large amount
(P50,000,000.00) of loan, the probable prolongation of employment in PBM and increase in value of its stocks,
would be too small to qualify the transaction as one "for the benefit" of the surety's family. Verily, no one could say,
with a degree of certainty, that the said contract is even "productive of some benefits" to the conjugal partnership.

We likewise agree with the respondent court (and this view is not contested by the petitioners) that the provisions of
the Family Code is applicable in this case. These provisions highlight the underlying concern of the law for the
conservation of the conjugal partnership; for the husband's duty to protect and safeguard, if not augment, not to
dissipate it.

This is the underlying reason why the Family Code clarifies that the obligations entered into by one of the spouses
must be those that redounded to the benefit of the family and that the measure of the partnership's liability is to "the
extent that the family is benefited."20

These are all in keeping with the spirit and intent of the other provisions of the Civil Code which prohibits any of the
spouses to donate or convey gratuitously any part of the conjugal property. 21 Thus, when co-respondent Alfredo
Ching entered into a surety agreement he, from then on, definitely put in peril the conjugal property (in this case,
including the family home) and placed it in danger of being taken gratuitously as in cases of donation.

In the second assignment of error, the petitioner advances the view that acting as surety is part of the business or
profession of the respondent-husband.

This theory is new as it is novel.


The respondent court correctly observed that:

Signing as a surety is certainly not an exercise of an industry or profession, hence the cited cases
of Cobb-Perez vs. Lantin; Abella de Diaz vs. Erlanger & Galinger; G-Tractors, Inc. vs. CAdo not
apply in the instant case. Signing as a surety is not embarking in a business.22

We are likewise of the view that no matter how often an executive acted or was persuaded to act, as a surety for his
own employer, this should not be taken to mean that he had thereby embarked in the business of suretyship or
guaranty.

This is not to say, however, that we are unaware that executives are often asked to stand as surety for their
company's loan obligations. This is especially true if the corporate officials have sufficient property of their own;
otherwise, their spouses' signatures are required in order to bind the conjugal partnerships.

The fact that on several occasions the lending institutions did not require the signature of the wife and the husband
signed alone does not mean that being a surety became part of his profession. Neither could he be presumed to
have acted for the conjugal partnership.

Article 121, paragraph 3, of the Family Code is emphatic that the payment of personal debts contracted by the
husband or the wife before or during the marriage shall not be charged to the conjugal partnership except to the
extent that they redounded to the benefit of the family.

Here, the property in dispute also involves the family home. The loan is a corporate loan not a personal one. Signing
as a surety is certainly not an exercise of an industry or profession nor an act of administration for the benefit of the
family.

On the basis of the facts, the rules, the law and equity, the assailed decision should be upheld as we now uphold it.
This is, of course, without prejudice to petitioner's right to enforce the obligation in its favor against the PBM receiver
in accordance with the rehabilitation program and payment schedule approved or to be approved by the Securities &
Exchange Commission.

WHEREFORE, the petition for review should be, as it is hereby, DENIED for lack of merit.

SO ORDERED
G.R. No. 102330 November 25, 1998

TERESITA C. FRANCISCO, petitioner,


vs.
HON. COURT OF APPEALS; and CONCHITA EVANGELISTA and Her Husband SIMEON EVANGELISTA;
ARACELI F. MARILLA and Her Husband FREDDY MARILLA; ANTONIO V. FRANCISCO; and EUSEBIO
FRANCISCO, respondents.

QUISUMBING, J.:

This petition for review on certiorari seeks to reverse respondent appellate court's decision1 promulgated on October
7, 1991, affirming in toto the judgment of the Regional Trial Court which ruled,2 thus:

WHEREFORE, premises considered, this Court renders judgment in favor of the defendants and
against the plaintiff, as follows:

1) Ordering the dismissal of the Complaint with costs against the plaintiff;

2) Declaring the defendant Eusebio Francisco the administrator of the properties


described in paragraph eight (8) of the Complaint; and

3) Sentencing the plaintiff to pay the defendants the sum of P10,000.00 as and for
attorney's fees.

SO ORDERED.

Petitioner is the legal wife of private respondent Eusebio Francisco (Eusebio) by his second marriage. Private
respondents Conchita Evangelista, Araceli F. Marilla and Antonio Francisco are children of Eusebio by his first
marriage.

Petitioner alleges that since their marriage on February 10, 1962, she and Eusebio have acquired the following: (1)
a sari-sari store, a residential house and lot, and an apartment house, all situated at Col. S. Cruz St., Barangay
Balite, Rodriguez (formerly Montalban), Rizal, and; (2) a house and lot at Barrio San Isidro, Rodriguez, Rizal.
Petitioner further avers that these properties were administered by Eusebio until he was invalidated on account of
tuberculosis, heart disease and cancer, thereby, rendering him unfit to administer them. Petitioner also claims that
private respondents succeeded in convincing their father to sign a general power of attorney which authorized
Conchita Evangelista to administer the house and lot together with the apartments situated in Rodriguez, Rizal.

On August 31, 1988, petitioner filed a suit for damages and for annulment of said general power of attorney, and
thereby enjoining its enforcement. Petitioner also sought to be declared as the administratrix of the properties in
dispute. In due course, the trial court rendered judgment in favor of private respondents. It held that the petitioner
failed to adduce proof that said properties were acquired during the existence of the second conjugal partnership, or
that they pertained exclusively to the petitioner. Hence, the court ruled that those properties belong exclusively to
Eusebio, and that he has the capacity to administer them.

On appeal, the Court of Appeals affirmed in toto the decision of the trial court. Hence, this petition.

Petitioner raised the following errors allegedly committed by the appellate court:

FIRST ASSIGNMENT OF ERROR

RESPONDENT COURT ERRED IN APPLYING ARTICLES 160 AND 158, UNDER TITLE VI OF
THE (NEW) CIVIL CODE BECAUSE SAID TITLE, TOGETHER WITH THE OTHERS, HAVE (SIC)
ALREADY BEEN REPEALED BY ARTICLE 253 OF THE FAMILY CODE.
SECOND ASSIGNMENT OF ERROR

RESPONDENT COURT FURTHER ERRED IN NOT APPLYING ARTICLE 124 OF THE FAMILY
CODE. 3

But in her reply, petitioner posed the sole issue "whether or not Article 116 of the Family Code applies to this case
because Article 253 of the same Code [which] expressly repeals Arts. 158 and 160 of the Civil Code"4

To our mind, the crucial issue in this petition is whether or not the appellate court committed reversible error in
affirming the trial court's ruling that the properties, subject matter of controversy, are not conjugal but the capital
properties of Eusebio exclusively.

Indeed, Articles 1585 and 1606 of the New Civil Code have been repealed by the Family Code of the Philippines
which took effect on August 3, 1988. The aforecited articles fall under Title VI, Book I of the New Civil Code which
was expressly repealed by Article 2547 (not Article 253 as alleged by petitioner in her petition and reply) of the
Family Code. Nonetheless, we cannot invoke the new law in this case without impairing prior vested rights pursuant
to Article 2568 in relation to Article 1059 (second paragraph) of the Family Code. Accordingly, the repeal of Articles
158 and 160 of the New Civil Code does not operate to prejudice or otherwise affect rights which have become
vested or accrued while the said provisions were in force. 10 Hence, the rights accrued and vested while the cited
articles were in effect survive their repeal. 11We shall therefore resolve the issue of the nature of the contested
properties based on the provisions of the New Civil Code.

Petitioner contends that the subject properties are conjugal, thus, she should administer these on account of the
incapacity of her husband. On the other hand, private respondents maintain that the assets in controversy claimed
by petitioner as "conjugal" are capital properties of Eusebio exclusively as these were acquired by the latter either
through inheritance or through his industry prior to his second marriage. Moreover, they stress that Eusebio is not
incapacitated contrary to petitioner's allegation.

We find petitioner's contention lacks merit, as hereafter elucidated.

Art. 160 of the New Civil Code provides that "all property of the marriage is presumed to belong to the conjugal
partnership, unless it be proved that it pertains exclusively to the husband or to the wife". However, the party who
invokes this presumption must first prove that the property in controversy was acquired during the marriage. 12 Proof
of acquisition during the coverture is a condition sine qua non for the operation of the presumption in favor of the
conjugal partnership. 13 The party who asserts this presumption must first prove said time element. Needless to say,
the presumption refers only to the property acquired during the marriage and does not operate when there is no
showing as to when property alleged to be conjugal was acquired. 14 Moreover, this presumption in favor of
conjugality is rebuttable, but only with strong, clear and convincing evidence; there must be a strict proof of
exclusive ownership of one of the spouses. 15

In this case, petitioner failed to adduce ample evidence to show that the properties which she claimed to be conjugal
were acquired during her marriage with Eusebio.

With respect to the land at Col. Cruz St., Balite, Rodriguez, Rizal, petitioner failed to refute the testimony of Eusebio
that he inherited the same from his parents. Interestingly, petitioner even admitted that Eusebio brought into their
marriage the said land, albeit in the concept of a possessor only as it was not yet registered in his name.

Whether Eusebio succeeded to the property prior or subsequent to his second marriage is inconsequential. The
property should be regarded as his own exclusively, as a matter of law, pursuant to Article 14816 of the New Civil
Code.

Essentially, property already owned by a spouse prior to the marriage, and brought to the marriage, is considered
his or her separate property. 17 Acquisitions by lucrative title refers to properties acquired gratuitously and include
those acquired by either spouse during the marriage by inheritance, devise, legacy, or donation. 18 Hence, even if it
be assumed that Eusebio's acquisition by succession of the land took place during his second marriage, the land
would still be his "exclusive property" because it was acquired by him, "during the marriage, by lucrative title." 19
As regards the house, apartment and sari-sari store, private respondents aver that these properties were either
constructed or established by their father during his first marriage. On the other hand, petitioner insists that the said
assets belong to conjugal partnership. In support of her claim, petitioner relied on the building permits for the house
and the apartment, with her as the applicant although in the name of Eusebio. She also invoked the business
license for the sari-sari store issued in her name alone.

It must be emphasized that the aforementioned documents in no way prove that the improvements were acquired
during the second marriage. And the fact that one is the applicant or licensee is not determinative of the issue as to
whether or not the property is conjugal or not. As the appellate court aptly noted:

. . . . And the mere fact that plaintiff-appellant [petitioner herein] is the licensee of the sari-sari store
(Exhibit "F-3"; Exhibit "G", pp. 44-47, Record) or is the supposed applicant for a building permit does
not establish that these improvements were acquired during her marriage with Eusebio Francisco,
especially so when her exhibits ("D-1", "E", "E-I", "T", "T-1", "T-2", "U", "U-l" and "U-2"; pp. 38-40;
285-290, Record; TSN, January 17, 1989, page 6-7) are diametrically opposed to her pretense as
they all described Eusebio Francisco as the owner of the structures (Article 1431, New Civil
Code; Section 4. Rule 129, Revised Rules on Evidence).

Neither is it plausible to argue that the sari-sari store constructed on the land of Eusebio Francisco
has thereby become conjugal for want of evidence to sustain the proposition that it was constructed
at the expense of their partnership (second paragraph, Article 158, New Civil Code). Normally, this
absence of evidence on the source of funding will call for the application of the presumption under
Article 160 of the New Civil Code that the store is really conjugal but it cannot be so in this particular
case again, by reason of the dearth in proof that it was erected during the alleged second marriage
(5 Sanchez Roman 840-841; 9 Manresa; cited in Civil Code of the Philippines by Tolentino, Volume
1, 1983 Edition, page
421).20

Regarding the property at San Isidro, Rodriguez, Rizal, private respondents assert that their father purchased it
during the lifetime of their mother. In contrast, petitioner claims ownership over said property in as much as the title
thereto is registered in the name of "Eusebio Francisco, married to Teresita Francisco."

It must be stressed that the certificate of title upon which petitioner anchors her claim is inadequate. The fact that
the land was registered in the name of "Eusebio Francisco, married to Teresita Francisco", is no proof that the
property was acquired during the spouses coverture. Acquisition of title and registration thereof are two different
acts. 21 It is well settled that registration does not confer title but merely confirms one already existing. 22 The phrase
"married to" preceding "Teresita Francisco" is merely descriptive of the civil status of Eusebio Francisco. 23

In the light of the foregoing circumstances, the appellate court cannot be said to have been without valid basis in
affirming the lower court's ruling that the properties in controversy belong exclusively to Eusebio.

Now, insofar as the administration of the subject properties is concerned, it follows that Eusebio shall retain control
thereof considering that the assets are exclusively his capital. 24 Even assuming for the sake of argument that the
properties are conjugal, petitioner cannot administer themn inasmuch as Eusebio is not incapacitated. Contrary to
the allegation of petitioner, Eusebio, as found by the lower court, is not suffering from serious illness so as to impair
his fitness to administer his properties. That he is handicapped due to a leg injury sustained in a bicycle accident,
allegedly aggravated when petitioner pushed him to the ground in one of their occasional quarrels, did not render
him, in the Court's view, incapacitated to perform acts of administration over his own properties.

WHEREFORE, petition is hereby DENIED. The Decision of the Court of Appeals is AFFIRMED.

Costs against petitioner.

SO ORDERED.

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